United States v. Carl Miller

In the

United States Court of Appeals

For the Seventh Circuit

No. 11-3788

U NITED S TATES OF A MERICA,

Plaintiff-Appellee,

v.

C ARL T. M ILLER,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 2:11-cr-00023-RTR-1—Rudolph T. Randa, Judge.

A RGUED M AY 29, 2012—D ECIDED JUNE 27, 2013

Before W OOD , S YKES, and T INDER, Circuit Judges.

T INDER, Circuit Judge. When Carl T. Miller pleaded guilty

to being a felon in possession of a firearm in 2011, the

government contended that three of his prior convic-

tions qualified as “violent felonies” requiring a man-

datory minimum 15-year sentence under the Armed

Career Criminal Act (ACCA). See 18 U.S.C. § 924(e)(1).

Miller did not dispute that his two burglary convictions

qualified as violent felonies but he objected to the third

2 No. 11-3788

prior offense—possession of a short-barreled shotgun

in violation of Wisconsin law. The objection required

the district court to construe the meaning of ACCA’s

“residual clause.” 1 The district court denied the objec-

tion because our decision in United States v. Upton held

that an indistinguishable Illinois offense qualified as an

ACCA residual clause violent felony. 512 F.3d 394, 404

(7th Cir. 2008). Miller argues that post-Upton Supreme

Court decisions construing the residual clause require a

different result. We agree that although ACCA remains

unchanged since Upton, if nothing else, the approach

for evaluating prior convictions under ACCA’s residual

clause has changed. See United States v. Jones, 689 F.3d 696,

699 (7th Cir. 2012) (ACCA’s “residual clause has eluded

stable construction”), cert. denied, 133 S. Ct. 895 (2013).

Accordingly, whether the mere possession of a short-

barreled shotgun qualifies as a violent felony under

ACCA deserves careful reconsideration, and in doing

so, we find that Miller is correct; mere possession of a

1

The relevant portion of ACCA defines “violent felony” as:

any crime punishable by imprisonment for a term

exceeding one year . . . that—

...

(ii) is burglary, arson, or extortion, involves

use of explosives, or otherwise involves con-

duct that presents a serious potential risk of

physical injury to another . . . .

18 U.S.C. § 924(e)(2)(B) (emphasis supplied to what will be

referred to throughout this opinion as the “residual clause”).

No. 11-3788 3

short-barreled shotgun is not a violent felony for pur-

poses of ACCA.

Miller and the government agree that in order for his

conviction for possession of a short-barreled shotgun in

violation of Wisconsin Statute § 941.28(2) to qualify as

an ACCA violent felony, it must do so under the

residual clause. To determine whether a conviction fits

within the residual clause, we apply a categorical

approach by examining the offense’s statutory elements

as opposed to a defendant’s actual conduct. See United

States v. Fife, 624 F.3d 441, 445 (7th Cir. 2010). The

relevant text of the statute reads: “No person may . . .

possess . . . a short-barreled shotgun or short-barreled

rifle.” Wis. Stat. § 941.28(2).2 We review de novo, see

Fife, 624 F.3d at 445, and consider the offense as it ordi-

narily is committed, not trying to imagine whether in

some unusual situations it could be committed in ways

that pose more, or less, serious potential for risk of

injury to another, see James v. United States, 550 U.S.

192, 207-09 (2007).

2

The full text reads:

No person may sell or offer to sell, transport, purchase,

possess or go armed with a short-barreled shotgun or

short-barreled rifle.

Wis. Stat. § 941.28(2). Although the law can be violated in

several ways, some of which may pose more potential risk

of injury than others, the parties agree that Miller’s convic-

tion was for simple possession of a short-barreled shotgun,

so we do not need to address divisibility. See Fife, 624 F.3d

at 445-46.

4 No. 11-3788

The Supreme Court has addressed the residual clause

four times in a recent five-year period.3 Perhaps no

single statutory clause has ever received more frequent

Supreme Court attention in such a short period of time

or such a proliferation of lower court reaction. Although

Congress has done nothing to add clarity to ACCA’s

residual clause, cases decided after Upton direct us to a

different understanding of how to apply the residual

clause.

We start with Begay v. United States, decided a

few months after Upton, in which the Court considered

whether driving under the influence of alcohol (DUI)

was a violent felony under the residual clause. 553 U.S.

