Filed: Feb. 04, 2009
Latest Update: Mar. 02, 2020
Summary: RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 File Name: 09a0034p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _ X Plaintiff-Appellee, - UNITED STATES OF AMERICA, - - - No. 08-5138 v. , > - Defendant-Appellant. - MALIK SHABAZZ HAWKINS, - N Appeal from the United States District Court for the Eastern District of Kentucky at Lexington. No. 07-00073-001—Joseph M. Hood, District Judge. Submitted: January 15, 2009 Decided and Filed: February 4, 2009 Before: KENNE
Summary: RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 File Name: 09a0034p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _ X Plaintiff-Appellee, - UNITED STATES OF AMERICA, - - - No. 08-5138 v. , > - Defendant-Appellant. - MALIK SHABAZZ HAWKINS, - N Appeal from the United States District Court for the Eastern District of Kentucky at Lexington. No. 07-00073-001—Joseph M. Hood, District Judge. Submitted: January 15, 2009 Decided and Filed: February 4, 2009 Before: KENNED..
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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 09a0034p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
-
-
-
No. 08-5138
v.
,
>
-
Defendant-Appellant. -
MALIK SHABAZZ HAWKINS,
-
N
Appeal from the United States District Court
for the Eastern District of Kentucky at Lexington.
No. 07-00073-001—Joseph M. Hood, District Judge.
Submitted: January 15, 2009
Decided and Filed: February 4, 2009
Before: KENNEDY, COLE, and GILMAN, Circuit Judges
_________________
COUNSEL
ON BRIEF: Patrick F. Nash, LAW OFFICES, Lexington, Kentucky, for Appellant.
Charles P. Wisdom, Jr., Hydee R. Hawkins, ASSISTANT UNITED STATES
ATTORNEYS, Lexington, Kentucky, for Appellee.
_________________
OPINION
_________________
KENNEDY, Circuit Judge. On May 3, 2007, a grand jury issued an indictment
alleging that defendant Hawkins had conspired to distribute and had distributed quantities
of powder and crack cocaine. At the time of the indictment, Hawkins had two prior felony
convictions, one of which was for possession of an unregistered firearm. Hawkins entered
a plea agreement, pleading guilty to conspiring to distribute cocaine base in violation of 21
U.S.C. § 846 and reserving the right to appeal the court's potential classification of him as
a career offender under U.S.S.G. § 4B1.1. Prior to sentencing, he filed an objection in which
he argued that his conviction for possession of an unregistered firearm was not a “crime of
1
No. 08-5138 United States v. Hawkins Page 2
violence” within U.S.S.G. § 4B1.1. J.A. at 67. Relying on the commentary to U.S.S.G.
§ 4B1.2 and rulings from our sister circuits, the district court overruled Hawkins’ objection
and applied the career offender enhancement, sentencing Hawkins to two hundred sixty-two
(262) months of imprisonment. Hawkins timely appealed the career offender enhancement.
ANALYSIS
Under the United States Sentencing Guidelines, a defendant is a “career offender”
if:
(1) the defendant was at least eighteen years old at the time the defendant
committed the instant offense of conviction; (2) the instant offense of
conviction is a felony that is either a crime of violence or a controlled
substance offense; and (3) the defendant has at least two prior felony
convictions of either a crime of violence or a controlled substance offense.
U.S.S.G. § 4B1.1(a). The Guidelines define “crime of violence” as
any 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). We review de novo a district court’s determination that an offense
constitutes a “crime of violence” under the Guidelines. United States v. Hargrove, 416 F.3d
486, 494 (6th Cir. 2005) (citation omitted).
Defendant bases his objection to being sentenced as a career offender on our court’s
ruling in United States v. Amos, in which we held that the possession of a sawed-off shotgun
under the Armed Career Criminals Act (ACCA) did not amount to a “violent felony.” 501
F.3d 524 (6th Cir. 2007). He argues that because both the Guidelines enhancement at issue
here and ACCA provision addressed in Amos include the phrase “conduct that presents a
serious potential risk of physical injury to another,” the two provisions should be construed
in an identical manner. The similarly worded ACCA provides for an increased sentence for
a defendant convicted under 18 U.S.C. § 922(g), the felon in possession statute, if the
defendant has three prior convictions for “violent felon[ies]” or “serious drug offense[s].”
Under the ACCA, a “violent felony” is defined as
No. 08-5138 United States v. Hawkins Page 3
any crime punishable by imprisonment for a term exceeding one year, or any
act of juvenile delinquency involving the use or carrying of a firearm, knife,
or destructive device that would be punishable by imprisonment for such
term if committed by an adult, that--
(i) has as an element the use, attempted use, or threatened use of physical
force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise
involves conduct that presents a serious potential risk of physical injury to
another;
18 U.S.C. § 924(e)(2)(B). In Amos, we held that possession of a sawed-off shotgun did not
fall within this definition because “possession of a sawed-off shotgun is not one of the
specifically named offenses (burglary, arson, or extortion) and does not involve the use of
explosives or the threat of physical force against another person.” Amos, 501 F.3d at 526.
Additionally, following United States v. Doe,
960 F.2d 221, 224-25 (1st Cir. 1992), we
reasoned that “possession does not fit well with the more active crimes included in the
statute.”
Amos, 501 F.3d at 528.
