Firearm offenses

Published on: August 24, 2013

Government’s failure to prove element of offense results in reversal of illegal firearms deal conviction

The defendant in U.S. v Fries was convicted of transferring a firearm to an out-of-state resident which is a violation of federal criminal laws when neither the seller nor the buyer was a licensed firearms dealer. 18 U.S.C. 922(a)(5) make a crime for a seller to sell a weapon to a nonresident, if neither the seller or the buyer are licensed dealers. Fries was arrested when ATF agent, posing as a Georgia resident, purchased a gun from Fries, non-licensed seller, at a Gun and Knife show in Tallahassee, Florida. Fries was convicted following a trial, but at the close of the government’s case his attorney did not file a motion for judgment of acquittal, nor did he filed one at the close of all the evidence, or in a post-trial motion. Fries filed a notice of appeal, and subsequently his attorney filed a motion to withdraw and an Anders brief, arguing that the record revealed no arguable issue of merit. The court of appeals denied the motion and ordered briefing on an issue relevant to this decision: Whether the evidence was insufficient to convict when no evidence was presented as to whether the buyer of the firearm was a licensed dealer.

For this reason, the issue raised by the defendant on appeal was the sufficiency of the evidence. To convict, the government must offer evidence on these four elements: 1) the defendant was not a licensed firearms dealer, importer, manufacturer or collector; 2) the defendant sold, transferred, traded or gave to another person; 3) the person to whom the defendant transferred the firearm was not a licensed importer, manufacturer, dealer, or collector; and 4) the defendant knew or had reasonable cause to believe that the person receiving the firearm did not reside in the state of the defendant’s residence. Because Fries did not move for a judgment of acquittal or preserve the argument, the court of appeals held that it is required to find that either the record is devoid of evidence of an essential element of the crime, or “that the evidence on a key element of the offense is so tenuous that a conviction would be shocking.”

After combing the entire record, the court of appeals found no evidence that the person the defendant sold the firearm to did not possess a firearms license. The government argued the jury could find evidence the buyer was unlicensed from testimony between the defendant and various ATF agents in which Fries apparently demonstrated knowledge that it would be illegal to sell to a non-resident unless that person held a license. The court of appeals rejected this argument. Because Fries lacked personal knowledge of the buyers licensure status, the defendant’s subjective believe he was executing a transaction with an unlicensed person does not bear on the objective state of affairs as they existed at the time of the sale. There was no evidence that the undercover buyer was in fact an unlicensed buyer at the time of the sale. The court held the lack of evidence was not harmless error. Though there was no contemporaneous objection or motion at trial, permitting the conviction to stand where government failed to offer any evidence of an essential element of the crime, “would do great damage to the considerations of due process that the serve as a fundamental bulwark of our criminal justice system.”

Published on: June 1, 2013

Possession of a shotgun qualifies as a crime of violence under the sentencing guidelines

by The Swartz Law Firm

In U.S. v. Hall, the defendant pled guilty to the charge of possession of a handgun by a convicted felon. The district court enhanced his sentence after the court determined that a prior felony conviction for possession of an unregistered shotgun qualified as a crime of violence under the sentencing guidelines. The guidelines require an enhancement for a defendant who commits any part of the offense subsequent to sustaining one felony conviction of a crime of violence. The guidelines commentary states that the unlawful possession a firearm, such as a sawed off shotgun as described in Title 26 U.S.C. § 5845, is a crime of violence and inherently dangerous when possessed unlawfully.

Citing the Supreme Court’s decision in Stinson v United States, the 11th Circuit affirmed that a commentary in the sentencing guidelines manual which interprets or explains a guideline is authoritative, unless it violates the constitution, a federal statute, or is inconsistent with or a plainly erroneous reading of that guideline.

The sentencing guidelines defines a crime of violence as follows: an offense that has as an element the use, threatened use, or attempted use of violence or physical force; a burglary of a dwelling, arson, or extortion, involves the use of explosives; or otherwise involves conduct that presents a serious risk of physical injury to another. The court in recent precedent has elaborated on this “crime of violence” definition. An offence can be a crime of violence if it fits into one of three categories. The first is referred to the elements clause crimes, the second category includes the enumerated crimes of burlary of a dwelling, arson, etc. The third category is the “residual clause”, included those crimes that “otherwise involve conduct that presents a serious potential risk of physical injury to another.”

