United States v. Xavier Serna

We consider whether possession of an assault weapon in violation of California Penal Code section 12280(b) is a “crime of violence” under the federal Sentencing Guidelines.

Facts

Serna pleaded guilty to being a felon in possession of a firearm. See 18 U.S.C. § 922 (g)(1). It wasn’t the first time Serna had illegally possessed a firearm- — -he had previously pleaded guilty to violating California Penal Code § 12280(b), which outlaws possession of “assault weapons.” The district court concluded that Serna’s state-court conviction was a “crime of violence.” See U.S.S.G. § 2K2.1(a)(4)(A). This finding had the effect of increasing the sentencing range for Serna’s federal conviction from 27-33 months to 46-57 months. The district court gave Serna a 46 month sentence, and Serna appeals.

Analysis

Section 4B1.2(a) of the Sentencing Guidelines defines “crime of violence” as “any offense under federal or state law, punishable by imprisonment for a term exceeding one year, 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.”…