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Tuesday, July 30, 2013
Ind. Decisions - 7th Circuit decides one Indiana case today
In UNITED STATES OF AMERICA v. MICHAEL L. BROCK (SD Ind., McKinney), a 15-page opinion, Judge Hamilton writes:
Defendant-appellant Michael Brock was convicted in a jury trial on three counts of possessing a firearm as a convicted felon. See 18 U.S.C. § 922(g)(1). He was sentenced to a fifteen-year mandatory minimum term of imprisonment under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1). In this appeal, he challenges his convictions and his sentence. The challenge to the convictions is based on Mr. Brock’s wife’s testimony against him at trial. The district court found that the marital evidentiary privileges had been waived when she testified at his pretrial detention hearing. Over her objection, she was then ordered to testify against Mr. Brock at trial. We agree that the spousal communication privilege was waived, and we find that Mr. Brock lacks standing to challenge the finding that the separate spousal testimonial privilege was waived.ILB: Here is the June 27, 2013 opinion in U.S. v. Miller.
Mr. Brock’s challenge to his sentence depends on whether unlawful possession of a machinegun counts as a “violent felony” under ACCA. In United States v. Upton, 512 F.3d 394 (7th Cir. 2008), we held that unlawful possession of a sawed-off shotgun counted as a violent felony under ACCA. Applying Upton, the district court ruled that possessing a machinegun was also a violent felony and that Mr. Brock’s three separate convictions for possessing machineguns triggered ACCA. Although the district court properly applied controlling circuit law, we have recently overruled Upton on this point, holding now that unlawful possession of a sawed-off shotgun no longer counts as a violent felony. United States v. Miller, ___ F.3d ___ (7th Cir. 2013). The reasoning of Miller applies equally to unlawful possession of a machinegun, so we vacate Mr. Brock’s sentence and remand for sentencing.
Posted by Marcia Oddi on July 30, 2013 09:41 PM
Posted to Ind. (7th Cir.) Decisions