Whether mere possession of a short-barreled shotgun should be treated as a violent felony under the Armed Career Criminal Act?
Lower court opinion: United States v. Johnson, No. 12-3123, 2013 WL 3924343 (8th Cir. 2013) (per curiam) (unpublished)
Of interest to federal practitioners, this case will resolve a split between federal circuits about the answer to the question presented, which arises under the “residual clause” of the ACCA, 18 U.S.C. § 924(e)(1) and (e)(2)(b)—a provision that “has eluded stable construction,” United States v. Jones, 689 F.3d 696, 699 (7th Cir. 2012). Two circuits—including the 8th Circuit, as in this case—have answered the question “yes”; four others have answered “no.” One of those four is our own circuit, which held in United States v. Miller, 721 F.3d 435 (7th Cir. 2013), that conviction under § 941.28(2) for possession of a short-barreled shotgun was not a violent felony.
Miller reached this conclusion under the Court’s interpretations of the residual clause in Sykes v. United States, 131 S. Ct. 2267 (2011), Begay v. United States, 553 U.S. 137 (2008), and James v. United States, 550 U.S. 192 (2007). Under those cases the analysis boils down to whether the risk posed by the possession of a short-barreled shotgun constitutes a serious risk of injury to another, using the ACCA’s enumerated violent felonies (burglary, arson, extortion, or crimes involving the use of explosives) as guides to evaluate that risk. The court held the risk of physical injury to another presented by the mere possession of a short-barreled shotgun is not in the same league as the risks presented by the offenses of burglary, arson, extortion, or crimes involving the use of explosives. Miller, 721 F.3d at 438-39, 440. The Eighth Circuit does find mere possession of such a weapon just as risky as the enumerated offenses. If the Court affirms the Eighth Circuit’s approach, it will change the law in our circuit.
While the question presented appears narrow, recall that the ACCA has been in the sights of at least one Justice who believe it is unconstitutionally vague. Sykes, 131 S. Ct. at 2284-89 (Scalia, J., dissenting); James, 550 U.S. at 215-31 (Scalia, J., dissenting). The Court’s membership hasn’t changed much since Sykes and James, so Justice Scalia’s position is probably still the minority one; thus, it seems unlikely this case will be a vehicle for striking down the law.