United States v. 2006-01-23 | 04-10597 | USA VSERNA | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA, No. 04-10597
Plaintiff-Appellee, D.C. No.
v.  CR-04-00188-EJG
XAVIER SERNA, OPINION
Defendant-Appellant. 
Appeal from the United States District Court
for the Eastern District of California
Edward J. Garcia, District Judge, Presiding
Argued and Submitted
October 18, 2005—San Francisco, California
Filed January 23, 2006
Before: Alex Kozinski and Ferdinand F. Fernandez,
Circuit Judges, and Terry J. Hatter, Jr.,* District Judge.
Opinion by Judge Kozinski
*The Honorable Terry J. Hatter, Jr., Senior United States District Judge
for the Central District of California, sitting by designation.
909

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COUNSEL
Quin Denvir, Federal Defender, Sacramento, California, for
the defendant-appellant.
McGregor W. Scott, United States Attorney; Jason Hitt,
Assistant United States Attorney, Sacramento, California, for
the plaintiff-appellee.
OPINION
KOZINSKI, Circuit Judge:
We consider whether possession of an assault weapon in
violation of California Penal Code section 12280(b) is a
“crime of violence” under the federal Sentencing Guidelines.
911 UNITED STATES v. SERNA

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Facts
Serna pleaded guilty to being a felon in possession of a
firearm. See 18 U.S.C. § 922(g)(1). It wasn’t the first time
Serna had illegally possessed a firearm—he had previously
pleaded guilty to violating California Penal Code § 12280(b),
which outlaws possession of “assault weapons.”1 The district
court concluded that Serna’s state-court conviction was a
“crime of violence.” See U.S.S.G. § 2K2.1(a)(4)(A).2 This
finding had the effect of increasing the sentencing range for
Serna’s federal conviction from 27-33 months to 46-57
months. The district court gave Serna a 46 month sentence,
and Serna appeals.
Analysis
[1] Section 4B1.2(a) of the Sentencing Guidelines defines
“crime of violence” as “any offense under federal or state law,
punishable by imprisonment for a term exceeding one year,
that . . . has as an element the use, attempted use, or threat-
ened use of physical force against the person of another, or
. . . involves conduct that presents a serious potential risk of
physical injury to another.” (emphasis added). California pun-
ishes felony possession of an assault weapon by imprisonment
for a term exceeding one year. See Cal. Penal Code
§ 12280(b); In re Jorge M., 4 P.3d 297, 305-06 (Cal. 2000).
But merely possessing a weapon doesn’t involve the use,
attempted use or threatened use of physical force, so Serna’s
prior conviction qualifies as a crime of violence only if simple
possession of an assault weapon “presents a serious potential
risk of physical injury to another.”
1California’s definition of “assault weapons” includes some semiauto-
matic rifles, pistols and shotguns, and any shotgun with a revolving cylin-
der. See Cal. Penal Code § 12276.1.
2All references to the Sentencing Guidelines are to the November 5,
2003, version.
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[2] In determining whether a prior conviction supports a
sentence enhancement under federal law, we normally look to
both the statutory definition of the crime and to the actual
conduct charged. United States v. Young, 990 F.2d 469, 472
(9th Cir. 1993). However, the record here does not contain the
charging papers for Serna’s prior conviction. We are therefore
left only with the fact that Serna was convicted of violating
section 12280(b).
Serna’s prior conviction was for possession of an object.
Almost any object—a car, a golf club, even a pair of nail
clippers—can be used to cause physical injury. See, e.g., State
v. McKnight, 19 P.3d 64, 65 (Idaho Ct. App. 2000) (defendant
beat victim with a golf club until he was bleeding profusely
and then ran over him five times with a car); State v.
Whitaker, 225 S.E.2d 129, 131 (N.C. Ct. App. 1976) (jury
could find nail clippers to be a deadly weapon). Were an
object’s potential for causing physical injury enough to render
illegal possession thereof a crime of violence, almost all pos-
sessory crimes would be crimes of violence; the Guidelines
thus focus on whether the crime presents a “serious potential
risk” of physical injury.
Our caselaw and the Sentencing Guidelines instruct that
being a felon in possession of a firearm is not a crime of vio-
lence. See United States v. Sahakian, 965 F.2d 740, 742 (9th
Cir. 1992); U.S.S.G. § 4B1.2 app. n.1. Since illegal posses-
sion of an ordinary firearm isn’t a crime of violence, we know
that possessing an object designed to be lethal does not alone
pose a “serious potential risk” of physical injury. Although
most uses of a firearm are violent and destructive, not all vio-
lence and destruction are illegitimate: Hunting, target shoot-
ing and self-defense, though inherently violent and
destructive, are legitimate and legal. When considering the
risk of physical injury then, we look only to the illegitimate
and unlawful uses and exclude legitimate uses of the item,
even though they could result in physical injury. So long as
the item in question has substantial legitimate uses, its mere
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possession cannot, without more, constitute a crime of vio-
lence.
On the other hand, if we know that an object has no lawful
uses, we can presume that someone who possesses it inten-
tionally does so for the purpose of using it illicitly. And, if the
universe of uses for such an object is largely confined to ille-
gitimate violence, we can infer that the object will be used to
intimidate or inflict physical injury during the course of an
unlawful transaction. We have thus held that illegal posses-
sion of such a weapon—like a silencer or a sawed-off shotgun
—is a crime of violence. See United States v. Delaney, 427
F.3d 1224, 1226 (9th Cir. 2005); United States v. Hayes, 7
F.3d 144, 145 (9th Cir. 1993); United States v. Huffhines, 967
F.2d 314, 320-21 (9th Cir. 1992). What distinguishes silencers
or sawed-off shotguns from other dangerous firearms isn’t the
amount of injury they’re capable of inflicting—there are
many weapons that can cause a lot more injury than a
silencer. What makes silencers and sawed-off shotguns differ-
ent from ordinary weapons is that they have few, if any, legit-
imate uses. Unlike an ordinary firearm, neither is likely to
serve any sporting or self-defense purpose. Thus, we have
held that they “are inherently dangerous, lack usefulness
except for violent and criminal purposes and their possession
involves the substantia risk of improper physical force.”
Delaney, 427 F.3d at 1226 (quoting Hayes, 7 F.3d at 145)
(internal quotation marks omitted). We must determine, there-
fore, whether an assault weapon is more like an ordinary fire-
arm, or more like a silencer or sawed-off shotgun.
Congress requires registration of any silencer, sawed-off
shotgun or similar firearm. See 26 U.S.C. §§ 5841, 5845(a).3
3For purposes of the registration requirement, Congress defines as “fire-
arms” many weapons that are not technically firearms, such as silencers,
bombs, grenades and mines. “In short, the term [firearm] as used in the
Act bears little if any correspondence to that in common usage, much as
though the word ‘animal’ were defined in some supposititious National
Zoo Act to exclude all mammals, reptiles and birds except lions and tigers,
but to include freight trains, teddy bears, feather-boas and halltrees.”
United States v. Anderson, 885 F.2d 1248, 1251 (5th Cir. 1989) (en banc).
914 UNITED STATES v. SERNA

