by Katherine Brady and Norton Tooby
 Introduction Crimes of Moral Turpitude |
Back to Table of Contents PREVIOUS PAGE NEXT PAGE 2. Other Firearms Offenses Additional firearms offenses that do not necessarily include trafficking were added as aggravated felonies at INA § 101(a)(43)(E) by the 1994 Technical Correction Act. Are Analogous State Firearms Offenses Aggravated Felonies? The Ninth Circuit has set out a strict rule concerning what state firearms offenses will be considered aggravated felonies as analogues to the referenced federal firearms offenses. The court stated that where conduct could violate a state statute, yet not violate the federal analogue, a state conviction does not constitute an aggravated felony "described in" the federal statute for federal sentencing purposes. In order for a state offense to be "described in" a federal one, all of the conduct criminalized by the state law must be included within the conduct criminalized by the federal law. FN 374 The Ninth Circuit has held, however, that the state statute need not contain a federal jurisdictional element in order for a conviction under it to be considered an aggravated felony. FN 375 Other circuits, however, might disagree, and find any difference between the elements of a state statute and the federal analogue to prevent consideration of a state conviction as an aggravated felony. FN 376 What Federal Firearms Offenses Are Aggravated Felonies? The aggravated felony definition at 8 U.S.C. § 1101(a)(43)(E) includes "(E) an offense described in - :
This includes firearms and explosives offenses described in the following sections of Title 18 U.S. Code:
The definition also includes "an offense described in" Internal Revenue Code § U.S.C. § 5861) (failure to pay firearms tax, possession of unregistered firearm or one with serial number altered, etc.). That section prohibits the following acts: a. engage in business as firearms dealer without having paid special tax or registered as required in §§ 5801, 5802, b. possess a firearm transferred in violation of this chapter (§§ ), c. possess a firearm made in violation of this chapter, d. possess a firearm not registered to the possessor in the National Firearms Registration and Transfer Record, e. transfer a firearm in violation of this chapter, f. make a firearm in violation of this chapter, g. alter identification of a firearm required by this chapter, h. possess a firearm with altered identification, i. possess a firearm not identified as required by this chapter, j. transport or receive any firearm in interstate commerce which has not been registered as required by this chapter, k. possess a firearm imported into the U.S. in violation of § 5844, or l. knowingly make a false entry on any record required by this chapter. Note: all of these acts prohibited under the Internal Revenue Code relate to "firearms". Firearms are defined to include short-barreled shotguns, short-barreled rifles, machine guns, silencers, destructive devices, and "any other weapon." FN 377 (26 U.S.C. § 5845(a).) FN 378 "Firearm" does not include pistols or revolvers with rifled bores. FN 379 The terms "machine gun" (§ 5845(b)), "rifle" (§ 5845(c)), "shotgun" (§ 5845(d)), "antique firearm" (§ 5845(g)) are further defined in the sections noted. "Destructive device" is defined to include explosive, incendiary, or poison gas bombs, grenades, or rockets with more than four ounces of propellant, and any weapon with a barrel greater than one-half inch in diameter that will expel a projectile, as well as kits for converting anything into a destructive device. The term does not include items not designed or redesigned for use as weapons, items "redesigned for use as a signaling, pyrotechnic, line throwing, safety, or similar device," "or any other device which the Secretary finds is not likely to be used as a weapon, or is an antique or is a rifle which the owner intends to use solely for sporting purposes." 26 U.S.C. § 5845(f). FN 380 Ammunition per se is not included within the definition of firearms or destructive devices in 26 U.S.C. § 5845(a) and related sections. It is clear that Congress knew how to refer to ammunition when it wished to do so: It listed certain ammunition offenses as aggravated felonies. It could easily have listed ammunition generally in this definition if it had wished to do so.
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