U.S. v. Imes, 95-30025
| Decision Date | 05 April 1996 |
| Docket Number | No. 95-30025,95-30025 |
| Citation | 80 F.3d 1309 |
| Parties | 96 Cal. Daily Op. Serv. 2336, 96 Daily Journal D.A.R. 3931 UNITED STATES of America, Plaintiff-Appellee, v. Jerry Lee IMES, Jr., Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Stephen R. Hormel, Federal Defenders of Eastern Washington and Idaho, Spokane, Washington, for defendant-appellant.
Gregory M. Shogren, Assistant United States Attorney, Yakima, Washington, for plaintiff-appellee.
Appeal from the United States District Court for the Eastern District of Washington Alan A. McDonald, District Judge, Presiding. No. CR-94-02054-AAM.
Before: FLETCHER, JOHN T. NOONAN, Jr., and RYMER, Circuit Judges.
This appeal requires us to consider the impact of two recent Supreme Court opinions, Staples v. United States, --- U.S. ----, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994), and Bailey v. United States, --- U.S. ----, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), on the law of this circuit concerning possession of a sawed-off shotgun.
Jerry Lee Imes, Jr., argues that his conviction for possession of an unregistered firearm in violation of the National Firearms Act, 26 U.S.C. § 5861(d), cannot stand under Staples because the jury was not instructed that the government must prove his knowledge of the illegal features of the sawed-off shotgun he possessed. We conclude that a defendant is not entitled to such an instruction under Staples where, as here, the defendant knowingly possessed the firearm and the firearm is an obviously sawed-off shotgun. Because the characteristics of the weapon itself render it "quasi-suspect," Staples does not require proof that the defendant knew of the specific characteristics which make the weapon subject to the Act.
Imes also contends that the district court's imposition of a four-level enhancement at sentencing pursuant to U.S.S.G. § 2K2.1(b)(5) for "use[ ] or possess[ion][of] any firearm ... in connection with another felony" is infirm in light of Bailey. Bailey holds that a conviction under 18 U.S.C. § 924(c) for "use" of a firearm during and in relation to a drug crime cannot be sustained if the weapon was merely proximate and accessible, but instead requires evidence sufficient to show that the defendant actively employed the weapon in relation to the predicate offense. Bailey, --- U.S. at ----, 116 S.Ct. at 505. As the guidelines enhancement applies when the defendant has "possessed" (as well as "used") any firearm, we conclude that Bailey does not undermine our previous view that a firearm is within § 2K2.1(b)(5) when it had "some potential emboldening role in [the] defendant's felonious conduct." United States v. Routon, 25 F.3d 815, 819 (9th Cir.1994) (citations omitted). The standard adopted in Routon therefore continues to govern the "possess[ion] in connection with" prong of § 2K2.1(b)(5).
Since the evidence supports the judgment, and we have jurisdiction, 28 U.S.C. § 1291, we affirm.
On June 27, 1994, a Yakima County Deputy Sheriff discovered a car parked in the middle of Cowichee Mill Road. The lights were on, the motor was running, and Jerry Lee Imes, Jr., was unconscious behind the wheel. Upon learning that the car and its license plates were stolen, the deputy arrested Imes. During his search of the car, the deputy found a baggie of methamphetamine on the driver's side floorboard and a loaded sawed-off shotgun on the front seat. The shotgun measured 25 1/4 inches.
Imes was charged with possession of an unregistered firearm in violation of 26 U.S.C. § 5861(d), which provides that it is unlawful for any person "to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record." 26 U.S.C. § 5861(d). A sawed-off shotgun is a "firearm" for the purposes of § 5861(d) if "as modified [it] has an overall length of less than 26 inches...." 26 U.S.C. § 5845(a)(4). Imes admitted that he had possessed the sawed-off shotgun and that it was unregistered, but contended that he had not known that the sawed-off shotgun measured less than 26 inches.
Imes requested the following jury instruction:
Jerry Lee Imes has presented evidence that he did not know the firearm he possessed had an overall length less than that required by law. It is a defense to possession of an unregistered firearm that the person in possession did not know of the illegal characteristics of the firearm. The government must prove beyond a reasonable doubt that when Mr. Imes possessed the firearm, that he also knew about the characteristics of the firearm that made it illegal to possess. If the government failed to prove that he knew of the illegal characteristics of the firearm, then you must find Mr. Imes not guilty.
The court refused to give the proposed instruction, instead instructing the jury that:
[T]he government must prove each of the following elements beyond a reasonable doubt:
First, that on or about the date alleged in the indictment, the defendant possessed a weapon made from a shotgun that, as modified, had an overall length of less than 26 inches or a barrel length of less than 18 inches;
Second, that the defendant knowingly possessed the firearm; and
Third, that this firearm was not registered to the defendant in the National Firearms Registration and Transfer Record.
The court further instructed the jury that:
The only knowledge the government must prove is that the defendant knew he possessed a firearm. Knowledge that the firearm must be registered is not an element of the offense of possessing that firearm. It is no defense to Count 1 that the defendant did not know that the firearm must be registered, or that the defendant thought the firearm was a different length than it was.
