PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 07-4417
JAMES WESLEY MYERS, JR., a/k/a
Jimmy,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of North Carolina, at Statesville.
Richard L. Voorhees, District Judge.
(5:06-cr-00028)
Argued: October 31, 2008
Decided: January 16, 2009
Before WILLIAMS, Chief Judge, and TRAXLER
and KING, Circuit Judges.
Affirmed by published opinion. Judge Traxler wrote the opin-
ion, in which Chief Judge Williams and Judge King joined.
COUNSEL
ARGUED: Ross Hall Richardson, FEDERAL DEFENDERS
OF WESTERN NORTH CAROLINA, INC., Charlotte, North
Carolina, for Appellant. Amy Elizabeth Ray, OFFICE OF
2 UNITED STATES v. MYERS
THE UNITED STATES ATTORNEY, Asheville, North Car-
olina, for Appellee. ON BRIEF: Claire J. Rauscher, Execu-
tive Director, Peter Adolf, FEDERAL DEFENDERS OF
WESTERN NORTH CAROLINA, INC., Charlotte, North
Carolina, for Appellant. Gretchen C. F. Shappert, United
States Attorney, Charlotte, North Carolina, for Appellee.
OPINION
TRAXLER, Circuit Judge:
James Myers, who had previously been convicted of a fel-
ony, pleaded guilty to a charge of unlawful possession of a
firearm. See 18 U.S.C.A. § 922(g)(1) (West 2000). Because
the firearm was capable of accepting a large-capacity
magazine, the district court at sentencing increased Myers’s
base offense level by six points. See U.S.S.G.
§ 2K2.1(a)(4)(B)(i)(I) (2006). Myers appeals, arguing that the
application of the sentencing enhancement violated the Ex
Post Facto Clause of the United States Constitution. Finding
no constitutional error, we affirm.
I.
A.
The firearm at issue in this case qualified as a "semiauto-
matic assault weapon" as defined by 18 U.S.C.A.
§ 921(a)(30), the possession of which (at least for a time) was
prohibited by federal law. See 18 U.S.C.A. § 922(v)(1) (West
2000) ("It shall be unlawful for a person to manufacture,
transfer, or possess a semiautomatic assault weapon."). The
assault-weapon ban, however, expired on September 13,
2004, and § 922(v)’s prohibition against possession and
§ 921’s definition of a semiautomatic assault weapon were
repealed as of that date. See Pub. L. 103-322, § 110105, 108
UNITED STATES v. MYERS 3
Stat. 1796, 2000 (1994) ("This subtitle and the amendments
made by this subtitle—(1) shall take effect on the date of the
enactment of this Act [September 13, 1994]; and (2) are
repealed effective as of the date that is 10 years after that
date.").
Myers committed the offense at issue in this appeal on
April 1, 2006, well after the expiration of the assault-weapon
ban. At the time of the offense, the then-current 2005 version
of the Sentencing Guidelines Manual provided for a six-level
increase to a felon-in-possession’s base offense level "if the
offense involved a firearm described in . . . 18 U.S.C.
§ 921(a)(30)." U.S.S.G. § 2K2.1(4)(B) (2005). By the time
Myers was sentenced in December 2006, however, the 2006
Manual had taken effect. The 2006 Manual amended
§ 2K2.1(4)(B) to eliminate the reference to 18 U.S.C.A.
§ 921(a)(30) and to provide for the large-capacity-magazine
enhancement that was applied by the district court. See
U.S.S.G. § 2K2.1(a)(4)(B) (2006).
The general rule is that the district court should use the sen-
tencing manual in effect at the time of sentencing, see 18
U.S.C.A. § 3553(a)(4)(A)(ii); U.S.S.G. § 1B1.11(a), which is
what the district court did in this case. There is, however, an
exception to the general rule: If use of the then-current man-
ual would violate the Ex Post Facto Clause by subjecting the
defendant to a higher sentence, the court should use the ver-
sion of the manual in effect when the offense was committed.
See U.S.S.G. § 1B1.11(b)(1); United States v. Heater, 63 F.3d
311, 331 (4th Cir. 1995) ("[A]mendments to the Guidelines
occurring after a defendant’s offense but before sentencing
should not be applied if doing so would increase the sentence,
because that would violate the Ex Post Facto Clause in Article
I, § 9 of the United States Constitution.").
