filed: February 14, 1992; As Corrected March 6, 1992.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE. (D.C. Criminal Action No. 90-00080)
Before: Mansmann, Nygaard and Rosenn, Circuit Judges.
Appellant, Ombey Mobley, pleaded guilty to violating 18 U.S.C. § 922(g)(1), possession of a firearm by a convicted felon, and received a two level enhancement under United States Sentencing Commission, Guidelines Manual, § 2K2.1(b)(2) (Nov. 1990), because his gun was stolen. He challenges the Guidelines' enhancement on several statutory and constitutional grounds, with the unifying argument being that the government must show he knew the gun was stolen to enhance his sentence. We will affirm the judgment of sentence.
The facts are simple. Mobley and several friends were driving northward on Interstate 95 in Delaware when they were stopped for speeding. After a Delaware State Police Officer stopped the car and got consent to search it, he did so. He found ammunition on the front seat and $6,000 in cash in the pocket of one of Mobley's friends. Searching further, the officer found a handgun under Mobley's seat. He arrested Mobley.
Mobley admitted he and another passenger bought the gun for $160 in Columbia, South Carolina, from a drug dealer named "Keith". He admitted that the gun was operable, that he knew it was in the car, and said he bought it "to protect us." The gun was stolen though there was no objective evidence that Mobley knew it.
Mobley had a criminal record for drug and firearm offenses. He pleaded guilty to possession of a firearm by a convicted felon, 18 U.S.C. § 922(g)(1). Section 922(g)(1) provides: "It shall be unlawful for any person -- who is under indictment for, or who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year . . . to ship or transport any firearm or ammunition in interstate or foreign commerce."
At sentencing the district court found Mobley's criminal history category to be IV. It applied U.S.S.G. § 2K2.1, "Unlawful Receipt, Possession, or Transportation of Firearms or Ammunition," and found his base offense level to be 12. The court subtracted 2 levels for affirmative acceptance of responsibility, under § 3E1.1, and added 2 levels for possessing a stolen gun, under § 2K2.1(b)(2). The Guidelines yielded a range of 21 to 27 months, and the court sentenced Mobley to 27 months of incarceration followed by three years of supervised release.
Section 2K2.1(b)(2) provides: "If the firearm was stolen or had an altered or obliterated serial number, increase by 2 levels." The district court did not find that Mobley knew or had reason to know the gun was stolen. Instead it simply applied the enhancement "because the gun was stolen." Mobley challenges this enhancement. He argues principles of statutory construction mandate that we read § 2K2.1(b)(2) to include a scienter element. He further argues that without this scienter requirement, the enhancement violates the Due Process Clause of the Fifth Amendment because it amounts to a new strict liability statute, punishing him without a finding of culpability. We have plenary review of issues of law raised by the application of the Guidelines. United States v. Williams, 917 F.2d 112, 113 (3d Cir. 1990).
Whether U.S.S.G. § 2K2.1(b)(2) should be read to imply a scienter requirement is new before this court. Four other courts of appeals have addressed a similar issue. They have concluded that the enhancement is plain on its face and have refused to imply a scienter element. United States v. Singleton, 946 F.2d 23 (5th Cir. 1991); United States v. Taylor, 290 App. D.C. 358, 937 F.2d 676 (D.C. Cir. 1991); United States v. Peoples, 904 F.2d 23 (9th Cir. 1990) (per curiam); United States v. Anderson, 886 F.2d 215 (8th Cir. 1989) (per curiam). We agree.
Mobley invokes three well established principles of statutory construction that he thinks compel us to infer a knowledge requirement from § 2K2.1(b)(2). They are the rule of lenity, the presumption against strict liability in criminal law, and the principle that requires a statute to be read as a whole and in harmony with others.
The rule of lenity succinctly is: Where there is ambiguity in a criminal statute, doubts are resolved in favor of defendant. United States v. Bass, 404 U.S. 336, 92 S. Ct. 515, 523, 30 L. Ed. 2d 488 (1971). The rule applies to criminal prohibitions, as well as the penalties. Bifulco v. United States, 447 U.S. 381, 100 S. Ct. 2247, 2252, 65 L. Ed. 2d 205 (1980). For the rule to apply, the statute must contain an ambiguity. 100 S. Ct. at 2252. Where, however, the statute is clear, the rule may not be used to contravene its plain meaning.
We construe terms of the Guidelines according to their plain meaning. United States v. Gonzalez, 918 F.2d 1129, 1139 (3d Cir. 1990). Here § 2K2.1(b)(2) unambiguously provides that "if the firearm was stolen" the sentence shall be increased. The requisite ambiguity is absent.
As the Court of Appeals for the District of Columbia Circuit noted, an earlier Guidelines version, § 1B1.3(a)(4), provided that "specific offense characteristics . . . shall be determined on the basis of . . . the defendant's state of mind, intent, motive and purpose in committing the offense." See Taylor, 937 F.2d at 682. The Sentencing Commission amended this section and omitted the blanket scienter requirement. Section 1B1.3(a)(4) now directs courts to consider the "information specified in the applicable guideline." Here the applicable guideline is § 2K2.1(b)(2); it contains no scienter element.
