United States of America v. Demetrius Wynn

*W illiam W Schwarzer, Senior United States District Judge for the
Northern District of California, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0118P (6th Cir.)
File Name: 04a0118p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DEMETRIUS WYNN,
Defendant-Appellant.
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No. 02-4354
Appeal from the United States District Court
for the Northern District of Ohio at Akron.
No. 02-00232—James Gwin, District Judge.
Argued: March 18, 2004
Decided and Filed: April 23, 2004
Before: COLE and GILMAN, Circuit Judges;
SCHWARZER, Senior District Judge.*
2 United States v. Wynn No. 02-4354
_________________
COUNSEL
ARGUED: Charles E. Fleming, FEDERAL PUBLIC
DEFENDER’S OFFICE, Cleveland, Ohio, for Appellant.
Duane J. Deskins, ASSISTANT UNITED STATES
ATTORNEY, Cleveland, Ohio, for Appellee. ON BRIEF:
Charles E. Fleming, FEDERAL PUBLIC DEFENDER’S
OFFICE, Cleveland, Ohio, for Appellant. Duane J. Deskins,
ASSISTANT UNITED STATES ATTORNEY, Cleveland,
Ohio, for Appellee.
_________________
OPINION
_________________
RONALD LEE GILMAN, Circuit Judge. In sentencing
Demetrius Wynn under U.S. Sentencing Guidelines § 2K2.1,
the district court determined that a two-level enhancement
was warranted because Wynn possessed a destructive device.
Wynn claims that his sawed-off shotgun does not qualify as
such a device. To the contrary, we conclude that because
Wynn’s sawed-off shotgun is a weapon that will expel a
projectile by the action of an explosive and has a barrel with
a bore of more than one-half inch in diameter, it is a
destructive device as defined by Application Note 4 to
§ 2K2.1. We therefore AFFIRM the judgment of the district
court.
I. BACKGROUND
Wynn pled guilty to being a felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g)(1), and to
possessing an unregistered sawed-off shotgun, in violation of
26 U.S.C. § 5861(d). The weapon in question was a .20
gauge shotgun with a modified overall length of 19.5 inches
and a barrel length of 12.5 inches. As part of his plea

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No. 02-4354 United States v. Wynn 3
agreement, Wynn admitted that the sawed-off shotgun was a
firearm as defined in 26 U.S.C. § 5845(a)(1) and (2).
U.S. Sentencing Guidelines § 2K2.1 establishes the
sentencing range for Wynn’s convictions. Wynn had two
prior felony convictions for crimes of violence, which caused
his Base Offense Level to be set at 26. The Presentence
Report further determined that a two-level enhancement was
warranted because Wynn’s offense involved a destructive
device as described in 26 U.S.C. 5845(a). Application Note
11 to § 2K2.1 permits what would otherwise appear to be
“double counting” by expressly providing that “a defendant
whose offense involves a destructive device receives both the
base offense level from the subsection applicable to a firearm
listed in 26 U.S.C. § 5845(a) . . . , and a two-level
enhancement under subsection (b)(3).” U.S. Sentencing
Guidelines Manual § 2K2.1, cmt. n.11 (2002).
Wynn filed a Sentencing Memorandum objecting to the
two-level increase for possession of a destructive device. He
argued that the definition of a destructive device in
Application Note 4 to § 2K2.1 does not encompass a sawed-
off shotgun. First, he suggested that Application Note 4's
language that a destructive device “is a type of firearm listed
in 26 U.S.C. § 5845(a)” means that a destructive device is
simply “one type” of firearm listed in that provision. The
government, on the other hand, interprets the same phrase to
mean that “all types” of firearms listed in § 5845(a) are
destructive devices. Second, Wynn argued that because
18 U.S.C. § 924(c)(1)(B) imposes vastly different penalties
on defendants who possess a destructive device as opposed to
a sawed-off shotgun while committing a violent or drug-
trafficking crime, the two items should not be treated as
equivalents under § 2K2.1. The government responds by
questioning the relevance of the penalty scheme under
§ 924(c)(1)(B) to the Sentencing Guideline in question.
