09-CR-71 U.S. v. Bradford

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Sentencing
ACCA; short-barreled shotguns

Possession of a short-barreled shotgun is not a violent felony under the Armed Career Criminal Act.

“Post-Begay, courts should draw a distinction between ‘active’ and ‘passive’ crimes to determine whether they involve violent and aggressive conduct. See Polk, 577 F.3d at 519. Because possession of a short-barreled shotgun, a passive crime, does not involve such conduct, it does not qualify as a violent felony under the ACCA.”

“McGill provides a somewhat different route to the same destination. The McGill court declined to consider whether possession of a short-barreled shotgun is purposeful, violent, or aggressive. 618 F.3d at 1277.

Rather, the court noted that Congress regulates explosives and short-barreled shotguns similarly under the National Firearms Act (‘NFA’). See 26 U.S.C. § 5845(a). The Court then noted that, even accepting that short-barreled shotguns are more dangerous than ordinary firearms, akin to explosives in terms of dangerousness and violence, ‘Congress included only the use, but not the possession of, explosives among the ACCA’s example crimes.’ McGill, 618 F.3d at 1277. The court thus concluded that possession of a short-barreled shotgun is not similar in kind to the use of explosives, the closest analog among the enumerated ACCA predicates. Id.”

09-CR-71 U.S. v. Bradford

E.D.Wis., Adelman, J.