           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                       2    United States v. Wynn                      No. 02-4354
        ELECTRONIC CITATION: 2004 FED App. 0118P (6th Cir.)
                    File Name: 04a0118p.06                                                  _________________
                                                                                                 COUNSEL
UNITED STATES COURT OF APPEALS
                                                                         ARGUED: Charles E. Fleming, FEDERAL PUBLIC
                  FOR THE SIXTH CIRCUIT                                  DEFENDER’S OFFICE, Cleveland, Ohio, for Appellant.
                    _________________                                    Duane J. Deskins, ASSISTANT UNITED STATES
                                                                         ATTORNEY, Cleveland, Ohio, for Appellee. ON BRIEF:
 UNITED STATES OF AMERICA , X                                            Charles E. Fleming, FEDERAL PUBLIC DEFENDER’S
           Plaintiff-Appellee, -                                         OFFICE, Cleveland, Ohio, for Appellant. Duane J. Deskins,
                                -                                        ASSISTANT UNITED STATES ATTORNEY, Cleveland,
                                -            No. 02-4354                 Ohio, for Appellee.
          v.                    -
                                 >                                                          _________________
                                ,
 DEMETRIUS WYNN ,               -                                                               OPINION
        Defendant-Appellant. -                                                              _________________
                               N
                                                                           RONALD LEE GILMAN, Circuit Judge. In sentencing
                                                                         Demetrius Wynn under U.S. Sentencing Guidelines § 2K2.1,
                                                                         the district court determined that a two-level enhancement
          Appeal from the United States District Court                   was warranted because Wynn possessed a destructive device.
           for the Northern District of Ohio at Akron.                   Wynn claims that his sawed-off shotgun does not qualify as
          No. 02-00232—James Gwin, District Judge.                       such a device. To the contrary, we conclude that because
                                                                         Wynn’s sawed-off shotgun is a weapon that will expel a
                    Argued: March 18, 2004                               projectile by the action of an explosive and has a barrel with
                                                                         a bore of more than one-half inch in diameter, it is a
              Decided and Filed: April 23, 2004                          destructive device as defined by Application Note 4 to
                                                                         § 2K2.1. We therefore AFFIRM the judgment of the district
         Before: COLE and GILMAN, Circuit Judges;                        court.
            SCHWARZER, Senior District Judge.*
                                                                                             I. BACKGROUND
                                                                            Wynn pled guilty to being a felon in possession of a
                                                                         firearm, in violation of 18 U.S.C. § 922(g)(1), and to
                                                                         possessing an unregistered sawed-off shotgun, in violation of
                                                                         26 U.S.C. § 5861(d). The weapon in question was a .20
                                                                         gauge shotgun with a modified overall length of 19.5 inches
    *
     W illiam W Schwarzer, Senior United States District Judge for the   and a barrel length of 12.5 inches. As part of his plea
Northern District of California, sitting by designation.

                                  1
No. 02-4354                      United States v. Wynn       3    4    United States v. Wynn                        No. 02-4354

agreement, Wynn admitted that the sawed-off shotgun was a         26 U.S.C. § 5845(f) was “broad enough to include a sawed-
firearm as defined in 26 U.S.C. § 5845(a)(1) and (2).             off shotgun.” Specifically, the court noted that a shotgun with
                                                                  a bore of more than a half inch in diameter is by definition a
   U.S. Sentencing Guidelines § 2K2.1 establishes the             destructive device under § 5845(f), unless it is the kind of
sentencing range for Wynn’s convictions. Wynn had two             shotgun appropriate for sporting purposes. “And in this
prior felony convictions for crimes of violence, which caused     case,” the court stated, “the shotgun had a bore of more than
his Base Offense Level to be set at 26. The Presentence           a half-inch diameter.” Sawed-off shotguns, moreover, are not
Report further determined that a two-level enhancement was        used for sporting purposes.
warranted because Wynn’s offense involved a destructive
device as described in 26 U.S.C. 5845(a). Application Note          The district court ultimately applied the two-level
11 to § 2K2.1 permits what would otherwise appear to be           enhancement because it agreed with the government’s
“double counting” by expressly providing that “a defendant        interpretation that any firearm listed in § 5845(a), such as a
whose offense involves a destructive device receives both the     sawed-off shotgun, is a destructive device. For further
base offense level from the subsection applicable to a firearm    support, the court reiterated that the definition of destructive
listed in 26 U.S.C. § 5845(a) . . . , and a two-level             device under § 5845(f) “gives all indication that this [sawed-
enhancement under subsection (b)(3).” U.S. Sentencing             off shotgun] should be considered to be a destructive device.”
