Josh Covert

In The News

Monday, August 20, 2012


By Michael Nichols
Categories: Josh Covert

The Sixth Circuit of the United States Court of Appeals recently issued an opinion that is of importance to those facing federal criminal charges.  The Case, US v Morgan, involved a defendant who was being charged with possession of marijuana as well as discharging a firearm during the execution of a search warrant.  Apparently, Mr. Morgan was a suspected drug dealer and the police went to his house to execute a search warrant.  Mr. Morgan and 3 others were in a back bedroom when the police executed the warrant.  Mr. Morgan claimed that he was unaware that the intruders were police and fired a “warning shot” from the bedroom.

Mr. Morgan eventually pled guilty to the charges but objected during sentencing.  Specifically, Mr. Morgan objected when the government sought to enhance his sentence by applying the attempted murder cross reference guideline.  Mr. Morgan argued that the proper guideline would be the aggravated assault guideline.

The trial court determined that the attempted murder cross reference was appropriate namely because the shots were fired at head level and therefore not likely a warning shot. It is important to note that the trial court never made a determination regarding Mr. Morgan’s intent to kill.

The Trial Court also applied an upward departure to the charge of discharging a firearm related to drug trafficking.  The upward departure was based upon two arguments presented by the government. The first was that the shot fired was more serious than a normal “warning shot”. Second, the shots placed the other occupants of the back bedroom in danger because it was possible that the police officers involved could have returned fire.

In order to avoid “impermissible double counting” a court must find that the punishment is the result of distinct conduct and not the where one act factors into the sentence in two or more ways.  The Court of Appeals vacated the sentence and remanded the case back to the trial court for reconsideration.  “It looks as though Mr. Morgan will receive a fair sentence this time around” says attorney Joshua M. Covert.

The government this time must show that Mr. Morgan had the intent to kill in order to keep the attempted murder cross reference.  The government will also need to show that Mr. Morgan’s additional enhancement was not for shooting at the officers as this was already used for the attempted murder cross reference.  The government will need to show that the upward departure was based upon the danger his actions posed to the other occupants of the back bedroom.

If you are facing federal criminal charges and uncertain about the various federal sentencing guidelines call the Nichols Law Firm at (517)432-9000.

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Mike Nichols is a national leader in drunk driving defense. He is a member of the Forensic Committee and Michigan delegate to the National College for DUI Defense. He is also a Sustaining Member of the College. Nichols is also a founding member of the Michigan Association of OWI Attorneys; a member of the American Chemical Society; an associate member of he American Academy of Forensic Science, Adjunct Professor of Forensic Evidence in Criminal Law and OWI Law and Practice at Cooley Law School. He is also author of the West OWI Practice book and several chapters in other books on science and the law.

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