§330 Firearms, Explosives, Arson
(U.S.S.G. §2K)
Supreme Court to decide if attempted Hobbs Act robbery is a “crime of violence.” (330) Under 18 U.S.C. § 924(c). a defendant who uses or carries a firearm during and in relation to a “crime of violence” is subject to an enhanced penalty. The Fourth Circuit held that attempted Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a), is not a “crime of violence” under § 924(c). The Supreme Court will review that decision. U.S. v. Taylor, __ S.Ct. __ (July 2, 2021) (granting certiorari).
6th Circuit affirms firearms increase where defendant accidentally fired gun. (330) At defendant’s sentencing for being an illegal alien in possession of a firearm, the district court added four levels under § 2K2.1(b)(6)(B) for possession of a firearm in connection with another felony offense. The district court found that defendant had committed the Tennessee offense of reckless endangerment with a firearm under Tenn. Code Ann. § 39-13-103(a) because he had accidentally fired the gun and hurt his friend. The Sixth Circuit affirmed, ruling that pointing a loaded gun at another person justified a finding of reckless endangerment. U.S. v. Ruiz-Lopez, __ F.4th __ (6th Cir. Nov. 15, 2022) No. 21-6094.
4th Circuit says before 1996, federal arson statute was not a “crime of violence.” (330)(880) In 1994, defendant pleaded guilty to arson under 18 U.S.C § 844(f), and to using or carrying a firearm during and in relation to a “crime of violence,” in violation of 18 U.S.C. § 924(c). In Davis v. U.S., 139 S.Ct. 2319 (2019) struck down the “residual clause” of 18 U.S.C. § 924(c) as unconstitutionally vague. In response, defendant filed 28 U.S.C. §2255 motion challenging his § 924(c) conviction on the ground that § 844(f), before it was amended in 1996, was not categorically a crime of violence because it applied to arson of one’s own property. The Fourth Circuit agreed, holding that before 1996, a violation of § 844(f) was not a “crime of violence.” U.S. v. Davis, __ F.4th __ (4th Cir. Nov. 10, 2022) No. 16-7671.
8th Circuit holds non-retroactive changes in law cannot justify compassionate release. (150)(330) Defendant was sentenced as a career offender and received “stacked” firearms sentences under 18 U.S.C. § 924(c). After the passage of the First Step Act, he moved for compassionate release on the ground that, if sentenced today, he would not qualify as a career offender and his § 924(c) sentences would not be “stacked.” The district court denied the motion, ruling that non-retroactive changes in the law do not constitute “extraordinary and compelling circumstances” for compassionate release. The Eighth Circuit agreed, but recognized that contrary decisions in U.S. v. McCoy, 981 F.3d 271 (4th Cir. 2020), and U.S. v. Maumau, 993 F.3d 821 (10th Cir. 2021), have allowed compassionate release reductions based on non-retroactive changes to § 924(c). U.S. v. Crandall, __ F.4th __ (8th Cir. Feb. 9, 2022) No. 20-3611.
1st Circuit affirms within-guidelines drug/firearms sentence, finding offense was not over-emphasized. (240)(330)(740) Defendant pleaded guilty to drug and firearms offenses, and was sentenced within the guidelines to 168 months. Defendant argued the district court placed too much weight on the circumstances of the case and not enough weight on his history and characteristics. The First Circuit affirmed, finding that the sentencing rationale was defensible because the district court weighed the applicable factors and the offense was serious. U.S. v. Mujero-Vargas, __ F.4th __ (1st Cir. Feb. 2, 2022) No. 19-1941.
1st Circuit upholds district court’s finding that defendant possessed two machineguns. (330) Defendant pleaded guilty to possessing a firearm in furtherance of a drug-trafficking crime, in violation of 18 U.S.C. § 924(c). At sentencing, the district court found him responsible for two machineguns. The First Circuit affirmed, even though the second machinegun had been discovered in a codefendant’s car, because defendant admitted possessing the second machinegun during a plea hearing. U.S. v. Mujero-Vargas, __ F.4th __ (1st Cir. Feb. 2, 2022) No. 19-1941.
5th Circuit says, after Borden, Texas assault on public servant is not a “crime of violence.” (330) Under Borden v. U.S., 141 S.Ct. 1817 (2021), an offense that can be committed recklessly cannot be a “violent felony” under the Armed Career Criminal Act. The definitions of “violent felony” and “crime of violence” are the same, and here, the district court ruled that defendant’s prior conviction under Texas Penal Code § 22.01(a) for assaulting a public servant, was a “crime of violence.” The Fifth Circuit reversed defendant’s § 2K2.1(a)(4)(A) sentence on the ground that the Texas offense could be committed recklessly and therefore did not qualify as a “crime of violence.” U.S. v. Bates, __ F.4th __ (5th Cir. Feb. 7, 2022) No. 19-10813.
8th Circuit says Arizona aggravated assault is a categorically a “crime of violence.” (330) Defendant pleaded guilty to possession of a firearm by a felon. The guideline for that offense, § 2K2.1(a)(2), specifies a higher offense level if the defendant has a prior conviction for a “crime of violence.” To qualify as a “crime of violence,” the prior conviction must have as an element the use, attempted use, or threatened use of physical force against the person of another. Defendant had a prior conviction under Arizona Rev. Stat. § 13-1204(B) for aggravated assault. The Eighth Circuit held that Arizona aggravated assault is categorically a “crime of violence.” U.S. v. Lopez-Castillo, __ F.4th __ (8th Cir. Feb. 4, 2022) No. 21-1533.
8th Circuit says upward variance can be based on factors already considered by the guidelines. (330) (741) Defendant was convicted of being a felon in possession of a firearm. His guidelines range was 63 to 78 months, but the district court varied upward to 96 months. Defendant argued that the factors the district court emphasized were already taken into consideration by the guidelines. The Eighth Circuit found that the district court did not rely solely on the violent nature of defendant’s offense or defendant’s history of gun possession, but also considered the bullet hole in the car into which defendant fired. The panel also held that factors that were already taken into account by the guidelines can nevertheless form the basis for a variance. U.S. v. Obi, __ F.4th __ (8th Cir. Feb. 8, 2022) No. 21-1444.
10th Circuit says, after Borden, VICAR assault convictions were not “crimes of violence” under §924(c). (330) Defendants were convicted under the Violent Crimes in Aid of Racketeering statute, 18 U.S.C. § 1959, and of carrying a firearm during a “crime of violence,” under 18 U.S.C. § 924(c). Thereafter, in Borden v. U.S., 141 S.Ct. 1817 (2021), the Supreme Court held that an offense that can be committed recklessly is not a violent felony under the Armed Career Criminal Act. Defendants filed § 2255 motions arguing that because their assault convictions under VICAR could be committed recklessly, they were not “crimes of violence” and could not serve as predicates for their § 924(c) convictions. The Tenth Circuit agreed, and remanded with instructions to vacate the defendants’ § 924(c) convictions. U.S. v. Toki, __ F.4th __ (10th Cir. Jan. 31, 2022) No. 17-4153.
1st Circuit affirms upward drug-firearms variance where court explained reasons. (240)(330)(741) Defendant pleaded to drug and firearm offenses. His guidelines range was 78 to 84 months, but the court varied upward to 144 months. The First Circuit affirmed, noting that the district court articulated its reasons and addressed defendant’s age, dependents, education level, personal habits, prior employment, lack of a criminal record, and kindred considerations. U.S. v. Merced-García, __ F.4th __ (1st Cir. Jan. 25, 2022) No. 19-2033.
1st Circuit reiterates that Hobbs Act robbery is a “crime of violence” under firearms statute. (330) Defendant was convicted of Hobbs Act robbery and using or carrying a firearm during and in relation to a “crime of violence,” under 18 U.S.C. § 924(c) The First Circuit reiterated its holding in U.S. v. Garcia-Ortiz, 902 F.3d 102 (1st Cir. 2018), that Hobbs Act robbery is a “crime of violence” for purposes of § 924(c). U.S. v. Torres-Correa, __ F.4th __ (1st Cir. Jan. 18, 2022) No. 19-1639.
1st Circuit affirms upward variance where guidelines did not account for multiple firearms. (330)(741) Defendant pleaded guilty to drug and firearms offenses. His guidelines range was 78 to 24 months but the court varied upward to 144 months, relying on defendant’s possession of seven guns, including two machine guns, and more than 1,500 rounds of ammunition. The First Circuit affirmed, ruling that defendant’s possession of multiple firearms and ammunition were not accounted for by the guidelines. U.S. v. Merced-García, __ F.4th __ (1st Cir. Jan. 25, 2022) No. 19-2033.
9th Circuit says attempted armed robbery is a “crime of violence.” (330) Defendants pleaded guilty to armed bank robbery and using a firearm during and in relation to a “crime of violence,” in violation of 18 U.S.C. § 924(c). In the indictment, the count charging a violation of § 924(c) mistakenly referred to a conspiracy count to which defendants also pleaded. They claimed that the “ambiguity” in the indictment vitiated their § 924(c) convictions. The Ninth Circuit held that the district court had “squarely found” that their § 924(c) convictions rested on their armed bank robbery convictions. The court also reiterated that armed bank robbery is a “crime of violence” and ruled that attempted armed bank robbery is also a “crime of violence.” Young v. U.S., __ F.4th __ (9th Cir. Jan. 18, 2022) No. 20-71740.
1st Circuit affirms upward variance based on multiple guns. (330)(741) Defendant pleaded guilty to drug and firearms offenses. His guidelines range was 70 to 76 months but the court varied upward to 88 months because defendant possessed two guns, one of which was in a child’s bedroom. The First Circuit affirmed, finding that the district court properly relied on defendant’s possession of multiple guns. The sentence was a “defensible result.” U.S. v. Valle-Colón, __ F.4th __ (1st Cir. Dec. 20, 2021) No. 18-1360.
1st Circuit affirms increase where firearm was possessed during a robbery. (330) At sentencing for possession of a firearm by a felon, the court added four levels under § 2K2.1(b)(6)(B) for committing the offense during a robbery. The First Circuit affirmed, finding that the district court properly relied on the testimony of two witnesses to find by a preponderance that defendant committed the robbery. U.S. v. Hernández-Negrón, __F.4th __ (1st Cir. Dec. 17, 2021) No. 19-2021.
1st Circuit affirms large upward variance based on firing gun during robbery and criminal history. (330) (741) Defendant pleaded guilty to possession of a firearm by a felon. His guidelines range was 30 to 37 months, but the court varied upward to 84 months because defendant had fired the gun during an armed robbery, had a long criminal history, and had absconded for a year after the robbery. The First Circuit affirmed the upward variance, ruling that that court’s reasons supported the sentence. U.S. v. Hernández-Negrón, __ F.4th __ (1st Cir. Dec. 17, 2021) No. 19-2021.
8th Circuit affirms within-guidelines sentence, even though sentence was above median. (330)(742) Defendant pleaded guilty to possession of a firearm by a felon, and was sentenced to 96 months—within the guidelines range. He argued that his sentence was substantively unreasonable because the median sentence for his offense was 72 months and any connection between his offense and other criminal conduct was minimal. The Eighth Circuit affirmed, noting that the district court had weighed the 18 U.S.C. § 3553(a) factors. The fact that defendant’s sentence was above the median for similar offenses did not make it unreasonable. U.S. v. McDaniel, __ F.4th __ (8th Cir. Dec. 8, 2021) No. 20-2902.
8th Circuit affirms upward variance, finding court properly weighed violent history. (330)(741) Defendant pleaded guilty to possession of a firearm by a prohibited person based on his firing a shot at an apartment building. His guidelines range was 77 to 96 months, but the court varied upward to 102 months. Defendant argued that the district court relied on factors that the guidelines already considered and failed to give weight to mitigating factors. The Eighth Circuit affirmed. finding that the district court had weighed defendant’s proclivity toward violent behavior and had mitigated its sentence because of defendant’s mitigating factors. U.S. v. Todd-Harris, __ F.4th __ (8th Cir. Dec. 9, 2021) No. 20-3123.
2d Circuit says conspiracy to commit RICO is not a “crime of violence” under § 924(c) (330) Defendant was convicted of conspiracy to commit RICO and using or carrying a firearm during and in relation to a “crime of violence,” in violation of 18 U.S.C. § 924(c). The district court sentenced defendant to 60 months on the § 924(c) count, but the Second Circuit held that conspiracy to commit RICO is not a “crime of violence” and vacated the firearms sentence. U.S. v. Capers, __ F.4th __ (2d Cir. Dec. 14, 2021) No. 17-1836.
8th Circuit affirms reduction under First Step Act’s change to § 924(c) firearm “stacking” rule. (330) Defendant moved to reduce his 670-month sentence for bank robbery and firearms, based on the First Step Act’s change in the rules for “stacking” prior firearms convictions under 18 U.S.C. § 924(c). The district court granted the motion and reduced defendant’s sentence from 670 months to 454 months. Defendant appealed, arguing that his sentence should have been reduced to time served. The Eighth Circuit rejected the argument, noting that the reduction was discretionary and the district court had considered the 18 U.S.C. § 3553(a) factors. U.S. v. Davis, __ F.4th __ (8th Cir. Dec. 13, 2021) No. 20-2895.
1st Circuit upholds “official victim” adjustment in § 924(c) firearms case. (330)(410) Defendant was convicted of Hobbs Act robbery and using a firearm during a crime of violence under 18 U.S.C. §924(c). At sentencing the court added six levels for “official victim” under § 3A1.2(c)(1) because, during a car chase, defendant told a coconspirator to shoot at the pursuing police officers. On appeal, defendant argued that this adjustment was barred by Application Note 4 to § 2K2.4 which bars “any specific offense characteristic for . . . firearm[s].” The First Circuit disagreed, ruling that Note 4 only bars increases for Chapter 2 “specific offense characteristics,” not Chapter 3 adjustments. U.S. v. Carter, __ F.4th __ (1st Cir. Dec. 2, 2021) No. 20-1953.
6th Circuit affirms § 924(c) “crime of violence” based on “elements,” despite “residual clause” invalidity. (330) In 1996, petitioner pleaded guilty to aiding and abetting attempted robbery, second-degree murder and use of a firearm in a “crime of violence,” under 18 U.S.C. § 924(c). After U.S. v. Davis, 139 S.Ct. 2319 (2019), invalidated § 924(c)’s “residual clause” definition of “crime of violence,” petitioner filed a 28 U.S.C. § 2255 motion arguing that his second-degree murder conviction was not a “crime of violence” for §924(c) purposes. The Sixth Circuit rejected the argument, noting that petitioner had also been convicted of aiding and abetting attempted robbery, and that is necessarily a “crime of violence” under § 924(c)’s “elements” clause. Harris v. U.S., __ F.4th __ (6th Cir. Dec. 2, 2021) No. 21-5040.
9th Circuit reiterates that Hobbs Act robbery is a “crime of violence.” (330)(520) Defendant pleaded guilty to Hobbs Act robbery and to carrying a firearm during and in relation to a “crime of violence,” in violation of 18 U.S.C. § 924(c). Defendant argued that Hobbs Act robbery was not a “crime of violence” under § 924(c). The Ninth Circuit reiterated its holding in U.S. v. Dominguez, 954 F.3d 1251 (9th Cir. 2020), that Hobbs Act robbery is a “crime of violence” under § 924(c). U.S. v. Grady, __ F.4th __ (11th Cir. Nov. 22, 2021) No. 20-14341.
4th Circuit upholds cross-reference to first-degree murder guideline in firearms case. (210)(330) Defendant pleaded guilty to possession of a firearm by a felon. Defendant possessed the firearm while killing a police officer. At sentencing, the district court applied the cross-reference in § 2K2.1(c)(1)(B) and held that the guideline for murder, § 2A1.1, should apply. Defendant argued that the cross-reference should have been to the manslaughter guideline because he acted in the “heat of passion.” The Fourth Circuit found that the killing was premeditated because defendant pleaded guilty in state court to premeditated killing, and he shot the officer in the forehead. U.S. v. Ball, __ F.4th __ (4th Cir. Nov. 18, 2021) No. 20-4340.
4th Circuit says sentence not unreasonable despite possibly lower sentence in state court. (330)(742) Defendant used a firearm to kill a police officer and pleaded guilty to possession of a firearm by a felon. He was sentenced to the statutory maximum of 10 years. On appeal, defendant argued that his sentence was substantively unreasonable because his sentence in state court would have been lower. The Fourth Circuit rejected the argument, ruling that the possibility of a lower sentence for the same conduct under state law does not make a federal sentence unreasonable. U.S. v. Ball, __ F.4th __ (4th Cir. Nov. 18, 2021) No. 20-4340.
8th Circuit affirms upward variance despite claim that factors were already considered by guidelines. (330)(741) Defendant pleaded guilty to possessing a firearm by a felon. His guidelines range was 37 to 46 months, but the court varied upward to 60 months, based on defendant’s violent criminal history and willingness to possess firearms. Defendant argued that the district court improperly weighed the 18 U.S.C. § 3553(a) factors and that his criminal history was already considered by the guidelines. The Eighth Circuit affirmed, ruling that the court adequately weighed the § 3553(a) factors and relied on several convictions that had not been part of his guidelines score. U.S. v. Hubbs, __ F.4th __ (8th Cir. No.18, 2021) No. 20-3044.
8th Circuit finds defendant possessed gun while resisting arrest. (330) Defendant pleaded guilty to possession of a firearm by a felon. At sentencing, the district court added four levels under § 2K2.1(b)(6)(B) for possessing the gun in connection with another felony offense. Defendant had struggled with police officers while armed, and the district court found that this constituted resisting arrest under North Dakota law. The Eighth Circuit agreed, holding that the officers had probable cause to arrest defendant before they discovered the firearm, and the firearm was available to defendant while he was resisting arrest. U.S. v. Nilsen, __ F.4th __ (8th Cir. Nov. 19, 2021) No. 20-2688.
6th Circuit says defendant need not be charged with murder for cross-reference to apply. (210)(330) The firearms guideline, § 2K2.1(c)(1)(A), provides a cross-reference if defendant’s offense falls within another guideline. Here, the district court applied the attempted first-degree murder guideline, § 2A2.1(a)(1), because defendant fired his gun at a teller when he robbed the bank. The Sixth Circuit affirmed, ruling that a defendant need not be charged with the other offense for the cross-reference to apply and the evidence supported the district court’s cross-reference. U.S. v. Howell, __ F.4th __ (6th Cir. Nov. 8, 2021) No. 20-5858.
1st Circuit upholds finding that firearm was used to terrorize others on Facebook. (330)(410) Defendant posted videos on Facebook indicating that he wanted to replicate the El Paso Walmart shooting at a Walmart in Maine. After his arrest, he wrote on his cell walls that he was a terrorist. He pleaded guilty to possession of a firearm by a felon. At sentencing, the court added four offense levels under § 2K2.1(b)(6)(B) for possessing the firearm during another felony offense, i.e., a violation of Maine Rev. Stat. Ann. Tit. 17-A, § 210(1) by terrorizing another. Defendant argued that his Facebook videos were not sent to a particular person and were only shared with friends. The First Circuit affirmed, finding that one of the people who received the threat was concerned enough to contact law enforcement and a sufficient nexus existed between the firearm and the terrorizing statute. U.S. v. Rogers, __ F.4th __ (1st Cir. Nov. 4, 2021) No. 20-2165.
1st Circuit upholds above-guidelines sentence despite claim that factors were already considered. (330)(741) Defendant pleaded guilty to possession of a firearm by a felon. His guidelines range was 51 to 63 months, but the court varied upward to 72 months. Defendant argued that the district court’s reasons for departing upward were already accounted for in the guidelines. The First Circuit affirmed because defendant had made threats to others and because of the need to protect the safety of the public. U.S. v. Rogers, __ F.4th __ (1st Cir. Nov. 4, 2021) No. 20-2165.
5th Circuit rules Texas robbery is a “crime of violence.” (330)(520) The guideline for possession of a firearm by a felon. § 2K2.1(a)(4)(A), sets a higher offense level if defendant has a prior conviction for a “crime of violence,” as that term is defined in § 4B1.2(a). That term is defined in part to mean “robbery.” Defendant, convicted of possession of a firearm by a felon, had a prior conviction under Texas law for robbery. The Fifth Circuit held that Texas robbery is a “crime of violence.” U.S. v. Adair, __ F.4th __ (5th Cir. Oct. 26, 2021) No. 21-50218.
7th Circuit reverses increase for using firearm during another offense. (330) Defendant pleaded guilty to possession of a firearm while a felon. At sentencing, the district court added four levels under § 2K2.1(b)(6)(B) for possessing the firearm in connection with another felony offense. The Seventh Circuit reversed because the district court failed to distinguish between possessing the firearm during another offense and possessing the firearm while committing another offense. The panel noted that a defendant could possess the firearm but not use it while committing the offense. U.S. v. Price, __ F.4th __ (7th Cir. Nov. 1, 2021) No. 20-2490.
1st Circuit finds court considered mitigating factors in sentencing at high end of range. (330)(742) At defendant’s sentencing for possession of a firearm by a felon, the district court considered the 18 U.S.C. §3553(a) factors and sentenced defendant at the high end of the guidelines range. On appeal, defendant argued that the court failed to consider the mitigating factors that he had advanced. The First Circuit found that the district court had considered all mitigating factors, ruling that the district court was not required to go into “exquisite detail” about the factors it had considered. U.S. v. Ruperto-Rivera, __ F.4th __ (1st Cir. Oct. 12, 2021) No. 20-1817.
6th Circuit affirms upward variance despite court’s comments about defendant’s mental state. (330)(741) Defendant was convicted of possession of a firearm by a felon, His guidelines range was 84 to 105 months, but the district court varied upward to 120 months. The district court noted that two mental health evaluations found that defendant had an antisocial personality disorder, but defendant was unwilling to admit that he had a mental problem. On appeal, defendant argued that the district court contradicted itself by saying that defendant may not be able to admit that he had a problem because of his mental illness. The Sixth Circuit found that the court’s comments did not affect the upward variance, which was based on the court’s finding that defendant had a “high risk” of reoffending. U.S. v. Prigmore, __ F.4th __ (6th Cir. Oct. 12, 2021) No. 20-3989.
10th Circuit holds that § 4B1.2 includes state “controlled substance offenses.” (330)(520) Defendant pled guilty to possession of a firearm by a felon. The guideline for that offense, § 2K2.1(a)(4)(A), sets an enhanced offense level if the defendant had a prior conviction for a “controlled substance offense,” as that term is used in § 4B1.2. Defendant argued that a “controlled substance offense” had to involve a substance that was illegal under federal law, as required for the Armed Career Criminal Act in U.S. v. Cantu, 964 F.3d 924 (10th Cir. 2020).” The Tenth Circuit rejected the argument, noting that § 4B1.2 specifically includes state offenses in its definition of “controlled substance offense.” Accordingly, defendant’s prior Oklahoma conviction was a “controlled substance offense.” U.S. v. Jones, __ F.4th __ (10th Cir. Oct. 19, 2021) No. 20-6112.
9th Circuit enforces waiver of appeal even though Hobbs Act sentence no longer valid after Davis. (224) (330)(790)(880) Defendant pleaded guilty to conspiracy to commit Hobbs Act robbery and brandishing a firearm during a “crime of violence,” in violation of 18 U.S.C. § 924(c), and was sentenced to 14 years. Defendant filed a notice of appeal even though his plea agreement waived the right to appeal. While his appeal was pending, the Supreme Court in U.S. v. Davis, 139 S.Ct. 2319 (2019), held that conspiracy to commit Hobbs Act robbery is not a “crime of violence.” Nevertheless, the Ninth Circuit enforced the appellate waiver, refusing to expand the “illegal sentence” exception adopted in U.S. v. Torres, 828 F.3d 1113, 1124–25 (9th Cir. 2016), to include an “illegal conviction” exception to waivers of appeal. The appeal was dismissed. U.S. v. Goodall, __ F.4th __ (9th Cir. Oct 13, 2021) No. 18-10004.
6th Circuit bars multiple § 922 punishments for single possession of a firearm. (125)(330) Based on a single firearm, defendant pleaded guilty to possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1), and possession of a firearm by a domestic violence misdemeanant, in violation of 18 U.S.C. § 922(g)(9). He was sentenced on both counts. The Sixth Circuit reversed, holding that the Double Jeopardy Clause bars multiple convictions and sentences for two violations of § 922(g) arising out of a single act of possession. The case was remanded with instructions to vacate one of the convictions. U.S. v. Grant, __ F.4th __ (6th Cir. Oct. 1, 2021) No. 20-4078.
1st Circuit finds downward variance was not too high despite changing views about marijuana. (330)(742) Defendant convicted of bank robbery and sentenced to 144 months—well below the low end of his guidelines range as a career offender. Defendant argued that his sentence was unreasonable in part because one of his prior convictions was for a marijuana offense, and there has been a “sea change” in attitudes toward marijuana in recent years. The First Circuit affirmed, noting that federal marijuana laws have not changed, and the below-guideline sentence was not unreasonable. U.S. v. Crocco, __ F.4th __ (1st Cir. Sept. 27, 2021) No. 19-2140.
1st Circuit says 60 months is minimum for 18 U.S.C. § 924(c) firearms conviction. (330) Defendant was convicted of using or carrying a firearm in connection with a crime of violence under 18 U.S.C. §924(c), and sentenced to 75 months. Defendant argued that the maximum for a violation of § 924(c) was 60 months. The First Circuit held that 60 months is the minimum sentence for a § 924(c) violation, not the maximum. U.S. v. Vargas-Martínez, __ F.4th __ (1st Cir. Oct. 1, 2021) No.16-2141.
1st Circuit finds upward variance was not improperly based on elements of offense. (330)(741) Defendant pleaded guilty to two offenses involving possessing two different firearms. For the second possession, the guidelines range was 6 to 12 months, but the court varied upward to 18 months. Defendant argued that the court improperly relied on the elements of the offense to justify the upward variance. The First Circuit rejected the argument, finding that the district court relied on a “panoply of facts” other than the offense elements. U.S. v. Vargas-Martínez, __ F.4th __ (1st Cir. Oct. 1, 2021) No.16-2141.
6th Circuit affirms cross-reference to attempted murder in firearms case. (330) The guideline for possession of a firearm by a felon, § 2K2.1(c)(1)(A), provides a cross-reference where the firearm was used to commit another offense. The district court found that defendant intended to commit murder with the firearm and applied the attempted murder guideline, § 2A2.1. The Sixth Circuit affirmed, finding that defendant intended to kill the victim because she had walked away from him before he shot her. U.S. v. Grant, __ F.4th __ (6th Cir. Oct. 1, 2021) No. 20-4078.
7th Circuit allows reliance on PSR to find prior “crime of violence,” absent contrary evidence. (330) At defendant’s sentencing for possession of ammunition by a felon, the district court relied on the presentence report to find that defendant had a prior conviction under Illinois law, 720 ILCS 5/12-4, for aggravated battery of a peace officer. The district court found that this was a “crime of violence” under § 4B1.2(a)(1), which increased defendant’s offense level under § 2K2.1(a)(2). On appeal, defendant argued that it was improper for the district court to rely on information from the Illinois Department of Corrections in the PSR because it was possible that he had been convicted under a provision that was not a “crime of violence.” The Seventh Circuit held that the district court could rely on the presentence report absent any evidence that undercut the PSR. U.S. v. Cunningham, __ F.4th __ (7th Cir. Oct. 7, 2021) No. 20-3203.
3d Circuit says Hobbs Act robbery is not a “crime of violence.” (330)(520) Defendant was convicted of being a felon in possession of a firearm. The district court found that his prior Hobbs Act robbery conviction under 18 U.S.C. §1951 was a “crime of violence,” requiring an increased offense level under § 2K2.1(a)(2). A “crime of violence” is defined in § 4B1.2(a)(1) as “robbery,” or an offense that has as an element the use, attempted use, or threatened use of physical force against the person of another.” The Third Circuit held that Hobbs Act robbery is overbroad because it includes threats against property, and therefore it is categorically not a “crime of violence” under either of § 4B1.2(a)(1)’s definitions. U.S. v. Scott, __ F.3d __ (3d Cir. Sept. 22, 2021) No. 20-1514.
6th Circuit affirms § 924(c) firearms convictions based on Pinkerton conspiracy liability. (330) Defendants were charged with using or carrying a firearm during a “crime of violence,” in violation of 18 U.S.C. § 924(c), but were not charged with the underlying “crime of violence.” Nevertheless, the court instructed the jury that it could convict them based on Pinkerton v. U.S., 328 U.S. 640 (1946), i.e., by finding that other members of the conspiracy committed § 924(c) offenses and those offenses were reasonably foreseeable to defendants. The Sixth Circuit held that Pinkerton applied, and the jury could properly find that defendants had committed the underlying “crimes of violence” and therefore were guilty of violating § 924(c). U.S. v. Woods, __ F.4th __ (6th Cir. Sept. 17, 2021) No. 20-1214.
8th Circuit says federal arson is not a “crime of violence.” (330) Defendant was convicted of using or carrying a firearm during and in relation to a “crime of violence,” in violation of 18 U.S.C. § 924(c). The “crime of violence” was arson, in violation of 18 U.S.C. § 844(i). A “crime of violence” is defined as the use, attempted use, or threatened use of physical force against the person or property of another. Because one can be convicted under § 844(i) if one burned one’s own house, the Eighth Circuit held that it was not a “crime of violence.” U.S. v. Mink, __ F.4th __ (8th Cir. Aug. 12, 2021) No. 19-3683.
8th Circuit affirms within-guidelines firearms sentence despite upbringing and addiction claims. (330) (742) Defendant pleaded guilty to possession of ammunition by a felon, and was sentenced to 105 months, the top of the guidelines range. He argued that his sentence was greater than necessary to achieve its purposes, valued punishment over drug treatment, and gave too little consideration of his upbringing and addiction to drugs. The Eighth Circuit found that the district court had considered and rejected these factors, and upheld the sentence. U.S. v. Merret, __ F.4th __ (8th Cir. Aug. 9, 2021) No. 20-1368.
10th Circuit says Kansas reckless aggravated assault is not a “crime of violence.” (330) Defendant pleaded guilty to possession of a firearm by a felon. The guideline for that offense, § 2K2.1(a)(2), sets a higher offense level if defendant had a prior conviction for a “crime of violence.” Defendant had a conviction under Kansas Stat. Ann. § 21-3414(a)(2)(B) for reckless aggravated assault. The Tenth Circuit held that under Borden v. U.S., 141 S.Ct. 1417 (2021), a violation of the Kansas statute could not be a “crime of violence” because it could be committed recklessly. U.S. v. Ash, __ F.4th __ (10th Cir. Aug. 4, 2021) No. 17-3223.
6th Circuit upholds increase for altered serial number on gun. (330) Defendant pleaded guilty to possession of a firearm by a felon. At sentencing, the district court added four levels under § 2K2.1(b)(4)(B) because the firearm had an altered or obliterated serial number. The district court relied on the fact that one serial number was obliterated on the gun, even though the other was readable. The Sixth Circuit affirmed, ruling that defacement of one serial number is sufficient for the enhancement. U.S. v. Sands, __ F.3d __ (6th Cir. July 16, 2021) No. 20-1652.
7th Circuit rejects compassionate release despite reduced ”stacking” penalties for § 924(c). (150)(330) In 2002, defendant received “stacked” sentences for two convictions of carrying a firearm during a “crime of violence,” in violation of 18 U.S.C. § 924(c), totaling 32 years. Thereafter, defendant moved for compassionate release under the First Step Act, arguing that the Act’s change in the § 924(c) “stacking” rules constituted an “extraordinary and compelling circumstance” justifying a reduced sentence. The district court denied the motion, and the Seventh Circuit affirmed, holding that the fact that defendant’s sentence would be lower today was not an “extraordinary and compelling circumstance.” U.S. v. Thacker, __ F.3d __ (7th Cir. July 15, 2021) No. 20-2943.
10th Circuit holds that transmitting threats may be a “crime of violence.” (330) Defendant pleaded guilty to using or carrying a firearm in relation to a “crime of violence,” in violation of 18 U.S.C § 924(c). The “crime of violence” was transmitting threats in interstate commerce, in violation of 18 U.S.C. § 875(c). Applying the modified categorical approach, the Tenth Circuit held that transmitting threats in interstate commerce is divisible and can be a “crime of violence.” U.S. v. Mjoness, __ F.3d __ (10th Cir. July 13, 2021) No. 20-8024.
7th Circuit allows upward variance based on factors already considered by guideline. (330)(741) Defendant pleaded guilty to possession of a firearm by a felon. His guidelines range was 33 to 41 months, but the district court varied upward to 72 months. The Seventh Circuit affirmed, rejecting defendant’s arguments that the district court improperly considered factors that were already accounted for in the guidelines. The panel ruled that a district court may rely on a factor that is incorporated into the guidelines without explaining why the guidelines’ treatment of that factor is insufficient. U.S. v. Gonzalez, __ F.3d __ (7th Cir. July 7, 2021) No. 20-1255.
10th Circuit upholds cross-reference in firearms guideline to attempted murder. (330) Defendant pleaded guilty to possession of a firearm by a felon. The court applied the cross-reference in § 2K2.1(c)(1) to reach the attempted murder guideline, § 2A2.1, because defendant fired the gun during an altercation. Defendant argued that he fired the gun in self-defense because another man drew his gun first. The Tenth Circuit upheld the district court’s finding that defendant fired first. U.S. v. Rico, __ F.3d __ (10th Cir. July 7, 2021) No. 20-1050.
11th Circuit upholds large-capacity magazine increase in attempt to illegally purchase gun. (330) Defendant pleaded guilty to making a false statement to a firearms dealer. The district court set his offense level based on § 2K2.1(a)(3) based in part on his attempt to purchase a large-capacity magazine. The Eleventh Circuit affirmed, noting that the magazine was “in close proximity” to the rifle that defendant attempted to purchase. U.S. v. Matthews, __ F.3d __ (11th Cir. July 6, 2021) No. 20-10559.
7th Circuit reiterates that Hobbs Act robbery is a “crime of violence.” (330) Defendant was convicted of Hobbs Act robbery and using or carrying a firearm during and in relation to a “crime of violence,” in violation of 18 U.S.C. § (24(c). A “crime of violence” is an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another. The Seventh Circuit reiterated prior decisions holding that Hobbs Act robbery is a “crime of violence.” U.S. v. McHaney, __ F.3d __ (7th Cir. June 14, 2021) No. 20-1690.
8th Circuit upholds cross-reference to attempted murder in firearm case. (210)(330) Defendant pleaded guilty to possession of a firearm by a drug user, in violation of 18 U.S.C. § 922(g)(3). At sentencing, a detective testified that shell casings from a murder scene matched the shell casings of defendant’s gun, defendant was seen in the vehicle involved in the shooting, defendant was a member of a gang that was a rival of the attempted murder victim’s gang, and defendant had made threats to the rival gang. Based on this testimony, the district court found that defendant had used the firearm in an attempted murder, and applied the cross-reference in § 2K2.1(c)(1)(A) to the attempted murder guideline, § 2A2.1(a)(1). The Eighth Circuit affirmed, ruling that the district court’s finding was supported by a preponderance of the evidence. U.S. v. Clark, __ F.3d __ (8th Cir. June 7, 2021) No. 20-1334.
6th Circuit says change in § 924(c) firearms “stacking” rule does not justify compassionate release. (150) (330) In 1994, defendant was convicted of several bank robberies and was sentenced to 40 years due to the “stacking” of multiple firearms counts under 18 U.S.C. § 924(c). He moved for compassionate release under the First Step Act, relying on change to the § 924(c) “stacking” rule in the same Act. The Sixth Circuit affirmed the denial of the motion on the ground that the Act’s changes to § 924(c) are not retroactive. The panel followed U.S. v. Tomes, 990 F.3.d 500 (6th Cir. 2021), rather than U.S. v. Owens, 996 F.3d 775 (6th Cir. 2021), because Tomes had been decided first. U.S. v. Jarvis, __ F.3d __ (6th Cir. June 3, 2021) No. 20-3912.
7th Circuit says compassionate release motion can be based on change in § 924(c) firearms “stacking” rule. (150)(330) Defendant, a police officer, was sentenced to 40 years based on “stacking” multiple 18 U.S.C. § 924(c) firearms counts. He moved for compassionate release under the First Step Act, based on his prostate cancer. He also argued that his sentence was “disparate” to defendants sentenced after the Act changed § 924(c)’s “stacking” rule—even though the change was not retroactive. In a 2-1 ruling, the Seventh Circuit reversed the denial of the motion, noting that the intervening decision in U.S. v. Gunn, 980 F.3d 1178 (7th Cir. 2020) had expanded the range of “extraordinary and compelling circumstances” beyond § 1B1.13. The majority added that on remand, the district court could properly consider the disparity in sentencing resulting from the non-retroactivity of the First Step Act’s change to the § 924(c) “stacking” rule. Judge Kirsch dissented. U.S. v. Black, __ F.3d __ (7th Cir. June 4, 2021) No. 20-2314.
1st Circuit says “controlled substance offense” depends on law at time of sentencing. (330) Defendant pleaded guilty to possession of a firearm by a prohibited person, in violation of 18 U.S.C. § 922(g)(1). The district court increased defendant’s sentence under § 2K2.1(a)(2) because he had a prior a prior conviction for a “controlled substance offense,” i.e., possession with intent to distribute marijuana under Massachusetts Gen. Laws ch. 94C, §§ 31, Class D(b)(1), 32C(a). The First Circuit reversed, holding that the state statute could make hemp criminal, and because the guidelines did not criminalize possession of hemp at the time of defendant’s sentencing on the § 922(g) offense, the conviction was categorically not a “controlled substance offense.” It did not matter whether hemp was a controlled substance when defendant violated the state statute. U.S. v. Abdulaziz, __ F.3d __ (1st Cir. June 2, 2021) No. 19-2030.
4th Circuit says aggravated RICO conspiracy is not a “crime of violence.” (330) The Fourth Circuit held that a RICO conspiracy, even if “aggravated” by the defendant’s commission of murders, is categorically not a “crime of violence” under 18 U.S.C. § 924(c). That statute defines “crime of violence” as an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another. U.S. v. Simmons, __ F.3d __ (4th Cir. May 28, 2021) No. 18-4875.
8th Circuit applies murder guideline to drug and gun defendant. (210)(330) Defendant pleaded guilty to drug and firearms offenses, but the district court applied the cross-reference to § 2A2.1, the murder guideline, because defendant emptied his gun at police officers when they came to arrest him. The Eighth Circuit affirmed the district court’s finding that defendant had malice aforethought because he laid in wait for a police officer before jumping out of a closet and emptying his firearm at the officer. U.S. v. Comly, __ F.3d __ (8th Cir. May 20, 2021) No. 20-2782.
1st Circuit affirms upward variance against claim that mitigating evidence not considered. (330)(741) Defendant pleaded guilty to possession of a firearm by a felon. His guidelines range was 30 to 37 months, but the court varied upward to 48 months, relying on disciplinary violations during defendant’s previous prison term and the need to deter defendant and promote respect for the law. Defendant argued that the district court failed to consider mitigating evidence, but the First Circuit found that the district court had implicitly considered all of the mitigating evidence. U.S. v. Rodríguez-Cruz, __ F.3d __ (1st Cir. May 12, 2021) No. 20-1072.
4th Circuit says South Carolina possession with intent to distribute is a “controlled substance offense.” (330) Defendant pleaded guilty to being a felon in possession of a firearm. At sentencing, the district court increased his offense level under § 2K2.1(a)(2) based on his prior conviction for a “controlled substance offense” under South Carolina Code § 44-53-375(b) for possession with intent to distribute crack cocaine. The Fourth Circuit held that defendant’s prior offense was categorically a “controlled substance offense.” U.S. v. Williams, __ F.3d __ (4th Cir. May 13, 2021) No. 19-4796.
5th Circuit reverses for lack of proof that gun had a large-capacity magazine. (330) Defendant pleaded guilty to making a false statement in a firearm record, in violation of 18 U.S.C. § 924(a)(1)(A). The guideline for that offense, § 2K2.1(a)(4)(B), requires an offense level of 20 if the offense, involved a “semiautomatic firearm that is capable of accepting a large capacity magazine.” Application Note 2 defines “a large capacity magazine” as one capable of accepting more than 15 rounds that was attached to the firearm or “in close proximity” to it. The Fifth Circuit reversed for lack of proof that the firearm had a large-capacity magazine and remanded for resentencing. U.S. v. Abrego, __ F.3d __ (5th Cir. May 11, 2021) No. 20-40118.
5th Circuit says gun was possessed “in connection with” drugs, even if officers did not suspect drugs. (330) Defendant was convicted of possession of a firearm by a felon. At sentencing, the district court added four levels under § 2K2.1(b)(6)(B) for possessing the gun in connection with another felony offense, because drugs were found on defendant’s person along with the firearm. Defendant argued that the increase was improper because he was not suspected of a drug crime when the officers approached him. The Fifth Circuit held that the increase was proper regardless of what the officers suspected before the arrest. U.S. v. Bass, __ F.3d __ (5th Cir. May 11, 2021) No. 20-10558.
8th Circuit reverses for misapplication of “sporting use” reduction in ammunition case. (330) Defendant was convicted of possession of ammunition by a prohibited person. At sentencing, he sought a reduction under § 2K2.1(b)(2), on the ground that he possessed the firearm solely for sporting purposes. The district court denied the reduction even though defendant showed he was an avid hunter. The Eighth Circuit reversed, finding that the district court improperly relied on defendant’s attempted purchase of a firearm, rather than the ammunition he was actually convicted of possessing. U.S. v. Sholley-Gonzalez, __ F.3d __ (8th Cir. May 10, 2021) No. 19-2914.
11th Circuit finds firearm was possessed “in connection with” drug buy despite its absence. (330) The district court added four levels under § 2K2.1(b)(6)(B) because defendant possessed a firearm “in connection with” another felony. The court relied on the fact that defendant promised to supply drugs and a firearm to an informant, but only delivered the drugs. The Eleventh Circuit affirmed, noting that the drug and gun sale were negotiated together, the informant expected to buy the firearm, and coordinating the sales reduced the risk of detection. U.S. v. Jackson, __ F.3d __ (11th Cir. May 17, 2021) No. 19-14883.
11th Circuit affirms upward firearms variance, finding no overemphasis on criminal history. (330)(741) Defendant pleaded guilty to possession of a firearm by a felon. His guidelines range was 21 to 27 months, but the court varied upward to 30 months. On appeal, the Eleventh Circuit affirmed, rejecting defendant’s argument that the district court overemphasized defendant’s criminal history, and noting that the court had weighed the 18 U.S.C. § 3553(a) factors. U.S. v. Taylor, __ F.3d __ (11th Cir. May 21, 2021) No. 20-10742.
6th Circuit permits compassionate release based on First Step Act’s change in §924(c) “stacking.” (150) (330) In 2004, defendant was convicted of five counts of carrying a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c). At the time, § 924(c) required mandatory “stacked” sentences, so defendant was sentenced to 1,260 months. In 2018, the First Step Act changed the “stacking” rule, but the change was not made retroactive. Nevertheless, defendant filed a “compassionate release” motion under the First Step Act, arguing that the fact that he would have received a much lower sentence today justified relief. The district court denied the motion. On appeal, the Fourth Circuit reversed, holding that the disparity between the original sentence and the sentence he would receive today could constitute an extraordinary and compelling circumstance that might merit compassionate release. The case was remanded for reconsideration. U.S. v. Owens, __ F.3d __ (6th Cir. May 6, 2021) No. 20-2139.
1st Circuit affirms guidelines sentence where court weighed mitigating evidence. (330)(742) Defendant pleaded guilty to possession of a firearm by a felon, and was sentenced to 46 months—the top of the guidelines range. Defendant argued that the court failed to consider his intellectual disability and the fact that his sentence was disparate under 18 U.S.C. § 3553(a)(6). The First Circuit found no error, noting that the court specifically considered defendant’s intellectual disability and stated that it had considered all of the § 3553(a) factors. U.S. v. Ayala-Lugo, __ F.3d __ (1st Cir. Apr. 29, 2021) No. 18-2107.
9th Circuit affirms upward variance despite claim that court disregarded the guidelines. (330)(741) Defendant’s firearms guidelines range was 140 to 175 months, but the district court varied upward to 276 months, saying that defendant was the most dangerous person it had ever sentenced. On appeal, defendant argued that the court disregarded the guidelines range because it was frustrated with the categorical approach, which it was obliged to apply in a prior appeal. The Ninth Circuit rejected the argument, agreeing with the district court that the guidelines range did not adequately account for defendant’s criminal history. U.S. v. Door, __ F.3d __ (9th Cir. Apr. 28, 2021) No. 19-30213.
10th Circuit upholds guidelines sentence for defendant who used firearm to kill his father. (330)(742) Defendant pleaded guilty to possession of a firearm by a defendant convicted of a domestic violence crime. Defendant used the gun to murder his mentally unstable father, who also had a gun. He was sentenced to 120 months, within the guidelines range. On appeal, defendant argued that his sentence was unreasonable because (1) Oklahoma charged him with voluntary manslaughter, not first-degree murder; (2) he believed his possession of the firearm was lawful; (3) he “felt immediate, deep remorse for the death of his father”; and (4) he “did not intend to kill his father.” The Tenth Circuit rejected these arguments, agreeing with the district court that this was not an ordinary case of illegal possession of a firearm. U.S. v. Craine, __ F.3d __ (10th Cir. Apr. 30, 2021) No. 19-6189.
11th Circuit, despite Davis, finds jury could have based § 924(c) conviction on drugs, not Hobbs Act. (330)(880) In 2010, defendant was convicted of conspiracy to commit Hobbs Act robbery and drug offenses, as well as using a firearm in relation to a “crime of violence” or “drug trafficking,” in violation of 18 U.S.C. § 924(c). Thereafter, U.S. v. Davis, 139 S.Ct. 2319 (2019), held that conspiracy to commit Hobbs Act robbery is not a “crime of violence” under § 924(c). Relying on Davis, defendant filed a 28 U.S.C. § 2255 motion challenging the validity of his § 924(c) conviction. The Eleventh Circuit affirmed the district court’s denial of the § 2255 motion, because the jury had been instructed that it could rest defendant’s § 924(c) conviction on the drug counts as well as the Hobbs Act conspiracy. Accordingly, defendant could not show that his § 924(c) conviction was based on the Hobbs Act conspiracy. Foster v. U.S., __ F.3d __ (11th Cir. May 4, 2021) No. 19-14771.
11th Circuit affirms upward variance for defendant with long criminal history. (330)(741) Defendant pleaded guilty to possession of a firearm by a felon. His guidelines range was 12 to 18 months but the court varied upward to 70 months, based on his lengthy criminal history, some of which was older than 15 years. The Eleventh Circuit affirmed, noting that “violent offenders are good candidates for upward variances” and finding that the district court properly considered the factors in 18 U.S.C. § 3553(a), several of which relate to criminal history. U.S. v. Riley, __ F.3d __ (11th Cir. Apr. 28, 2021) No. 19-14013.
10th Circuit upholds cross-reference to murder guideline in firearm case. (210)(330) Defendant pleaded guilty to possession of a firearm by a person who was convicted of a crime of domestic violence. Defendant used the firearm to kill his mentally unstable father, who also had a firearm. Guideline § 2K2.1(c)(1)(B), instructs the court to use the most applicable guideline for murder if death resulted from the use of the gun. The district court applied the first-degree murder guideline, § 2A1.1, to sentence defendant to the statutory maximum, 120 months. The Tenth Circuit upheld the cross-reference, ruling that the district court properly found that defendant had malice aforethought and did not believe that deadly force was necessary to stop his father’s use of the gun. U.S. v. Craine, __ F.3d __ (10th Cir. Apr. 30, 2021) No. 19-6189.
7th Circuit says Hobbs Act robbery remains a “crime of violence” under elements clause of §924(c). (224) (330) In U.S. v. Brown, 973 F.3d 667, 697 (7th Cir. 2020), the Seventh Circuit reaffirmed prior cases holding that Hobbs Act robbery is a “crime of violence” under the “elements” clause of 18 U.S.C. § 924(c), despite U.S. v. Davis, 139 S. Ct. 2319, 204 L.Ed.2d 757 (2019), which struck down the “residual clause” of 18 U.S.C. § 924(c) as unconstitutionally vague. Here, the Seventh Circuit denied defendant’s request to reconsider its prior rulings. The panel held that Hobbs Act robbery remains a “crime of violence” under the “elements” clause of §924(c). U.S. v. Hammond, __ F.3d __ (7th Cir. Apr. 26, 2021) No. 19-2357.
10th Circuit affirms upward variance for possessing firearm despite protective order. (330)(741) Defendant was convicted of possession of a firearm by a person subject to a protective order. The district court varied upward and imposed a 120-month sentence. The Tenth Circuit affirmed, finding that the district court had not departed from the guideline range; instead, it had varied, and had properly weighed the factors under 18 U.S.C. § 3553(a). The district court properly found that defendant posed a danger to the community. U.S. v. Kaspereit, __ F.3d __ (10th Cir. Apr. 20, 2021) No. 19-6188.
1st Circuit upholds variance one month above average for possession of firearm by felon. (330) Defendant pleaded guilty to possession of a firearm by a felon. His guidelines range was 37 to 46 months, but the district court varied upward to 60 months. Defendant pointed out that the average sentence for possession of a firearm by a felon is 59 months, and argued that the district court erred by varying above that sentence. The First Circuit held that the “modest” variance was warranted by defendant’s criminal history. U.S. v. Ayala-Landos, __ F.3d __ (1st Cir. Apr. 13, 2021) No. 19-1907.
2d Circuit says attempted Hobbs Act robbery is a “crime of violence.” (330) Defendants were convicted of brandishing a firearm during and in relation to a “crime of violence,” in violation of 18 U.S.C. § 924(c). The “crime of violence” was attempted Hobbs Act robbery under 18 U.S.C. § 1951(a). A “crime of violence” is defined as an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another. The Second Circuit held that attempted Hobbs Act robbery is categorically a “crime of violence.” U.S. v. McCoy, __ F.3d __ (2d Cir. Apr. 22, 2021) No. 17-3515.
5th Circuit upholds increase for possessing gun during another felony offense. (330) Defendant pleaded guilty to possession of a firearm by a felon. At sentencing, the court added four levels under § 2K2.1(b)(6)(B) for possessing the firearm in connection with another felony offense. The district court identified the felony offense as possession with intent to distribute methamphetamine based on an accomplice’s possession of 81 grams of methamphetamine and $9,680. The Fifth Circuit affirmed, rejecting defendant’s argument that the panel had to find facts on appeal in order to uphold the district court. U.S. v. Huerta, __ F.3d __ (5th Cir. Apr. 21, 2021) No. 20-50343.
6th Circuit requires “stacking” § 924(c) counts despite resentencing after First Step Act. (330) Defendant received “stacked” sentences for three violations of 18 U.S.C. § 924(c). While the case was on appeal, on December 18, 2018, the First Step Act changed the “stacking” rule in a way that would have reduced his sentence. However, the Act does not apply to defendants for whom “a sentence for the offense” was imposed before December 18, 2018. Three months later, the Sixth Circuit vacated one of defendant’s § 924(c) convictions and remanded for resentencing. On remand, the district court applied the Act to defendant, and reduced his sentence from 57 years to 108 months. The government appealed, and in a 2-1 opinion, the Sixth Circuit reversed, holding that the First Step Act did not apply because “a sentence” had been imposed on the § 924(c) counts before December 18, 2018, and the fact that the sentence had been vacated thereafter did not change that. The majority disagreed with U.S. v. Bethea, 841 F. App’x 544 (4th Cir. 2021), which ruled that a vacated sentence cannot be said to have been legally imposed. U.S. v. Jackson, __ F.3d __ (6th Cir. Apr. 22, 2021) No. 19-3623.
8th Circuit upholds above-guidelines sentence for gun possessor. (330)(741) Defendant pleaded guilty to possession of a firearm by a felon. His guidelines range was 84 to 105 months, but the district court varied upward to 120 months. Defendant argued that the sentence was substantively unreasonable because the district court should have varied downward based on mitigating factors and defendant’s criminal history. The Eighth Circuit noted that the district court agreed that defendant’s criminal history was overrepresented but found that other aggravating factors weighed in favor of a longer sentence. There was no error. U.S. v. Sawatsky, __ F.3d __ (8th Cir. Apr. 16, 2021) No. 19-3172.
8th Circuit affirms reliance on Facebook to find defendant possessed three or more firearms. (330) Defendant was found guilty of possession of a firearm by a felon. At sentencing, the district court added two levels under § 2K2.1(b)(1) because defendant possessed three or more firearms. The district court relied on photos found on defendant’s Facebook page, which showed him with multiple firearms. The Eighth Circuit affirmed, finding no clear error. U.S. v. Wright, __ F.3d __ (8th Cir. Apr. 16, 2021) No. 19-3190.
8th Circuit reverses because short-barreled shotgun was not a “destructive device.” (330) Defendant pleaded guilty to possessing an unregistered short-barreled shotgun. At sentencing, the district court increased the sentence under § 2K2.1(b)(3)(B) because the shotgun was a “destructive device,” under 26 U.S.C. § 5845(f). However, that section applies only to firearms having a barrel more than one-half inch in diameter. The shotgun barrel here was only .410 caliber, which is less than one-half inch. Accordingly, the Eighth Circuit held that defendant did not possess a “destructive device,” and reversed his sentence. U.S. v. Zarate, __ F.3d __ (8th Cir. Apr. 19, 2021) No. 20-1154.
1st Circuit affirms upward criminal history variance for possession of a firearm by a felon. (330)(510) Defendant pleaded guilty to possession of a firearm by a felon. His guidelines range was 33 to 41 months, but the court varied upward to the statutory maximum of 120 months based on his criminal history. Defendant argued that his criminal history was already taken into account by the guidelines and that his sentence was “too long.” The First Circuit rejected the argument, holding that the district court adequately explained why defendant’s criminal history score did not adequately account for seriousness of his prior criminal conduct. The sentence, while long, was “plausible.” U.S. v. Gonzalez, __ F.3d __ (1st Cir. Feb. 18, 2021) No. 18-1607.
8th Circuit says different state laws about carrying firearms did not require downward variance. (330) At sentencing for possession of a firearm by a felon, the district court added four levels under § 2K2.1(b)(6) because defendant possessed a firearm in connection with the felony offense of carrying a firearm in a vehicle, in violation of Iowa Code § 724.4(1). Defendant argued that the court should have varied downward because carrying a firearm in any other state in the Eighth Circuit would have been a misdemeanor. The Eighth Circuit rejected the argument, finding that when officers stopped defendant, the presence of the firearm made the situation they faced more precarious. U.S. v. Halter, __ F.3d __ (8th Cir. Feb. 24, 2021) No. 20-1219.
1st Circuit finds lower sentence for white codefendant was not racially motivated. (240)(330)(741) Defendant pled guilty to drug and firearms offenses. His guidelines range was 147 to 162 months, but the court varied upward to 198 months. Defendant, who is black, argued that his sentence was substantively unreasonable because his white codefendant had received a lesser sentence. The First Circuit held that defendant had presented “no hint” of racial bias and that he was asking the court to infer racial bias. The court found that defendant’s history of violent conduct more than accounted for the difference in sentences. U.S. v. Farmer, __ F.3d __ (1st Cir. Feb. 16, 2021) No. 19-1603.
4th Circuit affirms despite claim that defendant did not know it was illegal to possess firearm. (330)(741) Defendant was found guilty of possession of a firearm by a person who had been adjudicated a mental defective and making a false statement on an ATF form. The guidelines range was 27 to 33 months, but the district court departed upward to 60 months. Defendant argued that the district court failed to consider that he did not know that he could not possess a firearm. The Fourth Circuit affirmed, finding that the district court did consider defendant’s argument and rejected it. U.S. v. Collins, __ F.3d __ (4th Cir. Dec. 3, 2020) No.19-4596.
1st Circuit agrees drug paraphernalia possession was another felony offense, despite lack of findings. (330) Defendant pleaded guilty illegal possession of a machinegun. At sentencing, the district court added four levels under § 2K2.1(b)(6)(B) for possession of a firearm in connection with another felony because the firearm was found near drug-trafficking paraphernalia, including a one-edged blade, a sifter, baking soda, and ziplock baggies. The district court said it was not finding that defendant engaged in drug trafficking, but his possession of drug paraphernalia violated state law. On appeal, the First Circuit acknowledged the lack of specific findings about how the firearm facilitated the offense, but affirmed on the ground that the district court’s identification of a particular state offense was akin to finding that defendant engaged in drug trafficking. U.S. v. Tirado-Nieves, __ F.3d __ (1st Cir. Dec. 3, 2020) No. 18-2053.
4th Circuit says long sentence can be “extraordinary and compelling reason” for compassionate release. (150)(330) The First Step Act of 2018 amended 18 U.S.C. §924(c) to allow “stacking” sentences for a “second or subsequent count” of using or carrying a firearm in relation to a crime of violence only for §924(c) convictions that became final before the present sentencing. However, this section is not retroactive. Defendants, convicted before 2018, moved for compassionate release under 18 U.S.C. § 3582(c)(1)(A) claiming that the length of their “stacked” § 924(c) sentences was an “extraordinary and compelling reason” to reduce their sentences. The district courts granted the motions, and the Fourth Circuit affirmed, holding that no guideline applied because the Commission had not updated § 1B1.13 since the passage of the First Step Act. The court ruled that the severity of a sentence under § 924(c) can be an “extraordinary and compelling reason” for granting a compassionate release motion. U.S. v. McCoy, __ F.3d __ (4th Cir. Dec. 2, 2020) No. 20-6821.
1st Circuit says Hobbs Act robbery and armed bank robbery are “crimes of violence.” (330) Defendant was convicted of Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a), armed bank robbery, in violation of 18 U.S.C. § 2113, and using or carrying a firearm in relation to those “crimes of violence,” in violation of 18 U.S.C. § 924(c). The First Circuit held that both Hobbs Act robbery and armed bank robbery are “crimes of violence” under § 924(c). U.S. v. Hernández-Román, __ F.3d __ (1st Cir. Dec. 1, 2020) No. 18-2133.
7th Circuit says Iowa aggravated assault may be a “crime of violence.” (330) Defendant pleaded guilty to possession of a firearm by a felon. Guideline § 2K2.1(a) requires an increased offense level if defendant has a prior conviction for a “crime of violence” as defined in § 4B1.2. A “crime of violence” is an offense that has “as an element the use, attempted use, or threatened use of physical force against the person of another.” Defendant had a prior conviction under Iowa Code § 708.2(3) for aggravated assault. Applying the modified categorical approach, the Seventh Circuit held that aggravated assault in Iowa may be a “crime of violence.” U.S. v. Smith, __ F.3d __ (7th Cir. Nov. 25, 2020) No. 18-3696.
10th Circuit reverses where assault was not a crime of violence” and occurred more than 10 years earlier. (330) Defendant pled guilty to possessing a firearm by a felon. The guideline for that offense, § 2K2.1(a)(4)(A), sets an enhanced offense level if defendant had a prior conviction for a “crime of violence” as defined in § 4B1.2. The district court enhanced defendant’s offense level because he had a 2005 Colorado conviction for second-degree assault. The Tenth Circuit held that this conviction did not qualify as a “crime of violence” because defendant was not sentenced to imprisonment and it was imposed more than 10 years before defendant’s possession of a firearm. U.S. v. Silva, __ F.3d __ (10th Cir. Nov. 24, 2020) No. 19-1298.
3d Circuit says ban on felons possessing firearms applies to tax offender. (330)(370) Defendant was convicted of tax fraud. She argued that it violated the Second Amendment to apply the ban in 18 U.S.C. § 922(g) barring felons from possessing firearms. The Third Circuit found that § 922(g) applies to all felons, and that, an any event, defendant committed a serious felony that justified the ban on possessing firearms. Folajtar v. Attorney General, __ F.3d __ (3d Cir. Nov. 24, 2020) No. 19-1687.
11th Circuit, in superseding opinion, reaffirms RICO conspiracy is not a “crime of violence.” (330) Defendants were convicted of conspiracy to violate RICO, in violation of 18 U.S.C. § 1962(d), and using or carrying a firearm during and in relation to a “crime of violence,” in violation of 18 U.S.C. § 924(c). “Crime of violence” is defined as an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another. In an amended opinion, the Eleventh Circuit reaffirmed that RICO conspiracy is not a “crime of violence.” U.S. v. Green, __ F.3d __ (11th Cir. Nov. 24, 2020) No. 17-10346 (superseding 969 F.3d 1194 (11th Cir. 2020)).
9th Circuit says Arizona attempted transportation for sale not a “controlled substance offense.” (330) Defendant was convicted of possession of a firearm by a felon. He had a prior conviction for attempted transportation of marijuana for sale under Arizona Revised Statutes § 13-3405(A)(4). The district court found that this was a “controlled substance offense” under § 4B1.2(b) and increased defendant’s offense level under § 2K2.1(a)(4). On appeal, the Ninth Circuit reversed, holding that a the time of sentencing, attempted transportation of marijuana for sale under Arizona law was categorically not a “controlled substance offense” and vacated defendant’s sentence. U.S. v. Bautista, __ F.3d __ (9th Cir. Nov. 23, 2020) No. 19-10448.
5th Circuit, in amended opinion, affirms increase for firearm found near drug cutting agent. (330) Police officers searched defendant’s home and found a firearm in close proximity to a digital scale and mannitol, a laxative used to cut cocaine. Defendant was convicted of drug trafficking and possession of a firearm by a felon, but was acquitted of using a firearm during a drug trafficking offense. At sentencing, the district court added four levels under § 2K2.1(b)(6)(B) because the firearm was in close proximity to drug paraphernalia. On appeal, the Fifth Circuit affirmed, finding that the district court had correctly found that the mannitol was drug paraphernalia and that the firearm was in close proximity to the mannitol. U.S. v. Kendrick, __ F.3d __ (5th Cir. Nov. 3, 2020) No. 19-30375.
10th Circuit affirms upward variance on remand for bomb maker. (197)(330)(741) Defendant built three bombs and pleaded guilty to arson and firearms offenses. He was sentenced to 20 years. Later, he filed a 28 U.S.C. § 2255 motion and successfully invalidated his firearms offenses. On remand, the district court varied upward from the guidelines range of 60 months and sentenced him to 144 months. On appeal, defendant argued that the court (1) gave substantial weight to his invalidated sentence, (2) refused to credit him for assisting the government, (3) sentenced him as if he had intended to maximize injury and death, and (4) failed to consider that no one was injured. The Tenth Circuit found no error, finding that the court addressed defendant’s arguments, and applied the appropriate factors. U.S. v. Lawless, __ F.3d __ (10th Cir. Nov. 2, 2020) No. 20-1173.
8th Circuit upholds increase for possessing gun in connection with another offense. (330) At defendant’s sentencing for possession of a firearm by a felon, the district court added four levels under § 2K2.1(b)(6)(B) for possessing a firearm during another felony offense. Officers found numerous assault rifles outside defendant’s residence and drugs and drug-selling paraphernalia inside. The Eighth Circuit rejected defendant’s argument that the drugs belonged to another man, because the drugs were found in defendant’s residence and defendant had a history of drug trafficking. U.S. v. Crutchfield, __ F.3d __ (8th Cir. Nov. 2, 2020) No. 19-3767.
8th Circuit says California threatening is a “crime of violence.” (330) Under § 2K2.1(a)(2), a defendant who is convicted of possession of a firearm by a felon is subject to an enhanced offense level if defendant has a prior conviction for a “crime of violence.” “Crime of violence” is defined in § 4B1.2 as an offense that has as an element the use, attempted use, or threatened use of physical force against the person of another. Defendant had a prior conviction under California Penal Code § 422(a) for threatening to commit a crime that will result in great bodily injury or death to another person. The Eighth Circuit held that the California offense was a “crime of violence.” U.S. v. Doran, __ F.3d __ (8th Cir. Nov. 2, 2020) No. 19-3222.
8th Circuit says prior conviction was a felony despite later reclassification as misdemeanor. (330) Defendant was convicted of possession of a firearm by a felon. Section 2K2.1(a)(2) requires an increase in offense level if the defendant has a prior conviction for a “controlled substance offense.” Defendant had a prior conviction for possession of marijuana for sale, under Cal. H. & S. Code § 11359. However, in 2016, California reduced § 11359 from a felony to misdemeanor and defendant successfully had his 2015 conviction designated as a misdemeanor. Nevertheless, the Eighth Circuit held that § 11359’s reclassification as a misdemeanor did not change the fact that it was a felony when defendant committed the offense, and ruled that it should be treated as a felony for purposes of § 2K2.1(a)(2). U.S. v. Doran, __ F.3d __ (8th Cir. Nov. 2, 2020) No. 19-3222.
11th Circuit says drug use during possession makes defendant an “unlawful user” of drugs. (330) Under § 2K2.1(a)(4)(B), a defendant convicted of a firearms offense who was a “prohibited person” has an offense level of 20. A “prohibited person” is “an unlawful user of or addicted to any controlled substance.” Defendant was convicted of possessing a sawed-off shotgun and admitted to smoking marijuana daily. Defendant argued that the government had not proved that he used marijuana when he purchased the shotgun. The Eleventh Circuit held that the government must simply show that the defendant was an “unlawful user” of a controlled substance during the same time period as the firearm possession. U.S. v. Wilson, __ F.3d __ (11th Cir. Oct. 27, 2020) No. 18-12379.
1st Circuit finds defendant possessed gun during another felony offense. (330) Defendant pleaded guilty to possessing a machinegun, after he was arrested with the gun and several baggies of drugs. At sentencing, the court enhanced his offense level under § 2K2.1(b)(6) for possession of the firearm during another felony offense. Defendant argued that possession of drugs for personal use does not trigger § 2K2.1(b)(6). The First Circuit rejected the argument, finding that defendant did not possess drugs for personal use, based in part on pictures of drug distribution on defendant’s cell phone. U.S. v. Reyes-Torres, __ F.3d __ (1st Cir. Oct. 27, 2020) No. 18-2170.
1st Circuit upholds within-guidelines sentence for possession of machinegun. (330)(742) Defendant pleaded guilty to possession of a machinegun. His guidelines range was 37 to 46 months, and the district court sentenced him to 42 months. Defendant argued that his sentence was substantively unreasonable because the district court had considered an enhancement that it should not have. The First Circuit found that the district court properly considered the enhancement and that the district court weighed the appropriate factors in applying a guidelines sentence. U.S. v. Reyes-Torres, __ F.3d __ (1st Cir. Oct. 27, 2020) No. 18-2170.
11th Circuit declines to consider issue where court said it would impose same sentence regardless. (330) (850) Defendant was convicted of possessing an unregistered silencer. The undercover officer who sold defendant the silencer falsely told defendant that it would be used to shoot a man who had done some electrical work for the undercover officer’s boss. Based on this, the district court added four levels under § 2K2.1(b)(6)(B) because defendant intended the silencer to be used to shoot the fictional person. Defendant challenged the enhancement, but the Eleventh Circuit found it unnecessary to reach the issue because the district court said that it would give defendant the same sentence regardless. U.S. v. Bolatete, __ F.3d __ (11th Cir. Sept. 29, 2020) No. 18-14184.
11th Circuit affirms upward variance despite defendant’s old age and illness. (330)(741) Defendant was convicted of possessing an unregistered silencer. His guidelines range was 41 to 51 months, but the district court varied upward to 60 months because defendant planned to kill Muslims. Defendant argued that the sentence was substantively unreasonable because the district court was overly concerned with protecting the public and did not consider his age (70) and his failing health (he had multiple ailments, including diabetes). The Eleventh Circuit found that the district court had considered defendant’s age and medical condition and the defendant’s conduct gave the court reason to protect the public. U.S. v. Bolatete, __ F.3d __ (11th Cir. Sept. 29, 2020) No. 18-14184.
5th Circuit finds firearm was possessed in connection with a drug cutting substance. (330) A police raid on defendant’s house produced a loaded firearm, mannitol, and a digital scale. Mannitol is used to cut drugs. In sentencing defendant for possession of a firearm by a felon, the district court enhanced his offense level under § 2K2.1(b)(6)(B) for possessing a firearm during drug trafficking. The Fifth Circuit vacated its earlier decision, but nevertheless affirmed the firearms enhancement because mannitol is usually used to cut drugs. U.S. v. Kendrick, __ F.3d __ (5th Cir. Sept. 14, 2020) No. 19-30375 (vacating 967 F.3d 487).
7th Circuit, en banc, says First Step Act’s reduced §924(c) mandatory minimum applies at resentencing. (330) Defendant was convicted of two counts of using or carrying a firearm during and in relation to a “crime of violence,” in violation of 18 U.S.C. § 924(c). He was initially sentenced in 2013, but the sentence was vacated on appeal. Before resentencing, the First Step Act of 2018 reduced the penalty for a second or successive § 924(c) conviction in the same proceeding. The Seventh Circuit, en banc, held that the earlier sentence was a “nullity,” so defendant had not been sentenced when the First Step Act became effective. Therefore, defendant was entitled to the reduced § 924(c) penalty in the First Step Act. U.S. v. Uriarte, __ F.3d __ (7th Cir. Sept. 15, 2020) (en banc) No. 19-2092.
7th Circuit affirms upward variance despite claim that factors were already considered. (330)(741) Defendant pleaded guilty to possession of a firearm by a felon. His guidelines range was 46 to 57 months but the court varied upward to 84 months, relying on defendant’s threats to witnesses, his two-hour stand-off with police in which he shot into a police car, and his display of a gang sign in a photograph after his arrest. On appeal, the Seventh Circuit affirmed, rejecting defendant’s argument that his sentence was substantively unreasonable because the district court relied on factors that were already taken into account by the guidelines. U.S. v. Moultrie, __ F.3d __ (7th Cir. Sept. 16, 2020) No. 19-2896.
10th Circuit finds that planting bomb created actual risk to discoverer. (330) Defendant placed a bomb outside a police station. Although defendant tried to detonate the bomb, it did not explode. Defendant pleaded guilty to attempted use of a weapon of mass destruction, in violation of 18 U.S.C. § 2332a(a)(2). At sentencing, the district court set defendant’s offense level at 24 under § 2K1.4(a)(1) because defendant knowingly created a substantial risk of death or serious bodily injury to the officer who discovered the bomb. The Tenth Circuit affirmed, agreeing that defendant created a substantial risk to the officer. U.S. v. Ansberry, __ F.3d __ (10th Cir. Sept. 23, 2020) No. 19-1048.
7th Circuit says First Step Act reduction in §924(c) mandatory minimum applies at resentencing. (245) (330) The First Step Act of 2018 narrowed the range of offenses that trigger mandatory minimum sentences under 18 U.S.C. §924(c). Defendant was originally sentenced in 2013, but was resentenced in 2019. Before resentencing, the First Step Act changed his eligibility for a mandatory minimum sentence. The Seventh Circuit held that the First Step Act applied to defendant. U.S. v. Bethany, __ F.3d __ (7th Cir. Sept. 15, 2020) No. 19-1754.
2d Circuit says Hobbs Act extortion is categorically a “crime of violence.” (330) Under 18 U.S.C. § 924(c), a defendant who commits a “crime of violence” and uses or carries a firearm during and in relation to that offense is subject to a mandatory minimum sentence. A “crime of violence” is defined to include an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another. Defendant was convicted of Hobbs Act extortion, in violation of 18 U.S.C. § 1951(a). The Second Circuit held that Hobbs Act extortion is categorically a “crime of violence” under § 924(c). U.S. v. Nikolla, __ F.3d __ (2d Cir. Feb. 19, 2020) No. 17-2206.
4th Circuit says assault on a postal worker is a “crime of violence.” (330) Defendant was convicted of assaulting with intent to rob, steal, or purloin from a postal employee and placing the postal employee’s life in jeopardy by use of a dangerous weapon, in violation of 18 U.S.C. § 2114(a), and for brandishing a firearm during and in relation to that “crime of violence,” in violation of 18 U.S.C. § 924(c). A “crime of violence” is defined in § 924(c) as an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another. The Fourth Circuit held that § 2114(a) is categorically a “crime of violence” under § 924(c). U.S. v. Bryant, __ F.3d __ (4th Cir. Jan. 24, 2020) No. 17-6719.
6th Circuit reverses, finding that defaced serial number was not “altered or obliterated.” (330) Defendant pleaded guilty to possession of a firearm by a felon. The guideline for that offense, § 2K2.1(b)(4)(B), requires a four-level increase if the firearm has an “altered or obliterated serial number.” Here, the firearm had three scratches on the serial numbers, but the numbers were readable. The district court applied the enhancement. The Sixth Circuit reversed, holding that a serial number is “altered or obliterated” when it is materially changed in a way that makes accurate information less accessible. The court held that a serial number that is defaced but still visible to the naked eye is not “altered or obliterated.” U.S. v. Sands, __ F.3d __ (6th Cir. Jan. 24, 2020) No. 17-2420.
6th Circuit says that aiding and abetting a Hobbs Act robbery is a “crime of violence.” (330) Defendant was convicted of aiding and abetting a Hobbs Act robbery, in violation of 18 U.S.C. § 1951, and using or carrying a firearm during a “crime of violence,” in violation of 18 U.S.C. § 924(c). That section defines “crime of violence” as an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another. The Sixth Circuit held that aiding and abetting a Hobbs Act robbery is a “crime of violence.” U.S. v. Richardson, __ F.3d __ (6th Cir. Jan. 27, 2020) No. 17-2157.
6th Circuit finds First Step Act inapplicable to §924(c) sentence imposed before its enactment. (330) The First Step Act amended 18 U.S.C. § 924(c) to eliminate the increase for multiple firearm enhancements in the same case, and to require an increase only for prior firearm convictions. Here, defendant had been convicted of five counts of § 924(c) in the same case, so instead of the 107-year sentence that he received, his First Step Act sentence would have been only 35 years. The Sixth Circuit held that defendant was ineligible for relief under the First Step Act because he was sentenced before the Act was enacted. U.S. v. Richardson, __ F.3d __ (6th Cir. Jan. 27, 2020) No. 17-2157.
3d Circuit says First Step Act did not apply where resentencing did not affect §924(c) counts. (330) In 2014, defendant was convicted of two counts of using or carrying a firearm during a “crime of violence,” in violation of 18 U.S.C. § 924(c), as well as violations of Virgin Islands law. The Third Circuit remanded for resentencing on the Virgin Islands convictions. While the remand was pending, Congress passed the First Step Act, which lowered the mandatory minimum sentences for multiple § 924(c) counts. The district court denied his request, and Third Circuit agreed, holding that the First Step Act applies only if a sentence has not been imposed for a § 924(c) violation. Here, § 924(c) sentences had already been imposed when defendant was resentenced on the Virgin Islands offenses. U.S. v. Hodge, __ F.3d __ (3d Cir. Jan. 17, 2020) No. 19-1930.
6th Circuit says federal assault with a dangerous weapon is a “crime of violence.” (330) Defendant pleaded guilty to assault with a dangerous weapon in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(3), and using a firearm during that “crime of violence,” in violation of 18 U.S.C. § 924(c). A “crime of violence” is defined in 18 U.S.C. § 924(c)(3)(A) as an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another. The Sixth Circuit held that § 1959(a)(3) categorically defines a “crime of violence.” Manners v. U.S., __ F.3d __ (6th Cir. Jan. 13, 2020) No 17-1171.
10th Circuit affirms above-guidelines sentence for defendant’s readiness to use firearm. (330)(741) Defendant pleaded guilty to possession of a firearm by a felon. His guidelines range was 46 to 57 months. At sentencing, the district court varied upward to 96 months, citing the need to protect the public, defendant’s criminal history, and defendant’s readiness to use the firearm he was convicted of possessing. On appeal, defendant argued that the sentence was substantively unreasonable because the district court relied too heavily on his criminal history and his sentence was disparate to other sentences that defendants convicted of the same offense have received. The Tenth Circuit held that the sentence was not substantively unreasonable. U.S. Garcia, __ F.3d __ (10th Cir. Jan. 7, 2020) No. 18-6033.
10th Circuit finds prior handgun possession was relevant conduct for firearms possession. (170)(330) Defendant pleaded guilty to possession of a firearm by a felon after officers found a loaded rifle in his house. One year earlier, officers had found two handguns on defendant’s person. At sentencing, the district court found that the earlier handguns were relevant conduct to the present conviction for possessing the rifle, and added two levels under § 2K2.1(b)(1)(A) for three or more weapons. On appeal, the Tenth Circuit affirmed, holding that the prior handguns were relevant conduct under § 1B1.3. U.S. Garcia, __ F.3d __ (10th Cir. Jan. 7, 2020) No. 18-6033.
9th Circuit says armed robbery involving controlled substances is a “crime of violence.” (330) Defendant pleaded guilty to armed robbery involving controlled substances, in violation of 18 U.S.C. § 2118(c)(1), and possessing a firearm in furtherance of a “crime of violence, in violation of 18 U.S.C. § 924(c). A “crime of violence” is defined to mean any felony that has as an element the use, attempted use, or threatened use of physical force against the person or property of another The Ninth Circuit held that armed robbery involving a controlled substance is a “crime of violence” as § 924(c) defines that term. U.S. v. Burke, __ F.3d __ (9th Cir. Dec. 2, 2019) No. 17-35446.
9th Circuit says assault with a dangerous weapon is a “crime of violence.” (330) Defendant was charged with assault with a dangerous weapon, in violation of 18 U.S.C. § 113(a)(3), and discharging a firearm during a “crime of violence,” in violation of 18 U.S.C. § 924(c). He pleaded guilty to discharging a firearm during a “crime of violence.” A “crime of violence” is defined as any felony that has as an element the use, attempted use, or threatened use of physical force against the person or property of another. The Ninth Circuit held that assault with a dangerous weapon is a “crime of violence” under § 924(c). U.S. v. Gobert. __ F.3d __ (9th Cir. Nov. 26, 2019) No. 17-35970.
11th Circuit says conspiracy to commit Hobbs Act robbery is not a “crime of violence.” (290)(330)(520) Defendant pleaded guilty to conspiracy to commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a), and using or carrying a firearm during and in relation to a “crime of violence,” in violation of 18 U.S.C. § 924(c). The “crime of violence” was the conspiracy to commit Hobbs Act robbery. The Eleventh Circuit held that conspiracy to commit Hobbs Act robbery is not a “crime of violence” after the Supreme Court’s decision in U.S. v. Davis, 139 U.S. 2319 (2019), which held that the “residual clause” definition of “crime of violence” in § 924(c)(3)(B) is unconstitutionally vague. Brown v. U.S., __ F.3d __ (11th Cir. Nov. 12, 2019) No. 17-13993.
3d Circuit finds firearm was stolen even though police no longer considered it stolen. (330) Defendant was convicted of possession of a firearm by a felon. At sentencing, the district court enhanced defendant’s offense level under § 2K2.1(b)(4) because the firearm had been stolen about 20 years’ earlier. The firearm had been stolen in another city, but the police department in that city had been unable to find the victim and no longer considered the firearm stolen. The Third Circuit held that the “mere change in designation” by the police department in the other city did not change the fact that the firearm had been reported stolen. U.S. v. Gray, __ F.3d __ (3d Cir. Nov. 8, 2019) No. 18-3663.
7th Circuit vacates sentence for inadequate discussion of rehabilitation claim. (330)(740) Defendant pleaded guilty to possession of a firearm by a felon. On appeal, the Seventh Circuit vacated his sentence because the district court had not explained an enhancement. On remand, the district court found the guidelines range was 70 to 87 months, but sentenced him to the same 84-month sentence, despite defendant’s efforts to rehabilitate himself in prison. The Seventh Circuit vacated the sentence for failure to make findings sufficient for meaningful appellate review. The district court failed to adequately address defendant’s “extensive presentation of his efforts at self-rehabilitation.” U.S. v. Shoffner, __ F.3d __ (7th Cir. Nov. 8, 2019) No. 18-3448.
1st Circuit affirms upward variance where defendant “squandered” earlier opportunities to be law-abiding. (330)(741) Defendant pleaded guilty to possession of a firearm by a felon. His guidelines range was 15 to 21 months. The district court sentenced him to 36 months because, according to the district court, defendant had “squandered” three opportunities to live in a law-abiding manner. Defendant had a prior conviction for drug possession, and a robbery charge had been dismissed when defendant completed a drug diversion program. The First Circuit affirmed, finding defendant’s 36-month sentence was substantively reasonable and the district court had had significant reasons for varying upward. U.S. v. Miranda-Díaz, __ F.3d __ (1st Cir. Nov. 5, 2019) No. 18-1761.
1st Circuit upholds substantial upward variance where defendant participated in murder. (330)(741) At defendant’s sentencing for firearms offenses, the district court found that the firearms had been used in a murder and varied upward from a range of 46 to 57 months to the statutory maximum of 120 months. The First Circuit found that there was sufficient evidence for the district court to find by a preponderance that defendant had participated in the murder, and this was a proper factor to consider in varying upward. U.S. v. Tanco-Baez, __ F.3d __ (1st Cir. Nov. 4, 2019) No. 16-1322.
10th Circuit finds defendant waived challenge to cross-reference in firearms guideline. (330)(855) Defendant was convicted of possession of a firearm by a felon based on his trading two firearms for methamphetamine. At sentencing, the district court applied the cross-reference in § 2K2.1(c)(1)(A) to calculate defendant’s sentence based on drug guideline. Defendant initially argued that the evidence supporting the cross-reference was not reliable, but later told the district court that the evidence was reliable. On appeal, the Tenth Circuit held that defendant had waived any objection to the cross-reference. U.S. v. Carter, __ F.3d __ (10th Cir. Oct. 28, 2019) No. 18-8069.
10th Circuit upholds below-guidelines sentence despite claim that parties did not contemplate it. (330) (741) Defendant pleaded guilty to possession of a firearm by a felon. His guidelines range was 100 to 125 months, and he was sentenced to 84 months. Defendant argued that this sentence was substantively unreasonable because the district court used a cross-reference to calculate the offense level that the parties did not consider. The Tenth Circuit found the sentence to be presumptively reasonable because it was below the guidelines range and that it was substantively reasonable because it was within the range requested by the defendant. U.S. v. Carter, __ F.3d __ (10th Cir. Oct. 28, 2019) No. 18-8069.
11th Circuit upholds finding that firearm had been near to large-capacity magazine. (330) Defendant was convicted of possession of a firearm by a felon. At sentencing, the district court increased defendant’s offense level under § 2K2.1(a)(l) because his offense involved a semiautomatic firearm capable of accepting a large-capacity magazine. The commentary to the guidelines requires that a magazine capable of accepting 15 rounds must be attached to the firearm or be nearby. In defendant’s case, the firearm was found outside defendant’s residence and the large-capacity magazine was found inside his residence in a drawer. The Eleventh Circuit upheld the district court’s increase in offense level because there was evidence that defendant’s brother removed the firearm from defendant’s residence shortly before it was found. U.S. v. Ochoa, __ F.3d __ (11th Cir. Oct. 25, 2019) No. 16-17609.
5th Circuit says conspiring to escape is not a “crime of violence.” (330) Defendant was convicted of conspiracy to escape from federal custody and using or carrying a firearm during and in relation to a “crime of violence,” in violation of 18 U.S.C. § 924(c). In U.S. v. Davis, 139 S.Ct. 2319 (2019), the Supreme Court held that the “residual clause” of § 924(c) was unconstitutionally vague. Defendant filed a motion under 28 U.S.C. § 2255 arguing that after Davis he had not been convicted of a “crime of violence.” The Fifth Circuit agreed that conspiracy to escape from federal custody does not have as an element the use, attempted use, or threatened use of physical force against the person or property of another and therefore it was not a “crime of violence.” U.S. v. Robinson, __ F.3d __ (5th Cir. Oct. 24, 2019) No. 18-40678.
11th Circuit reiterates that carjacking is a “crime of violence.” (330) Defendant was convicted of carjacking, in violation of 18 U.S.C. § 2119, and using or carrying a firearm during and in relation of a “crime of violence,” in violation of 18 U.S.C. § 924(c)(1)(A). He argued that carjacking is not a “crime of violence after U.S. v. Davis, 139 S.Ct. 2319 (2019), which held the residual clause of § 924(c)(3)(B) unconstitutionally vague. Applying prior precedent, the Eleventh Circuit held that even after Davis, carjacking remains a “crime of violence.” Steiner v. U.S., __ F.3d __ (11th Cir. Oct. 16, 2019) No. 17-15555.
11th Circuit finds 437-month sentence for armed bank robberies was reasonable. (224)(330)(742) Defendant was found guilty of two counts of bank robbery, two counts of brandishing a firearm during and in relation to a crime of violence, and one count of possession of a firearm by a felon. He received the mandatory minimum 384 months on the two counts of brandishing a firearm during a crime of violence and 63 months on the other three counts, for a total of 437 months. On appeal, he argued that 384 months was a sufficient sentence and that he should not have received 63 months more because he would be 57 when he finished the 384-month sentence and additional time was not necessary to protect the public. The Eleventh Circuit found that the district court had considered all applicable factors and held that the sentence was not substantively unreasonable. U.S. v. Pearson, __ F.3d __ (11th Cir. Oct 15, 2019) No. 17-14619.
11th Circuit reverses increase based on mere proximity of firearm to drug possessed. (330) Defendant was stopped in a car in possession of a firearm, three syringes and one hydromorphone pill. At sentencing for possession of a firearm by a felon, the district court added four levels under § 2K2.1(b)(6)(B) for possessing the firearm in connection with the three syringes and one hydromorphone pill. The Eleventh Circuit reversed, finding that the mere proximity of drugs possessed for personal use could not support an increase under § 2K2.1(b)(6)(B). However, the panel said the district court could consider on remand whether the firearm facilitated defendant’s drug possession. U.S. v. Bishop, __ F.3d __ (11th Cir. Oct. 11, 2019) No. 17-15473.
11th Circuit says Florida delivery of drugs is a “controlled substance offense.” (330) Under § 2K2.1(a)(3), a defendant convicted of possession of a firearm by a felon and who possessed a firearm capable of accepting large capacity magazines is subject to an increased sentence if he has a prior conviction for a “controlled substance offense.” Here, defendant had a prior conviction under Florida Stat. § 893.13(1)(a) for delivery of a controlled substance. Relying on precedent, the Eleventh Circuit held that the Florida statute defined a “controlled substance offense.” U.S. v. Bishop, __ F.3d __ (11th Cir. Oct. 11, 2019) No. 17-15473.
10th Circuit says distribution of imitation drugs is a “controlled substance offense.” (330) The guideline for possession of a firearm by a felon, § 2K2.1(a)(1), provides for an increased offense level if defendant has a prior conviction for a “controlled substance offense.” That term is defined to include an offense that prohibits “the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.” Defendant had a prior conviction under Colorado Revised Stat. § 18-18-420(3) for distributing an imitation controlled substance. The Tenth Circuit held that the distribution of imitation substances was a “controlled substance offense” under the guidelines. U.S. v. Thomas, __ F.3d __ (10th Cir. Oct. 1, 2019) No. 17-1405.
7th Circuit says categorical approach does apply to upward variance based on prior conviction. (330) (520)(740) Defendant pleaded guilty to possession of a firearm by a felon. The guideline for that offense, § 2K2.1(a), increases the offense level if the defendant had a prior conviction for a “crime of violence.” Here, defendant’s prior conviction for burglary did not qualify as a “crime of violence” under the current guidelines, but the commentary to the guidelines stated that the violence of a prior burglary may justify an upward departure. Relying on testimony at sentencing about defendant’s prior burglary conviction, the district court varied upward from the guidelines range of 51 to 63 months, and sentenced defendant to 100 months. The Seventh Circuit upheld the sentence, finding that a district court should not apply the categorical approach in deciding whether to vary upward based on a prior conviction. U.S. v. Gardner, __ F.3d __ (7th Cir. Sept. 30, 2019) No. 18-1731.
7th Circuit says argument not made at sentencing was waived. (330)(855) When defendant was in jail for possession of a firearm by a felon, a psychologist diagnosed him with depression and borderline personality disorder traits. Defendant pleaded guilty and did not raise his mental health as a basis for a lower sentence at sentencing. At sentencing, the district court asked defense counsel if the district court had addressed all of his principal arguments, and counsel replied affirmatively. On appeal, the Seventh Circuit found that defendant had waived any procedural challenge to his sentence based on his mental health. U.S. v. Gardner, __ F.3d __ (7th Cir. Sept. 30, 2019) No. 18-1731.
6th Circuit reverses where gun possessed four months earlier was not “relevant conduct.” (175)(330) Defendant was found with two firearms and was convicted of possessing firearms while a regular drug user, in violation of 18 U.S.C. § 922(g)(3). At sentencing, the district court added two levels under § 2K2.1(b)(1)(A) for possessing of three to seven firearms. For the third firearm, the district court relied on a gun that had been found in a room that defendant occupied four months earlier and found that it was relevant conduct to his offense. The Sixth Circuit reversed, holding that the firearm was not relevant conduct because the circumstances of its possession were not relevant to the offense of conviction. U.S. v. Bowens, __ F.3d __ (6th Cir. Sept. 12, 2019) No. 18-5646.
5th Circuit finds Davis “crime of violence” decision is a “new rule” that applies retroactively. (330)(880) Under 18 U.S.C. § 924(c), it is a crime to carry a firearm in relation to a “crime of violence.” In U.S. v. Davis, 139 S.Ct. 2319 (2019), the Supreme Court struck down the “residual clause” of the definition of “crime of violence” in § 924(c)(3)(B) as unconstitutionally vague. Relying on Davis, defendant filed a 28 U.S.C. § 2255 motion arguing that his prior convictions no longer qualified as “crimes of violence.” The Fifth Circuit held that Davis announced a “new rule” that applied retroactively to defendant’s final conviction, and remanded for resentencing. U.S. v. Reece, __ F.3d __ (5th Cir. Sept. 9, 2019) No. 17-11078.
5th Circuit says conspiracy to commit bank robbery is not a “crime of violence.” (330) Defendant was convicted of conspiracy to commit bank robbery, in violation of 18 U.S.C. § 371, and using or carrying a firearm during and in relation to a “crime of violence,” in violation of 18 U.S.C. § 924(c). The “crime of violence” consisted of the conspiracy to commit bank robbery. In U.S. v. Davis, 139 S.Ct. 2319 (2019), the Supreme Court held the “residual clause” definition of “crime of violence” in § 924(c)(3)(B) was unconstitutionally vague. Thus, the offense must be a “crime of violence” under the “force” or “elements” clause of § 924(c)(3)(B), i.e., it must have “as an element the use, attempted use, or threatened use of physical force against the person or property of another.” The Fifth Circuit held that conspiracy to commit bank robbery is categorically not a “crime of violence” under the “force” or “elements” clause. U.S. v. Reece, __ F.3d __ (5th Cir. Sept. 9, 2019) No. 17-11078.
10th Circuit finds motion challenging conviction under 18 U.S.C. § 924(c) timely. (330)(880) In 2007, defendant was convicted of witness retaliation, in violation of 18 U.S.C. § 1513(b)(2), and brandishing a firearm during and in relation to a “crime of violence,” in violation of 18 U.S.C § 924(c). In U.S. v. Davis, 139 S.Ct. 2319 (2019), the Supreme Court held the residual clause definition of “crime of violence” in § 924(c)(3)(B) was unconstitutionally vague. Defendant filed a motion under 28 U.S.C. § 2255 arguing that his witness retaliation claim was no longer a “crime of violence” after Davis and that he was actually innocent of the § 924(c) violation. The Tenth Circuit held that the rule in Davis is a new constitutional rule that is retroactive on collateral review and that therefore that defendant’s § 2255 motion was timely. U.S. v. Bowen, __ F.3d __ (10th Cir. Sept. 3, 2019) No. 17-1011.
10th Circuit says federal witness retaliation is not a “crime of violence.” (330) Defendant was convicted of witness retaliation, in violation of 18 U.S.C. §1512(b)(2), and brandishing a firearm during and in relation to a “crime of violence,” in violation of 18 U.S.C § 924(c). Although U.S. v. Davis, 139 S.Ct. 2319 (2019), struck down the “residual clause” definition of “crime of violence” in § 924(c)(3)(B) as unconstitutionally vague, the “force” clause remains effective. That clause defines a “crime of violence” as an offense that has “as an element the use, attempted use, or threatened use of physical force against the person or property of another.” Nevertheless, the Tenth Circuit held that witness retaliation is categorically not a “crime of violence” under the “force” clause of § 924(c). U.S. v. Bowen, __ F.3d __ (10th Cir. Sept. 3, 2019) No. 17-1011.
2d Circuit says conspiracy to commit Hobbs Act robbery is not a “crime of violence.” (330) A defendant who uses or carries a firearm during and in relation to a “crime of violence” commits a federal offense under 18 U.S.C. § 924(c). In U.S. v. Davis, 139 S.Ct. 2319 (2019), the Supreme Court held the “residual clause” definition of “crime of violence” in § 924(c)(3)(B) was unconstitutionally vague. Defendant was convicted of violating § 924(c) based on his commission of conspiracy to commit a Hobbs Act robbery. The Second Circuit reversed, holding that conspiracy to commit a Hobbs Act robbery is categorically not a “crime of violence” after Davis. U.S. v. Barrett, __ F.3d __ (2d Cir. Aug. 30, 2019) No. 14-2641.
7th Circuit says traveling interstate to commit a crime of violence was a “crime of violence.” (330) Defendant was convicted of traveling in interstate commerce with intent to commit a crime of violence and then committing or attempting to commit that crime of violence, in violation of 18 U.S.C. § 1952(a)(2), and with carrying a firearm in violation of 18 U.S.C. § 924(c). The crime of violence was a robbery, in violation of 18 U.S.C. § 1951. Although U.S. v. Davis, 139 S.Ct. 2319 (2019), struck down the “residual clause” definition of “crime of violence” in § 924(c)(3)(B) as unconstitutionally vague, the “force” clause remains in effect. The Seventh Circuit used the modified categorical approach to find that § 1952(a)(2) was divisible and that defendant had committed a “crime of violence” under the “force” clause of § 924(c). Haynes v. U.S., __ F.3d __ (7th Cir. __ F.3d __ (7th Cir. Aug. 29, 2019) No. 17-3657.
2d Circuit remands to allow court to consider effect of mandatory minimum after Dean. (330) Defendant was found guilty of two counts of robbery and two counts of using or carrying a firearm during and in relation to a “crime of violence,” in violation of 18 U.S.C. § 924(c). At sentencing, defendant argued that the court should impose a lenient sentence on the robbery counts because of the mandatory minimum sentence on the § 924(c) counts. The district court did not say whether it had considered the mandatory minimum in sentencing defendant on the robbery counts. Nevertheless, the Second Circuit noted that Dean v. U.S., 137 S.Ct. 1170 (2017), had abrogated prior Second Circuit precedent holding that a court could not consider the severity of a mandatory minimum in sentencing on other counts of conviction, and remanded to allow the district court to consider a more lenient sentence on the robbery counts. U.S. v. Brown, __ F.3d __ (2d Cir. Aug. 16, 2019) No. 18-434.
2d Circuit says firearm sold in drug deal is used in connection with drug deal. (330) Defendant offered to sell a firearm and heroin to a confidential informant. He pleaded guilty to possession of heroin with intent to distribute and possession of a firearm by a felon. At sentencing, the district court increased the offense level on the possession count by four under § 2K2.1(b)(6)(B) because defendant had used or possessed the firearm in connection with another felony. The Second Circuit affirmed, rejecting defendant’s argument that the firearm was not used to help sell the heroin. U.S. v. Ryan, __ F.3d __ (2d Cir. Aug. 16, 2019) No. 17-3919.
4th Circuit finds federal crack conspiracy is not a “controlled substance offense.” (330)(520) A defendant convicted of possession of a firearm by a felon is subject to an enhanced offense level under § 2K2.1(a)(4) if he has a prior conviction for a “controlled substance offense,” which includes conspiracy. Defendant had a prior federal conviction for conspiracy to possess crack with intent to distribute. The Fourth Circuit held that because federal conspiracy does not require proof of an overt act, it is not a “controlled substance offense” as the guidelines use that term. However, the court declined to vacate defendant’s sentence because he had not shown “plain error.” U.S. v. Norman, __ F.3d __ (4th Cir. Aug. 15, 2019) No. 18-4214.
5th Circuit says RICO conspiracy is not a “crime of violence” under § 924(c). (330)(520) Defendants were convicted of using or carrying a firearm in relation to a “crime of violence” or a drug-trafficking crime, in violation of 18 U.S.C. § 924(c). The “crime of violence” was RICO conspiracy, which, the government conceded, is not a “crime of violence” under the “elements” clause of § 924(c)(3)(A). Moreover, Davis v. U.S., 139 S.Ct. 2319 (2019) held that the “residual” clause of § 924(c)(3)(B) was unconstitutionally vague. Accordingly, the Fifth Circuit found that the jury may have relied on an invalid predicate and remanded the case to the district court. U.S. v. Jones, __ F.3d __ (5th Cir. Aug. 12, 2019) No. 18-30256.
6th Circuit finds Ohio complicity to commit aggravated robbery is a “crime of violence.” (330) The guideline for possession of a firearm by a felon, § 2K2.1(a)(2), sets an enhanced offense level if the defendant has a prior conviction for a “crime of violence.” The term “crime of violence” is defined in part to include an offense that has as an element the use, attempted use, or threatened use of physical force against the person of another. Defendant had a prior conviction under Ohio Rev. Stat. §§ 2911.01(A)(1) and 2923.03(A)(2) for complicity to commit aggravated robbery. Because defendant had to commit aggravated robbery to commit this offense, the Sixth Circuit held that it was categorically a “crime of violence.” U.S. v. Johnson. __ F.3d __ (6th Cir. Aug. 5, 2019) No. 18-3002.
6th Circuit says Ohio robbery is “crime of violence.” (330) Under § 2K2.1(a)(2), a defendant convicted of possession of a firearm by a felon receives an enhanced offense level if he has at least two prior convictions for a “crime of violence.” That term is defined in part to mean an offense that has as an element the use, attempted use, or threatened use of physical force against the person of another. Here, defendant had a prior conviction under Ohio Rev. Code § 2911.02(A)(2) for robbery. The Sixth Circuit held the Ohio offense is categorically a “crime of violence.” U.S. v. Johnson. __ F.3d __ (6th Cir. Aug. 5, 2019) No. 18-3002.
6th Circuit affirms despite data showing judge had high upward variance rate. (330)(741) Defendant pleaded guilty to possession of a firearm by a felon. His guidelines range was 37 to 46 months, but the district court varied up to 60 months, the statutory maximum. Defendant argued that the district court speculated by talking about the prevalence of gun violence in defendant’s hometown, Cleveland, and emphasizing that the state courts had been lenient in sentencing defendant for his four prior gun convictions. The Sixth Circuit found that the district court had not speculated because the court rested the sentence on defendant’s carrying a firearm and the fact that his prior state sentences did not deter him. The court rejected data showing that this district judge varied upward from the guidelines more often than other judges in the district. U.S. v. Johnson, __ F.3d __ (6th Cir. 2019) No. 18-3720.
7th Circuit says federal kidnapping is not a “crime of violence.” (330)(520) Under 18 U.S.C. § 924(c), a defendant convicted of a “crime of violence” is subject to a mandatory minimum sentence. A “crime of violence” is defined as an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another. The Seventh Circuit held that kidnapping, in violation of 18 U.S.C. § 1201(a), is categorically not a “crime of violence.” U.S. v. Brazier, __ F.3d __ (7th Cir. Aug. 12, 2019) No, 16-4258.
8th Circuit upholds below-guidelines sentence despite claim that criminal history was over-emphasized. (330)(741) Defendant pleaded guilty to possession of a firearm by a felon. His guidelines range was 70 to 87 months, but the district court varied downward to 63 months. Defendant argued that the district court placed excessive weight on his criminal history. The Eighth Circuit upheld the sentence, noting that the court found that defendant’s criminal history was “extremely serious,” consisting of seven prior offenses, at least two of which were violent, and that defendant was highly likely to recidivate and pose a danger to the community. U.S. v. Davis, __ F.3d __ (8th Cir. Aug.6, 2019) No. 18-2204.
8th Circuit finds firearm was possessed in connection with marijuana dealing. (330) A confidential informant bought 2.5 grams of marijuana from defendant. Two days later, police arrested defendant in possession of a handgun, 13.7 grams of marijuana, and $1,300 in cash. Police found another 7.35 grams of marijuana in defendant’s car. Defendant pleaded guilty to possession of a firearm by a felon. At sentencing, an expert testified that marijuana was often sold in gram or half-gram quantities. The district court increased the sentence under § 2K2.1(b)(6) for possession of a firearm in connection with another felony. On appeal, the Eighth Circuit affirmed, ruling that defendant possessed the gun in connection with marijuana dealing. U.S. v. Davidson, _ F.3d __ (8th Cir. Aug. 9, 2019) No. 18-2525.
