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Friday, April 7th, 2023

Certiorari petition to watch: United States v. Rahimi, No. 22-915

In United States v. Rahimi, 61 F.4th 443 (5th Cir. 2023), the Fifth Circuit held that 18 U.S.C. § 922(g)(8), criminalizing firearm possession by a person subject to a domestic violence restraining order, was facially unconstitutional in light of N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, — U.S. –, 142 S. Ct. 2111 (2022). In doing so, it became the first — and only — circuit to invalidate a federal criminal statute on Second Amendment grounds.

Within weeks, the government filed a “highly expedited” Supreme Court petition, acknowledging the lack of a Circuit split but contending that the Fifth Circuit’s decision was incorrect, had “significant disruptive consequences,” and “threatens grave harm for victims of domestic violence.”

Rahimi’s response is due on April 20, 2023. Amicus briefs should be due 30 days after that. Bruen aficionados: keep your eyes peeled and start hitting refresh on that …

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Friday, June 5th, 2020

The “realistic probability” test has no role to play in the “categorical approach” when a state statute on its face is broader than the federal definition.

Here’s an important decision you may have missed because it arises in the context of an immigration proceeding rather than a criminal case. In Williams v. Barr, No. 18-2535 (2d Cir. May 27, 2020) (Jacobs, Carney, and Bianco), the Circuit clarified that, under the “categorical approach” for determining whether a state statute criminalizes more conduct than the relevant federal counterpart, the “realistic probability” test has limited application. Specifically, the test does not apply when the text of the statute itself gives it a broader reach than the generic federal definition. And, because the “categorical approach” applies in both immigration cases and criminal cases, this holding should be helpful to many criminal defendants.

Williams fought removal from the United States based on his Connecticut state conviction for unlawful carrying of a pistol or revolver. The Second Circuit agreed with him that, under the “categorical approach,” the state statute criminalized more …

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Wednesday, May 27th, 2020

Second Circuit defines “altered” serial number on a firearm for purposes of the four-level enhancement under U.S.S.G. § 2K2.1(b)(4)(B) to mean that at least one serial number on the firearm is illegible to the naked eye.

In United States v. St. Hilaire, __F.3d__, 2020 WL 2563112 (2d Cir. May 21, 2020), the Second Circuit, in an opinion by Judge Jacobs (joined by Judges Calabresi and Chin), for the first time addressed the meaning of the four-level sentencing guideline enhancement for possessing a firearm with “an altered or obliterated serial number,” under U.S.S.G. § 2K2.1(b)(4)(B). Looking to the rulings of other Circuits, the Second Circuit ruled on two distinct issues pertaining to the enhancement. First, the Court concluded that although a gun may have its serial number on multiple locations, the enhancement applies even if the serial number is “altered or obliterated” in only one of multiple locations. Second, the Court held that for a serial number to be deemed “altered,” the number must be illegible to the naked eye and not merely defaced. The Court affirmed the application of the enhancement in this case based …

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Categories: 922(g), firearms, sentencing

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Friday, August 16th, 2019

Second Circuit Affirms 4-level Enhancement For Using Or Possessing A Firearm “In Connection With Another Felony Offense.”

In United States v. Ryan, No. 17-3919 (2d Cir. Aug. 16), the Circuit affirmed the application of this enhancement under Guideline 2K2.1(b)(6)(B) based on the defendant’s sale of a firearm and drugs in the same transaction to a person to whom he had sold drugs in the past (an informant). The Court held that the firearm sale was “in connection with” the drug sale because it facilitated that sale and future sales. The Court went on to hold that the enhancement would also have been justified under the alternative clause of the Guideline for possessing or transferring a firearm having “knowledge or reason to believe that it would be used or possessed in connection with another felony offense.” The prior sales of drugs to the same buyer gave the defendant “reason to believe” that he was drug dealer and wanted the gun for his business.…

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Tuesday, September 20th, 2016

White House Report: “Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature Comparison Methods.”

The President’s Council of Advisors on Science and Technology today released a report entitled “Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature Comparison Methods.”  You can access the report here.  According to a White House press release, “the study aims to help close the gaps for a number of ‘feature-comparison’ methods — specifically, methods for comparing DNA samples, bitemarks, latent fingerprints, firearm marks, footwear, and hair.”  The report contains a number of recommendations directed at the FBI Laboratory, the Attorney General, and the judiciary as well as the National Institute of Standards and Technology (NIST) and the White House Office of Science and Technology Policy (OSTP).

In cases with feature comparison evidence that was not gathered and evaluated as recommended in the report, the report may support the exclusion of the evidence or provide a fruitful area of cross examination.  It should also help limit the opinions …

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Categories: DNA, expert witnesses, firearms

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Saturday, September 8th, 2012

The Cartridge Family

United States v. Graham, No. 09-2819-cr (2d Cir. August 15, 2012) (Cabranes, Livingston, Carney, CJJ)

Title 18, U.S.C. § 844(h) makes it a separate offense to use “an explosive” to commit a federal felony. During an attempted extortion of one of his fellow-gang members – a dispute over some robbery proceeds – defendant Graham fired a cartridge from his 9-millimeter semi-automatic into the ground. A jury convicted defendant Graham under this section, amongst other offenses; his 50-year sentence included the ten-year mandatory consecutive sentence that the statute requires.

On appeal, however, the circuit agreed that the single cartridge in his semi-automatic handgun did not constitute an “explosive.” It reversed the conviction on the § 844(h) count and remanded the case for resentencing.

Superficially, it would seem like firing a bullet might well trigger the statute (bad pun, I know). Section 844(j) defines “explosive” for purposes of § 844(h) as, …

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Categories: explosives, firearms, statutory construction, Uncategorized

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Sunday, August 28th, 2011

Have Guns, Will Travel

United States v. Nadirashvili, No. 08-4211-cr (2c Cir. August 23, 2011) (Winter, Pooler, Hall, CJJ)

Six-defendant appellants appealed their convictions in a wide-ranging firearms conspiracy that had both international and domestic components. One part of the activity involved trafficking in “foreign defense articles” – here, grenades, warheads, missiles and launchers, amongst other things – under 22 U.S.C. 2278(b), and the other part involved domestic firearms trafficking under 18 U.S.C. § 922(a)(1)(A). Apart from one sentencing glitch, the circuit affirmed.

The opinion contains two interesting discussions of statutory requirements that the criminal activity involve those who are “in the business” of weapons dealing.

First, two defendants argued that there was insufficient evidence to support their § 922(a)(1)(A) convictions because they were aware of only a single gun transaction, and the evidence did not show that they knew the seller was engaged in the business of trafficking in firearms. The court agreed …

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