U.S. v. Beuckelaere

• Citation: 91 F.3d 781
• Decision Date: 06 September 1996
• Docket Number: No. 95-1267,95-1267
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gary BEUCKELAERE, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 781

91 F.3d 781

UNITED STATES of America, Plaintiff-Appellee, v. Gary BEUCKELAERE, Defendant-Appellant.

No. 95-1267.

United States Court of Appeals Sixth Circuit.

Argued April 15, 1996.

Decided Aug. 2, 1996.

Rehearing and Suggestion for Rehearing En Banc Denied Sept.

6, 1996. ^*

Janice Kittel Mann, U.S. Attorney (argued and briefed), Office of the U.S. Attorney for the Western District of Michigan, Grand Rapids, MI, for plaintiff-appellee.

Lawrence J. Phelan (argued and briefed), Grand Rapids, MI, for defendant-appellant.

Before: CONTIE, SUHRHEINRICH, and COLE, Circuit Judges.

CONTIE, J., delivered the opinion of the court, in which COLE, J., joined. SUHRHEINRICH, J. (pp. 787-88), delivered a separate dissenting opinion.

CONTIE, Circuit Judge.

Defendant-appellant, Gary Beuckelaere, appeals the judgment entered after his guilty plea to possession of a machinegun in violation of 18 U.S.C. § 922(o), which he alleges is unconstitutional. For the following reasons, we affirm the decision of the district court.

I.

On September 15, 1994, a single-count indictment was filed in the United States District Court for the Western District of Michigan, charging defendant with possession of a machinegun on February 22, 1994, in violation of 18 U.S.C. § 922(o)(1). Defendant pleaded guilty on February 22, 1994, and was sentenced to a term of imprisonment of 41 months and a three-year term of supervised release.

Defendant collected assault weapons and had a total of 13 weapons at his residence. Defendant's brother, Thomas Beuckelaere, contacted the Michigan State Police and informed the police that defendant was in possession of two firearms that were fully automatic machineguns. A search warrant was executed at defendant's home on February 22, 1994. Four weapons were seized in the search, and firearms technology experts determined that two M/11 nine millimeter semi-automatic pistols and a combination of parts found at defendant's home during the search constituted machineguns. Defendant admitted that he purchased the guns and parts from a gun dealer in Kentucky. Defendant also purchased literature from the gun dealer containing instructions on how to convert a Cobray M/11 semi-automatic pistol into a machinegun.

II.

Defendant's sole argument on appeal is that 18 U.S.C. § 922(o) exceeds Congress' power to legislate under the Commerce Clause under the standard established by the Supreme Court in United States v. Lopez, --- U.S. ----, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). The statute at issue, § 922(o), states:

(1) Except as provided in paragraph (2), it shall be unlawful for any person to transfer or possess a machinegun.

(2) This subsection does not apply with respect to--

(A) a transfer to or by, or possession by or under the authority of, the United States or any department or agency thereof or a State, or a department, agency, or political subdivision thereof; or

(B) any lawful transfer or lawful possession of a machinegun that was lawfully possessed before the date this subsection takes effect.

The effective date of this provision was May 19, 1986. Defendant argues this statute is similar to one the Supreme Court struck down in Lopez, in which the Court found that a portion of the Gun-Free School Zone Act of 1990, 18 U.S.C. § 922(q), exceeded the constitutional power granted to Congress to regulate commerce. The statute at issue in Lopez made it unlawful "for any individual knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone."

In reviewing the constitutionality of § 922(q) in Lopez, the Supreme Court delineated three categories of activity that Congress can regulate or protect under the Commerce Clause: (1) "the use of the channels of interstate commerce"; (2) "the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities"; and (3) "those activities having a substantial relation to interstate commerce." --- U.S. at ---- - ----, 115 S.Ct. at 1629-30. The Supreme Court found in Lopez that § 922(q) does not fall within any of these categories, because the statute does not regulate the channels of interstate commerce nor does it protect an instrumentality of interstate commerce. The Court then evaluated § 922(q) under the third category to determine whether it regulated an activity that substantially affected interstate commerce. The Court held that § 922(q) "by its terms has nothing to do with 'commerce' or any sort of economic enterprise, however broadly one might define those terms." Id. at ----, 115 S.Ct. at 1630-31. "[P]ossession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce." Id. at ----, 115 S.Ct. at 1634. Therefore, the Court in Lopez found § 922(q) unconstitutional under the Commerce Clause.

