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5TH CIRCUIT SUGGESTS 922(g)(1) CAN’T APPLY TO NONVIOLENT OFFENDERS
Earnest Clark was on probation for a state aggravated assault with a gun charge when he was caught with yet another gun. He challenged his conviction for being a felon-in-possession (18 USC § 922(g)(1)) as violating his 2nd Amendment rights.
Last week, the 5th Circuit upheld his conviction but in a way that provides a roadmap for such “as-applied” challenges. (An “as-applied” challenge argues that while the F-I-P statute may not always violate the 2nd Amendment, it does violate the 2nd Amendment as it is applied to the individual facts of the defendant’s case).
The 5th agreed that Ernie’s conduct – possessing a gun – was plainly covered by the 2nd Amendment. However, the Circuit held, disarming him was consistent with the nation’s historical tradition of firearm regulation. Ernie’s predicate felony of aggravated assault with a firearm was a violent crime. The appellate court ruled that disarming people with violent criminal histories is consistent with historical tradition. Even if Ernie’s offense involved only negligent discharge of a firearm, it still fell “within the tradition” of disarming people who menace others with firearms or disrupt public order.
What’s more, the 5th held, Earnest possessed the gun while on probation, and § 922(g)(1) is constitutional when applied to those who possess firearms while on probation or supervised release.
The case strongly suggests that, consistent with the 2nd Amendment, someone with a nonviolent conviction who is not on probation cannot be convicted of F-I-P. What’s more, the decision advances the national trend of drawing a constitutional line between violent and nonviolent predicate offenses in F-I-P cases.
United States v. Clark, Case No. 24-60531, 2025 U.S.App. LEXIS 21452 (5th Cir. August 21, 2025)
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GOOD NEWS AND BAD NEWS
McTrump the Crime Dog
President Trump said last Wednesday that Republican leaders in Congress were working with him on a “comprehensive crime bill” in what the New York Times called “his latest effort to push the issue of crime to the foreground of American politics.”
“It’s what our Country needs, and NOW!” Trump said on his Truth Social platform. “More to follow.” He said both House and Senate Republican leadership were working on the bill, but he offered no details.
A new crime bill would normally be a welcome opportunity to amend the First Step Act, especially to address the Federal Time Credit program. However, the bad news is that Trump does not appear to have a crime bill of that kind in mind.
Targeting what he calls “out of control” crime was central to Trump’s 2024 presidential campaign, although US crime is near its lowest level in decades. He has raised the issue in the last two months, with the deployment of National Guard in Washington DC to allegedly control crime there.
Politico reported last week that Trump’s latest comments have puzzled Republicans on Capitol Hill, who don’t know what “comprehensive” measure the president is talking about. Trump discussed extending his control over the DC police with House Speaker Mike Johnson (R-LA) last Tuesday. The House Oversight Committee, which has jurisdiction over DC issues, plans to advance some bills this month to crack down on juvenile crime, reform the education system, and unwind certain policing policies. However, Politico notes, “it’s the Judiciary Committee that would have to advance any crime-related bills that are national in scope.”
Trump ramrodded First Step through Congress in 2018. But running in 2024, Trump distanced himself from his own achievement, barely mentioning FSA on the campaign trail. In 2023, Florida’s governor and a rival presidential candidate, Ron DeSantis, attacked FSA as a “jailbreak bill” and pledged to repeal it.
“They’re children, but they’re criminals,” Trump said at last Tuesday’s marathon Cabinet meeting as he turned to his attorney general, Pam Bondi. “We are getting that changed, Pam, I hope, because you have 14-year-old kids that are evil, they’re sick, and they have to be put away.”
At the same meeting, Trump said he wants to see the death penalty imposed on every person convicted of murder in DC. “If somebody kills somebody in the capital, Washington, D.C., we’re going to be seeking the death penalty,” Trump said. “And that’s a very strong preventative.”
Trump appointed Fox News commentator Jeanine Pirro as US Attorney for the District of Columbia after even Republicansrefused to confirm firebrand Ed Martinfor the post. Pirro has talked a tough game in support of Trump’s theme that DC crime is out of control, demanding that her prosecutors bring the harshest charges allowable, even for minor infractions. Now, Salon reported this past weekend, “her aggressive posture is colliding with real-world constraints, exposing both her limitations and the fragility of politicized law enforcement.”
