Sentencing Enhancements Based on Second Amendment-Protected Conduct

In many Second Amendment cases, the Constitution is raised as a direct defense to criminal charges or invoked in a pre-enforcement posture to challenge a state or federal statute.  However, the Second Amendment can also make an appearance after a defendant has been convicted of a crime.  In United States v. VanOchten, the Sixth Circuit Court of Appeals confronted a criminal defendant’s argument that a sentencing enhancement for being a prohibited gun possessor under federal law violated his constitutional right to keep arms.  The panel upheld the enhancement after addressing the complex interplay between constitutional rights and the federal sentencing guidelines, where defendants are often sentenced based on conduct related to (but not part of) the underlying offense of conviction.  VanOchten demonstrates how constitutional uncertainty can have far-reaching effects throughout the criminal justice system. 

VanOchten involves the criminal prosecution of a Michigan man arrested after law enforcement officers received a report that he was firing a gun in his backyard.  While VanOchten claimed he was firing at birds, he also happened to be discharging the weapon in the direction of a large propane tank.  VanOchten was intoxicated and high on marijuana when officers arrived; he also later admitted to habitually using marijuana.  A subsequent search of the property uncovered additional firearms, ammunition, and three operable pipe bombs.  VanOchten was convicted under state law for possessing a firearm while intoxicated.  He was also charged federally for possessing the pipe bombs, which constitute “destructive devices” that are considered “firearms” and must be registered under the NFA.  VanOchten pled guilty to the charge of possessing an unregistered destructive device, and the federal case proceeded to sentencing. 

The probation officer who prepared VanOchten’s pre-sentence report calculated a base offense level of 20 under the federal advisory sentencing guidelines. The relevant guidelines provision sets a base offense level of 18 for any offense “involv[ing] a firearm described in 26 U.S.C. § 5845(a),” which includes “destructive devices” such as VanOchten’s pipe bombs that constitute NFA “firearms.”  However, the guidelines then state that the base offense level shall be 20 if the defendant “was a prohibited person at the time the defendant committed the instant offense.”  The probation office concluded that VanOchten was a prohibited person—the sentencing guidelines cross-reference 18 U.S.C. § 922(g), and the officer concluded that VanOchten was prohibited from possessing guns when he was arrested under 922(g)(4) as an unlawful user of marijuana.  VanOchten had minimal criminal history and fell within category I.  Thus, under the Sentencing Guidelines table, applying the prohibited-person enhancement raised his recommended sentence from 33-41 months to 46-57 months. 

VanOchten filed an objection to the pre-sentence report and argued that the Second Amendment precluded application of the enhancement because, “historically understood, [it] prevents Congress from disarming marijuana users.”  The district judge denied this objection and sentenced VanOchten to 52 months in prison, and VanOchten subsequently lodged an appeal with the Sixth Circuit.

The panel first noted that, in “a procedural reasonableness challenge to [a] sentence,” an appellate court reviews for abuse of discretion but also gives de novo review to any necessary legal conclusions.  Proceeding to evaluate VanOchten’s as-applied Second Amendment argument, the panel applied the framework set forth in United States v. Williams.  There, while rejecting a Second Amendment challenge by a convicted felon to a 922(g)(1) charge, the circuit also clarified that (a) as a textual matter, the Second Amendment’s protections apply at a threshold level to felons, drug users, and other similar categories, (b) the constitutionality of modern class-based prohibitions should be evaluated categorically by reference to history, and (c) individual offenders should be allowed to demonstrate whether they fall within historically-supported categories.  At the first Bruen step, the panel relied on Williams and found that “VanOchten remains a member of ‘the people’ protected by the Second Amendment, despite his marijuana use” and that application of the sentencing enhancement based on 922(g)(3) infringed VanOchten’s constitutional rights because it penalized him for possessing firearms.

At step two, the panel noted that it was the government’s burden to show that applying 922(g)(3) in VanOchten’s situation is consistent with historical tradition.  The panel rejected the government’s suggestion that, because Congress is entitled to disarm drug users as a class, no individual drug user can successfully challenge the application of such a ban.  Rather, relying on Williams, the panel emphasized that “individuals must have a reasonable opportunity to prove that they don’t fit the class-wide generalization.”  Thus, the burden shifted to VanOchten to show that he was not dangerous.  The panel cited decisions from the Eighth and Fifth Circuits holding that “drug users could be disarmed under § 922(g)(3) if they were dangerous because of their particular characteristics—gleaned from their criminal history and other relevant information. 

Thus, to the panel, the ultimate question was whether VanOchten himself was dangerous—or, whether his drug use was connected to dangerous conduct or posed a risk of harm to others.  This case, the panel said, “falls on the easy side of the line” because VanOchten “misused his gun in a way that could ‘have caused a major explosion,’ injuring himself or harming the person or property of another” and thus “posed ‘a significant threat of danger’ to himself and others.”  VanOchten further argued that the government was required to show that any dangerous tendencies were specifically tied to drug use—rather than, say, alcohol use or other issues.  The panel rejected this argument, noting that “th[e] historical principle derived from Williams does not require the government to tie someone’s danger to his membership in a disarmed group” but rather considers the entirety of the defendant’s criminal record and characteristics.  And moreover, the panel said, VanOchten’s drug use was a direct contributing factor to his dangerous conduct because he was high when he shot at the propane tank.  The panel upheld VanOchten’s sentence, while also noting that it was leaving questions about 922(g)(3)’s operation in other contexts—namely, when an individual’s behavior presents a more attenuated risk of public danger—for another day. 

VanOchten demonstrates how continued post-Bruen uncertainty about the constitutionality of status-based prohibitions can have far-reaching consequences.  Here, VanOchten was not charged in federal court with violating 922(g)(3)—and it’s possible the government specifically focused on the destructive-device NFA charge to avoid any constitutional uncertainty.  However, because of how the relevant sentencing guidelines operate, the probation officer was nevertheless forced to confront the prohibited-status issue and make a judgment call that triggered a constitutional challenge. 

The panel’s discussion of whether dangerousness must be specifically tied to membership in a prohibited class is also potentially important.  The panel here parsed law from various circuits to conclude that such a connection is not required—despite language from the Fifth Circuit’s decision in Connelly that the panel said arguably might have supported such a requirement (there, the Fifth Circuit noted that “the government had not shown how the defendant’s marijuana use predispose[d] her to armed conflict or that she ha[d] a history of drug-related violence”).  The VanOchten panel concluded that the Fifth Circuit subsequently clarified this statement Daniels by expanding the inquiry to include criminal history and other relevant conduct. 

The connection between dangerousness and the specific prohibited status in question, however, may be a future pressure point that could result in a circuit split—with some circuits potentially concluding that the government is required to show a connection between the relevant prohibited status and dangerous proclivities.  That would be a much more restrictive test, especially for cases involving drug use.  And it seems to diverge from the as-applied felon cases where the defendant’s entire record (both criminal history and subsequent conduct) is considered when it might be a mitigating factor.  Similarly, then, the defendant’s full history should be considered when it might indicate dangerousness.