137, 141 (2008). The Court found that the listed ex-

amples, “burglary, arson, extortion, or crimes involving

the use of explosives,” illustrated the types of crimes

that fell within the law’s scope and indicated “that the

statute covers only similar crimes, rather than every

crime that ‘presents a serious potential risk of phys-

ical injury to another.’ ” Id. at 142 (quoting 18 U.S.C.

§ 924(e)(2)(B)(ii)). The Court reasoned that the enumer-

ated crimes limited residual clause offenses to those

“that are roughly similar, in kind as well as in degree

of risk posed, to the examples themselves.” Id. at 143.

And DUI differed from burglary, arson, extortion, and

crimes involving the use of explosives in one pertinent

and important respect: the absence of “purposeful,

violent, and aggressive conduct.” Id. at 145. DUI com-

3

A concise synopsis of the Court’s recent treatments of

the residual clause is found at Jones, 689 F.3d at 700, n.1.

No. 11-3788 5

pared closely to crimes imposing strict liability (or

perhaps those involving negligence or recklessness),

whereas the listed crimes revealed “a degree of

callousness toward risk” and “an increased likelihood

that the offender is the kind of person who might delib-

erately point the gun and pull the trigger.” Id. at 146. In

the end, the Court concluded that DUI was so “unlike

the provision’s listed examples” that Congress could

not have intended the residual clause to cover it. Id. at 142.

Upon the issuance of Begay, we began to understand

residual-clause crimes to be those that “(1) present a

serious potential risk of physical injury similar in degree

to the enumerated crimes of burglary, arson, extortion,

or crimes involving the use of explosives; and (2) involve

the same or similar kind of ‘purposeful, violent, and

aggressive’ conduct as the enumerated crimes.” Fife,

624 F.3d at 447 (quoting United States v. Dismuke, 593

F.3d 582, 591 (7th Cir. 2010)).

But shortly thereafter, Sykes v. United States deemed

Begay’s “purposeful, violent, and aggressive” language

to be redundant of the risk inquiry required by the

residual clause, concluding that these adjectives served

merely as a useful way to explain that the crime in

Begay was akin to strict liability, negligence, and reck-

lessness crimes. See 131 S. Ct. 2267, 2275-76 (2011).

Instead, the predicate conviction’s level of risk gen-

erally serves as the dispositive factor, id. at 2275, but

the enumerated crimes—burglary, extortion, arson, and

crimes involving use of explosives—still “provide

guidance in” determining whether an offense presents a

serious risk of physical injury to another, id. at 2273. The

6 No. 11-3788

Court then determined that Indiana’s prohibition on

flight from an officer by vehicle fit within the residual

clause because the inherent nature of the offense

includes an indifference to the safety of property and

persons; one “who takes flight and creates a risk of [a

potentially violent and even lethal] dimension takes

action similar in degree of danger to that involved

in arson, which also entails intentional release of a de-

structive force dangerous to others.” Id. “Burglary is dan-

gerous because it can end in confrontation leading

to violence,” which was true “but to an even greater

degree” with fleeing police by vehicle. Id. (citing in part

James, 550 U.S. at 200). As it did in Chambers v. United

States, 555 U.S. 122, 129 (2009), decided a year after

Begay, the Court in Sykes also considered statistical data

(although noting that such data is not dispositive), ulti-

mately concluding that the risks posed by fleeing

police by vehicle may exceed those of burglary and

arson. 131 S. Ct. at 2274-75.

So, following Sykes, the question for us in this

case is whether the risk posed by the possession of a

short-barreled shotgun constitutes a serious risk of

injury to another, using the offenses enumerated in

§ 924(e)(2)(B)(ii) as guides to evaluate the nature and

degree of that risk. See Sykes, 131 S. Ct. at 2273. The con-

cerns discussed in Begay—that the crime be “purposeful,

violent, and aggressive”—are not present here because,

as explained in Sykes, those terms simply explained why

a crime akin to strict liability, negligence, or reck-

lessness crimes does not fit within the residual clause.

But criminal possession requires knowledge in Wis-

No. 11-3788 7

consin, State v. Christel, 211 N.W.2d 801, 809 (Wis. 1973),

disapproved of on other grounds in State v. Poellinger, 451

N.W.2d 752, 757 & n.5 (Wis. 1990); see also Doscher v.

