§ 19.70 (A)
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(A) The Statute. In addition to the firearms trafficking aggravated felony discussed in § 19.69, supra, the aggravated felony definition includes an offense described in the following sections of 18 U.S. Code:
· 844(h) (receiving stolen explosives),
· 841(i) (shipping or receiving explosives in interstate or foreign commerce by indictee, felon, fugitive, addict, or mental defective or committee),
· 844(d) (transportation or receipt of explosives in interstate or foreign commerce with intent to injure, intimidate or damage property),
· 844(e) (communication of threat or false information concerning attempt to injure, intimidate, or damage property by fire or explosive),
· 844(f) (malicious damage by fire or explosive to property of United States or organization receiving federal funds),
· 844(g) (illegal possession of explosive in airport),
· 844(h) (use or carrying of explosive in commission of federal felony),
· 844(i) (malicious destruction by fire or explosive of property used in or affecting commerce),
· 922(g)(1)-(5) (shipping or receiving firearms or ammunition by felon, fugitive, addict, mental defective or committee, alien unlawfully in U.S., dishonorable discharge, or person who renounced U.S. citizenship),
· 922(j) (receiving stolen arms or ammunition),
· 922(n) (shipping or receiving arms or ammunition by felony indictee),
· 922(o) (possession of machine gun),
· 922(p) (possession of undetectable firearm),
· 922(r) (assembly of illegal rifle or shotgun from imported parts),
· 924(b) (ship or receive firearm or ammunition with intent therewith to commit a felony), and
· 924(h) (transfer of firearm with knowledge it will be used to commit a crime of violence or drug trafficking offense).
The definition also includes “an offense described in” Internal Revenue Code § 5861 (26 U.S.C. § 5861) (failure to pay firearms tax, possession of unregistered firearm or one with serial number altered, etc.). That section prohibits the following acts:
a. engage in business as firearms dealer without having paid special tax or registered as required in 26 U.S.C. § § 5801, 5802,
b. possess a firearm transferred in violation of this chapter (26 U.S.C. § § 5801-5872),
c. possess a firearm made in violation of this chapter,
d. possess a firearm not registered to the possessor in the National Firearms Registration and Transfer Record,
e. transfer a firearm in violation of this chapter,
f. make a firearm in violation of this chapter,
g. alter identification of a firearm required by this chapter,
h. possess a firearm with altered identification,
i. possess a firearm not identified as required by this chapter,
j. transport or receive any firearm in interstate commerce which has not been registered as required by this chapter,
k. possess a firearm imported into the U.S. in violation of 26 U.S.C. § 5844, or
l. knowingly make a false entry on any record required by this chapter.
A conviction of a listed offense, or of a state offense of which the minimum conduct falls entirely within one of the listed federal offenses, will constitute an aggravated felony under this definition.
 INA § 101(a)(43)(E), 8 U.S.C. § 1101(a)(43)(E).
 Alvarado v. Gonzales, 484 F.3d 535, 536 (8th Cir. Apr. 17, 2007) (per curiam) (federal conviction of possession of firearms and ammunition by an unlawful user of a controlled substance, under 18 U.S.C. § § 922(g)(3), 924(a)(2), constituted aggravated felony for purposes of removal and disqualification from cancellation of removal, despite the fact that the parties agreed in the plea agreement that the base offense level under the Sentencing Guidelines is reduced because the defendant possessed the firearm “solely for lawful sporting purposes,” distinguishing Lemus-Rodriguez v. Ashcroft, 350 F.3d 652, 655 (7th Cir. 2003), as not addressing an aggravated felony firearms offense).
AGGRAVATED FELONY " FIREARMS
United States v. OBrien, 130 S.Ct. 2169 (May 24, 2010) (the fact that a firearm was a machine gun is an element to be proved to the jury beyond a reasonable doubt, not a sentencing factor to be proved to the judge at sentencing).
