There were so many significant and interesting stories this week, it’s hard to decide where to begin. But I’ve settled on this USA Today story about federal inmates serving sentences for possession of a firearm by a felon. The problem? The inmates aren’t really felons, at least not under current federal law. Here’s the short version of the story: 18 U.S.C. § 922 prohibits gun possession by people “who [have] been convicted in any court of a crime punishable by imprisonment for a term exceeding one year.” But what’s a crime “punishable by imprisonment for a term exceeding one year”? Consider a Class H felony like PWISD cocaine. Prior to the Justice Reinvestment Act, the presumptive range of minimum sentences for a defendant with prior record level VI was 16-20 months, with corresponding maximums between 20-24 months. The aggravated range, of course, was even higher. But for a defendant with prior record level II, the presumptive range of minimum sentences was 6-8 months, and the corresponding maximums were between 8-10 months. The federal courts used to figure that an offense was “punishable by imprisonment for a term exceeding one year” if any defendant convicted of that crime could receive more than 12 months in prison – that is, if the top of the aggravated range for prior record level VI was more than 12 months. So PWISD cocaine qualified. But in United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc), the Fourth Circuit ruled that an offense was [...]
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