Conviction for Felonious Possession and Sentence Under the ACCA
In US v. Neff, No. 08-3643, the Seventh Circuit faced a challenge to a conviction for possession of a firearm by a felon and an enhanced sentence based on defendant's status as an armed career criminal.
First, the court addressed the issue of the time limits in Rule 4(b) and concluded that it is a claim-processing rule, rather than jurisdictional, that can be forfeited. The court then addressed defendant's claim that Amendment 709 was clarifying and that it applied retroactively to reduce his sentence. In rejecting his claim, the court held that Amendment 709 is substantive, and as such, it is not retroactive.
Moreover, even if Amendment 709 was clarifying, the sentencing guidelines authorize the use of a clarifying amendment only when the clarifying guidelines precedes the sentence. Here, defendant's sentence does not meet this requirement because he was sentenced in 1994 and Amendment 709 became effective in 2007.
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