
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 96-1981                                    UNITED STATES,                                      Appellee,                                          v.                        EDWIN FORTES, AKA CHARLES BROOKSHIRE,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                  [Hon. George A. O'Toole, Jr., U.S. District Judge]                                                ___________________                                 ____________________                                        Before                           Selya and Lynch, Circuit Judges,                                            ______________                         and Pollak,* Senior District Judge.                                      _____________________                                _____________________               Robert Godfrey, by appointment of the Court, for appellant.               ______________               Timothy Q.  Feeley, Assistant  United States  Attorney, with               __________________          whom Donald K. Stern, United States Attorney and  Antoinette E.M.               _______________                              _______________          Leoney,  Assistant  United  States Attorney,  were  on  brief for          ______          appellee.                                 ____________________                                   January 14, 1998                                 ____________________                                        ____________________          *     Of  the  Eastern  District  of   Pennsylvania,  sitting  by          designation.                    POLLAK, Senior  District Judge.  This appeal challenges                    POLLAK, Senior  District Judge.                            ______________________          the  conviction and  the  subsequent  sentence  of  Edwin  Fortes          (a.k.a.  Charles Brookshire).  A four-count indictment, handed up          on December 6,  1995, charged that on January 13, 1994 Fortes (1)          was a felon  in possession of firearms and  ammunition (18 U.S.C.            922(g)(1));  (2) possessed a firearm with an obliterated serial          number (18 U.S.C.   922(k)); (3) possessed cocaine with intent to          distribute  (21 U.S.C.    841(a)(1));  and (4)  used and  carried          firearms during  and in  connection with  the cocaine  possession          alleged in  count 3 (18 U.S.C.   924(c)(1)).   Prior to trial the          fourth count  was dropped. In  May of 1996, having  waived a jury          trial, Fortes was tried to the bench on counts 1, 2 and 3.  After          a week's trial Fortes was found guilty on all three counts.                      Fortes  was sentenced  in July  of  1996. Finding  that          under count 1 -- felon in possession of firearms and ammunition -          - Fortes was subject to  enhanced penalties pursuant to the Armed          Career Criminal Act (ACCA), 18  U.S.C.   924(e)(1), and the armed          career  criminal  sentencing  guideline,  U.S.S.G.    4B1.4,  the          district court sentenced Fortes to a prison term of 262 months on          count 1.  The district court also imposed concurrent sentences of          60 months on count 2 and 262 months on count 3.                    On  appeal  Fortes  challenges several  aspects  of his          conviction  and sentence.   Two  of  the issues  he raises  merit          discussion.  To these we now turn.                                         -2-                                          I.                    Fortes  argues that findings made by the district court          in connection with the conviction  under count 3 -- possession of          cocaine with  intent  to distribute  -- are  incompatible with  a          verdict of guilty.  Fortes' precise contention is that certain of          the  district  court's  findings  are  directly at  odds  with  a          conclusion  that, within the intendment of 21 U.S.C.   841(a)(1),          he "knowingly" possessed the particular  units of cocaine that he          was charged with possessing.                     The cocaine  in question  consisted of  nine "jums"  --          wrapped packages of  crack. Law enforcement officers  executing a          search  warrant on January 13,  1994, at Fortes' aunt's apartment          at 5  Cardington Street in  the Roxbury section of  Boston, found          the  jums  on a  bureau  located in  a  guest room  frequented by          Fortes.1 The search marked  the culmination of several  months of                                        ____________________          1    The  district  court s  findings  with  respect  to  Fortes           connection with  the  guest room  in  his aunt s  apartment  were          these:                      The execution of the search warrant yielded                    not  only  the  evidence  of  the  contraband                    itself but evidence that established, I think                    powerfully, the  defendant s presence  in the                    premises  on  the first  floor  of Cardington                    Street  and  his  ability  and  intention  to                    exercise control  over items in what has been                    variously called the  guest room or  Chucky s                    room, that is, the  room on the right as  you                    enter the building.                      