Tag Archives: felon-in-possession

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

4th Holds Defendant Has Right to Know About ACCA Sentence at Guilty Plea – Update for January 21, 2020

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4TH CIRCUIT HOLDS LIKELY ACCA SENTENCE MUST BE MENTIONED AT PLEA HEARING

A week ago last Friday, the 4th Circuit ruled that a defendant in a felon-in-possession-of-a-firearm case (18 USC § 922(g)(1)) must be told of the risk that he or she will receive a mandatory minimum 15-year sentence under the Armed Career Criminal Act (18 USC § 924(e)) at the time the guilty plea is entered.

guilty170417Anyone is entitled to plead guilty, and a lot of people do. In fact, something like 97% of all federal defendants enter guilty pleas. That could be because of the superior law enforcement work done in ensuring that only guilty people ever get indicted. Of course, it could be that the system is rigged so that most of the time, the only rational course for a defendant to pursue is to admit to whatever the government has charged him or her with, in order to save a spouse from indictment, to secure a sentence that offers some chance of release in a reasonable time frame, or just to get out of jail and into a prison setting which is sweeter than county lockup.

Nevertheless, when a defendant enters a guilty plea, he or she gives up a panoply of constitutional rights, such as right to a trial by jury, a right to confront the accusers, the right to present evidence, the right to be found guilty only beyond a reasonable doubt. For that reason, due process and Rule 11 of the Federal Rules of Criminal Procedure require that a guilty plea be entered with the defendant aware of those rights, aware of the contents of any written plea agreement, and aware of the maximum penalty he or she faces.

changeofplea170616Jesmene Lockhart pled guilty without a plea agreement to a single § 922(g)(1) count. During a Rule 11 change-of-plea hearing (which is a lengthy formal proceeding at which the defendant changes the “not guilty” plea into a “guilty” plea), the magistrate judge asked the government to “summarize the charge and the penalty.” The government said the “maximum penalty” Jesmene faced was 10 years.

This was technically correct: at that time, everyone was reading the sentencing statute, 18 USC § 924(a)(2), which specified a maximum sentence of 10 years. No one was considering whether Jesmene had prior convictions that might result in his getting a 15-year mandatory minimum ACCA sentence under § 924(e).

But as the parties prepared for sentencing, the presentence report writer uncovered Jesmene’s prior convictions, and noticed the parties that he was eligible for the ACCA 14-year mandatory minimum sentence. Jesmene fought the ACCA designation, arguing that the convictions were too remote (he had been 16 years old), too close in time to one another, and statutorily exempt. Nothing worked.

What Jesmene did not try to do was to withdraw his guilty plea on the grounds it was not knowing and voluntary, because has was not told he could get an ACCA sentence. On appeal, even under the tougher “plain error” standard (because his trial court lawyer had not raised the issue), Jesmene claimed his guilty plea was involuntary because he had not been told about the possible ACCA sentence. He contended the benefit he gained from pleading guilty – a reduction from the bottom of his ACCA guideline range of 188 months to 180 months – was “so small as to be virtually non-existent.” Had he known about the risk of an ACCA sentence and how little a plea deal would help him, Jesmene contended, he would have had strong incentive to go to trial to try to avoid the 15-year ACCA sentence altogether.

plea161116In a January 10 en banc opinion, the 4th Circuit held that Jesmene had met the plain error standard: the failure to inform him of the ACCA sentence at the change-of-plea was an error, it was plain, it affected his substantial rights, and “the error seriously affects the fairness, integrity or public reputation of judicial proceedings.” The Circuit cited national statistics that felon-in-possession defendants only go to trial 3% of the time, but ACCA defendants choose trial 13.5% of the time, and noted that the difference in Jesmene’s guidelines as a non-ACCA defendant and under the ACCA was 125 months. Plus, his very old criminal history (three burglaries within a short time span when he was 16 years old) suggested that Jesmene, being unaware of the ACCA risk, would reasonably have expected to be sentenced at the bottom of his 46-57 month advisory guideline range. By contrast, the only benefit he got from pleading guilty to an ACCA was an 8-month break for acceptance of responsibility.

