District Court Adequately Addressed Duress Argument at Sentencing

US v. Gaspar: Gaspar and a codefendant were charged with conspiracy to distribute methamphetamine after, among other things, a traffic stop (from which Gaspar fled) the led to the recovery of drugs, cash, and a firearm and the search of Gaspar’s home (from which he did not flee) that recovered more of the same. Gaspar pleaded guilty and faced an advisory Guideline range of 324 to 405 months in prison, although the probation officer recommended a downward variance to 210 months. Gaspar argued for a variance down to 120 months (the mandatory minimum) arguing that he was acting under duress during the conspiracy. The district court rejected Gaspar’s request (as well as the Government’s request for a 210-month sentence) and imposed a sentence of 188 months in prison.

On appeal, the Fourth Circuit affirmed Gaspar’s sentence. Gaspar argued that the district court did not sufficiently address his duress argument. The court disagreed, noting that it was addressed specifically during a bench conference and had been raised and argued about by the parties in pre-sentencing memoranda and at sentencing.

Court Rejects As-Applied Challenge to §922(g)(1) – Bruen Changed Nothing

US v. Hunt: On the heels of Canada redux, the Fourth Circuit proceeded to address the question of as-applied challenges to the felon-in-possession statute, §922(g)(1). All the opinion tells us of Hunt is that his §922(g)(1) charge was based on a 2017 West Virginia conviction for breaking and entering.

Before addressing Hunt’s Second Amendment issue, the court first addressed the proper standard of review, given that Hunt had not challenged §922(g)(1) in the district court (Hunt’s plea came before Bruen). Hunt, relying on the Supreme Court’s decision in Class, argued that de novo review was proper, while the Government argued review was only for plain error. Ultimately, the court determined “the prudent course is to assume – solely for the sake of argument – that the plain-error standard does not apply here” and reviewed Hunt’s arguments de novo.

As to the merits, the court rejected Hunt’s as-applied challenge to §922(g)(1) on two alternate bases. First, the court concluded that post-Heller holdings of the Fourth Circuit foreclosed such challenges and nothing in Bruen or Rahimi changed that. This was backed up not only by Canada but by the court’s recent en banc decision in Bianchi. Second, the court concluded that “even if we were deciding this case unconstrained by this Court’s pre-Bruen precedent, Hunt’s challenge would still fail” because felons do not fall within the “people” protected by the Second Amendment. Even if they did, the court concluded that the challenge would fail under Bruen’s historical analysis as there were several examples of relevant “analogues” in the historical record to support disarming felons.

Rahimi Doesn’t Change Canada - §922(g)(1) Not Subject to Facial Attack

US v. Canada: Recall back in June in this case that the Fourth Circuit held that the felon in possession of a firearm prohibition, §922(g)(1), was no subject to facial challenge under the Second Amendment. Canada sought review from the Supreme Court, which granted certiorari under Rahimi and remanded to the Fourth Circuit for further proceedings. The court stated that it “carefully reviewed Rahimi and our previous decision in this case and conclude they are fully consistent.” As a result, the court “re-adopt[ed] and re-issue[d] our previous decision in this case as modified” to discuss Rahimi. The end result is the same - §922(g)(1) is not subject to facial attach under the Second Amendment.

“Reasonable Belief” to Support Gant-Based Search Incident to Lawful Arrest Is Lower Standard than Probable Cause

US v. Turner: Turner was the suspect in the theft of a firearm from his brother and a state warrant for his arrest was issued. The next night, a person alleged that Turner carjacked them using a gun that matched the description of the one stolen from Turner’s brother. Before an additional arrest warrant could be obtained, police responded to a shots fired call at a local convenience store. The officer who had obtained the arrest warrant approached Turner, who was sitting in his car, and arrested him. When that officer went back to the car after securing Turner in his cruiser, another officer was searching the car and found the stolen firearm.

Charged with possession of the firearm (as a felon and because it was stolen), Turner moved to suppress it as the product of an unlawful search of the car. The district court denied the motion, concluding that under Arizona v. Gant the search was proper incident to a lawful arrest because it was reasonable to believe that the car contained evidence of the crime of arrest – namely, the theft of the firearm. Turner entered a conditional guilty plea and was sentenced to 57 months in prison.

On appeal, the Fourth Circuit affirmed Turner’s conviction, although it did vacate his sentence. The court rejected Turner’s argument that the district court erred in concluding that the search-incident-to-a-lawful-arrest doctrine applied. Evaluating Gant, the court concluded that the “reasonable belief” the Supreme Court said is required to search a vehicle after an arrest is a lower standard than probable cause. To hold otherwise would essentially gut Gant (since probable cause allows a search pursuant to the automobile exception anyway). The court did not specify whether “reasonable belief” is the same as “reasonable suspicion” because here the difference did not matter as there was a clear link between the offense of arrest (theft of the firearm) and evidence that might be found in the car where Turner was when he was arrested. As to the sentence, the court agreed with the parties that a prior conviction had been improperly included in the criminal history category and required vacation of the sentence, even applying plain error review.

Appeal Wavier Covers ACCA Sentence Based on Allegedly Incorrect ACCA Designation

US v. Lubkin: Lubkin, who was a convicted felon, was found in a stolen car with a gun. He was charged with carjacking, discharging a firearm during a crime of violence, and being a felon in possession of a firearm. He pleaded guilty to the felon-in-possession, pursuant to a plea agreement in which the Government agreed to dismiss the other charges. In the agreement it provided for the possibility that Lubkin might qualify for an enhanced sentence under the Armed Career Criminal Act and that he waived his right to appeal “the sentence.” At sentencing, the district court, over Lubkin’s objection, concluded that ACCA applied and sentenced him to 180 months in prison.

Lubkin sought to appeal the district court’s decision, but the Fourth Circuit ultimately dismissed the appeal pursuant to the appeal waiver provision of the plea agreement. Contending that the waiver did not cover his appeal, Lubkin argued (1) the district court’s ACCA designation was erroneous, meaning (2) his sentence is above the applicable statutory maximum of 120 months, and therefore (3) his sentence is “illegal” and not covered by the waiver. The court disagreed, essentially concluding that if it didn’t do so it would create a loophole that would always allow appeals in such cases. Ultimately the question is not what the proper statutory maximum should have been, but what it actually was.