Guidelines Manual § 2K2.1, cmt. n.11 (2002).                      This timely appeal followed.
   Wynn filed a Sentencing Memorandum objecting to the                                   II. ANALYSIS
two-level increase for possession of a destructive device. He
argued that the definition of a destructive device in             A. Standard of review
Application Note 4 to § 2K2.1 does not encompass a sawed-
off shotgun. First, he suggested that Application Note 4's          “In reviewing a sentence imposed under the Sentencing
language that a destructive device “is a type of firearm listed   Guidelines, we are required by statute to ‘accept the findings
in 26 U.S.C. § 5845(a)” means that a destructive device is        of fact of the district court unless they are clearly erroneous
simply “one type” of firearm listed in that provision. The        and to give due deference to the district court’s application of
government, on the other hand, interprets the same phrase to      the guidelines to the facts.’” United States v. Horn, 255 F.3d
mean that “all types” of firearms listed in § 5845(a) are         610, 612 (6th Cir. 2004) (quoting 18 U.S.C. § 3742(e)).
destructive devices. Second, Wynn argued that because
18 U.S.C. § 924(c)(1)(B) imposes vastly different penalties         We “must follow the clear and unambiguous language of
on defendants who possess a destructive device as opposed to      the Sentencing Guidelines when interpreting and applying
a sawed-off shotgun while committing a violent or drug-           specific provisions.” United States v. Young, 266 F.3d 468,
trafficking crime, the two items should not be treated as         484 (6th Cir. 2001). The “[s]entencing guidelines should be
equivalents under § 2K2.1. The government responds by             read as written,” United States v. Cobb, 250 F.3d 346, 349
questioning the relevance of the penalty scheme under             (6th Cir. 2001), and the “commentary . . . is authoritative
§ 924(c)(1)(B) to the Sentencing Guideline in question.           unless it violates the Constitution or a federal statute, or is
                                                                  inconsistent with, or a plainly erroneous reading of, that
  At sentencing, the district court raised an additional point.   guideline.” United States v. Lewis, 156 F.3d 656, 660 (6th
The court found that the definition of a destructive device in    Cir. 1998) (citation and quotation marks omitted).
No. 02-4354                       United States v. Wynn          5   6     United States v. Wynn                        No. 02-4354

B. Interpretation of the term “destructive device”                   (Emphasis added.)
  1. Application Note 4, Sentencing Guidelines § 2K2.1                  Wynn does not dispute that § 5845(a)(1) and (2) cover the
                                                                     shotgun that was in his possession. He argues instead that
   A defendant convicted of unlawfully possessing a firearm          when Application Note 4 states that a destructive device “is
is potentially subject to Sentencing Guidelines § 2K2.1(b)(3),       a type of firearm listed in 26 U.S.C. § 5845(a),” this simply
which provides for a two-level enhancement to the base               means that a destructive device is one type of firearm listed in
offense level if the offense involved a destructive device.          § 5845(a), i.e., a destructive device under subsection (8).
Application Note 4 defines a “destructive device” in the             Wynn points out that if a sawed-off shotgun is considered a
following manner:                                                    destructive device, then it would be redundant to describe
                                                                     shotguns and modified shotguns in (a)(1) and (a)(2),
  “Destructive device” is a type of firearm listed in 26             respectively, and still list “destructive devices” as a separate
  U.S.C. § 5845(a), and includes any explosive,                      category in (a)(8).
  incendiary, or poison gas - - (i) bomb, (ii) grenade, (iii)
  rocket having a propellant charge of more than four                  In contrast, the government reads Application Note 4's
  ounces, (iv) missile having an explosive or incendiary             phrase “is a type of firearm listed in 26 U.S.C. § 5845(a)” as
  charge of more than one-quarter ounce, (v) mine, or (vi)           meaning that all firearms listed in § 5845(a) are destructive
  device similar to any of the devices described in the              devices. Because Wynn admits that his shotgun is covered by
  preceding clauses; any type of weapon which will, or               § 5845(a)(1) and (2), the government contends that the
  which may be readily converted to, expel a projectile by           shotgun is by definition a destructive device. We find this
  the action of an explosive or other propellant, and which          interpretation awkward for two reasons.             First, the
  has any barrel with a bore of more than one-half inch in           government’s reading is circular: if the term “destructive
  diameter; or any combination of parts either designed or           device” applies to all of the firearms listed in § 5845(a),
  intended for use in converting any device into any                 which includes the category “a destructive device” under
  destructive device listed above. For a more detailed               subsection (a)(8), then this leads us back to where we started.