Published on: March 31, 2013

Challenge to the use of a Florida state court prior conviction to enhance sentence fails

by The Swartz Law Firm

In U.S. v. Gandy the defendant was convicted of possession of a firearm and sentenced to 180 months. His sentence had been enhanced under the Armed Career Criminal Act (ACCA) because he had been convicted of at least three prior violent felonies. In challenging the sentence he argued that the government failed to meet its burden of establishing that his convictions labeled aggravated assault on a law enforcement officer and the burglary of a structure were qualifying offenses using documents approved by the Supreme Court in Shepard v. U.S. He argued that the information and certified judgment of conviction cited only a sentence enhancement provision of the Florida Statutes and did not cite the substantive provision of the aggravated assault statute, the government has not sufficiently proven that his conviction was for that particular crime. The 11th Circuit disagreed and found the district court correctly concluded that the omission of an express citation to the Fla. Stat. § 784.021 (the substantive provision creating the crime of aggravated assault) was not fatal because the information and certified judgment establish that the defendant had pleaded guilty to aggravated assault on a law enforcement officer, the violent felony under ACCA. The certified judgment indicated that the defendant had pleaded nolo contendere to aggravate assault of a law enforcement officer which is the same offense that was charged in the information, making it clear he was convicted for aggravated assault. Furthermore, the court found the defendant had another conviction for simple vehicle flight that was a predicate conviction under the ACCA. The 11th Circuit recently held in U.S. v. Petite that a simple vehicle flight conviction under Florida state law qualifies as a violent felony under the residual clause of the ACCA (§924(e)).

The only argument that was not addressed in Petite, which the defendant raised here, was the unconstitutionally of the residual clause of the ACCA. The 11th Circuit rejected the vagueness argument on the grounds that the Supreme Court already determined that the residual clause, although at times is “difficult for the courts to implement, falls within congressional power to enact and constitutes an intelligible principle that provides guidance that allows a person to conform his or her conduct to the law.” (Though Judge Scalia’s dissent suggested the statute is unconstitutional.) The 11th Circuit cited six other circuits that have upheld the constitutionality of the ACCA residual clause and no circuit has gone the other way.

The defendant also challenged his sentence on the grounds that the magistrate judge who accepted the plea erred in advising him that the maximum penalty would be 10 years in prison. The 11th Circuit rejected the claim because the district court noted that he entered the plea with the incorrect understanding, the district court explained that it was an error and correctly advised him of the mandatory minimum sentence of 15 years. He gave the defendant a chance to back out of the plea and he said he did not wish to withdraw the plea.

Published on: March 25, 2013

A defendant may be eligible for a safety valve reduction for a drug offense when receiving a 2-point increase for possession of a gun but it will be difficult

by The Swartz Law Firm

In U.S. v. Carrillo the 11th Circuit dealt with question whether a defendant convicted of a drug offense and receiving a 2-point guidelines increase for the possession of a firearm can be eligible for a safety valve reduction. The court ruled that that the provisions are not mutually exclusive but it will be a difficult for a defendant to qualify for a safety valve. Defendant Carrillo pled guilty to the federal crime of conspiracy to sell methamphetamines and one count of being an illegal alien in possession of a firearm in violation of 18 U.S.C. § 922(g). Through an undercover agent, Carrillo sold a variety of firearms. Eventually, the defendant began to sell the agent quantities of methamphetamines, but he continued to sell the agent more firearms. One time the defendant sold the agent a shotgun and some methamphetamines on the same day. The PSI recommended a two point enhancement under USSG §2D1.1(b)(1) a dangerous weapon was possessed under relevant conduct. The defendant argued for safety valve eligibility because there was no connection between his sale of methamphetamine and his sale of firearms. Title 18 U.S.C. §3553(f)(1) and USSG §5C1.2(a)(2) (“safety valve”) provides for relief from the mandatory minimum 60 month sentence if a defendant meets five criteria. One of the criteria requires the defendant show he did not use violence or possess a firearm or other dangerous weapon “in connection with the offense.” Carrillo met the other 4 criteria of the safety valve provision but the district court found he did not qualify under this provision because of the incident where he sold the agent a rifle and a bag of drugs on the same day.

