Monday, April 21, 2014

Gun Guideline Amendments

Largely lost in the furor over the amendments to the drug guideline is the changes to 2K2.1.  These changes minimize the risk of a sentence-busting cross reference, but make it more likely that enhancements are going to apply based on the possession of other weapons.

First, the amendment limits the court's ability to apply a cross reference by making only the gun of which the defendant was convicted of possessing eligible for cross reference fun.  The amendment provides that if
"the defendant used or possessed any firearm or ammunition cited in the offense of conviction in connection with the commission or attempted commission of another offense" a cross reference is available. So if the Government is using the Al Capone strategy by charging your client with possession of a gun to try to sentence him via cross reference for a homicide, this guideline amendment may help if different weapons were involved.

Second, the news is less sanguine concerning the (b)(6)(B) "in connection with" enhancement.  This common enhancement adds four offense levels to a client's sentence if he possessed a firearm in connection with another felony offense.  While the amendment could have limited this enhancement to the firearm that the defendant was convicted of possessing, it did not.  Instead, the Commission deferred to a mushy relevant conduct analysis, asking if  a weapon other than the one the defendant was convicted of possessing was ""part of the same course of conduct or common scheme or plan."

So, say your client is strongly suspected of robbing a grocery store with a shotgun in January.  He is then found with a .22 in August, and convicted of possessing the .22 after suffering a felony conviction.  A robbery cross reference is not available, because the client was not convicted of possessing the shotgun.  But an "in connection with" enhancement may still be available, dependent on how relevant conduct principles operate in the facts of the case.

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