United States v. Bryant ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4265
ANDRE S. BRYANT,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Marvin J. Garbis, District Judge.
(CR-96-370-MJG)
Submitted: November 12, 1997
Decided: December 3, 1997
Before ERVIN, WILKINS, and LUTTIG, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
James K. Bredar, Federal Public Defender, Denise C. Barrett, Assis-
tant Federal Public Defender, Baltimore, Maryland, for Appellant.
Lynne A. Battaglia, United States Attorney, Bonnie S. Greenberg,
Assistant United States Attorney, Baltimore, Maryland, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Appellant Andre Bryant was convicted pursuant to his guilty plea
of one count of possession of a firearm by a convicted felon in viola-
tion of 18 U.S.C. § 922(g)(1) (1994). On appeal, he challenges
whether the district court erred by setting his base offense level at 22
pursuant to USSG § 2K2.1(a)(3).1 Finding no reversible error, we
affirm.
Bryant, who had a previous felony drug conviction, was appre-
hended and found to be in possession of two firearms: a Mossberg
shotgun with a sawed off (11-1/2-inch) barrel and a .45 caliber Ruger
with an obliterated serial number. Bryant pled guilty at trial, challeng-
ing only the applicability of § 2K2.1(a)(3). Bryant concedes that the
shotgun and his prior conviction qualify under the Guideline. How-
ever, he asserts that the district court erred by not requiring the Gov-
ernment to prove that he knew at the time of the arrest that the
shotgun in his possession was of the type described in § 5845(a).
We review the district court's application of the Guidelines de
novo and find no error. See United States v. Daughtrey, 874 F.2d 213,
217 (4th Cir. 1989). We find persuasive the Fifth Circuit's finding
that the "section is plain on its face and should not, in light of the
apparent intent of the drafters, be read to imply a scienter require-
ment." United States v. Fry, 51 F.3d 543, 546 (5th Cir. 1995). We fur-
ther find that Bryant's reliance on Staples v. United States, 511 U.S.
600 (1994), is misplaced.2 As a threshold matter, the Court in Staples
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1 United States Sentencing Guidelines Manual § 2K2.1(a)(3) (1996).
This section sets a defendant's base offense level at 22 "if the offense
involved a firearm described in 26 U.S.C. § 5845(a) or 18 U.S.C.
§ 921(a)(30), and the defendant had one prior conviction of either a
crime of violence or a controlled substance offense." Firearms described
in § 5845(a) include, inter alia, shotguns having a barrel or barrels less
than eighteen inches long.
2 The court in Staples imposed a mens rea requirement on a statute pro-
hibiting possession of a machine gun because the statute itself was silent
on the issue. The court was concerned that innocent conduct might be
2
expressly warned that its holding was a narrow one. Id. at 619. More-
over, the statute in Staples was a criminal statute, while the provision
at issue in this case is a sentencing enhancement without the same risk
of conviction of an innocent party. Finally, we have previously held
that for felon-in-possession statutes, there is"no need to apply a
scienter requirement to each of the statutory elements." United States
v. Langley, 62 F.3d 602, 607 (4th Cir. 1995), cert. denied, ___ U.S.
___, 64 U.S.L.W. 3485 (U.S. Jan. 16, 1996) (No. 95-7106).
We therefore affirm Bryant's conviction and sentence. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the material before the court and argument
would not aid the decisional process.
AFFIRMED
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punished. For example, the firearm in question in Staples, which was
legal to buy in its unadulterated mode, had been internally modified to
allow it to fire on automatic. The outward appearance of the weapon
remained the same. As a result, an innocent purchaser might possess the
firearm without knowledge of its internal modifications.
3