UNITED STATES COURT OF APPEALS
For the Fifth Circuit
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No. 00-40508
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
EDUARDO RIVAS-PALACIOS,
Defendant-Appellant.
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Appeal from the United States District Court
For the Eastern District of Texas
Tyler Division
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March 9, 2001
Before FARRIS*, JOLLY, and DAVIS, Circuit Judges.
PER CURIAM:
Rivas-Palacios appeals the district court’s imposition of a 16
level sentencing enhancement, arguing that his previous conviction
for unlawful possession of a short-barreled shotgun was not an
“aggravated felony” within the meaning of the sentencing
guidelines. For the following reasons, we affirm the judgment of
the district court.
I.
Eduardo Rivas-Palacios was charged in a single-count
indictment with being found present in the United States after
*
Circuit Judge of the Ninth Circuit, sitting by designation.
deportation in violation of 8 U.S.C. § 1326. Rivas plead guilty to
the indictment without the benefit of a written plea agreement with
the Government. The PSR assigned Rivas a base offense level of 8
under U.S.S.G. § 2L1.2(a). Rivas was then assigned a 16 level
increase pursuant to U.S.S.G. § 2L1.2(b)(2) based on his prior
Texas conviction for unlawful possession of a short-barreled
shotgun, categorized in the PSR as an aggravated felony. Finally,
Rivas received a 3 level adjustment for acceptance of
responsibility. Based on a total offense level of 21 and a
criminal history category of V, Rivas’ guideline range of
imprisonment was 70 to 87 months. Rivas filed one objection to the
PSR, arguing that his prior Texas conviction for possession of a
short-barreled firearm was not an “aggravated felony”. The
district court overruled the objection, adopted the PSR, and
sentenced Rivas to 75 months imprisonment, 3 years supervised
release, and a $100 special assessment.
II.
We review a claim that the district court erred in applying
the sentencing guidelines de novo. United States v. Galvan-
Rodriguez, 169 F. 3d 217, 218 (5th Cir. 1999), cert denied, 528 U.S.
837 (1999).
III.
Sentencing Guideline § 2L1.2(b)(1)(A) provides for a 16 level
increase to a defendant’s offense level if he was previously
deported after conviction of an “aggravated felony”. Application
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note 1 explains that an “aggravated felony” for purposes of 2L1.2
is defined at 8 U.S.C. § 1103(a)(43). Part (F) of that section
defines an “aggravated felony” as a “crime of violence (as defined
in section 16 of Title 18, but not including a purely political
offense) for which the term of imprisonment is at least one year.”
18 U.S.C. § 16 provides:
The term “crime of violence” means -
(a) an offense that has as an element the use,
attempted use, or threatened use of physical
force against the person or property of
another, or
(b) any other offense that is a felony and
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.
The Government argues that Rivas’ Texas offense should be
construed as a “crime of violence” under part b of the above
statute because the mere possession of an unregistered firearm such
as a sawed-off shotgun creates a “substantial risk” of “physical
force against the person or property of another”.
Although this is a case of first impression in this Circuit,
we are not without guidance on the question. The Ninth Circuit has
held that possession of an unregistered firearm is a crime of
violence under 18 U.S.C. § 16. United States v. Dunn, 946 F. 2d
615, 620-21 (9th Cir. 1991), cert denied, 502 U.S. 950 (1991)
(involving a sawed-off shotgun). The First Circuit has found the
possession of a sawed-off shotgun to be a “violent felony” under a
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statute very similar to 18 U.S.C. § 16 (merely requiring that the
crime involve “conduct that presents a serious potential risk of
physical injury to another”). United States v. Fortes, 141 F. 3d
1, 7-8 (1st Cir. 1998). Finally, this Court has held that
possession of a pipe bomb is a “crime of violence” under 18 U.S.C.
924(c)(3), which defines this term in a way that is practically
identical to the definition of “crime of violence” in 18 U.S.C. §
16. United States v. Jennings, 195 F. 3d 795, 797-99 (5th Cir.
1999).
In Jennings, we recognized that
Not all firearms must be registered...Only
those firearms must be registered that
Congress has found to be inherently dangerous
and generally lacking usefulness, except for
violent and criminal purposes, such as sawed-
off shotguns and hand grenades...The primary
reason that unregistered possession of these
particular weapons is a crime is the virtual
inevitability that such possession will result
in violence. Id. at 799.(citations omitted).
We further found in that case that “possession of an unregistered
pipe bomb, by its very nature, creates a substantial risk of
violence...In fact, we cannot conceive of any non-violent or lawful
uses for a pipe bomb.” Id. at 798.
For essentially the same reasons discussed in Jennings, we now
join the Ninth Circuit in holding that the possession of an
unregistered firearm is a “crime of violence” as defined in 18
U.S.C. § 16. We are persuaded that the unlawful possession of any
unregistered firearm , a sawed-off shotgun in this case, “involves
a substantial risk that physical force against the person or
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property of another” will occur. The district court was,
therefore, correct in applying a 16 level sentencing enhancement in
this case.
IV.
For the foregoing reasons, the judgment of the district court
is AFFIRMED.
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