U.S. v. Wright

• Decision Date: 24 July 1997
• Docket Number: No. 95-8397,95-8397
• Citation: 117 F.3d 1265
• Parties: 11 Fla. L. Weekly Fed. C 252 UNITED STATES of America, Plaintiff-Appellee, v. Donald W. WRIGHT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1265

117 F.3d 1265

11 Fla. L. Weekly Fed. C 252

UNITED STATES of America, Plaintiff-Appellee, v. Donald W. WRIGHT, Defendant-Appellant.

No. 95-8397.

United States Court of Appeals,

Eleventh Circuit.

July 24, 1997.

Gregory Stuart Smith, Federal Defender Program, Atlanta, GA, for Defendant-Appellant.

Kent Alexander, U.S. Atty., Thomas A. Devlin, Jr., Asst. U.S. Atty., Atlanta, GA, for Plaintiff-Appelleee.

Appeal from the United States District Court for the Northern District of Georgia.

Before COX, Circuit Judge, and KRAVITCH and CLARK, Senior Circuit Judges.

KRAVITCH, Senior Circuit Judge:

The Second Amendment to the United States Constitution provides: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." In this case, we must decide whether this amendment grants constitutional protection to an individual whose possession or use of machineguns and pipe bombs is not reasonably related to an organized state militia. We hold that it does not. We also hold that Congress had ample authority under the Commerce Clause to prohibit the possession or transfer of machineguns pursuant to 18 U.S.C. § 922(o). Accordingly, we AFFIRM appellant's convictions. Because we conclude that the district court erred in applying the Sentencing Guidelines, we VACATE appellant's sentence and REMAND for resentencing.

I. Background

In June 1994, the Bureau of Alcohol Tobacco and Firearms received information that Donald Wright was looking for someone to reassemble a .50 caliber machinegun. Subsequently, two undercover local law enforcement agents were introduced to Wright as individuals capable of reassembling this gun. At this meeting, Wright produced the disassembled machinegun and told the agents that, once it was reassembled, he planned to shoot the gun, grease it, and then bury it. Agents arrested Wright in possession of the disassembled machinegun as he drove away from the meeting. Upon arrest, Wright consented to a search of his residence during which agents discovered a .223 caliber Olympic Arms model Car-AR automatic assault machinegun and three pipe bombs in a shed outside his home. Agents also found several other unregistered assault weapons, ammunition, and assorted documents and videotapes describing threats to United States sovereignty posed by the "New World Order."

Wright was charged with one count of possessing machineguns in violation of 18 U.S.C. § 922(o) and with one count of possessing unregistered destructive devices in violation of 26 U.S.C. § 5861(d). He filed a motion to dismiss the indictment on the grounds that the charging statutes violated, among other constitutional provisions, the Commerce Clause and the Second Amendment. ¹ In support of his motion, Wright submitted the seized documents and videotapes to demonstrate that his weapons possession was motivated by what he perceived to be the danger of the "New World Order." He also offered the testimony of a firearms expert to establish that the machineguns and pipe bombs were the type of weapons used by contemporary militias. The district court, adopting the magistrate judge's report and recommendation, denied his motion.

Wright then pleaded guilty to both counts of the indictment pursuant to a negotiated plea agreement in which he reserved the right to appeal the denial of his motion to dismiss the indictment on constitutional grounds. As part of the plea bargain, the government agreed to recommend that Wright be credited with a downward adjustment for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1. At his sentencing hearing, Wright admitted that he possessed the machineguns and pipe bombs referred to in the indictment, and explained that he had planned to bury the weapons for use in case of an invasion. Wright further testified that he belonged to a twenty-member "military" group that met once a week to exchange information and to conduct training drills, but declined to identify other members of the group or the location of the group's training exercises. ² He again claimed that his membership in this group and his weapons possession were motivated by perceived threats to United States sovereignty. Based on this testimony, the district court rejected Wright's request for, and the government's recommendation of, an offense-level reduction for acceptance of responsibility, and sentenced him to forty-one months' imprisonment.

