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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

SCOTUS Says ‘My Bad’ Remains Bad Forever under ACCA – Update for May 24, 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.

BABY DID A BAD, BAD THING…

The Supreme Court yesterday took on the role of a scold, holding in essence that if the thing was bad when you did it, the fact that it isn’t bad now doesn’t much matter.

gun160718The two defendants involved, Brown and Jackson, were convicted of being a felon in possession of a gun. Because each had three prior convictions in state court for what 18 USC § 924(e) calls a “serious drug offense,” the mandatory minimum sentence for each was 15 years under the Armed Career Criminal Act.

For a state crime to qualify as a “serious drug offense,” it must carry a maximum sentence of at least 10 years’ imprisonment and involve “a controlled substance… as defined in section 102 of the Controlled Substances Act. The CSA includes a schedule of controlled substances ( 21 USC §§ 811-12) which must be updated each year by the Attorney General.

So say you’re convicted three times in Seattle of trafficking frappacinone–a controlled substance that gives frappucinos their delicious froth–to local coffee shops. Frappacinone happens to be listed as a controlled substance by a caffeine-hating Attorney General. Then, 10 years later, a new AG who survives on Starbucks deschedules frappacinone, so that any 8-year-old with a parent’s credit card can get a frap buzz.

Unfortunately, you get caught carrying a gun (merely for protection from all the coffee shop owners you overcharged during your frappacinone-dealing days). Your three prior frap-trafficking drug convictions make you eligible for an ACCA sentence.

frappucino240524You argue to your sentencing judge that you might have been a drug dealer when you got convicted in Seattle of pushing frappucinone, but if you were doing it today, you’d just be a latter-day Howard Schultz. In other words, you argue that whether your three prior state-law convictions constitute a “serious drug offense” should depend on whether the drug you were pushing is on the federal schedules when you got caught with the gun, not when you got caught trafficking the coffee dope.

Yesterday, the Supreme Court ruled 6-3 that the state-law conviction was a “serious drug offense” if it qualified when a defendant commits the drug offense, not if it still qualified much later when a defendant commits the felon-in-possession offense.

“Precedent and statutory context support the Government’s interpretation,” the Court ruled. The “ACCA gauges what a defendant’s ‘history of criminal activity’ says about his or her ‘culpability and dangerousness.’ In previous cases, the Court has held that ACCA requires sentencing courts to examine the law as it was when the defendant violated it. This “backward-looking” approach supports the Government’s interpretation. And the plain language of the statute points to the same conclusion. Section 924(e)(2)(A)(i), which immediately precedes the provision at issue, defines a ‘serious drug offense’ to include, among other things, ‘offense[s] under the Controlled Substances Act.’ A later change in a federal drug schedule does not change the fact that an offense ‘under the CSA’ is a ‘serious drug offense.’”

In essence, if it was a bad, bad thing when baby did it, it remains a bad, bad thing forever.

babybad240524
The Court’s 6-3 split is not the “liberal justice-conservative justice” split pundits have come to expect. The dissent, written by Justice Ketanji Brown Jackson (who is not related to either defendant Brown or Jackson) was joined by Justice Elana Kagan and reputedly conservative Justice Neil Gorsuch. Justice Sonia Sotomayor, generally seen as a liberal justice, was with the majority. Justice Jackson’s dissent argued that where a statute like the ACCA cross-references another statute (the drug schedules of 21 USC § 812), we have always simply applied the version of the other provision in effect at the time the cross-referenced provision was needed, even if Congress amended that provision at some point in the past.”

Brown v. United States, Case Nos. 22-6389, 22-6640, 2024 U.S. LEXIS 2261 (May 23, 2024)

Courthouse News, Conviction timing is key to solving defunct drug charge sentencing row, Supreme Court says (May 23, 2024)

– Thomas L. Root

The Guns of August – Update for August 11, 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 IS OUR HEURISTIC”

The 5th Circuit already has a reputation in gun-lovin’ circles for applying last year’s New York State Rifle & Pistol Association v. Bruen decision in United States v. Rahimi, holding that even a dirtbag subject to a domestic protection order had a 2nd Amendment right to possess a gun.

whataburger230703(In its final action before fleeing Washington, DC, at the end of June for three months of summer vacation, the Supreme Court granted the government’s petition for certiorari in Rahimi, meaning that What-A-Burger, road rage, and stalking will soon be a part of 2nd Amendment discourse).

Under 18 U.S.C. § 922(g)(3), you may not possess a firearm if you are an “unlawful user” of a controlled substance. A couple of district courts have already ruled that Bruen invalidates this prohibition, but on Wednesday, Patrick Daniels – maybe the guy Charlie Daniels (no apparent relation) had in mind as driving down the highway while “tokin’ on a number and digging on the radio” – was the latest beneficiary of Bruen’s historical “heuristics.”

