Archive | 922(g)

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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Categories: 922(g), firearms, sentencing

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Tuesday, April 28th, 2020

Some Summary Orders: Bikes, Guns, Fines

On April 27, 2020, the Second Circuit issued three summary orders in criminal matters.

In United States. v. Cuello, No. 19-2053, the Circuit affirmed a district court’s denial of suppression of a gun found during a traffic stop. This “traffic” stop was of a bike that did not have proper “head and tail lights,” in violation of New York Vehicle and Traffic Law § 1236(a). During the stop, police asked the bike rider for identification and his “bicycle registration.”

Did you know that “bicycle registration” is a thing? Apparently, the Syracuse Revised General Ordinances, Section 29-1 requires every person in the city of Syracuse who owns a bicycle operated in the city to register that bicycle “with the chief of police.” Well.

When the bike rider failed to produce his registration, police asked him about a black backpack he was wearing. Because how suspicious is it to be riding …


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Categories: 922(g), fine, reasonable suspicion, Rehaif, traffic stop

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Saturday, March 28th, 2020

A Note on § 922(g) Clients

As the defense community continues to focus on clients at elevated risk during the COVID-19 pandemic, a recent ruling from the Fourth Circuit offers new support for vacating the convictions of clients who pleaded guilty to gun possession in violation of 18 U.S.C. § 922(g).  An element of that offense is that, at the time the defendant possessed a gun, he “knew he belonged to the relevant category of persons barred from possessing a firearm.”  Rehaif v. United States, 139 S. Ct. 2191, 2200 (2019).  For most clients, that means knowing of a prior conviction for “a crime punishable by imprisonment for a term exceeding one year.”  § 922(g)(1).

In United States v. Gary, ___ F.3d ___, 2020 WL 1443528 (4th Cir. Mar. 25, 2020), the court held the failure to advise a defendant of the Rehaif element at his guilty plea is “a structural error that requires …

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Categories: 922(g), Rehaif

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Categories: 922(g), Rehaif

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Monday, June 24th, 2019

In a 7-2 decision, the Supreme Court holds that in prosecutions under 18 U.S.C. § 922(g) and § 924(a)(2), “the Government must prove both that the defendant knew he possessed a firearm and that he knew he belonged to the relevant category of persons barred from possessing a firearm.” Rehaif v. United States, Sup. Ct. No. 17-9560, __ S.Ct.__, 2019 WL 2552487 (June 21, 2019).

The Supreme Court holds that, to convict a defendant of violating § 922(g) and § 924(a)(2),  the government must show not only that the defendant knew he possessed a firearm, but “also that he knew he had the relevant status when he possessed it.” Opinion (“Op.”)  at 1. The Court states: “We conclude that in a prosecution under 18 U.S.C. § 922(g) and § 924(a)(2), the Government must prove both that the defendant knew he possessed a firearm and that he knew he belonged to the relevant category of persons barred from possessing a firearm.” See Opinion (“Op.”) at 11 (emphases added).

This holding was reached in a 7-2 decision in Rehaif v. United States, Sup. Ct. No. 17-9560, 2019, __S.Ct.__, WL 2552487 (June 21, 2019), authored by Justice Breyer. Justice Alito filed a dissenting opinion joined by Justice Thomas.

Petitioner Ali Rehaif came to the United States “on …

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Categories: 922(g), mens rea

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Categories: 922(g), mens rea

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Thursday, August 31st, 2017

Judge Caproni Dismisses § 922(g) Charge for Lack of Venue

Yesterday, Southern District Judge Valerie Caproni dismissed an indictment for lack of venue. The indictment charged a defendant with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). Judge Caproni’s opinion, however, is valuable beyond the § 922(g) context as a concise primer on a difficult-to-parse set of venue cases.

The opinion and order are available here.

Section 922(g) makes it unlawful for a person convicted of a felony  to “possess in or affecting commerce, any firearm or ammunition.” In this case, United States v. DeJesus, Port Authority police stopped the defendant at the New Jersey entrance to the George Washington Bridge and found a handgun while searching his car. The government conceded that Mr. DeJesus did not possess a firearm in New York, but contended that venue was proper in the Southern District because “he was about to use an instrumentality …


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Categories: 922(g), interstate commerce, venue

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Thursday, March 9th, 2017

The Dismantling of the Holder Memo Begins

It looks like the work of dismantling the progress made under the Holder memo has begun.

Attorney General Jeff Sessions has issued a memo directing US Attorneys to work with local law enforcement to identify the ‘criminals’ in their districts who are driving violent crime and prosecute them federally using all available tools. You can read the memo here. An additional memo on charging decisions in all criminal cases will follow.…


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Categories: 922(g), 924(c), Hobbs Act, RICO

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Tuesday, September 13th, 2016

Third Circuit Upheld Two As-Applied Challenges to 18. U.S.C. 922(g)(1)

Last week, the Third Circuit, sitting en banc, upheld two as-applied challenges to 18 U.S.C. 922(g)(1), holding that it was unconstitutional as applied to individuals who have not previously been convicted of a felony involving violence.  You can read the decision in Binderup v. Attorney General, 14-4550, 14-4549, here.

The Court itself described the opinion as “fractured,” and helpfully included a Section IV with instructions for applying the case to future as-applied challenges to 922(g)(1).  The Court explained that the steps to an as-applied challenge are governed by the Third Circuit decision in United States v. Marzarella, 614 F.3d 85 (3d Cir. 2010).  A person challenging the constitutionality of 18 U.S.C. 922(g)(1) must first demonstrate that the law burdens conduct protected by the Second Amendment.  To do so, the challenger must prove that he was not previously convicted of a serious crime.  Evidence ofthe challenger’s rehabilitation or likelihood of …

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Categories: 922(g)

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