The Criminal Defense Blog


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In United States v. Lucas, Francisco Lucas, Jr. pleaded guilty to unlawful possession of a firearm. At sentencing, the district court imposed a guideline enhancement pursuant to U.S.S.G. § 2K2.1(a)(4)(B) based on evidence that the offense involved a semiautomatic firearm capable of accepting a large capacity magazine. The term "large capacity magazine" is further defined in Application Note 2 to § 2K2.1 in terms of the ability to fire many rounds without reloading and the capability to accept more than 15 rounds of ammunition.The district court applied a heightened base offense level under U.S.S.G. § 2K2.1(a)(4)(B) based a finding that Lucas's magazine could accept more than 15 rounds. Tyler Criminal Defense Blog

During sentencing, the parties disputed whether Lucas's base offense level should be increased under U.S.S.G. § 2K2.1(a)(4)(B), which applies if the offense involved a "semiautomatic firearm that is capable of accepting a large capacity magazine." The government filed an expert report from a federal agent who reviewed the photographs and video of Lucas's contraband. The agent stated that Lucas's firearm looked like a Glock model 22, .40 caliber pistol and that Lucas's magazine looked like an extended-length magazine capable of accepting more than 15 rounds of ammunition. The agent acknowledged the commercial availability of extended magazines that have been modified with "blockers" to accept fewer than 15 rounds. Nonetheless, the agent observed that he had never personally encountered such a modified magazine in California. The agent concluded that without a physical inspection of the firearm and magazine, he could not conclusively determine whether Lucas's magazine was equipped with such a blocker or could have accepted more than 15 rounds at the time the photographs were taken.

The Ninth Circuit held that the government did not convincingly demonstrate that Lucas's magazine could accept more than 15 rounds. It criticized the district court's reliance on the government's expert agent, whose views were based on visual evidence from photos and videos and were, at best, equivocal.

Without physical evidence, the government largely relied on its expert agent, who was, at most, equivocal. The agent acknowledged that without physical inspection, he could not conclusively state whether the magazine could in fact accept more than 15 rounds or whether it was instead modified to accept fewer. Nor did the agent explain the prevalence of any type of magazine in the community; he only relayed his personal experience with modified magazines. On this record, the district court's finding that the government established the capacity of Lucas's magazine by clear and convincing evidence was clear error. See United States v. Graf610 F.3d 1148, 1157 (9th Cir. 2010) ("A finding is clearly erroneous if it is illogical, implausible, or without support in the record.").

The Ninth Circuit reversed and remanded for resentencing.

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