United States v. Warin , 163 F. App'x 390 ( 2006 )


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  •                 NOT RECOMMENDED FOR FULL TEXT PUBLICATION
    File Name: 06a0071n.06
    Filed: January 26, 2006
    No. 04-3431
    UNITED STATES COURT OF APPEALS
    FOR THE SIXTH CIRCUIT
    UNITED STATES OF AMERICA,                             )
    )
    Plaintiff-Appellee,                    )       ON APPEAL FROM THE
    )       UNITED STATES DISTRICT
    )       COURT FOR THE NORTHERN
    v.                                                    )       DISTRICT OF OHIO
    )
    FRANCIS J. WARIN,                                     )
    )
    Defendant-Appellant.                   )
    BEFORE: SILER and GIBBONS, Circuit Judges, and LAWSON, District Judge*
    DAVID M. LAWSON, District Judge.                In 1976, Francis J. Warin challenged his
    convictions of various federal firearms offenses on the grounds that the Second Amendment protects
    an individual’s right to possess arms, and Congress’ efforts to regulate and register firearms
    possession were unconstitutional. This court rejected those arguments; it held that “the Second
    Amendment guarantees a collective rather than an individual right,” and concluded that Warin
    “ha[d] no private right to keep and bear arms under the Second Amendment which would bar his
    prosecution and conviction” for violating federal firearms statutes. United States v. Warin, 
    530 F.2d 103
    , 106-07 (6th Cir. 1976). Warin returns to this court with new firearms convictions but advances
    *
    The Honorable David M. Lawson, United States District Judge for the Eastern District
    of Michigan, sitting by designation.
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    the same argument. As the court did twenty-nine years ago, we likewise today reject that argument
    and affirm Warin’s federal firearms convictions. However, we vacate his sentence and remand for
    resentencing under the now-advisory sentencing guidelines. See United States v. Booker, 
    543 U.S. 220
    , 
    125 S. Ct. 738
    (2005).
    I.
    The facts of this case strongly suggest that Warin invited this prosecution by conduct that
    fairly can be characterized as provocative. On May 19, 2003, the United States Attorney’s Office
    in Toledo, Ohio received a package addressed to Assistant United States Attorney, Lawrence Kiroff.
    After scanning the package, security found that it contained a homemade .22 caliber gun and
    silencer. The package was sent by the defendant, Francis Warin, along with a letter. Officials ran
    a background check and determined that Warin had a past criminal history involving firearms.
    Agents from the Bureau of Alcohol, Tobacco, and Firearms initiated an investigation.
    Kiroff testified at trial that prior to receiving the package, he had handled a civil forfeiture
    case involving some twenty-two guns that had been confiscated from Warin’s residence during a
    search in 1999. Apparently, the search was conducted after Warin threatened to bring a bomb to an
    FBI office. Kiroff stated that sometime after he concluded the case, Warin arrived at Kiroff’s office
    requesting that he be arrested for possession of firearms. Kiroff denied the request and told Warin
    “to please go home and forget about this matter,” J.A. at 97, but Warin was quite adamant. Warin
    then began to write Kiroff regularly and ultimately sent Kiroff the homemade gun and silencer.
    On May 22, 2003, agents arrested Warin and searched his home pursuant to warrants issued
    by a federal magistrate judge. The search revealed six firearms, some forty thousand rounds of
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    ammunition, and an explosive device. Warin provided agents with a statement in which he admitted
    to mailing the firearm and silencer. Warin also told agents that he had been placed on probation in
    1976 after he was convicted of carrying a machine gun into the federal courthouse in Toledo, Ohio,
    a felony offense.
    On June 4, 2003, a federal grand jury returned a five-count indictment against the defendant.
    Count one charged Warin with possessing an unregistered .22 caliber gun in violation of 26 U.S.C
    §§ 5841, 5861(d), and 5871. Count two alleged that Warin possessed a silencer in connection with
    the firearm in violation of the same provisions. Count three charged Warin with mailing the firearm
    and silencer and having those items delivered to Lawrence J. Kiroff, an assistant United States
    attorney, which items could be concealed on the person in violation of 18 U.S.C. § 1715. Court four
    alleged that Warin previously had been convicted of a felony and therefore possessed a firearm in
    violation of 18 U.S.C. § 922(g)(1). Count five charged Warin with illegally possessing an additional
    firearm as a felon.
