U.S.A v. Mcgill

• Decision Date: 08 September 2010
• Docket Number: No. 09-14167.,09-14167.
• Citation: 618 F.3d 1273
• Parties: UNITED STATES of America, Plaintiff-Appellant,v.Robert L. McGILL, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

618 F.3d 1273

UNITED STATES of America, Plaintiff-Appellant,v.Robert L. McGILL, Defendant-Appellee.

No. 09-14167.

United States Court of Appeals Eleventh Circuit.

Sept. 8, 2010.

Patricia D. Barksdale, Jacksonville, FL, Linda Julin McNamara, Asst. U.S. Atty., Tampa, FL, Peggy Morris Ronca, Asst. U.S. Atty., Orlando, FL, for U.S.

Rosemary T. Cakmis, Fed, Pub. Def., Orlando, FL, Adam Benjamin Allen, Asst Fed. Pub. Def., Donna Lee Elm, Fed. Pub. Def., Tampa, FL, for Defendant-Appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before BLACK, HULL and KRAVITCH, Circuit Judges.

PER CURIAM:

The Armed Career Criminal Act (ACCA) prescribes a 15-year mandatory minimum sentence for any person who has “three previous convictions ... for a violent felony” and possesses a firearm in violation of 18 U.S.C. § 922(g). 18 U.S.C. § 924(e)(1). Robert McGill pleaded guilty to violating § 922(g)(1), and in light of his three prior felony convictions, the Government asked the district court to sentence him as an armed career criminal. The court refused, and the Government raises this question on appeal: Was McGill's prior felony possession of a short-barreled shotgun a “violent felony” under the ACCA?

I. BACKGROUND

Robert McGill, a convicted felon, pleaded guilty to the unlawful possession of a firearm by a felon under 18 U.S.C. § 922(g)(1). Because McGill had previous felony convictions for burglary, false imprisonment, and the unlawful possession of a short-barreled shotgun, the probation officer recommended that he be sentenced under the ACCA as an armed career criminal.

A convicted § 922(g) defendant is subject to the ACCA's 15-year mandatory minimum only if he has at least three previous convictions for violent felonies (or serious drug offenses) committed on separate occasions. 18 U.S.C. § 924(e)(1). As defined by statute,¹ violent felonies include any crime, punishable by more than a year's imprisonment, that (i) “has as an element” the actual, attempted, or threatened use of force against another person; 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.” Id. § 924(e)(2)(B) (emphasis added).

McGill objected to the proposed ACCA enhancement on the ground that his possession of a short-barreled shotgun, in violation of Florida law, did not qualify as a violent felony.² He argued that under the Supreme Court's decision in Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), possessing a short-barreled shotgun did not fall within the ACCA's residual “otherwise” clause because the offense was not similar to the example crimes in § 924(e)(2)(B)(ii)-namely, burglary, arson, extortion, and the unlawful use of explosives.

The district court agreed with McGill and sentenced him to 41 months' imprisonment. On appeal, the Government argues that both Florida and federal law (1) differentiate short-barreled shotguns from ordinary firearms; (2) regulate short-barreled shotguns in the same category as machine guns, bombs, and grenades; and (3) outlaw them because such weapons are inherently dangerous, have no lawful purpose, and are used only for criminal purposes; and, therefore, (4) the possession of such a weapon is properly considered a violent felony. The Government asks us to remand the case for resentencing in accordance with the ACCA's 15-year mandatory minimum.

II. BEGAY'S THREE-STEP ANALYSIS

“Whether a particular conviction is a violent felony for purposes of the ACCA is a question of law we consider de novo,” United States v. Canty, 570 F.3d 1251, 1254 (11th Cir.2009), and we answer that question as it pertains to the statute's residual clause in three steps. United States v. Harrison, 558 F.3d 1280, 1287 (11th Cir.2009). First, “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.” Begay, 553 U.S. at 141, 128 S.Ct. 1581; see also Taylor v. United States, 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) (“[Section] 924(e) mandates a formal categorical approach, looking only to the statutory definitions of the prior offenses, and not to the particular facts underlying those convictions.”); United States v. Whitson, 597 F.3d 1218, 1220-21 (11th Cir.2010) (“In residual cases like Harrison-and Whitson's case, here-we look to the language of the statute itself to discern an offense's elements and to determine how it is ‘generically’ committed.”); Harrison, 558 F.3d at 1290-92.