8th Circuit affirms despite split over whether federal drug conspiracy is “controlled substance offense.” (330)(520) Defendant pleaded guilty to possession of a firearm by a felon. Guideline section 2K2.1(a)(4)(A) requires an enhanced offense level if defendant has a prior conviction for a “controlled substance offense,” which includes conspiracy. The district court found that defendant’s prior conviction under federal law for conspiracy to possess with intent to distribute 50 grams or more of cocaine was a “controlled substance offense.” For the first time on appeal, defendant argued that the federal offense was not a controlled substance offense because it does not require an overt act. Reviewing for plain error, the Eighth Circuit ruled that because there is a split in the circuits on this question, any error was not “plain.” U.S. v. Merritt, __ F.3d __ (8th Cir. Aug. 16, 2019) No. 18-2500.
9th Circuit says “controlled substance offense” includes solicitation and offers. (330) The guideline for felon in possession of a firearm, § 2K2.1(a)(4)(A), sets a higher offense level if defendant has been previously convicted of a “controlled substance offense.” That term is defined in part as a state offense that prohibits the distribution of a controlled substance. Defendant had a prior conviction under Oregon Revised Statutes § 475.890 for delivery of methamphetamine. The Ninth Circuit found that the fact that the Oregon offense reaches solicitation to deliver or an offer to sell methamphetamine does not prevent it from being a “controlled substance offense.” U.S. v. Crum, __ F.3d __ (9th Cir. Aug. 16, 2019) No. 17-30261.
8th Circuit finds no unwarranted disparity in 60-year sentence for child exploitation. (330)(742) Defendant pleaded guilty to two counts of attempted sexual exploitation of a minor. His guidelines range was life imprisonment. The district court imposed two consecutive sentences at the statutory maximum of 30 years on defendant. On appeal, defendant argued that his 60-year sentence was substantively unreasonable because it created a disparity with other sexual exploitation cases. The Eighth Circuit held that the sentence was substantively reasonable and that the district court had considered disparity when imposing the sentence. U.S. v. Williams, __ F.3d __ (8th Cir. Aug. 16, 2019) No. 18-2422.
8th Circuit says Missouri second-degree robbery is a “crime of violence.” (330) The guideline for possession of a firearm by a felon, § 2K2.1, sets an increased offense level if defendant has a prior conviction for a “crime of violence.” A “crime of violence” is defined in § 4B1.2 as an offense that has as an element the use, attempted use, or threatened use of physical force against the person of another. Defendant had a prior conviction under Missouri Rev. Stat. § 569.030.1 for second-degree robbery. The Eighth Circuit held that the Missouri offense was categorically a “crime of violence.” U.S. v. Parker, __ F.3d __ (8th Cir. July 9, 2019) No. 17-3732.
7th Circuit upholds basing firearms sentence on white supremacist beliefs. (120)(330)(770) Defendant pleaded guilty to possession of a firearm by a felon. In a pre-sentence interview, defendant repeatedly stated that he believed in white supremacy and that he wished to go to Germany to “embrace his Nazi heritage.” The district court found his guidelines range was 51 to 63 months, and sentenced him to 48 months. The court noted that defendant had amassed 17 criminal convictions since he was 18 and that “a person holding [white supremacist views] has so little respect for the law.” The court also found that defendant’s white supremacist beliefs were evidence of his continued dangerousness. The Seventh Circuit found that although a person may not be punished solely for holding reprehensible idea, those ideas, when combined with a person’s history and character traits, can be relevant to sentencing. U.S. v. Schmidt, __ F.3d __ (7th Cir. July 17, 2019) No. 18-1259.
8th Circuit reverses itself after Stokeling, and finds Arkansas robbery is a “crime of violence.” (330)(520) The guideline for possession of a firearm by a felon, § 2K2.1(a)(1), requires an enhanced offense level if the defendant has a prior conviction for a “crime of violence,” i.e., an offense that has “as an element the use, attempted use, or threatened use of physical force against the person of another.” Defendant had a prior conviction under Arkansas Code Ann. § 5-12-102 for aggravated robbery. Although the Eighth Circuit had previously held that Arkansas aggravated robbery does not require a use of force that would satisfy the statutory standard, the court held that Stokeling v. U.S., 139 S.Ct. 544 (2019), had “abrogated” the Eighth Circuit’s force analysis and that Arkansas aggravated robbery is categorically a “crime of violence.” U.S. v. Smith, __ F.3d __ (8th Cir. June 27, 2019) No. 17-3760.
8th Circuit says armed robbery of controlled substances is a “crime of violence.” (330) Defendant pleaded guilty to using a firearm in furtherance of the “crime of violence” of aiding and abetting the armed robbery of controlled substances in violation of 18 U.S.C. § 2118. He argued that aiding and abetting armed robbery of controlled substances is not a “crime of violence” because it can be committed by intimidation. The term “crime of violence” is defined by 18 U.S.C. § 924(c)(3)(A) as an offense that has as an element the use, attempted us, or threatened use of physical force against the person of another. The Eighth Circuit held that intimidation is the threat of force and the offense of armed robbery of controlled substances is categorically a “crime of violence.” Kidd v. U.S., __ F.3d __ (8th Cir. July 3, 2019) No. 18-2465.
Supreme Court holds “residual clause” of § 924(c) is unconstitutionally vague. (330) A defendant who commits a “crime of violence” is subject to enhanced penalties under 18 U.S.C. § 924(c), if he possesses a firearm during that offense. The statute defines “crime of violence” in two ways: a felony that “has as an element the use, attempted use, or threatened use of physical force against the person or property of another” or “that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” In keeping with Johnson v. U.S., 135 S.Ct. 2551 (2015), the Supreme Court held the latter, “residual,” clause was unconstitutionally vague. The Court rejected the government’s argument that § 924(c) requires a case-specific approach that would look at defendant’s conduct in the underlying “crime of violence.” Justice Gorsuch wrote the opinion; Justice Kavanaugh wrote a dissent, joined by Justices Thomas and Alito and joined in part by the Chief Justice. Davis v. U.S., 139 S.Ct. __, 588 U.S. __ (June 24, 2019).
1st Circuit upholds firearms variance against multiple claims of error. (330)(741) Defendant pleaded guilty to being a felon in possession of a firearm. His guidelines range was 33 to 41 months, but the district court varied upward to 60 months, relying on the fact that defendant had pleaded guilty to possessing a machinegun, and the factors set forth in 18 U.S.C. § 3553(a). The First Circuit upheld the sentence against defendant’s arguments that the district court had not considered his early acceptance of responsibility, his “tumultuous family life,” and the fact that his crime was victimless. U.S. v. Méndez-Báez, __ F.3d __ (1st Cir. June 17, 2019) No. 18-1732.
5th Circuit finds removing one of two serial numbers sufficient for gun increase. (330) Defendant pleaded guilty to being a felon in possession of a firearm. The district court applied a four-level increase under § 2K2.1(b)(4) for a firearm with an altered or obliterated serial number. Defendant’s firearm had an obliterated serial number on its frame but a legible serial number on its slide. On appeal, the Fifth Circuit affirmed, holding that only one serial number need be altered or obliterated, even if others are clearly legible. U.S. v. Jones, __ F.3d __ (5th Cir June 21, 2019) No. 18-10590.
8th Circuit finds Minnesota aggravated robbery is a “crime of violence.” (330) The guideline for felon in possession of a firearm, § 2K2.1(a)(4), provides an increase if defendant has a prior conviction for a “crime of violence.” A “crime of violence” is defined to mean an offense that has as an element the use, attempted use, or threatened use of physical force against the person of another. Defendant had a prior conviction under Minnesota Statues § 609.245 for first-degree aggravated robbery. The Eighth Circuit held that this is categorically a “crime of violence.” U.S. v. Robinson, __ F.3d __ (8th Cir. June 10, 2019) No. 18-1420.
8th Circuit allows sentence based on “propensity” to use firearms in criminal activity. (330) Defendant pleaded guilty to making a false statement to a firearms dealer, in violation of 18 U.S.C. § 922(a)(6). His guidelines range was 15 to 21 months, but the court varied upward to 120 months based on evidence that defendant had participated in an armed assault in which a car passenger was shot. On appeal, defendant argued that the district court erroneously relied on his “propensity” to use firearms in criminal activity. The Eighth Circuit found no error, noting that defendant had participated in the armed assault, “had a history of possessing stolen firearms and had unlawfully carried a handgun while intoxicated.” The district court could properly find that defendant had a “propensity” to use firearms in criminal activity. U.S. v. Anderson, __ F.3d __ (8th Cir. June 12, 2019) No. 18-1640.
8th Circuit upholds extreme upward variance for regulatory firearms offense. (330)(741) Defendant pleaded guilty to making a false statement to a firearms dealer, in violation of 18 U.S.C. § 922(a)(6). His guidelines range was 15 to 21 months, but the district court varied upward to 120 months based in large part on defendant’s participation in an uncharged armed assault. Defendant argued that the district court had not adequately explained its upward variance, saying that the district court had not addressed the nature and circumstances of his non-violent regulatory offense, his scant criminal history, his vocational history, and Probation’s recommendation for a downward variance. The Eighth Circuit found defendant’s argument “not without some force,” but found no error because the district court stated that it had considered the relevant factors. U.S. v. Anderson, __ F.3d __ (8th Cir. June 12, 2019) No. 18-1640.
8th Circuit says variance for uncharged conduct is not limited by guideline for charged conduct. (330) (741) Defendant’s guidelines range for making a false statement to a firearms dealer was 15 to 21 months, but the court varied upward to 120 months based on defendant’s participation in an uncharged armed assault. Defendant claimed that his sentence was substantively unreasonable because if he had been convicted of the assault, his guidelines range would have increased by only 27 months. The Eighth Circuit affirmed, holding that a district court is not limited to what the guidelines sentencing range would have been if defendant had been convicted of other conduct. U.S. v. Anderson, __ F.3d __ (8th Cir. June 12, 2019) No. 18-1640.
8th Circuit reiterates that Minnesota robbery is a “crime of violence.” (330) Defendant pleaded guilty to possession of a firearm by a felon. Section 2K2.1(a)(2) provides an increase if defendant had a prior conviction for a “crime of violence.” Defendant had a prior conviction under Minnesota Statutes § 609.24 for robbery. The Eighth Circuit reiterated earlier precedent finding that robbery under Minnesota law is a “crime of violence.” U.S. v. Williams, __ F.3d __ (8th Cir. June 13, 2019) No. 18-1273.
8th Circuit finds using a firearm during a drug crime may be a “controlled substance offense.” (330) The guideline for possession of a firearm by a felon, § 2K2.1(a)(2), sets the offense level higher if defendant has a prior conviction for a “controlled substance offense.” Here, defendant had a prior conviction for using a firearm during a conspiracy to distribute controlled substances, in violation of 18 U.S.C. § 924(c), The Eighth Circuit held that the offense defined by § 924(c) is divisible depending on the underlying felony. Using the modified categorical approach, the panel found that defendant’s conviction for using a firearm in relation to a conspiracy to distribute controlled substances was a “controlled substance offense.” U.S. v. Williams, __ F.3d __ (8th Cir. June 13, 2019) No. 18-1273.
8th Circuit upholds within-guidelines sentence despite claim that court failed to consider mitigation. (330) (742) Defendant pleaded guilty to possession of a firearm by a felon. His guidelines range was 70 to 87 months, and the district court sentenced him to 70 months. Defendant argued that his sentence was substantively unreasonable because the district court had not weighed his mitigating personal history. The Eighth Circuit affirmed, noting that the district court found that the mitigating circumstances were outweighed by other aggravating circumstances, including defendant’s participation in a violent gang and lengthy criminal history. U.S. v. Williams, __ F.3d __ (8th Cir. June 13, 2019) No. 18-1273.
10th Circuit holds Wyoming interference with a peace officer is a “crime of violence.” (330) Under § 2K2.1(a)(2), a defendant convicted of possession of a firearm by a felon is subject to an enhanced offense level if he has a prior conviction for a “crime of violence.” Section 4B1.2(a) defines “crime of violence” as an offense that has as an element the use, attempted use, or threatened use of physical force against the person of another. Defendant had a prior conviction under Wyoming § 6-5-204(b) for felony interference with a peace officer. The Tenth Circuit held that the Wyoming offense is categorically a “crime of violence.” U.S. v. Winder, __ F.3d __ (10th Cir. June 14, 2019) No. 17-8075.
8th Circuit says Dean does not allow variance below mandatory minimum. (245)(330)(740) In Dean v. U.S., 137 S.Ct. 1170 (2017), the Supreme Court held that a sentencing court may consider the mandatory minimum sentence required by 18 U.S.C. § 924(c) when deciding whether to vary downward on other counts of conviction. The Eighth Circuit held that Dean did not allow a court to vary below a mandatory minimum sentence when defendant is convicted on a § 924(c) count and another count carrying a mandatory minimum. U.S. v. Guzman, __ F.3d __ (8th Cir. June 13, 2019) No. 18-1506.
1st Circuit upholds upward variance based on arrests. (330)(510) Defendant was convicted of being a felon in possession of a firearm. His guidelines range was 15 to 21 months. The district court relied in part on defendant’s history of six arrests (four of which related to drug possession) to sentence him to 36 months. The First Circuit held that the prior arrests for drug trafficking found support in defendant’s admitted drug use and that the district court had not relied on any arrests that led to acquittals. The court held that relying on arrests fits comfortably within the factors set forth in 18 U.S.C. § 3553(a). The court therefore upheld the upward variance based in part on defendant’s prior arrests. U.S. v. Rodriguez-Reyes, __ F.3d __ (1st Cir. June 5, 2019) No. 18-1217.
7th Circuit says criminal history not overrepresented despite lack of violent crimes. (330) Defendant pleaded guilty to possession of a firearm by a felon. His offense level was increased to 24 because he had two prior state drug-trafficking convictions, making his guidelines range 110 to 120 months. The district court rejected defendant’s contention that because he did not have a history of violence, his offense level overrepresented his prior criminal history, and sentenced him to 110 months. The Seventh Circuit affirmed, finding that the district court adequately considered the factors in 18 U.S.C. § 3553(a) and appropriately addressed defendant’s mitigation argument. U.S. v. Terronez, __ F.3d __ (7th Cir. June 7, 2019) No. 18-3169.
8th Circuit finds bank robbery and carjacking are “crimes of violence.” (330) In 2014, defendant pleaded guilty to two counts using a firearm during and in relation to a “crime of violence,” in violation of 18 U.S.C. § 924(c). The underlying “crimes of violence” were bank robbery and carjacking. The Eighth Circuit rejected defendant’s arguments that these crimes had been found to be “crimes of violence” only under the “residual clause” of § 924(c) and held that both bank robbery and carjacking were crimes of violence under the “elements” clause. Both have as an element the use, attempted use, or threatened use of physical force against the person of another. Estell v. U.S., __ F.3d __ (8th Cir. June 4, 2019) No. 18-2550.
10th Circuit upholds enhancement for large-capacity magazine. (330) Under § 2K2.1(a)(4)(B), a defendant convicted of felon in possession of a firearm receives an offense level of 20 if the offense involved a semiautomatic weapon that is capable of accepting a large-capacity magazine. Defendant pleaded guilty to being a felon in possession of a firearm. A video showed him carrying a semiautomatic rifle, but did not show that a large-capacity magazine was attached. During a search of a residence that defendant had occupied, police found the same rifle with a large-capacity magazine attached to it. Defendant was not present during the search. Nevertheless, the district court applied the enhancement. Reviewing for clear error, the Tenth Circuit affirmed, noting that the large-capacity magazine was attached to the firearm in a closet in defendant’s residence, there was a second large-capacity magazine in defendant’s residence, and a box in defendant’s trash had ammunition that could be used in the large-capacity magazine. U.S. v. Bellamy, __ F.3d __ (10th Cir. June 3, 2019) No. 18-3189.
8th Circuit affirms 622-month sentence for drugs and guns as not cruel or unusual. (140)(242)(330) Defendant was convicted of drug and gun offenses, including two counts of possession of a firearm in relation to a drug-trafficking crime in violation of 18 U.S.C. § 924(c). The district court sentenced him to 262 months on the drug and gun offenses and a consecutive 360 months on the § 924(c) counts. On appeal, he argued that his sentence violated the Eighth Amendment because it was grossly disproportionate to his offense. The Eighth Circuit found that the 360-month sentence on the § 924(c) counts was not subject to analysis under the Eighth Amendment and the remaining sentence was not disproportionate to defendant’s offenses. U.S. v. McDaniel, __ F.3d __ (8th Cir. May 30, 2019) No. 18-1477.
6th Circuit upholds enhancement for possessing gun in connection with drug offense. (330) During a search of defendant’s four-room residence, police officers found 51 marijuana plants in one room. In another room, the officers found a loaded pistol on defendant’s bedside table near a scale and a marijuana-growing magazine. Defendant was convicted of possession of a firearm by a felon. At sentencing, the district court enhanced his offense level by four under § 2K2.1(b)(6)(B) for possessing a firearm “in connection with another felony offense.” Defendant argued that there was no nexus between the firearm and his cultivation of marijuana, but the Sixth Circuit found a sufficient nexus under the “fortress theory” in which a firearm found in close proximity to drugs justifies the enhancement. U.S. v. Shanklin, __ F.3d __ (6th Cir. May 24, 2019) No. 18-5289.
8th Circuit rejects claim that defendant intended to share, rather than sell, marijuana. (330) Defendant was arrested carrying a firearm and 41 bags of marijuana, each containing about six grams. Defendant pleaded guilty to possession of a firearm by a felon, but at sentencing, he argued that he possessed the marijuana simply for personal use and to share with friends. The district court rejected this argument, finding that the marijuana was packaged for sale. Accordingly, the court added four levels under § 2K2.1(b)(6)(B) for possessing the firearm in connection with a drug-trafficking offense. On appeal, the Eighth Circuit affirmed, ruling that the district court properly relied on the weight and packaging of the marijuana in rejecting defendant’s claim that he shared marijuana with friends for no charge. U. S. v. Brockman, __ F.3d __ (8th Cir. May 20, 2019) No. 18-1187.
9th Circuit says Dean rule allowing consideration of §924(c) mandatory minimum, is not retroactive. (330) (880) In Dean v. U.S., 137 S.Ct. 1170 (2017), the Supreme Court held that in imposing a consecutive mandatory minimum sentence required by 18 U.S.C. § 924(c), the district court has discretion to consider the § 924(c) sentence when deciding the proper sentence for the predicate drug-trafficking offense. In the present case, defendant’s 2008 sentence for drug trafficking included a consecutive mandatory minimum sentence for possession of a firearm during the offense under 18 U.S.C. § 924(c). He filed a second or successive motion under 28 U.S.C. § 2255 arguing that Dean applied retroactively to his sentence. The Ninth Circuit held that Dean is not retroactive and denied his application to file a second or successive § 2255 motion. Garcia v. U.S. __ F.3d __ (9th Cir. May 16, 2019) No. 17-71759.
10th Circuit finds Colorado attempted robbery is “crime of violence.” (330) Under § 2K2.1(a)(4)(a), the offense level for a defendant convicted of possession of a firearm by a felon is enhanced if the defendant has a prior conviction for a “crime of violence.” That term is defined in § 4B1.2(a) in part to mean an offense that has the use, attempted use, or threatened use of physical force against the person of another. Defendant, convicted of being a felon in possession of a firearm, had a prior conviction for Colorado attempted robbery. The Tenth Circuit held that the definition of “attempt” in Colorado Rev. Stat. § 18-2-101(1) is sufficiently similar to the generic definition of attempt that attempted robbery in Colorado is categorically a “crime of violence.” U.S. v. Mendez, __ F.3d __ (10th Cir. May 17, 2019) No. 18-1259.
11th Circuit finds federal second-degree murder is “crime of violence.” (330) Under 18 U.S.C. § 924(c), a defendant who carries or uses a firearm during a “crime of violence” commits an offense in addition to the underlying crime. A “crime of violence” is defined by both the “elements clause” and the “residual clause.” In Ovalles v. U.S., 905 F.3d 1231 (11th Cir. 2018), the en banc Eleventh Circuit held that the residual clause in § 924(c) is not unconstitutionally vague. In this case, the Eleventh Circuit held that second-degree murder in violation of 18 U.S.C. § 1111 is categorically a “crime of violence” under both the elements clause and the residual clause of §924(c). Thompson v. U.S., __ F.3d __ (11th Cir. May 17, 2019) No. 18-10488.
8th Circuit approves first-degree murder cross-reference for trading gun used to kill woman. (210)(330) Defendant gave a 9mm firearm to an acquaintance in return for a .22 caliber firearm. The acquaintance used the 9mm gun to kill a woman. Defendant pled guilty to being a felon in possession of the .22 caliber firearm, and conspiracy to possess one or more firearms in furtherance of a drug conspiracy. The firearms guideline provides a cross-reference in 2K2.1(c)(1)(B) if the defendant transferred the firearm with knowledge that it would be used in connection with another offense and “death resulted.” Even though defendant was not charged with possessing the 9mm firearm, the district court applied the cross-reference and sentenced defendant under the first-degree murder guideline, §2A1.1. On appeal, the Eighth Circuit affirmed. Although the guideline limits the cross-reference to the firearm “cited in the offense of conviction,” that term encompasses all of the offense conduct. Because defendant was convicted of conspiracy, the district court correctly applied the cross reference. U.S. v. Edger, __ F.3d __ (8th Cir. May 23, 2019) No. 18-1594.
5th Circuit finds that offenses were separated by arrest. (330) A defendant convicted of being a felon in possession of a firearm is subject to an offense level of 24 under § 2K2.1(a)(2) if defendant committed the offense after having sustained two convictions for a “crime of violence.” Under § 4A1.2, convictions are not counted separately if they were sentenced on the same day, unless they were separated by an intervening arrest. In this case, defendant was sentenced on the same day for his prior two offenses, but he committed the offenses on separate dates and they were separated by an arrest. For that reason, the Fifth Circuit held the two offenses were properly counted separately. U.S. v. Flores, __ F.3d __ (5th Cir. Apr. 30, 2019) No. 18-40334.
1st Circuit says photos showing guns and drugs were properly considered at firearms sentencing. (330) (770) At defendant’s sentencing for possession of a machinegun, the district court considered photographs that had been found on defendant’s phone and that depicted defendant and others handling drugs, drug paraphernalia, and guns. Defendant objected to the district court’s consideration of these photographs, but the First Circuit held that the photographs conveyed reliable information pertinent to defendant’s sentence. U.S. v. Viloria-Sepulveda, __ F.3d __ (1st Cir. Apr. 16, 2019) No. 18-1152.
1st Circuit says community considerations can be a factor in sentence. (330)(770) Defendant pleaded guilty to possession of a machinegun. At sentencing, the district court varied upward from the guidelines sentence based on the fact that Puerto Rico, where the offense occurred, “is a hot spot for weapons.” The First Circuit held that “[c]ommunity considerations such as the prevalence of weapons and of violent crime can justify upwardly varying a sentence for a gun possession.” U.S. v. Viloria-Sepulveda, __ F.3d __ (1st Cir. Apr. 16, 2019) No. 18-1152.
1st Circuit finds no error in imposition of sentence higher than plea agreement. (330)(741) Defendant pleaded guilty to possession of a machinegun pursuant to a plea agreement that stipulated an offense level and bound the parties to recommend a 46-month sentence. The presentence report set forth a lower offense level than the plea agreement. Without stating which offense level it found, the district court sentenced defendant to 60 months based on the nature of the offense and the firearms defendant possessed. On appeal, defendant argued that the district court should have determined which offense level was correct. The First Circuit found that the district court had not erred because defendant had agreed to an offense level in the plea agreement and the district court found a 60-month sentence justified by circumstances other than defendant’s guideline range. U.S. v. Ortiz-Álvarez. __ F.3d __ (1st Cir. Apr. 19, 2019) No. 18-1452.
4th Circuit says NCIC report may be sufficient to support stolen firearm enhancement. (330) Defendant was convicted of possessing a firearm by a felon. The government showed the firearm was stolen based on a computerized report from NCIC that was updated with federal, state, and local information and maintained by the FBI. As a result, the district court enhanced defendant’s offense level by two under § 2K2.1(b)(4)(A) because the firearm was stolen. Although the Fourth Circuit characterized the NCIC report as “not always” accurate, it held that if the defendant did not cast doubt on the NCIC report, it was sufficient to support the enhancement under § 2K2.1(b)(4)(A). U.S. v. Walker, __ F.3d __ (4th Cir. Apr. 25, 2019) No. 18-4110.
8th Circuit finds evidence supports enhancement for possession of multiple firearms. (330) A search of defendant’s car and residence produced three pistols. Defendant pleaded guilty to a single count of possession of a firearm by a felon based on one of the firearms found in his residence. During a presentence interview, defendant admitted to handling another firearm. At sentencing, the district court found that defendant possessed three firearms and enhanced defendant’s offense level by two under § 2K2.1(b)(1)(A). The Eighth Circuit found that defendant’s presentence statement established that he had possessed another firearm. U.S. v. Goodson, __ F.3d __ (8th Cir. Apr. 15, 2019) No. 18-1515.
11th Circuit finds magazine was in “close proximity” to firearm. (330) Defendant, an illegal alien, had a locked AR-15 rifle in a gun case ten feet away from a high-capacity magazine. He pleaded guilty to being a prohibited person in possession of a firearm, in violation of 18 U.S.C. § 922(g)(5). At sentencing, the district court enhanced his offense level under § 2K2.1(a)(4)(B) because his offense involved a semiautomatic weapon “in close proximity” to a high-capacity magazine. The Eleventh Circuit held that the high-capacity magazine was in “close proximity” to the firearm. U.S. v. Gordillo, __ F.3d __ (11th Cir. Apr. 17, 2019) No. 18-12095.
8th Circuit allows firearms increase for “another felony offense” to be based on correlative state offense. (125)(330) Defendant pleaded guilty to possession of a firearm by a felon. At sentencing, the district court applied a four-level enhancement under § 2K2.1(b)(6)(B) because defendant used the firearm in connection with another felony offense, i.e., Iowa Code § 724.4(1), which prohibits carrying a firearm during a dangerous offense. Defendant argued that he could not commit the Iowa offense without committing the federal offense and therefore the enhancement constituted improper double counting. Applying a prior decision, the Eighth Circuit held that applying the enhancement based on the Iowa offense was not improper double counting. U.S. v. Houston, __ F.3d __ (8th Cir. Apr. 10, 2019) No. 18-1516.
1st Circuit finds court properly considered mandatory minimum §924(c) count in sentencing for robbery. (224)(330) Defendant pleaded guilty to bank robbery, in violation of 18 U.S.C. § 2113(a), and brandishing a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c). Section 924(c) requires an 84-month mandatory minimum sentence. Defendant argued that at sentencing the district court had the “mistaken belief” that it could not consider the mandatory § 924(c) sentence when fashioning a sentence for the bank robbery. The First Circuit found no evidence that the district court had any misconception when sentencing defendant for the bank robbery. U.S. v. Blewitt, __ F.3d __ (1st Cir. Apr. 5, 2019) No. 18-1356.
1st Circuit says Maine drug offense was “controlled substance offense” under modified categorical approach. (330) Defendant was convicted of possession of a firearm by a felon and the district court enhanced his sentence for a prior “controlled substance offense” based on his prior conviction under Maine Stat. tit. 17-A, § 1103(1-A)(A) for intentionally or knowingly trafficking in crack. The Maine statute permits an inference that a defendant is trafficking based on possession of at least four grams of crack. The district court found that the Maine statute was not a “controlled substance offense” and the government appealed. The First Circuit held that the Maine statute was not categorically a “controlled substance offense. However, it applied the modified categorical approach to find that defendant had committed a “controlled substance offense.” The court found that distributing four grams or more is a “controlled substance offense.” U.S. v. Mohamed, __ F.3d __ (1st Cir. Apr. 3, 2019) No. 18-1498.
9th Circuit finds that failure to contest presentence report foreclosed challenge. (330)(760) Defendant pleaded guilty to possession of a firearm by a felon. The presentence report characterized his prior conviction for assault under California Penal Code § 245(a)(1) as a felony. Defendant affirmatively agreed with that characterization, and the district court found that the assault was a “crime of violence” under § 2K2.1(a)(4)(A). On appeal, defendant argued that his prior conviction was a misdemeanor that should not be used to enhance his offense level. The Ninth Circuit held that defendant’s argument was foreclosed by Fed. R. Crim. P. 32(i)(3)(A), which provides that the district court may accept any undisputed portion of the presentence report. U.S. v. Johnson, __ F.3d __ (9th Cir. Apr. 9, 2019) No. 18-10016.
9th Circuit finds prior conviction for California assault “wobbler” was a felony. (330) Defendant, convicted of being a felon in possession of a firearm, had a prior conviction for assault under California Penal Code § 245(a)(1). The guideline for possession of a firearm by a felon, § 2K2.1(a)(4)(A), increases a defendant’s offense level if the defendant had a prior felony “crime of violence.” Section 245(a)(1) describes a “wobbler” under California law that can be either a misdemeanor or a felony. The Ninth Circuit held that a “wobbler” in California is presumptively a felony and remains a felony unless the trial court exercises discretion to make it a misdemeanor. The court examined defendant’s charging and conviction documents and found that defendant had been convicted of a felony. U.S. v. Johnson, __ F.3d __ (9th Cir. Apr. 9, 2019) No. 18-10016.
8th Circuit finds reasons on remand adequately explained sentence. (170)(330) Defendant was convicted of aiding and abetting a murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(5), and of using and carrying a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c), as well as other offenses. At his initial sentencing, he received 420 months, but the Eighth Circuit vacated that sentence as illegal. On remand, the district court sentenced him to 380 months, increasing the § 924(c) sentence from the mandatory minimum of 60 months to 140 months. The district court explained that 380 months was the appropriate sentence and increasing defendant’s sentence on the § 924(c) count was one way to arrive at that sentence. The Eighth Circuit found that the district court had adequately explained its sentence. U.S. v. Morris, __ F.3d __ (8th Cir. Mar. 20, 2019) No. 17-2979.
1st Circuit upholds above-guidelines sentence based on type of weapon and danger to community. (330) (741) Defendant was convicted of possession of a firearm by a felon after a police search of his residence produced two loaded firearms and multiple rounds of ammunition. Defendant’s guidelines range was 30 to 37 months, and the district court imposed a 48-month sentence. The district court relied on the serious nature of the offense, the type of weapon and the amount of ammunition defendant possessed, and defendant’s criminal history. When questioned about the severity of the sentence, the district court also mentioned the safety of the community and defendant’s seven-year-old child who lived in the searched premises. The First Circuit found that the district court adequately explained its above-guidelines sentence. U.S. v. Rivera-Santiago, __ F.3d __ (1st Cir. Mar. 22, 2019) No. 17-1763.
1st Circuit upholds firearms sentence based on history and supervised release status. (330)(742) Defendant pleaded guilty to possession of a firearm by a felon. His guidelines range was 57 to 71 months. At sentencing, the district court stated that it had considered all the factors under 18 U.S.C. § 3553(a) and expressly noted defendant’s personal and criminal history, the nature of the offense, the type of weapon involved, the amount of ammunition that defendant possessed, and his supervised release status at the time of the offense. The court also addressed defendant’s request for a departure based on the possible recurrence of cancer that he faced. The court sentenced defendant to 71 months. The First Circuit found that the district court had not procedurally or substantively erred in sentencing defendant. U.S. v. Ortiz-Mercado, __ F.3d __ (1st Cir. Mar. 29, 2019) No. 17-1383.
7th Circuit reverses and holds that drug possession alone does not show connection to firearms. (330) Defendant pleaded guilty to possession of a firearm by a felon. At sentencing, the district court enhanced his offense level by four under § 2K2.1(b)(6)(B) because 299 grams of marijuana and about an ounce of cocaine had been found in the same room as the firearms. The Seventh Circuit held that mere possession of drugs, without more, does not show that the drugs were possessed in connection with the firearms and cannot support an increase under § 2K2.1(b)(6)(B). U.S. v. Briggs, __ F.3d __ (7th Cir. Mar. 27, 2019) No. 18-1415.
6th Circuit says carjacking is a “crime of violence.” (330) Defendants were charged with carjacking, in violation of 18 U.S.C. § 2119, and with using a firearm during and in relation to the carjacking, a “crime of violence,” in violation of 18 U.S.C. § 924(c). Section 924(c) defines “crime of violence” in part to mean an offense that has as an element the use, attempted use, or threatened use of force against the person or property of another.” The Sixth Circuit held that carjacking is a “crime of violence.” U.S. v. Jackson, __ F.3d __ (6th Cir. Mar. 12, 2019) No. 17-3896.
9th Circuit reaffirms that defendant need not know that firearm is stolen. (330) Under § 2K2.1(b)(4), a defendant convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g), receives a two-level enhancement in offense level if the firearm is stolen. Since 1993, the Ninth Circuit has held that the § 2K2.1(b)(4) enhancement applies regardless of whether the defendant knows that the firearm is stolen. Here, the Ninth Circuit rejected the defendant’s argument that subsequent Supreme Court decisions had altered that conclusion. Accordingly, the panel reaffirmed that the enhancement applies even the defendant does not know that the firearm is stolen. U.S. v. Prien-Pinto, __ F.3d __ (9th Cir. Mar. 12, 2019) No. 18-30055.
10th Circuit says Missouri second-degree robbery is a “crime of violence.” (330) Defendant was convicted of a firearms offense. The district court increased his sentence under § 2K2.1(a), finding that his prior conviction of Missouri second-degree robbery, in violation of Mo. Rev. Stat. § 569.030, was a “crime of violence.” Guidelines § 4B1.2(a) defines a “crime of violence” in part to mean an offense that as an element the use, attempted use, or threatened use of physical force against another person. The Tenth Circuit held that this offense was categorically a “crime of violence.” U.S. v. Ash, __ F.3d __ (10th Cir. Mar. 12, 2019) No. 17-3223.
10th Circuit holds that Kansas aggravated battery is a “crime of violence.” (330) Under § 2K2.1(a), a defendant convicted of possession of a firearm by a felon is subject to an increased offense level if defendant has a prior conviction for a “crime of violence.” That term is defined as an offense having as an element the use, attempted use, or threatened use of physical force against the person of another. Defendant had a prior conviction for “recklessly causing bodily harm to another with a deadly weapon, or in any manner whereby great bodily harm, disfigurement, or death can be inflicted” in violation of Kansas Stat. § 21-3414(a)(2)(B). The Tenth Circuit held that this offense was a “crime of violence.” The court noted that its prior decisions excluding from the definition of “crime of violence” offenses with a mens rea of recklessness had been overturned by intervening Supreme Court cases. U.S. v. Ash, __ F.3d __ (10th Cir. Mar. 12, 2019) No. 17-3223.
8th Circuit okays double counting increases for stolen firearm and “in connection with another offense.” (125)(330) Defendant pawned a stolen firearm at a pawn shop, and pled guilty to being a felon in possession of a firearm. The district court increased the offense level under § 2K2.1(b)(4)(A) for the stolen firearm, and added four levels under § 2K2.1(b)(6)(B) because the stolen firearm was possessed “in connection with another felony offense,” i.e., theft by receiving under Arkansas law. The Eighth Circuit rejected defendant’s argument that the two enhancements constituted double counting. The argument was foreclosed by U.S. v. Kenney, 283 F.3d 934, 937 (8th Cir. 2002) (finding no impermissible double counting when applying enhancements under both § 2K2.1(b)(4)(A) and § 2K2.1(b)(5)3 because the subsections are conceptually separate). U.S. v. Canamore, __ F.3d __ (8th Cir. Feb. 26, 2019) No. 18-1419.
7th Circuit rejects procedural challenges to below-guidelines sentence. (224)(330) Defendant pleaded guilty to Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a), and using a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c). He had an offense level of 28, and fell into criminal history category I, for a sentencing range of 78 to 97 months. Defendant claimed he had committed the robberies out of financial hardship. The district court said it was unpersuaded and sentenced defendant to 60 months, plus the 84-month sentence required by § 924(c). On appeal, defendant argued that the district court failed to address defendant’s mitigation arguments. The Seventh Circuit affirmed, finding that the district court adequately rejected defendant’s claim of financial hardship and that the district court’s below-guidelines sentence excused any failure by the district court to do more that state that it had read defendant’s submission. U.S. v. Graham, __ F.3d __ (7th Cir. Feb. 8, 2019) No. 18-2156.
7th Circuit reverses for lack of evidence that defendant trafficked guns to illegal persons. (330) Defendant participated in a scheme to steal 111 firearms. He sold some of the guns to different anonymous buyers who told him they had “heard about it.” He pleaded guilty to possession of a firearm by a convicted felon. At sentencing, the district court enhanced his offense level under § 2K2.1(b)(5) because defendant had trafficked firearms to people he knew or had reason to know were unlawful users or possessors. Reviewing for plain error, the Seventh Circuit found that the district court erred in imposing this enhancement because there was no evidence that defendant knew that anyone who bought firearms from defendant would use or possess the firearms illegally. U.S. v. Moody, __ F.3d __ (7th Cir. Feb. 7, 2019) No. 18-1837.
9th Circuit finds firearms sentence was not based on the ACCA. (330)(540) Defendant pleaded guilty to possession of a firearm by a felon. Although the government initially sought the 15-year mandatory minimum mandated by the Armed Career Criminal Act, 18 U.S.C. §924(e), at sentencing it did not seek a sentence required by the ACCA, and defendant received a sentence below his guidelines range. When the Supreme Court later held that the residual clause of the ACCA was void for vagueness in Johnson v. U.S., 135 S.Ct. 2551 (2015), defendant argued that his prior convictions no longer qualified under the ACCA and that he would not have pleaded guilty if he had not been subject to a mandatory minimum sentence under the ACCA. The Ninth Circuit rejected this argument, holding that defendant had not shown that his sentence was based on the ACCA. U.S. v. Hill, __ F.3d __ (9th Cir. Feb. 7, 2019) No. 17-35719.
4th Circuit, en banc, says §924(c) definition of “crime of violence” is unconstitutionally vague. (120)(330) A defendant who uses or carries a firearm during and in relation to a “crime of violence” is subject to enhanced penalties under 18 U.S.C. § 924(c)(3)(B). The definition of “crime of violence” in § 924(c)(3)(B) includes an offense “that by its nature, involves a substantial risk of physical force against the person or property of another.” The Supreme Court in Johnson v. U.S., 135 S.Ct. 2551 (2015), struck down similar language in the Armed Career Criminal Act, 18 U.S.C. §924(e)(2)(B)(ii) as unconstitutionally vague. Sitting en banc, the Fourth Circuit held that the language in § 924(c)(3)(B) is also unconstitutionally vague. The court rejected the government’s argument that the court should look at the conduct underlying the alleged “crime of violence.” Instead, it used the categorical approach. U.S. v. Simms, __ F.3d __ (4th Cir. Jan 24, 2019) No. 15-4640.
1st Circuit says Pureto Rico drug conspiracy was not a “controlled substance offense.” (330) A person convicted of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g), who has a prior felony conviction for a “controlled substance offense” is subject to an enhanced offense level under § 2K2.1(a)(4)(A). Defendant had a prior conviction under Puerto Rico Laws Ann. tit. 24, § 2406 for attempting or conspiring to commit possession of a controlled substance. The First Circuit held that the Puerto Rico offense is not categorically a “controlled substance offense” as the guidelines define that term. Applying the modified categorical approach, the court found that the relevant documents did not show the substance involved in defendant’s plea or that he pleaded guilty to an offense involving an intent to distribute. U.S. v. Martinez-Benitez, __ F.3d __ (1st Cir. Jan. 14, 2019) No. 17-1393.
8th Circuit upholds within-guidelines firearm sentence despite defendant’s claims. (330)(742) Defendant pleaded guilty to possession of a firearm by a convicted felon. He was sentenced to 34 months, the middle of his guidelines range of 30 to 37 months. At sentencing, defendant claimed he was only taking the gun out of a house where it would be available to children. The district court noted that defendant had previously been convicted of unlawful possession of a firearm and found that regardless of his intentions, he knew he was not supposed to possess it. On appeal, the Eighth Circuit found this sentence substantively reasonable, rejecting the defendant’s argument that the district court should have varied downward because of his good intentions. U.S. v. Williams, __ F.3d __ (8th Cir. Jan. 28, 2019) No. 17-3740.
8th Circuit says Illinois vehicular hijacking is a “crime of violence.” (330) A defendant convicted of being a felon in possession of a firearm is subject to an enhanced offense level under § 2K2.1(a) if defendant has previously been convicted of a “crime of violence.” That term is defined in part to be any felony that has an element the use, attempted use, or threatened use of physical force against the person of another. Defendant, convicted of being a felon in possession of a firearm, had a prior conviction under Illinois Comp. Stat. 5/18-3(a), 4(a)(4) for vehicular hijacking while armed. The Eighth Circuit held that a violation of the Illinois statute is categorically a “crime of violence.” U.S. v. Sykes, __ F.3d __ (8th Cir. Jan. 30, 2019) No. 17-3221.
9th Circuit holds Washington second-degree assault is not an enumerated “crime of violence.” (330) Defendant pleaded guilty to possession of a firearm by a convicted felon. The guideline for that offense, § 2K2.1, requires an enhanced offense level for a defendant previously convicted of a “crime of violence.” That term is defined in § 4B1.2(a) in part to include “aggravated assault.” Defendant had a prior conviction under Washington Rev. Code § 9A.36.021(1) for second-degree assault. The Ninth Circuit held that Washington second-degree assault is not “aggravated assault” as § 4B1.2(a) uses that term. U.S. v. Vederoff, __ F.3d __ (9th Cir. Feb. 1, 2019) No. 17-30096.
9th Circuit says Washington second-degree murder is not a “crime of violence.” (330) The guideline for possession of a firearm by a convicted felon, § 2K2.1, provides for an enhanced offense level if defendant had a prior conviction for a “crime of violence.” That term is defined to include “murder” or an offense that has as an element the use, attempted use, or threatened use of physical force against the person of another. Defendant had a prior conviction under Washington Rev. Code § 9A.32.050 for second-degree murder. The Ninth Circuit held that the Washington offense was not a “crime of violence” under any definition of that term. U.S. v. Vederoff, __ F.3d __ (9th Cir. Feb. 1, 2019) No. 17-30096.
1st Circuit upholds machine gun sentence, finding no mis-weighing of factors. (330)(741) Defendant pleaded guilty to possession of a machine gun, in violation of 18 U.S.C. § 922(o). When arrested, defendant had a machine gun fully loaded with an extended clip. Two other loaded magazines were found nearby. Defendant told the arresting officers that he specifically asked for a fully automatic weapon when he bought the gun to protect himself while dealing drugs. His guidelines range was 24 to 30 months, but the district court varied upward to 46 months. The district court considered defendant’s mental health, but particularly relied on the nature of the offense. The First Circuit found that the district court had considered the relevant factors under 18 U.S.C. § 3553(a) and that the sentence was not substantively unreasonable. U.S. v. Contreras-Delgado, __ F.3d __ (1st Cir. Jan. 17, 2019) No. 17-1962.
4th Circuit upholds fact-finding for cross-reference to murder guideline. (330) Defendant pleaded guilty to possession of a firearm by a convicted felon. Defendant was discovered with a gun during a traffic stop in which he shot a police officer. The guideline applicable to that offense, § 2K2.1(c), states that a district court may use the offense level for any offense that defendant committed or attempted to commit when he possessed the firearm. The district court found that the victim police officer’s testimony was credible and defendant’s was not. Based on that credibility finding, the court found that defendant attempted to commit murder and used § 2A2.1 as the otherwise applicable guideline. The Fourth Circuit upheld the district court’s credibility findings and found no error in applying the murder cross-reference. U.S. v. Lynn, __ F.3d __ (4th Cir. Jan. 7, 2019) No. 17-4232.
Supreme Court to consider if “crime of violence” in 924(c) firearm statute is vague. (120)(280)(330)(540) Recent Supreme Court cases have struck down as unconstitutionally vague the “residual clauses” of the definitions of “crime of violence” in both 18 U.S.C. § 16(b) and the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B). There is a nearly identical “residual clause” in the definition of “crime of violence” in § 924(c)(3)(B), which makes it a crime to possess, use, or carry a firearm in connection with a crime of violence. On January 4, 2019, the Court granted certiorari to consider whether the residual clause of 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague. U.S. v. Davis, __ U.S. __, 139 S.Ct. __ (Jan. 4, 2019).
8th Circuit finds that gun was used to intimidate underage victim. (330) Defendant kidnapped a 15-year-old boy and kept him at his house. The boy later told police that defendant kept a rifle near the front entrance to his house. Defendant was convicted of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g). At sentencing, the district court enhanced the offense level under § 2K2.1(b)(6)(B) because defendant used the firearm in connection with another felony offense, i.e., harboring a runaway in violation of Iowa Code § 710.8(1)(b). The Eighth Circuit agreed that even though defendant had not been charged with harboring a runaway, the evidence showed that he had committed that offense. Defendant knew the boy was a runaway, and the location of the gun and the fact that the victim was intimidated by it showed that defendant had used the firearm in connection with keeping the victim at his house. U.S. v. Mathis, __ F.3d __ (8th Cir. Dec. 27, 2018) No. 17-3642.
10th Circuit reaffirms that Hobbs Act robbery is a “crime of violence.” (330) Defendant was convicted of brandishing a firearm during a “crime of violence,” in violation of 18 U.S.C. § 924(c). That statute defines “crime of violence” in part to mean an offense that has “as an element the use, attempted use, or threatened use of physical force against the person or property of another.” Defendant’s alleged “crime of violence” was a Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a). Reaffirming an earlier decision, the Tenth Circuit found that Hobbs Act robbery is categorically a “crime of violence.” The court rejected defendant’s argument that force is only a means of committing the crime, not an element of the crime. U.S. v. Jefferson, __ F.3d __ (10th Cir. Dec. 28, 2018) No. 17-3150.
8th Circuit finds Missouri attempted first-degree robbery is “crime of violence.” (330) Defendant was convicted of being a felon in possession of a firearm. The guideline for that offense, § 2K2.1(a)(4)(A), provides for an enhanced offense level if the defendant has a prior conviction for a “crime of violence.” That term is defined in part to include any offense “that has as an element the use, the attempted use, or threatened use of physical force against the person of another.” Defendant had a prior conviction under Missouri Revised Statute § 569.020.1 for attempted first-degree robbery. The Eighth Circuit held that this offense categorically qualifies as a “crime of violence.” U.S. v. Shine, __ F.3d __ (8th Cir. Dec. `12, 2018) No. 17-3119.
10th Circuit holds that offense committed recklessly can be a “crime of violence.” (330) Defendant pleaded guilty to possession of a firearm by a convicted felon. Defendant had a prior conviction under Utah Code Annotated § 76-5-102(1) for second-degree aggravated assault. The district court found that this did not qualify as a “crime of violence” under § 4B1.2(a)(1) and therefore that defendant’s offense level should not be enhanced under § 2K2.1(a)(4)(A). On the government’s appeal, the Tenth Circuit held that Utah second-degree aggravated assault categorically qualifies as a crime of violence. The court recognized that it had previously held that an offense that can be committed recklessly does not qualify as a “crime of violence,” but it held that the Supreme Court’s decision in Voisine v. U.S., 136 S.Ct. 2272 (2016), overruled its prior decisions. U.S. v. Bettcher, __ F.3d __ (10th Cir. Dec. 21, 2018) No. 16-4165.
3d Circuit reverses where gun was not possessed in connection with later alleged evidence tampering. (330) Defendant was convicted of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g). The guideline for that offense, § 2K2.1(b)(6)(B), provides for a four-level increase if the firearm is possessed in connection with another felony. After defendant was arrested, he made jail calls expressing regret that the officers had found the firearm, because he had intended to dispose of it to conceal another prior crime. The district court enhanced defendant’s offense level under § 2K2.1(b)(6)(B) for evidence tampering under state law. The Third Circuit held that the district court erred in imposing the enhancement because the government did not show by a preponderance of the evidence that defendant engaged in evidence tampering and because the possession of the firearm had, in any event, not occurred in connection with the subsequent felony offense. U.S. v. Hester, __ F.3d __ (3d Cir. Nov. 30, 2018) No. 16-3570.
4th Circuit declines to apply categorical approach to prior offense listed in firearms commentary. (330) At defendant’s sentencing for possession of a firearm by a felon, the district court increased his offense level under § 2K2.1(a)(2), finding that his prior conviction for using a communications facility to facilitate a drug-trafficking felony under 21 U.S.C. § 843(b) was a “controlled substance offense.” On appeal, the Fourth Circuit declined to apply the “categorical approach,” noting that the commentary to §2K2.1 specifically states that § 843(b) defines a “controlled substance offense” when the underlying offense qualifies as a “controlled substance offense.” The commentary is controlling. U.S. v. Allen, __ F.3d __ (4th Cir. Nov. 28, 2018) No. 17-4308.
4th Circuit counts “consolidated judgment” in criminal history if one offense counts. (330)(504) During sentencing for possession of a firearm by a convicted felon, the district court added one point to defendant’s criminal history score based on a North Carolina “consolidated judgment.” The “consolidated judgment” was composed of two offenses, one of which was a misdemeanor and could not be counted in defendant’s criminal history. The Fourth Circuit held that the district court properly added one point to defendant’s criminal history score for the “consolidated judgment” because one of the offenses consolidated in the judgment would have independently counted. U.S. v. Allen, __ F.3d __ (4th Cir. Nov. 28, 2018) No. 17-4308.
8th Circuit finds that defendant possessed drugs during firearms offense. (330) The guideline for possession of a firearm by a convicted felon, § 2B2.1(b)(6)(B), requires a four-level enhancement if the firearm was used in connection with another felony offense. Defendant was convicted of possession of a firearm by a convicted felon. When defendant was arrested, officers found 15.14 grams of PCP in defendant’s friend’s car. An officer testified at sentencing that defendant had told the friend when arrested that the friend should put his drugs in her car. The Eighth Circuit rejected defendant’s argument that the government had not proved by a preponderance of the evidence that the he possessed the PCP. U.S. v. Murray, __ F.3d __ (8th Cir. Nov. 29, 2018) No. 17-2568.
11th Circuit reaffirms that Hobbs Act robbery under 18 U.S.C. § 924(c) is a crime of violence. (330) In U.S. v. St. Hubert, 883 F.3d 1319 (11th Cir. 2018), the Eleventh Circuit found that defendant’s Hobbs Act robbery offenses qualified as crimes of violence under both clauses of 18 U.S.C. § 924(c)(3). In Ovalle v. U.S., 905 F.3d 1231 (11th Cir. 2018) (en banc), the full court considered the “residual clause” of § 924(c)(3)(B) and held that a court could consider the “actual, real-world facts of the crime’s commission” when determining whether an offense by its nature involves a substantial risk that physical force will be used against the person or property of another. The Eleventh Circuit issued a new opinion stating that under Ovalle, defendant’s Hobbs Act robberies were crimes of violence under the residual clause in § 924(c)(3)(B). U.S. v. St. Hubert, __ F.3d __ (11th Cir. Nov. 15, 2018) No. 16-10874.
5th Circuit reaffirms conspiracy to commit Hobbs Act robbery is not a “crime of violence.” (330) Defendant was convicted of conspiracy to commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951, and using or carrying a firearm during and in relation to a “crime of violence,” in violation of 18 U.S.C. § 924(c). The term “crime of violence” is defined in 18 U.S.C. § 924(c)(3). In U.S. v. Davis, 903 F.3d 483, 484–86 (5th Cir. 2018), petition for cert. filed (Oct. 3, 2018) (No. 18-431), the Fifth Circuit found that conspiracy to commit Hobbs Act robbery is not a “crime of violence” under Section 924(c)(3) because it does not necessarily require that defendant “used, attempted to use, or threatened to use force.” In the present case, the parties agreed at oral argument that Davis required the sentence to be vacated. Accordingly, the case was remanded for resentencing. U.S. v. Lewis, __ F.3d __ (5th Cir. Nov. 1, 2018) No. 17-50526.
8th Circuit says Missouri domestic assault is not a “crime of violence.” (330) Defendant pleaded guilty to being a felon in possession of a firearm. His guidelines sentence was increased because he had a prior conviction under Missouri Revised Statutes § 565.073.1(2) for second-degree domestic assault. That offense can be committed by someone who “recklessly causes physical injury” to a family member. The Eighth Circuit noted that earlier decisions have held that Missouri’s reckless driving statute is not a “crime of violence” because it criminalizes reckless behavior. The second degree domestic violence statute contains nearly identical language, and therefore is also not a crime of violence. U.S. v. Harris, __ F.3d __ (8th Cir. Nov. 5, 2018) No. 17-2868.
1st Circuit reaffirms that Massachusetts assault with a deadly weapon is a “crime of violence.” (330) The guideline for possession of a firearm by a convicted felon, § 2K2.1, requires an enhanced offense level if the defendant was previously convicted of a “crime of violence.” Defendant had a prior conviction for assault with a deadly weapon in Massachusetts. Reaffirming earlier circuit decisions, the First Circuit held that assault with a deadly weapon under Massachusetts law is a “crime of violence.” U.S. v. Oliveira, __ F.3d __ (1st Cir. Oct. 24, 2018) No. 17-2102.
1st Circuit says drug evidence supported increase for using firearm in connection with other offenses. (330) Defendant was arrested for firearms possession in a room containing $160 in cash, 7.6 grams of marijuana in baggies, a digital scale, and a box of baggies. He pleaded guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). At sentencing, the district court enhanced his offense level by two under § 2K2.1(b)(6)(8) because he had committed the firearms offense “in connection” with another offense. The First Circuit found that the district court had not clearly erred in applying the enhancement. U.S. v. Oliveira, __ F.3d __ (1st Cir. Oct. 24, 2018) No. 17-2012.
5th Circuit reaffirms that Hobbs Act robbery is a “crime of violence.” (330) Under 18 U.S.C. § 924(c), a defendant is subject to a five-year mandatory minimum sentence if the defendant commits a “crime of violence” with a firearm. Defendant violated § 924(c) while committing a Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a). The Fifth Circuit reaffirmed earlier decisions stating that Hobbs Act robbery is a “crime of violence” under § 924(c)’s elements clause, which provides that an offense is a “crime of violence” if it “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” U.S. v. Bowens, __ F.3d __ 9th Cir. Oct. 24, 2018) No. 17-10822.
6th Circuit says Tennessee statute is “controlled substance offense” even though it includes attempts. (330) Defendant was convicted of possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g). The guideline, § 2K2.1, requires an offense level increase if the defendant was previously convicted of a controlled substance offense. Defendant had a prior conviction for selling or delivering cocaine, in violation of Tennessee Code Annotated § 39-17-417(a). Defendant argued that Tennessee drug delivery does not match the definition of controlled substance in the guidelines because the Tennessee statute includes attempting to transfer drugs, while the guidelines include only completed controlled substance offenses. The Sixth Circuit found that it had already interpreted the guidelines definition of controlled substance offenses to reach attempt, and the panel could not overrule prior decisions. U.S. v. Havis, __ F.3d __ (6th Cir. Oct. 22, 2018) No. 17-5772.
7th Circuit allows stolen firearm increase despite conviction for stolen firearm on a different count. (125)(330) Defendant pleaded guilty to possession of a firearm by a convicted felon, under 18 U.S.C. § 922(g), and possession of a stolen firearm, under § 922(j). The district court enhanced his sentence under § 2K2.1(b)(4)(A) because the firearms were stolen. Defendant argued that this was improper double counting because he had pleaded guilty to possession of a stolen firearm. The Seventh Circuit found no double counting because the enhancement applied to defendant’s conviction for possession of a firearm by a convicted felon, and the guidelines do not prohibit this enhancement. U.S. v. Shelton, __ F.3d __ (7th Cir. Oct. 3, 2018) No. 17-3084.
7th Circuit finds no double counting in firearms enhancements (125)(330) Defendants were convicted of possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g), based on a scheme to steal firearms from a cargo train. The district court imposed separate enhancements under guideline § 2K2.1 subsection (b)(4)(A) for stolen firearms, subsection (b)(5) for trafficking of firearms, and subsection (b)(6)(B) for possessing a firearm in connection with another felony offense. The Seventh Circuit rejected defendant’s argument that it was improper double counting to impose all three enhancements, finding that each enhancement addressed a different aspect of defendants’ conduct. U.S. v. Shelton, __ F.3d __ (7th Cir. Oct. 3, 2018) No. 17-3084.
6th Circuit says that aiding and abetting Hobbs Act robbery is a “crime of violence.” (330) Defendant was convicted of multiple counts of using or carrying a firearm during several Hobbs Act robberies, in violation of 18 U.S.C. § 924(c). The district court held that aiding and abetting a Hobbs Act robbery is a “crime of violence” under § 924(c), and the Sixth Circuit affirmed. The court of appeals held that aiding and abetting a Hobbs Act robbery is a “crime of violence” under the first clause of § 924(c), which states that a “crime of violence” is any felony that has as an element the use, attempted use, or threatened use of physical force against the person or property of another. U.S. v. Richardson, __ F.3d __ (6th Cir. Oct. 11, 2018) No. 17-2157.
8th Circuit finds that Missouri armed criminal action is a “crime of violence” under former “residual clause.” (330) (504)(520) At defendant’s sentencing for firearms and other offenses, the district court added one criminal history point under §4A1.1(e), finding that “armed criminal action” under Missouri Revised Statute § 571.015(1) was a “crime of violence” as defined by the former “residual clause” of the career offender guideline, §4B1.2. The statute makes it a crime to use a firearm or deadly weapon in the commission of a felony. The Eighth Circuit affirmed, holding that the Missouri law involved conduct that presented a “serious potential risk of physical injury to another” and thus was a “crime of violence” under the former residual clause of § 4B1.2(a). The Sentencing Commission deleted the residual clause of § 4B1.2(a) effective August 1, 2016, but that amendment is not retroactive, and thus did not apply to this defendant. Moreover, the Supreme Court in Beckles v. U.S., 137 S.Ct. 886, 890 (2017) upheld the guidelines’ residual clause. U.S. v. Long, __ F.3d __ (8th Cir. Oct. 12, 2018) No. 16-1419.
1st Circuit upholds double counting number of firearms and possessing stolen firearms. (125) (330) After defendant confessed to multiple burglaries, police recovered from him various stolen items, including nine firearms. Defendant pled guilty to being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1). The district court applied a four-level increase for the number of firearms, § 2K2.1(b)(1)(B) and a two-level increase for possessing stolen firearms, § 2K2.1(b)(4)(A). Defendant argued for the first time on appeal that applying both enhancements constituted improper double counting. The First Circuit disagreed. There was no basis to find an “implied prohibition” on double counting here. U.S. v. Brake, __ F.3d __ (1st Cir. Sept. 14, 2018) No. 17-1979.
8th Circuit says North Dakota aggravated assault was not a crime of violence. (330)(520) Defendant was convicted of being a felon in possession of a firearm. The district court applied an enhanced offense level under § 2K2.1(a)(4)(A), finding that defendant’s previous North Dakota conviction for aggravated assault was a “crime of violence.” The Eighth Circuit reversed, ruling that the aggravated assault was not a crime of violence under either the “force” clause or the “enumerated offenses” clause in § 4B1.2(a). Under the force clause, the offense must have “as an element the use, attempted use, or threatened use of physical force.” However, N.D. Cent. Code Ann. § 12.1-17-02(1)(a) required only a reckless act that causes bodily injury, and included reckless driving. A statute that criminalizes reckless driving cannot satisfy the force clause. Aggravated assault is an enumerated offense under § 4B1.2(a)(2), but subsection (a) of the North Dakota statute extended to reckless behavior, while the generic offense does not. Three other circuits agree that ordinary recklessness does not satisfy the mental-state requirement for generic aggravated assault. The panel found Fifth Circuit’s contrary ruling unpersuasive. U.S. v. Schneider, __ F.3d __ (8th Cir. Sept. 28, 2018) No. 17-3034.
1st Circuit says government’s reliance on number of firearms to support higher drug sentence did not breach plea agreement. (330)(790) Defendant pled guilty to possessing firearms and possession of cocaine. In his plea agreement, the government agreed to recommend a 60-month sentence for the firearm count, and a sentence at the high end of the 6-12 month guideline range for the drug count. At sentencing, the government requested the 60-month sentence for the firearm count, and encouraged the court to sentence defendant near the top of the 6-12 month range for the drug count based on “the sheer volume and quantity of firearms that were seized.” The district court sentenced defendant to 84 months on the firearm count, and 12 months on the drug count. Defendant argued for the first time on appeal that the government breached the plea agreement by implicitly arguing that the agreed-upon 60-month sentence for the weapons charge was too low. The First Circuit disagreed. The government did not lament the plea agreement’s terms, and stated its recommendation on the weapons charge without any reservation. It confirmed to the court that its reference to defendant’s weapons went only to the drug charge, and reiterated that it was recommending a 60-month sentence on the firearm count. U.S. v. Irizarry-Rosario, __ F.3d __ (1st Cir. Sept. 10, 2018) No. 17-1117.
9th Circuit says Washington robbery is not a “crime of violence.” (330) Defendant was convicted of possession of a firearm by a felon, in violation of 18 U.S.C.§ 922(g)(1). The guideline level for that offense is increased if defendant has a prior conviction for a “crime of violence,” as defined in § 4B1.2. Defendant had a prior conviction under Washington Revised Code § 9A-56-190 for first-degree robbery. The Ninth Circuit held that first-degree robbery in Washington was not categorically a “crime of violence” when defendant was sentenced because it encompassed a broader range of conduct than the offenses listed in § 4B1.2. U.S. v. Peterson, __ F.3d __ (9th Cir. Sept. 4, 2018) No. 17-30084.
9th Circuit finds Washington drug trafficking is not a categorical match for generic offense. (330)(540) Defendant was convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). He had three prior convictions under Washington Revised Code § 69.50.401 for unlawful delivery of a controlled substance. Based on these prior convictions, the district court sentenced him to 15 years under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). The Ninth Circuit held that a violation of Washington Revised Code § 69.50.401 is not a categorical match for the generic offense of drug trafficking because Washington’s accomplice liability is broader than the generic offense. For that reason, , defendant should not have been sentenced under the ACCA. U.S. v. Franklin, __ F.3d __ (9th Cir. Sept. 13, 2018) No. 17-30011.
8th Circuit rejects “another felony” increase based on user quantity of crack in defendant’s vehicle. (330) Defendant was arrested driving a vehicle with a shotgun and ammunition in the trunk. On the floorboard near his passenger was a user-amount of crack cocaine. Defendant was convicted of being a felon in possession of a firearm, and the court increased his sentence under § 2K2.1(b)(6)(B) for possessing a firearm “in connection with another felony offense.” The Eighth Circuit reversed, finding insufficient evidence under Note 14(A) that the gun “facilitated, or had the potential of facilitating” defendant’s drug possession. The shotgun was locked in the trunk, and there was no evidence linking it to the cocaine. Moreover, there was no direct evidence that defendant, rather than his passenger, possessed the cocaine. U.S. v. Walker, __ F.3d __ (8th Cir. Aug. 17, 2018) No. 17-1680.
8th Circuit holds New York attempted second-degree robbery was crime of violence. (330) At sentencing, the district court found that defendant’s prior New York attempted second-degree robbery conviction was a crime of violence, warranting a base offense level of 20 under § 2K2.1(a)(4)(a). The Eighth Circuit agreed that it was a crime of violence under the “force” clause. In U.S. v. Swopes, 886 F.3d 668 (8th Cir. 2018), the en banc court held that Missouri second-degree robbery, under a statute almost identical to the New York statute, was a violent felony under the Armed Career Criminal Act (ACCA). Similar to Missouri’s statute, New York’s second-degree robbery statute contained “forcibly steals” as an element. See N.Y. Penal Law § 160.10, and the two statutes define “forcibly steals” the same in all material respects. Therefore, the district court did not err in determining that New York attempted second-degree robbery was a crime of violence. U.S. v. Williams, __ F.3d __ (8th Cir. Aug. 14, 2018) No. 17-1632.
2nd Circuit says “controlled substance offense” refers only to substances controlled by federal law. (330) (520) The district court found that defendant’s prior conviction under New York Penal Law (NYPL) § 220.31 for fifth-degree criminal sale of a controlled substance qualified as a “controlled substance offense,” and applied an enhanced offense level under § 2K2.1(a)(2). Defendant argued that the New York law was substantively broader than its federal counterpart, since NYPL § 220.31 prohibited the sale of Human Chorionic Gonadotropin (HCG), a substance not controlled under federal law. The Second Circuit held that the term “controlled substance” in § 4B1.2(b) included only substances controlled by federal law under the Controlled Substances Act (CSA). Although a “controlled substance offense” includes an offense “under federal or state law,” that does not mean that the substance at issue may be controlled under federal or state law. Thus, the § 2K2.1(a)(2) increase was improper here. U.S. v. Townsend, __ F.3d __ (2d Cir. July 23, 2018) No. 17-757-cr.
1st Circuit rejects claim that court improperly focused on negative factors at sentencing. (330)(742) After pleading guilty in two separate cases, defendant was sentenced first for possessing ammunition as a convicted felon (upward variance from 21-27 month guideline range to 48 months) and then for possessing a machine gun (27 months, at the top of his 21-27-month guideline range). He challenged both sentencing courts’ uses of the § 3553(a) factors, but the First Circuit found no error. Both courts were explicit about having arrived at their sentencing decisions after considering the § 3553(a) factors. Although both sentencing courts emphasized factors that favored a harsher sentence, they also considered potential mitigating factors, such as defendant having completed a GED, having a dependent, and having a history of substance abuse. U.S. v. Caballero-Vázquez, __ F.3d __ (1st Cir. July 18, 2018) No. 17-1144.
6th Circuit holds Kentucky assault under extreme emotional disturbance is crime of violence. (330)(520) Defendant pled guilty to possessing an explosive as a felon. The district court found that his prior Kentucky conviction for second-degree assault under extreme emotional disturbance was a crime of violence. This resulted in an offense level of 20 under § 2K1.3(a)(2). The Sixth Circuit upheld the crime of violence finding, because the plain language of the Kentucky assault under extreme emotional disturbance statute, Ky. Rev. Stat. § 508.040, required the defendant to have “intentionally” caused a physical injury in committing the underlying assault. Under U.S. v. Colbert, 525 F. App’x 364, 368 (6th Cir. 2013) and U.S. v. Knox, 593 F. App’x 536 (6th Cir. 2015), “extreme emotional disturbance” did not negate the intent elements of first or second degree assault under Kentucky law. U.S. v. Maynard, __ F.3d __ (6th Cir. July 3, 2018) No. 17-6057.
8th Circuit rules Missouri second degree domestic assault was crime of violence. (330)(520) Defendant pled guilty to being a felon in possession of a firearm. At sentencing, the district court found that defendant’s prior Missouri conviction for second degree domestic assault, Mo. Rev. Stat. § 565.073, was a crime of violence, and increased his offense level to 20 under § 2K2.1(a)(4)(A). The Eighth Circuit affirmed. This circuit recently held, in U.S. v. Phillips, 853 F.3d 432 (8th Cir. 2017) that § 565.073 was a divisible statute, and that the defendant’s convictions for violating § 565.073.1(1) were ACCA violent felonies. Because the statute was divisible, it was proper to use the modified categorical approach and examine underlying documents. The First Amended Information tracked the language of § 565.073.1(1), and charged that defendant “attempted to cause serious physical injury to [the victim] by striking her with an automobile and [the victim] … was the girlfriend of the defendant.” Only § 565.073.1(1) criminalized attempts. This state court document conclusively established that defendant was convicted of violating § 565.073.1(1), a crime of violence under § 4B1.2(a)(1)’s “force” clause. U.S. v. Doyal, __ F.3d __ (8th Cir. July 5, 2018) No. 17-1320.
10th Circuit upholds increase for large capacity magazines despite criticism of enhancement. (330) (742) Defendant was convicted of unlawfully possessing a gun. On appeal, he challenged his 50-month sentence on the ground that it was substantively unreasonable criticizing § 2K2.1(a)(4)(B)’s enhancement for large capacity magazines. The Tenth Circuit rejected the argument, noting that the Sentencing Commission had authority to make its own policy judgments, so the guideline enhancement for possession of large-capacity magazines was not undermined by the expiration of a Congressional ban on possession of semiautomatic assault weapons. U.S. v. Ibanez, 893 F.3d 1218 (10th Cir. 2018).
8th Circuit upholds finding that police recovered eight firearms attributable to defendant. (330) Defendant was convicted of firearms related charges. The district court held defendant accountable for all eight firearms recovered by law enforcement: seven retrieved from co-defendant Wingler’s apartment, and one from a car defendant was driving at the time of his arrest. A man whose home had been burglarized identified the recovered weapons as the guns stolen from his home earlier. Wingler testified that the firearms were ones he received from defendant. The Eighth Circuit upheld an increase under § 2K2.1(b)(1)(B) for an offense involving 8-24 firearms. Seven firearms were in Wingler’s apartment, and the eighth was in the car defendant was driving. In addition, law enforcement saw defendant approach Wingler’s apartment complex on the day the firearm’s were recovered. There was additional testimony that Wingler obtained all seven firearms from defendant at his tattoo shop, and that the two discussed the sale of the firearms via text. Co-conspirator Marshall testified about defendant’s appearance at Wingler’s apartment demanding his money and guns. U.S. v. Hemsher, __ F.3d __ (8th Cir. June 25, 2018) No. 17-50392.
8th Circuit holds that “another felony offense” refers to underlying firearm offense, not all firearms offenses. (330) A homeowner reported to police that his home had been burglarized and that two gun safes, several guns, and ammunition were missing. The weapons were eventually recovered, and defendant and three co-defendants were convicted of firearm theft and possession charges. The district court found evidence that defendant intended to sell the stolen firearms for profit, and applied a four-level enhancement under § 2K2.1(b)(6)(B) for using or possessing a firearm in connection with “another felony offense,” i.e., trafficking firearms. Note 14(C) defines “another felony offense” as “any federal, state, or local offense, other than the explosive or firearms possession or trafficking offense….” The Eighth Circuit found no error. Under U.S. v. Jackson, 633 F.3d 703 (8th Cir. 2011), and other cases, Note 14(C) does not exclude “any” firearms possession offense—it excludes only the underlying offense of conviction. U.S. v. Hemsher, __ F.3d __ (8th Cir. June 25, 2018) No. 17-50392.
D.C. Circuit holds attempted assault with a dangerous weapon under D.C. law was a crime of violence. (330) In computing defendant’s guidelines range for unlawful possession of a firearm, the district court found that his previous District of Columbia conviction for attempted assault with a dangerous weapon, 22 D.C. Code § 402, qualified as a “crime of violence” under guidelines § 2K2.1(a)(3). The D.C. Circuit affirmed, finding that settled circuit precedent established that defendant’s earlier conviction fell within the “elements” clause, and thus qualified as a crime of violence. Case law has identified the elements of the D.C. offense as: (1) an attempt, with force or violence, to injure another, or a menacing threat, which may or may not be accompanied by a specific intent to injure; (2) the apparent present ability to injure the victim; (3) a general intent to commit the acts which constitute the assault; and (4) the use of a dangerous weapon in committing the assault. Under U.S. v. Redrick, 841 F.3d 478 (D.C. Cir. 2016), the fourth element, use of a dangerous weapon, transformed the threat of force present into a threat of violent force. U.S. v. Brown, __ F.3d __ (D.C. Cir. June 15, 2018) No. 15-3066.
1st Circuit agrees that attempted murder under Puerto Rico law was a crime of violence. (330) Defendant pled guilty to being a prohibited person in possession of a firearm. The district court found that his prior Puerto Rico conviction for attempted murder was a crime of violence, resulting in an enhanced offense level under § 2K2.1(a)(4). The First Circuit affirmed. Under the categorical approach, a prior conviction qualifies as a “crime of violence” so long as the elements of the prior offense encompass no more conduct than do the elements of the “generic” version of an offense enumerated in the guidelines. At the time of defendant’s conviction for attempted murder, Puerto Rico defined “murder” as “the killing of a human being with malice aforethought.” The panel rejected defendant’s argument that this definition was broader than the generic offense of “murder.” Attempting to commit a crime of violence is itself a crime of violence. The panel also concluded that Puerto Rico defined “attempt” at the time of defendant’s conviction in a way that matched the generic definition of attempt. U.S. v. Benítez-Beltrán, __ F.3d __ (1st Cir. June 13, 2018) No. 17-1161.
1st Circuit upholds variance despite district court’s mention of community considerations. (330)(741) Defendant pled guilty to being a felon in possession of a firearm, and unlawful possession of a machine gun. His guideline range for both counts was 37-46 months, but the district court sentenced him to 60 months on each count, to be served concurrently. Defendant argued that the district court improperly relied on community considerations and in doing so, failed to explain why an upward variance was warranted. The First Circuit upheld the sentence. Although the sentencing judge considered community considerations, he did not ignore defendant’s individual circumstances, nor did he fail to justify the variance. Previous cases have upheld variances on simi-lar facts. See, e.g. U.S. v. Garay-Sierra, 885 F.3d 76 (1st Cir. 2018); U.S. v. Fuentes-Echevarria, 856 F.3d 22 (1st Cir. 2017) Given these precedents, the district court did not err. U.S. v. Laureano-Pérez, __ F.3d __ (1st Cir. June 8, 2018) No. 16-2399.
(330) U.S. v. Williams, 888 F.3d 1126 (10th Cir. Apr. 20, 2018), superseded by U.S. v. Williams, __ F.3d __ (10th Cir. June 15, 2018) No. 17-3071.
8th Circuit agrees that defendant was responsible for at least 200 firearms involved in export scheme. (330) Defendant pled guilty to charges based on a scheme to export firearms to Lebanon. The district court applied a ten-level enhancement under § 2K2.1(b)(1)(E) for an offense involving 200 or more firearms. Defendant argued he was responsible for less than 199 firearms in three shipments: March 2014, August 2014, and May 2015. The Eighth Circuit affirmed. Defendant was responsible for at least one additional firearm in the co-conspirators’ March 2015 shipment. When the serial numbers from the March 2015 shipment were compared with the purchase logs, it was discovered that one of the firearms in the shipment had been purchased by defendant, thus increasing defendant’s firearms to at least 200. Defendant also continued to collaborate with co-conspirator Bassem after their January 2015 verbal agreement to discontinue working together. Defendant provided Bassem with the name of a customs broker in Lebanon who would be able to assist Bassem in shipping the March 2015 container. U.S. v. Zeaiter, __ F.3d __ (8th Cir. June 11, 2018) No. 16-4066.
3rd Circuit upholds finding that gun defendants were casing nearby businesses with intent to rob. (330) Defendant was convicted of being a felon in possession of a firearm. The district court found that defendant was involved in a conspiracy with co-defendant Foster to commit robbery on the day they were arrested, and applied a § 2K2.1(b)(6)(B) enhancement for using a firearm in relation to another felony offense. The court found that the two defendants were casing a nearby business with the intent to rob it. The Third Circuit affirmed the enhancement. Foster was present on February 5th and 6th to case stores in the same shopping center. Video surveillance showed that Foster was also at the shopping center on January 19 casing businesses. Then, on February 6, defendant and Foster were sitting in a stolen car in the same shopping center parking lot, for “no apparent reason” and with “almost nothing with them other than useful tools for a robbery, including the two loaded weapons, the backpack along with the two rolls of duct tape, [and] the gloves[.]” Moreover, defendant fled the scene on February 6 after “realiz[ing] the police were there.” U.S. v. Foster, __ F.3d __ (3d Cir. May 30, 2018) No. 16-3650.
3rd Circuit agrees that gun found at arrest was same gun used during previous crimes. (330) Defendant was convicted of being a felon in possession of a firearm. The district court applied a § 2K2.1(c)(1) increase for possessing a firearm “in connection with the commission or attempted commission of another offense.” Defendant’s PSR had concluded that defendant had used the same pistol recovered during his Delaware arrest to commit a string of robberies and a carjacking in Pennsylvania. The Third Circuit upheld the § 2K2.1(c)(1) enhancement, finding sufficient evidence that the gun recovered during defendant’s arrest in Delaware was the same gun he used during robberies and a carjacking in Pennsylvania. A relatively short time separated the crimes, and surveillance video from the Pennsylvania robberies indicated that the gun used in those crimes was the same gun recovered in Delaware. U.S. v. Foster, __ F.3d __ (3d Cir. May 30, 2018) No. 16-3650.
9th Circuit rules Nevada assault with a deadly weapon is a “crime of violence.” (330)(520) After defendant pleaded guilty to being a felon in possession of a firearm, the district court enhanced his sentence because he had previously been convicted of a “crime of violence,” i.e., assault with a deadly weapon under Nevada Rev. Stat. § 200.471. Guideline section 4B1.2(a) defines “crime of violence” in part to mean a felony offense that “has as an element the use, attempted use, or threatened use of physical force against the person of another.” The Ninth Circuit held that assault with a deadly weapon in Nevada is a “crime of violence” under this definition. U.S. v. Edling, __ F.3d __ (9th Cir. June 8, 2018) No. 16-10457.
9th Circuit holds Nevada robbery is not a “crime of violence.” (330)(520) Defendant pleaded guilty to being a felon in possession of a firearm. The guideline for that offense, § 2K2.1(a), sets the offense level depending on whether defendant had a prior conviction for a “crime of violence.” Section 4B1.2(a) defines “crime of violence” to include both “robbery” and “extortion.” In U.S. v. Becerril-Lopez, 541 F.3d 881 (9th Cir. 2008), the court held that robbery under California law (which is largely identical to Nevada law) was either generic robbery or generic extortion and, accordingly, reached threats to property. However, on August 1, 2016, the Sentencing Commission added a definition of “extortion” to mean “obtaining something of value from another by the wrongful use of (A) force, (B) fear of physical injury, or (C) threat of physical injury.” The Ninth Circuit held that this definition of “extortion” did not reach threats to property. For that reason, the court held that robbery under Nevada law is no longer a “crime of violence” under the enumerated offenses in § 4B1.2(a). U.S. v. Edling. __ F.3d __ (9th Cir. June 8, 2018) No. 16-10457.
9th Circuit holds Nevada coercion is not a “crime of violence.” (330)(520) In imposing sentence on defendant for being a felon in possession of a firearm, the district court held that defendant’s prior conviction of coercion, in violation of Nevada Rev. Stats § 207.190, is a “crime of violence” under § 4B2.1(a). That section defines “crime of violence” in part to mean any felony offense that “has as an element the use, attempted use, or threatened use of physical force against the person of another.” The Ninth Circuit held that felony coercion in Nevada is not a “crime of violence” under this definition. U.S. v. Edling, __ F.3d __ (9th Cir. June 8, 2018) No. 16-10457.
10th Circuit reverses finding that defendant knew gun transferee was a “prohibited person.” (330) Defendant was convicted of charges stemming from his straw purchase of two firearms for a felon working as a confidential informant (CI) for the government. The district court applied a § 2K2.1(b)(5) enhancement for trafficking in firearms knowing or having a reason to believe that the transferee was a specific kind of unlawful possessor – one with a felony conviction for a crime of violence, controlled-substance offense, or a misdemeanor domestic violence offense. The Tenth Circuit reversed, holding that the government did not establish that defendant had reason to believe that the CI fell into the “narrow category of prohibited possessors.” The fact that a percentage of defendant’s expected customer base might have a qualifying crime-of-violence conviction was insufficient to support the enhancement. The proper focus was on what defendant knew about the specific transferee, not whether by the law of averages any given customer might qualify as an unlawful possessor under § 2K2.1. U.S. v. Francis, __ F.3d __ (10th Cir. June 5, 2018) No. 16-1449.
1st Circuit says 161-year firearms sentence was not cruel and unusual. (140)(330) Defendant acted as armed security for six sham drug deals that were part of an FBI sting operation, and was convicted of various drug and firearms crimes. He argued that his resulting combined sentence 161 years and 10 months violated the Eighth Amendment’s prohibition against cruel and unusual punishment. The bulk of the sentence (130 years), was the result of minimum sentences required by statute for defendant’s six firearms convictions under 18 U.S.C. §924(c)(1)(C) (5 years for his first §924 conviction, and 25-year consecutive sentences for each of the five subsequent convictions). The First Circuit found no Eighth Amendment violation. The judge was guided by and correctly employed a sentencing scheme that was written into statute, a statute that made no distinction between cases involving real versus sham cocaine. At each of the six stings, defendant repeatedly and voluntarily showed up armed and provided security services for what he believed to be illegal transactions between real cocaine dealers. The crime of possessing a firearm in furtherance of such a drug trafficking offense was a grave one, and Congress has made a legislative determination that it requires harsh punishment. Judge Torruella dissented. U.S. v. Rivera-Ruperto, __ F.3d __ (1st Cir. Jan. 13, 2017) No. 12-2364.
1st Circuit upholds gun trafficking increase where recipient intended to use weapon unlawfully. (330) Defendant pled guilty to being a felon in possession of a firearm, and received an increase under §2K2.1(b)(5) for trafficking in firearms. Under Note 13 to §2K2.1, the enhancement in part requires defendant knew or had reason to believe that the recipient’s possession or receipt of the firearm would be unlawful, or that the recipient intended to use or dispose of the firearm unlawfully. The district court found that during one transaction, the cooperating witness who received the gun told defendant that the witness would remove the serial number from the firearm. In addition, during a second transaction, the gun sold was a sawed-off shotgun, which is generally unlawful to possess. The First Circuit held that the court did not plainly err in applying the trafficking enhancement. The court could properly conclude that defendant knew or should have known that the removal of a serial number was indicative of anticipated criminal activity. As for the sawed off shotgun, such a weapon is illegal to possess in all but the most unusual circumstances, and there were no facts to indicate that such circumstances were present here. U.S. v. Taylor, 845 F.3d 458 (1st Cir. 2017).
8th Circuit upholds finding that defendant had illegally possessed firearms “over decades.” (330) Defendant was convicted of being a felon in possession of firearm. The district judge applied an enhanced offense level under §2K2.1(a)(4)(A) based on defendant’s 1985 drug conviction. Defendant argued that the 1985 conviction fell outside the 15-year window for prior convictions in §2K2.1 n.10 and §§4A1.1 and 4A1.2. Because defendant was released from state custody in October 1988, the “instant offense” must have commenced no later than October 2003 to bring the prior conviction within its scope. The indictment charged that defendant possessed firearms and ammunition in 2010. The Eighth Circuit held that the court properly relied on defendant’s 1985 conviction, upholding the district court’s finding that that defendant had illegally possessed firearms “over decades.” While the indictment charged only conduct occurring in 2010, the evidence showed that defendant possessed weapons and ammunition much earlier. A 1996 prenuptial agreement signed by defendant and his then-fiancée, described defendant’s assets as including 15 pistols, nine shotguns, and 14 rifles. The government also introduced a document drafted by defendant in 2001 in which he purported to transfer other firearms. U.S. v. Jones, 844 F.3d 636 (8th Cir. 2016).
8th Circuit affirms treating Iowa Domestic Abuse-Strangulation as a crime of violence. (330) Defendant pled guilty to possessing a firearm after a domestic abuse conviction, in violation of 18 U.S.C. §922(g)(9). He challenged for the first time on appeal the application §2K2.1(b)(6)(B), which provides for a base offense level of 20 if the defendant has a prior felony conviction for a crime of violence. The Eighth Circuit held that the district court did not plainly err in treating defendant’s Iowa conviction for Domestic Abuse-Strangulation, in violation of Iowa Code §708.2A(2)(d), as a crime of violence. The categorical approach applied, because the offense included “the use of violent force as an element ‘since its impossible to cause bodily injury without using force capable of producing that result.’“ U.S. v. Parrow, 844 F.3d 801 (8th Cir. 2016).
8th Circuit upholds “another felony offense” increase based on Iowa concealed weapon offense. (330) Defendant pled guilty to possessing a firearm after a domestic-abuse conviction. The district court applied an increase under §2K2.1(b)(6)(B), for “us[ing] or possess[ing] any firearm or ammunition in connection with another felony offense.” Under Note 14(C), “another felony offense” is “any Federal, state, or local offense, other than the … firearms possession or trafficking offense, punishable by imprisonment for a term exceeding one year, regardless of whether a criminal charge was brought, or a conviction obtained.” Here, the other felony offense was Iowa Code §724.4(1), which prohibits carrying concealed firearms. Under U.S. v. Walker, 771 F.3d 449 (8th Cir. 2014), Iowa Code §724.4(1) “does not fall within the narrow Note 14(C) exclusion for ‘the … firearms possession … offense’“ because it is possible to be a felon in possession under 18 U.S.C. §922(g) without committing the Iowa firearms offense. The Eighth Circuit found Walker controlled, and upheld the enhancement. U.S. v. Parrow, 844 F.3d 801 (8th Cir. 2016).
7th Circuit says gun accepted as collateral from drug buyer did not facilitate drug transaction. (330) Defendant pleaded guilty to being a felon in possession of a firearm, a Glock pistol. The Glock came from a person who pawned it to defendant pending payment for synthetic marijuana he purchased from defendant. A few days after the transaction, defendant sold the gun to a confidential informant for $300, allegedly with his marijuana customer’s consent. Defendant “had not used the gun or even touched it except for carrying it to, and later . . . from, [his] garage.” The judge increased his offense level by four under §2K2.1(b)(6)(B), for possessing the firearm in connection with another felony offense—distributing an illegal drug. The Seventh Circuit reversed, ruling that defendant did not use the gun to facilitate the drug transaction. In the gun’s absence, defendant might have obtained some other collateral from the buyer. Moreover, there was no evidence that the synthetic marijuana that defendant sold was at the time a “scheduled” drug. Although the court varied downward to a sentence within the guideline range without the enhancement, the judge’s remarks suggested that his real concern was that the gun had been used in an illegal-drug transaction. The panel could not “see the legal significance of the gun, taken as collateral, secreted in the garage, and then sold.” U.S. v. Gates, 845 F.3d 310 (7th Cir. 2017).
10th Circuit agrees Oklahoma assault and battery with a dangerous weapon was crime of violence. (330) (520) Defendant was convicted of firearms charges and originally sentenced to 110 months. The Tenth Circuit remanded for resentencing because his sentence was based in part on the residual clause of §4B1.2(a)(2). On remand, the district court reduced the sentence to 87 months. Defendant again appealed, arguing that the district court improperly treated his prior Oklahoma state conviction for assault and battery with a dangerous weapon as a “crime of violence” under §4B1.2(a)(1) and enhanced his offense level under §2K2.1(a)(4)(A). The Tenth Circuit found no error. The Oklahoma statute, Okla. Stat. tit. 21, §645, was divisible, and listed multiple, alternative elements. The charging document made clear that defendant was charged under the first alternative part of §645 (“assault, battery, or assault and battery” with a sharp or dangerous weapon). Regardless of the type of “dangerous weapon” used by a particular defendant, the use of a “dangerous weapon” during an assault or battery always “constitutes a sufficient threat of force to satisfy the elements clause” of §4B1.2(a)(1). U.S. v. Taylor, 843 F.3d 1215 (10th Cir. 2016).
1st Circuit orders supplementing record to decide if Massachusetts resisting arrest was crime of violence. (330)(520) Defendant was convicted of being a felon in possession of a firearm. The district court applied an enhanced offense level under §2K2.1(a)(2) based in part on its finding that his prior Massachusetts convictions for resisting arrest, Mass. Gen. Laws ch. 268, §32B(a), and for assault and battery with a dangerous weapon (ABDW), id. ch. 265, §15A(b), were both crimes of violence under the residual clause. On appeal both parties agreed that neither offense was listed in the definition of crime of violence in §41.2(a), and that under Johnson v. U.S., __ U.S. __, 135 S. Ct. 2551 (2015), the residual clause of §4B1.2(a) was unconstitutionally vague. The First Circuit noted that under existing precedent, subsec¬tion (1) of the Massachusetts resisting arrest offense was a crime of violence under the force clause, and remanded so the government would have the opportunity to supple¬ment the record with documents that would establish whether his conviction fell under subsection (1). It further held that defendant’s ABDW offense was divis¬ible, and on remand directed the court to determine whether section (1) of the Massachusetts ABDW offense was also a crime of violence. U.S. v. Tavares, 843 F.3d 1 (1st Cir. 2016).
8th Circuit says error in finding that Missouri second-degree robbery was crime of violence was harmless. (330)(520) Defendant pled guilty to firearms charges. The court found that defendant’s prior Missouri conviction for second-degree robbery, in violation of Mo. Rev. Stat. §569.030, was a crime of violence, and appli¬ed an enhancement under §2K2.1(a)(4). This resulted in a guidelines range of 46-57 months, but the court varied upward to 75 months. The court explained that it would have imposed the same sentence even if it had concluded that the Missouri second-degree robbery conviction was not a crime of violence, highlighting the dangerous na¬ture of the crime and defendant’s particularly violent criminal history. While defendant’s appeal was pending, the Eighth Circuit decided U.S. v. Bell, 840 F.3d 963 (2016), which held that a conviction for second-degree robbery in Missouri does not trigger the §2K2.1 enhancement. Here, the Eighth Circuit held that any error in finding that Missouri second-degree robbery was a crime of violence was harmless. The district court varied upward after engaging in a thorough discussion of the §3553(a) factors, and concluded that it would impose the same sentence, even if it sustained all of defendant’s objections. U.S. v. Dace, 842 F.3d 1067 (8th Cir. 2016).
[Editor’s Note: Cases interpreting the phrases “crime of violence,” “violent felony,” “controlled substance offense,” and the like can be found in this service under firearms (330), immigration (340), careethe district court’s finding that defendant had two prior felony convictions for a crime of violence. Defendant challenged this enhancement for the first time on appeal, and the First Circuit remanded for reconsideration in light of the Supreme Court’s decision in Descamps v. U.S., __ U.S. __, 133 S. Ct. 2276 (2013). Descamps established that in the case of an indivisible statute, such as the burglary statute here, the facts surrounding a particular prior conviction cannot qualify it as a predicate offense if the statute itself sweeps too broadly. The district court’s approach was inconsistent with Descamps because it relied on the factual allegations in defendant’s PSR rather than addressing whether the Puerto Rico burglary statute required unlawful entry as an element of the offense, as does generic burglary. As for defendant’s robbery conviction, Descamps also required a remand. U.S. v. Castro-Vazquez, __ F.3d __ (1st Cir. Sept. 4, 2015) No. 13-1508.
8th Circuit says Missouri second-degree robbery was not a crime of violence. (330)(520) Defendant pled guilty to being a felon in possession of a firearm. The district court increased his sentence based on its finding that his prior Missouri conviction for second-degree robbery was a crime of violence under §2K2.1(a)(4)(A). The Eighth Circuit reversed. Missouri courts have held that Mo. Rev. Stat. §569.030.1 defines an indivisible crime containing two generic elements: “stealing and the use of actual or threatened force.” However, the amount of physical force required for a person to be convicted of second-degree robbery in Missouri does not “necessarily” rise to the level of physical force required for a crime of violence under the guidelines. Under Johnson v. U.S., 559 U.S. 133 (2010), “physical force” means “violent force—that is, force capable of causing physical pain or injury to another person.”. In Missouri, a defendant can be convicted of second-degree robbery when he has physical contact with a victim but does not necessarily cause physical pain or injury. U.S. v. Bell, 840 F.3d 963 (8th Cir. 2016).
5th Circuit finds Texas assault was crime of violence. (330)(520) Defendant pled guilty to being a felon in possession of a firearm. At sentencing, the district court found that defendant’s prior assault conviction, under Texas Penal Code §22.01(a)(1), (b)(2)(B), was a crime of violence under §4B1.2(a), resulting in an increase under §2K2.1(a)(3). Defendant argued that the Texas offense could not be a crime of violence because the statute allowed conviction based on a “reckless” mens rea. He argued that his guilty plea must be construed as a plea to the least culpable conduct, i.e., recklessness. The Fifth Circuit rejected the argument, concluding that the Texas statute has as an element “the use, attempted use, or threatened use of physical force against the person of another,” within the meaning of §4B1.2(a)(1). The offense was not divisible based on defendant’s mental state. U.S. v. Howell, __ F.3d __ (5th Cir. Sept. 22, 2016) No. 15-10336.
7th Circuit says Wisconsin burglary convictions were not crimes of violence. (330) In separate cases consolidated on appeal, defendants were convicted of firearms offenses, and received an enhancement under §2K2.1(a) based on prior Wisconsin convictions for burglary, which the district courts had found were crimes of violence. Wisconsin defines burglary more broadly than the guidelines, applying it to burglary of a “building or dwelling.” WIS. STAT. §943.10(1m)(a). The judges in both cases found that the charging documents charged burglary of a dwelling, so the judges applied a higher offense level under §2K2.1(a). The Seventh Circuit reversed, ruling that under U.S. v. Mathis, __ U.S. __, 136 S.Ct. 2243 (2016), a statute is considered “divisible” only if it creates multiple offenses by setting forth alter¬native elements. The Wisconsin burglary statute was not divisible, because it sets forth alternative means of satisfying the location element of the state’s burglary offense, not separate elements. The elements of the crime “cover¬[ed] a greater swath of conduct” than the elements of the guidelines offense, so defendants’ burglary convictions could not serve as predicate offenses under §2K2.1(a). U.S. v. Edwards, 836 F.3d 831 (7th Cir. 2016).
1st Circuit affirms 48-month sentence for possession of machinegun. (330)(741) Defendant pled guilty to unlawful possession of a machinegun, in violation of 18 U.S.C. §922(o). Defendant’s PSR calculated a guideline range of 30-37 months. However, it also noted Puerto Rico’s high firearms and violent crime rate, so the offense might be more serious in Puerto Rico than the Sentencing Commission considered in formulating the guidelines, and suggested that the district court could vary upward on this basis. The district court sentenced defendant to 48 months, and the First Circuit found the sentence procedurally and substantively reasonable. The judge clearly considered the §3553(a) factors, and noted that defendant not only possessed a machinegun, but also fired it during an altercation and put others at risk. The judge explained the rationale for the upward variance, explicitly noting the significance of deterrence given Puerto Rico’s distinct difficulties in curtailing its high incidence of gun-related crimes. Given the statutory maximum of ten years, the the 48-month sentence was substantively reasonable. U.S. v. Santos-Rivera, __ F.3d __ (1st Cir. Aug. 16, 2016) No. 14-2014.
7th Circuit, en banc, holds career offender guideline’s “residual clause” unconstitutionally vague. (330)(520) In separate cases, defendants pled guilty to being a felon in possession of a firearm, and received enhancements under §2K2.1(a) based on prior convictions for a “crime of violence.” The term “crime of violence” is defined in the career offender guideline §4B1.2(a)(2), to include any offense that “otherwise involves conduct that presents a serious potential risk of physical injury to an¬other.” This mirrors the residual clause in the Armed Career Criminal Act (ACCA), 18 U.S.C. §924(e)(2)(B). which was held unconstitutionally vague in Johnson v. U.S., 135 S.Ct. 2551 (2015). The Seventh Circuit, en banc, ruled that Johnson’s holding applied to the parallel residual clause in the career offender guideline, over¬ruling U.S. v. Tichenor, 683 F.3d 358 (7th Cir. 2012), which held that the guidelines are not susceptible to chal¬lenge on vagueness grounds. The Seventh Circuit thus joined an increasing majority of its sister circuits in holding that the residual clause in §4B1.2(a)(2) is unconstitutionally vague. Judge Hamilton, joined by judges Pos¬ner, Flaum and Easterbrook, dissented. U.S. v. Hurlburt, 835 F.3d 715 (7th Cir. 2016) (en banc), overruling U.S. v. Tichenor, 683 F.3d 358 (7th Cir. 2012).
7th Circuit applies “another felony” increase for fleeing while wearing body armor. (330) Defendant, a convicted felon, was caught driving with a loaded gun in the car, while wearing body armor. He was convicted of being a violent felon in possession of body armor. The applicable guideline, §2K2.6(a), provided for a base offense level of 10. However, §2K2.6(b)(1) increases the offense level to 14 if the defendant “used the body armor in connection with another felony offense.” The district judge found that defendant used a vehicle to flee law enforcement, and that the body armor was connected to that felony because defendant wore it as he fled. The Seventh Circuit affirmed the enhancement. Defendant’s only argument was that he was not trying to flee, but was only trying to get to a safe place before stopping, and stressed that his speed never exceeded 40 miles per hour. However, defendant drove for almost a mile and made several turns along the way. After considering the evidence, the district judge found that that defendant committed the Indiana felony, and that finding was not clearly erroneous. U.S. v. McPhaul, 835 F.3d 687 (7th Cir. 2016).
8th Circuit upholds 768-month carjacking, drug and firearms sentence as not cruel and unusual. (140)(330) (742) Defendant was convicted of carjacking, distribution of heroin, and three counts of using or possessing a firearm in furtherance of a crime of violence or drug trafficking crime. The court sentenced him to 84 months on the non-firearms counts. Additionally, 18 U.S.C. §924(c) required consecutive sentences of 7 years, 25 years, and 25 years on the three firearms counts. The Eighth Circuit held that the 768-month sentence was not cruel and unusual punishment under the Eighth Amendment. Defendant committed two armed carjackings and placed three individuals in fear of their lives. The sentence was not substantively unreasonable. The district court sentenced defendant to 84 months on the non-gun offenses, at the bottom of the guidelines range. This sentence was presumed reasonable, and the sentence mandated by 18 U.S.C. §924(c) was statutorily required and was not subject to reasonableness analysis. U.S. v. Scott, __ F.3d __ (8th Cir. Aug. 5, 2016) No. 15-3461.
Supreme Court to decide if court may consider mandatory minimum when sentencing for predicate offense. (330) Under 18 U.S.C. §924(c), a defendant is subject to a five-year mandatory minimum sentence for using or carrying a firearm during and in relation to any crime of violence or drug-trafficking crime. A second or subsequent §924(c) conviction carries a sentence of 25 years. The Supreme Court granted certiorari to decide if a court sentencing a defendant who has been convicted of a §924(c) offense and a predicate crime of violence may reduce the sentence for the predicate offense to lower the aggregate sentence that results from the consecutive, mandatory-minimum sentence for the §924(c) offense. In the case before the Court, the defendant sought a one-day sentence on the predicate offense in addition to the mandatory minimum required for the §924(c) offense. Dean v. U.S., __ U.S. __, 137 S. Ct. __ (Oct. 28, 2016) (granting certiorari).
1st Circuit reverses 84-month firearm sentence where court mistakenly believed it was statutory minimum. (330)(540) A grand jury indicted defendant for carjacking and brandishing a firearm during a crime of violence. Defendant pled guilty to carjacking and possessing, but not brandishing, the firearm. This triggered a mandatory mini¬mum 60-month sentence under 18 U.S.C. §§924(c)(1)(A), whereas a “brandishing” conviction would have required an 84-month mandatory minimum sentence. The PSR in¬correctly indicated that the 84-month mandatory mini¬mum applied, and neither party objected. At sentencing, both parties asked for a 60-month mandatory minimum for the firearm offense, but the judge concluded that “[b]e¬cause the weapon was brandished, the minimum term of imprisonment for [the firearm count] is 84 months.” The First Circuit held that the judge plainly erred, and remanded for resentencing. U.S. v. Garay-Sierra, __ F.3d __ (1st Cir. Aug. 5, 2016) No. 14-1418.
Commission deletes residual clause from “crime of violence” in career offender guideline. (330)(340)(520) (540) In Johnson v. U.S., 135 S. Ct. 2551, 2563 (2015) the Supreme Court struck down as unconstitutionally vague the “residual clause” of the Armed Career Criminal Act’s definition of “violent felony” in 18 U.S.C. §924(e). Identical language is in the “residual clause” of the career offender guideline’s definition of “crime of violence” in §4B1.2(a)(2), i.e., “otherwise involves conduct that presents a serious potential risk of physical injury to another.” Accordingly, the Commission deleted the residual clause from §4B1.2(a)(2). The Commission retained the “elements” clause” in subsection (a)(1), i.e., crimes that have “as an element the use, or attempted use, or threatened use of physical force against the person of another.” And it amended the “enumerated offense clause” to include murder, voluntary manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, or the use or unlawful possession of a firearm described in 26 U.S.C. §5845(a) or explosive material as defined in 18 U.S.C. §841(c). Involuntary manslaughter and burglary of a dwelling were deleted from the list, but departure auth¬ority was added. Amendment effective August 1, 2016.
6th Circuit finds 84-month mandatory minimum for brandishing firearm was not cruel and unusual. (140) (330) Defendant was convicted of forcibly assaulting a federal law-enforcement officer, in violation of 18 U.S.C. §111(a)(1) and (b), and using a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. §924(c)(1)(A)(ii). He argued that his 84-month sentence was “grossly disproportionate to the severity of his momentary offense conduct” and thus was cruel and unusual punishment under the Eighth Amendment. The Sixth Circuit disagreed. Section 924(c)(1)(A)(ii) imposes a mini¬mum consecutive sentence of seven years if a fire¬arm is brandished “during and in relation to any crime of violence or drug trafficking crime.” Defendant was sentenced to that term, and the sentence was not “grossly dis¬proportionate” to the crime within the meaning of the Eighth Amendment. U.S. v. Rafidi, __ F.3d __ (6th Cir. July 11, 2016) No. 15-4095.
