USA v. Lipscomb

• Decision Date: 13 September 2010
• Docket Number: No. 09-10240.,09-10240.
• Citation: 619 F.3d 474
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Eddie Lamont LIPSCOMB, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

619 F.3d 474

UNITED STATES of America, Plaintiff-Appellee,

v.Eddie Lamont LIPSCOMB, Defendant-Appellant.

No. 09-10240.

United States Court of Appeals,Fifth Circuit.

Sept. 13, 2010.

COPYRIGHT MATERIAL OMITTED.

Brandon Nelson McCarthy, Asst. U.S. Atty. (argued), Dallas, TX, for U.S.

William Reynolds Biggs, Asst. Fed. Pub. Def. (argued), Dallas, TX, for Lipscomb.

Appeal from the United States District Court for the Northern District of Texas.

Before KING, JOLLY and STEWART, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Eddie Lamont Lipscomb appeals his sentence enhancement under U.S.S.G. § 4B1.1, arguing that his instant conviction for possessing a firearm as a felon under 18 U.S.C. § 922(g) does not qualify as a crime of violence. Because Lipscomb pleaded guilty to a single-count indictment expressly charging him with possessing a sawed-off shotgun, a crime of violence, we affirm.

I.

Lipscomb pleaded guilty to a single-count indictment charging him with possessing a firearm as a felon, see 18 U.S.C. § 922(g), and charging him as an armed career criminal, see § 924(e). The indictment described the weapon as “a Harrington and Richardson, model 88, 20 gauge shotgun, ... as modified having a barrel of less than 18 inches in length, and overall length of less than 26 inches, a weapon commonly known as a ‘sawed-off’ shotgun.” ¹ Based on this plea of guilty to possessing a sawed-off shotgun as a felon and his prior offenses, his presentence report classified him as a career offender under § 4B1.1, subjecting him to an enhanced sentence totaling 292 to 365 months of imprisonment and three to five years of supervised release. Lipscomb objected. In addition to moving for a variance, Lipscomb argued that the § 4B1.1 career offender enhancement did not apply to him, because the instant offense was not a crime of violence. Specifically, he argued that the categorical method as set forth in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and progeny prevented the sentencing court from considering how the defendant committed the crime. Although the gun was, as alleged in the indictment, a sawed-off shotgun, his conviction was not for a crime of violence, he argues, because § 922(g) has no element requiring proof of a specific type of gun. Furthermore, the district court improperly relied on testimony from a police officer who described the weapon as a sawed-off shotgun.

The district court concluded that the § 922(g) conviction was a crime of violence and that the career offender provisions of § 4B1.1 applied. The district court did, however, grant a variance, sentencing Lipscomb to 240 months in prison and five years of supervised release. When asked by the government whether it would give the same sentence had § 4B1.1 not applied, the district court replied that it would want to reconsider its sentence if the enhancement did not apply. Lipscomb timely appealed.

II.

“Characterizing an offense as a crime of violence is a purely legal determination,” which we review de novo. United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir.2008); United States v. Guevara, 408 F.3d 252, 261 n. 10 (5th Cir.2005).

Turning to this case, the Sentencing Guidelines call for an enhanced sentence for defendants who, like the defendant here, (1) are at least eighteen years old at the time of the instant conviction, (2) are currently being sentenced for a crime of violence or a controlled substance offense, and (3) have at least two prior convictions for either crimes of violence or controlled substance offenses. U.S.S.G. § 4B1.1(a). Lipscomb acknowledges that he meets criteria (1) and (3). The question in this case is whether Lipscomb's instant conviction is a crime of violence.

For our purposes today, a crime is a crime of violence if it is an “offense under federal ... law, punishable by imprisonment for a term exceeding one year, that ... otherwise involves conduct that presents a serious potential risk of physical injury to another.” § 4B1.2(a)(2). ² To determine whether a crime is a crime of violence, we consider only “conduct ‘set forth in the count of which the defendant was convicted,’ ” but may not consider any other evidence to determine the conduct underlying the instant offense. United States v. Fitzhugh, 954 F.2d 253, 254 (5th Cir.1992) (quoting U.S.S.G. § 4B1.2 Application Note 1). Therefore, the district court erred by considering testimony as to the weapon's characteristics to be relevant, but the error was harmless. As noted above, Lipscomb's single-count indictment, which the district court could consider, alleges that he possessed a sawed-off shotgun. The only remaining question is whether possessing such a weapon, “by its nature, presented a serious potential risk of physical injury.” United States v. Insaulgarat, 378 F.3d 456, 467 (5th Cir.2004). We think that the Sentencing Commission's commentary to § 4B1.2 answers that for us. Stinson v. United States, 508 U.S. 36, 44-45, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993) (holding that commentary to the guidelines is “treated as an agency's interpretation of its own legislative rule”). ³ “Unlawfully possessing a firearm described in 26 U.S.C. § 5845(a) ( i.e., a sawed-off shotgun ...) is a crime of violence.” U.S.S.G. § 4B1.2 Application Note 1. ⁴ Accordingly, as per the specific allegations of the indictment and his plea of guilty to those charges, Lipscomb's § 922(g) conviction is for a crime of violence.

