In the Supreme Court of the United States In the Supreme Court of ...

No. 13-201
______________________________________________________________________________
——————————————————
In In the the Supreme Supreme Court Court of of the the United United States
States
——————————————————
Roy Hinkley,
v.
Petitioner,
United States of America,
Respondent.
——————————————————
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRTEENTH CIRCUIT
——————————————————
BRIEF FOR RESPONDENT
Team No. 17
Counsel for Respondent
___________________________________________________________________

QUESTIONS PRESENTED
1. Is a non-arrest protective sweep reasonable under the Fourth Amendment when there is
not probable cause or a search warrant, but an officer legally enters the house pursuant to
consent while searching for a dangerous suspect who witnesses saw fleeing in the
direction of the house?
2. Is possession of an unregistered sawed-off shotgun a violent felony under the Armed
Career Criminal Act when the weapon is inherently dangerous, serves no lawful purpose,
and requires registration because of its close association to other violent crimes?
i

TABLE OF CONTENTS
ii
Page
Questions Presented .................................................................................................................... i
Table of Authorities .................................................................................................................... v
Opinions Below .......................................................................................................................... 1
Constitutional Provisions and Statutes Involved ......................................................................... 1
Statement of the Case ................................................................................................................ 1
Statement of Facts .......................................................................................................... 1
Procedural History ......................................................................................................... 4
Summary of the Argument ......................................................................................................... 4
Standard of Review ................................................................................................................... 6
Argument .................................................................................................................................. 7
I. The Thirteenth Circuit correctly denied the Convict’s motion, as a matter of
law, because officers should be permitted to perform protective sweeps when
the officer is legally on the premises and has reasonable suspicion of an
unknown danger. ....................................................................................................... 7
A. This Court should hold the Officer’s non-arrest protective sweep was
permissible because Terry and its progeny allow officers to take safety
measures when there is reasonable suspicion of danger. ...................................... 8
1. Terry’s officer safety logic encompasses non-arrest protective
sweeps because the Fourth Amendment’s reasonableness standard
permits officers to take reasonable safety measures. .................................... 9
2. This Court should uphold the majority circuits’ broad construction of
Terry, Long, and Buie by upholding protective searches when
officers reasonably suspect danger. ............................................................ 10
3. The minority circuits incorrectly apply Buie because they wrongly
view Buie as an isolated justification for protective sweeps. ...................... 11

TABLE OF CONTENTS–Continued
iii
Page
B. The Officer’s protective sweep was reasonable because the Officer was
legally on the premises, the Officer had reasonable suspicion of an
unknown danger, and the officer limited the sweep in both scope and
duration. ........................................................................................................... 12
1. The Officer was legally on the Convict’s premises for a legitimate
law enforcement purpose because the Convict consented to the
Officer’s presence in the home and the Officer was securing the
Convict’s
neighborhood following a burglary. ........................................................... 12
2. The Officer had reasonable suspicion that a dangerous individual was
on the premises because witnesses had seen the burglar fleeing in the
direction of the Convict’s house and the Officer knew that the
Convict had a known criminal past. ........................................................... 14
3. The Officer limited the sweep in scope and duration because the
Officer looked briefly into an adjoining room and not into a sensitive
area of the house. ....................................................................................... 15
II. The Thirteenth Circuit erred, as a matter of law, by not holding that
possession of an unregistered sawed-off shotgun is a violent felony under the
ACCA because such possession involves conduct that presents a serious
potential risk of physical injury to another that is similar in degree and in
kind, to the enumerated offenses. ............................................................................ 17
A. This Court should apply the Begay test, as modified by Sykes, when
analyzing the possession of a sawed-off shotgun as a violent felony under
the residual clause. ............................................................................................ 17
B. Possession of an unregistered sawed-off shotgun is a violent felony
because it involves conduct that presents a serious potential risk of injury
to others that is similar in degree and in kind, to the enumerated offenses. ......... 19
1. Possession of an unregistered sawed-off shotgun presents a serious
potential risk of physical injury to another because it is inherently
dangerous. ................................................................................................. 20
2. Possession of an unregistered sawed-off shotgun presents a degree of
risk similar to the enumerated offenses because it serves no lawful
purpose. ..................................................................................................... 21

TABLE OF CONTENTS–Continued
iv
Page
3. Possession of an unregistered sawed-off shotgun is similar to the
enumerated offenses in the kind of risk posed because it serves no
lawful purpose. .......................................................................................... 24
C. Even if this Court were to require “purposeful, violent, and aggressive
conduct,” the possession of an unregistered sawed-off shotgun would still
qualify as a violent felony. ...................................................................................... 27
Conclusion ............................................................................................................................... 28
Appendix .............................................................................................................................. A-1

A. United States Supreme Court Cases
TABLE OF AUTHORITIES
I. Cases
v
Page(s)
Alabama v. White, 496 U.S. 325 (1989) .................................................................................. 14
Begay v. United States, 553 U.S. 137 (2008) ................................................................ 18, 25, 27
Chambers v. United States, 555 U.S. 122 (2009) ..................................................... 21–22, 25, 27
Delaware v. Frouse, 440 U.S. 648 (1979) .................................................................................. 7
Florida v. J.L., 529 U.S. 266 (2000) ........................................................................................ 20
Gall v. United States, 552 U.S. 38 (2007) .................................................................................. 7
Haste v. United States, 553 U.S. 1001 (2008) ........................................................................... 19
James v. United States, 550 U.S. 192 (2007) ................................................................ 21, 23–24
Maryland v. Buie, 494 U.S. 325 (1990) ..................................................................... 8–10, 14–15
Michigan v. Long, 463 U.S. 1032 (1983) ............................................................................. 8–10
Pennsylvania v. Mimms, 434 U.S. 106 (1977) ............................................................................ 9
Staples v. United States, 511 U.S. 600 (1994) .............................................................. 20, 22, 25
Sykes v. United States, 131 S. Ct. 2267 (2011) ........................................................ 18, 21, 24–25
Taylor v. United States, 495 U.S. 575 (1990) ..................................................................... 17, 21
Terry v. Ohio, 392 U.S. 1 (1968) .................................................................................... 8–10, 14
United States v. Drayton, 536 U.S. 194 (2002) ......................................................................... 11
United States v. Knights, 534 U.S. 112 (2001) ........................................................................... 8
United States v. Miller, 307 U.S. 174 (1939) ............................................................................ 21
United States v. Montoya de Hernandez, 473 U.S. 531 (1985) .................................................. 7

TABLE OF AUTHORITIES–Continued
vi
Page(s)
United States v. Sharp, 470 U.S. 675 (1985) .............................................................................. 7
United States v. Sokolow, 490 U.S. 1 (1989) ............................................................................ 14
Wilson v. Arkansas, 514 U.S. 927 (1995) ................................................................................... 7
Wren v. United States, 517 U.S. 806 (1996) ............................................................................. 14
B. United States Court of Appeals Cases
Leaf v. Shulnutt, 400 F.3d 1070 (7th Cir. 2005) ........................................................................ 10
United States v. Allegree, 175 F.3d 648 (8th Cir. 1999) ............................................................ 20
United States v. Chavez, 281 F.3d 479 (5th Cir. 2002) ............................................................... 6
United States v. Daoust, 916 F.2d 757 (1st Cir. 1990) .............................................................. 16
United States v. Doe, 960 F.2d 221 (1st Cir. 2007) ................................................................... 23
United States v. Dunn, 946 F.3d 615 (9th Cir. 1991) ................................................................ 20
United States v. Fortes, 141 F.3d 1 (1st Cir. 1998) .................................................. 20–21, 27–28
United States v. Garcia, 977 F.2d 1273 (9th Cir. 1993) ............................................................ 10
United States v. Gould, 464 F.3d 578 (5th Cir. 2004),
abrogated on other grounds by Kentucky v. King, 131 S. Ct. 1849 (2011) ........ 10–13, 15
United States v. Haste, 292 F. App’x. 249 (4th Cir. 2008) ........................................................ 19
United States v. Hawkins, 554 F.3d 615 (6th Cir. 2009) ........................................................... 19
United States v. Hernandez, 941 F.2d 133 (2d Cir. 1991) ......................................................... 10
United States v. Hinkley, No. 12-1711 (13th Cir. Aug. 2012) ..................................................... 1
United States v. Hood, 628 F.3d 669 (4th Cir. 2010) ................................................................ 18
United States v. Johnson, 170 F.3d 708 (7th Cir. 1999) ............................................................ 11

TABLE OF AUTHORITIES–Continued
vii
Page(s)
United States v. Lillard, 685 F.3d 773 (8th Cir. 2012),
cert. denied, 2013 WL 598580 (Feb. 19, 2013) ............................................................. 20
United States v. Martins, 413 F.3d 139 (1st Cir. 2005) ................................................. 10–11, 13
United States v. McGill, 618 F.3d 1273 (11th Cir. 2010) .......................................................... 26
United States v. Miller, 430 F.3d 93 (2d Cir. 2005) .................................................................. 10
United States v. Patrick, 959 F.2d 991 (D.C. Cir. 1992) ........................................................... 10
United States v. Posnjak, 457 F.2d 1110 (2d Cir. 1972) ........................................................... 26
United States v. Reid, 226 F.3d 1020 (9th Cir. 2000) .......................................................... 10–11
United States v. Robinson, 583 F.3d 1292 (11th Cir. 2009) ........................................................ 7
United States v. Serna, 309 F.3d 859 (5th Cir. 2002) .................................................... 19, 23, 28
United States v. Shaw, 670 F.3d 360 (1st Cir. 2012) ........................................................... .23, 28
United States v. Taylor, 248 F.3d 506 (6th Cir. 2001) ........................................................ 10, 16
United States v. Theunick, 651 F.3d 578 (6th Cir. 2011) .................................................... 19, 28
United States v. Upton, 512 F.3d 394 (7th Cir. 2008) ............................................................... 24
United States v. Vincent, 575 F.3d 820 (8th Cir. 2009) ....................................................... 19, 24
United States v. Waldner, 425 F.3d 514 (8th Cir. 2005) ........................................................... 11
United States v. Watkins, 519 F.2d 294 (D.C. Cir. 1975) .......................................................... 28
United States v. Woodrum, 202 F.3d 1 (1st Cir. 2000) .............................................................. 14
A. Constitutional Provisions
II. Statutes, Constitutional Provisions, Regulations, and Rules
U.S. Const. amend. IV ........................................................................................................... 1, 7

