Relevant Conduct & Felon-in-Possession

Relevant Conduct & Felon-in-Possession Districts of Kansas & Western Missouri Guideline Training Seminar Kansas City, MO Thursday, February 25, 2016 February 18, 2016

Presenters Melody Brannon Federal Public Defender District of Kansas DustonSlinkard Criminal Coordinator, Topeka U.S. Attorney’s Office District of Kansas Rusty Burress Principal Training Advisor Office of Education & Sentencing Practice U.S. Sentencing Commission

§2K2.1 – “Felon-in-Possession” Unlawful Receipt, Possession, or Transportation of Firearms or Ammunition; or Prohibited Transactions Involving Firearms or Ammunition

§2K2.1(a) – Base Offense Levels (BOLs) • Eight BOLs, from 6 to 26, determined by various factors and combinations, including: • Status, including “felon-in-possession” & “straw purchaser” of a firearm or ammunition • More serious types of firearms • Prior convictions of “crime of violence” or “controlled substance offense” • Requires use of the “Categorical Approach”

§2K2.1(b) – Specific Offense Characteristics (SOCs) and §2K2.1(c) – Cross Reference • Number of firearms • “Destructive device” • Firearm stolen or had altered serial number • Firearm trafficking • Use, possession, or transfer of firearm or ammunition in connection with another offense • 7 SOCs and 1 Cross Reference, including:

Impact of a Chapter Two Offense Guideline Being on the Included List at §3D1.2(d)

Relevant Conduct & Multiple Counts §§2K2.1 & 1B1.3(a)(2) & 3D1.2(d) • Acts in the same course of conduct, common scheme or plan as the offense(s) of conviction will be included • There will only be a single application of the multiple counts of §2K2.1, based on all relevant conduct

“Expanded Relevant Conduct” §1B1.3(a)(2): Course of Conduct, Common Scheme or Plan F-I-P Firearm 2 (§2K2.1) F-I-P Firearm 3 (§2K2.1) F-I-P Firearm 4 (§2K2.1) F-I-P Firearm 1 (§2K2.1) Offense of Conviction

“Expanded Relevant Conduct” (cont.) §1B1.3(a)(2): Course of Conduct, Common Scheme or Plan • The guideline for the offense of conviction, §2K2.1, is on the “included list” at §3D1.2(d), so it uses “expanded Relevant Conduct” (§1B1.3(a)(2)) • If there were counts of conviction for the other offenses they would also use §2K2.1 • So if the other offenses were in the same course of conduct or common scheme or plan as the offense of conviction, they will be relevant conduct

Grouping Under “Rule (d)” “Straw” 1 (§2K2.1) “Straw” 2 (§2K2.1) “Straw” 4 (§2K2.1) “Straw” 3 (§2K2.1) One application, with the offense level for the group based on an aggregate of the firearms and the offense conduct “taken as a whole”

Issue: §2K2.1(a) – Base Offense Levels (BOLs) for More Serious Types of Firearms • Semiautomatic firearm capable of accepting a large capacity magazine • Application Note 2 requires that a magazine that could accept more than 15 rounds was either: • attached to the firearm, or • in close proximity to the firearm §2K2.1(a)(1), (a)(3), & (a)(4)

Selected Specific Offense Characteristics §2K2.1(b)

Number of Firearms SOC §2K2.1(b)(1), App. Note 5 Number of Firearms Increase in Level (A) 3-7 add 2 (B) 8-24 add 4 (C) 25-99 add 6 (D) 100-199 add 8 (E) 200 or more add 10

Stolen Gun/Obliterated Serial Number SOC §2K2.1(b)(4), App. Note 8 • If any firearm • Was stolen, increase by 2 levels • Had an altered or obliterated serial number, increase by 4 levels • Strict liability standard OR (i.e., cannot give both; use the greater)

Issue Regarding Stolen Firearm §2K2.1(b)(4) & App. Note 8 • If the only offense is § 922(i), (j), or (u), or § 924(l) or (m) (offenses involving stolen firearms/ammunition) • The BOL is determined under (a)(7) (BOL 12) • Do not apply SOC (b)(4)(A) (+2) for stolen firearm, but the SOC for altered serial number (b)(4)(B) (+4) can apply AND

