In the

United States Court of Appeals
              For the Seventh Circuit

No. 11-3788

U NITED S TATES OF A MERICA,
                                              Plaintiff-Appellee,
                               v.

C ARL T. M ILLER,
                                          Defendant-Appellant.


            Appeal from the United States District Court
                for the Eastern District of Wisconsin.
        No. 2:11-cr-00023-RTR-1—Rudolph T. Randa, Judge.



        A RGUED M AY 29, 2012—D ECIDED JUNE 27, 2013




  Before W OOD , S YKES, and T INDER, Circuit Judges.
  T INDER, Circuit Judge. When Carl T. Miller pleaded guilty
to being a felon in possession of a firearm in 2011, the
government contended that three of his prior convic-
tions qualified as “violent felonies” requiring a man-
datory minimum 15-year sentence under the Armed
Career Criminal Act (ACCA). See 18 U.S.C. § 924(e)(1).
Miller did not dispute that his two burglary convictions
qualified as violent felonies but he objected to the third
2                                                   No. 11-3788

prior offense—possession of a short-barreled shotgun
in violation of Wisconsin law. The objection required
the district court to construe the meaning of ACCA’s
“residual clause.” 1 The district court denied the objec-
tion because our decision in United States v. Upton held
that an indistinguishable Illinois offense qualified as an
ACCA residual clause violent felony. 

, 404
(7th Cir. 2008). Miller argues that post-Upton Supreme
Court decisions construing the residual clause require a
different result. We agree that although ACCA remains
unchanged since Upton, if nothing else, the approach
for evaluating prior convictions under ACCA’s residual
clause has changed. See United States v. Jones, 

,
699 (7th Cir. 2012) (ACCA’s “residual clause has eluded
stable construction”), cert. denied, 

(2013).
Accordingly, whether the mere possession of a short-
barreled shotgun qualifies as a violent felony under
ACCA deserves careful reconsideration, and in doing
so, we find that Miller is correct; mere possession of a



1
    The relevant portion of ACCA defines “violent felony” as:
      any crime punishable by imprisonment for a term
      exceeding one year . . . that—
          ...
          (ii) is burglary, arson, or extortion, involves
          use of explosives, or otherwise involves con-
          duct that presents a serious potential risk of
          physical injury to another . . . .
18 U.S.C. § 924(e)(2)(B) (emphasis supplied to what will be
referred to throughout this opinion as the “residual clause”).
No. 11-3788                                                       3

short-barreled shotgun is not a violent felony for pur-
poses of ACCA.
  Miller and the government agree that in order for his
conviction for possession of a short-barreled shotgun in
violation of Wisconsin Statute § 941.28(2) to qualify as
an ACCA violent felony, it must do so under the
residual clause. To determine whether a conviction fits
within the residual clause, we apply a categorical
approach by examining the offense’s statutory elements
as opposed to a defendant’s actual conduct. See United
States v. Fife, 

, 445 (7th Cir. 2010). The
relevant text of the statute reads: “No person may . . .
possess . . . a short-barreled shotgun or short-barreled
rifle.” Wis. Stat. § 941.28(2).2 We review de novo, see

, and consider the offense as it ordi-
narily is committed, not trying to imagine whether in
some unusual situations it could be committed in ways
that pose more, or less, serious potential for risk of
injury to another, see James v. United States, 

, 207-09 (2007).



2
    The full text reads:
      No person may sell or offer to sell, transport, purchase,
      possess or go armed with a short-barreled shotgun or
      short-barreled rifle.
Wis. Stat. § 941.28(2). Although the law can be violated in
several ways, some of which may pose more potential risk
of injury than others, the parties agree that Miller’s convic-
tion was for simple possession of a short-barreled shotgun,
so we do not need to address divisibility. See 

-46.
4                                               No. 11-3788

  The Supreme Court has addressed the residual clause
four times in a recent five-year period.3 Perhaps no
single statutory clause has ever received more frequent
Supreme Court attention in such a short period of time
or such a proliferation of lower court reaction. Although
Congress has done nothing to add clarity to ACCA’s
residual clause, cases decided after Upton direct us to a
different understanding of how to apply the residual
clause.
  We start with Begay v. United States, decided a
few months after Upton, in which the Court considered
whether driving under the influence of alcohol (DUI)
was a violent felony under the residual clause. 

