On remand, the district court rejected Carter’s 2nd Amendment challenge to 18 USC 922(g)(3) which bans firearm possession by drug abusers. The panel affirmed holding the evidence presented in including studies showing a correlation between marijuana use and violence and commonsense arguments such as the fact that drug users steal to finance their drug use, were sufficient to sustain (g)(3) form Carter’s challenge.
Colgate sought Rule 11 sanctions and to have the federal remand order vacated based on attorney misconduct in a post remand state hearing. The district court denied the motion. The panel, 2-1, affirmed. The majority held that 28 USC 147(d) bars review of decisions to remand if they are based on a finding of no jurisdiction. As that happened here, review was unavailable which the majority reasoned was consistent with the broad categorical bar, served the interests of finality in jurisdictional litigation and served congressional intent. The dissent argued that Barlow’s attorneys successfully used intentional misrepresentation to remand the case to state court, that the district court under Supreme Court, 4th Circuit and consistent with numerous out of circuit cases had authority to hear and decide the rule 11 motion for sanctions and a vactur under rule 60(b)(3) is not review and is thus not barred. Te dissent argued that the majority approach disincentivizes attorneys from doing correct research and providing true representations in remand motions. As to the merits, the dissent would have granted the Rule 11as the deliberate misrepresentations by Barlow’s attorney were inexcusable and an award of attorney fees and referral of counsel to the state bar would be appropriate sanctions. The dissent would also have granted the rule 60 motion to allow a remand hearing untainted by the misrepresentations.
At Ramirez-Castillo’s trial for possessing weapons in prison, the jury made findings of fact about the two items alleged to be weapons, but, was not required to return a guiltily or not guilty verdict. The panel reversed. It held that plain error applied and there was plain error in failing to require a jury finding of guilt because the trial court is prohibited from making the ultimate determination of guilt, that prohibition was on the books for decades before this trial, this error is structural in nature in that there was a de facto directed verdict of guilt and this affected Ramirez-Castillo’s substantial rights and the panel chose to notice the error to prevent undermining the integrity and public reputation of the judiciary. The case was remanded for a new trial.