State, 214 N.W. 359, 360 (Wis. 1927) (finding contraband

on premises not enough to warrant conviction without

showing “conscious possession”); Schwartz v. State, 212

N.W. 664, 665 (Wis. 1927) (“Possession signifies some

right of dominion or control over the thing possessed.”),

so that distinguishes this case from Begay, and explains

why we don’t have to go through Begay’s “purposeful,

violent, and aggressive” analysis, see Sykes, 131 S. Ct.

at 2275.

We therefore turn to the risk analysis as directed by

Sykes and ask whether a violation of Wisconsin’s short-

barreled shotgun possession prohibition, in the ordinary

case, presents a serious potential risk of physical injury

as guided by the types and degrees of risks presented

by the enumerated crimes—burglary, arson, extortion,

and crimes involving the use of explosives. Id. at 2273. A

short-barreled shotgun can be possessed in a variety of cir-

cumstances, ranging from a situation which is patently

violent, for example, when one is used in the course of

a robbery, to those in which violence is at best latent, such

as when a short-barreled shotgun is hidden away at a

home, perhaps even unloaded or disassembled. Wisconsin

also recognizes the concept of joint and constructive

possession. E.g., State v. Mercer, 782 N.W.2d 125, 131 (Wis.

App. 2010) (citing Schmidt v. State, 253 N.W.2d 204, 208

(Wis. 1977)). But what is the ordinary case of mere posses-

sion? We know that we are not simply to imagine the

ways in which the statute can be violated with minimal

8 No. 11-3788

risk of physical injury to others. See James, 550 U.S. at 208.

Nor are we to hypothesize dangerous ways in which

violations could occur. See United States v. Hampton, 675

F.3d 720, 731 (7th Cir. 2012); United States v. Sonnenberg, 628

F.3d 361, 365-66 (7th Cir. 2010). Instead, we are to focus on

the “generic crime as ordinarily committed—that is,

whether most instances of the crime present the required

degree of risk.” Hampton, 675 F.3d at 731 (citing Dismuke,

593 F.3d at 594).

As noted, in some cases, consideration has been given

to statistical data which demonstrates the crime’s risk

of violence. For example, as explained in Sykes, the poten-

tial collateral consequences of vehicular flight from an

officer placed the risk of harm to other persons above

two of the enumerated offenses: for every 100 burglaries,

there were 3.2 injuries, and for every 100 arsons, there

were 3.3 injuries. 131 S. Ct. at 2274-75. And for every

100 police pursuits, there were just over 4 injuries. Id. at

2274. But in this case, the government pointed to no

such data, either in the trial court or on appeal, and our

function on appellate review is not to create a record.

Looking at the reported Wisconsin decisions, short-

barreled shotgun cases often involve a passive posses-

sion in which the weapon is not exposed to others. See

State v. Murdock, 455 N.W.2d 618, 620 (Wis. 1990) (closed

pantry drawers), overruled on other grounds by State v.

Dearborn, 786 N.W.2d 97, 105 (Wis. 2010); State v. Garrett,

635 N.W.2d 615, 617 (Wis. Ct. App. 2001) (closet); State

v. Stankus, 582 N.W.2d 468, 470-71 (Wis. Ct. App. 1998)

(locked in truck of a car); State v. Rardon, 518 N.W.2d

No. 11-3788 9

330, 332 (Wis. Ct. App. 1994) (disassembled); State

v. Johnson, 491 N.W.2d 110, 112 (Wis. Ct. App. 1992)

(missing firing pin). In these cases, the firearm poses

no immediate risk to anyone but can still serve as a

factual basis for a conviction. The range of conduct which

could constitute knowing possession of a short-barreled

shotgun can vary on a scale of risk of danger to others,

but the mere possession of a weapon doesn’t have

to involve any risk. For example, brandishing the

weapon, loading it, or actually pulling the trigger are

all highly dangerous activities. But those separate

actions go beyond the mere possession of the weapon.

Something as simple as stuffing a short-barreled shot-

gun (regardless of whether loaded or even assembled)

under a mattress, a relatively passive and not inherently

violent act, is all it takes to violate Wisconsin’s law

against possessing short-barreled shotguns.

