                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 04-1576
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the Southern
                                         * District of Iowa.
Charles William Ray,                     *
                                         *
             Appellant.                  *
                                    ___________

                              Submitted: October 19, 2004
                                  Filed: June 14, 2005
                                  ___________

Before MORRIS SHEPPARD ARNOLD, BOWMAN, and RILEY, Circuit Judges.
                         ___________

MORRIS SHEPPARD ARNOLD, Circuit Judge.

      Charles Ray entered a conditional guilty plea to one count of possession of a
firearm after a misdemeanor conviction for a crime of domestic violence. See Fed R.
Crim. P. 11(a)(2); 18 U.S.C. § 922(g)(9). Consistent with the plea's condition,
Mr. Ray appeals the decision of the district court1 that the warning on his federal
firearm license (FFL) was insufficient as a matter of law to support an estoppel-by-
entrapment defense. He also appeals the district court's determination of his sentence.
We affirm.

      1
       The Honorable Robert W. Pratt, United States District Judge for the Southern
District of Iowa.
                                           I.
       Mr. Ray, who was a federally-licensed firearms dealer, contends that the FFL
supported an estoppel-by-entrapment defense. The FFL contains a warning which
begins, "This license is not a permit to carry a concealed weapon, nor does it confer
the right or privilege to conduct business contrary to State law or any other law."
Following this statement are six conditions (e.g., being a fugitive from justice or an
unlawful drug user) that cause the license holder to be "prohibited from engaging in
the business otherwise authorized by this license." The warning does not state
whether the list of conditions is exhaustive or illustrative.

       After Mr. Ray obtained his FFL, he was convicted in state court of
misdemeanor domestic assault. Federal law prohibits a person who "has been
convicted in any court of a misdemeanor crime of domestic violence" from possessing
a firearm. 18 U.S.C. § 922(g)(9). When the Bureau of Alcohol Tobacco and
Firearms got word that Mr. Ray had a number of firearms stored in his apartment,
agents obtained and executed a search warrant and found seventy-two guns.

      A grand jury returned a one-count indictment charging Mr. Ray with violating
§ 922(g)(9). Mr. Ray informed the government that he planned to assert an estoppel-
by-entrapment defense at trial. The substance of his planned defense was that the
warning on the FFL indicates that it is legal for him to possess a firearm because it
does not say that a person convicted of a misdemeanor crime of domestic violence
cannot possess one. The government filed a motion in limine asking the court to bar
Mr. Ray from introducing any evidence about his FFL. It argued that the parties
agreed on the relevant facts and that these facts did not suffice to support the
estoppel-by-entrapment defense or Mr. Ray's proposed jury instruction on that
defense.

      The court denied the government's motion. It decided that Mr. Ray could
introduce some evidence about his FFL, but stated that, if requested by the

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government, it would "explain to the jury by a limiting instruction that the defendant
had no right to rely on the FFL in possessing the firearms." Relatedly, the court
concluded that the FFL did not suffice to justify submitting an instruction on estoppel
by entrapment to the jury. It acknowledged, though, that an entrapment instruction
would be appropriate if "the evidence at trial in contrast to the record presented on
this motion shows a government official or agency made affirmative misstatements
on which the defendant relied."

       Mr. Ray entered a conditional guilty plea. See Fed. R. Crim. P. 11(a)(2). The
rule provides that "[w]ith the consent of the court and the government, a defendant
may enter a conditional plea of guilty ... reserving in writing the right to have an
appellate court review an adverse determination of a specified pretrial motion." Id.
Mr. Ray's plea reserved the right to appeal the district court's decision that his
proposed defense was untenable.

       Before turning to the merits of Mr. Ray's appeal, we address the government's
assertion that the district court's ruling on the motion in limine was not a ruling on a
pretrial motion within the meaning of Rule 11(a)(2). The government offers two
arguments to support this contention. The first is that the judge's decision on the
defense and the instruction was not a definitive ruling. The government does not
embellish this argument beyond providing a long excerpt from the district court's
ruling on the motion in limine. Presumably, though, the government means to imply
that a ruling which is not definitive is not an "adverse determination" under
Rule 11(a)(2). Its second argument is that "it is impossible to meaningfully assess the
impact of a potential jury instruction when there was no trial and no evidence
considered by the jury"; i.e., as the government otherwise puts it, "[h]ad the case gone
to trial, it is possible that Ray might have decided not to put on any testimony ...
regarding his alleged intention to argue his reliance on the ... FFL, in which case the
entire issue would have been irrelevant."



