PDA

View Full Version : Is 626.9 also a Federal Prohibition?


Theseus
12-23-2009, 8:03 PM
In my thread it was suggested that since 626.9 could be punished as a felony I am subject to the Federal felon in possession laws. . .

Arguments for and against?

Shotgun Man
12-23-2009, 8:19 PM
18 USCS § 922 (g):

(g) It shall be unlawful for any person--
(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;
[...]

to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.




Your crime (a misd) would appear not to qualify. Any counter-argument that your offense is a wobbler is weak. You've been convicted of a misdemeanor violation. You have not been convicted a crime punishable with more than a year.

snobord99
12-23-2009, 9:30 PM
Since I'm the one that suggested this, I think it's only fair if I chime in.

As far as the wobbler comment, the cases that I've seen indicate that what they look at is not the individual case. They look at the statute. Here, the statute clearly leaves open the possibility of being sentenced to more than one year in the state pen which would make it a felony.

I'll cite the 4th Circuit case that I cited in the other thread, United States v. Jones, 195 F.3d 205:

"In § 922(g)(1), "punishable" is an adjective used to describe "crime." As such, it is more closely linked to the conduct, the crime, than it is to the individual convicted of the conduct. Congress could have written § 922(g)(1) differently had it intended to focus on the individual in particular rather than the crime for which the individual was convicted. Instead of the phrase, "individual convicted . . . of a crime punishable by imprisonment for a term exceeding one year," Congress could have used the phrase, "individual punished by imprisonment for a term exceeding one year" or even "individual sentenced for imprisonment for a term exceeding one year.""

Shotgun Man
12-23-2009, 9:34 PM
Since I'm the one that suggested this, I think it's only fair if I chime in.

As far as the wobbler comment, the cases that I've seen indicate that what they look at is not the individual case. They look at the statute. Here, the statute clearly leaves open the possibility of being sentenced to more than one year in the state pen which would make it a felony.

I'll cite the 4th Circuit case that I cited in the other thread, United States v. Jones, 195 F.3d 205:

"In § 922(g)(1), "punishable" is an adjective used to describe "crime." As such, it is more closely linked to the conduct, the crime, than it is to the individual convicted of the conduct. Congress could have written § 922(g)(1) differently had it intended to focus on the individual in particular rather than the crime for which the individual was convicted. Instead of the phrase, "individual convicted . . . of a crime punishable by imprisonment for a term exceeding one year," Congress could have used the phrase, "individual punished by imprisonment for a term exceeding one year" or even "individual sentenced for imprisonment for a term exceeding one year.""

You're ignoring the distinction between misdemeanor and felony. There is misdemeanor 626.9 and felony 626.9. The crime here is misd 626.9.

snobord99
12-23-2009, 9:43 PM
You're ignoring the distinction between misdemeanor and felony. There is misdemeanor 626.9 and felony 626.9. The crime here is misd 626.9.

Which is only relevant as to what he was sentenced to and completely irrelevant to what he could have been sentenced to.

Read the above case. I think this one is the clearest on the concept of the 4 or 5 that I read. For some of the others, refer to http://www.calguns.net/calgunforum/showpost.php?p=3539292&postcount=951.

Shotgun Man
12-23-2009, 9:46 PM
Which is only relevant as to what he was sentenced to and completely irrelevant to what he could have been sentenced to.

Read the above case. I think this one is the clearest on the concept of the 4 or 5 that I read. For some of the others, refer to http://www.calguns.net/calgunforum/showpost.php?p=3539292&postcount=951.

I don't think I have to read the above case. When you're charged with a crime, the prosecution must specify in the charging document whether you're charged with a misdemeanor or felony. That way you know what you're facing.

On a misd, you cannot be sentenced to over a year.

snobord99
12-23-2009, 9:51 PM
I don't think I have to read the above case. When you're charged with a crime, the prosecution must specify in the charging document whether you're charged with a misdemeanor or felony. That way you know what you're facing.

On a misd, you cannot be sentenced to over a year.