TABLE OF AUTHORITIES–Continued
B. Federal Statutes and Rules
viii
Page(s)
8 U.S.C. § 1101 (2006) .................................................................................................. 1, 25–26
8 U.S.C. § 1228 (2006) ........................................................................................................ 1, 25
18 U.S.C. § 842(i)(1) (2006) ................................................................................................ 1, 26
18 U.S.C. § 844(i) (2006) ................................................................................................... 1, 27
18 U.S.C. § 922(g)(1) (2006) ................................................................................................. 1, 3
Armed Career Criminal Act of 1984, 18 U.S.C. 924(e) (2006) ................................................... 1
18 U.S.C. § 924(e)(1) (2006) .................................................................................... 1, 17
18 U.S.C. § 924(e)(2)(B)(i) (2006) ........................................................................... 1, 17
18 U.S.C. § 924(e)(2)(B)(ii) (2006) ............................................................... 1, 17–18, 24
National Firearms Act-
26 U.S.C. § 5845 (2006) ............................................................................... 1, 18, 23, 26
26 U.S.C. § 5861 (2006) ................................................................................ 1, 18, 25, 28
28 U.S.C § 994(h) (2006) ..................................................................................................... 1, 22
68 Fed. Reg. 75357 (Dec. 30, 2003) ..................................................................................... 1, 23
Fed. R. Crim. P. 11(a)(2) ....................................................................................................... 1, 4
III. Other Authorities
130 Cong. Rec. S13080 (daily ed. Oct. 4, 1984) ....................................................................... 17
Armed Career Criminal Legislation: Hearing on H.R. 4639 and H.R. 4768 before
the Subcommittee on Crime of the House Committee on the Judiciary, 99th
Cong., 2d Sess. (1986) ................................................................................................. 23–24, 27
Model Penal Code § 2.02 (2011) .......................................................................................... 1, 19
National Firearms Act, Hearing Before the H. Comm. on Ways & Means on H.R.
9066, 73rd Cong. 2d Sess. (1934) ................................................................................ 20, 22, 25
U.S. Sentencing Guidelines Manual § 4B1.2 (2009) ................................................................ 22

OPINIONS BELOW
The decision of the Thirteenth Circuit is unreported. United States v. Hinkley, No. 12-
1711 (13th Cir. Aug. 1, 2012). The opinion is set forth on pages 2–11 of the record on appeal. In
the District Court for the District of North Greene, the Convict entered a conditional guilty plea
to being a felon in possession of a firearm, reserving the right to appeal, and was sentenced to
180 months imprisonment. R. at 6.
RELEVANT CONSTITUTIONAL AND STATUTORY PROVISIONS
The following Constitutional, statutory, and regulatory provisions involved in the present
case are set forth in Appendix A: U.S. Const. amend. IV; Armed Career Criminal Act, 18 U.S.C.
§ 924(e); National Firearms Act, 26 U.S.C. § 5845(a) (2006); 26 U.S.C. § 5861 (2006); 8 U.S.C.
§ 1101(a)(43) (2006); 8 U.S.C. § 1228(a)(3) (2006); 18 U.S.C. § 922(g)(1) (2006); 18 U.S.C. §
842(i)(1) (2006); 18 U.S.C. § 844(f) (2006); 28 U.S.C. § 994(h) (2006); Fed. R. Crim. P.
11(a)(2); U.S. Sentencing Guidelines Manual § 4B1.2(a) (2009); U.S. Sentencing Guidelines
Manual § 4B1.2 cmt. n.1 (2009). Model Penal Code § 2.02(5) (2011).
Statement of Facts
STATEMENT OF THE CASE
Roy Hinkley (“Convict”) began his criminal career at age fifteen when the High Point
County Superior Court convicted him of first-degree burglary. R. at 3. The judge sentenced the
Convict to three years of home confinement with electric monitoring. R. at 3. Although the
Convict temporarily became a law abiding citizen, this change was short-lived. R. at 3.
The Convict inherited his uncle’s construction business when his uncle died. R. at 3–4.
In 2007, after his daughter fell ill, the Convict burned down the construction warehouse to
recover the insurance proceeds for his daughter’s medical expenses. R. at 4. The fire
1

investigators quickly determined the fire had multiple points of ignition and found a surveillance
video of the Convict entering the warehouse with a can of gasoline on the day of the fire. R. at 4.
The Convict pled guilty to arson and the judge sentenced him to one year of probation. R. at 4.
After the arson charge, the Convict and his family moved to a lower middle-class
neighborhood. R. at 4. After moving, there were several burglaries on the Convict’s street. R. at
4. A burglar, armed with a semi-automatic handgun, broke into the home two houses down from
the Convict’s home. R. at 4. Even though the Convict was a convicted felon, he convinced a
friend to purchase a shotgun for his personal use. R. at 4–5. The friend obtained a short-barreled,
or sawed-off, shotgun for the Convict. R. at 4–5.
Soon after the Convict obtained the sawed-off shotgun, the Convict heard a commotion
outside of his house and walked outside bearing the sawed-off shotgun. R. at 5. Several police
officers were in the area searching for a burglary suspect. R. at 5. Officer Terrence Sanford
(“Officer”), a former officer with the Bureau of Alcohol, Tobacco, and Firearms, recognized the
Convict’s weapon as a sawed-off shotgun. R. at 5. The Officer knew possession of the weapon
was illegal unless the Convict had registered it pursuant to the National Firearms Act (NFA). R.
at 5. The Officer, upon asking the Convict if the gun was legally registered, learned that the
Convict was a convicted felon and that the weapon was unregistered. R. at 5.
The Convict, facing his third conviction, pled guilty to possession of an unregistered
sawed-off shotgun. R. at 5. In return for his guilty plea, and in light of the Convict’s ill daughter,
the prosecutor graciously offered the Convict ten years of probation, five years of home
monitoring, and no jail time. R. at 5. The Convict accepted the offer. R. at 5.
Two months later, the Convict purchased yet another weapon, a .40 caliber semi-
automatic handgun, after someone broke into the house across the street and murdered his
2

neighbor. R. at 5. Then, on June 1, 2011, there was another neighborhood burglary. R. at 5.
According to the Officer, the description of the burglary suspect matched the description of the
burglar who killed the Convict’s neighbor. R. at 5. The Officer also stated that witnesses saw the
suspect fleeing towards the Convict’s house. R. at 5. The police were going house to house,
ensuring the suspect was not hiding in any neighborhood homes. R. at 5. The Officer came to
the Convict’s house and asked to come inside to ask some questions because it was raining. R. at
5–6. Upon consent, the Officer entered the Convict’s living room. R. at 6.
The Officer, who recognized the Convict from his sawed-off shotgun conviction, was
familiar with the house’s layout and knew that the door directly across the living room led into
the kitchen. R. at 6. The Officer also knew that the house had a backdoor that led from the
kitchen into the backyard. R. at 6.
The Officer was not afraid of the Convict and did not believe the Convict was the
burglar. R. at 6. The Officer, however, was concerned that the burglar may have broken into the
Convict’s house. R. at 6. The Officer asked to look around the house. R. at 6. The Convict
claimed he normally kept his backdoor locked and had not heard or seen anything unusual. R. at
6. The Officer, however, wanted to ensure the burglar had not broken into the Convict’s house
seeking refuge. R. at 6. The Convict did not consent to this sweep, but he also did not rescind his
consent to the Officer’s presence in the house. R. at 6. The Officer then performed a brief
protective sweep as a precautionary measure. R. at 6. When the Officer opened the kitchen door
in search of intruders, he saw the semi-automatic handgun on the kitchen counter. R. at 6. The
Convict was arrested and charged with being a felon in possession of a firearm under 18 U.S.C.
§ 922(g)(1) (2006). R. at 6.
3

Procedural History
On October 1, 2011, the North Greene District Court denied the Convict’s motion to
suppress. R. at 6. On October 15, 2011, the Convict entered a conditional guilty plea pursuant to
Fed. R. Crim. P. 11(a)(2), reserving the right to challenge the denial. R. at 6. On November 1,
2011, the district court sentenced the Convict to 180 months in prison. R. at 6. The Convict filed
a timely notice of appeal, challenging his conviction and his sentence. R. at 6. The Thirteenth
Circuit upheld the conviction, but reversed and remanded the case for resentencing. R. at 6. The
Convict appealed and this Court granted certiorari. R. at 12.
SUMMARY OF THE ARGUMENT
The paramount purpose of Government is to protect its citizens from present and future
danger. Protective sweeps and the Armed Career Criminal Act (ACCA) serve this function.
Protective sweeps dispel threats of present danger. The ACCA prevents threats of future danger.
This Court should hold that (1) non-arrest protective sweeps are reasonable under the Fourth
Amendment, and (2) the possession of an unregistered sawed-off shotgun is a violent felony
under the ACCA.
Under Terry v. Ohio and its progeny, an officer may conduct a carefully limited search
when he reasonably believes the search is necessary to secure the safety of officers or others
nearby. Because the Fourth Amendment standard is reasonableness, safety overrides the warrant
and probable cause requirements. For example, in Terry, this Court upheld an officer’s
protective stop and frisk of a suspect’s outer clothing as reasonable. In Michigan v. Long, this
Court expanded the safety doctrine to uphold a protective automobile search. Finally, in
Maryland v. Buie, this Court upheld a protective sweep, incident to arrest, to protect officer
safety.
4

