United States v. Wynn ( 2004 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206 2 United States v. Wynn No. 02-4354
ELECTRONIC CITATION: 2004 FED App. 0118P (6th Cir.)
File Name: 04a0118p.06 _________________
COUNSEL
UNITED STATES COURT OF APPEALS
ARGUED: Charles E. Fleming, FEDERAL PUBLIC
FOR THE SIXTH CIRCUIT DEFENDER’S OFFICE, Cleveland, Ohio, for Appellant.
_________________ Duane J. Deskins, ASSISTANT UNITED STATES
ATTORNEY, Cleveland, Ohio, for Appellee. ON BRIEF:
UNITED STATES OF AMERICA , X Charles E. Fleming, FEDERAL PUBLIC DEFENDER’S
Plaintiff-Appellee, - OFFICE, Cleveland, Ohio, for Appellant. Duane J. Deskins,
- ASSISTANT UNITED STATES ATTORNEY, Cleveland,
- No. 02-4354 Ohio, for Appellee.
v. -
> _________________
,
DEMETRIUS WYNN , - OPINION
Defendant-Appellant. - _________________
N
RONALD LEE GILMAN, Circuit Judge. In sentencing
Demetrius Wynn under U.S. Sentencing Guidelines § 2K2.1,
the district court determined that a two-level enhancement
Appeal from the United States District Court was warranted because Wynn possessed a destructive device.
for the Northern District of Ohio at Akron. Wynn claims that his sawed-off shotgun does not qualify as
No. 02-00232—James Gwin, District Judge. such a device. To the contrary, we conclude that because
Wynn’s sawed-off shotgun is a weapon that will expel a
Argued: March 18, 2004 projectile by the action of an explosive and has a barrel with
a bore of more than one-half inch in diameter, it is a
Decided and Filed: April 23, 2004 destructive device as defined by Application Note 4 to
§ 2K2.1. We therefore AFFIRM the judgment of the district
Before: COLE and GILMAN, Circuit Judges; court.
SCHWARZER, Senior District Judge.*
I. BACKGROUND
Wynn pled guilty to being a felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g)(1), and to
possessing an unregistered sawed-off shotgun, in violation of
26 U.S.C. § 5861(d). The weapon in question was a .20
gauge shotgun with a modified overall length of 19.5 inches
*
W illiam W Schwarzer, Senior United States District Judge for the and a barrel length of 12.5 inches. As part of his plea
Northern District of California, sitting by designation.
1
No. 02-4354 United States v. Wynn 3 4 United States v. Wynn No. 02-4354
agreement, Wynn admitted that the sawed-off shotgun was a 26 U.S.C. § 5845(f) was “broad enough to include a sawed-
firearm as defined in 26 U.S.C. § 5845(a)(1) and (2). off shotgun.” Specifically, the court noted that a shotgun with
a bore of more than a half inch in diameter is by definition a
U.S. Sentencing Guidelines § 2K2.1 establishes the destructive device under § 5845(f), unless it is the kind of
sentencing range for Wynn’s convictions. Wynn had two shotgun appropriate for sporting purposes. “And in this
prior felony convictions for crimes of violence, which caused case,” the court stated, “the shotgun had a bore of more than
his Base Offense Level to be set at 26. The Presentence a half-inch diameter.” Sawed-off shotguns, moreover, are not
Report further determined that a two-level enhancement was used for sporting purposes.
warranted because Wynn’s offense involved a destructive
device as described in 26 U.S.C. 5845(a). Application Note The district court ultimately applied the two-level
11 to § 2K2.1 permits what would otherwise appear to be enhancement because it agreed with the government’s
“double counting” by expressly providing that “a defendant interpretation that any firearm listed in § 5845(a), such as a
whose offense involves a destructive device receives both the sawed-off shotgun, is a destructive device. For further
base offense level from the subsection applicable to a firearm support, the court reiterated that the definition of destructive
listed in 26 U.S.C. § 5845(a) . . . , and a two-level device under § 5845(f) “gives all indication that this [sawed-
enhancement under subsection (b)(3).” U.S. Sentencing off shotgun] should be considered to be a destructive device.”