In  particular, there was a large number of                    defendant s  personal papers.   They  weren t                    simply  historical  papers,   but  they  were                    current operational papers.                                         -3-          law enforcement efforts  inquiring into drug-and-firearms-related          activities  of Fortes and others at  the Roxbury apartment. These          law enforcement efforts included two controlled drug transactions          in  which  cocaine  was  sold  at  the  Roxbury  apartment  to  a          confidential informant: in the first transaction, in September of          1993, Fortes was the seller;  in the second transaction, in early          January of 1994, a Fortes confederate was the seller.                     The district  court made extended findings with respect          to  the three  counts of  conviction  -- felon  in possession  of          firearms   and  ammunition;  possession  of  a  firearm  with  an          obliterated  serial number; and possession of cocaine with intent          to distribute. In order fairly to assess Fortes' challenge to his          conviction on the cocaine-possession count it will  be helpful to          quote  the entirety  of  the district  court's  findings on  that          count.  To place those findings in proper context, the concluding          portions  of the  district court's  preceding  discussion --  the          discussion of the two firearms counts -- will also be set forth:                                        ____________________                      Among the  papers  were his  current  --  I                    think the  most recent  one was  in December,                    report   to  his   probation  officer   which                    included  copies  of   his  paychecks  earned                    through the month  of December and,  I think,                    in fact,  into January, indicating  that even                    in January  1994, defendant had a present and                    ongoing connection with that room by treating                    it  as a repository  for papers that  were of                    some importance to him.                      I  may  note  that  the  defendant  in  his                    probation reports or reports to the probation                    supervising probation  officer reported  that                    his residence was 5 Cardington Street.                                         -4-                    So  with  respect to  Count  1,  I find  that  the               defendant did have constructive possession of the items               alleged in Count 1.                    Now, let me just say that possession may well have               been  joint.   I'm  not  called  upon to  decide  fully               whether  it  was  joint.    It's  sufficient  that  the               defendant has possession.   The evidence does  indicate               that it was  joint with others, perhaps,  because other               people came and went at the same time.                    And,  of course, question  of ownership is  not at               issue.    Possession  is to  be  determined  apart from               ownership, some preference  as to whose guns  they were               and that is, I think, legally beside the point.                    With respect to  Count 2, Count  2 relates to  the               weapon  with the obliterated  serial number.   That was               the Interdynamic semiautomatic pistol.  It was found in               the right-hand bedroom  and is one of the  items that I               conclude   the   defendant   constructively   possessed               knowingly.                    I reach essentially similar conclusion [sic]  with                                                            ___               respect  to   Count  3  which   alleges  the  defendant               possessed  a  controlled substance  knowingly  with the               intent to distribute it.                    First  of  all, I  think  it's clear  that  it's a               controlled  substance.  I've read the  report of one of               the items.  I don't know if  it matters the other [sic]                                                                  ___               weren't  analyzed, whether the  one is cocaine  base, I               don't think  it matters  the others are  not.   I don't               think it matters.                    Applying the  same  principles  of  possession,  I               would conclude from defendant's participation in a drug               sale in September that he knew  that was a drug-selling               place  and that  he  intended  to  participate  in  it,               intended to possess  the drugs that were  available for               sale within the premises from time to time; and that as               a willing, knowing  participant in  that conspiracy  to               sell drugs as well as firearms, the defendant knew that               drugs, particularly  cocaine base,  would be  available               and would be sold.                    