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Federal Weapons Convictions Decline, Sentencing Enhancements Remain Consistent
According to the Transactional Records Access Clearinghouse (TRAC), federal weapons convictions declined 5.8 percent in Fiscal Year 2015 from the previous fiscal year. In 2014, the U.S. Justice Department secured 6,373 weapons convictions, but the number of convictions declined in 2015 to 6,002.
TRAC data shows that federal gun convictions have been on the decline since they peaked in 2005 at 9,206. The 2005 mark was a 51.6 percent rise from the 1995 low of 3,958 convictions.
Not surprisingly, the Bureau of Alcohol, Tobacco, Firearms and Explosives was the lead investigative agency and accounted for 69.1 percent of the weapons convictions obtained in 2015. The FBI and state/local law enforcement agencies accounted for 16 percent of the convictions while Homeland Security, Customs Enforcement, and the DEA accounted for the rest.
Convictions Numbers Do Not Include Sentencing Enhancements for Guns
While down, federal weapons convictions data does not include the penalty enhancements defendants received under the U.S. Sentencing Guidelines when a weapon is involved in violent or drug trafficking criminal activity, which have remained fairly consistent .
Federal Sentencing Guideline Enhancements
U.S.S.G. 2D1.1 (b) (1) provides a two-level enhancement of a defendant’s offense level if “a dangerous weapon (including a firearm) was possessed” in relation to his or her criminal activity. The enhancement applies “if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense.”
The Fifth Circuit Court of Appeals has made it relatively easy for a sentencing judge to apply this enhancement when a weapon is connected to the charged criminal activity.
In 2010, the appeals court ruled that the government need only prove by a preponderance of the evidence that a weapon was connected to the charged criminal activity. If that burden is met, the defendant must then show that it is “clearly improbable that the weapon was connected” to the charged criminal activity.
Burden of Proof Easy on Government, Shifts to Defendant
In order to meet its burden, the government need only establish that a defendant personally possessed a weapon “by showing a temporal and spatial relationship of the weapon, the drug activity, and the defendant.”
But what happens when there is criminal activity, two or more defendants, and one weapon?
There are two rules of law here. First, when there is more than one defendant in a criminal activity to which a weapon is connected, the government need only show that any one of the defendants could have “foreseen” the possession of the weapon. Second, all defendants involved in a “jointly undertaken criminal activity” are responsible for “all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity.”
Thus, under the U.S. Sentencing Guidelines and established Fifth Circuit authority, a federal sentencing judge may infer foreseeability from a co-conspirator’s possession of a weapon.
Judge Must Make Factual Findings When Multiple Defendants
On October 30, 2015, the Fifth Circuit reinforced its 2010 rule that a sentencing judge must make detailed factual findings in cases involving multiple defendants and a weapon before the judge can apply the § 2D1.1(b)(1) enhancement.
In its October 30 decision, United States v. Rodriquez-Guerrero, the Fifth Circuit upheld the sentencing judge’s application of § 2D1.1 (b) (1) because the judge made these detailed factual findings:
“First, it is undisputed that the house where the shotgun was found was a stash house used to package and transport bundles of marijuana. It was a drug warehouse, not someone’s residence in which drugs were also stored. Second, bundles of marijuana were found in the master bedroom, making it plausible to find that either [the defendant] or another conspirator accessed the bedroom where the shotgun was found. Third, the amount of ammunition suggests that the weapon belonged to the defendant or his coconspirators in connection with the drug trade. Fourth, the shotgun was found on the same day that law enforcement observed [the defendant] and his coconspirators at the house.”
So while technically not a “weapons conviction,” Rodriquez-Guerrero’s drug conviction and sentence were enhanced because a weapon was involved. Whether or not Rodriguez-Guerrero owned the shotgun found in the drug warehouse is not important in the federal sentencing scheme. The only important thing is whether that weapon was involved in the criminal activity he was a part of.
Federal Prison Population Increases Significantly
In a 2011 report to Congress, the U.S. Sentencing Commission told federal lawmakers: “Statutes carrying mandatory minimum penalties have increased in number, apply to more offense conduct, require longer terms, and are used more often than they were 20 years ago. These changes have occurred amid other systemic changes to the federal criminal justice system, including expanded federalization of criminal law, increased size and changes in the composition of the federal criminal docket, high rates of imposition of sentences of imprisonment, and increasing average sentence lengths. The changes to mandatory minimum penalties and these co-occurring systemic changes have combined to increase the federal prison population significantly.”
