September 28, 2008
Opponents of Tough Federal Sentencing Rules Take Up Heller for Help
The federal judge that sentenced Weldon Angelos to 55 years and one day in prison in 2004 said his hands were tied by mandatory-minimum gun laws, calling his own sentence "unjust, cruel, and even irrational."
Now a law professor and a group of Am Law 200 lawyers are challenging the sentence on unique grounds: that Heller v. District of Columbia, the case celebrated as a definitive victory for gun rights, protects Angelos and others like him convicted of gun crimes.
Douglas Berman, a law professor at the Moritz College of Law at The Ohio State University, devised the strategy with help from attorneys at Steptoe & Johnson and Snell & Wilmer.
Angelos is hoping to have his sentence overturned by the U.S District Court in Salt Lake City after a federal appeals court upheld it in 2006 and the U.S. Supreme Court denied cert.
Berman knows Heller's core supporters--the National Rifle Association, for example--don't typically overlap with individuals who are tough on criminal sentences. But he believes Heller should make it harder to tack dozens of years on to a prison sentence simply because someone happens to own a gun.
"Most people think I'm crazy at first," says Berman, who writes the popular blog Sentencing Law and Policy. "I'm fighting people on the left who think this guy's a bad person just because he touched a gun, and I'm fighting people on the right who like guns but don't like people like (Angelos) with guns."
Three gun charges carrying a combined mandatory minimum sentence of 55 years account for all but one day of Angelos's prison sentence.
The first-time offender sold marijuana to an informant three times in 2002. The informant said he saw a handgun on Angelos during two of the deals--once in the console of Angelos's car, and once in an ankle holster. Angelos never displayed or threatened to use the gun (which was determined to have been stolen), but the government charged Angelos with two counts of possession of a firearm in furtherance of a drug crime. The first count carries a minimum five-year sentence. Each subsequent count nets another 25 years. [Mark Godsey]
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