CONVICTION " EXISTENCE OF CONVICTION " YOUTHFUL OFFENDER ADJUDICATION JUVENILE " YOUTHFUL OFFENDER ADJUDICATION
Matter of V-X-, 26 I. & N. Dec. 147 (BIA 2013) (an individual whose criminal prosecution was adjudicated through Michigans youthful trainee designation, Mich. Comp. Laws 762.11, was convicted for immigration purposes, even though adjudication of guilt was deferred, since the designation resulted from a criminal adjudication; distinguishing the Federal Juvenile Delinquency Act, 18 U.S.C. 5031-5042); see Uritsky v. Gonzales, 399 F.3d 728 (6th Cir. 2005). CD4:7.23, 12.11;CMT3:2.9;AF:3.41;SH:4.10 FIREARMS " RELATING TO LANGUAGE INCLUDES AMMUNITION Matter of Oppedisano, 26 I&N Dec. 202 (BIA 2013) (the relating to language in the aggravated felony provision sanctioning convictions for certain firearms offenses, INA 101(a)(43)(E), 8 U.S.C. 1101(a)(43)(E), is to be read broadly to include possession of ammunition by person with a felony conviction, in violation of 18 U.S.C. 922(g)(1)).
AGGRAVATED FELONY " FIREARMS OFFENSES " UNLAWFUL POSSESSION OF AMMUNITION BY CONVICTED FELON " RELATING TO
Matter of Oppedisano, 26 I. & N. Dec. 202 (BIA 2013) (federal conviction of unlawful possession of ammunition by a convicted felon, in violation of 18 U.S.C. 922(g), is an aggravated felony for immigration purposes; the relating to language used in the Act is does not limit the scope of the statute). http://www.justice.gov/eoir/vll/intdec/vol26/3793.pdf
AGGRAVATED FELONY " EXPLOSIVES OFFENSES " ARSON
Matter of Bautista, 25 I&N Dec. 616 (BIA 2011) (New York conviction of attempted arson in the third degree, in violation of New York Penal Law 110, 150.10, is an aggravated felony under INA 101(a)(43)(E)(i), 8 U.S.C. 1101(a)(43)(E)(i), relating to explosives material offenses, even though the state crime lacks the jurisdictional element in the applicable federal arson offense); following Matter of Vasquez-Muniz, 23 I&N Dec. 207 (BIA 2002).
AGGRAVATED FELONY " EXPLOSIVES OFFENSE
Matter of Bautista, 25 I&N Dec. 616, 620 (BIA 2011) (New York conviction of attempted arson, in violation of New York Penal Code 110 and 150.10, categorically constituted an aggravated felony under INA 101(a)(43)(E)(i), 8 U.S.C. 1101(a)(43)(E)(i); state conviction need not contain federal jurisdictional element to be an aggravated felony); following Matter of Vasquez-Muniz, 23 I&N Dec. 207, 212 (BIA 2002) (it must render irrelevant any purely jurisdictional element appearing in the crimes enumerated.).
AGGRAVATED FELONY - FIREARMS OFFENSES - ANTIQUE FIREARM DEFENSE
Matter of Mendez-Orellana, 25 I&N Dec. 254 (BIA Jun. 9, 2010) (the antique firearm exception in 18 U.S.C. 921(a)(3) is an affirmative defense that must be proven by the noncitizen after the DHS has established the conviction by clear and convincing evidence). NOTE: the BIA did not specify the standard (e.g. preponderance of the evidence) by which the noncitizen must prove the exception applies. This decision appears to conflict with the general rule, both statutory and under the Woodby Supreme Court decision, placing the burden of persuasion on the government to establish every fact necessary to establish deportability, and may be challenged in circuit court.
AGGRAVATED FELONIES " FIREARMS OFFENSES " POSSESSION OF AMMUNITION
Oppedisano v. Holder, 769 F.3d 147 (2d Cir. Oct. 8, 2014) (federal conviction for the unlawful possession of ammunition, under 18 U.S.C. 922(g)(1), qualifies as an aggravated felony under INA 101(a)(43)(E)(ii), 8 U.S.C. 1101(a)(43)(E)(ii)).
AGGRAVATED FELONY " FIREARMS OFFENSES " FIRST-DEGREE ARSON
Espinal-Andrades v. Holder, ___ F.3d ___, 2015 WL 268528 (4th Cir. Jan. 22, 2015) (Maryland conviction of first-degree arson, in violation of Md.Code Ann., Crim. Law 6"102, qualified as an aggravated felony under INA 101(a)(43)(E), 8 U.S.C. 1101(a)(43)(E), because the elements are identical to the elements of the federal arson statute, 18 U.S.C. 844(i), which is listed under this aggravated felony definition, except for the interstate commerce element, which Congress did not intend to bar inclusion of a state offense in the aggravated felony definition); rejecting contrary analysis of Bautista v. Attorney Gen. of U.S., 744 F.3d 54 (3d Cir. 2014).