On appeal, Wright asserts several challenges to his convictions and sentence. He claims that 18 U.S.C. § 922(o) exceeds Congress's power under the Commerce Clause and contends that § 922(o) and 26 U.S.C. § 5861(d) violate his Second and Ninth Amendment rights. Finally, Wright argues that the district court improperly penalized him for making these constitutional challenges by denying him a downward adjustment for acceptance of responsibility.

II. Discussion

A. Commerce Clause

Section 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.

18 U.S.C. § 922(o) (1994). ³ Section 922(o) thus criminalizes, with limited exceptions, the mere possession of machineguns that were acquired after May 19, 1986 regardless of whether these guns traveled in or otherwise affected interstate commerce.

Relying on United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), Wright contends that section 922(o)'s blanket ban of the possession of machineguns violates the Commerce Clause, U.S. Const., art. I, § 8, cl. 3. ⁴ In Lopez, the Supreme Court ruled that 18 U.S.C. § 922(q), which made it illegal 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," violated the Commerce Clause. The Court concluded that § 922(q) could not "be sustained under our cases upholding regulations of activities that arise out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate commerce." 514 U.S. at 561, 115 S.Ct. at 1631.

Wright bases his challenge to § 922(o) on its similarities to the section struck down in Lopez. Wright notes that: (1) neither section has a jurisdictional element requiring a connection between the gun and interstate commerce; (2) the enactment of both sections was unsupported by legislative findings connecting them to interstate commerce; and (3) both sections criminalize the mere possession of guns. Wright further claims that, like section 922(q), section 922(o) is "a criminal statute that by its terms has nothing to do with 'commerce' or any sort of economic enterprise, however broadly one might define those terms." See Lopez, 514 U.S. at 559-62, 115 S.Ct. at 1630-31. On these grounds, Wright argues that this case is indistinguishable from Lopez and that, because there is no evidence that the machineguns he possessed traveled in interstate commerce, the count of the indictment charging him with a violation of § 922(o) should be dismissed. We review his Commerce Clause challenge de novo. United States v. Olin Corp., 107 F.3d 1506, 1508 (11th Cir.1997).

Wright's reliance on the first two similarities between sections 922(o) and 922(q) is misplaced. We recently rejected the argument that Lopez requires Congress to place a jurisdictional element in every statute enacted pursuant to the Commerce Clause or to make formal legislative findings connecting the regulated activity to interstate commerce. Olin, 107 F.3d at 1510. In Olin, we concluded that "although Congress did not include in CERCLA either legislative findings or a jurisdictional element, the statute remains valid as applied in this case because it regulates a class of activities that substantially affects interstate commerce." Id. ⁵

We are thus left to determine whether Congress's decision to prohibit in § 922(o) the mere possession of machineguns is constitutionally permissible. ⁶ Wright argues that the Court's decision in Lopez to strike down § 922(q)'s prohibition of the mere possession of firearms in school zones requires the same result in this case. We disagree. Because section 922(o) enacts a total ban on the possession and transfer of machineguns, while section 922(q) regulated only the possession of firearms in a limited, discrete geographic sphere, we conclude that this case is easily distinguishable from Lopez. We further conclude that Congress had sufficient authority under the Commerce Clause to enact § 922(o).

It is important to note that Lopez did not alter our approach to determining whether a particular statute falls within the scope of Congress's Commerce Clause authority. Olin, 107 F.3d at 1509; see also Lopez, 514 U.S. at 567-69, 115 S.Ct. at 1634 (refusing to adopt "additional expansion" of congressional authority under the Commerce Clause). Rather than undermining its prior Commerce Clause precedents, the Lopez Court merely established some "outer limits" to Congress's Commerce Clause authority. See Lopez, 514 U.S. at 555-57, 115 S.Ct. at 1628. When ruling on a Commerce Clause challenge, we must determine, as always, "whether a rational basis existed for concluding that a regulated activity sufficiently affected interstate commerce." Id. at 557, 115 S.Ct. at 1629; see also United States v. Kenney, 91 F.3d 884, 886 (7th Cir.1996) ("Our task is merely to determine whether Congress could have had a rational basis to support the exercise of its commerce power; and, further, that the regulatory means chosen were 'reasonably adapted to...