Case 1:10-cr-00257-LMB Document 32 Filed 11/24/10 Page 1 of 11

IN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF VIRGINIA

Alexandria Division

UNITED STATES OF AMERICA )

) CRIMINAL NO. 1:10CR-257
v. )
) Sentencing Date: December 3, 2010
JUSTIN MICHAEL WILSON )
a/k/a “Itchy” )
) The Honorable Leonie M. Brinkema
Defendant. )

POSITION OF THE UNITED STATES

WITH RESPECT TO SENTENCING

The United States of America, through undersigned counsel, and in accord with 18 U.S.C.

§ 3553(a) and the United States Sentencing Commission Guidelines Manual, files this Position of

the United States with Respect to Sentencing in the instant case. The United States asks the Court

to impose a sentence at the high end of the properly calculated Sentencing Guidelines range of 24

to 30 months. Such a sentence appropriately accounts for a two-level increase pursuant to

2K2.1(b)(4)(A) as well as each of the factors set forth in 18 U.S.C. § 3553(a).

BACKGROUND

At a hearing before this court on September 13, 2010, Defendant JUSTIN MICHAEL

WILSON pled guilty to one count of possession and transfer of a machine gun, in violation of Title

18, United States Code, Sections 922(o) and 924(a)(2).

In July 2008, Defendant was stationed in Norfolk, Virginia as a service member in the United

States Navy. Defendant also served as president of the Virginia Beach Chapter of the Mongols

Motorcycle Gang. Throughout July and August 2008, the Defendant discussed a plan to stage the

theft of his motorcycle with an undercover Bureau of Alcohol Tobacco Firearms and Explosives
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(ATF) agent. The Defendant hoped that this theft would enable him to file a fraudulent claim with

his insurance company for the purportedly stolen motorcycle. The Defendant subsequently sold the

motorcycle to the undercover agent for $1,200 after the agent indicated he would disassemble it and

sell the parts. Defendant then filed a false theft report with the Fairfax County Police Department

claiming that the motorcycle had been stolen. Defendant’s plans failed though when his insurance

company informed him that his policy did not cover loss by theft.

In lieu of returning the $1,200, Defendant offered to provide the agent with an AK-47

machine gun that he had unlawfully obtained and brought into the United States from his military

service in Iraq as well as two ballistic vest panels. The undercover agent agreed to this exchange,

and on August 7, 2008, left the motorcycle in a conspicuous location in Fairfax County, Virginia,

where Fairfax County police officers recovered it and returned it to Defendant. In return, Defendant

met with the undercover agent at a location in the Eastern District of Virginia and delivered the

machine gun and two ballistic vest panels. During this transaction, the Defendant demonstrated the

automatic firing capability of the machine gun to the undercover agent by showing how the weapon

could shoot more than one round, without manual reloading, by pulling the trigger only once.

Defendant stated to the undercover agent that this weapon had been in the possession of an

individual (presumably an insurgent) who Defendant had shot and killed during his service in

Operation Iraqi Freedom. (See Attachment #1). Subsequent firearms testing determined that this

was an AK-47 rifle, 7.62x39 machine gun, that had been manufactured in Izhevsk, Russia and had

once been in the possession of the Iraqi military.

Under the Sentencing Guidelines, Defendant is responsible for the possession and transfer

of a machine gun, with an additional penalty because the machine gun was stolen (Level 20). The

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penalties are a maximum term of imprisonment of 10 years, a maximum fine of $250,000, a special

assessment, and three years of supervised release. Defendant is in Criminal History I and is also

eligible for a three-level reduction pursuant to U.S.S.G. §§ 3E1.1(a) and 3E1.1(b), as he has timely

admitted his guilt. Accordingly, Defendant’s Total Offense Level is 17, for a Guideline range of 24

to 30 months.