                                          -3-
       We see two arguments in support of the proposition that the court's ruling was
not definitive. The first is that the court mentioned that a defense of estoppel by
entrapment might be available on a different record. But the fact that the court
admitted that it might decide the issue differently if the defendant were to produce
different evidence does not mean that the court did not render a definitive ruling
based on the evidence before it. The second argument is that the court equivocated
because it stated that it would instruct the jury that the defendant had no right to rely
on the FFL only if the government requested that it to do so. Whether this statement
is equivocal is irrelevant, however, because the judge unequivocally stated that he
would not instruct the jury on Mr. Ray's proposed defense, and a judge's refusal to
instruct a jury on a defense is the equivalent of holding that a defense is untenable.
See United States v. Benning, 248 F.3d 772, 775 (8th Cir. 2001), cert. denied,
534 U.S. 922 (2001); United States v. Santiago-Godinez, 12 F.3d 722, 726 (7th Cir.
1993), cert. denied, 511 U.S. 1060 (1994).

        Rule 11(a)(2) forecloses the government's argument that Mr. Ray's appeal is
speculative. The gist of the government's argument is that the appeal is based on
speculation about what might have happened at trial and so is not an appropriate
subject for review. This argument misses the mark. Mr. Ray's appeal is based on a
legal decision that the district court made on a pretrial motion, not on what he thinks
might have happened at trial. Rule 11(a)(2) expressly permits defendants to appeal
from pretrial motions. The appeal is speculative only to the extent that any issue
decided in a motion in limine is speculative (i.e., because it might not have arisen at
trial). Rule 11(a)(2) establishes, however, that issues decided in motions in limine
are not inherently too speculative for appeal. In fact, many appellate courts have,
pursuant to this rule, reviewed district courts' pretrial decisions on the availability of
defenses. See, e.g., Benning, 248 F.3d at 775; Santiago-Godinez, 12 F.3d at 725.

       We turn now to the merits of Mr. Ray's appeal. In order to present a defense
of estoppel by entrapment, Mr. Ray would have to show that the government assured

                                           -4-
him that certain conduct was legal and that he initiated or continued that conduct
because he reasonably relied on the government's statement. United States v. Achter,
52 F.3d 753, 755 (8th Cir. 1995). The government must have affirmatively misled
the defendant for the defendant to put forth a viable defense of entrapment by
estoppel; an incomplete explanation of the law does not suffice. Benning, 248 F.3d
at 775-76.

       Mr. Ray maintains that the warning on the FFL affirmatively misstates the law
for purposes of estoppel by entrapment. The difficulty with the warning, he argues,
is that it does not state that the six listed conditions are illustrative, rather than
exhaustive, and people presume that the express mention of things excludes any other
things which are not mentioned.

       (The parties gloss over the fact that the license refers to whether the licensee
may "engag[e] in the business" of selling firearms, and not whether he or she may
possess them. We assume that they do so based on the idea that the greater includes
the lesser; that is, if the license declares that Mr. Ray is allowed to buy and sell these
weapons, then it also implicitly instructs him that he is allowed to possess them. We
assume that the parties' position on this matter is reasonable.)

        We hold that the FFL does not support an estoppel-by-entrapment defense.
Stripped to its core, Mr. Ray's argument is that the warning on the license does not
sufficiently explain the law, i.e., the warning does not state that the list of conditions
is illustrative rather than exhaustive. But as we have said, an incomplete explanation
of law cannot support an estoppel-by-entrapment defense. Benning, 248 F.3d at 776.
The reason is that contrary to Mr. Ray's suggestion, it is not the law that a person is
presumed to know what is illegal based only on what the government tells him.
Rather, people are generally presumed to be aware of the criminal laws. See Cheek
v. United States, 498 U.S. 192, 199 (1991). For Mr. Ray to have a viable defense of
entrapment by estoppel, then, there must have been an affirmative misrepresentation.

