United States v. Wendell Brown

United States Court of Appeals

For the Eighth Circuit

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No. 13-1590

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Wendell Terrell Brown

lllllllllllllllllllll Defendant - Appellant

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Appeal from United States District Court

for the District of Minnesota - St. Paul

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Submitted: October 21, 2013

Filed: October 30, 2013

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Before BYE, SMITH, and BENTON, Circuit Judges.

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BENTON, Circuit Judge.

Wendell Terrell Brown pled guilty to being a felon in possession of a firearm

in violation of 18 U.S.C. § 922(g). He appeals, attacking the use in his sentencing of

the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). He also argues that the

residual clause of 18 U.S.C. § 924(e)(2)(B)(ii) is unconstitutionally vague. Rejecting

Brown’s arguments, the district court1 sentenced him to the ACCA’s mandatory

minimum 180 months’ imprisonment. Having jurisdiction under 28 U.S.C. § 1291,

this court affirms.

I.

The ACCA imposes a mandatory minimum of 180 months if a felon in

possession of a firearm has three prior convictions for violent felonies or serious drug

offenses. 18 U.S.C. § 924(e)(1). At sentencing, the district court found that three of

Brown’s prior convictions—for terroristic threats, possession of a short-barreled

shotgun, and sale of a controlled substance—triggered this mandatory minimum.

Brown objected, arguing that the shotgun conviction is not a violent felony. This

court reviews de novo whether a prior conviction qualifies as a predicate offense

under the ACCA. United States v. Lillard, 685 F.3d 773, 774 (8th Cir. 2012), citing

United States v. Gordon, 557 F.3d 623, 624 (8th Cir. 2009).

The ACCA defines a “violent felony” as a crime punishable by a term of

imprisonment exceeding one year that:

(i) has as an element the use, attempted use, or threatened use of

physical force against the person of another; or

(ii) is burglary, arson, or extortion, involves use of explosives, or

otherwise involves conduct that presents a serious potential risk of

physical injury to another.

18 U.S.C. § 924(e)(2)(B).

1

The Honorable Richard H. Kyle, United States District Judge for the District

of Minnesota.

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Brown violated a Minnesota statute providing that “whoever owns, possesses,

or operates . . . a short-barreled shotgun may be sentenced to imprisonment for not

more than five years.” Minn. Stat. § 609.67 (1993). This crime does not have an

element of force as required in clause (i) and is not listed in clause (ii). The issue is

whether possession of a short-barreled shotgun is within the residual “otherwise”

clause of § 924(e)(2)(B)(ii).

To fall within the residual clause, the prior offense must “present[] a serious

potential risk of physical injury to another” and be “roughly similar, in kind as well

as degree of risk posed” to the offenses listed in § 924(e)(2)(B)(ii). United States v.

Vincent, 575 F.3d 820, 826 (8th Cir. 2009) (citations omitted).

To determine whether a conviction falls within this residual clause, the

Supreme Court identifies its “closest analog” among the listed offenses

and then assesses their equivalent risks. James v. United States, 550

U.S. 192, 193 (2007) (concluding that attempted burglary poses the

same risk of violence as burglary). When comparing an offense to its

closest analog, the Court considers the “offense generically”—not the

circumstances of a specific violation. United States v. Boaz, 558 F.3d

800, 807 (8th Cir. 2009), quoting Begay, 553 U.S. at 141 (viewing the

offense categorically “in terms of how the law defines the offense and

not in terms of how an individual offender might have committed it on

a particular occasion”). The residual clause includes those crimes

“roughly similar, in kind as well as in degree of risk posed, to the

examples themselves.” Begay, 553 U.S. at 143. The Begay Court found

that all the listed crimes involve conduct that makes an offender, later

possessing a gun, more likely to deliberately harm a victim. Id. at 145

(holding that DUI is unlike the listed crimes), at 146 (noting that the

ACCA focuses on the “special danger” created when violent offenders

possess guns). See also Chambers v. United States, 555 U.S. 122, 123

(2009) (failing to report for confinement is inaction, unlike the conduct

inherent in the listed crimes). If the crime categorically presents a risk

like those listed, then it “involves conduct that presents a serious

potential risk of physical injury to another.” Sykes v. Unites States, 564

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U.S. __, __, 131 S. Ct. 2267, 2276 (2011) (fleeing-from-police-in-a-

vehicle categorically presents “a more certain risk” than burglary).

