1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA :

: Criminal Action No. 05-0398

v. :

: Civil Action No. 10-4309

EDWARD ROSS :

M E M O R A N D U M

PRATTER, J. NOVEMBER 1, 2013

Edward Ross, a career criminal who is currently serving a 40-year sentence for ten drugrelated and firearms offenses, seeks postconviction relief under 28 U.S.C. § 2255. Although Mr. 

Ross has persistently pressed for the application of the Supreme Court’s decision in Staples v. 

United States, 511 U.S. 600 (1994), to the jury instructions for Counts VII and VIII of his case, 

for the reasons discussed below, there was no error in not incorporating Staples in the 

instructions for Count VII and the potential error under Count VIII was harmless. Each of Mr. 

Ross’s other claims has been considered extensively, and rejected, previously. Therefore, Mr. 

Ross’s Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct a Sentence (“Motion”) 

(Docket No. 107) must be denied.

I

A federal jury convicted Mr. Ross on ten drug-related and firearms offenses. On Counts I 

through IV of the Superseding Indictment, Mr. Ross was found guilty of distribution of cocaine 

in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). Mr. Ross was found guilty on Count V of 

possession with intent to distribute cocaine. On Counts VI and VII, the jury found him guilty of 

possessing and using a firearm and, in particular, a machinegun in furtherance of a drug 

trafficking crime in violation of 18 U.S.C. § 924(c)(1). The jury also found him guilty on Count 
2

VIII of possession of a machinegun in violation of 18 U.S.C. § 922(o)(1) and, on Counts IX and 

X, guilty as a felon in possession of firearms in violation of 18 U.S.C. § 922(g)(1).

After the verdict, Mr. Ross moved under Federal Rule of Criminal Procedure 29 for a 

judgment of acquittal on Counts V through X or, in the alternative, under Rule 33 for a new trial.

The Court, finding the evidence sufficient to warrant a conviction on each of the challenged 

counts, denied both motions. Docket No. 89, available at United States v. Ross, No. 05-cr-398, 

2007 WL 2571620 (E.D. Pa. Aug. 31, 2007).

1

The Court subsequently sentenced Mr. Ross to 40 years’ imprisonment followed by eight 

years’ supervised release. Jan. 9, 2008 Sentencing Tr. N.T. 129-30; Jan. 11, 2008 Judgment 

(Docket No. 96). Because of his prior criminal history—which included two felony drug 

crimes—Mr. Ross had accumulated 12 criminal history points under United States Sentencing 

Guidelines Manual §§ 4A1.1 through 4A1.3, not quite enough for the 13 points that would put 

him into criminal history Category VI, the highest, see U.S. SENTENCING GUIDELINES MANUAL

ch. 5, pt. A (Sentencing Table). However, because of his two prior drug-related offenses and the 

nature of his instant crimes, Mr. Ross nonetheless was subject to the provisions of the career 

offender Guideline, id. § 4B1.1,

2

and thus Category VI and its equivalent.

3 Accordingly, for 

 

1 Upon motion of the United States following sentencing, Counts VI and IX were dismissed. 

Jan. 11, 2008 Judgment (Docket No. 96).

2

Sentencing Guidelines Manual § 4B1.1(a) provides:

A defendant is a career offender if (1) the defendant was at least eighteen 

years old at the time the defendant committed the instant offense of conviction; 

(2) the instant offense of conviction is a felony that is either a crime of violence or 

a controlled substance offense; and (3) the defendant has at least two prior felony 

convictions of either a crime of violence or a controlled substance offense.

U.S. SENTENCING GUIDELINES MANUAL § 4B1.1(a).
3

Count VII, possession of a machinegun in furtherance of a drug trafficking crime, Mr. Ross 

earned the mandatory 30 years. Jan. 9, 2008 Tr. N.T. at 130:3-5; Jan. 11, 2008 Judgment. For 

each of Counts I through IV, the drug offenses, Count VIII, possession of a machinegun, and 

Count X, possession of a firearm by a felon, he earned 10-year sentences to run concurrently 

with each other. Jan. 9, 2008 Tr. N.T. at 129-30; Jan. 11, 2008 Judgment. But, in accordance 

with 18 U.S.C. § 924(c)(1)(D)(ii), the 30-year sentence for Count VII will run consecutively with 

the aforementioned 10-year sentences. Jan. 9, 2008 Tr. N.T. at 130:3-5; Jan. 11, 2008 Judgment.4

The Third Circuit Court of Appeals affirmed Mr. Ross’s conviction and sentence. United 

States v. Ross, 323 F. App’x 117, 120 (3d Cir. 2009).

