Full opinion text
MEMORANDUM & ORDER JACK B. WEINSTEIN, Senior District Judge. Table of Contents I. Introduction...............................................................439 II. Facts.....................................................................440 A. Crime................................................................440 B. Presentence Report Guideline Calculations................................441 C. Sentencing Hearings...................................................441 III. Sentencing Guidelines......................................................443 A. Pr e-Booker...........................................................443 B. Post>-Booker..........................................................447 C. Correct Calculation of the Guidelines Required............................451 IV. Enhancement for Stolen Gun................................................452 A. Guideline.............................................................452 B. Appellate Review......................................................453 1. Court of Appeals for the Second Circuit...............................453 2. Court of Appeals for the Third Circuit................................454 3. Court of Appeals for the Ninth Circuit................................458 4. Courts of Appeals for the Fourth, Fifth, Sixth, Eighth, Tenth, Eleventh, and District of Columbia Circuits..........................460 C. Reconsideration Under the Sixth Amendment Line of Cases ................461 1. Developing Sixth Amendment Defendants Protections in Sentencing.....461 2. Loss of Force in Enhancement Precedents............................464 D. Invalidity.............................................................464 1. General Problems in Reviewing the Sentencing Commissions Determinations..................................................464 a. Administrative Law Framework.................................464 b. Review of Commentary.........................................466 c. Departure from the Guidelines...................................470 2. Commentary to U.S.S.G. 2K2.1(b)(4) Violating Enabling Statute..........470 a. Standard of Review............................................470 b. Enhancement Violates Requirement of Knowledge that Firearm was Stolen..................................................474 i. Statute Requiring Mens Rea................................474 ii. Historical Importance and Constitutional Requirement of Mens Rea...............................................475 in. Analysis..................................................478 V. Conclusion................................................................480 I. Introduction The powers of a democratic constitutional government such as ours to punish people must be exercised rationally. Arbitrary and capricious punishment is not acceptable. See generally Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). The requirement of mens rea is a central organizing principle and requirement of our criminal law. The United States Sentencing Commission is bound by these fundamental rules. The problem now posed is: whether the Commentary to the United States Sentencing Guidelines — designed to be followed by sentencing courts — may provide for enhanced punishment of a felon in possession of a stolen handgun if the criminal does not know that it was stolen? The answer is: such a rule, devoid of any mens rea connection, is irrational, is inconsistent with the Constitution and criminal laws of the United States, and is void. To add many months of incarceration for possession of a gun because the gun was stolen, when the defendant did not and could not know it was stolen, is to punish by lottery. Haphazard chance is not a guiding spirit of our rule of law. Nor is the present method of adopting, reviewing and applying Commentaries such as the one now in question satisfactory as a matter of administrative law. See infra section IV.D.l.b.; of. 28 U.S.C. §§ 2071-2077 (methods of adoption for rules of courts with public and congressional participation). This court’s present ruling is contrary to courts of appeals decisions in this and other circuits. Nevertheless, in sentencing the Supreme Court has recognized the primacy of the district court’s responsibility. Nisi prius power includes the obligation to declare invalid a Guideline or Sentencing Commission Commentary interpreting the Guideline if it is void for unconstitutionality or if it exceeds the Commission’s power to adopt it. The federal statute defendant here pled guilty to criminalizes possession of firearms by convicted felons. See 18 U.S.C. § 922(g)(1). The Sentencing Commission mandates a two-level enhancement to the offense level of a defendant charged with this offense if the firearm was stolen. See U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 2K2.1(b)(4). Pursuant to the Guideline Commentary, defendant’s lack of knowledge that the firearm was stolen is irrelevant; strict liability applies. See U.S.S.G. § 2K2.1 cmt. n.8(B). Sentencing judges must give the same weight to this Commentary as they give to the Guidelines themselves. See United States v. LaBonte, 520 U.S. 751, 117 S.Ct. 1673, 137 L.Ed.2d 1001 (1997); U.S.S.G. § 1B1.7. The fact that the Guidelines no longer mandatorily control the sentence has not eliminated them as a critical factor that must be considered in fashioning a sentence. See 18 U.S.C. § 3553(a)(4)(A); United States v. Sanchez, 517 F.3d 651, 661 (2d Cir.2008). If a Commentary is invalid it must be stricken in the same way as would be an invalid Guideline. LaBonte, 520 U.S. at 753, 117 S.Ct. 1673. In the present case the enhancement Commentary for a stolen gun, not known to have been stolen by defendant, would change the Guidelines range applicable to this defendant from 37 to 46 months to 46 to 57 months. That enhancement represents a 24.3% increase in the bottom and a 23.9% increase in the top end of the applicable Guideline range. Imposition of such an enhancement predicated upon an irrational finding by the Commission would be illegal. The arbitrary and capricious nature of the Commission’s exclusion of mens rea from its two-level enhancement is particularly egregious since it violates congressional policy. In contrast to the Commission’s rule, an analogous federal statute criminalizes possession of a stolen firearm only if the person knows or has reasonable cause to believe that the firearm was stolen. See 18 U.S.C. § 922(j). The two-level Guidelines enhancement obviously cannot apply to a conviction under this statute. See U.S.S.G. § 2K2.1 cmt. n. 8(A). It applies to this defendant under the Guidelines because, anomalously, he was convicted under another section dealing with possession of a firearm — 18 U.S.C. § 922(g)(1) — that contains no element relating to the thievery of the weapon. Deemed irrelevant under the Commentary is the fact that this defendant did not know and had no reasonable cause to believe that the firearm he possessed was stolen. The same due process requirement for legislative enactments that conduct without culpable mens rea cannot be criminalized except for minor strict liability crimes, is applicable to the work of the Sentencing Commission. Consistent with fundamental legal tradition that blameworthiness hinges upon a culpable state of mind, the