The main federal gun law, (18 U.S.C. §922(g)) says it is unlawful for anyone who falls into one of the prohibited categories to “…possess in or affecting commerce, any firearm or ammunition.”  Then, a separate sentencing provision (18 U.S.C. §924(a)(2)) says the accused person is liable to a prison sentence if he or she “knowingly” violates §922(g).  Over the years, the Courts ruled that there are three elements of this crime: 1) prohibited status, 2) possession, and 3) that the possession was in or affecting commerce.  Also, over the years, prosecutors convinced the courts that the word “knowingly” only applies to one of these elements, namely, the possession requirement.  As a result, there are lots of prior cases ruling that prosecutors don’t need to prove that the accused person “knew” he or she was a prior felon, illegal immigrant, fugitive, or a dope smoker.  

Justice Gorsuch was brought up to the Supreme Court a couple of years back from the federal appellate bench.  While he was a regular old federal appellate judge, he wrote a couple of opinions noting the three elements of the federal gun law.  He criticized prior cases for reading the word “knowingly” as “leapfrogging over the very first § 922(g) element and touching down only at the second” because that interpretation “defies linguistic sense—and not a little grammatical gravity.”  Waxing a bit more poetically, he also said: “Congress gave us three elements in a particular order. And it makes no sense to read the word ‘knowingly’ as so modest that it might blush in the face of the very first element only to regain its composure and reappear at the second.”

Blushing or not, the Supreme Court last Friday agreed to hear a challenge to the gun law that appears to be almost entirely premised on Justice Gorsuch’s early writings.  The case is United States v. Rehaif.

Here’s what happened before the big Court accepted the matter.  Mr. Rehaif was from the Middle East, and was a student at a Florida university.  The school basically kicked him out, notifying him of this by sending him a couple of emails.   Because he was no longer enrolled, his immigration status  changed from legal to illegal.  He was confronted by some federal agents and freely told them he had some ammunition and had been shooting at a gun range recently.  The feds prosecuted him for being an illegal alien in possession of a firearm. His highly capable Federal Public Defenders asked the trial judge to tell the jury that the prosecution needed to prove that Mr. Rehaif “knew” of his illegal status, which sounds like a not-too-bad defense since no one confirmed he had received the emails and his supposed “confession” was heard by only a single agent and unrecorded.  The judge would not do so, he was convicted, and the Eleventh Circuit kicked him to the curb as well.  His PD kept fighting (love it when lawyers don’t give up) and, quoting extensively from then-Judge Gorsuch’s earlier writings, got the Supreme Court to grant review last week.

This case can be a big deal, for a number of reasons.   First, there were apparently over 8000 federal gun cases last year.  Second, this might be a chance for the somewhat new Justice Gorsuch to convince other members of the high Court that the laws should be applied as written, not merely as many prosecutors would like them to apply. Finally, it might provide some protection for people who have or are around firearms and who fall into one of the “prohibited person” categories.

Those of us who regularly practice criminal law in the federal court system generally refer to this statute as “924(c)”.  The history of the law is interesting, and somewhat relevant to current public debates.  In 1968, violent crime rates were rising, reaching a peak in the early 1990’s, after which they have dropped significantly.  The FBI numbers can be found on their database.

With crimes rates on the rise, Congress in 1968 added this law with the obvious idea of both trying to heavily punish and possibly deter people who feel it is a good idea to bring a gun to a crime.  Under 924(c), anyone who uses or carries or possesses a firearm (or explosive device) as part of a violent crime faces mandatory prison time.  This mandatory prison sentence has to follow, or in the words we use in federal court, must be “consecutive” to, any penalty for the underlying crime.  Furthermore, if the Defendant did more than one violent crime, and had a gun each time, the penalties get multiplied (the first is 5 the second is 25 on top of the first 5, you get the idea).  It is not unheard of for the 924(c) component of a federal sentence to be 5-30 years or more, before the judge even gets around to figuring out the penalty for the crime the gun was used in.

Not only does the law have severe penalties, it also is exceedingly difficult to read and understand.  As noted before, the Supreme Court has waded into the thicket of the language over a dozen times, trying to figure out the meaning of ambiguous phrases like “use or carry” or “during and in relation to.”  The Justices have realized over the years that the 924(c) statute gives a huge advantage to prosecutors who can bring (or threaten to bring) charges under this statute against a Defendant to make him and his lawyer knuckle under and plead guilty (or more likely, to rat on somebody else involved).

