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Court upholds sentence boost for felony firearm use

BOSTON, MA (The Daily Record Newswire) -- A mandatory minimum sentence for using a gun during a felony cannot be avoided because it was tacked on to another mandatory minimum sentence, the U.S. Supreme Court has ruled.

The consolidated cases involve defendants in two unrelated cases convicted of federal drug and firearm offenses. In both cases, the government sought to add a consecutive 5-year minimum sentence under 18 U.S.C. §924(c), a sentence-enhancing law criminalizing the use or carrying of a firearm in the commission of a crime of violence or drug trafficking.

The defendants objected, citing the language of §924, which provides that the 5-year sentence is applicable "except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law." Since they were already sentenced to mandatory minimums, they argued the additional 5-year penalty should run concurrently, not consecutively.

The district court in each case disagreed, and the defendants were sentenced to additional consecutive 5-year prison terms.

On appeal, the 3rd and 5th Circuits affirmed the sentence.

The U.S. Supreme Court consolidated the cases, granted certiorari and affirmed the lower courts.

In an opinion joined by all the other members of the Court except Justice Elena Kagan, who recused herself, Justice Ruth Bader Ginsburg wrote that the "except" clause referred not to any other mandatory minimum, but specifically to another sentence under a law directed to the same conduct prescribed by §924(c).

Congress intended to add an extra penalty for the use of a firearm during the commission of other felonies, and the defendants' interpretation of the "except" clause would run counter to that intent, the Court reasoned.

"[A] defendant is subject to a mandatory, consecutive sentence for a§924(c) conviction, and is not spared from that sentence by virtue of receiving a higher mandatory minimum on a different count of conviction," Ginsburg wrote.

U.S. Supreme Court. Abbott v. U.S. and Gould v. U.S., consolidated. No. 09-479. Nov. 15, 2010. Lawyers USA No. 993-2428.

Court to decide if DMV records must be suppressed

BOSTON, MA (The Daily Record Newswire) -- The U.S. Supreme Court will decide whether a criminal defendant's driving record could be used as evidence when it came to the attention of police as the result of an illegal traffic stop.

The Court agreed to review a case from New York's highest court involving a defendant who was convicted of operating a motor vehicle without a license.

Police stopped the defendant's vehicle because he was playing loud music. The defendant was arrested after a records check showed that his license had been suspended at least ten different times.

The defendant argued that his driving record should have been suppressed at trial because it only came to the attention of police as the result of an unlawful traffic stop.

The state court concluded that the defendant's motor vehicle records were identity-related evidence not subject to the Fourth Amendment's exclusionary rule.

"[A] defendant may not invoke the fruit-of-the-poisonous-tree doctrine when the only link between improper police activity and the disputed evidence is that the police learned the defendant's name," the court said.

Tolentino v. New York, No.09-11556. Certiorari granted: Nov. 15, 2010. Ruling below: 2010 N.Y. Slip Op. 02643 (2010).

Court Justices Scalia, Breyer take sparring match on road

BOSTON, MA (The Daily Record Newswire) -- If you've ever visited the U.S. Supreme Court to watch oral arguments, changes are good that you saw a little verbal jousting between Justices Antonin Scalia and Stephen Breyer. The Court's two most verbal (and funniest) jurists don't see eye to eye on a number of judicial philosophies.

But an audience in Lubbock Texas didn't have to travel to Washington to see the two justices spar Friday. Scalia and Breyer brought their battle to the Lubbock Memorial Civic Center.

Round 1: The death penalty

"There's not an ounceworth of room for debate as to whether it constitutes cruel and unusual punishment because, at the time the Eighth Amendment was adopted -- the cruel and unusual punishments clause -- it was the only punishment for a felony," said the Sicilian originalist from Queens, according to the Associated Press. "It was the definition of a felony. It's why we have Western movies because horse thieving was a felony."

"And indeed there were whipping posts where people were flogged virtually to death up until the middle of the 19th century," said the pragmatist Frisco Kid. "If we had a case like that today I'd like to see how you'd vote."

"There's a lot of stuff that's stupid that's not unconstitutional," Scalia retorted later.

Round 2: Statutory interpretation

"There are ways of determining how and what the legislature was thinking of ... to determine what is the object of this law," Breyer said, according to The Lubbock Avalanche-Journal.

"The only thing you know for sure is the words of the statute," Scalia said. "I don't at all look to what I think the legislature thought. I frankly don't care what the legislature thought."

"That's the problem," Breyer quipped.

Round 3: Changing the Constitution

"There's very little that I would change," Scalia said. "I would change it back to what they wrote, in some respects. The 17th Amendment [which provides for U.S. senators to be elected by people instead of state legislatures] has changed things enormously. We changed that in a burst of progressivism in 1913, and you can trace the decline of so-called states' rights throughout the rest of the 20th century. So, don't mess with the Constitution."

"There have been lots of ups and downs in the enforcement of this Constitution, and one of the things that's been quite ugly -- didn't save us from the Civil War -- is that there is a system of changing the Constitution through amendment," Breyer said. "It's possible to do but not too easy."

While the verbal fireworks are fun, Breyer said the two don't always lock rams.

"From the outside you think we disagree about everything, but we're unanimous in our court about 40 percent of the time," Breyer said.

But, Breyer added later: "We can disagree about almost anything."

Published: Mon, Nov 22, 2010

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