United States v. Thomas, No. 09-4335-cr (2d Cir. December 16, 2010) (Jacobs, Kearse, Straub, CJJ)
The circuit has twice upheld strict liability nature of the “stolen gun” enhancement, currently codified as U.S.S.G. § 2K2.1(b)(4)(A). Here, the defendant raised the issue again, arguing that Apprendi and its progeny have undermined the circuit precedent on this point, and also made an equal protection claim.
The circuit affirmed. Apprendi does not apply because the enhancement does not alter the statutory maximum penalty, and the Booker line does not affect the analysis, because those cases “concern the advisory nature of the Guidelines” and not “the validity of any particular guideline.”
Thomas also argued that “emerging data” indicated that many firearms are erroneously reported stolen and that this should cause the court to revisit the issue. The court disagreed, finding that this data “actually reinforce[d]” the existing rule. Guns that are falsely reported as stolen after being sold to ineligible persons or straw purchasers are “more likely to end up in the hand of a criminal.”
Thomas’ equal protection argument pointed out that an the guideline covering explosives only enhances the sentence if the defendant “knew or had reason to believe” that the explosives were stolen. But the circuit found “rational basis” for the distinction. Even though explosives are more dangerous than firearms on an “individualized basis,” stolen firearms are more readily obtainable by felons and “therefore more deadly than stolen explosives in the aggregate.” Thus, because there is a “reasonably conceivable state of facts” to support the distinction between stolen firearms and stolen explosives, the equal protection challenge fails.