                        RECOMMENDED FOR FULL-TEXT PUBLICATION
                            Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                     File Name: 14a0014p.06

                UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT
                                   _________________


                                                X
                           Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                 -
                                                 -
                                                 -
                                                     No. 12-2373
          v.
                                                 ,
                                                  >
                                                 -
                        Defendant-Appellant. -
 ROSSAHN BLACK,
                                                N
                  Appeal from the United States District Court
                 for the Eastern District of Michigan at Detroit.
          No. 2:10-cr-20225-1—Gerald E. Rosen, Chief District Judge.
                                Argued: November 21, 2013
                           Decided and Filed: January 15, 2014
     Before: MOORE and GRIFFIN, Circuit Judges; KORMAN, District Judge.*

                                     _________________

                                          COUNSEL
ARGUED: Brandy Y. Robinson, LEGAL AID & DEFENDER ASSOCIATION, INC.,
Detroit, Michigan, for Appellant.   Stephanie M. Hays, UNITED STATES
ATTORNEY’S OFFICE, Detroit, Michigan, for Appellee. ON BRIEF: Brandy Y.
Robinson, James R. Gerometta, LEGAL AID & DEFENDER ASSOCIATION, INC.,
Detroit, Michigan, for Appellant.   Stephanie M. Hays, UNITED STATES
ATTORNEY’S OFFICE, Detroit, Michigan, for Appellee.
                                     _________________

                                           OPINION
                                     _________________

        EDWARD R. KORMAN, District Judge. On December 7, 2009, Rossahn Black
was arrested for driving without a license. Black had a starter pistol in his waistband and
a live 7.62 caliber round in his pocket. A search of the car revealed five loaded firearms

        *
       The Honorable Edward Korman, Senior United States District Judge for the Eastern District of
New York, sitting by designation.


                                                1
No. 12-2373        United States v. Black                                           Page 2


in the trunk of his car, including a 12 gauge shotgun, a .45 caliber Glock pistol, a .45
caliber Smith and Wesson revolver, a .380 caliber Jimenez Arms pistol, and a Romarm,
Draco 7.62 caliber pistol. Black was subsequently convicted of three counts of being a
felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e).

       Because Black had three prior convictions for violent crimes, he was subject to
enhanced penalties under the Armed Career Criminal Act (ACCA) and the National
Firearms Act (NFA), 26 U.S.C. § 5845(e). These enhancements resulted in a base
offense level of 34, pursuant to the Sentencing Guidelines, and a range of 262-327
months. The district court sentenced Black to 300 months in prison. This appeal
followed.

       Black raises three issues relating to rulings the trial judge made with respect to
evidence that bore upon the issue of whether Black suffered from a severe mental
disease or defect. Black also argues that the jury should have been instructed on the
consequences of a verdict of not guilty by reason of insanity, and that the residual clause
of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii), is void for vagueness,
a claim that he concedes is foreclosed by binding Sixth Circuit precedent. See United
States v. Taylor, 696 F.3d 628, 633 (6th Cir. 2012). Black argues finally that the district
court improperly construed the National Firearms Act, 26 U.S.C. § 5845, which affected
his base offense level under the Sentencing Guidelines by raising it from 33 to 34 based
on the type of firearm he possessed. See USSG § 4B1.4(b)(3)(A) (raising the base
offense level when the “firearm possessed by the defendant was the type described in 26
U.S.C. § 5845(a).”).

                                     DISCUSSION

       We pass over all of Black’s arguments except for the last one regarding the
construction of 26 U.S.C. § 5845. We do so because the other arguments are without
merit and because, as they relate to the Black’s insanity defense, any error is harmless.
Before turning to an extended discussion of 26 U.S.C. § 5845, we briefly discuss the
evidence regarding the defense of insanity.
No. 12-2373         United States v. Black                                            Page 3


A.      The Defense of Insanity

        At trial, Black had the burden of establishing his affirmative defense of not guilty
by reason of insanity. As required by statute, Black had to prove by clear and
convincing evidence that, at the time of the commission of the acts constituting the
offense: (1) he suffered from a severe mental disease or defect, and (2) he was unable
to appreciate the nature and quality or the wrongfulness of his acts as a result of that
mental disease or defect. See 18 U.S.C. § 17; see also Dixon v. United States, 548 U.S.
1, 14 (2006). Black’s arguments relate to the district court’s rulings that affected his
efforts to establish the first prong of the test. Even if these rulings prejudiced Black’s
effort to establish that he suffered from a severe mental disease or defect, any error was
harmless because the evidence overwhelmingly establishes that he had the capacity to
appreciate the wrongfulness of his acts.

