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September 23, 2008 5:32 PM

Opponents of Tough Federal Sentencing Rules Take Up Heller for Help

Posted by Zach Lowe

The federal judge that sentenced Weldon Angelos to 55 years and one day in prison in 2004 said his hands were tied by mandatory-minimum gun laws, calling his own sentence "unjust, cruel, and even irrational."

Now a law professor and a group of Am Law 200 lawyers are challenging the sentence on unique grounds: that Heller v. District of Columbia, the case celebrated as a definitive victory for gun rights, protects Angelos and others like him convicted of gun crimes.

Douglas Berman, a law professor at the Moritz College of Law at The Ohio State University, devised the strategy with help from attorneys at Steptoe & Johnson and Snell & Wilmer.

Angelos is hoping to have his sentence overturned by the U.S District Court in Salt Lake City after a federal appeals court upheld it in 2006 and the U.S. Supreme Court denied cert.

Berman knows Heller's core supporters--the National Rifle Association, for example--don't typically overlap with individuals who are tough on criminal sentences. But he believes Heller should make it harder to tack dozens of years on to a prison sentence simply because someone happens to own a gun.

"Most people think I'm crazy at first," says Berman, who writes the popular blog Sentencing Law and Policy. "I'm fighting people on the left who think this guy's a bad person just because he touched a gun, and I'm fighting people on the right who like guns but don't like people like (Angelos) with guns."

Three gun charges carrying a combined mandatory minimum sentence of 55 years account for all but one day of Angelos's prison sentence.

The first-time offender sold marijuana to an informant three times in 2002. The informant said he saw a handgun on Angelos during two of the deals--once in the console of Angelos's car, and once in an ankle holster. Angelos never displayed or threatened to use the gun (which was determined to have been stolen), but the government charged Angelos with two counts of possession of a firearm in furtherance of a drug crime. The first count carries a minimum five-year sentence. Each subsequent count nets another 25 years.

Angelos's legal team has questioned the informant's story about the guns.

Officers searched Angelos's homes and found several more guns, all but one legally registered and owned, according to attorneys on both sides of the case. Still, prosecutors argued that Angelos used those guns in furtherance of a drug crime and added on another 25-year mandatory count.

It's that last count that comes close to violating the spirit of Heller, Berman says.

"Heller says the Second Amendment has to mean something," Berman says. For Berman and his team, it means that so much extra punishment simply for owning or carrying guns qualifies as cruel and unusual.

Jurors found Angelos innocent of two other 25-year counts based on guns police found at a home Angelos paid rent on for his girlfriend. They also found three pounds of marijuana, more than $18,000 in cash, scales, and other evidence, says Robert Lund, the lead prosecutor on the case.

Lund says the drug evidence and the stolen guns blast a hole in Berman's Heller-themed motion.

Berman turned to Steptoe associate Shawn Davisson, who studied under him at OSU, to help with the case. Davisson researched the case under partner Brian Heberlig, and they helped Berman and the Snell team--associate Troy Booher and partner Michael Zimmerman--draft a motion to vacate the sentence. A hearing date has not been set.

"It seems like a long shot," Booher says of Berman's Heller argument. "But then Heller came down the way it did, and now I think it's a very interesting use of that case."

Heberlig, of Steptoe, says under Heller, it is unfair to punish Angelos with an extra 25 years "based solely on handguns passively stored in Angelos's home."

Lund disagrees.

"They misrepresent the evidence and misunderstand the case," Lund says of the team. "They have an argument that won't go anywhere."

Berman knows Angelos isn't the most sympathetic figure upon whom to merger Heller with the cause of reforming gun laws.

"I think the NRA types will lose the courage of their convictions," Berman says. "I'll be surprised if they come out and support this effort."

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The very existence of "drug crimes" violates the Constitution. In the absence of a Constitutional Amendment analogous to Prohibition. Such laws stand only because F.D.R. and Congress intimidated the Supreme Court with the threat greatly enlarge it, packing it with enemies of the Constitution.

Be that as it may, if Angelo was already a convicted felon there is no case -- the government can remove _any_ Constitutional right it pleases from such people. If Angelo was not already a convicted felon at the time of his arrest, then you have a case.

I don't think the NRA will support your efforts, but neither do I think the NRA will oppose them. We simply don't hate people such as Angelo so much that we would sacrifice our own Liberty in order to take theirs.

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