USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 96-1981

UNITED STATES,

Appellee,

v.

EDWIN FORTES, AKA CHARLES BROOKSHIRE,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. George A. O'Toole, Jr., U.S. District Judge]

___________________

____________________

Before

Selya and Lynch, Circuit Judges,

______________

and Pollak,* Senior District Judge.

_____________________

_____________________

Robert Godfrey, by appointment of the Court, for appellant.

______________
Timothy Q. Feeley, Assistant
__________________

United States

whom Donald K. Stern, United States Attorney and

_______________
Leoney,
______
appellee.

Assistant

United

States Attorney,

were

Attorney, with

Antoinette E.M.
_______________
on

brief for

____________________

January 14, 1998

____________________

____________________

Of

the

Eastern

District

of

Pennsylvania,

sitting

by

designation.

POLLAK, Senior District Judge.

POLLAK, Senior District Judge.
______________________

This appeal challenges

the

conviction and

(a.k.a.

the

subsequent

Charles Brookshire).

on December 6,

was a felon

Fortes

ammunition (18 U.S.C.

(2) possessed a firearm with an obliterated serial

922(k)); (3) possessed cocaine with intent to

(21 U.S.C.

firearms during

and in

841(a)(1));

and (4)

connection with

count 3 (18 U.S.C.

fourth count

Edwin

A four-count indictment, handed up

in possession of firearms and

number (18 U.S.C.

alleged in

of

1995, charged that on January 13, 1994 Fortes (1)

922(g)(1));

distribute

sentence

was dropped. In

used and

the cocaine

924(c)(1)).

carried

possession

Prior to trial the

May of 1996, having

waived a jury

trial, Fortes was tried to the bench on counts 1, 2 and 3.

After

a week's trial Fortes was found guilty on all three counts.

Fortes

was sentenced

in July

of

1996. Finding

that

under count 1 -- felon in possession of firearms and ammunition -

- Fortes was subject to

enhanced penalties pursuant to the Armed

Career Criminal Act (ACCA), 18

career

criminal

sentencing

U.S.C.

guideline,

924(e)(1), and the armed

U.S.S.G.

4B1.4,

the

district court sentenced Fortes to a prison term of 262 months on

count 1.

The district court also imposed concurrent sentences of

60 months on count 2 and 262 months on count 3.

On

conviction

discussion.

appeal

Fortes

and sentence.

challenges several

Two

of

To these we now turn.

-2-

the issues

aspects

of his

he raises

merit

I.

Fortes

argues that findings made by the district court

in connection with the conviction

cocaine with

intent

verdict of guilty.

the

district

conclusion

under count 3 -- possession of

to distribute

-- are

incompatible with

Fortes' precise contention is that certain of

court's

findings

are

directly at

that, within the intendment of 21 U.S.C.

he "knowingly" possessed the particular

odds

with

841(a)(1),

units of cocaine that he

was charged with possessing.

The cocaine

wrapped packages of

search

at 5

the

in question

Cardington Street in

on a

nine "jums"

crack. Law enforcement officers

warrant on January 13,

jums

consisted of

bureau

executing a

1994, at Fortes' aunt's apartment

the Roxbury section of

located in

Fortes.1 The search marked

--

Boston, found

guest room

frequented by

the culmination of several

months of

____________________

The

district

connection with

court s

the

findings

guest room

with

in

respect

his aunt s

to

apartment

these:

The execution of the search warrant yielded

not

only

the

evidence

of

the

contraband

itself but evidence that established, I think

powerfully, the
premises
Street

on
and

defendant s presence

the first
his

ability

floor
and

Fortes

in the

of Cardington
intention

to

were

exercise control

over items in what has been

variously called the

room, that is, the

guest room or

Chucky s

room on the right as

you

enter the building.

In

particular, there was a large number of

defendant s
simply

personal papers.

historical

papers,

They
but

weren t

they

were

current operational papers.

-3-

law enforcement efforts

inquiring into drug-and-firearms-related

activities

of Fortes and others at

the Roxbury apartment. These

law enforcement efforts included two controlled drug transactions

in

which

cocaine

was

sold

at

the

Roxbury

apartment

to

confidential informant: in the first transaction, in September of

1993, Fortes was the seller;

in the second transaction, in early

January of 1994, a Fortes confederate was the seller.

