In United States v. Lucas, --- F.4th ---, No. 22-50064 (9th Cir. 2023), the Court reversed the district court’s sentencing order, which imposed a heightened base offense level under U.S.S.G. § 2K2.1(a)(4)(B). The Court held that the district court committed error in finding, by clear and convincing evidence, that the subject magazine could accept more than 15 rounds of ammunition at the time of the offense.
What is more interesting about the opinion are the issues discussed but not decided.
First, the Court left open the possibility that Application Note 2 to U.S.S.G. § 2K2.1(a)(4)(B), which defines a “semiautomatic firearm that is capable of accepting a large capacity magazine,” is inconsistent with U.S.S.G. § 2K2.1(a)(4)(B) or that U.S.S.G. § 2K2.1(a)(4)(B) is unambiguous so as to defeat resort to Application Note 2.
In a future case, we could see the Court hold that this application note does not control.
Second, the Court left open the possibility of reconsidering the Circuit law that where the use of a sentencing enhancement has an “extremely disproportionate impact on the sentence,” due process requires facts underlying such an enhancement be proven by clear and convincing evidence.
The Court noted, "[t]his rule was crafted before the Supreme Court altered the sentencing landscape in United States v. Booker, 543 U.S. 220 (2005), and this court stands alone in continuing to apply such a rule after Booker."
Who knows if the Court will take this issue en banc.
