Tag Archives: 18 usc 922(g)

Bruen Claims Another Victim (Albeit Reluctantly) – Update for July 6, 2023

Leave a comment

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

DISTRICT COURT SAYS § 922(g)(1) UNCONSTITUTIONAL

Deep in the Old South, federal judge Carreeves230706lton W. Reeves holds court. He is black, the first in his family to attend college, an Obama appointee with a resume of work for the ACLU. He wrote the district court decision that was ultimately reversed by the Supreme Court in Dobbs v Jackson Women’s Health Organization (the decision that struck down Roe v. Wade), and he has repeatedly blocked Mississippi laws widely considered to be discriminatory to LGBT persons.

In short, he’s a guy conventional wisdom figures to be in line with all that President Biden and the progressive wing of the Democratic Party hold dear, so much so that Biden last year made him the new chairman of the Sentencing Commission.

So you would expect Judge Reeves to be all in on gun control in general and the value of laws prohibiting felons from possessing guns in particular. You would be wrong.

Last week, Judge Reeves ruled in a 75-page opinion that the felon-in-possession statute violates the 2nd Amendment.

The government was prosecuting Jessie Bullock, who as a 31-year-old hothead had gotten into a fatal bar fight. He did time for manslaughter. Now, the 59-year-old Jessie was caught in possession of a .22 level-action rifle and a .22 revolver, hardly the stuff of gang wars or bank robberies. No matter. The government charged him with being a felon in possession.

daveanddad230706Jessie’s public defender moved to dismiss the charge as unconstitutional in the wake of last year’s Supreme Court decision in New York State Rifle & Pistol Ass’n, Inc v. Bruen.

Judge Reeves, who wanted the parties to agree that an expert historian be appointed to give a report on the history of laws prohibiting felons from having guns, lamented the lack of historical evidence supporting the cases the government cited in support of its position. “It is unsurprising that the government relies on jurisprudence filled with such methodological flaws,” he observed tartly, because “[t]he same errors define the Supreme Court’s own Second Amendment jurisprudence…”

Relying on the 3rd Circuit’s en banc Range decision of three weeks ago, Judge Reeves held that “the government[] does not identify a “well‐established and representative historical analogue” from either era supporting the categorical disarmament of tens of millions of Americans who seek to keep firearms in their home for self‐defense.

historyvictors230706Although he ruled against the government, Judge Reeves criticized the judicial philosophy of “originalism,” underlying Bruen that holds that the Constitution should be interpreted as it was understood when it was written. For much of American history, he said, interpretation of the Constitution has changed to incorporate modern values, citing the 2015 Obergefell ruling legalizing same-sex marriage.

“The next generation will have its own conceptions of liberty,” the Judge wrote. “It will interpret the principles of the Constitution, enduring as they are, differently than this generation has interpreted them. Change is unstoppable.”

United States v. Bullock, Case No 3:18-CR-165, 2023 U.S. Dist. LEXIS 112397 (S.D.Miss., June 28, 2023)

New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. —, 142 S.Ct. 2111, 213 Led 2d 387 (2022)

Reuters, Mississippi judge, dismissing gun charge, assails Supreme Court gun ruling (June 29, 2023)

– Thomas L. Root

8th Circuit Writes History on Constitutionality of 922(g) – Update for June 5, 2023

Leave a comment

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

HISTORY LESSON

gunb160201Since the Supreme Court’s New York State Rifle & Pistol Ass’n, Inc. v. Bruen decision almost a year ago, the constitutionality of just about every federal limitation on gun possession (short of machine guns and howitzers) has been thrown into question. The most important limitation to most of this site’s readers is 18 USC § 922(g)(1), the messy statute prohibiting some convicted felons (but not all of them, see 18 USC § 921(a)(20) for the confusing details) from possessing guns or ammo.

Courts have ruled that prohibiting the users of controlled substances from possessing guns is unconstitutional, something that Hunter Biden’s lawyers are very interested in. One U.S. District Court has held that denying gun possession to someone under indictment is unconstitutional. And the 5th Circuit has held that denying a gun to someone subject to a domestic protection order is unconstitutional.

The most-watched case currently is the 3rd Circuit’s Range v. Attorney General. After a three-judge panel summarily said that § 922(g)(1)’s limitation preventing a guy convicted of a minor fraud three decades ago from having a gun was constitutional, the Circuit last January withdrew the decision and sent the case to an en banc reconsideration. That decision has not yet been handed down.

