United States v. Alkazahg, 202000087

CourtUnited States Court of Criminal Appeals, Navy-Marine Corps
Writing for the CourtSTEPHENS, SENIOR JUDGE.
Docket Number202000087
PartiesUNITED STATES Appellee v. Ali ALKAZAHG Private (E-2), U.S. Marine Corps Appellant
Decision Date07 September 2021


Ali ALKAZAHG Private (E-2), U.S. Marine Corps Appellant

No. 202000087

United States Court of Criminal Appeals, Navy-Marine Corps

September 7, 2021

Argued: 22 July 2021

Military Judges: Wilbur Lee (arraignment) Ann Minami (trial)

Appeal from the United States Navy-Marine Corps Trial Judiciary

Sentence adjudged 14 January 2020 by a general court-martial convened at Marine Corps Base Hawaii, Kaneohe Bay, Hawaii, consisting of a military judge alone. Sentence entered in the Entry of Judgment: 36 months' confinement, total forfeiture of pay, reduction to E-1, and a bad-conduct discharge.

Before MONAHAN, STEPHENS, and DEERWESTER Appellate Military Judges

For Appellant: Major Mary Claire Finnen, USMC (argued)

For Appellee: Major Kerry Friedewald, USMC (argued) Major Clayton Wiggins, USMC (on brief) Captain Nicole A. Rimal, USMC (on brief)


Appellant was convicted, in accordance with his pleas, of one specification of fraudulent enlistment, two specifications of making a false official statement, and two specifications of possessing machine guns, in violation of Articles 83, 107, and 134 of the Uniform Code of Military Justice [UCMJ].[1]

Appellant raises two assignments of error. He argues first, the Government failed to state an offense when it alleged he possessed a machine gun, [2] because the "bump stock" he possessed did not meet the definition of "machinegun" under 26 U.S.C. § 5845(b), and second, that the military judge erred in failing to inquire into Appellant's understanding of the sentencing terms in his plea agreement. We find no prejudicial error in the military judge not inquiring into Appellant's understanding of the plea agreement.[3] However, we find the Government failed to state an offense when it charged Appellant with one specification of possessing a machine gun. We set aside and dismiss this specification and the segmented portion of the corresponding sentence. We reassess the unitary and segmented portions of the remaining sentence and conduct an analysis for sentence appropriateness. Finding all of the remaining segmented sentences inappropriate, we affirm the remaining findings and affirm the unitary portion of the sentence, but only affirm the remaining segmented portions of the sentence to the extent they are appropriate. We take action in our decretal paragraph.

I. Background

A. The Bureau of Alcohol, Tobacco, Firearms, and Explosives Outlaws Bump Stocks

In October 2017, the nation was shocked, saddened, and outraged when a man opened fire on a large crowd attending a concert from his hotel room window in Las Vegas. The shooter killed approximately 60 people, wounded many, many more, and added fuel to the ongoing political debate on gun control. When it was revealed the shooter used a device called a "bump stock" to fire his semi-automatic rifles in a manner which nearly reproduced rates of fire for fully-automatic weapons, there were calls to outlaw these devices.

A bump stock allows a shooter to more easily conduct what is known as a "bump fire" on a semi-automatic rifle. In a semi-automatic rifle, one pull of the trigger initiates a trigger function that will only fire a single round of ammunition. In a fully automatic rifle, or machine gun, one pull of the trigger initiates a trigger function that continuously fires ammunition as long as the trigger is being pulled. A bump fire, aided by a bump stock, will closely resemble the firing rate of an automatic rifle. It does this by using the natural recoil of the weapon to engage the trigger. Instead of a shooter moving his finger to pull the trigger to fire a round, the stock of the weapon moves back and forth, or "bumps" the trigger against the shooter's trigger finger maintained in a pull position while the shooter also presses forward on the barrel or upper receiver with his non-firing hand.

Within days of the Las Vegas mass shooting, the President commented that the Executive Branch would be "looking into"[4] a ban on bump stocks. About a month after the shooting, a bill was introduced in Congress called the "Closing the Bump-Stock Loophole Act"[5] which would have effectively outlawed bump stocks by treating them in the same manner as a "machine gun"-or fully automatic weapons-which had, generally speaking, already been illegal since 1986 and heavily regulated for 70 years. This bill was never acted on by either the House of Representatives or the Senate, nor was any legislation ever passed outlawing bump stocks.