And I find  further that he  had the intention  to               exercise control over -- perhaps jointly with others --               over such  drugs as were  in the apartment for  sale at               any given time through the date of the indictment, date               alleged in the indictment.  I'm sorry, through the date               alleged in the Count 3 in the indictment.                                         -5-                    I may say  that I do not find  that the government               has proved beyond a reasonable doubt that the defendant               knew of these  specific nine items being on  top of the               bureau at the particular time.                    There's  not evidence that the defendant was there               in such a  time -- in proximity  to the search  that he               knew  specifically  that there  were  nine individually               wrapped jums on top of the bureau.                    I  don't think  that is  necessary  because of  my               conclusion that  he knew of  the presence of  crack for               sale  in the premises generally and intended to possess               that which was present.                    But to  the extent  that may  make any  difference               legally, I mention that; and I'm not convinced that  he               knew of  those specific items.  And I distinguish those               from  the firearms, for  example, because I  think much               more  likelihood,  likely that  that  was a  transitory               condition,  that nine  individually  wrapped jum  doses               would  not remain  very long  on  the top  of a  bureau               whereas I think  firearms stored in safes and behind --               in  briefcases behind cabinets,  so on, so  forth, were               there for longer term storage.                    But it's  not clear who  in the events of  the day               may have deposited  those individual  packages and  for               how  long  they were  there.    I  could not  find  the               defendant knew of those specifically, but I don't think               that's necessary to the proof.                    I think that it's sufficient for the government to               have proved participation  in the conspiracy  which was               the sale of  cocaine, cocaine base, knowing  that there               would be a supply  and that intended to participate  in               that by  possessing  and exercising  control  over  the               supply as it may been from time to time.                    I find  further that  possession by  the defendant               was with the intent to distribute.  I find from all the               evidence that sales  was [sic] going on,  including his                                         ___               own participation in the sale and in  addition from the               evidence the defendant  himself did not use  cocaine or               cocaine  base  so  that  the  element  --  I  find  the               government  has  proved  possession with  intention  to               distribute.                    Fortes  argues that  the key  to  the district  court's          finding  that  he knowingly  possessed  cocaine  was "that  as  a                                         -6-          willing, knowing participant in that  conspiracy to sell drugs as          well as  firearms, the  defendant knew  that drugs,  particularly          cocaine base, would be available and would be sold."  Fortes goes          on to  point out that he was not  charged with participation in a          conspiracy.       In   arguing    that   the   district   court's          characterization of him  as a conspirator undercuts  the district          court's  verdict on the possession count, Fortes invokes language          of  this court in  United States v.  Zavala Maldonado,  23 F.3d 4                             _____________     ________________          (1st  Cir.), cert.  denied, 115  S.  Ct. 451  (1994).   Defendant                       _____________          Zavala --  like Fortes  in the case  at bar  -- was  charged with          possession of cocaine with intent to distribute.  And in Zavala's          case,  we   pointed  out   that,  "given   that  these   offenses          [conspiracy,  and  aiding  and  abetting  an  attempt]  were  not          charged,  it  is  hardly  sufficient  to  say  that  this  record                                                               ____          contained evidence to  support such a  conviction," and we  there          went on  to state that  "the conviction for possession  can stand          only if a reasonable jury could find that Zavala did possess  the          cocaine within the meaning of 21 U.S.C.   841."  Id. at 6.                                                           __                    It  is  true that  here,  as  in Zavala  Maldonado,  no                                                     _________________          conspiracy charge was laid against  the defendant.  