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D.C. Code 22-3202 Weapons, Guns, Firearms

Discussion in 'Criminal Charges' started by Duane Allen, Feb 28, 2021.

  1. Duane Allen

    Duane Allen Law Topic Starter New Member

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    My name is DA, a District of Columbia prisoner who has been incarcerated for twenty-eight years. Before I continue, let me state: I am not seeking pro-bono legal representation. I am in, however, requesting legal assistance with learning what category of statuses D.C. Code 22-3202/While Armed I fall under.

    I was charged, convicted, and sentenced under 3202 (which has since been repealed and recodified as D.C. Code 22-4502). The Assistant United States Attorney employed 3202/While Armed as an element of the four offenses it was attached to on my indictment, even though 3202’s own statute doesn’t affirm, assert, claim, or declare 3202 to be an element of any codified criminal offense in the District of Columbia. See D.C. Code 22-3202 (1989 Repl & 1991 Supp.).

    In Thomas v. United States, 602 A.2d.647 (1992), the court defined 3202 as “a complex penalty enhancement provision”, “an additional penalty”, and “a recidivist statute”. Nothing was written about 3202 being an “added element”. Rather, the application of 3202 is dependent on a conviction of the underlying offense. “That sentence alone defeats any element claim as all elements “must” be submitted to a jury and proven beyond a reasonable doubt – which takes place “before” a conviction of the underlying offense. In other words, the Assistant U.S. Attorney applied 3202 as an added element to obtain the conviction needed for its application.

    Also, there is no legislative history to show when Congress of the District of Columbia Council enacted any law making 3202/While Armed an element of any of the offenses for which I was charged, convicted, and sentenced. Then, there is D.C. Code 24-203(b) (which has since been repealed and recodified as D.C. Code 24-403(b)), where I first noticed 3202. It must be noted that sections 24-200 through 24-209 dealt solely with parole, which has been abolished in the District of Columbia.

    So, what is D.C. Code 22-3202? Is 3202 a parole provision? I hope someone can enlighten me as I am truly at a loss. Thank you for your time.


    Respectfully written,

    D A
    PERSONAL INFORMATION redacted to protect YOUR privacy!
     
  2. army judge

    army judge Super Moderator

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  3. Tax Counsel

    Tax Counsel Well-Known Member

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    ArmyJudge provided a link to the current version of DC code § 22-3202. But that's obviously not the statute at issue here. You stated that you were sentenced under what is now DC Code § 22-4502. As that statute is currently written it is an additional penalty for committing a "crime of violence or a dangerous crime" while armed with a firearm or "other dangerous or deadly" weapon. It thus does appear that conviction on some other offense is required to support a conviction under this section; it is not a substantive criminal statute but a sentencing provision. So, unless the law was significantly different when you were convicted, you could not properly have been convicted of violating this provision — the government would have had to get you convicted of some violent or dangerous crime and then invoke this provision to enhance sentencing of that conviction.
     
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  4. mightymoose

    mightymoose Moderator

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    It appears 3202 was simply a sentence enhancement. Having been convicted for the other 4 offenses the penalty was increased because of the weapon.
    I don't see that you have a good argument to make unless you are wanting to dispute there was a weapon involved.
     
    Last edited: Mar 1, 2021
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  5. Zigner

    Zigner Well-Known Member

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    The OP is not claiming innocence.
     
  6. army judge

    army judge Super Moderator

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    Don't be misled by their name.
     
  7. Duane Allen

    Duane Allen Law Topic Starter New Member

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    Thanks for chiming in!

    The Assistant District Attorney who tried me and the judge who presided over my trial used 3202 as an additional penalty for committing a "crime of violence or a dangerous crime" while armed with a firearm or "other dangerous or deadly" weapon. 3202/While Armed was used as an element of the offenses it was attached to on my indictment. I wasn't charged with First degree Murder, D.C. Code 22-2401, which has since been repealed and recodified as 22-2101, but with First Degree Murder 'While Armed', D.C. Code 22-2401,3202, and as you know 'all' elements must be submitted to the jury and proven beyond a reasonable doubt. But nowhere in 3202's own statue does it claim to be an element. Nor could I find the Legislative History of Law in the D.C. Code showing when Congress or the Council of the District of Columbia enacted law making 22-3202/While Armed an element of any criminal offense in the District of Columbia. Also, in Thomas v United States, 602 A. 2d. 647(1992), that court clearly states : "3202 does not comprise a criminal offense in and of itself. Rather, its application is dependent upon a conviction of the underlying offense." If 3202 was submitting 3202/While Armed to my trial jury as an element would violate the Constitution's 6th and 14th Amendments and 3202's own procedural rule. But this is only of two claims.

    The sentencing judge merged my sentence under 3202 into my sentence under 3204(b). See Thomas, supra. When 3202 is merged into 3204(b), the life sentence provided under 3202 is lost in favor of the maximum 15 year sentence provided under 3204(b).
     
  8. mightymoose

    mightymoose Moderator

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    I think the answer to your question would be found in the jury instructions from your trial.
    I suspect you would find the jury was not tasked with determining anything at all about the 3202 enhancement.

    Even if it is somehow mentioned you would likely have to show that its inclusion resulted in a different outcome than was likely without it. Surely your conviction was based on other significant evidence.

    Are you hoping for a new trial, or resentencing?
     

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