United States v. Eddie Lipscomb

apply not did offender enhancement career STEWART, KING, and Before JOLLY was not him, the instant offense to because Judges. Circuit he Specifically, ar- a of violence. JOLLY, Judge: Circuit E. GRADY as categorical method set gued that States, 495 U.S. Taylor forth in v. United appeals his Lipscomb Lamont Eddie L.Ed.2d 607 under U.S.S.G. enhancement sentence (1990), prevented the sen- progeny and conviction his instant arguing § considering how the court from tencing as a felon a possessing for Although crime. committed the defendant a qualify as § does not 922(g) 18 U.S.C. indictment, was, in the alleged as gun Lipscomb Because of violence. was not shotgun, conviction a sawed-off his indictment single-count to pleaded guilty a violence, argues, because crime of he for a a possessing him with expressly charging requiring proof of has no element 922(g) violence, we shotgun, a Furthermore, type gun. specific a affirm. relied on testimo- improperly court district who described the ny police a officer from I. shotgun. weapon as a sawed-off single- pleaded guilty The district court concluded pos- charging him with count indictment a crime of violence felon, conviction was 922(g) U.S.C. see 18 a firearm as sessing provisions offender the career armed and that him as an 922(g), charging and did, court 924(e). district applied. 4B1.1 The criminal, indict- The see career foreign commerce affecting interstate and indictment read: firearm, Harrington wit: a and Richard- aof Firearm Felon in Possession son, shotgun, bearing gauge model (Violation and 922(g)(1) BA490014, having as modified number serial 924(e)(1)) length, than 18 inches 20, 2007, of less barrel Dallas On or about March inches, weap- Texas, length of less than overall District of of the Northern Division defendant, commonly shot- known "sawed-off” on having Lipscomb, Lamont Eddie gun. punishable being a crime [sic] convicted 922(g)(1) §§ violation of 18 exceeding year, imprisonment a term one 924(e)(1). unlawfully in and knowingly possess did however, grant variance, prisonment for a term exceeding year, Lipscomb to 240 in prison months and five ... otherwise involves conduct that years of supervised release. When presents asked a serious potential risk physi by the government whether it give injury would cal 4B1.2(a)(2).2 another.” To same sentence 4B1.1 had not ap- determine whether a crime is a crime of plied, the district replied violence, court it we consider only “conduct ‘set want reconsider its forth in sentеnce if the count of which the defendant ” the enhancement did apply. convicted,’ not Lipscomb was but any consider timely appealed. other evidence to determine the conduct

underlying the instant offense. II. States v. Fitzhugh, (5th 954 F.2d Cir.1992) (quoting U.S.S.G. Appli 4B1.2 “Characterizing an offense as a 1). cation Note Therefore, the district crime of violence is a purely legal determi court erred considering testimony as to nation,” which we de review novo. United weapon’s relevant, characteristics to be Cisneros-Gutierrez, States v. 517 F.3d but the error was harmless. As noted (5th Cir.2008); United States v. Gue above, Lipscomb’s single-count indictment, vara, 408 F.3d 261 n. 10 Cir. which the district court consider, could 2005). alleges that possessed he a sawed-off shot Turning case, to this the Sentencing gun. only The remaining question is call Guidelines for an enhanced sentence possessing whether such a weapon, “by its who, for defendants like the defendant nature, presented a potential serious risk (1) here, are at eighteen years least old at of physical injury.” United States v. In conviction, time of the (2) instant are saulgarat, Cir.2004). currently being sentenced for a crime of We think that the Sentencing Commis violence or a оffense, controlled substance sion’s commentary §to 4B1.2 answers that (3) and have at least two convictions for us. Stinson v. United for either crimes of violence or controlled 36, 44-45, 123 L.Ed.2d 598 4Bl.l(a). substance offenses. U.S.S.G. (1993) (holding that commentary to the Lipscomb acknowledges that he cri- meets guidelines is “treated an agency’s inter (1) (3). teria The question in this case pretation rule”).3 of its own legislative is Lipscomb’s instant conviction is “Unlawfully possessing a firearm de a crime of violence. (ie., 5845(a) in 26 scribed For our purposes today, a ...) shotgun is a crime of vio is a crime of violence if it is an “offense lence.” U.S.S.G. Application 4B1.2 Note law, under federal ... punishable im- l.4 Accordingly, as specific per allega 1.2(a) provides, 4B 2.Section in full: potential physical serious injury risk of another. The term “crime any of violence” means law, 3. party challenges offense under Neither punisha- Sentencing federal or state Commission’s by imprisonment ble classification of the for a offense. exceeding term year, that— Specifically, weapon weapon must be "a (1) use, has as an attempted element made from a weapon if such as modi- use, or physical threatened use force fied length has overall of less than 26 against another, person or or a inches barrel or barrels of less than 18 arson, burglary is dwelling, of a ex- or length,” inches which are the characteris- tortion, explosives, involves use of oth- alleged tics in the indictment. erwise involves presents conduct 5845(a)(2). even mention —the application of—or his indictment tions commentary issue Guidelines Lipscomb’s specific charges, those guilty applies commentary, which of vio a crime here. for 922(g) conviction pos- treats unlawful case, specifically this lence. aas by a felon session otherwise, assert Lipscomb argues a sawed-off weapon of violence when analysis ing applying stan- proposed Lipscomb’s shotgun. only required 922(g) conviction his here, render dard, applied if pos that he prove government 922(g) of- meaningless commentary reject We more. gun nothing sessed — Sentencing not think the doWe fenses. apply must that we argument commentary to its intended Commission by the crafted Moreover, had the an effect. such have progeny.5 its Taylor Supreme Court the sen- intended Sentencing Commission require the a rule would Such by the statute bound tencing court be only to deter the indictment to use court Application conviction, its reference is the basis statutory phrase mine (ie., forth set 1 to the “conduct Note his convic Thus, argues, he of conviction. of which the in count charged) expressly “firearm,” as possessing for only is tion be would convicted” was the defendant is conviction his proscribes; the statute added). (emphasis See id. superfluous. as shotgun, sawed-off possessing not commentary Thus, the applying This charges. language the indictment’s must, that this we 4B1.2, we hold Taylor fact that the ignores argument to an conviction, plea from a resulting Armed the under decided were progeny its charged specifically count that not involve indictment and did Act Criminal Career in Guevara merely The issue dicta. was ment addressing a under sentence Today arewe cases, pre-Boo/cer crime-of-violence have, whether used in We some the Guidelines. 1.2(a) the § 4B violated under as a determination Act case law Career Criminal Armed the rights allow- un- defendant's Sixth Amendment a crime of violence ''guide” determine to jury, find facts 4B1.2, judge, to ing not the in a situation when the but never der It is true that with his sеntence. appeared to be inconsistent enhanced case law 4B1.2(a)(l) binding com- or would neither Sentencing said Commission's court Mohr, only See, problems, 554 but e.g., Stales Amendment mentary. cause Sixth Cir.2009) Begay 1.2(a)(1) to 604, (5th (using necessary analysis of 4B 608-10 its 1581, 137, States, S.Ct. whether holding. considered The court v. United (2008), only interpret the kinds under a crime violence 170 L.Ed.2d crime was opinion "otherwise” 1.2(a)(1), no qualified "expressing] of crimes 4B clause). limiting courts qualify district rule Our it Therefore, comes charged 1.2(a)(2).” in the indictment at 259. Gue- the conduct § 4B 1.2(a)(2) commen- Sentencing Commission's was unnec- 4B from on comment varas Act Criminal Career tary, disposition. the Armed Calderon- not essary to the case's cited, Fitzhugh, F.2d at 254. Pena, a differ- cases. involved which Guevara 2L1.2, only which considers guideline, ent Guevara, in which also invokes It offenses. of unenumerated the elements sentencing court stated that the court clause, is at issue which a residual has neither beyond "anything what not consider could commentary. here, See supplemental nor alleged in the indict- present the statute is, 1. It Application Note § 2L1.2 convict, U.S.S.G. therefore, which, ment, as to elements deciding the issue helpful beyond a reа- evidence jury must have found Parenthetically, we also note before us. any to find event” doubt in sonable in which a conviction Guevara dealt violence under a crime of offense instant finder, we are here whereas fact jury was the 1.2(a)(2). (citing United at 262 408 F.3d § 4B through dealing with facts admitted Calderon-Pena, 383 F.3d curiam)). guilty. (en banc) Cir.2004) (per That state- possession of a sawed-off shotgun as a no error in making that determination felon, is for a violence. through a finding factual at sentencing. In reaching his conclusion that a felon-

