United States v. Amos , 501 F.3d 524 ( 2007 )

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, 125 S.Ct. 377, 160 L.Ed.2d 271 (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, machine guns, 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 unlaiufully 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 about the relation between” a particular activity “and the likelihood of accompanying violence.” See also Stinson v. United States, 508 U.S. 36, 38, 113 S.Ct. 1913, 123 L.Ed.2d 598 (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 528. 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, 110 S.Ct. 2143, 109 L.Ed.2d 607 (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, 125 S.Ct. 1254, 161 L.Ed.2d 205 (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 nonviolent uses. Just as one could possess a sawed-off shotgun as a family heirloom or use it to fend off groundhogs, Maj. Op. at 526-27, 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 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(l)(a), 750.224b(l) (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 concuiring 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, 125 S.Ct. 377. 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, 125 S.Ct. 377. 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, 125 S.Ct. 377 (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. Comjpre § 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, 125 S.Ct. 377 n. 7. Given the differences in language between § 16 and the ACCA, I find the analysis of Leocal inapplicable to the present case.

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.