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No. 13-201

______________________________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES ______________________________________________________________________________

ROY HINKLEY,

Petitioner,

v.  

UNITED STATES OF AMERICA

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRTEENTH CIRCUIT ______________________________________________________________________________

BRIEF FOR PETITIONER

______________________________________________________________________________

Team 28

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TABLE OF CONTENTS

TABLE OF AUTHORITIES 2

STATEMENT OF ISSUES 4

STATEMENT OF THE CASE 4

STATEMENT OF FACTS 5

SUMMARY OF ARGUMENT 8

ARGUMENT 10 I. THE COURT OF APPEALS ERRED IN FINDING THAT THE PROTECTIVE SWEEP OF HINKLEY’S HOME DID NOT VIOLATE HINKLEY’S FOURTH AMENDMENT RIGHTS UNDER BUIE AND ALL EXPANSIVE READINGS OF BUIE. 10

A. The Primary Objective of the Fourth Amendment is to Protect the Home. 11 B. This Protective Sweep Did Not Fall Under the “Search Incident to Arrest” Exception Established by Maryland v. Buie. 12 C. This Protective Sweep Did Not Fall Under Any Existing Expansive Interpretation of the Holding in Maryland v. Buie. 14

i. Legitimizing the Hinkley Search Would Expand the Protective Sweep Doctrine Beyond Any Current Court Ruling. 15 ii. Legitimizing the Hinkley Search Would Erode the Protections of the Fourth Amendment. 18

II. THE COURT OF APPEALS CORRECTLY VACATED HINKLEY’S SENTENCE ON THE GROUNDS THAT HINKLEY’S CONVICTION FOR POSSESSION OF A SAWED-OFF SHOTGUN DID NOT CONSTITUTE A VIOLENT FELONY UNDER THE ARMED CAREER CRIMINAL ACT, 18 U.S.C. § 924(e)(2)(B). 21

A. Based On the Analysis Set Forth By the Supreme Court in Begay v. United States, the Crime of Possessing an Unregistered Sawed-Off Shotgun Is Not A “Violent Felony” For the Purposes of 18 U.S.C. § 924(e)(2)(B). 21

i. For the Crime of Possession of an Unregistered Sawed-Off Shotgun, the Test Set Forth In Begay v. United States is the Appropriate Method For Determining Whether Or Not Petitioner’s Crime Constitutes A “Violent Felony” Under § 924(e)(2)(B). 23 ii. Under the Begay Test, the Crime of Possession of an Unregistered Sawed-Off Shotgun is Not A“Violent Felony” Under § 924(e)(2)(B) Because It Is Not “Similar In Kind As Well As In Degree of Risk Posed” to the Analogous Crimes in § 924(e)(2)(B)(ii). 25

B. Since There Is Statutory Vagueness Regarding Whether or Not Possession of an Unregistered Sawed-Off Shotgun Constitutes A “Violent Felony” Under 18 U.S.C. § 924(e)(2)(B), the Long-Standing Doctrine of Lenity Advises That the Court Should Choose the Interpretation Favorable to the Defendant. 29

CONCLUSION 31

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TABLE OF AUTHORITIES

CASES Albernaz v. United States, 450 U.S 333 (1981) ............................................................................ 29 Arizona v. Gant, 553 U.S. 1078 (2008) ........................................................................................ 17 Arkansas v. Setzer, 302 Ark. 593 (1990) ...................................................................................... 27 Begay v. United States, 553 U.S. 137 (2008) ......................................................................... passim Chambers v. United States, 555 U.S. 122 (2009) ............................................................. 22, 23, 29 James v. United States, 550 U.S. 192 (2007). ......................................................................... 22, 23 Katz v. United States, 389 U.S. 347 (2009) .......................................................................... 8, 9, 17 Maryland v. Buie, 494 U.S. 325 (1990) ................................................................................. passim McBoyle v. United States, 283 U.S. 25 (1931) ............................................................................. 28 McNally v. United States, 483 U.S. 350 (1987) ............................................................................ 29 Milentz v. United States, 446 F.2d 111 (8th Cir. 1971) ................................................................ 24 Payton v. New York, 445 U.S. 573 (1980) .................................................................. 17, 18, 19, 20 Rewis v. United States, 401 U.S. 808 (1971) ................................................................................ 30 See Drohan v. Vaughn, 176 F.3d 17 (1st Cir. 1999). .................................................................... 15 See Hegarty v. Somerset County, 53 F.3d 1367 (1st Cir. 1995) ............................................... 9, 14 See United States v. Gould, 364 F.3d 578 (5th Cir. 2004) .......................................... 15, 16, 18, 19 Sykes v. United States, 131 S.Ct. 2267, 180 L.Ed.2d 60 (2011) ............................................ passim United States v. Archer, 531 F.3d 1347 (11th Cir. 2008) ............................................................. 27 United States v. Bass, 404 U.S. 336 (1976) ...................................................................... 20, 28, 29 United States v. Batchelder, 442 U.S. 114 (1979). ....................................................................... 29 United States v. Curtis, 511 U.S. 485 (1994) ................................................................................ 29 United States v. Decker, 292 F.2d 89 (6th Cir. 1961) ................................................................... 24 United States v. Garza, 125 Fed.Appx 927 (10th Cir. 2005) ........................................................ 13 United States v. Johnson, 170 F.3d 708 (7th Cir. 1999) ............................................................... 18 United States v. Martinez-Fuerte, 428 U.S. 543 (1976) ........................................................... 8, 10 United States v. Martins, 413 F.3d 139 (1st Cir. 2005) ......................................................... passim United States v. McGill, 618 F.3d 1273 (11th Cir. 2010) ...................................................... passim United States v. Neal, 2012 U.S. App. LEXIS 25477 (10th Cir. Colo. Dec. 13, 2012) ......... 23, 24 United States v. Owens, 447 F.3d 1345 (11th Cir. 2006) ............................................................. 25 United States v. Patrick, 959 F.2d 991 (D.C. Cir. 1992) .............................................................. 16 United States v. Pugh, 2011 U.S. Dist. LEXIS 23523 (N.D. Fla. Feb. 18, 2011) ............ 23, 24, 27 United States v. Serafin, 562 F.3d 1005 (10th Cir. 2009) ................................................. 23, 24, 27 United States v. Taylor, 248 F.3d 506 (6th Cir. 2001) .................................................................. 16 United States v. Upton, 512 F.3d 394 (7th Cir. 2008) ............................................................ 25, 27 United States v. Vincent, 575 F.3d 820 (8th Cir. 2009) .................................................... 25, 26, 27 United States v. Waldner, 425 F.3d 514 (9th Cir. 2005) ........................................................ 13, 14 United States v. Weeks, 442 Fed. App’x 442 (11th Cir. 2011) ..................................................... 21 United States v. Wiltberger, 18 U.S. 76 (1820). ........................................................................... 28 United States v. Zuniga, 553 F.3d 1330 (10th Cir. 2009) ............................................................. 27 Welch v. Wisconsin, 466 U.S. 740 (1984) ......................................................................... 10, 14, 19

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CONSTITUTION AND STATUTES 18 U.S.C. § 924 ...................................................................................................................... passim 26 U.S.C. § 5861 ............................................................................................................... 23, 24, 27 26 U.S.C. § 5845 ........................................................................................................................... 24 U.S. Const. amend. IV ................................................................................................................ 9, 17

STATEMENT OF ISSUES

1. Did the District Court and Court of Appeals err in finding that Officer Sanford properly

conducted a warrantless protective sweep of a residence that was not incident to arrest where no

exigent circumstances existed?

