United States of America v. Tad Michaud

United States Court of Appeals
For the First Circuit
No. 00-1666
UNITED STATES OF AMERICA,
Appellee,
v.
TAD MICHAUD,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Boudin, Circuit Judge,
Bownes, Senior Circuit Judge,
and Lynch, Circuit Judge.
F. Mark Terison, Senior Litigation Counsel, and Jay P.
McCloskey, United States Attorney, on brief, for appellee.
James S. Hewes on brief for appellant.
March 22, 2001

-- 1 of 9 --

-- 2 of 9 --

-3-
BOWNES, Senior Circuit Judge. Defendant-appellant Tad
Michaud pleaded guilty to five criminal counts arising from his
robbery of a convenience store. Because he used a short-
barreled shotgun during the crime, he was sentenced to the
statutory minimum of ten years’ imprisonment. 18 U.S.C. §§
921(a)(6), 924(c)(1). Michaud appeals from his sentence on the
ground that the weapon did not meet the measurement requirements
contained in section 921(a)(6). We affirm.
I. BACKGROUND
On the evening of July 21, 1999, Michaud entered an
Exxon convenience store in Westbrook, Maine, carrying a sawed-
off shotgun. He pointed the shotgun at the store’s attendant
and the attendant’s son, ordering them into a back room where a
safe was located. The attendant and his son resisted Michaud
and took the weapon away from him. They used the shotgun to
hold Michaud until the police arrived and arrested him.
On August 19, 1999, a federal grand jury returned a
five-count indictment against Michaud. He was charged with
obstructing commerce by attempting robbery in violation of 18
U.S.C. § 1951(a) (Count One); using and carrying a firearm
during a crime of violence in violation of 18 U.S.C. § 924(c)
(Count Two); possessing shotguns and a rifle as a convicted
felon in violation of 18 U.S.C. § 922(g) (Counts Three and

-- 3 of 9 --

1The weapons possession charges arose from Michaud’s use of
the sawed-off shotgun during the robbery as well as from
additional weapons discovered in his home in a subsequent
search.
-4-
Four); and possessing an unregistered firearm in violation of 26
U.S.C. § 5861(d) (Count Five).1 Michaud pleaded guilty to all
counts of the indictment.
At the sentencing hearing, Michaud contended that the
weapon he used during the robbery did not meet the statutory
requirements for a ten-year minimum sentence for using a short-
barreled shotgun, 18 U.S.C. § 921(a)(6). He also sought a
downward departure for “aberrant behavior.” See 18 U.S.C. §
3553(b); U.S.S.G. § 5K2.0 (permitting departure for certain
aggravating or mitigating circumstances that should result in
different sentence); United States v. Grandmaison, 77 F.3d 555,
560-61 (1st Cir. 1996) (applying U.S.S.G. § 5K2.0 to defendant’s
aberrant behavior). The district court rejected these
contentions and sentenced Michaud to 177 months' imprisonment:
57 months on Counts One, Three, Four and Five, to be served
concurrently, plus a consecutive sentence of 120 months on Count
Two. This appeal followed.
II. DISCUSSION
First, Michaud challenges the ten-year consecutive
sentence imposed on Count Two, renewing his argument that the

-- 4 of 9 --

2Congress considered criminals’ use of short-barreled
shotguns worthy of enhanced punishment because it is
particularly dangerous: shot scatters more widely from a short
barrel, thus killing indiscriminately, and a shortened shotgun
is easier to conceal and wield. United States v. Hall, 972 F.2d
67, 70 (4th Cir. 1992).
-5-
weapon he used during the robbery did not meet the statutory
definition of a short-barreled shotgun. 18 U.S.C. § 921(a)(6).
We review this question of statutory interpretation de novo.
United States v. Rostoff, 164 F.3d 63, 66 (1st Cir. 1999).
18 U.S.C. § 924(c)(1)(B)(i) mandates a ten-year
sentence for the use or carrying of a short-barreled shotgun
during a crime of violence.2 The statute defines a “shotgun” as:
a weapon designed or redesigned, made or
remade, and intended to be fired from the
shoulder and designed or redesigned and made
or remade to use the energy of an explosive
to force through a smooth bore either a
number of ball shot or a single projectile
for each single pull of the trigger.
Id. § 921(a)(5). As used in section 924(c)(1)(B)(i), the
statute defines a “short-barreled shotgun” as:
a shotgun having one or more barrels less
than eighteen inches in length and any
weapon made from a shotgun (whether by
alteration, modification or otherwise) if
such a weapon as modified has an overall
length of less than twenty-six inches.
Id. § 921(a)(6).
It is uncontested that the weapon Michaud used during
the robbery was a sawed-off shotgun with a barrel measuring

