Firearm Offenses

The Fifth Circuit reversed a defendant’s conviction for possession of a firearm by someone adjudicated as a mental defective or who has been committed to a mental institution. The trial court erroneously instructed the jury that it could find the defendant guilty based on finding he was either adjudicated a mental defective OR had previously been committed, though the indictment only alleged the former and not the latter.

The Third Circuit vacated a defendant’s sentence after holding the district court improperly enhanced the defendant’s offense level under the Guidelines based on the defendant’s prior conviction for conspiracy to commit second degree murder. The plain text of the relevant Guidelines provision does not include “conspiracy” under the definition of “crime of violence,” and courts may not rely on commentary to increase a defendant’s Guidelines range when the commentary goes beyond the plain text of the Guidelines.

The Tenth Circuit reversed a district court’s dismissal of attempted bank robbery charges under 18 USC 2113 where the district court found that the defendant’s attempt to hold up two victims at gunpoint and force them to withdraw money from an ATM did not amount to an attempted “bank robbery” since the defendant would be robbing them, not the bank. Deepening a circuit split between the Fifth Circuit and Seventh Circuit, the Tenth Circuit reversed, concluding that “using force to induce a bank customer to withdraw money from an ATM is federal bank robbery.”

The Eleventh Circuit reversed the district court’s denial of a defendant’s motion to vacate their sentence under 28 USC 2255. The Court held that the district court erred in instructing the jury on aiding and abetting in an unlawful possession of a firearm case where the government did not present any evidence that the defendant knew his co-defendant was prohibited from possessing firearms. The Court also held that Rehaif is retroactive to cases on collateral review and discussed the standard for procedural default under 2255 at length.

The First Circuit vacated a defendant’s 46-month sentence for various firearm offenses, holding that the district court erred in finding that the defendant was an “unlawful drug user” at the time of his offense. The enhancement was based on the defendant’s statement to probation, during the drafting of his PSR, that he smoked marijuana daily in the years leading up to his arrest. The Court held that this statement failed to establish the temporal nexus for the defendant’s drug use and his possession of a firearm, especially since the defendant had also told probation that he sometimes went “weeks” without smoking marijuana, and thus the district court clearly erred in relying on it for the enhancement.

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.