COMMONWEALTH v. DASILVA (2025)

The language of G. L. c. 269, § 10 (m), which criminalizes unlawful possession of large capacity firearms and feeding devices, has been recognized as “vexing” and “confusing,” as being “no grammatical paragon,” and as having “caused courts some consternation” (citations omitted). Commonwealth v. Rodriguez, 482 Mass. 366, 368, 122 N.E.3d 1066 (2019). In Rodriguez, the Supreme Judicial Court “attempted to harmonize three less than harmonious provisions” of § 10 (m). Commonwealth v. Rossetti, 489 Mass. 589, 607, 186 N.E.3d 729 (2022). It concluded that, for persons convicted of unlawfully possessing large capacity firearms or feeding devices who do not have a valid firearm identification card (FID),¹ § 10 (m) permitted a judge to impose a sentence with “a lower end of the sentencing range ․ from one to two and one-half years, with at least one year to serve, in State prison” (emphasis added). Rodriguez, supra at 373, 122 N.E.3d 1066. Accordingly, the court held that a State prison sentence with a minimum term of only one year and a maximum term of two and one-half years was a legal sentence under § 10 (m). See id. at 374, 122 N.E.3d 1066.

In this appeal, we consider a question concerning sentencing under § 10 (m) that was neither asked nor answered in Rodriguez: When considering the upper end of the sentencing range for a violation of § 10 (m) by a person without a valid FID card, may the judge impose a maximum term of less than two and one-half years -- specifically, one year and one day? We hold that such a sentence is unlawful, and that the maximum term of the sentence imposed must be at least two and one-half years. Phrased in the language of the Rodriguez decision, we conclude that the Legislature intended to establish, for non-FID-card holders, an upper end of the sentencing range of from two and one-half to ten years in State prison.

Background. A grand jury indicted the defendant, Deivson A. DaSilva, for eleven crimes that began with an incident of domestic violence in July 2023 and led to the discovery of his unlawful possession of several weapons. After 408 days of pretrial detention, the defendant pleaded guilty to eight of the charges: unlawful possession of a large capacity firearm, in violation of G. L. c. 269, § 10 (m); unlawful possession of a machine gun, G. L. c. 269, § 10 (c); carrying a firearm without a license, G. L. c. 269, § 10 (a), said firearm being loaded, G. L. c. 269, § 10 (n); improper storage of a machine gun, G. L. c. 140, § 131L; assault and battery on a family or household member, G. L. c. 265, § 13M; violation of an abuse prevention order, G. L. c. 209A, § 7; and intimidation of a witness, G. L. c. 268, § 13B. A Superior Court judge sentenced the defendant to a State prison term of from one year to one year and one day, deemed served, on the § 10 (m) conviction. The judge also sentenced him to house of correction sentences of two years for possession of a machine gun, two years for unlawful carrying of a loaded firearm, and eighteen months for improper storage of a machine gun, all to be served concurrently with each other and with the State prison sentence, with 408 days of jail-time credit. Finally, the defendant received concurrent two-year terms of probation, from and after the incarcerated sentences, on the remaining convictions.

At the change of plea hearing, the Commonwealth argued that the sentence of from one year to one year and one day for the § 10 (m) conviction was not a lawful sentence under the plain language of the statute or under the holding of Rodriguez. The judge disagreed. The Commonwealth raised the same argument in a timely-filed motion to revise and revoke the § 10 (m) sentence, which was denied. See Mass. R. Crim. P. 29 (a) (1), as appearing in 489 Mass. 1503 (2022). The Commonwealth appeals from the order denying the motion to revise and revoke. We reverse the order, vacate the sentence, and remand for resentencing.

Discussion. In most cases in which a Superior Court judge imposes a State prison sentence, the judge must specify a sentencing range with a minimum term and a maximum term. See Rossetti, 489 Mass. at 595-596, 186 N.E.3d 729; G. L. c. 279, § 24.² The statute governing the offense in question usually establishes the boundaries from which the judge must select the lower and upper ends of the sentence. See Rossetti, supra at 596, 601-602, 186 N.E.3d 729. The “ ‘minimum term’ refers to the length of time imposed as the lower end of a sentence expressed as a range; it indicates the shortest period of time to which the offender is sentenced.” Id. at 595-596, 186 N.E.3d 729. The minimum term is the amount of time that the defendant must serve -- subject to certain potential reductions such as good conduct, for example -- before becoming eligible for release on parole. See id. at 596, 599, 186 N.E.3d 729.

With respect to the maximum term, the offense-specific statute usually “provides that a defendant ‘shall be punished by imprisonment for not more than’ a certain length of time.” Rossetti, 489 Mass. at 601, 186 N.E.3d 729. The governing statute thus “creates the maximum term of incarceration that a sentencing judge may impose on a defendant and, therefore, ‘the maximum amount of time that the prisoner will serve in prison if he ․ is not granted parole.’ ” Id. at 601-602, 186 N.E.3d 729, quoting Commonwealth v. Brown, 431 Mass. 772, 774, 730 N.E.2d 297 (2000).