II

In his Motion, Mr. Ross sets forth five grounds for challenging his sentence: (1) 

ineffective assistance of counsel for counsel’s failure to raise insufficiency of the evidence with 

regard to Count VIII (his conviction under 18 U.S.C. § 922(o) for possession of a machinegun); 

 

3 Category VI status, in addition to being triggered by a defendant’s prior accumulation of 13

or more criminal history points, also attaches by automatic operation of subsection 4B1.1(b), but 

only to offenses falling under that subsection—and offenses under 18 U.S.C. § 924(c) fall 

instead under subsection 4B1.1(c). See U.S. SENTENCING GUIDELINES MANUAL § 4B1.1(b) 

(“Except as provided in subsection (c), . . . the offense level from the table in this subsection

shall apply. A career offender’s criminal history category in every case under this subsection

shall be Category VI.” (emphases added)); id. § 4B1.1(c) (“If the defendant is convicted of 18 

U.S.C. § 924(c) . . . , and the defendant is determined to be a career offender under subsection 

(a) . . . .”). But as the example in the commentary indicates, Category VI will still attach on the 

basis of a qualifying non–§ 924(c) offense. See id. § 4B1.1 cmt. 3(E). Further, the reason that 

Category VI itself does not attach in the case of § 924(c) offenses is because “subsection (c)(3) 

provides a sentence at or near the statutory maximum for these offenders by using guideline 

ranges that correspond to criminal history category VI and offense level 37,” id. § 4B1.1 cmt. 

background, and so, in effect “subsection (b) exempts cases that arise under subsection (c) 

because the provisions of subsection (c) make assigning a defendant a criminal history category 

superfluous,” United States v. Marseille, 377 F.3d 1249, 1257 n.12 (11th Cir. 2004).

4

See also infra note 11.
4

(2) ineffective assistance of counsel for counsel’s failure to raise insufficiency of the evidence 

with regard to Count V (his conviction under 21 U.S.C. § 841(a)(1) and (b)(1)(B) for possession 

of 500 or more grams of cocaine with intent to distribute); (3) ineffective assistance of counsel 

for counsel’s failure to raise insufficiency of the evidence with regard Counts VI, VII, and VIII 

for Mr. Ross’s constructive possession of the machinegun; (4) a Brady violation for the United 

States’ intentional suppression and withholding of exculpatory evidence; and (5) prosecutorial 

misconduct for intentionally deceiving and misleading the jury with knowingly fabricated 

evidence. In his Motion, Mr. Ross conceded that he had already raised his second, fourth, and 

fifth grounds (of course, directly, and not as incorporated into ineffective assistance of counsel 

claims) in his Rule 29 and 33 motions and that the Court had ruled upon these motions in its 

August 31, 2007 Memorandum. See also Ross, 2007 WL 2571620.

* * *

Mr. Ross’s first and third grounds present slightly more complicated questions. Mr. Ross 

argues first the ineffectiveness of his trial and appellate counsel for failure to raise the 

insufficiency of the evidence for his conviction for possession of a machinegun under 18 U.S.C. 

§ 922(o)(1). In particular, Mr. Ross creditably argued in his September 18, 2013 supplemental

briefing that the rule and rationale from United States v. Staples, 511 U.S. 600, applies to 

§ 922(o)(1)—namely, that the Government must prove not only that the defendant possessed a 

machinegun, but that he knew of the characteristics of the firearm that brought it within the 

statutory definition of a machinegun. Mr. Ross argues that the relevant jury instructions were in 

error because, while they required the jury to find that the firearm in question was a machinegun 

and that he knowingly possessed the firearm, they did not include an additional instruction that 

the jury must also find that Mr. Ross knew of the characteristics of the firearm that made it a 
5

machinegun—i.e., that he knew the gun was a machinegun. Mr. Ross’s third ground is the same 

as his first, but with respect to 18 U.S.C. § 924(c)(1)(B)(ii), for possession of a machinegun in 

furtherance of a drug trafficking crime.

Following a request for further briefing, the United States responded to Mr. Ross’s

Staples specific-intent argument with a supplemental memorandum of its own. The Government 

conceded that § 922(o)(1) requires the prosecution to prove to the jury that the defendant knew 

of the relevant characteristics of the firearm, and thus requires such a jury instruction, but 

contested that any such specific mens rea requirement should be implied under § 924(c).

III

Mr. Ross’s second, fourth, and fifth grounds in the instant Motion were issues he raised, 

albeit directly rather than through ineffective assistance of counsel claims, in his Rule 29 and 33 

motions. Upon careful review, the Court finds that these grounds are indeed duplicative and 

concludes, therefore, that Mr. Ross can obtain no relief upon them. See Ross, 2007 WL 2571620, 

at *4 (sufficiency of the evidence for conviction on Count V for possession of 500 or more 

grams of cocaine); id. at *14-16 (Brady violations); id. at *16-19 (misconduct). To the extent that 

Mr. Ross added contentions in his Reply (Docket No. 114)—for instance, with regard to the 

fifth ground, for prosecutorial misconduct, that “[t]he prosecutor also made inappropriate 

statements” in closing argument, Rep. at 35—these contentions are meritless attempts to rehash 

his earlier arguments. As the Government argues, “it is certainly permissible for any party to 

encourage a jury to credit a particular person’s testimony based on that person’s occupation and 

experience.” Gov’t’s Supp. Resp. at 14 (Docket No. 120). Finally, to the extent that Mr. Ross’s 

first and third grounds depend on his challenge to the jury’s finding that he constructively 

possessed the firearms in question, those claims are unavailing for the reasons stated in the 
6

Court’s prior opinion. See id. at *3-4. And, of course, if the claims are meritless, then there can 

be no harm resulting from counsel’s failure to raise them. See Strickland v. Washington, 466 U.S. 