Last week, the 8th Circuit jumped into the fray, rejecting a defendant’s claim that “he had a constitutional right under the 2nd Amendment to possess a firearm as a convicted felon.”

bersa230605Defendant Edell Jackson was caught at a scene where shots had been fired with a cheap handgun in his pocket. He had two prior felony drug convictions. After a trial, he was convicted of being a felon in possession of a gun under 18 USC § 922(g)(1). An appeal, he argued that § 922(g)(1) is unconstitutional as applied to him because his drug offenses were nonviolent and did not show that he is more dangerous than the typical law-abiding citizen.

Last week, the 8th Circuit held that § 922(g)(1) was “not unconstitutional as applied to Jackson based on his particular felony convictions.” The 8th noted that Supreme Court gun decisions, including Bruen, recognized that an individual right to keep and bear arms should not “be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons” but rather is “subject to certain reasonable, well-defined restrictions.” Those assurances, the Circuit held, along with the history that supports limitations on gun possession by felons means there is “no need for felony-by-felony litigation regarding the constitutionality of § 922(g)(1).”

The Court marched through history, beginning with pre-colonial England and ending with the 1968 Gun Control Act, to argue that the right to bear arms was subject to restrictions, including “prohibitions on possession by certain groups of people.” The 8th noted that the now-withdrawn Range panel decision concluded that legislatures may disarm citizens who are not “law-abiding” (those unwilling to obey the laws “whether or not they had demonstrated a propensity for violence”). Edell’s argument was more refined: he contended that the constitution limited the laws to prohibiting gun possession “by those who are deemed more dangerous than a typical law-abiding citizen”).

The 8th held that by either § 922(g)(1) “is consistent with the Nation’s historical tradition of firearm regulation” and therefore constitutional:

We conclude that legislatures traditionally employed status-based restrictions to disqualify categories of persons from possessing firearms,” the 8th ruled. “Whether those actions are best characterized as restrictions on persons who deviated from legal norms or persons who presented an unacceptable risk of dangerousness, Congress acted within the historical tradition when it enacted § 922(g)(1) and the prohibition on possession of firearms by felons.

This Jackson panel decision – a ruling by three judges in the notoriously conservative Circuit – will hardly be as definitive as the Range decision expected from an en banc panel consisting of up to 25 active appellate judges, and it is certainly subject to attack for what I think is superficial historical analysis. But as a portent of how far Bruen may go in invalidating § 922(g)(1), Jackson is concerning.

There’s little doubt that the constitutionality of most if not all of § 922(g) will end up in front of the Supreme Court, but don’t look for that before 2025 at the earliest. All of this matters because it could invalidate thousands of § 922(g) convictions for people now serving sentences.

gun160718Meanwhile, remember United States v. Rahimi, the 5th Circuit decision that § 922(g)(8) – that prohibits people with domestic violence protection orders from gun possession – is unconstitutional? I reported that the government wasted no time seeking Supreme Court review. On May 30, defendant Rahimi filed his opposition to the government’s petition (after seven parties ranging from a New York county district attorneys’ group to California Governor Gavin Newsom filed petitions supporting grant of certiorari).

The very next day, the government asked SCOTUS to waive the usual two-week delay before considering the petition. With the delay, it is likely the Court will break for the summer without considering the petition until the end of September. The government is in a hurry to get this case heard.

United States v. Jackson, Case No 22-2870, 2023 U.S.App. LEXIS 13635 (8th Cir. June 2, 2023)

Range v. Attorney General, 53 F.4th 262 (3d Cir. 2022) (per curiam), rehearing en banc granted, 56 F.4th 992 (3d Cir. 2023)

Sentencing Law and Policy, 8th Circuit panel rejects constitutional challenge to federal felon-in-possession prohibition (June 2, 2023)

United States v. Rahimi, Case No 21-11001, 61 F.4th 443 (5th Cir. 2023)

Rahimi v. United States, Case No 22-915 (Petition for certiorari filed Mar 17, 2023)

CNN, Texas man urges Supreme Court to stay out of major Second Amendment case (May 31, 2023)

– Thomas L. Root

Maybe Guns and Drugs Do Mix – Update for April 14, 2023

Leave a comment

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

GUNS, DRUGS AND ROCK AND ROLL

Last summer’s Supreme Court decision in New York State Rifle & Pistol Ass’n v. Bruen continues to reverberate.

Last week, a second federal district court ruled that 18 USC § 922(g)(3) – which bans people who consume unlawful controlled substances from possessing guns or ammo – is unconstitutional. The court held that the same legal principle also applies to the sale and transfer of guns to such people.