Pat is a dedicated but “unlawful user” of cannabis. When Pat was pulled over for a traffic infraction, police smelled marijuana in his car. A search turned up a couple of loaded handguns. When questioned, Pat admitted that he smoked marijuana about 14 days per month, although no one thought to ask him whether he was high at the time or, for that matter, test him for controlled substances.

marijuana221111That was a mere detail to the DEA, however. Before Pat knew it, he was charged with a § 922(g)(3) offense. A jury found him guilty, and he was sentenced to nearly four years in prison.

Pat appealed, arguing that Bruen made his conviction a violation of the 2nd Amendment. Two days ago, the 5th Circuit agreed.

The Circuit first concluded that the 2nd Amendment clearly applied to Pat:

The right to bear arms is held by “the people.” That phrase “unambiguously refers to all members of the political community, not an unspecified subset.” Indeed, the Bill of Rights uses the phrase “the people” five times. In each place, it refers to all members of our political community, not a special group of upright citizens. Based on that consistent usage, [District of Columbia v.] Heller concluded that “the Second Amendment right is exercised individually and belongs to all Americans.” Even as a marihuana user, Daniels is a member of our political community. Therefore, he has a presumptive right to bear arms. By infringing on that right, § 922(g)(3) contradicts the plain text of the Second Amendment.

The 2nd Amendment codified a “‘pre-existing right’ with pre-existing limits,” the 5th explained. Thus, “to ascertain those limits, history is our heuristic. Because historical gun regulations evince the kind of limits that were well-understood at the time the 2nd Amendment was ratified, a regulation that is inconsistent with those limits is inconsistent with the 2nd Amendment. So whether Pat’s conviction violated his 2nd Amendment right to bear arms “depends on whether § 922(g)(3) is consistent with our nation’s historical tradition of firearm regulation,” the 5th said. “It is a close and deeply challenging question.”

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

However, the Circuit found, while “throughout American history, laws have regulated the combination of guns and intoxicating substances,” at no time “in the 18th or 19th century did the government disarm individuals who used drugs or alcohol at one time from possessing guns at another… [O]ur history and tradition may support some limits on an intoxicated person’s right to carry a weapon, but it does not justify disarming a sober citizen based exclusively on his past drug usage. Nor do more generalized traditions of disarming dangerous persons support this restriction on nonviolent drug users. As applied to Daniels, then, § 922(g)(3) violates the 2nd Amendment.”

Meanwhile, the 5th Circuit took in the chin last week when the Supreme Court reversed its refusal to stay a district court holding that new Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) that effectively banned “ghost guns” violated the Administrative Procedure Act.

At the end of June, Judge Reed O’Connor of the Northern District of Texas held in Garland v. Vanderstok that ATF regulations defining “ghost guns” – kits of components that do not meet the definition of “firearm” but may be assembled, with some simple machining performed at home by the end user, into functional firearms lacking any serial number – as firearms exceeded the agency’s authority and thus were invalid.

The government sought a stay of Judge O’Connor’s order from the 5th Circuit, which the Circuit denied. On July 24, the 5th ruled that “[b]ecause the ATF has not demonstrated a strong likelihood of success on the merits, nor irreparable harm in the absence of a stay, we DENY the government’s request to stay the vacatur of the two challenged portions of the Rule…This effectively maintains, pending appeal, the status quo that existed for 54 years from 1968 to 2022.”

Last Wednesday, the Supreme Court reversed the 5th Circuit, holding in a one-paragraph order that Judge O’Connor’s injunction against the new rule is “stayed pending the disposition of the appeal in the United States Court of Appeals for the Fifth Circuit and disposition of a petition for a writ of certiorari, if such a writ is timely sought.”

The Supreme Court decision granting the stay was 5-4, with Justice Barrett in the majority. This surprised some commentators, who have placed Justice Barrett firmly in the pro-2nd Amendment camp. But as Slate argued Wednesday, her decision in favor of a stay does not necessarily mean the ATF can breathe easy:

Barrett’s vote may be attributable to her distaste for “nationwide vacatur.” In a recent decision, the justice cast serious doubt on the legality of this tool, which allows a lone federal judge to block a federal policy in all 50 states. She is quite right to be skeptical that this power exists, or at least that it can be used as freely as O’Connor and his fellow conservatives deploy it today… If that’s true, and Barrett’s vote was purely procedural, then the ghost guns rule is not out of the woods yet… When it comes back to SCOTUS on the merits, though, Barrett could vote to strike down the rule, since the side debate over O’Connor’s use of “vacatur” would no longer be relevant. Gun rights advocates will fight this one all the way to the bitter end. And the Biden administration should not assume it has Barrett on its side as it fights for the new rule’s long-term survival.

gun160711All of this is prelude for the central question of interest to prisoners, whether Bruen has invalidated 18 USC 922(g)(1), the felon-in-possession statute. That question, already decided in favor of defendants in the 3rd Circuit – Range v. Atty General – and against defendants in the 8th Circuit – United States v. Jackson – will no doubt be reaching the Supreme Court soon enough.

