Understanding Federal Guidelines on Felon-in-Possession Offenses
Explore the guidelines and implications surrounding felon-in-possession offenses in Kansas and Western Missouri through a comprehensive training seminar. Delve into base offense levels, specific offense characteristics, relevant conduct considerations, and the impact of Chapter Two offense guidelines. Gain insights on multiple counts scenarios and expanded relevant conduct under federal law.
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1 Relevant Conduct & Felon-in-Possession Districts of Kansas & Western Missouri Guideline Training Seminar Kansas City, MO Thursday, February 25, 2016 February 18, 2016
2 Presenters Melody Brannon Federal Public Defender District of Kansas Duston Slinkard Criminal Coordinator, Topeka U.S. Attorney s Office District of Kansas Rusty Burress Principal Training Advisor Office of Education & Sentencing Practice U.S. Sentencing Commission
3 2K2.1 Felon-in-Possession Unlawful Receipt, Possession, or Transportation of Firearms or Ammunition; or Prohibited Transactions Involving Firearms or Ammunition www.ussc.gov (202) 502-4545 @theusscgov pubaffairs@ussc.gov
4 2K2.1(a) Base Offense Levels (BOLs) Eight BOLs, from 6 to 26, determined by various factors and combinations, including: Status, including felon-in-possession & straw purchaser of a firearm or ammunition More serious types of firearms Prior convictions of crime of violence or controlled substance offense Requires use of the Categorical Approach
5 2K2.1(b) Specific Offense Characteristics (SOCs) and 2K2.1(c) Cross Reference 7 SOCs and 1 Cross Reference, including: Number of firearms Destructive device Firearm stolen or had altered serial number Firearm trafficking Use, possession, or transfer of firearm or ammunition in connection with another offense
6 Impact of a Chapter Two Offense Guideline Being on the Included List at 3D1.2(d)
7 Relevant Conduct & Multiple Counts 2K2.1 & 1B1.3(a)(2) & 3D1.2(d) Acts in the same course of conduct, common scheme or plan as the offense(s) of conviction will be included There will only be a single application of the multiple counts of 2K2.1, based on all relevant conduct
8 Expanded Relevant Conduct 1B1.3(a)(2): Course of Conduct, Common Scheme or Plan F-I-P Firearm 2 F-I-P Firearm 3 F-I-P Firearm 4 F-I-P Firearm 1 ( 2K2.1) ( 2K2.1) ( 2K2.1) ( 2K2.1) Offense of Conviction
9 Expanded Relevant Conduct (cont.) 1B1.3(a)(2): Course of Conduct, Common Scheme or Plan The guideline for the offense of conviction, 2K2.1, is on the included list at 3D1.2(d), so it uses expanded Relevant Conduct ( 1B1.3(a)(2)) If there were counts of conviction for the other offenses they would also use 2K2.1 So if the other offenses were in the same course of conduct or common scheme or plan as the offense of conviction, they will be relevant conduct
10 Grouping Under Rule (d) Straw 1 Straw 2 Straw 4 Straw 3 ( 2K2.1) ( 2K2.1) ( 2K2.1) ( 2K2.1) One application, with the offense level for the group based on an aggregate of the firearms and the offense conduct taken as a whole
11 Issue: 2K2.1(a) Base Offense Levels (BOLs) for More Serious Types of Firearms 2K2.1(a)(1), (a)(3), & (a)(4) Semiautomatic firearm capable of accepting a large capacity magazine Application Note 2 requires that a magazine that could accept more than 15 rounds was either: attached to the firearm, or in close proximity to the firearm
12 Selected Specific Offense Characteristics 2K2.1(b) www.ussc.gov (202) 502-4545 @theusscgov pubaffairs@ussc.gov
13 Number of Firearms SOC 2K2.1(b)(1), App. Note 5 Number of Firearms (A) 3-7 (B) 8-24 (C) 25-99 (D) 100-199 (E) 200 or more Increase in Level add 2 add 4 add 6 add 8 add 10
14 Stolen Gun/Obliterated Serial Number SOC 2K2.1(b)(4), App. Note 8 If any firearm Was stolen, increase by 2 levels OR (i.e., cannot give both; use the greater) Had an altered or obliterated serial number, increase by 4 levels Strict liability standard
15 Issue Regarding Stolen Firearm 2K2.1(b)(4) & App. Note 8 If the only offense is 922(i), (j), or (u), or 924(l) or (m) (offenses involving stolen firearms/ammunition) AND The BOL is determined under (a)(7) (BOL 12) Do not apply SOC (b)(4)(A) (+2) for stolen firearm, but the SOC for altered serial number (b)(4)(B) (+4) can apply
