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

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Amendment protection. United States v. Miller, 307 U.S. 174, 177 (1939) (“[W]e cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.”). Because the overwhelming weight of authority indicates the inherent dangerousness of § 5845 firearms, including sawed-off shotguns, this Court should conclude the possession of it presents a serious potential risk of injury to others. 2. Possession of an unregistered sawed-off shotgun presents a degree of risk similar to the enumerated offenses because it serves no lawful purpose. “In general, levels of risk divide crimes that qualify [under the residual clause] from those that do not.” Sykes, 131 S. Ct. at 2275 (citing James v. United States, 550 U.S. 192 (2006)). To qualify as a violent felony, a crime’s level of risk does not have to be as great as an enumerated offense. James, 550 U.S. at 209. Rather, this Court only requires a minimal degree of risk. Id. at 207–08 (“Congress intended to encompass possibilities even more contingent or remote than simple ‘risk,’ much less certainty.”). When the offense is not analogous to an enumerated offense, this Court uses other methods to assess the degree of risk such as intuition, statistics, legislative history, and other persuasive authorities. Chambers v. United States, 550 U.S. 122, 129 (2009) (acknowledging that intuition and a report from the United States Sentencing Commission (USSC) supported a level of risk determination); Sykes, 131 S. Ct. at 2274 (stating that, while statistics are not “dispositive,” they can confirm “commonsense conclusion[s]”); Taylor, 495 U.S. at 597 (performing a historical analysis); James, 550 U.S. at 206 (using the USSC Guidelines as persuasive authority). Legislative history, the United States Sentencing Guidelines, and intuition all indicate that the degree of risk associated with possession of a sawed-off shotgun is at least as high as the enumerated offenses. Because the legislature found this weapon has no lawful purpose, it is fair to presume that possession of the weapon creates more than a potential risk of harm. Fortes, 141 21
F.3d at 7 (commenting that Congress found § 5845 weapons “lacking in lawful purposes”); Staples, 511 U.S. at 626 (Stevens, J., dissenting) (“Congress therefore could reasonably presume that a person found in possession of an unregistered machinegun or sawed-off shotgun intended to use it for criminal purposes.”). Since the creation of the National Firearms Act in 1934, Congress has viewed the possession of a sawed-off shotgun as a reliable predictor of future violence. See NFA Hearing at 111 (Statement of Congressman Fuller) (“If a man is carrying that type of weapon, . . . he ought to be taken into custody anyway, because we know he is carrying it for an unlawful purpose; I am referring to such a weapon as a sawed-off shotgun or machinegun, or a silencer.”). The United States Sentencing Guidelines also serve as persuasive authority that the possession of an unregistered sawed-off shotgun is a violent felony. Under congressional mandate, the USSC drafted a sentencing guide section addressing armed career criminals. 28 U.S.C. § 994(h) (2006). The guideline refers to crimes of violence rather than violent felonies, but includes a residual clause that mirrors the ACCA. U.S. Sentencing Guidelines Manual § 4B1.2 (2009). Although the ACCA’s definition of violent felony and the USSC Guidelines definition of “crimes of violence” are similar, the Commission’s predicate felony determinations do not bind this Court. James, 550 U.S. at 207. Nevertheless, this Court is justified in turning to the Commission for guidance when applying the ACCA’s provisions. See id. (basing the holding in part on the USSC having reached a similar conclusion); Chambers, 555 U.S. at 129 (using research conducted by the Commission to assess risk). This Court, in James v. United States, relied on the Sentencing Commission because the Commission “is better able than any individual court to make an informed judgment about the relationship between a particular 22
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 and 28: determine whether an offense qualif
Page 29: eexamined the same issue in light o
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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