Pirro recently revealed that she is getting help from military lawyers, because her office is short 90 prosecutors and 60 investigators and paralegals. DC federal courts, which normally process about six new criminal cases per week, now face six or more cases per day, many stemming from low-level offenses that would’ve been diverted or even dismissed previously.
The increase in workload may be unique to DC, but the staffing is not. According to reports I have received, seasoned AUSAs and support staff have been resigning from US Attorneys’ offices around the country. One federal defense attorney told me last week that the quality of work and responsiveness of AUSAs in his district, the Southern District of Ohio, has fallen dramatically since January. “It’s hard to get a call back,” he said.
Salon said last week, “It’s clear that Pirro’s [charging] directives are unsustainable.” With so many people around the country heading for the exits, US attorneys’ offices may be unable to execute on a harsh new crime bill, even if one passes. That does little to address the bad news that an opportunity to reduce recidivism even more by tweaking FSA – and helping prisoners in the process – may be lost in the tough-on-nonexistent–crime posturing.
Writing in Sentencing Law and Policy last week, Ohio State University law professor Doug Berman observed that “[a] decade into the Trump era, I have learned not to take too literally or too seriously what Donald Trump says on social media. But given that Prez Trump and his GOP allies are viewing crime fighting and crime policy as a winning political issue (and also that Democrats are struggling with a response… new political talk of a new “Comprehensive Crime Bill” makes lots of sense… But, of course, the devil is in the details when it comes to enacting big new federal legislation and in navigating the modern politics and policy-making of crime and punishment. The First Step Act was truly the culmination of decades of federal criminal justice reform debates, and it is unclear what sets of criminal justice proposals will get enough support in Congress to get to the desk of the President. (I assume a crime bill would not find a way to be immune from the Senate filibuster, so at least 60 Senate [votes] would seem to be a necessity for any bill.)”
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
LOTS OF CRIMINAL CASES ON SUPREME COURT FALL DOCKET
The Supreme Court has presaged the start of its October 2025 term by releasing its initial oral argument. Over half of the 19 cases scheduled for oral argument are criminal law cases or closely related to criminal law, and a third of the total are sentencing cases. The number of such cases is substantially larger than the Court’s usual docket.
Rico v. United States, asking whether the fugitive-tolling doctrine – which holds that criminal defendants should not receive credit toward prison sentences for time that they have escaped – should be extended to cases where the defendant absconds from supervised release.
Easily the most consequential are Rutherford v. United States and Fernandez v. United States. Rutherford, brought by a defendant serving stacked § 924(c) sentences of 32 years for carrying a gun in two robberies, asks whether a district court may consider disparities created by the First Step Act’s prospective changes in sentencing law – such as destacking § 924(c) punishments – when deciding if “extraordinary and compelling reasons” warrant a “compassionate release” sentence reduction under 18 USC § 3582(c)(1)(A)(i). Fernandez is similar, asking whether a combination of “extraordinary and compelling reasons” that may warrant 18 USC § 3582(c)(1)(A) compassionate release can include reasons that may include grounds that could be raised to set aside a sentence under 28 USC § 2255.
Rutherford has collected well over a dozen amicus briefs from groups as diverse as former judges, former Bureau of Prisons officials, FAMM, NAACP, NACDL and public defenders. Several prominent conservative groups are represented as well. Every amicus brief except one supports defendant Rutherford, and that one – by former Sentencing Commission officials – officially supports neither side but does argue that the USSC’s position that Rutherford is entitled to raise a change in the law as an extraordinary and compelling reason is consistent with Congress’s grant of broad authority to the Commission to define “extraordinary and compelling reasons” in the statute.
Writing for Right on Crime, a conservative nonprofit, former prosecutor Rachel Wright said, “Punishment should also fit the crime, but in Rutherford’s case, the sentence far exceeds what Congress now deems appropriate. No judge should be forced to act as a rubber stamp for outdated policies. We must ensure that justice keeps pace with legislative reform. Right On Crime supports Rutherford’s appeal, saying it reflects conservative values: limited government, evidence-based decision-making and fairness in sentencing. By allowing judges the discretion to recognize outdated penalties as extraordinary, the court could uphold both accountability and proportionality while conserving taxpayer resources.”
Rutherford and Fernandez may not be the weightiest sentencing questions before the Supreme Court this fall. Writing in the Sentencing Matters Substack, Ohio State University law professor Douglas Berman (who filed an amicus brief supporting defendant Rutherford) observed that Ellingburg v. United Statescould be “the sleeper case of the Fall because it may require the Justices to grapple with the definition of ‘punishment’ for constitutional purposes.”
