According to the Transactional Records Access Clearinghouse (TRAC), federal weapons convictions declined 5.8 percent in Fiscal Year 2015 from the previous fiscal year. In 2014, the U.S. Justice Department secured 6,373 weapons convictions, but the number of convictions declined in 2015 to 6,002.
TRAC data shows that federal gun convictions have been on the decline since they peaked in 2005 at 9,206. The 2005 mark was a 51.6 percent rise from the 1995 low of 3,958 convictions.
Not surprisingly, the Bureau of Alcohol, Tobacco, Firearms and Explosives was the lead investigative agency and accounted for 69.1 percent of the weapons convictions obtained in 2015. The FBI and state/local law enforcement agencies accounted for 16 percent of the convictions while Homeland Security, Customs Enforcement, and the DEA accounted for the rest.
Convictions Numbers Do Not Include Sentencing Enhancements for Guns
While down, federal weapons convictions data does not include the penalty enhancements defendants received under the U.S. Sentencing Guidelines when a weapon is involved in violent or drug trafficking criminal activity, which have remained fairly consistent .
Federal Sentencing Guideline Enhancements
U.S.S.G. 2D1.1 (b) (1) provides a two-level enhancement of a defendant’s offense level if “a dangerous weapon (including a firearm) was possessed” in relation to his or her criminal activity. The enhancement applies “if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense.”
The Fifth Circuit Court of Appeals has made it relatively easy for a sentencing judge to apply this enhancement when a weapon is connected to the charged criminal activity.
In 2010, the appeals court ruled that the government need only prove by a preponderance of the evidence that a weapon was connected to the charged criminal activity. If that burden is met, the defendant must then show that it is “clearly improbable that the weapon was connected” to the charged criminal activity.
Burden of Proof Easy on Government, Shifts to Defendant
In order to meet its burden, the government need only establish that a defendant personally possessed a weapon “by showing a temporal and spatial relationship of the weapon, the drug activity, and the defendant.”
But what happens when there is criminal activity, two or more defendants, and one weapon?
There are two rules of law here. First, when there is more than one defendant in a criminal activity to which a weapon is connected, the government need only show that any one of the defendants could have “foreseen” the possession of the weapon. Second, all defendants involved in a “jointly undertaken criminal activity” are responsible for “all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity.”
Thus, under the U.S. Sentencing Guidelines and established Fifth Circuit authority, a federal sentencing judge may infer foreseeability from a co-conspirator’s possession of a weapon.
Judge Must Make Factual Findings When Multiple Defendants
On October 30, 2015, the Fifth Circuit reinforced its 2010 rule that a sentencing judge must make detailed factual findings in cases involving multiple defendants and a weapon before the judge can apply the § 2D1.1(b)(1) enhancement.
In its October 30 decision, United States v. Rodriquez-Guerrero, the Fifth Circuit upheld the sentencing judge’s application of § 2D1.1 (b) (1) because the judge made these detailed factual findings:
“First, it is undisputed that the house where the shotgun was found was a stash house used to package and transport bundles of marijuana. It was a drug warehouse, not someone’s residence in which drugs were also stored. Second, bundles of marijuana were found in the master bedroom, making it plausible to find that either [the defendant] or another conspirator accessed the bedroom where the shotgun was found. Third, the amount of ammunition suggests that the weapon belonged to the defendant or his coconspirators in connection with the drug trade. Fourth, the shotgun was found on the same day that law enforcement observed [the defendant] and his coconspirators at the house.”
So while technically not a “weapons conviction,” Rodriquez-Guerrero’s drug conviction and sentence were enhanced because a weapon was involved. Whether or not Rodriguez-Guerrero owned the shotgun found in the drug warehouse is not important in the federal sentencing scheme. The only important thing is whether that weapon was involved in the criminal activity he was a part of.
Federal Prison Population Increases Significantly
In a 2011 report to Congress, the U.S. Sentencing Commission told federal lawmakers: “Statutes carrying mandatory minimum penalties have increased in number, apply to more offense conduct, require longer terms, and are used more often than they were 20 years ago. These changes have occurred amid other systemic changes to the federal criminal justice system, including expanded federalization of criminal law, increased size and changes in the composition of the federal criminal docket, high rates of imposition of sentences of imprisonment, and increasing average sentence lengths. The changes to mandatory minimum penalties and these co-occurring systemic changes have combined to increase the federal prison population significantly.”
Congressman Opposes Sentencing Reform
On November 2, 2015, Bob Goodlatte (R-Va,), Chairman of the House Judiciary Committee, launched a broadside attack on the U.S. Sentencing Commission for its efforts to bring some rationality in the federal sentencing scheme. Goodlatte was particularly incensed by a 2014 amendment by the Sentencing Commission that resulted in the recent release of 6,000 low-level drug offenders from the federal prison system, arguing that is new guidelines failed to consider criminal histories of inmates and set violent criminal free.
In reality few, if any, of these drug offenders had serious violent criminal histories or possessed a weapons in their criminal activity. Goodlatte’s unfounded fear mongering and get tough on crime politics is precisely what got us to the current prison problem. Goodlatte, and his tough on crime cohorts, supported the imposition of harsh mandatory minimums and sentencing guidelines that led to the prison over-population problem. In meddling with the sentencing judge’s discretion to assess a proper punishment, these harsh sentencing policies created the largest federal prison population in history, much to the delight of the private prison lobby.
Sentencing Guidelines Are the Problem
So while weapons convictions have declined in recent years, federal judges will continue to apply the enhancement for violent or drug offenders when a weapon is directly or indirectly connected to their charged criminal activity. Although federal judges now have discretion as to the final sentence, the Guidelines create an unreasonable “suggested” sentencing starting point that often makes an unreasonable final sentence.
As criminal defense attorneys we often see unreasonably harsh sentencing guideline calculations and enhancements and argue against their application. Unfortunately, sentencing judges often concur with the initial guideline calculations as presenting. This leaves it in the hands of persuasive sentencing arguments from the defense to create reasons for a downward variance for which the judge can rely. Therefore, it is vitally important that all lawyers representing defendants in federal courts to prepare thoroughly for sentencing and craft persuasive arguments for leniency based on the personal histories and positive, unique characteristics of the defendant.