SAFE HAVENS - BB GUN NOT FIREARM
United States v. Walker, 40 F.3d 1245, 1245 (4th Cir. 1994) (Government conceded that BB gun was not a firearm under statutory definition), United States v. Rosa, 507 F.3d 142, 145 n. 1 (2d Cir. Oct. 30, 2007) (Court stated that not all guns are firearms, specifically naming BB guns as an example). Thanks to Richard Breitman & Roshani M. Gunewardene
NOTE: Some states (e.g. Florida, Nebraska) allow conviction for use of a deadly weapon by BB or other toy gun.
AGGRAVATED FELONY " FIREARMS " FRAUDLENT PURCHASE OF FIREARMS FOR EXPORT
Franco-Casasola v. Holder, __ F.3d __ (5th Cir. Oct. 23, 2014) (federal conviction for violation of 18 U.S.C. 554(a), fraudulent purchase of firearms for export, is a divisible statute, as a target offense where the indictment must specify, and the prosecutor must prove, the underlying offense; record established aggravated felony firearms trafficking offense since the indictment specified a firearms trafficking offense).
AGGRAVATED FELONIES " FIREARMS OFFENSES " FELON IN POSSESSION OF FIREARM
United States v. Portillo-Munoz, 643 F.3d 437 (5th Cir. Jun. 13, 2011) (federal statute prohibiting any alien illegally or unlawfully present in the United States from possessing any firearm or ammunition shipped in interstate or foreign commerce did not violate the Second Amendment, since undocumented noncitizens are not within the group the people to which the Second Amendment applies). Note: the majority notes that there are six uses of the phrase the people in the constitution, including in the First and Fourth Amendments. This case apparently opens the possibility that the First and Fourth Amendments could likewise be held not to apply to undocumented noncitizens.
AGGRAVATED FELONY - FIREARMS - INTERSTATE COMMERCE ELEMENT
Hernandez v. Holder, __ F.3d __ (5th Cir. Dec. 30, 2009) (Texas conviction for violation of Texas Penal Code section 46.04(a), possession of a firearm by a felon, is an aggravated felony firearms offense; it is not necessary for a state offense to contain a federal jurisdictional element to be an offense "described in" 18 U.S.C. section 922(g)(1), and qualify as an aggravated felony under INA 101(a)(43)(E)), following Matter of Vasquez-Muniz, 23 I. & N. Dec. 207 (BIA 2002).
AGGRAVATED FELONY " FIREARMS OFFENSES " POSSESSION OF A WEAPON
(Illinois conviction for being in possession of a weapon in violation of 720 ILCS 5/24"1.1(a) did not qualify as an aggravated felony, because Illinoiss definition of a firearm is broader than its federal counterpart because it includes pneumatic weapons). NOTE: Compressed air is not an explosive, which means that pneumatic weapons are not firearms under federal law. See, e.g., United States v. Castillo-Rivera, 853 F.3d 218, 225 (5th Cir. 2017) (en banc); United States v. Crooker, 608 F.3d 94, 96 (1st Cir. 2010). Rodriguez-Contreras v. Sessions, 873 F.3d 579, 580 (Cir. 2017).
POST CON RELIEF " GROUNDS " INSUFFICIENCY OF EVIDENCE
United States v. Griffin, ___ F.3d ___, ___ (7th Cir., Jul. 5, 2012) (reversing federal conviction for felon in possession of firearms where there was no evidence defendant intended to exercise any control over his father's firearms in his parents' home where he went to live after being released from prison: a defendant's strong connection to the residence alone does not suffice to establish the nexus required to prove his constructive possession of a gun found in the residence.").
AGGRAVATED FELONY - FIREARMS - POSSESSION BY FELON
Negrete-Rodriguez v. Mukasey, 518 F.3d 497 (7th Cir. Mar. 3, 2008) (Illinois conviction of unlawful possession of a weapon by a felon, in violation of 720 ILCS 5/24-1.1(a), constituted an aggravated felony under INA 101(a)(43)(E)(ii), 8 U.S.C. 1101(a)(43)(E)(ii) ("[t]he term aggravated felony means ... an offense described in ... section 922(g)(1) ... of Title 18 (relating to firearms offenses).", despite the fact that the Illinois offense lacks the interstate commerce element of the analogous federal offense), following United States v. Castillo-Rivera, 244 F.3d 1020 (9th Cir. 2001) (sentencing Guidelines context).
AGGRAVATED FELONY " STATE CONVICTION " FEDERAL JURISDICTIONAL ELEMENT AGGRAVATED FELONY " ARSON
Sandoval-Gomez v. Holder, ___ F.3d ___, 2014 WL 4668962 (9th Cir. Sept. 22, 2014) (California conviction of attempted arson, in violation of Penal Code 455, constituted aggravated felony arson under, INA 101(a)(43)(E), 8 U.S.C. 1101(a)(43)(E) under the modified categorical approach; the federal element found in section 844 is a purely jurisdictional element which must be disregarded in determining whether the state law qualifies as an aggravated felony under federal law), vacated 771 F.3d 511 (9th Cir. Oct. 24, 2014).
AGGRAVATED FELONY " FIREARMS OFFENSES " ANTIQUE FIREARMS DEFENSE
United States v. Hernandez, 769 F.3d 1059 (9th Cir. Oct. 20, 2014) (per curiam) (California conviction for being a felon in possession of a firearm under California Penal Code 12021(a)(1), did not categorically qualify as a listed firearms aggravated felony, under INA 101(a)(43)(E), 8 U.S.C. 101(a)(43)(E), since the state did not have an exception for antique firearms, as federal law did, and the state in fact prosecuted defendants under this statute for being in possession of antique firearms, and the state statutory definition of firearm is not divisible, so resort to the modified categorical analysis or record of conviction is prohibited).
AGGRAVATED FELONIES " FIREARMS OFFENSES " ANTIQUE FIREARMS
United States v. Aguilera-Rios, ___ F.3d ___, 2014 WL 2723766 (9th Cir. Jun. 17, 2014) (California Penal Code 12021(c)(1), current Penal Code 29800, is not a categorical aggravated felony firearms offense, since the statute lacks an antique firearms exception); explicitly partially overruling Gil v. Holder, 651 F.3d 1000, 1005"06 (9th Cir. 2011), and implicitly partially overruling Matter of Mendez-Orellana, 25 I&N Dec. 254 (BIA 2010).
FIREARMS OFFENSE " ANTIQUE FIREARMS DEFENSE TO REMOVAL " OPEN QUESTION IN NINTH CIRCUIT
Pagayon v. Holder, ___ F.3d ___, 2011 WL 2508239 (9th Cir. Jun. 24, 2011) (per curiam) (California conviction of violating Penal Code 12021(a)(1), possession of firearms by felons and drug addicts, is not categorically a deportable firearms conviction, under INA 237(a)(2)(C), 8 U.S.C. 1227(a)(2)(C), because the record of conviction does not show that he was convicted of possessing a non-antique firearm that fell within the federal definition of firearm: As noted, we leave for another day whether such proof is required to establish removability based on a conviction under Cal. Penal Code 12021(a)(1).).
AGGRAVATED FELONY - FIREARMS - POSSESSION OF FIREARM
Anaya-Ortiz v. Mukasey, 553 F.3d 1266 (9th Cir. Jan. 27, 2009) (following United States v. Castillo-Rivera in the immigration context); see United States v. Castillo-Rivera, 244 F.3d 1020 (9th Cir. Mar. 26, 2001), cert. denied, 122 S.Ct. 294 (2001) (California conviction for violating California Penal Code 12021(a), felon in possession of a firearm, constitutes an aggravated felony under INA 101(a)(43)(E), 8 U.S.C. 1101(a)(43)(E), because it is "an offense described in" 18 U.S.C. 922(g)(1), the federal felon-in-possession statute, even though the state crime, unlike 922(g), does not include any interstate or foreign commerce federal jurisdictional element, and therefore supports sentence enhancement under U.S.S.G. 2L1.2(b)(1)(A) for illegal re-entry conviction of violating INA 176(a), 8 U.S.C. 1326(a)).