Lillard, 685 F.3d at 775. This court has previously held, under Nebraska and

Arkansas law, that possession of a short-barreled shotgun is within the residual

clause. Id. at 776; Vincent, 575 F.3d at 827.

Brown argues that the Minnesota statute is distinguishable because it has no

express mens rea. The parties dispute whether in Minnesota, when no mens rea is

included in the definition of an offense, criminal intent is an element of the offense.

See Minn. Stat. § 609.02(9) (1997). This court will assume that possession of a

short-barreled shotgun was a strict liability crime when Brown committed it in 1998.2

In contrast, the statutes in Lillard and Vincent had stringent mens rea requirements.

Lillard, 685 F.3d at 776; Vincent, 575 F.3d at 826. When an “offense is ‘akin to

strict liability,’” a “court must inquire into the purposeful, violent, and aggressive

nature of the offense; otherwise, risk is the dispositive factor.” Lillard, 685 F.3d at

776, quoting Sykes, 131 S. Ct. at 2275-76. However, “[i]n many cases the

purposeful, violent, and aggressive inquiry will be redundant with the inquiry into

risk, for crimes that fall within the former formulation and those that present serious

potential risks of physical injury to others tend to be one and the same.” Sykes, 131

S. Ct. at 2275.

Possession of a short-barreled shotgun is categorically purposeful, violent, and

aggressive. “Short shotguns are inherently dangerous because they are not useful

‘except for violent and criminal purposes.’” Lillard, 685 F.3d at 775, quoting United

2

The current pattern jury instruction recommends an express mental state of

knowledge of the fact that the gun is a short-barreled shotgun. See Minn. Dist.

Judges Ass’n, 10A Minnesota Practice, Jury Instruction Guide, CRIMJIG 32.44

(5th ed. supp. 2012). Previous pattern jury instructions did not include an instruction

for Minn. Stat. § 609.67 (1993).

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States v. Childs, 403 F.3d 970, 971 (8th Cir. 2005), quoting United States v.

Allegree, 175 F.3d 648, 651 (8th Cir. 1999) (possession of a short shotgun is a “crime

of violence under U.S.S.G. § 4B1.2”). Possession of a short-barreled shotgun

indicates that the offender is prepared to use violence if necessary and is ready to

enter into conflict. Lillard, 685 F.3d at 776 (citations omitted). “It is illegal to

possess a short shotgun ‘precisely because it enables violence or the threat of

violence.’” Lillard, 685 F.3d at 777, quoting Vincent, 575 F.3d at 826.

Possession of a short-barreled shotgun presents a serious potential risk of

physical injury to others and is similar, in kind as well as degree of risk posed, to the

offenses listed in § 924(e)(2)(B)(ii). The district court properly ruled that Brown’s

conviction is an ACCA-qualifying felony.

II.

Brown also contends that the residual clause of 18 U.S.C. § 924(e)(2)(B)(ii) is

unconstitutionally vague. Citing Justice Scalia’s dissenting opinions in recent ACCA

cases, Brown claims the residual clause does not give fair notice of what crimes

trigger the statute’s application. Reviewing Brown’s constitutional claim de novo,

United States v. Smith, 656 F.3d 821, 826 (8th Cir. 2011), this court disagrees. The

Supreme Court has rejected this argument twice in recent years. Sykes, 131 S. Ct. at

2277; James v. United States, 550 U.S. 192, 210 n.6 (2007)(“[W]e are not persuaded

by Justice Scalia’s suggestion . . . that the residual provision is unconstitutionally

vague.”). The district court properly rejected Brown’s contention. See also United

States v. Ramsey, 498 Fed. Appx. 653 (8th Cir. 2013) (unpublished) (rejecting a

claim that the residual clause is vague).

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The judgment of the district court is affirmed.

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