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Updated Argument on Gun Minimum

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by: Ryan Scott • September 24, 2023 • no comments

Since my last blog post on the gun minimum in mid-August, I have significantly revised my memo that argues that the gun minimum must be imposed on the primary offense and cannot be deferred to a later (and non-M11) count.

I have also added a constitutional argument.

Be forewarned that cutting and pasting have made the formatting a bit wonky, but with that caveat, here is the substance of the argument:

There can be no dispute that murder in this case is the primary offense. 213-003-0001(17) (“’Primary offense’ means the offense of conviction with the highest crime seriousness ranking. If more than one offense of conviction is classified in the same crime category, the sentencing judge shall designate which offense is the primary offense.”) As the name suggests, the primary offense is to be sentenced first. In fact, the entire sentencing guidelines is premised on the idea of the primary offense being sentenced first.
When imposing sentencing on the charge of murder in the second degree with a firearm, the court must either impose the firearm minimum under ORS 161.610(4) or suspend the sentence under ORS 161.610(5)(b):
If it is the first time that the defendant is subject to punishment under this section, rather than impose the sentence otherwise required by subsection (4)(a) of this section, the court may "impose a lesser sentence in accordance with the rules of the Oregon Criminal Justice Commission."
Self-evidently, this court cannot impose a guidelines sentence on murder, so ORS 161.610(5)(b) may not even be an option, leaving us with only one choice, i.e., imposing the gun minimum on the murder count. But even if this court were to find that ORS 161.610(5)(b) authorized the non-imposition of the 60 month sentence, despite the fact that the defendant would still serve more than 60 months, there is still a legal footprint. That is to say, by exercising this court’s discretion under ORS 161.610(5)(b), there is a still a legal effect, regardless of whether the 60 months of the defendant’s life sentence is counted towards the gun minimum.
Specifically, ORS 161.610(4)(b) imposes a 10 year minimum on a subsequent firearm conviction. A court’s decision to suspend the 60-month sentence is still an application of the statute, because it still has legal effect under 161.610(4)(b):
(b) Upon conviction for such felony committed after punishment pursuant to paragraph (a) of this subsection or subsection (5) of this section, 10 years, except that if the firearm is a machine gun, short-barreled rifle, short-barreled shotgun or is equipped with a firearms silencer, the term of imprisonment shall be 20 years.
Nevertheless, the state asks this court to defer the gun minimum from the primary count to count 3, so that the 60-month sentence is then run consecutively to the murder. This would not be a lawful sentence.
First, of all, there is no authority for the State’s position that a sentencing court can “defer” the gun minimum on the primary count and then impose it on a subsequent count. On a first conviction for a gun minimum charge, the court can either impose the gun minimum or impose a lesser-sentence after finding mitigating factors. It does not say it can be deferred.
Furthermore, as demonstrated by the citations above, even if this court were not to count 60 months of the defendant’s murder sentence to the firearm minimum, the statute – ORS 161.640 – continues to have operational effect, since it would result in a mandatory ten-year minimum on the second gun minimum conviction. It still leaves a legal footprint. Since that footprint remains, the subsequent imposition of a gun minimum sentence on count 3 would violate the prohibition against multiple gun minimum sentences per case.
State v. Pouncey, 303 Or App 365 (2020), is not to the contrary. Defendant in that case made an argument that the case law from the Court of Appeals stated that the firearm minimum had to be imposed on the count sentenced first. That was inaccurate. Case law had not previously addressed this issue at all. Because the defendant misstated the court’s case law, the Pouncey court – somewhat curtly – dismissed the argument without addressing the merits. (“We also reject defendant's assignment of error on the firearm-minimum-sentence issue, because his argument misstates our case law regarding ORS 161.610(4).” [Emphasis added.])
In other words, it is still an open question as far as the appellate courts are concerned because the court has never been squarely presented with the issue, especially not in the way articulated this memorandum.
Nevertheless, the statutes and administrative rules are not reasonably in dispute.

Please e-mail me for the full memo.