United States v. Brazeau, Warren J.

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-4093
United States of America,
Plaintiff-Appellee,
v.
Warren J. Brazeau,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 99 CR 66--Barbara B. Crabb, Judge.
Argued September 12, 2000--Decided January 17, 2001
Before Posner, Coffey, and Manion, Circuit Judges.
Manion, Circuit Judge. Warren Brazeau was
convicted of being a felon in possession of a
firearm and was sentenced to 33 months in prison.
Brazeau appeals his sentence, arguing that the
district court incorrectly set his base offense
level by wrongly treating a prior state
conviction for possession of a short-barreled
shotgun as a crime of violence. Because we agree
with the district court that possession of a
short-barreled shotgun constitutes a crime of
violence for purposes of the Sentencing
Guidelines, we affirm.
I. Background
In 1994, Warren Brazeau sold a confidential
informant a short-barreled shotgun in violation
of Wis. Stat. sec. 941.28(2), and for this
offense he was indicted in state court. On
September 7, 1995, Brazeau pleaded no contest,
received a two-year stayed sentence, and was
placed on probation for three years. His
probation ended on September 7, 1998.
A few months later, however, Brazeau was in
trouble with the law again: On November 24, 1998,
two county officers came to the apartment of Cari
Montag in Eagle River, Wisconsin to investigate
the possibility that drugs were being stored in
her apartment. She gave the officers permission
to search the premises. At that time, Brazeau was
staying at Montag’s apartment. The police did not
find any drugs, but they found a .44 Dan Wesson
handgun and two .44 Winchester cartridges.
Brazeau told the officers that he did not own the
handgun, but was keeping it for a friend who used
it for hunting. He also told the police that he
had been convicted of a felony in 1995 for
selling a short-barreled shotgun to an undercover
officer. At that time, the officers only
confiscated the weapon and ammunition, but
Brazeau was later arrested and charged with being
a felon in possession of a firearm and ammunition
in violation of 18 U.S.C. sec. 922(g).
Brazeau pleaded guilty, but reserved the right
to challenge issues concerning the calculation of
his sentence under the Sentencing Guidelines. The
district court then held a sentencing hearing. In
applying the Sentencing Guidelines, the district
court concluded that possession of a short-
barreled shotgun constituted a "crime of
violence" and therefore it assessed Brazeau’s
base offense level at 20. The district court then
enhanced his sentencing level by two points
because the firearm seized from Montag’s
residence was stolen, but the court lowered the
offense level by three because Brazeau had
accepted responsibility. Based on Brazeau’s
criminal history category, Brazeau’s guideline
range was 33-41 months. The district court
sentenced Brazeau to 33 months. Brazeau appeals
his sentence arguing only that his prior state
law conviction for possession of a short-barreled
shotgun is not a "crime of violence" under the
Sentencing Guidelines.
II. Analysis
Brazeau’s underlying conviction in this case was
for being a felon in possession of a firearm in
violation of 18 U.S.C. sec. 922(g). Under the
Sentencing Guidelines, the base offense level for
this offense is 20 if the defendant has a "prior
felony conviction which is either a crime of
violence or a controlled substance offense."
U.S.S.G. sec. 2K2.1(a)(4)(A). Commentary Note 5
explains that in determining whether the crime is
a "crime of violence," the court should look to
U.S.S.G. sec. 4B1.2. Section 4B1.2 in turn
defines a "crime of violence" as:
any offense under federal or state law punishable
by imprisonment for a term exceeding one year
that . . . is burglary of a dwelling, arson, or
extortion, involves use of explosives, or
otherwise involves conduct that presents a
serious potential risk of physical injury to
another.
U.S.S.G. sec. 4B1.2(a)(2).
The district court concluded that possession of
a short-barreled shotgun is a "crime of violence"
because it "involves conduct that presents a
serious potential risk of physical injury to
another." This is a legal determination which we
review de novo. United States v. Nelson, 143 F.3d
373, 374 (7th Cir. 1998).
To date, three circuits have held that
possession of a short-barreled shotgun, i.e. a
sawed-off shotgun, constitutes a crime of
violence. For instance, in United States v.
Hayes, 7 F.3d 144 (9th Cir. 1993), the Ninth
Circuit held that possession of a sawed-off
shotgun constitutes a crime of violence because
it presented a serious potential risk of physical
injury to another. In reaching this conclusion,
the Ninth Circuit reasoned that "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." Id.
at 145. Similarly, in United States v. Allegree,
175 F.3d 648 (8th Cir. 1999), the Eighth Circuit
held that possession of a sawed-off shotgun
qualified as a crime of violence "because such
weapons are inherently dangerous and lack
usefulness except for violent and criminal
purposes." Id. at 651. Thus, possession of a
sawed-off shotgun "involves conduct that presents
a serious potential risk of physical injury to
another." Id. Likewise, in United States v.
