                              In the

United States Court of Appeals
                For the Seventh Circuit

No. 12-2945

U NITED S TATES OF A MERICA,
                                                  Plaintiff-Appellee,
                                  v.

S TEVEN D OTSON,
                                              Defendant-Appellant.


              Appeal from the United States District Court
      for the Southern District of Indiana, Indianapolis Division.
     No. 1:11-cr-00056-WTL-KPF-1—William T. Lawrence, Judge.


       A RGUED M ARCH 5, 2013—D ECIDED A PRIL 4, 2013




 Before P OSNER, K ANNE, and W ILLIAMS, Circuit Judges.
  P OSNER, Circuit Judge. The defendant, arrested after
reportedly having assaulted a woman and pointed a
pistol at her, was prosecuted for being a felon in posses-
sion of a firearm in violation of 18 U.S.C. § 922(g)(1). He
was found guilty in a bench trial and sentenced to
188 months in prison. The only question presented by
his appeal is whether the pistol was a firearm, defined
(so far as bears on this case) as “any weapon (including
a starter gun) which will or is designed to or may readily
2                                               No. 12-2945

be converted to expel a projectile by the action of
an explosive,” or “the frame or receiver of any such
weapon.” §§ 921(a)(3)(A), (B). The pistol is a Hi-Point .380
caliber semi-automatic. It was certainly designed to be
a gun, and nothing else. But according to the pretrial
report of an expert at the Justice Department’s Bureau
of Alcohol, Tobacco, Firearms and Explosives, at the
time when the defendant possessed the gun it was inop-
erable because of “significant damage, missing/broken
parts, and extensive corrosion.” The expert testified
similarly at trial—testified that the gun was “damage[d]”
and had “corroded, missing and broken components
which make it inoperable.”
  The government has conceded that because of this
damage the gun could not “expel a projectile” at the time
the defendant possessed it and could not have been
“readily . . . converted” to be able to do so, either. To
restore the gun to firing condition would require that it
be disassembled and cleaned and the corroded and
missing parts replaced. All this would take an hour or
two for an expert in gun repair. It would take a novice
longer—if he could do it at all. The question for us
is whether nevertheless the defendant’s gun “is de-
signed” to expel a projectile by means of an explosive.
The district judge found that it is.
  There are two extreme positions regarding the
meaning of “is designed” in the statute. One, asserted
by the defendant, is that a gun that is seriously inop-
erable—that would require expertise in gun repair to
restore to operating condition—no longer is a “weapon”
No. 12-2945                                                 3

that “is designed . . . to expel a projectile by the action of
an explosive.” It would be so “designed” if its “character-
istics” had remained the same, but the severe damage
that it has sustained has changed those characteristics
and therefore the design. The opposite position, which
the government doesn’t quite espouse but doesn’t
disclaim either, is once a gun always a gun: anything
originally designed as a gun remains a gun no matter
how dilapidated it becomes, how difficult to restore
to operating condition—or even impossible.
  Neither extreme is plausible. A gun is still a gun—a
weapon designed to expel a projectile by means of ex-
plosive action—even though it is in bad condition and
can be restored to working condition only by a gun-
smith. See United States v. Rivera, 415 F.3d 284, 286 (2d
Cir. 2005); United States v. Yannott, 42 F.3d 999, 1006
(6th Cir. 1994); cf. United States v. TRW Rifle 7.62x51mm
Caliber, One Model 14 Serial 593006, 447 F.3d 686, 692
(9th Cir. 2006). The defendant confuses “design” with
“object” when he says in his brief that “the design [of
his gun] has been so altered that the original purpose
for which it was intended no longer exists.” The object
has been altered, but not the design. The change in the
gun resulting from the damage to it was, so far as
appears, unintentional; it was not the consequence of a
redesign. The brief is wrong when it says that because
“the gun was prevented from performing as it was origi-
nally designed to do,” its design has been altered. An
airplane is designed to fly; a defect in manufacture or
maintenance that prevents it from flying does not
alter its design.
4                                               No. 12-2945

