Whether Magazine was “Large Capacity” Was Ambiguous and Allowed Consideration of Guideline Commentary

US v. Holman: Holman was in a car accident, at the scene of which officer recovered a handgun (that had been reported stolen), with a magazine inserted, along with an additional magazine that matched the one in the firearm. Holman pleaded guilty to being a felon in possession of a firearm. In the PSR, the probation officer noted that the two magazines “contained a total of 32 rounds of ammunition” and, on that basis, recommended an enhancement for possession of a firearm with a “large capacity” magazine. The district court imposed the enhancement and sentenced Holman to 66 months in prison.

On appeal, the Fourth Circuit affirmed Holman’s sentence. Applying plain error review, and noting that Holman had not objected to the description of the magazines in the PSR, the court held there was no error in applying the enhancement in this case. The court concluded that “large capacity” is an ambiguous term and allowed resort to the Guideline commentary, which reasonably defined it as capable of accepting more than 15 rounds. The court also concluded that the firearm here was “quite obviously capable of accepting both his magazines,” given that they were the same and one was in the gun when it was recovered. The court went on to hold that any error could not have been plain, have affected Holman’s substantial rights, or been the type of error which the court should notice.