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Kirk Redmondhttp://www.blogger.com/profile/05149425706408433721noreply@blogger.comBlogger490125
Updated: 2 hours 58 min ago

"Surplus" does not make an otherwise legal wiretap order insufficient

Sun, 05/20/2018 - 13:32

The Supreme Court decided Dahda v. United States, 2018 WL 2186173 (U.S. May 14, 2018), this past week. As you may know, this case originated from Kansas and involves the federal wiretap statute (18 USC 2510-2518). We previously blogged about the case here. In Dahda, the Supreme Court affirmed the Tenth Circuit's decision, but rejected its reasoning. The Supreme Court was not kind to the Tenth Circuit’s analysis, calling its interpretation of the statute “too narrow” and reminding the Tenth that the statute “means what it says.”

The wiretap statute includes a statutory suppression remedy (or an exclusionary rule), which applies in three instances: (1) where a communication was unlawfully intercepted; (2) where the order authorizing the intercept was "insufficient on its face"; and (3) where the intercept did not conform with the order authorizing the interception. 

Dahda involved the second provision. The Court held that an order's sufficiency is measured via 2518(4), which requires the order to include the “identity of the person, if known, whose communications are to be intercepted,” “a particular description of the type of communication sought to be intercepted, and a statement of the particular offense to which it relates." The Dahdas objected to something else: a sentence within the order authorizing interception of phones located “outside the territorial jurisdiction of the court,” and further authorizing the interception to “take place in any other jurisdiction within the United States.”

In a bit of a brain buster, the Court held that this sentence did not make the order insufficient (even though it was “without legal effect” because the order could not legally authorize a wiretap outside Kansas). Instead, the sentence was surplus. “Were we to remove the sentence from the Orders, they would then properly authorize wiretaps within the authorizing court's territorial jurisdiction. A listening post within the court's territorial jurisdiction could lawfully intercept communications made to or from telephones located within Kansas or outside Kansas.” And here, the government did not use any evidence at trial that was obtained from a listening post outside of Kansas.

This last fact appears dispositive. Nothing from outside of Kansas was admitted, so nothing outside of Kansas should have been (but was not) suppressed. The territorial language, right or wrong, did not make the order insufficient. So the Dahdas lose (in a unanimous decision). 

As an aside, the Court does not address what would have happened if communications seized from a listening post outside of Kansas, from phones not located within Kansas, were admitted at trial; perhaps they would have to be excluded as “unlawfully intercepted.”

It's a short decision worth the read. 

--Dan Hansmeier

Testimony on drug courier profiles alone cannot establish guilt

Sun, 05/13/2018 - 18:01

Expert testimony on drug courier profiles is inherently prejudicial. It has the potential for “including innocent citizens as profiled drug couriers” because simply matching a defendant to a drug profile “suggests to the jury that otherwise innocuous conduct or events demonstrate criminal activity.” Hence the reversal last week by the Ninth Circuit in United States v. Espinoza-Valdez where the government hung their hat “almost exclusively” on drug courier profile testimony.
In Espinoza-Valdez, evidence at trial demonstrated Espinoza-Valdez’s presence with two unknown men in a known drug-smuggling corridor close to the Mexican border near what appeared to be a camp for drug trafficking scouts. Evidence also demonstrated “the seizure of items that were suspicious in this context.” Nevertheless, “there was insufficient evidence for a jury to find beyond a reasonable doubt that Espinoza-Valdez entered into a conspiratorial agreement to import or distribute marijuana[,]” wrote D.C. District Court Judge Friedman sitting in designation for the Ninth Circuit. And this was true despite the introduction of 404(b) evidence that agents had previously apprehended Espinoza-Valdez in the same area, and that he had told the agents at that time that he and others were backpacking marijuana across the desert.
In short, the government may not rely on inherently prejudicial “expert testimony of drug courier profiles alone to establish guilt.” In Espinoza-Valdez the government presented no evidence of drugs that actually passed through or were intended to pass through the area under Espinoza-Valdez’s watch. “There simply [was] no evidence as to what (if anything) was specifically agreed to, who agreed to it, or what any agreement was intended to accomplish.”
“While it is possible, perhaps even probable, that Espinoza-Valdez was on the mountaintop to act as a scout for drug traffickers, a reasonable suspicion or probability of guilt is not enough.” Guilt, “according to the basic principles of our jurisprudence,” Judge Friedman stresses, demands more.