III. in-possession conviction is not a crime of violence under 4B1.2(a)(2), Judge Stew To recap, hold we that for the purpose art applies approach out §of a conviction is for a crime of lined in Taylor v. United violence when U.S. pleads defendant guilty 109 L.Ed.2d to an indictment count that alleges conduct (1990), and its progeny. presents Under that ap potential serious risk of proach, a sentencing court injury to “look only another. Lipscomb, in pleading to the fact of conviction to an guilty statutory charging indictment him with definition of offense,” the ... violating id. at 922(g) by possessing that, except violence, “whenever a —a provides statute according to list of commentary— Guidelines alternative meth ods just [,] did that. ... judgment commission we may look district charging papers court is to see which of the vari ous statutory alternatives are involved AFFIRMED. the particular case,” United States v. Cal deron-Pena, Cir. KING, Judge, Circuit concurring 2004) (en banc) curiam). (per In making judgment: this determination where the conviction I agree with Judge Jolly Lips- that by reached plea, “we may consider the (his comb’s offense of conviction instant statement of factual basis for charge, offense) being a possession, felon in in transcript of plea or colloquy written — violation § of 18 U.S.C. 922(g)(1) plea agreement, or a record of comparable —was violence,” “crime of by as defined findings U.S.S.G. adopted by fact the defendant 4B1.2(a)(2). § Accordingly, I concur upon in entering regarding the ... judgment affirming his sentence. Mohr, offense[].” United States v. However, I write separately for (5th Cir.2009) two rea- F.3d (citing Shep First, sons. I write to clarify my agree- States, ard v. 13, 20, United ment with Judge Jolly that an elements- (2005)). 161 L.Ed.2d 205 Be based approach inappropri- is § cause 18 922(g)(1) U.S.C. forbids a felon ate Second, here. explain I my disagree- such as Lipscomb from pоssessing any ment with my colleagues’ firearm, determination there is no “statutory alterna that the district court erred when it made forbidding only tive[ ]” possession of a a post-plea factual finding to determine sawed-off shotgun as described gun Lipscomb possessed 5845(a)(l)-(2). was a § U.S.C. Accordingly, un sawed-off shotgun as described in 26 der Judge view, Stewart’s there is no ele 5845(a).1 § U.S.C. my Unlike colleagues, I § ment of a 922(g)(1) offense presents conclude that the district court committed physical serious risk another, injury to category 1. This weapon is defined to in- than length.” 18 inches in "(1) shotgun clude having a barrel or bar- 5845(a)(l)-(2). weapon Lipscomb pos- rels of less length; than 18 inches in [and] criteria; sessed these satisfied the issue is weapon shotgun made from a weap- if such whether properly district court deter- on as modified length has an overall of less mined that fact. than 26 inches or a barrel or barrels of less or instant— 922(g)(1) prior not U.S.C. is thus possession a felon being — as a classified never be could of violence. a crime gun pos- violence, no matter However, Judge Stewart’s de- shotgun as was a sessed be- result the correct cannot be approach 5845(a)(l)-(2). in 26 U.S.C. scribed inconsistent plainly it is cause com- Judge Stewart’s Nor 4B1.2. following Notes Application In Calderon- precedent. our by pelled unequivocally Notes Application Those con- Pena, addressed whether we a fire- “[ujnlawfully possessing state Tex- endangerment 5845(a) for child viction (e.g., in 26 U.S.C. arm described of violence” “crime was a ...) as law a ‘crime a sawed-off ” 2L1.2(b) an “‘halving] as (em- n. 1 U.S.S.G. cmt. § 4B1.2 violence,’ U.S.S.G. use, threat- use, attempted element “does term added), that the phasis per- against force physical use ened unlawful the offense include ” at 256 (quoting of another.’ son felon, posses- unless aof l(B)(ii) (2001)).3 cmt. n. 2L1.2 U.S.S.G. firearm described sion an element” the “as added). reasoned We 5845(a),” (emphasis id. [solely] to “look us to required language on authoritative commentary is This crime, defen- not to the elements of 508 the v. United Stinson subject. committing it.” conduct actual dant’s 123 L.Ed.2d 36, 42-43, 113 S.Ct. U.S. manner Although the Williams, at 257. Id. (1993); involved offense Cir.2010) (“Com- means of Calderon-Pena’s 271, 293 n. force, we concluded physical use of application the in U.S.S.G. mentary contained con- alternatives statutory none of the it violates unless is authoritative conclusion, specifically we effect,2 reaching this it meaningful any tо mentary have 2L1.2 §in language issue at compared instances in at least some possible be must 4B1.2(a). n. 6. at id. § See that in con- to to conviction felon-in-possession for a ap- that an elements-based indicated Judge But We violence. of a crime stitute 4B1.2(a)(l) § appropriate result; proach that precludes approach Stewart’s ele- “as an language it used the because mean that would following his method of and means ment,” the manner while under conviction felon-in-possession firearms, sawed- such as a of these certain state of there are Judge indicates that 2. Stewart to violence' due shotgun, fel- a 'crime of forbidding possession off expressly crimes injury physical to shotguns potential of dimensions risk of sawed-off serious of ons 5845(a)(l)-(2), and § drafters’ obvious person.” in U.S.C. The described another only of violence are the crimes Application these amending United States v. conduct”). "involves distinction also (5th Cir.2006). They are limited to the modi- recognized commentary § in the to 4B1.2. categorical approach fied addressing when 4B1.2, § See id. (defining cmt. n. 1 a prior whether a offense of conviction is a "crime violence” of as an offense that ei- 1.2(a)(2). § crime of violence under 4B Unit- use, attempted ther “has as element the Rodriguez-Jaimes, ed States v. use, physical or threatened use of force (5th Cir.2007). determining whether another”; against person or where an instant offense of conviction ais the "conduct set forth ... count of 4B1.2(a)(l), § violence under the Guevara which the defendant was ... convicted court that a indicated modified nature, presented potential its a serious risk appropriate, it based but its another”). injury physical to solely decision on the elements of offense Calderon-Pena, 383 n. F.3d at 258 6. Guevara, ("We at issue. 408 F.3d at 259 need indictment, facts, disregard any- 5. We not look are free to to the dicta from panel opinions thing unpersuasive. when we other find it than statute to determine Gieger, § See United States v. whether 2332a contains an element that 1999) ("We unpersua- qualifies Cir. find this dicta Guevara's crime as a crime of vio- contrary guidelines.”). sive and to section 3Al.l’s text and lence under the with characteristics sessing weapon a pleas establish guilty that held Court shotgun the Armed Ca- of a as described under sawed-off offenses predicate (ACCA), 5845(a)(l)-(2).8 Nevеrtheless, 18 U.S.C. at § Act U.S.C. reer Criminal that a 924(e),7and indicated admit point Lipscomb specifically no did transcript free look to court was to possessed he had the that firearm agreement colloquy plea or written plea bring it within that would characteristics ‘neces- determining plea had “whether in 26 U.S.C. description contained qualifying fact” rested on the sarily’ 5845(a)(l)-(2). a He factual submitted Shep- a offense. predicate as conviction model, gauge, that admitted resume 1254; ard, see at 125 S.Ct. number, but not mention the and serial did at Taylor, 495 U.S. also At firearm or its barrel. length of the (indicating a conviction could be right Lipscomb his plea colloquy, waived actually jury re- narrowed “where him, have read to and those the indictment qualifying find all the elements” quired to read. court details The district were offense). predicate the conviction as he under- Lipscomb then asked then, we at Shepard, should Following ‍​​‌‌​​‌‌​‌​‌​‌​‌​‌‌​​‌‌​‌​‌‌​​‌‌‌‌​‌​‌​​​​‌​​‌​​‍one count “charged stood that he was with the district court determine whether least firearm; a felon being anything properly could consider is, shotgun com- gauge a model 88 “necessarily” established shotgun?” monly as a known sawed-off as de- possessed affirmatively, but Lipscomb replied this 5845(a)(l)-(2). in 26 scribed any did not involve discussion exchange Lipscomb, by Jolly concludes that Judge bring length characteristic that can —the indictment, also guilty to the pleading of 26 U.S.C. firearm within ambit guilty to the dimensions of pleaded 5845(a)(l)-(2). Lipscomb also admitted with the agree general at issue. I firearm the elements of 18 U.S.C. each of plea may that a defendant’s proposition but, length again, the 922(g)(1), 4B1.2(a)(2), establish, purposes mentioned. firearm and its barrel were not requisite is of the the fact that result, sentencing, As a the district 5845(a)(l)-(2). length court declined to find expressly However, Judge Jolly’s I disagree with length aspect had established been sufficient- Lipscomb’s conclusion through plea, opting instead fact. ly established that by means of a make that determination testimony pre- finding factual based on no that the dispute There is indictment sentencing.9 It for this reason pos- sented at charged Lipscomb specifically " inches, weapon commonly previously applied holdings less 'We have our than shotgun.” a ‘sawed-off’ known as clause of the ACCA to under the residual analyze the definition of crimes of violence court ruled follows: 9.The district ” versа.’ and vice question I it is a close as to whether think 669, Hughes, 673 v. 602 F.3d n. 1 States length of Lipscomb admitted the the Mr. Mohr, Cir.2010) (quoting v. United States 554 plea colloquy. didn’t weapon in that I ask 604, (5th Cir.2009)). 609 n. 4 F.3d weapon. length specifically the of the him defined a shot- This could be as sawed-off charged Lipscomb pos- that 8. The indictment gun lay if it than terms was shorter as in Richardson, Harrington "a model sessed that originally I think manufactured. So is 88, bearing gauge shotgun 20 serial number question. a But have to deter- close I don't BA490014, having as a barrel of less modified that, determining that I am I mine because length, length of than 18 inches in overall today before may and did receive evidence

