                NOT RECOMMENDED FOR FULL TEXT PUBLICATION
                           File Name: 06a0071n.06
                           Filed: January 26, 2006

                                           No. 04-3431

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                             )
                                                      )
               Plaintiff-Appellee,                    )       ON APPEAL FROM THE
                                                      )       UNITED STATES DISTRICT
                                                      )       COURT FOR THE NORTHERN
v.                                                    )       DISTRICT OF OHIO
                                                      )
FRANCIS J. WARIN,                                     )
                                                      )
               Defendant-Appellant.                   )




BEFORE: SILER and GIBBONS, Circuit Judges, and LAWSON, District Judge*

       DAVID M. LAWSON, District Judge.                In 1976, Francis J. Warin challenged his

convictions of various federal firearms offenses on the grounds that the Second Amendment protects

an individual’s right to possess arms, and Congress’ efforts to regulate and register firearms

possession were unconstitutional. This court rejected those arguments; it held that “the Second

Amendment guarantees a collective rather than an individual right,” and concluded that Warin

“ha[d] no private right to keep and bear arms under the Second Amendment which would bar his

prosecution and conviction” for violating federal firearms statutes. United States v. Warin, 530 F.2d

103, 106-07 (6th Cir. 1976). Warin returns to this court with new firearms convictions but advances



       *
       The Honorable David M. Lawson, United States District Judge for the Eastern District
of Michigan, sitting by designation.
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the same argument. As the court did twenty-nine years ago, we likewise today reject that argument

and affirm Warin’s federal firearms convictions. However, we vacate his sentence and remand for

resentencing under the now-advisory sentencing guidelines. See United States v. Booker, 543 U.S.

220, 125 S. Ct. 738 (2005).

                                                  I.

       The facts of this case strongly suggest that Warin invited this prosecution by conduct that

fairly can be characterized as provocative. On May 19, 2003, the United States Attorney’s Office

in Toledo, Ohio received a package addressed to Assistant United States Attorney, Lawrence Kiroff.

After scanning the package, security found that it contained a homemade .22 caliber gun and

silencer. The package was sent by the defendant, Francis Warin, along with a letter. Officials ran

a background check and determined that Warin had a past criminal history involving firearms.

Agents from the Bureau of Alcohol, Tobacco, and Firearms initiated an investigation.

       Kiroff testified at trial that prior to receiving the package, he had handled a civil forfeiture

case involving some twenty-two guns that had been confiscated from Warin’s residence during a

search in 1999. Apparently, the search was conducted after Warin threatened to bring a bomb to an

FBI office. Kiroff stated that sometime after he concluded the case, Warin arrived at Kiroff’s office

requesting that he be arrested for possession of firearms. Kiroff denied the request and told Warin

“to please go home and forget about this matter,” J.A. at 97, but Warin was quite adamant. Warin

then began to write Kiroff regularly and ultimately sent Kiroff the homemade gun and silencer.

       On May 22, 2003, agents arrested Warin and searched his home pursuant to warrants issued

by a federal magistrate judge. The search revealed six firearms, some forty thousand rounds of
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ammunition, and an explosive device. Warin provided agents with a statement in which he admitted

to mailing the firearm and silencer. Warin also told agents that he had been placed on probation in

1976 after he was convicted of carrying a machine gun into the federal courthouse in Toledo, Ohio,

a felony offense.

       On June 4, 2003, a federal grand jury returned a five-count indictment against the defendant.

Count one charged Warin with possessing an unregistered .22 caliber gun in violation of 26 U.S.C

§§ 5841, 5861(d), and 5871. Count two alleged that Warin possessed a silencer in connection with

the firearm in violation of the same provisions. Count three charged Warin with mailing the firearm

and silencer and having those items delivered to Lawrence J. Kiroff, an assistant United States

attorney, which items could be concealed on the person in violation of 18 U.S.C. § 1715. Court four

alleged that Warin previously had been convicted of a felony and therefore possessed a firearm in

violation of 18 U.S.C. § 922(g)(1). Count five charged Warin with illegally possessing an additional

firearm as a felon.

