Section 922(g)(9) “Misdemeanor Crime of Domestic Violence” Only Requires Offensive Touching

United States v. Castleman, No. 12-1371 (U.S. Mar. 26, 2014) (Majority: Sotomayor, Roberts, Kennedy, Ginsburg, Breyer, Kagan; Concurring in part and in the judgment: Scalia; Concurring in the judgment: Alito, Thomas)

A person convicted of a “misdemeanor crime of domestic violence” is prohibited from possessing a firearm.  A “misdemeanor crime of domestic violence” is defined in part as an offense that “has, as an element, the use or attempted use of physical force, or threatened use of a deadly weapon, committed by a . . . person with whom the victim shares a child in common.”  18 U.S.C. §§ 921(a)(33)(A), 922(g)(9).  In Castleman, the Court had to define “physical force” and determine whether Castleman’s conviction of “intentionally or knowingly caus[ing] bodily injury to” the mother of his child, in violation of Tennessee Code § 39-13-111(b), made him a prohibited person under § 922(g)(9). 

Castleman successfully argued before the district court and the Sixth Circuit that his conviction was not a “misdemeanor crime of domestic violence” because one can cause bodily injury without “violent contact” with the victim.  The Sixth Circuit held that the degree of physical force required by § 921(a)(33)(A)(ii) is the same as that required by the Armed Career Criminal Act (“ACCA”), § 924(e)(2)(B)(i), which defines “violent felony” and was addressed by the Supreme Court in Johnson v. United States, 559 U.S. 133 (2010).  In Johnson, the Court held that “physical force” as used to define a “violent felony” does not mean battery or offensive touching but must mean “violent force.”

The Supreme Court reverses.  The majority holds that “physical force” as used in § 921(a)(33)(A)(ii) has the common-law meaning of physical force, which is essentially battery or offensive touching.  The Court reasons that the common-law definition applies because, unlike the term “physical force” in the ACCA, there is no indication that Congress did not intend to incorporate the common-law term of “physical force” in the definition of misdemeanor crime of domestic violence.  To support this, the majority points out that perpetrators of domestic violence are routinely convicted under assault or battery laws, that the term “domestic violence” does not necessarily connote a substantial degree of force, that it makes sense to group domestic abusers convicted under generic assault or battery offenses with the others listed in § 922(g) who can’t possess guns, and that construing the term otherwise would have rendered § 922(g)(9) inoperable in at least ten states.

The majority then applies this definition of “physical force” to Castleman’s offense and finds that “the knowing or intentional causation of bodily injury necessarily involves the use of physical force,” offensive touching.   

In his concurrence, Scalia applies the Johnson definition of “physical force,” meaning “force capable of causing physical pain or injury to another person,” but still finds that Castleman’s offense would necessarily involve the use of violent force.  He thinks that the term “physical force” should mean the same thing in § 921(a)(33)(A)(ii) as in § 924(e)(2)(B)(i) and systematically rejects each of the majority’s reasons for distinguishing the terms.

Alito writes separately to voice his disagreement with the Johnson majority, as he believes “physical force” in both statutes should be given the common-law meaning of battery.

More info: http://www.scotusblog.com/case-files/cases/united-states-v-castleman/

Officer Trickery Can Taint Subsequent Admissions or Consent Depending on Circumstances

United States v. Guzman, No. 12-11279 (5th Cir. Jan. 7, 2014) (Higginbotham, Owen, Higginson)

The panel vacates Guzman’s conviction and remands since “the district court expressly declined to make factual findings that may have had a determinative impact on the outcome of the suppression hearing.”  What factual findings did the court refuse to make?  Whether Guzman consented, whether the officer misrepresented his authority to search Guzman’s car, and whether the officer’s misrepresentation rendered Guzman’s statements inadmissible and consent involuntary.  Instead, the court decided that even if the officer tricked Guzman into making an admission, such trickery did not taint the search.

Here’s what happened: Officers arrive at a house based on a tip that meth is being sold there.  Guzman was sitting in a car in the driveway, and he exited the car when the officers approached.  An officer “struck up a conversation” with Guzman, during which Guzman mentioned that he was just released from prison.  In the officer’s version of what happened next, he asked Guzman if he could search his car for drugs; Guzman consented, saying there were no drugs but there was a handgun.  In Guzman’s version (corroborated by the audio recording of his later interrogation), the officer said he was going to search the car, and Guzman responded that there were no drugs but there was a handgun.  The officers found the handgun but no drugs.  Of course, the officers also discovered that Guzman was a convicted felon, and he was then charged with being a felon in possession.

In response to Guzman’s suppression motion, the Government argued that Guzman gave verbal consent or, alternatively, that the search was permissible under the automobile exception since Guzman said he was released from prison and there was a gun in the car.  During closing, the district court asked whether an officer could trick a defendant into making a guilty admission by saying, “I’m going to search your car whether you like it or not.  When I do, am I going to find any contraband?,” and whether a guilty admission would justify probable cause to search the car.  The court decided an officer could do such a thing, which would justify probable cause for the automobile exception to the warrant requirement, and denied the motion to suppress without deciding whether or not Guzman voluntarily consented to the search or whether or not the officer asked for consent or said he was going to search the car.

The panel points out that a false claim of lawful authority could affect the validity of Guzman’s consent and the admissibility of his subsequent statements.  “An inadmissible statement cannot constitute probable cause to support an otherwise illegal search.”  Further, “‘any misrepresentation by the Government is a factor to be considered in evaluating’ whether the defendant’s consent was voluntary.”  The panel clarified that United States v. Andrews, 746 F.2d 247 (5th Cir. 1984), “did not establish a general rule that officers can use trickery to obtain consent” but was a “narrow” decision holding that the Government carried its burden in that case to show that Andrew’s consent was voluntary.

Since the district court did not ask the right legal questions in making its ruling and declined to make the factual findings necessary to resolve the issue, the panel remands to the district court to obtain additional findings.

Note: As an alternative, Guzman argues for the first time on appeal that the automobile exception could not apply to this case because his car was parked in a private driveway.  Even though the panel finds Guzman waived this argument by not raising it at the suppression hearing, the panel notes that this argument does not have clear support in Fifth Circuit precedent when officers believe the home in question was being used for illegal activity.