668, 697 (1984).

5

Thus, only two questions remain (along with any derivative questions they may raise).

First: Was Mr. Ross’s counsel ineffective under Strickland and its progeny for failing to contest 

the § 922(o)(1) (Count VIII) jury instructions as lacking the particular directive that the jury 

must find that Mr. Ross knew of the characteristics of his firearm that made it a machinegun? 

Second: Was Mr. Ross’s counsel ineffective for failing to raise the same issue with respect to 

§ 924(c)(1)(B)(ii)? For the reasons that follow, the answer to both questions is no. Answering 

those questions depends, first, on understanding the nature of Congress’s machinegun 

prohibitions; second, on the mens rea requirements for each statute; and, finally, whether any 

error was prejudicial under Strickland.

 

5

The Strickland Court explained: 

Although we have discussed the performance component of an ineffectiveness 

claim prior to the prejudice component, there is no reason for a court deciding an 

ineffective assistance claim to approach the inquiry in the same order or even to 

address both components of the inquiry if the defendant makes an insufficient 

showing on one. In particular, a court need not determine whether counsel’s 

performance was deficient before examining the prejudice suffered by the 

defendant as a result of the alleged deficiencies. The object of an ineffectiveness 

claim is not to grade counsel’s performance. If it is easier to dispose of an 

ineffectiveness claim on the ground of lack of sufficient prejudice, which we 

expect will often be so, that course should be followed. Courts should strive to 

ensure that ineffectiveness claims not become so burdensome to defense counsel 

that the entire criminal justice system suffers as a result.

The principles governing ineffectiveness claims should apply in federal 

collateral proceedings as they do on direct appeal or in motions for a new trial.

Strickland, 466 U.S. at 697.
7

A

Section 5845 of the Internal Revenue Code provides the operative definitions of 

“firearm” and “machinegun” for 18 U.S.C. §§ 922(o) and 924(c):

The term “machinegun” means any weapon which shoots, is designed to shoot, or 

can be readily restored to shoot, automatically more than one shot, without 

manual reloading, by a single function of the trigger. The term shall also include 

the frame or receiver of any such weapon, any part designed and intended solely 

and exclusively, or combination of parts designed and intended, for use in 

converting a weapon into a machinegun, and any combination of parts from 

which a machinegun can be assembled if such parts are in the possession or under 

the control of a person.

I.R.C. § 5845(b). Section 922(o) defines a crime of simple possession: “it shall be unlawful for 

any person to transfer or possess a machinegun,” 18 U.S.C. § 922(o)(1), outside of limited 

governmental exceptions and a grandfather clause, see id. § 922(o)(2), neither of which, of 

course, applies here. Section 924(c)(1)(B)(ii), as discussed in greater detail below, provides a 30-

year mandatory minimum for individuals convicted of using, carrying, or possessing a 

machinegun in furtherance of a drug trafficking crime. See § 924(C)(1)(A), (B)(ii).

* * *

In 1994, in the seminal case of Staples v. United States, 511 U.S. 600, the Supreme Court 

addressed the question of whether a different federal statute requiring registration of covered 

firearms and thus, by reference, machineguns, had a mens rea requirement. In the absence of any 

words in the statute related to an intent or state of mind requirement, the defendant wanted the 

Court to imply one. Agreeing with the defendant, the Supreme Court rejected the Government’s 

contention that 

Congress intended the Act to regulate and restrict the circulation of dangerous 

weapons. Consequently, in the Government’s view, this case fits in a line of 

precedent concerning what we have termed “public welfare” or “regulatory” 

offenses, in which we have understood Congress to impose a form of strict 

criminal liability through statutes that do not require the defendant to know the 
8

facts that make his conduct illegal. In construing such statutes, we have inferred 

from silence that Congress did not intend to require proof of mens rea to establish 

an offense.

Id. at 606. Instead, the Supreme Court reasoned, the long history of lawful gun possession in the 

United States militated in favor of implying a mens rea requirement into the statute:

[D]espite their potential for harm, guns generally can be owned in perfect 

innocence. Of course, we might surely classify certain categories of guns—no 

doubt including the machineguns, sawed-off shotguns, and artillery pieces that 

Congress has subjected to regulation—as items the ownership of which would 

have the same quasi-suspect character we attributed to owning hand grenades in 

[United States v. Freed, 401 U.S. 601 (1971)]. But precisely because guns falling 

outside those categories traditionally have been widely accepted as lawful 

possessions, their destructive potential, while perhaps even greater than that of 

some items we would classify along with narcotics and hand grenades, cannot be 

said to put gun owners sufficiently on notice of the likelihood of regulation to 

justify interpreting [the statute in question] as not requiring proof of knowledge of 

a weapon’s characteristics.