Thus here, as          there,  a   charge  of   possession  could   not  be  proved   by          demonstrating vicarious accountability --  i.e., possession by  a          co-conspirator  is  not  possession by  the  defendant  where the          defendant has  not been charged  with conspiracy.   But --  as in          Zavala  Maldonado, so here -- proof of the defendant's possession          _________________          rested  on  the defendant's  own  conduct,  not  on that  of  co-                                         -7-          conspirators.  To be sure, in the case at bar the  district court          referred to Fortes' participation in a "conspiracy to  sell drugs          as well  as firearms,"  but the district  court also  referred to          "defendant's  participation in  a  drug  sale  in  September  [of          1993],"  a datum  from  which the  district  court inferred  that          Fortes "knew that  was a drug-selling place and  that he intended          to participate  in it,  intended to possess  the drugs  that were          available  for  sale within  the  premises  from time  to  time."          Furthermore,  the  district  court noted  that  execution  of the          January 13, 1994 search warrant "established, I think powerfully,          the defendant's  presence in the  premises on the first  floor of          Cardington  Street  and  his ability  and  intention  to exercise          control over  items in what  has been variously called  the guest          room or Chucky's room." See note 1, supra. Given the plenitude of                                  ___         _____          these findings, and the fact that crack -- like any other drug of          a  particular kind --  is an essentially  fungible commodity, the          possibility  that at  the time  of  the January  13, 1994  search          Fortes may  not have  known  "specifically that  there were  nine          individually  wrapped  jums  on  top  of  the  bureau"  does  not          destabilize the district court's verdict.  What is dispositive is          the district  court's "conclusion  that he  [Fortes] knew of  the          presence of crack for sale in the premises generally and intended          to  possess  that  which  was  present"  --  a  conclusion  amply          supported by the evidence.2                                        ____________________          2   The district court s  amply supported conclusion also renders          inapposite Fortes   reliance  on our  cautionary observation  and          guidance in  United States v. Booth, 111 F.3d 1 (1st Cir.), cert.                       _____________    _____                         _____                                         -8-                                         II.                    Fortes'  conviction   on  the   felon-in-possession-of-          firearms-and-ammunition count, under 18  U.S.C.   922(g)(1), gave          rise  to  a  prison  sentence   on  that  count  of  262  months,          substantially  in  excess  of the  ten-year  maximum  term which,          pursuant  to 18 U.S.C.    924(a)(2), ordinarily  sets a cap  on a          sentence of incarceration  for a violation of    922(g)(1).  This          lengthier   sentence  was   based   on   the   district   court's          determination that, given Fortes'  criminal history, the ten-year          maximum term was  required to be enhanced by virtue  of the Armed          Career Criminal Act (ACCA), 18  U.S.C.   924(e)(1), and the Act's          companion  sentencing   guideline,  U.S.S.G.      4B1.4.   Fortes          challenges  that determination,  raising  questions of  law  with          respect to which our review is plenary.                                        ____________________          denied, 118 S. Ct. 204 (1997).   There the jury was charged  that          ______          an inference of  constructive possession was permissible  "when a          person knowingly has the  power and the intention at a given time          of exercising  dominion and  control over an  object or  over the                                                               ____________          area in  which the  object is located."   Id.  at 2  (emphasis in          _____________________________________     __          original).  While  acknowledging that "knowledge can  be inferred          in some  circumstances from control  of the area," we  felt there          was some  risk of  over-breadth in the  proposition that  knowing          control of  an  area  might, without  more,  properly  ground  an          inference of constructive possession of  whatever might be in the          area.    Accordingly,  without disturbing the  verdict in Booth s          case  (in which "the  jury was told  several times that  proof of           knowing   possession was  required; [and]  the evidence  linking          appellant to the gun was substantial," id.), we cautioned against                                                 __          the utilization of so elastic an  instruction in the future.  But          here  the  district  court  did  not  ground  its   inference  of          possession   in  the  fact  of  knowing  control  over  the  area          simpliciter;  the district court found  that Fortes was aware of,          ___________          and intended to participate in  possessing, crack that was on the          premises and that was available for sale.                                         -9-                    Section  924(e)(1) of Title  18 provides for  a minimum          term of  incarceration of fifteen  years without  parole for  any          person "who violates  section 922(g) of this title  and has three          previous convictions by any court . . . for a violent felony or a          serious drug offense, or  both."  Although Fortes had, as  of the          date of his  sentencing in this case, a  not unimpressive history          of prior criminal convictions, he takes exception to the district          court's  conclusion that  more  than two  of  them were  "violent          felon[ies]" within the meaning of   924(e)(1).                    At sentencing,  the district court concluded  that five          of Fortes' prior convictions -- two Massachusetts convictions and          three federal  convictions  -- qualified  as  predicate  "violent          felon[ies]."   The Massachusetts convictions were for assault and          battery on  a correctional  officer and  assault  with intent  to          murder.  The federal convictions  were for possession of a sawed-          off  shotgun, conspiracy to  commit bank robbery,  and armed bank          robbery.                    In  appealing  the enhanced  sentence,  Fortes contends          that three of the five  convictions counted by the district court          as  predicate offenses were  not "violent felon[ies]"  within the          meaning  of  ACCA.    The  three  whose  characterization  Fortes          challenges are the Massachusetts  assault and battery  conviction          and the federal possession of a sawed off shotgun and conspiracy-          to-commit-bank-robbery convictions.                    Subsequent to Fortes' sentencing, this court, in United                                                                     ______          States v.  Indelicato, 97 F.3d  627 (1st Cir.), cert  denied, 117          ______     __________                           ____________                                         -10-          S. Ct. 1013 (1997), had occasion  to consider the status, for the          purposes  of  the  federal criminal  code,  of  the Massachusetts          offense of assault  and battery -- an offense which Massachusetts          denominates a  "misdemeanor," and  conviction of  which does  not          entail a loss  of civil rights.  As  the government acknowledges,          our    Indelicato   analysis    precludes   characterizing    the                 __________          Massachusetts  offense of  assault  and  battery  as  a  "violent          felony" under  ACCA.  The  government insists, however,  that the          two other  offenses called into question by  Fortes -- possession          of a sawed-off  shotgun and conspiracy to commit  bank robbery --          are both "violent  felon[ies]."  If the government  is correct as          to either offense, then that offense, taken together with the two          offenses whose "violent felony" status Fortes does not dispute --          armed bank robbery and assault with intent to murder -- would add          up to  the three predicate  offenses which bring ACCA  into play.          But if  Fortes is  right that neither  possession of  a sawed-off          shotgun  nor conspiracy  to rob  a  bank is  a "violent  felony,"          sentencing Fortes as an armed career criminal was not authorized.                    We turn, then, to a  consideration of whether either of          these  offenses is properly characterizable as a "violent felony"          for the purposes of ACCA.          A.  Is  possession  of  a sawed-off  shotgun  a  "violent felony"              _____________________________________________________________              within the meaning of ACCA?              ___________________________                    Possession of a sawed-off shotgun is made an offense by          the confluence of  26 U.S.C.    5861(d) and 26 U.S.C.    5845(a).          Section 5861(d) of Title 26 makes  it "unlawful for any person  .                                         -11-          . . to  receive or possess a  firearm which is  not registered to          him in the National Firearms  Registry and Transfer Record."  And          section  5845(a) instructs that the "term 'firearm' means," inter                                                                      _____          alia, "a shotgun having a barrel or barrels of less than eighteen          ____          inches in length."   26 U.S.C.    5845(a).  As the  Ninth Circuit          observed in United States v. Dunn, 946 F.2d 615, 621 (9th  Cir.),                      _____________    ____          cert. denied,  502 U.S. 950  (1991), "[n]ot all firearms  must be          ____________          registered under 26  U.S.C.   5861(d).  Only  those firearms must          be registered that Congress has found to be inherently  dangerous          and generally lacking usefulness, except for violent and criminal          purposes,  such  as  sawed-off shotguns  and  hand-grenades.   26          U.S.C.   5845."                      