FIRM WINS FOURTH CIRCUIT APPEAL CHALLENGING APPLICATION OF THE ARMED CAREER CRIMINAL ACT
The U.S. Court of Appeals for the Fourth Circuit issued its opinion today in U.S. v. Kerr, No. 10-4557, vacating a 268 month sentence that was imposed after a jury convicted the defendant on one count of possession of a firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). The appeal was handled by Dhamian Blue and Jenna Turner Blue of Blue Stephens & Fellers LLP.
On appeal, BSF attorneys argued that the defendant should not have been sentenced as an “armed career criminal” under the Armed Career Criminal Act (the “Act”) because the convictions upon which the Government relied to trigger the Act were insufficient for enhancement purposes. The Act mandates a fifteen year minimum sentence for a defendant who has been convicted of being a felon-in-possession of a firearm if he has been convicted of at least three “serious drug offenses” or “violent felonies.” A “violent felony” is one that is “punishable by imprisonment for a term exceeding one year.” Because the defendant’s predicate offenses were not violent felonies, application of the Act was improper.
At the time of our client's sentencing hearing, his argument was foreclosed by the Fourth Circuit’s decision in U.S. v. Harp, 406 F.3d 242 (4th Cir. 2005). The Fourth Circuit subsequently overruled itself, however, in U.S. v. Simmons, No. 08-4475 (4th Cir. Aug. 17, 2011), a case that we blogged about here.
In light of the arguments both preserved and raised in the appeal, along with the Court’s recent ruling in Simmons, our client’s case has been remanded to the Middle District of North Carolina for a new sentencing hearing.
Blue Stephens & Fellers LLP was founded in 1976 and is based in Raleigh, North Carolina. We have an active federal criminal defense practice that includes representation in the trial and appellate courts. If you have a federal criminal defense problem and would like to discuss your options, contact us right away. In the meantime, please visit our Federal Criminal Defense Blog to learn more about the federal criminal justice system.