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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. 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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