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GUNS FOR DOPERS
The Supreme Court next month will take up a Dept of Justice request to hear a case on the constitutionality of18 USC § 922(g)(3), the statute criminalizing possession of a gun by a drug user, even as the 11th Circuit weighed in last week with a holding that a user of medical marijuana cannot be prosecuted under the statute consistent with the2ndAmendment.
The 5th Circuit held last winter that Ali Danial Hemani’s past drug use could not be relied on to prosecute him under§ 922(g)(3). Limiting the statute to blocking gun possession only while a person is high effectively guts the statute, DOJ argues in its petition to the Supreme Court.
The government is seeking certiorari on four cases, asking the justices to focus on one involving Hemani, a dual citizen of the United States and Pakistan, who was charged with unlawfully owning a pistol because he regularly smoked marijuana.
Meanwhile, the 11th Circuit last week held that lawful users of medical marijuana under Florida law (despite the fact that possession and use are still unlawful under federal law) cannot be prosecuted under§ 922(g)(3)for possessing a gun.
Two medical weed users brought an action in federal court for a declaratory ruling that§ 922(g)(3)could not prevent them from having guns. The district court denied their request, holding that the laws and regulations at issue “were consistent with the nation’s historical tradition of firearms regulation and therefore did not violate the2nd Amendment.”
After holding the case in abeyance until the Supreme Court decided Rahimi, the 11th reversed the district court. “After careful review,” the Circuit wrote, “we hold that the district court erred in concluding that the plaintiffs did not state a claim for relief. We reach this conclusion because, when viewed in the light most favorable to the plaintiffs, the allegations in the operative complaint do not lead to the inference that the plaintiffs are comparatively similar to either felons or dangerous individuals—the two historical analogues the Federal Government offers in its attempt to meet its burden. We therefore vacate the district court’s order…”
When the Government seeks Supreme Court review, it usually gets it. The constitutionality of§ 922(g)(3)– which should have implications for § 922(g)(1) felon in possession – may make it onto the Supreme Court docket this coming term.
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PARDON OUR MESS
Senior Dept of Justice officials were left scrambling to interpret sweeping clemency orders that former President Joe Biden approved for thousands of federal prisoners in his final days in office, and they criticized the White House for falsely portraying the releases as limited to “nonviolent” offenders, according to internal emails revealed last week.
The records show that former Associate Deputy Attorney General Bradley Weinsheimer raised alarms immediately after Biden issued three autopen-signed warrants on Jan. 17, covering nearly 2,500 federal prisoners.
In a January 18th message to the White House and the DOJ Pardon Attorney, Weinsheimer wrote that one warrant granting clemency for “offenses described to the Dept of Justice” was so vague it could not be lawfully carried out.
Weinsheimer suggested that Biden provide “a list as to each inmate listing the offenses that are covered by the commutation.” He said Biden needed to clarify the “meaning of the warrant language” so the DOJ could implement it “in the manner intended by the President.”
Weinsheimer also pushed back against White House statements that the clemency recipients were only “non-violent drug offenders,” according to the emails. “In communication about the commutations, the White House has described those who received commutations as people convicted of non-violent drug offenses,” Weinsheimer wrote. “I think you should stop saying that because it is untrue or at least misleading.”
The clemency list included a prisoner who had killed a mother and her 2-year-old child to protect his drug business, another whose enforcer tortured an informant with a butane torch, and a Gangster Disciples member implicated in multiple murders and kidnappings.
Despite Weinsheimer’s warning, the White House promoted the mass commutations as relief for “non-violent drug offenses” and as the largest clemency action ever.
Biden later said he approved broad categories of inmates, leaving details on how to apply those standards to staff. The revelations come amid multiple probes by the Trump administration into Biden’s use of his autopen – a machine that automatically signs the President’s name to documents – for key decisions.
Meanwhile, President Trump – who at the start of his second term was as busy as Biden ever was with a clemency pen– has not granted a pardon or commutation in almost three months.
Trump granted multiple pardons every month from January through May (and, of course, did a massive clemency grant on Inauguration Day for the January 6th rioters). You may remember that at the time, Trump’s pardon of 1,500 J6ers was described in news accounts as a “last-minute, rip-the-bandage-off decision.” In fact, one White House advisor said that as Trump’s team wrestled with the issue, “Trump just said: ‘F -k it: Release ’em all.'”
