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PDs taking sentencing case all the way up

Barbara L. Jones//September 19, 2014

PDs taking sentencing case all the way up

Barbara L. Jones//September 19, 2014

Bonnie and Clyde used sawed-off shotguns. The assassin who was supposed to kill Bugs Moran in the St. Valentine’s Day massacre had a sawed-off shotgun, although he killed the wrong guy. More recently, when police busted the Murda Moore Gangstas in the Bronx in April, they found sawed off shotguns.

There’s such a lore about sawed-off shotguns that in some states, including Minnesota, it is illegal just to own one.  And under the Armed Career Criminal Act, owning one is a predicate that will get your sentence increased to a 15-year minimum. You don’t even have to own it — being in a car with a sawed -off shotgun in a paper bag also works.

That’s what happened to Samuel Johnson. His 2007 conviction for possession of a sawed-off shotgun was considered a predicate under the ACCA, and it was the third strike. In June 2012 he pleaded guilty to being a felon in possession of a firearm but reserved the right to appeal his designation as a career criminal under the ACCA. Judge Richard Kyle sentenced Johnson to 180 months, but said on the record that the sentence was too harsh. A sentence of half or two-thirds that length would suffice, he said. Consistent with its precedent, the 8th Circuit affirmed.

This case is taking Minnesota federal public defenders Kate Menendez and Doug Olson to the U.S. Supreme Court, where they will ask the court to reverse the 8th Circuit, resolve a split in the circuits and hold that mere possession of a sawed-off shotgun gun is not a violent act under ACCA.  It’s only the second time in 20 years the office has been before the court.

‘It’s the best job’

Olson grew up in Rochester and got his J.D. from the University of Minnesota Law School in 1985. Although his father was a judge in Rochester, Olson never thought about being a lawyer, but then the ’70s brought out the activist in him. After law school he practiced with Bill Mauzy and Bruce Hanley, who passed away in 2005. He is now full-time at the federal defender’s office.

“My second year of law school I stumbled into the criminal defense clinic and then that’s all I wanted to do. This is the job I’ve always wanted.”

Menendez got her J.D. from New York University School of Law.  She clerked for a year in the 4th Circuit and then came to the federal defender’s office in 1997 where she has remained because “it’s the best job.” Initially she was funded by a Soros Justice Fellowship and therefore focused on defense at the Red Lake Indian Reservation for two years. (The Tribal Law and Order Act of 2010 extended federal authority over Indian Country and allows some criminal cases to be handled in federal court, she explained. Prior to that, the Major Crimes Act established federal jurisdiction over certain crimes.)

“I always wanted to do public interest/poverty law. I think public defense is the ultimate poverty law, poor people are in the greatest peril,” Menendez said.

Olson agreed that federal defense is the best job. “It’s the greatest job for a criminal defense lawyer because of the cases and the colleagues in this office. There are nine full-time lawyers and we all practice well and get along.  I like the clients and the diversity of the cases,” he said.

Significant enhancement

Neither of the attorneys likes the Armed Career Criminal Act and they are not alone. The law, in different iterations, dates back to 1984. In its present form it says that if a defendant has three or more predicates that are “violent crimes” then the mandatory minimum sentence is 15 years. It also has a residual clause that covers “conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. 924 (e) (1) (ii)

In recent case law, the court has said that drunken driving is not a predicate (Begay v. United States, 2008), fourth-degree battery isn’t (Johnson v. United States (2010), and failure to report to prison isn’t (State v. Chambers, 2009), but fleeing police is (Sykes v. United States, 2011). Begay set forth a two-part test: Does the crime involve conduct that presents a serious risk of physical injury to another, and is the crime roughly similar, in kind as well as degree of risk post, to the statute’s enumerated examples.

“This is an often prosecuted crime,” said Menendez. “It’s really onerous. If you have the prior offenses the sentence goes from zero to 10 to 15 to life which makes it a very significant enhancement.”

Johnson had three prior potential predicates. Two of them were robberies, and the law is pretty clear that those are violent crimes, Olson said.

The focus of the case is whether the mere possession of a short-barreled shotgun is a violent felony. “We do not call it sawed off,” Menendez said. The 8th Circuit has already said it is, but Olson and Menendez will argue that the 8th Circuit cases are incorrect and contrary to three U.S. Supreme Court decisions—Sykes, Johnson, and Begay.  The 10th and 11th Circuits have held that possession of a short barreled shotgun is not a crime of violence. A District Court in Wisconsin, the 7th Circuit, has also ruled that it is not a violent felony.

The law is simply unfair, Mendenez said. “It’s poorly written. Justice Scalia says it’s unconstitutionally vague. He has been saying for a decade that we should blow up the statute.”

In Sykes, the court’s most recent case, Scalia’s dissent pointed out, “We try to include an ACCA residual-clause case in about every second or third volume of the United States Reports.” He called the opinion “tutti-frutti,” and said that the court will keep defendants and judges guessing for some time to come. The court should admit the law is a drafting failure and declare it void for vagueness.

The brief points out that possession is not similar in kind or degree of risk to any enumerated offense, that possession is not violent, and that owning a short-barreled shotgun is widely legal.

Mendez said that the Supreme Court has increasingly relied on statistics to inform its position, but there are not a lot of statistics about just possessing a short-barreled shotgun. “That’s the dominant emphasis in our brief. If you have one of these you are committing a crime. … Mere possession shouldn’t be a violent crime.”

Minn Stat 609.67 subd. 2  .Acts prohibited.

Except as otherwise provided herein, whoever owns, possesses, or operates a machine gun, any trigger activator or machine gun conversion kit, or a short-barreled shotgun may be sentenced to imprisonment for not more than five years or to payment of a fine of not more than $10,000, or both.

Armed Career Criminal Act, 924 (e) (2) (B):  the term “violent felony” means any crime … [that ] involves conduct that presents a serious potential risk of physical injury to another

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