MEMORANDUM & ORDER
Table of Contents
I. Introduction...............................................................439
II. Facts.....................................................................440
A. Crime................................................................440
B. Presentence Report Guideline Calculations................................441
C. Sentencing Hearings...................................................441
III. Sentencing Guidelines......................................................443
A. Pr e-Booker...........................................................443
*439 B. Post>-Booker..........................................................447
C. Correct Calculation of the Guidelines Required............................451
IV. Enhancement for Stolen Gun................................................452
A. Guideline.............................................................452
B. Appellate Review......................................................453
1. Court of Appeals for the Second Circuit...............................453
2. Court of Appeals for the Third Circuit................................454
3. Court of Appeals for the Ninth Circuit................................458
4. Courts of Appeals for the Fourth, Fifth, Sixth, Eighth, Tenth,
Eleventh, and District of Columbia Circuits..........................460
C. Reconsideration Under the Sixth Amendment Line of Cases ................461
1. Developing Sixth Amendment Defendants Protections in Sentencing.....461
2. Loss of Force in Enhancement Precedents............................464
D. Invalidity.............................................................464
1. General Problems in Reviewing the Sentencing Commissions
Determinations..................................................464
a. Administrative Law Framework.................................464
b. Review of Commentary.........................................466
c. Departure from the Guidelines...................................470
2. Commentary to U.S.S.G. 2K2.1(b)(4) Violating Enabling Statute..........470
a. Standard of Review............................................470
b. Enhancement Violates Requirement of Knowledge that Firearm
was Stolen..................................................474
i. Statute Requiring Mens Rea................................474
ii. Historical Importance and Constitutional Requirement of Mens Rea...............................................475
in. Analysis..................................................478
V. Conclusion................................................................480
I. Introduction
The powers of a democratic constitutional government such as ours to punish people must be exercised rationally. Arbitrary and capricious punishment is not acceptable.
See generally Furman v. Georgia,
The problem now posed is: whether the Commentary to the United States Sentencing Guidelines — designed to be followed by sentencing courts — may provide for enhanced punishment of a felon in possession of a stolen handgun if the criminal does not know that it was stolen? The answer is: such a rule, devoid of any mens rea connection, is irrational, is inconsistent with the Constitution and criminal laws of the United States, and is void.
To add many months of incarceration for possession of a gun because the gun was stolen, when the defendant did not and could not know it was stolen, is to punish by lottery. Haphazard chance is not a guiding spirit of our rule of law. Nor is the present method of adopting, reviewing and applying Commentaries such as the one now in question satisfactory as a matter of administrative law. See infra section IV.D.l.b.; of. 28 U.S.C. §§ 2071-2077 (methods of adoption for rules of courts with public and congressional participation).
This court’s present ruling is contrary to courts of appeals decisions in this and other circuits. Nevertheless, in sentencing the Supreme Court has recognized the primacy of the district court’s responsibility. *440 Nisi prius power includes the obligation to declare invalid a Guideline or Sentencing Commission Commentary interpreting the Guideline if it is void for unconstitutionality or if it exceeds the Commission’s power to adopt it.
The federal statute defendant here pled guilty to criminalizes possession of firearms by convicted felons. See 18 U.S.C. § 922(g)(1). The Sentencing Commission mandates a two-level enhancement to the offense level of a defendant charged with this offense if the firearm was stolen. See U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 2K2.1(b)(4). Pursuant to the Guideline Commentary, defendant’s lack of knowledge that the firearm was stolen is irrelevant; strict liability applies. See U.S.S.G. § 2K2.1 cmt. n.8(B).
Sentencing judges must give the same weight to this Commentary as they give to the Guidelines themselves.
See United States v. LaBonte,
In the present case the enhancement Commentary for a stolen gun, not known to have been stolen by defendant, would change the Guidelines range applicable to this defendant from 37 to 46 months to 46 to 57 months. That enhancement represents a 24.3% increase in the bottom and a 23.9% increase in the top end of the applicable Guideline range. Imposition of such an enhancement predicated upon an irrational finding by the Commission would be illegal.
The arbitrary and capricious nature of the Commission’s exclusion of mens rea from its two-level enhancement is particularly egregious since it violates congressional policy. In contrast to the Commission’s rule, an analogous federal statute criminalizes possession of a stolen firearm only if the person knows or has reasonable cause to believe that the firearm was stolen. See 18 U.S.C. § 922(j). The two-level Guidelines enhancement obviously cannot apply to a conviction under this statute. See U.S.S.G. § 2K2.1 cmt. n. 8(A). It applies to this defendant under the Guidelines because, anomalously, he was convicted under another section dealing with possession of a firearm — 18 U.S.C. § 922(g)(1) — that contains no element relating to the thievery of the weapon. Deemed irrelevant under the Commentary is the fact that this defendant did not know and had no reasonable cause to believe that the firearm he possessed was stolen.
The same due process requirement for legislative enactments that conduct without culpable mens rea cannot be criminalized except for minor strict liability crimes, is applicable to the work of the Sentencing Commission. Consistent with fundamental legal tradition that blameworthiness hinges upon a culpable state of mind, the defendant’s Guideline calculation must be predicated upon culpability.
See, e.g., United States v. Polizzi,
II. Facts
A. Crime
On November 30, 2007 when Ramel Handy was twenty years old, having *441 spent the better part of his adolescence in prison, he was observed by two uniformed police officers. See Presentence Report dated Apr. 7, 2008 (“PSR”) ¶2. He and another individual were standing on a pedestrian pathway at a public housing complex in the Brownsville section of Brooklyn. Id. Handy adjusted an object concealed in the rear waistband of his pants. Id. He was approached by the officers and asked for identification. Id. Responding that he had none, he was told that he would be subjected to a “pat-down” search for weapons. Id. He ran from the officers through the housing complex, tossing a loaded pistol onto a grassy area on the sidewalk as he went. Id. He was captured immediately and placed under arrest. Id. ¶¶ 2-3.
In post-arrest statements he admitted that he “took” the gun from an acquaintance earlier in the day. Id. Agents from the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) determined that the firearm, a Hi-Point nine-millimeter semi-automatic pistol, was manufactured outside of New York State and had been reported stolen in Fulton County, Georgia in 2006. Id. ¶ 1 (type of firearm); id. ¶ 4 (place of manufacture); id. ¶ 5 (reported stolen in Georgia).
On February 14, 2008, Handy pled guilty to a single-count indictment charging him with possession of a firearm after having previously been convicted of a felony. See 18 U.S.C. §§ 922(g)(1) and 924(a)(2). As already noted, this statute does not incorporate the element of the firearm having been stolen.
B. Presentence Report Guideline Calculations
The probation department calculated the base offense level at twenty. PSR ¶ 9; see also U.S.S.G. § 2K2.1(a)(4)(A) (calculating the base offense level for unlawful possession of a firearm at 20 if “the defendant committed ... offense subsequent to sustaining one felony conviction of ... a crime of violence ... ”). Over the defendant’s objection, a two-level enhancement was applied because the firearm had been stolen. PSR ¶ 9; Addendum to PSR dated Apr. 25, 2008; see also U.S.S.G. § 2K2.1(b)(4) (“If any firearm (A) was stolen, increase by 2 levels ...”); id. § 2K2.1 cmt. n. 8(B) (the two-level enhancement “applies regardless of whether the defendant knew or had reason to believe that the firearm was stolen.... ”).
C. Sentencing Hearings
At the sentencing hearing defendant objected to the two-level enhancement under U.S.S.G. § 2K2.1(b)(4) on the ground that he did not know and had no reason to know that the gun was stolen:
[I] believe that with the recent revolution in sentencing and the [Sjupreme [CJourt cases, including the recent case about crack cocaine, that it’s clear that this court can make its own decision about whether to apply an enhancement that perhaps was ill-considered by the Guidelines.
My argument is that an enhancement for a circumstance which Mr. Handy had no knowledge about and the government — I think Probation concedes that they have no information that he knew this gun was stolen, and we clearly don’t think he went to Georgia and stole it— that that was an ill-considered enhancement by the [Sentencing] Commission.
It is a crime to possess a stolen firearm but that crime requires knowledge. The [Sentencing] Commission, for whatever reason, they decided not to follow Congresses] view when they wrote a statute that said possessing a stolen firearm is a crime only if you knew or had reason to know it was stolen. Also, I *442 think the [Sentencing] Commission has ignored hundreds of years of common law, which clearly indicated] that knowledge and intent are ... the touchstones of criminal liability.
Transcript of April 30, 2008 Sentencing Hearing (“Tr. Sent. Apr. 30”) at 6-7. Defendant offered as a second ground for objecting to the enhancement, fairness, based on the fact that enhancement for a stolen gun had not entered into guilty plea considerations:
[F]undamental fairness requires that the two level enhancement for a stolen firearm should not be applied to this case. The government entered into a plea agreement with Mr. Handy, in which they anticipated no stolen firearm enhancement. This [e]ourt is required to construe plea agreements strictly against the government and to scrutinize the government’s conduct to ensure that it comports with the highest standard of fairness. In this case, fairness requires that an enhancement unanticipated in the plea agreement cannot be applied, especially when the facts allegedly supporting the enhancement were known to the government when the plea agreement was executed.
Letter dated Apr. 22, 2008 at 3.
Sentencing was adjourned and briefing on the stolen gun enhancement issue was directed by the court. Tr. Sent. Apr. 30 at 9. By letter-brief dated May 23, 2008, the government argued that the two-level enhancement does not violate the.due process clause. See Government’s Letter dated May 23, 2008.
At the May 27, 2008 sentencing hearing, Handy conceded that the firearm had been stolen, but objected to the two-level enhancement because he did not know it was stolen:
The Court: So you are conceding it was a stolen gun?
