Category Archives: federal appeals

Firearms: One Altered Serial Number Is Enough.

Published By Stephen Preziosi

United States v. Jones, 927 F.3d 895 (5th Cir. June 21,
2019).

The Fifth Circuit affirmed the defendant’s 84-month sentence for being a felon in possession of a firearm, holding that the §2K2.1(b)(4) enhancement for an altered or obliterated serial number was warranted where the metal plate reflecting the serial number had been removed from the firearm’s frame but it had a legible serial number on its slide. Joining the First, Eighth, and Eleventh Circuits the court held that §2K2.1 requires that only one serial number be altered or obliterated even if others are clearly legible, and that a serial number is “altered or obliterated” when it is “materially changed in a way that makes accurate information less accessible.

Guideline § 2K2.1(b)(4) applies a four-level enhancement to a defendant’s base offense level “[i]f any firearm … had an altered or obliterated serial number.  In United States v. Perez, 585 F.3d 880 (5th Cir. 2009) the Fifth Circuit addressed the meaning of “altered or obliterated” and adopted the Ninth Circuit’s holding in United States v. Carter, 421 F.3d 909 (9th Cir. 2005) that “a firearm’s serial number is ‘altered or obliterated’ when it is materially changed in a way that makes accurate information less accessible. The Fifth Circuit held in Perez that an attempt to scratch the serial number off of a firearm made accurate information less accessible, even though the serial number was “actually readable.

The First Circuit noted that the guideline requires “only ‘an altered or obliterated serial number. U.S. v. Serrano-Mercado, 784 F.3d 838 (1st Cir. 2015) and reasoned that[a]pplying an enhancement for firearms that have a single totally obscured serial number may serve as a deterrent to tampering, even when incomplete. And, relatedly, the single-obliteration rule could facilitate tracking each component that bears a serial number, given that various parts of firearms may be severable.

The Fifth Circuit joined the First, Eighth, and Eleventh Circuits in holding that the applicable guideline “requires only that one serial number be altered or obliterated, even if others are clearly legible.

Sentencing Guidelines: Offense Level and Possession of Ammunition – no presumption that ammunition is “in connection with” another felony offense.

Published By Stephen Preziosi

United States v. Eaden, 914 F.3d 1004 (5th Cir. Feb. 5, 2019).

The question of first impression presented in this sentencing appeal concerns the effect of a defendant’s possession of ammunition alone, as opposed to a firearm, during a drug trafficking offense. Milo Eaden appealed his four-level sentencing enhancement pursuant to U.S.S.G. § 2k2.1(b)(6)(B) for using or possessing ammunition in connection with another felony offense. Eaden argued that he did not possess the ammunition “in connection with” his felony drug trafficking activities. The Fifth Circuit Court of Appeals held that the district court clearly erred in imposing the enhancement under these facts. The Court vacated Mr. Eaden’s sentence and remanded for resentencing.

The Fifth Circuit vacated and remanded the defendant’s sentence for possession of ammunition by a felon, holding that there was insufficient evidence to support the imposition of the 4-level enhancement at §2K2.1(b)(6)(B). Although there was evidence that ammunition was in close proximity to illegal drugs, the court stated, the government must show additional evidence that the nearby ammunition “facilitated, or had the potential of facilitating” the other offense. 

Police officers executed a search warrant of Eaden’s home after making a controlled purchase of crack cocaine from Eaden at his residence. During their search, the officers found 5.5 grams of crack cocaine and 19 rounds of ammunition. No firearm was found on Eaden’s person or in his home. 

The Presentence Report (PSR) assigned a base offense level of fourteen, added a four-level enhancement pursuant to U.S.S.G. § 2k2.1(b)(6)(B) for using or possessing the ammunition in connection with another felony offense, and reduced by three levels for acceptance of responsibility, bringing his total offense level to fifteen. Eaden objected to the four-level enhancement, arguing that his possession of ammunition was not connected with his drug trafficking because the ammunition did not facilitate or have the potential to facilitate the drug trafficking offense nor was the possession of the ammunition and drug trafficking part of a common scheme or plan.

