United States v. Amos ( 2007 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 07a0302p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellant, -
UNITED STATES OF AMERICA,
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No. 06-5032
v.
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AUBREY SHANTE AMOS, -
Defendant-Appellee. -
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Appeal from the United States District Court
for the Middle District of Tennessee at Columbia.
No. 05-00006—William J. Haynes, Jr., District Judge.
Argued: January 31, 2007
Decided and Filed: August 9, 2007
Before: MARTIN, BATCHELDER, and McKEAGUE, Circuit Judges.
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COUNSEL
ARGUED: Paul M. O’Brien, ASSISTANT UNITED STATES ATTORNEY, Nashville, Tennessee,
for Appellant. C. Douglas Thoresen, FEDERAL PUBLIC DEFENDER’S OFFICE, Nashville,
Tennessee, for Appellee. ON BRIEF: Paul M. O’Brien, ASSISTANT UNITED STATES
ATTORNEY, Nashville, Tennessee, for Appellant. C. Douglas Thoresen, Michael C. Holley,
FEDERAL PUBLIC DEFENDER’S OFFICE, Nashville, Tennessee, for Appellee.
MARTIN, J., delivered the opinion of the court. BATCHELDER, J. (p. 7), delivered a
separate opinion concurring in the judgment. McKEAGUE, J. (pp. 8-11), delivered a separate
dissenting opinion.
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OPINION
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BOYCE F. MARTIN, JR., Circuit Judge. This case presents a single legal question of first
impression in this Circuit — whether a defendant’s prior conviction for possession of a sawed-off
shotgun can serve as a predicate “violent felony” for purposes of a sentencing enhancement under
the Armed Career Criminal Act. The district court held that it does not and for the following
reasons, we AFFIRM its decision.
1
No. 06-5032 United States v. Amos Page 2
I.
Defendant Aubrey Shante Amos was indicted for being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g). Amos pled guilty to the charge on August 5, 2005. The
government sought an enhanced sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e),
based on Amos’s three prior convictions for (1) reckless endangerment, (2) possession of a sawed-
off shotgun, and (3) possession of cocaine with intent to sell. At sentencing, defense counsel
conceded that the prior convictions for reckless endangerment and for cocaine possession were
predicate offenses under the ACCA, but challenged the use of the conviction for possession of a
sawed-off shotgun as a predicate offense. According to the government, this conviction met the
statutory definition of a violent felony because sawed-off shotguns must be registered under federal
law, are inherently dangerous and lack a useful purpose, and because their possession presents a
serious potential risk of injury to another. Defense counsel argued that mere possession of a firearm
cannot amount to a violent felony.
The district court rejected the government’s argument, and ruled that under the categorical
approach followed by the Sixth Circuit, a violation of the state statute in question could not amount
to a violent felony under the ACCA. The district court also noted that a Fifth Circuit case, United
States v. Diaz-Diaz, held that “possession of a short-barrel firearm is not a [18 U.S.C.] § 16(b)
‘crime of violence.’” 327 F.3d 410, 414 (5th Cir. 2003). As a result, the district court sentenced
Amos without the ACCA enhancement, which would have required a minimum 15 year (180 month)
sentence, and instead imposed a sentence of 120 months, followed by three years of supervised
release. The government brought the present appeal from the district court’s sentencing decision.
II.
We review de novo “a district court’s conclusion that a crime constitutes a violent felony
under the ACCA or a crime of violence under the ACCA’s parallel provision in the [Sentencing]
Guidelines.” United States v. Hargrove, 416 F.3d 486, 494 (6th Cir. 2005). “[I]t is the government’s
burden to prove that a defendant qualifies for the mandatory 15-year ACCA enhancement.” Id.