[Defense Counsel]: That’s correct....
The Court: Now, to his knowledge that it was stolen, are you conceding that he knew it was stolen?
[Defense Counsel]: Absolutely not.
Transcript of May 27, 2008 Sentencing Hearing at 10-11. After opportunity was given to the parties to provide evidence of whether Handy knew that the firearm was stolen, the court found — and the government conceded — that the defendant did not know that the firearm was stolen when he initially obtained it or while it was in his possession:
The Court: Do you want to put on any evidence of the fact that he didn’t know that it was stolen?
[Defense Counsel]: I will ask Mr. Handy.
The Court: He’s under oath....
[Defense Counsel]: Mr. Handy, when you came in possession of this gun, how long before you were arrested did you receive the gun?
The Defendant: Couple of hours.
[Defense Counsel]: ... And when you had the gun in your possession, did you know it had been stolen previously?
The Defendant: No.
[Defense Counsel]: And had you stolen it from anyone previously?
The Defendant: No.
The Court: [Government, do y]ou want to inquire?
[Government]: No.
The Court: ... I find as a matter of fact that [the] gun was stolen. That it then moved in interstate commerce. That it was obtained by the defendant, but that he did not know it was stolen when he obtained it, or while it was in his possession. Correct?
[Government]: Yes.
*443 [Defense Counsel]: Yes.
The Court: I find all of that by a preponderance of the evidence.
Id. at 11-12.
III. Sentencing Guidelines
A. Pre-Booker
In 1984, Congress passed the Sentencing Reform Act and created the United States Sentencing Commission to help deal with uncertainties and disparities in the federal criminal justice system. See Sentencing Reform Act of 1984, Pub.L. No. 98-^473, 98 Stat. 1987 (1984) (codified as amended at 18 U.S.C. §§ 3551-3742, 28 U.S.C. §§ 991-98); see also, e.g., S.Rep. No. 98-225, at 49, U.S.Code Cong, and Admin .News 1984, pp. 3182, 3232 (“[T]he present practices of the federal courts and of the parole commission clearly indicate that sentencing in the federal courts is characterized by unwarranted disparity and by uncertainty about the length of time offenders will service in prison.”); Kenneth R. Feinberg, Federal Criminal Sentencing Reform: Congress and the United States Sentencing Commission, 28 Wake Forest L.Rev. 291, 295 (1993) (“The first and foremost goal of the sentencing reform effort was to alleviate the perceived problem of federal criminal sentencing disparity.”); Marvin E. Frankel & Leonard Orland, Sentencing Commissions and Guidelines, 73 Geo. L.J. 225, 247 (1984).
Section 991 of title 28 of the United States Code established the Sentencing Commission and set forth its purpose “as an independent commission in the judicial branch of the United States.” 28 U.S.C. § 991(a). The Commission was charged with the following purposes:
(1) establish sentencing policies and practices for the Federal criminal justice system that—
(A)assure the meeting of the purposes of sentencing as set forth in section 3553(a)(2) of title 18, United States Code;
(B) provide certainty and fairness in meeting the purposes of sentencing, avoiding unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar criminal conduct while maintaining sufficient flexibility to permit individualized sentences when warranted by mitigating or aggravating factors not taken into account in the establishment of general sentencing practices; and
(C) reflect, to the extent practicable, advancement in knowledge of human behavior as it relates to the criminal justice process; and
(2) develop means of measuring the degree to which the sentencing, penal, and correctional practices are effective in meeting the purposes of sentencing as set forth in section 3553(a)(2) of title 18, United States Code.
28 U.S.C. § 991(b).
The four main goals of the Commission were: “to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense”; “to afford adequate deterrence to criminal conduct”; “to protect the public from further crimes of the defendant”; and “to provide the defendant with needed ... correctional treatment.” 18 U.S.C. § 3553(a)(2).
Section 994 of title 18 sets out the specific duties of the Commission and directs it to formulate Sentencing Guidelines and general Policy Statements “consistent with all pertinent provisions of any Federal statute.” 28 U.S.C. § 994(a) (emphasis added); see also infra section IV.D.2.b.i. The Commission is obligated to “review and revise” Sentencing Guidelines periodically, 28 U.S.C. § 994(o), to “consult with *444 authorities on ... various aspects of the Federal criminal justice system,” id., to make recommendations to Congress on whether the grades or maximum penalties should be modified, id. § 994(r), to submit to Congress an analysis of the operation of the Guidelines, id. § 994(w), and to issue “general policy statements” regarding their application, id. § 994(a)(2).
Parallel with the Commission’s duties to consider “the need for the sentence imposed” to achieve the general purposes of sentencing under 18 U.S.C. § 3553(a)(2), see 28 U.S.C. § 991(b)(1)(A), sentencing courts were mandated to consider seven factors when imposing a sentence. 18 U.S.C. § 3553(a). First, is a broad command to consider the “nature and circumstances of the offense and the history and characteristics of the defendant.” 18 U.S.C. § 3553(a)(1). Second, is “the need for the sentence imposed.” 18 U.S.C. § 3553(a)(2). Third pertains to “the kinds of sentences available.” 18 U.S.C. § 3553(a)(3). Fourth, is the requirement to utilize the Sentencing Guidelines. 18 U.S.C. § 3553(a)(4). Fifth, is the injunction to follow the relevant Policy Statements issued by the Sentencing Commission. 18 U.S.C. § 3553(a)(5). Sixth is to the “need to avoid unwarranted sentence disparities.” 18 U.S.C. § 3553(a)(6). Seventh is “the need to provide restitution to any victim.” 18 U.S.C. § 3553(a)(7). Preceding this list is a general directive to the sentencing court to “impose a sentence sufficient, but not greater than necessary to comply with the purposes” of sentencing. 18 U.S.C. § 3553(a).
Section 3553(a) of title 18 is the courts’ basic guide. It reads:
(a) Factors to be considered in imposing a sentence. — The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. The court, in determining the particular sentence to be imposed, shall consider—
(1) the nature and circumstances of the offense and the history and characteristics of the defendant;
(2) the need for the sentence imposed—
(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established for—
(A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines—
(i) issued by the Sentencing Commission pursuant to section 994(a)(1) of title 28, United States Code, subject to any amendments made to such guidelines by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28); ...
(5) any pertinent policy statement [issued by the Sentencing Commission]
(6) the need to avoid unwarranted sentence disparities among defendants *445 with similar records who have been found guilty of similar conduct; and
(7) the need to provide restitution to any victims of the offense.
18 U.S.C. § 3558(a) (emphasis added).
In devising the Guidelines, the Commission sought to meet the practical problems in developing a coherent sentencing system, partly by ignoring sentencing theory, policy and the history of sentencing in the United States. See U.S.S.G. § 1A1.1 (“The Basic Approach”). Cf. Christopher Wimmer et al., Sentencing in the United States, in Re-entry Planning for Offenders with Mental Disorders: Policy and Practice (Henry A. Dlugacz, ed., forthcoming 2009). The Commission took “an empirical approach that used as its starting point data estimating pre-guidelines sentencing practice.” See U.S.S.G. § 1A1.1. It explained that this:
[E]mpirical approach ... helped resolve its philosophical dilemma. Those who adhere to a just deserts philosophy may concede that the lack of consensus might make it difficult to say exactly what punishment is deserved for a particular crime. Likewise, those who subscribe to a philosophy of crime control may acknowledge that the lack of sufficient data might make it difficult to determine exactly the punishment that will best prevent that crime. Both groups might therefore recognize the wisdom of looking to those distinctions that judges and legislators have, in fact, made over the course of time. These established distinctions are ones that the community believes, or has found over time, to be important from either a just deserts or crime control perspective.
Id.
In calculating a Guidelines sentence, a sentencing judge would find it difficult to take account of all the section 3553(a)(2) factors. See generally Kevin Cole, The Em/pty Idea of Sentencing Disparity, 91 Nw. U.L.Rev. 1336, 1336-37 (1997). The Sentencing Commission failed to develop a method by which all section 3553(a)(2) factors should be combined in application.
A philosophical problem arose when the Commission attempted to reconcile the differing perceptions of the purposes of criminal punishment. Most observers of the criminal law agree that the ultimate aim of the law itself, and of punishment in particular, is the control of crime. Beyond this point, however, the consensus seems to break down. Some argue that appropriate punishment should be defined primarily on the basis of the moral principle of ‘just deserts.’ ... Others argue that punishment should be imposed primarily on the basis of practical ‘crime control’ considerations ....
Adherents of these points of view have urged the Commission to choose between them, to accord one primacy over the other. Such a choice would be profoundly difficult. The relevant literature is vast, the arguments deep, and each point of view has much to be said in its favor. A clear-cut Commission decision in favor of one of these approaches would diminish the chance that the guidelines would find the widespread acceptance they need for effective implementation.
U.S.S.G. § 1A1.1, pt. A(3) (“The Basic Approach”);
see also United States v. Blake,
*446 Despite these policy-oriented departures from present practice, the guidelines represent an approach that begins with, and builds upon, empirical data. The guidelines will not please those who wish the Commission to adopt a single philosophical theory and then work deductively to establish a simple and perfect set of categorizations and distinctions .... After spending considerable time and resources exploring alternative approaches, the Commission has developed these guidelines as a practical effort toward the achievement of a more honest, uniform, equitable, and therefore effective, sentencing system.
U.S.S.G. § 1A1.1, pt. A(3); see also Marvin E. Frankel, Sentencing Guidelines: A Need for a Creative Collaboration, 101 Yale L.J.2043, 2047 (1992) (“The Commissioners took up the direction to look at prior average sentences ‘as a starting point,’ but not to be bound by them. That meant starting with a tradition of criminal sanctions that ranks next to the American states as the harshest in the Western world. Then, instead of mitigating, as I think a rational and courageous stance should have dictated under the power to formulate guidelines ‘consistent with the purposes of sentencing described in section 3553(a)(2) of title 18,’ the Commission produced guidelines that actually increase the overall severity ... ”) (footnotes omitted).
