Source: cases/18usc922/f-supp-3d-162-1106-us-v-dunlap.case
Case source: https://www.neochart.com/catalog/cases/f-supp-3d/volume_162/1106_01/index.html
The Ninth Circuit has held that, for the purposes of determining predicate convictions, courts must use the “potential maximum sentence defined by the applicable state criminal statute, not the maximum sentence that could have been imposed against the particular defendant for his commission of the crime according to the state’s sentencing guidelines.”
Defendant’s prior convictions are therefore for crimes punishable by imprisonment for a term exceeding one year.
§ 922(g)(9) prohibits anyone convicted of a misdemeanor crime of domestic violence from possessing firearms.
In assessing .whether a statute that prohibits causing injury meets the requirement of having as an element, the use or attempted use of force, the Court held that “[i]t is impossible to cause bodily injury without applying force in the common-law sense,” and that “the knowing or intentional application of force is a ‘use’ of force.”
casedsl 1
case /f-supp-3d/162/1106-01
name United States v. Dunlap
cite 162 F. Supp. 3d 1106 (2016)
court United States District Court for the District of Oregon
date 2016-02-12
url catalog/cases/f-supp-3d/volume_162/1106_01/index.html
source ir/caselaw/f_supp_3d_162.jsonl sha1=eb5ffee72773084652c50e22f7950f1148060f15 chars=45201
law 18usc922 (g)(1)
role background
posture criminal; sentencing opinion after a jury conviction for felon-in-possession; the only questions are whether three Oregon prior convictions (Robbery III, Assault III, Coercion) are ACCA "violent felonies" (18 U.S.C. 924(e)) and Guidelines "crimes of violence", plus PSR objections; 922(g) is the offense of conviction and no element of it is in dispute
result not-decided
element possession : not-reached
fact @2718..2912 [supports] | The indictment in this case alleged that on January 13, 2014, Defendant knowingly and unlawfully possessed a handgun and that Defendant had at least three prior convictions for violent felonies.
fact @2913..3064 [supports] | Defendant was tried before a jury and, on May 15, 2015, Defendant was convicted of unlawful possession of a firearm in violation of 18 U.S.C. § 922(g).
gloss The jury verdict is recited as the premise of sentencing; this opinion neither describes the possession nor reviews it.
element status.g1 : satisfied [law]
role comparator
theory parallel phrase in ACCA 924(e)(2)(B) and U.S.S.G. 4B1.2(a) ("punishable by imprisonment for a term exceeding one year"), applied to Oregon Class C felony predicates
variant punishable-term/statutory-maximum-not-state-guidelines-range
fact @32857..33013 [supports] | Each of Defendant’s prior convictions is for a Class C felony. Under ORS 161.605(3), a Class C felony is punishable by a maximum of five years imprisonment.
fact @31029..31255 [cuts-against] | Defendant contends that the court cannot rely on the maximum statutory term of imprisonment in determining whether a conviction meets the threshold requirement, but must look instead to Oregon’s sentencing grid and guidelines.
rule @31256..31609 | The Ninth Circuit has held that, for the purposes of determining predicate convictions, courts must use the “potential maximum sentence defined by the applicable state criminal statute, not the maximum sentence that could have been imposed against the particular defendant for his commission of the crime according to the state’s sentencing guidelines.”
held @33014..33126 | Defendant’s prior convictions are therefore for crimes punishable by imprisonment for a term exceeding one year.
gloss Not a ruling on the 922(g)(1) status element: the same words are construed as the ACCA / Guidelines predicate threshold. Recorded because the rule applied (statutory maximum, Murillo) is the opposite of the actual-exposure rule the law file attaches to status.g1 (McAdory). The cuts-against line is the defendant's legal contention, not a fact found.
element status.g9 : not-reached
role comparator
theory Castleman's reading of the 921(a)(33) force element borrowed to construe the ACCA force clause
variant force-element/causing-bodily-injury-entails-use-of-force
rule @18585..18693 | § 922(g)(9) prohibits anyone convicted of a misdemeanor crime of domestic violence from possessing firearms.
rule @19560..19895 | In assessing .whether a statute that prohibits causing injury meets the requirement of having as an element, the use or attempted use of force, the Court held that “[i]t is impossible to cause bodily injury without applying force in the common-law sense,” and that “the knowing or intentional application of force is a ‘use’ of force.”
gloss 922(g)(9) case law is used by analogy to hold that Oregon Assault III (and, by extension, Coercion) has the use of force as an element under ACCA; nobody here was charged under (g)(9). The court notes Castleman left open whether causing injury entails ACCA-level "violent force".
misfit Known (penalty provisions / sibling statutes are not elements): the whole opinion is 18 U.S.C. 924(e) and U.S.S.G. 2K2.1 / 4B1.2 - categorical and modified-categorical analysis of three Oregon statutes (Robbery III not a violent felony: overbroad and indivisible; Assault III and Coercion are), so ACCA does not apply. No declared id; not recorded. A citation to 922(g) here does not make the case an instance of 922(g).
misfit New: the two comparator blocks run in the unusual direction - 922(g) text and 922(g)(9) case law are the SOURCE of a rule applied to a different statute (ACCA), rather than the yardstick a state offense is measured against. `role comparator` does not distinguish "922(g) measured against" from "922(g) borrowed from", and cannot name the borrowing statute.
misfit Good-law / conflict flag (known gap): the status.g1 comparator block follows United States v. Murillo (statutory maximum controls), whereas the law file's status.g1 rule quote (McAdory) looks to the sentence the defendant was actually exposed to. The notation cannot mark the block as in tension with the law-side rule or as superseded.
misfit The opinion's own paraphrase of 922(g) merges the possession and receipt branches ("to possess or receive 'any firearm or ammunition which has been shipped or transported in interstate or foreign commerce'"), which the law file keeps apart (commerce-possession vs commerce-receipt); not quoted as a rule for that reason.
misfit Sentencing-only rulings with no element: stolen-firearm enhancement applies without knowledge that the gun was stolen (U.S.S.G. 2K2.1(b)(4)(A)); acceptance of responsibility; Brady/Giglio sanction and Eighth Amendment arguments mooted.