United States v. Alkazahg ( 2021 )

This opinion is subject to administrative correction before final disposition.
Before
MONAHAN, STEPHENS, and DEERWESTER
Appellate Military Judges
_________________________
UNITED STATES
Appellee
v.
Ali ALKAZAHG
Private (E-2), U.S. Marine Corps
Appellant
No. 202000087
Argued: 22 July 2021—Decided: 7 September 2021
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judges:
Wilbur Lee (arraignment)
Ann Minami (trial)
Sentence adjudged 14 January 2020 by a general court-martial con-
vened at Marine Corps Base Hawaii, Kaneohe Bay, Hawaii, consisting
of a military judge alone. Sentence entered in the Entry of Judgment:
36 months’ confinement, total forfeiture of pay, reduction to E-1, and a
bad-conduct discharge.
For Appellant:
Major Mary Claire Finnen, USMC (argued)
For Appellee:
Major Kerry Friedewald, USMC (argued)
Major Clayton Wiggins, USMC (on brief)
Captain Nicole A. Rimal, USMC (on brief)
_________________________
United States v. Alkazahg, NMCCA No. 202000087
Opinion of the Court
PUBLISHED OPINION OF THE COURT
_________________________
STEPHENS, Senior Judge:
Appellant was convicted, in accordance with his pleas, of one specification
of fraudulent enlistment, two specifications of making a false official state-
ment, and two specifications of possessing machine guns, in violation of
Articles 83, 107, and 134 of the Uniform Code of Military Justice [UCMJ]. 1
Appellant raises two assignments of error. He argues first, the Govern-
ment failed to state an offense when it alleged he possessed a machine gun, 2
because the “bump stock” he possessed did not meet the definition of “ma-
chinegun” under 26 U.S.C. § 5845(b), and second, that the military judge
erred in failing to inquire into Appellant’s understanding of the sentencing
terms in his plea agreement. We find no prejudicial error in the military
judge not inquiring into Appellant’s understanding of the plea agreement. 3
However, we find the Government failed to state an offense when it charged
Appellant with one specification of possessing a machine gun. We set aside
and dismiss this specification and the segmented portion of the corresponding
sentence. We reassess the unitary and segmented portions of the remaining
sentence and conduct an analysis for sentence appropriateness. Finding all of
the remaining segmented sentences inappropriate, we affirm the remaining
findings and affirm the unitary portion of the sentence, but only affirm the
remaining segmented portions of the sentence to the extent they are appro-
priate. We take action in our decretal paragraph.
1 10 U.S.C. §§ 883, 907, 934.
2 We use the modern spelling of “machine gun” except when quoting directly from
26 U.S.C. § 5854(b), which spells “machinegun” as one word.
3 We have considered this AOE and find Appellant demonstrated good cause un-
der Rule for Courts-Martial [R.C.M.] 902A(d) to change his election at arraignment
for whether pre-MJA 16 or MJA 16 sentencing rules applied because it was a term of
his subsequent plea agreement. See United States v. Matias, 25 M.J. 356, 363 (C.M.A.
1987).
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Opinion of the Court
I. BACKGROUND
A. The Bureau of Alcohol, Tobacco, Firearms, and Explosives Out-
laws Bump Stocks
In October 2017, the nation was shocked, saddened, and outraged when a
man opened fire on a large crowd attending a concert from his hotel room
window in Las Vegas. The shooter killed approximately 60 people, wounded
many, many more, and added fuel to the ongoing political debate on gun
control. When it was revealed the shooter used a device called a “bump stock”
to fire his semi-automatic rifles in a manner which nearly reproduced rates of
fire for fully-automatic weapons, there were calls to outlaw these devices.
A bump stock allows a shooter to more easily conduct what is known as a
“bump fire” on a semi-automatic rifle. In a semi-automatic rifle, one pull of
the trigger initiates a trigger function that will only fire a single round of
ammunition. In a fully automatic rifle, or machine gun, one pull of the trigger
initiates a trigger function that continuously fires ammunition as long as the
trigger is being pulled. A bump fire, aided by a bump stock, will closely
resemble the firing rate of an automatic rifle. It does this by using the natu-
ral recoil of the weapon to engage the trigger. Instead of a shooter moving his
finger to pull the trigger to fire a round, the stock of the weapon moves back
and forth, or “bumps” the trigger against the shooter’s trigger finger main-
tained in a pull position while the shooter also presses forward on the barrel
or upper receiver with his non-firing hand.
Within days of the Las Vegas mass shooting, the President commented
that the Executive Branch would be “looking into” 4 a ban on bump stocks.
About a month after the shooting, a bill was introduced in Congress called
the “Closing the Bump-Stock Loophole Act” 5 which would have effectively
outlawed bump stocks by treating them in the same manner as a “machine
gun”—or fully automatic weapons—which had, generally speaking, already
been illegal since 1986 and heavily regulated for 70 years. This bill was never
acted on by either the House of Representatives or the Senate, nor was any
legislation ever passed outlawing bump stocks.
4 On October 6, 2017, President Donald Trump made this remark from the
Cabinet Room of the White House just prior to meeting with senior military leaders.
See Speeches and Remarks, White House Press Office, https://web.archive.org/web
/20171006131505/https://www.whitehouse.gov/the-press-office/2017/10/06/remarks
-president-trump-meeting-senior-military-leaders.
5 Closing the Bump-Stock Loophole Act, H.R. 4168, 115th Cong. (2017).
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Opinion of the Court
Instead, the President directed the Bureau of Alcohol, Tobacco, Firearms,
and Explosives [ATF] to issue a new interpretation of a rule—that contra-
dicted the ATF’s previous interpretation—governing legislation from the
1930s. This Executive-Branch change in statutory interpretation aimed to
outlaw bump stocks prospectively, without a change in existing statutes.
In 1934, Congress passed a bill and the President signed into law the Na-
tional Firearms Act [NFA] to address automatic weapons (the weapon of
choice for Chicago gangsters during Prohibition). The NFA imposed a signifi-
cant tax on the importation and transfer of machine guns, which it defined
as, “. . . any weapon which shoots, is designed to shoot, or can be readily
restored to shoot, automatically or semiautomatically, more than one shot,
without manual reloading, by a single function of the trigger.” 6 Congress
amended this statutory language when it passed the 1968 Gun Control Act
[GCA], which removed the word “semiautomatically” from the definition of
machine gun and addressed parts that could be used to assemble a machine
gun.
In 1986, Congress passed the Firearms Owners’ Protection Act [FOPA],
banning possession of machine guns not owned before 1986. FOPA also
banned any parts, to include frames and receivers, which were part of a
machine gun or were designed for converting a weapon into a machine gun.
The current statute at issue is 26 U.S.C. § 5845(b), which defines what a
machine gun is. Due to having a bump stock, Appellant was charged under
the statute which states that a machine gun is “any weapon which shoots, is
designed to shoot, or can be readily restored to shoot, automatically, more
than one shot, without manual reloading, by a single function of the trigger.” 7
In 2002, William Akins invented a bump stock device, known as the
“Akins Accelerator.” He requested the ATF evaluate it to determine if it
would be classified as a machine gun. One key difference from more modern
bump stocks—including the one at issue in this case—was that the Akins
Accelerator had an internal spring that created forward pressure on the
weapon, rather than a shooter using manual pressure with the non-firing
hand. Initially, the ATF did not consider the device to be a machine gun,
because it defined the 1934 NFA’s term “single function of the trigger” as a
6 National Firearms Act of June 26, 1934, chs. 757, 758, 48 Stat. 1236–1240 (codi-
fied as amended in 26 U.S.C. 5801–5872 (2018)) (emphasis added).
7 26 U.S.C. § 5845(b).
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Opinion of the Court
“single movement of the trigger.” 8 The Akins Accelerator relied on, and
helped facilitate, rapid single movements of the trigger to produce the in-
creased firing rate. In 2006, the ATF reversed course and decided the device
“result[ed] in a weapon that shoots more than one shot, without manual
reloading, by a single pull of the trigger 9 and was a machine gun as defined
by the NFA and GCA.
Akins filed suit in federal district court and lost on summary judgment. In
an unpublished decision, the U.S. Court of Appeals for the Eleventh Circuit
affirmed, holding (1) the phrase, “single function of the trigger,” means a
“single pull of the trigger,” 10 (2) the ATF’s interpretation was consistent with
“the statute and its legislative history,” 11 and (3) that with “a single applica-
tion of the trigger . . . the Accelerator uses its internal spring and the force of
the recoil to fire continuously . . . .” 12 The court also held that using the word
“function” instead of “pull” to “reference the action taken by a gunman to
commence the firing process is not so confusing that a man of ordinary
common intelligence would have to guess at its meaning.” 13
The classification of modern bump stocks, 14 which do not have internal
springs and therefore require the shooter to keep constant forward pressure
on the upper receiver while firing, has also been reconsidered by the ATF.
Ten times between 2008 and 2017, the ATF classified bump stocks to be a
firearm part and not a machine gun. 15 But in March 2018, in response to the
President’s direction in the wake of the Las Vegas shooting, the ATF pub-
lished a notice of proposed rulemaking proposing to clarify the interpreta-
tions of “single function of the trigger” and “automatically.” 16 The ATF’s
proposed clarification resulted in bump stocks being classified as machine
8 Bump-Stock-Type Devices, 83 Fed. Reg. 66,514, 66,517 (Dec. 26, 2018) (to be
codified at 27 C.F.R. 477, 478, 479).
9 Akins v. United States, 312 Fed. App’x. 197, 199 (11th Cir. 2009).
10 Id. at 200.
11 Id.12 Id.13 Id. at 201.
14Unless otherwise indicated, references in this opinion to “bump stocks” refer to
modern bump stocks.
15 83 Fed. Reg. at 66,517.
16 Bump-Stock-Type Devices, 83 Fed. Reg. 13,442, 13,447 (proposed Mar. 29,
2019).
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Opinion of the Court
guns under 26 U.S.C. § 5845(b). In December 2018, the ATF’s “Final Rule”
concluded that bump stocks were machine guns and that owners must either
destroy them or surrender them to the ATF by 26 March 2019. 17
B. Appellant Went on Leave to Nebraska
Appellant was stationed in Hawaii. On 22 May 2019 [about two months
after the safe harbor to surrender bump stocks had expired] he was headed to
the airport to go on leave to visit his foster parents in Nebraska. While a
fellow Marine was driving him to the airport, Appellant’s supervisory gun-
nery sergeant called to inform him he did not check-out properly. Appellant
lied to the gunnery sergeant and told him his flight had been cancelled and
re-scheduled for an earlier time. After getting off the phone, Appellant made
comments to the other Marine that he would shoot up the shop if he got
“more negative paperwork” because of the improper check-out. 18 The other
Marine subsequently reported these comments to his unit. Appellant’s unit
responded by listing him in an unauthorized leave status and reported his
threats of violence, which were communicated throughout the Department of
Defense and to civilian law enforcement in the Defense Biometric Identifica-
tion System [DBIS].
