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Brief on the Merits
No. 13-201
______________________________________________
IN THE SUPREME COURT OF THE UNITED STATES
October Term, 2013
______________________________________________
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 RESPONDENT
______________________________________________
Team 14
[ii]
QUESTIONS PRESENTED
I. Can a police officer conduct a safety sweep of a residence that is not incident to an arrest
when he has consent to enter the residence but does not have probable cause or a warrant
for the search?
II. Is possession of a sawed-off shotgun a predicate “violent felony” under the Armed Career
Criminal Act?
[iii]
TABLE OF CONTENTS
QUESTIONS PRESENTED……………………………………………………………………ii
TABLE OF CONTENTS…………………………………..iii
TABLE OF AUTHORITIES………………………………….v
OPINIONS BELOW……………………………………………………………….1
CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED…………………………1
STATEMENT OF THE CASE…………………………………………………1
SUMMARY OF THE ARGUMENT………………………………………………………….3
STANDARD OF REVIEW……………………………………………………………………..7
ARGUMENT
I. The Thirteenth Circuit correctly held that a police officer may conduct a warrantless
protective sweep of a home based on reasonable suspicion and without first executing an
arrest…………………………………………………………………………………………...7
A. Officer Sanford’s brief search of Hinkley’s was constitutional because the search met the
two requirements of a protective sweep: a lawful initial confrontation and limited search
predicated on reasonable suspicion………………………………………………………..9
1. Officer Sanford’s presence in Hinkley’s home was a lawful because he had obtained
Hinkley’s voluntary consent…………………………………………………………12
2. Officer Sanford’s search complied with the requirements of a protective sweep
because he based the search on reasonable suspicion and limited the scope of the
search………………………………………………………………………………...15
a. Officer Sanford had the reasonable suspicion to justify the protective sweep of
Hinkley’s home…………………………………………………………………..15
b. Office Sanford appropriately limited the scope of his search to pursue his
reasonable suspicion of danger………………………………………………….20
II. The Thirteenth Circuit erred in holding that Hinkley was not subject to sentencing under the
Armed Career Criminal Act of 1984 because possession of a sawed-off shotgun qualifies as a
“violent felony” under the Act………………………………………………………………23
[iv]
A. Possession of a sawed-off shotgun qualifies under the ACCA’s residual clause because it
presents a substantial risk of physical injury under the following three gauges: inherent
riskiness, the United States Sentencing Guidelines, and Congressional treatment……...26
1. Sawed-off shotguns and possession thereof are inherently risky……………………27
2. Possession of a sawed-off shotgun is recognized as substantially risky by the United
States Sentencing Guidelines………………………………………………………...31
3. Congress has distinguished sawed-off shotgun as being substantially risker than other
weapons. …………………………………………………………………………….32
B. The exception for crimes akin to strict liability does not apply in this case because
possession of a sawed-off shotgun is not a strict-liability crime………………………...34
1. Even if the court expands the strict liability exception, possession is still included
under the ACCA, because it is a purposeful, violent, and aggressive crime………36
APPENDIX
[v]
TABLE OF AUTHORITIES
CONSTITUTIONAL PROVISIONS
U.S. Const. amend. IV.................................................................................................................... 7
CASES
Alabama v. White, 496 U.S. 329 (1990) ...................................................................................... 16
Begay v. United States, 553 U.S. 137, 148 (2008) ............................................................... passim
Bumper v. North Carolina, 391 U.S. 543 (1968) ................................................................. passim
Carroll v. United States, 267 U.S. 132 (1925) ....................................................................... 15, 16
Chambers v. United States, 555 U.S. 122 (2009) ................................................................. passim
Florida v. Jimeno, 500 U.S. 251 (1991) ............................................................................... passim
Hatcher v. Mentas, 680 F.2d 438 (6th Cir. 1982) ........................................................................ 17
Illinois v. Rodriguez, 497 U.S. 177 (2005) .................................................................................. 12
Illinois v. Wardlow, 528 U.S. 119 (2000) ............................................................................. passim
James v. United States, 550 U.S. 192 (2007) ....................................................................... passim
Katz v. United States, 389, U.S. 347 (1967) ................................................................................ 12
Kentucky v. King, 131 S. Ct. 1849 (2011)...................................................................................... 4
Maryland v. Buie, 494 U.S. 325 (1990) ................................................................................passim
Michigan v. Long, 463 U.S. 1032 (1983) ................................................................................ 1, 11
Schneckcloth v. Bustamonte, 412 U.S. 219 (1973) ............................................................... passim
Stinson v. United States, 508 U.S. 36 (1993) ............................................................................... 31
Staples v. United States, 511 U.S. 600 (1994) .......................................................................passim
State v. Wells, 539 So.2d 464 (1989) ........................................................................................... 14
Sykes v. United States, 131 S. Ct. 2267 (2011) ..................................................................... passim
Taylor v. United States, 495 U.S. 575 (1990) ....................................................................... passim
Terry v. Ohio, 392 U.S. 1, 22 (1968) .....................................................................................passim
United States v. Acosta-Sierra, 690 F.3d 1111 (9th Cir. 2012) ................................................... 25
United States v. Amos, 501 F.3d 524 (6th Cir. 2007) ........................................................... passim
United States v. Bishop, 453 F.3d 30 (1st Cir. 2006) ................................................................... 28
United States v. Boyce, 633 F.3d 708 (8th Cir. 2011) ................................................................. 29
[vi]
United States v. Brazeau, 237 F.3d 842 (7th Cir. 2001) ........................................................ 28, 30
United States v. Chavez, 281 F.3d 479 (5th Cir. 2002) ………………………………...……….. 7
United States v. Davis, 290 F.3d 1239 (10th
Cir. 2002) ................................................................ 9
United States v. Dismuke, 593 F.3d 582 (7th Cir. 2010) ............................................................. 36
United States v. Duerson, 25 F.3d 376 (6th Cir. 1994) ............................................................... 28
United States v. Dwyer, 245 F.3d 1168 (10th Cir. 2001) ............................................................. 28
United States v. Fortes, 141 F.3d 1 (1st Cir. 1998) ..................................................................... 29
United States v. Garza, 125 Fed. App’x 927 (10th Cir. 2005) ………………………………….. 3
United States v. Gould, 364 F.3d 578 (5th Cir. 2003) ...........................................................passim
United States v. Hayes, 7 F.3d 144 (9th Cir.1993) ................................................................ 28, 30
United States v. Hood, 628 F.3d 669 (4th Cir. 2010) .................................................................. 28
United States v. Huffhines, 967 F.2d 314 (9th Cir.1992) ............................................................. 29
United States v. Knights, 534 U.S. 112 (2001) ............................................................................ 10
United States v. Jennings, 195 F.3d 795 (5th Cir. 1999) ....................................................... 29, 33
United States v. Lillard, 685 F.3d 773 (8th Cir. 2012).......................................................... passim
United States v. Marquez, 626 F.3d 214 (5th Cir. 2010) ............................................................. 29
United States v. Martins, F.3d 139 (1st Cir. 2005) ............................................................ 8, 16, 18
United States v. McConnell, 605 F.3d 822 (10th Cir. 2010) ....................................................... 36
United States v. Michel, 446 F.3d 1122 (10th Cir. 2006) ............................................................ 35
United States v. McGill, 618 F.3d 1273 (11th Cir. 2010)………………………………………... 7
United States v. Miller, 430 F.3d 93 (2nd Cir. 2005) ............................................................passim
United States v. Mobley, 687 F.3d 625 (4th Cir. 2012) ................................................... 29, 36, 37
United States v. Perez-Jiminez, 654 F.3d 1136 (10th Cir. 2011) ........................................... 29, 30
United States v. Polk, 577 F.3d 515 (3d Cir. 2009) ..................................................................... 30
United States v. Ross, 456 U.S. 798 (1982) ................................................................................. 13
United States v. Reid, 226 F.3d 1020 (9th Cir. 2000) ............................................................passim
United States v. Romain, 339 F.3d 63 (1st Cir. 2004) .....................................................13, 16, 18
United States v. Serrano, 406 F.3d 1208 (10th Cir. 2005) ...........................................................35
United States v. Serna, 309 F.3d 859 (5th Cir. 2002) ........................................................... passim
United States v. Taylor, 248 F. 3d 506 (6th Cir. 2001) ............................................................ 9, 16
United States v. Torres-Castro, 470 F.3d 992 (10th Cir. 2006) ................................................ 3, 9
[vii]
United States v. Upton, 512 F.3d 394 (7th Cir. 2008) ................................................................. 33
United States v. Vincent, 575 F.3d 820 (8th Cir. 2009) ..................................................... 7, 27, 30
United States v. West, 550 F.3d 952 (10th Cir. 2008) ................................................................. 36
United States v. Zuniga, 553 F.3d 1330 (10th Cir. 2009) ...................................................... 30, 31
Wyoming v. Houghton, 526 U.S. 295 (2001) ................................................................................. 8
STATUTES AND REGULATIONS
18 U.S.C. § 111 (2006)........................................................................................................... 24, 25
18 U.S.C. § 922 (2006)................................................................................................................... 5
18 U.S.C. § 924 (2006) ..........................................................................................................passim
26 U.S.C. § 5845 (2006) ........................................................................................................ 29, 31
26 U.S.C. § 5861 (2006).........................................................................................................passim
Armed Career Criminal Act of 1984 (ACCA). Pub. L. No. 98-473, 98 Stat. 2185....................... 5
National Firearms Act of 1934, Pub. L. No. 73-474, 48 Stat. 1236................................. 31, 32, 33
LEGISLATIVE HISTORY
H. Rep. No. 82-1714 (1934) ........................................................................................................ 32
H. Rep. No. 73-1780 (1934) ........................................................................................................ 32
S. Rep. No. 90-1501 (1968) ......................................................................................................... 33
H.R. Rep. No. 90-1956 (1968) (Conf. Rep.) ................................................................................ 33
UNITED STATES SENTENCING GUIDELINES
U.S.S.G. § 2A2.2(b)(3) ................................................................................................................ 25
U.S.S.G. § 4B1.2....................................................................................................................... 6, 31
MISCELLANEOUS
None.
[1]
OPINION BELOW
The opinion of the Thirteenth Circuit Court of Appeals is recorded as No. 12-1711.
STATEMENT OF JURISDICTION
Statement of jurisdiction omitted pursuant to Elon Moot Court Rule IV(B)(1).
CONSTITUTIONAL AND STATUTORY PROVISIONS
The Fourth Amendment of the United States Constitution states:
“The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but
upon probable cause, supported by oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be seized.”
U.S. Const. amend IV.
Relevant statutes and regulations are provided in the appendix.
STATEMENT OF THE CASE
On the evening of June 1, 2011, a robbery occurred in a North Greene neighborhood. R.
at 5. As defendant Roy Hinkley sat down for dinner, police were in hot pursuit of the suspected
robber. Id. Officer Terrence Sanford knocked on Mr. Hinkley’s door and Hinkley answered. Id.
Officer Sanford told Hinkley that another burglary had occurred in the neighborhood. Id. This
was the latest in a series of robberies, the most recent of which culminated in the shooting and
killing of Hinkley’s neighbor. Id. In another such robbery, of the house two doors down from
Hinkley’s, the robber wielded a semi-automatic handgun to threaten the homeowner. R. at 4.
Officer Sanford explained that the burglar whom police sought matched the description of the
[2]
suspect in the recent killing, adding that neighborhood residents had seen the burglar flee
through the rain toward Hinkley’s home. R. at 5. The police were knocking on every door in the
neighborhood to make sure the burglar was not hiding in any of the homes. Id.
Officer Sanford asked Hinkley if he could come inside to get more information. R. at 5-
6. Hinkley consented, and Officer Sanford proceeded into the living room. R. at 6. Officer
Sanford asked Hinkley if he could look around the home to ensure that the burglar was not
hiding out in Hinkley’s home. Id. Officer Sanford was familiar with the layout of the homes in
the neighborhood because they shared the same floor plan. Id. Hinkley declined Officer
Sanford’s request to search the home and said he kept his back door locked and would have
heard if someone had entered. Id. Hinkley did not ask the officer to leave. Id. Officer Sanford
walked toward the kitchen; he knew there was access to the home from the kitchen’s back door.
Id. Officer Sanford opened the door from the living room to the kitchen and, before even
entering the kitchen, saw a semi-automatic handgun on the counter. Id. Officer Sanford arrested
Hinkley for being a felon in possession of a firearm. Id.
Hinkley filed a pretrial motion to suppress the handgun found in his kitchen, but the
motion was denied. R. at 2. Hinkley then pled guilty to being a felon in possession of a firearm,
though he reserved the right to appeal the denial of his motion to suppress. Id. Hinkley received
a sentence of 180 months imprisonment and five years of supervised release, the minimum
sentence required by the Armed Career Criminal Act of 1984 (ACCA). Id. The ACCA dictates
mandatory minimum sentences for felons in possession of a firearm with three or more predicate
felonies. Hinkley had three previous felony convictions prior to his latest arrest: (1) A
conviction for first-degree burglary as a juvenile; (2) A conviction for arson; and (3) A
conviction for possession of an unregistered sawed-off shotgun.
[3]
Summary of the Argument
In its quest to balance both the individual’s interest in personal security and privacy, and
the government’s weighty charge to ensure public safety, the Court assesses government action
against the reasonableness standard of the Fourth Amendment. See, e.g., Terry v. Ohio, 392 U.S.
1, 9, 22-25 (1968). The Fourth Amendment protects one’s right “to be secure in their persons,
houses, papers and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV.
The Court has consistently held that certain warrantless searches and seizures are reasonable, in
light of the individual and government interests at stake. See, e.g., Terry, 392 U.S. 1; Michigan
v. Long, 463 U.S. 1032 (1983). One such search, the protective sweep, provides police officers a
practical, limited method of ensuring their personal safety in situations that present heightened
dangers to their personal security. Maryland v. Buie, 494 U.S. 325, 325 (1990). The Thirteenth
Circuit correctly held that a police officer may conduct a protective sweep of an individual’s
home based on reasonable suspicion of danger.