Washington Residential Burglary Is § 2L1.2 Crime of Violence

United States v. Guerrero-Navarro, No. 12-40802 (5th Cir. Dec. 16, 2013) (King, Benavides, Dennis)

Guerrero pled guilty to illegal reentry in violation of 8 U.S.C. § 1326 and possessing a firearm as a prohibited person in violation of 18 U.S.C. §§ 922(g)(5)(A).  Over Guerrero’s objection, the district court determined that his prior conviction for residential burglary in Washington, Wash. Rev. Code § 9A.52.025, is a “crime of violence” both under § 2L1.2 and § 4B1.2(a).  The court applied the enhancements and sentenced Guerrero accordingly.

Guerrero argues that the Washington statute was broader than the generic definition of burglary because it includes fenced areas.  Washington defines a dwelling as “any building or structure . . . which is used or ordinarily used by a person for lodging” and “building” as “any dwelling, fenced area, vehicle, railway car, cargo container, or any other structure used for lodging of persons or for carrying on business therein . . . .”  The panel rejects this argument, finding “there is little or no ‘realistic probability’ that a Washington court would apply the statute to anything other than the structures permitted by” Supreme Court and Fifth Circuit precedent.  See, e.g., United States v. Castillo-Morales, 507 F.3d 873, 875 (5th Cir. 2007) (defining burglary of a dwelling as the unlawful entry into or remaining within, with the intent to commit a crime, a “structure, tent, or vessel where someone lives”).  The panel recognizes that the Ninth Circuit reached the opposite conclusion in United States v. Wenner, 351 F.3d 969 (9th Cir. 2003), finding that Washington has a broader definition of dwelling.  The panel, however, justified its different conclusion because of “the benefit of an additional decade of jurisprudence in which Washington’s courts have consistently interpreted the term such that it denotes and connotes traditional structures, and only those used for human habitation.”  Thus, Washington residential burglary is a crime of violence for purposes of § 2L1.2(b)(1)(A).

Note: The opinion makes a few confusing misstatements that do not affect the ultimate analysis.  Don’t let those confuse you.  For instance, it applies the U.S.S.G. § 4B1.2 definition of a “crime of violence” instead of the definition in § 2L1.2.  Both § 4B1.2 and § 2L1.2 state that “burglary of a dwelling” is a crime of violence, and the § 4B1.2 definition also applies to this case because the guideline for his firearm conviction, U.S.S.G. § 2K2.1, refers to the crime of violence definition at § 4B1.2.  Also, the opinion states that Guerrero pled guilty to “knowing unlawful presence in the United States, in violation of 6 U.S.C. §§ 202(3) & 202(4).”  He really pled guilty to illegal reentry in violation of 8 U.S.C. § 1326.  Being present in the United States is not a crime unless it satisfies the criteria of “found in” described in 8 U.S.C. §1326.  Section 202 of Title 6 of the U.S.C. merely enunciates the responsibilities of the Under Secretary for Border and Transportation Security.

Grant of New Trial Based on Prosecutor’s Comments Reversed

United States v. Poole, Nos. 12-20485 & 12-20486 (5th Cir. Nov. 11, 2013) (Smith, Dennis, Higginson)

A jury convicted Poole of being a felon in possession of a firearm, but the district court vacated the jury verdict and granted a new trial based on certain comments and cross examination by the prosecutor.  The panel reversed and remanded so that the jury verdict could be reinstated.

Poole first asked for a mistrial when deputy marshal testified on direct examination that one of his duties is “to locate and apprehend local and federal fugitives.”  Defense counsel objected, and the court instructed the jury that Poole was not a fugitive.  The panel found that this line of questioning, which allowed the marshal to explain his duties and give context for being at the scene, is permissible and was not erroneous.

Poole also asked for a mistrial because, during closing arguments, the prosecutor stated that it was not Poole’s “first time in this situation”; asked the jury if it was “going to believe a liar,” referring to Poole; and referred to Poole’s gun as an “assault rifle.”  These arguments eventually convinced the court to grant the mistrial.

However, the panel found that none of these comments in the context of the trial indicated that the verdict was compromised.  The jury was already aware of Poole’s convictions, and the prosecutor referred to them in order to rebut Poole’s defense that he made up the story about owning the rifle, not to demonstrate criminal propensity.  Further, “[t]he government was well within its rights to suggest to the jury that Poole was a liar” since Poole himself testified that he lied.  The panel also rejected Poole’s argument that calling his gun an “assault rifle” justified the court’s grant of a new trial, noting that the gun was referred to as an “assault rifle” throughout the trial but Poole never objected to it.

Since the panel found that none of the challenged comments were improper, the court did not have the discretion to order a new trial.  The panel also rejected the argument that a new trial was necessary because of the prosecutor’s contemptuous conduct.  “[A] new trial is not a mechanism for punishing contempt, by a prosecutor or otherwise, but a way to avoid injustice generally and to avoid a jury verdict for which one has compromised confidence specifically.”

Disassembled Firearm Found Near Drugs Sufficient for § 2K2.1(b)(6)(B) Enhancement & § 922(g)(1) Still Constitutional

United States v. Alcantar, No. 12-10909 (Oct. 7, 2013) (Reavley, Elrod, Haynes)

The panel found that the U.S.S.G. § 2K2.1(b)(6)(B) 4-level enhancement—“[i]f the defendant used or possessed any firearm . . . in connection with another felony offense”—applies to a drug trafficking offense if a disassembled firearm is found in close proximity to drugs, as per the application note.  The PSR described the firearm being found in the bedroom with the drug-manufacturing materials and paraphernalia, and Alcantar didn’t present any evidence rebutting the proximity of the firearm.  Instead, Alcantar provided evidence that the firearm was disassembled, that he didn’t know how to assemble it, and that he didn’t have any ammunition for it.  The panel was unconvinced, basically saying that the Guideline explanation of “in connection with” doesn’t require that the firearm actually be used in furtherance of the offense.  Close proximity is sufficient, and the district court didn’t err in applying the enhancement.

Alcantar also argued that 18 U.S.C. § 922(g)(1), convicted felon in possession of a firearm, is unconstitutional facially and as-applied because it exceeds Congress’s Commerce Clause authority.  He recognized that this argument is foreclosed by Fifth Circuit precedent but argued that the Supreme Court’s decision in National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566, 2587 (2012), overrules that precedent.  The panel disagreed since National Federation involved Obamacare and not § 922(g)(1).  Still, food for thought.

Admission of Gang Membership Harmful Error

United States v. Hamilton, No. 12-20250 (July 11, 2013) (Stewart, Higginbotham, Jones)

Hamilton was on trial for unlawful possession of a firearm as a convicted felon. The evidence of possession was circumstantial: an agent saw him move his arm outside of his parked car and later found a gun under the tire of an SUV next to where Hamilton parked. When he was stopped for a traffic violation, a record check revealed that he was affiliated with the Black Disciples gang ("BD"), and Hamilton admitted to an agent that he "was" a BD.