The district

to

the three

firearms

counts of

and

obliterated

court made extended findings with respect

conviction

ammunition;

-- felon

possession

of

in possession

of

firearm

an

with

serial number; and possession of cocaine with intent

to distribute. In order fairly to assess Fortes' challenge to his

conviction on the cocaine-possession count it will

quote

count.

the entirety

of

the district

court's

be helpful to

findings on

that

To place those findings in proper context, the concluding

portions

of the

district court's

preceding

discussion --

the

discussion of the two firearms counts -- will also be set forth:

____________________

Among the
think the
report

papers

were his

most recent
to

included

his

of

through the month

in fact,
in January

one was

probation

copies

current

his

--

in December,

officer

which

paychecks

earned

of December and,

into January, indicating

I think,
that even

1994, defendant had a present and

ongoing connection with that room by treating

it

as a repository

for papers that

were of

some importance to him.

may

note

that

the

defendant

in

his

probation reports or reports to the probation

supervising probation

officer reported

his residence was 5 Cardington Street.

-4-

that

So

with

respect to

Count

1,

I find

that

the

defendant did have constructive possession of the items

alleged in Count 1.

Now, let me just say that possession may well have

been

joint.

whether

it

I'm
was

not

called

joint.

defendant has possession.

that it was

It's

upon to

decide

sufficient

that

The evidence does

joint with others, perhaps,

fully
the

indicate

because other

people came and went at the same time.

And,
issue.

of course, question
Possession

is to

ownership, some preference

be

of ownership is
determined

as to whose guns

not at

apart from
they were

and that is, I think, legally beside the point.

With respect to
weapon

Count 2, Count

with the obliterated

2 relates to

serial number.

the Interdynamic semiautomatic pistol.

the right-hand bedroom
conclude

the

That was

It was found in

and is one of the

defendant

the

items that I

constructively

possessed

knowingly.

I reach essentially similar conclusion [sic]

___
respect

to

possessed

Count
a

which

alleges

controlled substance

the

with

defendant

knowingly

with the

intent to distribute it.

First

of

all, I

think

controlled

substance.

the items.

I don't know if

weren't

it's clear

I've read the

it matters

it's a

report of one of

it matters the other [sic]

___

analyzed, whether the

don't think

that

one is cocaine

base, I

the others are

not.

I don't

principles

possession,

think it matters.

Applying the

same

of

would conclude from defendant's participation in a drug

sale in September that he knew
place

and that

he

intended to possess

intended

that was a drug-selling

to

participate

the drugs that were

in

it,

available for

sale within the premises from time to time; and that as

a willing, knowing

participant in

that conspiracy

to

sell drugs as well as firearms, the defendant knew that

drugs, particularly

cocaine base,

would be

available

and would be sold.

And I find

further that he

had the intention

to

exercise control over -- perhaps jointly with others -over such

drugs as were

in the apartment for

sale at

any given time through the date of the indictment, date

alleged in the indictment.

I'm sorry, through the date

alleged in the Count 3 in the indictment.

-5-

I may say

that I do not find

that the government

has proved beyond a reasonable doubt that the defendant

knew of these

specific nine items being on

top of the

bureau at the particular time.

There's
in such a
knew

not evidence that the defendant was there

time -- in proximity

specifically

that there

to the search
were

that he

nine individually

wrapped jums on top of the bureau.

don't think

conclusion that
sale

that is

he knew of

necessary

because of

the presence of

my

crack for

in the premises generally and intended to possess

that which was present.

But to

the extent

that may

make any

difference

legally, I mention that; and I'm not convinced that

knew of

those specific items.

from

the firearms, for

more

likelihood,

condition,
would

not remain

whereas I think
in

And I distinguish those

example, because I

likely that

that nine

that

individually

very long

he

on

was a

think much
transitory

wrapped jum

the top

of a

doses
bureau

firearms stored in safes and behind --

briefcases behind cabinets,

so on, so

forth, were

there for longer term storage.

But it's

not clear who

may have deposited

in the events of

those individual

the day

packages and

for

how

long

they were

there.

could not

find

the

defendant knew of those specifically, but I don't think

that's necessary to the proof.

I think that it's sufficient for the government to

have proved participation
the sale of

cocaine, cocaine base, knowing

would be a supply
that by

in the conspiracy

which was
that there

and that intended to participate

possessing

and exercising

control

over

in
the

supply as it may been from time to time.

