Criminal: District court wrongly applied sentencing enhancements

Where the district court applied sentencing enhancements that penalized the defendant for unlawfully possessing firearms that played no role in the offense for which he was convicted, it erred.

Background

Stephen Simmons pled guilty to violating the National Firearms Act, or NFA, by possessing an unregistered “auto sear,” a device that enables semi-automatic firearms to fire at the same rate as machineguns. On the day of his offense, Simmons tested positive for methamphetamine and marijuana. Though Simmons was not prosecuted for any drug- related crime, the district court applied multiple sentencing enhancements that penalized Simmons for possessing the unregistered auto sear—as well as numerous additional auto sears, silencers and firearms—as an unlawful user of controlled substances. Unlawful users of controlled substances are prohibited by statute from possessing firearms.

Second Amendment

Simmons mounts a Second Amendment challenge to the district court’s application of the (a)(4)(B) Guideline, which penalizes “prohibited persons” for offenses involving NFA firearms. Simmons contests the imposition of the (a)(4)(B) Guideline by arguing that § 922(g)(3), which the (a)(4)(B) Guideline incorporates by reference, violates the Second Amendment under the test articulated in New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022).

This argument confuses the relationship between the two provisions. Simmons would continue to be a “prohibited person” within the meaning of the (a)(4)(B) Guideline regardless of whether § 922(g)(3) is found to violate the Second Amendment. That is because the definition of “prohibited person” for purposes of the (a)(4)(B) Guideline is determined on the basis of the referenced statutory definition at the time the relevant provision of the Sentencing Guidelines was enacted. Thus, unless and until a new Sentencing Guidelines Manual takes effect, the definition of “prohibited person” for purpose of the (a)(4)(B) Guideline includes “unlawful user[s] . . . of controlled substance[s]” such as Simmons regardless of the constitutional viability of § 922(g)(3).

Simmons’s challenge cannot succeed, then, unless the imposition of the (a)(4)(B) Guideline itself—which applies solely to prohibited persons in possession of NFA firearms—violated the Second Amendment as applied to Simmons. Yet Simmons concedes that the Second Amendment does not protect anyone‘s right to possess an NFA firearm. As a result, he has foreclosed any Second Amendment challenge to the (a)(4)(B) Guideline.

Vagueness

Simmons also argues that the application of the (a)(4)(B) Guideline violated his rights under the Due Process Clause of the Fifth Amendment. He contends that the phrase “unlawful user of . . . controlled substance[s]” in § 922(g)(3)—which is incorporated by reference in the (a)(4)(B) Guideline—is unconstitutionally vague.

This is not the first time this court has been asked to rule on the question of whether § 922(g)(3) is void for vagueness. In a case involving a similar challenge, this court explained that “when a defendant’s conduct falls squarely within the confines of the disputed statute, he abandons the right to challenge that statute for vagueness.”

Here, Simmons admitted that he had been using Adderall and methamphetamine for several months prior to his arrest. On the day of his arrest, he tested positive for methamphetamine and marijuana. On the basis of these facts, there can be no doubt that Simmons was an “unlawful user of . . . controlled substance[s]” at the time of his offense. Accordingly, his vagueness challenge is foreclosed.

Sentencing

The district court applied two sentencing enhancements. The (b)(1) enhancement penalizes the unlawful possession of multiple firearms; and the (b)(4)(A) enhancement penalizes the possession of stolen firearms. But in applying the (b)(1) and (b)(4)(A) enhancements, the district court penalized Simmons for unlawfully possessing firearms that played no role in the offense for which he was convicted.

Simmons was convicted of a single count of possessing an unregistered NFA firearm. In sentencing Simmons, however, the district court counted all firearms found in Simmons’s home at the time of his arrest toward the total number of firearms for the purpose of the (b)(1) enhancement. The stolen firearm that formed the basis of the (b)(4)(A) enhancement was also a non-NFA firearm unrelated to the offense of conviction. The district court thus erred in applying these enhancements.

Harmless error

Because the district court applied a significant downward variance from Simmons’s advisory range, the government contends that any error in the district court’s calculation was inconsequential. Because the record does not provide this court “with knowledge that the district court would have reached the same result even if it had decided the guidelines issue the other way,” it cannot find the error was harmless.

Vacated and remanded.

United States v. Simmons, Case No. 23-4607, July 7, 2025. 4th Cir. (Berner), from SDWVA at Huntington (Chambers). Lex A. Coleman for Appellant. Troy Daniel Adams for Appellee. VLW 025-2-248. 18 pp.