Case 2:16-cr-00046-GMN-PAL Document 1483 Filed 02/02/17 Page 1 – 16

Case 2-16-cr-00046-GMN-PAL Document 1483 Filed 02:02:17 Page 1 - 16

Count Three Dismissed

District of Nevada rules against 924(c)’s Residual Clause…

Count Three DismissedChief Judge Gloria Navarro dismissed Count Three of the Superseding Indictment. Her decision overruled Magistrate Judge Peggy Leen’s recommendation that the charge stay on the indictment. Count Three, known as a 924(c) “enhancement”, provides additional stiff penalties for defendants who use or carry a firearm in furtherance of a crime of violence. The underlying charge, Count Two, (Conspiracy to Impede or Injure a Federal Officer 18 USC § 372), falls into an evolving legal standard regarding “crimes of violence”. The portion of § 924(c) that applies to § 372 is void for vagueness due to recent Supreme Court and Circuit Court rulings.

Impact of dismissal mitigated by avalanche of charges…

The proposed jury verdict form requires the jury to determine:

  1. did the defendant use or carry a weapon according to § 924(c), and
  2. did the defendant brandish the weapon

The difference is two years. The minimum sentence for carrying a weapon is 5 years, it jumps to 7 years if the weapon is found to have been brandished. However, because of sentencing guidelines, a conviction for more than a single § 924(c) will result in each one after the first jumping up to 25 years. Consequently, the odds of an effective life sentence are still staggeringly high.

The statutory minimums now look like this:

  • one § 924(c) conviction: 5-7 years, + sentence for predicate (underlying) offense and other charges – this could turn in to a life sentence depending on what other charges result in conviction and the application of sentences
  • two § 924(c) convictions: 30-32 years, + sentence for predicate (underlying) offense and other charges – this is still an effective automatic life sentence.
  • three § 924(c) convictions: 55-57 years, + sentence for predicate (underlying) offense and other charges

Removal of one of the § 924(c) charges is a small victory, but not substantial enough for breathing room. A single § 924(c) conviction could still result in an effective life sentence depending on how many other charges result in conviction.

Count Three Dismissed

Defendants in the Malheur Refuge Trial also initially faced a § 924(c) charge. It also enhanced a § 372 charge. In that case, the judge removed the § 924 charge. In Nevada, defendants face a multitude of charges, allowing the Government to hedge it’s bet on conviction. It was never the goal for these men to go to trial. The Government stated early on that they expected defendants to plead out.

Everyone is rolling the dice here. The Government didn’t expect to go to trial. Defendants have everything on the line. With only four days to trial, it doesn’t seem like anyone is going to flinch.


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