I find

further that

possession by

was with the intent to distribute.

evidence that sales

I find from all the

was [sic] going on,

___

own participation in the sale and in

evidence the defendant
cocaine

base

government

so

has

that
proved

the defendant

including his

addition from the

himself did not use

the

element

--

possession with

cocaine or
I

find

the

intention

to

distribute.

Fortes

finding

that

argues that

he knowingly

the key

possessed

-6-

to

the district

cocaine

was "that

court's

as

willing, knowing participant in that

well as

firearms, the

conspiracy to sell drugs as

defendant knew

that drugs,

particularly

cocaine base, would be available and would be sold."

on to

point out that he was not

conspiracy.

In

characterization of him

court's

of

arguing

Fortes goes

charged with participation in a

that

the

district

as a conspirator undercuts

court's

the district

verdict on the possession count, Fortes invokes language

this court in

United States v.

Zavala Maldonado,

23 F.3d 4

_____________

(1st

Cir.), cert. denied, 115

_____________

Zavala --

like Fortes

________________

S.

Ct. 451

in the case

at bar

(1994).

-- was

possession of cocaine with intent to distribute.

case,

we

pointed

out

[conspiracy,

and

aiding

charged,

is

it

hardly

contained evidence to

went on

to state that

that,

and

"given

abetting

sufficient

to

support such a

that

an

Defendant

charged with

And in Zavala's

these

attempt]

say

that

offenses

were

this
____

record

conviction," and we

"the conviction for possession

not

there

can stand

only if a reasonable jury could find that Zavala did possess

cocaine within the meaning of 21 U.S.C.

It

is

true that

here,

conspiracy charge was laid against

as

841."

the

Id. at 6.
__

in Zavala Maldonado,
_________________

the defendant.

no

Thus here, as

there,

charge

of

possession

could

demonstrating vicarious accountability --

co-conspirator

defendant has

is

not

possession by

not been charged

the

not

be

proved

by

i.e., possession by

defendant

with conspiracy.

where the

But --

as in

Zavala Maldonado, so here -- proof of the defendant's possession

_________________

rested

on

the defendant's

own

-7-

conduct,

not

on that

of

co-

conspirators.

To be sure, in the case at bar the

district court

referred to Fortes' participation in a "conspiracy to

as well

as firearms,"

"defendant's

1993],"

but the district

participation in

a datum

from

Fortes "knew that

which the

in it,

available

sale within

Furthermore,

drug

sale

district

in

the

intended to possess

district

the

premises

court noted

referred to

September

court inferred

was a drug-selling place and

to participate

for

court also

sell drugs

that

that he intended

the drugs

that were

from time

that

[of

to

time."

execution

of the

January 13, 1994 search warrant "established, I think powerfully,

the defendant's

Cardington

control over

presence in the

Street

and

premises on the first

his ability

items in what

and

intention

has been variously called

floor of

to exercise

the guest

room or Chucky's room." See note 1, supra. Given the plenitude of

___
_____

these findings, and the fact that crack -- like any other drug of

particular kind --

possibility

that at

Fortes may

not have

individually

is an essentially

the time

known

wrapped

jums

of

fungible commodity, the

the January

"specifically that

on

top

of

the

destabilize the district court's verdict.

the district

court's "conclusion

13, 1994

search

there were

bureau"

does

nine

not

What is dispositive is

that he

[Fortes] knew of

the

presence of crack for sale in the premises generally and intended

to

possess

that

which

was

present"

--

conclusion

amply

supported by the evidence.2

____________________

The district court s

inapposite Fortes
guidance in

amply supported conclusion also renders

reliance

on our

cautionary observation

and

United States v. Booth, 111 F.3d 1 (1st Cir.), cert.

_____________

_____

_____

-8-

II.

Fortes'

conviction

on

the

firearms-and-ammunition count, under 18

rise

to

substantially

pursuant

prison

in

sentence

excess

to 18 U.S.C.

on

of the

that

felon-in-possession-of-

U.S.C.

count

ten-year

922(g)(1), gave

of

maximum

924(a)(2), ordinarily

262

months,

term which,

sets a cap

on a

sentence of incarceration

lengthier

sentence

for a violation of

was

based

on

determination that, given Fortes'

maximum term was

sentencing

challenges

district

U.S.C.

guideline,

that determination,

This

court's

criminal history, the ten-year

required to be enhanced by virtue

Career Criminal Act (ACCA), 18

companion

the

922(g)(1).