The latest incarnation of the Supreme Court’s infatuation with 924(c) deals with what information the sentencing judge can consider when deciding the appropriate sentence for the underlying crime.  Ever since 2005, judges have had the ability to “vary” from the Sentencing Guidelines that apply to this underlying crime.  However, a case from the Eighth Circuit (the federal appeals court that covers all federal cases in Iowa) says that a judge cannot think about how much time the Defendant will automatically receive under 924(c) when the judge is deciding what kind of sentence the person should get for the underlying crime. In the Dean case, the Defendant and his even-more foolish brother used guns to rob drug dealers and then “jack” a vehicle, yielding 35 years worth of 924(c) time in prison.  The Judge thought that was plenty for the brother who was basically along for the ride, and the Judge said he would have given only a single day in prison for the underlying crimes but for previous Eighth Circuit case.  As mentioned above, arguments will take place February 28, stay tuned for the last example of the Court’s fascination with this statute.

A couple of important things about the ACCA before we discuss the decision.  First, the law was part of that horrible mess enacted in 1986 when our Nation’s rulers decided to impose amazingly long sentences for a whole variety of crimes.  This mess included the now-derided mandatory minimum sentences for various crimes, mostly involving drugs, which I wrote about recently here.  After these laws passed, most experienced practitioners in the federal criminal justice system could not even wrap their heads around fifteen years in custody for merely possessing a gun.  I recall a number of cases where prosecutors simply ignored this statute, believing it could not mean what it said.  By the early 1990’s, however, prosecutors got more comfortable in asking for these lengthy prison sentences. Pretty soon,  we all became accustomed to it, and defense attorneys then started challenging whether this penalty really applied to all of the Defendant’s prior crimes.

These challenges eventually worked their way up to the Supreme Court, resulting in five separate cases over a nine-year span. The first case told judges to use a “categorical approach” when deciding if the Defendant’s prior crime “involved” a “serious potential risk of physical injury to another.”  In other words, look only at the way the crime was defined, not what the person did.  Succeeding cases looked at whether various crimes like DUI, attempted burglary, not reporting to prison, or vehicular flight from the police did or did not fall within this imprecise standard of serious potential risk of physical injury to another.

Last week, the Supreme Court took the highly unusual step of deciding that this phrase is so imprecise that it violates the Due Process Clause of the Constitution. The Government violates the Due Process Clause when it takes away someone’s life, liberty, or property under a criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement. Because the ACCA mandates that a judge assess the risk to a judicially imagined “ordinary case” of a crime rather than to real-world facts or statutory elements, the clause leaves grave uncertainty about how to estimate the risk posed by a crime. Furthermore,  the residual clause leaves uncertainty about how much risk it takes for a crime to qualify as a violent felony.

Even more surprisingly, the decision last week overturned the part of the earlier decisions which said that the law was not “void-for-vagueness.”  First-year law students learn about stare decisis, the principle that courts must be bound by earlier rulings on the same subject.  The Supreme Court last week went to great lengths to point out how unworkable the law was.  The justices  explained how the earlier ACCA decisions had tried very hard to make the statute somehow comprehensible, but that effort failed, because federal courts were all over the place when applying the ACCA to various prior crimes.

I happen to think this is part of a trend, as I have discussed previously.  The U.S. went a bit bonkers in the late 1980’s on criminal justice issues, resulting is our Nation having more people behind bars than almost any other country.  The pendulum is swinging the other way , and this ruling from last week is just one point along that spectrum of more sensible views on crime.

Earlier this week, the United States Supreme Court accepted a straw purchase case for review later this year or early in 2014. The case is United States v. Abramski.

Back when I was regularly screaming that straw purchases are not a crime, the situation usually involved somebody who was buying guns for “prohibited persons”, such as folks who had a prior criminal record and therefore could not get the firearm themselves. However, sometimes the later recipient was not a prohibited person, but the prosecutors and the judges still said it was a crime to walk into a store, plunk down money, and later hand the weapon over to somebody who had every right to own a gun. A few courts (in Texas and in Idaho) ruled that the straw purchase theory only makes it a crime when somebody walks into the store to buy a gun for a convicted felon, but these few courts finally acknowledged that it is not a crime when you buy a gun for a person who could do so themselves.