Id. at 611-12. The Staples Court therefore held that because “the Government’s construction of 

the statute potentially would impose criminal sanctions on a class of persons whose mental 

state—ignorance of the characteristics of weapons in their possession—makes their actions 

entirely innocent,” id. at 614-15, “to obtain a conviction, the Government should have been 

required to prove that petitioner knew of the features of his [machinegun] that brought it within 

the scope of the Act,” id. at 619. But, emphasizing the narrowness of its holding, the Court added 

that “our holding depends critically on our view that if Congress had intended to make outlaws 

of gun owners who were wholly ignorant of the offending characteristics of their weapons, and 

to subject them to lengthy prison terms, it would have spoken more clearly to that effect.” Id. at 

620.

1

Although the applicability of this rule to § 922(o)(1) was not before the Staples Court and 

the Supreme Court has never reached it, the courts of appeals that have confronted the question 
9

of whether § 922(o)(1) likewise contains an implied mens rea requirement have all reached the 

same conclusion—that it does.6 As the Government here concedes, “The government has 

recognized, and courts have held, that Staples applies to a prosecution under 18 U.S.C. 

§ 922(o)(1) for possession of a machine gun.” Gov’t’s Supp. Resp. at 3. Although the Third 

Circuit Court of Appeals is not among those appellate courts to have considered the issue, this 

Court has no serious doubt that it would agree with the so-far uniform interpretation that Staples

requires the United States to prove that a defendant charged with a violation of § 922(o)(1) knew 

of the characteristics of his weapon that brought it within the range of § 5845(b).

Here, the jury instructions that the Government proposed and the Court gave directed the 

jury that it had to find “Number one, that the defendant possessed a firearm as described in 

Count Eight of the superseding indictment”; “Two, that the firearm that the defendant possessed 

 

6

In Staples, the Supreme Court held that under 26 U.S.C. § 5861(d), which criminalizes 

possession of an unregistered machinegun, the Government must prove not only (1) the 

defendant’s knowing possession of a covered firearm—as “the Government conceded” in 

Staples—see Staples, 511 U.S. at 621 (Ginsburg, J., concurring)—but also (2) “that [the 

defendant] knew of the features of his [firearm] that brought it within the scope of the Act”—

i.e., of the features that made it a machinegun, id. at 619 (majority opinion).

The Government has previously acknowledged that “the Supreme Court’s decision in Staples

applies with equal force to prosecutions under 18 U.S.C. § 922(o).” United States v. Rogers, 94 

F.3d 1519, 1523 (11th Cir. 1996). In the past, at least four Justices of the Supreme Court have 

simultaneously expressed this view, although the issue has never squarely reached the Court. See

Rogers v. United States, 522 U.S. 252, 254 n.1 (1998) (opinion of Stevens, J., joined by Thomas, 

Ginsburg & Breyer, JJ., dismissing the writ of certiorari as improvidently granted) (“[P]etitioner

was charged with the unlawful possession of a machinegun in violation of 18 U.S.C. § 922(o). 

His conviction on that count was reversed on appeal after the Government conceded that the 

evidence did not establish that petitioner knew that the gun had been modified to act as a fully 

automatic weapon. Reversal was therefore required under Staples v. United States, which was 

decided after the trial in this case.” (citations omitted)). And at least six circuit courts of appeals 

have agreed, although the Third Circuit Court of Appeals has not yet considered the issue. See

United States v. Smith, 508 F.3d 861, 866 & n.3 (8th Cir. 2007); United States v. NievesCastano, 480 F.3d 597, 600 (1st Cir. 2007); United States v. Camp, 343 F.3d 743, 745-46 (5th 

Cir. 2003); United States v. McGiffen, 267 F.3d 581, 589-90 (7th Cir. 2001); United States v. 

Gravenmeir, 121 F.3d 526, 529-30 (9th Cir. 1997); Rogers, 94 F.3d at 1523 (11th Cir.).
10

was a machine gun. And number three, that the defendant acted knowingly.” May 16, 2006 Tr. 

N.T. at 90:19–91:5. The instructions did not, however, also separately direct the jury that it had 

to find that Mr. Ross knew of the characteristics of the firearm charged in Count VIII that 

brought it within § 5845(b).7 Although it is likely that the instruction “that the defendant acted 

knowingly” was not enough to meet this specific intent requirement, the Court need not resolve 

that particular question because “[t]he government . . . does not dispute that the jury was not 

given an instruction consistent with Staples.” Gov’t’s Supp. Resp. at 4 n.2, and what error there 

may have been was, for the reasons discussed below, harmless.

2

Section 924(c)(1)(B)(ii) is another matter, however. As the two courts of appeals to have 

confronted the issue since the Supreme Court’s decision in United States v. O’Brien, 130 S. Ct. 

