IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 01-40836
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UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RUBEN SERNA, JR.,
Defendant - Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas, McAllen
October 11, 2002
Before JOLLY, SMITH, and DEMOSS1, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
This appeal presents the question whether the crime of
possession of a “prohibited weapon”, specifically a sawed-off
shotgun, under Texas law constitutes a crime of violence under the
federal sentencing guidelines. Ruben Serna pleaded guilty to
possessing a firearm as a convicted felon in violation of 18 U.S.C.
§ 922(g)(1). At sentencing, the district court found that Serna’s
previous state court felony conviction for possession of a
prohibited weapon was a crime of violence and enhanced his sentence
1
Judge DeMoss concurs in the judgment only.
on that basis. See U.S.S.G. § 4B1.2. The indictment underlying
this previous state court conviction identified the prohibited
weapon as a “shotgun with a barrel length of less than 18 inches.”2
This type of weapon is commonly known as a sawed-off shotgun. See,
United States v. Reyna, 130 F.3d 104 (5th Cir. 1997); United States
v. Ridlehuber, 11 F.3d 516 (5th Cir. 1997). It is reasonable to
conclude that a sawed-off shotgun, when possessed unlawfully, is
possessed for violent purposes only.3 Thus, the unlawful
possession of a sawed-off shotgun creates a serious potential risk
of physical injury and therefore constitutes a crime of violence
under the guidelines. Accordingly, we affirm Serna’s sentence.4
2
The record on appeal in this case did not contain a copy of
the state court indictment for possession of a prohibited weapon.
The panel required the parties to secure and furnish to the court
a copy of that relevant indictment. We urge the prosecution in the
future to include in the record before the trial court and this
court, a copy of the indictment containing each count upon which a
claim for punishment enhancement is based.
3
This is different from holding that all instances of
possession of sawed-off shotguns are for violent purposes only;
instead, we refer only to those instances of possession made a
crime under Texas law. For example, the Texas statute does not
make criminal the possession of these weapons by collectors,
members of the military or persons whose weapons are registered
under the National Firearms Act. TEX. PENAL CODE § 46.05(b)-(d).
These instances of possession are not even crimes, much less crimes
of violence.
4
Serna also appeals his conviction notwithstanding his
unconditional plea of guilty. He argues that in enacting §
922(g)(1), Congress exceeded the scope of its power under the
Commerce Clause, U.S. CONST., Art. I, § 8, cl. 3. Serna concedes
that this argument is foreclosed by our precedent. See United
States v. Rawls, 85 F.3d 240, 242-43 (5th Cir. 1996); United States
v. Kuban, 94 F.3d 971, 973 (5th Cir. 1996); United States v.
Gresham, 118 F.3d 258, 264 (5th Cir. 1997) (“The constitutionality
2
I
Two months after Ruben Serna’s release from prison, the police
executed a search of his home in Texas. During the search, the
police discovered a loaded Star, model Firestar, .40 caliber chrome
plated pistol. Serna admitted ownership of the pistol. He was
indicted and pleaded guilty, as earlier noted, for possessing this
pistol as a felon.
During his plea colloquy, Serna admitted that he had two
previous state felony convictions: (1) aggravated assault and (2)
possession of a prohibited weapon. At sentencing, the district
court classified these two convictions as crimes of violence under
the sentencing guidelines. Based on this finding, the district
court sentenced Serna to fifty-seven months in prison, a three-year
term of supervised release, and a $100 special assessment. Serna
now appeals his sentence and conviction. The only issue of merit
is whether the district court erred in enhancing his sentence by
determining that his conviction for posses
sing a “prohibited weapon” was a crime of violence under the
federal sentencing guidelines.
II
We review the district court’s interpretation and application
of the sentencing guidelines de novo. See United States v.
of § 922(g)(1) is not open to question.”). He raises the argument
in this appeal for the sole purpose of preserving it for further
review. Accordingly, we also affirm his conviction.
3
Deavours, 219 F.3d 400, 402 (5th Cir. 2000). Upon conviction for
unlawful possession of a firearm as a felon, the sentencing
guidelines impose a base offense level of 24 “if the defendant
committed any part of the instant offense subsequent to sustaining
at least two felony convictions of either a crime of violence or a
controlled substance offense.” U.S.S.G. § 2K2.1(a)(2).