Some courts, in an effort to protect personal privacy, have misconstrued this Court’s
seminal treatment of protective sweeps. Buie, 494 U.S. 325; see, e.g., United States v. Garza,
125 Fed. App’x 927, 931 (10th Cir. 2005); United States v. Reid, 226 F.3d 1020, 1027 (9th Cir.
2000). Faced with a protective sweep conducted incident to arrest, that Buie court narrowed its
descriptions of a sweep to accommodate that context. See Buie, 494 U.S. at 325. As result, a
few circuits have misread the Court’s emphasis of a specific factual context as a requirement that
protective sweeps accompany an arrest. See, e.g., United States v. Torres-Castro, 470 F.3d 992,
998 (10th Cir. 2006); Reid, 226 F.3d at 1027. The Court’s holding and method of analysis in
Buie, however, apply Terry v. Ohio to permit warrantless protective sweeps of the home
environment. Buie, 494 U.S. at 334 (discussing Terry, 392 U.S. 1). The Terry doctrine, as
[4]
applied in Buie, tests protective sweeps against two requirements. First, the government must
demonstrate that the police officer lawfully entered the home. See Buie, 494 U.S. at 330.
Second, it must show that the sweep stemmed from an officer’s reasonable suspicion of danger
and remained limited in scope. See Buie, 494 U.S. at 334; see also United States v. Gould, 364
F.3d 578, 587 (5th Cir. 2004) abrogated by Kentucky v. King, 131 S. Ct. 1849 (2011). Protective
sweeps that meet these requirements remain squarely within the ambit of the Fourth Amendment,
and do not infringe upon an individual’s personal privacy and security.
An occupant’s voluntary consent affords police officers voluntary entry to a residence.
See Schneckcloth v. Bustamonte, 412 U.S. 219 (1973). A coerced consent is not voluntary.
Bumper v. North Carolina, 391 U.S. 543, 550 (1968). Officer Sanford’s request to enter
Hinkley’s home and discuss the situation provided Hinkley the opportunity to decline or consent.
Hinkley consented, and absent evidence of coercion, such consent is voluntary.
Once lawfully in the home, a police officer may conduct a protective sweep based on his
reasonable suspicion of danger. See Buie, 494 U.S. at 334. Reasonable suspicion stems from
“articulable facts and rational inferences from those facts” indicating danger to police officers.
Terry, 392 U.S. at 21. Only the intersection of several such facts, however, at a specific moment
in time, meets the threshold of reasonable suspicion. See Terry, 392 U.S. at 6; Buie, 494 U.S. at
328. Once the protective sweep begins, it can last no longer than necessary to dispel this
reasonable suspicion and extend no further than places where an individual may be hiding. See
Buie, 494 U.S. at 335-336. Officer Sanford faced just such an intersection of facts: an ongoing
spree of robberies in the immediate area, a robbery victim’s murder the previous week, another
robbery that night, reports that this robber matched the description of the murder, and eyewitness
testimony that the robber fled in the direction of Hinkley’s house. R. 5-6. Officer Sanford
[5]
appropriately limited the spatial and temporal scope of the search, thus executing a lawful
protective sweep.
Though correct in upholding the protective sweep, the Thirteenth Circuit Court of
Appeals erred in holding that Petitioner was not subject to sentencing under the Armed Career
Criminal Act of 1984 (ACCA). Pub. L. No. 98-473, 98 Stat. 2185 (codified as amended at 18
U.S.C. § 924 (2006)). Possession of a sawed-off shotgun does qualify as a “violent felony”
under the Act, and therefore, sentencing Petitioner under the ACCA would have been proper.
Possession of a firearm by a felon is a federal crime. 18 U.S.C. § 922 (2006). The
maximum sentence for this crime is ten years, 18 U.S.C. § 924 (2006); however, there is a
mandatory minimum sentence of 15 years for any felon with three predicate felonies. 18 U.S.C.
§ 924(e)(2)(B). Predicate felonies are divided into serious drug offenses or violent felonies.
Violent felonies are further divided into physical force offenses, the enumerated offenses, and
other offenses falling under the residual clause of the ACCA. The residual clause includes any
offense that “presents a serious risk of physical injury to another.” 18 U.S.C. 924(e)(2)(B).
When considering whether an offense presents a serious risk of physical injury, this Court
has explicitly stated that it employs a categorical approach. Taylor v. United States, 495 U.S.
575 (1990). This means that, instead of considering the offense as committed, the Court looks
only to the fact of conviction and the elements of the crime. Id. at 602. The Court employs what
we label the soft-categorical approach. Under this approach, the reviewing court considers the
offense as “ordinarily” committed, as opposed to considering the offense in all its potential
occurrences. James v. United States, 550 U.S. 192, 208 (2007). Possession of a sawed-off
shotgun qualifies as a predicate felony under the ACCA’s residual clause because as ordinarily
committed, it “presents a serious potential risk of physical injury to another”. 18 U.S.C. § 924.
[6]
This Court has only found an offense’s riskiness not to be dispositive in one ACCA residual
clause case. Begay v. United States, 553 U.S. 137 (2008). Yet even there, the Court presumed
riskiness before continuing with its analysis. Begay, 553 U.S. at 141.
To determine whether an offense presents a serious risk of physical injury, the Court
considers the following: a commonsense assessment of its inherent risk, directions from the U.S.
Sentencing Guidelines Manual, and evidence from other Congressional statutes. Possession of a
sawed-off shotgun is inherently risky, because it is a dangerous “weapon[] of war,” United States
v. Serna, 309 F.3d 859, 863 (5th Cir. 2002). Even possession that has not yet ripened into use
presents a serious risk of harm because it shows that the possessor is “prepared to use violence if
necessary and is ready to enter into conflict . . . .” United States v. Lillard, 685 F.3d 773, 776
(8th Cir. 2012) (quotation marks omitted) cert. denied, 2013 WL 598580 (U.S. Feb. 19, 2013).
This inherent riskiness has been reaffirmed by the United States Sentencing Commission, as
evidenced by their inclusion of possession of a sawed-off shotgun as a “crime of violence.” U.S.
Sentencing Guidelines Manual § 4B1.2 (2012). This provision mirrors the ACCA’s “violent
felony” definition. 18 U.S.C. § 924(e)(2)(B). Finally, Congress has specified that it finds
sawed-off shotguns particularly risky by targeting them with special regulations and prohibitions
in important gun statutes. See, e.g., 26 U.S.C. §§ 5801-5872 (2006).
In Begay, the Court declined to include driving under the influence (DUI) as an ACCA
residual clause offense because it determined that DUI was essentially a strict liability crime.
Begay, 553 U.S. at 145-6. They found that DUI was not “purposeful, violent, and aggressive.”
Id. at 147-8. Possession of a sawed-off shotgun does not fall within the Begay exception because
it is not a strict liability crime; possession of a sawed-off shotgun requires a mens rea of
knowledge or purpose. Staples v. United States, 511 U.S. 600, 602 (1994). Weapons possession
[7]
crimes, as inchoate offenses, are not precluded under the ACCA’s residual clause. See James v.
United States, 550 U.S. 192 (2007) (holding that the inchoate crime of attempted burglary was
included under the ACCA’s residual clause). Finally, even if the Court expands Begay’s
exception for “crime[s] akin to strict liability, negligence [or] recklessness,” Sykes v. United
States, 131 S. Ct. 2267, 2276 (2011), possession of a sawed-off shotgun is still included under
the ACCA’s residual clause because it is purposeful, violent, and aggressive. Begay, 553 U.S. at
145.
STANDARD OF REVIEW
I. The Court reviews de novo the constitutionality of the search. United States v. Chavez,
281 F.3d 479, 482 (5th Cir. 2002).
II. Whether a prior conviction for possession of a sawed-off shotgun qualifies as a predicate
violent felony under the Armed Career Criminal Act of 1984 (ACCA) is a question of
law that is reviewed de novo. See e.g., Sykes, 598 F.3d at 335 aff'd, 131 S. Ct. 2267 (U.S.
2011); United States v. Vincent, 575 F.3d 820, 822 (8th Cir. 2009); United States v.
McGill, 618 F.3d 1273, 1274-75 (11th Cir. 2010).
ARGUMENT
I. The Thirteenth Circuit correctly held that a police officer may conduct a warrantless
protective sweep of a home based on reasonable suspicion without executing an arrest.
The Fourth Amendment protects “the right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV.
To determine what searches and seizures are reasonable the Supreme Court has weighed two
competing interests: the individual citizen’s significant stake in personal privacy and security,
and the government’s charge to protect the public from crime. See, e.g., Terry, 392 U.S. 1, 22-25
[8]
(1968); Wyoming v. Houghton, 526 U.S. 295, 300 (2001) (stating that the Court determines
reasonableness by “assessing” both “the degree to which [the government] intrudes upon
individual privacy” and “promotion of legitimate government interests”). The Court has weighed
the latter interest heavily and has consistently held that police officers faced with dangerous
situations must sometimes execute a search or seizure without first obtaining a warrant or
demonstrating probable cause. See, e.g., Terry, 392 U.S. 1 (holding that an officer may execute a
stop-and-frisk upon reasonable suspicion that he is in danger). The protective sweep is one such
search.
The protective sweep is a “cursory visual inspection” of the premises aimed at ensuring
officer safety. See Buie, 494 U.S. at 325 (describing the protective sweep only in the context of
an arrest). In an extension of its analysis in Terry, the Court has held that a protective sweep
may occur pursuant to an officer’s reasonable suspicion of harm. See Buie, 494 U.S. at 333.
Though some circuit courts have misconstrued the Court’s articulation of the protective sweep,
the Supreme Court and myriad circuits have held that a protective sweep of the home may occur
without an arrest. See Buie, 494 U.S. 333; United States v. Gould, 364 F.3d 578 (5th Cir. 2004),
United States v. Miller, 430 F.3d 93 (2nd Cir. 2005); United States v. Martins, 413 F.3d 139 (1st
Cir. 2005). Police officers must meet two requirements to effect a lawful, warrantless protective
sweep of the home: First, they must be lawfully present in the residence. See, e.g., Buie, 494
U.S. at 330. Second, they must execute a limited search predicated on reasonable suspicion of
danger. See Buie, 494 U.S. at 330; Terry, 392 U.S. 1. Officer Sanford met both of these
requirements during his interaction with Hinkley. He obtained Hinkley’s voluntary consent
before entering the residence, and he executed a limited sweep based on his reasonable suspicion
that a murderer might be hiding in the home and posing a serious threat to his safety. Thus, this
[9]
Court should affirm the 13th Circuit’s holding and conclude that a police officer may conduct a
warrantless protective sweep of the home without executing an arrest.
A. Officer Sanford’s brief search of Hinckley’s home was constitutional because the
search met the two requirements of a protective sweep: a lawful initial confrontation and
limited search predicated on reasonable suspicion.
Police officers conduct protective sweeps to protect their safety, both incident to and
outside the context of arrests. See, e.g., Buie, 494 U.S. 325; Gould, 364 F.3d 578; Miller, 430
F.3d 93. In Buie, the Court noted both contexts but focused on the latter, holding that protective
sweeps incident to in-home arrests comply with the Fourth Amendment if police officers have a
“reasonable belief that that area to be swept harbors an individual posing a danger to those on the
arrest scene.” Buie, 494 U.S. at 337. This simple, fact-specific holding has been misconstrued,
leading some courts to rewrite Buie as requiring that all protect sweeps be preceded by an arrest.
See, e.g., Torres-Castro, 470 F.3d at 998 (stating that protective sweeps must occur incident to
arrest, either before or “quickly thereafter” a search); Reid, 226 F.3d at 1027; United States v.
Davis, 290 F.3d 1239 (10th Cir. 2002);. Yet Buie itself and myriad circuits clarify that there is
no arrest prerequisite to the protective sweep. See Buie, 494 U.S. at 333, 337; Gould, 364 F.3d at
584; Miller, 430 F.3d at 100; United States v. Taylor, 248 F. 3d 506, 513 (6th Cir. 2001).
Nowhere in Buie did the Court hold that any and all protective sweeps must occur
incident to an arrest. The Court explicitly states that while a precautionary search of the
immediate area around an arrest can occur without any suspicion, “[b]eyond that . . . there must
be articulable facts which, taken together with 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.” Buie, 494 U.S. at 334. Thus, beyond the
immediate context of an arrest, an officer must achieve reasonable suspicion to conduct a
[10]
protective sweep. Far from prohibiting protective sweeps outside the context of an arrest, this
holding acknowledges and allows such searches, even providing police officers a roadmap of
rules to follow. Id. at 334.
Restricting protective sweeps to the context of arrests would misconstrue both the
language and logic of the Court’s Buie decision. The Buie Court did confine its definition of the
protective sweep to the context of arrests, but only because the specific protective sweep at issue
occurred during an officer’s execution of an arrest warrant. See Buie, 494 U.S. at 327-28.
Accordingly, in such definitions, the Court addressed only the narrow question of what level of
suspicion justifies an officer’s warrantless protective sweep during an in-home arrest. Id. at 337.
For a court to narrow Buie’s holding into a requirement that an arrest precede a protective sweep
would be to hold “that an opinion upholding the constitutionality of a particular search implicitly
holds unconstitutional any search that is not like it.” United States v. Knights, 534 U.S. 112, 117
(2001). The Ninth Circuit has committed this logical fallacy, mistaking the Buie Court’s
context-specific definition of a protective sweep for a general requirement that the search follow
an arrest. Reid, 226 F.3d at 1027.
The Court’s logic in upholding the protective sweep applies far beyond the context of
arrests. Buie, 494 U.S. at 333. The Court weighed heavily the danger facing police officers in
an unfamiliar, confined space, noting that an individual’s home, as opposed to a public street,
places officers at a distinct spatial disadvantage: once on a dangerous individual’s turf,
policemen are more susceptible to a surprise attack. Id. (explaining that “an ambush in a
confined setting of unknown configuration is more to be feared than it is in open, more familiar
surroundings”). Yet such heightened threats to personal safety arise regardless of whether the
police are executing an arrest warrant; in fact, the likelihood of an ambush is even greater if the
[11]
police have not yet executed an arrest. See, e.g., Miller, 430 F.3d 93 (“Buie’s logic therefore
applies with equal force when officers are lawfully present in a home for purposes other than the
in-home execution of an arrest warrant, at least where their presence may expose the officers to
danger that is similar to, or greater than, that which they would face if they were carrying out an
arrest warrant.”). Myriad courts have echoed this sentiment, underscoring the impracticality of
restricting protective sweeps to the execution of arrests. See, e.g., Gould, 364 F.3d at 590. As
the Fifth Circuit noted, such a rule would both require officers to forego consensual entries and
“would prevent them, once having so entered, from taking reasonable, minimally intrusive,
means for self-protection when reasonable suspicion of ambush arises.” Id.
