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No. 13-201
In the Supreme Court of the United States ________________
ROY HINKLEY,
Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.
_____________________
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRTEENTH CIRCUIT
BRIEF FOR THE RESPONDENT
Counsel for the Respondent
March 5, 2013
ELON UNIVERSITY SCHOOL OF LAW BILLINGS, EXUM, & FRYE NATIONAL MOOT COURT COMPETITION
Team 3
i
TABLE OF CONTENTS
TABLE OF CONTENTS ...................................................................................................................... i TABLE OF AUTHORITIES ................................................................................................................ ii QUESTIONS PRESENTED ................................................................................................................ iv OPINIONS BELOW........................................................................................................................... v STATEMENT OF FACTS ................................................................................................................... 1 SUMMARY OF THE ARGUMENT ...................................................................................................... 3 ARGUMENT ..................................................................................................................................... 4
I. THE THIRTEENTH CIRCUIT CORRECTLY HELD THAT THE PROTECTIVE SWEEP OF HINKLEY’S RESIDENCE WAS LAWFUL UNDER THE FOURTH AMENDMENT. ........................ 4
A. The search of Hinkley’s residence should be evaluated under the Fourth Amendment’s general proscription against unreasonable searches and seizures............................................................. 6
B. Under this Court’s decisions in Terry, Long, and Buie, protective sweeps should be permissible when law enforcement personnel have lawfully entered a residence. ......................................... 7
C. The protective sweep of Hinkley’s residence is lawful under the balancing test in Terry and reasonable suspicion standard in Buie. ...................................................................................... 12
1. Officer Sanford’s interest in ensuring both his and Hinkley’s safety justified the protective sweep of Hinkley’s residence. ............................................................................................................................... 12
2. Office Sanford possessed a reasonable suspicion that the burglar posed a danger to himself and Hinkley. .................................................................................................................................................. 13
3. The protective sweep of Hinkley’s residence was properly limited in scope and duration to minimize the intrusion on his Fourth Amendment protections. ............................................................................. 19
II. THE THIRTEENTH CIRCUIT ERRED IN HOLDING THAT POSSESSION OF AN UNREGISTERED SAWED-OFF SHOTGUN IS NOT A PREDICATE VIOLENT FELONY UNDER THE ARMED CAREER CRIMINAL ACT OF 1984. ............................................................................21
A. Possession of a sawed-off shotgun satisfies the first prong of the Begay test by presenting a serious potential risk of physical injury to another. ................................................................... 22
B. Possession of an unregistered sawed-off shotgun satisfies the second prong of the Begay test by posing a risk that is similar in kind and degree to several of the four crimes listed in the Armed Career Criminal Act. .................................................................................................................. 24
1. Possession of a sawed-off shotgun is sufficiently similar in kind to burglary, extortion, and the unlawful use of explosives...................................................................................................................... 25
2. Possession of a sawed-off shotgun is sufficiently similar in degree to burglary to satisfy the second prong of the Begay test ........................................................................................................................... 28
3. Possession of a sawed-off shotgun is sufficiently similar in degree to illegal use of explosives to satisfy the second prong of the Begay test. ........................................................................................................ 30
4. The Federal Sentencing Guidelines for the ACCA are persuasive authority and conclude that possession of a sawed-off shotgun is a violent felony............................................................................ 32
C. In the alternative, the second prong of the Begay test is inconsistent with both congressional intent and the plain language of the ACCA and should be overturned...................................... 34
PRAYER FOR RELIEF.................................................................................................................... 39
ii
TABLE OF AUTHORITIES
CONSTITUTIONAL PROVISIONS
U.S. CONST. amend. IV................................................................................................................................. 4
STATUTES
18 U.S.C. § 924(e)(2)(B)(ii)................................................................................................................. passim 26 U.S.C. § 5861(d) .................................................................................................................................... 23 Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e) (1984) ...................................................... passim Armed Career Criminal Act of 1984, PUB. L. NO. 98-473, ch. 18, 98 Stat. 2185 (repealed in 1986). ....... 37 National Firearms Act (NFA), 26 U.S.C. §§ 5801-5872 (1986).......................................................... passim U.S. SENTENCING GUIDELINES MANUAL § 4B1.2................................................................................ 30, 33
CASES
UNITED STATES SUPREME COURT
Begay v. United States, 553 U.S. 137 (2008)....................................................................................... passim Camara v. Municipal Court, 387 U.S. 523 (1967) ....................................................................................... 5 Florida v. Jimeno, 500 U.S. 248 (1991)........................................................................................................ 4 James v. United States, 550 U.S. 192 (2007)....................................................................................... passim Maryland v. Buie, 494 U.S. 325 (1990) ............................................................................................... passim Michigan v. Long, 463 U.S. 1032 (1983).................................................................................................. 7, 8 Minnesota v. Dickerson, 508 U.S. 366 (1993) ............................................................................................ 21 Ohio v. Robinette, 519 U.S. 33 (1996) .................................................................................................... 9, 14 Payne v. Tennessee, 501 U.S. 808 (1991) ................................................................................................... 37 Schneckloth v. Bustamonte, 412 U.S. 218 (1973) ......................................................................................... 9 Staples v. United States, 511 U.S. 600 (1994) ............................................................................................ 28 State Oil Co. v. Khan, 522 U.S. 3 (1997) .................................................................................................... 37 Taylor v. United States, 495 U.S. 575 (1990) ....................................................................................... 36, 37 Terry v. Ohio, 392 U.S. 1 (1968) ......................................................................................................... passim
UNITED STATES COURTS OF APPEAL
Leaf v. Shelnutt, 400 F.3d 1070 (7th Cir. 2005)........................................................................................ 5, 9 Pelphrey v. Cobb Cnty., 547 F.3d 1263 (11th Cir. 2008) ............................................................................. 4 United States v. Allegree, 175 F.3d 648 (8th Cir. 1999) ....................................................................... 23, 29 United States v. Brazeau, 237 F.3d 842 (7th Cir. 2001) ................................................................. 23, 25, 29 United States v. Chambers, 473 F.3d 724 (C.A.7 2007)............................................................................. 33 United States v. Daoust, 916 F.2d 757 (1st Cir. 1990) ......................................................................... 16, 17 United States v. Dunn, 946 F.2d 615 (9th Cir. 1991).................................................................................. 23 United States v. Dwyer, 245 F.3d 1168 (10th Cir. 2001)............................................................................ 34 United States v. Fortes, 141 F.3d 1 (1st Cir. 1998)......................................................................... 22, 23, 34 United States v. Garcia, 997 F.2d 1273 (9th Cir. 1993) ............................................................. 5, 10, 15, 16 United States v. Gould, 364 F.3d 578 (5th Cir. 2004).......................................................................... passim United States v. Hayes, 7 F.3d 144 (9th Cir. 1993)..................................................................................... 34 United States v. Jennings, 195 F.3d 795 (5th Cir. 1999) ............................................................................ 25 United States v. Johnson, 246 F.3d 330 (4th Cir. 2001) ............................................................................. 34 United States v. Johnson, 417 F.3d 990, 996 (8th Cir. 2005) ..................................................................... 33 United States v. Martins, 413 F.3d 139 (1st Cir. 2005) .......................................................................... 5, 14
iii
United States v. McGill, 618 F.3d 1273 (11th Cir. 2010) ......................................................... 25, 28, 30, 32 United States v. Miller, 430 F.3d 93 (2nd Cir. 2005)........................................................................... passim United States v. Patrick, 959 F.2d 991 (D.C. Cir. 1992) ........................................................................ 5, 10 United States v. Reid, 226 F.3d 1020 (2000), ............................................................................................... 6 United States v. Serna, 309 F.3d 859 (5th Cir. 2002) ................................................................................. 34 United States v. Smith, 931 F.2d 55 (4th Cir. 1991) ..................................................................................... 5 United States v. Taylor, 248 F.3d 506 (6th Cir. 2001) ...................................................................... 5, 10, 16 United States v. Torres-Castro, 470 F.3d 992 (10th Cir. 2006).................................................................... 5 United States v. Upton, 512 F.3d 394 (7th Cir. 2008)..................................................................... 22, 23, 34 United States v. Vincent, 575 F.3d 820 (8th Cir. 2009) ....................................................................... passim United States v. Waldner, 425 F.3d 514 (2005) ............................................................................................ 6 United States v. Weeks, 442 Fed. App’x 447 (11th Cir. 2011) ...................................................................... 4 United States v. Williams, 537 F.3d 969 (8th Cir. 2008) ............................................................................ 33
OTHER AUTHORITIES
OXFORD UNIV. PRESS, THE OXFORD AMERICAN COLLEGE DICTIONARY 966 (Christine A. Lindberg et al. eds., 2002)......................................................................................................................................... 32, 36
iv
QUESTIONS PRESENTED I. Whether a police officer’s brief and limited protective sweep of a residence was reasonable
under the Fourth Amendment, given that the officer was searching for a dangerous and fugitive
criminal recently observed in the immediate area, and was granted entry into the residence after
disclosing this purpose.
II. Whether possession of an unregistered sawed-off shotgun should be deemed a violent felony
for purposes of sentencing career criminals to mandatory minimum sentences, considering that
such possession is a crime under the National Firearms Act and that these shotguns are
deliberately modified to maximize close-range lethality.
v
OPINIONS BELOW The District Court for the District of North Greene determined that Roy Hinkley was in
violation of the Armed Career Criminal Act of 1984 (ACCA). The district court denied
Hinkley’s motion to suppress the evidence found in his apartment, holding that the protective
sweep of Hinkley’s apartment was lawful. (R-6). The district court further held that Hinkley’s
prior conviction for possession of a sawed-off shotgun was a predicate violent felony under the
ACCA. (R-6). Pursuant to the ACCA, Hinkley was sentenced to 180 months imprisonment and
five years supervised release. (R-2).
