Circuit Split On Whether Possession of Sawed-Off Shotgun Is An ACCA Predicate

As you're likely aware, the Armed Career Criminal Act requires a 15-year mandatory minimum prison sentence for those convicted of being a felon-in-possession and who have three prior convictions for a "violent felony" or a "serious drug offense." The ACCA defines "violent felony" to include, among other things, felonies that "involve[] conduct that presents a serious potential risk of physical injury to another." (The so-called "otherwise clause" found in 18 U.S.C. § 924(e)(2)(B)(ii).) Until recently, according to the Sixth Circuit's decision in United States v. Amos, every circuit to have considered the question, including the Fifth Circuit, has held that possession of a sawed-off shotgun qualifies as a violent felony under the ACCA's otherwise clause.

The harmony, like a clay pigeon, has been shattered. With its 2-1 decision in Amos, the Sixth Circuit creates a circuit split by holding that possession of a sawed-off shotgun is not an ACCA violent felony. The court reasons that simply possessing a firearm, even a sawed-off shotgun, is not itself conduct that presents a serious potential risk of physical injury to another. A concurrence adds that the Supreme Court's decision in Leocal v. Ashcroft, which considered the slightly narrower language found in 18 U.S.C. § 16(b)'s crime-of-violence definition, also supports the court's holding. The dissent essentially argues that the only reason to possession a sawed-off shotgun (described colorfully as a "gangster-type" "weapon of war") is for criminal purposes, thus presenting the requisite serious potential risk of physical injury to another.

Now that we've got a circuit split on the issue, you may want to consider preserving it should it arise in any of your cases. Note that the issue isn't confined to ACCA cases. The guideline definition of "crime of violence" in §4B1.2(a) is nearly identical to the ACCA's "violent felony" definition, including the otherwise clause. So it's an issue there, as well. (In fact, that's the context in which the Fifth Circuit first addressed the issue: United States v. Serna, 309 F.3d 859 (5th Cir. 2002).)

For further discussion of Amos, head on over to the Volokh Conspiracy.