United States of America v.  Elliot Johnson

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-4414 
ELLIOT JOHNSON,
Defendant-Appellant. 
Appeal from the United States District Court
for the Western District of Virginia, at Abingdon.
James P. Jones, District Judge.
(CR-99-75)
Argued: March 2, 2001
Decided: April 3, 2001
Before WIDENER and LUTTIG, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by published opinion. Senior Judge Hamilton wrote the
opinion, in which Judge Widener and Judge Luttig joined.
COUNSEL
ARGUED: Barry Lynn Proctor, Abingdon, Virginia, for Appellant.
Eric Matthew Hurt, Assistant United States Attorney, Abingdon, Vir-
ginia, for Appellee. ON BRIEF: Robert P. Crouch, Jr., United States
Attorney, Abingdon, Virginia, for Appellee.

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OPINION
HAMILTON, Senior Circuit Judge:
Following a jury trial, Elliot Johnson (Johnson) was convicted of
possession of cocaine base (crack) with intent to distribute and distri-
bution of crack within 1,000 feet of a public school, 21 U.S.C.
§§ 841(a)(1) and 860(a). After concluding that Johnson was a career
offender pursuant to United States Sentencing Guidelines Manual
(Sentencing Guidelines or USSG) § 4B1.1, the district court sen-
tenced Johnson to 262 months’ imprisonment.1 Johnson appeals his
sentence, arguing the district court erred when it concluded that he
should be sentenced as a career offender under the Sentencing Guide-
lines. For the reasons stated below, we affirm.
I
On April 28, 1999, a Bristol Police Department (BPD) informant
purchased crack at Johnson’s residence in Bristol, Virginia. Later that
day, the BPD obtained a search warrant for Johnson’s residence and,
shortly thereafter, the BPD conducted a search of his residence. Dur-
ing the search, the BPD seized 5.01 grams of crack from Johnson’s
bedroom. It was later determined that these events occurred within
1,000 feet of a public school.
On January 13, 2000, Johnson was charged in a single count super-
ceding indictment with possession of crack with intent to distribute
and distribution of crack within 1,000 feet of a public school, 21
U.S.C. §§ 841(a)(1) and 860(a). Following a jury trial, Johnson was
convicted.
Johnson was sentenced on May 23, 2000. At sentencing, the dis-
trict court determined that Johnson was a career offender pursuant to
USSG § 4B1.1. The district court found that Johnson was over the age
of eighteen at the time of the instant offense and that he had one prior
felony conviction for a controlled substance offense, a 1992 New Jer-
1Because Johnson was sentenced in May 2000, the district court used
the 1998 version of the Sentencing Guidelines. Unless otherwise noted,
all citations to the Sentencing Guidelines refer to the 1998 version.
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sey felony conviction for possession of a controlled substance with
the intent to distribute within 1,000 feet of a school, and one convic-
tion for a crime of violence, a 1996 New Jersey conviction for posses-
sion of a sawed-off shotgun. As a result of the district court’s career
offender determination, Johnson’s offense level was increased from
twenty-eight to thirty-four. Johnson’s offense level, coupled with a
criminal history category of six, yielded a guideline range of 262 to
327 months’ imprisonment. The district court sentenced Johnson to
262 months’ imprisonment, and Johnson noted a timely appeal.
II
The issue presented in this appeal is whether the district court erred
when it sentenced Johnson as a career offender under the Sentencing
Guidelines. According to Johnson, he is not a career offender because
his 1996 New Jersey conviction for possession of a sawed-off shotgun
is not a crime of violence.2
Under the Sentencing Guidelines, a defendant should be sentenced
as a career offender if
(1) the defendant was at least eighteen years old at the time
the defendant committed the instant offense of conviction,
(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.
USSG § 4B1.1. In this case, there is no dispute that Johnson was at
least eighteen-years old when he committed the instant offense and
that the instant offense is a controlled substance felony offense. There
is also no dispute that Johnson has at least one prior felony conviction
for a controlled substance offense, the 1992 New Jersey conviction
for possession of a controlled substance with the intent to distribute
2Under New Jersey law, it is unlawful for a person to knowingly pos-
sess a sawed-off shotgun. N.J. Stat. Ann. § 2C:39-3(b). Conviction under
this section carries a sentence of three to five years. N.J. Stat. Ann.
§ 2C:43-6(a)(3).
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within 1,000 feet of a school. Accordingly, the only remaining ques-
tion in the case is whether Johnson’s 1996 New Jersey conviction for
possession of a sawed-off shotgun is a crime of violence under the
Sentencing Guidelines.
A "crime of violence" is defined by the Sentencing Guidelines as
any offense under federal or state law, punishable by impris-
onment for a term exceeding one year, that—
(1) has an element the use, attempted use, or
threatened use of physical force against the
person of another, or
(2) is burglary of a dwelling, arson, or extortion,
involves use of explosives, or otherwise
involves conduct that presents a serious
potential risk of physical injury to another.
