                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 11-3090
                                  ___________

United States of America,              *
                                       *
                Appellee,              *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * District of Nebraska.
Robert E. Lillard,                     *
                                       *
               Appellant.              *
                                  ___________

                             Submitted: May 15, 2012
                                Filed: July 19, 2012
                                 ___________

Before MURPHY, BENTON, and SHEPHERD, Circuit Judges.
                           ___________


BENTON, Circuit Judge.
       Robert Edward Lillard moved to vacate his sentence, invoking Begay v. United
States, 553 U.S. 137 (2008). See 28 U.S.C. § 2255. The district court1 denied the
motion. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.


      This court reviews the denial of a § 2255 motion de novo. Hodge v. United
States, 602 F.3d 935, 937 (8th Cir.), cert. denied, 131 S. Ct. 334 (2010). Also


      1
         The Honorable Joseph F. Bataillon, United States District Judge for the
District of Nebraska.
reviewed de novo is whether a prior conviction qualifies as a predicate offense under
the Armed Career Criminal Act (ACCA). See United States v. Gordon, 557 F.3d
623, 624 (8th Cir. 2009).


      Before his latest conviction for unlawful possession of a short shotgun, Lillard
had been convicted of attempted robbery, robbery, and possession of a short shotgun.
The ACCA imposes a mandatory minimum penalty of 15 years if a felon-in-
possession-of-a-firearm has “three previous convictions” for a “violent felony.” 18
U.S.C. § 924(e)(1). At sentencing, the district court found that all Lillard’s prior
convictions were “violent felonies.” This court affirmed. See United States v.
Lillard, 116 Fed. Appx. 49 (8th Cir. 2004).


      The ACCA defines a “violent felony” as a crime punishable by a term of
imprisonment exceeding one year 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.

§ 924(e)(2)(B). Lillard questions whether his previous conviction for possession of
a short shotgun is a “violent felony.” The Nebraska statute states that “any person
or persons who shall transport or possess any machine gun, short rifle, or short
shotgun” commits a felony. § 28-1203(1). Possession of a short shotgun does not
have an element of physical force as required in clause (i) and is not listed in clause
(ii). The issue in this case is whether possession of a short shotgun is a “violent
felony” because it “involves conduct that presents a serious potential risk of physical
injury to another.” § 924(e)(2)(B).




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       To determine whether a conviction falls within this residual clause, the
Supreme Court identifies its “closest analog” among the listed offenses and then
assesses their equivalent risks. James v. United States, 550 U.S. 192, 193 (2007)
(concluding that attempted burglary poses the same risk of violence as burglary).
When comparing an offense to its closest analog, the Court considers the “offense
generically” – not the circumstances of a specific violation. United States v. Boaz,
558 F.3d 800, 807 (8th Cir. 2009), quoting Begay, 553 U.S. at 141 (viewing the
offense categorically “in terms of how the law defines the offense and not in terms
of how an individual offender might have committed it on a particular occasion”).
The residual clause includes those crimes “roughly similar, in kind as well as in
degree of risk posed, to the examples themselves.” Begay, 553 U.S. at 143. The
Begay Court found that all the listed crimes involve conduct that makes an offender,
later possessing a gun, more likely to deliberately harm a victim. Id. at 145 (holding
that DUI is unlike the listed crimes), at 146 (noting that the ACCA focuses on the
“special danger” created when violent offenders possess guns). See also Chambers
v. United States, 555 U.S. 122, 123 (2009) (failing to report for confinement is
inaction, unlike the conduct inherent in the listed crimes). If the crime categorically
presents a risk like those listed, then it “involves conduct that presents a serious
potential risk of physical injury to another.” Sykes v. Unites States, 564 U.S. __, __,
131 S. Ct. 2267, 2276 (2011) (fleeing-from-police-in-a-vehicle categorically presents
“a more certain risk” than burglary).


      The district court here determined that possession of a short shotgun is
“roughly similar, in kind as well as degree of risk posed” to the listed offenses in
clause (ii). See United States v. Vincent, 575 F.3d 820 (8th Cir. 2009), applying
Begay2 and Chambers. Lillard contends that the offense at issue - possession of a

      2
       In this case, the government assumes Begay’s retroactivity because the rule
appears to be substantive. Welch v. United States, 604 F.3d 408, 414-15 (7th Cir.
2010) (finding Begay applied retroactively because a statutory rule increasing the
allowable sentence on the basis of a prior conviction is substantive in nature), cert.

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short shotgun - is a crime of strict liability, and that Sykes directs a court also to
evaluate whether the offender’s conduct was “purposeful, violent, and aggressive.”
Lillard’s premise is wrong: Nebraska law requires “willful, intentional, and
knowing” possession of a short shotgun. State v. Jasper, 467 N.W.2d 855, 862 (Neb.
1991). A defendant unlawfully possesses a short shotgun when the defendant knows
of its nature as well as its presence, and has dominion or control over the gun.3 See
id. at 861 (holding that the proof-of-possession standard for controlled substances
applies to illegal firearms); cf. NJI2d Crim. 4.2 (“‘Possession’ of (here insert object
allegedly possessed) means either knowingly having it on one's person or knowing
of the object's presence and having control over the object”). Only when an offense
is “akin to strict liability, negligence, and recklessness crimes” must a court inquire
into the purposeful, violent, and aggressive nature of the offense; otherwise, risk is
the dispositive factor. Sykes, 131 S. Ct. at 2275-76. Possession of a short shotgun in
Nebraska is not a crime of strict liability, negligence, or recklessness. Further inquiry
into the nature of Lillard’s conduct is “redundant with the inquiry into risk.” Id. at
2275; see United States v. Watson, 650 F.3d 1084, 1093 (8th Cir. 2011) (applying
Sykes to conclude that possession of a firearm during drug trafficking is not a crime
of strict liability, negligence, or recklessness, and does not require a “purposeful,
violent, and aggressive” inquiry).




