United States v. Palos, No. 19-4186 (6th Cir. 2020)
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Police searched Palos’s residence on suspicion of drug trafficking and found narcotics, drug paraphernalia, and a firearm. Palos admitted that he had purchased the firearm “off the streets.” It was later confirmed to be stolen. Palos, previously convicted of two separate drug trafficking offenses in state court, pleaded guilty as a felon in possession of a firearm, 18 U.S.C. 922(g)(1). With a Guidelines range of 87-108 months, he was sentenced to 63 months’ imprisonment.
The Sixth Circuit vacated his sentence, in part. Palos's 2010 conviction under Ohio Revised Code 2925.03(A)(1), which criminalizes “knowingly . . . “sell[ing] or offer[ing] to sell a controlled substance” no longer qualifies as a “controlled substance offense” so that his Guidelines base offense level was miscalculated. Statutes that criminalize offers to sell controlled substances are too broad to categorically qualify as predicate ‘controlled substance offenses.’” The court upheld a sentencing enhancement for possession of a stolen firearm, rejecting an argument that Palos had no knowledge that the firearm was stolen. The court noted the absence of a scienter requirement in U.S.S.G. 2K2.1(b)(4). Palos’s firearm was stolen at the time Palos unlawfully possessed it and section 2K2.1(b)(4) is a strict liability enhancement.
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