Firearm Offenses

Earlier this month, Attorney General Merrick Garland spoke about the rise of gun-related deaths in the U.S. and the federal government’s strategy to reduce them. His remarks suggest that criminal prosecutions will play a central part to that strategy. The AG’s remarks about keeping guns “out of the hands of criminals” suggest an increase in […]

The Eleventh Circuit affirmed a pair of Hobbs Act robbery convictions, holding that 1) erroneous jury instructions regarding two predicate offenses under 924(c) were harmless where the offenses were inextricably entwined and one was properly instructed as a predicate offense; 2) defendant’s could not show entrapment or outrageous government conduct when the government set up a fake safe house and had an informant suggest to the defendant that they should rob the safe house; and 3) the defendants were not entitled to discovery for selective prosecution based on a showing that a racial group was disproportionately prosecuted unless they could show evidence of prosecution of similarly situated members of another racial group.

The Eleventh Circuit affirmed a defendant’s conviction after he challenged a search warrant that led to his arrest and conviction for marijuana distribution and unlawful possession of a firearm. The Court held that, even if the search warrant was not supported by probable cause based on officers finding small quantities of marijuana in the defendant’s trash, the good faith exception applied. The Court also reiterated that a failure to allege the knowledge element for a 922(g) charge under Rehaif does not deprive the district court of subject matter jurisdiction.

The Ninth Circuit affirmed a defendant’s conviction for unlawful possession of a firearm by a nonimmigrant visa holder, but held that the Government must prove more than merely the fact that a defendant’s visa is labeled as a nonimmigrant visa. The Government must show that the defendant knew his visa’s classification or knew the offending characteristics of the visa that makes his firearm possession unlawful.

The Ninth Circuit affirmed a district court’s order suppressing a defendant’s statements under Miranda. The officers had interrogated the defendant without advising him of his Miranda rights after they approached him in marked cars and separated him from his seven-year-old son. However, the Court remanded for the district court to determine if the defendant’s subsequent consent to search his vehicle was voluntary.

The Eleventh Circuit affirmed a defendant’s conviction for possession of a firearm by a person convicted of a misdemeanor involving domestic violence, rejecting his Rehaif challenge. The Court held that there was plain error in the indictment failing to allege the element of knowledge and the lack of evidence proving that knowledge, but held that the defendant’s substantial rights were not affected because there was sufficient evidence that he knew of his prohibited status as a domestic violence misdemeanant.

Sitting en banc, the Third Circuit held that inchoate offenses are not included in the definition of “controlled substance offenses” under the career offender guidelines because commentary to the Guidelines is not binding when it is inconsistent with or broader than the text of the Guidelines. The Court also held that a court reviewing a defendant’s Rehaif challenge under plain error review is limited to considering the record presented at trial, not the whole record, and a new trial is warranted where there is no evidence presented to a jury regarding the defendant’s knowledge of his prior felony.

The Ninth Circuit affirmed the defendant’s conviction for being a felon in possession of a firearm. The Court held that there was reasonable suspicion to detain and search the defendant based solely on the officer believing he had a concealed firearm (illegal in California) after noticing a “very large and obvious bulge” under the defendant’s sweatshirt. The Court also discussed other kinds of “suggestive bulges” that can give rise to reasonable suspicion, such as when a defendant is hiding drugs.

The Eleventh Circuit affirmed the convictions and sentences of two defendants for possession of a firearm by convicted felon, holding that neither met their burden of showing that plain error under Rehaif affected their substantial rights. The Court noted that “most people convicted of a felony know that they are felons” and that the defendant had failed to meet his burden despite showing he had a low IQ and had never served more than a year in jail or prison. The Court distinguished the case from pre-Rehaif cases where a defendant had litigated their felon status or maintained that they were allowed to possess a firearm.

The Eleventh Circuit affirmed denial of a defendant’s motion to suppress where the defendant had been apprehended by law enforcement after fleeing upon their approach. The Court held that the officers had reasonable suspicion to detain the defendant where they were responding to a 911 call at 3AM in a high-crime area and the caller had noted that two men were arguing, one with a gun, and there could be shooting at any time.