United States Court of Appeals
For the First Circuit
No. 05-1759
UNITED STATES OF AMERICA,
Appellee,
v.
DANIEL RALPH BISHOP,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, Jr., U.S. District Judge]
Before
Boudin, Chief Judge,
Coffin, Senior Circuit Judge,
and Selya, Circuit Judge.
Matthew S. Erickson with whom Smith Law Offices, P.A., was on
brief for appellant.
Margaret D. McGaughey, Appellate Chief, with whom Paula D.
Silsby, United States Attorney, was on brief for appellee.
June 27, 2006
COFFIN, Senior Circuit Judge. Appellant, a felon, was
prosecuted under 18 U.S.C. § 922(g)(1) for possession of firearms
seized in his residence. Convicted after a jury trial, and the
district court having found that his criminal record included
convictions for three violent felonies, he was sentenced to a term
of 188 months under the Armed Career Criminal Act (ACCA), 18 U.S.C.
§ 924(e)(1), which sets a mandatory minimum term of fifteen years.
Appellant asserts two trial errors: exclusion of the cross-
examination of government witnesses and refusal to give requested
jury instructions on an affirmative defense. He also challenges a
sentencing ruling that one of his prior convictions – possession of
an unregistered sawed-off shotgun – was a "violent felony." This
appeal follows a vigorously tried and briefed case and thoughtful
consideration of the issues by the district court. Our brief
disposition does not belittle the gravity of appellant's concerns,
but signifies that the case needs no further legal analysis before
closure.
Appellant's major effort has been directed to the sentencing
issue. The district court felt bound by our decision in United
States v. Fortes, 141 F.3d 1, 8 (1st Cir. 1998), where we flatly
held that "possession of a sawed-off shotgun is a 'violent felony'
within the meaning of ACCA." The district court took note of
appellant's arguments urging the overruling of Fortes, but properly
also noted that it was bound to it as the law of the circuit.
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Appellant's main brief closed with the request that the
judgment be vacated and the case remanded for a new trial. In his
reply brief, he substituted the request that Fortes be reviewed by
the court en banc and overruled. We find ourselves, as a panel, in
the same position as the district court; absent "supervening
authority sufficient to warrant disregard of established
precedent," we, too, are bound to follow Fortes. Lattab v.
Ashcroft, 384 F.3d 8, 15 (1st Cir. 2004); see also United States
v. Wogan, 938 F.2d 1446, 1449 (1st Cir. 1991).
We add, to avoid being misinterpreted, that we feel no
compulsion to initiate any en banc reconsideration of Fortes.
Contrary to appellant's assertion, we see no implicit inconsistency
with our prior ruling in United States v. Doe, 960 F.2d 221 (1st
Cir. 1992). In Doe we gave weight to a United State Sentencing
Commission commentary amendment to the effect that unlawful
possession of an ordinary or generic firearm, without more, did not
meet the pertinent definition of a violent felony: a crime that
“involves conduct that presents a serious potential risk of
physical injury to another." Id. at 225. In Fortes we gave weight
to the fact that the Sentencing Commission had not issued a similar
amendment covering such specialized weapons as silencers, machine
guns, or sawed-off shotguns, particularly identified in 26 U.S.C.
§ 5845(a), unregistered possession of which is barred by 26 U.S.C.
§ 5861(d).
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Our position has since been reinforced by the Sentencing
Commission. In 2004, it again amended its commentary – this time
to address the specialized weapons – and explicitly “expand[ed] the
definition of ‘crime of violence’ . . . to include unlawful
possession of any firearm described in 26 U.S.C. § 5845(a).” U.S.
