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.

The 2019 U.S. Supreme Court

What Acquitted Conduct Says about Justice Kavanaugh and Federal Defendants and Supervised Release

The Supreme Court has changed drastically over the last two years. With the inclusion of both Justice Gorsuch and Justice Kavanaugh to the highest court in the Country, there are plenty of questions on what way things will go for federal defendants at the Supreme Court in the next few decades.

There is no easy answer to this, as many Supreme Court Justices look one way during confirmation, and then act differently after they sit on the bench. This is most markedly observed when strict constructionalism meets federalism in a real way. That, however, is a longer discussion for a different post.

This post focuses on how the two newest justices might shape the way criminal matters are decided in the near to far future.


In recent cases, there have been significant decisions by the Supreme Court when it comes to the Armed Career Criminal Act (ACCA). In April of 2018, the case of Session v. Dimaya sided heavily with defendants. This case said that the residual clause of the definition of a crime of violence (per 18 U.S.C. §924(e)) was unconstitutionally vague.

In the simplest of terms, this case threw out a vague definition of what could be considered a crime of violence. It found that just because the act of committing a crime had the potential for violence, didn’t mean it could be considered a violent crime. That asks judges to use too much fortune-telling to be comfortably constitutional.

Whether or not Kavanaugh would have voted with the majority here is a matter of pure speculation, but the case was decided in a 5-4 split that could have swung either way. Kennedy voted against this majority, so even if Kavanaugh would have held the same opinion, this case would have still landed on the side of defendant Dimaya.

But there is wrinkle here. Kavanaugh, although having few opinions to draw on from his time on the D.C. Circuit, is a strong opponent to acquitted conduct. This is the principle of using conduct that the defendant was not convicted of, in order to lengthen their sentence.

Hypothetical Scenario: Consider a kid who was arrested for public intoxication and terroristic threats at age 19. He was actually drinking an energy drink and defending another kid from a bully, but mistakes happen and this hypothetical situation is resolved when a quick bench trial acquits him of both charges.

8 years down the line this same kid is charged as a part of a drug conspiracy when his local weed dealer is taken down by the DEA. He’s guilty of selling some extra weed this dealer had to get rid of 6 months prior, but gets charged (as all conspiracies go) with the entire amount of weed dealt by co-conspirators during that entire 6 month period. At his sentencing, that arrest shows up on the presentence report as criminal history with no points. However, the “Acquitted Conduct” section of the Sentencing Guidelines Manual adds a year to the sentence for something he was never convicted of.

Justice Kavanaugh has stated, on multiple occasions, that he believes the use of acquitted conduct to increase the length of a criminal sentence is both worrisome and a violation of due process protections. He even stated this in front of the Sentencing Commission in 2009.

Few conclusions can be made from this small example, however it is clear from his statements to the Sentencing Commission that Kavanaugh is committed to giving defendant’s a fair shake, and is a firm believer that the constitution guarantees this fairness.

Supervised Release

The future will tell what the new Supreme Court will do with issues of supervised release, but the wait won’t be long. In November of 2018, the Court agreed to review the case of Jason Mont.

Mont, who committed drug crimes while on supervised release for an early drug conspiracy, was indicted by the State of Ohio on these new drug charges, and the federal district court was informed of his violation of federal supervised release conditions.

Mont was held in county jail for 10 months during while awaiting trial for the Ohio charges. During that 10 months, his term of supervised release ended. After he was convicted and sentenced to 6 years in state prison, he was then given a revocation of supervised release in federal court and a 42 month sentence there as well.

Mont appealed to the 6th Circuit. 18 U.S.C. §3583(i) says that:

The power of the court to revoke a term of supervised release for violation of a condition of supervised release, and to order the defendant to serve a term of imprisonment and, subject to the limitations in subsection (h), a further term of supervised release, extends beyond the expiration of the term of supervised release for any period reasonably necessary for the adjudication of matters arising before its expiration if, before its expiration, a warrant or summons has been issued on the basis of an allegation of such a violation.

However, does this apply to pretrial holding? Mont’s lawyers argued that it doesn’t. However, the 6th Circuit disagreed and affirmed the district court’s decision.

Mont then appealed to the Supreme Court, who granted review of this case on November 2, 2018.

This will be a good case to take the temperature of the Supreme Court, in its newest form, regarding issues of federal supervised release.

Check back often for updates on these issues and many others.