defendant’s Guideline calculation must be predicated upon culpability. See, e.g., United States v. Polizzi, 549 F.Supp.2d 308, 349-53 (E.D.N.Y.2008) (citing authorities on mens rea); United States v. Cordoba-Hincapie, 825 F.Supp. 485, 489-527 (E.D.N.Y.1993) (same). Thus, the Commentary to section 2K2.1(b)(4) of the Sentencing Guidelines is invalid. II. Facts A. Crime On November 30, 2007 when Ramel Handy was twenty years old, having spent the better part of his adolescence in prison, he was observed by two uniformed police officers. See Presentence Report dated Apr. 7, 2008 (“PSR”) ¶2. He and another individual were standing on a pedestrian pathway at a public housing complex in the Brownsville section of Brooklyn. Id. Handy adjusted an object concealed in the rear waistband of his pants. Id. He was approached by the officers and asked for identification. Id. Responding that he had none, he was told that he would be subjected to a “pat-down” search for weapons. Id. He ran from the officers through the housing complex, tossing a loaded pistol onto a grassy area on the sidewalk as he went. Id. He was captured immediately and placed under arrest. Id. ¶¶ 2-3. In post-arrest statements he admitted that he “took” the gun from an acquaintance earlier in the day. Id. Agents from the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) determined that the firearm, a Hi-Point nine-millimeter semi-automatic pistol, was manufactured outside of New York State and had been reported stolen in Fulton County, Georgia in 2006. Id. ¶ 1 (type of firearm); id. ¶ 4 (place of manufacture); id. ¶ 5 (reported stolen in Georgia). On February 14, 2008, Handy pled guilty to a single-count indictment charging him with possession of a firearm after having previously been convicted of a felony. See 18 U.S.C. §§ 922(g)(1) and 924(a)(2). As already noted, this statute does not incorporate the element of the firearm having been stolen. B. Presentence Report Guideline Calculations The probation department calculated the base offense level at twenty. PSR ¶ 9; see also U.S.S.G. § 2K2.1(a)(4)(A) (calculating the base offense level for unlawful possession of a firearm at 20 if “the defendant committed ... offense subsequent to sustaining one felony conviction of ... a crime of violence ... ”). Over the defendant’s objection, a two-level enhancement was applied because the firearm had been stolen. PSR ¶ 9; Addendum to PSR dated Apr. 25, 2008; see also U.S.S.G. § 2K2.1(b)(4) (“If any firearm (A) was stolen, increase by 2 levels ...”); id. § 2K2.1 cmt. n. 8(B) (the two-level enhancement “applies regardless of whether the defendant knew or had reason to believe that the firearm was stolen.... ”). C. Sentencing Hearings At the sentencing hearing defendant objected to the two-level enhancement under U.S.S.G. § 2K2.1(b)(4) on the ground that he did not know and had no reason to know that the gun was stolen: [I] believe that with the recent revolution in sentencing and the [Sjupreme [CJourt cases, including the recent case about crack cocaine, that it’s clear that this court can make its own decision about whether to apply an enhancement that perhaps was ill-considered by the Guidelines. My argument is that an enhancement for a circumstance which Mr. Handy had no knowledge about and the government — I think Probation concedes that they have no information that he knew this gun was stolen, and we clearly don’t think he went to Georgia and stole it— that that was an ill-considered enhancement by the [Sentencing] Commission. It is a crime to possess a stolen firearm but that crime requires knowledge. The [Sentencing] Commission, for whatever reason, they decided not to follow Congresses] view when they wrote a statute that said possessing a stolen firearm is a crime only if you knew or had reason to know it was stolen. Also, I think the [Sentencing] Commission has ignored hundreds of years of common law, which clearly indicated] that knowledge and intent are ... the touchstones of criminal liability. Transcript of April 30, 2008 Sentencing Hearing (“Tr. Sent. Apr. 30”) at 6-7. Defendant offered as a second ground for objecting to the enhancement, fairness, based on the fact that enhancement for a stolen gun had not entered into guilty plea considerations: [F]undamental fairness requires that the two level enhancement for a stolen firearm should not be applied to this case. The government entered into a plea agreement with Mr. Handy, in which they anticipated no stolen firearm enhancement. This [e]ourt is required to construe plea agreements strictly against the government and to scrutinize the government’s conduct to ensure that it comports with the highest standard of fairness. In this case, fairness requires that an enhancement unanticipated in the plea agreement cannot be applied, especially when the facts allegedly supporting the enhancement were known to the government when the plea agreement was executed. Letter dated Apr. 22, 2008 at 3. Sentencing was adjourned and briefing on the stolen gun enhancement issue was directed by the court. Tr. Sent. Apr. 30 at 9. By letter-brief dated May 23, 2008, the government argued that the two-level enhancement does not violate the.due process clause. See Government’s Letter dated May 23, 2008. At the May 27, 2008 sentencing hearing, Handy conceded that the firearm had been stolen, but objected to the two-level enhancement because he did not know it was stolen: The Court: So you are conceding it was a stolen gun? [Defense Counsel]: That’s correct.... The Court: Now, to his knowledge that it was stolen, are you conceding that he knew it was stolen? [Defense Counsel]: Absolutely not. Transcript of May 27, 2008 Sentencing Hearing at 10-11. After opportunity was given to the parties to provide evidence of whether Handy knew that the firearm was stolen, the court found — and the government conceded — that the defendant did not know that the firearm was stolen when he initially obtained it or while it was in his possession: The Court: Do you want to put on any evidence of the fact that he didn’t know that it was stolen? [Defense Counsel]: I will ask Mr. Handy. The Court: He’s under oath.... [Defense Counsel]: Mr. Handy, when you came in possession of this gun, how long before you were arrested did you receive the gun? The Defendant: Couple of hours. [Defense Counsel]: ... And when you had the gun in your possession, did you know it had been stolen previously? The Defendant: No. [Defense Counsel]: And had you stolen it from anyone previously? The Defendant: No. The Court: [Government, do y]ou want to inquire? [Government]: No. The Court: ... I find as a matter of fact that [the] gun was stolen. That it then moved in interstate commerce. That it was obtained by the defendant, but that he did not know it was stolen when he obtained it, or while it was in his possession. Correct? [Government]: Yes. [Defense Counsel]: Yes. The Court: I find all of that by a preponderance of the evidence. Id. at 11-12. III. Sentencing Guidelines A. Pre-Booker In 1984, Congress passed the Sentencing Reform Act and created the United States Sentencing Commission to help deal with uncertainties and disparities in the federal criminal justice system. See Sentencing Reform Act of 1984, Pub.L. No. 98-^473, 98 Stat. 1987 (1984) (codified as amended at 18 U.S.C. §§ 3551-3742, 28 U.S.C. §§ 991-98); see also, e.g., S.Rep. No. 98-225, at 49, U.S.Code Cong, and Admin .News 1984, pp. 3182, 3232 (“[T]he present practices of the federal courts and of the parole commission clearly indicate that sentencing in the federal courts is characterized by unwarranted disparity and by uncertainty about the length of time offenders will service in prison.”); Kenneth R. Feinberg, Federal Criminal Sentencing Reform: Congress and the United States Sentencing Commission, 28 Wake Forest L.Rev. 291, 295 (1993) (“The first and foremost goal of the sentencing reform effort was to alleviate the perceived problem of federal criminal sentencing disparity.”); Marvin E. Frankel & Leonard Orland, Sentencing Commissions and Guidelines, 73 Geo. L.J. 225, 247 (1984). Section 991 of title 28 of the United States Code established the Sentencing Commission and set forth its purpose “as an independent commission in the judicial branch of the United States.” 