Bump Stocks ≠ Machineguns

In 2021, the Sixth Circuit, sitting en banc, was evenly split on whether "bump stocks" attached to semiautomatic rifles qualify as machine guns. See Gun Owners of America, Inc. v. Garland, 19 F.4th 890 (6th Cir. 2021) (en banc). In 2023, the question came before the Sixth Circuit again, and a panel decided that the rule of lenity counsels that the answer is "no."

In Hardin v. Bureau of Alcohol, Tobacco, Firearms & Explosives, No. 20-6380 (6th Cir. Apr. 25, 2023), the court examined 18 USC § 922(o)(1), which makes it unlawful to transfer or possess a machinegun, and 26 USC  § 5845(b), the definition of a machinegun in the National Firearms Act.

Ambiguity arises from the fact that § 5845(b) defines machinegun as a weapon that "automatically" fires more than one shot "by a single function of the trigger." Bump stocks "assist rapid fire by 'bumping' the trigger against one's finger (as opposed to one's finger pulling on the trigger), thus allowing the firearm's recoil, plus constant forward pressure by the non-shooting arm, to actuate the trigger." The Sixth Circuit emphasized that courts are all over the place on this question, as "a significant number of reasonable jurists have reached diametrically opposed conclusions as to whether the definition of a machinegun includes a bump stock," and the ATF itself has even had a "flip-flop" on the question.

The Sixth Circuit thus looked to the rule of lenity, and in particular, Fifth Circuit Judge Ho’s concurrence to the en banc Fifth Circuit decision in Cargill v. Garland, 57 F.4th 447 (5th Cir. 2023). That opinion proposed two analogies: (1) designer drugs, which are just as dangerous as unlawful drugs but not automatically banned by the Controlled Substances Act of 1970; and (2) a case about manslaughter on the “high seas” that was not automatically applicably to rivers.

As with those issues, the Sixth Circuit reasoned, although bump stocks might be indistinguishable from automatic weapons for practical purposes, "the relevant statutory scheme does not clearly and unambiguously prohibit bump stocks." So, under the rule of lenity, the bump stock holder wins.

Concurring, Judge Bush said he would go further: In his view, the statute unambiguously does not apply to bump stocks, so there was no need to resort to the rule of lenity. Citing Judge Murphy’s opinion in Gun Owners of America, he argued ATF was never allowed to apply the machine gun ban to bump stocks through agency ruling. He would have found that, under the statute as written, "the addition of a bump stock to a rifle clearly does not make it a machinegun."

For Real or Makebelieve? Court Reverses Attempted Kidnapping Conviction Planned Over Social Media.

Social media is a double-edged sword. It provides a platform for people to connect and freely discuss a wide-variety of issues. On the other hand, such unfiltered discussion can lead to trouble. Such was the case for Christian Ferguson, a twenty-year old resident of Cleveland, Ohio, who led an online chatroom on Discord known as the "75th Spartans." A military enthusiast, Ferguson, through his moniker "Grinch75R", expressed his desire to create a militia group and stage a "revolt against tyranny." 

On March 18, 2020, Ferguson posted that he wanted to organize the Spartans into a group that would raid for supplies such as weapons and armor. Although it is unclear how many individuals participated in the Spartans Discord group, it had at least one other member: "SecretAgentRandyBeans." On April 7, 2020, Ferguson asked AgentBeans whether he could drive because he wanted to do a "small claim" with the cops and leave the Spartans' calling card, explaining he had not yet found any recruits for this venture. AgentBeans, who was only fourteen, said he could "kinda drive."

Ferguson's postings aroused the suspicions of the federal government. Shortly after communicating with AgentBeans, an FBI confidential informant, known as "Guiness" asked to join the Spartan group, explaining he was a veteran of the United States Army. Ferguson ultimately added Guiness to the Spartan group chat.

Guiness became actively involved in the Spartan group. On several occasions, he invited Ferguson to train with him for a potential strike. On April 28, 2020, Ferguson detailed, for the first time, his idea for a potential strike against the police, explaining he wished to call a patrol car to an "open location," after which his group would ambush the officer, subdue him, raid his cruiser for weapons, and then release him. In subsequent chats, Ferguson clarified his "plan" was not happening imminently, stating the group was still "laying out the groundwork" for the plan. Guiness continued training with Ferguson, secretly recording their interactions and his discussions about his plan, including his intention to have AgentBeans find a girl to call the police with a fake domestic violence claim.

