Davis and Rehaif; §924 and Unconstitutional Sentences

Two decisions from the Supreme Court this summer have deep and lasting implications on prisoners with convictions for gun crimes. Justice Alito predicted (in his dissent in in Rehaif) that there are tens of thousands of federal inmates who now can file §2255 motions to overturn their sentences based on the new rule set by that case.

However, the Davis case was first and is already causing sentences to be reconsidered and convictions to be scrutinized by these cases involving firearms convictions. So what do they say and what do they mean?

Here we’ll look at each one, starting with a summary of what those cases said, and then diving into the nuts-and-bolts of the decisions. In the case of Davis, it will also include a decision from an Appeals Court that already addressed the question of retroactivity and second-successive §2255 requests.

This will be a long post, so you can read the summaries and skip on if the discussion on procedure and application don’t mean much to you.

The Prequels

In 2015, the Supreme Court made a big decision in Johnson v. United States, 135 S.Ct. 2551 (2015). In this case, the definition of a “crime of violence” took center stage. It revolved around what Civil Law considered a “crime of violence” in a person’s criminal history.

The definition there (from §924(e) was struck down as being unconstitutional, and the Armed Career Criminal Act (ACCA) could no longer be implicated in cases where a sentence was enhanced using the residual definition of a crime of violence.These two cases formed the foundation for an even more important decision that would come a year later: United States v. Davis, 139 S.Ct. 2319 (2019).

Summary: This case makes the residual clause of the criminal definition of a crime of violence, in a current firearms case, unconstitutional for vagueness in a deep 5-4 split decision. Justice Kavanaugh penned the dissent for, among other things, keeping the status quo because it’s how we’ve always done things…

This case built off the Johnson and The 11th Circuit agreed that this is a new rule and allowed Hammoud to proceed with his §2255.

Rehaif v. United States 588 U.S. ____ (2019)

Summary: To be a felon in possession of a firearm, you must first be aware that you are a felon and are barred from having possession of that firearm. Jusice Alito complains that a lot of people might be in prison who shouldn’t be, and doesn’t want the Courts flooded with motions to overturn unconstitutional convictions.

This case is different from the rest of the cases discussed here, in that it deals with gun possession cases specifically, and not cases where guns were used or could have been used in a violent way.

The legal principal at work here is called “Mens Rea” which is Latin for “Criminal Mind”. In practical use, it means that a person must be aware that he or she is committing a crime in order to be guilty of that crime. There are some obvious exceptions to this rule, like negligent homicide, that don’t require an intent to commit a crime, but most criminal laws require that you are aware that what you’re doing is criminal in order to prosecute you for it.

The law in question here is 18 U.S.C. §922(g), which makes it a crime for any person “who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year…” to possess a firearm. There are also 8 other categories of people who are not legal to possess a gun, including being illegally in this country. This one is important here.

The one-year thing is a common way to differentiate a felony with a misdemeanor. Generally misdemeanors won’t carry sentences of more than one year, and some jurisdictions (especially those outside the United States) don’t have felony/misdemeanor definitions that come from Common Law.

In these cases, the government must show that the defendant, who was a felon, had possession of a firearm, and therefore broke the law.

In the case of defendant Rehaif, there was no felony, but one of the other 8 categories was triggered by his student visa. Rehaif was in the United States to study at college, and was booted from that college because he was a terrible student. Evan Lee, writing for ScotusBlog, sums it up this way:

In informing him about his dismissal, the university’s email notified him that his immigration status would be terminated if he did not transfer to another school or leave the United States, neither of which he did. Instead, he stayed in Florida. During that stay, he went to a firing range, purchased ammunition and fired [two] weapons. Hotel staff tipped off the FBI that Rehaif was engaging in suspicious behavior.

At the ensuing trial, the district court instructed the jury that it need not find that Rehaif knew he was out of immigration status, and the jury convicted. The U.S. Court of Appeals for the 11th Circuit affirmed, noting substantial agreement among its fellow circuits that the term “knowingly” in 18 U.S.C. § 924(a)(2) applies to possession of the weapon, but not to the status category of the possessor.

The question that made its way to the Supreme Court was whether or not the government had the burden to prove that a defendant had knowledge that they were not allowed to possess a firearm or ammunition because they were in a prohibited class.

Justice Breyer, writing for the 7-2 majority put it this way: “We granted certiorari to consider whether, in prosecutions under §922(g) and §924(a)(2), the government must prove that a defendant knows of his status as a person barred from possessing a firearm. We now reverse.”

