United States v. Alonzo Hall, Sedrick Latroy McKinney

77 F.3d 398, 1996 U.S. App. LEXIS 4452, 1996 WL 82493
Court of Appeals for the Eleventh Circuit·Decided March 13, 1996·No. 93-3538·Published·Cited by 78 cases

Opinions

EDMONDSON, Circuit Judge:

Alonzo Hall and Sedrick McKinney appeal their convictions and sentences for felon in possession of a firearm and ammunition.

In 1992, Hall and McKinney were with a group of people outside a nightclub when McKinney's sister began to fight with her boyfriend. McKinney told Hall to hand him a gun. Hall handed McKinney a semi-automatic weapon. McKinney then shot the boyfriend. Each Defendant was charged with possession of a firearm as a convicted felon in violation of 18 U.S.C. § 2 and § 922(g) (first count) and possession of a quantity of ammunition as a convicted felon in violation of 18 U.S.C. § 2 and § 922(g) (second count).

The jury convicted Defendants. Hall was sentenced to 120 months for the first count and ten months for the second count to be served consecutively and was ordered to pay $100 in special assessments. The district court classified McKinney as an armed career criminal and sentenced him to 262 months on each count to be served concurrently and ordered him to pay $100 in special assessments.

Judicial Limits on Closing Argument

Hall claims the district court improperly limited his closing argument. The district court has broad discretion over closing argument and will be reversed only if counsel is prevented from making all legal arguments supported by the facts. United States v. Gaines, 690 F.2d 849, 858 (11th Cir.1982).

A review of the record reveals that the district court impermissibly restricted defense counsel’s closing argument. Hall’s counsel first set out to explain some general principles of law, but the district court commanded him to proceed to a discussion of the facts. Hall’s counsel complied with the order and moved on to stress the inconsistent testimony of the only two government witnesses — Robert Bridges and Pete McIntyre — who implicated Hall. In concluding, Hall’s counsel sought to speak of and to apply the accepted definition of reasonable doubt to the inconsistent testimony of the two witnesses; again counsel was completely blocked.1

[401] For arguing points of law, we have held that counsel is confined to law that is included in the judge’s charge to the jury. See United States v. Trujillo, 714 F.2d 102, 106 (11th Cir.1983). Implicit in this rule is that counsel is allowed to point out legal concepts that will be included in the jury charge. Hall’s counsel was permitted to develop fully the factual inconsistencies in Bridge’s and McIntyre’s testimony. But, by refusing to allow Hall’s counsel to apply the accepted definition of reasonable doubt — a term which was included in the judge’s charge to the jury — to those inconsistencies, Hall’s counsel was denied the opportunity to make strongly the essential point that the inconsistencies raised reasonable doubt.

Hall’s counsel was entitled to speak to the jurors some about the concept of reasonable doubt. The district court abused its discretion in limiting Hall’s counsel too much as counsel delivered his closing argument. We reverse Hall’s conviction and remand for new trial in accordance with this opinion.

Armed Career Criminal Status

McKinney claims that his conviction for carrying a concealed firearm was improperly used to classify him as an armed career criminal under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e).2 McKinney argues that, because possession of a firearm by a convicted felon is not a violent felony under the ACCA, see United States v. Oliver, 20 F.3d 415, 418 (11th Cir.1994), the carrying of a firearm is also no violent felony under the ACCA. McKinney relies on United States v. Whitfield, 907 F.2d 798, 800 (8th Cir.1990), which held that carrying a concealed weapon is no violent felony under the ACCA.

The government argues that the crime of possession of a firearm by a felon differs significantly from the crime of carrying a concealed weapon. The government says “felon in possession” is criminal just because of the felon’s status: mere possession of a firearm by a felon — even an unloaded weapon stored in the felon’s basement — can be criminal. But carrying a concealed weapon is an active conduct crime: the danger of carrying a concealed weapon extends beyond mere possession — the person has taken the extra step of having the weapon immediately accessible for use on another. So, the government claims that this act of readiness makes carrying a concealed weapon a violent felony.

Violent felony under the ACCA includes an act of juvenile delinquency involving the use or carrying of a firearm, punishable for a term exceeding one year3 if committed by an adult, involving conduct that presents a serious potential risk of physical injury to another. 18 U.S.C. § 924(e)(2)(B). (The pertinent language of the ACCA does not include simple possession of a firearm). Carrying a concealed weapon is conduct that poses serious potential risk of physical injury and, so, falls under the definition of violent felony. The [402] district court did not err in using McKinney’s conviction for carrying a concealed weapon to enhance his sentence under the ACCA.'4

Separate Convictions and Sentences

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United States v. Alonzo Hall, Sedrick Latroy McKinney, 77 F.3d 398, 1996 U.S. App. LEXIS 4452, 1996 WL 82493 (11th Cir. 1996).

77 F.3d 398 (United States v. Alonzo Hall, Sedrick Latroy McKinney) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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