AGGRAVATED FELONY - FIREARMS OFFENSES - FELON IN POSSESSION OF FIREARM
Anaya-Ortiz v. Mukasey, 553 F.3d 1266 (9th Cir. Jan. 27, 2009) (following United States v. Castillo-Rivera in the immigration context); see United States v. Castillo-Rivera, 244 F.3d 1020 (9th Cir. Mar. 26, 2001), cert. denied, 122 S.Ct. 294 (2001) (California conviction for violating California Penal Code 12021(a), felon in possession of a firearm, constitutes an aggravated felony under INA 101(a)(43)(E), 8 U.S.C. 1101(a)(43)(E), and therefore supports sentence enhancement under U.S.S.G. 2L1.2(b)(1)(A) for illegal re-entry conviction of violating INA 176(a), 8 U.S.C. 1326(a), because it is "an offense described in" 18 U.S.C. 922(g)(1), the federal felon-in-possession statute, even though the state crime, unlike 18 U.S.C. 922(g), it does not include any interstate or foreign commerce federal jurisdictional element).
IMMIGRATION OFFENSES " FEDERAL " ILLEGAL ALIEN IN POSSESSION OF FIREARMS " CONSTITUTIONALITY OF STATUTE FIREARMS OFFENSES " RIGHT TO BEAR ARMS
United States v. Huitron-Guizar, 678 F.3d 1164 (10th Cir. May 7, 2012) (affirming federal conviction of being an illegal alien in possession of firearms transported or shipped in interstate commerce, in violation of 18 U.S.C. 922(g)(5)(A), 924(a)(2), rejecting claim that the statute is unconstitutional as an abridgment of the right to bear arms as interpreted in District of Columbia v. Heller, 554 U.S. 570 (2008)).
CD4:15.34;AF:6.30;CMT3:10.31;PCN:10.15; CPCN:2.10; 11.21
While the Board of Immigration Appeals has previously held that a nonimmigrant would have to affirmatively show that the firearm in the particular case actually was an antique (Matter of Mendez-Orellana (BIA 2010) 25 I&N Dec 254, 255), it would appear that the Supreme Court overruled that finding in Moncrieffe v Holder (2013) 133 SCt 1698, 1673. In Moncrieffe, the Court both reaffirmed that a statute defining an offense of conviction must be evaluated solely on the minimum conduct sufficient to commit it, and specifically discussed the antique firearm exception. The Court stated that as long as there is a realistic probability that antique firearms actually are prosecuted under the state statute at issue, a conviction should not be held a deportable firearm offense. Despite Moncrieffe, however, there is real uncertainty as to how the antique firearm defense will be treated in immigration court, and defense counsel should not count on it to save a defendant from deportation " unless the weapon involved in the offense really was a qualifying antique firearm. Otherwise, if the general antique firearm defense is the only alternative, the plea should be restricted to California offenses in which antique firearms actually have been prosecuted. See former Cal. P.C. 12022 (armed with antique weapon while committing felony) and former P.C. 12021 (possession by felon), and their current equivalent statutes, and see, e.g., People v. Gossman, 2003 WL 22866712 (2003); People v. McGraw, 2004 WL 928379 (2004). The California Penal Code, unlike 18 U.S.C. 921(a)(3), makes it a crime to possess an antique firearm. Penal Code 25400(a); see Gil v. Holder, 651 F.3d 1000, 1005 (9th Cir. 2011) (holding that conviction under predecessor California statute met federal gun definition even though former statute included conviction for an antique firearm, because antique firearm was an affirmative defense, rather than an element of the offense). Despite the fact that convictions under the California statute would seem necessarily to fail the categorical inquiry, a noncitizen convicted under this provision still must show a realistic probability that California would prosecute a defendant for having an antique weapon. See Moncrieffe v Holder, ___ US ___, 133 SCt 1678, 1693 (2013). See also People v. Robinson (2011) 199 CA4th 707, 131 CR3d 177 (affirming that California firearms definition, applicable to the state felon in possession offense, Penal Code 12021, criminalizes possession of antique or inoperable firearms); People v. Wolfe (2003) 114 Cal.App.4th 177, 7 Cal.Rptr.3d 483 (California prosecution for possession of a firearm, after having suffered a conviction for a felony or qualifying misdemeanor, in violation of Penal Code 12021(c)(1), based on possession of a Winchester 16"gauge shotgun and a bolt-action Sharps shotgun, which appeared to be antique firearms); People v. Claseman (1986) 183 Cal.App.3d Supp. 1, 229 Cal.Rptr. 453 (documenting prosecution for violation of Penal Code 12025(a), carrying a firearm concealed in a vehicle, on the basis of an antique firearm; conviction reversed since firearm was inoperable, not because it was an antique).