2. Did the Court of Appeals correctly vacate Hinkley’s sentence on the grounds that

Hinkley’s conviction for possession of a “sawed-off shotgun” does not constitute a “violent

felony” under the Armed Career Criminal Act?

STATEMENT OF THE CASE

On June 1, 2011, Defendant-Petitioner Roy Hinkley (“Hinkley”) was arrested for being a

felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). R. 6. Hinkley moved to

suppress the evidence found by Officer Sanford, reasoning that the “protective sweep” Officer

Sanford conducted was a violation of Hinkley’s Fourth Amendment rights. R. 6. On September

1, 2001, the District Court denied Hinkley’s motion to suppress in his suppression hearing based

solely on the testimony of Officer Sanford. Id. On October 15, 2011, Hinkley entered a

conditional guilty plea for the charge of being a felon in possession of a firearm pursuant to the

Armed Career Criminal Act (“ACCA”). Id. He reserved the right to challenge the District

Court’s denial of his motion to suppress. Id. On November 1, 2011, at his sentencing hearing,

Hinkley argued that his conviction for possession of a “sawed-off shotgun” did not constitute a

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predicate “violent felony” for ACCA purposes. Id. The District Court did not agree and

sentenced Hinkley to 180 months of incarceration for violating the ACCA. Id.

Hinkley appealed the District Court’s decision, claiming the Court improperly denied his

motion to suppress and that the ACCA was inapplicable because his prior conviction does not

qualify as a “violent felony” under the ACCA. R. 6. The Court of Appeals for the Thirteenth

Circuit affirmed the District Court’s decision regarding the motion to suppress. R. 11. The

Court found that Officer Sanford was lawfully in Hinkley’s home and conducted a lawful “safety

sweep” to ensure his own safety. Relying on Maryland v. Buie, the Court determined that the

sweep was not a violation of Hinkley’s Fourth Amendment protection. R. 8 (citing Maryland v.

Buie, 494 U.S. 325, 327 (1990)). However, the Court vacated Hinkley’s ACCA sentence and

remanded for further sentencing. The Court determined that possession of a “sawed-off

shotgun” did not fall within the residual clause of the ACCA under the two-pronged test

established in Begay v. United States. R. 9 (citing Begay v. United States, 553 U.S. 137

(2008)).

Petitioner submitted a Writ of Certiorari to the Supreme Court appealing the decision of

the Thirteenth Circuit. The Supreme Court granted the Writ. R. 12.

STATEMENT OF FACTS

Hinkley had difficulty with the law growing up. R. 3. His family moved as he was

beginning high school, and Hinkley had a difficult time adjusting to the new town. Id. At

fifteen, Hinkley was convicted as a juvenile for first-degree burglary after succumbing to peer

pressure from his new group of friends. Id. He was sentenced to home confinement but still

successfully completed high school through homeschooling from his mother. Id. He took this

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opportunity to turn his life around and earned his Bachelor’s degree from the University of North

Greene. Id. He began pursuing his Master’s in Business Administration. Id. When his wife got

pregnant, Hinkley chose to leave the program and join his uncle’s construction business. R.

3. Hinkley excelled in his position; he became a part owner of his uncle’s business within five

years. He later became a partner and inherited the entire business at his uncle’s passing. R. 4.

The business thrived under Hinkley’s supervision; however, the 2008 housing crisis hit,

and unfortunately business declined. Id. Tragically, around this time, Hinkley’s six year-old

daughter was diagnosed with leukemia, and Hinkley had fallen behind on his health insurance

bills. Id. In January 2008, Hinkley burned down the construction business to collect insurance

money and help pay for his daughter’s medical expenses. Id. However, investigators found

evidence of his attempt, and Hinkley was charged with arson. Id. The prosecutor and sentencing

judge were sympathetic to Hinkley’s unfortunate situation and sentenced him to one year of

probation so as to allow him to continue helping his wife care for their daughter. Id.

Hinkley was forced to work as a real estate agent, where he earned far less than from his

construction business. R. 4. As a result of the reduced income, Hinkley had to move his family

to a low-income, crime-ridden area, though it was zoned in a good school district. Id. Within

the first month, multiple houses and cars on the street were burglarized. Id. One burglar

threatened a homeowner two doors down from the Hinkleys’ home with a semi-automatic

handgun. Id. Fearful for his family’s safety, Hinkley wanted to purchase a handgun for

protection but could not because of his status as a convicted felon. Id. A friend gave Hinkley a

“sawed-off shotgun.” R. 5. One evening, Hinkley heard a commotion outside of his

home. Id. “Fearing for the safety of his family,” Hinkley walked outside with the shotgun in

hand. Id. Police officers were in the area, and Officer Terrence Sanford (“Officer Sanford”)

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questioned Hinkley about whether his shotgun was legally registered. Id. He was subsequently

charged with possession of an unregistered “sawed-off shotgun.” Id. His daughter’s health had

taken a turn for the worse, and her only means of survival was an expensive bone marrow

transplant. Id. Again sympathetic to Hinkley’s situation, the prosecutor offered Hinkley ten

years of probation and five years of home monitoring with no jail time so he could continue to

work and be with his daughter. R. 5. Hinkley accepted and pled guilty to the charge of

possession of an unregistered “sawed-off shotgun.” Id.

Two months later, Hinkley’s neighbor across the street was shot and killed during a home

invasion. Id. Since he could not afford to move his family out of the area, Hinkley decided to

purchase another firearm from his friend--this time a .40 caliber semi-automatic handgun. R.

5. After learning to use the handgun on June 1, 2011, Hinkley left the gun on the kitchen

counter, intending to clean it after dinner. Id. As he sat down to eat, Hinkley heard a knock at

the door and found Officer Sanford outside in heavy rain. Id.

Officer Sanford told Hinkley of a burglar in the neighborhood whose description matched

that of the burglar who had killed Hinkley’s neighbor. Id. He explained that the police were

going door-to-door to “ensure that the burglar was not hiding out in any of the

homes.” Id. Officer Sanford asked if he could come inside and ask Hinkley a few questions

since it was raining hard outside. Id. Hinkley agreed and Officer Sanford entered his living

room. R. 6. Officer Sanford “did not fear Hinkley or believe he was the burglar, but he did ask

Hinkley if he could look around the house to make sure that the burglar had not broken in and

taken refuge in Hinkley’s home.” Id. Hinkley refused. Id. He assured Officer Sanford that he

had neither seen nor heard anything and kept his back door locked. Id. Despite Hinkley’s

express denial of consent, Officer Sanford performed a brief sweep of Hinkley’s

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home. Id. Officer Sanford opened the door to the kitchen and saw the semi-automatic handgun

on the counter. Hinkley was subsequently arrested for being a felon in possession of a firearm

under 18 U.S.C. § 922(g)(1).

SUMMARY OF ARGUMENT

Nowhere is the Fourth Amendment protection stronger than in protecting the sanctity of

an individual’s privacy interest in her home. See United States v. Martinez-Fuerte, 428 U.S.

