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

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sawed-off shotgun or bomb, is a felony. 18 U.S.C. § 844(i) (2006). Although known for their destructive capabilities, explosives have lawful purposes, while sawed-off shotguns do not. Fortes, 141 F.3d at 7 (Congress found § 5845 weapons “lacking in lawful purposes”). Therefore, possession of a sawed-off shotgun is more similar to the use of an explosive in kind, than it is to possession of explosives. Further, the lower courts likely read too much into the phrase “involves the use of.” See, e.g., R. at 10. Congress was in the process of passing new legislation regarding explosives and used the phrase to incorporate “various explosives offenses” because they did not “have a single generic term to cover them.” See House Hearing at 15. As the hearing suggests, Congress intended the phrase to include explosive offenses broadly. Id. For these reasons, this Court should hold that the possession of an unregistered sawed- off shotgun poses the same kind of risk as the enumerated offenses. This Court should further hold that the possession of a sawed-off shotgun is a violent felony under the ACCA because it involves conduct that presents a serious potential risk of physical injury to others that is similar in degree, and in kind, to the enumerated offenses. C. Even if this Court were to require “purposeful, violent, and aggressive conduct,” the possession of an unregistered sawed-off shotgun would still qualify as a violent felony. In Begay, this Court stated that a DUI was not a violent felony because it did not “typically involve” purposeful, violent, and aggressive conduct. 553 U.S. at 144–45. This analysis requires a court to look at the conduct of all violations of a particular offense, in the aggregate, to determine whether purposeful, violent, and aggressive conduct is typically present. See Chambers, 555 U.S. at 129 (using statistical analysis to determine the frequency of violence). 27
The possession of an unregistered sawed-off shotgun typically involves conduct that is purposeful, aggressive and violent because “[s]awed off shotguns are notoriously associated . . . with crime.” Shaw, 670 F.3d at 368–69. Although conviction under § 5861 only requires knowing possession of the NFA firearm, Theunick, 651 F.3d at 586, continued possession with knowledge typically indicates the possessor purposes or intends to possess the firearm, see United States v. Watkins, 519 F.2d 294, 298 (D.C. Cir. 1975) (holding that an offense requiring intent to possess is satisfied with knowing possession). Therefore, because § 5861 requires knowing possession, the typical violation involves purposeful conduct. Individuals typically use a sawed-off shotgun as a weapon because it lacks other useful purposes. Serna, 309 F.3d at 864. Further, because there is no lawful purpose for possessing an unregistered sawed-off shotgun, Fortes, 141 F.3d at 7, all such possessions must be for unlawful purposes. The typical purpose behind such unlawful possession, therefore, is violent and aggressive. Serna, 309 F.3d at 864 (“[V]iolence is more likely than not to occur from unlawful possession of a sawed-off shotgun.”). Therefore, knowing possession of an unregistered sawed- off shotgun typically involves conduct that is purposeful, violent, and aggressive. CONCLUSION For the foregoing reasons, this Court should affirm the Thirteenth Circuit’s denial of the Convict’s motion to suppress, reverse the Thirteenth Circuit’s sentence, and remand this case for resentencing with a direction to use the possession of a sawed-off shotgun as a predicate violent felony. 28 Respectfully Submitted, ____________________ Counsel for Respondent March 5, 2013
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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 and 34: Subcommittee on Crime of the House
Page 35: only other listed offenses involvin
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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