A Bridge Too Far: Court Limits Scope of First Step Act in Felon-in-Possession Case


Early one morning, Joey Wiseman woke to the sound of someone attempting to break into his apartment.  Using his video surveillance system, Wiseman discovered that the individual was armed with a handgun  Wiseman, who was armed himself, encountered the assailant, knocked the gun out of his hand, and then shot him.  With his would-be robber bleeding on his living room floor, Wiseman, who was a convicted felon, faced a difficult choice: should he first call 9-1-1 or hide both the gun and the multiple grams of cocaine that were in his apartment?  He chose the later.  After hiding the cocaine and gun in a safe in his car, Wiseman called 9-1-1.  In a subsequent interview, however, Wiseman admitted to the police that he hid the handgun and cocaine in his car, and the police subsequently seized both items after obtaining a search warrant.

A federal grand jury subsequently indicted Wiseman for two counts of possession with intent to distribute cocaine and one count of being a felon in possession of a firearm and ammunition.  In addition, the Government filed an 851 notice that Wiseman had prior felony drug convictions it would rely upon in enhancing his maximum sentence from twenty to thirty years pursuant to 21 U.S.C. §§ 841(b)(1)(C).

A jury subsequently convicted Wiseman of all three counts.  The District Court, after finding that he was a career offender, sentenced Wiseman to 262 months imprisonment.

On appeal, Wiseman turned to the First Step Act as a basis for many of his arguments. First he challenged the enhancement of his sentence, arguing that he was not eligible for the sentencing enhancement under 21 U.S.C. §§ 841(b)(1)(C) and 851(a) because he had not committed any "serious drug felonies" as defined under the First Step Act.  He also argued that the District Court erred in denying his request for a justification instruction and in overruling his objection to testimony during his trial from a special agent that he had received "a call from Adult Parole Authority."  Finally,  citing the First Step Act, Wiseman argued the District Court erred in finding he was a career offender under the Guidelines because he had served less than a year imprisonment on each of his supposedly qualifying charges.

In its decision in United States v. Wiseman, the Court rejected all of Wiseman's arguments and affirmed both his conviction and sentence.  First, the Court held that the First Step Act, which became effective after his conviction, was not retroactive, and, even if it was, it did not alter the language for qualifying convictions under 21 U.S.C. § 841(b)(1)(C).

The Court also concluded that the District Court properly rejected Wiseman's request for a justification instruction.  Wiseman, the Court noted, failed to show that he was justified in possessing the firearm because he possessed it long before he saw the would-be robber enter his home.  In addition, the Court noted that Wiseman continued possessing the gun after the danger had passed by placing the weapon in a safe before the police arrived.

The Court similarly rejected Wiseman's challenge to the admission of the special agent's testimony implying that he was on parole status.  The jury, the Court concluded, was already well aware that Wiseman had a prior felony conviction because he had been charged under 18 U.S.C. § 922(g)(1) and because he had stipulated prior to trial that he had felony convictions.  The Court thus held that any error was harmless.

 Finally, in challenging the District Court's finding that he was a career offender, Wiseman argued that the District Court should have considered the definition of a "serious drug felony" under the First Step Act in its analysis.  The Court disagreed and noted that the Act did not alter the definition of offenses that qualify for career offender status under the Guidelines.

Less than a year into its implementation, courts are still addressing the scope of the First Step Act. We will no doubt continue to see cases like this one addressing creative arguments under the Act.

  







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