[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS ELEVENTH CIRCUIT 01/31/2000 THOMAS K. KAHN CLERK No. 98-5059
D. C. Docket No. 97-6142-CR-KLR
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SCOTT T. JAMIESON,
Defendant-Appellant.
Appeal from the United States District Court for the Southern District of Florida
(January 31, 2000)
Before COX and DUBINA, Circuit Judges, and KRAVITCH, Senior Circuit Judge.
DUBINA, Circuit Judge: Appellant Scott Jamieson (“Jamieson”) appeals his 71-month sentence for
possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1).
Jamieson argues that the district court based his offense level upon an erroneous
interpretation of 18 U.S.C. § 921(a)(30)(A)(i). We agree. Therefore, we vacate
Jamieson’s sentence and remand this case for resentencing.
I. BACKGROUND
A. Procedural History
A federal grand jury in the Southern District of Florida returned an
indictment charging Jamieson with felonious possession of a firearm. Jamieson
entered into a written plea agreement with the government. Under the terms of the
plea agreement, Jamieson agreed to plead guilty to the indictment and the
government agreed to make a non-binding recommendation at sentencing that
Jamieson be awarded a three-point offense level reduction for acceptance of
responsibility under U.S.S.G. § 3E1.1.
The district court accepted Jamieson’s guilty plea. To aid the district court
in sentencing, the Probation Officer prepared a pre-sentence investigation report
(“PSI”). Jamieson filed written objections to the PSI and specifically objected to
2 the enhancement for possession of an allegedly stolen firearm. The government
filed no written objections.
In a second addendum to the PSI, the probation officer agreed with
Jamieson’s objection and deleted the two-level enhancement for possession of an
allegedly stolen firearm. The probation officer further noted that the government
had “orally reported” objections to the PSI. The government argued that
Jamieson’s firearm was a prohibited semiautomatic assault weapon described in 18
U.S.C. § 921(a)(30), and therefore qualified him for the enhanced base offense
level of 22 pursuant to U.S.S.G. § 2K2.1(a)(3). The probation officer then
submitted a revised PSI reflecting the deletion of the two-level enhancement for
the allegedly stolen firearm, but increasing the base offense level by two levels
pursuant to § 2K2.1(a)(3). The PSI also reflected the 3-level adjustment for
acceptance of responsibility. These changes resulted in a total offense level of 21,
which was identical to the level set forth in the original PSI.
At his sentencing hearing, Jamieson objected to the government’s oral
request for an enhancement of the base offense level due to his alleged possession
of a prohibited semiautomatic assault weapon. In an attempt to meet its burden of
proof, the government presented the testimony of firearms expert Agent Steve
Barborini of the Bureau of Alcohol, Tobacco and Firearms. According to Agent
3 Barborini’s testimony, under current federal law, a semiautomatic rifle that can
accept a magazine of over five rounds is illegal if it has two or more of the
following: a protruding pistol grip, a bayonet lug or flash hider, a threaded barrel,
or a shroud designed so that the rifle could be gripped without one’s hand being
burned. Agent Barborini testified that the Norinco firearm at issue holds a 30-
round magazine and is a semiautomatic gas operated rifle. He further testified that
Norinco changed the way it manufactured the firearm at issue after Congress
passed a new law banning certain types of assault weapons. Finally, Agent
Barborini testified that, as a result of the redesign, the firearm at issue did not
possess two of the prohibited items, and thus, was a legal weapon.
Even though Agent Barborini testified that the firearm at issue was not an
illegal semiautomatic assault weapon, the district court decided to apply the
enhancement of U.S.S.G. § 2K2.1(a)(3) because it interpreted 18 U.S.C. §
921(a)(30)(A)(i) to prohibit any semiautomatic assault weapon manufactured by
Norinco. We conclude that the district court’s interpretation of 18 U.S.C. §
921(a)(30)(A)(i) is incorrect. Neither the language of § 921(a)(30)(A)(i) nor the
legislative history supports such an interpretation.
4 II. STANDARD OF REVIEW
This court reviews the district court’s findings of fact for clear error and its
application of the sentencing guidelines to those facts de novo. See United States
v. Gallo, 195 F.3d 1278, 1280-81 (11th Cir. 1999); United States v. Tillmon, 195
F.3d 640, 642 (11th Cir. 1999).