denied, 131 S. Ct. 3019 (2011), interpreting Schriro v. Summerlin, 542 U.S. 348,
351-52 (2004) (“[n]ew substantive rules generally apply retroactively”). See
generally Sun Bear v. United States, 644 F.3d 700, 703 (8th Cir. 2011) (en banc)
(recognizing the United States has conceded retroactivity in previous § 2255
proceedings).
      3
       Lillard constructively possessed a short shotgun, but Nebraska law treats
constructive possession and possession equally. See State v. Frieze, 525 N.W.2d 646,
653 (Neb. 1994) (“constructive possession applies to possession of a short shotgun
under § 28–1203”).

                                          -4-
         Possession of a short shotgun in Nebraska categorically presents a degree of
risk roughly similar to the listed offenses. Short shotguns are inherently dangerous
because they are not useful “except for violent and criminal purposes.” United States
v. Childs, 403 F.3d 970, 971 (8th Cir. 2005), quoting United States v. Allegree, 175
F.3d 648, 651 (8th Cir. 1999) (possession of a short shotgun is a “crime of violence
under U.S.S.G. § 4B1.2"). Possession of a short shotgun indicates that the offender
“is ‘prepared to use violence if necessary’ and is ready ‘to enter into conflict, which
in turn creates a danger for those surrounding’” the offender. United States v. Boyce,
633 F.3d 708, 712 (8th Cir. 2011) (holding that possession of a weapon in a
correctional facility creates danger like the listed offenses), quoting United States v.
Zuniga, 553 F.3d 1330, 1335–36 (10th Cir. 2009), cert. denied, 132 S. Ct. 1002
(2012). See also United States v. Marquez, 626 F.3d 214, 221 (5th Cir. 2010)
(possession of a dangerous weapon is purposeful conduct that creates a risk for future
violence); but see United States v. Polk, 577 F.3d 515 (3d Cir. 2009) (holding that
possession of a dangerous weapon is passive and does not involve purposeful,
violent, and aggressive conduct). Possession of a short shotgun presents a “risk as
a categorical matter” at least equal to attempted burglary and fleeing from police in
a vehicle – both “violent felonies” for the purposes of ACCA. James, 550 U.S. at
212; Sykes, 131 S. Ct. at 2274. Possession of a short shotgun creates an extreme
“likelihood that the offender is the kind of person who might deliberately point the
gun and pull the trigger.” Id., quoting Begay, 553 U.S. at 146 (quotations omitted).
It is illegal to possess a short shotgun “precisely because it enables violence or the
threat of violence.” Vincent, 575 F.3d at 825-26. A felon possessing a weapon with
no lawful purpose creates a serious potential for danger to others. See id. at 825.


       The district court reasoned that possession of a short shotgun is roughly similar
in kind to the use of explosives. Lillard objects that the use of explosives has
collateral consequences “not present to the same degree or certainty in the mere
possession of a firearm.” Short shotguns, however, are analogous to explosives in



                                          -5-
that both can inflict “indiscriminate carnage.” Id. at 826; see United States v. Upton,
512 F3d 394, 404 (7th Cir. 2008) (“[T]he shortened barrel . . . increases the spread of
the shot when firing at close range—[a fact] that spurred Congress to require the
registration of all sawed-off shotguns, along with other dangerous weapons like
bazookas, mortars, pipe bombs, and machine guns.”); United States v. Hall, 972 F.2d
67, 70 (4th Cir. 1992) (a short shotgun is “easier to conceal and wield”). The
Sentencing Commission has declared that possession of a sawed-off shotgun – and
the use of explosives – are “crimes of violence,” a term interchangeable with “violent
felonies.” Vincent, 575 F.3d at 826, citing U.S.S.G. § 4B1.2, cmt. n. 1 (“crime of
violence” includes “[u]nlawfully possessing a firearm described in 26 U.S.C. §
5845(a) (e.g., a sawed-off shotgun or sawed-off rifle, silencer, bomb, or machine
gun)”); see United States v. Hood, 628 F.3d 669, 672 (4th Cir. 2010) cert. denied,
131 S. Ct. 2138 (2011) (citing U.S.S.G. § 4B1.2, cmt. n. 1 to support that felony-
short-shotgun-possession is a “crime of violence”), following United States v.
Hawkins, 554 F.3d 615, 618 (6th Cir. 2009). But see United States v. McGill, 618
F.3d 1273, 1279 (11th Cir. 2010) (holding that possession of a short-barreled shotgun
is not “similar in kind” to the use of explosives because of the different meaning
between “possess” and “use”). Possession of a short shotgun presents the type of
danger similar in kind to the use of explosives.


      Possession of a short shotgun presents a serious potential risk of physical injury
to another because it is roughly similar to the listed offenses within the ACCA, both
in kind as well as the degree of risk for harm posed. Lillard’s possession of a short
shotgun is a violent felony.


                                       *******
      The judgment of the district court is affirmed.
                      _________________________________



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