Appeals Court (August 29, 2008)

A defendant convicted of possessing a large capacity firearm under G.L. c. 269, § 10(m) who, at the time of the offense, did not possess a valid FID card, must be sentenced to a minimum sentence of two and one-half years in the State prison but not more than ten years.

No portion of any sentence imposed under G.L. c. 269, § 10(m) may be suspended.

A person convicted under G.L. c. 269, § 10(m) must serve a minimum term of imprisonment in the State prison of not less than one year, and that term may not be reduced by any means.


The defendant was indicted of several counts of possessing a large capacity firearm, in violation of G.L. c. 269, § 10(m) along with several related charges. The defendant entered a plea of guilty and was sentenced on the 10(m) indictment to a term of not less than one year and not more than one year and one day. The Commonwealth appealed arguing that G.L. c. 269, § 10(m) required a minimum sentence of two and a half years with one year to be served as mandatory minimum time.

General Laws c. 269, § 10(m) reads as follows:

"any person ... who knowingly has in his possession ... a large capacity weapon ... who does not possess a valid ... license to carry firearms ... shall be punished by imprisonment in a state prison for not less than two and one-half years nor more than ten years. The possession of a valid firearm identification card issued under section 129B shall not be a defense for a violation of this subsection; provided, however, that any such person charged with violating this paragraph and holding a valid firearm identification card shall not be subject to any mandatory minimum sentence imposed by this paragraph. The sentence imposed upon such person shall not be reduced to less than one year, nor suspended, nor shall any person convicted under this subsection be eligible for probation, parole, furlough, work release or receive any deduction from his sentence for good conduct until he shall have served such minimum term of such sentence...."

The defendant contended that the sentencing provisions of § 10(m) are ambiguous and, as a result, he was entitled to application of the so-called "rule of lenity," as laid out in Commonwealth v. Carrion, 431 Mass. 44, 45-46 (2000), with the result that the minimum sentence that may be imposed on the defendant was the minimum term of imprisonment described in the third sentence of § 10(m), one year ("the sentence imposed upon such person shall not be reduced to less than one year"), as opposed to the two and one-half year minimum sentence described in the first sentence ("shall be punished by imprisonment in a state prison for not less than two and one-half years").

Applying the traditional rules of statutory construction, the Court agreed with the Commonwealth, ruling that § 10(m) must be interpreted as follows: a) a defendant convicted under § 10(m) who, at the time of the offense, did not possess a valid FID card, must be sentenced to a minimum sentence of two and one-half years in the State prison but not more than ten years; b) no portion of any sentence imposed under § 10(m) may be suspended; and c) a defendant convicted under § 10(m) must serve a minimum term of imprisonment in a State prison of not less than one year, and that term may not be reduced by any means.

Note: The court did not reach the question of what sentence may be imposed on a person convicted under § 10(m) who, at the time of the offense, possessed a valid FID card. The Court did include language; however, that would indicate that under such circumstances a defendant would not be subject to the two and a half year sentence - "to the extent that § 10(m) provides that a holder of a valid FID card 'shall not be subject to any mandatory minimum sentence' prescribed in the subsection, it would arguably appear that such a person could not be subject to the minimum term of imprisonment provision of § 10(m) either. "