The Commission recently amended § 2K2.1 and § 2K2.2. The earlier version of § 2K2.1(b)(1) read "if the firearm was stolen or had an altered or obliterated serial number, increase by 1 level." The Commission renumbered and amended this section to increase the level to 2. U.S.S.G. § 2K2.1(b)(2). And the earlier versions of § 2K2.2(b)(1) and § 2K2.3(b)(2)(c) read respectively "If the firearm was stolen or had an altered or obliterated serial number, increase by 1" and "If the defendant knew or had reason to believe that a firearm was stolen or had an altered or obliterated serial number, increase by 1." (Emphasis added). The Commission consolidated these sections into new § 2K2.2(b)(2), which now reads "If the firearm was stolen or had an altered or obliterated serial number, increase by 2 levels." In amending these sections, the Commission also added new § 2K2.3, "Receiving, Transporting, Shipping or Transferring a Firearm or Ammunition With Intent to Commit Another Offense, or With Knowledge that It Will be Used in Committing Another Crime." The Commission intended this section to "address transfer of a weapon with intent or knowledge that it will be used to commit another offense." U.S.S.G., App. C, at C.97 (emphasis added).
The Commission has been deliberate when it included a scienter element as other sections confirm. See, e.g., U.S.S.G. § 2K1.3(b)(2) (enhancement when "offense involved explosives that the defendant knew or had reason to believe were stolen"); U.S.S.G. § 3C1.1 (enhancement when "defendant wilfully obstructed or impeded, or attempted to impede, the administration of Justice"). It is a fundamental canon of statutory construction that where sections of a statute do not include a specific term used elsewhere in the statute, the drafters did not wish such a requirement to apply.
Section 2K2.1(b)(2) is clear and unequivocal. We refuse to find ambiguity where none exists to defeat the plain meaning of the Guidelines. See Bifulco, 100 S. Ct. at 2252. Because "the touchstone of the rule of lenity is statutory ambiguity," 100 S. Ct. at 2252, the rule does not apply to § 2K2.1(b)(2).
Mobley would also have us invoke the presumption against strict liability in criminal law. He argues that a distinction in sentences based solely on the stolen status of the gun is arbitrary and capricious without evidence of scienter. This distinction, he argues, serves none of the purposes of sentencing -- retribution, general deterrence, specific deterrence, and rehabilitation -- so that § 2K2.1(b)(2) is in discord with the purpose of the Guidelines.
These statutory arguments cannot stand given that the Commission has intentionally imposed strict liability for § 2K2.1(b)(2). Furthermore, § 2K2.1(b)(2) is not in discord with the purposes of the Guidelines because the Guidelines are essentially offense-based and, as such, philosophically justified by a retributivist and, to a lesser extent, a deterrence theory of penology. Mobley's contentions fail, for the enhancement is rationally related to both theories and functions as a regulatory component in Congress' scheme to control gun trade. See United States v. Freed, 401 U.S. 601, 91 S. Ct. 1112, 28 L. Ed. 2d 356 (1971).
In Freed the defendant was indicted for possessing unregistered hand grenades under 26 U.S.C. § 5861(d) (1964), which makes it illegal for any person "to receive or possess a firearm which is not registered to him." The trial court dismissed the indictment because the statute provided no scienter element. The Supreme Court held that the statute required no specific intent because it was "a regulatory measure in the interest of the public safety, which may well be premised on the theory that one would hardly be surprised to learn that possession of hand grenades is not an innocent act." 91 S. Ct. at 1118. Because § 2K2.1(b)(2) also regulates activities affecting public health, safety, and welfare, it requires no scienter element. See United States v. Dotterweich, 320 U.S. 277, 64 S. Ct. 134, 88 L. Ed. 48 (1943) (statute regulating adulterated or misbranded drugs); United States v. Engler, 806 F.2d 425 (3d Cir. 1986) (statute regulating selling of wildlife).
Mobley argues he is neither more culpable nor more dangerous to society with a stolen gun. He overlooks the larger problem. Mobley pleaded guilty to violating 18 U.S.C. § 922(g). Section 922(g) is part of the Gun Control Act of 1968, Pub.L. 90-618, 82 Stat. 1213, amending the Omnibus Crime Control and Safe Streets Act of 1968, Pub.L. 90-351, 82 Stat. 197. It is not just a statute criminalizing possession of a firearm by convicted felons; it is part of a comprehensive scheme to regulate the movement of firearms. Barrett v. United States, 423 U.S. 212, 96 S. Ct. 498, 502, 46 L. Ed. 2d 450 (1976) ("the Act clearly applies to and regulates  sales of a gun"). In Barrett the Supreme Court articulated the purpose behind § 922(g):
The very structure of the Gun Control Act demonstrates that Congress did not intend merely to restrict interstate sales but sought broadly to keep firearms away from persons Congress classified as potentially irresponsible and dangerous [convicted felons]. These persons are comprehensively barred by the Act from acquiring firearms by any means. Thus, § 922(d) prohibits a licensee from knowingly selling or otherwise disposing of any firearm . . . to the same categories of potentially irresponsible persons. . . .
Similarly, § 922(g) prohibits the same categories of potentially irresponsible persons from shipping or transporting any firearm in interstate commerce or, see 18 U.S.C. § 2(b), causing it to be shipped interstate.
96 S. Ct. at 502. Thus § 922(g) has a regulatory role.
Moreover, the penalty it imposes, including U.S.S.G. § 2K2.1(b)(2), advances this role. Altered firearms, for example sawed-off shotguns, "have few legitimate uses," U.S.S.G. § 2K2.1, commentary, and have most probably been altered to conceal or magnify their deadly potential. Also the trade in guns is monitored for a reason. Registration and verification procedures are imposed largely to combat crime. It is no secret that a chain of custody for a firearm greatly assists in the difficult process of solving crimes. When a firearm is stolen, determining this chain is difficult and when serial numbers are obliterated, it is virtually ...