The ACCA provides for a mandatory minimum sentence of 15 years for a defendant who is
convicted of violating 18 U.S.C. § 922 (g), the felon in possession statute, and has three prior
convictions for a violent felony or a serious drug offense. 18 U.S.C. § 924 (e). The statute defines
violent felony as follows:
the term “violent felony” means any crime punishable by imprisonment for a term
exceeding one year, . . . that--
(i) has as an element the use, attempted use, or threatened use of physical force
against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves
conduct that presents a serious potential risk of physical injury to another;
18 U.S.C. § 924 (e)(2)(B). Because possession of a sawed-off shotgun is not one of the specifically
named offenses (burglary, arson, or extortion), and does not involve the use of explosives or the
threat of physical force against another person, it would only qualify as a predicate offense if it is
deemed to be “conduct that presents a serious potential risk of physical injury to another.”
The government relied on no information regarding this offense beyond the Tennessee
statute and the 1989 state court indictment as proof of the conduct associated with Amos’s predicate
offense. The relevant statute, Tenn. Code. Ann. § 39-6-1713, was apparently repealed in 1989, but
included language prohibiting the possession of “any weapon of the kind commonly known as a
sawed-off shotgun.” The indictment simply stated that Amos
No. 06-5032 United States v. Amos Page 3
did unlawfully and feloniously possess a weapon commonly known as a sawed-off
shotgun, the same being a shotgun having a barrel or barrels of less than eighteen
inches in length or a weapon made from a shotgun which as modified has an overall
length of less than twenty-six inches or a barrel or barrels of less than 18 inches in
length, in violation of section 39-6-1713 of the Tennessee Code Annotated, and
against the peace and dignity of the State of Tennessee.
The district court was correct that this Circuit requires use of the categorical approach, which
focuses on the fact of the prior conviction and the underlying statute in assessing prior felonies.
United States v. Montanez, 442 F.3d 485, 489 (6th Cir. 2006). Under this view, the language of the
indictment and other factual records of the conduct related to the predicate offense are only
considered if the language of the statute is not determinative. Id. The categorical approach therefore
functions to exclude facts from the district court’s consideration beyond the fact of the conviction
and the statutory definition of the offense in question. Id. at 489 (“Under the categorical approach,
it is not only impermissible, but pointless, for the court to look through to the defendant’s actual
criminal conduct. This approach avoids the subsequent evidentiary enquiries into the factual basis
for the earlier conviction.” (internal citations and quotation marks omitted)). Here, although the
government sought to introduce the language of the indictment, this language appears to have simply
traced the statutory prohibition without mentioning any additional facts regarding Amos’s criminal
conduct. As a result, the categorical approach is not irrelevant, but does not factor heavily into our
analysis.
Even so, it is worth noting that there is no showing that Amos did anything with the sawed-
off shotgun beyond merely possessing it, and the analysis of this crime as a violent felony question
focuses only on the language of the statute and the fact that he violated it. Further, as Amos points
out, the Court “must consider the least objectionable conduct that would violate this statute.” United
States v. Maness, 23 F.3d 1006, 1008 (6th Cir. 1994). Consequently, to qualify as a violent felony,
the possession of the gun would have to pose a serious potential risk to others even if Amos kept it
as a collector’s item or family heirloom, stored it in his attic, or used it to fend off groundhogs from
his garden.
In seeking reversal, the government relies on the weight of authority from other circuits,
noting that the First, Fourth, Fifth, Seventh, Eighth, and Ninth 1Circuits have all found that mere
possession of a sawed-off shotgun is either a “crime of violence” under the Sentencing Guidelines,
or a “violent felony” under the ACCA. See, e.g., United States v. Serna, 309 F.3d 859, 864 (5th Cir.
