                NOT-RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 14a0232n.06

                                           No. 13-5780
                                                                                         FILED
                                                                                   Mar 27, 2014
                          UNITED STATES COURT OF APPEALS
                                                                               DEBORAH S. HUNT, Clerk
                               FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                               )
                                                        )
       Plaintiff-Appellee,                              )
                                                        )
v.                                                      )   ON APPEAL FROM THE
                                                        )   UNITED STATES DISTRICT
EARNEST RAY ADAMS,                                      )   COURT FOR THE EASTERN
                                                        )   DISTRICT OF KENTUCKY
       Defendant-Appellant.                             )


BEFORE: KEITH, SILER, and ROGERS, Circuit Judges

       DAMON J. KEITH, Circuit Judge. Defendant Earnest Ray Adams pleaded guilty to

possessing cocaine with the intent to distribute and to being a felon in possession of a firearm. The

district court found that Adams’ weapon, a shotgun with a shortened barrel and removed stock, was

a “destructive device,” applied a two-level sentencing enhancement to his base offense level, and

sentenced him to 130 months of imprisonment. On appeal, Adams argues that the sentencing

enhancement was improper because his weapon falls under the “shotgun shell” exception in

26 U.S.C. § 5845(f)(2). For the reasons set forth below, we AFFIRM.

                                       I. BACKGROUND

       Earnest Ray Adams was arrested for trafficking in cocaine. Officers located a Harrington

& Richardson 12-gauge short-barreled shotgun and several bags of cocaine under a mattress in the

bedroom of his residence. Adams subsequently pleaded guilty to knowingly and intentionally

possessing with the intent to distribute a mixture or substance containing a detectable amount of

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cocaine, a Schedule II controlled substance, in violation of 21 U.S.C. § 841(a)(1), and knowingly

possessing a firearm after being convicted of a felony, in violation of 18 U.S.C. § 922(g)(1).

           At sentencing, the district court applied a two-level enhancement to Adams’ base offense

level, finding that his weapon was a “destructive device” as defined in 26 U.S.C. § 5845(f). Adams

now appeals, arguing that the district court’s sentencing enhancement was improper as his weapon

falls under the “shotgun shell” exception codified in 26 U.S.C. § 5845(f)(2).

                                     II. STANDARD OF REVIEW

           This Court reviews the district court’s factual findings regarding the application of the

firearms enhancement for clear error. United States v. Johnson, 344 F.3d 562, 565 (6th Cir. 2003).

We review conclusions of law, however, including whether the enhancement for possessing a

destructive device was proper, de novo. United States v. Ward, 506 F.3d 468, 474 (6th Cir. 2007).

                                             III. ANALYSIS

           The only issue before this Court is whether a shotgun with a shortened barrel and removed

stock is a “destructive device” for sentencing guidelines purposes.               The Sentencing

Guidelines provide for a two-level enhancement to the base offense level if the offense involves a

“destructive device.” U.S.S.G. § 2K2.1(b)(3). A destructive device is defined by statute, in relevant

part, as

           any type of weapon by whatever name known which will, or which may be readily
           converted to, expel a projectile by the action of an explosive or other propellant, the
           barrel or barrels of which have a bore of more than one-half inch in diameter, except
           a shotgun or shotgun shell which the Secretary finds is generally recognized as
           particularly suitable for sporting purposes.

26 U.S.C. § 5845(f)(2) (emphasis added).




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        Adams contends that his firearm is “specifically excluded” from the definition of destructive

device because it is only capable of firing a shotgun shell.1 This argument is unavailing, however,

because as the district court concluded and the parties concede, Adams’ weapon, as modified, is not

a shotgun, as it was not intended to be fired from the shoulder. The weapon is also quite obviously

not a shotgun shell.

        Further, Section 5845(f) only exempts shotguns and shotgun shells “which the Secretary

finds [are] generally recognized as particularly suitable for sporting purposes.” 26 U.S.C. §

5845(f)(2); see also United States v. Wynn, 365 F.3d 546, 552 (6th Cir. 2004), vacated on other

grounds by Wynn v. United States, 543 U.S. 1102 (2005) (“[T]he only types of firearms that are not

considered destructive devices for the purposes of U.S. Sentencing Guidelines § 2K2.1 are those that

are used ‘solely for sporting, recreational, or cultural purposes,’ or, by necessary inference, ones that

have a bore of one-half inch or less in diameter.”) (citations omitted).

        We have previously held that sawed-off shotguns do not fall within the “sporting purposes”

exception and Adams has put forth no argument to the contrary. See United States v. Wynn, 191 F.

App’x 393, 394 (6th Cir. 2006). Indeed, as the Seventh Circuit explained in United States v. Miller,

the weapon’s modifications actually made it more dangerous and less likely that it would be used

for sporting or recreational purposes:

        People do not shorten their shotguns to hunt or shoot skeet. Instead, the shortened
        barrel makes the guns easier to conceal and increases the spread of the shot when
        firing at close range—facts 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.




              1
                  That Adams’ weapon is only capable of firing a single 12-gauge shotgun shell is not in dispute.

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721 F.3d 435, 442 (7th Cir. 2013) (quoting United States v. Upton, 512 F.3d 394, 404 (7th Cir.

2008); see also United States v. Shaw, 670 F.3d 360, 368-69 (1st Cir. 2012) (Boudin, J., concurring)

(“Sawed-off shotguns are notoriously associated not with hunting but with crime.”).

       Because Adams’ weapon was neither a shotgun nor a shotgun shell, and because it could not

be used “solely for sporting, recreational, or cultural purposes,” the district court’s two-level

enhancement was proper. The judgment of the district court is AFFIRMED.




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