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

LET’S NOT GET AHEAD OF OURSELVES

Who would not want to be Ronald Mack?

Ron, his brother Rodney and friend Jesse Opher were never supposed to get out of prison. They were sentenced to LWOPs (“life without parole”) after being convicted of crack conspiracy charges in 2001. But then in 2014, a change in the Sentencing Guidelines that reduced the base offense level for the quantity of drugs charged against them cut their sentences to 30 years. A few years later, the First Step Act let them apply for retroactive application of the Fair Sentencing Act of 2010. In November 2019, same judge who took their futures in 2002 gave them back, reducing their sentences (and that of a fourth man in their case) to time served.

But their freedom may be short-lived. Just as they were beginning to get a feel for their life outside of prison, the four men learned the U.S. Attorney’s Office of New Jersey had filed a notice to appeal their release.

The government had argued the four men were not eligible for reduced sentences because they were also convicted of conspiring to distribute powder cocaine, the penalties for which have not changed under the First Step Act. Their conviction today would still trigger a possible life sentence, the government argued at the November hearing, and the 20 years or so they had served just wasn’t enough.

The judge didn’t buy it. She noted that the government’s original trial case, and how the jury verdict sheet (written by the government) was worded, both revolved around the mandatory minimums that would come from a crack cocaine conviction. In fact, the judge observed, prosecutors were “asking the jury to make the findings that would, in fact, drive the sentence… I just want to tell you when you look at this jury verdict sheet, it is a graphic on the sentencing guidelines disparities between crack and powder cocaine.”

Sow the wind, reap the whirlwind, the judge told the U.S. Attorney.

The men’s lawyers argued that First Step is written to be applied broadly. The judge agreed, saying it was “simple.” The men were convicted of conspiracy to commit a crack offense before 2010, so they are eligible. That’s all First Step requires.

So the government filed its notice of appeal, indeed, filing it before the deadline. In so doing, however, the government got a little ahead of itself, however. A government criminal appeal has to be approved by the Solicitor General. Right now, the appeal is stayed, because Washington has not yet given the New Jersey U.S. Attorney approval to proceed.

Such approval is not automatic. The SG has to consider whether the facts of the case and the judge’s holding are such that the government can win. Right now, the government has a single district court case (which does not bind other district courts) going against its position. If it does not appeal, Ron and his co-conspirators go free after doing about 20 years. If it does appeal and loses, it has a Circuit court precedent that will bind district courts in three states, as well as serve as persuasive authority in the rest of the country.

For years, Ron  expected to die in prison. He has been free for almost three months, but ever since the government’s notice of appeal he is living under the Sword of Damocles. He wonders daily, “Am I going back? “When are they going to stop?,” he asked in a recent interview. “That’s what I want to know. When are they ever going to stop? Are they ever going to stop?”

NJ.com, Judge released 4 N.J. men after nearly 20 years in prison. Now, the feds want to send them back (Jan 26)

Order, United States v. Mack, Case No. 19-3891 (3rd Cir. Jan 14, 2020)

– Thomas L. Root