2002) (“[T]he unlawful possession a sawed-off shotgun under the Texas statute constitutes conduct
that, by its nature, poses a serious potential risk of physical injury to another and is therefore a crime
of violence.”); United States v. Brazeau, 237 F.3d 842, 845 (7th Cir. 2001) (“The fact that sawed-off
shotguns must be registered confirms our conclusion that such weapons are inherently dangerous,
and the possession of such a weapon constitutes a crime of violence.”); United States v. Hayes, 7
F.3d 144, 145 (9th Cir. 1993) (“sawed-off shotguns are inherently dangerous, lack usefulness except
for violent and criminal purposes and their possession involves the substantial risk of improper
physical force. These attributes led Congress to require registration of these weapons.”); see also
United States v. Johnson, 246 F.3d 330, 334-35 (4th Cir. 2001); United States v. Allegree, 175 F.3d
648, 651 (8th Cir. 1999); United States v. Fortes, 133 F.3d 157, 163 (1st Cir. 1998).
The government correctly points out that the Fifth Circuit decision in Diaz-Diaz, relied upon
by the district court and here again by Amos, involved a different statute, 18 U.S.C. § 16(b). The
1
The definition of crime of violence under the Sentencing Guidelines is very similar to that of a violent felony
under the ACCA, and, most significantly, it includes “conduct that presents a serious potential risk of physical injury
to another.” U.S.S.G. § 4B1.2(a); see Serna, 309 F.3d at 864 (“The ACCA employs identical language to define ‘violent
felony’ as the sentencing guidelines use to define ‘crime of violence.’”).
No. 06-5032 United States v. Amos Page 4
pertinent clause of section 16(b) includes within the crime of violence definition “any other offense
that is a felony and that, by its nature, involves a substantial risk that physical force against the
person or property of another may be used in the course of committing the offense.” The clause
“used in the course of committing the offense,” which does not appear in the ACCA, narrows the
section 16(b) definition and distinguishes it from that in the ACCA. The district court was therefore
incorrect in its observation that Diaz-Diaz was indicative of a split of authority on the issue here.
The government’s position is confirmed by the Fifth Circuit’s decision in Serna, where it found
possession of a sawed-off shotgun to be a crime of violence under the Sentencing Guidelines, which
unlike section 16(b) use almost identical language to that of the ACCA. It would therefore appear
that every federal Court of Appeals that has addressed the question has held that possession of a
sawed-off shotgun is either a predicate violent felony under the ACCA, or, similarly, a crime of
violence under the Sentencing Guidelines.
Relying primarily on the plain language of the statute, Amos argues that all of the cases cited
by the government were wrongly decided. He points to a number of decisions holding that a prior
violation of the felon-in-possession statute itself was not a predicate offense under the ACCA. For
example, in an opinion authored by then-Chief Judge Breyer, the First Circuit provided the
following in-depth reasoning in excluding the felon-in-possession offense from the definition of
violent felonies under the ACCA, which would appear to apply with equal force to possession of a
sawed-off shotgun:
Several considerations ultimately convince us that this language does not cover the
felon-in-possession crime. First, simple possession of a firearm does not fit easily
within the literal language of the statute. The statute gives several specific examples
— burglary, arson, extortion, use of explosives — and then adds, “or otherwise
involves conduct that presents a serious potential risk of physical injury to another.”
One can easily imagine a significant likelihood that physical harm will often
accompany the very conduct that normally constitutes, say, burglary or arson. It is
much harder, however, to imagine such a risk of physical harm often accompanying
the conduct that normally constitutes firearm possession, for simple possession, even
by a felon, takes place in a variety of ways (e.g., in a closet, in a storeroom, in a car,
in a pocket) many, perhaps most, of which do not involve likely accompanying violence.
Second, to read the statute less narrowly, in order to cover firearm possession, would
also bring within the statute’s scope a host of other crimes that do not seem to belong
there. To include possession, one would have to focus upon the risk of direct future
harm that present conduct poses. But, how could one then exclude, say, drunken
driving or unlawful transportation of hazardous chemicals or other risk-creating
crimes very unlike the burglary, arson, extortion, and explosives use that the statute
mentions? There is no reason to believe that Congress meant to enhance sentences
based on, say, proof of drunken driving convictions. Rather, we must read the
definition in light of the term to be defined, “violent felony,” which calls to mind a
tradition of crimes that involve the possibility of more closely related, active
violence.