Issue Regarding Stolen Firearm (cont.) §2K2.1, App. Note 8 • However, if the BOL is not determined under (a)(7), e.g., BOL (a)(6)(A) (BOL 14) for “prohibited person”: • SOC (b)(4)(A) for stolen firearm (+2) will also apply, (unless SOC (b)(4)(B) for altered serial number (+4) also applies, as only the greater is used) Note: There is a similar application for a conviction for an altered serial number, BOL (a)(7), and SOC (b)(4)(B)

“Trafficking” SOC §2K2.1(b)(5) & App. Note 13 • If the defendant engaged in the trafficking of firearms, increase by 4 levels • Note the limitations of the definitions in Application Note 13(B)

Used or Possessed in Connection withAnother OffenseSOC & Cross Reference §2K2.1(b)(6)(B) & (c)(1) and App. Note 14

“In Connection With” §2K2.1(b)(6)(B) & (c)(1) and App. Note 14 • In General: Apply if the firearm or ammunition facilitated, or had the potential of facilitating another (felony) offense • Specific Guidance When a Burglary or Drug Trafficking: • When a firearm is taken in the course of a burglary • When a firearm is in close proximity to drugs, drug manufacturing materials, or drug paraphernalia

“Used or Possessed” SOC §2K2.1(b)(6)(B) and App. Note 14 • If the defendant: • Used or possessed any firearm or ammunition in connection with another felony offense • Possessed or transferred any firearm or ammunition with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony offense OR Increase by 4 levels, with floor of 18

“Used or Possessed” Cross Reference §2K2.1(c)(1) and App. Note 14 • If the defendant: • Used or possessed any firearm or ammunition cited in the offense of conviction in connection with commission or attempted commission of another offense • Possessed or transferred a firearm or ammunition cited in the offense of convictionwith knowledge or intent that it would be used or possessed in connection with another felony offense OR Apply the cross reference, if greaterthan §2K2.1

Amendment #784, Effective 11/1/14 • Clarified the operation of Relevant Conduct at §2K2.1 regarding a firearm or ammunition having been used or possessed in connection with another offense • Addressed distinctions among 4th, 5th, 6th, 7th, & 11th Circuits • Limits the cross reference at §2K2.1(c)(1) to the firearm(s) or ammunition cited in the offense of conviction • Commission policy decision

Amendment #784, Effective 11/1/14 Clarification of the Operation of Relevant Conduct in §2K2.1(b)(6)(B) and (c)(1) • §2K2.1, App. Note 14(E) has explanation and examples: • The firearm or ammunition that is the basis for the SOC and cross reference is established by relevant conduct at §1B1.3(a)(1) or (a)(2) • However, the SOC and cross reference themselves are relevant conduct under §1B1.3(a)(4)

Relevant Conduct §1B1.3(a) (a)(1) & (a)(2): Analysis to establishrelevant acts (a)(3): Harms resulting from, or that were the object of the acts established in (a)(1) & (a)(2) -E.g., “loss” and “injury” are harms (a)(4): Information specified for application in a particular guideline

Distinctions Between §2K2.1(b)(6)(B) and (c)(1) • SOC (b)(6)(B) applies to • Firearm(s) and/or ammunition cited in the offense of conviction AND • Firearm(s) and/or ammunition that are not cited in the offense of conviction but are in “the same course of conduct/common scheme or plan as the offense of conviction

Distinctions Between §2K2.1(b)(6)(B) and (c)(1) (cont.) • Cross reference (c)(1) applies only in cases in which the firearm(s) and/or ammunition cited in the count of conviction was used or possessed in connection with another offense

Pointers for §2K2.1(b)(6)(B) and (c)(1) §2K2.1, App. Note 14(C) & §1B1.5, App. Note 3 • Can be based on any federal, state, or local offense (e.g., drug trafficking, robbery, assault, murder), except • Not another firearms or explosive offense • If the firearm or ammunition was involved in more than one offense, the cross reference is applied to the one resulting in the greatest offense level