Appellant’s leave destination was near Offutt Air Force Base [AFB] out-
side of Omaha. During his leave, Appellant had worked out a few times on
base without having any problems at the gate. But around Appellant’s tenth
day of leave, he was stopped when he tried to enter the base. A gate guard
saw Appellant was flagged in DBIS and ordered him to turn off his vehicle.
Appellant was detained, handcuffed, and asked if he had any weapons in
his truck. Appellant, an avid firearms enthusiast, did have some firearms in
his truck, but he initially lied and said “no.” Within minutes, and prior to the
search of his vehicle, 19 he told a security officer, an Air Force Technical
Sergeant [E-6], that he did in fact have weapons in his truck. The search,
conducted by the Air Force Office of Special Investigations [AFOSI], produced
two pistols, one rifle, about 700 rounds of ammunition, body armor, a sus-
pected silencer, and a bump stock. This discovery prompted the Naval Crimi-
nal Investigative Service [NCIS] and the ATF to become involved.
17 Bump-Stock-Type Devices, 83 Fed. Reg. at 65,514.
18 Pros. Ex. 13.
19 The Record strongly implies this fact. The security officer’s statement indicated
Appellant confessed to having weapons in his vehicle. After this confession, the
security officer stated, “At this time AFOSI agent arrived on scene.” Def. Ex. A at 2.
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Opinion of the Court
The next day, ATF and NCIS agents visited the home of Appellant’s foster
parents. 20 Appellant’s father gave the agents permission to search Appel-
lant’s room and closet. The agents found a shotgun and two devices known as
“switches.” A switch is a device, illegal under 26 U.S.C. § 5845(b), which
makes semi-automatic pistols shoot automatically. One switch was found in a
toolbox inside the closet and the other was inside a safe that was also inside
the closet. Appellant’s father gave the agents the combination to the safe and
allowed them to open it. Appellant’s parents told the agents they were una-
ware Appellant had ever made any threats or expressed any discontent with
any of the people with whom he served. They described Appellant as a patri-
otic individual who believed the military was the correct path for his life, and
who, prior to enlisting in the Marine Corps, had worked as a prison guard
and a part-time interpreter for the Federal Bureau of Investigation [FBI].
NCIS agents took custody of Appellant, who was being held at Offutt
AFB, and escorted him back to Hawaii where he was placed in pretrial
confinement. The convening authority referred charges to a general court-
martial about three-and-a-half months later.
C. Appellant Pleaded Guilty, Conditionally, at a General Court-
Martial
Appellant was arraigned in October 2019. At that Article 39(a) session,
the military judge informed him that because the dates of some of his
charged offenses occurred before 1 January 2019, he could elect to be sen-
tenced under the sentencing rules in effect prior to the Military Justice Act of
2016 [MJA 16] taking effect. Appellant elected to be sentenced under the
“old” [pre-MJA 16] rules.
1. The plea agreement
A few days after the arraignment, Appellant entered into a plea agree-
ment with the convening authority. The convening authority agreed to
dismiss some of the charges and specifications. 21 In exchange, among other
20 At, “close to 17 years of age,” Appellant, after being in many different foster
homes, was taken into the home where he spent his leave. He “continued to live in
[the] home until he became independent” and “continued [his] relationship” with his
foster parents. R. at 287. We refer to them as his mother and father though they are
not his biological parents or his adopted parents. Def. Ex. B.
21 The convening authority dismissed (1) the unauthorized absence that started
this chain-of-events [Article 86, UCMJ]; (2) violating a general order prohibiting the
transportation of privately owned firearms aboard Offutt AFB, and dereliction of
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Opinion of the Court
things, Appellant agreed to be sentenced under the “new” MJA 16 sentencing
rules, which was a reversal of his election made at his arraignment. He also
agreed to plead guilty before a military judge alone to (1) a single specifica-
tion of fraudulent enlistment in violation of Article 83; (2) two specifications
of violating Article 107 by falsely telling his gunnery sergeant that his flight
was cancelled and rescheduled for an earlier time, and for initially telling the
security officer at Offutt AFB that he did not have any firearms in his vehi-
cle; and (3) two specifications of violating Article 134 for illegally possessing a
bump stock as defined by 26 U.S.C. § 5845(b) and two switches as defined by
the same statute.
Appellant also agreed to forfeit to the Government a pistol, two rifles, his
bump stock, and all of his other firearms, ammunition, body armor, tactical
vests, holsters, suppressors, and magazines that were in the possession of
either NCIS or ATF.
One provision of the plea agreement was underlined in the original docu-
ment. Apparently, Appellant had made allegations of “racism, equal oppor-
tunity violations, and / or harassment” 22 against his command. The plea
agreement required him to acknowledge that he did not provide the command
the “necessary information” to investigate the allegations. The convening
authority agreed to reduce the maximum confinement from 38 months to 36
months, but required Appellant to agree that any mitigation potential con-
cerning his allegations was covered by this reduction, while acknowledging
that this reduction was “in no way an admission by the Command that [the]
allegations have merit, absent further information and investigation.” 23
Under the “new” sentencing rules, a convening authority and an accused
may agree that certain punishments will be adjudged by the military judge.
Here, the parties agreed that a bad-conduct discharge, total forfeitures, and
reduction to E-1 would be adjudged. In addition, the plea agreement indicat-
ed that confinement, to be served concurrently, would be adjudged as follows:
duty for not properly checking out with his unit the day he left Hawaii [Article 92,
UCMJ]; (3) making a false official statement by telling a first lieutenant that his
platoon chain-of-command was aware he was checking out early for leave [Article
107, UCMJ]; (4) carrying concealed weapons on board Offutt AFB [Article 114,
UCMJ]; and (5) making threats to shoot three named Marines and other unnamed
Marines in his unit [Article 115, UCMJ].
22 App. Ex. X at 10.
23 Id.8
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Opinion of the Court
fraudulent enlistment: 24 months,
lying to his gunnery sergeant about his flight: 24 to 36 months,
lying to the Offutt AFB security officer: 24 to 36 months,
possession of a bump stock: 24 to 36 months, and
possession of two switches: 24 to 36 months.
Finally, the plea agreement allowed for Appellant to conditionally plead
guilty to possessing a bump stock. Appellant moved the military judge to
dismiss that specification for failure to state a claim and preserved that same
issue for appeal.
2. The motion to dismiss and the guilty plea
Appellant filed his motion to dismiss just after he signed the plea agree-
ment. Generally, his argument was that the ATF invalidly interpreted 26
U.S.C. § 5845(b) to re-classify a bump stock as a machine gun. The Govern-
ment argued the ATF’s interpretation was valid and invoked “Chevron
deference”—the deference courts give to agency determinations in resolving
statutory ambiguity pursuant to the Supreme Court’s landmark 1984 deci-
sion in Chevron U.S.A. v. Natural Resources Defense Council, Inc. 24
At the motions hearing, the Defense presented the expert testimony of
Chief Warrant Officer-5 Whiskey, 25 a retired Marine Gunner 26 who, at the
time, worked as a consultant for a well-known arms manufacturer doing
research and development testing. In his 30-year career, he had been a scout
sniper, marksmanship instructor, completed several combat deployments,
and served as a gunner—a special advisor to commanders on manning,
training, and equipping infantry forces with a specialty in weapons—at the
battalion, Marine Division, and Marine Expeditionary Force levels. He also
served as the gunner for the Commandant of the Marine Corps. Gunner
24 467 U.S. 837 (1984).
25 All names used in this opinion, except those of the judges, appellate counsel,
Appellant, and those named in civilian cases are pseudonyms.
26 A Marine Gunner has unique qualifications as compared to other Marine Corps
Chief Warrant Officers in different military occupational specialty fields. In addition
to wearing a “bursting bomb” device on one collar, they are customarily referred to as
“Gunner” and are the only Marine Chief Warrant Officers who are properly given
such appellation. Thus, we refer to the witness as Gunner Whiskey rather than Chief
Warrant Officer-5 Whiskey.
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Whiskey had worked with the FBI and the ATF and was familiar with the
ATF rulemaking process. He was also familiar with bump firing and bump
stocks.
Gunner Whiskey testified about the technique of bump firing a semi-
automatic rifle. A shooter pulls the trigger, keeping his trigger finger rigid
against it, holds the rifle stationary, and applies forward pressure with his
non-firing hand. This causes the rifle’s recoil energy to continue the rifle’s
firing mechanism of firing, extracting, chambering, and firing more rounds. A
bump stock facilitates this by allowing the stock to slide, while the shooter
keeps his trigger finger applied to the trigger and presses forward on the
upper receiver. When asked if the “trigger is actually moving back and forth”
during bump firing, Gunner Whiskey answered, “And the shooter cannot feel
that, but yes, you’re absolutely right.” 27 When asked if “the trigger needs to
move back and forth between each and every round?” he replied, “It does.” 28
Appellant argued the bump stock did not change the mechanics of the
weapon and that a semi-automatic rifle equipped with a bump stock still fired
only one round per single function of the trigger. Appellant also argued,
among other things, that Chevron deference should not be applied to the
ATF’s interpretation because there is no statutory ambiguity to resolve. The
military judge denied the motion.
D. The Bump Stock Ban Has Been Litigated in Civilian Courts
The ATF ruling was immediately the subject of litigation in various civil-
ian courts. Such litigation is expected to continue, possibly to be resolved by
the Supreme Court. There have been a handful of challenges to the ATF rule
in the United States Court of Federal Claims and in federal district courts
under the Takings Clause, none of which has generated a final appellate
decision. 29 Generally speaking, when the government prevailed, it did so
27 R. at 68.
28 Id.
29 Cargill v. Barr, 502 F. Supp. 3d 1163 (W.D. Tex. 2020); Hardin v. Bureau of
Alcohol, 501 F. Supp. 3d 445 (W.D. Ky. 2020); Modern Sportsman, LLC v. United
States, 145 Fed. Cl. 575 (2019) (argued before the U.S. Court of Appeals for the
Federal Circuit in December 2020); McCutchen v. United States, 145 Fed. Cl. 42(2019); Lane v. United States, No. 19-CV-01492-X, 2020 U.S. Dist. LEXIS 54545 (N.
Dist. Tex. Mar. 30, 2020) (unpublished). See also, Maryland Shall Issue v. Hogan,
963 F.3d 356 (4th Cir. 2020) (based on Maryland’s state ban on bump stocks), cert.
denied, ___ U.S. ___, 209 L. Ed. 731 (May 3, 2021).