In this case of first impression in the 11th Circuit the court focused on the interpretation of the language “in connection with the offense.” No definition or explanation was provided in the guidelines or the statutes. The court rejected the government’s argument that Carillo was automatically not eligible for the safety valve because his he received 2 points under §2D1.1 (b)(1) for the possession of a firearm. The court concluded the sentencing guidelines did not intend for this result because §2D1.1 (b)(1) imposes a 2-point increase if “a weapon was possessed” and not “if a weapon was possessed in connection with the offense.” A 2-point increase for firearm does no automatically exclude eligibility for safety valve; nevertheless, a defendant seeking relief under the safety valve will have a “difficult task” to show that there is no connection with the drug offense. Where the firearm is not in proximity to the drugs, the 11th Circuit found the determination of whether there was a “connection” with the drug offense depended on whether the firearm “facilitated or had the potential to facilitate” the drug offense. Under the facts of Carrillo’s case, defendant was not eligible for the safety valve because the sale of guns did facilitate the drug offense. The firearm transaction “greased the wheels” for the drug sales to take place. The guns sales created trust and established relationship before the drug sales could occur.

Published on: January 31, 2013

Though it seems obvious, the 11th Circuit decided that a conviction for firing a gun in the direction of a helicopter was a crime of violence

by The Swartz Law Firm

In U.S. v. McGuire, the defendant challenged the sufficiency of the evidence to support his conviction of attempting to damage, destroy, disable, set fire to, or wreck an aircraft in the special aircraft jurisdiction of the United States in violation of 18 U.S. C. §32(a)(1). After McGuire shot of several rounds of a gun near his driveway, neighbors called police, who responded with officers on the ground and a police helicopter. As the helicopter shined its spotlight in McGuire’s direction, McGuire raised his arm and fired one round in the sky. A deputy saw him fire in the direction of the spotlight as the helicopter orbited and another witness said he fired in the general direction of the helicopter. McGuire said he went outside to fire into the sky randomly without meaning to hit the helicopter and not knowing it was in the sky, but witnesses contradicted his testimony by attesting to the noise and vibrant light the helicopter produced. McGuire argued the the deputy’s testimony was inherently incredible and that a reasonable person would believe it beyond a reasonable doubt because McGuire stood still without moving to follow the helicopter’s path or tacking it as he fired. The 11th Circuit found McGuire’s argument is simply disputing the inference a jury can draw from the evidence, and the inferences have to be drawn in favor of the jury verdict.

The 11th Circuit also upheld district court’s finding that the offense of attempting to damage destroy, disable, or wreck an aircraft is a crime of violence for the purpose of 18 U.S.C. 924(c)(1)(A), which imposes a consecutive sentence for anyone using a firearm in connection with a crime with a crime of violence. The court used the “categorical approach” because § 924 defines a criminal offense as “an offense” that “has as an element the use, attempted use or threatened use of physical force against the person or property of another” or “by its nature, involves a substantial risk that physical force against the person or property of another may be used.” The categorical approach must reference the elements of the offense and not the actual facts of McGuire’s conduct, and for this reason, even though firing a gun at a helicopter is unmistakably violent, the categorical approach requires the court to determine whether the crime, in general, plausibly covers any non-violent conduct. “Only if the plausible applications of the statute of conviction all require the use or threatened use of force can McGuire be held guilty of a crime of violence.”

The 11th circuit found that a federal jurisdictional element of the statute requires that the aircraft be “in flight” which is defined as encompassing the time the moment all external doors are closed following boarding through the moment when one external door is opened to allow passengers to leave.” In other words the conviction was for attempting to damage or disable an aircraft that was either flying or ready to take off or arriving at its destination. In that context the offense was offense necessarily involved the attempted or threatened destruction of sensitive property or lives and was a crime of violence.