A departure from the Guidelines was permitted only if the sentencing court “finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.” 18 U.S.C. § 3553(b);
Koon v. United States,
Congressional delegation of authority to the Commission survived delegation of power and separation of powers challenges.
See Mistretta v. United States,
In light of our approval of ... broad delegations, we harbor no doubt that Congress’ delegation of authority to the Sentencing Commission is sufficiently specific and detailed to meet constitutional requirements. Congress charged the Commission with three goals: to “assure the meeting of the purposes of sentencing as set forth” in the Act; to “provide certainty and fairness in meeting the purposes of sentencing, avoiding unwarranted sentencing disparities among defendants with similar records [ ] while maintaining sufficient flexibility to permit individualized sentences,” where appropriate; and to “reflect, to the extent practicable, advancement in knowledge of human behavior as it relates to the criminal justice process.” 28 U.S.C. § 991(b)(1). Congress further specified four “purposes” of sentencing that the Commission must pursue in carrying out its mandate: “to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense”; “to afford adequate deterrence to criminal conduct”; “to protect the public from further crimes of the defendant”; and “to provide the defendant with needed [] correctional treatment.” 18 U.S.C. § 3553(a)(2).
Id.
at 374,
Although the unique composition and responsibilities of the Sentencing Commission give rise to serious concerns about a disruption of the appropriate balance of governmental power among the coordinate Branches, we conclude, upon close inspection, that petitioner’s fears for the fundamental structural protections of the Constitution prove, at least in this case, to be “more smoke than fire,” and do not compel us to invalidate Congress’ considered scheme for resolving the seemingly intractable dilemma of excessive disparity in criminal sentencing.
Id.
at 384,
The Guidelines dramatically altered sentencing in federal courts.
See Bums v. United States,
B. Post-Booker
In
United States v. Booker,
the Supreme Court held that the Sentencing Guidelines violated the Sixth Amendment which requires that facts under a Guideline enhancing a defendant’s sentence be proven to a
*448
jury beyond a reasonable doubt.
We answer the question of remedy by finding the provision of the federal sentencing statute that makes the Guidelines mandatory incompatible with today’s constitutional holding. We conclude that this provision must be severed and excised, as must one other statutory section which depends upon the Guidelines’ mandatory nature. So modified, the federal sentencing statute makes the Guidelines effectively advisory. It requires a sentencing court to consider Guidelines ranges, but it permits the court to tailor the sentence in light of other statutory concerns as well.
Id.
at 246,
Also severed and excised was the provision of the statute requiring
de novo
review of departures from the Guidelines, 18 U.S.C. § 3742(3), because that provision depended on the mandatory nature of the Guidelines.
Booker,
Courts of appeals at first held that although the Guidelines were now advisory, district courts could not substitute their own judgment of policy for the Sentencing Commission’s.
See e.g., United States v. Castillo,
In three
post-Booker
decisions,
Rita v. United States,
— U.S. -,
Congressional delegation of authority to the Commission and the role of the sentencing judge as envisioned by Congress are complementary:
... [T]he presumption reflects the nature of the Guidelines-writing task that Congress set for the Commission and the manner in which the Commission carried out that task. In instructing both the sentencing judge and the Commission what to do, Congress referred to the basic sentencing objectives that the statute sets forth in 18 U.S.C. § 3553(a)____ That provision tells the sentencing judge to consider (1) offense and offender characteristics; (2) the need for a sentence to reflect the basic aims of sentencing, namely (a) “just punishment” (retribution), (b) deterrence, (c) incapacitation, (d) rehabilitation; (3) the sentences legally available; (4) the Sentencing Guidelines; (5) Sentencing Commission policy statements; (6) the need to avoid unwarranted disparities; and (7) the need for restitution. The provision also tells the sentencing judge to “impose a sentence sufficient, but not greater than necessary, to comply with” the basic aims of sentencing as set out above.
Congressional statutes then tell the Commission to write Guidelines that will carry out these same § 3553(a) objectives. Thus, 28 U.S.C. § 991(b) indicates that one of the Commission’s basic objectives is to “assure the meeting of the purposes of sentencing as set forth in [§ 3553(a)(2) ].” The provision adds that the Commission must seek to “provide certainty and fairness” in sentencing, to “avoi[d] unwarranted sentencing disparities,” to “maintai[n] sufficient flexibility to permit individualized sentences when warranted by mitigating or aggravating factors not taken into account in the establishment of general sentencing practices,” and to “reflect, to the extent practicable [sentencing-relevant] advancement in [the] knowledge of human behavior.” Later provisions specifically instruct the Commission to write the Guidelines with reference to this statement of purposes, the statement that itself refers to § 3553(a). See 28 U.S.C. §§ 994(f), and 994(m).
The upshot is that the sentencing statutes envision both the sentencing judge and the Commission as carrying out the same basic § 3553(a) objectives, the one, at retail, the other at wholesale.
Id. at 2463 (emphasis in original). The judge in exercising discretion may not ignore the Guidelines.
In
Gall,
the Court held that although the difference between a sentence imposed by the judge and that recommended by the Guidelines is not decisive, courts of appeals must review all sentences for reasonableness.
Gall,
As we explained in Rita, a district court should begin all sentencing proceedings by correctly calculating the applicable Guidelines range. As a matter of administration and to secure nationwide consistency, the Guidelines *450 should be the starting point and the initial benchmark. The Guidelines are not the only consideration, however. Accordingly, after giving both parties an opportunity to argue for whatever sentence they deem appropriate, the district judge should then consider all of the § 3553(a) factors to determine whether they support the sentence requested by a party. In so doing, he may not presume that the Guidelines range is reasonable. He must make an individualized assessment based on the facts presented....
Id. at 596-97 (emphasis added).
In
Kimbrough,
the Court held that courts of appeals cannot apply a presumption that a sentence outside the Guideline range is per se unreasonable when it is based upon a sentencing judge’s policy disagreement with the Commission’s “crack-cocaine” Guidelines.
Kimbrough,
The district court in Kimbrough disagreed with the Commission’s findings: “Concluding that the crack cocaine Guidelines drove the offense level to a point higher than is necessary to do justice in this case, the District Court thus rested its sentence on appropriate considerations ...” Id. at 575-76 (citations and quotation marks omitted). The Supreme Court affirmed the district court’s sentence even though the sentencing judge disagreed with the Commission’s policy. But it reaffirmed the Guidelines’ vitality in controlling a sentence:
We have accordingly recognized that, in the ordinary case, the Commission’s recommendation of a sentencing range will reflect a rough approximation of sentences that might achieve § 3553(a)’s objectives. The sentencing judge, on the other hand, has greater familiarity with the individual case and the individual defendant before him than the Commission or the appeals court. He is therefore in a superior position to find facts and judge their import under § 3353(a) in each particular case. In light of these discrete institutional strengths, a district court’s decision to vary from the advisory Guidelines may attract greatest respect when the sentencing judge finds a particular case outside the heartland to which the Commission intends individual Guidelines to apply. On the other hand, while the Guidelines are no longer binding, closer review may be in order when the sentencing judge varies from the Guidelines based solely on the judge’s view that the Guidelines range fails properly to reflect § 3553(a) considerations even in a mine-run case.
*451 Id. at 575-76 (citations and quotation marks omitted; emphasis added).
A recent decision of the Court of Appeals for the Second Circuit described
Kimbrough’s
impact as a “sea change” in sentencing jurisprudence.
See United States v. Jones,
C. Correct Calculation of the Guidelines Required
Although the Sentencing Guidelines are now advisory, the defendant and government retain a right to their correct calculation.
See Gall,
Recent data from the Sentencing Commission indicates that the Guidelines still largely determine sentences imposed. Nearly 60% of the roughly 26,000 defendants sentenced after Kimbrough received a sentence within the Guideline range. See U.S. Sentencing Commission, Prelimi *452 nary Post-Kimbrough/Gall Data Report, tbl. 1 (July 2008) (hereinafter, “Post-ifim brough/Gall Data”), http://www.ussc.gov/ USSC_Kimbrough_GalLReport_July_08_ Final.pdf. For about 25% of these below-Guideline range sentences, the court was authorized by the government to depart, largely in light of substantial assistance by the defendant, see U.S.S.G. § 5K1.1, or an early disposition program departure. See U.S.S.G. § 5K3.1. See Post-Kimbrough/Gall Data, tbl. 1. Only 13.6% of defendants received a below-Guideline sentence without the government’s authorization: in 3.3% of cases, the court departed from the Guidelines and in 10.3% of cases, the court gave a non-Guideline variance under Booker. Id.
It is apparent that the two-level enhancement for the fact that a gun was stolen, required by the Sentencing Commission, cannot be ignored if it is valid. The power to circumvent granted by 18 U.S.C. § 3553(a) is not an excuse to disregard.
IV. Enhancement for Stolen Gun
A. Guideline
For defendants convicted under 18 U.S.C. § 922(g)(1) (felon-in-possession of a firearm), section 2K2.1(b)(4) of the Sentencing Guidelines mandates a two-level enhancement to the offense level if the firearm was stolen.
See
U.S.S.G. § 2K2.1(b)(4) (“If any firearm (A) was stolen, increase by 2 levels ... ”). Subsection (B) of the application note, which falls under the category of “Commentary,” explicitly states that the two-level enhancement “applies
regardless of whether the defendant knew or had reason to believe that the firearm was stolen
...”
Id.