Lipscomb argues otherwise, asserting that applying the categorical analysis his conviction under § 922(g) only required that the government prove that he possessed a gun-nothing more. We reject Lipscomb's argument that we must apply the categorical approach crafted by the Supreme Court in Taylor and its progeny. ⁵ Such a rule would require the sentencing court to use the indictment only to determine the statutory phrase that is the basis of conviction. Thus, he argues, his conviction is only for possessing a “firearm,” as the statute proscribes; his conviction is not for possessing a sawed-off shotgun, as the indictment's language charges. This argument ignores the fact that Taylor and its progeny were decided under the Armed Career Criminal Act and did not involve the application of-or even mention-the specific Guidelines commentary at issue here. The commentary, which applies in this case, specifically treats unlawful possession of a firearm by a felon as a crime of violence when the weapon is a sawed-off shotgun. Id. Lipscomb's proposed standard, if applied here, would render the commentary meaningless for § 922(g) offenses. We do not think the Sentencing Commission intended its commentary to have such an effect. Moreover, had the Sentencing Commission intended the sentencing court to be bound by the statute of conviction, its reference in Application Note 1 to the “ conduct set forth ( i.e., expressly charged) in the count of which the defendant was convicted” would be superfluous. See id. (emphasis added). Thus, applying the commentary of § 4B1.2, as we must, we hold that this conviction, resulting from a plea to an indictment count that specifically charged possession of a sawed-off shotgun as a felon, is for a crime of violence.

III.

To recap, we hold that for the purpose of § 4B1.2, a conviction is for a crime of violence when the defendant pleads guilty to an indictment count that alleges conduct that presents a serious potential risk of injury to another. Lipscomb, in pleading guilty to an indictment charging him with violating 18 U.S.C. § 922(g) by possessing a sawed-off shotgun-a crime of violence, according to the Guidelines commentary-did just that. The judgment of the district court is

AFFIRMED.

KING, Circuit Judge, concurring in the judgment:

I agree with Judge Jolly that Lipscomb's offense of conviction (his instant offense)-being a felon in possession, in violation of 18 U.S.C. § 922(g)(1)-was a “crime of violence,” as defined by U.S.S.G. § 4B1.2(a)(2). Accordingly, I concur in the judgment affirming his sentence. However, I write separately for two reasons. First, I write to clarify my agreement with Judge Jolly that an elements-based categorical approach is inappropriate here. Second, I explain my disagreement with my colleagues' determination that the district court erred when it made a post-plea factual finding to determine that the gun Lipscomb possessed was a sawed-off shotgun as described in 26 U.S.C. § 5845(a). ¹ Unlike my colleagues, I conclude that the district court committed no error in making that determination through a factual finding at sentencing.

In reaching his conclusion that a felon-in-possession conviction is not a crime of violence under § 4B1.2(a)(2), Judge Stewart applies the categorical approach outlined in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and its progeny. Under that approach, a sentencing court may “look only to the fact of conviction and the statutory definition of the ... offense,” id. at 602, 110 S.Ct. 2143, except that, “whenever a statute provides a list of alternative methods of commission ... [,] we may look to charging papers to see which of the various statutory alternatives are involved in the particular case,” United States v. Calderon-Pena, 383 F.3d 254, 258 (5th Cir.2004) (en banc) (per curiam). In making this determination where the conviction was reached by plea, “we may consider the statement of factual basis for the charge, a transcript of the plea colloquy or written plea agreement, or a record of comparable findings of fact adopted by the defendant upon entering the plea regarding the ... offense[ ].” United States v. Mohr, 554 F.3d 604, 607 (5th Cir.2009) (citing Shepard v. United States, 544 U.S. 13, 20, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005)). Because 18 U.S.C. § 922(g)(1) forbids a felon such as Lipscomb from possessing any firearm, there is no “statutory alternative[ ]” forbidding only the possession of a...