In United States v. Bolatete, No. 18-14184 (Sept. 29,
2020) (Ed Carnes, Branch, Luck), the Court affirmed the defendant’s
conviction and sentence for possessing an unregistered silencer.
First, the Court held that the National Firearms Act was
constitutional under Congress’ taxing power.
It explained the binding circuit precedent foreclosed the defendant’s
contrary arguments.
Second, applying plain error review, the Court rejected the
defendant’s argument that the Act imposes an unconstitutional tax because it
imposes impermissible fees on the exercise of Second Amendment rights. There was no decision addressing that
argument, so any error was not plain. For
the same reason, the Court also found no plain error as to the defendant’s
argument that the Act’s application to silencers violates the Second Amendment.
Third, the Court found that there was sufficient evidence to
support the jury’s finding that he was not entrapped. Although the defendant initially told the
undercover officer that he did not want a silencer, there were others facts
that showed a predisposition to receive and possess an unregistered silencer.
Fourth, as to sentencing, the Court found that any guideline
error was harmless because the court
said it would impose the same 60-month sentence anyway, and that upward
variance was not substantively unreasonable.
