Federal 922(g)(1) Sentencing Enhancement Affirmed

Our office has received several calls from people cited for being in possession of a “ghost gun.”  The weapon is illegal not because of its plastic components, but because it lacks a serial number.  Such a weapon also may be undetected if one were to pass through a metal detector. 

There are a rising number of such “ghost guns” now being used to commit crimes and buying one is possible online to avoid the normal ten-day waiting period after one submits a Firearm Transfer report at a gun store and pays the deposit fee for the background check.  If one has a felony record, a conviction for misdemeanor domestic violence or has been held on a 5250 hold – or any one of dozens of other firearm right revoking events – this is an end-run around the traditional method of purchasing a firearm.

In August, 2020, Eligio Munoz was arrested in Sacramento County after police officers attempted to pull him over for traffic violations.  Mr. Munoz led officers on a high-speed chase before abandoning his car at the end of a dirt road and fleeing on foot.

Dry grass beneath the car soon caught on fire and engulfed the vehicle in flames.  The next day, officers inspected the burned-out car and found two nine-millimeter handguns inside a backpack near the front passenger seat. 

Officers also found a partially destroyed remains of a third gun, known as a “Polymer80.”  The lower portion of the gun was made of polymer, or plastic, and had melted in the fire.  The gun lacked a serial number.  Officers also found a loaded magazine with ammunition that was compatible with the Polymer80 and not the two nine-millimeter handguns.

An officer later testified at trial that Polymer80’s are typically sold online as kits of their component parts.  Consequently, no serial number is required and are colloquially known as “ghost guns.”

The U.S. Attorney’s Office in Sacramento filed a criminal case against Mr. Munoz for violation of 18 U.S.C. § 922(g)(1), for being a felon in possession of a firearm.

At trial, he was convicted of violating § 922(g)(1) and the U.S. Attorney’s Office sought at two-level sentencing enhancement under the United States Sentencing Guidelines, § 2K2.1(b)(1)(A), which permits a sentencing judge to increase the defendant’s offense level “[i]f the offense involved three or more firearms.” 

This enhancement increased Munoz’s sentencing range from 84 to 105 months to 100 to 120 months.

Munoz argued that the Polymer80 cannot be counted as a firearm because it did not count as a firearm as that term was defined under § 2K2.1(b)(1).  Munoz argued that the prosecution could not prove the Polymer80 had traveled in interstate commerce, an element required for violation of 18 U.S.C. § 922(g).

The judge rejected this narrow interpretation of federal law, finding that if Munoz possessed the firearm while a felon, that was sufficient to count for the enhancement’s application.  The federal judge found Munoz possessed the firearm in violation of California Penal Code § 29180(c), which makes it illegal to own a firearm without a serial number.  Section 29180(g) makes the failure to obtain a serial number for a handgun punishable by up to one year in jail and a fine not to exceed $1,000. 

Moreover, Munoz was a felon in possession of a firearm, in violation of California Penal Code § 29800(c). 

Lastly, the Polymer80 qualified as a firearm because it was capable of expelling “a projectile through a barrel by the force of an explosion or other form of combustion” as defined under Penal Code § 16520(a).

The sentencing judge rejected Munoz’s arguments and sentenced Munoz to 108 months in federal prison. 

Mr. Munoz then appealed this ruling to the U.S. Court of Appeals for the Ninth Circuit in San Francisco, which affirmed the district court’s application of the two-level sentencing enhancement for Munoz having three or more guns.

We present this summary, United States of American v. Eligio Munoz, because we receive phone calls quite often about whether a “ghost gun” counts as a firearm and why it is against the law to have such a weapon.  This ruling by the Ninth Circuit addressed these issues and resolves such questions.

For more information about federal felon in possession of a firearm issues, please click on the following articles: