U. S. Supreme Court Happenings, Favorable Federal Circuit Opinions and More District Court Judges Holding 18 U.S.C. §922(g)(1) Charges Barring Felons from Possessing Firearms Is Unconstitutional – for the Week of November 13-17, 2023 --

Supreme Court Happenings for the Week ending November 17, 2023 –

The Justices met for their November 17, 2023 conference today. We expect orders on Monday, November 20, 2023.
At oral argument on Tuesday for Rahimi, a majority of the Court seemed ready to uphold a federal law that bars anyone subject to a domestic-violence restraining order from possessing a gun. The government urged the justices to strike down a lower court ruling which found the law a violation of the Second Amendment under last year’s ruling in Bruen. The Rahimi issue is whether people subject to domestic protection orders are dangerous. But if Supteme Court focuses on “dangerousness,” that suggests that maybe people disqualified from owning firearms because of prior convictions – like Bryan Range in the 3rd Circuit case now awaiting a decision on certiorari – convicted of nonviolent crimes may still benefit from Bruen.
This week’s new Supreme Court order list included a cert grant in a federal drug case and a lengthy dissent from the denial of cert in a state prison conditions case. The cert grant in Diaz v. United States could touch on a variety of interesting issues that might provide to divided the Justices in ways other than the now "usual" 6-3 divide.

Diaz v. United States, (No. 23-14) (S. Ct. 2023)–I ssue: Whether in a prosecution for drug trafficking — where an element of the offense is that the defendant knew she was carrying illegal drugs — Federal Rule of Evidence 704(b) permits a governmental expert witness to testify that most couriers know they are carrying drugs and that drug-trafficking organizations do not entrust large quantities of drugs to unknowing transporters.

Favorable Federal Circuit Opinions for the Week of November 13-17, 2023 –

7th Circuit

United States v. Miles, (No. 22-2805)(7th Cir. November 13, 2023)– Miles was sentenced to 240 months’ imprisonment for four drug and firearm offenses. Miles challenged his felon-in-possession convictions. He argued that the convictions are multiplicitous. The Court agreed and vacated the district court’s judgment with respect to Miles’s multiplicitous firearm convictions and remanded for the limited purpose of vacating one of his firearm sentences and merging his two firearm convictions.

OTHER NEWS

More District Court Judges Holding 18 U.S.C. §922(g)(1) Charges Barring Felons from Possessing Firearms Is Unconstitutional –
Williams v. Garland, (No. 17-cv-2641)(EDPA, November 14, 2023)-- Prohibiting Williams’ possession of a firearm due to his DUI conviction is a violation of his Second Amendment rights as it is inconsistent with the United States’ tradition of firearms regulation. The Constitution “presumptively protects” individual conduct plainly covered by the text of the Second Amendment, which includes an individual’s right to keep and bear arms for self-defense. Bruen, 142 S. Ct. at 2126. Protected individuals presumptively include all Americans. Although this Court remains quite concerned about the prospect of granting access to firearms to persons who have demonstrably abused alcohol, it is not convinced that the general dangerousness of drunk driving and of combining firearm use and alcohol consumption establishes that DUIs must therefore be considered sufficiently analogous to historical examples of ‘dangerous’ conduct that have previously served as grounds for disarmament. That legislatures have historically labeled certain groups and conduct dangerous for the purposes of disarmament does not, in of itself, create a historical analogue to the present-day prohibition on firearm possession by those convicted of DUIs. The Third Circuit in Range v. Attorney General, 69 F.4th. 103 (3rd Cir. 2023)(en banc) determined that Bryan Range, who had a qualifying conviction under Section 922(g)(1) for making a false statement to obtain food stamps and who wished to possess firearms to hunt and to defend himself, could not be denied his Second Amendment right to possess a firearm due to that conviction. The Range Court had rejected the argument that status based restrictions on ‘dangerous’ groups identified as such by the legislature would constitute an appropriate analogy to Section 922(g)(1) today. See Range, 69 F.4th at 104-05.
Accordingly, the application of Section 922(g)(1) to Williams, therefore, constitutes a violation of his Second Amendment rights, and the Court found that he was entitled to the requested relief and granted Williams’ motion for summary judgment.

