Whether The Ten-Year Minimum Sentence In 18 U.S.C. § 924(C)(1)(B)(I) Applies To Semiautomatic Assault Weapons

• Decision Date: 24 November 2009
• Docket Number: 09-17
• Citation: 33 Op. O.L.C. 1
• Court: Opinions of the Office of Legal Counsel of the Department of Justice
• Parties: WHETHER THE TEN-YEAR MINIMUM SENTENCE IN 18 U.S.C. § 924(c)(1)(B)(i) APPLIES TO SEMIAUTOMATIC ASSAULT WEAPONS

33 Op. O.L.C. 1

WHETHER THE TEN-YEAR MINIMUM SENTENCE IN 18 U.S.C. § 924(c)(1)(B)(i) APPLIES TO SEMIAUTOMATIC ASSAULT WEAPONS

No. 09-17

United States Department of Justice

November 24, 2009

JEANNIE RHEE Deputy Assistant Attorney General

WHETHER THE TEN-YEAR MINIMUM SENTENCE IN 18 U.S.C. § 924(c)(1)(B)(i) APPLIES TO SEMIAUTOMATIC ASSAULT WEAPONS

Semiautomatic assault weapons are no longer among the firearms to which the ten-year minimum sentence in section 924(c) (I) (B)(i) of title 18 applies.

MEMORANDUM OPINION FOR THE ASSISTANT ATTORNEY GENERAL CRIMINAL DIVISION

You have asked whether possession of a semiautomatic assault weapon in furtherance of a crime of violence or drug trafficking crime is conduct that remains subject to a mandatory ten-year minimum sentence. Having carefully considered the views of the Criminal Division and the Bureau of Alcohol, Tobacco, and Firearms (ATF), we conclude that semiautomatic assault weapons are no longer among the firearms to which the ten-year minimum sentence in section 924(c)(1)(B)(i) of title 18 applies. The 1994 amendment that increased the penalties for use of such firearms in section 924(c)(1) is subject to a sunset provision, and thus was repealed as of 2004. Accordingly, the possession of a semiautomatic assault weapon in furtherance of, or the use during and in relation to, a crime of violence or drug trafficking crime is subject to the general five-year mandatory minimum sentence provided for in section 924(c)(1)(A), with increased penalties for the brandishment or discharge of such weapon.^[1]

I.

Section 924(c)(1) of title 18 makes it a federal offense to use or carry a firearm during and in relation to certain other offenses or to possess a firearm in furtherance of those other offenses. The question you have asked us to consider depends upon the relationship between two amendments that Congress made to section 924(c)(1), the first in 1994 and the second in 1998.

Prior to 1994, section 924(c)(1) provided as follows:

"Whoever, during and in relation to any crime of violence or drug trafficking crime . . . uses or carries a firearm, shall, in addition to the punishment provided for such crime . . ., be sentenced to imprisonment for five years, and if the firearm is a short-barreled rifle short-barreled shotgun to imprisonment for ten years, and if the firearm is a machinegun, or a destructive device, or is equipped with a firearm silencer or firearm muffler, to imprisonment for thirty years."

18 U.S.C. § 924(c)(1) (Supp. II 1990) (emphasis added). [ 2]

In 1994, Congress enacted the Public Safety and Recreational Firearms Use Protection Act ("PSRFUPA" or "Act") as subtitle A of title XI of an omnibus crime bill. See Pub. L. No. 103-322, tit. XI, §§ 110101-06, 108 Stat. 1996-2000(1994). The centerpiece of the Act was the so-called "Assault Weapons Ban, " which did not affect the existing section 924(c)(1), but instead established a new offense, making it "unlawful for a person to manufacture, transfer, or possess a semiautomatic assault weapon, " except in compliance with certain specified exceptions. Id. § 110102(a). The PSRFUPA further provided a detailed description of the weapons to which the Act applied, see Id. § 110102(b) (identifying both nineteen specific models of firearms and listing certain defining characteristics of "semiautomatic assault weapons"), and imposed certain labeling requirements for such weapons, see Id. § 110102(d) ("[t]he serial number of any semiautomatic assault weapon manufactured after the date of the enactment of this statute shall clearly show the date on which the weapon was manufactured"), to facilitate enforcement of the Act's prohibitions.

