United States of America, Plaintiff-appellee, v. Terry Lynn Stinson, Defendant-appellant, 943 F.2d 1268 (11th Cir. 1991)

In this case, we decide whether a conviction for possession of a firearm by a felon qualifies as a "crime of violence" for purposes of enhancing a defendant's sentence under the "career offender" provisions of the Sentencing Guidelines. We conclude that illegal weapons possession by a convicted felon is inherently a "crime of violence" as defined by the Guidelines, and we affirm the sentence imposed by the district court.

On October 31, 1989, defendant Terry Lynn Stinson robbed a bank in Florida. A few days later, defendant was arrested. At the time of his arrest, defendant was in possession of three inert hand grenades, ammunition, a number of components for the construction of bombs, a razor knife, and a sawed-off shotgun.

Defendant pled guilty to a five-count indictment charging him with bank robbery, in violation of 18 U.S.C. § 2113(a), (d), possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g) & 924(a) (2), (e),¹  use of a firearm during, and in relation to, a crime of violence, in violation of 18 U.S.C. § 924(c), weapons registration violation, in violation of 26 U.S.C. §§ 5861(d) & 5871, and transportation of stolen property through interstate commerce, in violation of 18 U.S.C. § 2312. Defendant had been earlier convicted of three violent felonies. In July 1990, defendant was sentenced under the career offender guidelines to 365 months imprisonment, consecutive to the mandatory minimum five-year imprisonment for use of a firearm during commission of a crime of violence.

This case is controlled by the career offender provisions, sections 4B1.1 and 4B1.2, of the Guidelines.²  Under section 4B1.1, a defendant is a career offender if:

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

(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.

U.S.S.G. § 4B1.1. Defendant argues that the district court's use of his possession of a firearm by a convicted felon conviction as the predicate "crime of violence" offense for career offender purposes under U.S.S.G. § 4B1.1, was improper. Defendant argues that possession of a firearm by a convicted felon is not a "crime of violence."

Section 4B1.2 defines the term "crime of violence," borrowing language from 18 U.S.C. § 924(e) of the Armed Career Criminal Act:

(1) The term "crime of violence" means any offense under federal or state law punishable by imprisonment for a term exceeding one year that--

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another, or

(ii) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of injury to another.

U.S.S.G. § 4B1.2 (1989) (emphasis added).

In the application notes to section 4B1.2, the Sentencing Commission has listed a number of crimes fitting this definition and has noted that other offenses are included where

(A) that offense has an element the use, attempted use, or threatened use of physical force against the person of another, or

(B) the conduct set forth in the count of which the defendant was convicted involved use of explosives or, by its nature, presented a serious potential risk of physical injury to another.

U.S.S.G. § 4B1.2, comment. (n. 2) (emphasis added).

The defendant's weapons possession conviction is not among those specifically listed in section 4B1.2 or its application notes, and does not have as a statutory element "the use, attempted use, or threatened use of physical force" as provided in section 4B1.2(1) (i) and application note 2(A). We therefore consider whether the weapons possession conviction satisfies the requirements of section 4B1.2(1) (ii) and application note 2(B).

Defendant argues that we cannot look beyond the generic definition of the offense to determine whether weapons possession by a felon is a "crime of violence" under section 4B1.2(1) (ii) and application note 2(B). In support, defendant cites United States v. Gonzalez-Lopez, 911 F.2d 542, 547 (11th Cir. 1990), in which we held that the term "crime of violence," as used in an earlier version of the career offender guidelines, "contemplate [d] a generic category of offenses which typically present the risk of injury to a person or property irrespective of whether the risk develops or harm actually occurs."

Such a categorical analysis certainly is allowed under the amended guidelines and application notes. Section 4B1.2(1) (ii), as amended, provides that an offense constitutes a "crime of violence" where it "involves conduct that presents a serious potential risk of physical injury to another." Application note 2, as amended, clarifies that an offense qualifies if "by its nature " that offense involves "a serious potential risk of physical injury to another." Under the amended guideline and application note, then, a sentencing court need not consider the facts underlying a particular offense, assuming such an inquiry is permissible, if the offense "by its nature" presents a serious risk of violence--the offense is a "crime of violence" whether or not the violence actually materialized in the specific conduct with which defendant is charged. Because we conclude that a categorical analysis is at least permissible under the amended guidelines, and because (as discussed infra) we think illegal firearm possession by a convicted felon "by its nature" imposes "a serious potential risk of physical injury," we need not decide today whether Gonzalez-Lopez should be applied to the guidelines and application notes as amended to require only a categorical analysis.³ 

B. Possession of a Firearm by a Felon as a "Crime of Violence"

We must next consider, then, whether possession of a firearm by a convicted felon constitutes a "crime of violence" because the offense "by its nature present [s] a serious potential risk of physical injury to another." We believe it does.

The Ninth Circuit has already concluded that, under the earlier version of section 4B1.2 and its application notes, "the offense of being a felon in possession of a firearm by its nature poses a substantial risk that physical force will be used against person or property." United States v. O'Neal, 910 F.2d 663, 667 (9th Cir. 1990). In support the O'Neal court looked to the legislative history underlying 18 U.S.C. § 922(g),⁴  including a statement by the original sponsor of that legislation to the effect that felons "may not be trusted to possess a firearm without becoming a threat to society." Id. (quoting 114 Cong.Rec. 14,773 (1968) (statement of Sen. Long)).

