PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 09-5027
CEDRICK LAMONT HOOD,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Greensboro.
Thomas D. Schroeder, District Judge.
(1:08-cr-00160-TDS-1)
Argued: October 29, 2010
Decided: December 29, 2010
Before MOTZ, GREGORY, and SHEDD, Circuit Judges.
Affirmed by published opinion. Judge Motz wrote the opin-
ion, in which Judge Gregory and Judge Shedd joined.
COUNSEL
ARGUED: William C. Ingram, Jr., OFFICE OF THE FED-
ERAL PUBLIC DEFENDER, Greensboro, North Carolina,
for Appellant. Paul Alexander Weinman, OFFICE OF THE
UNITED STATES ATTORNEY, Winston-Salem, North Car-
olina, for Appellee. ON BRIEF: Louis C. Allen, Federal Pub-
2 UNITED STATES v. HOOD
lic Defender, Greensboro, North Carolina, for Appellant.
Anna Mills Wagoner, United States Attorney, Greensboro,
North Carolina, for Appellee.
OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
Cedrick Lamont Hood pled guilty to possession with intent
to distribute 16 grams of marijuana, in violation of 21 U.S.C.
§§ 841(a)(1) and (b)(1)(d), and carrying a firearm during a
drug trafficking offense, in violation of 18 U.S.C.
§ 924(c)(1)(A)(i). The district court found him to be a career
offender under the United States Sentencing Guidelines and
so enhanced his sentence, imposing a 140-month term of
imprisonment. Hood appeals, challenging only the sentence
enhancement. He contends that a prior North Carolina convic-
tion for possession of a weapon of mass death and destruction
does not constitute a predicate "crime of violence" justifying
a sentence as a career criminal under the Guidelines. We
agree with the district court that this offense does constitute
a "crime of violence" under the Guidelines. Accordingly, we
affirm.
I.
The Guidelines provide that a court should enhance a
defendant’s sentence as a career offender if:
(1) the defendant was at least eighteen years old at
the time the defendant committed the instant
offense of conviction;
(2) the instant offense of conviction is a felony that
is either a crime of violence or a controlled
substance offense; and
UNITED STATES v. HOOD 3
(3) the defendant has at least two prior felony con-
victions of either a crime of violence or a con-
trolled substance offense.
U.S.S.G. § 4B1.1(a) (2010).
Hood concedes that he was at least eighteen years old when
he committed the instant offense, as required by § 4B.1(1),
and that the instant felony offense is a controlled substance
offense, as required by § 4B1.1(a)(2). He further concedes
that a prior conviction for felony robbery constitutes a "crime
of violence" for purposes of § 4B1.1(a)(3). Appellant’s Br. at
7. Therefore, the sole question before us is whether the other
prior conviction on which the Government relies—a 1996
North Carolina conviction for felony possession of "a weapon
of mass death and destruction," namely a sawed-off shotgun1
—also constitutes a "crime of violence" so as to provide the
Government with the second predicate conviction necessary
for a sentence as a career offender under § 4B1.1(a)(3).
The Guidelines define a "crime of violence" as:
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
1
Hood pled guilty to felony possession of a sawed-off shotgun, in viola-
tion of N.C. Gen. Stat. § 14-288.8 (2010). See Appellant’s Br. at 5. That
statute criminalizes the possession of a weapon "of mass death and
destruction," § 14-288.8(a), which it defines to include "any shotgun with
a barrel or barrels of less than 18 inches in length or an overall length of
less than 26 inches." § 14-288.8(c)(3).
4 UNITED STATES v. HOOD
conduct that presents a serious potential risk of phys-
ical injury to another.
U.S.S.G. § 4B1.2(a). Because § 4B1.2(a) does not expressly
enumerate felony possession of a sawed-off shotgun, it consti-
tutes a "crime of violence" only if it falls under the "residual"
or "otherwise" clause in § 4B1.2(a)(2). Thus, to qualify, it
must "otherwise involve[ ] conduct that presents a serious
potential risk of physical injury to another."
In 2001, we considered this very question and held that
possession of a sawed-off shotgun qualified as a "crime of
violence" under the residual clause of the Guidelines. See
United States v. Johnson, 246 F.3d 330 (4th Cir. 2001). In
Johnson, however, our inquiry focused solely on whether pos-
session of a sawed-off shotgun "presents a serious potential
risk of physical injury to another." Id. at 332. Because we
found it did, we held that possession of a sawed-off shotgun
constituted a predicate "crime of violence" for purposes of
§ 4B1.2. See id. at 335.
