1 Judge DeMoss concurs in the judgment only. IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 01-40836

_____________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

RUBEN SERNA, JR.,

Defendant - Appellant.

_________________________________________________________________

Appeal from the United States District Court

for the Southern District of Texas, McAllen

October 11, 2002

Before JOLLY, SMITH, and DEMOSS 1 , Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

This appeal pres ents the question whether the crime of

poss e ssion of a “prohibited weapon”, specifically a sawed-off

shotgun, under Texas law constitutes a crime of violence under the

federal sentencing guidelines. Ruben Serna pleaded guilty to

possessing a firearm as a convicted felon in violation of 18 U.S.C.

§ 922(g)(1). At sentencing, the district court found that Serna’s

previous state c ourt felony conviction for possession of a

prohibited weapon was a crime of violence and enhanced his sentence2 The record on appeal in this case did not contain a copy of

the state court indictment for possession of a prohibited weapon.

The panel required the parties to secure and furnish to the court

a copy of that relevant indictment. We urge the prosecution in the

future to include in the record before the trial court and this

court, a copy of the indictment containing each count upon which a

claim for punishment enhancement is based.

3 This is different from holding that all instances of

possess ion of sawed-off shotguns are for violent purposes only;

instead, we refer only to those instances of possession made a

crime under Texas law. For example, the Texas statute does not

make criminal the possession of these weapons by collectors,

members of the military or per sons whose weapons are registered

under the National Firearms Act. T EX

. P ENAL C O DE § 46.05(b)-(d).

These instances of possession are not even crimes, much less crimes

of violence.

4 Serna also appeals his conviction notwithstanding his

unconditional plea of guilty. He argues that in enacting §

922(g)(1), Congress exceeded the scope of its power under the

Commerce Clause, U.S. C ONST

., Art. I, § 8, cl. 3. Serna concedes

that this argument is foreclosed by our precedent. S ee United

States v. Rawls

, 85 F.3d 240, 242-43 (5 th Cir. 1996); United States

v. Kuban

, 94 F.3d 971, 973 (5 t h Cir. 1996); United States v.

Gresham

, 118 F.3d 258, 264 (5 th Cir. 1997) (“The constitutionality

2 on that basis. S ee U.S.S.G. § 4B1.2. The indictment underlying

t his previous state court conviction identified the prohibited

weapon as a “shotgun with a barrel length of less than 18 inches.” 2

This type of weapon is commonly known as a sawed-off shotgun. S ee

,

United States v. Reyna

, 130 F.3d 104 (5 th Cir. 1997); United States

v. Ridlehuber

, 11 F.3d 516 (5 t h Cir. 1997). It is reasonable to

conclude that a sawed-off shotgun, when possessed unlawfully, is

possessed for violent purposes only. 3 Thus, the unlawful

possession of a sawed-off shotgun creates a serious potential risk

of physical injury and therefore constitutes a crime of v iolence

under the guidelines. Accordingly, we affirm Serna’s sentence. 4of § 922(g)(1) is not open to question.”). He raises the argument

in this appeal for the sole purpose of preserving it for further

review. Accordingly, we also affirm his conviction.

3 I

Two months after Ruben Serna’s release from prison, the police

executed a search of his home in Texas. During the search, the

police discovered a loaded Star, model Firestar, .40 caliber chrome

plated pistol. Serna admitted ownership of the pistol. He was

indicted and pleaded guilty, as earlier noted, for possessing this

pistol as a felon.

During his plea colloquy, Serna admit ted that he had two

previous state felony convictions: (1) aggravated assault and (2)

possession of a pr ohibited weapon. At sentencing, the district

court classified these two convictions as crimes of violence under

the sentencing guidelines. Based on this finding, the district

court sentenced Serna to fifty-seven months in prison, a three-year

term of supervised release, and a $100 special assessment. Serna

now appeals his sentence and conviction. The only issue of merit

is whether the district court erred in enhancing his sentence by

determining that his conviction for posses

sing a “prohibited weapon” was a crime of violence under the

federal sentencing guidelines.

II

We review the district court’s interpretation and application

of the sentencing guidelines de novo. S ee United States v.4

Deavours

, 219 F.3d 400, 402 (5 th Cir. 2000). Upon conviction for

unlawful possession of a firearm as a felon, the sentencing

guidelines impose a base offense level of 24 “if the defendant

committed any part of the instant offense subsequent to sustaining

at least two felony convictions of either a crime of violence or a

controlled substance offense.” U.S.S.G. § 2K2.1(a)(2).

