Saturday, November 1, 2014

2014 Guideline Amendments: 2K2.1 Felon-in-Possession

Today the new guidelines are in effect. Most of the attention has rightfully gone to the new drug quantity table, aptly known as Two-Off because, well, the guideline dropped off two levels for all drugs. But there are other amendments that need attention, including changes to the felon-in-possession guideline that may result in a lower guideline for our gun-friendly clients. Not many, though, because the change is only a subtle shift in analysis. 

First, the "in connection with" special offense characteristic, listed at 2K2.1(b)(6)(B). This adds four levels if the weapon was possessed in connection with a felony offense. The Tenth Circuit has construed this rather broadly, to say the least. But the amendment limits application to felony offenses that were relevant conduct to the weapon possession, that is, part of the same course of conduct or common scheme of plan. Relevant conduct, as we know, casts a wide net, but (theoretically) not as wide as the previous version of (b)(6). The change in language is not in the text of (b)(6)(B), but in the entirely new Application Note 14(E), full text after the jump.

Second, incorporating the (b)(6) relevant-conduct amendment is the (c)(2) cross-reference (which is sneaky and can be rather lethal, jacking the guideline up to the ten-year mandatory max). Before, it applied if the "in connection with" felony scored higher on the corresponding guideline. Now, (c)(1) "contains the additional requirement that the firearm or ammunition be cited in the offense of conviction." This change is both in the text and Application Note 14 (A) and (E).

Unfortunately, neither amendment is retroactive.

PDF of the 2014 Guidelines is here.

Also, following up on Dan's post last week, remember the "one book" rule: whichever version of the guideline is more beneficial -- either the one at the time of the offense or the version at the time of sentencing -- can be applied, but that entire book controls. You can't just pull out one guideline from 2009 and use 2014 for the rest of the calculation.


(E)   Relationship Between the Instant Offense and the Other Offense.—In determining whether subsections (b)(6)(B) and (c)(1) apply, the court must consider the relationship between the instant offense and the other offense, consistent with relevant conduct principles. See §1B1.3(a)(1)–(4) and accompanying commentary.

In determining whether subsection (c)(1) applies, the court must also consider whether the firearm used in the other offense was a firearm cited in the offense of conviction.

For example:

(i)   Firearm Cited in the Offense of Conviction. Defendant A's offense of conviction is for unlawfully possessing a shotgun on October 15. The court determines that, on the preceding February 10, Defendant A used the shotgun in connection with a robbery. Ordinarily, under these circumstances, subsection (b)(6)(B) applies, and the cross reference in subsection (c)(1) also applies if it results in a greater offense level.

Ordinarily, the unlawful possession of the shotgun on February 10 will be "part of the same course of conduct or common scheme or plan" as the unlawful possession of the same shotgun on October 15. See §1B1.3(a)(2) and accompany¬ing commentary (including, in particular, the factors discussed in Application Note 9 to §1B1.3). The use of the shotgun "in connection with" the robbery is relevant conduct because it is a factor specified in subsections (b)(6)(B) and (c)(1). See §1B1.3(a)(4) ("any other information specified in the applicable guideline").

(ii)   Firearm Not Cited in the Offense of Conviction. Defendant B's offense of conviction is for unlawfully possessing a shotgun on October 15. The court determines that, on the preceding February 10, Defendant B unlawfully possessed a handgun (not cited in the offense of conviction) and used the handgun in connection with a robbery.

Subsection (b)(6)(B). In determining whether subsection (b)(6)(B) applies, the threshold question for the court is whether the two unlawful possession offenses (the shotgun on October 15 and the handgun on February 10) were "part of the same course of conduct or common scheme or plan". See §1B1.3(a)(2) and accompanying commentary (including, in particular, the factors discussed in Application Note 9 to §1B1.3).

If they were, then the handgun possession offense is relevant conduct to the shotgun possession offense, and the use of the handgun "in connection with" the robbery is relevant conduct because it is a factor specified in subsection (b)(6)(B). See §1B1.3(a)(4) ("any other information specified in the applicable guideline"). Accordingly, subsection (b)(6)(B) applies.

On the other hand, if the court determines that the two unlawful possession offenses were not "part of the same course of conduct or common scheme or plan," then the handgun possession offense is not relevant conduct to the shotgun possession offense and subsection (b)(6)(B) does not apply.

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