Unlike the provision found in the ACCA, the career offender enhancement at issue
here, through its Application Notes, specifically defines the term “crime of violence” to
include unlawful possession of a sawed-off shotgun. U.S.S.G.§ 4B1.2, cmt n.1 (2007)
(“Unlawfully 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.’”) We
stated in Amos that, “if Congress had wanted the ACCA to cover offenses for possession of
firearms as predicate offenses, it could easily have done so explicitly (i.e., the definition of
violent felony could have included ‘possession of a firearm in violation of state or federal
law’).” 501 F.3d at 530. In its Application Notes to U.S.S.G. § 4B1.2, the Sentencing
1
Commission has done just that.
Further, the Application Notes to the Guidelines clearly evidence the Sentencing
Commission’s intent to distinguish this provision from that of the ACCA. The
commentary to § 4B1.4 specifically states that “the definitions of ‘violent felony’ and
1
We note that this commentary was submitted to Congress before becoming effective. Rule 4.1
of the United States Sentencing Commission Rules of Practice and Procedure states, “[T]he Commission
shall endeavor to include amendments to policy statements and commentary in any submission of guideline
amendments to Congress and put them into effect on the same November 1 date as any guideline
amendments issued in the same year.” U.S. SENTENCING COMMISSION R. PRAC. P. 4.2.
No. 08-5138 United States v. Hawkins Page 4
‘serious drug offense’ in 18 U.S.C. § 924(c)(2) are not identical to the definitions of
‘crime of violence’ and ‘controlled substance offense’ used in § 4B1.1.” U.S.S.G.
§ 4B1.4, cmt n.1 (2004). As the district court correctly concluded, “the guidelines are
different than the armed career criminal act that Judge Martin was concerned with in his
Amos decision.”
The district court relied on the language of the Guideline commentary to
distinguish the career offender enhancement at issue here from the ACCA’s similar
provision. The Supreme Court has made clear that Guidelines commentary “that
interprets or explains a guideline is authoritative unless it violates the Constitution or a
federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.”
Stinson v. United States, 508 U.S. 36, 38 (1993). Here our task is therefore not to
independently interpret the language of U.S.S.G. § 4B1.1(a) defining a “crime of
violence.” Our review is instead limited to the question of whether the Sentencing
Commissions’s own interpretation of the Guideline in its official note is a “plainly
erroneous reading.” See Stinson,
508 U.S. 37-38.
The Commission’s interpretation of a “crime of violence” cannot be “plainly
erroneous” in light of the fact that the decisions of several sister circuits have read the
language of the Guideline in the same way. Ruling that possession of a sawed-off
shotgun constitutes a “crime of violence” within the meaning of U.S.S.G. § 4B1.2 would
be consistent with the interpretation of that provision by our sister circuits. Though our
circuit’s decision in Amos involved a similarly worded provision, and that decision is
binding on us, we have yet to address the specific Guideline provision at issue in the
instant case. See U.S. SENTENCING GUIDELINES MANUAL § 4B1.2, cmt. n.1 (2007).
Other circuits, however, have specifically addressed the Guideline provision. As both
the majority and dissenting opinions in Amos pointed out, the Fourth, Fifth, Seventh,
Eighth, Ninth, and Eleventh circuits have concluded that possession of a sawed-off
shotgun constitutes a “crime of violence” under the Guidelines. Amos, 501 F.3d at 527,
532. In United States v. Serna, the Fifth Circuit held that “the unlawful possession a
sawed-off shotgun under the Texas statute constitutes conduct that, by its nature, poses
No. 08-5138 United States v. Hawkins Page 5
a serious potential risk of physical injury to another and is therefore a crime of violence.”
309 F.3d 859, 864 (5th Cir. 2002). In United States v. Brazeau, the Seventh Circuit
reached the same conclusion, reasoning that “the fact that sawed-off shotguns must be
registered confirms our conclusion that such weapons are inherently dangerous, and the
possession of such a weapon constitutes a crime of violence.”
237 F.3d 842, 845 (7th
Cir. 2001). The Ninth Circuit reached the same result in United States v. Hayes, stating
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.”
7 F.3d 144, 145 (9th Cir. 1993). In United States v. Owen, the Eleventh Circuit
case relied on by the district court, the Court noted the Guidelines’ expanded definition
of “crime of violence” and held that a defendant’s possession of a sawed-off rifle was
a “crime of violence” within the career offender provision of the Guidelines.
447 F.3d
1345, 1346-47 (11th Cir. 2006). The same conclusion was reached by the Fourth Circuit
in United States v. Johnson,
246 F.3d 330, 334-35 (4th Cir. 2001), and the Eighth
Circuit in United States v. Allegree,
175 F.3d 648, 651 (8th Cir. 1999).
The Sentencing Commission’s own interpretation of the Guideline provision is
not “clearly erroneous” in that it is clearly consistent with the interpretation of that
specific provision by other circuits. Based on the language of the Guidelines, and as
directed by the commentary, the possession of a sawed-off shotgun constitutes a “crime
of violence” under U.S.S.G. § 4B1.2 and thus qualifies as a predicate offense under the
career offender enhancement found in U.S.S.G. § 4B1.1.
CONCLUSION
For the foregoing reasons, the judgment of the district court is AFFIRMED.