Since Buie, the majority of circuit courts ruling on this issue have correctly held that
protective sweeps are not limited to arrests. This conclusion is logical because neither Terry nor
Long involved searches incident to arrest. Incorporating Terry, Long, and Buie, the Fifth Circuit
distilled protective sweeps into four elements: (1) the officer must be legally and legitimately on
the premises; (2) the officer must have a reasonable suspicion of danger; (3) the officer must
limit the sweep’s scope; and (4) the officer must limit the sweep’s duration.
This case meets all four elements. First, the Officer was legally and legitimately on the
premises because the officer was searching for a dangerous burglary suspect, and the Convict
gave the Officer permission to enter the house. Second, the officer reasonably suspected danger
because eyewitnesses saw the suspect fleeing in the direction of the Convict’s house. The
suspect had just committed a violent burglary in that neighborhood and matched the description
of someone who had murdered the Convict’s neighbor. Third and fourth, the officer limited both
the scope and duration of the sweep by looking briefly into the kitchen. The Officer’s protective
sweep was reasonable under the safety doctrine, and therefore was reasonable under the Fourth
Amendment.
To protect citizens from future harm, Congress adopted the ACCA, a sentencing
measure to keep violent repeat felons off the street. Under the ACCA’s residual clause, an
offense is a violent felony if “it otherwise involves conduct that presents a serious potential
physical risk of injury to another.” This Court initially interpreted the word “otherwise” to
require a degree of risk similar to any of the statute’s enumerated offenses: burglary, robbery,
arson, or conduct involving the use of explosives. Although this Court later added a “purposeful,
violent, and aggressive conduct” requirement, this Court’s most recent case addressing the
clause narrowed the application of this requirement to strict liability cases and negligent or
5

eckless conduct. Other felony offenses, therefore, qualify as a predicate violent felony if there
is a serious potential risk of physical injury to another that is similar in degree, and in kind, to
one of the four enumerated offenses.
Felony possession of an unregistered sawed-off shotgun qualifies as a violent felony
under the residual clause because it involves conduct that presents a serious potential risk of
physical injury to another and the degree of risk involved exceeds that of the enumerated
offenses. The design of the weapon is not for hunting or sport, but rather for inflicting serious
harm to others. This is why this Court and Congress consider these weapons inherently
dangerous. Further, they serve no lawful purpose. Congress, in passing the National Firearms
Act, presumed the unwillingness to register these weapons meant the possessor was inclined to
use it against others. This predisposition toward violence is a much greater risk of injury to
others than simple burglary. This offense in not a strict liability crime and requires knowledge of
possession, a higher level of mens rea than mere negligence or recklessness. Therefore, this
Court need not analyze the offense for purposeful, violent, and aggressive conduct. Even if
analyzed, however, this offense would still qualify because its lack of a lawful purpose indicates
that typically, the weapon is possessed for future harmful use. Because possession of a sawed-
off shotgun is inherently dangerous, has no lawful purpose, and requires registration due to its
close association with violent criminal activity, it is a predicate violent felony under the ACCA.
STANDARD OF REVIEW
Courts review motions to suppress under a mixed standard of review. United States v.
Chavez, 281 F.3d 479, 483 (5th Cir. 2002). Courts review factual findings for clear error and
legal findings de novo. Id. Additionally, Courts view the evidence in the “light most favorable”
to the party that won in the district court. Id.
6

District Court sentences are reviewed for reasonableness under the abuse of discretion
standard. Gall v. United States, 552 U.S. 38, 51 (2007). Whether an offense is a violent felony
under the ACCA, however, is reviewed de novo. United States v. Robinson, 583 F.3d 1292,
1294 (11th Cir. 2009).
ARGUMENT
The Government faces the extraordinary burden of protecting its citizens from present
and future danger. Both protective sweeps and the Armed Career Criminal Act (ACCA) serve
this essential government function. Protective sweeps allow law enforcement officers to dispel
threats of present danger. The ACCA prevents future harm by incarcerating certain repeat
offenders. This Court should affirm the Thirteenth Circuit’s denial of the Convict’s motion to
suppress and hold that non-arrest protective sweeps are reasonable because these limited
encounters protect both citizens and officers. This Court should also reverse the Thirteenth
Circuit’s sentence and hold that possession of an unregistered sawed-off shotgun is a violent
felony under the ACCA because it indicates the possessor is likely to cause future harm.
I. The Thirteenth Circuit correctly denied the Convict’s motion, as a matter of law,
because officers should be permitted to perform protective sweeps when the officer
is legally on the premises and has reasonable suspicion of an unknown danger.
The Fourth Amendment only prohibits “unreasonable searches and seizures.” U.S.
Const. amend. IV. It is not, therefore, “a guarantee against all searches and seizures.” United
States v. Sharp, 470 U.S. 675, 682 (1985). When evaluating the reasonableness of a search, this
Court considers the nature and circumstances of the Fourth Amendment intrusion, United States
v. Montoya de Hernandez, 473 U.S. 531, 537 (1985), and balances the intrusion against
“legitimate government interests,” Delaware v. Frouse, 440 U.S. 648, 554 (1979). This
reasonableness standard is “flexible.” Wilson v. Arkansas, 514 U.S. 927, 934 (1995).
7

The three seminal rulings governing this case are Terry v. Ohio, 392 U.S. 1 (1968),
Michigan v. Long, 463 U.S. 1032 (1983), and Maryland v. Buie, 494 U.S. 325 (1990). In all
three cases, this Court held that a protective search was reasonable. Buie, 494 U.S. at 332; Long,
463 U.S. at 1049–1050; Terry, 392 U.S. at 21. This Court based its decisions on the officers’
reasonable belief that they or others nearby were in danger. Buie, 494 U.S. at 334, Long, 463
U.S. at 1050; Terry, 392 U.S. at 30. This Court should uphold the Thirteenth Circuit’s decision
because (1) the Fourth Amendment’s reasonableness standard permits protective sweeps when
officers or bystanders are in danger, and (2) the Officer performed a reasonable protective
sweep.
A. This Court should hold the Officer’s non-arrest protective sweep was permissible
because Terry and its progeny allow officers to take safety measures when there is
reasonable suspicion of danger.
While the Fourth Amendment normally requires officers, prior to a search, to obtain a
warrant backed by probable cause, this Court has recognized several exceptions to this general
provision. See, e.g., United States v. Knights, 534 U.S. 112, 118–19 (2001) (noting, in a home
search not incident to arrest, courts must balance the intrusion against the individual with the
government’s interests). Most notably, through Terry v. Ohio and its progeny, this Court
recognizes warrant exceptions when the safety of law enforcement officers and others nearby is
in jeopardy. See, e.g., Terry, 392 U.S. at 21. This officer safety rationale is the foundation for
the reasonableness of protective sweeps, including those that officers perform in non-arrest
home situations.
8

1. Terry’s officer safety logic encompasses non-arrest protective sweeps because
the Fourth Amendment’s reasonableness standard permits officers to take
reasonable safety measures.
In Terry, this Court held an officer’s need to perform a protective stop and frisk
outweighed the Fourth Amendment intrusion on the individual. Id. at 24. A stop and frisk occurs
when officers briefly search a suspect’s “outer clothing” for weapons to protect themselves or
“others nearby.” Id. at 30. This Court allows these limited searches, which are not subject to the
warrant requirement, as long as the officer has a reasonable suspicion of danger. Id.
Fifteen years later, this Court expanded Terry’s safety rationale. In Michigan v. Long,
this Court held that, under Terry, it is reasonable for an officer, without a warrant, to
protectively search the passenger compartment of a vehicle. 463 U.S. at 1049–50 (quoting
Terry, 392 U.S. at 27); see also Pennsylvania v. Mimms, 434 U.S. 106, 111 (1977)
(“[I]nconvenience cannot prevail . . . against . . . concerns for the officer’s safety.”). In Long, as
in Terry, this Court found that protecting safety outweighed the Fourth Amendment intrusion.
Long, 463 U.S. at 1051. The Long Court, “[i]n a sense, . . . authorized a ‘frisk’ of an automobile
for weapons.” Buie, 494 U.S. at 332. Terry’s logic, therefore, is broader than the protective stop
and frisk, as interpreted in Long, and allows reasonable protective searches whenever officers
objectively believe they are in danger. Long, 463 U.S. at 1050 (quoting Terry, 392 U.S. at 27)
(“[T]he issue is whether a reasonably prudent man in the circumstances would be warranted in
the belief that his safety or that of others was in danger.”).
In Maryland v. Buie, this Court expanded Terry one step further. Buie, 464 U.S. at 332–
33. Under Buie, an officer may perform a protective sweep, or “a quick and limited search of
[the] premises, incident to an arrest, and conducted to protect the safety of police officers or
others.” Id. at 327, 337. Relying on Terry and Long, this Court again held the Fourth
9

