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

FIRST STEP ROUNDUP

Looking for a Loophole: First Step news from last week: First, a cautionary tale for anyone who thinks there is a magic potion that will make the sentencing changes in the First Step Act retroactive.

As with most legislation the First Step Act represents countless compromises. Prominent among those were the deals made on retroactivity. The Act changed 18 USC § 924(c), which punishes people who use a gun in a drug crime or crime of violence with a mandatory consecutive term of five years (if the defendant was just carrying the gun), seven years (if the defendant brandished the gun) or 10 years (if the defendant actually shot it). All of that makes sense. The statute also imposes a mandatory consecutive 25 years on a defendant for a second conviction under 924(c).

The problem was lousy draftsmanship. Congress figured that it you got five years extra for a 924(c) conviction but did not learn your lesson, you ought to get a minimum 25 years on the second conviction. But the provision was written so that any subsequent conviction under 924(c) got you the enhanced time. Say that today you sell some dope on the street corner, with a gun stuffed in your pants. Then, tomorrow you do the same thing. The U.S. Attorney will charge you with two distribution counts and two 924(c) counts, one for each day. Before the First Step Act, you would get a sentence for the drugs, a consecutive five years for today’s 924(c) count, and a consecutive 25 years for tomorrow’s 924(c). That was not the way it was supposed to work, but U.S. Attorneys don’t care what Congress meant. They only care about what Congress wrote.

The First Step Act changed 924(c) to make it clear that the 25 years can be added only if you had already been convicted of the first 924(c) before you committed the second one. Likewise, it changed portions of 21 USC § 841(b)(1) to make the former mandatory life sentence into a 25-year sentence, and the former 20-year sentence into a 15-year sentence. But to sell some of the troglodytes in the Senate (yes, we mean you, Sen. Tom Cotton [R-Alabama]) on supporting First Step, the changes in the mandatory minimums were not made retroactive. Only the 2010 Fair Sentencing Act – which like First Step had the retroactivity taken out in order to rustle up enough support to pass the measure – was made retroactive in First Step.

Devan Pierson thought he could wriggle through a loophole. He got sentenced to life for a drug distribution case, due to his criminal history and the presence of guns. On appeal, he argued that because the First Step Act had made life sentences into 25-year maximum sentences, his life sentence – which was still on direct review – should be reduced.

Last Friday, the 7th Circuit disagreed. “Subsection 401(c) states that the amendments in that section ‘shall apply to any offense that was committed before the date of enactment of this Act, if a sentence has not been imposed as of such date of enactment.’ In common usage in federal sentencing law, a sentence is “imposed” in the district court… In the First Step Act, Congress chose language that points clearly toward that same result: the date of sentencing in the district court controls application of the new, more lenient terms.”

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Power of the Media: I wrote last week about some district courts holding that reductions in crack sentences under the retroactive Fair Sentencing Act must rely on the “offense controls” theory instead of the “indictment controls” theory. If you are in that kind of fix, it is good to have friends in the media.

In 1994, in the depths of the war on drugs, Sonny Mikell picked up a third federal drug conviction in Florida and was handed a mandatory minimum sentence of life in prison. Although he was only found guilty for 50 grams by a jury, the sentencing judge agreed with the presentence report that held him culpable for 290 grams (for sentencing purposes).

When the First Step Act made the Fair Sentencing Act retroactive, Sonny applied for relief. His sentencing judge granted it promptly, sending Sonny home right from the hearing. But the government appealed to the 11th Circuit, apparently intending to argue that the “offense controls” theory (and the 290 grams) should govern.

Stopthedrugwar.org picked up the story, and ran it week. Citizen Truth republished it. The next day, the government dismissed its appeal without explanation. Citizen Truth may not be Kim Kardashian, but it got the job done.

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You’re My Bestie: Finally, the Daily Beast picked up the story of Rufus Rochell, a man from inauspicious circumstances who befriended Conrad Black when the two were together at FCI Coleman. Black, a wealthy Canadian publisher and friend of Trump, was pardoned by the President a few weeks ago.

Rufus and Conrad both worked in the education department, Rufus as a law clerk and Conrad as a tutor helping inmates study for their GEDs. “They had conversations about history and education. And they found humor in the subtle absurdities of prison life, such as the thunderous rain that fell whenever inmates were asked to report for lawn duty.”

When Conrad was released on bail after a favorable SCOTUS decision, a rumor spread that he had been arrogant and condescending as an inmate. At Conrad’s request, Rufus wrote a letter refuting the claim, and praising his selflessness.

Now that Conrad has been pardoned, Rufus is hoping for a break through the First Step Act or executive clemency, and is looking to Conrad for support. According to the Daily Beast, nothing has yet been forthcoming.

I have heard a lot of guys being released who promised to send friends money, to keep in touch, even get together after it was all over. It does not often happen. You would hope, however, that when someone is powerful, rich and close to power, especially when he himself has been blessed with good luck, such a promise would not be forgotten.

United States v. Pierson, 2019 U.S. App. LEXIS 16296 (7th Cir. May 31, 2019)

CitizenTruth.org, Why Are Prosecutors Trying to Send a First Step Act Ex-Prisoner Back to Prison? (May 28)

Motion to Dismiss, United States v. Mikell, Case No. 19-11459-G (11th Cir. May 29, 2019)

Daily Beast, Trump Pardoned Billionaire Conrad Black but Left His Prison Buddy Behind

– Thomas L. Root