United States Court of Appeals

For the First Circuit

No. 00-1666

UNITED STATES OF AMERICA,

Appellee,

v.

TAD MICHAUD,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

Before

 Boudin, Circuit Judge,

Bownes, Senior Circuit Judge,

and Lynch, Circuit Judge.

F. Mark Terison, Senior Litigation Counsel, and Jay P.

McCloskey, United States Attorney, on brief, for appellee.

James S. Hewes on brief for appellant.

March 22, 2001

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BOWNES, Senior Circuit Judge. Defendant-appellant Tad

Michaud pleaded guilty to five criminal counts arising from his

robbery of a convenience store. Because he used a shortbarreled shotgun during the crime, he was sentenced to the

statutory minimum of ten years’ imprisonment. 18 U.S.C. §§

921(a)(6), 924(c)(1). Michaud appeals from his sentence on the

ground that the weapon did not meet the measurement requirements

contained in section 921(a)(6). We affirm.

I. BACKGROUND

On the evening of July 21, 1999, Michaud entered an

Exxon convenience store in Westbrook, Maine, carrying a sawedoff shotgun. He pointed the shotgun at the store’s attendant

and the attendant’s son, ordering them into a back room where a

safe was located. The attendant and his son resisted Michaud

and took the weapon away from him. They used the shotgun to

hold Michaud until the police arrived and arrested him.

On August 19, 1999, a federal grand jury returned a

five-count indictment against Michaud. He was charged with

obstructing commerce by attempting robbery in violation of 18

U.S.C. § 1951(a) (Count One); using and carrying a firearm

during a crime of violence in violation of 18 U.S.C. § 924(c)

(Count Two); possessing shotguns and a rifle as a convicted

felon in violation of 18 U.S.C. § 922(g) (Counts Three and
1The weapons possession charges arose from Michaud’s use of

the sawed-off shotgun during the robbery as well as from

additional weapons discovered in his home in a subsequent

search.

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Four); and possessing an unregistered firearm in violation of 26

U.S.C. § 5861(d) (Count Five).1 Michaud pleaded guilty to all

counts of the indictment. 

At the sentencing hearing, Michaud contended that the

weapon he used during the robbery did not meet the statutory

requirements for a ten-year minimum sentence for using a shortbarreled shotgun, 18 U.S.C. § 921(a)(6). He also sought a

downward departure for “aberrant behavior.” See 18 U.S.C. §

3553(b); U.S.S.G. § 5K2.0 (permitting departure for certain

aggravating or mitigating circumstances that should result in

different sentence); United States v. Grandmaison, 77 F.3d 555,

560-61 (1st Cir. 1996) (applying U.S.S.G. § 5K2.0 to defendant’s

aberrant behavior). The district court rejected these

contentions and sentenced Michaud to 177 months' imprisonment:

57 months on Counts One, Three, Four and Five, to be served

concurrently, plus a consecutive sentence of 120 months on Count

Two. This appeal followed.

II. DISCUSSION

First, Michaud challenges the ten-year consecutive

sentence imposed on Count Two, renewing his argument that the
2Congress considered criminals’ use of short-barreled

shotguns worthy of enhanced punishment because it is

particularly dangerous: shot scatters more widely from a short

barrel, thus killing indiscriminately, and a shortened shotgun

is easier to conceal and wield. United States v. Hall, 972 F.2d

67, 70 (4th Cir. 1992).

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weapon he used during the robbery did not meet the statutory

definition of a short-barreled shotgun. 18 U.S.C. § 921(a)(6).

We review this question of statutory interpretation de novo.

United States v. Rostoff, 164 F.3d 63, 66 (1st Cir. 1999).

18 U.S.C. § 924(c)(1)(B)(i) mandates a ten-year

sentence for the use or carrying of a short-barreled shotgun

during a crime of violence.2 The statute defines a “shotgun” as:

a weapon designed or redesigned, made or

remade, and intended to be fired from the

shoulder and designed or redesigned and made

or remade to use the energy of an explosive

to force through a smooth bore either a

number of ball shot or a single projectile

for each single pull of the trigger.

Id. § 921(a)(5). As used in section 924(c)(1)(B)(i), the

statute defines a “short-barreled shotgun” as:

a shotgun having one or more barrels less

than eighteen inches in length and any

weapon made from a shotgun (whether by

alteration, modification or otherwise) if

such a weapon as modified has an overall

length of less than twenty-six inches. 