At sentencing, the district court raised an additional point.
The court found that the definition of a destructive device in
4 United States v. Wynn No. 02-4354
26 U.S.C. § 5845(f) was “broad enough to include a sawed-
off shotgun.” Specifically, the court noted that a shotgun with
a bore of more than a half inch in diameter is by definition a
destructive device under § 5845(f), unless it is the kind of
shotgun appropriate for sporting purposes. “And in this
case,” the court stated, “the shotgun had a bore of more than
a half-inch diameter.” Sawed-off shotguns, moreover, are not
used for sporting purposes.
The district court ultimately applied the two-level
enhancement because it agreed with the government’s
interpretation that any firearm listed in § 5845(a), such as a
sawed-off shotgun, is a destructive device. For further
support, the court reiterated that the definition of destructive
device under § 5845(f) “gives all indication that this [sawed-
off shotgun] should be considered to be a destructive device.”
This timely appeal followed.
II. ANALYSIS
A. Standard of review
“In reviewing a sentence imposed under the Sentencing
Guidelines, we are required by statute to ‘accept the findings
of fact of the district court unless they are clearly erroneous
and to give due deference to the district court’s application of
the guidelines to the facts.’” United States v. Horn, 255 F.3d
610, 612 (6th Cir. 2004) (quoting 18 U.S.C. § 3742(e)).
We “must follow the clear and unambiguous language of
the Sentencing Guidelines when interpreting and applying
specific provisions.” United States v. Young, 266 F.3d 468,
484 (6th Cir. 2001). The “[s]entencing guidelines should be
read as written,” United States v. Cobb, 250 F.3d 346, 349
(6th Cir. 2001), and the “commentary . . . is authoritative
unless it violates the Constitution or a federal statute, or is
inconsistent with, or a plainly erroneous reading of, that
guideline.” United States v. Lewis, 156 F.3d 656, 660 (6th
Cir. 1998) (citation and quotation marks omitted).

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No. 02-4354 United States v. Wynn 5
B. Interpretation of the term “destructive device”
1. Application Note 4, Sentencing Guidelines § 2K2.1
A defendant convicted of unlawfully possessing a firearm
is potentially subject to Sentencing Guidelines § 2K2.1(b)(3),
which provides for a two-level enhancement to the base
offense level if the offense involved a destructive device.
Application Note 4 defines a “destructive device” in the
following manner:
“Destructive device” is a type of firearm listed in 26
U.S.C. § 5845(a), and includes any explosive,
incendiary, or poison gas - - (i) bomb, (ii) grenade, (iii)
rocket having a propellant charge of more than four
ounces, (iv) missile having an explosive or incendiary
charge of more than one-quarter ounce, (v) mine, or (vi)
device similar to any of the devices described in the
preceding clauses; any type of weapon which will, or
which may be readily converted to, expel a projectile by
the action of an explosive or other propellant, and which
has any barrel with a bore of more than one-half inch in
diameter; or any combination of parts either designed or
intended for use in converting any device into any
destructive device listed above. For a more detailed
definition, refer to 26 U.S.C. § 5845(f).
U.S. Sentencing Guidelines Manual § 2K2.1, cmt. n.4 (2002)
(Emphasis added). Section 5845(a) provides in turn:
The term “firearm” means (1) a shotgun having a barrel
or barrels of less than 18 inches in length; (2) a weapon
made from a shotgun if such weapon as modified has an
overall length of less than 26 inches or a barrel or barrels
of less than 18 inches in length; (3) a rifle . . . ; (4) a
weapon made from a rifle . . . ; (5) any other weapon, as
defined in subsection (e); (6) a machine gun; (7) any
silencer . . . ; and (8) a destructive device.
6 United States v. Wynn No. 02-4354
(Emphasis added.)
Wynn does not dispute that § 5845(a)(1) and (2) cover the
shotgun that was in his possession. He argues instead that
when Application Note 4 states that a destructive device “is
a type of firearm listed in 26 U.S.C. § 5845(a),” this simply
means that a destructive device is one type of firearm listed in
§ 5845(a), i.e., a destructive device under subsection (8).
