The Volokh Conspiracy - Is Illegal Gun Possession a "Violent Felony"?

Aubrey Shante Amos pled guilty to being a felon in possession of a firearm. At sentencing, the prosecutor sought an enhanced sentence for his three prior convictions of predicate offenses under he Armed Career Criminal Act (ACCA). Two of Amos' prior convictions clearly qualified as either a "violent felony" or serious drug offense, but the defense disputed the third: a conviction for possession of a sawed-off shotgun. Contrary to the government's claim, the defense argued, mere possession of a weapon cannot constitute a violent felony. The district court agreed, and the government appealed.

Today, in United States v. Amos, the U.S. Court of Appeals for the Sixth Circuit held, 2-1, in Amos' favor. The opinion for the court, written by Judge Martin, concluded that possession of a sawed-off shotgun, without more, does not satisfy the definition of a violent felony as defined in the ACCA:

the term "violent felony" means any crime punishable by imprisonment for a term exceeding one year, . . . 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;

As Judge Martin reasoned,

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, it would only qualify as a predicate offense if it is deemed to be "conduct that presents a serious potential risk of physical injury to another."

In this case, Amos was not convicted of anything other than simple possession of the weapon, which does not itself pose a serious potential risk to others.

there is no showing that Amos did anything with the sawed-off shotgun beyond merely possessing it, and the analysis of this crime as a violent felony question focuses only on the language of the statute and the fact that he violated it. Further, as Amos points out, the Court "must consider the least objectionable conduct that would violate this statute." United States v. Maness, 23 F.3d 1006, 1008 (6th Cir. 1994). Consequently, to qualify as a violent felony, the possession of the gun would have to pose a serious potential risk to others even if Amos kept it as a collector's item or family heirloom, stored it in his attic, or used it to fend off groundhogs from his garden.

Judge Batchelder wrote a separate concurring opinion, in which she endorsed "the majority's judgment and reasoning."

Judge McKeague dissented, arguing that possession of a sawed-off shotgun is "inherently dangerous conduct." According to McKeague,

It should go without saying that unlawfully possessing one of these "gangster-type" "weapons of war" creates a serious potential risk of physical injury. In comparison to a regular shotgun, a sawed-off shotgun is generally less, not more, accurate and has a lower range—both of which are presumably considered drawbacks by most gun enthusiasts. However, what it lacks in accuracy and range, it more than makes up for in concealment and maneuverability. With its shorter barrel, a sawed-off shotgun can be concealed under a large shirt or coat. It is the combination of low, somewhat indiscriminate accuracy, large destructive power, and the ability to conceal that makes a sawed-off shotgun useful for only violence against another person, rather than, for example, against sport game.

The potential risk for physical injury is magnified when a person unlawfully possesses a sawed-off shotgun or another one of these weapons. By doing so, that person has evinced an obvious disregard for federal and, in some cases, state law (here, Tennessee)—never a good sign when that disregard is manifested by the act of possessing a "gangster-type weapon."

Judge Martin responded arguing that if Congress agreed with this view, it would have completely banned sawed-off shotguns or explicitly defined illegal possession as a violent felony Instead, possession is only a federal crime if the weapon is unregistered, and possession is not among those crimes specifically listed as violent felonies in the ACCA. That seems like the correct argument to me.

The Sixth Circuit's conclusion in Amos is at odds or in tension with the opinions of several other circuits, some of which concluded that illegal gun possession is a "violent felony" under the ACCA, others of which concluded that such possession is a "crime of violence" for purposes of federal law. This would seem to make Amos a reasonable candidate for certiorari.

	[Jonathan Adler, August 9, 2007 at 11:25pm] Trackbacks Is Illegal Gun Possession a "Violent Felony"? Aubrey Shante Amos pled guilty to being a felon in possession of a firearm. At sentencing, the prosecutor sought an enhanced sentence for his three prior convictions of predicate offenses under he Armed Career Criminal Act (ACCA). Two of Amos' prior convictions clearly qualified as either a "violent felony" or serious drug offense, but the defense disputed the third: a conviction for possession of a sawed-off shotgun. Contrary to the government's claim, the defense argued, mere possession of a weapon cannot constitute a violent felony. The district court agreed, and the government appealed. Today, in United States v. Amos, the U.S. Court of Appeals for the Sixth Circuit held, 2-1, in Amos' favor. The opinion for the court, written by Judge Martin, concluded that possession of a sawed-off shotgun, without more, does not satisfy the definition of a violent felony as defined in the ACCA: the term "violent felony" means any crime punishable by imprisonment for a term exceeding one year, . . . 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; As Judge Martin reasoned, 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, it would only qualify as a predicate offense if it is deemed to be "conduct that presents a serious potential risk of physical injury to another." In this case, Amos was not convicted of anything other than simple possession of the weapon, which does not itself pose a serious potential risk to others. there is no showing that Amos did anything with the sawed-off shotgun beyond merely possessing it, and the analysis of this crime as a violent felony question focuses only on the language of the statute and the fact that he violated it. Further, as Amos points out, the Court "must consider the least objectionable conduct that would violate this statute." United States v. Maness, 23 F.3d 1006, 1008 (6th Cir. 1994). Consequently, to qualify as a violent felony, the possession of the gun would have to pose a serious potential risk to others even if Amos kept it as a collector's item or family heirloom, stored it in his attic, or used it to fend off groundhogs from his garden. Judge Batchelder wrote a separate concurring opinion, in which she endorsed "the majority's judgment and reasoning." Judge McKeague dissented, arguing that possession of a sawed-off shotgun is "inherently dangerous conduct." According to McKeague, It should go without saying that unlawfully possessing one of these "gangster-type" "weapons of war" creates a serious potential risk of physical injury. In comparison to a regular shotgun, a sawed-off shotgun is generally less, not more, accurate and has a lower range—both of which are presumably considered drawbacks by most gun enthusiasts. However, what it lacks in accuracy and range, it more than makes up for in concealment and maneuverability. With its shorter barrel, a sawed-off shotgun can be concealed under a large shirt or coat. It is the combination of low, somewhat indiscriminate accuracy, large destructive power, and the ability to conceal that makes a sawed-off shotgun useful for only violence against another person, rather than, for example, against sport game. The potential risk for physical injury is magnified when a person unlawfully possesses a sawed-off shotgun or another one of these weapons. By doing so, that person has evinced an obvious disregard for federal and, in some cases, state law (here, Tennessee)—never a good sign when that disregard is manifested by the act of possessing a "gangster-type weapon." Judge Martin responded arguing that if Congress agreed with this view, it would have completely banned sawed-off shotguns or explicitly defined illegal possession as a violent felony Instead, possession is only a federal crime if the weapon is unregistered, and possession is not among those crimes specifically listed as violent felonies in the ACCA. That seems like the correct argument to me. The Sixth Circuit's conclusion in Amos is at odds or in tension with the opinions of several other circuits, some of which concluded that illegal gun possession is a "violent felony" under the ACCA, others of which concluded that such possession is a "crime of violence" for purposes of federal law. This would seem to make Amos a reasonable candidate for certiorari.