Friday, July 23, 2004

US v. Terrell - District Court of Nebraska

Judge Joseph F. Bataillon issued an opinion in US v. Terrell in which he concludes that the defendant's sentence, pursuant to a plea agreement, can be imposed under the guidelines "as long as the court does not rely on facts that were not found by a jury or were not admitted by the defendant."

In this case, that compels the following conclusion:


The defendant has admitted to being a felon in possession of firearms and ammunition. The government urges that his sentence should be enhanced because the weapon he possessed was a short shotgun and a short shotgun is characterized under the Guidelines as a "destructive device." n5 Although the indictment sets out the make and model of the weapons that the defendant possessed, there is no evidence that either of these weapons was a short shotgun, a sawed-off shotgun, or a destructive device. Statements in the PSR are not evidence. United States v. Wise, 976 F.2d 393, 404 (8th Cir.1992) (en banc). If the government had desired to punish the defendant for possession of a short shotgun, sawed-off shotgun, or destructive device, it could have prosecuted him under the statute that criminalizes possession of such devices. See 26 U.S.C. § 5861.


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