Federal Crimes Outline - Professor Bolitho - Campbell Law - Part 5

h. Use or Carry of a Firearm

1. Watson v. U.S. (Souter) (2007)
   1. If the D has a gun and trades it for drugs, then he DID use a gun—Smith
   2. If the D has drugs and trades it for a gun, he did NOT use a gun because the crime was complete
   3. Bailey—Mere possession does not amount to “use,” there must be active employment.
   4. Ginsburg— “use” should be confined to use as a weapon

i. Factors Enhancing Penalties/Sentencing (Brandish, Discharge, Machinegun)

1. ****** “element” in this context refers to a material fact of the case that affects the minimums and maximums of sentencing ranges******* Apprendi
2. Burdens of Proof
   1. Elements = BRD
   2. Enhancements = preponderance
3. Cases On the Issue
   1. Alleyene v. U.S. (Thomas) (2013)
      1. Reversed Harris v. U.S.—Which had held that a fact raising the minimum could be found by the judge by a preponderance of evidence.
      2. Holding—Any fact that, by law, increases the punishment for a crime must be proven to the jury BRD. Any fact increasing the mandatory minimum MUST be submitted to the jury.
         1. Must now plead and prove drug quantities to the jury.
         2. Simply put, all aggravating sentencing factors must be found by the jury.
         3. The legislature CANNOT distinguish between facts of the crime and sentencing factors.
   2. Rehaif v. United States (2019) (Breyer)
      1. Holding—In relation to § 922(g) prohibited persons, there are two mens rea requirements. (1) D must have knowingly possessed the gun AND (2) known of his prohibited status.
         1. This does not run afoul of the disavowal of the mistake of law defense because it is a mistake concerning one’s legal status, knowledge of which is required in order to be of a sufficiently culpable mind. Further, it does not require knowledge of the law, just the status.
      2. There is a presumption in favor of applying the scienter requirement.
   3. United States v. Davis (Gorsuch) (2019)
      1. § 924(c)(3)(B) is unconstitutionally vague.
         1. § 924(c)(3)(B) criminalizes the use of a gun in crimes of a violent nature.
      2. Reasoning—Under the principles of due process and separation of power, the imposition of criminal punishment cannot depend on a judge’s estimation of the degree of risk posed by a crime’s “imagined ordinary use.
      3. Holding—When determining whether it is a crime of violence, the analysis must be case-specific. You cannot apply the general characteristics and assume they are shared. i.e., You cannot generally state, “robberies are usually dangerous, so this one must have been as well.
      4. Rule of Lenity—A cannon of construction that should be applied to resolve ambiguities in D’s favor.
         1. Punishment is a legislative prerogative, not judicial
      5. Constitutional Avoidance—A cannon of construction that, when applied, states that the court should try to err on the side of constitutionality when a statute can be read in one way that is constitutional and another that makes it unconstitutional. HOWEVER, this can ONLY be used to narrow the scope of a criminal statute.

a. Comprehensive Drug Abuse Prevention and Control Act of 1970

1. First attempt by the Feds to regulate drugs using the commerce power
2. Class of Activities Approach
   1. NO jurisdictional element due to these Congressional findings
      1. Most drug traffic passes interstate
      2. Intrastate acts still affect the broad scheme of the law
      3. Local use increases interstate traffic
      4. No ability to differentiate between intra and interstate drugs
      5. Federal involvement is essential to effective control
3. Relevant Statutes
   1. 21 U.S.C. § 856 Crack House Statute
      1. Cannot run a building for the purpose of the manufacture, distribution, or use of a controlled substance
   2. 21 U.S.C. § 841 Distribution Mandatory Minimums
      1. 280 grams of crack or 5 kilos of coke
         1. 1st offense = 10 years min.
         2. 2nd offense = 15 years min.
         3. If death occurs, min 20 years
      2. 500 grams of coke or 28 grams of crack
         1. 1st offense = 5 years min
         2. 2nd offense = 10 years min
         3. If death occurs, 20 year min
      3. § 841(b) Sentencing Enhancements for causing Overdose Deaths
         1. Imposed the 20 year min for overdose deaths resulting from the substance in question.
         2. “Resulting From”—where the drug distributed by D was not an independently sufficient cause of death, the government must prove it was the but for cause of death—Burrage
   3. 21 U.S.C. § 846 Specialized Conspiracy Statute
      1. Same penalty as the underlying crime. No overt act requirement.
   4. 21 U.S.C. § 848 Continued Criminal Enterprise
   5. 21 U.S.C. § 862 Ineligibility for Federal Benefits After Conviction
4. Scheduling—determined by the AG after receiving recommendations from the Sec. of Health, Education, and Welfare