U.S. v. Serafin

• Decision Date: 14 April 2009
• Docket Number: No. 07-8086.,07-8086.
• Citation: 562 F.3d 1105
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Richard SERAFIN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

562 F.3d 1105

UNITED STATES of America, Plaintiff-Appellee, v. Richard SERAFIN, Defendant-Appellant.

No. 07-8086.

United States Court of Appeals, Tenth Circuit.

April 14, 2009.

Ronald G. Pretty, Cheyenne, WY, for Defendant-Appellant.

Gregory A. Phillips, Assistant United States Attorney (Kelly H. Rankin, United States Attorney, and David A. Kubichek, Assistant United States Attorney, United States Attorney's Office, Casper, WY, with him on the brief) United States Attorney's Office, Cheyenne, WY, for Plaintiff-Appellee.

Before KELLY, TYMKOVICH, Circuit Judges, and DeGIUSTI, District Judge.^*

TYMKOVICH, Circuit Judge.

Richard Serafin brings this direct appeal challenging his conviction for possessing a weapon in furtherance of a crime of violence and the commensurate mandatory 60-month sentence. Serafin contends possession of an unregistered weapon, in violation of 26 U.S.C. §§ 5841, 5845(a), 5861(d) and 5871, does not constitute a crime of violence under 18 U.S.C. § 924(c)(1).

Having jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we agree and therefore REVERSE Serafin's conviction on the § 924(c)(1) count and REMAND for further proceedings.

I. Background

An investigation by the United States Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) identified Serafin as an individual who may be involved in the illegal weapons trade. The ATF initiated a sting operation to determine the extent of Serafin's involvement in the purchase and sale of unlawful weapons in interstate commerce. As part of this sting, an ATF Special Agent contacted and met Serafin on several occasions between October 2006 and February 2007. The ATF gathered a significant amount of evidence of Serafin's involvement in the weapons trade, obtained arrest and search warrants, and decided to arrange a weapons purchase.

After Serafin agreed to sell an "Eagle Arms AR15" assault rifle, he met with an undercover ATF agent at Serafin's apartment. During this meeting, Serafin presented the agent a box containing the upper receiver and barrel of the rifle, and a black canvas case with the lower receiver and several magazines for ammunition. The agent paid Serafin the agreed upon money and left. ATF agents then lured Serafin out of his apartment and arrested him. Both during the course of the transaction and at the time of his arrest, Serafin was armed with a 45-caliber "SIG Sauer TM" pistol. Also, after executing the search warrant for Serafin's residence, the ATF agents discovered another AR15-type assault rifle and a silencer.

Based on these events, Serafin was indicted on two counts. The first count charged that Serafin violated the National Firearms Act because he

knowingly possessed firearms as defined by 26 U.S.C. § 5845(a), that is, an Eagle Arms (or Armalite), AR15 type, .223 caliber assault rifle, ... with a barrel length of less than 16 inches, a Rock River, AR15 type, .223 caliber assault rifle, ... with a barrel length of less than 16 inches, and a silver colored, metal silencer; which said firearms were not registered to him in the National Firearms Registration and Transfer Record,

in violation of 26 U.S.C. §§ 5841, 5845(a), 5861(d) and 5871.¹ R., Vol. I, Doc. 9 at 1-2. The second count charged Serafin with unlawfully possessing a firearm in furtherance of a crime of violence, namely his possession of an unregistered weapon in violation of 18 U.S.C. § 924(c)(1). Id. at 2.

Serafin pleaded guilty to the first count of the indictment and was convicted after a jury trial on the second count. Specifically, the jury found Serafin had in fact possessed a SIG Sauer pistol during, and in furtherance of, his possession and transfer of the unregistered Eagle Arms rifle-the charge to which Serafin had already pleaded guilty.

The district court sentenced him to 18 months' imprisonment on Count One² and to the mandatory 60-month term on Count Two, with the sentences to run consecutively.

II. Discussion

Serafin raises three issues in his appeal: (1) that the district court erred in holding possession and transfer of an unregistered weapon qualified as a crime of violence under § 924(c)(3)(B); (2) that the mandatory sentencing provisions of § 924(c) conflict with United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007), and with the requirement that the district court perform an individualized analysis of the 18 U.S.C. § 3553(a) factors at sentencing; and (3) that the district court abused its discretion in denying his motion for a mistrial after alleged prosecutorial misconduct. Because we conclude possession of an unregistered short-barreled rifle does not qualify as a crime of violence under § 924(c)(1) and reverse his conviction on that charge, we need not reach the merits of his last two contentions.