How about this, read the cases before you make me argue with someone who thinks they know what they're talking about? I didn't come in here having only read the statute and then say "I think ____." Maybe you could do the same?

If I'm wrong, you wasted 15 minutes. If you're wrong, you'll be far better informed.

Shotgun Man
12-23-2009, 10:17 PM
How about this, read the cases before you make me argue with someone who thinks they know what they're talking about? I didn't come in here having only read the statute and then say "I think ____." Maybe you could do the same?

If I'm wrong, you wasted 15 minutes. If you're wrong, you'll be far better informed.

You may be correct. I've read two of the cases you cited. The second case supports your position somewhat.

Crazy.

snobord99
12-23-2009, 11:07 PM
You may be correct. I've read two of the cases you cited. The second case supports your position somewhat.

Crazy.

I'm not here to spread FUD ;)...and, at the same time...:(.

hoffmang
12-23-2009, 11:39 PM
Other than a misdemeanor crime of domestic violence, I'm fully unaware of any misdemeanor that the Federal government considers a firearms prohibition.

Example: DUI's are often wobblers. That entire class is not a prohibiting conviction.

-Gene

Theseus
12-23-2009, 11:53 PM
I'm not here to spread FUD ;)...and, at the same time...:(.

Good thing it is only enforceable in the 4th! Guess I would find out if I try to buy a gun and get denied, huh?

snobord99
12-24-2009, 12:33 AM
Other than a misdemeanor crime of domestic violence, I'm fully unaware of any misdemeanor that the Federal government considers a firearms prohibition.

Example: DUI's are often wobblers. That entire class is not a prohibiting conviction.

-Gene

But a DUI isn't a wobbler until you hit your 4th one within 10 years. Not in California. The Vehicle Code specifically has a section for a 1st, a 2nd, a 3rd and a 4th+ offense. The VC specifically classifies the 1st, 2nd, and 3rd offense as misdemeanors (VC 23536, 23540, 23546, respectively) so these wouldn't trigger a firearms prohibition. VC 23550 is for the 4 or more DUI violators and this is a wobbler. I think VC 23550 would be considered firearms prohibiting under the cases that I saw.

I think you're right in it that the "entire class" is not prohibiting, but when you hit 4 or more within 10 years, then I think it becomes prohibiting. I don't think the majority of DUI offenders hit 4 within 10 years so they, as a class, generally aren't prohibited; however, if you do hit that 4th one, I think they could prosecute you under 18 USC 922(g)(1).

Thoughts?

snobord99
12-24-2009, 12:36 AM
Good thing it is only enforceable in the 4th! Guess I would find out if I try to buy a gun and get denied, huh?

Yea, but the other cases I cited in the other thread include the 9th, 10th and Conn. District Court. And I didn't see any case that contradicted them (meaning, I didn't see a circuit split) so you may be screwed no matter where you go.

I have no idea if this is even something that'll get you denied or if it's something that won't get you denied but will get you f@#$ed if you're "caught" with it later on...:(

Just...things to watch out for...

Cokebottle
12-24-2009, 12:44 AM
Wait about 6 months for the databases to be updated and file a federal eligibility check.

Theseus
12-24-2009, 12:47 AM
People v. Gilbreth (2007) , Cal.App.4th . . In at least for California, once a crime is charged as a misdemeanor it is a misdemeanor.

I am having trouble finding the Jones case. . . Findlaw is wierd. . . sometimes I can use the cite number. . . sometimes I have to search by keyword or person name.

ke6guj
12-24-2009, 1:17 AM
I thought the wording of that federal law was to cover people who were convicted of a felony, but were sentenced to terms of less than one year. But since they could have been sentenced to more than a year, they were prohibited.

If you are charged and convicted of a misdemeanor, then you are not federally prohibited. IIRC, that even includes misdemeanors that have a possible sentence of TWO years.

snobord99
12-24-2009, 1:22 AM
People v. Gilbreth (2007) , Cal.App.4th . . In at least for California, once a crime is charged as a misdemeanor it is a misdemeanor.

I am having trouble finding the Jones case. . . Findlaw is wierd. . . sometimes I can use the cite number. . . sometimes I have to search by keyword or person name.