The sentencing provisions of § 10 (m) are the source of the confusion caused by the statute.³ Section 10 (m) initially states that unauthorized ⁴ possession of “a large capacity weapon or large capacity feeding device therefor,” without “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.” G. L. c. 269, § 10 (m). As noted, the judge sentenced the defendant here to a minimum term of one year and a maximum term of one year and one day, which is entirely outside of the sentencing range set forth in above-quoted clause of the statute. The judge's choice of this seemingly unauthorized sentence was not unreasonable, however, given two other clauses in § 10 (m) as construed by Rodriguez.

The second relevant clause states that possession of an FID card is not a defense to § 10 (m), but that holders of FID cards “shall not be subject to any mandatory minimum sentence imposed by [§ 10 (m)].” This is immediately followed by the third clause, which mandates, “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 ․” (emphasis added). G. L. c. 269, § 10 (m). In harmonizing the three clauses, the Rodriguez court reasoned that “such person” in the third clause refers to violators who do not hold FID cards. See Rodriguez, 482 Mass. at 369, 122 N.E.3d 1066.

As a result, the first and third clauses “each provide for mandatory minimum sentences, albeit different ones, each applicable to the same non-FID-card-holding felons.” Rodriguez, 482 Mass. at 369, 122 N.E.3d 1066. As the court later clarified, a more accurate description would be that the “not less than two and one-half years” clause in § 10 (m) sets forth a “minimum term,” whereas § 10 (m)’s “not be reduced to less than one year” clause sets forth a “mandatory minimum sentence.” Rossetti, 489 Mass. at 608 n.30, 186 N.E.3d 729. Moreover, as reconciled in Rodriguez, supra at 368-370, 122 N.E.3d 1066, the second clause regarding the significance of holding a valid FID card, while not intended “to act as a ‘get out of jail free’ card,” id. at 368 n.1, 122 N.E.3d 1066, does create a distinction whereby FID card holders are not subject to the mandatory minimum sentence of one year set forth in the third provision; that provision applies only to those who do not hold FID cards. And, as we stated at the outset, the court harmonized the three seemingly conflicting clauses by holding that for violators without FID cards, a judge is permitted to select a minimum term between one year and two and one-half years.

The precise question reported to the court in Rodriguez was whether the defendant, who was convicted of violating § 10 (m) and did not have a valid FID card, could “lawfully be sentenced to State [p]rison for not less than one year nor more than two and one-half years?” Rodriguez, 482 Mass. at 366, 122 N.E.3d 1066. The Supreme Judicial Court answered, “Yes.” Id. In sentencing the defendant here to a term of from one year to one year and one day, the judge found nothing in Rodriguez to require that the maximum term of a sentence under § 10 (m) must be at least two and one-half years. We agree that Rodriguez is silent as to the upper range of sentences available under § 10 (m), except to affirm that two and one-half years is an acceptable number. As the defendant accurately states in his brief, in arguing that the maximum term of a sentence under § 10 (m) cannot go below two and one-half years, the Commonwealth is advocating for a one-of-a-kind restriction on a judge's sentencing discretion: “[a] minimum maximum sentence.” We agree that the result the Commonwealth suggests is both unusual and unique. But, so is § 10 (m). See Rossetti, 489 Mass. at 609 n.31, 186 N.E.3d 729; Rodriguez, supra at 370, 122 N.E.3d 1066. Given the unusual and unique terms of § 10 (m), we agree that a “minimum maximum” term of two and one-half years is consistent with the language of the statute as a whole and with the Legislature's intent as explained in Rodriguez.

To determine the permissible upper range of a sentence for a person convicted of a violation of § 10 (m) who does not hold an FID card, we must endeavor to “[h]armoniz[e] the provisions in a manner that does not make any of the statutory language superfluous, that sees the statute as a whole without internal contradiction, and that renders the legislation consistent with common sense, all as the Legislature intended.” Rodriguez, 482 Mass. at 370-371, 122 N.E.3d 1066, citing Commonwealth v. Figueroa, 464 Mass. 365, 368, 982 N.E.2d 1173 (2013), and Commonwealth v. Woods Hole, Martha's Vineyard & Nantucket S.S. Auth., 352 Mass. 617, 618, 227 N.E.2d 357 (1967).

