FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 06-30219

Plaintiff-Appellee, D.C. No.

v. CR-04-60016-MRH 

GREGG LEON CRAMPTON, ORDER AND

Defendant-Appellant. AMENDED

OPINION 

Appeal from the United States District Court

for the District of Oregon

Michael R. Hogan, Chief District Judge, Presiding

Argued and Submitted

February 8, 2007—Portland, Oregon

Filed December 20, 2007

Amended March 10, 2008

Before: David R. Thompson, Andrew J. Kleinfeld, and

Jay S. Bybee, Circuit Judges.

Opinion by Judge Kleinfeld

2229
COUNSEL

Richard L. Fredericks, P.C., Eugene, Oregon, for the appellant. 

Frank R. Papagni, Jr., Assistant U.S. Attorney, Eugene, Oregon, for the appellee. 

ORDER

The petition for rehearing is DENIED. 

The opinion filed on December 20, 2007, and appearing at

510 F.3d 1108 (9th Cir. 2007), is withdrawn. We substitute

the amended opinion filed herewith. The amended opinion

revises the statement of facts. 

The previously filed opinion took the statement of facts

from the presentence report, based upon what the presentence

report says Ms. Ritch told the arresting officer. Ms. Ritch testified at the sentencing hearing that she had lied to the arresting officer and gave a different statement. Since the

differences are immaterial to the legal analysis, we need not

and do not resolve them. 

Judges Kleinfeld and Bybee have voted to deny the petition

for rehearing en banc, and Judge Thompson has recommended the same. 

UNITED STATES v. CRAMPTON 2231
The full court has been advised of the petition for rehearing

en banc, and no judge of the court has requested a vote on the

petition for rehearing en banc. Fed. R. App. P. 35(b). 

The petition for rehearing en banc is DENIED. 

No further petitions for rehearing or for rehearing en banc

may be filed.

OPINION

KLEINFELD, Circuit Judge: 

We construe aspects of the law criminalizing possession of

firearms by felons and the Armed Career Criminal Act.

FACTS

Gregg Crampton was driving Michelle Ritch and her two

or three-year-old1 around as he made a methamphetamine

delivery. He realized his probation officer had seen him, so he

sped away. They threw methamphetamine and needles out of

the window. Crampton slowed and opened the door, and

Ritch and her child left the moving car. The trooper chasing

Crampton could not catch him, but later that day, the police

found the car on a forest service road, with an empty gun case

and a box of twenty-four .357 cartridges. 

The next day Crampton called Ritch and threatened her.

Fearing that he might visit, she called the police. The police

got a warrant and arrested him at his house the day after that,

and found another sixteen rounds of .357 ammunition in his

pants pocket. 

1Ms. Ritch’s accounts varied as to this and a number of other details.

All of the amendments in this revised opinion elide the facts that are

unclear. None of the changes are material to the substance of the decision.

2232 UNITED STATES v. CRAMPTON
Crampton was indicted for two counts of being a felon in

possession of firearms, one for the day of the high speed

chase and one for the day he was arrested.2 The indictment

stated four prior felonies that would make Crampton eligible

for enhanced punishment under the Armed Career Criminal

Act.3 Three were drug crimes, and one was possession of a

sawed-off shotgun. He made unsuccessful pretrial motions,

which preserved the issues we discuss below, pleaded guilty

to both counts, and was sentenced to serve fifteen years in

prison. 

ANALYSIS

Crampton raises four issues in his well-briefed appeal, all

matters of law that we review de novo.4

A. The Indictment

[1] Crampton argues that the indictment did not state an

offense, because under Oregon law (the state of all four of his

convictions) he was permitted to possess ammunition. Though

2

“Crampton, having been previously convicted of . . . felony crimes

punishable by imprisonment for a term exceeding one year . . . did knowingly possess one or more rounds of ammunition . . . in violation of Title

18, United States Code, Sections 922(g)(1); 924(e).” (Indictment 3-4). 