Guidelines Manual § 2K2.1, cmt. n.11 (2002). This timely appeal followed.
Wynn filed a Sentencing Memorandum objecting to the II. ANALYSIS
two-level increase for possession of a destructive device. He
argued that the definition of a destructive device in A. Standard of review
Application Note 4 to § 2K2.1 does not encompass a sawed-
off shotgun. First, he suggested that Application Note 4's “In reviewing a sentence imposed under the Sentencing
language that a destructive device “is a type of firearm listed Guidelines, we are required by statute to ‘accept the findings
in 26 U.S.C. § 5845(a)” means that a destructive device is of fact of the district court unless they are clearly erroneous
simply “one type” of firearm listed in that provision. The and to give due deference to the district court’s application of
government, on the other hand, interprets the same phrase to the guidelines to the facts.’” United States v. Horn, 255 F.3d
mean that “all types” of firearms listed in § 5845(a) are 610, 612 (6th Cir. 2004) (quoting 18 U.S.C. § 3742(e)).
destructive devices. Second, Wynn argued that because
18 U.S.C. § 924(c)(1)(B) imposes vastly different penalties We “must follow the clear and unambiguous language of
on defendants who possess a destructive device as opposed to the Sentencing Guidelines when interpreting and applying
a sawed-off shotgun while committing a violent or drug- specific provisions.” United States v. Young, 266 F.3d 468,
trafficking crime, the two items should not be treated as 484 (6th Cir. 2001). The “[s]entencing guidelines should be
equivalents under § 2K2.1. The government responds by read as written,” United States v. Cobb, 250 F.3d 346, 349
questioning the relevance of the penalty scheme under (6th Cir. 2001), and the “commentary . . . is authoritative
§ 924(c)(1)(B) to the Sentencing Guideline in question. unless it violates the Constitution or a federal statute, or is
inconsistent with, or a plainly erroneous reading of, that
At sentencing, the district court raised an additional point. guideline.” United States v. Lewis, 156 F.3d 656, 660 (6th
The court found that the definition of a destructive device in Cir. 1998) (citation and quotation marks omitted).
No. 02-4354 United States v. Wynn 5 6 United States v. Wynn No. 02-4354
B. Interpretation of the term “destructive device” (Emphasis added.)
1. Application Note 4, Sentencing Guidelines § 2K2.1 Wynn does not dispute that § 5845(a)(1) and (2) cover the
shotgun that was in his possession. He argues instead that
A defendant convicted of unlawfully possessing a firearm when Application Note 4 states that a destructive device “is
is potentially subject to Sentencing Guidelines § 2K2.1(b)(3), a type of firearm listed in 26 U.S.C. § 5845(a),” this simply
which provides for a two-level enhancement to the base means that a destructive device is one type of firearm listed in
offense level if the offense involved a destructive device. § 5845(a), i.e., a destructive device under subsection (8).
Application Note 4 defines a “destructive device” in the Wynn points out that if a sawed-off shotgun is considered a
following manner: destructive device, then it would be redundant to describe
shotguns and modified shotguns in (a)(1) and (a)(2),
“Destructive device” is a type of firearm listed in 26 respectively, and still list “destructive devices” as a separate
U.S.C. § 5845(a), and includes any explosive, category in (a)(8).
incendiary, or poison gas - - (i) bomb, (ii) grenade, (iii)
rocket having a propellant charge of more than four In contrast, the government reads Application Note 4's
ounces, (iv) missile having an explosive or incendiary phrase “is a type of firearm listed in 26 U.S.C. § 5845(a)” as
charge of more than one-quarter ounce, (v) mine, or (vi) meaning that all firearms listed in § 5845(a) are destructive
device similar to any of the devices described in the devices. Because Wynn admits that his shotgun is covered by
preceding clauses; any type of weapon which will, or § 5845(a)(1) and (2), the government contends that the
which may be readily converted to, expel a projectile by shotgun is by definition a destructive device. We find this
the action of an explosive or other propellant, and which interpretation awkward for two reasons. First, the
has any barrel with a bore of more than one-half inch in government’s reading is circular: if the term “destructive
diameter; or any combination of parts either designed or device” applies to all of the firearms listed in § 5845(a),
intended for use in converting any device into any which includes the category “a destructive device” under
destructive device listed above. For a more detailed subsection (a)(8), then this leads us back to where we started.