    A bench trial was held on October 8, 2003. When the proofs concluded, Warin filed a
    written motion to dismiss pursuant to Federal Rule of Criminal Procedure 29, to which the
    government responded. On December 17, 2003, the district court denied Warin’s motion and found
    him guilty of each charge in the indictment. A presentence report was prepared, and on February
    17, 2004 Warin filed objections in which he asserted that his base offense level should be reduced
    for acceptance of responsibility, the evidence did not support enhancements for the number of
    weapons and possession of a destructive device, and the court should depart downward because of
    the defendant’s age and health. On March 22, 2004, the district court sentenced Warin to thirty-
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    three months in prison on counts one, two, four, and five and twenty-four months on count three to
    run concurrently with the other counts. The district court further imposed a $2,000 fine, a $500
    special assessment fee, and three years of supervised release. Warin filed a timely notice of appeal.
    He argues that the district court erred in denying his motion to dismiss because the Second
    Amendment, which he believes confers individual rights, is a complete defense to his crimes; and
    the district court improperly decided facts at the sentencing hearing that enhanced the defendant’s
    Sentencing Guideline score.
    II.
    This court reviews de novo the constitutional rulings of the district court. United States v.
    Napier, 
    233 F.3d 394
    , 397 (6th Cir. 2000). We review the sentencing issue for plain error because
    Warin did not present these arguments in the district court. Fed. R. Crim. P. 52(b); United States
    v. Johnson, 
    403 F.3d 813
    , 815 (6th Cir. 2005).
    A.
    There is one point of the constitutional argument that the defendant and the government
    share: they both believe that the Second Amendment must be construed to confer individual – not
    collective – rights, a viewpoint espoused by the Fifth Circuit alone. See United States v. Emerson,
    
    270 F.3d 203
    (5th Cir. 2001). However, this court has had several opportunities to reassess its
    position since United States v. Warin was decided in 1976 and has continued to hold to its view that
    the Second Amendment confers only collective rights. See United States v. Bournes, 
    339 F.3d 396
    ,
    397 (6th Cir. 2003); United States v. Napier, 
    233 F.3d 394
    , 402 (6th Cir. 2000); United States v.
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    Baker, 
    197 F.3d 211
    , 216 (1999); United States v. Ables, 
    167 F.3d 1021
    , 1027 (6th Cir. 1999). We
    subscribe to that interpretation as well.
    The Second Amendment to the United States Constitution provides: “A well regulated
    Militia, being necessary to the security of a free State, the right of the people to keep and bear arms,
    shall not be infringed.” This circuit has repeatedly held that the right to bear arms is a collective one,
    and accordingly “there can be no serious claim to any express constitutional right of an individual
    to possess a firearm.” 
    Bournes, 339 F.3d at 397
    (quoting 
    Warin, 530 F.2d at 106
    ). It is quite difficult
    to hold otherwise without reading the first two clauses out of the text of the amendment.
    Despite this clear precedent, Warin asserts the Second Amendment as a complete defense
    to all charges in the indictment. He, like the defendant in Bournes, asks the court to reconsider its
    position in light of United States v. Verdugo-Urquidez, 
    494 U.S. 259
    (1990), and find that the
    Second Amendment confers individual rights. In that case, the Court considered the term, “the
    people,” found in the preamble, and the First, Second, Fourth, Ninth and Tenth Amendments to the
    Constitution, and stated that it “refers to a class of people who are part of a national community.”
    
    Id. at 282.
    Warin contends that this obiter dictum requires this court to re-evaluate its interpretation
    of the Second Amendment. He claims the district court erred when it found that the Second
    Amendment afforded Warin no complete defense, denied his motion filed under Federal Rule of
    Criminal Procedure 29, and convicted him on each of the five counts.
    However, in Bournes, this court stated its position with respect to changing its interpretation
    of the Second Amendment:
    Recognizing this authority and our well-entrenched rule that a panel of this court
    cannot overrule the published opinion of another panel unless an intervening
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    Supreme Court decision mandates modification of the prior opinion, see United
    States v. Ables, 
    167 F.3d 1021
    , 1027 (6th Cir.1999), Bournes urges us to reconsider
    our holding in Warin in light of United States v. Verdugo-Urquidez, 
    494 U.S. 259
           (1990). But whatever the value of dicta in that opinion referring to the Court’s
    understanding of the Second Amendment’s ‘textual exegesis,’ 
    id. at 265,
    we have
    reaffirmed Warin on at least two occasions in the interim. . . . Without a subsequent
    en banc ruling to the contrary, we are therefore bound to apply Warin in this case.
