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Eighth Circuit: Plain Error to Impose Destructive-Device Enhancement for .410 Shotgun

The U.S. Court of Appeals for the Eighth Circuit remanded for resentencing on a defendant’s guilty plea because the U.S. District Court for the Northern District of Iowa improperly assessed a destructive-device enhancement.

The Court’s opinion was issued in an appeal by Adrian Zarate. He pleaded guilty to possessing an unregistered short-barreled shotgun. He did not object at sentencing to the district court applying the destructive-device enhancement, but he raised the issue on appeal. Therefore, the Eighth Circuit applied a plain error review. United States v. Parrow, 844 F.3d 801 (8th Cir. 2016) (reviewing application of enhancement for plain error because defendant didn’t object to enhancement).

The Court cited the U.S. Sentencing Guidelines Manual, § 2K2.1(b)(3)(B) in finding error. That section provides for an enhancement if the offense involved a “destructive device” as that term is defined in 26 U.S.C. § 5845(f). Turning to that section, the Court noted that a destructive device is defined, in part, as “any type of weapon … which will … 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.”

The shotgun at issue was “a .410 caliber shotgun, and therefore, by definition it had a bore diameter of less than one-half inch.” The Court concluded that the district erred in imposing the destructive device enhancement. The district court’s error affected Zarate’s substantive rights because it put him in a higher imprisonment range, the Court ruled.

Accordingly, the Court ordered resentencing without imposition of the destructive device enhancement. See: United States v. Zarate, 993 F.3d 1075 (8th Cir. 2021) 

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Related legal case

United States v. Zarate



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