On appeal, Myers argues that because the assault-weapons
ban had already expired and the definitions contained in
§ 921(a)(30) had been repealed when he committed the
4 UNITED STATES v. MYERS
offense, the 2005 Guidelines enhancement (which refers to
§ 921(a)(30)) could not have been applied to him. And
because his base offense level would not have been enhanced
under the 2005 Manual, Myers argues that the district court’s
use of the 2006 Manual led to an increase in his sentence in
violation of the Ex Post Facto Clause. Myers’s Ex Post Facto
claim is thus dependent on his view that the repeal of the
assault-weapon ban instantly and automatically rendered the
2005 version of § 2K2.1(4)(B) a nullity. If the 2005 enhance-
ment remained viable after the repeal such that it could have
been applied to Myers, then the application of the 2006
enhancement did not increase Myers’s sentence, and the Ex
Post Facto claim must fail.
B.
While Myers insists on appeal that the repeal of the assault-
weapon ban rendered the 2005 enhancement a nullity, the
basis for his argument is less than clear. It appears to rest on
little more than an assumption that, as a matter of law, the
repeal of § 922(v) and § 921(a)(30) also amounts to a repeal
of any other statute that refers to those provisions. As we
explain below, however, the repeal of the assault-weapon ban
did not operate as a repeal of the 2005 enhancement.
We first note that if the list of weapons itself were actually
set forth in the enhancement, then as a matter of basic logic
there would be no reason to think that the repeal of the
assault-weapon ban would affect the validity (post-repeal) of
the enhancement. After all, the Sentencing Commission has
the authority to conclude that the possession of certain kinds
of firearms by felons or other prohibited persons is especially
dangerous, even if possession of such weapons by the general
public is not otherwise prohibited by law. See, e.g., 28
U.S.C.A. §§ 994(c)(2) & (5) (West 2006) (requiring the Sen-
tencing Commission when formulating the Guidelines to con-
sider, among other things, "the circumstances under which the
offense was committed which mitigate or aggravate the seri-
UNITED STATES v. MYERS 5
ousness of the offense" and "the public concern generated by
the offense"). And as we explain below, the Sentencing Com-
mission accomplished the same result by including in the
2005 enhancement a specific reference to the list contained in
§ 921(a)(30).
The general rule is that when one statute adopts a provision
of another statute by specific reference, it is as if the adopting
statute had itself spelled out the terms of the adopted provi-
sion:
"Where one statute adopts the particular provisions
of another by a specific and descriptive reference to
the statute or provisions adopted, the effect is the
same as though the statute or provisions adopted
had been incorporated bodily into the adopting stat-
ute."
Hassett v. Welch, 303 U.S. 303, 314 (1938) (emphasis added;
quoting 2 Sutherland Statutory Construction, 787-88 (2d ed.
1904)); accord United States v. Oates, 427 F.3d 1086, 1089
(8th Cir. 2005); see also 1A Norman J. Singer, Sutherland
Statutes and Statutory Construction § 22:25 (6th ed. 2002)
("When a statute adopts the provisions of another statute by
specific reference, the effect is as if the referenced statute had
been incorporated into the adopting statute."). This principle
applies equally to the incorporation of a statutory provision by
the Sentencing Guidelines. See Oates, 427 F.3d at 1089.
Applying this principle requires us to read the 2005
enhancement as if it had reproduced in the text of the
enhancement itself the list of qualifying weapons set out in 18
U.S.C.A. § 921(a)(30). And as explained above, there is, as a
matter of logic, no reason that the repeal of the assault-
weapon ban should render invalid the Sentencing Commis-
sion’s independent decision that the possession of these weap-
ons by prohibited persons is especially dangerous. General
principles of statutory construction support this view as well.
6 UNITED STATES v. MYERS
"Where a reference statute incorporates the terms of one
statute into the provisions of another act, the two statutes co-
exist as separate distinct legislative enactments, each having
its appointed sphere of action." Sutherland Statutory Con-
struction, supra, § 23:33 (internal quotation marks omitted).
Accordingly, "[a]s neither statute depends upon the other’s
enactment for its existence, the repeal of the provision in one
enactment does not affect its operation in the other statute."
Id. The repeal of the assault-weapon ban therefore did not, as
a matter of general legal principles, operate as a repeal of the
2005 enhancement.
