Posts Tagged ‘felon in possession’

One of the more unusual aspects of the two Fourth Circuit decisions issued yesterday came at the tail end of United States v. Taylor, in a partial dissent authored by Judge Davis.  The appeal involved, among other things, a sentencing enhancement imposed after application of the “modified categorical” approach under the Armed Career Criminals Act (“ACCA”).

As the fractured en banc opinions in the Fourth Circuit’s recent decision in United States v. Vann reveal, the court of appeals is deeply riven over the correct approach to sentencing enhancements using the modified categorical approach to analyzing what constitutes a violent felony under the ACCA. Even so, Judge Davis’s concluding advice about appellate strategy in Taylor is unusual in its directness.

After alluding to the “vagaries of the Supreme Court’s sentencing jurisprudence under the [ACCA],” Judge Davis contends that “only the Supreme Court itself can provide the clarification so urgently needed.” He continues: “In that spirit, I would suggest that [appellant’s] counsel . . . save the taxpayers a few dollars and forego the customary petition for rehearing in this case and seek certiorari without inordinate delay.”

This is an unusual piece of advice to offer. It raises questions: Is Judge Davis suggesting that a petition for rehearing would be futile? If so, would that futility be apparent absent the implicit suggestion of futility? Should the statement be interpreted as directed more at other Fourth Circuit judges and at Supreme Court Justices than at counsel for appellant? Is this good advice, given the ferment in the Fourth Circuit over the application of ACCA enhancements and the low probability of Supreme Court review?

With respect to the last question, it is perhaps worth recalling the identity of the other panel judges. Judge Wilkinson authored the majority opinion and Judge Motz joined in that opinion. I have not undertaken independent research into each of these jurist’s views on the ACCA in relation to the views of their colleagues on the Fourth Circuit. As a general matter, however, it is usually a safe bet that there is not an en banc majority to overturn a panel opinion authored by Judge Wilkinson and joined in by Judge Motz.

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In addition to yesterday’s decision on gun possession in motorcycle gangs, the Fourth Circuit issued a published opinion in another gun case: United States v. Taylor. The decision came in the consolidated appeals of Daryl Taylor and Antwan Thompson from a jury verdict convicting them of being felons in possession of a firearm under 18 U.S.C. § 922(g).

Judge Wilkinson wrote the opinion for the court, which was joined in by Judge Motz. Judge Davis authored a separate opinion concurring in part and dissenting in part.

The panel unanimously agreed on the disposition of the appellate issues raised with respect to the conviction and sentence of Daryl Taylor.

The disagreement about Antwan Thompson’s sentence centered on the propriety of a 15-year mandatory minimum under the ACCA due to Thompson’s prior felony convictions. Thompson had three relevant prior convictions: two for cocaine offenses and one for second-degree assault under Maryland law. His argument on appeal was that his assault conviction was not a “violent felony” under the ACCA.

The panel majority applied the modified categorical approach, according to which a court can look at certain materials such as charging documents, plea agreements, and transcripts of plea colloquys, to determine whether the conviction was necessarily for a violent felony.

The panel majority rested on the facts set forth in a plea colloquy, according to which Thompson, in resisting arrest for a drug deal, had thrown a Styrofoam cup of liquid at one police officer and scuffled intensely with three of them, leading to a charge for assaulting the officer on the receiving end of the thrown cup of liquid. Thompson argued that he did not admit the facts set forth by the judge in the plea colloquy, but rather that the record showed only that his lawyer did not dispute those facts.

The panel majority holds Thompson to the representations made by his lawyer. By contrast, Judge Davis argues that the attorney’s say-so in declining to make any corrections or additions cannot be treated as the defendant’s confirmation of the facts set forth by the judge.

This area of the law is not one that I specialize in, but my quick take on the governing precedent as a generalist observer is that Judge Davis is parsing Shepard too finely and that the panel majority is justified in treating Thompson’s assault conviction as one for a “violent felony.”

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Can the prohibition on possessing firearms while employed by a felon apply to cover situations in which the person carrying the firearms is not paid by the felon? In yesterday’s decision in United States v. Weaver, the Fourth Circuit says “yes.”

