United States Court of Appeals

Fifth Circuit



## FILED

May 30, 2003

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________________

No. 02-50403

__________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellant-Cross-Appellee,

versus

KENNETH DWAYNE GOLDING,

Defendant-Appellee-Cross-Appellant.

___________________________________________________

Appeals from the United States District Court

for the Western District of Texas

___________________________________________________

Before SMITH, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:

Plaintiff-Appellant-Cross-Appellee United States of America

(“government”) appeals from the district c ourt’s decision not to

classify Defendant-A ppellee-Cross-Appellant Kenneth D. Golding’s

prior conviction for the unlawful possession of a machine gun as a

conviction for a “crime of violence” under § 4B1.2(a) of the United

States Sentencing Guidelines (“Guidelines”). As we determine that

the unlawful possession of a machine gun is a “crime of violence”

under § 4B1.2(a) of the Guidelines, we vacate the sentence imposed

by the district court and remand for resentencing.

I.

FACTS AND PROCEEDINGS1 See U.S. S ENTENCING G UIDELINES M ANUAL § 2K2.1(a)(4)(A) (2002).

2 Golding was indicted on one count of being a felon in

possession of one or more firearms, viz.

, a Remington 20-gauge

shotgun and a Browning 20-gauge shotgun. The firearms indictment

followed Gold ing’s arrest by local police for driving while

intoxicated (“DWI”), at which time the two shotguns were discovered

in the cab of his pick-up truck. Golding pleaded guilty to the

firearms charge without the benefit of a plea agreement with the

government.

The probation officer submitted a presentence report (“PSR”)

reflecting that Golding had been convicted in 1992 for the unlawful

possession of a machine gun, in vio lation of 18 U.S.C. § 922(o).

The PSR included a recommendation that this prior offense be deemed

a “crime of violence,” as defined under § 4B1.2(a) of the

Guidelines. Accordingly, the PSR recommended that Golding be

assessed a base offense level of 20. 1

Golding asserted two objections to the PSR. First, he took

issue with the classification of his prior offense as a “crime of

violence.” Second, he complained of the district court’s refusal

to apply the “sporting exception” under § 2K2.1(B)(2), contending

that the two shotguns he poss essed at the time of his DWI arrest

were used solely for bird hunting. (Golding’s arrest occurred on

the evening of the opening day of Texas’s mourning dove season.)

In considering Golding’s objections, the district court noted2 Golding has also appealed, contesting the district court’s

refusal to apply the Guidelines’s “sporting exception,” which would

have lowered his base offense level from 14 to 6. S ee U.S.

S ENTENCING G UIDELINES M ANUAL § 2K2.1(b)(2). The “sporting exception” is

applicable only if a defendant’s base offense level is 14 or less.

Id. As we conclude that unlawful possession of a machine gun is a

“crime of violence,” his base offense level is 20, see U.S.

S ENTENCING G UIDELINES M ANUAL § 2K2.1(a)(4)(A), precluding the

applicability of the “sporting exception.” Golding’s appeal is

therefore dismissed as moot, pretermitting our consideration of the

district court’s ruling on the “sporting exception.”

3 that the jurisprudence on classifying the unlawful possession of a

machine gun as a “crime of violence” unde r the Guidelines is not

well developed. Given its perceived uncertainty in the case law

and its position that any doubt should be resolved in Golding’s

favor, the district court granted Golding’s objection to the PSR’s

classification of his prior conviction for the unlawful possession

of a machine gu n as a conviction for a “crime of violence.” In

contrast, the court denied Golding’s ob j ection concerning the

“sporting exception.” In consequence of these rulings, the court

re-evaluated Golding’s base offense level to be 14, and sentenced

him to five-months’ imprisonment, t o be followed by five-months’

home detention as a condition of a three-year term of supervised

release. The government timely filed a notice of appeal. 2

II.

ANALYSIS

A. Standard of Review

.

We review de novo a distric t court’s application of the3 United States v. Fitzh ugh , 984 F.2d 143, 146 (5th Cir.

1993).