However, despite rumors to the contrary, Trump has gone “full stop” on commutations and pardons since the end of last May.
At the time, media reports said that more clemency grants were expected “in the coming days.” So what happened?
Writing in Sentencing Law and Policy last week, Ohio State law professor Doug Berman wondered whether some of the pundit criticism around the last group of grants may have had some impact on how Trump is thinking about clemency action.
No one can be sure, but the pardon industry continues apace, with reports still being published about some people spending millions to buy access to the President for clemency. Last week, I had two prisoners separately say that the rumor mill reports a big commutation/pardon push in a month. I consider that to be myth. With a major push against supposed gangs rampaging in Washington, DC, Trump is not likely to think this is a good time to let some people out of prison.
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
3RD SAYS DUE PROCESS APPLIES TO RETROACTIVE GUIDELINE SENTENCE REDUCTIONS
Paul Harmon pled guilty in 2021 to one count of wire fraud. After the retroactive zero-point Guideline 4C1.1 – that let people with no criminal history points who met other requirements earn an extra two levels off their Guidelines offense score – Paul filed a motion under18 USC 3582(c)(2)for a sentence reduction.
One of the requirements to qualify for the zero-point reduction is that the prisoner cannot have caused substantial financial hardship to any victims. because of a new, retroactive section of the Sentencing Guidelines, USSG 4C1.1. The District Court, relying on a victim impact statement from the initial sentencing, denied the motion on the ground that Paul had caused substantial financial hardship to his victims. The judge offered Paul no chance to challenge the victim statement at the sentence-reduction stage.
Paul appealed, arguing that the district court’s reliance on the victim statement without giving him a chance to challenge it violated his due process rights.
The 3rd Circuit held that USSG 6A1.3(a), which outlines due process protections for sentencing, also applies to the consideration of motions for sentence reduction under 18 USC 3582(c)(2). The Circuit ruled that defendants have a due process right not to be sentenced based on invalid premises or inaccurate information. While defendants have fewer rights in sentence-reduction proceedings than at initial sentencings, basic due process protections still apply where the information is “new.”
Information is “new,” the 3rd ruled, when it is relied on for the first time to find material facts. This definition ensures defendants have an opportunity to contest information when it matters under the law. But in Paul’s case, the victim impact statement was not “new information” because Paul knew of it at sentencing, where it was relevant to the § 3553(a) sentencing factors, and he had reason and opportunity to dispute it.
The 3rd Circuit noted that the 5th, 7th, 8th and 11th Circuits agree with it, but the 9th has held that USSG 6A1.3(a) does not apply on sentence reduction motions.
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
Summer is ending with back-to-school, football, and cooler days upon us. In commemoration of a short summer, I am condensing a surprising amount of news from last week into ‘shorts’.
LEGISLATIVE ‘SHORTS’
Easing Up on Fraud Guidelines?Law360 reported last week on the U.S. Sentencing Commission interest in modifying the 2B1.1 theft/fraud guidelines.
The USSC said it will consider Guideline reforms to the outsized role of loss calculation in driving the Guidelines advisory sentencing range, one of several priorities the agency has marked for closer examination.
The examination includes a reassessment of the role of actual loss, intended loss and gain in guidelines calculation, and whether the fraud guidelines as they stand “appropriately reflect the culpability of a defendant and harm to victims.”
Also on the table are whether to adjust the applicable loss guidelines for inflation and adjust for the role the defendant played in the crime, including minor roles and those who abuse positions of trust.
More on Rescheduling Marijuana:After telling donors earlier this month that he was considering rescheduling marijuana, President Trump said at an August 11th press conference, “We’re looking at reclassification, and we’ll make a determination over, I’d say, the next few weeks,” The Hill reported.
The Biden administration had sought to reschedule cannabis from Schedule I to the lesser Schedule III but left the process unfinished. The move would bring negligible changes in criminal justice reform but may pave the way for legislative or guidelines reform.
The Hill reported that Adam Smith, executive director of the Marijuana Policy Project, said the Biden rescheduling effort stalled due to a resistant DEA.
The Dept of Health and Human Services recommended in 2023 that marijuana be reclassified as a Schedule III drug, one that has a “moderate to low potential for physical and psychological dependence.”
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
Summer is ending with back-to-school, football, and cooler days upon us. In commemoration of a short summer, I am condensing a surprising amount of news from last week into ‘shorts’.