III. DISCUSSION
Jamieson argues on appeal that the district court incorrectly interpreted 18
U.S.C. § 921(a)(30)(A)(i) in calculating his base offense level under U.S.S.G. §
2K2.1(a)(3). Specifically, Jamieson contends that although § 921 prohibits all
models of Norinco’s “Avtomat Kalashnikovs,” it does not prohibit all Norinco
weapons, as the district court concluded. Moreover, Jamieson underscores Agent
Barborini’s testimony that the firearm at issue was a legal weapon because it did
not have two or more of the features prohibited in § 921(a)(30)(B). The
government agrees with Jamieson’s position and confesses error.1
Notwithstanding the government’s admission of error, we feel compelled to briefly
address this first impression issue.
1 We appreciate the government’s candor in not only admitting that the district court committed error, but also in acknowledging its contribution to the district court’s confusion. 5 On September 13, 1994, Congress passed the Violent Crime Control and
Law Enforcement Act of 1994, Pub. L. No. 103-322, 108 Stat. 1796 (the “Violent
Crime Control Act”), in order to amend and expand various existing statutory and
regulatory provisions found in 18 U.S.C. §§ 921-930 relating to the manufacture,
distribution, and possession of certain weapons. See National Rifle Ass’n of
America v. Magaw, 132 F.3d 272, 277 (6th Cir. 1997); Navegar, Inc. v. United
States, 103 F.3d 994, 997 (D.C. Cir. 1997). Of significance to this appeal, the
1994 Violent Crime Control Act banned the manufacture, transfer, or possession of
semiautomatic assault weapons. See 18 U.S.C. §§ 922(v)(1), 922(w)(1). Title 18
U.S.C. § 921(a)(30) defines a “semiautomatic assault weapon” as one of the nine
specified firearms listed in § 921(a)(30)(A) or as a semiautomatic rifle that meets
certain requirements as listed in § 921(a)(30)(B). Section 921(a)(30)(A) provides:
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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS ELEVENTH CIRCUIT 01/31/2000 THOMAS K. KAHN CLERK No. 98-5059
D. C. Docket No. 97-6142-CR-KLR
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SCOTT T. JAMIESON,
Defendant-Appellant.
Appeal from the United States District Court for the Southern District of Florida
(January 31, 2000)
Before COX and DUBINA, Circuit Judges, and KRAVITCH, Senior Circuit Judge.
DUBINA, Circuit Judge: Appellant Scott Jamieson (“Jamieson”) appeals his 71-month sentence for
possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1).
Jamieson argues that the district court based his offense level upon an erroneous
interpretation of 18 U.S.C. § 921(a)(30)(A)(i). We agree. Therefore, we vacate
Jamieson’s sentence and remand this case for resentencing.
I. BACKGROUND
A. Procedural History
A federal grand jury in the Southern District of Florida returned an
indictment charging Jamieson with felonious possession of a firearm. Jamieson
entered into a written plea agreement with the government. Under the terms of the
plea agreement, Jamieson agreed to plead guilty to the indictment and the
government agreed to make a non-binding recommendation at sentencing that
Jamieson be awarded a three-point offense level reduction for acceptance of
responsibility under U.S.S.G. § 3E1.1.
The district court accepted Jamieson’s guilty plea. To aid the district court
in sentencing, the Probation Officer prepared a pre-sentence investigation report
(“PSI”). Jamieson filed written objections to the PSI and specifically objected to
2 the enhancement for possession of an allegedly stolen firearm. The government
filed no written objections.
In a second addendum to the PSI, the probation officer agreed with
Jamieson’s objection and deleted the two-level enhancement for possession of an
allegedly stolen firearm. The probation officer further noted that the government
had “orally reported” objections to the PSI. The government argued that
Jamieson’s firearm was a prohibited semiautomatic assault weapon described in 18
U.S.C. § 921(a)(30), and therefore qualified him for the enhanced base offense
level of 22 pursuant to U.S.S.G. § 2K2.1(a)(3). The probation officer then
submitted a revised PSI reflecting the deletion of the two-level enhancement for
the allegedly stolen firearm, but increasing the base offense level by two levels
pursuant to § 2K2.1(a)(3). The PSI also reflected the 3-level adjustment for
acceptance of responsibility. These changes resulted in a total offense level of 21,
which was identical to the level set forth in the original PSI.