If U.S.S.G. § 2k2.1(b)(6)(B)’s four-level enhancement can be applied to a defendant who possessed only ammunition. Section 2k2.1(b)(6)(B) provides for a four-level enhancement if the defendant “used or possessed any firearm or ammunition in connection with another felony offense.” Application Note 14(A) provides that the term “in connection with” mandates that “the firearm or ammunition facilitated, or had the potential of facilitating, another felony offense.”

Possession of ammunition alone, under appropriate circumstances not present in this case, certainly may be sufficient for the four-level enhancement.  By using the disjunctive “or,” the guidelines plainly read to allow for the enhancement when the defendant possesses a loaded gun, an unloaded gun, or ammunition alone. That much is clear: ammunition alone can facilitate a drug offense. The more nuanced question will be under what circumstances and, absent a presumption, this question necessarily must be decided on a case by case basis.

As noted above, Application Note 14(A) clarifies that “in connection with” means “facilitated, or had the potential of facilitating.” Therefore, for the enhancement to apply, the government must show evidence of both (1) possession of a firearm or ammunition and (2) that the firearm or ammunition facilitated or had the potential to facilitate the other offense. Application Note 14(B) instructs us, however, that “in the case of a drug trafficking offense in which a firearm is found in close proximity to drugs … application of subsection[ ] (b)(6)(B) is warranted because the presence of a firearm has the potential of facilitating another felony offense.” Application Note 14(B)—addressed specifically to the drug trafficking context—states only that “the presence of the firearm” inherently “has the potential of facilitating” and makes no reference to ammunition. We see no reason in the text of the Guideline, or its explanatory notes, to expand this presumption beyond possession of a firearm during a drug trafficking offense.

government breached plea agreement

Post-Incarceration Supervised Release Tolled During Pre-Conviction Detention

Published By Stephen Preziosi

Mont v. United States
No. 17-8995
U.S. Supreme Court
Decided: June 3, 2019

Issue

Whether a convicted criminal’s period of supervised release is tolled during pretrial detention for a new criminal offense.

Holding

The U.S. Supreme Court held that pretrial incarceration later credited as time served for a new conviction is imprisonment in connection with a new conviction and thus tolls the supervised release term under §3624(e), even if the court does not make the tolling calculation until after the conviction. 

Facts of the Case

While serving a 5-year term of supervised release following a federal prison sentence, petitioner Mont was arrested on state drug charges. At that time, about nine months of supervised release remained. 

Eventually, Mont pled guilty to state charges and admitted to violating his federal supervised release conditions. The state court sentenced Mont to six years’ imprisonment and a few days later the District Court issued a warrant for the supervised release violations after previously declining to do so. By the time Mont was sentenced on the state charges, the original term of his supervised release had expired. Mont argued the District Court had no jurisdiction over him because the federal warrant was issued after his supervised release was set to expire.

The District Court rejected Mont’s argument, ruling that it had jurisdiction under 18 USC §3583(i), and sentenced Mont to an additional 42 months in prison. The Sixth Circuit affirmed the District Court’s decision but on grounds that Mont’s supervised release period had been tolled under §3624(e) while Mont was incarcerated while awaiting sentencing. The U.S. Supreme Court granted certiorari. 

Court’s Analysis

18 U.S.C. §3624(e), under which the District Court based its decision provides:

“. . . A term of supervised release does not run during any period in which the person is imprisoned in connection with a conviction for a Federal, State, or local crime unless the imprisonment is for a period of less than 30 consecutive days.”

The Supreme Court has previously recognized that the phrase “in connection with” bears a broad interpretation. See Merrill Lynch, Pierce, Fenner & Smith Inc. v. Dabit, 547 U.S. 71, 85 (2006). The Court holds that pretrial detention of a conviction is “in connection with” the conviction. Had Congress intended to preclude pretrial detention, the Court reasoned, it would have used language such as “following a conviction” or “after a conviction.” The use of the language “in connection with a conviction” assumes pretrial incarceration. 

Moreover, the Court recognizes supervised release as a means to facilitate a “transition to community life.” United States v. Johnson, 529 U.S. 53, 59-60 (2000). Therefore, according to the Court, incarceration should not substitute supervised released and, in this case, Mont’s pretrial detention should not be credited toward his remaining supervised release. Instead, Mont’s supervised release should be tolled as per Congress’s original intent. If supervised release were not tolled, the ultimate purpose of supervised release would be frustrated. By tolling the supervised release by his pretrial detention, the District Court ensures Mont serves five years as a transitional period into a law-abiding life.