In a similar way, another court decided that, in the context of a pretrial detention hearing, illegal firearm possession by a felon always amounts to a "crime of violence," as defined by the Bail Reform Act.⁵  United States v. Jones, 651 F. Supp. 1309 (E.D. Mich. 1987). The court in Jones offered four independent justifications for its conclusion that the offense of weapons possession by a felon "by its nature" involves a "substantial risk of physical force": (1) felons are more likely to use firearms in an irresponsible manner; (2) felons are acutely aware that such activity is illegal, making the act of weapons possession a knowing disregard for legal obligations imposed upon them; (3) felons are more likely to commit crimes, enhancing the likelihood the weapon will be used in a violent manner; and (4) illegal weapons possession is an ongoing offense that often is not ended voluntarily, but only through law enforcement intervention, thus " [t]he character of the crime cannot be measured solely as of the moment of discovery and arrest." Jones, 651 F. Supp. at 1310. See also United States v. Phillips, 732 F. Supp. 255, 262-63 (D. Mass. 1990); United States v. Johnson, 704 F. Supp. 1398 (E.D. Mich. 1988).

We find further support for the conclusion that the offense of weapons possession by a felon "by its nature" imposes a "serious potential risk of injury" in the legislative history behind 18 U.S.C. § 924(e), which streamlined the categories of persons unqualified to receive or possess firearms and established a stiff mandatory minimum punishment.⁶  Section 924(e) was included as part of the Federal Firearms Owners Protection Act of 1986, which relaxed federal rules regarding private sales of firearms among sportsmen and collectors while simultaneously "enhanc [ing] the ability of law enforcement to fight violent crime and narcotics trafficking." H.R.Rep. No. 495, 99th Cong., 2d Sess. 1 (1986), U.S.Code Cong. & Admin.News 1986, 1327 (report from House Committee on the Judiciary) (emphasis added). Introducing the measure on the floor of the Senate, its sponsor Senator McClure outlined what he considered unduly aggressive federal enforcement of private weapons sales among collectors and sportsmen, and concluded, "We need to redirect law enforcement efforts away from what amounts to paperwork errors and toward willful firearms law violations that will lead to violent crime; for example, selling stolen guns, or selling firearms to prohibited persons. " 131 Cong.Rec. S9102 (daily ed. July 9, 1985) (statement of Sen. McClure) (emphasis added); see also id. at 9113 (statement of Sen. Laxalt) (" [This act] seeks to direct law enforcement efforts toward those firearms transactions most likely to contribute to violent crime. ") (emphasis added); 131 Cong.Rec. S8700 (daily ed. June 24, 1985) (statement of Sen. Matsunaga) ("Handguns insofar as I am concerned, ... are intended for use for one purpose only; that is to kill other human beings. Whatever controls we can impose upon the sale and distribution of those weapons of death, I say let us go to it. I am relieved by the language of S.49 to the extent that it prohibits firearm and ammunition possession, receipt, or transportation in commerce by convicted felons....").

Like the legislative body that criminalized weapons possession by convicted felons, we conclude that defendant's offense of conviction "by its nature" imposed a "serious risk of physical injury," whether or not injury results at the exact moment of arrest or anytime during defendant's ongoing possession of the firearm.⁷  Because this offense always constitutes a "crime of violence," a convicted felon found guilty of firearms possession is automatically subject to sentence enhancement under the career offender provisions of the Sentencing Guidelines. A sentencing court need not look to the "conduct set forth in the count from which the defendant was convicted," if such an inquiry is permissible,⁸  to determine whether a "crime of violence" has been committed.

Defendant contends that application of section 4B1.2, as amended after his offense but before sentencing, violates the constitutional protection against ex post facto laws. As noted supra, we are bound as a general matter by the specific instruction from Congress to consider the Sentencing Commission's guidelines and policy statements "that are in effect on the date the defendant is sentenced." 18 U.S.C. § 3553(a) (5); see also United States v. Russell, 917 F.2d 512, 514 n. 2 (11th Cir. 1990), cert. denied, --- U.S. ----, 111 S. Ct. 1427, 113 L. Ed. 2d 479 (1991); United States v. Marin, 916 F.2d 1536, 1538 & n. 2 (11th Cir. 1990) (per curiam); United States v. Gonzalez-Lopez, 911 F.2d 542, 546 n. 3 (11th Cir. 1990).⁹  This circuit has made an exception, however, where the effect of applying an amended guideline "would be to subject a defendant to an increased sentence," thereby implicating the Constitution's prohibition on laws having ex post facto consequences. United States v. Worthy, 915 F.2d 1514, 1516 n. 7 (11th Cir. 1990) (citing Miller v. Florida, 482 U.S. 423, 107 S. Ct. 2446, 96 L. Ed. 2d 351 (1987)).

Defendant argues that under the Gonzalez-Lopez precedent, discussed supra, we would have been limited to a "categorical analysis" of the offense of conviction to determine whether it constitutes a "crime of violence" for career offender purposes. See Gonzalez-Lopez, 911 F.2d at 547 (offense is considered "crime of violence" if it "typically present [s] the risk of injury to a person or property irrespective of whether the risk develops or harm actually occurs"). But, our conclusion that illegal firearm possession by a felon " 'by its nature' impose [s] a 'serious risk of physical injury,' whether or not that risk materialized at the exact moment of arrest, or anytime during defendant's ongoing possession of the firearm" also satisfies the Gonzalez-Lopez standard. Defendant's sentence was not enhanced as a result of our application of the newer guidelines and application notes; the Ex Post Facto Clause is not implicated.

Because defendant's instant conviction for weapons possession by a felon is a "crime of violence," as defined in section 4B1.2 and its application notes, the district court properly enhanced defendant's sentence under the career offender provisions of the Sentencing Guidelines. We AFFIRM.