543, 565 (1976). In this case, Officer Sanford violated Hinkley’s Fourth Amendment protection

from unreasonable searches and seizures by conducting an unjustified and illegal “protective

sweep” of Hinkley’s home.

Warrantless searches are per se unreasonable, subject to a few well-established

exceptions. Katz v. United States, 389 U.S. 347, 357 (2009). The protective sweep conducted

by Officer Sanford was a warrantless search that did not fall under any of these exceptions and

thus was unreasonable under the Fourth Amendment. In Maryland v. Buie, the Court found that

limited protective sweeps performed in conjunction with an arrest are permissible. See

Maryland v. Buie, 494 U.S. 325 (1990) (emphasis added). The “in conjunction with an arrest”

clause explains that the Buie justification applies only in situations where the officers are already

in the process of executing a legal arrest. Officer Sanford’s sweep does not fall under the rule

established in Buie as it was not conducted in conjunction with a lawful arrest. Accordingly,

Officer Sanford violated a primary purpose of the Fourth Amendment--the protection of the

extensive privacy interests within a home.

Furthermore, Office Sanford’s search does not fall under any circuit courts’ expansive

readings of Buie. These readings allow officers to conduct warrantless searches that are not

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incident to arrest only in the presence of exigent circumstances. Exigent Circumstances include:

(1) hot pursuit of a fleeing felon; (2) threatened destruction of evidence inside a residence before

a warrant can be obtained; (3) a risk that the suspect may escape from the residence undetected;

or (4) a threat, posed by a suspect to the lives or safety of the public, the police officers, or to

herself. See Hegarty v. Somerset County, 53 F.3d 1367, 1374 (1st Cir. 1995). No such exigent

circumstances were present in this case. As a result, legitimizing a protective sweep such as the

one in this case would be an unduly expansive reading of Buie and would erode the

constitutional protections afforded by the Fourth Amendment.

Hinkley was sentenced under the ACCA. R. 9. The residual clause of the ACCA leaves

ambiguous and unclear the issue of whether or not “sawed-off shotgun” falls within the

definition of a “violent felony.” The Court used the two-pronged approach outlined in Begay v.

United States to determine what constitutes a “violent felony” under the statute. R. 11 (citing

Begay v. United States, 553 U.S. 137, 143 (2008)). Under this approach, the Court must

determine (1) whether an offense “involves conduct that presents a serious potential risk of

physical injury to another,” and (2) whether the offense was similar in kind and in degree to the

four crimes explicitly listed in the ACCA—burglary, arson, extortion, or use of explosives.

Begay, 553 U.S. at 143. Based on the two-pronged approach set forth in Begay v. United States,

and subsequent cases applying this test, the Court of Appeals found that Hinkley’s Prior

Conviction was not a “violent felony” under the ACCA.

Furthermore, since there is statutory vagueness regarding whether or not possession of an

unregistered sawed-off shotgun constitutes a “violent felony” under 18 U.S.C. § 924(e)(2)(B),

the long-standing doctrine of lenity advises that the Court should choose the interpretation

favorable to the defendant. Given the confusing nature of the ACCA’s residual clause and the

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negative effects it has had on the fundamental policy principles of notice and judicial deference,

the ambiguity found in 18 U.S.C. § 924(e)(2)(B)(ii) should be “resolved in favor of

lenity.” Rewis v. United States, 401 U.S. 808, 812 (1971). Accordingly, the Court must resolve

the ambiguity in favor of Hinkley and affirm the Court of Appeals’ decision to reverse Hinkley’s

sentencing under the ACCA.

ARGUMENT

I. THE COURT OF APPEALS ERRED IN FINDING THAT THE PROTECTIVE SWEEP OF HINKLEY’S HOME DID NOT VIOLATE HINKLEY’S FOURTH AMENDMENT RIGHTS UNDER BUIE AND ALL EXPANSIVE READINGS OF BUIE.

The Fourth Amendment protects people from unreasonable searches and seizures. U.S.

Const. amend. IV. Warrantless searches are “per se unreasonable, subject only to a few

specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347,

357 (2009). The Court of Appeals holding should be reversed because the warrantless search of

Hinkley’s home violated Hinkley’s Fourth Amendment rights. The police officer’s warrantless

“protective sweep” of Hinkley’s residence was unreasonable. The search fell under none of the

specifically established and well-delineated exceptions as it was neither incident to an arrest

under Maryland v. Buie, nor did it fall under any other exceptions created by any expansive

readings of Buie. See Maryland v. Buie, 494 U.S. 325 (1990). Therefore Petitioner’s motion to

suppress should be granted.

The United States Court of Appeals affirmed the District Court’s ruling that Petitioner’s

motion to suppress should be denied. Questions of legal determinations shall be reviewed de

novo. See United States v. Arvizu, 534 U.S. 266 (2002). The question of whether Officer

Sanford’s warrantless search was reasonable under the Fourth Amendment is a legal

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determination. Under a de novo standard, this court owes no deference to the legal

determinations of the Court of Appeals. See id.

A. The Primary Objective of the Fourth Amendment is to Protect the Home.

The search of Hinkley’s residence was presumptively unreasonable because the primary

purpose of the Fourth Amendment is to protect the sanctity of an individual’s privacy interest in

her home. See United States v. Martinez-Fuerte, 428 U.S. 543, 565 (1976). In fact, it is the

“bedrock principle that the prophylaxis of the Fourth Amendment is at its zenith with respect to

an individual’s home.” United States v. Martins, 413 F.3d 139, 139 (1st Cir. 2005) (finding that

warrantless police entry into a home is presumptively unreasonable); see also Welch v.

Wisconsin, 466 U.S. 740, 748 (1984) ("it is axiomatic that the ‘physical entry of the home is the

chief evil against which the wording of the Fourth Amendment is directed.’”). ……

Officer Sanford entered and searched the home of Hinkley without a warrant. Although

Hinkley allowed Officer Sanford into his home for reprieve from the rain, he expressly denied

Officer Sanford consent to search his house. Since the Fourth Amendment most rigidly protects

against searches of an individual’s home, the Court must view the actions of Officer Sanford

with a high level of scrutiny. See Welch, 466 U.S. at 748; see also Martins, 413 F.3d at

139. Officer Sanford did not obtain a warrant to search Hinkley’s home; therefore, the search

must fall within an established “carve-out” exception to be considered a reasonable search. See

Maryland v. Buie, 494 U.S. 325 (1990). Since Hinkley did not give Officer Sanford permission

to search the home, the search must be justified by the standards laid down in Buie or the Buie

progeny of cases.

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B. This Protective Sweep Did Not Fall Under the “Search Incident to Arrest” Exception Established by Maryland v. Buie.

Warrantless searches can be carried out legally in a search incident to arrest. See Buie,

494 U.S. at 325 (1990) (legitimizing protective sweeps incident to arrest in particular

circumstances). The protective sweep Officer Sanford conducted of Hinkley’s residence was not

incident to arrest. Therefore, the search of Hinkley’s home could not be carried out under a Buie

justification.