As the court in United States v. Bell, 70 F.3d 495, 497 (7th Cir.1995) pointed out, for criminal defendants, "[i]t appears that United States v. Lopez has raised many false hopes. Defendants have used it as a basis for challenges to various statutes. Almost invariably those challenges fail." See United States v. Carolina, 61 F.3d 917 (10th Cir.1995) (challenge to 18 U.S.C. § 2119 (car-jacking) and § 924(c)(1) (carrying firearm during a crime of violence)); United States v. Oliver, 60 F.3d 547 (9th Cir.1995) (car-jacking); United States v. Sherlin, 67 F.3d 1208 (6th Cir.1995) (arson); Cheffer v. Reno, 55 F.3d 1517 (11th Cir.1995) (18 U.S.C. § 248) (Freedom of Access to Clinic Entrances Act); United States v. Dodge, 61 F.3d 142 (2d Cir.) (possession of an unregistered destructive device and conspiracy to possess an unregistered firearm), cert. denied, --- U.S. ----, 116 S.Ct. 428, 133 L.Ed.2d 343 (1995); United States v. Bolton, 68 F.3d 396 (10th Cir.1995) (18 U.S.C. § 1951--Hobbs Act), cert. denied, --- U.S. ----, 116 S.Ct. 966, 133 L.Ed.2d 887 (1996); United States v. Collins, 61 F.3d 1379 (9th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 543, 133 L.Ed.2d 446 (1995); United States v. Hanna, 55 F.3d 1456 (9th Cir.1995), and United States v. Walker, 59 F.3d 1196 (11th Cir.) (possession of a firearm by a former felon), cert. denied, --- U.S. ----, 116 S.Ct. 547, 133 L.Ed.2d 450 (1995).

In addition, challenges to the specific statute at issue in the present case, § 922(o), have failed. United States v. Rambo, 74 F.3d 948 (9th Cir.1996); United States v. Wilks, 58 F.3d 1518 (10th Cir.1995). For example, the Ninth Circuit in Rambo reasoned as follows:

Although Lopez is instructive, it does not control our analysis of section 922(o). We agree with the Fifth and Tenth Circuits that section 922(o) represents a permissible exercise of the authority granted to Congress under the Commerce Clause.

Section 922(o) prohibits the possession or transfer of machineguns only if they were not lawfully possessed before May 19, 1986. In other words, there can be "no unlawful possession under section 922(o) without an unlawful transfer." Regulating this category of possession, therefore, regulates commerce....

Unlike section 922(q), section 922(o) comes within the first category enumerated by the Supreme Court in Lopez. Section 922(o) is "a regulation of the use of the channels of interstate commerce" because it is "an attempt to prohibit the interstate transportation of a commodity through the channels of commerce." Lopez, --- U.S. at ----, 115 S.Ct. at 1630. By regulating the market in machineguns, including regulating intrastate machinegun possession, Congress has effectively regulated the interstate trafficking in machineguns. "[T]here is a rational basis to conclude that federal regulation of intrastate incidents of transfer and possession is essential to effective control of the interstate incidents of such traffic."

The prohibition of possession under section 922(o) differs greatly from the prohibition in section 922(q). Section 922(q) did not regulate the market in weapons, and instead regulated merely the possession of a weapon in a specific geographic area. Section 922(o), on the other hand, prohibits the possession of all machineguns illegally transferred. Section 922(o) regulates the use of the channels of interstate commerce.

74 F.3d at 951-52 (citations deleted) (emphasis added).

We agree that § 922(o) is a proper exercise of the authority granted to Congress under the Commerce Clause because the statute falls within the first category articulated in Lopez--a regulation of the use of the channels of interstate commerce. The Supreme Court struck down § 922(q) in Lopez because it sought to regulate an activity which by its nature was purely intrastate and could not substantially affect commerce even where incidents were aggregated together. --- U.S. at ----, 115 S.Ct. at 1631. In contrast, § 922(o) regulates the "extensive, intricate, and definitely national market for machineguns" by prohibiting the transfer and possession of machineguns acquired after May 19, 1986. United States v. Hunter, 843 F.Supp. 235, 249 (E.D.Mich.1994). As the Court in Rambo pointed out, illegal possession of a machinegun cannot occur without an illegal transfer, which given the national marketplace for machineguns, involves the channels of interstate commerce.

The Tenth Circuit in Wilks reviewed the legislative history of firearms statutes and found that § 922(o), prohibiting the possession and transfer of post-1986 machineguns, represents regulation of an activity which Congress rationally determined was bound up with interstate attributes. 58 F.3d at 1520-22. When Congress originally enacted § 922 under the Omnibus Crime Control and Safe Streets Act of 1968 ("Omnibus Act"), it regulated the interstate flow of firearms under the commerce power based upon explicit findings that "only through adequate Federal control over interstate and foreign commerce in...