Fortes, 141 F.3d 1 (1st Cir. 1998), the First
Circuit held that possession of a sawed-off
shotgun was an offense that presents "a serious
potential risk of physical injury to another,"
id. at 7, and thus constitutes a "violent
felony."/1
Notwithstanding this precedent, Brazeau argues
that possession of a short-barreled shotgun is
not a crime of violence. In support of his
position, Brazeau cites to Application Note 1 to
Section 4B1.2 of the Sentencing Guidelines, which
provides that the offense of being a felon in
possession of a firearm is not a "crime of
violence." Brazeau contends that this
demonstrates that a possession crime is not a
"crime of violence." While the Guidelines
explicitly state that being a felon in possession
of a firearm is not a "crime of violence," in
this case Brazeau’s previous conviction was not
for being a "felon in possession of a firearm,"
but for "possession of a sawed-off shotgun."
Thus, Application Note 1 is inapplicable.
Moreover, as the Eighth Circuit recognized in
Allegree, "[t]he 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." Allegree, 175 F.3d at
651. We have also recognized in United States v.
Vahovick, 160 F.3d 395 (7th Cir. 1998), that the
mere possession of any weapon in a prison may
present a serious risk of injury to another, and
thus constitutes a "crime of violence." Id. at
397 ("[T]here is simply no acceptable use for a
weapon by an inmate in a prison for there always
exists in such possession the ’serious potential
risk of physical injury to another.’"). Thus, we
reject Brazeau’s contention that a possession
offense cannot constitute a crime of violence.
Rather, the question is whether the particular
possession of a firearm presents a "serious
potential risk of physical injury to another." We
agree with the Fifth, Eighth and Ninth Circuits
that in this case it does because possession of a
sawed-off shotgun--by the very nature of the
weapon--always creates a serious potential risk
of physical injury to another under the
Sentencing Guidelines.
Brazeau also argues that because a sawed-off
shotgun may be legally possessed in Wisconsin and
under federal law, it is not so inherently risky
that its mere possession constitutes a crime of
violence. While it is true that federal law
provides for the legal registration of sawed-off
shotguns, 26 U.S.C. sec. 5861(d), Brazeau’s
reliance on Section 5861 actually cuts against
his argument. Under Section 5861(d) "[o]nly those
firearms must be registered that Congress has
found to be inherently dangerous and generally
lacking usefulness, except for violent and
criminal purposes, such as sawed-off shotguns and
hand-grenades." Fortes, 141 F.3d at 6. Thus, "the
primary reason that unregistered possession of
these particular weapons is a crime is the
virtual inevitability that such possession will
result in violence." United States v. Jennings,
195 F.3d 795, 799 (5th Cir. 1999). See id. at
799, n.4, quoting S. Rep. No. 90-1501, at 28
(1968) (Congress expanded the scope of the
National Firearms Act to require registration of
certain "destructive devices (such as bazookas,
mortars, antitank guns, bombs, missiles, etc.,)
machine guns, short-barreled shotguns, and short-
barreled rifles [because they] are primarily
weapons of war and have no appropriate sporting
use or use for personal protection."). The point
is that most firearms do not have to be
registered--only those that Congress found to be
inherently dangerous. If the weapon is not so
labeled, mere possession by a felon is not a
crime of violence. See Fortes, 141 F.3d at 7.
Accordingly, contrary to Brazeau’s position, 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.
III. Conclusion
Under the Sentencing Guidelines, a crime is a
"crime of violence" if it "involves conduct that
presents a serious potential risk of physical
injury to another." Possession of a sawed-off
shotgun is just such a crime because, by its very
nature, a sawed-off shotgun always creates a
serious risk of physical injury to another.
Therefore, the district court properly set
Brazeau’s base offense level at 20. We AFFIRM.
/1 Fortes considered whether possession of a sawed-
off shotgun constitutes a "violent felony" within
the meaning of 18 U.S.C. sec.sec. 924(e)(1) and
924(e)(2)(B). However, because the definition of
a violent felony--conduct that presents a
serious potential risk of physical injury to
another--mirrors the definition of a "crime of
violence" under the Guidelines, Fortes is
persuasive.