8th Circuit holds that Iowa aggravated misdemeanor qualified as felony under guidelines. (330) Defendant pled guilty to making a false statement in the purchase of a firearm and being a felon in possession of a firearms. The district court applied a four-level enhancement under §2K2.1(b)(6)(B) for possessing the firearms “in connection with another felony offense.” Defendant acknowledged that he used or possessed a firearm in connection with the offense of “harassment in the first degree” under the Iowa Code, §708.7(1)(b), which is punishable by up to two years’ imprisonment. However, he asserted that this offense was “an aggravated misdemeanor,” as defined in the Iowa Code, not a felony. The Eighth Circuit rejected the argument, because the guidelines define “felony conviction” as “a prior adult federal or state conviction for an offense punishable by … imprisonment for a term exceeding one year, regardless of whether such offense is specifically designated as a felony and regard¬less of the actual sentence imposed.” Note 1 to §2K2.1. U.S. v. Anderson, 339 F.3d 720 (8th Cir. 2003). U.S. v. Ewert, __ F.3d __ (8th Cir. July 7, 2016) No. 15-3043.
8th Circuit relies on un-objected portion of PSR that assault rifle could accept large capacity magazine. (330)(765) Based on weapons found at his girlfriend’s residence, defendant was convicted of being a felon in possession of a firearm. The district court applied §2K2.1(a)(3), which provides for an enhanced offense level for certain defendants if the offense involved “a semiautomatic firearm that is capable of accepting a large capacity magazine.” Defendant argued on appeal that the district court impermissibly relied on the PSR, and never made a finding that any of the firearms involved in his offense were capable of accepting a large capacity magazine. The Eighth Circuit found no error. The PSR is not evidence, but if a defendant does not object to facts set forth in the report, then the district court may accept those facts as true for purposes of sentencing. Defendant never objected to portions of the report stating that the assault rifle could accept a large capacity magazine. The court thus did not err when it adopted those facts without making a separate finding. Moreover, the trial record contained “abundant evidence” that the assault rifle was semiautomatic and capable of accepting a large capacity magazine. U.S. v. Reid, __ F.3d __ (8th Cir. July 5, 2016) No. 15-1676.
1st Circuit affirms “lean,” explanation for upward variance in gun case. (330)(741) Defendant pled guilty to possession of a firearm in furtherance of a drug-trafficking crime. The district court sentenced him to 90 months, which exceeded the 60-month mini¬mum required by statute and the 72-month sentence jointly recommended in defendant’s plea agreement. Defendant argued on appeal that the district court failed to give an adequate explanation for the sentence, but the First Circuit dis¬agreed. Under 18 U.S.C. §3553(c), a sentencing court must “state in open court the reasons for its imposition of the particular sentence.” Here, the district court commented on defendant’s frequent brushes with the law, the seriousness of the offense, and the need to promote both deterrence and respect for the law. The court noted the joint sentencing recommendation, but stated: “I don’t think that that is enough considering the nature of the firearms, the amount of ammunition, the kind of magazines, the whole bit. It’s an arsenal….” The panel found this explanation “lean,” but “sufficient to withstand plain error review.” U.S. v. Bermudez-Melendez, __ F.3d __ (1st Cir. June 28, 2016) No. 14-2209.
8th Circuit remands where unclear whether court relied on residual clause in finding crime of violence. (330)(520) After defendant was sentenced, the Supreme Court in Johnson v. U.S., 135 S. Ct. 2551 (2015), struck down the “residual clause” of the definition of violent felony in the Armed Career Criminal Act, 18 U.S.C. §924(e)(2)(B)(ii), as unconstitutionally vague. On appeal, defendant argued that the identically-worded “residual clause” of the career offender guideline, §4B1.2, was also vague, requiring reversal of his firearms sentence because the court found that he had two prior convictions for crimes of violence under §§2K2.1(a)(2). The Eighth Circuit remanded because it could not tell whether the district court’s finding was based on the residual clause or the “force clause” of §4B1.2. If it was based on the residual clause, any error would not be “plain” because it was an open question whether the guidelines are subject to vagueness challenges. However, it would have been error for the district court to rely on the force clause because the statute underlying defendant’s conviction for resisting arrest by fleeing, Mo. Rev. Stat. §575.150.5, did not require that a defendant use force or the threat of force for conviction. [Ed. Note: effective August 1, 2016, the Commission deleted the “residual clause” from the definition of “crime of violence” in §4B1.2]. U.S. v. Robinson, __ F.3d __ (8th Cir. June 21, 2016) No. 15-1697.
7th Circuit says court could not consider mandatory consecutive firearms sentence as basis for lower robbery sentence. (224)(330)(742) Two defendants pled guilty to five counts of Hobbs Act robbery, and one count of brandishing a firearm during a crime of violence. For brandishing a firearm, both men received a consecutive, statutory minimum sentence of seven years. They argued for the first time on appeal that the district court, in determining their robbery sentences, should have been free to take into account the mandatory, consecutive nature of their §924(c)(1) sentences. This argument was previously rejected U.S. v. Roberson, 474 F.3d 432 (7th Cir. 2007), and the Seventh Circuit found no compelling reason to overturn Roberson, and upheld the sentences. U.S. v. Ikegwuonu, __ F.3d __ (7th Cir. June 13, 2015) No. 15-2407.
7th Circuit finds insufficient evidence that defendant traded drugs for gun. (330) Police officers found a 9 mm pistol in the dining room of defendant’s residence. They also discovered cocaine base and drug paraphernalia under the couch in the living room Defendant later admitted that he possessed the gun, stating that he had purchased it from a drug addict. He pled guilty to being a felon in possession of a firearm. The district court applied a four-level enhancement under §2K2.1(b)(6)(B) for possessing the gun “in connection with another felony offense,” finding that the gun was purchased from the sale of drugs. The Seventh Circuit reversed, finding insufficient evidence that defendant exchanged drugs for the weapon. Defendant’s plea agreement established only that the person from whom he purchased the weapon was a drug addict. The district court also considered whether the firearm was used or possessed in connection with drug dealing in the residence, but made no findings that would support the increase. U.S. v. Clinton, __ F.3d __ (7th Cir. June 16, 2015) No. 15-1346.
8th Circuit upholds increase for obliterated serial number, despite acquittal. (330) Defendant was con¬victed of possessing an unregistered firearm and being a felon in possession of a firearm. The jury acquitted him of possessing a firearm with the serial number removed, in violation of 18 .S.C. §922(k). He challenged on appeal a four-level enhancement under §2K2.1(b)(4)(B) for an obliterated serial number, contending that it contradicted the jury’s verdict. He conceded that the 9 mm. pistol involved in his offense had an obliterated serial number, but he argued §2K2.1(b)(4)(B) should not apply because inherent in the jury’s acquittal on the §922(k) charge was the finding that he had no know¬ledge of the obliterated serial number. The Eighth Circuit upheld the enhancement, since it applies “regardless of whether the defendant knew or had reason to believe that the firearm … had an altered or obliterated serial number.” Note 8(B) to §2K2.1. U.S. v. Grimes, __ F.3d __ (8th Cir. June 14, 2015) No. 15-3309.
9th Circuit finds involuntary manslaughter is not a “crime of violence.” (330)(504) Under 18 U.S.C. §924(c), it is a federal crime to use a firearm during and in relation to a “crime of violence.” Defendant was convicted under §924(c) of using a firearm during the involuntary manslaughter of another. The Ninth Circuit held that involuntary manslaughter does not categorically constitute a “crime of violence” as §924(c) defines that term. The court found that prior precedent finding involuntary manslaughter to be a “crime of violence” had been effectively overruled by Supreme Court decisions. U.S. v. Benally, __ F.3d __ (9th Cir. Aug. 1, 2016) No. 14-10452.
5th Circuit affirms despite error in double-counting firearms enhancements. (125)(330) Defendant was re¬cruited to purchase firearms, and to fraudulently com¬plete the accompanying ATF forms. She pled guilty to making a false statement with regards to firearms rec¬ords. She argued that it was improper double counting to apply enhancements for both §2K2.1(b)(5) (firearms trafficking) and §2K2.1(b)(6) (committing another fel¬ony), because the trafficking crime underlying the (b)(5) increase was the “felony offense” underlying the (b)(6) increase, citing U.S. v. Guzman, 623 Fed.Appx. 151 (5th Cir. 2015). The Fifth Circuit agreed, observing that Note 13(D) to §2K2.1 bars an increase under both sections if they rely on the same trafficking offense. Nevertheless, there was no “plain error” because the district court properly noted that a §2K2.1(c)(1)(A) cross-reference would apply and maintain her offense level at 26. U.S. v. Velasquez, __ F.3d __ (5th Cir. June 8, 2016) No. 15-40855.
9th Circuit reverses “crime of violence” increase in firearms guideline as vague. (330)(340)(504)(520) Un¬der §2K2.1(a)(2), the sentence for certain firearms of¬fenses is enhanced if defendant had a prior conviction for a “crime of violence.” “Crime of violence” is defined in §4B1.2 to include an offense that “by its nature, presents a serious potential risk of physical injury to another.” In Johnson v. U.S., 135 S.Ct. 2551 (2015), the Supreme Court found identical language in the “residual clause” of 18 U.S.C. §924(e) to be unconsti¬tu¬tionally vague. On appeal, the government conceded that under Johnson, the provision of §2K2.1(a)(2) that incorporates the defini¬tion of “crime of violence” in §4B1.2 is likewise vague, and the Ninth Circuit accepted this concession. U.S. v. Torres, __ F.3d __ (9th Cir. July 14, 2016) No. 14-10210.
1st Circuit enforces appeal waiver despite vagueness argument. (330)(520)(780)(850) Defendant pled guilty to a variety of drug and firearms offenses. The district court found that his prior 2004 conviction was a “crime of violence” under §2K2.1(a)(3). “Crime of violence” is defined in §4B1.2(a)(2), which includes a “residual clause” identical to language held to unconstitutionally vague in Johnson v. U.S., __ U.S. __, 135 S.Ct. 2551 (2015). The government conceded that the district court erred in relying on the “crime of violence” definition in §2K2.1(a)(3), but argued that defendant’s appeal waiver should be enforced. The plea agreement stated that de¬fendant agreed not to appeal or challenge in a future pro¬ceeding any sentence of 70 months or less. The First Cir¬cuit enforced the waiver. Taking the disputed increase out of the equation, the low end of the range still exceeded his 60-month sentence, and the agreement said it was binding even if the court’s guideline analysis was different. U.S. v. Bey, __ F.3d __ (1st Cir. June 9, 2016) No. 15-3770.
Commission deletes residual clause from “crime of violence” in career offender guideline. (330)(340) (520)(540) In Johnson v. U.S., 135 S.Ct. 2551, 2563 (2015) the Supreme Court struck down as unconsti¬tutionally vague the “residual clause” of the Armed Career Criminal Act’s definition of “violent felony” in 18 U.S.C. §924(e). Identical language is in the “residual clause” of the career offender guideline’s definition of “crime of violence” in §4B1.2(a)(2), i.e., “otherwise involves conduct that presents a serious potential risk of physical injury to another.” Accordingly, the Commis¬sion deleted the residual clause from §4B1.2(a)(2). The Commission retained the “elements” clause” in sub¬sec¬tion (a)(1), i.e., crimes that have “as an element the use, or attempted use, or threatened use of physical force against the person of another.” And it amended the “enumerated offense clause” to include murder, volun¬tary manslaughter, kidnapping, aggravated assault, forci¬ble sex offenses, robbery, arson, extortion, or the use or unlawful possession of a firearm described in 26 U.S.C. §5845(a) or explosive material as defined in 18 U.S.C. §841(c). Involuntary manslaughter and burglary of a dwelling were deleted from the list, but departure auth¬ority was added. Amendment effective August 1, 2016.
8th Circuit limits knowledge requirement for con¬spiracy to specific offense characteristics. (320)(330)(380) Defendant was a backseat passenger in a vehicle stopped by police. Another passenger, Hicks, threw a loaded handgun into the back which the officers later discovered had been stolen. Defendant refused to testify before a grand jury investigating Hicks, and pled guilty to criminal contempt, in violation of 18 U.S.C. §401(3). The court found §2X3.1 applied, which provides for a base offense level of six levels lower than the offense level for the underlying offense—Hicks’ conviction for being a felon in possession of a firearm. Defendant argued that he did not, and should not have known that Hicks committed the offense after having been previously convicted of a crime of violence or controlled substance offense. The Eighth Circuit found this argument contrary to the plain language of 2X3.1. Note 1 says that the underlying offense level is calculated by applying the base offense level plus any applicable specific offense characteristics that were known, or reasonably should have been known, to the defendant. The knowledge requirement is thus limited to the applicable specific offense characteristics. U.S. v. Davis, __ F.3d __ (8th Cir. June 3, 2016) No. 15-3306.
8th Circuit bases “another felony” increase on state offense of carrying firearm in vehicle. (330) Defendant was a backseat passenger in a vehicle stopped by police. Another passenger, Hicks, threw a loaded hand¬gun into the back which the officers later discovered had been stolen. Defendant refused to testify before a grand jury investi¬gating Hicks, and pled guilty to criminal contempt, in violation of 18 U.S.C. §401(3). The district court sen¬tenced him under §2X3.1, which bases the offense level on the underlying offense, which in this case was Hicks’ conviction for being a felon in possession of a firearm. The district court applied a §2K2.1(b)(6)(B) increase for pos¬sessing the gun in connection with another felony. It found that Hicks’ possession of a handgun violated Iowa Code 724.4(1), which prohibits carrying or transporting a pistol or revolver in a vehicle, and the Eighth Circuit affirmed the increase. Defendant’s claim that the violation of Iowa law was based on the same conduct as the federal offense was foreclosed by U.S. v. Walker, 771 F.3d 449 (8th Cir. 2014), which noted that a defendant does not automatically commit the Iowa felony when he commits the federal offense of being a felon in possession of a firearm. U.S. v. Davis, __ F.3d __ (8th Cir. June 3, 2016) No. 15-3306.
8th Circuit reverses gun increase where court made no finding of defendant’s knowledge. (320)(330)(380) De¬fendant was a backseat passenger in a vehicle stopped by police. Another passenger, Hicks, threw a loaded handgun into the back seat which the officers later found had been stolen. Defendant refused to testify before a grand jury investigating Hicks, and pled guilty to criminal contempt, in violation of 18 U.S.C. §401(3). The district court sentenced him under §2X3.1, basing the offense level on the underlying offense, i.e., Hicks’ conviction for being a felon in possession of a firearm. The Eighth Circuit reversed. Under Note 1 to section 2X3.1, the sentence for an accessory after the fact is based on the base offense level for the underlying offense, plus any applicable spe¬cific offense characteristics that reasonably should have been known by the defendant. Here, the only evidence of defendant’s knowledge about the stolen handgun was paragraph 5 of the PSR, which stated only that “authorities later determined that the revolver had been stolen during a home burglary.” Since the government did not prove that defendant knew or should have known that the handgun was stolen, the district court erred in applying the enhance¬ment. On remand, the government should have the oppor¬tunity to expand the record. U.S. v. Davis, __ F.3d __ (8th Cir. June 3, 2016) No. 15-3306.
6th Circuit relies on Johnson to hold that guidelines’ residual clause is unconstitutionally vague. (135)(330)(340)(520) Defendant was convicted of firearms charges, and received an increase under §2K2.1(a)(1) for two prior convictions for crimes of violence. One conviction was an Ohio third-degree burglary, which the sentencing court had found was a crime of violence under the residual clause of guideline §4B1.2(a). However, in Johnson v. U.S., __ U.S. __, 135 S. Ct. 2551 (2015), the Supreme Court invalidated a textually identical residual clause in the Armed Career Criminal Act (ACCA), 18 U.S.C. §924(e). The Sixth Circuit held that Johnson’s reasoning applied equally to the guidelines, and that the residual clause in §4B1.2(a) was also unconstitutionally vague. Prior decisions shielding the guidelines from vagueness challenges were inconsistent with Johnson. Because the Ohio third-degree burglary was no longer a qualifying conviction, the case was remanded for resentencing. U.S. v. Pawlak, __ F.3d __ (6th Cir. May 13, 2016) No. 15-3566.
6th Circuit finds defendant had reason to believe firearms buyer could not legally possess them. (330) Defendant sold firearms to an undercover officer on four occasions. He challenged a four-level trafficking increase under §2K2.1(b)(5), arguing he did not know or have reason to believe that the recipient could not legally possess firearms. The government disagreed, pointing to: (1) the surreptitious nature of the sales (wrapping fire¬arms in a blanket or paper bag, conducting trans¬actions in the privacy of defendant’s bedroom, and refus¬ing to count the money outside); (2) the “quantity and quality” of the firearms (selling six semi-automatic guns with ammuni¬tion to the same buyer on four occasions within 60 days); and (3) the price (double the market value). Additionally, the undercover officer told defen¬dant that he left his “truck running … in case something goes wrong I have to dash for it,” implying that he was prohibited from pur¬chasing the firearms. The Sixth Cir¬cuit found these facts sufficient to show that defendant had reason to believe that the buyer was prohibited from purchasing firearms by legal means. U.S. v. Pawlak, __ F.3d __ (6th Cir. May 13, 2016) No. 15-3566.
8th Circuit upholds “another felony” increase for state offense of carrying gun in a car. (330) Defendant pled guilty to being a felon in possession of a firearm after police recovered two pistols and ammuni¬tion from a car in which he was riding. At sentencing, the district court found that defendant’s firearm possession also vio¬lated Iowa Code §724.4(1), which prohibits “knowingly carr[ying] or transport[ing] in a vehicle a pistol or revolver.” The court then applied a four-level enhance¬ment §2K2.1(b)(6)(B) for possessing a firearm “in con¬nection with another felony offense.” Defendant argued that it was error to apply the §2K2.1(b)(6)(B) enhance-ment based on the same conduct underlying his federal offense. See Note 14(C) to §2K2.1. The Eighth Circuit found this argument was foreclosed by U.S. v. Walker, 771 F.3d 449 (8th Cir. 2014), which held that a violation of §724.4(1) would support the enhancement because a defendant does not “automatically commit the [Iowa] felony when he violate[s] 18 U.S.C. §922(g) by pos¬sessing a firearm as a felon.” U.S. v. Terrell, __ F.3d __ (8th Cir. May 16, 2016) No. 15-3050.
8th Circuit finds sufficient reasons for firearms sen¬tence without “another felony” enhancement. (330) (741) Defendant got into an altercation with his pregnant daughter, and hit her in the head with a skillet. Police responding to her 911 call found a loaded gun hidden inside a garbage can in the apartment. Defendant was convicted of being a felon in possession of a firearm. The district court applied a §2K2.1(b)(6)(B) for possessing the firearm in connection with another felony, the assault on his daughter. The Eighth Circuit found it unnecessary to resolve whether this was proper, because the district court offered a reasonable alternative explanation for the 72-month sentence. The court said it had considered all of the §3553(a) factors, and cited “a number of troubling aspects” in defendant’s case, such as his “violent assault” against his daughter, who was pregnant, while minor children were present. The court also referenced defen¬dant’s ripping the phone out of the wall to prevent his daughter from calling for help, his waving around of the gun, and his discharging of the gun earlier in the day when he was intoxicated. The court also discussed defen¬dant’s “obstructive efforts” to influence his daughter’s tes¬timony, and his long history of alcoholism and drug use. U.S. v. Dean, __ F.3d __ (8th Cir. May 16, 2016) No. 15-2359.
8th Circuit says government need not prove firearm defendant used to threaten neighbor was functional. (330) Defendant threatened a neighbor with a firearm. Officers later discovered that the gun did not function due to a problem with its firing mechanism. Defendant pled guilty to being a felon in possession of a firearm. His sentence was increased under §2K2.1(b)(6)(B) for possessing the firearm in connection with another offense—the Missouri crime of “[e]xhibit[ing], in the presence of one or more persons, [a] weapon readily capable of lethal use in an angry or threatening manner.” Mo.Rev.Stat. §571.030.1(4). Defendant argued that the non-functional gun did not meet Missouri’s requirement that the weapon be “readily capable of lethal use.” The Eighth Circuit disagreed. The Missouri Supreme Court has held that a weapon qualifies as “readily capable of lethal use” under §571.030.1 even if it is not functional. See State v. Wright, 382 S.W.3d 902 (Mo. 2012). The felony underlying defendant’s enhancement contained the same “readily capable of lethal use” language as the con¬cealed-weapon offense considered by Wright. Therefore, the government did not need to prove that defendant’s weapon was functional to support the enhancement. U.S. v. Dixon, __ F.3d __ (8th Cir. May 16, 2016) No. 15-1008.
8th Circuit rules punching police officer in the face was crime of violence. (330)(520) Defendant was convicted of firearms charges. He received a base offense level of 20 under §2K2.1(a)(4)(A) based on the district court’s finding that his prior Nebraska felony conviction for assaulting a police officer in the third degree, in violation of Neb.Rev.Stat. §28-931(1), was a crime of violence. The Nebraska statute applies if a person “intentionally, knowingly, or recklessly causes bodily injury … [t]o a peace officer … while such officer is engaged in the performance of his or her official duties.” The Eighth Circuit agreed that the Nebraska conviction was a crime of violence. In U.S. v. Malloy, 614 F.3d 852 (8th Cir. 2010), the court held that an Iowa conviction for interference with official acts was a crime of violence under the force clause of §4B1.2(a)(1); because an element of the statute was that the offender “inflicted bodily injury” upon a peace officer. According to the PSR, defendant resisted an officer responding to a call regarding a “cutting” and “struck the officer in the face with his fist.” Defendant did not object to the facts in this portion of the PSR. U.S. v. Garcia-Longoria, __ F.3d __ (8th Cir. Apr. 27, 2016) No. 14-3627.
11th Circuit upholds increase even though only one of two serial numbers on gun was altered. (330) De¬fendant pled guilty to one count of illegally receiving a firearm while under indictment, in violation of 18 U.S.C. §§922(n), 924(a)(1)(D). The gun that defendant possess¬ed originally had its serial number imprinted in two locations: on its frame and on its slide. When defendant was arrested the serial number on the gun’s frame was intact, while the serial number on its slide had been altered or obliterated. The Eleventh Circuit upheld a §2K2.1(b)(4)(B) increase for possession of a firearm with “an altered or obliterated serial number,” holding that the enhancement applies even when only one of two or more serial numbers on a gun has been altered or obliterated. U.S. v. Warren, __ F.3d __ (11th Cir. Apr. 21, 2016) No. 15-12519.
6th Circuit finds rifle sold to undercover agent was relevant conduct to sale of pistol to felon and drug distribution. (170)(330) Defendant was convicted of selling a firearm to a convicted felon, and distribution of morphine. The felon was an informant working with an undercover agent, and during the same period defendant also sold a rifle to the agent. The Sixth Circuit held that the sale of the rifle to the agent was relevant con¬duct to his sale of the pistol and the morphine because they were part of the same course of conduct or common scheme or plan. The sale of the rifle was discussed and planned dur¬ing the sale of the pistol; both involved defendant and the informant; and both took place at defendant’s residence, only two weeks apart. The connections between the sale of the rifle and the pills were even stronger. They were, at least in part, planned at the same time, the same parties were present at the sales, the same location was used, and the sales occurred contemporaneously. U.S. v. Henry, __ F.3d __ (6th Cir. Apr. 8, 2016) No. 15-5578.
6th Circuit applies large-capacity magazine increase based on relevant conduct. (330) Defendant was con¬victed of selling a firearm to a convicted felon, and distri¬bution of morphine. The felon was working with an undercover agent, and during the same period defendant sold a pistol to the felon, defendant also sold a rifle to the agent. The district court applied a base offense level of 20 under §2K2.1(a)(4)(B), finding the rifle sold to the agent was capable of accepting a large-capacity magazine. On appeal, defendant contended that he was only indicted for selling the pistol, not the rifle, and, therefore, his “’offense’ did not ‘involve’ … a weapon” capable of accepting a large-capacity magazine. The Sixth Circuit disagreed. Defendant’s actions related to the rifle qualified as relevant conduct, and §2K2.1(a)(4)(B) can be applied on the basis of a defendant’s relevant conduct. U.S. v. Henry, __ F.3d __ (6th Cir. Apr. 8, 2016) No. 15-5578.
6th Circuit increases for “another felony offense” where sale of drugs and rifle occurred at same time. (330) Defendant was convicted of selling a firearm to a convicted felon, and distribution of morphine. The felon was working with an undercover agent, and during the same period defendant sold a pistol to the felon, defen¬dant also sold a rifle to the agent. The district court applied a four-level enhancement under §2K2.1(b)(6) for “us[ing] or possess[ing] any firearm or ammunition in connection with another felony offense.” Defendant argu¬ed that the rifle did not facilitate or have the potential to facilitate his drug offense. However, he acknowledged that the agent negotiated the purchase of the rifle, agreed to buy pills at a later date, and purchased six pills and the assault rifle when he returned. The Sixth Circuit found these facts demonstrated a sufficient nexus between the rifle and the morphine pills to support the §2K2.1(b)(6) increase. The sales of the gun and the drugs were nego¬tiated, at least in part, during the same meeting, and they occurred contemporaneously. U.S. v. Henry, __ F.3d __ (6th Cir. Apr. 8, 2016) No. 15-5578.
6th Circuit reverses trafficking increase where defen¬dant sold single firearm to separate individuals. (330) Defendant was convicted of selling a firearm to a con¬victed felon, and distribution of morphine. The felon was working with an undercover agent, and during the same period defendant sold a pistol to the felon, defendant also sold a rifle to the agent. The district court applied a four-level trafficking enhancement under §2K2.1(b)(5). Note 13(A) to §2K2.1 states that the trafficking enhancement applies if the defendant transferred two or more firearms to another individual, and knew or had reason to believe that the individual’s possession or receipt of the firearm would be unlawful. The 6th Circuit reversed, ruling that the enhancement did not apply because defendant did not sell multiple weapons to one person. Defendant sold a single firearm to two different individuals. “[T]he traf¬ficking enhancement appeared to be aimed at defendants who provide multiple firearms to at least one buyer or other transferee, i.e. parties engaged in bulk transfers.” U.S. v. Henry, __ F.3d __ (6th Cir. Apr. 8, 2016) No. 15-5578.
D.C. Circuit rejects additional firearm increase where defendant was also sentenced under §924(c). (286) (330) Defendant was convicted of participating in a large-scale, violent drug distribution business. He receiv¬ed a §2D1.1(b)(1) firearms enhancement for possessing a dangerous weapon during the offense. However, Note 2 to the 2000 version of §2K2.4 provides that, if a sen¬tence under 18 U.S.C. §924(c) “is imposed in conjunc¬tion with a sentence for an underlying offense,” the court is “not [to] apply any specific offense characteristic for possession, brandishing, use, or discharge of an explosive or firearm when determining the sentence for the under¬lying offense.” This is intended to prevent double count¬ing, because §924(c)’s special mandatory minimum sen¬tence, which runs consecutive to the sentence for the underlying offense, already “accounts for any explosive or weapon enhancement for the underlying offense.” Because defendant was sentenced for a §924(c) firearms offense, the D.C. Circuit held that Note 2 barred the additional two-level enhancement. U.S. v. McGill, __ F.3d __ (D.C. Cir. Mar. 1, 2016) No. 06-3190.
D.C. Circuit says jury necessarily found firearm was discharged, by convicting on other counts. (330) Car¬rying a firearm during and in relation to a crime requires five-year mandatory minimum sentence under 18 U.S.C. §924(c)(1)(A)(i), and this increases to 10 years if the firearm was discharged. Defendant argued for the first time on appeal that his ten-year sentence violated Alleyne v. U.S., 133 S. Ct. 2151 (2013), because the jury did not find that the firearm was discharged. The D.C. Circuit found no plain error. Count Four charged defendant with attempting to murder a wit¬ness while armed with a fire¬arm, and Count Five charged him with attempting to kill a witness by shooting the witness with a firearm. The §924(c) count charged that defendant carried and posses¬sed a firearm in connection with Counts Four and Five. By finding defendant guilty on Counts Four and Five, the jury necessarily found that a firearm was discharged in connection with Counts Four and Five. U.S. v. McGill, __ F.3d __ (D.C. Cir. Mar. 1, 2016) No. 06-3190.
6th Circuit upholds refusal to reduce guideline sentence to account for mandatory firearms sentence. (330)(742) Defendants were convicted of charges arising from a carjacking conspiracy. At sentencing, the district court first imposed mandatory sentences for their fire¬arms convictions under §924(c): 55 years for defendant Edmond and 80 years for defendant Philip. It then deter¬mined the guidelines-recommended sentences for their other convictions, and did not reduce their ultimate guidelines-related sentences to account for their manda¬tory sentence. Edmond received a total sentence of 75 years, and Philip a 93-year sentence. They argued that the district court abused its discretion by refusing to consider the length of their mandatory firearms sentences when calculating their guidelines sentences. The Sixth Circuit disagreed, noting that under U.S. v. Franklin, 499 F.3d 578 (6th Cir. 2007,” [t]he sentencing court must determine an appropriate sentence for the underlying crimes without consideration of the §924(c) sentence.” U.S. v. Edmond, __ F.3d __ (6th Cir. Mar. 3, 2016) No. 14-2426.
8th Circuit says Iowa conviction for displaying dan¬gerous weapon was crime of violence. (330) Defendant pled guilty to firearms charges. The district court applied an enhanced offense level under §2K2.1(a)(4)(A) based on its finding that his previous Iowa conviction for assault while displaying a dangerous weapon, under Iowa Code §708.1(3), was a crime of violence. Defendant argued that because §708.1(3) did not require physical force or a threat of physical harm, it was not a crime of violence. The Eighth Circuit noted that it had previously rejected defendant’s argument in U.S. v. Maid, 772 F.3d 1118 (8th Cir. 2014). Maid held that a con¬viction for assault while displaying a dangerous weapon under Iowa Code §§708.1(3), 708.2(3) “categorically qualifie[d] as a crime of violence under USSG §4B1.2(a)(1).” Both the requirement of “[i]ntentionally point[ing] any firearm to¬ward another” and the requirement of “display[ing] in a threatening manner any dangerous weapon toward an¬other” under Iowa Code §708.1(3) consti¬tuted a “threat¬ened use of physical force” under §4B1.2(a)(1). U.S. v. Boots, __ F.3d __ (8th Cir. Mar. 8, 2016) No. 15-1503.
8th Circuit holds Iowa offense of carrying firearms qualified as “another felony offense.” (330) Defendant pled guilty to firearms charges. The district court applied a §2K2.1(b)(6)(B) enhancement for possessing a firearm in connection with another offense, i.e., carrying wea¬pons in violation of Iowa Code §724.4(1). Note 14(C) to §2K2.1 provides that “another felony offense” means any federal, state, or local offense punishable by more than a year of imprisonment, “other than the explosive or firearms possession or trafficking offense.” Defendant argued that the exclusion in Note 14(C) applied to his Iowa carrying-weapons offense. The Eighth Circuit dis¬agreed, noting that it previously rejected this argument in U.S. v. Walker, 771 F.3d 449 (8th Cir. 2014) (holding that Iowa Code §724.4(1) did not fall within the narrow Note 14(C) exclusion for “the … firearms possession … offense”). Defendant failed to show that he “could not have committed the underlying federal offense without also violating the state offense that the district court used to support the [enhancement].” U.S. v. Boots, __ F.3d __ (8th Cir. Mar. 8, 2016) No. 15-1503.
8th Circuit says below-guidelines sentence was not too high. (330)(742) Defendant was convicted of fire¬arms and ammunitions charges. His guideline range was 324-405 months, but the district court varied downward to 300 months. The Eighth Circuit rejected defendant’s argument that his below-guideline sentence was substan¬tively unreasonable. Defendant did not con¬tend that the court failed to consider a relevant factor under 18 U.S.C. §3553, but argued that the court should have placed more weight on his age, his personal circumstances, the minor nature of his prior crimes, and his lack of counseling or treatment. The district court, however, considered defen¬dant’s arguments and found that they were outweighed by the gravity of defendant’s extensive criminal history. The court noted that defendant had rejected opportunities for treatment and his pattern of behavior caused a concern “about the safety of the public.” The district court did not commit clear error in weighing the §3553 factors. U.S. v. White, __ F.3d __ (8th Cir. Mar. 8, 2016) No. 15-1904.
8th Circuit approves increase for possessing firearms in connection with burglary in which they were stolen. (330) Defendant was convicted of being a felon in possession of firearms and ammunition and possessing stolen firearms and ammunition. The district court ap¬plied a four-level increase under §2K2.1(b)(6)(B) for possessing the firearms and ammunition in connection with another felony offense, i.e., the burglary of a home owned by Nevin. See Note 14(B) (enhancement is proper if during the course of a burglary defendant finds and takes a firearm). Defendant argued that this was error because the government did not prove by a prepon¬derance of the evidence that he committed the burglary, noting that that he was not charged with burglary and that the government did not provide evidence showing that police found defendant’s fingerprints or DNA in Nevin’s home. The Eighth Circuit found no clear error, given the extensive evidence at trial, and the presence of Nevin’s possessions in defendant’s car, home, and storage unit. U.S. v. White, __ F.3d __ (8th Cir. Mar. 8, 2016) No. 15-1904.
8th Circuit says relying on “residual clause” to find crime of violence was not plain error. (330)(520) Defendant pled guilty to firearms charges. The district court found defendant’s prior felony conviction under Mo. Rev. Stat. §575.150, for resisting arrest by fleeing, was a crime of violence under the “residual clause of §4B1.2(a)(2) and applied a base offense level of 20 under §2K2.1. Thereafter, the Supreme Court in Johnson v. U.S., 135 S. Ct. 2551 (2015), held that an identical “residual clause” in the Armed Career Criminal Act was unconstitutionally vague. Nevertheless, despite the gov¬ernment’s concession that Johnson applied to the residual clause of §4B1.2(a)(2). the Eighth Circuit ruled that any error in relying on the residual clause was not “obvious” or “plain,” It was an open question whether a vague advisory sentencing guideline could violate due process, and the answer was not obvious. Judge Shepherd dissented. U.S. v. Ellis, __ F.3d __ (8th Cir. Mar. 7, 2016) No. 15-1261.
8th Circuit counts prior conviction as “crime of violence” even though it received no criminal history points. (330)(504) Defendant pled guilty to being a felon in possession of a firearm. The district court found that defendant’s prior Missouri conviction for resisting arrest by fleeing was a crime of violence and applied an enhanced offense level under §2K2.1. Relying on King v. U.S., 595 F.3d 844 (8th Cir. 2010), defendant argued for the first time on appeal that the Missouri conviction could not be considered because he had been sentenced concurrently, and therefore the offense received no criminal history points. See Note 10 to §2K2.1. Defen¬dant argued that because the sentence for both offenses was the same, the sentence for resisting arrest by fleeing was not the “longest sentence of imprisonment.” See §4A1.2(a)(2). The Eighth Circuit found no plain error, noting that King relied on a temporary quirk of juris¬prudence that was promptly rejected by a sister circuit, another Eighth Circuit panel, and the Sentencing Com-mission. U.S. v. Ellis, __ F.3d __ (8th Cir. Mar. 7, 2016) No. 15-1261.
7th Circuit reverses for lack of finding that conduct was related to offenses of conviction. (170)(330)(460) Defendant was one of three armed men who robbed a bank. They were arrested over a month later after a high-speed chase. Based on the high-speed chase, the district court applied enhancements under §3C1.2 (reckless en¬dangerment during flight) and §2K2.1(b)(6)(B) (use of a firearm “in connection with” another felony). The Sev¬enth Circuit agreed with defendant that the relevant con¬duct guideline, §1B1.3(a) required that these enhance-ments be related to the offense of conviction, and the court erred by failing to make findings on this issue. The application notes to §2K2.1(b)(6)(B) refer directly to §1B1.3(a), making clear that the firearm in question must be “part of the same course of conduct or common scheme or plan” as the offense of conviction. The con¬nection between §§1B1.3(a) and 3C1.2 was similarly undeniable. Here, the district court made no findings that would support the conclusion that the offenses of conviction, all of which stemmed from the robbery, were connected to the behavior underlying the two enhancements applied here. Applying the enhancements without such a finding was error. U.S. v. Seals, __ F.3d __ (7th Cir. Feb. 23, 2016) No. 15-1372.
8th Circuit agrees that defendant possessed gun in connection with heroin in his pocket. (330) During a pat-down, police found a loaded gun and a bag of heroin (0.21 grams) in defendant’s front pocket. Defendant pled guilty to being a felon in possession of firearm. The Eighth Circuit upheld a four-level enhancement under U.S.S.G. §2K2.1(b)(6)(B) for possessing the gun in con¬nection with another felony, i.e., possession of heroin. The district court properly applied the “facilitate” stan¬dard to find that the firearm was used “in connection with” the heroin possession. The district court explicitly stated, “I do find that this firearm facilitated or had the potential to facilitate another felony” and, “the firearm was in fact possessed by [defendant] in connection with another felony, namely his possession of heroin on that day.” Although defendant argued that he possessed only a “user” amount of heroin, the inference that a firearm is for the protection of drugs is allowable when the amount of drugs is more than residue. U.S. v. Jarvis, __ F.3d __ (8th Cir. Feb. 25, 2016) No. 15-1383.
8th Circuit does not review firearm increase where court would have varied upward anyway. (330)(742) Defendant pled guilty to being a felon in possession of a firearm after police found a gun during a protective search of a car in which he was seated. The district court applied a four-level increase under §2K2.1(b)(6)(B) for using or possessing a firearm “in connection with another felony offense.” Defendant challenged the enhancement on appeal, but the Eighth Circuit did not decide the issue, ruling that any error was harmless. Citing defendant’s “serious criminal history, his history and characteristics, his violent criminal history” and his “extremely high like¬lihood to recidivate,” the district court indicated it would vary or depart upward to a sentence of 96 months’ im¬prisonment even if it incorrectly calculated his guideline range. This alternative upward variance was substan¬tively reasonable based on the 18 U.S.C. §3553(a) factors, and therefore any guideline error would have been harmless. U.S. v. Sanford, __ F.3d __ (8th Cir. Feb. 16, 2016) No. 15-1501.
8th Circuit finds court relied on “unobjected-to” PSR in sentencing at top of range. (330)(742) Defendant pled guilty to being a felon in possession of a firearm after police found a firearm during a protective search of a vehicle in which he was seated. The district court sentenced him to 96 months, the top of his guideline range. The Eighth Circuit held that the sentence was substantively reasonable, rejecting defendant’s claim that the court committed procedural error by relying on two criminal history points to which he objected in the PSIR. The court made clear that it was relying only on the “unobjected-to” portions of his PSR. Even without the two criminal history points to which defendant objected, he had a criminal history score of 20, placing him well into criminal history VI. He had convictions for assault, domestic abuse, theft, burglary, and child endangerment. The unobjected-to portions of the PSR showed that the court’s characterization of defendant’s criminal history as “outrageous” was not an abuse of discretion. U.S. v. Sanford, __ F.3d __ (8th Cir. Feb. 16, 2016) No. 15-1501.
6th Circuit finds that defendant constructively pos¬sessed all firearms on jointly-owned farm. (330) Based on video footage of defendant possessing firearms at his and his brother Leon’s rural farm, defendant was con¬victed of being a felon in possession of a firearm. Agents seized 25 firearms attributable to defendant and Leon: 17 from defendant’s house, five from Leon’s trailer, and three from Leon’s person. The Sixth Circuit upheld a six-level enhancement for possessing 25 firearms, finding that the district court could reasonably conclude that defendant constructive possessed all 25 firearms. He had “unfettered access” to the firearms, and videos showed defendant and Leon using firearms together, and coming and going freely from Leon’s trailer. In addition, defendant’s son claimed ownership of one of the firearms recovered from Leon’s person. Although Leon was carrying the three firearms when the agents arrived, this did not negate the conclusion that defendant also had constructive possession of the firearms. U.S. v. Houston, __ F.3d __ (6th Cir. Feb. 8, 2016) No. 14-5800.
8th Circuit finds Arkansas second degree battery was crime of violence. (330)(520) The district court sentenc¬ed defendant under §2K2.1(a)(3), finding that his 2006 felony conviction of second degree battery in Arkansas was a crime of violence. The Eighth Circuit upheld this finding. The Arkansas battery statute was divisible, and the district court correctly applied the modified categor¬ical approach to determine that defendant was convicted under subsection (a)(4) of that statute. Subsection (a)(4) provides that a person is guilty of second degree battery if he “intentionally or knowingly, without legal justifica¬tion, causes physical injury to one he knows to be” a law enforcement officer or other specified person. Ark. Code Ann. §5–13–202 (2006). The Supreme Court recently held in U.S. v. Castleman, 134 S. Ct. 1405 (2014), that a similarly worded statute included the use of physical force as an element under 18 U.S.C. §921(a)(33)(A)(ii). Defendant argued that a person could cause an injury without using physical force, for example, by offering his victim a poisoned drink. However, the panel concluded that Castleman resolved that question, holding that even though the act of poisoning a drink does not involve physical force, “the act of employing poison knowingly as a device to cause physical harm” does. Judge Kelly dissented. U.S. v. Rice, __ F.3d __ (8th Cir. Feb. 11, 2016) No. 14-3615.
8th Circuit finds defendant possessed firearm “in connection with” drug possession. (330) Defendant was arrested in possession of a gun and a small amount of methamphetamine. He pled guilty to being a felon in possession of a firearm, and received a §2K2.1(b)(6)(B) enhancement for possessing the firearm in connection with another felony, possession of methamphetamine. Defendant did not dispute that he possessed a personal-use amount of meth at the time of his arrest or that this was a felony under Missouri law. However, he argued that the district court did not make sufficient factual findings that he possessed the firearm “in connection with” his possession of the meth. The Eighth Circuit affirmed the increase. Under §2K2.1(b)(6)(B), a firearm is possessed “in connection with” a drug possession fel¬ony if it “facilitated, or had the potential of facilitat¬ing,” that other felony. Possessing a firearm with a personal use amount of illegal drugs can meet this standard. There was no clear error. U.S. v. Quinn, __ F.3d __ (8th Cir. Feb. 4, 2016) No. 15-1750.
2nd Circuit rejects gun increase as improper double counting. (125) (330) Defendant pled guilty to con¬spir¬acy to deal firearms without a license. The Second Cir-cuit held it was improper double counting for the court to increase his sentence under §2K2.1(b)(6) for transferring a fire¬arm with “reason to believe” it would be possessed in connection with another felony, because the court also applied a four-level §2K2.1(b)(5) “trafficking” increase. Note 13(D) says that if the “trafficking” increase applies, the other-felony-offense increase also ap¬plies “[i]f the defendant used or transferred one of such firearms in connection with another felony offense (i.e., an offense other than a firearms possession or trafficking offense).” But no mention is made of situations where the defendant transferred a firearm not in connection with another felony offense, but with reason to believe it would later be used in connection with another felony offense. The negative implication of mentioning one application and omitting the other, is that when the “trafficking” en¬hancement applies, a sentence may not be enhanced under the reason-to-believe clause. U.S. v. Young, __ F.3d __ (2d Cir. Jan. 29, 2016) No. 14-2383-CR.
2nd Circuit finds that defendant transferred gun knowing it would be used in another felony. (330) (770) Defendant pled guilty to conspiracy to deal in firearms without a license, and related charges. He chal¬lenged a §2K2.1(b)(6) enhancement for transferring a firearm knowing it would be used or possessed in connection with another felony offense. The Second Cir¬cuit found no error in the court’s decision to credit co-conspirator Davis’s testimony that defendant gave him a gun to deliver to defendant’s cousin, a drug dealer named Reggie. Moreover, the evidence at sentencing supported the inference that defendant had reason to believe the firearms he distributed would be used in connection with other felonies. The court specifically found that defen¬dant unlawfully sold a large number of unusually danger¬ous weapons – AK-47s and TEC-9s – to people he knew to be drug dealers. That was sufficient to support an in¬ference that defendant had reason to believe the guns would be used in connection with other felonies. U.S. v. Young, __ F.3d __ (2d Cir. Jan. 29, 2016) No. 14-2383-CR.
1st Circuit says reckless endangerment and possessing firearm in another felony not double counting. (125)(330)(460) Defendant pled guilty to illegal posses¬sion of a firearm. The district court applied a two-point enhancement under §3C1.2 for reckless endangerment during flight. Defendant argued that this was improper double counting because the conduct that formed the basis for the enhancement—leading the troopers on a high speed chase—had already been taken into account when the district court applied the four-point increase under §2K2.1(b)(6)(B) for possessing the firearms “in connection with another felony offense.” The First Cir¬cuit found no double counting. Although the district court cited defendant’s high-speed chase in applying the §2K2.1(b)(6)(B) enhancement, it also cited defendant’s burglary of the home from which the firearms were stolen. Since the burglary alone was plainly an uncharged felony, and defendant admitted the burglary in a senten¬cing memo, any reliance by the district court on the car chase was unnecessary. U.S. v. MacArthur, 805 F.3d 385 (1st Cir. 2015).
1st Circuit upholds treating Maine burglaries as crimes of violence. (330)(340) Defendant pled guilty to illegal posses¬sion of a firearms. The district court treated his two prior Maine burglary convictions as crimes of violence, thus raising his offense level to 26 under §2K2.1(a)(1). The Maine burglary statute described at least two alternative offenses, only one of which included as an element the entry or unauthorized presence in a dwelling. The prosecution provided no Shepard docu¬ments, but the district court relied on the PSR to find that the prior burglaries were crimes of violence. Defendant argued for the first time on appeal that, without proper Shepard documents, this was error. The First Circuit found no plain error. The PSR expressly stated that defendant was convicted of entering a dwelling, and named the occupant in each instance. Defendant did not object to this description, and thus may have waived the issue. The district court was given no reason not to rely on the express descriptions of the burglary convictions as instances in which defendant was convicted of entering a dwelling. U.S. v. MacArthur, 805 F.3d 385 (1st Cir. 2015).
9th Circuit says state crime on tribal land supports enhancement for possessing firearm. (330) Defendant was convicted of two counts of being a convicted felon in possession of a firearm. Defendant possessed the fire¬arms on the Navaho Reservation, and he was arrested after discharging a firearm over the head of another per¬son. At sentencing, the district court enhanced defen¬dant’s offense level by four under § 2K2.1(b)(6)(B) be¬cause defendant used the firearm in connection with “another felony offense.” The phrase “another felony offense” refers to any felony “regardless of whether a criminal charge was brought, or a conviction obtained.” The Ninth Circuit held that shooting a firearm over the head of another person constituted felony disorderly con¬duct under Arizona state law. Because the Assimilative Crimes Act incorporates into federal law the offenses of the state in which the Navaho Reservation is located, it does not matter under § 2K2.1(b)(6)(B) whether “another felony offense” occurs on tribal lands or within the state’s jurisdiction. U.S. v. Bare, __ F.3d __ (9th Cir. Nov. 24, 2015) No. 14-10475.
3rd Circuit, en banc, reverses firearms sentence for Alleyne error. (120)(330) Defendant was sentenced for brandishing a firearm during and in relation to a crime of violence, which carries a seven-year mandatory mini¬mum. However, the jury only convicted him of using or carrying a firearm during and in relation to a crime of violence, which has a five-year mandatory minimum. De¬fendant was never charged with brandishing. The Third Circuit upheld the sentence, but the Supreme Court remanded for further consideration in light of its recent decision in Alleyne v. U.S., __ U.S. __, 133 S. Ct. 2151 (2013). Alleyne held that brandishing a firearm was a separate, aggravated offense from using or carrying a firearm, and that the aggravated offense must be found by a jury beyond a reasonable doubt. The Third Circuit, on rehearing en banc, held that the error was a sentencing error, rather than a trial error, and that it was not harm¬less. Defendant’s sentence would have been different if he had been sentenced for using or carrying, rather than brandishing. Defendant was sentenced to an extra two years as a result of the Alleyne error. U.S. v. Lewis, __ F.3d __ (3d Cir. Sept. 16, 2015) No. 10-2931 (en banc).
11th Circuit holds Johnson vagueness doctrine does not apply to advisory guidelines. (120)(330)(520) Defendant received an enhanced sentence under §2K2.1(a)(2) based on the court’s finding that his two prior convictions for burglary of an unoccupied dwelling were “crime[s] of violence” under §4B1.2(a)(2). Defen¬dant argued that the residual clause of §4B1.2(a)(2) was unconstitutionally vague in the light of the Supreme Court’s decision in Johnson v. U.S., __ U.S. __, 135 S. Ct. 2551 (2015). Johnson held that the residual clause of the Armed Career Criminal Act was unconstitutionally vague. The definition of “violent felony” under the ACCA is nearly identical to the definition of “crime of violence “under the guidelines, and both definitions include an identical residual clause that encapsulates crimes that “present[ ] a serious potential risk of physical injury to another.” 18 U.S.C. §924(e)(2)(B); U.S.S.G. §4B1.2(a)(2). The Eleventh Circuit held that the vagueness doctrine did not apply to the advisory guidelines. By its terms, Johnson was limited to criminal statutes that define elements of a crime or fix punishments. The advisory guidelines do neither. U.S. v. Matchett, __ F.3d __ (11th Cir. Sept. 21, 2015) No. 14-10396.
11th Circuit says Florida burglary of unoccupied dwelling was crime of violence under career offender residual clause. (330)(520) Defen¬dant received an in¬crease under §2K2.1(a)(2) based on the sentencing court’s finding that his two prior Florida convictions for burglary of an unoccupied dwelling were “crime[s] of violence” under §4B1.2(a)(2). The definition of a crime of violence includes burglary of a dwelling, but the Florida offense did not fall under that definition because it included burglary of “the curtilage” of the dwelling, Fla. Stat. §810.011(2), which took it out of the federal definition of generic burglary. Nonetheless, the Eleventh Circuit held that the Florida offense was a crime of violence under the residual clause of the career offender guideline because it “involve[d] conduct that presents a serious potential risk of physical injury to another.” §4B1.2(a)(2). The risks were similar in degree to the risks posed by the “closest analog among the enumerated offenses – burglary of a dwelling.” The in¬clusion of the curtilage did not mitigate the risk presented by attempted burglary. U.S. v. Matchett, __ F.3d __ (11th Cir. Sept. 21, 2015) No. 14-10396.
10th Circuit rules defendant under conditional discharge was “under indictment” until probation expired. (330) Defendant was convicted of two counts of unlawful possession of a firearm. At sentencing the district court applied an enhanced sentence because it found that defendant qualified as a prohibited person under § 2K2.1(a)(4)(B). The definition of a “prohibited person” includes “any person who is under indictment for a crime punishable by imprisonment for a term exceeding one year.” At the time of the federal offenses, defendant was under a “conditional discharge” order from New Mexico—he had been placed on probation without being adjudicated guilty of a crime. Defendant’s conditional discharge specified that further proceedings would be deferred and discharged if he successfully completed supervised probation for three years. The Tenth Circuit upheld the district court’s finding that defendant was “under indictment” for the New Mexico offenses at the time of the federal offenses. It was clear that New Mexico considered defendants who were subject to conditional discharger offenders (520) and Armed Career Criminals (540). Although the guideline definitions vary, readers may find it useful to consult all four categories].
1st Circuit remands crime of violence finding in light of Descamps. (330) Defendant pled guilty to firearms charges, and received an enhanced offense level under §2K2.1(a)(2) based on as remaining under indictment until probation expired. U.S. v. Saiz, __ F.3d __ (10th Cir. Aug. 18, 2015) No. 14-2151.
8th Circuit applies cross-reference for killing victim even though firearm not part of felon-in-possession offense. (210)(330) Defendant pled guilty to being a felon in possession of a firearm and possession of sawed-off shotguns. At sentencing, the district court found that defendant had committed first degree murder and applied the cross-reference in § 2K2.1(c) to the first-degree murder guideline. Defendant argued that the court erred in applying the cross-reference to his felon in possession charge because he did not use any of the guns listed “in connection with” the murder. The Eighth Circuit rejected defendant’s argument that the cross-reference only applied where a defendant committed another crime with or while possessing a firearm for which he was charged. The circuit rejected a similar argument in U.S. v. Mann, 315 F.3d 1054 (8th Cir. 2003), which involved an application of the former § 2K2.1(b)(5). Because the language in § 2K2.1(b)(5) mirrored the relevant language in the cross reference, cases interpreting the former § 2K2.1(b)(5) could be relied upon here. The district curt did not err in applying the cross-reference to defendant’s felon in possession charge where defendant murdered the victim with a firearm not included in that charge. U.S. v. Patrie, __ F.3d __ (8th Cir. July 27, 2015) No. 14-2576.
9th Circuit upholds enhancement for having gun in connection with drug offense. (330) Defendant was arrested with a gun and cocaine in his car. At defendant’s sentencing for being in possession of a firearm while subject to a restraining order, in violation of 18 U.S.C. §922(g)(8), testimony established that he sold cocaine to a confidential informant 11 days before the arrest. The district court found that the government had shown that defendant had the gun in connection with the drugs and imposed a four-level increase under §2K2.1(b)(6)(B) for use or possession of a firearm in connection with another felony. The Ninth Circuit held that the district court properly applied the enhancement. U.S. v. Chadwell, __ F.3d __ (9th Cir. Aug. 19, 2015) No. 14-30028.
8th Circuit applies cross-reference to murder guideline based on a preponderance. (120)(330) Defendant was convicted of being a felon in possession of ammunition. Guideline § 2K2.1(c)(1) provides a cross-reference if the defendant transferred a firearm or ammunition with knowledge that it would be used in connection with another offense. The district court applied the cross-reference to the first degree murder guideline, § 2A1.1, and sentenced him to 120 months. The Eighth Circuit upheld the use of the cross-reference, rejecting defendant’s argument that the Supreme Court’s decisions in Alleyne, Apprendi, and Blakely required the jury to find evidence supporting the sentencing enhancements beyond a reasonable doubt. There was sufficient evidence that defendant transferred the ammunition to her son and that death occurred. The court heard testimony linking defendant’s transfer of ammunition to several homicides. The court found that (1) defendant made the purchases for her son, at his request, and with his money, and (2) when defendant gave her son the 9mm ammunition, she knew that he had killed three others with the 12–gauge ammunition, and that it was more likely than not that he planned to kill another with the 9mm ammunition. The court properly concluded, by a preponderance of the evidence, that ammunition purchased by defendant was transferred to her son, resulting in four deaths. U.S. v. Jenkins, __ F.3d __ (8th Cir. July 6, 2015) No. 14-2844. XE “U.S. v. Jenkins, __ F.3d __ (8th Cir. July 6, 2015) No. 14-2844.”
1st Circuit says government showed that firearm was “semiautomatic.” (330) Defendant was convicted of unlawful possession of a firearm. He challenged on appeal the district court’s finding under §2K2.1(a)(4)(B) that the firearm was semiautomatic. The First Circuit found no error. The trial evidence established the firearm was a .40-caliber Glock pistol, commonly known to be semiautomatic. A special agent testified that Glock pistols are manufactured as semiautomatic weapons, and that he personally conducted a “dry test” to determine if defendant’s weapon worked in accordance with its design. The test entailed moving the slide back and forth to see if the trigger reset (as in a semiautomatic firearm) or remained activated (as it would for a modified, automatic firearm). The agent testified that “the slide returned, and the trigger reset.” From this testimony, the district court could find by a preponderance of the evidence that the firearm was an unaltered Glock and, consequently, a semiautomatic firearm. U.S. v. Torres-Colon, __ F.3d __ (1st Cir. June 12, 2015) No. 14-1563.
4th Circuit holds North Carolina second-degree rape was not categorically a crime of violence. (330)(520) Defendant was convicted of being a felon in possession of a firearm. The district court increased the sentence under §2K2.1(a)(4)(A) based on defendant’s prior North Carolina conviction for second-degree rape, which the court found was a crime of violence. Defendant argued that the statute did not require the use of physical force, and could instead be violated through constructive force or the absence of legally valid consent. The Fourth Circuit agreed, and reversed. In addition to a rape committed by force, the statute applies to victims who are deemed by law incapable of validly consenting to intercourse or resisting sexual acts, and is used by the state in cases where there is factual but legally insufficient consent. Offenses that may be committed without physical force and predicated instead on the absence of legally valid consent are not categorically crimes of violence under either clause of §4B1.2. Judge Wilkinson dissented. U.S. v. Shell, __ F.3d __ (4th Cir. June 12, 2015) No. 14-4211.
9th Circuit upholds 90-year sentence for firearms violations as reasonable. (330)(870) Defendant was convicted of four counts of using or carrying a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. §924(c). The jury found that defendant discharged his firearm in committing each offense, so he was sentenced to a mandatory minimum 10 years on the first §924(c) conviction, to be followed by three mandatory minimum 25-year sentences. Sitting en banc, the Ninth Circuit upheld this sentence against defendant’s reasonableness challenge, finding that the district court had no discretion in imposing the sentence. U.S. v. Zepeda, __ F.3d __ (9th Cir. July 7, 2015) No. 10-10131.
1st Circuit upholds finding that domestic violence conviction was crime of violence. (330) Defendant pled guilty to firearms charges, and received a base offense level of 24 under §2K2.1(a)(2) for two prior offenses that were crimes of violence. On appeal, defendant argued for the first time that his base offense level should have only been 22 because he only had one prior conviction for a crime of violence. The First Circuit held that the district court did not plainly err in ruling that defendant’s Puerto Rican domestic violence conviction under Article 3.1 was a crime of violence. Article 3.1 was a divisible statute, and the panel concluded that a conviction under the “physical force” element of Article 3.1 would likely qualify as a crime of violence. Ordinarily, the court would try to determine from the relevant documents whether defendant’s prior conviction was for an offense under the “physical force” element. However, because defendant made no specific challenge to the PSR’s conclusion that the list of his prior convictions included two crimes of violence, there were no documents to review. Accordingly, defendant did not show the necessary prejudice, even assuming that the district court erred in not independently seeking out the records of conviction. U.S. v. Serrano-Mercado, __ F.3d __ (1st Cir. May 1, 2015) No. 13-1730.
1st Circuit applies obliterated serial number increase despite a second visible number. (330) Guideline §2K2.1(b)(4)(B) provides for a four-level increase if the firearm involved in a felon-in-possession conviction “had an altered or obliterated serial number.” Defendant’s pistol had an obliterated serial number on the frame and an unaltered serial number on the slide. He argued that the district court erred in applying the enhancement because the serial number, although obliterated in one place, remained unaltered elsewhere on the gun. The First Circuit upheld the enhancement. The text of the guideline required only “an altered or obliterated serial number,” U.S.S.G. §2K2.1(b)(4)(B). The guideline’s text did not require that all of the gun’s serial numbers be so affected. Here, the complete defacement of the serial number on the frame of the firearm resulted in the required obliteration. U.S. v. Serrano-Mercado, __ F.3d __ (1st Cir. May 1, 2015) No. 13-1730.
1st Circuit affirms despite error in finding that felon-in-possession offense was a crime of violence. (330) (742) Defendant was convicted of being a felon in possession of a firearm. The district court applied a base offense level of 24 under §2K2.1(a)(2) based on its finding that defendant had two prior felony convictions for a crime of violence. On appeal, the parties agreed the district court erred when it determined that defendant’s prior felon-in-possession offense was a crime of violence. The First Circuit accepted the government’s concession, but found that the procedural error was harmless. Incorrect application of the guidelines is harmless error where the district court specifies that a particular issue did not affect the sentence imposed. Here, the district court emphasized defendant’s substantial criminal history, and the fact that every previous probation, parole, or supervised release he served had been revoked, showing a lack of respect for the law and the need for a longer sentence. The court “clearly identified the contested crime-of-violence issue … and adequately explained its overall sentence applying 18 U.S.C. §3553(a).” U.S. v. Thibeaux, __ F.3d __ (1st Cir. May 4, 2015) No. 14-1961.
8th Circuit approves stolen firearm increase despite defendant’s claim that he intended to return gun. (330) Defendant was convicted of being a felon in possession of a firearm. Hines, defendant’s “occasional” girlfriend, had previously reported to police that the gun had been stolen. Police found the weapon at defendant’s apartment. Defendant testified at trial that he took the firearm from Hines after an incident during which he and Hines argued, she threatened him with the gun, and the gun accidentally discharged. He further testified that he did not return the gun to Hines immediately for fear that she would use it against him again; that he gave the gun to his mother because he knew that, as a convicted felon, he was not permitted to possess the gun; and that he intended to return the gun to Hines eventually. The Eighth Circuit upheld a §2K2.1(b)(4) enhancement for a “stolen” firearm. Although “intent to permanently deprive” is an element of common-law larceny, §2K2.1(b)(4) does not require a theft equivalent to common-law larceny. Even if defendant intended to return the gun, the undisputed facts were sufficient to show that he wrongfully took the firearm with the intent to deprive Hines of her ownership rights. U.S. v. Mathews, __ F.3d __ (8th Cir. May 5, 2015) No. 14-2574.
8th Circuit agrees that defendant possessed firearms that confederate sold to undercover agents. (330) Defendant pled guilty to firearms charges. The district court applied an enhancement under §2K2.1(b)(1)(B) for possessing 8 to 24 firearms. Defendant conceded that he possessed the six firearms that he sold to the undercover agents by himself, but he argued that he did not possess another 11 firearms that his associate Lee sold to the agents and for which defendant received a finder’s fee. The Eighth Circuit found no error. The district court reasonably inferred from their conduct that the defendant and Lee had an implicit agreement to sell the firearms to the undercover agents. Defendant and Lee worked in concert. They brought value to the transaction and were compensated accordingly. Defendant provided access to the buyer while Lee provided access to the firearms. The number of transactions, the pattern of the transactions, and the fact that both were compensated for the transactions all supported the conclusion that they had an implicit agreement to illegally sell firearms. Therefore, defendant could be held accountable for the number of firearms that he jointly possessed with Lee in furtherance of a joint criminal enterprise. U.S. v. Sacus, __ F.3d __ (8th Cir. Apr. 30, 2015) No. 14-1361.
8th Circuit says increase based on agent’s cover identity was not sentencing manipulation. (135)(330) Defendant sold firearms to undercover agents. The district court added enhancements under §§2K2.1(b)(1), (5), and (6) for selling the firearms to someone defendant knew should not have them and for selling firearms that defendant knew would be taken out of the country. An agent had represented to defendant that he had previously served more than a year in prison, that he belonged to an outlaw motorcycle gang, and that the firearms would be transported to Mexico. The Eighth Circuit rejected defendant’s claim that basing the enhancements on fictitious facts made up by the agents constituted sentencing manipulation. The agent gave specific and legitimate law enforcement reasons for providing this cover identity. A recent prison release would explain the agent’s newness to the neighborhood and why nobody knew him. This would also mesh with telling defendant that he belonged to an outlaw biker gang. The agent also testified that telling defendant that the firearms would be transported to Mexico or to an outlaw biker gang gave him an avenue to buy as many firearms as defendant was willing to sell. U.S. v. Sacus, __ F.3d __ (8th Cir. Apr. 30, 2015) No. 14-1361.
11th Circuit upholds firearm trafficking increase. (330) Defendant, who could not lawfully possess a firearm, paid White, a co-defendant, to buy weapons for him. Defendant then smuggled the guns to his brother in Jamaica. The Eleventh Circuit upheld the application of a §2K2.1(b)(5) enhancement, which applies if the offender “engaged in the trafficking of firearms.” Defendant acknowledged that the government proved that he transferred to someone else, or received with the intent to transfer to someone else, more than two firearms. Moreover, there was sufficient evidence to find that defendant knew that his conduct would result in the transfer of a firearm to an individual “who intended to use or dispose of the firearm unlawfully.” Defendant told White that he was “transporting” the firearms in order to make some money. To facilitate his transportation of the firearms, he directed White to buy smaller caliber guns. The evidence further supported the inference that defendant knew that the firearms he obtained from White would be hidden in cars that were being shipped to Jamaica, where defendant’s brother would retrieve the smuggled firearms. U.S. v. Asante, __ F.3d __ (11th Cir. Apr. 6, 2015) No. 13-15651.
11th Circuit upholds firearm exportation enhancement based on recorded phone call between conspirators. (330) Defendant, who could not lawfully possess a firearm, paid White, a co-defendant, to buy weapons for him. Defendant then smuggled the guns to his brother in Jamaica. The district court applied a four-level enhancement for exporting firearms under §2K2.1(b)(6)(A). In recorded calls, defendant assured White that the guns White bought for defendant were smuggled out of the United States in cars sent to Jamaica, where defendant’s brother retrieved them. The Eleventh Circuit ruled that this was sufficient evidence for the district court to find that the firearms actually left the United States. U.S. v. Asante, __ F.3d __ (11th Cir. Apr. 6, 2015) No. 13-15651.
11th Circuit says firearm sentence at bottom of guideline range was substantively reasonable. (330)(742) Defendant, who could not lawfully possess a firearm, paid a co-defendant to buy weapons for him. Defendant then smuggled the guns to his brother in Jamaica. The district court found that defendant’s advisory guideline range was 46-57 months, and sentenced him to 46 months. The Eleventh Circuit held that defendant did not meet his burden of showing that the guideline sentence was substantively unreasonable. The district court considered and discussed the §3553(a) factors and rejected defendant’s request for a below-guidelines sentence. The court noted that defendant’s offense, particularly in exporting firearms outside the United States, was very serious; a significant sentence was necessary to deter others from sending illegal firearms to poor countries; defendant’s prior criminal history, though nonviolent, “was not very good”; even though defendant apologized; he did not really appear remorseful; and the fact that defendant had a wife and two young daughters did not warrant a below-guideline sentence. U.S. v. Asante, __ F.3d __ (11th Cir. Apr. 6, 2015) No. 13-15651.
11th Circuit holds that firearms trafficking and exportation enhancements did not constitute improper double counting. (125)(330) Defendant pled guilty to firearms charges based on a scheme in which defendant, who could not lawfully possess a firearm, paid his co-defendant to buy weapons for defendant. The district court applied a §2K2.1(b)(5) enhancement for engaging in the trafficking of firearms and an enhancement under §2K2.1(b)(6)(A) for exporting firearms. The Eleventh Circuit held that applying both the trafficking and exporting enhancements to defendant did not amount to impermissible double counting. Each of these enhancements addressed “conceptually separate notions relating to sentencing.” The trafficking enhancement applies to conduct that the defendant knows or has reason to believe will result in a firearm being transferred to someone whose possession or use of that weapon is unlawful, regardless of whether that unlawful use or possession occurs in or out of the United States. The exporting enhancement, on the other hand, is concerned with the defendant’s intent to export firearms out of the United States, even if the offender was not trafficking. U.S. v. Asante, __ F.3d __ (11th Cir. Apr. 6, 2015) No. 13-15651.
8th Circuit upholds resentencing defendant for use of a firearm. (330) Defendant was initially convicted of drug and firearms counts, and sentenced to 30 years. On his first appeal, the Eighth Circuit vacated certain convictions, but upheld his conviction for use of a firearm in connection with a drug trafficking crime. On remand, the district court found that the seven-year statutory minimum for brandishing a firearm applied, see 18 U.S.C. §924(c)(1)(A)(ii), and sentenced defendant to 300 months. The court added that it would have given the same sentence even if it had determined that the five-year minimum under §924(c)(1)(A)(i) applied. The Eighth Circuit again remanded for resentencing because by the time of the second appeal, the Supreme Court had decided Alleyne v. U.S., 133 S. Ct. 2151 (2013) which barred the district court from finding, where the jury had not found, that defendant had “brandished” a firearm. On remand, the district court resentenced defendant to 300 months, repeating its earlier statement that “whether or not this is a five-year mandatory minimum or seven-year mandatory minimum, my sentence would still be the same.” But, the court clarified, defendant faced “a five-year mandatory minimum, not a seven.” The Eighth Circuit affirmed, finding defendant was properly resentenced for using a firearm, not brandishing a firearm. The new, correct sentence for using a firearm presented no Alleyne issues because the jury specifically found that defendant had used a firearm in relation to a drug-trafficking offense. U.S. v. Lara-Ruiz, __ F.3d __ (8th Cir. Feb. 24, 2015) No. 13-3509.
10th Circuit rules Colorado “sexual assault-10 years age difference” was not a crime of violence. (330) (520) Defendant was convicted of firearms charges, and received an enhanced offense level under § 2K2.1(a)(2) based on the district court’s finding that his prior Colorado conviction for “sexual assault-10 years age difference” was a crime of violence. Colo.Rev.Stat. § 18–3–402(1)(e). The Tenth Circuit reversed, holding that the offense was not a crime of violence. The offense was not a “forcible sex offense” under Application Note 1 simply because the victim was incapable of giving legal consent. The inclusion of the modifier “forcible” demonstrated that some sex offenses are non-forcible. The absence of legal consent did not preclude the possibility, in the context of statutory rape, of factual consent. The sexual assault also did not fall within the residual clause of § 4B1.2(a)(2) as an offense that “otherwise involves conduct that presents a serious potential risk of physical injury to another. The Colorado statute was akin to the strict liability statute at issue in Begay v. U.S., 553 U.S. 137 (2008). Under Begay, this was not the type of crime that Congress intended to cover. U.S. v. Wray, __ F.3d __ (10th Cir. Jan. 27, 2015) No. 14-1086.
1st Circuit affirms upward variance in firearms case. (330)(741) Defendant’s plea agreement recommended a guidelines sentence of 60 months for his firearms offense. The court imposed a 72-month sentence, citing the seriousness of the offense in Puerto Rico, where firearms crimes are pervasive, and because defendant was on probation at the time of the offense. The First Circuit affirmed the upward variance. The district court adequately considered the sentencing factors in 18 U.S.C. § 3553(a). The court’s acknowledgment of defendant’s history of drug abuse and recommendation of a drug treatment program belied defendant’s complaint that the court failed to consider rehabilitation. The court did not place too much emphasis on the prevalence of firearms and violent crime in Puerto Rico. A sentencing court may take into account the characteristics of the community in which the crime took place and the need for deterrence. U.S. v. Zapata-Vazquez, __ F.3d __ (1st Cir. Jan. 30, 2015) No. 13-2170.
Supreme Court orders re-argument on validity of ACCA residual clause. (330)(540) The Supreme Court granted argument to determine whether a Minnesota conviction for possession of a short-barreled shotgun is a “violent felony” under the residual clause of the Armed Career Criminal- Act, 18 U.S.C. 924(e) (2) (B) (ii). After hearing argument on that issue, the Court set the case for reargument and directed the parties to address whether the residual clause in the ACCA is unconstitutionally vague. Johnson v. U.S., __ U.S. __. 135 S.Ct. __ (2015) (setting reargument).
6th Circuit upholds “another felony” increase where defendants stole guns and sold them for drugs. (330) Defendants stole firearms and sold them, in part, for drugs. They pled guilty to two counts of theft of firearms from a licensed dealer. The district court applied a §2K2.1(b)(6)(B) enhancement because the firearms were used connection with another felony offense—the distribution of heroin. The Sixth Circuit affirmed. Trading firearms for drugs constituted “use [of a firearm] … in connection with another felony. By agreeing to sell firearms to a drug dealer in exchange for money and heroin, defendants facilitated the distribution of heroin; but for the transfer of guns to the drug dealer, the drug distribution would never have occurred. Although it was true that the drugs facilitated the firearm trafficking by serving as a form of consideration, it was equally true that the firearms facilitated the heroin distribution. U.S. v. Sweet, __ F.3d __ (6th Cir. Jan. 20, 2015) No. 14-1226.
6th Circuit says increases for trafficking firearms and using guns in “another felony” were not double counting. (125)(330) Defendants stole firearms and sold them, in part, for drugs. They pled guilty to two counts of theft of firearms from a licensed dealer. The district court applied enhancements under §2K2.1(b)(5), because defendants trafficked firearms, and §2K2.1(b)(6)(B), because the firearms were used in connection with another felony, the distribution of heroin. The Sixth Circuit rejected defendants’ argument that applying both enhancements was improper double counting. Although they both relied on the same conduct—the transfer of firearms to a drug dealer—they punished different aspects of defendants’ conduct. The (b)(5) enhancement was for transferring guns to an individual who could not lawfully possess them, see note 13 to §2K2.1, while the (b)(6)(B) enhancement was for using the firearms to facilitate the distribution of heroin. U.S. v. Sweet, __ F.3d __ (6th Cir. Jan. 20, 2015) No. 14-1226.
1st Circuit finds no plain error where defendant was aware of mandatory minimum and consecutive sentence requirement. (330)(761) Defendant pleaded guilty to two robbery charges, and one firearms charge. The firearms charge carried a possible death sentence and required a mandatory minimum of ten years, to be served consecutively to any other sentence. The district court sentenced defendant to 40 years: 20 for the two robbery counts, served concurrently, and 20 for the firearm count, served consecutively. Defendant argued for the first time on appeal, and the government conceded, that the district court erred by failing to give notice of the 10-year mandatory minimum for firearm charge, or the requirement that the sentence be served consecutively. On plain error review, the First Circuit found that defendant’s substantial rights were not affected by this error, and affirmed. To establish plain error, defendant was required to show “a reasonable probability that, but for the error, he would not have entered the plea.” However, the record clearly showed that defendant was aware at that hearing of the mandatory ten-year minimum for the firearm count and that it was consecutive. There was little probability that he would not have entered his plea had he been informed of those facts at the Rule 11 hearing. U.S. v. Santiago, __ F.3d __ (1st Cir. Dec. 24, 2014) No. 14-1219.
8th Circuit upholds enhancement for using gun in prior shooting. (330) Defendant was convicted of being a felon in possession of a firearm. He received a four-level enhancement under § 2K2.1(b)(6)(B) based on the court’s finding that defendant committed a prior shooting in Des Moines. The Eighth Circuit affirmed, rejecting defendant’s argument that the court erred in making this finding itself rather than submitting it to the jury. In applying the § 2K2.1(b)(6)(B) enhancement, the court neither exceeded the statutory maximum nor increased a statutory mandatory minimum. Thus, the court did not err in conducting its own fact-finding for the purposes of applying the enhancement. There was sufficient evidence supporting the enhancement. Clear ballistics evidence showed that the gun used in the shooting was the same one found under defendant’s seat five weeks later. One eyewitness identified defendant as the shooter and another gave a description of the shooter that matched defendant. Although there was conflicting testimony from other eyewitnesses, credibility determin¬a¬tions are within the discretion of the district court and are given special deference. U.S. v. Battle, __ F.3d __ (8th Cir. Dec. 22, 2014) No. 13-3134.
Supreme Court applies Apprendi to mandatory minimum sentences. (330) In Apprendi v. New Jersey, 530 U.S. 466 (2000), the Court held that any fact that increases the defendant’s sentence must be alleged in the indictment and proved beyond a reasonable doubt. Subsequently, in Harris v. U.S., 536 U.S. 545 (2002), overruled by Alleyne v. U.S., 133 S.Ct. 2151 (2013), the Court held that Apprendi did not apply to facts that require imposition of a mandatory minimum sentence. Here, defendant was convicted of using or carrying a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c), which carries a sentence of five years to life. At sentencing, the district court enhanced defendant’s sentence under § 924(c) because defendant had “brandished” the firearm. The Supreme Court, in a decision written by Justice Thomas, overruled Harris and held that “brandishing” the firearm is an element of the offense defined by § 924(c) and that a defendant’s sentence under that statute may be enhanced because he brandished a firearm only if that fact is alleged in the indictment and submitted to the jury. Justice Sotomayor, and two justices, concurred; Justice Breyer concurred in part and concurred in the judgment; Chief Justice Roberts dissented in an opinion joined by two justices; and Justice Alito dissented. Alleyne v. U.S., __ U.S. __, 133 S.Ct. 2151 (2013).
Supreme Court to decide if case upholding mandatory minimum sentences should be overturned. (330) In Harris v. U.S., 536 U.S. 545 (2002), overruled by Alleyne v. U.S., 133 S.Ct. 2151 (2013), the Supreme Court held that the rule of Apprendi v. New Jersey, 530 U.S. 466 (2000)—that facts that increase a defendant’s sentence must be alleged in the indictment and proved to the jury—does not preclude a judge from finding facts to impose a mandatory minimum sentence. On October 5, 2012, the Supreme Court granted certiorari to determine whether Harris should be overruled. Like Harris, the case granted by the Court involved a finding that defendant brandished a firearm and therefore was subject to an increased sentence under 18 U.S.C. § 924(c). Alleyne v. U.S., __ U.S. __, 133 S.Ct. 420 (2012) (granting certiorari).
Supreme Court says § 924(c) requires mandatory sentence even if other count carries higher mandatory sentence. (330) Under 18 U.S.C. § 924(c)(1), a defendant who uses or carries a firearm during and in relation to a drug trafficking offense or crime of violence, or possesses a firearm in furtherance of such an offense is subject to a mandatory minimum sentence “except to the extent that a greater minimum sentence is otherwise provided by . . . any other provision of law.” Defendants who were subject to mandatory minimum sentences for other offenses argued that the “except” clause exempted them from the mandatory minimum sentence required by § 924(c). In a unanimous decision authored by Justice Ginsburg, the Supreme Court rejected that contention and held that a defendant is subject to a mandatory, consecutive sentence under § 924(c) and is not spared from that sentence by virtue of receiving a higher mandatory sentence on a different count of conviction. Abbott v. U.S., __ U.S. __, 131 S.Ct. 18 (2010).
Supreme Court says § 924(c) requires mandatory sentence even if other count carries higher mandatory sentence. (330) Under 18 U.S.C. § 924(c)(1), a defendant who uses or carries a firearm during and in relation to a drug trafficking offense or crime of violence, or possesses a firearm in furtherance of such an offense is subject to a mandatory minimum sentence “except to the extent that a greater minimum sentence is otherwise provided by . . . any other provision of law.” Defendants who were subject to mandatory minimum sentences for other offenses argued that the “except” clause exempted them from the mandatory minimum sentence required by § 924(c). In a unanimous decision authored by Justice Ginsburg, the Supreme Court rejected that contention and held that a defendant is subject to a mandatory, consecutive sentence under § 924(c) and is not spared from that sentence by virtue of receiving a higher mandatory sentence on a different count of conviction. Abbott v. U.S., __ U.S. __, 131 S.Ct. 18 (2010).
Supreme Court to decide if sentence enhancement for machinegun is offense element. (330) Under 18 U.S.C. § 924(c)(1), it is a crime to use or carry a firearm during and in relation to a crime of violence or drug-trafficking offense or to possess a firearm in furtherance of such an offense. When the firearm is a machinegun, § 924(c)(1)(B)(ii) requires imposition of a 30-year mandatory minimum sentence. The First Circuit held that to obtain the 30-year sentence, the indictment must allege, and the government must prove beyond a reasonable doubt to a jury, that the firearm the defendant used, carried, or possessed was a machinegun. The Supreme Court granted certiorari to decide whether the sentence enhancement to a 30-year minimum, when the firearm is a machinegun, is an element of the offense that must be charged and proved to a jury beyond a reasonable doubt, or instead a sentencing factor that may be found by a judge by the preponderance of the evidence. U.S. v. O’Brien, __ U.S. __, 130 S.Ct. 49 (2009) (granting certiorari), and judgment affirmed, U.S. v. O’Brien, 130 S.Ct. 2167 (2010).
Supreme Court says firearm need not be intentionally discharged to trigger mandatory minimum. (330) Under 18 U.S.C. § 924(c), a person convicted of using or carrying a firearm during and in relation to a crime of violence or a drug-trafficking crime is subject to a five-year mandatory minimum sentence. The mandatory minimum sentence rises to 10 years if the firearm was “discharged.” Defendant participated in a bank robbery in which a firearm was discharged, but argued that he should not receive the 10-year mandatory minimum because the discharge was accidental. In the Supreme Court, Chief Justice Roberts, joined by six Justices, held that § 924(c) does not require a showing that the firearm was intentionally discharged. Instead, the Court held, the 10-year mandatory minimum applies if a gun is discharged in any fashion in the course of a crime of violence or drug-trafficking crime. Justices Stevens and Breyer filed dissents. Dean v. U.S., 556 U.S.568, 129 S.Ct. 1849 (2009).
Supreme Court defines “misdemeanor crime of domestic violence” for firearms purposes (330) Under 18 U.S.C. § 922(g)(9), it is a crime for a person convicted of a “misdemeanor crime of domestic violence” to possess a firearm. The Supreme Court held that an offense qualifies as a misdemeanor crime of domestic violence under 18 U.S.C. §921(a) 33)(A), even if it does not have as an element, a domestic relationship between the offender and the victim. In this case, the victim of the defendant’s battery was the defendant’s wife. U.S. v. Hayes, _ U.S. _, 129 S.Ct. 1079 (2009).
Supreme Court holds that statute barring carrying explosives during felony has no relational requirement. (229) Under 18 U.S.C. § 844(h)(2), it is a federal crime to carry an explosive “during the commission of” any federal felony. Defendant was convicted of carrying an explosive while making a false statement to a federal customs official, in violation of 18 U.S.C. § 1001. The Ninth Circuit held that to establish a violation of § 844(h)(2), the government must prove that defendant carried the explosive during and “in relation to” the federal felony. The Supreme Court in an opinion by Justice Stevens that was joined in full by five other justices, held that the Ninth Circuit erred in reading into the statute a requirement that explosives must be carried “in relation to” the underlying felony. U.S. v. Ressam, 553 U.S. 272, 128 S.Ct. 1858 (2008), on remand, U.S. v. Ressam, 679 F.3d 1069 (9th Cir. 2012).
Supreme Court to decide if accidental discharge of firearm triggers mandatory minimum. (330) Under 18 U.S.C. §924(c), a person who uses or carries a firearm during and in relation to a crime of violence or a drug-trafficking offense is subject to a five-year mandatory minimum sentence. The mandatory minimum rises to 10 years if the firearm is discharged during the offense. The Supreme Court granted certiorari to determine whether §924(c)(1)(A)(iii), which provides for the 10-year mandatory minimum, includes an implicit mens rea requirement that the firearm be discharged intentionally, rather than accidentally or involuntarily. Dean v. U.S., 555 U.S. __, 129 S.Ct. __ (Nov. 14, 2008) (granting certiorari).
Supreme Court to review firearm possession by person convicted of “misdemeanor crime of domestic violence.” (330) Under 18 U.S.C. § 922(g)(9), it is a crime for a person convicted of a “misdemeanor crime of domestic violence” to possess a firearm. In U.S. v. Hayes, 482 F.3d 749 (4th Cir. 2007), the Fourth Circuit dismissed the indictment against the defendant because it failed to allege that the defendant’s state misdemeanor battery conviction was based on an offense that has, as an element, a domestic relationship between the offender and the victim. On March 24, 2008, the Supreme Court granted certiorari to decide whether, to qualify as a “misdemeanor crime of domestic violence” under 18 U.S.C. § 921(a)(33)(A), an offense must have as an element, a domestic relationship between the offender and the victim. U.S. v. Hayes, __ U.S. __, 128 S. Ct. __ (March 24, 2008) No. 07-608 (granting certiorari).
Supreme Court to decide if explosives must be carried “in relation to” felony to trigger mandatory minimum. (330) Under 18 U.S.C. § 844(h)(2), a person convicted of carrying an explosive during a felony offense is subject to a mandatory 10-year sentence. In the case of the so-called “Millennium Bomber,” Ahmed Ressam, the Ninth Circuit held that the mandatory minimum did not apply unless the government proved that the explosives were carried in relation to the underlying felony. The Supreme Court granted certiorari to decide whether § 844(h)(2) requires the government to prove that the explosives must be carried “in relation to” the underlying felony. U.S. v. Ressam, __ U.S. __, 128 S.Ct. 741 (2007) (granting certiorari).
Supreme Court says that ACCA exemption does not apply to offender who never lost civil rights. (330) The Armed Career Criminal Act, 18 U.S.C. § 924(e), provides that a defendant convicted of possession of a firearm by a convicted felon is subject to a 15-year mandatory minimum sentence if he has three prior convictions for “violent felonies.” A state-law misdemeanor may qualify as a “violent felony” if it carries a maximum sentence of more than two years. A prior conviction that otherwise constitutes a violent felony does not qualify if the defendant “has had [his] civil rights restored” for the conviction. The Supreme Court unanimously held that the ACCA’s exemption for convictions for which the offender’s civil rights have been restored does not apply to defendants who did not lose their civil rights upon conviction. Accordingly, defendant’s misdemeanor conviction counted as a violent felony. Logan v. U.S., 552 U.S. 23, 128 S.Ct. 475 (2007).
Supreme Court says offender must show “realistic possibility” that prior conviction was outside “generic” definition. (330) In determining whether a prior conviction is a “theft offense” under 8 U.S.C. §1101(a)(43), the Supreme Court held, in accord with Taylor v. U.S., 495 U.S. 575 (1990) that Congress intended a modern “generic” definition. In this civil immigration case, the alien argued that the California statute under which he was convicted included conduct outside the “generic” definition. The Supreme Court held that “to find that a state statute creates a crime outside the generic definition” requires a “realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime.” To show such a realistic possibility, the offender “must at least point to his own case or other cases in which the state courts in fact did apply the statute in the special (nongeneric) manner for which he argues.” Here, the offender made no such showing. Gonzalez v. Duenas-Alvarez, 127 S.Ct. 815 (2007).
Supreme Court holds that “theft offense” includes aiding and abetting that offense. (330) An aggravated felony under the immigration statutes includes a “theft offense.” Defendant was convicted under a California statute that reaches “any person who is a party or an accessory to or an accomplice in the driving or unauthorized taking or stealing of a vehicle.” The Ninth Circuit held that the statute did not categorically define a “theft offense” because a person can aid or abet the offense without committing the elements of a generic theft. The Supreme Court reversed and held that the term “theft offense” includes aiding and abetting that offense. Gonzalez v. Duenas-Alvarez, 127 S.Ct. 815 (2007).
Supreme Court limits evidence used to determine if prior conviction is “generic” felony. (330) The Armed Career Criminal Act, 18 U.S.C. § 924(e), mandates a 15-year minimum mandatory sentence for defendants convicted of possessing a firearm who have three prior convictions for serious felonies, including burglary. In Taylor v. U.S., 495 U.S. 575 (1990), the Court held that only “generic burglaries” qualified as predicate felonies under the ACCA and that in determining whether a defendant’s prior conviction was a generic burglary, a court could look to statutory elements, charging documents, and jury instructions. In a 5-3 decision, the Supreme Court held that a sentencing court may not look to police reports or complaint applications to determine whether a defendant’s earlier guilty plea showed that defendant committed a generic burglary. Instead, a court is limited to the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge. Shepard v. U.S., 544 U.S. 13, 125 S.Ct. 1254 (2005).
Justice Thomas argues that prior convictions should be subject to Apprendi. (330) In Apprendi v. New Jersey, 530 U.S. 466 (2000), the Supreme Court held that facts, other than prior convictions, that increase the defendant’s maximum sentence must be alleged in the indictment and proved to the jury beyond a reasonable doubt. In excepting prior convictions from the Apprendi rule, the Court preserved its ruling in Almendarez-Torres v. U.S., 523 U.S. 224 (1998). In a concurring opinion in a decision on the evidence necessary to establish that a prior offense qualifies as a predicate for an increased sentence under the Armed Career Criminal Act, Justice Thomas asserted that “a majority of the Court now recognizes that Almendarez-Torres was wrongly decided” and argued that it should be reconsidered. Shepard v. U.S., 544 U.S. 13, 125 S.Ct. 1254 (2005) (Thomas, J., concurring).
Supreme Court holds that Apprendi does not apply to mandatory minimum sentences. (330) A divided Supreme Court held that the rule announced in Apprendi v. New Jersey, 530 U.S. 466 (2000), which requires that any fact (other than the fact of a prior conviction) that increases the statutory maximum sentence for an offense be submitted to a jury and proved beyond a reasonable doubt, does not apply to facts that trigger mandatory minimum sentences. Thus, the Court held, the government need not allege and prove beyond a reasonable doubt the fact that a defendant charged with using or carrying a firearm during and in relation to a drug trafficking offense, “brandished” the firearm in order to receive the mandatory minimum seven-year sentence triggered by that finding. Harris v. U.S., 536 U.S. 545, 122 S. Ct. 2406 (2002), overruled by Alleyne v. U.S., 133 S.Ct. 2151 (2013).
Supreme Court holds that “machine gun” in § 924(c)(1) is an element of a separate offense, not a sentencing factor. (330) Under 18 U.S.C. § 924(c)(1), a defendant who uses or carries a firearm in relation to any crime of violence is sentenced to imprisonment for five years, “and if the firearm is . . . a machine gun . . . to imprisonment for thirty years.” In a unanimous opinion written by Justice Breyer, the Supreme Court held that § 924(c)(1) uses the word “machine gun” (and similar words) to state an element of a separate, aggravated crime. The court relied on the structure of the statute and the fact that courts have not typically used firearm types (such as “machine gun”) as sentencing factors where the use or carrying of the firearm is itself the substantive crime. Moreover, asking a jury, rather than a judge to decide whether a defendant used or carried a machine gun “would rarely complicate a trial or risk unfairness.” The legislative history favored this interpretation. Finally, the length and severity of the mandatory sentence “weighs in favor of treating such offense-related words as referring to an element.” Castillo v. U.S., 530 U.S. 120 (2000).
Supreme Court says gun is “carried” even if it is in locked glove box or trunk of a car. (330) Under 18 U.S.C. § 924(c)(1), a person who “uses or carries a firearm” “during and in relation to” “a drug trafficking crime,” is subject to a five year mandatory minimum prison term. In a 5-4 opinion written by Justice Breyer, the Supreme Court held that the phrase “carries a firearm” is not limited to the carrying of firearms on the person. “Rather it also applies to a person who knowingly possesses and conveys firearms in a vehicle, including in the locked glove compartment or trunk of a car, which the person accompanies.” This ruling follows the unanimous conclusion of the circuit courts of appeals. Justice Ginsburg dissented, joined by Chief Justice Rehnquist and Justices Scalia and Souter. Muscarello v. U.S., 524 U.S. 125, 118 S.Ct. 1911 (1998).
Supreme Court says felon’s right to possess rifles is not restored if handguns are forbidden. (330) Under 18 U.S.C. § 922(g)(1), a convicted felon may not possess a firearm. Until 1986, federal law alone determined whether a state conviction counted as a prior felony, regardless of whether the state had expunged the conviction. Dickerson v. New Banner Institute, Inc.,460 U.S. 103, 119-122 (1983). In 1986, Congress modified this aspect of Dickerson by amending 18 U.S.C. § 921(a)(20) to provide that state law governed in determining whether a state conviction counted, adding that convictions for which the defendant’s civil rights had been restored did not count “unless such . . . restoration of civil rights expressly provides that the person may not . . . possess firearms.” In the present case, Massachusetts law allowed petitioner to possess rifles and shotguns because he had the necessary firearm permit and his felony convictions were more than five years old. However, Massachusetts law forbade him to possess handguns outside his home or business. Nevertheless, he was convicted under § 922(g)(1) based on his possession of rifles and shotguns. The Supreme Court affirmed his convictions in a 6-3 opinion written by Justice Kennedy. The court held that any “state weapons limitation on an offender activates the uniform federal ban on possessing any firearms at all.” “This is so even if the guns the offender possessed were ones the State permitted him to have.” The court recognized that any reading of the statute “creates incongruities,” but that “[p]ermission to possess one gun cannot mean permission to possess all.” Justices Thomas, Scalia and Souter dissented. Caron v. U.S., 524 U.S. 308, 118 S.Ct. 2007 (1998).
Supreme Court permits habeas challenge to § 924(c) gun conviction if petitioner is “actually innocent.” (330) In a 6-3 opinion written by Chief Justice Rehnquist, the Supreme Court held that a defendant who pleaded guilty to “using” a firearm in violation of 18 U.S.C. § 924(c) can have his plea set aside if he can show “actual innocence,” i.e., that he did not “actively employ” the firearm as required by the Supreme Court’s decision in Bailey v. U.S., 516 U.S. 137, 144 (1995). The court emphasized that “actual innocence” means “factual innocence, not mere legal insufficiency.” In other words, “the government is not limited to the existing record to rebut any showing that petitioner might make.” Rather, on remand the government will be “permitted to present any admissible evidence of petitioner’s guilt even if that evidence was not presented during petitioner’s plea colloquy and would not normally have been offered before [the] decision in Bailey.” “In cases where the Government has forgone more serious charges in the course of plea bargaining, petitioner’s showing of actual innocence must also extend to those charges.” Bousley v. U.S., 523 U.S. 614, 118 S.Ct. 1604 (1998).
Supreme Court requires 924(c) firearm sentence to be consecutive to state sentence. (330) Under 18 U.S.C. § 924(c)(1), a person who uses or carries a firearm during and in relation to any drug trafficking crime or crime of violence must be sentenced to five years in custody. The statute adds that the term of imprisonment shall not run concurrently with any other term of imprisonment. In a 7-2 opinion written by Justice O’Connor, the Supreme Court held that the phrase “any other term of imprisonment” means what it says and therefore forbids a court from making the five year term concurrent with any state-imposed sentence. Reversing the Tenth Circuit’s decision in this case, U.S. v. Gonzales, 65 F.3d 814 (1995), the Supreme Court found no ambiguity in Congress’s decision to prohibit concurrent sentences instead of simply mandating consecutive sentences. Therefore the court found no reason to resort to legislative history. Justices Stevens and Breyer dissented, arguing that the statute applied only to federal sentences. U.S. v. Gonzales, 520 U.S. 1, 117 S.Ct. 1032 (1997).
Supreme Court to decide whether § 924(c) sentence can be concurrent to state sentence. (330) In U.S. v. Gonzales, 65 F.3d 814 (10th Cir. 1995), the Tenth Circuit held that a mandatory five-year sentence under 18 U.S.C. § 924(c), for using or carrying a firearm in relation to a drug trafficking crime or crime of violence could run concurrently with a previously-imposed state sentence which the defendant had already begun to serve, for the same conduct. The court reached this conclusion even though § 924(c) requires the sentence to be consecutive with “any other term of imprisonment including that imposed for the crime of violence or drug trafficking crime in which the firearm was used or carried.” On June 17, 1996, the Supreme Court granted certiorari to review this ruling. U.S. v. Gonzales, 518 U.S. 1003, 116 S.Ct. 2522 (1996) (granting certiorari).
Supreme Court says mere presence of firearm is not “use” under § 924(c)(1). (330) Under 18 U.S.C. § 924(c)(1) a defendant who “uses” or carries a firearm during and in relation to any crime of violence or drug trafficking crime is subject to a five year mandatory minimum sentence. In a unanimous opinion written by Justice O’Connor, the Supreme Court held that “use” includes the acts of brandishing, displaying, bartering, striking with, and firing or attempting to fire, a firearm, as well as the making of a reference to a firearm in a defendant’s possession. However, it does not include mere placement of a firearm for protection at or near the site of a drug crime or its proceeds or paraphernalia, or the nearby concealment of a gun “to be at the ready for an imminent confrontation.” The “inert presence” of a firearm is not sufficient to constitute use even if it emboldens or protects its owner. “If the gun is not disclosed or mentioned by the offender, it is not actively employed, and it is not ‘used.’” The court distinguished § 924(d)(1) which reaches firearms that are intended to be used, and sentencing guideline § 2D1.1(b)(1) which provides an enhancement for a firearm possessed during a drug offense. The court also noted that the “carry” prong of § 924(c)(1) may reach other offenders. Neither of the cases before the court satisfied the “use” definition. In one case, the firearm was in a locked car trunk and in the other, it was in a locked footlocker in a closet. The cases were remanded to determine liability under the “carry” prong of § 924(c). Bailey v. U.S., 516 U.S. 137 (1995).
Supreme Court limits collateral attack on state convictions used to enhance sentence. (330) Defendant was convicted of possession of a firearm by a felon under 18 U.S.C. §922(g)(1). At sentencing, the judge sentenced him under the Armed Career Criminal Act (ACCA), 18 U.S.C. §924(e)(1), because he had three prior state felony convictions. Defendant claimed his prior state convictions were invalid due to ineffective assistance of counsel. The district court refused to entertain this collateral attack, noting that “[u]nlike the statutory scheme for enhancement of sentences in drug cases [§924(e)(1)] provides no statutory right to challenge prior convictions.” In a 6-3 opinion written by Chief Justice Rehnquist, the Supreme Court affirmed, holding that with the sole exception of convictions obtained in violation of the right to counsel, a defendant has no right to collaterally attack prior state convictions that are used to enhance his sentence under the Armed Career Criminal Act. “The statute focuses on the fact of the conviction and nothing suggests that the prior final conviction may be subject to collateral attack for potential Constitutional errors before it may be counted.” Justices Souter, Blackmun and Stevens dissented. Custis v. U.S., 511 U.S. 485, 114 S.Ct. 1732 (1994).
Supreme Court says trading firearm for drugs constitutes “use” of firearm. (330) Under 18 U.S.C. section 924(c)(1), a defendant who uses a firearm during a drug trafficking crime must be sentenced to five years imprisonment. Where as here, the firearm is a “machine gun” or is fitted with a silencer, the mandatory sentence is 30 years. In this case, the defendant offered to trade his MAC-10 machine gun for two ounces of cocaine. In a 6-3 opinion written by Justice O’Connor, the Supreme Court held that defendant’s offer to trade the gun for drugs constituted “use” within the meaning of section 924(c). The court thus overruled U.S. v. Phelps, 877 F.2d 28 (9th Cir. 1989), which had held that using a gun as an item of barter did not constitute “use.” Justices Scalia, Stevens and Souter dissented. Smith v. U.S., 508 U.S. 223, 113 S.Ct. 2050 (1993).
Supreme Court says “second or subsequent conviction” in §924(c) applies to multiple guns charged in single indictment. (330) Defendant was convicted in a single trial of 6 separate bank robberies and 6 counts of using a firearm during a crime of violence, under 18 U.S.C. §924(c). That section provides for a consecutive five-year term for the use of a firearm, and a 20-year term “in the case of [a] second or subsequent conviction under this subsection.” Thus, for the second through sixth gun count convictions, the district court imposed 20-year consecutive sentences for a total of 105 years. Defendant argued there should have been 6 consecutive five-year terms rather than a five-year term and 5 consecutive 20-year terms. In a 6-3 opinion written by Justice Scalia, the Supreme Court affirmed, finding the second through sixth convictions in the single proceeding arose “in the case of [a] second or subsequent conviction” within the meaning of §924(c). The statute is not ambiguous and the term “conviction” refers to the finding of guilt that precedes entry of a final judgment of conviction. The dissent argued that the enhanced provisions should apply only in truly recidivist cases. Deal v. U.S., 508 U.S. 129, 113 S.Ct. 1993 (1993).
1st Circuit finds defendant who used straw buyer to obtain gun possessed gun in connection with drug trafficking. (330) Defendant, a convicted felon, was convicted of firearms charges after he arranged for a woman to purchase a gun for him from a licensed firearms dealer. The court applied a § 2K2.1(b)(6)(B) enhancement, finding defendant possessed the gun “in connection with another felony offense.” The First Circuit affirmed. First, there was sufficient evidence to support the court’s finding that defendant committed “another felony,” i.e., felony drug trafficking. Defendant had a previous conviction for felony drug-trafficking. After moving to New York, he chose to pal around with another drug trafficker, living with him and getting pulled over with him in a traffic stop. Defendant sold crack to the woman who bought the gun for him. Moreover, despite having no job, defendant had thousands of dollars in cash and 3.2 grams of marijuana on him when stopped by police. All of this evidence also supported the finding that defendant possessed a firearm “in connection” with the drug-dealing offense. Although the pistol found next to defendant was “unloaded and locked,” unloaded pistols can be reloaded, and even unloaded guns can “facilitate drug trafficking.” U.S. v. Matthews, __ F.3d __ (1st Cir. May 16, 2014) No. 13-1256.
1st Circuit applies increase for firearms locked in safe near marijuana operation. (330) Defendant was convicted of possessing firearms and ammunition as a prohibited felon, 18 U.S.C. § 922(g)(1), and manufacturing marijuana, 21 U.S.C. § 841(a)(1). He challenged the factual basis for a four-level increase under guideline § 2K2.1(b)(6) for possessing firearms “in connection with another felony offense”—in this case manufacturing marijuana. He noted that six of his seven guns were locked in a safe, and argued that they had no potential to facilitate his drug operation. However, the safe was near the marijuana operation in the small apartment and several witnesses agreed that defendant had access to the safe. Also a loaded pistol was found in his nightstand, and defendant simply asserted that it had nothing to do with drug cultivation. The First Circuit found no error in applying the enhancement. U.S. v. Widi, 684 F.3d 216 (1st Cir. 2012).