§ 2K2.1 cmt. n. 8(B) (emphasis added). No policy reason or rationale for requiring a two-level increase in the offense level— even when the defendant believed that the firearm was not stolen — is provided. The Commentary is as binding as a Guideline.
Stinson v. United States,
Another application note provides that the two-level enhancement does not apply if the defendant is specifically charged with an offense involving a stolen firearm, see, e.g., 18 U.S.C. § 922®. See U.S.S.G. § 2K2.1 cmt. n. 8(A). “This is because the base offense level [for that crime of possessing a stolen firearm] takes into account that the firearm ... was stolen.” U.S.S.G. § 2K2.1 cmt. n. 8(A). The defendant in the instant case was not charged with this section 922® offense or any offense involving stolen firearms.
An earlier version of U.S.S.G. § lB1.3(a)(4), titled “Relevant Conduct (Factors that Determine the Guideline Range)”, provided that “specific offense characteristics ... shall be determined on the basis of ... the defendant’s state of mind, intent, motive and purpose in committing the offense.”
See United States v. Taylor,
As pointed out by the Court of Appeals for the Third Circuit, U.S.S.G. § 2K2.1 and related provisions have been amended several times, resulting in the elimination of any mens rea requirement.
The earlier version of § 2K2.1(b)(l) read “if the firearm was stolen or had an altered or obliterated serial number, in *453 crease by 1 level.” The Commission renumbered and amended this section to increase the level to 2. U.S.S.G. § 2K2.1(b)(2). And the earlier versions of § 2K2.2(b)(l) and § 2K2.3(b)(2)(c) read respectively “If the firearm was stolen or had an altered or obliterated serial number, increase by 1” and “If the defendant knew or had reason to believe that a firearm was stolen or had an altered or obliterated serial number, increase by 1.” (Emphasis added). The Commission consolidated these sections into new § 2K2.2(b)(2), which now reads “If the firearm was stolen or had an altered or obliterated serial number, increase by 2 levels.” In amending these sections, the Commission also added new § 2K2.3, “Receiving, Transporting, Shipping or Transferring a Firearm or Ammunition With Intent to Commit Another Offense, or With Knowledge that It Will be Used in Committing Another Crime.” The Commission intended this section to “address transfer of a weapon with intent or knowledge that it will be used to commit another offense.” U.S.S.G., App. C, at C. 97 (emphasis added).
United States v. Mobley,
B. Appellate Review
1. Court of Appeals for the Second Circuit
In a
pre-Booker
opinion, the Court of Appeals for the Second Circuit held that an earlier version of U.S.S.G. § 2K2.1(b)(4) did not contain a scienter requirement.
United States v. Litchfield,
In a subsequent opinion, the Court of Appeals for the Second Circuit did reach the constitutional issue and found that the two-level enhancement does not violate the due process clause of the Fifth Amendment.
See United States v. Griffiths,
Even though the Sentencing Commission did not provide any rationale for the *454 enhancement, the Court of Appeals for the Second Circuit suggested one post hoc by finding it reasonable to place on the acquirer of a firearm the burden of establishing that it was not stolen:
The government reasonably may determine that stolen firearms often end up in the hands of criminals, thus warranting a rule that imposes on the recipient of a firearm the burden of ensuring that the firearm is not stolen. In addition, the enhancement, which traditionally has been considered by sentencing courts, does not create a separate substantive offense calling for a separate penalty.
Griffiths,
As to the contention that the enhancement is constitutionally impermissible for an offense that is not a minor crime of strict liability, the Court of Appeals for the Second Circuit held that U.S.S.G. § 2K2.1(b)(4) is a strict liability “enhancement,” not a strict liability “crime,” and that “the government has a legitimate interest in punishing possession of a stolen firearm and placing the burden upon one who receives a firearm to ensure that the possession is lawful.”
Id.
at 845 (citing
Mobley,
Litchfield
and
Griffiths
were pr
e-Booker
decisions. They were decided before the “sea change” in sentencing, as described
supra,
in
Jones
by the Court of Appeals for the Second Circuit. That court has not addressed the enhancement for a stolen gun since the Supreme Court’s decision in
Booker,
2. Court of Appeals for the Third Circuit
The pr
e-Booker
opinions of the courts of appeals for the Third Circuit in
Mobley,
Section 922(g) is part of the Gun Control Act of 1968.... It is not just a statute criminalizing possession of a firearm by convicted felons; it is part of a comprehensive scheme to regulate the movement of firearms.... Thus § 922(g) has a regulatory role.
Moreover, the penalty it imposes, including U.S.S.G. § 2K2.1(b)(2), advances this role. Altered firearms, for example sawed-off shotguns, “have few legitimate *455 uses,” U.S.S.G. § 2K2.1, commentary, and have most probably been altered to conceal or magnify their deadly potential. Also the trade in guns is monitored for a reason. Registration and verification procedures are imposed largely to combat crime. It is no secret that a chain of custody for a firearm greatly assists in the difficult process of solving crimes. When a firearm is stolen, determining this chain is difficult and when serial numbers are obliterated, it is virtually impossible. Therefore, stolen or altered firearms in the hands of people recognized as irresponsible pose great dangers, and the guideline here reflects this heightened danger.
An examination of 18 U.S.C. § 922(g), § 922©, § 922© and U.S.S.G. § 2K2.1(b)(2) shows how Congress and the Commission regulate the trade in stolen or altered firearms. Together § 922(i) and § 922(j) provide that any person who “transport^” or “receive[s] ... any stolen firearm or stolen ammunition, knowing or having reasonable cause to believe” it stolen is culpable. In these sections Congress recognized the inherent evil in stolen guns and sought to regulate them. Section 922(g) targets a specific class of individuals— convicted felons. It provides that they shall not possess any firearm, regardless of the status of the firearm. So, for instance, if a convicted felon went into a sporting store, bought a shotgun to hunt, and signed all the necessary registration and verification forms, he would still be culpable. And if he obtained such a weapon from a drug dealer in some back street, it is reasonable that he would be more culpable.
Thus § 2K2.1(b)(2) advances the overall regulatory scheme. Without empirical evidence, it is safe to say that stolen or pirated guns move in the back alleys and among clandestine meetings of the criminal world. Indeed Mobley admitted that he got his gun from a drug dealer named “Keith” in Columbia, South Carolina. A handgun is the consummate anti-personnel weapon. It is designed to be used against people. It defies reason to believe that there was anything benign in a convicted felon carrying a stolen handgun. Section 2K2.1(b)(2) regulates by punishing and potentially deterring such irregular and pernicious transactions; it rests on the theory that one would hardly be surprised to learn that possession of a gun bought from a drug dealer is not an innocent act....
Id. at 453-54 (some citations, quotation marks and footnote omitted; emphasis added). The court disregarded section 922’s specific directives requiring knowledge of a firearm’s characteristics (e.g. whether it was stolen) before penalizing the defendant. See infra section IV.D.2.b.
The Commission’s basis for the two-level enhancement, as manifested by the Commentary to an earlier version of U.S.S.G. § 2K2.1, was that defendants in possession of stolen firearms tended to receive harsher sentences pre-Guidelines and that stolen firearms are used disproportionately in crimes. This justification is hardly persuasive since the proof in some cases with harsher sentences may have established that the defendant stole it himself or knew it was stolen.
The Court of Appeals in Mobley added its own rationale:
The Commission decided that possessing a stolen gun is a greater evil than possessing one legally purchased. Indeed, the inherent dangers associated with a convicted felon purchasing and owning a gun “makes it reasonable to impute knowledge to the defendant that his conduct was subject to legal restriction.” *456 One, especially a convicted felon, is thus expected to exercise caution in the purchase of firearms and to inquire as to the gun’s origin. One can check easily whether or not a gun has been stolen, and the failure to do so reasonably may add to the purchaser’s punishment. The government need not prove that the purchaser possessed actual knowledge of the gun’s stolen status to generate the inference for the purpose of sentencing that a buyer of a stolen gun is more culpable than the buyer of a legitimate one. The “backstreet” buyer who contributes financially to a thief s enterprise purchases under conditions which reasonably should alert him to check the gun’s legitimacy. We fail to see the constitutional infirmity in discouraging illegal traffic in guns by enhancing the sentence of a convicted felon for possessing a stolen gun.
Id. at 456 (citations omitted) (emphasis added). The assumption in Mobley that a criminal purchasing a gun out of the trunk of a car in Brooklyn could “easily” determine whether the gun was obtained by the seller as a result of a straw sale in Georgia or a theft in some other state does not accord with practice in the illegal gun market. See infra section IY.D.2.b.iii. (discussing unlawful practices of gun retailers related to stolen firearms).
The
Mobley
court found unconvincing defendant’s argument that the enhancement violates the due process clause of the Fifth Amendment by in effect creating a new statute lacking a requirement of scienter and punishing for conduct for which the defendant has not been found guilty.
Id.
at 454-55. It reasoned that the enhancement does not alter the maximum penalty available for the crime, negate the presumption of innocence or relieve the government of its burden of proving guilt, or create a separate offense calling for a separate penalty.
Mobley,
[Defendant] confuses the fundamental distinction between conviction and sentencing. Moreover he confuses the distinction among a sentence, a sentence enhancement, and the definition of a crime. In our bifurcated criminal justice process, at the trial stage the accused receives the full panoply of constitutional rights. So for example, the government must prove “beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” At the sentencing stage, however, a convicted criminal is entitled to less process than a presumptively innocent accused. Sentencing courts have always operated without constitutionally imposed burdens of proof when considering the appropriate sentence.
Mobley,
Dissenting in
Mobley,
one judge analyzed the constitutional consequences of allowing the prosecution to either indict a defendant for possession of a stolen firearm (which would require proof that the defendant knew that the gun was stolen,
see
18 U.S.C. § 922(j)), or if it could not satisfy that burden, to seek the same punishment under the Guidelines,
see
U.S.S.G. § 2K2.1(b)(4).