Lifetime supervised release for drug addict substantively unreasonable

Tue, 05/08/2018 - 18:38
Say your recently released federal client repeatedly tests positive for marijuana, picks up a state drug-possession case, is referred to drug treatment, and then repeatedly fails to report for scheduled drug testing. Not a great situation, but certainly not the worst thing a client ever did on supervised release, is it? Not so bad that you would expect him to be revoked, sentenced to 12 more months in prison, and then placed on lifetime supervised release, is it?

Or is it? Because that's what happened in United States v. Brooks, at least until the Second Circuit stepped in. Placing this defendant on lifetime supervised release was substantively unreasonable, held the Circuit.

Some of the good bits:

Supervised release is "a serious sanction that imposes significant limitations on a defendant’s liberty."

A court "may not take account of retribution . . . when imposing a term of supervised release."

"A lifetime of supervised release is . . . to some degree, at odds with the rehabilitative purpose of supervised release, as it presumes that the need for supervision will never end and that the defendant is essentially incorrigible."

"Given the non-violent nature of Brooks’s violations and the difficulty faced by so many offenders in controlling addiction, we conclude that his behavior was not so extreme or unusual as to justify a life term of supervised release."

Section 924(c)(3)'s residual clause held unconstitutionally vague

Sun, 05/06/2018 - 19:52

There are no qualms about it in the Tenth Circuit: 924(c)(3)’s residual clause is unconstitutionally vague. In United States v. Salas, the Tenth Circuit held that section 924(c)(3)(B), which defines a “crime of violence” that may enhance a sentence for a conviction under that section, “possesses the same features as the ACCA’s residual clause and [section] 16(b) that combine to produce more unpredictability and arbitrariness than the Due Process Clause tolerates[.]” As such, the Supreme Court’s holdings in Johnson v. United States invalidating the ACCA’s residual clause, and the Court’s reasoning last month in Sessions v. Dimaya invalidating 18 USC § 16(b)—the criminal code’s general definition of a “crime of violence”—applies equally here. “Vague laws invite arbitrary power,” Justice Gorsuch aptly noted in his concurrence in Dimaya. Through Salas the Tenth Circuit has thus made certain—and on plain-error review at that—that a sentencing court may not rely on section 924(c)(3)’s residual clause to enhance a defendant’s sentence.

So what if you haven't built a fortress---your property may still be protected curtilage

Tue, 05/01/2018 - 18:27
Officers found drugs in a third-party's car parked on the street in front of a resident's driveway. So naturally the officers decided to nose around the area for more drugs, ultimately walking to the back of the resident's driveway, scanning the area with a flashlight, and finding two guns in a bag on a chair. Bad call, said the Seventh Circuit, holding that this warrantless search (which lacked either a warrant or probable cause) violated the Fourth Amendment, and the guns must be suppressed. 
The driveway ran alongside the home and ended 80 feet back from the street in front of a shed that was just a few steps from the home's back door. While the driveway's primary use was for parking cars, the resident occasionally used the driveway area in front of the shed for outdoor events such as barbecues. This area was---like the front porch in Jardines---part of the home's protected curtilage. This was so despite the visibility of the area from the street and the absence of a fence in front of it. As the Seventh Circuit explained, "it is not necessary to turn a residential property into a fortress in order to prevent the police from 'trawling' one's yard . . . unencumbered by the constitution." United States v. Alexander, No. 16-3708 (7th Cir. May 1, 2018).

"A salient truth"

Tue, 04/24/2018 - 20:20
They were standin' on the corner, they didn't mean no harm;Along came the po-lice, took 'em by the arm;It was down in Ohio, there was no cause for blame;The police said "boys, you better tell me your names."
And thus two Whitehall, Ohio city police officers stopped and handcuffed two men because one of the officers found it suspicious that the men were "just standing there."

"At this juncture," wrote S.D. Ohio District Court Judge Algenon Marbley in his order suppressing the fruit of this illegal stop, "the Court is compelled to note a salient truth: [the defendants] are both black."

Why is this a salient truth?

Because "when a white officer approaches a black civilian, racial dynamics might make the civilian feel unusually threatened by the police and . . . race should therefore be relevant in determining whether a reasonable person would feel free to leave a police encounter."

Because "[t]o permit law enforcement officers to detain and search individuals based on their own views of what 'types' of individuals appear, to them, to be 'suspicious' would inevitably and inexorably exacerbate overpolicing of the underprivileged and of communities of color."

