Gun laws 18 U.S.C. 924_c_ and Booker by LegionZ411


									Appellate Law & Practice: 18 U.S.C. 924(c) and Booker

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 February 08, 2005
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 18 U.S.C. 924(c) and Booker

                                                                                               Recent Posts
 Cutting a subtle distinction, the Sixth Circuit has ruled that a
 mandatory minimum sentence under 18 U.S.C. 924(c)(1)(B)(i)                                ●   Bush approves execution of
 violates Booker. See United States v. Harris, Nos. 03-                                        Army private
 6207/6255 (distinguishing United States v. Harris, 536 U.S.
                                                                                           ●   CA1: unless discretion is
 545). Today's lucky contestant, William L. Harris, is not to be
                                                                                               exercised, the court can't
 confused with, as Judge Moore informs us he is
 distinguishable from, William Joseph Harris, whose Apprendi                                   review the discretion
 challenge to his 924(c) sentence was affirmed by the
                                                                                           ●   CA1: corporate work product
 Supremes. See United States v. Harris, 536 U.S. 545 (2002).
                                                                                               coming to 1st

 The Supremes' William Joseph Harris was convicted of                                      ●   Which rules of professional
 possessing a firearm in connection with a trafficking offense in                              conduct are violated the
 violation of 924(c). The indictment charged him with                                          most?
 knowingly carrying a firearm during and in relation to a drug
 trafficking crime. This triggers a five-year minimum under                                ●   In the fursuit of justice
 924(c)(1)(A)(i). The indictment made no mention of
                                                                                           ●   CA1: no emotional damage
 "brandishing" the weapon during the offense, which the
                                                                                               for age discrimination
 sentencing judge determined W. J. Harris had done,
 triggering a seven-year mandatory minimum under 924(c)(1)                                 ●   CA1: cooperating gullible
 (A)(ii). The Supremes decided that the indictment stated a
                                                                                               convicts get what they
 complete crime, satisfying Apprendi, as the maximum
 statutory sentence of life was not raised by the judicial
 determination.                                                                            ●   CA1: forfeiture in employee
                                                                                               stock plan okay
 Now comes William L. Harris into the Sixth Circuit. W.L. (1 of 6) [7/29/2008 9:08:52 AM]
Appellate Law & Practice: 18 U.S.C. 924(c) and Booker

 Harris was also charged and convicted with aiding and abeting                             ●   Another one of Judge
 a violation of 924(c). While the omitted fact of "brandishing"                                Bybee’s Torture Memos
 triggered a seven-year mandatory-minimum sentence under                                       released
 924(c)(1)(A)(ii) for W.J., the omitted fact that W.L. Harris
                                                                                           ●   CA1: Armenian petition
 aided and abetted in the use of a semiautomatic assault
 weapon triggered a 10-year mandatory minimum under 924(c)                                     denied
 (1)(B)(i) for W.L. This made all the difference, as Judge
 Moore tells us:                                                                               Recent Comments

                                                                                           ●   Mike on CA1: The trick to
           Although not entirely clear, the Supreme Court has
           implied that § 924(c) sets forth a statutory maximum                                avoiding...
           sentence of life in prison, regardless of whether the                           ●   JFC on CA1: First writes
           sentencing judge finds any of the factors enhancing the
                                                                                               preachy opinion...
           required minimum. See Harris v. United States, 536 U.
           S. 545, 554 (2002) ("Since the subsections alter only                           ●   S. COTUS on CA1: SDO says
           the minimum, the judge may impose a sentence well in                                that monitored...
           excess of seven years, whether or not the defendant
           brandished the firearm."); id. at 574 (Thomas, J.,                              ●   S. COTUS on CA1: SDO says
           dissenting) (referring to "the statutory maximum of life                            that monitored...
           imprisonment for any violation of § 924(c)(1)(A)").
                                                                                           ●   KipEsquire on CA1: SDO
                                                                                               says that monitored...
 The difference seems to be that "brandishing" is a traditional
 sentencing consideration, while the type of gun is not:                                   ●   S. COTUS on CA1: Justice
                                                                                               O’Connor writes opinion...
           We emphasize that our holding on this issue is narrow.
           We do not address the general constitutionality of                              ●   KipEsquire on CA1: Justice
           mandatory-minimum sentences imposed through                                         O’Connor writes opinion...
           judicial fact-finding, a practice explicitly approved by
           the Supreme Court prior to Booker when traditional                                  Archives
           sentencing factors, rather than elements, are involved.
           See Harris, 536 U.S. at 568; see also United States v.                          ●   July 2008
           Koch, 383 F.3d 436, 438-39 (6th Cir. 2004) (en banc),
                                                                                           ●   June 2008
           overruled on other grounds by Booker, 125 S. Ct. 738.
           Instead, we hold only that in light of Supreme Court                            ●   May 2008
           precedent distinguishing those aspects of crimes
           traditionally considered elements from those                                    ●   April 2008
           traditionally considered sentencing factors, the § 924
                                                                                           ●   March 2008 (2 of 6) [7/29/2008 9:08:52 AM]
Appellate Law & Practice: 18 U.S.C. 924(c) and Booker