The guidelines define “crime of violence” as:
[A]ny 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.
U.S.S.G. § 4B1.2(a). The application note to this provision sets
forth a further definitional gloss on the term “crime of violence.”
Application Note 1 provides:
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, 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.
Id. (internal quotation marks omitted).
4
With this commentary in mind, we now turn to consider the
crime at issue –- possession of a prohibited weapon, specifically
a sawed-off shotgun. To obtain a felony conviction for this crime,
the state had to prove that Serna “knowingly” possessed a sawed-off
shotgun.5 TEX. PENAL CODE § 46.05(a)(3). For this crime to
5
The Texas statute under which Serna was convicted provides,
in full:
(a) A person commits an offense if he intentionally or
knowingly possesses, manufactures, transports, repairs,
or sells:
(1) an explosive weapon;
(2) a machine gun;
(3) a short-barrel firearm;
(4) a firearm silencer;
(5) a switchblade knife;
(6) knuckles;
(7) armor-piercing ammunition;
(8) a chemical dispensing device; or
(9) a zip gun.
(b) It is a defense to prosecution under this section
that the actor’s conduct was incidental to the
performance of official duty by the armed forces or
national guard, a governmental law enforcement agency, or
a correctional facility.
(c) It is a defense to prosecution under this section
that the actor’s possession was pursuant to registration
pursuant to the National Firearms Act, as amended.
(d) It is an affirmative defense to prosecution under
this section that the actor's conduct:
(1) was incidental to dealing with a switchblade
knife, springblade knife, or short-barrel firearm
solely as an antique or curio; or
(2) was incidental to dealing with armor-piercing
ammunition solely for the purpose of making the
ammunition available to an organization, agency, or
institution listed in Subsection (b).
5
constitute a crime of violence under federal law, it must fall
within the “otherwise” clause of § 4B1.2(a)(2) and Application Note
1;6 that is, unlawful possession of a prohibited weapon must
“present[] a serious potential risk of physical injury to another.”
Id. In making this “risk” assessment, we take a categorical
approach. Such an approach examines the conduct as alleged in the
indictment and decides whether that conduct, by its nature, poses
a serious potential risk of physical injury. See United States v.
Charles, __ F.3d __, 2002 WL 1764147 (5th Cir. 2002)(en banc);
United States v. Fitzhugh, 954 F.2d 253, 254 (5th Cir. 1992);
U.S.S.G. § 4B1.2, app. n. 1. Under this approach, we do not
consider the underlying conduct of the crime charged unless it is
specifically referenced in the indictment. See United States v.
Ruiz, 180 F.3d 675, 676 (5th Cir. 1999) (holding that an escape from
prison was a crime of violence even though the defendant “simply
walked away . . . no physical barriers prevented the escape and no
guards were armed”).
(e) An offense under this section is a felony of the
third degree unless it is committed under Subsection
(a)(5) or (a)(6), in which event, it is a Class A
misdemeanor.
TEX. PENAL CODE § 46.05 (footnote omitted).
6
Clearly, possession of a prohibited weapon does not fall
within the other definitions of “crime of violence” contained in §§
4B1.2.(a)(1)&(2): The elements of the crime do not include “the
use, attempted use, or threatened use of physical force,” or
involve “burglary of a dwelling, arson, extortion, or the use of
explosives.” Id.
6
Serna’s state court indictment reads as follows:
...RUBEN SERNA, JR. hereinafter styled
Defendant, on or about the 21st day of July
A.D. 1992, and before the presentment of this
indictment, in Hidalgo County, Texas, did then
and there intentionally and knowingly possess
a prohibited weapon, to wit: a shotgun with a
barrel length of less than 18 inches...7
Thus, the question we face under our categorical approach is
whether the specific conduct alleged in the indictment by its
nature poses a serious potential risk of physical injury. In
answering this question, we are interpreting and applying federal
law, i.e., the sentencing guidelines, to a federal conviction. In
short, we are resolving a question of federal -- not state -- law.
