Federal Procedure,  Ninth Circuit,  Sentencing

Grandstanding Does Not Equal Intent

I watched the movie Minority Report last night.  It’s about a “precrime” department of the Washington, D.C. police department around 50 years in the future that, through the use of visions recorded from three gifted “precognitive” individuals, arrests persons for future murders they were going to commit.  The murder rate in D.C. drops to zero.  I recommend the movie, especially if you’re a sci-fi fan.

Coincidentally, today the Ninth Circuit issues United States v. Jimison, case no. 06-30417 (July 16, 2007), in which Judge Kozinski frames the issue as “when a defendant can be subject to a sentencing enhancement” under U.S. Sentencing Guidelines “for possessing a firearm in connection with an offense that he never commits.”  Specifically, the issue in this case is whether the evidence was sufficient to support an enhancement to felony firearms possession where the possession by the defendant is “with knowledge, intent, or reason to believe that [the firearms] would be used or possessed in connection with another felony offense.”  U.S.S.G. § 2K2.1(b)(6) (formerly § 2K2.1(b)(5)). 

The defendant, after beating up his girlfriend, stole her car.  He “stumbled upon” an unlocked ranch house from which he stole some guns, then went to a friend’s home.  Clearly distraught, he told is friend he thought he had killed his girlfriend and that he was “going to go Rambo.”  (Link added.)  Is this enough for the sentencing enhancement?

The Ninth Circuit (without benefit of precognitives, of course) says it is not enough.  The defendant’s “Rambo” remark is “an offhand comment” that “lacks sufficient specificity to establish that [defendant] formed a firm intent to shoot it out with the police.”  The court finds that lacking any evidence of context to the contrary, the defendant’s remark is the equivalent of a parent who says “I’m going to wring his neck” upon learning that is child his in trouble at school again.

It also didn’t hurt that the defendant called the owner of the guns, apologized and arranged to return them!  Why can’t all criminals be so polite?