The 4th said, “the magistrate judge’s failure to inform Lockhart of the correct sentencing range was an obvious and significant mistake. Such an error undermines the very purpose of Rule 11 that a defendant be fully informed of the nature of the charges against him and of the consequences of his guilty plea… As a result of this error,  Lockhart had every reason to think after the plea hearing that he would receive a sentence within the stated statutory range of between zero and 120 months’ imprisonment…”

United States v. Lockhart, 2020 U.S. App. LEXIS 822 (4th Cir. Jan 10, 2020)

– Thomas L. Root

Correcting Your Sentence After Courts Admit a Mistake Gets Harder – Update for January 14, 2020

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6TH CIRCUIT REFUSES § 2241 MOTION ON CIRCUIT SENTENCING STATUTE REINTERPRETATIONS

habeasB191211Since the Anti-Terrorism and Effective Death Penalty Act of 1996, post-conviction habeas corpus motions brought under 28 USC § 2255 have pretty much been one-to-a-customer. A prisoner is entitled to file a second § 2255 motion only where the Supreme Court had issued a constitutional ruling made retroactive (such as 2015’s Johnson v. United States) or where prisoners discover new compelling evidence that they are actually innocent of the offense of conviction.

But § 2255 has a “savings” clause in subsection (e), that lets a prisoner file a classic habeas corpus action under 28 USC § 2241 if the  § 2255 remedy is “inadequate or ineffective to test the legality of his detention.” The Supreme Court held in the 1997 Bousley v. United States decision that if there is a change in statutory interpretation (but not a constitutional violation) that makes a prisoner actually innocent of the crime of conviction, the § 2255(e) “savings” clause applies.

magnacarta200116

For those who came in late: Section 2241 of Title 28 of the U.S. Code establishes procedures for petitioning for a writ of habeas corpus. It establishes the rules for exercising that ancient (think Magna Carta) right to petition the courts whenever one is being detained (jailed or imprisoned) unconstitutionally or contrary to law. It may be the most valuable right anyone has anywhere (that’s why they call it “the Great Writ“).

But when the writ of habeas corpus is aimed not at the jailer, but instead at the constitutionality of the federal court proceeding that got you to prison in the first place, Congress wrote a separate statute – 28 USC § 2255 – to govern those proceedings. A third section, 28 USC § 2254, addresses procedures for state prisoners who have exhausted their habeas rights in state court, and have to head off to federal court.

manyguns190423Now, back to the live action… Just about every federal prisoner files his or her one-and-only § 2255 motion. You have a year from the time your conviction is final, so it is very much a use-it-or-lose-it proposition. But what if (as often happens) you discover something new that could get you released, but the discovery comes after the year passes? Take our hypothetical defendant, Smith N. Wesson. Unsurprisingly, Smith was convicted of being a felon in possession of a firearm under 18 USC § 922(g), despite the fact that he did not know that his prior state conviction was a felony as opposed to a misdemeanor. A felony made him ineligible to possess a gun, a misdemeanor did not. Smith’s lack of knowledge that he was breaking the law made no difference: he would have nonetheless have been guilty. Up until last June, it was not necessary that Smith know he was prohibited from possessing a gun. He only had to know that thing he was carrying was a gun rather than, say, a toaster. And if our man Smith knew anything, he knew guns.

But in June 2019, the Supreme Court threw Smith a bone. It held in Rehaif v. United States that a § 922(g) defendant had to know that he or she was in a class of people prohibited from possessing firearms. After Rehaif, Smith would not be guilty of the crime.

Rehaif was not a decision on the constitutionality of 18 USC § 922(g). Instead, it was just an interpretation of what the statute said. What it had always said, the Supremes said, but none of the courts of appeal had ever under understood that.

gunknot181009But Rehaif put Smith in a quandary: although he was as innocent as a lamb, Smith had already used his § 2255 rights several years before, and he thus could not file a second § 2255 unless he met the narrow criteria. And he definitely did not. But he could file a § 2241 petition, because the § 2255(e) savings clause applies.

Most circuits (not the 10th and 11th) hold that even where a later Supreme Court decision affects only a prisoner’s sentence, not just the prisoner’s conviction, he or she may file a § 2241 petition to get relief. The 4th Circuit has gone further: in the 2018 United States v Wheeler decision, the 4th said that prisoners barred from filing a second § 2255 motion may seek habeas relief under 28 USC § 2241 based on new statutory interpretation decisions from circuit courts of appeal, not just the Supreme Court.