Congressman Opposes Sentencing Reform
On November 2, 2015, Bob Goodlatte (R-Va,), Chairman of the House Judiciary Committee, launched a broadside attack on the U.S. Sentencing Commission for its efforts to bring some rationality in the federal sentencing scheme. Goodlatte was particularly incensed by a 2014 amendment by the Sentencing Commission that resulted in the recent release of 6,000 low-level drug offenders from the federal prison system, arguing that is new guidelines failed to consider criminal histories of inmates and set violent criminal free.
In reality few, if any, of these drug offenders had serious violent criminal histories or possessed a weapons in their criminal activity. Goodlatte’s unfounded fear mongering and get tough on crime politics is precisely what got us to the current prison problem. Goodlatte, and his tough on crime cohorts, supported the imposition of harsh mandatory minimums and sentencing guidelines that led to the prison over-population problem. In meddling with the sentencing judge’s discretion to assess a proper punishment, these harsh sentencing policies created the largest federal prison population in history, much to the delight of the private prison lobby.
Sentencing Guidelines Are the Problem
So while weapons convictions have declined in recent years, federal judges will continue to apply the enhancement for violent or drug offenders when a weapon is directly or indirectly connected to their charged criminal activity. Although federal judges now have discretion as to the final sentence, the Guidelines create an unreasonable “suggested” sentencing starting point that often makes an unreasonable final sentence.
As criminal defense attorneys we often see unreasonably harsh sentencing guideline calculations and enhancements and argue against their application. Unfortunately, sentencing judges often concur with the initial guideline calculations as presenting. This leaves it in the hands of persuasive sentencing arguments from the defense to create reasons for a downward variance for which the judge can rely. Therefore, it is vitally important that all lawyers representing defendants in federal courts to prepare thoroughly for sentencing and craft persuasive arguments for leniency based on the personal histories and positive, unique characteristics of the defendant.
Take the first step toward protecting your freedom by contacting us now
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It was a pleasure speaking with John. He is knowledgeable and has a true desire to help the people of society. I turned to him for some guidance of a long-standing issue. He never … More rushed our conversation and went out of his way to look into the details to provide the right answer as well as assist me anyway he could. Thank you for our conversations and I wish your and your firm the best. If you need a lawyer, John Floyd is your guy!
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He took time out of his day to answer my legal questions and didn’t even charge me. I would definitely recommend him to you.
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Gave free consultation on getting gun rights back. He truly cares about gun rights and getting you the help you deserve. 100% worth a callPositive
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Mr. Floyd took the time to explain his experience with the law to me in layman's terms. Definitely give him a call.Positive
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He was honest , knowledgeable , and professional about what we talked about. Most lawyers are just about the money , but not john.Positive
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I would highly recommend Mr Floyd. He was very helpful and knowledge with a legal question I had.Positive
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He explained my case better then any other lawyerPositive
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Had the pleasure speaking with John Floyd on a personal matter, he was very responsive, nothing but exceptional, and he really cares about you with sincerity and most importantly knows … More what is he talking about! No games or bs, his approach to my situation even though I knew it was probably way smaller then what he normally takes on, he was extremely helpful and didn't care about the size of the matter like other attorneys do. He really looked out for my best interests. You can tell he has decades of experience doing what he does just by chatting with him. I would highly recommend him.
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Words can’t describe how grateful I am for working with John, he went above and beyond my expectation. I was wrongly accused and hired many lawyers before hiring John Floyd but they … More all disappointed me, I had lost hope until a friend of mine referred me to John. From the start he had my best interest in mind and gave helpful advice, he explained the process and guided me. He put more work and time than all my previous lawyers that cost me thousands of dollars. He was constantly communicating with court and defended me more than all lawyer i had hired before him. Don’t waste your time and money like I did, believe me when I say I hired countless lawyers before him and no one came close to John. I’m forever thankful for him for fighting for my innocence and getting my case dismissed. Thank you so much🙏🏼🙏🏼
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I called Mr Floyd and left a message, with in the hour I received a call back with much more information then I could have ever expected. Mr Floyd was very informative on every question … More I had for him. He seemed like he cared, instead of like most attorneys that you talk to that are just out for a quick buck. If you want someone that is going to shoot strait with you, and has your best interest in hand, this is you guy. This was the best experience that I have ever had with an lawyer.