The court permitted testimony regarding Hamilton’s gang membership over his objection. An agent testified that Hamilton had been affiliated with the BD since 1998, that Hamilton stated that he "was" a BD, and that the agent had never known a gang member who really left a gang. The agent proceeded to testify that he had made numerous arrests of gang members who possessed guns. The case then went to the jury without a limiting instruction, and the jury convicted Hamilton.
The panel determined that the agent’s gang-related testimony was extrinsic and that it did not pass the Beechum test, which allows extrinsic evidence to be admitted that (1) is relevant to an issue other than the defendant’s character, and (2) has a probative value not substantially outweighed by its undue prejudice. 

Because the evidence of guilt was sparse, and the prejudice that comes with gang membership may be great, ‘there is a reasonable possibility that the improperly admitted evidence contributed to [Hamilton’s] conviction.’ United States v. Williams, 957 F.2d 1238, 1242 (5th Cir. 1992) (internal citation marks omitted).

The panel reversed and remanded. It noted, however, that testimony related solely to the record check and to Hamilton’s comment was intrinsic to the offense - as part of the on-scene investigation - and not subject to Beechum. The agents testimony went far beyond that int rinsic evidence, however.

An Important Lesson On Error Preservation, An Open Miranda Question, and Knowledge of Interstate Movement in FIP Cases

United States v. Potts, No. 10-10257 (5th Cir. June 15, 2011) (Smith, DeMoss, Owen)

A general rule of preserving error at trial (which I'm shamelessly stealing from someone else) is to keep asking for things until the court says no. Failure to do so, as Potts illustrates, lands you in the dark realm of plain error review.  Not a good place to be when, as in Potts, the question of whether there was error at all concerns an issue that remains open in the Fifth Circuit. Oh, and one more thing: to be guilty of being a felon in possession of a firearm, need a defendant know that the firearm had moved in interstate commerce? Important issues all.

So what happened here? Potts was stopped by Officer James (for reasons that aren't at all clear to me from the opinion). Thence,

James instructed Potts to park the car and shut off the engine. Potts began to reach under his seat, at which point James ordered Potts to show his hands. Potts did not immediately comply with that command and instead continued to reach under the seat. James approached the vehicle and ordered Potts to exit the car. Potts complied, and James was able to see that a firearm was protruding from under Potts’s seat.

James examined the firearm, handcuffed Potts, and sat him down on the street curb. James then asked Potts whether the gun belonged to him, but Potts did not respond. A search was conducted of the car, which yielded two additional firearms and some ammunition. Potts was then arrested.

(emphasis added). "At trial, the prosecution elicited testimony from James regarding Potts’s silence after being asked who owned the pistol." Potts objected to the testimony as a Fifth Amendment violation. The court did not rule on the objection, but suggested that it could instruct the jury that Potts had no obligation to answer the officer's question and that it's not against the law to do so. Potts agreed to the instruction, which the court then gave. "Potts did not reassert his objection to the testimony, object to the instruction, or move for a mistrial." When the prosecutor brought up Potts' silence again in closing argument, "Potts objected, not on any Fifth Amendment ground but on the ground that the prosecution was attempting to shift the burden of proof." The jury found Potts guilty.
 
On appeal, Potts argued first "that the government violated his Fifth Amendment right against self-incrimination by referencing, during trial, his silence in response to police questioning[.]" The court reviewed for plain error, because an objection alone was not sufficient to preserve the issue.

In Salinas, 480 F.3d at 755, we held that plain-error review was appropriate for a Fifth Amendment claim even though defense counsel “timely objected to each of the prosecutor’s references to [the defendant’s] post-arrest silence,” because “the trial court sustained all of those objections, and the trial court’s instructions to the jury made it clear that the jury was not to consider any of the challenged remarks.” Furthermore, we remarked that the defense “never took exception to the district court’s handling of his objections and, significantly, . . . never requested that the district court declare a mistrial.” Id. at 755-56. Plain error review was appropriate, because the defendant “effectively received all of the relief that he requested from the district court.” Id. at 756.

Salinas is not directly controlling, because the court did not explicitly sustain Potts’s objections, but the principles of Salinas inform us. As with the defendant in Salinas, Potts never raised any concerns with how the district court chose to handle his objection, and Potts explicitly agreed to the court’s proffered curative statement.

(emphasis added). Potts argued that the district court had implicitly overruled his objection, but the court of appeals didn't buy it:

Potts objected to testimony regarding his silence. The district court then offered a curative instruction, which Potts accepted. By accepting the instruction, Potts failed to obtain a definitive ruling on his objection—there was no implicit overruling, but rather no ruling at all. Following that failure to obtain a ruling, Potts accepted the court’s curative instruction without objection, thus failing to preserve error.

And that was a problem. Potts couldn't satisfy the second prong of plain-error review—that any error be clear or obvious— because the Fifth Circuit "has yet to address conclusively whether the use of pre-Miranda silence as substantive evidence of guilt is a Fifth Amendment violation."
 
On to Potts' next argument, the travelling gun one:

Potts contends that the government was required to prove, but did not, that he knew the firearm had traveled in interstate commerce. Potts was convicted pursuant to 18 U.S.C. § 922(g)(1)and sentenced pursuant to 18 U.S.C. § 924(a)(2). He argues that the word “knowingly” in § 924(a)(2) requires the government to prove that every element in § 922(g)(1), including that the firearm had traveled in interstate commerce, was known by the defendant.

That argument, however, is foreclosed by United States v. Rose, 587 F.3d 695 (5th Cir. 2009). There, the defendant raised the same argument as Potts does here, but we rejected it because the defendant had not been sentenced under § 924(a)(2). Id. at 705-06. Rather, he was sentenced under § 924(e)(1), which does not contain a “knowingly” requirement. We went on, however, to state that “[e]ven assuming arguendo that the ‘knowingly’ requirement in § 924(a)(2) applied throughout that section, there would be no corresponding impact on the elements of a crime listed in § 922(g)(1).” Id. at 706 n.9. That statement in Rose was not mere dictum; rather, it was an alternate holding that carries the force of precedent. Thus, Potts’s claim fails.

Defense Suppression Victory; Court Upbraids Prosecutor for Improper Remarks During Closing Argument

United States v. Raney, No. 10-20007 (5th Cir. Feb. 9, 2011; rev. Feb. 10, 2011) (per curiam) (DeMoss, Elrod; Benavides, dissenting)

This case presents two you-dont-see-that-every-days: a rare Fourth Amendment win for the defense, and a stern warning to prosecutors to knock it off with the improper jury arguments.