On May 5, 2020, Guiness suggested that the Spartans carry out their plan at an abandoned house in Cuyahoga Valley National Park (ahem...federal jurisdiction). In addition, Guniess suggested he, Ferguson, and a man named "Steve," who was an FBI informant, meet at the park the following Friday to conduct "recon."

As planned, the three men met the following Friday to conduct reconnaissance at the location. While there, Guiness suggested they conduct  a "dry run" of the plan by calling the police and timing how long it would take the responding officers to arrive. Ferguson agreed, Guiness placed the call, and the three men waited in the woods for park rangers to arrive. Tipped off by Guiness's call, the rangers arrested Ferguson -- and staged a fake arrest of Guiness and Steve -- when they arrived. 

Ferguson's arrest led the Government to obtain a search warrant for his residence, pursuant to which it seized an AR-15, ammunition, magazines, tactical gear, and a guerilla warfare manual.  The Government subsequently charged Ferguson with two counts of attempted kidnapping in violation of 18 U.S.C. §§ 1201(a) and (d), and a jury convicted him after a two-day trial.

In a published opinion, the Court reversed Ferguson's conviction for insufficient evidence. According to the majority, the jury incorrectly found Ferguson attempted to kidnap police officers because his plan was "underdeveloped and "exploratory in nature...." Critically, the Court held that, unlike other attempt cases, Ferguson had no timeline for his plan or an intent to execute it imminently. It was also unclear whether Ferguson's plan involved kidnapping or robbery.

The Government asserted Ferguson had, in fact, taken a "substantial step" because he: (a) provided verbal and visual descriptions of his idea in his Discord chats; (b) he supposedly purchased gear for the plan, including an AR-15; and (c) he, Guiness, and Steve visited the location. The Court rejected each of these arguments. First, it held Ferguson's discussions were merely "aspirational in nature" and that it is rare for a defendant to take a "substantial step" toward the commission of a crime through speech alone. The fact that Government agents seized gear from Ferguson's residence was similarly unavailing to the Court, noting Ferguson lawfully acquired his AR-15 before espousing his plan, and that the Government failed to establish when he acquired his remaining gear.

The Court likewise rejected the Government's claim that traveling to Cuyahoga Valley National park constituted a "substantial step." Noting that Government agents selected the site and orchestrated Ferguson's "dry run," it held that it was not evidence Ferguson intended to kidnap police officers.

Judge Bush authored a lengthy dissenting opinion arguing that, although it was a close case, it was not impossible for a jury to believe Ferguson intended to kidnap a police officer, and that he took a "substantial step" toward doing so. According to Judge Bush, it was for the jury, not the Court, to determine whether Ferguson's plan was just "makebelieve," or whether it was real.

Not your average pill mill case: Court holds a physician's good faith belief is a defense under 21 U.S.C. § 841.

Drug prosecutions involving physicians who are otherwise permitted to prescribe controlled substances present unique challenges for prosecutors and defense counsel. Defendant physicians frequently argue they were acting in good faith when they prescribed controlled substances to their patients. Unfortunately, recent Sixth Circuit caselaw made "good faith" defenses unavailable to such defendants. The Court, in its recently published opinion in United States v. Anderson, recognizes that recent caselaw from the United States Supreme Court changed changed the landscape in physician prosecutions. 

Dr. Roger Anderson was a licensed physician in Marietta, Ohio, who was authorized to prescribe controlled substances. According to federal investigators, Anderson prescribed controlled substances to many of his patients without a "legitimate medical purpose" over an approximately one-year period. In March 2019, a federal grand jury issued an indictment charging him with one count of conspiring to distribute controlled substances in violation of 21 U.S.C. § 846, nine counts of unlawful distribution of controlled substances in violation of 21 U.S.C. § 841(a)(1), one count of conspiracy to commit healthcare fraud in violation of 18 U.S.C. § 1349, and three counts of healthcare fraud in violation of 18 U.S.C. § 1347. 