16 Issue Regarding Stolen Firearm (cont.) 2K2.1, App. Note 8 However, if the BOL is not determined under (a)(7), e.g., BOL (a)(6)(A) (BOL 14) for prohibited person : SOC (b)(4)(A) for stolen firearm (+2) will also apply, (unless SOC (b)(4)(B) for altered serial number (+4) also applies, as only the greater is used) Note: There is a similar application for a conviction for an altered serial number, BOL (a)(7), and SOC (b)(4)(B)
17 Trafficking SOC 2K2.1(b)(5) & App. Note 13 If the defendant engaged in the trafficking of firearms, increase by 4 levels Note the limitations of the definitions in Application Note 13(B)
18 Used or Possessed in Connection with Another Offense SOC & Cross Reference 2K2.1(b)(6)(B) & (c)(1) and App. Note 14
19 In Connection With 2K2.1(b)(6)(B) & (c)(1) and App. Note 14 In General: Apply if the firearm or ammunition facilitated, or had the potential of facilitating another (felony) offense Specific Guidance When a Burglary or Drug Trafficking: When a firearm is taken in the course of a burglary When a firearm is in close proximity to drugs, drug manufacturing materials, or drug paraphernalia
20 Used or Possessed SOC 2K2.1(b)(6)(B) and App. Note 14 If the defendant: Used or possessed any firearm or ammunition in connection with another felony offense OR Possessed or transferred any firearm or ammunition with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony offense Increase by 4 levels, with floor of 18
21 Used or Possessed Cross Reference 2K2.1(c)(1) and App. Note 14 If the defendant: Used or possessed any firearm or ammunition cited in the offense of conviction in connection with commission or attempted commission of another offense OR Possessed or transferred a firearm or ammunition cited in the offense of conviction with knowledge or intent that it would be used or possessed in connection with another felony offense Apply the cross reference, if greater than 2K2.1
22 Amendment #784, Effective 11/1/14 Clarified the operation of Relevant Conduct at 2K2.1 regarding a firearm or ammunition having been used or possessed in connection with another offense Addressed distinctions among 4th, 5th, 6th, 7th, & 11th Circuits Limits the cross reference at 2K2.1(c)(1) to the firearm(s) or ammunition cited in the offense of conviction Commission policy decision
23 Amendment #784, Effective 11/1/14 Clarification of the Operation of Relevant Conduct in 2K2.1(b)(6)(B) and (c)(1) 2K2.1, App. Note 14(E) has explanation and examples: The firearm or ammunition that is the basis for the SOC and cross reference is established by relevant conduct at 1B1.3(a)(1) or (a)(2) However, the SOC and cross reference themselves are relevant conduct under 1B1.3(a)(4)
24 Relevant Conduct 1B1.3(a) (a)(1) & (a)(2): Analysis to establish relevant acts (a)(3): Harms resulting from, or that were the object of the acts established in (a)(1) & (a)(2) -E.g., loss and injury are harms (a)(4): Information specified for application in a particular guideline
25 Distinctions Between 2K2.1(b)(6)(B) and (c)(1) SOC (b)(6)(B) applies to Firearm(s) and/or ammunition cited in the offense of conviction AND Firearm(s) and/or ammunition that are not cited in the offense of conviction but are in the same course of conduct/common scheme or plan as the offense of conviction
26 Distinctions Between 2K2.1(b)(6)(B) and (c)(1) (cont.) Cross reference (c)(1) applies only in cases in which the firearm(s) and/or ammunition cited in the count of conviction was used or possessed in connection with another offense
27 Pointers for 2K2.1(b)(6)(B) and (c)(1) 2K2.1, App. Note 14(C) & 1B1.5, App. Note 3 Can be based on any federal, state, or local offense (e.g., drug trafficking, robbery, assault, murder), except Not another firearms or explosive offense If the firearm or ammunition was involved in more than one offense, the cross reference is applied to the one resulting in the greatest offense level
28 Issue Regarding Relevant Conduct 2K2.1 & 1B1.3(a)(2) & 3D1.2(d) Defendant, a felon with a prior conviction for a crime of violence, was dealing drugs and using a firearm in relation to the offense, 924(c) A subsequent execution of a warrant and search found the defendant in possession of a different firearm
29 Issue Regarding Relevant Conduct (cont.) 2K2.1 & 1B1.3(a)(2) & 3D1.2(d) In the application of 2K2.1 for the conviction for felon- in-possession citing the firearm seized in the search, is the firearm in the 924(c) included in the relevant conduct? Will the firearm in the 924(c) be used in counting the number of firearms (SOC (b)(1))? If the 924(c) firearm was stolen, would that be a basis for applying the stolen firearm SOC ((b)(4)(A))?
