Divided Third Circuit rejects Second Amendment challenge to gun-possession law by person convicted of driving drunk

Holloway v. Attorney General—civil / Second Amendment—reversal—Shwartz

The federal statute that makes gun possession a crime for persons convicted of crimes punishable by imprisonment for more than a year is not unconstitutional as applied to a defendant convicted of driving under the influence of alcohol, the Third Circuit held today. Under the Third Circuit’s fractured 2016 en banc ruling in Binderup, criminalizing gun possession by persons convicted of crimes does not violate the Second Amendment if the prior conviction is for a “serious crime.” The court held that DUI qualifies as a serious crime, looking to definitions, precedent, and the severity of the maximum sentence.

Judge Fisher dissented, arguing that the prior conviction was not for a serious crime because it was classified as a misdemeanor, did not involve use of force, and resulted in a short actual sentence.

Both opinions brim with formalist reasoning generally, and specifically with analysis of how to determine what aspects of the various Binderup opinions are controlling precedent. Binderup itself endeavored to identify what was binding on future panels, and—perhaps inevitably—the majority and the dissent here disagree about whether that was controlling, too. It’s a fascinating, baroque mess.

Joining Shwartz was Fuentes, with Fisher dissenting. Arguing counsel were Thais-Lyn Trayer for the government and Joshua Prince of Prince Law Offices for the challenger.


U.S. v. Hodge, Jr.—criminal—affirmance—Smith

The First Step Act reduces mandatory-minimum criminal sentences for certain gun-crime defendants, and it applies to prior-convicted defendants “if a sentence for the offense has not been imposed” as of the date the Act became law. Here, the defendant was convicted and sentenced, then the Third Circuit vacated his sentence and remanded for resentencing, then the First Step Act took effect, before the resentencing occurred. The district court ruled that the Act didn’t apply to the defendant, and today the Third Circuit affirmed in an elegantly concise opinion.

Joining Smith were McKee and Shwartz. Arguing counsel were Jennifer Blecher of the D.V.I. U.S. Attorney’s office for the government and Gabriel Vellagas of the D.V.I. defenders for the defendant.