Wynn points out that if a sawed-off shotgun is considered a
destructive device, then it would be redundant to describe
shotguns and modified shotguns in (a)(1) and (a)(2),
respectively, and still list “destructive devices” as a separate
category in (a)(8).
In contrast, the government reads Application Note 4's
phrase “is a type of firearm listed in 26 U.S.C. § 5845(a)” as
meaning that all firearms listed in § 5845(a) are destructive
devices. Because Wynn admits that his shotgun is covered by
§ 5845(a)(1) and (2), the government contends that the
shotgun is by definition a destructive device. We find this
interpretation awkward for two reasons. First, the
government’s reading is circular: if the term “destructive
device” applies to all of the firearms listed in § 5845(a),
which includes the category “a destructive device” under
subsection (a)(8), then this leads us back to where we started.
Second, if everything listed in § 5845(a) is a destructive
device, then why are the examples in Application Note 4
(e.g., a bomb, grenade, rocket, etc.) exclusively drawn from
the comprehensive definition of a destructive device found in
§ 5845(f)? Why are the other weapons listed in § 5845(a)
(e.g., a sawed-off shotgun, machine gun, silencer, etc.) not
given as examples as well.
We have found no satisfactory answers to these questions,
and therefore discount the government’s interpretation of
Application Note 4. On the other hand, for the reasons set
forth in Part II.B.3. below, we conclude that Wynn’s
alternative interpretation provides him with no basis for relief.

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No. 02-4354 United States v. Wynn 7
2. Relevance of 18 U.S.C. §§ 921(a) and 924(c)
Wynn also points to the statutory definitions and penalties
set forth in Title 18 of the United States Code to support his
theory that a sawed-off shotgun should not be considered a
destructive device for the purposes of Sentencing Guidelines
§ 2K2.1. A person convicted of a crime of violence or a drug
trafficking crime, who possesses a firearm when committing
the offense, is subject to the following penalties under
§ 924(c)(1):
(B) If the firearm possessed by a person
(i) is a short-barreled rifle, short-barreled shotgun, or
semiautomatic assault weapon, the person shall be
sentenced to a term of imprisonment of not less than 10
years; or
(ii) is a machine gun or a destructive device, or is
equipped with a firearm silencer or firearm muffler, the
person shall be sentenced to a term of imprisonment of
not less than 30 years.
18 U.S.C. § 924(c)(1)(B) (Emphasis added.) This court has
recognized that § 924(c) demonstrates Congress’s intent to
punish defendants using destructive devices more severely
than those using sawed-off shotguns. United States v. Sims,
975 F.2d 1225, 1236 (6th Cir. 1992) (observing that the
penalty scheme presumably reflects Congress’s belief that
machine guns and explosive devices are more dangerous than
short-barreled rifles and sawed-off shotguns).
Whether a defendant used a “destructive device” for the
purposes of § 924(c) is determined by the definition of that
term in 18 U.S.C. § 921(a)(4), which is identical to the
definition found in 26 U.S.C. § 5845 (f). According to
§ 921(a)(4), a “destructive device” means:
8 United States v. Wynn No. 02-4354
(A) any explosive, incendiary, or poison gas—(i) bomb,
(ii) grenade, (iii) rocket . . . , (iv) missile . . . , (v) mine,
or [similar device];
(B) any type of weapon . . . by whatever name known
which will, or which may be readily converted to, expel
a projectile by the action of an explosive or other
propellant, and which has any barrel with a bore of more
than one-half inch in diameter[.]
Wynn therefore argues that because Congress’s penalty
scheme in § 924(c) clearly differentiates between a
destructive device and a sawed-off shotgun, the Sentencing
Guidelines § 2K2.1 should do the same.