        First, Black repeatedly took steps to conceal the nature of his conduct. Indeed,
on February 5, 2008, Black asked his girlfriend, Sharmika Robinson, to register his guns
in her name because he had a felony conviction. While Black waited in her truck,
Robinson registered three guns for Black, a .40 caliber pistol, a .45 caliber pistol, and a
7.62 caliber pistol. Black later sold the .40 caliber pistol to his other girlfriend's father,
forging Robinson's signature. Subsequently, in April 2008, Black was arrested with two
loaded pistols, including the .45 caliber pistol that Robinson had previously registered
for Black. He gave the arresting officers an alias, a fake identification card, and a fake
weapons permit. Finally, Black also had been convicted of two prior counts of unlawful
gun possession, and had recently been released from prison.

        If this overwhelming evidence were not enough to establish that Black
appreciated and understood the wrongfulness of his acts, compelling evidence was
presented to support the theory that Black was malingering. More significantly, while
we have focused on the evidence affirmatively establishing that Black was able to
appreciate the wrongfulness of his acts, as we have already observed, the burden of proof
was on him to establish by clear and convincing evidence that he was unable to do so.
On this record, we do not see how he could have possibly met that burden of proof.
No. 12-2373        United States v. Black                                           Page 4


Thus, any error that may have undermined his effort to establish mental disease or defect
was harmless under the beyond a reasonable doubt standard that applies to errors of
constitutional dimension and the less demanding standard that applies to errors of the
kind at issue here. Kotteakos v. United States, 328 U.S. 750 (1946); see also Brecht v.
Abrahamson, 507 U.S. 619 (1993).

B.     National Firearms Act

       We turn now to the only issue in the case that requires more extended discussion.
Black argues that one of the weapons he was convicted of possessing, a Romarm, Draco
7.62 caliber pistol, does not come within the sentencing enhancement for certain
specified weapons under the National Firearms Act (NFA), 26 U.S.C. § 5845(e).
Specifically, the NFA contains a list of certain weapons that trigger a sentencing
enhancement; it also contains a catchall clause that triggers the enhancement for the
possession of “any other weapon.” 26 U.S.C. § 5845(e). The latter category, however,
expressly excludes a “pistol.”

       Since the sixteenth century, as the Supreme Court of Illinois has observed, the
term “pistol” has applied to a short firearm “intended to be aimed and fired from one
hand.” People v. Borgeson, 166 N.E. 451, 455 (Ill. 1929). This is consistent with the
dictionary definition. Indeed, Webster’s defines a pistol as “a short firearm intended to
be held and fired with one hand.” Webster’s Unabridged Dictionary, Deluxe Ed. (2001).
Similarly, the Oxford English dictionary refers to “[a] small fire-arm, with a more or less
curved stock, adapted to be held, and fired by, one hand.” Oxford English Dictionary
909 (2nd ed. 1989). Moreover, aside from the dictionary definition, to which we look
in determining the ordinary meaning of words, see United States v. Zabawa, 719 F.3d
555, 559 (6th Cir. 2013), the case law addressing this issue applies the same definition.
See Davis v. State, 215 So.2d 626, 626 (Fla. Dist. Ct. App. 1968) (defining “pistol” as
“a generic word which encompasses the entire class of firearms designed either by the
manufacturer or the possessor to be held and fired by one hand.”); Ruiz v. State,
368 S.W.2d 609, 610 (Tex. Crim. App. 1963) (adopting the Webster’s definition of a
“pistol” as “a short firearm intended to be aimed and fired from one hand.”); Campbell
No. 12-2373        United States v. Black                                           Page 5


v. Commonwealth, 174 S.W.2d 778, 779 (Ky. 1943) (same); State v. Barr, 102 S.W.2d
629, 632 (Mo. 1937) (same); People v. Borgeson, 166 N.E. 451, 455 (Ill. 1929).

       Notwithstanding the well understood definition of a pistol, Black attempts to
restrict the definition of a pistol to the time when it was originally manufactured.
Specifically, when the weapon at issue here was originally made, it was intended to be
fired with one hand and was only later modified by the addition of a vertical foregrip –
a stabilizing grip that was attached to the front of the firearm so that it could be fired
using two hands to improve accuracy and counter recoil. While such a weapon comes
within the definition of “any other weapon” and would justify the sentencing
enhancement to which he was subject, Black argues that the nature of the weapon at the
time that he was arrested for possessing it is not controlling.

       This peculiar argument is based on a regulation adopted pursuant to 26 U.S.C.
§ 7805, which conferred upon the Secretary of the Treasury, of which the Alcohol,
Tobacco, and Firearms Division was then a part, the authority to “prescribe all needful
rules and regulation for the enforcement” of the title containing the catchall provision
at issue here. The regulation defines a “pistol” as a “weapon originally designed, made,
and intended to fire a projectile (bullet) from one or more barrels when held in one
hand.” 27 CFR § 479.11 (emphasis added). The Ninth Circuit has held that the word
“originally” modifies each of the verbs that follow it. United States v. Fix, 4 F.App’x.
324 (9th Cir. 2001) (unpublished). Consequently, any modifications to a pistol made
after it was originally manufactured do not alter its status as a “pistol.” Id. Under this
interpretation, the Romarm would qualify as a pistol even though it was altered to be
held in two hands at the time Black was in possession of the weapon.

