PC 12022 (a), (b), (c)

PC 12022 (a), (b), (c)

Offense

Sentence enhancement for carrying a firearm during a felony. See Advice for detailed description:

Aggravated Felony (AF)

(a)(1), (c) should not be held a COV unless underlying felony is, but no there is no case on point.1For example, in Medina-Lara, 771 F.3d 1106 (9th Cir. 2014), Mr. Medina-Lara was convicted of H&S C § 11351, possession with intent to sell, with an enhancement for carrying a gun during the felony, under Pen C § 12022(c). The offense was held not to be a drug trafficking aggravated felony for deportation purposes because the record did not prove a federally defined controlled substance. The Ninth Circuit did not discuss whether the offense was a crime of violence, because apparently the government never charged this. But arguably since possession for sale is not a crime of violence, doing so while having a weapon available but not using it is not.

Assume that (b), with use of a firearm, is a COV.

(a)(2) may be an AF as an analogue to 18 USC 922(o)

Crime Involving Moral Turpitude (CIMT)

Use of weapon likely to be held CIMT; armed w/ weapon might not be.

Other Removal Grounds

(a)(1), (c) are not deportable under the firearms ground due to antique firearms rule.2Medina-Lara v. Holder, 771 F.3d 1106, 1116 (9th Cir. 2014) (the definition of “firearm” at § 12001(b) (now moved to § 16520(a)) that is used in § 12022(c) is overbroad because it includes antique firearms). Note that the definitions of “assault weapon” and “.50 BMG rifle” expressly exclude antique firearms.

Advice and Comments

PC 12022 is a sentence enhancement for carrying a firearm during the attempt or commission of a felony, including:

(a)(1) Principal (includes accomplices) armed with firearm;

(a)(2) Principal (includes accomplices) armed with machine gun, assault weapon, .50 BMG rifle;

(b) Personal use of deadly/ dangerous weapon;

(c) Personally armed w/ a firearm

AF: To avoid a possible AF as a COV, try to plead to simply possessing a weapon (including most firearms) which can take more than a year without being a COV; if needed plead to an additional offense involving actual violence with less than a year’s sentence. See § N.4 Sentence.

2020-05-19T19:25:10+00:00Updated January 29th, 2020|