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May 13, 2008

More than six years in federal prison for (not quite) bearing arms

Here is an interesting sentencing case for those who claim to be strong supporters of gun rights, as reported in this Baltimore Sun article:

Aaron McCown, a youth football coach embraced by his team despite a criminal past, was sentenced yesterday to 6 1/2 years in prison for using a loaded pistol to intimidate a referee.

Like many others, U.S. District Judge Deborah K. Chasanow seemed to consider McCown an enigma: a man with a lengthy record — including heroin dealing and assault — who earned a community service award from the Johns Hopkins University five years ago for volunteering to help coach the Old Town Gators, a Pop Warner team in East Baltimore, each fall.

"This, I think, is your last chance," the judge told McCown. "You need to figure out what prompted you to do all this back in September 2007 when otherwise you were doing the right things."

Prosecutors portrayed McCown, 32, as a failed role model who betrayed the faith his players had in him.  "This is somebody with a history of aggressive behavior who is bringing a gun to a football field at a youth game," Assistant U.S. Attorney Michele W. Sartori told the judge....

McCown was an assistant coach on one of six Gators teams — the youngest is for 5- to 7-year-olds, the oldest for youths up to age 15 — that played the White Oak Warriors in Montgomery County on Sept. 22.  A referee ended the game early after the team's fans and coaches complained about the officiating.  A police report said an enraged McCown told a referee, "I have something for your [expletive]" before running to a pickup truck to grab a bag containing a gun.  According to the plea agreement, McCown "walked back onto the field toward the referee while holding the bag containing the weapon."  No shots were fired.

Prosecutors asked Chasanow to sentence McCown to seven-and a quarter years, the high end of sentencing guidelines.  McCown was originally accused of possessing a firearm as a convicted felon, a charge that could have sent him to prison for more than 20 years.  He pleaded guilty in March to a lesser charge of knowingly receiving an explosive, a .45-caliber pistol that authorities said contained four rounds of ammunition....

The judge's sentence was between the recommendations of the prosecution and the defense.  His voice quivering, McCown, his hair in dreadlocks and wearing jeans and a black T-shirt, rose before the judge's sentence and acknowledged the emotional harm — and the good — that he had done to the players.  "In some ways I built up the community, and in some ways I destroyed a community," said McCown, who turned 32 on Sunday....

Many on his team and in his neighborhood continue to support him.  About 70 letters, notes and signatures were delivered to the judge on his behalf.  McCown coached in an East Baltimore neighborhood where community leaders say male role models are lacking. Most of the Gators come from single-parent homes. "His players looked upon him as a friend, not just their coach," said a letter to the judge from Andre'a Miles, a family friend. "Mr. McCown made himself available to his players or anyone else who needed help or just needed someone to talk to."...

McCown told the judge he understood that he might not be permitted to coach again in Baltimore, but he said he hopes to work with youths when released.  "What I tried to do was help my kids learn from the mistakes I made," he said.

So McCown will now spend most of his 30s in federal prison because he committed the "crime" of walking toward someone with a gun inside a bag.  Does this really seems just?  Is a sentencing term of 6.5 years necessary as a punishment for this crime of (not quite) bearing arms?  Is this sentencing term consistent with the principles of American society, which professes a commitment to individual liberty and a Second Amendment right to keep and bear arms? 

UPDATE:  The more I think about this case, the more I wonder what libertarians like presidential candidate Bob Barr thinks about this kind of exercise of extreme power by the federal government.  And speaking of extreme government power, it is important to appreciate the impact of the Armed Career Criminal Act (ACCA) in this context.

Based on the newspaper report, it seems Aaron McCown could have — arguably should have — faced a mandatory 15 years of federal imprisonment based on ACCA.  But the the federal prosecutor here apparently was comfortable "nullifying" this congressional mandatory sentencing statute and allowed McCown to plea down to lesser charges (which McCown sensibly accepted to avoid a mandatory term that would have kept him in federal prison until he was nearly 50). 

For those who favor strong enforcement of severe gun laws, this case may justify criticism directed toward federal prosecutors for pushing a plea that nullifies ACCA in this case.  For those who favor strong enforcement of individual rights, this case highlights that the federal government can use extreme federal sentencing provisions to undermine not only gun rights, but also trial rights and liberty rights.

Some related Second Amendment posts:

May 13, 2008 at 08:36 AM | Permalink

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Comments

Well, the facts as recounted in the article make it appear that he could have easily been convicted of being a felon in possession of a firearm, so it's not like his "only" offense was carrying a gun as he threatened the referee. Obviously he agreed to plead to this offense, and the government apparently felt that justice was done through that plea.

Also, as you well know, the Sentencing Guidelines are heavily dependent on criminal history, and it sounds like this individual had a not insignificant criminal past. I fail to see how this sentence is "unjust" or inconsistent with the notion of the Second Amendment that has been expressed by many parties with regard to Heller .

