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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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  1. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  2. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  3. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  4. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

  5. Seventh Circuit Court Judge Diane Wood has stated in “The Rule of Law in Times of Stress” (2003), “that neither laws nor the procedures used to create or implement them should be secret; and . . . the laws must not be arbitrary.” According to the American Bar Association, Wood’s quote drives home this point: The rule of law also requires that people can expect predictable results from the legal system; this is what Judge Wood implies when she says that “the laws must not be arbitrary.” Predictable results mean that people who act in the same way can expect the law to treat them in the same way. If similar actions do not produce similar legal outcomes, people cannot use the law to guide their actions, and a “rule of law” does not exist.

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