The jury convicted Imes of possessing an unregistered firearm in violation of 26 U.S.C. § 5861(d). At sentencing, the district court imposed a four-level enhancement under U.S.S.G. § 2K2.1(b)(5) for use or possession of a firearm in connection with a felony. Imes timely appeals both the conviction and the sentence.
Imes argues that under Staples, he was entitled to a jury instruction that the government has the burden of proving the defendant's knowledge of the illegal features of a sawed-off shotgun, namely, that it was less than 26 inches in length. For the same reason, he contends that the court should have instructed on his theory of defense and that the evidence was insufficient to prove the mens rea element of a § 5861(d) offense. The government counters that the very nature of a sawed-off shotgun puts a defendant on notice of the possibility of regulation, and that Imes's possession of an obviously sawed-off shotgun puts this case squarely within the general rule that we embraced in United States v. O'Mara, 963 F.2d 1288, 1291 (9th Cir.1992). It further submits that neither of the exceptions we have previously recognized applies, see United States v. Herbert, 698 F.2d 981 (9th Cir.), cert. denied, 464 U.S. 821, 104 S.Ct. 87, 78 L.Ed.2d 95 (1983) (no external indicia), and United States v. Kindred, 931 F.2d 609 (9th Cir.1991) (not obviously dangerous), and that we should join the Eighth Circuit in holding that Staples does not require the government to prove that a defendant had knowledge of the illegal features of a sawed-off shotgun, see United States v. Barr, 32 F.3d 1320 (8th Cir.1994).
We start with O'Mara, which reflects our law before Staples. It involved a machine gun built and designed to fire in either fully automatic or semiautomatic mode by manipulation of a visible, external selection switch. O'Mara, 963 F.2d at 1289. The defendant asked for an instruction similar to the one Imes requested here--an instruction that the government must prove he knew he possessed a dangerous device of the type that might be regulated. Affirming the district court's refusal to give such an instruction, we followed the then-accepted general rule that "where the government proves that a defendant is in possession of a gun requiring registration, it need not prove that the defendant knew of the specific properties of the weapon that subject it to registration." O'Mara, 963 F.2d at 1291.
As O'Mara noted, we had recognized two narrow exceptions to the general rule. "The first exception applies if there are no external indicia to indicate the likelihood of regulation." United States v. Evans, 978 F.2d 1112, 1114 (9th Cir.1992) (emphasis in original) (citation omitted), cert. denied, --- U.S. ----, 114 S.Ct. 78, 126 L.Ed.2d 46 (1993). For example, in Herbert, we held that the government was required to prove knowledge of the characteristics of the weapon that subjected it to regulation because the weapon--a semi-automatic firearm--had been internally modified into an automatic and thus did not appear to be what it actually was, a weapon subject to regulation. Herbert, 698 F.2d at 987. "The second exception arises where a firearm is inoperable and obviously not dangerous." Evans, 978 F.2d at 1114 (emphasis in original) (citation omitted). This exception is illustrated by Kindred, in which the defendant possessed an inoperable World War I vintage machine gun. Kindred, 931 F.2d at 612. In these circumstances the defendant is not alerted to the likelihood that the weapon is regulated, and is entitled to defend on the ground that he was mistaken about what the weapon really is.
There is little question that a sawed-off shotgun falls within O'Mara 's general rule and does not fit within either exception. A sawed-off shotgun's defining characteristic is obvious and there is no dispute about its dangerousness. See, e.g., Herbert, 698 F.2d at 986 (); United States v. Thomas, 531 F.2d 419, 423 (9th Cir.) (Hufstedler, J., dissenting) (...
To continue reading
Request your trial
-
U.S. v. Polanco
...(9th Cir.1996).Although Bailey 's impact on our interpretation of "use" under U.S.S.G. § 2K2.1(b)(5) was addressed in United States v. Imes, 80 F.3d 1309 (9th Cir.1996), that opinion was subsequently withdrawn on other grounds, United States v. Imes, 91 F.3d 1210 (9th Cir.1996).We are aware......
-
U.S. v. Dewalt
...199 (7th Cir.1996); United States v. Mains, 33 F.3d 1222 (10th Cir.1994); United States v. Imes, 91 F.3d 1210 (9th Cir.1996), vacating 80 F.3d 1309, but the Government's express and unequivocal concession on this point leaves us without occasion to rule otherwise. Dewalt says that the distr......
-
U.S. v. Gergen, 97-30324
...shortened barrel of a sawed-off shotgun creates a reasonable expectation that the firearm is subject to regulation in United States v. Imes, 80 F.3d 1309 (9th Cir.1996). However, Imes was subsequently withdrawn by 91 F.3d 1210 (9th Cir.1996), and this panel considers the ramification of Sta......
-
People v. Dingman
...defendant knew gun was loaded where crime of knowingly permitting another person to bring firearm into vehicle was charged]; U.S. v. Imes (9th Cir.1996) 80 F.3d 1309 [prosecution need not prove defendant knew characteristics of sawed-off shotgun he knowingly possessed].)5 Defendant points o......