Published on: January 10, 2013

Defendent sentenced even after indictment was withdrawn

by The Swartz Law Firm

First, you need the background facts of McIntosh’s first trip to the 11th Circuit. In U.S. v. McIntosh, the defendant was indicted in federal court for distributing crack cocaine and for a firearm related offense. The charges arose from a November 2005 traffic stop when an officer found the drugs and a firearm in the car, but the indictment mistakenly alleged McIntosh committed the offenses in February 2007. The government discovered the mistake after McIntosh pleaded guilty to the charged offense but before his sentencing. To correct this mistake (which the 11th Circuit called a technical error regarding the date of the offense) the government obtained a second indictment alleging the correct date and filed a motion to dismiss the original indictment, which the district court granted. McIntosh entered a conditional plea to the new indictment and reserved his right to appeal the conviction on double jeopardy grounds, and he appealed that sentence. In that appeal (McIntosh I) the 11th Circuit agreed that the second indictment violated the Double Jeopardy Clause of the Constitution because jeopardy attached when the district court accepted the plea on the first indictment and accepting the plea was a conviction. In McIntosh I, the 11th Circuit held the dismissal of the original indictment did not vacate the conviction, so the Double Jeopardy Clause prohibits a second prosecution for the same offense and remanded with instructions to dismiss the second indictment.

After the district court dismissed the indictment the government moved to set McIntosh’s sentencing based on his plea to the original indictment. McIntosh objected on Double Jeopardy grounds and argued the court lacked jurisdiction. He also moved to withdraw his plea. These motions were denied and he was sentenced to 120 months.

In this appeal, which is Mcintosh’s second time on appeal, the 11th Circuit rejected his Double Jeopardy challenge. It found that the dismissal of the original indictment did not terminate his case because the original prosecution did not end. The sentencing that proceeded after his guilty plea could not be characterized as a second prosecution nor was it a second punishment for the same offense.

Published on: January 4, 2013

The crime of intentional flight from a police car is a violent felony under the ACCA enhancement clause

by The Swartz Law Firm

Happy New Year everybody. Sandra Day O’Connor, retired Supreme Court Justice participated on the panel for U.S. v. Petite, the first criminal decision for 2013 from the Eleventh Circuit. Judge Marcus wrote the opinion. In U.S. v. Petite the defendant was indicted in a federal court in Florida with federal crime of possession of a firearm by a convicted felon in violation of 18 U.S.C. 922(g). At sentencing the pre-sentence report qualified him for an enhancement under the Armed Career Criminal Act (A.C.C.A) 18 U.S.C. 924(e) because he had three predicate prior felony convictions that were used to apply the enhanced sentence under the guidelines, giving him a range of 188-235 months. The one predicate conviction Petite challenged was a conviction for intentional vehicle flight from a police car in violation of Florida statutes. The Eleventh Circuit upheld the district court’s decision finding the prior conviction is a violent felony under the ACCA based on the Supreme Court’s decision in Sykes v. U.S. which held that a similar conviction under the Indiana vehicle flight offense was a violent felony for ACCA purposes dictated the outcome of this case.

The ACCA provides for a fifteen year minimum enhancement for a violation of the felon in possession statute if the person has three prior felony convictions for a crime of violence or serious drug offense. The provision has three basic categories of qualifying offenses. The first two categories involve specific enumerated offenses, and the vehicle flight conviction did not fall under the first two categories. The third category, the one at issue here, is the residual clause. It consists of those crimes not otherwise enumerated in the statute, which “involve conduct that presents a serious potential risk of physical injury to another.” 924(e)(2)(B)(ii).

Under Supreme Court precedent, court applying the ACCA residual clause to determine whether a prior conviction is a crime of violence must use what the court calls the “categorical approach,” whereby the court must look to the fact of conviction and the statutory definition of the prior offense, and not consider the particular facts disclosed by the record of the conviction. In other words the court must consider whether the elements of the offense are of a type that would justify its inclusion within the residual provision, without inquiring into the specific conduct of the particular offense. Using this approach, the Eleventh Circuit rejected Petite’s attempt to distinguish Sykes by distinguishing the facts surrounding Sykes’ conviction from the detailed facts surrounding his vehicle flight.

