United States v. Dodson

• Decision Date: 29 May 2013
• Docket Number: No. 12-2205,12-2205
• Parties: UNITED STATES OF AMERICA, Plaintiff-Appellee, v. GEORGE ARTHUR DODSON, III, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. GEORGE ARTHUR DODSON, III, Defendant-Appellant.

No. 12-2205

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Filed: May 29, 2013

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 13a0528n.06

On Appeal from the United States

District Court for the Eastern

District of Michigan

OPINION

Before: BOGGS and COLE, Circuit Judges; and QUIST, District Judge^*

BOGGS, Circuit Judge. Gun enthusiast George Dodson was in the business of selling AR-15 drop-in auto sears, which, in combination with M16 parts, can be used to convert AR-15s to fully automatic firearms. Since 1981, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has considered these auto sears "machineguns" subject to the full scope of regulation under the National Firearms Act. Apparently under the belief that his pre-1981 auto sears were exempt, Dodson continued selling them for over thirty years, until he was caught and charged with possession of a machinegun. Dodson pleaded guilty, but now challenges various guidelines enhancements and the reasonableness of his sentence. In particular, he argues the district court erred in finding no exemption for pre-1981 auto sears and, if not, that it erred in failing to consider his mistake-of-lawand good-faith-reliance defenses. Although Dodson's misconception was not uncommon, it is not supported by the law. In addition, because mistake of law is no defense and Dodson did not establish good-faith reliance, the district court was not required to consider these at sentencing. In any case, the district court implicitly rejected these defenses, finding Dodson likely to violate the gun laws again. Dodson also argues that certain machineguns he owned were not "readily restorable," and thus should not have been considered at sentencing. As the district court's restorability determination rested on credible evidence and the proper legal standard, there was no error. The sentence is affirmed.

I

In 1979, Dodson developed and began selling an AR-15 "safety sear," a readily installable device that when added to an AR-15 replicates the built-in trigger mechanism of a fully automatic weapon. In 1981, the ATF issued Ruling 81-4, which classified these AR-15 drop-in auto sears as "machineguns" under the National Firearms Act, because they are "a combination of parts designed and intended for use in converting a weapon to shoot automatically more than one shot." ATF Rul. 81-4, 1981-3 A.T.F.Q.B. 78; 26 U.S.C. § 5845(b). Dodson, and many others, read the ruling as grandfathering in auto sears manufactured before November 1, 1981, exempting them from the tax and registration requirements of the National Firearms Act.¹ As a result, he manufactured andstockpiled thousands of auto sears before the deadline, selling the inventory through his company, Su-Press-On, Inc., for the next thirty years. The ATF began an investigation after discovering one of Dodson's auto sears in the weapons cache of a Michigan-based organization known as the "Hutaree," alleged to be an "anti-government extremist organization which advocates violence against local, state, and Federal law enforcement." See United States v. Stone, No. 2:10-cr-20123-VAR-PJK (E.D. Mich. Mar. 29, 2010). In 2001, an ATF agent responded to an advertisement in "The Shotgun News" and purchased an auto sear from Dodson for $105, through mail order. The ATF subsequently executed search warrants on Dodson's residence and storage units, finding 40 auto sears, eight other machineguns, and hundreds of legal firearms.

On October 11, 2011, a grand jury returned a 151-count superseding indictment, charging Dodson with various firearms-related crimes, including unlawful possession of machineguns, possession of unregistered machineguns, and dealing in firearms without a license. Dodson moved to dismiss the auto-sear counts, arguing that pre-1981 auto sears were legal to possess and transfer, without registration. The district court denied the motion, holding that the date of manufacture of the auto sears was irrelevant. On the eve of trial, Dodson pleaded guilty to unlawful transfer of a machinegun, in violation of 18 U.S.C. § 922(o). He reserved the right to appeal three disputed sentencing enhancements: a six-level enhancement for possession of 25-99 firearms; a four-levelenhancement for possession of firearms with obliterated serial numbers; and a four-level enhancement for trafficking in machineguns.

Dodson's objection to the number-of-firearms and trafficking enhancements was the same as in his original motion to dismiss: pre-1981 auto sears are legal to possess and sell. The district court again rejected this argument. Dodson also objected to the enhancement for possession of firearms with altered or obliterated serial numbers. Although the auto sears never had serial numbers in the first place, three of the other machineguns found by the ATF had their serial numbers removed. These were World War II-era submachine guns (colloquially known as "grease guns"), which had been sawed in half and distributed as demilitarized scrap by the U.S. Government.² The ATF welded the two halves of one of the grease guns together, and with the addition of sparemachinegun parts and 90 minutes of labor, successfully managed to restore the grease gun to full capability. Finding the guns could be "readily restored," the district court applied the enhancement.

