UNITED STATES of America, Appellee, v. Joe Eugene VINCENT, Appellant, 575 F.3d 820

BENTON, Circuit Judge. Joe Eugene Vincent pled guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). He challenges the use of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), in his sentencing by the district court. Having jurisdiction under 28 U.S.C. § 1291, this court affirms. I. Before this case Vincent had three felony convictions. The ACCA imposes a mandatory minimum sentence if the defendant has “three previous convictions by any court ... for a violent felony....” 18 U.S.C. § 924(e)(1).

At issue is Vincent’s 1994 conviction for possession of a sawed-off shotgun under Ark.Code Ann. § 5-73-104 (1987). The Pre-Sentence Report considered this conviction a “violent felony” under 18 U.S.C. § 924(e)(2)(B). Vincent objected that the 1994 conviction was not a violent felony. The district court concluded that there was not enough information to show the gun met the federal definition of a sawed-off shotgun. However, the court determined there was sufficient information to show the “conviction involved conduct that by its nature presented a serious risk of physical injury to another.” United States v.

Vincent, 2007 WL 473691, at *2 (E.DArk. Feb.7, 2007). The court overruled Vincent’s objection, applied the ACCA, and sentenced him to 188 months. This court reviews de novo the finding that a defendant’s prior conviction constitutes a violent felony. United States v. Sumlin, 147 F.3d 763, 765 (8th Cir. 1998). The only issue is whether the 1994 conviction is a violent felony under the ACCA.

A “violent felony” means a crime punishable by a term of imprisonment exceeding one year that 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)(ii). As possession of a saw-off shotgun is not specifically listed, it is a violent felony only if it involves conduct that presents a serious potential risk of physical injury to another.

Both at the district court and on appeal, Vincent contends that the 1994 conviction can be an ACCA violent felony only if the sawed-off shotgun meets the federal definition of a sawed-off shotgun in 26 U.S.C. §

Section 5845(

a) defines a sawed-off shotgun by the barrel length or overall length of the gun. See 26 U.S.C. § 5845(a)(2). At the time of the conviction, Arkansas law prohibited any sawed-off gun, regardless of length. See Moore v. State, 304 Ark. 257, 801 S.W.2d 638, 642 (1990) (“[T]he extent to which [the barrel of the shotgun] had been shortened is not relevant to this prosecution”). Vincent concludes that the § 5845(

a) standard should be read into the ACCA statute, even though the ACCA statute does not refer to § 5845(a). Cf. United States v. Allegree, 175 F.3d 648, 651 (8th Cir.1999) (ACCA applied to conviction for possession of a sawed-off shotgun whose length met 26 U.S.C. § 5845 — although this

section was not cited or discussed in the opinion); United States v. Childs, 403 F.3d 970, 971 (8th Cir.2005) (ACCA applied to juvenile conviction for possession of a sawed-off shotgun; neither the length of the gun nor 26 U.S.C. § 5845 were cited or discussed in the opinion). True, Sentencing Guideline § 4B1.4(b)(3)(A) — on armed career criminals — refers to a “firearm” as “a type described in 26 U.S.C. § 5845(a).”

Section 4B1.4 implements 18 U.S.C. § 924(

e) into the Sentencing Guidelines. “If the offense level determined under this

section [U.S.S.G. § 4B1.4] is greater than the offense level otherwise applicable, the offense level determined under this

section shall be applied.” U.S.S.G. § 4B1.4 cmt. background.

Section 4B1.4 does not apply in this case. This court rejected Vincent’s challenge in an earlier appeal. United States v. Vincent, 519 F.3d 732 (8th Cir.2008). As the court noted, the issue is not whether the 1994 shotgun meets the § 5845 standard, but whether the prior “conviction is for a crime that ‘otherwise involves conduct that presents a serious potential risk of physical injury.’ ” Id. at 733.

The Arkansas statute under which Vincent was convicted prohibited the possession of any “sawed-off shotgun or rifle, ... or other implement for the infliction of serious physical injury or death which serves no common lawful purpose.” Ark. Code Ann. § 5-73-104(a) (amended 1993).