United States v. Daniels, Case No. 22-60596, 2023 U.S. App. LEXIS 20870 (5th Cir. Aug. 9, 2023)

District of Columbia v. Heller, 554 U.S. 570 (2008)

N.Y. State Rifle & Pistol Ass’n v. Bruen, 599 U.S. —, 142 S. Ct. 2111 (2022)

Vanderstok v. Blackhawk Mfg. Grp. Inc., Civil Action No. 4:22-cv-00691, 2023 U.S. Dist. LEXIS 115474 (N.D. Tex. June 30, 2023)

Order, Garland v. VanderStok, Case No. 23A82, 2023 U.S. LEXIS 2870 (Aug. 8, 2023)

Reason, Supreme Court Lets Biden’s ‘Ghost Gun’ Regulations Stand Pending Ongoing Lawsuit (August 9, 2023)

Slate, The Big Question Behind Amy Coney Barrett’s Surprise Vote on Ghost Guns (August 8, 2023)

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

Range v. AG United States, 69 F.4th 96 (3d Cir. 2023)

– Thomas L. Root

News Briefs from Capitol Hill – Update for April 7, 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.

CONGRESSIONAL SHORT TAKES…

House OKs Prohibition on Using Acquitted Conduct in Sentencing: Last week, the House passed H.R. 1621, the Prohibiting Punishment of Acquitted Conduct Act of 2021 by an overwhelming 405-12 vote.

Co-sponsor Steve Cohen (D-TN), said, “The right of criminal defendants to be judged by a jury of their peers is a foundational principle of the Constitution. The current practice of allowing federal judges to sentence defendants based on conduct for which they were acquitted by a jury is not right and is not fair.”

A similar measure introduced by Sens Dick Durbin (D-Illinois) and Chuck Grassley (R-Iowa) was considered in the Senate Judiciary Committee last June and has been advanced to the full Senate.

sliceofpie220407The bill actually does very little. If a federal defendant goes to trial and is acquitted on one or more counts, but is convicted on at least one count, the sentencing judge may nevertheless take into account all of the conduct for which the defendant was acquitted in setting a sentence.  All the judge has to do is conclude that the government proved the defendant committed the acquitted acts by a preponderance of the evidence, a lower standard than the standard for conviction, which is “beyond a reasonable doubt.”

So the legislation will benefit the portion of the 6% who go to trial who are not acquitted of all charges and who are not convicted of all charges.  That’s a pretty small slice. It will not help people whose sentences are affected by charges that the government dismisses or, even more common, accusations of relevant conduct which are never charged to begin with.

And, no, it will not be retroactive. Still, any nudge of sentencing procedure toward sanity is welcome.

H.R. 1621, Prohibiting Punishment of Acquitted Conduct Act of 2021

Steve Cohen, Congressman Cohen Speaks in Favor of and Votes for His Bill Prohibiting the Consideration of Acquitted Conduct in Sentencing (Mar 28)

Sen Hawley Introduces Bill to Slam Judge Jackson and CP Defendants: Who saw this coming?

kittyporn170420In the wake of his criticism of Judge Ketanji Brown Jackson for being soft on child pornography defendants, Sen Josh Hawley (R-MO) has week introduced a bill to require a minimum 5-year sentence on people possessing child pornography and to require judges to sentence within the Guidelines for any child pornography offense.

Rep Ken Buck (R-CO) introduced companion legislation in the House.

A Democratic Party opponent to Hawley said of the bill, “We can count on Senator Hawley to find the lowest common denominator to draw attention to himself. The independent ABA’s review board found this line of questioning to be misleading and multiple fact checkers have debunked the allegations regarding sentencing. Choosing this time to introduce this legislation is purely for attention and designed to appeal to conspiracy.”

S.3951, Protect Act of 2022

H.R. 7263, Protect Act of 2022

Washington Times, GOP introduce bill to beef up child porn sentences after Judge Jackson’s confirmation hearing (March 30, 2022)

KYTV, Springfield, Missouri, Missouri U.S. Sen. Josh Hawley introduces bill over sentences for child porn offenders (April 2, 2022)

crack211102FAMM Issues EQUAL Act Analysis: FAMM released an analysis last week urging the Senate to approve the EQUAL Act reporting that if the bill becomes law, it will reduce sentences for people already serving time for crack offenses by an average of just over six years, cutting 46,500 years off sentences. FAMM estimates that 91% of people benefitting from EQUAL Act are black.

FAMM, The EQUAL Act: Why Congress Must #EndTheDisparity Between Federal Crack & Powder Cocaine Sentences (March 31, 2022)

– Thomas L. Root