2169 (2010), have concluded, 18 U.S.C. § 924(c)(1)(B)(ii) does not fall under Staples’s narrow 

rule. Mr. Ross’s argument is that § 924(c), like § 922(o)(1), must contain the same specific intent 

 

7 At the close of Mr. Ross’s trial, the jury instructions for Count VIII of the Superseding 

Indictment provided, in full:

Section 922(o) of Title 18 of the United States Code provides in part that it 

shall be unlawful for any person to possess a machine gun. The defendant is 

charged in Count Eight of the superseding indictment with possession of a 

machine gun, in violation of Section 922(o) of Title 18. In order for Mr. Ross to 

be found guilty of that charge, the Government must prove each of the following 

elements beyond a reasonable doubt. Number one, that the defendant possessed a 

firearm as described in Count Eight of the superseding indictment. Two, that the 

firearm that the defendant possessed was a machine gun. And number three, that 

the defendant acted knowingly.

May 16, 2006 Tr. N.T. at 90:19–91:5 (emphasis added). No further instruction on the third 

requirement, that Mr. Ross “acted knowingly,” was suggested by the Government, see

Government’s Proposed Jury Instructions (Docket No. 55), and none was provided, see May 16, 

2006 Tr.
11

requirement. But despite sharing references to I.R.C. § 5845(b)’s definition of a “machinegun,” 

the two statutes differ dramatically in purpose and context.

Section 924(c)(1)(A) provides:

Except to the extent that a greater minimum sentence is otherwise provided by 

this subsection or by any other provision of law, any person who, during and in 

relation to any crime of violence or drug trafficking crime (including a crime of 

violence or drug trafficking crime that provides for an enhanced punishment if 

committed by the use of a deadly or dangerous weapon or device) for which the 

person may be prosecuted in a court of the United States, uses or carries a firearm, 

or who, in furtherance of any such crime, possesses a firearm, shall, in addition to 

the punishment provided for such crime of violence or drug trafficking crime

shall be sentenced to certain mandatory minimum terms provided. 18 U.S.C. § 924(c)(1)(A). 

Subsection (B)(ii) otherwise provides for a greater punishment for a more serious offense: “If the 

firearm possessed by a person convicted of a violation of this subsection is a machinegun or a 

destructive device, or is equipped with a firearm silencer or firearm muffler, the person shall be 

sentenced to a term of imprisonment of not less than 30 years.” Id. § 924(c)(1)(B)(ii). Unlike 

§ 922(o)(1), which can be violated by simple possession, and which therefore required the 

Supreme Court to imply a mens rea requirement to avoid the “danger of ensnaring an altar boy 

who made an innocent mistake,” United States v. Burwell, 690 F.3d 500, 507 (D.C. Cir. 2012)

(en banc) (citation, alteration, and internal quotation marks omitted), cert. denied, 133 S. Ct. 

1459, § 924(c)(1) requires that the possession or use of a firearm further the commission of a 

drug trafficking crime.

Although the Supreme Court has held that § 924(c)(1)(B)(ii) requires the Government to 

prove to a jury, as “an element of [the] offense,” that the weapon the defendant possessed or used 

was a machinegun, O’Brien, 130 S. Ct. at 2180, the Court has not yet addressed whether “a 

defendant who uses, carries, or possesses a firearm must be aware of the weapon’s 

characteristics. [The O’Brien] opinion expresses no views on the point,” id. at 2173.
12

But there is little doubt about the correct rule in the courts of appeals. After O’Brien, 

which established that the identity of the firearm as a machinegun was an element that must be 

proved to the jury as opposed to a sentencing factor that could be determined by the judge, see

id., only two courts of appeals have reached the specific intent question at issue here. But they 

have agreed that § 924(c)(1)(B)(ii) does not contain any such implied specific mens rea

requirement. See Burwell, 690 F.3d at 506-08 (D.C. Cir.); United States v. Haile, 685 F.3d 1211, 

1218 (11th Cir. 2012) (relying on the pre-O’Brien decision in United States v. Ciszkowski, 492 

F.3d 1264, 1268-69 (11th Cir. 2007)), cert. denied, 133 S. Ct. 1723 (2013). As the Court of 

Appeals for the D.C. Circuit explained in United States v. Burwell, no court of appeals has 

rejected its rule that § 924(c)(1)(B)(ii) does not contain a specific mens rea requirement. See 690 

F.3d at 511. Rather, before O’Brien, several other circuits, although erroneously (according to 

O’Brien) interpreting § 924(c)(1)(B)(ii) as a sentencing factor rather than as an element of the 

offense, held that § 924(c)(1)(B)(ii) did not require a specific mens rea. See Ciszkowski, 492 F.3d 

at 1268-69 (basing holding on language of the statute and inapplicability of Staples); United 

States v. Gamboa, 439 F.3d 796, 812 (8th Cir. 2006) (basing holding on the view that the 

machinegun provision was a sentencing factor); United States v. Eads, 191 F.3d 1206, 1212-14 

(10th Cir. 1999) (same).