Because "[f]or generations, black and brown parents have given their children ‘the talk’—instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger—all out of fear of how an officer with a gun will react to them." 
In case Judge Marbley's message still isn't clear: When it comes to the Fourth Amendment, we need to talk about race.

No traffic law prohibits driving while black

Sun, 04/22/2018 - 21:53

It’s after midnight. An officer spies a car traveling just under the speed limit near a construction zone. The driver is “sitting upright and rigidly in his seat, staring straight ahead.” His hands are on the steering wheel at “ten and two.” All signs of a careful driver, no? 
'Nu-huh' says the officer—that driver is being too careful.
Thus commences what becomes a lengthy pretextual stop for a non-existent traffic infraction followed by an exhaustive fishing-expedition-of-an-investigation—complete with FSTs (passed “with flying colors”), cumulative background checks (nothing), drug dogs (no alert), et al. The investigation eventually leads to a consensual search of the passenger compartment, which reveals numerous debit, credit, and gift cards. The driver is charged with possessing counterfeit or unauthorized access devices. The district court declines to suppress the evidence. 
Enters the Sixth Circuit to handedly reverse
Letting a tire barely touch a lane line does not give rise to probable cause in Ohio. Likewise, mere weaving within a lane does not provide reasonable suspicion of intoxication. A different result in this case, the Court recognized, “would neglect our duty and would allow the police to stop you, demand your identification, check for outstanding warrants, and call for a drug dog—even if you are doing nothing wrong.”
“A driver’s conduct need not be the Platonic ideal of good driving to avoid a stop by a police officer.” That rule transgresses all races, creeds, and nationalities. While the law may allow a pretextual stop based on a minor traffic violation, “no traffic law prohibits driving while black.”
The Sixth Circuit remanded with directions to suppress the illegally-obtained evidence, holding that the protections of the Fourth Amendment do not afford “officers the power to over-police people of color under a broad definition of suspicious behavior.”

CJA applications & revised CJA plan

Tue, 04/17/2018 - 18:04
CJA applications due May 15, 2018
The deadline for submitting applications for the District of Kansas CJA panel is May 15, 2018. Applications for attorneys who are not currently on the panel and reapplications for those nearing the end of their three-year term, are available here. All attorneys whose terms are expiring (and thus need to reapply) have been notified by email. Please share this information with anyone who might be interested in applying for the panel. The new terms begin July 1, 2018 and end on June 30, 2021.

Revised CJA plan   A number of revisions were recently made to the Kansas CJA Plan. Some highlights are below. The Plan, which took effect on March 17, 2018, is here.Pretrial Service Interview. A number of changes will help ensure that counsel is provided as early in the process as practicable. Under the new Plan, the pretrial services officers are to provide counsel notice and a reasonable opportunity to attend the pretrial interview.Membership of CJA Selection Committees.  The term for panel attorneys to serve on the CJA Selection Committee has been set at three years. (The current panel committee members are Michael Shultz (Wichita); Dionne Scherff (KC); and Jason Hoffman (Topeka)).
Removal from the Panel. The new plan provides a process for removal of any attorney from the panel during their three-year term. Cause for removal includes failing to fulfill the requirements of CJA panel membership, including the failure to provide high-quality representation to CJA clients. If removal is considered by the Committee, the panel attorney will be provided notice of the specific allegations and will have an opportunity to respond. This process does not apply to attorneys who have reached the end of their term and are reapplying.Timely Submission of Vouchers.  Under the national rules, vouchers are to be submitted within 45 days of the final disposition of the case. The Kansas Plan acknowledges this but now requires that a Statement of Exceptional Circumstances be uploaded to any voucher that is submitted later than 180 days after the final disposition of the case. The Statement is to set forth the reasons for the late submission.

No certainty? No enhancement!

Sun, 04/15/2018 - 13:45
The Tenth Circuit recently reminded us that, before a court may treat a prior conviction as an ACCA predicate, "we must be 'certain' that the violent-felony moniker 'necessarily' applies." United States v. Degeare, 884 F.3d 1241, 1244 (10th Cir. 2018). How certain? The Court does not say (neither party briefed the issue), but "at least more certain than not" (emphasis the 10th's). Id. at 1248 n.1.

If you have a close case involving a prior conviction under a statute that does not clearly and necessarily qualify as an enhancement predicate, invoke this certainty principle as a reason your client's sentence should not be enhanced.