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based on Chevron deference. In one case, a plaintiff prevailed (Lane v. United
States 30 in the Western District of Texas), but the government was allowed to
refile a motion to dismiss.
Three cases have resulted in federal appellate opinions from the Tenth
Circuit, the District of Columbia Circuit, and the Sixth Circuit, but they all
relied on Chevron deference or grappled with whether Chevron deference was
appropriate in criminal cases. It is fair to say that the various circuit judges
are not unanimous in their views on Chevron or the ATF’s interpretation of
the statute.
1. Aposhian v. Wilkinson, U.S. Court of Appeals for the Tenth Circuit
Clark Aposhian lived in Utah and owned a bump stock. Prior to the bump
stock ban taking effect, he filed suit in federal district court, seeking a pre-
liminary injunction against the United States. He argued that he was being
unlawfully deprived of his property. The district court denied his motion. 31
Aposhian appealed. Initially, a three-judge panel of the Tenth Circuit af-
firmed the district court’s judgment, though with a dissent. 32 The panel held
that the statute was ambiguous, and applied Chevron deference in favor of
the United States. Just four months later, the en banc Tenth Circuit vacated
the panel opinion, ordered a rehearing, and directed the parties to address
the Final Rule and how Chevron applies to criminal statutes. 33 But then in a
reversal of its reversal, the en banc court vacated its earlier ruling as improv-
idently granted and reinstated its initial panel opinion affirming the district
court. 34 Five of the eleven judges dissented, with four of them authoring
dissents. The overarching theme of the dissents was whether and how Chev-
ron deference ought to be applied.
2. Guedes v. BATFE, U.S. Court of Appeals for the District of Columbia
Circuit
In the District of Columbia, some plaintiffs—a combination of individuals
and firearms advocacy groups—also sought a preliminary injunction against
the implementation of the Final Rule. In this litigation, the case went from
30 2020 U.S. Dist. LEXIS 54545.
31 Aposhian v. Barr, 374 F. Supp. 3d 1145 (D. Utah 2019).
32 958 F.3d 969 (10th Cir. 2020).
33 973 F.3d 1151 (10th Cir. 2020).
34 Aposhian v. Wilkinson, 989 F.3d 890 (10th Cir. 2021).
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the district court, 35 to the United States Court of Appeals for the District of
Columbia Circuit, 36 to the Supreme Court, which denied certiorari, but issued
a cautionary note from Justice Gorsuch—who plainly stated that Chevron
“has nothing to say about the proper interpretation of the law before us” 37—
and then back down to the district court, which again found for the govern-
ment. 38
At the District of Columbia Circuit, the majority relied on Chevron to hold
that the ATF’s reading of the ambiguous statute was permissible. The dissent
argued that Chevron did not apply and reviewing de novo, would have found
that the ATF read the rule correctly concerning “single function of the trig-
ger” but incorrectly concerning “automatically.”
At trial, despite Justice Gorsuch’s cautionary note, the District Court for
the District of Columbia applied Chevron and granted the government’s
motion for summary judgment.
3. Gun Owners of America v. Garland, U.S. Court of Appeals for the Sixth
Circuit
In the Western District of Michigan, three gun rights organizations, two
individuals who owned bump stocks, and one prospective purchaser, also
sought a preliminary injunction to prevent the Final Rule from taking effect.
The district court denied the motion for an injunction because the Final Rule
was a “permissible interpretation” of the statute. 39 A panel of the Sixth
Circuit held that the district court erred in allowing the government to have
the benefit of Chevron deference in a criminal statute and that the ATF’s
Final Rule was not the best interpretation of the statute. 40
The panel’s majority opinion argued that Chevron deference was not war-
ranted for three reasons: (1) because criminal laws reflect the moral outrage
of a community, the proper expertise is the collective moral judgment of the
people rather than the moral judgment of agency experts; (2) such deference
35 356 F. Supp. 3d 109 (D.D.C. 2019).
36 920 F.3d 1 (D.C. Cir. 2019).
37 ___ U.S. ___, 140 S. Ct. 789 (2020).
38 ___ Fed. Supp. 3d ___, No. 18-CV-2988, 2021 U.S. Dist. LEXIS 30926 (D.D.C.
Feb. 19, 2021).
39 363 F. Supp. 3d 823 (W.D. Mich. 2019).
40 992 F.3d 466 (6th Cir. 2021).
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Opinion of the Court
in the criminal context violates the separation of powers because it allows the
Executive to functionally change the criminal laws without congressional
input; and (3) this deference runs afoul of the rule of lenity and does not
provide fair notice. The majority also held that “by single function of the
trigger” referred to the mechanical process of the trigger and not the shooter’s
pulling of the trigger.
The dissent pointed out that there are cases where the Supreme Court
has allowed Chevron deference to be applied in criminal matters; that such
deference is not waivable, and that because the statutory wording is ambigu-
ous—and the agency’s interpretation is reasonable—that Chevron deference
was appropriate.
However, about a month before oral argument in the case before this
Court, the en banc Sixth Circuit vacated the panel decision and agreed to
hear the case in front of the entire court. 41
II. DISCUSSION
A. Chevron Deference in Criminal Cases and Waiver of Chevron
As a preliminary matter, we address whether Chevron deference applies
to criminal cases, and whether the Government can waive a court’s reliance
on it. This is no small matter, because when courts apply Chevron deference,
the agency interpretation carries the day almost 80 percent of the time. 42
Appellant argues Chevron deference does not apply in criminal cases and,
naturally, agrees with the Government that it may waive reliance on the
doctrine. This waiver means the Government would not prevail with merely a
“reasonable” or “permissible” reading of the statute, but would only prevail if
it had the “best” reading of the statute. 43 All that being said, evidenced by the
many differing opinions of circuit court judges, the Supreme Court has not
provided a crystal clear answer as to whether Chevron deference applies in
criminal cases. As for waiver, the Supreme Court—just a few weeks prior to
41Gun Owners of Am., Inc. v. Garland, ___ F.3d ___, No. 19-1298, 2021 U.S. App.
LEXIS 19006 (6th Cir. June 25, 2021).
42 William N. Eskridge, Jr. & Lauren E. Baer, The Continuum of Deference: Su-
preme Court Treatment of Agency Statutory Interpretations from Chevron to Hamdan,
96 Geo. L.J. 1083, 1099 (2008). The authors also contend that agencies only prevail a
combined 36.2% of the time in criminal cases or when an agency interpretation raises
serious constitutional questions. Id.43 Chevron, 467 U.S. at 843.
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Opinion of the Court
oral argument in this case—accepted the Government’s offer in HollyFrontier
Cheyenne Refining, LLC v. Renewable Fuels Association, 44 an environmental
case, to waive reliance on Chevron deference. So, we first address a major
background issue, even if the Supreme Court’s recent decision in HollyFron-
tier—and the parties’ agreement—that the Government may waive reliance
on Chevron is dispositive to that issue.
In 1984, a Supreme Court of only six justices issued an opinion in an en-
vironmental regulation case that was little noted at the time. At issue was
whether the Reagan Administration’s interpretation of an Environmental
Protection Agency rule, which differed from the Carter Administration, was
valid under the governing statute. The Court, in an opinion by Justice Ste-
vens, departed from the traditional case-by-case analysis of interpretation of
executive agency rules, and held that when courts are interpreting an ambig-
uous statute, they must defer to the agency’s interpretation so long as its
interpretation is “permissible.” Since then, Chevron has been cited in various
federal court opinions almost 18,000 times. Chevron worked a revolution in
administrative law and increased executive agency power, but it was, and is,
not without its critics, 45 who argue that it violates separation of powers
because it confers too much legislative authority on the executive and strips
the judiciary of its “province and duty . . . to say what the law is.” 46
Part of the controversy over Chevron is whether courts must defer to an
agency’s interpretation of an ambiguous statute in a criminal matter. Chev-
ron itself was not a criminal case, though it did, like many, many federal
statutes incur the possibility of civil and criminal penalties. Eight years after
Chevron, in United States v. Thompson / Center Arms Co., 47 it appeared the
Court would apply the rule of lenity rather than defer to an agency where a
statute that called for criminal penalties was ambiguous. In the judgment of
the Court—there was only a plurality—Justice Souter doubted whether the
government was entitled to deference; in a concurrence, Justices Scalia and
Thomas believed the rule of lenity would apply in an ambiguous statute with
criminal penalties. Justice Stevens dissented and remarked that this was a
“tax case”—which it was—that only happened to have criminal penalties
along with the civil penalties in the statute. But just three years later, in
44 ___ U.S. ___, 141 S. Ct. 2172 (2021).
45 See, e.g., Philip Hamburger, Chevron Bias, 84 Geo. Wash. L. Rev. 1187 (2016).
46 Marbury v. Madison, 5 U.S. 137, 177 (1803).
47 504 U.S. 505 (1992).
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Opinion of the Court
Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 48 a case
involving a facial challenge to an environmental regulation, Justice Stevens,
writing for the Court, affirmed the agency’s interpretation of the statute. In a
footnote, he commented, “We have never suggested that the rule of lenity
should provide the standard for reviewing facial challenges to administrative
regulations whenever the governing statute authorizes criminal enforce-
ment.” 49
Babbitt, Thompson / Center, and Chevron itself, were all civil cases. But
United States v. O’Hagan 50 was not just a challenge to, or a violation of, a
statute with potential criminal penalties, it was a criminal case. O’Hagan, an
attorney, was prosecuted for insider trading, specifically for violating various
Securities and Exchange Commission [SEC] rules under the Securities and
Exchange Act of 1934. He was sentenced to 41 months in prison. 51 The Court
affirmed O’Hagan’s conviction, holding that the SEC’s judgment on its rules
determining what constituted insider trading were entitled to “more than
mere deference.” 52 The Court cited a pre-Chevron case 53 for the proposition
that when Congress has expressly delegated to an agency the direct legisla-
tive authority to prescribe rules pertaining to a statute, then that agency’s
assessment of those rules are given “controlling weight unless it is arbitrary,
capricious, or manifestly contrary to the statute.” 54 Justice Scalia, in one of
the dissents, challenged the Court’s reading of the rule, but he also made
clear the Court was not relying on Chevron deference. He remarked—
uncorrected or challenged by the majority—that the Court was issuing an
opinion “where (as here) no Chevron deference is being given to the agency’s
interpretation.” 55 O’Hagan may have been a criminal case involving an
agency’s opinion of its rules, but it was not one where Chevron deference was
applied.
48 515 U.S. 687 (1995).
