Thursday, March 23rd, 2006

Guidelines Enhancement Valid Despite Incorporating by Reference a Now-Repealed Statute

United States v. Roberts, Docket No. 04-6610-cr (2d Cir. March 23, 2006) (Sotomayor, Raggi, Cedarbaum (by desig’n)) (per curiam): This is an odd one: The Circuit affirms a sentence that included an enhancement under U.S.S.G. § 2K2.1(a)(5), calling for an enhanced base offense level of 18 when the offense “involved a firearm described in 26 U.S.C. § 5845(a) or 18 U.S.C. § 921(a)(30),” because Roberts’s firearm (a Tech 9 pistol) qualified as a “semiautomatic assault weapon” under § 921(a)(30) — even though § 921(a)(30) had been repealed by the time of Roberts’s sentencing. The Court upheld the sentence by reading the Guideline literally, and after noting that it was “aware of no authority that prevents Congress, or the Sentencing Commission acting under congressional authority, from incorporating by reference any definition they choose in the Sentencing Guidelines, whether or not that definition is contained in a currently operative provision of the United States Code.” Op. 4-5. The Court also relied on the fact that § 2K2.1 has been amended twice since the repeal of § 921(a)(30) — and “neither modification removed the Guideline’s reference to the repealed § 921(a)(30).” Op. 4.

The puzzling aspect of the decision is its repeated reference to the fact that § 921(a)(30) was in effect when Roberts committed the offense, even if it was repealed by the time of sentencing. This Blog fails to see the relevance of this fact given the Court’s reasoning. Are there lurking ex post facto concerns we do not see? Please, will someone enlighten this Blog?

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