Free Motion to Strike - District Court of Colorado - Colorado

Case 1:00-cr-00531-WYD

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Filed 03/21/2006

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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.
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William Sablan's Motion To Strike Conviction Under 18 U.S.C. § 924(h) 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-27] _________________________________________________________________ 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. § 924(h) from the government's Notice of Intent to Seek the Death Penalty ("NOI"). As grounds, counsel state: 1. As its first statutory aggravating factor, the government has alleged "Previous Conviction of Violent Felony Involving Firearm." (Docket # 1633 at 3). As support, the NOI refers to William's guilty pleas to three charges brought in "Criminal Case No. CR99-00018" in the United States District Court for the Northern Mariana Islands. (Id.). On April 13, 1999, less than five weeks after the
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alleged events, William waived his right to an indictment and pled guilty to all three counts contained in an information. 2. Count Three of the information charged William with a violation of 18 U.S.C. § 924(h), transferring a firearm knowing it will be used to commit a crime of violence. His guilty plea to this count cannot be used to support the statutory aggravating factor because Count Three failed to charge a federal offense. 3. Count Three read as follows: On or about March 9, 1999, in the District of the Northern Mariana Islands, the defendant, William Concepcion Sablan, did knowingly, intentionally and unlawfully transfer a firearm, to wit: a Smith and Wesson 9mm pistol, Model 5906, Serial # VHN 13587, which he knew would be used to commit a crime of violence, to wit: Assault with a Dangerous Weapon pursuant to Title 6, Commonwealth Code, Sections 201 and 204, all in violation of Title 18, United States Code, Section 924(h). (A copy of the Information is attached). 4. Because the specified "crime of violence" for which the gun was allegedly "transferred" was only a crime under the criminal code of the Commonwealth of the Northern Mariana Islands ("CNMI") and was not a federal crime, Count Three failed to charge a federal offense. 5. Section 924(h) provides that: Whoever knowingly transfers a firearm, knowing that such firearm will be used to commit a crime of violence
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(as defined in subsection (c)(3)) or drug trafficking crime (as defined in subsection (c)(2)) shall be imprisoned not more than 10 years, fined in accordance with this title, or both. 6. As noted, § 924(h) refers the reader to § 924(c)(2) for the definition of "drug trafficking crime" and to § 924(c)(3) for the definition of "crime of violence." To define "drug trafficking crime" (c)(2) specifies felonies punishable under 21 U.S.C. 801, et. seq., 21 U.S.C. 951, et seq. and 46 U.S.C. App. 1901, et seq. In other words, it limits the term to specified federal felony offenses. Regarding "crime of violence," (c)(3) defines the term generically and does not specify whether it is limited to federal offenses. However, § 924(c)(1), which is within the same subsection, also employs the term "crime of violence" and limits the term to federal offenses.1 7. In United States v. McLemore, 815 F.Supp. 432 (S.D. Ala. 1993), the defendant was convicted of violating § 924(h) for transferring a firearm for purposes of solicitation to commit murder, a state crime. The defendant filed a motion for arrest of judgment. The district court considered the language of § 924(h), its scant legislative history, and the language of the statute as a whole, and

It creates a penalty for the use or carrying of a firearm "during and in relation to any crime of violence . . . for which the person may be prosecuted in a court of the United States."
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concluded that § 924(h) is ambiguous as to whether a state crime can serve as the predicate "crime of violence". It therefore applied the rule of lenity, construing the statute narrowly, resolving all doubt in favor of the defendant, and granted the motion in arrest of judgment on the grounds the indictment failed to charge a federal offense. This was affirmed by the Eleventh Circuit in United States v. McLemore, 28 F.3d 1160 (11th Cir. 1994). (Copies of these decisions are attached.) 8. Certainly, if a state law crime cannot be a predicate crime of violence for purposes of § 924(h), violations of the CNMI Code cannot be. Thus, William's "conviction" under § 924(h) is not a conviction for a federal offense. 9. 18 U.S.C. § 3592(c), the statutory aggravating factor alleged in the NOI, requires a prior conviction for a "Federal or State offense" that involved the use or attempted use of a firearm against another. The crimes of violence charged in Count Three of the CR99-00018 information are neither Federal nor State crimes. Therefore, William's conviction for violation of 18 U.S.C. § 924(h) must be stricken from the NOI. Wherefore, William respectfully requests the Court to strike the alleged conviction of 18 U.S.C. § 924(h) from the government's NOI. Dated: March 21, 2006
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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 21, 2006 I electronically filed the foregoing Motion To Strike Conviction Under 18 U.S.C. § 924(h) From The Government's NOI As A Basis For The Alleged Statutory Aggravating Factor Set Out In Of 18 U.S.C. § 3592(c)(2) [Wm DP-27] with the Clerk of the Court using the CM/EFC system which will send notification of such filing to the following email addresses: [email protected] [email protected] [email protected] [email protected] By: s/ Susan L. Foreman Nathan Chambers Chambers, Dansky & Mulvahill 1601 Blake Street, Suite 300 Denver, CO 80202 303-825-2222

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