This leads us to conclude that the risk of physical

injury to another presented by the mere possession of a

short-barreled shotgun is not in the same league as the

risks presented by the offenses of burglary, arson, ex-

tortion, or crimes involving the use of explosives. One

can imagine scenarios in which the mere possession of

such a weapon poses a risk of harm to others, e.g., if

the possession took place in a public place and was

visible to others, such as in a bank. But just as our task

is not a search for a hypothetical way in which a violent

crime can be committed without risky behavior, James,

550 U.S. at 208, we are not to speculate about how a

crime can be committed in a risky manner. Instead, we

10 No. 11-3788

are to look at the conduct required by the statute, that is,

the ordinary manner of violating the law. And in the

ordinary case, the possession of a short-barreled

shotgun does not create any potential risks of harm to

another person because all that is involved is the

knowing possession of a weapon. As explained in

Sykes, the potential collateral consequences of vehicular

flight placed the risk of harm to other persons above

burglary and arsons. 131 S. Ct. at 2274-75. But the poten-

tial collateral consequences of simple possession of a

short-barreled shotgun are much harder to imagine. Even

though a short-barreled shotgun is quite dangerous, its

real risks will almost always manifest only when used

or carried in a manner causing others to react. Cf.

Chambers, 555 U.S. at 128-29 (crime of “failure to report”

involves the offender “doing something” but “there is

no reason to believe that the something poses a serious

potential risk of physical injury”); United States v. Sims, 683

F.3d 815, 817 (7th Cir.) (possession crimes are typically

passive offenses), cert. denied, 133 S. Ct. 802 (2012).

We recognize that possession of a short-barreled shot-

gun suggests that the possessor might take a step, if

presented with the chance, toward using it with its ad-

vantages of enhanced ability to conceal and wide spread

of shot. See Upton, 512 F.3d at 404; see also United States

v. Vincent, 575 F.3d 820, 826 (8th Cir. 2009) (citing

Upton). There is also the risk that brandishing such an

infamous firearm may prompt a dangerous response

from others. But the crime of simple possession does not

include any of this behavior as an inherent aspect of the

offense. Missing is the action present in the enumerated

No. 11-3788 11

§ 924(e)(2)(B)(ii) crimes, as vividly explained in Sykes in

the crime of flight from an officer by vehicle. 131 S. Ct. at

2274 (involving “confrontations that initiate and ter-

minate the incident,” and the demand for pursuit with

“high risks of crashes” followed by a “serious potential

risks of physical injury to others”). Similarly in James,

the crime of attempted burglary qualified as a violent

felony not because “the simple physical act of wrong-

fully entering onto another’s property” carried some

risk, but because of the “main risk” from a possible “face-

to-face confrontation between the burglar and a third

party.” 550 U.S. at 203-04.

Mere possession of a weapon has nothing in common

with the risk-creating aspects of the listed crimes. Arson

involves the unleashing of a dangerous force which may

be intended only to damage physical structures, but

which may harm individuals, such as responders, as a

result. Extortion implicates the threat of a harm to

others if demands are not met, as well as the great poten-

tial for a reaction to the threat, perhaps like the potential

reaction to flight from law enforcement, which can re-

sult in a tragic confrontation. And like arson, the use of

explosives unleashes an uncontrollable force that poses

a high risk of harming those in its path or responding

to its consequences. Perhaps the use of explosives is

the closest analogue to the possession of a dangerous

weapon; but it isn’t very close at all. A closer compari-

son would be an offense involving possession of explo-

sives, but ACCA only lists crimes that involve the use

of such dangerous materials, not the inert act of pos-

sessing them. See 18 U.S.C. § 924(e)(2)(B)(ii); United

12 No. 11-3788

States v. McGill, 618 F.3d 1273, 1277 (11th Cir. 2010) (per

curiam) (“Congress included only the use, but not the

possession of, explosives among the ACCA’s example

crimes.”). Of course, if a short-barreled shotgun is as-

sembled, loaded, and fired, the similarity to using ex-

plosives is closer. But the mere possession of the gun

does not inherently pose those risks.

The government maintains that a short-barreled shot-

gun is a “weapon of personal confrontation” because it

is “less likely to be carried defensively” and is “possessed

for offensive purposes.” But while these enhanced risks

may compare to the risk levels associated with the

mere possession of a hunting rifle or handgun, they do

not compare to the risks posed by the conduct under-

lying burglary, arson, extortion, and offenses involving

the use of explosives. We do not doubt that a short-bar-

reled shotgun may inherently be a more dangerous

weapon than an ordinary rifle or handgun, but until

the short-barreled shotgun is exposed or revealed to

others, the type of danger existing in the listed crimes is

not present. It is only manifested when the weapon

is brought out from under the mattress or out of the

closet or trunk.

