Thursday, July 9, 2020

Which gun with which offense?

A person convicted of a drug crime with a mandatory minimum is eligible for the safety valve--and thus freed from the mandatory minimum--if, among other requirements, he did not "possess a firearm or other dangerous weapon. . . in connection with the offense." 18 U.S.C. § 3553(f). In United States v. Hodgkiss, the Eighth Circuit held that “the offense” strictly means the offense of conviction, and does not include relevant conduct. In Hodgkiss, the defendant pleaded guilty to a drug-trafficking offense in April 2018 that did not involve a gun, and also pleaded to possessing a weapon during a different drug-trafficking offense two months later. The court held that the defendant did not possess the gun in connection with the April 2018 drug-trafficking offense he was convicted of, even if both episodes were part of the same relevant conduct for sentencing guideline purposes.

Although it doesn't appear that the Tenth Circuit has addressed this statutory-interpretation question directly, this holding is consistent with what the Tenth Circuit has said. For example, in United States v. Hargrove, 911 F.3d 1306, 1328 (10th Cir. 2019), the court emphasized that for the safety-valve requirements, possession of a weapon does not include a codefendant's weapon, and means an "active possession whereby there is a close connection linking the individual defendant, the weapon and the offense.”  

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