October 1, 2013 4th Circuit published opinion

United States v Royal

Royal was convicted of felon in possession of ammunition and given a career criminal sentence. The panel affirmed the conviction, reversed the sentence and remanded for resentencing. The panel held that just as the antique firearm exception in 18 USC 922 is an affirmative defense, a claim that the ammunition in question in only designed to be fired in firearms manufactured prior to 1898 is an affirmative defense which Royal did not raise and in any event there was sufficient evidence, including the jury’s examination of the five rounds of handgun bullets, to sustain the conviction. Because Royal failed to raise the affirmative defense, the panel held there was no error in the jury instruction that knowing possession was possessing ammunition as ammunition is commonly understood. The panel reversed the sentence because the conviction relied upon was not a violent felony under the categorical approach. The panel held that Maryland’s second d degree assault statute was indivisible as it can be violated through violent or nonviolent means. Thus, pursuant to United States Supreme Court precedent, the modified categorical approach does not apply and the statute does not categorically require violence for conviction.

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