Unlike past cases, e.g., Hampton, 675 F.3d at 730

(rejecting report on assaults causing officer injury), the

government does not support its position with statistics.

Instead, it points to the Application Notes for the career

offender provision in the Sentencing Guidelines, which

includes unlawful possession of a sawed-off shotgun in

its examples of crimes of violence, U.S.S.G. § 4B1.2, Ap-

No. 11-3788 13

plication Notes, and our past practice of treating the

Guidelines’ definition of “crime of violence” as inter-

changeable with the ACCA definition of “violent fel-

ony,” e.g., United States v. Rosas, 410 F.3d 332, 335-36

(7th Cir. 2005) (per curiam). We recently held that the

Application Note’s instruction that inchoate offenses

such as conspiracy are crimes of violence when the un-

derlying crime is a crime of violence is dispositive

for purposes of the Guidelines, even if the result is dif-

ferent under nearly identical language in ACCA. United

States v. Raupp, 677 F.3d 756, 758-61 (7th Cir.), cert.

denied, 133 S. Ct. 610 (2012).

What weight, if any, the Guidelines’ Application Notes

should be given in interpreting criminal statutes is an

interesting question in general, but a close examination

of the Application Notes relevant in this case reveals

that relying on those notes to decide this case would

place us on shaky ground. The Commission added the

possession of a sawed-off shotgun as a “crime of vio-

lence” in 2004 (before James, Begay, Chambers and Sykes

were decided) because of (1) Congress’s determination

in the National Firearms Act, see 26 U.S.C. § 5845(a), that

such weapons “are inherently dangerous and when

possessed unlawfully serve only violent purposes” and

(2) a number of courts had found that possessing these

types of weapons presents a serious potential risk of

physical injury to another. See U.S.S.G. § 4B1.2, 2004

Amendments. As explained above, how courts look at

ACCA’s residual clause has changed since this amend-

ment. Although Congress quite rightly found that such

weapons serve no legitimate purpose, see Conf. Rep. No.

14 No. 11-3788

90-1956, reprinted in 1968 U.S.C.C.A.N. 4426, 4434 (1968)

(“National Firearms Act covers gangster-type weapons

such as machineguns, sawed-off shotguns, short-barreled

rifles, mufflers, and silencers.”); Harry Henderson, Gun

Control 17 (2005) (Congress imposed in 1934 a $200 tax

on sawed-off shotguns because their shortness allowed

for easy concealment making them particularly useful

to criminals), that doesn’t mean that their mere posses-

sion presents a degree or type of risk of violence com-

parable to burglary, arson, extortion, or crimes in-

volving the use of explosives. So even if Miller’s convic-

tion for possessing a short-barreled shotgun qualified as

a crime of violence under the Guidelines, it does not

lend support to interpreting ACCA’s statutory text in a

similar manner.

Before Sykes, Upton held that possession of a sawed-

off shotgun in violation of an Illinois law 4 constituted

a violent felony under ACCA’s residual clause. We

reached that conclusion primarily because we had

already determined that such possession was a “crime

of violence” for purposes of the Guidelines. 512 F.3d at

404 (citing United States v. Brazeau, 237 F.3d 842, 844 (7th

Cir. 2001)). In reaching that result, we noted that posses-

sion of a sawed-off shotgun poses a serious potential risk

4

“A person commits the offense of unlawful use of weapons

when he knowingly . . . possesses . . . a shotgun having one

or more barrels less than 18 inches in length or any weapon

made from a . . . shotgun . . . if such a weapon as modified

has an overall length of less than 26 inches.” 720 ILCS 5/24-

1(a)(7)(ii) (2007).

No. 11-3788 15

of physical injury because of the illegitimate purposes

for which people use such firearms:

People do not shorten their shotguns to hunt or

shoot skeet. Instead, the shortened barrel makes

the guns easier to conceal and increases the

spread of the shot when firing at close range—

facts that spurred Congress to require the regis-

tration of all sawed-off shotguns, along with

other dangerous weapons like bazookas, mortars,

pipe bombs, and machine guns.

Id. This view of sawed-off shotguns is sensible and we

are not changing that general view here. But given the

development in the framework for evaluating whether

an offense qualifies for the residual clause, this recogni-

tion of the inherent aspects of a short-barreled shotgun

is no longer sufficient. Upton, unaided by prescience of

the subsequent line of Supreme Court ACCA cases dis-

cussed above, did not address whether the risks posed

by the mere possession of a sawed-off shotgun were

comparable to the listed offenses.

