UNITED STATES of America, Plaintiff-Appellant, v. Aubrey Shante AMOS, Defendant-Appellee.
No. 06-5032.
United States Court of Appeals, Sixth Circuit.
Decided and Filed: Aug. 9, 2007.
Rehearing and Rehearing En Banc Denied Dec. 17, 2007.
501 F.3d 524
Argued: Jan. 31, 2007.
For the reasons stated above, we AFFIRM in part, REVERSE in part, and REMAND for further proceedings consistent with this opinion.
Argued: Jan. 31, 2007.
Decided and Filed: Aug. 9, 2007.
Rehearing and Rehearing En Banc Denied Dec. 17, 2007.*
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.
Before: MARTIN, BATCHELDER, and McKEAGUE, Circuit Judges.
MARTIN, J., delivered the opinion of the court. BATCHELDER, J. (p. 530), delivered a separate opinion concurring in the judgment. McKEAGUE, J. (pp. 530-34), delivered a separate dissenting opinion.
OPINION
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
I.
Defendant Aubrey Shante Amos was indicted for being a felon in possession of a firearm in violation of
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, 327 F.3d 410, 414 (5th Cir.2003), held that “possession of a short-barrel firearm is not a [
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
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;
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,
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
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 Circuits have all found that mere possession of a sawed-off shotgun is either a “crime of violence”1 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,
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 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
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
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,
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
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’ in18 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, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004).
I recognize, as does the lead opinion, that
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 seri-
Under the
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
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
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
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
Likewise, the Commission and other circuits have distinguished between convictions involving possession of a generic firearm and convictions for possession of weapons identified in
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
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
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.