Tag Archives: 18 usc 922(g)

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

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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

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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

Government Seeks to Undo 4th Circuit Rehaif ‘Structural Error’ Decision – Update for November 12, 2020

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GOVERNMENT SEEKS CERTIORARI ON GARY DECISION

The 4th Circuit’s United States v. Gary decision, which holds that Rehaif error in a case is structural and will get the defendant an automatic reversal, is an outlier. Every other circuit deciding the question holds that a defendant challenging his conviction under Rehaif has to show that, but for the error, he would have probably would have won.

guns200304Rehaif error, for those of you joining us late, flows from the Supreme Court’s 2019 decision in Rehaif v. United States. In that decision, the Court ruled that the crime of being a prohibited person (such as convicted felon or an alien in the United States illegally, but there are seven other categories as well). Before Rehaif, it was enough for the government to show that someone knew he or she possessed a gun while being a prohibited person. One did not have to know that he or she was “prohibited.”

This may seem like a distinction without a difference. Hamid Rehaif, a citizen of the United Arab Emirates, came to the U.S. lawfully to attend college. But he flunked out. Nevertheless, he remained in Melbourne, Florida, living openly and even indulging his passion for target shooting at a local gun range. When interviewed by government agents, he was cooperative and expressed his belief he was still entitled to be in the United States.

The government – being the government – didn’t just drive the cooperative Mr. Rehaif to the airport to catch Emirates’ next flight back to Dubai. That would have made too much sense. Instead, it indicted Hamid for being in illegal alien in possession of a firearm and ammunition, a violation of 18 USC §§ 922(g) and 924(a). Hamid’s lawyer did his best to defend Hamid by arguing that he had no idea he was in the United States illegally, but the trial court – based on clearly established law in the 11th Circuit (and most everywhere else) – ruled that whether Hamid knew he was prohibited from possessing a gun or ammo, or that he knew he was a member of a prohibited class under 18 USC 922(g), simply didn’t matter.

dubai201112

It took the Supreme Court to straighten things out (unfortunately for Hamid, two years after he finished his federal prison time and was sent home to the UAE). In Rehaif, the Court said that it was clear that the penalty language of 18 USC 924(a) – which prescribed the punishment for violating 18 USC 922(g) – required that the government prove that a defendant knew that he or she was a member of a prohibited class.

You may ask yourself, “How could someone not know he or she was a convicted felon?” It’s not that simple. The statute does not exactly say “convicted felon.” Instead, it says convicted of a crime “punishable by imprisonment for a term exceeding one year.” That phrase “punishable by imprisonment for a term exceeding one year,” in turn, is defined in 18 USC § 921(a)(20) as not including

(A) any Federal or State offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices, or

(B) any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less.

What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.

So the question is whether someone knew that he or she was convicted of (a) a crime punishable by more than a year in prison which (b)(1) was not one of the offenses related to the regulation of business practices, or (b)(2) classified by the state as a misdemeanor, or (c)(1) was expunged or (c)(2) set aside or (c)(3) for which a pardon had been issued or (c)(4) civil rights restored, unless (d) the restoration did not meet enumerated standards.

lost201112Whew. The better question is how someone without a law degree could possibly how whether he or she was a prohibited person or not.

That has not prevented lower courts asked to revisit § 922(g) convictions, generally but inaccurately called “felon-in-possession” convictions, from ruling that a conviction should be upheld if it was unlikely the defendant could have won even if the jury had been told the government had to prove the defendant’s knowledge. Except in the Fourth Circuit: there, the Gary decision established that Rehaif error is “structural,” that is, an error that permeates “the entire conduct of the trial from beginning to end” or “affect[s] the framework within which the trial proceeds…”

The 4th Circuit’s holding that Rehaif is structural error means that this Circuit is the place to be for people trying to get back into court on felon-in-possession charges. But the government, wanting to head that off at the pass, has filed a petition for certiorari with the Supreme Court, challenging the Gary decision. Although petitions for cert filed by defendants has about a 1% chance of grant, not so for the government. Government decisions to file for cert are not all that frequent, and the Supreme Court takes such petitions seriously.

