U.S. v. Amos

• Decision Date: 09 August 2007
• Docket Number: No. 06-5032.,06-5032.
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Aubrey Shante AMOS, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

501 F.3d 524

UNITED STATES of America, Plaintiff-Appellant, v. Aubrey Shante AMOS, Defendant-Appellee.

No. 06-5032.

United States Court of Appeals, Sixth Circuit.

Argued: January 31, 2007.

Decided and Filed: August 9, 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 Armed Career Criminal Act. The district court held that it does not and for the following reasons, we AFFIRM its decision.

I.

Defendant Aubrey Shante Amos was indicted for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). Amos pled guilty to the charge on August 5, 2005. The government sought an enhanced sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e), based on Amos's three prior convictions for (1) reckless endangerment, (2) possession of a sawed-off shotgun, and (3) possession of cocaine with intent to sell. At sentencing, defense counsel conceded that the prior convictions for reckless endangerment and for cocaine possession were predicate offenses under the ACCA, but challenged the use of the conviction for possession of a sawed-off shotgun as a predicate offense. According to the government, this conviction met the statutory definition of a violent felony because sawed-off shotguns must be registered under federal law, are inherently dangerous and lack a useful purpose, and because their possession presents a serious potential risk of injury to another. Defense counsel argued that mere possession of a firearm cannot amount to a violent felony.

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, held that "possession of a short-barrel firearm is not a [18 U.S.C.] § 16(b) `crime of violence.'" 327 F.3d 410, 414 (5th Cir.2003). As a result, the district court sentenced Amos without the ACCA enhancement, which would have required a minimum 15 year (180 month) sentence, and instead imposed a sentence of 120 months, followed by three years of supervised release. The government brought the present appeal from the district court's sentencing decision.

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 18 U.S.C. § 922(g), the felon in possession statute, and has three prior convictions for a violent felony or a serious drug offense. 18 U.S.C. § 924(e). The statute defines violent felony as follows:

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;

18 U.S.C. § 924(e)(2)(B). Because possession of a sawed-off shotgun is not one of the specifically named offenses (burglary, arson, or extortion), and does not involve the use of explosives or the threat of physical force against another person, it would only qualify as a predicate offense if it is deemed to be "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, Tenn.Code. Ann. § 39-6-1713, was apparently repealed in 1989, but included language prohibiting the possession of "any weapon of the kind commonly known as a sawed-off shotgun." The indictment simply stated that Amos

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 omitted)). Here, although the government sought to introduce the language of the indictment, this language appears to have simply traced the statutory prohibition without mentioning any additional facts regarding Amos's criminal conduct. As a result, the categorical approach is not irrelevant, but does not factor heavily into our analysis.

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, 18 U.S.C. § 16(b). The pertinent clause of section 16(b) includes within the crime of violence definition "any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." The clause "used in the course of committing the offense," which does not appear in the ACCA, narrows the section 16(b) definition and distinguishes it from that in the ACCA. The district court was therefore incorrect in its observation that Diaz-Diaz was indicative of a split of authority on the issue here. The government's position is confirmed by the Fifth Circuit's decision in Serna, where it found possession of a sawed-off shotgun to be a crime of violence under the Sentencing Guidelines, which unlike section 16(b) use almost identical language to that of the...