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Felon-in-Possession Constitutionality Decision May Be Within ‘Range’ – Update for June 28, 2024

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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.

GOVERNMENT WANTS DEFINITIVE 2ND AMENDMENT FELON-IN-POSSESSION RULING NOW

gunknot181009The pundits sprouted like mushrooms after a rain shower this past week, making all manner of interpretations and predictions on the future of the 2nd Amendment in the wake of the Supreme Court’s United States v. Rahimi decision.

“The Court has endorsed taking guns from convicted felons, a category that now includes Donald Trump,” wrongly declared the New Yorker.

“One of the first things that’s going to happen is that the Supreme Court is going to take up a bunch of lower-court decisions on the 2nd Amendment, vacate them, send them back down for reconsideration in light of Rahimi. So we’re about to get a spate of second bites at the apple from the lower courts trying to apply this,” predicted Slate.

“The majority repeated Heller’s statement that “prohibitions… on the possession of firearms by ‘felons and the mentally ill’ are ‘presumptively lawful’… This suggests that the Court remains generally open to those restrictions… I expect that the Court will send Range back to the 3rd Circuit for further consideration in light of Rahimi; we’ll see what the 3rd Circuit judges say on remand,” UCLA law prof Eugene Volokh wrote in Reason.

Ohio State University law professor Doug Berman asked whether, in Rahimi’s wake, Donald Trump (a convicted felon subject to 18 USC 922(g)(1)) or Hunter Biden (a drug abuser when he bought his gun subject to 18 USC 922(g)(3)) can constitutionally be barred from firearm possession:

I do not believe Donald Trump or Hunter Biden “poses a clear threat of physical violence to another,” and § 922(g)(1) notably serves to permanently disarm anyone with a felony conviction. Further, the federal government has, since Bruen, generally argued for the constitutionality of 922(g)(1) based on the notion that only “responsible” individuals have 2nd Amendment rights. The Rahimi court directly and expressly rejected that notion. But still, as we saw before in 2nd Amendment cases like Heller and McDonald, the Court in Rahimi seems to still embrace dicta that can be read to suggest that the very broad criminal prohibition set forth in 18 USC § 922(g)(1) is still constitutional.

William & Mary law professor Kami Chavis wrote, “Although the court upheld Section 922(g)(8)… barriers to other attempts to implement modern gun regulations likely remain.”

iloveguns221018After the pundits all pontificated, the Solicitor General checked in last Monday, filing a surprising supplemental brief in Garland v. Range that asked the Court to quickly grant cert in a “range” of felon-in-possession cases to clarify who it can disarm under § 922(g)(1) consistent with the 2nd Amendment.

Specifically, SG Elizabeth Prelogar has asked SCOTUS to review some or all five separate pending cases dealing with the federal gun ban for felonies of varying severity. She argued that “we believe [the Court] should grant plenary review to resolve Section 922(g)(1)‘s constitutionality… Although this Court’s decision in Rahimi corrects some of the methodological errors made by courts that have held Section 922(g)(1) invalid, it is unlikely to fully resolve the existing conflict.”

The government argues that the conflict is important. Out of about 64,000 criminal cases reported to the Sentencing Commission in Fiscal Year 2022, more than 7,600 were § 922(g)(1) cases, 12% of all federal criminal cases.

It seems that just about everyone expected a spate of GVR orders on pending petitions for cert. (A GVR is a single-sentence order in which the Supreme Court grants certiorari, vacates the appellate court decision, and remands the case for further consideration in light of a new SCOTUS decision, in this case, Rahimi).

The government’s supplemental brief argues that “a GVR order is inappropriate if the delay and further cost entailed in a remand are not justified by the potential benefits of further consideration by the lower court. In our view, that is the case here. Section 922(g)(1)’s constitutionality has divided courts of appeals and district courts. Although this Court’s decision in Rahimi corrects some of the methodological errors made by courts that have held Section 922(g)(1) invalid, it is unlikely to fully resolve the existing conflict. And given the frequency with which the government brings criminal cases under Section 922(g)(1), the substantial costs of prolonging uncertainty about the statute’s constitutionality outweigh any benefits of further percolation. Under these circumstances, the better course would be to grant plenary review now.”