Smoke enough, and you might see this... but it wouldn't violate § 922(g)
Smoke enough, and you might see this… but it wouldn’t violate § 922(g)

Bruen held that a court must “determine whether ‘the Second Amendment’s plain text covers an individual’s conduct,’” If it does, Constitution “presumptively protects that conduct.” Then, in order to regulate the conduct, the Government “must justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation,” pointing to “historical precedent from before, during, and even after the founding” of the country that “evinces a comparable tradition of regulation.”

Applying Bruen, courts have found that § 922(g) bans on possession of guns by people subject to domestic protection orders and by people unlawfully using controlled substances violate the Second Amendment. Currently, a Third Circuit en banc court is wrestling with whether the Second Amendment bars the Government from prohibiting the possession of firearms by an individual convicted of the felony of submitting a false application for food stamps over 25 years ago. The Dept of Justice has appealed decisions that the § 922(g)(3) ban on drug users possessing guns is unconstitutional in the 10th Circuit. A group of marijuana users seeking the right to possess guns have appealed an adverse ruling in the 11th Circuit.

In last week’s decision, the U.S. District Court for the Western District of Texas threw out charges that Paola Connelly had violated both 18 USC § 922(g)(3) by possessing a gun as an admitted pot smoker and 18 USC § 922(d)(3) by transferring a gun to her husband, an alleged cokehead.

potscooby180713Neither Paola nor her hubby had been proven to be unlawful drug users. But in the pretrial motion decision, Judge Kathleen Cardone said it didn’t matter if they had been: “[E]ven if Connelly and her husband used controlled substances to the extent alleged by the Government, the Court would find § 922(g)(3) and (d)(3) unconstitutional… Connelly’s alleged drug use more resembles private drinking than public drunkenness, casting doubt on the idea that history supports criminalizing or disarming her for this behavior,” Cardone writes. “And more generally, nothing in § 922(g)(3) limits its applicability to public dangers or active intoxication, putting it out of step with colonial-era attitudes.”

The Judge was clearly troubled that unlike prohibitions on felons possessing guns, § 922(g)(3) does not provide for any pre-deprivation process. The Government need not conduct a hearing or make any offer of proof before it deems someone an “unlawful user” of controlled substances and proceeds to bludgeon the unfortunate stoner with a § 922(g)(3) felony. Citing a prior Western District of Oklahoma case, Judge Cardone complained that “this lack of process makes § 922(g)(3) an ‘outlier in our legal tradition.’”

For “the millions of individuals who use marijuana in states that have legalized the practice,” the Judge observed, “§ 922(g)(3) categorically prevents them from owning a firearm without a hearing or any preliminary showing from the Government. They must choose to either stop their marijuana use, forgo possession of a firearm, or continue both practices and face up to fifteen years in federal prison.”

America’s historical tradition of disarming “unlawful” individuals, the Court held, “appears to mainly involve disarming those convicted of serious crimes after they have been afforded criminal process.” This tradition makes § 922(g)(3) unconstitutional.

Notably, Judge Cardone quoted a 2019 dissent that Supreme Court Justice Amy Coney Barrett wrote as a judge on the U.S. Court of Appeals for the 7th Circuit. Barrett argued that the federal ban on gun possession by people with nonviolent felony records sweeps too broadly. In making that case, she took it for granted that a nonviolent misdemeanor is not enough to justify depriving someone of his Second Amendment rights.

marijuana160818Reason observed, “The Biden administration continues to argue that forbidding cannabis consumers to own guns is like telling people not to carry guns when they’re drunk. The Justice Department, meanwhile, is appealing Wyrick’s decision, and it can be expected to appeal Cardone’s as well… For those keeping partisan score, it is notable that all three of these judges were appointed by Republican presidents: Cardone by George W. Bush, Wyrick and Winsor by Donald Trump. Their disagreement seems to reflect evolving conservative views of marijuana as well as the impact of Bruen.

Look for plenty more judicial rock-and-roll on gun issues.

United States v. Connelly, Case No EP-22-CR-229(2)-KC, 2023 U.S. Dist. LEXIS 62495 (W.D. Tex. Apr. 6, 2023)

United States v. Harrison, Case No CR-22-00328-PRW, 2023 U.S. Dist. LEXIS 18397, (W.D. Okla. Feb. 3, 2023)

Kanter v. Barr, 919 F.3d 437 (7th Cir. 2019) (Barrett, J., dissenting)

Reason, Another Federal Judge Rejects the DOJ’s Argument That Cannabis Consumers Have No Second Amendment Rights (April 11, 2023)

– Thomas L. Root

DOJ Seeks Expedited Certiorari on Rahimi – Update for March 23, 2023

Leave a comment

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

DOJ SEEKS CERTIORARI ON 5TH CIRCUIT RAHIMI DECISION

bad driver230323You may recall Zack Rahimi, a man who responded to the all-too-common embarrassment of having his credit card declined in the usual way. After being unable to use plastic to pay for his Whataburger Patty Melt (ranked as the chain’s best sandwich, by the way), Zack understandably drew his handgun and opened fire on houses, police cars, and pretty much anything else in front of the muzzle of his pistol. He even shot at bad drivers (something we’ve all had the urge to do from time to time).