The new phone book is here!

Thu, 04/12/2018 - 21:17
Well, not quite yet. But the Sentencing Commission has announced its 2018 Sentencing Guideline Amendments. These amendments will go to Congress, and unless specifically rejected, they will go into effect on November 1, 2018.
Not surprisingly a number of the amendments will results in longer sentences for our clients, including a number of fentanyl related enhancements. But one little gem may be helpful for a category of our clients. A new application note to § 5C1.1 recommends no incarceration for defendants who fall in Zones A or B, who have no prior history, and the offense does not involve threats or violence or the possession of a gun. The proposed language reads:
    “If the defendant is a nonviolent first offender and the applicable guideline range is in Zone A or B of the Sentencing Table, the court should consider imposing a sentence other than a sentence of imprisonment, in accordance with subsection (b) or (c)(3). See 28 U.S.C. § 994(j). For purposes of this application note, a “nonviolent first offender” is a defendant who has no prior convictions or other comparable judicial dispositions of any kind and who did not use violence or credible threats of violence or possess a firearm or other dangerous weapon in connection with the offense of conviction. The phrase “comparable judicial dispositions of any kind” includes diversionary or deferred dispositions resulting from a finding or admission of guilt or a plea of nolo contendere and juvenile adjudications.”
Even though these amendments won't go into effect until November, we can argue today that the proposed amendment is evidence of the suggested outcome for these defendants by the sentencing commission. 

Unconscious, handcuffed, and zip-tied

Tue, 04/10/2018 - 12:38
Question: Once officers have subdued a potentially violent suspect by rendering him unconscious with a carotid restraint, handcuffing him, and zip-tying him, is it reasonable for those same officers to revive the suspect, strike him more than ten times, and---as he cries out "Oh God, please help me, please help me"---choke him unconscious again with a second carotid restraint?

Answer: Really? Who even needs to ask this question? Four Hutchinson, Kansas police officers, that's who. The Tenth Circuit set those officers straight this week in McCoy v. Meyers, et al., reversing the district court's grant of qualified immunity in Mr. McCoy's civil-rights suit against the officers, and holding that the officers' post-restraint force violated Mr. McCoy's "clearly established right to be free from continued force after he was effectively subdued."

The government intended what it wrote

Sun, 04/08/2018 - 11:44

“Many good Fourth Amendment stories begin with dogs[,]” writes Judge Thapar of the Sixth Circuit Court of Appeals. “And so it is here.” But the Sixth Circuit's decision in United States v. Perkins this last week does not actually focus on the conduct of a dog who alerted law enforcement to investigate a potential crime. Instead, Perkins poses the question that if courts are to read warrants in a commonsense fashion rather than hypertechnically, how does a court decipher between a common-sense construction of an anticipatory event and an unintended hypertechnicality that a court should overlook? The answer is a simple one according to the Sixth Circuit: “Common sense dictates that the government intended what it wrote.” Where the triggering event for an anticipatory warrant required delivery of a package to a specific person, at a specific place, a common-sense reading of the warrant requires that the package actually be delivered to that person, at that place.

The “replace-some-words canon of construction has never caught on[,]the Sixth Circuit noted, affirming the district court’s grant of the defendant’s motion to suppress.

Excited about that Microsoft Supreme Court case?

Thu, 04/05/2018 - 21:58
Well I have some bad news for you. The fight in the Supreme Court over the government's ability to force domestic companies to turn over user data that is stored abroad appears over (for now). On March 23, 2018 Congress passed, and the President signed the CLOUD Act which, generally, provides a procedure to obtain warrants in cross-border situations.

But how does that resolve a warrant that was issued under the old statute you might ask? Good question. The government withdrew that warrant, and has obtained a new warrant under the CLOUD Act's procedures. Microsoft has consented to the government's request to remand the case.

There may be more litigation related to the original procedure or the procedure now authorized under the CLOUD Act. But the fight before the Supreme Court, for now, looks to be over.

Did you click "next"?

