NASIR

A recent decision in the Third Circuit totally changed the playing field for criminal history in federal criminal matters, as well as in firearm offenses. In United States v. Nasir No. 18-2888, 2020 U.S. App. LEXIS 37489, *53 (3d Cir. Dec. 1, 2020), the Third Circuit held that inchoate crimes (conspiracy and attempts)  are not included in the definition of “controlled substance offenses” given in the U.S. Sentencing Guidelines Manual § 4B1.2(b), which applies to career offender determinations. Therefore, sitting en banc, the Third Circuit overruled United States v. Hightower, 25 F.3d 182 (3d Cir. 1994).  The implication of this decision is huge — and many people who had been designated career offenders and subjected to extremely high sentencing guidelines because of that designation are no longer in this category.  Since the definition of “controlled substance offense” set forth in § 4B1.2(b) (career offender) also applies to the sentencing calculations for firearm offenses (§ 2k2.1), and because in that guideline one can receive an enhancement for having “prior controlled substance offense(s),” this holding has a significant effect on calculating guidelines for firearm offenses as well. Another important holding of Nasir is that in a prosecution under 18 U.S.C. § 922(g) (possession of a firearm by a convicted felon), the Government must prove both that the defendant knew he possessed a firearm and that he knew he belonged to the relevant category of persons barred from possessing a firearm. Previously in a § 922(g) case, the prosecution was required only to prove beyond a reasonable doubt that the defendant knowingly possessed a firearm. Nasir puts an additional burden on the prosecution to prove knowledge of both possession and status as a person who may not legally possess a firearm. The Third Circuit reasoned that “whether viewed as a matter of the Fifth Amendment’s guarantee of due process or the Sixth Amendment’s promise of trial by jury, or both, a deprivation of those essential rights seriously impugned the fairness, integrity, and public reputation of judicial proceedings.” United States v. Nasir, No. 18-2888, 2020 U.S. App. LEXIS 37489, *53 (3d Cir. Dec. 1, 2020).

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