28 U.S.C. § 991(a). The Commission was charged with the following purposes: (1) establish sentencing policies and practices for the Federal criminal justice system that— (A)assure the meeting of the purposes of sentencing as set forth in section 3553(a)(2) of title 18, United States Code; (B) provide certainty and fairness in meeting the purposes of sentencing, avoiding unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar criminal conduct while maintaining sufficient flexibility to permit individualized sentences when warranted by mitigating or aggravating factors not taken into account in the establishment of general sentencing practices; and (C) reflect, to the extent practicable, advancement in knowledge of human behavior as it relates to the criminal justice process; and (2) develop means of measuring the degree to which the sentencing, penal, and correctional practices are effective in meeting the purposes of sentencing as set forth in section 3553(a)(2) of title 18, United States Code. 28 U.S.C. § 991(b). The four main goals of the Commission were: “to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense”; “to afford adequate deterrence to criminal conduct”; “to protect the public from further crimes of the defendant”; and “to provide the defendant with needed ... correctional treatment.” 18 U.S.C. § 3553(a)(2). Section 994 of title 18 sets out the specific duties of the Commission and directs it to formulate Sentencing Guidelines and general Policy Statements “consistent with all pertinent provisions of any Federal statute.” 28 U.S.C. § 994(a) (emphasis added); see also infra section IV.D.2.b.i. The Commission is obligated to “review and revise” Sentencing Guidelines periodically, 28 U.S.C. § 994(o), to “consult with authorities on ... various aspects of the Federal criminal justice system,” id., to make recommendations to Congress on whether the grades or maximum penalties should be modified, id. § 994(r), to submit to Congress an analysis of the operation of the Guidelines, id. § 994(w), and to issue “general policy statements” regarding their application, id. § 994(a)(2). Parallel with the Commission’s duties to consider “the need for the sentence imposed” to achieve the general purposes of sentencing under 18 U.S.C. § 3553(a)(2), see 28 U.S.C. § 991(b)(1)(A), sentencing courts were mandated to consider seven factors when imposing a sentence. 18 U.S.C. § 3553(a). First, is a broad command to consider the “nature and circumstances of the offense and the history and characteristics of the defendant.” 18 U.S.C. § 3553(a)(1). Second, is “the need for the sentence imposed.” 18 U.S.C. § 3553(a)(2). Third pertains to “the kinds of sentences available.” 18 U.S.C. § 3553(a)(3). Fourth, is the requirement to utilize the Sentencing Guidelines. 18 U.S.C. § 3553(a)(4). Fifth, is the injunction to follow the relevant Policy Statements issued by the Sentencing Commission. 18 U.S.C. § 3553(a)(5). Sixth is to the “need to avoid unwarranted sentence disparities.” 18 U.S.C. § 3553(a)(6). Seventh is “the need to provide restitution to any victim.” 18 U.S.C. § 3553(a)(7). Preceding this list is a general directive to the sentencing court to “impose a sentence sufficient, but not greater than necessary to comply with the purposes” of sentencing. 18 U.S.C. § 3553(a). Section 3553(a) of title 18 is the courts’ basic guide. It reads: (a) Factors to be considered in imposing a sentence. — The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. The court, in determining the particular sentence to be imposed, shall consider— (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed— (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner; (3) the kinds of sentences available; (4) the kinds of sentence and the sentencing range established for— (A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines— (i) issued by the Sentencing Commission pursuant to section 994(a)(1) of title 28, United States Code, subject to any amendments made to such guidelines by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28); ... (5) any pertinent policy statement [issued by the Sentencing Commission] (6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and (7) the need to provide restitution to any victims of the offense. 18 U.S.C. § 3558(a) (emphasis added). In devising the Guidelines, the Commission sought to meet the practical problems in developing a coherent sentencing system, partly by ignoring sentencing theory, policy and the history of sentencing in the United States. See U.S.S.G. § 1A1.1 (“The Basic Approach”). Cf. Christopher Wimmer et al., Sentencing in the United States, in Re-entry Planning for Offenders with Mental Disorders: Policy and Practice (Henry A. Dlugacz, ed., forthcoming 2009). The Commission took “an empirical approach that used as its starting point data estimating pre-guidelines sentencing practice.” See U.S.S.G. § 1A1.1. It explained that this: [E]mpirical approach ... helped resolve its philosophical dilemma. Those who adhere to a just deserts philosophy may concede that the lack of consensus might make it difficult to say exactly what punishment is deserved for a particular crime. Likewise, those who subscribe to a philosophy of crime control may acknowledge that the lack of sufficient data might make it difficult to determine exactly the punishment that will best prevent that crime. Both groups might therefore recognize the wisdom of looking to those distinctions that judges and legislators have, in fact, made over the course of time. These established distinctions are ones that the community believes, or has found over time, to be important from either a just deserts or crime control perspective. Id. In calculating a Guidelines sentence, a sentencing judge would find it difficult to take account of all the section 3553(a)(2) factors. See generally Kevin Cole, The Em/pty Idea of Sentencing Disparity, 91 Nw. U.L.Rev. 1336, 1336-37 (1997). The Sentencing Commission failed to develop a method by which all section 3553(a)(2) factors should be combined in application. A philosophical problem arose when the Commission attempted to reconcile the differing perceptions of the purposes of criminal punishment. Most observers of the criminal law agree that the ultimate aim of the law itself, and of punishment in particular, is the control of crime. Beyond this point, however, the consensus seems to break down. Some argue that appropriate punishment should be defined primarily on the basis of the moral principle of ‘just deserts.’ ... Others argue that punishment should be imposed primarily on the basis of practical ‘crime control’ considerations .... Adherents of these points of view have urged the Commission to choose between them, to accord one primacy over the other. Such a choice would be profoundly difficult. The relevant literature is vast, the arguments deep, and each point of view has much to be said in its favor. A clear-cut Commission decision in favor of one of these approaches would diminish the chance that the guidelines would find the widespread acceptance they need for effective implementation. U.S.S.G. § 1A1.1, pt. A(3) (“The Basic Approach”); see also United States v. Blake, 89 F.Supp.2d 328, 340-46 (E.D.N.Y. 2000) (discussing the rehabilitative model); United States v. Blarek, 7 F.Supp.2d 192, 198-204 (E.D.N.Y.1998) (discussing section 3553(a) and traditional sentencing rationales). The Commission avoided the “philosophical problem” by “taking an empirical approach” and using averages of prior sentencing decisions to derive Guideline ranges for most offenses: Despite these policy-oriented departures from present practice, the guidelines represent an approach that begins with, and builds upon, empirical data. The guidelines will not please those who wish the Commission to adopt a single philosophical theory and then work deductively to establish a simple and perfect set of categorizations and distinctions .... After spending considerable time and resources exploring alternative approaches, the Commission has developed these guidelines as a practical effort toward the achievement of a more honest, uniform, equitable, and therefore effective, sentencing system. U.S.S.G. § 1A1.1, pt. A(3); see also Marvin E. Frankel, Sentencing Guidelines: A Need for a Creative Collaboration, 101 Yale L.J.2043, 2047 (1992) (“The Commissioners took up the direction to look at prior average sentences ‘as a starting point,’ but not to be bound by them. That meant starting with a tradition of criminal sanctions that ranks next to the American states as the harshest in the Western world. Then, instead of mitigating, as I think a rational and courageous stance should have dictated under the power to formulate guidelines ‘consistent with the purposes of sentencing described in section 3553(a)(2) of title 18,’ the Commission produced guidelines that actually increase the overall severity ... ”) (footnotes omitted). A departure from the Guidelines was permitted only if the sentencing court “finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.” 18 U.S.C. § 3553(b); Koon v. United States, 518 U.S. 81, 92-96, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996) (recognizing the importance of district court discretion to identify those cases that did not fall within the “heartland” of the Guidelines); United States v. Merritt, 988 F.2d 1298, 1311 (2d Cir.1993) (“consideration of a factor by the Commission does not bar departure”); see also, e.g., United States v. Hawkins, 380 F.Supp.2d 143 (E.D.N.Y. 2005) (granting downward departure on basis of extraordinary rehabilitation); United States v. Patterson, 281 F.Supp.2d 626 (E.D.N.Y.2003) (aberrant behavior); United States v. Liu, 267 F.Supp.2d 371 (E.D.N.Y.2003) (significantly reduced mental capacity); United States v. Blake, 89 F.Supp.2d 328 (E.D.N.Y.2000) (significantly reduced mental capacity, aberrant behavior, anticipated trauma to defendant’s infant child if separated from mother, and rehabilitation); United States v. Blarek, 7 F.Supp.2d 192 (E.D.N.Y.1998) (vulnerability in prison and HTV-positive status); United States v. Malpeso, 943 F.Supp. 254 (E.D.N.Y.1996) (family circumstances); United States v. Ferranti, 928 F.Supp. 206 (E.D.N.Y.1996) (departing upward to increase fine, imposing costs of imprisonment, and ordering restitution in prosecution of wealthy landlord who burned an occupied building to collect on insurance policy, resulting in death of a firefighter); United States v. Tropiano, 898 F.Supp. 90 (E.D.N.Y.1995) (departing upwards where benign nature of convicted offense belied actual extent of criminal enterprise and Guidelines under-represented true criminal history); Note, A Trial Judge’s Reflections on Departures from the Federal Sentencing Guidelines, 5 Fed. Sent. Rep. 6 (1992). Congressional delegation of authority to the Commission survived delegation of power and separation of powers challenges. See Mistretta v. United States, 488 U.S. 361, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989). The Supreme Court held that congressional delegation of authority to the Commission was proper because the Sentencing Reform Act of 1984 provided “intelligible principiéis] ” required to delegate exactly “the sort of intricate, labor-intensive task for which delegation to an expert body is especially appropriate.” Id. at 379, 109 S.Ct. 647 (emphasis added). In light of our approval of ... broad delegations, we harbor no doubt that Congress’ delegation of authority to the Sentencing Commission is sufficiently specific and detailed to meet constitutional requirements. Congress charged the Commission with three goals: to “assure the meeting of the purposes of sentencing as set forth” in the Act; to “provide certainty and fairness in meeting the purposes of sentencing, avoiding unwarranted sentencing disparities among defendants with similar records [ ] while maintaining sufficient flexibility to permit individualized sentences,” where appropriate; and to “reflect, to the extent practicable, advancement in knowledge of human behavior as it relates to the criminal justice process.” 28 U.S.C. § 991(b)(1). Congress further specified four “purposes” of sentencing that the Commission must pursue in carrying out its mandate: “to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense”; “to afford adequate deterrence to criminal conduct”; “to protect the public from further crimes of the defendant”; and “to provide the defendant with needed [] correctional treatment.” 18 U.S.C. § 3553(a)(2). Id. at 374, 109 S.Ct. 647 (emphasis added). In rejecting a separation of powers challenge, the Court noted: Although the unique composition and responsibilities of the Sentencing Commission give rise to serious concerns about a disruption of the appropriate balance of governmental power among the coordinate Branches, we conclude, upon close inspection, that petitioner’s fears for the fundamental structural protections of the Constitution prove, at least in this case, to be “more smoke than fire,” and do not compel us to invalidate Congress’ considered scheme for resolving the seemingly intractable dilemma of excessive disparity in criminal sentencing. Id. at 384,109 S.Ct. 647. The Guidelines dramatically altered sentencing in federal courts. See Bums v. United States, 501 U.S. 129, 132, 111 S.Ct. 2182, 115 L.Ed.2d 123 (1991) (“The Sentencing Reform Act of 1984 revolutionized the manner in which district courts sentence persons convicted of federal crimes.”). The Anglo-American tradition of individualized sentencing was largely abandoned, depriving sentencing judges of much of their discretion and importing many questions traditionally handled at the trial stage into the sentencing process. Due process considerations tended to be ignored. See Bums, 501 U.S. at 147, 111 S.Ct. 2182 (Souter, J., dissenting) (“[A] defendant enjoys an expectation subject to due process protection that he will receive a sentence within the presumptively applicable range in the absence of grounds defined by the [Sentencing Reform] Act as justifying departure.”) (emphasis added); Joseph W. Luby, Reining in the “Junior Varsity Congress”: A Call for Meaningful Judicial Review of the Federal Sentencing Guidelines, 77 Wash. U.L.Q. 1199, 1207 (1999) (“harsher than Congress required or sound policy dictated”). B. Post-Booker In United States v. Booker, the Supreme Court held that the Sentencing Guidelines violated the Sixth Amendment which requires that facts under a Guideline enhancing a defendant’s sentence be proven to a jury beyond a reasonable doubt. 