On appeal, the United States Court of Appeals for the Thirteenth Circuit affirmed
Hinkley’s conviction, but vacated the sentence and remanded for resentencing. The Thirteenth
Circuit affirmed the district court’s denial of Hinkley’s motion to suppress, and rejected a narrow
interpretation of the protective sweep doctrine. The court concluded that the search of Hinkley’s
apartment did not violate his Fourth Amendment rights, because the police officer was lawfully
on the premises and conducted a limited safety sweep. (R-8, 9). On the issue of sentencing, the
Thirteenth Circuit applied the two-prong test from the Supreme Court’s decision in Begay v.
United States, 553 U.S. 137 (2008) (R-10). While the court found that possession of an
unregistered sawed-off shotgun meets the first prong of the Begay test, it held that such
possession fails to satisfy the test’s second prong and therefore is not a predicate violent felony
under the ACCA. (R-10, 11).
These two issues are now brought before this Court on appeal from the Thirteenth Circuit.
(R-12).
1
STATEMENT OF FACTS
Roy Hinkley has a history of breaking the law and receiving leniency from the justice
system. Hinkley has either pled guilty or been convicted of the following offenses: first-degree
burglary, arson, possession of an unregistered “sawed-off shotgun,” and being a felon in
possession of a firearm. (R-3 - 6).
Hinkley’s conviction for first-degree burglary occurred at the age of fifteen, soon after his
family moved to High Point County, North Greene. (R-3). Hinkley’s target was his neighbor’s
house, and he carefully waited for the opportune moment to break into the residence. (R-3).
Once his neighbor left, Hinkley entered the home and stole a signed baseball to show his friends.
(R-3). After being caught by the police, Hinkley was tried as a juvenile and sentenced to three
years of home confinement with electronic monitoring. (R-3). The sentencing judge specifically
pled with Hinkley to abandon this lifestyle. (R-3).
Hinkley’s next conviction was for arson, and occurred in 2008. (R-4). After completing
his undergraduate education in Construction Science and Business Administration, Hinkley
chose to quit his graduate program and work at his uncle’s construction business. (R-3). After
his uncle’s unexpected death, Hinkley took control of the business until the housing market crisis
in 2007. (R-4). Hinkley defaulted on multiple financial obligations, including health insurance
premiums that would have provided coverage for his daughter’s recent leukemia diagnosis. (R-
4). Hinkley decided to destroy his construction business by setting it on fire and disguising it as
an accident, in order to recover on his insurance policy. (R-4). Despite clear surveillance video
evidence that Hinkley intentionally started the fire, both the prosecutor and the judge took pity
on him. (R-4). Consequently, he was only sentenced him to one year of probation in lieu of jail
time. (R-4).
2
Having destroyed his construction business, Hinkley relocated his family to a less
expensive area and took a job as a real estate agent. (R-4). Several local burglaries convinced
Hinkley that he needed to purchase a gun, but he was fully aware that convicted felons are not
authorized to own firearms. (R-4). To circumvent this restriction, Hinkley elicited aid from a
friend who gave Hinkley a sawed-off shotgun with a 16-inch barrel. (R-4, 5). The police caught
Hinkley with this shotgun when he walked outside after hearing noises, and he was charged with
possession of an unregistered “sawed-off shotgun.” (R-5). Yet again, the prosecution took pity
on Hinkley and he was given a lenient sentence without any jail time: ten years of probation and
five years of home monitoring. (R-5).
Just two months after receiving this plea deal, a fatal home invasion in the area convinced
Hinkley that he needed to obtain another firearm. (R-5). Hinkley again engaged the assistance
of a friend to purchase a .40 caliber semi-automatic handgun. (R-5). The handgun was selected
because Hinkley felt it would be easier to conceal from the police. (R-5). On June 1, 2011 the
handgun was discovered on Hinkley’s kitchen counter by Officer Sanford, who was part of a
door to door search for a fugitive burglar. (R-5, 6). After Hinkley permitted Officer Sanford to
enter his home, Officer Sanford conducted a brief precautionary sweep of the premises over
Hinkley’s objection. (R-6). It was during this sweep that the handgun was discovered, and
Hinkley was arrested for being a felon in possession of a firearm. (R-6). Officer Sanford knew
of Hinkley’s status as a felon because he recognized him from his previous arrest. (R-6).
3
SUMMARY OF THE ARGUMENT This Court should find that the protective sweep conducted by Officer Sanford satisfies
the Fourth Amendment’s reasonableness requirement. Applying the balancing approach
articulated by this Court in Terry v. Ohio, it is evident that Officer Sanford had a strong
governmental interest in capturing the fugitive burglar. This interest was heightened during the
door to door searches and when he entered Hinkley’s residence, as Officer Sanford was in
precisely the area where the burglar was last seen, and at a tactical disadvantage. Taken together
and in context, the circumstances satisfy the reasonable suspicion requirement established by this
Court in Maryland v. Buie to authorize protective sweeps. Finally, the actual sweep was of
extremely limited duration and scope, constituting only a minor intrusion on Hinkley’s Fourth
Amendment rights. On balance, Officer Sanford’s vital interest in protecting both himself and
Hinkley from the fugitive outweighs the relatively small intrusion on the petitioner.
With regard to the issue of sentencing, this Court should find that possession of an
unregistered sawed-off shotgun is a predicate violent felony under the Armed Career Criminal
Act of 1984. Under the two-prong test established by this Court in Begay v. United States,
possession of an unregistered shotgun satisfies the first prong by involving conduct that presents
a serious risk of physical injury. Possession of an unregistered sawed-off shotgun also satisfies
the second prong, in that it is similar in both kind and degree of risk to several of the four crimes
listed in the ACCA’s residual clause. In the alternative, this Court could choose to reach the
same result by overturning the second prong of the Begay test for being inconsistent with
legislative intent and the plain language of the ACCA. Under either approach, the central
concern is to effectuate the ACCA’s purpose of ensuring mandatory minimum sentences for
career criminals.
4
STANDARD OF REVIEW
Findings of facts are subject to a standard of clear error, and legal conclusions are subject
to de novo review. Pelphrey v. Cobb Cnty., 547 F.3d 1263, 1268 (11th Cir. 2008). The issue of
“[w]hether a particular conviction is a ‘violent felony’ under the ACCA is a question of law that
will be reviewed de novo.” United States v. Weeks, 442 Fed. App’x 447, 452 (11th Cir. 2011).
ARGUMENT
I. THE THIRTEENTH CIRCUIT CORRECTLY HELD THAT THE PROTECTIVE SWEEP OF HINKLEY’S RESIDENCE WAS LAWFUL UNDER THE FOURTH AMENDMENT.
The Thirteenth Circuit was correct in finding that Officer Sanford’s protective sweep of
Hinkley’s residence was lawful under the Fourth Amendment. The Fourth Amendment provides
“the right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated.” U.S. CONST. amend. IV. In
evaluating the contours of Fourth Amendment protections, the Supreme Court has consistently
emphasized that the “touchstone of the Fourth Amendment is reasonableness.” Florida v.
Jimeno, 500 U.S. 248, 250 (1991). As such, it is well established that “what the Constitution
forbids is not all searches and seizures, but unreasonable searches and seizures.” Elkins v.
United States, 364 U.S. 206, 222 (1960) (emphasis added). There is an inevitable tension
between effective law enforcement and the right of a citizen to privacy and security, and Fourth
Amendment cases showcase these competing interests. Terry v. Ohio, 392 U.S. 1, 10-12 (1968).
In order to address both of these concerns, the Supreme Court assesses reasonableness through a
balancing approach that weighs “‘the need to search (or seize) against the invasion which the
search (or seizure) entails.’” Terry, 392 U.S at 21 (quoting Camara v. Municipal Court, 387 U.S.
523, 534-35 (1967).
5
In finding that the protective sweep of Hinkley’s residence was reasonable under the
Fourth Amendment, the Thirteenth Circuit joined with the majority of its sister circuits to apply
the Supreme Court’s protective sweep doctrine beyond the narrow circumstances of a search in
conjunction with an in-house arrest. See United States v. Caraballo, 595 F.3d 1214 (11th Cir.
2010) (upholding a protective sweep during a brief investigative stop of a boat suspected of
violating state fisheries laws); United States v. Miller, 430 F.3d 93 (2nd Cir. 2005) (upholding a
protective sweep that occurred when police acted under a protective order to assist an individual
in moving out of his apartment); Leaf v. Shelnutt, 400 F.3d 1070 (7th Cir. 2005) (upholding a
protective sweep by police officers responding to an incomplete 911 call, the officers saw an
individual sleeping in the house and decided to execute a brief search before awaking the
individual); United States v. Martins, 413 F.3d 139 (1st Cir. 2005) (permitting a protective sweep
in exigent circumstances); United States v. Gould, 364 F.3d 578 (5th Cir. 2004) (upholding a
protective sweep of a mobile home by officers seeking to speak with a convicted felon); United
States v. Taylor, 248 F.3d 506 (6th Cir. 2001) (permitting a protective sweep of an area by
officers standing guard while a search warrant was obtained); United States v. Garcia, 997 F.2d
1273 (9th Cir. 1993) (upholding a protective sweep by police officers acting on a sixty day old
tip who saw a package that might be narcotics through a screen door); United States v. Patrick,
959 F.2d 991 (D.C. Cir. 1992) (abrogated on other grounds by Apprendi v. New Jersey, 530 U.S.
466, (2000)) (holding that the rationale of Buie in upholding a protective sweep pursuant to a
warrant applies equally in the context of a consensual entry); United States v. Smith, 931 F.2d 55
(4th Cir. 1991) (permitting a protective sweep in exigent circumstances). But see United States v.
