I shot the sheriff...Am I still eligible for the Safety Valve?

At Kohlmetz, Steen & Hanrahan, P.C.​ we are almost daily asked to render advice on firearms issues in federal court. The possession of a firearm can have varied and dramatic effects in a federal criminal case. In this Four part blog entry I will briefly survey the law as it stands in the 9th Circuit related to the four most common firearms provisions we confront.

First, in certain cases involving crimes of violence or drug trafficking crimes, 18 USC § 924(c) makes it a separately punishable offense to "possess a firearm in furtherance of any such crime," or to uses or carry a firearm "during or in relation" to the commission of another crime. Punishment for violation of this statute carries mandatory minimum prison sentences that range from five to thirty years. Second, in drug cases, the possession of a firearm can be used to elevate the underlying federal Sentencing Guidelines offense level by two points. Under USSG 2.D1.1(b)(1) a two level offense enhancement applied for possession of a firearm unless the defendant can show it was clearly improbable that the firearm was connected with the offense. Third, and also in drug cases, under USSG 5C1.2 an otherwise eligible defendant will not be eligible for relief from a mandatory minimum prison sentence if they "possessed a firearm in connection with the offense." Finally, certain firearms offenses receive a four level offense enhancement under USSG 2K2.1(b)(6) if the defendant used or possessed any firearm in connection with another felony offense.

Problems often arise in case analyses involving the possession of firearms because the standards involving the application of these various firearms provisions differ greatly from each other.

1) The criminal offense under 18 USC 924(c), and "possession" generally.

As a separate criminal offense rather than a sentencing matter, every element of this offense must be proven by the government beyond a reasonable doubt before a conviction can result. As an initial matter, no evidentiary presumption works against the defendant, who is presumed innocent of the offense. There are two ways the government can seek to prove the offense; First, by proof that the defendant carried or used the firearm during or in relation to the offense; Second, by proof, the defendant possessed the firearm in furtherance of the offense. United States v. Arreola, 467 F.3d 1153, 1159 (9th Cir. 2006).

Under the possession prong of this offense, the government must show both possession, and that such possession was in furtherance of the offense. Simply possessing a firearm contemporaneously with another qualifying offense is insufficient. The government must produce some "specific evidence that the defendant's possession furthers the underlying offense". United States v. Thongsy, 577. F.3d 1036, 1040 (9th Cir. 2009). See also United States v. Monzon, 429 F.3d 1268 (9th Cir. 2006). The government must also prove specific characteristics of the firearm(s) if those characteristics trigger an increased statutory minimum (i.e. a fully automatic weapon). United States v. O'Brien, 560 U.S. ___, 130 S.Ct. 2169 (2010).

In the 9th Circuit, "Possession" can be either "actual" or "constructive." United States v. Krouse, 370 F.3d 965, 966 n. 3 (9th Cir. 2004). "Actual possession" of a firearm requires the defendant both know of its presence and either have control over it or power and intention to control it. United States v. Cain, 130 F. 3d 381 (9th Cir. 1997). "Constructive possession" of a firearm requires the defendant to knowingly hold "ownership, dominion or control" over the firearm and the location or premises where it is found. United States v. Lott, 310 F.3d 1231, 1247 (9th Cir. 2002). Normal criminal evidentiary rules apply and the government may prove the case by direct or circumstantial evidence.

Under either an actual or constructive theory of possession, the government must prove as an initial matter that the defendant had knowledge of the firearm. "Knowledge" of the weapon is a pre-requisite to "possession" of the weapon. United States v. Highsmith, 268 F.3d 1141 (9th Cir. 2001), United States v. Kelso, 942 F.2d 680 (9th Cir. 1991).

Tomorrow's installment will address the two level firearm enhancement under USSG § 2D1.1(b)(1).


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