  definition, refer to 26 U.S.C. § 5845(f).                          Second, if everything listed in § 5845(a) is a destructive
                                                                     device, then why are the examples in Application Note 4
U.S. Sentencing Guidelines Manual § 2K2.1, cmt. n.4 (2002)           (e.g., a bomb, grenade, rocket, etc.) exclusively drawn from
(Emphasis added). Section 5845(a) provides in turn:                  the comprehensive definition of a destructive device found in
                                                                     § 5845(f)? Why are the other weapons listed in § 5845(a)
  The term “firearm” means (1) a shotgun having a barrel             (e.g., a sawed-off shotgun, machine gun, silencer, etc.) not
  or barrels of less than 18 inches in length; (2) a weapon          given as examples as well.
  made from a shotgun if such weapon as modified has an
  overall length of less than 26 inches or a barrel or barrels          We have found no satisfactory answers to these questions,
  of less than 18 inches in length; (3) a rifle . . . ; (4) a        and therefore discount the government’s interpretation of
  weapon made from a rifle . . . ; (5) any other weapon, as          Application Note 4. On the other hand, for the reasons set
  defined in subsection (e); (6) a machine gun; (7) any              forth in Part II.B.3. below, we conclude that Wynn’s
  silencer . . . ; and (8) a destructive device.                     alternative interpretation provides him with no basis for relief.
No. 02-4354                       United States v. Wynn         7   8      United States v. Wynn                            No. 02-4354

  2. Relevance of 18 U.S.C. §§ 921(a) and 924(c)                        (A) any explosive, incendiary, or poison gas—(i) bomb,
                                                                        (ii) grenade, (iii) rocket . . . , (iv) missile . . . , (v) mine,
   Wynn also points to the statutory definitions and penalties          or [similar device];
set forth in Title 18 of the United States Code to support his
theory that a sawed-off shotgun should not be considered a              (B) any type of weapon . . . by whatever name known
destructive device for the purposes of Sentencing Guidelines            which will, or which may be readily converted to, expel
§ 2K2.1. A person convicted of a crime of violence or a drug            a projectile by the action of an explosive or other
trafficking crime, who possesses a firearm when committing              propellant, and which has any barrel with a bore of more
the offense, is subject to the following penalties under                than one-half inch in diameter[.]
§ 924(c)(1):
                                                                    Wynn therefore argues that because Congress’s penalty
  (B) If the firearm possessed by a person                          scheme in § 924(c) clearly differentiates between a
                                                                    destructive device and a sawed-off shotgun, the Sentencing
    (i) is a short-barreled rifle, short-barreled shotgun, or       Guidelines § 2K2.1 should do the same.
  semiautomatic assault weapon, the person shall be
  sentenced to a term of imprisonment of not less than 10             We acknowledge that Congress intended, at least for the
  years; or                                                         purposes of Title 18, to differentiate between a destructive
                                                                    device and a sawed-off shotgun. But “when two statutes
    (ii) is a machine gun or a destructive device, or is            conflict to some degree they should be read together to give
  equipped with a firearm silencer or firearm muffler, the          effect to each if that can be done. . . .” Muller v. Lujan, 928
  person shall be sentenced to a term of imprisonment of            F.2d 207, 211 (6th Cir. 1991). Perhaps Congress believed
  not less than 30 years.                                           that there was no reason to differentiate between failing to
                                                                    register a sawed-off shotgun and, say, a grenade. Section
18 U.S.C. § 924(c)(1)(B) (Emphasis added.) This court has           5861(d), after all, punishes the failure to register such items,
recognized that § 924(c) demonstrates Congress’s intent to          and the maximum statutory penalty for the violation of this
punish defendants using destructive devices more severely           provision is 10 years’ imprisonment. On the other hand, in 18
than those using sawed-off shotguns. United States v. Sims,         U.S.C. § 924(c), Congress presumably concluded that
975 F.2d 1225, 1236 (6th Cir. 1992) (observing that the             different minimum penalties were appropriate—10 years
penalty scheme presumably reflects Congress’s belief that           versus 30 years—for individuals who possess a firearm while
machine guns and explosive devices are more dangerous than          committing violent or drug crimes, depending on whether
short-barreled rifles and sawed-off shotguns).                      they had a sawed-off shotgun as opposed to a grenade.