In the Abramski case that the Supreme Court agreed to hear, the defendant is a former police officer who bought a gun for his uncle. The uncle is legally entitled to buy a gun himself. Because Abramski worked in law enforcement, and therefore gets a discount at many gun stores, he bought the gun to save his uncle some money. Abramski checked a box on an ATF form indicating that he was the “actual buyer.” However, the government takes the position (as set out on that particular Form) that a person who buys a gun intending to later transfer it to someone else is not an “actual buyer.” After discovering that Abramski bought the gun for his uncle but had checked the “actual buyer” box on the ATF form, the government indicted him for making a false statement on the Form.

This case has several important things to keep in mind. First, I never cease to be amazed at some of the cases brought into federal criminal court. This situation seems to be complete BS, and unless there is some back story, one wonders why federal authorities are wasting their time going after a law enforcement official who simply wanted to save his uncle a few bucks. Second, this case also reminds me that people facing federal crimes need lawyers who are not afraid to challenge even accepted theories of prosecution. I happened to be one of the first attorneys challenging the straw purchase theory. Mr. Abramski’s lawyers repeated many of my arguments, and I fully expect that these arguments might bear fruit in the Supreme Courrt.

Like many Americans, Mr. Castleman apparently got into a domestic squabble. He was charged with a crime because he committed an assault on the mother of his child, and like so many incidents, he got a sentence of probation. Several years later, federal authorities investigated him for gun crimes, resulting in charges for violating Title 18, United States Code, section 922(g)(9), which makes it a crime for any person convicted of a “misdemeanor crime of domestic violence” to possess a firearm. The phrase “misdemeanor crime of domestic violence” is defined as a misdemeanor offense, committed by a person with a specified domestic relationship to the victim, that “has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon.”

Castleman’s attorney recognized that there is a difference in the wording of the two laws. On the one hand, the federal law says that a person with a prior misdemeanor conviction is prohibited from having a gun only if the prior case involved “physical force”, while the Tennessee misdemeanor to which Mr. Casteleman had pled guilty merely says it is crime to engage in an “assault” of another person with whom you have a child. Not all assaults require the use of physical force. Both the trial judge and the federal court of appeals agreed with Mr. Castleman’s lawyers, and they threw out the charges.

However, the federal government has been waging a war for several years relating to “repeat offenders.” A wide variety of federal criminal statutes call for increased penalties for or prosecution of people who have more than one prior case of a certain category. The key issue is how Congress defined the prior crime for which a prosecution or increased penalty is required. That’s the nub of the issue in the Castleman case that the Supreme Court recently agreed to decide. Over the past two decades, the Court sometimes allows for a broad use of these recidivist laws, while on other occassions the Justices focus on the specific words used by Congress, and throws out cases that do not fit within the exact words used in the law. We will keep an eye on this one to see how it goes.

in March, 1994 Mr. Thompson was convicted of assault, and under Alabama law he automatically lost the right to possess a firearm, to hold office, to serve on juries, and to vote. Eleven years later, Thompson applied to the State of Alabama for restoration of his civil rights. He got a letter from the State of Alabama Board of Pardons and Paroles in early, 2006, which said that he could once again register to vote and actually vote in elections. However, the letter also said that “THIS CERTIFICATE IS NOT A PARDON AND DOES NOT RESTORE, REMOVE OR ADDRESS ANY OTHER RIGHTS, PRIVILEGES OR REQUIREMENTS.” Another letter said that, ” If you desire to have any additional rights restored, please inquire at your local probation and parole office.” Three and a half years later, the police arrested Mr. Thompson while he had a gun. A federal grand jury charged Thompson in a one-count indictment with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Thompson moved to dismiss the charges, pointing out that because his right to vote was restored, he fell within the exception described at 18 U.S.C. § 921(a)(20), which provides that “[a]ny conviction . . . for which a person . . . has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such . . . . restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.” § 921(a)(20) (emphasis added).

The Eleventh Circuit began by noting that neither the statute nor the legislative history clarifies which civil rights must be restored to a convicted felon in order to satisfy the § 921(a)(20) exception. Earlier cases said that when a convicted felon’s civil rights are “unreservedly” restored, the person qualifies for the § 921(a)(20) exception, but that that the exception does not apply where a convicted felon has no civil rights restored after his conviction. One of the earlier cases noted it was an open question as to whether “all civil rights must be restored or merely some of them, and if only some, which ones, in order for § 921(a)(20) to preclude a convicted felon’s prosecution under § 922(g)(1).” With that as background, the Court of Appeals turned to the question of whether the restoration of only the right to vote was a sufficient restoration of civil rights under § 921(a)(20) to preclude a convicted felon’s prosecution for possessing a gun.