Defendant Gary is to oppose the motion by December 8th.

United States v. Gary, Case No 20-444, Petition for Certiorari filed Oct 7, 2020

– Thomas L. Root

7th Circuit OKs Rehaif Relief Where Issue Is “Complex” – Update for July 6, 2020

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AIN’T SEEN NUTHIN’ YET

guns200304With the exception of the Fourth Circuit (which is a story for another time), courts of appeal agree that people convicted of being “prohibited persons” in possession of a gun have to meet the F.R.Crim.P. 52(b) “plain error” standard to raise the Supreme Court’s Rehaif case on appeal where they did not do so at trial.

That’s pretty relevant, because until Rehaif was handed down a year ago, no one was raising the issue at trial.

“Plain error” means you have to show that the trial court erred, that the error was plain (or obvious), that it affects your substantial rights, and that the error seriously affects the integrity of the justice system. In Rehaif cases, this means that the defendant had to show that there was a reasonable probability he or she would not have entered a guilty plea or been convicted if the error had not occurred.

To do this, the courts look at how likely it was the defendant would have known he or she belonged to a class of people not allowed to have guns. Sometimes that’s pretty easy to figure out: the defendant knew he or she had previously served more than a year for some prior crime. In that case, it’s hard for a defendant to argue he did not know that he had been convicted of a crime carrying a sentence of more than a year.

But what if the prohibited class the defendant belongs to is not all that clear? Bob Triggs’ kid made some stupid social media posts that suggested shooting up his school, so the police checked to be sure the boy had no access to firearms. In the process, they found that Bob – who had a few hunting rifles – had a 10-year old domestic battery misdemeanor. A conviction for a misdemeanor crime of domestic violence is as disqualifying for gun possession as a prior felony under 18 U.S.C. § 922(g)(9).

manyguns190423Bob said he had no idea he couldn’t have a gun, and he surrendered the rifles to the police. They turned it over to the U.S. Attorney (who rarely sees a case unworthy of throwing the might of the United States government at the hapless defendant), and Bob got indicted for a § 922(g) offense.

(In another world, the cops would have said, “Gee, Bob, now you know you can’t have guns,” and would have turned his rifles over to  the someone to sell them and given Bob the proceeds. But this is America, the world’s leading incarcerator of citizens. We just had to prosecute this hapless guy).

After Bob got convicted, Rehaif – which held that a defendant had to know that he or she was a member of a group prohibited from possessing a gun – was decided, and Bob raised it on appeal under the “plain error” standard. The 7th Circuit agreed the district court’s conviction of Bob without proof he knew he was in a prohibited class was an error, and it was pretty obvious.

The Circuit said to establish prejudice from the Rehaif error, Bob had to show a “reasonable probability that he would not have pleaded guilty had he known of the government’s burden to prove” he knew of the error.

“Many prosecutions under § 922(g) involve violations of… the felon-dispossession provision, which prohibits firearm possession by any person ‘who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year,’ the 7th said. “Under this simple definition, a defendant will have difficulty establishing prejudice from a Rehaif error because the new knowledge element is quite easy to prove, especially when the defendant previously served more than a year in prison… A defendant in that situation ‘will face an uphill battle to show that a Rehaif error in a guilty plea affected his substantial rights’ because the new understanding of the knowledge element doesn’t materially change the guilty-plea calculus.”

guns170111But what constitutes a misdemeanor crime of domestic violence, the Circuit ruled, is a very complex thing. “Given the comparative complexity of this definition,” the 7th Circuit said, “the guilty-plea calculus changes. Rehaif improves Triggs’s trial prospects, giving him at least a plausible argument that he was unaware that his 2008 battery conviction is a crime of this nature.”

