United States v. Bernandino Gawala Bolatete (11th Cir. September 2020)

The Federal Docket

October 26, 2020

Firearm Offenses – The U.S. Constitution gives Congress power to tax firearms, including via an assessment of penalties that aid in payment of transfer fees by discouraging transfer of firearms without payment of the tax regardless if the recipient is not obligated to pay the fee.

Fee Jurisprudence – Fee jurisprudence, where the government may not impose charges for enjoyment of rights granted by the federal constitution, but can collect fees to defray administrative costs associated with the right, has not been applied in the Second Amendment context.

National Firearm Act – Limits on firearm ownership do not violate the Second Amendment if weapons are not “typically possessed by law-abiding citizens for lawful purposes” and there is no precedent whether silencers fall under this definition or “Arms” under the Second Amendment.

Bernandino Gawala Bolatete was convicted and sentenced to 60 months imprisonment for receiving and possessing an unregistered firearm silencer under 26 U.S.C. §5861 and § 5871.  Bolatete was investigated by an undercover detective based on reports that he planned to climb a mosque tower and shoot Muslims until he was killed by police. Bolatete eventually purchased an unregistered silencer from the undercover detective.

The Court first reviewed Bolatete’s constitutional challenges to his conviction and sentence under Congress’ power to tax, holding facial challenges to the National Firearm Act were foreclosed by precedent.  Ross established “destructive devices” were included in the definition of firearms, so a silencer was taxable under the Act.  Spoerke established that transfer penalties which aid in collection of taxes by discouraging firearm transfer without payment of the transfer tax applied regardless that the recipient of the silencer was not obligated to pay the tax.

The Court next reviewed challenges that taxing Second Amendment rights as jurisprudence fees and application of the National Firearm Act to silencers were unconstitutional.  The Court held there was no plain error if neither the Eleventh Circuit nor the Supreme Court ruled on either issue.  While fee jurisprudence has been applied to First Amendment rights, it has not been applied in the Second Amendment context.  Further, the Second Amendment does not protect weapons “not typically possessed by law-abiding citizens” and neither court has held silencers are typically possessed for lawful purposes or defined as “Arms” under the Second Amendment.

The Court affirmed the district court’s conviction and sentence.

The Court also considered questions about entrapment and sentencing.  See full opinion for more details.

 Appeal from the Middle District of Florida

Opinion by Carnes, joined by Luck and Branch.

Click here to read the opinion.


Tom Church - Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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