All of which brings us to today’s case. Ramon Hueros got a drug distribution sentence under 21 USC § 841(b)(1)(A), the mandatory minimum time for which was doubled from 10 to 20 years because he had been previously convicted of two state drug convictions. After a 9th Circuit and 4th Circuit decision held those prior state convictions were not really felonies at all (which meant Ramon should never have gotten a 240-month minimum federal sentence), he filed for relief. He had previously filed and lost a § 2255 motion, so he filed a § 2241 petition for habeas corpus under the “savings” clause.

limitone170912Last week, the 6th Circuit ruled 2-1 that Ramon was not entitled to use the § 2255(e) savings clause (and thus, file a 2241 motion) based on a new court of appeals decision changing statutory interpretation. “Although the 4th Circuit has blessed an identical request [in the 2018 decision, United States v. Wheeler], we must respectfully decline. Among our reasons: Congress allowed prisoners to file a second § 2255 motion only if the Supreme Court adopts a new rule of constitutional law… We would write this limit out of the statute if we held that new rules from the circuit courts (whether of statutory or constitutional law) could render 2255 inadequate or ineffective and trigger the right to a second round of litigation under 2241.”

The Circuit said a § 2255 remedy is not ineffective unless a prisoner identifies a new Supreme Court decision – not just a circuit court decision – reinterpreting a statute. The AEDPA history, as well as the practical effects of holding otherwise – such as gutting the efficacy of the § 2255(f) time requirements – suggest that circuit court statutory rulings should not fall under the § 2255(e) savings clause.

This may finally be the savings clause decision that makes it to the Supreme Court, where the Court will impose national uniformity on use of the clause to bring 2241 challenges where statutes are reinterpreted to make what was once illegal now legal.

Hueso v. Barnhart, 2020 U.S.App. LEXIS 618 (6th Cir. Jan. 9, 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

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 922(g) Case May Hold Unintended Consequence for Felons with Guns – Update for April 29, 2019

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SLEEPER

An oral argument last Tuesday in Rehaif v. United States took a surprising turn, and could make a Supreme Court decision in the case the “sleeper” of the Court’s 2018-2019 term.

gunknot181009Refresher first: Federal law prohibits a long list of people from possessing guns or ammunition. The statute, 18 U.S.C. § 922(g), bans ownership by people charged with felonies, people convicted of felonies, people who have been certified as crazy, people who beat their spouses, people subject to protection orders, people who do drugs, people who are here illegally, and so on and so on.

The statute (922(g)) is colloquially known as the “felon-in-possession” statute, although its reach is much broader than that. Read the statute to figure out where you fit.

A quirk of the felon-in-possession statute is that it provides no punishment. Rather, punishment is meted out by another statute, 18 U.S.C. § 924(a)(2), which specifies a 10-year sentence for people who “knowingly” violate 922(g).

But “knowingly” what? Do you have to know it is a gun? Or a round of ammo? Do you have to know you are a felon or a drug abuser or here illegally? Do you have to know you are possessing it? Up to now, the statute was interpreted by the courts as requiring only that you know that it’s a firearm or ammunition.

Which brings us to the unluckiest hedonist in America, Hamid Rehaif. Hammy came to the US to attend college. Under immigration law, he retained his student-visa status only as long as he remained enrolled as a full-time student. But when he got here, he discovered that the non-classroom parts of college were more fun, the bars, the tailgating, the frat parties, all of the stuff that has conspired to place less of a workload on college students than on eighth graders.

Naturally, Hammy flunked out. But he had so much fun doing it that he couldn’t give it up. Instead of returning to his mother country with his academic tail between his legs, Hammy stayed in America. In Florida, actually, and who could blame him?

florida190429But events conspired against him. One day he went to a shooting range, rented a Glock .40 cal. pistol (is this a great country or what?), and happily blasted away at targets for an hour or so.  A few weeks later, some solid citizen reported Hamid, because she had seen him skulking around an apartment building (he lived there, but then, he is Middle Eastern, so of course he must be a terrorist). The FBI came by to talk to him, and Hammy – who had been at a party instead of an American government class, and thus did not know about the “right to remain silent” part of the Constitution – mentioned at one point in the interview that he had been shooting a few weeks before.

