Appeal from United States District Court for the District of Vermont (Murtha, J.)
Submitted: January 12, 2011
Before: POOLER, WESLEY and CHIN, Circuit Judges.
sentencing Sean Gravel principally to a term of imprisonment of 45 months following his guilty plea to possession of a firearm in violation of 18 U.S.C. § 922(j). The district court imposed a six-level sentence enhancement after finding that the stolen weapon was a machinegun within the meaning of 26 U.S.C. § 5845(b). On appeal, Gravel challenges the decision to impose the enhancement, arguing that because the weapon's automatic fire feature was disabled at the time of his theft it no longer qualified as a machinegun, rendering the six-level enhancement reversible error. Because the undisputed evidence established that the weapon originally was designed to fire automatically, we hold that it is a machinegun within the meaning of 26 U.S.C. § 5845(b) and affirm the sentence.
In August, 2008, Sean Gravel stole a Colt M-16A1. The stolen weapon originally was manufactured to fire automatically, but was later modified to shoot semi-automatically. Gravel was charged with, and pleaded guilty to, knowingly possessing a stolen firearm in violation of 18 U.S.C. §§ 922(j) and 924(a)(2). (A9) The United States District Court for the District of Vermont (Murtha, J.) applied a six-level enhancement to Gravel's sentence pursuant to U.S.S.G. § 2K2.1(a)(5), finding that the stolen weapon was both designed to fire automatically and could be readily restored to fire automatically. We agree that because the undisputed evidence established that the weapon at issue originally was designed to shoot automatically, the six-level enhancement set forth in Section 2K2.1(a)(5) applies. Because a finding that the Colt M-16A1 was designed to fire automatically suffices to resolve the issue before us, we do not reach the issue of whether the weapon was readily restorable to automatically fire.
One night in early August 2008, Gravel broke into a locked Vermont State Police cruiser and stole a Colt M-16A1 rifle, along with the rifle's case, six ammunition magazines and several hundred rounds of ammunition. After arrest, Gravel entered a plea of guilty to the indictment's single charge: knowing possession of a stolen firearm in violation of 18 U.S.C. §§ 922(j) and 924(a)(2).
At his sentencing hearing, the primary issue in dispute between the parties -- and the only issue on this appeal -- was whether the stolen Colt M-16A1 was a machinegun under U.S.S.G. § 2K2.1(a)(5) and 26 U.S.C. § 5845(b), which would require a six-level sentence enhancement. At the hearing, Supervisory Special Agent James Mostyn of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (the "Bureau") testified that the Colt M-16A1 at issue "is a machinegun made by Colt in the Vietnam era for the U.S. military. . . . It was initially designed to be an automatic firing weapon." The Vermont State Police acquired a number of Colt M- 16A1s from the U.S. military. A three-way switch on the weapon allows the user to choose different firing capacities, Mostyn explained, with "full auto" emptying the entire magazine with one pull of the trigger and "semi-automatic" discharging one round of ammunition with each trigger pull. By removing the weapon's auto sear (a piece of metal located behind the trigger assembly), Mostyn testified, the Colt M-161A weapon could be converted to only shoot semi- automatically. After being acquired by the Vermont State Police, the stolen M-16A1 was converted to semi-automatic fire. Mostyn further testified that the weapon could, with little effort, be converted back to automatic fire by replacing the auto sear. The district court found that the term "machinegun" as defined in 26 U.S.C. § 5845(a) includes any weapon originally designed by its manufacturer to shoot automatically. Holding that the undisputed testimony established that the M-16A1 was designed to shoot automatically, the district court decided the six-level sentencing enhancement applied to Gravel. Additionally, the district court found that the stolen weapon could be readily restored to automatic fire status, providing an alternative basis for the sentence enhancement. The district court calculated the appropriate Guidelines range as 57- to-71-months' imprisonment, made a downward departure due to Gravel's personal circumstances, and imposed a principal sentence of 45 months' imprisonment, followed by two years of supervised release.
We review a question of statutory interpretation de novo. United States v. Gayle, 342 F.3d 89, 91 (2d Cir. 2003). The only issue on appeal is whether the stolen Colt M-16A1 was a "machinegun" as defined in 26 U.S.C. § 5845(b), requiring a six-level sentence enhancement pursuant to U.S.S.G. § 2K2.1(a)(5). Section 5845(b) defines "machinegun" as: any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger. The term shall also include the frame or receiver of any such weapon, any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machinegun, and any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person.
26 U.S.C. § 5845(b). The issue of what "is designed to shoot . . . automatically more than one shot" is one of first impression for our Court. Gravel argues that the M-16A1 was "re-designed" into a semi-automatic weapon, and that because Section 5845 uses the present tense "is designed," we may consider only the state of the weapon as it existed at the time of his crime. The government argues that under the plain meaning of the statute, "designed" refers to what the weapon was originally designed to do, not to post-manufacture modifications. "A fundamental canon of statutory construction is that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning." Perrin v. United States, 444 U.S. 37, 42 (1979). The term "designed" is not defined in the statute, so we turn to other sources to determine its "ordinary, contemporary, common meaning." Webster's Third Int'l Dictionary (1993) defines "design" as to "to conceive and plan out in the mind," "to plan or have in mind as a purpose," and "to devise or propose for a specific function." Similarly, Black's Law ...