United States v. Royal, No. 10-5296 (4th Cir. 2013)
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Defendant appealed his sentence and conviction for unlawfully possessing ammunition after being previously convicted of a crime punishable by imprisonment for a term exceeding one year. The court concluded that the evidence was sufficient to support defendant's conviction; the district court did not plainly err in instructing the jury; but the district court's application of the modified categorical approach to support defendant's sentencing under the Armed Career Criminal Act (ACCA), 18 U.S.C. 924(e), was in error. Accordingly, the court affirmed the conviction and reversed the sentence, remanding for resentencing.
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PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-5296 UNITED STATES OF AMERICA, Plaintiff Appellee, v. THOMAS ROYAL, Defendant Appellant. Appeal from the United States District Court for the District of Maryland, at Baltimore. Richard D. Bennett, District Judge. (1:09-cr-00439-RDB-1) Argued: October 26, 2012 Decided: October 1, 2013 Before TRAXLER, Chief Judge, DIAZ, Circuit Judge, and Catherine C. EAGLES, United States District Judge for the Middle District of North Carolina, sitting by designation. Affirmed in part, vacated in part, and remanded by published opinion. Judge Diaz wrote the opinion, in which Chief Judge Traxler and Judge Eagles joined. ARGUED: James Christopher Fraser, VENABLE, LLP, Baltimore, Maryland, for Appellant. John Walter Sippel, Jr., OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF: James Wyda, Federal Public Defender, Baltimore, Maryland, Paresh S. Patel, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greenbelt, Maryland, for Appellant. Rod J. Rosenstein, United States Attorney, Baltimore, Maryland, for Appellee. DIAZ, Circuit Judge: Thomas Royal possessing was ammunition convicted after by being a jury previously of unlawfully convicted of a crime punishable by imprisonment for a term exceeding one year, in violation district of 18 court U.S.C. § 922(g)(1). determined that At Royal was sentencing, an armed the career criminal under the Armed Career Criminal Act ( ACCA ), 18 U.S.C. § 924(e), triggering a fifteen-year mandatory minimum sentence. The court sentenced him to 188 months imprisonment. Royal advances three arguments on appeal. First, he contends the government failed to present sufficient evidence to convict him of knowingly possessing ammunition, arguing that since the rounds he possessed were loaded in an antique firearm, the government had a burden to show that the rounds actually designed for use in a non-antique firearm. were Second, Royal asserts that the district court committed plain error when it instructed the jury that the phrase knowingly possessed ammunition meant that Royal knew the rounds were ammunition as we commonly district court categorical under use word. reversibly approach Maryland s predicate the to Finally, erred determine second-degree conviction under by that assault the ACCA. Royal argues using his the prior statute We that the modified conviction constituted conclude a that sufficient evidence supported the jury s verdict and that the 2 district court did not err in its jury instructions. However, in light of the Supreme Court s recent holding in Descamps v. United States, 133 S. Ct. 2276 (2013), we sustain Royal s challenge to the district court s application of the modified categorical approach and its imposition of the ACCA sentencing enhancement. Accordingly, we affirm in part, vacate in part, and remand for resentencing. I. On appeal from a criminal conviction, we view the evidence in the light most favorable to the government. United States v. Herder, 594 F.3d 352, 358 (4th Cir. 2010). A. On January 8, 2009, Sergeant Jones and Detective Rayam of the Baltimore, Maryland Police Department stopped Thomas Royal for driving with an expired registration plate. During the stop, Detective Rayam observed Royal place his hand in his front left jacket pocket, where Rayam noticed a bulge. Suspecting criminal activity, the officers asked if they could search the car. After initially consenting to the search, Royal grew agitated and attempted to push his way past Detective Rayam. Sergeant Jones used his Taser device to subdue him, and a subsequent search of Royal s person revealed an antique Iver Johnson revolver loaded with five .32 caliber rounds. 3 Since Royal had previously been convicted of second-degree assault, a exceeding crime one prohibited ammunition punishable year, him from that the by federal knowingly has terms under the GCA. for a Gun Act ( GCA ) Control possessing traveled in Firearm U.S.C. § 922(g)(1). imprisonment and any interstate term firearm commerce. ammunition are or 18 defined As is relevant here, the term firearm explicitly does not include an antique firearm, which is any firearm manufactured (a)(16)(A). in or The ammunition . . . designed before 1898. term for use Id. § 921(a)(3), ammunition in any means firearm. Id. § 921(a)(17)(A). Royal was charged in a one-count indictment for possession of ammunition § 922(g)(1). by a prohibited At trial, the person, government in violation called of Special GCA Agent David Collier of the Bureau of Alcohol, Tobacco, Firearms, and Explosives ( ATF ) as an expert in identification of firearms and ammunition and the interstate nexus of firearms and ammunition. Collier testified that Royal s revolver had been manufactured in 1895 and therefore, for the purposes of the GCA, was an antique firearm, which is not a firearm. Collier also testified that the rounds had been manufactured outside Maryland and had traveled in interstate commerce. 4 He gave no testimony about whether Royal s rounds had been designed for use in any firearm such that they technically fell within the statute s definition examination that he of ammunition, did not know but the conceded dates of on the crossrounds manufacture. The evidence showed that the rounds were .32 caliber, and manufactured The rounds by the arms themselves published to the jury. evidence as to the companies were also Remington entered and into Winchester. evidence and The government presented no specific rounds design. Nor, aside from cross- examining Collier about the rounds manufacture dates, did Royal himself raise any issues concerning the design of the ammunition. At the close of the government s case, Royal moved under Fed. R. Crim. P. 29 for a judgment of acquittal, arguing that the government had presented insufficient evidence to support a guilty verdict. The district court denied the motion. Royal advanced no defense but renewed his Rule 29 motion, which the court again denied. After closing arguments, the district court instructed the jury that the government needed to prove that Royal knowingly possessed one or more pieces of ammunition. It read them the GCA s Ammunition statutory definition of ammunition: is ammunition or cartridge cases, primers, bullets, or propellant 5 powder designed for use in any firearm, J.A. 148. With respect to the mens rea component, the district court instructed the jury, without objection from Royal, that whether the defendant acted knowingly . . . means [whether] he knew that the ammunition was ammunition as we commonly use the word. The jury returned a guilty verdict on the sole count. A conviction for being a felon in possession of a firearm or ammunition normally carries a maximum penalty of ten years in prison. the 18 U.S.C. § 924(a)(2). government mandatory argued minimum that However, at Royal s sentencing, he sentence was subject because he to a had fifteen-year three prior convictions for a violent felony or serious drug offense, id. § 924(e)(1), including a 2007 guilty plea to Maryland seconddegree assault. Royal argued that under the categorical approach, this conviction did not qualify as a violent felony because violent force is not categorically required for a conviction under Maryland s second-degree assault statute. The district our court rejected this argument and, following decision in United States v. Alston, 611 F.3d 219 (4th Cir. 2010), applied the so-called modified categorical approach to conclude that, based on facts admitted in his plea colloquy, Royal s 2007 second-degree violent felony. The assault district conviction court thus was applied indeed the a ACCA § 924(e)(1) enhancement and sentenced Royal to fifteen years and 6 eight months in prison. Royal timely appealed. Following oral argument, we placed the case in abeyance pending the Supreme Court s decision in Descamps, which issued in June 2013. II. The issues before us are (1) whether Royal was entitled to a Rule 29 judgment of acquittal due to insufficient evidence; (2) whether the district court committed plain error when it instructed the jury that the phrase knowingly possessed ammunition meant [Royal] knew the ammunition was ammunition as we commonly use the word ; and (3) whether the district court erred in applying the modified categorical approach to determine that Royal s 2007 Maryland second-degree assault conviction qualified as a predicate violent felony under the ACCA. A. We first consider Royal s argument that he was entitled to a judgment of acquittal because the government insufficient evidence to support his conviction. offered We review de novo the district court s decision to deny a defendant s Rule 29 motion for judgment of acquittal. F.3d 209, 216 (4th Cir. 2006). United States v. Smith, 451 On an appeal challenging the sufficiency of evidence, we assess the evidence in the light most favorable to the government, and the jury s verdict must stand unless we determine that no rational trier of fact could 7 have found the essential reasonable doubt. elements of the crime beyond a United States v. Young, 609 F.3d 348, 355 (4th Cir. 2010). In violation order of to the prove GCA, that the Royal possessed government was ammunition required to in prove beyond a reasonable doubt that (1) Royal was a convicted felon; (2) he knowingly possessed ammunition; and (3) the ammunition had traveled in interstate commerce. 454 F.3d 390, 395 (4th Cir. See United States v. Moye, 2006). Royal challenges the sufficiency of the government s evidence as to only the second prong, insisting that the government failed to show that the five rounds found in his revolver were ammunition within the statute s definition. Specifically, he argues that the government never met its burden of proving beyond a reasonable doubt that the rounds were designed for use in any firearm ; that is, the government never showed that designed for use in any non-antique firearm. the rounds One of our sister circuits has helpfully articulated this distinction: Bullets are ammunition if they are designed for use in any firearm. 