4 U.S. S ENTENCING G UIDELINES M ANUAL § 2K2.1(a)(4)(A).

5 United States v. Charles

, 301 F.3d 309, 312 (5th Cir. 2002)

(en banc).

6 U.S. S ENTENCING G UIDELINES M ANUAL § 4B1.2(a) (emphasis added).

4 Guidelines. 3

B. Unlawful Possession of a Machine Gun is a “Crime of Violence”

under § 4B1.2(a) of the Guidelines

.

A defendant who is convicted of being a felon in possession of

a firearm should receive a base offense level of 2 0 “if [he]

committed any part of the instant offense subsequent to sustaining

one felony conviction of either a crime of violence or a controlled

substanc e offense.” 4 We have previously determined that, in

sentencing a defendant under this provision, a district court must

u se the definition of “crime of violence” provided in the

Guidelines and in its application notes. 5 Accordingly, a “crime of

violence” is defined for purposes of this case as:

[A]ny offense under federal or state law, p unishable 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 conduct that presents

a serious potential risk of physical injury to another

. 6

The application note states:

Crime of violence includes murder, manslaughter, kidnapping,

aggravated assault, forcible sex offenses, robbery, arson,

extortion, extortionate extension of credit, and burglary of7 U.S. S ENTENCING G UIDELIN ES M ANUAL § 4B1.2, cmt. n.1 (internal

quotation marks omitted) (emphasis added).

8 309 F.3d 859 (5th Cir. 2002).

9 Id. at 863.

5 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 se t forth (i.e., expressly

charged) in the count of which the defendant was convicted

involved use of explosives (including any explosive material

or destructive device) or, by its nature, presented a serious

potential risk of physical injury to another

. 7

We hold that an offense of unlawfully possessing a machine gun in

violation of 18 U.S.C. § 922(o) is a “crime of violence” because it

constitutes conduct that presents a serious risk of physical injury

to another. This risk is presented by the inherently dangerous

nature of machine guns; a determination that is evidenced by

Congress’s decision to regulate the possession and transfer of this

specific type of firearm.

Golding argues to the contrary, attempting to distinguish the

unlawful possession of a machine gun from ot her firearm offenses

that have been adjudicated “crimes of violence” under the

Guidelines. First, Golding contends that “possession” is not

“conduct.” This contention is foreclosed by our recent decision in

United States v. Serna

, 8 in which we recognized that “‘possession,’

though often passive, constitutes ‘conduct.’” 9

Second, Golding urges us to consider the unlawful possession

of a machine gun as a less serious cri m e than the unlawful10 18 U.S.C. § 922(o)(B).

11 See Royce v. Hahn

, 151 F.3d 116 (3d Cir. 1998); Bourke v.

Hawk , 121 F. Supp. 2d 9 (D.C.C. 2000).

6 possessio n of the other firearms the possession and transfer of

which are regulated or prohibited und er federal gun-control

statutes. Specifically, he notes that § 922(o), which applies only

to machine g uns, contains a “grandfather clause” that permits a

private citizen to possess and transfer a duly registered machine

gun that was “lawfully possessed” prior to 1986. 10 Golding is

correct that this is unique within federal gun-control legislation,

as there are no similar grandfather clauses for the possession or

transfer of other types of firearms. Golding thus concludes that

it would be “absurd” for us to construe the unlawful possession of

a machine gun as a “violent crime,” because —— unlike pipe bombs,

sawed-off shotguns, grenades and other similarly regulated firearms

—— a machine gun can be lawfully possessed.

Golding also attempts to buttress his inference from the

statute’s text by noting that in two instances courts have declined

to classify the unlawful possession of a machine gun as a “crime of

violence.” 11 These cases are plainly inapposite: First, they do not

pertain to the sentencing of a defendant under the Guidelines, and,

second, they do not address circumstances in which a defendant’s

current indictment is predicated on a prior offense of unlawfully

possessing a machine gun. Rather, these courts were simply

resolving disputes concerning the Bureau of Prisons’s12 See David T. Hardy, The Firearms Owners’ Protection Act: A

Historical and Legal Perspective

, 17 C UMB

. L. R EV

. 585, 625 (1987).

