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Barr Declines to Celebrate Festivus – Update for September 29, 2020

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

ATTORNEY GENERAL TO CONGRESS: ‘DROP DEAD’

Jerry Seinfeld popularized the formerly-obscure anti-holiday Festivus, which included “The Airing of Grievances,” an event which immediately follows the festival feast. Attorney General William Barr effectively announced last week that for the House Judiciary Committee, Festivus came early this year.

festivus200929On September 21, the Justice Department declined a congressional oversight committee’s request to hear from various DOJ officials, including BOP Director Michael Carvajal to discuss  the BOP’s COVID-19 response. The reason? The Department has accusing Democrats of having “squandered” their opportunity to get relevant information from Attorney General William Barr this summer by instead using their time to “air grievances” instead of ask questions.

The House Judiciary Committee had asked that Eric S. Dreiband, the head of DOJ’s Civil Rights Division, appear this month to discuss the division, and that Carvajal and Donald Washington, the director of the U.S. Marshals Service, appear for an oversight hearing on Oct. 1.

Barr told Committee Chairman Jerrold Nadler (D-New York) that in July, Barr had been advised that he could be asked about police misconduct, voting rights, the coronavirus and federal prisons, and the civil unrest this spring and summer. But, Barr complained, when he appeared before the committee in July  to discuss those issues, but Democrats were more interested in “scolding and insulting” him.

meantome200929“Having squandered its opportunity to conduct a meaningful oversight hearing with the attorney general,” the letter said, “it remains unclear how further public spectacles with other department officials would now — a mere 14 legislative days since the attorney general’s hearing — advance the committee’s legitimate oversight efforts.”

Democrats and their allies argued after the hearing that Mr. Barr would not have answered their questions in good faith had they let him respond, and that he would have filibustered and wasted the time. Better, they said, to use the time to air their grievances.

DOJ argued to Nadler that this did “preciously little to advance any legitimate interest” because the committee as a result of this tactic learned no new information.

Meanwhile, several members of Congress from Virginia demanded answers from the BOP about prison conditions amid the pandemic. Senators Mark Warner (D) and Tim Kaine (R), along with Rep Morgan Griffith (R) are among those behind a letter sent last Tuesday to Director Carvajal.

The lawmakers are disturbed at reports of a lack of personal protective equipment and diminished quality of life for the incarcerated at USP Lee and FCC Petersburg. The letter said at least one prisoner who tested positive for COVID-19 was transferred to USP Lee, which they fear could cause a coronavirus outbreak in Lee County. The letter also alleges Petersburg inmates are being denied showers and workers continue to be denied lunch breaks.

control200511Carvajal responded Wednesday, claiming in a letter that both FCI Petersburg and USP Lee have “ample supplies of Personal Protective Equipment (PPE)” that includes face coverings, N95 respirators, gowns and gloves, and other sanitation equipment. The letter did not cite specific numbers.

“Indeed, the Bureau has ensured that all institutions nationwide have ample quantities of PPE, and has also established strategic stockpiles in each of our six regions where PPE can be drop-shipped within one day to any institution that might need additional supplies,” Carvajal wrote in the letter, a copy of which was provided to The Progress-Index.

The Virginia delegation lawmakers also wrote to the DOJ inspector general last Friday, asking that the IG include USP Lee and FCC Petersburg in its remote inspection list. “Our offices have received numerous reports from employees and families of incarcerated individuals regarding the spread of COVID-19 and allegations of deteriorating health and safety conditions within both facilities,” the letter said. “These concerns have been raised multiple times by several of our offices with BOP, and we remain deeply troubled by conditions at the two Virginia correctional facilities,” wrote the lawmakers… Many of our offices have received reports that – despite denials from BOP – cases are increasing and inadequate steps have been taken to limit transmission at this facility.”

prisonfood200919

In their letter, the lawmakers also note that they have received disturbing reports of diminished quality of life for inmates because of the COVID-19 lockdowns, including reports of spoiled food and reduced access to recreation, education, and other essential facilities.

The New York Times, Justice Dept. Denies House Panel’s Request for Officials to Appear After Combative Barr Hearing (September 22, 2020)

Letter from DOJ to Chairman Jerrold Nadler (September 21, 2020)

WCYB-TV, Bristol, Virginia, Federal lawmakers demand answers on COVID-19 conditions in Virginia prisons (September 23, 2020)

Petersburg, Virginia, Progress-Index, Director refutes claims by lawmakers about inadequate PPE at Petersburg federal prison (September 23, 2020)

Augusta Free Press, Virginia leaders urge DOJ to include Virginia correctional facilities in remote inspections (September 26, 2020)

– Thomas L. Root

2nd Circuit Declares “Open Season” for Inmates Seeking Compassionate Release – Update for September 28, 2020

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

2ND CIRCUIT REINVENTS COMPASSIONATE RELEASE TO UNLEASH JUDGES’ DISCRETION

The government has been fighting 18 U.S.C. § 3582(c)(1)(A) compassionate release motions hammer and tong ever since inmates won the right to file such motions themselves in the First Step Act. (Before that, only the BOP could file such a compassionate release motion, and – unsurprisingly – the BOP had little interest in doing so, but that’s another story).

compassionaterelease190517A great example of government hard-heartedness: Reason magazine reported last week that the U.S. Attorney in Miami “unsuccessfully tried to argue that an 80-year-old inmate serving a life sentence for marijuana offenses shouldn’t be released because COVID-19 is just ‘one more way to perish in prison’.”