924(e)(1), and the Act's

U.S.S.G.

raising

of the Armed

4B1.4.

questions of

Fortes

law

with

There the jury was charged

that

respect to which our review is plenary.

____________________

denied, 118 S. Ct. 204 (1997).

______
an inference of

constructive possession was permissible

person knowingly has the

of exercising
area in

power and the intention at a given time

dominion and

which the

"when a

control over an

object is located."

Id.

object or over the

____________
at 2

(emphasis in

_____________________________________
original).
in some

While

acknowledging that "knowledge can

circumstances from control

was some

__

of the area," we

risk of

over-breadth in the

an

might, without

control of

area

case

Accordingly,
(in which "the

more,

knowing

properly

possession was

knowing

ground

an

whatever might be in the

without disturbing the

jury was told

felt there

proposition that

inference of constructive possession of

area.

be inferred

verdict in Booth s

several times that

required; [and]

the evidence

proof of

linking

appellant to the gun was substantial," id.), we cautioned against

__
the utilization of so elastic an
here

the

district

possession
simpliciter;
___________

in

the

court

did

fact

of

instruction in the future.

not

knowing

the district court found

and intended to participate in

ground

its

control

inference
over

the

But

of

area

that Fortes was aware of,

possessing, crack that was on the

premises and that was available for sale.

-9-

Section

term of

924(e)(1) of Title

incarceration of fifteen

person "who violates

18 provides for

years without

section 922(g) of this title

a minimum

parole for

any

and has three

previous convictions by any court . . . for a violent felony or a

serious drug offense, or

date of his

both."

Although Fortes had, as

sentencing in this case, a

of the

not unimpressive history

of prior criminal convictions, he takes exception to the district

court's

conclusion that

more

than two

felon[ies]" within the meaning of

At sentencing,

of

them were

"violent

924(e)(1).

the district court concluded

that five

of Fortes' prior convictions -- two Massachusetts convictions and

three federal

convictions

felon[ies]."

The Massachusetts convictions were for assault and

battery on

murder.

off

a correctional

-- qualified

officer and

The federal convictions

shotgun, conspiracy to

as

predicate

assault

"violent

with intent

to

were for possession of a sawed-

commit bank robbery,

and armed bank

robbery.

In

appealing

that three of the five

as

the enhanced

of

ACCA.

Fortes contends

convictions counted by the district court

predicate offenses were

meaning

sentence,

The

not "violent felon[ies]"

three

challenges are the Massachusetts

whose

within the

characterization

assault and battery

Fortes

conviction

and the federal possession of a sawed off shotgun and conspiracy-

to-commit-bank-robbery convictions.

Subsequent to Fortes' sentencing, this court, in United

______

States v.
______

Indelicato, 97 F.3d
__________

627 (1st Cir.), cert denied, 117

____________

-10-

S. Ct. 1013 (1997), had occasion

purposes

of

the

offense of assault

denominates a

to consider the status, for the

federal criminal

code,

of

the Massachusetts

and battery -- an offense which Massachusetts

"misdemeanor," and

conviction of

which does

not

entail a loss

our

of civil rights.

Indelicato
__________

analysis

As

the government acknowledges,

precludes

offense of

assault

"violent

felony" under

ACCA.

government insists, however,

that the

two other

battery

offenses called into question by

of a sawed-off

Fortes -- possession

shotgun and conspiracy to commit

are both "violent

felon[ies]."

as

the

Massachusetts

The

and

characterizing

bank robbery --

If the government

is correct as

to either offense, then that offense, taken together with the two

offenses whose "violent felony" status Fortes does not dispute --

armed bank robbery and assault with intent to murder -- would add

up to

But if

shotgun

the three predicate

Fortes is

offenses which bring ACCA

right that neither

nor conspiracy

to rob

possession of

bank is

into play.

a sawed-off

a "violent

felony,"

sentencing Fortes as an armed career criminal was not authorized.

We turn, then, to a

these

consideration of whether either of

offenses is properly characterizable as a "violent felony"

for the purposes of ACCA.

A.

