*

At the parties’ request, the case is unanimously ordered submitted without

oral argument pursuant to Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G).

FILED

United States Court of Appeals

Tenth Circuit

May 1, 2008

Elisabeth A. Shumaker

Clerk of Court PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

EVAN A. SAAVEDRA,

Defendant-Appellant.

No. 07-2192

Appeal from the United States District Court

for the District of New Mexico

(D.C. No. CR-07-382-JC)

Submitted on the briefs:*

Charles E. Knoblauch, Albuquerque, New Mexico, for the Defendant-Appellant.

Laura Fashing, Assistant United States Attorney, (Larry Gomez, United States

Attorney, with her on the brief) Office of the United States Attorney,

Albuquerque, New Mexico, for the Plaintiff-Appellee.

Before LUCERO, TYMKOVICH, and HOLMES, Circuit Judges.

LUCERO, Circuit Judge.
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Evan A. Saavedra pleaded guilty to one count of being an addict or

unlawful user of a controlled substance in possession of a firearm and

ammunition, in violation of 18 U.S.C. § 922(g)(3). Saavedra received a sentence

of 21 months’ imprisonment, which he now appeals. We conclude that the district

court committed procedural error in calculating Saavedra’s sentencing range, and

therefore reverse and remand for resentencing.

I

On February 5, 2007, Albuquerque police officers pursued and stopped a

vehicle after the driver, Saavedra, failed to observe a stop sign. A dispatcher

advised the officers that the vehicle’s occupants might have been involved in a

purse snatching, and the officers placed Saavedra and a passenger under arrest. 

Saavedra then volunteered to the officers that he had a shotgun inside the vehicle. 

A search revealed an unregistered, sawed-off 12-gauge shotgun with a barrel

length of 13.25 inches and total length of 21 inches. Officers also found seven

rounds of shotgun ammunition. Saavedra’s girlfriend, the owner of the vehicle,

later told police that he had borrowed the car from her to obtain the shotgun from

a friend and deliver it to someone else. She also told police that Saavedra was a

habitual heroin user. Saavedra confirmed both statements, adding that although

he knew the weapon was “short,” he thought that the barrel was 18 inches long.
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Following his indictment, Saavedra and the government entered into a plea

agreement. In return for the government dropping an unregistered-firearms count,

Saavedra pleaded guilty to being a drug user in unlawful and knowing possession

of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(3). In the

agreement, he admitted the facts essential to support his guilty plea, including his

possession of the shotgun, but did not make any admissions regarding his

knowledge of the length of the shotgun barrel. The government made no

promises regarding Saavedra’s sentence other than to stipulate that he had

accepted responsibility for his crime.

In arriving at a recommended sentencing range, Saavedra’s Presentence

Report (“PSR”) applied § 2K2.1(a)(5) of the United States Sentencing Guidelines

(“Guidelines”), which provides a base offense level of 18 for possession of

certain types of weapons. Among these weapons are shotguns with barrels shorter

than 18 inches. See 26 U.S.C. § 5845(a)(1). Allowing a three-level reduction for

acceptance of responsibility under U.S.S.G. § 3E1.1, the PSR calculated

Saavedra’s total offense level as 15. The PSR then arrived at a criminal history

category of II, based in part on a prior misdemeanor conviction under an

Albuquerque municipal ordinance prohibiting negligent use of a firearm. The

PSR recommend a Guidelines sentencing range of 21-27 months’ imprisonment.

Saavedra filed objections to the PSR. Relevant to this appeal, he

challenged the application of § 2K2.1(a)(5), arguing that the guideline did not
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apply because he did not admit knowing that the weapon had a 13.25-inch barrel. 

He also contended that his conviction for negligent use of a firearm should not

count toward his criminal history category because the city ordinance under

which he was convicted was without a parallel state law, and because he was

convicted without the benefit of counsel. The district court denied each of

Saavedra’s objections and sentenced him to 21 months’ imprisonment. Saavedra

now appeals his sentence on these same three grounds.

II

Our appellate review of a defendant’s sentence “includes both a procedural

component, encompassing the method by which a sentence was calculated, as well

as a substantive component, which relates to the length of the resulting sentence.” 

United States v. Smart, 518 F.3d 800, 803 (10th Cir. 2008). Saavedra challenges

only the procedural reasonableness of his sentence, which requires, among other

things, a properly calculated Guidelines range. Gall v. United States, 128 S. Ct.

586, 597 (2007). We review the district court’s legal interpretation of the

Guidelines de novo and its factual conclusions for clear error. See United States

v. Todd, 515 F.3d 1128, 1135 (10th Cir. 2008).

A

Saavedra first contends that we must read the guideline, § 2K2.1(a)(5), to

contain a scienter requirement. Specifically, he asserts that the government must

prove that he knew the shotgun barrel was shorter than 18 inches, the length
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required for § 2K2.1(a)(5) to apply. Although Saavedra does not dispute that the

shotgun he possessed had a 13.25-inch barrel, he notes that he never admitted

knowing that fact prior to his conviction.

