                                                                             FILED
                            NOT FOR PUBLICATION                               MAY 12 2011

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                         U .S. C O U R T OF APPE ALS




                           FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                         No. 10-10071

              Plaintiff - Appellee,               D.C. No. 4:09-cr-00801-CKJ-
                                                  GEE-1
  v.

JOSE JUAN CORONA-PENA,                            MEMORANDUM *

              Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Arizona
                    Cindy K. Jorgenson, District Judge, Presiding

                        Argued and Submitted April 11, 2011
                             San Francisco, California

Before:       KOZINSKI, Chief Judge, HAWKINS and GOULD, Circuit Judges.


       Corona-Pena violated a state law that makes it a crime to “knowingly”

possess “a shotgun having one or more barrels less than 18 inches in length.” 720

Ill. Comp. Stat. 5/24-1(a)(7)(ii). The Illinois state courts have interpreted the law

to require that the defendant knew he possessed a shotgun, but not the length of the



          *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                                                                                Page 2

barrel. See People v. Wright, 488 N.E.2d 1344, 1349 (Ill. Ct. App. 1986) (“[W]e

hold that . . . section 24-1(a)(7) does not require that defendant in fact know the

shotgun’s barrel measured less than 18 inches.”); People v. Ivy, 479 N.E.2d 399,

404 (Ill. Ct. App. 1985) (“Thus, while it was necessary to show the defendant’s

knowledge of the presence of the weapon, there was no requirement . . . that the

defendant also be shown to have knowledge of the nature of the gun.” (citations

omitted)).

      By contrast, the federal version of possession requires the government to

prove that defendant knew the length of the gun. See 26 U.S.C. § 5861; United

States v. Summers, 268 F.3d 683, 687 (9th Cir. 2001) (“[T]he government was

required to prove beyond a reasonable doubt that [defendant] knew the shotgun

found in his car had an overall length of less than 26 inches or a barrel length of

less than 18 inches.”); see also Staples v. United States, 511 U.S. 600, 620 (1994)

(“[I]f Congress had intended to make outlaws of gun owners who were wholly

ignorant of the offending characteristics of their weapons, and to subject them to

lengthy prison terms, it would have spoken more clearly to that effect.”). U.S.

Sentencing Guidelines Manual § 2L1.2(b)(1)(A)(iii) requires the same knowledge.

Cf. Taylor v. United States, 495 U.S. 575, 590–92 (1990) (expressing preference
                                                                                    Page 3

for uniform national definitions). Corona-Pena’s state crime therefore doesn’t

categorically qualify as a federal firearms offense.

       Nor has the government shown the crime meets the federal definition under

the modified categorical approach. The state conviction documents indicate that

Corona-Pena pleaded guilty to “knowingly” possessing a sawed-off shotgun. But

this tells us only that Corona-Pena knew he possessed a shotgun (knowledge

required by the statute of conviction), and not that he was aware of the gun’s length

(knowledge not required by the state statute). The government points to no

documents showing that Corona-Pena knew the length of the gun. See United

States v. Vidal, 504 F.3d 1072, 1088 (9th Cir. 2007) (en banc) (“[A]n indictment

that merely recites the language of the statute . . . is insufficient to establish the

offense as generic for purposes of a modified categorical analysis.”). On remand,

the district court shall re-sentence defendant without applying the enhancement for

a federal firearms offense.


       SENTENCE VACATED; REMANDED WITH INSTRUCTIONS.
