(Hat tip: Sentencing Law and Policy.)
[i]t is not necessary for the government to prove that the defendant possessed both firearms. It is only necessary that you find that the government has proven beyond a reasonable doubt that the defendant possessed a firearm.
improperly allowed conviction even if the jurors were not unanimous as to which gun he actually possessed. This is not just theoretical, he asserts, because defense witnesses at his trial testified that the two guns were left in the vehicle on separate occasions, one days or weeks before the arrest and the other on the day of arrest. Consequently, he asserts, jurors may have disagreed as to which gun he knowingly possessed.
Presumably whether Talbert is required to register under state law is a mechanical, straightforward question – one the court did not address merely for lack of definitive information about Talbert’s prior sex-related convictions and state law. This, along with the fact that probation officers are often given wide discretion in enforcing conditions of supervised release–indeed, the United States Probation Office is a branch of the federal judiciary and “an investigatory and supervisory arm” of the sentencing court, see United States v. Davis, 151 F.3d 1304, 1306 (10th Cir. 1998)–lead us to find no error in with the discretion given here.
[T]o find that a state statute creates a crime outside the generic definition of a listed crime in a federal statute requires more than the application legal imagination to a state statute’s language. It requires a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime. To show that realistic possibility, an offender, of course, may show that the statute was so applied in his own case. But he must at least point to his own case or other cases in which the state courts in fact did apply the statute in the special (nongeneric) manner for which he argues.
Labels: Alien Harboring