1st Circuit rules Massachusetts assault and battery of police officer was crime of violence. (330) Defendant pled guilty to firearms charges. Guidelines section 2K2.1(a)(3) provides for an enhanced offense level of 22 for certain firearms offenses if “the defendant committed any part of the instant offense subsequent to sustaining one felony conviction of … a crime of violence.” The First Circuit held that defendant’s prior Massachusetts convictions for assault and battery of a police officer (ABPO) qualified as a crime of violence under § 2K2.1(a)(3). In U.S. v. Dancy, 640 F.3d 455 (1st Cir. 2011), the court determined that ABPO, as defined by the Massachusetts statute, was a “violent felony” under the Armed Career Criminal Act (ACCA), a term “nearly identical in meaning” to “crime of violence” under the Sentencing Guidelines. Committing ABPO raises roughly the same risk of bodily harm as the offenses enumerated in 18 U.S.C. § 924(e)(2)(B)(ii), to which it is similar in kind. Given Dancy, ABPO was a crime of violence under the identical residual clause of § 4B1.2(a). U.S. v. Grupee, 682 F.3d 143 (1st Cir. 2012).
1st Circuit rules that New Mexico kidnapping, which included kidnapping by deceit to hold someone for service, was “crime of violence.” (330) Defendant pled guilty to being a felon in possession of a firearm. The district court found that defendant’s prior New Mexico conviction for kidnapping was a crime of violence, and set his offense level at 20. See § 2K2.1(a)(4)(A). Kidnapping is an enumerated crime of violence under Note 1 to § 4B1.2. The First Circuit concluded that the New Mexico offense fit within the generic definition of “kidnapping,” and thus it qualified as a crime of violence. New Mexico’s kidnapping statute included three elements of the generic definition: (1) restraining another; (2) by unlawful means; which included deception; and (3) for a criminal purpose. The third element was met by the statute’s four listed objects of required intent (ransom; hostage; involuntary service; death, physical injury, or sexual offense). Holding someone for service, as defendant alleged he did, was clearly akin to the other malicious purposes listed in the Model Penal Code. U.S. v. Jenkins, 680 F.3d 101 (1st Cir. 2012).
1st Circuit upholds use of defendant’s bail interview statements in PSR. (330) Defendant pled guilty to firearms charges, and received an enhanced sentence under §2K2.1(a)(6) based on the district court’s finding that he had a history of drug abuse, and was thus a “prohibited person.” During a bail interview, he had disclosed information about his past and present drug use. Defendant argued for the first time on appeal that the information about his substance abuse was obtained upon a promise of confidentiality, and that the inclusion of the information in his PSR, and its use at sentencing, violated his due process rights and Federal Rule of Criminal Procedure 32. The First Circuit ruled that defendant waived the due process argument, since it was not sufficiently developed. As for the Rule 32 claim, defendant could not show any plain error. Defendant did not present any evidence that he was promised confidentiality at the start of his bail interview, or that he made the statements at issue in reliance on that promise. Although there was a confidentiality notice at the top of the Pretrial Services Report, that report was published after defendant made the statements in question. U.S. v. Caparotta, 676 F.3d 213 (1st Cir. 2012).
1st Circuit approves upward variance for possessing machine gun in housing project. (330) Defendant was arrested in a housing project in possession of a loaded pistol equipped with a conversion clip that allowed it to operate as a fully automatic machine gun and accept extended ammunition magazines. Defendant also had on his person two extended magazines, loaded with 23 and 27 rounds, respectively. He pled guilty to unlawful possession of ammunition and a machine gun. His advisory guideline range was 33-41 months, but the district court sentenced him to 60 months, relying on the seriousness of the offense, defendant’s violent character, and defendant’s need for a strong deterrent. The First Circuit affirmed the upward variance. The district court “ably and conscientiously sifted the myriad of considerations that go into a criminal sentence and used sound judgment born of its experience and superior vantage point. The appellant has failed to establish that the district court committed either procedural or substantive error in exercising its sentencing judgment.” U.S. v. Gallardo-Ortiz, 666 F.3d 808 (1st Cir. 2012).
1st Circuit says facts for firearm increase need not to be proven beyond reasonable doubt. (330) Defendant was convicted of being a felon in possession of a firearm. The district court applied a four-level enhancement under § 2K2.1(b)(6)(B) for possessing a firearm “in connection with another felony offense.” The First Circuit rejected defendant’s claim that U.S. v. O’Brien, 130 S.Ct. 2169 (2010), required the facts underlying this enhancement to be proved beyond a reasonable doubt. O’Brien reiterated that elements of a crime that increase the penalty beyond the prescribed statutory limit must be proved beyond a reasonable doubt. It reaffirmed, however, that sentencing factors affecting a judge’s discretion within a statutorily prescribed range may be proved at sentencing by a preponderance of the evidence. Here, the district court remained bound by the applicable statutory maximum of 120 months. The enhancement did not increase the prescribed range of penalties beyond that maximum. U.S. v. Leahy, 668 F.3d 18 (1st Cir. 2012).
1st Circuit approves “in connection with” enhancement for gun found in close proximity to drug stash. (330) Defendant was convicted of being a felon in possession of a firearm. The First Circuit upheld a four-level enhancement for possessing a firearm in connection with another felony offense. § 2K2.1(b)(6). Although defendant was acquitted of drug trafficking charges, there was sufficient evidence that defendant was engaged in felonious drug trafficking. Defendant was arrested after undercover officers purchased drugs through a third party and a subsequent confrontation at defendant’s home. The police found other drugs in a container near the $20 bills that had just been used in the drug transaction. Defendant had no verifiable income or assets, and routinely paid his expenses in cash. Defendant also had a prior felony conviction for distributing crack. The evidence also supported the court’s finding that defendant possessed the firearm “in connection with” the drug trafficking felony. It was true that the gun was not loaded, and was locked inside a safe in a room separate from the drugs. However, the mere presence of a firearm during a drug transaction has the potential of facilitating that felony offense. See § 2K2.1, note 14(B). U.S. v. Paneto, 661 F.3d 709 (1st Cir. 2011).
1st Circuit holds that escape from official custody under Maine law was crime of violence. (330) Defendant was convicted of being a felon in possession of a firearm, and received an enhanced sentence under § 2K2.1(a)(2) based on the district court’s finding that his prior Maine escape conviction was a crime of violence. The First Circuit affirmed, agreeing that the escape offense was a crime of violence. Current precedent is that escape from “secure custody” qualifies as a crime of violence. Escape from “official custody” in a Maine house of correction, in violation of § 755(1)(A) is escape from “secure custody.” U.S. v. Small, 640 F.3d 425 (1st Cir. 2011).
1st Circuit bars enhancement that was added to guidelines after offense. (330) Defendant pled guilty to firearms charges, and received a four-level trafficking enhancement under § 2K2.1(b) (6), a provision added to the guidelines after defendant’s crime spree. This increased his guideline range from 70-87 months to 108-135 months, and the judge imposed a 108-month sentence, the very bottom of what he believed was the correct range. Without actually deciding whether the ex post facto clause applied to the application of the advisory guidelines, the First Circuit ruled that the district court plainly erred in applying the guidelines in effect at the time of sentencing. Courts should use the guidelines in effect at sentencing only where they are as lenient as those in effect at the time of the offense, thus avoiding “any hint of an ex post facto increase in penalty.” Although, post-Booker, the court had the authority to impose the 108-month sentence, the court used the wrong starting point for determining defendant’s sentence. U.S. v. Rodriguez, 630 F.3d 39 (1st Cir. 2010).
1st Circuit upholds life sentence for arson that resulted in two deaths. (330) At 3:00 a.m. in the morning, defendant intentionally set fire to an apartment building that contained five units and housed 15 people. During the fire, a mother and her infant daughter died. Defendant was convicted of arson of a building used in interstate commerce, in violation of 18 U.S.C. § 844(i). At sentencing, the district court found that defendant was a career offender. The district court imposed a life sentence. The First Circuit held that defendant’s sentence was not substantively unreasonable. U.S. v. Guzman, 603 F.3d 99 (1st Cir. 2010).
1st Circuit upholds use of first-degree murder guideline when arson resulted in death. (330) Defendant was convicted of arson of a building used in interstate commerce, in violation of 18 U.S.C. § 844(i). The arson resulted in the death of a woman and her infant daughter. The guideline for arson, § 2K1.4, states that if death resulted from the arson, the court should apply the most analogous guideline. Relying on that provision, the court applied the guideline for first-degree murder, § 2A1.1. On appeal, defendant argued that the district court erred in using the premeditated murder guideline because he did not intend to kill the victims. The First Circuit upheld the district court’s decision to use the first-degree murder guideline, noting that § 2A1.1 states that it applies to deaths caused by arson. U.S. v. Guzman, 603 F.3d 99 (1st Cir. 2010).
1st Circuit says § 2K2.1’s definition of “felony conviction” did not incorporate ACCA definition. (330) Defendant pled guilty to firearms charges, and received an enhancement under § 2K2.1(a)(1) for having two prior felony convictions for either controlled substance offenses or crimes of violence. Note 1 to § 2K2.1 defines a “felony conviction” as a conviction for an offense punishable by “imprisonment for a term exceeding one year, regardless of whether such offense is specifically designated as a felony and regardless of the actual sentence imposed.” Defendant argued that this definition incorporated the definitions in the Armed Career Criminal Act, 18 U.S.C. § 921(a)(20)(B). The ACCA definition excludes state convictions that the state classifies as misdemeanors if they are punishable by less than two years’ imprisonment. Defendant’s 2006 drug conviction was a misdemeanor with a maximum two-year sentence under Massachusetts law. Thus, under defendant’s interpretation, this conviction would not count as a felony conviction. The First Circuit rejected defendant’s interpretation. The plain language, context, and history of this guideline demonstrated that the Sentencing Commission did not intend to adopt the ACCA definition. U.S. v. Damon, 595 F.3d 395 (1st Cir. 2010).
1st Circuit holds that illegal purchase of three firearms was part of joint scheme. (330) Defendant, a felon, and two associates who were also felons, arranged for a woman to buy three firearms for them from a pawnshop. Defendant pled guilty to being a felon in possession of a firearm, and received an increase under § 2K2.1(b) (1)(a) because his offense involved three to seven firearms. Defendant argued that the other two men made separate agreements with the women, and he should not be held accountable for the additional firearms. The First Circuit upheld the increase. Defendant was engaged in a joint criminal undertaking with the two associates and the woman to unlawfully obtain all three guns, and the effort to obtain all three guns was relevant conduct. The three men were captured on video arriving at the pawnshop with the woman. They talked with each other and considered guns together as the woman stood beside them. Defendant and one of the men had considered these same guns together the previous month but had been unable to buy the guns themselves. The woman purchased guns for all three men at the same time, and they all left the store together. U.S. v. Damon, 595 F.3d 395 (1st Cir. 2010).
1st Circuit agrees that defendant knew drugs found in SUV were intended for distribution. (330) Defendant was arrested sitting in the front passenger seat of an SUV with a firearm in his front pocket. In the SUV, officers found two bags containing of crack cocaine. Defendant pled guilty to being a felon in possession of a firearm, and received a § 2K2.1(b)(6) enhancement for possessing the firearm “in connection with” a felony drug offense. Defendant argued that the there was insufficient evidence to support an inference that he knew about the drugs, or that the drugs were intended for anything but personal consumption. The First Circuit found no clear error. The large amount of cash found on the driver ($1,715), and the lesser but still substantial amounts found on defendant and the other occupant of the SUV ($272 and $100) supported the inference that the car’s occupants were engaged in the sale, rather than casual use, of drugs. Defendant’s history of drug distribution also believed his claim that he was ignorant of the drugs and their intended distribution. Moreover, just three months after his arrest in this case, defendant was again arrested and later convicted of possession with intent to distribute crack cocaine. U.S. v. Cannon, 589 F.3d 514 (1st Cir. 2009).
1st Circuit holds that “except” clause did not apply to defendant subject to mandatory minimum drug sentence. (330) Defendant pled guilty to drug and firearms charges. The firearm statute, § 924(c)(1)(A), provides, in relevant part, for a mandatory minimum sentence “[e]xcept to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law ….” Defendant argued that it was plain error for the district court to impose the mandatory minimum sentence for the firearm count because he was also subject to a mandatory ten-year sentence under 21 U.S.C. § 841(b)(1)(A) for an offense involving more than five kilograms of cocaine. However, in U.S. v. Parker, 549 F.3d 5 (1st Cir. 2008), the First Circuit held that the “except clause” did not apply when the defendant was subject to a mandatory 10-year term of imprisonment based on the amount of drugs recovered. The First Circuit noted that Parker was on point, and thus there was no error in the court’s application of the mandatory minimum. U.S. v. Pulido, 566 F.3d 52 (1st Cir. 2009).
1st Circuit says assault and battery with a dangerous weapon was crime of violence. (330) Defendant received an enhanced offense level under § 2K2.1(a)(2) based on the court’s finding that his prior conviction for assault and battery with a dangerous weapon (ABDW) was a crime of violence. The First Circuit affirmed. The offense “involved conduct that presents a serious potential risk of physical injury to another,” under the residential clause of § 4B1.2(a)(2). The crime also met the additional requirements set forth in the Supreme Court’s recent decision of Begay v. U.S., 553 U.S. 137, 128 S.Ct. 1581 (2008). Begay says that to qualify as a violent felony under the residual clause, the offense must (1) pose a degree of risk that is similar to the degree of risk posed by the enumerated offenses of arson, burglary, extortion and offenses involving the use of explosives, and (2) be similar “in kind” to those offenses, i.e., involve purposeful, violent, and aggressive conduct. Because a defendant must use a dangerous weapon to be convicted of ABDW, the offense poses a risk of injury comparable to the enumerated offenses. ABDW also is a purposeful offense that involves aggressive and violent conduct. U.S. v. Glover, 558 F.3d 71 (1st Cir. 2009).
1st Circuit rules minimum for second § 924(c) gun offense is enhancement, not element of the offense. (330) Defendants were convicted on three counts stemming from the armed robbery of a lottery ticket business. Both were sentenced to terms that included a mandatory minimum term of 25 years for the use of a firearm in relation to a violent federal felony after a previous conviction for the same offense. See 18 U.S.C. § 924(c)(1) (C)(i). The First Circuit held that the 25-year mandatory minimum sentence for a second or subsequent firearm conviction is a sentencing enhancement, not an element of the § 924(c) violation and thus did not need to be found by the jury beyond a reasonable doubt. The district court had before it defendants’ generalized stipulation that they had previously been convicted of a felony punishable by more than one year. The PSRs also specifically noted that defendants had previously pled guilty to using a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 841(C)(1). U.S. v. Rivera-Rivera, 555 F.3d 277 (1st Cir. 2009).
1st Circuit relies on defendant’s statement of intent to find he knew gun recipients had illegal purpose for guns. (330) Defendant pled guilty to stealing guns from a firearms dealer. The First Circuit upheld a four-level enhancement under §2K2.1(b)(5) for transferring the firearm to another individual, knowing that such conduct would result in the transfer of the firearm to an individual whose possession or receipt of the firearm was unlawful, or who intended to use the firearm unlawfully. Defendant admitted giving four of the stolen guns to an individual he would not identify. Although there was no direct evidence that defendant knew of the recipients’ intent, the court focused on defendant’s numerous, uncontested pre-robbery statements evincing an intent to steal the firearms, bring them to Vermont, remove the serial numbers and to exchange the guns for money to buy drugs. Defendant’s known actions all precisely tracked his stated intent, and the court found that defendant probably obliterated the serial numbers from the guns that he transferred to the individuals he would not name. A serial number is obliterated from a gun so that it cannot be traced by law enforcement, in anticipation that the gun will be used in criminal activity. U.S. v. Marceau, 554 F.3d 24 (1st Cir. 2009).
1st Circuit rules that drug user was “prohibited person.” (330) Defendant pled guilty to stealing guns from a firearms dealer. The district court applied an enhanced offense level under §2K2.1(a)(4)(B) because the theft involved a semi-automatic firearm and defendant was a “prohibited person” at the time of the crime by virtue of his ongoing drug use. The First Circuit rejected defendant’s argument that he was not a “prohibited person” under §2K2.1(a)(4)(B)(ii)(I). The definition of a prohibited person includes a person “who is an unlawful user of … any controlled substance.” See Note 3 to §2K2.1 and 18 U.S.C. §922(g)(3). There was ample evidence that defendant was a “prohibited person.” The PSR noted that even after defendant’s stay at a drug treatment facility, he was unable to remain drug-free, and the robbery was the first step in a plan to sell the stolen firearms to get money for drugs. An FBI agent testified that an accomplice told him that defendant had smoked marijuana daily in the days before the robbery, stopping only when he exhausted his supply. U.S. v. Marceau, 554 F.3d 24 (1st Cir. 2009).
1st Circuit says Commission did not exceed its authority in retaining semi-automatic weapon enhancement. (330) Defendant pled guilty to stealing guns from a firearms dealer. He argued that the 8-level increase under §2K2.1(a)(4)(B) for his possession, as a “prohibited person,” of a semi-automatic weapon should not have been applied because Congress allowed the statutory proscription against possessing such weapons to expire in 2004. He contended that the Sentencing Commission exceeded its authority in April 2006 when it voted to retain the enhancement. The First Circuit disagreed. The enhanced offense level was not at odds with any statute because it does not penalize the mere possession of legal firearms, but only possession by certain prohibited persons. There was no conflict between the lapse of the statutory assault-weapon ban and the imposition of a higher offense level for use of such a weapon by anyone in a class of prohibited persons. U.S. v. Marceau, 554 F.3d 24 (1st Cir. 2009).
1st Circuit holds that mandatory consecutive firearm sentence was applicable to defendant also subject to mandatory minimum drug sentences. (330) Defendant was sentenced to 135 months for each of two drug counts (each carried a mandatory minimum term of 10 years), and a 60-month consecutive term on a gun count. See 18 U.S.C. §924(c)(1)(A). The relevant part of §924(c) provided for a five-year mandatory consecutive term “[e]xcept to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law.” Defendant argued that the “except clause” made the five-year consecutive sentence inapplicable to him because he was subject to “a greater minimum sentence” based on the drug convictions. The First Circuit rejected this interpretation of the “except clause.” The except clause does not say “a greater minimum sentence” for what, but the most sensible reference is to an additional minimum sentence for an underlying offense because of the presence of the firearm. Thus, if a “greater minimum sentence is otherwise provided” on account of the firearm, then under the “except clause” that greater minimum might supercede the otherwise applicable §924(c) adjustment. U.S. v. Parker, 549 F.3d 5 (1st Cir. 2008).
1st Circuit holds homicide by negligent operation of motor vehicle is not crime of violence. (330) The district court applied an enhanced offense level based on its finding that defendant’s prior Wisconsin conviction for motor vehicle homicide was a crime of violence under §4B1.2(a). The First Circuit found that under the Supreme Court’s recent decision in Begay v. U.S., 553 U.S. 137, 128 S.Ct. 1581 (2008), the offense did not qualify as a crime of violence. Under Begay, the crime at issue must be “roughly similar” in kind, as well as in degree of risk posed, to the crimes listed in the “otherwise” clause (burglary, arson, extortion or crimes involving use of explosives). Begay found that DUI was not a violent felony because it was too unlike the listed examples, even though it was roughly similar in degree of risk. Here, although vehicular homicide met the necessary degree of risk to be a crime of violence, it was not similar in kind to the enumerated offenses. Although it was violent, it was not necessarily aggressive or purposeful. Vehicular homicide involving criminal negligence does not involve the requisite purposeful, intentional or deliberate conduct to be a crime of violence. U.S. v. Herrick, 545 F.3d 53 (1st Cir. 2008).
1st Circuit finds charging document supported violent felony finding. (330) Defendant pled guilty to being a felon in possession of ammunition. Defendant had three prior Massachusetts convictions for assault and battery. The government argued that the offenses were violent felonies, and defendant should be sentenced under the Armed Career Criminal Act, 18 U.S.C. § 924(e), because each conviction was based on a charging document that alleged that defendant “assault and beat” the victim. Defendant claimed that this language was boilerplate that said nothing about the nature of the underlying crime (the Massachusetts statute included both harmful and non-harmful conduct). The district court accepted this position and refused to sentence defendant under the ACCA. The First Circuit reversed, finding defendant’s position foreclosed by precedent holding that a Massachusetts charging document that states the defendant “assault[ed] and beat” the victim is sufficient to establish that the conviction was for a violent battery and therefore a “crime of violence” under the guidelines. See, e.g., U.S. v. Estevez, 419 F.3d 77 (1st Cir. 2005). The definitions of “violent felony” in the ACCA and “crime of violence” in U.S.S.G. § 4B1.1 are essentially the same, and therefore the court may look to cases dealing with either of them. U.S. v. Holloway, 499 F.3d 114 (1st Cir. 2007).
1st Circuit holds that destructive device enhancement was not improper double counting. (330) Defendant pled guilty to firearms charges in connection with his possession of a sawed-off shotgun. He argued that a § 2K2.1(b) (3) enhancement for possession of a “destructive device” constituted double counting, since both the enhancement and the offense level, under § 2K2.1(a)(4)(B), were based on his possession of a sawed-off shotgun. The First Circuit found no double counting problem. Note 11 to § 2K2.1 expressly states: “a defendant whose offense involves a destructive device receives both the base offense level from the subsection applicable to a firearm listed in 26 U.S.C. § 5845(a) …. and a two level enhancement under subsection (b)(3).” The sawed-off shotgun qualified as a destructive device. Section 5845(f) specifically defines a destructive device as a device with a barrel in excess of one-half inch and which expels projectiles, which was an accurate description of the sawed-off shotgun defendant possessed. The only shotguns excluded from this definition are those that the Secretary of the Treasury has found suitable for sporting purposes. A sawed-off shotgun is not suitable for sporting purposes. U.S. v. McCarty, 475 F.3d 39 (1st Cir. 2007).
1st Circuit holds that gun possession was unlawful where defendant was fugitive and used marijuana. (330) Defendant and his brother robbed a gun dealership at gunpoint. The PSR recommended a three-level enhancement under § 2K2.1(b)(1)(C) because the offense involved a total of eight guns: the six guns stolen and the two guns that the robbers brandished during the robbery. Defendant argued that there was insufficient proof that the firearm used in the robbery was “unlawfully possessed” for purposes of § 2K2.1(b)(1)(C). Under the application notes, only those firearms that were unlawfully sought to be obtained, unlawfully possessed, or unlawfully distributed are counted. The First Circuit affirmed the increase. Defendant was prohibited from possessing a firearm under 18 U.S.C. § 922(g)(1) (prohibiting fugitive from justice from possessing a firearm) and § 922(g)(3) (prohibiting an unlawful user or addict of any controlled substance from possessing a firearm). Defendant was a fugitive from justice and, according to the PSR, he admitted to regularly using marijuana. U.S. v. Wallace, 461 F.3d 15 (1st Cir. 2006).
1st Circuit holds that departure based on use of weapon did not constitute improper double counting. (330) Defendant and his brother robbed a gun dealership at gunpoint. Section 5K2.6 authorizes an upward departure if a weapon or dangerous instrumentality was used or possession in the commission of the offense. The district court departed in part under § 5K2.6, noting that the case involved a “high-powered weapon,” and “a pre-banned semi-automatic or machine gun-like weapon [was] pointed directly into the face of the victims.” Defendant argued that this amounted to double counting, because the dangerous nature of the TEC-9 firearm he used in the robbery was already taken into account in the calculation of his offense level under § 2K2.1(a)(4)(B). The First Circuit found no double counting problem, and found this was a valid ground for departure. Defendant pointed a semi-automatic weapon directly into the face of one employee at a close range while his brother pointed his weapon at the other employee. This action presented a danger not accounted for by defendant’s possession of the TEC-9 alone. Thus, the harm underlying the calculation of the base offense level under 2K2.1 and the harm underlying the application of the upward departure under § 5K2.6 were different. U.S. v. Wallace, 461 F.3d 15 (1st Cir. 2006).
1st Circuit relies on hearsay to find defendant pointed gun at girlfriend during argument. (330) Defendant was convicted of being a felon in possession of a firearm. A police officer testified that a 14-year old witness pulled him over to report to him that defendant had pulled out the gun and pointed it at the girlfriend during an argument near a public bus stop. The officer searched defendant and found a gun in his possession. The First Circuit upheld a § 2K2.1(b) (5) increase for using the gun in connection with another felony, i.e. an assault against his girlfriend. The 14-year-old’s statement had the authenticity and reliability of an excited utterance. The fact that the officer was able to quickly locate defendant near the bus stop, identify him by the orange clothing the boy described, and recover a gun from defendant, corroborated the statement. In addition, the girlfriend confirmed that she and defendant had been fighting just before the incident, and admitted she had seen defendant with a gun in the past. Although she denied defendant pointed a gun at her, the district court noted that in addition to being a biased witness, the girlfriend likely would not have seen a gun pointed at the back of her own head. U.S. v. Luciano, 414 F.3d 174 (1st Cir. 2005).
1st Circuit uses state-court “continuance” to enhance offense level and criminal history. (330) Defendant challenged the inclusion of his state-court “continuance” to increase his offense level and his criminal history, but the First Circuit found no error. First, the sentence was properly included in his criminal history. A sentence counts as a “prior sentence” as long as the sentence was imposed within five years of the commission of the current offense. It did not matter that the state-court disposition was diversionary in nature. Under § 4A1.2(f), a diversionary disposition resulting from an admission of guilt in a judicial proceeding is counted as a sentence under § 4A1.1(c) even if a conviction is not formally entered. Second, the disposition was a prior felony conviction under § 2K2.1 (a)(4)(a) because it was countable for purposes of calculating defendant’s criminal history. See Note 15 to § 2K2.1. Finally, the court properly gave defendant two points under § 4A1.1(d) for committing the offense while under a criminal justice sentence. The sentence had a “custodial or supervisory component” and therefore counted as a criminal justice sentence. If defendant violated certain conditions, the state court could revoke the continuance and enter a plea of guilty. U.S. v. Fraser, 388 F.3d 371 (1st Cir. 2004).
1st Circuit upholds consideration of sale of guns to drug kingpins in sentencing within guideline range of less than 24 months. (330) Defendant, a police officer, used his position to improperly seize weapons and resell them. Despite defendant’s request for a sentence at the bottom of his 70-87 month range, the district court sentenced him to 80 months, citing a number of factors, including his role as a police officer, the fact that the informant told him the guns were intended for use by drug kingpins, the fact that the guns sold had an obliterated serial number, and defendant’s propensity for violent behavior. Defendant argued that the court erred in basing its sentencing determination on a material misstatement of fact – that the weapons were intended for use by drug kingpins. The First Circuit found no error since a district court is not required to cite any reason for sentencing a defendant within a properly constructed guideline range that spans no more than 24 months. Defendant’s guideline range spanned only 17 months. Moreover, the finding was not clearly erroneous, but based on reasonable inferences from the record. In addition, the finding was probably not material, given the court’s other findings in support of its sentence. U.S. v. Mansur-Ramos, 348 F.3d 29 (1st Cir. 2003).
1st Circuit applies “another felony” increase where defendant sold grenades to known gang member. (330) Defendants were apprehended after attempting to sell live hand grenades to a government informant who they knew was a member of a street gang. Prior to the sale, the informant invented a fictitious third-party buyer for whom he was supposedly purchasing the weapons. The informant portrayed the buyer as a hostile individual with substantial knowledge of hand grenades, ostensibly to convince defendants that the buyer would react negatively if they attempted to sell him fake grenades. The district court applied a § 2K2.1(b)(5) increase, finding that defendants had “knowledge, intent, or reason to believe” that the hand grenades sold to the informant would “be used or possessed in connection with another felony offense.” The First Circuit affirmed, refusing to fault the district court “for its common sense conclusion that individuals who transfer “offensive” and “dangerous” M-67 hand grenades to a known gang member have reason to believe that the weapons will be used in a subsequent felony. The panel rejected one defendant’s claim that he in good faith thought some sort of out-of-state collector was going to get the grenades. The informant did not portray his fictitious buyer as a benign hobbyist with an academic interest in military artifacts, but as a “nut” who manufactured pipe bombs and was “ready to blow [stuff] up.” U.S. v. Molloy, 324 F.3d 35 (1st Cir. 2003).
1st Circuit holds that defendant did not prove rifle was possessed solely for lawful sporting purposes. (330) While searching defendant’s house, police found seven pounds of marijuana and, leaning in a corner of the master bedroom, a loaded rifle. Defendant argued that he was entitled to a reduction under § 2K2.1(b)(2) because he had used the rifle solely for lawful sporting purposes. He claimed to have purchased the rifle in 1992 or 1993, and to have used it for hunting and target shooting until 1996, when he accidentally broke the stock of the rifle. His wife testified that she had loaded the rifle one evening when defendant was away on business and she had been frightened by noises in the woods. She also claimed that she was not aware that there was marijuana in the house. The prosecutor pointed out that defendant did not move into his house until 1997, suggesting that he carried the rifle with him from his old residence, and chose to store it fully assembled in the corner of the bedroom, even though it was broken. The district court found that defendant had failed to prove that he had possessed the gun solely for lawful sporting purposes, noting that the gun was loaded, and rejecting the wife’s testimony as incredible. The First Circuit agreed. The circumstances in which the rifle was discovered created a powerful inference that defendant used it in support of his drug trade. Defendant’s evidence to the contrary was insufficient to overcome that inference. U.S. v. Denis, 297 F.3d 25 (1st Cir. 2002).
1st Circuit says counsel was not ineffective in dropping claim in exchange for plea agreement concessions. (330) Under Massachusetts’s former two-tier trial system, defendant waived his right to a jury trial and elected a bench trial. After the judge found him guilty, defendant then appealed, seeking a trial de novo before a jury of six. Under Massachusetts law, this appeal vacated the initial conviction. Defendant was convicted again by a jury. After his initial conviction and appeal, but before his second conviction, he committed the current federal firearms offense. Section 2K2.1(a) (4)(A) mandates an increased offense level of 20 if “the defendant had one prior felony conviction for either a crime of violence or a controlled substance offense.” At the time of defendant’s sentencing, the circuits were split two to one in favor of counting defendant’s Massachusetts’ conviction as a prior conviction. Notwithstanding its disagreement with the majority view, and a 2001 amendment adopting the minority view, the First Circuit held that counsel did not perform deficiently in abandoning the claim that defendant’s state conviction could not be used to increase his offense level. At the time of sentencing, the law on the issue was unclear, and defendant’s plea agreement included a commitment to accept the increase in offense level in exchange for other concessions. The decision to stick with the enhanced offense level “was almost certainly a judgment call to retain the advantages of the plea and to forgo an argument for a lower [offense level] already rejected by two out of three circuits.” Cofske v. U.S., 290 F.3d 437 (1st Cir. 2002).
1st Circuit holds that brandishing small gun near crowd was insufficient for departure. (330) Defendant was convicted of being a felon in possession of a firearm after he waved a gun while attempting to break up an altercation outside a restaurant. Note 16 to § 2K2.1 authorizes an upward departure in four alternative circumstances: (1) the number of firearms significantly exceeded 50; (2) the offense involved multiple military assault type weapons or similarly destructive guns and other devices; (3) the offense involved large quantities of armor-piercing ammunition, or (4) “the offense posed a substantial risk of death or bodily injury to multiple individuals.” The district court departed upward under the fourth clause of Note 16, noting that defendant “had a firearm cocked and pointed, thus posing a substantial risk of death or bodily injury to a multitude of individuals who were out in front of that restaurant that night.” The First Circuit held that the court’s use of Note 16 was in error, finding that clause four, when read in context with the three provisions that precede it, is reasonably interpreted to authorize departure for conduct that is dangerous to an extraordinary degree. The threat to multiple individuals for death or bodily injury must be more obvious and potent that the present record revealed. Brandishing a single small weapon in a single episode, with no evidence of an intent to fire, was insufficient to support a departure aimed at punishing conduct that puts multiple individuals at substantial risk of injury or death. U.S. v. Diaz, 285 F.3d 92 (1st Cir. 2002).
1st Circuit holds that enhanced firearm sentence violated Apprendi. (330) Section 924(c)(1)(A) carries a statutory minimum of five years’ imprisonment for carrying or using a firearm during a drug conspiracy. Section 924(c) (1)(B) carries an enhanced sentence of ten years’ imprisonment for the use or possession of a semiautomatic weapon during a crime of violence. The district court found by a preponderance of the evidence that defendant violated § 924(c)(1)(B), and imposed an enhanced sentence of ten years’ imprisonment. Because the jury did not determine beyond a reasonable doubt that defendant was accountable for the semiautomatic weapons carried by his co-conspirators, as required by Apprendi v. New Jersey, 530 U.S. 466 (2000), the First Circuit remanded for the court to impose a sentence under § 924(c)(1)(A). However, Apprendi did not apply to defendant’s 151-month drug sentence. The Apprendi doctrine does not apply to defendants who are sentenced to a term less than the otherwise applicable statutory maximum. Finally, the court rejected defendant’s claim that Apprendi rendered § 841(b) unconstitutional on its face. The statute is silent as to who makes the drug quantity findings and under what burden of persuasion. U.S. v. Collazo-Aponte, 281 F.3d 320 (1st Cir. 2002).
1st Circuit holds that Amendment 599 does not apply to career offender. (330) Defendant was sentenced as a career offender based on two prior armed robbery convictions. He later moved to modify his sentence based on Amendment 599 to the sentencing guidelines. The amendment, which applies to § 924(c) defendants sentenced under § 2K2.4, provides that a defendant’s possession of a weapon cannot be used to enhance the offense level of the underlying offense. The First Circuit held that Amendment 599 did not apply to defendant, because he was sentenced as a career offender. Defendant’s sentence was imposed not on the basis of the underlying offense, i.e. armed robbery, but on the basis of his career offender status. The district court, however, reasoned that although the career offender guideline technically involved neither an underlying offense, nor a specific offense characteristic, the disparity created by defendant’s sentencing under both the career offender guidelines for armed robbery and § 924(c) captured the essence of the amendment. The court reduced defendant career offender offense level to 32, the level applicable to unarmed bank robbery, instead of level 34, the level for armed bank robbery. This interpretation was erroneous. Defendant was sentenced as a career offender; the specific offense characteristics of his underlying offense therefore were immaterial. Under the career offender scheme, the sentencing court only considers the underlying offense’s statutory maximum. Because defendant did not receive an enhancement of his underlying offense when he was sentenced, Amendment 599 was inapplicable. U.S. v. Hickey, 280 F.3d 65 (1st Cir. 2002).
1st Circuit finds short-barreled shotgun has barrel less than 18 inches or overall length of less than 26 inches. (330) Section 924(c)(1)(B)(i) mandates a ten-year sentence for using or carrying a short-barreled shotgun during a crime of violence. The statute defines a “short-barreled shotgun” as “a shotgun having one or more barrels less than [18] inches in length and any weapon made from a shotgun … if such a weapon as modified has an overall length of less than [26] inches.” § 921(a)(6). The weapon defendant used during his robbery was a sawed-off shotgun with a barrel measuring 12 1/4 inches long and having an overall length of 27 1/4 inches. Defendant argued that the two measurement requirements in § 921(a)(6) should be read conjunctively due to the use of the word “and” rather than “or.” Under this theory, a weapon must have a barrel length of less than 18 inches and an overall length of less than 26 inches to be a short-barreled shotgun. The First Circuit disagreed, finding the statute includes within its definition two categories of weapons: a shotgun with a barrel of less than 18 inches in length, and any weapon made from a shotgun that has an overall length of less than 26 inches. Because defendant’s shotgun satisfied the first requirement, it was covered by the statute. U.S. v. Michaud, 243 F.3d 84 (1st Cir. 2001).
1st Circuit applies “in connection with” increase where guns were stored near marijuana. (330) The district court enhanced defendant’s sentence for the use of a firearm “in connection with” his drug offenses, pursuant to § 2K2.1(b)(5). The government established at trial that defendant kept two guns in the same apartment where he stored marijuana. It was also established that a third gun was stored near additional marijuana at defendant’s girlfriend’s house. All of the guns were readily accessible. The district court concluded that it was defendant’s “modus operandi to have guns near his stash of marijuana.” Given that defendant had firearms in close proximity to his drugs in two different locations, the First Circuit ruled that this factual finding was not clear error. Moreover, this finding sufficiently supported the legal conclusion that the firearm possession was “in connection with” the underlying drug offense. U.S. v. Peterson, 233 F.3d 101 (1st Cir. 2000).
1st Circuit finds no prejudice from failure to list firearm in indictment and submit issue to jury. (330) Defendants were convicted, in part, of using and carrying a firearm in a crime of violence, in violation of 18 U.S.C. § 924(c)(1). They were sentenced under § 924(c)(1)(B) to a mandatory 10-years’ imprisonment for use of a semi-automatic assault weapon. Use of an ordinary firearm results in a sentence of not less than five years’ imprisonment. See § 924(c)(1)(A). After sentencing, the Supreme Court held, in U.S. v. Castillo, 530 U.S. 120 (2000), that the distinctions in § 924(c)(1) between types of firearms are elements of separate crimes and not just sentencing factors. Thus, the use of the semi-automatic weapon should have been alleged in the indictment, and the question submitted to the jury. The First Circuit held that failure to comply with Castillo was harmless error. The failure to submit the firearm question to the jury was in error, and was plain, but defendants could not show prejudice. The evidence was more than sufficient for a jury to have found beyond a reasonable doubt that defendants used an assault weapon in the robbery. The fact that the indictment did not specifically charge them with using a semi-automatic weapon was not a structural error that per se required reversal. Rather, under Neder v. United States, 527 U.S. 1 (1999), the indictment error was also subject to plain error review. Again, defendants could not show prejudice. There was no question that the petit jury in this case would have found that defendants used at least one AK-47. U.S. v. Mojica-Baez, 229 F.3d 292 (1st Cir. 2000).
1st Circuit rejects multiple sentences for drug-using, former felon in possession of firearm. (330) Defendant was convicted under separate counts of being a felon-in-possession and a drug user-in-possession with respect to the same firearms, 18 U.S.C. § 922(g)(1) and (3). He was sentenced concurrently to life imprisonment on the former and 120 months on the latter. Several circuits have held that Congress did not intend to inflict multiple punishments where a drug-using, former felon possessed a firearm. See, e.g. U.S. v. Munoz-Romo, 989 F.2d 757 (5th Cir. 1993). The government conceded this point and said that the shorter sentence should be vacated, along with the statutory $150 assessment. The First Circuit agreed. Since the sentences were concurrent, the only practical effect of following the government’s recommendation was to remit the special assessment. U.S. v. Shea, 211 F.3d 658 (1st Cir. 2000).
1st Circuit holds stolen firearm enhancement not double counting. (330) Defendant pled guilty to possessing a stolen firearm. The district court applied a two-level enhancement under § 2K2.1(b)(4) because the firearm was stolen. The First Circuit ruled that because defendant’s offense level was calculated under subsection (a)(2), the subsection (b)(4) enhancement did not constitute double counting. Section 2K2.1 encompasses a broad range of firearms offenses, and applies even where the firearms involved are not stolen. Note 12 to § 2K2.1 says that if a defendant’s offense level is determined under subsection (a)(7), then the (b)(4) enhancement may not be applied because the base offense level already takes into consideration the stolen nature of the firearm. Defendant’s base offense level was calculated under subsection (a)(2) because he had at least two prior felony convictions that were either violent crimes or drug crimes. Subsection (a)(2) applies to all crimes to which § 2K2.1 applies, regardless of whether the gun was stolen. Therefore, the stolen nature of the firearm was not considered in calculating defendant’s base offense level. U.S. v. Brown, 169 F.3d 89 (1st Cir. 1999).
1st Circuit agrees defendant knew weapons he sold would be used in connection with another felony. (330) The First Circuit ruled that the district court sufficiently identified the reasons for a § 2K2.1(b)(5) enhancement. The district court stated that defendant “certainly had reason to believe once he was transferring weapons in the middle of the night surreptitiously that those weapons were going to be used in yet another felony.” There was a sufficient factual basis for the increase, given the inferences reasonably drawn from the circumstances of the surreptitious transfer of the guns for drugs and money. U.S. v. Cofske, 157 F.3d 1 (1st Cir. 1998).
1st Circuit holds second-degree child molestation was a crime of violence. (330) Defendant pled guilty to being a felon in possession of a firearm. Section 2K2.1(a)(3) provides for an increased offense level if the prior felony was for a crime of violence. Here, the prior conviction was for second-degree child molestation under a Rhode Island statute prohibiting “sexual contact” with a person under 13 years old. The First Circuit held that this was a crime of violence because it posed “a serious potential risk of physical injury.” Sexual contact with a person under 13 years old can encompass both violent and non-violent conduct. Thus, the court could examine the information and jury instructions to determine defendant’s actual conduct. Nevertheless, because the information simply reiterated the elements of the statute, and there was no jury trial, the inquiry was limited to the statutory formulation of the crime. The court examined the “typical run of conduct” for this sort of offense. Child molestation typically occurs in close quarters and is generally perpetrated by an adult upon a victim who is smaller, weaker, less experienced, and generally susceptible to the coercive power of adult authority figures. There is a significant likelihood that physical force may be used to perpetrate this crime. U.S. v. Sherwood, 156 F.3d 219 (1st Cir. 1998).
1st Circuit applies enhancement for knowing pipe bombs would be used in another felony. (330) A cooperating drug dealer approached defendant and told him that he needed some pipe bombs to blow up a rival gang. Defendant then constructed the bombs with materials supplied by the government and the dealer purchased them. After his arrest, defendant claimed he “didn’t mean to hurt anyone,” but that the pipe bombs were intended “for the gangs” because he “didn’t like the gangs and wanted to hurt gangs.” The First Circuit upheld a § 2K2.1(b)(5) enhancement for possessing the bombs “with knowledge, intent or reason to believe” that they would be “used or possessed” in connection with another felony. The dealer testified that he told defendant he wanted the pipe bombs for use against a rival gang. This testimony was substantiated by defendant’s post-arrest admission that he “wanted to hurt gangs.” The fact that defendant delivered the bombs as part of a police-controlled undercover operation was legally irrelevant. U.S. v. Nunez, 146 F.3d 36 (1st Cir. 1998).
1st Circuit holds generic burglary of non-dwelling is a crime of violence. (330) Defendant was convicted of being a felon in possession of a firearm. The district court applied an increased offense level under § 2K2.1(b) (4)(A) based on its finding that his previous state burglary conviction was a crime of violence. The Maine statute under which he was convicted did not contain an element on the use of force, and the burglary was charged as a Class C, non-dwelling crime. The First Circuit held that defendant’s burglary was a crime of violence under U.S. v. Fiore, 983 F.3d 1 (1st Cir. 1992). Fiore held that a conviction for breaking and entering a commercial structure is a crime of violence. Under Fiore, when a generic burglary takes place it is irrelevant that the structure invaded is not a dwelling. U.S. v. Sawyer, 144 F.3d 191 (1st Cir. 1998).
1st Circuit applies higher arson offense level where people lived in building defendant burned. (330) Defendant was convicted by a jury for twice orchestrating the arson of a building that he owned. The building contained vacant retail space on the first floor and two occupied residential apartments on the second floor. The first fire caused minimal damage. The second required the demolition of the building and two adjacent buildings. The First Circuit upheld an increased offense level under § 2K1.4(a) for knowingly creating a substantial risk of death or serious bodily injury. He twice attempted to burn a building in which people lived. Thus, the fact that the fires were carried out in an “amateurish” fashion did not mean that his conduct did not involve a knowing creation of a substantial risk of death or serious bodily injury. U.S. v. Awon, 135 F.3d 96 (1st Cir. 1998).
1st Circuit upholds § 2K2.1(b)(5) increase for drug dealer who bought guns to protect drugs. (330) Defendant pled guilty to four counts of being a felon in possession of 11 different firearms. The PSR reported that defendant was a drug dealer who used friends and family members to distribute drugs. He indicated to a co-conspirator that he needed the guns to protect him and his associates in connection with the drug operation. The First Circuit upheld a § 2K2.1(b)(5) enhancement for possessing the firearms with the knowledge that they would be used in connection with another felony. U.S. v. Grant, 114 F.3d 323 (1st Cir. 1997).
1st Circuit upholds reliance on acquitted counts to apply § 2K2.1(b)(5) enhancement. (330) Defendant was arrested based on his suspected involvement in an attempted robbery of an armored vehicle. A Rhode Island federal jury acquitted him of charges relating to the attempted robbery. A Massachusetts federal jury then convicted him of felon in possession charges. At sentencing, the district court applied a § 2K2.1(b)(5) enhancement based on defendant’s possession of the gun in connection with the attempted robbery for which the Rhode Island jury had acquitted him. The First Circuit held that the consideration of the conduct underlying the acquitted robbery counts was permitted by the Supreme Court’s recent decision in U.S. v. Watts, 117 S.Ct. 633 (1997). Dicta to the contrary in U.S. v. Lanoue, 71 F.3d 966 (1st Cir. 1995) has been abrogated by Watts. U.S. v. Meade, 110 F.3d 190 (1st Cir. 1997).
1st Circuit adopts Model Penal Code’s definition of “knowing” creation of risk in arson guideline. (330) Defendant was convicted of various crimes arising from a fire that destroyed his store, located in the basement of a residential duplex. Section 2K1.4(a) provides for the base offense level to be increased from 20 to 24 for the “knowing” creation of a substantial risk of death or serious bodily injury. The district court felt that defendant “may” have had the “foolish, but sincere” belief that everyone could be evacuated or that the apartments above the store would not be destroyed, so it increased only to level 22. The First Circuit remanded, adopting the Model Penal Code’s definition of “knowing” to guide the district court on remand. If the court intended to depart downward, it failed to make specific findings on defendant’s state of mind. To justify the increase, the court must find that defendant was aware that a substantial risk of death or serious bodily injury was “practically certain” to result from his criminal act. Constructive knowledge is not sufficient to trigger the higher base offense level. U.S. v. Ruiz, 105 F.3d 1492 (1st Cir. 1997).
1st Circuit agrees that defendant transferred gun in connection with another felony. (330) Defendant and an associate were involved in an altercation in a parking lot that resulted in the associate shooting a third man. Defendant was convicted of being a felon in possession of a firearm. The district court applied a §2K2.1(b)(5) enhancement, finding that defendant gave the gun to the associate in connection with another felony offense. The First Circuit affirmed, since it was reasonable to infer from the evidence that defendant gave his handgun to the associate intending and expecting the associate to use it against the victim. Defendant and the victim became involved in a dispute at a bar; the two men left the bar together; when defendant reached inside his jacket the victim punched him; defendant was pulled into a car, where he handed a gun to the associate, who proceeded to shoot the victim. U.S. v. Smith, 101 F.3d 202 (1st Cir. 1996).
1st Circuit approves upward departure based on number and type of guns possessed. (330) Defendant was convicted of being a felon in possession of a firearm based on his involvement in a shooting spree at a housing development. The district court departed upward based in part on the number and dangerousness of the weapons used by him and his associates in the shooting spree. The First Circuit affirmed. Although the number of firearms are explicitly considered in § 2K2.2, this does not foreclose a departure based on the number of firearms under § 2K2.1. Section 2K2.1 did not adequately consider the extraordinary dangers posed by gang members indiscriminately shooting and discarding particularly dangerous guns in crowded inner‑city residential areas. The heightened dangerousness caused by the use and indiscriminate abandonment of the guns involved here is an encouraged ground for departure under § 5K2.6. U.S. v. Hardy, 99 F.3d 1242 (1st Cir. 1996).
1st Circuit finds defendant created substantial risk of death or serious bodily injury. (330) Defendant attempted to burn down the top of his restaurant to obtain insurance proceeds to pay for certain renovations to the restaurant. The First Circuit upheld the use of § 2K1.4(a)(1), which applies if the offense created a substantial risk of death or serious bodily injury to any person other than a participant, and the risk was created knowingly. The use of gasoline to start the fire in the occupied building created a substantial risk because there was the potential for a fuel air explosion or for a fire to start accidentally. The risk was knowingly created. At the time of the first attempt, defendant knew that at least two employees were in the restaurant. In the second attempt, gasoline was poured hours before the intended ignition, in a confined area atop the restaurant at a time when both patrons and employees were inside. Defendant was aware that a substantial risk of death or serious bodily injury was “practically certain” to result from the use of a highly flammable accelerant for purposes of starting a fire. U.S. v. DiSanto, 86 F.3d 1238 (1st Cir. 1996).
1st Circuit says § 2K2.1(b)(4) enhancement applies regardless of defendant’s knowledge of serial number obliteration. (330) Defendant, a convicted felon, was convicted of carrying a gun with an obliterated serial number. He challenged a § 2K2.1(b)(4) enhancement, arguing that he did not know the serial number had been obliterated. The First Circuit affirmed, since this enhancement applies whether or not defendant knew or had reason to believe that the firearm had an altered or obliterated serial number. U.S. v. Abernathy, 83 F.3d 17 (1st Cir. 1996).
1st Circuit approves firearm enhancement for offenses separate from § 924(c) offense. (330) Defendant was convicted of conspiracy to commit three different bank robberies and of carrying a firearm in connection with one of those robberies. Defendant argued that the district court unfairly imposed a mandatory five year sentence under 18 U.S.C. § 924(c) while simultaneously enhancing his total offense level for brandishing a gun during two of the robberies. Note 2 to § 2K2.4 provides that where a defendant receives a mandatory consecutive sentence under § 924(c), the court should not also enhance the defendant’s offense level for the underlying crime to account for the use of the firearm. The First Circuit held that the other two robberies were not part of the “underlying offense” and therefore the firearm enhancements were proper for these crimes. Section 1B1.2(d) instructs a court to treat a count charging a conspiracy to commit multiple objects as separate counts of conspiracy for each offense the defendant conspired to commit. Thus, the guidelines do not consider a conspiracy to commit multiple offenses as constituting one single integrated offense. U.S. v. McCarthy, 77 F.3d 522 (1st Cir. 1996).
1st Circuit upholds departure where possession offense did not account for firing gun in crowded parking lot. (330) Defendant participated in a gun battle in a crowded parking lot. He was convicted of possessing firearms bearing obliterated serial numbers. The district court departed from a range of 21-27 months to impose concurrent sentences of 45 months on each count. The First Circuit approved the departure under note 16 to § 2K2.1 based on the substantial risk of death or bodily injury to multiple individuals. Defendant discharged his two firearms in a congested shopping center parking lot. The incident occurred during the middle of the day, defendant had run his car into another vehicle in the parking lot, and surrounding vehicles were riddled with bullet holes. U.S. v. Diaz-Martinez, 71 F.3d 946 (1st Cir. 1995).
1st Circuit approves obliterated serial number enhancement for possessor of unregistered sawed-off shotgun. (330) Defendant pled guilty to possessing a firearm with an obliterated serial number, 18 U.S.C. § 922(k), and possessing an unregistered sawed-off shotgun, 26 U.S.C. § 5861(d). The district court applied a § 2K2.1(b)(4) enhancement for a firearm with an obliterated serial number. Note 12 states that this enhancement does not apply if the defendant was convicted under 18 U.S.C. § 922(i), (j) or (k), or 26 U.S.C. § 5861(g) or (h), and is convicted of no other offenses under this guideline. The First Circuit upheld the § 2K2.1(b)(4) enhancement, finding that Note 12 did not except defendant’s § 5861(d) offense. The distinction between a 5861(d) offense and §§ 5861(g) and (h) offenses was rational. Section 5861(g) and (h) both proscribe conduct involving a firearm with an obliterated serial number, precisely the same conduct warranting the enhancement. In contrast, § 5861(d) involves possessing an unregistered firearm, conduct wholly different from that accounted for in § 2K2.1. U.S. v. Ortiz, 64 F.3d 18 (1st Cir. 1995).
1st Circuit rejects need for evidentiary hearing before imposing firearm enhancement. (330) Police found defendant assaulting another man. They searched defendant and found a loaded sawed-off shotgun concealed inside a pant leg. Defendant was convicted of being a felon in possession of a firearm. At sentencing, the parties presented conflicting affidavits from the assault victim as to whether defendant had threatened to shoot the victim before the fight. The district court rejected defendant’s request for an evidentiary hearing and imposed a § 2K2.1(b)(5) enhancement for possessing the firearm in connection with another felony. The First Circuit held that the district court did not abuse its discretion in refusing to hold an evidentiary hearing before imposing the enhancement. Defendant never disputed the victim’s claim that defendant started the fight. There was unrefuted evidence that defendant actually possessed the shotgun during the assault. Defendant’s carrying the gun during the assault satisfied § 2K2.1(b)(5) requirement that the firearm be used or possessed in connection with another felony. U.S. v. Sturtevant, 62 F.3d 33 (1st Cir. 1995).
1st Circuit finds uncharged guns were relevant conduct to felon in possession charge. (330) Defendant was convicted of being a felon in possession of a firearm in connection with a shootout that occurred on a street corner. The district court found that defendant possessed two additional guns found after the shooting in an apartment he shared with his girlfriend. It enhanced his offense level under § 2K2.1(b)(1) for possessing the additional guns, and under § 2K2.1(b)(4) because one of the guns had an obliterated serial number. Defendant argued that his possession of these guns was not part of the same course of conduct as required by § 1B1.3(a)(2). The Second Circuit disagreed, holding that the contemporaneous, or nearly contemporaneous, possession of uncharged firearms is relevant conduct in the context of a felon in possession prosecution. Defendant clearly possessed the guns in the apartment at the same time that he possessed the gun used in the shootout. U.S. v. Powell, 50 F.3d 94 (1st Cir. 1995).
1st Circuit upholds enhancement for armed defendant who remained where shootout occurred. (330) At 2:00, defendant observed a car carrying gang members drive by the corner where he was standing and yell something to others standing outside. He told his girlfriend and her mother to leave and they complied. At about 2:30, defendant was involved in a shootout on the same street corner. He was convicted of being a felon in possession of a firearm. The district court enhanced his sentence under § 2K2.1(b)(5) for possessing the firearm in connection with another felony—the unjustified killing of one of the participants in the shootout. The Second Circuit affirmed, agreeing that defendant chose to place himself in the middle of a shootout in which he chose not to withdraw, but to engage. The district court justifiably found that defendant knew of the possibility of a shootout before it took place, possessed the gun before the inception of the shoot-out, and sought out the men who were involved in the initial confrontation. Defendant’s trial testimony of how he came to possess the gun (one of the shooters “lost control” of the gun and defendant picked it up) was inherently improbable. U.S. v. Powell, 50 F.3d 94 (1st Cir. 1995).
1st Circuit says “in connection with” includes firearm possession that aids another offense. (330) Defendant was the leader of a group of persons who sold drugs and a firearm to a confidential informant on separate occasions. He pled guilty to a single firearms charge. Section 2K2.1(c)(2) cross-references § 2X1.1 where the firearm is possessed “in connection with” the commission of another offense. The 1st Circuit held that “in connection with” should be given its customary meaning. There must be some “reasoned link” between a defendant’s possession of a firearm and the commission of another offense. Where a defendant’s firearm possession aids or facilitates the commission of another offense, the requisite link is present. Here, while purchasing drugs, the confidential informant repeatedly sought to purchase firearms. It was reasonable to believe that the group’s later sale of the gun to the informant facilitated the cocaine sales. The guidelines do not require a physical proximity between the firearm and the drugs. U.S. v. Thompson, 32 F.3d 1 (1st Cir. 1994).
1st Circuit approves earlier gun-related crime as grounds for upward departure. (330) Defendant was convicted of being a felon in possession of a firearm. Although he had three prior felony convictions, he was not subject to the mandatory minimum 15-year sentence because one of his felonies was not a violent felony. Nevertheless, the district court departed upward in part because of the nature of one of defendant’s earlier crimes — an armed bank robbery. The 1st Circuit upheld the consideration of the nature of defendant’s prior crime as grounds for departure. The fact that Congress had imposed a 15-year mandatory minimum sentence for felons with three prior violent felonies suggests that there is something special about one or two prior violent felonies. Defendant’s robbery of a bank was committed in daylight, with guns, and put employees and bystanders at risk of serious harm. The district court’s decision to use these facts as one of several bases for departure was lawful. U.S. v. Doe, 18 F.3d 41 (1st Cir. 1994).
1st Circuit holds that extortion conviction under broad statute is crime of violence. (330) The guideline for unlawful possession of ammunition, § 2K2.1, provides for a higher offense level if a defendant has a prior felony conviction for a crime of violence or a controlled substance offense. The 1st Circuit held that defendant’s state conviction for extortion, under a statute that defines extortion more broadly than threats against a person, qualified as a crime of violence. Extortion is listed under section 4B1.2(1)(ii) as a crime of violence. The guideline neither states nor implies that extortion must involve a threat of harm against a person. The court rejected defendant’s suggestion to look to the Hobbs Act for federal definition of extortion. Moreover, even if a court did look at the Hobbs Act, the “fear” element under the Hobbs Act can be satisfied by threats other than threats of bodily harm. U.S. v. DeLuca, 17 F.3d 6 (1st Cir. 1994).
1st Circuit rejects sentencing manipulation claim. (330) Defendant sold a gun to an undercover agent. He received an enhancement under §2K2.1(b)(5) because the agent told defendant he intended to use the gun in a drug trafficking operation. Defendant argued that the government engaged in sentencing manipulation, since the agent did not speak of the gun’s intended use until the time of the sale, when it was too late to retreat from the deal. The 1st Circuit found the facts did not support this claim. The agent’s testimony made it clear that defendant knew of his customer’s proposed use for the weapon from the outset of their negotiations. When an offense level enhancement results from a matter that formed part and parcel of the original negotiations between a government agent and his target, and the criminal venture proceeds on that basis, a claim of sentencing manipulation will not lie. U.S. v. Brewster, 1 F.3d 51 (1st Cir. 1993).
1st Circuit holds upholds reliance on information not disclosed until after defendant pled guilty. (330) Defendant sold a gun to an undercover agent. After pleading guilty to being a felon in possession of a firearm, he learned through the PSR that the government intended to press for an enhancement under §2K2.1(b)(5), based on the agent’s representation that he intended to use the firearm to protect a drug trafficking operation. The 1st Circuit upheld the enhancement, rejecting defendant’s claim that a sentencing court cannot rely on evidence not known to a defendant at the time he tenders his plea. Absent bad faith, the critical time for disclosure of sentence-related information is not prior to taking a plea, but prior to sentencing. Through the PSR, defendant received ample warning of the agent’s allegations. He was able to challenge those allegations at an evidentiary hearing. No more was required. U.S. v. Brewster, 1 F.3d 51 (1st Cir. 1993).
1st Circuit finds no improper triple counting in sentencing for felon in possession and carrying a firearm during drug crime. (330) Defendant was convicted of being a felon in possession of a firearm, 18 U.S.C. section 922(g)(1), and carrying a firearm in relation to a drug trafficking crime, 18 U.S.C. section 924(c)(1). The 1st Circuit rejected defendant’s argument that it was improper to count the conduct underlying the section 924(c)(1) charge three times in computing his sentence. His guilty plea to section 924(c)(1) had three effects on his sentence: First, it required five years to be added to his felon in possession sentence. Second, under guideline section 4B1.4(b)(3)(A) it raised the base offense level from 33 to 34 for the felon in possession charge. Third, under section 4B1.4(c)(2) it raised the criminal history category from IV to VI for the felon in possession charge. Effects number two and three were plainly mandated by guideline section 4B1.4 and did not constitute impermissible double counting. The additional consecutive five year sentence was not prohibited by application note 2 to section 2K2.4, since defendant was not sentenced for the drug offense underlying the section 924(c)(1) charge. U.S. v. Sanders, 982 F.2d 4 (1st Cir. 1992).
1st Circuit permits collateral attack on prior convictions used to enhance under section 924(e). (330) Under 18 U.S.C. section 924(e), a defendant convicted of unlawful firearm possession who has three or more past “violent felony” convictions is subject to a mandatory minimum sentence of 15 years. The 1st Circuit reversed the district court’s ruling that a defendant may not collaterally attack a past conviction used to enhance his sentence under section 924(e). In U.S. v. Paleo, 967 F.2d 7 (1st Cir. 1992), decided several days earlier, the court held that a defendant may make such a collateral attack. U.S. v. Desmarais, 967 F.2d 17 (1st Cir. 1992).
1st Circuit finds no double counting in enhancement for transferring guns to persons prohibited from owning firearms. (330) Defendant was convicted of the interstate transportation and receipt of firearms. He received a two level enhancement under section 2K2.3(b)(2) for transferring the weapons to “a person prohibited by federal law from owning the firearm.” The 1st Circuit rejected defendant’s claim that the same behavior which provided the foundation for his own base offense was used to support the further adjustment under section 2K2.3(b)(2). Defendant’s base offense level was for the transportation and receipt of guns across state lines without a license. His sentence was enhanced because he then transferred the guns to other Massachusetts residents who were prohibited from possessing guns purchased in Georgia. The sale of guns to others was not an element of the base offense level for transporting guns across state lines without a license. U.S. v. Phillips, 952 F.2d 591 (1st Cir. 1991).
1st Circuit gives broad definition to “person prohibited by federal law from owning the firearm.” (330) Defendant was convicted of the interstate transportation and receipt of firearms. He received a two level enhancement under section 2K2.3(b)(2), which is applicable if the defendant knew that a purchaser was a person prohibited by federal law from owning the firearm. The 1st Circuit rejected defendant’s contention that the phrase “person prohibited by federal law from owning the firearm” refers only to those persons prohibited from possessing firearms under 18 U.S.C. section 922(g). There was no reason to limit the phrase to the class of people enumerated in section 922(g). The provision was designed to address a wide variety of firearms-related offenses. U.S. v. Phillips, 952 F.2d 591 (1st Cir. 1991).
1st Circuit rejects downward adjustment for firearm purchased for self-defense purposes. (330) Defendant pled guilty to unlawfully purchasing a firearm. He contended he was entitled to a four-level reduction under guideline § 2K2.1(b)(2) of the pre-November 1989 version of the guidelines because he obtained or possessed the firearm solely for sport or recreation. Defendant contended that he purchased the Beretta and .25 caliber gun for legitimate “lawful” uses, including hunting and self-defense. The 1st Circuit found that defendant was not entitled to the reduction. With respect to the .25 caliber, defendant conceded that the gun was not obtained for sporting purposes, but for self-defense for his wife. The guidelines do not provide for a reduction because a gun is possessed for potential use in self- defense. U.S. v. Cousens, 942 F.2d 800 (1st Cir. 1991).
1st Circuit upholds grouping third firearms offense separately from two earlier firearms offenses. (330) A jury found defendant guilty of unlawfully possessing firearms on three separate occasions. Since defendant was also found in possession of drugs on the first two occasions, the first two counts were grouped together. The 1st Circuit found that it was proper to group the third count separately from the first two. The first two counts involved possession of drugs and guns in the same house in the same town. The third count involved different officers, finding a different weapon, without drugs, in a different home, in a different town. The difference in place, time, nature of the guns, lack of drugs and intervening arrests, supported the conclusion that the third offense did not share a “common criminal objective” with the first two offenses, nor was it part of a common scheme or plan. U.S. v. Wheelwright, 918 F.2d 226 (1st Cir. 1990).
1st Circuit upholds use of drug guideline for felon who unlawfully possessed firearm. (330) Defendant was convicted of being a felon in unlawful possession of a firearm. The district court determined that defendant used the firearm in “committing or attempting” a drug offense, and therefore under the 1987 version of the firearms guideline, § 2K2.1, sentenced defendant under the drug offense guideline, § 2D1.1. The 1st Circuit found that the record supported the district court’s determination. Officers searching defendant’s house found three plastic freezer bags with cocaine residue, a scale commonly used for drug transactions, a magazine folded a special way used for drug sales, some marijuana, inositol powder, $25,000 cash in a couch, $9,000 cash elsewhere in the house, a loaded shotgun and a loaded rifle. Defendant was firing the rifle when officers entered his house. The 1st Circuit also found that in applying the drug guideline, it was proper for the district court to add two points to defendant’s offense level for possession of the guns. The language in the 1987 firearms guideline made it clear that the court is to apply the cross-referenced drug guideline, including any upward adjustment for possessing guns. U.S. v. Wheelwright, 918 F.2d 226 (1st Cir. 1990).
1st Circuit upholds increase for reckless endangerment although elements of simple endangerment were present. (330) The arson guideline 2K1.4(b) has a specific offense characteristic for both simple endangerment and reckless endangerment. The offense level increase for simple endangerment is 4 levels and 14 levels for reckless endangerment. The guideline requires that when more than one specific offense characteristic applies, the greatest shall be used. The 1st Circuit rejected defendant’s argument that guideline § 1B1.1 required a lesser increase to be applied because of its requirement that when offense level adjustments are applied “only the one that best describes the conduct is to be used” (guideline § 1B1.1, application note 4). The court held that although simple endangerment will always more clearly appear when reckless endangerment is found, the guidelines “do not contemplate that the lesser increase is always more appropriate because it is more certain.” To so hold would “run contrary to the existence of multiple levels in the first instance.” U.S. v. Medeiros, 897 F.2d 13 (1st Cir. 1990).
2nd Circuit says “lawful sporting purposes” reduction does not require actual sporting use of firearm. (330) Defendant was convicted of being a felon in possession of a firearm. He challenged the district court’s denial of a “lawful sporting purposes” reduction, arguing that the court misinterpreted § 2K2.1(b)(2) as requiring proof that defendant actually used each firearm for lawful sporting purposes. The Second Circuit agreed that the court erred in treating the inquiry into the purpose of possession as equivalent to an inquiry into actual use, but found the error was harmless. The relevant inquiry is whether the defendant possessed firearms with the intent to use them for a lawful sporting purpose. While evidence of actual use is relevant and may be dispositive, the guidelines do not require evidence of actual use for sporting purposes. Here, defendant denied having possessed a 12-gauge shotgun. His denial was not a claim that he possessed it for lawful sporting purposes. U.S. v. Mason, 692 F.3d 178 (2d Cir. 2012).
2nd Circuit applies firearm increase even though defendant’s gun was discharged by intended victim. (330) Defendant participated in a drug conspiracy. On one occasion, defendant and a co-conspirator attempted, at gunpoint, to recover stolen drugs from an individual. The intended victim grabbed the gun and discharged it, wounding defendant’s accomplice. The Second Circuit upheld an increase under 18 U.S.C. § 924(c)(1)(A)(iii) for the discharge of a weapon during a drug-trafficking crime. The statute provides a ten-year mandatory minimum if the defendant carries a firearm and “the firearm is discharged.” It does not require the firearm to be discharged by the defendant. The Supreme Court upheld an enhancement when the firearm was discharged accidentally in Dean v. U.S., 556 U.S. 568, 129 S.Ct. 1849 (2009). The clear import of that decision is that a defendant need not directly cause a discharge to be subject to the firearm-discharge enhancement. U.S. v. Echeverry, 649 F.3d 159 (2d Cir. 2011).
2nd Circuit says § 2X1.1(a) cross-reference must be based on “reasonable certainty.” (330) Defendants were convicted of a variety of firearms trafficking charges, including engaging in a domestic firearms trafficking conspiracy. Section 2X1.1(a) states that where a conspiracy is not covered by a specific offense guideline, the base level is the “base offense level from the guidelines for the substantive offense, plus any adjustments from such guideline for any intended offense conduct that can be established with reasonable certainty.” The district court looked to § 2K2.1(a)(4)(B) to set the base offense level at 20 because the offense involved a machine gun and was committed while defendant was an illegal alien. However, the Second Circuit ruled that it was improper to use the preponderance of the evidence standard to make factual findings for two offense level increases – one for a conspiracy involving more than 200 weapons (§ 2K2.1(b)(1) (E)) and the other for a conspiracy involving a destructive device (§ 2K2.1(b)(3)(A)). The offense level adjustments in § 2K2.1(b) do not mention a conspiracy. Therefore, the district court should have reverted to the “reasonable certainty” standard described in § 2X1.1(a) when it applied the two offense level increases. U.S. v. Nadirashvili, 655 F.3d 114 (2d Cir. 2011).
2nd Circuit upholds machinegun increase where gun was originally designed to fire automatically. (330) Defendant pled guilty to possessing a firearm in violation of 18 U.S.C. § 922(j), and received a six-level enhancement after the district court found that the stolen weapon was a machinegun within the meaning of 26 U.S.C. § 5845(b). Defendant argued that because the automatic fire feature was disabled when he stole the gun, it no longer qualified as a machinegun. The Second Circuit rejected the argument, ruling that because the weapon originally was designed to fire automatically, it was a machinegun within the meaning of § 5845(b). That section defines a “machinegun” to include “any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot ….” The word “designed,” when applied to a manufactured object such as a firearm, refers to what the gun was designed for, and not to modifications made afterwards. U.S. v. Gravel, 645 F.3d 549 (2d Cir. 2011).
2nd Circuit requires consecutive five years for firearms despite greater minimum sentence for drugs. (330) Defendant was convicted of drug charges, and possessing a firearm in furtherance of these drug crimes. The court sentenced him to concurrent mandatory minimum prison terms of 120 months for the drug charges, and a consecutive 60-month prison term for the firearm charge under 18 U.S.C. § 924(C)(1)(a)(i). Defendant argued that under U.S. v. Williams, 558 F.3d 166 (2d Cir. 2009), cert. granted, judgment vacated by U.S. v. Williams,131 S.Ct. 632 (2010), and U.S. v. Whitley, 529 F.3d 150 (2d Cir. 2008), abrogated as to consecutive sentencing by Abbott v. U.S., 131 S.Ct. 18 (2010) as recognized by U.S. v. Tejada, 631 F.3d 614 (2d Cir. 2011), a consecutive sentence under § 924(c)(1)(A)(i) is not required if the defendant is subject to a longer mandatory minimum for a predicate drug trafficking offense. The Second Circuit rejected the argument based on the Supreme Court’s recent decision in Abbott v. U.S., 131 S.Ct. 18 (2010), which held that the consecutive, five-year sentence was required on the firearm count despite the greater minimum sentence on the drug trafficking counts. Abbott rejected Williams’ and Whitley’s interpretation of § 924(c)(1)(A). U.S. v. Tejada, 631 F.3d 614 (2d Cir. 2011).
2nd Circuit reaffirms validity of strict liability standard for stolen firearm enhancement. (330) Defendant pled guilty to being a felon in possession of a firearm, and received a § 2K2.1 (b)(4)(A) enhancement because the firearm was stolen. The enhancement applies whether the defendant knew that the gun was stolen or not, and in U.S. v. Griffiths, 41 F.3d 844 (2d Cir. 1994), the Second Circuit held that the lack of scienter was permissible. Defendant argued that in light of recent Supreme Court sentencing cases, the strict liability standard was invalid. The Second Circuit reaffirmed the continuing validity of Griffiths. The strict liability standard was not implicated by Apprendi and Blakely because the enhancement does not alter the statutory maximum sentence, and defendant received a sentence well within the statutory maximum for his possession offense. Booker and Kimbrough did not help defendant, because those cases concerned the advisory nature of the Guidelines. The panel also rejected defendant’s Equal Protection claim, even though a different guideline imposes an enhancement for offenses involving stolen explosives only if the defendant knew or had reason to believe that the explosives were stolen. § 2K1.3(b)(2). U.S. v. Thomas, 628 F.3d 64 (2d Cir. 2010).
2nd Circuit adopts “substantial risk” test to decide if applying amended guideline violates ex post facto clause. (330). After the date of defendant’s firearms offenses, the Sentencing Commission increased, from two to four, the adjustment in § 2K2.1(b)(4)for having an obliterated serial number. Appellate courts are divided over whether applying a guideline amended after the date of an offense violates the ex post facto clause now that the guidelines are advisory. The Second Circuit adopted the “substantial risk” standard articulated by the D.C. Circuit in U.S. v. Turner, 548 F.3d 1094 (D.C. Cir. 2008). Under this standard, a court examines the facts of the case to see if using the amended Guidelines created a “substantial risk” that defendant’s sentence was more severe, and if so, its use violates the ex post facto clause. Here, there was no such risk. Defendant received a non-Guidelines sentence of 120 months, 48 months below the bottom of the amended guideline range. There was no substantial risk that the sentencing judge, having made such a generous deviation, would have imposed a non-guidelines sentence of less than 120 months if the bottom of the applicable range had been 151 months rather than 168 months. U.S. v. Ortiz, 621 F.3d 82 (2d Cir. 2010).
2nd Circuit applies modified categorical approach to prior common law crimes. (330) Defendant received an enhanced offense level under § 2K2.1(a)(2) for having two prior convictions for a crime of violence. He challenged the court’s finding that his 1999 conviction for “strong arm robbery,” a South Carolina common law offense, was a crime of violence. He contended that, unlike statutory offenses, common law crimes never categorically qualify as predicate offenses. Whether a prior conviction to a statutory offense is a qualifying predicate offense is guided by the two-step “modified categorical approach” in U.S. v. Savage, 542 F.3d 959 (2d Cir. 2008). The Second Circuit found no reason for the analysis to be different with respect to common law crimes. For purposes of defining a crime of violence under § 4B1.2(a), when a state crime is defined by specific and identifiable common law elements, rather than by a specific statute, the common law definition of a crime serves as a functional equivalent of a statutory definition.” U.S. v. Walker, 595 F.3d 441 (2d Cir. 2010).
2nd Circuit upholds consecutive firearm sentence where unrelated count carried greater mandatory minimum sentence. (330) Defendant was convicted of drug and firearms charges. He argued that the imposition of a consecutive 60-month sentence pursuant to 18 U.S.C. § 924(c)(1)(A) for his firearms felony ran afoul of the express language of that statute, as construed in recent Second Circuit decisions. Section 924(c) (1)(A) provides for a mandatory consecutive sentence for certain firearms offenses “[e]xcept to the extent that a greater minimum sentence is otherwise provided by this subsection.” In U.S. v. Whitley, 529 F.3d 150 (2d Cir. 2008), abrogated as to consecutive sentencing by Abbott v. U.S., 131 S.Ct. 18 (2010) as recognized by U.S. v. Tejada, 631 F.3d 614 (2d Cir. 2011), the Second Circuit held that the “except” clause refers to a mandatory minimum provided by any other provision of law. See also U.S. v. Williams, 558 F.3d 166 (2d Cir. 2009), cert. granted, judgment vacated by U.S. v. Williams,131 S.Ct. 632 (2010). The Second Circuit found that Whitley/Williams had no bearing on this case because the predicate drug crime underlying defendant’s conviction did not dictate a mandatory minimum sentence. Although Count V did carry a mandatory minimum sentence of ten years, the “except” clause only applies to minimum sentences for offenses “arising from the same criminal transaction or operative set of facts.” Count V did not arise from “the same criminal transaction or operative set of facts.” U.S. v. Parker, 577 F.3d 143 (2d Cir. 2009).
2nd Circuit finds clarifying application note did not violate ex post facto clause. (330) Defendant pled guilty to being a felon in possession of a firearm and received a four-level enhancement under § 2K2.1(b)(5) for possessing a firearm in connection with another felony offense. Defendant argued that the district court violated the ex post facto clause by relying on a 2006 application note issued after his offense. Note 14(B) to § 2K2.1 states that the enhancement is warranted “in a case in which a defendant who, during the course of a burglary, finds and takes a firearm, even if the defendant did not engage in any other conduct with that firearm during the course of the burglary.” Prior to the addition of this application note, there was a circuit split on whether a burglary involving the theft of firearms permitted the application of this enhancement. However, the Second Circuit never decided this question. Because the application note served only to clarify the scope of the pre-existing law, the Second Circuit ruled that the ex post facto clause was not implicated. U.S. v. Johnston, 558 F.3d 193 (2d Cir. 2009).
2nd Circuit holds statute that includes “offer to sell” drugs is not controlled substance offense. (330) Defendant received an enhanced sentence under §2K2.1(a)(2) based on the district court’s finding that his Connecticut drug conviction qualified as a “controlled substance offense” under U.S.S.G. §4B1.1(b). The Second Circuit held that the Connecticut conviction did not categorically qualify as a “controlled substance offense” because it criminalized conduct that fell outside the Guidelines’ definition. The Connecticut law applied to a mere offer to sell a controlled substance, which, absent possession, does not fit within the definition of a controlled substance offense. Moreover, the government did not show that the plea “necessarily” rested on facts that would make the crime a controlled substance offense. At the narrowest, defendant pled guilty to a “sale” of a controlled substance. Because a “sale” under Connecticut law includes a mere offer to sell drugs, the conviction was not a controlled substance offense. U.S. v. Savage, 542 F.3d 959 (2d Cir. 2008).
2nd Circuit holds that reckless endangerment is not crime of violence. (330) Defendant was convicted of being a felon in possession of a firearm. The district court found that defendant’s prior New York conviction for reckless endangerment in the first degree was a crime of violence under § 4B1.2(a)(2). After defendant was sentenced however, the Supreme Court decided Begay v. U.S., 553 U.S. 137, 128 U.S. 1581 (2008), so the Second Circuit reversed. Reckless endangerment does not fall within the definition of “crime of violence” because it does not involve purposeful conduct as required by § 4B1.2(a)(2). U.S. v. Gray, 535 F.3d 128 (2d Cir. 2008).
2nd Circuit rejects “another felony” enhancement based on reckless firing of gun into air. (330) Police responded to calls of shots being fired in a residential neighborhood. Defendant was found with a gun that matched shelling casings recovered from the scene, and convicted of being a felon in possession of a firearm. The district court applied a § 2K2.1(b)(6) enhancement for possessing a firearm in connection with another felony offense. The district court applied the enhancement based on testimony that defendant had fired the gun in the air, which amounted to reckless endangerment. Alternatively, the court found that defendant had possessed the gun in the course of committing an aggravated assault. The Second Circuit reversed. In New York, there were two degrees of reckless endangerment, only one of which was a felony. To constitute a felony, the district court would have had to find that defendant’s conduct created a “grave risk of death” and that he acted with a mens rea of “depraved indifference to human life.” The court did not make such a finding, and the facts in the record did not support such a finding. As for the aggravated assault, the court also did not mention the essential elements of the offense or identify facts in the record that satisfied them. U.S. v. Legros, 529 F.3d 470 (2d Cir. 2008).
2nd Circuit rejects consecutive 10-year sentence for defendant subject to 15-year minimum ACCA sentence. (330) Defendant was convicted of a Hobbs Act robbery, 18 U.S.C. § 1951 (Count 1), using, carrying and possessing a firearm that was discharged during a crime of violence, 18 U.S.C. § 924(c)(1)(A)(iii) (Count 2), and being an armed career criminal, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e) (Count 3). The district court sentenced defendant to concurrent terms of 262 months on Counts 1 and 3, plus 120 months consecutively on Count 2. The Second Circuit reversed, holding that the consecutive ten-year minimum sentence for discharge of a firearm did not apply to a defendant because he was also subject to a 15-year minimum sentence for being a felon in possession of a firearm. The mandatory minimums in § 924(c)(1)(A) apply “Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law.” The panel found that the “except” clause means what it literally says. Although the Fourth, Sixth and Eighth Circuits have declined to read the “except” clause literally, the panel disagreed with them. The preference is to give statutes their literal meaning unless it would yield an illogical result or one not intended by the legislature. That was not the case here. U.S. v. Whitley, 529 F.3d 150 (2d Cir. 2008), abrogated as to consecutive sentencing by Abbott v. U.S., 131 S.Ct. 18 (2010) as recognized by U.S. v. Tejada, 631 F.3d 614 (2d Cir. 2011).
2nd Circuit holds that burglary in the third degree was crime of violence. (330) Defendant received an enhanced offense level under § 2K2.1 based on the court’s finding that his prior New York conviction for burglary in the third degree was a crime of violence. Defendant argued that the offense was for burglary of a “building” rather than a dwelling, and thus did not qualify as a crime of violence. The Fifth Circuit ruled that the district court did not err, finding that the residual “otherwise involves” clause at the end of § 4B1.2(a)’s definition of a crime of violence includes burglary of a building that is not a dwelling. The panel examined (a) the residual clause at the end of § 4B1.2(a)(2); (b) the identically worded residual clause in 18 U.S.C. § 924(e)’s definition of “violent felony”; (c) the interpretation of § 924(e) by the Supreme Court in Taylor v. U. S., 495 U.S. 575 (1990) and its own opinion in U.S. v. Andrello, 9 F.3d 247 (5th Cir. 1993), with respect to the nature of burglaries; (d) the court’s parallel constructions of § 4B1.2(a)’s concept of “crime of violence” and § 924(e)’s concept of “violent felony” in analyzing non-burglary felonies; and (e) the absence of a relevant statement by the Sentencing Commission interpreting § 4B1.2(a)’s residual clause. U.S. v. Brown, 514 F.3d 256 (2d Cir. 2008).
2nd Circuit holds that enhancement for obliterated serial numbers is strict liability provision. (330) Guideline § 2K2.1(b)(4) provides for a two-level enhancement if any firearm had an altered or obliterated serial number. Note 19 provides that the enhancement applied whether or not the defendant knew or had reason to believe that the firearm had an altered or obliterated serial number. The Second Circuit upheld the application of the enhancement to defendant, since it did not matter whether he knew the numbers were obliterated. The PSR stated unequivocally that at least two of the guns sold by defendant had serial numbers that were obliterated, and defendant made no objection to that statement. U.S. v. Brown, 514 F.3d 256 (2d Cir. 2008).
2nd Circuit finds reliance on population density to impose above-guidelines sentence was legal error. (330) Defendant was convicted of conspiring to deal in and transport firearms. Although his guideline range was 12-18 months, the district court decided to impose a non-guideline sentence of 24 months. The court reasoned that gun trafficking in an urban environment like New York City inflicts greater harm and requires stiffer penalties to achieve deterrence than the same offense committed in less densely populated parts of the country. The Second Circuit held that under the circumstances of this case, the court’s reliance on the simple fact of population density to impose a non-guidelines sentence was legal error. A demographics-based approach threatens to undermine a primary purpose of the guidelines, to bring nationwide uniformity to federal criminal sentences. The court based defendant’s sentence on its own public policy determination, and, while post-Booker courts have more discretion in sentencing, a district “cannot import its own philosophy of sentencing if it is inconsistent with the § 3553(a) factors.” Moreover, the court’s support for its assessment of the harmfulness of defendant’s crime was speculative. Although injury to innocent bystanders is more probable in crowded environments, the City of New York has five boroughs with varying population densities. New York City is too large and varied a community to draw meaningful conclusions as the potential impact of stray bullets that may someday originate from a trafficked firearm. U.S. v. Cavera, 505 F.3d 216 (2d Cir. 2007).
2nd Circuit finds New York Certificate of Disposition insufficient to show that prior conviction was a “crime of violence.” (330) The guideline for possession of a firearm by a convicted felon, § 2K2.1, sets an offense level of 20 if the defendant committed the offense after a conviction for a “controlled substance offense.” That term is defined in § 4B1.2(b) to include a felony involving the possession of a controlled substance with the intent to distribute it. Defendant had a prior conviction for violating New York Penal Law § 220.16. Subsection (1) of that statute proscribes possession with intent to distribute, but other subsections proscribe offenses that do not qualify as “controlled substance offenses.” The government showed that defendant was charged under subsection (1), but was unable to obtain a formal judgment showing the offense to which defendant pleaded guilty. Instead, the government introduced a Certificate of Disposition, which is based on the court’s computer record of the conviction. The Certificate showed that defendant was convicted of violating §220.16(1). The Second Circuit held that the Certificate is a judicial document that a court may consider in determining the nature of a prior offense, but that the Certificate produced in defendant’s case, standing alone, did not provide a sufficient basis for the district court to find that defendant was convicted under § 220.16(1) for a “controlled substance offense.” U.S. v. Green, 480 F.3d 627 (2d Cir. 2007).
2nd Circuit holds that above guideline sentence was reasonable for felon selling gun to suspected criminal. (330) Defendant pled guilty to being a felon in possession of a firearm. His guideline range was 21-27 months, but the district court imposed a non-guideline sentence of 48 months. The basis for the increase was that defendant “had a relatively uninterrupted string of criminal activity and arrests.” The district court found defendant had “no respect for the law,” having had “interaction after interaction after interaction with the criminal justice system, and his response to it is to turn around and literally, the moment he’s back on the street do something else.” Moreover, defendant was selling a gun on the street to somebody “that he suspected was about to do bad with it.” The Second Circuit held that the variance from the guideline range was reasonable. Defendant’s repeated convictions and lenient treatment by state courts supported the court’s finding that he was prone to recidivism. Moreover, defendant not only possessed the firearm as an aggravated felon, which itself established the crime, but also sold it to an undercover agent who defendant believed was involved in criminal activity. Even if the sentence had been imposed under the guidelines, an upward departure might have been warranted under § 4A1.3 and § 5K2.0. U.S. v. Fairclough, 439 F.3d 76 (2d Cir. 2006).
2nd Circuit finds no Sixth Amendment violations where defendant did not object to facts in PSR. (330) Prior to sentencing, defendant objected to the PSR’s recommended sentence under Blakely v. Washington, 124 S.Ct. 2531 (2004). Thus, the Second Circuit considered the course to follow where an objection to the compulsory use of the Sentencing Guidelines has been preserved. Defendant pled guilty to possessing a stolen firearm. Inherent in his plea was an admission that the crime involved a stolen firearm. Therefore, the stolen firearm enhancement did not violate defendant’s Sixth Amendment rights. The imposition of criminal history points based on two prior convictions also did not violate the Sixth Amendment. Defendant did not object to the PSR’s recitation of such convictions. The PSR noted, without objection from defendant, that he was serving a 6-12 month term of probation at the time of the offense. “While the exact scope of the phrase ‘fact of a prior conviction’ has yet to be determined, the conviction itself, and the type and length of a sentence imposed seems logically to fall within this exception.” Finally, the prohibited person enhancement under § 2K2.1 also did not violate the Sixth Amendment. Defendant made no objection to the facts contained in the PSR; therefore, the facts of his prior conviction could be taken as admitted. U.S. v. Fagans, 406 F.3d 138 (2d Cir. 2005).
2nd Circuit rules gun found in closet with drugs was possessed “in connection with” drug conspiracy. (330) Police searching defendant’s apartment for drugs also found three firearms, including a sawed-off shotgun recovered in the attic, a single shot shotgun recovered in the garage, and a revolver found in a coat pocket in defendant’s bedroom closet. Also found in the closet were 235.8 grams of marijuana and $1050 in currency. Defendant stated that he had been selling marijuana in order to support a heroin habit, and that he had purchased the gun two months earlier after he had heard that someone intended to rob him. He pled guilty to being a felon in possession of a firearm. The Second Circuit affirmed a § 2K2.1(b)(5) increase for possession of a firearm “in connection with” felony distribution of marijuana. Where a defendant claims that he needed a drug for protection, and the gun is found with the drugs, this is sufficient to support a finding that the gun was used “in connection with” a drug conspiracy. U.S. v. Spurgeon, 117 F.3d 641, 644 (2d Cir. 1997). U.S. v. Ortega, 385 F.3d 120 (2d Cir. 2004).
2nd Circuit holds that New York state youthful offender adjudication was prior felony conviction. (330) Section 2K2.1 provides for an enhanced base offense level if the defendant committed the offense after sustaining one or more felony convictions. The Second Circuit held that the district court did not err in counting defendant’s New York state youthful offender adjudication as a prior conviction for § 2K2.1 purposes. In U.S. v. Matthews, 205 F.3d 544 (2d Cir. 2000), the Second Circuit held that a New York youthful offender adjudication was properly counted in the calculation of a defendant’s criminal history under § 4A1.2. In U.S. v. Driskell, 277 F.3d 150 (2d Cir. 2002), the court held that a court may consider a conviction that has been vacated and the defendant deemed a youthful offender under New York law, where the defendant was convicted as an adult and received and served a sentence exceeding 13 months in an adult prison. Under the reasoning of Matthews and Driskell, determining whether a New York youthful offender adjudication is “classified as an adult conviction under the laws of” New York for purposes of § 2K2.1 requires courts to examine the substance of the prior conviction. Here, where defendant was indisputably tried and convicted in an adult forum, and served his sentence in an adult prison, the district court correctly applied § 2K2.1 to count his youthful offender adjudication in New York as an adult conviction. U.S. v. Cuello, 357 F.3d 162 (2d Cir. 2004).
2nd Circuit says defendant had reason to believe that guns he sold to drug dealer would be used in another felony. (330) Defendant, who had no criminal record, purchased numerous firearms in Texas, and then traveled to New York where he resold them to a drug dealer. The Second Circuit affirmed a § § 2K2.1(b)(5) increase for transferring “any firearm or ammunition with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony offense.” Defendant knew that his buyer was a drug dealer who owned guns and regularly carried guns himself. Defendant also knew that the guns he obtained for the dealer were numerous, cheap, and included many small, easily-concealed handguns. U.S. v. Mitchell, 328 F.3d 77 (2d Cir. 2003).
2nd Circuit affirms firearms departures. (330) Defendant pled guilty to illegal possession of two machine guns, a short-barreled rifle, and at least one destructive device, in violation of 26 U.S.C. § 5861(d). The district court departed upward one level pursuant to Application Note 16(2) of USSG § 2K2.1 because defendant’s offense “involved multiple National Firearms Act weapons.” The court also departed upward two levels pursuant to Application Note 16(4) of USSG § 2K2.1 because the offense “posed a substantial risk of death or serious bodily injury to multiple individuals.” The Second Circuit, without further discussion, affirmed the departures for the reasons stated in the district court’s opinion U.S. v. Brunet, 2001 WL 135759 (S.D.N.Y. 2001). U.S. v. Brunet, 275 F.3d 215 (2d Cir. 2001).
2nd Circuit holds that drug use made defendant a “prohibited person.” (330) Defendant was convicted of illegally selling firearms. Section 2K2.1(a)(6) provides for a sentence enhancement if the defendant is a “prohibited person,” which is defined to include “an unlawful user of … any controlled substance.” See Note 6 to § 2K2.1. The PSR reported that from 1970 to 1998 (when he was arrested for the instant offense) defendant smoked marijuana and ingested cocaine on an intermittent basis. Defendant contested this statement, but at sentencing the district court found that “during the period of these crimes [defendant] was an unlawful user” of a controlled substance. The district court also noted that defendant had tested positive for cocaine while on bail in this case. The Second Circuit affirmed the prohibited person increase, concluding that the district court did not err in finding that defendant was unlawfully using drugs during the time period in which he illegally sold guns and conspired to do so. The fact that there was no connection between defendant’s drug use and his firearms offense was irrelevant—no such connection is required. U.S. v. Nevarez, 251 F.3d 28 (2d Cir. 2001).
2nd Circuit holds that grouping did not convert robbery into underlying offense of § 924(c) count. (330) Application Note 2 to § 2K2.4 provides that where a sentence is imposed in conjunction with a sentence for an offense underlying a § 924(c) conviction, any specific offense characteristic relating to the firearm should not be applied. Defendant argued that grouping his Florida robbery with his New York robbery caused the Florida robbery to become an underlying offense for purposes of Note 2. Thus, he contended that adding a firearm enhancement to his offense level for the Florida robbery and imposing a consecutive sentence for violation of § 924(c) in connection with the New York robbery constituted improper double counting. The Second Circuit disagreed. The multiple count grouping of the Florida and New York robberies for purposes of determining a combined offense level did not convert the Florida robbery into an “underlying offense” of the § 924(c) violation for purposes of Note 2. Specific offense enhancements are determined prior to grouping, and the offense level for each of the multiple counts is readjusted after grouping. There was no need to apply the rule of lenity because Note 2 is not ambiguous. U.S. v. Tran, 234 F.3d 798 (2d Cir. 2000), overruled on other grounds, U.S. v. Thomas, 274 F.3d 655 (2nd Cir. 2001).
2nd Circuit holds that post-offense convictions are not prior felony convictions under firearms guideline. (330) Section 2K2.1(a)(1) provides that if the offense involved certain types of firearms, “and the defendant had at least two prior felony convictions of either a crime of violence or a controlled substance offense,” the base offense level is 26. The district court ruled that defendant had “at least two prior felony drug convictions” because after he committed the current offense but before sentencing, he was convicted of robbery and drug charges. Joining the Sixth Circuit, and rejecting the position of a majority of the circuits, the Second Circuit held that post-offense convictions should not be included as prior felony convictions under § 2K2.1(a)(1). Cf. U.S. v. Barton, 100 F.3d 43 (6th Cir. 1996) with U.S. v. Laihben, 167 F.3d 1364 (11th Cir. 1999). The language of § 2K2.1(a)(1) is unambiguous. The use of the past tense (“had” rather than “has”) compels the conclusion that the provision applies when the defendant had two prior convictions at the time of the offense, not at the time of sentencing. Moreover, § 2K2.1 is located in the Offense Conduct portion of the guidelines, and thus is concerned with defendant’s status at the time he committed the crime. Note 5 to § 2K2.1 does not mandate a different conclusion. U.S. v. Pedragh, 225 F.3d 240 (2d Cir. 2000).
2nd Circuit approves departure for repeated guns sales. (330) Defendant was arrested in Rochester, New York after transporting 13 firearms from Alabama. He pled guilty under 18 U.S.C. § 922(a)(1) to illegally dealing in firearms. He admitted in his plea agreement that in the previous year he had purchased 39 handguns on several occasions in Alabama and resold them in Rochester. The district court departed upward based on defendant’s “repeated conduct,” finding defendant systematically purchased guns about every two months for resale in Rochester, which he specifically targeted because of its high crime rate and high demand for guns. The Second Circuit affirmed. A conviction under § 922(a) for being “engaged in the business” of selling guns contemplates more than one sale. Furthermore, § 2K2.1(b)(1) provided for a five-level increase based on the number of firearms involved in the offense. However, the court did not rely solely on the number of guns involved. Rather, the court found that it was the repeated nature of defendant’s conduct that warranted a departure. Although the same number of guns can ultimately enter a neighborhood in single or multiple trips, it is within a district court’s discretion to consider the dangerousness apparent in a defendant who has acted illegally more than once. U.S. v. Carter, 203 F.3d 187 (2d Cir. 2000).
2nd Circuit excludes legally possessed firearms from number of firearms in offense. (330) Defendant was convicted of possessing six different illegal firearms. The district court applied a four-level increase under § 2K2.1(b)(1) (D) based upon a finding that the crime involved 13 firearms. The Second Circuit held that the district court erred in including seven uncharged firearms in the total number of firearms, since defendant’s possession of these seven guns did not violate any federal law. Section 2K2.1(b)(1) specifically directs that a court may count only the firearms involved in “the offense.” Moreover, note 9 specifies that “only those firearms that were unlawfully sought to be obtained, unlawfully possessed, or unlawfully distributed” are to be included “[f]or purposes of calculating the number of firearms under subsection (b)(1).” The fact that defendant violated state and local law by possessing additional firearms without a state or local license was not sufficient to mandate counting the guns. Under § 1B1.3(a)(2), state offenses are not counted as conduct relevant to a federal offense unless the state offense would have been a federal offense but for lack of a jurisdictional element, such as transportation across state lines. U.S. v. Ahmad, 202 F.3d 588 (2d Cir. 2000).
2nd Circuit finds defendant knew transferred gun would be used in another felony. (330) Defendant was convicted of possessing a number of illegal firearms. The district court applied a § 2K2.1(b)(5) enhancement based on its conclusion that defendant had given Brown a firearm with reason to know that it would be used or possessed in connection with another felony. Brown testified that when he expressed concern to defendant about his ability to go through with a contract killing, defendant suggested that Brown “practice” by killing “somebody who doesn’t really contribute to society,” such as a bum.” The Second Circuit affirmed the enhancement. U.S. v. Ahmad, 202 F.3d 588 (2d Cir. 2000).
2nd Circuit holds that enhancement for obliterated serial number was not double counting. (330) Defendant was convicted of possessing several illegal firearms. He argued that a § 2K2.1(b)(4) enhancement for possessing a firearm with an obliterated serial number was double counting because the underlying offense included possessing a firearm with an obliterated serial number. Note 12 to § 2K2.1 says that if “the only offense to which § 2K2.1 applies is 18 U.S.C. § 922(k) … (offenses involving an altered or obliterated serial number) and the base offense level is determined under subsection (a)(7), do not apply the adjustment in subsection (b)(4) … This is because the base offense level takes into account that the firearm had an altered or obliterated serial number.” Defendant’s offense level was determined under subsection (a)(5) because one of his firearms was a sawed-off shotgun. Thus, the base offense level did not include the obliterated serial number, note 12 did not apply, and the adjustment was proper. U.S. v. Ahmad, 202 F.3d 588 (2d Cir. 2000).
2nd Circuit holds that “prohibited person” includes those with pending charges filed by information. (330) Section 2K2.1(a)(4)(B) provides for a higher offense level for those firearms defendants who qualify as a “prohibited person.” A prohibited person includes anyone who “is under indictment for, or has been convicted of, a ‘crime punishable by imprisonment of more than one year,’ as defined by 18 U.S.C. § 921(a)(20).” Defendant had state felony charges pending at the time of the offense. He argued that because the felony charges were made by means of an information, rather than by indictment, he was not a prohibited person. The Second Circuit held that “prohibited person” in § 2K2.1(a)(4)(B) includes those whose pending state felony charges were filed by information. The terms in § 2K2.1 are reasonably understood to carry the same meaning as used in § 922. The term indictment in § 922 “includes an indictment or information in any court” in which a crime carrying a sentence exceeding one year may be prosecuted. Defendant’s reading would result in significantly different sentences for those with pending felony charges depending solely on whether the pending charges were in a jurisdiction that used the grand jury or the information procedure. U.S. v. Shepardson, 196 F.3d 306 (2d Cir. 1999).
2nd Circuit holds that prior burglaries were relevant conduct to burglary 19 months later. (330) In April 1995, defendants burglarized two hunting camps in Vermont, stealing firearms. Some 19 months later they looted a third hunting camp in Vermont, stealing a dozen more guns. They traded the guns stolen during the first two burglaries for money and marijuana. Defendants pled guilty to charges relating to the firearms stolen in the third burglary. The district court imposed a § 2K2.1(b)(5) enhancement because defendants possessed a firearm “in connection with” another felony, the swap of guns for drugs. Defendants argued that the trade of the guns for drugs was too attenuated from the third burglary to support the enhancement. The Second Circuit upheld the district court’s finding that the earlier burglaries were relevant conduct to the later burglary. Defendants were accomplices in all three burglaries, which shared a similar modus operandi and the common purpose of stealing guns to buy drugs. Despite the 19-month interval between the first two burglaries and the third burglary, they were sufficiently similar to qualify as an ongoing series of offenses. U.S. v. Shepardson, 196 F.3d 306 (2d Cir. 1999).
2nd Circuit holds that stolen firearm enhancement not double counting. (330) Defendant pled guilty to possessing stolen firearms, in violation of 18 U.S.C. § 922(j). The district court applied a § 2K2.1(b)(4) enhancement because the firearms were stolen; defendant argued the enhancement was double counting. Note 12 to § 2K2.1 says that if (1) the defendant is convicted of certain enumerated offenses, and (2) the base offense level is determined under subsection (a)(7), the court should not apply the subsection (b)(4) increase. “This is because the base offense level takes into account that the firearm … was stolen.” The Second Circuit held that because defendant did not meet the criteria in note 12, he did not qualify for exclusion from the subsection (b)(4) enhancement. Although defendant was convicted under a listed section of the criminal code, 18 U.S.C. § 922(j), his base offense level was determined under subsection (a)(4)(B), not subsection (a)(7). Base offense levels under § 2K2.1 do not necessarily reflect that a firearm was stolen. Subsection (a)(7) is the only base offense level in § 2K2.1 that accounts for the fact that firearms are stolen. U.S. v. Shepardson, 196 F.3d 306 (2d Cir. 1999).
2nd Circuit says defendant knowingly risked serious injury in setting fire knowing apartments were above. (330) Defendant set fire to a flower shop so that he and his co-owner could collect insurance proceeds. The Second Circuit ruled the district court properly sentenced him under § 2K1.4(a)(1) because he knowingly creating a substantial risk of death or serious bodily harm to others and the fire involved the destruction of a dwelling. Defendant was aware that there were occupied apartments above the flower shop ¾ he had previously rented one of these apartments. Defendant (a) used an accelerant to start the fire, (b) set the fire in a building that he knew included occupied apartment dwellings, and (c) set the fire at 7 p.m. on a Saturday evening, a time when the neighboring pizza parlor was very likely to be filled with customers. Defendant had to have known that his actions put many people at grave risk of serious injury. U.S. v. Marji, 158 F.3d 60 (2d Cir. 1998).
2nd Circuit requires § 844(h) arson sentence to be consecutive to all other sentences. (330) Defendant was convicted of five counts after he and his co-defendant set fire to two cars and then attempted to collect insurance proceeds on the destroyed property. The district court imposed six-month concurrent terms for three of the convictions, to run concurrently to a previously imposed 21-month sentence for an unrelated perjury conviction, and then ordered a consecutive five-year sentence for two violations of 18 U.S.C. § 844(h) (using fire to commit a federal felony). The government appealed, arguing that the 844(h) sentences should have been made consecutive to the unrelated 21-month perjury conviction, because § 844(h) requires the sentence to be consecutive to “any other term of imprisonment.” Defendant argued that this language does not apply to fire-related felonies, but only felonies involving the use of explosives. The Second Circuit noted that this argument had recently been rejected in U.S. v. Marji, 158 F.3d 60 (2d Cir. 1998). Here, unlike Marji, the longest underlying sentence was the perjury conviction, which was not part of the same overall criminal scheme. The statute, however, is clear and unambiguous on its face. Thus, defendant’s unrelated perjury sentence could not be concurrent to his five-year sentence under § 844(h). Sicurella v. U.S., 157 F.3d 177 (2d Cir. 1998).