Though there is no arrest prerequisite to the protective sweep, this limited search must
satisfy two criteria to comply with the Fourth Amendment: First, the officer’s entry to the home
must prove lawful, and second, the search must remain limited in scope and predicated on
reasonable suspicion of danger to officers. See Buie, 494 U.S. 337; Gould, 364 F.3d 587; Miller,
430 F.3d 93. This line of analysis, applied in Buie, stems from Terry, in which the court
established a two-prong approach to test the reasonableness of a seizure and search under the
Fourth Amendment. See Terry, 392 U.S. 1. The Court assessed both “whether the officer’s
action was justified at its inception, and whether it was reasonably related in scope to the
circumstances which justified the interference . . . .” Id. at 19-20. The Terry court required
officers to demonstrate that they had reasonable suspicion of danger both upon the officer’s first
contact with the suspect and a continuation of that reasonable suspicion to justify the extent of
the search. Id. Since Terry, the Court has applied the doctrine to uphold a broad array of
warrantless searches. See, e.g., Long, 463 U.S. 1032 (holding that Terry applies to a roadside
encounter and justifies a warrantless search of a vehicle); Buie, 494 U.S. at 334 (holding that the
[12]
requirement of reasonable suspicion for a protective sweep is “no more and no less than was
required in Terry”).
Courts have applied a slightly modified Terry test to address in-home searches like the
protective sweep. Instead of asking whether the initial confrontation was based on reasonable
suspicion, Terry, 393 U.S. 1, courts ask whether the officer’s presence in the home was lawful.
See, e.g., Buie, 494 U.S. at 330; Gould, 364 F.3d at 587 (stating that, in compliance with Buie,
police cannot enter home illegally, and their presence “must be for a legitimate law enforcement
purpose.”) The second prong of the Terry doctrine, requiring that the search remain limited and
predicated on reasonable suspicion, applies just the same in the home context. See, e.g., Buie,
494 U.S. 325; Gould, 364 F.3d 578. Since Officer Sanford’s search occurred in Hinckley’s
home, the protective sweep must be assessed against this modified Terry test.
1. Officer Sanford’s entry to Hinkley’s home was constitutional because he had obtained
his voluntary consent.
A warrantless search is per se unreasonable unless conducted pursuant to a few long-
recognized exceptions, including consent. See Schneckcloth v. Bustamonte, 412 U.S. 219, 219
(1973) (collecting cases); see, e.g., Katz v. United States, 389 U.S. 347 (1967). Consent must be
voluntary; it must not “be coerced, by explicit or implicit means, by implied threat or covert
force.” Schneckloth, 412 U.S. at 228; see also Bumper, 391 U.S. 543, (1968). The consenting
individual must have actual or apparent authority to comply with an officer’s requested search.
Illinois v. Rodriguez, 497 U.S. 177 (2005). When the state justifies a search through an
individual’s consent, it bears the burden of proving that the consent was voluntary. Bumper, 391
U.S. at 548. Courts examine the totality of the circumstances, including the “possibly vulnerable
subjective state of the person who consents,” to decide the voluntariness of an individual’s
[13]
consent. Schneckloth, 412 U.S. at 226, 229. An individual need not know he has the right to
refuse a search in order to effect voluntary consent. Id. at 234.
Courts scrutinize an officer’s stated general objective in deciding whether consent was
voluntary. See United States v. Romain, 339 F.3d 63, 69 (1st Cir. 2004); Bumper, 391 U.S. at
550. In Romain, an officer explicitly and quite simply asked to enter an individual’s home and
“look around the flat.” Romain, 339 F.3d at 69. The court held that this transparent request,
coupled with an authorized occupant’s “welcoming” in of the officer, constituted voluntary
consent. Id. at 69. In contrast, policemen in Bumper appeared on a doorstep and truthfully
declared possession of a search warrant; the occupant opened the door to her home. See Bumper,
391 U.S at 546. Arguing before the Court, the government relied on the occupant’s consent
rather than the search warrant to justify the search. Bumper, 391 U.S. 543. The Supreme Court
rejected the government’s reliance on the occupant’s “consent,” holding that an officer’s claim of
power to search a home under a warrant constitutes coercion. Id. at 550. The officers’ statement
of their general object misled the occupant because it suggested that she could not refuse the
search. See id. at 550.
Individuals may qualify their consent and effectively limit the scope and extent of a
consensual search. See Florida v. Jimeno, 500 U.S. 251, 252 (1991). Yet if an individual does
not articulate the scope of a search, then the “expressed object” of the search, namely the item or
person the officer seeks, defines its scope. See United States v. Ross, 456 U.S. 798, 820-821
(1982). In Jimeno, a police officer asked a stopped driver if he could search his car, explaining
that he suspected the driver of possessing narcotics. Jimeno, 500 U.S. at 251.The driver said he
“had nothing to hide” and gave permission for the officer to search the car. Id. at 249-250. The
court held that the officer’s stated general object, searching the car for drugs, encompassed
[14]
searching containers in the car, since “a reasonable person may be expected to know that
narcotics are generally carried in some form of a container.” Id. at 252. The Court
acknowledged that the driver’s consent would not, however, reasonably have extended to a
locked briefcase within the trunk. Id. at 252 (citing the facts and contrary holding of State v.
Wells, 539 So.2d 464 (1989)).
Turning to the facts of the present case, Officer Sanford’s exchange with Hinkley proves
he had obtained his voluntary consent before entering the home. Officer Sanford phrased his
general object as a request, asking if he could enter Hinkley’s home “to ask him a few
questions.” R. at 5. This request, unlike the Bumper officers’ declaration of authority to enter,
Bumper implied no automatic right of police entry. Bumper, 391 U.S at 546. On the contrary,
Sanford’s request highlighted that Hinkley controlled the request. Though Sanford did not need
to inform Hinkley of his right to refuse consent, see Schneckloth, 412 U.S. at 234, he nonetheless
appraised Hinkley of his right to refuse or consent by asking for entry rather than merely stating
his desire to enter. R. at 5.
The scope of Sanford’s request must be assessed against a reasonable interpretation of the
conversation. Jimeno, 500 U.S. at 252. Prior to requesting entry to ask questions, Sanford
explained the ongoing police investigation and his goal of ensuring that the burglar was not
hiding out in any homes. R. at 5. A reasonable occupant would infer by Sanford’s subsequent
request that he wanted to enter the home to gain more information about the robber’s
whereabouts. Hinkley may not have assumed that Officer Sanford’s entry would culminate in a
protective sweep or a brief search. At the very least, however, Hinkley should have expected
that Sanford would be asking him questions and making observations from the entryway.
[15]
The record contains no evidence of coercion that might otherwise nullify Hinkley’s
consent. Sanford noted the heavy rain during his initial conversation with Hinkley; however, this
casual observation hardly rises to the threshold of coercion articulated in Bumper. Bumper, 391
U.S. 543. There is no evidence that Hinkley was in a “vulnerable subjective state” that need be
factored into the consent determination. See Schneckloth, 412 U.S. at 228. He was “surprised”
by the officer’s knock, R. at 5, yet such surprise would not reasonably diminish one’s capacity to
refuse consent. Absent evidence of coercion, Officer Sanford’s entry to Hinkley’s home must be
upheld as consensual.
2. Officer Sanford’s search complied with the requirements of a protective sweep
because he based the sweep on reasonable suspicion and limited its scope.
a. Officer Sanford had the requisite reasonable suspicions to justify the protective sweep
of Hinkley’s home.
In Terry v. Ohio, the Supreme Court abandoned the warrant requirement for some Fourth
Amendment searches and held that a warrantless search passes constitutional muster on the
lesser basis of “reasonable suspicion” of danger to officers. Terry, 392 U.S. at 27-30. The Court
said reasonable suspicion arises from “specific and articulable facts which, taken together with
rational inferences from those facts,” justify the “intrusion.” Id. at 21. Officers must meet this
threshold before effecting a search; an officer’s mere “inarticulate hunch” or good faith belief
that an individual presents danger will not suffice. Id. at 22.
Reasonable suspicion demands very little in terms of factual basis in contrast to probable
cause. Probable cause is a higher standard of suspicion required to obtain arrest and search
warrants. It requires that the officers have a reasonable belief based on “facts and circumstances
within their knowledge and of which they had reasonably trustworthy information” that a crime
is occurring, or that the evidence they seek is in the place to be searched. Carroll v. United
[16]
States, 267 U.S. 132, 161 (1925). The government presented a fact pattern meeting this high
threshold in United States v. Taylor: officers arrived at the apartment of a murder suspect, saw
marijuana in plain view, observed the defendant acting “nervously,” and heard noises indicating
others’ presence in the defendant’s apartment. Taylor, 248 F.3d 506.The Sixth Circuit held that,
“given the totality of the circumstances,” the officers had probable cause to believe people were
hiding in the apartment and were justified in making a protective sweep. Id. at 514. In contrast,
the reasonable suspicion standard simply asks that an officer’s belief of present danger prove
“reasonable” given the known circumstances. Terry, 392 U.S. at 27.
Since the reasonable suspicion standard is markedly lower than probable cause, factual
requirements for probable cause loosen in the context of reasonable suspicion. Although an
officer may not “indiscriminately credit gossip or innuendo” to establish reasonable suspicion,
Romain, 393 F.3d at 71, he may credit less dependable information than that required for
probable cause. Alabama v. White, 496 U.S. 329, 330 (1990). The Court held in White that
reasonable suspicion can be reached with information both different “in quantity or content than
that required to establish probable cause” and “less reliable than that required to show probable
cause”. Id. at 330.
To distinguish between minimal facts constituting a mere “inarticulate hunch” of danger
and the “specific and articulable facts” that establish reasonable suspicion, courts examine both
the quantity and quality of information relied on by the officer. See Illinois v. Wardlow, 528
U.S. 119 (2000); Gould, 336 F.3d 578; Martins, 413 F.3d 139. Merely one fact suggesting crime
or danger will not suffice. An officer’s mere presence in a high-crime area, for example, fails to
meet the reasonable suspicion threshold. See Wardlow, 528 U.S. 119. Similarly, the arrest of a
drug dealer does not, on its own, constitute reasonable suspicion of danger to a police officer.
[17]
Hatcher v. Mentas, 680 F.2d 438, 444 (6th Cir. 1982) (holding that without evidence that another
person was in his home, the drug dealer’s arrest did not constitute reasonable suspicion). In
Reid, police officers presented more in quantity but not enough in quality to reach the reasonable
suspicion threshold. See Reid, 226 F.3d at 1023. Officials contended that their presence at the
apartment of a suspected drug dealer’s presumed associate, the associate’s act of slamming and
locking the door on officers, and his attempted flight constituted reasonable suspicion for a
protective sweep. Id. at 1023. Noting that the officers did not hear any sounds in the apartment
suggesting that someone else was inside, the court concluded that these facts would not lead
reasonable person would have believed the apartment held a dangerous person. Id. at 1023,
1027. Thus, the reasonable suspicion threshold was not met.
Courts most often find reasonable suspicion where myriad relevant facts intersect at a
specific place and moment in time to indicate a dangerous situation for officers. See, e.g., Terry,
392 U.S. 1. The suspects in Terry first drew a police officer’s attention when, on a public street,
they passed and peered into a jewelry storefront window approximately five times each,
intermittently huddling to converse with a third man. Id. at 5, 6. Suspecting that the men were
planning a robbery and thus armed, the police officer approached them; they responded with
mumbles. Id. at 6. Accordingly, the Court found that the officer’s observation of the men’s
“unusual conduct,” id. at 30, constituted his reasonable suspicion that the men were armed and
thus justified the confrontation. Id. at 28. As each man passed the store again and the men
huddled at the corner, the facts from which the officer could reasonably infer a crime piled on
one top of one another to achieve the threshold level of reasonable suspicion that justified the
officers’ intervention.
[18]
Officers observe facts and make inferences similarly in the home environment. In Gould,
police officers conducted a protective sweep of a mobile on just a few key facts: a report that the
defendant planned to go on a killing spree, their reasonable inference from this report that the
defendant had “ready access to lethal weapons,” and their observation that he was not sleeping in
his bedroom, as a home occupant had reported. See Gould, 364 F.3d at 589, 592. The court held
that these three facts overlapped to indicate “the danger and imminence of an ambush” of police
officers and thus justified their protective sweep of the defendant’s trailer. See id. at 589, 590.
In Martins, the First Circuit found reasonable suspicion where the police faced probative facts
intersecting in location and time: an apartment building’s location in a high-crime area, a recent
shooting near the apartment building, a victim seeking refuge inside, their knowledge and
experience regarding gang behavior, the “evasive” action of an adult behind an apartment door,
and his suspected “attempt to misinform.” See Martins, 413 F.3d at 151.
Courts have found grounds for reasonable suspicion on as few as two key facts. See, e.g.,
Wardlow, 528 U.S. at 124. The Court has held that an officers’ presence in a high crime area
and an individual’s unprovoked flight in that area constituted reasonable suspicion in. Id. The
First Circuit determined that a 911 call reporting the presence of an armed man coupled with a
belligerent man’s presence in the apartment constituted reasonable suspicion of danger to
officers on the scene. Romain, 393 F.3d at 72.