Amendment intrusion was outweighed by the paramount interest in safety. Id. at 334. Buie
emphasized the arrest, but only, as the Fifth Circuit explained, “because the arrest exposed the
officers to danger.” United States v. Gould, 364 F.3d 578, 581 (5th Cir. 2004), abrogated on
other grounds by Kentucky v. King, 131 S. Ct. 1849 (2011).
Terry, Long, and Buie all suggest that a protective search is reasonable when an officer
can point to “specific and articulable facts which . . . reasonably warrant” a conclusion that the
officer or others are in danger. Buie, 494 U.S. at 327; Long, 463 U.S. at 1049; Terry, 392 U.S. at
21. In all three cases, this Court performed the Fourth Amendment balancing test and held that
the safety interest outweighed the Fourth Amendment intrusion. See Buie, 494 U.S. at 332–33
(“[O]fficers were entitled to . . . search” because “[t]he ingredients to apply the balance struck in
Terry and Long are present in this case.”). The majority of circuits correctly apply the same
reasoning and hold that safety outweighs the Fourth Amendment intrusion in non-arrest
protective sweeps. See, e.g., United States v. Hernandez, 941 F.2d 133, 135–36 (2d Cir. 1991)
(noting this Court applied the same balancing test in Terry, Long, and Buie).
2. This Court should uphold the majority circuits’ broad construction of Terry,
Long, and Buie by upholding protective searches when officers reasonably
suspect danger.
The First, Second, Fifth, Sixth, Seventh, and D.C. Circuits have all upheld the
reasonableness of non-arrest protective sweeps, along with one panel of the Ninth Circuit. See,
e.g., Leaf v. Shulnutt, 400 F.3d 1070, 1086–88 (7th Cir. 2005); United States v. Martins, 413
F.3d 139, 150 (1st Cir. 2005); Gould, 364 F.3d at 581; United States v. Miller, 430 F.3d 93, 95
(2d Cir. 2005); United States v. Taylor, 248 F.3d 506, 513–14 (6th Cir. 2001); United States v.
Garcia, 997 F.2d 1273, 1282 (9th Cir. 1993); United States v. Patrick, 959 F.2d 991, 996–97
(D.C. Cir. 1992); contra United States v. Reid, 226 F.3d 1020, 1027 (9th Cir. 2000).
10

These circuits recognize it is irrational to allow officers to conduct a protective sweep
pursuant to an arrest warrant, while prohibiting such sweeps when the officer is otherwise
legally on the premises. See, e.g., Martins, 413 F.3d at 150 (noting that the crucial point of Buie
was not why the officers were in the home, but “the reasonableness of the belief that the
officers’ safety or the safety of others may be at risk”). Additionally, the Fifth Circuit noted that
in Terry and Long, this Court upheld protective searches in non-arrest situations. Gould, 364
F.3d at 584.
The Fifth Circuit distilled this Court’s authority into four elements. Protective sweeps are
reasonable when: (1) the officer is legally and legitimately on the premises; (2) the officer has a
reasonable suspicion of danger; (3) the officer limits the sweep’s scope; and (4) the officer limits
the sweep’s duration. Gould, 364 F.3d at 582.
3. The minority circuits incorrectly apply Buie because they wrongly view Buie as
an isolated justification for protective sweeps.
Only the Seventh and Eighth Circuits, along with one Ninth Circuit panel have limited
Buie strictly to its unique facts, concluding that protective sweeps must be incident to arrest.
United States v. Waldner, 425 F.3d 514, 517 (8th Cir. 2005); Reid, 226 F.3d at 1027; United
States v. Johnson, 170 F.3d 708, 716 (7th Cir. 1999). Such a limitation creates a per se rule and,
“for the most part, per se rules are inappropriate in the Fourth Amendment context.” United
States v. Drayton, 536 U.S. 194, 201 (2002).
More importantly, this minority rule undermines the Fourth Amendment’s
reasonableness standard and places the lives of policemen and others nearby at risk. This Court
should not sacrifice the safety, and possibly the lives, of police officers and others nearby in
favor of an arrest warrant, especially when the Fourth Amendment is built on a foundation of
reasonableness. Even during consensual entries, protective sweeps would not allow officers to
11

go on unlimited fishing expeditions. Protective sweeps only allow officers to perform limited,
cursory searches based on a reasonable suspicion of danger. Limiting protective sweeps to
arrests would force officers to choose between performing their job and exposing themselves
and others to danger. It is unreasonable to prevent an officer from protecting his safety, as well
as the safety of others, simply because he is legally on the premises, but for the wrong reason.
B. The Officer’s protective sweep was reasonable because the Officer was legally on
the premises, the Officer had reasonable suspicion of an unknown danger, and the
Officer limited the sweep in both scope and duration.
Consistent with the majority rule on this issue, the Thirteenth Circuit correctly held the
Officer’s non-arrest protective sweep was reasonable. R. at 11. Under the Fifth Circuit’s
distillation of protective sweeps, (1) the Officer was legally on the premises for a legitimate
reason, (2) the Officer had reasonable suspicion that there was an unknown danger, and (3) the
Officer limited the sweep in scope and (4) duration.
1. The Officer was legally on the Convict’s premises for a legitimate law
enforcement purpose because the Convict consented to the Officer’s presence in
the home and the Officer was securing the Convict’s neighborhood following a
burglary.
The Fifth Circuit noted that this Court focused on the arrest in Buie because the arrest
exposed the officer to danger and justified his presence on the premise. Gould, 364 F.3d at 581.
Thus, for a protective sweep to be reasonable, the officer must be legally on the premises for a
legitimate reason. Id. at 587 (commenting that this is at least implied in Buie).
The Fifth Circuit held a protective sweep was reasonable when officers, in search of a
dangerous suspect, entered a home pursuant to consent. Id. at 588–90, 593. In United States v.
Gould, a suspect threatened to kill two federal judges. Id. at 580. During the search, the officers
went to the suspect’s home and the suspect’s housemate allowed the officers inside. Id. at 588–
89. The housemate did not have the authority to consent to a full search of the suspect’s
12

edroom, but the officers performed a protective sweep of the room to ensure their safety. Id. at
589–90 (holding a sweep is reasonable even when “initial entry to the home [is] pursuant to
consent” and the “consent does not of itself legally authorize the entry into the area swept”). The
Fifth Circuit understood that if the officers had waited to obtain a warrant before sweeping the
room, the suspect could have harmed another individual. Id. at 590.
The First Circuit has similarly upheld non-arrest protective sweeps when officers are
pursuing a dangerous suspect. For example, the First Circuit held a protective sweep was
reasonable when an officer entered an apartment while investigating a shooting. Martins, 413
F.3d at 144–45, 150 (“[The] inference of danger was much more real and immediate than a
generic fear.”). The shooting took place only one hundred yards from the apartment in a gang-
populated area. Id. at 144. Additionally, one of the suspects ran into the apartment complex,
although the suspect did not live in the apartment. Id.
Here, the Officer was also legally on the premises for a legitimate reason. Just like the
officer in Gould, the Officer entered the home only after an occupant allowed him inside. R. at
6. While the Officer did not have the authority to fully search the kitchen, R. at 6, performing a
protective sweep was an imperative safety measure, as it was in Gould. A violent neighborhood
burglary had just occurred. R. at 5. Because of this burglary, the Officer was searching for a
dangerous suspect, just like the officers in Gould and Martins. R. at 5–6.
The threat the burglary suspect posed, as in Martins, was “real and immediate.” 413 F.3d
at 150. The burglar matched the description of the burglar who murdered the Convict’s
neighbor, and witnesses had seen the suspect fleeing towards the Convict’s home. R. at 5. As in
Martins, where the officer pursued a dangerous criminal into an apartment complex, the Officer
was assisting in the systematic pursuit of this dangerous burglary suspect. R. at 5. If the Officer
13

had waited for a search warrant to perform the protective sweep, the burglary suspect may have
harmed the Convict. Thus, the Officer was legally on the premises pursuant to consent while
protecting the neighborhood from a dangerous criminal suspect.
2. The Officer had reasonable suspicion that a dangerous individual was on the
premises because witnesses had seen the burglar fleeing in the direction of the
Convict’s house and the Convict had a known criminal past.
This Court applies Terry’s reasonable suspicion standard to protective sweeps. Buie, 494
U.S. at 334. An officer has reasonable suspicion if he reasonably believes his safety or that of
others is in danger, particularly, in a protective sweep, if that danger is unseen. Buie, 494 U.S. at
328, 334 (holding there was reasonable suspicion of an unknown danger after the suspect
surrendered himself and an officer searched the basement “in case there was someone else down
there”); see also Terry, 392 U.S. at 27 (defining reasonable suspicion of danger in general).
While reasonable suspicion is more than an “inchoate and unparticularized suspicion or
hunch,” United States v. Sokolow, 490 U.S. 1, 7 (1989), it is “considerably less than . . . a
preponderance of the evidence,” Alabama v. White, 496 U.S. 325, 330 (1990); see also Terry,
392 U.S. at 5 (finding a veteran officer of 39 years had reasonable suspicion, even though the
officer had never seen the two suspects before and could not articulate why he suspected them).
Finally, reasonable suspicion is an objective standard, meaning this Court does not consider an
officer’s subjective motives. Whren v. United States, 517 U.S. 806, 812 (1996). The First Circuit
further explained that courts give deference to the “street-wise judgments of experienced . . .
officers” and reasonable suspicion has a “commonsense” aspect. United States v. Woodrum, 202
F.3d 1, 7–8 (2000) (noting in dicta that an officer may have reasonable suspicion because a
person was “slouching” in the back seat of a vehicle).
14

Here, a reasonable person would believe that the Convict and his neighbors nearby were
in danger. An armed burglary had just occurred in the Convict’s neighborhood and the
witnesses’ description of the burglar matched the description of the person who killed the
Convict’s neighbor. R. at 5. Further, the witnesses saw the suspect fleeing through the
neighborhood towards the Convict’s house. R. at 5. Unlike the officer in Terry, who had never
seen the two suspects before, the Officer possessed matching descriptions of the burglar and
murderer. R. at 5. Additionally, much like the experienced officer in Terry, the Officer has been
with the police force since at least 2008 and has experience working in this neighborhood. R. at
5. In addition, the Officer believed the threat was dangerous enough that he had to ensure the
burglar did not break in or take refuge in the home. R. at 6. While the Convict claimed he had
not heard or seen anything out of the ordinary, the Convict may have either been unaware of the
burglar’s presence, or may have been harboring the burglar for reasons connected to his known
criminal past. R. at 3–5. The Officer, therefore, had reasonable suspicion that the burglar might
harm the Convict or his neighbors.
3. The Officer limited the sweep in scope and duration because the Officer looked
briefly into an adjoining room and not into a sensitive area of the house.
A protective sweep is a “quick and limited search of the premises.” Buie, 494 U.S.
at 327. During such a sweep, an officer is permitted to search places within the house that a
dangerous person may be hiding. Id. In addition, an officer may search until he “dispel[s] the
reasonable suspicion of danger.” Id. at 335.
The circuits have broadly interpreted the places where a person may be hiding. See, e.g.,
Gould, 364 F.3d at 589. For example, in Gould, the Fifth Circuit found that a protective sweep
of a bedroom was limited in scope and duration when the officers swept under the bed and
inside the closets. Id. at 589, 593 (noting that the sweep was “brief” and “minimally intrusive”).
15

