Commonwealth Court panel affirms PSP gun purchase denial

By Jon Campisi | Feb 11, 2013

A three-judge Commonwealth Court panel has upheld a decision by an administrative law

judge of the state Attorney General’s Office that affirmed a Pennsylvania State Police denial of an application to purchase a firearm by a man who had previously been convicted of identity theft.

President Judge Dan Pellegrini joined Judges P. Kevin Brobson and Patricia A. McCullough in concluding that John Ray was rightfully denied a gun purchase because of his 2004 guilty plea in connection with two counts of identity theft, each of which was graded as a first-degree misdemeanor.

Under state law, a first-degree misdemeanor carries a maximum penalty of five years imprisonment, although Ray ended up being sentenced to a one-year term of probation, court papers state.

In the spring of 2011, Ray applied to purchase a firearm yet his application was denied because of his identity theft conviction, which made him ineligible to buy a gun under Section 922(g)(1) of the Federal Gun Control Act.

That section of the federal statute says that it is unlawful for anyone who has been convicted of a crime punishable by imprisonment for a term exceeding one year to possess a firearm.

However, the law also states that the phrase “punishable by imprisonment for a term exceeding one year" does not include any state offense classified by the laws of the state as a misdemeanor and punishment by a term of imprisonment of two years or less.

Ray subsequently appealed his Pennsylvania State Police denial to the state Attorney General’s Office, arguing that he shouldn’t be prohibited from buying a gun under the federal act because he was only sentenced to probation as a result of his 2004 identity theft conviction, and that the potential sentence for an offense should be measured by the sentencing guidelines rather than by the statutory classification of the offense.

The administrative law judge, however, sided with the PSP, and upheld the purchase denial.

Ray then appealed to Commonwealth Court, the state’s lower-tier appeals court.

On appeal, Ray again argued that judicial sentencing guidelines should determine the amount of time for which a crime is “punishable” under Section 922(g)(1) of the Federal Gun Control Act, and that because he could not have been sentenced to more than one year in prison for his crimes under the guidelines, he should not have been disqualified from possessing a firearm under the federal statute.

The appellate panel wrote that what Ray’s argument ignores is that the section of federal law cited by Ray goes to the maximum allowable term of imprisonment, not the term to which the person was sentenced or actually served.

“That is why we have consistently held that a conviction for a first degree misdemeanor prohibits the possession of firearms pursuant to Section 922(g)(1) of the Act,” the panel wrote in its opinion, which was filed on Feb. 8.

The judges also wrote that in his argument, Ray ignores that sentencing guidelines are just that, guidelines, and are not binding on the sentencing court.

Because the sentencing guidelines are not determinative of the amount of time for which a crime is “punishable” for the purposes of Section 922(g)(1) of the Federal Gun Control Act, and state law provides that five years’ imprisonment is the maximum penalty for a first-degree misdemeanor, the administrative law judge correctly determined that Ray is disqualified from owning a firearm, the panel wrote.

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