AGGRAVATED FELONY - FIREARMS OFFENSES - UNCONSTITUTIONALITY OF STATUTE DEFINING OFFENSE
Counsel can argue that 18 U.S.C. 922(g)(5)(A) is unconstitutional because it limits the right of the people to bear arms in light of D.C. v. Heller.
The government's arguments are (1) that "illegal aliens" are not part of the "people" for purposes of Second Amendment. See United States v. Verdugo-Urquidez, 494 U.S. 259 (1990) (holding no extraterritorial applicability of the Fourth Amendment because a noncitizen in Mexico is not part of "people" for Fourth Amendment purposes); and (2) that the limitation on bearing arms is justified in case of "illegal aliens" even under D.C. v. Heller because of their "propensity to criminality." There is a great deal of evidence, however, that immigrants commit 50% to 67% fewer criminal offenses than U.S. citizens commit, so this second argument does not seem factually justifiable. E.g., Radley Balko, The El Paso Miracle: How can a comparatively poor, high-immigration town that sits across the border from super-violent Ciudad Juarez be one of the safest big cities in America?, Reason Magazine, Reasononline (July 6, 2009), http://www.reason.com/news/show/134579.html; Derek Monson, Just the Facts and Reading the Tea Leaves, Sutherland Institute Releases Findings on Undocumented Immigrants in County Jails, http://sutherlandinstitute.org/newsletter/story.asp?n=132&s=328 (undocumented immigrants are not major sources of crime, accounting for less than five percent of state prisoners and less than four percent of county-jail inmates in Utah institutions); http://sutherlandinstitute.org/uploads/immigrationJustTheFacts.pdf; http://sutherlandinstitute.org/uploads/immigrationReadingTheTeaLeaves.pdf. There is troubling language in Verdugo where Court did stated that it had never expressly held that "people" includes the undocumented for purposes of Fourth Amendment protection. There is a potentially significant downside risk to the government's Fourth Amendment argument. Thanks to Dan Kesselbrenner.
SAFE HAVENS" AGGRAVATED FELONY"FELON IN POSSESSION OF A FIREARM"OWNERSHIP NOT SUFFICIENT AGGRAVATED FELONY"FELON IN POSSESSION OF A FIREARM"OWNERSHIP NOT SUFFICIENT
A state conviction of being a felon, addict, or undocumented person in possession of a firearm is an aggravated felony for immigration purposes, because it is analogous to federal firearms offenses at 18 U.S.C. 922(g)(1)-(5). However, a conviction of being a felon, addict, or undocumented person who owns, rather than possesses, a firearm is not an aggravated felony. Current California Penal Code 29800, and former 12021(a), prohibit not only possessing but owning a firearm. 18 U.S.C. 922(g) does not prohibit owning a qualifying firearm. It makes it illegal only "to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce. (Ibid.) Therefore, even a felon, addict, or undocumented person should be able to plead guilty to owning a firearm under the California statute, without having an aggravated felony conviction. See United States v. Pargas-Gonzalez, 2012 WL 424360 (S.D. Cal. Feb. 9, 2012) (unpublished) (concluding that former California Penal Code 12021(a) is not categorically an aggravated felony as an analog to 18 U.S.C. 922(g)(1) (felon in possession of a firearm) because former California Penal Code 12021(a) is broader than the federal statute in that it covers mere ownership of guns by felons, where the federal statute does not). Pargas-Gonzalez cites United States v. Casterline, 103 F.3d 76, 78 (9th Cir. 1996) in which the court reversed a conviction under 922(g)(1) where the defendant owned a firearm but was not in possession of it. Counsel should ensure the record of conviction does not establish actual possession of the firearm, but only ownership. Counsel should not stipulate to a factual basis for the plea that shows the defendant having control over or custody of a firearm. As the Ninth Circuit stated: Ownership may be circumstantial evidence of possession, but it cannot amount to, or substitute for, possession. Possession, actual or constructive, is what the government must prove. The statute [18 U.S.C. 922(g)(1)] does not criminalize ownership of guns by felons. It criminalizes possession. (United States v. Casterline, 103 F.3d at 78). Thanks to Su Yon Yi.