3

18 U.S.C. § 924(e)(1) (“In the case of a person who violates section

922(g) of this title and has three previous convictions by any court referred

to in section 922(g)(1) of this title for a violent felony or a serious drug

offense, or both, committed on occasions different from one another, such

person shall be fined under this title and imprisoned not less than fifteen

years, and, notwithstanding any other provision of law, the court shall not

suspend the sentence of, or grant a probationary sentence to, such person

with respect to the conviction under section 922(g).”). 

4

See United States v. Smith, 390 F.3d 661, 663 (9th Cir. 2004) (“We

review de novo whether a conviction is a predicate felony for purposes of

the ACCA.”); id. (“We also review de novo whether the district court violated the constitutional rule articulated in Apprendi.”); United States v.

Enslin, 327 F.3d 788, 793 (9th Cir. 2003) (“[w]e review sufficiency of

[an] indictment de novo”). 

UNITED STATES v. CRAMPTON 2233
he was indicted under federal law, there is a complicated

interplay between federal and state law regarding felons possessing firearms.5

 We laid out what amounts to a flowchart of

the interplay in United States v. Valerio:

6

When a court must determine whether a state conviction has been invalidated for purposes of the federal

felon in possession statute, the federal statute

requires the court to proceed along this path: 

1. Use state law to determine whether the defendant has a “conviction.” If not, the defendant is

not guilty. If so, go to step 2. 

2. Determine whether the conviction was

expunged, set aside, the defendant was pardoned, or the defendant’s civil rights were

restored.[7] If not, the conviction stands. If so, go

to step 3. 

3. Determine whether the pardon, expungment, or

restoration of civil rights expressly provides that

the defendant may not ship, transport, possess,

or receive firearms. If so, the conviction stands.

If not, the defendant is not guilty. 

5

18 U.S.C. § 921(a)(20)(B) (“What constitutes a conviction of such a

crime shall be determined in accordance with the law of the jurisdiction

in which the proceedings were held. Any conviction which has been

expunged, or set aside or for which a person has been pardoned or has had

civil rights restored shall not be considered a conviction for purposes of

this chapter, unless such pardon, expungement, or restoration of civil

rights expressly provides that the person may not ship, transport, possess,

or receive firearms.”). 

6United States v. Valerio, 441 F.3d 837, 840 (9th Cir. 2006). 

7The Supreme Court recently held that “the words ‘civil rights restored’

do not cover the case of an offender who lost no civil rights.” Logan v.

United States, No. 06-6911, 552 U.S. ___, at 13 (December 4, 2007). 

2234 UNITED STATES v. CRAMPTON
Crampton does not dispute whether he has past convictions

for step one of the analysis. Step two is satisfied because Oregon law restores felons’ civil rights “automatically upon discharge or parole from imprisonment . . . .”

8

 The extent of

restoration determines, under step three, whether an Oregon

felon can be convicted under the federal felon in possession

law.9 Oregon’s restoration of a felon’s civil rights does not

include restoration of a felon’s right to possess a firearm

because Or. Rev. Stat. § 166.270(1) provides that “[a]ny person who has been convicted of a felony under the law of this

state or any other state, or who has been convicted of a felony

under the laws of the Government of the United States, who

owns or has in the person’s possession or under the person’s

custody or control any firearm commits the crime of felon in

possession of a firearm.” But Oregon does not define “firearm” to include cartridges.10

This case requires elaboration of step three of the Valerio

flowchart. For this step, the federal statute has an “unless”

exception: “unless . . . restoration of civil rights expressly provides that the person may not ship, transport, possess, or

receive firearms.”

11 The federal statute has a general rule, that

felons cannot possess guns, an exception for felons whose

civil rights have been restored, and an exclusion from the

exception where the state restoration of civil rights excludes

guns. Oregon law does not prohibit felons from possessing

ammunition,12 but federal law does.13 Since Crampton’s pos8Or. Rev. Stat. § 137.281(7). 

9

See United States v. Cardwell, 967 F.2d 1349, 1350-51 (9th Cir. 1992).

(“[I]n determining whether a restoration of civil rights expressly prohibits

firearm possession, [a court] must look to the whole of state law at the

time of the restoration.”). 

10Or. Rev. Stat. § 166.210(3) (“ ‘Firearm’ means a weapon, by whatever

name known, which is designed to expel a projectile by the action of powder and which is readily capable of use as a weapon.”). 

