Opinion
Criminal Action No. 5:07-73-JMH.
January 29, 2008
MEMORANDUM OPINION AND ORDER
During the sentencing hearing conducted in this matter on January 28, 2008, Defendant Hawkins objected to the Presentence Report, namely the applicability of the career offender enhancement in the calculation of his sentence. For the reasons listed below, Defendant's objection is not well taken.
Defendant's prior convictions indicate that he is a Career Offender because he "has at least two prior felony convictions of either a crime of violence or a controlled substance offense." See U.S. Sentencing Guidelines Manual § 4B1.1(a) (2007). On January 19, 1996, the defendant was convicted of possessing with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1). On April 12, 2001, the defendant was convicted of possessing an unregistered firearm in violation of 26 U.S.C. § 5845. The commentary to the Career Offender Guidelines expressly provides that "[u]nlawfully possessing a firearm described in 26 U.S.C. § 5845(a) (e.g., a sawed-off shotgun or sawed-off rifle, silencer, bomb, or machine gun) is a `crime of violence.'" U.S. Sentencing Guidelines Manual § 4B1.2 cmt. n. 1 (2007).
The defendant's reliance on United State v. Amos, 501 F.3d 524 (6th Cir. 2007), is misplaced. In Amos, the Court held that the possession of a sawed-off shotgun does not amount to a violent felony for the purposes of the Armed Career Criminal Act. Id. at 530. The Amos court did not address the Guidelines enhancement for a Career Offender. While the definitions of "violent felony" in the Armed Career Criminal Act as defined in 18 U.S.C. § 924(e)(2)(B) and "crime of violence" as defined in the Sentencing Guidelines are similar, they are not identical. As the commentary to Section 4B1.4 provides, "[i]t is to be noted that the definitions of `violent felony' and `serious drug offense' in 18 U.S.C. § 924(e)(2) are not identical to the definitions of `crime of violence' and `controlled substance offense' used in § 4B1.1 (Career Offender). . . ." U.S. Sentencing Guidelines Manual § 4B1.4, cmt. n. 1 (2007). Although possession of a sawed-off shotgun is not one of the enumerated offenses listed in 18 U.S.C. § 924(e)(2)(B), the Career Offender Guidelines "expands the definition of `crime of violence' in Application Note 1 to § 4B1.2 (Definitions of Terms Used in Section 4B1.1) to include unlawful possession of any firearm described in 26 U.S.C. § 5845(a)." U.S. Sentencing Guidelines Manual app. C, amend. 674, at p.
Other circuits have similar concluded that the possession of a firearm described in 26 U.S.C. § 5845(a) is a crime of violence for Career Offender purposes. In United States v. Owen, 447 F.3d 1345, 1346-47 (11th Cir. 2006), for example, the court, relying in part on the Guidelines' expanded definition of "crime of violence," and in part on a host of other circuits that have held that prior convictions under the National Firearms Act, which prohibits among other things the possession of an unregistered sawed-off shotgun, see 26 U.S.C. § 5861, concluded that the defendant's prior conviction for possessing a sawed-off rifle was a "crime of violence" for Career Offender purposes. This Court reaches the same conclusion.
For all of the reasons stated above, Defendant Hawkins' objection to the Presentence Report is OVERRULED.