2nd Circuit holds defendant accountable for co-defendant’s possession of machine gun. (330) Defendant pled guilty to possessing ammunition after having been convicted of a felony. A co-defendant was convicted of possessing a machine gun and possessing ammunition after having been convicted of a felony. Section 2K2.1(a)(4)(b) provides for an increased offense level if the offense involved certain types of firearms, including machine guns. The Second Circuit held that the district court did not err in attributing the co-defendant’s possession of a machine gun to defendant. Defendant aided and abetted the co-defendant by carrying ammunition that matched the ammunition found in the machine gun. Defendant could reasonably foresee, based on his possession of the ammunition, that the co-defendant would be carrying the gun. U.S. v. Franklyn, 157 F.3d 90 (2d Cir. 1998).
2nd Circuit uses first-degree murder guideline where arson caused firefighter’s death. (330) Defendant was convicted of arson based on an intentional fire at his retail clothing store. A firefighter lost his life during the fire. Defendant challenged the district court’s use of § 2A1.1, the first-degree murder guideline, because the fireman’s death was not intentionally caused. The Second Circuit upheld the use of § 2A1.1 because it applies to any death that results from the commission of certain felonies. The application notes reference the federal felony-murder statute, 18 U.S.C. § 1111, as suggestive of which felonies are included. Section 1111 defines first-degree murder as a killing committed in the perpetration of, or attempt to perpetrate, any arson. The sentencing court did not err in refusing to depart downward under note 1 to § 2A1.1 on the ground that he did not knowingly or intentionally cause the firefighter’s death. The court was aware of its authority to depart but cited several aggravating factors, including defendant’s scheme to defraud an insurance company, his knowledge that tenants lived above the store, the use of an accelerant, and his decision to set a partly residential building on fire at night. U.S. v. Tocco, 135 F.3d 116 (2d Cir. 1998).
2nd Circuit allows resentencing on drug count after vacating gun count. (330) Defendant successfully moved under 28 U.S.C. § 2255 to vacate his conviction under 18 U.S.C. § 924(c) for “using” a firearm in relation to drug trafficking. However, the district court then increased his sentence on the drug count by two levels under § 2D1.1(b)(1)for “possessing” the firearm. The Second Circuit held that under U.S. v. Gordils, 117 F.3d 99 (2d Cir. 1997), the district court had jurisdiction under § 2255 to resentence defendant on the drug count. Resentencing did not violate the Double Jeopardy clause. It merely put defendant in the same position he would have occupied had he not been convicted under § 924(c) in the first place. Resentencing also did not violate the Due Process Clause. There is no vindictiveness in a resentencing that results in the same sentence that would have been imposed in the absence of a § 924(c) conviction. Moreover, defendant’s resentencing left him with an aggregate sentence four years less than that originally imposed. U.S. v. Mata, 133 F.3d 200 (2d Cir. 1998).
2nd Circuit adopts majority test to decide if gun was possessed “in connection with” another felony. (330) While investigating a robbery at defendant’s apartment, police discovered beneath defendant’s bed a large bag containing an assault rifle, ammunition, and a triple beam scale containing cocaine residue. In the apartment they also found notes describing drug transactions, a police scanner, a bullet-proof vest, a beeper, and a crack vial. Defendant was convicted of being a felon in possession of a firearm. The district court applied § 2K2.1(b)(5) for “possessing a firearm or ammunition in connection with another felony offense.” The Second Circuit, adopting the majority view, held that § 2K2.1(b)(5)’s standard is satisfied if the government proves by a preponderance of the evidence that the firearm served some purpose with respect to the felonious conduct. Where the firearm’s presence is merely coincidental to that conduct, the enhancement is improper. Here, the enhancement was proper here based on the considerable indicia of defendant’s involvement in a drug conspiracy. U.S. v. Spurgeon, 117 F.3d 641 (2d Cir. 1997).
2nd Circuit permits increase for gun under § 2D1.1(b)(1) after § 924(c) conviction reversed. (330) Defendant was convicted of several drug offenses and using a firearm in connection with one of those offense. The Second Circuit vacated the § 924(c)(1) conviction in light of Bailey v. U.S., 516 U.S. 137 (1995) and remanded for resentencing on the remaining counts. The court said that at resentencing, the district court may consider whether to enhance defendant’s offense level under § 2D1.1(b)(1) for possession of a dangerous weapon in connection with a drug trafficking offense. A sentencing judge can, on remand, increase the sentence on a specific count where the original sentence was imposed as part of a “package” that included a mandatory consecutive sentence that was later found to be invalid. U.S. v. Bermudez, 82 F.3d 548 (2d Cir. 1996).
2nd Circuit says increases for multiple guns and knowledge of use in another felony are not double counting. (330) Defendant, a licensed firearms dealer, sold more than 100 guns to three men who resold the guns to drug traffickers in New York City. The Second Circuit held that a § 2K2.1(b)(1)(F) enhancement for an offense involving more than 50 guns and a § 2K2.1(b)(5) enhancement for transferring the guns knowing they would be used in another felony was not improper double counting. Neither enhancement indicates that only the greater of these two adjustments is to be used. A district court does not engage in double counting when it considers a single act that is relevant to two dimensions of the guidelines analysis. The “more than 50 guns” enhancement related to the characteristics of the offense. The “reason to believe” enhancement related to characteristics of the offender. U.S. v. Martin, 78 F.3d 808 (2d Cir. 1996).
2nd Circuit agrees that defendant knew guns he sold would be used in another felony. (330) Defendant was a licensed firearms dealer in a small town in New Hampshire. He was only permitted to sell guns to New Hampshire residents. Over several months, he sold more than 100 guns to three men, at least one of whom was from New York City. These customers brought the guns back to New York City and illegally sold them to drug traffickers. The Second Circuit affirmed a § 2K2.1(b)(5) enhancement for selling the guns knowing they would be used in another felony. The guns purchased by the three men, one of whom defendant knew was from New York City, were handguns, mainly low‑grade, inexpensive, semi‑automatic weapons. Many of them were the same easily concealable make and model. Defendant made false entries in the firearms records he was required to keep, in order to conceal the transactions. The number and types of weapons and the unusual circumstances indicated that the guns were being acquired for resale. U.S. v. Martin, 78 F.3d 808 (2d Cir. 1996).
2nd Circuit says possession of sawed-off shotgun fell within heartland of § 2K2.1. (330) Defendant pled guilty to unlawful possession of a firearm by a felon. The gun he possessed was a sawed-off shotgun. At sentencing he requested a downward departure, claiming he altered and kept the gun so that he could use it in committing suicide. The Second Circuit upheld the court’s refusal to depart, agreeing that defendant’s conduct fell within the heartland of § 2K2.1. Defendant had provided a written sworn statement to agents in which he admitted possessing the shotgun and cutting off the barrel even though he knew it was illegal. He said he did not know why he had done it. The district court was entitled to accept this sworn statement over defendant’s last minute sentencing claims. U.S. v. Ruggles, 70 F.3d 262 (2d Cir. 1995).
2nd Circuit bars using current PSR to decide whether prior offense is crime of violence. (330) Defendant was convicted of being a felon in possession of a firearm. He had previously pled nolo contendere to a state charge of intimidation based on bigotry or bias. The district court found this prior offense was a crime of violence and increased his base offense level under section 2K2.1(a)(4)(A). The Second Circuit reversed, ruling that the district court should not have relied on defendant’s current PSR to make the crime of violence determination. The state statute covered conduct that did not constitute a crime of violence—harassment as well as intimidation, and damage to real or personal property as well as physical contact. Under Taylor v. U.S., 495 U.S. 575 (1990), a court may examine the charging instrument and jury instructions to determine whether the conduct underlying the conviction was a crime of violence. However, these were not helpful here. The court could not rely on the facts recited in the current presentence report, since this would be a surrogate for the elaborate fact-finding process criticized in Taylor. Since no easily produced and evaluated court documents were available to determine whether defendant’s offense was a crime of violence, the § 2K2.1(a) (4)(A) increase was improper. U.S. v. Palmer, 68 F.3d 52 (2d Cir. 1995).
2nd Circuit says Ku Klux Klan member knew timed pipe bomb would be used in connection with another felony. (330) Defendant, a member of the Ku Klux Klan, attempted to purchase a pipe bomb with a timer from an undercover agent. The Second Circuit approved a § 2K2.1 (b)(5) enhancement based on defendant’s knowledge that the firearm would be used or possessed in connection with another felony. In taped conversations, defendant stated that he wanted something that would go through a wall and take out five to 12 feet, or maybe go through a roof, and that the device had to be timed. The district court was entitled to reject defendant’s explanation that he planned to detonate the bomb in the woods for fun. U.S. v. Dodge, 61 F.3d 142 (2d Cir. 1995).
2nd Circuit upholds lack of scienter requirement for obliterated serial number enhancement. (330) Defendant was convicted of being a felon in possession of a firearm. The weapon that defendant was carrying had an obliterated serial number. Defendant challenged § 2K2.1(b) (4), which requires an enhancement if the firearm was stolen or had an altered or obliterated serial number, regardless of whether the defendant knew or had reason to believe that the firearm was stolen or had an altered or obliterated serial number. The Second Circuit, relying on U.S. v. Griffiths, 41 F.3d 844 (2d Cir. 1994), held that § 2K2.1(b)(4)’s strict liability does not violate due process. Although Griffiths concerned a stolen firearm rather than a firearm with an obliterated serial number, it still controlled. U.S. v. Williams, 49 F.3d 92 (2d Cir. 1995).
2nd Circuit upholds lack of scienter requirement for stolen firearm enhancement. (330) Defendant was convicted of possessing a firearm as an illegal alien. He received a § 2K2.1(b)(4) enhancement for possessing a stolen gun. Under circuit law, § 2K2.1(b)(4) does not contain a scienter requirement, so that the government was not required to prove that defendant knew or had reason to believe that the gun was stolen. The Second Circuit upheld the constitutionality of the lack of scienter requirement in § 2K2.1(b)(4). The government has a legitimate interest in punishing possession of a stolen firearm and placing the burden on one who receives a firearm to ensure that the possession is lawful. U.S. v. Griffiths, 41 F.3d 844 (2d Cir. 1994).
2nd Circuit says defendant must know he possesses dangerous device to receive firearm enhancement. (330) Defendant was convicted of firearms charges stemming from his possession of several silencers and machine gun receivers. He challenged an enhancement under section 2K2.1(b)(1) for an offense involving five to seven firearms on the grounds that he believed two of the silencers were fake. He argued that the guidelines incorporate the scienter requirement of a provision of the National Firearm Act, prohibiting possession of an unregistered firearm. The 2nd Circuit agreed. Application note 9 to section 2K2.1 provides that only those firearms that were unlawfully possessed should be counted. The words “unlawfully possessed” refers back to the scienter requirement in the Act. For a defendant to know he possesses a firearm he must know that the object he possesses is a “dangerous device” that would alert one to the likelihood of regulation. U.S. v. Corso, 20 F.3d 521 (2nd Cir. 1994).
2nd Circuit says consideration of drugs underlying firearms count would not be double counting. (330) Defendant was convicted of drug charges stemming from his sale of crack cocaine in February 1992, and of carrying a firearm in connection with a drug trafficking offense, stemming from a November 1991 raid on an apartment. Defendant argued that it would constitute double counting to include, in the calculation of his base offense level for the drug charges, the drugs underlying the firearms charge. The 2nd Circuit rejected this argument. Had defendant been convicted of drug charges for the November conduct, the district court would have been obligated to consider these offenses separately. U.S. v. Darmand, 3 F.3d 1578 (2nd Cir. 1993).
2nd Circuit says considering use of gun in instant offense was not double counting. (330) As a career offender, defendant received a 262-month sentence for his drug crimes, and a mandatory consecutive 60-month term under 18 U.S.C. section 924(c) for using a firearm in the underlying drug offense. Defendant argued that the same criminal acts that categorized him as a career offender were taken into account in the firearm sentence. The 2nd Circuit found no double counting. While defendant’s use of a gun during the drug crimes formed the basis of his conviction under section 924(c), it was not a factor in classifying him as a career offender. Note 2 to section 2K2.4 prohibits an enhancement to a drug sentence based on use of a firearm where the defendant also receives a sentence under section 924(c) for use of a firearm. Accordingly, defendant did not receive such an enhancement. Imposing a consecutive sentence for 924(c) did not violate the double jeopardy clause. Congress clearly authorized cumulative punishment under the two statutes. U.S. v. Howard, 998 F.2d 42 (2nd Cir. 1993).
2nd Circuit upholds consecutive firearm sentence for career offender. (330) Defendant was sentenced as a career offender for drug crimes and, based on his use of a firearm, also received a consecutive 60-month sentence under 18 U.S.C. section 924(c)(1). Section 924(c)(1) applies to anyone who, during and in relation to any crime of violence or drug trafficking crime carries or uses a firearm. Defendant argued that he was improperly sentenced under section 924(c)(1) because he was not sentenced to imprisonment for a crime of violence or a drug trafficking crime, but rather was sentenced under the schedule of penalties provided by the career offender guideline. The 2nd Circuit rejected this argument. Defendant was not convicted of the “crime” of being a career offender. He was convicted of, and sentenced for, underlying drug crimes. The career offender guideline served only to set forth the parameters for determining defendant’s sentence for the drug crimes. U.S. v. Howard, 998 F.2d 42 (2nd Cir. 1993).
2nd Circuit does not require knowledge that firearm was stolen for section 2K2.1(b)(2) enhancement. (330) Defendant was convicted of possessing an unregistered firearm, and received an enhancement under section 2K2.1(b)(2) because the firearm was stolen. The 2nd Circuit affirmed, rejecting the contention that under the rule of lenity, the enhancement required a finding that defendant knew the firearm was stolen. First, the language of section 2K2.1(b)(1) (1989) is not ambiguous and does not contain a knowledge requirement. Second, the evolution of section 2K2 indicates that the omission of such a requirement was intentional. U.S. v. Litchfield, 986 F.2d 21 (2nd Cir. 1993).
2nd Circuit says enhancement for use of firearm in drug offense was double-counting. (330) Defendant was convicted of two unlawful firearm possession offenses. Both of the applicable firearm guidelines, section 2K2.1 and section 2K2.2 (1988), provide that if the firearm was used in connection with another offense, the guideline for the other offense should be used if it would result in a higher offense level. The district court found that defendant had used the firearms in connection with a narcotics conspiracy, and sentenced him under section 2D1.1. The 2nd Circuit rejected as double counting an enhancement under section 2D1.1(b)(1) for carrying a firearm during a drug trafficking crime. The narcotics base offense level was applied only through cross-references designed to ensure that the offense level for the weapons offenses adequately reflected the seriousness of the weapons offenses. To add an increment for possessing weapons was tantamount to increasing the sentence because defendant possessed weapons in the course of possessing weapons. U.S. v. Concepcion, 983 F.2d 369 (2nd Cir. 1992).
2nd Circuit affirms enhancement based on acquitted crimes but suggests downward departure. (330) Defendant was acquitted of several narcotics offenses and convicted of two unlawful firearm possession offenses. Both firearm guidelines, section 2K2.1 and section 2K2.2 (1988), provide that if the firearm was used in connection with another offense, the guideline for the other offense should be applied if it would result in a higher offense level. The district court found that defendant used the firearms in connection with a narcotics conspiracy, and applied the drug offense level under section 2D1.1. The 2nd Circuit held this was proper, even though defendant had been acquitted of the drug offenses. An acquittal does not establish the untruth of the evidence, and disputed facts at sentencing need only be established by the preponderance. Nonetheless, the court doubted that the Commission intended so “astronomical” an increase (offense level tripled, guideline range increased from 12-18 months to 210 to 262 months), especially with respect to acquitted conduct. Thus, it concluded that the court had the power to depart downward under section 5K2.0. U.S. v. Concepcion, 983 F.2d 369 (2nd Cir. 1992).
2nd Circuit upholds sentencing defendant under section 2K2.2 rather than 2K2.1. (330) Defendant was convicted of receiving and possessing a sawed-off rifle, in violation of 26 U.S.C. section 5861(d). The 2nd Circuit affirmed the district court’s decision to sentence defendant under guideline section 2K2.2, the provision applicable to unlawful trafficking offenses, rather than section 2K2.1, the provision applicable to unlawful possession offenses. The pre-November 1990 version of section 2K2.1(c)(1) directed a court to apply section 2K2.2 if the offense involved the distribution of a firearm or possession with intent to distribute and the resulting offense level would be higher. Although defendant was only charged with possession of a sawed-off rifle, because defendant sold the rifle to undercover agents, he clearly possessed it with the intent to distribute. Moreover, defendant’s base offense level calculated under section 2K2.2 was greater than it would have been under section 2K2.1. U.S. v. Collins, 957 F.2d 72 (2nd Cir. 1992).
2nd Circuit upholds enhanced sentence under 18 U.S.C. section 924(c) for second of two simultaneous robbery convictions. (330) After committing two armed bank robberies, defendant was convicted of various charges, including two counts of using a firearm during the commission of a crime of violence, 18 U.S.C. section 924(c). He received a five year sentence for the first 924(c) conviction and an enhanced 20 year sentence for the second 924(c) conviction. The 2nd Circuit affirmed that section 924(c) provides for an enhanced sentence for the second of two simultaneous convictions under the statute. It clearly provides that for a “second or subsequent” conviction under section 924(c), an offender shall receive a 20 year sentence. An analogy cannot be drawn to the career offender provisions of the guidelines, which require convictions separated in time to enhance a sentence. The language in guideline section 4B1.1 is different and plainly requires that the conviction for which an enhanced penalty is imposed occur after the other convictions. U.S. v. Bernier, 954 F.2d 818 (2nd Cir. 1992).
2nd Circuit upholds treating firearm count as drug count. (330) Defendant was convicted of drug charges. Shortly thereafter, he was convicted of being a felon in possession of a firearm based upon his arrest while carrying a weapon en route to purchase drugs. The two indictments were consolidated for sentencing. In connection with the firearms offense, the district judge followed guideline section 2K2.1(c)(2), which provides that where a defendant possesses a weapon in connection with another offense, the guideline for the other offense applies if it results in a higher offense level. Since the drug guideline, section 2D1.1(c), resulted in a higher offense level, the judge treated the weapons offense as a drug offense. The judge then grouped the weapons offense with the other drug offenses under guideline section 3D1.2(d), and determined the base offense level by aggregating the drug quantities involved in the drug counts and the weapons count. The 2nd Circuit affirmed, ruling that the gun count was properly treated as a drug count, and then properly grouped with the other drug counts. U.S. v. Patterson, 947 F.2d 635 (2nd Cir. 1991).
2nd Circuit affirms finding that defendant used weapon in dealing drugs. (330) Defendant was convicted of being a felon in possession of a firearm. The district court departed upward based upon its conclusion that defendant had used the weapon in dealing drugs. The 2nd Circuit found this conclusion was not clearly erroneous. Defendant admitted he had the gun for protection. In addition to the gun, the police found in his apartment more than $35,000 in cash, a portable telephone, a beeper, and a triple beam scale. This amply supported the conclusion that the gun was used in drug trafficking. U.S. v. Hernandez, 941 F.2d 133 (2nd Cir. 1991).
2nd Circuit finds no double counting in using prior conviction in offense level and criminal history. (330) Defendant was convicted of unlawfully dealing in firearms. His offense level was increased under § 2K2.2(c) for his prior felony conviction, and his criminal history score was increased under § 4A1.1(b) for the same prior. The 2nd Circuit rejected defendant’s contention that this constituted impermissible double counting. Offense level calculations focus principally on the offense of conviction. Section 2K2.1(a)(1) increases the offense level when the unlawful sale of weapons was by a felon, recognizing that the sale of firearms is a more serious offense when committed by a person who in the past has proven dangerous or irresponsible. Calculation of a defendant’s criminal history focuses on the deeds and experiences of the particular defendant. A defendant with a past criminal record is generally more culpable than a first offender and deserving of greater punishment. U.S. v. Blakney, 941 F.2d 114 (2nd Cir. 1991).
2nd Circuit holds that possession of a silencer and possession of a semi-automatic weapon should not be grouped together. (330) The 2nd Circuit rejected defendant’s argument that his conviction for possession of a silencer and his conviction for possession of a semi-automatic pistol should be grouped together. The court found that the two offenses did not involve substantially the same harm, since a silencer transforms an unmuffled gun into a far more threatening weapon. The 2nd Circuit also rejected defendant’s argument that his two convictions for escape should be grouped together. Since the two offenses occurred on two separate occasions, separated by three months, they merited separate, cumulative punishment. U.S. v. Bakhtiari, 913 F.2d 1053 (2nd Cir. 1990).
2nd Circuit remands case for district court to determine whether defendant obliterated serial number on silencer. (330) Defendant was convicted of possession of a silencer, which he claimed to have designed himself. Defendant contended that his offense level was improperly increased by one under guideline § 2K2.2 for possessing a silencer with an “obliterated serial number.” The 2nd Circuit agreed, since there was no evidence that the silencer ever had a serial number or that defendant had ever obliterated it. The case was remanded for the district court to determine whether the silencer ever had a serial number and whether defendant removed it. U.S. v. Bakhtiari, 913 F.2d 1053 (2nd Cir. 1990).
2nd Circuit reverses upward departure in firearms case. (330) Defendant was convicted of conspiracy to deal in firearms without a license after he purchased 177 firearms and resold them without a license to persons whom he knew could not lawfully possess such firearms. The district court departed upward from the sentencing guidelines on the ground of endangerment to public health and safety under guideline § 5K2.14. The 2nd Circuit reversed the departure, noting that the number of weapons sold was accounted for when the defendant received a five level enhancement under § 2K2.3(b)(1)(E). The court also found that the type of firearms was adequately considered by the guidelines. On the other hand, the court found that a departure could be justified on the ground that defendant knew that some of his customers were drug traffickers and others who would use the firearms in their criminal activities. This basis for departure however, was limited to only a few of the firearms defendant purchased and sold. The case was remanded for resentencing. U.S. v. Schular, 907 F.2d 294 (2nd Cir. 1990).
3rd Circuit says defendant who brandished gun in bar committed simple assault on bar patrons. (330) While extremely intoxicated, defendant walked around a bar brandishing a gun. He pled nolo contendere to being a felon in possession of a firearm. The district court increased his sentence under § 2K2.1(b)(6)(B) for using or possessing the firearm “in connection with another felony offense.” It found that defendant committed simple assault, in violation of 18 Pa. Cons. Stat. Ann. § 2701(a)(3), by placing patrons in the bar in fear of imminent bodily injury with his actions. The court noted that although the bar’s surveillance video did not have audio, it showed the menacing nature of defendant’s actions. Moreover, the court listened to recordings of the 911 calls placed that night from the bar. Those recordings included one caller affirming that defendant was threatening people in the bar. The Third Circuit upheld the enhancement. U.S. v. Harris, __ F.3d __ (3d Cir. May 9, 2014) No. 13-1442.
3rd Circuit finds misdemeanor flight conviction was crime of violence. (330) Defendant received an increased offense level under § 2K2.1(a)(2) based in part on the district court’s finding that his Pennsylvania misdemeanor conviction for vehicular flight was a crime of violence. Using a modified categorical approach, the court found that the factual conduct agreed to by defendant in his plea colloquy supported a crime of violence finding. The Third Circuit held that the district court erred in applying the modified categorical approach, but that the error was harmless. The modified categorical approach was unnecessary because aerell of the conduct listed in the statute involved the same type of intentional disobedience of a command from law enforcement while in a vehicle. The error was harmless because defendant’s misdemeanor flight conviction qualified categorically as a crime of violence. See Sykes v. U.S., 131 S.Ct. 2267 (2011) (holding that violation of Indiana vehicular flight law was a violent felony under the ACCA). Although the statute here set forth both a misdemeanor and a felony, this distinction did not matter, because the misdemeanor provision prohibited willfully fleeing from law enforcement in a vehicle. Thus, it involved the same risks discussed by Sykes. U.S. v. Jones, 740 F.3d 127 (3d Cir. 2014).
3rd Circuit finds burglary in which defendant stole gun was “another felony offense.” (330) Defendant burglarized a licensed gun shop and stole 30 firearms. He pled guilty to a variety of firearms offenses. Guideline § 2K2.1(b)(6) provides for a four-level enhancement if the defendant “used or possessed any firearm or ammunition in connection with another felony offense.” In previous cases, the Third Circuit held that § 2K2.1(b)(6) does not apply when the predicate offense is burglary of the firearms. However, in 2006, Amendment 691 removed Application Note 15, which stated that “another felony offense” refers “to offenses other than explosives or firearms possession or trafficking offense.” A new Application Note 14 states, in part, that the enhancement applies to “a defendant, who, in the course of a burglary, finds and takes a firearm, even if the defendant did not engage in any other conduct with that firearm during the course of the burglary….” The Third Circuit held that under the amended commentary, the burglary during which defendant stole the firearms constituted “another felony offense” for sentencing purposes. Amendment 691 was binding; it was not plainly erroneous or inconsistent with § 2K2.1(b)(6). U.S. v. Keller, 666 F.3d 103 (3d Cir. 2011).
3rd Circuit holds Pennsylvania conviction for making terroristic threats was a crime of violence. (330) Defendant pled guilty to being a felon in possession of a firearm. He received a base offense level of 24 under § 2K2.1(a)(2), based in part on the district court’s finding that his Pennsylvania conviction for making terroristic threats, in violation of 18 Pa. Const. Stat. § 2706, qualified as a crime of violence. The statutory offense of making terroristic threats in § 2706 is broader than the definition of a crime of violence, because it includes crimes that could be committing by making threats against another person’s property. Nevertheless, applying the “modified categorical approach,” the district court found that the charging document and guilty plea colloquy showed that defendant pled guilty to threatening to commit a crime of violence with intent to terrorize another. The charging document also specified that the predicate “crime of violence” was “criminal homicide.” On appeal, the Third Circuit agreed that defendant was convicted of a crime of violence. A person cannot threaten to terrorize another with reckless intent. U.S. v. Mahone, 662 F.3d 651 (3rd Cir. 2011).
3rd Circuit rejects increase where no evidence that gun in trunk of car facilitated possession of drugs. (330) During a traffic stop, state troopers found $9,000 in cash in the glove compartment of defendant’s car, a small amount of marijuana, and a handgun. They also found a revolver inside a backpack in the trunk. Defendant pled guilty to being a felon in possession of a gun, in this case the gun found in the backpack in the trunk, but not to the gun in the glove compartment. Defendant’s girlfriend testified that she was the owner of the gun in the glove compartment, and the court found that the gun did indeed belong to her. The Third Circuit rejected a § 2K2.1(b)(6) enhancement for possessing a firearm in connection with another felony offense. Other circuits have held that in a simple possession case, the sentencing court must make a specific finding that the firearm facilitated or had the potential of facilitating possession of the drugs. Here, the sparse facts of record did not support the conclusion that defendant’s possession of the revolver located in a backpack in the trunk of his car emboldened him to engage in the crime of marijuana possession, or served to protect the marijuana. U.S. v. West, 643 F.3d 102 (3d Cir. 2011).
3rd Circuit rules arrest five months later was not relevant conduct. (330) In February 2007, state troopers found $9,000 in cash in the glove compartment of defendant’s car, a small amount of marijuana, and a handgun. They also found a revolver inside a backpack in the trunk. In July 2007, during a fire-code inspection of defendant’s girlfriend’s apartment, a local fire marshal saw a handgun next to the bed where defendant was sleeping. Defendant pled guilty to being a felon in possession of a firearm. The Third Circuit held that the district court erred in finding that the July incident was relevant conduct for purposes of sentencing him for the February felon in possession incident. The five-month interval between the offenses was not of such duration as to render the events of July too remote from the events of February. However, where the time between offenses is not strongly supportive of finding relevant conduct, the offenses must show significant similarity and regularity. The February and July offenses were not sufficiently similar or regular to satisfy the relevant conduct standard. Although both incidents involved a stolen firearm in relatively close proximity to cash and a small quantity of marijuana, these facts alone were not sufficient to show more than a pair of similar but isolated and unrelated events. U.S. v. West, 643 F.3d 102 (3d Cir. 2011).
3rd Circuit says cross-referenced firearm conduct must be relevant conduct. (330) Defendant pled guilty to being a felon in possession of a firearm. The district court applied the cross-reference in § 2K2.1(c)(1) for using or possessing the firearm in connection with another felony offense—an extortion defendant committed 27 months earlier. The Third Circuit held that the conduct that can be cross-referenced in § 2K2.1(c)(1) is limited to relevant conduct under § 1B1.3. The extortion offense did not qualify as relevant conduct under § 1B1.3(a)(2) because the offenses were not part of the same course of conduct or common scheme. The 27-month time interval between defendant’s extortion offense and the firearm offense was substantial, and the similarity between the two offenses was very weak. Moreover, the regularity inquiry was not satisfied on these facts. The court never explicitly found that defendant possessed the gun throughout the 27-month period, and even if defendant’s possession of the gun was continuous, that would not be sufficient to automatically make two offenses relevant conduct. U.S. v. Kulick, 629 F.3d 165 (3d Cir. 2010).
3rd Circuit finds criminal information insufficient to show that assault was crime of violence. (330) Defendant received an enhanced offense level under § 2K2.1(a)(4)(A) based on his 2002 Pennsylvania simple assault conviction, which the district court found was a crime of violence under § 4B1.2(a)(2). An intentional or knowing violation of the Pennsylvania statute was a crime of violence, but a reckless violation of the statute was not. The government asked the district court to find that the conviction was a crime of violence based only on the criminal information. The Third Circuit held that that document was insufficient to establish that defendant acted knowingly or intentionally. The information largely tracked the statutory language in § 270 (a)(1), thereby charging defendant with different types of simple assault. Although the information’s allegation that defendant “struck and/or choked his victim” strongly suggested that defendant’s conduct was intentional and knowing, the court could not conclusively determine, based on the information alone, whether defendant actually admitted to acting intentionally or knowingly. U.S. v. Johnson, 587 F.3d 203 (3d Cir. 2009).
3rd Circuit says intentional Pennsylvania simple assault is crime of violence. (330) Defendant’s offense level was increased under § 2K2.1(a) (4)(A) based on his 2002 Pennsylvania simple assault conviction, which the district court found was a crime of violence under § 4B1.2(a)(2). Defendant argued that the assault conviction did not qualify as a crime of violence in light of Begay v. U.S., 553 U.S. 137 (2008). The Third Circuit ruled that an intentional or knowing violation of the Pennsylvania assault statute is a crime of violence under § 4B1.2(a)(2), while a reckless violation of the statute was not. The requirements articulated by Begay – that the defendant’s crime present a degree of risk similar to that presented by the enumerated crimes and also be similar in kind to those offenses – were readily satisfied in this case. Simple assault is similar in kind to the enumerated crimes if it is committed intentionally or knowingly. And there was no doubt that simple assault is at least as violent and aggressive as the enumerated crimes. Thus, defendant was subject to § 2K2.1(A)(4)(a) if the evidence authorized by Shepard v. U.S., 544 U.S. 13 (2005) established that he admitted to acting knowingly or intentionally. U.S. v. Johnson, 587 F.3d 203 (3d Cir. 2009).
3rd Circuit says maximum sentence for § 924(c) gun conviction is life imprisonment. (330) Because defendant was a career offender under § 4B1.1, his Guidelines range of 360 months to life was based on his § 924(c) conviction (use of a firearm during or in relation to a crime of violence). Defendant argued that because he was sentenced under § 924(c)(1) (A)(ii) (which applies when a gun is brandished in connection with a crime of violence), and because the issue of whether he actually brandished the gun was not presented to the jury, his sentence was improper under Apprendi v. New Jersey, 530 U.S 466 (2000). The Third Circuit upheld the life sentence. Defendant’s suggested range under § 4B1.1 was based on a generic § 924(c) conviction, not a conviction for specifically brandishing a gun. A better argument would be that a § 924(c) conviction does not carry a statutory maximum of life imprisonment, because the relevant portion of § 924(c) does not contain an express statutory maximum. However, the panel agreed with other Circuits holding that the maximum sentence for a § 924(c)(1)(A) conviction is life imprisonment. U.S. v. Shabazz, 564 F.3d 280 (3d Cir. 2009).
3rd Circuit holds that increases for possession of gun in relation to another felony and for assaulting police officer during flight was not improper. (330) After a pedestrian complained to patrol officers that defendant and another man had attempted to rob him at gunpoint, the officers pursued and apprehended defendant. Defendant pled guilty to being a felon in possession of a firearm. At an evidentiary hearing, one of the officers testified that during the chase, defendant pointed the gun at him and began to pull the trigger during the chase. The district court applied a § 2K2.1(b)(5) for possession of a firearm in relation to another felony (attempted robbery) and a six-level increase under § 3A1.2(c)(1) for creating a substantial risk of serious bodily injury by assaulting a law enforcement officer during the flight from the offense. The Third Circuit affirmed, finding no double counting problem. Each of the enhancements involved conduct which the other did not. Section 2K2.1 involves the use of a firearm, whereas § 3A1.2 involve a law enforcement officer victim. Thus, § 2K2.1 is a conduct-related enhancement, while § 3A1.2 is a victim-related enhancement. U.S. v. Fisher, 502 F.3d 293 (3d Cir. 2007).
3rd Circuit finds 47-year sentence for attempted importation of missiles reasonable. (330) Defendant was convicted of five charges related to his role in the attempted importation of shoulder-fired, surface to air missiles. He believed he was selling the missiles to a terrorist group that intended to use the weapons to shoot down civilian airliners in the U.S. The advisory guidelines recommended life imprisonment, and the district court imposed a sentence of 47 years. The statutory maximum for the offenses of conviction was 67 years in prison. The Third Circuit held that the 47-year sentence was reasonable. Although defendant admitted the seriousness of his offenses, he continued to assert entrapment as a mitigating factor. While the court would have been entitled to consider at sentencing the government’s “pervasive role in this case,” even if it did not amount to a due process violation or entrapment, in the end, the court and the jury were not persuaded by defendant’s defense. The appellate court refused to second guess this contention. U.S. v. Lakhani, 480 F.3d 171 (3d Cir. 2007).
3rd Circuit holds that gun obtained in drug exchange was possessed in connection with “another felony.” (330) Defendant admitted to police that a loaded handgun found in his car belonged to him. He also informed the police that he had obtained the gun in 2002 through a drug exchange. He had given an unknown person crack cocaine, and had received the gun in return. Defendant pled guilty to being a felon in possession of a firearm. The district court applied a § 2K2.1(b)(5) increase for possessing the firearm in connection with another felony, in this case the drugs for gun exchange. The Third Circuit affirmed. The panel distilled from prior case law a two-part standard for determining whether an offense committed in connection with possession of a firearm may support the § 2K2.1 (b)(5) increase. First, the predicate offense and the firearms possession crime must each have an element that was not shared by the other. Second, something more than mere possession of the firearm must have been an integral aspect of the predicate offense. If both these conditions apply, then the enhancement applies. The offenses satisfied the first part of the test. Dispensation of a controlled substance is an element of drug distribution but not of firearms possession; possession of a firearm is an element of firearms possession but not of drug distribution. The offenses also satisfied the second part of the standard. The offense of drug distribution involves only the distribution of a controlled substance, it does not require an exchange of something of value. Therefore, defendant’s possession of the gun was not an integral aspect of the offense. Finally, the gun was possessed “in connection with” the drug distribution offense. U.S. v. Navarro, 476 F.3d 188 (3d Cir. 2007).
3rd Circuit overrules Kikumura and finds preponderance standard of proof applies to facts relevant to sentencing. (330) Defendant pled guilty to being a felon in possession of a firearm after he was involved in a fight in which shots were fired. The district court found that the fight constituted an aggravated assault under state law, and that the offense had been committed in connection with the firearm possession. This resulted in a four-level enhancement under § 2K2.1(b)(5). The Third Circuit held that the district court properly applied a preponderance of the evidence standard to the facts relevant to the guidelines, including the finding that defendant had committed an aggravated assault. In U.S. v. Kikumura, 918 F.2d 1084 (3d Cir. 1990), the Third Circuit held that certain sentencing enhancements that significantly increase the recommended sentence and “can fairly be characterized as ‘a tail which wags the dog of the substantive offense’“ must be proved by clear and convincing evidence. Since the jurisdictional basis of this holding has been disavowed by the Supreme Court and plainly conflicts with Booker, the court overruled this aspect of Kikumura. U.S. v. Grier, 475 F.3d 556 (3d Cir. 2007) (en banc).
3rd Circuit upholds finding that defendant committed aggravated assault. (210) During defendant’s fight with Navarro, a shot was fired. The two men separated, with defendant holding the gun. Neither had been struck by the bullet or sustained serious injury. Defendant pointed the gun at Navarro, but then pointed the gun upward and fired a single shot. Both men then left the scene. Defendant was convicted of being a felon in possession of a firearm. The district court found that the confrontation with Navarro constituted an aggravated assault, and increased his offense level under § 2K2.1(b)(5). The Third Circuit held that the finding that defendant committed aggravated assault was supported by a preponderance of the evidence. Navarro testified that he did not enter the fight with any weapons. The firearm was produced in some manner during the altercation, and soon thereafter, the firearm discharged. The precise circumstances of the fight were matters of reasonable speculation, but the testimony from Navarro could reasonably be interpreted as showing that defendant purposely pulled the firearm out during the fight and fired at Navarro with the intent to cause serious bodily harm. This supported the aggravated assault finding. U.S. v. Grier, 475 F.3d 556 (3d Cir. 2007) (en banc).
3rd Circuit rejects constitutional challenges to mandatory consecutive sentencing scheme for use of gun during crime of violence. (330) Defendant was convicted of numerous firearms, robbery and drug charges, and received consecutive mandatory minimum sentences totaling 55 years of imprisonment for three violations of 18 U.S.C. § 924(c). The Third Circuit affirmed the 55-year sentence, rejecting defendant’s claim that it violated Due Process or constituted cruel and unusual punishment. Congress had a rational basis for treating second or subsequent offenses under § 924(c)(1) more harshly than first offenses and for imposing severe mandatory punishments for such offenses. The 55-year sentence did not violate our evolving standards of decency, but rather, represented Congress’s attempt to address the serious societal problem of the use of firearms in connection with violent crimes and in connection with drug trafficking. U.S. v. Walker, 473 F.3d 71 (3d Cir. 2007).
3rd Circuit holds that judge’s reference to gun violence did not make felon in possession sentence unreasonable. (330) Defendant was convicted of being a felon in possession of a firearm. In imposing a 63-month sentence, the court referred to a recent shooting and discussed the evils of gun violence in general. Defendant argued that because his conviction involved neither gun violence toward innocence bystanders nor the death of a police officer, the recent news reports and the judge’s personal feelings toward gun violence were irrelevant to his sentencing and were not proper considerations under 18 U.S.C. § 3553(a). The Third Circuit held that the judge’s comments did not make the sentence imposed unreasonable. Gun violence is a serious problem in the U.S., and the possession by a convicted felon of a nine-millimeter handgun loaded with hollow-point and “full metal jacket” bullets was certainly related to other instances of gun violence, regardless of whether defendant himself used or intended to use the weapon against a person. The judge comments were designed to explain “the seriousness of the offense.” 18 U.S.C. § 3553(a)(2)(A). U.S. v. Williams, 458 F.3d 312 (3d Cir. 2006).
3rd Circuit upholds use of prior convictions to increase statutory minimum penalty. (330) Defendant was convicted of being a felon in possession of a firearm and possession of controlled substances. Because his prior convictions for drug offenses and a violent crime increased the statutory minimum penalty for his firearm offenses pursuant to 18 U.S.C. § 924(e), defendant argued that those offenses should have been charged in the indictment and proved to the jury beyond a reasonable doubt. The Third Circuit found no error. First, the government did charge defendant’s prior offenses in the indictment. Second, under Almendarez-Torres v. U.S., 523 U.S. 224 (1998), prior convictions that increase the statutory maximum for an offense are not elements of the offense and thus may be determined by the district court by a preponderance of the evidence. This holding was preserved in Apprendi v. New Jersey, 530 U.S. 466 (2000), and survived Booker and its antecedents. U.S. v. Coleman, 451 F.3d 154 (3d Cir. 2006).
3rd Circuit finds criminal mischief was “another felony offense” distinct from possession of bomb. (330) Defendant was a member of a drug ring that decided to “get even” with a man by placing a bomb under the fuel tank of the man’s truck. Although defendant did not build the bomb, he did place the bomb under the truck. However, the bomb failed to detonate due to a malfunction of the fuse. Defendant was convicted of possessing an unregistered destructive device. The district court enhanced defendant’s offense level under § 2K2.1(b)(5) for “us[ing] or possess[ing] any firearm … in connection with another felony offense.” Defendant argued that the conduct on which the adjustment was based, the attempted bombing of the victim’s truck, was the same conduct that formed the basis for the underlying counts to which he had pled guilty. Under U.S. v. Fenton, 309 F.3d 825 (3d Cir. 2002), § 2K2.1(b)(5) requires “another felony offense” that is separate and apart from the base offense. The Third Circuit affirmed the increase, since there was no question that criminal mischief was a crime distinct from the crime of possession of unregistered explosives. The former requires proof of damage or endangerment to person or property, which is not required for the latter; the latter requires proof of non-registration of a firearm. U.S. v. Lloyd, 361 F.3d 197 (3d Cir. 2004).
3rd Circuit finds sufficient relationship between gun and car theft to support increase. (330) Following a report of a stolen car and a high-speed chase, defendant was stopped, arrested, and found to be carrying a firearm and ammunition. He was convicted of being a felon in possession of a firearm. The district court applied a four-level increase under § 2K2.1(b)(5) for possessing a firearm “in connection with another felony offense,” in this case the offense of car theft. Defendant argued that he did not possess the firearm “in connection with” the car theft, noting that it was not loaded and was never used during or in relation to the theft.. The Third Circuit found a sufficient relationship between defendant’s possession of a firearm and his theft of the car to warrant the § 2K2.1(b)(5) increase. Defendant possessed the unloaded firearm when he was arrested, the weapon was an intimidating sight even when unloaded, defendant stole the car on a residential street where he might have been approached, and his mindset was adverse to being apprehended. The most natural inference was that he was carrying the weapon in order to facilitate the theft. While there were other possible inferences, the district court’s inference was perfectly reasonable. U.S. v. DeJesus, 347 F.3d 500 (3d Cir. 2003).
3rd Circuit holds that state crime identical and coterminous with federal crime is not “another felony offense.” (330) Defendant burglarized a sporting goods store and stole rifles and shotguns. He pled guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). The district court applied § 2K2.1(b)(4) increase because the firearms involved in the offense were stolen and a four-level increase under § 2K2.1(b)(5) because he possessed the firearms in connection with “another felony offense,” i.e. the sporting goods store burglary. Recognizing that the Courts of Appeals are divided on this issue, the Third Circuit joined the Sixth and Seventh Circuits in holding that “another felony offense” means a felony or act other than the one the sentencing court used to calculate the base offense level. See, e.g. U.S. v. Szakacs, 212 F.3d 344 (7th Cir. 2000); U.S. v. McDonald, 165 F.3d 1032 (6th Cir. 1999). But see U.S. v. Luna, 165 F.3d 316 (5th Cir. 1999) and U.S. v. Kenney, 283 F.3d 934 (8th Cir. 2002) (upholding the application of both the (b)(4) and (b)(5) enhancements when a convicted felony was prosecuted in federal court for possession of firearms obtained through a burglary). Here, there was no other offense – defendant did not possess any firearms when he entered the store, nor did he use the stolen firearms to commit any crimes after the theft. U.S. v. Fenton, 309 F.3d 825 (3d Cir. 2002).
3rd Circuit holds that escape is crime of violence under firearm guideline. (330) Guideline § 2K2.1(a)(2) provides for an enhanced offense level if the defendant committed the current offense after sustaining at least two prior felony convictions for either a crime of violence or a drug offense. The district court found that defendant’s 1995 conviction for felony escape was a crime of violence because the crime of escape, “by its nature, present[s] a serious potential risk of physical injury to another.” See Note 1 to § 4B1.2. Defendant contended that his escape was not a crime of violence in that he “simply absented himself from the place of confinement without being privileged to do so” and that there was [no] violence involved with the actual escape.” The Third Circuit held that escape, even a “walk away” escape, is a crime of violence. Escape is a continuing crime that does not end when the escapee leaves the correctional facility. An escapee “is likely to possess a variety of supercharged emotions, and in evading those trying to recapture him, may feel threatened by police officers, ordinary citizens, or even fellow escapees. Consequently violence could erupt at any time.” U.S. v. Gosling, 39 F.3d 1140 (10th Cir. 1994). U.S. v. Luster, 305 F.3d 199 (3d Cir. 2002).
3rd Circuit finds no evidence that defendant sold guns with knowledge they would be used in other crimes. (330) Several of defendant’s associates burglarized a sporting goods store and stole 22 guns. They had discussed the plan with defendant, but he had declined to participate. However, after the burglary, defendant disposed of the firearms, turning over the proceeds to the burglars. The record contained nothing as to where, how, or to whom defendant sold the guns. Defendant declined to provide details to the government, claiming he was afraid for his safety. However, three of the 22 guns were later confiscated in connection with criminal activity. The Third Circuit reversed a § 2K2.1(b)(5) enhancement for transferring a firearm with knowledge, intent or reason to believe that it would be used or possessed in connection with another felony offense. The PSR specifically provided that there was no “specific information connecting the defendant’s sale of firearms with the commission of another felony offense.” While a sentencing court is free to draw inferences from facts of record, there were no facts here from which defendant’s knowledge, intent or belief at the relevant time could be gleaned. Neither fear for his safety several months later, nor the later use of three of the guns in connection with criminal activity, was probative of the requirement that the transfer be “with knowledge, intent, or reason to believe.” U.S. v. Cicirello, 301 F.3d 135 (3d Cir. 2002).
3rd Circuit holds that disposal of 22 stolen firearms did not pose substantial risk of death or bodily injury. (330) Several of defendant’s associates burglarized a sporting goods store and stole 22 guns. They had discussed the plan with defendant, but he had declined to participate. However, after the burglary, defendant disposed of the firearms, turning over the proceeds to the burglars. The record contained nothing as to where, how, or to whom defendant sold the guns. Three of the 22 guns were later confiscated in connection with criminal activity. Application Note 16 to § 2K2.1 provides that an upward departure may be warranted where the offense posed a substantial risk of death or bodily injury to multiple individuals. The district court departed upward under Note 16, finding that selling “a score of lethal concealable firearms on the streets” was an extreme aggravating factor. The Third Circuit reversed. The number of weapons was specifically considered in the guidelines, as was the fact that the weapons governed by it were for the most part concealable firearms. Moreover, the conclusory finding that the sale was “on the streets” was unfounded, since the record indicated only that defendant “disposed of” the guns, not where, how, or to whom. U.S. v. Cicirello, 301 F.3d 135 (3d Cir. 2002).
3rd Circuit says defendant convicted of firearm trafficking not entitled to sporting purposes reduction. (330) Defendant pled guilty to selling firearms without a license, in violation of 18 U.S.C. § 922(a)(1)(A). Defendant argued that because he had possessed the firearms at issue for “sporting purposes”—until he chose to sell them unlawfully—he was entitled to a reduction under USSG § 2K2.1(b) (2). The Third Circuit held that because defendant sold the firearms, he did not possess them “solely for a lawful sporting purposes or collection.” The guidelines did not use the terms “traffic,” “sell,” or “transfer” to describe conduct connected with a sporting or collective purpose. The Sentencing Commission used such language in other subsections to § 2K2.1, thereby emphasizing the omission of these terms in the “sporting purposes” guideline. See, e.g., § 2K2.1(b)(5) (requiring four-level increase if defendant possessed or “transferred” gun where it would be used in another felony). The fact that the Commission used trafficking language in certain sections of § 2K2.1 but chose not to use such language in subsection (b)(2) was sufficient to conclude that the Commission did not intend for § 2K2.1(b)(2) to apply to those defendants convicted trafficking offenses. U.S. v. Miller, 224 F.3d 247 (3d Cir. 2000).
3rd Circuit holds that defendant possessed the weapon “in connection with” drug crime. (330) Police arrested defendant in possession of 29 packets of heroin and a loaded semi-automatic pistol. The district court applied a § 2K2.1(b)(5) increase for possessing a firearm “in connection with” his drug offense. Defendant argued that the phrase “in connection with” should have a narrow meaning and that the government should be required to prove “some causal nexus” between the gun and the felony. The Third Circuit rejected this proposed test, interpreting § 2K2.1(b)(5) broadly to cover a wide range of relationships between the gun possession and the other felony offense. The court refused to provide an exhaustive list of relationships. However, it concluded that when a defendant has a loaded gun on his person while caught in the midst of a crime that involves in-person transactions, a district judge can reasonably infer that there is a relationship between the gun and the offense and hence § 2K2.1(b)(5) is satisfied. Here, defendant admitted that he kept the gun for personal protection. The district court properly concluded that one of the reasons defendant felt he needed a gun was to protect his drug business. U.S. v. Loney, 219 F.3d 281 (3d Cir. 2000).
3rd Circuit reverses § 2D1.1(b)(1) gun increase because of conviction for § 924(c). (330) Defendant was convicted of drug and firearm charges. The Third Circuit held that a § 2D1.1(b)(1) enhancement was plain error because defendant was also convicted under 18 U.S.C. § 924(c). Note 2 to § 2K2.4 plainly prohibits a § 2D1.1(b)(1) enhancement for possession of any firearm, whether it be the one directly involved in the underlying offense or another firearm, even one in a different location if the defendant is also sentenced for using or carrying a firearm in relation to the offense under 18 U.S.C. § 924(c). U.S. v. Knobloch, 131 F.3d 366 (3d Cir. 1997).
3rd Circuit applies § 2K2.1(b)(5) to negligent use or possession of gun in connection with another felony. (330) Defendant traveled to a neighboring town to sell a gun to an associate. As the gun was being removed from the trunk of defendant’s car, it accidentally discharged, killing the associate. Defendant pled guilty to involuntary manslaughter in state court. He was later convicted in federal court of being a felon in possession of a firearm. The district court applied a § 2K2.1(b)(5) enhancement for using or possessing the firearm in connection with another felony–the involuntary manslaughter. Defendant argued that § 2K2.1(b)(5) requires an intent to commit the other felony. The Third Circuit held that § 2K2.1(b)(5) covers the negligent use or possession of a weapon in connection with a felony–the defendant need not intend to commit the felony. “In connection with” is defined in the dictionary as a “causal or logical relation or sequence.” It does not suggest the need for criminal intent. U.S. v. Brannan, 74 F.3d 448 (3d Cir. 1996).
3rd Circuit separately groups illegal firearms purchases made on multiple occasions. (330) Over a two year period, defendant purchased seven firearms from a licensed dealer on five different occasions. Each time defendant used a fictitious name and misrepresented that he had never been convicted of a felony. He was later found in possession of two of the illegally purchased guns. Defendant pled guilty to seven counts of making false statements in connection with a firearm purchase, and one count of being a felon in possession of a firearm. The district court ruled that the eight counts formed five separate groups under § 3D1.2. The Third Circuit upheld the separate grouping. Section 3D1.2(b) (offenses involving same victim) was not applicable because each time defendant illegally acquired a firearm, there was a separate and distinct fear and risk of harm to society. Section 3D1.2(c) did not require grouping. Where there was some overlapping of counts, the court did group those counts together. Finally, the offenses did not need to be grouped simply because unlicensed firearm dealing counts are grouped under § 3D1.2(d). U.S. v. Griswold, 57 F.3d 291 (3d Cir. 1995).
3rd Circuit upholds separate grouping of firearms counts. (330) On five occasions, defendant purchased a firearm from a licensed dealer by misrepresenting that she had never been convicted of a felony. The district court divided the counts into three separate groups based on the time frame in which the purchases were made. The Third Circuit rejected defendant’s claim that the counts should be grouped together. Defendant’s conduct was not ongoing and continuous under § 3D1.2(d). She made five purchases over a period of several months. She gave inconsistent explanations for her purchases. There was nothing in the record to suggest that the purchases were tied together in any respect other than being from the same dealer. U.S. v. Bush, 56 F.3d 536 (3d Cir. 1995).
3rd Circuit affirms application of “one book rule.” (330) Defendant was sentenced in 1994 for several firearms offenses. Because § 2K2.1 was amended after he committed the charged offenses, the 1993 guidelines in effect at sentencing would have resulted in a harsher sentence than the version in effect when defendant committed the offenses. The parties agreed that the 1990 version of § 2K2.1 was applicable. The district court granted defendant the two-level acceptance of responsibility reduction available under the 1990 guidelines. Defendant argued that the district court should have granted him the three level reduction available under the 1993 guidelines. The Third Circuit, following its recent decision in U.S. v. Cook, 53 F.3d 1029 (9th Cir. 1995), affirmed the district court’s application of the “one book rule.” U.S. v. Griswold, 57 F.3d 291 (3d Cir. 1995).
3rd Circuit says 1989 guideline covered selling guns when defendant should have known they would be used in another crime. (330) Defendant and others conspired to illegally sell firearms. The district court departed upward, finding the 1989 guidelines did not account for the fact that defendant should have known that the weapons would be used to commit further crimes. The 3d Circuit reversed, holding that the 1989 guidelines took this into account. The fact that the 1991 firearms amendments added an enhancement under § 2K2.1(b)(5) for transferring a weapon with knowledge, intent or reason to believe that it would be used in another felony, did not prove that the 1989 guidelines failed to account for this. The 1991 amendments consolidated §§ 2K2.1 through 2.3 into a single guideline. The 1989 version of § 2K2.3 covered defendants who received or transferred firearms with intent or knowledge to commit another crime. The new § 2K2.1(b)(5) enhancement serves a part of the function that § 2K2.3 served in 1989. U.S. v. Bass, 54 F.3d 125 (3d Cir. 1995).
3rd Circuit holds that recreational shooting is lawful sport. (330) Guideline section 2K2.1(b)(2) decreases the offense level for certain firearms offenses if the weapons were possessed solely for “lawful sporting purposes.” The 3rd Circuit held that “plinking,” defined as shooting at cans, bottles, and the like in trash dumps or as they are floating by in the river, is a lawful sport under section 2K2.1(b)(2). It rejected the district court’s conclusion that sport requires competition. The 1989 amendment changing “sport or recreation” to “lawful sporting purposes” was not intended to eliminate recreational activities from the list of activities eligible for the reduction, but to eliminate a redundancy. U.S. v. Bossinger, 12 F.3d 28 (3rd Cir. 1993).
3rd Circuit holds that firearm enhancement does not require knowledge that gun was stolen. (330) Defendant was convicted of being a felon in possession of a firearm, and received a two level enhancement under guideline section 2K2.1(b)(2) because the gun was stolen. The 3rd Circuit rejected defendant’s claim that an enhancement under section 2K2.1(b)(2) is proper only if defendant knew the weapon was stolen. The language of section 2K2.1(b)(2) is unambiguous, and it is clear that Congress intentionally imposed strict liability. The lack of a scienter requirement does not violate due process by punishing a defendant for conduct for which he was not found guilty. Judge Mansmann dissented, believing that section 2K2.1(b)(2) as applied in this case violated substantive due process by relieving the government from proving criminal intent and meeting a sufficient standard of proof. U.S. v. Mobley, 956 F.2d 450 (3rd Cir. 1992).
3rd Circuit reverses failure to group together firearms offenses. (330) Defendant pled guilty to possession of firearms by a felon, delivery of firearms to a common/contract carrier, and possession of an altered firearm. The 3rd Circuit found that the district court improperly failed to group together these charges. The possession of firearms by a felon count and the possession of an altered firearm count should have been grouped under guideline § 3D1.2(c), which provides for the grouping of offenses in which one count is also a specific offense characteristic of another count. The guidelines provide for an increase in offense level for possession of a firearm by a felon if the firearm has an altered or obliterated serial number, and defendant received such an increase. In addition, grouping of the offenses of possession of a firearm by a felon and delivery to a common/contract carrier was required because to hold otherwise would provide enhanced punishment for defendant’s status as a felon, rather than additional conduct. U.S. v. Riviere, 924 F.2d 1289 (3rd Cir. 1991).
3rd Circuit finds defendant’s intent to kill was a proper basis for departure in firearms and explosives case. (330) Defendant was sentenced under guidelines § 2K2.1 (possession of firearms by prohibited persons), 2K2.2 (possession of firearms in violation of regulatory provisions), and 2K1.6 (transporting explosives with knowledge that others will use the explosives to harm people or property). Defendant argued that these guidelines considered his specific intent to kill, and therefore this was not a proper ground for an upward departure. The 3rd Circuit rejected this argument, finding no clear textual evidence that this factor was considered. Although the firearms guidelines obviously incorporated “some presumption of intended unlawful use,” the intent to shoot and kill someone was “sufficiently different” from other less egregious unlawful uses. Likewise, there is a distinction between one who transports explosives with the knowledge that others will use the explosives to harm people and property, and one who transports explosives intending to harm people and property himself. Defendant’s intent to kill was a proper ground for departure. U.S. v. Kikumura, 918 F.2d 1084 (3rd Cir. 1990), overruled on other grounds by U.S. Grier, 449 F.3d 558 (3d Cir. 2006).
3rd Circuit holds “silencers” are firearms under sentencing guidelines. (330) Defendant argued that a silencer was not a firearm for the purposes of establishing a base offense level under the sentencing guidelines. The 3rd Circuit ruled that although neither the sentencing guidelines nor 26 U.S.C. § 5861 define a “silencer” as a “firearm,” the language of the definitional sections make it clear Congress intended for “silencers” to be regarded as “firearms” when it passed the Gun control Act of 1968. Since the guidelines do not change criminal statutes but only deal with punishment for their violations, the existing definitions were not changed by the sentencing guidelines. U.S. v. Wickstrom, 893 F.2d 30 (3rd Cir. 1989).
3rd Circuit holds upward departure for public welfare reasons is to be rarely imposed. (330) In a case involving a conspiracy to commit firearms offenses, the district court made an upward departure, based in part upon the threat to public welfare caused by untraceable handguns. The Third Circuit reversed stating that whenever firearms are involved, public safety is a consideration. However, § 5K2.14 of the guidelines clearly states that departures on public safety are warranted only when the danger posed is to a degree substantially in excess of that which is ordinarily involved. Because the degree of danger was not in excess of that considered by the commission in establishing the guidelines, the departure was improper. U.S. v. Uca, 867 F.2d 783 (3rd Cir. 1988).
3rd Circuit reverses upward departure for firearms offenses because guidelines adequately consider factors. (330) Two defendants pled guilty to a conspiracy to purchase fifty-six untraceable handguns for shipment overseas. The Third Circuit held that the trial court’s upward departure was impermissible and remanded for resentencing. The panel held that the guidelines adequately consider 1) the number of guns involved, 2) the traceability of the weapons 3) the ultimate (unlawful) purpose for which the guns were to be used and 4) the threat to public welfare posed by handguns. U.S. v. Uca, 867 F.2d 783 (3rd Cir. 1988).
4th Circuit agrees that vacant duplex was “dwelling” for arson enhancement purposes. (330) Defendant was convicted of arson and mail fraud in connection with the intentional burning of a two-unit duplex that he owned and managed. The district court increased the sentence under § 2K1.4(a)(1) based on its finding that the duplex qualified as a “dwelling.” Defendant argued that the duplex lost its character as a dwelling once the tenants vacated the premises. The Fourth Circuit disagreed. The duplex was vacant at most for a couple of weeks before the fire was set. The brief period during which the duplex was completely empty of tenants did not cause it to lose its essential character as a dwelling, especially since one of the tenants was under no order of eviction and con-tinued to maintain personal property in her unit at the time of the fire. The duplex, which still had power and was in a habitable condition, clearly had not been aban¬doned to the point that it could no longer be considered a “dwelling.” U.S. v. White, __ F.3d __ (4th Cir. Nov. 17, 2014) No. 13-4949.
4th Circuit finds Maryland breaking and entering is not a crime of violence because it can be committed by negligence. (330) Defendant received an enhanced sentence under § 2K2.1(a)(2) based on the district court’s finding that his prior Maryland conviction for fourth-degree burglary, under Md.Code Ann., Crim. Law § 6-205(a), was a crime of violence. The Fourth Circuit held that the Maryland offense was not a crime of violence under the residual clause of § 4B1.2(a)(2)., because Begay v. U.S., 553 U.S. 137 (2008) held that that the residual clause only covers crimes that are “roughly similar, in kind as well as in degree of risk posed,” to the enumerated offenses. Most of the circuits have held that Begay‘s similar-in-kind standard was limited by Sykes v. U.S., 131 S.Ct 2267 (2011), to strict liability, negligence, and recklessness crimes. However, the Fourth Circuit has continued, even after Sykes, to apply Begay‘s similar-in-kind requirement to residual-clause cases. Under this analysis, the Maryland offense did not qualify as a crime of violence. The enumerated crimes are all “purposeful, violent, and aggressive.” Crimes that can be committed through negligent conduct do not satisfy the Begay inquiry. The Maryland statue could be violated by negligent conduct, and therefore was not “similar in kind” to the enumerated crimes. U.S. v. Martin, __ F.3d __ (4th Cir. June 5, 2014) No. 12-5001.
4th Circuit says serial number need not be illegible to be “altered.” (330) Defendant pled guilty to being a felon in possession of a firearm. The district court applied a four-level enhancement under § 2K2.1(b)(4)(B) for a firearm with “an altered or obliterated serial number.” The serial number on one of the guns had been gouged and scratched, rendering it less legible, but arguably not illegible. The Fourth Circuit rejected defendant’s claim that to be “altered” under § 2K2.1(b)(4)(B), a serial number must be illegible. A serial number that is made less legible is made different and therefore is altered for purposes of the enhancement. Here, the gouges and scratches on defendant’s gun made the serial number less legible, and thus “altered” for purposes of the enhancement. U.S. v. Harris, 720 F.3d 499 (4th Cir. 2013).
4th Circuit upholds cross-reference to second-degree murder guideline. (330) Defendant was convicted of illegal possession of a firearm. Because he had used the firearm on the day of his arrest to shoot another person, the district court used the cross-reference in § 2K2.1(c) to apply the attempted second-degree murder guideline. Defendant argued that the facts in the PSR failed to establish the elements of attempted second-degree murder, and at most supported a finding of attempted voluntary manslaughter. The Fourth Circuit upheld the district court’s use of the cross-reference. Defendant reignited a previous dispute with the victim, Chaplin, by driving across town to retrieve his gun hours after an initial altercation, warning neighbors that he intended to use the firearm on Chaplin. Defendant then made good on his threat, telling Chaplin “I should kill you” before firing three shots, two of which hit Chaplin. Even if Chaplin shared some blame by virtue of his decision to confront defendant, defendant was “not angry” or in danger when he drew his firearm and pursued the fleeing Chaplin. These facts exhibited the wanton behavior that warranted an inference of malice. U.S. v. Ashford, 718 F.3d 377 (4th Cir. 2013).
4th Circuit approves cross-reference for non-groupable firearms offense. (330) Defendant was convicted of illegal possession of a firearm. Because he had used the firearm on the day of his arrest to shoot another person, the district court used the cross-reference in § 2K2.1(c) to apply the attempted second-degree murder guideline. The relevant conduct guideline, § 1B1.3(a) provides that cross-references shall be determined on the basis of several listed conditions. Defendant argued that all four subsections of § 1B1.3(a) must apply to sustain a cross-reference. Specifically, he argued that because attempted second-degree murder was a non-groupable offense, it was excluded from the relevant conduct guideline by § 1B1.3(a)(2). The Fourth Circuit disagreed, ruling that § 1B1.3(a) should be read disjunctively. A cross-referenced offense may satisfy either subsection (a)(1) or (a)(2) of the relevant conduct guideline, and subsections (a)(3) and (a)(4) simply supplement the two previous subsections. Because the attempted murder occurred on the same day with the same illegally-possessed firearm, this non-groupable offense only needed to satisfy subsection (a)(1). U.S. v. Ashford, 718 F.3d 377 (4th Cir. 2013).
4th Circuit upholds enhancement, despite acquittal, for possessing sawed-off shotgun. (330) Police discovered a sawed-off shotgun and ammunition in defendant’s car. He was convicted of being a felon in possession of ammunition, but the jury acquitted him of possessing the sawed-off shotgun. Nonetheless, the district court found by a preponderance of the evidence that he possessed the sawed-off shotgun, and applied an enhanced offense level of 26 under § 2K2.1(a)(1). The Fourth Circuit upheld the district court’s finding that defendant possessed the sawed-off shotgun. Given the lesser standard of proof at sentencing, the fact that the jury acquitted defendant of firearms charges did not preclude the court from finding that defendant did in fact possess a firearm. Defendant had argued that the absence of his fingerprints, DNA, hair, fiber, or other physical evidence on the firearm prohibited a finding that he possessed the weapon. However, constructive possession may be established through circumstantial evidence. Here, there was evidence and witness testimony that defendant was the owner and driver of the vehicle in which the firearm was found. Moreover, the shotgun was loaded with the same ammunition found in the vehicle, which was the ammunition defendant was convicted of possessing. U.S. v. Lawing, 703 F.3d 229 (4th Cir. 2012).
4th Circuit rejects use of murder cross-reference where neither conviction nor cross-referenced offense was groupable. (330) Defendant was convicted of being a felon in possession of a firearm based on an incident with his girlfriend. However, the bulk of his sentencing hearing was devoted to testimony about a home invasion robbery and murder that occurred one week after the offense of conviction. The district court found that the murder was relevant conduct to the firearm offense, and applied the cross-reference in § 2K2.1(c)(1) to the murder guideline, § 2A1.1. The Fourth Circuit found sufficient evidence that defendant committed the murder. However, the murder was not relevant conduct under § 1B1.3(a)(2), and thus did not support application of the § 2K2.1(c)(1) cross-reference. The relevant conduct guideline applies where the offenses would require grouping of multiple counts under § 3D1.2. Although there is a circuit split on this issue, the panel held that subsection (a)(2) is applicable only when both the offense of conviction and the relevant conduct offense are capable of grouping. U.S. v. Horton, 693 F.3d 463 (4th Cir. 2012).
4th Circuit reverses robbery cross-reference for failure to make necessary findings. (330) After a shooting, defendant was found with a round of ammunition matching shell casings at the scene of the shooting, and the victim’s cell phone. Defendant entered a “no contest” plea in state court to a robbery charge, and pled guilty in federal court to being a felon in possession of ammunition. The PSR recommended the application of robbery guideline based on the cross-reference in § 2K1.1(c)(1)(A), and defendant objected. In response, the government offered conflicting testimony from an FBI agent, who reported that the victim told one police officer that his cell phone “got taken from him by the people with the guns,” and another officer that “he dropped his cell phone while running away from whoever was shooting at him.” Given the conflicting evidentiary record, the Fourth Circuit ruled that the court erred in applying the cross-reference without indicating how it resolved the evidentiary dispute. The district court seemed to rely solely on defendant’s robbery conviction, which was based on his “no contest” plea. However, the “no contest” plea to common law robbery could not alone provide the necessary evidentiary basis to support application of the robbery cross-reference. U.S. v. Davis, 679 F.3d 177 (4th Cir. 2012).
4th Circuit rules conviction for pointing and presenting a firearm was crime of violence. (330) Defendant pled guilty to being a felon in possession of a firearm, and received an enhanced offense level under § 2K2.1(a)(4)(A) based on the district court’s finding that his prior South Carolina conviction for pointing and presenting a firearm was a crime of violence. The Fourth Circuit reversed. The panel deferred to the South Carolina courts’ interpretation of the elements of the statute, and concluded that an offender must point, present, or show a firearm at another in a threatening manner to be convicted of this offense. Because defendant necessarily pointed and presented a firearm in a threatening manner, defendant’s conviction was for an offense that “has as an element the … threatened use of physical force against the person of another,” § 4B1.2(a)(1), and therefore qualified as a “crime of violence.” U.S. v. King, 673 F.3d 274 (4th Cir. 2012).
4th Circuit applies increase for 8-24 firearms based on raw materials defendant possessed. (330) Defendant pled guilty to the knowing possession of an unregistered firearm. The district court applied a four-level enhancement under § 2K2.1(b)(1)(B) because the offense involved eight to 24 destructive devices. The Fourth Circuit found no clear error in applying the enhancement. An FBI agent testified that defendant possessed enough chemicals and material for 15 destructive devices. Further, based on the amount, combination, location and close proximity of the chemicals, the agent opined that defendant possessed them “most likely … to make explosive materials.” U.S. v. McKenzie-Gude, 671 F.3d 452 (4th Cir. 2011).
4th Circuit finds defendant possessed firearm in connection with larger firearm conspiracy. (330) Defendant pled guilty to knowingly possessing an unregistered firearm. The Fourth Circuit upheld a § 2K2.1(b)(6)(B) enhancement for possessing a firearm in connection with another felony offense. At sentencing, the district court heard testimony that defendant initiated a conspiracy with a friend to purchase firearms with obliterated serial numbers. The friend testified that they recruited others to participate in their plan and determined the location where they would purchase the weapons. He further testified that the plan called for him and others to be armed with defendant’s weapons to fire at the seller, who the conspirators would maneuver to stand in a designated “kill zone,” if the deal went bad. Given this testimony, the district court was not clearly erroneous in finding that the plan constituted “at a minimum” a conspiracy to possess guns with obliterated serial numbers. U.S. v. McKenzie-Gude, 671 F.3d 452 (4th Cir. 2011).
4th Circuit vacates where court relied on unincorporated statement of probable cause to find crime of violence. (330) Defendant was convicted of firearms charges, and received an enhanced sentence based on the court’s finding that his prior Maryland second-degree assault conviction was a crime of violence. The court relied on facts in an unincorporated “statement of probable cause” prepared by the arresting officer and introduced at sentencing by the government. The Fourth Circuit vacated the sentence, holding that the district court was not permitted to consider the unincorporated statement of probable cause. To consider information in an external document, the document must be expressly incorporated into the charging document. Where an external document is not incorporated, there is no certainty that the defendant necessarily admitted the facts contained in the external document. U.S. v. Donnell, 661 F.3d 890 (4th Cir. 2011).
4th Circuit upholds lack of means rea in stolen firearm enhancement. (330) Defendant was convicted of being a felon in possession of a firearm, and received a two-point enhancement under § 2K2.1(b)(4)(A) for possession of a stolen firearm. This enhancement applies “regardless of whether the defendant knew or had reason to believe that the firearm was stolen.” Note 8(b) to § 2K2.1. Defendant argued that the lacks of a mens rea requirement was inconsistent with federal law. The Fourth Circuit disagreed. While a preference for mens rea is deeply rooted in our jurisdiction, the absence of this element is not necessarily a fatal flaw. It is not unusual to punish individuals for the unintended consequences of their unlawful acts. Had defendant not chosen to possess the handgun unlawfully to begin with, he would never have been punished for the possession of a stolen firearm. Every circuit to consider a challenge to § 2K2.1(b)(4)(A) has upheld the guideline. U.S. v. Taylor, 659 F.3d 339 (4th Cir. 2011).
4th Circuit approves 96-month sentence for possession of loaded firearm on city street. (330) Defendant was convicted of being a felon in possession of a firearm after he was caught with a loaded handgun on a Baltimore street. He argued that his 96-month sentence was substantively unreasonable, due to mitigating factors and the comparatively innocuous nature of his conduct. The Fourth Circuit found that under the facts of the case, the district court’s sentence fell well within the range of reasonable punishment. After illegally obtaining a stolen firearm, defendant carried this loaded weapon on a Baltimore street before handing it to a co-defendant through a car window. Defendant’s previous encounters with the law had had little or no deterrent effect. The supposed mitigating circumstances were neither supported nor verified. U.S. v. Taylor, 659 F.3d 339 (4th Cir. 2011).
4th Circuit holds defendant who resisted arrest possessed gun in connection with another felony. (330) Defendant ran away from officers attempting to detain him. After tackling defendant, the officers engaged in a struggle with defendant before finally subduing him with a taser. Officers then searched defendant, and found a loaded gun and a bag containing marijuana. Defendant was convicted of being a felon in possession of a firearm. The district court found that defendant assaulted the officers while resisting arrest, and applied a four-level increase under § 2K2.1(b)(6) for possessing a firearm “in connection with another felony offense.” The Fourth Circuit affirmed. The relevant South Carolina assault statute was sufficiently broad to support the district court’s conclusion that defendant committed felonious assault on the deputy in the course of the struggle. Although a closer question, defendant possessed the firearm “in connection with” the commission of the felony. Defendant had the weapon close at hand, and the district court found that he made multiple attempts to access it during the course of the assault. U.S. v. Hampton, 628 F.3d 654 (4th Cir. 2010).
4th Circuit rules walk-away escape from unsecured facility was not crime of violence. (330) Defendant pled guilty to being a felon in possession of a firearm. The district court set his base offense level at 20 under § 2K2.1(a)(4)(A), based on its finding that his prior conviction for the offense of felony escape under Georgia law, Ga. Code § 16-10-52(a), constituted a crime of violence. The Fourth Circuit reversed, holding that a walk-away escape from an unsecured facility was not a crime of violence under § 4B1.2(a)’s “otherwise” clause. Such an escape is a “far cry” from the type of conduct associated with the enumerated crimes in § 4B1.2(a). The charging document and guilty plea and judgment documents here did not necessarily show that defendant was convicted of the generic crime of break-out escape as opposed to the generic crime of walk-away escape from an unsecured facility. Because the documents left room for the possibility that defendant was convicted of a walk-away escape, it was error to treat the escape as a crime of violence in setting the base offense level under § 2K2.1. U.S. v. Clay, 627 F.3d 959 (4th Cir. 2010).
4th Circuit says possession of firearm was in connection with reckless endangerment. (330) Defendant carried a loaded firearm that had no safety into a meeting with the probation officer who was supervising his probation on a Maryland state offense. He was convicted of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g). Section 2K2.1(b)(6) requires a four-level enhancement if the firearm was possessed in connection with another felony offense. The district court enhanced defendant’s sentence under § 2K2.1(b) (6) because defendant’s possession of the firearm constituted the offense of reckless endangerment. The Fourth Circuit agreed that defendant’s carrying of a loaded firearm into his probation officer’s office constituted reckless endangerment under Maryland law. U.S. v. Alvarado-Perez, 609 F.3d 609 (4th Cir. 2010).
4th Circuit upholds 96-month above-Guidelines sentence for possession of firearm. (330) Defendant brought a loaded firearm without a safety to a meeting with a probation officer. He pleaded guilty to possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g). After adjustments for facilitating a criminal offense, inflicting psychological injury on his probation officer, and disrupting a government function, defendant had an offense level of 25. At criminal history category II, defendant had a sentencing range of 63 to 78 months. The district court varied upward and imposed a 96-month sentence because defendant’s conduct was “reckless and outrageous” and because defendant was a gang member. The Fourth Circuit held that the sentence was not substantively unreasonable. U.S. v. Alvarado-Perez, 609 F.3d 609 (4th Cir. 2010).
4th Circuit rules conviction under arson statute that included burning of vegetation was crime of violence. (330) The base offense level for a felon-in-possession sentence is 20 if the defendant committed any part of the instant offense after sustaining a prior conviction for a crime of violence or a controlled substance offense. § 2K2.1(a)(4). Although arson is an enumerated offense in § 4B1.2(a), defendant argued that her prior Texas conviction for second-degree arson was not a crime of violence because the Texas statute includes in its definition the burning of any vegetation on open land, (Tex. Penal Code Ann. § 28.02(a)(1)) which is broader than the generic definition of arson. The Fourth Circuit ruled that the Texas statute was not broader than the generic definition simply because it included in its definition the burning of any vegetation. Several states similarly define arson to explicitly include the burning of grass, brush, or other vegetation. The district court did not err in relying on defendant’s arson conviction to increase her base offense level to 20. U.S. v. Knight, 606 F.3d 171 (4th Cir. 2010).
4th Circuit says error in applying current Guidelines was not plain. (330) Using the 2007 version of § 2K2.1(b)(4) in effect when defendant was sentenced, the district court applied a four-level enhancement because the gun defendant possessed had an obliterated serial number. However, the 2005 version of § 2K2.1 in effect when defendant committed her offense provided for only a two-level enhancement. Defendant raised an ex post facto challenge for the first time on appeal. The government argued that the application of the Guidelines post-Booker does not implicate the ex post facto clause, but the Fourth Circuit noted that this argument was foreclosed by its recent decision in U.S. v. Lewis, 606 F.3d 193 (4th Cir. 2010).. Nevertheless, the error did not meet the plain error test—defendant could not demonstrate that the error violated her substantial rights. The court’s explanation for its 60-month sentence suggested that it would not imposed a sentence of less than 60 months even if the correct sentencing range had been used. U.S. v. Knight, 606 F.3d 171 (4th Cir. 2010).
4th Circuit uses first-degree murder guideline for firing firearm into crowded parking lot. (330) Defendant sprayed 22 rounds of an AK-47 assault rifle into a crowded night club parking lot, killing a man sleeping in a car. He was convicted of being a felon in possession of a firearm. The district court applied the cross-reference in § 2K2.1(c)(1) to sentence defendant under the first-degree murder guideline, § 2A1.1. The Fourth Circuit held that the district court did not err in finding that first-degree murder was the appropriate cross-reference for defendant’s firearm offense. It was not necessary that the defendant intend to kill the specific individual who died. Here, many facts supported the view that defendant behaved willfully, deliberately, maliciously, and with premeditation, including the fact that he had previously threatened mayhem at the club, and the fact that he kept firing until he emptied his magazine. The court properly applied the first-degree murder reference. U.S. v. Wright, 594 F.3d 259 (4th Cir. 2010).
4th Circuit finds possession of gun was “in connection with” possession of cocaine base. (330) Defendant pled guilty to being a felon in possession of a firearm. Based on .29 grams of cocaine base found on defendant when police arrested him, the district court applied a § 2K2.1(b)(6) enhancement for possessing the firearm “in connection with” another felony offense. Defendant argued that he possessed only a small amount of drugs for personal use, and the court erred in finding that the gun “had the potential for facilitating” the possession offense. The Fourth Circuit disagreed, and upheld the enhancement. Defendant took the revolver and cocaine onto a public street, near where a gun had recently been fired, close to midnight. This environment suggested that there was a heightened need for protection and the firearm emboldened defendant. In addition, defendant possessed the gun on his person, and it was loaded. Thus it was accessible and ready for use, which further suggested that it was present for protection or to embolden defendant. U.S. v. Jenkins, 566 F.3d 160 (4th Cir. 2009).
4th Circuit says repeal of assault weapon ban did not nullify §2K2.1(4)(B) increase. (330) Defendant pled guilty to being a felon in possession of a firearm. The firearm qualified as a “semi-automatic assault weapon” as defined by 18 U.S.C. §921(a)(30), the possession of which at one time was prohibited by 18 U.S.C. §922(v)(1). Guideline §2K2.1(4)(B)(i)(1) directs a court to apply a six-level increase “if the offense involved a firearm described in . . . 18 U.S.C. §921(a)(30).” However, the assault-weapon ban expired on September 13, 2004. Defendant committed his offense in April 2006, well after the expiration of the assault-weapon ban. The Fourth Circuit held that the repeal of the statutory assault weapon ban did not render §2K2.1(4)(B)(i)(1) a nullity. There was no reason that the repeal of the assault-weapon ban should render invalid the Sentencing Commission’s independent decision that possession of these weapons by prohibited persons is especially dangerous. U.S. v. Myers, 553 F.3d 328 (4th Cir. 2009).
4th Circuit rules that felony stalking conviction was crime of violence. (330) Defendant pled guilty to being a felon in possession of a firearm, and received an enhanced offense under §2K2.1 based on the district court’s finding that his prior North Carolina felony stalking conviction was a crime of violence. The Fourth Circuit affirmed. To be guilty under the North Carolina statute, (1) defendant’s conduct had to be willful, (2) defendant had to be guilty of willfully stalking “on more than one occasion,” (3) defendant had to be found following or being in the presence of his victim, placing his victim in fear of bodily injury, (4) his conduct had to be sufficiently egregious to have placed a “reasonable” person in such fear, and (5) defendant had to place his victim in fear of bodily injury “with the intent to cause emotional distress.” The panel found it “difficult, if not impossible, to conceive how this conduct could have been carried out without threatening by word or action the use of physical force.” Further, the offense would qualify as a violent felony under the ACCA—it was purposeful, violent and aggressive, and posed a risk similar to if not greater than the enumerated offense of burglary or extortion. U.S. v. Seay, 553 F.3d 732 (4th Cir. 2009).
4th Circuit holds defendant should have received a criminal history point for sentence imposed nine years and 11 months before current offense. (330) Defendant pled guilty to being a felon in possession of a firearm. The district court assigned him a base offense level of 24 under § 2K2.1(a)(2), which applies “if the defendant committed any part of the instant offense subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense.” He argued that his 1994 drug conviction should not have been included for purposes of applying this offense level because he did not receive criminal history points for that offense. The Fourth Circuit agreed that if the district court correctly assigned no criminal history points for the 1994 offense, then the court erred in applying § 2K2.1(a)(2). However, the panel ruled that the district court erred by failing to assign criminal history points for that offense. The district court had found that the offense fell outside the 10-year time period established in § 4A1.2(e)(2) by looking to the date of the arrest. That was incorrect. Section 4A1.2(e)(2) does not apply if the sentence was imposed within 10 years of the instant offense, regardless of when the conduct giving rise to that sentence occurred. Defendant pled guilty on August 1, 1994, and thus, this was the earliest he could have been sentenced. The current offense occurred on July 2, 2004, about nine years and 11 months after defendant pled guilty to the 1994 offense. Therefore, the court should have assigned one criminal history point for the offense. U.S. v. Battle, 499 F.3d 315 (4th Cir. 2007).
4th Circuit finds court properly relied on facts not found by jury to support “other felony” enhancement. (330) Defendant pled guilty to being a felon in possession of a firearm. He argued that a § 2K2.1(b)(5) increase for using the firearm in connection with another felony was improperly based on facts not found by the jury. While Booker held that the Sentencing Guidelines violate the Sixth Amendment by requiring a court to impose a sentence based on facts not found by a jury, the court remedied this by excising the provision making the guidelines mandatory. When applying the guidelines in an advisory manner, the district court makes factual findings using the preponderance of the evidence standard. The Fourth Circuit found that the testimony of Blankenship was sufficient to support the finding that defendant had previously used the firearm in connection with another felony offense. Blankenship testified that she purchased crack from defendant once and that she saw her friends purchase crack from him about eight or nine times. She further testified that she saw defendant with a gun every time she or her friends purchased crack from him. Defendant offered only his own testimony to rebut Blankenship’s testimony. The district court was entitled to discredit defendant’s testimony based on his prior misrepresentations to the court during his plea hearing. U.S. v. Battle, 499 F.3d 315 (4th Cir. 2007).
4th Circuit says Maryland conviction for selling imitation drugs constituted a controlled substance offense. (330) Defendant pled guilty to firearms charges, and the district court enhanced his sentence on the grounds that his prior Maryland conviction for distributing simulated drugs was a “counterfeit substance” offense, and thus a “controlled substance offense” under § 2K2.1. Defendant argued that the offense was not a controlled substance offense because simulated drugs are not a “counterfeit substance” as defined by the Controlled Substances Act, 21 U.S.C. § 802(7). The Fourth Circuit disagreed, holding that the definition of “controlled substance offense” encompasses look-a-like drug convictions. Section 2K2.1 references the definition of a controlled substance offense in § 4B1.2(b), which is defined to include certain offenses involving “a controlled substance (or a controlled substance).” The guidelines do not define the term “counterfeit substance” as used in § 4B1.2(b), but the panel found no reason to reference the definition in the Controlled Substances Act. That provision speaks to the mislabeling and mispackaging of genuine controlled substances, not to the distribution of counterfeit controlled substances. Nothing in the guidelines references the provision at issue. U.S. v. Mills, 485 F.3d 219 (4th Cir. 2007).
4th Circuit holds that probationary sentence for felon in possession of firearm was unreasonable. (330) Defendant pled guilty to being a felon in possession of a firearm. Although he had an advisory guideline range of 57-71 months’ imprisonment, the district court, relying on the § 3553(a) factors, imposed a non-guideline sentence of three years’ probation. The court noted that defendant worked regularly, the offense involved no injury, and a term of imprisonment would likely force defendant’s children into foster care. The Fourth Circuit held that the probationary sentence was unreasonable. Such a dramatic variance from the advisory guideline range must be supported by compelling justifications related to § 3553(a) factors, and “excessive weight” may not be given to any single factor. Here, although the court briefly mentioned two § 3553(a) factors – deterrence and protection of the public, the court never explained how the sentence imposed served these interests. In truth, the court actually relied on only one aspect of § 3553(a) – defendant’s status as sole custodial parent of his two small children. Family ties and responsibilities are a discouraged factor under the guidelines, see U.S.S.G. § 5H1.6, and under the facts of this case, defendant would not have been entitled to a downward departure. The record did not support a variance of this magnitude. U.S. v. Hampton, 441 F.3d 284 (4th Cir. 2006).
4th Circuit rules sentence for § 922(g) offense may not be enhanced for conduct that resulted in § 924(c) conviction. (330) Defendant pled guilty to carrying a firearm during a drug trafficking crime, 18 U.S.C. § 924(c) and being an unlawful drug user in possession of a firearm, 18 U.S.C. § 922(g)(3). For the § 922(g) conviction, the court followed cross-references in guideline §§ 2K2.1 and 2X1.1 to sentence defendant under the drug trafficking guideline, § 2D1.1, and then applied a § 2D1.1(b)(1) enhancement for his use of a firearm during the drug transactions. Based on Amendment 599, adopted after sentencing, defendant filed a § 3582(c)(2) motion asserting that the § 2D1.1(b)(1) firearm enhancement was improper under Amendment 599. The Fourth Circuit agreed. It appeared that the Sentencing Commission adopted portions of Amendment 599 in response to an 11th Circuit opinion, U.S. v. Flennory, 145 F.3d 1264 (11th Cir. 1998), in which the defendant pled guilty to violations of § 922(g) and 924(c). The district court computed the § 922 sentence by cross-referencing § 2D1.1, and the Eleventh Circuit upheld the sentence. The commentary to Amendment 599 contrasts Flennory with opinions that have expressly rejected it to avoid imposing multiple enhancements based on the same conduct. It explains that the purpose of the amendment is to avoid duplicative punishments. The best inference from this is that the Sentencing Commission intended to repudiate Flennory and provide that a sentence for a § 922(g) offense may not be enhanced based on conduct that also resulted in a § 924(c) conviction. U.S. v. Goines, 357 F.3d 469 (4th Cir. 2004).
4th Circuit holds that defendant may rely on retroactive clarifying amendment to support sentence reduction. (330) Defendant filed a motion under 18 U.S.C. § 3582(c)(2) requesting a sentence reduction under Amendment 599, which modified Note 2 to § 2K2.4. Section 3582(c)(2 authorizes the court to reduce the sentence imposed on “a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. § 994(o), …” Section 1B1.10 expressly provides that Amendment 599 may be applied retroactively in a § 3582(c)(2) proceeding. The Fourth Circuit considered whether an amendment that merely clarifies the meaning of the relevant guideline “lowers” the “sentencing range” for purposes of § 3582(c)(2). The panel found that the answer depended on whether the term “sentencing range” refers to the range actually applied by the district court or the range intended by the Sentencing Commission. The panel concluded that a broader construction of § 3582(c)(2) better effectuated the Congressional intent, and that the term “sentencing range” referred to the range actually applied by the district court. Amendment 599 could be applied retroactively to defendant, because the applicable range was lower than the range applied by the district court. Judge Luttig dissented. U.S. v. Goines, 357 F.3d 469 (4th Cir. 2004).
4th Circuit holds that use of extraneous documents to make crime of violence finding violated Booker and Shepard. (330) The district court relied on a government memorandum, which attached a copy of the police report and the criminal investigation report, to find that defendant’s prior conviction for breaking and entering was a “crime of violence” under §§ 2K2.1(a)(4) and 4B1.2(a)(2). At issue was whether the “fact of a prior conviction” exception to the Sixth Amendment protection applies to findings of fact regarding the circumstances of a prior conviction, when such findings are used to determine that the conviction is a crime of violence. In Shepard v. U.S., 125 S.Ct. 1254 (2005), a Supreme Court plurality held that the consideration of materials outside the charging documents to rule that a prior offense was a violent felony “raised the concern underlying Jones and Apprendi.” The Fourth Circuit found that the sentencing court’s application of the §§ 2K2.1 and 4B1.2(a) crime of violence enhancement in defendant’s sentencing proceeding was error under Booker and Shepard. Judge Luttig dissented. U.S. v. Washington, 404 F.3d 834 (4th Cir. 2005).
4th Circuit approves § 5K2.9 departure where § 2X3.1 did not account for firearm charge. (330) Defendant was convicted of suborning perjury and related charges based on his attempts to persuade his ex-girlfriend to testify falsely in his favor at his earlier drug and firearm trial. Based on her false testimony, defendant was acquitted on all counts except for a simple possession of marijuana conviction. Defendant’s guideline range for the perjury offenses was 30-37 months. If he had been convicted at his first trial his sentence would have been 60-66 months, given that a § 924(c) charge carried a mandatory minimum sentence of 60 months. Guideline § 2X3.1, which would normally produce a heightened sentence for an offender in similar circumstances, could not be applied to defendant’s § 924(c) offense, since it did not carry a specific offense level. The Fourth Circuit held that the court did not err in departing upward under § 5K2.9, for committing the offense in order to facilitate or conceal the commission of another offense, the unaccounted-for underlying gun possession offense. Although § 2X3.1 generally accounts for the encouraged factor in § 5K2.9, it did not in this case, where one of defendant’s underlying offenses did not carry an offense level. The departure, to a 62-month sentence, was reasonable. U.S. v. Davis, 380 F.3d 183 (4th Cir. 2004).
4th Circuit says threat of death enhancement constituted double counting. (330) Section 2B3.1(B)(2)(F) provides that a sentence on a robbery conviction may be enhanced on the basis of a threat of death during the course of the offense. The district court imposed the threat-of-death increase on defendant because he twice threatened to shoot his carjacking victim. Defendant contended that the threat of death enhancement, when combined with his § 924(c) conviction and sentence, resulted in impermissible double counting. The Fourth Circuit agreed. Note 4 to § 2K2.4 provides that if a § 924(c) sentence is imposed in conjunction with a sentence for an underlying offense, the court should not apply any specific offense characteristic for possession, brandishing, use or discharge of a firearm. The threat of death increase was imposed for his possession and use of the firearm underlying his § 924(c) conviction – i.e. his threats were to shoot the victim with the handgun he had previously pointed at the victim. Although defendant was convicted of two underlying offenses, carjacking and kidnapping, for sentencing purposes, the carjacking and kidnapping offenses were grouped together and thus constituted the same offense. The threat of death increase resulted in impermissible double counting. U.S. v. Reevey, 364 F.3d 151 (4th Cir. 2004).
4th Circuit says fact that stolen firearm was element of 16 of 19 grouped offenses did not preclude stolen firearm increase. (330) Defendant was convicted of various firearms offenses. The district court grouped together 16 counts of possessing stolen firearms, one counting of dealing firearms without a license, and two counts of selling firearms to juveniles. Defendant argued that a § 2K2.1(b)(4) stolen firearm enhancement was impermissible because the fact that the firearms were stolen was an element of 16 of the 19 grouped offenses. Note 12 to § 2K2.1 provides that “If the only offenses to which § 2K2.1 applies is … (offenses involving a stolen firearm or stolen ammunition) and the base offense level is determined under subsection (a)(7), do not apply the adjustment in subsection (b)(4) unless the offenses involved a firearm with an altered or obliterated serial number.” The Fourth Circuit held that the stolen firearm enhancement was properly applied here. Note 12 did not prohibit the (b)(4) enhancement because § 2K2.1 did not apply only to defendant’s stolen firearms offenses. Were the (b)(4) enhancement disallowed here, defendant’s offense level would not reflect the increased severity of her crimes based on the fact that some of the firearms she sold to juveniles and sold without a license were stolen. U.S. v. Schaal, 340 F.3d 196 (4th Cir. 2003).
4th Circuit says stolen firearm and “another felony” enhancements can apply together. (330) Defendant was convicted of various firearms offenses. She argued that enhancements under § 2K2.1(b)(4), because the firearms were stolen, and § 2K2.1(b)(5), because defendant used or possessed a firearm in connection with another felony offense, constituted improper double counting. The Fourth Circuit rejected the double counting claim. Note 12 to § 2K2.1 indicates that the (b)(4) enhancement is impermissible if the only offenses governed by § 2K2.1 are stolen firearm or ammunition offenses and the base offense level is determined under § 2K2.1(a)(7). The fact that the Sentencing Commission discussed double counting with regard to (b)(4) without forbidding simultaneous application of the (b)(4) and (b)(5) enhancements provided strong evidence that the Commission did not intend to prohibit the enhancements here. Moreover, the enhancements are conceptually separate, since either can apply in the absence of the other. U.S. v. Schaal, 340 F.3d 196 (4th Cir. 2003).
4th Circuit finds insufficient nexus between firearm felon took in burglary and the burglary. (330) Defendant was convicted of being a felon in possession of a firearm. Section 2K2.1(b)(5) provides for a four-level enhancement if the defendant used or possessed the gun “in connection with another felony offense.” At issue was whether the enhancement was required when a defendant acquires a firearm during a theft or burglary, but does not use the firearm or evince any willingness to do so. The Fourth Circuit held that defendant’s burglary qualified as “another felony offense,” but that a 2K2.1(b)(5) increase was nonetheless improper because the record did not demonstrate a sufficient nexus between the burglary and defendant’s possession of the firearm. The test for determining whether an offense qualifies as “another felony offense” is whether the offenses is distinct from the offense of conviction under Blockburger v. U.S., 284 U.S. 299 (1932). The Blockburger tests asks “whether each provision requires proof of a fact which the other does not.” Thus, defendant’s state law burglary and felon in possession offense were distinct under Blockburger. However, under Fourth Circuit law, the phrase “in connection with” is synonymous with “in relation to,” as used in 18 U.S.C. § 924(c). A weapon is used or possessed “in connection with” another offense if the weapon “facilitates or has a tendency to facilitate the [other] offense.” The government, which has the burden of proving facts in support of a § 2K2.1(b) increase, did not present any evidence that defendant possessed the firearm “in connection with” the burglary.” U.S. v. Blount, 337 F.3d 404 (4th Cir. 2003).
4th Circuit vacates where court may have incorrectly equated reckless indifference to knowing behavior. (330) Defendant intentionally set fire to an apartment building and caused the death of an occupant. Because death resulted from the fire, § 2K1.4(c)(1) cross-referenced § 2A1.1, the first degree murder guideline. Note 1 to § 2A1.1 authorizes a downward departure if “the defendant did not cause the death intentionally or knowingly.” In refusing to depart, the court did not make a finding that defendant actually knew that people were inside the building at the time of the fire. Rather, the court concluded that “the only reasonable belief would be there were people” present in the apartment building, which “creates a finding of reckless indifference, willful indifference, which equates to knowledge.” The Fourth Circuit held reckless indifference does not equate with knowledge, and if the court refused to depart based on this finding, it would be error. However, it was unclear whether the court also found that the evidence was sufficient to find that defendant knowingly caused the death of another. Therefore, the panel vacated defendant’s sentence and remanded for resentencing. U.S. v. Carr, 303 F.3d 539 (4th Cir. 2002).
4th Circuit agrees that defendant intended to use detonators as weapons. (330) The district court enhanced defendant’s offense level by three levels under § 2K2.1(b)(1)(C) because he possessed ten firearms, including four detonators. Defendant argued that a detonator is not a firearm. The commentary to § 2K2.1 defines a firearm to include a “destructive device,” which is defined in 26 U.S.C. § 5845(f)(3) to include “any combination of parts either designed or intended for use in converting any device into a destructive device.” In determining whether components constitute a destructive device, the government must present evidence demonstrating that the defendant intended to use them “as a weapon.” Here, the government proved that defendant was the “enforcer” for a motorcycle club, a function that does not provide a legitimate reason or commercial purpose for the use of the detonators. An FBI agent testified that detonators are designed and manufactured to set off an explosive such as dynamite and that the four detonators in this case worked as they were designed. The Fourth Circuit ruled that this evidence was sufficient to support the court’s finding that defendant intended to use the detonators as weapons. U.S. v. Levenite, 277 F.3d 454 (4th Cir. 2002).
4th Circuit holds that use of semiautomatic weapon is a sentencing factor, not element of separate offense. (330) Defendants pled guilty to using or carrying a firearm in a crime of violence, 18 U.S.C. § 924(c). Section 924(c)(1)(B)(i) provides for a sentence of not less than 10 years if the firearm is a semiautomatic assault weapon. Relying on the Supreme Court’s decision in Castillo v. U.S., 530 F.3d 120 (2000), defendants argued that subsections under § 924(c)(1)(B) create elements of separate offenses that must be charged and proved beyond a reasonable doubt. Castillo held that Congress intended the firearm type-related words (such as machine-gun) used in § 924(c)(1) to refer to elements of separate, aggravated crimes rather than sentencing factors that authorize an enhanced penalty. The Fourth Circuit found that Castillo, which was based on a previous version of § 924(c), distinguishable, and affirmed defendants’ ten-year mandatory minimum sentences. In 1998, the statute was amended, and now no longer provides for a determinate statutory sentence. Instead, it require a sentence of “not less than 10 years” for the use of a semiautomatic weapon, and “not less than 30 years” for a machine gun. This is the language of a mandatory minimum sentence, to be imposed where a defendant has committed a base crime and certain aggravating circumstances are present. As a provision marking out a separate offense, § 924(c)(1)(B) would be incomplete, setting forth no determinate sentence or even any upper limit on sentencing. U.S. v. Harrison, 272 F.3d 220 (4th Cir. 2001).
4th Circuit approves departure for felon who brandished firearm in classroom. (330) Defendant, a convicted felon, brought a loaded handgun into a middle school classroom of students. Defendant told the teacher he was being pursued and asked for help. The teacher escorted him out of the room and persuaded him to accompany her to the principal’s office. Along the way, defendant grabbed the teacher and pointed the gun at her. Defendant was convicted of possessing a firearm in a school zone and being a felon in possession of a firearm. The district court departed upward under § 5K2.0 because defendant brandished a firearm in a crowded school classroom and in the hallway. The felon-in-possession guideline, § 2K2.1, does not distinguish the situation involving brandishing of the subject firearm from that where the weapon is passively possessed. U.S. v. Bellamy, 264 F.3d 448 (4th Cir. 2001).
4th Circuit holds that “brandishing” firearm is sentencing factor, not element, of firearm offense. (330) Under 18 U.S.C. § 924(c)(1)(A)(i), anyone who uses a firearm in relation to a crime of violence or a drug trafficking crime shall receive a mandatory minimum sentence of at least five years. Under subsection (ii), the mandatory minimum sentence is increased to seven years if the firearm is “brandished.” Defendant argued that the “brandished” clause does not set forth a sentencing factor, but rather an element of the offense that must be specifically charged in the indictment and proved beyond a reasonable doubt at trial. The Fourth Circuit disagreed. Section 924(c)(1)(A)(ii) provides for no statutory maximum sentence. The sentencing court’s finding that defendant “brandished” a firearm under subsection (ii) triggered a mandatory minimum sentence, but did not “increase[] the penalty … beyond the prescribed statutory maximum.” Apprendi v. New Jersey, 530 U.S. 466 (2000). As in McMillan v. Pennsylvania, 477 U.S. 79 (1986), the mandatory minimum provision was simply a permissible restriction on the sentencing judge’s discretion. U.S. v. Harris, 243 F.3d 806 (4th Cir. 2001), affirmed, Harris v. U.S., 536 U.S. 545 (2002), overruled by Alleyne v. U.S., 133 S.Ct. 2151 (2013).
4th Circuit requires further findings on whether defendant possessed gun “in connection with another felony offense.” (330) Defendant stole a machine gun that he knew was worth $1300. He gave the gun to Shively with the expectation that Shively would sell the gun and obtain cocaine base with the proceeds. Shively returned to defendant with $20 worth of cocaine base and without the gun. However, contrary to defendant’s expectations, Shively had not sold the gun. The district court applied a § 2K2.1(b)(5) enhancement because the firearm was used “in connection with another felony offense.” To constitute “another felony offense,” the second offense must be punishable by imprisonment for a term of exceeding one year. See Note 7 to § 2K2.1. The Fourth Circuit remanded for further findings. The evidence did not support a finding that defendant was involved in a conspiracy to distribute drugs. Simple possession of less than five grams of cocaine base constitutes a misdemeanor only and cannot serve as “another felony offense” under § 2K2.1(b)(5). The panel also rejected the government’s contention that any trade of a gun for drugs, irrespective of the type or amount, constitutes a violation of 18 U.S.C. § 924(c)(2). Moreover, even assuming trading the gun for an unknown quantity of cocaine base would constitute “another felony offense,” there was no evidence that defendant intended or believed that Shively would trade the machine gun to a third party in exchange for the drugs. U.S. v. Garnett, 243 F.3d 824 (4th Cir. 2001).