Thank God I don't have to use Findlaw :p.

This is a good case though. I'll do some more research into the federal cases later, I do recall seeing one of the cases say they base it on what the state court considers the prior but then I know I saw cases saying that what they look at is the possible sentence and not the actual sentence. I'll have to do more research...

snobord99
12-24-2009, 2:08 AM
From what I can see the situation is this. . . Once the DA decided to charge it as a misdemeanor it is not a crime that is punishable by more than a year in prison.

Hmm, I'm going to disagree. I'm getting tired so I'm going to hit the sack, but here are a couple 9th Circuit cases that I think are relevant.

United States v. Tallmadge, 829 F.2d 767 (Especially this one)
United States v. Murillo, 422 F.3d 1152

I didn't read either of these in great detail since my eyes are barely staying open, but from the parts I read (if I read it correctly in my current condition), I don't think the initial charge or how the case ultimately turned out matters. What matters is the statute itself.

Edit: I'll take a look at the cases you cited tomorrow.

GrizzlyGuy
12-24-2009, 7:59 AM
Found it. . . United States v Murillo . . . I can't find the cite. . . but 9th circuit U.S.C.A. No. 04-30508 or U.S.D.C.No. CR-04-2074-EFS

"whether a prior conviction falls under the scope of the federal law depends upon whether the “sentencing court had discretion to impose a term of incarceration of more than one year.” See United States v. Minnick, 949 F.2d 8, 9 (1st Cir. 1991)."

Since I was charged with a misdemeanor without the possibility of more than 12 months, I am not prohibited Federally.

I hate to say it, but I agree with snobord99. :(

From 626.9(f)(2)(B) (http://law.onecle.com/california/penal/626.9.html), here is how you could have been sentenced:

(B) By imprisonment in a county jail for not more than one year or
by imprisonment in the state prison for two, three, or five years,
in all cases other than those specified in subparagraph (A).

You weren't sentenced to two, three, or five years in state prison, but you could have been.

In U.S. v. Pruner (http://ftp.resource.org/courts.gov/c/F2/606/606.F2d.871.78-3560.html) (9th circuit) they quote themselves saying this from United States v. Houston, 547 F.2d 104 (9th Cir. 1976) (http://openjurist.org/547/f2d/104/united-states-v-houston):

State laws designating a crime as either a misdemeanor or a felony are relevant only in cases where the prior offense did not involve a firearm and is punishable by imprisonment of less than two years. Where those conditions are inapplicable, we look to state law solely to determine whether the maximum permissible prison term exceeds one year. If so, the state conviction constitutes a felony for purposes of 18 U.S.C.App. § 1202.

Those conditions that I bolded are not met: your case did involve a firearm and you could have been imprisoned for 5 years. Therefore, this part of the quote applies:

Where those conditions are inapplicable, we look to state law solely to determine whether the maximum permissible prison term exceeds one year. If so, the state conviction constitutes a felony for purposes of 18 U.S.C.App. § 1202.

The maximum permissible prison term of 5 years is greater than 1 year, so "the state conviction constitutes a felony for purposes of 18 U.S.C.App. § 1202".

Bummer, you're hosed in all states (or at least the states within 9th circuit), and this is one more great reason for you to win your appeal. :(

Theseus
12-24-2009, 8:55 AM
I hate to say it, but I agree with snobord99. :(

From 626.9(f)(2)(B) (http://law.onecle.com/california/penal/626.9.html), here is how you could have been sentenced:

(B) By imprisonment in a county jail for not more than one year or
by imprisonment in the state prison for two, three, or five years,
in all cases other than those specified in subparagraph (A).

You weren't sentenced to two, three, or five years in state prison, but you could have been.

In U.S. v. Pruner (http://ftp.resource.org/courts.gov/c/F2/606/606.F2d.871.78-3560.html) (9th circuit) they quote themselves saying this from United States v. Houston, 547 F.2d 104 (9th Cir. 1976) (http://openjurist.org/547/f2d/104/united-states-v-houston):



Those conditions that I bolded are not met: your case did involve a firearm and you could have been imprisoned for 5 years. Therefore, this part of the quote applies:



The maximum permissible prison term of 5 years is greater than 1 year, so "the state conviction constitutes a felony for purposes of 18 U.S.C.App. § 1202".

