Articles Posted in Firearm offenses

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First, you need the background facts of McIntosh’s first trip to the 11th Circuit. In U.S. v. McIntosh, the defendant was indicted in federal court for distributing crack cocaine and for a firearm related offense. The charges arose from a November 2005 traffic stop when an officer found the drugs and a firearm in the car, but the indictment mistakenly alleged McIntosh committed the offenses in February 2007. The government discovered the mistake after McIntosh pleaded guilty to the charged offense but before his sentencing. To correct this mistake (which the 11th Circuit called a technical error regarding the date of the offense) the government obtained a second indictment alleging the correct date and filed a motion to dismiss the original indictment, which the district court granted. McIntosh entered a conditional plea to the new indictment and reserved his right to appeal the conviction on double jeopardy grounds, and he appealed that sentence. In that appeal (McIntosh I) the 11th Circuit agreed that the second indictment violated the Double Jeopardy Clause of the Constitution because jeopardy attached when the district court accepted the plea on the first indictment and accepting the plea was a conviction. In McIntosh I, the 11th Circuit held the dismissal of the original indictment did not vacate the conviction, so the Double Jeopardy Clause prohibits a second prosecution for the same offense and remanded with instructions to dismiss the second indictment.

After the district court dismissed the indictment the government moved to set McIntosh’s sentencing based on his plea to the original indictment. McIntosh objected on Double Jeopardy grounds and argued the court lacked jurisdiction. He also moved to withdraw his plea. These motions were denied and he was sentenced to 120 months.

In this appeal, which is Mcintosh’s second time on appeal, the 11th Circuit rejected his Double Jeopardy challenge. It found that the dismissal of the original indictment did not terminate his case because the original prosecution did not end. The sentencing that proceeded after his guilty plea could not be characterized as a second prosecution nor was it a second punishment for the same offense.

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Happy New Year everybody. Sandra Day O’Connor, retired Supreme Court Justice participated on the panel for U.S. v. Petite, the first criminal decision for 2013 from the Eleventh Circuit. Judge Marcus wrote the opinion. In U.S. v. Petite the defendant was indicted in a federal court in Florida with federal crime of possession of a firearm by a convicted felon in violation of 18 U.S.C. 922(g). At sentencing the pre-sentence report qualified him for an enhancement under the Armed Career Criminal Act (A.C.C.A) 18 U.S.C. 924(e) because he had three predicate prior felony convictions that were used to apply the enhanced sentence under the guidelines, giving him a range of 188-235 months. The one predicate conviction Petite challenged was a conviction for intentional vehicle flight from a police car in violation of Florida statutes. The Eleventh Circuit upheld the district court’s decision finding the prior conviction is a violent felony under the ACCA based on the Supreme Court’s decision in Sykes v. U.S. which held that a similar conviction under the Indiana vehicle flight offense was a violent felony for ACCA purposes dictated the outcome of this case.

The ACCA provides for a fifteen year minimum enhancement for a violation of the felon in possession statute if the person has three prior felony convictions for a crime of violence or serious drug offense. The provision has three basic categories of qualifying offenses. The first two categories involve specific enumerated offenses, and the vehicle flight conviction did not fall under the first two categories. The third category, the one at issue here, is the residual clause. It consists of those crimes not otherwise enumerated in the statute, which “involve conduct that presents a serious potential risk of physical injury to another.” 924(e)(2)(B)(ii).

Under Supreme Court precedent, court applying the ACCA residual clause to determine whether a prior conviction is a crime of violence must use what the court calls the “categorical approach,” whereby the court must look to the fact of conviction and the statutory definition of the prior offense, and not consider the particular facts disclosed by the record of the conviction. In other words the court must consider whether the elements of the offense are of a type that would justify its inclusion within the residual provision, without inquiring into the specific conduct of the particular offense. Using this approach, the Eleventh Circuit rejected Petite’s attempt to distinguish Sykes by distinguishing the facts surrounding Sykes’ conviction from the detailed facts surrounding his vehicle flight.