gun160711The government recommends that SCOTUS grant cert on multiple cases to be heard in one ultimate felon-in-possession case, including Doss v. United States (whether applying felon-in-possession is constitutional where the petitioner has “a lengthy criminal record” that “includes over 20 convictions, many of them violent”) and Jackson v. United States (petitioner has “previous felony convictions for non-violent drug crimes”). The government also asked that the Court add to the mix either Range v. Attorney General (3rd Circuit held 922(g)(1) was unconstitutional as applied to a man convicted of food-stamp fraud from 25 years before) or Vincent v. United States (10th Circuit held 922(g)(1) was constitutional as applied to addicted woman convicted of bank fraud 15 years before but now drug-free and running large charity).

As for Range and Vincent, the Government argues that “[g]ranting review in one of those cases would enable this Court to consider Section 922(g)(1)’s application to non-drug, non-violent crimes.”

A statement in the supplemental brief suggests the Government may have concluded that Rahimi means that it cannot win arguing that 922(g)(1) is constitutional in all circumstances. SG Preloger says that granting “review in cases involving different types of predicate felonies” would “enable the Court to consider Section 922(g)(1)’s constitutionality across a range of circumstances that are fully representative of the statute’s applications.”

guns170111If the government were convinced that it can defend 922(g)(1) in all circumstances, it would be happy with certiorari in either Range or Vincent, because winning on either of those cases would establish that 922(g)(1) is constitutional and thus immune to an “as applied” challenge. The fact that the government suggests that the Court hear swath of cases with defendants ranging from saint to sinner implies that the SG has conceded that the “as applied” constitutional line is going to fall somewhere in between Mr. Doss and Ms. Vincent.

Such a conclusion is almost foreordained by the Rahimi court’s warning that its Rahimi ruling is narrow:

Our resolution of Mr. Rahimi’s facial challenge to § 922(g)(8) necessarily leaves open the question whether the statute might be unconstitutional as applied in particular circumstances… We do not decide today whether the government may disarm a person without a judicial finding that he poses a “credible threat” to another’s physical safety… We do not resolve whether the government may disarm an individual permanently… We do not determine whether § 922(g)(8) may be constitutionally enforced against a person who uses a firearm in self-defense… Nor do we purport to approve in advance other laws denying firearms on a categorical basis to any group of persons a legislature happens to deem, as the government puts it, “not ‘responsible.’”

The Court will accept the SG’s invitation, if at all, early next week (although the Solicitor General has substantial influence with the Court). If the Supremes do take the cases, it will move up by at least a year the time we’ll have a definitive ruling on the constitutional limits of the felon-in-possession statute.

United States v. Rahimi, Case No 22-915, 2024 U.S. LEXIS 2714 (June 21, 2024)

United States v. Doss, Case No. 22-3662, 2023 U.S. App. LEXIS 31748 (8th Cir. Dec. 1, 2023)

United States v. Jackson, 69 F.4th 495 (8th Cir. 2023)

Vincent v. Garland, 80 F.4th 1197 (10th Cir. 2023)

Range v. Attorney General, 69 F.4th 96 (3d Cir. 2023)

Supplemental Brief, Garland v. Range, Case No. 23-374

New York State Rifle & Pistol Association v. Bruen, 597 U.S. 1 (2022)

New Yorker, The Supreme Court Steps Back From the Brink on Guns (June 22, 2024)

Slate, John Roberts Tried to Clean Up Clarence Thomas’ Mess. He May Have Invited More Chaos (June 24, 2024)

Reason, Some Takeaways from Today’s Rahimi 2nd Amendment Opinions (June 21, 2024)

Sentencing Law and Policy, After Rahimi, can Donald Trump legally possess a gun? How about Hunter Biden? (June 24, 2024)

Bloomberg Law, Narrow Gun Opinion Says Law Not in ‘Amber,’ But History Rules (June 25, 2024)

The Reload, DOJ Asks Supreme Court to Resolve Question of Gun Rights for Felons (June 25, 2024)

– Thomas L. Root

Hallelujah! It’s Blog Post No. 1600 – Update for June 13, 2024

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1600240613For those of you keeping score—and I’m probably the only one—today’s installment is the 1,600th since I began posting news and comment on federal criminal justice issues back in 2015.