Torres-Castro, 470 F.3d 992 (10th Cir. 2006) (holding that a protective sweep must be
performed incident to an arrest, although a search that precedes an arrest may still be incident to
6
that arrest). Two recent cases from the Eighth and one panel of the Ninth Circuit suggest that the
Tenth Circuit may alone in adopting this rigid interpretation of Buie. In United States v. Waldner,
425 F.3d 514 (2005), the Eighth Circuit “decline[d] the government’s invitation to extend Buie
further,” but it struck down the protective search because the government had not demonstrated
that the officers had a reasonable suspicion. Id. at 517. Presumably, if the government had
carried its burden the sweep would have been upheld. Similarly, in United States v. Reid, 226
F.3d 1020 (2000), one panel of the Ninth Circuit appears to acknowledge that if reasonable
suspicion had been shown, the protective sweep could have been authorized. Id. at 1027.
The record demonstrates that Officer Sanford had reasonable suspicion and an immediate
safety interest in conducting a protective sweep. After weighing this significant interest against
the limited intrusion on Hinkley’s Fourth Amendment rights, this Court should find that the
sweep is well within the bounds of the Fourth Amendment’s reasonableness standard.
A. The search of Hinkley’s residence should be evaluated under the Fourth Amendment’s general proscription against unreasonable searches and seizures.
Officer Sanford’s search of Hinkley’s residence should be evaluated under the Fourth
Amendment’s general proscription against unreasonable searches and seizures, rather than the
general requirement for a warrant issued on probable cause. In Terry, the Supreme Court noted
that law enforcement personnel encounter situations in which it is not practicable to obtain a
warrant. Terry, 392 U.S. at 20. In such situations, officer conduct is assessed under the Fourth
Amendment’s “general proscription against unreasonable searches and seizures.” Id. This
principle was echoed in Maryland v. Buie, 494 U.S. 325, 331 (1990), as the Court recognized
that there are contexts “where the public interest is such that neither a warrant nor probable cause
is required.” Applying these considerations, the Court found that a plain clothes police officer
on foot patrol should not be subjected to the warrant procedure, given that his assignment
7
required “necessarily swift action predicated upon on-the-spot observations.” Terry, 392 U.S. at
20. In the same manner, Officer Sanford’s door to door search for a fleeing burglar does not fall
into the category of conduct requiring a warrant. Time was a critical factor, as the police were
acting on recent reports of the burglar’s location. (R-5). The protective sweep should therefore
be assessed under the reasonableness standard in Terry and as applied in Long and Buie.
B. Under this Court’s decisions in Terry, Long, and Buie, protective sweeps should be permissible when law enforcement personnel have lawfully entered a residence.
The Supreme Court’s decisions in the area of reasonable search and seizures support
application of the protective sweep doctrine to potentially dangerous situations that arise
whenever a police officer is lawfully present in a residence. In the present case, this Court must
first resolve the circuit split regarding a protective sweep that is not in conjunction with an in-
home arrest. The Supreme Court’s holding in Buie provides that an officer may conduct “a
properly limited protective sweep in conjunction with an in-home arrest when the searching
officer possesses a reasonable belief . . . that the area to be swept harbors an individual posing a
danger to those on the arrest scene.” Buie, 494 U.S. at 337. While the specific factual context in
Buie involved an arrest, the “Court’s paramount concern . . . was not why the officers were
present in the home, but rather, why the officers might fear for their safety and what they could
do to protect themselves.” Miller, 430 F.3d at 98-99. This driving concern for safety is evident
in the Court’s earlier holdings in Terry and Michigan v. Long, 463 U.S. 1032 (1983), and
strongly negates the minority opinion that a protective sweep must be incident to an arrest.
In Miller, the Second Circuit found that “[a]t the core of Terry, Long and Buie is the
common understanding that the Fourth Amendment’s reasonableness requirement is sufficiently
flexible to allow officers who have an objectively credible fear of danger to take basic
precautions to protect themselves.” Miller, 430 F.3d at 98. In Terry, the plain clothes officer
8
was permitted to conduct physical pat-down searches of three individuals. Terry, 392 U.S. at 29-
30. While there was no visible indication that these individuals were armed, the Court
considered it sufficient that the police officer observed conduct consistent with “casing a job, a
stick-up.” Id. at 6. In arriving at this decision, the Court emphasized “the need for law
enforcement officers to protect themselves and other prospective victims of violence in situations
where they may lack probable cause for arrest.” Id. at 24. Further, in situations where an officer
suspects that an individual presents a danger, it would “be clearly unreasonable to deny the
officer the power to take necessary measures to determine whether the person is in fact carrying
a weapon and to neutralize the threat of physical harm.” Id.
In Long, the Court applied the rationale underlying Terry to find that police may conduct
a search of an automobile’s passenger compartment for weapons, if they have “an articulable and
objectively reasonable belief that the suspect is potentially dangerous.” Long, 463 U.S. at 1051.
The Court rejected the contention that Terry is limited to a search of the individual, and stressed
that “danger may arise from the possible presence of weapons in the area surrounding a suspect.”
Id. at 1049. Consistent with this emphasis on neutralizing dangerous situations, the Court in
Buie found an analogous interest of arresting officers “to assure themselves that the house in
which a suspect is being, or has just been, arrested is not harboring other persons who are
dangerous and who could unexpectedly launch an attack.” Buie, 494 U.S. at 333.
Given the Supreme Court’s focus on the safety of law enforcement officials, a consistent
application of Buie requires the acknowledgement that “even without an arrest other
circumstances can give rise to equally reasonable suspicion of equally serious risk of dangers of
officers being ambushed by a hidden person as would be the case were there an arrest.” Gould,
364 F.3d at 584. Indeed, a significant factor in Buie was that “[t]he risk of danger in the context
9
of an arrest in the home is as great as, if not greater than, it is in an on-the-street or roadside
investigatory encounter.” Buie, 494 U.S. at 333. As the Seventh Circuit held in Leaf, the entire
basis for the protective sweep doctrine “is the principle that police officers should be able to
ensure their safety when they lawfully enter a private dwelling.” Leaf, 400 F.3d at 1087. Further,
neither Terry nor Long, the cases upon which Buie relies heavily, involved an arrest. The fact
that Officer Sanford was not executing an in-home arrest should therefore be irrelevant in
assessing whether the protective sweep was justified.
What is significant is that Officer Sanford was lawfully on the premises. This Court
should adopt a standard that permits protective sweeps when a law enforcement official has
lawfully gained entry into a residence. See, e.g., Miller, 430 F.3d at 99; Gould, 364 F.3d at 585-
87; Leaf, 400 F.3d at 1087. In Gould, the Fifth Circuit noted that when courts have held that
protective sweeps must be incident to arrest, they have primarily addressed “situations where the
entry into the house itself was illegal.” Gould, 364 F.3d at 586. The appropriate delineation is
between lawful and unlawful entry, not the various modes of lawful entry. Further, a lawful
entry standard is consistent with the deterrent function of the Fourth Amendment. As described
in Terry, “the rule excluding evidence seized in violation of the Fourth Amendment has been
recognized as a principal mode of discouraging lawless police conduct.” Terry, 392 U.S. at 12.
In situations where police have lawfully entered a residence, the policy considerations shift and
the focus should remain on the subsequent actions taken while within the home.
In situations where an individual has consented to a search, “the Fourth Amendment test
for valid consent to search is that the consent be voluntary.” Ohio v. Robinette, 519 U.S. 33, 40
(1996). As established in Schneckloth v. Bustamonte, 412 U.S. 218, 248-49 (1973),
“[v]oluntariness is a question of fact to be determined from all the circumstances.” In the
10
context of a consent based entry that precedes a protective sweep, courts have rejected a rigid
construction of consent. The Ninth Circuit found that police officers received lawful consent to
enter an apartment after telling an individual that they wanted to talk, and receiving a reply of
“okay.” Garcia, 997 F.2d at 1277. The officers then entered the apartment, detained the
individual against a wall, and conducted a protective sweep. Id. In another case upholding a
protective sweep, the Sixth Circuit found that consent to enter the locked common area of an
apartment complex was granted, even though the consent came from a tenant other than the
defendant. Taylor, 248 F.3d at 512. The D.C. Circuit found that a written authorization form to
search the owner’s apartment for “no less than ten working days” gave police officers lawful
consent to search the bedroom of a second individual who was living in the owner’s apartment.
Patrick, 959 F.2d at 998. In Gould, police officers who were searching for the defendant in his
mobile home were granted entry by another individual within the residence. Gould, 364 F.3d at
588-89. The Fifth Circuit found “the only reasonable construction” of the initial consent to be
that it extended to the defendant’s bedroom. Id. at 589.
The record establishes that Officer Sanford received consent from Hinkley to enter his
home. (R-5). As part of the search for the local burglar, Sanford and other police officers were
conducting door to door searches in the area where the burglar had fled. (R-5). Officer Sanford
knocked at the door, and when Hinkley answered he identified himself and disclosed his purpose.
(R-5). When Sanford asked whether he could come inside to ask further questions, Hinkley
consented and he entered the living room. (R-5, 6). At this point, Sanford asked Hinkley
whether he could check the house to ensure that the burglar had not broken in. (R-6). Hinkley
did not grant Officer Sanford permission to conduct a further search of the house. (R-6).
11
Based on these facts, it is evident that Officer Sanford’s initial entry into the home was
based on Hinkley’s lawful and voluntary consent. Under the standard permitting a protective
sweep once an officer is lawfully on the premises, Hinkley’s subsequent refusal to authorize a
broader search does not impact the constitutionality of the sweep. This Court could construe
consent broadly, and find that Hinkley’s initial consent authorized Officer Sanford to conduct a
brief sweep of his home. When Hinkley permitted Officer Sanford to enter his residence, he was
fully aware that Sanford was conducing a door to door search to ensure that the local burglar was
not hiding in any of the homes. (R-5). Applying the reasoning of the Fifth Circuit in Gould, the
implication of Hinkley’s consent is that Officer Sanford would be permitted to ensure that the
burglar was not present. If this were not the case, the efficacy of the door to door search would
be significantly diminished. However, upholding the protective sweep does not require this
Court to find that Hinkley consented to the broader sweep of the apartment.
