U.S. v. Corso

• Decision Date: 29 March 1994
• Docket Number: D,No. 910,910
• Citation: 20 F.3d 521
• Parties: UNITED STATES of America, Appellee, v. George V. CORSO, Defendant-Appellant. ocket 93-1354.
• Court: U.S. Court of Appeals — Second Circuit

Page 521

20 F.3d 521

UNITED STATES of America, Appellee, v. George V. CORSO, Defendant-Appellant.

No. 910, Docket 93-1354.

United States Court of Appeals, Second Circuit.

Argued Jan. 10, 1994.

Decided March 29, 1994.

Darrell B. Fields, Legal Aid Soc., Federal Defender Services Unit, New York City, for defendant-appellant.

Paul D. Silver, Asst. U.S. Atty., N.D.N.Y., Albany, NY (Gary L. Sharpe, U.S. Atty., N.D.N.Y., of counsel), for appellee.

Before: MINER and MAHONEY, Circuit Judges, and RESTANI, Court of International Trade Judge. ^*

RESTANI, Judge:

Defendant-appellant George V. Corso ("defendant") appeals from a sentence entered by the United States District Court for the Northern District of New York, holding that the offense of conviction involved five to seven firearms and required an enhancement by two levels pursuant to U.S.S.G. Sec. 2K2.1(b)(1) (1991). For the reasons set forth below, we remand for further findings on the number of firearms involved.

FACTS AND BACKGROUND

On May 14, 1992, Bureau of Alcohol, Tobacco and Firearms ("ATF") Special Agent Michael Lawrence ("Agent Lawrence"), upon information obtained from a firearms trace, went to defendant's residence/business premises to inquire about a "Streetsweeper" shotgun that defendant had allegedly sold to one Paul Sheedy. At the premises, and with the consent of defendant, Agent Lawrence observed the basement level, which had been converted into a gun-smith work area of some kind. While there, Agent Lawrence observed a drill press, three suspected machine gun receiver tubes, one object resembling a firearm silencer, three more completed silencers and one partially manufactured silencer. ¹ Agent Lawrence seized all firearm silencers. Subsequent investigations indicated that defendant had no registered firearms or firearm silencers on record with the ATF nor had ATF received an application for registration from him.

Agent Lawrence sought and obtained a warrant to search the premises further, and executed the warrant on May 19, 1992. At this time Agent Lawrence realized that three receiver tubes, which he had discovered during the earlier search of the premises on May 14, 1992, had been removed from the work area. Subsequently, defendant and Agent Lawrence drove to West Sand Lake, where three Sten MK II machine gun receivers ² were retrieved from behind a house. Agent Lawrence seized the receivers and defendant subsequently voluntarily surrendered himself for arrest.

An examination conducted by the Firearms Technology Branch of ATF revealed that three of the five apparent firearm silencers Pursuant to a plea agreement signed on February 10, 1993, defendant pleaded guilty to one count of engaging in the business of a manufacturer of firearms without having registered as required by and in violation of 26 U.S.C. Sec. 5861(a) (1988). The plea agreement reserved the parties' respective rights to address the court on the issue of enhancement as set out in U.S.S.G. Sec. 2K2.1(b)(1)(B). This section mandates a two-level enhancement if the offense involved five to seven firearms. The presentence report stated that defendant admitted making one silencer for the purpose of test-firing weapons and also making the two machine gun receivers, which were going to be displayed on a wall in his home.

functioned effectively as such and compared favorably with other known firearm silencers. Two objects, although resembling silencers, did not incorporate any internal silencer components and were thus non-functional. As for the apparent receivers, one was a section of hollow metal tubing and a template capable of being constructed into a machine gun receiver but with no evidence of machine or hand work on it. Two others were newly manufactured Sten machine gun receiver tubes of the proper size and shape for the construction of a Sten type machine gun. The report concluded that three of the silencers, by design, construction and function, were "firearm silencers" as defined in 18 U.S.C. Sec. 921(a)(24) (1988) and "firearms" as defined in 26 U.S.C. Sec. 5845(a)(7) (1988). It also concluded that the two Sten machine gun receivers were each a "machinegun" as that term is defined in 26 U.S.C. Sec. 5845(b) (1988).

