Appeals court overturns Burgert sentence

David Burgert will be sentenced again for federal weapons crimes as officials wrangle over whether a companion with him during his arrest can legally be considered "another person."

Chief U.S. District Judge Donald Molloy in Missoula sentenced Burgert to seven years in prison in September 2003 for possessing an illegal machine gun and being a felon in possession of a firearm.

That arose from a pursuit by the SWAT team in the woods west of Kalispell in February 2002. When Burgert was captured, he was gripping a converted machine gun.

Burgert was sentenced to an additional three years this year in connection with a conspiracy to possess illegal firearms along with other members of the paramilitary group called Project 7.

It was Burgert's first conviction and sentence that the 9th Circuit Court of Appeals ruled on recently, sending the case back to Molloy for resentencing.

Burgert said Molloy improperly increased his sentence for "recklessly creat[ing] a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer."

With Burgert when he ran from officers was Tracy Brockway, who was sentenced last week to 27 months in prison for weapons violations.

Burgert argued that federal law defines "another person" as anyone except a participant in the offense who willingly participated in the flight. If Brockway willing participated in the flight, she does not qualify as "another person" and so shouldn't affect the severity of Burgert's sentence.

Besides that issue, the appeals court found there could be merit in Burgert's argument that his sentence violated sentencing rules because it exceeded the maximum sentence the court could have imposed, based on the facts he admitted.

Molloy will consider that when he resentences Burgert on March 13.

The 9th Circuit did not overturn Burgert's conviction as he requested.

He said it was unconstitutional under an exception to the law against transferring or possessing a machine gun. The exception is for purely intrastate possession of entirely homemade machine guns.

"Here, Burgert merely converted a Hesse semiautomatic rifle into a machine gun with a kit purchased from an out-of-state vendor," the court found. Because Burgert's gun was not entirely homemade, the exception doesn't apply, the court ruled.

Burgert also balked at Molloy's condition for Burgert's eventual supervised release. Burgert will be prohibited from associating with people actively involved with the militia.

He said that prohibition was unconstitutionally vague and infringes on his right to freedom of association.

The appeals court disagreed.

"Because Burgert expressly acknowledged to the sentencing judge that he understood and could comply with the terms of his condition," it was not vague, the court found.

Molloy imposed the same condition on Burgert in November 2004 when he added three years to the original term. Burgert asked for clarification.

Molloy answered that it means people with "anti-government views or views that the world is under attack. You know who militia people are."

The appeals court also struck down Burgert's assertion that the condition violates his constitutional right to free association.

"The district court has broad discretion in setting conditions of release, including restrictions that infringe on fundamental rights," the appeals court found.

The condition is designed to help Burgert's rehabilitation and protect the public, so it is lawful, the court said.

Reporter Chery Sabol may be reached at 758-4441 or by e-mail at csabol@dailyinterlake.com