At his sentencing hearing, Jamieson objected to the government’s oral
request for an enhancement of the base offense level due to his alleged possession
of a prohibited semiautomatic assault weapon. In an attempt to meet its burden of
proof, the government presented the testimony of firearms expert Agent Steve
Barborini of the Bureau of Alcohol, Tobacco and Firearms. According to Agent
3 Barborini’s testimony, under current federal law, a semiautomatic rifle that can
accept a magazine of over five rounds is illegal if it has two or more of the
following: a protruding pistol grip, a bayonet lug or flash hider, a threaded barrel,
or a shroud designed so that the rifle could be gripped without one’s hand being
burned. Agent Barborini testified that the Norinco firearm at issue holds a 30-
round magazine and is a semiautomatic gas operated rifle. He further testified that
Norinco changed the way it manufactured the firearm at issue after Congress
passed a new law banning certain types of assault weapons. Finally, Agent
Barborini testified that, as a result of the redesign, the firearm at issue did not
possess two of the prohibited items, and thus, was a legal weapon.
Even though Agent Barborini testified that the firearm at issue was not an
illegal semiautomatic assault weapon, the district court decided to apply the
enhancement of U.S.S.G. § 2K2.1(a)(3) because it interpreted 18 U.S.C. §
921(a)(30)(A)(i) to prohibit any semiautomatic assault weapon manufactured by
Norinco. We conclude that the district court’s interpretation of 18 U.S.C. §
921(a)(30)(A)(i) is incorrect. Neither the language of § 921(a)(30)(A)(i) nor the
legislative history supports such an interpretation.
4 II. STANDARD OF REVIEW
This court reviews the district court’s findings of fact for clear error and its
application of the sentencing guidelines to those facts de novo. See United States
v. Gallo, 195 F.3d 1278, 1280-81 (11th Cir. 1999); United States v. Tillmon, 195
F.3d 640, 642 (11th Cir. 1999).
III. DISCUSSION
Jamieson argues on appeal that the district court incorrectly interpreted 18
U.S.C. § 921(a)(30)(A)(i) in calculating his base offense level under U.S.S.G. §
2K2.1(a)(3). Specifically, Jamieson contends that although § 921 prohibits all
models of Norinco’s “Avtomat Kalashnikovs,” it does not prohibit all Norinco
weapons, as the district court concluded. Moreover, Jamieson underscores Agent
Barborini’s testimony that the firearm at issue was a legal weapon because it did
not have two or more of the features prohibited in § 921(a)(30)(B). The
government agrees with Jamieson’s position and confesses error.1
Notwithstanding the government’s admission of error, we feel compelled to briefly
address this first impression issue.
1 We appreciate the government’s candor in not only admitting that the district court committed error, but also in acknowledging its contribution to the district court’s confusion. 5 On September 13, 1994, Congress passed the Violent Crime Control and
Law Enforcement Act of 1994, Pub. L. No. 103-322, 108 Stat. 1796 (the “Violent
Crime Control Act”), in order to amend and expand various existing statutory and
regulatory provisions found in 18 U.S.C. §§ 921-930 relating to the manufacture,
distribution, and possession of certain weapons. See National Rifle Ass’n of
America v. Magaw, 132 F.3d 272, 277 (6th Cir. 1997); Navegar, Inc. v. United
States, 103 F.3d 994, 997 (D.C. Cir. 1997). Of significance to this appeal, the
1994 Violent Crime Control Act banned the manufacture, transfer, or possession of
semiautomatic assault weapons. See 18 U.S.C. §§ 922(v)(1), 922(w)(1). Title 18
U.S.C. § 921(a)(30) defines a “semiautomatic assault weapon” as one of the nine
specified firearms listed in § 921(a)(30)(A) or as a semiautomatic rifle that meets
certain requirements as listed in § 921(a)(30)(B). Section 921(a)(30)(A) provides:
The term “semiautomatic assault weapon” means -
(A) any of the firearms, or copies or duplicates of the firearms in any caliber, known as - (i) Norinco, Mitchell, and Poly Technologies Avtomat Kalashnikovs (all models); (ii) Action Arms Israeli Military Industries UZI and Galil; (iii) Beretta Ar70 (SC-70); (iv) Colt AR-15; (v) Fabrique National FN/FAL, FN/LAR, and FNC; (vi) SWD M-10, M-11, M-11/9, M-12;
6 (vii) Steyr AUG; (viii) INTRATEC TEC-9, TEC-DC9 and TEC-22; and (ix) revolving cylinder shotguns, such as (or similar to) the Street Sweeper and Striker 12.