Moreover, we find nothing in the language of the 2005
enhancement that otherwise makes the viability of the
enhancement dependent on the status of the assault-weapon
ban itself. As noted above, the 2005 enhancement called for
a six-point increase in the defendant’s base offense level "if
the offense involved a firearm described in . . . 18 U.S.C.
§ 921(a)(30)." U.S.S.G. § 2K2.1(4)(B) (2005) (emphasis
added). There is no language stating that the enhancement
may be applied only while the assault-weapon ban remains
effective, nor is there any language connecting the enhance-
ment to the prohibited status of the weapons at issue. Section
921(a)(30) was a definitional statute only—it listed specific
firearms that qualified as semiautomatic assault weapons as
well as combinations of weapon components that qualified as
semiautomatic assault weapons, but it did not impose any
restrictions on the use or possession of firearms meeting the
definition. That prohibitory function was instead filled by
§ 922(v)(1), which made it "unlawful for a person to manu-
facture, transfer, or possess a semiautomatic assault weapon."
If the 2005 enhancement had spoken in terms of prohibited
weapons, Myers’s argument that the repeal of the assault-
weapon ban effectively repealed the enhancement might be
more persuasive. For example, if the 2005 Guidelines pro-
vided for a sentencing enhancement if the possession of the
weapon at issue was "prohibited by 18 U.S.C.A. § 922(v),"
UNITED STATES v. MYERS 7
then the repeal of the § 922(v) would eliminate the factual
basis for an enhancement because § 922(v) would have no
prohibitory effect after its repeal. Application of the 2005
enhancement, however, depends not on whether possession of
the weapon at issue was otherwise prohibited by law, but on
whether the weapon appeared on a list of weapons contained
in a specified statute and (effectively) repeated verbatim in
the 2005 enhancement itself. Thus, we find nothing in the
plain language of the 2005 enhancement to support Myers’s
view that the repeal of the assault-weapon ban somehow ren-
dered the 2005 enhancement inoperative. As the Second Cir-
cuit has explained:
We are aware of no authority that prevents Con-
gress, or the Sentencing Commission acting under
Congressional authority, from incorporating by ref-
erence any definition they choose in the Sentencing
Guidelines, whether or not that definition is con-
tained in a currently operative provision of the
United States Code. We see no sensible alternative
to reading § 2K2.1(a)(5)’s reference to § 921(a)(30)
to mean that despite the repeal of that statute, courts
should continue to ascertain whether the firearm
used by the defendant in the commission of the
crime qualified as a "semiautomatic assault weapon"
under that section.
United States v. Roberts, 442 F.3d 128, 130 (2d Cir. 2006)
(per curiam) (emphasis added; citations omitted).1
1
While this observation is not dispositive of the question, we note that
the Sentencing Commission apparently did not view the repeal of the
assault-weapon ban as having any effect on the viability of the pre-repeal
version of § 2K2.1. After the ban was repealed in 2004, the Commission
twice amended § 2K2.1 without removing the reference to 18 U.S.C.A.
§ 921(a)(30). See United States v. Roberts, 442 F.3d 128, 130 (2d Cir.
2006).
8 UNITED STATES v. MYERS
In support of his claim, Myers points to cases where the
offense of conviction occurred before the expiration of the
assault-weapon ban, but the sentencing took place after the
expiration. See United States v. Simmons, 485 F.3d 951 (7th
Cir. 2007) (per curiam); United States v. Whitehead, 425 F.3d
870 (10th Cir. 2005); Roberts, 442 F.3d at 130-31; United
States v. Caldwell, No. 05-5019, 182 Fed. Appx. 227, 229
(4th Cir. May 25, 2006) (per curiam). Although these cases
uniformly rejected the defendants’ claims that the repeal of
the assault-weapon ban rendered the enhancement inapplica-
ble, Myers contends that implicit in the analysis of these
courts is an assumption that the enhancement is inapplicable
if the offense occurred after the repeal of the assault-weapon
ban. See Simmons, 485 F.3d at 953-54 ("Simmons makes this
argument despite the fact that it is undisputed that
§ 921(a)(30) was in effect at the time Simmons committed the
weapons offense for which he was convicted . . . ."); White-
head, 425 F.3d at 872 ("The language of § 2K2.1(a)(4)(B) . . .
was clearly intended, in our view, to focus on the circum-
stances in existence at the time the offense of conviction was
committed."); Roberts, 442 F.3d at 129 ("We conclude that
the Sentencing Commission intended that courts determine
for purposes of § 2K2.1(a)(5) whether the firearm used by the
defendant qualified as a ‘semiautomatic assault weapon’
under § 921(a)(30) at the time of the crime."); Caldwell, 182
Fed. Appx. at 229 ("Caldwell committed the instant offense
. . . before the ban on semiautomatic firearms was repealed.
