United States v. Ross, No. 13-4447 (3d Cir. 2015)
Annotate this CaseIn 2004, an undercover detective made four purchases of cocaine from Ross. Surveillance officers watched Ross leave a Chester residence and drive to the agreed-upon location. The detective arranged another purchase and obtained a warrant to search that residence. Officers arrested Ross as he left the house and found cocaine and a loaded handgun in his car. Searching the residence, they discovered a semi-automatic handgun, and a loaded 9mm pistol with a modified firing pin enabling it to fire continuously. An ATF expert testified that the pistol, as modified, met the definition of a machinegun, 26 U.S.C. 5845(b). Ross was convicted of cocaine distribution, 21 U.S.C. 841(a)(1); possession with intent to distribute 500 grams or more of cocaine, 21 U.S.C. 841(a)(1); carrying a firearm in drug trafficking, 18 U.S.C. 924(c)(1); possession of a machinegun in furtherance of drug trafficking, 18 U.S.C. 924(c)(1)(B)(ii); possession of a machinegun, 18 U.S.C. 922(o); and possession of a firearm by a convicted felon, 18 U.S.C. 922(g)(1). The court did not instruct the jury – and defense counsel failed to object– that the government was required to prove beyond a reasonable doubt that he had specific knowledge of the firearm’s characteristics that made it a “machinegun.” The Third Circuit affirmed his conviction. He unsuccessfully moved to vacate, set aside, or correct his sentence under 28 U.S.C. 2255, arguing that counsel rendered ineffective assistance in failing to challenge the jury instruction and the sufficiency of the evidence. Because Ross had not satisfied a threshold requirement of section 2255, the Third Circuit remanded with directions to dismiss.
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