Viewed against the backdrop of such cases, the “specific and articulable facts” available
to Officer Sanford exceed the threshold of reasonable suspicion and thus justify his protective
sweep of Hinkley’s apartment. Myriad probative facts mounted, one atop the other, to establish
a small zone of extreme danger for Sanford. The articulable facts are as follows: a string of
robberies was terrorizing the neighborhood of North Green; North Green is a high-crime area;
[19]
one recent robbery occurred four houses down the street from Hinkley, and the robber had a
handgun; a robbery had just occurred in the neighborhood that evening; the description of the
robber matched the description of a man who had recently robbed and then murdered a
neighborhood resident; the murdered resident resided and was killed across the street from
Hinkley’s home; eye-witnesses reported that the robber had fled in the direction of Hinkley’s
home. R. at 4-6. Just as the police officer in Gould had inferred from reports of an individual’s
killing-spree plan that the individual had access to lethal weapons, Gould, 364 F.3d at 592,
Officer Sanford and his colleagues could reasonably infer that since the robber matched the
description of the murderer, he too had access to lethal weapons and may be presently armed.
Furthermore, the officers could infer that having killed someone across the street from Hinkley,
the robber was familiar with Hinkley’s specific corner of the neighborhood and thus was more
likely to see refuge there. These specific, articulable facts and rational inferences intersect in the
immediate area around Hinkley’s and his murdered neighbor’s homes, and establish reasonable
suspicion by any officer in homes within this tightly circumscribed zone that a murderer may be
present and dangerous.
Contrary to petitioner’s claim, these facts would not constitute reasonable suspicion at
every home in the neighborhood and expose them all to protective sweeps. The majority of
homes would not fall victim to the robber’s familiarity with the immediate area around the
murder victim’s home, would have no physical proximity to either the recent murder or the
robbery involving the gun, and would not fall within the specific direction in which the robber
had reportedly fled. Only had Officer Sanford consensually entered a home in this majority
might the petitioner fairly contend that he lacked reasonable suspicion. Considering the sum
total of the facts and rational inferences listed above, however, and their convergence in the area
[20]
immediately surrounding Hinkley’s home, Officer Sanford clearly met the requisite threshold of
reasonable suspicion.
b. Officer Sanford appropriately limited the scope of his search to pursue his reasonable
suspicions of danger.
To ensure that protective sweeps constitute only a narrow exception to the Fourth
Amendment’s reasonableness requirement, the Court requires that the search remain limited in
both spatial and temporal scope. See Buie, 494 U.S. at 325. The sweep, described as a “cursory
visual inspection,” id. at 325, may last just long enough to “dispel the reasonable suspicion of
danger” and extends only as far as “places in which a person might be hiding.” Id. at 335-336.
Such limitations preserve a delicate balance between personal privacy and security interests and
the government’s charge to ensure public safety.
By requiring that the protective sweep remain contingent on reasonable suspicion, the
Court protects personal privacy and security. Just as a Terry frisk constitutes only a brief patting
down to determine whether an individual is armed, Terry, 392 U.S. 1, a protective sweep may
last just long enough for officers to visually frisk a home and dispel their suspicion of danger.
Buie, 494 U.S. 325; Gould, 364 F.3d at 587 (stating that a protective sweep may last no longer
than police are justified in remaining on the premises, citing an arrest as one such justification).
Such a temporal limit forces officers to stop searching when they extinguish their reasonable
suspicion, thus protecting individuals from the lengthy, invasive search of an overzealous cop
dedicated to exerting his own authority rather than preventing crime. In Gould, officers
conducted a protective sweep lasting a “few seconds,” until they heard someone yell that the
allegedly armed individual posing a safety risk had just departed the mobile home. Gould, 364
F.3d at 589, 593. This new information dispelled their reasonable suspicion, since the individual
[21]
could no longer pose harm to them inside the mobile home; accordingly, they terminated their
protective sweep immediately and pursued the individual outside. Id. at 593. Since they could
not lawfully continue their protective sweep without reasonable suspicion of harm, they were
prohibited from effecting a lengthier, more casual search that might expose an occupant’s more
private belongings and invade one’s prized sense of person space and security.
The spatial limit on the protective sweep operates similarly and protects individuals from
the thorough, top-to-bottom search that might invade one’s sense of privacy. The officers in
Gould abided by the spatial limitation: they never opened drawers or tampered with the
defendant’s personal belongings. Gould, 364 F.3d at 580. Their search of Gould’s bedroom
consisted of a superficial visual sweep of two areas from which an individual might launch an
attack: underneath his bed and behind his closet doors. Id. at 580. The guns officers ultimately
seized were in plain view upon opening the closet doors; the officers did not even touch any
personal items in the closet. Id. at 580 (noting that the guns were not seized until after Gould
was arrested and had consented to a search of his mobile home).
In Miller, the Second Circuit articulated how an officer conducting a protective sweep
might have violated the tight spatial scope upon which his reasonable suspicion justified a
protective sweep. Miller, 430 F.3d at 101. In Miller, a police officer followed the defendant to
his bedroom upon reasonable suspicion that the defendant might obtain a weapon and harm him.
Id. at 101. This protective sweep extended only to an area in which the defendant, while alone,
might obtain a weapon. The court noted that the officer “did not engage in a sweep of areas
inaccessible to [the defendant] for the purpose of ferreting out secreted firearms,” id. at 101, but
rather confined his sweep to accessible areas from which the defendant could spring an attack on
the officer. See id. at 101.
[22]
Officer Sanford abided by these temporal and spatial limitations during his protective
sweep of Hinkley’s home. He executed a purely “cursory visual inspection,” Buie 494 U.S. at
325, as evidenced by the fact that he never touched, moved, opened, or disturbed any of
Hinkley’s furniture or possessions. He merely opened one door, to inspect the kitchen for the
murderer in hot pursuit, and like the police in Gould, found a weapon in plain view. R. at 6.
Hinkley suffered no invasion of personal privacy, as Sanford’s search extended only from
Hinkley’s foyer to the kitchen entrance. R. at 6. Unlike Gould, who experienced a search that
necessarily extended to the most private area of the home, the bedroom, Gould, 364 F.3d at 580,
Sanford’s search led to the kitchen, arguably the least private room of one’s home. R. at 6.
Furthermore, Sanford’s sweep most likely lasted only seconds; after all, once he opened the door
and saw the gun on the table, the sweep ended. R. at 6.
Far from using abusing his authority and invading Hinkley’s personal space, Hinkley
followed the letter of the law and made every effort to restrict his search of the home. Sanford
began a conversation with Hinkley to obtain more information, R. at 5-6, information that could
have dispelled his reasonable suspicion of danger. Hinkley provided none. R. at 6. Although
Hinkley claimed that he had not heard or seen anything unusual that evening, such testimony
could not reasonably dispel an officer’s believe that an experience robber and murderer had not
snuck his way into that specific home, unbeknownst to even the most observant of occupants.
His reasonable suspicion persisting, Officer Sanford then executed the protective sweep. R. at 6.
Officer Sanford knew that the kitchens of the neighborhood homes provided another entrance, R.
at 5, and thus might provide an entry point for the fleeing murderer. Appropriately, he began his
sweep there.
[23]
Petitioner suggests that had Sanford not found Hinkley’s gun and thus been presented
with a paramount safety issue, he would have proceeded to sweep the entirety of Sanford’s
home. Petitioner, however, fails to recognize the temporal limitation on the protective sweep.
To his great credit, Officer Sanford began the search in the place most likely both to contain the
murderer and dispel his reasonable suspicion. An easy entry point, the kitchen provided refuge
for the robber, and had he been found there, the protective sweep must have ended. If there were
no individual present in the kitchen, however, Sanford’s observations of the kitchen still might
have extinguished his reasonable suspicion. If, for example, the kitchen door had been locked,
that may have dispelled Sanford’s belief that someone had broken in. By extending his sweep to
the kitchen first, Officer Sanford both targeted the area most likely to harbor a fugitive and
allowed for extinction of his reasonable suspicion, thus protecting his safety at the least possible
cost to Hinkley’s privacy.
For the reasons described above, this court should find that an officer may conduct a
warrantless protective sweep of an individual’s home without executing an arrest.
II. The Thirteenth Circuit erred in holding that Hinkley was not subject to sentencing
under the Armed Career Criminal Act of 1984, because possession of a sawed-off
shotgun qualifies as a “violent felony” under the Act.
Unlawful possession of a firearm by a convicted felon is a federal crime. Sykes v. United
States, 131 S. Ct. 2267, 2270 (2011) (citing 18 U.S.C. § 922(g)(1)). The normal sentence for this
offense carries a maximum of ten years. 18 U.S.C. § 924 (2006). Under the Armed Career
Criminal Act of 1984 (ACCA), however, the sentence increases to a mandatory minimum of
fifteen years in prison for any person with at least three qualifying predicate felony convictions.
18 U.S.C. § 924 (2006). The ACCA defines two types of predicate felonies that count towards
imposing the mandatory minimum sentence: serious drug offenses and violent felonies. 18
[24]
U.S.C. § 924(e)(2). Only violent felonies are at issue in this case. To qualify as a violent felony,
an offense must be punishable by a prison sentence exceeding one year. 18 U.S.C. § 924(e)(2).
Violent felonies, as defined by statute and interpreted by this Court, have been grouped
into three categories: offenses involving physical force, enumerated offenses, and residual clause
offenses. See James v. United States, 550 U.S. 192 (2007). First, the statute includes in the
definition of violent felony any offense that “has as an element the use, attempted use, or
threatened use of physical force against the person of another . . . .” 18 U.S.C. § 924(e)(2)(B)(i).
Physical force offenses, such as battery and manslaughter, are not at issue in this case. Second,
the statute specifically lists “burglary, arson, or extortion, [or offenses that] involve[] use of
explosives . . . .” 18 U.S.C. § 924(e)(2)(B)(ii). These offenses have been labeled by this Court
as the “enumerated offenses.” Sykes v. United States, 131 S. Ct. 2267, 2273 (2011); Begay v.
United States, 553 U.S. 137, 148 (2008). They are not directly at issue in this case. Third, the
statute includes as a violent felony any offense that “otherwise involves conduct that presents a
serious potential risk of physical injury to another . . . .” 18 U.S.C. § 924(e)(2)(B)(ii). The Court
has wrestled with the residual clause four times since 2007 to determine how courts should
decide whether an offense qualifies as an ACCA violent felony. See James v. United States, 550
U.S. 192 (2007); Begay v. United States, 553 U.S. 137 (2008); Chambers v. United States, 555
U.S. 122 (2009); Sykes v. United States, 131 S. Ct. 2267 (2011).
There are three basic approaches that the Court theoretically could use to analyze an
offense under the residual clause: as-committed, hard-categorical, and soft-categorical. During
sentencing for the average criminal conviction, federal courts consider the offense as committed
under the United States Sentencing Guidelines (USSG). For example, assault against a federal
officer with a deadly weapon is a crime punishable by imprisonment for up to twenty years. 18
[25]
U.S.C. § 111 (2006). Injury to the federal officer is not an element of the crime. See, e.g.,
United States v. Acosta-Sierra, 690 F.3d 1111, 1117 (9th Cir. 2012). During sentencing,
however, the district court must consider the offense as committed under the USSG, which
factors in the severity of any injury to the victim. USSG §2A2.2(b)(3) (increasing offense levels
based on the degree of bodily injury). Considering an offense as committed is factually intense
and rarely appropriate when reviewing prior convictions. Taylor v. United States, 495 U.S. 575,
601 (1990). This Court has consistently reaffirmed Taylor and declined to analyze prior offenses
as committed under the ACCA. Taylor v. United States, 495 U.S. 575, 602 (1990); see, e.g.,
Begay v. United States, 553 U.S. 137, 141 (2008), Sykes v. United States, 131 S. Ct. 2267, 2272
(2011). Instead, this Court considers an offense generically, based on its statutory definition; this
is the categorical approach. Taylor v. United States, 495 U.S. at 602.
Through the categorical approach, courts have implicitly recognized two ways of
analyzing possession crimes under the ACCA. Although the issue has yet to be labeled as such
by the Court in an ACCA case, statutes could be analyzed based on the furthest boundaries of
their legal application or they could be analyzed based on how they are most commonly applied.
We label these approaches hard-categorical and soft-categorical, respectively.
The hard-categorical approach reviews an offense based on the furthest factual
boundaries to which it has been legally applied. Examples of the hard-categorical approach are
fairly rare, but the Sixth Circuit Court of Appeals appeared to employ this approach when it
considered possession of a sawed-off shotgun under the ACCA’s residual clause. United States
v. Amos, 501 F.3d 524, 528-29 (6th Cir. 2007). The Sixth Circuit stated that an offense must
qualify based on all manifestations of factual prosecution: “Although many instances of sawed-
off shotgun possession create a greater risk of harm to others, particularly if the weapon is fired
[26]
or brandished, the same cannot be said for all instances of possession, such as where it is stored
unloaded in an attic or the trunk of a car.” Id. (emphasis added). The circuit panel thus relied
upon the hard-categorical approach.
The Court has adopted the soft-categorical approach, by which an offense is analyzed
based on how it is most commonly applied, and rejected the hard-categorical approach. James v.
United States, 550 U.S. 192, 208 (2007) (specifying that the Court considers an offense “in the
ordinary case”). In James, the Court included attempted burglary under the ACCA’s residual
clause because it presented a serious risk of physical injury to others. James, 550 U.S. at 195. In
that case the petitioner unsuccessfully contended that showing the offense was risky in most
cases would be insufficient and argued that the government needed to show that “all cases
present such a risk.” James, 550 U.S. at 207. The Court explicitly rejected the petitioner’s call
for a stricter standard. James, 550 U.S. at 207 (“[Petitioner’s] approach is supported by neither
the statute's text nor this Court's holding in Taylor.”) This Court has since reaffirmed its decision
to review offenses based on how they are committed in “the ordinary case.” James, 550 U.S. at
208; see, e.g., Begay v. United States, 553 U.S. 137, 141 (2008).
1. Possession of a sawed-off shotgun qualifies under the ACCA’s residual clause
because it presents a substantial risk of physical injury under the following three gauges:
inherent riskiness, the United States Sentencing Guidelines, and Congressional treatment.