definition, refer to 26 U.S.C. § 5845(f). Second, if everything listed in § 5845(a) is a destructive
device, then why are the examples in Application Note 4
U.S. Sentencing Guidelines Manual § 2K2.1, cmt. n.4 (2002) (e.g., a bomb, grenade, rocket, etc.) exclusively drawn from
(Emphasis added). Section 5845(a) provides in turn: the comprehensive definition of a destructive device found in
§ 5845(f)? Why are the other weapons listed in § 5845(a)
The term “firearm” means (1) a shotgun having a barrel (e.g., a sawed-off shotgun, machine gun, silencer, etc.) not
or barrels of less than 18 inches in length; (2) a weapon given as examples as well.
made from a shotgun if such weapon as modified has an
overall length of less than 26 inches or a barrel or barrels We have found no satisfactory answers to these questions,
of less than 18 inches in length; (3) a rifle . . . ; (4) a and therefore discount the government’s interpretation of
weapon made from a rifle . . . ; (5) any other weapon, as Application Note 4. On the other hand, for the reasons set
defined in subsection (e); (6) a machine gun; (7) any forth in Part II.B.3. below, we conclude that Wynn’s
silencer . . . ; and (8) a destructive device. alternative interpretation provides him with no basis for relief.
No. 02-4354 United States v. Wynn 7 8 United States v. Wynn No. 02-4354
2. Relevance of 18 U.S.C. §§ 921(a) and 924(c) (A) any explosive, incendiary, or poison gas—(i) bomb,
(ii) grenade, (iii) rocket . . . , (iv) missile . . . , (v) mine,
Wynn also points to the statutory definitions and penalties or [similar device];
set forth in Title 18 of the United States Code to support his
theory that a sawed-off shotgun should not be considered a (B) any type of weapon . . . by whatever name known
destructive device for the purposes of Sentencing Guidelines which will, or which may be readily converted to, expel
§ 2K2.1. A person convicted of a crime of violence or a drug a projectile by the action of an explosive or other
trafficking crime, who possesses a firearm when committing propellant, and which has any barrel with a bore of more
the offense, is subject to the following penalties under than one-half inch in diameter[.]
§ 924(c)(1):
Wynn therefore argues that because Congress’s penalty
(B) If the firearm possessed by a person scheme in § 924(c) clearly differentiates between a
destructive device and a sawed-off shotgun, the Sentencing
(i) is a short-barreled rifle, short-barreled shotgun, or Guidelines § 2K2.1 should do the same.
semiautomatic assault weapon, the person shall be
sentenced to a term of imprisonment of not less than 10 We acknowledge that Congress intended, at least for the
years; or purposes of Title 18, to differentiate between a destructive
device and a sawed-off shotgun. But “when two statutes
(ii) is a machine gun or a destructive device, or is conflict to some degree they should be read together to give
equipped with a firearm silencer or firearm muffler, the effect to each if that can be done. . . .” Muller v. Lujan, 928
person shall be sentenced to a term of imprisonment of F.2d 207, 211 (6th Cir. 1991). Perhaps Congress believed
not less than 30 years. that there was no reason to differentiate between failing to
register a sawed-off shotgun and, say, a grenade. Section
18 U.S.C. § 924(c)(1)(B) (Emphasis added.) This court has 5861(d), after all, punishes the failure to register such items,
recognized that § 924(c) demonstrates Congress’s intent to and the maximum statutory penalty for the violation of this
punish defendants using destructive devices more severely provision is 10 years’ imprisonment. On the other hand, in 18
than those using sawed-off shotguns. United States v. Sims, U.S.C. § 924(c), Congress presumably concluded that
975 F.2d 1225, 1236 (6th Cir. 1992) (observing that the different minimum penalties were appropriate—10 years
penalty scheme presumably reflects Congress’s belief that versus 30 years—for individuals who possess a firearm while
machine guns and explosive devices are more dangerous than committing violent or drug crimes, depending on whether
short-barreled rifles and sawed-off shotguns). they had a sawed-off shotgun as opposed to a grenade.