       A bench trial was held on October 8, 2003. When the proofs concluded, Warin filed a

written motion to dismiss pursuant to Federal Rule of Criminal Procedure 29, to which the

government responded. On December 17, 2003, the district court denied Warin’s motion and found

him guilty of each charge in the indictment. A presentence report was prepared, and on February

17, 2004 Warin filed objections in which he asserted that his base offense level should be reduced

for acceptance of responsibility, the evidence did not support enhancements for the number of

weapons and possession of a destructive device, and the court should depart downward because of

the defendant’s age and health. On March 22, 2004, the district court sentenced Warin to thirty-
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three months in prison on counts one, two, four, and five and twenty-four months on count three to

run concurrently with the other counts. The district court further imposed a $2,000 fine, a $500

special assessment fee, and three years of supervised release. Warin filed a timely notice of appeal.

 He argues that the district court erred in denying his motion to dismiss because the Second

Amendment, which he believes confers individual rights, is a complete defense to his crimes; and

the district court improperly decided facts at the sentencing hearing that enhanced the defendant’s

Sentencing Guideline score.

                                                 II.

       This court reviews de novo the constitutional rulings of the district court. United States v.

Napier, 233 F.3d 394, 397 (6th Cir. 2000). We review the sentencing issue for plain error because

Warin did not present these arguments in the district court. Fed. R. Crim. P. 52(b); United States

v. Johnson, 403 F.3d 813, 815 (6th Cir. 2005).

                                                 A.

       There is one point of the constitutional argument that the defendant and the government

share: they both believe that the Second Amendment must be construed to confer individual – not

collective – rights, a viewpoint espoused by the Fifth Circuit alone. See United States v. Emerson,

270 F.3d 203 (5th Cir. 2001). However, this court has had several opportunities to reassess its

position since United States v. Warin was decided in 1976 and has continued to hold to its view that

the Second Amendment confers only collective rights. See United States v. Bournes, 339 F.3d 396,

397 (6th Cir. 2003); United States v. Napier, 233 F.3d 394, 402 (6th Cir. 2000); United States v.
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Baker, 197 F.3d 211, 216 (1999); United States v. Ables, 167 F.3d 1021, 1027 (6th Cir. 1999). We

subscribe to that interpretation as well.

        The Second Amendment to the United States Constitution provides: “A well regulated

Militia, being necessary to the security of a free State, the right of the people to keep and bear arms,

shall not be infringed.” This circuit has repeatedly held that the right to bear arms is a collective one,

and accordingly “there can be no serious claim to any express constitutional right of an individual

to possess a firearm.” Bournes, 339 F.3d at 397 (quoting Warin, 530 F.2d at 106). It is quite difficult

to hold otherwise without reading the first two clauses out of the text of the amendment.

        Despite this clear precedent, Warin asserts the Second Amendment as a complete defense

to all charges in the indictment. He, like the defendant in Bournes, asks the court to reconsider its

position in light of United States v. Verdugo-Urquidez, 494 U.S. 259 (1990), and find that the

Second Amendment confers individual rights. In that case, the Court considered the term, “the

people,” found in the preamble, and the First, Second, Fourth, Ninth and Tenth Amendments to the

Constitution, and stated that it “refers to a class of people who are part of a national community.”

Id. at 282. Warin contends that this obiter dictum requires this court to re-evaluate its interpretation

of the Second Amendment. He claims the district court erred when it found that the Second

Amendment afforded Warin no complete defense, denied his motion filed under Federal Rule of

Criminal Procedure 29, and convicted him on each of the five counts.

        However, in Bournes, this court stated its position with respect to changing its interpretation

of the Second Amendment:

        Recognizing this authority and our well-entrenched rule that a panel of this court
        cannot overrule the published opinion of another panel unless an intervening
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       Supreme Court decision mandates modification of the prior opinion, see United
       States v. Ables, 167 F.3d 1021, 1027 (6th Cir.1999), Bournes urges us to reconsider
       our holding in Warin in light of United States v. Verdugo-Urquidez, 494 U.S. 259
       (1990). But whatever the value of dicta in that opinion referring to the Court’s
       understanding of the Second Amendment’s ‘textual exegesis,’ id. at 265, we have
       reaffirmed Warin on at least two occasions in the interim. . . . Without a subsequent
       en banc ruling to the contrary, we are therefore bound to apply Warin in this case.

