Monday, December 12, 2016

No Second Amendment Issue With Prosecution for Selling Unlicesnsed Firearms

US v. Hosford: Hosford sold several firearms to an undercover cop. Hosford did not have a federal firearms license. Therefore, he was charged with multiple counts of unlicensed firearms dealing and conspiracy (a confederate bought the guns at gun shows that Hosford then sold). He entered a guilty plea, preserving the right to appeal the district court's denial of his motion to dismiss the charges as violating the Second Amendment, due process under the Fifth Amendment, and he Commerce Clause.

On appeal, the Fourth Circuit affirmed the denial and Hosford's convictions. On the Second Amendment challenge, it held that Hosford's facial challenge was to the "type of regulation deemed 'presumptively lawful' in Heller and "thus facially constitutional." On the as applied Second Amendment challenge, the court applied intermediate scrutiny (after assuming, arguendo, that the law burdens "conduct protected by the Second Amendment") and concluded that the important Government interests involved in regulating the commercial sale of firearms satisfied that burden. Next, the court held that the unlicensed firearm statute was not unconstitutionally vague, even though it did not clarify whether someone is a "dealer" versus a "collector." The statute "clearly gave notice to Hosford that he ought not to regularly sell firearms that he only purchased and resold for profit." Finally, the court held (joining all the other circuits to consider the issue) that the regulation of commercial firearms transactions falls within Congress's power under the Commerce Clause.

Friday, December 09, 2016

ACCA enhancement upheld

US v. Doctor:  Police in North Charleston, SC, received a call from a woman who claimed Doctor stole her cell phone and was inside a residence there with a gun.  Officers arrived at the location, gave Doctor his Miranda warnings, and questioned him about the firearm.  He lead the police to a pistol on the couch.  Doctor later pleaded guilty to being a felon in possession.

Doctor had two prior convictions for possession with intent to distribute cocaine, and one conviction for South Carolina strong arm robbery.  Doctor objected at sentencing to the characterization of the robbery as an ACCA violent felony.  His objection was overruled.  After receiving the mandatory minimum 15-sentence, Doctor appealed.

On appeal, Doctor argued that his conviction for strong arm robbery should not be a crime of violence for ACCA purposes because a defendant can effectuate a robbery with only a slight threat, and his conviction does not match the force clause requirement that force be directed “against the person of another.”  Further, Doctor argued that his conviction could be committed without an intentional use or threat of physical force.  The Fourth Circuit disagreed with Doctor, and using the categorical approach, found that there was no basis to conclude that Doctor’s robbery conviction could be accomplished with force below the physical force threshold.  The Fourth Circuit concluded that Doctor’s prior conviction qualified as a predicate violent felony within the meaning of ACCA.

Attempt to entice minors conviction upheld

US v. Clarke:  Appellant Clarke challenged his conviction for attempting to persuade minors to engage in sexual activity in violation of 18 U.S.C. § 2422.  He had arranged to meet with an undercover officer who he had met on an incest social networking site, after he had expressed an interest in the officer’s fake minor children; on arrival at the meeting place, police arrested Clarke.  While he was being interviewed, the police inventoried and towed Clarke’s vehicle.  A search warrant was later executed on the vehicle.  During the initial search, police located lubrication, condoms, a bag of candy, and an overnight bag, as well as the officer’s phone number, his age and the ages of the “children.”  A jury found Clarke guilty, and the district court sentenced him to 120 months imprisonment and lifetime supervised release; Clarke appealed.  The Fourth Circuit affirmed.

Clarke argued that the police inventory search, prior to obtaining a warrant, was illegal.  The Fourth Circuit held that the district court properly denied Clarke’s motion to suppress, as the evidence produced by the government (i.e. the departmental inventory search policy and a standard inventory search form signed by the officer who conducted the search) was sufficient to establish that the search was conducted according to the standard criteria.

Next, Clarke argued that the district court violated Rule 30(b) by failing to advise the defendant of how it would instruct the jury before closing arguments.  Here, the Fourth Circuit held that while the district court should have provided its instructions to counsel before closing argument, the violation did not, however, cause Clarke to experience any actual prejudice.  Clarke’s counsel has been able to make any “essential” arguments, because those arguments reflected the instructions ultimately provided by the court, and because the government produced sufficient evidence to convict him under the correct legal standard, the Fourth Circuit found no prejudice.

Clarke also argued that the district court improperly instructed the jury as to the meaning of “induce” under § 2422(b).  The Fourth Circuit held that the terms of the statute in question, “persuade,” “induce” and “entice” are not statutorily defined, but are “words of common usage” and have “accord[ed] them their ordinary meaning.”  Further, in ordinary usage, the court reasoned, these words are effectively synonymous, which it has previously held elsewhere.  The Fourth Circuit held here that the jury instructions were fair and accurately reflected the law.

Lastly, Clarke argued that the government did not provide sufficient evidence to sustain the conviction, and that the district court erred in denying his motion for acquittal.  The Fourth Circuit had to consider here whether 18 U.S.C. § 2422 can be violated when the defendant does not communicate directly with any minors, rather indirectly through an adult intermediary.  The other circuits to consider this question have held that Section 2422(b) extends to adult-to-adult communications that are designed to persuade a minor to commit the prohibited acts.  The Fourth Circuit agreed.  Moreover, the Fourth Circuit found that the government had introduced enough evidence that, taken together, would allow reasonable jurors to conclude that Clarke intended to coerce minors to engage in sexual acts and that he took substantial steps towards doing so.

When choosing the most applicable guideline goes awry

US v. Williams:  In this appeal, the Fourth Circuit reviewed a guidelines challenge, whether the correct guideline was applied, when compared with the actual misconduct charged.  Here, Ernest Lee Williams, Jr. attempted to rob a bank, but didn’t make it inside the building.  The district court applied the robbery guideline at sentencing, mainly because it included an enhancement for targeting financial institutions.  Williams appealed.

The Fourth Circuit agreed with Williams that the misconduct charged here most closely resembled burglary than robbery, and the burglary guideline should have been applied.  The burglary guideline yielded Williams an imprisonment range of 10 to 16 months, while the robbery guideline produced a range of 37 to 46 months; Williams had originally been sentenced to 38 months.

Williams had been indicted, the Fourth Circuit explained, for attempting to enter a back with the intent to commit a felony and larceny therein, i.e., a bank burglary.  There was no mention in his indictment of any element of “force or violence, or [extortion or] intimidation, which is required for conviction of bank robbery” under statute.  The Fourth Circuit states that it is clear that Williams should have been sentenced under the burglary guideline; it vacated Williams’ sentence, remanding for re-sentencing.