It’s probably not significant. If we had a Base 16 number system, it would only be Post 640. But the subject of this blog doesn’t often give us a reason to celebrate, so we had better take our wins where we find them.

SOMETHING IN THE AIR

thunderclap240613If you remember Thunderclap Newman’s single hit “Something in the Air” (1969)—like I do—you’re getting too old. The band was singing about the revolution, which, of course, never arrived, but a lot of us are thinking that something may be in the air about the constitutionality of the felon-in-possession statute before the month of June comes to a close.

United States v. Rahimi, the decision everyone’s waiting for, doesn’t deal with felon-in-possession at all, but rather subsection 8 of 18 USC § 922(g). That subsection prohibits someone subject to a court-imposed domestic protection order from possessing a gun or ammo. But in the wake of New York State Rifle & Pistol Association v. Bruen, a 2022 SCOTUS decision, it is likely that § 922(g)–which bans a whole list of people from felons to drug users to illegal aliens to people with DPOs from having guns–violates the 2nd Amendment.

That would be good news for Hunter Biden.

nickdanger220426It might be good news for a lot of people. The belief is that the Court will modify Bruen to add some “dangerousness” exception so that people who are proven to be dangerous with a gun can be prohibited. Such a decision would suggest that convicted felons who don’t have a history of dangerousness would not be subject to § 922(g)(1).

Some statutes are unconstitutional on their face, such as one, for example, that made insulting the President a felony. But others are only unconstitutional when applied to certain situations. The § 922(g)(1) felon-in-possession was unconstitutional when applied to Bryan Range, who had a single pretty minor food stamp felony that was 25 years old. The same statute might not be unconstitutional if applied to the Unabomber.

Zavien Canada was convicted of a § 922(g)(1) felon-in-possession, On appeal, he argued that his “felon-in-possession” offense should be thrown out because § 922(g)(1) is facially unconstitutional. Last week, the 4th Circuit cautiously rejected the argument, noting that there is something in the air.

“The law of the Second Amendment is in flux,” the 4th held, “and courts (including this one) are grappling with many difficult questions in the wake of Bruen. But the facial constitutionality of Section 922(g)(1) is not one of them. Indeed, no federal appellate court has held that Section 922(g)(1) is facially unconstitutional, and we will not be the first.”

gun160711The Circuit went on to suggest that if Zavien had raised an “as applied” challenge—that the felon-in-possession statute is unconstitutional as applied to his situation—the outcome might have been different: “Our decision is narrow. Because Canada has expressly disclaimed any sort of as-applied challenge, we “may” simply “assume for the sake of argument that there is some room for as-applied challenges” to Section 922(g)(1)…”

Rahimi will not settle the felon-in-possession debate, however the decision goes. However, it is likely to be a nail in the coffin (and a fairly large nail at that) for the constitutionality of the felon-in-possession statute.

United States v. Canada, Case No. 22-4519, 2024 USApp LEXIS 13271 (4th Cir. June 3, 2024)

New York State Rifle & Pistol Assn, Inc v. Bruen, 597 US 1 (2022).

– Thomas L. Root

Supreme Court Teeing Up Some Significant Criminal Law Decisions – Update for January 15, 2024

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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.

SUPREMES’ JANUARY LOOKING CONSEQUENTIAL FOR CRIM LAW HOLDINGS

alicewordsmeanhumpty231122The first argument of the current Supreme Court term last October, Pulsifer v. United States, ought to be yielding an opinion in the next few weeks. The First Step Act “safety valve” case – that considers whether “and” means “and” or simply “or” – has increased importance for a lot of people who might otherwise qualify for the zero-point sentence reduction under the new USSG § 4C1.1.

A condition of § 4C1.1 is that “the defendant did not receive an adjustment under § 3B1.1 (Aggravating Role) and was not engaged in a continuing criminal enterprise…” So does that mean the defendant is qualified unless he has a § 3B1.1 adjustment AND a CCE conviction? Or is he disqualified if he has a § 3B1.1 OR a CCE violation? There are a lot of § 3B1.1 enhancements out there, but not nearly as many CCE convictions.

