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3 Things Attorneys Should Know About the "Firearm Minimum"

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by: Ryan Scott • December 30, 2019 • one comment

The "firearm minimum" is a short-hand way to describe a floating element that can be attached to any felony and which, if found, can potentially enhance the defendant's sentence. The element can usually be found in the indictment in the language "with a firearm" added to the title of each offense, as well as "The defendant used or threatened the use of a firearm" added below the other elements. Either one is sufficient.

If added to one count, it is usually added to all felonies from the same criminal episode. But the sentence enhancement can only be imposed on one count per criminal episode.

The statutory authority is ORS 161.610.

There are three things attorneys should be aware of, if their client faces a potential firearm enhancement.

(1) A defendant who is sentenced under the enhancement is not eligible for AIP or transitional leave, but he or she is eligible for good/earned time.

The relevant statutory language is:

"Except as provided in ORS 144.122 and 144.126 and subsection (5) of this section, in no case shall any person punishable under this section become eligible for work release, parole, temporary leave or terminal leave until the minimum term of imprisonment is served, less a period of time equivalent to any reduction of imprisonment granted for good time served or time credits earned under ORS 421.121, nor shall the execution of the sentence imposed upon such person be suspended by the court."

That language is not a model of clarity, but if read carefully, you'll see that good time is permitted and other forms of release aren't.

A judge can still deny good time, just as they can in other prison cases, but they need a reason to do so. If the judge denies good time but does not give a reason, defense attorneys would be wise to ask the judge to do so "for meaningful appellate review." As I've written before, the appellate courts will usually defer to a trial judge's denial of good time, unless the judge makes a legal error in doing so. When they are asked to put on the record their reason for denying good time, the chance of legal error is surprisingly high.

(2) The firearm enhancement can result in the merger of guilty verdicts that might not otherwise occur.

This topic could be, and may eventually be, the subject of a lengthier and independent blog post. The short version is this: the Court of Appeals has held that trial courts should merge the crimes of Unlawful Use of a Weapon (UUW) and Felon in Possession (FIP) into a single count of FIP when the latter charge includes the firearm minimum. That ruling has subsequently been called into doubt but not (yet) overruled. The doubt is based in part on the theory that UUW requires the firearm in question is used against another person, but Felon in Possession of a Firearm with a Firearm is satisfied if the gun is discharged but not at anyone in particular. Trial attorneys can increase their chances of appellate success if they ask for the UUW to merge with any other felonies that (1) also have the enhancement pled and (2) involve the same victim as the UUW count.

(3) The firearm minimum should only be imposed on the primary offense (probably)

The primary offense is the crime with the highest crime seriousness level (CSL) of all the charges from one criminal episode. And per the Oregon Administrative Rules, the primary offense is to be sentenced first. But the crime with the highest CSL is often a crime like robbery in the first degree, which carries a mandatory minimum of 90 months in prison. If the firearm minimum is imposed on that count, and it's the five year sentence from a first-time offense, the sentence enhancement does not serve to actually enhance the sentence (although robbery in the first degree, almost always, involves a firearm, which is the reason it carries the lengthy mandatory minimum in the first place).

The state will often ask the court not to defer imposing the firearm minimum on the primary offense, saving it instead for a less-serious charge, such as felon in possession, where -- if the counts are run consecutively -- the imposition of the five year minimum would have a significant impact on the defendant's sentence.

Is this lawful? Can the court decline to impose the firearm minimum on the crime it is sentencing first, and then impose it on a later count? The issue is currently on appeal. Defense attorneys should also be aware that the analysis is subtly different if its the first gun minimum the defendant is facing or their second. Unless and until this issue is decided against defendants, trial attorneys need to object to the minimum being imposed on any count other than the primary offense.