Sentencing Guidelines Manual app. C supp., amend. 674, at 134
(2004). The rationale for the change tracked our discussion in
Fortes, where we deemed the difference between possession of a
generic "firearm" and a weapon "singled-out for particularized
treatment" to be "very substantial." 141 F.3d at 7. The
Commission noted that “Congress has determined that those firearms
described in 26 U.S.C. § 5845(a) are inherently dangerous and when
possessed unlawfully, serve only violent purposes.” We made the
same observation in Fortes, citing United States v. Dunn, 946 F.2d
615, 621 (9th Cir. 1991), for the proposition that unlawful
possession of § 5845(a) firearms involves a conjunction of
disregard for law and the risk of use and injury.1
The Commission also noted that a number of courts endorsed
this view, and we have identified at least six circuits in addition
1
Although the definitions of “violent felony” in the Armed
Career Criminal Act, see 18 U.S.C. § 924(e)(2)(B), and “crime of
violence” in the Sentencing Guidelines are not identical, see U.S.
Sentencing Guidelines Manual §§ 4B1.2, 4B1.4, comment. (n.1), the
“serious potential risk of physical injury to another” language is
the same in both and “courts have ‘look[ed] generally to cases
pertaining to either provision “to elucidate the nature of the
categorical inquiry,”’” United States v. Santos, 363 F.3d 19, 22
n.5 (1st Cir. 2004).
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to ourselves and the Ninth Circuit: United States v. Owens, 447
F.3d 1345, 1346-47 (11th Cir. 2006) (per curiam); United States v.
Serna, 309 F.3d 859, 863-64 (5th Cir. 2002); United States v.
Johnson, 246 F.3d 330, 334-35 (4th Cir. 2001); United States v.
Dwyer, 245 F. 3d 1168, 1172 (10th Cir. 2001); United States v.
Brazeau, 237 F.3d 842, 844-45 (7th Cir. 2001); United States v.
Allegree, 175 F.3d 648, 651 (8th Cir. 1999).
Finally, appellant argues that the ground rules governing the
determination of a prior conviction of a violent felony have
dramatically changed. In Taylor v. United States, 495 U.S. 575,
602 (1990), the Court, referring to the same felon-in-possession
enhancement provision at issue here, stated, "[I]t generally
requires the trial court to look only to the fact of conviction and
the statutory definition of the prior offense." Now, appellant
invokes the renewed emphasis on juries in such post-Taylor cases
as Shepard v. United States, 544 U.S. 13 (2005); United States v.
Booker, 543 U.S. 220 (2005); and Apprendi v. New Jersey, 530 U.S.
466 (2000), and claims that a jury must consider the particulars of
the possession of a sawed-off shotgun – for example, whether such
weapon was found in working order in close proximity or broken in
an inaccessible location – to determine if they constituted "a
serious potential risk of physical injury to another."
In addition to other reasons why such cases are inapt, we
agree with the Tenth Circuit's holding in United States v. Moore,
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401 F.3d 1220, 1225 (10th Cir. 2005), that they have not changed
the proposition that "determining whether a given felony
constitutes a 'violent felony' is a question of law and not fact .
. ." and thus a matter for the court and not a jury. See also
United States v. Santos, 363 F.3d 19, 22 (1st Cir. 2004) (whether
a prior conviction qualifies as a “crime of violence” for purposes
of the career offender provision of the Sentencing Guidelines “is
a question of law that we review de novo”); cf. Aguiar v. Gonzales,
438 F.3d 86, 88 (1st Cir. 2006) (whether an offense constitutes a
“crime of violence” under 18 U.S.C. § 16, thus qualifying as an
“aggravated felony” for immigration purposes, is a question of
law).
The two trial errors asserted may be readily resolved. The
limitation of cross-examination of, principally, one government
witness was clearly a call within the trial court's discretion.
The hoped for benefit to defendant was that a witness who had
implicated him in possessing weapons had, on another occasion,
falsely accused him of rape. This is but minimally argued, without
citations. In any event, the likelihood of diversion and
prejudice, see Fed. R. Evid. 403, and the unlikelihood of
appellant's ability to counter any denial by the witness, see Fed.
R. Evid. 608(b), amply supported the exclusion.
After concluding that appellant had not produced enough
evidence to support his affirmative defense of necessity, the court
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refused to give a requested instruction. This issue, however, is
forfeited, for appellant failed to renew his request after the
court had delivered its instructions, and there was unquestionably
no plain error. See United States v. Mendoza-Acevedo, 950 F.2d 1,
4 (1st Cir. 1991).
Affirmed.
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