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Rosemond v. U.S.

The U.S. Supreme Court decided the case of Rosemond v. U.S., a case where GOF had previously filed an amicus brief.

The decision is not easy to summarize, as it was a split decision. However, on balance GOF attorneys found more to dislike in Justice Kagan's opinion than to like. This is what the BNA criminal law reporter had to say:

The Supreme Court claims that, in Solomonic fashion, "both parties here will find something to dislike."

On the one hand, it agreed with the Government that a defendant convicted of a drug trafficking should be sentenced to an additional 5 years just because he knew that a firearm was present.

On the other hand, disagreeing with the Government, the court ruled that the prosecutor must prove that the defendant had "advance knowledge" of the firearm's presence. The Court ruled improper the prosecutor's argument that it was enough if the defendant learned for the first time that a gun was present when he heard it go off.

But in either case, the court's ruling means that bare knowledge of the presence of a firearm is sufficient reason to impose an additional mandatory minimum consecutive sentence of five years. This ruling has the effect of taking from the jury the key question of defendant's guilt – his intent concerning the use of a firearm.

Additionally, at the urging of the Government, the court's decision upholds the power of prosecutors, not judges, to determine sentences given to thousands of defendants. Prosecutors will continue to have power de facto to impose mandatory minimum sentences --- the very sort of sentences that Attorney General Eric Holder claims to oppose.

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