The 7th Circuit may yet rue the day it held that 922(g)’s complexity gave a defendant a plausible reason to believe he was allowed to own guns. The definition of “crime punishable by imprisonment for a term exceeding one year” seems pretty straightforward until one reads the pretzel-like definition set out in 18 USC § 921(a)(20). It turns out that sometimes a crime is not a “crime” and a two-year sentence does not exceed one year, and other state laws having nothing to do with disqualifying crime turn it into an offense that doesn’t count.

So the 7th says that § 922(g)(9)’s complicated? You ain’t seen nothin’ yet.

United States v. Triggs, 2020 U.S. App. LEXIS 20542 (7th Cir. July 1, 2020)

– Thomas L. Root

You’re Not Exactly a Felon Yet – Update for September 30, 2019

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CONDITIONAL DISCHARGE NOT A CONVICTION

Tyrius Smith had a prior North Carolina case in which he had pled guilty, and then been “conditionally discharged.” But when he was caught with a gun, the Federal district judge called his prior a felony, and Ty was convicted of being a felon in possession of a gun in violation of 18 USC § 922(g).

manyguns190423Last week, the 4th Circuit reversed his conviction. “While there is no doubt that Ty possessed a firearm,” the 4th said, “we must decide whether he was a felon under federal law. Answering that question is surprisingly difficult. Federal law treats someone as a felon if “convicted” of a crime punishable by more than one year in prison. But what exactly counts as a ‘conviction’? In some cases the answer seems easy — for example, where a federal judge imposes a sentence after a jury has found the defendant guilty. In other cases it is hard; this is one of them.”

The North Carolina judge, after Ty’s guilty plea, imposed a “conditional discharge” as allowed by state law. This meant that without entering a judgment of guilt,” the court “deferred further proceedings and placed the person on probation… for the purpose of allowing the defendant to demonstrate the defendant’s good conduct.” If Ty fulfilled his probation conditions, the guilty plea would be withdrawn and the case dismissed.

Alas, Ty did not fulfill the conditions. Instead, he was caught with some guns, and his probation was violated by North Carolina. But before the conditional discharge could be withdrawn and he could be convicted in the state, the Feds charged him with the § 922(g).

The North Carolina felon-in-possession law defines “conviction” as “a final judgment in any case in which felony punishment, or imprisonment for a term exceeding one year… is authorized, without regard to the plea entered or to the sentence imposed.” Ty’s guilty pla and conditional discharge — as required by statute — was done without entering a judgment of guilt.” And without entry of a judgment, the 4th Circuit said, “and until the anticipated further proceedings” take place, the conditional discharge does not lead to a final judgment.”toughluck180419

So Ty dodged his Federal case. But he still has some ‘splainin’ to do to his North Carolina judge, and the smart money suggests that the state court is going to take the botched federal prosecution into account when it slams old Ty with time in state prison.

United States v. Smith, 2019 U.S. App. LEXIS 29218 (4th Cir. Sept. 27, 2019)

– Thomas L. Root

Dope Smokers Knew They Were Drug Users (and Dog Bites Man) – Update for September 18, 2019

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6TH CIRCUIT SAYS KNOWING STATUS IN REHAIF IS ENOUGH

A couple of marijuana aficionados (we’ll call ’em Cheech and Chong), were arrested smoking pot in a car with a couple of guns present. They were convicted of being unlawful drug users in possession of a firearm under 18 USC § 922(g)(3).

cheech190918A little-appreciated portion of § 922(g), the so-call felon-in-possession-of-a-firearm statute, is that it does not just prohibit convicted felons from possessing a gun. It also prohibits a laundry list of other people from possessing one as well: wife-beaters, people who are nuts, people who have been slapped with a civil protection order, illegal aliens, people on the lam, people who were thrown out of the Army, and dope-smokers. Really. Read the statute.