, 141 (2008). The Court found that the listed ex-
amples, “burglary, arson, extortion, or crimes involving
the use of explosives,” illustrated the types of crimes
that fell within the law’s scope and indicated “that the
statute covers only similar crimes, rather than every
crime that ‘presents a serious potential risk of phys-
ical injury to another.’ ” 

(quoting 18 U.S.C.
§ 924(e)(2)(B)(ii)). The Court reasoned that the enumer-
ated crimes limited residual clause offenses to those
“that are roughly similar, in kind as well as in degree
of risk posed, to the examples themselves.” 

And DUI differed from burglary, arson, extortion, and
crimes involving the use of explosives in one pertinent
and important respect: the absence of “purposeful,
violent, and aggressive conduct.” 

DUI com-



3
  A concise synopsis of the Court’s recent treatments of
the residual clause is found at 

, n.1.
No. 11-3788                                                 5

pared closely to crimes imposing strict liability (or
perhaps those involving negligence or recklessness),
whereas the listed crimes revealed “a degree of
callousness toward risk” and “an increased likelihood
that the offender is the kind of person who might delib-
erately point the gun and pull the trigger.” 

In
the end, the Court concluded that DUI was so “unlike
the provision’s listed examples” that Congress could
not have intended the residual clause to cover it. 

.
  Upon the issuance of Begay, we began to understand
residual-clause crimes to be those that “(1) present a
serious potential risk of physical injury similar in degree
to the enumerated crimes of burglary, arson, extortion,
or crimes involving the use of explosives; and (2) involve
the same or similar kind of ‘purposeful, violent, and
aggressive’ conduct as the enumerated crimes.” 

(quoting United States v. Dismuke, 

, 591 (7th Cir. 2010)).
  But shortly thereafter, Sykes v. United States deemed
Begay’s “purposeful, violent, and aggressive” language
to be redundant of the risk inquiry required by the
residual clause, concluding that these adjectives served
merely as a useful way to explain that the crime in
Begay was akin to strict liability, negligence, and reck-
lessness crimes. See 

, 2275-76 (2011).
Instead, the predicate conviction’s level of risk gen-
erally serves as the dispositive factor, 

but
the enumerated crimes—burglary, extortion, arson, and
crimes involving use of explosives—still “provide
guidance in” determining whether an offense presents a
serious risk of physical injury to another, 

The
6                                               No. 11-3788

Court then determined that Indiana’s prohibition on
flight from an officer by vehicle fit within the residual
clause because the inherent nature of the offense
includes an indifference to the safety of property and
persons; one “who takes flight and creates a risk of [a
potentially violent and even lethal] dimension takes
action similar in degree of danger to that involved
in arson, which also entails intentional release of a de-
structive force dangerous to others.” 

dan-
gerous because it can end in confrontation leading
to violence,” which was true “but to an even greater
degree” with fleeing police by vehicle. 

part

). As it did in Chambers v. United
States, 

, 129 (2009), decided a year after
Begay, the Court in Sykes also considered statistical data
(although noting that such data is not dispositive), ulti-
mately concluding that the risks posed by fleeing
police by vehicle may exceed those of burglary and

.
  So, following Sykes, the question for us in this
case is whether the risk posed by the possession of a
short-barreled shotgun constitutes a serious risk of
injury to another, using the offenses enumerated in
§ 924(e)(2)(B)(ii) as guides to evaluate the nature and
degree of that risk. See 

. The con-
cerns discussed in Begay—that the crime be “purposeful,
violent, and aggressive”—are not present here because,
as explained in Sykes, those terms simply explained why
a crime akin to strict liability, negligence, or reck-
lessness crimes does not fit within the residual clause.
But criminal possession requires knowledge in Wis-
No. 11-3788                                                7

consin, State v. Christel, 

, 809 (Wis. 1973),
disapproved of on other grounds in State v. Poellinger, 

, 757 & n.5 (Wis. 1990); see also Doscher v.
State, 

, 360 (Wis. 1927) (finding contraband
on premises not enough to warrant conviction without
showing “conscious possession”); Schwartz v. State, 