In Buie, the police officers lawfully entered defendant’s home with a warrant. Defendant

came out of the basement and was subsequently arrested. The police proceeded to conduct a

“protective sweep” of the basement to ensure no one else would emerge from the basement and

launch an attack on the officers. Buie, 494 U.S. at 325. The Supreme Court held that, under the

Fourth Amendment, a limited protective sweep in conjunction with an arrest may be performed

when the officer has a “reasonable belief that the area to be swept harbors individuals posing a

danger to those on the arrest scene.” Id. at 334 (emphasizing that such a sweep is not

automatically lawful once lawfully in the house). A protective sweep was defined as: “a quick

and limited search of premises, incident to an arrest and conducted to protect the safety of police

officers or others.” Id. at 327. “It is narrowly confined to a cursory visual inspection of those

places in which a person might be hiding.” Id. The Court discussed that once officers have

lawfully entered the home through a warrant, consent, or an exigent circumstance, “their conduct

is measured by a standard of reasonableness.” Id. at 329.

The officer’s protective sweep of Hinkley’s home was not authorized by Buie because the

protective sweep was not incident to arrest. The Supreme Court uses the word “arrest” twice in

its holding establishing a two-pronged approach to permit a protective sweep. The word “arrest”

is first used in a prepositional phrase that modifies the word sweep. The Court held that “a

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limited protective sweep, in conjunction with an arrest, may be performed if . . . .” Id. at

334. The placement of the phrase “in conjunction with an arrest” establishes the first prong:

protective sweeps are only permissible under the Fourth Amendment when conducted in

conjunction with a lawful arrest. The word “arrest” also appears in the subordinate clause that

says, “when the officer has a reasonable belief that the area to be swept harbors individuals

posing a danger to those on the arrest scene.” Buie, 494 U.S. at 334. This clause further limits

the scope of legitimate protective sweeps by creating a second prong that requires officers to

have (1) a reasonable belief, (2) that the area harbors individuals, (3) who pose a danger to those

on the arrest scene. This holding requires that both prongs be satisfied prior to conducting a

protective sweep.

The fact pattern in the instant case is distinguishable from Buie on several grounds, the

chief of which is that the search of Hinkley’s home was not pursuant to an arrest. In Buie, law

enforcement officers obtained an arrest warrant for Buie and his alleged accomplice after

investigating an armed robbery. Id. at 325. After the officers arrested Buie, they entered the

basement to “see if there was anyone else down there.” Id. at 328. The search of Hinkley’s

apartment was not a search incident to arrest. Officer Sanford asked if he could “step inside and

ask Mr. Hinkley a few questions because it was raining quite hard outside.” R. 6. Hinkley was

not under arrest. The fact that the search of Hinkley’s home led to an arrest does not

retroactively make the protective sweep a search incident to arrest. Thus, the first prong of the

Buie standard is not met. Even if the first prong were met, Office Sanford needed to have

reasonable and articulable suspicion that someone who posed a threat to him was present in the

residence. Officer Sanford stated that “he did not fear Hinkley” nor did he “think Hinkley was

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the burglar.” Id. Accordingly, the second prong of the Buie standard is also not met. Therefore,

the search is not justifiable based on the protective sweep justification invoked in Buie.

C. This Protective Sweep Did Not Fall Under Any Existing Expansive Interpretation of the Holding in Maryland v. Buie.

The protective sweep of Hinkley’s home does not fall under any expansive readings of

Buie. This protective sweep was not pursuant to an arrest warrant, a search warrant, any exigent

circumstances, or emergency aid. The Hinkley search violates even those circuits with the

broadest interpretations of Buie. The Court should not deem the search of Hinkley’s home

permissible because legitimizing this search would: (1) expand the Protective Sweep Doctrine

further than any other current court has and (2) erode the protections of the Fourth Amendment.

The First Circuit has held that a police officer may conduct a sweep if she entered the

residence lawfully pursuant to an arrest warrant, a search warrant, or if exigent circumstances

exist. See United States v. Martins, 413 F.3d 139 (1st Cir. 2005) (holding that in the First

Circuit, a protective sweep need not occur only when the search is incident to arrest). The Ninth

Circuit also held that exigent circumstances can legitimize a warrantless search. See United

States v. Reid, 226 F.3d 1020, 1027 (9th Cir. 2005). The Tenth Circuit has refused to expand

protective sweeps beyond the “incident to arrest” language found in the Buie opinion. See

United States v. Garza, 125 Fed.Appx 927 (10th Cir. 2005) (refusing to expand the protective

sweep doctrine beyond the original language in Buie). The Eighth Circuit also expressed a

reticence to expand the protective sweep doctrine. See United States v. Waldner, 425 F.3d 514

(8th Cir. 2005).

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i. Legitimizing the Hinkley Search Would Expand the Protective Sweep Doctrine Beyond Any Current Court Ruling.

Officer Sanford was not conducting a sweep pursuant to either an arrest or search

warrant. Officer Sanford asked Hinkley if he could “come in and ask him a few questions,

because it was raining quite hard outside.” R. 5-6. Therefore, the Martins expansion from

“protective sweeps incident to arrest” to protective sweeps “in the performance of the carrying

out of a warrant” is not applicable. See Martins, 413 F.3d at 149.

Many jurisdictions have expanded the protective sweep doctrine to encompass situations

where exigent circumstances exist. See id.; see also Waldner, 425 F.3d at 514. The following

circumstances have been referenced as common examples of exigent circumstances: (1) hot

pursuit of a fleeing felon; (2) threatened destruction of evidence inside a residence before a

warrant can be obtained; (3) a risk that the suspect may escape from the residence undetected; or

(4) a threat, posed by a suspect, to the lives or safety of the public, the police officers, or to

herself. See Hegarty v. Somerset County, 53 F.3d 1367, 1374 (1st Cir. 1995).

There are no exigent circumstances in the instant case to justify a protective

sweep. Officer Sanford was not in “hot pursuit” of a fleeing felon. He was merely “going door-

to-door” because neighbors reported seeing the burglar take off in the direction of Hinkley’s

home. R. 5. Hot pursuit requires continuous pursuit of the felon from the scene of the

crime. See Welsh v. Wisconsin, 466 U.S. 740 (1984). There was no evidence which was in

danger of destruction, nor was there a risk of the suspect escaping the residence

undetected. Thus, the second and third factors do not arise.

The fourth Hegarty factor has been interpreted in United States v. Daoust to mean “when

executing a search warrant, officers can perform a ‘protective sweep’ of an area if there is a

reasonable suspicion of risk to the safety of the officers.” Drohan v. Vaughn, 176 F.3d 17 (1st

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Cir. 1999) (citing United States v. Daoust, 916 F.2d 757 (1st Cir. 1990)). This scenario is

distinguishable from the instant case for three reasons. First, Officer Sanford did not enter the

home pursuant to a warrant. Second, there was no “arrest scene” where individuals could be put

in danger. Finally, and most importantly, the facts in this case are not definite enough to

constitute “particular and specific facts” warranting a protective sweep. Officer Sanford did not

hear an adult male voice from another room. See Martins, 413 F.3d at 147. Nor was Officer

Sanford told that a dangerous individual was located in an adjacent room. See United States v.

