U.S. v. Rybar

• Decision Date: 30 December 1996
• Docket Number: No. 95-3185,95-3185
• Citation: 103 F.3d 273
• Parties: UNITED STATES of America v. Raymond RYBAR, Jr., Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 273

103 F.3d 273

UNITED STATES of America v. Raymond RYBAR, Jr., Appellant.

No. 95-3185.

United States Court of Appeals Third Circuit.

Argued Sept. 13, 1995.

Decided Dec. 30, 1996.

James H. Jeffries, III (argued), Greensboro, NC, for Appellant.

Bonnie R. Schlueter, Mary Beth Buchanan (argued), Office of United States Attorney, Pittsburgh, PA, for Appellee.

Before: SLOVITER, Chief Judge, and ALITO, Circuit Judge, and RENDELL, District Judge. ^*

OPINION OF THE COURT

SLOVITER, Chief Judge.

Appellant Raymond Rybar, Jr. was convicted following a conditional guilty plea to two counts of violating 18 U.S.C. § 922(o), which makes it "unlawful for any person to transfer or possess a machinegun." On appeal, he argues that the district court erred in rejecting his challenge to that provision as beyond Congress' commerce power and as violating the Second Amendment. Neither challenge is persuasive. Every court of appeals that has considered a challenge to § 922(o) under the Commerce Clause has upheld the constitutionality of the provision. See United States v. Beuckelaere, 91 F.3d 781 (6th Cir.1996); United States v. Kenney, 91 F.3d 884 (7th Cir.1996); United States v. Rambo, 74 F.3d 948 (9th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 72, 136 L.Ed.2d 32 (1996); United States v. Kirk, 70 F.3d 791 (5th Cir.1995) ¹; United States v. Wilks, 58 F.3d 1518 (10th Cir.1995); United States v. Pearson, 8 F.3d 631 (8th Cir.1993), cert. denied, 511 U.S. 1126, 114 S.Ct. 2132, 128 L.Ed.2d 863 (1994). Nor has Rybar presented any authority in support of his Second Amendment argument. We examine each claim in turn.

I. FACTS AND PROCEDURAL HISTORY

On April 4, 1992, Rybar, a federally licensed firearms dealer, attended a gun show in Monroeville, Pennsylvania, and had in his possession a Chinese Type 54, 7.62-millimeter submachine gun, serial number 2052272, which he offered to sell to Thomas Baublitz, who paid him and to whom he transferred possession. The next day, April 5, 1992, Rybar again visited the Monroeville gun show, this time in possession of a U.S. Military M-3, .45 caliber submachine gun, serial number 216831, which he offered to sell to Baublitz, who paid him for it and to whom he transferred possession.

A grand jury indicted Rybar on two counts of unlawful possession of a machine gun in violation of 18 U.S.C. § 922(o)(1) (Counts I and III), and two counts of unlawful transfer of an unregistered firearm in violation of 26 U.S.C. § 5861(e) (Counts II and IV). Rybar moved to dismiss the indictment on the ground that both statutes were unconstitutional. While the motion was pending, the court was informed that Rybar was prepared to plead guilty.

At the hearing on the change of plea, the district court first ruled on the pending motion. The court granted the motion to dismiss Counts II and IV. The court held that insofar as 26 U.S.C. § 5861(e) criminalizes the transfer of an unregistered machine gun, it is unconstitutional because

[a]fter Congress enacted Title 18 of the United States Code Section 922(o), registration of machine guns is no longer possible. Thus defendant has been charged in the indictment with failing to perform an act, registration of two machine guns, that is prohibited by law. This violates notions of fundamental fairness as guaranteed by the Due Process Clause of the Fifth Amendment. Further, this Court finds that Section 5861(e) is no longer a valid taxing statute with respect to machine guns, because the government currently does not register and tax such machine guns.

App. at 16-17. ²

The court denied Rybar's motion to dismiss Counts I and III. The court held that § 922(o) was "a valid exercise of the authority granted to Congress under the Commerce Clause" and was compatible with Second Amendment protections "because this defendant's possession of a machine gun was not reasonably related to the preservation or efficiency of a well-regulated militia." App. at 16.