Cheech and Chong appealed, and while that appeal was pending, the Supreme Court handed down Rehaif v. United States, which held that a § 922(g) conviction requires that a defendant knows that he is in a class of people prohibited from possessing firearms, and that he knowingly possesses the gun. Cheech and Chong raised Rehaif in the Court of Appeals, arguing the government had not shown they knew they were unlawful users of a controlled substance, and even if they did, the government had not shown they knew they shouldn’t have the gun.

On plain error review, the 6th Circuit affirmed the conviction. The record was full of Cheech’s and Chong’s Facebook posts bragging about “smoking dope wit da demons” and “getting high and drunk da whole day.” The Court of Appeals said, “The jury heard that the defendants were arrested with marijuana, posted pictures of themselves using marijuana, commented about using marijuana, and posted a video of them smoking marijuana… The defendants dispute this evidence, but not on the ground that they were unaware the substance was marijuana, or unaware they were ‘unlawfully’ using it.”

marijuanahell190918But Cheech and Chong argued that even if they knowingly used marijuana, Rehaif required that the Government prove each defendant ‘knew he was prohibited from possession [of a firearm] because he was an unlawful user of a controlled substance’.” The Court admitted, “it is at least plausible that they were unaware that they were prohibited from possessing firearms under a subsection of 18 U.S.C. § 922(g) due to their regular and repeated drug use,” but held that Rehaif “did not graft onto § 922(g) an ignorance-of-the-law defense by which every defendant could escape conviction if he was unaware of this provision of the United States Code.” The Circuit said Rehaif requires that “the Government must prove . . . that a defendant knew he belonged to the relevant category of persons barred from possessing a firearm.”

United States v. Bowens, 2019 U.S. App. LEXIS 27488 (6th Cir. Sept. 12, 2019)

– Thomas L. Root

He Might Have Known About the Felon-Gun Thing – Update for September 13, 2019

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SOME THINGS PROVE THEMSELVES

resipsa190913There’s a doctrine we all had to learn in first-year law school torts class known as “res ipsa loquitur.” That’s Latin (which the law uses a lot because when things are obscure, you can charge clients more when you have to explain them), and translates as “the thing speaks for itself.”

In last June’s Rehaif v. United States decision, the Supreme Court explained the elements that the government has to prove for a felon-in-possession conviction under 18 USC § 922(g)(1), elements which everyone had been getting wrong for years. Samir Benamor was on direct appeal of his felon-in-possession conviction when he raised the Rehaif argument, maintaining that the government had not proven that he knew he was a felon prohibited from possessing firearms.

Because Sammy had not raised the issue in the trial court, the 9th Circuit ruled he had to show plain error under Federal Rule of Criminal Procedure 52(b). I seriously doubt the Circuit was right about applying Rule 52(b), but it did, and it concluded that Sam was out of luck.

There was no doubt that the district court plainly erred by not instructing the jury that it had to find that Sammy knew he was a felon ineligible to possess a firearm. But the “plain error” standard also requires proof that but for the error, the outcome of the proceeding would have been different. One of Sammy’s priors was for being a felon in possession of a gun. The Court sort of thought that that conviction spoke for itself.

gunb160201The 9th Circuit said, “At a minimum, the prior conviction for being a felon in possession of a firearm proved beyond a reasonable doubt that Defendant had the knowledge required by Rehaif and that any error in not instructing the jury to make such a finding did not affect Defendant’s substantial rights or the fairness, integrity, or public reputation of the trial.”

Yeah, you’d think that having been convicted of being a felon in possession of a gun once before would have alerted Sammy that he was a convicted felon prohibited from having a gun. As the law might say, that “res” probably “ipsa loquiturs.”

