United States v. Dotson, 12–2945.

• Decision Date: 04 April 2013
• Docket Number: No. 12–2945.,12–2945.
• Citation: 712 F.3d 369
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Steven DOTSON, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

712 F.3d 369

UNITED STATES of America, Plaintiff–Appellee,

v.Steven DOTSON, Defendant–Appellant.

No. 12–2945.

United States Court of Appeals, Seventh Circuit.

Argued March 5, 2013.

Decided April 4, 2013.

A. Brant Cook (argued), Nicholas E. Surmacz, Attorney, Office of the United States Attorney, Indianapolis, IN, for Plaintiff–Appellee.

Juval O. Scott (argued), Attorney, Federal Defender Services of Eastern Wisconsin, Incorporated, Milwaukee, WI, Sara J. Varner, Attorney, Indiana Federal Community Defenders, Inc., Indianapolis, IN, for Defendant–Appellant.

Before POSNER, KANNE, and WILLIAMS, Circuit Judges.

POSNER, Circuit Judge.

The defendant, arrested after reportedly having assaulted a woman and pointed a pistol at her, was prosecuted for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He was found guilty in a bench trial and sentenced to 188 months in prison. The only question presented by his appeal is whether the pistol was a firearm, defined (so far as bears on this case) as “any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive,” or “the frame or receiver of any such weapon.” § 921(a)(3)(A), (B). The pistol is a Hi–Point .380 caliber semi-automatic. It was certainly designed to be a gun, and nothing else. But according to the pretrial report of an expert at the Justice Department's Bureau of Alcohol, Tobacco, Firearms and Explosives, at the time when the defendant possessed the gun it was inoperable because of “significant damage, missing/broken parts, and extensive corrosion.” The expert testified similarly at trial—testified that the gun was “damage[d]” and had “corroded, missing and broken components which make it inoperable.”

The government has conceded that because of this damage the gun could not “expel a projectile” at the time the defendant possessed it and could not have been “readily ... converted” to be able to do so, either. To restore the gun to firing condition would require that it be disassembled and cleaned and the corroded and missing parts replaced. All this would take an hour or two for an expert in gun repair. It would take a novice longer—if he could do it at all. The question for us is whether nevertheless the defendant's gun “is designed” to expel a projectile by means of an explosive. The district judge found that it is.

There are two extreme positions regarding the meaning of “is designed” in the statute. One, asserted by the defendant, is that a gun that is seriously inoperable—that would require expertise in gun repair to restore to operating condition— no longer is a “weapon” that “is designed ... to expel a projectile by the action of an explosive.” It would be so “designed” if its “characteristics” had remained the same, but the severe damage that it has sustained has changed those characteristics and therefore the design. The opposite position, which the government doesn't quite espouse but doesn't disclaim either, is once a gun always a gun: anything originally designed as a gun remains a gun no matter how dilapidated it becomes, how difficult to restore to operating condition—or even impossible.

Neither extreme is plausible. A gun is still a gun—a weapon designed to expel a projectile by means of explosive action—even though it is in bad condition and can be restored to working condition only by a gunsmith. See United States v. Rivera, 415 F.3d 284, 286 (2d Cir.2005); United States v. Yannott, 42 F.3d 999, 1006 (6th Cir.1994); cf. United States v. TRW Rifle 7.62X51mm Caliber, One Model 14 Serial 593006, 447 F.3d 686, 692 (9th Cir.2006). The defendant confuses “design” with “object” when he says in his brief that “the design [of his gun] has been so altered that the original purpose for which it was intended no longer exists.” The object has been altered, but not the design. The change in the gun resulting from the damageto it was, so far as appears, unintentional; it was not the consequence of a redesign. The brief is wrong when it says that because “the gun was prevented from performing as it was originally designed to do,” its design has been altered. An airplane is designed to fly; a defect in manufacture or maintenance that prevents it from flying does not alter its design.

The defendant might but does not argue that the gun was “redesigned” to be a weapon only of “intimidation,” which is how he used it in the alleged assault. But there is no evidence of a conscious design to make the gun inoperable so that it could be used only to intimidate. Notice that the statutory definition doesn't require that the felon possessing a gun have ammunition or access to ammunition, though such absence renders the gun inoperable except as...