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7th Circuit: conviction can't enhance sentence

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A defendant's conviction of possession of a firearm by a felon stands because police had reasonable suspicion to stop the car he was riding in, the 7th Circuit Court of Appeals concluded today. However, the District Court erred when it enhanced his sentence under the Armed Career Criminal Act because his past criminal recklessness conviction isn't considered a violent felony.

In United States of America v. Anthony Hampton, No. 07-3134, Anthony Hampton appealed his conviction and 387-month sentence for his role in a shooting around a Subway restaurant in Indianapolis.

Multiple people called 911 to report hearing gun shots and seeing two men near the restaurant. Anthony Smith told dispatchers that the person later identified as Hampton was holding a gun and he got into a white SUV with Ohio license plates. Smith later testified he recognized Hampton from the neighborhood, but he didn't tell dispatchers that. Police pulled over the white Jeep Commander and found two guns inside, and arrested Hampton and Justin Gray.

The District Court denied Hampton's motion to suppress the chrome revolver recovered in the car, which he was charged with possessing. The District Court also enhanced his sentenced under the ACCA.

The Circuit Court determined police had reasonable suspicion to stop the SUV. Hampton argued that the 911 operators established the reasonable suspicion and that they should have determined Smith had a conviction for falsely reporting a shooting. Police faced an ongoing emergency when responding to Smith's call, and he was presumably more reliable than an anonymous tipster, wrote Judge Ann Claire Williams. He provided enough information for officers to test his knowledge or credibility so as to justify the stop of the SUV.

The Circuit Court rejected his argument that the dispatchers established reasonable suspicion because they received multiple calls about the incident, which they relayed to police, who used that information to determine they had reasonable suspicion, she wrote. In addition, emergency dispatchers are in no position to conduct background checks while gathering information about a crime in progress.

There was also sufficient evidence to determine Hampton had active or constructive possession of the chrome gun. Callers reported to 911 dispatchers that they saw Hampton holding a gun, and one caller testified he saw Hampton put a gun in his waistband before getting into the SUV. It doesn't matter that the other gun recovered was a black gun and witnesses were inconsistent as to whether he had the black or chrome gun in his hand, she wrote.

Hampton challenged that his previous conviction of residential entry wasn't a violent felony for purposes of the ACCA. Using Begay v. United States, 128 S. Ct. 1581 (2008), the Circuit judges ruled residential entry can be considered a violent felony. But, one of Hampton's other prior convictions used to enhance his sentence wouldn't be considered a violent felony - criminal recklessness. The state argued Hampton waived this argument, but the cases determined after he was sentenced have held criminal recklessness wouldn't qualify for the enhancement.

"In light of Begay and its progeny, the district court committed plain error when it enhanced Hampton's sentence based on the determination that criminal recklessness in Indiana constituted a violent felony under the ACCA," she wrote.

Without the criminal reckless conviction, Hampton doesn't have the three required prior violent felony convictions to enhance his sentence. The Circuit judges remanded for re-sentencing.

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  1. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  2. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  3. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

  4. Why in the world would someone need a person to correct a transcript when a realtime court reporter could provide them with a transcript (rough draft) immediately?

  5. This article proved very enlightening. Right ahead of sitting the LSAT for the first time, I felt a sense of relief that a score of 141 was admitted to an Indiana Law School and did well under unique circumstances. While my GPA is currently 3.91 I fear standardized testing and hope that I too will get a good enough grade for acceptance here at home. Thanks so much for this informative post.

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