United States v. Benamor, 2019 U.S. App. LEXIS 26793 (9th Cir. Sept. 5, 2019)

– Thomas L. Root

SCOTUS Rules 922(g) Requires “Knowledge” – Update for June 24, 2019

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KNOWNOTHING-ISM

In a decision that could be seismic for people convicted of being a felon in possession of a firearm, the Supreme Court last Friday ruled that it’s not enough to know that thing stuck in your pants is a gun. You have to know that you are part of a group the law says should not possess a gun. And, for that matter, you have to know you possess a firearm or ammo.

carriefgun170807Hamid Rehaif was in the country on a student visa that required him to be enrolled in college. He dropped out of school, but stuck around Florida to soak up the sun and fun. When ICE finally caught up to him, agents found him in possession of a half box of ammunition. Hamid had not really picked up on the “right to remain silent” thing, so he readily admitted going to a gun range. He was prosecuted for being illegally in possession of a firearm and ammo.

Under 18 U.S.C. 922(g), it is unlawful for a convicted felon to possess a firearm or ammunition. But that’s only subsection (g)(1). There are eight other subsections as well, categories that include fugitives, people under indictment, people convicted of a misdemeanor crime of domestic violence, people who have been found by courts to be mentally incompetent, illegal aliens, stalkers… there’s a long list.

The government has always gotten away with proving that a defendant had a gun or ammo, and that he or she was a felon or something else on the list. The defendant had to know that that thing he had stuffed in his waistband was a gun. Beyond that, there was no knowledge requirement. A defendant who claimed not to know that he or she was in a prohibited class was just plain out of luck. What the defendant knew or did not know simply was irrelevant. That’s what happened to Hamid. He was fine busting a few caps at the gun range as long as he was in school (and thus compliant with the terms of his student visa). But as soon as he dropped out, his visa automatically expired, and his antics at the gun range became illegal. The district court, and the 11th Circuit, agreed (as did every circuit court in America) that Hamid’s awareness that he should limit his firearms training to Nerf weapons.

rangeThat has now changed. The Supreme Court ruled that in a prosecution under 18 USC 922(g) and 924(a)(2) (they go together), the Government must prove both that the defendant knew he or she possessed a firearm and that the defendant knew he or she knew he belonged to the relevant category of persons barred from possessing a firearm.

Whether a criminal statute requires the government to prove that the defendant acted knowingly, the Court said, is a question of congressional intent. There is a longstanding presumption that Congress intends to require a defendant to possess a culpable mental state regarding “each of the statutory elements that criminalize otherwise innocent conduct.” This is normally characterized as a “presumption in favor of scienter.”

In 922(g) and 924(a)(2), Justice Breyer wrote for the 7-2 decision, the statutory text supports the presumption. It specifies that a defendant commits a crime if he or she “knowingly” violates § 922(g), which makes possession of a firearm unlawful when the following elements are satisfied: (1) a status element; (2) a possession element (to “possess”); (3) a jurisdictional element (“in or affecting commerce”); and (4) a firearm element (a “firearm or ammunition”). Aside from the jurisdictional element, the Court said, § 922(g)’s text “simply lists the elements that make a defendant’s behavior criminal. The term ‘knowingly’ is normally read ‘as applying to all the subsequently listed elements of the crime.’ And the ‘knowingly’ requirement clearly applies to 922(g)’s possession element, which follows the status element in the statutory text. There is no basis for interpreting ‘knowingly’ as applying to the second 922(g) element but not the first.

innocent161024What does this mean for the many felons-in-possession now in the system? It could be Bailey v. United States all over again, as people head back to court on 28 U.S.C. § 2241 petitions (where those are allowed) arguing that under the new statutory interpretation, they are actually innocent.