We acknowledge that Congress intended, at least for the
purposes of Title 18, to differentiate between a destructive
device and a sawed-off shotgun. But “when two statutes
conflict to some degree they should be read together to give
effect to each if that can be done. . . .” Muller v. Lujan, 928
F.2d 207, 211 (6th Cir. 1991). Perhaps Congress believed
that there was no reason to differentiate between failing to
register a sawed-off shotgun and, say, a grenade. Section
5861(d), after all, punishes the failure to register such items,
and the maximum statutory penalty for the violation of this
provision is 10 years’ imprisonment. On the other hand, in 18
U.S.C. § 924(c), Congress presumably concluded that
different minimum penalties were appropriate—10 years
versus 30 years—for individuals who possess a firearm while
committing violent or drug crimes, depending on whether
they had a sawed-off shotgun as opposed to a grenade.
We see no need, however, to speculate further about the
reason for the differential treatment of these items in Title 26
versus Title 18. Wynn was convicted of violating 26 U.S.C.
§ 5861(d), not 18 U.S.C. § 924(c). Sentencing Guidelines
§ 2K2.1 establishes the sentencing range for violations of
26 U.S.C. § 5861(d), and we must apply the definition of a
destructive device as found in Application Note 4. See United

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No. 02-4354 United States v. Wynn 9
States v. Jones, 107 F.3d 1147, 1164 n.16 (6th Cir. 1997)
(commenting that we should “confine our inquiry to the
Guidelines themselves and not [] venture out on a sojourn
throughout the United States Code”). The inconsistency, in
other words, is noted but not deemed determinative.
3. The definition of destructive device in 26 U.S.C.
§ 5845(f)
Unlike the district court, we think that Wynn’s construction
of Application Note 4's opening phrase is plausible, but we do
not find it dispositive. We find more compelling the district
court’s observation that the definition of destructive device,
both in Application Note 4 and in 26 U.S.C. § 5845(f), is
broad enough to include a sawed-off shotgun for a different
reason. To recap, Application Note 4 states in part that a
destructive device
includes . . . any type of weapon, which will, or which
may be readily converted to, expel a projectile by the
action of an explosive or other propellant, and which has
any barrel with a bore of more than one-half inch in
diameter; or any combination of parts either designed or
intended for use in converting any device into any
destructive device listed above. For a more detailed
definition, refer to 26 U.S.C. § 5845(f).
(Emphasis added.) The detailed definition at 26 U.S.C.
§ 5845(f) in turn provides:
The term destructive device means (1) any explosive,
incendiary, or poison gas (A) bomb, (B) grenade, (C)
rocket . . . , (D) missile . . . , (E) mine, or (F) similar
device; (2) any type of weapon by whatever name known
which will, or which may readily converted to, expel a
projectile by the action of an explosive or other
propellant, the barrel or barrels of which have a bore of
more than one-half inch in diameter, except a shotgun or
shotgun shell which the Secretary finds is generally
10 United States v. Wynn No. 02-4354
recognized as particularly suitable for sporting
purposes[.]
A weapon that expels a projectile by the action of an
explosive fairly describes a firearm. A sawed-off shotgun
certainly is designed to expel a projectile (lead pellets) by
means of an explosive or other propellant (gunpowder). The
district court stated at the sentencing hearing that Wynn’s
shotgun had a bore of more than a half-inch diameter, thus
making his weapon a destructive device under the language
of both Application Note 4 and the “detailed definition”
found in 26 U.S.C. § 5845(f).
Our conclusion that Congress intended to include sawed-off
shotguns within the definition of a destructive device is also
supported by the legislative history of the Gun Control Act of
1968, 18 U.S.C. §§ 921-950. Congress passed the Act to
amend Title 18's regulations on the transfer and sale of
firearms. Conf. Rep. No. 90-1956 (1968), reprinted in 1968
U.S.C.C.A.N. 4426. The Gun Control Act also revised the
National Firearms Act, 26 U.S.C. §§ 5801-5880, “to cover
additional weapons, most notably destructive devices.” 1968
U.S.C.C.A.N. at 4434. Because, as discussed above, the
definition of a destructive device is identical in both
18 U.S.C. § 921(a)(4) and 26 U.S.C. § 5845(f), the legislative
history from the Gun Control Act sheds light on Congress’s
intent in formulating these matching provisions. See United
States v. Posnjak, 457 F.2d 1110, 1113, 1114 (2d Cir. 1972)
(noting that the Gun Control Act included “destructive
devices” for the first time in Title 18, somewhat redefined
“destructive devices” for Title 26, and that the definitions
were identical).
