U.S. v. Hayes
| Decision Date | 09 June 1993 |
| Docket Number | No. 91-30432,91-30432 |
| Citation | 7 F.3d 144 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Demetrius Jerome HAYES, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Carol Koller, Asst. Federal Public Defender, Seattle, WA, for defendant-appellant.
Douglas B. Whalley, Gene Porter, Asst. U.S. Attys., Seattle, WA, for plaintiff-appellee.
Appeal from the United States District Court for the Western District of Washington.
Before WRIGHT, ALARCON, and BEEZER, Circuit Judges.
We must decide whether possessing an unregistered sawed-off shotgun is a crime of violence for purposes of the Career Offender provisions of the Sentencing Guidelines. We hold that it is and affirm Hayes' sentence.
A jury convicted Hayes of being a felon in possession of a firearm, 18 U.S.C. § 922(g), and possession of an unregistered sawed-off shotgun, 26 U.S.C. § 5861(d). Because the district court found that these were crimes of violence and that Hayes had two previous felony convictions for violent crimes, it sentenced him as a career offender. Hayes appeals his conviction and sentence. We affirmed his conviction in a separate memorandum disposition. Here, we address only his sentencing objection. Because we hold that possession of an unregistered sawed-off shotgun is a crime of violence, we need not decide whether being a felon in possession of a sawed-off shotgun is a crime of violence.
We review de novo the district court's interpretation of the Guidelines. United States v. Young, 990 F.2d 469, 471 (9th Cir.1993).
A defendant qualifies as a career offender if he is convicted of a felony that is a crime of violence and has two previous felony convictions for crimes of violence. U.S.S.G. § 4B1.1; Young, 990 F.2d at 470. Section 4B1.2(1) defines a crime of violence as a felony offense under federal or state law that "has as an element the use, attempted use, or threatened use of physical force against the person of another, or ... involves conduct that presents a serious potential risk of physical injury to another." Because the statutory definition of Hayes' unregistered shotgun conviction does not involve the use, attempted use or threatened use of physical force against another, we focus solely on whether the charged conduct presented a serious potential risk of physical injury to another. See Young, 990 F.2d at 471.
We conclude that in Hayes' case it does. As we said in United States v. Dunn, 946 F.2d 615, 621 (9th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 401, 116 L.Ed.2d 350 (1991), and United...
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...141 F.3d 1, 7 (1st Cir.1998) (possession of a sawed-off shotgun is violent felony under Armed Career Criminal Act); United States v. Hayes, 7 F.3d 144, 145 (9th Cir.1993) (possession of unregistered sawed-off shotgun is crime of violence under career offender guideline); United States v. Du......
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