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I can state with confidence that Mr. Floyd and his team are the most competent and professional lawyers one can hope for. My case was quite complex and I admit that as a law student … More I was not the most patient client. Mr. Floyd did a phenomenal job of managing the bench, prosecution and myself! The result was above expectation, and I will never hesitate to recommend this firm regardless of the caliber of the case at issue.
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It was a pleasure working with Mr. Floyd. I contacted him regarding a legal matter and he was extremely knowledgeable about the law, and responded in a timely manner. I appreciated … More the fact I did not feel rushed, and he made sure he thoroughly answered all questions I had. I would highly recommend him!Positive
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Spoke with John Floyd about a 45 year old criminal case I was involved in. I had very little information about the case and John helped me search what records were available and gave … More me guidance to find more information. He was very professional and took his time helping me. I may need to hire a lawyer on this case and Mr. Floyd will be the man.Thanks John.
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I called about some legal questions I needed to get clarified and John was able to give me clarification and sound advice. I will definitely contact John for all future legal questions … More and issues.Thank you John!Positive
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Knows his stuff and well respected with DA and judges. I have referred him a couple times and every client has been satisfied
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John is beyond knowledgeable! If I decide to pursue my case any further I would only have him represent me.
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What a great attorney, this guy really took time out of his day to answer my questions and explain my case to me. Very grateful, thank you so muchPositive
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Absolutely a very professional lawyer. Very well read in the current law and more than willing to help if needed.
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Mr. John he’s a professional he knows what he’s doing and he’s patient they recommend Him stronglyPositive
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Great service, very knowledgable and happy to help with any questions I had
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Quick to action and helpful and knowledgeable with entertainment industry based issues!
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Responded on a holiday week. Very knowledgeable and reassuring.
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Very professional
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I want to thank John T. Floyd and all of his team. He is the best lawyer who cares aboutHis clients and fights really hard to get the best outcome. He is a fighter and he is awesome!!!I … More recommend if any one needs criminal defense , he is the BEST. We had a really serious caseAnd we are very thankful for the outcome. Thank you John!!!!! God bless you!!!!!!
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The attorneys at John T. Floyd Law Firm work diligently to achieve the best possible results for their clients. They are caring and knowledgeable professionals. Their expertise in the … More law and their experience as trial attorneys makes them the right choice as a defense attorney. I recommend this law firm highly.
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From beginning to end this firm handled my case like the top tier professionals they are. I would not trust ANYONE else with my legal needs after having less than stellar experiences … More with other teams. Thank you Floyd!!!
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I really felt like the team cared about my case and am super satisfied with the outcome. Would not recommend anyone else!
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These guys do amazing work and have phenomenal service! Hands down best in the Houston area!!
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John and Chris are true professionals! Love those guys like family!
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Mr. Floyd and his team are very knowledgeable, informative, and helpful.
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A team you can depend on to stand up and fight for you to prove the truth the whole truth!
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Mr. John T. Floyd represented me.I couldn't be happier with the outcome he managed to achieve on an VERY Important case that was dismissed the day of Trial. He is patient & … More very knowledgeable of the legal system. I HIGHLY recommend him to anyone in need of a lawyer!John, I am forever grateful & satisfied with the effort you put forth & all you did for me. Thank you isn't enough!God bless you & your family!
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The John T. Floyd Law Firm assisted me, and I can tell you that the attorney took the time to answer my questions, and I didn't feel rushed or dismissed as I have experienced in … More the past with attorneys. The attorney was very nice and extremely knowledgeable. Initial impressions and continued excellent customer service are big factors for me and as such I would highly recommend this firm.
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I thank you for your efforts to help Felons regain their Civil rights, and for the information on possession , I am A convicted Felon, no violent history. I am an expert shot, I am … More 76 yoa, and very concerned about the present lake of Security in our State and Country. God Bless and Prosper you in your efforts, Your friend, Sonny Bivens
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I really appreciated both Chris and John helping with my legal questions and concerns. Both are good guys and I would not hesitate to recommend them.
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Extremely helpful!!! Helping me understand the law.
John T. Floyd is Board Certified in Criminal Law By the Texas Board of Legal Specialization
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