Gould, 364 F.3d 578 (5th Cir. 2004). In fact, Hinkley assured Officer Sanford that there was no

one else in the house, stating “he had not seen or heard anything all night, kept his back door

locked, and surely would have heard someone enter.” R. 6. Officer Sanford had no reason to

doubt Hinkley. He had no “reasonable belief based on specific and particular facts” that there

was another individual who posed a danger. Nor did Officer Sanford believe that Hinkley posed

a danger to Officer Sanford’s safety. Officer Sanford stated that “he did not fear Hinkley” nor

did he “think Hinkley was the burglar.” Id.

Additionally, the exigent circumstances rationale is inconsistent with a “knock-and-

talk.” The exigent circumstances clause operates to protect officers from a danger that exists to

the officer while he is performing his duties. The Martins court held that a police officer who

has “lawfully entered a residence pursuant to a search warrant, an arrest warrant, or exigent

circumstances still possesses the right to perform a protective sweep.” See Martins, 413 F.3d at

149. Each of these situations involves a police officer performing a duty from which she cannot

retreat. In the instant case, the police officer was having a conversation with a citizen. R. 6. A

protective sweep was unnecessary because Officer Sanford was not required to talk to Hinkley

and always retained the option of leaving. Officer Sanford was not in the midst of performing an

  17  

arrest where a surprise attack could be launched upon him from an individual concealing

himself. This latter scenario is the envisioned situation that prompted the protective sweep

holding in Buie. See Buie, 494 U.S. at 325.

The search of Hinkley’s home is not permissible under the most expansive reading of the

Protective Sweep Doctrine seen in United States v. Gould. See Gould, 364 F.3d 578 (5th Cir.

2004). In Gould, a resident of a mobile home consented to officers searching the bedroom for

the suspect. Id. at 580. The Court held that a protective sweep was valid because officers were

within the home for legitimate governmental purpose and had reasonable suspicion of danger

and that the sweep was properly limited in terms of scope and duration. Gould is distinguishable

from this case because there was no consent to search. Officer Sanford only had consent to enter

Hinkley’s home. In fact, Hinkley expressly denied Officer Sanford consent to search the

adjacent rooms for the burglar. See R. 6. The Gould court relies on the holdings of United

States v. Patrick and United States v. Taylor; however, both cases involve consent to search. See

United States v. Patrick, 959 F.2d 991 (D.C. Cir. 1992); see also United States v. Taylor, 248

F.3d 506 (6th Cir. 2001). In United States v. Taylor, the Court held that the protective sweep

was legitimate because officers not only had consent to enter the dwelling, but also had consent

to move from the living room to the hallway where the marijuana was found. This is

distinguishable from the facts here, where the officer had permission to enter the apartment, but

was denied permission to enter the kitchen where the gun was ultimately found pursuant to the

“protective sweep.” R. 6.

While circuit courts differ in their interpretations of Buie, no court has interpreted the

“protective sweep doctrine” expansively enough to encompass the facts of this case. Some

circuits have held fast to the “incident to arrest” prerequisite found in Buie. Other courts have

  18  

interpreted this language more liberally and given the protective sweep legitimacy in

circumstances involving exigent circumstances. However, neither of these rationales would

support a sweep that was made without consent to search, in absence of an arrest warrant, a

search warrant, or exigent circumstances, as was the case here.

ii. Legitimizing the Hinkley Search Would Erode the Protections of the Fourth Amendment.

The Fourth Amendment is at the height of its power when it is applied to the context of

an individual’s home. See Martins, 413 F.3d at 139. The Fourth Amendment applies to multiple

contexts, such as an individual’s person or car. See Arizona v. Gant, 553 U.S. 1078 (2008).

However, “in none is the zone of privacy more clearly defined than when bounded by the

unambiguous physical dimensions of an individual's home -- a zone that finds its roots in clear

and specific constitutional terms: ‘The right of the people to be secure in their houses shall not be

violated.’" See Payton v. New York, 445 U.S. 573 (1980) (citing U.S. Const. amend. IV).

The Fourth Amendment provides that “warrantless police entry into a residence is

presumptively unreasonable unless it falls within a few well-delineated exceptions.” See

Martins, 413 F.3d at 146 (discussing exigent circumstances and emergency aid as legitimate

means by which police may enter and search a home). Therefore, the default rule is that a

warrantless entry and search of a home is per se unreasonable, unless the search is covered by a

specific exception. Katz v. United States, 389 U.S. 347, 357 (2009). However, there are a limited

number of situations where courts have found exceptions to these “presumptively unreasonable”

searches. In Buie, the Supreme Court held that police officers may conduct a “protective sweep

in conjunction with an arrest, when [the] searching officer possesses a reasonable belief based on

specific and articulable facts that the area to be swept harbors an individual posing danger to

those on the arrest scene.” Buie, 494 U.S. at 325. Some circuits have interpreted the language

  19  

more broadly and have expanded the ruling to cover protective sweeps in situations that are

merely based on exigent circumstances rather than an arrest. See Martins, 413 F.3d at 155

(holding that protective sweeps are appropriate when made pursuant to an arrest warrant, a

search warrant, or exigent circumstances).

Expanding the protective sweep doctrine to encompass situations like this offends the

purpose of the Fourth Amendment. "[A]t the core [of the Fourth Amendment] stands the right of

a man to retreat to his own home and there be free from unreasonable government

intrusion." Payton, 445 U.S. at 582. In this case, Officer Sanford was only allowed in the home

because Hinkley gave him permission to step inside out of the rain. R. 5-6. Officer Sanford did

not have an arrest warrant, a search warrant, or any exigent circumstances that would have

allowed him to enter the residence without Hinkley’s permission. Additionally, Hinkley

expressly denied Officer Sanford consent to search the house. See R. 6.

This type of expansion would provide a perverse incentive for homeowners to not

cooperate with police investigations. The legitimization of the Hinkley-type search would allow

police officers to more easily circumvent the Fourth Amendment by use of a knock-and-

talk. The knock-and talk strategy would become a powerful tool that lowers the threshold of the

sweep from probable cause to a reasonable suspicion -- articulable by the searching

officer. Holding the search here to be unconstitutional may “mean that the police use a tactic

like ‘knock and talk’ somewhat less frequently, but that may be the price of compliance with the

Fourth Amendment.” See United States v. Johnson, 170 F.3d 708, 718 (7th Cir. 1999). As the

District Court stated in Gould, police officers still have the opportunity to return to the residence

later with a warrant so as not to violate the resident’s constitutional rights. See Gould, 364 F.3d

at 595.

  20  

Judge Smith, dissenting in Gould, points out that there must be consanguinity between

the legitimacy of the officer’s purpose and the reasonable fear possessed by the officers. See

Gould, 364 F.3d at 596. In the instant case, Officer Sanford asked for permission to enter

Hinkley’s home to ask him some questions. Once inside, Officer Sanford indicated that he was

interested in ascertaining if the burglar was also inside the home. At this time, Hinkley

explained “he had not seen or heard anything all night, kept his back door locked, and surely

would have heard someone enter.” R. 6. This fact pattern points toward two possible

scenarios. Either (a) Officer Sanford had no intention of asking Hinkley questions, rather he

used that explanation as subterfuge for gaining entry to the home so he could perform a

protective sweep, or (b) when Officer Sanford found the firearm, the legitimate purpose had

evaporated since Hinkley told Officer Sanford that there was no way the burglar could be present

in the house. Either scenario leads to the conclusion that the search was illegitimate.