At the time, Zack was subject to a civil protection order for having stalked an ex-girlfriend. After the locals got done charging him for felony hangry-ness, the Feds weighed in, charging him with possessing a firearm while being subject to a domestic violence protection order, a violation of 18 USC § 922(g)(8). But in the wake of the Supreme Court’s decision last June in N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, the 5th Circuit ruled that prohibiting people from possessing guns because of domestic violence protection orders violates the 2nd Amendment. The Circuit said:

The question presented in this case is not whether prohibiting the possession of firearms by someone subject to a domestic violence restraining order is a laudable policy goal,” the Circuit said. “The question is whether 18 U.S.C. § 922(g)(8), a specific statute that does so, is constitutional under the 2nd Amendment of the Constitution. In the light of N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen… it is not.

stalking230323The government has now filed a petition for writ of certiorari with the Supreme Court, and has done so quickly. The government could have sought en banc review, asking the entire 26-judge court to consider the issue. Instead, the government explained in its petition for writ of cert, due to “the significant disruptive consequences of the Fifth Circuit’s decision, the government is filing this petition for a writ of certiorari on a highly expedited schedule — a little more than two weeks after the issuance of the Fifth Circuit’s final amended opinion — in order to allow the Court to consider the petition before it recesses for the summer.”

The government argues in its petition that the appellate decision “overlooked the strong historical evidence supporting the general principle that the government may disarm dangerous individuals… Although courts interpreting the 2nd Amendment must consider text, history, and tradition, they should not focus on whether the law at issue has ‘a historical twin,’” the government contends “To the contrary, this Court emphasized that ‘even if a modern-day regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass constitutional muster.’”

doitnow160817Writing in his Sentencing Law and Policy blog, Ohio State University law professor Doug Berman wonders whether the Supreme Court will be amenable to the government’s request to “take up the case on an expedited basis even before there is a direct circuit split.” He suggests that “expedited” may have a more glacial meeting at the high court: “I suspect the Justices will get back to these Second Amendment matters pretty soon. But ‘pretty soon’ in Supreme Court timelines does not really mean ‘soon’…”

There have been District Court decisions elsewhere that have relied on Bruen to gut § 922(g) limitations on gun possession by people under indictment, possession of guns with obliterated serial numbers, and possession of guns by marijuana users.  In the 3rd Circuit, the appeals court is examining whether the § 922(g) proscription on gun possession by people with felony convictions can survive Bruen.  And on Monday, a U.S. District Court in the Central District of California struck down the state’s Unsafe Handgun Act – which required all handguns sold in the state to have three features which not a single handgun in the world has – as unconstitutional under Bruen.

Perhaps the legal tsunami of attacks on § 922 alone – even absent a circuit split – will force SCOTUS’s hand and bring us another gun decision sooner rather than later.

United States v. Rahimi, Case No. 21-11001, — F.4th —, 2023 U.S. App. LEXIS 5114 (5th Cir., March 2, 2023) (amended opinion)

Petition for Writ of Certiorari, United States v. Rahimi, Case No. 22-915 (Supreme Court, filed March 17, 2023)

N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, — U.S. —, 142 S. Ct. 2111, 213 L. Ed. 2d 387  (2022)

The Hill, DOJ asks SCOTUS to review ruling that overturned firearm ban for those with domestic violence restraining orders (March 18, 2023)

Sentencing Law and Policy, With DOJ asking, will SCOTUS quickly take up a post-Bruen case on gun possession by thoe subject to DV orders? (March 20, 2023)

Boland v. Bonta, Case No. SACV 22-01421-CJC (March 20, 2023)

Thomas L. Root

Drugs, Guns and Rockin’ Appeals – Update for March 14, 2023

Leave a comment

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

SPEAKING OF GUNS…

iloveguns221018… as we were yesterday (at least obliquely) you may recall that last month an Oklahoma district court threw out an 18 USC § 922(g)(3) indictment against a man for possessing a gun along with some personal-use marijuana. The district court dismissal was based on the 2022 Supreme Court New York State Rifle & Pistol Ass’n v. Bruen decision.

Last Friday, the government filed a notice of appeal, asking the 10th Circuit to review the case.