So what happened here? Raney drove on the wrong side of the street to get around a long line of cars waiting to get into a gas station.  A police officer, who was standing in that lane directing traffic, motioned for Raney to pull over.  Raney did so.  Upon approaching, the officer could smell marijuana.  He ordered Raney out of the car.  A brown object resembling what the officer to believed to be a jazz cigarette fell on the ground.  Handcuffs and pat-down.  Gun in the waistband, ammo in the glovebox, and a felony conviction on the rap sheet = felon-in-possession charge.  The district court denied Raney's motion to suppress the gun and ammo, finding that the stop was justified due to a traffic violation: driving on the wrong side of the street.  A jury found him guilty of the FIP charge.  Raney appealed.

To make a long story short, the panel majority held that there was not an objectively reasonable basis for believing that Raney had committed the three traffic offenses the Government claimed in the district court (driving in the wrong lane, disobeying an officer directing traffic, and reckless driving), or any of the other claimed violations the Government offered for the first time on appeal.  In so holding, the court mentioned a couple of broader points that bear repeating.  First, "[o]ur case law is clear that unless a defendant actually committed a traffic violation, there is no objective basis for the stop in the context of a traffic stop."  Second, and relatedly, the good-faith exception is not available to salvage a stop based on an officer's subjective, but erroneous, belief that a traffic violation occurred.

As it happens, the district court did not make any findings on the Government's disobeying-an-officer and reckless-driving arguments.  But interestingly, the court of appeals refused to remand for additional fact-finding on whether Raney committed those offenses: because "the record has . . . been developed as to these arguments[, w]e will not afford the government a second opportunity to present evidence to the district court in an attempt to meet their burden of proof."  The court therefore vacated the order denying the motion to suppress, and rendered an acquittal.

Now for the schadenfreude . . .

Read more »

No Error In Letting Government Amend Indictment to Conform Serial Number of Gun Alleged to Gun Introduced at Trial

United States v. Midkiff, No. 07-30981 (5th Cir. Feb. 3, 2010) (Garza, DeMoss, Clement)

Although not otherwise breaking any new ground, this opinion does address one question that the Fifth Circuit hasn't previously addressed directly: is it a mistake of form or substance if an indictment alleging a gun crime alleges a serial number different from the one on the gun introduced at trial? (Hint: it's not substance.)

Midkiff also argues that his convictions for possession of a firearm in furtherance of a drug trafficking crime and possession of a firearm by a convicted felon should be reversed because the serial number provided in the indictment for the firearm at issue was not the same as the serial number for the firearm introduced as evidence at trial. He argues that the district court erred by permitting an amendment to the indictment after the close of all evidence, particularly when the government had knowledge of the discrepancy early in the trial, if not earlier, and failed to move to amend until evidence was closed.

Generally, indictments can only be amended by a grand jury. But, “[t]he form of an indictment may be amended without return to the grand jury so long as its substance remains the same,” such as by correcting a “misnomer” or mistake of form. Thus, the issue is whether the amendment to the serial number constituted a change in form akin to correcting a typographical error or a change in substance that impermissibly altered the indictment.

Although we have never addressed this question directly, precedent from this circuit and others suggests that the particular attributes of a firearm are not actual elements of the offense. . . .

We also have noted that “[a]n amendment will be allowed if a defendant’s rights are not affected and he is adequately apprised of the charges against him so that he is protected against surprise at trial . . . .” In this case, Midkiff has not contended that he was prejudiced either by the amendment itself, or by the district court’s decision to permit the amendment after the government had rested. He does not claim that he was surprised by the trial evidence, or that his ability to defend the charges was impaired in any way. Given that Midkiff has neither alleged nor shown prejudice, we find no abuse of discretion in the district court’s decision to allow the government to reopen its case to amend the indictment.

(cites omitted). Another way to say it would be: We find no error in permitting the Government to amend the indictment to conform to the evidence it actually introduced at trial.

Snark aside, it's hard to say how far this holding would extend, since the opinion doesn't explain the exact difference between the two serial numbers. If it's a matter of one digit (as in one of the cases from another circuit), then the holding makes sense. At the other extreme, a serial number from an entirely different gun (different type, manufacturer, etc.) would seem to be more than just a misnomer. Lots of hypos in between.

Revocation Sentence Vacated as Plainly Unreasonable; Panel Purports to Limit Holding to Cases "Indistinguishable . . . In All Material Respects"

United States v. Willis, No. 08-10018 (5th Cir. Mar. 24, 2009) (Jolly, Smith, Owen)

In 1998, Willis was convicted of two counts of being a felon in possession of a firearm. "The two counts were premised on Willis’s simultaneous possession of two firearms and were, therefore, multiplicitous in violation of the Fifth Amendment’s prohibition against double jeopardy." Unfortunately, Willis never objected to the indictment, and he did not raise the issue on direct appeal or in two subsequent § 2255 petitions.

After serving his sentences on the two counts---which ran concurrently---Willis commenced serving two concurrent terms of supervised release. He violated, and was revoked. Willis raised the multiplicity argument at the revocation hearing, asking that a sentence be imposed for just one of the revoked terms. The district court rejected Willis's argument, and sentenced him to two consecutive 24-month terms of imprisonment.

Willis appealed. He did not challenge the underlying convictions or sentences; as the court points out, "[i]t is by now well-established that a defendant may not use the appeal of a revocation of supervised release to challenge an underlying conviction or original sentence." Instead, Willis argued that the second of the two revocation sentences was unreasonable because it was multiplicitious.

The court held that the second sentence was plainly unreasonable (and, for that reason, declined for at least the second time "to decide whether to subject revocation sentences to the 'unreasonable' or the 'plainly unreasonable' standard of review"):

There is no question but that the second revocation sentence is multiplicitous in its own right. We do not hold, however, that the second revocation sentence is not a legal sentence. That revocation sentence stems from one of the two original sentences; that original sentence, which Willis has already served, remains undisturbed and therefore legal. If the original sentence is legal, then the revocation sentence, which depends upon it, is also legal. Our opinion does not question the revocation sentence’s legality.

We question instead the mere fact of the second revocation sentence, which would require that Willis serve two revocation sentences, consecutively, as a penalty for what all parties now agree was only one offense. The second revocation sentence would therefore have the practical effect of incarcerating Willis for an additional twenty-four months. We especially note that the original sentence, including the term of supervised release, was imposed to run concurrently. The fact of its multiplicity, although legal, is, under all circumstances present, plainly unreasonable.