Justices Alito and Thomas were both very angry at this decision. However, this dissent was not because they disagreed, but because a lot of people are probably in prison because the government didn’t have to prove that they knew they were in a prohibited category. Thus, the district courts would get a lot of petitions to release offenders who shouldn’t be in prison in the first place.

That is right. Justices Alito and Thomas argued about a mix of “They way we’ve always done things,” and “It will make the lower courts work really hard to let innocent people out of prisons.” These, of course, are paraphrased summaries of the arguments, so here is the text of how the dissent gets started for transparency:

The Court casually overturns the long-established interpretation of an important criminal statute, 18 U. S. C. §922(g), an interpretation that has been adopted by every single Court of Appeals to address the question. That interpretation has been used in thousands of cases for more than 30 years. According to the majority, every one of those cases was flawed. So today’s decision is no minor matter. And §922(g) is no minor provision. It probably does more to combat gun violence than any other federal law. It prohibits the possession of firearms by, among others, convicted felons, mentally ill persons found by a court to present a danger to the community, stalkers, harassers, perpetrators of domestic violence, and illegal aliens.

Today’s decision will make it significantly harder to convict persons falling into some of these categories, and the decision will create a mountain of problems with respect to the thousands of prisoners currently serving terms for §922(g) convictions. Applications for relief by federal prisoners sentenced under §922(g) will swamp the lower courts. A great many convictions will be subject to challenge, threatening the release or retrial of dangerous individuals whose cases fall outside the bounds of harmless-error review.

The §2255 Implications

Both the Davis and Rehaif cases have the potential of getting a lot of inmates released from prison either immediately or at least much earlier than before.

The way the law works is, an inmate must file a §2255 motion to ask for the Court that sentenced them to take a look and determine whether or not a sentence reduction is appropriate in their case with their specific details. Normally, only one §2255 motion is allowed per inmate, but a second one can be filed if a new Supreme Court rule is made during their sentence.

One Circuit Court has already decided that Davis created a new rule that triggers an allowance for a second, successive §2255. It is very likely both will be considered new rules, and that any inmate that is serving a sentence that was enhanced using the residual clause of a crime of violence, or any gun possession sentence where a defendant wasn’t aware they were prohibited from possessing firearms should be very interested in filing for a hearing.

If you would like PCR Consultants to help with the process of filing a §2255, or an application to a court of appeals to file a second successive §2255 with either of these cases, please contact us at (480) 382-9287 or by e-mail at [email protected] very soon.

Prosecutors and Bullying

The title of this post comes from the new essay, “Threats and Bullying by Prosecutors” by Bennett L. Gershman, a law professor at Pace University. The essay, available for free right here, is definitely worth a full read at only 19 pages, but below I will take a moment to highlight some of the sections and ways Professor Gershman deconstructs the ways prosecutors bully and threaten defendants. It starts out this way:

[Prosecutors] have been described as “virtuous,” “prudent,” “ethical,” “good,” “unique,” and “gamesmen.” But there is one persona that seems to have eluded characterization and commentary: the prosecutor as a bully. In fact, one of the most prominent features of U.S. prosecutors is their ability to threaten, intimidate, and embarrass anyone – defendants, witnesses, lawyers – without any accountability or apology. This is the conduct of a bully.

On Intimidating Grand Jury Witnesses

A state senator’s chief of staff is called in to testify against his boss. He doesn’t want to testify, but is granted immunity and told his refusal to testify can be punished with contempt, and lying is perjury. The witness says he can’t remember a meeting between his boss and a wealthy real estate developer…

The prosecutor, in an extremely agitated tone of voice exclaims: “You know you are lying. Don’t insult this grand jury. You’ll be in jail in a heartbeat unless you tell the truth. You’ll be finished. You will never work again.”
Are the prosecutor’s threats a legitimate exercise of prosecutorial power? Do these threats enhance or degrade the prosecutor’s ethical duty to serve justice?

More Highlights

Gershman goes on to highlight prosecutorial conduct in coercing guilty pleas, attacking defense experts, bullying defense witnesses (and even their own prosecution witnesses), compelling waiver of civil rights claims, retaliation, demagoguery, shaming, and coercing corporate cooperation.

Look for future posts highlighting more sections of this important essay. Any first-time offender will learn quickly how true this information is. He or she will feel bullied and coerced by the prosecuting attorney and wonder how this is part of the legal system they’ve been taught to trust. A fantastic guide for all first time offenders can be found at the first-time-offender website, which hosts the ultimate resource for anybody facing their first charge.