Another case, Cooper v. Attorney General, brought by three Floridians using medical marijuana, is currently being briefed in the 11th Circuit. That case also questions § 922(g)(3)’s constitutionality.

Order (ECF 36), United States v. Harrison, Case 5:22-cr-00328, 2023 US DistLEXIS 18397 (WDOkla, February 3, 2023)

Marijuana Moment, Justice Department Appeals Federal Court Decision That Struck Down Gun Rights Ban For Marijuana Consumers (March 6, 2023)

New York State Rifle & Pistol Ass’n v. Bruen, 597 US —, 142 SCt 2111 (2022)

Cooper v. Attorney General, Case No 22-13893 (11th Cir)

– Thomas L. Root

Third Circuit May Be Gunning for § 922(g) Felon-In-Possession – Update for January 10, 2023

Leave a comment

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

3RD CIRCUIT CALLS FOR EN BANC REHEARING ON WHETHER FELON-IN-POSSESSION IS CONSTITUTIONAL

On November 16, 2022, the 3rd Circuit upheld the constitutionality of the 18 USC § 922(g)(1) felon-in-possession statute. That ruling has just been vacated (and may be in jeopardy).

gun160711Bryan Range, who had been sentenced to probation a quarter century ago for $2,500 in food stamp fraud, had sued the Attorney General for the right to buy a gun, arguing that after last June’s Supreme Court decision in New York State Rifle & Pistol Ass’n v Bruen, § 922(g)(1)’s denial of his right to own a gun because of a prior felony conviction was a 2nd Amendment violation.

In November, a three-judge panel denied Bryan’s claim in a per curiam opinion. This normally suggests the panel found the holding was so unremarkable as not to require a signed decision. In this case,  however, the panel said it was so issued to “reflect both its unanimity and the highly collaborative nature of its preparation.”

The lengthy order held that Bryan’s 25-year-old “conviction places him outside the class of people traditionally entitled to 2nd Amendment rights.”

Last Friday, the Circuit granted Bryan’s petition and ordered rehearing in front of all 14 of the appellate court’s judges on February 15th.

iloveguns221018The speed with which the full Court ordered rehearing – just three days after Bryan filed his petition – suggests a majority of the judges on the Circuit are very motivated by the issue. Ohio State University law professor Doug Berman, writing yesterday in his Sentencing Law and Policy blog, observed, “I do not know enough about the particulars of all the Third Circuit judges to make confident predictions about how Range will be resolved after en banc reconsideration. But, generally speaking, full circuits do not take up issues en banc when most of the judges are generally content with the panel outcome.”

If the Court ultimately reverses the per curiam decision, the Circuit would be the first to declare § 922(g) unconstitutional after the Bruen decision.

Order Granting Rehearing, Range v. Attorney General, Case No 21-2835, 2022 U.S. App. LEXIS 36088 (3d Cir., January 6, 2023)

Sentencing Law and Policy, En banc Third Circuit to reconsider constitutionality of § 922(g)(1)’s felon-in-possession gun prohibition after Bruen (January 9, 2023)

N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 213 L. Ed. 2d 387 (June 23, 2022)

– Thomas L. Root

Free Willie (1st Circuit-style) – Update for April 19, 2022

Leave a comment

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

WILLIE GOT HIS GUN…

freewilly220419Back in 2009, Willie Minor got into a minor beef with his wife that led to him being charged with domestic violence. When the Maine court told Willie that if he got convicted, he couldn’t possess a gun, Willie refused to plead to the charge (despite the prosecutor’s offer of no jail time).

The Maine prosecutor amended the charge to a simple “Assault, Class D” and struck out the sentence in the complaint stating, “this conduct was committed against a family or household member…” The judgment and commitment form had initially been printed with the offense “Domestic Violence Assault,” but the words “Domestic Violence” had been crossed out by hand. The assistant district attorney told Willie this change assured that Willie could continue to own firearms.

Six years later, Willie was caught with a handgun that he was sure he was allowed to have. The Feds this time (no county assistant district attorney) charged Willie with an 18 USC § 922(g)(9) felon-in-possession charge. Well, not really a “felon” in possession, but rather a wife-beater in possession: § 922(g)(9) prohibits possession of a gun by someone convicted of a misdemeanor crime of domestic violence (MCDV).

Willie went to trial, arguing that he hadn’t been convicted of an MCDV, and even if he had, he had no idea that he had. Relying on Rehaif v. United States, Willie argued the government had to prove he knew it was illegal for him to have the gun. The government argued Willie only needed to know he had done the acts that led to the assault conviction, and because the assault was against a family member – regardless of what the state conviction documents said or did not say – he had the guilty knowledge that supported the conviction.