The only provision in § 10 (m) truly pertinent to the maximum term is the first of the three clauses discussed above, which states that an offender “shall be punished by imprisonment in a state prison for not less than two and one-half years nor more than ten years.” G. L. c. 269, § 10 (m). The clause “set[s] out a full sentencing range -- ․ a minimum of two and one-half years and maximum of ten years.” Rodriguez, 482 Mass. at 370, 122 N.E.3d 1066. While this clause refers to the maximum term available under the statute, the second and third clauses discussed above concern only the minimum term. The Rodriguez decision construed the second and third clauses to permit judges to set the lower end of a sentence below the range prescribed in the first clause, but we do not read the statute or Rodriguez as permitting the upper end of the sentence also to fall outside of the prescribed range. To permit judges to impose sentences with both the minimum and maximum terms falling completely outside of the full sentencing range set forth in the first clause would render the “not less than two and one-half years” language of that clause null.⁵ Adopting such a construction “would violate the fundamental and long-standing principle of statutory interpretation ‘that we must strive to give effect to each word of a statute so that no part will be inoperative or superfluous.’ ” Commonwealth v. Fleury, 489 Mass. 421, 427, 183 N.E.3d 1145 (2022), quoting Ciani v. MacGrath, 481 Mass. 174, 179, 114 N.E.3d 52 (2019).

Because the Legislature must have intended for the “not less than two and one-half years” provision to have some effect, we conclude that for a violator without an FID card, a State prison sentence that can be fully served in less than two and one-half years, without parole, cannot be what the Legislature intended. We conclude that the maximum term of a sentence for a violation of § 10 (m) committed by a person without a valid FID card must be at least two and one-half years. Whereas a sentence of from one year to two and one-half years is lawful, see Rodriguez, 482 Mass. at 366, 374, 122 N.E.3d 1066, a sentence of from one year to one year and one day is not.

Conclusion. The order denying the Commonwealth's motion to revise and revoke an illegal sentence is reversed, the defendant's sentence for his violation of § 10 (m) is vacated, and the case is remanded to the Superior Court for resentencing.

So ordered.

FOOTNOTES

1.   A valid license to carry firearms is necessary to possess a large capacity weapon or feeding device. See G. L. c. 269, § 10 (m). Offenders who do not have a license to carry, but do have an FID card, are “sentenced quite differently, for reasons that are not made clear, although inferably to recognize that those who possess a valid FID card have at least attempted to be more compliant with the gun laws.” Rodriguez, 482 Mass. at 373-374, 122 N.E.3d 1066.

2.   Under G. L. c. 279, § 24, when imposing a State prison sentence and except for habitual offenders and adults convicted of murder in the first degree, the judge “shall fix a maximum and a minimum term.” The minimum State prison sentence “may not be less than one year.” Id.

3.   The first paragraph of § 10 (m), as appearing in St. 2014, c. 284, § 91, which was in effect when the defendant was indicted, provides,“Notwithstanding the provisions of paragraph (a) or (h), any person not exempted by statute who knowingly has in his possession, or knowingly has under his control in a vehicle, a large capacity weapon or large capacity feeding device therefor who does not possess a valid license to carry firearms issued under section 131 or 131F of chapter 140, except as permitted or otherwise provided under this section or chapter 140, 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; provided, however, that the commissioner of correction may, on the recommendation of the warden, superintendent or other person in charge of a correctional institution or the administrator of a county correctional institution, grant to such offender a temporary release in the custody of an officer of such institution for the following purposes only: (i) to attend the funeral of a spouse or next of kin; (ii) to visit a critically ill close relative or spouse; or (iii) to obtain emergency medical services unavailable at such institution. Prosecutions commenced under this subsection shall neither be continued without a finding nor placed on file. The provisions of section 87 of chapter 276 relative to the power of the court to place certain offenders on probation shall not apply to any person 18 years of age or over charged with a violation of this section.”In 2024, after the defendant pleaded guilty, “An Act modernizing firearm laws,” St. 2024, c. 135 (act), came into effect and struck the definition of “large capacity weapon,” replacing it with a definition of “large capacity firearm.” G. L. c. 140, § 121, as amended through St. 2024, c. 135, § 22. By § 125, the act also amended § 10 (m) to replace the word “weapon” with the word “firearm.” These amendments are immaterial to the issue before us, and all statutory citations are to § 10 (m) as appearing in St. 2014, c. 284.

4.   The second paragraph of § 10 (m) exempts the following persons from prosecution:“(i) [A]ny officer, agent or employee of the commonwealth or any other state or the United States, including any federal, state or local law enforcement personnel; (ii) any member of the military or other service of any state or the United States; (iii) any duly authorized law enforcement officer, agent or employee of any municipality of the commonwealth; (iv) any federal, state or local historical society, museum or institutional collection open to the public; provided, however, that any such person described in clauses (i) to (iii), inclusive, is authorized by a competent authority to acquire, possess or carry a large capacity semiautomatic weapon and is acting within the scope of his duties; or (v) any gunsmith duly licensed under the applicable federal law.”

5.   Already, a judge sentencing an offender holding a valid FID card may disregard the “not less than two and one-half years” language. See Rodriguez, 482 Mass. at 368 n.1, 122 N.E.3d 1066 (sentencing judge has “discretion to sentence an FID-card-holding felon to a sentence ranging presumably from probation to no more than ten years in State prison”).

MASSING, J.