Second, we determine whether the generic offense “involves conduct that ‘presents a serious potential risk of physical injury to another.’ ” Begay, 553 U.S. at 141, 128 S.Ct. 1581 (quoting 18 U.S.C. § 924(e)(2)(B)(ii)). Third, if the offense does present such a risk, we classify it as a violent felony only if it is “roughly similar, in kind as well as in degree of risk posed,” to the clause's example crimes: burglary, arson, extortion, and the unlawful use of explosives. Id. at 143, 128 S.Ct. 1581.

Beginning with the first step of the analysis, we observe that McGill's prior conviction for possessing a short-barreled shotgun arose under Florida law, which makes it a felony “for any person to own or to have in his or her care, custody, possession, or control any short-barreled rifle, short-barreled shotgun, or machine gun which is, or may readily be made, operable.” Fla. Stat. § 790.221(1).³ The statute requires knowledge of possession. See C.W.C. v. State, 334 So.2d 275 (Fla.Dist.Ct.App.1976). Thus, Florida bans the knowing possession of a short-barreled shotgun.⁴

The Florida statute does contain one exception to its ban. Florida excepts “[f]irearms in violation hereof which are lawfully owned and possessed under provisions of federal law.” Fla. Stat. § 790.221(3). Therefore, we also examine if McGill lawfully possessed this weapon under federal law. Federal law, by way of the National Firearms Act (“NFA”), regulates a narrow class of weapons, termed “firearms,” that includes short-barreled shotguns, machine guns, grenades, bombs, and explosives. See 26 U.S.C. § 5845(a). As discussed later, the NFA did not permit McGill to possess, or even to register, this NFA prohibited weapon. See 26 U.S.C. §§ 5841(b), (c); 5845(a)-(f), 5861(b)-(d).

McGill pled guilty to the Florida offense. Generically defined, then, the offense underlying McGill's conviction was his knowing possession of a short-barreled shotgun outlawed by both Florida and federal law.

The second step of the residual-clause analysis requires us to determine whether possessing an outlawed short-barreled shotgun “involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii). On this point, this Court has already held that the illegal possession of an unregistered, seven-inch-barrel rifle, in violation of the NFA, is a “crime of violence” for the purposes of the U.S. Sentencing Guidelines' career-offender enhancement, U.S.S.G. § 4B1.1. United States v. Owens, 447 F.3d 1345 (11th Cir.2006).⁵ In reaching that conclusion, the Court was required to find that possession of the weapon presented a serious risk of potential injury to another. The Owens Court pointed out that “Congress determined that the unregistered possession of the particular firearms regulated under the NFA should be outlawed because of the ‘the virtual inevitability that such possession will result in violence.’ ” Id. at 1347 (quoting United States v. Jennings, 195 F.3d 795, 799 (5th Cir.1999)).

Our holding in Owens-“that the possession of certain kinds of weapons categorically presents the potential risk of physical injury warranting [the] sentence enhancement for ... a crime of violence,” 447 F.3d at 1347-thus compels the conclusion that possessing an unregistered short-barreled shotgun “involves conduct that presents a serious potential risk of physical injury to another” under the ACCA. 18 U.S.C. § 924(e)(2)(B)(ii).⁶ But Owens does not fully answer the question presented in this appeal. Our holding there depended on a two-step inquiry: we considered the offense categorically and then determined that the possession of particular unregistered weapons, such as a short-barreled rifle, poses a serious risk of physical injury to others. See Owens, 447 F.3d at 1347.

When the Supreme Court later decided Begay, it added a third step: “[W]e should read the [ACCA's] examples as limiting the crimes that [the clause] covers to crimes that are roughly similar, in kind as well as in degree of risk posed, to the examples themselves.” 553 U.S. at 143, 128 S.Ct. 1581. The question here is whether unregistered short-barreled shotgun possession in violation of Florida law and the NFA survives Begay's third step. In other words, is possessing an outlawed short-barreled shotgun “roughly similar, in kind as well as degree of risk posed” to burglary, arson, extortion, and the unlawful use of explosives?

In arguing that possession of an unregistered sawed-off shotgun passes Begay's third step in the violent-felony analysis the Government asserts that: (1) McGill's prior weapons offense is “purposeful” because it must be “knowing” under the Florida statute; (2) McGill's knowingly acquiring an NFA-prohibited weapon in itself evinces aggressive and violent conduct; (3) the sight of a short-barreled shotgun, like a bomb, is threatening; (4) possession of a short-barreled shotgun is a “crime of violence” under U.S.S.G. §§ 4B1.1 and 4B1.2, and the same result applies under the ACCA ⁷; and (5) post- Begay the Eighth Circuit held sawed-off shotgun possession is a “violent felony” under the ACCA because “[p]ossession of a weapon that has only unlawful purposes makes it ‘more likely that an offender, later possessing a gun, will use that gun deliberately to harm a...