                                                                  [PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                              01/31/2000
                                                           THOMAS K. KAHN
                                                               CLERK
                                No. 98-5059

                     D. C. Docket No. 97-6142-CR-KLR




UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellee,

                                   versus

SCOTT T. JAMIESON,

                                                          Defendant-Appellant.




                 Appeal from the United States District Court
                     for the Southern District of Florida


                             (January 31, 2000)

Before COX and DUBINA, Circuit Judges, and KRAVITCH, Senior Circuit
Judge.

DUBINA, Circuit Judge:
      Appellant Scott Jamieson (“Jamieson”) appeals his 71-month sentence for

possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1).

Jamieson argues that the district court based his offense level upon an erroneous

interpretation of 18 U.S.C. § 921(a)(30)(A)(i). We agree. Therefore, we vacate

Jamieson’s sentence and remand this case for resentencing.



                               I. BACKGROUND

      A. Procedural History

      A federal grand jury in the Southern District of Florida returned an

indictment charging Jamieson with felonious possession of a firearm. Jamieson

entered into a written plea agreement with the government. Under the terms of the

plea agreement, Jamieson agreed to plead guilty to the indictment and the

government agreed to make a non-binding recommendation at sentencing that

Jamieson be awarded a three-point offense level reduction for acceptance of

responsibility under U.S.S.G. § 3E1.1.

      The district court accepted Jamieson’s guilty plea. To aid the district court

in sentencing, the Probation Officer prepared a pre-sentence investigation report

(“PSI”). Jamieson filed written objections to the PSI and specifically objected to




                                         2
the enhancement for possession of an allegedly stolen firearm. The government

filed no written objections.

      In a second addendum to the PSI, the probation officer agreed with

Jamieson’s objection and deleted the two-level enhancement for possession of an

allegedly stolen firearm. The probation officer further noted that the government

had “orally reported” objections to the PSI. The government argued that

Jamieson’s firearm was a prohibited semiautomatic assault weapon described in 18

U.S.C. § 921(a)(30), and therefore qualified him for the enhanced base offense

level of 22 pursuant to U.S.S.G. § 2K2.1(a)(3). The probation officer then

submitted a revised PSI reflecting the deletion of the two-level enhancement for

the allegedly stolen firearm, but increasing the base offense level by two levels

pursuant to § 2K2.1(a)(3). The PSI also reflected the 3-level adjustment for

acceptance of responsibility. These changes resulted in a total offense level of 21,

which was identical to the level set forth in the original PSI.

      At his sentencing hearing, Jamieson objected to the government’s oral

request for an enhancement of the base offense level due to his alleged possession

of a prohibited semiautomatic assault weapon. In an attempt to meet its burden of

proof, the government presented the testimony of firearms expert Agent Steve

Barborini of the Bureau of Alcohol, Tobacco and Firearms. According to Agent


                                           3
Barborini’s testimony, under current federal law, a semiautomatic rifle that can

accept a magazine of over five rounds is illegal if it has two or more of the

following: a protruding pistol grip, a bayonet lug or flash hider, a threaded barrel,

or a shroud designed so that the rifle could be gripped without one’s hand being

burned. Agent Barborini testified that the Norinco firearm at issue holds a 30-

round magazine and is a semiautomatic gas operated rifle. He further testified that

Norinco changed the way it manufactured the firearm at issue after Congress

passed a new law banning certain types of assault weapons. Finally, Agent

Barborini testified that, as a result of the redesign, the firearm at issue did not

possess two of the prohibited items, and thus, was a legal weapon.

      Even though Agent Barborini testified that the firearm at issue was not an

illegal semiautomatic assault weapon, the district court decided to apply the

enhancement of U.S.S.G. § 2K2.1(a)(3) because it interpreted 18 U.S.C. §

921(a)(30)(A)(i) to prohibit any semiautomatic assault weapon manufactured by

Norinco. We conclude that the district court’s interpretation of 18 U.S.C. §

921(a)(30)(A)(i) is incorrect. Neither the language of § 921(a)(30)(A)(i) nor the

legislative history supports such an interpretation.




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                           II. STANDARD OF REVIEW

      This court reviews the district court’s findings of fact for clear error and its

application of the sentencing guidelines to those facts de novo. See United States

v. Gallo, 195 F.3d 1278, 1280-81 (11th Cir. 1999); United States v. Tillmon, 195

F.3d 640, 642 (11th Cir. 1999).



                                  III. DISCUSSION

      Jamieson argues on appeal that the district court incorrectly interpreted 18

U.S.C. § 921(a)(30)(A)(i) in calculating his base offense level under U.S.S.G. §

2K2.1(a)(3). Specifically, Jamieson contends that although § 921 prohibits all

models of Norinco’s “Avtomat Kalashnikovs,” it does not prohibit all Norinco

weapons, as the district court concluded. Moreover, Jamieson underscores Agent

Barborini’s testimony that the firearm at issue was a legal weapon because it did

not have two or more of the features prohibited in § 921(a)(30)(B). The

government agrees with Jamieson’s position and confesses error.1

Notwithstanding the government’s admission of error, we feel compelled to briefly

address this first impression issue.