543 U.S. 220, 226-27, 125 S.Ct. 738,160 L.Ed.2d 621 (2005). Booker determined that the appropriate cure was to sever and excise the provision of the statute that rendered the Guidelines mandatory, 18 U.S.C. § 3553(b)(1). Booker, 543 U.S. at 245, 125 S.Ct. 738. As a result, the Guidelines are now advisory: We answer the question of remedy by finding the provision of the federal sentencing statute that makes the Guidelines mandatory incompatible with today’s constitutional holding. We conclude that this provision must be severed and excised, as must one other statutory section which depends upon the Guidelines’ mandatory nature. So modified, the federal sentencing statute makes the Guidelines effectively advisory. It requires a sentencing court to consider Guidelines ranges, but it permits the court to tailor the sentence in light of other statutory concerns as well. Id. at 246, 125 S.Ct. 738. The Guidelines still remained part of the sentencing algorithm. See id. at 264, 125 S.Ct. 738 (directing sentencing courts to consult the Guidelines when sentencing); see also 18 U.S.C. § 3553(a)(4) (directing sentencing courts to consider the Guidelines). The Sentencing Commission was to continue to fulfill its statutory mission. Id. at 263, 125 S.Ct. 738 (“The Sentencing Commission will continue to collect and study appellate court decisionmaking. It will continue to modify its Guidelines in light of what it learns, thereby encouraging what it finds to be better sentencing practices. It will thereby promote uniformity in the sentencing process.”). Also severed and excised was the provision of the statute requiring de novo review of departures from the Guidelines, 18 U.S.C. § 3742(3), because that provision depended on the mandatory nature of the Guidelines. Booker, 543 U.S. at 245, 125 S.Ct. 738. Appellate review of all sentences, whether inside or outside of the Guideline range, was limited to “unreasonableness.” Id. at 246, 125 S.Ct. 738. Booker and cases that followed did not purport to lift the heavy weight of the Guidelines and their Commentary on the scales of justice. They could not be ignored under section 3553(a). Courts of appeals at first held that although the Guidelines were now advisory, district courts could not substitute their own judgment of policy for the Sentencing Commission’s. See e.g., United States v. Castillo, 460 F.3d 337, 356 (2d Cir.2006) (“[Nothing in Booker suggests that it is the task of district court judges to pronounce broad policy choices rather than specific sentences based on the specific facts of a case.”); United States v. Pho, 433 F.3d 53, 64-65 (1st Cir.2006) (“[Sentencing decisions must be done case by case and must be grounded in case-specific considerations, not in general disagreement with broad-based policies enunciated by Congress or the Commission, as its agent.”); United States v. Eura, 440 F.3d 625, 633-34 (4th Cir.2006) (holding that district courts cannot give a lower sentence based on a policy disagreement with the Sentencing Commission); United States v. Williams, 456 F.3d 1353, 1364 (11th Cir.2006) (same). In three post-Booker decisions, Rita v. United States, — U.S. -, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007), Gall v. United States, — U.S.-, 128 S.Ct. 586,169 L.Ed.2d 445 (2007), and Kimbrough v. United States, — U.S. -, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), the Supreme Court elaborated on the effect of the Guidelines in light of their now advisory nature. In Rita, the Court held that courts of appeals can apply a presumption that a sentence imposed by the district court within a properly calculated Guideline range is reasonable. Rita, 127 S.Ct. at 2462-63. It noted that a presumption of reasonableness reflects the fact that, “by the time an appeals court is considering a within-Guidelines sentence on review, both the sentencing judge and the Sentencing Commission will have reached the same conclusion as to the proper sentence in the particular case.” Id. at 2463 (emphasis in original). Congressional delegation of authority to the Commission and the role of the sentencing judge as envisioned by Congress are complementary: ... [T]he presumption reflects the nature of the Guidelines-writing task that Congress set for the Commission and the manner in which the Commission carried out that task. In instructing both the sentencing judge and the Commission what to do, Congress referred to the basic sentencing objectives that the statute sets forth in 18 U.S.C. § 3553(a)____ That provision tells the sentencing judge to consider (1) offense and offender characteristics; (2) the need for a sentence to reflect the basic aims of sentencing, namely (a) “just punishment” (retribution), (b) deterrence, (c) incapacitation, (d) rehabilitation; (3) the sentences legally available; (4) the Sentencing Guidelines; (5) Sentencing Commission policy statements; (6) the need to avoid unwarranted disparities; and (7) the need for restitution. The provision also tells the sentencing judge to “impose a sentence sufficient, but not greater than necessary, to comply with” the basic aims of sentencing as set out above. Congressional statutes then tell the Commission to write Guidelines that will carry out these same § 3553(a) objectives. Thus, 28 U.S.C. § 991(b) indicates that one of the Commission’s basic objectives is to “assure the meeting of the purposes of sentencing as set forth in [§ 3553(a)(2) ].” The provision adds that the Commission must seek to “provide certainty and fairness” in sentencing, to “avoi[d] unwarranted sentencing disparities,” to “maintai[n] sufficient flexibility to permit individualized sentences when warranted by mitigating or aggravating factors not taken into account in the establishment of general sentencing practices,” and to “reflect, to the extent practicable [sentencing-relevant] advancement in [the] knowledge of human behavior.” Later provisions specifically instruct the Commission to write the Guidelines with reference to this statement of purposes, the statement that itself refers to § 3553(a). See 28 U.S.C. §§ 994(f), and 994(m). The upshot is that the sentencing statutes envision both the sentencing judge and the Commission as carrying out the same basic § 3553(a) objectives, the one, at retail, the other at wholesale. Id. at 2463 (emphasis in original). The judge in exercising discretion may not ignore the