Finally, since Officer Sanford did not have consent to search Hinkley’s home, his sweep

could only have been reasonable if he faced a greater danger by not performing the sweep. See

Gould, 364 F.3d at 596. Officer Sanford could have retreated. In the fitting words of Judge

Smith, “We are not faced here with Daedalus’s Labyrinth or the Minotaur lurking somewhere

inside.” Id. Officer Sanford’s search cannot be reconciled with the fact that he was not under

the type of imminent danger that authorizes a protective sweep.

For these reasons, a legitimization of the Hinkley-type search would constitute a

substantial weakening of the Fourth Amendment. The Supreme Court has reiterated the

importance of the Fourth Amendment in connection with the individual’s home. See Welch, 466

U.S. at 740; see also Payton, 445 U.S. at 573. Not only does the search here reach far beyond

any current legal precedent, but it strikes at the heart of Fourth Amendment protections– “the

  21  

right of a man to retreat to his own home and there be free from unreasonable government

intrusion." See Payton at 582. For this reason, the Court of Appeals holding should be reversed.

II. THE COURT OF APPEALS CORRECTLY VACATED HINKLEY’S SENTENCE ON THE GROUNDS THAT HINKLEY’S CONVICTION FOR POSSESSION OF A SAWED-OFF SHOTGUN DID NOT CONSTITUTE A VIOLENT FELONY UNDER THE ARMED CAREER CRIMINAL ACT, 18 U.S.C. § 924(E)(2)(B).

The Government contests the Thirteenth Circuit’s decision that Petitioner’s prior

conviction of possession of an unregistered sawed-off shotgun (hereinafter, “Prior Conviction”)

is not a “violent felony” within the meaning of the Armed Career Criminal Act (“ACCA”). R. at

11. Based on the two-pronged approach set forth in Begay v. United States and subsequent cases

applying this test, the Court of Appeals found that Hinkley’s Prior Conviction was not a “violent

felony” under the ACCA. Id. (citing Begay v. United States, 553 U.S. 137, 143

(2008)). Additionally, the vague language of the ACCA warrants application of the doctrine of

lenity. See United States v. Bass, 404 U.S. 336, 348 (1976). Based on this doctrine, the

ambiguity of the ACCA must be resolved in favor of the defendant. Id. As a result of the Begay

approach and the doctrine of lenity, the Court of Appeals decision to vacate Hinkley’s sentence

pursuant to the ACCA should be affirmed.

A. Based On the Analysis Set Forth By the Supreme Court in Begay v. United States, the Crime of Possessing an Unregistered Sawed-Off Shotgun Is Not A “Violent Felony” For the Purposes of 18 U.S.C. § 924(e)(2)(B).

The ACCA mandates a sentence of no less than fifteen years imprisonment for anyone

who violates 18 U.S.C. § 922(g) and already has three prior convictions for a “violent felony or

serious drug offense.” 18 U.S.C. § 924(e)(1). Under the ACCA, the term “violent felony”

means:

…any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or

  22  

destructive device that would be punishable by imprisonment for such term if committed by an adult, that— (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

Id. § 924(e)(2)(B).

As noted by the Court of Appeals below, Petitioner’s Prior Conviction “does not satisfy

the force requirement of 18 U.S.C. § 924(e)(2)(B)(i) and is not one of the four listed crimes in 18

U.S.C. § 924(e)(2)(B)(ii).” R. at 9. Therefore, the only way that Petitioner Hinkley’s Prior

Conviction could be considered a “violent felony” is if it falls into the residual clause of

§ 924(e)(2)(B)(ii): “or otherwise involves conduct that presents a serious potential risk of

physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii). However, the Court of Appeals held

that Petitioner Hinkley’s Prior Conviction did not qualify as a “violent felony” under the ACCA

because it was not “ ‘roughly similar, in kind as well as in degree of risk posed’ to the four

crimes expressly listed in the ACCA: burglary, arson, extortion, and the unlawful use of

explosives.” R. at 10 (quoting Begay v. United States, 553 U.S. 137, 143 (2008)). Therefore, the

Thirteenth Circuit vacated Hinkley’s sentence. R. at 11.

“Whether a conviction is a ‘violent felony’ under the ACCA is a question of law that will

be reviewed de novo.” United States v. Weeks, 442 Fed. App’x 447, 452 (11th Cir.

2011). Based on a candid examination of the interpretative case law surrounding the ACCA, the

Thirteenth Circuit was correct in its finding.

  23  

i. For the Crime of Possession of an Unregistered Sawed-Off Shotgun, the Test Set Forth In Begay v. United States is the Appropriate Method For Determining Whether Or Not Petitioner’s Crime Constitutes A “Violent Felony” Under § 924(e)(2)(B).

Since 2007, the Supreme Court has handed down four decisions addressing how to apply

the residual clause of 18 U.S.C. § 924(e)(2)(B)(ii). See Sykes v. United States, 131 S.Ct. 2267,

2275, 180 L.Ed.2d 60 (2011).; see also Chambers v. United States, 555 U.S. 122 (2009);

see further Begay v. United States, 553 U.S. 137 (2008); see further James v. United States, 550

U.S. 192 (2007). The Court of Appeals in this case correctly applied the two-prong analytical

framework that was first articulated in Begay and has not been overturned since then in any

subsequent cases. R. at 9.

In Begay, the Court determined that a DUI conviction was not a “violent felony” under

the residual clause of 18 U.S.C. § 924(e)(2)(B)(ii)#. Begay, 553 U.S. at 145. In doing so, the

Court employed a two-part framework. First, the Court determined whether the offense involves

conduct that presents a serious potential risk of physical injury to another. Id. at 141. Finding

that it did, the Court proceeded to the second prong, which inquires as to whether or not the

crime at issue is similar “in kind as well as in degree of risk posed” to the example crimes listed

in 18 U.S.C. § 924(e)(2)(B)(ii). Id. at 143. Crucially, the Court reasoned that a DUI differs from

the example crimes of burglary, arson, extortion, and crimes involving the use of explosives in

the sense that a DUI does not involve the same “purposeful, [‘]violent,[’] and [‘]aggressive[’]

conduct.” Id. at 145.

The test employed by the Court in Begay differed from the test employed in the

precedential decision of James v. United States, which sought to determine whether or not the

risk posed by the crime at issue was comparable to the risk posed by its closest analog among the

offenses enumerated in the statute. See James v. United States, 550 U.S. 192, 203 (2007). In a

  24  

subsequent decision, the Court used the analytical frameworks from both James and Begay to

determine that the crime of failing to report for weekend confinement is not a “violent felony”

under 18 U.S.C. § 924(e)(2)(B). See Chambers v. United States, 555 U.S. 122, 128 (2009).

Following Chambers, the next and most recent Supreme Court decision in this line of

cases was Sykes v. United States. 131 S. Ct. 2267 (2011). In that case, the Court declined to

apply the Begay test. Instead, the Court obtained guidance from the tests proffered by the

majority opinion in James and the dissent in James, but declared neither one dispositive for

resolving the issue of whether the crime of vehicular flight is a “violent felony” under the

ACCA. Sykes, 131 S. Ct. at 2284-85 (Scalia, J., dissenting). The majority determined that the

two-part “purposeful, violent, and aggressive” test from Begay was applicable to crimes of strict

liability, negligence, and recklessness, whereas the statute at issue required a mens rea of

“knowingly” or “intentionally.” Id. at 2275.