The First Circuit found a protective sweep was reasonable when officers performed a “thirty-
second ‘protective sweep’ of several rooms inside the house.” United States v. Daoust, 916 F.2d
757, 758 (1st Cir. 1990). Finally, the Sixth Circuit held a protective sweep was reasonable when
police officers swept an entire apartment, including the bathtub, behind the shower curtain, and
in a closet. Taylor, 248 F.3d at 510. In these examples, the circuits have all held the protective
sweeps to be reasonable, despite the sensitive places the officers swept.
Here, the Officer opened the Convict’s kitchen door and briefly looked inside. R. at 6.
Compared to looking under a bed, in a closet, or behind a shower curtain, this is a limited
sweep. Additionally, the Officer was familiar with the layout of the house. R. at 6. He knew
where the kitchen was located and that it had a back door leading outside. R. at 6. While the
Convict did not hear anyone enter through the backdoor, the Officer simply wanted to ensure the
Convict’s safety and confirm that the burglar was not hiding in the house. R. at 6. The protective
sweep, therefore, was limited in both scope and duration.
This Court should uphold the Thirteenth Circuit’s ruling. Under Terry and its progeny,
carefully limited protective sweeps are reasonable whenever an officer objectively believes a
sweep is necessary to protect himself or others. The Officer performed a reasonable protective
sweep because he was legally and legitimately on the premises; he reasonably suspected danger
because witnesses had seen the burglar fleeing in the direction of the Convict’s home; and he
limited the sweep in both scope and duration.
16

II. The Thirteenth Circuit erred, as a matter of law, by not holding that possession of
an unregistered sawed-off shotgun is a violent felony under the ACCA because such
possession involves conduct that presents a serious potential risk of physical injury
to another that is similar in degree, and in kind, to the enumerated offenses.
While most criminal laws punish offenders for their actions, the ACCA serves a different
purpose. See 130 Cong. Rec. S13080 (daily ed. Oct. 4, 1984) (statement of Sen. Arlen Specter)
(announcing the bill’s purpose is to provide stiffer sentences for career criminals). The ACCA
makes society safer by incarcerating offenders who, based on their criminal history, demonstrate
a continued threat to the safety of others. Id. Under the ACCA, any person convicted of three or
more “violent felonies” and later found in possession of a gun is sentenced to a minimum of
fifteen years in prison. 18 U.S.C. § 924(e)(1) (2006). Under the ACCA, a “violent felony”
includes “any crime that is punishable by imprisonment for more than one year that . . . is
burglary, arson, or extortion, involves the use of explosives, or otherwise involves conduct that
presents a serious potential risk of physical injury to another.” Id. § 924(e)(2)(B)(ii) (2006). In
determining whether possession of an unregistered sawed-off shotgun is a violent felony, the
Thirteenth Circuit correctly narrowed its analysis to the residual clause. R. at 9. Possession of a
unregistered sawed-off shotgun does not qualify under § 924(e)(2)(B)(i) and is not one of the
enumerated offenses in § 924(e)(2)(B)(ii). Id. This Court, however, should hold that such
possession is a violent felony under the residual clause because it “involve[s] conduct that
presents a serious potential risk of physical injury to another.” Id.
A. This Court should apply the Begay test, as modified by Sykes, when analyzing the
possession of a sawed-off shotgun as a violent felony under the residual clause.
Courts examine the elements of an offense, rather than the facts of a conviction, to
determine if the offense is included under the residual provision. Taylor v. United States, 495
U.S. 575, 600 (1990). In Begay v. United States, this Court developed a two prong test to
17

determine whether an offense qualifies as a violent felony under the residual clause. Begay v.
United States, 553 U.S. 137, 143 (2008). Under this test, an offense is a violent felony if (1) the
conduct involved presents a serious potential physical risk of injury to another that is (2) similar
in kind and degree to the enumerated offenses. Id. This Court determined that a DUI conviction,
a strict liability offense, did not qualify because it lacked the violent and aggressive nature of the
enumerated offenses and was, therefore, not similar in the kind of risk it posed. Id. at 148.
Subsequently, a number of circuit courts have concluded that, under Begay, violent
felonies must be purposeful, violent, and aggressive. See, e.g., United States v. Hood, 628 F.3d
669, 671 (4th Cir. 2010) (applying these requirements under similar sentencing guidelines). In
Sykes v. United States, however, this Court clarified that the “purposeful, violent, and
aggressive” conduct requirement only applies to strict liability offenses and offenses requiring
negligent or reckless conduct. Sykes v. United States, 131 S. Ct. 2267, 2276 (2011).
Here, the Convict was convicted under 26 U.S.C. § 5861(d), a provision of the National
Firearms Act (NFA) that prohibits the unregistered possession of “firearms,” as defined in 26
U.S.C. § 5845. R. at 5; 26 U.S.C. § 5861(d) (1986). The term “firearm” under the NFA does not
refer to firearms generally, but to a subset of weapons, which includes sawed-off shotguns,
machine guns, silencers and certain explosives. 26 U.S.C. § 5845(a). A person unlawfully
possesses a firearm if (1) the weapon meets the NFA definition of a firearm; (2) the weapon
lacks registration in the National Firearms Registration and Transfer Record; and (3) the person
possesses the weapon. § 5861(d).
The first two elements of the offense relate to circumstances and are irrelevant because
they do not affect the mens rea of a conduct element. § 924(e)(2)(b)(ii) (examining the potential
risk of conduct). The mens rea for the conduct element of “possession” is greater than
18

negligence or recklessness because violations of 26 U.S.C. § 5861 require someone to
knowingly possess an unregistered firearm. United States v. Theunick, 651 F.3d 578, 586 (6th
Cir. 2011) (“26 U.S.C. § 5861(d) prohibits knowing possession of an NFA firearm not
registered to the person in possession.”); United States v. Serna, 309 F.3d 859, 864 (5th Cir.
2002) (noting possession is conduct). Because knowledge entails a higher level of mens rea than
negligence or recklessness, this offense does not need to be “purposeful, violent, and
aggressive.” See Model Penal Code § 2.02(5) (2011) (ranking the different levels of mens rea).
For these reasons, this Court should use the Begay test, without regard to whether the conduct of
possession is “purposeful, violent, and aggressive.”
B. Possession of an unregistered sawed-off shotgun is a violent felony because it
involves conduct that presents a serious potential risk of injury to others that is
similar in degree, and in kind, to the enumerated offenses.
In light of Begay, this Court reversed and remanded a Fourth Circuit case that held the
unlawful possession of a sawed-off shotgun under state law is a violent felony. Haste v. United
States, 553 U.S. 1001, 1001 (2008). In response, the Fourth Circuit, without providing analysis,
issued a per curiam decision holding that, in light of Begay, the possession of an unlawful
sawed-off shotgun was not a violent felony under the ACCA. United States v. Haste, 292 F.
App’x. 249, 250 (4th Cir. 2008). Following the Fourth Circuit’s lead, other courts have held
similarly, choosing instead to sentence under a similar provision in the United States Sentencing
Guidelines (USSG). See, e.g., United States v. Hawkins, 554 F.3d 615, 616–17 (6th Cir. 2009)
(sentencing under the USSG rather than ACCA although their residual clauses are the same).
The Eighth Circuit, however, also addressed the issue on remand from this Court, and
using the Begay test held that possession of a sawed-off shotgun is a violent felony under the
ACCA. United States v. Vincent, 575 F.3d 820, 827 (8th Cir. 2009). Recently, the Eighth Circuit
19

eexamined the same issue in light of the Sykes v. United States modification to the Begay test,
and again held that the possession of an unregistered sawed-off shotgun is a violent felony.
United States v. Lillard, 685 F.3d 773, 777 (8th Cir. 2012), cert denied, 2013 WL 598580 at *1
(Feb. 19, 2013). That court concluded that the offense involves conduct that presents a serious
potential risk of physical injury to others that is similar in degree and in kind to the enumerated
offenses. Id.
1. Possession of an unregistered sawed-off shotgun presents a serious potential risk
of physical injury to another because it is inherently dangerous.
The circuit courts generally agree that a sawed-off shotgun is inherently dangerous. See,
e.g., United States v. Dunn, 946 F.2d 615, 621 (9th Cir. 1991) (noting that Congress only
requires registration for weapons it has “found to be inherently dangerous and generally lacking
usefulness, except for violent and criminal purposes, such as sawed-off shotguns and hand
grenades”); United States v. Allegree, 175 F.3d 648, 651 (8th Cir. 1999); United States v.
Fortes, 141 F.3d 1, 7 (1st Cir. 1998); see also National Firearms Act: Hearing Before the H.
Comm. On Ways and Means on H.R. 9066 73rd Cong., 2d Sess. 111 (1934) (NFA Hearing)
(quoting Attorney General Cummings that “a sawed-off shotgun is one of the most dangerous
and deadly weapons”).
Applying this Court’s weapons analysis, sawed-off shotguns are dangerous. For
example, this Court found a grenade, an NFA weapon, was “particularly dangerous” because it
fit within § 5845’s definition of a firearm. Staples v. United States, 511 U.S. 600, 609 (1994).
This Court finds NFA firearms dangerous enough to warrant greater law enforcement
investigation. See Florida v. J.L., 529 U.S. 266, 273–74 (2000) (indicating an anonymous tip
does not have to be overly reliable to justify a search when a bomb, an NFA weapon, is
involved). Further, this Court has not given the possession of sawed-off shotguns Second
20

