UNITED STATES of America, Appellee, v. Joe Eugene VINCENT, Appellant.
No. 07-1397.
United States Court of Appeals, Eighth Circuit.
Submitted: Aug. 3, 2009. Filed: Aug. 14, 2009.
For these reasons, we hold that the bankruptcy court erred in confirming Lasowski‘s plan, because the court did not accurately determine Lasowski‘s projected disposable income. Accordingly, we reverse the decision of the bankruptcy court, and remand for further proceedings.
Edward O. Walker, AUSA, Little Rock, AR, for appellee.
Before LOKEN, Chief Judge, GRUENDER and BENTON, Circuit Judges.
BENTON, Circuit Judge.
Joe Eugene Vincent pled guilty to being a felon in possession of a firearm in violation of
I.
Before this case Vincent had three felony convictions. The ACCA imposes a mandatory minimum sentence if the defendant has “three previous convictions by any court ... for a violent felony....”
Vincent objected that the 1994 conviction was not a violent felony. The district court concluded that there was not enough information to show the gun met the federal definition of a sawed-off shotgun. However, the court determined there was sufficient information to show the “conviction involved conduct that by its nature presented a serious risk of physical injury to another.” United States v. Vincent, 2007 WL 473691, at *2 (E.D.Ark. Feb.7, 2007). The court overruled Vincent‘s objection, applied the ACCA, and sentenced him to 188 months.
This court reviews de novo the finding that a defendant‘s prior conviction constitutes a violent felony. United States v. Sumlin, 147 F.3d 763, 765 (8th Cir. 1998).
The only issue is whether the 1994 conviction is a violent felony under the ACCA. A “violent felony” means a crime punishable by a term of imprisonment exceeding one year that is “burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.”
Both at the district court and on appeal, Vincent contends that the 1994 conviction can be an ACCA violent felony only if the sawed-off shotgun meets the federal definition of a sawed-off shotgun in
True, Sentencing Guideline
This court rejected Vincent‘s challenge in an earlier appeal. United States v. Vincent, 519 F.3d 732 (8th Cir.2008). As the court noted, the issue is not whether the 1994 shotgun meets the
The Arkansas statute under which Vincent was convicted prohibited the possession of any “sawed-off shotgun or rifle, ... or other implement for the infliction of serious physical injury or death which serves no common lawful purpose.”
II.
The Supreme Court vacated this court‘s earlier opinion in this case and remanded for further proceedings in light of Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), and Chambers v. United States, 555 U.S. 122, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009). Vincent v. United States, 555 U.S. 1131, 129 S.Ct. 996, 173 L.Ed.2d 289 (2009). Both cases interpret the “otherwise” clause of
In Chambers, the Supreme Court concluded that the state-law crime of failing to report for confinement is not a violent felony under the ACCA. Chambers, 129 S.Ct. at 693. The Court noted that this “crime amounts to a form of inaction, a far cry from the purposeful, violent, and aggressive conduct potentially at issue when an offender uses explosives against property, commits arson, burgles a dwelling or residence, or engages in certain forms of extortion.” Id. at 692 (quotations omitted).
“In determining whether this crime is a violent felony, we consider the offense generically, that is to say, we examine it in terms of how the law defines the offense and not in terms of how an individual offender might have committed it on a particular occasion.” United States v. Boaz, 558 F.3d 800, 807 (8th Cir.2009), quoting Begay, 128 S.Ct. at 1584. “When the law defines an offense by proscribing several discrete, alternative sets of elements that might be shown as different manners of committing the offense, we employ the modified categorical approach that permits examination of a limited class of materials to determine which set of elements the defendant was found to have violated.” Id. This class of materials includes the “charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.” Shepard v. United States, 544 U.S. 13, 16, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005).
Here, the Arkansas statute bans “Criminal Use of a Prohibited Weapon“:
A person commits the offense of criminal use of prohibited weapons if, except as authorized by law, he or she uses, possesses, makes, repairs, sales, or otherwise deals in any:
(1). Bomb;
(2). Machine gun;
(3). Sawed-off shotgun or rifle;
(4). Firearm specially made or specially adapted for silent discharge;
(5). Metal knuckles; or
(6). Other implement for the infliction of serious physical injury or death.