In the Conference Report on the Gun Control Act, the
House managers described the compromise reached on the
definition of destructive device for Title 18:
The House bill defined the term “destructive device” to
mean any explosive, incendiary, or poison gas bomb,

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No. 02-4354 United States v. Wynn 11
grenade, mine, rocket, missile or similar device and to
include any type of weapon which will or is designed to
or may be readily converted to expel a projectile by the
action of any explosive and which has any barrel with a
bore of one-half inch or more in diameter. It excluded
from such term the following: Any device which is not
used, or which is not intended to be used, as a weapon,
any shotgun other than a short-barreled shotgun, any
nonautomatic rifle (other than a short-barreled rifle)
generally recognized or particularly suitable for hunting
big game. . . .
1968 U.S.C.C.A.N. at 4427 (Emphasis added.) The House
definition explicitly states that short-barreled shotguns are not
excluded from the definition of a destructive device. In other
words, they are considered destructive devices. Congress
adopted the Senate amendment’s definition of a destructive
device, but stated that it was “essentially the same as the
House bill.” Id. The Senate changed the language describing
the exceptions to what was considered a destructive device.
Under the Senate’s formulation,
excluded from the definition are shotguns and shotgun
shells found by the Secretary to be suitable for sporting
purposes, and any device which the Secretary finds is an
antique or a rifle which the owner intends to use solely
for sporting purposes. Further, the Senate amendment
does not specifically exclude the nonautomatic rifles
excluded by the House bill.
Id.
In sum, the only types of firearms that are not considered
destructive devices for the purposes of U.S. Sentencing
Guidelines § 2K2.1 are those that are used “solely for
sporting, recreational, or cultural purposes,” 18 U.S.C.
§ 921(a)(4) and 26 U.S.C. § 5845(f)(3), or, by necessary
inference, ones that have a bore of one-half inch or less in
12 United States v. Wynn No. 02-4354
diameter. 18 U.S.C. § 921(a)(4)(B) and 26 U.S.C.
§ 5845(f)(2).
We have found only one case, United States v. Demko, 216
F.3d 1049 (Fed. Cir. 2000), where the parties actually
litigated whether a shotgun fell within § 5845(f)(2)’s
definition of destructive device. The defendants in Demko
contended that the Bureau of Alcohol, Tobacco and Firearms
(ATF) had improperly applied the term to a Striker-12
shotgun. They argued that “the qualifying clause of the
statute ‘which the Secretary finds is generally recognized as
particularly suitable for sporting purposes’ should be
interpreted to only modify the term ‘shotgun shell’ and thus
exclude the word ‘shotgun’ from the definition of ‘destructive
device.’” Id. at 1051.
The Federal Circuit rejected this argument because “the
plain language of § 5845(f)(2) indicates that the qualifying
clause modifies both ‘shotgun’ and ‘shotgun shell.’” Id. at
1052. To interpret the clause as modifying only “shotgun
shell” would, moreover, lead to the absurd result that
shotguns are not destructive devices, but that all shotgun
shells (except ones used for sporting purposes) are. Id. at
1053. The Demko court therefore held that the ATF properly
determined that the Striker-12 shotgun was a destructive
device because “the gun is a military-type shotgun, rather
than one suitable for sporting purposes.” Id. at 1051. The
Eighth Circuit has also held that a sawed-off shotgun is a
destructive device, albeit without any analysis. See United
States v. Lee, 351 F.3d 350, 351 n.1 (8th Cir. 2003)
(summarily affirming the district court’s conclusion that “an
unregistered sawed-off . . . shotgun[] meets the statutory
definition of destructive device” as found in 26 U.S.C.
§ 5845(f)). We reach the same conclusion regarding Wynn’s
sawed-off shotgun because it is a destructive device as
defined by Application Note 4 to U.S. Sentencing Guidelines
§ 2K2.1.

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No. 02-4354 United States v. Wynn 13
III. CONCLUSION
For all of the reasons set forth above, we AFFIRM the
judgment of the district court.

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