[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
------------------------------------------- U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-10753 May 4, 2006
Non-Argument Calendar THOMAS K. KAHN
-------------------------------------------- CLERK
D.C. Docket No. 04-00053-CR-RH-WCS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHARLES DAVID OWENS,
Defendant-Appellant.
----------------------------------------------------------------
Appeal from the United States District Court
for the Northern District of Florida
----------------------------------------------------------------
(May 4, 2006)
Before EDMONDSON, Chief Judge, ANDERSON and MARCUS, Circuit Judges.
PER CURIAM:
This case involves the question of whether possession of an unregistered
firearm is a crime of violence for purposes of enhancing a criminal sentence under
U.S.S.G. § 2K2.1(a)(4)(A).
Defendant-Appellant Charles David Owens appeals the 42 month sentence
imposed upon his conviction for possession of firearms after having been
convicted of a felony, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The
district court enhanced Defendant’s sentence under U.S.S.G. § 2K2.1(a)(4)(A)
after determining that Defendant’s prior conviction for possession of an
unregistered firearm, in violation of 26 U.S.C. § 5861(d), constituted a “crime of
violence.” Defendant appeals this sentencing enhancement. No reversible error
has been shown; we affirm.
Defendant was convicted in 1995 of possession of an unregistered rifle with
a seven-inch barrel in violation of the National Firearms Act (NFA), 26 U.S.C. §
5861(d). The facts surrounding that conviction are set out in this court’s opinion
affirming Defendant’s 1995 conviction. United States v. Owens, 103 F.3d 953
(11th Cir. 1997). Briefly stated, Defendant’s possession was in the context of his
part-time employment at a consignment shop. Defendant offered to sell an
2
undercover ATF agent an unregistered Uzi carbine with, among other things, two
barrels, one of which was seven inches.1
In 2004, Defendant was indicted for the instant offense of possessing
firearms after having been convicted of a felony, in violation of 18 U.S.C. §§
922(g)(1) and 924(a)(2). Under the sentencing guidelines, U.S.S.G. §
2K2.1(a)(4)(A) provides a base offense level of 20 for firearms possession by a
convicted felon if the prior felony was for a “crime of violence;” otherwise,
U.S.S.G. § 2K2.1(a)(6) provides a base offense level of 14. Concluding that
Defendant’s 1995 NFA conviction for possession of an unregistered firearm
constituted a “crime of violence” under section 2K2.1(a)(4), the sentencing court
set Defendant’s base offense level at 20. Defendant objected to treatment of his
NFA offense as a crime of violence.
We review de novo the district court’s interpretation and application of the
Sentencing Guidelines and review the underlying factual findings for clear error.
United States v. Hasner, 340 F.3d 1261, 1276 (11th Cir. 2003). The commentary to
section 2K2.1 defines the term “crime of violence” by reference to U.S.S.G. §
4B1.2(a). U.S.S.G. § 4B1.2(a)(2) includes within the term “crime of violence”
1
The NFA includes within its definition of firearms a rifle having a barrel of less than 16 inches.
26 U.S.C. § 5845(a)(3).
3
certain named offenses and unspecified offenses that “otherwise involve[] conduct
that presents a serious potential risk of physical injury to another.”2
No binding precedent in this Circuit has determined that possession of an
unregistered firearm is a crime of violence for purposes of applying the section
2K2.1 enhancement. See United States v. Miles, 290 F.3d 1341, 1348 n. 4 (11th
Cir. 2002). But as we observed in Miles, id., other courts have concluded that a
section 5861 conviction qualifies as a crime of violence for sentence enhancement
purposes. See United States v. Dwyer, 245 F.3d 1168, 1172 (10th Cir. 2001) (prior
conviction for possession of unregistered firearm in violation of NFA is crime of
violence as defined by section 4B1.2); United States v. Rivas-Palacios, 244 F.3d
396, 397-98 (5th Cir. 2001) (prior conviction for possession of an unregistered
firearm is a crime of violence as defined in 18 U.S.C. § 16); United States v.
