Wednesday, February 25, 2009

Let The Burglar Beware

United States v. Johnson, No. 08-2296-cr (2d Cir. February 25, 2009) (Cabranes, Wesley, CJJ, Korman, DJ) (per curiam)

Defendant Johnson stole a firearm during a burglary, and pled guilty to being a felon in possession of that same gun. At sentencing, he received a four-level enhancement for possessing it in connection with “another felony,” the burglary. The district court based the enhancement on a 2006 application note that provides that the “another felony” enhancement applies where a defendant finds and takes a firearm during a burglary. Johnson argued that this violated the Ex Post Facto clause, since his offense occurred before the application note was promulgated.

The circuit affirmed. The application note was added to the guidelines to resolve a circuit split on the applicability of the enhancement, and was intended merely to “clarify” that it applied to burglaries involving the theft of firearms. The note neither “altered the law of this Circuit nor otherwise changed a prior binding interpretation of” the relevant guideline. Therefore, it did not implicate the Ex Post Facto clause.



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