Like I used to tell my clients, remaining silent is not just a  right – it’s a whopping’ good idea. Hamid was charged as an unlawful alien in possession of a firearm under 18 U.S.C. § 922(g)(5). Of course, he was convicted, despite the fact Hammy argued he did not know he was in the country illegally. The trial court said that did not matter. The only “knowledge” provision of 922(g) that mattered was that he knew he possessed a gun, even just for an hour.

knowledge190429The question of whether “knowingly” meant a defendant had to be aware of his or her status (felon, spouse-beater, drug-abuser, illegal-alien, whatever) in order to violate 922(g). At oral argument last week, the Supreme Court justices quickly saw the slippery slope: if they rule that the government must prove an unauthorized immigrant with a firearm knew he was in the country illegally, that ruling will necessarily mean it will have to prove that a felon with a firearm knows he or she is a felon.

If Hamid’s conviction is reversed, the practical consequences could be huge. Only Justice Alito seemed to accept the current view that a defendant need not know his or her status to violate the statute.

Justice Ginsburg wondered what would happen if the Court ruled that status under 922(g) requires knowledge: “How many people who have been convicted under felon-in-possession charges could now say, well, the Supreme Court has said… I can’t be convicted of [the] crime I was convicted of, so I want to get out. I want habeas.” The government’s lawyer responded that “under Bousley v. United States, the defendant would have to show on collateral review that he was actually innocent, meaning he actually did not know about his status.”

It is tricky to predict a Supreme Court case’s outcome from oral argument, but the headcount strongly suggests Hamid will win. If the Supremes’ decision holds that knowledge of felon (or illegal immigrant) status is an element of a 922(g) offense, a flood of actual-innocence 28 U.S.C. § 2241 habeas corpus petitions is sure to follow. That would make Rehaif the “sleeper” decision of the year.

Rehaif v. United States, Case No. 17-9560 (Supreme Court, decision by June 30, 2019)

SCOTUSBlog.com, Argument analysis: Court leaning toward requiring the government to prove that a felon in possession knew he was a felon (Apr. 24)

– Thomas L. Root

Spoiler Alert: There’s No Easter Bunny (Especially an Armed One) – Update for April 23, 2019

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AIN’T NO EASTER BUNNY… AND NO DEFENSE TO FELON-IN-POSSESSION, EITHER

manyguns190423Something that just about all readers of this newsletter (at least, those who have it delivered through the Bureau of Prisons’ email system) have in common is that the current state of the law prohibits them from possessing a firearm or any ammunition. The felon-in-possession statute, 18 USC 922(g)(1), is easier to violate than you’d think. An old, broken shotgun missing its firing pin in a pile of attic junk, a single empty shell casing kept as a souvenir: either is enough to buy you a few more years in federal prison. Read the definitions in 18 USC 921 if you doubt it.

Bernard Cherry was lit up on booze when a police officer found him on his hands and knees in the grass with a flashlight, looking for his keys. The friendly cop helped Bert search until he found a .40 cal. Glock in the grass not far from the hapless drunk. Bernie said someone had tried to rob him, and he had knocked the gun out of the assailant’s hands before the man fled. Bernie had then picked up the Glock, but threw it down when the police officer pulled up.

Bernie had a record, and so was charged with being a felon-in-possession. At trial, he asked for an “innocent possession” instruction, that he was not guilty of being in possession if he obtained the gun innocently and held it with no illicit purpose; and if possession of the gun was only momentary. The district court turned him down, and Bernie was convicted.

bunnygun190423Last week, the 7th Circuit agreed, holding that – like the Easter Bunny – there ain’t no “innocent possession” defense. There may be “necessity” and “duress” defenses to felon-in-possession, where defendants can justify their momentary possession of a gun (you see a 6-year old waving a loaded pistol, and grab it for the child’s safety, for example). But the Circuit has never recognized the kind of defense Bernie proposed.

