New York Federal Criminal Practice Blog
August 13, 2008

EDNY Judge Weinstein Rejects Strict Liability Guideline Enhancement in Gun Possession Case Predicated on Guideline Commentary

The devil is in the details, and, when it comes to the Sentencing Guidelines, that often means in the guideline commentary.  In an important and lengthy new opinion, United States v. Handy, 07-cr-906 (JBW), 2008 WL 2965816 (E.D.N.Y. August 4, 2008), EDNY Judge Weinstein invalidated a guideline enhancement based on guideline commentary that he found to be unconstitutional, contrary to congressional mandate and irrational.  Although the same enhancement – a two-point strict liability enhancement in gun possession cases if the gun involved was stolen – had been upheld by the Second Circuit pre-Booker, the Handy court points out that the recent “sea change” in sentencing jurisprudence demanded that that precedent be reconsidered. 

While Handy deals with the gun possession guidelines, it has broader ramifications both for any guideline enhancement dictated by guideline commentary that fails to represent the Sentencing Commission’s traditional considered, statistical and rational analysis, and for guidelines that permit enhancements without scienter.  As Judge Weinstein observes, “[t]o add many months of incarceration for possession of a gun because the gun was stolen, when the defendant did not and could not know it was stolen, is to punish by lottery. Haphazard chance is not a guiding spirit of our rule of law.”


Twenty year-old Handy pled guilty to being a felon in possession of a gun, in violation of 18 U.S.C. § 922(g)(1).  His presentence report contained a two-point enhancement because the gun was stolen, under U.S.S.G. § 2K2.1(b)(4), an enhancement that applies, according to the guideline’s commentary, “regardless of whether the defendant knew or had reason to believe the firearm was stolen.”  At sentencing, defense counsel challenged the enhancement, citing “the recent revolution in sentencing,” arguing that the enhancement was an “ill-considered” provision, since it contradicted congressional intent (Congress had already criminalized possession of stolen firearm in a separate statute, with an unambiguous scienter requirement) and “ignored hundreds of years of common law . . . that knowledge and intent are . . . the touchstones of criminal liability.”  Questioned under oath at the sentencing, the defendant stated he did not know the gun was stolen. 


Agreeing with defense counsel, Judge Weinstein held that the stolen gun enhancement, “devoid of any mens rea connection, is irrational, is inconsistent with the Constitution and criminal laws of the United States, and is void.”  Noting the historical and constitutional importance of mens rea in criminal statutes, including firearms possession statutes, he gave several reasons for the invalidity of the provision.  First, the Sentencing Commission cannot ignore the congressional policy and constitutional implications behind a related, unambiguous statute criminalizing knowing possession of a stolen firearm.  Second, research shows that guns are often not in fact stolen, they are simply reported stolen by a gun dealer seeking to avoid liability for selling to an ineligible person.  Third, the Commission’s inclusion of and edits to the stolen gun enhancement were inadequately explained, and inconsistent with other guideline provisions and commentary (e.g., the guideline addressing possession of explosives provides for a two-point enhancement if the defendant knows or has reason to know that the explosives are stolen).  Finally, the enhancement did not comport with 18 U.S.C. § 3553 factors (e.g., “it does not provide deterrence since a person cannot be deterred from doing what he or she does not know is being done” and the absence of the requirement of scienter “does not reflect the seriousness of the offense, promote respect for the law or provide just punishment for the offense”). 


Handy is an important blueprint for analyzing and challenging guideline enhancements, like the stolen gun provision, that are dictated by the guideline commentary.  Commentary has the full force of guidelines, but unlike guidelines, is not presented to Congress for review, nor is it subject to the rigors of the APA.  As such, Judge Weinstein points out, quoting EDNY Judge Gleeson’s recent article in the Hofstra Law Review, amendments to the commentary can effect “important policy changes . . . by stealth, disguised as ‘clarifications.’”  In fact, as Handy details, that is precisely how the stolen gun enhancement emerged. 

Moreover, Handy contains the seeds for more far-reaching challenges to guideline enhancements (whether in actual guidelines or the commentary) on the grounds that they lack an explicit requirement of intent or, at least, reasonable foreseeability.  Examples abound, but would include the enhancement for jeopardizing the soundness of a financial institution in a fraud case, smuggling an alien who happens to be a minor, distributing an anabolic steroid to an athlete, or engaging in an offense involving fish or wildlife that is included in certain protected lists or creates a risk of infestation or disease.  As Judge Weinstein points out:  “The same due process requirement for legislative enactments that conduct without culpable mens rea cannot be criminalized except for minor strict liability crimes, is applicable to the work of the Sentencing Commission. Consistent with fundamental legal tradition that blameworthiness hinges upon a culpable state of mind, the defendant’s Guideline calculation must be predicated upon culpability.”
In a post-Booker/Kimbrough world, where all sentencing precedents may be revisited and guidelines challenged as ill-considered, Handy is a rallying cry to defense lawyers to subject every guideline enhancement to rigorous scrutiny for legal and factual fault-lines. 

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