Decided: October 1, 2013
The Fourth Circuit held that the government presented sufficient evidence to convict Thomas Royal (“Royal”) of possession of ammunition by a prohibited person, in violation of the federal Gun Control Act (“the GCA”), 18 U.S.C. § 922(g)(1); that the United States District Court of the District of Maryland properly instructed the jury on the meaning of the phrase “knowingly possessed ammunition”; and that the district court erroneously applied the modified categorical approach when determining whether Royal’s second-degree assault conviction qualified as a violent felony under the Armed Career Criminal Act (“the ACAA”), 18 U.S.C. § 924(e). The Fourth Circuit therefore affirmed the decision of the district court in part, vacated the decision in part, and remanded the case for resentencing.
On January 8, 2009, a police officer and a detective recovered an antique Iver Johnson revolver (“the antique revolver”) from Royal’s car. The antique revolver was loaded with five .32 caliber bullets. The government charged Royal with possession of ammunition by a prohibited person, as Royal had previously been convicted of a crime punishable by more than a year in jail, and the GCA therefore prohibited him from knowingly possessing “any firearm or ammunition” that has passed through interstate commerce. Under the GCA, the term “firearm” does not include antique firearms manufactured before 1898; “ammunition” denotes “ammunition . . . designed for use in any firearm.” 18 U.S.C. § 921(a)(3), (a)(16)(A), (a)(17)(A).
At trial, the evidence demonstrated that the rounds were .32 caliber bullets manufactured by the companies Remington and Winchester. The government did not present specific evidence on the rounds’ design; additionally, though Royal cross-examined an expert witness on the manufacture dates of the rounds, he did not otherwise raise the issue of design. Royal subsequently moved for a judgment of acquittal under Federal Rule of Criminal Procedure 29, arguing that the government did not provide sufficient evidence to support a guilty verdict. The district court denied the motion. After closing arguments, the district court instructed the jury on the mens rea component of the alleged violation, explaining, “whether the defendant acted knowingly . . . means [whether] he knew that the ammunition was ammunition as we commonly use the word.” The jury found Royal guilty of violating 18 U.S.C. § 922(g)(1). During the sentencing phase, the government asserted that Royal was subject to a mandatory minimum sentence of fifteen years, as he had three prior convictions “for a violent felony or serious drug offense,” 18 U.S.C. § 924(e)(1). Royal argued that his conviction for second-degree assault under Maryland’s assault statute did not constitute a “violent felony” under the categorical approach. However, the district court applied the modified categorical approach, finding that Royal’s second-degree assault conviction was a violent felony. The district court sentenced Royal to fifteen years and eight months in prison.
On appeal, Royal argued that the government did not meet its burden of proving that the bullets were designed for use in any non-antique firearm; that the district court plainly erred by failing to instruct the jury that, to have the requisite mens rea, Royal had to have known that the bullets were designed for use in a non-antique firearm; and that the district court erroneously applied the modified categorical approach during the sentencing phase.
The Fourth Circuit concluded that the antique firearm exception to the GSA—in this case, the firearm exception as applied to the definition of ammunition in 18 U.S.C. § 921(a)(17)(A)—is an affirmative defense that the defendant must raise and support by evidence. The Fourth Circuit found that Royal did not satisfy his burden of raising this defense. With regard to the jury instructions, the Fourth Circuit found that the district court “adequately informed the jury that, to sustain a conviction, Royal needed to have knowledge of those facts that brought the rounds in this case within that legal definition.” Lastly, the Fourth Circuit noted that in Descamps v. United States, 133 S. Ct. 2276, the Supreme Court held that, when assessing a defendant’s prior convictions for purposes of sentencing under the ACCA, courts cannot apply the modified categorical approach to indivisible criminal statutes. The Fourth Circuit found that the applicable Maryland assault statute was indivisible, as it did not contain alternative elements that could be used to prove an offense.
– Stephen Sutherland