Is possession of a sawed-off shotgun a "violent felony"

_____________________________________________________________

within the meaning of ACCA?

___________________________

Possession of a sawed-off shotgun is made an offense by

the confluence of

26 U.S.C.

5861(d) and 26 U.S.C.

Section 5861(d) of Title 26 makes

-11-

5845(a).

it "unlawful for any person

. . to

receive or possess a

firearm which is

him in the National Firearms

section

not registered to

Registry and Transfer Record."

And

5845(a) instructs that the "term 'firearm' means," inter

_____

alia, "a shotgun having a barrel or barrels of less than eighteen

____

inches in length."

26 U.S.C.

5845(a).

As the

Ninth Circuit

observed in United States v. Dunn, 946 F.2d 615, 621 (9th

_____________
____

cert. denied,
____________

502 U.S. 950

registered under 26

U.S.C.

(1991), "[n]ot all firearms

5861(d).

Only

Cir.),

must be

those firearms must

be registered that Congress has found to be inherently

dangerous

and generally lacking usefulness, except for violent and criminal

purposes,

U.S.C.

such

sawed-off shotguns

and

hand-grenades.

26

5845."

The

U.S.C.

as

term "violent

felony," as

924(e)(1), is defined in

utilized

18 U.S.C.

in ACCA,

924(e)(2)(B).

18

The

definition is as follows:

[T]he
punishable

term

violent

felony

means

any

crime

by imprisonment for a term exceeding one year

. . . that -(i) has

attempted

as an

use, or

physical force

element the

use,

threatened use

of

against the person

of

burglary,

arson,

or

use

of

another; or
(ii)

is

extortion,

involves

explosives,
conduct

that

potential risk

or

otherwise
presents

involves
a

serious

of physical injury

to

another.

In considering whether an offense is a "violent felony"

within the meaning

of 18 U.S.C.

courts are,

as a

categorical

approach, looking only

924(e)(1) and

general matter, directed

924(e)(2)(B),

to pursue

"a formal

to the statutory definitions

-12-

of the prior offenses, and not to the particular facts underlying

those convictions."

(1990).

Taylor v. United States, 495

______
_____________

U.S. 575, 600

It would

possession of

any

appear clear

a sawed-off shotgun

"firearm which

National

is not

attempted use, or

threatened use of

person of another."

determined

and Transfer

not an offense which

solely

18 U.S.C.

by

statutory texts

-- or, indeed,

registered to

Firearms Registry

5861(d) -- is

from the

possession of

[the accused]

Record,"

in the

26 U.S.C.

"has as an element

the use,

physical force against

924(e)(2)(B)(i).

reading the

that

statutory

the

What cannot be

texts

is whether

possession of a sawed-off shotgun "involves conduct that presents

serious potential

U.S.C.

risk of

physical injury

to another."

18

924(e)(2)(B)(ii).

In arguing that

contravention

of 26

possession of a sawed-off

U.S.C.

5861(d), is

not an

shotgun, in

offense that

falls within the purview of

United States v. Doe, 960

______________
___

924(e)(2)(B)(ii), Fortes relies on

F.2d 221 (1st Cir.

1992).

In Doe we
___

held that possession of a firearm by a felon, in contravention of

18

U.S.C.

922(g)(1),

Since possession is
__________

and

of

dictates

922(g)(1),

was not

924(e)(2)(B)(ii) offense.

the defining criminal act both

Fortes

contends

that

"Doe
___

of

5861(d)

controls

and

the conclusion that [possession of a sawed-off shotgun]

does not qualify as a 'violent [felony]'."

Our holding in Doe was based on several considerations.

___

The concluding consideration built upon the position taken by the

-13-

Sentencing

Commission

governing the career

4B1.2, the

in

a 1991

amendment

to

the commentary

offender guidelines, U.S.S.G.

close guideline analogues of 18

U.S.C.

4B1.1 and

924(e).

said this:

Fourth,

the

Commission,

United

States

following

instruction, 28 U.S.C.
Guidelines

with

before

us,

use

for

those

two prior convictions

___

the words

Guidelines

statutory

enhancements

for "crimes of violence."

the

994(a), has written

violent offenders with

In defining

Sentencing

U.S.S.G.