To prove Anderson wrote prescriptions without a "legitimate medial purpose," the Government enlisted the aid of dozens of witnesses, including Dr. Timothy King, who it sought expert testimony. Prior to his trial, the District Court rejected Anderson's Daubert challenge to the admission of Dr. King's testimony. Anderson then proceeded to trial.

During the District Court's charge conference, the Government objected to a proposed good faith instruction that would have instructed the jury to acquit Anderson if it found he "acted in accordance with what he believed to be proper medical practice." In objecting to the proposed instruction, the Government cited the Sixth Circuit's opinion in United States v. Godofsky, 943 F.3d 1011 (6th Cir. 2019), which held that a physician’s “subjective good faith” was irrelevant in cases brought under 21 U.S.C. §§ 841. The District Court agreed, finding that Godofsky controlled and that, in any case, Anderson had not presented sufficient evidence regarding his own good faith. The jury subsequently convicted Anderson on all counts.

On appeal, Anderson challenged not only the District Court's decision not to submit a good faith instruction to the jury, but he also challenged its decision to admit Dr. King's testimony and the sufficiency of the evidence against him. The Court affirmed.

Addressing Anderson's claim regarding the good faith jury instruction, the Court noted that the United States Supreme Court's decision in Ruan v. United States, 142 S. Ct. 2370 (2022) -- issued after briefing had concluded in the case -- abrogated Godofsky and made  defendant's "subjective good faith" relevant to charges against physicians under § 841(a). This did not affect the outcome in Anderson's case, however, because the Court held the District Court's instructions complied with Ruan because they referred to the defendant's knowledge, his or her deliberate ignorance, and whether the defendant knew the prescriptions were dispensed illegitimately. The instructions, the Court concluded, thus encompassed a defendant's good faith.

The Court next addressed Anderson's argument that the District Court abused its discretion in admitting Dr. King's testimony. Specifically, Anderson argued the District Court erred because Dr. King did not disclose his methodology in his reports, that his methodology had not been peer reviewed, and that his expert opinion was "scientific guesswork." The Court rejected each of these arguments, noting the record supported the District Court's findings regarding the reliability of Dr. King's testimony.

Finally, Anderson challenged the sufficiency of the evidence supporting his conviction for conspiracy to distribute controlled substances, arguing the evidence showed he committed "mere malpractice," and, at worst, "sloppy documentation", and that he prescribed controlled substances to treat what he believed were legitimate medical complaints. The District Court rejected these arguments, holding the Government presented sufficient evidence Anderson did not have a "legitimate medical purpose" for prescribing the controlled substances at issue in the case.

The Court also rejected Anderson's challenge to his conviction for health care fraud. Specifically, Anderson argued the evidence was insufficient because he did not directly bill Medicare and Medicaid, he did not know who paid the prescriptions, and because he did not personally profit from the prescription reimbursements. The Court held it was not necessary for the Government to prove Anderson personally billed Medicare or Medicaid, and that, regardless, the Government proved he knew both programs paid for the prescriptions. Finally, the Court held it was not necessary for the Government to prove Anderson profited from his scheme. 

Judge Helene White issued an opinion concurring in part but dissenting in that portion of the majority opinion concluding the District Court's jury instructions comported with Ruan. Judge White argued the District Court should have submitted Anderson's good faith instruction to the jury.

When is an injury "permanent" under the Guidelines?

 

When is an injury "permanent" or "life-threatening" under the United States Sentencing Guidelines? The Court provides some additional guidance in its published opinion in United States v. Medlin.

In April 2017, Nigel Medlin and three co-conspirators kidnapped T.F. and two other victims based on a dispute over a stolen vehicle. After transporting T.F. to a fourth co-conspirator's home, they assaulted him by, among other things, using a heated piece of metal to burn and scar his shoulder and by pulling and breaking several of his teeth. Medlin and his co-conspirators released the three victims only after threatening them with death if they reported the assault.

A federal grand jury subsequently indicted Medlin and his co-conspirators for one count of kidnapping in violation of 18 U.S.C. § 1201(a)(1) and one count of brandishing, using, and carrying a firearm during a crime of violence in violation of 18 U.S.C. § 924(c). Medlin subsequently pleaded guilty to the kidnapping charge. 