Guidelines. In Gall, the Court held that although the difference between a sentence imposed by the judge and that recommended by the Guidelines is not decisive, courts of appeals must review all sentences for reasonableness. Gall, 128 S.Ct. at 591. The Court again highlighted the importance of the Guidelines and noted that a sentencing judge must give serious consideration to them when imposing a non-Guideline sentence: As we explained in Rita, a district court should begin all sentencing proceedings by correctly calculating the applicable Guidelines range. As a matter of administration and to secure nationwide consistency, the Guidelines should be the starting point and the initial benchmark. The Guidelines are not the only consideration, however. Accordingly, after giving both parties an opportunity to argue for whatever sentence they deem appropriate, the district judge should then consider all of the § 3553(a) factors to determine whether they support the sentence requested by a party. In so doing, he may not presume that the Guidelines range is reasonable. He must make an individualized assessment based on the facts presented.... Id. at 596-97 (emphasis added). In Kimbrough, the Court held that courts of appeals cannot apply a presumption that a sentence outside the Guideline range is per se unreasonable when it is based upon a sentencing judge’s policy disagreement with the Commission’s “crack-cocaine” Guidelines. Kimbrough, 128 S.Ct. at 564. The Court began by noting the sentencing disparity in the Guidelines for crack and powder cocaine. It recognized that the 100-to-l ratio applied by the Commission results in a vast sentencing disparity between defendants charged with crack-cocaine and powder-cocaine offenses. Id. at 566. Defendants charged with crack-cocaine offenses are sentenced to three to six times longer prison terms than those charged with powder-cocaine offenses. Id. This disparity originated in the Anti-Drug Abuse Act of 1986, in which Congress created a two-tier scheme of five- and ten-year mandatory minimum sentences for drug manufacturing and distribution offenses. Id. The five-year mandatory minimum applies to any defendant responsible for 5 grams of crack-cocaine or 500 grams of powder; the ten-year applies to any defendant responsible for 50 grams of crack or 5,000 grams of powder. Id. at 567. As a result of this explicit congressional policy regarding crack-cocaine offenses, the Commission employed the Anti-Drug Abuse Act’s weight-driven scheme and set the offense level for crack-cocaine offenses much higher than that for powder-cocaine offenses. Id. The district court in Kimbrough disagreed with the Commission’s findings: “Concluding that the crack cocaine Guidelines drove the offense level to a point higher than is necessary to do justice in this case, the District Court thus rested its sentence on appropriate considerations ...” Id. at 575-76 (citations and quotation marks omitted). The Supreme Court affirmed the district court’s sentence even though the sentencing judge disagreed with the Commission’s policy. But it reaffirmed the Guidelines’ vitality in controlling a sentence: We have accordingly recognized that, in the ordinary case, the Commission’s recommendation of a sentencing range will reflect a rough approximation of sentences that might achieve § 3553(a)’s objectives. The sentencing judge, on the other hand, has greater familiarity with the individual case and the individual defendant before him than the Commission or the appeals court. He is therefore in a superior position to find facts and judge their import under § 3353(a) in each particular case. In light of these discrete institutional strengths, a district court’s decision to vary from the advisory Guidelines may attract greatest respect when the sentencing judge finds a particular case outside the heartland to which the Commission intends individual Guidelines to apply. On the other hand, while the Guidelines are no longer binding, closer review may be in order when the sentencing judge varies from the Guidelines based solely on the judge’s view that the Guidelines range fails properly to reflect § 3553(a) considerations even in a mine-run case. Id. at 575-76 (citations and quotation marks omitted; emphasis added). A recent decision of the Court of Appeals for the Second Circuit described Kimbrough’s impact as a “sea change” in sentencing jurisprudence. See United States v. Jones, 531 F.3d 163, 179-80 (2d Cir.2008). In United States v. Castillo, it joined the “First, Fourth, and Eleventh Circuits in holding that district courts may give non-Guidelines sentences only because of case-specific applications of the [18 U.S.C.] § 3553(a) factors, not based [solely] on policy disagreements with the disparity that the Guidelines for crack and powder cocaine create.” 460 F.3d 337, 361 (2d Cir.2006). It has acknowledged that the collective affect of Kimbrough and Gall on a district court’s discretion to disagree with the Guidelines may result in individual cases predicated upon a policy disagreement with the Commission. United States v. Regalado, 518 F.3d 143, 147 (2d Cir.2008) (per curiam). In effect, the district court has broad discretion to individualize sentences based on the unique fact pattern before it, but may not rest solely upon rejection of policies properly adopted by the Sentencing Commission. C. Correct Calculation of the Guidelines Required Although the Sentencing Guidelines are now advisory, the defendant and government retain a right to their correct calculation. See Gall, 128 S.Ct. at 597 (“As we explained in Rita, a district court should begin all sentencing proceedings by correctly calculating the applicable Guidelines range.”); United States v. Gray, 535 F.3d 128, 130 (2d Cir.2008) (“The first step of [reasonableness] ... review is to ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range.”) (quotation marks omitted); United States v. Sanchez, 517 F.3d 651, 661 (2d Cir.2008) (“A sentence would be procedurally unreasonable if, for example, the sentencing judge ... made an error in determining the applicable Guideline range ... ”) (citations and internal quotation marks omitted); United States v. Brown, 514 F.3d 256, 263 (2d Cir.2008) (“Since [the factors under 18 U.S.C. § 3553(a) ] include the sentencing ranges established for the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines ..., the court is required to make a determination of the applicable Guidelines range, or at least identification of the arguably applicable ranges, despite the fact that such ranges are now advisory.”) (internal quotation marks omitted); United States v. Fagans, 406 F.3d 138, 141 (2d Cir.2005) (“In many circumstances, an incorrect calculation of the applicable Guidelines range will taint not only a Guidelines sentence, if one is imposed, but also a non-Guidelines sentence, which may have been explicitly selected with what was thought to be the applicable Guidelines range as a frame of reference.”). Cf. United States v. Demaree, 459 F.3d 791 (7th Cir.2006), cert. denied, — U.S.