Even without the § 4C1.1 angle, Ohio State University law professor Doug Berman said last week in his Sentencing Law and Policy blog that Pulsifer may “prove to be the most interesting and impactful sentencing case from the current SCOTUS Term.”

Meanwhile, other interesting Supreme Court developments are happening largely unseen. Last November, the Court granted review in Erlinger v. United States, a case which asks whether the Constitution requires that a jury (instead of the judge) find beyond a reasonable doubt that an Armed Career Criminal Act defendant’s three predicate offenses were “committed on occasions different from one another.”

May you rest in peace, Betty... stealing America's hearts did not make you ACCA-qualified.
May you rest in peace, Betty… stealing America’s hearts did not make you ACCA-qualified.

(The ACCA, for those who got here late, is a sentencing enhancement contained in 18 USC § 924(e)(2) which provides that the punishment for a felon-in-possession conviction under 18 USC § 922(g) begins with a mandatory 15 years and goes to life imprisonment if the defendant has three prior convictions for serious drug offenses or crimes of violence committed on occasions different from one another. Erlinger explores the collision of those elements with the 6th Amendment: can a judge find the ACCA applies to a felon-in-possession by a simple preponderance of the evidence, or must those elements be found by a jury beyond a reasonable doubt?)

The curious development in Erlinger is that both the Solicitor General and defendant Erlinger agree that after the Supreme Court adopted the current “standard for determining whether offenses occurred on different occasions [set forth] in Wooden v. United States” in 2022, the issue of whether the predicates were “committed on occasions different from one another” implicates a defendant’s Apprendi v. New Jersey rights to have facts that raise the statutory minimum and maximum must be decided beyond a reasonable doubt by a jury.

When both parties in a Supreme Court case agree on how the case should come out, the Court appoints a lawyer to argue the other side. SCOTUS has appointed one in this case, who will file a brief next month opposing the briefs Erlinger and DOJ have already filed.

Erlinger is important not only for the ACCA issue presented but because some on the Court have argued that where an enhanced penalty (like 21 USC § 851 drug enhancements) requires a showing of a prior conviction, due process requires that the fact of the conviction be decided by a jury. The Supremes ruled the other way in the 1998 Almendarez-Torres v. United States decision, a holding that was unaffected by the subsequent Apprendi ruling. Justice Clarence Thomas especially has criticized Almendarez-Torres, believing it is wrong, and the fact of prior convictions should be a jury question. Erlinger may give a holding that is expansive enough to address the Almendarez-Torres holding.

expert160905Last week, the Court heard argument in Smith v. Arizona, addressing whether a defendant’s 6th Amendment right to confront witnesses means that the lab expert who prepared a report on drug purity must be put on the stand to verify the report. Many courts currently permit another expert who did not conduct the test to testify as to drug purity based on the report’s findings.

The  Court seemed sympathetic to Jason Smith, an Arizona prisoner who contends that the expert’s testimony – based on a drug purity test performed by someone who wasn’t present to testify – contravened the 6th Amendment’s confrontation clause, which gives defendants in criminal cases the right to “be confronted with the witnesses against him.”

Finally, the Court will hear the argument tomorrow in Loper Bright Enterprises v. Raimondo, the case that could end Chevron deference – the notion that courts must defer to agency interpretation of statutes and rules. A change in Chevron deference could affect the Sentencing Guidelines, court deference to agency interpretation of gun laws, and court deference to BOP policies, among other changes.

Sentencing Law and Policy, Top side SCOTUS brief now files in Erlinger v. US, the case considering Apprendi’s application to part of ACCA (January 9, 2024)

Almendarez-Torres v. United States, 523 U.S. 224 (1998)

Erlinger v. United States, Case No. 23-370 (S.Ct., awaiting decision)

Smith v. Arizona, Case No. 22-899 (S.Ct., argued January 10, 2024)

SCOTUSBlog, Court appears to favor Arizona man’s confrontation clause claim (January 10, 2024)

Loper Bright Enterprises v. Raimondo, Case No. 22-451 (S.Ct., awaiting argument)

– Thomas L. Root

Straight Shooting on Felon-In-Possession – Update for January 9, 2024

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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.

HOW ABOUT THOSE “NEW LAWS” ON FELON-IN-POSSESSION?