In his PSR, the United States Probation Office recommended the District Court enhance his base offense level under the Guidelines by four levels pursuant to U.S.S.G. § 2A4.1(b)(2)(A), which applies “[i]f the victim sustained permanent or life-threatening bodily injur[ies]....” It argued the enhancement applied because T.F. lost teeth and suffered permanent scarring on his face due to the assault committed by Medlin and his co-conspirators.  

Medlin objected to this enhancement, arguing T.F.'s injuries did not constitute "permanent or life-threatening body" injuries because they did not fit the definition of the term set out in the Guidelines' commentary. In addition, he argued the commentary definitions unlawfully expanded upon the Guidelines provision, thus, preventing the District Court from enhancing his sentence. 

Adopting the PSR in full, the District Court denied Medlin's objections and concluded the Guidelines recommended a sentencing range of 210 to 262 months' imprisonment based on an adjusted offense level of 35 and a criminal history category III. It then sentenced Medlin to 220 months imprisonment. Medlin appealed his sentence, arguing it was procedurally unreasonable because the District Court erred in applying the four-level enhancement found in  U.S.S.G. § 2A4.1(b)(2)(A), and because it created an unreasonable disparity between his sentence and those of his co-defendants.

The Court rejected Medlin's arguments. It first held that U.S.S.G. § 2A4.1(b)(2)(A) was not ambiguous -- thus negating any need to refer to the commentary -- and applied where an an injury was permanent, i.e. where the affected area was "forever changed without the ability to return to what it once was...", or where it was "so serious as to actually threaten the victim's life...." Applying this definition, the Court held the District Court correctly applied the enhancement because T.F. suffered permanent injuries because his teeth and face would never return to their original conditions. Even if the enhancement was ambiguous, however, the Court held the relevant commentary would fall within any "zone of ambiguity" that existed, and that the commentary encompassed T.F.'s injuries. 

The Court also rejected Medlin's argument that the victim's injuries were not permanent because they could heal either naturally or with assistance, such as through surgery or teeth implants. Not so, said the Court. A "permanent injury," the Court held, was one that could not heal and return to its "original form" over time. Thus, since the victim could never get his original teeth back, and because he would have permanent scarring, his injuries were "permanent" under  U.S.S.G. § 2A4.1(b)(2)(A).

Rejecting Medlin's remaining argument regarding the disparity between his sentence and those received by his co-defendants, the Court held his sentence was procedurally reasonable. Thus, it affirmed his sentence.

Two set of brothers, two different First Step Act results

In United States v. Domenech, the Sixth Circuit added to its growing set of First Step Act opinions. There, two brothers again appealed the denial of their motions for sentence reductions under the First Step Act. The Sixth Circuit remanded for reconsideration–and granted reassignment to a new judge. 

This appeal was the second for the brothers. In their first round, the Sixth Circuit remanded because the district court failed to treat their reduced guidelines ranges as its initial benchmark. After that remand, the brothers re-briefed the issues and raised arguments about nonretroactive changes to the law. They were again denied, with the district court district court retaining their sentences, relying on the same justifications. On appeal, the Sixth Circuit remanded again, holding that under Concepcion v. United States, 142 S. Ct. 2389 (2022), the court failed to “consider and reason through” all reasonable arguments, including those about nonretroactive changes to the law. Because the district court had repeated its error, the Court granted the brothers’ request for reassignment, a rare remedy. 

Just a few weeks earlier, a different set of brothers raising a similar argument received a different result. In United States v. Woods, 61 F.4th 471 (6th Cir. 2023), the court denied the Woods brothers’ First Step Act appeals. Although the district court relied on the erroneous conclusion that they were career offenders, the issue wasn’t preserved and didn’t rise to the level of manifest injustice. 

 

Firearm Enhancements and Double Counting

           In United States v. Hitch, --- F.4th --- (6th Cir. 2023), https://www.opn.ca6.uscourts.gov/opinions.pdf/23a0013p-06.pdf the defendant, James Hitch, pleaded guilty to the theft of multiple firearms from a federally licensed firearms dealer (18 U.S.C. § 922(u)) and being a felon in possession of a firearm (§ 922(g)(1)). The parties agreed to an enhancement under U.S.S.G. § 2K2.1(b)(6)(B)) because Mr. Hitch possessed a firearm in connection with another felony but they reserved the right to argue for or against an enhancement under § 2K2.1(b)(4)(A)) for the number of stolen firearms.