See Mobley,
The majority reasons that guideline § 2K2.1(b)(2) rationally furthers the purposes of the 1968 Gun Control Act, positing that the Act is part of a comprehensive scheme to regulate the movement of firearms and guideline § 2K2.1(b)(2) “advances the overall regulatory scheme” because it “regulates” transactions in stolen firearms, which are more likely to be used in criminal activity. While I agree with the majority’s assertion that the guideline enhancement at issue here was promulgated to address regulatory concerns, see, e.g., U.S.S.G. § 2K2.1, comment, (backg’d.) (“[ijndependent studies show that stolen firearms are used disproportionately in the commission of crimes”), I do not find guideline § 2K2.1(b)(2), insofar as it purports to be a strict liability enhancement, to be rationally related to a legislative purpose because the Gun Control Act evidences another explicit legislative purpose. As the government admits, to convict Mobley for a stolen firearm charge, it would have had to prove that Mobley “[knew] or [had] reasonable cause to believe that the firearm ... was stolen.” 18 U.S.C. § 922(i) or CD-
I depart from the majority, however, because it has mismatched portions of the Gun Control Act with guideline § 2K2.1(b)(2). The pertinent match is highlighted by the government’s choice; thus we should evaluate Mobley’s constitutional claim against the conflict between the scienter element of the stolen firearms crimes and the lack of a scienter element in a stolen firearm guideline enhancement of § 2K2.1(b)(2), where both yield the same penalty.
Id. at 462-63 (some citations omitted); see also id. at 463 (“Where, as here, Congress has spoken more directly to an issue, we should hesitate to invoke general legislative statements in support of a guideline that so clearly controverts a more explicit legislative intention.”); id. at 465 (“Where Congress has chosen to require scienter for proof of a crime, I am not persuaded that Congress’ designee, the Sentencing Commission, may transform that same conduct, minus scienter, into a sentencing factor, which when applied yields an equivalent sentence range as would an additional conviction.”).
After
Booker,
the Court of Appeals for the Third Circuit re-examined its holding in
Mobley. See United States v. Rouse,
226 FedAppx. 97, 99 (3d Cir.2007). The defendant in
Rouse
argued that the two-level enhancement violates
Apprendi v. New Jersey,
[T]he portion of Apprendi to which Rouse cites is merely a description of the historical fact that there was no distinction between a sentencing enhancement and an element of a crime at the time of our Nation’s founding. Nothing in Apprendi eliminates the ability of a sentencing judge to consider facts not included in the indictment when imposing a sentence, so long as that sentence is at or below the statutory maximum.
The same is true for Booker. Booker held that the Guidelines, which were *458 mandatory as written, violated the Sixth Amendment as they allowed the judge to increase a defendant’s sentence beyond the maximum sentence laid out by statute. Therefore, the Supreme Court excised the portions of the Sentencing Reform Act that made the Guidelines mandatory, resulting in an advisory Guidelines system that is but one factor a judge should consider when imposing sentence. While this decision reinforced the importance of the jury’s role in criminal convictions and sentencing determinations, it did not eliminate the distinction between sentencing factors and the elements of a crime. Rather, post-Booker, when calculating a defendant’s advisory Guidelines range, a district court is to follow the Guidelines just as it had done pr e-Booker. We have repeatedly stated that in doing so, district courts should continue to consider our pr e-Booker case law.
Id. (citations omitted). The court held that Apprendi and Booker did not undermine its holding in Mobley and that the enhancement is constitutional. Id. at 99-100.
3. Court of Appeals for the Ninth Circuit
In
Goodell,
contrary to the instant case, defendant’s plea agreement specified that the weapon was stolen.
Goodell,
The strict liability enhancement for possession of a stolen firearm is rationally related to the legitimate governmental goal of crime prevention: § 2K2.1(b)(2) was promulgated on the premise that “stolen firearms are used disproportionately in the commission of crimes.” Mobley,956 F.2d at 454 , citing, U.S.S.G. § 2K2.1(b)(2), comment. Further, an ex-felon who obtains a stolen firearm is more culpable than one who legally obtains a firearm. Mobley,956 F.2d at 454 . See also Schnell,982 F.2d at 221 (“[T]he Sentencing Commission’s decision to place upon a felon the burden of inquiring into the condition of any weapon that he unlawfully obtains was not inconsistent with the manifestations of Congressional intent contained in §§ 922(g) or 922(k).”). The omission of a mens rea requirement for the stolen gun sentencing enhancement under § 2K2.1(b)(2) does not violate due process.
Id. at 499.
Goodell
found that the enhancement did not violate the due process clause standard in
McMillan v. Pennsylvania,
The Sentencing Guidelines’ enhancement for a stolen weapon ... did not present [the defendant] with a “radically different situation” at sentencing; the two point enhancement raised [defendant’s] sentencing range from 8-14 months to 12-18 months. Further, a *459 stolen firearm “tended to result in more severe sentences” in pre-guideline cases. U.S.S.G. § 2K2.2, comment, (backg’d.) .... [T]he enhancement here “simply took one factor that has always been considered by sentencing courts to bear on punishment ... and dictated the precise weight to be given that factor.” McMillan, 477 U.S. at 89-90,106 S.Ct. 2411 .
Id. at 500-01 (some citations omitted; emphasis to “U.S.S.G. § 2K2.2, comment, (backg’d)” added).
Even though the Sentencing Commission had not provided any reasons for the two-level enhancement required by U.S.S.G. § 2K2.1(b)(4),
Goodell
cited to the background Commentary of a different provision, U.S.S.G. § 2K2.2, which had already been deleted, to provide the rationale.
See Goodell,
Available pre-guidelines data were not sufficient to determine the effect a stolen firearm had on the average sentence. However, reviews of pre-guidelines cases suggested that this factor tended to result in more severe sentences. Independent studies show that stolen firearms are used disproportionately in the commission of crimes.
Id. App. C. amd. 374 (deleting the earlier version of U.S.S.G. § 2K2.1) (emphasis added). As already noted, supra, this statistical excuse is less than persuasive on the issue of scienter.
Defendant’s argument in
Goodell
that the enhancement circumvents congressional intent in requiring mens rea when criminalizing possession of stolen firearm in a separate statute,
see
18 U.S.C. §§ 922(i) and 922(j), and mandates a sentence equal to that resulting from that particular statute without requiring the prosecution to prove scienter, was dismissed in a footnote: “[Defendant] was charged with a violation of § 922(g), not § 922(i). [Defendant] has not argued that his constitutional rights were violated by the prosecution’s decision to charge him with § 922(g).”
Goodell,
The Court of Appeals for the Ninth Circuit revisited the enhancement post-Uoolc
er
in a different context.
See United States v. Ellsworth,
Under rational basis review, the distinction for sentencing purposes between felons in possession of stolen firearms and those in possession of stolen explosives “must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” FGC v. Beach Commc’ns,508 U.S. 307 ,113 S.Ct. 2096 ,124 L.Ed.2d 211 (1993) (emphasis add *460 ed). It is reasonably conceivable that although explosives are in theory more deadly than firearms when compared on an individualized basis, stolen firearms are more readily obtainable by felons and therefore more deadly than stolen explosives in the aggregate. “Or so the legislature may think.” Williamson v. Lee Optical of Okla., Inc.,348 U.S. 483 , 489,75 S.Ct. 461 ,99 L.Ed. 563 (1955); see also id. at 487-88,75 S.Ct. 461 (upholding an Oklahoma law under equal protection rational basis review by positing numerous hypothetical justifications for the law without considering whether or not the legislature actually considered such justifications).
Id. at 1150 (emphasis in original). No factual basis for believing that it is easier to steal firearms than explosives was provided.
L Courts of Appeals for the Fourth, Fifth, Sixth, Eighth, Tenth, Eleventh, and District of Columbia Circuits
The
pre-Booker
opinions of the courts of appeals for the Eleventh Circuit in
Richardson,
These decisions, similarly to
Goodell,
but with less analysis, hold that the rule of lenity does not apply to U.S.S.G. § 2K2.1(b)(4) and that the enhancement is not barred by the presumption against a strict liability crime.
See Richardson, 8
F.3d at 770 (“[T]he lack of a mens rea element in the sentencing enhancement for possession of a stolen firearm does not offend due process----[T]he rule of lenity does not require that the government prove [the defendant] knew the firearm was stolen.”) (citations omitted);
Sanders,
Some of these courts have revisited the issue after
Booker,
C. Reconsideration Under the Sixth Amendment Line of Cases
The two-level strict liability enhancement for a stolen gun must be reconsidered in light of the protections now afforded to a defendant in sentencing proceedings. Distinctions that afforded the defendant reduced constitutional protections in sentencing are now obsolete in part. See infra section IV.C.l. and supra section III.B.
1. Developing Sixth Amendment Defendants’ Protections in Sentencing
In
McMillan v. Pennsylvania,
the Supreme Court reviewed the constitutionality of a Pennsylvania law requiring a five year mandatory minimum sentence for a person found guilty of certain felonies if the sentencing judge found, by a preponderance of the evidence, that the person “visibly possessed a firearm” during the commission of the crime.
McMillan,
The dissenting opinions of Justice Marshall, joined by two other justices, and of Justice Stevens would have held that any enhancement must be proven beyond a reasonable doubt:
Once a State defines a criminal offense, the Due Process Clause requires it to prove any component of the prohibited transaction that gives rise to both a special stigma and a special punishment beyond a reasonable doubt. This much has been evident at least since In re Winship,397 U.S. 358 ,90 S.Ct. 1068 ,25 L.Ed.2d 368 (1970). In that case, the Court “explicitly” held that “the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” Id., at 364,90 S.Ct. 1068 .