I had yet another email last week – and there have been a lot of them – asking for information about any “new laws” on 18 USC § 922(g)(1) felon-in-possession.

We need to get some things straight.

dunce240109Remember those high school government classes you skipped? The teacher explained that a new “law” has to be passed by Congress and signed by the president, in this case by the notoriously anti-gun President Biden. When will that happen?

We are now into an election year in which Americans will elect one new president, 435 new members of the House and 33 new senators. Democrat voters, by and large, don’t like guns and hate the 2nd Amendment. Republican voters, by and large, love the 2nd Amendment but don’t think convicted felons should be allowed to do or have anything. Most people (77% of Americans and 92% of Republicans) think the crime rate is rising when, in fact, violent crime dropped 8% last year over 2022, the murder rate has plummeted, and the property crime rate fell 6.3% to what would be its lowest level since 1961.

Less than two years ago, Congress passed the Bipartisan Safer Communities Act as a response to mass shootings at a Buffalo supermarket and a Uvalde, Texas, school. The bill – passed the House 55-45% but was approved in the Senate by a 2-1 margin – tightened background checks, toughened straw-purchaser laws, and increased the maximum for a simple, non-Armed Career Criminal Act felon-in-possession from 10 to 15 years.

So you tell me: who in Congress would vote to walk back felon-in-possession laws so soon after toughening them? Who in Congress would want to face attacks during a reelection campaign that he or she made it easier for criminals to get guns?

If you answered “no one,” you’re pretty close.

Federal law prohibiting anyone with a felony conviction from ever possessing a gun or ammo has only been around since 1961. But among politicians, it is untouchable. Every change to 18 USC § 922(g) in the last 63 years has only increased the classes of people prohibited from having guns or increased the penalties for violating the statute.

gun160711There is action on felon-in-possession, but it’s taking place across the street from the Senate and House chambers at the Supreme Court. Back in June 2022, the Supreme Court ruled in New York State Rifle & Pistol Assn v. Bruen that when the 2nd Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. Only if a statute limiting firearm possession is consistent with “this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the 2nd Amendment’s ‘unqualified command’.”

Bruen has led to a cascade of 2nd Amendment attacks on 18 USC § 922(g). Most notably, the 3rd Circuit ruled in Range v. Attorney General, an en banc decision last June, that § 922(g)(1) felon-in-possession is unconstitutional as it applies to people convicted of nonviolent felonies. Range came only a week after the 8th Circuit ruled in United States v. Jackson that the § 922(g)(1) felon-in-possession ban remained a lawful limitation on gun possession even after Bruen.

whataburger230703Meanwhile, the government convinced the Supreme Court to take up United States v. Rahimi, a case in which the 5th Circuit ruled that § 922(g)(8) – which prohibits someone subject to a domestic protection order from possessing a gun – was unconstitutional. Oral arguments in Rahimi last fall did not go all that well for the defendant, chiefly because  Zackey Rahimi is a bad actor who threatened to kill his girlfriend, opened fire on a motorist in a road rage incident, and tried to shoot up a What-a-Burger because his friend’s credit card was declined.

Meanwhile, the Range petition for cert, also filed by the government, appears to be on hold pending the Rahimi decision.

Now add to that a petition filed on December 21 by Melynda Vincent, who passed a $492.00 counterfeit check while battling a drug addiction 15 years ago. Melynda sued the government in 2020 for the right to own a gun. The 10th Circuit ruled last fall that Bruen did not change the fact that felon-in-possession was constitutional. The government plans to oppose Melynda’s petition, but the issue – whether a sympathetic nonviolent offender whose crime was committed years ago can constitutionally be denied the right to possess a gun – is much like Bryan Range’s case.

vincent240109Melynda is as ideal a petitioner as Zack Rahimi is a poster child for gun control. Her federal judge gave her probation 15 years ago and challenged her to turn her life around. Melynda did that and more. She earned a bachelor’s degree in behavioral science followed by a master’s degree in social work and a second master’s degree in public administration. She is the founder and executive director of the Utah Harm Reduction Coalition, a nonprofit that works to develop science-driven drug and criminal justice reform policies. She also started the first legal syringe exchange service in the state.