49 Id. at 704, n.18.
50 521 U.S. 642 (1997).
51 United States v. O’Hagan, 92 F.3d 612, 614 (8th Cir. 1996).
52 O’Hagan, 521 U.S. at 673 (internal citation omitted).
53 Batterton v. Francis, 432 U.S. 416, 424–426 (1977).
54 O’Hagan, 521 U.S. at 673 (citing and quoting Chevron, 467 U.S. at 844).
55 Id. at 679 (Scalia, J., dissenting).
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United States v. Alkazahg, NMCCA No. 202000087
Opinion of the Court
In 2014, the Supreme Court made brief statements pertaining to Chevron
in two more criminal cases, United States v. Apel 56 and United States v.
Abramski. 57 In Apel, the Court affirmed a conviction for trespassing by a
protestor onto a military installation. Apel cited to a Department of Justice
manual for United States Attorneys and an Instruction issued by the Judge
Advocate General of the Air Force that appeared to support his argument
concerning whether the United States had exclusive jurisdiction to enforce
the area where he trespassed. The Court disagreed that those “Executive
Branch documents” were “intended to be binding” and added, “[e]ither way,
we have never held that the Government’s reading of a criminal statute is
entitled to any deference.” 58 While this would seem unequivocal, some have
argued that this dicta does not speak to the ultimate question of Chevron
deference in criminal cases because these “Executive Branch documents”
have much less authority than an agency rule.
Similarly, in Abramski the issue was whether the ATF’s relatively new
policy of interpreting what constituted a material term on forms used for
purchasing firearms. Abramski entered a conditional plea to making a false
material statement when he was making a “straw purchase” of a firearm for
his uncle. His uncle was legally eligible to purchase and possess a firearm.
When Abramski made the purchase, he wrote on the form that he, and not
his uncle, was the buyer. This was not true. Until 1995, the ATF would not
have considered this “material” because Abramski’s uncle was still lawfully
allowed to possess a firearm, but since then, the agency has interpreted such
an omission or false statement as material. Abramski argued that the Court
should consider the “old” ATF interpretation. Justice Kagan, writing for the
Court, emphatically disagreed with the premise:
We may put aside that ATF has for almost two decades now
taken the opposite position . . . . The critical point is that crim-
inal laws are for courts, not the Government, to construe. We
think ATF’s old position no more relevant than its current
one—which is to say, not relevant at all. 59
But again, like in Apel, the ATF position on a straw purchaser’s misrepresen-
tation, at issue in Abramski, was not subject to the notice and comment
56 571 U.S. 359 (2014).
57 573 U.S. 169 (2014).
58 Apel, 571 U.S. at 368–69.
59 Abramski, 573 U.S. at 191 (citing id, 571 U.S. at 369).
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United States v. Alkazahg, NMCCA No. 202000087
Opinion of the Court
rulemaking process that was employed by the ATF for its Final Rule regard-
ing bump stocks.
Though one can easily surmise that Justice Gorsuch believes Chevron
“has nothing to say about [a criminal] law,” 60 the Supreme Court as a whole
has not conclusively provided an answer to whether Chevron deference
applies in criminal cases where an ambiguous statute is defined by an agency
rule subject to notice and comment rulemaking procedures. There is no case
directly on point from the Court, or for that matter, any persuasive authority
from the various Circuit Courts of Appeal, as those cases were all civil actions
seeking preliminary injunctions. The Court of Appeals for the Armed Forces
[CAAF] has cited Chevron only twice and never applied Chevron deference.
The first was to note that although the lower court and the parties relied on
Chevron, it did not apply to selection of courts-martial members under Article
25, UCMJ. 61 The second was just to quote Chevron’s language that when
Congress has “spoken to the precise question at issue” a court must “give
effect to the unambiguously expressed intent of Congress.” 62 This Court has
also only cited Chevron twice. The most recent citation was in a dissent that
merely noted that a Defense Finance and Accounting Service regulation of
pay, though it might not be entitled to Chevron deference, might well be
worthy of other modes of judicial deference (i.e., Skidmore 63 deference). 64
However, this Court’s first citation to Chevron was in United States v.
Baldwin, 65 an unpublished decision, which briefly addressed the issue. The
appellant argued that when he ordered controlled substances through the
mail while he was stationed in Iraq, he did not violate a federal statute
prohibiting mailing of “all kinds of poison.” The Government then argued
that according to some United States Postal Service regulations, controlled
60 Guedes, 140 S. Ct. at 789.
61 United States v. Bartlett, 66 M.J. 426, 427 (C.A.A.F. 2008).
62 United States v. Kearns, 73 M.J. 177, 181 (C.A.A.F. 2014).
63 Skidmore v. Swift & Co., 323 U.S. 134 (1944) (less deference given to an agen-
cy’s informal documents such as internal opinion letters and bulletins).
64 United States v. Jones, No. 201200264, 2015 CCA LEXIS 573 at *34–35 (N-M.
Ct. Crim. App. Dec. 29, 2015) (Brubaker, S.J., concurring in part and dissenting in
part) (unpublished), rev’d sub nom. United States v. Howell, 75 M.J. 386 (C.A.A.F.
2016).
65 No. 200800882, 2009 CCA LEXIS 375 (N-M. Ct. Crim. App. Oct. 29, 2009) (un-
published).
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United States v. Alkazahg, NMCCA No. 202000087
Opinion of the Court
substances could qualify as “poison” under the statute. This Court acknowl-
edged that Chevron “deference is ordinarily owed the interpretation of the
administrative agency charged with overseeing a particular statute.” 66 But,
along with other problems with the Government’s arguments, this Court
stated we would not apply Chevron deference because, “The rule of lenity
militates against such deference in the context of a criminal statute lacking
clear and definite terms, particularly when the statute at issue fails to make
the violation of the respective agency’s rules and regulations an offense.” 67
We cited to a concurrence in a 1990 Supreme Court case, Crandon v. United
States, 68 which was also cited later by the Supreme Court in Apel for the
same proposition.
On balance, we are skeptical that when the judiciary interprets an am-
biguous criminal statute it must defer to the judgment of the same executive
who is prosecuting the defendant. This appears to undercut the bedrock
concept of separation of powers embedded in our Constitution. The Framers
were well-versed in the political philosophy behind separation of powers as
expressed by Montesquieu, Blackstone, Locke, and even Aristotle. 69 Histori-
cally, concentration of power is the death knell for self-government and
liberty. We also doubt whether the Supreme Court has clearly told us we
must defer to the Government’s view that Appellant has violated an ambigu-
ous criminal statute just because it is the Government’s current “permissible”
view. But it is something we need not decide to resolve this issue.
Just a few weeks before oral argument in this case, the Supreme Court
issued its opinion in HollyFrontier. During the previous administration, the
government argued the case at the lower court and asked for and received
Chevron deference. However, HollyFrontier plainly describes the govern-
ment’s about-face: “With the recent change in administrations, ‘the govern-
ment is not invoking Chevron.’ Brief for Federal Respondent 46–47. We
therefore decline to consider whether any deference might be due its regula-
66 Id. at *12.
67 Id. at *13.
68 494 U.S 152, 177–78 (1990) (Scalia, J., concurring).
69 See generally, The Federalist Nos. 47–51 (James Madison). In Federalist 47,
Madison calls the “accumulation of all powers, legislative, executive, and judiciary, in
the same hands . . . the very definition of tyranny.” See also Steven G. Calabresi,
Mark E. Berghausen, & Skylar Albertson, The Rise and Fall of the Separation of
Powers, 106 N.W. L. Rev., 527, 529–36 (2012).
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United States v. Alkazahg, NMCCA No. 202000087
Opinion of the Court
tion.” 70 At the lower court the government won with Chevron, but lost at the
Supreme Court without it. Following the HollyFrontier Court, and the Gov-
ernment’s disclaimer of Chevron deference in this case, in both its written
pleading and at oral argument before us, we hold that the Government may
waive reliance on Chevron. And despite HollyFrontier not being a criminal
case, we further find that the Government’s waiver of Chevron is not affected
by whether the waiver comes in a criminal or civil case.
B. Though the Statute is Ambiguous, Appellant’s Bump Stock is Not a
Machine Gun Under the Statute
1. Standard of review and the law
This Court reviews de novo questions of statutory interpretation and
whether a specification states an offense.” 71
In statutory construction, we must first look to the statute and “give effect
to the clear meaning of statutes as written.” 72 Each word of a statute should
be given its “ordinary, contemporary, and common meaning” 73 at the time the
statute was enacted. When a statute’s language “is unambiguous, the stat-
ute’s plain language will control.” 74 Whether a statute is ambiguous or not is
determined, not by mere disagreement by the parties, but “by reference to the
language itself, the specific context in which the language is used, and the
broader context of the statute as a whole.” 75 The separation of powers doc-
trine prevents courts from interpreting statutes to “accommodate [a] policy
concern.” 76
70 HollyFrontier, ___ U.S. ___, 141 S. Ct. at 2180. Justice Gorsuch, one of the
more vocal critics of Chevron, was writing for the Court.
71 United States v. Schloff, 74 M.J. 312, 313 (C.A.A.F. 2015) (citing United States
v. Vargas, 74 M.J. 1, 5 (C.A.A.F. 2014) (statutory interpretation); United States v.
Rauscher, 71 M.J. 225, 226 (C.A.A.F. 2012) (state an offense).
72 United States v. Andrews, 77 M.J. 393, 400 (C.A.A.F. 2018) (internal citation
and quotation omitted).
73 Id. (internal citation and quotation omitted).
74 United States v. Jacobsen, 77 M.J. 81, 84 (C.A.A.F. 2017) (citing United States
v. Schell, 72 M.J. 339, 343 (C.A.A.F. 20130).
75 United States v. McPherson, 73 M.J. 393, 395 (C.A.A.F. 2014) (citing Robinson
v. Shell Oil Co., 519 U.S. 337, 341 (1997)).