                                           -5-
See Benning, 248 F.3d at 775. There was no affirmative misrepresentation here: The
license does not say that a person who has been convicted of a misdemeanor crime
of domestic violence can possess a firearm (or anything like that).

       The Ninth Circuit's holding in United States v. Ramirez-Valencia, 202 F.3d
1106, 1109 (9th Cir. 2000) (per curiam), cert. denied, 531 U.S. 892 (2000), is
instructive here. In that case, the defendant returned to the United States more than
five years after being deported, and he maintained that he did so in reliance on an
Immigration and Naturalization Service form. The form stated that "any deported
person who within five years returns without permission is guilty of a felony." Id.
It did not say that returning more than five years after being deported is a felony,
though it is. See 8 U.S.C. § 1326. The court held that the form did not contain an
affirmative misstatement sufficient to establish estoppel by entrapment because it "did
not expressly tell the defendant that it was lawful for him to return to the United
States after five years." Ramirez-Valencia, 202 F.3d at 1109. We think that this
reasoning is sound.

                                        II.
      We next address the two sentencing issues raised by this case. The first is
whether the district court plainly erred when it sentenced Mr. Ray pursuant to
U.S.S.G. § 2K2.1(a)(4)(B). The second is whether the district court plainly erred by
sentencing Mr. Ray pursuant to the mandatory guideline regime instead of the
advisory regime established in United States v. Booker, 125 S. Ct. 738 (2005).

      Section 2K2.1(a)(4)(B) of the sentencing guidelines calls for a base offense
level of 20 if a person prohibited from possessing firearms possessed a firearm
"described in ... 18 U.S.C. § 921(a)(30)," which, after Mr. Ray was sentenced, passed
out of the United States Code as a result of the sunset provision in the so-called
assault-weapons ban of which it was a part. Section 921(a)(30) described
"semiautomatic assault weapon[s]," like Kalashnikovs and UZIs. 18 U.S.C.

                                         -6-
§ 921(a)(30) (2000). The indictment lists the weapons that Mr. Ray possessed,
including five firearms that were described by § 921(a)(30). At his change-of-plea
hearing, Mr. Ray admitted that he possessed all of the weapons listed in the
indictment. The district court therefore set Mr. Ray's base offense level at 20.

       Mr. Ray argues that the court erred because § 2K2.1(a)(4)(B) applies only to
individuals who possessed assault weapons that were illegal under the (now defunct)
assault-weapons ban, and his were not. Under 18 U.S.C. § 922(v)(1) (2000), a
provision of the ban, it was a crime to possess assault weapons of the type described
in § 921(a)(30). Section 922(v)(2) provided, however, that "[p]aragraph [v](1) shall
not apply to the possession ... of any semiautomatic assault weapon otherwise
lawfully possessed under Federal law on the date of the enactment of this subsection."
In other words, if a person lawfully possessed the assault weapon at the time that
§ 922(v)(1) was enacted, then there was no crime. Mr. Ray contends that he lawfully
possessed all five of the semiautomatic assault weapons when § 922(v)(1) was
enacted, and as such did not violate that statutory provision. Since he did not violate
§ 922(v)(1) by possessing these firearms, he continues, it makes no sense to increase
his punishment for possessing them. He asserts in his brief that "§ 2K2.1(a)(4)(B)
obviously targets possession of illegal weapons, as it references illegal weapons
statutes." He adds that insofar as § 2K2.1(a)(4)(B) punishes people for the
possession of so-called pre-ban weapons – Mr. Ray’s base offense level would be 14
if § 2K2.1(a)(4)(B) did not apply, see § 2K2.1(a)(6) – it contravenes Congress's intent
not to punish people for possessing such weapons. Mr. Ray did not challenge the
application of the guidelines provision in the district court, so we review the district
court's decision under the plain error standard. See generally United States v. Olano,
507 U.S. 725, 731-37 (1993).

