Federal Criminal Lawyer Blog

A recent case out of Alabama addressed the intersection between gun possession and having the right to vote restored after an earlier felony conviction. As just about everybody knows, a person convicted of a felony usually loses some of their "civil rights", even if they never go to jail. The federal government makes it a separate crime if a previously-convicted felon possesses a firearm. Many states, however, have laws that quite sensibly restore a person's "civil rights". Another portion of the federal gun laws says that when a convicted felon's civil rights have been "restored", then the conviction does not count when deciding if the person violated the law prohibiting felons from having guns. Our beloved Eleventh Circuit Court of Appeals here in Atlanta decided that having a person's right to vote restored under Alabama law was not the same as having ones civil rights (plural) restored, so that the person could be convicted for possession of a gun after a felony conviction. The case is United States v. Thompson.

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

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

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

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

Federal criminal trials almost always involve the question of "knowledge", meaning that the prosecution is obligated to prove beyond a reasonable doubt that the Defendant "knew" about some fact. In US v. Vana Haile, the Eleventh Circuit here in Atlanta showed how the issue of "knowledge" can change, depending on the facts and the specific crime involved.

Mr. Vana Haile and another man named Beckford were charged with and convicted of conspiracy and attempt to possess with intent to distribute marijuana and cocaine and knowing possession of several firearms in conjunction with their drug trafficking offenses. One of the firearms crimes alleged that the Defendants possessed a machine gun. The government also alleged that a different crime was violated because one of the weapons had an obliterated serial number.

Concerning the machine gun, the Defendants claimed that the trial judge committed an error by failing to instruct the jury that they knew the firearm was a machine gun when they possessed it. The district court instead merely instructed the jury that they needed to find that each defendant “knowingly possessed” each firearm, including the machine gun. The Defendants argued that this instruction was insufficient because the jury was required to find, beyond a reasonable doubt, that the defendants knew the gun they possessed had the characteristics of a machine gun, relying on United States v. O’Brien 130 S. Ct. 2169, 2180 (2010). The Court of Appeals rejected this claim, holding that the Supreme Court merely held that whether a firearm was a machine gun was an element of the offense, rather than merely a sentencing enhancement. The Eleventh Circuit decided that the Supreme Court did not require that a defendant’s knowledge that a firearm is a machine gun must also be so proved.

The Eleventh Circuit reached a different result when it addressed the conviction of Mr. Beckford for knowing possession of a gun with an obliterated serial number. In a case of first impression in that Court, the Eleventh Circuit joined all other federal courts to address the question by holding that that knowledge of the obliterated serial number is an element of the offense. "Beckford must have possessed a gun with an obliterated serial number and known the number was obliterated." After making this legal ruling, the Court of Appeals then turned to whether there was enough proof that Beckford actually knew the serial number was obliterated. Usually, possession of a gun allows the jury to "infer" that the person possessing the firearm inspected it and should have know the serial number had been removed. However, in Mr. Beckford's case the evidence at trial was not sufficient to show that he possessed the gun for a period of time during which an ordinary man would have discovered that the serial number was obliterated. The court reversed Beckford's conviction for the following reasons: "Although the government established that Beckford discussed guns in general before the arrest and that agents found the gun in the flatbed of his truck (out of his reach) after the arrest, the government put forth no evidence that Beckford actually possessed the gun for any significant length of time. The government essentially proved only that Beckford had constructive possession of the gun at the time of the arrest. But this constructive possession alone cannot be sufficient to establish Beckford’s knowledge of the obliterated serial number because, if it was sufficient, the standard would eviscerate the knowledge element of [the statute] altogether."

Again, it is important to always challenge every aspect of the government's case when going to trial in federal court. Who "knows", the Court of Appeals might agree with the defense, as in Mr. Beckford's case.

This Monday the federal Supreme Court issued its opinion in Abbott v. United States, together with Gould v. United States. The Court held 8-0 (Justice Kagan took no part in the decision) that a defendant is subject to the highest mandatory minimum sentence specified in § 924(c) unless another provision of law directed to conduct proscribed by that subsection imposes an even greater minimum. We are disappointed that the Court disregarded the plain language of the statute.

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

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

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

The opinion in Abbott is available here.

Earlier this week, the Supreme Court granted certiorari in Davis v. United States. The Court will resolve a federal circuit court split: whether the good faith exception to the exclusionary rule applies to a search that is later ruled unconstitutional. This March, the Eleventh Circuit held in Davis that the exclusionary rule does not apply when the police conduct a search reasonably relying on well-settled precedent, even if that precedent is later overturned. We hope the Court reverses this decision.

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

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

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

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

The Eleventh Circuit’s opinion in Davis is available here.
The petition for certiorari is available here.
The brief in opposition is available here.

Last week, the Eleventh Circuit Court of Appeals issued its opinion in U.S. v. Ranier. In contrast to many recent cases in which the Court held that certain crimes were not “violent felonies” for the purposes of the Armed Career Criminal Act (ACCA,) the Court held in Ranier that the defendant’s prior conviction in Alabama for third degree felony burglary qualified as a predicate offense.