      1
               We appreciate the government’s candor in not only admitting that the
district court committed error, but also in acknowledging its contribution to the district
court’s confusion.
                                            5
      On September 13, 1994, Congress passed the Violent Crime Control and

Law Enforcement Act of 1994, Pub. L. No. 103-322, 108 Stat. 1796 (the “Violent

Crime Control Act”), in order to amend and expand various existing statutory and

regulatory provisions found in 18 U.S.C. §§ 921-930 relating to the manufacture,

distribution, and possession of certain weapons. See National Rifle Ass’n of

America v. Magaw, 132 F.3d 272, 277 (6th Cir. 1997); Navegar, Inc. v. United

States, 103 F.3d 994, 997 (D.C. Cir. 1997). Of significance to this appeal, the

1994 Violent Crime Control Act banned the manufacture, transfer, or possession of

semiautomatic assault weapons. See 18 U.S.C. §§ 922(v)(1), 922(w)(1). Title 18

U.S.C. § 921(a)(30) defines a “semiautomatic assault weapon” as one of the nine

specified firearms listed in § 921(a)(30)(A) or as a semiautomatic rifle that meets

certain requirements as listed in § 921(a)(30)(B). Section 921(a)(30)(A) provides:

      The term “semiautomatic assault weapon” means -

             (A) any of the firearms, or copies or duplicates of the
             firearms in any caliber, known as -
                    (i) Norinco, Mitchell, and Poly
                    Technologies Avtomat Kalashnikovs (all
                    models);
                    (ii) Action Arms Israeli Military Industries
                    UZI and Galil;
                    (iii) Beretta Ar70 (SC-70);
                    (iv) Colt AR-15;
                    (v) Fabrique National FN/FAL, FN/LAR,
                    and FNC;
                    (vi) SWD M-10, M-11, M-11/9, M-12;

                                          6
                    (vii) Steyr AUG;
                    (viii) INTRATEC TEC-9, TEC-DC9 and
                    TEC-22; and
                    (ix) revolving cylinder shotguns, such as (or
                    similar to) the Street Sweeper and Striker
                    12.

18 U.S.C. § 921(a)(30)(A)(i)-(ix). Congress passed § 921(a)(3)(A)(i)-(ix) in order

to ban the specific weapons listed therein, including in sub-section (i) “(all

models)” of Norinco “Avtomat Kalashnikovs.” In addition to banning certain

specific firearms, Congress enacted 18 U.S.C. § 921(a)(30)(B) to ban

semiautomatic rifles regardless of make, model, or identity of manufacturer, if they

had two or more of the proscribed characteristics listed in § 921(a)(30)(B).

      After passage of the Violent Crime Control Act, the Sentencing Commission

established a specific base offense level of 22 for felons, like Jamieson, who had

one prior felony conviction of a crime of violence and who were convicted of

being a felon-in-possession under 18 U.S.C. § 922(g)(1), if the offense involved a

firearm described in 18 U.S.C. § 921(a)(30). See U.S.S.G. § 2K2.1(a)(3). In

applying 18 U.S.C. § 921(a)(30) to Jamieson, the district court, without argument

to the contrary, mistakenly concluded that all Norinco weapons came within the

ambit of 18 U.S.C. § 921(a)(30)(A)(i). Accordingly, the district court decided that

the enhanced sentence provided in U.S.S.G. § 2K2.1(a)(3) was appropriate for the

Norinco firearm at issue.

                                           7
      We hold that the district court’s conclusion contradicts the language of §

921(a)(30) and the legislative history of the Violent Crime Control Act. Congress

narrowly crafted the assault weapons ban to limit the number of weapons being

banned. See H.R. Rep. No. 103-489, at 6 (1994), reprinted in 1994 U.S.C.C.A.N.

1801, 1803. Moreover, the provisions of the Violent Crime Control Act set forth

in 18 U.S.C. § 922 buttress the conclusion that not all Norinco weapons are illegal.

The Violent Crime Control Act “exempts certain weapons from its prohibitions, as

listed in § 922, Appendix A, and described in § 922(v)(3).” Magaw, 132 F.3d at

277. Appendix A to § 922 lists a variety of weapons manufactured by Norinco

which are not prohibited. Although the Appendix does not include Jamieson’s

firearm, the fact that a firearm is not listed in Appendix A does not mean that the

firearm is prohibited. See 18 U.S.C. § 922(v)(1)(3).

      In summary, we conclude that 18 U.S.C. § 921(a)(30) does not encompass

all Norinco weapons. Section 921(a)(30)(A)(i) only bans all models of Norinco

Avtomat Kalashnikovs. There was no testimony at sentencing, nor was it the

government’s position, that Jamieson’s weapon was an Avtomat Kalashnikov.

Moreover, Jamieson’s sentence could not be enhanced pursuant to § 921(a)(30)(B).

Section 921(a)(30)(B) includes only semiautomatic weapons, regardless of make,

which display two or more proscribed characteristics. At sentencing, the


                                          8
government stated that Jamieson’s weapon did not display two or more of those

prohibited characteristics. Therefore, the district court erred in concluding that all

Norinco weapons fit within the ambit of 18 U.S.C. § 921(a)(30)(A)(i), and in

subsequently applying the offense level in U.S.S.G. § 2K2.1(a)(3). Because

Jamieson’s sentence was based on an erroneous interpretation of the law, we vacate

his sentence and remand this case to the district court for resentencing consistent

with this opinion.

      VACATED and REMANDED.




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