« Federal judge in Oregon orders state to vaccinate inmates along with correctional workers | Main | "After the Sentence, More Consequences: A National Report of Barriers to Work" »

February 4, 2021

Eighth Circuit panel affirms (within-guideline) sentence of 2.5 years for illegal possession of a single bullet

Decade of study can make one nearly numb to the variety of remarkable stories involving our criminal justice systems ordering people to live long periods in cages for what seems like relatively minor crimnal activity.  But I was still struck by an Eighth Circuit ruling this week in US v. Brown, No. 20-1377 (8th Cir. Feb 2, 2021) (available here), highlighting how minor convicted conduct can lead to major federal prison time.  Here are the basics fron a unanimous per curiam unpublished opinion (with cites removed):

The district court1 sentenced Deaviea David Brown to 30 months of imprisonment after Brown pled guilty to being a felon in possession of ammunition—a single bullet. See 18 U.S.C. §§ 922(g)(1), 924(a)(2). On appeal, Brown contends that sentence is substantively unreasonable and violates the Eighth Amendment. We affirm....

Because Brown’s sentence is at the bottom of the Guidelines range, we presume the sentence is reasonable. Brown did not rebut that presumption.  We also note that during the sentencing hearing, the district court specifically addressed the § 3553(a) factors.  We see no basis to conclude either that the district court improperly weighed the § 3553(a) factors or that the sentence it imposed was substantively unreasonable....

[T]he proportionality principle in Eighth Amendment law is quite limited. Under this standard, the proportionality argument presented simply lacks sufficient basis for this court to conclude that Brown’s sentence — which was at the bottom of the recommended Guidelines range — is one of those “exceedingly rare” cases that raises the gross-disproportionality inference.  While 30 months of imprisonment for possession of a single bullet may seem, on its surface, disproportionate, the penalty relates to the prohibition on convicted felons possessing ammunition of any amount. The sentence does not violate the Eighth Amendment.

I have not yet found any more information about the district court sentencing online, but I would guess there is a significant backstory as to why Mr. Brown was federal prosecuted and sentenced to 2.5 years in federal prison for possession of a single bullet. (There was a significant backstory when the Sixth Circuit affirmed a 15-year ACCA sentence for possession of seven shotgun shells some years ago.)  But I am always troubled when a serious sentence is based on some unclear backstory rather than on the seriousness of the actual offense conduct that produced the conviction.

Notably and annoyingly, the panel keeps stressing that the 30-month sentence here was at the bottom of the applicable guideline range.  For me, that fact serves to condemn the federal sentencing guidelines, not justify this extreme sentence.  It is also an important reminder that, even 15+ years after Booker made the guidelines advisory, they still have an adverse impact on justice and still need a thorough rewrite.

I am especially troubled by the facile rejection of the Eighth Amendment claim by the panel in these terms: "While 30 months of imprisonment for possession of a single bullet may seem, on its surface, disproportionate, the penalty relates to the prohibition on convicted felons possessing ammunition of any amount."  This strike me as tantamount to a statement that there could never be a constitutionally disproportionate sentence for shoplifting a candybar because a severe penalty is critical to keep people from stealing any amount of goods.  Put simply, 30 months of imprisonment for possession of a single bullet does seem disproportionate, and the Eighth Circuit panel should have at least conducted a full Eighth Amendment proportionality analysis (which would show, I think, that this this behavior is not even criminal in many states and not a felony in most).

February 4, 2021 at 12:00 PM | Permalink


It appears that there was a significant backstory. A gang affiliation; a disturbance; perhaps drugs involved and others there at the time of the arrest had firearms. The government details the matter in its Sentencing Memo.

Posted by: John Webster | Feb 4, 2021 5:22:43 PM

About 2003, I was serving time at FCI Manchester, Kentucky with a man who had a 15 year sentence as an Armed Career Criminal (or as a Career Offender) after agents found a single shotgun shell in the door pocket of his father's pickup truck, which was sitting in the driveway of the father's home, while the son ate Sunday dinner with his parents. There were no fingerprints found on the shotgun shell. The son was convicted of CONSTRUCTIVE possession of ammunition by a felon, and based upon his prior criminal history, he qualified for ACCA treatment. I thought it was one of the craziest cases I had ever seen.

Posted by: Jim Gormley | Feb 4, 2021 10:15:53 PM

I had a client that got a year for an assorted handful of bullets. He was a homeless man stopped for jaywalking. He’d found the bullets and thought he could trade them for a couple bucks or some food. The public spent $35k imprisoning him. Why the Eighth Circuit failed to comment on the false uniformity of 2K2.1 is that they lack any kind of care into what they’re doing. The fact that the guideline is the same for a single bullet as a loaded Glock tucked into the waistband is an indictment of the Commission.

Posted by: FPD | Feb 4, 2021 11:43:57 PM

Wow. Truly unbelievable. Thanks for bringing light to this.

Posted by: Deanna | Feb 5, 2021 4:36:09 AM

The Government's Sentencing Memos invariably include a lot of coulda woulda mighta

Posted by: Brenda Rossini | Feb 5, 2021 9:35:53 AM

Do you have a link to the sentencing memo, John Webster?

What always bothers me about these kinds of cases is the failure to secure a conviction for any "disturbance" or "perhaps drugs" or "firearms." In our system, the authorities should have to convict persons for their criminal behavior before punishment them for it. Here, the feds only convicted on the illegal possession of a single bullet and seemingly used that as the means for punishing for all sorts of other stuff (none of which had to be proven BRD to a jury).

This case seems kind of like putting someone in prison for years because she was convicted of jaywalking while wearing a Trump hat near the Capitol on Jan 6 and there was a backstory about facebook postings and weed.

Posted by: Doug B. | Feb 5, 2021 9:41:39 AM

There was more evidence than just the 9 mm round in Brown's pocket. According to the Government's appellate brief, Brown was taken into custody due to an outstanding arrest warrant for something else (not identified), when the round was seized.

As part of a lawful search warrant of a phone belonging to Amiah Jackson (who had been legally purchasing weapons to supply to gang members) shortly thereafter, police found "numerous pictures of Jackson and others, including Brown, in possession of firearms. Additionally, the police were monitoring various Snapchat accounts related to this investigation and had obtained search warrants to obtain information from Snapchat related to those accounts. Snapchat is a social media website where users can post photographs or short videos for others to view. [Police investigator] Villamonte found several photographs of Jackson, Brown, and others in possession of firearms.

"At Brown’s sentencing hearing, the district court received into evidence Government’s Exhibits 6 through 11. Each of the six photographs depict Brown and Jackson in possession of firearms. The evidence showed that those photographs were taken between May 3, 2019 and June 2, 2019. Some of the pictures were obtained from monitoring Jackson’s Snapchat account in May 2019. Exhibits 10 and 11 were obtained from searching Jackson’s phone, and those two images showed a creation date of May 11, 2019."

After seeing all of this evidence, the sentencing judge declined to vary downward from the sentencing range. Not that surprising, I would say...

Posted by: Tom Root | Feb 7, 2021 8:27:54 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB