FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 04-50128 Plaintiff-Appellee,

D.C. No.

v.  CR-03-00080-MMM

DANIEL LUIS DELANEY,

OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the Central District of California

Margaret M. Morrow, District Judge, Presiding

Submitted October 17, 2005*

Pasadena, California

Filed November 7, 2005

Before: Procter Hug, Jr., Harry Pregerson, and

Richard R. Clifton, Circuit Judges.

Opinion by Judge Pregerson

*This panel unanimously finds this case suitable for decision without

oral argument. See Fed. R. App. P. 34(a)(2). 

15201
COUNSEL

Benjamin N. Gluck, Bird, Marella, Boxer, Wolpert, Nessim,

Drooks & Lincenberg, Los Angeles, California, for the

defendant-appellant.

Matthew D. Umhofer, Assistant United States Attorney, Los

Angeles, California, for the plaintiff-appellee. 

OPINION

PREGERSON, Circuit Judge: 

On March 31, 2003, Defendant Daniel Luis Delaney

robbed a branch of the Wells Fargo Bank in Anaheim Hills,

California. On June 19, 2003, Delaney was convicted of bank

robbery in violation of 18 U.S.C. § 2113(a). The Probation

Office’s Presentence Report recommended that Delaney be

sentenced as a “career offender” under U.S.S.G. § 4B1.1(a)1

because (1) he was at least eighteen years old at the time he

committed the robbery; (2) the robbery conviction constituted

a crime of violence; and (3) he had two prior convictions for

1United States Sentencing Guidelines classify a defendant as a “career

offender” if: 

(1) the defendant was at least eighteen years old at the time the

defendant committed the instant offense of conviction; (2) the

instant offense of conviction is a felony that is either a crime of

violence or a controlled substance offense; and (3) the defendant

has at least two prior felony convictions of either a crime of violence or a controlled substance offense. 

USSG § 4B1.1(a). 

UNITED STATES v. DELANEY 15203
crimes of violence. The district court adopted the Presentence

Report’s conclusion that Delaney was a career offender

because he had two prior felony convictions for crimes of violence, one for bank robbery in violation of 18 U.S.C.

§ 2113(a) and one for possession of a short-barreled shotgun

in violation of California Penal Code section 12020(a).

Delaney, however, contends that his conviction for possession

of a short-barreled shotgun is not a “crime of violence” for

purposes of § 4B1.1. 

We review de novo the district court’s interpretation of the

United States Sentencing Guidelines and its designation of

career offender status under U.S.S.G. § 4B1.1. See United

States v. Kelly, 422 F.3d 889, 891-92 (9th Cir. 2005). For the

following reasons, we affirm the district court’s determination

that Delaney is a career offender. 

[1] We use the “categorical approach” to determine

whether Delaney’s predicate conviction for possession of a

short-barreled shotgun is a crime of violence. See United

States v. Fish, 368 F.3d 1200, 1202 (9th Cir. 2004). Under

this approach, we need not look to the specific conduct that

formed the basis of the defendant’s convictions, but only to

the statutory definition of the crime. See Taylor v. United

States, 495 U.S. 575, 602 (1990). The California statute under

which Delaney was convicted criminalizes “possess[ion of]

. . . any short-barreled shotgun . . . .” Cal. Pen. Code

§ 12020(a)(1). 

[2] To constitute a crime of violence under the Guidelines,

Delaney’s offense must be one that “involves conduct that

presents a serious potential risk of physical injury to another.”

U.S.S.G. § 4B1.2(1)(2). We have recognized that possession

of an unregistered sawed-off shotgun is a crime of violence

for purposes of the career offender provisions of the Guidelines. See United States v. Hayes, 7 F.3d 144 (9th Cir. 1993).

In Hayes, we reasoned that “sawed-off shotguns are inherently dangerous, lack usefulness except for violent and crimi15204 UNITED STATES v. DELANEY
nal purposes and their possession involves the substantial risk

of improper physical force.” Id. at 145. This brings Delaney’s

offense within the purview of § 4B1.1. 

Delaney seeks to distinguish Hayes because the offense at

issue there involved an unregistered sawed-off shotgun. This

argument fails. Our decision in Hayes did not turn on whether

the gun was registered but rather on the dangerous nature of

the weapon.3 A sawed-off shotgun, registered or not, “presents a serious potential risk of physical injury to another.”

U.S.S.G. § 4B1.2(1)(2); see also United States v. Huffhines,

967 F.2d 314, 320-21 (9th Cir. 1992) (holding that the unlawful possession of a silencer presents such a risk and thus is a

crime of violence). 

Delaney also asserts that the district court erred in deeming

him a “career offender” because the enhancement is based, in

part, on two prior convictions that were not proved beyond a

reasonable doubt to a jury. We reject this argument because

the Supreme Court has made clear that the fact of a prior conviction need not be proved to a jury beyond a reasonable

doubt or admitted by the defendant to satisfy the Sixth

Amendment even when such a finding results in an increase

in the penalty beyond what would otherwise be the maximum

prescribed sentence. See United States v. Booker, 125 S. Ct.

738, 748-49 (2005). 

Finally, Delaney contends that the district court erred by

applying two additional sentence enhancements (robbery of a

financial institution pursuant to U.S.S.G. § 2B3.1(b)(1), and

commission of an offense while on escape status pursuant to

3The Guidelines specifically provide that the term “ ‘[c]rime of violence’ does not include the offense of unlawful possession of a firearm by

a felon.” USSG § 4B1.2 cmt. n.1. Our precedent is clear, however, that

this provision does not exempt possession of weapons that are “inherently

dangerous and lacking in lawful purposes” and therefore constitute a crime

of violence. See Hayes, 7 F.3d at 145; Huffhines, 967 F.2d 314, at 320. 

UNITED STATES v. DELANEY 15205
U.S.S.G. § 4A1.1(e)) based on extra-verdict findings not

proved to a jury beyond a reasonable doubt. This argument

also fails. The district court did not apply either sentence

enhancement. Rather, the district court applied the higher total

offense level warranted by Delaney’s career offender status,

see U.S.S.G. § 4B1.1(b) (“[I]f the offense level for a career

offender from the table in this subsection is greater than the

offense level otherwise applicable, the offense level from the

table in this subsection shall apply”) which was higher than

the combined sentence enhancements. 

[3] Because Delaney was sentenced under the thenmandatory Sentencing Guidelines, and it is not clear from the

record whether the sentence imposed would have been materially different had the district court known that the Guidelines

were advisory, we remand this case to the sentencing court to

answer that question. See United States v. MorenoHernandez, 419 F.3d 906, 916 (9th Cir. 2005).

REMANDED. 

15206 UNITED STATES v. DELANEY