The degree of risk proved dispositive in three of the Court’s four major residual clause
ACCA opinions. James, 550 U.S. 192 (holding that attempted burglary presents a similar risk of
harm as completed burglary); Chambers v. United States, 555 U.S. 122 (2009) (holding that
failure to report to prison does not present a substantial risk of harm); Sykes v. United States, 131
S. Ct. 2267 (2011) (holding that intentional flight by vehicle presents a substantial risk of harm).
Only in one case, Begay, did the Court look past the degree of risk posed by the offense as the
[27]
controlling factor. Begay, 553 U.S. 137 (holding that driving under the influence does not
qualify as an ACCA violent felony because DUI is not “purposeful or deliberate”). To be clear,
the Begay Court proceeded from the assumption that the risk requirement was met. Begay, 553
U.S. at 141. Begay is discussed further below.
The Court weighs heavily the inherent riskiness of an offense to determine its inclusion
under the ACCA’s residual clause. See, e.g., Chambers v. United States, 555 U.S. 122, 128
(2009). Courts rely on commonsense judgment to distinguish crimes in terms of risk. Sykes, 131
S. Ct. 2267 (describing the Court’s analysis as a “commonsense” approach). Attempted burglary
includes an inherent risk of physical injury because it necessarily includes a confrontation with
another person. James, 550 U.S. at 204. Failure to report to prison is not inherently risky
because it is essentially a form of inaction. Chambers, 555 U.S. at 128 (“While an offender who
fails to report must of course be doing something at the relevant time, there is no reason to
believe that the something poses a serious potential risk of physical injury.”) Fleeing from law
enforcement by vehicle carries inherent risks of physical harm. Sykes, 131 S. Ct. at 2274
(“Flight from a law enforcement officer invites, even demands, pursuit. As that pursuit
continues, the risk of an accident accumulates.”). If the Court finds that possession of a sawed-
off shotgun presents substantial inherent risks of physical harm, the Court should find that it
qualifies an ACCA predicate violent felony.
a. Sawed-off shotguns and possession thereof are inherently risky.
Many courts have declared that sawed-off shotguns are “inherently dangerous” and only
useful for criminal and violent purposes. Vincent, 575 F.3d at 825 (8th Cir. 2009) (quotation
marks omitted) (citation omitted). At least seven of the eleven U.S. Circuit Courts of Appeals
that have confronted a sawed-off shotgun case endorse this view, including the First, Fourth,
[28]
Fifth, Seventh, Eighth, Ninth, and Tenth Circuits. United States v. Bishop, 453 F.3d 30, 32 (1st
Cir. 2006); United States v. Lillard, 685 F.3d 773, 776 (8th Cir. 2012); United States v.
Hood, 628 F.3d 669 (4th Cir. 2010) (interpreting mirror language in USSG); United States v.
Serna, 309 F.3d 859, 863-64 (5th Cir. 2002) (interpreting mirror language in USSG); United
States v. Dwyer, 245 F.3d 1168, 1172 (10th Cir. 2001) (interpreting mirror language in
USSG); United States v. Brazeau, 237 F.3d 842, 844-45 (7th Cir. 2001) (interpreting mirror
language in USSG); United States v. Hayes, 7 F.3d 144, 145 (9th Cir.1993) (interpreting mirror
language in USSG).
The physical design of sawed-off shotguns is one factor that has led courts to deem them
inherently dangerous; the shortened barrel makes the weapon easier to conceal and transport than
a regular shotgun. Amos, 501 F.3d at 531 (McKeague, dissenting). In comparison to a regular
shotgun, a sawed-off shotgun is less accurate, more maneuverable, and easier to conceal. Id.
The short barrel allows the weapon to be concealed under a large shirt or coat. Id. The wide
spray pattern created by a sawed-off shotgun also makes the weapons especially dangerous.
United States v. Duerson, 25 F.3d 376, 384 (6th Cir. 1994). The weapon’s “indiscriminate
accuracy” and destructive power make sawed-off shotguns useful only for inflicting violence
upon another person, rather than for sport. Amos, 501 F.3d at 531 (J. McKeague, dissenting).
The lack of lawful uses for sawed-off shotguns has also led courts to label them
inherently dangerous. United States v. Lillard, 685 F.3d 773, 777 (8th Cir. 2012). Sawed-off
shotguns are not meant for use in sport or for personal protection; myriad courts have recognized
that these weapons’ primary purpose is criminal. Amos, 501 F.3d at 532-33 (McKeague,
dissenting) (“Just as one could possess a sawed-off shotgun as a family heirloom or use it to fend
off groundhogs, one could use a grenade launcher to shoo away a pesky woodpecker, possess a
[29]
silencer as a paperweight, or use a blackjack to crack open walnuts. Such secondary uses do not
detract from the fact that these devices are primarily designed for dangerous, criminal or war-like
purposes.”).
Additionally, sawed-off shotguns have been characterized as “weapons of war” that
should be used exclusively by the military and law enforcement. Serna, 309 at 863 (5th Cir.
2002), see also United States v. Jennings, 195 F.3d 795, 799 n.4 (5th Cir. 1999) (noting that
sawed-off shotguns are mainly weapons of war because they do not have an appropriate sporting
or personal-protection use). Unlawfully possessing one of these “‘gangster-type’ ‘weapons of
war’ creates a serious potential risk of physical injury.” Amos, 501 F.3d at 531 (McKeague,
dissenting). Both Congress and the courts have consistently listed sawed-off shotguns alongside
short rifles, machine guns, and silencers. In the Gun Control Act of 1968, the enumerated
weapons include short shotguns, short rifles, machine guns, mufflers, and silencers. 26 U.S.C. §
5845 (2006). These devices have been grouped together largely because each is strictly used for
criminal purposes. United States v. Fortes, 141 F.3d 1, 7 (1st Cir. 1998), see also United States
v. Huffhines, 967 F.2d 314, 320-321 (9th Cir.1992).
Even mere possession of a sawed-off shotgun, prior to use, presents a serious risk of
physical injury to others. United States v. Lillard, 685 F.3d 773, 777 (8th Cir. 2012) cert.
denied, 2013 WL 598580 (U.S. Feb. 19, 2013). The offensiveness of any weapons possession
crime depends upon the nature of the weapon and the context of possession. Possession of a
decorative antique gun presents no serious risk; in contrast, possession of a shank in prison
presents obvious risks of confrontation and serious harm. United States v. Marquez, 626 F.3d
214 (5th Cir. 2010); United States v. Boyce, 633 F.3d 708 (8th Cir. 2011); United States v. Perez-
Jiminez, 654 F.3d 1136 (10th Cir. 2011); United States v. Mobley, 687 F.3d 625 (4th Cir. 2012)
[30]
cert. denied, 133 S. Ct. 888 (U.S. 2013). But see United States v. Polk, 577 F.3d 515 (3d Cir.
2009). These examples, antiques and prison shanks, are opposite poles that create a spectrum of
weapons possession crimes against which sawed-off shotguns can be considered. Contrasting
the antique gun and the prison shank suggests that the two specific offending factors in a
riskiness calculation are the risk of confrontation and the risk of serious bodily harm.
Tested against this spectrum, possession of a sawed-off shotgun presents riskiness
comparable to that of the prison shank, due to the similar risks of confrontation and serious
bodily harm. The risk of confrontation depends both upon the increased likelihood of
confrontation and the increased likelihood that any eventual use of that weapon will be to harm a
victim. Possession of a shank in prison creates the likelihood of a confrontation. United States
v. Zuniga, 553 F.3d 1330, 1335 (10th Cir. 2009). Such possession demonstrates a preparedness
for violence. Id. The same holds true for possession of a sawed-off shotgun; “it enables
violence or the threat of violence.” Vincent, 575 F.3d at 825-26 (8th Cir. 2009); see Serna, 309
F.3d at 863 (stating that possession of a sawed-off shotgun creates a “virtual inevitability” of
violence). Additionally, possession of a shank in prison and possession of a sawed-off shotgun
are similar because any use of either weapon is likely to be against a victim. United States v.
Perez-Jiminez, 654 F.3d 1136, 1143 (10th Cir. 2011) (stating that there is no legitimate purpose
for possession of a deadly weapon in prison); United States v. Hayes, 7 F.3d 144, 145 (9th
Cir.1993) (stating that sawed-off shotguns have only violent and criminal purposes). Neither
weapon has any common uses aside from harming and threatening others with violence. Finally,
these possession crimes are similar because both weapons presents a serious risk of bodily harm.
United States v. Brazeau, 237 F.3d 842, 845 (7th Cir. 2001) (possession of a sawed-off shotgun
[31]
“presents a serious potential risk of physical injury”); Zuniga, 553 F.3d at 1334 (possession of a
deadly weapon in prison “presents a serious potential risk of physical injury”).
b. Possession of a sawed-off shotgun is recognized as substantially risky by the United
States Sentencing Guidelines.
The United States Sentencing Guidelines (USSG) has a career offender provision that
mirrors the language of the ACCA. U.S.S.G. § 4B1.2; James v. United States, 550 U.S. 192, 206
(2007). It includes a residual clause that captures any offense (with a prison term greater than
one year) that “otherwise involves conduct that presents a serious potential risk of physical injury
to another.” U.S.S.G. § 4B1.2. The USSG includes application notes that provide further
guidance about what crimes do and do not qualify under the residual clause. These application
notes are considered “authoritative” unless shown to violate the Constitution or a federal statute
or to be a plainly erroneous reading of the guideline. Stinson v. United States, 508 U.S. 36, 38
(1993). Application Note One under U.S.S.G. § 4B1.2 specifically identifies possession of a
sawed-off shotgun as a crime of violence. U.S.S.G. § 4B1.2, comment, n. 1. The note excludes
from the definition “unlawful possession of a firearm by a felon,” but with one exception. Id.
The note specifically includes this offense for possession of a sawed-off shotgun and any firearm
described under 26 U.S.C. § 5845(a), the National Firearms Act of 1934. United States
Sentencing Guidelines § 4B1.2, comment, n. 1; see also National Firearms Act of 1934, Pub. L.
No. 73-474, 48 Stat. 1236 (codified as amended at 26 U.S.C. §§ 5801-5872 (2006)). This Court
has directly cited this note “as further evidence” to include an offense under the ACCA’s
residual clause. James, 550 U.S. at 207 (citing U.S.S.G. § 4B1.2, comment, n. 1) (describing the
Sentencing Commission’s conclusion to include attempted burglary under the residual clause as
[32]
persuasive, but not binding). This supports the conclusion that, under the same language in the
ACCA, possession of a sawed-off shotgun qualifies as a predicate violent felony.
c. Congress has distinguished sawed-off shotguns from other weapons because of their
inherent riskiness.
In Begay, this Court made clear that the ACCA’s mandatory minimum was meant to
target people “who might deliberately point the gun and pull the trigger.” Begay 553 U.S. at
146. But the ACCA is not the only statute where Congress has identified the gun crimes it finds
particularly offensive. In addition to the Armed Career Criminal Act of 1984, Congress has
passed several laws that either single out certain gun crimes by providing for elevated sentencing
or single out certain weapons for increased regulation or total prohibition. See, e.g., National
Firearms Act of 1934, Pub. L. No. 73-474, 48 Stat. 1236 (codified as amended at 26 U.S.C. §§
5801-5872 (2006)). These closely related statutes are strong evidence of the gun crimes that
Congress considers particularly offensive and present a substantial risk of physical harm. This
Court should find that these offenses qualify as ACCA violent felonies. “In enacting gun control
legislation, Congress expressed the view that a short-barreled firearm, or sawed-off shotgun,
when unlawfully possessed, is primarily used for violent purposes.” Serna, 309 F.3d at 863.
In the National Firearms Act of 1934 (NFA), Congress recognized that sawed-off
shotguns are possessed and used by violent criminals, not law-abiding citizens. H. Rep. No. 82-
1714, at 1 (1934). Representative Robert L. Doughton of North Carolina stated that the NFA’s
primary purpose was to control the traffic in “machine guns and sawed-off guns, the type of
firearms commonly used by the gangster element.” Id.; see also H. Rep. No. 73-1780, at 1
(1934) (stating that no one other than a law officer should have a machine gun or a sawed-off
shotgun). Congress believed such control was necessary to halt the increasing number of violent
[33]
crimes involving the use of sawed-off shotguns and other highly dangerous
weapons. Id. Sawed-off shotguns were grouped alongside short rifles, machine guns, and
silencers in the NFA. National Firearms Act of 1934, Pub. L. No. 73-474, 48 Stat. 1236
(codified as amended at 26 U.S.C. §§ 5801-5872 (2006)). Congress singled out sawed-off
shotguns in this way because they create a serious risk of physical injury. United States v.
Upton, 512 F.3d 394, 404 (7th Cir. 2008). As Senator Barbara Boxer of California has
remarked, the NFA targets serious criminals, including “terrorists and violent criminals who
make bombs, who make sawed-off shotguns, who make silencers.” 104 Cong. Rec. 14, 920
(June 6, 1995).
Congress has amended and strengthened the NFA many times, thus demonstrating the
strength of its conviction that the crimes included are serious. The Gun Control Act of 1968
(GCA) set forth additional gun restrictions in order to limit availability of and access to weapons
like sawed-off shotguns. S. Rep. No. 90-1501 (1968). Its passage “continued to emphasize the
‘senseless slaughter’ which dangerous firearms cause.” Id. at 1081; see also United States v.
Jennings, 195 F.3d 795, 799 n.4 (5th Cir. 1999) (noting that Congress expanded the scope of the
NFA because of its finding that destructive devices, machine guns, short-barreled shotguns, and
short-barreled rifles are primarily weapons of war). Congress deliberately targeted short
shotguns in the GCA by placing strict controls over the manufacture and transfer of all “sawed-
off shotguns, machine guns, silencers, grenades, and other ‘gangster-type weapons.’” H.R. Rep.
No. 90-1956, at 34 (1968) (Conf. Rep.).
[34]
2. The exception for crimes akin to strict liability does not apply in this case because
possession of a sawed-off shotgun is premised on purposeful or knowing possession.
As noted above, the Begay Court assumed that driving under the influence (DUI)
involves conduct that “presents a serious potential risk of physical injury to another,” Begay, 553
U.S. at 141, but concluded that DUI does not fall under the ACCA’s residual clause because of
its strict liability nature. Id. at 146. This exception for crimes with a mens rea of strict liability,
negligence, or recklessness was reiterated in Sykes. 131 S. Ct. at 2276. The Sykes Court declined
to apply the Begay exception when analyzing felony flight by vehicle because the statute creating
the offense required the government to prove that the defendant acted with knowledge or
purpose. This distinction is consistent with the Court’s other ACCA residual clause decisions.
