U.S. 5th Circuit Declares Gun Posession A 'Crime Of Violence'

US Courts.gov ^ | 10/11/2002 | 5th Circuit Court

[tarawa]

This appeal presents the question whether the crime pf possession of a "prohibited weapon", specifically a sawed-off shotgun, under Texas law constitutes a crime of violence under Federal sentencing guidelines.

Ruben Serna pleaded guilty to possessing a firearm as a convicted felon in violation of 18 U.S.C. 922(g)(1). At sentencing, the district court found Serna's previous state court felony conviction for possession of a prohibited weapon was a crime of violence and enhanced his sentence on that basis.

The indictment underlying this previous state court conviction identified the prohibited weapon as a "shotgun with a barrel length of less than 18 inches." This type of weapon is commonly known as a sawed-off shotgun. It is reasonable to conclude that a sawed-off shotgun, when possessed unlawfully, is possessed for violent purposes only.

[RLK]

When I was a boy, in Oklahoma, a long time ago, many of my friends fathers had old sawed off 12 gauges left over from their fathers times.

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Shotguns were sawed into pistols to use against snakes.

[Ditto]

If no concrete physically violent act was committed, a person should not be judged guilty of that act through application of metaphor or other vagueness of language, regardless of whether or not he broke some other law.

Did the perp's previous conviction involve a crime of violence? If so, catching him with any firearm, especially an illegal weapon such as a sawed-off, is an aggravating circumstance. If he has a history, it can and should be considered.

[RLK]

Did the perp's previous conviction involve a crime of violence? If so, catching him with any firearm, especially an illegal weapon such as a sawed-off, is an aggravating circumstance. If he has a history, it can and should be considered.

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No man should be convicted of a crime he did not commit. A pattern of prior criminality may be taken into account in assigning severity of sentence for a crime he did commit.

[Illbay]

What I find amazing is that you people can ignore all the inconvenient facts, like "sawed-off shotgun", and conclude that this is an outrageous violation.

No one's right to self-protection is abrogated when they can't carry around a sawed-off shotgun in the trunk.

[Chad Bagwell]

I use a .22

[lentulusgracchus]

Unfortunately, this type of looseness of thought is being asserted by the woman's liberation movement and is apt to be asserted in court, with success as more people in juries and elsewhere adopt it.

I think you missed Martian's point. That was his complaint. Mine, too. William O. Douglas-think is becoming codified in law.

The defendant was a convicted felon, but look how they loaded the argument. They're making an admiralty-law argument against the shotgun, convicting it of lawlessness in se, and then hanging it around the neck of the defendant, whom they've carefully picked as their stiff just the way USG did when they prosecuted the indigent and absent Miller and his dead codefendant in 1939. Miller stinks of New Deal crookedness.

I agree that Miller and its precedent, Presser vs. Illinois (1895), need to be redecided. They might also have a look at Cruikshank, on which Presser rested. I don't think Cruikshank's construction of rights and the Court's refusal to incorporate them to the States, even after the XIVth Amendment was ratified, would pass muster in con law today. But hey, I'm not an attorney, so what do I know? I'm only paying for this party, like you are.

[lentulusgracchus]

This appeal presents the question whether the crime pf possession of a "prohibited weapon", specifically a sawed-off shotgun, under Texas law constitutes a crime of violence under Federal sentencing guidelines.

Under Texas law, practically all weapons are "illegal". Every licensed carry weapon in the state is an "illegal weapon" and defined as such in state law -- the same state law that, like similar laws all over the South, were passed 10 minutes after the Black Panthers were seen carrying rifles and shotguns outside a California legislators' meeting.

Clubs are illegal weapons in Texas. That tree branch that just fell to the ground? Pick it up, you're carrying an illegal weapon, just in case an officer draws down on you and double-taps you in the 10-ring.

Shuriken are illegal weapons. Like to learn how to use nanchuka down at the local dojo? Illegal weapons. Fooling around with shuriken, sticking them in posts and doors and stuff? Illegal weapons. Are you holding a fall of chain in your hand, or a broken motorcycle chain? Illegal weapons. Got an old commissioning sword, or a bayonet for your Kar 95 in your gun safe? Illegal weapons. A two-by-four -- illegal weapon. You a plumber? Better think three times before you pick up that illegal weapon.

Begin to get the picture, fellas?

[FreedomCalls]

Every licensed carry weapon in the state is an "illegal weapon" and defined as such in state law

Can you cite some code for that there law? I surely can't find it anywhere in my copy of the Texas statutes.

[Chemist_Geek]

"Is it reasonable to conclude that possessing a CD burner, is possessed for copyright infringement purposes only?"

Damn straight it is... just ask the RIAA.

Well, yeah, if you read their briefs, anyone with an Internet connection and a CD-ROM is an evil thief, spewing forth copyrighted material... Fortunately, it hasn't made its way into a decision or law yet.

What's the status of that bill which would make pre-ban and post-ban computers?

