68 F.3d 1222 (9th Cir. 1995), 94-10542, United States v. Amparo

Docket Nº:94-10542.
Citation:68 F.3d 1222
Party Name:D.A.R. 14,576 UNITED STATES of America, Plaintiff-Appellee, v. Raniel Bonifacio AMPARO, Defendant-Appellant.
Case Date:October 31, 1995
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1222

68 F.3d 1222 (9th Cir. 1995)

D.A.R. 14,576

UNITED STATES of America, Plaintiff-Appellee,

v.

Raniel Bonifacio AMPARO, Defendant-Appellant.

No. 94-10542.

United States Court of Appeals, Ninth Circuit

October 31, 1995

Argued and Submitted Aug. 14, 1995.

Page 1223

Kristine K. Smith, Assistant Federal Public Defender, Reno, Nevada, for defendant-appellant.

Robert A. Bork, Assistant United States Attorney, Reno, Nevada, for plaintiff-appellee.

Appeal from the United States District Court for the District of Nevada.

Before: FLETCHER, POOLE, and O'SCANNLAIN, Circuit Judges.

FLETCHER, Circuit Judge:

Defendant Raniel Bonifacio Amparo appeals from his jury convictions on federal firearms charges. On appeal he argues that the district court erred by instructing the jury that as a matter of law possession of an unregistered sawed-off shotgun is a crime of violence under 18 U.S.C. Sec. 924(c)(3)(B). We affirm.

I. FACTS AND PRIOR PROCEEDINGS

An undercover ATF agent arrested Amparo after feigning purchase of a sawed-off shotgun from him. At the time of his arrest, Amparo was carrying a loaded pistol. The shotgun was disassembled but operable when assembled.

Amparo was indicted on two counts. Count I charged Amparo with possession of an unregistered firearm (the disassembled sawed-off shotgun) in violation of 26 U.S.C. Sec. 5861(d). Count II charged Amparo with carrying a firearm (the loaded pistol) in relation to a crime of violence in violation of 18 U.S.C. Sec. 924(c)(1).

At trial, the district court gave the jury the following instructions with respect to Count II:

In order to prove the offense charged in Count Two of the Indictment, the government must prove the following essential elements beyond a reasonable doubt:

One: the defendant committed the crime of possession of a sawed-off shotgun as charged in Count One of the Indictment, and

Two: during and in relation to the commission of that crime, the defendant knowingly used or carried a firearm.

Over the defendant's objection, the district court determined as a matter of law that possession of an unregistered sawed-off shotgun is a crime of violence under 18 U.S.C.

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Sec. 924(c)(3)(B). The trial judge instructed the jury:

The term "crime of violence" means an offense that is a felony and has as one of its essential elements the use, attempted use, or threatened use of physical force against the person or property of another, or an offense that by its very nature involves a substantial risk that such physical force may be used in committing the offense.

The offense alleged in Count One of the Indictment, Possession of a Sawed-Off Shotgun, is a crime of violence.

The jury found Amparo guilty on both counts. Amparo was sentenced to thirty-seven months on Count I and a consecutive sentence of sixty months on Count II. This timely appeal followed.

II. JURISDICTION

The district court had jurisdiction under 18 U.S.C. Sec. 3231. This court has jurisdiction over the district court's final judgment pursuant to 28 U.S.C. Sec. 1291.

III. STANDARD OF REVIEW

"[W]hether a jury instruction misstated elements of a statutory crime is a question of law and is reviewed de novo." United States v. Spillone, 879 F.2d 514, 525 (9th Cir.1989), cert. denied, 498 U.S. 864, 111 S.Ct. 173, 112 L.Ed.2d 137 (1990); see...

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