Amendment protection. United States v. Miller, 307 U.S. 174, 177 (1939) (“[W]e cannot say
that the Second Amendment guarantees the right to keep and bear such an instrument.”).
Because the overwhelming weight of authority indicates the inherent dangerousness of § 5845
firearms, including sawed-off shotguns, this Court should conclude the possession of it presents
a serious potential risk of injury to others.
2. Possession of an unregistered sawed-off shotgun presents a degree of risk
similar to the enumerated offenses because it serves no lawful purpose.
“In general, levels of risk divide crimes that qualify [under the residual clause] from
those that do not.” Sykes, 131 S. Ct. at 2275 (citing James v. United States, 550 U.S. 192
(2006)). To qualify as a violent felony, a crime’s level of risk does not have to be as great as an
enumerated offense. James, 550 U.S. at 209. Rather, this Court only requires a minimal degree
of risk. Id. at 207–08 (“Congress intended to encompass possibilities even more contingent or
remote than simple ‘risk,’ much less certainty.”). When the offense is not analogous to an
enumerated offense, this Court uses other methods to assess the degree of risk such as intuition,
statistics, legislative history, and other persuasive authorities. Chambers v. United States, 550
U.S. 122, 129 (2009) (acknowledging that intuition and a report from the United States
Sentencing Commission (USSC) supported a level of risk determination); Sykes, 131 S. Ct. at
2274 (stating that, while statistics are not “dispositive,” they can confirm “commonsense
conclusion[s]”); Taylor, 495 U.S. at 597 (performing a historical analysis); James, 550 U.S. at
206 (using the USSC Guidelines as persuasive authority).
Legislative history, the United States Sentencing Guidelines, and intuition all indicate
that the degree of risk associated with possession of a sawed-off shotgun is at least as high as the
enumerated offenses. Because the legislature found this weapon has no lawful purpose, it is fair
to presume that possession of the weapon creates more than a potential risk of harm. Fortes, 141
21

F.3d at 7 (commenting that Congress found § 5845 weapons “lacking in lawful purposes”);
Staples, 511 U.S. at 626 (Stevens, J., dissenting) (“Congress therefore could reasonably presume
that a person found in possession of an unregistered machinegun or sawed-off shotgun intended
to use it for criminal purposes.”).
Since the creation of the National Firearms Act in 1934, Congress has viewed the
possession of a sawed-off shotgun as a reliable predictor of future violence. See NFA Hearing at
111 (Statement of Congressman Fuller) (“If a man is carrying that type of weapon, . . . he ought
to be taken into custody anyway, because we know he is carrying it for an unlawful purpose; I
am referring to such a weapon as a sawed-off shotgun or machinegun, or a silencer.”).
The United States Sentencing Guidelines also serve as persuasive authority that the
possession of an unregistered sawed-off shotgun is a violent felony. Under congressional
mandate, the USSC drafted a sentencing guide section addressing armed career criminals. 28
U.S.C. § 994(h) (2006). The guideline refers to crimes of violence rather than violent felonies,
but includes a residual clause that mirrors the ACCA. U.S. Sentencing Guidelines Manual §
4B1.2 (2009). Although the ACCA’s definition of violent felony and the USSC Guidelines
definition of “crimes of violence” are similar, the Commission’s predicate felony determinations
do not bind this Court. James, 550 U.S. at 207. Nevertheless, this Court is justified in turning to
the Commission for guidance when applying the ACCA’s provisions. See id. (basing the holding
in part on the USSC having reached a similar conclusion); Chambers, 555 U.S. at 129 (using
research conducted by the Commission to assess risk). This Court, in James v. United States,
relied on the Sentencing Commission because the Commission “is better able than any
individual court to make an informed judgment about the relationship between a particular
22

offense and the likelihood of accompanying criminal violence.” James, 550 U.S. at 206 (internal
quotations omitted) (quoting United States v. Doe, 960 F.2d 221, 225 (1st Cir. 2007)).
In 2003, the USSC amended Application Note 1 of § 4B1.2, the section which mirrors
the ACCA, to include the possession of a sawed-off shotgun within the definition of “crime of
violence.” 68 Fed. Reg. 75357 (Dec. 30, 2003); § 4B1.2 cmt. n.1 (“Unlawfully possessing a
firearm that is of a type described in 26 U.S.C. [§] 5845(a) (e.g., a sawed-off shotgun, silencer,
or machine gun) is a ‘crime of violence.’’’). Because the USSC is able to make a well-informed
decision on this issue and has concluded that the possession of an unregistered sawed-off
shotgun is a crime of violence under a residual clause identical to and enacted for the same
purpose as the ACCA, this Court should consider it as strong evidence that the same offense is a
violent felony under the ACCA. Further, “the Fourth, [Fifth,] Seventh, Eighth, and Ninth
Circuits each have found that, because it is primarily used for violent purposes, possession of a
sawed-off shotgun presents a serious potential risk of physical injury and therefore constitutes a
‘crime of violence’ under an identical residual clause in the United States Sentencing
Guidelines. Serna, 309 F.3d at 863 (citing the applicable cases).
Likewise, intuition suggests the degree of risk in unlawful possession of a sawed-off
shotgun is greater than some of the enumerated offenses. “Even a city dweller who watches
television or reads newspapers would know the reputation of [a sawed-off shotgun].” United
States v. Shaw, 670 F.3d 360, 369 (1st Cir. 2012). In James, this Court explained that the
potential of risk a burglary will result in actual harm is small. 550 U.S. at 207. This Court has
also recognized that certain offenses, which categorically fit within the enumerated offense of
extortion, such as blackmail, present almost no risk of resulting in physical injury. Id. at 208; see
also Armed Career Criminal Legislation: Hearing on H.R. 4639 and H.R. 4768 Before the
23

Subcommittee on Crime of the House Committee on the Judiciary, 99th Cong., 2d Sess., 40
(1986) (House Hearing) (noting Congressman Smith’s suggestion to limit extortion because
blackmail and the threat of slander present virtually no risk of physical violence). Conversely,
the physical design of a sawed-off shotgun demonstrates the degree of risk it poses. United
States v. Upton, 512 F.3d 394, 404 (7th Cir. 2008) (“[T]he shortened barrel . . . increases the
spread of the shot when fired at close range—[a fact] that spurred Congress to require
registration.”). The Eighth Circuit held that it was capable of producing “indiscriminate
carnage” similar to an explosive. Vincent, 575 F.3d at 826. The possession of a sawed-off
shotgun, therefore, produces at least a similar degree of risk as the enumerated offenses.
3. Possession of an unregistered sawed-off shotgun is similar to the enumerated
offenses in the kind of risk posed because it serves no lawful purpose.
To qualify as a violent felony, an offense does not need to be violent per se; rather, it
must “involve conduct that presents a serious potential risk of physical injury.” § 924
(e)(2)(B)(ii). The enumerated offenses present a risk of harm only when the Court considers
other common variables. See James, 550 U.S. at 203. For example, neither burglary nor
attempted burglary requires a demonstration of violence; however, both burglary and attempted
burglary involve the risk of confrontation that can result in violence. Id. The risk of violence,
therefore, depends upon whether there is an encounter. Id. at 204. Likewise, arson does not
require a showing of violence; rather, it is the presence of others nearby that creates the risk. Id.
at 200 (“[T]he fire could harm firefighters and onlookers.”).
In Sykes, this Court reasoned that vehicle flights meet the requisite kind of risk because
officers are always present during the encounter and the fleeing felon can use the vehicle to
cause physical injury to the officer. Sykes, 131 S. Ct. at 2274. Similarly, officers who encounter
individuals with unregistered weapons face the risk that the offender will use the weapon to
24

cause physical injury. Unlike Chambers v. United States, where this Court held that failing to
report to prison is not a violent felony merely because the felon might be doing something that
poses a risk of injury to others, 555 U.S. at 128, possession of an unregistered sawed-off
shotgun poses a continuous risk of injury because an officer can show up at any minute.
In Begay, this Court stressed the importance of identifying offenses that not only reveal
callousness toward risk, but also show an increased likelihood that the offender is the kind of
person who might deliberately harm another. 553 U.S. at 146, 148. The NFA was purposefully
limited to a “narrow category of weapons such as submachineguns (sic) and sawed-off
shotguns.” Staples, 511 U.S. at 626 (1994) (Stevens, J., dissenting). These were the weapons
characteristically used only by professional gangsters like Al Capone, Pretty Boy Floyd, and
their henchman. Id. Congress could therefore, “reasonably presume that a person in possession
of an unregistered machinegun or sawed-off shotgun intended to use it for criminal purposes.”
NFA Hearing at 113 (noting that by including only machine guns and sawed-off shotguns,
“Congress will have done all that can be done to assist the States in the suppression of
felonies.”). Sawed-off shotguns are indicative of future violent crimes, as the hearing suggests,
and possession of a sawed-off shotgun is the kind of risk Begay stresses should be a “violent
felony” under the ACCA. Begay, 553 U.S. at 1587. Indeed, it is this type of crime that “is
characteristic of the armed career criminal.” Sykes, 131 S. Ct. at 2289.
Similarly, Congress determined that possession of an unregistered sawed-off shotgun is
so grievous it is also considered an “aggravated felony” under 8 U.S.C. § 1101 (2006 & Supp.
2012) (incorporating by reference 26 U.S.C § 5861). Other offenses in this provision include
murder, rape, sexual abuse of a minor, robbery, and other crimes of violence. Id. The aggravated
status of these crimes provides for the expedited removal of aliens. 8 U.S.C. § 1228 (2006). The
25

