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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. "So we broke with England for the right to "off" our preborn progeny at will, and allow the processing plant doing the dirty deeds (dirt cheap) to profit on the marketing of those "products of conception." I was completely maleducated on our nation's founding, it would seem. (But I know the ACLU is hard at work to remedy that, too.)" Well, you know, we're just following in the footsteps of our founders who raped women, raped slaves, raped children, maimed immigrants, sold children, stole property, broke promises, broke apart families, killed natives... You know, good God fearing down home Christian folk! :/

  2. Who gives a rats behind about all the fluffy ranking nonsense. What students having to pay off debt need to know is that all schools aren't created equal and students from many schools don't have a snowball's chance of getting a decent paying job straight out of law school. Their lowly ranked lawschool won't tell them that though. When schools start honestly (accurately) reporting *those numbers, things will get interesting real quick, and the looks on student's faces will be priceless!

  3. Whilst it may be true that Judges and Justices enjoy such freedom of time and effort, it certainly does not hold true for the average working person. To say that one must 1) take a day or a half day off work every 3 months, 2) gather a list of information including recent photographs, and 3) set up a time that is convenient for the local sheriff or other such office to complete the registry is more than a bit near-sighted. This may be procedural, and hence, in the near-sighted minds of the court, not 'punishment,' but it is in fact 'punishment.' The local sheriffs probably feel a little punished too by the overwork. Registries serve to punish the offender whilst simultaneously providing the public at large with a false sense of security. The false sense of security is dangerous to the public who may not exercise due diligence by thinking there are no offenders in their locale. In fact, the registry only informs them of those who have been convicted.

  4. Unfortunately, the court doesn't understand the difference between ebidta and adjusted ebidta as they clearly got the ruling wrong based on their misunderstanding

  5. A common refrain in the comments on this website comes from people who cannot locate attorneys willing put justice over retainers. At the same time the judiciary threatens to make pro bono work mandatory, seemingly noting the same concern. But what happens to attorneys who have the chumptzah to threatened the legal status quo in Indiana? Ask Gary Welch, ask Paul Ogden, ask me. Speak truth to power, suffer horrendously accordingly. No wonder Hoosier attorneys who want to keep in good graces merely chase the dollars ... the powers that be have no concerns as to those who are ever for sale to the highest bidder ... for those even willing to compromise for $$$ never allow either justice or constitutionality to cause them to stand up to injustice or unconstitutionality. And the bad apples in the Hoosier barrel, like this one, just keep rotting.

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