Id.
at 96,
*462
Supreme Court decisions in the past ten years have moved towards the Marshall-Stevens view. They have highlighted the constitutional dangers in removing from the jury assessment of facts by a beyond a reasonable doubt standard that incorporates constitutional protections if they increase the prescribed range of penalties to which a criminal defendant is exposed.
See Almendarez-Torres v. United States,
In
Almendarez-Torres,
a 5-4 Court held that a statutory provision enhancing a defendant’s sentence for illegally re-entering the United States if he or she had been deported subsequent to an aggravated felony conviction is a penalty provision which authorizes the sentencing court to increase the sentence.
Almendarez-Torres,
The dissent in Almendarez-Torres analyzed case law interpreting the Sixth Amendment as requiring that all elements of a crime be proven to a jury beyond a reasonable doubt.
In all our prior cases bearing upon the issue, however, we confronted a criminal statute or state-court criminal ruling that unambiguously relieved the prosecution of the burden of proving a critical fact to the jury beyond a reasonable doubt. In McMillan v. Pennsylvania,477 U.S. 79 ,106 S.Ct. 2411 ,91 L.Ed.2d 67 (1986), the statute provided that visible possession of a firearm shall not be an element of the crime, but shall be determined at sentencing by the court by a preponderance of the evidence. In In re Winship,397 U.S. 358 ,90 S.Ct. 1068 ,25 L.Ed.2d 368 (1970), it provided that determinations of criminal action in juvenile cases must be based on a preponderance of the evidence. In Patterson v. New York,432 U.S. 197 ,97 S.Ct. 2319 ,53 L.Ed.2d 281 (1977), the statute provided that extreme emotional disturbance is an affirmative defense. Amd in Mullaney v. Wilbur,421 U.S. 684 ,95 S.Ct. 1881 ,44 L.Ed.2d 508 (1975), Maine’s highest court had held that in murder cases malice aforethought was presumed and had to be negated by the defendant.
Id.
at 248-49,
In
Jones,
a 5-4 Court rejected an interpretation of the federal carjacking statute, 18 U.S.C. § 2119, which would have defined it as a single crime with a choice of three maximum penalties, “two of them dependent on sentencing factors exempt from the requirements of charge and jury verdict.”
Jones,
Apprendi
was the first case explicitly holding that under the Sixth Amendment, any fact other than a prior conviction which increases the penalty of a crime must be submitted to a jury and proven beyond a reasonable doubt.
Apprendi
The historic link between verdict and judgment and the consistent limitation on judges’ discretion to operate within the limits of the legal penalties provided highlight the novelty of a legislative scheme that removes the jury from the determination of a fact that, if found, exposes the criminal defendant to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone.
Id.
at 482-83,
In
Blakely,
Washington State’s sentencing guidelines, which resembled their federal counterpart, were invalidated because they permitted enhancement of a defendant’s sentence based on facts found by a judge by a preponderance of evidence.
Blakely,
%. Loss of Force in Enhancement Precedents
After it was held that the Sentencing Commission did not violate delegation of power and separation of powers,
see Mistretta,
This view of unlimited power has changed.
See supra
section IV.C.l.;
Booker,
D. Invalidity
1. General Problems in Reviewing the Sentencing Commission’s Determinations
a. Administrative Law Framework
A number of fundamental problems of constitutional dimensions exist in administrative law. First, are the problems an agency creates with structures that seem to violate constitutional separation and delegation of powers. Second, is the problem of how an appropriate check can be provided when an agency determination affects rights in individual cases.
The first problem of constitutional structures and separation of powers has been largely resolved for the typical agencies by the non-delegation and “intelligible principles” doctrine.
See, e.g., Whitman v. Am. Trucking Assoc.,
The Sentencing Commission, an agency theoretically within the judicial branch of the government, has survived separation of powers and delegation of power challenges.
See Mistretta,
Although the Sentencing Commission must follow the notice and comment rule-making procedures of the APA,
see
28 U.S.C. § 994(x), the APA mechanisms for judicial review of agency determinations have not been applied to the Sentencing Commission on the ground that it is an agency within the judicial branch.
See 5
U.S.C. § 551 (defining agency as “each authority of the Government of the United States ... but ... not including] ... the courts of the United States”);
see also
John C. Coffee, Jr.,
The Repressed Issues of Sentencing: Accountability, Predictability, and Equality in the Era of the Sentencing Commission,
66 Geo. L.J. 975, at 998-99 & n. 65 (1978) (creation of Sentencing Commission in place of Parole Commission substituted an “agency that is largely immune from the reach of the [APA] for one that has been largely subject to the Act”) (footnotes omitted);
In re Fidelity Mortgage Investors,
Challenges to a particular Guideline as “arbitrary and capricious” and defendants’ attempts to enforce the procedures that bind the Sentencing Commission under the familiar administrative law framework are foreclosed by current appellate cases.
See, e.g., United States v. Lopez,
b. Review of Commentary
The problem is complicated by the fact that mechanisms for congressional review
of the
Sentencing Guidelines are incomplete. The Guidelines Manual contains three varieties of text: (1) Guideline provisions, (2) Policy Statements and (3) Commentary.
See Stinson,
The treatment of Commentary as binding on sentencing courts absent a violation of the Constitution and federal statutes is unusual in comparison to the weight afforded to guidelines, policy statements and opinion letters of other agencies.
See, e.g., United States v. Mead Corp., 533
U.S. 218,
Section 994(p) of title 28 requires the Sentencing Commission to submit any proposed permanent Guidelines to Congress. 28 U.S.C. § 994(p). The new Guideline becomes effective six months after its submission, thus affording Congress an opportunity to reject or modify it.
Id.
Commentary, however, is not automatically reviewed by Congress.
Id.
at 46,
Congress necessarily contemplated that the Commission would periodically review the work of the courts, and would make whatever clarifying revisions to the Guidelines conflicting judicial decisions might suggest. Although amendments to guidelines provisions are one method of incorporating revisions, another method open to the Commission is amendment of the commentary, if the guideline which the commentary interprets will bear the construction. Amended commentary is binding on the federal courts even though it is not reviewed by Congress, and prior judicial constructions of a particular guideline cannot prevent the Commission from adopting a conflicting interpretation that satisfies the standard we set forth today.
Id.
at 45,
An unpublished opinion of the Court of Appeals for the Eleventh Circuit discussed the lack of transparency created by the Commentary to the Guidelines:
Stinson ... established that the Commission, by means of writing commentary to the Guidelines, possesses the power to, in effect, make law without the participation of Congress — that would overrule (perhaps even retroactively) the *468 law of the federal circuits as announced by the highest courts of those circuits. The authority granted to the Commission by Congress is now coupled with the Stinson conclusion that, amended commentary is binding on the federal courts even though it is not reviewed by Congress, and prior judicial constructions of a particular guideline cannot prevent the Commission from adopting a conflicting interpretation that satisfies the standard we set forth today. Stinson thus provides a mechanism to circumvent both the judicial hierarchy and Congress.
United States v. McLellan,
Judge John Gleeson has documented the Commission’s inappropriate utilization of amendments to one Guideline Commentary. Initially it had allowed prosecutors to engage in sentence bargains for “justifiable reasons.” See John Gleeson, The Sentencing Commission and Prosecutorial Discretion: The Role of the Courts in Sentencing Bargains, 36 Hofstra L.Rev. 639, 644-47 (2008). The Commission later amended the Commentary to define “ ‘justifiable reasons’ [as] ... those extraordinary circumstances that would support a departure under the Guidelines’ narrow departure authority,” thereby substantively changing the Guideline by evading the notice and comment procedure and congressional review. Id. at 644. Judge Gleeson described the process used by the Commission and its perverse effects:
At the same time that it restricted judicial discretion at sentencing, the Commission took pains to assure judges, prosecutors, and defense attorneys that it was not touching plea bargaining practices, at least not yet. Rather, the Guidelines would establish a clear and definite sentence expectation so the plea bargaining prosecutor and defense counsel would “no longer work in the dark.” In policy statement § 6B1.2 and its commentary the Commission said that sentence bargains could be accepted as long as the specified sentence departed from the applicable Guidelines range for “justifiable reasons” and did “not undermine the basic purposes of sentencing.”
Those are standards a district judge can work with. The phrase “justifiable reasons” can easily accommodate all of the real-world factors that cause prosecutors and defense counsel to strike sentence bargains. And since those concerns had long been considered legitimate reasons for courts to accept sentence bargains, it was easy to conclude that accepting these agreements did not “undermine” any purposes of sentencing, let alone the “basic” ones. So the initial Guidelines left plea bargaining in general — and sentence bargaining in particular — as the Commission had found it.
Then, in 1989, just two years into the Guidelines era, the Sentencing Commission produced Amendment 295 to the *469 Guidelines.... The amendment is easily described. The Commission did not touch the text of § 6B1.2, which still authorizes judges to accept sentence bargains so long as there are “justifiable reasons” for doing so. But it slipped into the commentary language that defined that phrase. The definition limited “justifiable reasons” to those extraordinary circumstances that would support a departure under the Guidelines’ narrow departure authority.
Though the Commission billed the 1989 amendment as a mere “clarification” of the existing commentary, nothing could have been further from the truth. By prohibiting judges from accepting a bargain for a sentence that could not be reached through the departure power, the Commission actually made a very important normative decision: It subjected disparities produced by prosecutors through sentence bargains to the same tight regulation the Guidelines had imposed upon disparities produced by judges. A prosecutor’s concern about losing at trial is not an authorized departure ground. Neither is concern for the victim, sympathy for a defendant, or a desire to free up resources for another investigation.... [TJhese and other reasons had always been considered legitimate bases for a prosecutor, subject to court approval that was almost always given, to negotiate a sentence bargain.. For reasons sufficient to the Commission but expressed nowhere, the 1989 amendment tried to outlaw these agreements by requiring judges to reject them.... The intent to snuff out sentence bargains in almost all circumstances was clear. Indeed, a law review article authored by the Commission’s Chair and General Counsel shortly after the 1989 amendment suggested that the real reason for the “clarification” was to do just that.