30 Issue Regarding Relevant Conduct (cont.) 2K2.1 & 1B1.3(a)(2) & 3D1.2(d) Will the SOC for Used/Possessed in Connection with an Offense ((b)(6)(B)) apply? The cross reference ((c)(1))? If the drug trafficking, the 924(c), and the felon-in- possession are being sentenced at the same time, will the counts group?
31 Drug Trafficking, 924(c) & Felon-in-Possession Count 2: 2K2.4 924(c) 60 mos. consec. Count 1: 2D1.1 Drug Trafficking 26 + 2 = 26 Count 3: 2K2.1 Felon-in-Poss. 20 + 2 + 4 = 22 (Cross Ref = N/A) Offense Level = 26 924(c) count runs consecutively to all counts Group Counts 1 and 3 under 3D1.2(c)
32 Other Issues Regarding Used or Possessed 2K2.1(b)(6)(B) & (c)(1) and App. Note 14 The defendant, a felon, committed the state offenses of assault and use of a firearm in the assault A week after that offense occurred, the defendant was arrested with a different firearm The state prosecuted the assault and use of a firearm in the assault, and as a result, the defendant was sentenced to 5 years imprisonment; thus far he has served one year of that sentence
33 Other Issue Regarding Used or Possessed (cont.) 2K2.1(b)(6)(B) & (c)(1) and App. Note 14 The defendant was then prosecuted federally for the different firearm he had possessed, and is now convicted of felon-in-possession of that firearm Will the firearm in the state offense be relevant conduct to the firearm in the instant federal offense? Will the Used/Possessed SOC and/or cross reference apply based on the state assault?
34 Other Issue Regarding Used or Possessed (cont.) 2K2.1(b)(6)(B) & (c)(1) and App. Note 14 Will the 5-year state sentence be counted for criminal history points? Will 5G1.3(b) apply, which directs the court to adjust the instant federal sentence for the period of imprisonment already served on the undischarged term, and to impose the instant federal sentence to run concurrently with the undischarged term?
35 Note the Distinctions 2K2.1(b)(6)(B) & (c)(1) and App. Note 14(E) While the firearms considered in the determination of Used/Possessed are relevant conduct under 1B1.3(a)(1) or (a)(2), the Used/Possessed SOC & cross reference themselves are relevant conduct under 1B1.3(a)(4) A previous sentence is not counted for criminal history if it is relevant conduct under any of the provisions of 1B1.3(a)(1)-(4) (See 4A1.2(a)(1) & App. Note 1)
36 Note the Distinctions (cont.) 2K2.1(b)(6)(B) & (c)(1) and App. Note 14(E) 5G1.3(b), directing that the instant federal sentence be imposed to run concurrently with an undischarged term of imprisonment, and adjusted for imprisonment already served on the undischarged sentence, is not to be based on relevant conduct under 1B1.3(a)(4) (See 5G1.3(c) & App. Note 3)
37 Note the Distinctions (cont.) 2K2.1(b)(6)(B) & (c)(1) and App. Note 14(E) Note, however, that use of the 2K2.1(c)(1) cross reference will result in application using the relevant conduct applicable for the cross referenced offense (See 1B1.5)
38 END
