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

CONGRESS PAINTS IN BROAD STROKES…

When Congress passed the First Step Act, it authorized retroactive application of the 2010 Fair Sentencing Act in just 222 words. Two cases last week, which fill in the fine points that the statute leaves unaddressed, do so with over 5,000 words, and that number is a small percentage of all the cases since 2018 interpreting § 404 of First Step.

Still, the devil’s in the details, and last week’s decisions answer some questions § 404 leaves ambiguous. One is what constitutes “a complete review on the merits.” A second is exactly what prior Guidelines determinations by the court may be revisited on a § 404 resentencing.

Richard Hoskins pled guilty to a crack offense in 2009, making a Federal Rule of Criminal Procedure 11(c)(1)(C) agreement (a deal in which the actual sentence is negotiated, and the court must take it or leave it) to 327 months. The deal let him dodge a mandatory life sentence. The Fair Sentencing Act dropped his plea Guideline range to 262-327 months, but when he petitioned for § 404 relief, his district court issued an order saying that it believed he was not eligible, and even if he were eligible, his sentence should stay at 327 months. However, the court invited Rich and the government to submit “persuasive objections” to what the court proposed to do.

Despite the parties’ filings, the court denied Rich a sentence reduction. Last week, the 8th Circuit affirmed, despite Rich’s objections that the judge’s announcement before briefing of what he intended to do deprived Rich of the right to be heard.

On appeal, the government conceded that the district court was wrong (in that Rich was clearly eligible for § 404 reduction), but it argued the court had given Rich the review “on the merits” that § 404 promised.

Section 404(c) precludes a successive FSA motion if a previous motion was “denied after a complete review of the motion on the merits.” While “complete review on the merits” has not been addressed before, the 8th said it “means that a district court considered petitioner’s arguments in the motion and had a reasoned basis for its decision.” Here, the district court’s final order stated that it had considered the parties’ briefs and exhibits, and it briefly explained why the court concluded that Rich’s initial sentence was ‘sufficient but not greater than necessary to address the essential sentencing considerations’.” This was sufficient to satisfy the Circuit that the district court had exercised its discretion, which was apparently the key to determining that Rich had gotten a “complete review on the merits.”

Meanwhile, back in Oklahoma, when Dymond Brown was sentenced for five grams of crack back in 2007, he was held to be a Guidelines career offender for, among other reasons, feloniously pointing a firearm at another person. (“Career offender” status sends a defendant’s sentencing range into the stratosphere, in Dymond’s case to 22 years for five grams of cocaine base instead of the five years he would have gotten otherwise). Between 2007 and 2018, the 10th Circuit reversed course on the Oklahoma “feloniously pointing a gun” offense, and decided it was not a crime of violence after all (because one could commit the offense without employing or threatening violence).

Dymond filed a § 404 motion, and argued that the district court should consider sentencing law as it existed the day Congress passed the First Step Act in 2018. Predictably, the government argued that although Dymond should never have been a career offender, the district court could not recognize that fact in a § 404 resentencing. The district court agreed with the government, and resentenced him to a reduced career offender sentencing range of 210 months.

For a non-lawyer, the notion that someone was sentenced to an extra 17 years because of a court’s mistake in applying the law, but should not be able to correct that error, is both shocking and nonsensical. The government, of course, was able to argue for precisely that notion without a moment’s hesitation or shame.

Fortunately, the 10th Circuit is made of better stuff than the U.S. Attorney’s office. It sided with Dymond. While a § 404 resentencing is a limited one, still, the sentencing judge must calculate the defendant’s correct Guideline range. “When the court calculates a defendant’s Guideline range,” the 10th said, “it implicitly adopts the underlying legal conclusions… Our holding [that ‘feloniously pointing’ was not a violent offense] was not an amendment to the law between Dymond’s original sentencing and his First Step Act sentencing; it was a clarification of what the law always was… If the district court erred in the first Guideline calculation, it is not obligated to err again. What reasonable citizen wouldn’t bear a rightly diminished view of the judicial process and its integrity if courts refused to correct obvious errors of their own devise that threaten to require individuals to linger longer in federal prison than the law demands? Especially when the cost of correction is so small?”

Thus, when the correction is a clarification of the law, not an amendment, a § 404 resentencing should consider it. Dymond will get resentenced with a correct, lower Guidelines sentencing range.

United States v. Hoskins, 2020 U.S. App. LEXIS 28190 (8th Cir. Sept 4, 2020)

United States v. Brown, 2020 U.S. App. LEXIS 28454 (10th Cir. Sept 9, 2020)

– Thomas L. Root