We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

THE GAME’S AFOOT

The 900-lb. gorilla in the room at most Fair Sentencing Act resentencings under the First Step Act is this: before the United States v. Booker Supreme Court decision, the government typically did not bother to specify an amount of crack the defendant was accused of distributing. It did not bother, because the jury would find him or her guilty of some quantity (however small), and then the government would get the defendant tagged in the presentence report with 1.5 kilos of the stuff.

The quantity would result in the defendant getting hammered, not just with a mandatory minimum of 10 years (usually enhanced into the stratosphere by prior convictions noticed under 21 U.S.C. § 851), but usually with sky-high sentences as well.

The legal landscape is much different now. Booker and Alleyne have held that not only must the Sentencing Guidelines be advisory, but any amount raising the mandatory minimum must be found by a jury beyond a reasonable doubt.

Many of the Defendants going back for FSA resentencing had indictments that did not specify any minimum amount, or just a small amount that is no longer relevant. Thus the jury never found that they had possessed any significant amount. But their Presentence Reports – written by Probation Officers and often untethered to reality – may claim they had more crack than you could move with a truck. So at an FSA resentencing, does the district court go with what the jury found (which is constitutionally required) or by what was found in the PSR (on which the Court could legally rely on then, but not now)?

The government claimed that Emerson Davis should not get a retroactive FSA sentence reduction, because while the jury only found that he was responsible for 50 grams or more of crack, the PSR said he had moved over 1.5 kg. It did not matter that sticking him with 1.5 kg-plus violates his due process rights, the government argued, because it was all right to do when he was sentenced back in 1995.

The district court was unimpressed with the government’s argument, and two months ago it cut Emerson’s sentence to time served.

Two weeks ago, the government appealed the sentence reduction to the 11th Circuit. This was undoubtedly a calculated decision made by the Solicitor General in Washington, D.C., based on the belief that the 11th Circuit is likely to be the friendliest circuit to the government anywhere in the country on this issue.

An adverse decision could be ugly. No briefs have been filed yet.

United States v. Davis, Case No. 19-11311 (11th Cir. Filed Apr. 2, 2019)

– Thomas L. Root