Last week, the 1st Circuit split the case down the middle but vacated Willie’s conviction in the process. The Circuit agreed it is no defense for those charged with a 922(g) offense to say that they did not know that persons convicted of misdemeanor crimes of domestic violence could not possess guns. But, the 1st said, “while a defendant need not have known that possessing firearms was unlawful… the government need[s to] prove that he knew he violated the material elements of § 922(g)… which in this case means that he knew he had been convicted of a misdemeanor crime of domestic violence.”

manyguns190423In this case, whether the defendant knew was a dicey proposition. Willie had no lawyer for the assault conviction, and the Maine assistant DA told him that changing the domestic violence charge to a simple assault would let him keep his guns. But – as I have pointed out repeatedly where the definition of “crime punishable by imprisonment for a term exceeding one year” (§ 922(g)(1)) is concerned – the definitions undergirding Section 922 can be tricky. MCDVs are like that. They are defined as any misdemeanor assault where the victim is a family member or significant other. The offense doesn’t have to be called “domestic violence,” or even specify the victim’s connection to the defendant. What’s more, the court said, a § 922(g) usually results from the defendant having been convicted of a felony in a prior case where he had been represented by counsel. “And,” the Circuit said, “competent defense counsel is usually going to advise the client of the serious collateral ramifications of conviction.” (This pollyannish observation is laughable, but we’ll reserve discussion of it for another time).

So who cares about Willie’s victory (besides Willy, of course)? This decision could have ramifications for § 922(g)(1) felon-in-possession offenses. As I noted, the definition of a “crime punishable by imprisonment for a term exceeding one year” is detailed and legalistic, set out in 18 USC 921(a)(20). The logic used by the 1st Circuit in freeing Willie could well apply to any 922(g) conviction.

United States v. Minor, Case No 20-1903, 2022 U.S. App. LEXIS 9632 (1st Cir., Apr. 11, 2022)

– Thomas L. Root

What Part of a Gun is a Gun, 8th Circuit Ponders – Update for August 16, 2021

Leave a comment

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

PARTS IS PARTS

I waste a lot of brain space recalling TV ads. Wendy’s had one in the 1980s belittling places that sold processed chicken. “Parts is parts,” the bored counterman told the skeptical customer.

parts210816That tagline rings true with a vengeance for firearms. A conviction under 18 USC § 922 requires proof that the firearm in question must have traveled in interstate commerce. Congress had to include the provision in order to be able to pass enforceable legislation. Yet the interstate commerce requirement can lead to some strange results.

If you’re a convicted felon, you can legally own a Smith and Wesson revolver. Just live in Massachusetts. Want a TEC-9, maybe for duck hunting? Move to Miami. If you live in the same state in which the firearm was made and sold, possession is not prohibited by 18 USC 922(g).

Cautionary note: Just don’t ever buy any ammo. That’s a different story.

Notguns170330Not so with the gun itself. The statute (18 USC 921(a)(3)) defines a “firearm” as “(A) any weapon… which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; [or] (B) the frame or receiver of any such weapon.” The frame or receiver is defined by regulation as the “part of a firearm which provides housing for the hammer, bolt or breechblock, and firing mechanism, and which is usually threaded at its forward portion to receive the barrel.” 27 CFR 478.11. Which brings us to the strange world of the AR-15.

One of the worst kept secrets in America is that anyone with a drill press or router and a few hundred bucks in parts can build an AR-15 lower receiver at home in a few hours. The chunk of aluminum or plastic that gets milled into a lower receiver can be bought online, and because it’s only 80% complete, it is not a firearm under the law (for now, but new rules are coming). Once the home hobbyist completes the lower receiver and mates it with an upper receiver (many versions of which are available online and which in and of themselves are not defined as “firearms” either), he has a completed firearm. Because the part the ATF considers to be the “firearm” – the lower receiver – was just a block of metal when it crossed state lines, no firearm had crossed state lines, and a former felon who possessed one is not violating § 922(g).

gunar15lower210816By a weird twist, the ATF defines the frame or receiver of a firearm to include trigger parts, the bolt, and possibly the threads for mounting the barrel. This definition makes great sense for a revolver, semi-automatic pistol, and most rifles. But the AR-15 has two separate parts, a lower receiver that has the trigger parts and magazine well, and an upper receiver holding the bolt, bolt carrier, and barrel threads. At least one federal district court has thrown out a felon-in-possession case where the defendant had a box full of AR-15 lower receivers, holding that – no matter what the ATF tried to argue in court – its own definition held that an AR-15 lower receiver is not a firearm.

gunar15upper210816(Yet another cautionary note: President Biden has ordered the ATF to redefine various other parts of the guns as firearms that require serial numbers, so this loophole may be closing. But millions of AR-15 upper receivers, barrels, magazines, and the such without serial number will remain in circulation.)