1118 U.S.C. § 921(a)(20)(B). 

12See Or. Rev. Stat. § 166.270(1). 

1318 U.S.C. § 922(g) (“It shall be unlawful for any person . . . who has

UNITED STATES v. CRAMPTON 2235
session of .357 cartridges was not prohibited by Oregon law,

he contends that it was not prohibited by federal law. 

Crampton relies on a case upholding his position, United

States v. Miller.

14 In Miller, we held that because Oregon law

did not prohibit possession of ammunition by an Oregon felon

whose civil rights had been restored by operation of Oregon

law, neither did the federal statute.15 But after Miller, the

Supreme Court came down the opposite way in Caron v.

United States.16

Caron holds that under the “unless” clause, if the state convictions would count for some guns, “they count for all and

bar possession of all guns.”

17 State law determines whether

under the “unless” clause a person’s conviction still counts as

a felony conviction for federal purposes.18 If so, federal law,

not state law, controls what firearms he may possess.19

[2] Caron has overruled Miller to the extent that under

Miller state law would determine what kinds of firearms a

felon whose civil rights had been restored could possess.20

The federal felon in possession law prohibits possession of

been convicted in any court of, a crime punishable by imprisonment for

a term exceeding one year . . . to ship or transport in interstate or foreign

commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or

transported in interstate or foreign commerce.”) (emphasis added). 

14United States v. Miller, 105 F.3d 552 (9th Cir. 1997). 

15Id. at 554. 

16Caron v. United States, 524 U.S. 308 (1998). 

17Id. at 314. 

18Caron v. United States, 524 U.S. 308, 316 (1998). 

19Id. 

20Under United States v. Enslin, 327 F.3d 788, 798 (9th Cir. 2003), Miller is still good law with regard to the scienter requirement in the federal

felon in possession law. 

2236 UNITED STATES v. CRAMPTON
“any firearm or ammunition.”

21 Now that we know from

Caron that the federal law controls what Crampton could possess, it does not matter that Oregon did not criminalize Crampton’s possession of ammunition. Federal law does. True,

Caron involved possession of guns, and this case involves

possession of ammunition. That is a distinction without a difference, because (1) Caron holds that we use federal law to

determine what the felon may possess, and (2) the federal

statute prohibits felons from possessing a “firearm or ammunition.”22

B. Armed Career Criminal Act 

The Armed Career Criminal Act imposes a fifteen-year

minimum sentence on people with three prior convictions of

sufficient seriousness.23 Crampton argues that his predicate

offenses were insufficiently serious to impose the harsher

penalties under this statute. 

1. The Sawed-Off Shotgun

One of Crampton’s convictions was for “unlawful possession of a short-barreled shotgun.” The Oregon statute criminalized possession of “a machine gun, short-barreled rifle,

short-barreled shotgun or firearms silencer.” 24 For this state

crime to be a predicate for the Armed Career Criminal Act,

it has to be a “violent felony,” defined for this purpose as

“any crime punishable by imprisonment for a term exceeding

one year . . . that has as an element the use, attempted use, or

threatened use of physical force against the person of another;

or . . . is burglary, arson, or extortion, involves use of explo2118 U.S.C. § 922(g). 

22Id.

2318 U.S.C. § 924(e). 

24Or. Rev. Stat. § 166.272(1). 

UNITED STATES v. CRAMPTON 2237
sives, or otherwise involves conduct that presents a serious

potential risk of physical injury to another.”

25

To determine whether a conviction under state law qualifies

as a violent felony, we use the categorical approach laid out

by the Supreme Court in Taylor v. United States.

26 We look

to see if all the conduct prohibited by relevant state law meets

the ACCA’s definition of a violent felony. Crampton argues

possession should not be classed as a violent felony because

(1) short-barreled shotguns theoretically may have legitimate

uses, such as “snake control in the garden,” and (2) the Oregon statute does not require a criminal purpose. 

[3] Crampton’s argument is foreclosed by controlling circuit precedent. We held in United States v. Dunn27 and in

United States v. Amparo28 that possession of an unregistered

short-barreled shotgun is a “crime of violence” even if it was

never used and that the statute does not require violent use.

