Sentencing – ACCA

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United States Court of Appeals For the Seventh Circuit

Criminal

Sentencing – ACCA

Mere possession of a short-barreled shotgun is not a violent felony under the ACCA.

“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 someone. 575 F.3d at 826; see also United States v. Lillard, 685 F.3d 773, 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 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 explosives.’ 575 F.3d at 826 (emphasis added). It likened a sawed-off shotgun to explosives: ‘Like explosives, a sawed-off shotgun can inflict indiscriminate carnage.’ Id. True enough, but the residual clause doesn’t make possession of explosives a ‘violent felony.’ See 18 U.S.C. § 924(e)(2)(B)(ii); McGill, 618 F.3d at 1277 (‘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 explosives— all are inherently risky without that extra step required for the risk to manifest.”

Vacated and Remanded.

11-3788 U.S. v. Miller

Appeal from the United States District Court for the Eastern District of Wisconsin, Randa, J., Tinder, J.