18 U.S.C. § 921(a)(17)([A]) (emphasis added). If these bullets had been designed exclusively for use in [defendant s antique] revolver, they would not be ammunition because by definition this antique revolver is not a firearm. On the other hand, if the bullets were designed for use, not just in this antique revolver, but in other guns manufactured after 1898, then it would appear, given the literal language of the definition, that they are 8 were ammunition because they would be designed for any firearm. United States v. Mixon, 457 F.3d 615, 618 (7th Cir. 2006). The government does not contest this literal reading of the statute. Rather, it posits that its burden of proof did not entail a need to demonstrate that the rounds were designed for use in a non-antique firearm. Instead, it argues that whether the ammunition was designed exclusively for use in an antique firearm is an affirmative defense that must be raised by the defendant and supported by evidence before the government must disprove its application. To support this theory, the government cites numerous cases holding that the antique firearm exception in 18 U.S.C. § 921(a)(3) is an affirmative defense that the defendant bears the exception burden is an of raising. affirmative Because defense to the a antique firearm § 922(g) firearm charge, the government insists, it follows that a claim that ammunition was designed for use in a non-antique firearm is also an affirmative defense, which Royal failed to raise. We accept Royal s literal reading of the statute and agree that rounds designed for use exclusively in antique firearms do not meet the GCA s definition of ammunition. However, we also agree with the government that the antique firearms exception is an affirmative defense, which Royal failed to raise. 9 It is well established that the antique firearm exception is an affirmative defense to a firearm charge under § 922(g). See, e.g., United States v. McMillan, 346 F. App x 945, 947 (4th Cir. 2009) (unpublished); United States v. Lawrence, 349 F.3d 109, 122 (3d Cir. 2003) ( Every circuit court of appeals that has considered this issue has agreed that [the antique firearm exception] is an affirmative defense that must initially be raised by sufficient evidence to justify shifting a burden of proof to the government. ); United States v. Mayo, 705 F.2d 62, 75 (2d Cir. 1983) ( We find no indication in the language of the statute that Congress intended the government to prove in all criminal prosecutions firearms under transactions antiques. ). indictment 18 U.S.C. § 922 involved weapons that the that illegal were not This owes to the longstanding principle that an or other pleading founded on a general provision defining the elements of an offense . . . need not negative the matter of an clause . . . . exception made by a proviso 260 other distinct [I]t is incumbent on one who relies on such an exception to set it up and establish it. States, or U.S. 353, 357 (1922). McKelvey v. United Accordingly, since § 921(a)(3) clearly sets apart the antique firearm exception as a distinct proviso to the general definition of firearm, courts have not hesitated to place the burden on defendants to 10 raise it as an affirmative defense. We agree with this broadly held view. Unlike § 921(a)(3) s antique firearm exception, which stands alone as a separate sentence untethered to the general definition of firearm, the designed for use in any firearm language of § 921(a)(17)(A) s definition of ammunition is part and parcel of the definitional sentence. Consequently, it is the government s initial burden to prove as an element of the offense that the rounds were designed for use in any firearm. We are not persuaded, however, that that burden somehow incorporates the antique firearms exception, thereby requiring the government to not initially designed come forth with exclusively proof for use in that the ammunition was antique firearms. Instead, if a defendant seeks the shelter of the antique firearms exception as it relates to § 921(a)(17)(A) s designed for use clause, it remains incumbent on him to raise the exception as an affirmative defense at trial. This Royal failed to do. Although he is correct that a defendant need only produce more than a scintilla of evidence to raise an affirmative defense, United States v. Sligh, 142 F.3d 761, 762 (4th Cir. 1998), and that an affirmative defense may be raised witnesses, see by the Sherman testimony v. United of the States, government s 356 U.S. (1958), Royal fails to satisfy even this minimal burden. 