The government charged several alleged members of the Pagans Motorcycles Club (“PMC”) with violating 18 U.S.C. § 922(h). That provision prohibits the possession of firearms while “employed for” a convicted felon. The charges were based on orders the defendants allegedly received from PMC national vice president Floyd Moore, a convicted felon prohibited from possessing a firearm. The government conceded, however, that it could not (and would not seek to) prove that Moore paid the defendants. Rather, the government offered to prove that Moore sought to circumvent the prohibition against his possession of firearms by ordering the defendants to carry arms when accompanying him. The government alleged that Moore bragged that he did not need to carry a gun because other PMC members carried guns for him.

On a motion to dismiss the § 922(h) charges, the district court (Judge Johnston, S.D. W. Va.) held that the statute required the government to prove some sort of payment. In light of this holding and the government’s concession that it could not put forward such proof, the district court dismissed the § 922(h) charges.

The government appealed pursuant to 18 U.S.C. § 3731. In a published opinion authored by Judge Wilkinson, which was joined in by Chief Judge Traxler and Judge Niemeyer, the Fourth Circuit reversed.

Judge Wilkinson reasoned that the text of the statute imposes no compensation requirement, and that although “employ” can mean “to provide with a job that pays wages,” the term is not limited to this meaning. “By treating compensation as an essential condition of § 922(h),” Judge Wilkinson wrote,” the district court narrowed the intended scope of the statute, adding an element of proof not present in the plain language.” After some additional textual analysis, the opinion also explains that the district court’s interpretation “overlooks the structure and purpose of the statute,” which is, in part, an anti-circumvention provision that prevents convicted felons who themselves may not possess firearms (under § 922(g)) from employing armed bodyguards. This discussion relies in part on legislative history purporting to show that “Congress explicitly targeted the members of criminal organizations.” Finally, the opinion looks to precedent analyzing employment relationships in different contexts to “reinforce the proposition that law does not treat compensation as the sine qua non of an employer-employee relationship.”

The Fourth Circuit’s unanimous opinion is not quite the last word on the application of § 922(h) to the PMC defendants. That is because the opinion does not adopt “a definitive definition” (and, really, should we care about any other kind?) of the disputed statutory term. The panel leaves that task to the trial court upon remand, observing that “[w]e do not know whether the government can prove that the defendants breached § 922(h).” In the end, the panel’s narrow holding is simply that compensation is not “the sine qua non of the words ’employed for’ in § 922(h).”

The battle now returns to the district court.

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The Fourth Circuit’s en banc decision last week in United States v. Simmons changed the way that the Fourth Circuit analyzed prior North Carolina convictions for sentencing enhancement under the Armed Career Criminal Act. (See here for my earlier discussion of this decision.) The day after Simmons was handed down, a panel vacated the sentence for a drug conspiracy in United States v. Morton. Today brings news of another sentence vacated under Simmons–an almost 20-year sentence (235 months) in United States v. Trent. The ACCA sentencing enhancement had raised Trent’s sentencing range from 120-150 months to 235 to 293 months.

Trent’s arrest and prosecution followed a car chase in which Trent “drove faster than 100 miles per hour into oncoming traffic,” lost control of his Ford Taurus, and crashed into a commercial storefront. While escaping out a side door, Trent was observed dropping an object “about the size of his hand.” Officers ran down Trent and his passenger. A search of the car revealed a handgun and drug paraphernalia. Trent was convicted of being a felon in possession of a firearm. Among the predicate convictions relied upon by the government for a sentencing enhancement under ACCA were two convictions for felony speeding to elude arrest. The facts underlying those two convictions closely resembled the car chase that resulted in his federal prosecution. “[I]n all three incidents, Trent drove recklessly, wrecked his vehicle, fled on foot from police, and then attempted to dispose of his firearm.” Because Trent could not have been sentenced to more than one year imprisonment for each of those prior attempts, in light of the framework supplied by Simmons, those two prior convictions could not be used as the basis of the ACCA enhancement that Trent received.

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