People v. McGee
2017 IL App (1st) 141013-B
| Ill. App. Ct. | 2017Background
- Marchello McGee was tried for armed habitual criminal (AHC) and unlawful use of a weapon by a felon (UUWF) based on possession of a rifle on Sept. 11, 2012; jury convicted on both counts and sentences merged, with a 14-year sentence on AHC.
- The AHC charge alleged two prior qualifying felonies: a UUWF conviction (08 CR 13500) and an aggravated unlawful use of a weapon (AUUW) conviction (07 CR 5014).
- The UUWF charge alleged McGee had previously been convicted of a felony (08 CR 13500). The parties stipulated the prior convictions and the jury was informed of the prior case numbers.
- The AUUW provisions at issue had been declared facially unconstitutional in People v. Aguilar and People v. Burns because they broadly banned possession of operable firearms outside the home.
- The central legal question was whether a conviction under an AUUW provision later held unconstitutional may nonetheless serve as a predicate felony to support AHC or UUWF convictions when the AUUW conviction had not been vacated.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an AUUW conviction later held facially unconstitutional can serve as a predicate felony for AHC | State: Yes — prior convictions need only be proved as facts; AUUW conviction here was not vacated so it may qualify | McGee: No — an unconstitutional prior conviction cannot be used to enhance AHC because underlying conduct was protected | Court: Yes — prior AUUW conviction may serve as an AHC predicate if not vacated before the later offense |
| Whether an AUUW conviction later held facially unconstitutional can support UUWF (felon-in-possession) | State: Yes — UUWF is a status offense requiring proof of felon status, not proof of the validity of each prior conviction | McGee: No — using an unconstitutional conviction to establish felon status violates due process / precedents like Montgomery/Siebold | Court: Yes — under McFadden, UUWF requires proof of felon status only; a prior conviction remains valid until vacated, so it may support UUWF |
| Whether McFadden and related Supreme Court authority limit use of unconstitutional AUUW convictions as predicates | State: McFadden controls; it allows use absent vacatur | McGee: McFadden ignored Montgomery and Siebold; those require vacatur before a conviction can be used as predicate | Court: McFadden (and earlier precedent) considered Montgomery; courts hold status persists until judicial vacatur, so McFadden controls |
| Whether some AUUW variants remain valid and can independently support convictions | State: Yes — AUUW counts based on lack of FOID card are severable and constitutional | McGee: (implicit) many AUUW forms are invalid under Aguilar/Burns | Court: Yes — AUUW based on lack of FOID is constitutional per Mosley and can serve as a valid predicate |
Key Cases Cited
- People v. Aguilar, 2013 IL 112116 (held certain AUUW provisions facially unconstitutional)
- People v. Burns, 2015 IL 117387 (clarified Aguilar; AUUW provisions are unconstitutional without limitation)
- People v. McFadden, 2016 IL 117424 (held UUWF is a status offense; prior conviction stands until vacated)
- People v. Mosley, 2015 IL 115872 (AUUW counts based on lack of FOID card are constitutional and severable)
- Lewis v. United States, 445 U.S. 55 (status-based disability persists until conviction vacated)
- District of Columbia v. Heller, 554 U.S. 570 (Second Amendment protections outside absolute home limits)
- McDonald v. City of Chicago, 561 U.S. 742 (incorporation of Second Amendment against the states)
- Moore v. Madigan, 702 F.3d 933 (Seventh Circuit recognizing right to bear arms outside the home)