, 665 (Wis. 1927) (“Possession signifies some
right of dominion or control over the thing possessed.”),
so that distinguishes this case from Begay, and explains
why we don’t have to go through Begay’s “purposeful,
violent, and aggressive” analysis, see 

.
  We therefore turn to the risk analysis as directed by
Sykes and ask whether a violation of Wisconsin’s short-
barreled shotgun possession prohibition, in the ordinary
case, presents a serious potential risk of physical injury
as guided by the types and degrees of risks presented
by the enumerated crimes—burglary, arson, extortion,
and crimes involving the use of explosives. 

A
short-barreled shotgun can be possessed in a variety of cir-
cumstances, ranging from a situation which is patently
violent, for example, when one is used in the course of
a robbery, to those in which violence is at best latent, such
as when a short-barreled shotgun is hidden away at a
home, perhaps even unloaded or disassembled. Wisconsin
also recognizes the concept of joint and constructive
possession. E.g., State v. Mercer, 

, 131 (Wis.
App. 2010) (citing Schmidt v. State, 

, 208
(Wis. 1977)). But what is the ordinary case of mere posses-
sion? We know that we are not simply to imagine the
ways in which the statute can be violated with minimal
8                                                 No. 11-3788

risk of physical injury to others. See 

.
Nor are we to hypothesize dangerous ways in which
violations could occur. See United States v. Hampton, 

, 731 (7th Cir. 2012); United States v. Sonnenberg, 

, 365-66 (7th Cir. 2010). Instead, we are to focus on
the “generic crime as ordinarily committed—that is,
whether most instances of the crime present the required
degree of risk.” 

(citing 

).
  As noted, in some cases, consideration has been given
to statistical data which demonstrates the crime’s risk
of violence. For example, as explained in Sykes, the poten-
tial collateral consequences of vehicular flight from an
officer placed the risk of harm to other persons above
two of the enumerated offenses: for every 100 burglaries,
there were 3.2 injuries, and for every 100 arsons, there
were 3.3 

. And for every
100 police pursuits, there were just over 4 injuries. 

But in this case, the government pointed to no
such data, either in the trial court or on appeal, and our
function on appellate review is not to create a record.
  Looking at the reported Wisconsin decisions, short-
barreled shotgun cases often involve a passive posses-
sion in which the weapon is not exposed to others. See
State v. Murdock, 

, 620 (Wis. 1990) (closed
pantry drawers), overruled on other grounds by State v.
Dearborn, 

, 105 (Wis. 2010); State v. Garrett,

, 617 (Wis. Ct. App. 2001) (closet); State
v. Stankus, 

, 470-71 (Wis. Ct. App. 1998)
(locked in truck of a car); State v. Rardon, 518 N.W.2d
No. 11-3788                                             9

330, 332 (Wis. Ct. App. 1994) (disassembled); State
v. Johnson, 

, 112 (Wis. Ct. App. 1992)
(missing firing pin). In these cases, the firearm poses
no immediate risk to anyone but can still serve as a
factual basis for a conviction. The range of conduct which
could constitute knowing possession of a short-barreled
shotgun can vary on a scale of risk of danger to others,
but the mere possession of a weapon doesn’t have
to involve any risk. For example, brandishing the
weapon, loading it, or actually pulling the trigger are
all highly dangerous activities. But those separate
actions go beyond the mere possession of the weapon.
Something as simple as stuffing a short-barreled shot-
gun (regardless of whether loaded or even assembled)
under a mattress, a relatively passive and not inherently
violent act, is all it takes to violate Wisconsin’s law
against possessing short-barreled shotguns.
  This leads us to conclude that the risk of physical
injury to another presented by the mere possession of a
short-barreled shotgun is not in the same league as the
risks presented by the offenses of burglary, arson, ex-
tortion, or crimes involving the use of explosives. One
can imagine scenarios in which the mere possession of
such a weapon poses a risk of harm to others, e.g., if
the possession took place in a public place and was
visible to others, such as in a bank. But just as our task
is not a search for a hypothetical way in which a violent
crime can be committed without risky behavior, 

