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offense and the likelihood of accompanying criminal violence.” James, 550 U.S. at 206 (internal quotations omitted) (quoting United States v. Doe, 960 F.2d 221, 225 (1st Cir. 2007)). In 2003, the USSC amended Application Note 1 of § 4B1.2, the section which mirrors the ACCA, to include the possession of a sawed-off shotgun within the definition of “crime of violence.” 68 Fed. Reg. 75357 (Dec. 30, 2003); § 4B1.2 cmt. n.1 (“Unlawfully possessing a firearm that is of a type described in 26 U.S.C. [§] 5845(a) (e.g., a sawed-off shotgun, silencer, or machine gun) is a ‘crime of violence.’’’). Because the USSC is able to make a well-informed decision on this issue and has concluded that the possession of an unregistered sawed-off shotgun is a crime of violence under a residual clause identical to and enacted for the same purpose as the ACCA, this Court should consider it as strong evidence that the same offense is a violent felony under the ACCA. Further, “the Fourth, [Fifth,] Seventh, Eighth, and Ninth Circuits each have found that, because it is primarily used for violent purposes, possession of a sawed-off shotgun presents a serious potential risk of physical injury and therefore constitutes a ‘crime of violence’ under an identical residual clause in the United States Sentencing Guidelines. Serna, 309 F.3d at 863 (citing the applicable cases). Likewise, intuition suggests the degree of risk in unlawful possession of a sawed-off shotgun is greater than some of the enumerated offenses. “Even a city dweller who watches television or reads newspapers would know the reputation of [a sawed-off shotgun].” United States v. Shaw, 670 F.3d 360, 369 (1st Cir. 2012). In James, this Court explained that the potential of risk a burglary will result in actual harm is small. 550 U.S. at 207. This Court has also recognized that certain offenses, which categorically fit within the enumerated offense of extortion, such as blackmail, present almost no risk of resulting in physical injury. Id. at 208; see also Armed Career Criminal Legislation: Hearing on H.R. 4639 and H.R. 4768 Before the 23
Subcommittee on Crime of the House Committee on the Judiciary, 99th Cong., 2d Sess., 40 (1986) (House Hearing) (noting Congressman Smith’s suggestion to limit extortion because blackmail and the threat of slander present virtually no risk of physical violence). Conversely, the physical design of a sawed-off shotgun demonstrates the degree of risk it poses. United States v. Upton, 512 F.3d 394, 404 (7th Cir. 2008) (“[T]he shortened barrel . . . increases the spread of the shot when fired at close range—[a fact] that spurred Congress to require registration.”). The Eighth Circuit held that it was capable of producing “indiscriminate carnage” similar to an explosive. Vincent, 575 F.3d at 826. The possession of a sawed-off shotgun, therefore, produces at least a similar degree of risk as the enumerated offenses. 3. Possession of an unregistered sawed-off shotgun is similar to the enumerated offenses in the kind of risk posed because it serves no lawful purpose. To qualify as a violent felony, an offense does not need to be violent per se; rather, it must “involve conduct that presents a serious potential risk of physical injury.” § 924 (e)(2)(B)(ii). The enumerated offenses present a risk of harm only when the Court considers other common variables. See James, 550 U.S. at 203. For example, neither burglary nor attempted burglary requires a demonstration of violence; however, both burglary and attempted burglary involve the risk of confrontation that can result in violence. Id. The risk of violence, therefore, depends upon whether there is an encounter. Id. at 204. Likewise, arson does not require a showing of violence; rather, it is the presence of others nearby that creates the risk. Id. at 200 (“[T]he fire could harm firefighters and onlookers.”). In Sykes, this Court reasoned that vehicle flights meet the requisite kind of risk because officers are always present during the encounter and the fleeing felon can use the vehicle to cause physical injury to the officer. Sykes, 131 S. Ct. at 2274. Similarly, officers who encounter individuals with unregistered weapons face the risk that the offender will use the weapon to 24
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 and 30: eexamined the same issue in light o
Page 31: F.3d at 7 (commenting that Congress
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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