13 See United States v. Best

, 250 F.3d 1084 (7th Cir. 2001);

United States v. Johnson

, 246 F.3d 330 (4th Cir. 2001); United

States v. Brazeau , 237 F.3d 842 (7th Cir. 2001); United States v.

Allegree

, 175 F.3d 648 (8th Cir. 1999); United States v. Amparo

, 68

F.3d 1222 (9th Cir. 1995); United States v. Dunn

, 946 F.2d 615 (9th

Cir. 1991).

14 The Tenth Circuit has held in an un published opinion that

a conviction for the illegal possession of a machine gun is a

“crime of violence” unde r the same Bureau of Prisons statute

adjudicated in Bourke v. Hawk

, 121 F. Supp. 2d at 12-14, which came

to the opp osite conclusion and is relied on by Golding. S ee

Sutherland v. Flemming

, 229 F.3d 1164 (10th Cir. 20 00)

7 interpretation of particular post-conviction penal statutes.

In assessing Golding’s construction of both § 922(o) and the

Guidelines, we encounter two difficulties. First, there is no

legislative history for § 922(o) to explain Congress’s purpose in

including the grandfath er clause. 1 2 Second, there is no case law

addressing the issue whether the unlawful possession of a machine

gun is a “crime of violence” for purposes of determining a base

offense level under § 4B1.2(a) of the Guidelines. This lacuna

contrasts starkly with the jurisprudentially ubiquitous sawed-off

shotgun, the unlawful possession of which has been adjudicated by

numerous courts as constituting a “crime of violence.” 1 3 Yet, we

have located no published court decisions addressing the particular

issue raised in this case: Whether a prior conviction for the

unlawful possession of a machine gun constitutes a conviction for

a “crime of violence,” as this term is defined by § 4B1.2(a) of the

Guidelines. 14(unpublished).

15 Golding was indict ed under 18 U.S.C. § 922(o) of the

Firearms Owners Protection Act, which incorporates by reference, in

18 U.S.C. § 921(a)(23), the NFA’s definition of a machine gun. S ee

generally 26 U.S.C. § 5845 (l isting and defining types of

“firearms,” including machine guns

, rifles, shotguns, and

“destructive device s,” such as missiles, grenades, poison gas,

rockets or “similar devices”).

16 See 26 U.S.C. § 5861(d) (2002).

17 United States v. Staples

, 511 U.S. 600, 611-12 (1994)

(emphasis added). S ee United States v. Freed

, 401 U.S. 601 (1971).

8 We do not suggest, however, that Golding’s interpretation of

the Guidelines and § 922(o) should prevail by default. The

analytical framework employed by courts to conclude that the

unlawful possession of a sawed-off shotgun is a “crime of violence”

is also relevant for assessing whether the unlawful possession of

any firearm regul ated by a federal statute —— particularly those

regulated by the National Firearms Act 15 (“NFA”) —— is a “crime of

violence” under § 4B1.2(a) of the Guidelines.

In determini ng the elements required for a conviction under

NFA, 16 for example, the Supreme Court has explained that

despite their potential for harm, guns generally can be owned

in perfect innocence. Of course, we might surely classify

certain categories of guns

—— no doubt including the

machineguns

, sawed-off shotguns, and artillery pieces that

Congress has subjected to regulation

—— as items the ownership

of which would have the same quasi-suspect character we

attributed to owning hand grenades in Freed

. 17

The analytical trigger for determining whether the unlawful

possession of a machine gun is a “crime of violence” under the

Guidelines is not whether the s tatute regulating this particular18 See generally 18 U.S.C. § 921; 26 U.S.C. § 5845.

19 See United St ates v. Farrell , 69 F.3d 891, 894 (8th Cir.

1995) (noting that “machineguns are quasi-susp ect” and thus “one

cannot possess them with innocence a nd claim ignorance of the

law”).

20 Freed , 401 U.S. at 609.

21 Cf. United States v. Dwyer

, 245 F.3d 1168 (10th Cir. 2001)

(holding that the unlawful possession of a firearm is a “crime of

violence” for sentence-enhancement purposes); United States v.

Huffhines

, 967 F.2d 314 (9th Cir. 1992) (holding that the unlawful

possession of a silencer attac hed to loaded gun is a “crime of

violence”).