Whether a defendant used a “destructive device” for the We see no need, however, to speculate further about the
purposes of § 924(c) is determined by the definition of that reason for the differential treatment of these items in Title 26
term in 18 U.S.C. § 921(a)(4), which is identical to the versus Title 18. Wynn was convicted of violating 26 U.S.C.
definition found in 26 U.S.C. § 5845 (f). According to § 5861(d), not 18 U.S.C. § 924(c). Sentencing Guidelines
§ 921(a)(4), a “destructive device” means: § 2K2.1 establishes the sentencing range for violations of
26 U.S.C. § 5861(d), and we must apply the definition of a
destructive device as found in Application Note 4. See United
No. 02-4354 United States v. Wynn 9 10 United States v. Wynn No. 02-4354
States v. Jones, 107 F.3d 1147, 1164 n.16 (6th Cir. 1997) recognized as particularly suitable for sporting
(commenting that we should “confine our inquiry to the purposes[.]
Guidelines themselves and not [] venture out on a sojourn
throughout the United States Code”). The inconsistency, in A weapon that expels a projectile by the action of an
other words, is noted but not deemed determinative. explosive fairly describes a firearm. A sawed-off shotgun
certainly is designed to expel a projectile (lead pellets) by
3. The definition of destructive device in 26 U.S.C. means of an explosive or other propellant (gunpowder). The
§ 5845(f) district court stated at the sentencing hearing that Wynn’s
shotgun had a bore of more than a half-inch diameter, thus
Unlike the district court, we think that Wynn’s construction making his weapon a destructive device under the language
of Application Note 4's opening phrase is plausible, but we do of both Application Note 4 and the “detailed definition”
not find it dispositive. We find more compelling the district found in 26 U.S.C. § 5845(f).
court’s observation that the definition of destructive device,
both in Application Note 4 and in 26 U.S.C. § 5845(f), is Our conclusion that Congress intended to include sawed-off
broad enough to include a sawed-off shotgun for a different shotguns within the definition of a destructive device is also
reason. To recap, Application Note 4 states in part that a supported by the legislative history of the Gun Control Act of
destructive device 1968, 18 U.S.C. §§ 921-950. Congress passed the Act to
amend Title 18's regulations on the transfer and sale of
includes . . . any type of weapon, which will, or which firearms. Conf. Rep. No. 90-1956 (1968), reprinted in 1968
may be readily converted to, expel a projectile by the U.S.C.C.A.N. 4426. The Gun Control Act also revised the
action of an explosive or other propellant, and which has National Firearms Act, 26 U.S.C. §§ 5801-5880, “to cover
any barrel with a bore of more than one-half inch in additional weapons, most notably destructive devices.” 1968
diameter; or any combination of parts either designed or U.S.C.C.A.N. at 4434. Because, as discussed above, the
intended for use in converting any device into any definition of a destructive device is identical in both
destructive device listed above. For a more detailed 18 U.S.C. § 921(a)(4) and 26 U.S.C. § 5845(f), the legislative
definition, refer to 26 U.S.C. § 5845(f). history from the Gun Control Act sheds light on Congress’s
intent in formulating these matching provisions. See United
(Emphasis added.) The detailed definition at 26 U.S.C. States v. Posnjak, 457 F.2d 1110, 1113, 1114 (2d Cir. 1972)
§ 5845(f) in turn provides: (noting that the Gun Control Act included “destructive
devices” for the first time in Title 18, somewhat redefined
The term destructive device means (1) any explosive, “destructive devices” for Title 26, and that the definitions
incendiary, or poison gas (A) bomb, (B) grenade, (C) were identical).