only other listed offenses involving mere possession are the possession of stolen explosives and
the possession of humans kept as slaves. § 1101. Including possession of a sawed-off shotgun
with these other violent offenses under the phase “aggravated felony” is indicative that Congress
views such possession comparable in kind to the other listed offenses.
Both the Thirteenth and the Eleventh Circuits have erroneously examined only the
“involves the use of explosive” offense to hold that possession of a sawed-off shotgun is not
similar in the kind of risk. R. at 10–11; United States v. McGill, 618 F.3d 1273, 1277 (11th Cir.
2010). These circuits wrongly conclude that because the statute uses the phrase “involves use of
explosives” rather than “possession of explosives” and possession of explosives and sawed-off
shotguns are synonymous under 28 U.S.C. § 5845, Congress must not have intended possession
of the sawed-off shotgun to qualify. Id. at 1277. Their argument fails for two reasons.
First, 28 U.S.C. § 5845 does not criminalize possession of explosives or a firearm, in the
general use of the terms. Rather, it enumerates a subset of explosives that have the same
common element as the enumerated firearms: a designed purpose to injure others. § 5845(a)
(noting only explosives known as destructive devices such as bombs, grenades, rockets,
missiles, and mines are regulated by the NFA). Neither the possession of a firearm nor an
explosive is criminal standing alone. See United States v. Posnjak, 457 F.2d 1110, 1115–16 (2d
Cir. 1972) (holding that possession of explosives not defined as destructive devices are non-
criminal). Explosives, like guns, become criminally possessed when they meet the NFA
definition of a firearm and lack registration, or the possessor is a convicted felon. 18 U.S.C. §
842(i)(1) (2006) (criminalizing the possession of explosives by a felon). Because mere
possession of explosives is not criminal, it would have been illogical for Congress to list it as a
violent felony. However, the use of explosives, much like the possession of an unregistered
26

sawed-off shotgun or bomb, is a felony. 18 U.S.C. § 844(i) (2006). Although known for their
destructive capabilities, explosives have lawful purposes, while sawed-off shotguns do not.
Fortes, 141 F.3d at 7 (Congress found § 5845 weapons “lacking in lawful purposes”).
Therefore, possession of a sawed-off shotgun is more similar to the use of an explosive in kind,
than it is to possession of explosives. Further, the lower courts likely read too much into the
phrase “involves the use of.” See, e.g., R. at 10. Congress was in the process of passing new
legislation regarding explosives and used the phrase to incorporate “various explosives
offenses” because they did not “have a single generic term to cover them.” See House Hearing at
15. As the hearing suggests, Congress intended the phrase to include explosive offenses broadly.
Id.
For these reasons, this Court should hold that the possession of an unregistered sawed-
off shotgun poses the same kind of risk as the enumerated offenses. This Court should further
hold that the possession of a sawed-off shotgun is a violent felony under the ACCA because it
involves conduct that presents a serious potential risk of physical injury to others that is similar
in degree, and in kind, to the enumerated offenses.
C. Even if this Court were to require “purposeful, violent, and aggressive conduct,”
the possession of an unregistered sawed-off shotgun would still qualify as a violent
felony.
In Begay, this Court stated that a DUI was not a violent felony because it did not
“typically involve” purposeful, violent, and aggressive conduct. 553 U.S. at 144–45. This
analysis requires a court to look at the conduct of all violations of a particular offense, in the
aggregate, to determine whether purposeful, violent, and aggressive conduct is typically present.
See Chambers, 555 U.S. at 129 (using statistical analysis to determine the frequency of
violence).
27

The possession of an unregistered sawed-off shotgun typically involves conduct that is
purposeful, aggressive and violent because “[s]awed off shotguns are notoriously associated . . .
with crime.” Shaw, 670 F.3d at 368–69. Although conviction under § 5861 only requires
knowing possession of the NFA firearm, Theunick, 651 F.3d at 586, continued possession with
knowledge typically indicates the possessor purposes or intends to possess the firearm, see
United States v. Watkins, 519 F.2d 294, 298 (D.C. Cir. 1975) (holding that an offense requiring
intent to possess is satisfied with knowing possession). Therefore, because § 5861 requires
knowing possession, the typical violation involves purposeful conduct.
Individuals typically use a sawed-off shotgun as a weapon because it lacks other useful
purposes. Serna, 309 F.3d at 864. Further, because there is no lawful purpose for possessing an
unregistered sawed-off shotgun, Fortes, 141 F.3d at 7, all such possessions must be for unlawful
purposes. The typical purpose behind such unlawful possession, therefore, is violent and
aggressive. Serna, 309 F.3d at 864 (“[V]iolence is more likely than not to occur from unlawful
possession of a sawed-off shotgun.”). Therefore, knowing possession of an unregistered sawed-
off shotgun typically involves conduct that is purposeful, violent, and aggressive.
CONCLUSION
For the foregoing reasons, this Court should affirm the Thirteenth Circuit’s denial of the
Convict’s motion to suppress, reverse the Thirteenth Circuit’s sentence, and remand this case for
resentencing with a direction to use the possession of a sawed-off shotgun as a predicate violent
felony.
28
Respectfully Submitted,
____________________
Counsel for Respondent
March 5, 2013

A. Constitutional Provisions
APPENDIX
Relevant Constitutional and Statutory Provisions
TABLE OF CONTENTS
U.S. Const. amend. IV ............................................................................................................ A-2
B. Statutory Provisions
Armed Career Criminal Act, 18 U.S.C. § 924(e) (2006) .......................................................... A-2
National Firearms Act, 26 U.S.C. § 5845(a) (2006)................................................................. A-3
National Firearms Act, 26 U.S.C. § 5845(f)(1) (2006) ............................................................ A-3
National Firearms Act, 26 U.S.C. § 5861(f)(1) (2006) ............................................................ A-3
8 U.S.C. § 1101(a)(43) (2006) ................................................................................................ A-4
8 U.S.C. § 1228(a)(3) (2006) .................................................................................................. A-6
18 U.S.C. § 922(g)(1) (2006) .................................................................................................. A-6
18 U.S.C. § 842(i)(1) (2006) ................................................................................................... A-6
18 U.S.C. § 844(f) (2006) ....................................................................................................... A-6
28 U.S.C. § 994(h) (2006)....................................................................................................... A-7
Fed. R. Crim. P. 11(a)(2) ........................................................................................................ A-7
C. Other Provisions
Model Penal Code § 2.02(5) (2011) ........................................................................................ A-7
U.S. Sentencing Guidelines Manual § 4B1.2(a) (2009) ........................................................... A-8
U.S. Sentencing Guidelines Manual § 4B1.2 cmt. n.1 (2009) .................................................. A-8
A-1

U.S. Const. amend. IV
APPENDIX
Relevant Constitutional and Statutory Provisions
A. Constitutional Provisions
The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon
probable cause, supported by oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.
B. Statutory Provisions
Armed Career Criminal Act, 18 U.S.C. § 924(e) (2006)
(1) In the case of a person who violates section 922(g) of this title and has three previous
convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a
serious drug offense, or both, committed on occasions different from one another, such
person shall be fined under this title and imprisoned not less than fifteen years, and,
notwithstanding any other provision of law, the court shall not suspend the sentence of, or
grant a probationary sentence to, such person with respect to the conviction under section
922(g).
(2) As used in this subsection—
(A) the term “serious drug offense” means—
(i) an offense under the Controlled Substances Act (21 U.S.C. 801 et seq.), the
Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or chapter
705 of title 46 for which a maximum term of imprisonment of ten years or more
is prescribed by law; or
(ii) an offense under State law, involving manufacturing, distributing, or possessing
with intent to manufacture or distribute, a controlled substance (as defined in
section 102 of the Controlled Substances Act (21 U.S.C. 802)), for which a
maximum term of imprisonment of ten years or more is prescribed by law;
(B) the term “violent felony” means 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; and
(C) the term “conviction” includes a finding that a person has committed an act of
juvenile delinquency involving a violent felony.
A-2

National Firearms Act, 26 U.S.C. § 5845(a) (2006)
For the purpose of this chapter—
(a) Firearm The term “firearm” means
(1) a shotgun having a barrel or barrels of less than 18 inches in length;
(2) a weapon made from a shotgun if such weapon as modified has an overall length of
less than 26 inches or a barrel or barrels of less than 18 inches in length;
(3) a rifle having a barrel or barrels of less than 16 inches in length;
(4) a weapon made from a rifle if such weapon as modified has an overall length of less
than 26 inches or a barrel or barrels of less than 16 inches in length;
(5) any other weapon, as defined in subsection (e);
(6) a machinegun;
(7) any silencer (as defined in section 921 of title 18, United States Code); and
(8) a destructive device. The term “firearm” shall not include an antique firearm or any
device (other than a machinegun or destructive device) which, although designed as
a weapon, the Secretary finds by reason of the date of its manufacture, value,
design, and other characteristics is primarily a collector’s item and is not likely to be
used as a weapon.
National Firearms Act, 26 U.S.C. § 5845(f)(1) (2006)
(f) Destructive device The term “destructive device” means
(1) any explosive, incendiary, or poison gas
(A) bomb,
(B) grenade,
(C) rocket having a propellent charge of more than four ounces,
(D) missile having an explosive or incendiary charge of more than one-quarter ounce,
(E) mine, or
(F) similar device.
National Firearms Act, 26 U.S.C. § 5861(f)(1) (2006)
It shall be unlawful for any person—
(a) to engage in business as a manufacturer or importer of, or dealer in, firearms without having
paid the special (occupational) tax required by section 5801 for his business or having
registered as required by section 5802; or
(b) to receive or possess a firearm transferred to him in violation of the provisions of this
chapter; or
(c) to receive or possess a firearm made in violation of the provisions of this chapter; or
(d) to receive or possess a firearm which is not registered to him in the National Firearms
Registration and Transfer Record; or
(e) to transfer a firearm in violation of the provisions of this chapter; or
(f) to make a firearm in violation of the provisions of this chapter; or
(g) to obliterate, remove, change, or alter the serial number or other identification of a firearm
required by this chapter; or
A-3

