Free Motion to Strike - District Court of Colorado - Colorado

Case 1:00-cr-00531-WYD

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Filed 03/27/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Criminal Action No. 1:00-cr-00531-WYD UNITED STATES OF AMERICA, Plaintiff, v. WILLIAM CONCEPCION SABLAN RUDY CABRERA SABLAN, Defendants. __________________________________________________________________ William Sablan's Motion To Strike Conviction Under 18 U.S.C. § 924(g)(1) From The Government's NOI As A Basis For The Alleged Statutory Aggravating Factor Set Out in 18 U.S.C. § 3592(c)(2) [Wm DP-29] __________________________________________________________________ Defendant William Sablan ("William"), through undersigned courtappointed counsel, respectfully requests the Court to strike the alleged prior conviction for violation of 18 U.S.C. § 922(g)(1) from the government's Notice Of Intent To Seek the Death Penalty ("NOI"). As grounds, counsel state: 1. As noted in Wm DP-27, the government has alleged as a statutory aggravating factor: "Previous Conviction of Violent Felony Involving Firearm." 1

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This statutory aggravating factor is based upon 18 U.S.C. § 3592(c)(2).
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(Docket #1633 at 3). In support of that factor, the NOI refers to "Criminal Case No. CR99-00018" in which William pled guilty to three charges brought in the United States District Court for the Northern Mariana Islands. (Id.) In that case, William waived his right to an indictment and pled guilty to three counts of an information, which charged violations of 18 U.S.C. §§ 1203, 922(g) and 924(h), respectively. 2. Criminal Case No. CR99-0018 has been addressed in part in Wm DP-27. There, William he moved to strike his guilty plea to § 924(h) as a basis for the alleged statutory aggravating factor on the grounds that the charge, as pled in Count Three of the information, failed to state a federal offense. William incorporates herein by reference his arguments advanced in Wm DP-27. 3. By this motion, William also challenges the use of his guilty plea to Count Two of the same information for similar reasons. 4. Count Two of the information alleged violation of 18 U.S.C. § 922(g)(1), which prohibits a person " who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year . . . to possess in or affecting commerce, any firearm . . .." (emphasis added). The prior convictions relied upon was obtained in the Commonwealth of the Northern Mariana Islands ("CNMI") Superior Court for violations of the CNMI criminal code.
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5. The Supreme Court has interpreted § 922(g)(1)'s language "convicted in any court" as referring to "only domestic courts, not to foreign courts." Small v. United States, 125 S.Ct. 1752, 1758 (2005).2 In reaching this conclusion, the Court found "help in the `commonsense notion that Congress generally legislates with domestic concerns in mind.'" Id. at 1755 (quoting Smith v. United States, 507 U.S. 197, 204 n.5 (1993)). Additionally, it observed that "if read to include foreign convictions, the statute's language creates anomalies." Id. It listed four examples: (1) the statutory exception, set out in § 921(a)(20)(A), that allows gun possession despite prior conviction of "Federal or State" antitrust or regulatory offenses; (2) the fact that the predicate crime may be "a misdemeanor crime of domestic violence", § 922(g)(9), but only "misdemeanor[s] under Federal or State law", § 921(a)(33)(A); (3) the statute provides an enhanced penalty where unlawful gun possession rests upon three predicate convictions for a "serious drug offense", § 924(e)(1), which is defined through reference to specific federal crimes and with the words "offense under States law, §§ 924(e)(2)(A)(I), (ii)"; and (4) the statute provides that offenses that are punishable by a term of imprisonment of up to two years, and characterized under state law as misdemeanors, are not predicate crime,

As a result, the Court reversed the defendant's conviction under § 922(g)(1), which was entered in a federal court in Pennsylvania, but was based upon a prior conviction in a Japanese court.
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§ 921(20). In each of these instances, the Court found that if "convicted in any court" refers only to domestic convictions, the language created no problems, but if it is read to include foreign convictions, the language created "senseless distinctions" between crimes committed within the United States and those committed abroad. Id. at 1756-57.3 6. Under Small, convictions obtained in the local courts of the CNMI cannot serve as predicate convictions for purposes of 922(g). William incorporates herein by reference Wm DP-20, which describes the political relationship between the United States and the CNMI by which CNMI courts cannot be considered "domestic courts". 7. Just as CNMI Code violations cannot serve as a predicate crime of violence for purposes of § 924(h) (see Wm DP-27), they cannot serve as a predicate conviction for purposes of § 922(g)(1). 8. The statutory aggravating factor alleged in the NOI based upon 18 U.S.C. § 3592(c) requires a prior conviction for a "Federal or State offense" that involved the use or attempted use of a firearm against another. The predicate convictions

In United States v. Concha, 233 F.3d 1249 (10th Cir. 2000), the Tenth Circuit vacated the defendant's enhanced sentence under 18 U.S.C. § 924(e) where three of the four prior felony convictions occurred in the United Kingdom on the basis that foreign convictions may not be used as predicate crimes.
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charged in Count Two of the CR99-00018 information are neither Federal nor State crimes. Therefore, William's conviction for violation of 18 U.S.C. § 922(G)(1) must be stricken from the NOI. WHEREFORE, William respectfully requests that the Court strike his § 922(g)(1) conviction as a basis for the statutory aggravating factor alleged in the NOI. Dated: March 27, 2005 Respectfully submitted, Patrick J. Burke Dean Neuwirth Burke & Neuwirth P.C. 1660 Wynkoop Street, Suite 810 Denver, CO 80202 303-825-3050 By: s/ Susan L. Foreman Susan L. Foreman 1660 Wynkoop Street, Suite 810 Denver, CO 80202 303-825-3050 Counsel for William Sablan CERTIFICATE OF SERVICE I hereby certify that on March 27, 2006, I electronically filed the foregoing William Sablan's Motion To Strike Conviction Under 18 U.S.C. § 924(g)(1) From The Government's NOI As A Basis For The Alleged Statutory Aggravating Factor Set Out in 18 U.S.C. § 3592(c)(2) [Wm DP-29] with the Clerk of the Court using the CM/EFC system which will send notification of such filing to the
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Nathan Chambers Chambers, Dansky & Mulvahill 1601 Blake Street, Suite 300 Denver, CO 80202 303-825-2222

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following e-mail addresses: [email protected] [email protected] [email protected] [email protected] By: s/Susan L. Foreman

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