Thursday, March 29, 2018

Gun possessed 3 months earlier NOT relevant conduct of later gun possession




United States v. Amerson

In May, 2016, Defendant Amerson got into an argument and was shot.  During the investigation, officers found a firearm in Amerson's friends vehicle.  Amerson's DNA was on that firearm.  In late August, 2016, Amerson's apartment was searched, and another firearm was found.  Amerson was prosecuted under 18 U.S.C.  § 922 for the firearm found in August.  At sentencing, the court increased the sentence under USSG § 2K2.1(b) for the May 2016 firearm.  This increased his sentencing range from 57-71 months to 70-87 months.  Amerson received a sentence of 76 months.

On appeal, Amerson argued that any possession of firearms in May was not part of the same "common scheme or plan" as the August possession.  And the Court agreed.  The Court found that, in order to meet the common scheme or plan standard, the Government was required to prove "similarity of the offenses, the regularity (repetitions) of the offenses, and the time interval between the offenses."  Here, the Court noted that the Government had not proved regularity - proving that the conduct occurred on two occasions was not enough - as every relevant conduct argument involves at least two occasions.  Second, the Court held that there was little similarity between the possessions.  Finally, the Court held that "while the government showed some evidence of temporal proximity, a several-month gap between illegal possessions is not strong enough timing evidence to overcome a complete lack of regularity and prove that the possessions were part of the same course of conduct."    The Court therefore remanded for resentencing. 

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