    
    Bournes, 339 F.3d at 397
    -98. Warin has not alleged here the presence of any of the factors that
    would permit this panel to overrule its previous decisions.
    Moreover, extended discussion of the individual versus the collective rights model would
    serve no further purpose in this case because the Second Amendment would afford Warin no relief
    under either theory. Warin concedes that under this circuit’s collective rights model the Second
    Amendment provides him no protection for his criminal conduct. Similarly, even under the
    individual rights model articulated in Emerson, the firearms statutes under which Warin was
    convicted would be upheld as they were in that case as “limited, narrowly tailored specific
    exceptions or restrictions for particular cases that are reasonable and not inconsistent with the right
    of Americans generally to individually keep and bear their private arms as historically understood
    in this country. . . . [I]t is clear that felons, infants, and those of unsound mind may be prohibited
    from possessing firearms.” 
    Emerson, 270 F.3d at 261
    . Warin makes no argument that the statutes
    he violated are somehow unreasonable.
    Warin does, however, present a due process claim. He argues that the National Firearms Act,
    26 U.S.C. § 5861(d), which requires him to register his firearms, is an improper application of the
    government’s taxation powers. Like others before him, he relies on the Tenth Circuit’s decision in
    United States v. Dalton, 
    960 F.2d 121
    (10th Cir. 1992). Dalton, an attorney, argued to the court that
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    it was legally impossible for him to comply with the registration requirement of section 5861(d)
    because the statute mandates denial of all registration applications for firearms that are illegal to
    possess, and the machine gun Dalton received as a fee from a client was a prohibited weapon under
    the Firearm Owners’ Protection Act. The Dalton court agreed. However, the Dalton impossibility
    defense was rejected in United States v. Jones, 
    976 F.2d 176
    (4th Cir. 1992), where the court
    observed that a person can comply with the statutes simply “by refusing to deal in newly-made
    machine guns.” 
    Id. at 183.
    This court declined to adopt Dalton’s reasoning in United States v. Mise, 
    240 F.3d 527
    , 530
    (6th Cir. 2001), although the facts of that case were readily distinguished from Dalton’s facts where
    there was no showing that the defendant could not register the pipe bomb that was the object of the
    prosecution in that case. But the precise argument was squarely rejected in United States v.
    Bournes, where we stated:
    We take this occasion, involving a case with facts squarely on point with those in
    Dalton, to reject the reasoning of that opinion and, instead, follow our sister circuits
    in adopting the more compelling reasoning of Jones. We hold that compliance with
    the relevant provisions of both the National Firearms Act and the Firearms Owners’
    Protection Act is easily achieved: Bournes could have complied simply by electing
    not to possess the machine guns at issue in this case. Furthermore, the Constitution
    does not forbid making the same conduct illegal under two statutes, and the
    government is permitted to prosecute under either one.
    
    Bournes, 339 F.3d at 399
    (internal quotes and citation omitted).
    In this case, Warin does not contend that he could not register the homemade guns for which
    he was prosecuted and convicted. His argument, therefore, has less appeal than Bournes’ and is
    closer to the one made in Mise. In all events, there is no due process violation here that invalidates
    Warin’s convictions.
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    B.
    Warin argues on appeal that the district court erred when it failed to consider certain
    sentencing factors at the trial phase of the case but instead made factual findings on those matters
    at the sentencing hearing in violation of the rules handed down in Blakely v. Washington, 
    542 U.S. 296
    (2004), and Apprendi v. New Jersey, 
    530 U.S. 466
    (2000).
    Using the November 1, 2003 Sentencing Guidelines, the district court determined Warin’s
    base offense level to be 20 because he committed the offense while being a prohibited person. See
    U.S.S.G. § 2K2.1(a)(4)(B)(I). Four levels were added pursuant to U.S.S.G. § 2K2.1(b)(1)(B)
    because Warin’s offense involved the possession of at least eight firearms during the commission
    of these offenses. Two additional points were added because Warin possessed a destructive device
    during the offense. See U.S.S.G. § 2K2.1(b)(3). With a criminal history category of I, the
    Guidelines imposed a range of 63 to 78 months. However, the district court granted Warin a two-
    level downward departure for acceptance of responsibility and further departed four levels for a
    combination of circumstances, including Warin’s age and infirmity. At this level, Warin’s guideline
    range was between 33 to 41 months imprisonment. The court sentenced Warin to thirty-three
    months imprisonment on counts one, two, four, and five, and twenty-four months on count three to
    run concurrently. The court imposed a $2,000 fine, two years of supervised release, and a special
    assessment fee of $500.