8

 

8 Before O’Brien, at least two courts of appeals, including the Court of Appeals for the Third 

Circuit, assumed without deciding that specific knowledge of the machinegun’s characteristics 

was a required element to be submitted to the jury, but the courts made those assumptions 

because in both cases the courts “conclude[d] that the jury would have found that the Appellants 

knew that they possessed a machine gun . . . if the knowledge instruction was given.” United 

States v. Rodriguez, 54 F. App’x 739, 747 (3d Cir. 2002); see also United States v. Dixon, 273 

F.3d 636, 640-41 (5th Cir. 2001) (“It may have been preferable if the judge had instructed the 

jury that the government must prove beyond a reasonable doubt that the defendant knew that the 

weapon was a short-barreled shotgun. However . . . [u]nder the facts of this case there can be no 

doubt that defendant knew that he possessed the weapon in question and that he knew the

characteristic of that weapon.”).
13

It is quite likely that if § 924(c)(1)(B)(ii) had a mens rea requirement, it would have been 

satisfied here based on the Government’s evidence. But it is not necessary—in fact, it is 

improper—to reach that more difficult evidentiary question, because the logically antecedent 

question, whether § 924(c)(1)(B)(ii) requires the Government to prove that the defendant knew

that his firearm was a machinegun, if properly answered in accord with Burwell, disposes of Mr. 

Ross’s argument. In Burwell, the Court of Appeals for the D.C. Circuit exhaustively considered 

the issue and concluded, persuasively and en banc, that no such heightened mens rea requirement 

may be implied into § 924(c)(1)(B)(ii). This Court agrees.

Though the Burwell opinion is lengthy, learned, and deliberate, its core reasoning is 

easily summarized. Explicitly considering the relevance of Staples and other Supreme Court 

decisions addressing the implication of mens rea requirements, the Burwell Court explained:

[I]n Staples v. United States, [the Supreme Court] implied a mens rea requirement 

in 26 U.S.C. § 5861(d), a provision that made it “unlawful for any person . . . to 

receive or possess a firearm which is not [federally] registered.” 511 U.S. 600, 

605 (1994). The Court held the statute did require the Government to prove mens 

rea because a contrary ruling would “criminalize a broad range of apparently 

innocent conduct.” Id. at 610. In closing, the Court . . . reason[ed] that “if 

Congress had intended to make outlaws of gun owners who were wholly ignorant 

of the offending characteristics of their weapons, and to subject them to lengthy 

prison terms, it would have spoken more clearly to that effect.” Id. at 620.

Burwell, 690 F.3d 500 at 506. “[T]he presumption in favor of mens rea,” the Burwell Court 

continued, “was triggered by the need to avoid imposing substantial penalties—including jail 

sentences—on innocent citizens who had no idea they were committing a crime.” Id. at 506-07.

But for obvious reasons, “[t]he concerns animating the presumption in favor of mens rea

in [the Supreme Court’s case law, including Staples] simply are not present” with respect to 

§ 924(c)(1)(B)(ii). Id. at 507. The Burwell Court reasoned:

Section 924(c)(1)(B)(ii) poses no danger of ensnaring an altar boy who made an 

innocent mistake, because the government must first prove the defendant is guilty 

of either drug trafficking or a violent crime, and must further prove that the 
14

defendant intentionally used or carried a firearm, or intentionally possessed a 

firearm, during or in furtherance of that offense. There is thus no risk of 

unfairness because the defendant “knows from the very outset that his planned 

course of conduct is wrongful.” United States v. Feola, 420 U.S. 671, 685 (1975). 

Even [amicus National Association of Criminal Defense Lawyers’]

characterization of [this rule] as imposing “strict liability” is inaccurate, as the 

government is still required to establish mens rea with respect to the predicate 

crime and with respect to the use, carrying, or possession of the firearm.

Burwell, 690 F.3d at 507 (citation, internal quotation marks, and alteration omitted).

To put the matter in still simpler terms: This Court remains unpersuaded that Congress 

did not intend to impose harsher penalties, even if they resemble strict liability with regard to one 

element, on drug traffickers whose firearms turn out to be more dangerous than most, or even 

that Congress had the remotest concern that drug traffickers might not know that their firearms 

were machineguns. Indeed,

[n]or is it unusual to punish individuals for the unintended consequences of their 

unlawful acts. Perhaps the most obvious example is the felony-murder rule. In 

Dean v. United States, 556 U.S. 568 (2009), the Supreme Court suggested the 

machinegun provision and the felony murder rule are analytically congruent. 

Moreover, courts have concluded similarly structured statutes do not require a 

showing of mens rea. For example, this Court has interpreted 21 U.S.C. § 841, 

which imposes an additional ten-year penalty for trafficking certain types or 

quantities of drugs, as not requiring the government to prove the defendant knew 

how much or what type of drug he was selling. United States v. Branham, 515 

F.3d 1268, 1276 (D.C. Cir. 2008). Every other circuit to have addressed the 

question has agreed. See id. at 1275 n.3 (collecting cases).