Bournes, 339 F.3d at 397-98. Warin has not alleged here the presence of any of the factors that

would permit this panel to overrule its previous decisions.

       Moreover, extended discussion of the individual versus the collective rights model would

serve no further purpose in this case because the Second Amendment would afford Warin no relief

under either theory. Warin concedes that under this circuit’s collective rights model the Second

Amendment provides him no protection for his criminal conduct. Similarly, even under the

individual rights model articulated in Emerson, the firearms statutes under which Warin was

convicted would be upheld as they were in that case as “limited, narrowly tailored specific

exceptions or restrictions for particular cases that are reasonable and not inconsistent with the right

of Americans generally to individually keep and bear their private arms as historically understood

in this country. . . . [I]t is clear that felons, infants, and those of unsound mind may be prohibited

from possessing firearms.” Emerson, 270 F.3d at 261. Warin makes no argument that the statutes

he violated are somehow unreasonable.

       Warin does, however, present a due process claim. He argues that the National Firearms Act,

26 U.S.C. § 5861(d), which requires him to register his firearms, is an improper application of the

government’s taxation powers. Like others before him, he relies on the Tenth Circuit’s decision in

United States v. Dalton, 960 F.2d 121 (10th Cir. 1992). Dalton, an attorney, argued to the court that
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it was legally impossible for him to comply with the registration requirement of section 5861(d)

because the statute mandates denial of all registration applications for firearms that are illegal to

possess, and the machine gun Dalton received as a fee from a client was a prohibited weapon under

the Firearm Owners’ Protection Act. The Dalton court agreed. However, the Dalton impossibility

defense was rejected in United States v. Jones, 976 F.2d 176 (4th Cir. 1992), where the court

observed that a person can comply with the statutes simply “by refusing to deal in newly-made

machine guns.” Id. at 183.

       This court declined to adopt Dalton’s reasoning in United States v. Mise, 240 F.3d 527, 530

(6th Cir. 2001), although the facts of that case were readily distinguished from Dalton’s facts where

there was no showing that the defendant could not register the pipe bomb that was the object of the

prosecution in that case. But the precise argument was squarely rejected in United States v.

Bournes, where we stated:

       We take this occasion, involving a case with facts squarely on point with those in
       Dalton, to reject the reasoning of that opinion and, instead, follow our sister circuits
       in adopting the more compelling reasoning of Jones. We hold that compliance with
       the relevant provisions of both the National Firearms Act and the Firearms Owners’
       Protection Act is easily achieved: Bournes could have complied simply by electing
       not to possess the machine guns at issue in this case. Furthermore, the Constitution
       does not forbid making the same conduct illegal under two statutes, and the
       government is permitted to prosecute under either one.

Bournes, 339 F.3d at 399 (internal quotes and citation omitted).

       In this case, Warin does not contend that he could not register the homemade guns for which

he was prosecuted and convicted. His argument, therefore, has less appeal than Bournes’ and is

closer to the one made in Mise. In all events, there is no due process violation here that invalidates

Warin’s convictions.
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                                                B.

       Warin argues on appeal that the district court erred when it failed to consider certain

sentencing factors at the trial phase of the case but instead made factual findings on those matters

at the sentencing hearing in violation of the rules handed down in Blakely v. Washington, 542 U.S.

296 (2004), and Apprendi v. New Jersey, 530 U.S. 466 (2000).

       Using the November 1, 2003 Sentencing Guidelines, the district court determined Warin’s

base offense level to be 20 because he committed the offense while being a prohibited person. See

U.S.S.G. § 2K2.1(a)(4)(B)(I). Four levels were added pursuant to U.S.S.G. § 2K2.1(b)(1)(B)

because Warin’s offense involved the possession of at least eight firearms during the commission

of these offenses. Two additional points were added because Warin possessed a destructive device

during the offense. See U.S.S.G. § 2K2.1(b)(3). With a criminal history category of I, the

Guidelines imposed a range of 63 to 78 months. However, the district court granted Warin a two-

level downward departure for acceptance of responsibility and further departed four levels for a

combination of circumstances, including Warin’s age and infirmity. At this level, Warin’s guideline

range was between 33 to 41 months imprisonment. The court sentenced Warin to thirty-three

months imprisonment on counts one, two, four, and five, and twenty-four months on count three to

run concurrently. The court imposed a $2,000 fine, two years of supervised release, and a special

assessment fee of $500.