, we are not to speculate about how a
crime can be committed in a risky manner. Instead, we
10                                                No. 11-3788

are to look at the conduct required by the statute, that is,
the ordinary manner of violating the law. And in the
ordinary case, the possession of a short-barreled
shotgun does not create any potential risks of harm to
another person because all that is involved is the
knowing possession of a weapon. As explained in
Sykes, the potential collateral consequences of vehicular
flight placed the risk of harm to other persons above
burglary and 

. But the poten-
tial collateral consequences of simple possession of a
short-barreled shotgun are much harder to imagine. Even
though a short-barreled shotgun is quite dangerous, its
real risks will almost always manifest only when used
or carried in a manner causing others to react. Cf.

(crime of “failure to report”
involves the offender “doing something” but “there is
no reason to believe that the something poses a serious
potential risk of physical injury”); United States v. Sims, 

, 817 (7th Cir.) (possession crimes are typically
passive offenses), cert. denied, 

(2012).
  We recognize that possession of a short-barreled shot-
gun suggests that the possessor might take a step, if
presented with the chance, toward using it with its ad-
vantages of enhanced ability to conceal and wide spread
of shot. See 

; see also United States
v. Vincent, 

, 826 (8th Cir. 2009) (citing
Upton). There is also the risk that brandishing such an
infamous firearm may prompt a dangerous response
from others. But the crime of simple possession does not
include any of this behavior as an inherent aspect of the
offense. Missing is the action present in the enumerated
No. 11-3788                                               11

§ 924(e)(2)(B)(ii) crimes, as vividly explained in Sykes in
the crime of flight from an officer by 

(involving “confrontations that initiate and ter-
minate the incident,” and the demand for pursuit with
“high risks of crashes” followed by a “serious potential
risks of physical injury to others”). Similarly in James,
the crime of attempted burglary qualified as a violent
felony not because “the simple physical act of wrong-
fully entering onto another’s property” carried some
risk, but because of the “main risk” from a possible “face-
to-face confrontation between the burglar and a third

.
  Mere possession of a weapon has nothing in common
with the risk-creating aspects of the listed crimes. Arson
involves the unleashing of a dangerous force which may
be intended only to damage physical structures, but
which may harm individuals, such as responders, as a
result. Extortion implicates the threat of a harm to
others if demands are not met, as well as the great poten-
tial for a reaction to the threat, perhaps like the potential
reaction to flight from law enforcement, which can re-
sult in a tragic confrontation. And like arson, the use of
explosives unleashes an uncontrollable force that poses
a high risk of harming those in its path or responding
to its consequences. Perhaps the use of explosives is
the closest analogue to the possession of a dangerous
weapon; but it isn’t very close at all. A closer compari-
son would be an offense involving possession of explo-
sives, but ACCA only lists crimes that involve the use
of such dangerous materials, not the inert act of pos-
sessing them. See 18 U.S.C. § 924(e)(2)(B)(ii); United
12                                              No. 11-3788

States v. McGill, 

, 1277 (11th Cir. 2010) (per
curiam) (“Congress included only the use, but not the
possession of, explosives among the ACCA’s example
crimes.”). Of course, if a short-barreled shotgun is as-
sembled, loaded, and fired, the similarity to using ex-
plosives is closer. But the mere possession of the gun
does not inherently pose those risks.
   The government maintains that a short-barreled shot-
gun is a “weapon of personal confrontation” because it
is “less likely to be carried defensively” and is “possessed
for offensive purposes.” But while these enhanced risks
may compare to the risk levels associated with the
mere possession of a hunting rifle or handgun, they do
not compare to the risks posed by the conduct under-
lying burglary, arson, extortion, and offenses involving
the use of explosives. We do not doubt that a short-bar-
reled shotgun may inherently be a more dangerous
weapon than an ordinary rifle or handgun, but until
the short-barreled shotgun is exposed or revealed to
others, the type of danger existing in the listed crimes is
not present. It is only manifested when the weapon
is brought out from under the mattress or out of the
closet or trunk.
   Unlike past cases, e.g., 