United States v. Doe, 960 F.2d 221, 224-225 (1st Cir. 1992). According to Amos, the same rationale
governs the crime of possession of a sawed-off shotgun, which like the felon-in-possession statute
attempts to prevent future risks of violence, but does not itself apply to a crime that carries with it
a risk of violence.
We believe that Amos has the better argument in light of the language of the statute. The
crime of possessing a sawed-off shotgun is similar to the prohibition of felons possessing firearms,
as both prohibit mere possession. As the Doe Court convincingly argued, possession does not fit
No. 06-5032 United States v. Amos Page 5
well with the more active crimes included in the statute. Further, our precedent requires us to
consider the “least objectionable” conduct that would violate the statute. See Maness, 23 F.3d at
1008. Although many instances of sawed-off shotgun possession create a greater risk of harm to
others, particularly if the weapon is fired or brandished, the same cannot be said for all instances of
possession, such as where it is stored unloaded in an attic or the trunk of a car.
Two recent opinions in our circuit have employed similar reasoning in concluding that a
prior conviction for a different offense involving weapons possession did not amount to a violent
felony under section 924(e). See United States v. Flores, 477 F.3d 431 (6th Cir. 2007); United
States v. Alexander, 2007 U.S. App. LEXIS 2964 (6th Cir. Feb. 9, 2007). Both cases involved the
predicate offense of carrying a concealed weapon in violation of Michigan law, and determined that
violations of this law did not involve a serious potential risk of physical injury to another.2 The
Flores panel noted that the crimes that are explicitly listed in section 924(e) “involve[] affirmative
and active conduct that is not inherent in the crime of carrying a concealed weapon.” 477 F.3d at
436. It also noted that Michigan actually allows individuals to carry concealed weapons, provided
they maintain the proper license, rendering it difficult to conclude that the same conduct presents
a serious risk of physical injury simply because it was done without a license. Id. at 438.
Additionally, it found support for its conclusion in the treatment of the felon-in-possession statute,
which other circuits had found not to be a violent felony under section 924(e), and which we had
found to not amount to a crime of violence in a different context. Id. at 436-37 (citing Orr v. Hawk,
156 F.3d 651, 652 (6th Cir. 1998)). The Alexander panel relied on similar reasoning in reaching the
same conclusion. See 2007 U.S. App. LEXIS 2964, at *10-13.
The rationale employed in these decisions similarly supports the conclusion that possession
of a sawed-off shotgun does not constitute a violent felony. Carrying a concealed weapon comes
closer to presenting a risk of physical injury to another as the gun must be on the defendant’s person,
unlike possession of a sawed-off shotgun, a crime of which a defendant can be convicted for keeping
an unloaded weapon locked or hidden in his attic or basement. As the Alexander and Flores panels
pointed out, if possession of a sawed-off shotgun were so dangerous in all instances in and of itself,
federal law would prohibit the weapons altogether, rather than allowing their possession if they are
registered. We disagree with those circuits that have concluded that the registration requirement
answers this question. After all, registration is clearly less of a limitation on possession than the full
prohibition that applies to felons who would seek to possess any firearm, and the felon in possession
statute has been rejected as a predicate felony under ACCA. See Doe, 960 F.2d at 224-225. Nor
are we convinced that the potential for future dangerousness or the lack of a legitimate use for
sawed-off shotguns that other circuits have pointed to renders their possession a violent felony. As
with any gun, shooting a sawed-off shotgun can obviously create a serious risk of physical harm to
another, but the same can hardly be said for their mere possession.