Issue Regarding Relevant Conduct §§2K2.1 & 1B1.3(a)(2) & 3D1.2(d) • Defendant, a felon with a prior conviction for a crime of violence, was dealing drugs and using a firearm in relation to the offense, § 924(c) • A subsequent execution of a warrant and search found the defendant in possession of a different firearm

Issue Regarding Relevant Conduct (cont.) §§2K2.1 & 1B1.3(a)(2) & 3D1.2(d) • In the application of §2K2.1 forthe conviction for felon-in-possession citing the firearm seized in the search, is the firearm in the § 924(c) included in the relevant conduct? • Will the firearm in the § 924(c) be used in counting the number of firearms (SOC (b)(1))? • If the § 924(c) firearm was stolen, would that be a basis for applying the stolen firearm SOC ((b)(4)(A))?

Issue Regarding Relevant Conduct (cont.) §§2K2.1 & 1B1.3(a)(2) & 3D1.2(d) • Will the SOC for Used/Possessed in Connection with an Offense ((b)(6)(B)) apply? The cross reference ((c)(1))? • If the drug trafficking, the § 924(c), and the felon-in-possession are being sentenced at the same time, will the counts group?

Drug Trafficking, § 924(c) & Felon-in-Possession Count 2: §2K2.4 § 924(c) 60 mos. consec. Count 1: §2D1.1 Drug Trafficking 26 + 2= 26 Count 3: §2K2.1 Felon-in-Poss. 20 + 2 + 4= 22 (Cross Ref = N/A) Offense Level = 26 § 924(c) count runs consecutively to all counts Group Counts 1 and 3 under §3D1.2(c)

Other Issues Regarding “Used or Possessed” §2K2.1(b)(6)(B) & (c)(1) and App. Note 14 • The defendant, a felon, committed the state offenses of assault and use of a firearm in the assault • A week after that offense occurred, the defendant was arrested with a different firearm • The state prosecuted the assault and use of a firearm in the assault, and as a result, the defendant was sentenced to 5 years’ imprisonment; thus far he has served one year of that sentence

Other Issue Regarding “Used or Possessed” (cont.) §2K2.1(b)(6)(B) & (c)(1) and App. Note 14 • The defendant was then prosecuted federally for the different firearm he had possessed, and is now convicted of felon-in-possession of that firearm • Will the firearm in the state offense be relevant conduct to the firearm in the instant federal offense? • Will the Used/Possessed SOC and/or cross reference apply based on the state assault?

Other Issue Regarding “Used or Possessed” (cont.) §2K2.1(b)(6)(B) & (c)(1) and App. Note 14 • Will the 5-year state sentence be counted for criminal history points? • Will §5G1.3(b) apply, which directs the court to adjust the instant federal sentence for the period of imprisonment already served on the undischarged term, and to impose the instant federal sentence to run concurrently with the undischarged term?

Note the Distinctions §2K2.1(b)(6)(B) & (c)(1) and App. Note 14(E) • While the firearms considered in the determination of Used/Possessed are relevant conduct under §1B1.3(a)(1) or (a)(2), the Used/Possessed SOC & cross reference themselves are relevant conduct under §1B1.3(a)(4) • A previous sentence is not counted for criminal history if it is relevant conduct under any of the provisions of §1B1.3(a)(1)-(4) (See 4A1.2(a)(1) & App. Note 1)

Note the Distinctions (cont.) §2K2.1(b)(6)(B) & (c)(1) and App. Note 14(E) • §5G1.3(b), directing that the instant federal sentence be imposed to run concurrently with an undischarged term of imprisonment, and adjusted for imprisonment already served on the undischarged sentence, is not to be based on relevant conduct under §1B1.3(a)(4) (See §5G1.3(c) & App. Note 3)

Note the Distinctions (cont.) §2K2.1(b)(6)(B) & (c)(1) and App. Note 14(E) • Note, however, that use of the §2K2.1(c)(1) cross reference will result in application using the relevant conduct applicable for the cross referenced offense (See §1B1.5)

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Relevant Conduct & Felon-in-Possession