The Volokh Conspiracy - Federal Prosecutors Argue Self-Defense Is Irrelevant When Enhancing Sentence for Firearms Possession:

Sentencing Guideline 2K2.1(b)(5) (now advisory, not binding) calls on judges to substantially increase a convicted defendant's sentence where he had used or possessed a firearm "in connection with another felony offense," for instance assault or homicide. All well and good, but you'd think that this would mean, well, a felony offense, and using a firearm in self-defense wouldn't count — even if you were threatening or shooting someone in self-defense, you'd be committing a lawful act, not a "felony offense."

Not so, argues the U.S. Attorney's office for the Eastern District of Arkansas (citations omitted):

The provision [2K2.1(b)(5)] does not provide an exception in cases where a defendant may have a defense to the connected felony. The United States respectfully urges that this unambiguous language of the comment clearly precludes such a possibility.

The comment to this Guideline section explains that it is of no matter whether or not a criminal charge is ever brought or obtained against the defendant for the connected felony. As such, it reasonably follows that it is not relevant if there may be some defense to the connected felony. Either way, the § 2K2.1(b)(5) enhancement is still applicable. The plain language of the Guideline and its commentary are obviously geared towards the appellant’s conduct, not the possibility or plausibility of any defense theory that he may assert in the case should charges for the connected felony ever be brought.

This means that if you commit a crime, and in the process were also using a gun to defend yourself (or your child) against a would-be murderer, your sentence for the other crime would be enhanced — by more than half, if my calculation is right — because of your perfectly lawful, even praiseworthy, actions. In this case, Raglin's actions ultimately proved not to be valid self-defense; but the government's argument was that Raglin (and others) should have lost even if they were assaulting someone in perfectly legal self-defense.

Fortunately, the Eighth Circuit would have none of it:

This contention is without merit. The enhancement applies if the defendant used the firearm "in connection with another felony offense." When there is no prior conviction for that offense, the government must prove at sentencing (by a preponderance of the evidence) that the defendant committed it.... [T]he definition of aggravated assault expressly excludes '[a]ny person acting in self-defense or the defense of a third party.' Thus, when Raglin presented evidence arguably supporting self-defense or a justification defense to the charge of aggravated assault, the government had to negate that defense by a preponderance of the evidence for the § 2K2.1(b)(6) enhancement to apply."

Good that the Eighth Circuit at least respects self-defense rights, even if the federal prosecutors in this case did not. (The Eighth Circuit ultimately held that Raglin was not acting in legally permissible defense of self, home, or property, but it acknowledged that if Raglin had been so acting, he would not have been eligible for the enhancement.)

Thanks to How Appealing for pointing to this case.

	[Eugene Volokh, September 4, 2007 at 4:34pm] Trackbacks Federal Prosecutors Argue Self-Defense Is Irrelevant When Enhancing Sentence for Firearms Possession: Sentencing Guideline 2K2.1(b)(5) (now advisory, not binding) calls on judges to substantially increase a convicted defendant's sentence where he had used or possessed a firearm "in connection with another felony offense," for instance assault or homicide. All well and good, but you'd think that this would mean, well, a felony offense, and using a firearm in self-defense wouldn't count — even if you were threatening or shooting someone in self-defense, you'd be committing a lawful act, not a "felony offense." Not so, argues the U.S. Attorney's office for the Eastern District of Arkansas (citations omitted): The provision [2K2.1(b)(5)] does not provide an exception in cases where a defendant may have a defense to the connected felony. The United States respectfully urges that this unambiguous language of the comment clearly precludes such a possibility. The comment to this Guideline section explains that it is of no matter whether or not a criminal charge is ever brought or obtained against the defendant for the connected felony. As such, it reasonably follows that it is not relevant if there may be some defense to the connected felony. Either way, the § 2K2.1(b)(5) enhancement is still applicable. The plain language of the Guideline and its commentary are obviously geared towards the appellant’s conduct, not the possibility or plausibility of any defense theory that he may assert in the case should charges for the connected felony ever be brought. This means that if you commit a crime, and in the process were also using a gun to defend yourself (or your child) against a would-be murderer, your sentence for the other crime would be enhanced — by more than half, if my calculation is right — because of your perfectly lawful, even praiseworthy, actions. In this case, Raglin's actions ultimately proved not to be valid self-defense; but the government's argument was that Raglin (and others) should have lost even if they were assaulting someone in perfectly legal self-defense. Fortunately, the Eighth Circuit would have none of it: This contention is without merit. The enhancement applies if the defendant used the firearm "in connection with another felony offense." When there is no prior conviction for that offense, the government must prove at sentencing (by a preponderance of the evidence) that the defendant committed it.... [T]he definition of aggravated assault expressly excludes '[a]ny person acting in self-defense or the defense of a third party.' Thus, when Raglin presented evidence arguably supporting self-defense or a justification defense to the charge of aggravated assault, the government had to negate that defense by a preponderance of the evidence for the § 2K2.1(b)(6) enhancement to apply." Good that the Eighth Circuit at least respects self-defense rights, even if the federal prosecutors in this case did not. (The Eighth Circuit ultimately held that Raglin was not acting in legally permissible defense of self, home, or property, but it acknowledged that if Raglin had been so acting, he would not have been eligible for the enhancement.) Thanks to How Appealing for pointing to this case.