Possessing Unregistered Gun Not a Crime of Violence Under 924(c)(1)

United States v. Serafin, ___ F.3d ___, 2009 WL 983055 (10th Cir. 2009)
Possession of an unregistered firearm–a short-barreled .22 assault rifle–was not a crime of violence, so that D’s possession of a different firearm at the same time he possessed the unregistered rifle could not constitute the offense of possession of a firearm during a crime of violence in violation of 18 USC Sec. 924(c)(1).

The COA employed the Taylor categorical approach. The operative language for crime of violence under 924(c)(3)(B), which has not been construed by the S. Ct., is most similar in language and purpose to that under 18 USC § 16(b): to address the risk of force being used in the course of committing the crime and not merely the risk of force as a possible result of the crime. Any earlier opinions by the COA addressing possession of an unregistered firearm as a COV for purposes of applying the § 4B 1.2 crime of violence enhancement are inapplicable, since the GL is broader and addresses risk of violence as a result of the crime, not risk of violence in the commission of the crime. The COA rejected any other circuit decisions holding that the risk of force resulting from possession of an unregistered FA qualified the offense as a COV (the COA relyied on the Leocal interpretation of § 16(b)).

In sum, “the unlawful act of possession does not ‘by its nature’ involve a substantial risk that physical force will occur in the course of committing the offense.”