Carl Folsom, III, Research and Writing Specialist (Julia L. O'Connell, Federal Public Defender, and Robert Ridenour, Assistant Federal Public Defender, on the briefs), Office of the Federal Public Defender, Eastern District of Oklahoma, Muskogee, OK, for Defendant-Appellant.
Gregory Dean Burris, Assistant United States Attorney (Linda A. Epperley, Assistant United States Attorney, on the brief), Office of the United States Attorney, Eastern District of Oklahoma, Muskogee, OK, for Plaintiff-Appellee.
Before HARTZ, HOLMES, and BACHARACH, Circuit Judges.
BACHARACH, Circuit Judge.
The Defendant, Mr. Richard Basnett, was convicted of unlawful possession of a firearm and sentenced to 37 months of imprisonment (with 2 years of supervised release). He appeals, arguing that the sentence was too long. When the trial court imposed the sentence, it relied on guidelines governing possession of at least eight firearms and possession of firearms in connection with a separate felony.
We must decide whether the district court had enough evidence to reasonably infer that Mr. Basnett possessed: (1) eight or more guns (other than antiques or those owned solely for hunting or collecting), and (2) at least one gun in connection with a separate felony. We conclude that the government had sufficient evidence to draw these inferences, and we affirm.
II. The Quantity of " Firearms "
Mr. Basnett does not deny that he possessed firearms, but does challenge the
number attributed to him. We reject this challenge.
A. The Quantity of Firearms
The threshold question is whether the district judge could reasonably infer the presence of at least eight " firearms" (as defined by federal statute). At sentencing, the district judge applied an enhancement based on a sentencing guideline requiring possession of at least eight firearms. This enhancement was supported by the testimony of Agent Ashley Stephens, who noted that officers had found ten guns in their first search of Mr. Basnett's home and four additional guns in a second search of the home. R. vol. 2, at 101-02. From this evidence, the district court could reasonably infer that Mr. Basnett had at least eight guns.
B. Whether the Firearms Were Antiques
The resulting question is whether the 8 guns are considered " firearms" for purposes of federal law. Mr. Basnett points out that a gun does not count if it is an antique. He is correct; thus, the question is whether there were at least eight non-antique guns in his home. See 18 U.S.C. § 921(a)(3) (2006).
This question requires us to determine which party bears the initial burden of producing evidence on whether the guns were antiques. We make that determination in the context of the federal statute defining " firearm."
The statute defines " firearm" to mean a weapon that can be readily " converted to expel a projectile," but " does not include an antique firearm." Id. This language leads both parties to pin the burden of proof on the other. The government states that because the statute provides an exclusion for antiques, characterization as an antique is an affirmative defense; Mr. Basnett states that because the statute provides an exclusion for antiques, the government must prove that the gun is not an antique.
We agree with the government based on our decision in United States v. Neal, 692 F.2d 1296 (10th Cir.1982), where we held that an exclusion (built into the statutory definition of a " firearm" ) involves an affirmative defense rather than an element of the government's prima facie case.
In United States v. Neal, the issue was whether a weapon constituted a " firearm" consisting of a " destructive device." See Neal, 692 F.2d at 1303. Like the law defining a " firearm," the law in Neal said what the term " destructive device" excluded: " The term, ‘ destructive device’ shall not include any device which is neither designed nor redesigned for use as a weapon." 26 U.S.C. § 5845(f) (1976). Because the law said what the term " destructive device" didn't include— rather than what it did include— the defendant argued that the issue involved an " element of the offense." Neal, 692 F.2d at 1303. We rejected this argument, treating the exclusion as an affirmative defense rather than as an element of the government's prima facie case. Id.
We cannot fathom a way to treat the exclusion in Neal as an affirmative defense and the exclusion here as an element of the government's prima facie case. In Neal and the present case, the underlying statutes contained nearly identical language. Both statutes said what the term (" firearm" or its subset, " destructive device" ) " shall not include." 26 U.S.C. § 5845(f) (1976); 18 U.S.C. § 921(a)(3) (2006). In Neal, we held that this language required us to treat the exclusion as an affirmative defense. There is no conceivable reason for us to treat the exclusions for " destructive devices" and " firearms" differently. Indeed, the definition of " firearm" expressly includes all " destructive
devices." 18 U.S.C. § 921(a)(3) (2006).
Every circuit court of appeals to consider the issue has treated the antique exception as affirmative defense. See Gil v. Holder, 651 F.3d 1000, 1005 n. 3 (9th Cir.2011) (" [E]very other circuit of which we are aware that has considered the § 921(a)(3) ‘ antique firearm’ exception in the criminal context, has treated it as an affirmative defense rather than an element of the crime." ); United States v. Lawrence, 349 F.3d 109, 122 (3d Cir.2003) ( " Every circuit court of appeals that has considered this issue has agreed that establishing that a weapon is an ‘ antique, firearm’ for purposes of §§ 921 and 922 is an affirmative defense...." ).
Were we writing on a clean slate, we would be inclined to follow the approach taken by these courts. Surely owners of antique guns are better equipped to prove that their guns are antiques than the government, which would otherwise bear the initial burden of producing evidence in every case to prove what a gun is not. See United States v. Mayo, 705 F.2d 62, 76 (2d Cir.1983) (holding that the defendant bore the burden of proving a gun's antique status in part because dealers or collectors of antique guns are " in a better position to place the [antique-gun] exception in issue" ); Lawrence, 349 F.3d at 121-22 (treating antique status as an affirmative defense in part because the government cannot be expected to address whether the gun is an " antique" when the defense did not establish the date of manufacture). But, we are not writing on a clean slate. We decided the issue in Neal, concluding that Congress created an affirmative defense when it said what a " destructive device" excluded.
In his reply brief, Mr. Basnett discounts the case law involving the definition of a " firearm," pointing out that we are dealing here with a sentencing enhancement rather than an issue involving guilt or innocence. Appellant's Reply Br. at 2-3, 6. But the guideline commentary expressly adopts the statutory definition of a " firearm." U.S. Sentencing Guidelines Manual § 2K2.1 cmt. n.1 (2011). We would have no logical basis to interpret the same statutory language one way in Neal and the opposite way for sentencing (as Mr. Basnett would have us do). Thus, we follow Neal in deciding that characterization as an antique is an affirmative defense rather than an element of the government's prima facie burden. See United States v. Spedalieri, 910 F.2d 707, 710 n. 3 (10th Cir.1990) (a panel cannot overrule circuit precedent).
Because characterization as an antique involves an affirmative defense, the defendant bears the initial burden of producing evidence. See Patterson v. New York, 432 U.S. 197, ...