483 Jolly’s agree Judge that I cannot with mination of a sentencing range Guideline ”). Here, .... pleaded guilty panel conclusion that the has unanimously length pleaded rejected proposition of the firearm when he the the that the charac- 5845(a)(1)- to the set guilty indictment.10 teristics out 26 U.S.C. (2) are 922(g)(1). elements agree Judge Jolly’s I with conclu- While matter, then, general As a there no was be sion that sentence should obstacle to the district making court a affirmed, I the disagree with his view that factual finding length to the of the (albeit district court committed error Lipscomb possessed.11 firearm harmless) by determining length the of the a through finding firearm factual at sen- be Nor we the first circuit to Instead, I tencing. permit conclude that the dis- such fact-finding under 4B1.2(a)(2). empowered trict court to make the Rig United States v. finding gans, factual post-conviction Tenth Circuit faced Lipscomb possessed was larceny. instant offense of bank 254 F.3d (10th Cir.2001). 1200, requisite length The defendant 5845(a)(l)-(2). “Elements of a crime had in a committed crime manner that charged “present[ed] must be an indictment and potential serious risk proved jury beyond physical others,” to a reasonable injury but he argued factors, Sentencing on the other “that required doubt. district court was hand, can proved judge only be to a evaluate bank larceny sentenc- ab ing by preponderance of the rejected evidence.” stract.” Id. The district court — O’Brien, -, United States U.S. contention and considered under 2174, 979 lying 176 L.Ed.2d facts of the offense. Id. On appeal, (citations omitted); affirmed, see also United the Tenth Circuit concluding Mares, justification F.3d ap Cir.2005) (“The sentencing judge is enti- ad proach avoiding hoc mini-trials over — “ aby preponderance past tled to find convictions—was absent ‘when thе all examining evidence the facts relevant to the deter- court is de- conduct of the defendant, charged and that to a I fense violence must be determining what consider sentence in the indictment. See U.S.S.G. 4B1.2 cmt. Therefore, appropriate. I find as a factu- ("Other n. are offenses included as 'crimes shotgun. matter it al that was sawed-off (i.e., of violence’ if ... the conduct set forth It is dimensions expressly charged) in the count which indictment, specified in the and that that ..., nature, defendant was convicted its means that it violence. presented potential physical a serious risk of suggested possibility added)); not An alternative but injury (emphasis to another.” accord directly by Judge Jolly's opinion is addressed Charles, United States v. holding Lipscomb's pleading act of (5th Cir.2002) (en banc) (“[I]n determining guilty necessarily to the indictment entailed whether an offense is a crime of violence pleading guilty all of the in the facts indict- we 4B1.2 or can consider ment, including length of the firearm. only conduct set forth in count of which yet pleading guilty Our circuit to hold has convicted, and defendant was not the oth entails an all to an indictment admission of (internal quotation er facts of the сase.” indictment, the facts contained in the see omitted) (quoting marks United States v. Fitz Morales-Martinez, United States v. (5th Cir.1992))). hugh, 954 and, (5th Cir.2007), explain as I Here, Lips expressly charged the indictment below, we need do so here. possessing with as comb Application 11. I note that to Notes 5845(a)(l)-(2). in described require elevating of- 4B1.2 that conduct 484 danger of an ad hoc Finally, at there no instant offense.’”