... This is not the way sentencing policy should be made____[A]ll ... facets of the issue cannot be considered where important policy changes are made by stealth, disguised as “clarifications.”
Id. at 643-46 (footnotes omitted).
The two-level enhancement for a stolen gun is mandated by a Guideline. See U.S.S.G. § 2K2.1(b)(4). The Guideline does not state whether the defendant needs to be aware that the gun was stolen. That is provided in the Commentary. See U.S.S.G. § 2K2.1(b)(4) cmt. n.8(B). The predecessor section of U.S.S.G. § 2K2.1(b)(4), section 2K2.3(b)(2)(C), authorized a one-level enhancement “[i]f the defendant knew or had reason to believe that the firearm was stolen .... ” U.S.S.G. § 2K2.3(b)(2)(C) (Nov.1987). This earlier version of the Commentary was submitted to Congress as part of the first Guidelines Manual. Effective November 1, 1989, some provisions of section 2K2.3 were consolidated into section 2K2.1. See U.S.S.G.App. C, amdt. 189. At that time, the enhancement for stolen firearms and firearms with altered or obliterated serial numbers was redesignated as section 2K2.1(b)(4); the amended Guideline authorized a two-level increase and eliminated the scienter requirement. See U.S.S.G. § 2K2.1(b)(4) (Nov.1989).
By this process, the Commission substantively altered the Commentary and avoided automatic congressional review. The new Commentary to the Guideline achieves the same effect as a statute prohibiting possession of a stolen gun. See 18 U.S.C. § 922(j). The difference between the Commentary and the statute is that the former holds the defendant strictly liable (regardless of the fact that the defendant did not know or have reason to believe that the gun was stolen) and the latter requires the defendant to know or have reasonable cause to believe that the *470 gun was stolen. Commentary, not reviewed by Congress, nor subject to the full scrutiny under the APA, promulgated by an agency within the judicial branch of the government, holds a person strictly liable in a situation where the elected branch of our government requires that a defendant have knowledge. See infra section IV. D.2.b.i.
c. Departure from the Guidelines
Departure from the Sentencing Guidelines appears to provide one possible mechanism of judicial review over the Sentencing Commission in those cases when a mitigating or aggravating circumstance “of a kind, or to a degree” was “not adequately taken into consideration by the Sentencing Commission in formulating the guidelines.”
See
18 U.S.C. § 3553(b)(1);
see also
Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003, Pub.L. 108-21, § 401(d)(1), 117 Stat. 670 (adding a de novo standard of review for departures). In determining whether to depart, the court is directed to consider only “the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission.” 18 U.S.C. § 3553(b)(1). In those circumstances in which the Sentencing Commission has adequately taken all circumstances into consideration — even though it has arbitrarily and capriciously mandated an enhancement as in the instant case — departure is not permissible.
See, e.g., United States v. Canales,
2. Commentary to U.S.S.G. § 2K2.1(b)(k) Violating Enabling Statute
a. Standard of Review
The question of what standard of review applies in determining whether a sentencing Guideline violates sections 991 and 994 of title 28 was largely left unresolved pre
Booker. See LaBonte,
The Supreme Court’s decision in
Chevron
sets forth the standard in reviewing an agency’s construction of a statute which it administers.
See Chevron,
The power of an administrative agency to administer a congressionally created program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress. If Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific *471 provision of the statute by regulation. Such legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute. Sometimes the legislative delegation to an agency on a particular question is implicit rather than explicit. In such a case, a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.
Id.
at 843-44,
Chevron
has been the subject of criticism, praise and exceptions.
See, e.g.,
Cass R. Sunstein,
Law and Administration After Chevron,
90 Colum. L.Rev. 2071, 2074 (1990) (“The
Chevron
principle ... is quite jarring to those who recall the suggestion, found in
Marburg v. Madison
and repeated time and again in American public law, that it is for judges, and no one else, to ‘say what the law is.’ ”) (footnote omitted);
EEOC v. Arabian American Oil Co.,
The Supreme Court’s decision in
LaBonte
supports the rule of no deference in review of the Sentencing Commission’s constructions of unambiguous federal statutes.
LaBonte,
(1) has been convicted of a [violent crime or drug-related] felony .... and
(2) has previously been convicted of two or more prior felonies, each of which is [a violent crime or drug-related]....
28 U.S.C. § 994(h).
The Career Offender Guideline which sought to give effect to section 994(h) created a table of enhanced total offense levels. A defendant who qualifies for “career offender status” was automatically placed in criminal history category VI, the highest available under the Guidelines.
La
*472
Bonte,
The Supreme Court rejected the Sentencing Commission’s interpretation of section 994(h). It ruled that although the Commission is afforded “significant discretion in formulating the guidelines ...,
it must bow to the specific directives of Con
gress.”
Id.
at 757,
Congress has expressly provided enhanced maximum penalties for certain categories of repeat offenders in an effort to treat them more harshly than other offenders.... We are unwilling to read § 994(h) as essentially rendering meaningless entire provisions of other statutes to which it expressly refers.... Congress surely did not establish enhanced penalties for repeat offenders only to have the Commission render them a virtual nullity.....Whatever latitude § 994(h) affords the Commission in deciding how close a sentence must come to the maximum to be “near” it, the statute does not license the Commission to select as the relevant “maximum term” a sentence that is different from the congressionally authorized maximum term.
Id.
at 760-61,
The Court refused to apply
Chevron
deference to the Commission’s interpretation of section 994(h) because the statute was, it held, unambiguous and the Commission’s interpretation was inconsistent with its plain meaning.
Id.
at 761 n. 6,
The Court rejected the Commission’s argument that the amended commentary serves the broad purposes of the Sentencing Reform Act to reduce unwarranted sentencing disparity by mitigating “variations in exercise of prosecutorial discretion in seeking enhanced penalties based on prior convictions.”
Id.
at 761-62,
Prior to
LaBonte,
several courts of appeals applied
Chevron
deference or some other deferential standard of review when determining the Sentencing Commission’s construction of federal statutes.
See, e.g., United States v. Lee,
LaBonte
supports the conclusion that the Sentencing Commission is owed no deference when it interprets unambiguous federal statutes.
See also United States v. Butler,
Several considerations suggest that the Commission should be entitled to less deference than is afforded to other agencies when interpreting an ambiguous statute or Commentary to the Guidelines. The Commission, rather than regulating an area like other specialized agencies which require special expertise, interprets substantive criminal law with constitutional implications,
see infra
section IV. D.2.b.ii., and regulates sentencing of criminal defendants which is “historically within the discretion of judges.”
United States v. Galloway,
b. Enhancement Violates Requirement of Knowledge that Firearm was Stolen
Commentary to the two-level enhancement for a stolen gun,
see
U.S.S.G. § 2K2.1 cmt. n. 8(B), holding the defendant strictly liable would be invalid under
Chevron
deference,
mn-Chevron
deference and the APA’s arbitrary and capricious standard. Because the rule of lenity is only available when a statute is ambiguous, it will not save U.S.S.G. § 2K2.1(b)(4).
See Folizzi,
i Statute Requiring Mens Rea
Congressional concern with stolen firearms resulted in the 1963 enactment of wide-ranging legislation criminalizing transportation, receipt, concealment, storing, bartering, selling and disposing of stolen firearms. See Omnibus Crime Control and Safe Streets Act of 1968, Pub.L. No. 90-351, § 902 (enacting Chapter 44 of title 18). The Court of Appeals for the Fifth Circuit has pointed out that amendments to section 922(j) evince Congress’s commitment to eradicate traffic in stolen firearms:
In addition to the jurisdictional nexus found in the language of § 922(j), congressional findings support the conclusion that possession of stolen firearms “substantially affects interstate commerce.” ... Section 922 has been amended twice since its inception, and both amendments have broadened the scope and strengthened the role of the federal government in the continuing fight against illicit trafficking in stolen firearms. The provision was first expanded in 1990 to reach firearms “shipped or transported in” interstate commerce. In its report on proposed changes to § 922, the Judiciary Committee of the House of Representatives explained that the change in § 922(j) was designed to “expand Federal jurisdiction to permit prosecutions for transactions involving stolen firearms where the firearms have already moved in interstate or foreign commerce.” Again, in 1994, § 922(j) was amended to specify that the firearm could have traveled in interstate *475 commerce “either before or after it was stolen.” Although Congress made no findings regarding this amendment, we perceive the clear purpose to have been to extend further its cognizance over any stolen firearm.
The expansion of federal jurisdiction over stolen firearms demonstrates Congress’s commitment to eradicating the traffic in stolen firearms....
United States v. Luna,
Section 922(j) of title 18 criminalizes those who “receive, possess, conceal, store, barter, sell, or dispose of any stolen firearm ...
knowing or having reasonable cause to believe that the firearm or ammunition was stolen.”
18 U.S.C. § 922(j) (emphasis added);
see also
18 U.S.C. § 922(i) (criminalizing transportation of “any stolen firearm ...
knowing or having reasonable cause to believe that the firearm ... was stolen.”)
(emphasis added). An earlier version of section 922(j) did not criminalize mere possession.
See United States v. Honaker,
Federal statutes related to firearms almost uniformly explicitly require a mens rea component.