-, 127 S.Ct. 3055, 168 L.Ed.2d 767 (2007) (holding that the Ex Post Facto Clause of the Fifth Amendment no longer prohibits the retroactive application of upwardly revised Sentencing Guidelines as it did prior to Booker); James Dillon, Doubting Demaree: The Application of Ex Post Facto Principles to the United States Sentencing Guidelines After United Sates v. Booker, 110 W. Va. L.Rev. 1033 (2008). Recent data from the Sentencing Commission indicates that the Guidelines still largely determine sentences imposed. Nearly 60% of the roughly 26,000 defendants sentenced after Kimbrough received a sentence within the Guideline range. See U.S. Sentencing Commission, Preliminary Post-Kimbrough/Gall Data Report, tbl. 1 (July 2008) (hereinafter, “Post-ifimbrough/Gall Data”), http://www.ussc.gov/ USSC_Kimbrough_GalLReport_July_08_ Final.pdf. For about 25% of these below-Guideline range sentences, the court was authorized by the government to depart, largely in light of substantial assistance by the defendant, see U.S.S.G. § 5K1.1, or an early disposition program departure. See U.S.S.G. § 5K3.1. See Post-Kimbrough/Gall Data, tbl. 1. Only 13.6% of defendants received a below-Guideline sentence without the government’s authorization: in 3.3% of cases, the court departed from the Guidelines and in 10.3% of cases, the court gave a non-Guideline variance under Booker. Id. It is apparent that the two-level enhancement for the fact that a gun was stolen, required by the Sentencing Commission, cannot be ignored if it is valid. The power to circumvent granted by 18 U.S.C. § 3553(a) is not an excuse to disregard. IV. Enhancement for Stolen Gun A. Guideline For defendants convicted under 18 U.S.C. § 922(g)(1) (felon-in-possession of a firearm), section 2K2.1(b)(4) of the Sentencing Guidelines mandates a two-level enhancement to the offense level if the firearm was stolen. See U.S.S.G. § 2K2.1(b)(4) (“If any firearm (A) was stolen, increase by 2 levels ... ”). Subsection (B) of the application note, which falls under the category of “Commentary,” explicitly states that the two-level enhancement “applies regardless of whether the defendant knew or had reason to believe that the firearm was stolen ...” Id. § 2K2.1 cmt. n. 8(B) (emphasis added). No policy reason or rationale for requiring a two-level increase in the offense level— even when the defendant believed that the firearm was not stolen — is provided. The Commentary is as binding as a Guideline. Stinson v. United States, 508 U.S. 36, 37-38, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993); infra section IV.D.l.b. Another application note provides that the two-level enhancement does not apply if the defendant is specifically charged with an offense involving a stolen firearm, see, e.g., 18 U.S.C. § 922®. See U.S.S.G. § 2K2.1 cmt. n. 8(A). “This is because the base offense level [for that crime of possessing a stolen firearm] takes into account that the firearm ... was stolen.” U.S.S.G. § 2K2.1 cmt. n. 8(A). The defendant in the instant case was not charged with this section 922® offense or any offense involving stolen firearms. An earlier version of U.S.S.G. § lB1.3(a)(4), titled “Relevant Conduct (Factors that Determine the Guideline Range)”, provided that “specific offense characteristics ... shall be determined on the basis of ... the defendant’s state of mind, intent, motive and purpose in committing the offense.” See United States v. Taylor, 937 F.2d 676, 682 (D.C.Cir.1991) (citing U.S.S.G. § lB1.3(a)(4) (earlier version)). This section was amended; the blanket scienter requirement was omitted. Id. The new version directs courts to consider “any other information specified in the applicable guideline.” U.S.S.G. § lB1.3(a)(4). Section 2K2.1(b)(2), the applicable Guideline in the instant case, contains no scienter element and, as noted infra section IV.B., the courts of appeals have refused to read one in. As pointed out by the Court of Appeals for the Third Circuit, U.S.S.G. § 2K2.1 and related provisions have been amended several times, resulting in the elimination of any mens rea requirement. The earlier version of § 2K2.1(b)(l) read “if the firearm was stolen or had an altered or obliterated serial number, increase by 1 level.” The Commission renumbered and amended this section to increase the level to 2. U.S.S.G. § 2K2.1(b)(2). And the earlier versions of § 2K2.2(b)(l) and § 2K2.3(b)(2)(c) read respectively “If the firearm was stolen or had an altered or obliterated serial number, increase by 1” and “If the defendant knew or had reason to believe that a firearm was stolen or had an altered or obliterated serial number, increase by 1.” (Emphasis added). The Commission consolidated these sections into new § 2K2.2(b)(2), which now reads “If the firearm was stolen or had an altered or obliterated serial number, increase by 2 levels.” In amending these sections, the Commission also added new § 2K2.3, “Receiving, Transporting, Shipping or Transferring a Firearm or Ammunition With Intent to Commit Another Offense, or With Knowledge that It Will be Used in Committing Another Crime.” The Commission intended this section to “address transfer of a weapon with intent or knowledge that it will be used to commit another offense.” U.S.S.G., App. C, at C. 97 (emphasis added). United States v. Mobley, 956 F.2d 450, 452 (3d Cir.1992) (emphasis in original). The provision has gone through further changes since Mobley. See U.S.S.G.App. C., amdts. 478, 522, 568, 575, 578, 586, 605, 629-31, 646, 669, 679, 680, 686, 691, 696, and 707. None of these amendments have altered the two-level enhancement for a stolen firearm, nor have they provided any indication of why the Commission believes that the enhancement is appropriate despite the lack of knowledge that the firearm involved was stolen. B. Appellate Review 1. Court of Appeals for the Second Circuit In a pre-Booker opinion, the Court of Appeals for the Second Circuit held that an earlier version of U.S.S.G. § 2K2.1(b)(4) did not contain a scienter requirement. United States v. Litchfield, 986 F.2d 21, 22-23 (2d Cir.1993) (per curiam). The rule of lenity which requires the court to construe an ambiguous criminal statute in favor of the defendant, see Polizzi, 549 F.Supp.2d at 377, was held to be inapplicable, without reaching the constitutional issues. Litchfield, 986 F.2d at 23 (“In sum, the language of 1989 Guidelines § 2K2.1(b)(2) was not ambiguous and did not contain a knowledge requirement, and the evolution of § 2K2 indicates that the omission of any such requirement was intentional. We conclude that there is no ambiguity and that the rule of lenity has no applicability.”) (emphasis added). In a subsequent opinion, the Court of Appeals for the Second Circuit did reach the constitutional issue and found that the two-level enhancement does not violate the due process clause of the Fifth Amendment. See United States v. Griffiths, 41 F.3d 844, 846 (2d Cir.1994) (per curiam). The court relied upon the reasoning of the Court of Appeals for the Ninth Circuit in United States v. Goodell, 990 F.2d 497, 498-500 (9th Cir.1993) “and other decisions that [had] addressed this issue.” Griffiths, 41 F.3d at 846. Cited by the court were decisions of the Eleventh Circuit, United States v. Richardson, 8 F.3d 769, 770 (11th Cir.1993); Tenth Circuit, United States v. Sanders, 990 F.2d 582, 584 (10th Cir.1993), overruled on other grounds by United States v. Gomez-Arrellano, 5 F.3d 464, 466-67 (10th Cir.1993); Ninth Circuit, Goodell, 990 F.2d at 498-500; Third Circuit, Mobley, 956 F.2d at 