Thursday, March 24, 2011

Firearm enhancement element not retroactively applied when precedent decided before conclusion of direct appeal

 Wiggins v. Standsberry, No. 3:10cv298-HEH, 2011 WL 476442 (E.D. Va. Feb. 4, 2011):

The Crime.  Wiggins and three others robbed a bank in Raleigh, North Carolina using a pistol and a sawed-off shotgun.  Wiggins's sentence for the firearms offense was enhanced because the defendants used a short-barreled shotgun, triggering the enhancement provision of 18 U .S.C. § 924(c).

On Appeal & the Circuit Split.  On appeal, Wiggins argued that the sentencing court erred when it enhanced the sentence imposed for the firearms because the Court did not submit to the jury the question of whether a short-barreled shotgun was used.  Wiggins did not raise the issue at trial; thus, the United States Court of Appeals for the Fourth Circuit reviewed the Sentencing Court's enhancement for plain error.  The Court recognized that a circuit split existed regarding whether the enhancement provision was an element of the crime (requiring submission to the jury) or merely a sentencing factor (permitting judicial determination). Nevertheless, the Fourth Circuit concluded that "Wiggins cannot show that the error 'seriously affects the fairness, integrity, or public reputation of judicial proceedings' because the evidence that [Wiggins] used or possessed a short-barreled shotgun in furtherance of the bank robbery was 'overwhelming' and 'essentially uncontroverted.'"

Supreme Court Decides Castillo. Twenty-four days before the Supreme Court denied Wiggins's petition for a writ of certiorari, the Supreme Court issued its opinion in Castillo v. United States, 530 U.S. 120 (2000).  In Castillo, the Supreme Court resolved a Circuit split regarding whether the enhancement provisions of 18 U .S.C. § 924(c) were elements of the crime or merely sentencing factors. The Supreme Court held that the enhancement provisions were elements of the crime which must be proven to a jury.

The Habeas Petition.  Wiggins filed a petition under 28 U.S.C. § 2241 for a writ of habeas corpus, arguing that Castillo required the government to submit to the jury the question regarding whether a short-barreled shotgun was used.  To qualify for § 2241 relief, however, Wiggins had to show that, inter alia, subsequent to his direct appeal and first § 2255 motion, the substantive law changed such that the conduct of which he was convicted is deemed not to be criminal.  Wiggins could not meet this standard because (1) Castillo was decided before his direct appeal ended, and (2) Castillo did not de-criminalize the offense, it merely determined that the offense conduct was a separate aggravated offense.  Accordingly, Wiggins must proceed under § 2255.

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