See, e.g.,
18 U.S.C. § 922(b)(1)
{“knows or has reasonable cause to believe”)
(emphasis added); 18 U.S.C. § 922(b)(2)
{“knows or has reasonable cause to believe
”) (emphasis added); 18 U.S.C. § 922(b)(2)
(“knows or has reasonable cause to believe
”) (emphasis added); 18 U.S.C. § 922(d)
{“knowing or having reasonable cause to believe
”) (emphasis added); 18 U.S.C. § 922(f)
{“with knowledge or reasonable cause to believe
”) (emphasis added); 18 U.S.C. § 922(h)
{“knowledge
”) (emphasis added); 18 U.S.C. § 922(i)
(“knowing or having reasonable cause to believe
”) (emphasis added); 18 U.S.C. § 922(j)
{“knowing or having reasonable cause to believe
”) (emphasis added); 18 U.S.C. § 922(k)
{“knowingly
”) (emphasis added); 18 U.S.C. § 922©
{“knowingly”)
(emphasis added); 18 U.S.C. § 922(m)
{“knowingly”)
(emphasis added). Courts have employed the rule of lenity to read in a mens rea for those firearms-related statutes which do not have one.
See, e.g., Staples v. United States,
ii. Historical Importance and Constitutional Requirement of Mens Rea
Congressional requirements of mens rea in criminal statutes conform to the pro
*476
found status afforded the concept in Anglo-American history and constitutional jurisprudence.
See, e.g., Polizzi,
Like most common law doctrines preexisting the Constitution and modern statutes, mens rea has been subjected to some limited exceptions.
Cordoba-Hincapie,
The work of leading authorities on criminal law before and after the adoption of the Constitution and the Supreme Court’s and lower federal courts’ treatment of the mens rea principle form the constitutional baseline for its requirement in criminal laws. Id. at 489-521 (collecting authorities on criminal law, Supreme Court and lower court cases); Bentham, Principles of Penal Law, in 1 The Works of Jeremy Bentham 397-98 (John Bowring ed., 1962); Oliver Wendell Holmes, The Common Law 43-50 (1881); Francis Bowes Sayre, Public Welfare Offenses, 33 Colum. L.Rev. 55, 78 (1933); Jerome Hall, General Principles of Criminal Law 133-34 (2d ed.1960); Glanville Williams, Criminal Law: The General Part 30 (2d ed.1961); Herbert L. Packer, Mens Rea and the Supreme Court, 1962 Sup.Ct. Rev. 107,143-45 (1962).
Caselaw and the historical roots of mens rea pre-dating the Constitution impart a clear message that the concept is constitutionally required by the due process clause because:
*477 By the time the right to a jury trial and due process was embedded in the first amendments to the Constitution, mens rea constituted a fundamental protection against abuse of criminal sanctions by the state. It is a general rule of law that guards beliefs deeply held within our traditions of individual freedom, responsibility and duty.
Cordoba-Hincapie,
Recent Supreme Court precedent supports the proposition that mens rea is required in possession-related firearms statutes. In
Staples,
a federal statute criminalized possession of unregistered “maehineguns,” defined as a weapon that automatically fires more than one shot with a single pull of the trigger.
Staples,
[T]he fact remains that there is a long tradition of widespread lawful gun ownership by private individuals in this country.... Here, the Government essentially suggests that we should interpret the section under the altogether different assumption that “one would hardly be surprised to learn that owning a gun is not an innocent act.” That proposition is simply not supported by common experience. Guns in general are not “deleterious devices or products or obnoxious waste materials! ]” that put their owners on notice that they stand “in responsible relation to a public danger!.]”
... [C]riminaliz[ation of] ostensibly innocuous conduct is inapplicable whenever an item is sufficiently dangerous— that is, dangerousness alone should alert an individual to probable regulation and justify treating a statute that regulates the dangerous device as dispensing with mens rea. But that an item is “dangerous,” in some general sense, does not necessarily suggest, as the Government seems to assume, that it is not also entirely innocent. Even dangerous items can, in some cases, be so commonplace and generally available that we would not consider them to alert individuals to the likelihood of strict regulation .... [D]espite their potential for harm, guns generally can be owned in perfect innocence.
Id.
at 610-11,
The Court found it unnecessary to rely upon the rule of lenity to reach the result implying mens rea:
In reaching our conclusion, we find it unnecessary to rely on the rule of lenity, under which an ambiguous criminal statute is to be construed in favor of the accused. That maxim of construction is reserved for cases where, after seizing every thing from which aid can be derived, the Court is left with an ambiguous statute. Here, the background rule of the common law favoring mens rea and the substantial body of precedent we have developed construing statutes that do not specify a mental element provide considerable interpretive tools from which we can seize aid, and they do not leave us with the ultimate impression that [the statute] ... is grievously ambiguous. Certainly, we have not concluded in the past that statutes silent with respect to mens rea are ambiguous.
Id.
at 619 n. 17,
in. Analysis
In the instant case there is a closely related specific and unambiguous statute which requires the government to prove beyond a reasonable doubt that the defendant knew or had reason to know that the firearm he possessed was stolen.
See
18 U.S.C. § 922(j). Commentary to U.S.S.G. § 2K2.1(b)(4) cannot ignore this congressional policy and the constitutional implications attached to it.
Cf. Staples,
Other considerations supporting the invalidity of U.S.S.G. § 2K2.1 cmt. n. 8(B) include research showing that firearm retailers often sell guns to ineligible persons (e.g., convicted felons, non-state residents) and report those guns lost or stolen in order to avoid liability if the gun is traced back to their establishment by federal and state authorities.
See, e.g.,
Americans for
*479
Gun Safety Foundation, Selling Crime: High Crime Gun Stores Fuel Criminals (A Study of Gun Stores with Over 200 Crime Gun Traces (1996-2000)) 11 (2004) (“[A]TF developed a series of trafficking indicators that assist in identifying potentially corrupt firearm dealers. These indicators include: ... dealers who frequently report firearms stolen or lost ...”);
see also, e.g., City of Neiu York v. A-l Jeioelry & Pawn Shop, Inc.,
The Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”), the principal federal agency charged with regulating the firearms industry, has determined that federal firearms licensed dealers (“FFLs”) often fail to follow federal laws which require them to be transparent and maintain records to account for the majority of the guns being reported lost or stolen:
The accuracy of a dealer’s inventory is critical to ATF’s ability to trace crime guns. Pursuant to the Violent Crime Control and Law Enforcement Act of 1994, FFLs are required to report firearms lost and stolen from inventory to the NTC [ (ATF’s National Tracing Center) ] within 48 hours of theft or loss.... ATF has no authority to require FFLs to take security measures, but can seek to determine whether firearms reported lost or stolen were accurately reported, or trafficked by the licensee or an employee of the licensee.
In 1998 and 1999, licensees filed reports on over 5,000 incidents, involving 27,287 lost or stolen firearms. These included the following types of incidents:
• Inventory errors, recordkeeping errors, and employee theft, accounting for approximately 39 percent of reported incidents and over 11,000 firearms.
Among retail dealers, including pawnbrokers, inspected as part of a special ATF survey in 1998, over half had reported a firearm stolen at some point. Among those that had sold 50 or more firearms the previous year, 10 percent of pawnbrokers and 16 percent of other retail dealers had reported a theft since commencing business. Inventory inconsistencies were discovered at some time in the records of about 45 percent of the pawnbrokers, and nearly 20 percent of the other retail dealers that had sold 50 or more firearms the previous year.
The records of ATF inspections confirm that inventory errors are occurring at a high rate. During inspections conducted in 1999, 21,000 firearms were initially identified as missing from inventory. During the course of their work, inspectors verified firearms in inventory against the record books. This allowed *480 corrections of the records to reduce the number of missing firearms to 5,700. Thus, inspectors corrected a total of over 15,000 inventory errors. Errors in inventory records are a serious problem because a firearm missing from inventory cannot be traced.
Bureau of Alcohol, Tobacco, Firearms and Explosives, Commerce in Firearms in the United States: 2000 27-28 (2000). It is apparent that just because a gun has been traced as stolen does not prove that the gun was actually stolen.
The Sentencing Commission’s now-deleted rationale that it requires the enhancement because pre-Sentencing Guidelines sentences tended to be severe if the gun was stolen appears to be inconsistent with the Commission’s own amendments to the Guideline and Commentary.
See Goodell,
Different treatment of mens rea for stolen explosives and guns has not been justified. Section 2K1.3(b)(2) of the Sentencing Guidelines requires a two-level enhancement for possession of stolen explosives only when “the defendant knew or had reason to believe” the explosives were stolen. See U.S.S.G. § 2K1.3(b)(2). The statutes prohibiting possession of stolen firearms and explosives are similar and both require the defendant to know or have reasonable cause to believe that that the prohibited item was stolen. Compare 18 U.S.C. § 842(h) (“It shall be unlawful for any person to ... possess ... any stolen explosive materials ... knowing or having reasonable cause to believe that the explosive materials were stolen.”) with 18 U.S.C. § 922© (“It shall be unlawful for any person to ... possess ... any stolen firearm ... knowing or having reasonable cause to believe that the firearm ... was stolen.”) (emphasis added). Accordingly, the enhancement for stolen guns should require mens rea similarly to the enhancement for stolen explosives.
Because the enhancement does not require the defendant to know or have reasonable cause to believe that the firearm he possessed was stolen, it does not provide deterrence since a person cannot be deterred from doing what he or she does not know is being done. See 18 U.S.C. § 3553(a)(2)(B). Because it lacks a requirement of scienter, the enhancement does not reflect the seriousness of the offense, promote respect for the law or provide just punishment for the offense. See 18 U.S.C. § 3553(a)(2)(A).
V. Conclusion
The two-level strict liability enhancement for a stolen gun under U.S.S.G. § 2K2.1(b)(4) may not be applied. The defendant did not know and had no reason to know that the gun he possessed was stolen.
SO ORDERED.