It seems probable that the Supreme Court will try to limit Bruen where public safety is concerned. This makes it likely that the court may limit § 922(g)’s limitations to cases where the defendant’s dangerousness is at issue, which would benefit the Bryan Ranges and Melynda Vincents of the country, as well as any number of federal defendants whose § 922(g)(1) convictions have nothing to do with their perceived risk to public safety.

Vincent v. Garland, 80 F.4th 1197 (10th Cir, 2023)

Vincent v. Garland, Case No. 23-683 (petition for cert filed Dec 21, 2023)

Range v. Attorney General, 69 F.4th 96 (3d Cir. 2023) (en banc)

Garland v. Range, Case No. 23-374 (dist for conference November 17, 2023)

NBC, Most people think the U.S. crime rate is rising. They’re wrong. (December 16, 2023)

Deseret News, She lost her gun rights for passing a bad check. Now she wants the Supreme Court to restore them (December 29, 2023)

– Thomas L. Root

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

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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.

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

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

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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.

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

Courts Chipping Away at Gun Statute in Wake of Bruen – Update for October 18, 2022

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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.

ANOTHER WEEK, ANOTHER ATTACK ON 18 USC § 922

iloveguns221018I reported a few weeks ago on a Western District of Texas ruling holding that the ban on people under indictment having guns or ammo (18 USC § 922(n)) was unconstitutional in the wake of last June’s Supreme Court decision in New York State Rifle & Pistol Ass’n v Bruen. Last week, a Southern District of West Virginia district court joined the fracas, holding that 18 USC 922(k) – which prohibits possession of guns with obliterated serial numbers – “implicate conduct that is protected by the Second Amendment… [making] the statute is presumptively unconstitutional” under Bruen.

The West Virginia defendant was caught with a gun that had serial numbers filed off. He was charged with being a felon-in-possession under 18 USC § 922(g)(1) and with violating § 922(k). The district court held that the felon-in-possession statute was constitutional, but that § 922(k) was not. The government could not show that the obliterated serial number statute was “consistent with the Nation’s historical tradition of firearm regulation.”

gunserialfiled221018Firearms were not required to carry serial numbers until the Gun Control Act of 1968. The “societal problem[s]” addressed by § 922(k) appear to be crime, the Court wrote, “including crime involving stolen firearms, and assisting law enforcement in solving crime. It is difficult to imagine that this societal problem did not exist at the founding. While firearms then were not the same as firearms today, there certainly were gun crimes that might have been more easily investigated if firearms had to be identifiable by a serial number or other mark. The Government has presented no evidence, and the court is not aware of any, that any such requirement existed in 1791.”manyguns190423

Ohio State University law professor Doug Berman, writing in his Sentencing Law and Policy blog, said that “the rejection of Bruen-based attacks on felon-in-possession prohibition is already become quite common. As the Price opinion notes “Relying on the same [‘law-abiding’] dicta in the wake of Bruen, at least nine federal district courts have rejected constitutional challenges to Section 922(g)(1)… [But] based on my first quick read of this opinion, I am not sure I am wholly convinced by the analysis driving either part of the ruling.”

United States v. Price, Case No 2:22-cr-00097, 2022 U.S.Dist. LEXIS 186571 (S.D.W.Va., Oct. 12, 2022)

Sentencing Law and Policy, Notable new district court opinion strikes down federal serial number law but upholds felon possession ban applying Bruen (October 13, 2022)

– Thomas L. Root

District Court Decision Questions Everything in 18 USC § 922 – Update for September 26, 2022

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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.

BEGINNING OF THE END FOR 18 USC 922?

Notguns170330A remarkable district court decision from Western District of Texas last week held that 18 USC § 922(n), a subsection that prohibits people who are under indictment  from possessing guns or ammunition that have traveled in interstate commerce, is unconstitutional.

District Judge David Counts dismissed an 18 USC § 922(n) charge against Jose Quiroz, who was facing a Texas burglary indictment when he tried to buy a .22-caliber version of the Colt Model 1911 handgun.

