Firearm Offenses

The Sixth Circuit vacated a defendant’s sentence. The defendant had received two sentences for possession of a firearm by a convicted felon and by a domestic violence misdemeanant. The Court held that these two convicted should have been merged for sentencing since they were based on one act of possession.

The Sixth Circuit reversed a district court’s denial of a habeas petition asserting that the defendant was no longer an armed career criminal under Johnson v. US. A conviction for burglary under Tennessee law is not categorically a crime of violence where a defendant can commit the crime after entering a dwelling or building lawfully.

The First Circuit vacated a defendant’s sentence for possession of a firearm by an unlawful drug user. The Court held that the district court committed plain error where it varied upwards from the defendant’s Guidelines range based on the fact that the defendant possessed a machine gun and its concerns with violent crimes in Puerto Rico. The Court held that the type of firearm possessed was already covered by the Guidelines, and thus could not be the basis for an upwards variance, and the district court failed to tie its concerns with crime in Puerto Rico to this specific defendant’s conduct.

The First Circuit vacated a defendant’s sentence for possession of a machine gun. Reviewing for procedural reasonableness, the Court held that the district court failed to adequately explain its basis for its 12-month upwards variance and that the only reason cited by the court, the fact that the machine gun was dangerous, was already covered by the Guidelines and thus an improper basis for the variance.

The Fourth Circuit reversed convictions for several defendants convicted of RICO, VICAR, and carrying a firearm during crimes of violence. In a complex opinion, the Court held that RICO conspiracy is a divisible offense requiring the modified categorical approach to determine if the offense is a crime of violence. The Court concluded that a RICO conspiracy, even an “aggravated” one, is not a crime of violence under 924(c). The Court also reversed the defendants’ VICAR convictions where the jury instructions referred to the wrong state law. Finally, the Court reversed one of the VICAR and 924(c) counts predicated on attempted murder where the defendants only took a preparatory act, not an overt act, in driving around looking for the victim.

The Ninth Circuit affirmed a defendant’s conviction for possession of a firearm by a nonimmigrant visa holder. The Court held that there was sufficient evidence that the defendant knew his visa possessed the characteristics of a non-immigrant visa where it explicitly authorized a temporary stay for work purposes.

The Ninth Circuit affirmed a defendant’s conviction under 18 USC 922(g)(4) for possession of a firearm by a person previously committed to a mental institution. The Court held that the defendant’s conviction did not require evidence that his prior commitment was based on a finding that he was dangerous, and the Court rejected his constitutional challenge to 922(g)(4) after applying intermediate scrutiny and holding that his Second Amendment rights were not impermissibly restricted.

The Eleventh Circuit affirmed a defendant’s ACCA-enhanced sentence for possession of a firearm as a convicted felon. The defendant had previously pleaded guilty to several different felony offenses on the same day, but there was no indication in the indictment when these offenses occurred or whether they were related, save for the State’s statements during the colloquy regarding a factual basis. The Eleventh Circuit held that the sentencing court here properly relied on those statements because the defendant had implicitly confirmed the substance of those statements by failing to object or add facts.

The Eleventh Circuit affirmed a defendant’s ACCA-enhanced sentence for possession of a firearm by a convicted felon. The Court held that it was plain error for the district court to accept the defendant’s guilty plea where the defendant was not advised that the Government would have to prove his knowledge of his felon status, but the defendant was not prejudiced where the record showed the Government would have been able to prove his knowledge at trial. The Court also held that a prior conviction for burglary under Georgia law is a predicate “violent felony” under the ACCA, and it held that the district court properly applied the obstruction enhancement and denied the defendant acceptance of responsibility credit based on the defendant’s pre-indictment conduct.

The Eleventh Circuit affirmed the defendants’ convictions for drug and firearm offenses in a case involving a “reverse sting police corruption case.” The defendants were two officers who worked with other corrupt officers to provide armed protection to undercover agents acting as drug dealers. Among other things, the Court held that the evidence was sufficient to convict them notwithstanding their entrapment defenses, the trial court did not plainly err in failing to inform the jury that it was entitled to a “read-back” of one of the defendant’s trial testimony, and the defendants failed to establish a prima facie case of a Batson violation.