Wednesday, August 15, 2012

Heller Challenge Fails Felon in Possession

US v. Smoot: Smoot was arrested outside a home on an outstanding after a tip provided his location.  He was in possession of a firearm and was charged with being a felon in possession.  Prior to trial, Smoot sought to have the jury instructed that (1) under Heller, the Government was required to rebut a presumption that Smoot lawfully possessed the firearm in his home for self defense, and (2) the firearm, while it had moved in interstate commerce at one point, had been out of commerce so long that it not longer effected interstate commerce.  The district court denied those requests.  Smoot was convicted and sentenced to 235 months under ACCA.

On appeal, the Fourth Circuit affirmed Smoot's conviction and sentence.  It construed the additional element argument under Heller as an as-applied challenge to the constitutionality of the felon in possession statute under the Second Amendment.  The court first noted that the record did not support Smoot's attempts to frame the issue in terms of possession of a firearm in his "home," as the record was inconclusive as to whether the home where the police went was Smoot's and, at any rate, he was arrested outside of the home, not inside it.  It the proceeded to reject the as-applied challenge, concluding that there was nothing about his challenge to "remove [it] from the realm of ordinary challenges" which had already been rejected.  As to the interstate commerce instruction, the court concluded that the district court's instruction that movement from one state to another (regardless of how long ago it happened) was enough to show an effect on interstate commerce was a correct statement of binding Fourth Circuit and Supreme Court precedent.  Furthermore, that instruction did not direct the jury to reach a particular conclusion on that element.  Finally, the court affirmed Smoot's sentence, concluding that the district court's denial of acceptance of responsibility was not an abuse of discretion where he contested an element of the offense.

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