Intriguingly, the court goes on to not only emphasize the narrowness of its holding, but also to "limit the precedential value of our holding to cases presenting indistinguishable facts in all material respects." Which of course prompts two questions: 1) Can a panel (or even the court sitting en banc, for that matter) do that? 2) Given the narrowness of the holding, is such a purported limit even necessary?

Cert Grant: Is Domestic Relationship an Element of "Misdemeanor Crime of Domestic Violence" Under § 922(g)(9)?

Today the Supreme Court granted cert in United States v. Hayes, No. 07-608, to consider whether, in order to qualify as a "misdemeanor crime of domestic violence" for purposes of 18 U.S.C. § 922(g)(9), the domestic relationship required by § 921(a)(33)(A)(ii) must be an element of the predicate offense.

As discussed here, Hayes, a Fourth Circuit opinion, answered that question "yes." That holding conflicted with the decisions of every other circuit that had addressed the question, including the Fifth Circuit. So if you haven't already been preserving this issue in light of the circuit split, you'll probably want to do so now.

As usual, SCOTUSblog has collected the filings here.

An Offer to Sell Drugs Is Not a "Controlled Substance Offense" Under Guideline §4B1.2(b); Interesting Discussion of Plain Error

United States v. Price, No. 07-40040 (5th Cir. Feb. 1, 2008) (Higginbotham, Davis, Smith)

We know from United States v. Garza-Lopez that an offer to sell drugs is not a "drug trafficking offense" under guideline §2L1.2. And we know from United States v. Gonzales that a Texas conviction for delivery of a controlled substance isn't categorically a §2L1.2 DTO because the definition of "delivery" applicable to the Texas drug statutes includes an "offer to sell." Price holds that the same thing goes for the "controlled substance offense" definition found in guideline §4B1.2(b), because it's substantively identical to §2L1.2's DTO definition.

That much of Price is unremarkable, since it's simply a straightforward application of Gonzales. The more important part of the opinion concerns the third prong of plain error review. And for that, we need some background.

Price was convicted of being a felon in possession of a firearm. The district court applied a base offense level of 24 under guideline §2K2.1(a)(2), which applies "if the defendant committed any part of the instant offense subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense." After all was said and done, the Guidelines slide rule spit out a range of 110 to 120 months. The district court sentenced Price at the bottom of the range.

Now as it turns out, one of Price's two priors was a Texas delivery of cocaine. His indictment for that offense alleged an offer-to-sell as one of the possible means of delivery, and the judgment didn't specify which means of delivery his guilty plea admitted. Price raised this on plain error review. Following Gonzales, the court of appeals held that the offense didn't constitute a CSO.

Absent the error, Price would have been looking at a Guidelines range of no more than 92 to 115 months. The court held that even though the 110-month sentence Price received was within that range, the error nevertheless affected Price's substantial rights, the third element of plain error. And on this point the court acknolwedged a "potential conflict" in the Fifth Circuit's pre- and post-Booker case law. Prior to Booker, the court held that there's no plain error if the district court could impose the same sentence on remand---an objective inquiry. After Booker, in United States v. Villegas, the court adopted a subjective approach, holding "that the question of substantial rights turns on 'whether the defendant can show a reasonable probability that, but for the district court’s misapplication of the Guidelines, [the defendant] would have received a lesser sentence.'"

The court here ultimately held that Price demonstrated “at least a reasonable probability that the district court would have imposed a lesser sentence if it had properly applied the Guidelines[,]” for two reasons: 1) although Villegas didn't involve overlapping ranges, the spread between the bottom end of the correct and erroneous ranges was greater in Price's case than it was in Villegas, and there was plain error in Villegas; and 2) the district court here imposed the low end of what it erroneously believed to be the correct range. The court added that "with more of an overlap between correct and erroneous sentencing ranges, we would face a closer question of 'substantial rights' and would have to address the potential conflict between the pre- and post-Booker objective verus subjective inquiries that we raised in Jones. We leave that for another day."

Jury Unanimity as to Gun Not Required Under 922(g); TSR Condition Requiring Compliance with State Sex Offender Registration Laws OK

United States v. Talbert, No. 06-31233 (5th Cir. Sept. 25, 2006) (Higginbotham, Garza, Benavides)

Although brief, this opinion breaks new ground for the Fifth Circuit on two important issues: 1) whether the felon-in-possession statute, 18 U.S.C. § 922(g), requires jurors to unanimously agree that the defendant possessed a particular gun, and 2) whether a district court may order a defendant to comply with a state sex offender registration scheme as a condition of supervised release.

Gun Unanimity Under § 922(g)
Talbert's indictment alleged that he possessed two guns which were found in his car on the night of his arrest. At trial, the court instructed the jury, over Talbert's objection, that

[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.

On appeal, Talbert argued that this instruction

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.

The court rejected Talbert's argument, adopting the reasoning of the First Circuit's decision in United States v. Verrecchia:

1. § 922(g) refers to "any firearm," suggesting that "any firearm" is the element and the particular firearm is the means;
2. the statutory structure and legislative history focus on felon status rather than the number of guns possessed;
3. "Usually, the only issue under § 922(g)(1) is whether the defendant possessed a gun, so there is little risk that jurors will ignore underlying factual detail."; and
4. other courts, including the Fifth Circuit, have held that unanimity on a particular firearm is not required under § 924(c).

Requiring State Sex Offender Registration as a Condition of Supervised Release
"At sentencing, the district court voiced concern about Talbert’s lengthy and serious prior criminal history, particularly his two state convictions for sex-related offenses." After asking Talbert whether he'd ever been required to register as a sex offender under state law, the court stated that it was "reserv[ing] to the probation department the right to order him to do that[.]" The written judgment "included as a 'Special Condition' of supervised release that Talbert 'shall register as a sex offender under state law if required to do so.'"

On appeal, Talbert challenged the condition itself, as well as the district court's delegation to the probation officer. The court rejected both arguments. It construed the written condition as a requirement that Talbert obey the law, which a district court may include as a condition of supervised release. (It left open the question of whether a court can required a defendant to register as a sex offender in the absense of state law requiring such registration.) As for the delegation question,

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.

We'll leave for another day the question of whether application of a state sex offender registration scheme is as mechanical and straightforward as the court believes, not to mention the troubling separation-of-powers concerns raised by the grant of investigatory and quasi-prosecutorial duties to an agency within the judicial branch.