Use of Handcuffs During Investigatory Stop Is Not An Arrest

Published By Stephen Preziosi

Use of Handcuffs During Investigatory Stop Is Not An Arrest

United States of America v. Fiseku

17-1222-cr

United States Court of Appeals: Second Circuit

Decided October 4, 2018

ISSUE

Whether an officer’s use of handcuffs in an investigatory detention is unreasonable and provokes a de facto arrest without probable cause in violation of the Fourth Amendment when the officer had a reasonable suspicion to stop the defendant, examined the defendant’s license, patted him down and placed handcuff under the guise of officer safety.    

HOLDING

The Second Circuit Court of Appeals held that under unusual circumstances, such as those observed in this case, an officer’s use of handcuffs during an investigatory detention does not result in a de facto arrest under the Fourth Amendment.  The officers acted reasonably during the late-night investigatory stop in restraining Fiseku and two other individuals in handcuffs before the officers developed probable cause to arrest because 1) The officer was outnumbered before backup arrived. 2) The driver of the vehicle lied about the car’s transmission and potentially lied about harboring two additional people. 3) The officer did not know if the defendants could reach their weapons.

FACTS OF THE CASE

In September 2014 at about 1:15 AM, Sergeant Vincent Gruppuso pulled up to a white Nissan Pathfinder and engaged in a short discussion with the driver, later identified as Sefedin Jajaga.  He explained that the Pathfinder was stopped on a dirt pull-off because the car was having transmission problems and he was waiting for a friend who agreed to bring a tow truck.  While driving off, Gruppuso found the situation to be dubious because he knew of a vacant home for sale nearby that would be a prime target for… burglary.  He decided to go back and check on the vehicle only to find the Pathfinder driving on a nearby street only five minutes after the driver claimed to have transmission problems.  Gruppuso followed the car to a parking lot near the highway.

Gruppuso entered the parking lot, and observed the Pathfinder parked in the far corner of the lot, surrounded by trees.  He parked nearby and saw three men in the vicinity of the Pathfinder: Jajaga in the driver’s seat, a second man, named Hughes, in the passenger seat and a third man, named Fiseku, walking around the rear of the vehicle.  At 1:25 AM, Gruppuso radioed for additional units to join him in the parking lot.  By the time additional officers arrived, Gruppuso had already begun questioning Fiseku: examining his driver’s license, patting him down and placing him in handcuffs.  Together, the three officers directed Jajaga and Hughes to exit the Pathfinder, then patted them down and handcuffed them as well.  The three men were handcuffed under the guise of officer safety. 

The officers explained to the men that they were being detained; they were not told they were under arrest nor were they read their Miranda Rights while the officers investigated their suspicious behavior.  The defendants were separated for individual questioning and, with consent, Gruppuso searched the Pathfinder where he recovered the following items: baseball caps, a sweatshirt, a badge, a stun gun, a BB gun replicating a Colt .45 pistol, a blank pistol replicating a .25 automatic, flashlights, walkie talkies, gloves, a screw driver and duct tape. After the search was complete, officers were concerned about a potential home invasion, so they requested additional units to canvas the area. 

In September 2015, Fiseku and Jajaga moved to suppress physical evidence recovered from the vehicle and statements made to the officers during the stop, arguing both points under the Fourth and Fifth Amendments.  In December 2015, the District Court entered an order granting in part and denying in part the suppression motion. The court rejected the defendant’s claim that there was a de facto arrest without probable cause in violation of the Fourth Amendment and reasoned that the officer’s conduct, including the handcuffs, was reasonable in light of the circumstances.  The court granted the motion to suppress the defendants’ statements because the defendants were subjected to interrogation without being read their Miranda rights.  They did, however, reject the defendants’ request to suppress physical evidence because Jajaga’s consent to search the vehicle was voluntary and freely given.

COURT’S ANALYSIS

The Second Circuit Court of Appeals held that under unusual circumstances an officer’s use of handcuffs does not result in a de facto arrest under the Fourth Amendment.  In the Fourth Amendment there is a defined right to be free from unreasonable searches and seizures however, an officer’s decision to briefly restrain a suspect in handcuffs is reasonable if it ensures the officers’ safety.   The U.S. Constitution intends for reasonableness to mean a balancing of particular need to search or seize against the privacy interests invaded by such actions.

