7th Circuit: Machine gun possession not violent crime

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A man’s conviction on federal firearm charges was vacated Tuesday when the 7th Circuit Court of Appeals ruled that possession of machine guns was not violent crime, citing a case earlier this year that applied the same rationale to possession of sawed-off shotguns.

The appellate panel vacated the mandatory minimum 15-year sentence imposed on Michael L. Brock by Judge Larry J. McKinney of the U.S. District Court for the Southern District of Indiana. The judges remanded the case for resentencing after Brock was convicted of violating the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1).

“In United States v. Upton, 512 F.3d 394 (7th Cir. 2008), we held that unlawful possession of a sawed-off shotgun counted as a violent felony under ACCA. Applying Upton, the District Court ruled that possessing a machine gun was also a violent felony and that Mr. Brock’s three separate convictions for possessing machine guns triggered ACCA,” Judge David Hamilton wrote for the court in United States of America v. Michael L. Brock, 11-3473.

“Although the district court properly applied controlling circuit law, we have recently overruled Upton on this point, holding now that unlawful possession of a sawed-off shotgun no longer counts as a violent felony,” the court opined, citing United States v. Miller, ___ F.3d ___ (7th Cir. 2013). “The reasoning of Miller applies equally to unlawful possession of a machine gun, so we vacate Mr. Brock’s sentence and remand for sentencing.”

The court noted that ACCA requires use of explosives to qualify as a violent felony, and the Miller ruling brings consistency to the range of weapons covered by the act. “(A)s dangerous as all these weapons can be, we see no principled basis for distinguishing between sawed-off shotguns and machine guns in terms of whether mere possession is a violent felony under ACCA. We must therefore vacate Mr. Brock’s sentence. He is entitled to be resentenced without being subject to the enhanced penalties of ACCA,” Hamilton wrote.

On a separate argument, the 7th Circuit ruled that Brock’s wife’s testimony against him did not violate the spousal testimonial privilege because she testified at his pretrial detention hearing.

 “Given the importance of the spousal testimonial privilege, it would also be entirely appropriate and often prudent for the court, even in the absence of an objection, to make sure that the testifying spouse understands that she cannot be required to testify against her spouse, especially if she does not have her own counsel,” Hamilton cautioned. In this case, Brock lacked standing because his wife waived the privilege, the court ruled.



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