In Gould, the Fifth Circuit noted that if there had been a subsequent termination of the
consent to search the mobile home, “nevertheless that does not mean that the officers could not
conduct the sweep,” as it was necessary to take “brief, minimally intrusive steps to protect
themselves against ambush as they were on the way out.” Gould, 364 U.S. at 593. This echoes
the Supreme Court’s decision in Buie, which authorizes post-arrest protective sweeps to ensure
that the arresting officers could safely depart the premises. Buie, 494 U.S. 336. Under Buie,
Officer Sanford was therefore permitted to conduct a precautionary sweep to ensure he could
safely depart the residence. Having established that Officer Sanford was lawfully present in
Hinkley’s home, this Court should assess the constitutionality of the protective sweep under
Terry’s balancing test and the reasonable suspicion standard outlined in Buie.
12
C. The protective sweep of Hinkley’s residence is lawful under the balancing test in Terry and reasonable suspicion standard in Buie.
The protective sweep of Hinkley’s apartment satisfies both the two-step balancing test
established by this Court in Terry and the reasonable suspicion standard articulated in Buie. The
first step is to examine the government interest that underlies the intrusion, and the second is to
consider whether the intrusion “was reasonably related in scope to the circumstances that
justified the interference in the first place.” Terry, 392 U.S. at 20-21. In Buie, the Supreme
Court held that a protective sweep must be predicated on a reasonable belief that the area to be
swept presents a danger. Buie, 494 U.S. at 337. Sanford was acting in accordance with a
legitimate governmental interest to ensure that the burglar did not pose a threat to himself or
Hinkley. He possessed a reasonable suspicion that the burglar might be present, and executed a
limited protective sweep of Hinkley’s residence that comported with the scope of his interest.
1. Officer Sanford’s interest in ensuring both his and Hinkley’s safety justified the protective sweep of Hinkley’s residence.
The protective sweep of Hinkley’s residence was justified by Officer Sanford’s interest in
ensuring that both he and Hinkley were safe from the fugitive and potentially murderous burglar.
As described in Terry, the first step in assessing reasonableness under the Fourth Amendment is
to examine “the governmental interest which allegedly justifies official intrusion upon the
constitutionally protected interests of the private citizen.” Terry, 392 U.S. at 20-21 (citing
Camara v. Municipal Court, 387 U.S. 523, 534-35 (1967)). In United States v. Knights, 534 U.S.
112, 113 (2001), the Court again emphasized the impact of this balancing process, “[a]lthough
the Fourth Amendment ordinarily requires probable cause, a lesser degree satisfies the
Constitution when the balance of governmental and private interests makes such a standard
reasonable.” In the context of protective sweep cases, the government interest at stake is usually
13
the immediate safety of the officer or bystanders. The plain clothes officer in Terry had both a
general interest in crime prevention and an immediate interest in ensuring the individuals he
questioned were not armed. Terry, 392 U.S. at 22-23. Similarly, the officers in Long and Buie
had an immediate interest in ensuring that an automobile and a house did not contain weapons or
dangerous individuals. Long, 463 U.S. at 1050-51; Buie, 494 U.S. at 333.
Officer Sanford had a general law enforcement interest in ensuring that the local burglar
was apprehended as quickly as possible. This interest was heightened by the fact that the burglar
at large matched the description of the burglar who murdered Hinkley’s neighbor. (R-5).
Officer Sanford was attempting to protect both the lives and physical property of North Greene’s
citizens. Once Officer Sanford entered Hinkley’s residence, he had an immediate interest in
ensuring that the burglar had not broken in and taken refuge in the home. The urgency of this
interest was bolstered by recent witness reports that the burglar had fled towards Hinkley’s home.
(R-5). Given these circumstances, Officer Sanford possessed an immediate interest in ensuring
that the home did not harbor a potentially deadly threat to both himself and Hinkley.
2. Office Sanford possessed a reasonable suspicion that the burglar posed a danger to himself and Hinkley.
Under the standard established in Buie, Office Sanford possessed a reasonable suspicion
that the fugitive burglar posed a danger to both himself and to Hinkley. In Buie, the Supreme
Court acknowledged that officers within a home have a legitimate interest in ensuring that the
home “is not harboring other persons who are dangerous and who could unexpectedly launch an
attack.” Buie, 494 U.S. at 333. However, the Court in Buie clarified that this immediate interest
must be supported by “articulable facts which, taken together with the rational inferences from
those facts, would warrant a reasonably prudent officer in believing that the area to be swept
harbors an individual posing a danger to those on the arrest scene.” Id. at 334.
14
To properly apply this standard of reasonable suspicion, it is essential to return to the
foundational principles established in Terry. The Supreme Court disclaimed a comprehensive
rule that would delineate all of the Fourth Amendment limitations on protective searches. Terry,
392 U.S. at 29. Rather, the Court cautioned that such limitations “will have to be developed in
the concrete factual circumstances of individual cases.” Id. The “central inquiry under the
Fourth Amendment - [is] the reasonableness in all the circumstances of the particular
governmental invasion of a citizen’s personal security.” Id. at 19 (emphasis added). More
recently, this “totality of the circumstances” approach was articulated in Ohio v. Robinette, 519
U.S. 33, 39 (1996) and applied in Knights, 534 U.S. at 118 (finding the search of a probationer
suspected of involvement with incendiary materials reasonable under the general Fourth
Amendment “totality of the circumstances” approach.).
In Martins, the First Circuit relied on a comprehensive assessment of the circumstances
to uphold a protective sweep of an apartment under the exigent circumstances doctrine. Martins,
413 F.3d at 151. The officers in Martins were investigating a shooting, and went to the
apartment of an individual who reportedly gave the shooting victim a chair. Id. at 144. At the
apartment door, the officers smelled marijuana and were asked to identify themselves by an adult
male voice. Id. When the door opened, the officers saw two young children and were informed
that no one else was present. Id. The defendant in Martins entered from a common hallway, and
also told the police that no one else was there. Id. Based on these facts, the officer stated that he
was concerned for the safety of everyone present and ordered a protective sweep. Id. The First
Circuit upheld the search, stating that the totality of the facts provided a sufficient basis for a
reasonable suspicion that the original unknown male speaker posed a threat to the officers. Id. at
151. Among the factors the Court considered were the area’s high crime rate, the apartment’s
15
connection and proximity to the shooting, and the evasiveness of the adult male speaker and the
defendant. Id.
Beyond a comprehensive assessment of the circumstances, it is important to note that
there is no absolute certainty requirement: “[t]he officer need not be absolutely certain that the
individual is armed; the issue is whether a reasonably prudent man in the circumstances would
be warranted in the belief that his safety or that of others was in danger.” Terry, 392 U.S. at 27.
The plain clothes police officer in Terry did not recognize the three individuals he searched, and
there was no visible evidence that any of the men were armed. Id. at 5-6. Despite this, the
Supreme Court held that their reconnaissance of a store window was sufficient grounds to
suspect that they might be armed, and the Court upheld the pat-down search. Id. at 30. In
Caraballo, marine patrol officers stopped a boat they suspected of violating Florida fisheries
laws based on its mismatched rods and the nervous behavior of the crew. Caraballo, 595 F.3d at
1222-23. Once on board the boat, the crew members’ continued nervous demeanor gave rise to
the officers’ suspicion that there was another individual on the boat, and they conducted a
protective sweep. Id. at 1225. While there appeared to be little direct evidence of a threat, the
Eleventh Circuit found that the officers had a sufficient basis for their suspicions, and upheld the
protective sweep. Id.
The reasonable certainty standard also permits some leeway in terms of timing. In
Garcia, police officers were investigating illegal drug activity on the basis of a tip that was sixty
days old. Garcia, 997 F.2d at 1276. When the officers arrived at the apartment identified by the
tipster, they saw two individuals through a screen door, one of which appeared to be carrying a
“kilo-sized” package. Id. at 1276-77. The police stated that they would like to talk with the men,
one of whom responded “okay,” and the officers proceeded to enter the apartment and execute
16
the protective sweep. Id. at 1277. Although the tip was two months old and the only visible
indication of narcotics was the package observed through the screen door, the Ninth Circuit
upheld the protective sweep of the apartment.
In assessing an officer’s reasonable belief, courts have also accounted for the individual
experiences of that officer. In Terry, the Supreme Court instructed that “due weight must be
given . . . to the specific reasonable inferences which he is entitled to draw from the facts in light
of his experience.” Terry, 392 U.S. at 27. It is significant to note that in Terry, the police officer
who conducted the pat-down searches “was unable to say precisely what first drew his eye” to
the individuals. Id. at 5. While it is impermissible to rely solely on an “inchoate and
unparticularized suspicion or ‘hunch,’” an officer’s past experience necessarily plays a role in his
or her threat assessment. Id. at 27. The role of professional experience was noted by the
Eleventh Circuit in its Caraballo decision, which upheld the protective sweep of a boat based in
large part on the nervous behavior of the crew members. Caraballo, 595 F.3d at 1222-23, 1225.
In comparison with other cases, the objective evidence of a potential threat in Caraballo appears
relatively low. Given this, the court’s holding must place significant weight on the experiential
context of the marine patrol officers. The Eleventh Circuit is not alone in its consideration of
factors such as body language. In Taylor, the Sixth Circuit held that the nervous behavior of a
resident, when taken in conjunction with factors such as a local law enforcement report and a
marijuana stem on a coffee table, sufficed to warrant a protective sweep of an apartment. Taylor,
248 F.3d at 512.
Courts have also tended to uphold an officer’s assessment of the outer boundaries of the
potential threat. In United States v. Daoust, 916 F.2d 757 (1st Cir. 1990), police officers
investigating drug activities saw a pistol through a kitchen window when they attempted to
17
contact Daoust for information. Daoust, 916 F.2d at 758. The officers obtained a search warrant
for the kitchen, but in executing the warrant they conducted a protective sweep of the entire
house. Id. The First Circuit upheld this search, affirming that the officers could reasonably have
suspected that Daoust might be present in the house and thereby pose a threat to the officers. Id.
at 759. In Buie, the protective sweep occurred after the officers had already arrested Buie. Buie,
494 U.S. at 328. When the officers shouted for Buie to come out, he emerged from the basement.
After this, one of the officers executed a protective sweep “in case there was someone else” in
the basement. Id. at 328. Although there was no other indication that another individual was
present, the Supreme Court upheld the sweep in the interests of eliminating the threat that other
potentially dangerous persons might be present. Id. at 333.