Therefore, § 921(a)(30)(B) was properly treated as remaining
in force for sentencing purposes." (citation omitted)). Accord-
ing to Myers, these cases support his view and establish that
"for purposes of the enhancement, the issue is whether the
weapons were banned at the time of the crime, not whether
they were banned at the time of sentencing." Brief of Appel-
lant at 18 (emphasis added).
As we have explained, however, the 2005 enhancement
does not turn on whether the possession of the weapon was
prohibited; it turns on whether the weapon appeared on a
UNITED STATES v. MYERS 9
specified list. The cases cited by Myers involve defendants
who committed the crime before the assault-weapon ban was
repealed, and those courts simply were not required to decide
whether the 2005 enhancement remained effective after the
repeal of the assault-weapon ban. Under these circumstances,
we decline to rely on dicta in those cases that is perhaps sup-
portive of an assumption—the repeal of the assault-weapon
ban repealed the 2005 enhancement—that is in direct conflict
with the general principles of statutory construction discussed
above.
We therefore conclude that the repeal of the assault-weapon
ban did not affect the reference in the 2005 enhancement to
§ 921(a)(30)’s list of weapons qualifying as semiautomatic
assault weapons, and we also conclude that there is no lan-
guage in the 2005 enhancement that limits its operation to
crimes committed during the life of the assault-weapon ban.
Because Myers was subject to a six-level enhancement under
the 2005 and 2006 Guidelines Manuals, the district court’s
use of the 2006 Manual did not violate the Ex Post Facto Clause.2
II.
Myers notes that under the line of cases culminating with
Booker, the use of a mandatory sentencing scheme in con-
junction with judge-made findings of fact violates the Sixth
Amendment, and Myers contends that it is implicit in that line
of cases that such a mandatory sentencing scheme would vio-
late the Fifth Amendment as well. Myers then argues that this
circuit’s post-Booker case law establishing the boundaries of
reasonableness review has created a de facto mandatory sen-
2
Our conclusion in this regard makes it unnecessary to consider the gov-
ernment’s alternative argument that the post-Booker advisory nature of the
Sentencing Guidelines removes Guideline changes from the reach of the
Ex Post Facto clause. See United States v. Demaree, 459 F.3d 791, 795
(7th Cir. 2006) ("We conclude that the ex post facto clause should apply
only to laws and regulations that bind rather than advise . . . .").
10 UNITED STATES v. MYERS
tencing system. According to Myers, the sentence imposed
under this de facto mandatory sentencing scheme thus vio-
lated his Fifth and Sixth Amendment rights and his rights of
confrontation as set forth by the Supreme Court in Crawford
v. Washington, 541 U.S. 36 (2004).
We decline to consider these arguments. A panel of this
court is required to apply and follow the decisions of prior
panels. See, e.g., McMellon v. United States, 387 F.3d 329,
332-34 (4th Cir. 2004) (en banc); Longworth v. Ozmint, 377
F.3d 437, 448 n.2 (4th Cir. 2004) (noting that panel was not
entitled to reconsider applicable precedent decided by prior
panel). Booker and its progeny have clearly established that
the Sentencing Guidelines are now advisory, and we have in
our post-Booker opinions endeavored to faithfully follow the
principles set forth by the Supreme Court. If Myers believes
that our post-Booker opinions are in fact inconsistent with the
Supreme Court precedent, he must make that argument to the
Supreme Court or to this court sitting en banc.
III.
For the reasons we have explained above, we conclude that
the repeal of the assault-weapon ban had no effect on the
post-repeal viability of the 2005 Sentencing Guidelines’
enhancement for possession of a firearm that qualified as a
semiautomatic assault weapon under 18 U.S.C.A.
§ 921(a)(30). Because Myers was subject to a six-level
enhancement under the 2005 Guidelines Manual and the 2006
Guidelines Manual, the district court’s use of the 2006 Man-
ual did not violate the Ex Post Facto Clause. Accordingly,
Myers’s sentence is hereby affirmed.
AFFIRMED