For present purposes, however, it is a distinct provision of the PSRFUPA that is our focus. Section 110102(c)(2) of the PSRFUPA amended the existing 18 U.S.C. § 924(c)(1) to add semiautomatic assault weapons to the list of firearms subject to a ten-year penalty for use during and in relation to any crime of violence or drug trafficking crime. It provided that "[s]ection 924(c)(1) ... is amended in the first sentence by inserting ', or semiautomatic assault weapon ' after 'short-barreled shotgun, '." As amended, section 924(c)(1) read, in pertinent part:

"Whoever, during and in relation to any crime of violence or drug trafficking crime . . ., uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime, be sentenced to imprisonment for five years, and if the firearm is a short-barreled rifle, short-barreled shotgun or semiautomatic assault weapon, to imprisonment for ten years, and if the firearm is a machinegun, or a destructive device, or is equipped with a firearm silencer or firearm muffler, to imprisonment for thirty years."

18 U.S.C. § 924(c)(1) (1994) (emphasis added).

Significantly, however, Congress included in the PSRFUPA a sunset provision that limited the temporal effect of the Act. The sunset provision, section 110105(2), stated that "[t]his subtitle and the amendments made by this subtitle ... are repealed effective as of the date that is 10 years after [PSRFUPA's effective] date." Thus, because section 110102(c)(2) clearly was an "amendment made by this subtitle"—namely, an amendment to 18 U.S.C. § 924(c)(1)—it would have been "repealed" and ceased to have legal force and effect as of 2004 unless Congress enacted intervening legislation that insulated section 110102(c)(2) from the operation of the sunset provision.

In 1998, Congress did enact intervening legislation that amended section 924(c)(1). Congress enacted the legislation in response to Bailey v. United States, 516 U.S. 137 (1995), a Supreme Court decision that interpreted section 924(c)(1) and was issued one year after PSRFUPA's enactment. In Bailey, the Supreme Court considered what it meant to "use" a firearm for purposes of section 924(c)(1). It held that the Government had to prove that a defendant "actively employed the firearm during and in relation to the predicate crime" in order to "sustain a conviction under the 'use' prong" of the statute. Id. at 150. [ 3]

In response to Bailey, multiple bills were introduced in both houses of Congress to make clear that the "use" of a firearm for purposes of section 924(c)(1) would not require the active employment of the firearm in the commission of a predicate crime. Significantly, many of these bills proposed further amendments to section 924(c)(1) that went beyond merely responding to the Court's interpretation of the term "use." This legislative activity ultimately resulted in the passage of a 1998 amendment to section 924(c)(1) titled "An Act to Throttle Criminal Use of Guns." The 1998 amendment provided that "[s]ection 924(c) of title 18, United States Code, is amended ... by striking '(c)' and all that follows through the end of paragraph (1) and inserting the following:

"(c)(1)(A) Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law, any person who, during and in relation to any crime of violence or drug trafficking crime . . . uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime—

(i) be sentenced to a term of imprisonment of not less than 5 years;

(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and

(iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.

(B) If the firearm possessed by a person convicted of a violation of this subsection—

(i) is a short-barreled rifle, short-barreled shotgun, or semiautomatic assault weapon, the person shall be sentenced to a term of imprisonment of not less than 10 years; or

(ii) is a machinegun or a destructive device, or is equipped with a firearm silencer or firearm muffler, the person shall be sentenced to a term of imprisonment of not less than 30 years."

Pub. L. No. 105-386, § 1(a)(1), 112 Stat. 3469 (1998).

The 1998 amendment therefore split section 924(c)(1) into two new subsections— 18 U.S.C. § 924(c)(1)(A) and 924(c)(1)(B)—and made three major changes to the section's operation. First, new subsection 924(c)(1)(A) made clear that the offense created by section 924(c)(1) applies not only to any individual who "uses or carries a firearm, " but also to one who, "in furtherance of any such crime, possesses a firearm." Second, the remaining portion of subsection (c)(1)(A) imposed new minimum terms of imprisonment for specified types of firearms use. In lieu of the pre-1998 fixed five-year sentence, the amendment made the new baseline sentence for any use a minimum of five years, and it created new sentences of a [ 4] minimum of seven and ten years, respectively, for the "brandishment" and "discharge" of a firearm during and in relation to a predicate crime.

The third change was set forth in the new subsection (c)(1)(B) and addressed the sentences imposed for possession of certain types of firearms. The list enumerating these firearms did not change from the pre-1998 version of section 924(c)(1), as already amended by the PSRFUPA. As was the case before 1998 that list included short-barreled rifles, short-barreled shotguns, semiautomatic assault weapons, machineguns, destructive devices, and firearms equipped with a silencer or muffler. And, as was the case before 1998, semiautomatic assault weapons were treated identically to short-barreled rifles and short-barreled shotguns, just as the 1994 PSRFUPA had prescribed. The only change was that, whereas offenses involving semiautomatic weapons, short-barreled rifles, and short-barreled...