At first glance, the “serious physical injury” phrase might not appear to modify “shotgun.” However, the Arkansas Supreme Court has held that a conviction for use of each prohibited weapon listed in the statute — including a sawed-off shotgun— has the element that the weapon “will inflict serious physical injury or death and serves no lawful purpose.” Bridges v. State, 327 Ark. 392, 938 S.W.2d 561, 563 (1997). This court concluded that the sawed-off shotgun conviction was a crime of violence, irrespective of the § 5845 standard. Vincent, 519 F.3d at 734. II.

The Supreme Court vacated this court’s earlier opinion in this case and remanded for further proceedings in light of Begay v. United States, 553 U.S. -, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), and Chambers v. United States, 555 U.S. -, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009). Vincent v. United States, — U.S. -, 129 S.Ct. 996, 173 L.Ed.2d 289 (2009). Both cases interpret the “otherwise” clause, of § 924(e). Begay held that the clause does not include the state-law offense of driving under the influence. Begay, 128 S.Ct. at 1588.

The “otherwise” clause in the ACCA’s definition of crime of violence “covers only those crimes ‘roughly similar, in kind as well as in degree of risk posed, to the examples themselves.’ ” United States v. Gordon, 557 F.3d 623, 625 (8th Cir.2009), quoting Begay, 128 S.Ct. at 1585. “The Begay Court elucidated the similar-in-kind requirement by noting the examples ‘all typically involve purposeful, violent, and aggressive conduct.’ ” Id.,quoting Begay, 128 S.Ct. at 1586. In Chambers, the Supreme Court concluded that the state-law crime of failing to report for confinement is not a violent felony under the ACCA.

Chambers, 129 S.Ct. at 693. The Court noted that this “crime amounts to a form of inaction, a far cry from the purposeful, violent, and aggressive conduct potentially at issue when an offender uses explosives against property, commits arson, burgles a dwelling or residence, or engages in certain forms of extortion.” Id. at 692 (quotations omitted).

A. “In determining whether this crime is a violent felony, we consider the offense generically, that is to say, we examine it in terms of how the law defines the offense and not in terms of how an individual offender might have committed it on a particular occasion.” United States v.

Boaz, 558 F.3d 800, 807 (8th Cir.2009), quoting Begay, 128 S.Ct. at 1584. “When the law defines an offense by proscribing several discrete, alternative sets of elements that might be shown as different manners of committing the offense, we employ the modified categorical approach that permits examination of a limited class of materials to determine which set of elements the defendant was found to have violated.” Id.

This class of materials includes the “charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.” Shepard v. United States, 544 U.S. 13, 16, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). Here, the Arkansas statute bans “Criminal Use of a Prohibited Weapon”: A person commits the offense of criminal use of prohibited weapons if, except as authorized by law, he or she uses, possesses, makes, repairs, sales, or otherwise deals in any: (1) . Bomb; (2) . Machine gun; (3) . Sawed-off shotgun or rifle; (4) .

Firearm specially made or specially adapted for silent discharge; (5) . Metal knuckles; or (6) . Other implement for the infliction of serious physical injury or death. Ark.Code Ann. § 5-73-104 (1987). “If the predicate statute reaches a broad range of conduct, this court may expand the inquiry to review the charging papers and jury instructions, but only to determine which part of the statute the defendant violated.” United States v. Howell, 531 F.3d 621, 622-23 (8th Cir.2008). Vincent pled guilty that he did “use, possess, or otherwise deal in” a sawed-off shotgun.

Throughout this litigation, all participants, including Vincent, have characterized the disputed conviction as possession of a sawed-off shotgun. The facts of the PSR, to which Vincent did not object, are that he “was in possession of a stolen vehicle” and “a sawed off shotgun was found sitting on the front passenger seat.” Objecting to the PSR, Vincent acknowledged a conviction for possession, but argued the weapon’s barrel length was never proved.

Overruling the objection, the district court observed “the Court received into evidence, without objection, the criminal docket of the case that resulted in Vincent’s conviction for possessing a sawed-off shotgun.” At sentencing, the district court described the prior offense as “possession of a sawed-off shotgun.” Vincent’s appellate Brief refers to the § 5-73-104 conviction as “possession of a ‘sawed-off shotgun’.... ” His supplemental Brief, filed after the Supreme Court’s remand, states that “what is truly at issue is whether possession of a sawed-off shotgun qualifies as a violent felony under the ACCA.” Absent any prior objection or argument to the contrary, at this stage of litigation any assertion that Vincent was not convicted for possessing a sawed-off shotgun must receive plain error review.