Based on this line of cases, the Begay test is the dispositive test for determining whether a

crime of strict liability, negligence, or recklessness is a “violent felony” under the

ACCA. Recent federal court decisions affirm this principle by applying the Begay test in exactly

such situations. See United States v. Serafin, 562 F.3d 1005 (10th Cir. 2009) (holding that

possession of an unregistered firearm is not a crime of violence); see also United States v.

McGill, 618 F.3d 1273 (11th Cir. 2010) (holding that possession of a sawed-off shotgun is

not violent felony under the ACCA); see further United States v. Neal, 2012 U.S. App. LEXIS

25477 (10th Cir. Colo. Dec. 13, 2012); see further United States v. Pugh, 2011 U.S. Dist. LEXIS

23523 (N.D. Fla. Feb. 18, 2011).

Petitioner’s Prior Conviction for possession of an unregistered sawed-off shotgun was

under the National Firearms Act provisions found in 26 U.S.C. § 5861, which states that “[i]t

  25  

shall be unlawful for any person…to receive or possess a firearm which is not registered to him

in the National Firearms Registration and Transfer Record.” 26 U.S.C. § 5861. The National

Firearms Act (NFA) includes sawed-off shotguns in the definition of “firearm” for the purposes

of § 5861. Id. § 5845. The NFA statute does not require that the possession of an unregistered

firearm be knowing or intentional. See United States v. Decker, 292 F.2d 89 (6th Cir. 1961)

(holding that if the accused possesses such firearm, the offense is complete; it is not necessary

for the Government to prove that the defendant knowingly violated the law); see also Milentz v.

United States, 446 F.2d 111 (8th Cir. 1971) (finding that 26 U.S.C. § 5861 does not violate the

Due Process Clause by failing to require a specific intent to violate the law).

Since Petitioner’s Prior Conviction was a crime of strict liability, negligence, or

recklessness, it is exactly the type of crime to which the Supreme Court and lower courts have

consistently applied the Begay test. See Sykes v. United States, 131 S. Ct. 2267, 2275 (2011); see

also United States v. Serafin, 562 F.3d 1005 (10th Cir. 2009); United States v. McGill, 618 F.3d

1273 (11th Cir. 2010); see also United States v. Neal, 2012 U.S. App. LEXIS 25477 (10th Cir.

Colo. Dec. 13, 2012); United States v. Pugh, 2011 U.S. Dist. LEXIS 23523 (N.D. Fla. Feb. 18,

2011). This being the case, the applicable test to determine whether or not Petitioner’s Prior

Conviction is a “violent felony” under the ACCA is the two-prong Begay test.

ii. Under the Begay Test, the Crime of Possession of an Unregistered Sawed-Off Shotgun is Not A“Violent Felony” Under § 924(e)(2)(B) Because It Is Not “Similar In Kind As Well As In Degree of Risk Posed” to the Analogous Crimes in § 924(e)(2)(B)(ii).

As previously explained, the Begay test views an offense generally and uses a two-prong

analysis to determine whether or not the offense is a “violent felony” within the meaning of the

18 U.S.C. § 924(e)(2)(B)(ii). First, the Court looks to whether or not the offense involves

conduct that presents a serious potential risk of physical injury to another. See Begay, 553 U.S.

  26  

at 141. If it does not, then it is not a “violent felony.” If it does pose a serious potential risk, the

Court proceeds to the second prong, which inquires as to whether or not the crime at issue is

similar “in kind as well as in degree of risk posed” to the example crimes listed in 18 U.S.C. §

924(e)(2)(B)(ii). Id. at 143. These crimes are burglary, arson, extortion, and crimes involving

the use of explosives. 18 U.S.C. § 924(e)(2)(B)(ii). Crucially, the Court in Begay noted that a

common denominator between these crimes is that they involve the same “purposeful,

[‘]violent,[’] and [‘]aggressive[’] conduct.” Begay, 553 U.S. at 145.

While the Supreme Court has yet to examine the crime of possession of an unregistered

sawed-off shotgun in light of the 18 U.S.C. § 924(e)(2)(B)(ii), the application of the first prong

of the Begay test to this crime has been uniform among federal appellate courts. The Eleventh

Circuit held that such a crime presents a serious risk of potential physical injury to others. See

United States v. McGill, 618 F.3d 1273, 1276 (11th Cir. 2010); see also United States v. Owens,

447 F.3d 1345, 1347 (11th Cir. 2006) (stating that “the possession of certain kinds of weapons

categorically presents the potential risk of physical injury warranting the sentencing

enhancement”). The Eighth Circuit has come to the same conclusion. See United States v.

Vincent, 575 F.3d 820, 825 (8th Cir. 2009) (“Sawed-off shotguns are ‘inherently

dangerous’”). The Seventh Circuit took a similar position before the Begay decision was handed

down. See United States v. Upton, 512 F.3d 394, 404 (7th Cir. 2008) (finding that possession of

a sawed-off shotgun constitutes a “serious potential risk of physical injury to another” under 18

U.S.C. § 924(e)(2)(B)(ii) and U.S.S.G. § 4B1.2(a)(2)).

The Court of Appeals in the instant case agreed with these precedents. R. 10. Given this

uniformity of outcome among the lower courts, Petitioner Hinkley does not contest the

Thirteenth Circuit’s decision that his Prior Conviction satisfies the first prong of the Begay test.

  27  

When measuring Petitioner’s Prior Conviction against the second prong of the Begay test,

however, the Thirteenth Circuit concluded that it did not satisfy the standard and consequently is

not a “violent felony” under the ACCA. R. 11. The weight of case law supports their

judgment. In order to satisfy the second prong of the test, an offense must be “roughly similar,

in kind as well as in degree of risk posed” to the four example crimes enumerated in the statute’s

text: burglary, arson, extortion, and unlawful use of explosives. Begay, 553 U.S. at

143. Particular attention is to be paid to the theme of “purposeful, violent, and aggressive”

conduct which the Court has identified as a common thread among the example crimes.

Since the Begay decision was handed down, only two federal circuits have answered the

question of whether or not unlawful possession of a sawed-off shotgun constitutes a violent

felony under the ACCA. The Thirteenth Circuit opinion in this case relied heavily on the

Eleventh Circuit’s decision in United States v. McGill, which held that unlawful possession of a

sawed-off shotgun is not a “violent felony” under the ACCA’s residual clause. 618 F.3d 1273

(11th Cir. 2010). The Eleventh Circuit reasoned that “possession of a short-barreled shotgun is

not ‘similar in kind’ to ‘use of explosives,’ its closest enumerated analog, or to the other crimes

listed in the ACCA’s residual clause.” Id. at 1277. The McGill Court likewise reasoned that the

crime at issue was not similar in risk posed because it merely involved possession of a weapon,

as opposed to the example crime that involved the unlawful use of explosives, indicating

behavior that is significantly less “purposeful, violent, and aggressive.” Id. at 1277-

79. Therefore, the Eleventh Circuit also concluded that the unlawful possession of a sawed-off

shotgun is not a “violent felony” under 18 U.S.C. § 924(e)(2)(B)(ii). Id. at 1277.