It is important to emphasize again that the Court in Buie explicitly highlighted the
particularly dangerous nature of apprehending an individual in their home, because this “puts the
officer at the disadvantage of being on his adversary’s ‘turf.’ An ambush in a confined setting of
unknown configuration is more to be feared than it is in open, more familiar surroundings.” Id.;
see also Miller, 430 F.3d at 98-99.
Under the totality of the circumstances present in this case, this Court should find that
Officer Sanford possessed a reasonable suspicion that the burglar posed a threat to both himself
and Hinkley, and that it was necessary to neutralize that threat through a properly limited
protective sweep. In arriving at this assessment, Officer Sanford relied on specific and
uncontested facts. This particular area of North Greene was well-known for a high rate of crime.
(R-4). Within the short time span of just one month, four houses and several cars were
burglarized. (R-4). A homeowner was subdued and controlled by an intruder armed with a
semi-automatic weapon. (R-4). During a subsequent home invasion, the neighbor located
18
directly across the street from Hinkley was shot and killed by an intruder. (R-5). Against this
backdrop, another burglary occurred and witnesses reported that the burglar fled towards
Hinkley’s home. (R-5). Most significantly, the description of the fugitive burglar “was identical
to the description of the burglar who had killed Hinkley’s neighbor.” (R-5).
Taken together, these facts represent a significantly more substantial basis for reasonable
suspicion than the Eleventh Circuit relied on to uphold the protective sweep of the boat in
Caraballo. The high crime rate in the local area and the reportedly close proximity of the
burglar to Hinkley’s residence are very similar to the factors that the First Circuit utilized to
uphold the protective sweep in Martins. Additionally, the locations of the past burglaries and
murder could indicate that the burglar was intentionally targeting homes in the immediate
vicinity of Hinkley’s residence. Unlike the police officers in Garcia who were investigating a tip
that was two months old, Officer Sanford was acting in response to immediate reports that the
burglar had fled towards Hinkley’s residence.
It is also necessary to consider the potential impact that Officer Sanford’s prior
experiences had on his threat assessment. While Sanford was not afraid of Hinkley and did not
believe he was the burglar, he did recognize Hinkley based on his arrest for possession of an
unregistered sawed-off shotgun. (R-6). Given this, Sanford could plausibly think there was a
greater risk of illegal weapons being present in Hinkley’s home than in the average North Greene
home. If the burglar had broken into Hinkley’s residence and found an illegal gun, the additional
firepower would have made the burglar an even greater threat. Another potential consideration
is that Hinkley refused Officer Sanford’s request to conduct a brief search for the burglar. While
the record does not indicate the manner in which Hinkley delivered his refusal, it is entirely
plausible that his body language triggered Officer Sanford’s suspicions. As seen in Caraballo
19
and Taylor, an individual’s demeanor can play a significant role in triggering reasonable
suspicions. Officer Sanford expressed his concern that the burglar might have broken in and
taken refuge in Hinkley’s residence. (R-6). If Hinkley’s body language conveyed fear, Sanford
could have suspected that the burglar had broken in and threatened Hinkley to keep him silent.
This Court should find that Officer Sanford had a sufficient basis for his suspicion that
the burglar posed a threat to himself and Hinkley. Sanford was operating in a high crime area
and searching for the criminal that in all likelihood had murdered Hinkley’s neighbor.
According to very recent reports, the burglar had been seen in close proximity to Hinkley’s
residence and could have broken into the house. Based on his experiences, Officer Sanford
could have reasonably feared that the burglar would also obtain an illegal gun from Hinkley’s
home. In light of these concerns, Officer Sanford reasonably concluded that the potentially
dangerous environment warranted a precautionary sweep of the residence.
3. The protective sweep of Hinkley’s residence was properly limited in scope and duration to minimize the intrusion on his Fourth Amendment protections.
Officer Sanford’s protective sweep of Hinkley’s home was properly limited in scope and
duration, minimizing the intrusion on his Fourth Amendment rights. The second step of the
Supreme Court’s inquiry in Terry assessed “the nature and quality of the intrusion on individual
rights.” Terry, 392 U.S. at 24. The point of this examination is to determine if searches and
seizures are “reasonably related in scope to the justification for their initiation.” Id. In Buie, the
Court stressed that a protective sweep is distinct from a full search, and “may extend only to a
cursory inspection of those spaces where a person may be found.” Buie, 494 U.S. at 335.
Further, the duration of the sweep is limited to the amount of time “necessary to dispel the
20
reasonable suspicion of danger,” and no longer than the police are justified in remaining on the
premises. Id.
As with the standard of reasonable belief, assessing the proper scope of a protective
sweep is a highly fact specific inquiry. In Miller, the contested protective sweep consisted of
quickly following the individual into and out of a room, and catching sight of a firearm in plain
view on the way out. The Second Circuit found that the “quick and unobtrusive” search was
“narrowly tailored to dispel the threat that Miller would have posed by being in the second
bedroom alone.” Miller, 430 F.3d at 101-02. The facts in Gould warranted a more deliberate
sweep, which the Fifth Circuit upheld as properly limited in scope and duration. Gould, 364
F.3d at 593. The police officers were informed that Gould was in his bedroom, but upon
approaching the door they were unable to see him. Id. at 580. Given Gould’s felon status,
violent reputation, and alleged threat to kill two local judges, the officers wanted to ensure that
he was not hiding in his bedroom. Id. Consequently, the police conducted a protective sweep of
Gould’s bedroom by looking under the bed and in the closets. Id.
The record indicates that Officer Sanford’s protective sweep of Hinkley’s residence was
extremely brief, and limited in scope to opening the door that led to the kitchen. (R-6). Officer
Sanford knew that the kitchen had a door leading out of the house and into the backyard, making
it an ideal entryway for the fugitive burglar. (R-6). It was a logical starting point for his search,
consistent with his interest in apprehending the burglar. After opening the kitchen door, Officer
Sanford saw the semi-automatic handgun on the kitchen counter. (R-6). At this point, Officer
Sanford was justified in arresting Hinkley under the plain view doctrine, which holds that “if
police are lawfully in a position from which they view an object, if its incriminating character is
immediately apparent, and if the officers have a lawful right of access to the object, they may
21
seize it without a warrant.” Minnesota v. Dickerson, 508 U.S. 366, 375 (1993). The incipient
protective sweep was terminated at this point, making its duration extremely limited.
Officer Sanford had an immediate interest in ensuring that the fugitive burglar was
apprehended and did not pose a threat to himself or Hinkley. Among the numerous facts that
Officer Sanford had to consider were the area’s high crime rate, recent reports that the burglar
fled towards Hinkley’s home, the burglar’s potential preference for attacking homes in the
immediate vicinity of Hinkley’s, and most significantly the report that the burglar matched the
description of the murderer. In light of these facts and based on his experience, Officer Sanford
executed an extremely brief and limited protective sweep of the home. This Court should find
that Officer Sanford’s protective sweep satisfies the Fourth Amendment’s reasonableness
standard.
II. THE THIRTEENTH CIRCUIT ERRED IN HOLDING THAT POSSESSION OF AN UNREGISTERED SAWED-OFF SHOTGUN IS NOT A PREDICATE VIOLENT FELONY UNDER THE ARMED CAREER CRIMINAL ACT OF 1984.
The Armed Career Criminals Act of 1984 requires a mandatory minimum sentence of
fifteen years for an offender convicted of a felony weapons charge after having sustained three
prior convictions for violent felonies. Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)
(1984). In Begay v. United States, 553 U.S. 137, 141 (2008), the Supreme Court stated that in
determining whether a crime is a violent felony, “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.” The Supreme Court then
announced a two-prong test for identifying a predicate violent felony under the ACCA. Id. at
144. Any crime which is punishable by more than one year but is not found among the
enumerated violent felonies in 18 U.S.C. § 924(e)(2)(B)(ii) is subject to the Begay test. The first
22
prong of the test requires the felony meet the plain meaning of the residual clause of 18 U.S.C.
§ 924(e)(2)(B)(ii), which states that the offense must “involve conduct that presents a serious
potential risk of physical injury to another.” Id. at 144. The second prong of the Begay test
requires the crime be one which is “roughly similar, in kind as well as in degree of risk posed, to
the examples” listed in § 924(e)(2)(B)(ii), namely arson, burglary, extortion and use of
explosives. Id. at 143.
A sawed-off shotgun is a weapon designed for violence and capable of indiscriminate
harm in a manner similar to explosives, machineguns, and other weapons restricted by the
National Firearms Act of 1934 and its possession therefore “presents a serious potential risk of
physical injury to another,” meeting the first prong of the Begay test. National Firearms Act
(NFA), 26 U.S.C. §§ 5801-5872 (1986). The Thirteenth Circuit agreed with this assessment, as
have all circuit courts which have considered this question. E.g., United States v. Vincent, 575
F.3d 820, 825 (8th Cir. 2009); United States v. Upton, 512 F.3d 394, 404 (7th Cir. 2008); United
States v. Fortes, 141 F.3d 1, 7 (1st Cir. 1998). Possession of a sawed-off shotgun is also similar
in kind to both burglary and extortion as crimes which are inchoate as to violence, and to use of
explosives as a crime whose risk potential involves a weapon restricted under the NFA. It is
similar in degree of risk created to both burglary and use of explosives because such possession
has no lawful purpose, dramatically increases the likelihood of injury to another, and
demonstrates an increased likelihood that the “offender, later possessing a gun, will use that gun
to deliberately to harm a victim.” Begay, 553 U.S. at 145.