[Chemist_Geek]

No one's right to self-protection is abrogated when they can't carry around a sawed-off shotgun in the trunk.

I disagree.

First, shotguns are much more effective self-defense weapons than pistols. No one can deny the stressful nature of a violent confrontation, and fine motor skills like aiming are the first things to be lost under stress.

Second, by sawing off the shotgun, one shortens its dangerous range, thereby making it safer for innocents beyond the intended target. Also, it forces a clearer confrontation; while a full-length shotgun may be effective out to 100 yards which is clearly not self-defense distance, a sawn-off one may only be good out to 20 yards. For the Bad Guy to advance to such a close range, their intent will be clear.

Third, one may not necessarily have a trunk or be able to fit a full-sized shotgun; for example, look at a motorcycle with saddlebags. One cannot easily carry a full-sized shotgun or rifle within a saddlebag, yet, we should not deny a motorcyclist effective self-defense.

I have no objection to the arrest of this felon for possessing a firearm. It's illegal, and should be, for felons to possess firearms. What I object to is the presumption of violent intent. If there are facts in evidence, say for example contemporaneous spoken threats by this felon against another person, that's one thing. But, apparently there is no such other evidence!

[RLK]

I think you missed Martian's point. That was his complaint. Mine, too. William O. Douglas-think is becoming codified in law.

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How does what I said disagree with what he said?

[RLK]

They're making an admiralty-law argument against the shotgun, convicting it of lawlessness in se, and then hanging it around the neck of the defendant

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Can admiralty law arguments be made in situations such as this? Admiralty is a strange set of laws which soesn't relate to land law.

[FreedomCalls]

What I find amazing is that you people can ignore all the inconvenient facts, like "sawed-off shotgun", and conclude that this is an outrageous violation.

No one's right to self-protection is abrogated when they can't carry around a sawed-off shotgun in the trunk.

Au Contrare. In many states you can own a "sawed-off shotgun" as long as you pay the $5.00 (yes five dollars!) NFA transfer fee. They make very good defensive weapons.

Check out the SERBU Super Shorty to see a commercially produced version. This is the perfect weapon for those ladies who work the late shift at the local 7-11. A lady firing a pistol will miss as often as she will hit, whereas this will get the robbers' and rapists' attention everytime.

[lentulusgracchus]

Can you cite some code for that there law?

Dug through my appropriate folder and came up with two pamphlets on Texas firearms law. The third "source" is my recollection of a poster put out by either the Texas Department of Public Safety or the Houston Police Department, and displayed either in a police station or a gun shop. This was back around the time the concealed-carry law went into effect at the end of 1995.

The first pamphlet is an abstract that basically quotes criminal and civil law. I compare it to the second, which gives chapter and verse and quotes verbatim, and I see the language is substantially identical.

The first pamphlet was produced in 1991 at the expense of the Texas Smallarms Academy for free distribution under the aegis of the Harris County District Attorney, Johnnie B. Holmes (that's Mister Texas John Law to you and me -- he had a squared-off look and a handlebar mustache that just had John Law written all over him). This pamphlet appears to incorporate case law and executive policy as well as reproducing parts of state criminal code almost verbatim.

The second is a Texas Department of Public Safety pamphlet covering the same subject, produced by the state under publication number LS-16, titled "Texas Concealed Handgun Laws and Selected Deadly Force Statutes [Effective 09-01-95]". This pamphlet cites chapter and verse, which the first pamphlet dispensed with. The principal difference between the two pamphlets is that the newer one includes some additional sections of definitions, and it leads in with the concealed-carry law, codified as Vernon's Civil Statutes, Article 4413 (sections of).

The information you ask about is quoted in the portions of the two pamphlets that reproduce Penal Code Chapter 46, "Weapons". The definitions are mostly in Paragraph 46.01, and the section expressing their prohibited nature is Paragraph 46.05, "Prohibited Weapons".

The poster I saw had illustrations of all the defined weapons in Chapter 46 as cited, but it also contained some objects that are not specifically defined: including the shuriken (throwing stars) and nanchuka (fighting irons), as well as various medieval weapons, a fighting quarterstaff IIRC, a length of threaded pipe, a tree branch or shillelagh, and one or two other items, as well as several that are listed in the defined and prohibited weapons: machine guns, short-barreled firearms, silencers, AP ammunition, zip guns, knuckles. The 1991 pamphlet produced by the District Attorney also specifically named "thowing stars" in a section "Offenses Involving Weapons", in a paragraph subtitled "Transfer of Certain Weapons Prohibited."