Circuit Split On Whether Possession of Sawed-Off Shotgun Is An ACCA Predicate

As you're likely aware, the Armed Career Criminal Act requires a 15-year mandatory minimum prison sentence for those convicted of being a felon-in-possession and who have three prior convictions for a "violent felony" or a "serious drug offense." The ACCA defines "violent felony" to include, among other things, felonies that "involve[] conduct that presents a serious potential risk of physical injury to another." (The so-called "otherwise clause" found in 18 U.S.C. § 924(e)(2)(B)(ii).) Until recently, according to the Sixth Circuit's decision in United States v. Amos, every circuit to have considered the question, including the Fifth Circuit, has held that possession of a sawed-off shotgun qualifies as a violent felony under the ACCA's otherwise clause.

The harmony, like a clay pigeon, has been shattered. With its 2-1 decision in Amos, the Sixth Circuit creates a circuit split by holding that possession of a sawed-off shotgun is not an ACCA violent felony. The court reasons that simply possessing a firearm, even a sawed-off shotgun, is not itself conduct that presents a serious potential risk of physical injury to another. A concurrence adds that the Supreme Court's decision in Leocal v. Ashcroft, which considered the slightly narrower language found in 18 U.S.C. § 16(b)'s crime-of-violence definition, also supports the court's holding. The dissent essentially argues that the only reason to possession a sawed-off shotgun (described colorfully as a "gangster-type" "weapon of war") is for criminal purposes, thus presenting the requisite serious potential risk of physical injury to another.

Now that we've got a circuit split on the issue, you may want to consider preserving it should it arise in any of your cases. Note that the issue isn't confined to ACCA cases. The guideline definition of "crime of violence" in §4B1.2(a) is nearly identical to the ACCA's "violent felony" definition, including the otherwise clause. So it's an issue there, as well. (In fact, that's the context in which the Fifth Circuit first addressed the issue: United States v. Serna, 309 F.3d 859 (5th Cir. 2002).)

For further discussion of Amos, head on over to the Volokh Conspiracy.

Whether Specific Unanimity Instruction Is Required When Single 922(g) Count Alleges Multiple Firearms Must Be Determined On Case-By-Case Basis

United States v. Villegas, No. 06-20165 (5th Cir. July 25, 2007) (per curiam) (Jones, King, Davis)

Villegas was charged with being a felon in possession of a firearm, in a count that alleged nine different firearms. At trial, he requested that the court instruct the jury that it must make a unanimous finding as to at least one of the nine firearms. The court denied the instruction, and Villegas was convicted.

Villegas pressed that issue on appeal. The court observed that "[a]lthough the right to a jury trial carries with it a right to a unanimous verdict, absolute factual concurrence is not mandatory and, indeed, would be unworkable[,]" and that "[t]he duty of the court is to determine which facts are necessary to constitute the crime and to require consensus on those facts." Thus, the question of whether unanimity is required as to the factual basis for a conviction is a question that must be answered on a case-by-case basis after consideration of several factors from Richardson v. United States, and United States v. Correa-Ventura. Those factors include:

• "statutory language and construction, legislative intent, historical treatment of the crime by the courts, duplicity concerns with respect to defining the offense, and the likelihood of juror confusion in light of the specific facts of the case"
• "the risk that allowing the jury to avoid addressing specific factual details will cover up disagreement among the jurors about the defendant’s conduct, or that the jury might convict based on evidence that generally paints the defendant in a bad light rather than focusing on the facts of the case"
• "whether defining a crime that allows a jury to convict while disagreeing about means 'risks serious unfairness and lacks support in history or tradition'"

The court held that in this case, the Richardson-Correa-Ventura factors did not require a specific unanimity instruction. First, the text of the statute and its legislative history place the emphasis on the type of person who is prohibited from possessing a firearm, not on the firearm itself. Second, "simultaneous possession of multiple firearms has been treated uniformly as a single offense regardless of the number of weapons involved[,]" thus assauging duplicity concerns. Finally, given the facts of the case, there was little likelihood that the jurors would be confused, that they would disagree about Villegas's possession of a firearm (mitigating any disagreement about a particular firearm), or that they "would ignore underlying factual details and convict on an improper basis."

Although a specific unanimity instruction wasn't required here, the court made a point of saying that "[w]e do not mean to suggest, however, that such an instruction is never required in a § 922(g) case, and we decline to speculate as to which factual scenarios might require such an instruction." Note that the opinion doesn't flesh out the facts of this case in great detail, so there should be ample room to argue for such an instruction in other cases.

More 404(b) Goodness: Admission of Unproven, Extrinsic Evidence of Defendant's Involvement with Drugs Reversible Error in FIP Case

United States v. Sumlin, No. 05-51720 (5th Cir. June 15, 2007) (Smith, Barksdale, Dennis)

Sumlin was tooling along in a red Corvette outside of Marlin, Texas when he passed a marked police car driven by an officer who was "looking for persons that are trafficking large amounts of illegal drugs down the highway." The rest practically writes itself: The officer pulled Sumlin over for not having a front license plate. One thing led to another and the officer arrested Sumlin for driving with a suspended license. While waiting for a tow truck to impound the car, the officer searched the Corvette and found a loaded 9mm handgun and what the officer believed to be a partially smoked marijuana cigarrette. Later, at the impound lot, a dog alerted on the 'Vette, but no drugs were ever found in the car. The government never tested the suspected marijuana.

Sumlin happened to be a felon, so he was charged with being a felon in possession of a firearm. He went to trial, where this transpired:

At trial, the government called Sergeant Kingsley, the arresting officer, who testified as to the circumstances of the stop and arrest and his drug interdiction efforts generally. Additionally, he testified that he suspected that Sumlin was transporting narcotics, because: (1) the body of Sumlin’s car had several loose or worn screws, which, according to Kingsley, indicated the possible transportation of large quantities of illegal drugs, as traffickers frequently hide drugs in the bodies of their vehicles to prevent law enforcement detection; (2) he spent some time with the car on the side of the road attempting to remove the speakers to see if anything was hidden beneath them; (3) he questioned Sumlin about the friend Sumlin had called to retrieve his car, because, according to Kingsley, drug couriers, i.e., those who transport large quantities of drugs and money, travel in pairs; (4) though he found only one cigarette, allegedly containing marijuana, he thought that he would find more drugs; (6) he followed Sumlin’s car to the impound lot and contacted the district attorney who came there to assist in drafting a search warrant for the undercarriage of the car; (7) the canine unit came to the lot and the dog alerted on the front and driver’s side of the vehicle; and (8) he questioned Sumlin about drugs when Sumlin was brought from the jail to the impound lot.

