Eleventh Circuit Rules Felon’s Possession of Handgun Qualifies as Crime of Violence - U.S. v. Hall
I’ve written here several times before about appeals of criminal sentences that were enhanced by one or another “tough on crime” measure. Legislatures love to pass laws making already illegal acts punishable even more harshly, because it helps them demonstrate to voters that they oppose crime. Unfortunately, these laws are sometimes unclear about what conduct is required to enhance the sentence—and the resulting sentences are so inflated that the defendants have a strong incentive to pursue an appeal. In United States v. Hall, Derrick Hall received a sentence enhancement under the U.S. Sentencing Guidelines for having a prior “crime of violence,” which in his case was possession of an unregistered sawed-off shotgun. Hall’s appeal argued that this possession crime could not be a crime of violence. But the Eleventh U.S. Circuit Court of Appeals ultimately concluded that it was.
Hall’s instant crime was possession of a firearm by a felon. He pleaded guilty to that charge. However, the district court enhanced his sentence for a prior “crime of violence”—a 2006 felony conviction for possession of an unregistered sawed-off shotgun. The Sentencing Guidelines say a “crime of violence” is any state or federal offense punishable by more than one year in prison, that has as an element the use, attempted use or threatened use of force against someone else’s person, or otherwise involves conduct that presents a serious potential risk of physical injury to another. This gave Hall a base offense level of 20, which was then reduced by three levels for acceptance of responsibility. He ultimately ended up with a Guidelines range of 30 to 37 months in prison and was sentenced to 37 months.
The Eleventh Circuit started by noting that the commentary to this Guideline expressly notes that unlawfully possessing a sawed-off shotgun is a crime of violence. The Sentencing Commission amended the commentary in 2004 to reflect Congressional determination that possessing that weapon or others described by federal law is “inherently dangerous and when possessed unlawfully, serve only violent purposes.” In addition, the Eleventh noted, recent of its own cases have permitted it to rely on the Armed Career Criminal Act’s definition of “violent felony.” Hall argued that the sawed-off shotgun conviction is not “roughly similar in kind” to the other offenses listed in the Guideline, and that commentary to the Guidelines is not binding because of the Supreme Court’s determination that the Guidelines are advisory. The Eleventh disagreed, pointing to a 1993 Supreme Court decision saying the commentary is authoritative. Thus, it affirmed Hall’s sentence.
Interestingly, the case Hall relied on to argue that the commentary should be disregarded is from 2005, making it 12 years newer than the 1993 case the Eleventh Circuit relied on. For that reason, and because courts have rejected enhancements for firearm possession under the Armed Career Criminal Act, it wouldn’t surprise me to see a different federal appeals court come to a different conclusion. Possession of a firearm by a felon is prohibited for public safety reasons, but that public safety prohibition does not require us to conclude that mere possession is violent. It’s not clear how much extra time Hall will serve on his new firearms charge as a result, but it’s clear to me that when someone’s freedom is at stake, courts should be careful and precise about their language.
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