      We conclude that the district court did not err in applying § 2K2.1(a)(4)(B).
The guidelines do not provide that § 2K2.1(a)(4)(B) applies only if possession of the
weapons described in § 921(a)(30) also violated § 922(v)(1). And the sentencing

                                          -7-
commission expressed its willingness to limit § 921(a)(30)’s effect on sentences when
it wanted to, noting that "a 'firearm described in 18 U.S.C. § 921(a)(30) ... does not
include a weapon exempted under the provisions of 18 U.S.C. § 922(v)(3)." U.S.S.G.
§ 2K2.1 comment. (n.2). Section 922(v)(3) stated that § 922(v)(1) did not apply to
certain listed firearms or to firearms that "(i) [are] manually operated by bolt, pump,
lever, or slide action, (ii) [have] been rendered permanently inoperable, or (iii) [are]
antique firearm[s]." Also, no language in § 922(v)(2) read as an exception to any
sentencing guideline; that provision simply stated that a person should not be
punished under § 922(v)(1) for possessing weapons excepted by the terms of
§ 922(v)(2).

       Section 922(v)(2) and the guidelines, thus, do not conflict. In United States v.
LaBonte, 520 U.S. 751, 753, 757 (1997), the Supreme Court concluded that because
a statute and a guideline dictated different sentences for the same people, the statute
trumped the guideline. Here there is no conflict. It is sensible to read § 922(v)(2) as
creating an exception for pre-ban weapons only with respect to the separate crime of
§ 922(v)(1), and not with respect to § 2K2.1(a)(4)(B). Through § 922(v)(2),
Congress authorized people who had not otherwise lost their right to possess firearms
to keep semiautomatic weapons that they lawfully possessed before the ban. United
States v. Metheney, No. 00-4435, 2001 WL 324621, at * 2 (4th Cir. April 4, 2001)
(unpublished per curiam), cert. denied, 534 U.S. 902 (2001). Through
§ 2K2.1(a)(4)(B), the sentencing commission decided to punish more severely the
possession of semiautomatic firearms, even those of the pre-ban variety, by a different
group of people, namely those who have otherwise lost the right to possess firearms.
Id. (The commission's decision makes sense, given that semiautomatic weapons are
likely more dangerous than other kinds of weapons. United States v. Vega, 392 F.3d
1281, 1282-83 (11th Cir. 2004) (per curiam).)

      A majority of the courts that have addressed the issue have held that
§ 922(v)(2) is not an exception to § 2K2.1(a)(4)(B) or other like provisions. Vega,

                                          -8-
392 F.3d at 1282-83; United States v. Emerson, No. 03-10104, 2004 WL 180360, at
* 3 (5th Cir. Jan. 28, 2004) (unpublished per curiam); United States v. Hayes, Nos.
02-4597/4605/4610/4651, 2003 WL 21436994, at * 2 (4th Cir. June 23, 2003)
(unpublished per curiam); Metheney, 2001 WL 324621, at * 2. At one point, the
Eleventh Circuit held that § 922(v)(2) applied to such provisions, United States v.
Vega, 365 F.3d 988, 989-90 (11th Cir. 2004), but it has since reversed course and
vacated its earlier opinion, Vega, 392 F.3d at 1282-83. The Sixth Circuit has
concluded that § 922(v)(2) applies to such provisions, United States v. O'Malley,
332 F.3d 361, 363 (6th Cir. 2003) (per curiam), but the government in O'Malley
conceded the point.

        We conclude as well that the district court did not err by sentencing Mr. Ray
under the mandatory-guidelines regime. To demonstrate an entitlement to plain-error
relief, Mr. Ray would have to show, based on the record as a whole, that there is a
reasonable probability that he would have received a more favorable sentence had the
judge sentenced him under the advisory guidelines system. United States v. Pirani,
406 F.3d 543, 547, 551-52 (8th Cir. 2005) (en banc). Mr. Ray cannot make this
showing. The only evidence that the judge might have given him a lower sentence
under the new system is that the judge sentenced him to the bottom of the guidelines
range. Under Pirani, however, that is not enough to carry the defendant's burden. Id.
at 553.

                                       III.
      For the reasons given, we affirm Mr. Ray's conviction and sentence.
                      ______________________________




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