                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-16-2006

USA v. Sivik
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4528




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Recommended Citation
"USA v. Sivik" (2006). 2006 Decisions. Paper 579.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/579


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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                       No: 05-4528

                           UNITED STATES OF AMERICA

                                            v.

                                  DARRELL W. SIVIK

                                         Appellant

                       Appeal from the United States District Court
                         for the Western District of Pennsylvania
                                 (Crim. No. 04-cr-00017)
                          District Court: Hon. Maurice B. Cohill

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    July 11, 2006

                   Before: Sloviter, McKee, and Rendell, Circuit Judges

                              (Opinion filed: August 16, 2006)

McKEE, Circuit Judge

       Darrell Sivik, a federally licensed firearms dealer, appeals from the sentence that

was imposed after he entered a conditional guilty plea to charges arising from his

unlawful transfer of two machine guns in violation of 26 U.S.C. §§ 5861(e), and 5845(a)

and (b). He now argues that his conviction can not stand because it violates a

constitutional right to bear arms contained in the Second Amendment, and denies him due

process of law in violation of the Fifth Amendment. We will affirm.


                                             1
       Sivik’s claims of error rest upon his assertion that the Second Amendment

embodies a right to possess and transfer unregistered machine guns, and the applicable

registration requirements violate his Fifth Amendment privilege against self

incrimination.

       We reject his Second Amendment claim based upon our discussion in United

States v. Rybar, 103 F.3d 373 (3d. Cir. 1996). In Rybar, we also noted that the Supreme

Court has upheld firearms registration requirements against challenges based upon the

Second Amendment. Id., at 281. Although Sivik’s challenge to the registration

requirements is based upon the Fifth Amendment’s privilege against self incrimination

rather than the purported constitutional right to bear arms under the Second Amendment,

his Fifth Amendment challenge is equally meritless.

       Although the registration requirements as previously enacted did violate the Fifth

Amendment, see United States v. Haynes, 390 U.S. 85 (1968), Congress has since cured

the constitutional infirmity by enacting 26 U.S.C. § 5848(a). See United States v. Freed,

401 U.S. 601 (1971).1

       Accordingly, the judgment of sentence will be affirmed.2



1
 See also, Rybar, wherein we explained that the Supreme Court has “upheld the
constitutionality of a firearms-registration requirement against a Second Amendment
challenge.” 103 F.3d at 281. (citing United States v. Miller, 307 U.S. 174 (1939)).
2
 We have also previously rejected Sivik’s argument that 18 U.S.C. 922 (0) invalidates the
revenue generating scheme of 26 U.S.C. §5861. See United States v. Grier, 354 F.3d 210
(3d. Cir. 2003).

                                             2
