Appeal from the United States District Court for the District of Oregon. D.C. No. CR-91-364-01-OMP. Owen M. Panner, Chief District Judge, Presiding.
Before: Thomas Tang, Cecil F. Poole, and Pamela Ann Rymer, Circuit Judges. Opinion by Judge Tang.
Defendant Edmund Miller Goodell appeals from his sentence after pleading guilty to being a convicted felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). Specifically, Goodell objects to the two-point sentencing enhancement for possession of a stolen firearm because he had no knowledge that the weapon was stolen. Goodell argues that the enhancement violates due process because punishment traditionally requires mens rea and strict liability in this instance is not rationally related to any government goal. We have jurisdiction under 28 U.S.C. § 1291, and affirm.
Goodell's plea agreement specified that one of the weapons Goodell possessed was stolen. The district court applied a two-point enhancement for possession of a stolen weapon pursuant to U.S.S.G. § 2K2.1(b)(2) (1990)*fn1, which requires an increase "if the firearm was stolen, or had an altered or obliterated serial number." Goodell objected to the enhancement, contending that he did not know the gun was stolen. The government admits that there is no evidence that Goodell knew the gun was stolen.
The plain language of § 2K2.1(b)(2) does not require scienter:
§ 2K2.1(b)(2) does not distinguish between defendants who participate in or are aware of the theft of a firearm and defendants who use stolen firearms. The Guidelines simply provide for an increase when the firearm is stolen. Our court has stated that "we construe the terms in the Sentencing Guidelines using their plain meaning."
United States v. Peoples, 904 F.2d 23, 25 (9th Cir. 1990) (citation omitted). See also United States v. Schnell, 982 F.2d 216, 217 (7th Cir. 1992) (enhancement for stolen firearm does not require mens rea); United States v. Mobley, 956 F.2d 450, 452, 459 (3rd Cir. 1992) (same); United States v. Singleton, 946 F.2d 23, 27 (5th Cir. 1991), cert. denied, 117 L. Ed. 2d 465, 112 S. Ct. 1231 (1992) (same); United States v. Taylor, 290 U.S. App. D.C. 358, 937 F.2d 676, 682 (D.C. Cir. 1991) (same); United States v. Anderson, 886 F.2d 215, 216 (8th Cir. 1989) (same).
Although "the existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence," United States v. United States Gypsum Co., 438 U.S. 422, 436, 57 L. Ed. 2d 854, 98 S. Ct. 2864 (1978) (quotation omitted), and "far more than the simple omission of the appropriate phrase from the statutory definition is necessary to justify dispensing with an intent requirement," id. at 437-38, legislative history may provide evidence that the omission of scienter is deliberate. See United States v. United States Dist. Ct. for the Central Dist. of Cal., 858 F.2d 534, 538 (9th Cir. 1988). The history of the sentencing enhancement for possession of a stolen weapon provides ample support for the Conclusion that the omission of scienter was deliberate.*fn2
A statute may provide criminal liability without mens rea consistent with due process if it is a regulatory measure in the interest of public safety. See United States v. Freed, 401 U.S. 601, 609, 28 L. Ed. 2d 356, 91 S. Ct. 1112 (1971) (statute prohibiting the possession of an unregistered firearm does not require specific intent since it was "a regulatory measure in the interest of the public safety, which may well be premised on the theory that one would hardly be surprised to learn that possession of hand grenades is not an innocent act."). Similarly, Goodell would not be surprised to learn that possession of a firearm, whether stolen or not, is not without penal consequences, given that an ex-felon may not legitimately possess any firearm.*fn3
The strict liability enhancement for possession of a stolen firearm is rationally related to the legitimate governmental goal of crime prevention: § 2K2.1(b)(2) was promulgated on the premise that "stolen firearms are used disproportionately in the commission of crimes." Mobley, 956 F.2d at 454, citing, U.S.S.G. § 2K2.1(b)(2), comment. Further, an ex-felon who obtains a stolen firearm is more culpable than one who legally obtains a firearm. Mobley, 956 F.2d at 454. See also Schnell, 982 F.2d at 221 ("The Sentencing Commission's decision to place upon a felon the burden of inquiring into the condition of any weapon that he unlawfully obtains was not inconsistent with the manifestations of Congressional intent ...