But even more recently, the Eighth Circuit in United

States v. Vincent found that the crime of possession of a

sawed-off shotgun was a violent felony under ACCA’s

residual clause because “it enables violence or the threat

of violence” and makes it more likely that the offender

will later use that weapon to harm someone. 575 F.3d

at 826; see also United States v. Lillard, 685 F.3d 773, 777

(8th Cir. 2012) (reaffirming Vincent) Vincent also relied

on the commentary to U.S.S.G. § 4B1.2(a) as persuasive

authority. Vincent considered “whether possession of a

16 No. 11-3788

sawed-off shotgun is roughly similar, in kind as well as

degree of risk posed, to the offenses [in the residual

clause]—burglary, arson, extortion, and the use of explo-

sives.” 575 F.3d at 826 (emphasis added). It likened a

sawed-off shotgun to explosives: “Like explosives,

a sawed-off shotgun can inflict indiscriminate carnage.”

Id. True enough, but the residual clause doesn’t make

possession of explosives a “violent felony.” See 18 U.S.C.

§ 924(e)(2)(B)(ii); McGill, 618 F.3d at 1277 (“Congress

included only the use, but not the possession of,

explosives among the ACCA’s example crimes.”). We do

not disagree with Vincent’s discussion of the sawed-off

shotgun’s ability to enable violence and that the

possession of such a weapon makes it more likely that

the offender will later use it. We simply don’t think

that the latent risks inherent in the offense of possessing

a short-barreled shotgun are sufficient to qualify for

the residual clause when the crimes from which we

are instructed to guide our determination—burglary,

arson, extortion, and crimes involving the use of ex-

plosives—all are inherently risky without that extra

step required for the risk to manifest.5

Our holding is consistent with McGill’s ultimate con-

clusion, 618 F.3d at 1277-79 (possession of a short-

5

The First Circuit also has held that possession of a sawed-off

shotgun is a violent felony under ACCA’s residual clause, see

United States v. Fortes 141 F.3d 1, 6-8 (1st Cir. 1998), relying,

like the Eighth Circuit, on the weapon’s inherent dangerous-

ness and lack of lawful use. Our disagreement with Vincent’s

reasoning applies to the Fortes decision as well.

No. 11-3788 17

barreled shotgun is not a violent felony under ACCA

because it is not “similar in kind” to the “ ‘use of explo-

sives” or to the other crimes listed in ACCA’s residual

clause), and with United States v. Amos, 501 F.3d 524, 528-

30 (6th Cir. 2007) (holding that possession of a sawed-

off shotgun is not a violent felony under ACCA because

“possession does not fit well with the more active

crimes included in the statute” and not all instances

of sawed-off shotgun possession pose a risk of vio-

lence),6 which were decided without the benefit of

Sykes. We note, however, our disagreement with McGill’s

assessment of the risk posed by possession of a short-

barreled shotgun, see 618 F.3d at 1276 (such possession

“presents a serious potential risk of physical injury to

another”), and our agreement with Amos’s conclusion

regarding that risk, see 501 F.3d at 528-29 (noting a dis-

tinction between crimes that carry “future risks of vio-

lence” and crimes that carry “risk of violence”). Because

we hold that the developments in this area of the law

6

The Fourth Circuit initially found possession of a weapon

of mass destruction a violent felony, but after the Supreme

Court remanded in light of Begay, the court did a quick about-

face. United States v. Haste, 292 F. App’x 249, 250 (4th Cir. 2008)

(per curiam). United States v. Crampton also held that posses-

sion of an unregistered short-barreled shotgun is an ACCA

violent felony, 519 F.3d 893, 898 (9th Cir. 2008), but the Court

also vacated and remanded that case in light of Begay and

Chambers, see 555 U.S. 1133 (2009), and no subsequent deci-

sion has been reported.

18 No. 11-3788

require a different result than the one reached in Upton, 7

it is unnecessary to address Miller’s constitutional ar-

guments.

We V ACATE Miller’s sentence and R EMAND for resen-

tencing.

7

This opinion has been circulated among all judges of this

court in regular active service pursuant to Cir. R. 40(e). No

judge favored a rehearing en banc on the question of

overruling the relevant portion of Upton, 512 F.3d at 404.

6-27-13