PROSECUTORIAL ‘SHORTS’
PACER Hack: A hack of the lawyer-filing side of the PACER case filing system discovered last month let a “nation-state” sponsored group of hackers steal petabytes of sensitive court data – such as sealed filings and presentence reports – using a system vulnerability that’s been known for years.
Politico reported on August 6th that officials said the theft affected at least a dozen district courts and mimicked a 2020 breach of the system.
Wiredreported that the breach has pushed some courts onto backup paper-filing plans after sealed records were compromised, possibly exposing the identities of confidential informants and cooperating witnesses. The cyber intrusion was not particularly sophisticated, Politico said, a fact that should be deeply concerning.
Trump DOJ Can’t Unring the Bell:The Biden Dept of Justice indicted an LA deputy sheriff for an 18 USC § 242 civil rights violation, after he beat and pepper-sprayed a woman who was videoing him handcuffing a suspect.
The sound of a bell unringing?
However, after a jury convicted him, the DOJ changed hands. A Trump-appointed US Attorney asked the district court to sentence the deputy to probation.
After the court imposed a 4-month sentence, the US Attorney moved to dismiss the whole case under Federal Rule of Criminal Procedure 48, thus sparing the defendant even a day in jail.
Last week, the court refused the government’s motion.
The District Judge ruled that the “record reflects that the Government’s newest Rule 48(a) motion is motivated not by the discovery of new evidence or reconsideration of the case, but by disagreement with the Court’s decision to sentence Defendant to four months in prison… Put simply, the Government disagrees with the Court’s sentencing decision and is using Rule 48(a) to erase it. It has even acknowledged that this is its reason for seeking dismissal… Using Rule 48(a) in this way is contrary to the public interest. The government cannot circumvent the Court’s sentencing authority by waiting until after a sentence has been imposed to selectively dismiss charges with the goal of obtaining a desired result.
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
Summer is ending with back-to-school, football, and cooler days upon us. In commemoration of a short summer, I am condensing a surprising amount of news from last week into ‘shorts’.
BOP ‘SHORTS’
Hot Fun in the Summertime:Forty House Democrats signed a letter from Rep Alma Adams (D-NC) last week to Bureau of Prisons Director William K. Marshall III expressing concern over the effects of extreme heat on BOP prisoners.
The letter asked 13 detailed questions about air conditioning in BOP facilities, including about prisons without AC or with broken systems, how many heat-related health incidents (illnesses, strokes, and deaths) have occurred since 2022, and any mitigation strategies used where prisoners and staff are in excessive heat.
The letter seeks a response by September 10, 2025.
BOP Unions Continue ‘Drug Poisoning’ Drumbeat: It’s been a year since BOP employee Marc Fischer died after coming in contact with purported legal mail to a USP Atwater inmate that was soaked in a liquid “spice” mixture. The death sparked a flurry of hand-wringing over BOP employees in danger that was not even quelled by autopsy results showing Mr. Fischer died of a heart attack, not exposure to any drugs.
The facts have not detained BOP staff unions, who last week issued a press release asking, “Does another staff member have to die before the Federal Bureau of Prisons finally takes the crisis of drugs entering prisons through the mail seriously? It’s now been a year since Marc Fischer—a longtime mailroom supervisor at U.S. Penitentiary Atwater and former Coast Guard member—lost his life after being exposed to contaminated mail, just before his planned retirement. Since then, nothing has changed. Dangerous substances continue to pour into federal prisons weekly, and staff are left to fight this epidemic with outdated technology and little support from the Bureau.”
The press release asserted that in recent incidents, “17 officers at Thomson were hospitalized after exposure to dangerous substances in the mailroom and required Narcan to survive. Days earlier, ten staff members at FCC Victorville suffered exposures over a four-day stretch.”
The BOP was a bit more circumspect: “We can confirm that several employees at the Federal Correctional Institution (FCI) Thomson have begun feeling unwell following a possible exposure to an unknown substance. Some employees were transported to a local hospital by emergency medical services (EMS).”
In a separate report, WDTV reported that 5 FCI Hazelton employees were taken to the hospital last Wednesday morning, according to the BOP, after being exposed to drugs. The report said, “Any time fentanyl or carfentanil is found, the officers are being sent to the hospital as a precaution…”
Dublin Scandal Nets More Guilty Pleas: Former BOP correctional officers Jeffrey Wilson and Lawrence Gacad have pled to sexually abusing female inmates at FCI Dublin, formerly a low-security female prison.
