FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

CRAIG A. THOMASIAN, No. 04-35360

Claimant-Appellant,

D.C. No.

v.  CV-03-00886-MFM

ONE SENTINEL ARMS STRIKER-12 OPINION

SHOTGUN SERIAL NO. 001725, IN

REM,

Defendant. 

Appeal from the United States District Court

for the District of Oregon

Malcolm F. Marsh, District Judge, Presiding

Submitted July 11, 2005*

Portland, Oregon

Filed July 26, 2005

Before: Pamela Ann Rymer, A. Wallace Tashima,

Circuit Judges, and Charles R. Weiner,** Senior Judge.

Opinion by Judge Weiner

*This panel unanimously finds this case suitable for decision without

oral argument. See Fed. R. App. P. 34(a)(2). 

**The Honorable Charles R. Weiner, Senior United States District

Court Judge for the Eastern District of Pennsylvania, sitting by designation. 

8637
COUNSEL

Richard E. Gardiner, Esquire, Fairfax, Virginia, for appellant

Craig Thomasian.

Karin J. Immergut, United States Attorney for the District of

Oregon, Leslie J. Westphal, Assistant United States Attorney

UNITED STATES v. ONE SENTINEL ARMS STRIKER-12 8639
for the District of Oregon, Portland, Oregon, for appellee

United States of America.

OPINION

WEINER, Senior District Judge: 

This is a civil in rem forfeiture action in which the United

States sought to forfeit defendant property, a Sentinel Arms

Striker-12 shotgun, serial no. 001725 (“Striker-12 shotgun”),

on the basis that the Striker-12 shotgun is a “destructive

device” possessed in violation of the National Firearms Act

(“NFA”). 26 U.S.C. §§ 5861(d), 5872. The claimant, Craig

Thomasian, filed a claim of interest and then moved to dismiss the complaint for failure to state a claim, arguing that the

Bureau of Alcohol, Tobacco and Firearms (“ATF”) can not

properly classify the Striker-12 shotgun as a “destructive

device” pursuant to 26 U.S.C. § 5845(f)(2), and that Congress

unconstitutionally delegated legislative authority to ATF. The

district court found that the United States had properly stated

a claim for forfeiture and denied Thomasian’s motion to dismiss. On May 17, 2004, the district court entered a final judgment of forfeiture against defendant. Thomasian timely

appealed. We find Thomasian’s arguments without merit, and

affirm the decision below. 

DISCUSSION

Questions of statutory interpretation are reviewed de novo.

United States v. Cabaccang, 332 F.3d 622, 624-25 (9th Cir.

2003) (en banc). Challenges to the constitutionality of a statute are questions of law and are also reviewed de novo.

United States v. Carranza, 289 F.3d 634, 643 (9th Cir. 2002),

cert. denied, 123 S.Ct. 572 (2002). 

[1] The National Firearms Act defines a destructive device

as, “any type of weapon by whatever name known which will,

8640 UNITED STATES v. ONE SENTINEL ARMS STRIKER-12
or which may be readily converted to, expel a projectile by

the action of an explosive or other propellant, the barrel or

barrels of which have a bore of more than one-half inch in

diameter, except a shotgun or shotgun shell which the Secretary finds is generally recognized as particularly suitable for

sporting purposes[.]” 26 U.S.C. § 5845(f)(2) (emphasis

added). Thomasian argues that according to the doctrine of

the last antecedent, the clause “which the Secretary finds is

generally recognized as particularly suitable for sporting purposes,” modifies “shotgun shell,” but not “shotgun.” Thus, the

statute would categorically exclude all shotguns from the definition of a destructive device. 

[2] “In determining the scope of a statute, a court must look

first to the statute’s language and structure. If the statute’s

language is unambiguous, its plain language controls except

in rare and exceptional circumstances.” United States v.

LeCoe, 936 F.2d 398, 402-03 (9th Cir. 1991) (internal citations and quotations omitted). As the Federal Circuit recently

noted, § 5845(f)(2) is not ambiguous and the plain language

of the statute indicates that the qualifying clause modifies

both “shotgun” and “shotgun shell.” Demko v. United States,

216 F.3d 1409, 1453 (Fed. Cir. 2000). As the Federal Circuit

also explained, following the last antecedent argument in this

case would create an “absurd result.” Id. At 1053. Under Thomasian’s argument, “§5845(f)(2) would have the incongruous

effect that no shotgun could be a ‘destructive device,’ but all

shotgun shells (except those generally recognized as particularly suitable for sporting purposes) would be ‘destructive

devices.’ ” Id. This would be an absurd result indeed. 

[3] The plain language of the statute and the legislative history make clear that the phrase “generally recognized as particularly suitable for sporting purposes,” modifies “shotgun,”

as well as “shotgun shell.” See H.R. Rep. No. 90-1956 (1968),

reprinted in 1968 U.S.C.C.A.N. 4426, 4427. Moreover, as we

have specifically recognized, the doctrine of the last antecedent “must yield to the most logical meaning of a statute that

UNITED STATES v. ONE SENTINEL ARMS STRIKER-12 8641
emerges from its plain language and legislative history.”

Northwest Forest Res. Council v. Glickman, 82 F.3d 825, 833

(9th Cir. 1996). 

[4] Thomasian next argues that the phrase “generally recognized as suitable for sporting purposes” contained in 26

U.S.C. § 5845(f)(2) unconstitutionally delegates legislative

authority to ATF. We disagree. “So long as Congress shall lay

down by legislative act an intelligible principle to which the

person or body authorized to exercise the delegated authority

is directed to conform, such legislative action is not a forbidden delegation of legislative power.” Mistretta v. United

States, 488 U.S. 361, 372 (1989). As the Federal Circuit correctly held, the sporting purpose standard meets the “intelligible principles” test. Demko, 216 F.3d at 1054. The Federal

Circuit is not the only court to reach this conclusion. This

exact standard, contained in the Gun Control Act, was held

constitutional in Gilbert Equipment Co., v. Higgins, 709 F.

Supp. 1071 (S.D. Ala. 1989), aff’d. 894 F.2d 412 (11th Cir.

1990). The fact that this standard is non-quantitative does not

change our result, as the Supreme Court has often held that

non-quantitative standards do not violate the nondelegation

doctrine. See, e.g., Am. Power & Light Co. v. SEC, 329 U.S.

90, 104 (1946) (upholding statute giving SEC authority to

modify corporate structures so that they are not “unduly or

unnecessarily complicate[d]” and do not “unfairly or inequitably distribute voting power among security holders”); see also

Yakus v. United States, 321 U.S. 414, 419-20, 423-27 (1944)

(upholding statute giving agency power to set prices that “will

be generally fair and equitable”). 

Accordingly, the decision of the district court is

AFFIRMED. 

8642 UNITED STATES v. ONE SENTINEL ARMS STRIKER-12