       The precise argument based on a violation of Warin’s Fifth and Sixth Amendment rights is

raised for the first time on appeal. However, Warin’s attorney filed written objections to the

presentence report in which he stated that “it is important to note that only three firearms, plus a
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homemade silencer, were objects of the indictment. The other firearms referred to in Paragraph 13

were not the subject of prosecution.” J.A. at 31. The objections also stated that “[i]t is undisputed

that the hand grenade was not included as a count in the indictment.” J.A. at 32. He contends that

these objections are sufficient to preserve his constitutional sentencing issues for appeal.

       That argument may indeed be preserved, see United States v. Strayhorn, 250 F.3d 462, 467

(6th Cir. 2001) (holding that defendant preserved his Apprendi challenge to his sentence where he

objected to the drug quantity determination at his plea and sentencing hearings and filed a written

objection to the calculation of his base offense level in his presentence report, although he did not

utter the words “due process” at either of these hearings), overruled on other grounds by United

States v. Leachman, 309 F.3d 377 (6th Cir. 2002), but we need not decide that point because we find

that the sentence must be vacated even under a plain error standard of review. Under the latter

standard, the defendant must demonstrate (1) an error; (2) that was plain, meaning obvious or clear;

(3) affected Warin’s substantial rights; and (4) seriously affected the fairness, integrity or public

reputation of the proceedings. United States v. Oliver, 397 F.3d 369, 378 (6th Cir. 2005).

       This case was briefed and argued before the Supreme Court decided Booker, in which the

Court determined that it must “excise” 18 U.S.C. § 3553(b)(1) to the extent that the section

“require[d] sentencing courts to impose a sentence within the applicable Guidelines range (in the

absence of circumstances that justify a departure).” Booker, 543 U.S. at __, 125 S. Ct. at 764.

Warin satisfies the first prong of the plain error test because the district court sentenced him based

on a higher quantity of guns than the amount found by the district court beyond a reasonable doubt.

Moreover, this court held in United States v. Barnett, 398 F.3d 516 (6th Cir. 2005), that any pre-
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Booker sentencing determination constitutes plain error because the Guidelines then were

mandatory. The second prong is also met under the rule in Booker. See Oliver, 397 F.3d at 379.

Third, the error plainly impacted Warin’s substantial rights because it “affected the outcome of the

district court proceedings.” United States v. Cotton, 535 U.S. 625, 632 (2002). Finally the error

affected the fairness, integrity, and reputation of the proceeding because the court imposed a more

severe sentence than that supported by the verdict. See Oliver, 397 F.3d at 380. The weight of

authority in this circuit requires that we vacate the sentence and remand “to accord the district court

an opportunity to take another look at the sentence” in light of the now-advisory nature of the

Guidelines. United States v. McCraven, 401 F.3d 693, 700 (6th Cir. 2005).

       The sentence in this case was at the low end of the Guidelines range, which may have been

compelled by the former mandatory nature of the Sentencing Guidelines. See United States v.

Hamm, 400 F.3d 336, 340 (6th Cir. 2005) (reasoning that “[b]ased upon the district court’s

imposition of a sentence at the low end of the range and its apparent sympathy for Hamm, we

believe that the court might have sentenced Hamm to fewer than 33 months in prison if it had felt

that it were free to do so”). Our decision to vacate the sentence, however, is not based on a finding

that the sentence is unreasonable or that a different disposition is required. Rather, we believe

“[t]he better course . . . is to vacate [Warin’s] sentence and remand for resentencing, thus affording

the district court the opportunity to re-sentence him in the first instance. ‘We would be usurping the

discretionary power granted to the district courts by Booker if we were to assume that the district

court would have given [the defendant] the same sentence post-Booker.’” United States v. Barnett,

398 F.3d 516, 530 (6th Cir. 2005) (quoting Oliver, 397 F.3d at 381 n. 3).
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                                            III.

       For the reasons stated, we AFFIRM the defendant’s conviction, VACATE his sentence, and

REMAND for resentencing in light of United States v. Booker.