           Firearm-Type Provision mandatory minimum is not
           binding on a sentencing court unless the type of                                ●   February 2008
           firearm involved is either admitted by the defendant or                         ●   January 2008
           charged in the indictment and proved to a jury beyond
           a reasonable doubt.                                                             ●   December 2007

                                                                                           ●   November 2007
 In reaching this conclusion, Judge Moore seems to comment
 on the "topless guidelines" proposal. To wit:                                             ●   October 2007


           This presents us with a troubling situation. The                                    Categories
           Guidelines range for a § 924(c) violation is the
           minimum statutory range. Booker clearly applies to
           judicial fact-determinations under the (formerly                                ●   AEDPA
           mandatory) Guidelines, but the Booker Court did not
           address whether it applies to fact determinations under                         ●   Antitrust
           (still mandatory) statutory provisions such as § 924(c).
                                                                                           ●   Appellate Advocacy - Books
           The central problem is how to reconcile, for Booker
                                                                                               & Articles
           purposes, the Guidelines mandate (now
           recommendation) of the minimum possible sentence in                             ●   Appellate Advocacy - CLEs &
           a particular factual situation with the apparent                                    Seminars
           possibility of a (rarely, if ever, imposed, see Harris, 536
           U.S. at 578 & n.4 (Thomas, J., dissenting)) maximum                             ●   Appellate Advocacy - Tips
           sentence of life imprisonment for any violation of § 924
                                                                                           ●   Appellate News
           (c). If we look only at the theoretical possibility of a life
           sentence for any § 924(c) violation, the reasoning of                           ●   Appellate Procedure
           Booker suggests that there is no Sixth Amendment
                                                                                           ●   Bankruptcy
           violation. However, under the Guidelines regime, a life
           sentence was only possible — absent an upward                                   ●   Big Cases
           departure — for a person who, having previously been
           convicted for a violation of § 924(c), is again convicted                       ●   Blawg Review
           of violating the subsection, the second time with a very
                                                                                           ●   Booker
           serious weapon. See 18 U.S.C. § 924(c)(1)(C)(ii)
           (mandating life sentence only in the case of a "second                          ●   California Supreme Court
           or subsequent conviction under this subsection" where
           "the firearm involved is a machinegun or destructive                            ●   Civil - Jurisdiction & (3 of 6) [7/29/2008 9:08:52 AM]
Appellate Law & Practice: 18 U.S.C. 924(c) and Booker
           device, or is equipped with a firearm silencer or firearm
           muffler"). Given the severe constraints on imposition                           ●   Civil - Liability
           of a life sentence in the pre-Booker world, it would
           seem strikingly at odds with the principles set forth in                        ●   Civil Forfeiture
           Booker to hold that the sudden advisory nature of the                           ●   Civil Procedure
           Guidelines prevents the (still mandatory) provisions of
           § 924(c) from violating the Sixth Amendment.                                    ●   Constitutional Torts (1983,

 Posted by Sixth Circuit on February 08, 2005 at 10:31 AM in
                                                                                               Bivens, RLUIPA)
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