Posted by: steve | May 13, 2008 8:52:39 AM

You are right, Steve, that McCown's new sentence is largely a result of his criminal past. Still, he served/completed whatever sentences were lawfully imposed for his past drug crimes, so his only new crime here was having a gun in a bag while being a felon and walking toward a referee.

Lots of folks are eager to say that those who have committed past crimes lose their Second Amendment rights. Perhaps that makes it easy for those who claim to favor strong gun rights feel no sympathy for Mr. McCown. But I have always thought that a strong belief in a particular right means being willing to protect the possession/exercise of that right by people you do not like and not just people you do like.

And, as I like to do, imagine in this case involved some other "dangerous" item rather than gun. Would we be comfortable with a law making it a crime for any felon to possess a beer because they might drink-and-drive for any felon to possess a computer because it might be used for illegal solicitation?

Posted by: Doug B. | May 13, 2008 9:20:49 AM

Something tells me that Doug has never been threatened with a weapon before.

If we had a crystal ball, then maybe sentences like this one would not be necessary. But we don't. And sentences like these likely prevent other crimes.

Posted by: federalist | May 13, 2008 9:25:01 AM

So, federalist, are you asserting that those who have been threatened by a weapon --- such as the folks who likely supported the blanket DC handgun ban at issue in Heller --- have special authority to determine what qualifies as reasonable restrictions on the Second Amendment?

Aren't the folks supporting the DC ban simply saying that a complete handgun ban in DC "likely prevents other crimes"? If a complete gun ban in a city is not reasonable, why is a complete gun ban of a large population like former felons?

Posted by: Doug B. | May 13, 2008 9:32:33 AM

I agree with Steve's observations and would add this as well.

McCown did more than merely have a gun in his possession while "walking toward a referee." He had a loaded, concealed .45 caliber pistol which he brought with him to the game (why?) and retrieved after cursing out and threatening the referee. He may count himself lucky to have avoided being charged by the local police for assault with a deadly weapon.

Of course it's true that he served his past sentences. Would the picture be prettier if he had NOT served them? The point of increasing a sentence based on criminal history is that, as has been the common and correct understanding both before and during the guidelines, a person's criminal past, or lack thereof, says something important about his future dangerousness and his willingness to live within the law. Both should count in sentencing.

While Doug's hypothetical about the beer is creative, and professorial, I don't think many people are going to think beer has the same potential for grave and immenent harm that a loaded pistol carried in anger does.

The Second Amendment is not my area of expertise; I haven't studied it, and I don't own a gun (and never have). I read Judge Silberman's opinion for the DC Circuit in Heller and found it persuasive, on both textual and historical grounds. But even among those who have long been devoted to Second Amendment rights, I am not aware that there has been support for someone like McCown. We are not talking here about a person previously convicted of some regulatory, malum prohibitum-type felony who is fending off an intruder in his home at 3 a.m. We are talking about a man previously convicted of heroin dealing and assault who wields a loaded pistol in a fit of temper at a POP WARNER FOOTBALL GAME. I suspect that even the strongest gun rights advocates will head for the hills before taking up for Mr. McCown.

Assuming as I do that there is the individual right to keep and bear arms that Judge Silberman described, that right, like any other constitutional right, is subject to reasonable regulation. I doubt there is a court in the country that would find unreasonalbe the prohibition Mr. McCown took it upon himself to flout.

Posted by: Bill Otis | May 13, 2008 10:04:29 AM

Professor Berman,

The short answer as to why the DC gun ban is unconstitutional but laws prohibiting felons from possessing firearm are constitutional is that the Founders and others, including Blackstone, recognized that certain classes of dangerous people should not be permitted to possess firearms. Filtering restrictions on firearm possession through a reasonableness test, as the DC Circuit did, is proper.

Mr. McCown's checkered past, along with the apparent applicability of the ACCA, makes it all the more certain that he is not the poster child for reining in federal firearm laws.

With respect to your felon-in-possession-of-alcohol hypothetical, while I think such a law would be uncommonly silly, I don't think it would be unconstitutional.

Posted by: steve | May 13, 2008 11:55:21 AM

McCown was an assistant coach on one of six Gators teams — the youngest is for 5- to 7-year-olds, the oldest for youths up to age 15 — that played the White Oak Warriors in Montgomery County on Sept. 22. A referee ended the game early after the team's fans and coaches complained about the officiating. A police report said an enraged McCown told a referee, "I have something for your [expletive]" before running to a pickup truck to grab a bag containing a gun. According to the plea agreement, McCown "walked back onto the field toward the referee while holding the bag containing the weapon." No shots were fired.

....