Which brings us to a decision last week in the 8th Circuit. Luke Burning Breast had a prior felony conviction. After local police confiscated an AR-15 style rifle from him, the Feds brought an 18 USC 922(g) felon-in-possession case against him.

Luke argued that the lower receiver was not a firearm under the ATF’s own definition. While there was no question the lower – which had a serial number – had been made in another state, Luke argued that only the lower and upper receivers together make a firearm, and because the government did not prove the upper receiver traveled in interstate commerce, the evidence was insufficient to convict him of being a felon in possession of a firearm.

guns170111Last week, the 8th Circuit shot Luke down in a 2-1 decision remarkable for its circular reasoning. The majority argued that the ATF’s definition of a frame or receiver is only one way to define a firearm. “Another way is if the weapon will, is designed to, or may readily be converted to expel a projectile by the action of an explosive. Notwithstanding the lack of evidence establishing the upper receiver had, in fact, been swapped out, there was no evidence that at any point the firearm was anything but a weapon that could, or was designed to, or may readily be converted to expel a projectile by the action of an explosive. Here, it is immaterial whether there was proof that the upper receiver traveled in interstate commerce when the evidence established a completed rifle capable of being shot traveled in interstate commerce prior to Burning Breast’s possession of it.”carriefgun170807

In other words, because the lower receiver was once part of an entire AR-15 that traveled in interstate commerce, the jury could infer that it had always been a firearm.

The dissent observed, “I grant that Burning Breast possessed a functional rifle. But it is not so clear that a jury could reasonably infer that it traveled in interstate commerce. In order for an inference to be reasonable, there must be some evidence to support it. But there is no evidence that anything other than the lower receiver moved in interstate commerce. The ATF agent admitted as much.”

The decision is interesting for what it implies. Had Luke made his own lower receiver – without a serial number – the government would have been unable to prove the firearm had ever crossed state lines, and Luke could not have been convicted.

United States v. Burning Breast, Case No 20-1450, 2021 U.S.App. LEXIS 23778 (8th Cir., August 11, 2021)

– Thomas L. Root

Sure You’re Innocent, But WHY Are You Innocent? – Update for July 12, 2021

Leave a comment

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

JUST SAYING IT DOESN’T MAKE IT SO

smile210712Sam Abram had a brief but prolific career as a bank robber, an occupation that Sam found to be more rewarding if he employed a smile and a gun rather than a smile alone. When the FBI nabbed him, Sam was convicted of the robberies and – for good measure – as a convicted felon in possession of a gun, a violation of 18 USC § 922(g).

Sam was convicted, lost on appeal, and then lost again on a post-conviction 28 USC § 2255 motion. Several years later, the Supreme Court held in Rehaif v. United States that to be convicted of being a felon-in-possession, the defendant had to actually know he was a member of a class of people prohibited from possessing a gun. In Sam’s case, Rehaif said he had to know he was a convicted felon at the time he possessed the gun.

Generally, a § 2255 motion is the only way to mount a post-conviction challenge to an unlawful conviction or sentence, but 2255 motions are pretty much one-to-a-customer. If you have already filed one § 2255 motion, you must get permission from the Court of Appeals to file a second one, and getting permission is tough. Under 28 USC § 2244, you must either show you have discovered new evidence you couldn’t have feasibly found before – evidence that would have been a home run with the jury – or that the Supreme Court had handed down a constitutional ruling made retroactive on appellate review.

Rehaif was a reinterpretation of a statute that virtually all of the Federal circuits had gotten wrong, but because it was a decision of statutory construction rather than a decision that 18 USC § 922(g) was unconstitutional, Sam couldn’t get leave to file a new § 2255 motion.

savings180618But § 2255 has a “savings clause,” § 2255(e), which lets people in Sam’s position file a traditional 28 USC § 2241 habeas corpus petition when a § 2255 motion “is inadequate or ineffective to test the legality of his detention.” And a § 2255 motion is “inadequate or ineffective” if “(1) the § 2241 petition raises a claim that is based on a retroactively applicable decision; (2) the claim was previously foreclosed by circuit law; and (3) that retroactively applicable decision establishes that the petitioner may have been convicted of a nonexistent offense.”