    The precise argument based on a violation of Warin’s Fifth and Sixth Amendment rights is
    raised for the first time on appeal. However, Warin’s attorney filed written objections to the
    presentence report in which he stated that “it is important to note that only three firearms, plus a
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    homemade silencer, were objects of the indictment. The other firearms referred to in Paragraph 13
    were not the subject of prosecution.” J.A. at 31. The objections also stated that “[i]t is undisputed
    that the hand grenade was not included as a count in the indictment.” J.A. at 32. He contends that
    these objections are sufficient to preserve his constitutional sentencing issues for appeal.
    That argument may indeed be preserved, see United States v. Strayhorn, 
    250 F.3d 462
    , 467
    (6th Cir. 2001) (holding that defendant preserved his Apprendi challenge to his sentence where he
    objected to the drug quantity determination at his plea and sentencing hearings and filed a written
    objection to the calculation of his base offense level in his presentence report, although he did not
    utter the words “due process” at either of these hearings), overruled on other grounds by United
    States v. Leachman, 
    309 F.3d 377
    (6th Cir. 2002), but we need not decide that point because we find
    that the sentence must be vacated even under a plain error standard of review. Under the latter
    standard, the defendant must demonstrate (1) an error; (2) that was plain, meaning obvious or clear;
    (3) affected Warin’s substantial rights; and (4) seriously affected the fairness, integrity or public
    reputation of the proceedings. United States v. Oliver, 
    397 F.3d 369
    , 378 (6th Cir. 2005).
    This case was briefed and argued before the Supreme Court decided Booker, in which the
    Court determined that it must “excise” 18 U.S.C. § 3553(b)(1) to the extent that the section
    “require[d] sentencing courts to impose a sentence within the applicable Guidelines range (in the
    absence of circumstances that justify a departure).” Booker, 543 U.S. at __, 125 S. Ct. at 764.
    Warin satisfies the first prong of the plain error test because the district court sentenced him based
    on a higher quantity of guns than the amount found by the district court beyond a reasonable doubt.
    Moreover, this court held in United States v. Barnett, 
    398 F.3d 516
    (6th Cir. 2005), that any pre-
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    Booker sentencing determination constitutes plain error because the Guidelines then were
    mandatory. The second prong is also met under the rule in Booker. See 
    Oliver, 397 F.3d at 379
    .
    Third, the error plainly impacted Warin’s substantial rights because it “affected the outcome of the
    district court proceedings.” United States v. Cotton, 
    535 U.S. 625
    , 632 (2002). Finally the error
    affected the fairness, integrity, and reputation of the proceeding because the court imposed a more
    severe sentence than that supported by the verdict. See 
    Oliver, 397 F.3d at 380
    . The weight of
    authority in this circuit requires that we vacate the sentence and remand “to accord the district court
    an opportunity to take another look at the sentence” in light of the now-advisory nature of the
    Guidelines. United States v. McCraven, 
    401 F.3d 693
    , 700 (6th Cir. 2005).
    The sentence in this case was at the low end of the Guidelines range, which may have been
    compelled by the former mandatory nature of the Sentencing Guidelines. See United States v.
    Hamm, 
    400 F.3d 336
    , 340 (6th Cir. 2005) (reasoning that “[b]ased upon the district court’s
    imposition of a sentence at the low end of the range and its apparent sympathy for Hamm, we
    believe that the court might have sentenced Hamm to fewer than 33 months in prison if it had felt
    that it were free to do so”). Our decision to vacate the sentence, however, is not based on a finding
    that the sentence is unreasonable or that a different disposition is required. Rather, we believe
    “[t]he better course . . . is to vacate [Warin’s] sentence and remand for resentencing, thus affording
    the district court the opportunity to re-sentence him in the first instance. ‘We would be usurping the
    discretionary power granted to the district courts by Booker if we were to assume that the district
    court would have given [the defendant] the same sentence post-Booker.’” United States v. Barnett,
    
    398 F.3d 516
    , 530 (6th Cir. 2005) (quoting 
    Oliver, 397 F.3d at 381
    n. 3).
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    III.
    For the reasons stated, we AFFIRM the defendant’s conviction, VACATE his sentence, and
    REMAND for resentencing in light of United States v. Booker.