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In U.S. v. Thompson the defendant appealed the district court’s denial of his motion to dismiss the federal criminal charge in federal court of possession of a firearm by a convicted felon in violation of 18 U.S.C. §922(g) The defendant in U.S. v Thompson became a convicted felon following his conviction for first degree assault in an Alabama state court in 1994. As a convicted felon he lost the right to possess a firearm under federal law. He also lost the right to vote, the right to hold public office and the right to serve on a jury under Alabama laws. In 2005 he applied to the State of Alabama for restoration of his civil rights and received from the State of Alabama Board of Pardons and Paroles a Certificate of Restoration of Voter Registration Rights. It advised him that his right to vote had been restored in the State of Alabama. The certificate advised Thompson that the “certificate is not a pardon and does not restore, remove or address any other rights , privileges or requirements.” The State also informed him “this certificate serves only the function of allowing you to vote.”

Thompson challenged his conviction claiming that he should not have been convicted under §922(g)(1) because he argued his civil rights had been restored. Section 921(a)(20) excludes any conviction under this statute if the person has had “civil rights restored.” Because the statute does not clarify which civil rights must be restored, prior Eleventh Circuit cases have interpreted this to mean the civil rights must be “unreservedly” restored to qualify for the exception. The open question that was not yet resolved by the court was whether all civil rights must be restored or merely some of them, and if so, which rights. Here the question was whether the restoration of just voting rights is sufficient restoration of civil rights to qualify for the exception under the statute. The court has in the past ruled that the three key civil rights which must be restored to qualify under the statute are: 1) the right to vote, 2) the right to serve on a jury, and 3) the right to hold public office. The Eleventh Circuit relied on a majority (six) of the other circuits that interpret “civil rights” as plural and require more than of these three key civil rights be restored to satisfy the statutory exception to the prohibition of possession of a firearm by a convicted felon. Though Thompson’s voting rights includes several rights, including the right to vote in federal elections, state elections, and the right to vote in primaries, Thompson only had one of the key civil rights restored. The restoration of only one of these key rights does not satisfy the language of §921(a)(20). The restoration of the right to vote by itself was insufficient to satisfy the exception. This issue will likely be seen in Miami and other areas of Florida where persons often try to restore their civil rights after a felony conviction.

The Eleventh Circuit also resolved a subject matter jurisdiction question. Thompson entered into an unconditional plea and raised the issue after plea and before sentencing. The Eleventh Circuit found it was appropriate to address the matter. Normally a guilty plea acts as a waiver to all non-jurisdictional challenges to a conviction, challenges to subject matter jurisdiction in federal court cannot be waived. Thompson’s argument that the indictment fails to charge an offense that implicates the district court’s jurisdiction was not waived by his unconditional plea.

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In U.S. v. Dortch the Defendant was charged in federal court in Florida with the federal crimes of possession with intent to distribute marijuana and carrying and possessing a firearm in furtherance of a drug offense after a search warrant executed at the defendant’s house turned up traces of drugs and tools related to drug distribution (scales and boxes of sandwiches bags). The police found the two firearms in the bedroom and other locations of the house. The federal charges also included the possession of two specific firearms by a convicted felon. The indictment alleged eight of the defendant’s prior convictions, however the government was only allowed to introduce at trial 3 priors because 5 were too old or prejudicial.

The trial court sent a copy of the indictment to the jury unaware it sent the unredacted copy containing reference to the 5 prior inadmissible convictions. One of those was a 1987 conviction for selling marijuana that was identical to one of the charged offenses.

The Eleventh Circuit found that giving the jury the unredacted indictment was harmless error. The government presented an overwhelming case that the defendant possessed a firearm as a convicted felon. The government also presented a strong case that he possessed marijuana with the intent to distribute.

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