Besides, the Court pointed out, Bernie threw the gun away. “Even though he was in the presence of law enforcement,” the 7th said, “there is no evidence that he took any action, much less immediate action, to turn over the firearm.”

United States v. Cherry, 2019 U.S. App. LEXIS 11219 (7th Cir. Apr. 17, 2019)

– Thomas L. Root

Know Your Guns: Supreme Court to Review Mens Rea of Felon-In-Possession – Update for January 14, 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.

SUPREME COURT TO REVIEW FELON-IN-POSSESSION STATUTE

gun160718The felon-in-possession statute, 18 USC 922(g)(1), makes it illegal for a convicted felon to possess a gun or ammo. But the statute does not specify a punishment. Instead, 18 USC 924(a)(2) provides the 10-year maximum for anyone who knowingly violates the F-I-P statute.

But what do you have to know? Do you have to know you’re breaking the law? Know that you are a convicted felon, or that what you possess is really a gun? Or just know that whatever it is, you possess it?

The Supreme Court granted review to a case that explores the mens rea requirement for the F-I-P statute a case which has implications for thousands of people convicted of being felons-in-possession, as well for the general issue of mens rea requirements for federal criminal statutes. The implications for people serving time for such convictions could be significant.

burglthree160124Certiorari was also granted in a case asking whether generic burglary requires proof that a defendant intended to commit a crime at the time of unlawful entry or whether it is enough that the defendant formed the intent to commit a crime while “remaining in” the building or structure. Two circuits hold the defendant has to intend to commit a crime as he or she enters. Four hold that it’s burglary even if a defendant can enter the structure with a pure heart, and only later decides to commit a crime.

Because burglary is a crime of violence offense for both the Armed Career Criminal Act conviction and the Guidelines career offender label, the holding could be important for a lot of people now doing time.

It is unclear whether the cases will be decided by June or will go into the the next term starting in October 2019.

Quarles v. United States, Case No. 17-778 (certiorari granted Jan. 11, 2019) 

Rehaif v. United States, Case No. 17-9560 (certiorari granted Jan. 11, 20190

– Thomas L. Root

Convicted CEO Wins Back Gun Rights – Update for October 9, 2018

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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.

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DISTRICT COURT SAYS NOT ALL FELONIES MAKE YOU A FELON-IN-POSSESSION

carriefgun170807One of the most popular offenses charged by U.S. Attorneys is 18 USC 922(g)(1), the felon-in-possession statute. The section prohibits people who have been convicted in any court of a crime punishable by imprisonment for a term exceeding one year from possessing firearms or ammunition that have traveled in interstate commerce.

There’s a twist, however (isn’t there always?) Under 18 USC 921(20), a “crime punishable by imprisonment for a term exceeding one year” does not include any federal or state offenses “pertaining to antitrust violations, unfair trade practices, or other similar offenses relating to the regulation of business practices…”

Greg Reyes, a corporate executive who did 18 months in 2010 for fraudulent backdating of corporate stock options, has sued the Dept. of Justice, arguing that his securities law convictions were “similar offenses relating to the regulation of business practices,” and thus he was not prohibited from buying a handgun.

gunknot181009The government responded that “other similar offenses relating to the regulation of business practices…” were only those relating to antitrust or unfair trade practices. The district court, however, held a week ago that a similar offense is any other offense “if an examination of either its primary purpose or the elements of the violation reveals that the offense statute is designed primarily to address economic harm to consumers or competition.”

Under this standard, none of Greg’s prior convictions for securities fraud, falsifying corporate books and records, and making false statements to accountants required the government to prove an effect on competition or consumers. Nevertheless, the court ruled, each offense was clearly enacted for the purpose of protecting consumers.

The district court concluded that Greg’s felony convictions did not prevent him from possessing guns or ammo. The court did not have to reach Greg’s secondary issue, that the statute violated equal protection by artificially parsing the convictions which would or would not prevent possession of firearms.

gun160711The court  denied a motion by DOJ to dismiss Greg’s lawsuit and set deadline this week to decide whether final relief should be granted in favor of the former executive.

Reyes v. Sessions, Case No. 17-1643 (D.D.C. Sept. 28, 2018)

Guns.com, Convicted securities fraud exec may get gun rights back (Oct. 3, 2018)

– Thomas L. Root

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