The Volokh Conspiracy - Interesting Second Amendment Challenge to a Lengthy Firearm Sentence

Over at Sentencing Law and Policy, Professor Doug Berman has this interesting post about a motion he has filed on behalf of Weldon Angelos attempting to set aside at least part of his 55-year prison sentence for carrying/possessing guns in connection with several low level marijuana deals.

Berman's post links to a motion he has filed, arguing that part of the 55-year sentence is now invalid after Heller because it punished Angelos for keeping firearms around his house. Angelos, the argument continues, had a constitutional right to keep and bear arms, including arms at his house. Here is a snippet of the argument:

Though the government may eventually dispute some facts set forth in the 2255 motion, there is no dispute that Angelos had no adult criminal record prior to the instant case and that he was subject to 55 years of mandatory federal imprisonment based principally on allegations of possession of firearms in his home, in his car, and on his person. Specifically, the firearms providing the basis for one 25-year mandatory sentencing term were those present within Angelos's home. And though there is a dispute concerning whether Angelos possessed a firearm during the marijuana sales engineered by the government's informant, there is no evidence whatsoever or even any serious allegation that Angelos actively utilized firearms to facilitate three uneventful hand-to-hand marijuana sales. Nevertheless, on the basis of (suspect and perhaps incredible) testimony of a single government informant, who belatedly asserted that Angelos possessed a firearm during two marijuana sales, the district court felt obliged under statutory sentencing provisions to impose another 30 years of federal imprisonment.

In light of the Supreme Court's broad and forceful recognition of the right of all citizens under the Second Amendment to possess firearms to effectuate "the inherent right of self-defense," District of Columbia v. Heller, 128 S. Ct 2783, 2817 (2008), the extreme sentence imposed upon Angelos for gun possession are now clearly unconstitutional and his 55-year sentence must be at least partially vacated. As explained more fully below, the Supreme Court's landmark Heller ruling as applied to the unique facts of this case render unconstitutional (1) the Government's pursuit of a superseding indictment threatening a 25-year mandatory prison sentence based on the presence of guns within the Angelos home, and (2) the imposition of 55 years of federal imprisonment Angelos is now serving based on his gun possession.

In addition, the Heller ruling, considered together with the Supreme Court's most recent explication of Eighth Amendment jurisprudence and its application in Kennedy v. Louisiana, 128 S. Ct. 2641 (2008), confirms that the 55-year federal prison term that Angelos is serving based on the possession of firearms is constitutionally excessive. Indeed, the combined force of the Heller and Kennedy rulings, along with the notable and constitutionally significant public reactions to both decisions, make plain that the sentence Angelos is now serving violates "the evolving standards of decency that mark the progress of a maturing society." Id. at 2664 (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958)).

You can download the whole brief over at Berman's blog.

Note: Professor Berman is trying to get me reversed here. I was the federal district court judge who, very reluctantly, had to impose the 55 year sentence.

	[Paul Cassell, September 16, 2008 at 2:53pm] Trackbacks Interesting Second Amendment Challenge to a Lengthy Firearm Sentence Over at Sentencing Law and Policy, Professor Doug Berman has this interesting post about a motion he has filed on behalf of Weldon Angelos attempting to set aside at least part of his 55-year prison sentence for carrying/possessing guns in connection with several low level marijuana deals. Berman's post links to a motion he has filed, arguing that part of the 55-year sentence is now invalid after Heller because it punished Angelos for keeping firearms around his house. Angelos, the argument continues, had a constitutional right to keep and bear arms, including arms at his house. Here is a snippet of the argument: Though the government may eventually dispute some facts set forth in the 2255 motion, there is no dispute that Angelos had no adult criminal record prior to the instant case and that he was subject to 55 years of mandatory federal imprisonment based principally on allegations of possession of firearms in his home, in his car, and on his person. Specifically, the firearms providing the basis for one 25-year mandatory sentencing term were those present within Angelos's home. And though there is a dispute concerning whether Angelos possessed a firearm during the marijuana sales engineered by the government's informant, there is no evidence whatsoever or even any serious allegation that Angelos actively utilized firearms to facilitate three uneventful hand-to-hand marijuana sales. Nevertheless, on the basis of (suspect and perhaps incredible) testimony of a single government informant, who belatedly asserted that Angelos possessed a firearm during two marijuana sales, the district court felt obliged under statutory sentencing provisions to impose another 30 years of federal imprisonment. In light of the Supreme Court's broad and forceful recognition of the right of all citizens under the Second Amendment to possess firearms to effectuate "the inherent right of self-defense," District of Columbia v. Heller, 128 S. Ct 2783, 2817 (2008), the extreme sentence imposed upon Angelos for gun possession are now clearly unconstitutional and his 55-year sentence must be at least partially vacated. As explained more fully below, the Supreme Court's landmark Heller ruling as applied to the unique facts of this case render unconstitutional (1) the Government's pursuit of a superseding indictment threatening a 25-year mandatory prison sentence based on the presence of guns within the Angelos home, and (2) the imposition of 55 years of federal imprisonment Angelos is now serving based on his gun possession. In addition, the Heller ruling, considered together with the Supreme Court's most recent explication of Eighth Amendment jurisprudence and its application in Kennedy v. Louisiana, 128 S. Ct. 2641 (2008), confirms that the 55-year federal prison term that Angelos is serving based on the possession of firearms is constitutionally excessive. Indeed, the combined force of the Heller and Kennedy rulings, along with the notable and constitutionally significant public reactions to both decisions, make plain that the sentence Angelos is now serving violates "the evolving standards of decency that mark the progress of a maturing society." Id. at 2664 (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958)). You can download the whole brief over at Berman's blog. Note: Professor Berman is trying to get me reversed here. I was the federal district court judge who, very reluctantly, had to impose the 55 year sentence.