After hearing this testimony, the judge threatened to declare a mistrial. Nevertheless, for reasons not explained in the opinion, the trial continued. When Sumlin put on his case he called his mother as a witness, and she testified that it was her gun and she'd left it in the Corvette the day before Sumlin's arrest.

Things took another unusual turn after the jury found Sumlin guilty. Sumlin was facing a 15-year mandatory minimum, and an advisory guideline range of 235 to 293 months. Over the Government's objection, the district court sua sponte departed downward to 24 months.

The Government appealed the sentence. Sumlin cross-appealed, arguing, among other things, that the district court erred in admitted the arresting officer's drug-suspicion testimony.

The court of appeals agreed with Sumlin that the officer's testimony was inadmissible under FRE 404(b) and that the error was not harmless. It first rejected the Government's res gestae contention that the drug-suspicion testimony was intrinsic evidence, and therefore not governed by 404(b) in the first place. The court held that it was extrinsic evidence, and squarely within the purview of 404(b), because 1) the Government didn't prove that Sumlin actually transported drugs, and 2) this wasn't a situation where "the evidence of the charged and uncharged offenses were both part of a single criminal episode" since "[t]he testimony discussed events far beyond the time period relevant to Sumlin’s possession of the firearm."

Since 404(b) covered the testimony, the court went on to apply the Beechum two-step (relevance to issue other than character, and 403 balancing). At step one the court "first address[es] the threshold question of whether the government offered sufficient proof that the defendant committed the alleged extrinsic offense." The evidence here was "clearly insufficient to prove the other crime, wrong, or act of drug transportation."

[T]he officer’s casual testimony regarding the untested partially-smoked cigarette found in the Corvette’s ashtray might barely support a conclusion that it was his and contained marijuana, but it was clearly insufficient to prove any of the other essential elements of unlawful drug transportation, e.g., that Sumlin transported such drugs with the intent to manufacture, distribute, or dispense any controlled substance. See e.g., 18 U.S.C. § 841 et seq. Therefore, because the proof of the extrinsic act of drug transportation is insufficient, it is relevant only to the defendant’s character and should not have been admitted. Thus, we need not move on to the second step under Beechum.

Finally, the court concluded that the error in admitting the testimony was not harmless because it was a close case and drug evidence is especially prejudicial. The court therefore reversed Sumlin's conviction.

Upward Variance Based on Defendant's Arrest Record Plain Error, But Not So Bad That It Requires Reversal

United States v. Jones, No. 06-30855 (5th Cir. June 15, 2007) (Smith, Benavides, Dennis)

Just a week after being placed on probation in Louisiana state court for attempted possession of crack with intent to distribute, a felony, Jones was caught with a gun. He pled guilty in federal court to a felon-in-possession charge, and was looking at a guideline range of 30 to 37 months (17, III). At sentencing the district court advised the parties that it was considering an above-guideline sentence, and granted a continuance for the parties to submit memos on the matter. "In its memo, the government did not argue for a sentence outside the range." When the sentencing hearing resumed, the district court imposed a non-guideline sentence of 60 months on the grounds that Jones's "extensive arrest record indicates to me that his criminal history category probably or clearly understates the significance of his past criminal conduct" and was evidence that Jones had "some kind of fascination with guns."

Jones appealed his sentence, naturally "arguing that the court erred in considering his arrest record at sentencing." Unfortunately, Jones didn't object in the district court and therefore failed to preserve the issue. So the court of appeals reviewed for plain error.

The court had no trouble concluding that there was error and that it was plain. After all, guideline 4A1.3(a)(3) flat out says that "[a] prior arrest record itself shall not be considered for purposes of an upward departure," and the record clearly showed that the district court based the above-guideline sentence on Jones's arrest record. The court assumed for the sake of argument that the error affected Jones's substantial rights,* but concluded, unconvincingly, that the error did not affect the fairness, integrity, or public reputation of judicial proceedings:

Neither party disputed that Jones had a history with guns, and the court was “particularly disturbed” by Jones’s possession of a gun little more than a week after a state court felony conviction. The court engaged in a lengthy discussion of the defendant’s criminal history and the offense characteristics, and it addressed the arguments raised by defense counsel. Finally, the court sought to align Jones’s sentence with similarly situated defendants, and it sentenced Jones in line with United States v. Smith, 440 F.3d 704 (5th Cir. 2006), in which we upheld a larger departure to sixty months for a felon-in-possession charge. Our respect for the district court’s diligent effort at the sentencing hearing is not undermined by its unnecessary discussion of Jones’s arrest record.

*(The court "noted that this circuit has applied two different tests to determine whether an error in sentencing affected substantial rights." The "objective" test says "that error affects substantial rights only if the district court cannot impose the same sentence on remand." The "subjective" test, on the other hand, "states that error affects substantial rights where there is a reasonable probability that, but for the error, the court would have imposed a lesser sentence." The court didn't pick a horse in this dispute, because of the way it handled the fourth prong of plain-error review here.)

TX Poss'n of Controlled Substance With Intent to Offer to Sell Not a §2L1.2 "Drug Trafficking Offense" or a §4B1.2(b) "Controlled Substance Offense"

United States v. Ford, No. 06-20142 (5th Cir. May 24, 2007) (Davis, Dennis, Prado)

Recall that the Fifth Circuit recently held in United States v. Gonzales that the Texas offense of delivery of a controlled substance is not categorically a "drug trafficking offense" for purposes of U.S.S.G. §2L1.2(b)(1)(A) & (B). That's because the definition of "deliver" applicable to the Texas drug laws includes mere offers to sell drugs, and offers to sell fall outside the §2L1.2 definition of "drug trafficking." "Okay," you say, "instead of an actual offer to sell, what about possession with intent to offer to sell? Is that 'drug trafficking?'" Ford holds it's not.

The question in Ford is actually whether the Texas offense is a "controlled substance offense" under U.S.S.G. §4B1.2(b), rather than a "drug trafficking offense" under §2L1.2. But since the §4B1.2(b) CSO definition is virtually identical to the DTO definition found in Application Note 1(B)(iv) of §2L1.2, the court acknowledges that cases holding that offers to sell don't constitute §2L1.2 DTO's are equally applicable to the §4B1.2(b) CSO question. (That seemingly minor point is important because it means that you have to be aware of this issue not only when it comes to illegal reentry offense level calculations, but also anywhere that the §4B1.2(b) CSO definition comes into play (including §2K2.1 base offense level determinations, the career offender and armed career criminal guidelines, and possibly others).)

