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

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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
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: The First Circuit found a protectiv
Page 29 and 30: eexamined the same issue in light o
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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