James, 550 U.S. 192 (including attempted burglary, an intentional crime); Chambers v. United
States, 555 U.S. 122, 128 (2009) (describing the offense of failure to report to prison as a “form
of inaction” and declining to include it under the ACCA’s residual clause).
A conviction for possession of a sawed-off shotgun requires the government to show that
the defendant acted with purpose or knowledge. Staples v. United States, 511 U.S. 600, 602
(1994). Therefore, it does not fall under the Begay exception for crimes of strict-liability,
negligence, or recklessness. See Sykes, 131 S. Ct. at 2276 ; United States v. Lillard, 685 F.3d
773, 776 (8th Cir. 2012) cert. denied, 2013 WL 598580 (U.S. Feb. 19, 2013) (finding that
possession of a sawed-off shotgun was not a strict-liability crime and did not fall under Begay).
Hinkley was convicted for possession of a sawed-off shotgun pursuant to 26 U.S.C. § 5861
(2006). This Court has specifically rejected any contention that possession under § 5861(d) is a
strict-liability crime. Staples v. United States, 511 U.S. 600, 602 (1994). The Staples Court held
that the government must prove “beyond a reasonable doubt that he knew the weapon he
[35]
possessed had the characteristics that brought it within [§ 5861].” Id.; see United States v.
Serrano, 406 F.3d 1208, 1212 (10th Cir. 2005) (listing the elements and each mens rea
requirement under § 5861(d)). In United States v. Michel, 446 F.3d 1122 (10th Cir. 2006), the
Tenth Circuit, citing Staples, reversed a defendant’s conviction for possession under § 5861(d)
because the government had failed to demonstrate that the defendant knew the shotgun’s barrel
was less than 18 inches long. Michel, 446 F.3d at 1130. Illegal possession of a sawed-off
shotgun under § 5861(d) is not a strict liability crime; therefore, the Begay exception does not
apply.
An argument distinguishing weapons possession crimes under the ACCA’s residual
clause due to their inchoate nature is inconsistent with the Court’s prior rulings. See James, 550
U.S. 192. In James, this Court held that attempted burglary fell within the scope of the residual
clause. Id. This Court declined to apply any different test for that inchoate offense beyond the
risk analysis described above. See id. at 209. The Sykes decision articulated a specific aversion
against injecting new judicial standards into the ACCA’s residual clause with “no precise textual
link.” Sykes, 131 S. Ct. at 2275 (criticizing any “overread[ing]” of the “purposeful, violent, and
aggressive” language that originated in Begay.) The risk inquiry that was dispositive in James,
Chambers, and Sykes (and assumed in Begay) stems directly from the original language of the
ACCA statute. 18 U.S.C. § 924(e)(2)(B) (“presents a serious potential risk of physical injury”)
(emphasis added). Addressing the offense in the present case, the Begay exception should not be
expanded; rather, risk inquiry should be dispositive.
[36]
a. Even if the court expands the strict liability exception, possession is still included
under the ACCA, because it is a purposeful, violent, and aggressive crime.
If the Court elects to expand the Begay exception, possession of a sawed-off shotgun still
qualifies as a violent felony under the ACCA’s residual clause because it is “purposeful, violent,
and aggressive.” Begay , 553 U.S. at 145. Without more explicit guidance from the Court, the
Circuit Courts of Appeals have subdivided the Begay language into two sub-inquiries: whether
the offense is purposeful and whether the offense is violent and aggressive. See, e.g., United
States v. Dismuke, 593 F.3d 582, 592 (7th Cir. 2010); United States v. West, 550 F.3d 952, 969
(10th Cir. 2008) overruled on other grounds as recognized in United States v. McConnell, 605
F.3d 822, 829 (10th Cir. 2010). These sub-inquiries are considered based upon the
“commonsense,” soft-categorical approach outlined above. See Sykes v. United States, 131 S.
Ct. 2267, 2274 (2011) (describing the Court’s analysis as a “commonsense” approach); James,
550 U.S. at 208.
Possession of a sawed-off shotgun is purposeful, violent, and aggressive. One does not
negligently obtain a sawed-off shotgun; one can only do so purposefully. United States v.
Mobley, 687 F.3d 625, 629 (4th Cir. 2012) cert. denied, 133 S. Ct. 888 (U.S. 2013) (noting that
possession of a shank in prison is purposeful, because “we may assume one who possesses a
shank intends that possession”). Additionally, the weapon’s shortened barrel is readily apparent,
thus reinforcing the notion that it could not have been received and held under the mistaken
impression that it was a full-size shotgun. Furthermore, possession of a sawed-off shotgun
shows a clear potential for violence. Mobley, 687 F.3d at 631, (holding that possession of a
shank in prison qualifies as a “violent felony”). The Fourth Circuit, in Mobley, found that the
potential for violence created by a sawed-off shotgun or a prison shank satisfied the standard
[37]
posed by Begay. Id. As noted above, the Begay language of “violent and aggressive” has not
been divided to create separate inquiries.
For the reasons described above, this court should find that possession of a sawed-off
shotgun qualifies as a violent felony under the ACCA.
[A-1]
APPENDIX
Statutes:
18 U.S.C. § 111 (2006).........................................................................................................2
18 U.S.C. § 922(g)(1)) .........................................................................................................3
18 U.S.C. § 924(c)(1)(B) ..................................................................................................5, 6
18 U.S.C. § 924(c)(1)(D)(5)(A) ...........................................................................................6
18 U.S.C. § 924(e)(2) .......................................................................................................8, 9
26 U.S.C. § 5845 (2006) ....................................................................................................11
26 U.S.C. § 5861 (2006).....................................................................................................14
United States Sentencing Guidelines:
U.S.S.G. § 2A2.2(b)(3) ......................................................................................................15
U.S.S.G. § 4B1.2..................................................................................................................17
[A-2]
Effective: January 7, 2008
18 U.S.C. § 111
§ 111. Assaulting, resisting, or impeding certain officers or employees
(a) In general.--Whoever--
(1) forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any person
designated in section 1114 of this title while engaged in or on account of the performance
of official duties; or
(2) forcibly assaults or intimidates any person who formerly served as a person
designated in section 1114 on account of the performance of official duties during such
person's term of service,
shall, where the acts in violation of this section constitute only simple assault, be fined
under this title or imprisoned not more than one year, or both, and where such acts
involve physical contact with the victim of that assault or the intent to commit another
felony, be fined under this title or imprisoned not more than 8 years, or both.
(b) Enhanced penalty.--Whoever, in the commission of any acts described in subsection (a),
uses a deadly or dangerous weapon (including a weapon intended to cause death or danger but
that fails to do so by reason of a defective component) or inflicts bodily injury, shall be fined
under this title or imprisoned not more than 20 years, or both.
Credits
(June 25, 1948, c. 645, 62 Stat. 688; Nov. 18, 1988, Pub.L. 100-690, Title VI, § 6487(a), 102
Stat. 4386; Sept. 13, 1994, Pub.L. 103-322, Title XXXII, § 320101(a), 108 Stat. 2108; Apr. 24,
1996, Pub.L. 104-132, Title VII, § 727(c), 110 Stat. 1302; Nov. 2, 2002,Pub.L. 107-273, Div. C,
Title I, § 11008(b), 116 Stat. 1818; Jan. 7, 2008, Pub.L. 110-177, Title II, § 208(b), 121 Stat.
2538.)
[A-3]
18 U.S.C. § 922
§ 922. Unlawful acts
(g) It shall be unlawful for any person--
(1) who has been convicted in any court of, a crime punishable by imprisonment for a
term exceeding one year;
(2) who is a fugitive from justice;
(3) who is an unlawful user of or addicted to any controlled substance (as defined in
section 102 of the Controlled Substances Act (21 U.S.C. 802));
(4) who has been adjudicated as a mental defective or who has been committed to a
mental institution;
(5) who, being an alien--
(A) is illegally or unlawfully in the United States; or
(B) except as provided in subsection (y)(2), has been admitted to the United States
under a nonimmigrant visa (as that term is defined in section 101(a)(26) of the
Immigration and Nationality Act (8 U.S.C. 1101(a)(26)));
(6) who has been discharged from the Armed Forces under dishonorable conditions;
(7) who, having been a citizen of the United States, has renounced his citizenship;
(8) who is subject to a court order that--
(A) was issued after a hearing of which such person received actual notice, and at
which such person had an opportunity to participate;
(B) restrains such person from harassing, stalking, or threatening an intimate
partner of such person or child of such intimate partner or person, or engaging in
other conduct that would place an intimate partner in reasonable fear of bodily
injury to the partner or child; and
(C)
(i) includes a finding that such person represents a credible threat to the
physical safety of such intimate partner or child; or
(ii) by its terms explicitly prohibits the use, attempted use, or threatened
use of physical force against such intimate partner or child that would
reasonably be expected to cause bodily injury; or
(9) who has been convicted in any court of a misdemeanor crime of domestic violence,
to ship or transport in interstate or foreign commerce, or possess in or affecting
commerce, any firearm or ammunition; or to receive any firearm or ammunition which
has been shipped or transported in interstate or foreign commerce.
[A-4]
Effective: October 6, 2006
18 U.S.C. § 924
§ 924. Penalties
(a)
(1) Except as otherwise provided in this subsection, subsection (b), (c), (f), or (p) of this
section, or in section 929, whoever--
(A) knowingly makes any false statement or representation with respect to the
information required by this chapter to be kept in the records of a person licensed
under this chapter or in applying for any license or exemption or relief from
disability under the provisions of this chapter;
(B) knowingly violates subsection (a)(4), (f), (k), or (q) of section 922;
(C) knowingly imports or brings into the United States or any possession thereof
any firearm or ammunition in violation of section 922(l); or
(D) willfully violates any other provision of this chapter,
shall be fined under this title, imprisoned not more than five years, or both.
(2) Whoever knowingly violates subsection (a)(6), (d), (g), (h), (i), (j), or (o) of section
922 shall be fined as provided in this title, imprisoned not more than 10 years, or both.
(3) Any licensed dealer, licensed importer, licensed manufacturer, or licensed collector
who knowingly--
(A) makes any false statement or representation with respect to the information
required by the provisions of this chapter to be kept in the records of a person
licensed under this chapter, or
(B) violates subsection (m) of section 922,
shall be fined under this title, imprisoned not more than one year, or both.
(4) Whoever violates section 922(q) shall be fined under this title, imprisoned for not
more than 5 years, or both. Notwithstanding any other provision of law, the term of
imprisonment imposed under this paragraph shall not run concurrently with any other
term of imprisonment imposed under any other provision of law. Except for the
authorization of a term of imprisonment of not more than 5 years made in this paragraph,
for the purpose of any other law a violation of section 922(q) shall be deemed to be a
misdemeanor.
(5) Whoever knowingly violates subsection (s) or (t) of section 922 shall be fined under
this title, imprisoned for not more than 1 year, or both.
(6)
(A)
(i) A juvenile who violates section 922(x) shall be fined under this title,
imprisoned not more than 1 year, or both, except that a juvenile described
in clause (ii) shall be sentenced to probation on appropriate conditions and
shall not be incarcerated unless the juvenile fails to comply with a
condition of probation.
[A-5]
(ii) A juvenile is described in this clause if--
(I) the offense of which the juvenile is charged is possession of a
handgun or ammunition in violation of section 922(x)(2); and
(II) the juvenile has not been convicted in any court of an offense
(including an offense under section 922(x) or a similar State law,
but not including any other offense consisting of conduct that if
engaged in by an adult would not constitute an offense) or
adjudicated as a juvenile delinquent for conduct that if engaged in
by an adult would constitute an offense.
(B) A person other than a juvenile who knowingly violates section 922(x)--
(i) shall be fined under this title, imprisoned not more than 1 year, or both;
and
(ii) if the person sold, delivered, or otherwise transferred a handgun or
ammunition to a juvenile knowing or having reasonable cause to know
that the juvenile intended to carry or otherwise possess or discharge or
otherwise use the handgun or ammunition in the commission of a crime of
violence, shall be fined under this title, imprisoned not more than 10 years,
or both.
(7) Whoever knowingly violates section 931 shall be fined under this title, imprisoned not
more than 3 years, or both.
(b) Whoever, with intent to commit therewith an offense punishable by imprisonment for a term
exceeding one year, or with knowledge or reasonable cause to believe that an offense punishable
by imprisonment for a term exceeding one year is to be committed therewith, ships, transports, or
receives a firearm or any ammunition in interstate or foreign commerce shall be fined under this
title, or imprisoned not more than ten years, or both.
(c)
(1)
(A) Except to the extent that a greater minimum sentence is otherwise provided
by this subsection or by any other provision of law, any person who, during and in
relation to any crime of violence or drug trafficking crime (including a crime of
violence or drug trafficking crime that provides for an enhanced punishment if
committed by the use of a deadly or dangerous weapon or device) for which the
person may be prosecuted in a court of the United States, uses or carries a firearm,
or who, in furtherance of any such crime, possesses a firearm, shall, in addition to
the punishment provided for such crime of violence or drug trafficking crime--
(i) be sentenced to a term of imprisonment of not less than 5 years;
(ii) if the firearm is brandished, be sentenced to a term of imprisonment of
not less than 7 years; and
(iii) if the firearm is discharged, be sentenced to a term of imprisonment of
not less than 10 years.
[A-6]
(B) If the firearm possessed by a person convicted of a violation of this
subsection--
(i) is a short-barreled rifle, short-barreled shotgun, or semiautomatic
assault weapon, the person shall be sentenced to a term of imprisonment
of not less than 10 years; or
(ii) is a machinegun or a destructive device, or is equipped with a firearm
silencer or firearm muffler, the person shall be sentenced to a term of
imprisonment of not less than 30 years.
(C) In the case of a second or subsequent conviction under this subsection, the
person shall--
(i) be sentenced to a term of imprisonment of not less than 25 years; and
(ii) if the firearm involved is a machinegun or a destructive device, or is
equipped with a firearm silencer or firearm muffler, be sentenced to
imprisonment for life.