ARGUMENT

As this Court is undoubtedly aware, in United States v. Booker, 543 U.S. 220, 264 (2005),

the Supreme Court made clear that sentencing courts should “consult [the Sentencing] Guidelines

and take them into account when sentencing.” See also United States v. Biheiri, 356 F.Supp.2d 589,

593 (2005) (“Justice Breyer’s majority opinion in [Booker] sensibly teaches that the Sentencing

Guidelines must still be taken into account pursuant to 18 U.S.C. § 3553(a) in fashioning an

appropriate sentence.”). The Supreme Court provided this direction to promote the sentencing goals

of Congress, namely to “‘provide certainty and fairness in meeting the purposes of sentencing,

[while] avoiding unwarranted sentencing disparities[.]’” Booker, 543 U.S. at 264 (quoting 28

U.S.C. § 991(b)(1)(B)). The Fourth Circuit has provided the following guidance in the wake of

Booker:

A district court shall first calculate (after making the appropriate findings of fact) the
range prescribed by the guidelines. Then, the court shall consider that range as well
as other relevant factors set forth in the guidelines and those factors set forth in [18
U.S.C.] § 3553(a) before imposing the sentence.

United States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005). Thus, sentencing courts must consider

the factors outlined in 18 U.S.C. § 3553(a), including the need for the sentence “to reflect the

seriousness of the offense, to promote respect for law, and to provide just punishment for the

offense; [and] to afford adequate deterrence to criminal conduct.” 18 U.S.C. § 3553(a)(2)(A) and

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(B); Biheiri, 356 F.Supp.2d at 594.

I. A Two-Level Increase is Appropriate Under 2K2.1(b)(4)(A) as Defendant

Possessed and Transferred a Stolen Machine Gun

As a preliminary matter, Defendant filed an objection to the presentence report calculation,

arguing that a U.S.S.G. § 2K2.1(b)(4)(A) enhancement should not apply as the United States has not

demonstrated “an identifiable owner of the machine gun and the theft from that owner or some other

person in possession of that firearm.” (Def’s Mot., Nov. 18, 2010). Defendant specifically contends

that the United States has failed to identify this third party through “any pleading or discovery.” Id.

The United States disagrees with Defendant’s contention, and responds here.

The Commentary to 2K2.1(b)(4)(A) states that “[s]ubsection (b)(4) applies regardless of

whether the defendant knew or had reason to believe that the firearm was stolen . . . .” See United

States v. Shore, 193 Fed. Appx. 190, 191 (4th Cir. 2006) (unpublished) (“U.S.S.G. § 2K2.1(b)(4)

. . . applies even if [defendant] was unaware the firearm he pled guilty to possessing was stolen”);

United States v. Hendrick, 340 F.3d 196, 199 (4th Cir. 2003) (stating in dicta that “[§ 2K2.1(b)(4)]

would apply to a defendant who unlawfully possessed a firearm without knowledge that the firearm

was stolen). A two-level increase is therefore warranted if this Court finds that the firearm was in

fact stolen, irrespective of Defendant’s personal knowledge. As Defendant indicates in his Motion,

the agreed upon Statement of Facts to the Plea Agreement states that the machine gun “was once in

the possession of the Iraqi Military.” (Def’s Mot.; Statement of Facts at ¶ 5). The fact that

Defendant was not aware that this weapon had come from the Iraqi military is irrelevant for §

2K2.1(b)(4)(A) purposes.

Even if Defendant argues that it is possible that the weapon was not actually “stolen” from

the Iraqi military, his argument fails. The PSR correctly states that Defendant “unlawfully obtained

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[the machine gun] and brought into the United States from his military service in Iraq.” (PSR at

p.11). Pursuant to FED. R. CRIM. P. 16(a), the United States had previously provided to Defendant

an audio tape recording of an August 7, 2008 conversation between the undercover federal agent and

Defendant that transpired during the exchange of the machine gun, a portion of which is transcribed

in Attachment #1.1 During that transaction, Defendant stated to the undercover agent, “I told you

that the butt stock is off because I (inaudible) killed the dude was shot through the fucking butt

stock.” (See Attachment #1). There is therefore ample evidence for this Court to conclude that

Defendant shot an insurgent or other individual during his service in Iraq, and subsequently took the

weapon home to Virginia.

Any arguments from Defendant that the machine gun was not “stolen” because it was taken

from an insurgent during combat operations are flatly wrong. While Defendant certainly had a duty

to retrieve the fallen insurgent’s machine gun, he also had a duty under the Uniformed Code of

Military Justice (UCMJ) and applicable military regulations to return the weapon to his superiors.