76 Henry Schein, Inc. v. Archer & White Sales, Inc., 139 S. Ct. 524, 531 (2019).
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United States v. Alkazahg, NMCCA No. 202000087
Opinion of the Court
In interpreting statutes, courts have a host of tools available. We consider
the overall structure and text of a statute and use various applicable canons
of statutory construction. Canons such as the whole-text, consistent usage,
and the associated words canon (noscitur a sociis or “it is known by its associ-
ates”) apply here. One additional canon, should all else fail, is the rule of
lenity, which, as articulated by Chief Justice Marshall in 1820, is the “well
known rule that . . . a penal statute . . . is to be construed strictly” and is
“founded on the tenderness of the law for the rights of individuals.” 77
The statute, as discussed above, defines “machinegun.” Under section (b)
of the statute:
The term “machinegun” means any weapon which shoots, is
designed to shoot, or can be readily restored to shoot, automati-
cally, more than one shot, without manual reloading, by a sin-
gle function of the trigger. 78
But the statute also covers other types of firearms, such as rifles and
shotguns. In section (c):
The term “rifle” means any weapon designed or redesigned,
made or remade, and intended to be fired from the shoulder
and designed or redesigned and made or remade to use the en-
ergy of the explosive in a fixed cartridge to fire only a single
projectile through a rifled bore for each single pull of the trig-
ger, and shall include any such weapon which may be readily
restored to fire a fixed cartridge. 79
And in section (d):
The term “shotgun” means any weapon designed or rede-
signed, made or remade, and intended to be fired from the
shoulder and designed or redesigned and made or remade to
use the energy of the explosive in a shotgun shell to fire
through a smooth bore either a number of projectiles (ball shot)
or a single projectile for each pull of the trigger, and shall in-
clude any such weapon which may be readily restored to fire a
fixed shotgun shell. 80
77 United States v. Witlberger, 18 U.S. 76, 94–95 (1820).
78 26 U.S.C. § 5845(b).
79 26 U.S.C. § 5845(c) (emphasis added).
80 26 U.S.C. § 5845(d) (emphasis added).
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2. The statute is ambiguous
At its heart, the disagreement is whether the bump stock’s significant in-
crease in a semi-automatic rifle’s firing rate—despite it still technically only
firing a single round per single pull of the trigger—and whether the shooter’s
non-firing hand action is part of the “automatic” firing sequence makes a
semi-automatic rifle a machine gun. The Government favors a reading of the
term “single function of the trigger” to mean that the bump stock’s recoil
capture, the action of the shooter’s non-firing hand applying forward pressure
on the barrel or upper receiver of the rifle, and the apparent single pull of the
trigger means that the rifle is “automatically” firing multiple shots. This is a
“shooter-focused” approach to the statute. But Appellant argues that contrary
to the shooter-focused approach, the statute speaks only to the internal
mechanical workings of the rifle. Under this view of the statute’s meaning, a
machine gun is a weapon, which if one pulls the trigger, and nothing else, the
“function” of the trigger automatically continues to feed, chamber, lock, fire,
unlock, extract, eject, cock—and repeat—until the shooter stops or until the
ammunition is depleted. Appellant’s argument has been characterized as a
“mechanical reading.”
Bump stocks have been around for almost twenty years. During that peri-
od, the ATF has issued multiple opinions on whether the devices constitute
machine guns under the statute. First, in considering the Akins Accelerator—
the bump stock with the internal spring—the ATF considered it not to be a
machine gun. Then it changed its mind, deciding that it was. For over a
decade, the ATF consistently interpreted the statute to mean that bump
stocks like the one Appellant possessed were not machine guns. Then it
changed its mind after the Las Vegas shooting and the President’s direction
to do so. While the ATF, like other executive agencies, is allowed to change its
mind about how it interprets its governing statutes and agency rules, its
dramatic about-face indicates the statute is less than crystal clear about
what exactly is a machine gun. Historically, the practice of firearms manu-
facturers approaching the ATF for advisory opinions before selling a firearm
or firearm component, such as a bump stock, informs our view. Asking the
government if your proposed behavior violates the law could just be prudence,
but it is also a sign the law might be ambiguous. Because of the plausibility
of either the shooter-focused or the mechanical reading, we find the statute
with respect to the meaning of “by a single function of the trigger” and
“automatically” is ambiguous.
3. “By a single function of the trigger”
We start with a dictionary. We look for what the most commonly under-
stood meaning of the term was at the time of the enactment of the statute.
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United States v. Alkazahg, NMCCA No. 202000087
Opinion of the Court
Though the NFA was passed in 1934, as the (since vacated) majority panel
opinion from the Sixth Circuit in Gun Owners of America pointed out, in
1968, with the GCA, Congress chose to redraft the NFA, but left identical
language for this section of the statute. 81 Thus, we rely on 1968-era dictionar-
ies instead of ones from 1934, though there is no material change in the
meaning of “function” (or “automatically”) between the time periods.
In the relevant context, the term “function” means “the acts or operations
expected of a . . . thing” or the “characteristic action of a . . . manufactured or
created thing.” 82 It is also defined as “the action for which a . . . thing is
specially fitted, [or] used” or “the activity appropriate to the nature . . . of a
. . . thing.” 83 The question is whether it is an “action” of the shooter or an
“action” of the trigger and all the associated mechanical parts of the firearm
that are engaged as a result of pulling the trigger. The best read implies that
the shooter initiates the trigger function by some action, such as pulling the
trigger—or it could be by just pushing a button—and it is the follow-on action
where the trigger acts out its mechanical design or purpose that speaks to the
“function of the trigger.” The statute does not say “by a single function of the
trigger finger” nor does it say “by a single pull of the trigger in addition to
external pressure from the shooter’s non-firing hand.”
The Government asks this Court to rely on a footnote in the Supreme
Court’s opinion in Staples v. United States 84 in interpreting what a machine
gun is. The Court’s footnote stated:
As used here, the terms “automatic” and “fully automatic”
refer to a weapon that fires repeatedly with a single pull of the
trigger. That is, once its trigger is depressed, the weapon will
automatically continue to fire until its trigger is released or the
ammunition is exhausted. Such weapons are “machineguns”
within the meaning of the Act. We use the term “semiautomat-
ic” to designate a weapon that fires only one shot with each pull
of the trigger, and which requires no manual manipulation by
81 Gun Owners of America, Inc., 2021 U.S. App. LEXIS at *53, n.8 (citing Sandif-
er v. U.S. Steel Corp., 571 U.S. 220, 226–28 (2014)).
82 Webster’s Seventh New Collegiate Dictionary 338 (1967).
83 Webster’s Third New International Dictionary 920–21 (1967).
84 511 U.S. 600 (1994).
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Opinion of the Court
the operator to place another round in the chamber after each
round is fired. 85
This footnote appears in the introductory paragraph of the first section of
the opinion as the Court lays out the NFA’s general background. The footnote
pertains to the sentence, “Thus, any fully automatic weapon is a ‘firearm’
within the meaning of the Act.” 86
This footnote is not the interpretation of a statute. The issue in Staples
was whether or not the statute in question contained a mens rea element for
firearms purchasers and whether certain firearms fell within the statute’s
definition of a machine gun. This footnote is merely a general and basic
explanation for a reader who may be unfamiliar with firearms. We are not
the only court to make this observation. In United States v. Olofson, 87 the
Seventh Circuit held that a firearm was a machine gun when it fired military
grade ammunition automatically despite it jamming after only a three or four
round burst when using civilian grade ammunition. The court “described the
Staples footnote as merely ‘offering commonsense explanations’ of the words
automatic and semiautomatic, which confirms that we did not consider that
passage to be precedentially binding.” 88
Another consideration that goes squarely against the Government’s read-
ing is that it urges us to judicially transform the phrase “by a single function
of the trigger” into “by a single pull of the trigger.” The overall structure and
text of the statute will not allow this. In defining rifles and shotguns, Con-
gress chose to use the phrases “single pull of the trigger” and “each pull of the
trigger” respectively. “We do not, however, construe statutory phrases in
isolation; we read statutes as a whole.” 89 Had Congress wanted to use the
phrase “by a single pull of the trigger” for machine guns, it could have. But it
did not. Congress could have suggested that a shooter-focused approach or
even a rate-of-fire approach was the way to read the statute by enacting
those words. Even the term “machine gun” suggests a mechanical approach
where the shooter interaction is extremely limited. Applying the whole-text
canon, we find that a machine gun shoots “by a single function of the trigger,”
85 Id. at 602, n.1.
86 Id. at 602.
87 563 F.3d 652 (7th Cir. 2009).
88Id. at 658 (quoting United States v. Fleischli, 305 F.3d 643, 655 (7th Cir. 2002))
(cleaned up).
89 United States v. Morton, 467 U.S. 822, 828 (1984).
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Opinion of the Court
whereas firearms that are not machine guns, such as rifles and shotguns,
shoot with a “single pull of the trigger.” Thus, “by a single function” cannot be
read to mean “by a single pull.”
Along with the whole-text canon, we also consider the canon of consistent
usage. As noted above, the statute uses the term “single function of the
trigger” for machine guns, but “single pull” or “each pull” of the trigger for
rifles and shotguns. A term that is used in a statute should be interpreted to
mean the same thing when that term is repeated in the same statute, just as
different terms should not be interpreted to mean the same thing unless the
statute clearly indicates otherwise. For example, if a statute “says land in
one place and real estate later, the second provision presumably includes
improvements as well as raw land.” 90 The take-away is that land and real-
estate mean something different, just as function and pull do. The Govern-
ment’s interpretation would require the statute to have identical meanings
for different terms. The more logical read is that when the statute uses
different terms, the different terms have different meanings. That is another
reason that “by a single function” cannot be read to mean “by a single pull.”
Somewhat, though not perfectly, adjacent to the whole-text and con-
sistent-usage canons is the canon of associated words, or noscitur a sociis.
This canon is usually employed concerning lists of similar things. Should
there be confusion over what one of the terms means, it is resolved in a way
that defines the term to be included among the other terms in the most
natural and common way. In short, “a word is known by the company it
keeps.” 91 The statute describes three very different types of firearms: ma-
chine guns, rifles, and shotguns. It also treats them very differently based on
how they are operated and even manufactured. They are listed in separate
definitional sub-sections. They should not be merged together as all having
identical definitions describing their singularly relevant method of operation,
i.e., by a “single pull of the trigger.” They are not associated in the statute in
a way that the common reader would understand them to be like one another
in the overall context. In the text, machine guns, rifles, and shotguns do not
keep one another’s company. Similarly, “function” does not keep the company
of “pull,” and the former should not be replaced by the latter using a judicial
shoehorn.
90 Antonin Scalia & Bryan Garner, Reading Law: The Interpretation of Legal
Texts, 170 (2012).
91 United States v. Martinelli, 62 M.J. 52, 61 (C.A.A.F. 2005).
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United States v. Alkazahg, NMCCA No. 202000087
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We conclude that when the statute uses the phrase “by a single function
of the trigger,” it speaks to the mechanical actions, makeup, design, and
attributes of the firearm itself, and includes modifications making the fire-
arm operate precisely as a machine gun would under the statute. Here, the
“function” of the trigger in a semi-automatic rifle, even with a bump stock
attached, is to fire only a single round with each single pull of the trigger. But
the “function” of the trigger in a machine gun is the mechanical process of
firing multiple rounds with only a single pull of the trigger by the shooter.