Id. § 4B1.2(a).3 The commentary to USSG § 4B1.2 enumerates cer-
tain offenses that are crimes of violence and explains that
[o]ther offenses are . . . "crimes of violence" if (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 (i.e., expressly charged) in the count of
which the defendant was convicted . . ., by its nature,
presented a serious potential risk of physical injury to
another.
Id. § 4B1.2, comment. (n.1).
Possession of a sawed-off shotgun is not one of the offenses enu-
merated in USSG § 4B1.2(a)(2) or the accompanying commentary.
Moreover, this offense does not contain as an element the use,
3As noted in the previous footnote, under New Jersey law possession
of a sawed-off shotgun is a crime punishable by imprisonment for a term
exceeding one year.
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attempted use, or threatened use of physical force.4 Therefore, posses-
sion of a sawed-off shotgun is a crime of violence only if it "other-
wise involves conduct that presents a serious potential risk of physical
injury to another." Id. § 4B1.2(a)(2).
The Sentencing Guidelines’ commentary emphasizes that in deter-
mining "whether an offense is a crime of violence . . . the offense of
conviction (i.e., the conduct of which the defendant was convicted)
is the focus of the inquiry." Id. § 4B1.2, comment. (n.2). Thus, the
Sentencing Guidelines prohibit "a wideranging inquiry into the spe-
cific circumstances surrounding a conviction" in determining whether
an offense is a crime of violence. United States v. Johnson, 953 F.2d
110, 113 (4th Cir. 1991). Consistent with the limitations imposed by
the Sentencing Guidelines on any factual inquiry, we have stated that:
[I]n assessing whether a particular offense satisfies the "oth-
erwise clause" of [USSG § 4B1.2(a)(2)], a sentencing court
must confine its factual inquiry to those facts charged in the
indictment. . . . If the sentencing court cannot glean the cir-
cumstances surrounding the defendant’s commission of a
crime from the indictment, the question for the sentencing
court becomes whether that crime, in the abstract, involves
conduct that presents a serious potential risk of physical
injury to another.
4We have held that when the elements of an offense indicate that it
could be committed in two ways, one of which requires a finding that
physical force was used and the other of which does not, it is appropriate
for a court to look beyond the fact of conviction and the elements of the
offense to the charging papers and jury instructions in deciding whether
an offense constitutes a crime of violence. United States v. Coleman, 158
F.3d 199, 202 (4th Cir. 1998) (en banc). In this case, the elements of pos-
session of a sawed-off shotgun contain no ambiguity that would permit
us to look beyond those elements in determining whether that offense is
a crime of violence. Cf. United States v. Martin, 215 F.3d 470, 472 n.2
(4th Cir. 2000) (holding that the elements of the federal offense of bank
larceny contain no ambiguity which would allow the court to look
beyond the elements of the offense in determining whether bank larceny
constitutes a crime of violence).
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United States v. Dickerson, 77 F.3d 774, 776 (4th Cir. 1996) (citations
and internal quotation marks omitted). Thus, under Dickerson, a two-
part inquiry is required to determine whether an offense is a crime of
violence under the "otherwise clause." Martin, 215 F.3d at 473. First,
we consider the indictment pertaining to the offense of which the
defendant was convicted. Id. If that effort is unavailing, we consider
whether the offense of conviction is a crime of violence in the
abstract. Id.
The indictment charging Johnson with possession of a sawed-off
shotgun is not contained in the record; therefore, we cannot conduct
the first inquiry under Dickerson. Because we cannot conclude from
the indictment that Johnson’s 1996 New Jersey conviction for posses-
sion of a sawed-off shotgun is a crime of violence, it is necessary to
proceed to the second part of the Dickerson inquiry, whether posses-
sion of a sawed-off shotgun is, in the abstract, a crime of violence.
To constitute a crime of violence in the abstract "most, if not all,
instances of an offense should involve a serious potential risk of
injury." Martin, 215 F.3d at 475. When most instances of an offense
involve a serious potential risk of injury, we have found the offense
to be a crime of violence or a violent felony.5 See United States v.
Hairston, 71 F.3d 115, 118 (4th Cir. 1995) (holding that escape from
custody is a violent felony, relying on "the chance that [even] in the
case of an escape by stealth, the escapee will be intentionally or unin-
tentionally interrupted by another" creating the possibility that "the
escapee [will] choose to dispel the interference by means of physical
force"); see also Dickerson, 77 F.3d at 777 (relying on Hairston and
holding that the offense of attempted escape from custody is a crime
of violence because the offense "presents at least as much risk of
physical injury to another as a successful escape"); United States v.