   Whether a defendant used a “destructive device” for the            We see no need, however, to speculate further about the
purposes of § 924(c) is determined by the definition of that        reason for the differential treatment of these items in Title 26
term in 18 U.S.C. § 921(a)(4), which is identical to the            versus Title 18. Wynn was convicted of violating 26 U.S.C.
definition found in 26 U.S.C. § 5845 (f). According to              § 5861(d), not 18 U.S.C. § 924(c). Sentencing Guidelines
§ 921(a)(4), a “destructive device” means:                          § 2K2.1 establishes the sentencing range for violations of
                                                                    26 U.S.C. § 5861(d), and we must apply the definition of a
                                                                    destructive device as found in Application Note 4. See United
No. 02-4354                      United States v. Wynn          9   10   United States v. Wynn                      No. 02-4354

States v. Jones, 107 F.3d 1147, 1164 n.16 (6th Cir. 1997)             recognized as particularly suitable for sporting
(commenting that we should “confine our inquiry to the                purposes[.]
Guidelines themselves and not [] venture out on a sojourn
throughout the United States Code”). The inconsistency, in            A weapon that expels a projectile by the action of an
other words, is noted but not deemed determinative.                 explosive fairly describes a firearm. A sawed-off shotgun
                                                                    certainly is designed to expel a projectile (lead pellets) by
  3.   The definition of destructive device in 26 U.S.C.            means of an explosive or other propellant (gunpowder). The
       § 5845(f)                                                    district court stated at the sentencing hearing that Wynn’s
                                                                    shotgun had a bore of more than a half-inch diameter, thus
  Unlike the district court, we think that Wynn’s construction      making his weapon a destructive device under the language
of Application Note 4's opening phrase is plausible, but we do      of both Application Note 4 and the “detailed definition”
not find it dispositive. We find more compelling the district       found in 26 U.S.C. § 5845(f).
court’s observation that the definition of destructive device,
both in Application Note 4 and in 26 U.S.C. § 5845(f), is              Our conclusion that Congress intended to include sawed-off
broad enough to include a sawed-off shotgun for a different         shotguns within the definition of a destructive device is also
reason. To recap, Application Note 4 states in part that a          supported by the legislative history of the Gun Control Act of
destructive device                                                  1968, 18 U.S.C. §§ 921-950. Congress passed the Act to
                                                                    amend Title 18's regulations on the transfer and sale of
  includes . . . any type of weapon, which will, or which           firearms. Conf. Rep. No. 90-1956 (1968), reprinted in 1968
  may be readily converted to, expel a projectile by the            U.S.C.C.A.N. 4426. The Gun Control Act also revised the
  action of an explosive or other propellant, and which has         National Firearms Act, 26 U.S.C. §§ 5801-5880, “to cover
  any barrel with a bore of more than one-half inch in              additional weapons, most notably destructive devices.” 1968
  diameter; or any combination of parts either designed or          U.S.C.C.A.N. at 4434. Because, as discussed above, the
  intended for use in converting any device into any                definition of a destructive device is identical in both
  destructive device listed above. For a more detailed              18 U.S.C. § 921(a)(4) and 26 U.S.C. § 5845(f), the legislative
  definition, refer to 26 U.S.C. § 5845(f).                         history from the Gun Control Act sheds light on Congress’s
                                                                    intent in formulating these matching provisions. See United
(Emphasis added.) The detailed definition at 26 U.S.C.              States v. Posnjak, 457 F.2d 1110, 1113, 1114 (2d Cir. 1972)
§ 5845(f) in turn provides:                                         (noting that the Gun Control Act included “destructive
                                                                    devices” for the first time in Title 18, somewhat redefined
  The term destructive device means (1) any explosive,              “destructive devices” for Title 26, and that the definitions
  incendiary, or poison gas (A) bomb, (B) grenade, (C)              were identical).
