FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
CRAIG A. THOMASIAN, No. 04-35360
Claimant-Appellant,
v. D.C. No.
CV-03-00886-MFM
ONE SENTINEL ARMS STRIKER-12 OPINION
SHOTGUN SERIAL NO. 001725, IN
REM,
Defendant.
Appeal from the United States District Court
for the District of Oregon
Malcolm F. Marsh, District Judge, Presiding
Submitted July 11, 2005*
Portland, Oregon
Filed July 26, 2005
Before: Pamela Ann Rymer, A. Wallace Tashima,
Circuit Judges, and Charles R. Weiner,** Senior Judge.
Opinion by Judge Weiner
*This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
**The Honorable Charles R. Weiner, Senior United States District
Court Judge for the Eastern District of Pennsylvania, sitting by designa-
tion.
8637
UNITED STATES v. ONE SENTINEL ARMS STRIKER-12 8639
COUNSEL
Richard E. Gardiner, Esquire, Fairfax, Virginia, for appellant
Craig Thomasian.
Karin J. Immergut, United States Attorney for the District of
Oregon, Leslie J. Westphal, Assistant United States Attorney
8640 UNITED STATES v. ONE SENTINEL ARMS STRIKER-12
for the District of Oregon, Portland, Oregon, for appellee
United States of America.
OPINION
WEINER, Senior District Judge:
This is a civil in rem forfeiture action in which the United
States sought to forfeit defendant property, a Sentinel Arms
Striker-12 shotgun, serial no. 001725 (“Striker-12 shotgun”),
on the basis that the Striker-12 shotgun is a “destructive
device” possessed in violation of the National Firearms Act
(“NFA”). 26 U.S.C. §§ 5861(d), 5872. The claimant, Craig
Thomasian, filed a claim of interest and then moved to dis-
miss the complaint for failure to state a claim, arguing that the
Bureau of Alcohol, Tobacco and Firearms (“ATF”) can not
properly classify the Striker-12 shotgun as a “destructive
device” pursuant to 26 U.S.C. § 5845(f)(2), and that Congress
unconstitutionally delegated legislative authority to ATF. The
district court found that the United States had properly stated
a claim for forfeiture and denied Thomasian’s motion to dis-
miss. On May 17, 2004, the district court entered a final judg-
ment of forfeiture against defendant. Thomasian timely
appealed. We find Thomasian’s arguments without merit, and
affirm the decision below.
DISCUSSION
Questions of statutory interpretation are reviewed de novo.
United States v. Cabaccang, 332 F.3d 622, 624-25 (9th Cir.
2003) (en banc). Challenges to the constitutionality of a stat-
ute are questions of law and are also reviewed de novo.
United States v. Carranza, 289 F.3d 634, 643 (9th Cir. 2002),
cert. denied, 123 S.Ct. 572 (2002).
[1] The National Firearms Act defines a destructive device
as, “any type of weapon by whatever name known which will,
UNITED STATES v. ONE SENTINEL ARMS STRIKER-12 8641
or which may be readily converted to, expel a projectile by
the action of an explosive or other propellant, the barrel or
barrels of which have a bore of more than one-half inch in
diameter, except a shotgun or shotgun shell which the Secre-
tary finds is generally recognized as particularly suitable for
sporting purposes[.]” 26 U.S.C. § 5845(f)(2) (emphasis
added). Thomasian argues that according to the doctrine of
the last antecedent, the clause “which the Secretary finds is
generally recognized as particularly suitable for sporting pur-
poses,” modifies “shotgun shell,” but not “shotgun.” Thus, the
statute would categorically exclude all shotguns from the defi-
nition of a destructive device.
[2] “In determining the scope of a statute, a court must look
first to the statute’s language and structure. If the statute’s
language is unambiguous, its plain language controls except
in rare and exceptional circumstances.” United States v.
LeCoe, 936 F.2d 398, 402-03 (9th Cir. 1991) (internal cita-
tions and quotations omitted). As the Federal Circuit recently
noted, § 5845(f)(2) is not ambiguous and the plain language
of the statute indicates that the qualifying clause modifies
both “shotgun” and “shotgun shell.” Demko v. United States,
216 F.3d 1409, 1453 (Fed. Cir. 2000). As the Federal Circuit
also explained, following the last antecedent argument in this
case would create an “absurd result.” Id. At 1053. Under Tho-
masian’s argument, “§5845(f)(2) would have the incongruous
effect that no shotgun could be a ‘destructive device,’ but all
shotgun shells (except those generally recognized as particu-
larly suitable for sporting purposes) would be ‘destructive
devices.’ ” Id. This would be an absurd result indeed.
[3] The plain language of the statute and the legislative his-
tory make clear that the phrase “generally recognized as par-
ticularly suitable for sporting purposes,” modifies “shotgun,”
as well as “shotgun shell.” See H.R. Rep. No. 90-1956 (1968),
reprinted in 1968 U.S.C.C.A.N. 4426, 4427. Moreover, as we
have specifically recognized, the doctrine of the last anteced-
ent “must yield to the most logical meaning of a statute that
8642 UNITED STATES v. ONE SENTINEL ARMS STRIKER-12
emerges from its plain language and legislative history.”
Northwest Forest Res. Council v. Glickman, 82 F.3d 825, 833
(9th Cir. 1996).
[4] Thomasian next argues that the phrase “generally recog-
nized as suitable for sporting purposes” contained in 26
U.S.C. § 5845(f)(2) unconstitutionally delegates legislative
authority to ATF. We disagree. “So long as Congress shall lay
down by legislative act an intelligible principle to which the
person or body authorized to exercise the delegated authority
is directed to conform, such legislative action is not a forbid-
den delegation of legislative power.” Mistretta v. United
States, 488 U.S. 361, 372 (1989). As the Federal Circuit cor-
rectly held, the sporting purpose standard meets the “intelligi-
ble principles” test. Demko, 216 F.3d at 1054. The Federal
Circuit is not the only court to reach this conclusion. This
exact standard, contained in the Gun Control Act, was held
constitutional in Gilbert Equipment Co., v. Higgins, 709 F.
Supp. 1071 (S.D. Ala. 1989), aff’d. 894 F.2d 412 (11th Cir.
1990). The fact that this standard is non-quantitative does not
change our result, as the Supreme Court has often held that
non-quantitative standards do not violate the nondelegation
doctrine. See, e.g., Am. Power & Light Co. v. SEC, 329 U.S.
90, 104 (1946) (upholding statute giving SEC authority to
modify corporate structures so that they are not “unduly or
unnecessarily complicate[d]” and do not “unfairly or inequita-
bly distribute voting power among security holders”); see also
Yakus v. United States, 321 U.S. 414, 419-20, 423-27 (1944)
(upholding statute giving agency power to set prices that “will
be generally fair and equitable”).
Accordingly, the decision of the district court is
AFFIRMED.