United States v. Henry

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
July 18, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk

No. 04-10750
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GORDON GRADY HENRY,

Defendant-Appellant.

* * * * *
Consolidated with
No. 04-11085
* * * * *

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

HECTOR CARDONA,

Defendant-Appellant.

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Appeals from the United States District Court
for the Northern District of Texas
USDC No. 1:03-CR-88-ALL-C
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Before DAVIS, SMITH and DeMOSS, Circuit Judges.

PER CURIAM:

Gordon Grady Henry pleaded guilty to possession of an

unregistered firearm. In his plea documents he admitted

possessing a 12-gauge sawed-off shotgun. Hector Cardona pleaded
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guilty to being a felon in possession of a firearm. In his plea

documents he admitted to possessing a 16-gauge sawed-off shotgun.

Both defendants’ sentences were increased because the court

determined that the sawed-off shotguns were “destructive devices”

under U.S.S.G. § 2K2.1(b)(3) of the applicable 2003 edition of

the sentencing guidelines.

In these consolidated appeals, Henry and Cardona challenge

their sentence increases and contend that a sawed-off shotgun is

not a “destructive device.” Henry also challenges the sentencing

court’s application of the federal sentencing guidelines in light

of United States v. Booker, 125 S. Ct. 738 (2005)

Even after Booker, this court reviews de novo the

interpretation and application of the federal sentencing

guidelines. United States v. Villegas, 404 F.3d 355, 359 (5th

Cir. 2005). The applicable guidelines, commentary, and statutes

define “destructive device” to include “any type of weapon which

will, or which may be readily converted to, expel a projectile by

the action of an explosive or other propellant, and which has any

barrel with a bore of more than one-half inch in diameter.”

U.S.S.G. § 2K2.1, comment. (n.4) (Nov. 2003); see also 26 U.S.C.

§ 5845(f)(2) (adding the qualifier, “except a shotgun or

shotgun shell . . . generally recognized as particularly suitable

for sporting purposes”). Thus, a sawed-off shotgun with a barrel

diameter of more than one-half inch meets the definition of

“destructive device” set forth in the guideline commentary. See
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United States v. Wynn, 365 F.3d 546, 552 (6th Cir. 2004) (holding

same), vacated on other grounds and remanded for reconsideration

in light of Booker, 125 S. Ct. 1026 (2005).

Henry and Cardona assert that there is no evidence to

establish the bore diameters of the guns they possessed.

However, their factual resumes, which they signed and which they

affirmed in open court, contain admissions that Henry possessed a

12-gauge shotgun and that Cardona possessed a 16-gauge shotgun.

We take judicial notice that both a 12-gauge shotgun and a 16-

gauge shotgun have bore diameters in excess of one-half inch.

See People v. Cortez, 442 N.Y.S.2d 873, 874 (N.Y.Sup. 1981) (“A

10-gauge shotgun has a bore of .775 of an inch; 12-gauge .725;

16-gauge .665. . . .”); see also FED. R. EVID. 201 (b), (c), and

(f); WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE 940

(1971). Consequently, the sawed-off shotguns possessed by the

defendants each meet the guideline definition of “destructive

device” because each weapon can “expel a projectile by the action

of an explosive or other propellant, and . . . has any barrel

with a bore of more than one-half inch in diameter.” U.S.S.G.

§ 2K2.1, comment. (n.4) (Nov. 2003). Neither appellant argues

that a sawed-off shotgun “is generally recognized as particularly

suitable for sporting purposes” under § 5845(f)(2), and this

court has concluded that a sawed-off shotgun, when possessed

unlawfully, is useful only for “violent and criminal purposes.”
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United States v. Serna, 309 F.3d 859, 863-64 (5th Cir. 2002)

(internal quotation marks and citations omitted).

In addition, the guidelines allow the same weapon both to

provide the foundation for the base offense level and to support

a two-level increase, if the weapon is a “destructive device.”

See U.S.S.G. § 2K2.1, comment. (n.11) (Nov. 2003). This is

because destructive devices “pose a considerably greater risk to

the public welfare than other National Firearms Act weapons.”

Id. A straightforward application of the guidelines and 26

U.S.C. § 5845 shows that the appellants’ claims warrant no

reversal of their sentences.

Henry contends that the application of the sentencing

guidelines violated his right to trial by jury as recognized by

Blakely v. Washington, 124 S. Ct. 2531 (2004) and Booker. Henry

did not raise his Blakely/Booker claim in the district court.

Accordingly, it is reviewed only for “plain error.” United

States v. Valenzuela-Quevedo, 407 F.3d 728, 732 (5th Cir. 2005)

(citing United States v. Mares, 402 F.3d 511, 513-14 (5th Cir.

2005)). Under the plain-error standard, this court may reverse

only if the appellant demonstrates “(1) error, (2) that is plain,

and (3) that affects substantial rights.” Id. at 732-33

(citation and internal quotation marks omitted). If these three

conditions are met, this court has the discretion to correct the

error, “but only if (4) the error seriously affects the fairness,
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integrity, or public reputation of judicial proceedings.” Id. at

733 (citation and internal quotations marks omitted).

The destructive-device increase was based on facts admitted

by Henry in his factual resume and in open court. Therefore the

Sixth Amendment right to a jury trial is not implicated. See

Valenzuela-Quevedo, 407 F.3d at 733. Nonetheless, by sentencing

Henry under a mandatory guidelines scheme, the district court

committed an error that was “plain.” Id. (citing Booker, 125

S. Ct. at 769). To show a violation of his substantial rights,

Henry must also show that “that the district judge would have

imposed a different sentence” if sentencing Henry under the post-

Booker advisory guidelines scheme. Id.; Mares, 402 F.3d at 521-

22.

Henry does not demonstrate that his sentence likely would

have been different under an advisory application of the

guidelines. On the contrary, he concedes that the court might

impose the same sentence. Further, the district court denied a

motion for a downward departure, sentenced Henry in the middle of

the guidelines range, and stated: “I believe the sentence does

adequately address the sentencing objectives of punishment and

deterrence.” Consequently, Henry has not shown that the

sentencing error affected his substantial rights.

The judgment of the district court is

AFFIRMED.