Justice Alito wrote a detailed and blistering dissent. He warned that the decision’s

practical effects will be far reaching and cannot be ignored. Tens of thousands of prisoners are currently serving sentences for violating 18 U.S.C. § 922(g). It is true that many pleaded guilty, and for most direct review is over. Nevertheless, every one of those prisoners will be able to seek relief by one route or another. Those for whom direct review has not ended will likely be entitled to a new trial. Others may move to have their convictions vacated under 28 U.S.C. § 2255, and those within the statute of limitations will be entitled to relief if they can show that they are actually innocent of violating § 922(g), which will be the case if they did not know that they fell into one of the categories of persons to whom the offense applies… This will create a substantial burden on lower courts, who are once again left to clean up the mess the Court leaves in its wake as it moves on to the next statute in need of ‘fixing’.

Watch that space. This could be very interesting.

Rehaif v. United States, Case No. 17-9560 (Supreme Court, June 21, 2019)

– Thomas L. Root

Supreme Court Rules “Remaining-in” Burglary is Generic Burglary – Update for June 11, 2019

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SUPREME COURT HOLDS THAT ‘REMAINING IN” BURGLARY IS GENERIC BURGLARY UNDER ACCA

Jamar Quarles was convicted of being a felon in possession of a gun under 18 USC § 922(g)(1). Because he had three prior convictions for crimes of violence, he was sentenced to a mandatory minimum sentence of 15 years under 18 USC § 924(e), the Armed Career Criminal Act.

burglar160103In order to be a crime of violence, you may recall, 18 USC 924(e) requires that the conviction either be (1) for burglary, arson, use of explosives or extortion (the “enumerated crimes” clause); or (2) a crime involving an actual or threatened use of physical force against another person (the “elements” clause).

Jamar appealed his ACCA conviction, arguing that one of the prior offenses, Michigan third-degree home invasion, was not generic burglary, because its terms were broader than mere generic burglary. Thus, he maintained, the home invasion did not fit the definition of “crime of violence” under the enumerated crimes clause.

Some 29 years ago, the Supreme Court in Taylor v. United States defined generic burglary under §924(e) to mean “unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.” The Michigan third-degree home invasion statute applied when a person “breaks and enters a dwelling or enters a dwelling without permission and, at any time while he or she is entering, present in, or exiting the dwelling, commits a misdemeanor.”

Jamar argued that this provision was too broad, because it encompassed situations where the defendant forms the intent to commit a crime at any time while unlawfully remaining in a dwelling. He contended that generic remaining-in burglary under the ACCA occurs only when the defendant has the intent to commit a crime at the exact moment when he or she first unlawfully remains in a building or structure.

The District Court rejected that argument, and the Sixth Circuit affirmed. Yesterday, the Supreme Court agreed with the lower courts.

remaining190611The Supreme Court said that “remaining in” refers only to the burglary being a continuous event, that begins when one enters the building unlawfully and does not end until he or she exits. The common understanding of “remaining in” as a continuous event, the Court said, “means that burglary occurs for purposes of §924(e) if the defendant forms the intent to commit a crime at any time during the continuous event of unlawfully remaining in a building or structure.” To put it in conventional criminal law terms, the Court explained, “because the actus reus [the act of burglary] is a continuous event, the mens rea [intent to commit a crime while there] matches the actus reus so long as the burglar forms the intent to commit a crime at any time while unlawfully present in the building or structure.”

The Court made it clear what concerns partly drove the train. It observed that “the important point is that all of the state appellate courts that had definitively addressed this issue as of 1986 [the year the ACCA was adopted] had interpreted remaining-in burglary to occur when the defendant forms the intent to commit a crime at any time while unlawfully present in the building or structure… To interpret remaining-in burglary narrowly… would thwart the stated goals of the Armed Career Criminal Act. After all, most burglaries involve unlawful entry, not unlawful remaining in. Yet if we were to narrowly interpret the remaining-in category of generic burglary so as to require that the defendant have the intent to commit a crime at the exact moment he or she first unlawfully remains… many States’ burglary statutes would presumably be eliminated as predicate offenses under §924(e). That result not only would defy common sense, but also would defeat Congress’ stated objective of imposing enhanced punishment on armed career criminals who have three prior convictions for burglary or other violent felonies.”

