Category Archives: Firearms

government breached plea agreement

U.S. Sentencing Guidelines: The Categorical Approach and The Crime of Violence Enhancement

Published By Stephen Preziosi

United States v. McCants, 920 F.3d 169 (3d Cir. Apr. 5,
2019).

The Third Circuit affirmed the defendant’s 120-month career offender sentence for being a felon in possession of a firearm and possession with intent to distribute heroin. The court held that the defendant’s two prior state convictions in New Jersey for second-degree robbery qualify as crimes of violence under §4B1.2. It stated that they are predicate offenses under both the elements clause of §4B1.2, because the state definition of “bodily injury” falls within the definition of crime of violence, and under the enumerated offenses clause, because the state statute requires the threat of bodily injury.

The Guidelines define a “crime of violence” as any felony offense under state or federal law that:(1) has as an element the use, attempted use, or threatened use of physical force against the person of another [the “elements” clause], or(2) is murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson, extortion, or the use or unlawful possession of a firearm described in 26 U.S.C. § 5845(a) or explosive material as defined in 18 U.S.C. § 841(c) [the “enumerated offense” clause].Guidelines § 4B1.2(a).

The Categorical Approach: Determining Whether An Enhancement Is Applicable.

The Third Circuit uses the categorical approach to determine whether a prior conviction is a predicate offense for a crime-of-violence sentencing enhancement. United States v. Ramos, 892 F.3d 599, 606 (3d Cir. 2018). In doing so, we compare the elements of the statute under which the defendant was convicted to the Guidelines’ definition of crime of violence. (quoting United States v. Wilson, 880 F.3d 80, 83 (3d Cir. 2018)).10McCants’s designation as a career offender was based on two convictions under New Jersey STAT. ANN. § 2C:15-1, which provides:a. Robbery defined. A person is guilty of robbery if, in the course of committing a theft, he:(1) Inflicts bodily injury or uses force upon another; or(2) Threatens another with or purposely puts him in fear of immediate bodily injury; or (3) Commits or threatens immediately to commit any crime of the first or second degree.

The sentencing court must look beyond the elements of the statute for this comparison only if it is “divisible” and lists “elements in the alternative, and thereby define[s] multiple crimes.” Mathis v. United States, ––– U.S. ––––, 136 S.Ct. 2243, 2249, 195 L.Ed.2d 604 (2016). The statute in this case was phrased disjunctively, using “or” to offset subsections (a)(1) through (a)(3). Such a statute is divisible if it lists “elements” of the offense and not “means” of committing that offense. Elements’ are the ‘constituent parts’ of a crime’s legal definition—the things the ‘prosecution must prove to sustain a conviction. Means,” on the other hand, are “various factual ways of committing” a single element.

The Third Circuit Court of Appeals found that subsections (a)(1)–(3) are elements because each requires different proof beyond a reasonable doubt to sustain a second-degree robbery conviction. Under (a)(1),  the prosecutor must prove that the defendant inflicts injury or uses force upon another person. However, the defendant need only threaten or place another person in fear of immediate bodily injury under (a)(2), or threaten to commit another first- or second-degree crime under (a)(3).

Because New Jersey STAT. ANN. § 2C:15-1 lays out alternative elements upon which prosecutors can sustain a second-degree robbery conviction, we hold that the statute is divisible and, therefore, the crime of violence sentencing enhancement is applicable.

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.