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Possession of a shotgun qualifies as a crime of violence under the sentencing guidelines

In U.S. v. Hall, the defendant pled guilty to the charge of possession of a handgun by a convicted felon. The district court enhanced his sentence after the court determined that a prior felony conviction for possession of an unregistered shotgun qualified as a crime of violence under the sentencing guidelines. The guidelines require an enhancement for a defendant who commits any part of the offense subsequent to sustaining one felony conviction of a crime of violence. The guidelines commentary states that the unlawful possession a firearm, such as a sawed off shotgun as described in Title 26 U.S.C. § 5845, is a crime of violence and inherently dangerous when possessed unlawfully.

Citing the Supreme Court’s decision in Stinson v United States, the 11th Circuit affirmed that a commentary in the sentencing guidelines manual which interprets or explains a guideline is authoritative, unless it violates the constitution, a federal statute, or is inconsistent with or a plainly erroneous reading of that guideline.

The sentencing guidelines defines a crime of violence as follows: an offense that has as an element the use, threatened use, or attempted use of violence or physical force; a burglary of a dwelling, arson, or extortion, involves the use of explosives; or otherwise involves conduct that presents a serious risk of physical injury to another. The court in recent precedent has elaborated on this “crime of violence” definition. An offence can be a crime of violence if it fits into one of three categories. The first is referred to the elements clause crimes, the second category includes the enumerated crimes of burlary of a dwelling, arson, etc. The third category is the “residual clause”, included those crimes that “otherwise involve conduct that presents a serious potential risk of physical injury to another.”

In deciding whether an offense qualifies as a crime of violence under the “residual clause,” the 11th Circuit employs a three-step “categorical” approach established by the Supreme Court in Taylor v. United States. First, the court examines the offense in terms of how the law defines the offense, not how a defendant might have committed it. Second, the court determines whether the generic definition of the offense involves conduct that presents a serious risk of physical injury to another. Third, if the offense does present a risk of injury, it is classified as a crime of violence only if it is roughly similar in kind and degree to the risk posed by the enumerated crimes listed in the residual clause. Those crimes are: burglary of a dwelling, arson, extortion, and the unlawful use of explosives. The 11th circuit rejected the defendant’s argument that under United States v. Booker the guidelines commentary was not authoritative.

The 11th circuit found that the Supreme Court’s decision in Stinson makes the commentary binding. Though the court would normally apply the categorical approach to determine whether an offense qualifies as a crime of violence, the court is bound by the explicit statement in the guidelines commentary, which states that the unlawful possession of a firearm described in § 5845 is a crime of violence.