We review the district court's legal conclusion that a particular offense constitutes a crime of violence de novo. United States v. Munro, 394 F.3d 865, 870 (10th Cir.2005). Additionally, we review the district court's interpretation of § 924(c) de novo. United States v. Bowen, 527 F.3d 1065, 1072 (10th Cir.2008).

A. Possession of an Unregistered Weapon as a Crime of Violence Under Section 924(c)(3)(B)

Serafin contends the district court erred in concluding that possession of an unregistered weapon, a violation of the NFA, constituted a crime of violence under § 924(c)(3)(B). Serafin argues possession of the short-barrel, disassembled rifle, without a commensurate intent to use the weapon in the course of committing another crime, does not raise the requisite statutorily required risk of force during the course of the possession. We agree.

1. Statutory Framework

To resolve whether possession of an unregistered weapon is a crime of violence under § 924(c)(3)(B), we must parse several statutes defining crimes of violence and the case law analyzing them.

Before turning to the statutory language itself, the Supreme Court requires that we employ a "categorical approach." Munro, 394 F.3d at 870 (citing Taylor v. United States, 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)). Under the categorical approach, we look "only to the fact of conviction and the statutory definition of the prior offense, and do not generally consider the particular facts disclosed by the record of conviction. That is, we consider whether the elements of the offense are of the type that would justify its inclusion ... [as a crime of violence], without inquiring into the specific conduct of this particular offender." United States v. West, 550 F.3d 952, 957 (10th Cir.2008) (citations and quotations omitted). Applying the categorical approach here, we are bound only to analyze the text of § 924(c)(3)(B) and 26 U.S.C. § 5861(d).

Section 924(c)(1)(A) provides: "any person who, during and in relation to any crime of violence ... for which the person may be prosecuted ..., uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall ... be sentenced to a term of imprisonment of not less than 5 years." (emphasis added). For the purposes of this section, a "crime of violence" is "an 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."³ § 924(c)(3)(B) (emphasis added). Thus, our task is to determine whether "receiv[ing] or possess[ing] a firearm which is not registered ... in the National Firearms Registration and Transfer Record," 26 U.S.C. § 5861(d), constitutes a crime of violence.

The crime of violence language of § 924(c)(3)(B) tracks identical language contained in 18 U.S.C. § 16(b).⁴ See § 16(b) (stating a crime of violence is an offense 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") (emphasis added).

The Supreme Court has yet to interpret the crime of violence language in § 924(c)(3)(B), but it has interpreted the language in § 16(b). In Leocal v. Ashcroft, 543 U.S. 1, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004), the Supreme Court limited the scope of § 16(b) to include only those "offenses that naturally involve a person acting in disregard of the risk that physical force might be used against another in committing an offense." Id. at 10, 125 S.Ct. 377. The Court explained that the risk "relates not to the general conduct or to the possibility that harm will result from a person's conduct, but to the risk that the use of physical force against another might be required in committing the crime." Id. (first emphasis in original, second emphasis added). Further, the Court specifically noted that the ordinary meaning of § 16(b) suggests a "category of violent, active crimes." Id. at 11, 125 S.Ct. 377. Therefore, to qualify as a crime of violence the offense must proscribe conduct which not only (1) naturally involves a disregard of a substantial risk of force against another, but also (2) where such risk of force arises during the course of committing the offense—a violent, active offense. Id. at 10-11, 125 S.Ct. 377.

Two other provisions are noteworthy in this analysis. The first, 18 U.S.C § 924(e)(2)(B), defines a "violent felony"— for purposes of the Armed Career Criminal Act (ACCA)—as "burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another." The Supreme Court interpreted this language in Begay v. United States, ___ U.S. ___, 128 S.Ct. 1581, 1586, 170 L.Ed.2d 490 (2008), concluding that for an offense to qualify as a violent felony it must involve, among other things, "purposeful, violent, and aggressive conduct." (internal quotation marks omitted).

The second, section 4B1.2 of the United States Sentencing Guidelines (USSG), is congruent...