Proof of knowledge of shotgun’s barrel length is not required for application of sentencing guidelines provisions pertaining to shotguns

SENTENCING United States v. Saavedra, No. 07-2192, ___ F.3d ___ (10th Cir. May 1, 2008)(New Mexico). Appeal of sentence for being an addict or unlawful user of a controlled substance in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(3) HELD: (1) Application of Sentencing Guideline § 2K2.1(a)(5), which provides base offense level of 18 for possession of shotgun with barrel shorter than 18 inches, does not require showing that defendant knew barrel was shorter than 18 inches. Unlike element of conviction, showing of knowledge is not required for either statutory or guidelines sentencing provisions. Under USSG § 2K2.1(a)(5), therefore, it is enough for the government to show that weapon’s characteristics fall within guideline. (2) District court erred in determining defendant’s criminal history category by including municipal ordinance firearms conviction in calculation. Local ordinance violation may be included in defendant’s criminal history calculation only if it would also constitute violation of state law. In this instance, violation of ordinance might or might not have been violation of state law. Presentence Report contains no evidence detailing which section of ordinance defendant violated, nor does it show nature of conduct of which he was a convicted, nor did district court conduct any inquiry into the matter. Under these circumstances, where it is not possible to determine whether violation of ordinance also constituted violation of state law, district court committed procedural error in calculating defendant's criminal history category. Read the opinion here.