Quarles v United States, Case No. 17-778 (Supreme Court, June 10, 2019)

– Thomas L. Root

Sentencing Commission Cannot Add to Drug Offense Definition, 6th Circuit Says – Update for June 10, 2019

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

NEITHER FISH NOR FOWL

fishfowl170803Everyone who paid attention in high school government class knows there are three branches of the federal government, the legislative (Congress), the executive (President and the agencies), and the judicial.

And then there’s the United States Sentencing Commission. It is part of the judicial branch, but it is part legislative, too, answering to Congress (which has the right to pass on any amendments, and veto those of which it disapproves). Legal scholars might say it’s neither fish nor fowl.

In 2017, Jim Harvey pled guilty to felon-in-possession of a firearm. Under the Sentencing Guidelines, a defendant convicted of a 18 USC 922(g)(1) offense starts with a base offense level of 14, but that level increases to 20 under USSG § 2K2.1(a)(4) or (6) if he or she has a prior conviction for a “controlled substance offense.” At sentencing, the district court decided that Jim’s 17-year-old Tennessee conviction for selling or delivering cocaine was a “controlled substance offense” under the Guidelines.

Jim objected because the Tennessee statute criminalized both sale and delivery of cocaine. Under state law, “delivery” of drugs includes the “attempted transfer from one person to another of a controlled substance.” Jim argued that the prior conviction was not a controlled substance offense because the Guidelines’ definition of “controlled substance offense” does not include “attempt” crimes.

Jim was right that the Guidelines themselves do not include “attempt” offenses. However, each of the Guidelines comes with its own handy commentary and application notes, helpful annotations by the Sentencing Commission to aid users in what it considers the “proper” way to apply each Guideline. The commentary at the end of USSG § 4B1.2(b), which (among other things) defines a controlled substance offense for Guidelines purposes, directs that the definition of controlled substance offense in the text necessarily includes ‘the offenses of aiding and abetting, conspiring, and attempting to commit such offenses.’

robbank190610Not so, Jim argued. The Guidelines text itself says nothing about attempt, and the Sentencing Commission, he complained, has no power to add attempt crimes to the list of offenses in § 4B1.2(b) through its own commentary. It would be like West Publishing adding a note after the bank robbery statute saying that bank robbery includes the offense of shaking a few quarters out of your kid’s piggy bank for bus fare.

Last Thursday, the 6th Circuit agreed with Jim.

The Guidelines commentary, the Court said, “never passes through the gauntlets of congressional review or notice and comment. That is generally not a problem, the Supreme Court tells us, because such commentary has no independent legal force — it serves only to interpret the Guidelines’ text, not to replace or modify it. Courts need not accept an interpretation that is “plainly erroneous or inconsistent with” the corresponding guideline.

bootstrappingBut the problem comes where the commentary does more than just interpret, but instead tries to bootstrap the Guideline into saying something more than what Congress approved. In this case, the commentary in question does not “interpret,” but rather supplements. The Commission was perfectly capable of adding “attempt” to the Guideline itself. Clearly, the 6th Circuit noted, the “Commission knows how to include attempt crimes when it wants to — in subsection (a) of the same guideline, for example, the Commission defines “crime of violence” as including offenses that have “as an element the use, attempted use, or threatened use of physical force against the person of another.”

To make attempt crimes a part of 4B1.2(b), the Commission did not interpret a term in the guideline itself, but instead used Application Note 1 to add an offense not listed in the Guideline. Application notes, the Court held, are to be “interpretations of, not additions to, the Guidelines themselves.” If that were not so, the institutional constraints that make the Guidelines constitutional in the first place — congressional review and notice and comment — would lose their meaning.

Jim’s case was remanded for resentencing.

United States v. Havis, 2019 U.S. App. LEXIS 17042 (6th Cir. June 6, 2019)

– Thomas L. Root