Vincent pled guilty that he did “use, possess, or otherwise deal in” a sawed-off shotgun. Throughout this litigation, all participants, including Vincent, have characterized the disputed conviction as possession of a sawed-off shotgun. The facts of the PSR, to which Vincent did not object, are that he “was in possession of a stolen vehicle” and “a sawed off shotgun was found sitting on the front passenger seat.” Objecting to the PSR, Vincent acknowledged a conviction for possession, but argued the weapon‘s barrel length was never proved.2 Overruling the objection, the district court observed “the Court received into evidence, without objection, the criminal docket of the case that resulted in Vincent‘s conviction for possessing a sawed-off shotgun.” At sentencing, the district court described the prior offense as “possession of a sawed-off shotgun.” Vincent‘s appellate Brief refers to the § 5-73-104 conviction as “possession of a ‘sawed-off shotgun‘....” His supplemental Brief, filed after the Supreme Court‘s remand, states that “what is truly at issue is whether possession of a sawed-off shotgun qualifies as a violent felony under the ACCA.”
Absent any prior objection or argument to the contrary, at this stage of litigation any assertion that Vincent was not convicted for possessing a sawed-off
In United States v. Mastera, 435 F.3d 56, 61-62 (1st Cir.2006), defense counsel “more or less conceded” facts showing which part of the Massachusetts burglary statute the defendant violated. Reviewing the ACCA sentence for plain error, the First Circuit held the record showed a qualifying predicate offense. “It may be debatable whether the defendant‘s admission, which was not made during the plea colloquy for the original conviction, falls within the evidence permitted by Taylor and Shepard.” Id. at 62. “But it was not a ‘clear’ or ‘obvious’ transgression of the Shepard rule for the sentencing court to consider the admission (which was sufficient to justify a conclusion by the court that the conviction was for generic burglary).” Id.
At all points of this litigation Vincent has acknowledged that his
B.
Begay and Chambers create a two-part test for identifying violent offenses within the “otherwise” clause of
As for the first prong, possession of a sawed-off shotgun clearly presents a serious potential risk of physical injury to another. As interpreted by the Arkansas Supreme Court,
Second, this court must consider whether possession of a sawed-off shotgun is roughly similar, in kind as well as in degree of risk posed, to the offenses listed in
This court also relies on, as persuasive authority, the commentary to
In James, the Supreme Court cited, as persuasive authority,
This court concludes that possession of a sawed-off shotgun is similar, in kind as well as degree of risk posed, to the offenses listed in
The judgment of the district court is affirmed.
GRUENDER, Circuit Judge, dissenting.
The question presented in this case, as the Court defines it, is whether Vincent‘s 1994 conviction for possession of a sawed-off shotgun in violation of section 5-73-104 of the Arkansas Code qualifies as a “violent felony” under the Armed Career Criminal Act. In my view, the Supreme Court‘s decision in Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), compels us to find that simple possession of a sawed-off shotgun does not qualify as a violent felony because the crime itself does not involve violent and aggressive conduct. Because the Court reaches a contrary conclusion, I respectfully dissent.
The ACCA provides that a defendant who violates
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....