The question of federal law presented is whether, under the
sentencing guidelines, “intentionally and knowingly possess[ing]
... a shotgun with a barrel length of less than 18 inches” in
violation of Texas law constitutes conduct which by its nature
presents a serious potential risk of physical injury to another.
At the outset we note that “possession”, though often passive,
constitutes “conduct”. Thus, the next step to consider is the
nature of that conduct. In this quest, we must consider the
character of the prohibited weapon: a sawed-off shotgun.
In enacting gun control legislation Congress expressed the
view that a short-barreled firearm, or sawed-off shotgun, when
7
We note that this count expressly identifies the type of
weapon which Serna was charged with possessing; and we confine this
opinion to the circumstances of possession of a “short barreled
firearm” under the Texas statute.
7
unlawfully possessed, is primarily used for violent purposes.
Under the National Firearms Act (“NFA”), the possessor of a sawed-
off shotgun must register the weapon with the federal government.
26 U.S.C. §§ 5841(a), 5845(a)&(e). The failure to register is a
violation of criminal law. 26 U.S.C. §§ 5861(d), 5871. In United
States v. Jennings, 195 F.3d 795 (5th Cir. 1999), cert. denied, 530
U.S. 1245 (2000), we held that “the primary reason that
unregistered possession of [a weapon listed in the NFA, i.e., a
sawed-off shotgun] is a crime is the virtual inevitability that
such possession will result in violence.” Id. at 799. The
legislative history of the NFA reinforces the view we articulated
in Jennings. Congress passed the NFA in response to gangster-style
violence after observing that “there is no reason why anyone except
a law officer should have a machine gun or a sawed-off shotgun.”
See H.Rep. No. 1780, at 1 (1934); accord United States v. Fortes,
141 F.3d 1, 6 (1st Cir. 1998)(explaining that under the NFA,
"[o]nly those firearms must be registered that Congress has found
to be inherently dangerous and generally lacking usefulness, except
for violent and criminal purposes”).
Furthermore, the Fourth, Seventh, Eighth, and Ninth Circuits
each have found that, because it is primarily used for violent
purposes, possession of a sawed-off shotgun presents a serious
potential risk of physical injury and therefore constitutes a
“crime of violence.” See United States v. Johnson, 246 F.3d 330,
334-35 (4th Cir.), cert. denied, __ U.S. __, 122 S.Ct. 191 (2001);
8
United States v. Brazeau, 237 F.3d 842, 845 (7th Cir. 2001); United
States v. Allegree, 175 F.3d 648, 651 (8th Cir. 1999) (finding that
sawed-off shotguns are “inherently dangerous and lack usefulness
except for violent and criminal purposes"); United States v. Hayes,
7 F.3d 144, 145 (9th Cir. 1993) (finding that “sawed-off shotguns
are inherently dangerous, lack usefulness except for violent and
criminal purposes and their possession involves the substantial
risk of improper physical force”). In addition, the First Circuit
has held that possession of a sawed-off shotgun is a “violent
felony” for the purpose of determining whether a maximum prison
term should be enhanced under the Armed Career Criminal Act (ACCA),
18 U.S.C. § 924(e)(1). See United States v. Fortes, 141 F.3d 1, 6-
7 (1st Cir. 1998). The ACCA employs identical language to define
“violent felony” as the sentencing guidelines use to define “crime
of violence.” Compare 18 U.S.C. § 924(e)(1) with U.S.S.G. §
4B1.2(a). Fortes thus provides persuasive authority that the First
Circuit would consider possession of a sawed-off shotgun a crime of
violence. In the light of the decisions of our sister circuits and
the findings of Congress, we are easily persuaded that a sawed-off
shotgun is a weapon for which the primary purpose of unlawful
possession is violence.
We thus conclude our analysis under the sentencing guidelines:
We have noted that possession is conduct; and we have determined
that use for violence is the primary purpose for a sawed-off
shotgun. It follows that violence is more likely than not to occur
9
from unlawful possession of a sawed-off shotgun. We therefore
conclude that the unlawful possession a sawed-off shotgun under the
Texas statute constitutes conduct that, by its nature, poses a
serious potential risk of physical injury to another and is
therefore a crime of violence under U.S.S.G. § 4B1.2(a). Serna’s
sentence is therefore proper and the judgment of the district court
is
AFFIRMED.
10