  The defendant might but does not argue that the gun
was “redesigned” to be a weapon only of “intimidation,”
which is how he used it in the alleged assault. But there is
no evidence of a conscious design to make the gun inopera-
ble so that it could be used only to intimidate. Notice
that the statutory definition doesn’t require that the
felon possessing a gun have ammunition or access to
ammunition, though such absence renders the gun inop-
erable except as a club or an intimidator.
  But what if the gun is so damaged that it can’t be re-
stored? What if it’s just a heap of twisted metal barely
even recognizable as having once been a gun? No longer
useful for any purpose, even intimidation, although
no one had redesigned it to be something other than a
gun, such a piece of junk would not be a “weapon” within
the meaning of section 921, because, being incapable
of repair, it could never again harm anyone, except
maybe as a club. But almost any solid object can be used
as a club, yet we don’t call all solid objects weapons.
  Or suppose that what was once a gun has been con-
verted to a nonweapon, a cigarette lighter for example.
Concretely, what if—
No. 12-2945                                                 5

    PIETRO BERETTA U.S. 9 MM M9 C HROME P ISTOL
         L IGHTER, T OP P OPULAR M EN’S G IFT




was once a real Beretta (it wasn’t), but all its innards
have been removed and if you pull the trigger all that
happens is that the muzzle emits a tiny flame. Would a
felon who possessed such a lighter be a felon in posses-
sion of a firearm? Maybe he would be if what the
statute asked is whether the alleged weapon “was de-
signed . . . to expel,” but it doesn’t; it says “is designed.”
That implies the possibility of redesign. In our example
the gun lighter was originally designed to be a gun but
6                                                No. 12-2945

later it was redesigned to be a cigarette lighter. We
doubt that the statutory definition would fit that case,
see United States v. Rivera, supra, 415 F.3d at 287;
United States v. Reed, 114 F.3d 1053, 1058-59 (10th Cir.
1997) (dissenting opinion); United States v. Wada, 323
F. Supp. 2d 1079 (D. Or. 2004), although a complication
is that the statutory definition of “firearm” includes—
remember—“the frame or receiver of any such weapon.”
The frame or receiver (these are synonyms) is the
housing of the gun, which contains the magazine and
the trigger assembly—the operating parts. The gun
lighter might be the frame of a real gun, although we’re
inclined to think that it would not be the frame of a
“weapon” that was “designed” to shoot and so would
fall outside the statutory definition of a frame as a firearm.
   The government would be poorly served by the “once
a gun, always a gun” interpretation of “is designed” that
it flirts with—an interpretation that would read “is de-
signed” to mean “was originally designed.” For toy guns
are not infrequently redesigned to be real guns, Daniel
Macht, “Man Converts Super Soaker Squirt Gun into
Shotgun,” NBCNews, May 23, 2012, http://usnews.
nbcnews.com/_news/2012/05/23/11834176-man-converts-
super-soaker-squirt-gun-into-shotgun (visited March 29,
2013); Diane Macedo, “Toy Gun Sold in U.S. Can Easily
Be Converted to the Real Thing,” Fox News, May 14, 2010,
www.foxnews.com/us/2010/05/06/exclusive-toy-gun-sold-
easily-turned-real-thing (visited March 29, 2013), and
surely the government doesn’t think that a felon who
owns a gun that started life as a toy gun but now shoots
real bullets can’t be convicted of being a felon in posses-
No. 12-2945                                            7

sion. The gun in this case, although in bad condition,
neither was redesigned to be something other than a gun
nor is so badly damaged that it can no longer be regarded
as a weapon designed to fire bullets. And just as a very
ill person can look entirely normal on the outside, the
outward appearance of the defendant’s gun is normal.
Designed to be a gun, never redesigned to be something
else, not so dilapidated as to be beyond repair, the
gun fits the statutory definition and the judgment must
therefore be
                                              A FFIRMED.




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