Burgert

MEMORANDUM *

David E. Burgert, Jr. appeals his conviction and sentence following his guilty plea to possession of a machine gun in violation of 18 U.S.C. § 922 (o). We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742 (a), and we affirm the conviction, but vacate the sentence and remand for sentencing.

Burgert contends that his conviction for possessing a machine gun must be reversed because § 922(o) is unconstitutional as applied to his intrastate possession of a “homemade” machine gun under United States v. Stewart, 348 F.3d 1132 (9th Cir.2003). We review de novo Burgert’s Commerce Clause argument. United States v. Cabaceang, 332 F.3d 622, 624-25 (9th Cir.2003). Section 922(o) makes it unlawful to “transfer or possess a machine gun.” 18 U.S.C. § 922 (o). Stewart carved out a narrow exception to § 922(o) violations for purely intrastate possession of entirely homemade machine guns. Stewart, 348 F.3d at 1136-37 (holding that § 922(o) is unconstitutional as applied to the purely intrastate possession of entirely homemade machine guns because the defendant did not obtain them by using channels of interstate commerce and his possession did not have a substantial…