Burwell, 690 F.3d at 507-08.

This Court agrees with the Courts of Appeals for the District of Columbia and the 

Eleventh Circuit and holds, therefore, that § 924(c)(1)(B)(ii) does not require the Government to 

prove to the jury that the defendant knew the characteristics of the weapon that made it a 

machinegun. For this reason, Mr. Ross’s claim regarding the jury instructions for Count VII fails

and it is unnecessary to consider whether his counsel was ineffective under Strickland for failing 

to raise it.
15

3

The only remaining issue, then, is whether the likely erroneous instruction on Count VIII 

for violation of 18 U.S.C. § 922(o)(1) gives rise to an ineffective assistance of counsel claim. It 

does not. Assuming, arguendo, that the instruction is erroneous and, further, that the jury would 

not have convicted Mr. Ross had it received an explicit instruction directing it to determine 

whether Mr. Ross knew not only that he possessed a firearm that was a machinegun,9but that he 

knew the firearm he possessed had the characteristics making it a machinegun under I.R.C. 

§ 5845(b), his conviction and sentence to ten years’ imprisonment under Count VIII were, as to 

him, entirely harmless. Mr. Ross’s sentence was harmless because, in sentencing Mr. Ross, the 

Court stated, “[A]s to each of Counts 8 and 10, the defendant is sentenced to serve 120 months 

concurrent with the imposition of the sentences on Counts 1 through 4 and Count 5.” Jan. 9, 

2008 Sentencing Tr. N.T. at 130:5-8 (emphasis added). While each of Counts I through IV carry

penalties of up to 30 years, see 21 U.S.C. § 841(b)(1)(C), Count V required a mandatory 

minimum of 10 years because Mr. Ross was a prior felony drug offender.

10 Further, Mr. Ross’s 

 

9

This conclusion is far from foregone. See United States v. McCulligan, 256 F.3d 97, 101 

(3d Cir. 2001) (“[N]on-structural constitutional errors, including the failure to submit an element 

of a crime to the jury, are subject to harmless error review.” (citing Neder v. United States, 527 

U.S. 1, 8-15 (1999)); United States v. Rodriguez, 54 F. App’x 739, 747 (3d Cir. 2002) (approving 

of the Fifth Circuit Court of Appeals’ holding in United States v. Dixon, 273 F.3d 636, 640-41 

(5th Cir. 2001), “that even if the court’s jury instruction was inadequate, it did not affect the 

defendant’s substantial rights because there could be no doubt that the defendant knew the 

characteristics of the weapon in question,” Rodriguez, 54 F. App’x at 747, and “conclud[ing] that 

the jury would have found that the Appellants knew that they possessed a machine gun or a gun 

with a silencer if the knowledge instruction was given,” id.).

10 See 21 U.S.C. § 841(b)(1)(B)(ii)(II) (“In the case of a violation of subsection (a) of this 

section involving 500 grams or more of a mixture or substance containing a detectable amount of 

cocaine, its salts, optical and geometric isomers, and salts of isomers . . . [i]f any person commits 

such a violation after a prior conviction for a felony drug offense has become final, such person 

shall be sentenced to a term of imprisonment which may not be less than 10 years and not more 

than life imprisonment . . . .” (emphasis added)).
16

30 years for violating § 924(c)(1)(B)(ii) must run consecutively with the 10-year sentence for 

Counts I through V.11 Thus, even if the Court were to vacate Mr. Ross’s Count VIII sentence and 

conviction under 18 U.S.C. § 922(o)(1), he would not walk free a day sooner.

Second, the conviction itself, if erroneous, was also harmless. In many cases a defendant 

might be able to argue that an extra conviction would prejudice him in the future by adding 

criminal history points, for instance, even if this contention would depend on the speculative 

prospect of his being convicted of a future crime. But Mr. Ross, as a Category VI career 

criminal, is not in a position where the addition of any criminal history points will make any 

difference if he ever again finds himself facing federal charges. And in the absence of any 

identifiable harm, counsel’s failure to call a potential foul is not actionable under Strickland.

IV

While Mr. Ross may deserve kudos for his spirited argument that 18 U.S.C. § 922(o)(1) 

requires the Government to prove that the defendant knows the characteristics of his machinegun 

that make it, in fact, a machinegun, and the jury instructions on Count VIII may therefore have 

been erroneous, any such error was entirely harmless. Mr. Ross is serving a 40 year sentence—

10 years concurrently for multiple counts of drug trafficking and 30 years to follow for his

possession of a machinegun in furtherance of these drug crimes. Although § 922(o)(1) requires 

the implication of a mens rea element in order to protect the innocent firearms owner who does

 