Bummer, you're hosed in all states (or at least the states within 9th circuit), and this is one more great reason for you to win your appeal. :(

So now, since it was a 1979 case we need to find more recent and guiding case law. . . it could have been ruled invalid already.

And why is it that no one is hearing about this issue? Why is it that none of "the right people" have heard of anything like this? (Not that I am accusing) but I almost tought for a moment of not going on with appeal, but if this is the case then come hell or high water I will win my case!

GrizzlyGuy
12-24-2009, 9:01 AM
So now, since it was a 1979 case we need to find more recent and guiding case law. . . it could have been ruled invalid already.

That's possible, this Google query (http://www.google.com/search?q=who+has+been+convicted+in+any+court+of%2C +a+crime+punishable+by+imprisonment+for+a+term+exc eeding+one+year) turned up a lot of cases, and I didn't go through them all to look for later ones.

snobord99
12-24-2009, 9:03 AM
So now, since it was a 1979 case we need to find more recent and guiding case law. . . it could have been ruled invalid already.

United States v. Murillo, 422 F.3d 1152. I don't think that case helps you since the holding was: "we hold the maximum sentence that makes a prior conviction under state law a predicate offense under 18 U.S.C. § 922(g)(1) remains, after Blakely, the potential maximum sentence defined by the applicable state criminal statute, not the maximum sentence which could have been imposed against the particular defendant for his commission of that crime according to the state's sentencing guidelines."

That said, I'm doing a 180 and saying you might be OK. I looked for cases that specifically dealt with wobblers. This is what I found thus far: United States v. Bridgeforth, 441 F.3d 864 (9th Cir. 2006). It doesn't deal specifically with 922, but I believe the rational will carry over.

I also checked the Houston case and it's easily distinguishable. Houston said "State laws designating a crime as either a misdemeanor or a felony are relevant only in cases where the prior offense did not involve a firearm and is punishable by imprisonment of less than two years" but the federal statute in question specifically says that it doesn't count as a misdemeanor if it involves a firearm and is only punishable by over 2 years in prison. §922 doesn't include such language.

Assuming there's no circuit split (I did a quick check and didn't see one) and assuming my understanding of what you were sentenced to is correct, I'm concluding that you're ok but you should definitely ask your attorney.

snobord99
12-24-2009, 9:05 AM
And why is it that no one is hearing about this issue? Why is it that none of "the right people" have heard of anything like this? (Not that I am accusing) but I almost tought for a moment of not going on with appeal, but if this is the case then come hell or high water I will win my case!

I'm guessing it's either because 1) it's a non-issue or 2) you're a case of first impression. At least for us. ;)

Theseus
12-24-2009, 9:28 AM
United States v. Murillo, 422 F.3d 1152. I don't think that case helps you since the holding was: "we hold the maximum sentence that makes a prior conviction under state law a predicate offense under 18 U.S.C. § 922(g)(1) remains, after Blakely, the potential maximum sentence defined by the applicable state criminal statute, not the maximum sentence which could have been imposed against the particular defendant for his commission of that crime according to the state's sentencing guidelines."

That said, I'm doing a 180 and saying you might be OK. I looked for cases that specifically dealt with wobblers. This is what I found thus far: United States v. Bridgeforth, 441 F.3d 864 (9th Cir. 2006). It doesn't deal specifically with 922, but I believe the rational will carry over.

I also checked the Houston case and it's easily distinguishable. Houston said "State laws designating a crime as either a misdemeanor or a felony are relevant only in cases where the prior offense did not involve a firearm and is punishable by imprisonment of less than two years" but the federal statute in question specifically says that it doesn't count as a misdemeanor if it involves a firearm and is only punishable by over 2 years in prison. §922 doesn't include such language.