fendant in the Walker, v. 930 when conduct at issue was mini-trial (quoting 1204 United (10th Cir.1991), 789, superseded F.2d 794 in the for the instant charged indictment as in Stinson grounds stated on other at Riggans, 254 F.3d conviction. See 36, 1, n. States, 508 U.S. Thus, weighed factors that 1203-04. (1993)). Ac 1913, 123 L.Ed.2d 598 S.Ct. Taylor in findings weigh in against factual had not erred cordingly, the district court support themof here. inquiry conduct-specific undertaking in reasons, in foregoing I concur For the during sentenc into the facts of conviction judgment. Id.12 ing. conclusion,13 I and agree I with STEWART, Judge, CARL E. Circuit court, district after would hold here dissenting: guilty to accepting a defendant’s Lamont Lipscomb appeals Eddie being possession, in charge of felon imposed pleaded guilty he sentence after as to the char- finding make a factual a firearm being possession to a felon in possessed, pro- the firearm acteristics of Lips § 922(g)(1). in of 18 violation characteristics were vided that those erred argues that the district court comb approach This charged in the indictment. testimony by relying police on the of a the Supreme with Court’s is consistent his at to establish that three officer Taylor, in which discussed decision a crime of violence categorical approach instant offense was supporting factors 924(e) Sentencing pursuant crime-of-violence to United States to the 18 U.S.C. (1) (U.S.S.G.) 4B1.1, convictions: con determination because Guideline (2) history; statutory language; legislative testimony such precluded sideration of po- practical and “the difficulties and in categorical approach set forth hoc mini-trials. tential unfairness” ad Taylor v. United U.S. 600-01, Here, 2143. at S.Ct. (1990). The 109 L.Ed.2d 607 weigh allowing those factors favor rejects Lipscomb’s argu majority opinion finding make district court to a factual apply we ment that must firearm the characteristics of the Lips- relies the Sen approach, instead on First, statutory lan- possessed. comb commentary tencing Commission’s rather than “ele- guage refers to “conduct” § 4B1.2 to affirm the conviction U.S.S.G. Calderon-Pena, 383 at ments.” F.3d See reasons, I following For the sentence. Second, the Application n. 6. Notes respectfully dissent. posses- make specifically were amended with characteristics sion of firearm I. FACTUAL AND PROCEDURAL 5845(a) a crime of forth in 26 U.S.C. set BACKGROUND something possible violence— charged categorical approach. See straightforward C, a convicted felon viola- amend. at 134. supp. app. U.S.S.G. disagree. circuits See United States Riggans court took the broad view Other 12. also Cir.2006) Piccolo, are that district courts not limited conduct F.3d making charged indictment (applying 1.2(a)(2) findings sentencing. § 4B factual 1.2(a)(2) to an instant offense of convic- 4B above, As discussed this at 1204. Martin, tion); United States v. Charles view is in direct conflict with (4th Cir.2000) (same). 473-74 Application to 4B1.2. VI, §§ tion 922(g)(1) of 18 and of category Lipscomb’s U.S.C. Guidelines sen- 924(e)(1). specified range The indictment tence was 292 to 365 months of possessed the firearm a Lipscomb imprisonment was and years three to five shotgun length sawed-off with an supervised overall release.

less than 26 and a length inches barrel less Lipscomb While did not contest that he than 18 inches.1 requirements ACCA, met the for he ob-

At the rearraignment proceeding, jected initiаl designation to his as a career of- Lipscomb stated he was undecided fender under 4B1.1. He asserted that pleading about and guilty, magistrate his current offense not a was judge accept did guilty plea. his At violence because the determination of rearraignment second proceeding, offense is a crime of violence Lipscomb requested additional to re- 4B1.1 time must be according made possible search a defense charge, to the the categorical approach forth set in Tay- granted and the district court a Lipscomb lor v. United U.S. (1990). continuance. At third rearraignment 109 L.Ed.2d 607 Lips- proceeding, Lipscomb finally pleaded comb noted that of a guilty to the indictment without benefit a convicted felon is not a crime of violence agreement. written In the firearm unless is the type described in amended resume 5845(a), factual Lipscomb acknowledged but submitted, possessing he admitted to a that a shotgun awith barrel less shotgun, length but did not admit to the than inches in length a firearm de- 5845(a). shotgun. argued, however, scribed in He that while the alleged indictment that he (PSR) presentence report stated possessed a shotgun awith barrel less that Liрscomb crimi- was armed career than in length, 18 inches the district court pursuant nal to the Armed Career Crimi- could allegation not consider this under the (ACCA), 924(e)(1), nal Act and was categorical approach allega- because the subject therefore to an statutory enhanced regarding length tion the barrel was not range. sentence The PSR further stated necessary prove the offense under the that Lipscomb a un- career offender statute of conviction. In addition to ob- alia, because, der U.S.S.G. 4B1.1 inter PSR, jecting Lipscomb to the filed a mo- Lipscomb’s ‍​​‌‌​​‌‌​‌​‌​‌​‌​‌‌​​‌‌​‌​‌‌​​‌‌‌‌​‌​‌​​​​‌​​‌​​‍instant offense tion downward from variance violence. Pursuant the PSR range. Guidelines sentence concluded that offense base applied level was then sentencing, and At present- two-level the Government acceptance reduction for of responsibility testimony ed police from a officer that the for a total level upon offense of 35. possessed Based was less than history offense level of 35 and in length criminal inches and had barrel less 1. The entirety: stated in its possess affecting indictment in and interstate and for- firearm, eign commerce to wit: a Har- Felon in Possession of Firearm Richardson, (Violation rington and model 922(g)(1) 18 U.S.C. and 924(e)(1)) gauge shotgun, bearing serial number BA490014, 20, 2007, having On as modified a barrel or about March Dal- length, las 18 inches in Division of the Northern of Tex- less than overall District as, defendant, inches, length weapon Lipscomb, Eddie Lamont less than 26 having being commonly pun- convicted known [sic] of a crime as a "sawed-off” shot- by imprisonment gun. ishable for a exceed- [sic] term violation ing year, knowingly 924(e)(1). unlawfully 922(g)(1) §§ did novo, are findings factual de and its The district viewed length. in

than 18 inches make factual it could clear court ruled that for error. United States reviewed that fire- at determination Cisneros-Gutierrez, 5845(a) §in described type was arm Cir.2008). age at than a Other defendant’s enhance- offender apply the career present offense, “the deter- the time of the dispute because on that basis ment made in course a career minations of offense, present concerned whether all questions are offender classification offense, a crime of vio- prior a not Guevara, law.” United States Lips- it overruled Accordingly, lence. Cir.2005). “[cjharac- Thus, objections adopted Guide- comb’s a crime violenсe is terizing an offense as set range calculations forth lines sentence at 261 purely legal a determination.” Id. granted court The district in the PSR. n. 10. for motion a downward vari- Lipscomb’s ance,2 to 240 Lipscomb and sentenced years and five imprisonment