Id. § 921(a)(6). 

It is uncontested that the weapon Michaud used during

the robbery was a sawed-off shotgun with a barrel measuring
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twelve and one-quarter inches long and an overall length of

twenty-seven and one-quarter inches. When recovered by the

police, it was fully operational and test-fired normally.

At the sentencing hearing, after argument from the

prosecution and Michaud, the district court ruled:

I’m satisfied that Subsection (6) of

Subsection (a) of Section 921 gives two

alternative definitions, and that the weapon

here qualifies under the first alternative;

namely, it is a shotgun, having one or more

barrels less than 18 inches in length. And

that that alone satisfies the definition of

the statute. The fact that it obtained its

shorter length by modification does not

prevent it from qualifying under that part

of the definition, and I’m satisfied that

the [Fourth] Circuit decision in Hall says

nothing different, that in fact it supports

the conclusion I’m reaching.

Michaud contends that the two measurement requirements

contained at section 921(a)(6) should be read conjunctively due

to the use of the word “and” instead of “or.” Under this

theory, a weapon must have a barrel length of less than eighteen

inches and an overall length of less than twenty-six inches to

be a short-barreled shotgun. Because Michaud's sawed-off

shotgun satisfied only the barrel length requirement, he argues,

section 924(c)(1)(B)(i) cannot apply.

We disagree, and conclude that the district court’s

reading of the statute was correct. The plain language of 18

U.S.C. § 921(a)(6) includes within its definition of a
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short-barreled shotgun two categories of weapon: a shotgun with

a barrel of less than eighteen inches in length, and any weapon

made from a shotgun that has an overall length of less than

twenty-six inches. United States v. Hall, 972 F.2d 67, 70 (4th

Cir. 1992). Because Michaud’s shotgun satisfied the first

requirement, it is covered by the statute; it makes no

difference that it did not additionally fall into the second

category of weapons, i.e., those having an overall length of

less than twenty-six inches. See id.; United States v. Bandy,

239 F.3d 802, 806 (6th Cir. 2001) ("A barrel length of less than

18 inches brings the shotgun within the proscription of [section

921(a)(6)], regardless of the total length of the weapon.") 

As the Fourth Circuit pointed out, the construction of

section 921(a)(6) supports this conclusion.

[If] Congress intended to punish the use of

only one, narrow subset of modified

shotguns--those with a barrel length of less

than eighteen inches and an overall length

of less than twenty-six inches--Congress

would have had absolutely no reason to

insert into the provision the second subject

category. Congress simply could have

declared that: "short barreled shotgun means

a shotgun having one or more barrels less

than eighteen inches in length and an

overall length of less than twenty-six

inches." Because Congress chose not to

structure the statute in this way, it is

evident on the face of the statute that it

is intended to proscribe the use of both

shotguns with a barrel length of less than

eighteen inches and other weapons made from
3The government also contends that the legislative history

of section 921(a)(6) supports the disjunctive reading of the

language at issue. Because we conclude that the plain language

of the provision makes clear that a shotgun need only satisfy

one of the length requirements, we need not consider the

legislative history. See Telematics Int'l, Inc. v. NEMLC

Leasing Corp., 967 F.2d 703, 706 (1st Cir. 1992).

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shotguns with an overall length of less than

twenty-six inches. 

Hall, 972 F.2d at 70.

This interpretation is further buttressed by the

definition of a shotgun contained at section 921(a)(5). It

expressly includes weapons “designed or redesigned and made or

remade.” Hence, section 921(a)(6)’s definition of a

short-barreled shotgun as “a shotgun having one or more barrels

of less than eighteen inches in length” includes sawed-off

shotguns as well as unmodified shotguns.3

Additionally, Michaud contends that the district court

erred in declining to award a downward departure on the ground

that his criminal conduct was “aberrant behavior.” The court of

appeals has no jurisdiction, however, to review a district

court’s decision not to depart downward unless the district

court misunderstood its authority to do so. United States v.

Orlando-Figueroa, 229 F.3d 33, 49 (1st Cir. 2000). Michaud does

not contend, and the record does not reflect, any such

misunderstanding on the part of the district court.
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Accordingly, we may not review the district court’s rejection of

Michaud’s aberrant behavior argument.

Affirmed.