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9th Cir: possession of AW isn't a "crime of violence"
Via the Volokh Conspiracy : the 9th has ruled, Judge Kozinski writing, that a California conviction for possessing an assault rifle is not a prior "crime of violence" for purposes of enhancing federal sentencing. pdf file.
Defendant was later convicted for being a felon in possession, and the trial court roughly doubled his sentence under the Sentencing Guidelines, on grounds that he had the prior. Crime of violence is defined in the guidelines to include a crime that had a serious risk of inflicting bodily harm, and the 9th had previously ruled that possession of sawed-off shotguns and silencers met this test. Kozinski distinguishes the earlier cases on the grounds that the firearms were unusual and unlikely to have legal uses, whereas "assault rifles" can have such.
(Fn. 3 is funny -- the National FIrearms Act of course defines "firearm" to be full auto, sawed-offs, silencers and a few other items only. Fn. 3 quotes a 5th Circuit case: "“In short, the term [firearm] as used in the Act bears little if any correspondence to that in common usage, much as though the word ‘animal’ were defined in some supposititious National Zoo Act to exclude all mammals, reptiles and birds except lions and tigers, but to include freight trains, teddy bears, feather-boas and halltrees.”
Isn't this the same 9th Circuit Court that has been overturned so many times by the Supreme Court?
Of course, I doubt that this kind of opinion will be overturned...
It is a refreshing change from the usual 9th Circuit opinions that get into the news.