Dunn, 946 F.2d 615, 621 (9th Cir. 1991) (possession of an unregistered firearm in
violation of the NFA is crime of violence under 18 U.S.C. § 16); United States v.
Johnson, 246 F.3d 330, 334-35 (4th Cir. 2001) (prior conviction for possession of
sawed-off shotgun is crime of violence for purposes of career offender
2
Since Defendant’s 1995 conviction, Application Note 1 to U.S.S.G. § 4B1.2 was amended to
exclude from the definition of “crime of violence” unlawful possession of a firearm by a felon unless
the possession was of an unregistered firearm under the NFA. The 2004 amendment provided
expressly that “[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) is a ‘crime of violence.’” U.S.S.G.
Appendix C, amendment 674.
4
enhancement); United States v. Brazeau, 237 F.3d 842, 845 (7th Cir. 2001) (prior
conviction for possession of sawed-off shotgun is crime of violence under section
4B1.2); United States v. Allegree, 175 F.3d 648, 651 (8th Cir. 1999) (same);
United States v. Fortes, 141 F.3d 1, 8 (1st Cir. 1998)(prior conviction for NFA
offense qualified as a violent felony for purposes of career offender enhancement).
Congress determined that the unregistered possession of the particular
firearms regulated under the NFA should be outlawed because of “the virtual
inevitability that such possession will result in violence.” United States v.
Jennings, 195 F.3d 795, 799 (5th Cir. 1999). We agree with our sister circuits that
the possession of certain kinds of weapons categorically presents the potential risk
of physical injury warranting sentence enhancement for being a crime of violence.3
Defendant argues that even if an NFA offense is deemed a crime of
violence, possession of an unregistered firearm can support no more than a
rebuttable presumption of violence for purposes of applying the sentence
enhancement. According to Defendant, the sentencing court should be allowed to
3
We have concluded that possession of a concealed weapon constitutes a crime of violence as
defined by section 4B1.2(a)(2) for purposes of applying a career offender enhancement. United
States v. Gilbert, 138 F.3d 1371, 1372 (11th Cir. 1998). The concealment offense -- like the
possession of an unregistered weapon offense -- includes no use of force element. The possession
of a concealed weapon and the possession of an unregistered weapon each constitutes conduct
beyond mere possession of a weapon and each poses “a serious potential risk of physical injury to
another.” U.S.S.G. § 4B1.2(a)(2).
5
consider evidence that a particular defendant’s possession was not dangerous.
Citing United States v. Spell, 44 F.3d 936 (11th Cir. 1995), Defendant alternatively
argues that, even if the circumstances of the predicate conviction may not be
considered generally, the sentencing court should at least look to the charging
documents to determine if the description of the defendant’s acts charged in the
indictment sets out a crime of violence.
The elements of Defendant’s prior conviction -- the possession of an
unregistered weapon with knowledge of the properties that bring the weapon
within section 5845's definition of firearm -- satisfy the sentencing court’s
enhancement inquiry. Defendant misreads Spell when he argues that Spell allows
the sentencing court to look behind the fact of conviction when conducting its
section 4B1.2 crime-of-violence inquiry. Spell provided that a “district court only
may inquire into the conduct surrounding a conviction if ambiguities in the
judgment make the crime of violence determination impossible from the fact of the
judgment itself.” Id. at 939. As we have said, the Spell exception to a categorical
approach is narrow and limited: a district court may inquire into additional facts
only if the judgment of conviction is ambiguous on its face. United States v.
Gibson, 434 F.3d 1234, 1248 (11th Cir. 2006). Defendant points to no ambiguity
in his judgment of conviction; Spell’s limited exception has no application here.
6
Defendant’s last argument is that the sentencing court misapprehended its
authority post-Booker, United States v. Booker, 125 S.Ct. 738 (2005), to impose a
sentence below the guidelines range. A fair reading of the record shows that the
sentencing court appreciated fully its authority to impose a sentence outside the
guidelines; it exercised its discretion not to do so.
AFFIRMED.
7