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United States v. Grier

December 30, 2003

UNITED STATES OF AMERICA
v.
ABDUL GRIER, APPELLANT



On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 00-cr-00356-2) District Judge: Hon. Charles R. Weiner

Before: Sloviter, Ambro, and Becker, Circuit Judges

The opinion of the court was delivered by: Sloviter, Circuit Judge

PRECEDENTIAL

Argued June 30, 2003

OPINION OF THE COURT

Appellant Abdul Grier appeals from the judgment of conviction entered following his guilty plea to charges under several provisions of the National Firearms Act ("NFA").*fn1

Grier argues that the resulting sentence should be vacated because (1) Congress' enactment of the Firearms Owners' Protection Act of 1986 ("FOPA"), 18 U.S.C. § 922( o ), implicitly repealed the NFA provisions to which he pled guilty; (2) the NFA offends due process because it is unfair to convict a person for failing to register a firearm when the Government will no longer permit such a registration; and (3) the NFA is unconstitutional as it no longer functions as a revenue-raising mechanism within Congress' taxation power.

We have previously reviewed cases that touched upon the NFA after the FOPA's enactment but we have not directly examined the precise issues Grier raises here. See generally United States v. Rybar, 103 F.3d 273, 275 n.2 (3d Cir. 1996) (declining to comment on the district court's finding that enforcement of 26 U.S.C. § 5861(e) was unconstitutional); United States v. Palmieri, 21 F.3d 1265, 1275 (3d Cir.), vacated, 513 U.S. 957 (1994). Those issues are now directly before us.

I.

FACTS AND PROCEDURAL HISTORY

In April 2000, agents from the Bureau of Alcohol, Tobacco, and Firearm ("ATF ") learned that Grier and his two co-defendants, David Lewis and Cornelius Middleton, were manufacturing and selling homemade, fully-automatic machine guns. Thereafter, on April 11, 2000, Andre Brooks, an undercover ATF cooperator, purchased one machine gun from Lewis. At that time, Lewis suggested that he could sell Brooks additional guns in the near future. The following week, Brooks met Grier, Lewis, and Middleton in Grier's residence, where Brooks observed Grier and Middleton assembling several machine guns. The next day, Brooks purchased at Lewis' house three machine guns manufactured by Grier, for which Brooks paid $5,800.00 in prerecorded Government funds.

On April 28, 2000, Brooks purchased another machine gun from Lewis for $1,800.00, again paying in prerecorded Government funds. As Brooks was leaving, Grier appeared and offered to sell Brooks six additional machine guns that he was assembling. On May 23, 2000, Brooks went to Grier's residence to inspect the guns he had agreed to purchase. Brooks saw Grier, Middleton, and a young boy (later identified as juvenile "B") working on the machine guns, and arranged to meet with Grier on the following day to purchase the guns. On May 24, 2000, ATF agents intercepted and arrested Grier at the designated meeting place with three machine guns in his possession. ATF agents then executed search warrants for Grier's residence and found a full-scale firearms manufacturing room on the third floor. Agents recovered all tools and materials necessary to the production of automatic weapons, several machine guns and semi-automatic weapons in midproduction, and $500 of prerecorded Government funds that Brooks had used to purchase weapons.

A federal grand jury indicted Grier, Lewis, and Middleton with conspiracy to possess, transfer and make machine guns in violation of 26 U.S.C. §§ 5861(c), (e), and (f); three counts of making firearms in violation of 26 U.S.C. § 5861(f); two counts of possessing firearms in violation of 26 U.S.C. § 5861(c); three counts of transferring firearms in violation of 26 U.S.C. § 5861(e); and one count of possessing firearms by a convicted felon in violation of 18 U.S.C. § 922(g)(1). Grier, represented by court-appointed counsel, pled guilty to these charges. Some time thereafter, the District Court sentenced Grier to 144 months in prison. This sentence reflected both the enhancements for Grier's leadership roles in the various offenses and a reduction for his voluntary acceptance of responsibility.

On appeal, Grier does not challenge any of the above facts. Nor does he argue that his conduct did not fit within the language of the statutory provisions (all part of the NFA) for which he was indicted and to which he pled ...


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