In the wake of Begay v. U.S., in which the Supreme Court held that “violent felonies” for the purposes of the ACCA must be similar in kind and degree to the crimes expressly listed in the statute, the courts have been hammering out which crimes do and do not qualify. We have discussed several of these cases in the following posts:
Harris (second degree felony eluding police with wanton disregard for safety is a violent felony, although third degree felony willful fleeing is not – 11th Cir.)
Lee (walkaway escapes are not violent felonies – 11th Cir.)
Chambers (failure to report is not a violent felony – Supreme Court)
Archer and Hunter (carrying a concealed weapon is not a violent felony – 11th Cir.)

The Court’s analysis in Ranier hinged on the elements of Alabama’s burglary statute and the specific facts of Mr. Ranier’s previous convictions. Burglary is a listed violent felony in the ACCA, but Alabama’s third degree felony burglary statute is broader than the “generic” burglary contemplated by the ACCA. In Alabama, a person can be convicted for burgling a vehicle, aircraft, or boat, so the Court held the statute “non-generic.”

After making the non-generic determination, the Court looked to Mr. Ranier’s specific convictions for burgling a gas station and a shoe store. Mr. Ranier argued that those businesses theoretically could have been operated out of vehicles, but the Court rejected that argument. “[T]hat possibility is too farfetched to undermine our conviction that Ranier’s two previous convictions were for burglary of a building in the generic burglary sense of the word. The Supreme Court has instructed us that the ‘ACCA does not require metaphysical certainty.’ The ACCA is part of the real world, and courts should not refuse to apply it because of divorced-from-reality, law-school-professor-type hypotheticals that bear no resemblance to what actually goes on.”

The Court’s opinion in U.S. v Ranier is available here.

In other ACCA-related news, we previously reported in this post that the Supreme Court had granted certiorari in Abbott v. U.S. and Gould v. U.S. Those cases, which involve mandatory minimums in federal firearms cases, have been scheduled for oral argument on October 4, 2010.

Last month, the Eleventh Circuit Court of Appeals held that 18 U.S.C. § 924(c), which makes it a federal crime to use or possess a firearm in connection with a crime of violence, can apply to crimes of violence committed outside the United States. In U.S. v. Belfast, the first case prosecuting an individual under 18 U.S.C. § 2340A (the Torture Act,) the Court upheld a § 924(c) conviction where the American citizen defendant tortured people in Liberia.

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

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

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

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

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

This Monday, the Eleventh Circuit held in Gilbert v. United States that, for federal sentencing purposes, the act of being a U.S.S.G. § 4B1.1 career offender is essentially a separate offense. Based upon the Supreme Court’s retroactive decision in Begay and the Eleventh Circuit’s implementation of that decision in Archer, Gilbert is actually innocent of committing two violent felonies, the basis for that offense. Because circuit law squarely foreclosed his claim when he raised it at sentencing, on appeal, and in his first 28 U.S.C. § 2255 motion, Gilbert was entitled to relief under 28 U.S.C. § 2241. He may now be eligible for immediate release.

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

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

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

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

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

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

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

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

We have discussed cases applying the Begay analysis at the following posts:
Chambers (Supreme Court: failure to report to a penal institution is not violent felony)
Lee (Eleventh Circuit: walkaway escape is not violent felony)
Harris (Eleventh Circuit: fleeing from police at high speed is violent felony)
Hunter (Eleventh Circuit: possession of firearm is not violent felony under Archer, but providing no relief from illegal sentence)

In another federal criminal decision issued last Friday, the Eleventh Circuit Court of Appeals held that the identity of a firearms purchaser is always material to the lawfulness of the purchase of a firearm under 18 U.S.C. § 922(a)(6). This decision directly conflicts with the Fifth Circuit’s 1997 holding in U.S. v. Polk that § 922(a)(6) was not violated where both the defendant and his “straw purchaser” were eligible to purchase firearms legally.

In Frazier, the defendants were involved in smuggling firearms from the United States into Canada. The evidence showed that Frazier purchased guns, then paid a woman to order the same guns from the same shop shortly thereafter. Later, another woman ordered additional guns for Frazier.

To convict under § 922(a)(6), the government must prove that the defendant made a false statement regarding “a fact material to the lawfulness of the sale or disposition of [a] firearm.” This section is violated when “an unlawful purchaser uses a straw man purchaser to obtain a firearm.” In this case, however, Frazier was a lawful purchaser using a straw man. In Polk, the Fifth Circuit reasoned that, in such a case, the false statements made regarding the identity of the purchaser were not “material to the lawfulness of the sale of firearms” so there could be no liability under § 922(a)(6).

The Eleventh Circuit disagreed. Under pre-Bonner v. City of Prichard precedent, the Fifth Circuit upheld the § 922(a)(6) conviction of a defendant who had provided a false address in connection with the purchase of a firearm in U.S. v. Grudger. Grudger noted that the sale of a firearm is unlawful under § 922(b)(5) unless the seller records the name, age, and place of residence of the purchaser. Therefore, providing a false address is a misrepresentation that is material to the lawfulness of the sale. For this reason, the Eleventh Circuit held in Frazier that the misrepresentation violated § 922(b)(5) and, correspondingly, § 922(a)(6), even though the actual purchaser was eligible to purchase firearms.

The opinion in U.S. v. Frazier is available here.