For two reasons, the Eleventh Circuit decided that restoration of only the right to vote is not good enough to use the exception. First, the Court pointed out that the law was written using the plural word “rights” and not the singular “right.” Second, the Eleventh Circuit surveyed the landscape of other federal appellate decisions, concluding that the single restoration of the right to vote was not enough to allow for a defendant to use this exception.

The bottom line is that when a person gets a state felony conviction, he or she should try everything possible to get as many of their rights restored as possible, if they ever want to again possess a gun.

As we discussed in this post when the Court granted certiorari, § 924(c) contains a prefatory clause, called the “except” clause, that applies the subsection “[e]xcept to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law.” We read that clause as plainly prohibiting the application of § 924(c) where “any other” greater minimum sentence applies. The government disagreed, arguing that the clause is triggered only when another provision commands a longer term for conduct that violates §924(c).

Gould argued the plain language of the clause: that it applied whenever any count of conviction at sentencing required a greater minimum sentence. Abbott proposed two potential happy mediums: that the minimum sentence “otherwise provided” must be one imposed for the §924(c) predicate crime or, in the alternative, for a firearm offense involving the same firearm that triggered §924(c). The Court rejected all three arguments.

The Court relied on the legislative history of § 924(c), reasoning that when enacting the “except” clause, Congress intended to treat gun possession more harshly.

The opinion in Abbott is available here.

In Davis, the defendant was a passenger in a routine traffic stop in Alabama. He gave the police officers a false name. When asked to exit the vehicle, Davis removed his jacket and left it in the car, then was taken toward a group of bystanders. The bystanders provided his real name, leading to Davis’s arrest for giving a false name. In the search incident to his arrest, the officers found a gun in the jacket, which was still in the car. Davis was convicted of possession of a firearm and sentenced to more than 18 years.

As we explained in this post, the Supreme Court decided Arizona v. Gant in April 2009. The Court held that police are authorized “to search a vehicle incident to a recent occupant’s arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search,” unless some evidence related to the crime of arrest may be in the vehicle. This decision rendered the search in Davis unconstitutional.

In applying Gant to searches predating the decision, the Ninth and Tenth Circuits disagreed on whether the exclusionary rule must be applied to searches now rendered unconstitutional. The Eleventh Circuit joined the Tenth in holding that the good faith exception prevented exclusion of evidence from such searches. The Fifth Circuit has held similarly prior to Gant, but the Seventh Circuit was skeptical.

We hope the Supreme Court protects defendants’ constitutional rights and reverses the Eleventh Circuit’s decision.

The Eleventh Circuit’s opinion in Davis is available here.

The petition for certiorari is available here.

The brief in opposition is available here.

The defendant, a man of many names whom the court referred to as Emmanuel, is the American born-and-raised son of Charles Taylor, a former president of Liberia who is currently on trial for crimes against humanity in the Special Court for Sierra Leone. President Taylor put Emmanuel in charge of the “Anti-Terrorism Unit,” which was known in Liberia as the “Demon Forces.” In that role, Emmanuel tortured many individuals between 1999 and 2002. Twelve pages of the Court’s 87-page opinion recount horrifying details of that torture.

The Court justified the application of § 924(c) to crimes of violence committed extraterritorially by arguing that the plain language of § 924(c) provides for its application to any crimes that “may be prosecuted in a court of the United States.” Because the Torture Act, which applies extraterritorially, may be prosecuted in federal courts, the Court reasoned, “a § 924(c) charge can arise out of extraterritorial conduct that is found to be in violation of the Torture Act.”

In so holding, the Court glossed over the general presumption that statutes apply only domestically, with extraterritorial effect only where congressional intent is clear. Without citing any case law approving the application of § 924(c) to conduct outside the Unites States, the Court distinguished U.S. v. Small, a Supreme Court case holding that the word “any” in a different federal criminal statute could not overcome that Congress normally legislates with only domestic concerns in mind.

We believe this case would be a good candidate for the Supreme Court to grant certiorari if Emmanuel appeals this decision. If that happens, we will provide an update on the case.