          The PSR recommended grouping the counts together and that the district court apply the § 2K2.1(b)(6)(B) and the § 2K2.1(b)(4)(A) enhancements. The possession count had the higher offense level and thus determined the base offense level under § 2K2.1(a)(6)(A). The district court overruled Mr. Hitch’s objection that application of the two enhancements amounted to double counting.  

          The Sixth Circuit affirmed. Mr. Hitch argued on appeal that double counting occurred because the enhancements were based on the same conduct. The court, however, concluded that the § 2K2.1(b)(4)(A) enhancement punished Mr. Hitch for possession of the stolen guns while the § 2K2.1(b)(6)(B) enhancement punished him for stealing the guns. The court found no error because two sentencing enhancements can be imposed for the same conduct if they punish “distinct aspects” of the conduct. Slip Op. at 3.

          Mr. Hitch also argued that he not only pleaded guilty to the possession count (§ 922(g)(1)) but also to the theft count (§ 922(u)). The Sixth Circuit considered this to be “a second double-counting argument which relied “on the false premise that the § 922(u) count increased the base offense level in the first instance and through the § 922(u) conduct-related enhancements.” Slip Op. at 4. (Emphasis original). The court recognized that there “are instances in which multiple counts do increase a defendant’s offense level, and those instances could arguably result in double counting if enhancements were applied based on the same behavior.” Id. But here, as a result of grouping, the offense level was based on the possession count. The base offense level was not increased because of the § 922(u) conviction, i.e., “there was no multiple-count adjustment” and no double counting.

 

Two rare Fourth Amendment reversals in one day

It's rare for a federal appellate court to reverse a district court's denial of a motion to suppress evidence—the evidence must be viewed in the light most favorable to the government. But on Friday, the Sixth Circuit reversed suppression denials twice.

First, in a published decision, United States v. Loines, the Sixth Circuit found that police officers violated the Fourth Amendment when searching a vehicle. Officers suspected Mekhel Rivers of distributing drugs and obtained a search warrant for his house. While executing the warrant, officers saw Rivers's suspected vehicle parked on the street nearby. A detective walked up to the passenger side of the car and, through a tinted window, allegedly saw a cigar wrapper, "a folded piece of paper," and a small plastic bag that the officer claimed was "a bag of dope."

The defendant, Aaron Loines, was in the residence being searched. He told officers the keys to the vehicle outside were his. The vehicle was towed and searched without a warrant, revealing drugs. The government defended the search on grounds of the "plain view doctrine" and the "automobile exception" to the Fourth Amendment.

The Sixth Circuit concluded that officers had no valid reason to search the vehicle. In rejecting the plain view argument, the court concluded that, even though the officer claimed to have seen a bag of dope, objective evidence from photographs and body cameras did not substantiate his claim. The court stated: "Simple statements from the officers contending that they saw 'a bag of narcotics' in the car are not enough to establish that an object was in plain view when the screenshots that the government presented contradict the officers’ statements." Further, the court decided that, even assuming the officer could actually inside the car through the tinted windows, what he saw—cigar wrappers, folded paper, and a plastic bag—were not intrinsically incriminating.

The court then quickly dispatched with the government's automobile-exception argument. For that exception to apply, the officers needed to have probable cause to believe the vehicle contained evidence of a crime, and the officers' evidence here came only from their purported plain-view observations, which the court had already rejected as a basis for the search. The Sixth Circuit thus vacated Mr. Loines's conviction and remanded.

The second decision, unpublished, United States v. Grant, reaffirmed the Sixth Circuit's precedent that officers cannot search a house just because a suspected drug dealer rents it and visits it frequently. The case involved a search warrant that stated that Marlon Grant had visited a particular residence numerous times, for short periods of time, and that he rented it. The affidavit also stated that a confidential informant had conducted a controlled buy from Grant, though it did not say that it happened at the residence.

In finding the warrant failed to establish probable cause, the Sixth Circuit emphasized that the affidavit never alleged Grant dealt drugs from the address, or that he entered the building just before or after the controlled buy. The court also rejected later warrants as fruit of the poisonous tree.