All of our nation’s gun control laws are serious and are intended to promote the safety of our
citizenry. We therefore in no way make light of the sentencing implications of criminal violations
for gun possession by referring to the conduct in question as “mere possession.” Nevertheless, as
Flores and Alexander instruct us, the important goals behind statutes directed at gun possession do
not automatically convert violations of their requirements into “crimes of violence.” Further, if
Congress had wanted the ACCA to cover offenses for possession of firearms as predicate offenses,
it could easily have done so explicitly (i.e., the definition of violent felony could have included
“possession of a firearm in violation of state or federal law”). Although we consider this a close
2
Both Alexander and Flores provide thorough reasoning with regard to the violent felony analysis. Alexander
affirmed the ACCA enhancement, despite concluding that possession of a concealed weapon is not a violent felony,
because the defendant did not object to the enhancement at sentencing, and under the deferential plain error standard of
review and the lack of existing precedent on the issue, the district court’s contrary conclusion was not plain error.
Because Flores is a published opinion and did not involve plain error, we rely upon its holding primarily.
No. 06-5032 United States v. Amos Page 6
question in light of the reasoning of our sister circuits, the plain language of the statute evinces an
intent to include only offenses with more assertive, violent conduct than mere possession, just like
the felon-in-possession statute addressed in Doe.
We agree with the district court’s conclusion that a prior conviction for possession of a
sawed-off shotgun does not amount to a violent felony under section 924(e), and AFFIRM its
decision accordingly.
No. 06-5032 United States v. Amos Page 7
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CONCURRING IN THE JUDGMENT
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ALICE M. BATCHELDER, Circuit Judge, concurring. I concur in the majority’s judgment
and reasoning, and write separately merely to note an additional basis for my concurrence. In a case
that post-dates most of the precedent relied upon by our sister circuits, Leocal v. Ashcroft, the
Supreme Court concluded that driving under the influence is not a crime of violence, reasoning:
In construing both parts of [18 U.S.C.] § 16, we cannot forget that we ultimately are
determining the meaning of the term ‘crime of violence.’ The ordinary meaning of
this term, combined with § 16’s emphasis on the use of physical force against
another person (or the risk of having to use such force in committing a crime),
suggests a category of violent, active crimes that cannot be said naturally to include
DUI offenses. Cf. United States v. Doe, 960 F.2d 221, 225 (C.A.1 1992) (Breyer,
C.J.) (observing that the term ‘violent felony’ in 18 U.S.C. § 924(e) ‘calls to mind
a tradition of crimes that involve the possibility of more closely related, active
violence’). Interpreting § 16 to encompass accidental or negligent conduct would
blur the distinction between the ‘violent’ crimes Congress sought to distinguish for
heightened punishment and other crimes.
Leocal v. Ashcroft, 543 U.S. 1, 11 (2004).
I recognize, as does the lead opinion, that 18 U.S.C. § 16 — the statute construed in Leocal
— is not identical to the statute at issue here. But if we ignore for a moment the weight of our sister
circuits’ precedent, which fortifies the government’s position, and instead consider anew the
reasoning behind that precedent — as the Supreme Court will do when faced with this issue — it
is clear that the same arguments against possession of a sawed-off shotgun could be applied to
driving under the influence. In fact, it appears likely that the act of driving under the influence
would be more likely to “involve[] conduct that presents a serious potential risk of physical injury
to another,” than would the mere possession of a sawed-off shotgun. See Leocal, 543 U.S. at 11
(DUI is not a crime of violence); see also United States v. Fish, 368 F.3d 1200 (9th Cir. 2004)
(possession of a pipe bomb is not a crime of violence); United States v. Oliver, 20 F.3d 415 (11th
Cir. 1994) (possession of explosives is not a violent felony).
No. 06-5032 United States v. Amos Page 8
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DISSENT
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McKEAGUE, Circuit Judge, dissenting. Congress has concluded that, as a matter of national
policy, the possession of a sawed-off shotgun is inherently dangerous conduct. A defendant’s
unlawful possession of this type of weapon constitutes, in my opinion, “conduct that presents a
serious potential risk of physical injury to another” under the Armed Career Criminal Act (the
“ACCA”). 18 U.S.C. § 924(e)(2)(B)(ii). The United States Sentencing Commission (the
“Commission”) has similarly concluded, as have six of our sister circuits. Carrying a concealed-
firearm is markedly different conduct, as that conduct can have several peaceful and beneficial
aspects. Accordingly, I am not persuaded by the majority’s reliance on United States v. Flores, 477
F.3d 431, 435-36 (6th Cir. 2007), a concealed-firearm case. Nor am I persuaded by the concurring
opinion’s discussion of Leocal v. Ashcroft, 543 U.S. 1 (2004), a drunk-driving case brought under
an unrelated statute. For these reasons, I respectfully dissent.