(rejecting report on assaults causing officer injury), the
government does not support its position with statistics.
Instead, it points to the Application Notes for the career
offender provision in the Sentencing Guidelines, which
includes unlawful possession of a sawed-off shotgun in
its examples of crimes of violence, U.S.S.G. § 4B1.2, Ap-
No. 11-3788                                             13

plication Notes, and our past practice of treating the
Guidelines’ definition of “crime of violence” as inter-
changeable with the ACCA definition of “violent fel-
ony,” e.g., United States v. Rosas, 

, 335-36
(7th Cir. 2005) (per curiam). We recently held that the
Application Note’s instruction that inchoate offenses
such as conspiracy are crimes of violence when the un-
derlying crime is a crime of violence is dispositive
for purposes of the Guidelines, even if the result is dif-
ferent under nearly identical language in ACCA. United
States v. Raupp, 

, 758-61 (7th Cir.), cert.
denied, 

(2012).
  What weight, if any, the Guidelines’ Application Notes
should be given in interpreting criminal statutes is an
interesting question in general, but a close examination
of the Application Notes relevant in this case reveals
that relying on those notes to decide this case would
place us on shaky ground. The Commission added the
possession of a sawed-off shotgun as a “crime of vio-
lence” in 2004 (before James, Begay, Chambers and Sykes
were decided) because of (1) Congress’s determination
in the National Firearms Act, see 26 U.S.C. § 5845(a), that
such weapons “are inherently dangerous and when
possessed unlawfully serve only violent purposes” and
(2) a number of courts had found that possessing these
types of weapons presents a serious potential risk of
physical injury to another. See U.S.S.G. § 4B1.2, 2004
Amendments. As explained above, how courts look at
ACCA’s residual clause has changed since this amend-
ment. Although Congress quite rightly found that such
weapons serve no legitimate purpose, see Conf. Rep. No.
14                                              No. 11-3788

90-1956, reprinted in 1968 U.S.C.C.A.N. 4426, 4434 (1968)
(“National Firearms Act covers gangster-type weapons
such as machineguns, sawed-off shotguns, short-barreled
rifles, mufflers, and silencers.”); Harry Henderson, Gun
Control 17 (2005) (Congress imposed in 1934 a $200 tax
on sawed-off shotguns because their shortness allowed
for easy concealment making them particularly useful
to criminals), that doesn’t mean that their mere posses-
sion presents a degree or type of risk of violence com-
parable to burglary, arson, extortion, or crimes in-
volving the use of explosives. So even if Miller’s convic-
tion for possessing a short-barreled shotgun qualified as
a crime of violence under the Guidelines, it does not
lend support to interpreting ACCA’s statutory text in a
similar manner.
  Before Sykes, Upton held that possession of a sawed-
off shotgun in violation of an Illinois law 4 constituted
a violent felony under ACCA’s residual clause. We
reached that conclusion primarily because we had
already determined that such possession was a “crime
of violence” for purposes of the 

(citing United States v. Brazeau, 

, 844 (7th
Cir. 2001)). In reaching that result, we noted that posses-
sion of a sawed-off shotgun poses a serious potential risk


4
  “A person commits the offense of unlawful use of weapons
when he knowingly . . . possesses . . . a shotgun having one
or more barrels less than 18 inches in length or any weapon
made from a . . . shotgun . . . if such a weapon as modified
has an overall length of less than 26 inches.” 720 ILCS 5/24-
1(a)(7)(ii) (2007).
No. 11-3788                                              15

of physical injury because of the illegitimate purposes
for which people use such firearms:
    People do not shorten their shotguns to hunt or
    shoot skeet. Instead, the shortened barrel makes
    the guns easier to conceal and increases the
    spread of the shot when firing at close range—
    facts that spurred Congress to require the regis-
    tration of all sawed-off shotguns, along with
    other dangerous weapons like bazookas, mortars,
    pipe bombs, and machine guns.