The guidelines define “crime of violence” as:

[A]ny offense under federal or state law, punishable by

imprisonment for a term exceeding one year, that--

(1) has as an element the use, attempted use, or

threatened use of physical force against the person

of another, or

(2) is burglary of a dwelling, arson, or extortion,

involves use of explosives, or otherwise involves

co nduct that presents a serious potential risk of

physical injury to another.

U.S.S.G. § 4B1.2(a). The application note to this provision sets

forth a further definitional gloss on the term “crime of violence.”

Application Note 1 provides:

Crime of violence includes murder, manslaughter,

kidnapping, aggravated assault, forcible sex offenses,

robbery, arson, extortion, extortionate extension of

credit, and burglary of a dwelling. Other offenses are

included as crimes of violence if (A) that offense has as

an element the use, attempted use, or threatened use of

physical force against the person of another, or (B) the

conduct set forth (i.e., expressly charged) in the count

of which the defendant was convicted involved use of

explosives (including any explosive material or

destructive dev ice) or, by its nature, presented a

serious potential risk of physical injury to another.

Id. (internal quotation marks omitted).5 The Texas statute und er which Serna was convicted provides,

in full:

(a) A person commit s an offense if he intentionally or

knowingly possesses, manufactures, transports, repairs,

or sells:

(1) an explosive weapon;

(2) a machine gun;

(3) a short-barrel firearm;

(4) a firearm silencer;

(5) a switchblade knife;

(6) knuckles;

(7) armor-piercing ammunition;

(8) a chemical dispensing device; or

(9) a zip gun.

( b) It is a defense to prosecution under this s ection

that the actor’s conduct w as incidental to the

performance of official duty by the armed forces or

national guard, a governmental law enforcement agency, or

a correctional facility.

( c) It is a defense to prosecution under this s ection

that the actor’s possession was pursuant to registration

pursuant to the National Firearms Act, as amended.

(d) It is an affirmative defense to prosecution under

this section that the actor's conduct:

(1) was incidental to dealing with a switchblade

knife, springblade knife, or short-barrel firearm

solely as an antique or curio; or

(2) was incidental to dealing with arm or-piercing

ammunition solely for the purpose of mak ing the

ammunition available to an organization, agency, or

institution listed in Subsection (b).

5 With this commentary in mind, we now turn to consider the

crime at issue –- possession of a prohibited weapon, specifically

a sawed-off shotgun. To obtain a felony conviction for this crime,

the state had to prove that Serna “knowingly” possessed a sawed-off

shotgun. 5 T E X

. P ENAL C ODE § 46.05(a)(3). For this crime to(e) An offense under this section is a felony of the

third degree unless it is committed under Subsection

(a)(5) or (a)(6), in which event, it is a Class A

misdemeanor.

T EX . P ENAL C ODE § 46.05 (footnote omitted).

6 Clearly, p ossession of a prohibited weapon does not fall

within the other definitions of “crime of violence” contained in §§

4B1.2.(a)(1)&(2): The elements of the crime do not include “the

use, attempted us e, or threatened use of physical force,” or

involve “burglary of a dwelling, arson, extortion, or the use of

explosives.” Id.

6 constitute a crime of violence under federal law, it must fall

within the “otherwise” clause of § 4B1.2(a)(2) and Application Note

1; 6 that is, unlawful possession of a prohibited weapon must

“present[] a serious potential risk of physical injury to another.”

Id. In making this “risk” assessment, we take a categorical

approach. Such an approach examines the conduct as alleged in the

indictment and decides whether that conduct, by its nature, poses

a serious potential risk of physical injury. S ee United States v.

Charles , __ F.3d __, 2002 WL 1764147 (5 t h Cir. 2002)(en banc) ;

United States v. Fitzhugh , 954 F.2d 253, 254 (5 t h Cir. 1992) ;

U.S.S.G. § 4B1.2, a pp. n. 1. Under this approach, we do not

consider the underlying conduct of the crime charged unless it is

specifically referenced in the indictment. S ee United States v.

Ruiz

, 180 F.3d 675, 676 (5 th Cir. 1999) (holding that an escape from

prison was a crime of violence even though the defendant “simply

walked away

. . . no physical barriers prevented the escape and no

guards were armed”).7 We note that this count expressly identifies the type of

weapon which Serna was charged with possessing; and we confine this

opinion to the circumstances of possession of a “short barreled

firearm” under the Texas statute.