4. “Automatically”
Holding that bump stocks do not come within the statutory definition of a
machine gun because they do not allow firearms to fire multiple rounds “by a
single function of the trigger,” it is unnecessary to address the meaning of
“automatically.” However, assuming arguendo we have erred in our analysis
of the meaning of “by a single function of the trigger,” we hold that a bump
stock also does not make a weapon fire “automatically” under the statute.
Again, we start with a dictionary from near 1968. “Automatically” is de-
fined as the adverbial form of automatic. “Automatic” means “[h]aving a self-
acting or self-regulating mechanism that performs a required act at a prede-
termined point in an operation” 92 or “self-acting under conditions fixed for it,
going of itself.” 93 One of the definitions from an unabridged 1967 dictionary is
on point in defining “automatic” for “of a firearm.” The definition:
Marked by the use of either gas pressure or force of recoil
and mechanical spring action for ejecting the empty cartridge
case after the first shot, loading the next cartridge from the
magazine, firing, ejecting the spent case, and repeating the
above cycle as long as the pressure on the trigger is maintained
and there is ammunition in the magazine or other loading de-
vice. 94
The crux of the disagreement here is whether a machine gun will fire au-
tomatically without any human, non-mechanical action beyond just pulling
the trigger. The Government argues that the pressure a shooter would
normally use to keep his finger on the trigger finger is merely continued, but
enhanced by forward pressure on the barrel or upper receiver of the firearm.
92 Webster’s Third New International Dictionary 148 (1967).
93 Webster’s Seventh New Collegiate Dictionary 338 (1967).
94 Webster’s Third New International Dictionary 148 (1967).
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United States v. Alkazahg, NMCCA No. 202000087
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“A bump stock simply relocates the focus of that pressure.” 95 But Appellant
argues this human interaction causing the forward pressure “takes it out of
the realm of ‘automatic.’ ” 96
The statute states, in part, that a machine gun is a firearm that will
“shoot, automatically more than one shot, without manual reloading, by a
single function of the trigger.” 97 So, this necessarily means that the shooting
is only automatically done by a single function of the trigger, and only a
single function of the trigger. The syntax indicates that anything that makes
the firearm shoot “automatically” beyond a single function of the trigger is
not a machine gun within the meaning of the statute. The Government’s
reading of the statute means that a firearm that shoots more than one shot
by a single pull of the trigger—from the shooter’s perspective—and also
forward pressure on the weapon with the non-shooting hand is a machine
gun.
The word “automatically” conjures up images of machines, or robots, or
automatons. All things that are separate and distinct from a person. Even the
word “auto,” from the Greek autόs, means “self” or “of or by oneself, inde-
pendently.” 98 An autobiography is a person’s biography penned by the sub-
ject. An automobile is self-moving, a plane on auto-pilot is self-flying, an
autograph is someone’s own signature, and so forth. “Matic” is derived from
the Latin ment- or mens, meaning mind. 99 In short, “automatic” suggests by
its ordinary meaning de minimus human interaction and only just enough to
merely initiate the “automatic” process.
With a machine gun, the automatic process that matters is the feeding,
firing, and ejecting of ammunition. The single pull of the trigger is what
initiates the process. Continuing to hold the trigger is an extended initiation
sequence that continues until the weapon either malfunctions or exhausts its
ammunition. And this makes all the difference. An extended initiation
sequence where a shooter simply pulls and holds the trigger on a semi-
automatic firearm, only fires a single round. This is still true when that same
semi-automatic firearm has a bump stock attached to it. Any actions beyond
95 Appellee’s Answer at 32.
96 Appellant’s Br. at 44.
97 26 U.S.C. § 5845(b).
98 The Oxford Dictionary of English Etymology (C.T. Onions ed. 1966).
99 Webster’s Seventh New Collegiate Dictionary 338 (1965). “Ment-” referring to
the various cases of the word in Latin.
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Opinion of the Court
that of the initiation sequence—pulling the trigger—expand beyond the
ambit of the common understanding of “automatically.” It is incorrect to
equate the holding of the trigger in an automatic weapon with the holding of
the trigger and the forward motion in a semi-automatic weapon equipped
with a bump stock. That is because the former is shooting automatically by a
single function of the trigger, while the latter is relying on an additional
human action beyond the mechanical self-acting and impersonal trigger
function.
Many other firing mechanisms have been used to try to “get around” the
statute, whether by inventions that fire not by using a “trigger” or by not
shooting “automatically.” Courts have rejected them and considered them to
be machine guns. For example, in the aforementioned Staples, the Supreme
Court easily held that when a metal stopper in a semi-automatic rifle had
been filed away to allow placement of an automatic firing switch, the weapon
was now able to fire automatically. This was an internal change to the
weapon that transformed it from a semi-automatic rifle into a fully-automatic
machine gun, thus requiring no additional human interaction other than
initiating the trigger function. In Bishop v. United States, 100 a Tenth Circuit
case cited by the Government, a semi-automatic rifle had been mechanically
altered to allow for automatic firing by initiating the trigger function. In
United States v. Oakes, 101 another Tenth Circuit case, a mechanism where a
modified firearm had two “triggers”—where pulling the first trigger automat-
ically pulled the second trigger—was held to be a machine gun because
initiating the trigger function by pulling the first trigger led to automatic
firing without any additional human input. 102 Even firearms without actual
triggers can have a “trigger function” that initiates automatic firing. For
example, a firearm with no actual trigger where the shooter pulls the bolt to
the rear and releases it forward (letting the bolt “go home”) was held by the
Sixth Circuit 103 to be a machine gun. This was because it fired automatically
when the shooter initiated the trigger function by letting the bolt go home.
Initiating a firing sequence with a single human interaction that automati-
cally leads to automatic fire is the hallmark of what makes a machine gun a
machine gun. This is true whether the “trigger” is a spring used to strike a
100 926 F.3d 621 (10th Cir. 2019).
101 564 F.2d 384 (10th Cir. 1977).
102 564 F.2d at 388.
103 United States v. Carter, 465 F.3d 658, 665 (6th Cir. 2006).
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Opinion of the Court
nail serving as the firing pin, 104 or when an aircraft mini-gun uses a button,
rather than a trigger, to fire automatically. 105
One final example that is instructive is from a Fifth Circuit case, United
States v. Camp. 106 Camp had his indictment for possessing a machine gun
dismissed by the district court judge. When the United States appealed, the
Fifth Circuit reversed. Camp had a semi-automatic rifle that had an addi-
tional switch behind the trigger. When the trigger was pulled, the switch
activated a small, electrically-powered fishing reel inside the trigger guard.
This caused the weapon to fire in rapid succession, much like how a semi-
automatic rifle fires when a shooter uses a bump stock. Camp argued this
was a “merely a legal ‘trigger activator.’ ” 107 An ATF agent testified that
trigger activators were considered to be legal by the ATF and “involve using
springs that ‘force the trigger back to the forward position, meaning that you
have to separately pull the trigger each time you want to fire the gun, but it
gives the illusion of functioning as a machine gun.’ ” 108 The agent testified
that the ATF considered trigger activators to be legal “insofar as they do not
transform legal firearms into machine guns.” But Camp’s device was not a
trigger activator, it was an alteration to the weapon that caused it to fire
automatically with a single function of the trigger.
To us, the bump stock possessed by Appellant appears to be a “trigger ac-
tivator,” albeit without the internal spring like the Akins Accelerator. Rather
than an internal spring automatically assisting with firing after the shooter
initiates the trigger function, this requires the shooter to have additional
non-mechanical interaction with the weapon, which is still firing only a single
round per function of the trigger, despite the “illusion of functioning as a
machine gun.” 109
During his testimony on the Defense motion to dismiss for failure to state
an offense, Gunner Whiskey commented that a bump stock is, “in an engi-
neering physical way” a “very clever way to get a semi-automatic weapon . . .
104 United States v. Jokel, 969 F.2d 132, 134-35 (5th Cir. 1992).
105 Fleischli, 305 F.3d at 655.
106 343 F.3d 743 (5th Cir. 2003).
107 Id. at 745.
108 Id. (emphasis in original).
109 Id.28
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Opinion of the Court
to fire as a machine gun.” 110 Perhaps he is right. But until Congress changes
the law, a bump stock like the one possessed by Appellant on a semi-
automatic rifle is not a machine gun under the statutory definition.
5. The rule of lenity
Finally, because we find the statute to be ambiguous, assuming arguendo
our statutory analysis was incorrect and the ambiguity could not be resolved,
we would apply the rule of lenity. We would do so at the “end of the process”
of statutory interpretation, 111 owing to genuine confusion as to what the
statute means, rather than from any “overriding consideration of being
lenient to” Appellant. 112 Appellant had “notice” of the law. We know this
because when Appellant was home on leave, he falsely told a gun store owner
his bump stock had been confiscated. 113 But it is clarity rather than notice
that is the focus of the rule of lenity. Appellant had notice, not that the
statute had changed, but that the ATF’s interpretation of the statute had
changed. Appellant may have even had “notice” that litigation concerning the
meaning of the statute was pending or ongoing on the day he was apprehend-
ed. Notice is irrelevant if the statute that expresses the “moral condemna-
tion” 114 of society is itself unclear. We decline to step into the role of the
legislature when the legislature has not been clear about whether Appellant’s
conduct was criminal. Judge Henry Friendly described the rule of lenity as
“the instinctive distaste against men languishing in prison unless the law-
maker has clearly said they should.” 115 Here, we express that distaste.
110 R. at 62.
111 We discern nothing helpful or noteworthy in reviewing the statute’s “history
and purpose.” See Maracich v. Spears, 570 U.S. 48, 76 (2013). As this Court has
stated before, we are reluctant to consider “legislative history” in statutory interpre-
tation. See, e.g., United States v. Begani, 79 M.J. 767, 781 n.85 (N-M. Ct. Crim. App.
2020), aff’d, ___ M.J. ___, No. 20-0217, 2021 CAAF LEXIS 608 (C.A.A.F., June 24,
2021); In re Gilpin, ___ M.J. ___, No. 201900033, 2021 CCA LEXIS 287, at *12, n.31
(N-M. Ct. Crim. App. June 22, 2021). Even so, we find nothing in the available
legislative history that affects our analysis.
112 Callanan v. United States, 364 U.S. 587, 596 (1961).
113 R. at 214.
114United States v. Bass, 404 U.S. 336, 348 (1971) (“[B]ecause criminal punish-
ment usually represents the moral condemnation of the community, legislatures and
not courts should define criminal activity.”).
115Id. (citing “H. Friendly, Mr. Justice Frankfurter and the Reading of Statutes,
in Benchmarks 196, 209 (1967).”