Hood acknowledges our holding in Johnson, but contends
that Begay v. United States, 553 U.S. 137 (2008), requires that
we overrule Johnson. In Begay, the Supreme Court consid-
ered whether a DUI conviction qualifies as a predicate "vio-
lent felony" for purposes of a sentence enhancement under the
Armed Career Criminal Act (ACCA), 18 U.S.C.
§ 924(e)(2)(B) (2006), not a predicate "crime of violence"
under the Guidelines. We have held, however, that because
"substantially similar" language defines a "violent felony"
under ACCA and a "crime of violence" under the Guidelines,
the Begay "analysis is applicable to § 4B1.2(a)(2)." United
States v. Seay, 553 F.3d 732, 738-39 (4th Cir. 2009); see also
United States v. Rivers, 595 F.3d 558, 560 n.1 (4th Cir. 2010).
Moreover, "[b]ecause we are now bound to apply the Begay
framework," we have noted that the analysis we employed in
cases like Johnson "is no longer controlling." United States v.
UNITED STATES v. HOOD 5
Roseboro, 551 F.3d 226, 234 (4th Cir. 2009) abrogated on
other grounds by Rivers, 595 F.3d at 564.
Begay instructs that when, as here, a predicate offense is
not one of the listed crimes (burglary, arson, extortion, and
use of explosives), evaluation of the risk of physical injury
presented by the predicate offense constitutes only the first
step of the proper inquiry. 553 U.S. at 142. A court must also
determine whether the asserted predicate offense "involve[s]
purposeful, violent, and aggressive conduct." Id. at 144 (inter-
nal quotation marks omitted).2
Thus, we must determine whether, in light of Begay,
Hood’s prior conviction for felony possession of a sawed-off
shotgun constitutes a predicate "crime of violence" for pur-
poses of the Sentencing Guidelines.
II.
Hood maintains that the two-step analysis established in
Begay requires us to find that the challenged predicate does
not qualify as a "crime of violence" under the Guidelines. He
does not argue that possession of a sawed-off shotgun fails the
first Begay prong, i.e., he does not dispute that it presents a
serious potential risk of physical injury to another. See Appel-
lant’s Br. at 10-11. Hood does argue, however, that posses-
sion of a sawed-off shotgun fails the second prong of the
Begay analysis because it is not similar in kind or degree of
risk present in the Guidelines’ enumerated offenses.
In support of this contention, Hood heavily relies on our
unpublished opinion in United States v. Haste, 292 F. App’x.
2
At sentencing, Hood acknowledged that the challenged predicate—
possession of a sawed-off shotgun in violation of N.C. Gen. Stat. § 14-
288.8—"has to be knowing." Accordingly, as he has also acknowledged,
he argues only that the asserted predicate "doesn’t meet the violent and
aggressive requirements."
6 UNITED STATES v. HOOD
249 (4th Cir. 2008), in which we applied Begay to hold that
possession of a sawed-off shotgun in violation of the same
North Carolina statute did not constitute a "violent felony"
under ACCA. As an unpublished opinion, Haste of course
provides no precedential authority. See, e.g., United States v.
Ruhe, 191 F.3d 376, 392 (4th Cir. 1999) ("[U]npublished
opinions are not binding precedent in this circuit."). However,
even if Haste constituted binding precedent, we would not
find Haste, which interpreted ACCA, controlling here.
This is so because of a fundamental difference between
ACCA and the Guidelines with respect to their treatment of
sawed-off shotguns.3 While in ACCA, Congress provided no
guidance through relevant history or commentary as to
whether a sawed-off shotgun constituted a predicate "violent
felony," the Sentencing Commission has expressly addressed
the question of whether a sawed-off shotgun constitutes a
"crime of violence." The commentary accompanying
U.S.S.G. § 4B1.2 specifically defines a "crime of violence" to
include "[u]nlawfully 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)." U.S.S.G. § 4B1.2, cmt. n.1.
