US v. Saavedra, No. 07-2192 (10th Cir. May 1, 2008): Half a sentencing loaf for a defendant who pled guilty to being an addict or unlawful user of a controlled substance in possession of a firearm and ammunition, in violation of 18 USC 922(g)(3). Following a traffic stop, Mr. Saavedra told ABQ officers he had a shotgun inside the vehicle. An unregistered, sawed-off 12-gauge shotgun with a barrel length of 13.25 inches and a total length of 21 inches was found. Mr. Saavedra's girlfriend helpfully volunteered that Mr. Saavedra habitually used heroin, and he confirmed this. He said he knew the weapon was "short," he thought the barrel was 18 inches long. Mr. Saavedra pled guilty to the drug user in possession charge in exchange for the government dropping the unregistered firearms count. Mr. Saavedra did not make any admissions about his knowledge of the gun barrel's length at the plea. At sentencing, he objected to 1) application of USSG 2K2.1(a)(5) base offense level of 18 for possessing a sawed off shotgun and 2) his criminal history category being calculated as II by including a prior misdemeanor conviction of negligent use of a firearm under an Albuquerque municipal ordinance.
The Tenth Circuit held the base offense level was properly calculated as 18. Although the government must prove the defendant knew of a weapon's special characteristics that render possession a crime to support a conviction under 18 USC 922, no such proof of scienter is necessary to apply the guideline because the text does not explicitly require scienter. Thus, it was sufficient for the government to prove that the weapon possessed the qualifying characteristics and did not need to prove Mr. Saavedra knew of them.
However, the court may have procedurally erred by including Mr. Saavedra's conviction under the Albuquerque ordinance. A local ordinance violation can be included in criminal history if the ordinance violation would also violate state law. In this case, the ordinance and state law overlapped only in a couple of areas. The district court committed procedural error by not inquiring into what section of the ordinance Mr. Saavedra violated and remand for resentencing was required.