Under the National Firearms Act, Act of June 26, 1934, Ch. 757, 48 Stat. 1236 (codified at
26 U.S.C. §§ 5801-5872), Congress placed strict controls over the manufacture and transfer of all
sawed-off shotguns, machineguns, silencers, grenades, and other “gangster-type weapons.” Conf.
Rep. 90-1956, 1968 U.S.C.C.A.N. 4426, at 4434. It did so because of its “specific declaration and
finding that” these and other “destructive devices (such as bazookas, mortars, antitank guns, bombs,
missiles, etc.,) . . . are primarily weapons of war and have no appropriate sporting use or use for
personal protection.” United States v. Jennings, 195 F.3d 795, 799 n.4 (5th Cir. 1999) (quoting S.
Rep. No. 90-1501, at 28 (1968)). While handguns and other generic firearms are not subject to the
Act’s stringent controls, those weapons that Congress has deemed especially dangerous—including
sawed-off shotguns—are subject to the Act. United States v. Brazeau, 237 F.3d 842, 845 (7th Cir.
2001) (“The point is that most firearms do not have to be registered—only those that Congress found
to be inherently dangerous.”).
It should go without saying that unlawfully possessing one of these “gangster-type”
“weapons of war” creates a serious potential risk of physical injury. In comparison to a regular
shotgun, a sawed-off shotgun is generally less, not more, accurate and has a lower range—both of
which are presumably considered drawbacks by most gun enthusiasts. However, what it lacks in
accuracy and range, it more than makes up for in concealment and maneuverability. With its shorter
barrel, a sawed-off shotgun can be concealed under a large shirt or coat. It is the combination of
low, somewhat indiscriminate accuracy, large destructive power, and the ability to conceal that
makes a sawed-off shotgun useful for only violence against another person, rather than, for example,
against sport game.
The potential risk for physical injury is magnified when a person unlawfully possesses a
sawed-off shotgun or another one of these weapons. By doing so, that person has evinced an
obvious disregard for federal and, in some cases, state law (here, Tennessee)—never a good sign
when that disregard is manifested by the act of possessing a “gangster-type weapon.”
Other authorities have arrived at the same conclusion. In interpreting a “crime of violence”
under U.S.S.G. § 4B1.2 (which is nearly identical to the ACCA’s definition of “violent felony”), the
Commission explained, “Unlawfully possessing a firearm described in 26 U.S.C. § 5845(a) (e.g.,
a sawed-off shotgun or sawed-off rifle, silencer, bomb, or machine gun) is a ‘crime of violence.’”
U.S.S.G. § 4B1.2 cmt. n.1. I agree with the First Circuit’s statement in United States v. Doe, 960
F.2d 221, 225 (1st Cir. 1992), that courts should give considerable weight to the views of the
Commission in this context: “The Commission, which collects detailed sentencing data on virtually
every federal criminal case, is better able than any individual court to make an informed judgment
No. 06-5032 United States v. Amos Page 9
about the relation between” a particular activity “and the likelihood of accompanying violence.” See
also Stinson v. United States, 508 U.S. 36, 38 (1993) (Guidelines commentary “that interprets or
explains a guideline is authoritative unless it violates the Constitution or a federal statute, or is
inconsistent with, or a plainly erroneous reading of, that guideline.”). How a subsequent panel of
this court will square the circle created by the majority’s interpretation of the ACCA against the
Commission’s commentary to § 4B1.2 remains to be seen.
