We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
SOME SHORTS FROM LAST WEEK…
Crack Retroactivity: Monae Davis won release a year ago when a district court gave him a retroactive crack sentence reduction under Section 404 of the First Step Act. However, he has lived under a cloud since then because the government appealed, arguing that because his offense involved 1.5 kilos of crack, he was not eligible for a Section 404 reduction (because his Guidelines would not change).
The question of eligibility has haunted Section 404 applicants since First Step passed. Does 404 relief turn on whether only on whether the punishment specified in the statute under which the defendant was charged has changed, or must the change mean that the Guidelines for the amount of drugs with which the defendant was involved changed?
Freedom is vastly preferred over prison, but Monae’s joy must have been muted, knowing as he did that a case in front of the Court of Appeals could send him back to prison tomorrow (and I mean “tomorrow” in its most literal sense).
Luckily for Monae, two weeks ago his joy became unbounded. The 2nd Circuit joined the surge of courts of appeal disagreeing with the government’s draconian view of Section 404. The Circuit rejected the government’s argument that Section 404 eligibility turns on a defendant’s actual conduct, holding that “eligibility depends on the statutory offense for which a defendant was sentenced, not the particulars of any given defendant’s underlying conduct. Because the retroactivity meant that the Fair Sentencing Act now applied, and because the FSA modified the statutory penalties for Monae’s offense, he was eligible for Section 404 relief.
United States v. Davis, Case No. 19-874, 2020 U.S. App. LEXIS 17736 (2nd Cir June 5, 2020)
Drug “Safety Valve”: Devin Hodgkiss pled guilty to distributing meth on an occasion in April 2018 and to possessing a firearm in furtherance of a drug trafficking offense in June 2018 (an 18 USC § 924(c) offense). He asked for “safety valve” sentencing under 18 USC 3553(f) to duck under the 10-year drug statutory minimum, but the district court denied him, holding that he was ineligible for the safety valve because he had possessed a gun as relevant conduct.
[Background: The “safety valve,” found in 18 USC § 3553(f), permits a drug defendant who meets certain limiting criteria (light criminal history, no leadership role, no violence, no gun, etc) to be sentenced without regard to statutory minimum sentences (and with a Guidelines break as well)].
Last week, the 8th Circuit reversed, holding that Devin was entitled to the safety valve despite its requirement that the defendant not have possessed a firearm “in connection with the offense.”
“Relevant conduct,” the Circuit said, “is a concept developed by the Sentencing Commission… The ‘safety-valve‘ limitation on statutory minimums, however, appears in an Act of Congress that is not governed by definitions in the sentencing guidelines. Therefore, to determine whether Hodgkiss possessed a firearm ‘in connection with the offense,’ 18 USC 3553(f)(2), we must consider what the statute means by ‘the offense’.”
The 8th concluded that the term “offense” should be strictly defined as “offense of conviction.” Here, Devin was convicted of distribution based on an April 2018 drug sale. The § 924(c) was based on a June 2018 drug distribution. Therefore, the gun was not possessed in connection to the drug conviction. He still faced a mandatory minimum of five years for the gun, but the 10-year statutory minimum no longer applied.
United States v. Hodgkiss, Case No. 19-1423, 2020 U.S. App. LEXIS 17874 (8th Cir June 8, 2020)
– Thomas L. Root