In a 25-page opinion filed in Pecos, Texas, Counts ruled that in the wake of the Supreme Court’s June decision in New York State Rifle & Pistol Ass’n, Inc. v. Bruen, despite “valid public policy and safety concerns,” the statute had to be considered under a historical analysis alone. He held that “[a]lthough not exhaustive, the Court’s historical survey finds little evidence that § 922(n) — which prohibits those under felony indictment from obtaining a firearm — aligns with this Nation’s historical tradition. As a result, this Court holds that § 922(n) is unconstitutional.”

gun160711The Court said that the “Second Amendment is not a ‘second class right.’ No longer can courts balance away a constitutional right. After Bruen, the Government must prove that laws regulating conduct covered by the Second Amendment’s plain text align with this Nation’s historical tradition.”

What makes the decision interesting is not just the detailed historical analysis that argues against the constitutionality of § 992(n). In addition, the decision casts substantial doubt on whether 18 USC § 922(g) – which prohibits people convicted of felonies from possessing guns or ammo – is still constitutional in light of Bruen.

Bruen held that “when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. To justify its regulation, the government… must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms….”

manyguns190423Judge Counts reviewed the history of laws prohibiting felons from possessing guns: “By the mid-1920s, only six states had laws banning concealed carry by someone convicted of a crime involving a concealed weapon. And zero states banned possession of long guns based on a prior conviction… Whether this Nation has a history of disarming felons is arguably unclear—it certainly isn’t clearly “longstanding.” And what’s even more unclear—and still unproven—is a historical justification for disarming those indicted, but not yet convicted, of any crime.”

The Quiroz opinion is only a district court holding and is not binding precedent on other courts (even in its home 5th Circuit). However, the decision is written with detail that is extraordinary for a district court case and may have a lot of persuasive authority for other district courts (and even courts of appeal). The case also suggests that Bruen, only three months old, could have a major effect on 18 USC § 922.

Even before Bruen, Supreme Court Justice Amy Barrett – when she was still on the 7th Circuit – argued in her dissent in Kanter v. Barr that the felon-in-possession statute could not constitutionally applied to people with nonviolent felony convictions:

History is consistent with common sense: it demonstrates that legislatures have the power to prohibit dangerous people from possessing guns. But that power extends only to people who are dangerous. Founding-era legislatures did not strip felons of the right to bear arms simply because of their status as felons… In 1791 — and for well more than a century afterward — legislatures disqualified categories of people from the right to bear arms only when they judged that doing so was necessary to protect the public safety.

Anyone filing direct appeals or post-conviction motions in cases where they were convicted of 18 USC § 922 offenses should seriously consider raising a constitutionality issue in light of Bruen.

United States v. Quiroz, Case No 22-cr-00104, 2022 U.S. Dist. LEXIS 168329 (W.D.Tex., September 19, 2022)

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

Associated Press, Judge holds gun ban for felony defendants unconstitutional (September 19, 2022)

Sentencing Law and Policy, District Court declares § 922(n), which criminalizes a person under indictment from receiving a firearm, to be unconstitutional (September 20, 2022)

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

– Thomas L. Root

A Moment in Time: Wooden Redefines ‘Occasions’ – Update for March 17, 2022

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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.

THE OCCASIONAL CRIME

As I reported last week, on March 7, the Supreme Court unanimously reversed a sentence in the case of Dale Wooden, a man who had received an Armed Career Criminal Act-enhanced 15-year sentence for having committed ten prior burglaries. He had broken into a self-storage building and burgled ten separate units all in one hour’s work.

May you rest in peace, Betty... stealing America's hearts did not make you ACCA-qualified.
May you rest in peace, Betty… stealing America’s hearts did not make you ACCA-qualified.

The ACCA is a penalty statute. If someone possesses a firearm or ammunition while being prohibited from doing so – 18 USC § 922(g) includes prior felony convictions, being a fugitive, using controlled substances, even having a dishonorable discharge, and a host of other prohibitions – the penalty is up to ten years in prison. But if the defendant has been convicted of three violent felonies or serious drug offenses, and those three offenses were committed on “occasions different from one another,” the penalty jumps to a minimum of 15 years and a maximum of life without parole. Rather harsh…

Dale only had one wild night in a storage facility, when he broke through flimsy drywall walls separating individual storage units and took what he could find. But the state charged him with ten burglaries, which are considered to be violent crimes. Many years later, when a police officer who had stopped by Dale’s house saw a gun in plain sight, Dale was charged as a felon-in-possession. An enterprising U.S. Attorney figured that the ten burglaries had been committed on “occasions different from one another,” because, after all, you can only burgle one storage unit at a time. And that is how Dale became an armed career criminal.