Fed.R.Crim.P. 52(b). Under plain error review, “there must be (1) error, (2) that is plain, and (3) that affects substantial rights.” United States v. Keller, 413 F.3d 706, 710 (8th Cir.2005), quoting Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). Finally, if these three elements are met, relief may be granted if, in this court’s discretion, the error “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id., quoting Johnson, 520 U.S. at 467, 117 S.Ct. 1544. In United States v.

Mastera, 435 F.3d 56, 61-62 (1st Cir.2006), defense counsel “more or less conceded” facts showing which part of the Massachusetts burglary statute the defendant violated.

Reviewing the ACCA sentence for plain error, the First Circuit held the record showed a qualifying predicate offense. “It may be debatable whether the defendant’s admission, which was not made during the plea colloquy for the original conviction, falls within the evidence permitted by Taylor and Shepard.” Id. at 62. “But it was not a ‘clear’ or ‘obvious’ transgression of the Shepard rule for the sentencing court to consider the admission (which was sufficient to justify a conclusion by the court that the conviction was for generic burglary).” Id.

At all points of this litigation Vincent has acknowledged that his § 5-73-104 conviction is for possession of a sawed-off shotgun. Under plain error review, this court finds that any error in the Shepard analysis, if error at all, is not clear or obvious. B. Begay and Chambers create a two-part test for identifying violent offenses within the “otherwise” clause of § 924(e). First, the prior offense must “present[ ] a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii).

Second, the offense must be “roughly similar, in kind as well as degree of risk posed, to the” offenses listed in § 924(e)(2)(B)(ii). Begay, 128 S.Ct. at 1585. As for the first prong, possession of a sawed-off shotgun clearly presents a serious potential risk of physical injury to another. As interpreted by the Arkansas Supreme Court, Ark.Code Ann. § 5-73-104(

a) only applies to weapons “which will inflict serious injury or death.” Bridges, 938 S.W.2d at 563. Sawed-off shotguns “are inherently dangerous arid lack usefulness except for violent and criminal purposes.” Childs, 403 F.3d at 971, quoting Allegree, 175 F.3d at 651. Possession of a dangerous weapon that has no lawful purpose creates a serious potential risk of physical injury to others. Cf. United States v.

Zuniga, 553 F.3d 1330, 1334 (10th Cir.2009) (holding that possession of a weapon in prison presents a serious risk of physical injury to another because there is no lawful reason for a prisoner to possess a weapon), petition for cert. filed (U.S. Apr. 16, 2009) (No. 08-9944); United States v. Fortes, 141 F.3d 1, 7 (1st Cir.1998) (noting that under federal law “not all firearms must be registered, only those that Congress found to be inherently dangerous and lacking in lawful purposes, such as sawed-off shotguns and grenades”). But see United States v.

Haste, 292 Fed.Appx. 249, 250 (4th Cir.2008) (per curiam) (unpublished) (concluding, without analysis, that “conviction for felonious possession of a weapon of mass destruction” is not a violent felony under the ACCA). Second, this court must consider whether possession of a sawed-off shotgun is roughly similar, in kind as well as degree of risk posed, to the offenses listed in § 924(e) — burglary, arson, extortion, and the use of explosives. Like the listed crimes, possession of a sawed-off shotgun is illegal precisely because it enables violence or the threat of violence. See Bridges, 938 S.W.2d at 563.

Unlike DUI, a strict liability crime, conviction under this Arkansas statute requires proof of mens rea. State v. Setzer, 302 Ark. 593, 791 S.W.2d 365, 366 (1990) (requiring proof that the defendant “purposely, knowingly, or recklessly possessed” a prohibited weapon). Like explosives, a sawed-off shotgun can inflict indiscriminate carnage. See United States v. Upton, 512 F.3d 394, 404 (7th Cir.2008) (“[T]he shortened barrel makes the guns easier to conceal and increases the spread of the shot when firing at a close range.”).

Possession of a weapon that has only unlawful purposes makes it “more likely that an offender, later possessing a gun, will use that gun deliberately to harm a victim.” Begay, 128 S.Ct. at 1586. This court also relies on, as persuasive authority, the commentary to U.S.S.G. § 4B1.2(a), which defines a “crime of violence.” The “definition of a predicate ‘crime of violence’ closely tracks ACCA’s definition of ‘violent felony.’ ” James v.