See Art. 103(a), UCMJ, 10 U.S.C. § 903(a) (“all persons subject to this chapter shall . . . give

notice and turn over to the proper authority without delay all captured or abandoned property in their

possession, custody, or control); Art. 103(b), UCMJ, 10 U.S.C. § 903(b) (prohibiting service

members from engaging in “looting or pillaging”); OPNAVINST 3460.7A (“[T]he following

categories of weapons . . . are not authorized to be retained as war trophy firearms under this

regulation: . . . (f) machinegun . . .”); see also United States v. Mello, 36 M.J. 1067, 1067-68 (1993)

(holding that defendant had engaged in looting, as codified in Art. 103, when he retrieved, and hid,

an AK-47 assault rifle from a burnt-out Iraqi bunker). The United States believes that because

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Several audio recordings of exchanges between the undercover agent, Defendant, and others, were made available
to Defendant prior to his guilty plea.

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Defendant’s conduct was governed by military law during his service in Iraq, the UCMJ,

corresponding regulations, and case law can aid this Court in its determination of whether this

weapon is appropriately deemed stolen. In the instant case, Defendant had a legal obligation to turn

this weapon over to the proper military authorities. When he failed to do so, he had in effect stolen

the weapon from the U.S. military.

Based upon the facts present in the agreed upon Statement of Facts as well as Defendant’s

admissions to the undercover agent, this Court has more than sufficient evidence to determine that

the machine gun was stolen from either (1) the Iraqi military, (2) the insurgent who was previously

in possession of the weapon, or (3) the U.S. military. A two-level increase pursuant to §

2K2.1(b)(4)(A) is therefore appropriate.

As to the Defendant’s brief objection to the description of the insurance scheme, the United

States believes that the PSR correctly stated that Defendant, of his own volition, requested that the

undercover agent assist him in selling the motorcycle. In any event, the United States does not

believe this specific issue is particularly relevant to the current case as Defendant is charged with

the possession and transfer of a machine gun, and not insurance fraud.

II. A Sentence of 30 Months Complies with the Factors and Considerations Set
Forth in 18 U.S.C. § 3553(a).

The United States asks the Court to adopt the PSR’s Guidelines calculation, and the United

States addresses only the § 3553(a) factors here. As explained below, based on those factors,

notably the seriousness of the offense, the need to promote respect for the law, and the need for

general deterrence, a sentence of 30 months of imprisonment is warranted, appropriate, and

reasonable.

Seriousness of the offense: Defendant unlawfully transferred a machine gun from a war zone

into a suburban Virginian community. While possessing and transferring a machine gun is by its
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very nature dangerous, the circumstances surrounding this case suggest that Defendant’s actions are

particularly concerning. Defendant secretly maintained control of an enemy machine gun, contrary

to controlling military law and regulations, and smuggled it back to Virginia. While some

individuals may claim that they simply hoped to retain a “war trophy weapon” for personal reasons,

Defendant’s subsequent actions were much more sinister. Defendant not only sold this weapon, but

also two stolen ballistic vest panels to an undercover federal agent who Defendant had reason to

believe planned to commit horrific acts of violence. The Court should not overlook the fact that at

the time of the offense Defendant held a leadership position within the Mongols Motorcycle Gang.

(See PSR at ¶ 38). His affiliation with a dangerous gang further demonstrates his likely belief that

this weapon would be used for illegal, and potentially deadly, purposes.

To this latter point, Defendant suggests to the probation officer that he planned to regain

control of the machine gun during some purported, later transaction. (See PSR at ¶ 28). However,

this runs contrary to his statements to the undercover agent that “right now there’s no magazine, but

if I come across it I’ll fucking give it to you.” (See Attachment #1). It seems highly unlikely that

an individual who planned to retrieve the weapon would at the same time pledge to find ammunition

for the buyer. Even if the Court were to believe Defendant’s self-serving statement to the probation

officer, Defendant knew he would have no control over the weapon once the buyer obtained it and

he almost certainly believed that the buyer planned to use the machine gun and vest panels to

commit acts of violence. This is especially true in light of the agent’s statement to the Defendant

weeks beforehand that he wanted “to go by and spray the clubhouse with it,”(see Attachment #22),

as well as Defendant stating “cool, yeah” when the undercover agent told him “like I said, I’m going

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Pursuant to FED. R. CRIM. P. 16(a), the United States had previously provided to Defendant an audio tape recording
of this July 13, 2008 conversation, a portion of which is transcribed in Attachment #2.