The presentence report recommended a base offense level of 18, a two-point enhancement for special skill, and a two-point enhancement for an offense involving five to seven firearms. It then subtracted three points for defendant's acceptance of responsibility, resulting in a total offense level of 19. The total offense level of 19, combined with a criminal history category of I, resulted in a sentencing range of 30-37 months. Without the two points for five to seven firearms defendant's offense level would have been 17 instead of 19, with a sentencing range of 24-30 months. A one-point enhancement for three to four firearms would justify a sentence of 27-33 months and an offense level of 18. The judge accepted the presentence report but departed downward due to the mitigating circumstance of defendant's poor health. See 18 U.S.C. Sec. 3553(b) (1988); U.S.S.G. Secs. 5H1.4, 5K2.0 (1991). The court ultimately imposed a sentence of eighteen months imprisonment, one year of supervised release and a special assessment of $50. ³

Defendant objects to the two-level enhancement for the number of firearms on two main grounds. First, he contends that because he believed that two of the silencers were "fake," he lacked the requisite scienter. This argument was based in part on an advertisement for "fake" silencers by the company that supposedly sold the devices to defendant.

Second, defendant argues that the two Sten machine gun receivers should not be used in calculating the number of firearms, because he was misled by an assurance from ATF that the receivers were legal. The defendant relied on a letter dated December 11, 1986, by the Chief of the Firearms Technology Branch of ATF, to CATCo., the arms company that sold the receivers to defendant. This letter stated in pertinent part as follows:

The receiver tube and template, in and of themselves, are not regulated by the Gun Control Act of 1968. However, if this tube is possessed in conjunction with other STEN submachinegun components, the combination could be considered a combination of parts from which a machinegun can be assembled, and subject to the provisions of the National Firearms Act (NFA).

With respect to your question concerning the marking of a machinegun by an individual, Section 922(o), Chapter 44, Title 18, U.S.C., makes it unlawful for any person to possess a machinegun which was not registered prior to the effective date of this section. Therefore, an ATF Form 1, Application to Make and Register a Firearm * * * * * *

cannot be approved if the application is to make a machinegun.

With respect to your question concerning component parts for machineguns, internal parts for machineguns, in and of themselves, are generally not subject to the provisions of the NFA. It is recommended that machinegun component parts only be sold to individuals who lawfuly [sic] possess weapons for which the parts are designed. If machinegun component parts are possessed in conjunction with drilling fixtures, templates, and/or instructions intended for use in converting a weapon into a machinegun, those combinations could be subject to the provisions of the NFA.

If you plan to offer any of the above tubes, drilling fixutres [sic], templates, or parts for sale, you should notify customers that machineguns cannot be lawfully made from these components.

Defendant argues that this letter represented to CATCo. and thus to him that he could lawfully acquire the machine gun receivers. He also relies on the advertisement for the sale of Sten MK II receivers issued by CATCo., in which it was stated that the receiver kits are "(BATF approved) NO FFL REQUIRED!" The advertisement further stated that the kits come with a "[c]opy of BATF approval letter." Based on these arguments, defendant now appeals.

DISCUSSION

Factual findings of the district court will be reviewed under the clearly erroneous standard, whereas issues that turn primarily on the legal interpretation of a Guideline term will be reviewed de novo. United States v. Stroud, 893 F.2d 504, 507 (2nd Cir.1990). Whether or not scienter is required in the National Firearms Act and the Sentencing Guidelines is a question of law, reviewed de novo. On the other hand, whether there is sufficient evidence on the record concerning defendant's knowledge of the "dangerous nature" of the silencers and whether the defense of entrapment by estoppel avails defendant are questions of fact, reviewed under the clearly erroneous standard.

A. Requirement of Scienter in the Sentencing Guidelines

Defendant is not challenging his conviction for firearms violations. He is only attacking his sentence, and specifically the use of two Sten machine gun receivers and three firearm silencers in enhancing his offense level under the Sentencing Guidelines. Defendant contends that the Sentencing Guidelines incorporate the scienter requirement of a provision of the National Firearms Act, prohibiting possession of an unregistered firearm, under which he was not convicted. See 26 U.S.C. Sec. 5861(d) (1988). In order to address defendant's contention, we must inquire whether the Sentencing Guidelines require the same level of scienter as the statute, and, if so, what type of scienter is specified in the statute.

The United States Sentencing Guidelines effective at the time of the offense provide as follows:

(b) Specific Offense Characteristics

(1) If the offense involved three or more firearms, increase as follows:

U.S.S.G. Sec. 2K2.1(b)(1)(A), (B) (1991). Although the text of this provision does not indicate the requisite scienter for its application, we are not without some guideposts. Application note 9 provides as follows:

[f]or purposes of calculating the number of firearms under subsection (b)(...