U. S. Supreme Court Happenings, Favorable Federal Circuit Opinions and Other News for the Week of August 26-30, 2024--

U. S. Supreme Court Happenings– Week ending August 30, 2024 –

The Court is currently in summer recess. Summer order lists are scheduled to be issued on Friday, September 6, 2024. Summer order lists usually consist of actions taken by the Court on motions in pending cases, petitions for rehearing, and other miscellaneous matters. Emergency orders, such as in applications for stays, will continue to be released as required. The Term of the Court begins, by law, on the first Monday in October and lasts until the first Monday in October of the next year. Each Term, approximately 5,000-7,000 new cases are filed in the Supreme Court. The Court typically disposes of about 100 or more cases without plenary review. The publication of each Term’s written opinions, including concurring opinions, dissenting opinions, and orders, can take up thousands of pages. During the drafting process, some opinions may be revised a dozen or more times before they are announced.

Favorable Federal Circuit Opinions for the Week of August 26-30, 2024 –

3rd Circuit

United States v. Green, (No. 23-2476)(3rd Cir. August 27, 2024)– Few guarantees are more central to our judicial system than that of a fair trial by jury. It is “the most fundamental of all freedoms”—“the great bulwark of [our] civil and political liberties.” Estes v. Texas, 381 U.S. 532, 540 (1965); 2 J. Story, Commentaries on the Constitution of the United States 541 (4th ed. 1873). To that end, Rule 14 of the Federal Rules of Criminal Procedure aims “to promote economy and efficiency and to avoid a multiplicity of trials” only so long as “these objectives can be achieved without substantial prejudice to the right of the defendants to a fair trial.” Bruton v. United States, 391 U.S. 123, 131 n.6 (1968) So, when competing narratives call for a jury to convict one defendant in order to acquit another, the Court required separate juries to avoid substantial prejudice to any single defendant. Cornelius Green was not afforded such a trial. The Court therefore reversed the denial of his motion to sever, vacated his conviction and sentence, and remanded.

5th Circuit

United States v. Connelly, (No. 23-50312)(5th Cir. August 28, 2024)– Paola Connelly is a non-violent, marijuana smoking gunowner. El Paso police came to her house in response to a “shots fired” call. When they arrived, they saw John, Paola’s husband, standing at their neighbor’s door firing a shotgun. After arresting him, they spoke with Paola, who indicated that she would at times smoke marijuana as a sleep aid and for anxiety. A sweep revealed that the Connellys’ home contained drug paraphernalia and several firearms, including firearms owned by Paola. There was no indication that Paola was intoxicated at the time. Paola was charged with violating: (1) 18 U.S.C. § 922(g)(3) by possessing firearms and ammunition as an unlawful user of a controlled substance, and (2) 18 U.S.C. § 922(d)(3) by providing firearms and ammunition to an unlawful user of a controlled substance. Paola argued in a motion to dismiss, and the District Court ultimately agreed, that §§ 922(g)(3) and 922(d)(3) were facially unconstitutional and that § 922(g)(3) was unconstitutional as applied to her under the Second Amendment. This appeal asked the Court to consider whether Paola’s Second Amendment rights were infringed, and the answer depends on whether § 922(g)(3) is consistent with our history and tradition of firearms regulation. The short of it is that our history and tradition may support some limits on a presently intoxicated person’s right to carry a weapon (and for that reason Paola’s facial challenges to §§ 922(g)(3) and 922(d)(3) fail), but they do not support disarming a sober person based solely on past substance usage. Nor, contrary to what the government contends, do restrictions on the mentally ill or more generalized traditions of disarming “dangerous” persons apply to nonviolent, occasional drug users when of sound mind. Paola’s § 922(g)(3) charge was inconsistent with our history and tradition of firearms regulations for the reasons discussed above, so the Court affirmed the judgment of dismissal as to her as-applied challenge. But that holding was narrow. There undoubtedly exist circumstances where § 922(g)(3) may apply constitutionally, such as when it bans a presently intoxicated person from carrying firearms, so the Court reversed as to Paola’s facial challenge and reversed as to Paola’s facial challenge to § 922(d)(3).

7th Circuit

United States v. Monterey, (No. 23-1976)(7th Cir. August 29, 2024)– Travis Montgomery pleaded guilty to distributing methamphetamine. At his sentencing hearing, the government proved that Montgomery had stowed the methamphetamine (as well as other drugs), cash, and drug trafficking paraphernalia in an off-site storage unit leased by his sister. Finding that Montgomery had used the storage unit primarily to facilitate his drug operation, the district court added a two-level enhancement pursuant to § 2D1.1(b)(12) of the United States Sentencing Guidelines. See U.S.S.G. § 2D1.1(b)(12) (requiring two-level increase where a defendant “maintained a premises for the purpose of … distributing a controlled substance”). But because the present record falls short of establishing that a primary use of the storage unit was drug distribution, the Court vacated and remanded to the district court for resentencing without regard to § 2D1.1(b)(12)’s enhancement.

OTHER NEWS

Last week, the Sixth Circuit handed down United States v. Williams, (No. 23-6115) (6th Cir. Aug. 23, 2024). In Williams, the Court held that 18 USC § 922(g)(1) – the statute that prohibits people convicted of a felony from possessing guns or ammo – was consistent with the 2nd Amendment as applied to Erick Williams, who had previously been convicted of armed robbery and other offenses, but who had served his time, was caught in a traffic stop with a handgun. Convicted of being a felon in possession, he appealed on the ground that § 922(g)(1) was facially unconstitutional in the wake of NY State Rifle & Pistol Association v. Bruen. We did not report Williams last week because it was not a positive case in our view. However, after careful consideration, we have decided that it is consequential and instructive because the panel applied last June’s United States v. Rahimi decision (in which the Supreme Court ruled that § 922(g)(8), which denied guns to people subject to domestic protection orders), the Circuit ruled that § 922(g)(1) was not unconstitutional as applied to a guy whose “criminal record shows that he’s dangerous.” As such, the Sixth Circuit had “little trouble concluding that Williams [was] a dangerous felon” and thus, that “the government may, consistent with the 2nd Amendment, punish him for possessing a firearm. And the government may enact this prohibition through a broad, class-wide ban like § 922(g)(1). His as-applied challenge therefore fails.” Thus, in our view, this opinion means that any and every person within the Sixth Circuit criminal charged with illegal firearm possession under 922(g)(1) — and perhaps other federal and state gun control provisions? — can now seek dismissal of that charge by making ‘an individualized showing that he himself is not actually dangerous.’ In addition, we wonder if the Williams opinion might now provide a means for the millions of persons with non-violent felony convictions at least in the Sixth Circuit to seek a declaratory judgment that they are ‘not actually dangerous’ and thus have a Second Amendment right to possess (and purchase) firearms. Stay tuned.

Latest Bureau of Prison’s Statistics (From BOP Website):

Fair Sentencing/Retroactive Sentence Reductions 4,146 Orders Granted to date.
Elderly Offender Home Confinement 1,246. Approved to date.
First Step Act Releases 37,083 granted to date.
Compassionate Releases/Reduction in Sentences 4,750 granted to date.
Population in RRC’s 8,485.
Population in Home Confinement 4,947.

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