-- 5 of 9 --

-6-
twelve and one-quarter inches long and an overall length of
twenty-seven and one-quarter inches. When recovered by the
police, it was fully operational and test-fired normally.
At the sentencing hearing, after argument from the
prosecution and Michaud, the district court ruled:
I’m satisfied that Subsection (6) of
Subsection (a) of Section 921 gives two
alternative definitions, and that the weapon
here qualifies under the first alternative;
namely, it is a shotgun, having one or more
barrels less than 18 inches in length. And
that that alone satisfies the definition of
the statute. The fact that it obtained its
shorter length by modification does not
prevent it from qualifying under that part
of the definition, and I’m satisfied that
the [Fourth] Circuit decision in Hall says
nothing different, that in fact it supports
the conclusion I’m reaching.
Michaud contends that the two measurement requirements
contained at section 921(a)(6) should be read conjunctively due
to the use of the word “and” instead of “or.” Under this
theory, a weapon must have a barrel length of less than eighteen
inches and an overall length of less than twenty-six inches to
be a short-barreled shotgun. Because Michaud's sawed-off
shotgun satisfied only the barrel length requirement, he argues,
section 924(c)(1)(B)(i) cannot apply.
We disagree, and conclude that the district court’s
reading of the statute was correct. The plain language of 18
U.S.C. § 921(a)(6) includes within its definition of a

-- 6 of 9 --

-7-
short-barreled shotgun two categories of weapon: a shotgun with
a barrel of less than eighteen inches in length, and any weapon
made from a shotgun that has an overall length of less than
twenty-six inches. United States v. Hall, 972 F.2d 67, 70 (4th
Cir. 1992). Because Michaud’s shotgun satisfied the first
requirement, it is covered by the statute; it makes no
difference that it did not additionally fall into the second
category of weapons, i.e., those having an overall length of
less than twenty-six inches. See id.; United States v. Bandy,
239 F.3d 802, 806 (6th Cir. 2001) ("A barrel length of less than
18 inches brings the shotgun within the proscription of [section
921(a)(6)], regardless of the total length of the weapon.")
As the Fourth Circuit pointed out, the construction of
section 921(a)(6) supports this conclusion.
[If] Congress intended to punish the use of
only one, narrow subset of modified
shotguns--those with a barrel length of less
than eighteen inches and an overall length
of less than twenty-six inches--Congress
would have had absolutely no reason to
insert into the provision the second subject
category. Congress simply could have
declared that: "short barreled shotgun means
a shotgun having one or more barrels less
than eighteen inches in length and an
overall length of less than twenty-six
inches." Because Congress chose not to
structure the statute in this way, it is
evident on the face of the statute that it
is intended to proscribe the use of both
shotguns with a barrel length of less than
eighteen inches and other weapons made from

-- 7 of 9 --

3The government also contends that the legislative history
of section 921(a)(6) supports the disjunctive reading of the
language at issue. Because we conclude that the plain language
of the provision makes clear that a shotgun need only satisfy
one of the length requirements, we need not consider the
legislative history. See Telematics Int'l, Inc. v. NEMLC
Leasing Corp., 967 F.2d 703, 706 (1st Cir. 1992).
-8-
shotguns with an overall length of less than
twenty-six inches.
Hall, 972 F.2d at 70.
This interpretation is further buttressed by the
definition of a shotgun contained at section 921(a)(5). It
expressly includes weapons “designed or redesigned and made or
remade.” Hence, section 921(a)(6)’s definition of a
short-barreled shotgun as “a shotgun having one or more barrels
of less than eighteen inches in length” includes sawed-off
shotguns as well as unmodified shotguns.3
Additionally, Michaud contends that the district court
erred in declining to award a downward departure on the ground
that his criminal conduct was “aberrant behavior.” The court of
appeals has no jurisdiction, however, to review a district
court’s decision not to depart downward unless the district
court misunderstood its authority to do so. United States v.
Orlando-Figueroa, 229 F.3d 33, 49 (1st Cir. 2000). Michaud does
not contend, and the record does not reflect, any such
misunderstanding on the part of the district court.

-- 8 of 9 --

-9-
Accordingly, we may not review the district court’s rejection of
Michaud’s aberrant behavior argument.
Affirmed.

-- 9 of 9 --