AGGRAVATED FELONY " POSSESSION OR OWNERSHIP OF FIREARM BY NARCOTIC ADDICT " ARGUMENTS CALIFORNIA PENAL CODE 12021(C) IS NOT A CATEGORICAL MATCH WITH 18 U.S.C. 922(G)
The Ninth Circuit stated in Castillo-Rivera that a conviction under Penal Code 12021(a) may not constitute an aggravated felony because it covers those addicted to the use of any narcotic drug[,] 244 F.3d at 1022-23 (emphasis added). Both Penal Code 12021(a)(1) and 18 U.S.C. 922(g) make it a crime for persons addicted to certain substances to possess a firearm, but the California prohibition is broader than the federal statute in two regards. Penal Code 12021(a)(1) prohibits [a]ny person . . . who is addicted to the use of narcotic drugs from possessing a firearm, while 18 U.S.C. 922(g)(3) proscribes the possession of a firearm by any person . . . who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act [CSA] (21 U.S.C. 802)). The California statute is broader with regard to both the substances it regulates and the consumers it prohibits from possessing a firearm. Under California law, [w]henever reference is made to the term narcotics in any provision of law outside [the Uniform Controlled Substances Act], unless otherwise expressly provided, it shall be construed to mean controlled substances classified in Schedules I and II of the Uniform Controlled Substances Act. Health & Safety Code 11032 (West 2007). The Ninth Circuit has note[d] that California law regulates the possession and sale of numerous substances that are not similarly regulated by the federal CSA. Ruiz-Vidal v. Gonzales, 473 F.3d 1072, 1078, 1078 n.6 (9th Cir. 2007); People v. Boultinghouse, 134 Cal.App.4th 619, 622 (2005) (California Schedule I regulates gammabutyrolactone, but the federal CSA does not). Even if narcotic drug in Penal Code 12021(a)(1) were defined by the shorter list of substances in Health & Safety Code 11019, the list is still overbroad since California punishes the possession of optical and geometric isomers; the CSA, in contrast, generally punishes the possession of optical isomers alone. Ruiz-Vidal, 473 F.3d at 1078 (citations omitted); see also Health & Safety Code 11019(b) (West 2007) (regulating isomer[s]). In short, the range of narcotic drugs covered by 12021(a)(1) is broader than that covered by the federal analogue 922(g)(3). The statutes also differ in their definitions of use or addiction. The federal statute proscribes gun possession by any person . . . who is an unlawful user of or addicted to certain controlled substances. 18 U.S.C. 922(g)(3). Although some circuits read this phrase in the disjunctive, see, e.g., United States v. Bennett, 329 F.3d 769, 776 (10th Cir. 2003), the Ninth Circuit has consistently focused solely on the term unlawful user in analyzing convictions under 922(g)(3). See, e.g., United States v. Snipe, 515 F.3d 947, 954 (9th Cir. 2008); United States v. Purdy, 264 F.3d 809, 811-12 (2001); United States v. Ocegueda, 564 F.2d 1363, 1365 (9th Cir. 1977). Accordingly, to sustain a conviction under 922(g)(3), the Government must prove . . . that the defendant took drugs with regularity, over an extended period of time, and contemporaneously with his purchase or possession of a firearm. Purdy, 264 F.3d at 812-13 (emphasis added). By contrast, the California statute proscribes gun possession by persons addicted to certain substances. Penal Code 12021(a)(1). The Supreme Court of California has held that for the Government to prove an individual is addicted to a substance, [t]he prosecutions burden is to show (1) that the defendant has become emotionally dependent on the drug in the sense that he experiences a compulsive need to continue its use, (2) that he has developed a tolerance to its effects and hence requires a larger and more potent does [sic], and (3) that he has become physically dependent so as to suffer withdrawal symptoms if he is deprived of his dosage. People v. ONeil, 401 P.2d 928, 932 (Cal. 1965); accord People v. Washington, 237 Cal.App.2d 59, 68 (1965). Unlike the federal definition of unlawful user, the California definition of addicted to does not contain the critical limiting requirement of contemporaneous use. See Purdy, 264 F.3d at 812-13. Hence, the California statute is broader because it does not require that the defendant use the drug at the time of his or her contact with the weapon, whereas the federal statute does demand the drug use to be contemporaneous with the possession of the firearm. Thanks to Thalassa Kingsnorth.