11 See 18 U.S.C. § 924(c)(1)(D)(ii) (“Notwithstanding any other provision of law no term of 

imprisonment imposed on a person under this subsection shall run concurrently with any other 

term of imprisonment imposed on the person, including any term of imprisonment imposed for 

the crime of violence or drug trafficking crime during which the firearm was used, carried, or 

possessed.”); see also U.S. SENTENCING GUIDELINES MANUAL § 5G1.2(e) (“[T]he sentence to be 

imposed on the 18 U.S.C. § 924(c) . . . count shall be imposed to run consecutively to any other 

count.”); U.S. SENTENCING GUIDELINES MANUAL § 4B1.1(c)(2)(A).
17

not realize that his weapon is automatic rather than semiautomatic, § 924(c)(1)(B)(ii) 

undoubtedly does not require such a showing. The justification for implying a mens rea

requirement where none appears in a statute is to protect the innocent man who, thinking he is

engaging in traditionally lawful conduct, would otherwise violate it. That rationale is not

applicable to drug traffickers bearing firearms. No heightened mens rea requirement is needed 

“to avoid criminalizing otherwise lawful conduct.” Burwell, 690 F.3d at 505. The Supreme 

Court’s jurisprudence in this regard comports with common sense. “[R]einforced by Staples, [it] 

instructs that the presumption in favor of a scienter requirement should apply to each of the 

statutory elements that criminalize otherwise innocent conduct.” United States v. X-Citement 

Video, Inc., 513 U.S. 64, 72 (1994) (emphasis added). And despite the rare case in which the 

drug trafficker is unaware that his firearm is a machinegun, § 924(c)(1)(B)(ii) serves to deter 

others like him from bringing such guns along to the drug sale—or, in a proverbial analogy, to 

the knife fight. See Burwell, 690 F.3d at 513 (“Congress likely attached such a steep penalty to 

the use of a machinegun in an attempt to deter all offenders from using such weapons.”). 

While the Third Circuit’s case law has not addressed this particular question, the Third 

Circuit Court of Appeals agrees with the principles that the Burwell Court concluded govern its 

resolution. For example, the Third Circuit Court of Appeals has recently held that to obtain a 

conviction under 21 U.S.C. § 860 for drug distribution within 1000 feet of a school,

the government does not have to show that the defendant had knowledge that he 

was possessing narcotics within 1,000 feet of a school. United States v. Dimas, 3 

F.3d 1015, 1022 (7th Cir. 1993); United States v. Falu, 776 F.2d 46, 50 (2d Cir.

1985) (“[Section 860(a)] contains no express mens rea requirement for the 

distance element of the offense.”). Second, the mens rea element for § 860(a) is 

found in the required underlying violation of § 841(a)(1), which calls for a 

knowing possession of narcotics with intent to distribute. Falu, 776 F.2d at 50 

(“This construction of [section 860(a)] does not criminalize otherwise innocent 

activity, since the statute incorporates section 841(a)(1), which already contains a 

mens rea requirement . . . .”). Third, under § 860(a), the government does not 
18

need to prove that the defendant intended to distribute the narcotics within 1,000 

feet of a school. 

United States v. Jackson, 443 F.3d 293, 299 (3d Cir. 2006). And at bottom, § 924(c)(1)(B)(ii) is 

little different.

Sections 922(o)(1) and 924(c)(1)(B)(ii) have different mens rea requirements because 

they have different purposes and present different concerns. Mr. Ross is not in a position to 

benefit from § 922(o)(1)’s heightened mens rea requirement because even if the § 922(o)(1) jury 

instructions were in error for failing to specify this heightened requirement, Mr. Ross was not 

prejudiced. His prior convictions making him a Category VI career criminal,12 together with the 

points attributed for the unchallenged counts of conviction that independently establish more 

than the 13 points required for Category VI status, see U.S. SENTENCING GUIDELINES MANUAL

ch. 5, pt. A (Sentencing Table), mean that no amount of extra criminal history points for Count 

VIII will change his future criminal history category prospects should he recidivate.13 And even 

were the Court to vacate his conviction on Count VIII, the multiple 10-year sentences that are 

running concurrently with his sentence on Count VIII mean that he would leave the Bureau of 

Prison’s custody not a day sooner. Without such a showing of prejudice, Mr. Ross cannot 

proceed on any ineffective assistance of counsel claim under Strickland.

* * *

 

12 See supra note 3 and accompanying text.

13 The Court recognizes that a future sentencing court would see on Mr. Ross’s prior criminal 

history the “extra” conviction, but given the pantheon of his Dionysian and Hadean convictions, 

where his category would be—indeed, could be—no greater, it is entirely too speculative to 

assume that this one count of conviction would serve as a material “tipping point” in the exercise 

of sentencing discretion by a hypothetical court following yet another hypothetical conviction in 

the future almost 40 years hence.
19

For the foregoing reasons, Mr. Ross’s Motion to Vacate, Correct, or Amend a Sentence 

must be denied. An Order consistent with this Memorandum follows.

BY THE COURT:

 /s/ Gene E.K. Pratter

 GENE E.K. PRATTER

United States District Judge