f. Federal Prosecution of Firearms
- Selection of Cases
- Felon in possession is not often prosecuted alone because it would foreclose the harsher punishment from state law
- Interpretive Issues
- Indirect/Constructive Possession
- Merely living in the same home where another possesses guns is NOT enough
- Video evidence of possession can suffice
- Punishment in excess of one year
- Determined by the law in which the predicate conviction’s proceedings were held
- Restoration of Rights
- Unless the restoration specifically states “may not possess, sell, or transport guns, they are no longer a prohibited person
- Restoration occurs via (1) restoration, (2) expungement, or (3) pardon
- Currently, a pardon is pretty much the only way to get them restored since Congress refuses to fund restoration processes.
g. Possession in Furtherance of Violent or Drug Crimes
- U.S. v. King (10th Cir.) (2011)
- U.S. v. Poe—Constructive possession of a firearm exists when an individual knowingly holds the ability to exercise dominion and control over it.
- Can be found via ownership or control over its location
- “knowing” may be established by exclusive control on the location
- Joint control of the location requires the government to show a nexus between the D and the firearm
- BoP—evidence showing plausibility of the inference that D had knowledge of and access to the firearm
- “Control” is NOT absolutely required
- Only need to show the D had the appreciable ability to access it
- May arise via another person
- “In furtherance”
- When considering drug-trafficking, there is a presumption that guns are tools of the trade. Thus, while mere presence is not enough, their dual presence is unlikely to be coincidental.
- Requires the gun to promote, advance, or further the crime
- Trotter Factors
- Type of drug activity
- Legal status of the gun
- Whether it is loaded
- Proximity to drugs or profits/accessibility
- Time and circumstances of finding it
- U.S. v. Penniegraft (4th Cir.)—Held that where drugs and guns were found in different parts of the house, D WAS in possession in furtherance of a drug crime on the fact that the D had a key to the house
- Main Issue—Whether the gun was available to be used by the D as a weapon
- Mere proximity is not enough. Should be quickly accessible and ready for use
- There needs to be a “specific nexus” that is not based on mere generalizations
h. Use or Carry of a Firearm
- Watson v. U.S. (Souter) (2007)
- If the D has a gun and trades it for drugs, then he DID use a gun—Smith
- If the D has drugs and trades it for a gun, he did NOT use a gun because the crime was complete
- Bailey—Mere possession does not amount to “use,” there must be active employment.
- Ginsburg— “use” should be confined to use as a weapon
i. Factors Enhancing Penalties/Sentencing (Brandish, Discharge, Machinegun)
- ****** “element” in this context refers to a material fact of the case that affects the minimums and maximums of sentencing ranges******* Apprendi
- Burdens of Proof
- Elements = BRD
- Enhancements = preponderance
- Cases On the Issue
- Alleyene v. U.S. (Thomas) (2013)
- Reversed Harris v. U.S.—Which had held that a fact raising the minimum could be found by the judge by a preponderance of evidence.
- Holding—Any fact that, by law, increases the punishment for a crime must be proven to the jury BRD. Any fact increasing the mandatory minimum MUST be submitted to the jury.
- Must now plead and prove drug quantities to the jury.
- Simply put, all aggravating sentencing factors must be found by the jury.
- The legislature CANNOT distinguish between facts of the crime and sentencing factors.
- Rehaif v. United States (2019) (Breyer)
- Holding—In relation to § 922(g) prohibited persons, there are two mens rea requirements. (1) D must have knowingly possessed the gun AND (2) known of his prohibited status.
- This does not run afoul of the disavowal of the mistake of law defense because it is a mistake concerning one’s legal status, knowledge of which is required in order to be of a sufficiently culpable mind. Further, it does not require knowledge of the law, just the status.
- There is a presumption in favor of applying the scienter requirement.
- United States v. Davis (Gorsuch) (2019)
- § 924(c)(3)(B) is unconstitutionally vague.
- § 924(c)(3)(B) criminalizes the use of a gun in crimes of a violent nature.
- Reasoning—Under the principles of due process and separation of power, the imposition of criminal punishment cannot depend on a judge’s estimation of the degree of risk posed by a crime’s “imagined ordinary use.
- Holding—When determining whether it is a crime of violence, the analysis must be case-specific. You cannot apply the general characteristics and assume they are shared. i.e., You cannot generally state, “robberies are usually dangerous, so this one must have been as well.
- Rule of Lenity—A cannon of construction that should be applied to resolve ambiguities in D’s favor.
- Punishment is a legislative prerogative, not judicial
- Constitutional Avoidance—A cannon of construction that, when applied, states that the court should try to err on the side of constitutionality when a statute can be read in one way that is constitutional and another that makes it unconstitutional. HOWEVER, this can ONLY be used to narrow the scope of a criminal statute.
VII. Drug Offense Enforcement a. Comprehensive Drug Abuse Prevention and Control Act of 1970
- First attempt by the Feds to regulate drugs using the commerce power
- Class of Activities Approach
- NO jurisdictional element due to these Congressional findings
- Most drug traffic passes interstate
- Intrastate acts still affect the broad scheme of the law
- Local use increases interstate traffic
- No ability to differentiate between intra and interstate drugs
- Federal involvement is essential to effective control
- Relevant Statutes
- 21 U.S.C. § 856 Crack House Statute
- Cannot run a building for the purpose of the manufacture, distribution, or use of a controlled substance
- 21 U.S.C. § 841 Distribution Mandatory Minimums
- 280 grams of crack or 5 kilos of coke
- 1st offense = 10 years min.
- 2nd offense = 15 years min.
- If death occurs, min 20 years
- 500 grams of coke or 28 grams of crack
- 1st offense = 5 years min
- 2nd offense = 10 years min
- If death occurs, 20 year min
- § 841(b) Sentencing Enhancements for causing Overdose Deaths
- Imposed the 20 year min for overdose deaths resulting from the substance in question.
- “Resulting From”—where the drug distributed by D was not an independently sufficient cause of death, the government must prove it was the but for cause of death—Burrage
- 21 U.S.C. § 846 Specialized Conspiracy Statute
- Same penalty as the underlying crime. No overt act requirement.
- 21 U.S.C. § 848 Continued Criminal Enterprise
- 21 U.S.C. § 862 Ineligibility for Federal Benefits After Conviction
- Scheduling—determined by the AG after receiving recommendations from the Sec. of Health, Education, and Welfare