Published on: December 22, 2012

More than just voting rights must be restored for a person to be eligible to possess a firearm under federal law prohibiting possession by felons

by The Swartz Law Firm

In U.S. v. Thompson the defendant appealed the district court’s denial of his motion to dismiss the federal criminal charge in federal court of possession of a firearm by a convicted felon in violation of 18 U.S.C. §922(g) The defendant in U.S. v Thompson became a convicted felon following his conviction for first degree assault in an Alabama state court in 1994. As a convicted felon he lost the right to possess a firearm under federal law. He also lost the right to vote, the right to hold public office and the right to serve on a jury under Alabama laws. In 2005 he applied to the State of Alabama for restoration of his civil rights and received from the State of Alabama Board of Pardons and Paroles a Certificate of Restoration of Voter Registration Rights. It advised him that his right to vote had been restored in the State of Alabama. The certificate advised Thompson that the “certificate is not a pardon and does not restore, remove or address any other rights , privileges or requirements.” The State also informed him “this certificate serves only the function of allowing you to vote.”

Thompson challenged his conviction claiming that he should not have been convicted under §922(g)(1) because he argued his civil rights had been restored. Section 921(a)(20) excludes any conviction under this statute if the person has had “civil rights restored.” Because the statute does not clarify which civil rights must be restored, prior Eleventh Circuit cases have interpreted this to mean the civil rights must be “unreservedly” restored to qualify for the exception. The open question that was not yet resolved by the court was whether all civil rights must be restored or merely some of them, and if so, which rights. Here the question was whether the restoration of just voting rights is sufficient restoration of civil rights to qualify for the exception under the statute. The court has in the past ruled that the three key civil rights which must be restored to qualify under the statute are: 1) the right to vote, 2) the right to serve on a jury, and 3) the right to hold public office. The Eleventh Circuit relied on a majority (six) of the other circuits that interpret “civil rights” as plural and require more than of these three key civil rights be restored to satisfy the statutory exception to the prohibition of possession of a firearm by a convicted felon. Though Thompson’s voting rights includes several rights, including the right to vote in federal elections, state elections, and the right to vote in primaries, Thompson only had one of the key civil rights restored. The restoration of only one of these key rights does not satisfy the language of §921(a)(20). The restoration of the right to vote by itself was insufficient to satisfy the exception. This issue will likely be seen in Miami and other areas of Florida where persons often try to restore their civil rights after a felony conviction.

The Eleventh Circuit also resolved a subject matter jurisdiction question. Thompson entered into an unconditional plea and raised the issue after plea and before sentencing. The Eleventh Circuit found it was appropriate to address the matter. Normally a guilty plea acts as a waiver to all non-jurisdictional challenges to a conviction, challenges to subject matter jurisdiction in federal court cannot be waived. Thompson’s argument that the indictment fails to charge an offense that implicates the district court’s jurisdiction was not waived by his unconditional plea.

Published on: September 19, 2012

An unredacted indictment mistakenly sent to the jury showing the Defendant’s inadmissible prior convictions was harmless error according to the Eleventh Circuit.

by The Swartz Law Firm

In U.S. v. Dortch the Defendant was charged in federal court in Florida with the federal crimes of possession with intent to distribute marijuana and carrying and possessing a firearm in furtherance of a drug offense after a search warrant executed at the defendant’s house turned up traces of drugs and tools related to drug distribution (scales and boxes of sandwiches bags). The police found the two firearms in the bedroom and other locations of the house. The federal charges also included the possession of two specific firearms by a convicted felon. The indictment alleged eight of the defendant’s prior convictions, however the government was only allowed to introduce at trial 3 priors because 5 were too old or prejudicial.

The trial court sent a copy of the indictment to the jury unaware it sent the unredacted copy containing reference to the 5 prior inadmissible convictions. One of those was a 1987 conviction for selling marijuana that was identical to one of the charged offenses.

The Eleventh Circuit found that giving the jury the unredacted indictment was harmless error. The government presented an overwhelming case that the defendant possessed a firearm as a convicted felon. The government also presented a strong case that he possessed marijuana with the intent to distribute.