The actual definition of a handgun as an "illegal weapon" (the phrase is also frequently used by the Harris County 1991 pamphlet) in my mind -- I'm not sure this is right -- stems from the frequent inclusion of handguns (which have their own definition, which the DA cautions us includes nonworking firearms in some cases) in offenses of possession, transfer, and premises. So there arises a nice distinction, too fine for a poster, between a handgun as an illegal weapon and as a prohibited weapon -- very thin, and very slick. I may have fallen down on it. The other weapons with which handguns are grouped in these prohibitions are illegal, whereas handguns may only be prohibited -- and under certain circumstances. I think this paragraph in particular in the 1991 pamphlet, which I read carefully at the time, may have led me astray:

"Circumstances of Non-Applicability"
"......Although a person may lawfully possess an otherwise illegal weapon [emphasis added] on his own premises or premises under his control, one may not lawfully carry this weapon back and forth from your home to your business on a regular basis. Habitually carrying the weapon from home to business is a crime....."

This elision of "prohibited" and "illegal" weapons, in a paragraph that was pretty clearly discussing handguns, completed, I think the identification in my mind of pistols as "illegal weapons". So I think that distinction needs to be reintroduced in the case of handguns -- but I don't think there are any other categories of "prohibited" weapons that aren't also "illegal", too.

"Chemical dispensing weapons" are illegal, but an exception is made for "small" ones made for personal defense. So in Texas, you may carry the half-ounce size of 5% OC + 1% CN, but not the 15-ounce size? They don't define the boundary.

I think the key here is discretion of law enforcement. The law tells us what is in the law; and the poster told me a little more about what the police agencies are prepared to enforce against. The list was pretty broad -- and the term "prohibited weapons" (which I recall as "illegal weapons") is therefore pretty comprhensive, excluding only long guns, federally licensed firearms (so I hear anecdotally), "legal" knives, small pepper-sprayers, and sofa cushions.

The point here is that the list of "illegal weapons" or "prohibited weapons" is indeed quite long, and the weapons available for a person to defend himself under the law very limited indeed if officers' discretion goes against you and they decide that you are the problem. Which was the whole idea of the law.

There are just a whole lot of things lying around -- hammers, kitchen cutlery -- that constitute "illegal knives" or "clubs" if the Law decides you're an intruder in your own kitchen: your snarling soon-to-be-ex-wife points the finger and presto, you're not only a VAWA offender, you're a felon under Texas law because you had a rolling pin in your hand. Capiche ?

I don't know whether body armor is a regulated or prohibited "weapon": it's a gray area. Personally, I might like to own a Level II vest on New Year's Eve and the Fourth of July -- hold the trauma plate, but gimme the kevlar hat.

I notice that Texans are allowed by law to purchase firearms, if not otherwise prohibited, in contiguous states -- all four of them.

Hoax bombs and explosive devices have their own sections.

Hope this helps. Had to write it up twice: was almost ready to post last time, when I got nailed by a kernel fault. That hasn't happened in a long time.

[lentulusgracchus]

Let's see, I'll take one of those, and......got any Saigas?

[lentulusgracchus]

Can admiralty law arguments be made in situations such as this? Admiralty is a strange set of laws which soesn't relate to land law.

I don't know, that's why I'm scratching my head. But I mention it because there is a resemblance in the argument, and federal LE has shown a zest for trying to apply admiralty law in a widening circle of cases. Here they would seem to have done something parallel to what admiralty law accomplishes: criminalize the thing, then lash anyone you can find to the defendant thing, and criminalize them for something akin to criminal association.

It would seem to be, on the one hand, a straightforward conviction for possession. But the trick with the "crime of violence" doublethink used to prolong the sentence is to accuse and convict the shotgun of violence in se because of its illegal status in an implicit admiralty trial, and then try, convict, and sentence the human defendant for an implicit separate offense of conspiring with the convict weapon (that can't defend itself -- it's a helpless confederate), in an implicit criminal trial of both mute weapon and clueless man that all gets rolled into the punishment phase of his pleading-out. So the shotgun's admiralty rap of "violent crime" gets tried in an admiralty court, and then they both get tried together for conspiracy to commit a violent act, except that the weapon has already been convicted and compromised in a separate proceeding for the purpose of sandbagging the defendant, who isn't allowed to defend because it's all done in the punishment phase. Follow my reasoning?

And to think he copped a plea. Wow.

Somebody needs to send this guy Dick DeGuerin's phone number.

[Travis McGee]

Just wait until President Hillery puts 2 justices on the USSC, and they make decisions like the SCNJ and SCFL.

"The 2nd Amendment in its original meaning applies only to muzzle loading flintlocks manufactured before 1787."

What then?

[RLK]

I vaguely see what you are saying, but this would need to take place in an admiralty court --I believe. The last time I became interested in Admiralty was about 20 years ago. I was in contact with Herbert Markov at the time.

My suspicion here is that we are simply dealing with an incompetent judge like the one who got Clinton off.

[RLK]

Just wait until President Hillery puts 2 justices on the USSC, and they make decisions like the SCNJ and SCFL. "The 2nd Amendment in its original meaning applies only to muzzle loading flintlocks manufactured before 1787." What then?

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All I can say is that we had better start culling the Republican party over for serious real leadership instead of aimless affability.