months of III. DISCUSSION objected to supervised release. a career a defendant is Under court over- the sentence and district if: offender in- objection. The Government ruled court would district quired whether (1) eighteen was at least the defendant even if it imposed the same sentence have com- years time the defendant old objection to the granted Lipscomb’s had conviction; the instant offense of mitted enhancement, and the dis- career offender (2) the instant offense conviction it responded that would then trict court of violence felony that either crime imposed. reconsider the sentence offense; and or a controlled substance sentence, his chal- Lipscomb appeals determina- only the district court’s lenging has at two the defendant least offense, instant tion his felony convictions of either a a firearm a convicted felon violation of- or controlled substance violence 924(e)(1), 922(g)(1) §§ of 18 U.S.C. fense. of violence. was crime 4Bl.l(a). Lipscomb argues U.S.S.G. II. OF REVIEW STANDARD conviction, that his instant offense as a 922(g)(1),3 qualify did not or interpretation appli- A district court’s required is re- violence Sentencing cation of the Guidelines granted 922(g)(1) provides 3. 18 U.S.C. that: court downward The district grounds Lipscomb did variance on any person for It shall be unlawful —... shotgun and actually own the did not of, any has been convicted court who shotgun. Lipscomb intentionally acquire the by imprisonment punishable car, got attested he into a borrowed ship exceeding year or ... term arrest, driving at time of his which he was commerce, foreign transport in or interstate knowing that there was without ' commerce, affecting any possess or or The court stated it 'as- seat. ammunition; any or or to receive firearm proceeding purposes of the sume[d] for has been or ammunition which [Lipscomb] necessarily know didn’t or for- there, shipped transported interstate weapon probably [] but should eign commerce. it had doubts that have” and that “serious owned, actually [Lipscomb] or had intentions respect to the firearm to commit a crime at issue." 4B1.1(2).4 As instant оffense of posses- sion of a firearm a convicted felon does 4Bl.l(a) § “crime of violence” A use, use, not have the attempted or threat- 4B1.2(a) §in defined as: physical ened use of force as an element law, any offense under federal or state offense, and is not an enumerated the is- by imprisonment for a term punishable sue here is whether present exceeding year, that— pre- offense “otherwise involves conduct (1) use, has as an at- element senting injury a serious risk of to another” use, tempted use of or threatened 4B1.2(a)(2). § under the residual clause of person physical against force of Serna, 859, See States v. United 309 F.3d another, or (5th Cir.2002) 862 & n. 6 that the (holding arson, dwelling, is burglary of a or of possession Texas offense of a prohibited extortion, explosives, involves use of weapon only qualify could as a crime of otherwise or involves conduct violence under the residual of clause presents potential serious risk of 4B1.2(a)(2)). § injury to another. physical 4B1.2(a) 4B1.2(a). ac U.S.S.G. Section A. Applicability Categorical Ap- of tually provides three separate definitions to proach the Instant Offense of of “crime viоlence.” United States v. (5th Cir.2010). 669, Hughes, 673 making a determination that prior First, “a qualifies crime if force ‘physical offense is crime of violence under against person is an ele another’ 4B1.2(a), it is axiomatic that must courts (citing ment offense.” Id. at 673-74 employ categorical approach set — States, U.S.-, Johnson United States, Taylor forth in v. United 495 U.S. (2010)). 1265, 1 130 S.Ct. 176 L.Ed.2d 575, 602, 2143, 110 S.Ct. 607 109 L.Ed.2d “Second, a qualifies if is an enu it States, (1990), Shepard v. United 544 arson, offense: or burglary, merated ex 13, 15, U.S. 125 S.Ct. 161 L.Ed.2d Taylor, Id. at 674 (citing tortion.” 495 (2005), looking at the nature of the (1990)). “Third, 110 S.Ct. U.S. prior and not specific conviction facts clause, qualifies if it fits the residual of the offense. See United v. Rod ‘potential physical which focuses on risk riguez-Jaimes, 481 Cir. ” (citing to injury Begay another.’ v. 2007). Guevara, In United States v. we United ap approach held that the also (2008)). 1581, 170L.Ed.2d 490 plies evaluating whether the instant application specifi- § 4B1.2 crime of notes to offense is a violence. 408 F.3d “ ‘[cjrime provide (citing cally of violence’ 261-62 United States v. Calderon- (en Pena, Cir.2004) not does include the offense unlawful F.3d 254 banc)). felon, again of a possession applied firearm unless We firearm described instant offense 5845(a).” Dentler, app. in U.S.C. 4B1.2 n. 1. holding States v. that the instant it as a wrongly A modified so that “has an offense had been classified length of overall less than 26 inches or a crime of violence where the statute of con barrel barrels less than inches viction did include violence as an es 5845(a). element, length” though sential even described the facts 5845(a). See 26 the offense demonstrated violence and 1.1(1) (3). dispute is no There satisfies 4B determining jury finding purposes of violence.5 the later specific made a (5th Cir.2007). prior particular offense constitutes violence, of conviction the statute 4B1.2 Moreover, Note Application categori- for speak itself—under states that: a crime approach' cal it is not —'that (Career Offender) ex- 4B1.1 Section rationale Accordingly, violence. provides that the instant pressly categorical approach applying both violence must be crimes of offenses prior the instant and offenses is sound and offenses or controlled substance justification enabling there is no for such convicted. which the defendant was conflicting results.6 Therefore, determining in crime or con- offense is a of violence 1. Guevara Survives Booker purposes for the trolled substance acknowledges The Government Guevara (Career Offender), the 4B1.1 offense Dentler, categori- that the argues and but (i.e., the which the conduct of conviction not approach applicable cal is here because convicted) focus of is the defendant was prior sentencing was held Guevara inquiry. Booker, 220, States v. to United added). Thus, 2 app. (emphasis 4B1.2 n. 738, (2005).7 125 160 L.Ed.2d 621 S.Ct. anticipate that Sentencing Guidelines Guevara took While instant offenses evaluation of Booker, prior to this court affirmed place applying will like manner be conducted post-Boo/eer clearly stat- the sentence Further, evalu- categorical approach. career ed that the offender determinations categorical offenses ating prior under using approach were made offense, approach, instant but not violate and did the Sixth Amendment troubling lead to and inconsistent obviating any possibility under results; for during sentencing specifically, Booker— holding in be offense, that the Guevara would mod- a court conclude might instant Guevara, by Booker. 408 F.3d at was a of violence ified that the offense crime Furthermоre, the Dentler specific findings, based on factual but 261-62. sen- Dentler, 4B1.2, categori- legal question, 5. the court tion under U.S.S.G. relied on analysis approach Taylor's categorical cal and conclusions properly decided under Jones, 58, (5th United States v. 61-62 analysis prior and in cases of both current Cir.1993). jury held could Jones that "the Piccolo, United v. offenses.” States F.3d only if it convict Jones of count two [ACCA] 1084, (9th Cir.2006); see United v. States violence,” but found he committed crime of Martin, Cir.2000). F.3d 472-75 disjunctive of the statute the subsection Circuit, however, rejects The Tenth the cate charged did in count of the indictment gorical approach conduct-spe in favor of "a violence. not include essential element of considering inquiry” when instant cific The Jones reversed Id. at 62. court therefore Rig offense of conviction. United States Although the ACCA conviction. Jones (10th Cir.2001). gans, 254 F.3d 1203-04 was a evaluated whether the offense at issue applying purposes of violence for Booker, Supreme 7.In United States v. ACCA, consistently applied our this court has mandatory held that the nature Court then holdings violence ACCA to crime of Sentencing Guidelines violated defen- analyze the definition оf crimes of violence rights, dant's Sixth and the Amendment maxi- and vice versa. See impose judge may mum sentence must Mohr, 609 n. F.3d solely be determined on the basis of facts cases). Cir.2009) (citing jury in a or admitted reflected verdict defendant. 543 U.S. have also The Fourth Ninth Circuits (2005). determina- L.Ed.2d 621 held that "the crime-of-violence tencing place post took -Booker and held well violence determinations 4B1.2(a)(l). upon the district not based plainly court erred 261-62. The Guevara court following appli- the Jones court’s did not indi- previous cate were any exceptions that there with re- to the cation Dentler, categorical approach, stating: use of the to the spect instant offense. 4B1.2(a)(2) at 313. Section instructs courts consider the instant offense that, Government af- also observes it “burglary dwelling, violence if Booker, now ter district courts make arson, extortion, involves use of ex- findings necessary support factual a ca- plosives, or otherwise involves conduct reer offender determination without violat- presents serious potential risk of ing Although post- Sixth Amendment. injury physical to another.” Our case- “the Sixth will not Booker Amendment law interpreting provision hаs cate- a sentencing judge finding all impede from gorically forbidden looking courts from sentencing,” relevant to facts beyond statute and in the indictment (5th Mares, 511, 402 F.3d 519 Therefore, making this decision. as is Cir.2005), our easelaw nonetheless consis- 4B1.2(a)(l), § case tently requires apply categor- courts to 4B1.2(a)(2) court can- approach to ical Guidelines determinations not base its crime-of-violence determina- required by Taylor progeny as and its —a beyond tion anything present on what is of authority line distinct from Booker. in or in alleged the statute the indict- See, Mohr, e.g., United States v. ment, which, convict, elements as to to 604, Cir.2009) (“In determining jury must have found evidence be- an of qualifies whether offense as yond a reasonable doubt .... clause, under the violence residual this (internal omitted). Id. at 261-62 citations applies the categorical Court set (full Taylor Shepard.”) out citations Application 3. Note 1 and the Rules of omitted). Statutory Construction The Government also claims that Gue- 2. Guevara to Applies Both vara and Dentler do not control here be- JfBl.2(a)(l) (2) §§ cause Note 1 Application to 4B1.2 does alternatively The Government asks the implicatе the “broad definition” narrowly court to construe Guevara and crime of violence. The Government relies only apply Dentler to cases involve principle on the venerable that “in most an offense was a crime of violence contexts, drawn, a precisely detailed stat- 4B1.2(a)(l) use, because it had general ute more pre-empts remedies.” use, attempted States, or use of force 506, threatened 501, Hinck v. United 550 U.S. Although as element of the offense. 167 L.Ed.2d (internal both Guevara and base their Dentler did marks and quotation citations omitted). violence determinations on the argument Government’s statutory however, of a premise, absence element violence on false rests force, use of explicit holding application or Guidelines’ Sentencing Guevara’s notes precludes freestanding provisions. such a Guevara Ap- construction. create new specifically categorical ap- only clarify held that plication mination under ACCA that enhanced his F.3d at 313.10 statutory maximum sentence. The Gov- view, attempts In my the Government’s