United States, 550 U.S. 192, 206, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007). “The statutory definition of ‘violent felony’ is viewed as interchangeable with the guidelines definition of ‘crime of violence.’ ” United States v. Williams, 537 F.3d 969, 971 (8th Cir.2008), quoting United States v. Johnson, 417 F.3d 990, 996 (8th Cir.2005). While Begay’s holding applies only to the ACCA, this court applies Begay analysis to U.S.S.G. § 4B1.2(a). United States v. Pearson, 553 F.3d 1183, 1185 (8th Cir.2009). See also United States v.

Jackson, 549 F.3d 1115, 1118 (7th Cir.2008) (“[Complying with the Supreme Court’s edict, we have held, following the case law set forth in Begay, that a DWI is not a crime of violence for purposes of the sentencing guidelines.”). In James, the Supreme Court cited, as persuasive authority, U.S.S.G. § 4B1.2(

a) Application Note 1 to interpret the ACCA. James, 550 U.S. at 206-07, 127 S.Ct. 1586. Application Note 1 states: “ ‘Crime of violence’ does not include the offense of unlawful possession of a firearm by a felon, unless the possession was of a firearm described in 26 U.S.C. § 5845(a).” U.S.S.G. § 4B1.2 cmt. n. 1. In other words, the commentary indicates that possession of a sawed-off shotgun — a firearm described in 26 U.S.C. § 5845(a) — is a crime of violence under U.S.S.G. § 4B1.2(a).

Following the Supreme Court, this court relies on the Sentencing Guidelines’s commentary as persuasive authority that the kinds of risks posed by sawed-off shotguns render possession a “crime of violence” under the Sentencing Guidelines, and accordingly, a “violent felony” under the ACCA. Applying Begay, the Tenth Circuit held that a prisoner’s possession of a weapon was roughly similar, in kind as well as degree of risk, to the § 924(

e) listed crimes. Zuniga, 553 F.3d at 1334-36. Begay instructs that violent felonies “typically” involve purposeful, violent, and aggressive conduct. Begay, 128 S.Ct. at 1586. The Zuniga court reasoned that a statute reaching intentional, knowing, or reckless conduct could still fall within the “otherwise” clause of § 924(

e) because violations of such statutes “typically” involve purposeful conduct. Zuniga, 553 F.3d at 1334-35. Possession of a weapon in prison, the Zuniga court concluded, is violent and aggressive because it “creates the possibility — even the likelihood — of a future violent confrontation.” Id. at 1335. Similarly, possession of a sawed-off shotgun — a weapon with no lawful purpose — -is purposeful, violent, and aggressive conduct. This court concludes that possession of a sawed-off shotgun is similar, in kind as well as degree of risk posed, to the offenses listed in § 924(e).

The district court did not err by finding that the 1994 conviction is an ACCA-qualifying felony. The judgment of the district court is affirmed. . The Honorable J. Leon Holmes, Chief Judge, United States District Court for the Eastern District of Arkansas . Vincent’s objection states, in part: It seems fundamentally unfair that an individual would be subjected to the enhancements of 18 U.S.C. § 924(e)(2)(B)(ii) when the statute requires that the possession of firearms subject to be determined to qualify as a crime of violence meet the definition found in 26 U.S.C. § 5845(a). Mr.

Vincent, in his plea of guilty to the charge in 1994, did not admit to the

definitions required for the enhancement to apply in this case. . Under the Sentencing Guidelines: The term "crime of violence" means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that' — ... (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. § 4B 1.2(a).

Under the ACCA: [T]he term "violent felony” means 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 conduct that presents a serious potential risk of physical injury to another. 18 U.S.C. § 924(e)(2)(B). . When determining whether a prior conviction under Arkansas’s sawed-off shotgun statute is a “violent felony,” this court looks to Arkansas law, not to the definition of sawed-off shotgun in 26 U.S.C. § 5845(a). .

The United States Sentencing Commission submitted proposed amendments to the Guidelines to Congress on May 1, 2009, more than a year after Begay and nearly four months after Chambers. The proposed amendments include a technical revision to the § 4B1.2 commentary, but do not change the definition of "crime of violence” that includes possession of a sawed-off shotgun. See Sentencing Guidelines for United States Courts, 74 Fed.Reg. 21,750, 21,760 (May 8, 2009).