To decide whether a defendant‘s previous conviction qualifies as a violent felony, a court must first “choose the right category” in which to place the underlying crime. Chambers v. United States, 555 U.S. 122, 129 S.Ct. 687, 690, 172 L.Ed.2d 484 (2009). This so-called categorical approach requires a court “[to] consider the offense generically, that is to say, in terms of how the law defines the offense and not in terms of how an individual offender might
The Court correctly notes that the Arkansas statute under which Vincent was convicted prohibited possessing a sawed-off shotgun as well as using, making, repairing, selling, or otherwise dealing in a sawed-off shotgun. See
The kinds of behavior described in section 5-73-104 constitute different categories of criminal conduct that do not necessarily overlap with one another. For example, although a person must possess a sawed-off shotgun in order to use it, a person need not use a sawed-off shotgun in order to possess it or deal in it. Moreover, the different kinds of behavior described in section 5-73-104 pose varying degrees of risk to others. For example, using a sawed-off shotgun (e.g., firing it) is more likely to result in death or physical injury to another than simply possessing a sawed-off shotgun (i.e., without using it) or dealing in a sawed-off shotgun (e.g., selling it). Given these differences, I would find that section 5-73-104 defines at least three separate crimes: using a sawed-off shotgun, possessing a sawed-off shotgun, and dealing in a sawed-off shotgun.7 On the present record, it is not possible to determine which of these crimes Vincent committed, for Vincent was charged with unlawfully using, possessing, or dealing in a sawed-off shotgun.8 Accordingly, I would vacate Vincent‘s sentence and remand to allow the district court to decide, in the first instance, the particular crime that underlies Vincent‘s previous conviction. Cf. Williams, 537 F.3d at 973 (remanding to
The Court purports to isolate the crime of possessing a sawed-off shotgun from the other two crimes included in the charging document based on its observation that “[t]hroughout this litigation, all participants, including Vincent, have characterized the disputed conviction as possession of a sawed-off shotgun.” Ante at 824. On the contrary, our original opinion reported that “[c]ertified copies of the information and judgment establish that Vincent used or possessed [a sawed-off shotgun].” United States v. Vincent, 519 F.3d 732, 733 (8th Cir.2008) (emphasis added), vacated, 555 U.S. 1131, 129 S.Ct. 996, 173 L.Ed.2d 289 (2009); see also id. (suggesting that Vincent‘s previous conviction “involved his use of a sawed-off shotgun” (emphasis added)). In any event, the parties had no reason to quibble over the distinction between the crimes of using and possessing a sawed-off shotgun because, before Begay, that distinction would not have changed the outcome of the ACCA inquiry. Compare id. at 734 (holding that “Vincent‘s prior conviction for criminal use of a [sawed-off shotgun] is a violent felony“), with United States v. Allegree, 175 F.3d 648, 651 (8th Cir.1999) (holding that a conviction for possession of a sawed-off shotgun qualifies as a “crime of violence” under U.S.S.G. § 4B1.2, which we have interpreted to have the same meaning as the term “violent felony” under the ACCA), and United States v. Childs, 403 F.3d 970, 971 (8th Cir.2005) (holding that a juvenile conviction for “possession of a short-barreled shotgun is a violent felony“). After Begay, however, the distinction between the crimes of using and possessing a sawed-off shotgun becomes dispositive; for if Vincent was convicted of simple possession of a sawed-off shotgun—which itself does not involve violent and aggressive conduct—I am convinced that Begay compels us to find that his conviction does not qualify as a violent felony.
There is no dispute that Vincent‘s 1994 conviction qualifies as a felony because it was punishable by imprisonment for a term exceeding one year. See
Before Begay, our cases interpreting the residual clause “focused solely on the degree of risk of physical injury associated with a crime.” Williams, 537 F.3d at 972 (collecting cases). This approach is no longer permissible, notwithstanding our pre-Begay precedents, for the Supreme Court has made clear “that the degree of risk of physical injury is only half of the analysis.” Id. After Begay, a crime fits within the residual clause only if it “pose[s] a similar degree of risk of physical injury as the example crimes and [is] similar in kind to the example crimes.” Id. (empha-
I will assume that the Court is correct that the crime of possessing a sawed-off shotgun presents a serious potential risk of physical injury to another. See ante at 825-26. I will further assume that the Court is correct that the crime typically involves purposeful conduct, though I do not join the Court in suggesting that any mens rea requirement, including recklessness, is sufficiently similar to the purposeful conduct typically involved in committing the example crimes. See ante at 825-26. Despite these assumptions, I cannot agree with the conclusion that simple possession of a sawed-off shotgun involves violent and aggressive conduct.