Sam filed a § 2241 petition, arguing that his § 922(g) conviction should be thrown out because his indictment never alleged he knew he had been convicted of a prior felony, and, by the way, he was actually innocent in that he didn’t know about his convicted-felon status. The district court shot down his § 2241 petition, and last week, the 5th Circuit agreed.

The Circuit said that Sam had to provide some evidence or argument supporting that he may have been convicted of a nonexistent offense. That requirement is “particularly important in the Rehaif context,” the 5th said, because “[c]onvicted felons typically know they’re convicted felons” (a Kavanaugh quip from last month’s Supreme Court decision, Greer v. United States). The Circuit said, “if a defendant was in fact a felon, it will be difficult for him to carry the burden… of showing a reasonable probability that, but for the Rehaif error, the outcome of the district court proceedings would have been different.”

innocent210712All Sam did was assert he was actually innocent, which was nothing more than parroting the standard for a “savings clause” § 2241 petition. Where a prisoner just does that – without providing some evidence or argument supporting his claim that he was unaware of his relevant status – then, the Circuit ruled, “he has failed to demonstrate that he is entitled to proceed under § 2255(e)’s savings clause.” And thus, a substantive defect in the prisoner’s showing becomes a procedural defect as well.

Abram v. McConnell, Case No. 20-30199, 2021 US App. LEXIS 20174 (5th Cir. July 7, 2021)

– Thomas L. Root

Buyer’s Remorse At SCOTUS Over Rehaif? – Update for April 29, 2021

Leave a comment

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

YOU’LL NEVER FORGET YOUR FIRST FELONY

Robber160229The Supreme Court heard oral arguments last week in United States v. Gary and Greer v. United States, two cases that would dramatically increase the benefits to defendants flowing from Rehaif v. United States.

But the devil’s in the details, and the prospects for neither one looks good. While it’s dangerous to predict the outcome of a case based on what you hear at oral argument, the Supremes seemed skeptical of the relief the defendants were urging and perhaps just a little uneasy over the genie that Rehaif let out of the bottle.

Mike Gary pled guilty to an 18 USC 922(g)(1) felon-in-possession charge. After Rehaif held that a defendant had to actually know that he or she fell within a class that was prohibited from having a gun, the 4th Circuit held that the district court’s failure to tell Mike that the government had to prove he knew he was a felon at the time he possessed the weapon was a “structural” error, and therefore his conviction had to be vacated whether or not the error made any difference in the proceeding’s outcome.

In the second case, Greg Greer was convicted by a jury of being a felon in possession. After Rehaif, the 11th Circuit reaffirmed his conviction on the ground that, according to his presentence report (which was not part of the evidence at trial), Greg had previously been convicted of five felonies and had served more than a year in prison. Therefore, the court reasoned, it wouldn’t have made any difference if his jury had been properly instructed about the government’s obligations, because if Rehaif had been the law, the government would easily have shown that Greg knew he was a prohibited felon. At the Supreme Court, Greg was arguing that the appellate court should have limited itself to the evidence in front of the jury (which of course contained nothing about Greg’s checkered past).

The justices were overtly skeptical of Greg’s argument. Justice Thomas asked, “Do you have any doubt in this case that the government would have preferred to introduce the evidence that you say is lacking here?… Your approach would put someone who stipulates in a better position than someone who actually went to trial.”

breyeradrift210429Justice Breyer, who wrote Rehaif, seemed to be looking for a way to limit any further fallout from the decision. “Why only look at the trial record?” he asked, before posing a number of hypotheticals. “There could have been something that happened before the trial [that is] an error,” the justice noted. “There could be something on the list of witnesses, there could be a limitation on what’s asked,” Breyer continued. “The possibilities are endless. So where does this idea come from you can only look at certain things?” he asked. “I’m totally at sea as to why or how to draw some line.”

The justices seemed similarly skeptical of Mike Gary’s case, with many noting that it could have widespread effects on existing convictions. Speaking about the proposition that an individual’s felony status “is not the kind of thing that one forgets,” Justice Kavanaugh said, “from that premise it seems odd to throw out all of the convictions” and asked Mike’s lawyer if he believed that premise to be true.

judgedefendant210429“The question shouldn’t be whether defendants are typically aware of the element or the element is typically satisfied,” Gary’s counsel replied. “The question should be whether the defendant when he pleads guilty understood that that was part of the charge and therefore was given an opportunity to exercise his own free will.”

Both cases will be decided by the end of June.

SCOTUSBlog, Justices wrestle with procedural issues stemming from their own federal criminal-law decision (April 21, 2021)

Law & Crime, SCOTUS Seems to Have Heeded Justice Alito’s Warning, Appears Unlikely to Reverse Gun Convictions (April 20, 2021)

– Thomas L. Root