rocket . . . , (D) missile . . . , (E) mine, or (F) similar
device; (2) any type of weapon by whatever name known In the Conference Report on the Gun Control Act, the
which will, or which may readily converted to, expel a House managers described the compromise reached on the
projectile by the action of an explosive or other definition of destructive device for Title 18:
propellant, the barrel or barrels of which have a bore of
more than one-half inch in diameter, except a shotgun or The House bill defined the term “destructive device” to
shotgun shell which the Secretary finds is generally mean any explosive, incendiary, or poison gas bomb,
No. 02-4354 United States v. Wynn 11 12 United States v. Wynn No. 02-4354
grenade, mine, rocket, missile or similar device and to diameter. 18 U.S.C. § 921(a)(4)(B) and 26 U.S.C.
include any type of weapon which will or is designed to § 5845(f)(2).
or may be readily converted to expel a projectile by the
action of any explosive and which has any barrel with a We have found only one case, United States v. Demko, 216
bore of one-half inch or more in diameter. It excluded F.3d 1049 (Fed. Cir. 2000), where the parties actually
from such term the following: Any device which is not litigated whether a shotgun fell within § 5845(f)(2)’s
used, or which is not intended to be used, as a weapon, definition of destructive device. The defendants in Demko
any shotgun other than a short-barreled shotgun, any contended that the Bureau of Alcohol, Tobacco and Firearms
nonautomatic rifle (other than a short-barreled rifle) (ATF) had improperly applied the term to a Striker-12
generally recognized or particularly suitable for hunting shotgun. They argued that “the qualifying clause of the
big game. . . . statute ‘which the Secretary finds is generally recognized as
particularly suitable for sporting purposes’ should be
1968 U.S.C.C.A.N. at 4427 (Emphasis added.) The House interpreted to only modify the term ‘shotgun shell’ and thus
definition explicitly states that short-barreled shotguns are not exclude the word ‘shotgun’ from the definition of ‘destructive
excluded from the definition of a destructive device. In other device.’” Id. at 1051.
words, they are considered destructive devices. Congress
adopted the Senate amendment’s definition of a destructive The Federal Circuit rejected this argument because “the
device, but stated that it was “essentially the same as the plain language of § 5845(f)(2) indicates that the qualifying
House bill.” Id. The Senate changed the language describing clause modifies both ‘shotgun’ and ‘shotgun shell.’” Id. at
the exceptions to what was considered a destructive device. 1052. To interpret the clause as modifying only “shotgun
Under the Senate’s formulation, shell” would, moreover, lead to the absurd result that
shotguns are not destructive devices, but that all shotgun
excluded from the definition are shotguns and shotgun shells (except ones used for sporting purposes) are. Id. at
shells found by the Secretary to be suitable for sporting 1053. The Demko court therefore held that the ATF properly
purposes, and any device which the Secretary finds is an determined that the Striker-12 shotgun was a destructive
antique or a rifle which the owner intends to use solely device because “the gun is a military-type shotgun, rather
for sporting purposes. Further, the Senate amendment than one suitable for sporting purposes.” Id. at 1051. The
does not specifically exclude the nonautomatic rifles Eighth Circuit has also held that a sawed-off shotgun is a
excluded by the House bill. destructive device, albeit without any analysis. See United
States v. Lee, 351 F.3d 350, 351 n.1 (8th Cir. 2003)
Id. (summarily affirming the district court’s conclusion that “an
unregistered sawed-off . . . shotgun[] meets the statutory
In sum, the only types of firearms that are not considered definition of destructive device” as found in 26 U.S.C.
destructive devices for the purposes of U.S. Sentencing § 5845(f)). We reach the same conclusion regarding Wynn’s
Guidelines § 2K2.1 are those that are used “solely for sawed-off shotgun because it is a destructive device as
sporting, recreational, or cultural purposes,” 18 U.S.C. defined by Application Note 4 to U.S. Sentencing Guidelines
§ 921(a)(4) and 26 U.S.C. § 5845(f)(3), or, by necessary § 2K2.1.
inference, ones that have a bore of one-half inch or less in
No. 02-4354 United States v. Wynn 13
III. CONCLUSION
For all of the reasons set forth above, we AFFIRM the
judgment of the district court.