Mobley, 40 F.3d 688, 696 (4th Cir. 1994) (holding that pickpocketing
is a violent felony because of the likelihood of confrontation); United
5The term "violent felony" is defined in 18 U.S.C. § 924(e), which pro-
vides for an enhancement of the sentence of certain defendants convicted
of violating 18 U.S.C. § 922(g). Since the language in USSG § 4B1.2(a)
is almost identical to the language in § 924(e)(2)(B), our reasoning
regarding the meaning of "violent felony" is relevant to determining the
meaning of "crime of violence." Martin, 215 F.3d at 474 n.4.
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States v. Custis, 988 F.2d 1355, 1363-64 (4th Cir. 1993) (attempted
breaking and entering of a dwelling constitutes a violent felony
because of the substantial risk of confrontation).
In contrast, when most instances of an offense do not involve a
serious potential risk of injury, we have declined to find the offense
to be a crime of violence. For example, we have held that possession
of a firearm by a convicted felon is not a crime of violence because
the "danger inherent in the mere possession of a firearm is, in many
cases, too highly attenuated to qualify the offense as a per se ‘crime
of violence.’" Johnson, 953 F.2d at 115; see also USSG § 4B1.2,
comment. (n.1) ("‘Crime of violence’ does not include the offense of
unlawful possession of a firearm by a felon."). Recently, in Martin,
we concluded that bank larceny is not a crime of violence. 215 F.3d
at 475. In that case, we reasoned that the "vast array of means of com-
mitting bank larceny that pose no risk of physical injury to another,
let alone a serious one," precluded a finding that bank larceny is a
crime of violence. Id.
Our research reveals that three of our sister circuits have concluded
that possession of a sawed-off shotgun constitutes a crime of vio-
lence, United States v. Brazeau, 237 F.3d 842, 845 (7th Cir. 2001);
United States v. Allegree, 175 F.3d 648, 651 (8th Cir.), cert. denied,
528 U.S. 958 (1999); United States v. Hayes, 7 F.3d 144, 145 (9th
Cir. 1993), and one has concluded that possession of a sawed-off
shotgun constitutes a violent felony under § 924(e), United States v.
Fortes, 141 F.3d 1, 6-8 (1st Cir. 1998). These courts have reasoned
that, unlike the possession of a handgun or a shotgun, the possession
of a sawed-off shotgun always presents a serious potential risk of
physical injury to another. Brazeau, 237 F.3d at 845 (possession of
a sawed-off shotgun always creates a serious potential risk of physical
injury to another); Allegree, 175 F.3d at 651 (because sawed-off shot-
guns are "inherently dangerous and lack usefulness except for violent
and criminal purposes," possession of a sawed-off shotgun involves
conduct that presents a serious potential risk of physical injury);
Hayes, 7 F.3d at 145 (possession of a sawed-off shotgun is a crime
of violence because "sawed-off shotguns are inherently dangerous,
lack usefulness except for violent and criminal purposes and their
possession involves the substantial risk of improper physical force");
see also Fortes, 141 F.3d at 7-8 (concluding that possession of a
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sawed-off shotgun is a violent felony because the offense presents a
serious potential risk of physical injury to another).
While acknowledging the existence of this precedent, Johnson
argues that possession of a sawed-off shotgun is not a crime of vio-
lence. In support, Johnson directs our attention to our decision in
Johnson and Application Note 1 to USSG § 4B1.2, both of which
support the proposition that the crime of possession of a firearm by
a felon is not a crime of violence.
Johnson’s reliance on our decision in Johnson and Application
Note 1 to USSG § 4B1.2 is misplaced. The authorities cited by John-
son pertain to the crime of possession of a firearm by a felon and have
nothing to do with the markedly different crime of possession of a
sawed-off shotgun. The crime involved in this case requires the court
to consider whether the possession of a certain type of weapon creates
a serious potential risk of physical injury to another. The type of
weapon possessed is not considered in determining whether the crime
of possession of a firearm by a felon is a crime of violence. This criti-
cal fact distinguishes this case from the authorities relied upon by
Johnson. Allegree, 175 F.3d at 651 ("The reason [the defendant’s]
conviction for possession of [a sawed-off shotgun] counts as a crime
of violence is because of the type of weapon involved. This distin-
guishes his offense from the simple possession of a firearm by a
felon."); cf. United States v. Huffhines, 967 F.2d 314, 321 (9th Cir.
1992) (holding that the crime of possession of a silencer is a crime
of violence because, like a sawed-off shotgun, a silencer "is practi-
cally of no use except for a criminal purpose"). In short, we agree
with the First, Seventh, and Eighth Circuits that the crime of posses-
sion of a sawed-off shotgun is a crime of violence under USSG
§ 4B1.1 because the possession of such a weapon always creates a
serious potential risk of physical injury to another.
III
For the reasons stated herein, the judgment of the district court is
affirmed.
AFFIRMED
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