9 type of firearm contains a grandfather clause but does not for

similarly regulated firearms, as Golding contends. Rather, the

question is whether a machine gun is simply one of a general class

of “firearms” that Congress h as subjected to regulation or

prohibition as such. 18

All weapons that Congress has regulated or prohi bited under

federal law as “firearms”

—— including the machine guns, sawed-off

shotguns, and artillery pieces mentio ned by the S taples Court

——

are “quasi-suspect.” 19 As recognized by the F r eed Court and

affirmed by the Staples Court, such firearms are “highly dangerous

offensive weapons” that are regulat ed “in the interest of public

safet y.” 20 Accordingly, the unlawful possession of any such

“firearm,” including a machine gun, is a “crime of violence” under

the Guidelines. 21

This conclusion is consistent with our past decisions that

have predicated our assessment of a firearm’s inherently dangerous22 195 F.3d 795 (5th Cir. 1999).

23 Id. at 799 n.1 (quoting United States v. Fortes

, 133 F.3d

157, 162-64 (1st Cir. 1998), modified

, 141 F.3d 1 (1st Cir. 1998)).

24 Id. at 799 n.4 (quoting S. Rep. No. 90-1501, at 28 (1968))

(emphasis added).

25 Id. at 799.

10 nature on whether it is specifically regulated as a “firearm” in

the relevant federal gun-control statutes. In U nite d States v.

Jennings

, 22 for instance, we not ed our agreement with the First

Circuit that there is a “difference between possession of a generic

‘firearm’ and possession of one of the specialized weapons singledout for particularized treatment” in the NFA. 23 We also noted that,

in 1968, Congress expanded the definition of “firearm” in response

to its

specific declaration and finding that destructive devices

(such as bazookas, mortars, antitank g uns, bombs, missiles,

etc.), machine guns

, short-barreled shotguns, and shortbarr eled rifles are primarily weapons of war and have no

appropriate sporting use or use for personal protection. 24

“[T]he primary reason that unregist ered possession of these

particular weapons is a crime is the virtual inevitability that

su ch possession will result in violence.” 2 5 Although in J ennings

we were only addressing the question whether the unlawful

possession of a sawed-off shotgun was a “crime of violence”

——

which we answered with a definitive yes

—— our analysis there

clearly e ncompasses and justifies our determining in the instant

case that the unlawful possession of a machine gun is likewise a26 244 F.3d 396 (5th Cir. 2001).

27 Id. at 398 (emphasis added).

28 301 F.3d 309, 312 (5th Cir. 2002) (en banc).

29 United States v. Diaz-Diaz

, No. 02-20392, 2003 WL 1785764,

at *3 (5th Cir. Apr. 3, 2003) (noting that our previous holding in

“ Rivas-Palacios does not preclude our [now] holding that possession

of a short-barrel firearm is not a § 16(b) ‘crime of violence’”).

Our decision in Diaz-Diaz is predicated on our earlier rejection of

R ivas-Palacios in United States v. Hernandez-Neave

, 291 F. 3d 296

(5th Cir. 2001), for failing to follow the framework for assessing

11 “crime of violence.”

In United States v. Rivas-Palacios

, 26 we again reiterated our

commitment to this analytical fr amework, i .e.

, that the illegal

possession of any “firearm” listed in the federal gun-control

statutes is a “crime of violence.” There we stated that:

We are persuaded that the unlawful possession of any

u nregistered firearm

, a sawed-off shotgun in this ca se,

“involves a substantial risk that physical force against the

person or property of another” will occur. 27

Golding nevertheless attempts to make much of the fact that these

decisions applied the “crime of violence” definition in 18 U.S.C.

§ 16(b), which we subsequently disavowed in Charles in favor of the

“crime of violen ce” definition in the Guidelines. 2 8 Golding’s

argument, though, misses the po int. The relevant analysis here

turns on the statutory basis for categorizing the unlawful

possession of a firearm as a “crime of violence” under § 4B1.2(a)

of the Guidelines

. Although we may have recently revised our

position on whether the mere possession of a sawed-off shotgun is

a “crime of violence” under § 16(b), 29 this in no way affects thea “crime of violence” under § 16(b) as set forth by United States

v. Chapa-Garza

, 243 F.3d 921 (5th Cir. 2001), which was decided

only eight days before Rivas-Palazios

.

