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December 7, 2007

Tenth Circuit affirms sentence of almost 20 years for "innocent"(?) posession of ammunition

As How Appealing noted here, a split Tenth Circuit yesterday in US vs. Baker, No. 07-3002 (10th Cir. Dec. 6, 2007) (available here) held "that 'innocent possession' is not a defense to being a felon in possession of ammunition."  The main legal issues and the (disputed) facts in Baker are quite interesting: the defendant claimed that he found on the ground and picked up a clip of ammunition on Halloween night and was on his way to turn this ammunition in to the police when arrested.  Though the story may sound suspicious, the majority rules as a matter of law that even "if a defendant obtains ammunition innocently, with no illicit purpose, and takes adequate measures to rid himself of it as promptly as reasonably possible" he is still criminally liable under the felon-in-possession criminal statutes.

Though the merits of this legal issue divides the Tenth Circuit panel, I am troubled mostly by the long sentence that James Baker ultimately received for his horrific crime of possession a clip of ammunition: a (within-guideline) sentence of 235 months imprisonment!  Because of prior convictions, Baker was subject to armed career criminal enhancement, and thus he will now be in federal prison until roughly the year 2025 for possessing a clip of ammunition.

Though Baker did contest the application of a guideline enhancement based on his prior record, it appears that Baker did not contest the reasonableness of his sentence.  I am not quite sure why, especially given the fact that the within-guideline sentence given here does not seem to reflect the "nature and circumstances of the offense" as 3553(a)(1) requires.  Indeed, the dissenting opinion, though not focused on reasonableness, highlights the realities of the Baker ruling:

The majority’s holding is that, even if the jury believed every part of Baker’s testimony, it is in keeping with Congressional intent that Baker serve nearly 20 years in prison for his conduct. I cannot agree that Congress intended such a harsh and absurd result.

Because the Baker ruling is contrary to a DC Circuit ruling from 2000, a strong cert petition might get Baker a real shot to garner attantion from the Supreme Court.  Indeed, this case seems tailor made for all those Supreme Court clinics looking for good work.

December 7, 2007 at 10:44 AM | Permalink


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There have to be some "innocent possession" defenses. Certainly, someone is entitled to wrest a gun away from an attacker, or pick up a handy one (remember, that he wouldn't be burnt, he is not to be hanged).

I have to confess that I have some misgivings about felon in possession laws. As a practical matter, I think them necessary etc., but I happen to believe that one of the most important rights one can have is self-defense, and a gun is necessary for that. Of course, armed felons cause a lot of problems, and public safety demands that they not be allowed to possess guns. I don't have to like that, though. Maybe a time limit.

Posted by: federalist | Dec 7, 2007 11:19:45 AM

federalist: Sounds like you think, as do I, that felon-in-possession cases raise serious second amendment issues.

Posted by: Doug B. | Dec 7, 2007 11:44:54 AM

I dont think they raise any second amendment issues--people can have voting rights taken away for the commission of a crime. I grudgingly accept felon-in-possession laws as a necessary evil. I think a time limit on the disability may work. Who knows?

Posted by: federalist | Dec 7, 2007 11:53:24 AM

Does any one think that his may raise the question of "cruel and unusual punishment?" This is not the first nonesense sentence i've seen.

Posted by: EJ | Dec 7, 2007 12:16:22 PM

This sentence sounded so incredible to me, I looked up a comparative sentence in the UK for comparison.
The answer seems to be, at the lower end of penalty, a fine or 6 months imprisonment or both, and up to 5 years at the higher end (or 7 years if aggravating circumstances present).

Sensible room there then for a proper assessment of the circumstances, type of ammo and any aggravating circumstances. How can there be such contrast in the perception of Justice here?

Posted by: peter | Dec 7, 2007 12:26:00 PM

Liberal cry babies. The sentence fits right in with enlightened trends in jurisprudence and penology. Consider these five observations:

(1) “The US rate of incarceration is the highest in the world.” Fact Sheet, National Council on Crime and Delinquency (November, 2006), found at http://www.nccd-crc.org/nccd/pubs/2006nov_factsheet_incarceration.pdf

(2)“The current American prison system, is a leviathan unmatched in human history.... with five percent of the world’s population—[it] houses 25 percent of the world’s inmates... Never before has a supposedly free country denied basic liberty to so many of its citizens... We have become progressively more punitive... Despite a sharp national decline in crime, American criminal justice has become crueler and less caring than it has been at any other time in our modern history....”Glenn C. Loury “Why are so many Americans in Prison”(Boston Review 2007)(found at http://bostonreview.net/BR32.4/loury.html);

(3) "The makers of sentencing guidelines succeeded only in contributing to the making of a law of punishment that shows obstinately little concern for the personhood of offenders...a law that tends to treat offenders as something closer to animals than humans, and that has correspondingly sought, more and more frequently, simply to lock them away." James Q. Whitman, Harsh Justice (Oxford Press 2003) paperback ed. at 223 n. 72.

(4) “American punishment is comparatively harsh, comparatively degrading, comparatively slow to show mercy.” Michael Tonry, The Handbook of Crime And Punishment (Oxford Press 1998) paperback ed. at page 3

(5) “Contemporary policies concerning crime and punishment are the harshest in American history and of any Western country.” Id.

Posted by: Michael Levine | Dec 7, 2007 1:16:05 PM

Michael Levine,

What happened to compassionate conservatism?

Posted by: EJ | Dec 7, 2007 3:13:34 PM

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