Firearm Offenses

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.

The Fourth Circuit held that attempted Hobbs Act robbery, like conspiracy to commit Hobbs Act robbery, does not constitute a “crime of violence” under 924(c) because under the categorical approach an attempt to commit the offense does not invariably require use of force or threat of force.

The Eleventh Circuit affirmed a defendant’s conviction of receiving and possessing an unregistered firearm silencer, holding that the National Firearm Act falls within Congress’ power to tax since penalties intended to aid in the collection of firearm transfer taxes are constitutional. Based on precedent, the Court foreclosed challenges that transfer taxes and penalties apply to silencers and penalties used to aid collection of firearm transfer taxes apply despite the recipient not being obligated to pay the transfer tax themself. The Court also held there could be no plain error if there is no precedent on questions applying fee jurisprudence in the Second Amendment context and whether silencers were “Arms” or “typically possessed by law-abiding citizens for lawful purposes” under the Second Amendment.

October 13, 2020. The Department of Justice announced today that it has charged over 14,200 people with various kinds of firearms offenses in 2020, with potentially more to come.The U.S. Attorney’s Office in Atlanta announced that its office brought in at least 336 of the 14,200 firearms cases, and the charges include possession of a firearm by someone in a prohibited class (such as felon, illegal alien, or drug user), possession of a firearm in furtherance of a violent crime of drug trafficking offense (924(c)), unlawful purchase of a firearm, and false statements in connection with registering a firearm with the Bureau of Alcohol Tobacco and Firearms, such as by lying on an ATF Form.

The Sixth Circuit under abuse of discretion vacated the defendant’s sentence and remanded for resentencing, holding that upward variance applied by the district court based on the defendant’s criminal history was unreasonable because it applied too much weight to a prior conviction and parole violations from the same offense. The Court also held that it was the defendant’s first firearm offense, a 15-year gap existed from prior dangerous conduct, and compared to similar cases, the doubling of his sentence had no meaningful relationship to his likelihood of reoffending.

Upon remand from the United States Supreme Court, the Seventh Circuit reconsidered the defendant’s conviction under 18 U.S.C. § 922(g)(3) in light of Rehaif v United States (2019) where the knowledge requirement applied to both elements including possession of a firearm and defendant belonging to a barred category. The Court vacated the defendant’s conviction for unlawful drug user in possession of a firearm and held that the record established that the defendant knew he was a drug user but did not sufficiently establish that the defendant knew his use was illegal.