A. Possession of a sawed-off shotgun satisfies the first prong of the Begay test by presenting a serious potential risk of physical injury to another.
Possession of a sawed-off shotgun presents a serious potential risk of physical injury to
another and thus meets the first prong of the Supreme Court’s test as articulated in Begay. The
23
Thirteenth Circuit’s finding that possession of an unregistered sawed-off shotgun in violation of
the NFA presents such a risk is consistent with the meaning and purpose of the statute, as well as
with relevant case law. Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e) (1984). The
conviction therefore meets the first requirement for a predicate violent felony under
§ 924(e)(2)(B)(ii) as interpreted by this Court in Begay. Begay, 553 U.S. at 144.
Possession of a weapon which Congress has restricted or banned creates a “serious
potential risk of physical injury to another,” 18 U.S.C. § 924(e)(2)(B)(ii), because such weapons
are “inherently dangerous and generally lacking usefulness, except for violent and criminal
purposes” and their possession necessarily “involves a substantial risk of improper physical
force.” United States v. Dunn, 946 F.2d 615, 621 (9th Cir. 1991). Possession of an unregistered
sawed-off shotgun is a felony under the National Firearms Act by application of 26 U.S.C. §
5861(d) to the definition of prohibited firearms under 26 U.S.C. § 5845(a). See United States v.
Fortes, 141 F.3d 1, 6 (1st Cir. 1998).
The Seventh Circuit has distinguished those firearms banned or restricted by Congress
from other firearms whose possession certainly presents risks but which do not meet the ACCA’s
risk threshold, noting with regard to sawed-off shotguns that “[p]eople do not shorten their
shotguns to hunt or shoot skeet.” Upton, 512 F.3d at 404. The primary attraction of such a
weapon is that it is more maneuverable at close range and “easier to conceal . . . facts that
spurred Congress to require the registration of all sawed-off shotguns, along with other
dangerous weapons like bazookas, mortars, pipe bombs, and machine guns.” Id; see also United
States v. Brazeau, 237 F.3d 842, 845 (7th Cir. 2001) (holding that “possession of a sawed-off
shotgun – by the very nature of the weapon – always creates a serious potential risk of physical
injury to another”); United States v. Allegree, 175 F.3d 648, 651 (8th Cir. 1999) (holding that
24
sawed-off shotguns “are inherently dangerous and lack usefulness except for violent and criminal
purposes”).
Respondent’s conviction was for possession of a shotgun with a 16-inch barrel. (R-5).
Under the NFA, shotguns with barrels less than 18 inches long are prohibited. 26 U.S.C. §
5845(a). Given the inherently dangerous nature of this weapon, Hinkley’s possession of it
“involves conduct that presents a serious potential risk of physical injury to another” and
therefore satisfies the first prong of the Begay test.
B. Possession of an unregistered sawed-off shotgun satisfies the second prong of the Begay test by posing a risk that is similar in kind and degree to several of the four crimes listed in the Armed Career Criminal Act.
Possession of a sawed-off shotgun in violation of the NFA is similar in kind to both
burglary and extortion as crimes with the potential to mature into overt acts of violence, thereby
creating a substantial “potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii)
(emphasis added). It is also similar in kind to the illegal use of explosives, as both crimes
involve weapons restricted under the NFA. In terms of degree of risk created, possession of a
sawed-off shotgun is similar to both burglary and use of explosives, because such possession has
no lawful purpose, dramatically increases the likelihood of injury to another, and demonstrates
an increased likelihood that the “offender, later possessing a gun, will use that gun deliberately to
harm a victim.” Begay, 553 U.S. at 145.
Under the second prong of the Begay test, for an offense to qualify as a predicate violent
felony under ACCA it must be “roughly similar, in kind as well as in degree of risk posed, to the
examples” listed in § 924(e)(2)(B)(ii) of the ACCA. Begay, 553 U.S. at 143. In assessing the
second prong of the Begay test, the Thirteenth Circuit misapplied the rule guiding this Court’s
distinction between driving under the influence of alcohol (DUI) and the statute’s listed crimes.
25
Rather than perform independent analysis or relying on the Eighth Circuit’s more thorough
analysis in United States v. Vincent, 575 F.3d 820 (8th Cir. 2009), the Thirteenth Circuit applied
the self-admittedly “narrow” analysis of the 11th Circuit in United States v. McGill, 618 F.3d
1273, 1277 (11th Cir. 2010). This decision must be reversed to uphold the integrity of the rule
announced by the Supreme Court in Begay. Possession of a sawed-off shotgun in violation of
the NFA is sufficiently similar in kind to all of the listed crimes in § 924(e)(2)(B)(ii) except for
arson, and it is sufficiently similar in degree to both burglary and use of explosives.
1. Possession of a sawed-off shotgun is sufficiently similar in kind to burglary, extortion, and the unlawful use of explosives.
Possession of a sawed-off shotgun in violation of the NFA is roughly similar in kind to
several of the enumerated violent felonies in 18 U.S.C. § 924(e)(2)(B)(ii). While rough
similarity to only one exemplary crime would be sufficient to label the offense a predicate
violent felony, see James v. United States, 550 U.S. 192, 203 (2007) (holding that a court may
compare a crime under review to the “closest analog among the enumerated offenses” in the
ACCA), possession of a sawed-off shotgun in violation of the NFA is similar in kind to three of
the violent felonies listed in § 924(e)(2)(B)(ii) of the ACCA: burglary, extortion, and use of
explosives. The most analogous of the listed crimes is burglary, the “main risk” of which “arises
not from the simple physical act of wrongfully entering onto another's property, but rather from
the possibility of a face-to-face confrontation between the burglar and a third party.” James, 550
U.S. at 203. Likewise, possession of a firearm prohibited by the NFA is not dangerous because
the possessor has the weapon, but rather because of “‘the virtual inevitability that such
possession will result in violence.’” Brazeau, 237 F.3d at 845 (quoting United States v. Jennings,
195 F.3d 795, 799 (5th Cir. 1999)). Both burglary and illegal possession of a sawed-off shotgun
are offenses which are inchoate as regards violence, and while neither presents a direct risk of
26
physical injury, both present “a serious potential risk of physical injury to another.” 18 U.S.C. §
924(e)(2)(B)(ii) (emphasis added).
Like burglary, extortion is also listed by the statute as an exemplary violent felony and is
also inchoate with regard to violence. The threat of violence does not manifest in the threat itself,
but it creates a “serious potential risk” of violence. In Vincent, the Eighth Circuit recognized this
connection, noting that “[l]ike the listed crimes, possession of a sawed-off shotgun is illegal
precisely because it enables violence or the threat of violence,” not because it is manifestly
violent. Vincent, 575 F.3d at 825-26. In this case, the Thirteenth Circuit failed to consider the
close analogy between illegal possession of a sawed-off shotgun and burglary or extortion,
opting instead to compare the possession crime to the “use of explosives.” (R-10). While illegal
possession of a sawed-off shotgun is similar in kind to use of explosives as described below, the
appellate court should have analyzed the additional listed crimes.
In Begay, the Supreme Court provided some guidance on the kind of crime that would
qualify as a violent felony under the ACCA by excluding DUIs for want of being “purposeful,
violent, and aggressive conduct.” Begay, 553 U.S. at 144-45. However, this exclusion has led to
some confusion below. For example, a district court in Wisconsin facing the precise question
before the Court today interpreted the holding in Begay to operate as a “distinction between
‘active’ and ‘passive’ crimes,” effectively arguing that to qualify as a violent felony a crime must
present a risk of injury in itself, not merely enable or facilitate risk of injury. United States v.
Bradford, 766 F. Supp. 2d 903, 909 (E.D. Wis. 2011). As the foregoing analysis demonstrates,
however, two of the four crimes listed in § 924(e)(2)(B)(ii) of ACCA are at least as passive as
possession of a prohibited weapon. Thus, the Bradford court’s insistence that the distinction
between possession of a prohibited weapon and use of a prohibited weapon is that “‘use typically
27
involves violent and aggressive conduct, while simple possession merely creates a potential for
violence and aggression that is ordinarily realized only if possession ripens into use’” fails to be
compelling because two of the crimes listed in the statute qualify as predicate offenses prior to
ripening into violence. Bradford, 766 F. Supp. 2d at 909 (quoting Vincent, 575 F.3d at 830
(Gruender, J., dissenting)). The listed offenses cannot produce two different rules and courts
must adopt an interpretation of this standard which encompasses all of the listed crimes.
The Eleventh Circuit decision in McGill, which was adopted by the Thirteenth Circuit in
deciding this case, declared that because Congress only included the use of explosives in its list
of violent crimes under the ACCA, that possession of explosives, and by extension possession of
a sawed-off shotgun, was a different kind of felony. This is a clear miscategorization as
possession and use of prohibited weapons are similar in nature but vary in degree of risk created.
A DUI, on the other hand, is a crime of a completely different nature than those enumerated in
the ACCA. This is because a DUI it is not intentionally designed to be violent or destructive in
the same manner as the violent felonies listed in the ACCA and possession of various prohibited
deadly weapons. Begay, 553 U.S. at 144-45.
Making the distinction clearer, the Court in Begay gave no indication that a defendant
arrested for driving while intoxicated (DWI), a charge bearing greater penalties than DUI in
those states that distinguish between the two, might qualify as a predicate violent felony where
DUI had failed. The Court did not exclude DUI in Begay because the risk engendered was
insufficient, but because the act of driving under the influence is not of a “purposeful, violent,
and aggressive” nature. Id. In fact, while acknowledging the grave risks associated with DUI,
the Court never addressed the question of whether that risk was sufficient because DUI was
excluded on the question of similarity in kind. Id. Thus, the McGill court erred in concluding
28
that possession of explosives is not of a kind with use of explosives because they vary not in kind
of harm risked but in degree of harm risked. As explosives and sawed-off shotguns are regulated
in exactly the same manner by the NFA, 26 U.S.C. § 5845(a); see also McGill, 618 F.3d at 1277,
it is only reasonable to conclude that possession of a sawed-off shotgun is “roughly similar . . . in
kind” to use of explosives as well. Begay, 553 U.S. at 143.