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6. Conclusion
We conclude that Charge VII, Specification 1, by alleging Appellant’s pos-
session of a bump stock violated the prohibition against possessing a “ma-
chinegun” as defined under 26 U.S.C. § 5845(b), fails to state an offense
punishable under the UCMJ. Accordingly, we determine the finding of guilty
for this offense is not correct in law and fact and must be set aside and the
specification dismissed. We take such action in our decretal paragraph.
C. Portions of the Remaining Sentence are Inappropriate
1. Standard of review and the law
This Court “may affirm only such findings of guilty and the sentence or
such part or amount of the sentence, as it finds correct in law and fact and
determines, on the basis of the entire record, should be approved.” 116 “Sen-
tence appropriateness involves the judicial function of assuring that justice is
done and that the accused gets the punishment he deserves.” 117 This analysis
requires “ ‘individualized consideration’ of the particular accused ‘on the
basis of the nature and seriousness of the offense and the character of the
offender.’ ” 118 Article 66(d)’s “sentence appropriateness provision is a sweep-
ing [c]ongressional mandate to ensure a fair and just punishment for every
accused.” 119 This Court is required to “independently determine . . . the
sentence appropriateness of each case . . . .” 120 While we “review sentence
appropriateness de novo,” 121 we do not have “the ability to grant mercy.” 122
2. Unitary and segmented sentencing
The Military Justice Act of 2016 created many significant changes within
military justice. One of them was to implement the practice of “segmented”
116 Article 66(d), UCMJ.
117 United States v. Healy, 26 M.J. 394, 395 (C.M.A. 1988).
118 United States v. Snelling, 14 M.J. 267, 268 (C.M.A. 1982) (quoting United
States v. Mamaluy, 27 C.M.R. 176, 180–81 (C.M.A. 1959)).
119United States v. Baier, 60 M.J. 382, 384 (C.A.A.F. 2005) (internal quotations
omitted).
120 Id. at 384–85 (internal quotations omitted).
121 United States v. Lane, 64 M.J. 1, 2 (C.A.A.F. 2006).
122 United States v. Nerad, 69 M.J. 138, 146 (C.A.A.F. 2010) (citing United States
v. Boone, 49 M.J. 187, 192 (C.A.A.F. 1998)) (internal quotations omitted).
30
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sentencing. Prior to MJA 16, court members, or a military judge, would
adjudge a “unitary” sentence—a single sentence that expressed the entire
punishment for all findings of guilt. For example, court members or the
military judge could sentence a Marine to confinement for 25 years, forfeiture
of all pay and allowances, reduction to E-1, and a dishonorable discharge for
the crimes of murder and making a false official statement. 123 One would not
know with any real precision how much the false official statement, or for
that matter, the murder, contributed to the sentence. Under MJA 16 proce-
dures involving convictions for multiple offenses, a military judge (but not
court members) adjudges segmented sentences for confinement and fines.
That is, the military judge adjudges confinement and / or a fine for each
separate offense and, in the case of confinement for more than one offense,
determines whether the confinement periods will run concurrently or consec-
utively. 124
Prior to MJA 16, in the instance where one of the findings, but not all,
were set aside, a service court of criminal appeals would sometimes deter-
mine for itself what the appropriate sentence should be. For example, in
Jackson v. Taylor, 125 the Board of Review (as it was called then) set aside
Jackson’s premeditated murder conviction, but affirmed his attempted rape
conviction. Jackson’s life sentence was set aside. His reassessed sentence
included only 20 years of the confinement portion of his sentence.
The guidance from CAAF on whether a service court of criminal appeals
should reassess a sentence or order a rehearing for sentencing is well-
familiar. Under United States v. Winkelmann, 126 CAAF provided “illustrative,
but not dispositive” factors for us to consider: (1) whether there are “dramatic
changes in the penalty landscape and exposure”; (2) whether an appellant
“chose sentencing by members or a military judge alone”; (3) whether the
“nature of the remaining offenses capture the gravamen of criminal miscon-
duct included within the original offenses and, in related manner, whether
significant or aggravating circumstances addressed at the court-martial
remain admissible and relevant to the remaining offenses”; and (4) whether
the “remaining offenses are of the type that judges of the courts of criminal
123United States v. Walker, No. 201100463, 2012 CCA LEXIS 396 at *2 (N-M. Ct.
Crim. App. Sept. 26, 2012) (unpublished).
124 See R.C.M. 1002(d)(2).
125 353 U.S. 569 (1957).
126 73 M.J. 11 (C.A.A.F. 2013).
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Opinion of the Court
appeals have the experience and familiarity with to reliably determine what
sentence would have been imposed at trial.” 127
In reassessing a sentence in a case involving segmented sentencing, we
first set aside the segmented confinement and / or fines adjudged for any
findings we have set aside. Next, we apply the Winckelmann analysis to
reassess the sentence for the remaining offenses we have affirmed. We do this
by considering not only the unitary components of the sentence, such as an
adjudged punitive discharge, but also the segmented sentence components
adjudged for the offenses we have affirmed. MJA 16 did not alter our duty
under Article 66(d), UCMJ, to ensure we affirm only an appropriate sentence,
even if we can readily determine what the trial court intended to adjudge in a
segmented sentence. Having done so in this case, we find the confinement
adjudged for the remaining offenses is inappropriate and take action in our
decretal paragraph.
3. Sentence reassessment of the unitary and segmented sentence
Appellant remains convicted of making false official statements to his
gunnery sergeant and to an Offutt AFB security officer; fraudulently enlist-
ing in the Marine Corps; and possessing machine guns by virtue of possessing
the two switches. The unitary portion of his sentence was total forfeitures,
reduction to E-1, and a bad-conduct discharge. In setting aside and dismiss-
ing the single specification for possessing the bump stock, we do not find
“dramatic changes in the penalty landscape or exposure.” 128 In fact, given
that the only change to the penalty exposure was in the maximum total
confinement for the segmented portion of the sentence, there is no change in
the sentencing landscape or exposure for the unitary sentence. Appellant was
sentenced by a military judge, and the unitary portion of the sentence was
dictated by the terms of the plea agreement. The military judge was required
to adjudge a bad-conduct discharge, total forfeitures, and reduction to E-1.
We also find the gravamen of criminal misconduct is unchanged and the
remaining offenses are generally of the type well-known to the judges of this
Court. Ultimately, with MJA 16 sentence limitations in this particular plea
agreement, we have strong indications of what the unitary portion of the
sentence would have been without the conviction for possessing a bump stock.
We conclude that it would have been unchanged.
127 Id. at 15–16.
128 Wincklemann, 73 M.J. at 15.
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The same holds true for the segmented portion of the sentence. The con-
finement ranges were listed in the plea agreement for each specification.
Because of MJA 16, the unitary and the segmented sentence reassessment for
this case resembles a tower of blocks that remains standing when one block is
removed. We hold that MJA 16’s segmented sentencing obviates the need for
sentence reassessment of confinement or fines imposed by a military judge for
specifications that were not set aside. But there is still the matter of whether
the remaining segmented and unitary sentences are appropriate.
4. Sentence appropriateness analysis for segmented sentences
a. The false official statements and the fraudulent enlistment
We initially address Appellant’s false official statement to his gunnery
sergeant [24 months]; his false official statement to the Offutt AFB security
officer [24 months]; and his fraudulent enlistment [24 months]. We find each
of these segmented sentences to be inappropriate.
Appellant was on his way to the airport in Hawaii to catch a flight to re-
turn home to Nebraska. Appellant’s false official statement to his gunnery
sergeant was predicated on his fear of ultimately missing his flight if he were
forced to return to base and check-out properly. Obviously, Appellant should
not have lied to his gunnery sergeant. But that is not what is at issue here. It
strikes us as self-evident that this scenario does not call for 24 months’
confinement, or anything remotely close to that. 129 We find under these facts
that an appropriate segmented sentence is no more than 30 days’ confine-
ment, consistent with the maximum confinement available to someone of
Appellant’s rank at a summary court-martial. 130
Prior to the search of his vehicle, Appellant lied to the Offutt AFB securi-
ty officer when he told him his truck did not contain any firearms. This is
also obviously behavior meriting punishment. We recognize that lying to law
enforcement about the possibility of encountering weapons or ammunition
during a search enters the realm of officer safety and is not a matter to be
129 We remind military judges, counsel, staff judge advocates, and convening au-
thorities, that despite the changes from MJA 16, military judges are still empowered
to decline to accept terms contained in plea agreements that violate public policy,
appellate case law, or fail to adhere to basic notions of fundamental fairness. See
United States v. Soto, 69 M.J. 304, 307 (C.A.A.F. 2011); United States v. Hall, 26 M.J.
739, 743 (N-M. Ct. Mil. Rev. 1988).
130 R.C.M. 1301(d)(1) (2019).
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Opinion of the Court
taken lightly. Again, that is not what is at issue here. When Appellant was
flagged at the gate by DBIS, he was told to exit his vehicle. He was detained
and then handcuffed. When one of the security officers asked if Appellant had
any weapons in his truck, he initially said “no.” 131 But moments later, and
before AFOSI arrived and anyone had begun to search his vehicle, he re-
quested to use the bathroom and asked the same security officer if they were
“going to take [his] guns.” 132 When the security officer asked if Appellant had
any firearms in his truck, he answered that he had a rifle and a pistol.
Had the authorities conducting the search discovered the weapons and
ammunition before Appellant corrected his earlier false statement, then that
could be a different scenario than the one before us. Appellant lied because he
knew he had the items in his truck and did not want to be caught with them.
At his guilty plea he stated, “I thought if I told them I didn’t have any weap-
ons, he was just gonna like leave my vehicle alone.” 133 But when Appellant
realized that a search was likely to discover the items, he changed his mind.
While this is a more serious matter than the lie concerning the improper
check-out to his gunnery sergeant, and still merits punishment, confinement
for 24 months is still an inappropriate sentence for such behavior. Because
this criminal misconduct strikes us as more appropriate for a special court-
martial, we find that an appropriate segmented sentence is no more than 12
months’ confinement.
We now turn to the fraudulent enlistment. Appellant lied on his enlist-
ment paperwork for entry into the Marine Corps. He lied when he failed to
disclose that he had been arrested, suspended from school, and fired from a
job. When NCIS special agents reviewed Appellant’s Official Military Per-
sonnel File [OMPF], they discovered a handwritten comment from a medical
examiner’s Report of Medical History indicating Appellant had been arrested
when he was 15 years old for resisting arrest and assault on a police officer.