Likewise, as the majority notes, six of our sister circuits have concluded that possession of
a sawed-off shotgun constitutes either a violent felony under the ACCA or a crime of violence under
the Guidelines. As the Ninth Circuit explained in United States v. Hayes, 7 F.3d 144, 145 (9th Cir.
1993), “sawed-off shotguns are inherently dangerous, lack usefulness except for violent and criminal
purposes and their possession involves the substantial risk of improper physical force.” To my
knowledge, none of the other circuits have held otherwise.
The majority attempts to counter these considerations. First, following the First Circuit, the
majority contends that “possession does not fit well with the more active crimes included in the
statute.” Maj. Op. at 5. Yet, that court has since rejected this rationale in the context of the
inherently dangerous weapons identified by Congress in § 26 U.S.C. § 5845(a). In United States
v. Fortes, 133 F.3d 157, 162 (1st Cir. 1998), the First Circuit recognized a “reasonable—indeed very
substantial—difference between possession of a generic ‘firearm’ and possession of one of the
specialized weapons singled-out for particularized treatment” by Congress. The court found that
for the latter category of weapons, mere possession “involved a blatant disregard for the law and a
substantial risk of improper physical force.” Id. at 163 (quoting United States v. Huffhines, 967 F.2d
314, 321 (9th Cir. 1992)). I agree—when the weapon possessed is extremely dangerous with few,
if any, defensive or sporting uses, I would find that mere possession of it creates a serious potential
risk of injury.
The majority also relies upon United States v. Maness, 23 F.3d 1006, 1008 (6th Cir. 1994),
for the proposition that we must consider the “least objectionable conduct” that would violate the
statute. I do not read the holding in Maness nearly that broadly. Under the categorical approach
required by Taylor v. United States, 495 U.S. 575, 600 (1990), we cannot consider all of the myriad
facts and circumstances of an underlying conviction, but only the statutory definitions of the prior
offenses and other limited matters. See Shepard v. United States, 544 U.S. 13, 16 (2005) (explaining
that, under Taylor, “a later court determining the character of a [prior crime for purposes of the
ACCA] is generally limited to examining the statutory definition, charging document, written plea
agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which
the defendant assented”). Thus, it should be completely irrelevant for our purposes whether
someone possessed a sawed-off shotgun for the presumptively benign purpose of displaying it in his
living room. Cf. Maness, 23 F.3d at 1010 (Ryan, J., concurring). In any event, where Congress has
explicitly identified a class of weapons as inherently dangerous, I do not see the import of the fact
that those weapons could, in some circumstances, have non-violent uses. Just as one could possess
a sawed-off shotgun as a family heirloom or use it to fend off groundhogs, Maj. Op. at 3, one could
use a grenade launcher to shoo away a pesky woodpecker, possess a silencer as a paperweight, or
use a blackjack to crack open walnuts. Such secondary uses do not detract from the fact that these
devices are primarily designed for dangerous, criminal or war-like purposes. See, e.g., United States
v. Canon, 993 F.2d 1439, 1441 (9th Cir. 1993) (“Because possession of a sap [a.k.a., a blackjack or
bludgeon] is ‘presumptive evidence of unlawful violent intentions’ and necessarily entails a ‘serious
potential risk of physical injury to another,’ this felony conviction also qualifies” under the ACCA);
Huffhines, 967 F.2d at 321 (“Like a sawed-off shotgun and other firearms of the kind enumerated
in [§ 5845(a)], a silencer is practically of no use except for a criminal purpose.”).
Finally, the majority draws support from Flores, 477 F.3d at 435-36, where the court held
that carrying a concealed weapon in violation of Michigan law is not a violent felony under the
No. 06-5032 United States v. Amos Page 10
ACCA. Flores and similar decisions outside the circuit are, however, distinguishable. First and
foremost, Congress has not deemed it necessary to place stringent restrictions on the possession of
all handguns and other firearms. While some states have gone farther than Congress in this regard,
other states have not. Thus, unlike with sawed-off shotguns and the other weapons identified in
§ 5845(a), there is no national consensus (as voiced by Congress) that all handguns and other
firearms are inherently dangerous. Ordinary citizens cannot get carry permits for sawed-off
shotguns, machineguns, or grenades in most jurisdictions. See, e.g., M.C.L. §§ 750.224(1)(a),
750.224b(1) (Michigan); T.C. §§ 39-17-1302, 39-17-1307 (Tennessee).