18 U.S.C. § 921(a)(30)(A)(i)-(ix). Congress passed § 921(a)(3)(A)(i)-(ix) in order
to ban the specific weapons listed therein, including in sub-section (i) “(all
models)” of Norinco “Avtomat Kalashnikovs.” In addition to banning certain
specific firearms, Congress enacted 18 U.S.C. § 921(a)(30)(B) to ban
semiautomatic rifles regardless of make, model, or identity of manufacturer, if they
had two or more of the proscribed characteristics listed in § 921(a)(30)(B).
After passage of the Violent Crime Control Act, the Sentencing Commission
established a specific base offense level of 22 for felons, like Jamieson, who had
one prior felony conviction of a crime of violence and who were convicted of
being a felon-in-possession under 18 U.S.C. § 922(g)(1), if the offense involved a
firearm described in 18 U.S.C. § 921(a)(30). See U.S.S.G. § 2K2.1(a)(3). In
applying 18 U.S.C. § 921(a)(30) to Jamieson, the district court, without argument
to the contrary, mistakenly concluded that all Norinco weapons came within the
ambit of 18 U.S.C. § 921(a)(30)(A)(i). Accordingly, the district court decided that
the enhanced sentence provided in U.S.S.G. § 2K2.1(a)(3) was appropriate for the
Norinco firearm at issue.
7 We hold that the district court’s conclusion contradicts the language of §
921(a)(30) and the legislative history of the Violent Crime Control Act. Congress
narrowly crafted the assault weapons ban to limit the number of weapons being
banned. See H.R. Rep. No. 103-489, at 6 (1994), reprinted in 1994 U.S.C.C.A.N.
1801, 1803. Moreover, the provisions of the Violent Crime Control Act set forth
in 18 U.S.C. § 922 buttress the conclusion that not all Norinco weapons are illegal.
The Violent Crime Control Act “exempts certain weapons from its prohibitions, as
listed in § 922, Appendix A, and described in § 922(v)(3).” Magaw, 132 F.3d at
277. Appendix A to § 922 lists a variety of weapons manufactured by Norinco
which are not prohibited. Although the Appendix does not include Jamieson’s
firearm, the fact that a firearm is not listed in Appendix A does not mean that the
firearm is prohibited. See 18 U.S.C. § 922(v)(1)(3).
In summary, we conclude that 18 U.S.C. § 921(a)(30) does not encompass
all Norinco weapons. Section 921(a)(30)(A)(i) only bans all models of Norinco
Avtomat Kalashnikovs. There was no testimony at sentencing, nor was it the
government’s position, that Jamieson’s weapon was an Avtomat Kalashnikov.
Moreover, Jamieson’s sentence could not be enhanced pursuant to § 921(a)(30)(B).
Section 921(a)(30)(B) includes only semiautomatic weapons, regardless of make,
which display two or more proscribed characteristics. At sentencing, the
8 government stated that Jamieson’s weapon did not display two or more of those
prohibited characteristics. Therefore, the district court erred in concluding that all
Norinco weapons fit within the ambit of 18 U.S.C. § 921(a)(30)(A)(i), and in
subsequently applying the offense level in U.S.S.G. § 2K2.1(a)(3). Because
Jamieson’s sentence was based on an erroneous interpretation of the law, we vacate
his sentence and remand this case to the district court for resentencing consistent
with this opinion.
VACATED and REMANDED.