The  term "violent  felony," as  utilized  in ACCA,  18          U.S.C.   924(e)(1), is defined in  18 U.S.C.   924(e)(2)(B).  The          definition is as follows:                      [T]he  term   violent  felony  means   any  crime              punishable  by imprisonment for a term 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.                    In considering whether an offense is a "violent felony"          within the meaning  of 18 U.S.C.     924(e)(1) and  924(e)(2)(B),          courts are,  as a  general matter, directed  to pursue  "a formal          categorical  approach, looking only  to the statutory definitions                                         -12-          of the prior offenses, and not to the particular facts underlying          those convictions."   Taylor v. United States, 495  U.S. 575, 600                                ______    _____________          (1990).                    It would  appear clear  from the  statutory texts  that          possession of  a sawed-off shotgun  -- or, indeed,  possession of          any  "firearm which  is not  registered to  [the accused]  in the          National  Firearms Registry  and Transfer  Record,"  26 U.S.C.             5861(d) -- is  not an offense which  "has as an element  the use,          attempted use, or  threatened use of  physical force against  the          person of another."  18 U.S.C.   924(e)(2)(B)(i).  What cannot be          determined  solely  by  reading the  statutory  texts  is whether          possession of a sawed-off shotgun "involves conduct that presents          a  serious potential  risk of  physical injury  to another."   18          U.S.C.   924(e)(2)(B)(ii).                      In arguing that  possession of a sawed-off  shotgun, in          contravention  of 26  U.S.C.    5861(d), is  not an  offense that          falls within the purview of    924(e)(2)(B)(ii), Fortes relies on          United  States v. Doe, 960  F.2d 221 (1st Cir.  1992).  In Doe we          ______________    ___                                      ___          held that possession of a firearm by a felon, in contravention of          18  U.S.C.    922(g)(1),  was not  a    924(e)(2)(B)(ii) offense.          Since possession is  the defining criminal act both  of   5861(d)                __________          and  of   922(g)(1),  Fortes  contends  that  "Doe  controls  and                                                         ___          dictates  the conclusion that [possession of a sawed-off shotgun]          does not qualify as a 'violent [felony]'."                      Our holding in Doe was based on several considerations.                                   ___          The concluding consideration built upon the position taken by the                                         -13-          Sentencing  Commission  in  a 1991  amendment  to  the commentary          governing the career  offender guidelines, U.S.S.G.     4B1.1 and          4B1.2, the  close guideline analogues of 18  U.S.C.   924(e).  We          said this:                       Fourth,  the   United  States   Sentencing                    Commission,     following     a     statutory                    instruction, 28 U.S.C.    994(a), has written                    Guidelines   with   enhancements   for  those                    violent offenders with  two prior convictions                                            ___                    for "crimes of violence."   U.S.S.G.   4B1.1.                    In defining  the words  "crime of  violence,"                    the  Guidelines  use  the very  language  now                    before  us,  namely the  words  "conduct that                    presents a serious potential risk of physical                    injury to another."  U.S.S.G.   4B1.2(1)(ii).                    The  Commission  has   recently  amended  its                    commentary to make clear that  these words do                    "not   include   the  offense   of   unlawful                     ____________________________________________                    possession  of   a  firearm   by  a   felon."                    ___________________________________________                    U.S.S.G.    4B1.2,  comment.   (n.2)(emphasis                    added).    The   Commission,  which  collects                    detailed sentencing  data on  virtually every                    federal criminal  case, is  better able  than                    any  individual  court  to make  an  informed                    judgment  about the  relation between  simple                    unlawful gun possession and the likelihood of                    accompanying violence.   For this reason, and                    because  uniform  interpretation  of  similar                    language is  in itself desirable,  we believe                    we should  give  some  legal  weight  to  the                    Commission's determination.          Doe, 960 F.2d at 225.          ___                    The  Sentencing Commission  has  not issued  a  similar          amendment concerning possession  of a sawed-off shotgun,  or such          other firearms as a silencer or a machine gun whose possession is          also  proscribed   by      5861(d)  (in   combination  with   the          definitional provision, 26 U.S.C.   5845(a)).   