The full opinion in U.S. v. Belfast is available here.

The Original Sentence and Appeals In 1997, Gilbert was convicted of a crack cocaine offense and sentenced as a career offender under § 4B1.1 based upon previous convictions for possessing crack with intent to sell and carrying a concealed firearm. Under the then-mandatory Sentencing Guidelines, the enhancement increased his Guidelines range from 151-188 months to 292-365 months. Gilbert argued that carrying a concealed firearm was not a crime of violence, but the district court judge disagreed and, stating that he thought the sentence was too high, reluctantly sentenced Gilbert to 292 months. On appeal, the Eleventh Circuit held that carrying a concealed firearm was a crime of violence for purposes of the career offender guideline. Gilbert’s pro se § 2255 motion was denied in 1999, all post-conviction options now exhausted.

Legal Developments in 2008 In 2008, the Supreme Court decided Begay v. United States, holding that under the Armed Career Criminal Act (ACCA) the term “violent felony” applies only to crimes that are similar in kind and degree of risk to those expressly listed in the statute. That same year, the Eleventh Circuit applied the Begay analysis in United States v. Archer, abrogating its holding in the 1998 Gilbert decision. The Court held that “the crime of carrying a concealed firearm may no longer be considered a crime of violence under the Sentencing Guidelines.” Also in 2008, Amendment 706 provided a two-level reduction in base offense levels for crack cocaine offenses and was made retroactive.

In response to these developments, the district court sua sponte ordered the parties in Gilbert’s case to file responses regarding eligibility for a sentence reduction. The government argued that Gilbert was not entitled to any relief under Begay and Archer because a second § 2255 motion is permissible only where new evidence is discovered or the Supreme Court makes a previously unavailable constitutional law retroactive. The government also insisted that Amendment 706 could not apply because Gilbert was sentenced under the career offender guideline. The district court reluctantly agreed.

The Issue Before the Eleventh Circuit Gilbert filed a motion to reopen his original § 2255 motion, suggesting that the court could treat it as a motion for relief under § 2241, which provides relief when a petitioner can prove actual innocence of the crime for which he was convicted. The district court denied his motion, but granted a certificate of appealability. The Eleventh Circuit held that the “savings clause” of § 2255 permitted relief under § 2241 under the authority of Wofford v. Scott and the doctrine of “actual innocence.”

The “savings clause” of § 2255 permits traditional habeas corpus relief under § 2241 where a § 2255 motion is inadequate or ineffective to test the legality of detention. In Wofford, the Eleventh Circuit held that the savings clause applies in the rare case when (1) the claim is based upon a retroactively applicable Supreme Court decision; (2) the holding of that decision establishes that the petitioner was convicted for a nonexistent offense; and (3) circuit law foreclosed the claim when it should have been raised.

The government argued that Gilbert failed to meet the second requirement: that he was convicted for a nonexistent offense because the career offender guideline was not a separate offense. The Court disagreed, applying the Supreme Court’s analysis in Sawyer v. Whitley that a sentencing enhancement based upon proof of statutory aggravating factors establishes a separate offense and raises the possibility that a defendant might be actually innocent of that offense. The Court extended Sawyer to the career offender context, commenting that, “To accept the government’s position that the law provides Gilbert no remedy for the clear wrong that has been done to him is to elevate form so far over substance as to make unrecognizable the concept of fair play and due process.”

Gilbert has served 171 months of his sentence. The maximum sentence he could have received for his underlying conviction was 188 months. He is likely entitled to an amended Guideline range of 130-162 months under Amendment 706, so “he is, in a very real sense, presently serving his illegal enhancement.” The Court vacated Gilbert’s sentences and remanded for resentencing. In addition, the Court issued a separate order to expedite issuance of the mandate.

The recent Eleventh Circuit opinion in Gilbert v. United States is available here. The Supreme Court’s opinion in Begay is available here. The Eleventh Circuit’s opinion in Archer is available here.

We have discussed cases applying the Begay analysis at the following posts:

Chambers (Supreme Court: failure to report to a penal institution is not violent felony)

Lee (Eleventh Circuit: walkaway escape is not violent felony)

Harris (Eleventh Circuit: fleeing from police at high speed is violent felony)

Hunter (Eleventh Circuit: possession of firearm is not violent felony under Archer, but providing no relief from illegal sentence)