Eleventh Circuit Court of Appeals - Published Opinions
Thursday, July 27, 2017
Gill: Firearm Possession under 2K2.1 "Unlawful" if Prohibited by State Law
In United States v. Gill, No. 16-11306 (Ed Carnes, William Pryor, Dubina) (per curiam), the Court held that, for purposes of U.S.S.G. 2K2.1(b)(1), the "unlawful" possession of a firearm includes possession that is unlawful under state law. The defendant argued that, because the firearm in question was manufactured in Florida and did not move in interstate or foreign commerce, it was not unlawful under federal law and therefore should not count for purposes of 2K2.1. The Court rejected that argument, finding that the firearm was nonetheless unlawful under Florida's felon-in-possession statute, and that was sufficient for the Guideline. Although the government did not make that argument below, the Court was free to affirm on that alternative ground, because all of the relevant facts were contained in the PSI, those facts were not disputed, and the Court could take judicial notice of the Florida statute. Finally, the Court found that the facts demonstrated the defendant's possession of the firearm because there was joint custody of the safe in which it was found, and that safe contained other items admittedly belonging to the defendant.