The Supreme Court of the United States
heard oral arguments on November 5, 2014. The decision is still pending.
Issue: Is possession of a short-barreled shotgun considered a
violent felony under the Armed Career Criminal Act?
Facts:
In April 2012, Petitioner, Samuel James
Johnson, was arrested by law enforcement and at the time he admitted to the
possession of an AK-47 rifle and a .22 caliber semiautomatic handgun. Prior to
his arrest, FBI was monitoring Mr. Johnson’s movements. He initially was part
of the National Socialist Movement that advocated white-supremacist views and
violence against minorities. He left the National Socialist Movement around
June 2010 and formed the Aryan Liberation Movement. While in the Aryan
Liberation Movement, Mr. Johnson told an undercover agent that he manufactured
explosives and silencers and showed him his AK-47 rifle and ammunition.
Throughout 2011, Mr. Johnson discussed various attacks he planned against
targets in Minnesota.
On June 6, 2012, Mr. Johnson pled guilty
to a violation of 18
U.S.C.S. § 922(g) and was sentenced to 180 months imprisonment. He was a
prior convicted felon who was in possession of a firearm. While he was aware
that the Armed Career Criminal Act[1] (“ACCA”) might apply and increase his
sentence when entering his plea agreement, he reserved the right to challenge
its applicability. Before being sentenced, the pre-sentence investigation
report revealed that Mr. Johnson had three prior convictions: two for simple
robbery and one for possession of a short-barreled shotgun. In looking at all
three of these convictions, at sentencing the district court judge ruled that
all of the prior convictions were in fact violent felonies within the meaning
of the ACCA and rejected Mr. Johnson’s challenge to the applicability of the
ACCA.
Mr. Johnson appealed the district court’s
decision, stating that the conviction for the possession of a short-barreled
shotgun was not a violent felony under the ACCA. Without this third conviction,
Mr. Johnson would not qualify as an armed career criminal. However, the Eight
Circuit affirmed his sentence stating that it had already ruled on this issue. In
United
States v. Lillard[2], the Eight Circuit said that a sawed-off
shotgun qualified as a violent felony under the “residual clause” of the ACCA.
Petitioner’s Argument:
Petitioner argues that without the
enhancement of the ACCA, he would have been sentenced to ten years as opposed
to the fifteen years he was sentenced. He argues that this sentence enhancement
is in error because possession of a short-barreled shotgun is not a violent
felony under the ACCA. According to Petitioner, the possession of a short-barreled
shotgun fails the two tests needed in order to qualify as a violent felony
under the “residual clause” because the offense is not similar in kind or in
degree of risk to the statute’s enumerated offenses, as announced by the
Supreme Court in a previous case. In regards to the “in kind” offenses,
Petitioner states that the possession of a short-barreled shotgun is different
from the enumerated offenses in a number of ways including that the enumerated
offenses are not possession offenses, that possession of a short-barreled
shotgun is not a crime in the majority of the states, and that in the states
that do consider possession of a short-barreled shotgun a crime, it is a
strict-liability offense. Furthermore, he states that possession is passive, non-violent,
and not aggressive, and therefore it could not be a violent felony.
In regards to the “in degree of risk” to
the enumerated offenses of the statute, Petitioner stated that mere possession poses
little risk of physical injury and that the use of handguns is higher than the
use of shotguns in crimes. He also stated that there are legitimate uses for
shotguns, which undermines the belief that possession of such guns is
inherently suspect.
Finally, Petitioner argues that the rule
of leniency applies because when struggling to interpret the scope of a
criminal statute, ambiguity and doubt should be ruled in favor of the
defendant. Here, lenity requires a finding that the ACCA’s definition of a
violent felony, at a minimum, does not include mere possession of a
short-barreled shotgun.
Based on the foregoing arguments,
Petitioner wants the Court to vacate the Eight Circuit’s judgment and remand
the case for further proceedings because Mr. Johnson does not qualify as an
armed career criminal.