Tue, 04/03/2018 - 16:03
Today the Tenth Circuit reminded us how important it is to complete all steps when filing with the CM/ECF system. In Klein v. Olson, et al., the Court dismissed an appeal for lack of jurisdiction because the appellant failed to click on the "next" button to finish filing the notice of appeal in the district court:
On December 8, 2016, an employee of defendants’ counsel logged onto the district court’s Case Management/Electronic Case Files (CM/ECF) system, uploaded a notice of appeal document, and used a credit card to pay the appellate filing fee. The uploaded notice of appeal document, however, was not docketed because the employee prematurely exited the CM/ECF system before completing the third and final step in the online filing process. The third and final step requires a user to click or press a button in order to submit the uploaded document to be docketed. * * *[C]ontrary to defendants’ arguments, there is no basis to conclude that their notice of appeal was delivered to or received by the clerk of the district court on December 8, 2016. To conclude otherwise would turn the district court’s clear and unequivocal electronic filing rules into mere suggestions, and would effectively allow a pleading to be "filed" without the pleading being docketed and, in turn, without the district court’s clerk or the opposing party knowing about it.

Expungement Day: April 20

Sun, 04/01/2018 - 12:56

Who:         YouWhat:        Expungement DayWhere:      Topeka When:       April 20, 2018
The positive effect that the expungement of a criminal record can have on one’s life, as well as on the lives of one’s family members, and the community as a whole, is tried and tested. Old arrest-records or convictions often become formidable barriers for individuals when seeking employment, higher education, or professional licensing, or when scouring for affordable housing options (for themselves and their families). The removal of an old criminal record can therefore be of pivotal importance to many. 

We have previously blogged about Clean Slate Clearinghouse and its wonderful compendium of state-specific expungement resources, including electronic access to Kansas’s expungement application forms. This month we are fortunate to have The Expungement Day Project (a local, pro-bono service built upon the collaborative efforts of community leaders and organizations) take lead in providing assistance to those of us in the community needing to expunge qualifying arrests, convictions, or diversions. 
This means your help is needed and wanted! The Topeka Bar Association is offering a one-hour CLE on April 11, 2018, for attorney and non-attorney volunteers wanting to assist with Expungement Day on April 20. Goodell, Stratton, Edmonds & Palmer is sponsoring the CLE free-of-charge to all Expungement Day volunteers. 

You can register for the CLE here. (Note: registrations are requested by April 4.) And Expungement Day volunteer shifts are available in the morning (sign up here) and in the afternoon (sign up here) on April 20, 2018. 

We hope to see you there! And a big thank you to all who have made this Day possible.

Fourth Amendment Frolic

Thu, 03/29/2018 - 21:20
For your Friday reading pleasure, a few recent Fourth Amendment wins:

Before officers knew they were patting down a felon, they had no reason to reach into his pocket to retrieve what they thought was ammunition. Items that are neither weapons nor contraband---and ammunition is not contraband unless possessed by a felon---cannot be retrieved during a Terry search. This according to the Eleventh Circuit in United States v. Johnson.

Eleven minutes into a traffic stop, an officer had all the information he needed to issue citations and send the driver and passenger on their way. Instead he dragged his feet, waiting for a drug dog to arrive and only then handing out the citations. After the dog failed to alert, the officer extracted consent to search from the driver. Did the officer unreasonably extend the stop? He did, said the Seventh Circuit in United States v. Rodriguez-Escalera, affirming the district court's suppression order.

Probable cause that a person is a drug trafficker is not enough for a search warrant to search that person's home. So said the District Court for the Southern District of Indiana in United States v. Zamudio, rejecting the government's argument that "drugs are likely to be found where drug dealers live," and refusing to excuse the search on good-faith grounds.

Federal conspiracy to commit murder in aid of racketeering held not categorically a crime of violence

Sun, 03/25/2018 - 20:32
Under the Guidelines, we know that the base offense level for a felon-in-possession conviction increases where the defendant has at least one prior felony conviction of a crime of violence. And we also know from the Guideline’s commentary that a crime of violence (as set forth in §4B1.2(a)) includes the offenses of aiding and abetting, conspiring, and attempting to commit such offenses. 

The Fourth Circuit reminded us this past week in United States v. McCollum, that when evaluating a client’s prior conviction for an undefined, enumerated inchoate offense, two sets of elements are at issue for determining whether the conviction falls under §4B1.2(a)’s umbrella: the elements of the inchoate crime, as well as the elements of the underlying offense. 

