United States v. Hawkins

554 F.3d 615, 2009 U.S. App. LEXIS 2351, 2009 WL 249098
CourtCourt of Appeals for the Sixth Circuit
DecidedFebruary 4, 2009
Docket08-5138
StatusPublished
Cited by11 cases

This text of 554 F.3d 615 (United States v. Hawkins) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Hawkins, 554 F.3d 615, 2009 U.S. App. LEXIS 2351, 2009 WL 249098 (6th Cir. 2009).

Opinion

OPINION

KENNEDY, Circuit Judge.

On May 3, 2007, a grand jury issued an indictment alleging that defendant Hawkins had conspired to distribute and had distributed quantities of powder and crack cocaine. At the time of the indictment, Hawkins had two prior felony convictions, one of which was for possession of an unregistered firearm. Hawkins entered a plea agreement, pleading guilty to conspiring to distribute cocaine base in violation of 21 U.S.C. § 846 and reserving the right to appeal the court’s potential classification of him as a career offender under U.S.S.G. § 4B1.1. Prior to sentencing, he filed an objection in which he argued that his conviction for possession of an unregistered firearm was not a “crime of violence” within U.S.S.G. § 4B1.1. J.A. at 67. Relying on the commentary to U.S.S.G. § 4B1.2 and rulings from our sister circuits, the district court overruled Hawkins’ objection and applied the career offender enhancement, sentencing Hawkins to two hundred sixty-two (262) months of imprisonment. Hawkins timely appealed the career offender enhancement.

ANALYSIS

Under the United States Sentencing Guidelines, a defendant is a “career offender” if:

(1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction;
(2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and
(3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.

U.S.S.G. § 4Bl.l(a). The Guidelines define “crime of violence” as

any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that—
(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or
(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. § 4B1.2(a). We review de novo a district court’s determination that an offense constitutes a “crime of violence” under the Guidelines. United States v. Har-grove, 416 F.3d 486, 494 (6th Cir.2005) (citation omitted).

Defendant bases his objection to being sentenced as a career offender on our court’s ruling in United States v. Amos, in which we held that the possession of a sawed-off shotgun under the Armed Career Criminals Act (ACCA) did not amount to a “violent felony.” 501 F.3d 524 (6th Cir.2007). He argues that because both the Guidelines enhancement at issue here *617 and ACCA provision addressed in Amos include the phrase “conduct that presents a serious potential risk of physical injury to another,” the two provisions should be construed in an identical manner. The similarly worded ACCA provides for an increased sentence for a defendant convicted under 18 U.S.C. § 922(g), the felon in possession statute, if the defendant has three prior convictions for “violent felonies]” or “serious drug offense[s].” Under the ACCA, a “violent felony” is defined as

any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, 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;

18 U.S.C. § 924(e)(2)(B). In Amos, we held that possession of a sawed-off shotgun did not fall within this definition 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.” Amos, 501 F.3d at 526. Additionally, following United States v. Doe, 960 F.2d 221, 224-25 (1st Cir.1992), we reasoned that “possession does not fit well with the more active crimes included in the statute.” Amos, 501 F.3d at 528.

Unlike the provision found in the ACCA, the career offender enhancement at issue here, through its Application Notes, specifically defines the term “crime of violence” to include unlawful possession of a sawed-off shotgun. U.S.S.G. § 4B1.2, cmt n. 1 (2007) (“Unlawfully possessing a firearm described in 26 U.S.C. § 5845(a) (e.g., a sawed-off shotgun or sawed-off rifle, silencer, bomb, or machine gun) is a ‘crime of violence.’ ”) We stated in Amos that, “if Congress had wanted the ACCA to cover offenses for possession of firearms as predicate offenses, it could easily have done so explicitly (i.e., the definition of violent felony could have included ‘possession of a firearm in violation of state or federal law’).” 501 F.3d at 530. In its Application Notes to U.S.S.G. § 4B1.2, the Sentencing Commission has done just that. 1

Further, the Application Notes to the Guidelines clearly evidence the Sentencing Commission’s intent to distinguish this provision from that of the ACCA. The commentary to § 4B1.4 specifically states that “the definitions of ‘violent felony’ and ‘serious drug offense’ in 18 U.S.C. § 924(c)(2) are not identical to the definitions of ‘crime of violence’ and ‘controlled substance offense’ used in § 4B1.1.” U.S.S.G. § 4B1.4, cmt n. 1 (2004). As the district court correctly concluded, “the guidelines are different than the armed career criminal act that Judge Martin was concerned with in his Amos decision.”

The district court relied on the language of the Guideline commentary to *618 distinguish the career offender enhancement at issue here from the ACCA’s similar provision. The Supreme Court has made clear that Guidelines commentary “that interprets or explains a guideline is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.” Stinson v. United States,

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Bluebook (online)
554 F.3d 615, 2009 U.S. App. LEXIS 2351, 2009 WL 249098, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-hawkins-ca6-2009.