Blakely meets FOPA: an important step in the analysis of firearm cases
Under the federal firearms statute, prior convictions for the purposes of felon in possession of a firearm, as well as predicates under the Armed Career Criminal Act, depend on whether, under state law, the crime is punishable by imprisonment for a term exceeding one year. Under Blakely, prior convictions under a mandatory guideline statute are not punishable by more than a year if enhancements and departures are not pleaded in the indictment and either proved at trial or admitted during the guilty plea colloquy. And admissions during the plea would need to comply with the narrow reading in Shepard. Defenders need to examine the predicate convictions under 18 U.S.C. § 922(g) and the ACCA to determine whether a federal crime has been charged.
The story begins in 1983 when § 922(g) had a federal definition. In Dickerson v. New Banner, the Supreme Court held that a prior state court conviction qualified as a predicate conviction under the federal definition even though the conviction had been expunged under state law. In response, Congress, with guidance from the National Rifle Association, enacted the Firearm Owners Protection Act of 1986, which deferred to state law. For a prior conviction to be a predicate for federal gun crimes, section 921(a)(20) states, "What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held." And the statute is plain: the firearms prohibition extends only to persons convicted of "a crime punishable by imprisonment for a term exceeding one year."
Then comes Blakely, in which the Supreme Court extended to state mandatory guideline systems the requirement that, to comply with the Sixth Amendment, factors that enhance punishment must be pleaded and proven beyond a reasonable doubt. Many state guideline maximums are one year or less, even though the statutory maximum is greater than one year. Prior to Blakely, the Ninth Circuit, in the immigration context, had rejected the argument that an offense, because it was not punishable by more than one year of incarceration under state guidelines, did not qualify as a federal felony in Rios-Beltran. The Ninth Circuit has recently remanded in Moreno-Hernandez to determine whether Rios-Beltran is still good law after Blakely. As previously blogged here, the immigration argument should be resolved by Leocal in favor of eliminating drug possession as an "aggravated felony," regardless of whether it is designated as a felony under state law.
But the argument is even more powerful in the firearms context. Congress has clearly deferred to state maximum punishments in deciding whether an offense is serious enough to require federal attention. The Supreme Court in Taylor and Shepard has circumscribed the type of evidence to be used in categorizing prior convictions. And the equities are on our side. As the number of firearms cases has proliferated, we are seeing more and more federal charges that are based on relatively innocuous prior convictions. In the Eastern District of Washington, AFPD Rebecca Pinnell won the issue before the District Court; her brief defending the decision on appeal is available here. AFPD Renee Manes briefed the issue here until the government superseded on a lesser charge. AFPD Chris Schatz has briefed the issue here.
Re-evaluation of whether our clients' prior convictions are within the federal definition should be undertaken in all firearms cases. The law is strongly in our favor, and the policy is a reasonable one – federal involvement in relatively minor state matters erodes the federalism goal of placing primary responsibility for enforcement of the criminal laws with the States (footnote 3 in Lopez).
Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon
The story begins in 1983 when § 922(g) had a federal definition. In Dickerson v. New Banner, the Supreme Court held that a prior state court conviction qualified as a predicate conviction under the federal definition even though the conviction had been expunged under state law. In response, Congress, with guidance from the National Rifle Association, enacted the Firearm Owners Protection Act of 1986, which deferred to state law. For a prior conviction to be a predicate for federal gun crimes, section 921(a)(20) states, "What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held." And the statute is plain: the firearms prohibition extends only to persons convicted of "a crime punishable by imprisonment for a term exceeding one year."
Then comes Blakely, in which the Supreme Court extended to state mandatory guideline systems the requirement that, to comply with the Sixth Amendment, factors that enhance punishment must be pleaded and proven beyond a reasonable doubt. Many state guideline maximums are one year or less, even though the statutory maximum is greater than one year. Prior to Blakely, the Ninth Circuit, in the immigration context, had rejected the argument that an offense, because it was not punishable by more than one year of incarceration under state guidelines, did not qualify as a federal felony in Rios-Beltran. The Ninth Circuit has recently remanded in Moreno-Hernandez to determine whether Rios-Beltran is still good law after Blakely. As previously blogged here, the immigration argument should be resolved by Leocal in favor of eliminating drug possession as an "aggravated felony," regardless of whether it is designated as a felony under state law.
But the argument is even more powerful in the firearms context. Congress has clearly deferred to state maximum punishments in deciding whether an offense is serious enough to require federal attention. The Supreme Court in Taylor and Shepard has circumscribed the type of evidence to be used in categorizing prior convictions. And the equities are on our side. As the number of firearms cases has proliferated, we are seeing more and more federal charges that are based on relatively innocuous prior convictions. In the Eastern District of Washington, AFPD Rebecca Pinnell won the issue before the District Court; her brief defending the decision on appeal is available here. AFPD Renee Manes briefed the issue here until the government superseded on a lesser charge. AFPD Chris Schatz has briefed the issue here.
Re-evaluation of whether our clients' prior convictions are within the federal definition should be undertaken in all firearms cases. The law is strongly in our favor, and the policy is a reasonable one – federal involvement in relatively minor state matters erodes the federalism goal of placing primary responsibility for enforcement of the criminal laws with the States (footnote 3 in Lopez).
Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon
posted by Steve Sady at 3/29/2005 06:40:00 PM
4 Comments:
Great stuff. Very useful. Keep it coming!
I see from his brief that Chris Schatz was to appear and argue this issue before Judge Mosman on March 31st. What happened?
Under 924(e), ACCA, the "statutory max" has to be 10 years or more.
I"ve made a similar argument -- that, under Blakely, a prior Washington drug conviction for simple possession was not a "felony" because of the less-than-one-year range under the Sentencing Reform Act; thus, the doubling of a mandatory minimum was not authorized under 21 U.S.C. 851. The sentencing court did not double the mandatory minimum, but reasons not entirely clear. Government appeal anticipated.
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