AUUW Gun Conviction Vacated in the 4th District even when the defendant was a felon. Other appellate districts are not vacating these gun convictions under these circumstances.
People v. Gayfield, 2014 IL App (4th) 120216-B (July).
Here, the defendant’s aggravated unlawful use of a weapon conviction, notwithstanding his felon status as a class 2 offense, is being vacated pursuant to Aguilar. See Illinois crimes index for more charges.
We kind have a big mess with aggravated unlawful use of a weapon convictions under 720 ILCS 5/24-1.6(a)(1), (a)(3)(A), and section (d).
Defendant’s conviction for the Class 2 form of aggravated unlawful use of a weapon under section 24-1.6(a)(1), (a)(3)(A), (d) was void pursuant to Aguilar, notwithstanding the fact that Aguilar “specifically limited” its holding to the Class 4 form of the offense, since both the Class 2 and Class 4 form of the offense require proof of the same elements.
Other Districts Are Not Vacating These Gun Convictions
The First and Third Districts are not vacating these gun convictions. See People v. Burns, 2013 IL App (1st) 120929, 4 N.E.3d 151; People v. Soto, 2014 IL App (1st) 121937, 7 N.E.3d 823; People v. Moore, 2014 IL App (1st) 110793-B, 8 N.E.3d 1271; People v. Charles, 2014 IL App (1st) 112869-U; and People v. Johnson, 2014 IL App (3d) 120778-U.
Illinois Supreme Court is going to have to get involved.
This court says that the element of felony status is not an element of the offense under section 24-1.6(a)(1) but instead is a sentencing factor under section (d). This distinction is crucial because it then means that the defendant’s conviction cannot stand.
The elements of the offense for both the Class 4 and Class 2 forms of the AUUW statute at issue in this case are identical.
AUUW Gun Conviction Vacated in the 4th District
Even though the Aguilar court “specifically limited” its holding to the Class 4 form of the offense, this court could could not see how the Class 4 form of the AUUW statute can be unconstitutional on its face, but the Class 2 form is not, since both classes of the offense require the State to prove the exact same elements.
This conviction was vacated, and Defendant’s 7 year sentence is vacated.
This is not 720 ILCS 5/24-1.1
Notably, Defendant was not charged under 720 ILCS 5/24-1.1 of the Criminal Code of 1961. This section would be a different offense from 24-1.6 because the defendant’s felon status is an element of the offense which must be proven to the jury.