No further information is available in the record about this incident or the
circumstances of his being suspended from school or fired from a job. During
the providence inquiry, Appellant acknowledged he had lied about all three
occurrences and asserted—without challenge from the Government—that
only the juvenile arrest would have required a waiver in order for him to
enlist. Appellant also lied on a different enlistment form when he failed to
131 Def. Ex. A at 2.
132 Id.133 R. at 210.
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Opinion of the Court
disclose that he was rejected by another branch for enlistment. Appellant also
made an unchallenged assertion that this would not have required a waiver.
Fraudulent enlistment is, of course, very serious, and the Navy and Ma-
rine Corps must be able to honestly evaluate those whom it accepts for
enlistment and entry-level training. While it is irrelevant for a guilty finding
that the omission is not about something that is an absolute bar to service, or
would require a waiver 134—or as in the case of three of these four omissions,
not even require a waiver—it is something that should be considered in
arriving at a legally appropriate sentence. Here, Appellant pleaded guilty to a
particularly un-aggravated charge of fraudulent enlistment. Only one of the
omissions (the arrest) even required a waiver, and the information that
Appellant was arrested as a juvenile appeared to have been hiding in plain
sight in his OMPF. Appellant received the maximum punishment authorized
by the statute and the military judge had no discretion in the matter under
the terms of the plea agreement. Much like the false official statement
Appellant made to his gunnery sergeant, we find that an appropriate seg-
mented sentence is no more than 30 days’ confinement.
b. Possession of the switches
We finally turn to the segmented sentence of 36 months’ confinement for
the possession of the two switches. The switches were discovered by law
enforcement agents conducting a consent search of Appellant’s room at his
parent’s home in Nebraska. His father opened the safe where one of the
switches was stored and the other was in a toolbox in the same closet. The
devices were not attached to any weapons. There was no evidence they were
ever used in connection with any type of misconduct.
The range of 24 to 36 months’ confinement was set by the terms of the
plea agreement. During pre-sentencing argument, the Government requested
the maximum confinement of 36 months on this specification, but did not
provide any justification. The trial counsel focused on Appellant’s lack of
integrity for the various false statements he had made, whether in enlisting
or to his gunnery sergeant or to the Offutt AFB security officer.
In presentencing argument, the Defense only addressed a single overall
maximum confinement and requested no more than 24 months. The trial
defense counsel [TDC] referenced Appellant’s tragic childhood circumstances.
Appellant was the son of Iraqi immigrants who “beat, abused, and neglected
134 United States v. Watson, 71 M.J. 54, 58 (C.A.A.F. 2012).
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Opinion of the Court
their children” 135 requiring state intervention to place Appellant in a series of
foster homes, eventually being split-up from his brother and sister. Appel-
lant’s abuse and neglect continued in the “over 30” 136 foster homes in which
he was placed. Appellant’s older brother was murdered with a shotgun.
Eventually, when he was sixteen, Appellant was placed in a home with his
eventual “parents” in Nebraska, and was no longer in abusive situations. He
played sports, worked as a farm hand, and grew to enjoy firearms, prompting
his desire to become a Marine.
In Appellant’s unsworn statement, he briefly touched on some of the ra-
cial bigotry he had experienced in his life, being Iraqi and having a Muslim
sounding last name. 137 Unfortunately, some of that continued after he be-
came a Marine, to include name-calling and once finding raw bacon on his
rack. 138
As evidence, the Defense presented the statement of the Offutt AFB secu-
rity officer, a letter from Appellant’s adoptive mother, numerous photos of
Appellant in childhood and in the Marine Corps, and the series of text mes-
sages between Appellant and the young woman he was going to go meet on
base when he was apprehended. The Government’s exhibits consisted of an
NCIS summary of a statement from a local gun store owner indicating
Appellant knew that bump stocks had been declared illegal; a statement from
the Offutt AFB gate guard who first made contact with Appellant (describing
him as “compliant” 139); the results of the OMPF review by NCIS; documents
concerning his nonjudicial punishment for theft of gear from another Marine
during initial training; the stipulation of fact; and the statement from the
Marine who drove Appellant to the airport that recounts Appellant’s purport-
ed threats against the battalion should he receive “more negative paperwork”
for failing to check out properly. The Government presented real evidence in
the form of various items seized from Appellant: two rifles, a pistol, the bump
stock, a pistol frame and some magazines, and the suspected silencer (that
was actually a toy).
Appellant presented testimony from his sister, a former Marine friend
from Nebraska with whom he served, a close high school friend, and his
135 R. at 315.
136 Def. Ex. B at 2.
137 See R. at 272. Appellant is not actually Muslim.
138 R. at 260.
139 Pros. Ex. 2 at 2.
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Opinion of the Court
mother. The sum of the testimony described Appellant as having a very
troubled childhood, but rising above that to develop a love of the Marine
Corps, and enthusiastically being part of the rural Nebraska “gun culture”
where gun ownership, sport shooting, and hunting are common. There was
limited cross-examination. The Government presented no witnesses.
Finally, Appellant gave an unsworn statement. He explained that he in-
tended to surrender the bump stock the upcoming Monday at the local police
station and had plans to go there to obtain a concealed carry permit. He
placed the bump stock in the lock box in his truck, but law enforcement
seized it three days before he was planning to surrender it. Appellant ex-
plained in great detail how the bump stock was not designed to fit either of
the rifles that were seized. He also recounted his very troubled childhood at
the hands of his own abusive biological parents, various sets of abusive foster
parents, and in different group homes for children without parents. He
explained that his statements to his Marine friend who drove him to the
airport—that were construed as threats—were in jest and were reciprocated.
Appellant expressed remorse, took responsibility, and apologized to the
Marine Corps and his family.
For this segmented portion, or for any part of the sentence, unitary or
segmented, it is appropriate to be able to apply pre-sentencing evidence, from
either party, holistically when evaluating a sentence for appropriateness.
Unless obviously specific to a certain charge or specification, Defense evi-
dence in mitigation is not cabined within a certain portion of the sentence,
whether segmented or unitary. All of the evidence is evaluated and is taken
into consideration for each and every specification as it contributed to either
the segmented portion or the unitary portion of the sentence.
Here, we are also mindful that the plea agreement that arrived at a range
of 24 to 36 months’ confinement for the possession of the switches was also
the same plea agreement that arrived at (1) 24 months for the false official
statement to the gunnery sergeant; (2) 24 months for the false official state-
ment to the Offutt AFB security officer; and (3) 24 months for the fraudulent
enlistment. We found all of these to be inappropriate sentences, and by
significant margins. We do so again with the 36 months’ confinement for the
switches.
The Government never tethered the range of confinement to any ra-
tionale. Ordinarily, in crimes with which judges of this Court have familiari-
ty—borrowing from one of the Winckelman prongs—we can evaluate a legally
appropriate sentence without some sort of guidepost from the Government.
But here, the only spectrum discussed is the maximum punishment, and only
in the context of the military judge verifying with the parties what the
maximum punishment actually was. Initially, the military judge calculated
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Opinion of the Court
ten years’ confinement for each of the Article 134 offenses, but the trial
counsel said that under the “federal sentencing guidelines” 140 the Govern-
ment considered the two specifications [the bump stock and the switches]
“would fall under one max punishment and then be adjusted based on the
number of firearms.” 141 So, under the Government’s rationale, the maximum
confinement for possessing the switches was not ten years, but only five. In
addition, and of some concern, in the plea agreement the maximum statutory
confinement listed for each specification was not ten years, or even under the
Government’s theory, as five years. It was listed as “24-40 months.” 142 When
the military judge inquired about the fact that the “plea agreement indicates
the wrong maximum confinement” 143 TDC replied that he saw no prejudice.
But based on the entire record it is difficult to discern why the 36 months’
confinement is appropriate. We recognize Appellant signed a plea agreement
with an overall range of 24 to 36 months’ confinement and we also recognize
that part of the consideration was the withdrawing and dismissing of other
charges and specifications. But our duty here is to ensure “justice is done and
that the accused gets the punishment he deserves.” 144 We must conduct
“individualized consideration of the particular accused on the basis of the
nature and seriousness of the offense and the character of the offender.” 145
Possession of a machine gun, in this case switches that convert a semi-
automatic pistol into one that shoots automatically, is a felony and an offense
not to be taken lightly. We note that, given the maximum confinement
authorized for the offense [based on the Government’s arguments to the
military judge and her acceptance of those arguments] was five years, and
Appellant received 60 percent of that. But on its face, the Record demon-
strates no reason as to why that was appropriate and the Government made
no arguments in support of such a sentence. After reviewing the entire
record, to include Appellant’s particular character and the non-violent pos-
sessory nature of this offense, we believe, at most, an appropriate segmented
sentence for the possession of the two switches is 24 months’ confinement.
140R. at 219. The trial counsel mentioned the sentencing guidelines, but there
was no further discussion of them from either party or the military judge.
141 Id.
142 App. Ex. X at 7.
143 R. at 224–25.
144 Healy, 26 M.J. at 395.
145 Snelling, 14 M.J. at 268 (internal quotation omitted).
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United States v. Alkazahg, NMCCA No. 202000087
Opinion of the Court
5. Appropriate unitary sentence
We have found the appropriate segmented sentences to be 30 days’ con-
finement for Charge IV, Specification 1 (false official statement to the gun-
nery sergeant); 12 months’ confinement for Charge IV, Specification 2 (false
official statement to the Offutt AFB security officer); 30 days’ confinement for
the sole specification under Charge III (fraudulent enlistment); and 24
months’ confinement for Charge VII, Specification 2 (possession of the
switches). We now review the unitary portion of the sentence for sentence
appropriateness. The unitary sentence consisted of total forfeiture of pay,
reduction to E-1, and a bad-conduct discharge. Again, reviewing this sentence
with the “individualized consideration of the particular accused” based on
“the nature and seriousness of the offense and the character of the offender,”
we find that a unitary punishment consisting of total forfeiture of pay,
reduction to E-1, and a bad-conduct discharge to be appropriate.
6. Appellant’s appropriate sentence
We find it is appropriate that Appellant’s confinement be served concur-
rently. His affirmed sentence is a total of 24 months’ confinement, total
forfeiture of pay, reduction to E-1, and a bad-conduct discharge.
III. CONCLUSION
After careful consideration of the entire record of trial and the briefs and
excellent oral argument from both appellate counsel, we SET ASIDE and
DISMISS Charge VII, Specification 1. All other findings are approved as
correct in law and fact and without error materially prejudicial to Appellant’s
rights. 146 After reassessing the sentence and also determining an appropriate
sentence for the remaining findings, the remaining findings and sentence as
reassessed and determined to be appropriate are AFFIRMED.
Chief Judge MONAHAN and Judge DEERWESTER concur.
146 Articles 59, 66, UCMJ.
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United States v. Alkazahg, NMCCA No. 202000087
Opinion of the Court
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
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