US v. Simmons: Police executed a search warrant at Simmons’ home, where they found 10 unregistered firearms covered by the National Firearms Act, along with 33 other firearms. Also found was “evidence of unlawful drug use,” which Simmons admitted to later (he also tested positive). He pleaded guilty to possession of an unregistered machine gun – four “auto sears” required to be registered under the NFA. The probation officer recommended enhancements to Simmons’ offense level based on the number of firearms and that one of the firearms was stolen. In doing so, all the firearms recovered were considered, not just the 10 NFA ones. The district court overruled Simmons’ objections to the Guideline calculations, but ultimately imposed a downward variance sentence of 36 months in prison.
On appeal, the Fourth Circuit vacated Simmons’ sentence. Although the court did reject Simmons’ argument that his base offense level, elevated by being a “prohibited person” in possession of the firearms, violated the Second Amendment under Bruen, the court did agree that the district court improperly applied the enhancements by considering both NFA and non-NFA weapons. In doing so, the district court failed to find that the non-NFA weapons were either part of the “offense of conviction” (they couldn’t be) or relevant conduct (they weren’t). At bottom, Simmons’ possession of non-NFA firearms was not “relevant” to his possession of the NFA weapons. The court additionally concluded that the error, even in spite of the downward variance, was not harmless.
NOTE: I was counsel on the briefs in this case, which my colleague Lex Coleman argued.
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