So McCown will now spend most of his 30s in federal prison because he committed the "crime" of walking toward someone with a gun inside a bag. Does this really seems just? Is a sentencing term of 6.5 years necessary as a punishment for this crime of (not quite) bearing arms?

Yes.

Posted by: | May 13, 2008 12:07:42 PM

"And sentences like these likely prevent other crimes."

What a load. Becuase criminals are usually so logically thinking, so risk-reward oriented, that they would say, "hmmm. Maybe I'll get a big long sentence if I act in anger here. Better not." Please.

Sorry, but you'll have to find some other way to justify this crap.

Posted by: Anon | May 13, 2008 12:34:58 PM

Steve, could you provide your citation supporting what the "Founders and others" would think about keeping people who had committed a crime from owning a gun?

Posted by: | May 13, 2008 12:36:20 PM

Steve, I wonder what you'd say about a law that prohibits anyone who drinks alcohol from owning a gun? After all, many persons who drink alcohol -- like many people who have a felony record --- might be "dangerous people [who] should not be permitted to possess firearms."

My point is that the label "felon" --- like the label "alcohol drinker" --- is a poor proxy for who is really likely to be dangerous with guns. Of course, if you think that guns are inherently dangerous (as do the folks who passed the DC handgun ban) I can understand an affinity for a broad and blanket ban on gun possession in certain areas or by certain people.

But if you think guns can readily be used for good (self protection) as well as for bad reasons (intimidation), I do not think you or others should be quick to embrace --- or call reasonable --- crude and broad prohibitions on gun possession.

Posted by: Doug B. | May 13, 2008 1:00:52 PM

The guy is a convicted felon -- with a record not just of heroin dealing but for assault, a violent crime. He knows he isn't allowed to possess a gun. He had one and had the audacity to bring a concealed handgun (something illegal without a permit even if you aren't a felon) to a children's soccer game in the midst of a situation where his lack of anger control was evident, which is why felons aren't allowed to possess guns.

Fifteen years under the ACCA is harsh, but he caught a break and was sentenced to a much shorter six and a half year sentence.

He isn't being charged with menancing (or it seems, even receiving a sentencing enhancement for brandishing).

All told, it sounds very moderate and reasonable as federal sentencing situations go. With good time, he could be back on the streets at 38 years old.

Posted by: ohwilleke | May 13, 2008 1:08:16 PM

Professor Berman,

I think you would be hard pressed to make a serious argument that a law prohibiting those who drink alcohol from possessing firearms is as reasonable as a law imposing a similar prohibition on felons. Ultimately, it boils down to how close the "fit" of the law is to the behavior it is attempting to curtail. As suggested in the amicus brief filed by Texas and 30 other states in Heller, consistent with centuries of common law, courts have repeatedly found that prohibiting particularly dangerous people from possessing firearms is presumptively reasonable and constitutionally valid. Judge Silberman makes the same point in his opinion in the lower court.

With regard to Mr. McCown, the facts bear out that he is indeed dangerous. As has been highlighted by other commentators, he threatened a referee at a children's football game, then took it to the next level by retrieving a loaded firearm from his car. If he is not the kind of individual who should be prohibited from carrying a firearm, and consequently be punished for carrying one, then I do not know who is.

Posted by: steve | May 13, 2008 3:37:29 PM

Again and Again. All Felons cannot be lumped together. For every one of the McCowns there is a person like me who committed a felony (marijuana) in 1986 who learned from their mistakes.

Posted by: BS | May 13, 2008 4:41:10 PM

I think 6.5 years imprisonment for the offense described is outrageous. Yes, the gun was loaded, but it was in a bag. The description does not suggest that Mr. McCown even removed the loaded gun from the bag.

This evening I watched a true crime report (Forensic Files) in which a driver, presumably drunk (although that could not be proven) with seven prior DUI convictions struck and killed a bicyclist and left the scene. He received four years imprisonment for that death.

However, I think that Second Amendment enthusiasts (of which I am one) fear to come to the side of folks like Mr. McCown, because most of us are entirely law-abiding (at least we don't get caught for our minor crimes like speeding) and fear a backlash if we were to support a person who used a loaded gun, even hidden from sight, to threaten a referee a children's sports activity. Protesting an excessive sentence would just get us labeled as knuckle-draggers and fuel the anti-gun, anti-NRA fires all the more.

Because fools rush in where angels fear to tread, I hereby protest the excessive sentence of 6.5 years imprisonment, although I certainly do feel that a serious sentence (I think less than a year) is justified.

Posted by: Conservatarian | May 13, 2008 8:49:55 PM

Why did a convicted felon have a gun in his car in the first place? The point is not whether he drew the gun, but that he possessed it at all. I don't think even the NRA says felons have a 2nd amendment right to guns. Especially considering they don't even have the right to vote.

Posted by: | May 17, 2008 12:36:01 PM

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