       We decline to follow this unpublished decision, even if it arguably construed the
Code of Federal Regulations (“CFR”) provision at issue in a plausible way. The
responsibility for the enforcement of 26 U.S.C. § 5845(e) has been removed from the
Secretary of the Treasury and placed in the hands of the Bureau of Alcohol, Tobacco,
Firearms, and Explosives (“ATF”) of the Department of Justice (“DOJ”). The latter, in
turn, has adopted an interpretation different from that of the Ninth Circuit. Specifically,
No. 12-2373        United States v. Black                                            Page 6


the DOJ has construed the CFR in a way that is consistent with the plain language of the
statute and the common definition of a pistol as a short firearm intended to be fired with
one hand. In particular, it relies on the CFR’s definition of “made,” which includes
“putting together, altering, any combination of these, or otherwise producing a firearm.”
27 CFR § 479.11 (emphasis added); See also 26 U.S.C. § 5845(i). The DOJ then reads
the definition of a “pistol” so that it applies to firearms that are “originally designed,
[altered], and intended” to be fired with one hand. 27 CFR § 479.11. Significantly, as
early as 2006, the DOJ advised that:

       ATF has long held that by installing a vertical fore grip on a handgun, the
       handgun is no longer designed to be held and fired by the use of a single
       hand. Therefore, if individuals install a vertical fore grip on a handgun,
       they are ‘making’ a firearm requiring registration with ATF’s NFA
       Branch.

Adding a Vertical Fore Grip to a Handgun, U.S. Department of Justice, Bureau of
Alcohol,      Tobacco,      Firearms,       and   Explosives       (May     4,    2006),
http://www.atf.gov/press/releases/2006/04/041006-openletter-nfa-adding-vertical-for
e-grip.html. Because the CFR definition of a “pistol” is a creature of the ATF’s own
regulations, the ATF’s interpretation of it is controlling unless “plainly erroneous or
inconsistent with the regulation.” Auer v. Robbins, 519 U.S. 452, 462 (1997) (internal
citations and quotation marks omitted). While this may be a close call, we defer to the
ATF’s interpretation of its own regulation if only because it is plainly consistent with
the language of 26 U.S.C. § 5845(e).

       Moreover, the language of § 5845(e) is so clear that it arguably did not require
an interpretive regulation, much less one that created so much confusion that it required
a subsequent agency interpretation. Thus, the Supreme Court has held that “[i]n the
context of an unambiguous statute, we need not contemplate deferring to the agency’s
interpretation.” Barnhart v. Sigmon Coal Co., Inc., 122 S.Ct. 941, 956 (2002) (citing
Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984)).
The term “pistol,” as we have observed, has a well understood meaning that dates back
to the sixteenth century and is reflected in the dictionary definition and case law that
No. 12-2373        United States v. Black                                          Page 7


followed. Indeed, the CFR adopts this definition. The only difference is its inexplicable
focus on condition of the firearm at the time it was manufactured.

       This consideration aside, an agency’s interpretation of a statute that it enforces
will only control if it is “based on a permissible construction of the statute.” Chevron,
467 U.S. at 843; see Metro. Hosp. v. U.S. Dept. of Health and Human Servs., 712 F.3d
248, 254 (6th Cir. 2013). Rather than providing such an interpretation, the construction
for which Black argues would amend the statute to limit its scope in a way that is
difficult to justify and would lead to the absurd result of exempting weapons which are
modified to fall within the definition of “any other weapon” any time after they leave the
factory. We know from at least one other provision of 26 U.S.C. § 5845 that Congress
intended to provide for a sentencing enhancement based on a weapon’s capability in the
present or the immediate future. Thus, under the NFA, a firearm is classified as a
machine gun if it shoots or is designed to shoot automatically, or can be “readily
restored” to shoot automatically. 26 U.S.C. § 5845(b) (emphasis added). In this case,
a pistol was actually altered in such a way that it became a weapon subject to the
sentencing enhancement within the catchall provision of § 5845(e). We are unable to
divine any reason why Congress would exclude such altered pistols from the definition
of weapons triggering the sentencing enhancement.

       In sum, at the time of his arrest, Black was in possession of a Romarm, Draco
7.62 caliber pistol with a vertical foregrip, which was no longer intended to be held and
fired with one hand. Consequently, the Romarm is not a pistol, and does qualify for the
sentencing enhancement as “any other weapon.” 26 U.S.C. § 5845(e).

                                    CONCLUSION

       The judgment of conviction is AFFIRMED.
