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March 1, 2006
More on the harsh consequences of old criminal history
As detailed here and here, federal sentencing provisions often produce quite harsh sentencing consequences from long-ago and/or relatively-minor criminal history. (And that's principally why, as detailed here, federal defendants have a powerful incentive to re-litigate any past crimes before their sentencing.) These realities are highlighted today in decisions from the Sixth and Eighth Circuits in US v. Hill, No. 04-6206 (6th Cir. Mar. 1, 2006) (available here) and US v. Anderson, No. 05-1830 (8th Cir. Mar. 1, 2006) (available here).
Both Hill and Anderson uphold the application of mandatory minimum sentences of 15 years under ACCA for the offense of felon in possession of a firearm. In Hill, this lengthy sentence is triggered by two seemingly petty burglaries (of a bolt cutter and a boat motor) that the defendant committed 13 years ago. In Anderson, the Eighth Circuit conspicuously does not even discuss the facts surrounding the triggering felonies, though they appear to involve cases of (clothed? consensual?) sexual contact with a minor that are perhaps a decade old.
March 1, 2006 at 12:03 PM | Permalink
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Comments
Doug, thanks for telling us about Hill and
Anderson.
I would like to propose an alternative way of
attacking the problem of a lengthy sentence for
Possession of a Firearm by a Felon , enhanced b
by the Armed Career Criminal Act.
That is, that Possession of a Firearm by a
Felon is not a substantive crime to which the
Sixth Amendment applies. Therefore, it cannot
trigger application of ACCA.
The reason I say that is because a prior conviction is an essential element of the "offense' of Poss of A Firearm by a Felon.
Since the defendant has already been punished
for the prior conviction, he cannot, consistent with the double jeopardy clause, be punished for the greater offense of Poss of Firearm by Felon.
I believe the legislature can constitutionally
enact a law punishing people who possess a gun after they have been convicted of a felony, but the punishment would be like a contempt action or a violation of a condition of probation rather than a new crime. The Sixth Amendment does not apply to either probation violations or contempt proceedings.
Recidivist laws, and Poss of Firearm is clearly a recidivist law since a prior conviction is an essential fact, have been held to pass double jeopardy muster because they are called a "status" which enhances the punishment rather than a crime. Blakely has made "sentence enhancing statuses" obsolete, to the extent the enhancement elevates the potential punishment above the level allowed by the verdict or plea alone. So, my argument is a catch 22 turned on the state. If Poss of a Firearm is a crime, it violates double jeopardy. If it is not a crime, it is a "sentence enhancer" which cannot serve as a trigger for ACCA or state Habitual Felon Act purposes.
Bruce
Posted by: bruce cunningham | Mar 1, 2006 1:40:19 PM
What I"m trying to find out is what are the guide lines for sentencing a exfelon for possession of a firearm. person in trouble with the law
Posted by: charla | Apr 25, 2007 9:19:48 AM
What I"m trying to find out is what are the guide lines for sentencing a exfelon for possession of a firearm. person in trouble with the law
Posted by: charla | Apr 25, 2007 9:20:04 AM