United States v. Prince, (No. 22 CR 240)(NDIL Nov. 2, 2023)– Prince was charged in a Superseding Indictment with one count of being a prohibited person in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). Prior to trial, Prince filed a motion to dismiss the Indictment due to an alleged violation of his rights under the Second Amendment of the United States Constitution and based on the Supreme Court’s ruling in New York Rifle & Pistol Assn. v. Bruen, 142 S. Ct. 2111 (2022) (“Bruen”), and the Seventh Circuit’s ruling in Atkinson v. Garland, 70 F.4th 1018 (7th Cir. 2023) (“Atkinson”). He argued that § 922(g)(1) is unconstitutional on its face and as applied under the Second Amendment pursuant to the Bruen standard. Thus, this Court began by evaluating whether Prince’s alleged conduct was protected by the plain text of the Second Amendment. The inquiry required by Bruen, however, is not merely whether a dispossession statute’s burden is “comparably justified,” but also whether the statute imposes a “comparable burden” on the right itself. Bruen, 142 S. Ct. at 2133. Thus, this court concludes that § 922(g)(1) imposes a far greater burden on the right to keep and bear arms than the historical categorical exclusions from the people’s Second Amendment right. Consequently, this court concludes that the government has not met its burden under Bruen to prove this nation’s history and tradition of firearm regulation with historical evidence of laws that authorized capital punishment and estate forfeiture for felonies. Because this court determined that Prince is a member of “the people” protected by the Second Amendment, and because neither type of historical regulation offered by the government satisfied its burden to show a history and tradition of “relevantly similar” analogues to § 922(g)(1)’s permanent, categorical firearm dispossession of all felons, the court is forced to grant Prince’s motion to dismiss the indictment against him under Bruen, regardless of whether he is challenging the statute as applied or on its face.

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

Fair Sentencing/Retroactive Sentence Reductions 3,979 Orders Granted to date.
Elderly Offender Home Confinement 1,247. Approved to date.
First Step Act Releases 25,506 granted to date.
Compassionate Releases/Reduction in Sentences 4,634 granted to date.
Population in RRC’s 8,048.
Population in Home Confinement 5,656.

COMMENT:

The Prince opinion above is a 22 page opinion by the Honorable Robert W. Gettleman. We have only summarized it here. However, it is well reasoned and thought out and brilliantly written opinion.. Further, as expected, the government is appealing it to the Seventh Circuit. However, much of the opinion relies on Atkinson, which was published earlier this year in the Seventh Circuit and is precedent. Between this case and Range, it appears that eventually they will end up in front of the Supreme Court. Anyone that believes they may have a Prince/Range/Bruen claim should opt for a Written Case Evaluation (“WCE”)details below.

With regard to the USSG Guideline Amendments, we are receiving a great amount of people wanting to find out if they qualify for any of the new USSG Amendments. If you want to know whether you qualify under Prince/Range/Bruen or any of the new USSG Amendments, we suggest that you opt for a WCE ASAP to make that determination. The sooner your motion goes into Court, the sooner you could gain relief. Amendment 814 is now effective. A WCE will also tell you if you have any other relief available. We can help you file Amendment motions correctly also. In addition, if you believe you have a Prince/Range/Bruen, Rehaif, Dubin, Taylor, Concepcion, Ruan, Davis, Earned Time Credit or any other claim and want to see if you may have relief coming, you should opt for a WCE (WE NO LONGER OFFER FREE LOOKUPS).

For the last 29 years, we have been very successful on direct appeals, 2255 motions, 2241 Petitions, First Step Act and Compassionate Release Motions, DC Superior Court Petitions, State Post Conviction, Clemencies and Pardons to mention a few avenues for relief we cover. We also can help you with Earned Time Credits and other specialized motions. The WCE is an excellent tool to see what can be done for you at any stage of the proceedings. It is thorough and detailed from day one of your case with our recommendations of any remedies available to gain relief.

If you are serious about fighting your case and want us to evaluate your case to see if you may have relief coming, request a Written Case Evaluation.