Respondent, the United States, began its
argument by stating that shotguns are dangerous weapons because they can spread
pellets across someone’s body or create a wide cavity in the body depending on
how far away the shotgun was from the target. Furthermore, a short-barreled
shotguns or “sawed-off” shotguns became the weapon of choice for gangsters and
bank robbers during the Prohibition Era. The Respondent also cited to House of
Representatives Report for the National Firearms Act (“NFA”) stating, “there is
no reason why anyone except a law officer should have a …sawed-off shotgun.” When
it was amended,[3]
the NFA regulated firearms that are particularly dangerous including “a shotgun
having a barrel or barrels of less than 18 inches in length.” The NFA makes it
a criminal offense to possess an NFA firearm made or transferred in violation
of the statute. Congress also enacted the Omnibus Crime Control and Safe
Streets of 1968[4]
to prohibit anyone other than a licensed importer, manufacturer, dealer, or
collector from transporting a short-barreled shotgun in interstate commerce
unless the transport is “specifically authorized by the Attorney General
consistent with public safety and necessity.”
In regards to the ACCA, Respondent stated
that it defined “violent felony” as “any crime punishable by imprisonment for a
term exceeding one year” that is “burglary, arson, or extortion, involves
explosives, or otherwise involves conduct that presents a serious potential
risk of physical injury to another.[5]”
Under the residual clause of this definition, an offense falls in this category
if the offense presents a serious potential risk of injury to another[6].
Respondent says that possession of a short-barreled shotgun meets this standard
because unlawful possession of shotguns are usually used in connection with
criminal activities and the chance of confrontation during the commission of a crime
will likely result in death or serious injury.
Respondent counters Petitioner’s argument
by stating that the residual clause does not require the statute to state every
conceivable factual offense that poses a serious potential risk of injury in
order for the offense to be deemed a violent felony. Rather, Congress intended
to encompass possibilities. In regards to Petitioner’s argument that a shotgun
poses little risk, Respondent stated that it poses the risks of dangerous
violent confrontation and the disregard for the safety of others. It also poses
a risk similar to extortion because the presence of the weapon conveys an
implicit threat of violence. Finally, in challenging Petitioner’s possession
argument that it is passive and nonviolent, Respondent stated that the proper
inquiry is whether possession poses a serious potential risk of injury to
another, not whether it always does. Also, in challenging Petitioner’s
“in-kind” argument, Respondent cited to James
v. United States saying that the Court stated that the enumerated offenses
in the ACCA all create a significant risk of bodily injury or confrontation
that might result in bodily injury, and this Court’s analysis defeated
Petitioner’s argument that the absence of an expressly enumerated possession
offense means that possession offenses are categorically excluded from the
residual clause.
Given these arguments, the Respondent
wants the Court to affirm the Eighth Circuit’s decision.
Practitioners:
What also appears to be at issue in this
case is the constitutionality of the residual clause of the ACCA. This is the
fifth time the Supreme Court is hearing a residual clause case within the last
seven years. The Court could limit its ruling to the facts of this case and either
affirm or vacate the Eightgh Circuit’s decision, or it can rule on the
constitutionality of the residual clause of the ACCA. If the Court rules that possession
of a short-barreled shotgun does fit the violent felony definition, then it
would be adding to the list of enumerated crimes listed in the ACCA. It will
also potentially open the door for other possession crimes that are not at
issue here but could be in the future. Essentially, it could open the door to
qualify a lot of crimes that could pose a risk of injury to others. On the
other hand, if the Court rules that possession of a short-barreled shotgun does
not fit the violent felony definition, the Court would put a limit on the
residual clause of the ACCA by stating that possession crimes do not qualify. The
Court could be saying that actual injury needs to occur in order for the crime
to qualify as a violent felony.
In regards to the possible
constitutionality issue of the residual clause of the ACCA, if the Court deems
the residual clause as unconstitutional, the ACCA would be limited in respect
to the other qualifications necessary for a violent felony. The ACCA would be
able to survive without the residual clause.
[1] 18
U.S.C.S. §§ 924(e)(1) and (e)(2) (2014).
[2] United States v. Lillard, 685 F.3d 773,
777 (8th Cir. 2012).
[3] See National Firearms Act Amendments of
1968, Pub. L. No. 90-618, § 201, 82 Stat. 1227-1235 (26 U.S.C. 5801-5872
(1970)).
[4] 18
U.S.C. § 922(a)(4).
[5] 18
U.S.C. 924(e)(2)(B)(ii).
[6] James v. United States, 550 U.S. 192,
208 (2007).
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