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

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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
Page 1 and 2: No. 13-201 ________________________
Page 3 and 4: TABLE OF CONTENTS ii Page Questions
Page 5 and 6: TABLE OF CONTENTS-Continued iv Page
Page 7 and 8: TABLE OF AUTHORITIES-Continued vi P
Page 9 and 10: TABLE OF AUTHORITIES-Continued B. F
Page 11 and 12: investigators quickly determined th
Page 13 and 14: Procedural History On October 1, 20
Page 15 and 16: eckless conduct. Other felony offen
Page 17 and 18: The three seminal rulings governing
Page 19 and 20: Amendment intrusion was outweighed
Page 21 and 22: go on unlimited fishing expeditions
Page 23 and 24: had waited for a search warrant to
Page 25 and 26: The First Circuit found a protectiv
Page 27: determine whether an offense qualif
Page 31 and 32: F.3d at 7 (commenting that Congress
Page 33 and 34: Subcommittee on Crime of the House
Page 35 and 36: only other listed offenses involvin
Page 37 and 38: The possession of an unregistered s
Page 39 and 40: U.S. Const. amend. IV APPENDIX Rele
Page 41 and 42: (h) to receive or possess a firearm
Page 43 and 44: term applies regardless of whether
Page 45: U.S. Sentencing Guidelines Manual

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