"crime of
the very

namely the

words

4B1.1.

violence,"

language

now

"conduct that

We

presents a serious potential risk of physical

injury to another."
The

Commission

U.S.S.G.

has

4B1.2(1)(ii).

recently

commentary to make clear that

amended

its

these words do

"not
include
the offense
of
unlawful
____________________________________________
possession of
a firearm
by a
felon."
___________________________________________
U.S.S.G.

4B1.2,

added).

The

comment.

Commission,

detailed sentencing
federal criminal
any

individual

judgment

data on

case, is
court

about the

(n.2)(emphasis
which

collects

virtually every
better able

to make

an

than

informed

relation between

simple

unlawful gun possession and the likelihood of

accompanying violence.
because

uniform

language is
we should

For this reason, and

interpretation

in itself desirable,
give

some

legal

of

similar

we believe

weight

to

the

Commission's determination.

Doe, 960 F.2d at 225.

___

The

Sentencing Commission

amendment concerning possession

has

not issued

similar

of a sawed-off shotgun,

or such

other firearms as a silencer or a machine gun whose possession is

also

proscribed

by

5861(d)

definitional provision, 26 U.S.C.

indeed,

very substantial --

generic

"firearm" and

(in

combination

5845(a)).

with

The reasonable --

difference between possession

possession

of

one

the

of

the

of a

specialized

-14-

weapons

singled-out for particularized treatment by 26 U.S.C.

5845(a)

and

decision in

1992).

5861(d)

is

United States v.
_____________

There the court

amendment

to U.S.S.G.

prior

the

to

illustrated

4B1.2

Sahakian,
________

Circuit's

Huffhines, 967 F.2d 314

_________

(9th Cir.

965 F.2d

a "crime

4B1.1

940 (9th

in

United States v.
_____________

of

two years

amendment

characterizing felon-

of violence" within

the

and 4B1.2.

See United States v.

___ ______________

Cir. 1992);

cf. United States v.

__ ______________

O'Neal, 937 F.2d 1369 (9th Cir. 1990).

______

reaffirming the explication

Sentencing Commission

commentary

court in Doe) precluded

___

of U.S.S.G.

the

(an amendment adopted

Commission's

in-possession-of-a-firearm as

meaning

Ninth

held that a 1989

Sentencing

discussed by this

by

But

the Huffhines court,

_________

5845(a) and

Dunn, supra (possession

____ _____

5861(d) announced

of an unregistered

firearm --

in that instance, a sawed-off

of violence"

possession

meaning

for purposes of

of a

U.S.S.G.

silencer is
__

of U.S.S.G.

shotgun -- is a "crime

4B1.1), also held

a "crime

4B1.1

of violence"

and 4B1.2.

The

within the

Ninth Circuit's

Huffhines analysis merits quotation:

_________

The crime of possession of a firearm silencer

does

not

have

attempted use

as

Supp. 1992).
to be a

Thus,

conduct that

potential

risk

The

U.S.S.G.

unlawful

presents such a
Dunn, 946
____
denied, ___

of physical

in

order

crime of violence,

of

presents a

physical

See
___

for

the

it must
serious

injury

to

4B1.2(1)(ii).

possession
risk.

use,

46.06(a)(4) (West 1989

"involve[]

another."

the

by section 4B1.2(1)(i).

Tex. Penal Code Ann.

offense

element

or threatened use

force required

&

an

of

silencer

In United States v.
_________________

F.2d 615, 620-21 (9th Cir.), cert.

_____
U.S. ___,

112 S.

that

Ct. 401,

116

______
L.Ed.2d 350

(1991), we held

that possession

-15-

of an unregistered firearm in violation of 26

U.S.C.

5861(d)

violence for
noted that,

under 26 U.S.C.

Congress

dangerous
such as
reasoned

crime

purposes of section 4B1.1.

all firearms must

that

constituted

and

found

to

lacking in

We

5861(d),

be registered, only

not
those

be

inherently

lawful

purposes,

sawed-off shotguns and grenades.

that

the

unregistered firearm

of

possession
of the kind

of

We
an

defined in

section 5845 involved a

the law

and a

substantial risk

physical force.

This

blatant disregard of

Id. at 621.
__

reasoning

also

unlawful

possession

silencer

is specifically

5845's definition
5845(a)(7).

of improper

of

applies
a

to

the

silencer.

listed in

of "firearm."