The only other decision to address the precise question at issue was the Eighth Circuit

case United States v. Vincent, 575 F.3d 820 (8th Cir. 2009). The Vincent court properly applied

  28  

the Begay test and found that the unlawful possession of a sawed-off shotgun did in fact satisfy

the second prong. Id. However, a key distinction immediately emerges. In the Vincent case, the

statute required proof of mens rea. Id. at 826 (citing Arkansas v. Setzer, 302 Ark. 593 (1990))

(“Unlike DUI, a strict liability crime, conviction under this Arkansas statute requires proof of

mens rea”). Indeed, the mens rea requirement in the Arkansas statute was a crucial basis for the

Vincent court’s decision. See Vincent, 575 F.3d at 827 (citing United States v. Zuniga, 553 F.3d

1330, 1334-35 (10th Cir. 2009)). Thus, the Thirteenth Circuit’s reliance on McGill is justified

because it is more relevant to the instant case than Vincent.

As previously stated, no other federal appellate courts have applied the Begay test to the

precise question at issue. The court in United States v. Upton held that unlawful possession of a

sawed-off shotgun was a “violent felony” under the ACCA. 512 F.3d 394 (7th Cir.

2008). However, since the decision was handed down before Begay, the Court only looked to

whether the crime might fit the literal language of the residual clause. Id. at 404.

On the other hand, several cases have applied the Begay test to crimes similar to

Petitioner’s Prior Conviction. In United States v. Serafin, the Tenth Circuit concluded that the

possession of an unregistered firearm under 26 U.S.C. § 5861—the same statute under which

Petitioner Hinkley was convicted—was not a crime of violence for sentencing purposes. 562

F.3d 1105, 1114 (10th Cir. 2009). The Court noted that “the unlawful act of possession does not

[‘]by its nature[’] involve a substantial risk that physical force will occur in the course of

committing the offense.” Id. The Court in United States v. Pugh reached largely similar

conclusions. 2011 U.S. Dist. LEXIS 23523 (N.D. Fla. Feb. 18, 2011). In United States v.

Archer, the Eleventh Circuit held that, under Begay, carrying a concealed weapon in public was

not a “violent felony” under the ACCA. 531 F.3d 1347 (11th Cir. 2008). These federal

  29  

precedents are examples of how crimes similar in kind and degree to Petitioner’s Prior

Conviction have been adjudged to fall outside the purview of 18 U.S.C. § 924(e)(2)(B)(ii) under

the Begay test. Like the McGill Court, several of these found the distinction between “use” and

“possession” to be significant in determining whether a crime is a “violent felony” under the

ACCA.

These factors indicate that Petitioner’s Prior Conviction for the crime of possessing an

unregistered sawed-off shotgun is not “similar in kind and in degree of risk posed” to the

example crimes in 18 U.S.C. § 924(e)(2)(B)(ii) nor displays the same level of “purposeful,

violent, and aggressive” behavior exhibited by burglary, arson, extortion, or the unlawful use of

explosives. Holding that possession of a firearm is a “violent felony” under the ACCA would

unduly expand the scope of the ACCA’s residual clause beyond its intended limits. Accordingly,

the Thirteenth Circuit was correct in its decision that Petitioner’s Prior Conviction fails the

second prong of the Begay test and thus is not a “violent felony” under the ACCA.

B. Since There Is Statutory Vagueness Regarding Whether or Not Possession of an Unregistered Sawed-Off Shotgun Constitutes A “Violent Felony” Under 18 U.S.C. § 924(e)(2)(B), the Long-Standing Doctrine of Lenity Advises That the Court Should Choose the Interpretation Favorable to the Defendant.

The doctrine of lenity reaches back all the way to the beginnings of American criminal

jurisprudence. See United States v. Wiltberger, 18 U.S. 76 (1820). In United States v. Bass, the

Court explained that the doctrine of lenity is guided by two key principles. 404 U.S. 336, 348

(1976). First, “a fair warning should be given to the world in language that the common world

will understand, of what the law intends to do if a certain line is passed. To make the warning

fair, so far as possible the line should be clear.” Id. (citing McBoyle v. United States, 283 U.S.

25, 27 (1931)). Second, “because of the seriousness of criminal penalties, and because criminal

punishment usually represents the moral condemnation of the community, legislatures and not

  30  

courts should define criminal activity.” Bass, 404 U.S. at 348. As a result, “[t]he Court has

often stated that when there are two rational readings of a criminal statute, one harsher than the

other, we are to choose the harsher only when Congress has spoken in clear and definite

language.” McNally v. United States, 483 U.S. 350, 359-60 (1987).

The Court has consistently recognized that the doctrine of lenity applies to statutory

sentencing provisions. See United States v. Batchelder, 442 U.S. 114, 121 (1979). See also

United States v. Curtis, 511 U.S. 485, 510 (1994) (Souter, J., dissenting) (“[The] policy of lenity

[also] means that the Court will not interpret a federal criminal statute so as to increase the

penalty that it places on an individual when such an interpretation can be based on no more than

a guess as to what Congress intended."); see further Albernaz v. United States, 450 U.S 333, 342

(1981) ("[T]he rule of lenity is a principle of statutory construction which applies not only to

interpretations of the substantive ambit of criminal prohibitions, but also to the penalties they

impose.").

Sufficient ambiguity is present in the residual clause of the ACCA to justify the

invocation of the doctrine of lenity. The partial definition of “violent felony” as a crime that

“otherwise involves conduct that presents a serious potential risk of physical injury to another” is

unclear with regard to what crime—or even what type of crime—will fall therein. 18 U.S.C. §

924(e)(2)(B)(ii). This is evidenced by the Court’s recent reactions to attempted interpretations of

this provision. In a concurring opinion in Chambers, Justice Alito asserted that the “ACCA's

residual clause is nearly impossible to apply consistently.” Chambers, 555 U.S at 133 (Alito, J.,

concurring). With regard to the Court’s most recent interpretation of the ACCA’s residual clause

in Sykes, Justice Scalia remarked that the majority opinion “produces a fourth ad hoc judgment

that will sow further confusion….We should admit that ACCA's residual provision is a drafting

  31  

failure and declare it void for vagueness.” Sykes at 2284 (Scalia, J., dissenting). Justice Scalia

went on to remark that it is unclear which of the residual clause’s enumerated offenses most

closely resembles other crimes, such as possession of a sawed-off shotgun. Id. at 2285. He later

proceeded to question whether the statute gives sufficient notice to be constitutional. Id. at 2287.

Given the confusing nature of the ACCA’s residual clause and the negative effects it had

on the fundamental policy principles of notice and judicial deference, the ambiguity found in 18

U.S.C. § 924(e)(2)(B)(ii) should be “resolved in favor of lenity.” Rewis v. United States, 401

U.S. 808, 812 (1971). Accordingly, the Court must resolve the ambiguity in favor of Hinkley

and affirm the Court of Appeals decision to reverse Hinkley’s sentencing under the ACCA.

CONCLUSION

For the foregoing reasons, Petitioner respectfully asks this Court to reverse the Court of Appeals

decision regarding the permissibility of Officer Sanford’s protective sweep and affirm the Court

of Appeals decision to vacate Petitioner’s sentence under the ACCA.

Respectfully submitted this the 6th day of March 2013.

/s/Team 28