11 369, own 373 Special Agent Collier s testimony that the rounds were found in an antique revolver and that he did not know the dates of their manufacture constituted the full extent of the evidence on this issue. This evidence, we conclude, was too attenuated to sufficiently raise the defense. Although the ammunition was found loaded in an antique revolver, the mere fact that the ammunition happened to fit in an antique firearm does not mean it was designed for antique firearms. Cf. Mixon, 457 F.3d at 618 ( It is true that the bullets were in the cylinder [of an antique revolver], but that simple fact hardly establishes as a matter of law that they were designed for, and could be safely used, in this weapon. ). Royal, meanwhile, offered no testimony or evidence on the rounds design and never asserted at trial that the firearm. ammunition was not designed for use in a modern Accordingly, because the jury ultimately did not hear even a scintilla of evidence to suggest that the rounds were designed for use exclusively in an antique firearm, Royal was not entitled to have it consider the issue as an affirmative defense. Meanwhile, although the government did not present evidence specifically going to the ammunition s design, the evidence was still sufficient to establish that the ammunition was designed for use ammunition in any was firearm. .32 caliber, The evidence manufactured 12 showed by that the Remington and Winchester, and the ammunition itself was shown to the jury. Since most people are familiar with the appearance of modern ammunition, concluded we that find .32 that the caliber jury rounds could reasonably manufactured by have well-known firearms companies were designed for use in any firearm. As the evidence district violation. satisfied court all correctly three noted, elements of the government s the § 922(g)(1) We therefore hold that sufficient evidence supported Royal s conviction. B. We next address Royal s challenge to the district court s jury instructions. instructions, we Since review Royal for plain did not error. object United Robinson, 627 F.3d 941, 953-54 (4th Cir. 2010). to the States v. Under this standard, Royal must establish that the district court erred, that the error was plain, and that it affected his substantial rights. Id. at 954 (internal quotation marks omitted). Royal asserts that the district court plainly erred when it instructed the jury that the phrase knowingly possessed ammunition meant that Royal knew the ammunition was ammunition as we commonly use the word. Tomlinson, where we held He relies on United States v. that to sustain a conviction, a district court must instruct the jury that the defendant must have had knowledge of those facts that bring the firearm within 13 [the] legal definition prohibited by the GCA. (4th Cir. 1995). 67 F.3d 508, 514 Here, Royal insists the district court ran afoul of Tomlinson when it failed to instruct the jury that the government needed to prove that Royal knew the rounds were ammunition within the GCA s definition, and specifically that Royal knew the rounds were designed for use in a non-antique firearm. We disagree. In light of our first holding, we find no error, plain or otherwise, in the district court s instructions on the offense. knowing possession of ammunition element the The district court properly instructed the jury as to the statutory definition of the word ammunition. satisfied of that the instructions adequately And we are informed the jury that, to sustain a conviction, Royal needed to have knowledge of those facts that brought the rounds in this case within that legal definition. See United States v. Frazier-El, 204 F.3d 553, 561 (4th Cir. 2000) ( The conventional mens rea of criminal statutes . . . requires not that a defendant know that his conduct was illegal, but only that he know the facts that make his conduct illegal. (quoting Staples v. United States, 511 U.S. 600, 605 (1994))). As we have already explained, evidence that the rounds were designed exclusively for use in an antique firearm is not required to prove an element of the offense, but rather provides an affirmative defense. 14 Because the matter of the rounds design was not in issue on the facts presented, the district court did not err, plainly or otherwise, by failing to mention it in its jury instructions. C. Finally, court s we use of determination conviction address the that Royal s modified his qualified U.S.C. § 924(e)(1). categorical 2007 as a We challenge Maryland violent review the district approach and second-degree felony this to under the its assault ACCA, determination de 18 novo. United States v. Harcum, 587 F.3d 219, 222 (4th Cir. 2009). In Descamps, the Supreme Court recently clarified whether courts may apply the modified categorical approach to assess, for ACCA sentencing enhancement purposes, the violent nature of a defendant s prior conviction under an indivisible criminal statute (i.e., one that does not set out elements of the offense in the alternative, criminalize but qualitatively which may different nevertheless categories of broadly conduct). Answering that question in the negative, the Court explained that the modified categorical approach serves a limited function: It helps effectuate the categorical analysis when a divisible statute, listing potential offense elements in the alternative, renders opaque which element played a part in the defendant's conviction. Descamps, 133 S. Ct. at 2283. 15 In this case, Royal s 2007 Maryland second-degree assault conviction is predicated Nevertheless, the authoritative on a facially government judicial has decisions Maryland s second-degree divisible, because statute. 