With these enhancements applied, the court determined the Guidelines range to be 97-121 months. The government recommended a downward variance to 60 months. Taking into account Dodson's poor health and advanced age (70 at the time of sentencing), the district court varied even further downward, imposing a sentence of 36 months. Dodson now appeals his sentence, objecting to the sentencing enhancements imposed and the reasonableness of his sentence. Dodson also makes similar objections to pre-trial rulings of the district court, but since Dodson "waive[d] any right to appeal his conviction," we will not reach these objections.

II

A

We review the district court's legal conclusions regarding the Sentencing Guidelines de novo and its findings of fact for clear error. United States v. Catchings, 708 F.3d 710, 720 (6th Cir. 2013). Under the Sentencing Guidelines, if a firearm offense involves 25-99 (unlawful) firearms, the offense level is increased by 6 levels. USSG § 2K2.1(b)(1)(C) & cmt. n.5. Dodson challenges the classification of his auto sears as unlawfully possessed machineguns; this is a legal question of statutory interpretation subject to de novo review. See United States v. Woodard, 337 F. App'x 534, 537 (6th Cir. 2009).

The relevant statute here is the National Firearms Act, which defines "machinegun" as "any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot . . . [including] any part designed and intended solely and exclusively, or combinationof parts designed and intended, for use in converting a weapon into a machinegun . . . ." 26 U.S.C. § 5845(b). Initially, the statute only considered a "combination" of parts to constitute a machinegun; the 1986 Firearm Owners' Protection Act, expanded the definition to include "any" individual part. Pub. L. No. 99-308, § 109, 100 Stat. 449, 460 (1986). The National Firearms Act subjects machineguns and other specified firearms to various tax, registration, and other regulatory requirements, criminalizing violation of its provisions. 26 U.S.C. § 5861. The federal machinegun ban—the provision under which Dodson was convicted—incorporates the same definition of machinegun. 18 U.S.C. § 922(o); 18 U.S.C. § 921(a)(23).

Historically, it was not clear whether AR-15 drop-in auto sears were "machineguns" as defined by 26 U.S.C. § 5845(b). ATF Ruling 81-4, however, clarified that these auto sears were considered "machineguns," subject to all the provisions of the National Firearms Act.³ ATF Rul. 81-4, 1981-3 A.T.F.Q.B. 78. Despite passing references to his auto sears as "safety sears," Dodson does not on appeal contest the propriety of the ATF's determination. Instead, he claims the ATF ruling was meant to apply only on a prospective basis, as shown by its statement that "[w]ith respect to the machine gun classification of the auto sear under the National Firearms Act, pursuant to 26 U.S.C. 7805(b), this ruling will not be applied to auto sears manufactured before November 1, 1981." No court has definitively ruled on the retroactivity of 81-4, but the Seventh Circuit has taken a dim view of Dodson's position. United States v. Cash, 149 F.3d 706, 708 (7th Cir. 1998) ("Perhaps their reading has some basis that we do not now perceive. Firearms dealers would do wellto assume, however, that all current transfers of auto sears must comply with the statutes, no matter when the devices were manufactured.").

To interpret this ruling properly, we must look to the statute under which the retroactivity is authorized. As a general matter, no "regulation relating to the internal revenue laws shall apply to any taxable period ending before [the filing of the regulation]." 26 U.S.C. § 7805(b)(1). Unlike regulations, rulings—being interpretations of existing law—will ordinarily be applied retroactively. Rev. Proc. 89-14, 1989-1 C.B. 814, sec. 7.01(3). The agency, however, may indicate the extent to which the ruling is to be retroactively applied, under the authority of § 7805(b)(8). Ibid. The ATF invoked such authority here, opting to apply Ruling 81-4 prospectively only. Although § 7805 is restricted to matters "relating to the internal revenue laws," the entire National Firearms Act, including its registration requirements, is codified within Title 26. Cf. United States v. Matthews, 438 F.2d 715, 716-17 (5th Cir. 1971) (holding registration requirement as an exercise of the national taxing power). It is plausible, therefore, that § 7805 may limit the retroactive application of all provisions of the National Firearms A...