Assuming there's no circuit split, I'm concluding that you're ok but you should definitely ask your attorney.

I was told by my lawyer and I believe even the DDA mentioned that I am not Federally prohibited.

But even if I was. .. they would need to get a Federal prosecutor on board with charging me. . . Lets say I moved to Montana where this was not a crime and the police caught me with a firearm. .. I doubt they would look at my criminal background and turn me in to the Feds. . . unless they really wanted me for something.

Besides, the way I understand it, if I completed my own 80% 1911 to a full 1911 the firearm was not involved in interstate commerce and thus not enforcible against me! Haha! I could easily make my own ammunition and also not be subject.

snobord99
12-24-2009, 10:29 AM
I was told by my lawyer and I believe even the DDA mentioned that I am not Federally prohibited.

But even if I was. .. they would need to get a Federal prosecutor on board with charging me. . . Lets say I moved to Montana where this was not a crime and the police caught me with a firearm. .. I doubt they would look at my criminal background and turn me in to the Feds. . . unless they really wanted me for something.

Besides, the way I understand it, if I completed my own 80% 1911 to a full 1911 the firearm was not involved in interstate commerce and thus not enforcible against me! Haha! I could easily make my own ammunition and also not be subject.

Yea, but you never know if they told you that because they have experience, did the research or just based on a "this is a misdemeanor so it shouldn't count" theory. I don't know about your attorney, but I'd assume that the DDA is no expert in federal law and doubt they'd do the research just to tell you if it's federally prohibiting...

I try not to base my decisions on an assumption that someone won't screw me later on. I try to base them on the assumption that they will ;).

I believe you could still be on the hook if any part of the gun or ammo touched interstate commerce but I'm not as sure and I'm not going to bother looking since I think the point is moot anyways :p

hoffmang
12-24-2009, 12:29 PM
Yea, but you never know if they told you that because they have experience, did the research or just based on a "this is a misdemeanor so it shouldn't count" theory. I don't know about your attorney, but I'd assume that the DDA is no expert in federal law and doubt they'd do the research just to tell you if it's federally prohibiting...

His counsel is a firearms defense expert both Federally and in this State. He got a judge to tell Iggy that even though Iggy says an apple is an orange doesn't make it so in regards to MP5 trigger groups.

Now the truth of the matter is that I think this is the first successful prosecution under 626.9 that wasn't otherwise criminal (drug dealer near a school, etc...) As such it makes it a bit of a first impression question. However, I've never heard of a wobbler convicted as a misdo that is not an MCDV being used federally to prohibit. Especially with US v. Skoien floating around, I think the Feds would have a hard time saying that treating this violation as a prohibiting misdemeanor would be very hard under intermediate scrutiny.

It's possible there is a federal issue here, but I highly doubt it. I'm going to read the cites above though as I have a moment.

-Gene

snobord99
12-24-2009, 2:30 PM
It's possible there is a federal issue here, but I highly doubt it. I'm going to read the cites above though as I have a moment.

-Gene

I wouldn't worry about it too much. I think Bridgeforth clarifies how wobblers are to be treated but the other cases are decent background if it's something you care to look at.

anthonyca
12-24-2009, 5:36 PM
I was told by my lawyer and I believe even the DDA mentioned that I am not Federally prohibited.

But even if I was. .. they would need to get a Federal prosecutor on board with charging me. . . Lets say I moved to Montana where this was not a crime and the police caught me with a firearm. .. I doubt they would look at my criminal background and turn me in to the Feds. . . unless they really wanted me for something.

Besides, the way I understand it, if I completed my own 80% 1911 to a full 1911 the firearm was not involved in interstate commerce and thus not enforcible against me! Haha! I could easily make my own ammunition and also not be subject.

Wouldn't the Feds just argue that 20% of the gun or somepart affected interstate commerce? What was the wheat case?(I am on my iPhone) Didn't the SCOTUS rule that the wheat that (wickard?) grew on his own property affected intestate commerce because he didn't have to buy as much wheat? Wrongly decided I think.

Is there any precedent for someone beating a USC 922g charge by manufacturing thier own gun?