4th Circuit holds that § 924(c) amendments did not narrow scope of mandatory consecutive sentencing scheme. (330) The district court sentenced defendant to two 180-month concurrent terms for robbery and firearms violations, and a consecutive mandatory minimum 84-month term for being a felon in possession of a firearm, in violation of § 924(c). He argued that his sentence constituted improper double counting because the district court both enhanced his offense level under the armed career criminal guideline, § 4B1.4, and imposed the statutory mandatory minimum under § 924(c). The Fourth Circuit found no double counting problem. The district court did not violate § 2K2.4’s prohibition against double counting because it did not consider defendant’s firearm use in calculating the offense level for his robbery offense. The 1998 amendments to § 924(c), which provides for the mandatory consecutive sentences “except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law,” do not preclude consecutive sentences whenever another provision of law carries a greater mandatory minimum sentence than that imposed under § 924(c). Rather, the “except to the extent” language is designed to “link the remaining prefatory language in (c)(1)(A) to” the other subdivisions. The 1998 amendments to § 924 were not intended to narrow the scope of § 924(c)’s mandatory consecutive sentencing scheme. U.S. v. Studifin, 240 F.3d 415 (4th Cir. 2001).
4th Circuit holds that shooting a gun constitutes a “use of explosives.” (330) Defendant and an accomplice fired 15 rounds of ammunition into the home of a man they suspected of stealing from them. The district court used the aggravated property damage guideline, § 2K1.4 (property damage by use of explosives), to his conviction for destruction of a dwelling property. Defendant argued that the shooting did not constitute a “use of explosives” contemplated by § 2K1.4. The Fourth Circuit held that “property damage by use of explosives” under § 2K1.4, includes the damage caused by projectiles discharged from a firearm. Note 3 defines “explosives” as an “explosive, explosive material, or destructive device.” Although the guidelines do not define “explosive,” the term is defined by 18 U.S.C. § 844(j) to include “gunpowders, … or [a] device that contains any … combustible units … that ignition by … detonation of the … device … may cause an explosion.” Thus, the ammunition in a loaded handgun is an “explosive” under § 844(j), and also under § 2K1.4. After reviewing other offenses for which § 2K1.4 is the exclusive guideline recommended by the Sentencing Commission, the court agreed that a “use of explosives” under § 2K1.4 includes discharging a firearm. Davis v. U.S., 202 F.3d 212 (4th Cir. 2000).
4th Circuit bases enhancement on firearm used during relevant conduct. (330) In violation of a protective order, defendant lured his estranged wife to his house and threatened her with a .20 gauge shotgun. He was charged in state court with wanton endangerment. Incident to defendant’s arrest, police retrieved a loaded .22 caliber handgun from his house. Several days later, officers also seized from defendant’s house three additional firearms, including the shotgun he used to threaten his wife. Defendant pled guilty in federal court to possessing the .22 caliber handgun while subject to a protective order. Section 2K2.1(b)(5) provides for a four-level enhancement for using a firearm in connection with another felony offense. Defendant argued that the enhancement was improper because the firearm involved in his state charge for wanton endangerment (the .20 gauge shotgun) was not the same firearm described in his federal count of conviction (possession of the .22 caliber revolver). The Fourth Circuit held that the § 2K2.1(b)(5) enhancement was properly based on defendant’s relevant conduct in threatening his wife with a gun. Section 2K2.1 references the term “offense,” not merely “offense of conviction.” Under § 1B1.1, the term “offense” includes “the offense of conviction and all relevant conduct under § 1B1.3.” U.S. v. Bostic, 168 F.3d 718 (4th Cir. 1999).
4th Circuit rejects departure based on firearm guideline’s cross-reference to murder. (330) Defendants were convicted of drug and firearms offenses. Based on their murder of a co-conspirator, and following the cross-reference in § 2K.1(c)(1)(B), the district court based one defendant’s sentence on the first-degree murder guideline and the other on the second-degree guideline. Defendants had been acquitted in state court of the murder. The Fourth Circuit held that the district court lacked authority to depart based on the application of the § 2K2.1(c)(1)(B) cross-reference. The cross-reference requires that when a firearm is illegally possessed in connection with another offense in which death results, the court must use the homicide guideline if it would result in sentence greater than the firearm guideline. Thus, the guidelines recognize that applying the § 2K2.1(c)(1)(B) cross-reference will result in an enhanced guideline range. The extent of the increase (from 43 years to 55 years for one defendant, and from 115 months to 210 months for the other) was not so great as to violate due process. U.S. v. Fenner, 147 F.3d 360 (4th Cir. 1998).
4th Circuit rules gun was used “in connection with” sexual assault. (330) Defendant forced his way into his former girlfriend’s car, pointed a gun at her new boyfriend and ordered the girlfriend to drive. After a time, defendant ordered the boyfriend out. Later, defendant sexually assaulted the girlfriend. Defendant pled guilty to carjacking and firearms charges. The Fourth Circuit upheld a § 2K2.1(c) enhancement for using a firearm “in connection with” the sexual assault. The First, Ninth and Tenth Circuits hold that a weapon is used “in connection with” an offense if the weapon “facilitated or potentially facilitated” the offense. Defendant’s conduct satisfied this test. Although defendant did not brandish the gun during the assault, the victim was aware that he possessed the gun. The Fifth Circuit applies the standard in § 2D1.1(b)(1), but defendant also met this standard, because he possessed the gun, and failed to prove that it was “clearly improbable” that the gun was connected with the offense. The test used by the First, Ninth and Tenth Circuit is more consistent with the guidelines. U.S. v. Nale, 101 F.3d 1000 (4th Cir. 1996).
4th Circuit applies § 2A1.1 where death resulted from explosive. (330) Defendant sent an explosive to his business partner, intending to kill him. The explosive injured the partner and killed his son. Defendant was convicted of violating 18 U.S.C. § 844(i), maliciously destroying a building with an explosive. Section 2K1.4(c)(1) directs that when death results from the use of an explosive, the court is to apply the “most analogous” guideline. The Fourth Circuit agreed that § 2A1.1, the guideline for first degree murder, was the most analogous guideline since death resulted from the use of the explosive. This resulted in an offense level of 43. The district court was free to depart downward if defendant did not cause the death intentionally. However, defendant did not move for such a departure and one was not warranted because the district court found that the victim’s death was a premeditated killing in which defendant acted with malice. U.S. v. Gullett, 75 F.3d 941 (4th Cir. 1996).
4th Circuit holds 2K2.1(b)(5) does not require knowledge of specific felony intended by firearm recipient. (330) Defendant sold guns to a neighbor whom defendant knew distributed guns to drug dealers. He received a § 2K2.1(b)(5) enhancement for transferring a firearm with knowledge that it would be used in connection with another felony offense. The 4th Circuit held that § 2K2.1(b)(5) does not require the defendant to know the specific felony offense intended by the recipient of the firearm. It is sufficient that the firearm is transferred with knowledge, intent or reason to believe that it would be used in connection with another felony offense. Defendant had reason to believe that many of the firearms he sold were being transferred to people engaged in a continuing conspiracy to distribute narcotics. Thus, he knew that the guns were being used in connection with another felony offense. U.S. v. Cutler, 36 F.3d 406 (4th Cir. 1994).
4th Circuit holds that South Carolina involuntary manslaughter is a crime of violence. (330) Section 2K2.1(a)(2) provides for a penalty enhancement if the defendant has two previous felony convictions of a “crime of violence,” as defined under § 4B1.2. The 4th Circuit held that defendant’s South Carolina involuntary manslaughter was a crime of violence. Application note 2 to § 4B1.2 directly states that manslaughter is included within the definition of a crime of violence. Guidelines commentary that is interpretive or explanatory controls, so long as it is not clearly inconsistent with the guidelines or unconstitutional. Although note 2 does not differentiate between voluntary and involuntary manslaughter, it includes both. U.S. v. Payton, 28 F.3d 17 (4th Cir. 1994).
4th Circuit applies specific offense characteristic of creating substantial risk of injury or death. (330) Defendants burned down the mobile home of an interracial couple. The district court chose an 18-level specific offense characteristic under § 2K1.4(b)(1) for “knowingly creat[ing] a substantial risk of death or bodily injury.” Defendants argued that the court should have applied the 12-level specific offense characteristic under § 2K1.4(b)(2) for arson of a residence. The 4th Circuit upheld the use of the 18-level enhancement. Risk of death or bodily injury is not inherent in the arson of a residence, since an arsonist may burn an unoccupied dwelling or may burn a residence in a manner that does not create substantial risk of death or bodily injury. Here, it was a mere fortuity that the occupants of the mobile home escaped injury. U.S. v. Ramey, 24 F.3d 602 (4th Cir. 1994), abrogated on other grounds by Jones v. U.S., 529 U.S. 848, 120 S.Ct. 1904 (2000).
4th Circuit upholds consecutive sentence for using fire in commission of a felony. (330) Defendants were convicted of civil rights violations, arson and use of fire in the commission of a felony after they burned down the mobile home of an interracial couple. For the use of fire charge, defendants received a five-year sentence consecutive to their sentence for the other offenses. They argued that the consecutive sentence requirement in 18 U.S.C. § 844(h)(1) applies only to explosives, rather than fires. The 4th Circuit upheld the consecutive sentence. The language in § 844 referring to explosives is only an illustration. The statute clearly provides that the sentence imposed under § 844(h)(1) shall not be concurrent to any other term of imprisonment. U.S. v. Ramey, 24 F.3d 602 (4th Cir. 1994), abrogated on other grounds by Jones v. U.S., 529 U.S. 848, 120 S.Ct. 1904 (2000).
4th Circuit holds firearms cross-reference applies to an underlying state offense. (330) Defendant was convicted of being a felon in possession of a firearm. Section 2K2.1(c)(2) provides that if any offense was committed in connection with the firearm’s possession, the guideline for that underlying offense should be used if it would result in a higher offense level. Defendant committed an aggravated assault with his firearm, but the district court refused to apply the cross-reference, finding it was limited to federal crimes. The 4th Circuit reversed, concluding that the cross-reference applied to state as well as federal crimes. The Sentencing Commission did not exceed its mandate or violate principles of federalism to require a cross-reference to a state offense. The cross-reference does not federalize a state crime, but properly distinguishes between the culpability of a person who passively possesses a gun and one who also uses it. The adjustment is no more than a device for measuring the seriousness of the offense. U.S. v. Carroll, 3 F.3d 98 (4th Cir. 1993).
4th Circuit rules attempted murder guideline should apply to attempt to blow up husband. (330) Defendant pled guilty to four firearms offenses as a result of two instances where she attempted to blow up her ex-husband. Following cross-references in the firearms guidelines, the court applied guideline section 2X1.1. Relying on section 2S1.1(a), the district court found that because defendant intended to kill her ex-husband, the “object offense” was first degree murder. Defendant was sentenced accordingly, although the court departed downward from the offense level for first degree murder to the level for second degree murder. The 4th Circuit reversed, ruling that the district court should have applied the attempted murder guideline, section 2A2.1. Once the district court applied the attempt guideline (section 2X1.1), it then should have determined whether a specific guideline covered defendant’s attempted offense, i.e., the guideline for attempted murder. U.S. v. Dickerson, 956 F.2d 46 (4th Cir. 1992).
4th Circuit reverses sentence enhancement based upon defendant’s possession of 28 inert grenades. (330) Undercover agents sold defendant 30 grenades. Defendant was unaware that 28 of the grenades lacked powder and were incapable of being detonated. The district court increased defendant’s offense level under guideline § 2K2.2(b) for all 30 grenades. The 4th Circuit reversed, holding that the inert grenades were not destructive devices under § 2K2.2(b). The government failed to show as a factual matter that the powder in the two grenades was sufficient to arm all of the grenades. As a matter of law, the inert grenades were not destructive devices. A person cannot be deemed in possession of a “destructive device” if he does not possess all of the requisite parts or ingredients needed to activate the device. U.S. v. Blackburn, 940 F.2d 107 (4th Cir. 1991).
4th Circuit upholds determination that weapons were not possessed for sporting or collection purposes. (330) Defendant was convicted of being a felon in possession of a firearm. The 4th Circuit upheld the district court’s refusal to reduce defendant’s offense level under guideline § 2K2.1(b)(1) based on his contention that he possessed the firearms for sporting or collection purposes. Defendant sold a stolen semi-automatic assault rifle and three handguns with silver-tipped hollow-point ammunition to a federal agent, and advised him that one of the weapons was “hot.” He sold the guns for cash and did not complete transfer forms. Even given defendant’s evidence that he was a collector and frequently took target practice, the district court’s conclusion that defendant did not possess the weapons for sporting or collection purposes was not clearly erroneous. U.S. v. Smith, 914 F.2d 250 (4th Cir. 1990).
4th Circuit holds that defendant cannot be sentenced in excess of statutory maximum for separate convictions of possession and non-registration of explosive devices. (330) Defendant was convicted of possession of pipe bombs, unregistered firearms, possession of a firearm by a felon, making a false statement to obtain a firearm, and possession of pipe bombs by a felon. He was sentenced to 20 years for the possession and non-registration of each of two pipe bombs. The 7th Circuit held, and the government conceded, that the imposition of the 20-year total sentence was improper. The defendant could not be sentenced in excess of the statutory maximum of 10 years for each single device. U.S. v. Talbott, 902 F.2d 1129 (4th Cir. 1990).
4th Circuit holds that acquittal on bomb manufacturing count did not preclude enhancement for use of special skills. (330) Defendant was convicted of various firearms violations, including possession of bombs, but the jury acquitted him of manufacturing the pipe bombs. The district court enhanced his offense level two points under § 3B1.3 because he had exhibited special skills in changing his identity in order to purchase firearms and had exhibited special skills in manufacturing the pipe bombs themselves. The 7th Circuit affirmed the enhancement, holding that acquittal of an offense does not bar consideration of the conduct underlying the charge for purpose of sentencing. The sentence enhancement was not punishment for an offense for which the defendant had been acquitted. Rather, under the preponderance standard of proof applicable to sentencing matters, the evidence that he manufactured the bombs could be considered in imposing a heavier sentence for the offenses for which he was convicted, including possession of those bombs. U.S. v. Talbott, 902 F.2d 1129 (4th Cir. 1990).
4th Circuit upholds increase in offense level for defective bomb. (330) The sentencing court determined that the bomb which defendant placed in a rival’s car was dangerous and was placed there to harm, not to warn. The base offense level was increased by three levels under U.S.S.G. 2A2.2(b)(2)(C) for the “brandished or threatened use of a dangerous weapon.” The 4th Circuit affirmed, finding that although the bomb failed to go off because it was not properly grounded, it was still a dangerous weapon. The sentencing court’s determination that the bomb was not an attempt to warn was not clearly erroneous. U.S. v. Foster, 898 F.2d 25 (4th Cir. 1990).
4th Circuit holds two-level increase for “restraint of victim” was proper. (330) The defendant lit a pipe bomb in the bedroom and stood in front of the door and pushed the victim back as she tried to escape. The bomb blew up and injured them both. The Fourth Circuit upheld a two-level increase in sentence for “restraint of victim” under § 3A1.3. The court noted the physical restraint “was not an element of the offense, was not incorporated into the base offense level, and was not listed as a specific offense characteristic, any of which would have rendered the guideline inapplicable.” U.S. v. Stokley, 881 F.2d 114 (4th Cir. 1989).
5th Circuit rules that leaving halfway house was not crime of violence. (330) Defendant received an enhanced sentence under § 2K2.1(a)(4)(A) based on the district court’s finding that his prior federal escape conviction for leaving a halfway house was a crime of violence under § 4B1.2(a). Defendant argued that the Supreme Court’s opinion in Chambers v. U.S., 555 U.S. 122 (2009), a decision construing the ACCA, indicated that absconding from a halfway house does not present a serious potential risk of injury to another. Chambers has led other circuit courts to conclude that escape from a halfway house and other similar escapes are not “crimes of violence” within the meaning of § 4B1.2. The Fifth Circuit agreed with these opinions, noting that the characteristics of commitment to a halfway house differ from commitment to other penal facilities. Unlike some other escapes, leaving a halfway house does not require overcoming physical barriers, breaking locks on doors, or evading security personnel. “Escaping” from a halfway house does not typically “present a serious potential risk of physical injury” to others. U.S. v. Jones, __ F.3d __ (5th Cir. June 12, 2014) No. 12-40877.
5th Circuit reverses enhancement where no evidence that defendant possessed missing firearms. (330) Defendant, a convicted felon, worked at a gun store. After a break-in, the store owner realized that 12 firearms were unaccounted for, and reported the burglary. After the owner told defendant that the store had been burglarized, defendant returned a pistol he allegedly borrowed prior to the burglary. He later claimed to have made some inquiries “in the streets” and had information about who had the missing firearms. Defendant attempted to arrange a transaction for the missing guns, but was unable to procure any of them. He was convicted of being a felon in possession of a firearm, and possessing a stolen firearm. The district court applied an enhancement under § 2K2.1(b)(1)(B) for bartering between eight and 24 firearms. Defendant argued that there was no evidence to prove that he actually or constructively possessed the 11 firearms that were allegedly stolen and never recovered. The Fifth Circuit agreed, and vacated the enhancement. There was no evidence, direct or circumstantial, that defendant exercised physical control over these firearms. Although his taking the pistol at the same time as the burglary was a questionable coincidence, that coincidence did not constitute proof by a preponderance of the evidence. U.S. v. Hagman, 740 F.3d 1044 (5th Cir. 2014).
5th Circuit approves use of attempted murder cross-reference for attempted bombing. (330) Defendant, a national of Saudi Arabia who lived in the US, became committed to “jihadist operations.” He spent several months acquiring the chemicals necessary to manufacture a powerful explosive, and compiled a list of targets for bombing attacks. He was convicted of attempted use of a weapon of mass destruction, and sentenced to life imprisonment. He argued that the court erred when it applied the § 2K1.4 cross-reference to the “attempted murder” guideline because it was unclear whether he had ever identified a final bombing target. The § 2K1.4(c) (1) cross-reference applies if “the offense was intended to cause death or serious bodily injury.” The Fifth Circuit rejected the argument that definite targets were necessary under the § 2K1.4 cross-reference. Moreover, statements in defendant’s journals and emails revealed that he had considered many targets. The district court did not clearly err in finding that defendant’s attempted bombing “was intended to cause death or serious bodily injury.” U.S. v. Aldawsari, 740 F.3d 1015 (5th Cir. 2014).
5th Circuit holds that disassembled firearm was possessed in connection with another offense. (330) Police searched defendant and found cocaine. A later search of his house revealed drug paraphernalia, drug-manufacturing materials, and a dismantled 12-gauge shotgun. Defendant pled guilty to being a felon in possession of a firearm. The district court applied a § 2K2.1(b)(6)(B) enhancement based on defendant’s use or possession of a firearm in connection with another felony offense, namely, the state charge of possession of cocaine with the intent to deliver. Defendant contended that the dissembled state of the firearm, his lack of knowledge regarding reassembling it, and the absence of ammunition rendered the firearm useless in facilitating another offense. The Fifth Circuit upheld the enhancement. Despite his arguments, the close proximity of the firearm to the drug paraphernalia and drug-manufacturing materials made it plausible to conclude that defendant possessed the firearm in connection with another felony offense. U.S. v. Alcantar, 733 F.3d 143 (5th Cir. 2013).
5th Circuit approves upward departure for providing military-style assault weapons to drug cartels. (330) Defendant purchased guns for an organization involved in illegal firearm trafficking. Many of the guns defendant purchased were recovered from crimes scenes in Mexico. The district court departed upward from his 51-63 month guideline range to a sentence of 97 months, based on the type of firearms (military-type assault weapons), the number of firearms (substantially more than 25), and the fact that defendant’s actions led to eight murders in Mexico. The Fifth Circuit held that the 97-month sentence was both procedurally and substantively reasonable. The court did not commit procedural error in weighing some factors (such as the military nature of the guns, the number trafficked, and defendant’s role in arming the drug cartels) more heavily than others (such as the applicable guideline range and defendant’s limited criminal history). The court was not required to explain in more detail why it chose the precise sentence it chose. The sentence was substantively reasonable. U.S. v. Hernandez, 633 F.3d 370 (5th Cir. 2011).
5th Circuit holds that unauthorized entry of inhabited dwelling in Louisiana was crime of violence. (330) Defendant pled guilty to being a felon in possession of a firearm. The district court refused to apply an enhanced offense level for two prior crimes of violence, finding that defendant’s Louisiana conviction for unauthorized entry into an inhabited dwelling did not constitute a crime of violence. The Fifth Circuit disagreed and reversed. It was undisputed that the offense of unauthorized entry of an inhabited dwelling does not qualify as a crime of violence under § 4B1.2(a)(1) because it does not have as an element the use, attempted use, or threatened use of physical force. However, in U.S. v. Claiborne, 132 F.3d 253 (5th Cir. 1998), the court held that the offense qualified as a crime of violence under § 4B1.2(a)(2), finding the offense was similar to burglary even though it does not require the intent to commit a felony or any theft within the dwelling. A surprise confrontation with an intruder still is “laced with the potential for violence, regardless of whether the intruder is a burglar or merely an unauthorized entrant.” Even after the Supreme Court decisions in Begay and Chambers, Claiborne remains good law. U.S. v. O’Connor, 632 F.3d 894 (5th Cir. 2011).
5th Circuit upholds firearms trafficking enhancement. (330) Defendant purchased firearms for “El Mano,” a man who paid her $200 for each firearm that she purchased for him. She was convicted of making false statements to a licensed firearm dealer. She challenged a § 2K2.1(b)(5) enhancement for “engag[ing] in the trafficking of firearms,” arguing there was no evidence that she knew or had reason to believe that El Mano intended to use or dispose of the firearms illegally. The Fifth Circuit found no clear error in applying the enhancement. The clandestine nature of defendant’s dealings with El Mano, and the fact that she was paid $200 above the retail cost of each of the 25 guns she bought gave defendant reason to believe that the firearms were being purchased for an unlawful purpose. U.S. v. Lightfoot, 626 F.3d 1092 (9th Cir. 2010).
5th Circuit holds that “another felony offense” can include other explosives or firearms offenses. (330) Defendant purchased firearms for “El Mano,” a man who paid her $200 for each firearm that she purchased for him. She was convicted of making false statements to a licensed firearm dealer. She challenged a § 2K2.1 (b)(6) enhancement for transferring a firearm with knowledge that it would used in connection with another felony offense, arguing that illegally smuggling firearms into Mexico did not constitute “another felony offense.” The Fifth Circuit disagreed. Although several other circuits have agreed with defendant, these cases relied on an application note that was removed from the commentary by a 2006 amendment to the Guidelines. The commentary to the 2008 Guidelines now defines “another felony offense” as “any federal, state, or local offense, other than the explosive or firearms possession or trafficking offense.” The addition of the word “the” in the amendment indicated the Sentencing Commission no longer intended to exclude all explosives or firearms possession or trafficking offenses from the definition of “another felony offense” in § 2K2.1(b)(6). U.S. v. Juarez, 626 F.3d 246 (5th Cir. 2010).
5th Circuit infers that defendant had reason to believe guns would be smuggled into Mexico. (330) Defendant purchased firearms for “El Mano,” a man who paid her $200 for each firearm that she purchased for him. The Fifth Circuit upheld a § 2K2.1(b)(6) enhancement for transferring a firearm with knowledge that it would used in connection with another felony offense, rejecting defendant’s claim that she did not know or believe that any of the firearms she transferred to El Mano would be smuggled into Mexico. Defendant purchased over two dozen military-style assault rifles, for a man that she knew only as “El Mano,” Many of these purchases were repetitive. In every transaction, she delivered the weapons in Roma, Texas, one mile from the Mexican border. In some instances, she transported them from a gun store located 37 miles from Roma. Although there was no direct evidence establishing defendant’s knowledge with respect to the future use of the firearms she purchased, the district court was permitted to make “common-sense inferences from the circumstantial evidence.” U.S. v. Juarez, 626 F.3d 246 (5th Cir. 2010).
5th Circuit agrees that defendant possessed firearm in connection with stalking offense. (330) Police responding to a 911 call from Manley found defendant across the street from Manley’s house, in possession of a firearm. He eventually pled guilty to being a felon in possession of a firearm. The Fifth Circuit upheld a four-level increase under § 2K2.1(b)(6) for possessing the firearm in connection with another felony offense, in this case felony stalking under Louisiana law. At sentencing, the sheriff’s dispatcher testified that Manley made two 911 calls to request assistance and protection from defendant. The first call informed authorities that defendant had said he was on his way to Manley’s house to kill her, her granddaughter and himself. She made a second call shortly thereafter to report that defendant was attempting to enter the residence and was making verbal threats to kill Manley and her granddaughter. The deputy also testified that for three days, defendant had called Manley’s home several times a day, making threats against her and her granddaughter. U.S. v. Coleman, 609 F.3d 699 (5th Cir. 2010).
5th Circuit upholds increase for knowledge that guns would be used in another felony offense. (330) Defendant pled guilty to conspiracy to traffic and transfer firearms. The Fifth Circuit upheld a § 2K2.1(b)(6) enhancement based on the district court’s finding that defendant knew that the guns were being transferred to individuals engaged in illegal drug distributions in Chicago. Contrary to defendant’s claims, there was considerable evidence that defendant knew the guns would be used in other felony offenses. In addition, the case cited by defendant, U.S. v. Askew, 193 F.3d 1181 (11th Cir. 2010), does not stand for the proposition that a non-seller defendant is not subject to the § 2K2.1(b)(6) increase. Rather, Askew confirms that a non-seller’s offense level may be enhanced so long as she “knew or had reason to believe the guns would be used to commit another felony.” Here, defendant had as much knowledge about how the buyers would use the firearms the actual seller did. U.S. v. Longstreet, 603 F.3d 273 (5th Cir. 2010).
5th Circuit says defendant was not accountable for guns trafficked by her husband before she joined the conspiracy. (330) Defendant pled guilty to conspiracy to traffic and transfer firearms. Defendant’s husband trafficked over 300 guns to Chicago from 1998 to 2005. Based on this, the district court found that defendant’s offense involved over 200 firearms, triggering a ten-level increase under § 2K2.1(b)(1)(E). Defendant argued that she did not join the conspiracy until 2001, and that she could only be held accountable for the 45 guns she personally purchased. The Fifth Circuit held that defendant’s relevant conduct was not limited to the 45 guns she actually purchased. Defendant was accountable for “all reasonably foreseeable acts and omission of others in furtherance of … the same course of conduct or common scheme or plan as the offense of conviction.” § 1B1.3(a)(2). However, defendant’s relevant conduct did not include the conduct of co-conspirators prior to her joining the conspiracy. Although defendant and her eventual husband started dating in 1998, there was no evidence showing that she conspired with him prior to 2001. The district court’s application of § 2K2.1(b)(1)(E) lacked support. U.S. v. Longstreet, 603 F.3d 273 (5th Cir. 2010).
5th Circuit reverses “in connection with” increase, because gun and single rock of crack in vehicle did not support it. (330) During a search of defendant’s car, police found a gun and a single rock of crack cocaine. The gun was located on the driver’s seat and the cocaine on the floor behind the driver’s seat. Defendant was convicted of being a felon in possession of a firearm, and received a four-level enhancement under § 2K2.1(b)(6) for possession of a firearm “in connection with another felony offense.” The application notes now provide that in the case of a drug trafficking offense in which a firearm is found in close proximity to drugs, the enhancement automatically applies, because the presence of the firearm has the potential of facilitating these types of offenses. In contrast, for all other felony offenses that are not drug trafficking offenses, the enhancement only applies if the firearm facilitated, or had the potential of facilitating, the drug offense. The Fifth Circuit reversed the enhancement. The record was devoid of any evidence that defendant’s possession of the gun “facilitated, or had the potential of facilitating” the drug possession. At best, the government showed only that defendant possessed cocaine and a firearm at the same time. U.S. v. Jeffries, 587 F.3d 690 (5th Cir. 2009).
5th Circuit applies increase for altered or obliterated serial number even though number was still readable. (330) Defendant pled guilty to being a felon in possession of a firearm. The district court applied a four-level enhancement under § 2K2.1(b)(4) because it found that the firearm’s serial number had been altered or obliterated. Defendant challenged the enhancement on the grounds that he was not the one who “attempted to alter or obliterate the serial number” and because the serial number was actually readable. The Fifth Circuit upheld the enhancement. First, § 2K2.1(b)(4) has a strict liability standard and it does not require that the defendant be the one who obliterated or altered the serial number. Second, even if the serial number was readable, the district court found that it looked like someone “tried to file [it] off.” The panel ruled that for purposes of § 2K2.1(b)(4), a firearm’s serial number is “altered or obliterated” when it is materially changed in a way that makes accurate information less accessible. Here, the serial number of the gun defendant possessed had been materially changed in way that made its accurate information less accessible, and thus it had been “altered or obliterated” for purposes of § 2K2.1(b)(4). U.S. v. Perez, 585 F.3d 880 (5th Cir. 2009).
5th Circuit says firing weapon into the air in crowded area constituted “another felony.” (330) A witness told police she had witnessed defendant brandish a firearm, shoot it into the air, then shoot it into a group of people. Defendant pled guilty to being a felon in possession of a firearm. The district court applied a four-level enhancement under 2K2.1(b)(6) because it found that defendant possessed the firearm in connection with the commission of another felony. Defendant challenged the enhancement, noting that he was never charged with another offense, and the connected offense was only a misdemeanor under Texas state law. The Fifth Circuit upheld the enhancement. First, the offense qualified as a felony under Texas law, because a person who knowingly discharges a firearm at or in the direction of other individuals is guilty of a felony in the third degree. Defendant admitted firing his weapon in the air in downtown Corpus Christi at a time when the streets were filled with people. Second, whether defendant was ever charged with or convicted of committing the Texas state felony was irrelevant for purposes of § 2K2.1(b)(6). U.S. v. Perez, 585 F.3d 880 (5th Cir. 2009).
5th Circuit holds that cross-reference only applied if defendant knew her husband would use gun to shoot at pursuers. (330) When defendant’s husband escaped from prison, he called her to pick him up and to bring his handgun. She followed his instructions. When stopped by police, her husband fired a shot towards the officers. Defendant pled guilty to aiding and abetting the possession of a firearm by a convicted felon. Section 2K2.1(c)(1) directs the court to apply the guideline of another offense if the defendant transferred a firearm with “knowledge or intent that it would be used or possessed in connection with another offense.” Because the gun defendant transferred to her husband was used to fire at a police officer, the district court sentenced defendant for attempted murder. The Fifth Circuit held that the district court did not properly apply the cross-reference. If defendant transferred the firearm with the “knowledge or intent” that her husband would shoot at anyone who tried to stop him, then the cross-reference should be followed. However, if defendant only knew a firearm could potentially facilitate attempted murder, but did not know her husband would make such an attempt, then the cross-reference should not be followed. U.S. v. Johnston, 559 F.3d 292 (5th Cir. 2009).
5th Circuit holds that stalking was crime of violence. (330) Defendant pled guilty to being a felon in possession of a firearm, and received an enhanced offense level under § 2K2.1(a)(4)(A) based on his prior South Carolina convictions for stalking. The Fifth Circuit agreed that the stalking offense was a crime of violence under the so-called residual clause of § 4B1.2. The Supreme Court’s recent decision in Begay v. U.S., 128 S.Ct. 1581 (2008) did not preclude this finding. Begay interpreted the residual clause as covering only those crimes that are “roughly similar, in kind as well as in degree of risk posed” to the enumerated offenses of burglary, arson, extortion, or the use of explosives. Stalking meets this standard – criminal intent is clearly required by the statute. Although the statute could be violated by non-violent as well as violent methods, the district court examined the indictment and the judgment to find that defendant was charged with and convicted of “willfully, maliciously and repeatedly following or harassing the victims and making repeated threats to place the victims in reasonable fear of great bodily harm or bodily injury.” U.S. v. Mohr, 554 F.3d 604 (5th Cir. 2009).
5th Circuit holds that burglary under Texas statute that did not require intent was not generic burglary. (330) Defendant was sentenced as an armed career criminal based in part on the district court’s finding that his prior burglary convictions under Texas Penal Code §30.02(a)(3) were violent felonies. Section 30.02(a)(3) applies to one who “enters a building or habitation and commits or attempts to commit a felony, theft, or an assault.” The generic definition of burglary for §924(e) purposes involves “an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.” Taylor v. U.S., 495 U.S. 575 (1990). The Fifth Circuit held that burglary under Texas Penal Code §30.02(a)(3) did not qualify as generic burglary under the Taylor definition because it did not include the element of intent. Although the government argued that it was unclear whether defendant was convicted of burglary under §30.02(a)(1) or (3), the government had the burden of proving that defendant was convicted under a statute that satisfied the Taylor definition of generic burglary. U.S. v. Constante, 544 F.3d 584 (5th Cir. 2008).
5th Circuit affirms 45-year sentence for first-time offender despite Eighth Amendment claim, but criticizes prosecutor. (330) Defendant and her husband were convicted of drug charges and two counts of possessing firearms in furtherance of drug-trafficking crimes. Both received 548-month sentences. Because defendant was 53 at the time of sentence, she effectively received a life sentence. Because of the indictment, defendant was subject to mandatory minimum terms of 40 years (ten years for the drug charges, five years for the first gun charge, and 25 years for the second drug charge). However, there was no evidence that defendant brought a gun with her to any drug deal, that she ever used any of the guns, or that the guns ever left the house. The Fifth Circuit held that the 45-year sentence, while unduly harsh for someone with no prior convictions, did not violate the Eighth Amendment. But the panel noted that instead of charging defendant with two separate § 924(c) offenses, the prosecutor could have charged her with only one or could have chosen to charge her with the drug offenses and requested a two-level firearm enhancement. While there was nothing “legally improper” about the prosecutor’s charging decision, the prosecutor exercised his discretion “rather poorly.” U.S. v. Looney, 532 F.3d 392 (5th Cir. 2008).
5th Circuit says decision to charge separate firearm offense did not make sentence unreasonable. (330) Defendant was convicted of drug charges and possessing a firearm in furtherance of drug trafficking, in violation of 18 U.S.C. § 924(c). He argued that the Guidelines are “internally inconsistent” because the conduct of possessing a firearm in furtherance of a drug trafficking crime can either be prosecuted as an independent crime under § 924(c) or as a two-level enhancement under the drug guideline, U.S.S.G. § 2D1.1(b)(1). He argued that his applicable guideline range would have been 30-37 months if the firearm had only been considered as an enhancement rather than prosecuted as a separate offense. The 5th Circuit rejected this argument, noting that the government has great discretion in deciding whether, and which offenses to prosecute. The fact that defendant might have been subject to a less severe punishment if the government had made a different prosecutorial decision did not make his sentence infirm. The Guidelines recognize § 924(c)’s mandatory minimum punishment and they specifically account for the possibility that the same conduct could be punished either as a substantive count or as an enhancement. U.S. v. Molina, 530 F.3d 326 (5th Cir. 2008).
5th Circuit rules Booker does not permit sentence below statutory minimum, and affirms 370-month sentence. (330) Defendant was convicted of a variety of drug and weapons counts, including two counts of possessing a weapon during a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1). He argued that his 370-month sentence was unreasonable because it was inconsistent with the applicable Guidelines range and was greater than necessary to comply with the purposes of sentencing in 18 U.S.C. § 3553(a). He argued that several mitigating factors justified a lower sentence, including his young age and that this was his first brush with the law. The Fifth Circuit found no error. Defendant’s 370-month sentence was an aggregate sentence based on his conviction of six counts. He was sentenced to 10 concurrent months on four of the counts, 60 consecutive months on the first § 924(c) count, and 300 consecutive months on the second § 924(c) count. Both the 60-month and the 300-month consecutives sentences were statutory minimums, and the district court only had authority to impose a sentence below the statutory minimum if the government moved for a substantial assistance motion under § 3553(a) or defendant met the safety valve criteria under § 3553(f). Otherwise, post-Booker sentencing courts lack discretion to depart below the relevant statutory minimums. U.S. v. Harper, 527 F.3d 396 (5th Cir. 2008).
5th Circuit says Texas offense that included offer to sell was not controlled substance offense. (330) Defendant pled guilty to being a felon in possession of a firearm, and received an increase under § 2K2.1(a)(2) for having two prior convictions that were crimes of violence or a controlled substance offense. One prior offense was a Texas conviction for delivering a controlled substance, in violation of section 481.112(a) of the Texas Health and Safety Code. The Fifth Circuit held that court plainly erred in finding that this offense constituted a “controlled substance” offense under § 2K2.1. A conviction for delivering a controlled substance under § 481.112(a) covers a broader range of offenses than a “controlled substance offense” under § 2K2.1(a)(2). A defendant can be convicted under the Texas law for offering to sell a controlled substance, whereas the definition of a “drug trafficking offense” under the Guidelines does not include an offer to sell. Thus the prior conviction could have been merely for an offer to sell under § 481.112. The error was “plain” because the current law is clear that a mere offer to sell, absent possession, does not fit within the Guidelines’ definition of a controlled substance offense. U.S. v. Price, 516 F.3d 285 (5th Cir. 2008).
5th Circuit approves enhancement for possessing gun in connection with anther felony. (330) After an altercation between two women in a club, defendant drew a firearm and aimed it at the back of the head of Nguyen, the boyfriend of the one of the women. Without firing the gun, defendant walked away. Flavor, the boyfriend of the other woman and a friend of defendant’s, then walked over to Nguyen and shot him in the head, killing him. Defendant was convicted of being a felon in possession of a firearm. The district court applied a four-level enhancement under § 2K2.1 (b)(5) based on a finding that defendant used or possessed any firearm “in connection with another felony offense.” The Fifth Circuit affirmed. The evidence supported a finding that defendant committed an attempted aggravated assault, since he pointed the gun at Nguyen in the middle of a heated situation in which two people were fighting. U.S. v. Le, 512 F.3d 128 (5th Cir. 2007).
5th Circuit approves sentence more than twice the maximum recommended guideline sentence for felon in possession of firearm. (330) While searching defendant’s residence for illegal narcotics, they found an old, rusty, 12 gauge shotgun stashed in an outdoor shed. Defendant pled guilty to being a felon in possession of a firearm. The court sentenced defendant to 120 months, which was the statutory maximum penalty and more than twice the maximum of the advisory guideline range of 46-57 months. The court noted defendant’s long criminal history, his violence and anger problems, the dangers posed by his drunk driving, and his addiction to drugs. The court felt that defendant would not be able to beat his addiction or his anger problems by himself on the outside. Defendant challenged the reasonableness of the sentence for the first time on appeal. Although the Fifth Circuit expressed concerns about the reasonableness of a 120-month sentence for keeping a rusty shotgun in a shed, it found no plain error to warrant reversal. The court found that defendant’s long history of recidivism made his situation stand out from the norm. Any erroneous reliance on defendant’s socioeconomic status was neither plain nor so essential to the judgment a to affect defendant’s substantial rights. U.S. v. Peltier, 505 F.3d 389 (5th Cir. 2007).
5th Circuit holds that sexually molesting juvenile “by use of influence by virtue of control or supervision” is crime of violence. (330) Defendant was caught hunting in a wildlife refuge, and was convicted of being a felon in possession of a firearm. He had twice previously been convicted in Louisiana for sexually molesting a juvenile. The district court applied a recidivist enhancement for two prior crimes of violence. He claimed that the second molestation conviction was not a crime of violence because the indictment did not say whether sexual contact had occurred during this offense. The Fifth Circuit held that the Louisiana molestation statute was a crime of violence because it was a “forcible sex offense,” and affirmed. The Louisiana statute covered molestation by use of force, violence, intimidation “or by the use of influence by virtue of a position of control or supervision over the juvenile.” The panel concluded that the least amount of force required by the statute, “use of influence by virtue of control or supervision,” constituted a form of psychological intimidation that carries an implicit threat of force. The court did not err in concluding this was a “forcible sex offense” under the guidelines. U.S. v. Beliew, 492 F.3d 314 (5th Cir. 2007).
5th Circuit finds court failed to adequately articulate reasons for above-guideline sentence. (330) Defendant constructed a homemade bomb and mailed it to an Air Force personnel manager involved in discharging him from the Air Force. The bomb detonated, and the manager suffered numerous injuries. Defendant was convicted of four counts relating to the bombing, including a count under 18 U.S.C. § 924(c)(1) of use of a destructive device in relation to a crime of violence. The court sentenced defendant to concurrent 262-month terms on the guidelines counts, and a consecutive, non-guidelines term of 720 months for the § 924(c)(1) count. The court found that the guidelines did not take into consideration the seriousness of the offense, since the use of a bomb was an “act of terror.” The Fifth Circuit reversed. The court based the non-guidelines sentence primarily on the fact that this was a bomb-related crime. The court did not point to specific facts from the crime, other than the use of a bomb, to explain why 60 years, as opposed to the guideline recommendation of 30 years, was appropriate. While the court did not abuse its discretion in deciding to depart, the degree of departure here was substantial and “there must be more than mere lip service to the § 3553(a) factors to justify such a departure.” U.S. v. Walters, 490 F.3d 371 (5th Cir. 2007).
5th Circuit holds that factual impossibility did bar application of cross-reference for “another offense.” (330) Defendant sold a bomb to an undercover agent who told defendant she wanted to use the bomb to kill her ex-husband. Explosives experts confirmed that the bomb would have worked. Section 2K1.3(c)(1) provides that if the defendant possessed or transferred any explosive material with knowledge or intent that it would be used in connection with another offense, the court should apply § 2X1.1 (Attempt, Solicitation, Conspiracy) in respect to that other offense if it would result in a greater offense level. The government argued that § 2A1.2, the guideline for attempted murder, should be applied because defendant knew that the bomb was going to be used to commit murder. The district court refused to apply the cross-reference, ruling that because this was a sting operation, there was no commission or attempted commission of another offense. The Fifth Circuit reversed, holding that the court legally erred in determining that factual impossibility rendered the application of the guideline inappropriate. Factual impossibility is not a defense to a charge of attempt. U.S. v. Rankin, 487 F.3d 229 (5th Cir. 2007).
5th Circuit holds that defendant qualified as unlawful user of controlled substance. (330) Defendant was convicted of possession of a firearm with an obliterated serial number. The district court classified defendant as a “prohibited person” because he was an “unlawful user of a controlled substance.” Based on this classification, the court increased his offense level under § 2K2.1. The Fifth Circuit agreed that defendant qualified as an unlawful user. He admitted daily use of marijuana from age 13 until August 2004, and the recreational use of cocaine at age 13. He tested positive for marijuana use in April 2005. Thus, because he followed a pattern of use over an extended period of time, he qualified as an unlawful user of a controlled substance. U.S. v. McCowan, 469 F.3d 386 (5th Cir. 2006).
5th Circuit holds that § 3553(e) applies to mandatory minimum sentences under § 924(c) (1). (330) Defendant pled guilty to drug charges, and to possessing a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c). The government filed motions under § 5K1.1 and 18 U.S.C. § 3553(e) for a downward departure from the Sentencing Guidelines and the statutory minimum on both counts. The district court granted both motions, but ruled that it had no authority to depart below the statutory minimum of § 924(c)(1), so the court sentenced defendant to the statutory minimum of 60 months, to run consecutively with the sentence imposed on the drug count. The Fifth Circuit held that § 3553(e) applies to mandatory minimum sentences under § 924(e). A government motion made pursuant to § 3553(e), requesting that the court depart form the statutory minimums of § 924(e)(1), gives the district court the authority to depart from the § 924(c)(1) mandatory minimum. U.S. v. James, 468 F.3d 245 (5th Cir. 2006).
5th Circuit upholds enhancement for committing assault while possessing firearm. (330) Defendant’s girlfriend told police that the couple had argued and that defendant had pushed her to the ground, brandished a revolver, and fired one round into the air. Defendant was convicted of being a felon in possession of a firearm. The district court applied a § 2K2.1(b)(5) enhancement for using or possessing the firearm in connection with another felony offense. The court found that defendant’s conduct constituted felonious aggravated assault under Texas law. The Fifth Circuit affirmed. The court applied the increase based in part upon the undisputed fact that defendant fired his pistol after pushing his girlfriend during a heated argument. Defendant did not provide a reason for firing the gun, and the court could not discern a reason other than to threaten or intimidate. There was adequate support for a finding that defendant’s conduct constituted an aggravated assault. U.S. v. Jackson, 453 F.3d 302 (5th Cir. 2006).
5th Circuit holds that camp house occasionally used by defendant was a “dwelling” under the guidelines. (330) Defendant was convicted of charges relating to his involvement in an arson scheme to defraud an insurance company. The building burned was a camp house that had a roof, walls, and furnishings, including a television, microwave, and several beds. Defendant’s friends lived in the structure for an extended period (between three and five months) ending just months before the fire. Although the friends left the property is a dilapidated condition, most of the damages had been repaired by the time of the fire. Thus, the First Circuit held that the camp house constituted a “dwelling” under the guidelines. A “dwelling” is “an enclosed space, permanent or temporary, in which human beings usually stay, lodge, or reside.” Although a dwelling can lose its character as such by deterioration, vacancy, altered use, or otherwise, that point in time had not been reached here. U.S. v. Ingles, 445 F.3d 830 (5th Cir. 2006).
5th Circuit holds that locking child in a closet was crime of violence. (330) The district court sentenced defendant under § 2K2.1(a)(2) because it found that his previous conviction for unlawful restraint of a person less than 17 years of age was a crime of violence. At issue was whether the offense qualified under the residual clause of § 4B1.2(a)(2) because it “otherwise involves conduct that presents a serious potential risk of physical injury to another.” The information charged that defendant “by force, intimidation, and deception” locked a child in a closet. Defendant argued that the bill of information did not reveal whether he pled guilty to restraining a person by force, intimidation, or deception. The Fifth Circuit found this irrelevant, since even if defendant locked the child in a closet by means of deception, the offense was still a crime of violence. A serious potential risk of injury is created when a child is confined without his or her consent. Children are more vulnerable than adults, and a child locked in a closet is at risk for dehydration, malnourishment, infection, and physical injuries in escape attempts. U.S. v. Riva, 440 F.3d 722 (5th Cir. 2006).
5th Circuit holds that variance above guideline range was not unreasonable. (330) Defendant pled guilty to being a felon in possession of a firearm. The district court found that defendant’s guideline range of 21-27 months did not adequately reflect his criminal history or parole status at the time of the offense, and imposed a 60-month sentence. The court found that the guideline range did not adequately take into account defendant’s (1) release on parole less than one month before the offense; (2) three drug convictions; and (3) three juvenile convictions, starting at age nine. The Fifth Circuit affirmed the variance. The court properly followed the procedure for imposing a non-guideline sentence, and the sentence reflected the § 3553(a) factors. Although defendant’s criminal history calculation recognized his status as a parolee at the time of the offense, the court noted that defendant had been released from prison “less than a month” beforehand, a temporal distinction which related to the history and characteristics of defendant. 18 U.S.C. § 3553(a)(1). U.S. v. Smith, 440 F.3d 704 (5th Cir. 2006).
5th Circuit applies terrorism enhancement to arson of municipal building. (330) Defendant threw a homemade explosive device, a “Molotov cocktail,” into a municipal building in Texas, causing an explosion and an ensuing fire that severely damaged the building. He pled guilty to violating 18 U.S.C. §§ 844(i) and 924(c)(1). The Fifth Circuit upheld the application of § 3A1.4, which provides for a variety of sentencing enhancements if the offense “involved, or was intended to promote, a federal crime of terrorism.” The conduct need not transcend national boundaries – all that is required is that one of the enumerated offenses was “calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct.” Defendant testified that his sole intent was to destroy evidence that related to his father’s arrest. However, defendant had himself been arrested twice within a few days prior to the fire by the local police, and 24 hours before the offense, defendant was held in the same room in which he started the fire. A retaliation charge was brought against defendant for threatening to kill a police officer. This evidence was sufficient to support a finding that defendant was motivated to start the fire by an intent to retaliate against or to intimidate the officers who had arrested him and were pursuing charges against his father. U.S. v. Harris, 434 F.3d 767 (5th Cir. 2005).
5th Circuit says Fanfan error was not harmless. (330) In the 5th Circuit, Booker error is found where the district court applied the mandatory guidelines and enhanced a defendant’s sentence on the basis of facts neither admitted by him nor found by a jury beyond a reasonable doubt, in violation of the Sixth Amendment. See U.S. v. Villegas, 404 F.3d 355 (5th Cir. 2005). The circuit finds Fanfan error where the district court applied the mandatory guidelines to enhance a defendant’s sentence absent any Sixth Amendment error. See U.S. v. Martinez-Lugo, 411 F.3d 597 (5th Cir. 2005). The Fifth Circuit ruled that the Fanfan error committed here was not harmless. Defendant pled guilty to two firearms charges, one carrying a guideline range of 15-21 months and the other requiring a mandatory consecutive 60-month sentence. The district judge noted that the 75-month he was required to impose was “unfairly severe.” In response to counsel’s comment that the guidelines might be declared unconstitutional, the court stated, “in the exercise of my unfettered discretion, I would impose a 60-month sentence. That’s an alternative and it’s only in the event the guidelines are declared unconstitutional. In total.” The Fanfan error was prejudicial to defendant, because the mandatory nature of the guidelines at the time defendant was sentence forced the district court impose at least the minimum 15-month term for count 1, in addition to the statutorily required 60-month consecutive sentence on count 2. U.S. v. Walters, 418 F.3d 461 (5th Cir. 2005).
5th Circuit holds that sawed-off shotguns were “destructive devices.” (330) Defendants pled guilty to possession of an unregistered firearm. They admitted to possessing either a 12-gauge or a 16-gauge sawed-off shotgun. The Fifth Circuit upheld the district court’s finding that the sawed-off shotguns were “destructive devices” under § 2K2.1(b)(3). Note 4 to § 2K2.1 defines a destructive device to include “any type of weapon which will … expel a projectile by the action of an explosive or other propellant, and which has any barrel with a bore or more than one-half inch in diameter.” The panel took judicial notice that both a 12-gauge shotgun and a 16-gauge shotgun have bore diameters in excess of one-half inch. Consequently, the sawed-off shotguns possessed by the defendants each met the guideline definition of “destructive device.” U.S. v. Henry, 417 F.3d 493 (5th Cir. 2005).
5th Circuit says defendant who used fraudulent documents to purchase gun did not possess gun “in connection with” use of fraudulent ID. (330) Defendant purchased a firearm at a gun show, submitting three forms of identification, including a fraudulent resident alien card. He pled guilty to being an alien in unlawful possession of a firearm. The district court found that defendant possessed the firearm in connection with the use of fraudulent immigration documents, and applied a § 2K2.1(b) (5) enhancement. The Fifth Circuit reversed, holding that defendant did not possess the firearm “in connection with” the use of the fraudulent documents. Section 2K2.1(b)(5) applies only when the defendant’s use or possession of the firearm may have facilitated or made more dangerous the other felony offense. Defendant’s possession of a firearm did nothing to facilitate his use of the fraudulent identification card or to make it a more dangerous crime. Defendant did not possess the firearm at the time he used the fraudulent documents. He presented the documents one days, and then returned to the show the next day to take possession of the gun. Because the district court’s misapplication of the guidelines required a remand, the panel did not consider defendant’s argument that his Sixth Amendment rights were violated. U.S. v. Villegas, 404 F.3d 355 (5th Cir. 2005).
5th Circuit upholds cross-reference to guideline for second-degree murder, not involuntary manslaughter. (330) Police pursued defendant’s truck as it left a local bar. After the truck stopped in a field, shots were fired at the police car, and an officer was killed. Defendant was convicted of possessing firearms and ammunition while subject to a domestic restraining order. He argued that the district court improperly applied U.S.S.G. § 2K2.1(c)(1)(B)’s cross-reference provision when it used the guideline for second degree murder (§ 2A1.2) rather than the guideline for involuntary manslaughter (§ 2A1.4). Based on the factual findings made by the district court at sentencing (which defendant did not argue were clearly erroneous), the Fifth Circuit ruled that the district court did not err in applying the second-degree murder guideline. By intentionally firing his gun at the police officer’s cruiser, which defendant likely knew to be occupied, defendant displayed the requisite extreme recklessness and disregard for human life that constitutes malice under federal law sufficient for a finding of second-degree murder. The district court’s use of a lower standard of proof than beyond a reasonable doubt did not violate defendant’s Fifth Amendment rights. The fact that defendant was acquitted of capital murder in state court did not mean that he did not commit second-degree murder under federal law. U.S. v. Hicks, 389 F.3d 514 (5th Cir. 2004).
5th Circuit holds that lack of scienter for stolen firearm enhancement did not violate due process. (330) Section 2K2.1 establishes base offense levels for a wide variety of firearms offenses. Section 2K2.1(b)(4) requires a two-level increase if the firearm was stolen. Note 19 states that the subsection (b)(4) increase applies “whether or not the defendant knew or had reason to believe that the firearm was stolen.” This enhancement may be applied without a showing that defendant had knowledge that the firearm was stolen. See U.S. v. Singleton, 946 F.2d 23 (5th Cir. 1991). Moreover, because the adjustment occurs during sentencing when the court’s discretionary authority is especially broad, this adjustment does not offend due process. The Fifth Circuit rejected defendant’s constitutional challenge to his § 2K2.1(b)(4) increase. U.S. v. Williams, 365 F.3d 399 (5th Cir. 2004).
5th Circuit finds no evidence that defendant was in constructive possession of gun found in wife’s purse. (330) Defendant and his wife were arrested in a motel room. Defendant produced a false identification card and apprised the officers of two firearms in the room – a 9 mm pistol located on a window sill, and a pistol found in a bag belonging to defendant. He pled guilty to being a felon in possession of a firearm. At sentencing, the court found that defendant was in constructive possession of a third pistol seized from his wife’s purse, and applied an enhancement under § 2K2.1(b)(1)(A) for an offense “involv[ing] between three and seven firearms.” The Fifth Circuit reversed, finding insufficient evidence that defendant was in constructive possession of the third pistol. The facts did not support an inference that defendant had knowledge or, and access to, the pistol in his wife’s purse. The gun was not in plain view, defendant’s wife, rather than defendant, disclosed the location of the gun, and defendant expressed his belief that the room contained two, rather than three, firearms. U.S. v. Houston, 364 F.3d 243 (5th Cir. 2004).
5th Circuit says forged documents seized from same room as guns were not possessed “in connection with” firearm offense. (330) Defendant and his wife were arrested in a motel room. Defendant produced a false identification card and apprised the officers of two firearms in the room. He pled guilty to being a felon in possession of the firearms. The district court applied a § 2K2.1(b)(5) increase on the grounds that defendant possessed the firearms in connection with another felony – drug possession and forgery of a government instrument. The Fifth Circuit reversed. Defendant was not in felonious possession of a controlled substance. The minimal amount of marijuana seized, 12 grams, was insufficient to support a felony conviction under Texas or federal law. Also, there was no evidence that the firearms were possessed “in connection with” the forgery. The fact that the guns and the forged government instruments were seized from the same motel room was not sufficient. U.S. v. Houston, 364 F.3d 243 (5th Cir. 2004).
5th Circuit holds that statutory rape is not a crime of violence. (330) Defendant was convicted of being a felon in possession of a firearm, and received an enhanced offense level under § 2K2.1 (a)(4)(A) because the court found that defendant’s prior conviction for statutory rape constituted a crime of violence. At the time Note 5 directed a court to the definition of crime of violence in § 4B1.2(a). The Fifth Circuit held that defendant’s prior conviction under Texas law for statutory rape was not a crime of violence. Subsection (a)(1) of § 4B1.2 was plainly inapplicable because “use of force” is not an element of the crime of statutory rape as defined by Texas. A offense is a crime of violence under § 4B1.2(a)(2) only if, from the face of the indictment, the crime charged or the conduct charged presents a serious potential risk of physical injury to a person.” Neither the conduct alleged in the indictment nor the nature of the crime charged in any way indicated that defendant’s statutory rape victim was 14 years old. Thus, the district court erred by considering the victim’s actual age as stated in a sex offender database. The least culpable conduct satisfying the count of conviction (consensual sexual intercourse between a 20-year old male and a female a day under 17, free of aggravating circumstances) did not present a serious potential risk of physical injury. U.S. v. Houston, 364 F.3d 243 (5th Cir. 2004).
5th Circuit holds that possession of additional firearms was relevant conduct. (330) On January 18, 2001, police searching defendant’s house in connection with a check forging scheme found a pistol and a sawed-off shotgun. He pled guilty to being a felon in possession of a firearm. On July 1, 2001, police found an additional handgun in a closet along with methamphetamine lab equipment. On September 5, 2001, police found an assault rifle in defendant’s motel room. At sentencing on the felon in possession charge, the district court increased defendant’s offense level under U.S.S.G. § 2K2.1(b)(1)(A) because the offense involved three to four firearms, and by four under § 2K2.1(b)(5) because the handgun and assault rifle were possessed in connection with another felony offense, the manufacture of methamphetamine. The Fifth Circuit held that the district court did not err in finding that all instances of defendant’s firearm possession were relevant conduct. Defendant possessed four firearms in three separate occasions within a nine-month period. He possessed all four firearms after a felony conviction. Defendant’s pattern of behavior of possessing firearms was similar and regular, and the time period between the offenses permitted a conclusion that the firearms were part of an ongoing series of offenses. U.S. v. Brummett, 355 F.3d 343 (5th Cir. 2003).
5th Circuit holds that motel remained dwelling during three-month seasonal vacancy. (330) Defendant was convicted of arson in connection with an intentional fire at a motel she owned. She argued that the motel was not a “dwelling” within the meaning of § 2K1.4(a)(1)(B) because it was not occupied during the three-month seasonal vacancy in which the arson took place. The Fifth Circuit held that a hotel room counts as a “dwelling” under § 2K1.4(a)(1)(B) regardless of whether it is occupied at the time of the crime. The nature of the motel as a dwelling did not change during its three-month seasonal vacancy. This case was distinguishable from U.S. v. Jackson, 22 F.3d 583 (5th Cir. 1994), which held that a building that had been vacant for seven years was not a dwelling. There is a marked difference between a seven-year abandonment and a three-month seasonal vacancy. U.S. v. Smith, 354 F.3d 390 (5th Cir. 2003).
5th Circuit holds that elements of burglary of building were insufficient to establish crime of violence. (330) Guideline § 2K2.1(a)(4)(A) provides for an enhanced offense if a defendant is convicted of possession a weapon after sustaining a felony conviction of a “crime of violence.” The district court held that defendant’s prior Texas state conviction for burglary of a building qualified as a crime of violence and sentenced defendant accordingly. However, the statutory elements of burglary of a building do not categorically constitute a crime of violence. U.S. v. Turner, 305 F.3d 349 (5th Cir. 2002). Unless something outside of the indictment or judgment of conviction is considered, defendant’s burglary conviction could not be considered a crime of violence. Although the government urged the court to look to the PSR, U.S. v. Charles, 301 F.3d 309 (5th Cir. 2002) (en banc) proscribes the examination of anything other than the indictment, which was not applicable to the case, and the elements of the crime of conviction. The PSR may not serve as the basis for finding that a prior conviction was of a crime of violence. The 5th Circuit vacated defendant’s enhanced sentence. U.S. v. Turner, 349 F.3d 833 (5th Cir. 2003).
5th Circuit holds that “another felony” enhancement is not limited by relevant conduct guideline. (330) Defendant was convicted of being a felon in possession of a firearm, and received a four-level increase under § 2K2.1(b)(5) because defendant possessed a firearm in connection with another crime, the King shooting. Defendant argued that the increase was improper because the King shooting was too far removed in time and too different in type to be considered relevant conduct. The Fifth Circuit held that § 1B1.3’s relevant conduct limits do not apply to § 2K2.1(b)(5). In U.S. v. Gonzales, 996 F.3d 88 (5th Cir. 2003), the court found that § 1B1.3 does not restrict the application of § 2K2.1(c)(1), which provides that when a firearm is used or possessed in connection with another offense, the offense level is increased by application of other, specified guidelines provision. Gonzales reasoned that § 2K2.1(c)’s “unlimited references to ‘another offense,’ indicates that it is not restricted to offenses which would be relevant conduct but embraces all illegal conduct performed or intended by defendant concerning a firearm involved in the charged offense.” There is no logical basis for applying the relevant conduct restriction to § 2K2.1(b)(5) when the restriction does not apply to § 2K2.1(c). U.S. v. Outley, 348 F.3d 476 (5th Cir. 2003).
5th Circuit rejects claim that amount of drugs possessed was too small to be possessed “in connection with” firearm. (330) Defendant was convicted of being a felon in possession of a firearm, and received a four-level increase under § 2K2.1(b)(5) for using or possessing the firearm “in connection with another felony offense.” Defendant argued that the quantity of drugs seized was too minute for anything other than personal use and that the government failed to establish a connection between the firearms and the drugs. The Fifth Circuit rejected this argument, noting that it had rejected a similar argument in U.S. v. Condren, 18 F.3d 1190 (5th Cir. 1994). Section 2K2.1(b)(5) does not specify that a certain amount of drugs are required to support the enhancement. Condren also rejected defendant’s argument that the phrase “in connection with” should be interpreted as equivalent to the phrase “in relation to” as featured in 18 U.S.C. § 924(c). Section 2K2.1(b)(5) “mandates an enhancement even if the defendant only possesses a firearm in connection with any other felony.” U.S. v. Washington, 340 F.3d 222 (5th Cir. 2003).
5th Circuit holds that unlawful possession of a machine gun is a crime of violence. (330) A defendant who is convicted of being a felon in possession of a firearm should receive an enhanced offense level of 20 if the current offense was committed after a conviction for a crime of violence. U.S.S.G. § 2K2.1(a)(4)(A). The district court refused to classify defendant’s prior conviction for the unlawful possession of a machine gun as a crime of violence. The Fifth Circuit reversed, holding that the offense of unlawfully possessing a machine gun in violation of 18 U.S.C. § 922(o) is a crime of violence because it constitutes conduct that presents a serious risk of physical injury to another. This risk is presented by the inherently dangerous nature of machine guns, a determination that is evidenced by Congress’s decision to regulate the possession and transfer of this specific type of firearm. Defendant’s argument that “possession” is not “conduct” was foreclosed by caselaw. The fact that § 922(o) contains a “grandfather clause” that permits citizens to lawfully possess certain older machine guns was irrelevant. U.S. v. Golding, 332 F.3d 838 (5th Cir. 2003).
5th Circuit requires examination of indictment to see if unauthorized use of car was crime of violence. (330) Defendant pled guilty to being a felon in possession of a firearm. Relying on U.S. v. Jackson, 220 F.3d 635 (5th Cir. 2000), the district court applied an enhanced offense level under U.S.S.G. § 2K2.1(a)(4)(A), finding that defendant’s prior conviction for Unauthorized Use of a Motor Vehicle (UUMV) was a crime of violence. Jackson relied on U.S. v. Galvan-Rodriguez, 169 F.3d 217 (5th Cir. 1999), a case interpreting the term crime of violence under 18 U.S.C. § 16(b). However, in U.S. v. Charles, 301 F.3d 309 (5th Cir. 2002), the Fifth Circuit en banc overruled Jackson and limited the holding of Galvan-Rodriguez to § 16(b) cases. Charles ruled that the term “crime of violence” for firearms sentences is to be interpreted solely under U.S.S.G. § 4B1.2(a) and its commentary. Because Charles held that vehicle theft is not a crime of violence, it was likely that defendant’s UUMV offense could not be considered a crime of violence. However, Charles also held that the face of the indictment should be examined. In this case, defendant’s state indictment for UUMV was not in the record. Because the indictment should be reviewed, the Fifth Circuit vacated the sentence and remanded for resentencing. U.S. v. Lee, 310 F.3d 787 (5th Cir. 2002).
5th Circuit holds that possession of sawed-off shotgun is a crime of violence. (330) Defendant pled guilty to possession a firearm as a convicted felon. Guideline § 2K2.1(a)(2) provides for an enhanced offense level if defendant committed the current offense with at least two felony convictions of either a crime of violence or a controlled substance offense. The Fifth Circuit held that defendant’s Texas conviction for knowingly possessing a sawed-off shotgun constituted a crime of violence under the guidelines. “[T]he primary reason that unregistered possession of [a weapon listed in the NFA, i.e. a sawed-off shotgun] is a crime is the virtual inevitability that such possession will result in violence.” U.S. v. Jennings, 195 F.3d 795 (5th Cir. 1999). Possession is conduct. Use for violence is the primary purpose for a sawed-off shotgun. Thus, violence is more likely than not to occur from unlawful possession of a sawed-off shotgun. Thus, it constitutes conduct that, by its nature, poses a serious potential risk of physical injury to another, and is a crime of violence under § 4B1.2(a). U.S. v. Serna, 309 F.3d 859 (5th Cir. 2002).
5th Circuit remands for crime of violence finding where charging document was not in the record. (330) The district court found that defendant’s prior conviction for burglary of a building was a crime of violence under § 2K2.1 (a)(4)(a), relying in part on case law concluding that a felony burglary of a nonresidential building was a crime of violence as defined in 18 U.S.C. § 16(b). However, under U.S. v. Charles, 301 F.3d 309 (5th Cir. 2002), § 16(b) cases can no longer be used in determining what constitutes a crime of violence under § 2K2.1; a court must focus only on USSG § 4B1.2 and its accompanying commentary. The offense did not have as an element the use or threatened use of physical force, and therefore it did not qualify under § 4B1.2(a)(1). The crime did not involve explosives nor was it listed in the guidelines under § 4B1.2(a)(2). Therefore, it only qualified as a crime of violence if the offense “otherwise involved conduct that present[ed] a serious potential risk of physical injury to another.” However, the charging instrument pertaining to the defendant’s prior conviction was not in the record. Because the guidelines and case law require that for this part of the analysis, the Fifth Circuit remanded for resentencing. The district court can then make the required determination whether the conduct set forth in the count of conviction “presents a serious potential risk of physical injury to another.” U.S. v. Turner, 305 F.3d 349 (5th Cir. 2002).
5th Circuit reverses itself and holds that simple motor vehicle theft is not a crime of violence. (330) Defendant was convicted of being a felon in possession of a firearm. The district court found that defendant’s prior conviction for automobile theft was a crime of violence, and imposed an enhanced offense level under § 2K2.1(a)(6). A Fifth Circuit panel, considering itself bound by U.S. v. Jackson, 220 F.3d 635 (5th Cir. 2000) affirmed. See U.S. v. Charles, 275 F.3d 468 (5th Cir. 2001), rehearing en banc granted, U.S. v. Charles, 284 F.3d 567 (5th Cir. 2002), and on rehearing en banc, U.S. v. Charles, 301 F.3d 309 (5th Cir. 2002). Jackson held that the unauthorized use of a motor vehicle is a crime of violence under § 4B1.2(a)(2). However, Jackson relied on U.S. v. Galvan-Rodriguez, 169 F.3d 217 (5th Cir. 1999), an immigration case that held that unauthorized use of a car is a crime of violence under 18 U.S.C. § 16(b). However, § 16 and USSG § 4B1.2(a) are different, and what qualifies as a crime of violence under one does not necessarily qualify under the other. On rehearing en banc, the Fifth Circuit held that simple motor theft, under Texas law, is not a crime of violence. A crime is only a crime of violence under § 4B1.2(a)(2) only if, from the face of the indictment, the crime charged presents a serious potential risk of injury to a person. From the face of defendant’s indictment, it could not be said that his conduct presented such a risk. His conduct presented a risk of injury to property, the car, but there did not present a serious potential risk of physical injury to another person. U.S. v. Charles, 301 F.3d 309 (5th Cir. 2002) (en banc).
5th Circuit holds that crime of violence under firearm guideline refers to definition in § 4B1.2(a). (330) Guideline § 2K2.1, which applies to the unlawful possession of a firearm, contains an enhanced base offense level of 20 if the defendant has a previous felony conviction for a “crime of violence.” § 2K2.1(a)(4)(A). Application Note 5 to § 2K2.1 refers to § 4B1.2 (a) and its Application Note 1 for the definition of “crime of violence.” A slightly different definition of “crime of violence” appears in 18 U.S.C. § 16. While § 16(a) and § 4B1.2(a)(1) are virtually identical, § 16(b) and § 4B1.2(a)(2) are clearly different. For example, § 16(b) applies to the use of force against person and property, whereas § 4B1.2(a)(2) only applies to conduct that presents a serious potential risk of physical injury to another persons. Nevertheless, in the past, courts have used § 16(b) cases to interpret § 4B1.2(a)(2) case, and vice-versa. The Fifth Circuit held that the “crime of violence” determination under the firearm guideline is to be made using only the definition in § 4B1.2(a) and its accompanying commentary. What qualifies as a crime of violence under § 16(b) does not necessarily qualify under § 4B1.2(a), and vice versa. To the extent prior cases have conflated the § 16(b) and § 4B1.2(a)(2) definitions of “crime of violence,” they are overruled. U.S. v. Charles, 301 F.3d 309 (5th Cir. 2002) (en banc).
5th Circuit reaffirms that discharge of weapon is sentencing factor, not element of offense. (330) Defendant was convicted of possession of a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1) (A). The district court enhanced defendant’s sentence because he discharged the weapon. Defendant contended that discharging the firearm was a separate offense from using and carrying a firearm, and should have been submitted to the jury. However, in U.S. v. Barton, 257 F.3d 433 (5th Cir. 2001), the Fifth Circuit rejected this argument. The court held that “[i]n light of the language, structure, context, and legislative history of § 924(c)(1)(A), we join the vast majority of circuits that have reviewed this or a similar issue to conclude that subsection (i), (ii) and (iii) set forth sentencing factors, not separate elements of different offenses.” Therefore, there was no error here. U.S. v. Smith, 296 F.3d 344 (5th Cir. 2002).
5th Circuit holds that vehicle theft was crime of violence. (330) Defendant pled guilty to firearms charges. He received a sentence enhancement under § 2K2.1(a)(4)(A) based on the court’s finding that his previous conviction for vehicle theft constituted a crime of violence. The Fifth Circuit found that it was bound by prior circuit precedent to hold that vehicle theft constitutes a crime of violence. In U.S. v. Jackson, 220 F.3d 635 (5th Cir. 2000), another panel held that the anuahtorized use of an automobile was a crime of violence because “there is a substantial risk that the vehicle … might become involved in an accident.” By this reasoning, in this circuit it appears that most traffic violations have been elevated to crimes of violence. U.S. v. Charles, 275 F.3d 468 (5th Cir. 2001), rehearing en banc granted, U.S. v. Charles, 284 F.3d 567 (5th Cir. 2002), and on rehearing en banc, U.S. v. Charles, 301 F.3d 309 (5th Cir. 2002).
5th Circuit holds that commentary only prohibits gun increase for crime that underlies § 924(c) count. (330) Defendant was convicted of kidnapping, robbery, attempted robbery and using a firearm during a crime of violence. The judge did not include a weapon enhancement in calculating the offense level for the kidnapping conviction, the crime of violence underlying the § 924(c) gun count. However, in determining the offense levels for the robbery and attempted robbery convictions, the judge assessed a seven-level enhancement because defendant discharged his gun. Defendant argued that the commentary to § 2K2.4, which applied to the gun counts, as clarified by Amendment 599 to the guidelines, precluded these weapon enhancements as double counting. The Fifth Circuit disagreed, finding that the only “double counting” prohibited by either the original or the amended Commentary is enhancement of the offense level for the offense which underlies the gun count. Since the judge did not include a weapon enhancement in calculating the offense level for the underlying offense of kidnapping, no double counting occurred. U.S. v. Dixon, 273 F.3d 636 (5th Cir. 2001).
5th Circuit holds that statute providing for sentence of “no less than 7 years” permitted more than 7 years. (330) Defendant pled guilty to using and carrying a firearm during a violent crime, under 18 U.S.C. § 924(c)(1)(A)(ii). The district court interpreted the statute as providing for a sentence of not less than seven years and up to life imprisonment. The Fifth Circuit agreed that the only imprisonment “mandated” by § 924(c) was the minimum or the floor, not the floor and ceiling as the prior version of the statute provided. Thus, the statute’s reference to a sentence of “no less than seven years” was a reference to a minimum sentence, and the district court had authority to impose a sentence in excess of seven years. This conclusion was consistent with prior cases interpreting identical language in § 924(e), which provides for the imposition of a mandatory term of imprisonment of “not less than fifteen years” for defendants with three prior drug convictions or violent felonies convicted under § 922(g). See U.S. v. Guerrero, 5 F.3d 868 (5th Cir. 1993). U.S. v. Sias, 227 F.3d 244 (5th Cir. 2000).
5th Circuit finds insufficient evidence that unsuccessful burglar intended to steal more than 50 firearms. (330) Defendant pled guilty to conspiring to steal firearms after he and an accomplice unsuccessfully tried to break into a business to steal guns. Defendant and the accomplice had previously attempted to break into another business for the same purpose. The district court found that 87 guns would have been stolen if the burglaries had not been interrupted, and applied a six-level increase under § 2K2.1(b)(1)(F) for an offense involving more than 50 firearms. The conspiracy guideline, § 2X1.1(a), directs the use of the base offense level for the substantive offense, “plus any adjustments … for any intended offense conduct that can be established with reasonable certainty.” The Fifth Circuit found insufficient evidence to establish with “reasonable certainty” that defendant intended to steal more than 50 firearms. Although one of the stores had more than 50 guns on display, this alone was insufficient to demonstrate the intent with reasonable certainty. Similarly, defendant’s addiction to drugs and his prior history of committing burglaries did not constitute evidence of his intent to steal all of the guns at both stores. Historically, defendant stole only a small number of items at a time to support his drug habit. U.S. v. Rome, 207 F.3d 251 (5th Cir. 2000).
5th Circuit rejects mandatory consecutive gun sentence as basis for departure. (330) Defendant, a state corrections officer, struck a prisoner several times on the head with his service revolver, knocking the prisoner unconscious. Defendant was convicted of civil rights violations, using a firearm during a crime of violence, and obstruction of justice. The district court departed downward, finding that in light of the mandatory 60-month sentence required for the gun charge, the guidelines on the other charges resulted in too harsh a sentence. The Fifth Circuit reversed. Under U.S. v. Caldwell, 985 F.2d 763 (5th Cir. 1993), a mandatory consecutive sentence under § 924(c) cannot justify a downward departure for the underlying offense. The other factors cited by the court did not justify the departure. The fact that defendant was a law enforcement officer who lawfully possessed the firearm did not remove this case from the heartland. Employment status and public service are discouraged factors that can only be grounds for departure in exceptional cases. USSG §§ 5H1.5 and 5H1.11. Defendant’s status as a corrections officer was closer to an aggravating factor than a mitigating one, since his conduct was an abuse of a public position. Finally, there was no evidence that defendant’s family would suffer any more than any family suffers when a member is sentenced to prison. U.S. v. Winters, 174 F.3d 478 (5th Cir. 1999).
5th Circuit rules link between gun and crack insufficient to support cross-reference. (330) Police found a handgun under the driver’s seat of the car defendant was using to drive three children to school. The arresting officers then searched defendant’s residence and found a plastic bag containing another gun and a locked box containing 24 grams of crack. Defendant was acquitted of possessing the firearm in the house, but convicted of possessing the gun in the car. Section 2K2.1(c)(1) directs a court to use the guideline for the underlying offense if the defendant used or possessed the firearm in connection with another offense. The Fifth Circuit held that the nexus between defendant’s possession of the gun in the car and his possession of the drugs at the house was insufficient to support the use of the § 2K2.1(c)(1) cross-reference. Defendant’s possession of the gun under the car seat was too geographically, spatially, functionally and logically remote from his possession of crack cocaine to satisfy the nexus requirement. The mere fact that defendant had keys to the locked box and to the car on his key ring was too minimal to bridge the nexus gap, particularly in light of the intervening firearm, owned by defendant, in much closer proximity to the drugs than the gun of conviction. U.S. v. Mitchell, 166 F.3d 748 (5th Cir. 1999).
5th Circuit approves separate enhancements for stealing firearms during burglary. (330) Defendant burglarized a residence and stole five firearms. A federal court convicted him of possessing stolen firearms. The district court applied a § 2K2.1(b)(4) enhancement because the firearms were stolen, and a § 2K2.1(b)(5) enhancement for possessing the firearms in connection with another felony, the burglary. The Fifth Circuit held that the firearm guideline permits separate enhancements for the firearm being stolen and for the same firearm being possessed during an underlying felony offense. Note 12 to § 2K2.1 bars the (b)(4) enhancement in § 944(j) cases only if the base offense level is determined under subsection (a)(7). Defendant’s offense level was determined under (a)(4). The two enhancements are based on different concerns. Subsection (b)(4) applies if the thing possessed by the defendant is a stolen firearm. Subsection (b)(5) applies when the firearm is somehow involved in another felony offense. Finally, even if the application of both enhancements was double counting, it was not improper. The guidelines do not prohibit double counting except when the particular guideline expressly does so. Unlike the burglary guideline, § 2K2.1 does not limit the application of subsections (b)(4) and (b)(5). U.S. v. Luna, 165 F.3d 316 (5th Cir. 1999).
5th Circuit applies stolen firearm enhancement to guns acquired during burglary. (330) Defendant burglarized a residence and stole five firearms. A federal court convicted him of possessing stolen firearms. Relying on U.S. v. Rowlett, 23 F.3d 300 (10th Cir. 1994), defendant argued that a § 2K2.1(b)(4) stolen firearm enhancement was improper because the firearms only became “stolen” after he acquired them during the course of the burglary. Rowlett held that subsection (b)(4) applies only when the firearm had already been stolen prior to the defendant’s taking possession of it. The Fifth Circuit, rejecting Rowlett, refused to limit subsection (b)(4) to firearms that were previously stolen. To not apply the enhancement simply because the gun was not stolen when defendant acquired it would be “antithetical to the overall scheme of the Guidelines.” Defendant illegally entered a home, stole the firearms during the course of the burglary, and departed with the stolen guns in his possession. This course of conduct clearly triggered the application of § 2K2.1(b)(4). U.S. v. Luna, 165 F.3d 316 (5th Cir. 1999).
5th Circuit holds that later burglary was “prior” conviction because sentencing occurred first. (330) Defendant burglarized a residence and stole five firearms. A federal court convicted him of possessing stolen firearms. Section 2K2.1(a)(4)(A) mandates an offense level of 20 if the defendant “had one prior felony conviction of either a crime of violence or a controlled substance offense.” Defendant argued that the use of the past tense “had” meant that § 2K2.1(a)(4)(A) only applies when the other violent felony conviction occurred before the commission of the current firearms offense. Defendant committed and was convicted of another burglary after he committed the current crime, but before he was sentenced for it. The Fifth Circuit found defendant’s argument precluded by U.S. v. Gooden, 116 F.3d 721 (5th Cir. 1997). Gooden held that a conviction for a robbery that occurred after the commission of a federal firearms offense was a “prior conviction” for purposes of § 2K2.1(a)(4)(A) because the robbery sentence was imposed before the sentence for the current firearms offense. U.S. v. Luna, 165 F.3d 316 (5th Cir. 1999).
5th Circuit says cross-reference does not apply when gun used in foreign crime. (330) Defendant shot and killed a man in Mexico. He engaged in a gun battle with pursuing Mexican police, and then crossed the border into the United States. He pled guilty to illegally importing a firearm into the U.S. Sections 2K2.1(c)(1) and 2X1.1 direct a court to apply the guideline for the underlying offense, if the defendant used the gun in another crime. The district court applied § 2A2.1. The Fifth Circuit held that although defendant’s Mexican crimes did not count as relevant conduct, and thus could not be used to apply the cross-reference, the district court could have departed upward to impose the same sentence. Defendant’s foreign offenses did not literally fit the definition of relevant conduct under § 1B1.3. Although the foreign crimes were part of the same course of conduct as the offense of conviction, they were not the type of offenses for which § 3D1.2(d) would require grouping. Also, § 2K2.1’s cross-reference applies only where the gun was used in connection with another federal, state or local offense. However, under the unusual circumstances of the case, the district court could well have departed upward by analogy to impose the same sentence. U.S. v. Levario-Quiroz, 161 F.3d 903 (5th Cir. 1998).
5th Circuit says cross-reference does not apply when gun used in foreign crime. (330) Defendant shot and killed a man in Mexico. He engaged in a gun battle with pursuing Mexican police, and then crossed the border into the United States. He pled guilty to illegally importing a firearm into the U.S. Sections 2K2.1(c)(1) and 2X1.1 direct a court to apply the guideline for the underlying offense, if the defendant used the gun in another crime. The district court applied § 2A2.1. The Fifth Circuit held that although defendant’s Mexican crimes did not count as relevant conduct, and thus could not be used to apply the cross-reference, the district court could have departed upward to impose the same sentence. Defendant’s foreign offenses did not literally fit the definition of relevant conduct under § 1B1.3. Although the foreign crimes were part of the same course of conduct as the offense of conviction, they were not the type of offenses for which § 3D1.2(d) would require grouping. Also, § 2K2.1’s cross-reference applies only where the gun was used in connection with another federal, state or local offense. However, under the unusual circumstances of the case, the district court could well have departed upward by analogy to impose the same sentence. U.S. v. Levario-Quiroz, 161 F.3d 903 (5th Cir. 1998).
5th Circuit upholds destructive device enhancement despite claim that devices were not defendant’s. (330) Defendant pled guilty to unlawful possession of a short barrel shotgun in violation of 26 U.S.C. § 5861(d). The district court applied a § 2K2.1(b)(3) enhancement because the offense involved “destructive devices” seized from defendant’s house. Defendant argued that the district court should have held an evidentiary hearing to explore his claim that the explosive devices seized from his home belonged to another person. The Fifth Circuit held that the failure to hold an evidentiary hearing was not error. Even if some of the seized items belonged to someone else, the offense was possession and there was no dispute that the items were found in defendant’s possession at his rural residence, where he lived alone. U.S. v. Carmouche, 138 F.3d 1014 (5th Cir. 1998).
5th Circuit holds that detached shotgun barrel was a short barrel shotgun. (330) Defendant pled guilty to unlawful possession of a short barrel shotgun in violation of 26 U.S.C. § 5861(d). Section 2K2.1(b)(2) specifies a base offense level of six when the gun is possessed solely for lawful sporting purposes or collection. However, this reduction is not available for offenses involving firearms defined in § 5845(a). Defendant argued that the detached barrel found at his house did not meet the technical definition of a short barrel shotgun in 18 U.S.C. § 5845(a)(1) and (d). The Fifth Circuit rejected the argument, holding that defendant’s detached shotgun barrel was a “short barrel shotgun” for purposes of the guidelines. The parties stipulated that the shotgun barrel was “made to fit the shotgun,” was less than 13 inches long and was found in close proximity to the gun. Defendant pled guilty to the indictment as charged and did not formally challenge his plea. U.S. v. Carmouche, 138 F.3d 1014 (5th Cir. 1998).
5th Circuit affirms departure based on multiple weapons and concealment, but rejects manufacturing. (330) Defendant pled guilty to firearms charges. The district court departed upward five levels based on three factors: (1) the possession of multiple weapons, (2) defendant’s deception and attempts to conceal his illegal conduct, and (3) defendant’s manufacturing of firearms. The Fifth Circuit found that the court properly considered multiple weapons and his attempt to conceal his illegal conduct, but rejected the third ground because § 2K2.1 does address the manufacture of firearms. Multiple firearms is authorized as a ground for departure in note 16 to § 2K2.1. Section § 2K2.1’s inclusion of two specific provisions relating to concealment did not preclude the district court from considering other types of concealment. The concealment factor is no different from any other factor that has already been considered to some degree in the offense—the court must determine if the factor exists to a degree not contemplated by the guidelines. However, the court erred in stating that § 2K2.1 did not address manufacturing. Section 2K2.1 governs those who are convicted of illegally manufacturing. This is not to say that manufacturing can never be the basis for departure in unusual circumstances, but the court made no such finding here. U.S. v. Arce, 118 F.3d 335 (5th Cir. 1997).
5th Circuit holds that deferred adjudication constitutes a prior conviction under § 2K2.1. (330) Defendant pled guilty to being a felon in possession of a firearm. Section 2K2.1(a)(4)(A) provides for an enhanced offense level for defendants with a prior felony conviction for certain types of offenses. In 1995, defendant pled no contest to robbery in state court, and received deferred adjudication and was required to spend 180 days in jail as a condition of probation. The Fifth Circuit held that the deferred adjudication was a prior conviction in the context of § 2K2.1 since it was the type of disposition that receives criminal history points. Section 4A1.2(f) provides that a diversionary disposition resulting from a finding or admission of guilt, or a plea of nolo contendere, in a judicial proceeding is counted as a sentence under § 4A1.1(c) even if a conviction is not formally entered. U.S. v. Gooden, 116 F.3d 721 (5th Cir. 1997).
5th Circuit holds that sentence imposed before sentencing on instant offense is a “prior sentence.” (330) Defendant committed the instant firearm offense in 1994, but was not sentenced until 1996. In the meantime, in 1995, defendant pled nolo contendere to robbery in state court. He argued that the 1995 conviction did not count as a prior sentence because it was not sustained until after he committed the instant offense. The Fifth Circuit found no merit in this argument. Under circuit caselaw, if a conviction qualifies for criminal history points, it qualifies as a conviction under § 2K2.1. The commentary to § 4A1.2 defines prior sentence as a sentence imposed prior to sentencing on the instant offense. Because the robbery sentence was imposed before sentencing on the instant offense, it was a “prior sentence,” thus qualifying for criminal history points. Because it qualified for criminal history points, it was deemed a prior conviction for purposes of enhancing defendant’s base offense level under § 2K2.1(a)(4)(A). U.S. v. Gooden, 116 F.3d 721 (5th Cir. 1997).
5th Circuit holds that § 2K2.1 is the most analogous offense guideline for § 922(u) offense. (330) In August 1995, defendants broke into a pawnshop at night and stole a number of firearms, in violation of 18 U.S.C. § 922(u). The district court sentenced them under the 1995 version of the guidelines. The 1994 version of the guidelines in effect when defendants committed their crime did not contain any reference to § 922(u). Defendants raised ex post facto challenges to the court’s use of § 2K2.1. The Fifth Circuit held that with one exception, the application of § 2K2.1 did not violate the ex post facto clause. Section 2X5.1 directs that where no guideline is specified, the court should apply “the most analogous offense guideline.” Section 2K2.1 is the “most analogous offense guideline” to be applied for violations of § 922(u) under the 1994 guidelines. The four level increase under the 1995 version of § 2K2.1(b)(5) did not violate the ex post facto clause because it also applied under the 1994 version. However, the § 2K2.1(b)(4) enhancement for stolen firearms did violate the ex post facto clause because it would not have applied under the 1994 guidelines. The note 12 commentary in 1994 excluded offenses, such as defendants’ that involved stolen firearms where the defendant was not convicted of any other offenses. This commentary was amended in 1995 to permit the sentencing court to apply the (b)(4) enhancement if the offense level is not calculated under § 2K2.1(a)(7). Defendant’s offense level was calculated under § 2K2.1(a)(4)(A), and therefore his offense level could be enhanced under the 1995 version. U.S. v. Armstead, 114 F.3d 504 (5th Cir. 1997).
5th Circuit rules defendants who stole guns possessed them in connection with “another felony.” (330) Defendants broke into a pawn shop at night and stole a number of firearms, in violation of 18 U.S.C. § 922(u). The district court applied a § 2K2.1(b)(5) enhancement for possessing the guns during another felony offense—the burglary of the pawn shop. They argued that the enhancement punished them twice for the same underlying conduct. The Fifth Circuit held that the § 2K2.1(b)(5) enhancement did not violate double jeopardy or constitute improper double counting. Although defendants did not possess the guns before they broke into the shop, they certainly possessed them once they entered the pawn shop and picked them up. This subsequent possession satisfied the nexus requirement, because those firearms were possessed and could have been used to facilitate the crime of burglary. Nothing in the guidelines suggests that contemporaneous crimes cannot be considered when enhancing a sentence. Double counting is permitted under the guidelines unless expressly forbidden. U.S. v. Armstead, 114 F.3d 504 (5th Cir. 1997).
5th Circuit holds that indecency with a child involving sexual contact is a crime of violence. (330) Defendant was convicted of being a felon in possession of a firearm. Section 2K2.1(a)(4)(a) provides for an increased base offense level for defendants with a prior felony conviction for a crime of violence. The Fifth Circuit held that defendant’s prior Texas conviction for indecency with a child involving sexual contact was a crime of violence, thus meriting the increased offense level. In U.S. v. Velazquez-Overa, 100 F.3d 418 (5th Cir. 1996), the court held that for purposes of 18 U.S.C. § 16, indecency with a child involving sexual contact is a crime of violence. Crimes of this type are generally perpetrated by adults who are bigger and stronger than the children they abuse, and who have the ability to coerce the children as an adult authority figure. There is always a substantial risk that physical force will be used to ensure the child’s compliance. Although the definition of crime of violence in § 16 is not identical to the definition in § 4B1.2 of the guidelines, the reasoning is the same. U.S. v. Kirk, 111 F.3d 390 (5th Cir. 1997).
5th Circuit holds increase for using firearm in aggravated assault was not double counting. (330) Defendant pointed a gun at the head of a 16‑year-old boy who was a friend of defendant’s daughter, cocked the hammer, threatened the boy, and demanded to know the whereabouts of the daughter. He was convicted in state court of aggravated assault and in federal court of being a felon in possession of a firearm. The district court applied a § 2K2.1(b)(5) enhancement because defendant used or possessed the firearm in connection with another felony offense—aggravated assault with a deadly weapon. Defendant argued that the enhancement was double punishment because the aggravated assault would not have been an aggravated assault but for the use of the firearm. The Fifth Circuit found no double counting. Under state law, an aggravated assault requires the use or exhibition of a deadly weapon. Mere possession would not make the assault aggravated. Here, the aggravated assault occurred when defendant pointed the weapon at the boy’s head and cocked the hammer, while demanding information from the boy. U.S. v. Kuban, 94 F.3d 971 (5th Cir. 1996).
5th Circuit rules acquittal does not prevent application of cross-reference. (330) Defendant was a Branch Davidian involved in a gun battle between the Davidians and the ATF. He was convicted of firearms charges, but acquitted of conspiring to murder federal agents. Section 2K2.1(c)(1) directs the court to apply § 2X1.1 if the defendant used the firearm in connection with another offense, and § 2X1.1 directs the court to apply the guideline for the substantive offense. Note 2 provides that substantive offense means the offense defendant was convicted of conspiring to commit. The district court found that defendant was involved in a conspiracy that resulted in the murder of four federal agents. The Fifth Circuit rejected defendant’s claim that his acquittal for conspiring to murder federal agents barred application of the cross‑reference. Generally, a sentencing court may rely on facts underlying an acquitted count if the preponderance of the evidence standard is satisfied. The language in note 2 to § 2X1.1 does not restrict the court’s ability to use the facts underlying acquitted conduct. This commentary applies only if § 2X1.1 is applied directly, rather than as a cross‑reference from § 2K2.1. U.S. v. Branch, 91 F.3d 699 (5th Cir. 1996).
5th Circuit holds 924(c) machine gun provision is enhancement, not separate crime. (330) Defendants were convicted of carrying a firearm during or in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1). The crime carries a five year sentence; however, it carries an enhanced sentence of 30 years if the firearm is a machine gun. The Fifth Circuit held that the machine gun provision is a sentence enhancement provision rather than a separate offense. Therefore, the government need not charge the enhancement in the indictment nor must the jury find as part of its verdict that the firearm was a machine gun. However, under Bailey v. United States, 116 S.Ct. 501 (1995), section 924(c) requires more than “mere possession” of a firearm by the defendant. On remand, the government must show “active employment” of the firearm. U.S. v. Branch, 91 F.3d 699 (5th Cir. 1996).
5th Circuit upholds cross‑reference to murder for Branch Davidian who provided firearms. (330) Defendant, a Branch Davidian, was convicted of various firearms counts. Under § 2K2.1(c)(1) and § 2X1.1, when a defendant uses a firearm in connection with another offense, the court must apply the guideline for that offense. Defendant was not present at the Davidian’s compound during the gun battle with ATF agents or the ensuing 51‑day stand‑off. Nonetheless, based on his activities before the ATF raid, the district court found that defendant was involved in a conspiracy that resulted in the murder of four federal agents. The Fifth Circuit agreed that defendant’s pre‑raid activities justified the use of the cross‑reference. The Davidians had prepared in advance for a war with the U.S. government, and defendant assisted by purchasing guns knowing they would be used against law enforcement officials. Defendant was one of the Davidians’ primary gun purchasers. He knew that the amount and type of weapons were consistent with instructions to prepare for an armed confrontation with the “beast.” These were not the efforts of an ardent gun collector. The weapons collected were weapons of war. U.S. v. Branch, 91 F.3d 699 (5th Cir. 1996).
5th Circuit holds that deferred adjudication is prior felony conviction under § 2K2.1. (330) Defendant pled guilty to being a felon in possession of a firearm. Section 2K2.1(a)(4)(A) provides for a base offense level of 20 if the defendant had a prior felony conviction for a crime of violence or controlled substance offense. The Fifth Circuit held that defendant’s guilty plea to aggravated assault in Texas state court, for which he received a ten-year sentence, but with deferred adjudication probation, was a prior felony conviction. Defendant conceded that aggravated assault was a crime of violence. Deferred adjudications resulting from a finding or admission or guilt are to be considered in computing the criminal history category. Note 5 to § 2K2.1 provides that any prior conviction that receives criminal history points may be considered. U.S. v. Stauder, 73 F.3d 56 (5th Cir. 1996).
5th Circuit holds that deferred adjudication is prior felony conviction under § 2K2.1. (330) Defendant pled guilty to being a felon in possession of a firearm. Section 2K2.1(a)(4)(A) provides for a base offense level of 20 if the defendant had a prior felony conviction for a crime of violence or controlled substance offense. The Fifth Circuit held that defendant’s guilty plea to aggravated assault in Texas state court, for which he received a ten-year sentence, but with deferred adjudication probation, was a prior felony conviction. Defendant conceded that aggravated assault was a crime of violence. Deferred adjudications resulting from a finding or admission or guilt are to be considered in computing the criminal history category. Note 5 to § 2K2.1 provides that any prior conviction that receives criminal history points may be considered. U.S. v. Stauder, 73 F.3d 56 (5th Cir. 1996).
5th Circuit upholds counting prior felony for felon in possession of firearm. (330) Defendant was convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). He challenged the inclusion of his three prior felony convictions in his criminal history, because at least one of those convictions had already been taken into account in his offense level as the predicate felony offense. The Fifth Circuit held that including a § 922(g)(1) offender’s prior felony in his criminal history is not impermissible double counting. The prior felony is not part of the instant offense under § 4A1.2(a)(1), nor is the conduct of committing the prior felony an element of § 922(g)(1); it is the status of being a convicted felon that is an element of § 922(g)(1). U.S. v. Hawkins, 69 F.3d 11 (5th Cir. 1995).
5th Circuit holds that Texas theft from a person is a crime of violence. (330) Defendant was convicted of being a felon in possession of a firearm. The district court applied a higher offense level under § 2K2.1(a)(2) because he had two prior convictions for crimes of violence. The Fifth Circuit agreed that defendant’s Texas conviction for felony theft from a person was a crime of violence. In affirming the district court’s detention order in this case, this court held that the offense was a crime of violence under the Bail Reform Act because it involves an inherent risk of injury to the victim. There was no logical basis for distinguishing the inquiry there from the inquiry required under § 4B1.2(1)(ii). U.S. v. Hawkins, 69 F.3d 11 (5th Cir. 1995).
5th Circuit holds that involuntary manslaughter is a crime of violence. (330) Defendant pled guilty to being a felon in possession of a firearm. Section 2K2.1(a)(3) provides for a higher offense level for certain defendants who have prior convictions for crimes of violence. The Fifth Circuit held that defendant’s involuntary manslaughter was a crime of violence. Note 2 to § 4B1.2 states that crime of violence includes manslaughter. Since the commentary makes no distinction between voluntary and involuntary manslaughter, both are included. Moreover, defendant’s conduct, causing the death of another while driving drunk, clearly “present[ed] a serious potential risk of physical injury to another.” U.S. v. Fry, 51 F.3d 543 (5th Cir. 1995).
5th Circuit says § 2K2.1(a)(3) does not contain a scienter requirement. (330) Defendant pled guilty to being a felon in possession of a firearm. He received an increased base offense level under § 2K2.1(a)(3) because he had a prior conviction for a crime of violence and the instant offense involved a gun listed in 26 U.S.C. § 5845(a)—a machine gun. He argued that he did not know that the gun in question had been converted into a machine gun, and that § 2K2.1(a)(3) should be read to imply a scienter requirement. The Fifth Circuit held § 5K2.1(a)(3) does not contain a scienter requirement. The guideline makes no reference to a defendant’s mental state, unlike neighboring guideline sections. Section 5K2.1(a)(3) is plain on its face and should not, in light of the apparent intent of the drafters, be read to imply a scienter requirement. U.S. v. Fry, 51 F.3d 543 (5th Cir. 1995).
5th Circuit says gun found in car was not used “in connection with” bank fraud. (330) Defendant submitted a fraudulent credit application to a bank. The Secret Service made a controlled delivery of blank checks to defendant’s mail box. Police arrested defendant as soon as he retrieved the checks and drove out of his apartment complex. The officers recovered a loaded gun from the front passenger area of the car. Defendant was convicted of bank fraud and unlawful possession of a firearm. The Fifth Circuit reversed a § 2K2.1(b)(5) enhancement, holding that the facts failed to show that defendant used the gun “in connection with” his bank fraud. There was no connection between the gun and the fraud other than the gun’s presence in defendant’s car, along with other tools of defendant’s bank fraud trade. The presence of a gun near instruments of bank fraud does not create the same automatic increase in danger that exists when drugs and guns are present together. U.S. v. Fadipe, 43 F.3d 993 (5th Cir. 1995).
5th Circuit upholds refusal to increase offense level for risk of death or serious bodily injury. (330) Defendant was convicted of arson and mail fraud for burning his restaurant. Under § 2K1.4(a)(1), a base offense level of 24 applies if the offense created a substantial risk of death or serious bodily injury. The district court applied a base offense level of 20, which applies if the offense involves the attempted destruction of a structure other than a dwelling. The 5th Circuit affirmed. A fire department investigator testified that firemen who fought the blaze were substantially endangered. Nonetheless, the district court overruled the government’s objection and specifically found that the offense level was 20, thus making an implied finding that the fire did not create a substantial risk of death or serious bodily injury. The government did show why this finding was clearly erroneous. U.S. v. Pazos, 24 F.3d 660 (5th Cir. 1994).
5th Circuit agrees that firearm was used or possessed in connection with drug offense. (330) Defendant sold drugs to an undercover agent. A search of his home uncovered drugs, drug paraphernalia and a loaded gun. He was convicted of being a felon in possession of a firearm, and received an enhancement under section 2K2.1(b)(5) because the firearm was possessed “in connection with another felony offense.” The 5th Circuit affirmed. The phrase “in connection with” for section 2K2.1(b)(5) purposes should be given its ordinary and natural meaning; the court declined to adopt the standard set forth in 18 U.S.C. section 924(c). Although only a small quantity of drugs were found in defendant’s home, defendant was actively involved in distributing cocaine. Thus, it was reasonable to assume defendant kept the firearm in his home to protect even the small amount of drugs kept there. The gun was in close physical proximity to the narcotics, in a drawer of the very desk where the drugs were found. Furthermore, it was fully loaded. U.S. v. Condren, 18 F.3d 1190 (5th Cir. 1994).
5th Circuit rejects reduction where defendant claimed gun was for personal security. (330) Defendant maintained that his offense level for a firearm possession conviction should have been six, which is the level accorded a defendant who possesses the weapon solely for lawful sporting purposes or collection. The 5th Circuit found no error, since defendant did not suggest either of these circumstances to the trial judge. Rather, he contended that he possessed the gun for personal security. U.S. v. Montano-Silva, 15 F.3d 52 (5th Cir. 1994).
5th Circuit says using drug offense in offense level and criminal history was not double counting. (330) Defendant was convicted of making false statements in purchasing a gun. The gun was found, along with crack cocaine in small plastic bags, when defendant was arrested for speeding. Section 2K2.1(c)(2) provides that if the weapon was possessed in connection with another offense, the guideline for that offense should be used if it would result in a higher offense level. Defendant argued that this was double counting, since the drug offense was also included in his criminal history. The 5th Circuit held that defendant waived this argument by failing to raise it below, and moreover, there was no double counting. Section 4A1.2 provides that a prior sentence includes only conduct that is not part of the instant offense. In this case, the instant offense was not the drug offense, but the unlawful acquisition of the firearm. Defendant was convicted in federal court only of the firearms offense. The drug offense entered the calculation only derivatively. U.S. v. Chapman, 7 F.3d 66 (5th Cir. 1993).
