Strict Liability Enhancement for Possessing a Stolen Firearm Survives Havis, Rehaif

The sentencing guideline for unlawful possession of a firearm increases the offense level if the firearm was stolen. This enhancement applies on a strict liability basis; it does not require any mens rea. The Sixth Circuit had previously approved holding defendants strictly liable for possessing stolen firearms, noting the commentary to the guidelines states that the enhancement applies regardless of whether the defendant knew or had reason to know the firearm was stolen.

However, in light of recent case law, Anthony Palos argued for a mens rea requirement. First, the defendant relied on the Sixth Circuit’s en banc opinion in United States v. Havis, 927 F.3d 382 (6th Cir. 2019). In Havis, the Court held that the commentary to the guidelines improperly added attempt crimes to the list of controlled substance offenses. Applying Havis, the defendant argued that the commentary improperly expanded § 2K2.1(b)(4) by stating that there is no mens rea requirement.

The Sixth Circuit rejected this argument. Instead, the Court held that the text of the enhancement—through its silence on mens rea—bore the strict liability interpretation contained in the commentary. Because other parts of § 2K2.1 impose mens rea requirements, the fact that the stolen firearm enhancement fails to do so supports a strict liability interpretation.

The defendant also relied on Rehaif v. United States, 139 S. Ct. 2191 (2019). In Rehaif, the Supreme Court established a mens rea requirement for convictions under 18 U.S.C. § 922(g), despite the statute's lack of an express mens rea element. The Rehaif Court relied on a “presumption of scienter” to apply the requirement. Mr. Palos argued that the same presumption of scienter should apply to create a mens rea requirement for § 2K2.1(b)(4).

However, the Sixth Circuit rejected this argument. The Court held that the guidelines are “fundamentally distinct” from statutes when it comes to mens rea. Namely, statutes define the boundaries of lawful conduct, while the guidelines punish defendants for the consequences of their unlawful acts.

In a different part of the opinion, the Court once again held that an offer to sell does not qualify as a controlled substance offense. Mr. Palos had a previous conviction under Ohio Revised Code § 2925.03(A)(1), which criminalizes “sell[ing] or offer[ing] to sell a controlled substance.” Following United States v. Cavazos, 950 F.3d 329 (6th Cir. 2020) and United States v. Alston, ___ F.3d ___, 2020 WL 5755465 (6th Cir. Sept. 28, 2020), the Court held that an offer to sell a controlled substance qualifies as an attempt crime. Accordingly, after Havis, an offer to sell cannot qualify as a controlled substance offense under the guidelines.

Full opinion available here.

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