Though we construed different penalty enhancements in those

cases, the ratio decidendi applies and allows for no distinction. In United States v. Serna, we held that possession of a

semiautomatic weapon categorized by statute as an illegal

“assault weapon” was not a crime of violence, but took pains

to distinguish sawed-off shotguns and silencers because “they

have few, if any, legitimate uses.”

29 Therefore, Dunn and

Amparo are consistent with Serna. 

2. The Drug Convictions

Crampton’s other three prior convictions are for drug

crimes. He argues, correctly, that even though the statutory

2518 U.S.C. § 924(e)(2)(B). 

26Taylor v. United States, 495 U.S. 575 (1990); see also Shepard v.

United States, 544 U.S. 13 (2005). 

27United States v. Dunn, 946 F.2d 615, 621 (9th Cir. 1991). 

28United States v. Amparo, 68 F.3d 1222, 1225-26 (9th Cir. 1995). 

29United States v. Serna, 435 F.3d 1046, 1048-49 (9th Cir. 2006). 

2238 UNITED STATES v. CRAMPTON
maximum sentences for his convictions meet the ten year

standard for seriousness under the Armed Career Criminal

Act, the Oregon sentencing guidelines would make the maximum sentences lower than ten years. He argues further that

the state sentencing guidelines have the force of law over the

state statutory maximums, so his predicate offenses would not

have the necessary ten year maximums for application of the

federal sentencing enhancement.30

Crampton’s argument is based on the Oregon Supreme

Court decision in State v. Dilts.

31 There the Oregon Supreme

Court upheld the Oregon sentencing guidelines against a

Blakely challenge by determining that the trial court cannot

apply enhancements above the guidelines, but within the statutory maximums, without a jury determination.32

[4] We are bound to reject Crampton’s argument by our

decision in United States v. Parry.

33 There, as in the case at

bar, we confronted the question of whether Oregon drug

offenses with statutory maximums greater than ten years but

sentencing guidelines limiting the sentence to less than ten

years were sufficient predicates for operation of the federal

Armed Career Criminal Act. We held that they are.34 We

applied United States v. Murillo, which construed Washington

law, and held that “the maximum sentence is the statutory

30The Armed Career Criminal Act defines “serious drug offense,” in

pertinent part, as “an offense under State law, involving manufacturing,

distributing, or possessing with the intent to manufacture or distribute, a

controlled substance . . . for which a maximum term of imprisonment of

ten years or more is prescribed by law.” 18 U.S.C. § 924(e)(2)(A)(ii)

(emphasis added). 

31State v. Dilts, 103 P.3d 95 (Or. 2004). 

32Id. at 100. 

33United States v. Parry, 479 F.3d 722 (9th Cir. 2007). The Parry decision came down after the briefs in this case were filed. Defense counsel

properly and candidly advised us of the case in a Fed. R. App. P. 28(j) letter. 

34Parry, 479 F.3d at 726. 

UNITED STATES v. CRAMPTON 2239
maximum sentence for the offense, not the maximum sentence available in the particular case under the sentencing guidelines.”35 Therefore, Crampton’s drug convictions count as

predicate offenses for the Armed Career Criminal Act. 

3. Almendarez-Torres

Crampton argues that Almendarez-Torres should be limited

in order to reconcile it with Apprendi and Blakely, so that the

predicate crimes for application of the Armed Career Criminal

Act require indictment and proof beyond a reasonable doubt

to a jury. In this case the predicate crimes were charged in the

indictment and Crampton pleaded guilty to the indictment, so

the issue does not properly arise. If it did, it would be foreclosed by our holding in United States v. Brown that a jury

did not need to “decide whether a prior conviction should be

classified as a ‘crime of violence’ for the purpose of determining career-offender status” under the federal sentencing guidelines.36 Thus, the Almandarez-Torres exception applies. 

AFFIRMED. 

35Id. (quoting United States v. Murillo, 422 F.3d 1152, 1154 (9th Cir.

2005). 

36United States v. Brown, 417 F.3d 1077, 1079 (9th Cir. 2005) (per

curium). 

2240 UNITED STATES v. CRAMPTON