The reasonable --          indeed,  very substantial --  difference between possession  of a          generic  "firearm" and  possession  of  one  of  the  specialized                                         -14-          weapons  singled-out for particularized treatment by 26 U.S.C.             5845(a)  and  5861(d)  is  illustrated  by  the  Ninth  Circuit's          decision in  United States v.  Huffhines, 967 F.2d 314  (9th Cir.                       _____________     _________          1992).   There the court  held that a 1989  Sentencing Commission          amendment  to U.S.S.G.    4B1.2  (an amendment adopted  two years          prior  to  the   Sentencing  Commission's  commentary   amendment          discussed by this  court in Doe) precluded  characterizing felon-                                      ___          in-possession-of-a-firearm as  a "crime  of violence" within  the          meaning  of U.S.S.G.     4B1.1  and 4B1.2.  See United  States v.                                                      ___ ______________          Sahakian,  965 F.2d  940 (9th  Cir. 1992);  cf. United  States v.          ________                                    __  ______________          O'Neal, 937 F.2d 1369 (9th Cir. 1990).  But  the Huffhines court,          ______                                           _________          reaffirming the explication  of    5845(a) and  5861(d) announced          in  United States v.  Dunn, supra (possession  of an unregistered              _____________     ____  _____          firearm --  in that instance, a sawed-off  shotgun -- is a "crime          of violence"  for purposes of  U.S.S.G.   4B1.1), also held  that          possession  of a  silencer is  a "crime  of violence"  within the                                     __          meaning  of U.S.S.G.     4B1.1  and 4B1.2.   The  Ninth Circuit's          Huffhines analysis merits quotation:            _________                    The crime of possession of a firearm silencer                    does  not   have  as  an  element   the  use,                    attempted use  or threatened use  of physical                    force required  by section 4B1.2(1)(i).   See                                                              ___                    Tex. Penal Code Ann.   46.06(a)(4) (West 1989                    &  Supp. 1992).    Thus,  in  order  for  the                    offense  to be a  crime of violence,  it must                    "involve[]  conduct that  presents a  serious                    potential   risk   of  physical   injury   to                    another."  U.S.S.G.   4B1.2(1)(ii).                       The  unlawful  possession  of  a  silencer                    presents such a  risk.   In United  States v.                                                _________________                    Dunn, 946  F.2d 615, 620-21 (9th Cir.), cert.                    ____                                    _____                    denied, ___  U.S. ___,  112 S.  Ct. 401,  116                    ______                    L.Ed.2d 350  (1991), we held  that possession                                         -15-                    of an unregistered firearm in violation of 26                    U.S.C.     5861(d)  constituted  a  crime  of                    violence for  purposes of section 4B1.1.   We                    noted that,  under 26 U.S.C.    5861(d),  not                    all firearms must  be registered, only  those                    that   Congress   found  to   be   inherently                    dangerous  and  lacking in  lawful  purposes,                    such as  sawed-off shotguns and grenades.  We                    reasoned   that   the    possession   of   an                    unregistered firearm  of the kind  defined in                    section 5845 involved a  blatant disregard of                    the law  and a  substantial risk  of improper                    physical force.  Id. at 621.                                     __                       This   reasoning  also   applies  to   the                    unlawful  possession   of  a  silencer.     A                    silencer  is specifically  listed in  section                    5845's definition  of "firearm."   26  U.S.C.                      5845(a)(7).   Like a sawed-off  shotgun and                    other firearms of the kind enumerated in that                    section, a silencer is practically  of no use                    except for a criminal purpose.          Huffhines, 967 F.2d at 320-321.            _________                    A year  after Huffhines,  the Ninth  Circuit reaffirmed                                  _________          the Huffhines and Dunn analysis  of the guidelines term "crime of              _________     ____          violence" in United States v. Hayes, 7 F.3d, 144 (9th Cir. 1993),                       _____________    _____          cert. denied, 511 U.S. 1020  (1994), a case involving a sawed-off          ____________          shotgun.3                                         ____________________          3  The Hayes court said (7 F.3d at 145):                 _____                       A defendant qualifies as a career offender                    if  he is  convicted of  a  felony that  is a                    crime of violence and has two previous felony                    convictions for crimes of violence.  