Whether the occasions really were different from one another was the question that made it to the Supreme Court. Interpreting the ACCA’s “on occasions different from one another” language, all nine justices agreed that Dale’s ten burglaries occurred during the same “occasion.” Writing for the court, Justice Kagan first explained that according to its ordinary meaning, an occasion is “essentially an episode or event. If one learned about Wooden’s burglary spree,” Kagan explained, “they would say: ‘On one occasion, Wooden burglarized ten units in a storage facility.’ A person would not say: ‘On ten occasions, Wooden burglarized a unit in the facility.’ Nor would the average person describe Wooden breaking into each separate unit as its own independent occasion. Indeed, one need only turn to the dictionary to confirm this to be true, as the word occasion ‘commonly refers to an event, occurrence, happening, or episode’.”

If the Hamburglar stole them on successive days...
If the Hamburglar stole them on successive days…

Kagan ruled that “by treating each temporally distinct offense as its own occasion,” the government’s interpretation of the word “occasion” essentially collapses “two separate statutory conditions.” Kagan noted that the history of the “occasions” clause supports this interpretation. Congress amended ACCA to include the clause in order to write the Solicitor General’s position in United States v. Petty into law. In Petty, the Solicitor General admitted to the Supreme Court that the ACCA should be triggered only when a person’s prior convictions result from “multiple criminal episodes” even though such a requirement was not founded in ACCA’s text. Kagan explained that Congress amended ACCA to include the “separate occasions” requirement.

Recognizing that courts may struggle to define “separate occasions,” Kagan suggested standards: If offenses are committed “close in time,” they “will often count as part of one occasion; not so offenses separate by substantial gaps in time or significant intervening events.” She explained that in defining an occasion, “proximity of location is also important; the further away crimes take place, the less likely they are components of the same criminal event.” Finally, Kagan noted that “the character and relationship of the offenses may make a difference: The more similar or intertwined the conduct giving rise to the offenses… the more apt they are to compose one occasion.” She said that “applying this approach” will usually “be straightforward and intuitive.

Justices Gorsuch and Sotomayor were unsure how straightforward Kagan’s approach would be, given that different people may have “different intuitions about the same set of facts.” A multifactor balancing test, he wrote, did not give lower courts adequate guidance. “Imagine a defendant who sells drugs to the same undercover police officer twice at the same street corner one hour apart,” he wrote. “Do the sales take place on the same occasion or different ones?”

burglthree160124Gorsuch added that Kagan’s factors did not conclusively answer the question presented in the Wooden case. “When it comes to location, each storage unit had its own number and space, each burglary infringed on a different person’s property, and Mr. Wooden had to break through a new wall to enter each one,” Justice Gorsuch wrote. “Suppose this case involved not adjacent storage units but adjacent townhomes or adjacent stores in a mall. If Mr. Wooden had torn through the walls separating them, would we really say his crimes occurred at the same location?”

In Gorsuch’s view, the rule of lenity – the principle that courts should resolve statutory ambiguities in favor of criminal defendants – should come into play when courts struggle to decide whether crimes were committed as part of a single “occasion.”

Because Wooden’s decision interprets a statute, inmates in many circuits will be able to retroactively apply the decision to their ACCA convictions under the 28 USC § 2255(e) saving clause. It seems likely that the courts will struggle in applying the standards to the movant’s respective facts. Dale Wooden’s case seemed almost nonsensical. But what about (all too common) the guy who sold cocaine on a street corner for three successive days, and was convicted of three state-court distribution counts? Were those the same occasion? Or robs three banks in a week-long drug-addled frenzy?

The lawyers will be busy…

Wooden v. United States, Case No 20-5279, 2022 U.S. LEXIS 1421 (Mar 7, 2022)

SCOTUSBlog, Perhaps defining an “occasion” is not so difficult after all (March 8, 2022)

New York Times, Supreme Court Says 10 Burglaries Can Count as One Offense (March 7, 2022)

– Thomas L. Root

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

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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.

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