Submitted: Oct. 21, 2013.
Katherine M. Menendez, Assistant Federal Public Defender, argued, Minneapolis, MN, for Defendant-Appellant.
Jeffrey S. Paulsen, Assistant United States Attorney, argued, Minneapolis, MN, for Plaintiff-Appellee.
Before BYE, SMITH, and BENTON, Circuit Judges.
BENTON, Circuit Judge.
Wendell Terrell Brown pled guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). He appeals, attacking the use in his sentencing of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). He also argues that the residual clause of 18 U.S.C. § 924(e)(2)(B)(ii) is unconstitutionally vague. Rejecting Brown's arguments, the district court  sentenced him to the ACCA's mandatory minimum 180 months' imprisonment. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.
The ACCA imposes a mandatory minimum of 180 months if a felon in possession of a firearm has three prior convictions for violent felonies or serious drug offenses. 18 U.S.C. § 924(e)(1). At sentencing, the district court found that three of Brown's prior convictions— for terroristic threats, possession of a short-barreled shotgun, and sale of a controlled substance— triggered this mandatory minimum. Brown objected, arguing that the shotgun conviction is not a violent felony. This court reviews de novo whether a prior conviction qualifies as a predicate offense under the ACCA. United States v. Lillard, 685 F.3d 773, 774 (8th Cir.2012), citing United States v. Gordon, 557 F.3d 623, 624 (8th Cir.2009).
The ACCA defines a " violent felony" as a crime punishable by a term of imprisonment 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.
18 U.S.C. § 924(e)(2)(B).
Brown violated a Minnesota statute providing that " whoever owns, possesses, or operates ... a short-barreled shotgun may be sentenced to imprisonment for not more than five years." Minn.Stat. § 609.67 (1993). This crime does not have an element of force as required in clause (i) and is not listed in clause (ii). The issue is whether possession of a short-barreled shotgun is within the residual " otherwise" clause of § 924(e)(2)(B)(ii).
To fall within the residual clause, the prior offense must " present [ ] a serious potential risk of physical injury to another" and be " roughly similar, in kind as well as degree of risk posed" to the offenses listed in § 924(e)(2)(B)(ii). United ...