Cite as Hunter v. U.S., 73 F.3d 260 (9th Cir. 1996)

WILLIAM LEE HUNTER, aka WILLIAM LEIGH HUNTER, Petitioner-Appellant,

                               v.

         UNITED STATES OF AMERICA, Respondent-Appellee.

                          No. 93-56374

      United States Court of Appeals for the Ninth Circuit

                    D.C. No. CV-93-00587-AHS

                    Argued September 11, 1995

        Submitted September 18, 1995 Pasadena, California

                     Filed January 12, 1996

     Appeal from the United States District Court for the Central
District of California Alicemarie H. Stotler, District Judge,
Presiding.

     David E. Durchfort, Kosnett & Durchfort, Los Angeles,
California, for the petitioner-appellant.

     Wayne R. Gross, Assistant United States Attorney, Santa Ana,
California, for the respondent-appellee.

     Before: James R. Browning and Harry Pregerson, Circuit Judges,
and Jack E. Tanner,* District Judge.

     PER CURIAM:

     The National Firearms Act makes it unlawful for private
citizens to possess unregistered firearms, and mandates denial of
any application for registration of a firearm the possession of
which is illegal. 26 U.S.C. sections 5812, 5822. The Firearm
Owners' Protection Act makes it illegal for any person to possess
a machine gun that was not lawfully possessed before the statute's
effective date of May 19, 1986, 18 U.S.C. section 922(o), and thus
makes it impossible to comply with the National Firearms Act's
registration requirement with respect to machine guns not lawfully
possessed before May 19, 1986.

     William Hunter pled guilty to possession of an unregistered
machine gun in violation of 26 U.S.C. section 5861(d). He
subsequently filed a section 2255 motion to vacate his sentence on
the ground that the statute under which he was convicted, read in
the light of section 922(o), was unconstitutional. The district
court denied the motion, and we affirm.

                               I.

     Relying on United States v. Dalton, 960 F.2d 121 (10th Cir.
1992), Hunter contends that criminalizing possession of an
unregistered machine gun is fundamentally unfair because the
statute prevents him from complying with the registration
requirement, and that this unfairness renders his conviction
unconstitutional. We disagree.

     Although this circuit in dictum has "note[d] with favor the
analysis in Dalton," U.S. v. Kurt, 988 F.2d 73, 75 (9th Cir. 1993),
three circuits have expressly rejected the Dalton holding. In U.S.
v. Jones, 976 F.2d 176 (4th Cir. 1992), the Fourth Circuit reasoned
that the registration requirement is not unfair, even as to machine
guns made illegal under section 922(o), because individuals "can
comply with both acts by refusing to deal in newly-made machine
guns," 976 F.2d at 183. Although the passage of section 922(o)
effectively rendered the possession of a machine gun a violation of
both section 5861(d) and section 922(o), the Constitution does not
forbid making the same conduct illegal under two statutes, and the
government is permitted to prosecute under either one. See id.;
United States v. Ross, 9 F.3d 1182, 1194 (7th Cir. 1993); see also
United States v. Ardoin, 19 F.3d 177, 180 (5th Cir. 1994).

     In U.S. v. Gann, 732 F.2d 714 (9th Cir. 1984), we rejected an
argument identical to that advanced by Hunter. Gann was convicted
both of possession of a firearm by a felon and possession of an
unregistered firearm. Id. at 721. Just as Hunter asserts it was
unfair to charge him with possession of an unregistered machine gun
since he could not register it, Gann argued that "since a felon
cannot register a firearm, it is unfair to charge him with a
separate crime for failing to do so." Id. We rejected that
argument. Id.

     Following Gann and Jones, we hold it was not unfair to convict
Hunter of violating 26 U.S.C. section 5861(d).

                               II.

     Hunter also argues we should follow Dalton's holding that
section 5861(d) is no longer within Congress's power to tax. As
with the fundamental fairness argument, three circuits have
rejected Dalton's reasoning, and we agree. We adopt the rationale
of Jones, that requiring those who possess machine guns to register
them is in aid of the taxing power even if the government no longer
taxes possession. The manufacture of machine guns continues to be
taxed, and knowing the chain of possession of a firearm would help
the government determine who made it; thus, requiring registration
for possession still facilitates taxation. See Jones, 976 F.2d at
183-84; Ardoin, 19 F.3d at 180.

     AFFIRMED.

                            FOOTNOTE

* The Honorable Jack E. Tanner, Senior Judge, United States
District Court for the Western District of Washington, sitting by
designation.