To prove a violation of 18 U.S.C. § 922, the government generally must

show that a defendant knew that a weapon had special characteristics that

rendered the possession of that weapon a crime. See United States v. Serrano,

406 F.3d 1208, 1212 (10th Cir. 2005). Courts impose this scienter requirement

because we follow a common-law presumption against penalizing defendants who

have “knowledge only of traditionally lawful conduct.” Staples v. United States,

511 U.S. 600, 617 (1994). In contrast, where a statutory sentencing provision

rather than an element of the conviction is at issue, we have declined to impose a

scienter requirement if the text does not expressly include one. See United States

v. Nava-Sotelo, 354 F.3d 1202, 1206 (10th Cir. 2003).

This precedent applies to the advisory Guidelines as well. The text of

§ 2K2.1(a)(5) does not contain a scienter requirement, and we will not presume

such a requirement. Because Guidelines may “compound[] the punishment for the

offense, but fall[] far short of criminalizing apparently innocent conduct,” the

common-law principles of Staples and its progeny do not apply. Nava-Sotelo,

354 F.3d at 1207 (quotations omitted). Accordingly, it is enough for the

government to show that the weapon’s characteristics fall within the guideline. 

See, e.g., United States v. Gonzalez-Lopez, 335 F.3d 793, 798 (8th Cir. 2003)
1

 The Guidelines in effect at the time of Saavedra’s sentencing provided

that a local ordinance violation would also count toward his criminal history if: 

“(A) the sentence was a term of probation of at least one year or a term of

imprisonment of at least thirty days, or (B) the prior offense was similar to an

instant offense.” U.S.S.G. § 4A1.2(c)(1) (2006). The government has not argued,

either before this court or before the district court, that either of these exceptions

apply to Saavedra’s Albuquerque ordinance violation, and we express no opinion

on the matter. See United States v. Edgerton, 438 F.3d 1043, 1051 (10th Cir.

(continued...)

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(“The Sentencing Commission understands the difference between actus reas [sic]

and mens rea and specifically includes a scienter element within a guideline when

it intends mens rea to be considered.”); United States v. Fry, 51 F.3d 543, 545-46

(5th Cir. 1995) (finding no scienter requirement in § 2K2.1(a)(3)); United States

v. Chatman, 994 F.2d 1510, 1517 (10th Cir. 1993) (declining to read a scienter

requirement into a guideline related to possessing a firearm during the

commission of an offense); see also United States v. Brown, 514 F.3d 256, 269

(2d Cir. 2008); United States v. Thornton, 306 F.3d 1355, 1359 (3d Cir. 2002). 

The district court therefore properly applied the guideline.

B

Saavedra also argues that the court improperly calculated his criminal

history category, and the government concedes that he may be correct. Saavedra

was convicted of Negligent Use of Weapons under an Albuquerque municipal

ordinance, Albuquerque, N.M., Code § 12-2-9. A local ordinance violation may

be included in a defendant’s criminal history calculation if it would also

constitute a violation of state law.1

 See U.S.S.G. § 4A1.2(c); see also United
1

(...continued)

2006). In any event, these exceptions will not apply on remand because effective

November 1, 2007, local ordinance violations that are not also violations of state

criminal law are “never counted” toward a defendant’s criminal history. 

§ 4A1.2(c)(2); see also § 1B1.11 (directing courts to apply the version of the

Guidelines in effect at the time of sentencing unless doing so would invoke ex

post facto concerns).

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States v. Hooks, 65 F.3d 850, 855-56 (10h Cir. 1995). Although the ordinance at

issue and its state law analogue each forbid discharging or handling weapons

under certain circumstances, they overlap only with regard to “endangering the

safety of another by handling or using a firearm or other deadly weapon in a

negligent manner” and perhaps carrying a firearm while under the influence of an

intoxicant. Compare Albuquerque, N.M., Code § 12-2-9, with N.M. Stat. § 30-7-

4. Thus, if Saavedra’s ordinance violation resulted, for example, from

“discharging a weapon within the city limits without justification,” he would not

have committed a crime under state law, and it would be improper to credit this

violation toward his criminal history calculation. See Albuquerque, N.M., Code §

12-2-9(A)(1).

The PSR contains no evidence detailing which section of the local

ordinance Saavedra violated, nor does it reveal the nature of the conduct which

earned him a conviction. Despite this, the district court conducted no inquiry into
2

 Saavedra also urges that it was error to count this conviction toward his

criminal history because he was sentenced to one day’s imprisonment in the

metropolitan court proceeding, yet allegedly not afforded counsel. Because the

district court must hold another sentencing hearing and may decline to count the

violation for other reasons, we will not rule on this issue at the present time.

- 8 -

the matter. The court therefore committed procedural error in calculating

Saavedra’s criminal history category, and we remand for resentencing.2

III

For these reasons, we REVERSE Saavedra’s sentence and REMAND to

the district court with instruction to VACATE the sentence and resentence

Saavedra.