5th Circuit sentences defendant who illegally possessed firearm for underlying drug offense. (330) While purchasing a gun, defendant falsely reported on an ATF form that he was not under indictment. He was later arrested in possession of the gun and crack cocaine in small plastic bags. Defendant was convicted of making false statements in buying the gun. Because the gun was possessed in connection with another offense, section 2K2.1(c)(2) directed that defendant be sentenced under the guideline for that offense. The 5th Circuit affirmed the use of the offense level for the underlying drug offense, section 2D1.1(a)(3)(C)(15). The trial court properly concluded that the offense was possession with intent to distribute, rather than simple possession, since defendant carried individual bags of crack and a pistol. U.S. v. Chapman, 7 F.3d 66 (5th Cir. 1993).
5th Circuit holds that relevant conduct does not limit application of §2K2.1(c)(1) cross-reference. (330) Defendant was convicted of possession of a firearm by a felon. Section 2K2.1(c)(1) provides, through a cross-reference to §2X1.1, that if the firearm was used or possessed in connection with another offense, defendant is to be sentenced under the guideline for that offense. Accordingly, the court sentenced defendant under §2A4.1, the kidnapping guideline. He argued that this was not proper since the kidnapping was not conduct relevant to the offense of conviction, i.e. his receipt of the gun. The 5th Circuit agreed, but held that the relevant conduct section did not limit the section 2K2.1(c)(1) cross-reference. The reference to “another offense” embraces all illegal conduct performed or intended by defendant involving the firearm in the charged offense. U.S. v. Gonzales, 996 F.2d 88 (5th Cir. 1993).
5th Circuit holds arson resulting in death analogous to first-degree murder. (330) Defendant hired his nephew to burn down his store, and the nephew was killed in the fire. Section 2K1.4(c) provides that if death results from the arson, the most analogous guideline applies if it has a higher offense level. The 5th Circuit held that the most analogous guideline was first-degree murder (2A1.1), rather than involuntary manslaughter (2A1.4). The definition of murder under 18 U.S.C. 1111(a) is broad enough to include cases in which an arsonist’s accomplice dies during the commission of the felony. Moreover, section 2A1.1 is specially designed to guide courts in sentencing for felonies in which death results. The district court improperly applied the manslaughter guideline, but since the government did not cross-appeal, it waived any challenge to the district court’s misapplication of the guidelines. U.S. v. El-Zoubi, 993 F.2d 442 (5th Cir. 1993).
5th Circuit rejects departure based on interplay between section 924(c) and guidelines. (330) Defendant pled guilty to carrying a firearm in relation to a drug trafficking crime in violation of 18 U.S.C. section 924(c) and to a drug offense. The sentencing court departed downward because the possession of the firearm played a “minimal role” in the drug crime, and section 924(c) was severe. Defendant received a 30 month sentence for the drug crime, to be followed by the five year minimum sentence for the firearm offense. The 5th Circuit reversed. The district court departed because of concern that the guidelines did not adequately take into account the interplay of section 924(c)’s five year mandatory minimum sentence with the sentence to be imposed for the underlying drug offense. However, the guidelines do consider this interplay. Section 2K2.4, the guideline for the firearm offense, prohibits an additional enhancement under section 2D1.1(b)(1) for possessing or carrying a firearm when the defendant has been convicted under section 924(c). U.S. v. Caldwell, 985 F.2d 763 (5th Cir. 1993).
5th Circuit clarifies that felons are eligible for reduction if firearm is possessed for legal collection purposes. (330) In U.S. v. Pope, 871 F.2d 506 (5th Cir. 1989), a felon who claimed to own a gun and silencer solely for collection purposes was denied a reduction under section 2K2.1. Language in the opinion suggested that the reduction was denied because as a felon, the defendant could not legally possess a gun collection. In this case, the 5th Circuit labeled this language as dicta, stating that the reduction was denied in Pope because the collection itself was illegal (it included an unregistered silencer, which even a citizen free of all legal disabilities cannot possess). Because dicta in U.S. v. Buss, 928 F.2d 150 (5th Cir. 1991), confused this matter further, the court clarified the issue: the availability of the reduction in section 2K2.1 turns on the purpose or use for which the firearm is acquired or possessed and the lawfulness of this use. If it would be legal for a non-felon to possess such a collection, a felon may receive the reduction if he possessed the weapon solely for collection purposes. U.S. v. Shell, 972 F.2d 548 (5th Cir. 1992).
5th Circuit affirms that loaded firearms in urban apartment were not for sporting purposes. (330) Defendant, a felon, purchased a .30 caliber rifle and a 9mm. pistol by misrepresenting that he had never been convicted of a crime. He requested a “sporting purpose” reduction under the 1989 version of guideline section 2K2.1(B)(1), based on testimony that he owned the pistol for target practice and the long gun for deer and bird hunting. The 5th Circuit affirmed the district court’s denial of the reduction. The guns were found loaded in defendant’s urban apartment. None but the most negligent of target shooters would keep legitimate sporting firearms loaded in the home. It is not sufficient that one among several intended uses might be lawful recreation; it must be the sole intended use. In light of defendant’s criminal history, the district court’s finding that defendant did not possess the weapons for purely recreation purposes was not clearly erroneous. U.S. v. Shell, 972 F.2d 548 (5th Cir. 1992).
5th Circuit applies 2M5.2, rather than 2K2.1, to export of ammunition. (330) Defendant was arrested attempting to smuggle 10,181 cartridges of various caliber ammunition from the United States into Mexico. The 5th Circuit upheld the application of section 2M5.2 (exportation of arms without an export license), rather than section 2K2.1 (unlawful transportation of firearms or ammunition). The court rejected defendant’s argument that section 2M5.2 was intended to apply only to offenses involving “serious military or space hardware,” not firearms ammunition. Section 2M5.2 is not limited to the items listed in application note 1. Moreover, the Statutory Index lists section 2M5.2 as the only guideline applicable to convictions under 22 U.S.C. section 2778. The application note to section 2M5.2 does state that in an unusual case in which the offense does not pose a risk to security or foreign policy interest of the United States, a downward departure may be appropriate. Here, the district court departed downward from a range of 33 to 41 months and imposed a 24-month prison term. U.S. v. Galvan-Revuelta, 958 F.2d 66 (5th Cir. 1992).
5th Circuit rules defendant’s sentence was not enhanced twice for discharge of a firearm. (330) Defendant was convicted of assaulting a federal officer with a deadly weapon and using a firearm during the commission of a felony. The 5th Circuit rejected defendant’s claim that his sentence was enhanced twice for using the firearm. Guideline section 2A2.2(b)(2) provides for a five level enhancement if a firearm was discharged during an assault. However, the guideline applicable to the firearms offense, (section 2K2.4), specifically provides that when a sentence is imposed under this section in conjunction with a sentence for an underlying offense, any specific offense characteristic for the use or discharge of a firearm is not to be applied to the guideline for the underlying offense. The presentence report, which was adopted by the trial court, clearly revealed that the prohibition against double counting was acknowledged and accepted. Defendant did not receive the five level enhancement under section 2A2.2(b)(2) for discharge of a firearm. U.S. v. Moore, 958 F.2d 646 (5th Cir. 1992).
5th Circuit rules that attempted burglary is not a violent felony under 18 U.S.C. section 924(e). (330) Defendant was convicted of being a felon in possession of a firearm under 18 U.S.C. section 924(e). He received a mandatory minimum 15 year sentence because the district court determined that he had three previous “violent felonies.” The 5th Circuit reversed, holding that defendant’s two prior convictions for attempted burglary did not constitute violent felonies within the meaning of section 924(e)(1). The offense did not have as an element the use or threatened use of force. Although burglary is specifically listed as a violent felony, a conviction for attempted burglary is not equivalent to a conviction for burglary. Attempted burglary did not present a serious potential risk of physical injury to another. Burglary is a violent felony because an offender’s entry into a building creates the potential for a violent confrontation between the intruder and any occupant or caretaker. However, attempted burglary does not required that the offender enter the building, and thus does not present the same risk of potential harm as burglary. U.S. v. Martinez, 954 F.2d 1050 (5th Cir. 1992).
5th Circuit rejects double jeopardy challenge to punishment for felon in possession of a firearm who used it during a felony. (330) The 5th Circuit rejected defendant’s claim that his cumulative punishments for possession of a firearm by a felon and use of a firearm during the commission of a felony violated the double jeopardy clause. Each statute requires proof of a fact that the other does not. The first requires proof that defendant has a prior final conviction for a felony; the second requires proof that the firearm was used in the commission of a felony. U.S. v. Allison, 953 F.2d 870 (5th Cir. 1992), amended, 986 F.2d 896 (5th Cir. 1993).
5th Circuit rejects supervised release term for use of a firearm during a felony. (330) Defendant was convicted of various counts, including use of a firearm in the commission of a felony, in violation of 18 U.S.C. section 924. The district court imposed a three year term of supervised release on each of the four counts, all running concurrently. Since no supervised release is allowed under the punishment provisions of section 924, the 5th Circuit reformed the sentence on the firearm count to delete the term of supervised release. U.S. v. Allison, 953 F.2d 870 (5th Cir. 1992), amended, 986 F.2d 896 (5th Cir. 1993).
5th Circuit affirms that defendant did not meet burden of proving he possessed firearm for sport or recreation. (330) Defendant was convicted of being a felon in possession of a firearm. The 5th Circuit ruled that defendant failed to meet the burden of proving that he possessed the firearm for sport or recreation for purposes of a reduction under the 1987 version of guideline section 2K2.1(b)(2). Defendant offered no evidentiary basis for the application of this reduction; his general objection claiming the reduction did not suffice. Defendant had the burden of proving his entitlement; the district court was not obligated to accept his bald assertion that he was entitled to the reduction. Although defendant did present some evidence that he was a collector, at no time did he claim the sole use of the weapon was for sporting or recreational purposes. U.S. v. Keller, 947 F.2d 739 (5th Cir. 1991).
5th Circuit holds that enhancement under section 2K2.1(b)(2) does not require knowledge that gun is stolen. (330) Following its recent decision in U.S. v. Singleton, 946 F.2d 23 (5th Cir. 1991), the 5th Circuit held that an enhancement under guideline section 2K2.1(b)(2) does not require knowledge that the firearm was stolen. U.S. v. Dancy, 947 F.2d 1232 (5th Cir. 1991).
5th Circuit holds that defendant need not know gun was stolen for enhancement under section 2K2.1(b)(1). (330) Defendant was convicted of being a felon in possession of a firearm and received a one point enhancement under guideline section 2K2.1(b)(1) because the firearm was stolen. Following the 8th, 9th and D.C. Circuits, the 5th Circuit rejected defendant’s claim that the guideline requires a defendant to have knowledge that the weapon was stolen. The guidelines are explicit when they wish to impose a mens rea requirement. The rule of lenity was not applicable because the statute was not ambiguous. The court also rejected defendant’s claim that the lack of a mens rea requirement violated due process. The enhancement was not an independent crime but was part of the sentencing court’s quest to formulate a proper sentence. Intent need not be proven for each element a judge considers at sentencing. U.S. v. Singleton, 946 F.2d 23 (5th Cir. 1991).
5th Circuit affirms enhancing sentence for firearms offense where weapon was used to commit murder. (330) The court properly enhanced defendant’s firearms sentence under § 2K2.1, finding that defendant committed murder during the course of a drug conspiracy. Section 2K2.1(c)(2) directs a court to apply § 2X1.1 if the firearm was used or possessed in connection with another offense, and to use the guideline for the other offense if it is more specific. Murder is covered by § 2A1.1. The 5th Circuit found that defendant’s offense was not a justifiable homicide. He sought his victim, laid in wait, and with the help of his brother, provoked the argument that resulted in the victim’s death. Defendant received adequate notice of the government’s intent to seek enhancement of his sentence under § 2K2.1. Evidence relating to the homicide was presented at the sentencing hearing, and defendant had an opportunity to cross-examine the government’s witness or introduce his own evidence, but failed to do so. U.S. v. Harris, 932 F.2d 1529 (5th Cir. 1991).
5th Circuit affirms both sentence enhancement for possession of firearm and sentence for felon’s possession of a firearm. (330) The 5th Circuit rejected defendant’s argument that it violated double jeopardy for her to receive a sentence enhancement for possessing a weapon during the commission of a drug offense under guideline § 2D1.1(b)(1), and be sentenced, pursuant to her guilty plea, for being a felon in possession of a firearm. Defendant’s argument “misperceive[d] the distinction between a sentence and a sentence enhancement.” A sentence is for a crime and a sentence enhancement is an adjustment within the permissible range for that or another crime. Because the two are separate, consideration of the two in separate contexts is not improper. U.S. v. Ainsworth, 932 F.2d 358 (5th Cir. 1991).
5th Circuit holds that reduction where firearm is possessed for sport or recreation applies to felons. (330) Defendant was convicted of being a felon in possession of a firearm and sought a four-level decrease in offense level, claiming he possessed the firearm for sport or recreation within the meaning of former § 2K2.1(b)(1). The probation report stated that defendant was not eligible because felons cannot lawfully possess firearms, and the district court denied the reduction. The 5th Circuit held that the sport/recreation exception applied to felons, because the guideline section applies only to persons prohibited from owning weapons. The court distinguished U.S. v. Pope, 871 F.2d 506 (5th Cir. 1989), which held that a similar “collection” exception under § 2K2.2(b)(3) did not apply to felons, on the ground that felons may not lawfully collect firearms. The case was remanded for the district court to clarify whether it denied defendant the reduction because it was misled into believing that felons were not eligible for the reduction, or because it found that defendant did not possess the weapon for sport or recreation. U.S. v. Buss, 928 F.2d 150 (5th Cir. 1991).
5th Circuit upholds using second degree murder guideline for defendant whose arson caused death. (330) Defendant pled guilty to interstate travel in aid of a racketeering enterprise, under which the sentencing guideline provides that the base offense level is the greater of six or the offense level applicable to the underlying crime in respect of which the travel was taken. Since the underlying crime was arson, the district court looked at the guideline for arson, which also provides a base offense level of six, except that if the defendant’s arson caused a death, a district court must apply the “most analogous guideline” from the guideline category of offenses against the person, if the base offense level is higher. The district court determined that the most analogous guideline was second degree murder, and sentenced defendant accordingly. The 5th Circuit held that the district court properly followed the guidelines. U.S. v. Paden, 908 F.2d 1229 (5th Cir. 1990).
5th Circuit upholds upward adjustment for use of a firearm in aggravated assault. (330) In calculating defendant’s sentence for possession of an unregistered firearm, the district court relied on U.S.S.G. 2K2.2, which provides that “[i]f the defendant used the firearm in committing .ÿ.ÿ. another offense,” the guideline for that offense should be used if it is higher than the firearms guideline. Pursuant to this section, the court applied the aggravated assault guideline, § 2A2.2. The 5th Circuit affirmed, noting that the firearms guidelines properly take into account the true nature of the underlying conduct. The district court’s factual finding that defendant used the shotgun to commit aggravated assault was not clearly erroneous. U.S. v. Perez, 897 F.2d 751 (5th Cir. 1990).
5th Circuit holds multiple count section of guidelines prevented “double counting” of gun in drug and weapon counts. (330) The “multiple count” section of the guidelines, § 3D, requires that when one count embodies conduct that is treated as a specific offense characteristic in the guideline applicable to another count, the counts are grouped together as a single group. Thus, the 5th Circuit held that because the base offense level for possession of a machine gun (level 12) was so much less than that for defendant’s drug offense (level 36), the firearm offense “was essentially disregarded” in arriving at defendant’s combined offense level under § 3D1.4(c). Furthermore, the court stated that defendant was not punished twice for the same crime. She was separately sentenced for the separate crimes of possession of an unregistered machine gun and drug offenses. U.S. v. Shaw, 883 F.2d 10 (5th Cir. 1989).
5th Circuit rules judge’s personal disagreement with guidelines for weapons possession is improper grounds for departure, but type and quantity of weapons is not. (330) Defendant pled guilty to knowing possession of an unregistered firearm. The applicable guideline range under § 2K2.2 was 27-33 months, but the sentencing court departed and imposed an 8 year term. The 5th Circuit vacated, stating that the trial court’s personal disagreement with the low punishment meted out by the guidelines for this offense was not proper grounds for a departure. However, the court held that the fact that the defendant was in possession of several unregistered machine guns in the trunk of his car might constitute aggravating circumstances which would warrant a departure. Furthermore, the fact that the defendant possessed a loaded handgun hidden in the front seat of his car might also be a proper grounds for departure under § 5K2.6. U.S. v. Lopez, 875 F.2d 1124 (5th Cir. 1989).
5th Circuit holds that total, not base offense level is used to determine probation. (330) Defendant pled guilty to transporting a firearm with an obliterated serial number, and received a four month suspended term and five years probation. The defendant’s base offense level was six, but he received a two point decrease for acceptance of responsibility leaving him with a total offense level of four. Section 5B1.2 provides that “where probation is imposed, the term shall be (1) at least one year but not more than five if the offense level is six or greater, (2) no more than three years in any other case.” The 5th Circuit agreed with the defendant that offense level meant total offense level, and vacated the five year probation term. It remanded the district court with directions either to enter a three year term or to make findings justifying an upward departure. U.S. v. Harry, 874 F.2d 248 (5th Cir. 1989).
5th Circuit holds convicted felon cannot have a legitimate “gun collection” for a reduction in offense level. (330) Defendant pled guilty to selling a silencer and 22 caliber pistol to an under cover policeman, and was sentenced to 24 months. He claimed that the sentencing court should have reduced his offense level by six points under § 2K2.2(b)(3) because the silencer was part of a collection. The trial court made such a finding, but refused to decrease the offense level. The 5th Circuit held the sentence proper. The § 2K2.2 reduction refers only to lawful collections. A convicted thief cannot receive such a reduction, because he is not allowed to legally possess a weapon, let alone a collection. U.S. v. Pope, 871 F.2d 506 (5th Cir. 1989).
5th Circuit holds that whether two offenses are so closely related to aggregate for sentencing purposes is subject to “due deference” review. (330) Defendant objected to the sentencing court’s refusal to aggregate the sale of a silencer and sale of a handgun together for sentencing purposes under § 3D1.2, on the grounds that the silencer was physically linked to the pistol. The sale of each was one count of a two count information. The 5th Circuit disagreed. This part legal, part factual determination is to be reviewed with due deference to the trial court’s findings. The refusal was proper given the Application Note 2 to that section, which provides that the interests implicated by the “separate” offenses will determine whether the offenses are indeed separate. Here, silencers and gun-toting ex-felons implicate different interests. U.S. v. Pope, 871 F.2d 506 (5th Cir. 1989).
6th Circuit holds theft of firearms did not support increase for possessing firearm in connection with another felony. (330) Defendant was performing community service at a police station when he stole two unloaded firearms from an evidence room and took them home. He was convicted of being a felon in possession of a firearm, and received a four-level enhancement for possessing a firearm “in connection with another felony offense” pursuant to § 2K2.1(b)(6)(B). The Sixth Circuit held that defendant’s theft of the firearms did not support the § 2K2.1(b)(6)(B) enhancement. The theft from the evidence room was not “another felony offense,” but converted defendant to the status of being a “felon in possession of a firearm.” U.S. v. Kilgore, 749 F.3d 463 (6th Cir. 2014).
6th Circuit rules handgun with added vertical foregrip was not “pistol” under the NFA. (330) Defendant was convicted of firearms charges, and received an enhanced offense level under § 4B1.4(b)(3)(A) based on the court’s finding that one of the firearms he possessed, a Romarm, Draco 7.62 caliber pistol, was the type described in the National Firearms Act, 26 U.S.C. § 5845(a). In additional to certain enumerated weapons, the NFA contains a catchall clause for the possession of “any other weapon” 26 U.S.C. § 5845(e). The latter category, however, expressly excludes a “pistol.” The Sixth Circuit held that the weapon that defendant was convicted of possessing was not a “pistol,” and thus, it counted as “any other weapon” under the NFA. The term “pistol” generally means a short firearm “intended to be aimed and fired from one hand.” While the weapon here was originally intended to be fired with one hand, it was later modified by the addition of a vertical foregrip – a stabilizing grip that was attached to the front of the firearm so that it could be fired using two hands to improve accuracy and counter recoil. The ATF has interpreted the addition of a vertical foregrip to a handgun to “make” the firearm subject to registration under the NFA. U.S. v. Black, 739 F.3d 931 (6th Cir. 2014).
6th Circuit rejects enhancement for possessing gun in connection with drug possession. (330) Defendant was arrested while attempting to sell a firearm, and was convicted of being a felon in possession. At the time of his arrest, he also possessed 2.4 grams of crack cocaine and five hydrocodone pills. The government requested a § 2K2.1b)(6)(B) enhancement, relying on the “fortress theory” to argue defendant had possessed the gun to facilitate the offense of felony drug possession. The Sixth Circuit held that that the record did not support the § 2K2.1b)(6)(B) enhancement. The “fortress theory,” presumes that guns in close proximity to drugs warrant the § 2K2.1(b)(6)(B) enhancement. However, the fortress theory has been applied sparingly in cases like this involving simple possession of small amounts of drugs. The government did not meet its burden of proving that the enhancement applied to defendant. First, defendant only had a small amount of drugs in his possession, and nothing suggested he was engaged in drug trafficking. Second, at the time of his arrest, defendant was attempting to sell his gun. Defendant could hardly have been emboldened in his drug possession, or have hoped to protect his modest stash, while simultaneously attempting to rid himself of the weapon. U.S. v. Seymour, 739 F.3d 923 (6th Cir. 2014).
6th Circuit holds facilitation was not a controlled substance offense, but no plain error. (330) Defendant pled guilty to firearms charges, and received an enhanced offense level under § 2K2.1 based in part on the district court’s finding that his Tennessee conviction for facilitation of the sale of cocaine was a “controlled substance offense.” Applying the categorical approach, the Sixth Circuit held that facilitation under Tennessee law was not a controlled-substance offense. The elements required to prove facilitation were not substantially equivalent to the elements of aiding and abetting, conspiracy, and attempt. Unlike those offenses, facilitation did not require the defendant to form an “intent to promote or assist in, or benefit from, the felony’s commission.” Nonetheless, the district court’s error was not plain. At the time of the district court’s decision, there was no controlling law on this issue, and the analysis required to reach this conclusion was nuanced and not obvious. The district court’s error was also not plain at the time of appellate review, since there was no intervening change of law between sentencing and the time of appellate review. U.S. v. Woodruff, 735 F.3d 445 (6th Cir. 2013).
6th Circuit upholds increase for using or possessing gun in connection with another offense. (330) Defendant was spotted on a gas station’s surveillance video pulling out a handgun and firing several rounds at an SUV as it drove away from the station. He pled guilty to being a felon in possession of ammunition. He challenged a § 2K2.1(b)(6) enhancement for possessing the firearm in connection with another felony, claiming that he fired the shots at the SUV in self-defense. The Sixth Circuit upheld the enhancement, agreeing that defendant did not prove self-defense by a preponderance of the evidence. Although defendant claimed that he only fired shots in response to incoming gunfire, the video gave no indication that defendant was under fire. Instead it showed defendant firing at the SUV after it departed the parking lot and was driving away, indicating that the driver of the SUV was attempting to leave the scene. The record supported the district court’s finding that defendant used the ammunition in connection with felonious and/or aggravated assault. U.S. v. Adkins, 729 F.3d 559 (6th Cir. 2013).
6th Circuit affirms reliance on state journal entry to find prior offense was crime of violence. (330) Defendant received an enhanced offense level under § 2K2.1(a)(4)(A) for a prior crime of violence. He had previously been convicted under Ohio Rev. Code § 2923.42A for engaging in “criminal conduct” as part of a criminal gang. The predicate criminal conduct listed in the state indictment was “assist[ing] in the commission of Aggravated Robbery … and/or Kidnapping … and/or Carrying Concealed Weapon … and/or Possession of Drugs.” To establish that defendant pled guilty to a violent predicate offense, the government sought to introduce the state court indictment and journal entry. The Sixth Circuit ruled that the state court journal entry was a “comparable judicial record” that may be examined by a sentencing court under Shepard to determine the nature of a prior conviction. The entry indicated that the state court imposed, as part of defendant’s sentence, a mandatory three-year term of post-release control under Ohio Rev.Code § 2967.28. Under state law, defendant could not have received a mandatory three-year post-release control sentence without pleading guilty to a third degree felony that was a crime of violence. . U.S. v. Adkins, 729 F.3d 559 (6th Cir. 2013).
6th Circuit applies “another felony” increase where felon in possession fired shots into crowd. (330) Defendant was arrested after firing gunshots outside a nightclub. He was convicted of being a felon in possession of a firearm and ammunition. Section 2K2.1(b)(6) applies when a defendant possesses a gun “with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony offense.” Defendant challenged this enhancement, arguing there was no evidence that he had any intent to commit another felony offense with the gun. The Sixth Circuit affirmed, noting that the district court found that defendant possessed the gun and that he committed another felony offense, namely, shooting into a crowd. These findings were not clearly erroneous and were sufficient to support the enhancement. U.S. v. Stafford, 721 F.3d 380 (6th Cir. 2013).
6th Circuit rules second-degree escape from secure facility was crime of violence. (330) Defendant pled guilty to knowingly possessing body armor after having been previously convicted of a crime of violence, in violation of 18 U.S.C. § 931(a)(2). He argued on appeal that the district court erred when it found that his prior Kentucky conviction for second-degree escape constituted a “crime of violence,” as defined by 18 U.S.C. § 16. Defendant had escaped from a secure facility by scaling a fence. The Sixth Circuit agreed that the offense was a crime of violence under 18 U.S.C. § 16(b). Escape from a secured facility is an active crime, requiring intentional conduct on the part of the offender. Such escapes involve individuals overcoming physical barriers, as well as security, and are the type of “traditional escapes … apt to lead to serious risks of physical injury.” Moreover, the risk involved was not simply accidental injury, but included the risk that the offender would use physical force against others and their property in the course of committing the offense. U.S. v. Stout, 706 F.3d 704 (6th Cir. 2013).
6th Circuit holds that offering to sell a controlled substance is a controlled substance offense. (330) Defendant pled guilty to being a felon in possession of a firearm. The district court applied a four-level enhancement under § 2K2.1(a)(2) based in part on its finding that his prior conviction for trafficking in cocaine, in violation of Ohio Revised Code § 2925.03(A)(1), was a controlled substance offense. Defendant argued that the offense did not qualify because the statute allows for a conviction for a mere “offer to sell” drugs. The Sixth Circuit found no error, finding that a conviction for knowingly offering to sell a controlled substance is a controlled substance offense. Because a conviction under § 2925.03(A)(1) requires an intent to sell a controlled substance, a conviction under the statute for an offer to sell is properly considered an attempt to transfer a controlled substance, which is a “controlled substance offense” under the guidelines. U.S. v. Evans 699 F.3d 858 (6th Cir. 2012).
6th Circuit rules Ohio conviction for assault on police officer was crime of violence. (330) Defendant pled guilty to being a felon in possession of a firearm. Based in part on its finding that defendant’s 2000 Ohio conviction for knowingly assaulting a police officer was a crime of violence, the district court applied a four-level enhancement under § 2K2.1(a)(2). The Sixth Circuit affirmed. The Ohio assault statute requires proof that a defendant knowingly caused or attempted to cause physical harm to another person. Ohio Rev.Code § 2903.13(A). One can knowingly cause or attempt to cause physical harm to another only by knowingly using or attempting to use physical force, i.e., force capable of causing physical injury. Conviction under the Ohio statute, § 2903.13(A), therefore, necessarily requires proof that a defendant knowingly used, or attempted to use, physical force capable of causing physical pain or injury and, accordingly, qualifies as a crime of violence under § 4B1.2(a)(1). The conviction also categorically qualified as a crime of violence under the residual clause of the guidelines it “otherwise involve[d] conduct that presents a serious potential risk of physical injury to another.” U.S. v. Evans 699 F.3d 858 (6th Cir. 2012).
6th Circuit reverses where plea did not admit quantity of firearms in the indictment. (330) Defendant pled guilty to two counts of receiving and selling stolen firearms. He argued that the court erred by enhancing his sentence based on the 75 firearms charged in the indictment, rather than the 17 guns defendant admitted during his plea hearing. The Sixth Circuit vacated and remanded for further proceedings. It was not true that defendant could only be held accountable at sentencing for the 17 guns that he admitted possessing and selling. A district court may enhance a sentence based on relevant conduct so long as its factual findings are supported by a preponderance of the evidence and the sentence imposed does not exceed the statutory maximum. However, defendant’s guilty plea should not have been treated as an admission of the quantity of firearms stated in the indictment. The quantity of firearms involved was not an element of the offense, and the quantity of firearms alleged in the indictment was not admitted by defendant at the plea hearing or in a plea agreement. Admission of facts from a guilty plea is limited to elements of the crime charged or those explicitly admitted to by the defendant. U.S. v. Louchart, 680 F.3d 635 (6th Cir. 2012).
6th Circuit reverses for failure to show that firearm facilitated possession of small amount of drugs. (330) Defendant was convicted of being a felon in possession of a firearm, and received a four-level enhancement under § 2K2.1(b)(6) for possessing the weapon in connection with another felony. Defendant simultaneously possessed the firearm and a small, consumption-level amount of marijuana, plus some cocaine residue. The drug possession was a felony rather than a misdemeanor only because of defendant’s prior drug convictions. The Sixth Circuit rejected the § 2K2.1(b)(6) enhancement, holding that the government did not demonstrate that defendant’s possession of the firearm facilitated, or had the potential to facilitate, his felony drug possession. Although the fortress theory can be applicable in a case involving mere drug possession, the firearm defendant possessed did not “embolden ” him to possess or use the drugs. Defendant possessed only about ten dollars worth of marijuana, and a baggy containing cocaine residue. Because of the street value of the drugs was negligible, the enhancement was not proper. U.S. v. Shields, 664 F.3d 1040 (6th Cir. 2011).
6th Circuit says defendant should have known that drug dealer would use guns in drug trafficking. (330) Defendant was convicted of purchasing firearms for other persons while stating that he was the actual purchaser. The Sixth Circuit upheld a § 2K2.1(b)(6) enhancement because defendant had reason to believe the firearms would be used in connection with another felony offense. By defendant’s own admission, Perkins and Suki, the drug dealers for whom defendant purchased the guns, were like brothers to him. Defendant also admitted that he saw Suki with the guns while Suki was selling crack cocaine and that he knew Suki had sold two of the guns to Mitchell, another drug dealer. The fact that defendant saw Suki using the guns while selling crack sometime after the transfer did not establish that defendant, at the time of the transfer, had “reason to believe” the guns would be used in drug trafficking. However, the use of a firearm during a drug deal is certainly a foreseeable result of transferring that firearm to a known drug dealer. It was not unreasonable to infer that, if someone is like a brother to you, you will be aware that he engages in drug trafficking. U.S. v. Harvey, 653 F.3d 388 (6th Cir. 2011).
6th Circuit relies on “fortress theory” to connect gun with defendant’s drug offenses. (330) Defendant pled guilty to being a felon in possession of a firearm, and at sentencing, the court added four levels under § 2K2.1(b)(6) for using or possessing a firearm in connection with another felony, i.e., delivery of cocaine base. To support the connection between the gun and defendant’s drug offense, the government relied on a “fortress theory,” under which a sufficient connection is established if it reasonably appears that the firearms found on the premises controlled or owned by defendant were to be used to protect the drugs or otherwise facilitate a drug transaction. The officers found a loaded pistol, 11.7 grams of cocaine base, a digital scale, packaging paraphernalia, $400 in cash, and residency paperwork inside a residence occupied by defendant and his family. A confidential informant observed defendant selling cocaine at defendant’s residence within 48 hours of the officers’ search. The Sixth Circuit held that these undisputed facts supported the government’s fortress theory. U.S. v. Taylor, 648 F.3d 417 (6th Cir. 2011).
6th Circuit rules Michigan conviction for shooting pepper spray at person was crime of violence. (330) Defendant was convicted of firearms charges, and received an enhanced offense level under § 2K2.1(a) for a prior conviction for a crime of violence. Defendant had previously been convicted in Michigan of shooting pepper spray at a person without justification, in violation of Mich. Comp. Laws § 750.224d(2). The Sixth Circuit agreed that shooting pepper spray at a person without justification qualified as a crime of violence. At a minimum, the law satisfies the residual clause of the second prong of the crime of violence definition because it “otherwise involves conduct that presents a serious potential risk of physical injury to another.” Pepper spray causes “extreme pain and prolonged impairment of bodily organs.” Unjustified use of pepper spray poses a serious risk of physical injury. U.S. v. Mosley, 635 F.3d 859 (6th Cir. 2011).
6th Circuit says possession of ammunition alone had potential to facilitate drug trafficking. (330) Defendant pled guilty to being a felon in possession of ammunition. The district court applied a four-level enhancement under § 2K2.1 (b)(6) because he possessed ammunition in connection with another offense, marijuana trafficking. Defendant argued that his possession of ammunition alone did not have the potential for facilitating his drug felony because simply possessing a bullet, without a gun, does not aid in the commission of drug possession. The Sixth Circuit held that under the so-called “fortress theory,” defendant’s possession of ammunition alone facilitated or had the potential to facilitate felony drug trafficking. Here, not only was the ammunition easily accessible and stored in close proximity to the illegal drugs, but the ammunition emboldened defendant in the knowledge that he was one step closer to having a fully-loaded firearm to protect himself and his drugs. The ammunition potentially served notice to potential buyers that defendant was a step closer to having a full-loaded firearm. U.S. v. Coleman, 627 F.3d 205 (6th Cir. 2010).
6th Circuit holds that conviction for resisting and obstructing an officer was not crime of violence. (330) The government argued that defendant’s prior conviction for resisting and obstructing an officer, in violation of former Mich. Comp Laws § 750.479 (2001), could be counted as a crime of violence under § 2K2.1(a) (1). However, the Sixth Circuit has held that a conviction for resisting and obstructing an officer under Mich. Comp. Laws § 750.81(d), a related Michigan statute, is not categorically a crime of violence. U.S. v. Mosley, 575 F.3d 603 (6th Cir. 2009). The Sixth Circuit held that defendant’s conviction for resisting and obstructing an officer was not a crime of violence. The analysis in Mosley applied here, because the resisting and obstructing statute at issue in both cases involved at least two categories of crimes, one of which was not categorically a crime of violence. The records showed that defendant’s conviction was for violation of the knowing-failure-to-comply portion of the resisting and obstructing statute. U.S. v. Gibbs, 626 F.3d 344 (6th Cir. 2010).
6th Circuit says that walkaway escape did not constitute crime of violence. (330) Defendant received an enhanced offense level under § 2K2.1(a)(2) because the district court found he had two or more prior felony convictions for a crime of violence. The court counted defendant’s prior conviction for prison escape, even though it was essentially a “walkaway” escape from a community correction center. Defendant had left the facility where he was assigned without permission. The government conceded, and the Sixth Circuit agreed, that this conviction for a “walkaway” prison escape did not constitute a crime of violence. Before Chambers v. United States, 555 U.S. 122, 129 S.Ct. 687 (2009), the Sixth Circuit viewed all escape offenses, from a failure to report to a breakout, as crimes of violence. Chambers held that a failure to escape was not a violent felony, and based on Chambers, the Sixth Circuit held that a walkaway escape under Kentucky law was not a crime of violence. U.S. v. Ford, 560 F.3d 420 (6th Cir. 2009). The parallel between the Kentucky walkaway escape and defendant’s Michigan walkaway escape was self-evident. U.S. v. Gibbs, 626 F.3d 344 (6th Cir. 2010).
6th Circuit permits one day in jail and ten years supervised release for child porn offense. (330) Defendant pled guilty to possessing child pornography. His advisory guideline range was 57-71 months, but the district court sentenced defendant to only one day of incarceration and a ten-year period of supervised release. The Sixth Circuit affirmed, holding that the district court’s explanation for the extent of the variance was sufficient in light of the record before it. Defendant’s sentencing memo urged the court to vary downward, citing his remorse and contending that the collateral consequences of prosecution made a lengthy sentence unnecessary. Defendant’s psychologist testified that if defendant continued treatment, the prognosis was positive, and opined that a term of incarceration could set back defendant’s treatment. The government presented no psychological evidence of its own. The government did not make any affirmative arguments about why defendant’s circumstances or this offense compelled a within-Guidelines sentence. Moreover, despite the district court’s request that parties submit briefing on the potential for a downward variance to result in sentencing disparities, the government did not cite a single case in either its sentencing memo or at the sentencing hearing. U.S. v. Stall, 581 F.3d 276 (6th Cir. 2009).
6th Circuit upholds increase for possessing firearm in connection with another offense. (330) Defendant was convicted of being a felon in possession of a firearm. Based on the marijuana plants found in his home, he received a § 2K2.1(b)(6) increase for possessing a firearm in connection with another felony offense. Defendant argued that the government failed to prove that the firearms were used to facilitate or had the potential to facilitate the manufacture of marijuana. The Sixth Circuit upheld the increase. Defendant possessed three guns on the same property where he was growing 14 marijuana plants. Although he claimed that the firearms were used by his wife for protection, the fact that multiple firearms were found in the small bedroom that he shared with his wife, in close proximity to the processed marijuana and drug paraphernalia, contradicted this assertion. The guns were positioned for ready access—propped next to the night stand, on a chair at the foot of the bed, and underneath the mattress. There was no doubt that the presence of multiple loaded firearms and ammunition in his bedroom, in close proximity to the processed marijuana and plants on the perimeter of the property, was not the result of accident or coincidence. U.S. v Angel, 576 F.3d 482 (6th Cir. 2009).
6th Circuit affirms mandatory consecutive firearms sentences. (330) Defendant argued that the 660 months of his 895-month sentence that were based on three § 924(c) convictions were unreasonable because (1) two of these convictions were based on occurrences on the same day and involved the same gun, (2) the district court did not consider the 18 U.S.C. § 3553(a) factors, and (3) it was effectively a life sentence given his age. The Fourth Circuit found no error. The 660 months were imposed pursuant to mandatory minimum sentences and a statutory requirement that the sentences run consecutively to any other terms of imprisonment. See 18 U.S.C. § 924(c)(1) (D)(ii). Section 3553(a) factors do not apply to congressionally mandated sentences. The balance of the sentence—235 months—was imposed for the remaining counts. For those counts, the district court properly considered the § 3553(a) factors. The sentence was within the Guidelines range, and thus was presumptively reasonable on review. U.S. v. Penney, 576 F.3d 297 (6th Cir. 2009).
6th Circuit finds Michigan conviction for resisting and obstructing police officer was not crime of violence. (330) Defendant received an enhancement under § 2K2.1(a) (3) based on the district court’s finding that his prior conviction for resisting and obstructing a police officer under Michigan law was a crime of violence. The Sixth Circuit reversed. The offense not only covers an individual who assaults, batters or wounds a law enforcement officer, but it also covers an individual who “obstructs” an officer, which includes “a knowing failure to comply with a lawful command.” An assault on an officer and a knowing failure to comply with an officer’s lawful command involve “behavior” that “differs so significantly” that they must be treated “as different crimes.” Chambers v. U.S., 555 U.S. 122, 129 S.Ct. 687 (2009). A “knowing failure to comply with a lawful command” is not a crime of violence. The panel remanded, so that the government could have the opportunity to show whether defendant “necessarily admitted” committing a crime of violence. U.S. v. Mosley, 575 F.3d 603 (6th Cir. 2009).
6th Circuit holds that fleeing and eluding a police officer is violent felony. (330) The Sixth Circuit originally upheld the district court’s finding that defendant’s prior conviction for fleeing and eluding a police officer was a violent felony under the Armed Career Criminal Act. The Supreme Court remanded for reconsideration in light of Begay v. U.S., 553 U.S. 137, 128 S.Ct. 1581 (2008) and Chambers v. U.S., 555 U.S. 122, 129 S.Ct. 687 (2009). The Sixth Circuit held that these cases did not undermine its previous holding. Fleeing and eluding a police officer offense is critically different from driving under the influence, the offense involved in Begay. In Fleeing and eluding, the offender makes a conscious decision to flee rather than to stop his vehicle as requested by a police officer. Moreover, it involves aggressive conduct; the offender is attempting to outrun a police cruiser. Chambers concluded that “failure to report” was a separate crime from escape because the behavior that underlies a failure to report is more passive and less likely to involve a risk of physical harm than the behavior underlying an escape from custody. Fleeing and eluding involves aggressive conduct that presents a serious potential risk of physical injury to another. U.S. v. LaCasse, 567 F.3d 763 (6th Cir. 2009).
6th Circuit says mandatory consecutive 10-year term for conspiracy to carry firearm was plain error. (330) Defendant was convicted of racketeering and conspiracy to use or carry a firearm in a drug trafficking crime, in violation of 18 U.S.C. §924(o). The district court sentenced him to 396 months, which included a 10-year consecutive sentence in the §924(o) conviction. The Sixth Circuit reversed the 10-year consecutive sentence. Defendant was convicted of conspiring to violate §924(c), which was a violation of §924(o). The 10-year consecutive sentence was based on the mandatory minimum in §924(c)(1)(A)(iii), and the mandatory consecutive sentence in §924(c)(1)(D)(ii). By contrast, §924(o) does not require a consecutive sentence. Instead of incorporating the penalties for the primary offense, §924(o) has a 20-year maximum sentence (which is increased to life if the firearm is a machine gun or destructive device), and no mandatory minimum. U.S. v. Fowler, 535 F.3d 408 (6th Cir. 2008).
6th Circuit holds Michigan attempted second-degree criminal sexual conduct was not a crime of violence. (330) Defendant pled guilty to being a felon in possession of a firearm. At issue was whether his prior Michigan conviction for attempted criminal sexual conduct was a crime of violence, which would warrant a higher offense level under § 2K2.1(a). A person is guilty of criminal sexual conduct in the second degree if “sexual contact [with another person] occurs under circumstances involving the commission of any other felony.” The government contended that the offense qualified as a crime of violence under the “otherwise” clause of § 4B1.2(a)(2) because it involved sexual contact with a minor. However, the Sixth Circuit found that the offense did not require proof that the sexual contact was with a minor. Although the amended information identified the “other felony” as solicitation of a minor for immoral purposes, it did not, as a categorical matter, necessarily require proof of sexual contact with a minor. Moreover, relying on the Supreme Court’s decision in Begay v. U.S., 553 U.S. 137, 128 S. Ct. 1581 (2008) (DUI conviction falls outside scope of ACCA’s “otherwise” clause because it was “too unlike” provision’s listed examples), the panel ruled that § 4B1.2(a)(2)’s “otherwise” clause (defining crime of violence) should also be limited to crimes that are similar in both kind and in degree of risk to the enumerated examples. U.S. v. Bartee, 529 F.3d 357 (6th Cir. 2008).
6th Circuit says increase for possessing gun in connection with another felony was not double counting. (330) Defendant made threatening phone calls to the offices of several public officials, claiming that he was going to “get rid of” these officials. When police arrived at his house, they found him alone in his residence with a semi-automatic rifle in plain sight. He pled guilty to possessing a firearm while subject to a domestic violence order. The district court applied a four-level enhancement under § 2K2.1(b)(6) for possessing a firearm which had the potential to facilitate another felony offense. Defendant argued that the increase amounted to double counting, because all firearms are capable of facilitating another felony offense. The Sixth Circuit disagreed. A court can apply the enhancement only if the government establishes a nexus between the firearm and an identifiable independent felony. Here, the record showed that defendant used the firearm in connection with the federal offense of threatening to kill a U.S. Congressman. U.S. v. Bullock, 526 F.3d 312 (6th Cir. 2008).
6th Circuit includes 2002 and 2006 firearm possessions in relevant conduct to 2004 possession. (330) Defendant pled guilty to one count of being a felon in possession of a firearm based on his May 2004 possession of several firearms. The guns were found in defendant’s vehicle by officers who arrested him for drunk driving. The district court found that defendant’s illegal possession of firearms in August 2002 and March 2006 was relevant conduct under § 1B1.3(a)(2), resulting in a four-level increase to his base offense level. The Sixth Circuit affirmed. The 2002 and 2006 were “part of the same course of conduct or common scheme or plan” as his felon-in-possession conviction. Although there was a significant time lapse between offenses, there was a substantial similarity between the incidents. Defendant indicated that he carried firearms regularly. U.S. v. Phillips, 516 F.3d 479 (6th Cir. 2008).
6th Circuit finds no double counting in firearm statute and official victim adjustment. (330) Defendant pled guilty to a number of drug and firearms charges related to a drug transaction that turned into an armed robbery. He argued that the court enhanced his offense level under § 3A1.2(c) (assaulting a police officer) for the same activity it sentenced him under 18 U.S.C. § 924(c)(1)(A)(iii). The Sixth Circuit found no double counting problem. A key aspect of defendant’s conduct led to the § 3A1.2 enhancement – the fact that the people defendant was shooting at were police officers and not simply private citizens – was not a factor of the crime set forth in § 924(c)(1)(A)(iii). The mere fact that a drug trafficker uses a gun against a law enforcement officer does not preclude a court from applying both the firearm statute and the official victim adjustment. U.S. v. Thompson, 515 F.3d 556 (6th Cir. 2008).
6th Circuit permits court to treat conduct underlying dismissed count as “relevant conduct.” (330) Police responding to a suspected burglary at defendant’s house found an unloaded sawed-off shotgun on top of a trash can in the rear of the garage. Defendant admitted that the shotgun was his. An investigation showed that the shotgun was stolen. Police also found firearm ammunition in defendant’s bedroom. Defendant pled guilty to being a felon in possession of ammunition. The district court applied a 12-level enhancement for possession of a stolen shotgun with a barrel of less than 18 inches, and the Sixth Circuit affirmed. Officers recovered the gun from defendant’s residence and defendant admitted on two separate occasions that he owned the gun. The relevant conduct provisions of the Sentencing Guidelines applied to defendant’s possession of the shotgun. The conduct was similar to the offense of conviction, i.e. being a felon in possession of nine-millimeter and assault-rifle ammunition. The offenses also occurred at the same time and at the same place. Thus, the district court could fairly find that defendant’s possession of a sawed-off shotgun should be treated as relevant conduct under Guideline section 1B1.3, which allows consideration of dismissed conduct. U.S. v. Conway, 513 F.3d 640 (6th Cir. 2008).
6th Circuit holds that 1,772-month prison term for robbery and firearms violations was not cruel and unusual punishment. (140) On six different occasions, defendant and/or his accomplices robbed a bank by brandishing firearms and abducting bank employees from their homes. Defendant’s guideline range was 188-235 months, but after imposing a variety of consecutive sentences for six counts of brandishing a firearm during the robberies, the district court sentenced him to a total of 1,772 months. The Sixth Circuit held that the 1,772-month sentence was reasonable, and did not constitute cruel and unusual punishment. Although defendant did not fire a gun, no one was injured, and he lacked any previous criminal history, this did not render his sentence unreasonable. Under 18 U.S.C. § 924(c), firearms convictions may not run concurrently with any other term of imprisonment, including the sentence for the underlying offense. U.S. v. Watkins, 509 F.3d 277 (6th Cir. 2007).
6th Circuit finds defendant was not entitled to reduction for possession of shotgun solely for collection purposes. (330) Defendant’s family owned a Belknap shotgun for three generations. Federal law, however, prohibited defendant from possessing a firearm. Although defendant’s employer held the gun for defendant for a year, after defendant was fired, he took the shotgun home. Several days later, deputies found the gun in defendant’s residence while responding to a domestic dispute. He argued that he should receive a reduction under § 2K2.1(b)(2) because the shotgun was a family heirloom possessed “solely for lawful sporting purposes or collection.” He noted three relevant circumstances: (1) deputies found the gun in three pieces, in three separate rooms of the house (broken down due to children living in the house); (2) no ammunition for the gun was found in the house; and (3) the gun held sentimental value in the family, a tradition he intended to follow by passing it down to his child. However, the gun was neither a classic gun nor valuable in any objective sense. The district court credited these assertions, but also noted that the gun was not “stored in a manner showing that it was valued or treasured.” The Sixth Circuit upheld the denial of the reduction. Sentimental attachment alone does not earn the reduction. U.S. v. Baker, 501 F.3d 627 (6th Cir. 2007).
6th Circuit finds sufficient connection between defendant’s gun and drugs found in companion’s purse. (330) Police responding to a call about underage drinking and drug use at a motel found defendant Moore, marijuana and a gun. Defendant pled guilty to being a felon in possession of a firearm. The district court applied a four-level enhancement under § 2K2.1(b)(6) for possessing a firearm in connection with another felony, in this case the marijuana found in Moore’s purse. Defendant argued that the government failed to establish a connection between the gun and the marijuana found in Moore’s purse. The Sixth Circuit upheld the increase. This circuit has adopted the “fortress theory” which holds that a connection is established if “it reasonably appears that the firearm found on the premises controlled or owned by a defendant and in his actual or constructive possession are to be used to protect the drugs or otherwise facilitate a drug transaction.” The court’s findings were not clearly erroneous. The fact that the gun was found in close proximity to the drugs was particularly compelling evidence that it was used to facilitate drug trafficking under the fortress theory. The district court did not err in concluding that defendant possessed the marijuana in Moore’s purse given Moore’s statement that the items in her purse belonged to defendant, defendant’s relationship with Moore, and defendant’s prior drug convictions. U.S. v. Richardson, 510 F.3d 622 (6th Cir. 2007), abrogation recognized by U.S. v. Taylor, 648 F.3d 417 (6th Cir. 2011).
6th Circuit holds that five years’ probation for possessing unregistered gun was reasonable. (330) While investigating a domestic dispute, a deputy found four firearms in defendant’s vehicle, including a shotgun with a barrel length of about eight inches. He pled guilty to possessing an unregistered firearm having a barrel length of less than 18 inches, in violation of 26 U.S.C. § 5861(d). His recommended guideline range was 27-33 months. While the statutory maximum was 10 years, defendant was eligible for probation, 18 U.S.C. § 3561(c)(1). The district court granted a downward variance, sentencing defendant to five years’ probation, including one year of home detention. The court also required defendant to undergo mental health sentencing, anger management, and drug and alcohol testing. The variance was based on defendant’s stated remorse for his actions and the effect incarceration would have on defendant’s older son. The Sixth Circuit found the sentence procedurally and substantively reasonable. The court’s consideration of the § 3553(a) factors was sufficiently detailed, even if the court did not engage “in a ritualistic incantation of the § 3553(a) factors.” As for the substantive reasonableness, the case was indistinguishable from the circumstances presented in U.S. v. Husein, 478 F.3d 318 (6th Cir. 2007) (court approved 99.91% variance based on extraordinary family circumstances). Defendant’s older son received a heart transplant in 2002, and defendant shared the burden of providing constant care for him. Further, defendant demonstrated remorse for his crime. U.S. v. Baker, 502 F.3d 465 (6th Cir. 2007).
6th Circuit says mandatory consecutive sentence for brandishing firearm did not justify sentence reduction for underlying offense. (330) Defendants were convicted of various bank robbery counts and brandishing a firearm during and in relation to a crime of violence. The latter charge carried a mandatory consecutive seven-year term of imprisonment, 18 U.S.C. § 924(c). At sentencing, the court expressly said that it was granting “a downward departure to some extent because I feel that adding on a mandatory seven years truly inflates the sentence.” The court granted defendant a downward variance of 34 months (35 percent below the minimum guideline range). The Sixth Circuit reversed. When any downward variance of the guideline range is based upon the effect of a mandatory sentence, congressional intent is repudiated, just as if the mandatory sentence itself had been reduced. Section 3553(a) factors do not apply to congressionally mandated sentences. Although Booker gave substantial discretion to the sentencing court to impose sentences below a mandatory maximum, nothing in Booker allows a court to negate the imposition of a mandatory minimum sentence. A court’s disagreement with Congress as to what constitutes an appropriate sentence for a repeat offender is a policy matter, and not a permissible factor upon which to base a sentencing determination. U.S. v. Franklin, 499 F.3d 578 (6th Cir. 2007).
6th Circuit, disagreeing with other circuits, rules that possession of a sawed-off shotgun is not a violent felony under ACCA. (330) The district court refused to sentence defendant under the Armed Career Criminal Act (ACCA), ruling that his prior conviction for possession of a sawed-off shotgun was not a “violent felony.” Because possession of a sawed-off shotgun is not one of the specifically named offenses and does not involve the use of explosives or the threat of physical force against another person, it would only qualify as a predicate ACCA offense if it was deemed to be “conduct that presents a serious potential risk of physical injury to another.” The First, Fourth, Fifth, Seventh, Eighth and Ninth Circuits have all held that mere possession of a sawed-off shotgun is either a “crime of violence” under the Sentencing Guidelines or a “violent felony” under the ACCA. Disagreeing with the weight of this authority, the Sixth Circuit concluded that possession of a sawed-off shotgun is not a violent felony under the ACCA. A number of cases have held that a prior violation of the felon-in-possession statute itself is not a predicate offense under the ACCA. See, e.g., U.S. v. Doe, 960 F.3d 221 (1st Cir. 1992). The crime of possessing a sawed-off shotgun is similar to the prohibition on felons possessing firearms, as both prohibit mere possession. Further, while some instances of sawed-off shotgun possession create a greater risk of harm to others, precedent required the court to consider the “least objectionable” conduct that would violate the statute. The panel also relied on its recent opinion in U.S. v. Flores, 477 F.3d 431 (6th Cir. 2007), holding that carrying a concealed weapon did not present a serious potential risk of physical injury. Judge McKeague dissented. U.S. v. Amos, 501 F.3d 557 (6th Cir. 2007).
6th Circuit finds within-guidelines sentence was adequately explained. (330) Defendant argued that his within-guideline range sentence was unreasonable, citing the now-vacated decision in U.S. v. Vonner, 452 F.3d 560 (6th Cir.), vacated and rehearing en banc granted (Oct. 12, 2006), for the proposition that when a criminal defendant raises a specific claim as to why a sentence below the guidelines range should be imposed, meaningful appellate review requires that the district court consider the argument and explain why it rejected that argument. Defendant had acknowledged that the decision was vacated, but urged the Sixth Circuit to delay its decision until the Supreme Court decided Rita. Post-Rita, defendant argued that his sentence should be vacated and that he should be resentenced because he had called a number of factors to the district court’s attention, including his drug addiction, and his mental, emotional, psychological and medical difficulties. The Sixth Circuit rejected defendant’s challenge. Defendant’s within-guidelines sentence was adequately explained, as the judge considered the applicable range and the factors in § 3553(a). Moreover, the court carefully considered the nature and circumstances of defendant’s drug operations, specifically referencing the facts underlying the crime. The court also noted that defendant had a record of drug convictions, that his choice to sell cocaine form his house was a serious offense, and that his likelihood of recidivism was high. The panel declined to issue an advisory opinion to better define what a criminal defendant must do to rebut the presumption of reasonableness. U.S. v. McGee, 494 F.3d 551 (6th Cir. 2007).
6th Circuit finds 235 months reasonable for armed career criminal. (330) Defendant, convicted of being a felon in possession of a firearm, had four prior convictions for “violent felonies” under the Armed Career Criminal Act (18 U.S.C. § 924(e)) and a total of 23 criminal history points. Under the ACCA, defendant had a sentencing range of 235-293 months. The district court imposed a sentence of 235 months, noting that neither the presentence report nor defendant had identified any positive information to present. The Sixth Circuit held that in light of defendant’s extensive criminal history, the sentence was not unreasonable. U.S. v. Nance, 481 F.3d 882 (6th Cir. 2007).
6th Circuit relies on “fortress” theory to uphold increase for using firearm in connection with another felony. (330) Police responding to a 911 call entered a residence and found defendant asleep with a fully loaded assault rifle within arm’s reach. He was convicted of being a felon in possession of a firearm, and the district court applied a § 2K2.1(b)(5) enhancement for using a firearm in connection with another felony. Although the district court did not explicitly identify the “other felony offense” that it found was linked to defendant’s use of the firearm, the Sixth Circuit nonetheless affirmed the enhancement. Under the “fortress” theory, the § 2K2.1(b) (5) enhancement can apply where a defendant has used a firearm to protect drugs, facilitate a drug transaction, or embolden himself while participating in felonious conduct. Here, the rifle was of a type commonly used by drug dealers, defendant was staying at a known “dope house,” defendant purposefully kept the gun and ammunition nearby after the residence was shot up the night before, and the drug-dealing owner of the gun had entrusted defendant with it care. These are the actions of someone intending to protect himself and the drug-related operations at the house. U.S. v. Huffman, 461 F.3d 777 (6th Cir. 2006).
6th Circuit upholds finding that robberies committed on same night were unrelated. (330) On a evening in 1994, defendant robbed the occupants of a vehicle who had been parked in front of a drug dealer’s house. After fleeing 300 feet, he came across a man in an alley that defendant knew was a drug user. Defendant then robbed this man. Defendant argued that the two offenses were actually one offense for criminal history and § 2K2.1(a)(2) purposes because they were part of a single common plan or scheme. The district court disagreed, finding that defendant’s scheme was to rob people who showed up at the drug house to purchase drugs, and that the second robbery was not part of that scheme. The Sixth Circuit upheld the district court’s findings that the crimes were not related. Offenses are not necessarily related merely because they were committed within a short period of time or are part of a crime spree. The crimes at issue here, while occurring on the same night, appeared unrelated. Defendant did not plan the second robbery, but happened to stumble upon his victim. The victims were assaulted in different locations and there was no evidence that the commission of the first offense required commission of the second. U.S. v. Alford, 436 F.3d 677 (6th Cir. 2006).
6th Circuit holds that defendant admitted possession of firearm for Booker purposes. (330) Defendant argued that the court engaged in impermissible judicial fact-finding when it increased his sentencing range four levels for possession of a weapon in connection with another felony offense. The Sixth Circuit ruled this determination was clearly supported by the facts to which defendant admitted, and therefore there was no Booker violation. In the plea agreement, defendant stipulated that he pointed his gun at the victim and fired it at him. Based on these facts, a determination that defendant’s conduct toward the victim constituted an aggravated assault was not clearly erroneous. U.S. v. Alford, 436 F.3d 677 (6th Cir. 2006).
6th Circuit holds that Tennessee conviction for facilitation of aggravated assault was crime of violence. (330) Defendant received an enhanced offense level under § 2K2.1(A)(4) because the court found that his prior conviction for facilitation of aggravated assault was a crime of violence. Defendant argued that a court may not look into the conduct underlying a facilitation conviction, and since many felonies can be facilitated without any risk of bodily harm to anyone, the risk of bodily harm was not an essential element of the crime. The Sixth Circuit disagreed. Under the statute, a defendant is never convicted of a generic “facilitation of a felony” charge. Rather, a defendant convicted for facilitation is always found to have facilitated a specific felony. Defendant pled guilty to facilitation of aggravated assault. The indictment charged that defendant knew an individual intended to commit an aggravated assault and he knowingly furnished substantial assistance to this individual in the commission of an aggravated assault. This, by its nature, inherently involved conduct that presented a serious potential risk of physical injury to another, and therefore was a crime of violence. U.S. v. Chandler, 419 F.3d 484 (6th Cir. 2005).
6th Circuit holds that 37-month sentence for felon in possession charge was reasonable. (330) Defendant pled guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The guideline calculations resulted in a sentencing range of 37-46 months, and the district court imposed a 37-month sentence. The Sixth Circuit found no Booker error, because in addition to determining defendant’s sentence under the guidelines, the district court also treated the guidelines as advisory and sentenced defendant pursuant to the sentencing factors outlined in 18 U.S.C. § 3553(a). The court found that the sentence it imposed would afford adequate deterrence and just punishment. In addition, the sentence would give defendant the opportunity to get a GED and pick up a trade so that upon the end of his sentence he could become a productive member of society. The 37-month sentence was reasonable, in light of the guidelines recommended sentencing range and the reasons expressed by the court. U.S. v. Chandler, 419 F.3d 484 (6th Cir. 2005).
6th Circuit says § 2X1.1 cross-reference can be used even where firearm is not same firearm that resulted in conviction. (330) Defendant was convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). “If the defendant used or possessed any firearm in connection with the commission … of another offense,” § 2K2.1 directs a court to apply § 2X1.1. with respect to that other offense, if it would result in a higher offense level. The district court found defendant’s July 4, 2002 firearms offense was part of a course of conduct that culminated in his July 17 intentional shooting and severe injury of Young, and applied the cross reference to sentence defendant under § 2A2.2 (Attempted Murder). The Sixth Circuit noted that at the resentencing required by Booker, the cross-reference could be applied even if defendant used a different firearm to shoot Young than the firearm that he possessed on July 4, 2002. On remand, the court may apply § 2K2.1(c)(1) if it finds a clear connection between the firearm that defendant possessed on July 4, 2002 and any different firearm he possessed thereafter in order to shoot Young, intimidate witnesses to the Young shooting, and/or rob individuals in order to obtain money that would assist defendant’s effort to avoid detection for shooting Young. U.S. v. Settle, 414 F.3d 629 (6th Cir. 2005).
6th Circuit finds “clear and specific evidence” that court would not have imposed lesser sentence under advisory guidelines. (330) Defendant was convicted of possession of a machine gun, in violation of 18 U.S.C. 922(o), and received a two-level enhancement under § 2K2.1(b)(4) because the gun was stolen. The Sixth Circuit rejected defendant’s Booker challenge to the enhancement. Defendant admitted in the plea agreement that the machine gun qualified as a destructive device and that it was stolen. The court’s error in treating the guidelines as mandatory did not constitute plain error. The presumption of prejudice can be rebutted in those rare cases where the record contains “clear and specific evidence” that the district court would not have sentenced defendant to a lower sentence under an advisory guideline scheme. The record here contained such “clear and specific” evidence. First, the court imposed the enhancements based not only on the guidelines, but on the terms of defendant’s plea agreement. Second, at sentencing, based on defendant’s criminal history, the court actually considered an upward departure and referred to defendant as a “menace”. The court ended up ended up sentencing him to the maximum possible guideline sentence. Thus, the court would have imposed the same or lengthier sentence had it not believed it was bound by the guidelines. U.S. v. Webb, 403 F.3d 373 (6th Cir. 2005).
6th Circuit holds that intent to permanently deprive not required for gun to be “stolen.” (330) Defendant pled guilty to being a felon in possession of a firearm. The district court applied a § 2K2.1(b)(4) increase for possession of a “stolen” firearm. When defendant was apprehended, he had a gun in his car that belonged to his father and that defendant had taken without permission. Defendant claimed he had not “stolen” the gun, but had taken it with the intent to commit suicide. He claimed that he assumed the gun would eventually be returned to his father, and thus it was not “stolen.” The Sixth Circuit upheld the stolen firearm enhancement, rejecting defendant’s argument that the intent of permanent deprivation is required in order for property to be “stolen.” The court looked to federal law, rather than the common law definition of larceny, to determine the meaning of “stolen.” While the guidelines do not define the term, other courts addressing the same question have held that a defendant’s intent to “permanently deprive” is not required in order for a firearm to be stolen. Nonetheless, resentencing was required in light of U.S. v. Booker, 543 U.S. 220 (2005). U.S. v. Jackson, 401 F.3d 747 (6th Cir. 2005).
6th Circuit holds that type of firearm must be charged in indictment and proved beyond reasonable doubt. (330) Section 924(c)(1) provides for mandatory additional sentences for using or possessing any firearm during a crime of violence. If the firearm involved is a certain type of firearm, § 924(c)(1)(B) increases the mandatory minimum to 10 or 30 years, depending on the type of firearm involved. The Sixth Circuit held that the mandatory minimum in the firearm-type provision in § 924 is not binding on a sentencing court unless the type of firearm involved is charged in the indictment and proved to a jury beyond a reasonable doubt. The firearm types set out in § 924 are elements of separate crimes, rather than sentencing factors. Therefore, Booker requires § 924 firearm enhancements be charged in the indictment and proved to a jury beyond a reasonable doubt. The panel did not address the general constitutionality of mandatory minimum sentences imposed through judicial fact-finding, a practice explicitly approved by the Supreme Court prior to Booker, when traditional sentencing factors, rather than elements, are involved. U.S. v. Harris, 397 F.3d 404 (6th Cir. 2005).
6th Circuit holds that fleeing and eluding police is crime of violence. (330) Section 2K2.1(a)(4)(A) provides for an enhanced offense level if a firearm defendant has previously been convicted of any “crimes of violence.” At the time of sentencing, the application notes to § 2K2.1 referred to the definition of crime of violence in § 4B1.2(a). The Sixth Circuit held that defendant’s prior Michigan conviction for third-degree fleeing and eluding involved conduct presenting a serious potential risk of physical injury to another, and thus was a crime of violence. When a motorist disobeys an officer and flees in his car, that person creates a conspicuous potential risk of injury to pedestrians, vehicles sharing the road, passengers in the fleeing car and the pursing officer. The suspect’s eventual apprehension also creates a risk of injury to others. In this respect, fleeing and eluding resembles escape. U.S. v. Martin, 378 F.3d 578 (6th Cir. 2004).
6th Circuit rules court had no authority to modify sentence, despite retroactive amendment. (330) Defendant was convicted of drug trafficking and carrying a firearm in connection to drug trafficking. He moved to modify his sentence under 18 U.S.C. § 3582(c)(2), claiming that Amendment 599 to U.S.S.G. § 2K2.4 barred the two-level firearm increase he received under § 2D1.1(b)(1). The enhancement was called for by defendant’s Rule 11(e)(1)(C) plea agreement. (now rule 11(c)(1)(C)). This section expressly limits a district court’s authority to modify the agreement. Once a court accepts a Rule 11(e)(1) (C) agreement, it is bound by the agreement. The Sixth Circuit held that absent an agreement of the parties, the plain language of the current version of Rule 11(e)(1)(C) generally precluded the district court from altering the parties’ agreed sentence under 18 U.S.C. § 3582(C). This conclusion applies despite the retroactivity of a subsequent amendment to a relevant guideline used to determine the defendant’s sentence. Therefore, even assuming Amendment 599 would have barred the enhancement, the district court properly denied defendant’s § 3582(c)(2) motion. U.S. v. Peveler, 359 F.3d 369 (6th Cir. 2004), implied overruling recognized by U.S. v. Taylor, 2011 WL 3319426 (6th Cir. 2011) (unpublished), No. 08-6026.
6th Circuit upholds court’s authority to vacate initial order sustaining objection to contested weapon enhancement. (330) Defendant’s PSR recommended a § 2K2.1(b)(5) enhancement for using a firearm in connection with another felony, a state-law felonious assault against defendant’s fiancée. Defendant objected, noting that he had pled guilty to misdemeanor assault. In March, the trial judge entered an order sustaining defendant’s objection, declaring that the U.S. had failed to prove sufficient facts by a preponderance of the evidence. The prosecution moved for reconsideration of that order, asserting that it was prepared to offer probative testimony from the victim. The court granted the government’s motion, and accepted testimony from three prosecution witnesses as to the details of the assault. It then found that the government had met its burden, and imposed the enhancement. The Sixth Circuit ruled that the district court did not abuse its discretion by hearing additional testimony concerning the “felonious use” enhancement following its initial resolution of that controversy. The government gave two compelling reasons why it had not been prepared to offer factual proof at the March hearing (a key witness was unavailable, and the prosecutor had construed defendant’s objection as a legal contention that the increase required an actual felony conviction). Further, defendant was given a fair opportunity to cross-examine the prosecution witnesses and offer his own rebuttal evidence. U.S. v. Reid, 357 F.3d 574 (6th Cir. 2004).
6th Circuit affirms “another felony” increase where defendant did not object to PSR. (330) Defendant was convicted of being a felon in possession of a firearm. He received a four-level increase under § 2K2.1(b)(5) for possessing the firearm in connection with another felony offense. The Sixth Circuit affirmed. Defendant’s PSR detailed his involvement during his possession offense with a drug transaction for which his companion was convicted in state court. Defendant did not object to the PSR, and his counsel specifically accepted it. The district court is allowed to accept as true all factual allegations in a PSR to which the defendant does not object. The district court found, without objection, that defendant possessed the gun in conjunction with a felony drug offense. There was no plain error in this finding. U.S. v. Carter, 355 F.3d 920 (6th Cir. 2004).
6th Circuit holds that use of cross-reference did not violate Apprendi. (330) At sentencing, the district court used the cross-reference in § 2K2.1(c)(1)(A) to sentence defendant under the attempted murder guideline. Defendant challenged the use of the cross-reference based on U.S. v. Stubbs, 279 F.3d 402 (6th Cir. 2002). In Stubbs, the Sixth Circuit reversed a mandatory 60-month sentence, resulting from a cross-reference under § 2K2.1(c)(1)(A), finding that the increase in the minimum sentence was “more fundamental” than sentencing in excess of the statutory maximum, and was prohibited by Apprendi. The Sixth Circuit rejected defendant’s challenge, noting that Stubbs is no longer good law. Neither Stubbs nor the precedent on which it relied survived a recent Supreme Court case Harris v. U.S., 536 U.S. 545 (2002), overruled by Alleyne v. U.S., 133 S.Ct. 2151 (2013), which held that the constitutional mandates of Apprendi do not apply to the Sentencing Guidelines when the defendant’s sentence remains below the maximum sentence authorized by statute. Thus, “a fact that merely activates or increases a statutorily mandated minimum sentence may, at the legislature’s discretion, be submitted to a judge and proved only by a preponderance of the evidence.” U.S. v. Chapman, 305 F.3d 530 (6th Cir. 2002). Since defendant’s sentence fell well within statutory limits, the use of the cross-reference was not improper. U.S. v. Helton, 349 F.3d 295 (6th Cir. 2003).
6th Circuit holds that gun was possessed in connection with drug offense. (330) Defendant was convicted of being a felon in possession of a firearm. Section 2K2.1(b)(5) provides for a four-level enhancement if “the defendant used or possessed any firearm or ammunition in connection with another felony offense.” Under the “fortress theory,” a sufficient connection between the firearms and drugs is established if it reasonably appears that the firearms found … are to be used to protect the drugs or otherwise facilitate a drug transaction.” U.S. v. Ennenga, 263 F.3d 499 (6th Cir. 2001). Here, defendant was apprehended in an uninhabited apartment late at night with a bag of cocaine and a large amount of cash on his person. He testified that he was in the apartment to have his hair braided by a woman whom he had met “on the streets,” although the alleged hairstylist was not in the building. Finally, defendant was carrying a firearm. Based upon this set of facts, the Sixth Circuit ruled that the district court did not clearly err when it found that the government had proven by a preponderance of the evidence that § 2K2.1(b)(5) was satisfied. U.S. v. Clay, 346 F.3d 173 (6th Cir. 2003).
6th Circuit holds that defendant possessed guns in connection with VIN-flipping operation. (330) Defendant and his family were involved in “flipping” the VIN plates of wrecked cars for those of stolen cars. While investigating this operation, officers discovered numerous firearms and ammunition in defendant’s house, and he was convicted of being a felon in possession of a firearm. The Sixth Circuit affirmed a § 2K2.1(b)(5) enhancement for use of a firearm in connection with another felony offense, the VIN-flipping operation. Defendant was running the VIN-flipping operation from his auto shop, which was located just across the driveway from the house; three of the guns were found in the same metal cabinet that held detached VIN numbers and other VIN-flipping evidence; the metal cabinet was kept in the master bedroom, and people who have significant contraband tend to keep such things in their bedrooms; defendant’s VIN-flipping business appeared to have been his chief source of income during this time; some of the weapons were loaded, and one had been discharged; and one shotgun had been modified to make it more like an assault weapon. Because the guns and VIN paraphernalia were found in close proximity, the illegal operation could have been protected by the guns, and overall there was sufficient evidence for the court to reasonably conclude that the guns and the operation were connected. U.S. v. Burke, 345 F.3d 416 (6th Cir. 2003).
6th Circuit holds that assault was sufficiently distinct from felon in possession charge to constitute “another felony offense.” (330) Police witnessed defendant pointing a shotgun at the face and chest of another man. Defendant was convicted of being a felon in possession of a firearm. The district court applied a four-point increase under § 2K2.1(b)(5) because defendant used the firearm in connection with another felony offense, assault with a dangerous weapon, when he pointed the firearm at the victim’s chest and face. Defendant argued that the assault was not “another felony offense” because it occurred simultaneously with the offense of conviction. See U.S. v. Sanders, 162 F.3d 396 (6th Cir. 1998) (holding that burglary of firearm was not another felony offense). The Sixth Circuit found Sanders distinguishable. This case involved “a separation of time” and “a distinction of conduct” between the offense of conviction and the other felony offense. Defendant possessed the gun well before he used it to assault the other man. Moreover, beyond mere possession, he took the further step of committing a felonious assault with the firearm. Because of this distinction in conduct, it could not be said that defendant was convicted and had his sentence enhanced based upon the same conduct. The key distinction between this case and Sanders was that the conduct giving rise to the enhancement here was not inevitable upon completion of the underlying offense. U.S. v. King, 341 F.3d 503 (6th Cir. 2003).
6th Circuit holds that conspiracy to ship firearms was not “another felony” offense. (330) Defendant smuggled firearms and ammunition into the United States, hidden in auto parts being shipped into the country. He was convicted of a variety of firearms charges. The district court assessed a four-point increase under U.S.S.G. § 2K2.1(b)(5) based on his possession of a firearm in connection with another felony – the conspiracy to delivery to a common carrier for shipment a firearm without notice that such firearm was being shipped, in violation of 18 U.S.C. § 922(e). Note 18 to § 2K2.1(b)(5) provides that “another felony offense” refers to “offenses other than explosives or firearms possession or trafficking offense.” The Sixth Circuit rejected the enhancement, ruling that the conspiracy to ship or transport firearms was a “firearms trafficking offense” excluded from the enhancement in Note 18. The court erred in enhancing defendant’s sentence based on defendant’s conviction for conspiring to violate § 922(e). U.S. v. Boumelhem, 339 F.3d 414 (6th Cir. 2003).
6th Circuit rules destructive device in home was sufficiently connected to drug offense to support increase. (330) Police officers searching defendant’s mobile home discovered numerous items consistent with the manufacture of methamphetamine. While conducting their search, officials also came across a duffle bag in a bedroom closet. The duffel bag contain explosive material that, if initiated, would do severe damage or level the mobile home. Defendant was convicted of one count of possession of an unregistered destructive device and one count of manufacturing methamphetamine. Section 2K2.1 (b)(5) provides for a four-level enhancement if the defendant used or possessed any firearm (which includes a destructive device) “in connection with another felony offense.” The Sixth Circuit affirmed the application of the enhancement, holding that the court properly found a connection between the device and defendant’s conduct. Although the device might be capable of legitimate use, such as removal of tree stumps and similar tasks, there was no construction or stump removal taking place in the area surrounding the mobile home. Also, the device was found in the bedroom, where an inhaler contained meth residue and a handwritten documents describing an ephedrine extraction process were also found. Finally, the device was not required to be the best method of protecting defendant’s drug activity. One detective testified that devices similar to this one are generally used “both to injure another party or to injure the officers who may be coming into the location where the drugs may be or to booby trap the place.” U.S. v. Kolley, 330 F.3d 753 (6th Cir. 2003).
6th Circuit rejects double counting in firearms case. (330) While defendant was under state supervision, police discovered numerous firearms at his residence. His supervision was revoked and he was sentenced to a term of imprisonment. Based on his possession of these same firearms, defendant was also charged with and pled guilty to federal firearms charges. Defendant argued that the court improperly used the same conduct, his possession of firearms, first as the basis for sentencing him under § 2K2.1, second as an enhancement to his base offense level under § 2K2.1(a)(2), third as the basis for two criminal history points under § 4A1.1(d), and finally as the basis for three additional criminal history points under § 4A1.1(a). The Sixth Circuit found no double counting problem. While violations of § 922(g)(1) are sentenced under § 2K2.1, an enhancement under subsection 2K2.1(a)(2) focuses on defendant’s history of drug offenses, a different aspect of defendant’s conduct than gun possession. Similarly, § 4A1.1(d) focuses not on gun possession alone, but on the fact that defendant violated § 922(g)(1) while under another criminal justice sentence. Finally, the prior drug convictions for which defendant received criminal history points under § 4A1.1 obviously included conduct other than gun possession. Although some of these points were based on the same drug convictions as defendant’s enhancement under § 2K2.1(a)(2), the guidelines expressly provide that “[p]rior felony conviction(s) resulting in an increased base offense level under subsection … (a)(2) … are also counted for purposes of determining criminal history points….” See Note 15 to § 2K2.1. U.S. v. Wheeler, 330 F.3d 407 (6th Cir. 2003).
6th Circuit finds crime of violence where defendant did not object to PSR’s characterization of crime. (330) Defendant was convicted of firearms charges, and received an enhanced offense level under U.S.S.G. § 2K2.1 because the district court found that defendant’s 1997 conviction pursuant to Tennessee Code § 39-15-401 was a crime of violence. The Tennessee statute criminalizes both child abuse and child neglect. The statutory definition alone did not provide a sufficient basis for determining whether convictions under this statute “involves conduct that presents a serious potential risk of physical injury to another.” Although the elements for child abuse include injury to the child, the elements for child neglect do not. In describing defendant’s Tennessee conviction, the PSR stated that he “was originally charged with Aggravated Child Abuse.” Defendant did not object to this statement. Aggravated child abuse clearly involves a serious risk of potential injury to another. Therefore, the Sixth Circuit upheld the district court’s finding that defendant’s prior conviction was for a crime of violence, since that determination could be reached from the record without having to examine the detailed facts of his offense. U.S. v. Bass, 315 F.3d 561 (6th Cir. 2002).
6th Circuit finds defendant’s admission supported increase for using firearm in connection with another felony. (330) Defendant pled guilty to being a felon in possession of a firearm and for possessing an unregistered, sawed-off shotgun. The Sixth Circuit affirmed a four-level enhancement under U.S.S.G. § 2K2.1(b)(5) for using a firearm in connection with an aggravated assault. One police officer testified that defendant admitted shooting at two men who had allegedly robbed him earlier in the evening. This evidence was sufficient to support the increase. U.S. v. Bass, 315 F.3d 561 (6th Cir. 2002).
6th Circuit says defendant “knowingly” created substantial risk of death or injury. (330) Defendant was convicted of arson stemming from a fire at a commercial building he owned. The district court sentenced him under USSG § 2K1.4(a)(2)(A), which carries a base offense level of 20. The court rejected the government’s recommendation that defendant be sentenced under § 2K1.4(a)(1)(A), which mandates a higher base offense level for arsonists who “knowingly” create a substantial risk of death or bodily injury. The Sixth Circuit ruled that the application of the lower offense level under § 2K1.4(a)(2)(A) was clearly erroneous. Although the court referred to the risk to firefighters, it did not address the quickly and intensely burning rubber roof, the storage of flammable and explosive liquids, or the presence of nearby residences. Defendant knew of these aggravating factors. The court did not sufficiently distinguish between “knowingly” and “intentionally.” Defendant plainly intended to burn the building to collect insurance. He “knew” that burning the building would create a heightened risk to emergency personnel, was “aware” that the building had a rubber roof and sizable quantities of flammable liquids, and was “practically certain” the combination of these two factors would cause the fire to spread rapidly. He also knew the building was located in a commercial district, with at least one residence in close proximity across the street. U.S. v. Stevens, 303 F.3d 711 (6th Cir. 2002).
6th Circuit holds that purchase of additional firearm was relevant conduct. (330) Defendant and his cousin accompanied defendant’s girlfriend to a gun store where the girlfriend purchased firearms for both defendant and his cousin. Defendant, who was only 18 years old at the time, was not old enough to purchase a handgun himself. Defendant was convicted of one count of causing another person to make false statements to a licensed firearms dealer. The Sixth Circuit held that the district court properly determined that both handguns purchased by defendant’s girlfriend should be considered part of defendant’s relevant conduct. The purchase of both handguns was reasonably foreseeable. Defendant and his cousin jointly approached defendant’s girlfriend and traveled to the gun store on two occasions together with her. Both guns were purchased at the same time. U.S. v. Chavis, 296 F.3d 450 (6th Cir. 2002).
6th Circuit holds that consecutive sentence on firearm offense did not punish defendant twice for same crime. (330) Defendant pled guilty to three counts of armed bank robbery (one in Tennessee, one in Florida and one in Indiana), and use of a firearm during the Tennessee robbery, in violation of 18 U.S.C. § 924(c). Defendant received a § 2B3.1(b)(2) enhancement in his offense level for both the Florida and Indiana robberies for brandishing a firearm in these robberies. He did not receive an enhancement for the Tennessee robbery because he had pled guilty under § 924(c) to using a firearm during that robbery. The court imposed a 97-month sentence for the three robberies, plus a consecutive 60-month sentence for the § 924(c) offense. On appeal, defense counsel argued that the § 924(c) sentence could not run consecutively to the sentence for the Indiana and Florida robberies, since they included an increase for brandishing a weapon. The Sixth Circuit found no error, since the brandishing enhancement and a § 924(c) count are not cumulative punishment when assessed for separate offenses. In his reply brief, defendant also contended that his real objection was that he was being punished for using the same gun in both the brandishing and § 924(c) violation, and all of the robberies were part of the same course of conduct. The distinction did not change the analysis. There is no benefit to committing multiple crimes with the same weapon. U.S. v. Griffis, 282 F.3d 443 (6th Cir. 2002).
6th Circuit says HVAC units on wooden roof of building did not create “substantial risk of death or serious bodily injury.” (330) Guideline § 2K1.4(a)(1) (A) provides for an increased base offense level if an arson “created a substantial risk of death or serious bodily injury to any person other than a participant in the offense, and that risk was created knowingly….” In determining whether a fire created such a risk, the “risk to fire fighters and other emergency and law enforcement personnel who respond” to a fire can be considered. See Note 2 to § 2K1.4. However, “that risk must include something more than simply responding to the fire.” U.S. v. Robert Lee Johnson, 116 F.3d 163 (6th Cir. 1997). This case did not involve either the risk of a large explosion or the presence of any nearby residences. The court based the increase on the fact that (a) defendant used an accelerant, (2) the church he burned had an all-wood roof, and (3) two heavy HVAC units were on the roof of the church. The Sixth Circuit found this insufficient to support the finding that defendant “created a substantial risk of death or serious bodily injury” within the meaning of § 2K1.4(a)(1)(A). All of these factors are relatively commonplace, and the actual likelihood of a HVAC unit falling on a firefighter was extremely remote. These were professional firefighters who were presumably aware of the risks the HVAC units posed and took appropriate measures. Moreover, the units were small compared to the overall size of the building, making the likelihood of being injured from the falling unit quite small. U.S. v. Georgia, 279 F.3d 384 (6th Cir. 2002).
6th Circuit says stolen firearm enhancement was not double counting. (330) Defendant burglarized about 50-70 homes, in one instance taking a rifle which he then stored in his hotel room. Defendant pled guilty to possessing a stolen firearm, in violation of 18 U.S.C. § 922(j). He argued that a two-level stolen firearm enhancement under § 2K2.1(b)(4) was double counting, since he was convicted of possessing a stolen firearm. The Sixth Circuit found this double counting argument foreclosed by Note 12 to USSG § 2K2.1, which provides that if an offense level for a § 922(j) offense is determined under subsection (a)(7), the court should not apply the subsection (b)(4) enhancement unless the offense involved a firearm with an altered serial number. The court here determined defendant’s offense level under subsection (a)(4), not (a)(7). Because the language of the commentary required conviction under § 922(j) and a base offense determined under subsection (a)(4), the exception in Note 12 did not apply. U.S. v. Raleigh, 278 F.3d 563 (6th Cir. 2002).
6th Circuit says court made inadequate findings on foreseeability of theft of illegal weapons from gun store. (330) Defendant was the driver of the getaway car in the burglary and attempted burglary of two gun shops. One of the 51 stolen firearms was a semi-automatic assault weapon, which is illegal to possess or sell under 18 U.S.C. § 921(a)(30). Finding defendant’s offense involved an illegal weapon, the district court applied an enhanced offense level under § 2K2.1(a)(5). Defendant argued that because the target was a legitimate gun shop, it was not reasonably foreseeable that her co-conspirators would obtain an illegal weapon from the burglary. The Sixth Circuit ruled that the district court did not make sufficient findings on the issue of foreseeability. The question was whether it was reasonably foreseeable that defendant’s co-conspirator would have the opportunity to take a weapon from a store that the store could not legally sell. In the abstract, it is not reasonably foreseeable that a person burglarizing a gun store, which operates within a highly regulated industry, will be able to steal illegal merchandise. The court’s summary statement that “it was reasonably foreseeable that one of the weapons taken might well have been a prohibited weapon” was insufficient under Rule 32(c)(1). U.S. v. O’Malley, 265 F.3d 353 (6th Cir. 2001).
6th Circuit relies upon “fortress theory” to support increase for possessing guns in connection with drugs. (330) Police received a tip that in the basement apartment where defendant lived, he was growing marijuana, stockpiling weapons, and had set up bombs to protect his marijuana stash. In the furnace room of the basement, police found numerous marijuana plants and growing paraphernalia, but no weapons or explosive devices. However, they did find a electric alarm system. In addition, in a locker in the hallway of the basement, police discovered a large number of firearms. Only defendant possessed the key to the locker. Finally, in defendant’s bedroom, agents discovered a small amount of marijuana, ammunition, and paperwork for a handgun laser sight. The Sixth Circuit relied on the “fortress theory” to affirm a § 2K2.1(b)(5) increase for possessing a firearm in connection with another felony offense. This theory says that a sufficient connection between guns and drugs is established “if it reasonably appears that the firearms found on the premises … are to be used to protect the drugs or otherwise facilitate a drug transaction.” First, although no guns were found in the bedroom or furnace room where the marijuana was found, authorities did discover “high-powered ammunition” in defendant’s bedroom. More importantly, the alarm system supported the conclusion that defendant was “holed up” in the basement “fortress.” U.S. v. Ennenga, 263 F.3d 499 (6th Cir. 2001).
6th Circuit rejects collection purposes reduction for defendant who bartered cars for guns and then resold guns for profit. (330) Defendant, a convicted felon, regularly bartered cars for guns and later sold the guns for profit. During a three-month period, he possessed 13 firearms, and sold six of those firearms to pawn shops. None of the firearms he sold or possessed were antiques or of any special value. Nonetheless, he contended that he qualified for a § 2K2.1(b)(2) reduction because he possessed the firearms “solely for lawful sporting purposes or collection.” The Sixth Circuit disagreed. Defendant did not collect the firearms solely for the purpose of amassing a gun collection, but for the competing purpose of converting used automobiles into currency by using firearms as bartering tools. It did not matter that defendant intended to sell the firearms for the innocent purposes of financing a move out of state and paying for his mother’s prescription drugs. U.S. v. Clingan, 254 F.3d 624 (6th Cir. 2001).
6th Circuit holds that cross-reference does not to have specific intent requirement. (330) Defendant smuggled a gun to her boyfriend while he was in jail with the belief that the gun would be used to kill the person who had raped defendant’s mother. Instead, the boyfriend used the gun to shoot and kill a deputy when the deputy attempted to prevent the boyfriend from escaping from custody. Defendant was convicted of disposing of a firearm to a convicted felon. Section 2K2.1(c)(1) provides, in part, that if the defendant possessed the weapon with the knowledge or intent that it would be used in connection with “another felony,” and if death resulted, then the court should apply the most analogous homicide guideline. The district court used this cross-reference to sentence defendant to 120 months, the statutory maximum for her conviction. Defendant argued that this cross-reference was inapplicable because she did not have the “knowledge or intent” that the deputy would be killed, and that her knowledge or intent to kill the rapist could not be transferred to the deputy. The Sixth Circuit held that the cross-reference does not have a specific intent requirement, and that defendant’s knowledge or intent that the gun would be used to kill the rapist was sufficient to trigger the cross-reference. Defendant knew that the gun was to be used in connection with “another felony,” and death resulted from the use of the gun. Thus, her conduct precisely fit the language of § 2K2.1 (c)(1)(B). U.S. v. Cobb, 250 F.3d 346 (6th Cir. 2001).
6th Circuit holds that gun found in same room as drugs was possessed “in connection with” another felony. (330) The government argued that the fact that defendant had pled guilty to both possession with intent to distribute cocaine, and to being a felon in possession of a handgun, occurring on the same date, in the same room, and at the same time, was sufficient to establish that he had used the gun “in connection with” a felony, for purposes of a § 2K2.1(b)(5) enhancement. Defendant contended that in order to prove that he used the gun “in connection with” a drug offense, the government must present additional evidence, such as that he had both the gun and the cocaine on his person, or that he was holding the gun while selling the cocaine, or that he confessed that he was using the gun to protect the cocaine. The Sixth Circuit found that the term “in connection with” did not require such additional evidence. Although the district court erroneously relied on a case involving a § 2D1.1(b)(1) firearm enhancement, the evidence was still sufficient to support the increase. Section 2K2.1(b)(5) does not require that a defendant have used the gun; it is enough that a defendant possessed the gun in connection with any felony. Possession can be actual or constructive. Defendant admitted that he was in constructive possession of the gun when he pled guilty to being a felon in possession of a firearm. As a result, he could not now claim that the court erred in applying § 2K2.1(b)(5). U.S. v. Hardin, 248 F.3d 489 (6th Cir. 2001).
6th Circuit affirms increase for knowledge that pipe bomb would be used in another felony. (330) Case contacted defendant to obtain some materials to make a bomb to harm his enemy Legg. The two agreed that Case would stop by defendant’s house again, but Case never returned because he checked himself into a drug rehabilitation program. Case’s mother testified that defendant came to her house and told her that he had made a bomb for Case. Case’s brother testified that he did not want Case to use the bomb, so he went to defendant’s house to get it. The brother testified that defendant told him that he had made the bomb specifically for Case so that he might retaliate against Legg, and that defendant knew Case would actually use the bomb. The brother stored the bomb at his house for a few weeks before trying to sell it to an undercover agent. The Sixth Circuit affirmed a § 2K2.1(b)(5) enhancement for possessing the bomb with the knowledge that it would be used “in connection with another felony offense.” There was no evidence that defendant knew that Case had abandoned his plan to harm Legg, given he came to the mother’s house stating that had he had a pipe bomb for Case. U.S. v. Mise, 240 F.3d 527 (6th Cir. 2001).
6th Circuit rules court improperly treated use of short-barreled gun as sentencing factor rather than element. (330) Under 18 U.S.C. § 924(c), if a defendant uses or carries a firearm, the punishment is increased by five years. The district court found by a preponderance of the evidence that defendant used a short-barreled shotgun in the robbery, which triggered a ten-year mandatory minimum sentence under § 924(c)(1) (B)(i). The Sixth Circuit held that this violated Castillo v. U.S., 530 U.S. 120 (2000), which held that the particular type of weapon involved in a § 924(c) offense is an element of the crime that must be proven beyond a reasonable doubt before the trier of fact. The district court improperly treated the use of the short-barreled shotgun as a sentencing factor rather than an element of the offense. U.S. v. Bandy, 239 F.3d 802 (6th Cir. 2001).
6th Circuit upholds reliance on co-defendant’s testimony to support increase for number of firearms. (330) Quinones testified at sentencing that he and defendant began to commit burglaries together in September 1996, that they typically committed burglaries three to four days per week, burglarizing two to three homes per day, and stealing on average, three guns per house. He estimated that they had stolen more than 50 guns during a six-month period. The district court applied a six-level enhancement under § 2K2.1(b) (1) based on the involvement of more than 50 firearms. Defendant contended that Quinones’ testimony was uncorroborated and not credible. The Sixth Circuit affirmed the increase, since defendant did not demonstrate that the district court clearly erred in its assessment of Quinones’ credibility. U.S. v. Hurst, 228 F.3d 751 (6th Cir. 2000).
6th Circuit applies “another felony” increase where defendant burglarized house with gun stolen in earlier burglary. (330) Based on testimony that during one burglary defendant carried a handgun he had stolen in an earlier burglary, the district court applied a § 2K2.1(b)(5) increase for possessing a firearm in connection with another felony offense. Citing U.S. v. Sanders, 162 F.3d 396 (6th Cir. 1998), defendant argued that his theft of the gun in one burglary and his possession of it during a second burglary later the same day were part of the same course of conduct and should not be treated as separate offenses under § 2K2.1(b)(5). Sanders rejected the § 2K2.1(b)(5) increase for a defendant who burglarized a pawn shop, placed the stolen firearms in his car, and shortly thereafter was stopped for a traffic violation. The Sixth Circuit found Sanders distinguishable. Here, there was indisputably a separation of time, albeit indeterminate in length, between the completion of the first burglary and the commission of the second. There was also a distinction of conduct. Although both burglaries were committed on the same day and defendant’s modus operandi was the same, each burglary resulted in the invasion of distinct homes in different counties, in the theft of different personal property, and in injury to different victims. The enhancement was clearly proper here. Defendant used a stolen firearm in the commission of a separate and distinct burglary. U.S. v. Hurst, 228 F.3d 751 (6th Cir. 2000).
6th Circuit applies stolen firearm enhancement even though gun had not been stolen before defendant acquired it. (330) Defendant and an accomplice committed a burglary. Police stopped their vehicle after the burglary and found various stolen items, including several firearms. Citing U.S. v. Rowlett, 23 F.3d 300 (10th Cir. 1994), he argued that a § 2K2.1(b)(4) stolen firearm increase applies only if the firearms he possessed were stolen before he possessed them. The Sixth Circuit held that under the 1995 amendment to Application Note 12 to § 2K2.1, promulgated after Rowlett, the stolen firearm enhancement may apply even though the gun had not been stolen before the defendant acquired it. The amended version of Note 12 makes it clear that the § 2K2.1(b)(4) enhancement applies to all firearms offenses except certain listed offenses (involving stolen firearms) where the base offense level is determined under § 2K2.1(a)(7). Defendant was convicted of a firearms violation that was not a listed offense (being a felon in possession of a firearm) and his base offense level was determined under § 2K2.1(a)(4), not (a)(7). Therefore, the Note 12 exception to the § 2K2.1(b)(4) firearm enhancement did not apply to defendant. The fact that the gun defendant possessed had not been stolen before he acquired it did not defeat the fact that he acquired it by theft and then possessed a stolen firearm. U.S. v. Hurst, 228 F.3d 751 (6th Cir. 2000).
6th Circuit says note limits actual sentence imposed through departure. (330) Because defendant received a mandatory consecutive 60-month sentence for his § 924(c) conviction, Application Note 2 to § 2K2.4 barred the court from applying to his robbery offense level any specific offense characteristics for the use of a weapon. The note provides that when the combined sentences for the underlying offense and the § 924(c) conviction results in a maximum penalty that is less than the maximum that would have resulted had there not been a § 924(c) conviction, an upward departure may be warranted. The departure “shall not exceed the maximum of the guideline range that would have resulted had there not been a count of conviction” under § 924(c). Defendant’s combined sentencing range for both offenses was 157 to 181 months. If defendant had not been convicted under § 924(c), he would have had a sentencing range of 168-210 months. Following Note 2, the court departed upward by two levels, which, when combined with his 60-month sentence for his § 924(c) conviction, placed defendant in a range of 181-211 months. Because this range extended one month higher than the maximum allowed by Note 2, defendant argued that the court could depart upward by only one level. The Sixth Circuit refused to interpret the note as barring a departure to a level that include any months over the maximum permissible range; a better interpretation is that the actual sentence given cannot exceed the maximum range. Since defendant’s actual sentence did not exceed the maximum range, the extent of the departure was proper. U.S. v. Collins, 226 F.3d 457 (6th Cir. 2000).
6th Circuit rejects equal protection challenge to assault weapon enhancement. (330) Defendant illegally possessed a firearm while subject to a domestic violence protection order, in violation of 18 U.S.C. § 922(g)(8). Section 2K2.1(a)(4)(B) provides for an offense level increase if the defendant possessed the type of gun described in 18 U.S.C. § 921(a)(30). The SKS assault rifle defendant possessed fell within this description. The Sixth Circuit held that the assault weapon enhancement did not violate the equal protection clause. Because the challenged provision did not affect a fundamental right or a suspect class, the provision only needed to have a rational relationship to a legitimate government interest. Congress’s decision to deal more harshly with offenders who possess assault weapons rather than ordinary guns has a rational relationship to the government’s interest in reducing domestic violence. Individuals with a history of domestic violence may pose a greater threat to their intimate partners and children when armed with an assault rifle as opposed to a firearm less capable of immediate destruction. U.S. v. Baker, 197 F.3d 211 (6th Cir. 1999).
6th Circuit upholds departure where aggravating factors not considered in guideline actually used. (330) Defendant pled guilty to assaulting a federal officer and numerous firearms charges. The district court departed upward based on: (1) defendant’s discharge of a weapon (§ 5K2.5); (2) his intent to conceal a second felony (§ 5K2.9); and (3) his infliction of serious bodily injury (§ 5K2.2). Defendant argued that these grounds were previously considered under § 2K2.1(c) through a cross-reference to § 2A2.2, the aggravated assault guideline. The Sixth Circuit found no double counting because even though those characteristics were considered in the cross-referenced guideline, they never impacted the offense level of the guideline section actually used by the district court. Following the cross-reference in § 2K2.1(c), the court considered the aggravated assault guideline, which contains specific offense characteristics for serious bodily injury and discharge of a firearm. However, the court ultimately applied § 2K2.1, rather than § 2A2.2, because § 2K2.1 provided for a higher offense level. U.S. v. Smith, 196 F.3d 676 (6th Cir. 1999).
6th Circuit says increase for use of gun in another felony was double counting. (330) After shooting a policeman, defendant pled guilty to carrying a firearm during a crime of violence, 18 U.S.C. § 924(c), being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1), and several related counts. The district court applied a § 2K2.1(b)(5) enhancement for using the weapon in connection with another felony. Note 2 to § 2K2.4, which applied to the § 924(c) conviction, says that “[w]here a sentence under this section is imposed with a sentence for any underlying offense, any specific offense characteristic for possession, use, or discharge of an explosive or firearm … is not to be applied.” Relying on U.S. v. Vincent, 20 F.3d 241 (6th Cir. 1994), the Sixth Circuit held that the § 922(g) felon in possession conviction was an “underlying offense” of the § 924(c) conviction, and thus, the subsection (b)(5) enhancement was double counting. “Simply put, the 4-point enhancement is premised on the same conduct as the mandatory five-year sentence under § 924(c).” U.S. v. Earvin, 29 F.Supp. 962 (E.D. Wis. 1998). However, a § 2K2.1(b)(4) enhancement for an obliterated serial number was not double counting. The fact that a gun has an obliterated serial number is entirely separate from the defendant’s use or possession of the gun. U.S. v. Smith, 196 F.3d 676 (6th Cir. 1999).
6th Circuit says aider and abettor’s offense level should be based on own criminal record. (330) Defendant pled guilty to aiding and abetting a felon in possession of a firearm. Section 2X2.1 says that the offense level for a defendant who is convicted of aiding and abetting “is the same level as that for the underlying offense.” The applicable firearm guideline, § 2K2.1, provides for an increased base offense level of 24 if the defendant has been convicted of two or more prior felonies. The district court held that a defendant convicted of aiding and abetting should be given the same base offense level as the principal offender. Because the principal had received an offense level of 24, the district court gave defendant an offense level of 24. The Sixth Circuit reversed, holding that the offense level of an aider and abettor should be calculated using that individual’s criminal record rather than the criminal record of the principal offender. Section 2X2.1 says that the defendant’s offense level is the same “as that for the underlying offense.” The guideline does not say that the defendant’s offense level is the same level as that of the principal offender. Treating an aider and abettor as a principal means only that the defendant is treated as if she or he actually committed the underlying offense. U.S. v. Hendrick, 177 F.3d 547 (6th Cir. 1999).
6th Circuit says firearms stolen during burglary not possessed “in connection with another offense.” (330) Defendant broke into a pawn shop, unarmed, and stole jewelry, money, and 74 guns. He pled guilty to theft from a federally licensed firearm dealer and being a felon in possession of a firearm. Defendant challenged a § 2K2.1(b)(5) enhancement for possessing a firearm “in connection with another felony offense.” The Sixth Circuit reversed based on U.S. v. Sanders, 162 F.3d 396 (6th Cir.1998), which requires a separation of time between the offense of conviction and the other felony offense, or a distinction of conduct between that occurring in the offense of conviction and the other felony offense. Like Sanders, defendant entered a pawn shop unarmed, stole firearms along with other items, and was captured shortly thereafter prior to committing any further crime. There was no lapse of time or a distinction of conduct between the theft and the possession of the firearms. Judge Wellford concurred, believing Sanders was binding but wrongly decided. U.S. v. McDonald, 165 F.3d 1032 (6th Cir. 1999), abrogated on other grounds, U.S. v. Jackson-Randolph, 282 F.3d 369 (6th Cir. 2002).