Instead, the President directed the Bureau of Alcohol, Tobacco, Firearms, and Explosives [ATF] to issue a new interpretation of a rule-that contradicted the ATF's previous interpretation-governing legislation from the 1930s. This Executive-Branch change in statutory interpretation aimed to outlaw bump stocks prospectively, without a change in existing statutes.

In 1934, Congress passed a bill and the President signed into law the National Firearms Act [NFA] to address automatic weapons (the weapon of choice for Chicago gangsters during Prohibition). The NFA imposed a significant tax on the importation and transfer of machine guns, which it defined as, ". . . any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically or semiautomatically, more than one shot, without manual reloading, by a single function of the trigger."[6] Congress amended this statutory language when it passed the 1968 Gun Control Act [GCA], which removed the word "semiautomatically" from the definition of machine gun and addressed parts that could be used to assemble a machine gun.

In 1986, Congress passed the Firearms Owners' Protection Act [FOPA], banning possession of machine guns not owned before 1986. FOPA also banned any parts, to include frames and receivers, which were part of a machine gun or were designed for converting a weapon into a machine gun.

The current statute at issue is 26 U.S.C. § 5845(b), which defines what a machine gun is. Due to having a bump stock, Appellant was charged under the statute which states that a machine gun is "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."[7]

In 2002, William Akins invented a bump stock device, known as the "Akins Accelerator." He requested the ATF evaluate it to determine if it would be classified as a machine gun. One key difference from more modern bump stocks-including the one at issue in this case-was that the Akins Accelerator had an internal spring that created forward pressure on the weapon, rather than a shooter using manual pressure with the non-firing hand. Initially, the ATF did not consider the device to be a machine gun, because it defined the 1934 NFA's term "single function of the trigger" as a "single movement of the trigger."[8] The Akins Accelerator relied on, and helped facilitate, rapid single movements of the trigger to produce the increased firing rate. In 2006, the ATF reversed course and decided the device "result[ed] in a weapon that shoots more than one shot, without manual reloading, by a single pull of the trigger[9] and was a machine gun as defined by the NFA and GCA.

Akins filed suit in federal district court and lost on summary judgment. In an unpublished decision, the U.S. Court of Appeals for the Eleventh Circuit affirmed, holding (1) the phrase, "single function of the trigger," means a "single pull of the trigger, "[10] (2) the ATF's interpretation was consistent with "the statute and its legislative history, "[11] and (3) that with "a single application of the trigger . . . the Accelerator uses its internal spring and the force of the recoil to fire continuously . . . ."[12] The court also held that using the word "function" instead of "pull" to "reference the action taken by a gunman to commence the firing process is not so confusing that a man of ordinary common intelligence would have to guess at its meaning."[13]

The classification of modern bump stocks, [14] which do not have internal springs and therefore require the shooter to keep constant forward pressure on the upper receiver while firing, has also been reconsidered by the ATF. Ten times between 2008 and 2017, the ATF classified bump stocks to be a firearm part and not a machine gun.[15] But in March 2018, in response to the President's direction in the wake of the Las Vegas shooting, the ATF published a notice of proposed rulemaking proposing to clarify the interpretations of "single function of the trigger" and "automatically."[16] The ATF's proposed clarification resulted in bump stocks being classified as machine guns under 26 U.S.C. § 5845(b). In December 2018, the ATF's "Final Rule" concluded that bump stocks were machine guns and that owners must either destroy them or surrender them to the ATF by 26 March 2019.[17]

B. Appellant Went on Leave to Nebraska

Appellant was stationed in Hawaii. On 22 May 2019 [about two months after the safe harbor to surrender bump stocks had expired] he was headed to the airport to go on leave to visit his foster parents in Nebraska. While a fellow Marine was driving him to the airport, Appellant's supervisory gunnery sergeant called to inform him he did not check-out properly. Appellant lied to the gunnery sergeant and told him his flight had been cancelled and re-scheduled for an earlier time. After getting off the phone, Appellant made comments to the other Marine that he would shoot up the shop if he got "more negative paperwork" because of the improper check-out.[18] The other Marine subsequently reported these comments to his unit. Appellant's unit responded by listing him in an unauthorized leave status and reported his threats of violence, which were communicated throughout the Department of Defense and to civilian law enforcement in the Defense Biometric...

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