30 U.S. S ENTENCING G UIDELINES M ANUAL § 4B1.2(a).

31 Serna , 309 F.3d at 864.

32 Id. at 863 (quoting Jennings , 195 F.3d at 799).

12 categorization of possession of a machine gun as a “crime of

violence” under § 4B1.2(a) of the Guidelines, which requires only

a “ser ious potential risk of physical injury.” 3 0 This definition

is clearly met by the “quasi-suspect” nature of those firearms that

Congress has chosen to regulate or prohibit, including machine

guns.

This per se treatment is equally clear from an examination of

our post- Charles decision in United States v. Serna

, in which we

determined that the unlawful possession of a sawed-off shotgun is

a “crime of violence” under § 4B1.2(a) of the Guidelines. 3 1

Although Serna ’s holding is limited to the particular circumstances

of the defendant’s prior conviction —— the unlawful possession of

a sawed-off shotgun

—— the implication of our Serna decision is

much broader. In Serna , we re-affirmed the reasoning of Jennings

that possession of any “unregistered firearm” is per se a crime of

violence because such weapons inevitably result in “v iolence.” 3 2

We also took a measure of comfort from the legislative history of

the NFA, which expressly states that “there is no reason why anyone

except a law officer should have a machine gun or a sawed-off33 Id. (quoting H. Rep. No. 1780, at 1 (1934)).

34 73 A M

. J UR . 2d Statutes § 134 (2002).

13 shotgun.” 33 We are satisfied that machine guns are deserving of the

same classification as sawed-off shotguns in the jurisprudence on

the possession of firearms as “crimes of violence” under § 4B1.2(a)

of the Guidelines.

It would be anomalous, therefore, for us to treat the illegal

possession of particular types of federally prohibited “firearms”

(e.g., sawed-off shotguns and pipe bombs) as “crimes of violence,”

but not treat possession of another p articular type of federally

proscribed “firearm” (e.g., machine guns) as a “crime of violence,”

even though all types are similarly regulated or prohibited under

the federal gun-control statutes. To do so would, in effect,

violate the canon of noscitur a sociis

, which directs us to

interpret a term in a statute “by reference to the words associated

with them in the statute.” 34

Congress first id entified a c lass of firearms that are

inherently dangerous and then required that a ll such weapons be

registered. The fact that Congress has totally banned ownership by

private citizens of some, but not all, types of firearms within

this class is a distinction without a differen ce. As we have

already deter mined, under § 4B1.2(a) of the Guidelines, that

unlawful possession of many of the types of firearms in this class

is a “crime of violence” simply by dint of being in the class ——35 Cf. Gregory v. Ashcroft , 501 U.S. 452, 465 (1991) (noting

that under the statutory canon of noscitur a sociis , “a word is

known by the company it keeps”).

14 and as we have never recognized an exception for any particular

“member” of the class

—— it stands to reason that unlawful

possession of any firearm that is included in this class is also a

“crime of vi olence.” 3 5 This is what is signified by the phrase

continually repeated throughout the relevant jurisprudence that the

unlawful possession of “any unregistered firearm” (of which a

machine gun is one) is a “crime of violence.”

III.

CONCLUSION

For purposes of § 4B1.2(a) o f the Guidelines, unlawful

possession of a machine gun is not materially distinguishable from

unlawful possession of a ny or all other “firearms” identified in

the NFA, or in other relevant gun-control statutes for that matter.

Accordingly, the sentence imposed by the district court is vacated,

and the case is remanded for resentencing, with Goldin g’s prior

conviction for unlawful possession of a machine gun to be

classified under the Guidelines as a “crime of violence,” producing

a base offense level of 20. And, as the “sporting exception” is

inapplicable unless the base offense level is 14 or less, that

exception could play no part in the resentencing calculus, even if

it were otherwise applicable.

SENTENCE VACATED; CASE REMANDED for resentencing.15