ernment, however, distinguish attempts to categorical application to avoid the grounds on the that the line of Guevara rulings run approach afoul of this court’s cases from which Guevara evolved was Dentler, language in Guevara and and the upon Taylor Shepard, based and which § § 4B1.1. Both 4B1.1 involved ACCA determinations. The Gov- of Guevara Calderon-Pena, 254, above, explained ed States v. 383 F.3d 8. As unlawful (5th ‍​​‌‌​​‌‌​‌​‌​‌​‌​‌‌​​‌‌​‌​‌‌​​‌‌‌‌​‌​‌​​​​‌​​‌​​‍Cir.2004) (en banc) only (recognizing fall within the this dis- 4B1.2); clause as an offense that "otherwise residual § § tinction between 2L1.2 and see poten- presents Charles, 309, involves conduct serious also United States v. 301 F.3d physical injury to tial risk of another.” banc) J., (5th Cir.2002) (en (DeMoss, 315-16 Serna, 1.2(a)(2); § 309 F.3d at U.S.S.G. 4B see ("I concurring) separately specially write 862 & n. 6. amplify the nature and extent of the confusion meaning ambiguities which to the exist as clarity, I note that this court 9. For sake the term 'crime .... I can see of violence' frequently also utilizes crime of violence de- justification no rational for a defined term 2L1.2, pursuant terminations to U.S.S.G. such as ‘crime of violence' ... to have this illegal reentry sentencing, analyze many meanings.”). different definition of crimes of violence under ACCA and vice versa. See United 10.Other circuits have likewise extended the Garcia, 1143, States v. 470 F.3d n. 5 rulings regarding Supremе ACCA Court's Cir.2006) (considering previous of vio- categorical approach to Guidelines career holdings purposes 2L1.2 for lence context under 4B1.2. offender enhancement 1.2(a)(1) making §a 4B de- crime of violence 808, McDonald, 592 F.3d See United States termination). comparisons inap- Such are (7th Cir.2010); United v. Fur 810-11 however, addressing propriate, when ACCA (8th Cir.2010); queron, 605 F.3d 1.2(a)(2) violence determina- 4B Alexander, 609 F.3d United States Appli- tions under the residual clause because 1253, (11th Cir.2010); 2L1.2, l(B)(iii) United States v. Den defining cation Note nis, (10th Cir.2008); 2L1.2, 988-89 purposes crime of violence for Piccolo, See Unit- 441 F.3d at 1086. does not contain residual clause. expressly provide pri- the instant and specific conduct particular of this offend- (or James, or offenses must be crimes of violence er.” 550 U.S. at 127 S.Ct. offenses) controlled substance of which the 1586. The court thereby prac- avoids the convicted, defendant was and that the cat- tical difficulty trying to ascertain wheth- egorical approach governs crime, such determina- er the defendant’s “as committed on Accordingly, occasion, tions. the district court a particular did or did not involve required apply categorical violent behavior.” Chambers v. United — in making its Lips- U.S.-, determination that 687, 690, present (2009). comb’s offense was a crime of 172 L.Ed.2d 484 4B1.2(a). violence Although the strict categorical approach is the starting point of analysis, it is B. Application the Categorical and not necessarily the ending point. Courts Categorical Approaches Modified may look beyond the statutory definition I turn now to whether pres- and apply 'a categorical “modified ap ent offense was a crime of violence when proach” under limited circumstances. examined under the Johnson, and modi- 130 S.Ct. at 1273. As the Su fied approaches. Sojour- See preme Court recently explained in Nijha Edwards, ner T v. wan v. Holder: Cir.1992) (This court “affirm the dis- [Sjometimes a separately numbered sub- trict judgment any court’s on grounds sup- section of a criminal statute will refer to record.”). ported by the crimes, several different each described separately. And it can happen that