  rocket . . . , (D) missile . . . , (E) mine, or (F) similar
  device; (2) any type of weapon by whatever name known               In the Conference Report on the Gun Control Act, the
  which will, or which may readily converted to, expel a            House managers described the compromise reached on the
  projectile by the action of an explosive or other                 definition of destructive device for Title 18:
  propellant, the barrel or barrels of which have a bore of
  more than one-half inch in diameter, except a shotgun or            The House bill defined the term “destructive device” to
  shotgun shell which the Secretary finds is generally                mean any explosive, incendiary, or poison gas bomb,
No. 02-4354                        United States v. Wynn      11    12   United States v. Wynn                      No. 02-4354

  grenade, mine, rocket, missile or similar device and to           diameter. 18 U.S.C. § 921(a)(4)(B) and 26 U.S.C.
  include any type of weapon which will or is designed to           § 5845(f)(2).
  or may be readily converted to expel a projectile by the
  action of any explosive and which has any barrel with a              We have found only one case, United States v. Demko, 216
  bore of one-half inch or more in diameter. It excluded            F.3d 1049 (Fed. Cir. 2000), where the parties actually
  from such term the following: Any device which is not             litigated whether a shotgun fell within § 5845(f)(2)’s
  used, or which is not intended to be used, as a weapon,           definition of destructive device. The defendants in Demko
  any shotgun other than a short-barreled shotgun, any              contended that the Bureau of Alcohol, Tobacco and Firearms
  nonautomatic rifle (other than a short-barreled rifle)            (ATF) had improperly applied the term to a Striker-12
  generally recognized or particularly suitable for hunting         shotgun. They argued that “the qualifying clause of the
  big game. . . .                                                   statute ‘which the Secretary finds is generally recognized as
                                                                    particularly suitable for sporting purposes’ should be
1968 U.S.C.C.A.N. at 4427 (Emphasis added.) The House               interpreted to only modify the term ‘shotgun shell’ and thus
definition explicitly states that short-barreled shotguns are not   exclude the word ‘shotgun’ from the definition of ‘destructive
excluded from the definition of a destructive device. In other      device.’” Id. at 1051.
words, they are considered destructive devices. Congress
adopted the Senate amendment’s definition of a destructive            The Federal Circuit rejected this argument because “the
device, but stated that it was “essentially the same as the         plain language of § 5845(f)(2) indicates that the qualifying
House bill.” Id. The Senate changed the language describing         clause modifies both ‘shotgun’ and ‘shotgun shell.’” Id. at
the exceptions to what was considered a destructive device.         1052. To interpret the clause as modifying only “shotgun
Under the Senate’s formulation,                                     shell” would, moreover, lead to the absurd result that
                                                                    shotguns are not destructive devices, but that all shotgun
  excluded from the definition are shotguns and shotgun             shells (except ones used for sporting purposes) are. Id. at
  shells found by the Secretary to be suitable for sporting         1053. The Demko court therefore held that the ATF properly
  purposes, and any device which the Secretary finds is an          determined that the Striker-12 shotgun was a destructive
  antique or a rifle which the owner intends to use solely          device because “the gun is a military-type shotgun, rather
  for sporting purposes. Further, the Senate amendment              than one suitable for sporting purposes.” Id. at 1051. The
  does not specifically exclude the nonautomatic rifles             Eighth Circuit has also held that a sawed-off shotgun is a
  excluded by the House bill.                                       destructive device, albeit without any analysis. See United
                                                                    States v. Lee, 351 F.3d 350, 351 n.1 (8th Cir. 2003)
Id.                                                                 (summarily affirming the district court’s conclusion that “an
                                                                    unregistered sawed-off . . . shotgun[] meets the statutory
  In sum, the only types of firearms that are not considered        definition of destructive device” as found in 26 U.S.C.
destructive devices for the purposes of U.S. Sentencing             § 5845(f)). We reach the same conclusion regarding Wynn’s
Guidelines § 2K2.1 are those that are used “solely for              sawed-off shotgun because it is a destructive device as
sporting, recreational, or cultural purposes,” 18 U.S.C.            defined by Application Note 4 to U.S. Sentencing Guidelines
§ 921(a)(4) and 26 U.S.C. § 5845(f)(3), or, by necessary            § 2K2.1.
inference, ones that have a bore of one-half inch or less in
No. 02-4354                  United States v. Wynn   13

                 III. CONCLUSION
  For all of the reasons set forth above, we AFFIRM the
judgment of the district court.