(h) to receive or possess a firearm having the serial number or other identification required by
this chapter obliterated, removed, changed, or altered; or
(i) to receive or possess a firearm which is not identified by a serial number as required by this
chapter; or
(j) transport, deliver, or receive any firearm in interstate commerce which has not been
registered as required by this chapter; or
(k) to receive or possess a firearm which has been imported or brought into the United States in
violation of section 5844; or
(l) to make, or cause the making of, a false entry on any application, return, or record required
by this chapter, knowing such entry to be false.
8 U.S.C. § 1101(a)(43) (2006)
(43) The term “aggravated felony” means—
(A) murder, rape, or sexual abuse of a minor;
(B) illicit trafficking in a controlled substance (as defined in section 802 of title 21),
including a drug trafficking crime (as defined in section 924(c) of title 18);
(C) illicit trafficking in firearms or destructive devices (as defined in section 921 of title
18) or in explosive materials (as defined in section 841(c) of that title);
(D) an offense described in section 1956 of title 18 (relating to laundering of monetary
instruments) or section 1957 of that title (relating to engaging in monetary
transactions in property derived from specific unlawful activity) if the amount of the
funds exceeded $10,000;
(E) an offense described in—
(i) section 842(h) or (i) of title 18, or section 844(d), (e), (f), (g), (h), or (i) of that
title (relating to explosive materials offenses);
(ii) section 922(g)(1), (2), (3), (4), or (5), (j), (n), (o), (p), or (r) or 924(b) or (h) of
title 18 (relating to firearms offenses); or
(iii) section 5861 of title 26 (relating to firearms offenses);
(F) a crime of violence (as defined in section 16 of title 18, but not including a purely
political offense) for which the term of imprisonment at [5] least one year;
(G) a theft offense (including receipt of stolen property) or burglary offense for which the
term of imprisonment at [5] least one year;
(H) an offense described in section 875, 876, 877, or 1202 of title 18 (relating to the
demand for or receipt of ransom);
(I) an offense described in section 2251, 2251A, or 2252 of title 18 (relating to child
pornography);
(J) an offense described in section 1962 of title 18 (relating to racketeer influenced corrupt
organizations), or an offense described in section 1084 (if it is a second or subsequent
offense) or 1955 of that title (relating to gambling offenses), for which a sentence of
one year imprisonment or more may be imposed;
(K) an offense that—
(i) relates to the owning, controlling, managing, or supervising of a prostitution
business;
(ii) is described in section 2421, 2422, or 2423 of title 18 (relating to transportation
for the purpose of prostitution) if committed for commercial advantage; or
A-4

(iii) is described in any of sections 1581–1585 or 1588–1591 of title 18 (relating to
peonage, slavery, involuntary servitude, and trafficking in persons);
(L) an offense described in—
(i) section 793 (relating to gathering or transmitting national defense information),
798 (relating to disclosure of classified information), 2153 (relating to sabotage)
or 2381 or 2382 (relating to treason) of title 18;
(ii) section 421 of title 50 (relating to protecting the identity of undercover
intelligence agents); or
(iii) section 421 of title 50 (relating to protecting the identity of undercover agents);
(M) an offense that—
(i) involves fraud or deceit in which the loss to the victim or victims exceeds
$10,000; or
(ii) is described in section 7201 of title 26 (relating to tax evasion) in which the
revenue loss to the Government exceeds $10,000;
(N) an offense described in paragraph (1)(A) or (2) of section 1324(a) of this title (relating
to alien smuggling), except in the case of a first offense for which the alien has
affirmatively shown that the alien committed the offense for the purpose of assisting,
abetting, or aiding only the alien’s spouse, child, or parent (and no other individual) to
violate a provision of this chapter [6]
(O) an offense described in section 1325(a) or 1326 of this title committed by an alien who
was previously deported on the basis of a conviction for an offense described in
another subparagraph of this paragraph;
(P) an offense
(i) which either is falsely making, forging, counterfeiting, mutilating, or altering a
passport or instrument in violation of section 1543 of title 18 or is described in
section 1546(a) of such title (relating to document fraud) and
(ii) for which the term of imprisonment is at least 12 months, except in the case of a
first offense for which the alien has affirmatively shown that the alien committed
the offense for the purpose of assisting, abetting, or aiding only the alien’s
spouse, child, or parent (and no other individual) to violate a provision of this
chapter;
(Q) an offense relating to a failure to appear by a defendant for service of sentence if the
underlying offense is punishable by imprisonment for a term of 5 years or more;
(R) an offense relating to commercial bribery, counterfeiting, forgery, or trafficking in
vehicles the identification numbers of which have been altered for which the term of
imprisonment is at least one year;
(S) an offense relating to obstruction of justice, perjury or subornation of perjury, or
bribery of a witness, for which the term of imprisonment is at least one year;
(T) an offense relating to a failure to appear before a court pursuant to a court order to
answer to or dispose of a charge of a felony for which a sentence of 2 years’
imprisonment or more may be imposed; and
(U) an attempt or conspiracy to commit an offense described in this paragraph.
The term applies to an offense described in this paragraph whether in violation of
Federal or State law and applies to such an offense in violation of the law of a foreign
country for which the term of imprisonment was completed within the previous 15
years. Notwithstanding any other provision of law (including any effective date), the
A-5

term applies regardless of whether the conviction was entered before, on, or after
September 30, 1996.
8 U.S.C. § 1228(a)(3) (2006)
(3) Expedited proceedings
(A) Notwithstanding any other provision of law, the Attorney General shall provide for the
initiation and, to the extent possible, the completion of removal proceedings, and any
administrative appeals thereof, in the case of any alien convicted of an aggravated
felony before the alien’s release from incarceration for the underlying aggravated
felony.
(B) Nothing in this section shall be construed as requiring the Attorney General to effect
the removal of any alien sentenced to actual incarceration, before release from the
penitentiary or correctional institution where such alien is confined.
18 U.S.C. § 922(g)(1) (2006)
It shall be unlawful for any person—
(1) who has been convicted in any court of, a crime punishable by imprisonment for a
term exceeding one year;
to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any
firearm or ammunition; or to receive any firearm or ammunition which has been shipped or
transported in interstate or foreign commerce.
18 U.S.C. § 842(i)(1) (2006)
(i) It shall be unlawful for any person—
(1) who is under indictment for, or who has been convicted in any court of, a crime
punishable by imprisonment for a term exceeding one year;
to ship or transport any explosive in or affecting interstate or foreign commerce or to receive or
possess any explosive which has been shipped or transported in or affecting interstate or foreign
commerce.
18 U.S.C. § 844(f) (2006)
(1) Whoever maliciously damages or destroys, or attempts to damage or destroy, by
means of fire or an explosive, any building, vehicle, or other personal or real
property in whole or in part owned or possessed by, or leased to, the United
States, or any department or agency thereof, or any institution or organization
receiving Federal financial assistance, shall be imprisoned for not less than 5 years
and not more than 20 years, fined under this title, or both.
(2) Whoever engages in conduct prohibited by this subsection, and as a result of such
conduct, directly or proximately causes personal injury or creates a substantial risk
of injury to any person, including any public safety officer performing duties,
shall be imprisoned for not less than 7 years and not more than 40 years, fined
under this title, or both.
A-6

(3) Whoever engages in conduct prohibited by this subsection, and as a result of such
conduct directly or proximately causes the death of any person, including any
public safety officer performing duties, shall be subject to the death penalty, or
imprisoned for not less than 20 years or for life, fined under this title, or both.
28 U.S.C. § 994(h) (2006)
(h) The Commission shall assure that the guidelines specify a sentence to a term of
imprisonment at or near the maximum term authorized for categories of defendants in
which the defendant is eighteen years old or older and—
(1) has been convicted of a felony that is—
(A) a crime of violence; or
(B) an offense described in section 401 of the Controlled Substances Act (21
U.S.C. 841), sections 1002(a), 1005, and 1009 of the Controlled Substances
Import and Export Act (21 U.S.C. 952(a), 955, and 959), and chapter 705 of
title 46; and
(2) has previously been convicted of two or more prior felonies, each of which is—
(A) a crime of violence; or
(B) an offense described in section 401 of the Controlled Substances Act (21
U.S.C. 841), sections 1002(a), 1005, and 1009 of the Controlled Substances
Import and Export Act (21 U.S.C. 952(a), 955, and 959), and chapter 705 of
title 46.
Fed. R. Crim. P. 11(a)(2)
C. Other Provisions
(a) Entering a Plea.
(2) Conditional Plea. With the consent of the court and the government, a defendant
may enter a conditional plea of guilty or nolo contendere, reserving in writing the
right to have an appellate court review an adverse determination of a specified
pretrial motion. A defendant who prevails on appeal may then withdraw the plea.
Model Penal Code § 2.02(5) (2011)
(5) Substitutes for Negligence, Recklessness and Knowledge. When the law provides that
negligence suffices to establish an element of an offense, such element also is established
if a person acts purposely, knowingly or recklessly. When recklessness suffices to
establish an element, such element also is established if a person acts purposely or
knowingly. When acting knowingly suffices to establish an element, such element also is
established if a person acts purposely.
A-7

U.S. Sentencing Guidelines Manual § 4B1.2(a) (2009)
(a) The term “crime of violence” means 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. Sentencing Guidelines Manual § 4B1.2 cmt. n.1 (2009)
For purposes of this guideline--“Crime of violence” and “controlled substance offense” include
the offenses of aiding and abetting, conspiring, and attempting to commit such offenses.
“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). Where the instant
offense is the unlawful possession of a firearm by a felon, § 2K2.1 (Unlawful Receipt,
Possession, or Transportation of Firearms or Ammunition; Prohibited Transactions Involving
Firearms or Ammunition) provides an increase in offense level if the defendant had one or more
prior felony convictions for a crime of violence or controlled substance offense; and, if the
defendant is sentenced under the provisions of 18 U.S.C. § 924(e), § 4B1.4 (Armed Career
Criminal) will apply.
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”.
A-8