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Sharply divided D.C. Circuit applies strict liability for carrying an automatic weapon during a crime of violence

Aug 06, 2012 Sharply divided D.C. Circuit applies strict liability for carrying an automatic weapon during a crime of violence

Last Friday, a deeply divided D.C. Circuit ruled 5-3 that a person carrying an automatic weapon/machine gun during a crime of violence must receive a thirty-year mandatory minimum prison sentence for that weapon — versus a ten-year mandatory minimum sentence for a semi-automatic weapon — even if the defendant did not know that the weapon could fire automatically. U.S. v. Burwell, ___ F.3d __ (D.C. Cir., Aug. 3, 2012).

Burwell brought two concurring and two dissenting opinions, for a total of over one hundred pages, likely geared in part to persuade the Supreme Court should certiorari be granted.  

Particularly when dealing with mandatory sentencing schemes as the one detailed above, it is critical to require actual knowledge by the defendant (here, actual knowledge that the weapon is automatic rather than semi-automatic) rather than to apply strict liability. Mere possession of an automatic weapon does not mean that the weapon’s possessor knows it is automatic, including in Burwell, where no markings on the weapon showed it was automatic. Had Burwell fired the weapon in automatic mode, he would have known it was automatic, but the evidence against him did not show he had such knowledge.

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