The crux of the Court‘s explanation for its conclusion seems to be that, “[l]ike the listed crimes, possession of a sawed-off shotgun is illegal precisely because it enables violence or the threat of violence.” Ante at 825-26. In my view, the Court‘s explanation fails to answer the question we asked in Williams, Gordon, and our other post-Begay precedents: whether the crime itself typically involves violent and aggressive conduct. This subtle difference in terminology has significant consequences; after all, many crimes that do not themselves involve violent and aggressive conduct may nevertheless enable violence or the threat of violence.
Consider in this regard the crime of possessing explosives, which clearly enables violence or the threat of violence, yet does not appear to be sufficiently similar in kind to crimes involving use of explosives, which are among the comparators enumerated in the residual clause. Cf. United States v. Flores, 477 F.3d 431, 436 (6th Cir.2007) (“[T]ellingly, the [ACCA] provides that the use—rather than the possession—of explosives is conduct that rises to the level of a violent felony.“). The core difference between criminal use and criminal possession—whether of an explosive device or a sawed-off shotgun—is that use typically involves violent and aggressive conduct, while simple possession merely creates a potential for violence and aggression that is ordinarily realized only if possession ripens into use. In many instances, perhaps including Vincent‘s previous conviction, criminal possession never ripens into criminal use and so never results in violence or aggression. Even if criminal possession ripens into criminal use more often than not, that would not mean that possession itself involves violent and aggressive conduct, only that possession often precedes the separate crime of using a sawed-off shotgun, which typically does involve violent and aggressive conduct.9
Similarly, it may be true, as an empirical matter, that criminal possession of a sawed-off shotgun is frequently discovered in connection with a violent offense, such
In effect, the Court‘s holding risks expanding the ACCA‘s residual clause to include any crime that has a hypothetical connection to violence. Part of the conceptual difficulty may stem from the Supreme Court‘s introduction of the terms “violent” and “aggressive” in Begay without defining them or “explain[ing] in other than conclusory [language] why [the crime of driving under the influence] was not violent or aggressive.” United States v. Herrick, 545 F.3d 53, 58 (1st Cir.2008). The First Circuit has attempted to clear up the resulting confusion by announcing workable definitions of “violent” and “aggressive” that comport with the ordinary meaning of those terms. In particular, the court defined “violent” as “marked by extreme force or sudden intense activity,” id. (quoting Merriam-Webster‘s Collegiate Dictionary 1396 (11th ed.2003)), and defined “aggressive” as “tending toward or exhibiting aggression,” which the court in turn defined as “a forceful action or procedure (as an unprovoked attack)[,] esp[ecially] when intended to dominate or master,” id. (quoting Merriam-Webster‘s Collegiate Dictionary 24 (11th ed.2003)).
Once the question is properly framed and the relevant terms are expressly defined, it becomes plain that simple possession of a sawed-off shotgun itself does not involve violent and aggressive conduct in the manner of burglary, arson, extortion, or criminal use of explosives. Indeed, to say that simple possession of a weapon is “marked by extreme force or sudden intense activity” or exhibits “a forceful action ... intended to dominate or master” would strain the ordinary meaning of the terms violent and aggressive.11
Second, the Court relies on United States v. Zuniga, 553 F.3d 1330 (10th Cir.2009), petition for cert. filed, — U.S.L.W. — (U.S. Apr. 16, 2009) (No. 08-9944), a case in which “the Tenth Circuit held that a prisoner‘s possession of a weapon was roughly similar, in kind as well as in degree of risk, to the
For the foregoing reasons, I respectfully dissent.
Notes
It seems fundamentally unfair that an individual would be subjected to the enhancements of
The term “crime of violence” means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that- ... (2) 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.
[T]he term “violent felony” means any crime punishable by imprisonment for a term exceeding one year, ... that-... (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.
[t]he said defendant(s) in Pulaski County, on or about November 24, 1993, unlawfully, feloniously, did use, possess, or otherwise deal in any sawed-off shotgun, metal knuckles, or other implement for the infliction of serious physical injury or death which served no common lawful purpose, to wit: A SAWED-OFF SHOTGUN, against the peace and dignity of the State of Arkansas.