6th Circuit reviews de novo application of firearm enhancement to undisputed facts. (330) Defendant broke into a pawn shop, unarmed, and stole jewelry, money, and 74 guns. He pled guilty to theft from a federally licensed firearm dealer and being a felon in possession of a firearm. Defendant challenged a § 2K2.1(b)(5) enhancement for possessing a firearm in connection with another felony offense. The Sixth Circuit reviewed the issue de novo, since the facts of the case were not in dispute. The only issue on appeal was whether the facts of the case warranted application of § 2K2.1(b)(5). U.S. v. McDonald, 165 F.3d 1032 (6th Cir. 1999), abrogated on other grounds, U.S. v. Jackson-Randolph, 282 F.3d 369 (6th Cir. 2002).
6th Circuit says burglary of firearms not “another felony offense.” (330) Defendant and several associates burglarized a pawn shop, taking firearms and electronics. Defendant placed some of the stolen goods in his car and drove to another state. He pled guilty to transporting stolen firearms and being a felon in possession of a firearm. The district court applied a § 2K2.1(b)(5) enhancement for possessing the firearms in connection with another felony—the burglary of the pawn shop. The Sixth Circuit, disagreeing with U.S. v. Armstead, 114 F.3d 504 (5th Cir. 1997), rejected the enhancement. The term “another felony offense” in § 2K2.1(b)(5) requires a separation of time between the offense of conviction and the other felony offense, or a distinction between the conduct occurring in the offense of conviction and the conduct occurring in the other felony offense. Defendant’s burglary had already been taken into account in his sentencing guideline calculations. Note 18 to § 2K2.1 says that “another felony offense” refers to offenses other than the firearms possession offense. The mere fact that defendant could also have been prosecuted for a state burglary at the time he committed the charged offense did not make it “another felony offense.” U.S. v. Sanders, 162 F.3d 396 (6th Cir. 1998).
6th Circuit bases specific offense characteristic on defendant’s knowledge when he obstructed justice. (330) Defendant participated in a conspiracy to obstruct the prosecution of a convicted felon who was on trial for possession of 33 firearms. The conspiracy required different individuals to claim ownership of the guns actually owned and possessed by the felon. Under § 2X3.1, the accessory after the fact guideline, the offense level is based on the offense level for the underlying offense. Defendant’s friend was convicted of being a felon in possession of firearms, and received a five-level enhancement under § 2K2.1(b)(1)(E) for possessing 33 firearms. The district court refused to apply this enhancement to defendant because he did not know about the number of weapons at the time they were seized by the government. The Sixth Circuit held that in determining whether to apply the specific offense characteristic relating to the number of weapons, a court should look to defendant’s knowledge at the time he obstructed justice. A defendant’s sentence should be based on the specific crime he knew he was concealing. U.S. v. Miller, 161 F.3d 977 (6th Cir. 1998).
6th Circuit affirms stolen firearm enhancement. (330) Defendant was convicted of drug and firearms charges. The district court applied a § 2K2.1(b)(4) enhancement for possessing a stolen gun. Defendant argued that the court erred in making a “sua sponte upward departure.” The Sixth Circuit held that the enhancement was not a departure. The district court simply calculated defendant’s sentence under the guidelines. The court’s finding that the gun was stolen was based on an uncontested and corroborated excerpt of the PSR. U.S. v. Jones, 159 F.3d 969 (6th Cir. 1998).
6th Circuit holds that risk to firemen did not support use of higher offense level. (330) Defendant drove a car up against a church and set the car on fire. He spread motor oil in the car to enhance the fire and spread the fire to the church. The district court sentenced defendant under § 2K1.4(a)(1), which carries a higher base offense level for knowingly created a substantial risk of injury to fire fighters and to the nearby parsonage. The Sixth Circuit held that the risk of injury to firemen was no greater than in other fires and thus did not merit the higher offense level. The arsonist must know that a specific fire for some reason poses a substantial risk of death or serious bodily injury to fire fighters. Here, the wind velocity was minimal, the accelerant was used only in the car and not the church, and the church was of brick construction. However, the fact that the parsonage was only 50 feet from the church and was occupied, did support the increased offense level. The likelihood that a fire might spread to a nearby dwelling was the kind of clearly foreseeable circumstance that supported finding that a defendant knowingly created a risk of death or serious bodily injury to another. U.S. v. Johnson, 152 F.3d 533 (6th Cir. 1998).
6th Circuit says court properly counted all firearms where defendant was prohibited person. (330) Defendant pled guilty to unlawful possession of a machine gun after police found six guns at his house. His sentence was increased under § 2K2.1(b)(12)(B) for possessing between five to seven firearms. Defendant argued for the first time on appeal that the enhancement was plain error because three of the guns were legally possessed. The Sixth Circuit held that defendant was precluded from raising this issue for the first time on appeal. Moreover, even if defendant had timely objected, the enhancement was warranted. Defendant was a “prohibited person” because he illegally used controlled substances at the time of his offense. Section 922(g)(3) bars drug users and addicts from possessing any firearms. U.S. v. Jarman, 144 F.3d 912 (6th Cir. 1998).
6th Circuit says arson created substantial risk of death or serious bodily injury. (330) Defendant and others were hired to burn a restaurant so that the owner could collect insurance proceeds. They arranged to destroy the building with a natural gas explosion because the building was made of brick, steel and concrete, which would not otherwise burn. The explosion occurred at 4 a.m., when no one was present in the building. The Sixth Circuit affirmed an enhanced offense level under § 2K1.4(a)(1) for “knowingly” creating a substantial risk of death or serious bodily injury to any person other than a participant in the offense. Although defendant may not have specifically attempted to put someone in harm’s way, he definitely knew the risks involved. He knew it would take a large explosion to blow up a building made of steel, concrete, and brick, knew the building was located next to a gas station, and knew that firefighters would be in danger when they had to enter the unstable building. U.S. v. Latouf, 132 F.3d 320 (6th Cir. 1997).
6th Circuit holds § 2K2.1(b)(5) enhancement was not affected by Bailey’s “use” requirement. (330) Defendant pled guilty to being a felon in possession of a firearm. The district court applied § 2K2.1(b)(5) after determining defendant possessed the weapon in connection with another felony. Defendant argued that after the Supreme Court’s decision in Bailey v. United States, 116 S.Ct. 501 (1995), the mere fact that a gun was possessed by a person who has committed another felony was insufficient to satisfy § 2K2.1(b)(5). The Sixth Circuit held that § 2K2.1(b)(5)’s enhancement was not affected by Bailey. Bailey only addressed the meaning of the term “use” in 18 U.S.C. § 924(c), not the term “possessed” in § 2K2.1(b)(5). Bailey simply holds that “use” for purposes of § 924(c) requires more than mere possession. But for purposes of § 2K2.1(b)(5), “possession” is sufficient. U.S. v. Covert, 117 F.3d 940 (6th Cir. 1997).
6th Circuit applies increase for setting 3 fires, despite minimal damage. (330) Defendant and some friends burned a cross in front of a black-owned tavern and threw beer bottles containing kerosene inside. The kerosene failed to ignite so the damage was minimal. They then burned a cross in front of a church, and attempted to burn the church. Although a fire developed, a volunteer fireman happened to be in the area and got the fire under control. The damage to the church was estimated at $12,312. Finally, the arsonists went to another predominantly black church, burned a cross in front, and then threw a bottle containing kerosene into the building. Luckily, the heat from the resulting fire caused a water pipe to burst, which put out the blaze. Damage to the building was estimated at only $7,750. The Sixth Circuit affirmed an enhancement under § 2K1.4(a)(1) for knowingly creating a substantial risk of death or serious bodily injury. Although the damage caused by the three fires was relatively minor, the risk was high. Defendant used an accelerant, and set the fires within a short span of time, in areas served by a volunteer fire department. When resources are stretched by multiple fires, the risk of serious bodily injury increases. U.S. v. Johnson, 116 F.3d 163 (6th Cir. 1997).
6th Circuit remands for § 2D1.1(b)(1) increase after vacating § 924(c) conviction. (330) Defendant was originally convicted of drug and firearms charges. The Sixth Circuit vacated the § 924(c) conviction in light of Bailey v. U.S., 116 S.Ct. 501 (1995). It also remanded for the district court to consider whether to impose a § 2D1.1(b)(1) enhancement for the drug sentence, even though the government did not cross-appeal the drug sentence. An appellate court has jurisdiction to vacate an entire sentencing package, even when certain portions of the sentence have not been challenged. The sentences here were interdependent. If defendant had not been convicted under § 924(c), the district court would have had discretion to enhance defendant’s sentence for firearm possession under § 2D1.1(b)(1). U.S. v. Milledge, 109 F.3d 312 (6th Cir. 1997).
6th Circuit only counts convictions that occur before the instant firearm offense. (330) Police stopped defendant for a traffic violation and observed a sawed‑off shotgun in the back seat of his car. He pled guilty to being a felon in possession of a firearm. Five months later, he committed a state drug offense. He was sentenced on the state drug charge before being sentenced on the instant firearm offense. Section 2K2.1(a)(1) provides for an increased offense level if the offense involved certain types of guns and the defendant “had at least two prior felony convictions of either a crime of violence or a controlled substance offense.” The Sixth Circuit held that for purposes of § 2K2.1(a)(1) and (a)(3), only those convictions that occur before the instant firearm offense may be counted. The most natural reading of the guideline is that the number of prior convictions must be determined as of the date of the federal firearm offense, not the date of sentencing. Defendant’s drug conviction, which was based on conduct after his firearm offense, was not within this rule. U.S. v. Barton, 100 F.3d 43 (6th Cir. 1996).
6th Circuit says serial number obliteration must be relevant conduct to justify increase. (330) Undercover ATF agents purchased two guns carrying obliterated serial numbers. When the serial numbers were restored, the guns were traced back to defendant, a licensed firearms dealer. Defendant was later arresting during another undercover operation for unlawfully selling firearms away from his business. At sentencing, although the government could not establish defendant’s involvement in removing the serial numbers from the two firearms, the district court imposed a § 2K2.1(b)(4) enhancement for the obliterated serial numbers. The Sixth Circuit remanded, ruling that the § 2K2.1(b)(4) enhancement should not be imposed by way of strict liability. The relevant conduct guideline, § 1B1.3, could not be applied because the district court did not find that the obliteration occurred during or in preparation for the commission of the offense of conviction, or in furtherance of any jointly undertaken criminal activity. U.S. v. Roxborough, 99 F.3d 212 (6th Cir. 1996).
6th Circuit upholds lack of mens rea requirement for stolen firearm enhancement. (330) Defendant pled guilty to being a felon in possession of a firearm. He challenged a § 2K2.1(b)(4) enhancement for possessing a stolen firearm on the ground that he had no knowledge that the gun was stolen. The Sixth Circuit reaffirmed that the stolen firearm enhancement in § 2K2.1(b)(4) has no mens rea requirement. The lack of a mens rea requirement does not violate due process. The case relied on by defendant, U.S. v. Staples, 114 S.Ct. 1793 (1994), narrowly deals with conviction for a firearm offense carrying a severe penalty. Staples does not include sentencing enhancements within its scope. U.S. v. Murphy, 96 F.3d 846 (6th Cir. 1996).
6th Circuit remands for gun enhancement after § 924(c) conviction reversed. (330) After defendant’s drug and firearms convictions and sentence were affirmed on appeal, he moved for reconsideration in light of Bailey v. U.S., 516 U.S. 137 (1995). The government conceded that under Bailey, defendant’s conviction under 18 U.S.C. § 924(c) was improper, but asked the court to remand to permit the district court to consider imposing a § 2D1.1(b)(1) enhancement. Defendant argued that the court lacked authority to remand for resentencing because his conviction and sentence had been affirmed on appeal. The Sixth Circuit held it had authority under 28 U.S.C. § 2106 to vacate defendant’s sentence and remand for resentencing to consider the enhancement. Defendant’s sentences for his multiple convictions were interdependent, because the § 924(c) conviction barred the § 2D1.1(b)(1) enhancement. Where several sentences are interdependent, a court has the authority under § 2106 to vacate all of the sentences even if only one is reversed on appeal. U.S. v. Clements, 86 F.3d 599 (6th Cir. 1996).
6th Circuit holds that § 2B1.1 is most analogous guideline for firearm theft. (330) Defendants pled guilty to stealing a firearm from a licensed firearm dealer, in violation of 18 U.S.C. § 922(u). Defendants argued that the most analogous guideline was § 2B1.1 (Larceny and Other Forms of Theft) rather than § 2K2.1 (Unlawful Receipt, Possession or Transportation of Firearms). Notwithstanding a proposed amendment that would make § 2K2.1 applicable to defendant’s offense, the Sixth Circuit ruled that § 2B1.1 was the most analogous guideline. Section 2K2.1 is not directly applicable to the offense here. The crime of theft is not among the crimes to which § 2K2.1, by its terms, applies. Section 2B1.1, however, specifically applies to larceny and other forms of theft. The fact that a guideline amendment effective November 1, 1995 makes § 2K2.1 the applicable guideline does not change this result. The amendment does not necessarily give anecdotal support for the proposition that § 2K2.1 was the appropriate guideline to apply. It provides at least as much support for the proposition that the offense guideline currently applicable to the theft of firearms is § 2B1.1. Judge Ryan dissented. U.S. v. Halliburton, 73 F.3d 110 (6th Cir. 1996).
6th Circuit upholds consecutive sentence for § 924(c)(1) violation. (330) Defendant argued that the district court erred in making her sentence for carrying a firearm during a crime of violence consecutive to her other convictions. The Sixth Circuit found the claim “manifestly meritless,” since 18 U.S.C. § 924(c)(1) expressly mandates that the district court impose a five year sentence consecutive to any other term of imprisonment notwithstanding any other provision of law. U.S. v. Lowery, 60 F.3d 1199 (6th Cir. 1995).
6th Circuit bars reviewing underlying facts in determining crime of violence. (330) Section 2K2.1(b)(2) provides for a lower offense level for certain firearms offenses if the defendant was in possession of firearm solely for lawful sporting purposes. The reduction is not available to defendants with prior convictions for crimes of violence. The district court, after examining the factual information in defendant’s PSR, found that defendant’s prior conviction for assault with intent to commit sexual battery constituted a crime of violence under § 4B1.2(1)(i). The Sixth Circuit reversed, holding that the district court improperly considered the facts reported in defendant’s PSR. In determining whether an offense is a crime of violence under § 4B1.2(1)(i), the district court’s review is limited to the statutory elements of the offense. Force was not an essential element of defendant’s offense. However, defendant’s offense might qualify as a crime of violence under § 4B1.2(1)(ii) as an offense that presents a serious potential risk of physical injury to another. In making this determination, the district court may only consider conduct set forth in the count of which the defendant was convicted. On remand, the district court may consider the indictment to determine whether the offense presented a serious potential risk of physical injury to another. The court must limit its examination to those charges essential to the offense of conviction. U.S. v. Arnold, 58 F.3d 1117 (6th Cir. 1995).
6th Circuit says aggregation of factors did not justify downward departure. (330) Police found a sawed-off shotgun under defendant’s bed. The district court departed downward based on a combination of factors: (a) defendant did not actively seek the weapon, but purchased it from one of his bar patrons, (b) he was not the one who altered the weapon, (c) he did not use it to commit an offense, and (d) the weapon was only discovered because defendant’s girlfriend turned him in after a domestic dispute. Assuming without deciding that a totality of the circumstances approach to departures is proper, the 6th Circuit rejected the departure here because the guidelines contemplated all of the factors the district court considered. First, defendant’s illegal possession continued for 15 years. Second, both the guidelines and the statute recognize that possession of a sawed-off shotgun is distinct from the offense of altering a weapon. Third, § 2K2.1(b)(5) of the guidelines takes into account the fact that some illegal weapons are merely possessed, while others are used for illegal purposes, by providing for a four-level enhancement where the weapon is used for illegal purposes. Finally, § 5G1.3 instructs the court how to proceed when sentencing a defendant already serving a sentence for a related offense. U.S. v. Dalecke, 29 F.3d 1044 (6th Cir. 1994).
6th Circuit upholds murder cross reference to even though court failed to find malice. (330) Defendant and a friend sold chalk, instead of cocaine, to two men. When the men discovered the fraud, they pulled their car alongside defendant’s car. Defendant and his friend both fired shots into the window of the car, killing one of the men. Defendant was convicted of being a felon in possession of a firearm. Relying on the cross reference in § 2K2.1(c)(1), the judge sentenced defendant under the second degree murder guideline. The 6th Circuit upheld the cross reference, even though the district court did not specifically find that defendant acted with malice. The appellate court’s de novo review of the record showed that defendant acted with malice aforethought. Unprovoked, he fired at least two shots into the victim’s car. Defendant’s gross deviation from a reasonable standard of care established the requisite malice to hold him accountable for second degree murder. U.S. v. Milton, 27 F.3d 203 (6th Cir. 1994).
6th Circuit extends relevant conduct principles from drug cases to firearms cases. (330) Defendant was convicted of dealing in firearms without a license and possessing a sawed-off rifle. The district court calculated his offense level at 18 under § 2K2.1(a)(5) for the sawed-off rifle, rather than level 12 under § 2K2.1(a)(7). Defendant argued that this was improper because only firearms for sale should be considered as relevant conduct, and the sawed-off rifle was not intended to be sold. The 6th Circuit, applying the relevant conduct principles from drug cases, affirmed. There is no pertinent distinction between possession of illegal drugs and possession of firearms for purposes of applying the guidelines. The same rationale which supports including drugs found on the premises where drug transactions have occurred as relevant conduct supports inclusion of firearms that a defendant possesses, as relevant conduct to the crime of dealing in firearms. Judge Jones dissented, believing the majority was taking “an ill-advised step” in extending the principles of relevant conduct. U.S. v. Partington, 21 F.3d 714 (6th Cir. 1994).
6th Circuit says enhancing firearms offense with firearms enhancement was improper double counting (330) Defendant was convicted of carrying a firearm in connection with a drug trafficking crime, and possession of a firearm by an unlawful user of a controlled substance. A background note to § 2K2.4 provides that when a sentence for violating 18 U.S.C. § 844(h), § 924(c) or § 929(a) is imposed in conjunction with a sentence for an underlying offense, any specific offense characteristic for firearm discharge, use or possession is not applied. The 6th Circuit held that defendant’s conviction for possession of a firearm by an unlawful user of a controlled substance was an underlying offense to the carrying of a firearm during a drug trafficking crime. Therefore, increasing defendant’s base offense level under § 2K2.1(b)(1) and § 2K2.1(b)(5) was impermissible double counting. U.S. v. Vincent, 20 F.3d 229 (6th Cir. 1994).
6th Circuit rejects use of perjury guideline for false statement offense. (330) Defendant made false statements about his finances on a financial affidavit filed with the court, and was convicted of making a false statement to a court. The 6th Circuit held that the district court improperly applied the perjury guideline, § 2J1.3, instead of the fraud and deceit guideline, § 2F1.1, to establish defendant’s base offense level. Under the Statutory Index, the guideline applicable to a false statement offense is § 2F1.1. The commentary to § 2F1.1 provides that other guideline sections may be applied where they more aptly cover the offense. Here, the circuit’s financial affidavit form did not state that the information was submitted under oath or penalty of perjury. Although titled an affidavit, it was not really an affidavit since it was not “sworn to or affirmed before some person legally authorized to administer an oath or affirmation.” Thus, defendant did not commit perjury by filing the form and his conduct was not more aptly covered by the perjury guideline. U.S. v. Duranseau, 19 F.3d 1117 (6th Cir. 1994).
6th Circuit says court must consider unserved sentence in sentencing felon in possession. (330) Defendant was convicted of being a felon in possession of a firearm after shooting a woman in the head. Because he used the firearm to commit an aggravated assault, under section 2K2.1(c)(1) and section 2X1.1, defendant was sentenced under the aggravated assault guideline, which carries a higher offense level. The 6th Circuit held because defendant was currently serving a state sentence for the aggravated assault, and the aggravated assault was used to enhance defendant’s federal weapons sentence, the district court should have applied 5G1.3. That section provides that in such a situation, the sentence for the instant offense shall be imposed to result in a combined sentence equal to the total punishment that would have been imposed under section 5G1.2 had both sentences been imposed at the same time. U.S. v. Hicks, 4 F.3d 1358 (6th Cir. 1993).
6th Circuit applies § 2K2.1(c) cross-reference even though case did not involve attempt, solicitation or conspiracy. (330) Defendant was convicted of being a felon in possession of a firearm after shooting a woman in the head. The 6th Circuit upheld the application of section 2K2.1(c)(1), which, through a cross-reference to section 2X1.1, provides that the guideline for the underlying offense should be used if it would result in a greater offense level than that for firearms offense. Under this cross-reference, defendant was properly sentenced under § 2A2.2, the aggravated assault guideline. The fact that this case did not involve an attempt, solicitation or conspiracy did not matter. Section 2X1.1 is cross-referenced not because one is a member of a conspiracy or attempt, but because it indicates how the substantive underlying offense is to be treated. U.S. v. Hicks, 4 F.3d 1358 (6th Cir. 1993).
6th Circuit notes dangerous weather in upholding arson enhancements. (330) Under 2K1.4, a defendant’s arson sentence is enhanced if he “knowingly” created a substantial risk of death or serious bodily injury or if he attempted the destruction of a dwelling. Noting the cold temperatures and high winds prevailing when defendant set his fire, the 6th Circuit affirmed the district court’s enhancement on either basis. Though the house was unoccupied, the winds created a risk that the fire would spread to a nearby, occupied structure, and the difficulty of extinguishing the blaze in light of the conditions created a substantial risk to fire fighters. U.S. v. Turner, 995 F.2d 1357 (6th Cir. 1993).
6th Circuit upholds preponderance standard in finding planned offense of felon in possession of firearm. (330) Defendant was convicted of being a felon in possession of a firearm. Under 2K2.1(c)(2), the offense level for the “object offense” is applied if defendant possessed the gun in furtherance of another crime. The 6th Circuit affirmed the district court’s finding that defendant had been attempting to commit an armed robbery. It concluded that the district court’s finding was not clearly erroneous and that the court had properly applied a preponderance of the evidence standard. Senior Judge Celebrezze dissented on the grounds that defendant was being sentenced as if he had committed robbery even though it had not been proven beyond a reasonable doubt that he committed or intended to commit a “federal robbery offense.” U.S. v. Voyles, 995 F.2d 91 (6th Cir. 1993).
6th Circuit reviews sporting exception under clearly erroneous standard. (330) The 6th Circuit found that the determination under section 2K1.1(b)(2) of whether defendant used the gun in this case solely for sporting purposes was a question of fact to be reviewed under the clearly erroneous standard. U.S. v. Morrison, 983 F.2d 730 (6th Cir. 1993).
6th Circuit affirms that revolver was not possessed solely for sporting purposes. (330) Defendant was convicted of being a felon in possession of a firearm and was denied a reduction under section 2K2.1(b)(2) for possessing the weapon solely for sporting purposes. He contended he was entitled to the reduction because (a) he bought the weapon after the issuer of his hunting license suggested that it could be used for hunting, and (b) he was found in possession of the weapon shortly after an alleged hunting trip. The 6th Circuit affirmed the denial of the reduction, in light of evidence that (1) the handgun had no scope, (2) the gun was found loaded in a concealed shoulder holster, (3) defendant was stopped and arrested four to five hours after nightfall, (4) at the time of arrest, defendant claimed not to have been hunting but to have been working on the truck in which he was riding, (5) no hunting paraphernalia was found in the truck or on defendant, and (6) defendant’s purported hunting companion did not possess any firearm. U.S. v. Morrison, 983 F.2d 730 (6th Cir. 1993).
6th Circuit reverses enhancement for express threat of death where defendant received separate firearm sentence. (330) Defendant pled guilty to assaulting a postmaster and robbery of a post office, and carrying a firearm in relation to a crime of violence. He received an enhancement under section 2B3.1(b)(2)(D) (later designated 2B3.1(b)(2)(F)) based on his co-defendant’s express threat of death to the postmaster. The 6th Circuit reversed, holding the enhancement improper where defendant had already received a separate mandatory sentence under 18 U.S.C. section 924(c) for the firearm charge. The commentary to guideline section 2K2.4 provides that when a sentence under section 924(c) is imposed in conjunction with a sentence for an underlying offense, the specific offense characteristic for the firearm should not be applied with respect to the underlying offense. As application note 2 to section 2K2.4 makes clear, the express threat of death enhancement was related to the possession or use of the firearm. U.S. v. Smith, 981 F.2d 887 (6th Cir. 1992).
6th Circuit vacates sentence for 922(g) firearms charge that exceeded statutory maximum. (330) One defendant was sentenced to 121 months on a 18 U.S.C. section 922(g), to be served concurrently with a drug sentence, and a second defendant was sentenced to 188 months on the section 922(g) charge, to be served concurrently with a drug sentence. The 6th Circuit vacated the sentence because they exceeded the statutory maximum. Section 924(a)(2) provides for a statutory maximum of 10 years for violations of section 922(g). U.S. v. Sims, 975 F.2d 1225 (6th Cir. 1992).
6th Circuit says most analogous guideline for firearm offense was 2K2.2, not 2K2.3. (330) Defendant was found guilty of two counts of transporting a firearm in interstate commerce with intent to commit a felony, in violation of 18 U.S.C. section 924(b). Because the guidelines did not specifically address violations of section 924(b), section 2X5.1 instructed the district court to apply the most analogous guideline. The 6th Circuit affirmed that the pre-November 1989 version of section 2K2.2 (Receipt, Possession or Transportation of Firearms), rather than the pre-November 1989 version of section 2K2.3 (Prohibited Transactions in or Shipment of Firearms) was the most analogous guideline for the offense. Although the violations addressed by section 2K2.2 were not perfectly analogous to the section 924(b) violation, since defendant’s crime did not involve a specially regulated weapon, that section was clearly more analogous than section 2K2.3. U.S. v. Holmes, 975 F.2d 275 (6th Cir. 1992).
6th Circuit affirms difference in offense level under guideline § 2K2.3. (330) Defendant pled guilty to violating 26 U.S.C. § 5861(a), selling certain specified firearms without registering or paying a special tax. Under guideline § 2K2.3 in effect at the time defendant was sentenced, this offense carried a base offense level of 12. Defendant contended that his offense was “identical” to the conduct prohibited by 18 U.S.C. § 922(a)(1), i.e., selling firearms without being a registered dealer. This offense carried a base offense level of 6 under § 2K2.3. The 6th Circuit rejected defendant’s claim that the difference in offense levels violated the Sentencing Commission’s mandate to avoid unwarranted disparities in sentencing. Here the disparities were desirable. The weapons listed in § 5861 are particularly dangerous. “It is quite in accord with the guidelines to punish one who sells a machine gun or sawed-off shotgun illegally more severely than one who sells an ordinary hunting rifle.” U.S. v. Hopper, 941 F.2d 419 (6th Cir. 1991).
6th Circuit holds guidelines § 2K1.4 applies to cross-burning. (330) Defendants were convicted of various offenses in connection with a cross-burning, including using fire to commit a felony. The 6th Circuit found that guideline § 2K1.4, entitled “Arson; Property Damage by Use of Explosives” applied to the offense, even though defendant’s crime did not constitute arson. The government obtained convictions after a cross-burning incident for violations of 18 U.S.C. § 241 (conspiring to intimidate black dwelling holders because of race), 42 U.S.C. § 3631 (intimidating black dwelling holders by force or threat of force), and 18 U.S.C. § 844(h)(1) (using fire to commit a felony). The three guidelines used to determine the offense level were § 2H1.2 for the conspiracy, § 2H1.3 for the violation of the Fair Housing Act, and § 2K1.4 for the use of fire in the commission of a felony. The “use of fire” conviction is the offense underlying the conspiracy. U.S. v. Gresser, 935 F.2d 96 (6th Cir. 1991).
6th Circuit holds guidelines do not limit consideration of prior offenses for purposes of weapon enhancement under 18 U.S.C. 924(e). (330) Defendant received a 15-year minimum term of imprisonment under 18 U.S.C. § 924(e). Relying upon guideline § 4A1.2, defendant argued that in applying § 924(e), felony convictions more than 15 years old should not be considered. The 6th Circuit rejected this argument, finding that guideline § 4A1.2 does not affect the statutory range set in § 924(e). Although the sentencing guidelines restrict the sentencing court’s consideration of certain past offenses, § 924(e) does not. U.S. v. Moreno, 933 F.2d 362 (6th Cir. 1991).
6th Circuit holds that sentence for firearm conviction may be enhanced if firearm is used to commit state crime. (330) Defendant was convicted of possession of a sawed-off rifle. Guideline § 2K2.2(c) provided at the time that if the defendant used the firearm in the commission of another offense, the court should apply the guideline for the other offense, provided that the resulting offense level is higher. The government contended that defendant used the weapon to commit an aggravated assault under state law. The district court refused to apply the guideline for aggravated assault because it found that the term “other offense” applied only to federal crimes, not a state crime. The 6th Circuit reversed, and remanded the case to the district court to determine whether defendant’s conduct constituted aggravated assault. However, the district court was instructed to apply the federal definition of aggravated assault. U.S. v. Smith, 910 F.2d 326 (6th Cir. 1990).
6th Circuit upholds sentence for possession of gun during drug offense even though defendant was not charged with drug offense. (330) Defendant pled guilty to making a false statement to procure a firearm. The pre-sentence report stated that defendant took the gun to the crack house, and defendant did not challenge the report. Seven days after purchasing the gun defendant was arrested unarmed at an airport with 488 grams of cocaine. Defendant was not charged with running a crack house and had not yet gone to trial on the airport arrest. However, the district court found by a preponderance of the evidence that the defendant had used the firearm in drug trafficking and applied guideline § 2K2.1(c)(1), enhancing the sentence to five years from a range of 4-27 months. The 6th Circuit affirmed, noting that it “may be thought anomalous that a defendant can receive a five-fold increase in sentence because a preponderance of evidence indicates he is guilty of an uncharged crime” but such increases are possible under the guidelines, as stated in the commentary to guideline § 2K2.1. U.S. v. Bronaugh, 895 F.2d 247 (6th Cir. 1990).
6th Circuit rules that holding weapon as collateral for debt is not grounds for four point reduction in offense level. (330) Defendant pled guilty to being a felon in possession of a firearm. He argued that because he held the gun as collateral for a debt owed, he was entitled to a four point reduction in his offense level under § 2K21(b)(2). That section provides for a reduction if the defendant “obtained or possessed the firearm for sport or recreation.” Finding that the Sentencing Commission intended that description to be an all inclusive list, the 6th Circuit held that the refusal to grant the reduction was proper, even though the defendant held the gun for innocent purposes. Under the language of that section, only possession for sport or recreation qualifies as intended lawful use. It rejected the defendant’s argument that his possession was more innocent than sporting use, because he never intended to discharge the weapon. U.S. v. Wilson, 878 F.2d 921 (6th Cir. 1989).
7th Circuit upholds increase for transferring gun knowing it would be used in another felony. (330) Defendant unlawfully possessed a firearm for a few weeks before selling it to Dircks, who defendant knew was a felon and a drug user. The district court applied a § 2K2.1(b)(6)(B) enhancement, finding that defendant had transferred the gun with knowledge or reason to believe it would be possessed “in connection with another felony offense,” i.e. Dircks’s illegal possession of the firearm. The Seventh Circuit affirmed. By selling the pistol to a person that defendant knew was an unlawful user of controlled substances, and thus someone who could not legally possess a firearm, defendant transferred the pistol with knowledge or reason to believe that the gun would be used to commit another felony offense. Although “another felony offense” was previously defined to exclude firearms and explosives offenses, the commentary was modified in 2006. It now only excludes from the definition of “another felony offense” the possession or trafficking offense that served as the basis for the defendant’s conviction. U.S. v. Jackson, 741 F.3d 861 (7th Cir. 2014).
7th Circuit says applying trafficking and other felony increases was improper double counting. (330) Defendant sold a shotgun, rifle, and revolver to a confidential informant (CI), and pled guilty to three counts of being a felon in possession of a firearm. The district court applied a four-level increase under § 2K2.1(b)(5) because defendant engaged in the trafficking of firearms, and a four-level enhancement under § 2K2.1(b) (6)(B) because he transferred a firearm with knowledge that it would be used or possessed in connection with another felony offense. The “other felony offense” was because the CI told defendant he was a convicted felon, and he was going to re-sell the firearms for profit. The Seventh Circuit held that the trafficking enhancement and the other felony enhancement constituted improper double counting. The enhancements were based on the same conduct – defendant’s transfer of the firearms to the CI with knowledge that the CI was going to resell the firearms. This double counting was improper under Note 13(D) to § 2K2.1. U.S. v. Johns, 732 F.3d 736 (7th Cir. 2013).
7th Circuit rules defendant possessed eight or more firearms. (330) Wiseman purchased eight firearms. When interviewed by ATF agents, she told them that she had purchased the guns for defendant, who was prohibited from possessing firearms because of prior felony convictions. Defendant was arrested after selling an AK-47 assault rifle to an undercover agent. He pled guilty to being a felon in possession of a firearm. The Seventh Circuit upheld a four-level increase under § 2K2.1(b)(1) based on defendant’s responsibility for nine firearms: the eight purchased by Wiseman, plus the AK-47 he sold to the undercover agent. The court had ample evidence that defendant possessed eight or more guns. It was presented with statements from multiple witnesses on this point, and decided defendant’s testimony that he only possessed three firearms was not credible. The district court’s finding had the support of Wiseman’s statements, both to the government and to the district court at her own change-of-plea and sentencing proceedings. The fact that no government witness on this point other than the undercover agent testified at defendant’s change-of-plea and sentencing hearings did not matter. There was no clear error. U.S. v. Ghiassi, 729 F.3d 690 (7th Cir. 2013).
7th Circuit upholds reasonableness of 480-month sentence for felon-in-possession offense. (330) Over the course of two days, defendant went on a shooting spree, firing on residential streets, at family homes, and at a moving vehicle, all in an apparent attempt to retaliate against rival gang members. He was convicted of being a felon in possession of a firearm. Defendant’s advisory guideline range was 262-327 months, but at sentencing, the government argued that defendant’s conduct and criminal history warranted an upward variance under §§ 4A1.3(a)(4)(B), 5K2.6, and 5K2.14. The district court agreed, and sentenced defendant to 480 months. The Seventh Circuit held that the 480-month sentence was substantively reasonable. The district court provided a comprehensive explanation for the upward variance. It noted its consideration of all of the factors in 18 U.S.C. § 3553(a), and discussed defendant’s troubled childhood and addiction to illegal drugs and alcohol. It then addressed the government’s motion for an upward variance, accepting the government’s argument, and citing three sections of the guidelines in support of the upward variance. U.S. v. Taylor, 701 F.3d 1166 (7th Cir. 2012).
7th Circuit upholds firearm increase where defendant was aggressor in altercation. (330) Defendant pled guilty to possessing a firearm while being an unlawful drug user. He argued that a § 2K2.1(b)(6) increase for using the firearm in connection with another offense should not apply because he discharged the firearm in self-defense to ward off a drug dealer’s purported attack. The Seventh Circuit upheld the enhancement, ruling the evidence supported a permissible inference that defendant was the aggressor who initiated the confrontation. After he fled the drug dealer’s home, defendant retrieved a gun from his mother’s house without knowing whether the dealer had followed him. Only after defendant armed himself in preparation to be the aggressor did he learn that the dealer had been spotted in the neighborhood. Moreover, when defendant walked out of the home, he did not see the dealer and there was no gunfire. Instead, defendant walked almost 60 feet from the home and waited outside for three minutes before he eventually spotted the dealer some distance away in a car with a firearm hanging out of the window. There also was evidence that defendant was enraged, was using drugs, and wanted to retaliate against the dealer for refusing to give him drugs and for spitting in his face. U.S. v. Rice, 673 F.3d 537 (7th Cir. 2012).
7th Circuit holds conspiracy to commit robbery was crime of violence. (330) Defendant pled guilty to being a felon in possession of a firearm, and received a two-level enhancement under § 2K2.1(a)(2) based on the court’s finding that defendant had at least two other convictions for crimes of violence. Defendant was convicted under Ind.Code § 35–41–5–2 of conspiring to violate Ind.Code § 35–42–5–1, Indiana’s robbery statute. The Seventh Circuit held that conspiracy to commit robbery is a crime of violence under the guidelines. Note 1 to § 4B1.2 says that an inchoate offense such as conspiracy is a crime of violence when the underlying crime is one. The court rejected defendant’s argument that this note has been superseded by Begay v. U.S., 553 U.S. 137 (2008), and later decisions. Begay and its successors interpreted a statute, not the guidelines. When an agency interprets one of its own regulations, the agency’s understanding prevails unless it contradicts the text of the regulation. Application note 1 did not conflict with the language of § 4B1.2. U.S. v. Raupp, 677 F.3d 756 (7th Cir. 2012).
7th Circuit finds no plain error in treating burglary as crime of violence. (330) Defendant pled guilty to being a felon in possession of a firearm. He received an enhanced sentence under § 2K2.1(a)(2) based in part on a burglary conviction, under California Penal Code § 459, that the district court found was a crime of violence. The Seventh Circuit held that the district court did not commit plain error by treating defendant’s burglary conviction as a crime of violence. The Ninth Circuit has recently held that § 459 is categorically a crime of violence under § 4B1.2(a)’s residual clause. U.S. v. Park, 649 F.3d 1175 (9th Cir. 2011). The district court should have treated § 459 as a crime that otherwise presents a serious potential risk of injury, rather than as the enumerated crime of burglary of a dwelling under § 4B1.2(a)(2). But since § 459 nonetheless still qualified as a crime of violence, defendant did not identify an error in the guidelines calculation. U.S. v. Scanlan, 667 F.3d 896 (7th Cir. 2012).
7th Circuit says even accidental discharge of firearm triggers 10-year mandatory minimum. (330) Defendant argued that the district court erred in applying a 120-month enhancement under 18 U.S.C. § 924(c)(1)(A)(iii) for discharging a firearm “during and in relation to any crime of violence,” because his co-conspirator’s shotgun discharge was accidental. The Seventh Circuit found that an accidental discharge can trigger the ten-year mandatory minimum because § 924(c) does not require an intent to discharge the firearm. See Dean v. U.S., 556 U.S. 568, 129 S.Ct. 1849 (2009) (ten-year mandatory minimum applies if the gun is discharged in the course of a violent or drug trafficking crime, whether on purpose or by accident). Dean is not limited to cases in which the accidental gunshot might hurt or scare the victim. U.S. v. Durham, 645 F.3d 883 (7th Cir. 2011).
7th Circuit increases sentence where defendant pulled gun from under seat during traffic stop. (330) Police arrested defendant after a traffic stop during which he pulled a handgun from beneath the driver’s seat of the truck. The Seventh Circuit upheld a four-level increase under § 2K2.1(b)(6) for using or possessing the firearm in connection with another felony offense. The district court did not clearly err in finding that defendant’s possession of the firearm while resisting officers under § 35-44-3 of the Indiana resisting-law-enforcement statute amounted to a felony under Indiana law. The district court’s conclusion that only a split-second separated the retrieval of the handgun from its actual use suggested the defendant’s act of grasping and removing it from beneath the seat was sufficient to count as “drawing” under the statute. Moreover, the court made clear that it would have imposed the same sentence regardless of the precise technical answer to the § 2K2.1(b)(6) under the Guidelines. U.S. v. Suggs, 624 F.3d 370 (7th Cir. 2010).
7th Circuit finds below-range sentence was reasonable despite addition of five years for potential firearm. (330) Defendant was convicted of two drug charges, and the district court declared a mistrial on the remaining weapons charge. His guideline range was 360 months to life, but defendant requested a downward departure to a mandatory minimum 20-year sentence based on favorable 18 U.S.C. § 3553(a) factors. The district court considered defendant’s rehabilitation efforts since his arrest, and imposed a 25-year sentence. The court reasoned that defendant almost certainly possessed a weapon, which would have been associated with a 60-month sentence. It added those 60 months to the 240-months mandated by statute, to arrive at 25 years. Defendant argued that his sentence was procedurally unreasonable, but the Seventh Circuit disagreed. Defendant’s potential possession of a gun was a circumstance of the offense within the ambit of 18 U.S.C. § 3553(a)(1). The court carefully considered, among other factors, the guidelines range, defendant’s arguments, defendant’s family history, and the impact that various sentences could have on defendant’s rehabilitation. It then imposed a below-guidelines sentence. U.S. v. Booker, 612 F.3d 596 (7th Cir. 2010).
7th Circuit finds that fleeing from police officer in a vehicle is a crime of violence. (330) In U.S. v. Spells, 537 F.3d 743 (7th Cir. 2008), the Seventh Circuit held that the Indiana offense of fleeing a police officer in a vehicle, in violation of Indiana Code § 35-44-3-3(a)(3), is a “violent felony” under the Armed Career Criminal Act, 18 U.S.C. § 924(e). In U.S. v. Sykes, 598 F.3d 334 (7th Cir. 2010), the court declined to reconsider Spells in light of the Eleventh Circuit’s conclusion that fleeing from a police in a vehicle is not a “violent felony.” Here, the court held that its conclusion that fleeing a police officer in a vehicle is a “violent felony” requires the conclusion that the Indiana offense is also a “crime of violence” under § 2K2.1(a)(2). U.S. v. Dunson, 603 F.3d 1023 (7th Cir. 2010).
7th Circuit says breaking into firearms store was “another offense” in connection with theft of guns from store. (330) Defendant broke into a federally licensed firearms dealer. He was arrested by police responding to a silent alarm. The police recovered two guns in a nearby dumpster where he was hiding, 15 guns in a bag by the store exit, and additional guns in the store that had been removed from their cases. Defendant pled guilty to stealing firearms from a licensed dealer and being a felon in possession of a firearm. The Seventh Circuit upheld a § 2K2.1(b)(6) increase for possessing the firearms in connection with another felony offense. Note 14(B) to § 2K2.1(b)(6) says the enhancement applies when a defendant “during the course of a burglary, finds and takes a firearm, even if the defendant did not engage in any other conduct with that firearm.” U.S. v. Krumwiede, 599 F.3d 785 (7th Cir. 2010).
7th Circuit finds informants’ statements were corroborated by defendant’s phone calls while in jail. (330) After defendant arrested for an outstanding warrant, police found $2500 in cash in his pockets, and a loaded gun in his car. He was convicted of being a felon in possession. At sentencing, the district court varied upward, finding that defendant possessed the gun because he was involved in selling drugs. A drug-detection dog had alerted to defendant’s car (although no drugs were found) and to the money found on defendant. In addition, a confidential informant had told police that defendant regularly traveled to Schaumburg to buy cocaine from “Stan,” and that “Steve” and “Bruce” assisted defendant with drug trafficking. The Seventh Circuit held that the district court did not err in relying on the confidential informant’s statements. The statements were corroborated by phone calls defendant placed from jail to “Steve” and “Bruce” in Schaumburg, asking for bail money. In one conversation, defendant stated: “I got – they caught me with a gun. That’s it. They got me with a gun. That’s it.” It was reasonable to infer that defendant was telling the person that he had been caught only with a gun, not with evidence of other crimes, such as drugs. U.S. v. Mays, 591 F.3d 733 (7th Cir. 2010).
7th Circuit finds reckless injury and sexual assault on a child required insufficient mens rea to be crimes of violence. (330) The district court found that defendant’s prior Wisconsin convictions for first-degree reckless injury, in violation of Wis. Stat. § 940.23 and second-degree sexual assault on a child, in violation of Wis. Stat. § 948.02(2) were crimes of violence, and increased his base offense level to 24 under § 2K2.1(a)(2). The Seventh Circuit reversed, holding that neither offense was a crime of violence. Neither had as an element the use, attempted use, or threatened use of physical force against another, and therefore the applicability of § 2K2.1(a) turned on whether the convictions qualified under the “residual clause.” The first-degree reckless injury offense did not qualify because it only required a mens rea of criminal recklessness. The second-degree sexual assault on a child was not a crime of violence because it was a strict-liability offense – no mens rea was required with respect to the age of the victim, and neither the victim’s consent nor a mistake or misrepresentation regarding the victim’s age was relevant. Strict-liability crimes do not qualify under the residual clause because they do not require “purposeful” conduct. U.S. v. McDonald, 592 F.3d 808 (7th Cir. 2010).
7th Circuit reverses increase for use of BB gun even though conviction was based on other weapons. (330) Defendant pled guilty to two armed robberies and using and carrying a firearm during the commission of one of those robberies. He received a four-level enhancement under § 2B3.1(b)(2)(D) for “otherwise using” a dangerous weapon because in one robbery, he beat the store owner on the head with a plastic BB gun. Defendant argued that this was impermissible double counting because he also received an 84-month sentence for using and carrying a firearm pursuant to 18 U.S.C. § 924(c). See Note 4 to § 2K2.4. The Seventh Circuit agreed with defendant that the court erred in applying the firearm enhancement even though the semi-automatic weapons possessed by his co-defendants were different than the weapon responsible for the enhancement (the plastic BB gun). For enhancement purposes, real guns are treated as indistinguishable from fake guns. U.S. v. Eubanks, 593 F.3d 645 (7th Cir. 2010).
7th Circuit rules conviction for criminal recklessness was crime of violence. (330) The district court found that defendant’s 1996 conviction for criminal recklessness under Indiana law was a “crime of violence” under U.S.S.G. § 2K2.1(a) (4)(A). Defendant had stabbed an unarmed man two or three times with a knife he had grabbed from his kitchen, after the man chased defendant up the stairs of defendant’s home threatening to beat him. The first stab was justified, but defendant admitted to stabbing his unarmed attacker “too many times.” The statute outlaws bodily-harm-risking acts performed “recklessly, knowingly, or intentionally.” Defendant had to be convicted under the “intentional” part of this “divisible” statute for the offense to qualify as a crime of violence. The Seventh Cir cuit found that defendant violated the intentional part of the statute, and upheld the crime of violence enhancement. Defendant behaved intentionally when he performed the act of the extra stab. He also intended the extra stab’s consequences, i.e. the resulting bodily injury. The fact that defendant was allegedly high on cocaine did not matter. The court did not credit defendant’s claim that he was acting in self-defense. Had defendant actually been properly defending himself with the extra stab, he would have had a complete defense to his felony conviction. U.S. v. Clinton, 591 F.3d 968 (7th Cir. 2010).
7th Circuit finds that offense involved more than 24 weapons. (330) Defendant and eight others were caught running guns from Mississippi to Chicago. The district court applied a six-level increase under § 2K2.1(b)(1) for an offense involving between 25 and 99 weapons. The Seventh Circuit affirmed the enhancement. Defendant admitted that he bought between eight and 24 guns, and so, for the § 2K2.1(b)(1) increase to apply, the court needed only to find that one more gun was involved. Although defendant argued that the district court should not have relied on the testimony of two cooperating witnesses to find that last gun, the district court found that the accounts of the witnesses were not “drastically divergent” and that what “one might read as lack of credibility” on one witness’s part was simply “lack of intelligence in understanding the question.” The court found the witnesses were credible. U.S. v. Statham, 581 F.3d 548 (7th Cir. 2009).
7th Circuit rules reckless discharge of firearm was not crime of violence. (330) The district court sentenced defendant under § 2K2.1(a)(4), finding that defendant’s prior Illinois conviction for reckless discharge of a firearm was a crime of violence. The Seventh Circuit held that the classification of the reckless discharge offense as a crime of violence was plain error. The offense does not have as an element the use or attempted use of force against the person of another; therefore it must qualify under the so-called residual clause. However, under Begay v. U.S., 553 U.S. 137, 128 S.Ct. 1581 (2008), the offense must be similar to burglary or arson in the sense of entailing “purposeful, violent and aggressive conduct.” The Illinois statute included at least two varieties of weapons offense. In one, the person discharges the gun recklessly. In the other, the person fires the gun deliberately but is reckless about the consequences. The second variety satisfies Begay; the first does not. The Illinois statute is not “divisible.” Since it only created one offense, the “recklessness” component applied to all of its elements, including the discharge of the gun. Thus, conviction under the state statute does not involve the sort of purposeful, aggressive and violent conduct that Begay requires for classification as a violent felony. U.S. v. Gear, 577 F.3d 810 (7th Cir. 2009).
7th Circuit reaffirms that court may not account for mandatory gun sentence when sentencing for underlying offense. (330) Defendant was convicted of three counts of robbery and three counts of using a firearm in connection with those crimes. Under 18 U.S.C. §924(c)(1)(A)(ii), the judge was required to impose at least a seven-year sentence for the first gun conviction, and under §924(c)(1)(C)(i), consecutive sentences of at least 25 years for each of the other two convictions. In addition, the gun sentences had to run consecutively to whatever sentence the judge imposed for the robbery counts. The judge stated that if she could, she would have considered the 57-year minimum when crafting the robbery sentences. However, under U.S. v. Roberson, 474 F.3d 432 (7th Cir. 2007), the mandatory add-one sentence flowing from using a gun in a crime of violence may not be used to justify a lower sentence on the underlying charge. The Seventh Circuit upheld the sentences imposed as reasonable. Under Roberson, the court asks only whether defendant’s sentence for the underlying crimes was reasonable, putting aside any concerns arising from the §924(c) add-ons. U.S. v. Calabrese, 572 F.3d 362 (7th Cir. 2009).
7th Circuit says post-Booker use of amended commentary does not violate ex post facto clause. (330) Defendant, together with several accomplices, burglarized a residence and stole firearms and ammunition. Defendant pled guilty to being a felon in possession of a firearm. The district court applied a four-level enhancement for possessing any firearm “in connection with another felony offense,” in this case the burglary. The increase was required by Note 14(b)(1), amended in 2006 to provide that the enhancement applies when a defendant takes a firearm during the course of a burglary. Defendant argued that the application note was inconsistent with the language of the guideline, and the court’s reliance on that commentary violated the ex post facto clause. The Seventh Circuit found that neither claim had any merit. The burglary was distinct from defendant’s simple possession of the firearms, and therefore was consistent with § 2K2.1(b)(6), which refers to “another” felony offense. Moreover, in view of the advisory nature of the Guidelines post-Booker, there is no ex post facto problem posed by applying the version of the Guidelines in effect at the time of defendant’s sentencing. U.S. v. Hill, 563 F.3d 572 (7th Cir. 2009).
7th Circuit rules gun statute’s “except” clause applies only if defendant is subject to another mandatory minimum under §924(c)(1). (330) Defendants were convicted of drug trafficking and possessing a gun in furtherance of the drug trafficking crime, 18 U.S.C. §924(c)(1)(A). Depending on how the firearm was used in the offense, §924(c)(1) provides for different mandatory minimum sentences which apply “[e]xcept to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law ….” In U.S. v. Whitley, 529 F.3d 150 (2d Cir. 2008), abrogated as to consecutive sentencing by Abbott v. U.S., 131 S.Ct. 18 (2010) as recognized by U.S. v. Tejada, 631 F.3d 614 (2d Cir. 2011), the Second Circuit held that the “except” clause barred a court from imposing an additional term of imprisonment under §924(c)(1) if that term would be shorter than a statutory minimum required by any other count of conviction, including the drug trafficking crime underlying the §924(c)(1) count. This reading would have prevented the district court here from imposing a consecutive five-year term on the §924(c)(1) counts because each of the defendants was subject to a mandatory term of 10 or 20 years on the conspiracy count. The Seventh Circuit rejected Whitley, finding that the most natural reading of the “except” clause is that a defendant shall receive the mandatory minimum set forth in §924(c)(1)(A) unless subsections (c)(1)(B) or (c)(1)(C) or another penalty provision elsewhere in the U.S. Code requires a higher minimum sentence for that §924(c)(1) offense. U.S. v. Easter, 553 F.3d 519 (7th Cir. 2009).
7th Circuit says increasing records offense for stolen firearm was improper double counting. (330) Defendant was convicted of selling stolen firearms, 18 U.S.C. §922(j), and selling firearms without maintaining proper records, 18 U.S.C. §922(B)(5). He argued that a §2K2.1(b)(4) stolen firearm enhancement was double counting. Note 9 to §2K2.1(b)(4) provides that if the only offense to which §2K2.1 applies is one of certain listed offenses, and the base offense level is determined under subsection (a)(7), then a court should not apply the (b)(4) adjustment (unless the offense involved a firearm with an altered or obliterated serial number). The Seventh Circuit found that the stolen firearm enhancement constituted double counting, even though the very same firearm supported both the §922(j) convictions and the §922(b)(5) conviction. The fact that the firearms were stolen was the only thing that made the sales illegal. The fact that defendant failed to keep proper records of those sales was independently criminal and independently punishable. However, it was improper double-counting to use the gun’s status to enhance the guideline range for the records offense. U.S. v. Podhorn, 549 F.3d 552 (7th Cir. 2008).
7th Circuit rejects collection reduction where defendant possessed at least one gun for security. (330) Defendant was convicted of aiding and abetting a felon in possession of a firearm. Defendant described himself as a gun collector and argued that he was entitled to a reduction under §2K2.1(b)(2). The district court held that defendant could not be treated as a collector because he refurbished some of the guns, sold them, and used the proceeds to buy others. The district court found that once defendant sold a gun, even if he did so as a stop toward improving his collection, he no longer possessed it for collection. The Seventh Circuit found that the sale of a single weapon did not inevitably prevent a person from being a collector, but nonetheless ruled that defendant was not entitled to the reduction. Section 2K2.1(b)(2) applies only when “all” of the firearms were used for sporting or collection purposes. Agents found a loaded shotgun in the downstairs corridor of defendant’s house. Defendant conceded that he kept the shotgun for security against intruders, rather than as part of a collection. U.S. v. Miller, 547 F.3d 718 (7th Cir. 2008).
7th Circuit says findings did not support increase for possessing gun in connection with another felony. (330) During a struggle with police, defendant reached for his waistband or his right pants pocket. After subduing defendant, officers removed a large loaded gun from defendant’s right pants pocket. The Seventh Circuit rejected a four-level enhancement under §2K2.1(b)(6) for possessing the gun “in connection with another felony offense.” Although the district court found that defendant was not reaching for his gun in order to discard it, the court’s remaining findings did not support the inference that defendant intended and was attempting to shoot the officers. Reaching for a gun may indicate an intent to point, brandish or fire it, or to hold the officers at bay in order to escape. Attempting to point or brandish a gun is only a misdemeanor under Illinois law. On remand, the district court may find, depending on its interpretation of the facts, that defendant’s conduct amounted to attempted aggravated battery, which is a felony. U.S. v. Robinson, 537 F.3d 798 (7th Cir. 2008).
7th Circuit applies “use” enhancement for defendant who traded firearm for drugs. (330) Defendant traded a gun he possessed for drugs. He pled guilty to being a felon in possession of a firearm. The Seventh Circuit upheld a § 2K2.1 (b)(6) increase for using or possessing a firearm in connection with another felony offense based on his trade of the firearm for drugs. Defendant’s bartering of his guns for drugs constituted the “use” of the firearm under the first provision of § 2K2.1(b)(b). In Smith v. U.S., 508 U.S. 223 (1993), the Supreme Court held that a criminal who trades his firearm for drugs “uses” it during and in relation to a drug trafficking offense under § 924(c)(1). While the language in § 2K2.1(b)(6) is different from the statutory language at issue in Smith, the Supreme Court’s reasoning was persuasive. U.S. v. Lang, 537 F.3d 718 (7th Cir. 2008).
7th Circuit affirms enhanced sentence for gun that qualified as “semi-automatic assault weapon,” at time of possession. (330) When defendant was sentenced on firearm charges in August 2006, guideline § 2K2.1(a)(1) provided that if the offense involved a firearm described in 18 U.S.C. § 921(a)(30), the base offense level was 26. One of the firearms defendant had possessed in 2002 was an Intratec Tec-DC9. Although § 921(a)(30) included the Intratec Tec-DC9 on the day defendant possessed the guns, § 921(a)(30) was repealed effective September 2004. Defendant argued that because § 921(a)(30) expired before his trial and sentencing, and § 2K2.1 depends on § 921(a)(30), then § 2K2.1(a) had no meaning at the time he was sentenced. The Seventh Circuit found that its decision in U.S. v. Simmons, 485 F.3d 951 (7th Cir. 2007) foreclosed this argument. Simmons held that even though § 921(a) (30) had been repealed, the Sentencing Commission intended for the courts to determine whether the firearm used by a defendant qualified as a “semiautomatic assault weapon” at the time of the crime. Here, defendant possessed the firearms while § 921(a)(30) was still in effect. U.S. v. Rice, 520 F.3d 811 (7th Cir. 2008).
7th Circuit says prior § 924(c)(1)(C) conviction need not be alleged in indictment or proven at trial. (330) Defendant was convicted of bank robbery and carrying a firearm during the robbery (18 U.S.C. § 924(c)). The district court imposed a mandatory minimum sentence of 25 years under § 924(c)(1)(C) based on a prior § 924(c)(1) conviction. Defendant argued that this was improper because his previous conviction was neither alleged in the indictment nor proven at trial. The Seventh Circuit rejected the argument because the Supreme Court has held that a judge may find that a defendant has a prior conviction to trigger a mandatory minimum sentence, and these facts need not be charged in the indictment or proven to a jury beyond a reasonable doubt. Harris v. U.S., 536 U.S. 545 (2002), overruled by Alleyne v. U.S., 133 S.Ct. 2151 (2013). Thus, the district court could properly conclude that defendant had been previously convicted under § 924(c)(1) and therefore deserved a 25-year mandatory minimum sentence under that section. U.S. v. Price, 516 F.3d 597 (7th Cir. 2008).
7th Circuit allows consideration of dismissed firearm conduct in setting sentence. (330) The district court sentenced defendant to 18 months for his firearm conviction, in the middle of his 15-21 month guideline range. Defendant argued that the court penalized him because he sold the gun to Eller in front of an elementary school. Defendant was originally charged with possessing a firearm near a school zone, 18 U.S.C. § 922, a charge that was later dismissed. The fact that the charge was dismissed did not erase the facts surrounding the sale. Defendant admitted the facts in the PSR, which detailed the sale. As such, defendant’s proximity to the school was a part of the “nature and circumstances of the offense” that the district court was obligated to consider under 18 U.S.C. § 3553(a)(1). It did not render the resulting sentence unreasonable. The panel also rejected defendant’s claim that the court improperly weighed the § 3553(a) factors. The court noted defendant’s family situation and explicitly stated that it was taking into account the difficulty of raising a child alone. U.S. v. Haskins, 511 F.3d 688 (7th Cir. 2007).
7th Circuit rejects increase for death threat related to firearm for which defendant received consecutive § 924(c) sentence. (330) Defendant pled guilty to bank robbery, 18 U.S.C. § 2113(a), and carrying a firearm in relation to a crime of violence, 18 U.S.C. § 924(c). At sentencing, the district court added two levels to defendant’s base offense level on the robbery count because defendant’s co-defendant made a death threat (U.S.S.G. § 2B3.1(b)(2)(F)) during the robbery. Note 4 to § 2K2.4 instructs that when a court imposes a sentence for a conviction under § 924(c) in addition to a sentence for an underlying offense, such as the robbery in this case, the sentence court should “not apply any specific offense characteristic for possession, brandishing, use or discharge of a firearm when determining the sentence for the underlying offense.” Here, the co-defendant had threatened to “shoot” the bank manager. The Seventh Circuit held that Note 4 to § 2K2.4 prohibits, as double counting, an upward adjustment for a death threat that is related to the firearm for which the defendant received a mandatory consecutive sentence under § 924(c). U.S. v. Katalinic, 510 F.3d 744 (7th Cir. 2007).
7th Circuit upholds reliance on police incident report to show firearm was stolen. (330) Defendant pled guilty to being a felon in possession of a firearm. The district court applied a two-level increase under § 2K2.1(b)(4) because it found that the shotgun recovered from defendant’s house was stolen. Defendant argued that the court improperly relied on a local police incident report showing that a black 12-gauge Mossberg shotgun, the kind of weapon found in defendant’s house, was stolen about two years before his arrest. The Seventh Circuit agreed that this incident report alone was not reliable evidence, but nonetheless affirmed the enhancement. The report stemmed from an unrelated crime that happened two years before defendant’s arrest, and did not provide the serial number for the gun reported stolen. However, it was not the only evidence the government introduced to show that the shotgun found in his house was stolen. A police detective also testified that she undertook an electronic query for the serial number taken from the shotgun found in defendant’s house, and discovered that a black 12-gauge Mossberg shotgun was reported stolen, and that the case remained open with the police department under the same case number designation on the police incident report. The detective’s testimony confirmed the reliability of the incident report. U.S. v. Sanchez, 507 F.3d 532 (7th Cir. 2007).
7th Circuit agrees that defendant knew buyer would use gun in another felony offense. (330) Section 2K2.1(b)(5) calls for an enhanced sentence if the defendant “transferred any firearm or ammunition with … reason to believe that it would be used or possessed in connection with another felony offense.” This guideline does not apply simply because the buyer was a felon and upon purchasing the gun became a felon in possession of a firearm. Here, however, Foster, the buyer, actually attempted an armed robbery with the gun that he bought from defendant. In addition, Foster offered to pay defendant in crack. The Seventh Circuit approved the increase, agreeing that defendant had reason to believe that the gun would be used in a felony. Foster was a convicted felon, had done drugs with defendant and committed acts of violence in his presence. The district court found that there was “absolutely no way to imagine that Samuel Foster had a licit use for this gun.” U.S. v. Mahalick, 498 F.3d 475 (7th Cir. 2007).
7th Circuit rejects double counting problem where four firearm counts were grouped together. (330) Defendant was convicted under 18 U.S.C. § 922(d)(1) with selling a gun to a felon. He argued that the district court engaged in impermissible double counting by imposing an enhancement under § 2K2.1(b)(5) for transferring a gun with reason to believe that it would be used in a felony. The Seventh Circuit disagreed. First, although the provisions cover similar ground, selling to a felon and selling to one who will commit a felony are not exactly the same. Second, even if the enhancement and the substantive offense punished the same behavior, defendant’s four counts of conviction were grouped under § 3C1.2(d) in such a way as to overcome any fears of double counting. Defendant was charged with several firearms offenses, each offense carrying the same base offense level of 20, and the enhancement would only double count the offense of selling a gun to a felon. The district court therefore only needed to pick one of the other offenses to form the base level. Since all of the substantive offenses carried the same level, they were essentially interchangeable. U.S. v. Mahalick, 498 F.3d 475 (7th Cir. 2007).
7th Circuit finds firearm enhancement constituted double counting where defendant was convicted of possessing same gun. (330) Defendant pled guilty to drug and firearms charges. He argued that the court punished him twice for possessing the same firearm, and the Seventh Circuit agreed. When a defendant is sentenced for the possession of a firearm under § 2K2.1, the district court cannot increase the defendant’s sentence on another count for possession of that same firearm. See Note 4 to § 2K2.4. The district court violated this prohibition on double counting. The court increased defendant’s offense level on the drug conspiracy count for possessing a gun, and then it sentenced defendant to a concurrent 120-month sentence for possessing the same firearm. The court could do one or the other, but not both. U.S. v. Bustamante, 493 F.3d 879 (7th Cir. 2007).
7th Circuit upholds refusal to impose below-guideline sentence based on duress. (330) Defendant was convicted of firearms charges, and requested a lower sentence due to coercion and duress. Defendant claimed that he was under duress because his mother was murdered in October 2003 while he was in jail. He also claimed that when he was released from jail in January 2004, he was shot at several times and received death threats. Thus, he asserted that when he was pulled over by police in March 2004, he was wearing body armor and carrying weapons and ammunition because he was in fear for his life. The Seventh Circuit ruled that the district court properly found that his assertion of duress was improbable and did not err in denying his request for a lower sentence on that basis. Jettisoning the weapon (that was supposedly protecting him) while being pursued by police is not an indication of duress, and his evasive conduct was more reasonably attributable to fear of apprehension. Additionally, the police stop occurred five months after defendant’s mother was murdered, and two months after defendant alleged he was shot at and received death threats. The time lapse indicated that defendant was not under a reasonable belief of a current and imminent threat. U.S. v. Burks, 490 F.3d 563 (7th Cir. 2007).
7th Circuit says § 2K2.1(a)(5) increase applies if firearm qualified as semiautomatic weapon at time of the crime. (330) Defendant was convicted of dealing in firearms without a license. The district court enhanced his sentence under U.S.S.G. § 2K2.1(a)(5), finding that the offense involved the sale of a semiautomatic weapon as defined in 18 U.S.C. § 921(a)(30). Defendant noted that § 921(a)(30) was repealed after the Violent Crime Control and Law Enforcement Act of 1964 expired in 2004. He argued that § 2K2.1 (a)(5) incorporated and depended on § 921(a)(30), and therefore that it expired when § 921(a)(30) expired. However, it was undisputed that § 921(a)(30) was in effect at the time defendant committed the weapons offense, and that § 2K2.1 (a)(5) was in the 2005 version of the guidelines manual under which defendant was properly sentenced. The Seventh Circuit rejected defendant’s argument. Under § 2K2.1(a)(5), courts should determine whether the firearm used by the defendant qualified as a semiautomatic weapon under § 921(a)(30) at the time of the crime. The panel also rejected defendant’s claim that one of the weapons involved in the offense, a Ruger Mini-14, fell within the exception to § 921(a)(30) for weapons manufactured prior to September 13, 1994. See § 922(v)(2). The exception in § 921(a) (30) for weapons made before September 13, 1994 applies to defendants charged with simple possession and not to sentence enhancements under the guidelines. U.S. v. Simmons, 485 F.3d 951 (7th Cir. 2007).
7th Circuit holds that court erred in departing but error was harmless. (330) Defendant was convicted of dealing in firearms without a license. The district court initially imposed a sentence of 56 months, but the Seventh Circuit remanded for resentencing in light of Booker. On remand, the district court determined the applicable advisory guideline range to be 63-78 months. The court then granted defendant’s motion for a downward departure and reduced his criminal history category from IV to III, resulting in an advisory guideline range of 51-63 months. The court imposed a 51-month sentence. The Seventh Circuit held that the court erred in granting a downward departure, but the error was harmless. Under Booker, the proper procedure is for the sentencing judge first to compute the guideline range, and then to apply the sentencing factors in 18 U.S.C. § 3553(a) in order to decide whether the sentence should be inside or outside the range. See U.S. v. Spano, 476 F.3d 476 (7th Cir. 2007). After Booker, departures have become “obsolete.” However, the error was harmless. “It is hard to conceive of below-range sentences that would be unreasonably high.” Defendant’s sentence was an entire year below the low end of the appropriate guideline range. U.S. v. Simmons, 485 F.3d 951 (7th Cir. 2007).
7th Circuit finds “display fireworks” are an “explosive” under guidelines. (330) A jury convicted defendant of dealing in explosive materials without a license, in violation of 18 U.S.C. § 842(a)(1), and knowingly receiving explosive materials in interstate commerce, in violation of 18 U.S.C. § 842(a)(3)(A), based on his unauthorized possession and sale of “display fireworks.” Display fireworks contain more flash powder than regular fireworks and are subject to mass detonation. The guideline for defendant’s offenses, § 2K1.3, defines the term “explosive” to mean “gunpowders, powders used for blasting…or other ingredients in such proportions [or] quantities…that ignition…may cause an explosion.” At sentencing, the district court relied on expert testimony to find that the fireworks that defendant illegally possessed qualified as an “explosive” under the guideline because they were extremely volatile devices capable of “mass destruction.” The Seventh Circuit agreed that fireworks were explosives for purposes of § 2K1.3. U.S. v. Shearer, 479 F.3d 478 (7th Cir. 2007).
7th Circuit affirms enhancement for possessing more than 1,000 pounds of explosives. (330) Under the guideline for offenses involving the possession of explosives, § 2K1.3(b), a defendant’s offense level is increased by five if the offense involved more than 1,000 pounds of explosives. An application note instructs that the court should use “only the weight of the actual explosive material and the weight of packaging material that is necessary for the use or detonation of the explosives.” Defendant was convicted of possession of illegal fireworks. Records at his store showed that he had purchased illegal fireworks weighing more than 11,000 pounds. At sentencing, defendant introduced a letter from an expert stating that the fireworks contained only 38% pyrotechnic material. The Seventh Circuit affirmed the district court’s finding that defendant’s offense involved more than 1,000 pounds of explosives, noting that even if defendant’s offense involved 38% of 11,000 pounds of explosives, he still possessed more than 1,000 pounds. U.S. v. Shearer, 479 F.3d 478 (7th Cir. 2007).
7th Circuit finds no unreasonable disparity between 457-month sentence and accomplice’s 401-month sentence. (330) Defendant and his accomplice used automatic weapons to commit a bank robbery. During their escape, they set fire to the getaway car and shot at a police officer. Defendant’s accomplice agreed to plead guilty to the federal offenses of bank robbery and using a firearm during and in relation to a crime of violence and to the state offense of attempted manslaughter. Under the agreement, the accomplice’s state and federal sentences amounted to 401 months, including a 120-month mandatory sentence for use of a firearm during the bank robbery. Defendant was convicted of bank robbery, using a firearm during and in relation to a crime of violence, and arson (for burning the getaway car), but he was acquitted in state court of attempted manslaughter. At sentencing, the district court found that defendant had used a fully automatic weapon, even though it had not made that finding with respect to the weapon the accomplice used. That finding resulted in a 360-month mandatory sentence for using the firearm during the bank robbery. The district court sentenced defendant to 457 months’ imprisonment. The Seventh Circuit held that defendant’s sentence was not unreasonably disparate to his accomplice’s sentence, even if the accomplice’s state sentence were disregarded. U.S. v. Duncan, 479 F.3d 924 (7th Cir. 2007).
7th Circuit holds that mandatory add-on sentence did not justify reduction in sentence for underlying offense. (330) Defendant pled guilty to bank robbery and using a firearm in a crime of violence. Eighty-four months was the minimum sentence for the firearm offense if the gun was “brandished,” § 924(c)(1)(A)(ii), and a section § 924(c)(1) sentence cannot be made to run concurrently with any other sentence. § 924(c)(1)(D). The minimum guideline sentence for a bank robbery that did not involve the use of a gun was 46 months, and when the consecutive 84-month sentence required by § 924(c)(1) was tacked on, the total was 130 months. The district court found a 130-month sentence was “unreasonable” and contrary to § 3553(a). Because the court had no authority to alter the 84-month sentence, it sentenced defendant to one month for the bank robbery and the statutorily required consecutive 84 months on the weapons charge. The Seventh Circuit reversed the sentence, holding that the mandatory add-on sentence for using a firearm during a crime of violence or drug crime could not be used to justify a reduction of sentence for the underlying crime. Booker does not give judges authority to disregard statutes. The judge also was not permitted to second-guess the government’s decision to charge a violation of § 924(c)(1). The judge should have picked a sentence for the bank robbery without regard for the fact that a gun had been used in it, and then tacked on 84 months. U.S. v. Roberson, 474 F.3d 432 (7th Cir. 2007).
7th Circuit holds that guns defendant promised to obtain for buyer were properly counted by court. (330) Defendant was convicted of being a felon in possession of a firearm based on his sale of a shotgun to a confidential informant. The district court enhanced his base offense level under § 2K2.1(b) (1)(A) for possession of three or more guns. The Seventh Circuit affirmed, holding that the district court properly included two handguns that defendant promised to obtain for the buyer to facilitate the sale of the shotgun. Although the guns were not yet in defendant’s possession (he intended to “hit” a gun store in the future), he offered specific information about the guns, namely the number of guns (two) and the type of guns (handguns or pistols) to be bartered. Based on recorded conversations between defendant and the informant, there was ample evidence that the two pistols formed part of the consideration for the sale of the shotgun defendant was ultimately charged with possessing. U.S. v. Birk, 453 F.3d 893 (7th. Cir. 2006).
7th Circuit holds that PSR supported finding that ammunition was possessed in connection with offense. (330) Defendant was convicted of being a felon in possession of ammunition. The Seventh Circuit held that the PSR, which was not challenged by defendant and was adopted by the district court, supported a § 2K2.1 increase for possessing the ammunition in connection with another felony. The other felony was the state charge of Harboring or Aiding a Felon stemming from the events surrounding a murder. The PSR reported that on the day in question, defendant’s friend Allen had an argument with Edmond, and during the argument, Allen called defendant and was overheard telling defendant to “put it in the trunk” and get over the scene of the confrontation. Defendant arrived in his vehicle, opened the trunk of his car and Allen retrieved a gun from the trunk. Several minutes later, Allen used a 9 mm handgun to shoot and kill Edmond. Defendant and Allen fled, and defendant arrived at a residency where he told the occupants that he needed to hide something, and instructed them to lie about the ownership of his car. Police found eight boxes of 9 mm ammunition in the trunk of defendant’s car. A confidential informant housed with defendant in the county jail told investigators that defendant admitted he supplied Allen with the gun used in the shooting and there was a gun hidden in the car that the police never found. The next day, the gun was found in a compartment under back seat of defendant’s car. U.S. v. Wilson, 437 F.3d 616 (7th Cir. 2006).
7th Circuit holds that defendant failed to show that guideline sentence was unreasonable. (330) The district court calculated a guideline range of 30-37 months for defendant’s felon in possession offense, and imposed a 30-month sentence. Defendant argued that the district court did not properly consider his personal history and characteristics when it decided to stay within the guidelines. The Seventh Circuit disagreed, finding the court considered the § 3553(a) factors, and the sentence imposed was reasonably related to those factors. The court stated that defendant had “a tragic life,” that he was not an “ordinary” criminal defendant, and that he should be commended for “providing some stability for [his]children that perhaps he didn’t even have in his own life,” but he pled guilty to a serious crime and a sentence within the guideline’s range of 30-37 months was appropriate. Thus, the judge considered defendant’s arguments, but found that a guideline sentence was appropriate. Defendant did not demonstrate that the district court imposed an unreasonable sentence. U.S. v. Williams, 436 F.3d 767 (7th Cir. 2006).
7th Circuit holds that 115-month sentence for felon in possession was reasonable. (330) Defendant pled guilty to being a felon in possession of a firearm, and the district court sentenced him to 115 months’ imprisonment, the top of the guideline sentencing range. Upon a limited remand from the Seventh Circuit, the sentencing judge informed the appellate court that he would impose the same 115-month sentence under the advisory guidelines. The Seventh Circuit held that the 115-month sentence was reasonable. Defendant’s sentence lay within the guideline range, and defendant could not rebut the presumption of reasonableness attached to sentences within the guideline range. Although the judge did not expressly address all of the § 3353(a) factors, the record confirmed that the judge gave “meaningful consideration” to the factors. Although defendant had a difficult childhood and suffered from psychological problems, the judge found that defendant’s criminal history was “extraordinarily substantial” for someone as young as defendant, and it included convictions for crimes of violence. The current firearms offense was a harbinger of further trouble, and established the need for a very substantial sentence that would account for the gravity of defendant’s criminal history. U.S. v. Williams, 425 F.3d 478 (7th Cir. 2005).
7th Circuit holds that 57-month guideline sentences for firearms offenses were reasonable. (330) Defendant was convicted of possessing an unregistered short-barreled rifle and possessing a firearm with an obliterated serial number. The Seventh Circuit ordered a limited remand to the district court for proceedings consistent with U.S. v. Paladino, 401 F.3d 471 (7th Cir. 2005). The district judge issued an order advising the court that he would have imposed an identical sentence had he known that the Sentencing Guidelines were advisory. The Seventh Circuit affirmed the concurrent 57-months as reasonable. The sentences fell within the properly calculated guideline range and thus were presumptively reasonable, a presumption that defendant did not attempt to rebut. Moreover, defendant’s sentences lay in the middle of the proper guideline range, and reflected the court’s consideration of a number of the factors in 18 U.S.C. § 3553(a), including defendant’s four prior convictions, the fact he was on probation at the time of the offense, and his failure to accept responsibility. U.S. v. Hite, 425 F.3d 365 (7th Cir. 2005).)
7th Circuit says Booker and Blakely do not affect imposition of statutory minimum sentence. (330) Defendant was convicted of firearms charges under 18 U.S.C. § 924(c)(1) (a). The district court found that the gun used by defendant was a machine gun, subjecting him to a 30-year mandatory minimum. See § 924(c)(1)(B) (ii). The Seventh Circuit rejected defendant’s argument that Booker and Blakely required the vacation of his sentence. Nothing in Booker or Blakely suggested that the Court reconsidered, much less overruled, Harris v. U.S., 536 U.S. 545 (2002), overruled by Alleyne v. U.S., 133 S.Ct. 2151 (2013). U.S. v. Duncan, 413 F.3d 680 (7th Cir. 2005).
7th Circuit makes limited remand for district court to determine whether it would impose same sentence under advisory guidelines. (330) Defendant argued that the district court violated his Sixth Amendment rights when it determined that the gun he possessed was stolen and enhanced his offense level under § 2K2.1(b) (4). However, the error was not in consulting the guidelines and making findings to the pertinent guidelines factors, but in applying the guidelines in a mandatory fashion. See U.S. v. Booker, 543 U.S. 220 (2005). Since defendant did not raise a Sixth Amendment issue below, the Seventh Circuit reviewed for plain error. Following its decision in U.S. v. Paladino, 401 F.3d 471 (7th Cir. 2005), the panel remanded for the limited purpose of determining whether the district court would be inclined to sentence to the same or a longer term knowing that it had broader discretion after Booker. U.S. v. Williams, 410 F.3d 397 (7th Cir. 2005).
7th Circuit holds that court did not plainly err in making findings on defendant’s criminal history. (330) Defendant’s criminal history affected the calculation of his sentence range in two ways. First, the finding that his prior convictions were for crimes of violence resulted in a higher offense level under § 2K2.1(a)(2). Second, the nature and extent of his prior criminal history placed him in the highest criminal history category. Defendant argued that unless admitted by a defendant, the fact and nature of any prior convictions that expose him to a higher penalty must be determined by a jury rather than the sentencing judge. The Seventh Circuit disagreed, noting that the Supreme Court has so far excluded a defendant’s criminal history from the range of facts that must, if not admitted, be proven to a jury before the defendant is subject to increased penalties. See Almendarez-Torres v. U.S., 523 U.S. 224 (1998). The Court’s opinions in Apprendi, Blakely and Booker have left the holding of Almendarez-Torres undisturbed. The district court did not plainly err in making findings with respect to defendant’s criminal history. U.S. v. Williams, 410 F.3d 397 (7th Cir. 2005).
7th Circuit holds that defendant not entitled to have jury determine whether prior conviction was crime of violence. (330) A jury convicted defendant of being a felon in possession of a firearm. The district court found that his prior robbery conviction was a crime of violence, and he received an enhanced offense level under § 2K2.1(a)(4) (A). Defendant argued that under U.S. v. Booker, 543 U.S. 220 (2005), the jury should have evaluated the nature of his prior conviction. The Seventh Circuit found Booker inapplicable. First, Booker excludes any fact “other than a prior conviction.” Criminal history is governed by Almendarez-Torres v. U.S., 5234 U.S. 224 (1998), Moreover, even if the court were to overturn Almendarez-Torres and eliminate the prior conviction exception, defendant could not benefit. He waived any claim under the Sixth Amendment when he took advantage of other caselaw to prevent the jury from learning details about his prior conviction. See Old Chief v. U.S., 519 U.S. 172 (1997). A defendant cannot insist during trial that the jury be kept in ignorance yet demand after its end that he receive a lower sentence because the jury did not pass on the very issue that had been withheld at his request. U.S. v. Lewis, 405 F.3d 511 (7th Cir. 2005).
7th Circuit holds that court erred in evaluating nature of prior conviction rather than relying on elements of offense. (330) Defendant was convicted of being a felon in possession of a firearm. The district court found that his prior robbery conviction was a crime of violence, and imposed an enhanced offense level under § 2K2.1 (a)(4)(A). Instead of evaluating the elements of robbery under state law, or the risks posed by robberies as a class, the district court focused on defendant’s conduct, as outlined in the affidavits in the earlier prosecution. The Seventh Circuit remanded for resentencing. A judge is “limited to examining the statutory definition, charging documents, written plea agreement, transcript of plea colloquy, and any explicit factual finding made by the trial judge to which the defendant assented.” Shepard v. U.S., 125 S.Ct. 1254, 1257 (2005). Affidavits attached to an information as part of Indiana practice are not part of the “charging document” for this purpose. The affidavit is just a police report under oath, and Shepard holds that police reports may not be considered. When resentencing defendant, the judge will treat the guidelines as advisory. U.S. v. Lewis, 405 F.3d 511 (7th Cir. 2005).
7th Circuit holds that Residential Entry under Indiana law is crime of violence. (330) The district court found that defendant’s prior conviction for Residential Entry under Indiana law constituted “a crime of violence” under § 4B1.2, which resulted in an enhanced offense level under § 2K2.1. The Indiana statute says that “a person who knowingly or intentionally breaks and enters the dwelling of another person commits residential entry, a Class D felony.” The Seventh Circuit held that Residential Entry is a crime of violence because of the serious risk that an occupant could be injured. The offense is a lesser-included offense of burglary. Thus, it is an offense that “by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” U.S. v. Gardner, 397 F.3d 1021 (7th Cir. 2005).
7th Circuit holds that Amendment 599 did not incorporate Amendment 489 procedures. (330) Defendants were convicted of bank robbery and using and carrying a firearm to commit a crime of violence, 18 U.S.C. § 924(c). The guideline in effect at the time of their conviction prohibited courts from applying specific offense characteristics “for the possession, use, or discharge of a firearm” to the “underlying offense.” Note 2 to § 2K2.4. However, an alternative formula could be used where the maximum of the guideline range without the firearm enhancements plus the § 924(c) term was less than the maximum of the range that would apply to the underlying offense with the firearm enhancements. Defendants were sentenced under the alternative formula. After sentencing, Amendment 489 became effective and provided yet another formula for calculating a sentence in such a situation. Amendment 489 was not made retroactive, so by its terms, it did not apply to defendants. However, in November 2000, Amendment 599 amended the commentary to § 2K2.4, and was made retroactive. Defendants argued that Amendment 599 implicitly incorporated the methodology set forth in amendment 489, and that their sentences should be recalculated within the framework established by Amendment 489. The Fifth Circuit disagreed. Amendment 599 simply clarified when a defendant should receive weapon enhancements for conduct other than the “underlying offense” when also convicted under § 924(c), and did not incorporate the procedures of Amendment 489. U.S. v. Powell, 354 F.3d 362 (5th Cir. 2003).
7th Circuit holds that consecutive sentences were proper under Amendment 599. (330) Defendant pled guilty to conspiracy to commit extortion and using and carrying a firearm in relation to a crime of violence, in violation of 18 U.S.C. § 924(c). The district court imposed a 63-month sentence for the extortion conviction and a consecutive 60-month sentence for the firearm conviction, to run consecutively. Defendant filed a motion pursuant to 18 U.S.C. § 3582(c)(2) to modify his sentence based on Amendment 599. The Seventh Circuit upheld the consecutive sentences as consistent with Amendment 599. Under § 2K2.4, as amended by Amendment 599, when a consecutive § 924(c) sentence is imposed in conjunction with a sentence for an underlying offense, the sentencing court should not apply any specific offense characteristic for possession, brandishing or use of a firearm. Amendment 599 merely explains what conduct qualifies as the “underlying offense” and clarifies that it includes relevant conduct. Defendant actually received the benefit of Amendment 599. The § 924(c) charge identified kidnapping as the underlying offense. Defendant was not convicted of kidnapping but of extortion. However, because the extortion was closely related to the kidnapping under the facts of this case, Amendment 599 made it clear that it would have been improper for the court to apply an enhancement to the extortion sentence for possession or use of a firearm. U.S. v. Alcala, 352 F.3d 1153 (7th Cir. 2003).
7th Circuit relies on defendant’s admissions to support increase for possessing gun in connection with sale of marijuana. (330) Defendant was convicted of being a felon in possession of a firearm, and received a four-level increase under § 2K2.1(b)(5) for possessing a firearm in connection with the sale of marijuana. Defendant signed a statement admitting that he smoked marijuana and sometimes obtained enough “to make a little money to pay for rent and still have enough to get high myself.” He also admitted that his last legitimate job was three years before his arrest. In the same statement, he acknowledged that he kept a handgun for protection and had it with him numerous times. Defendant was arrested in the basement of his brother’s house with trace amounts of marijuana and a marijuana grow book. The Seventh Circuit affirmed the increase, since this evidence supported a finding that defendant sold marijuana using his gun for protection. Although there was no direct evidence showing that defendant personally was engaged in drug sales, it was not clearly erroneous for the judge to conclude that defendant’s incriminating statements should be credited. U.S. v. Morris, 349 F.3d 1009 (7th Cir. 2003).
7th Circuit holds that pointing gun at police officer constituted separate offense from possession offense. (330) When undercover officers attempted to arrest defendant, defendant ran into a bedroom, grabbed a gun, and pointed it at the officers. Defendant pled guilty to one count of possession of a firearm by a felon. The district court applied a four-level increase under § 2K2.1(b)(5) for using the firearm in connection with another felony, pointing the firearm at an arresting officer. The Seventh Circuit affirmed, holding that defendant committed “another felony offense” when he pointed his gun at the arresting officers. His offense of conviction, because he was a felon, involved mere possession of the firearm. When he pointed his gun at the arresting officers, he was actually using the weapon. U.S. v. Purifoy, 326 F.3d 879 (7th Cir. 2003).
7th Circuit holds that armed robbery four days before arrest was relevant conduct to felon in possession charge. (330) While charges were pending against defendant, he was released to a halfway house. On September 30, was involved in an armed robbery that resulted in the death of a 16-year old boy. He was arrested October 4 in possession of a semi-automatic handgun, and admitted that he had possessed that same gun during the September 30th robbery. He pled guilty to a felon in possession count based on the October 4th arrest. Guideline § 2K2.1(C)(1) provides that if the defendant used or possessed a firearm in connection with the commission of another offense, and death resulted, the court should apply the most analogous homicide guideline. The district court found the homicide cross-reference applicable because defendant had been arrested for possessing the same firearm he had previously used in the armed robbery/felony-murder incident four days earlier. The Seventh Circuit found this proper, ruling that the armed robbery/felony-murder was relevant conduct to the felon in possession charge. The robbery not only occurred “during the commission of” the felon in possession offense, but defendant’s status as a felon in possession was a factor enabling him to undertake the armed robbery. Moreover, “death resulted” from defendant’s use and possession of the firearm. His actions on September 30th were reckless and involved a foreseeable risk of death. U.S. v. Jones, 313 F.3d 1019 (7th Cir. 2002).
7th Circuit holds that escape from halfway house qualified as crime of violence. (330) Defendant pled guilty to a variety of firearms offenses. At sentencing, the district court found that defendant was subject to an elevated offense level under § 2K2.1(a)(4)(A) because he had previously been convicted of a crime of violence, a 1997 escape from a halfway house. The § 2K2.1 commentary notes that the term “crime of violence” has the meaning given that term in U.S.S.G. § 4B1.2(a). In U.S. v. Franklin, 302 F.3d 722 (7th Cir. 2002), the Seventh Circuit held that the crime of escape is a violent felony under 18 U.S.C. § 924(e) – a provision with language identical to that of § 4B1.2(a) because escape involves a “serious potential risk of physical injury to another.” Relying on Franklin, the Seventh Circuit held that the crime of escape is categorically a crime of violence because it involves “a serious potential risk of physical injury to another.” Defendant’s prior escape conviction, resulting from his failure to report back to a halfway house, thus constituted a crime of violence. U.S. v. Bryant, 310 F.3d 550 (7th Cir. 2002).
7th Circuit holds that gun store employee had reason to believe that guns would be used in felony. (330) Defendant, an employee at a federally-licensed gun store, was convicted of a variety of firearms charges in connection with his sale of guns to straw purchasers. The Seventh Circuit affirmed a § 2K2.1(b)(5) for transferring a firearm with “reason to believe” that one or more of the guns he sold to undercover agents “would be used in the commission of a felony.” Officer Kelly told defendant that he needed to buy a Tec 9 with which to shoot Czaja. Officer Korzeniewski told him that he needed to buy guns in order to get even with the person who ratted him out to the police. He also told defendant that he wanted identical guns “so that when [he draws] down, they would know it’s [him], they’ll know [he] mean[s] business.” Finally, he asked defendant “if I point the gun at somebody’s stomach, it will hit them in the chest?” These comments clearly gave defendant “reason to believe” that the undercover police officers would commit felonies with the guns that they purchased. U.S. v. Inglese, 282 F.3d 528 (7th Cir. 2002).
7th Circuit finds insufficient evidence to support cross-reference to murder guideline. (330) Defendant was convicted of being a felon in possession of a firearm. Section 2K2.1 states that if the defendant used or possessed any firearm in connection with the commission of another offense, and death resulted, the court must cross-reference the “most analogous offense guideline” from the homicide guidelines. At sentencing, the government tried to connect defendant to the murder of the firearms’ owner, Leal. The night before defendant pawned Leal’s gun, Leal was shot to death in the car that defendant was found driving. A bullet hole was found in the passenger door of the car, and Leal’s blood was found on the driver’s seat of the car, on the pavement of defendant’s driveway, and on defendant’s shirt. The district court used the cross-reference to sentence defendant under § 2A1.1, the first-degree murder guideline, finding that whether defendant pulled the trigger or not, “it’s pretty clear that he was involved in the killing.” The Seventh Circuit held that the use of the cross-reference constituted plain error, since the district court did not make any finding that defendant’s conduct led to Leal’s death. All the court found was that defendant was “involved” in Leal’s murder. Moreover, even if Leal’s death resulted from defendant’s possession of the firearm, the court’s application of the first-degree murder guideline as opposed to a homicide offense with a lesser culpability was also plain error. U.S. v. Thomas, 280 F.3d 1149 (7th Cir. 2002).
7th Circuit holds that firearm possessed within four weeks of other firearm was relevant conduct. (330) On April 10, 1999, police investigating an armed robbery patted down defendant and arrested him after discovering a .38 caliber revolver. On May 9, 1999, police dispersing guests from a nightclub observed defendant remove an assault rifle from the trunk of a car. He was charged with two counts of being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1). He pled guilty to Count I, which related to the first incident. The Seventh Circuit held that the district court acted properly in considering the charges contained in Count II, which related to the second incident, as relevant conduct. “[T]he contemporaneous, or nearly contemporaneous, possession of uncharged firearms is … relevant conduct in the context of a felon-in-possession prosecution.” U.S. v. Santoro, 159 F.3d 318 (7th Cir. 1998). Defendant twice possessed firearms about four weeks apart. This conduct unequivocally fell within the relevant conduct definition announced in Santoro. U.S. v. Wallace, 280 F.3d 781 (7th Cir. 2002).
7th Circuit reverses where shooting was not relevant conduct in escape. (330) Defendant was arrested after he ran from a crack house with a handgun. He was taken to a police station, where he escaped. A week later, while still on the lam, he was involved in a shooting and was arrested later that day hiding under a bed where officers found nine zip-lock bags of crack cocaine. He pled guilty to being a drug user in possession of a firearm and escape, in return for dismissal of the shooting and crack cocaine charges arising out of the later incidents. At sentencing, the judge found that the later incidents were “relevant conduct” for the escape and the original firearms charge and used the cross-reference in § 2K2.1(c) to sentence defendant under the attempted murder guideline § 2A2.1. On appeal, the Seventh Circuit reversed, holding that the shooting was not relevant conduct for the escape and in any event, the guideline for escape does not include a cross-reference which would allow sentencing on the basis of attempted murder. There was “no principled way to bridge the gap between the firearms charge and the shooting.” The shooting was not part of an attempt to escape detection, nor was defendant trying to silence someone who was planning to inform the authorities of his whereabouts. In fact, as defendant pointed out, the shooting simply called attention to defendant, and he was quickly apprehended after he pulled the trigger. U.S. v. Taylor, 272 F.3d 980 (7th Cir. 2001).
7th Circuit agrees that white supremacist group intended to use guns in another felony. (330) Defendant and others formed a white supremacist group that intended to raise money by robbing banks and armored cars. Defendant was convicted of firearms charges based on numerous weapons seized by the FBI, including an AR-15 rifle that had been converted to a fully-automatic rifle. The district court applied a § 2K2.1(b)(5) increase for possessing a firearm with knowledge or reason to believe that it would be used in connection with another felony offense. The court adopted the PSR’s finding that members of the conspiracy intended to use the converted AR-15 rifle as a prototype to convert other weapons, and that the AR-15 was part of a stockpile intended for use in planned acts of violence. Defendant argued that this finding was inconsistent with the court’s finding that the government did not prove that “steps were taken to implement [] hits” against various specific targets. The Seventh Circuit affirmed the increase, ruling that the two findings were not mutually exclusive. The PSR concluded only that defendant possessed the converted AR-15 and other weapons with the intent to use them in connection with other planned felony offenses. It did not go on to identify an exclusive list of enemy targets. Thus the court’s conclusion that the group did not attempt to carry out such hits did not create any tension with the rest of the report. Moreover, there was ample evidence that the group planned to use their weapons to rob banks. U.S. v. McGiffen, 267 F.3d 581 (7th Cir. 2001).
7th Circuit says upward departure did not impermissibly double count use of firearm. (330) Defendant argued that the district court impermissibly double counted his use of a firearm by sentencing him to a seven-year consecutive sentence under 18 U.S.C. § 924(c) and USSG § 2K2.4(a), and departing upward from the guideline range to take into account the greater sentence he would have received had he not been convicted under § 924(c). The Seventh Circuit found no error. Sentencing courts may depart upward to ensure that defendants convicted under both § 924(c) and the underlying crime of violence do not receive a more lenient sentence by virtue of the § 924(c) conviction than if they had been convicted of the underlying offense alone. See, e.g. U.S. v. Ledford, 218 F.3d 684 (7th Cir. 2000). If defendant had not been convicted under § 924(c), the district court could have increase his base offense level by five under § 2B3.1(b)(2)(C), yielding a total offense level of 37 and a sentencing range of 360 months to life. See USSG § 2K2.4, Note 2. The district court’s upward departure placed defendant in the same sentencing range as if he had been convicted of the underlying offense alone. Nothing was counted twice. U.S. v. Banks-Giombetti, 245 F.3d 949 (7th Cir. 2001).
7th Circuit says § 851 information need not be filed for drug offense to be “another felony offense.” (330) Guideline § 2K2.1(b)(5) provides for a four-level increase if defendant used or possessed a firearm in connection with “another felony offense.” Defendant argued that under 21 U.S.C. § 844(a), possession of marijuana is punishable by no more than one year imprisonment, and therefore his drug possession constituted a misdemeanor. Although § 844(a) contains a provision that increases the maximum punishment beyond one year for defendants with prior drug convictions, he asserted that his offense did not count as a felony because prior convictions cannot increase a sentence beyond the misdemeanor level unless the government files an § 851 information listing those prior convictions. The Seventh Circuit rejected this approach, ruling that no § 851 information needed to be filed for defendant’s marijuana offense to constitute “another felony offense” under § 2K2.1(b)(5). So long as an offense is punishable by more than one year of imprisonment and is done in connection with the use or possession of a firearm, that offense can constitute “another felony offense.” It does not matter whether the government brought a charge or obtained a conviction on that offense. Because the charge need not be brought before allowing an adjustment under § 2K2.1(b)(5), a § 851 information need not be filed. U.S. v. Irby, 240 F.3d 597 (7th Cir. 2001).
7th Circuit applies increase where defendant’s gun was used to shoot at victims. (330) Defendant, a convicted felon, used a “straw” purchaser to buy at least six handguns. During the same time period, the brother of defendant’s estranged girlfriend reported that his residence had been fired upon. Cartridge casing found at the scene were traced to one of defendant’s guns. Two weeks later, the mother of the girlfriend was shot at as well. She reported to police that shortly before the shooting, she had seen defendant and some friends in the area. Cartridge casings found at the scene matched the ones from the earlier shooting. Police later found the weapon in a car in which defendant was a passenger. Although “troubled” by the government’s limited evidence, the Seventh Circuit still upheld a § 2K2.1(b)(5) increase for possessing a gun in connection with another felony, or transferring a gun with knowledge, intent or reason to believe that it would be used in connection with another felony. Defendant admitted purchasing the gun that was used to shoot at his girlfriend’s family, and there was “bad blood” between defendant and the family. Even if defendant did sell the gun to a friend, he did so with least reason to believe that it would be used to shoot at his girlfriend’s family. The increase was proper regardless of who fired the shots. U.S. v. Charles, 238 F.3d 916 (7th Cir. 2001).
7th Circuit says defendant reasonably knew guns he sold to street gang would be used in another felony. (330) Section 2K2.1(b)(5) authorizes a five-level increase for firearms offenses if the defendant “possessed or transferred any firearm or ammunition with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony offense.” Defendant argued that his mere transfer of multiple firearms to the Gangster Disciples, a street gang, was insufficient for the enhancement and that the government had to prove that he had “reason to believe” that the guns would be used in a specific offense in the future. The Seventh Circuit disagreed, concluding that defendant had good “reason to believe” that the firearms he purchased and re-sold to members of the Gangster Disciples would in all probability be used in connection with felonious activities. The Gangster Disciples “are an infamous nation-wide criminal organization based in Chicago, Illinois, whose far-ranging illegal activities include the sale of illicit drugs under terms often negotiated and enforced, literally, at gunpoint.” Judges and the public are aware of the connection between criminal violence and street gangs. It would be naïve for the court to conclude that defendant did not believe that the guns he supplied to the Gangster Disciples would be used in future crimes. U.S. v. Jemison, 237 F.3d 911 (7th Cir. 2001).
7th Circuit upholds increase for possession of automatic weapon. (330) Defendant, convicted of being a felon in possession of a firearm, received a § 2K2.1(a) enhancement based on his possession of an automatic weapon. The Seventh Circuit found the testimony of defendant’s wife and son sufficient to support the enhancement. Although defendant claimed that his wife and son were not credible because the wife was estranged from him and was granted immunity from prosecution, this was not enough to overturn the district court’s credibility determination. Although defendant claimed that the witnesses did not know what an automatic weapon was, both witnesses testified that defendant possessed a weapon that could shoot multiple bullets with one pull of the trigger. The son testified that defendant had told him the difference between a semi-automatic weapon and a fully automatic weapon. The relevant conduct had sufficient similarity, regularity and temporal proximity to the offense of conviction. Witnesses testified to the existence of the gun, as part of defendant’s extensive and regular gun collection, just prior to the police search. U.S. v. Ofcky, 237 F.3d 904 (7th Cir. 2001).
7th Circuit holds that possession of sawed-off shotgun is a crime of violence. (330) Defendant was convicted of being a felon in possession of a firearm. Guideline § 2K2.1(a)(4)(A) provides for a higher offense level if the defendant has a prior felony conviction that is either a crime of violence or a controlled substance offense. The district court found that defendant’s possession of a short-barreled shotgun was a crime of violence because it “involve[d] conduct that presents a serious potential risk of physical injury to another.” See Note 5 to § 4B1.2. The Seventh Circuit agreed. Although the guidelines explicitly state that being a felon in possession of a firearm is not a crime of violence, see Note 1 to § 4B1.2, this did not establish that all possession offenses were not crimes of violence. The reason defendant’s conviction for possession of a sawed-off shotgun counted as a crime of violence was because of the type of weapon involved. Possession of a sawed-off shotgun, by the very nature of the weapon, always creates a serious potential risk of physical injury to another. The fact that federal law provides for the legal registration of sawed-off shotguns actually supports this holding. Most firearms do not have to be registered – the only weapons that must be registered are those that Congress found to be inherently dangerous. U.S. v. Brazeau, 237 F.3d 625 (7th Cir. 2001).
7th Circuit holds that defendant forfeited, rather than waived, self-defense claim. (330) The district court enhanced defendant’s sentence under § 2K2.1(b)(5) for possessing a gun in connection with another felony. The court found that defendant’s conduct in waving the gun at an unknown man at McDonald’s amounted to felony criminal recklessness under Indiana law. At sentencing, defendant argued only that a witness to the incident was lying and that the incident at McDonald’s did not occur. For the first time on appeal, defendant argued that he did not violate the Indiana statute because he was acting in self-defense. The government contended that he waived the argument. The Seventh Circuit held that defendant forfeited the argument, rather than waived it. Waiver is the intentional relinquishment of a known right. Forfeiture is the failure to make a timely assertion of a right. While waived errors are unreviewable, forfeited errors are reviewed under the plain error standard. However, this did not help defendant, because there was no plain error. The district court examined two versions of the evidence presented at sentencing and concluded that the witness’s version of events was more credible than defendant’s. Defendant did not point to any evidence that suggested that the court erred in its consideration of the evidence. U.S. v. Perry, 223 F.3d 431 (7th Cir. 2000).
7th Circuit upholds § 924(c) sentence for use of a gun and enhancement for use of a bomb during robbery. (330) Defendant argued that the district court erred when it imposed a five-year consecutive sentence under 18 U.S.C. § 924(c) for his use of a gun during the robbery and a § 2B3.1(b)(2)(E) enhancement for his use of a fake bomb during the same robbery. Although the guidelines prohibit a sentencing court fr