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September 15, 2008

An argument that the Second Amendment and Heller should help Weldon Angelos

Regular readers should recall the name Weldon Angelos; Angelos was subject to federal mandatory sentencing terms of 55 years because of gun possession linked to three small hand-to-hand marijuana sales in a public parking lot.  Regular readers may also recall from this post that, upon the request of Weldon's sister, a pro bono legal team (of which I am a part) filed a lengthy 2255 motion in December 2007 making an array of constitutional arguments on Angelos's behalf.  (The original motion is available at this link, and the government is scheduled to file its response in the near future.)

Today marks another chapter in this legal story because this same legal team has just filed a motion for partial summary judgment based in large part on the Second Amendment as it is now understand after Heller.  The 20-page memorandum filed in support of this motion is available for download below.  As I have indicated before, because I am essentially counsel of record, I do not plan to discuss or debate the merits of the motion on this blog.  However, I am hopeful that everyone interested in the meaning and reach of Heller and the Second Amendment will take the time to read and reflect upon the arguments we make in this motion.  Here is how we introduce these arguments from the memorandum:

Though the government may eventually dispute some facts set forth in the 2255 motion, there is no dispute that Angelos had no adult criminal record prior to the instant case and that he was subject to 55 years of mandatory federal imprisonment based principally on allegations of possession of firearms in his home, in his car, and on his person.  Specifically, the firearms providing the basis for one 25-year mandatory sentencing term were those present within Angelos’s home.  And though there is a dispute concerning whether Angelos possessed a firearm during the marijuana sales engineered by the government’s informant, there is no evidence whatsoever or even any serious allegation that Angelos actively utilized firearms to facilitate three uneventful hand-to-hand marijuana sales. Nevertheless, on the basis of (suspect and perhaps incredible) testimony of a single government informant, who belatedly asserted that Angelos possessed a firearm during two marijuana sales, the district court felt obliged under statutory sentencing provisions to impose another 30 years of federal imprisonment.

In light of the Supreme Court’s broad and forceful recognition of the right of all citizens under the Second Amendment to possess firearms to effectuate “the inherent right of self-defense,” District of Columbia v. Heller, 128 S. Ct 2783, 2817 (2008), the extreme sentence imposed upon Angelos for gun possession are now clearly unconstitutional and his 55-year sentence must be at least partially vacated. As explained more fully below, the Supreme Court’s landmark Heller ruling as applied to the unique facts of this case render unconstitutional (1) the Government’s pursuit of a superseding indictment threatening a 25-year mandatory prison sentence based on the presence of guns within the Angelos home, and (2) the imposition of 55 years of federal imprisonment Angelos is now serving based on his gun possession.

In addition, the Heller ruling, considered together with the Supreme Court’s most recent explication of Eighth Amendment jurisprudence and its application in Kennedy v. Louisiana, 128 S. Ct. 2641 (2008), confirms that the 55-year federal prison term that Angelos is serving based on the possession of firearms is constitutionally excessive. Indeed, the combined force of the Heller and Kennedy rulings, along with the notable and constitutionally significant public reactions to both decisions, make plain that the sentence Angelos is now serving violates “the evolving standards of decency that mark the progress of a maturing society.”  Id. at 2664 (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958)).

Download angelos_v. U.S. - Memo re MSJ.pdf

A few related posts on the legal history of the Angelos case:

September 15, 2008 at 03:14 PM | Permalink


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Was Angelos eligible to serve in the militia, the national guard, in his home state. If so, I would argue that all words of the Second Amendment be read together. If he was eligible to serve in the militia, then his right to bear arms may not be infringed. He is "people". A well regulated militia is necessary to the security of the free state of California. These interests are truncated and his rights erased if his right to keep and bear arms is infringed.

The people living along the road to Concord during Paul Revere's ride would understand these basic premises. Keeping arms and bearing arms are two separate forms of conduct. Neither keeping nor bearing is "flourishing". Angelos' weapons at home were merely keeping. If he had a weapon on his person at the time of the hand to hand pot sale, did he flourish? Was the gun on his person confiscated? Was it operable or capable of lethal use?

Sending someone to prison for 30 years because they had a gun at home when they sold pot elsewhere is tyrannical. The NRA needs to get some of its act together and pressure Congress to repeal these unconstitutional laws. The NRA reminds me of AARP in their Divided We Fail ad campaign. They talk a game but do nothing for healthcare. The NRA is good at getting bumper stickers on the back of pickup trucks but does little to repeal these oppressive laws.

Keep up the good work Doug.

Posted by: mpb | Sep 16, 2008 6:15:25 AM

Wow! How can these prosecuters sleep at night knowing that they gave a first time non violent offender a life sentence for marijuana. This is not Justice!

Posted by: BS | Sep 16, 2008 9:45:52 AM

The judge didn't have to impose the 55-year sentence. Sentencing guidelines are guidelines, not mandatory, as the SC has ruled.

More importantly, the due process and jury rights of the accused were almost certainly abused by not allowing all issues of law (except those that cannot be made without revealing evidence properly excluded) to be made in the presence of the jury (assuming there was a jury, since the U.S. Constitution states: "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury." III:2:3).

See Stettinius v. United States, 22 F. Cas. 1322 (1839); 5 Cranch C.C. 573 — Defense in criminal trial has right to argue law before jury until bench rules on motion. http://www.constitution.org/usfc/fc/22/Stettinius_v_US.htm

Posted by: Jon Roland | Sep 16, 2008 3:11:21 PM

There is a discussion on this at the Volokh Conspiracy blog. http://volokh.com/archives/archive_2008_09_14-2008_09_20.shtml#1221591195

Posted by: Jon Roland | Sep 16, 2008 3:14:02 PM

An interesting and inciteful book on this issue is Stephen Halbrook's: Freedmen, The Fourteenth Amendment & The Right To Bear Arms. Greenwood Press. Out of print, available in law libraries. This scholarly work studies the Congressional archives and demonstrates that the Committee of 15, intended that the 14th Amend incorporate the Second Amend and intended, as evidenced by statutes then passed concurrently, that freed slaves have the rights of the "people" to keep and bear arms.

The Angelos case demonstrates how the government uses gun laws arbitrarily to tyrannize minority communities. One never sees the feds going out to homes of wealthy white collar criminals (Scooter Libby, Marc Rich, "Kenny Boy" Lay from Enron) to check for guns so that they can gas up their sentences on the charges of perjury or thefts of billions.

Posted by: mpb | Sep 17, 2008 5:08:16 AM

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