Wilson and Gacad were charged last June and entered pleas on August 4. They are the eighth and ninth BOP staffers to have either pled guilty or been convicted involving sexual abuse of Dublin inmates. The BOP has already agreed to a $116 million payout to abused women.
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
Summer is ending with back-to-school, football, and cooler days upon us. In commemoration of a short summer, I am condensing a surprising amount of news from last week into ‘shorts’.
CASE ‘SHORTS’
‘Structural Errors’ Are Not a ‘Pass,’ 11th Says: The Parnell brothers ran a big peanut factory that accidentally killed 90 people or so nationwide with dangerous bacteria in the company’s products. When an investigation showed they had been falsifying certifications that their products were pure, they were indicted for fraud.
The brothers hired a team of experienced defense attorneys for the well-publicized trial but got convicted anyway. After losing appeals, they filed 28 USC § 2255 motions claiming their lawyers were ineffective.
Back in 2010, the Supreme Court held in Skilling v. United States that in some cases, prejudice to a defendant can be presumed if he is denied a change of venue because of pretrial publicity. Such a denial is a structural error, one that affects the framework within which the trial proceeds, rather than being simply an error in the trial process itself. Because a structural error “defies analysis by harmless error standards,” the Supreme Court has held, when such an error occurs, prejudice to the defendant is presumed.
The Parnells’ lawyers considered asking for a change of venue because of publicity but rejected it after investigation, because they concluded that a trial in the Albany, Georgia, area – where people understood peanut production and processing – could be better for defendants hoping to sell their argument that they were over-regulated and being scapegoated. In their § 2255 motions, the brothers this decision was deficient representation and – because the Skilling error was structural – they didn’t have to show that their lawyers’ blunder had prejudiced them. Instead, that could be presumed.
Last week, the 11th ruled that just because the underlying error might be structural did not mean that the Parnells’ claim that their lawyers had screwed up by not asking for a Skilling change-of-venue didn’t have to show prejudice. What was more, their Parnells’ lawyers – who brought about 150 years of trial experience to the table – had investigated whether to seek a change of venue and decided that the slim chance the Parnells could meet the Skilling standard and the possible benefits of a local jury where at least one juror understood how tough a business peanut processing could be, argued against seeking a change of venue.
“This case involves a challenge to a carefully conceived and thoroughly thought-out strategic decision made by two teams of experienced counsel after a full investigation,” the Circuit ruled. “It is not one of those rare, few and far between cases in which we will second-guess their strategic decision and find that they performed outside the wide range of reasonable professional assistance. They did not.”
Federal Territorial Jurisdiction Question Not Easily Answered: Federal prisoner Jesse Perez committed a crime while locked up at FCI Petersburg. After being convicted at trial, he argued that the government had not proven to the jury that the crime was committed within the “special maritime or territorial jurisdiction” of the federal government, and – without that showing – the crime was not prosecutable in a federal court.
Last week, the Court ruled that the issue of “special maritime or territorial jurisdiction” has two parts. The jury must find as fact where the crime occurred, in this case at FCI Petersburg. Whether FCI Petersburg is within the special maritime or territorial jurisdiction of the federal government is a purely legal question that the judge, not the jury, decides.
In this case, however, the district court goofed. Under 18 USC § 7(3), a three-part test for special territorial jurisdiction requires (1) federal acquisition of the property; (2) state consent to federal (or cession of its own) jurisdiction; and (3) federal acceptance of jurisdiction. The district court failed to evaluate each element, instead just taking judicial notice that the prison was part of the special territorial jurisdiction of the United States because the government has “practical usage and dominion” over FCI Petersburg.
That’s not enough, the 4th Circuit said, sending the case back for the district court to apply the right test.
United States v. Perez, Case No. 24-4039, 2025 U.S. App. LEXIS 20396 (4th Cir. Aug. 12, 2025)
~ Thomas L. Root
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The 5th agreed that Ernie’s conduct – possessing a gun – was plainly covered by the 2nd Amendment. However, the Circuit held, disarming him was consistent with the nation’s historical tradition of firearm regulation. Ernie’s predicate felony of aggravated assault with a firearm was a violent crime. The appellate court ruled that disarming people with violent criminal histories is consistent with historical tradition. Even if Ernie’s offense involved only negligent discharge of a firearm, it still fell “within the tradition” of disarming people who menace others with firearms or disrupt public order.
