Posted by When is a gun not a gun? Never. Section 2M5.2 of the guidelines deals with the unlawful exporting of firearms (and rocket launchers, bombs, ICBMs, etc.) without a license. The guideline includes a carve-out, a lower base offense level when a person exports merely two or fewer non-fully automatic “small arms” (such as a pistol, rifle, shotgun). In US v. Stines, the defendant exported no actual guns, just several triggers, hammers, and other assorted parts (but, interestingly, no receivers). The district court refused to apply the carve-out here. The Eleventh Circuit panel agreed. Because the parts could be “mapped” into more than two weapons, the higher base offense level applied. So, darlings, if you’re going to export gun parts, follow Coco Chanel’s advice and before you leave home, take at least one thing off. (Or several, so that your accessories can’t be mapped to more than two guns).
At a federal sentencing hearing, it’s hard distance oneself from the combined conduct of a drug conspiracy. In US v. Rodriguez, the district court attributed 200 kilograms of methamphetamine to the conspiracy. Rodriguez argued that he quit working for the conspiracy before a search warrant was executed at the stash house. Withdrawal requires either (1) taking steps inconsistent with the conspiracy and communicating those acts in a manner reasonably calculated to reach the coconspirators or (2) disclosing the illegal activity to law enforcement authorities. On appeal, the Eleventh Circuit panel held that simply being absent from a job on the day the stash house was busted did not equal a withdrawal from the conspiracy. Rodriguez next argued that he was not liable for the conspiracy’s full drug quantity. The panel said he was. Although Rodriguez received a “minor role” adjustment, he participated in the conspiracy in many distinct ways: he transported methamphetamine from Texas to Florida, he distributed methamphetamine to customers, he chauffeured one of the conspiracy’s principals on drug runs, he wired funds to the cartel in Mexico, and recruited others to send similar wires. Finally, when agents busted the stash house, they found two pistols, but had no evidence connecting Rodriguez to either gun. But the panel held that the U.S.S.G. § 2D1.1(b)(1) enhancement for possession of a gun applied to Rodriguez anyway based upon his own allocution and admissions at the sentencing hearing. Beware the self-inflicted wound.
After Blaine Coglianese pled guilty to enticement of a minor and child-pornography offenses, the district court sentenced him to a prison term and supervised release. Coglianese contested conditions of supervised release that barred him from using or possessing computers, the internet, and “electronic data storage mediums,” such as flash drives and compact discs, because the conditions were unreasonable, overbroad, vague, and an unnecessary deprivation of liberty. The restrictions, he eloquently argued, were “tantamount to banishment from modern society.” In US v. Coglianese, an Eleventh Circuit panel affirmed the sentence, including these conditions. The panel explained that a condition is not invalid simply because it restricts a defendant’s ability to exercise constitutionally protected rights. Here, because the crimes involved the use of a computer and the internet, the restrictions were reasonable, and the language of the conditions provided adequate notice of prohibited conduct. Most significantly, the panel rationalized that these conditions were not absolute bans at all―the conditions expressly permitted a probation officer to grant Coglianese an exception if he can show a legitimate purpose. Cold comfort, indeed.
In Said v. U.S. Atty. General, an immigration case, the panel found that a Florida conviction for marijuana under Fla. Stat. § 893.13(6)(a) is not a categorical match to a controlled substance as defined in 21 U.S.C. § 802 because the Florida marijuana definition includes the mature stalks of the plant and fiber produced from such stalks, while the federal definition does not. The panel also offered an important, and helpful, riff on the categorical approach’s “realistic probability” test: “[W]hen the statutory language itself, rather than the application of legal imagination to that language, creates the realistic probability that a state would apply the statute to conduct beyond the generic definition . . . a litigant can use facially overbroad statutory text to meet the burden of showing the realistic probability that the state law covers more conduct than the federal.” This opinion will prove very useful in our arguments that Georgia marijuana convictions do not qualify as ACCA serious drug offenses or guideline controlled substance offenses. The Georgia marijuana statute also defines marijuana to include parts of the plant stalk that the federal definition does not.
The unfortunately named Romeo Valentin Sanchez was suspected of multiple sex crimes against two minors. Police obtained a warrant for Sanchez’s phone and showed up at the house to chat and serve the warrant. The chat took place in the garage. As Sanchez’s parents entered the garage, he told the officers he was “fine” with giving them his phone and that the phone was in his bedroom. An officer “suggested” to the mother that she retrieve the phone. The mother, trailed by an officer, walked to the bedroom, retrieved the phone, and handed it over. In US v. Sanchez, the panel held that this evidence proved consent. Like “yielding the right-of-way . . . [s]ilently accepting an officer’s expressed intent to enter the house solely for the purpose of retrieving a phone is also valid consent.”
Contributors: Nicole Kaplan, Kendal Silas, Melissa McGrane, Millie Dunn, and Natasha Silas.
The Blue Notes 