Federal Crimes Outline - Professor Bolitho - Campbell Law - Part 4

c. 18 U.S.C. § 924(c) Use of a Firearm in a Crime of Violence/Drug Trafficking

1. § 924(c)(1)
   1. First Offense
      1. Mandatory minimum for using a gun during a crime
         1. Use/carry/possessed = 5 years
         2. Brandished = 7 years
            1. Brandish—display any part for the purpose of intimidation
         3. Discharged = 10 years
   2. Second Offense
      1. Standard = 25 years
      2. Machinegun = life
   3. Other aspects
      1. No probation allowed to undercut the jail-time
      2. No concurrent sentencing
   4. Crime of Violence—924(c)(3)— (1) is a felony and (2) an element of it is violent.
2. § 924(c)(3) Defining “Crime of Violence”
   1. (A) Elemental Prong
      1. The crime has as an element, the use or threat of physical force against a person or property
   2. (B) UNCONSTITUTIONAL (Davis) Residual Clause
      1. “that by its nature involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”
3. § 924(c)(5) Drug Crimes and AP rounds
   1. Standard = 15 years minimum
   2. Causes death:
      1. Murder = life
      2. Manslaughter = see § 1112

d. 18 U.S.C. § 924(e) Armed Career Criminal Act

1. NOT a crime. Just a sentencing enhancement
2. Requirements to qualify
   1. 3 previous convictions
      1. Current crimes do NOT count. Fair Step Act
   2. Each of which had a potential for more than 1 year in jail.
   3. For:
      1. Violent felonies OR
         1. A felony is “violent” if it (1) prior had an element of actual or threatened physical force; (2) was for burglary, arson, extortion, or involved explosives.
            1. Originally included a residual clause for “conduct that included a potential risk of serious physical injury,” which was declared void for vagueness by Johnson.
      2. Serious drug offenses
         1. Serious Drug Offense—any offense with a potential for 10 years imprisonment or more, which often varies by state.
3. Result—15-year mandatory minimum

e. Jury Instructions

1. Possession by a Convicted Felon (2 mens rea)
   1. Elements
      1. Prior conviction with over 1-year possible jail time
      2. Knowing possession of this firearm
      3. D knew of his prior conviction
      4. Firearm has crossed state lines
2. Use or Carry during and in relation to violent/drug crime
   1. Elements
      1. D committed underlying crime
      2. Knowing use or carry of a gun
      3. Use or carry was in relation to the underlying crime
   2. “Use or carry”
      1. “carrying” includes having it in a readily accessible location such as the trunk of a nearby car
      2. “Use” contemplates active employment. Does NOT need to be employed as a weapon
   3. “During and in relation to”
      1. The gun had a purpose or effect with respect to the crime charged
3. Possession in Furtherance of violent/drug crime (see King below)
   1. Elements
      1. D is guilty of underlying crime
      2. D knowingly possessed the gun
      3. Possession was in furtherance of the underlying crime
   2. In furtherance—to advance or promote the crime
      1. Factors
         1. Location/availability for use
         2. Loaded?
         3. Type of weapon
         4. If possession was legal
         5. Type of crime
         6. Time and circumstances of finding the gun
4. Aiding and Abetting
   1. No commission of a crime is actually required, only need to show that he intentionally helped or encouraged someone
   2. Elements
      1. Underlying crime was committed
      2. D helped or encouraged another in committing the crime
      3. D intended to help or encourage
         1. Must have advance knowledge. i.e., knowledge at a time the D can attempt to alter the plan or withdraw
         2. NO requirement he knew of the plan to use the gun prior to the crime
            1. He is deemed to have advance knowledge of the gun where he learns of the gun and still has time to withdraw
5. Possession Offenses/Domestic Violence—§ 922(g)
   1. Requirements
      1. The prior conviction MUST:
         1. Have “force” as an element AND—Castleman
         2. Person committing the crime had a domestic relationship with the victim—Hayes
   2. U.S. v. Hayes (2009) (Ginsburg)
      1. NO requirement that an element of the predicate crime be “that the relationship between the aggressor and victim was domestic.” BUT that relationship must be proven BRD
      2. “Domestic relationship” includes: parent, guardian, child, cohabitant, shared child, or someone similarly situated
   3. U.S. v. Castleman (Sotomayor) (2014)
      1. Force—the slightest offensive touching
      2. “violence” in the domestic context takes on a broader meaning than in everyday usage. Acts become domestic violence when their repeated use is likely to lead to one spouse’s control over the other.
         1. Light force is viewed in the context of its scope
   4. Lewis v. U.S.
      1. Cannot collaterally attack the validity of a prior conviction because it is viewed as final