U.S.S.G.                      4B1.1; [United States  v.] Young, 990  F.2d                              ________________________                    at  470.  Section 4B1.2(1) defines a crime of                    violence as a felony offense under federal or                    state  law that "has  as an element  the use,                    attempted use, or threatened  use of physical                    force against the  person of another,  or ...                    involves  conduct  that  presents  a  serious                    potential   risk   of  physical   injury   to                    another."   Because the  statutory definition                    of  Hayes   unregistered  shotgun  conviction                                         -16-                    In Doe we looked to  the jurisprudence attendant on the                       ___          career  offender guidelines,  U.S.S.G.     4B1.1  and 4B1.2,  for          assistance in the construction of identical language in the Armed          Career Criminal Act (ACCA), 18 U.S.C.    924(e)(2)(B).  We do  so          again today.  We hold that possession of a sawed-off shotgun is a          "violent felony" within the meaning of ACCA.          B.  Fortes' ACCA sentence was warranted              ___________________________________                    Since  Fortes'  prior  conviction for  possession  of a          sawed-off shotgun  was a  "violent  felony" for  the purposes  of          ACCA, that  conviction, together  with Fortes'  prior convictions          for assault  with intent  to murder and  for armed  bank robbery,          added  up  to  three  predicate  "violent   felon[ies],"  thereby          subjecting Fortes to  the enhanced sentence scheme  prescribed by                                        ____________________                    does not  involve the use,  attempted use  or                    threatened  use  of  physical  force  against                    another,  we  focus  solely  on  whether  the                    charged conduct presented a serious potential                    risk  of  physical  injury to  another.   See                                                              ___                    Young, 990 F.2d at 471.                    _____                       We conclude  that in Hayes   case it does.                    As we said in United States v. Dunn, 946 F.2d                                  _____________    ____                    615, 621 (9th  Cir.), cert denied.  ____ U.S.                                          ___________                    ____, 112 S. Ct. 401, 116 L.Ed.2d 350 (1991),                    and United States v. Huffhines, 967 F.2d 314,                        _____________    _________                    321 (9th Cir.  1992); sawed-off shotguns  are                    inherently dangerous, lack  usefulness except                    for violent  and criminal purposes  and their                    possession involves  the substantial  risk of                    improper  physical force.   These  attributes                    led Congress to require registration of these                    weapons.  Huffhines, 967 F.2d at 321.                              _________                                         -17-          ACCA  for armed career criminals.  Accordingly, Fortes' 262-month          sentence on count 1 was warranted.4                                         III.                    We  have  considered, and  find without  merit, Fortes'          other  contentions:   that the  district court  erred in  (1) not          granting a continuance  to enable Fortes to locate  and call as a          witness a  government confidential  informant,  (2) admitting  in          evidence the  out-of-court declaration of  one found to be  a co-          conspirator,  and  (3)  determining that  Fortes  "possessed  [a]          firearm  ...  in  connection  with  a  ...  controlled  substance          offense"  within the  meaning  of U.S.S.G.     4B1.4(b)(3) and             4B1.4(c)(3) in  calculating  Fortes' offense  level and  criminal          history category.                                      Conclusion                                      __________                    For  the  foregoing  reasons   Fortes'  conviction  and          sentence are affirmed.                       ________                                        ____________________          4   We thus find it  unnecessary to address the  further question          whether  Fortes  prior conviction  for conspiracy to  commit bank          robbery was also properly countable as an ACCA predicate "violent          felony."   Compare  United States  v.  Preston, 910  F.2d 81  (3d                     _______  _____________      _______          Cir.), cert. denied, 498 U.S.  1103 (1991), with United States v.                 ____________                         ____ _____________          King, 979 F.2d 801 (10th Cir. 1992).          ____                                         -18-