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to keep that thing buried - - and when it needs to be brought out it will be brought out.” (See

Attachment #1). Defendant’s willingness to supply a seemingly violent confederate with a machine

gun demonstrates a complete disregard for public safety. A lengthy period of incarceration will

protect the surrounding community from Defendant.

Need to Promote Respect for the Law: The United States does not dispute that Defendant

served his country for years in the United States Navy, including service in Operation Iraqi Freedom.

However, this service does not excuse his illegal and highly dangerous actions. During this period

of service, Defendant violated military law and then sought profit from a machine gun he had stolen

from the battlefield. Moreover, years of service in the military have apparently failed to instill in

Defendant the necessity of abiding by the law. A period of incarceration within the guidelines range

is necessary and appropriate to demonstrate to Defendant the consequences of engaging in this type

of behavior.

Need for General Deterrence: A lengthy period of incarceration will also send an important

message that individuals who seek to sell war trophy weapons in the United States will be punished.

The vast majority of military service members and civilians serving in Iraq and Afghanistan do so

at tremendous risk to safety and with great personal sacrifice. Unfortunately, a limited number of

individuals smuggle unlawfully obtained dangerous weapons into the United States. The very nature

of this smuggling is highly dangerous, as weapons are sent home unsecured with little to no

precautionary measures.

Furthermore, military and civilian officials have exerted great effort to show the international

community that the United States strives to uphold international law when carrying out operations.

Defendant’s actions not only hinder this objective, they help proliferate false images of Americans

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as marauding conquerors. A period of incarceration within the guidelines will send a critical

message that turning a profit by selling “war trophy weapons” will not be tolerated.

Lastly, the United States believes as a general matter that it is important to deter those

individuals who possess and seek to sell dangerous weapons. Irrespective of how Defendant

obtained this weapon, its very presence in Virginia is a matter of grave concern. These weapons

have a devastating impact on local communities, especially when they are sold alongside combat

gear such as the ballistic vest panels. A period of incarceration at the high end of the Guidelines will

help deter those individuals who attempt to introduce dangerous weapons into their communities.

CONCLUSION

Therefore, for the above-stated reasons, the United States submits that a sentence at the high

end of the Guidelines is reasonable and accounts for each of the factors set forth in 18 U.S.C.

§ 3553(a).

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Respectfully submitted,

Neil MacBride
United States Attorney

/s/
Thomas J. Krepp
Special Assistant United States Attorney
Attorney for the United States of America
United States Attorney’s Office
Justin W. Williams U.S. Attorney's Building
2100 Jamieson Avenue
Alexandria, Virginia 22314
Phone: 703-299-3921
Fax: 703-299-3981
Email Address: Thomas.Krepp@usdoj.gov
 Case 1:10-cr-00257-LMB Document 32 Filed 11/24/10 Page 11 of 11

CERTIFICATE OF SERVICE

I hereby certify that on the 24th day of November, 2010, I electronically filed the
foregoing with the Clerk of Court using the CM/ECF system, which will send a notification of
such filing (NEF) to the following:

Michael S. Arif
Martin & Arif
8001 Braddock Rd
Suite 100
Springfield, VA 22151
Phone: (703) 323-1200
Email: msa323@aol.com

I also hereby certify that on November 24, 2010, I will send a true and correct copy of the
foregoing via email to:

Carla Coopwood
U.S. Probation Officer
Manassas, Virginia 20109
(703) 366-2150 (fax)

/s/
Thomas J. Krepp
Special Assistant U.S. Attorney
United States Attorney's Office
Eastern District of Virginia
2100 Jamieson Avenue
Alexandria, Virginia 22314-5794
Direct: 703-299-3921
Fax: 703-299-3980
Email: thomas.krepp@usdoj.gov

.........................

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