7 Serna’s state court indictment reads as follows:

...RUBEN SERNA, JR. hereinafter styled

Defendant, on or about the 21 s t day of July

A.D. 1992, and before the presentment of this

indictment, in Hidalgo County, Texas, did then

and there intentionally and knowingly possess

a prohibited weapon, to wit: a shotgun with a

barrel length of less than 18 inches... 7

Thus, the question we face under our categorical approach is

wh ether the specific conduct alleged in the indictment by its

nature poses a serious potential risk of physical injury. In

answering this question, we are interpreting and applying federal

law, i.e., the sentencing guidelines, to a federal conviction. In

short, we are resolving a question of federal

-- not state

-- law.

The question of federal law presented is whether, under the

sentencing guidelines, “intentionally and knowingly possess[ing]

... a shotgun with a barrel length of less than 18 inches” in

violation of Texas law constitutes conduct which by its nature

presents a serious potential risk of physical injury to another.

At the outset we note that “possession”, though often passive,

constitutes “conduct”. Thus, the next step to consider is the

nature of that conduct. In this quest, we must consider the

character of the prohibited weapon: a sawed-off shotgun.

In enacting gun control legislation Co ngress expressed the

view that a short-barr eled firearm, or sawed-off shotgun, when8

unlawfully possessed, is prim a rily used for violent purposes.

Under the National Firearms Act (“NFA”), the possessor of a sawedoff shotgun must register the weapon with the federal government.

26 U.S.C. §§ 5841(a), 5845(a)&(e). The failure to register is a

violation of criminal law. 26 U.S.C. §§ 5861(d), 5871. In U nited

States v. Jennings

, 195 F.3d 795 (5 th Cir. 1999), cert. denied

, 530

U.S. 1245 (2000), we held that “the primary reason that

unregistered possession of [a weapon listed in the NFA, i.e., a

sawed-off shotgun] is a crime is the v irtual inevitability that

such possession will result in violence.” I d. at 799. The

legislative history of the NFA reinforces the view we articulated

in Jennings

. Congress passed the NFA in response to gangster-style

violence after observing that “there is no reason why anyone except

a law officer should have a machi ne gun or a sawed-off shotgun.”

See H.Rep. No. 1780, at 1 (1934); accord United States v. Fortes

,

141 F.3d 1, 6 (1st Cir. 1998)(explaining that under the NFA,

"[o]nly those firearms must be registered that Congress has found

to be inherently dangerous and generally lacking usefulness, except

for violent and criminal purposes”).

Furthermore, the Fourth, Seventh, Eighth, and Ninth Circuits

each have found that, because it is primarily used for violent

purposes, pos session of a sawed-off shotgun presents a serious

potential risk of physical injury and therefore constitutes a

“crime of violence.” See United States v. Johnson , 246 F.3d 330,

334-35 (4 th Cir.), cert. denied

,

__ U.S.

__, 122 S.Ct. 191 (2001);9

United States v. Brazeau

, 237 F.3d 842, 845 (7 th Cir. 2001); United

States v. Allegree

, 175 F.3d 648, 651 (8 th Cir. 1999) (finding that

sawed-off shotguns are “inherently dangerous and lack usefulness

except for violent and criminal purposes"); United States v. Hayes

,

7 F.3d 144, 145 (9 th Ci r. 1993) (finding that “sawed-off shotguns

are inherently da ngerous, lack usefulness except for violent and

criminal purpos es and their possession involves the substantial

risk of improper physical force”)

. In addition, the First Circuit

has held that possession of a sawed-off shotgun is a “violent

felony” for the pu rpose of determining whether a maximum prison

term should be enhanced under the Armed Career Criminal Act (ACCA),

18 U.S.C. § 924(e)(1). S ee United States v. Fortes

, 141 F.3d 1, 6-

7 (1 st Cir. 1998). The ACCA employs identical language to define

“violent felony” as the sentencing guidelines use to define “crime

of violence.” C ompare 18 U.S.C. § 924(e)(1) with U.S.S.G. §

4B1.2(a). F ortes thus provides persuasive authority that the First

Circuit would consider possession of a sawed-off shotgun a crime of

violence. In the light of the decisions of our sister circuits and

the findings of Congress, we are easily persuaded that a sawed-off

shotgun is a weapon for which the primary purpose of unlawful

possession is violence.

We thus conclude our analysis under the sentencing guidelines:

We have noted that possession is conduct; and we have determined

that use for violence is the primary purpose for a sawed-off

shotgun. It follows that violence is more likely than not to occur10

from unlawful possession of a sawed-off shotgun. We therefore

conclude that the unlawful possession a sawed-off shotgun under the

Texas statute constitutes conduct that, by its nature, poses a

serious potential risk of physical injury to another and is

therefore a crime of violence under U.S.S.G. § 4B1.2(a). Serna’s

sentence is therefore proper and the judgment of the district court

is

AFFIRMED.