(D) Notwithstanding any other provision of law--
(i) a court shall not place on probation any person convicted of a violation
of this subsection; and
(ii) no term of imprisonment imposed on a person under this subsection
shall run concurrently with any other term of imprisonment imposed on
the person, including any term of imprisonment imposed for the crime of
violence or drug trafficking crime during which the firearm was used,
carried, or possessed.
(2) For purposes of this subsection, the term “drug trafficking crime” means any felony
punishable under the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled
Substances Import and Export Act (21 U.S.C. 951 et seq.), or chapter 705 of title 46.
(3) For purposes of this subsection the term “crime of violence” means an offense that is
a felony and--
(A) has as an element the use, attempted use, or threatened use of physical force
against the person or property of another, or
(B) that by its nature, involves a substantial risk that physical force against the
person or property of another may be used in the course of committing the
offense.
(4) For purposes of this subsection, the term “brandish” means, with respect to a firearm,
to display all or part of the firearm, or otherwise make the presence of the firearm known
to another person, in order to intimidate that person, regardless of whether the firearm is
directly visible to that person.
(5) Except to the extent that a greater minimum sentence is otherwise provided under this
subsection, or by any other provision of law, any person who, during and in relation to
any crime of violence or drug trafficking crime (including a crime of violence or drug
trafficking crime that provides for an enhanced punishment if committed by the use of a
deadly or dangerous weapon or device) for which the person may be prosecuted in a
[A-7]
court of the United States, uses or carries armor piercing ammunition, or who, in
furtherance of any such crime, possesses armor piercing ammunition, shall, in addition to
the punishment provided for such crime of violence or drug trafficking crime or
conviction under this section--
(A) be sentenced to a term of imprisonment of not less than 15 years; and
(B) if death results from the use of such ammunition--
(i) if the killing is murder (as defined in section 1111), be punished by
death or sentenced to a term of imprisonment for any term of years or for
life; and
(ii) if the killing is manslaughter (as defined in section 1112), be punished
as provided in section 1112.
(d)
(1) Any firearm or ammunition involved in or used in any knowing violation
of subsection (a)(4), (a)(6), (f), (g), (h), (i), (j), or (k) of section 922, or knowing
importation or bringing into the United States or any possession thereof any firearm or
ammunition in violation of section 922(l), or knowing violation of section 924, or willful
violation of any other provision of this chapter or any rule or regulation promulgated
thereunder, or any violation of any other criminal law of the United States, or any firearm
or ammunition intended to be used in any offense referred to in paragraph (3) of this
subsection, where such intent is demonstrated by clear and convincing evidence, shall be
subject to seizure and forfeiture, and all provisions of the Internal Revenue Code of 1986
relating to the seizure, forfeiture, and disposition of firearms, as defined in section
5845(a) of that Code, shall, so far as applicable, extend to seizures and forfeitures under
the provisions of this chapter: Provided, That upon acquittal of the owner or possessor, or
dismissal of the charges against him other than upon motion of the Government prior to
trial, or lapse of or court termination of the restraining order to which he is subject, the
seized or relinquished firearms or ammunition shall be returned forthwith to the owner or
possessor or to a person delegated by the owner or possessor unless the return of the
firearms or ammunition would place the owner or possessor or his delegate in violation of
law. Any action or proceeding for the forfeiture of firearms or ammunition shall be
commenced within one hundred and twenty days of such seizure.
(2)
(A) In any action or proceeding for the return of firearms or ammunition seized
under the provisions of this chapter, the court shall allow the prevailing party,
other than the United States, a reasonable attorney's fee, and the United States
shall be liable therefor.
(B) In any other action or proceeding under the provisions of this chapter, the
court, when it finds that such action was without foundation, or was initiated
vexatiously, frivolously, or in bad faith, shall allow the prevailing party, other
than the United States, a reasonable attorney's fee, and the United States shall be
liable therefor.
[A-8]
(C) Only those firearms or quantities of ammunition particularly named and
individually identified as involved in or used in any violation of the provisions of
this chapter or any rule or regulation issued thereunder, or any other criminal law
of the United States or as intended to be used in any offense referred to in
paragraph (3) of this subsection, where such intent is demonstrated by clear and
convincing evidence, shall be subject to seizure, forfeiture, and disposition.
(D) The United States shall be liable for attorneys' fees under this paragraph only
to the extent provided in advance by appropriation Acts.
(3) The offenses referred to in paragraphs (1) and (2)(C) of this subsection are--
(A) any crime of violence, as that term is defined in section 924(c)(3) of this title;
(B) any offense punishable under the Controlled Substances Act (21 U.S.C. 801 et
seq.) or the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.);
(C) any offense described in section 922(a)(1), 922(a)(3), 922(a)(5),
or 922(b)(3) of this title, where the firearm or ammunition intended to be used in
any such offense is involved in a pattern of activities which includes a violation of
any offense described insection 922(a)(1), 922(a)(3), 922(a)(5), or 922(b)(3) of
this title;
(D) any offense described in section 922(d) of this title where the firearm or
ammunition is intended to be used in such offense by the transferor of such
firearm or ammunition;
(E) any offense described in section 922(i), 922(j), 922(l), 922(n), or 924(b) of
this title; and
(F) any offense which may be prosecuted in a court of the United States which
involves the exportation of firearms or ammunition.
(e)
(1) In the case of a person who violates section 922(g) of this title and has three previous
convictions by any court referred to insection 922(g)(1) of this title for a violent felony or
a serious drug offense, or both, committed on occasions different from one another, such
person shall be fined under this title and imprisoned not less than fifteen years, and,
notwithstanding any other provision of law, the court shall not suspend the sentence of, or
grant a probationary sentence to, such person with respect to the conviction under section
922(g).
(2) As used in this subsection--
(A) the term “serious drug offense” means--
(i) an offense under the Controlled Substances Act (21 U.S.C. 801 et seq.),
the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.),
or chapter 705 of title 46, for which a maximum term of imprisonment of
ten years or more is prescribed by law; or
(ii) an offense under State law, involving manufacturing, distributing, or
possessing with intent to manufacture or distribute, a controlled substance
(as defined in section 102 of the Controlled Substances Act (21 U.S.C.
[A-9]
802)), for which a maximum term of imprisonment of ten years or more is
prescribed by law;
(B) the term “violent felony” means any crime punishable by imprisonment for a
term exceeding one year, or any act of juvenile delinquency involving the use or
carrying of a firearm, knife, or destructive device that would be punishable by
imprisonment for such term if committed by an adult, that--
(i) has as an element the use, attempted use, or threatened use of physical
force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or
otherwise involves conduct that presents a serious potential risk of
physical injury to another; and
(C) the term “conviction” includes a finding that a person has committed an act of
juvenile delinquency involving a violent felony.
(f) In the case of a person who knowingly violates section 922(p), such person shall be fined
under this title, or imprisoned not more than 5 years, or both.
(g) Whoever, with the intent to engage in conduct which--
(1) constitutes an offense listed in section 1961(1),
(2) is punishable under the Controlled Substances Act (21 U.S.C. 801 et seq.), the
Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or chapter 705 of
title 46,
(3) violates any State law relating to any controlled substance (as defined in section
102(6) of the Controlled Substances Act (21 U.S.C. 802(6))), or
(4) constitutes a crime of violence (as defined in subsection (c)(3)),
travels from any State or foreign country into any other State and acquires, transfers, or
attempts to acquire or transfer, a firearm in such other State in furtherance of such
purpose, shall be imprisoned not more than 10 years, fined in accordance with this title,
or both.
(h) Whoever knowingly transfers a firearm, knowing that such firearm will be used to commit a
crime of violence (as defined in subsection (c)(3)) or drug trafficking crime (as defined in
subsection (c)(2)) shall be imprisoned not more than 10 years, fined in accordance with this title,
or both.
(i)
(1) A person who knowingly violates section 922(u) shall be fined under this title,
imprisoned not more than 10 years, or both.
(2) Nothing contained in this subsection shall be construed as indicating an intent on the
part of Congress to occupy the field in which provisions of this subsection operate to the
exclusion of State laws on the same subject matter, nor shall any provision of this
subsection be construed as invalidating any provision of State law unless such provision
is inconsistent with any of the purposes of this subsection.
(j) A person who, in the course of a violation of subsection (c), causes the death of a person
through the use of a firearm, shall--
[A-10]
(1) if the killing is a murder (as defined in section 1111), be punished by death or by
imprisonment for any term of years or for life; and
(2) if the killing is manslaughter (as defined in section 1112), be punished as provided in
that section.
(k) A person who, with intent to engage in or to promote conduct that--
(1) is punishable under the Controlled Substances Act (21 U.S.C. 801 et seq.), the
Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or chapter 705 of
title 46;
(2) violates any law of a State relating to any controlled substance (as defined in section
102 of the Controlled Substances Act,21 U.S.C. 802); or
(3) constitutes a crime of violence (as defined in subsection (c)(3)),
smuggles or knowingly brings into the United States a firearm, or attempts to do so, shall
be imprisoned not more than 10 years, fined under this title, or both.
(l) A person who steals any firearm which is moving as, or is a part of, or which has moved in,
interstate or foreign commerce shall be imprisoned for not more than 10 years, fined under this
title, or both.
(m) A person who steals any firearm from a licensed importer, licensed manufacturer, licensed
dealer, or licensed collector shall be fined under this title, imprisoned not more than 10 years, or
both.
(n) A person who, with the intent to engage in conduct that constitutes a violation of section
922(a)(1)(A), travels from any State or foreign country into any other State and acquires, or
attempts to acquire, a firearm in such other State in furtherance of such purpose shall be
imprisoned for not more than 10 years.
(o) A person who conspires to commit an offense under subsection (c) shall be imprisoned for
not more than 20 years, fined under this title, or both; and if the firearm is a machinegun or
destructive device, or is equipped with a firearm silencer or muffler, shall be imprisoned for any
term of years or life.
(p) Penalties relating to secure gun storage or safety device.--
(1) In general.--
(A) Suspension or revocation of license; civil penalties.--With respect to each
violation of section 922(z)(1) by a licensed manufacturer, licensed importer, or
licensed dealer, the Secretary may, after notice and opportunity for hearing--
(i) suspend for not more than 6 months, or revoke, the license issued to the
licensee under this chapter that was used to conduct the firearms transfer;
or
(ii) subject the licensee to a civil penalty in an amount equal to not more
than $2,500.
(B) Review.--An action of the Secretary under this paragraph may be reviewed
only as provided under section 923(f).
[A-11]
(2) Administrative remedies.--The suspension or revocation of a license or the
imposition of a civil penalty under paragraph (1) shall not preclude any administrative
remedy that is otherwise available to the Secretary.
[A-12]
26 U.S.C. § 5845
§ 5845. Definitions
For the purpose of this chapter--
(a) Firearm.--The term “firearm” means
(1) a shotgun having a barrel or barrels of less than 18 inches in length;
(2) a weapon made from a shotgun if such weapon as modified has an overall
length of less than 26 inches or a barrel or barrels of less than 18 inches in length;
(3) a rifle having a barrel or barrels of less than 16 inches in length;
(4) a weapon made from a rifle if such weapon as modified has an overall length
of less than 26 inches or a barrel or barrels of less than 16 inches in length;
(5) any other weapon, as defined in subsection (e);
(6) a machinegun;
(7) any silencer (as defined in section 921 of Title 18, United States Code); and
(8) a destructive device. The term “firearm” shall not include an antique firearm
or any device (other than a machinegun or destructive device) which, although
designed as a weapon, the Secretary finds by reason of the date of its
manufacture, value, design, and other characteristics is primarily a collector's item
and is not likely to be used as a weapon.
(b) Machinegun.--The term “machinegun” means any weapon which shoots, is designed
to shoot, or can be readily restored to shoot, automatically more than one shot, without
manual reloading, by a single function of the trigger. The term shall also include the
frame or receiver of any such weapon, any part designed and intended solely and
exclusively, or combination of parts designed and intended, for use in converting a
weapon into a machinegun, and any combination of parts from which a machinegun can
be assembled if such parts are in the possession or under the control of a person.
(c) Rifle.--The term “rifle” means a weapon designed or redesigned, made or remade, and
intended to be fired from the shoulder and designed or redesigned and made or remade to
use the energy of the explosive in a fixed cartridge to fire only a single projectile through
a rifled bore for each single pull of the trigger, and shall include any such weapon which
may be readily restored to fire a fixed cartridge.
(d) Shotgun.--The term “shotgun” means a weapon designed or redesigned, made or
remade, and intended to be fired from the shoulder and designed or redesigned and made
or remade to use the energy of the explosive in a fixed shotgun shell to fire through a
smooth bore either a number of projectiles (ball shot) or a single projectile for each pull
of the trigger, and shall include any such weapon which may be readily restored to fire a
fixed shotgun shell.
(e) Any other weapon.--The term “any other weapon” means any weapon or device
capable of being concealed on the person from which a shot can be discharged through
the energy of an explosive, a pistol or revolver having a barrel with a smooth bore
designed or redesigned to fire a fixed shotgun shell, weapons with combination shotgun
[A-13]
and rifle barrels 12 inches or more, less than 18 inches in length, from which only a
single discharge can be made from either barrel without manual reloading, and shall
include any such weapon which may be readily restored to fire. Such term shall not
include a pistol or a revolver having a rifled bore, or rifled bores, or weapons designed,
made, or intended to be fired from the shoulder and not capable of firing fixed
ammunition.
(f) Destructive device.--The term “destructive device” means
(1) any explosive, incendiary, or poison gas
(A) bomb,
(B) grenade,
(C) rocket having a propellent charge of more than four ounces,
(D) missile having an explosive or incendiary charge of more than one-
quarter ounce,
(E) mine, or
(F) similar device;
(2) any type of weapon by whatever name known which will, or which may be
readily converted to, expel a projectile by the action of an explosive or other
propellant, the barrel or barrels of which have a bore of more than one-half inch in
diameter, except a shotgun or shotgun shell which the Secretary finds is generally
recognized as particularly suitable for sporting purposes; and
(3) any combination of parts either designed or intended for use in converting any
device into a destructive device as defined in subparagraphs (1) and (2) and from
which a destructive device may be readily assembled.
