United States District Court, N.D. Mississippi
ORDER OF FURTHER LEGAL AUTHORITY FOR BENCH RULING AT
February 8, 2017, Defendant Jason L. Moncrief (the
"Defendant") pled guilty to one count of knowing
possession of unregistered firearms, to include destructive
devices, in violation of 26 U.S.C. § 5861(d). Sentencing
was set for August 24, 2017. On May 17, 2017, the Defendant
filed an objection  to the Presentence Investigation
Report (the "PSR"). The Defendant objected to the
number of devices referenced in the PSR (eight), and further
objected to the classification of four of the named devices
as "destructive devices, " contending instead that
those particular devices were "overpressure devices,
" which the Defendant contends have not historically
been recognized as "destructive devices" pursuant
to 26 U.S.C. § 5861(d). The Defendant requested that the
Court hold an evidentiary hearing to determine the actual
number of devices possessed and the appropriate United States
Sentencing Guidelines range applicable to the case.
August 24, 2017, the sentencing hearing was held. On the
record, the Court overruled the Defendant's objections to
the PSR. The Court utilizes this means to provide further
legal authorities in support of its ruling on the
Defendant's objections to the PSR.
Fifth Circuit has stated:
The National Firearms Act, 26 U.S.C. § 5841, et
seq., defines the term "firearm" to include,
inter alia, a "destructive device." 26 U.S.C.
§ 5845(a)(8). "[A]ny explosive, incendiary, or
poison gas . .. bomb" is a "destructive
device." § 5845(f)(1)(A). A "destructive
device" also includes "any combination of parts
either designed or intended for use in converting any device
into a destructive device . .. and from which a destructive
device may be readily assembled." § 5845(f)(3). A
homemade explosive device is a prohibited destructive device
under § 5845(f) even if all of its individual components
may be possessed legally. United States v. Price,
877 F.2d 334, 337 (5th Cir. 1989). "Moreover,
unassembled components fit within the definition of a
destructive device if the defendant possesses every essential
part necessary to construct an explosive device, and if those
parts may be assembled readily." Id; see also United
States v. Wilson, 546 F.2d 1175, 1177 (5th Cir. 1977).
United States v. Hunn, 344 F.App'x 920, 921 (5th
Cir. 2009) (per curiam); see United States v. Swan,
259 F.App'x 656, 656 (5th Cir. 2007) (referring to four
hand-made explosive devices).The Fifth Circuit has found that
the presence of nails or tacks in the subject device can be
indicia of an explosive device. See United States v.
Waits, 581 F.App'x 432, 434-35 (5th Cir. 2014) (per
curiam) (citing United States v. Hammond, 371 F.3d
776, 780 (11th Ci. 2004)). Furthermore, in United States
v. Waits, 581 F.App'x 432 (5th Cir. 2014) (per
curiam), the Fifth Circuit found that despite the
defendant's argument that the objective features of the
device in question did not support a finding that it was
designed as a weapon, the device nonetheless functioned as a
weapon/destructive device. Id. at 435. The Fifth
Circuit stated: "Although the device did not contain
nails or tacks, it was designed so that the explosion of the
metal cylinder itself would release shrapnel. Regardless of
[defendant's] stated intent to use the device to blow up
stumps, its design demonstrates that it was an explosive pipe
bomb capable of releasing shrapnel, which meets the
definition of a destructive device." Id.
(citing United States v. Charles, 883 F.2d 355, 357
(5th Cir. 1989)). Similarly, in UnitedStates v.
Johnson, 152F.3d618, 621 (7th Cir. 1998), a case cited
by the Fifth Circuit in Waits, the devices at issue
were pipe bombs 10 inches long filled with explosive
components and having igniter or fuse attached. The Fifth
Circuit rejected the defendant's explanation that his
devices were poorly constructed and that he intended them to
be used only as a hoax and not as weapons, and holding that
the devices were useful only as weapons, given their
objective characteristics that included all the ingredients
necessary to make a destructive device, including shrapnel.
Johnson, 152 F.3d at 627-28. Also similar, in
Hunn, the Fifth Circuit found: "The record
demonstrates that [defendant's] device was designed to be
a weapon, contained explosives, could ignite, did ignite, and
was a bomb"; this supported a finding beyond a
reasonable doubt at trial that defendant "possessed a
'destructive device' within the meaning of the
National Firearms Act." United States v. Hunn,
344 F.App'x 920, 921 (5th Cir. 2009) (per curiam) (citing
United States v. Lewis, 476 F.3d 369, 377 (5th Cir.
on all of the foregoing, as well as the authority and
reasoning cited at the sentencing hearing in this cause, the
Court found that the Defendant had failed to meet his burden.
a PSR bears sufficient indicia of reliability to permit the
sentencing court to rely on it at sentencing. The defendant
bears the burden of demonstrating that the PSR is inaccurate.
United States v. Ollison, 555 F.3d 152, 164 (5th
Cir. 2009). Unlike trial convictions, "sentencing
factors need not be proved beyond a reasonable doubt, but
only by a preponderance of the evidence." United
States v. Camacho, 172 F.3d 866, 1999 WL 129651, at *1
(5th Cir. Feb. 1, 1999) (per curiam) (citing United
States v. Casto, 889 F.2d 562, 569-70 (5th Cir. 1989)).
United States Probation Service is tasked with the
responsibility of presenting all relevant information for the
Court's consideration in the sentencing process. The
information contained in the PSR was proved by a
preponderance of the evidence.
of the foregoing reasons, the Defendant's objections ...