1 indivisible argued have, in elsewhere effect, that converted statute from indivisible Maryland the assault courts have held that to the completed battery form of second-degree assault may consist of either offensive physical contact or infliction of physical harm. Barillas, Supp. (quoting No. Br. of 11-5141 Nicolas v. Appellee at 18-19, United (4th Cir. Aug. 28, 2013), State, 44 A.3d 396, 402 States ECF (Md. No. v. 42 2012)). Because an assault involving physical harm would qualify as a violent felony for sentencing purposes, the argument goes, courts may continue to apply the modified categorical approach to Maryland second-degree assault convictions, in order to determine whether the defendant s conviction was in fact for the physical harm variety of the offense. In addressing this argument, we Id. at 21. acknowledge that the Supreme Court in Descamps reserve[d] the question whether, in determining a crime s elements, a sentencing court should take 1 Maryland s statute prohibiting second-degree assault provides simply that [a] person may not commit an assault. Md. Code, Crim. Law § 3-203(a). "Assault" encompasses the crimes of assault, battery, and assault and battery, which retain their judicially determined meanings. Id. § 3-201(b). 16 account not only of the relevant statute s text, but of judicial rulings interpreting it. resolve that question 133 S. Ct. at 2291. here, however, We need not because regardless of whether judicial decisions might in theory turn an indivisible statute into a divisible one, that is simply not what the Maryland courts have done with respect to the completed battery form of second-degree assault. As the Court explained in Descamps, offenses are divisible when they consist of offense may be proved. alternative elements Id. at 2283. through which the By elements, the Court meant factual circumstances of the offense that the jury must find unanimously and beyond a reasonable doubt. Id. at 2288 (citing Richardson v. United States, 526 U.S. 813, 817 (1999)). Thus, to physical decide harm whether are offensive alternative physical elements of contact the and completed battery form of second-degree assault, we consider how Maryland courts generally instruct juries with respect to that offense. To convict a defendant of an assault of the battery variety under Maryland law, the State must prove that: (1) the defendant caused offensive physical contact with, or harm to, the victim; (2) the contact was the result of an intentional or reckless act of the defendant and was not accidental; and (3) the contact legally was not justified. consented Nicolas, 17 to by 44 the A.3d victim at or 407 was not (quoting, favorably, trial court jury instructions). Maryland juries are not instructed that they must agree unanimously and beyond a reasonable doubt on whether the defendant caused offensive physical contact or physical harm to the victim; rather, it is enough occurred, that each without juror settling agree on only which. that See one also of the two Robinson v. State, 58 A.3d 514, 528, 531 (Md. Ct. Spec. App. 2012) (quoting instruction requiring jury to find, among other elements, that the defendant caused offensive physical contact with or physical harm to [the mirror[ing] victim], the and pattern describing jury that instruction instruction for second as degree assault ). Rather than alternative elements, then, offensive physical contact and physical harm are merely alternative means of satisfying a single element of the Maryland offense. Consequently, because [t]he dispute here does not concern any list of alternative elements, the modified approach has no role to play. Instead, Descamps, 133 S. Ct. at 2285. we must apply the traditional categorical approach, under which we look only to the statutory definition of the state crime and the fact of conviction to determine whether the conduct criminalized by the statute, including the most innocent United States conduct, v. qualifies Torres Miguel, 18 as 701 a crime F.3d 165, of 167 violence. (4th Cir. 2012) (internal quotation marks omitted). have repeatedly statute reaches nonviolent and observed, any no Maryland s unlawful matter And because, as we second-degree touching, how slight, whether assault violent or under the convictions statute, including [Royal s], cannot categorically be crimes of violence. Karimi v. Holder, 715 F.3d 561, 568 (4th Cir. 2013). Accordingly, conviction Royal s does not 2007 Maryland constitute a second-degree predicate violent assault felony supporting a sentencing enhancement under ACCA § 924(e)(1). Cf. Johnson v. United States, 559 U.S. 133, 140-42 (2010) (holding that a violent felony under the ACCA necessarily involves the use of violent force ). III. For evidence the foregoing supported reasons, Royal s we conclude conviction and court did not err in its jury instructions. that that sufficient the district However, in light of Descamps, the district court s application of the modified categorical approach to support 19 Royal s ACCA sentencing enhancement was in error. Accordingly, we affirm Royal s conviction, vacate his sentence, and remand for resentencing. 2 AFFIRMED IN PART, VACATED IN PART, AND REMANDED 2 We deny Royal s motion for leave to file a supplemental brief. 20
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