United States v. Burwell, No. 06-3070

Decision Date03 August 2012
Docket NumberNo. 06-3070
CourtU.S. Court of Appeals — District of Columbia Circuit

Appeal from the United States District Court

for the District of Columbia

(No. 04cr00355-05)

On petition For Rehearing En Banc

Robert S. Becker, appointed by the court, argued the cause and filed the briefs for appellant.

A.J. Kramer, Federal Public Defender, and Rosanna M. Taormina, Assistant Federal Public Defender, were on the brief of the Federal Public Defender as amicus curiae in support of appellant.

Paul F. Enzinna and Barry J. Pollack were on the brief of amicus curiae National Association of Criminal Defense Lawyers, Inc. in support of appellant.

Stratton C. Strand, Assistant U.S. Attorney, argued the cause for appellee. With him on the briefs were Ronald C. Machen Jr., U.S. Attorney, and Roy W. McLeese III, Daniel P. Butler, and Stephanie C. Brenowitz, Assistant U.S. Attorneys.


Opinion for the Court filed by Circuit Judge BROWN.

Concurring opinion filed by Chief Judge SENTELLE.

Concurring opinion filed by Circuit Judge HENDERSON.

Dissenting opinion filed by Circuit Judge ROGERS.

Dissenting opinion filed by Circuit Judge KAVANAUGH, with whom Circuit Judge TATEL joins.

BROWN, Circuit Judge:

Appellant Bryan Burwell was part of a crew of bank robbers that engaged in a violent crime spree across the D.C. Metro area. The crew employed decidedly old-school tactics, including subduing bystanders by brandishing AK-47s, pistol whipping a victim, and spraying a pursuing police car with bullets. After a lengthy jury trial and an appeal before a panel of this Court, only a single legal question remains: whether 18 U.S.C. § 924(c)(1)(B)(ii), which imposes a mandatory thirty-year sentence for any person who carries a machinegun whilecommitting a crime of violence, requires the government to prove that the defendant knew the weapon he was carrying was capable of firing automatically. To resolve this question, we reexamine one of our longstanding precedents, United States v. Harris, 959 F.2d 246, 257-59 (D.C. Cir. 1992), in light of intervening decisions of the Supreme Court.


This appeal, which focuses on a narrow question of law, requires only an abbreviated version of the essential underlying facts. Between 2003 and 2004, a gang of robbers committed six armed bank heists; Burwell, who joined the crew in the middle of the crime spree, participated in two. Before Burwell joined up, Noureddine Chtaini, the nominal leader, along with Miguel Morrow and Omar Holmes, bought four fully automatic AK-47s.1 The crew carried these weapons in all their subsequent bank robberies, and on one occasion, "sprayed" bullets at a pursuing police car. Following this particular robbery, Burwell said he wanted to start robbing banks with the crew. He carried an AK-47 in both of the robberies in which he participated, though there is no evidence he fired any of the weapons.

A grand jury issued an indictment charging Burwell and his co-defendants with, inter alia, RICO conspiracy andarmed bank robbery conspiracy. They also charged Burwell with one count of armed bank robbery and one count of using or carrying a firearm during a violent crime. A jury returned verdicts as to all defendants on July 15, 2005, convicting each of RICO conspiracy and conspiracy to commit armed bank robbery. In addition, it convicted Burwell of armed robbery and of using or carrying a machinegun in relation to a violent crime. The district court sentenced Burwell to concurrent prison terms of 135 months each for RICO conspiracy and armed bank robbery, 60 months for conspiracy to commit armed bank robbery, and a consecutive term of 360 months for using or carrying a machinegun during the robbery.

On appeal, Burwell argued the government presented insufficient evidence to support his conviction under 18 U.S.C. § 924(c)(1)(B)(ii) because the government failed to show he knew the AK-47 he carried was capable of firing automatically. All four weapons could function in both semiautomatic and fully automatic modes through the use of a selector switch—a lever on the side of the weapon that slides up and down to allow the user to choose between safe, semiautomatic, and fully automatic modes. But at trial, both parties' firearms experts agreed that the weapons contained no clear markings indicating that they could be put into automatic firing mode. The defense's expert, William Welch, testified that "[t]here's some letters here [near the selector switch] that I cannot identify because they're probably written in a foreign language, but they're only letters, not words." Welch determined that the AK-47 could fire in automatic mode by noticing that the selector switch had three positions, which he "was kind of looking for ... anyway," and by disassembling the gun.