The court then proceeded to the change of plea portion of the hearing. After the court fully informed Rybar of his rights, Rybar agreed to the facts as summarized by the government, i.e., that he approached Baublitz on both occasions and offered to sell him the machine guns described, and that Baublitz paid him on both occasions and took the machine guns. Rybar corrected the prosecution's statement that he received a total of $1,300 for the machine guns, and stated instead that he received a total of $600 for both machine guns. App. at 31-32 (Hearing Transcript, Jan. 9, 1995).

Rybar had agreed to plead guilty to all four counts of the indictment, i.e., the two counts of possession and the two counts of transfer of an unregistered machine gun, and although the court had just dismissed Counts II and IV, Rybar attested to the entire agreement at the court's request. Id. at 27-29. Rybar then entered a conditional guilty plea to the two remaining counts, preserving for appeal the disputed constitutionality of 18 U.S.C. § 922(o). At the sentencing hearing several months later, the district court sentenced Rybar to eighteen months imprisonment, the minimum sentence under the applicable guideline range, ordered three years of supervised release to follow, and imposed a special assessment of $100.00.

The district court had jurisdiction under 18 U.S.C. § 3231, and we have jurisdiction pursuant to 28 U.S.C. § 1291. Our review of a district court's determination of the constitutionality of a statute is plenary.

Dyszel v. Marks, 6 F.3d 116, 123 (3d Cir.1993).

II. DISCUSSION

In its entirety, § 922(o) reads:

(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.

18 U.S.C. § 922(o) (1994).

"Machinegun," in turn, is defined in 26 U.S.C. § 5845(b), part of the National Firearms Act, as

any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger. The term shall also include the frame or receiver of any such weapon, any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machinegun, and any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person.

See 18 U.S.C. § 921(a)(23) (1994).

The statute prohibits only those instances of possession and transfer of machine guns not lawfully possessed before its enactment date--May 19, 1986; machine guns lawfully possessed before that date are left unaffected. See 18 U.S.C. § 922(o)(2)(B) (1994); Pub.L. No. 99-308 § 110(c), 100 Stat. 449, 461 (1986).

As in the district court, Rybar urges the unconstitutionality of § 922(o) on two grounds. He argues: (1) that the provision outstrips Congress' regulatory authority under the Commerce Clause and (2) that it offends his Second Amendment right "to keep and bear arms."

A. Commerce Clause

Rybar relies primarily on the Supreme Court's recent opinion in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), in support of his Commerce Clause challenge. In Lopez, the Court invalidated the Gun-Free School Zones Act of 1990, which made it a federal offense "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." 18 U.S.C. § 922(q)(2)(A) (1994). A "school zone" was defined as "in, or on the ground of, a ... school" or "within a distance of 1,000 feet." 18 U.S.C. § 921(a)(25) (1994). The decision generated six separate opinions, with five justices supporting the Court's holding that the statute exceeded Congress' authority under the Commerce Clause.

On behalf of the majority, Chief Justice Rehnquist reviewed the Court's Commerce Clause decisions dealing with the extent of Congress' power, stating that § 922(q) "neither regulates a commercial activity nor contains a requirement that the possession be connected in any way to interstate commerce." 514 U.S. at ----, 115 S.Ct. at 1626. In summarizing the earlier cases, he observed that in Perez v. United States, 402 U.S. 146, 150, 91 S.Ct. 1357, 1359-60, 28 L.Ed.2d 686 (1971), the Court had identified three broad categories of activity that Congress may regulate under its commerce power: (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 "that substantially affect interstate commerce." Id., 514 U.S. at ---- - ----, 115 S.Ct. at 1629-30.

He quickly disposed of the first two categories as inapplicable to § 922(q), and stated that if that statute were to be sustained it Justice Kennedy, joined by Justice O'Connor, concurred, outlining what they perceived as the majority's "necessary though limited holding." Id. at ----, 115 S.Ct. at 1634 (Kennedy, J., concurring). From his survey of the Supreme Court's efforts to chart the limits of the Commerce Clause, Justice Kennedy extracted two relevant "lessons" from the past decisions: the inadequacy of using "content-based distinctions," such as that between "direct" and "indirect" effects on commerce, to define those limits, and the importance of maintaining the "practical conception" of the commerce power that had been forged out of the Court's precedents. Id. at ----, 115 S.Ct. at 1637. Most significantly, Justice Kennedy observed that where an enactment under the...