Generally, an arrest must be supported by probable cause; however, an officer may conduct a brief investigatory detention, commonly known as a Terry stop, as long as the officer has reasonable suspicion that the person to be detained is committing or has committed a criminal offense. Yet even a proper investigatory stop can ripen into a de facto arrest that must be based on probable cause. In considering a claim of de facto arrest, the courts consider the following facts:

(1) the length of time involved in the stop; (2) its public or private setting; (3) the number of participating law enforcement officers; (4) the risk of danger presented by the person stopped; and (5) the display or use of physical force against the person stopped, including firearms, handcuffs, and leg irons.

The courts cautioned in United States v. Newton, 369 F.3d 659, 674 (2d Cir. 2004) that no one of these factors is determinative.  But to satisfy the reasonableness standard, officers conducting stops on less than probable cause must employ the least intrusive means reasonably available to affect their legitimate investigative purposes.

According to the court, this case presented unusual circumstances where an officer was able to handcuff a suspect without transforming a Terry v. Ohio,392 U.S. 1stop into an arrest.  Gruppuso had reason to believe that Jajaga lied about why he was stopped on a dirt pull-off when only five minutes after their initial interaction Gruppuso saw the Pathfinder drive into the dark parking lot surrounded by trees because it was highly improbable that Jajaga managed to start the car only moments after claiming the transmission of the car was broken.  Gruppuso’s suspicions were reasonably heightened when there were two additional passengers, Hughes and Fiseku, that he did not know of during the initial interaction with Jajaga.  Given the aforementioned observations and the fact that Gruppuso arrived in the parking lot only moments after the Pathfinder, it is reasonable for Gruppuso to have inferred that either Hughes and Fiseku were hiding in the car during the interaction or they had been waiting for Jajaga in the parking lot.  In either scenario, the court determined that in this setting, a reasonably cautious officer in Gruppuso’s position would have objective grounds to suspect that the three men were about to commit a crime, or that they had recently done so. 

In the time it took for two additional officers to arrive, Gruppuso didn’t find any weapons or contraband on Fiseku’s person during the pat down but, the Supreme Court expressly recognized that suspects may injure police officers and others by virtue of their access to weapons, even though they themselves may not be armed.  The Michigan v. Long, 463 U.S. 1032, 1048 (1983) Court went on to explain that investigative detentions involving suspects in vehicles are especially fraught with danger to police officers.  Additional suspects Jajaga and Hughes were still seated in the Pathfinder when Gruppuso handcuffed Fiseku, where weapons could have been placed within reach.  Additionally, in the dark, surrounded by trees, Gruppuso couldn’t feasibly conduct a protective sweep to check for secreted weapons or additional associates while monitoring three suspects, who the District Court described as ‘muscular men’

Handcuffs are generally seen as a hallmark of a formal arrest. Newton, 369 F.3d at 676 yet, the courts recognize that regardless of whether probable cause to arrest exists, a law enforcement agent, faced with the possibility of danger, has a right to take reasonable steps to protect himself. Sensing the conflict between the two principles, the courts elaborate that the Fourth Amendment will occasionally permit handcuffs in a Terry stop if the police have a reasonable basis to think that the person detained poses a present physical threat and that handcuffing is  the least intrusive means to protect against that threat. United States v Bailey, 743 F.3d 322 (2d Cir. 2014). 

Fiseku prompts the courts to consider United States v. Bailey, where, on appeal, the courts found that there was a violation of the Fourth Amendment when the officers handcuffed the suspects because the record indicated no physical threat or other factors that would justify the handcuffing of these two men.  Conversely, Gruppuso was not looking to identify the men like in the Bailey case; he simply stumbled upon a suspicious scenario in the middle of the night in a secluded, wooded location.  His goal was to either confirm or deny his suspicion that they had committed, or were poised to commit, a home invasion or some other crime.  The likelihood of criminal activity increased the risk that one or more suspects had access to a weapon or might attempt to flee; therefore, Guppuso had to make the decision to best protect himself and the community, acting in the face of uncertainty about how many associates might be present, what sort of criminal activity they might be involved in, or whether any of them might have access to a weapon.