Section 924(c)(1)(A) provides for a mandatory consecutive sentence of at least five years for any person whouses or carries a firearm "during and in relation to" a crime of violence or drug trafficking crime, or for any person who possesses a firearm "in furtherance of" such crime. The mandatory sentence skyrockets to thirty years, however, if the firearm involved was a machinegun. 18 U.S.C. § 924(c)(1)(B)(ii). A machinegun is defined as "a gun capable of firing automatically, that is, of firing several bullets with one pull on the trigger." Harris, 959 F.2d at 257. The court upheld the jury verdict and sentence, finding that this Court's decision in Harris dictated affirmance.

In Harris, the Court concluded Congress "inten[ded] to apply strict liability" to the machinegun provision of § 924(c). 959 F.2d at 258. The Court began its analysis by recognizing the general presumption in favor of a mens rea requirement in criminal cases, but reasoned that § 924(c)(1) already requires a defendant to have "intentionally" used a firearm in committing a predicate crime, and to have done so with "knowledge that the objects used to facilitate the crime are 'firearms.'" Id. at 258-59. Thus, the statute does require "[d]eliberate culpable conduct" as to "the essential elements of the crime . . . before the issue of sentence enhancement for use of a machine gun arises." Id. at 259. The structure of the statute, the Court found, supported the inference that Congress intended no additional mens rea requirement to apply to the machinegun element.

Burwell, aided by amici curiae National Association of Criminal Defense Lawyers ("NACDL") and the Federal Public Defender ("FPD"), sought rehearing en banc, claiming the Supreme Court's decision in United States v. O'Brien, 130 S. Ct. 2169 (2010)—which held that § 924(c)(1)(B)(ii) is an element of the offense, rather than a sentencing factor— implicitly overruled Harris. Burwell also claims contrary decisions of other circuits support abandonment of Harris.Harris's interpretation of § 924(c) is, he contends, fundamentally flawed as a matter of law. We disagree on all counts, and conclude the high burden imposed on any party who urges this Court to depart from the principle of stare decisis has not been satisfied.


By claiming § 924(c)(1)(B)(ii) contains an additional, implicit mens rea requirement, Burwell asks us to set aside a circuit precedent that has governed our interpretation for twenty years.

"[T]he doctrine of stare decisis is of fundamental importance to the rule of law." Welch v. Texas Dep't of Highways & Pub. Transp., 483 U.S. 468, 494 (1987). "[A]ny departure from the doctrine . . . demands special justification." Arizona v. Rumsey, 467 U.S. 203, 212 (1984). The burden borne by a party urging the disavowal of an established precedent is greater "where the Court is asked to overrule a point of statutory construction . . . for here, unlike in the context of constitutional interpretation, . . . Congress remains free to alter what we have done." Patterson v. McLean Credit Union, 491 U.S. 164, 172-73 (1989).

Overturning a statutory precedent is justified under a very narrow range of circumstances, such as cases in which an "intervening development of the law, through either the growth of judicial doctrine or further action taken by Congress," necessitates a shift in the Court's position. Id. at 173. Precedents may also be abandoned where an intervening development "ha[s] removed or weakened the conceptual underpinnings from the prior decision, or where the later lawhas rendered the decision irreconcilable with competing legal doctrines or policies." Id. The Court has also overruled prior cases where the precedent "may be a positive detriment to coherence and consistency in the law, either because of inherent confusion created by an unworkable decision, or because the decision poses a direct obstacle to the realization of important objectives embodied in other laws." Id.

A court of appeals sitting en banc may also reexamine its own interpretation of a statute "if it finds that other circuits have persuasively argued a contrary construction." Critical Mass Energy Project v. NRC, 975 F.2d 871, 876 (D.C. Cir. 1992) (en banc). Or an en banc court may set aside its own precedent "if, on reexamination of an earlier decision, it decides that the panel's holding on an important question of law was fundamentally flawed." Id.

a. Effect of Subsequent Supreme CourtDecisions

Burwell and NACDL rely on the Supreme Court's recent decision in United States v. O'Brien, which held that possession of a machinegun "[was] an element to be proved to the jury beyond a reasonable doubt," not a "sentencing factor" to be proved to the judge by a preponderance of the evidence at sentencing. 130 S. Ct. at 1272. According to NACDL, the Harris Court justified departing from the traditional presumption in favor of mens rea by finding the machinegun provision is not an "essential element of the...

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