Murillo:FOPA faux pas, or how an actual maximum state sentence of twelve months becomes a crime punishable by imprisonment exceeding one year
How can an offense for which the "actual maximum possible term of imprisonment was 12 months" constitute "a crime punishable by imprisonment for a term exceeding one year" under the National Firearms Act?
Peter Murillo appeared in federal court charged under 18 U.S.C. § 922(g) with being a prohibited person in possession of a firearm. His only prior convictions were for harassment and second degree unlawful possession of a firearm. His attorney, AFPD Rebecca Pennell, established, as the Ninth Circuit agreed, that under the Washington guideline statutes, Mr. Murillo’s "actual maximum possible term of imprisonment was 12 months." District Judge Edward Shea looked at the plain meaning of § 922(g) and found that, because the crime was not "punishable by imprisonment for a term exceeding one year," Mr. Murillo was not a prohibited person under the statute.
So how do we get from a simple, plain meaning analysis to the Ninth Circuit’s contra-textual reversal of Judge Shea in Murillo (available here)? Two basic themes are involved: first, the court skips over key rules of statutory construction; and second, the court appears ready to interpret the statute as it thinks Congress meant, not what Congress said. Loyal readers will hear echoes of previous blogs regarding the Ninth Circuit’s holdings that simple drug possession constitutes a "drug trafficking offense" (available here and here) and that "term of imprisonment" is ambiguous so we should defer to the Executive Branch’s harsher construction, rather than apply the rule of lenity (available here and here).
But let’s get to statutory construction. First, the Ninth Circuit heads off course in the first sentence, divorcing its analysis from the text of the statute. At the outset of the opinon, the Ninth Circuit refers to § 922(g) parenthetically as "felon in possession of a firearm." § 922(g) never mentions "felony", and the guideline, U.S.S.G. § 2K2.1, refers to "prohibited person." The key phrase is "crime punishable by imprisonment for a term exceeding one year." The erroneous characterization of the statute as involving "felon" infects the rest of the court’s opinion, which relies on cases defining "felony" in the immigration context.
Second, the plain meaning of the text forecloses the "felon" construction. Twice this Term, Chief Justice Reinquist reversed lower courts’ construction of statutes because they did not respect the "natural" and "ordinary" meaning of the words used (Arthur Andresen & Leocal). Similarly, "crime punishable by imprisonment for a term exceeding one year," naturally and in the ordinary meaning of the words, does not cover an offense for which the "actual maximum possible term of imprisonment was 12 months."
Third, the court ignores the Firearms Owners Protection Act’s explicit deference to state law, as opposed to the national definitions employed by immigration law definitions of "felony". As blogged here, § 922(g) used to have a federal definition. After the broad interpretation of that definition in Dickerson v. New Banner, Congress, at the behest of the National Rifle Association, enacted FOPA. This statute added § 921(a)(20), which directed that the relevant phrase be defined by reference to state law: "What constitutes such a crime [‘punishable by imprisonment for a term exceeding one year’] shall be determined in accordance with the law of the jurisdiction in which the proceedings were held." The Murillo court ignores Congress’s express reference to state law.
Fourth, the court relies on "similar" arguments in the immigration context in Moreno-Hernandez and Rios-Beltran. The court does not mention the critical difference: the immigration questions depend on the definitions of "felony" and "aggravated felony." § 922(g) contains no reference to "felony." As the court held in Cazarez-Gutierrez, a national standard is necessary in defining "felony" in the immigration context to avoid disparate treatment of aliens. Under FOPA, Congress explicitly rejected the need for national uniformity and directed that the federal crime be defined by deference to the maximum punishment allowed under each individual State’s law. The immigration cases involve a different term, a different statute, and a different allocation of responsibility within the federalist system.
Fifth, the court depended on Marks, a case in which the FOPA issue was not raised. In Marks, the court rejected the argument that a prior conviction could not be used because it had been obtained through the ineffective assistance of counsel. No argument was made that the particular crime could not have been punished by more that one year. A case in which the issue was not raised carries no precedential weight.
That brings us to the sixth point. Let’s assume that the text is not as clear as it seems. What rules provide some guidance? Chief Justice Marshall has an idea: "The rule that penal laws are to be construed strictly, is perhaps not much less old than construction itself" (Wiltberger). How about the "venerable" rule of lenity (R.L.C.)?How about avoiding the constitutional question of whether deeming a crime "punishable" based on facts not pleaded and proved beyond a reasonable doubt to a jury violates the Sixth Amendment (Shepard & Martinez)? Instead, the rule we are left with is that, regardless of the words used, Congress must have intended that the defendant lose.
This is one more statutory area where defense counsel need to persist in asserting their clients' rights. The rules of statutory construction are – in this area – the predicate for the just operation of the criminal justice system. In accordance with the balance envisioned by the Constitution, no act violates federal criminal law unless Congress unequivocally said so. Congress in FOPA unequivocally decided that prosecutors could not make a federal case out of firearms possession in the absence of a prior conviction serious enough that State law authorizes the defendant to receive a term of imprisonment exceeding one year. The Murillo opinion rewrites, rather than interprets, the statute to allow just such a prosecution.
Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon
Peter Murillo appeared in federal court charged under 18 U.S.C. § 922(g) with being a prohibited person in possession of a firearm. His only prior convictions were for harassment and second degree unlawful possession of a firearm. His attorney, AFPD Rebecca Pennell, established, as the Ninth Circuit agreed, that under the Washington guideline statutes, Mr. Murillo’s "actual maximum possible term of imprisonment was 12 months." District Judge Edward Shea looked at the plain meaning of § 922(g) and found that, because the crime was not "punishable by imprisonment for a term exceeding one year," Mr. Murillo was not a prohibited person under the statute.
So how do we get from a simple, plain meaning analysis to the Ninth Circuit’s contra-textual reversal of Judge Shea in Murillo (available here)? Two basic themes are involved: first, the court skips over key rules of statutory construction; and second, the court appears ready to interpret the statute as it thinks Congress meant, not what Congress said. Loyal readers will hear echoes of previous blogs regarding the Ninth Circuit’s holdings that simple drug possession constitutes a "drug trafficking offense" (available here and here) and that "term of imprisonment" is ambiguous so we should defer to the Executive Branch’s harsher construction, rather than apply the rule of lenity (available here and here).
But let’s get to statutory construction. First, the Ninth Circuit heads off course in the first sentence, divorcing its analysis from the text of the statute. At the outset of the opinon, the Ninth Circuit refers to § 922(g) parenthetically as "felon in possession of a firearm." § 922(g) never mentions "felony", and the guideline, U.S.S.G. § 2K2.1, refers to "prohibited person." The key phrase is "crime punishable by imprisonment for a term exceeding one year." The erroneous characterization of the statute as involving "felon" infects the rest of the court’s opinion, which relies on cases defining "felony" in the immigration context.
Second, the plain meaning of the text forecloses the "felon" construction. Twice this Term, Chief Justice Reinquist reversed lower courts’ construction of statutes because they did not respect the "natural" and "ordinary" meaning of the words used (Arthur Andresen & Leocal). Similarly, "crime punishable by imprisonment for a term exceeding one year," naturally and in the ordinary meaning of the words, does not cover an offense for which the "actual maximum possible term of imprisonment was 12 months."
Third, the court ignores the Firearms Owners Protection Act’s explicit deference to state law, as opposed to the national definitions employed by immigration law definitions of "felony". As blogged here, § 922(g) used to have a federal definition. After the broad interpretation of that definition in Dickerson v. New Banner, Congress, at the behest of the National Rifle Association, enacted FOPA. This statute added § 921(a)(20), which directed that the relevant phrase be defined by reference to state law: "What constitutes such a crime [‘punishable by imprisonment for a term exceeding one year’] shall be determined in accordance with the law of the jurisdiction in which the proceedings were held." The Murillo court ignores Congress’s express reference to state law.
Fourth, the court relies on "similar" arguments in the immigration context in Moreno-Hernandez and Rios-Beltran. The court does not mention the critical difference: the immigration questions depend on the definitions of "felony" and "aggravated felony." § 922(g) contains no reference to "felony." As the court held in Cazarez-Gutierrez, a national standard is necessary in defining "felony" in the immigration context to avoid disparate treatment of aliens. Under FOPA, Congress explicitly rejected the need for national uniformity and directed that the federal crime be defined by deference to the maximum punishment allowed under each individual State’s law. The immigration cases involve a different term, a different statute, and a different allocation of responsibility within the federalist system.
Fifth, the court depended on Marks, a case in which the FOPA issue was not raised. In Marks, the court rejected the argument that a prior conviction could not be used because it had been obtained through the ineffective assistance of counsel. No argument was made that the particular crime could not have been punished by more that one year. A case in which the issue was not raised carries no precedential weight.
That brings us to the sixth point. Let’s assume that the text is not as clear as it seems. What rules provide some guidance? Chief Justice Marshall has an idea: "The rule that penal laws are to be construed strictly, is perhaps not much less old than construction itself" (Wiltberger). How about the "venerable" rule of lenity (R.L.C.)?How about avoiding the constitutional question of whether deeming a crime "punishable" based on facts not pleaded and proved beyond a reasonable doubt to a jury violates the Sixth Amendment (Shepard & Martinez)? Instead, the rule we are left with is that, regardless of the words used, Congress must have intended that the defendant lose.
This is one more statutory area where defense counsel need to persist in asserting their clients' rights. The rules of statutory construction are – in this area – the predicate for the just operation of the criminal justice system. In accordance with the balance envisioned by the Constitution, no act violates federal criminal law unless Congress unequivocally said so. Congress in FOPA unequivocally decided that prosecutors could not make a federal case out of firearms possession in the absence of a prior conviction serious enough that State law authorizes the defendant to receive a term of imprisonment exceeding one year. The Murillo opinion rewrites, rather than interprets, the statute to allow just such a prosecution.
Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon
posted by Steve Sady at 9/14/2005 10:10:00 AM
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