of sawed-off shotguns is sensible and we
are not changing that general view here. But given the
development in the framework for evaluating whether
an offense qualifies for the residual clause, this recogni-
tion of the inherent aspects of a short-barreled shotgun
is no longer sufficient. Upton, unaided by prescience of
the subsequent line of Supreme Court ACCA cases dis-
cussed above, did not address whether the risks posed
by the mere possession of a sawed-off shotgun were
comparable to the listed offenses.
  But even more recently, the Eighth Circuit in United
States v. Vincent found that the crime of possession of a
sawed-off shotgun was a violent felony under ACCA’s
residual clause because “it enables violence or the threat
of violence” and makes it more likely that the offender
will later use that weapon to harm 

; see also United States v. Lillard, 

, 777
(8th Cir. 2012) (reaffirming Vincent) Vincent also relied
on the commentary to U.S.S.G. § 4B1.2(a) as persuasive
authority. Vincent considered “whether possession of a
16                                                  No. 11-3788

sawed-off shotgun is roughly similar, in kind as well as
degree of risk posed, to the offenses [in the residual
clause]—burglary, arson, extortion, and the use of explo-

(emphasis added). It likened a
sawed-off shotgun to explosives: “Like explosives,
a sawed-off shotgun can inflict indiscriminate carnage.”

but the residual clause doesn’t make
possession of explosives a “violent felony.” See 18 U.S.C.
§ 924(e)(2)(B)(ii); 

(“Congress
included only the use, but not the possession of,
explosives among the ACCA’s example crimes.”). We do
not disagree with Vincent’s discussion of the sawed-off
shotgun’s ability to enable violence and that the
possession of such a weapon makes it more likely that
the offender will later use it. We simply don’t think
that the latent risks inherent in the offense of possessing
a short-barreled shotgun are sufficient to qualify for
the residual clause when the crimes from which we
are instructed to guide our determination—burglary,
arson, extortion, and crimes involving the use of ex-
plosives—all are inherently risky without that extra
step required for the risk to manifest.5
  Our holding is consistent with McGill’s ultimate con-

(possession of a short-



5
   The First Circuit also has held that possession of a sawed-off
shotgun is a violent felony under ACCA’s residual clause, see
United States v. Fortes 

, 6-8 (1st Cir. 1998), relying,
like the Eighth Circuit, on the weapon’s inherent dangerous-
ness and lack of lawful use. Our disagreement with Vincent’s
reasoning applies to the Fortes decision as well.
No. 11-3788                                                     17

barreled shotgun is not a violent felony under ACCA
because it is not “similar in kind” to the “ ‘use of explo-
sives” or to the other crimes listed in ACCA’s residual
clause), and with United States v. Amos, 

, 528-
30 (6th Cir. 2007) (holding that possession of a sawed-
off shotgun is not a violent felony under ACCA because
“possession does not fit well with the more active
crimes included in the statute” and not all instances
of sawed-off shotgun possession pose a risk of vio-
lence),6 which were decided without the benefit of
Sykes. We note, however, our disagreement with McGill’s
assessment of the risk posed by possession of a short-
barreled shotgun, 

(such possession
“presents a serious potential risk of physical injury to
another”), and our agreement with Amos’s conclusion
regarding that risk, 

(noting a dis-
tinction between crimes that carry “future risks of vio-
lence” and crimes that carry “risk of violence”). Because
we hold that the developments in this area of the law




6
  The Fourth Circuit initially found possession of a weapon
of mass destruction a violent felony, but after the Supreme
Court remanded in light of Begay, the court did a quick about-
face. United States v. Haste, 292 F. App’x 249, 250 (4th Cir. 2008)
(per curiam). United States v. Crampton also held that posses-
sion of an unregistered short-barreled shotgun is an ACCA
violent felony, 

, 898 (9th Cir. 2008), but the Court
also vacated and remanded that case in light of Begay and
Chambers, see 

(2009), and no subsequent deci-
sion has been reported.
18                                              No. 11-3788

require a different result than the one reached in Upton, 7
it is unnecessary to address Miller’s constitutional ar-
guments.
  We V ACATE Miller’s sentence and R EMAND for resen-
tencing.




7
  This opinion has been circulated among all judges of this
court in regular active service pursuant to Cir. R. 40(e). No
judge favored a rehearing en banc on the question of
overruling the relevant portion of 

.


                           6-27-13