The court went on to conclude that if an offer to sell is not a DTO or a CSO (and Garza-Lopez and Gonzales say it's not), then it logically follows that possession with intent to offer to sell isn't either. The possession doesn't affect the analysis: "[W]hether or not possession is implicated, the operative element of 'intent to deliver,' per Gonzales, is still broader than intents found in the 'controlled substance offense' definition as 'deliver' includes an offer to [sell]. Since this operative intent element is broader, the whole conviction, regardless of the possession element, is broader than the 'controlled substance offense' definition."

Post-Verdict Judgment of Acquittal Reversed

United States v. Hope, No. 06-60131 (5th Cir. May 15, 2007) (Jones, Jolly, Stewart)

Let's say the Government charges you with being a felon in possession of a firearm, alleges that you were previously convicted of a particular felony offense, introduces documents at trial which show that you were convicted of that offense, and the jury finds you guilty. But in fact, you were never convicted of the felony that the Government alleged and proved. Instead, you were convicted of some other felony offense. Are you entitled to a judgment of acquittal? Apparently not, at least not in the circumstances present in Hope.

Hope was charged with being a felon in possession of a firearm. The predicate felony alleged in the indictment was an aggravated assault conviction from Mississippi. At trial, the Government introduced a certified state court judgment showing that Hope had been convicted of that offense. Hope did not object. After being found guilty, new counsel was appointed for Hope. His new attorney reviewed the state court transcript from his prior conviction, and discovered that the aggravated assault charge had been dismissed and that Hope had actually pled guilty to strong-arm robbery. Hope therefore filed a motion for new trial, which the district court construed as a renewed Rule 29 motion for judgment of acquittal. The district court granted the motion on the ground that Hope was not in fact convicted of the prior felony alleged in the indictment and proven at trial.

The court of appeals reversed the judgment of acquittal, although it's hard to tell exactly why. So rather than attempt to summarize the court's reasoning, I'll just quote it in full:

Hope’s argument for acquittal was that, based on the transcript of the Mississippi proceeding, the evidence was insufficient to convict him of being a felon in possession. Hope argues that “no evidence of a valid conviction was ever presented at trial,” because the indictment charged Hope with having been convicted of aggravated assault, which the transcript proved was not true. Thus, Hope says, neither the grand nor petit jury has ever been presented with evidence that he had a valid prior felony conviction, and consequently because the evidence introduced at trial does not support a verdict of guilty, the district court did not err in granting a judgment of acquittal under Rule 29.

We cannot agree. First, the indictment alleged that Hope had been convicted of a qualifying felony and it listed the particular cause number and date of his conviction, none of which is disputed. There is no variance between the evidence introduced and the crime charged in the indictment. The only variance exists between the official record of the state trial and the state transcript introduced in federal post-trial proceedings. Hope makes no argument that he was uncertain to which felony conviction the indictment referred; although at some point in the trial he apparently said that he did not plead guilty to aggravated assault, he never denied that he had pled guilty to a felony in the same case and case number alleged in the indictment. Second, the evidence that the government introduced at trial, namely the official Mississippi judgment order, supported the indictment in every particular. Hope’s trial counsel did not object to the introduction of this evidence nor did he otherwise contest the fact that Hope had been convicted of a qualifying felony. Finally, it is clear that, irrespective of whether the crime was denominated as aggravated assault or strong-arm robbery, Hope was in fact convicted of a qualifying felony --specifically in the same case and case number that was reflected in both the certified judgment and the indictment. As noted, the record further shows that Hope was aware that this conviction made it a federal crime for him to possess a firearm in interstate commerce. He signed a form to this effect on August 28, 2000, four days after his guilty plea in state court.

. . .

We thus conclude: The only question in reviewing the district court’s grant of the Rule 29 motion is whether the evidence introduced at trial and upon which the jury based its verdict is sufficient to support the crime charged in the indictment. A federal crime was correctly charged in the indictment; the government proved the crime charged with competent evidence, that is, an unobjected-to, certified state court judgment. Such evidence is sufficient to support the crime charged in the indictment and the guilty verdict the jury returned based on that evidence. Thus we hold that the district court erred in entering a judgment of acquittal in response to Hope’s oral Rule 29 motion. If Hope is entitled to relief, he must pursue a different procedural course in order to achieve it. For the foregoing reasons, the district court’s judgment is REVERSED, Hope’s conviction is hereby REINSTATED and the case is REMANDED for sentencing.

I invite any readers who can decipher this holding to weigh in with a comment.

Prior Felony Conviction for Burglary of Vehicle Qualified as § 922(g) Predicate, Even Though Offense Is Now Only a Misdemeanor

United States v. Schmidt, No. 06-10525 (5th Cir. May 16, 2007) (Garwood, Smith, DeMoss)

In 1985, Schmidt was convicted of burglary of a vehicle in Texas state court. The offense was a third degree felony at the time, but in 1993 the Texas legislature reduced it to a Class A misdemeanor. At some point after that Schmidt was charged with and convicted of being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1), with the vehicle burglary conviction serving as the predicate felony. Schmidt raised three challenges to his FIP conviction, all of which the court rejected.

First, "Schmidt argue[d] that because, at the time of the events giving rise to his § 922 offense, burglary of a vehicle was not punishable by a term of more than one year, it cannot properly be a predicate offense." The court initially acknowledged that "[t]his case turns on what point in time is used to measure the incarceration term of the predicate offense." (Schmidt obviously argued that it's at the time of the firearm possession giving rise to the alleged § 922 offense, while the Government argued that it's at the time of the predicate felony.) But then the court says it doesn't need to resolve that question because of a non-retroactivity clause in the legislation that reduced burglary of a vehicle from a felony to a midemeanor. That clause provides that the misdemeanor classification only applies if the offense is committed on or after September 1, 1994, which was the effective date of the amendment. So, according to the court, it doesn't matter whether you use the date of the prior offense or the date of the alleged § 922(g)(1) offense, because Schmidt's prior offense would have been punishable as a felony on either date since he committed the offense in 1985.

Schimdt's second argument was that "the plain language of [§922(g)(1)] requires the government to prove that he knew not only that he was possessing a firearm, but also that he was a felon." The Fifth Circuit has rejected this argument, both pre- and post-Staples, and rejects it again here.

Finally, "Schmidt urge[d, on the basis of Lopez, Jones, and Morrison,] that § 922(g)(1) is unconstitutional on its face, and as applied to him, because it does not require a 'substantial' effect on interstate commerce." This one was also foreclosed by Fifth Circuit precedent.