Firearm Offenses

The Sixth Circuit vacated a defendant’s sentence for bank robbery, holding that the district court erred in applying an enhancement for using physical restraint. The Court held that ordering tellers to the ground, and their accompanying compliance, without more, was insufficient to constitute “physical restraint.”

The Eleventh Circuit vacated a defendant’s sentence that had been enhanced under the ACCA after the district court held that the defendant’s prior conviction was a “serious drug offense.” However, the statute under which the defendant was previously convicted under state law also prohibited ioflupane, which was not a controlled substance at the time of the defendant’s federal prosecution. Citing fair notice and due process concerns, the Court concluded that sentencing courts must “apply the version of the Controlled Substance Act Schedules in place when the defendant committed the federal firearm-possession offense for which he is being sentenced,” as opposed to the schedules in effect when the defendant is convicted of his predicate state offenses.

In a 7-2 decision, the Supreme Court held that attempted Hobbs Act robbery does not qualify as a “crime of violence” under 924(c) “because no element of the offense requires proof that the defendant used, attempted to use, or threatened to use force.” Applying the categorical approach, the Court held that a generic defendant could be convicted of attempted Hobbs Act robbery without using or threatening force based simply on their “intent” and their taking a non-forceful “substantial step.”

Earlier this week, the Washington Post reported that a group of democratic and republican senators had agreed on the framework of an agreement for legislation aimed at reducing gun violence in the wake of mass shootings in Buffalo and Uvalde. The potential legislation would push states to enact “red flag” laws, require background checks for juvenile and mental health records, and create new federal criminal offenses for gun trafficking and straw purchases. The news comes as AG Garland and the DOJ’s task forces have increased enforcement actions based on unlawful firearm purchasing and distribution.

In a matter of first impression, the Eleventh Circuit affirmed a defendant’s sentence for illegally exporting firearms. The Court concluded that the lower offense level under USSG 2M5.2(a)(2) did not apply since the defendant’s offense involved more than 2 firearms, where the defendant had exported enough firearm parts to assemble two guns and enough spare parts to service additional firearms.

The Ninth Circuit reversed a district court’s denial of an inmate’s motion to vacate under 28 USC 2255. The Court held that the inmate had not pleaded guilty knowingly where he was not informed of the mens rea for unlawful firearm possession under Rehaif, despite evidence that he had previously been sentenced to prison for over a year and had been previously convicted of several felonies.

The Eleventh Circuit rejected a defendant’s constitutional challenge to his conviction for possession of a firearm by an unlawful alien. The Court held that the Second Amendment did not provide a right for illegal aliens to possess firearms since that right did not exist at the time of the amendment’s ratification.

The Eleventh Circuit affirmed a defendant’s ACCA-enhanced sentence. While the defendant’s three prior convictions under Alabama law were punishable by less than ten years under Alabama’s sentencing guidelines, the Court relied on the statutory maximum of over 10 years for those convictions in holding that they were “serious drug offenses” under the ACCA.

The Fifth Circuit vacated a defendant’s sentence after holding that the district court improperly enhanced the sentence under 18 USC 3559(c). The Court concluded that the defendant’s prior convictions for aggravated assault under Texas law were not convictions for a “serious violent felony” under 3559(c) because a defendant need only act “recklessly” to be convicted.

The Fifth Circuit reversed a defendant’s conviction for carrying a firearm during a crime of violence or drug trafficking crime under 924(c). The trial court had erroneously instructedhe jury that it could find the defendants guilty of those charges if they used or carried a firearm in relation to either the “crime of violence” charged by their RICO conspiracy count or the drug trafficking crime charged, but RICO is not a “crime of violence” under Fifth Circuit precedent.