Like a sawed-off

section

26

U.S.C.

shotgun and

other firearms of the kind enumerated in that

section, a silencer is practically

of no use

except for a criminal purpose.

Huffhines, 967 F.2d at 320-321.

_________

A year

after Huffhines,
_________

the Huffhines and Dunn analysis

_________
____

the Ninth

Circuit reaffirmed

of the guidelines term "crime of

violence" in United States v. Hayes, 7 F.3d, 144 (9th Cir. 1993),

_____________
_____

cert. denied, 511 U.S. 1020

____________

shotgun.3

(1994), a case involving a sawed-off

____________________

The Hayes court said (7 F.3d at 145):

_____

A defendant qualifies as a career offender

if

he is

convicted of

felony that

is a

crime of violence and has two previous felony

convictions for crimes of violence.

U.S.S.G.

4B1.1; [United States v.] Young, 990

________________________
at

470.

F.2d

Section 4B1.2(1) defines a crime of

violence as a felony offense under federal or

state

law that "has

as an element

attempted use, or threatened

the use,

use of physical

force against the

person of another,

involves

conduct

that

potential

risk

another."

Because the

of

unregistered

Hayes

of

presents
physical

-16-

or ...
serious

injury

to

statutory definition
shotgun

conviction

In Doe we looked to
___

career

offender guidelines,

the jurisprudence attendant on the

U.S.S.G.

4B1.1

and 4B1.2,

for

assistance in the construction of identical language in the Armed

Career Criminal Act (ACCA), 18 U.S.C.

again today.

924(e)(2)(B).

We do

so

We hold that possession of a sawed-off shotgun is a

"violent felony" within the meaning of ACCA.

B.

Fortes' ACCA sentence was warranted

___________________________________

Since

sawed-off shotgun

ACCA, that

Fortes'

was a

prior

conviction for

"violent

conviction, together

felony" for

with Fortes'

possession

the purposes

of a

of

prior convictions

for assault

added

up

with intent

to

three

to murder and

predicate

subjecting Fortes to

for armed

"violent

bank robbery,

felon[ies],"

the enhanced sentence scheme

prescribed by

____________________

does not

involve the use,

threatened
another,

use
we

of

focus

attempted use

physical
solely

force
on

or

against

whether

the

charged conduct presented a serious potential

risk

of

physical

injury to

another.

See
___

Young, 990 F.2d at 471.

_____

We conclude

that in Hayes

case it does.

As we said in United States v. Dunn, 946 F.2d

_____________
____
615, 621 (9th

Cir.), cert denied.

___________

thereby

____ U.S.

____, 112 S. Ct. 401, 116 L.Ed.2d 350 (1991),

and United States v. Huffhines, 967 F.2d 314,
_____________
_________

321 (9th Cir.

1992); sawed-off shotguns

inherently dangerous, lack

for violent

improper

usefulness except

and criminal purposes

possession involves

and their

the substantial

physical force.

are

These

risk of

attributes

led Congress to require registration of these

weapons.

Huffhines, 967 F.2d at 321.

_________

-17-

ACCA

for armed career criminals.

Accordingly, Fortes' 262-month

sentence on count 1 was warranted.4

III.

We

other

have

considered, and

contentions:

that the

granting a continuance

witness a

find without

district court

informant,

evidence the

out-of-court declaration of

conspirator,

and

firearm

in

offense"

...

(3)

4B1.4(c)(3) in

with

meaning

calculating

(1) not

and call as a

(2) admitting

one found to be

determining that

connection

within the

erred in

to enable Fortes to locate

government confidential

merit, Fortes'

Fortes

...

of U.S.S.G.

Fortes' offense

a co-

"possessed

controlled

in

[a]

substance

4B1.4(b)(3) and

level and

criminal

history category.

Conclusion
__________

For

the

foregoing

reasons

Fortes'

conviction

and

sentence are affirmed.

________

____________________

We thus find it

whether

Fortes

unnecessary to address the

prior conviction

further question

for conspiracy to

commit bank

robbery was also properly countable as an ACCA predicate "violent

felony."

Compare
_______

United States
_____________

Cir.), cert. denied, 498 U.S.

____________

v.

Preston, 910
_______

F.2d 81

(3d

1103 (1991), with United States v.

____ _____________

King, 979 F.2d 801 (10th Cir. 1992).

____

-18-