Feb 03, 2017 Firearms & Handgun Defense – Beware state and federal court mandatory minimum sentencing
The National Rifle Association may have its allies among lawmakers and Republican presidents and governors, but that does not diminish the harsh mandatory minimum prison sentences risked by those convicted for committing certain crimes in conjunction with possessing firearms, and those convicted of possessing firearms after having been previously convicted for certain violent felonies.
FEDERAL MANDATORY MINIMUM SENTENCING FOR USING A HANDGUN DURING A CRIME OF VIOLENCE
Yesterday, the Fourth Circuit reminded us of that harsh reality in affirming Jamaal Eugene Evans’s. Evans was convicted of carjacking his “friend”, resulting in serious bodily injury (shooting the car owner in each leg), and discharging a firearm in the commission of that crime. U.S. v. Evans, ___ F.3d ____ (4th Cir., Feb. 2, 2017).
Evans’s overkill of resorting to shooting his “friend” — who, as Evan’s “friend” easily identified Evans to the police as the carjacking perpetrator — to rob his car, clearly was not going to endear the guilty-pleading Evans to his sentencing judge, who sentenced Evans to 216 months of imprisonment, which consisted of 96 months for robbery and carjacking and 120 months mandatory minimum consecutive thereto for discharging a firearm in the commission of the carjacking crime.
On appeal, Evans challenged whether carjacking constitutes a “crime of violence” that triggers such a handgun conviction and sentence. The Fourth Circuit answered that question in the affirmative,
Evans’s convicted handgun discharge count dictated Evans’s ten year consecutive sentence for discharging a firearm “during and in relation to any crime of violence.” 18 U.S.C. § 924(c)(1)(A)(iii). The essence of Evans’s upholding the ten-year sentence for discharging a firearm follows:
“Because the force clause of Section 924(c)(3) encompasses only crimes that have ‘as an element the use, attempted use, or threatened use of physical force,’ 18 U.S.C. § 924(c)(3)(A) (emphasis added), we apply the elements-based categorical approach articulated by the Supreme Court to decide whether the carjacking statute satisfies this stautory definition… [The prosecution/government] argues that the term ‘intimidation,’ as used in the [carjacking definitional] statutory phrase ‘by force and violence or by intimidation,’ denotes a threat to use violent force. Therefore, in the government’s view, the employment of intimidation to commit the federal crime of carjacking is encompassed within the ‘use, attempted use, or threatened use of physical force’ required under Section 924(c)(3)(A) for commission of a crime of violence. We agree with the government’s interpretation of the statute.”
OTHER FEDERAL AND STATE STATUTES PRESCRIBING HARSH SENTENCING FOR FIREARMS
– In Virginia, using a firearm or displaying it in a threatening manner in the course of designated crimes of violence, brings a mandatory minimum consecutive three-year prison sentence. Va. Code § 18.2-53.1.
– Virginia law imposes a mandatory minimum five-year consecutive prison sentence for possessing a firearm while committing a crime of possession with intent to distribute/sell more than one pound of marijuana or a Schedule I or II drug/controlled substance. § 18.2-308.4(C).
– Virginia law imposes a mandatory minimum consecutive two-year consecutive prison sentence for simultaneously possessing a firearm on one’s person and unlawfully possessing a Schedule I or II drug/controlled substance. § 18.2-308.4(B). That is a harsh penalty, which even brings within its net a person possessing but one Adderall pill for attention deficit disorder, and an otherwise lawfully possessed handgun with a concealed carry permit, or rifle to return to the defendant’s relative after repair at the gun shop.
– Although not a mandatory minimum sentencing scheme, federal law provides for imprisonment for up to ten years for being a convicted felon in possession of a firearm. 18 U.S.C. §§ 922(g)(1), 924(a)(2).
A deputy sheriff recently reminded me never to bring a machete to a gunfight. However, with the risk that even an innocent person will be caught and convicted for illegal drugs actually possessed by a fellow car passenger or other nearby person, the possession of a firearm can risk compounding one’s risks in interacting with police.