Tuesday, June 12, 2018

Guns guns guns

The Tenth Circuit wants us to know a couple of things about gun charges and gun sentencing enhancements.

First, the bitter. In United States v. Melgar-Cabrera, the Tenth Circuit overruled circuit precedent to hold that 18 U.S.C § 924(j) (providing enhanced penalties for section 924(c) deaths) is a discrete, stand-alone crime. It is not just a sentencing enhancement. A person may be convicted and sentenced under section 924(j) even absent a conviction under section 924(c).

And now for the sweet. In United States v. Francis, the Tenth Circuit held that the government must prove two things before a district court may impose the 4-level firearms-trafficking enhancement at USSG § 2K2.1(b)(5). That section applies if (among other conditions) the defendant transferred (or intended to transfer) two or more firearms to another person and knew or had reason to know that the other person's possession would be unlawful because that person had a prior conviction for a crime of violence, a controlled substance offense, or a misdemeanor crime of domestic violence. Got that? Okay. Here's what the government must prove:

(1) that the transferee actually had such a prior conviction at the time of the transfer (i.e., was not just an undercover agent pretending to have such a prior conviction); and

(2) that the defendant knew or had reason to know that the transferee fell into the guideline's narrow category of unlawful possessors (i.e., not just that the defendant knew or had reason to know that the transferee had some garden-variety felony): "The proper focus is on what the defendant knew about the specific transferee, not whether by the law of averages any given customer might qualify as an unlawful possessor as defined by § 2K2.1 cmt. n.13(A)(ii)(I), (B)."

No comments:

Post a Comment