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

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cause physical injury. Unlike Chambers v. United States, where this Court held that failing to report to prison is not a violent felony merely because the felon might be doing something that poses a risk of injury to others, 555 U.S. at 128, possession of an unregistered sawed-off shotgun poses a continuous risk of injury because an officer can show up at any minute. In Begay, this Court stressed the importance of identifying offenses that not only reveal callousness toward risk, but also show an increased likelihood that the offender is the kind of person who might deliberately harm another. 553 U.S. at 146, 148. The NFA was purposefully limited to a “narrow category of weapons such as submachineguns (sic) and sawed-off shotguns.” Staples, 511 U.S. at 626 (1994) (Stevens, J., dissenting). These were the weapons characteristically used only by professional gangsters like Al Capone, Pretty Boy Floyd, and their henchman. Id. Congress could therefore, “reasonably presume that a person in possession of an unregistered machinegun or sawed-off shotgun intended to use it for criminal purposes.” NFA Hearing at 113 (noting that by including only machine guns and sawed-off shotguns, “Congress will have done all that can be done to assist the States in the suppression of felonies.”). Sawed-off shotguns are indicative of future violent crimes, as the hearing suggests, and possession of a sawed-off shotgun is the kind of risk Begay stresses should be a “violent felony” under the ACCA. Begay, 553 U.S. at 1587. Indeed, it is this type of crime that “is characteristic of the armed career criminal.” Sykes, 131 S. Ct. at 2289. Similarly, Congress determined that possession of an unregistered sawed-off shotgun is so grievous it is also considered an “aggravated felony” under 8 U.S.C. § 1101 (2006 & Supp. 2012) (incorporating by reference 26 U.S.C § 5861). Other offenses in this provision include murder, rape, sexual abuse of a minor, robbery, and other crimes of violence. Id. The aggravated status of these crimes provides for the expedited removal of aliens. 8 U.S.C. § 1228 (2006). The 25
only other listed offenses involving mere possession are the possession of stolen explosives and the possession of humans kept as slaves. § 1101. Including possession of a sawed-off shotgun with these other violent offenses under the phase “aggravated felony” is indicative that Congress views such possession comparable in kind to the other listed offenses. Both the Thirteenth and the Eleventh Circuits have erroneously examined only the “involves the use of explosive” offense to hold that possession of a sawed-off shotgun is not similar in the kind of risk. R. at 10–11; United States v. McGill, 618 F.3d 1273, 1277 (11th Cir. 2010). These circuits wrongly conclude that because the statute uses the phrase “involves use of explosives” rather than “possession of explosives” and possession of explosives and sawed-off shotguns are synonymous under 28 U.S.C. § 5845, Congress must not have intended possession of the sawed-off shotgun to qualify. Id. at 1277. Their argument fails for two reasons. First, 28 U.S.C. § 5845 does not criminalize possession of explosives or a firearm, in the general use of the terms. Rather, it enumerates a subset of explosives that have the same common element as the enumerated firearms: a designed purpose to injure others. § 5845(a) (noting only explosives known as destructive devices such as bombs, grenades, rockets, missiles, and mines are regulated by the NFA). Neither the possession of a firearm nor an explosive is criminal standing alone. See United States v. Posnjak, 457 F.2d 1110, 1115–16 (2d Cir. 1972) (holding that possession of explosives not defined as destructive devices are non- criminal). Explosives, like guns, become criminally possessed when they meet the NFA definition of a firearm and lack registration, or the possessor is a convicted felon. 18 U.S.C. § 842(i)(1) (2006) (criminalizing the possession of explosives by a felon). Because mere possession of explosives is not criminal, it would have been illogical for Congress to list it as a violent felony. However, the use of explosives, much like the possession of an unregistered 26
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 and 32: F.3d at 7 (commenting that Congress
Page 33: Subcommittee on Crime of the House
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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