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Failure to register a listed firearm is a crime punishable by up
to ten years is prison. See 26 U.S.C. §§ 5861(d), 5871; Staples
v. United States, 511 U.S. 600, 602-03 (1994). The registra-
tion requirement reflects Congress’s determination that cer-
tain weapons are almost certain to be used for unlawful
purposes: “[T]he primary reason that unregistered possession
of these particular weapons is a crime is the virtual inevitabil-
ity that such possession will result in violence.” United States
v. Jennings, 195 F.3d 795, 799 (5th Cir. 1999). As the Sev-
enth Circuit put it, “most firearms do not have to be registered
—only those that Congress found to be inherently dangerous.
If the weapon is not so labeled, mere possession by a felon is
not a crime of violence.” United States v. Brazeau, 237 F.3d
842, 845 (7th Cir. 2001). Congress has never imposed a blan-
ket registration requirement on semiautomatic weapons, sug-
gesting that they have lawful uses and are less likely to lead
to unlawful violence than sawed-off shotguns and silencers.
[3] When Serna was convicted of possession of an assault
weapon in 2002, possession of some semiautomatic weapons
was a federal crime—but no longer. See Violent Crime Con-
trol and Law Enforcement Act of 1994, Pub. L. No. 103-322,
§§ 110102, 110105, 108 Stat. 1796, 1996-98, 2000 (banning
assault weapons for ten years). Thus, non-felons can now
freely possess assault weapons under federal law. Even before
the federal ban was allowed to lapse, it was riddled with
exceptions: Congress exempted any firearm lawfully pos-
sessed under federal law before the passage of the act, see 18
U.S.C. § 922(v)(2) (expired 2004), and over 650 specific fire-
arms, see id. § 922(v)(3) (expired 2004). Thus, a large number
of semiautomatic weapons remained legally in circulation,
even during the so-called ban.
[4] In the end, the temporary federal ban on assault weap-
ons is largely a wash. The most plausible inference to be
drawn from the evolution of federal law as to assault weapons
is that Congress allowed the ban to lapse, having found it
unnecessary. Because current federal policy places assault
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weapons on the same footing as other non-registrable weap-
ons, we see this, on balance, as supporting Serna’s position.
We find more significant the fact that, when the federal
assault-weapon ban ended, Congress didn’t require
previously-banned semiautomatic weapons to be registered.
The fact that semiautomatic weapons are not now, nor have
ever been, subject to a blanket registration requirement sug-
gests that mere possession of them does not pose the same
risk of physical injury as possession of weapons subject to a
blanket federal registration requirement—like silencers and
sawed-off shotguns.
[5] Our caselaw holds that possession of a weapon not
required to be registered can nevertheless be a crime of vio-
lence, depending on the context. We have held, for example,
that conviction for possession of a melted-down shaving razor
by a prison inmate is a crime of violence, because “[t]he con-
fines of prison preclude any recreational uses for a deadly
weapon and render its possession a serious threat to the safety
of others.” Young, 990 F.2d at 472. Inmates live in close
quarters, and the threat of violence is constant. Violence so
inevitably follows possession of a deadly weapon in prison
that we equate possession with violence. Not so with semiau-
tomatic weapons in society at large—they may be used for
target shooting, hunting, in self-defense or in defense of oth-
ers or property. Nothing in California Penal Code section
12280 requires proof that Serna’s possession occurred in a
context prone to violence, and we have no other information
about Serna’s particular crime. See p. 913 supra.4
[6] Thus, we conclude that Serna’s possession of an assault
4The federal Presentence Report contains additional information about
Serna’s prior assault weapon conviction, but we may not rely on facts
from that report in our inquiry. See United States v. Matthews, 374 F.3d
872, 875 n.1 (9th Cir. 2004); see also Shepard v. United States, 125 S. Ct.
1254, 1257 (2005); United States v. Lopez-Montanez, 421 F.3d 926,
931-32 (9th Cir. 2005).
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weapon was not a crime of violence for purposes of section
4B1.2(a) of the Sentencing Guidelines.
SENTENCE VACATED; REMANDED FOR RESEN-
TENCING.
917 UNITED STATES v. SERNA

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