The Supreme Court has long held that "commentary in the
Guidelines Manual that interprets or explains a guideline is
authoritative unless it violates the Constitution or a federal
statute, or is inconsistent with, or a plainly erroneous reading
of, that guideline." Stinson v. United States, 508 U.S. 36, 38
(1993); see also United States v. Turner, 59 F.3d 481, 485
(4th Cir. 1995). Hood offers no evidence or even any argu-
3
It is important to note that our holding is expressly limited to the pos-
session of a sawed-off shotgun. Although the Guidelines and ACCA nor-
mally parallel each other, they can diverge where the commentary
explicitly enumerates forbidden conduct. Where the commentary, how-
ever, is silent, no such divergence occurs. Additionally, we note that pos-
session of a sawed-off shotgun is unique in that the weapon has no non-
nefarious purposes.
UNITED STATES v. HOOD 7
ment that the commentary to § 4B1.2 conflicts with or consti-
tutes a plainly erroneous reading of the guideline.
In fact, this commentary, rather than conflicting with
§ 4B1.2 or reading it erroneously, offers helpful interpretation
of the guideline in question. Indeed, the commentary to
§ 4B1.2 speaks to the very intent question the Begay Court
found sufficiently unclear in ACCA as to necessitate the sec-
ond prong of its analysis, i.e. which crimes involving the risk
of serious physical injury Congress intended to include as
predicate offenses for purposes of the sentence enhancement.
See Begay, 553 U.S. at 142. The Begay Court explained that
the enumeration of specific offenses "indicates that the statute
covers only similar crimes, rather than every crime that pres-
ents a serious potential risk of physical injury to another." Id.
The Court repeatedly referred to what Congress "meant" by
the ACCA’s text, ultimately concluding that Congress
"meant" to limit the residual clause to crimes like the enumer-
ated ones. Id. Unlike Congress, the Commission has clearly
stated what it meant on this issue. Because the Commission’s
stated intent is not contrary to the language of the guideline
itself, or plainly erroneous, we must defer to the Commission.
United States v. Mason, 284 F.3d 555, 559 (4th Cir. 2002)
("The Commission’s interpretive commentary is akin to an
agency’s interpretation of its own legislative rules," and so
"entitled to substantial deference") (internal quotation omitted).4
Our holding that possession of a sawed-off shotgun consti-
tutes a "crime of violence" for purposes of § 4B1.1(a)(2) of
the Guidelines parallels that of the Sixth Circuit in United
4
It bears note that the Commission has not sought to revise the commen-
tary with respect to its classification of sawed-off shotguns in light of
Begay. Rather, although the "Sentencing Commission submitted proposed
amendments to the Guidelines to Congress on May 1, 2009, more than a
year after Begay," those "proposed amendments include a technical revi-
sion to the § 4B1.2 commentary, but do not change the definition of
‘crime of violence’ that includes possession of a sawed-off shotgun."
United States v. Vincent, 575 F.3d 820, 826 n.5 (8th Cir. 2009).
8 UNITED STATES v. HOOD
States v. Hawkins, 554 F.3d 615 (6th Cir. 2009). Moreover,
the Sixth Circuit deferred to the Guidelines commentary in
determining that possession of a sawed-off shotgun would
constitute a "crime of violence" under the Guidelines, while
also affirming its prior holding in United States v. Amos, 501
F.3d 524, 530 (6th Cir. 2007), that the same offense did not
constitute a "violent felony" under the ACCA. In words
equally applicable here, the Hawkins court reasoned:
Unlike the provision found in the ACCA, the career
offender enhancement at issue here, through its
Application Notes, specifically defines the term
‘crime of violence’ to include unlawful possession of
a sawed-off shotgun. We stated in Amos that, ‘if
Congress had wanted the ACCA to cover offenses
for possession of firearms as predicate offenses, it
could easily have done so explicitly (i.e., the defini-
tion of violent felony could have included ‘posses-
sion of a firearm in violation of state or federal
law’).’ In its Application Notes to U.S.S.G. § 4B1.2,
the Sentencing Commission has done just that.
Hawkins, 554 F.3d at 617 (internal citations omitted).5
III.
For all of these reasons, the judgment of the district court
is
AFFIRMED.
5
The Eleventh Circuit has also recognized the authoritative nature of the
Guidelines commentary in this context, holding that carrying a concealed
weapon in violation of Florida law does not constitute a "crime of vio-
lence" under the Guidelines. United States v. Archer, 531 F.3d 1347 (11th
Cir. 2008). The court reasoned that because the commentary to U.S.S.G.
§ 4B1.2 specifies that "‘[c]rime of violence’ does not include the unlawful
possession of a firearm by a felon," non-felon possession of a firearm
therefore should not constitute a "crime of violence" under the Guidelines
either. Id. at 1352.