In McCollum, the defendant argued that the court erred by enhancing his base offense level for a § 922(g) conviction upon a finding that his prior conviction for federal conspiracy to commit murder in aid of racketeering constituted a crime of violence. Specifically, the defendant argued that by applying the categorical approach to his prior federal conviction as the Supreme Court has instructed courts to do, the sentencing court was required to look at the “generic, contemporary meaning” of the inchoate offense, as well as the underlying offense, to ensure that the elements of his crime of conviction are no broader than those of the generic federal statute. And while conceding that the underlying offense would qualify as a crime of violence, he argued that the inchoate crime did not.
The Fourth Circuit agreed. Citing authority from the Ninth and Tenth Circuits, the McCollum court recognized that the generic federal conspiracy statute required an overt act as an element of the offense. But because conspiracy to commit murder in aid of racketeering (§ 1959(a)(5)) does not require an overt act, it criminalizes a broader range of conduct than that covered by generic conspiracy. The Fourth Circuit thus vacated the defendant’s sentence and remanded for resentencing, concluding that a prior federal conviction for conspiracy to commit murder in aid of racketeering does not qualify categorically as a crime of violence to support an enhanced sentence.  

Brady's mandate still needs enforcing half a century later

Tue, 03/20/2018 - 21:15
It is well-settled under Brady v. Marylandthat a defendant may obtain a new trial where he establishes that evidence suppressed by the government (including all those acting on the government’s behalf) was favorable and material to either his guilt or punishment.
The Seventh Circuit’s decision this week in United States v. Ballard, succinctly enforced Brady’s mandate.
In Ballard, the defendant had been convicted of bank fraud after a jury credited a bank loan officer’s testimony and rejected the defendant’s “good faith” defense that the loan officer and his superiors not only knew, but also authorized and pressured him to carry out the unlawful acts. Later, the defense moved for a new trial when it learned of a recording from a prior, distinct government investigation (involving the same prosecutor and investigator) in which the loan officer admits to wrongdoing.
The Seventh Circuit affirmed the district court’s grant of a new trial based on findings that the suppressed recording was both favorable and material to the defendant’s case. The Ballard court agreed that the recording provided “ample fodder for impeaching [the loan officer’s] credibility” as it was probative of his character for truthfulness. And, because he was never prosecuted, it the jury could have inferred that the loan officer was biased in favor of the prosecution. Had the government "played by the rules" and allowed the defense to cross-examine the loan officer about his credibility, and had the jury found him incredible, the Seventh Circuit concluded “it is not a stretch to see the verdict could have been different.” Make no mistake, Brady still (over a half century later) does not tolerate a conviction where withheld evidence that was favorable to the defendant undermines confidence in the jury’s verdict. And as Ballard demonstrates, confidence in a verdict may be undermined by the suppression of one recording relevant to the credibility of just one of 13 witnesses who testifies at trial. 

Supreme Court to examine SORNA's application to pre-SORNA offenders---under the nondelegation doctrine

Sun, 03/18/2018 - 11:25
Do you have a client charged with a SORNA offense? Did that client's registration-triggering conviction predate SORNA? If so, you might be tempted to argue that ex post facto principles prohibit any conviction under SORNA. And we hope that you win that argument. But there may be a better argument---one that the Supreme Court will be considering next term: Whether Congress violated the nondelegation doctrine when it left it to the attorney general to decide whether to apply SORNA retroactively.

This is the question that the Supreme Court has decided to answer in Gundy v. United States:
Whether the federal Sex Offender Registration and Notification Act’s delegation of authority to the attorney general to issue regulations under 42 U.S.C. § 16913 violates the nondelegation doctrine.With the cert grant in Gundy, it's important to preserve this issue. But don't assume it's a dead-bang winner. The last time the High Court relied on the nondelegation doctrine to strike a federal law was in 1935.

Carrying a gun near (somebody's) drugs not enough for sentencing enhancement

Mon, 03/12/2018 - 19:33
If we know anything by now, it's that guns + drugs = a higher sentence, right?

Not always. Case in point: United States v. Ferrell.

Defendant Ferrell pleaded guilty to being a felon in possession of a firearm. State parole officers had been looking to serve a warrant on Mr. Ferrell when they saw him go into a garage while carrying a gun, near an area of the garage where drugs were later found. On not much more than this evidence, the district court gave Mr. Ferrell a four-level sentencing enhancement under USSG § 2K2.1(b)(6)(B) (possessing a firearm in connection with another felony offense, in this case drug possession).

In a very fact-intensive opinion, the Tenth Circuit reversed. The Court held that carrying a gun in proximity to drugs absent sufficient evidence that the defendant possessed the drugs was not enough to support the enhancement.

Know what elements are necessary for every enhancement. Challenge those elements. You just might win.