454-59; and Fifth Circuit, United States v. Singleton, 946 F.2d 23, 25-27 (5th Cir.1991). Even though the Sentencing Commission did not provide any rationale for the enhancement, the Court of Appeals for the Second Circuit suggested one post hoc by finding it reasonable to place on the acquirer of a firearm the burden of establishing that it was not stolen: The government reasonably may determine that stolen firearms often end up in the hands of criminals, thus warranting a rule that imposes on the recipient of a firearm the burden of ensuring that the firearm is not stolen. In addition, the enhancement, which traditionally has been considered by sentencing courts, does not create a separate substantive offense calling for a separate penalty. Griffiths, 41 F.3d at 846. As to the contention that the enhancement is constitutionally impermissible for an offense that is not a minor crime of strict liability, the Court of Appeals for the Second Circuit held that U.S.S.G. § 2K2.1(b)(4) is a strict liability “enhancement,” not a strict liability “crime,” and that “the government has a legitimate interest in punishing possession of a stolen firearm and placing the burden upon one who receives a firearm to ensure that the possession is lawful.” Id. at 845 (citing Mobley, 956 F.2d at 454-59). Litchfield and Griffiths were pr e-Booker decisions. They were decided before the “sea change” in sentencing, as described supra, in Jones by the Court of Appeals for the Second Circuit. That court has not addressed the enhancement for a stolen gun since the Supreme Court’s decision in Booker, 543 U.S. 220, 125 S.Ct. 738. It has held that a different two-level strict liability enhancement under U.S.S.G. § 2K2.1(b)(4) for a firearm with an altered or obliterated serial number is valid. See United States v. Brown, 514 F.3d 256, 269 (2d Cir.2008). That kind of enhancement is distinguishable from the one now addressed since an alteration or obliteration of serial number can be observed by the possessor, while whether the gun was stolen cannot. See 18 U.S.C. § 922(k). The fact that the gun was stolen is not visually detectable, nor is the criminal in possession capable of tracing the gun to determine if it was stolen, except in the most unusual circumstances. 2. Court of Appeals for the Third Circuit The pr e-Booker opinions of the courts of appeals for the Third Circuit in Mobley, 956 F.2d 450, and the Ninth Circuit in Goodell, 990 F.2d 497, thoroughly discuss the two-level enhancement. In Mobley, 956 F.2d 450, the court proffered a justification for the two-level enhancement in lieu of one not provided by the Commission. See Mobley, 956 F.2d at 453. By a 2-1 decision, it rejected defendant’s argument that “a distinction in sentences based solely on the stolen status of the gun is arbitrary and capricious without evidence of scienter” and that it “serves none of the purposes of sentencing — retribution, general deterrence, specific deterrence, and rehabilitation — so that § 2K2.1(b)(2) is in discord with the purpose of the Guidelines.” Id. The majority reasoned that the enhancement is not in violation of the Commission enabling statute setting forth its purposes because the expansive nature of section 922 of title 18 is regulatory in nature and therefore evinces general congressional intent to harshly penalize possession of stolen guns: Section 922(g) is part of the Gun Control Act of 1968.... It is not just a statute criminalizing possession of a firearm by convicted felons; it is part of a comprehensive scheme to regulate the movement of firearms.... Thus § 922(g) has a regulatory role. Moreover, the penalty it imposes, including U.S.S.G. § 2K2.1(b)(2), advances this role. Altered firearms, for example sawed-off shotguns, “have few legitimate uses,” U.S.S.G. § 2K2.1, commentary, and have most probably been altered to conceal or magnify their deadly potential. Also the trade in guns is monitored for a reason. Registration and verification procedures are imposed largely to combat crime. It is no secret that a chain of custody for a firearm greatly assists in the difficult process of solving crimes. When a firearm is stolen, determining this chain is difficult and when serial numbers are obliterated, it is virtually impossible. Therefore, stolen or altered firearms in the hands of people recognized as irresponsible pose great dangers, and the guideline here reflects this heightened danger. An examination of 18 U.S.C. § 922(g), § 922©, § 922© and U.S.S.G. § 2K2.1(b)(2) shows how Congress and the Commission regulate the trade in stolen or altered firearms. Together § 922(i) and § 922(j) provide that any person who “transport^” or “receive[s] ... any stolen firearm or stolen ammunition, knowing or having reasonable cause to believe” it stolen is culpable. In these sections Congress recognized the inherent evil in stolen guns and sought to regulate them. Section 922(g) targets a specific class of individuals— convicted felons. It provides that they shall not possess any firearm, regardless of the status of the firearm. So, for instance, if a convicted felon went into a sporting store, bought a shotgun to hunt, and signed all the necessary registration and verification forms, he would still be culpable. And if he obtained such a weapon from a drug dealer in some back street, it is reasonable that he would be more culpable. Thus § 2K2.1(b)(2) advances the overall regulatory scheme. Without empirical evidence, it is safe to say that stolen or pirated guns move in the back alleys and among clandestine meetings of the criminal world. Indeed Mobley admitted that he got his gun from a drug dealer named “Keith” in Columbia, South Carolina. A handgun is the consummate anti-personnel weapon. It is designed to be used against people. It defies reason to believe that there was anything benign in a convicted felon carrying a stolen handgun. Section 2K2.1(b)(2) regulates by punishing and potentially deterring such irregular and pernicious transactions; it rests on the theory that one would hardly be surprised to learn that possession of a gun bought from a drug dealer is not an innocent act.... Id. at 453-54 (some citations, quotation marks and footnote omitted; emphasis added). The court disregarded section 922’s specific directives requiring knowledge of a firearm’s characteristics (e.g. whether it was stolen) before penalizing the defendant. See infra section IV.D.2.b. The Commission’s basis for the two-level enhancement, as manifested by the Commentary to an earlier version of U.S.S.G. § 2K2.1, was that defendants in possession of stolen firearms tended to receive harsher sentences pre-Guidelines and that stolen firearms are used disproportionately in crimes. This justification is hardly persuasive since the proof in some cases with harsher sentences may have established that the defendant stole it himself or knew it was stolen. The Court of Appeals in Mobley added its own rationale: The Commission decided that possessing a stolen gun is a greater evil than possessing one legally purchased. Indeed, the inherent dangers associated with a convicted felon purchasing and owning a gun “makes it reasonable to impute knowledge to the defendant that his conduct was subject to legal restriction.” One, especially a convicted felon, is thus expected to exercise c