Finally, while DUI is a strict liability crime, possession of a weapon in violation of the
NFA carries a mens rea requirement. Staples v. United States, 511 U.S. 600, 618 (1994). While
the Court has declined to “adopt . . . a definitive rule of construction,” it is clear that “Congress
did not intend to eliminate a mens rea requirement.” Id. Conviction under the NFA, therefore,
requires a higher level of intentionality than a DUI, indicating it belongs in the same
classification as the crimes listed in § 924(e)(2)(B)(ii) of ACCA. Similarity of degree is a
separate question which is discussed below.
2. Possession of a sawed-off shotgun is sufficiently similar in degree to burglary to satisfy the second prong of the Begay test
The potential risk of physical injury to another created by possessing a sawed-off shotgun
in violation of the NFA is sufficient to meet the second prong of the Begay test as it is “roughly
similar” to that created by the listed crime of burglary. Both are inchoate with regard to violence
and pose a very serious threat of maturing into actual violence and physical harm. In Begay the
Court noted that the rationale for requiring three prior violent felony convictions before applying
a mandatory minimum sentence of fifteen years is that commission of multiple violent felonies
demonstrates an increased likelihood that the “offender, later possessing a gun, will use that gun
deliberately to harm a victim.” Begay, 553 U.S. at 145. It follows that any felony which
presents a similar degree of risk as one of the listed crimes will be similarly demonstrative of
such a likelihood and therefore qualifies as a predicate violent felony. The example crimes in
29
§ 924(e)(2)(B)(ii) “have little in common, most especially with respect to the level of risk of
physical injury they pose,” James, 550 U.S. at 229, prompting the Court to read the examples as
at least partially intended to demonstrate the kinds of crimes which qualify (as just discussed)
and to adopt a “roughly similar” standard for comparing the listed crimes to other potential
violent felonies. Begay, 553 U.S. at 143.
As noted before, the “main risk” of burglary “arises . . . from the possibility of a face-to-
face confrontation between the burglar and a third party.” James, 550 U.S. at 203. Likewise,
possession of a sawed-off shotgun in violation of the NFA presents a “virtual inevitability that
such possession will result in violence.” Brazeau, 237 F.3d at 845 (internal quotation marks
omitted). Thus, both present “a serious potential risk of physical injury to another.” 18 U.S.C. §
924(e)(2)(B)(ii) (emphasis added). Whereas the risk of physical injury from a burglar is more
immediate, the likelihood of a very serious or even lethal injury from a sawed-off shotgun is
significantly greater. Unlike legal firearms, sawed-off shotguns “are inherently dangerous and
lack usefulness except for violent and criminal purposes” and are thus restricted by Congress.
Allegree, 175 F.3d at 651. The shortened barrel on these weapons not only makes them easier to
conceal but allows them to “like explosives . . . inflict indiscriminate carnage.” Bradford, 766 F.
Supp. 2d at 908 (citing Vincent, 575 F.3d at 825 and Upton, 575 F.3d at 825). Both burglary and
illegal possession of a sawed off shotgun facilitate violence and risk maturing into actual
physical harm to another, both demonstrate a willingness to and anticipation of committing such
violence, and both can ultimately result in grave injury or even death. While statistical
comparison of the risks of the two crimes would clearly be difficult, the Court need only find that
the potential risks associated with the two crimes are “roughly similar . . . in degree.” Begay,
30
553 U.S. at 143. A common sense adoption of the analysis above and judicial precedent both
point to an affirmative conclusion.
3. Possession of a sawed-off shotgun is sufficiently similar in degree to illegal use of explosives to satisfy the second prong of the Begay test.
Possession of a sawed-off shotgun in violation of the NFA also creates a potential risk of
physical injury that is “roughly similar” in degree to that created by illegal use of explosives. It
therefore qualifies as a violent felony for purposes of the ACCA. As previously noted, the
purpose in requiring three prior convictions for violent felonies before applying a mandatory
minimum sentence is that commission of multiple violent felonies demonstrates an increased
likelihood that the “offender, later possessing a gun, will use that gun deliberately to harm a
victim.” Begay, 553 U.S. at 145. For purposes of predicting future potential for armed violence,
possession of a sawed-off shotgun, like possession of other NFA restricted weapons such as
grenades, pipe bombs, and machine guns, is “roughly similar . . . in degree” to use of explosives
and as a result all are similarly restricted. 26 U.S.C. § 5845(a); see also U.S. SENTENCING
GUIDELINES MANUAL § 4B1.2 cmt. n.1 (2009).
Comparing the risks of various crimes to those listed specifically in § 924(e)(2)(B)(ii) of
the ACCA is made more difficult by the fact that the listed crimes “have little in common, most
especially with respect to the level of risk of physical injury they pose,” James, 550 U.S. at 229.
Further, there is no clear standard for the comparison beyond the phrase “roughly similar,” as
provided by the Supreme Court in Begay. Begay, 553 U.S. at 143. While “roughly similar” may
be imprecise, it clearly does not mean equivalent, a mistake made by the district court in
Bradford. Bradford, 766 F. Supp. 2d at 909 (quoting Vincent, 575 F.3d at 830 (Gruender, J.,
dissenting)). To a lesser extent, this mistake was also made by the Eleventh Circuit in McGill
and the Thirteenth Circuit. McGill, 618 F.3d at 1277; (R-10).
31
Beyond the fact that the plain meaning of “roughly similar” does not remotely imply a
need for equivalency of risk, the Court’s prior decision in James, which was extended by Begay,
precluded any notion that the Court intended such a standard. In James, the Court held that an
attempted burglary qualified as a violent felony under the ACCA because it produced a risk
sufficiently similar to that of an actual burglary. James, 550 U.S. at 209. The necessary
inference is that a crime may produce a “roughly similar” risk even where it has not ripened and
the risk would be greater in the completed crime than in the attempted one, as all completed
crimes must necessarily involve both the risk associated with the attempt and that associated with
the completion of the crime. Furthermore, the Court rightly observed that a substantial portion
of the risk of injury produced by a crime may occur prior to its fully ripening into overt violence.
Id.
Indeed, the risk posed by an attempted burglary that can serve as the basis for an ACCA enhancement may be even greater than that posed by a typical completed burglary. All burglaries begin as attempted burglaries. But ACCA only concerns that subset of attempted burglaries where the offender has been apprehended, prosecuted, and convicted. This will typically occur when the attempt is thwarted by some outside intervenor - be it a property owner or law enforcement officer. Many completed burglaries do not involve such confrontations.
Id. The same risk is associated with the possession of a sawed-off shotgun. For example, when
Hinkley was apprehended he was outside his home and carrying the weapon. (R-5). This
conduct created a very significant risk of physical injury to another, including the apprehending
law enforcement officers, and prior to “use” as the Bradford and McGill courts would define the
term.
The Thirteenth Circuit’s reliance on McGill is further encumbered by the Eleventh
Circuit’s failure to consider how its interpretation of the statute altered its plain meaning. The
ruling in McGill was explicitly motivated by a desire to ensure the word “use” was operative
32
within the statute, and the court concluded that holding possession of explosives to be a predicate
violent felony would “read the word . . . out of the ACCA statute.” McGill, 618 F.3d at 1279. In
so doing, the Eleventh Circuit misconstrued the use of the word “otherwise” in the ACCA
residual clause as meaning of equal danger. While the analysis above demonstrates that
possession of a sawed-off shotgun could easily meet this standard, it need not do so of necessity
because neither the word “otherwise” nor the holdings in James and Begay require such a
standard. Had Congress intended the four crimes listed in the ACCA to exemplify a minimum
risk threshold, the word “otherwise” would have been an exceedingly poor choice. Terms such
as equivalent, equal, or even similar would imply such an interpretation. The word otherwise
means “in circumstances different from those present or considered” and is typically used to
emphasize contrast rather than similarity. OXFORD UNIV. PRESS, THE OXFORD AMERICAN
COLLEGE DICTIONARY 966 (Christine A. Lindberg et al. eds., 2002). This plain meaning is
undoubtedly a key reason why the Court chose a “roughly similar” standard rather than that
adopted by the Eleventh Circuit.
In light of this analysis, it is evident that the Thirteenth Circuit’s reliance on McGill
sacrifices the meaning of the key limiting term in the ACCA’s residual clause in order to
maintain the integrity of a limiting term applied to one of four enumerated crimes, which are
useful for comparative purposes only. It is the residual clause which controls the analysis of the
crime now under consideration, and to uphold the Thirteenth Circuit would be in direct contrast
to the standards announced in both James and Begay.
4. The Federal Sentencing Guidelines for the ACCA are persuasive authority and conclude that possession of a sawed-off shotgun is a violent felony.
Possession of a sawed-off shotgun is treated as a “crime of violence” under the United
States Sentencing Guidelines (USSG). This Court should view these guidelines as persuasive
33
authority, as they are produced by the United States Sentencing Commission using criteria that
track those found in the ACCA. U.S. SENTENCING GUIDELINES MANUAL § 4B1.2 cmt. n.1
(2009). In fact, “[t]he statutory definition of ‘violent felony’ is viewed as interchangeable with
the guidelines definition of ‘crime of violence.’” United States v. Williams, 537 F.3d 969, 971
(8th Cir. 2008) (quoting United States v. Johnson, 417 F.3d 990, 996 (8th Cir. 2005)). While the
Court is not bound to follow the USSG, the Court has used it as persuasive authority for violent
felony determinations under the ACCA. James, 550 U.S. at 206-07. The Court has chosen to do
so largely because the USSG reflects empirical data about the risk potential and sentencing of a
wide variety of crimes. As a result, the Sentencing Commission “‘is better able than any
individual court to make an informed judgment about the relation between’ a particular offense
and ‘the likelihood of accompanying violence.’” Id. (quoting United States v. Doe, 960 F.2d 221,
225 (C.A.1 1992); see also United States v. Chambers, 473 F.3d 724 (C.A.7 2007) (noting the
usefulness of empirical analysis from the Commission in determining whether an unenumerated
crime poses a risk of violence).