“In determining whether an offense some of these crimes involve violence qualifies as a crime of violence under the while others do not .... In such an clause, residual applies this Court the cate- instance, said, we have a cоurt must gorical approach” as set out in Taylor and determine whether an prior offender’s Mohr, Shepard. 607; 554 F.3d at see also violent, conviction was for the rather United States v. Insaulgarat, 378 F.3d [crime], than the nonviolent by examin- 456, (5th Cir.2004). Under the cate- ing “the indictment or information and gorical approach, “we consider the offense instructions,” jury Taylor, 602, at supra, generically, say, that is to we examine it in 575, 2143, 495 U.S. 110 S.Ct. terms of how the law defines the offense 607, or, L.Ed.2d if guilty plea is at and not in terms of how an individual issue, by examining plea agreement, might offender have committed it on a plea colloquy or comparable judi- “some particular Begay, occasion.” 553 U.S. at cial record” of the factual basis for the 141, 1581; 128 S.Ct. see also James v. plea. States, Shepard v. United 192, 201, 550 U.S. 127 S.Ct. 13, 26, 1254, U.S. 125 S.Ct. 161 L.Ed.2d (2007) (“[W]e 167 L.Ed.2d 532 look (2005). only to the fact of conviction and the statu- tory offense, definition of the (2009); and do 129 S.Ct. see also John- generally son, particular consider the facts at 1273. Consistent with conviction.”) (in- by disclosed Johnson, record of Nijhawan and this court has ex- quotations ternal marks and omit- plained citations that “[w]hen defendant is con- ted). is, “That we consider whether the victed under a statute that contains dis- elements subsections, are of the type junctive the court look to offense justify its inclusion within charging the resid- by documents ‘to determine provision, ual without inquiring into the which method the crime was committed 1913) (“Com- Mohr, son, at 113 S.Ct. case particular Riva, 440 (quoting at 607 United States in the Manual mentary Guidelines (5th Cir.2006)). 722, 723 explains is au- interprets guideline or it thoritative unless violates Constitu- begin I whether the Accordingly, conviction, § 922(g), statute, offense of or a federal or is inconsistent tion multiple Hughes, 602 contains crimes. See with, plainly-erroneous reading or multi- 922(g) at 676. Section contains above, Application guideline.”). As noted crimes; ple parsing language a fire- provides Note twenty separate at produces least statute by arm a convicted felon is not 922(g). Apply- offenses. See U.S.C. was possessed unless the firearm violence ing categorical approach the modified 5845(a). firearm described in See determining “which statuto- purpose n. 1. app. U.S.S.G. conviction,” ry phrase was the basis for the Thus, pertinent becomes issue Johnson, at I look to “the anything that the district court document, charging the terms terms of allowed to under the cate- consider of collo- plea agreement transcript of a or modified judge gorical between and defendant in which quy factual basis for was con- the firearm approach demonstrated defendant, com- firmed or to some by Lipscomb a firearm de- possessed information,” parable judicial record this 5845(a). §in ar- scribed The Government Shepard, 544 U.S. 125 S.Ct. 1254. have gues that the district court could narrows language indictment looked admissions unlawful for “[i]t the offense shall be allegations oath11 or to the indictment’s has any person who been convicted with an was a for a punishable imprisonment length less inches and bar- overall than 26 exceeding year possess a fire- term than length rel less 18 inches.12 affecting foreign arm in or interstate Nijhawan But accordance with commerce.” Johnson, under the modified Ordinarily, this court would next turn approach the court’s consideration of evaluating whether conviction consti judicial and other documents indictment a crime of it is tutes violence because statu upon ascertaining must end “which “roughly similar” to of the enumerated (contained tory phrase statutory within 4331.2(a). §in 553 U.S. Begay, fenses See provision ge different covers several 1581; at United States crimes)” Ni neric covered the conviction. Harrimon, (5th F.3d ‍​​‌‌​​‌‌​‌​‌​‌​‌​‌‌​​‌‌​‌​‌‌​​‌‌‌‌​‌​‌​​​​‌​​‌​​‍534-35 Cir. at The modified jhawan, 2303. 2009). Here, however, analysis is such approach provides no license for further unnecessary light instruc specific judicial consideration of indictment or § 4B1.2. Application tions of Note Ollison, (citing F.3d See at 165 Stin- documents.

11. by pleading argues Even the district considered Government if court had The indictment, resume, necessarily guilty Lipscomb to the Lipscomb's plea colloquy and factual allegations all the contained admitted factual Lipscomb admit the record shows while yet had in the indictment. This court has not shotgun, ted that the firearm awas question, address cause to that contentious length admitted that of the he never the barrel does the court have to reach the nor reason firearm was less than 18 inches or that issue here. See United States v. Morales-Mar- length overall was less 26 inches. than tinez, Cir.2007).

Consequently, may the court consider fied the firearm as a 12-gauge shotgun only the elements contained within the evidence showed that it was a 20- James, statutory definition of the crime. gauge; gauge was not an es- 201, 127 550 U.S. at S.Ct. 1586. The rele- offense). sential element of the charged statutory phrase 922(g)(1) § vant has The Government further argues by (1) three elements: the defendant had a holding that categorical approach pre- punishable by conviction of cludes a court from making factual find- imprisonment exceeding term ings regarding weapon at issue in the (2) year; knowingly possessed he a fire- § 922(g)(1) conviction for purposes of (3) arm; the firearm affecting 4B1.2, § this court entirely undermines interstate commerce. 18 U.S.C. 5845(a) § exception included in Appli- 922(g)(1). § Nothing pos- the felon in cation Note 1. I disagree. A felon in session statute mentions the characteris- (or possession of a short-barreled shotgun weapon, tics of the language and the of the another type of firearm specified in statute far categorical is as as the ap- 5845(a)) § may qualify for career offender proach extends. Anything further would enhancements based on state convictions. prohibited inquiry specific be into “the See, e.g., 13A-11-63; Mo. Ala.Code particular conduct of this offender.” 571.020; Rev.Stat. Tenn.Code Ann. James, at 127 S.Ct. 1586. § 39-17-1302; 46.05; see Tex Pen.Code arguments Government’s are there- Serna, also 862-63. More- (1) fore without merit becausе after deter- over, Application Note 1 support does not mining the relevant statutory provision, an exception categorical to the approach in the court not delve further into the involving possession cases unlawful indictment or colloquy under the mod- 5845(a). “ firearm described in 26 U.S.C. categorical ified approach, and the type Application only Note 1 states that ‘crime possessed is not an element of a of violence’ does include the offense of possession conviction for of a firearm a possession felon, unlawful firearm a convicted 922(g)(1) pursuant felon under unless the was of a firearm categorical approach. 5845(a).” described Although argues the Government 4B1.2, app. U.S.S.G. n. 1. It does not the type weapon was an essential ele- application address the ment of conviction because it would have approach to these offenses. been required prove pos- summarize, To in determining whether sessed the firearm described in the indict- an offense is a crime of violence for the trial, ment at this court has in fact reached purposes of under the contrary conclusion. See United categorical approach, modified the of- Guidry, States v. Cir.2005) (no fense of conviction should be the focus fatal variance between the inquiry. judicial The indictment and other indictment proof and the offered at trial Shepard may documents listed in be when the indictment relied alleged possession of upon only prove necessary a 9mm facts to the Kurz and the evidence at trial conviction, 20-21, Shepard, 544 at possessed showed the defendant U.S. .380- caliber or for pistol type weapon purposes discerning because the possessed statutory phrase disjunc- was not an essential element of under which offense); Munoz, convicted, United tive statute the defendant was (5th Cir.1998) (no Johnson, construc- 130 S.Ct. at 1273. Because tive government testimony amendment where identi- sentencing on which the dis- determining Lips- trict court relied a firearm involved instant offense