The term “destructive device” shall not include any device which is neither
designed nor redesigned for use as a weapon; any device, although originally
designed for use as a weapon, which is redesigned for use as a signaling,
pyrotechnic, line throwing, safety, or similar device; surplus ordnance sold,
loaned, or given by the Secretary of the Army pursuant to the provisions
of section 4684(2), 4685, or 4686 of Title 10 of the United States Code; or any
other device which the Secretary finds is not likely to be used as a weapon, or is
an antique or is a rifle which the owner intends to use solely for sporting
purposes.
(g) Antique firearm.--The term “antique firearm” means any firearm not designed or
redesigned for using rim fire or conventional center fire ignition with fixed ammunition
and manufactured in or before 1898 (including any matchlock, flintlock, percussion cap,
or similar type of ignition system or replica thereof, whether actually manufactured
before or after the year 1898) and also any firearm using fixed ammunition manufactured
in or before 1898, for which ammunition is no longer manufactured in the United States
and is not readily available in the ordinary channels of commercial trade.
[A-14]
(h) Unserviceable firearm.--The term “unserviceable firearm” means a firearm which is
incapable of discharging a shot by means of an explosive and incapable of being readily
restored to a firing condition.
(i) Make.--The term “make”, and the various derivatives of such word, shall include
manufacturing (other than by one qualified to engage in such business under this
chapter), putting together, altering, any combination of these, or otherwise producing a
firearm.
(j) Transfer.--The term “transfer” and the various derivatives of such word, shall include
selling, assigning, pledging, leasing, loaning, giving away, or otherwise disposing of.
(k) Dealer.--The term “dealer” means any person, not a manufacturer or importer,
engaged in the business of selling, renting, leasing, or loaning firearms and shall include
pawnbrokers who accept firearms as collateral for loans.
(l) Importer.--The term “importer” means any person who is engaged in the business of
importing or bringing firearms into the United States.
(m) Manufacturer.--The term “manufacturer” means any person who is engaged in the
business of manufacturing firearms.
[A-15]
26 U.S.C. § 5861
§ 5861. Prohibited acts
It shall be unlawful for any person--
(a) to engage in business as a manufacturer or importer of, or dealer in, firearms without
having paid the special (occupational) tax required by section 5801 for his business or
having registered as required by section 5802; or
(b) to receive or possess a firearm transferred to him in violation of the provisions of this
chapter; or
(c) to receive or possess a firearm made in violation of the provisions of this chapter; or
(d) to receive or possess a firearm which is not registered to him in the National Firearms
Registration and Transfer Record; or
(e) to transfer a firearm in violation of the provisions of this chapter; or
(f) to make a firearm in violation of the provisions of this chapter; or
(g) to obliterate, remove, change, or alter the serial number or other identification of a
firearm required by this chapter; or
(h) to receive or possess a firearm having the serial number or other identification
required by this chapter obliterated, removed, changed, or altered; or
(i) to receive or possess a firearm which is not identified by a serial number as required
by this chapter; or
(j) to transport, deliver, or receive any firearm in interstate commerce which has not been
registered as required by this chapter; or
(k) to receive or possess a firearm which has been imported or brought into the United
States in violation of section 5844; or
(l) to make, or cause the making of, a false entry on any application, return, or record
required by this chapter, knowing such entry to be false.
[A-16]
USSG, § 2A2.2, 18 U.S.C.
§ 2A2.2. Aggravated Assault
(a) Base Offense Level: 14
(b) Specific Offense Characteristics
(1) If the assault involved more than minimal planning, increase by 2 levels.
(2) If (A) a firearm was discharged, increase by 5 levels; (B) a dangerous weapon
(including a firearm) was otherwise used, increase by 4 levels; (C) a dangerous weapon
(including a firearm) was brandished or its use was threatened, increase by 3 levels.
(3) If the victim sustained bodily injury, increase the offense level according to the
seriousness of the injury:
Degree of Bodily Injury
Increase in Level
(A) Bodily Injury add 3
(B) Serious Bodily Injury add 5
(C) Permanent or Life-Threatening Bodily Injury add 7
(D) If the degree of injury is between that specified in subdivisions (A) and (B), add 4 levels; or
(E) If the degree of injury is between that specified in subdivisions (B) and (C), add 6 levels.
However, the cumulative adjustments from application of subdivisions (2) and (3) shall not
exceed 10 levels.
(4) If the assault was motivated by a payment or offer of money or other thing of value, increase
by 2 levels.
(5) If the offense involved the violation of a court protection order, increase by 2 levels.
(6) If the defendant was convicted under 18 U.S.C. § 111(b) or § 115, increase by 2 levels.
<[Commentary to Guideline is located in Historical Note field. The following credit reflects
amendments to both Guideline and Commentary.]>
Credits
(Effective November 1, 1987; amended effective November 1, 1989; November 1, 1990;
November 1, 1995; November 1, 1997; November 1, 2001; November 1, 2002; November 1,
2004; November 1, 2006; November 1, 2007.)
Editors' Notes
COMMENTARY
<Statutory Provisions: 18 U.S.C. §§ 111, 112, 113(a)(2), (3),
(6), 114, 115(a), (b)(1), 351(e), 1751(e), 1841(a)(2)(C),1992(a)(7), 2199, 2291, 2332b(a)(1), 234
0A. For additional statutory provision(s), see Appendix A (Statutory Index).>
<Application Notes:>
<1. Definitions.--For purposes of guideline:>
[A-17]
<“Aggravated assault” means a felonious assault that involved (A) a dangerous weapon with
intent to cause bodily injury (i.e., not merely to frighten) with that weapon; (B) serious bodily
injury; or (C) an intent to commit another felony.>
<“Brandished,” “bodily injury,” “firearm;” “otherwise used,” “permanent or life threatening
bodily injury,” and “serious bodily injury,” have the meaning given those terms in §
1B1.1 (Application Instructions), Application Note 1.>
<“Dangerous weapon” has the meaning given that term in § 1B.1, Application Note 1, and
includes any instrument that is not ordinarily used as a weapon (e.g., a car, a chair, or an ice
pick) if such an instrument is involved in the offense with the intent to commit bodily injury.>
<2. Application of Subsection (b)(1).--For purposes of subsection (b)(1), “more than minimal
planning” means more planning than is typical for commission of the offense in a simple form.
“More than minimal planning” also exists if significant affirmative steps were taken to conceal
the offense, other than conduct to which § 3C1.1 (Obstructing or Impeding the Administration of
Justice) applies. For example, waiting to commit the offense when no witnesses were present
would not alone constitute more than minimal planning. By contrast, luring the victim to a
specific location or wearing a ski mask to prevent identification would constitute more than
minimal planning.>
<3. Application of Subsection (b)(2).--In a case involving a dangerous weapon with intent to
cause bodily injury, the court shall apply both the base offense level and subsection (b)(2).>
<4. Application of Official Victim Adjustment.--If subsection (b)(6) applies, § 3A1.2 (Official
Victim) also shall apply.>
<Background: This guideline covers felonious assaults that are more serious than minor assaults
because of the presence of an aggravating factor, i.e., serious bodily injury, the involvement of a
dangerous weapon with intent to cause bodily injury, or the intent to commit another felony.
Such offenses occasionally may involve planning or be committed for hire. Consequently, the
structure follows § 2A2.1 (Assault with Intent to Commit Murder, Attempted Murder). This
guideline also covers attempted manslaughter and assault with intent to commit manslaughter.
Assault with intent to commit murder is covered by § 2A2.1. Assault with intent to commit rape
is covered by § 2A3.1 (Criminal Sexual Abuse; Attempt to Commit Criminal Sexual Abuse.)>
<An assault that involves the presence of a dangerous weapon is aggravated in form when the
presence of the dangerous weapon is coupled with the intent to cause bodily injury. In such a
case, the base offense level and the weapon enhancement in subsection (b)(2) take into account
different aspects of the offense, even if application of the base offense level and the weapon
enhancement is based on the same conduct.>
<Subsection (b)(6) implements the directive to the Commission in subsection 11008(e) of the
21st Century Department of Justice Appropriations Act (the “Act”), Public Law 107-273. The
enhancement in subsection (b)(6) is cumulative to the adjustment in § 3A1.2 (Official Victim) in
order to address adequately the directive in section 11008(e)(2)(D) of the Act, which provides
that the Commission shall consider “the extent to which sentencing enhancements within the
Federal guidelines and the authority of the court to impose a sentence in excess of the applicable
[A-18]
guideline range are adequate to ensure punishment at or near the maximum penalty for the most
egregious conduct covered by” 18 U.S.C. §§ 111 and115.>
[A-19]
USSG, § 4B1.2, 18 U.S.C.
§ 4B1.2. Definitions of Terms Used in Section 4B1.1
(a) The term “crime of violence” means any offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that--
(1) has as an element the use, attempted use, or threatened use of physical force against
the person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise
involves conduct that presents a serious potential risk of physical injury to another.
(b) The term “controlled substance offense” means an offense under federal or state law,
punishable by imprisonment for a term exceeding one year, that prohibits the manufacture,
import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance)
or the possession of a controlled substance (or a counterfeit substance) with intent to
manufacture, import, export, distribute, or dispense.
(c) The term “two prior felony convictions” means
(1) the defendant committed the instant offense of conviction subsequent to sustaining at
least two felony convictions of either a crime of violence or a controlled substance
offense (i.e., two felony convictions of a crime of violence, two felony convictions of a
controlled substance offense, or one felony conviction of a crime of violence and one
felony conviction of a controlled substance offense), and
(2) the sentences for at least two of the aforementioned felony convictions are counted
separately under the provisions of § 4A1.1(a), (b), or (c). The date that a defendant
sustained a conviction shall be the date that the guilt of the defendant has been
established, whether by guilty plea, trial, or plea of nolo contendere.
<[Commentary to Guideline is located in Historical Note field. The following credit reflects
amendments to both Guideline and Commentary.]>
Credits
(Effective November 1, 1987; amended effective January 15, 1988; November 1, 1989;
November 1, 1991; November 1, 1992; November 1, 1995; November 1, 1997; November 1,
2000; November 1, 2002; November 1, 2004; November 1, 2007; November 1, 2009.)
Editors' Notes
COMMENTARY
<Application Notes:>
<1. For purposes of this guideline--“Crime of violence” and “controlled substance offense”
include the offenses of aiding and abetting, conspiring, and attempting to commit such offenses.>
<“Crime of violence” includes murder, manslaughter, kidnapping, aggravated assault, forcible
sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a
dwelling. Other offenses are included as “crimes of violence” if (A) that offense has as an
element the use, attempted use, or threatened use of physical force against the person of another,
[A-20]
or (B) the conduct set forth (i.e., expressly charged) in the count of which the defendant was
convicted involved use of explosives (including any explosive material or destructive device) or,
by its nature, presented a serious potential risk of physical injury to another.>
<“Crime of violence” does not include the offense of unlawful possession of a firearm by a
felon, unless the possession was of a firearm described in 26 U.S.C. § 5845(a). Where the instant
offense is the unlawful possession of a firearm by a felon, § 2K2.1 (Unlawful Receipt,
Possession, or Transportation of Firearms or Ammunition; Prohibited Transactions Involving
Firearms or Ammunition) provides an increase in offense level if the defendant had one or more
prior felony convictions for a crime of violence or controlled substance offense; and, if the
defendant is sentenced under the provisions of 18 U.S.C. § 924(e), § 4B1.4 (Armed Career
Criminal) will apply.>
<Unlawfully possessing a listed chemical with intent to manufacture a controlled substance (21
U.S.C. § 841(c)(1)) is a “controlled substance offense.”>
<Unlawfully possessing a firearm described in 26 U.S.C. § 5845(a) (e.g., a sawed-off shotgun or
sawed-off rifle, silencer, bomb, or machine gun) is a “crime of violence”.>
<Unlawfully possessing a prohibited flask or equipment with intent to manufacture a controlled
substance (21 U.S.C. § 843(a)(6)) is a “controlled substance offense.”>
<Maintaining any place for the purpose of facilitating a drug offense (21 U.S.C. § 856) is a
“controlled substance offense” if the offense of conviction established that the underlying
offense (the offense facilitated) was a “controlled substance offense.”>
<Using a communications facility in committing, causing, or facilitating a drug offense (21
U.S.C. § 843(b)) is a “controlled substance offense” if the offense of conviction established that
the underlying offense (the offense committed, caused, or facilitated) was a “controlled
substance offense.”>
<A violation of 18 U.S.C. 924(c) or 929(a) is a “crime of violence” or a “controlled substance
offense” if the offense of conviction established that the underlying offense was a “crime of
violence” or a “controlled substance offense”. (Note that in the case of a prior 18 U.S.C.
924(c) or 929(a) conviction, if the defendant also was convicted of the underlying offense, the
sentences for the two prior convictions will be counted as a single sentence under §
4A1.2 (Definitions and Instructions for Computing Criminal History).)>
<“Prior felony conviction” means a prior adult federal or state conviction for an offense
punishable by death or imprisonment for a term exceeding one year, regardless of whether such
offense is specifically designated as a felony and regardless of the actual sentence imposed. A
conviction for an offense committed at age eighteen or older is an adult conviction. A conviction
for an offense committed prior to age eighteen is an adult conviction if it is classified as an adult
conviction under the laws of the jurisdiction in which the defendant was convicted (e.g., a federal
conviction for an offense committed prior to the defendant's eighteenth birthday is an adult
conviction if the defendant was expressly proceeded against as an adult).>
<2. Section 4B1.1 (Career Offender) expressly provides that the instant and prior offenses must
be crimes of violence or controlled substance offenses of which the defendant was convicted.
Therefore, in determining whether an offense is a crime of violence or controlled substance for
[A-21]
the purposes of § 4B1.1 (Career Offender), the offense of conviction (i.e., the conduct of which
the defendant was convicted) is the focus of inquiry.>
<3. The provisions of § 4A1.2 (Definitions and Instructions for Computing Criminal History) are
applicable to the counting of convictions under § 4B1.1.>