The gun possessed by Hinkley is listed in 26 U.S.C. § 5845(a) and therefore qualifies as a
crime of violence under U.S.S.G. § 4B1.2(a). As such, it would be internally consistent for this
Court to rely on the commentary in the U.S.S.G. to find that possession of a sawed-off shotgun is
a predicate violent felony under the ACCA. See Vincent, 575 F.3d at 826. Such a finding would
also provide greater consistency in application of the law more generally, reducing confusion
over when possession of a sawed-off shotgun is or is not a “crime of violence” or “violent
felony.” The ACCA’s sentencing enhancements are not the only ones which turn on this
question, nor are they the only ones which track the USSG definitions. Finding that under some
statutes a particular definition of the USSG will be followed while elsewhere it will not will only
34
add to the extant confusion over application of mandatory minimum sentences. Such a
consequence should be avoided where it is possible to do so without offending justice. As the
discussion above has demonstrated, this is such a case and thus the persuasive power of the
USSG should be acknowledged and possession of a sawed-off shotgun labeled a crime of
violence.
C. In the alternative, the second prong of the Begay test is inconsistent with both congressional intent and the plain language of the ACCA and should be overturned.
In the alternative, this Court could choose to overturn the second prong of the Begay test.
The Supreme Court’s decision in Begay added a second prong to the test for identifying a
predicate violent felony under the ACCA, after more than twenty years of adjudication of the
statute which had produced essentially uniform results. See, e.g., United States v. Fortes, 141
F.3d 1, 7 (1st Cir. 1998) (holding that possession of a sawed-off shotgun is a “violent felony” as
defined by the ACCA); United States v. Johnson, 246 F.3d 330, 334-35 (4th Cir. 2001) (holding
that “possession of a sawed-off shotgun is a crime of violence under U.S.S.G. § 4B1.1” whose
language is identical to that in § 924(e)(2)(B)(ii) of the ACCA); United States v. Serna, 309 F.3d
859, 864 (5th Cir. 2002) (holding that “possession a sawed-off shotgun . . . poses a serious
potential risk of physical injury to another and is therefore a crime of violence under U.S.S.G. §
4B1.2(a)”); United States v. Upton, 512 F.3d 394, 404 (7th Cir. 2008) (holding that “possession
of a sawed-off shotgun constitutes a crime of violence . . . under the [ACCA]”); United States v.
Childs, 403 F.3d 970, 971 (8th Cir. 2005) (holding that “under the plain language of § 924(e) . . .
possession of a short-barreled shotgun is a violent felony”); United States v. Hayes, 7 F.3d 144,
145 (9th Cir. 1993) (holding that unlawful possession of a sawed-off shotgun is a crime of
violence for career criminal purposes); United States v. Dwyer, 245 F.3d 1168, 1172 (10th Cir.
2001) (holding that “possession of an unregistered firearm in violation of Section 5861(d) is a
35
crime of violence as defined by U.S.S.G. § 4B1.2.”). These decisions were reached without
resort to the second prong of the Begay test and relied instead on the language of the residual
clause in the ACCA or the U.S.S.G. (which are, as previously noted, identical).
The consistency of this practice across the circuits demonstrates that the plain meaning of
language has been widely interpreted not to instruct courts to invoke noscitur a sociis and
ejusdem generis as was urged by the petitioner in Begay and ultimately granted by the Court.
Reply Brief of Petitioner, Begay v. United States, 553 U.S. 137 (2008), (No. 06-11543), 2007
WL 4618313, at *11. Instead, the residual clause was “plainly included to serve as a catch-all
provision,” freeing the courts to apply the ACCA’s mandatory minimum sentences to crimes
which “otherwise” met the criteria for violent felonies set by Congress. United States v. Davis,
16 F.3d 212, 217 (7th Cir. 1994).
Had Congress intended the four crimes listed in the ACCA to serve a comparative
function it could easily have accomplished this goal by using comparative language. The easiest
way to accomplish this goal would be to place the residual clause at the beginning of
§ 924(e)(2)(B)(ii) and use phrases like “including” or “such as” to link the enumerated crimes to
the rule stated in the statute (i.e. a violent felony will be one which “involves conduct that
presents a serious potential risk of physical injury to another, such as”). Instead, Congress
placed the enumerated crimes first, ensuring that such crimes would be categorically included as
violent felonies, then added the “catch-all” provision as the general rule. That the residual clause
is separated from the enumerated crimes by the word “otherwise” which, as previously discussed,
means “in circumstances different from those present or considered” and is typically used to
emphasize contrast rather than similarity, further demonstrates that the two were not to be
36
construed as linked. OXFORD UNIV. PRESS, THE OXFORD AMERICAN COLLEGE DICTIONARY 966
(Christine A. Lindberg et al. eds., 2002).
Given that the construction of § 924(e)(2)(B)(ii) announced in Begay could have been
more easily accomplished by use of different language, and given that Congress did not amend
that language in light of numerous decisions treating the enumerated crimes and the residual
clause as analytically separate under both the ACCA and the USSG, it remains only to apply a
different construction which is a better fit. A finding that the enumerated crimes are individually
violent felonies for purposes of the ACCA’s mandatory minimum sentencing, and that all crimes
punishable by more than one year and involving “conduct that presents a serious potential risk of
physical injury to another” are also violent felonies is just such a construction. This is the most
straightforward interpretation of the actual words and phrasing contained in the statute and the
one most consistent with Congressional action during creation of the statute and in the twenty-
five years since.
Congress has tacitly endorsed this interpretation by leaving the language unaltered in the
face of numerous rulings favoring the construction advocated in this brief. What is more, it
provided an additional indication that at the time of the statute’s creation, the enumerated
offenses were intended to broaden rather than narrow § 924(e)(2)(B)(ii). In fact, the
§ 924(e)(2)(B)(ii) language was added to the ACCA in 1986 in an effort that “was uniformly
referred to as expanding the range of predicate offenses.” Taylor v. United States, 495 U.S. 575
(1990) (internal quotation marks omitted). The original ACCA statute codified in 1984 included
only robbery and burglary as offenses triggering the mandatory minimum sentence and made no
mention of any predicate violent felonies. Armed Career Criminal Act of 1984, PUB. L. NO. 98-
473, ch. 18, 98 Stat. 2185 (repealed in 1986). Two bills were proposed to expand the number of
37
offenses triggering the ACCA, and “witnesses criticized the narrower bill, H.R. 4768, for
excluding property crimes,” such as arson and burglary. Taylor, 495 U.S. at 584. It is therefore
most reasonable to conclude that the enumerated crimes were included primarily to ensure that
specific crimes against property would not be excluded when courts evaluated the proper scope
of the term “violent felony” as defined by the statute.
To establish the construction of § 924(e)(2)(B)(ii) proposed for adoption herein, this
Court would be compelled to overturn the rule announced in Begay. The Court must therefore
decide that the justifications for so doing outweigh stare decisis considerations, approaching the
problem with “the utmost caution.” State Oil Co. v. Khan, 522 U.S. 3, 20 (1997). The
presumption in favor of past rulings is “preferred . . . because it promotes the evenhanded,
predictable, and consistent development of legal principles, fosters reliance on judicial decisions,
and contributes to the actual and perceived integrity of the judicial process.” Payne v. Tennessee,
501 U.S. 808, 827 (1991). These principles, however, are better served in this case by
overturning the test announced in Begay. As described above, more than half of the circuit
courts decided the question of whether illegal possession of a sawed-off shotgun is a predicate
violent felony under either the ACCA or the identical language of the U.S.S.G. prior to the
decision in Begay. All of them answered this question in the affirmative, and each circuit’s
decision was reached without reference to the enumerated offenses contained in
§ 924(e)(2)(B)(ii). The test announced in Begay, therefore, was inconsistent with the dominant
approach to analysis of § 924(e)(2)(B)(ii), upended established legal principles, and
unnecessarily complicated the categorization of offenses resulting in a circuit split as evidenced
by the contrary judgments by the Eleventh Circuit in McGill and the Eighth Circuit in Vincent.
38
A straightforward reading of the language of § 924(e)(2)(B)(ii) would not prompt a court
to apply noscitur a sociis or ejusdem generis, but instead would result in viewing burglary, arson,
extortion and use of explosives as qualifying violent felonies in addition to those meeting the
definition of a violent felony in the residual clause. This construction gives meaning to every
word of the statute without requiring courts in future cases to perform the difficult task of
comparing the kinds and degrees of risk created by offenses based on enumerated crimes which
“have little in common, most especially with respect to the level of risk of physical injury they
pose.” James, 550 U.S. at 229.
Congress has tacitly endorsed such a reading of the ACCA by failing to amend the
language after years of rulings in more than half the circuits using this construction. Further, the
construction proposed for adoption today is also more consistent with the original intent of
Congress in 1986 when it created § 924(e)(2)(B)(ii) to expand the offenses qualifying for
mandatory minimum sentences under the ACCA. Finally, given that the Begay test was
announced only recently and has created, rather than destroying, a circuit split on the question
before the Court today, the import of stare decisis weighs in favor of overturning the Begay test.
For all of these reasons, this Court should adopt a construction of the ACCA which allows non-
enumerated felonies analyzed under § 924(e)(2)(B)(ii) of the ACCA to be viewed in light of the
residual clause alone, and without reference to the statute’s enumerated crimes.
39
PRAYER FOR RELIEF For the foregoing reasons, the Respondents respectfully request that this Court affirm the
decision of the Thirteenth Circuit Court of Appeals with respect to the protective sweep issue
and reverse with respect to the predicate violent felony issue.
Respectfully submitted,
_______________________ Team Number 3 Counsel for the Respondent March 5, 2013