Likewise, the Commission and other circuits have distinguished between convictions
involving possession of a generic firearm and convictions for possession of weapons identified in
§ 5845(a). The former do not count as crimes of violence or violent felonies, while the latter do.
Compare Doe, 960 F.2d at 225 (First Circuit, holding that possession of a firearm by a felon was not
a violent felony under the ACCA), with Fortes, 133 F.3d at 163 (First Circuit, holding that
possession of a sawed-off shotgun was a violent felony under the ACCA); see also U.S.S.G. § 4B1.2
cmt. n.1 (“‘Crime of violence’ does not include the offense of unlawful possession of a firearm by
a felon, unless the possession was of a firearm described in 26 U.S.C. § 5845(a).”); United States
v. Allegree, 175 F.3d 648, 651 (8th Cir. 1999) (“The reason [the defendant’s] conviction for
possession of [a sawed-off shotgun] counts as a crime of violence is because of the type of weapon
involved. This distinguishes his offense from simple possession of a firearm by a felon.”).
The concurring opinion’s discussion of Leocal is equally unconvincing. The Supreme Court
in Leocal held that a conviction for driving under the influence (a “DUI”) was not a “crime of
violence” under 18 U.S.C. § 16. 543 U.S. at 10. As the Court explained, and the concurring opinion
recognizes, § 16 differs from both the ACCA and the U.S.S.G. § 4B1.2. The Court discussed at
length the meaning and importance of the word “use” in § 16(a), and the phrase “may be used in the
course of committing the offense” in § 16(b), neither of which appear in the ACCA or U.S.S.G. A
DUI, the Court held, did not fall under § 16(a) because “[t]he key phrase in § 16(a)—the ‘use . . .
of physical force against the person or property of another’—most naturally suggests a higher degree
of intent than negligent or merely accidental conduct.” Leocal, 543 U.S. at 9. And it did not fall
under § 16(b) because “[t]he reckless disregard in § 16[b] relates not to the general conduct or to the
possibility that harm will result from a person’s conduct, but to the risk that the use of physical force
against another might be required in committing a crime.” Id. at 10 (emphasis in original). The
concurring opinion may be correct that the same reasoning might be applied to possession of a
sawed-off shotgun to achieve the same result under § 16, but a different analysis is clearly required
under either the ACCA or the Guidelines, as the Court itself alluded to:
16(b) plainly does not encompass all offenses which create a “substantial risk” that
injury will result from a person’s conduct. The “substantial risk” in § 16(b) relates
to the use of force, not to the possible effect of a person’s conduct. Compare § 16(b)
(requiring a “substantial risk that physical force against the person or property of
another may be used”) with United States Sentencing Commission, Guidelines
Manual § 4B1.2(a)(2) (Nov. 2003) (in the context of a career-offender sentencing
enhancement, defining “crime of violence” as meaning, inter alia, “conduct that
presents a serious potential risk of physical injury to another”). The risk that an
accident may occur when an individual drives while intoxicated is simply not the
same thing as the risk that the individual may “use” physical force against another
in committing the DUI offense.
Id. at 10 n.7. Given the differences in language between § 16 and the ACCA, I find the analysis of
Leocal inapplicable to the present case.
No. 06-5032 United States v. Amos Page 11
In sum, certain weapons are so dangerous and offer so little in terms of protection or sport
that the mere possession of them “presents a serious potential risk of physical injury to others.” As
Congress, the Commission, and several of our sister circuits have concluded, sawed-off shotguns
fall into that category. I agree with these authorities, and, therefore, respectfully dissent.