Saturday, July 21, 2007

Case o' The Week: "Going Rambo in the Ninth," Jimison and 2K2.1(b)(5)

Who doesn't think about "going Rambo," occasionally? Judge Kozinski acknowledges the urge, in a very good opinion limiting a steep and frequent specific offense adjustment in the "gun" guideline, USSG Section 2K2.1(b)(5). United States v. Jimison, __ F.3d __, Slip. Op. 8519 (9th Cir. July 16, 2007), decision available here.

Players: Nice win by AFPD David Merchant.

Facts: Jesse Jimison beat up a girlfriend, got sick from drugs, passed out in an unlocked ranch house, woke up, stole guns, and ended up at a friend’s place. Slip Op. at 8522. He cried, said he’d thought he had killed the girl, that he was going to “go Rambo,” then called the ranch house owner and apologized for stealing the guns and promised to return them. Id. Jimison locked the guns in the trunk of his girlfriend’s car and took off in his friend’s car. Id. He pled guilty to felony possession of guns, and caught an enhancement for having the stolen guns “with the intent of fighting it out with law enforcement if he were caught.” Id. The specific guideline provision at issue gives a four-level bump if the defendant possessed a gun “with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony offense.” Id. at 8253.

Issue(s): “We consider when a defendant can be subject to a sentencing enhancement under U.S.S.G. § 2K2.1(b)(5) (2005) [now § 2K2.1(b)(6)] for possessing a firearm in connection with an offense that he never commits.” Id. at 8522. “There is no dispute that shooting at police is a felony offense – the issue is whether there was sufficient evidence about Jimison’s intent to justify imposing this enhancement.” Id. at 8523.

Held: “We have never considered what constitutes proof that a defendant had ‘knowledge, intent, or reason to believe’ that he would, at some time in the future, commit ‘another felony offense.’ We hold that while the defendant need not actually commit the crime, see United States v. Dodge, 61 F.3d 142, 146 (2d Cir. 1995), the government must produce sufficient evidence that he intended to ‘use[ ] or possess[ ]’ firearms ‘in connection with’ a specifically contemplated felony. The plan to commit the felony need not be fully developed. Thus if a defendant acquires a gun intending to use it in a bank robbery, he need not have cased the location or even identified a specific bank that he plans to rob. But he must have formed a firm intent to use the gun for a felonious purpose.” Id. at 8523. “Under these circumstances, there was insufficient evidence to conclude that Jimison formed a firm intent to have a shootout with law enforcement.Id. at 8526.

Of Note: How does the Ninth Circuit review the application of the Guidelines to the facts? Who knows? Judge Kozinski identifies the intracircuit split, with Kimbrew calling for “abuse of discretion,” Williamson demanding de novo review, and Staten recognizing the conflict. See id. at 8526 n.6.

Conspicuously missing from this list is Rita, the Supreme Court decision that “clarified” that appellate review is for abuse of discretion – or reasonableness – or maybe for procedural problems alone? While Judge Kozinski neatly sidesteps this mess in footnote six, who are we to complain in light of this defense win?

How to Use: This useful decision gives a number of rules for application of this frequent Section 2K2.1 (“gun”) enhancement. First, the government must show more than that the defendant stole the gun to get the enhancement. Id. at 8523-24. Second, Judge Kozinski is skeptical that the vague “Rambo” threats of a scared and confused defendant rose to the level of certainty sufficient to trigger the enhancement. Id. at 8525. The new rule is that this enhancement should not apply when the defendant simply makes a statement about the gun “out of frustration, fear, or grandstanding.” Id.

For Further Reading: Not mentioned in the opinion, but on PACER, is the fact that Jimison got 120 months on this case. Awfully steep for what is essentially a Section 922(g)(1) [felon-in-possession] case – especially when Jimison pleaded guilty!

Steven Kalar, Senior Litigator. Website at


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