comb’s 5845(a) not evidence §in

described categori- under the considered be that the district I would hold approach,

cal testimony er-

court’s reliance on Further, not the court could

roneous. in the in- allegations

have considered colloquy purposes or the

dictment characteristics of the establishing were those characteristics

weapon because statuto- necessary to determine “which for conviction”

ry phrase was basis 922(g)(1). CONCLUSION

IV. discussed, the district

For the reasons concluding

court erred crime of violence and

instant crime was a him a career offender on I vacate the sentence

that basis. court for resen-

and remand to the district majority opinion

tencing. Because the result, contrary respectfully I

adopts a

dissent. America,

UNITED STATES

Plaintiff-Appellee, DOWL, also known

Barbara Simmons Simmons, known as

as Barbara also Dowl, Lee also known as

Barbara Dowl, Defendant-Appellant.

Barbara

No. 09-31041. Appeals, States Court

Fifth Circuit.

Sept. notes of child the Texas definition statute, tained within or is federal or a Constitution re- element had endangerment erroneous with, plainly aor ‍​​‌‌​​‌‌​‌​‌​‌​‌​‌‌​​‌‌​‌​‌‌​​‌‌‌‌​‌​‌​​​​‌​​‌​​‍inconsistent use, use, or threatened attempted (internal quired quota- of, guideline.” reading force. physical omitted)). com- use for this And marks tion

Notes

that Notes goal in to Application Notes contemplated interpretation of by the strained undermined gives to gesture no effect § This token 4B1.2. 1.2(a)(2) possession would find § 4B drafters, recognized who of the intentions a crime of violence shotgun to be fire- that those “Congress has determined prior conviction. only it is a state where 5845(a) § are in described arms possessed un- inherently dangerous and when of language in the current version The 3. purposes.” only lawfully, violent serve now unchanged, but it is § 2LI.2 remains C, app. at supp. amend. U.S.S.G. l(b)(iii). Application Note located “[a] decisions of approved drafters held [that] of courts number committing properly an offense could require be ‘otherwise clause’ would us to 4B1.2(a)(2) § considered under because consider posed by risk hypоthetical con- provision phrase the latter used the “in- duct.”). Judge notes, As the Gue- Jolly volves IdL4 conduct.” vara court also indicated dicta that a categorical approach similarly would be We applied Calderon-Pena’s discussion 4B1.2(a)(l) 1.2(a)(2) appropriate § § when applying of to an of 4B offense conviction Guevara, in Id. at instant 408 F.3d 252 offenses. 261-62.5 (5th Cir.2005). We concluded Gue- my view, district courts are not limit- threatening vara’s offense use a strict, ed to a elements-based destruction, weapon of mass violation of 4B1.2(a)(2) approach applying § when 2332a, § violence an instant offense. The relevant text re- 4B1.2(a)(l) had, § under it because as an fers to a defendant’s “conduct” rather than element, physical the threatened use of any particular “element” of the crime. Id. at 259-60. We force. expressly de- Compare (“has 4B1.2(a)(l) § U.S.S.G. as clined to determine whether instant ”) an with U.S.S.G. element ... offense have as a qualified 4B1.2(a)(2) (“involves ...”). conduct I 4B1.2(a)(2). See id. violence under therefore with the Calderon-Pena agree (“Because quali- Guevara’s conviction court’s discussion that this meaningful is a fies a ‘crime of violence’ under Thus, minimum, distinction. at a district 4B1.2(a)(l), express opinion we no as to courts may consider the sources of infor- whether it would qualify under 4B1.2(a)(2).”); (“We mation id. at 260 n. 6 acceptable deemed under the modi- de- fied engage complicated cline to the more articulated in analysis 4B1.2(a)(2), Shepard.6 case, under which In that Supreme it.”). 4. The relevant discussion we explain consisted the fol- choose to follow As I lowing: below, agree Judge Jolly I with that we exactly regard traditionally The criminal law should do has distin- to this guished between the elements of an dicta offense from Guevara. committing and the manner and means Indeed, given in a offense case. are, course, 6.District courts limited to an recognize Guidelines themselves such a dis- categorical approach elements-based in deter- Compare 4B1.2(a)(1) tinction. U.S.S.G. mining offense conviction (2003) (using language), "as an element” 4B1.2(a)(l). is a crime violence (a)(2) (using phrase with id. 4B1.2 Garcia,

Notes

notes the Guidelines’ Ollison, proach applied provisions. deter- crime of violence See United States v. (5th Cir.2009) upon (citing minations based enumerated offenses 4B1.2(a)(2), residual clause of Stinson v. United (1993)) distinction would re- ernment’s attenuated L.Ed.2d 598 disavowing years precedent. Guidelines Manual (“Commentary quire guideline explains or interprets felony’ of ‘violent “The definition [ACCA] unless it violates Consti- authoritative to that of ‘crime of violence’ is identical statute, or is inconsis- tution or a federal Mohr, context.” 554 F.3d the Guidelines with, reading of plainly erroneous tent or categorize at 609. The method used guideline.”). Unlawful on whether convictions has never turned any crime of vio- shotgun, like statutory impact determination will 4B1.2, must fall within the lence under maximum; categorical approach the same 4B1.2(a)(l) §§ of either definition § 4B1.2.9 applies under ACCA or See id. (a)(2) is, must still either the crime —that (“We our previously applied at n. have force, be an enumerated involve the use holdings under the residual clause of offense, clause.8 or fall within residual analyze the definition of crimes ACCA 4B1.2, violence under and vice ver- Distinguishing ACCA Career from sa”); Hawley, see also United States Enhancements Offender Cir.2008) (“Sec- 264, 271-72 Guevara, case, just present as in the tion 4B1.2 of the Guidelines contains challenged a career offender the defendant 924(e) Clause as de- same Otherwise not a deter- determination under Dentler, ”); fining ‘crime violence’

Case Details

Case Name: United States v. Eddie Lipscomb

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Sep 13, 2010

Citation: 619 F.3d 474

Docket Number: 09-10240

Court Abbreviation: 5th Cir.