U.S. District Judge Donald Graham disagreed, granting compassionate release to an inmate – who was 27 years into his life sentence – and was wheelchair-bound by arthritis and heart disease. Reason cited the Miami case as an illustration of its point that while the Attorney General has urged the BOP to use compassionate release, home confinement, and other measures to get elderly and at-risk inmates out of federal prison, “the rollout of Barr’s directive has been maddeningly inconsistent…”

Reason quoted FAMM president Kevin Ring as saying, “Title 9 of the U.S. Attorney’s Manual governs criminal proceedings, and there is no provision there that requires you to be an asshole.”

compassionate200928Not that that has stopped the government. One recurring government argument against compassionate release is that U.S.S.G. § 1B1.13 only lists four reasons for compassionate release. If you don’t fit into reasons (1) through (3) – and hardly anyone does – you have to rely on the fourth, which says, “As determined by the Director of the Bureau of Prisons, there exists in the defendant’s case an extraordinary and compelling reason other than, or in combination with, the reasons described” in the other three reasons.” The government has argued that for any reason other than an inmate’s terminal illness (such as having a COVID risk factor), a court cannot grant compassionate release unless the BOP has itself made the motion. “A sizable minority” of courts have agreed.

Last week, the 2nd Circuit drove a stake through the heart of that argument. Jeremy Zullo sought compassionate release. The court denied him, ruling that his reasons – sentence unfairness, rehabilitation and government violation of his plea agreement – had not been found to be “extraordinary and compelling” under 18 U.S.C. § 3582 by the director of the BOP, and thus could not support a sentence reduction.

The Circuit reversed, holding that § 1B1.13 does not apply to post-First Step sentence reduction motions:

Application Note 4 says that ‘[a] reduction under this policy statement may be granted only upon motion by the Director of the Bureau of Prisons pursuant to 18 U.S.C. § 3582(c)(1)(A). And we conclude that after the First Step Act, this language must be read not as a description of the former statute’s requirements, but as defining the motions to which the policy statement applies. A sentence reduction brought about not ‘upon motion by the Director of the Bureau of Prisons”’ is not a reduction ‘under this policy statement.’ In other words, if a compassionate release motion is not brought by the BOP Director, Guideline 1B1.13 does not, by its own terms, apply to it. Because Guideline 1B1.13 is not “applicable” to compassionate release motions brought by defendants, Application Note 1(D) cannot constrain district courts’ discretion to consider whether any reasons are extraordinary and compelling.

compassion160124This holding is nothing short of astounding, sweeping away much of the compassionate release jurisprudence that has been written in the last 20 months. It will likely open compassionate release motions to people who have compelling arguments, but not claims that can be pigeonholed into the four categories in U.S.S.G. § 1B1.13.

Reason.com, Federal Prosecutors Argue COVID-19 Is Just ‘One More Way to Perish in Prison’ (Sept 25)

United States v. Brooker, Case No. 19-3218-CR, 2020 U.S. App. LEXIS 30605 (2d Cir. Sept 25, 2020)

– Thomas L. Root

Voodoo Economics in the Courtroom Takes a Hit – Update for September 25, 2020

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

DO THE MATH

Christian Delgade-Lopezwas convicted of methamphetamine distribution. At sentencing, he argued for a reduction in his Sentencing Guidelines score for a minor role (USSG § 3B1.2), arguing he was just a simple DJ who was forced by circumstances to deliver meth for $1,000 a trip, and even having to pay his own expenses out of the grand he received.

djmeth200925The district judge didn’t buy it. Based in part on information the judge had gathered on his own about gas prices and mileage, the court did a back-of-the-envelope calculation from the bench, and estimated Chris’s expenses per trip to be $730.00, leaving him with a net profit of $270.00. After learning that Chris made $14.00 an hour at his full-time job, the district court speculated he could have made $224,00 in two days at his regular DJ gig had he not acted as a drug courier. The judge, wondering why anyone would act as a drug courier for what amounted to a lousy $100.00 net gain over honest work, decided Chris’s testimony about being a mere courier simply was not believable. Besides, the court said, Chris refused to cooperate with the government, and thus should not benefit from a minor-role reduction.

Last week, the 10th Circuit reversed Chris’s sentence. The Circuit admitted that a district court’s credibility findings should receive deference, but it ruled that nevertheless, a sentencing finding “must be based on evidence before the court, and thus in the record, and not on speculation or hypothesis.”

idontbelieveyou200925In this case, the district court’s determination was based on pure speculation about the economics of the drug-trafficking scheme, without any evidence with which to evaluate the financial wisdom of Chris’s decision to be a drug courier. “Its impromptu calculations were based on speculation,” the 10th said, “that Jude could work more hours at his existing job, unfounded estimates about the costs involved in each of his trips, and the assumption that he knew of the relative financial benefits of the arrangement prior to accepting.” The court thus erred by relying on its own speculation, the Circuit held, in finding that Chris was not credible.

What’s more, the district court was not entitled to hold that Chris’s lack of cooperation should deny him a minor-role reduction. The Guidelines “include a detailed explanation of what factors a court may and must consider,” the 10th held, “but does not mention cooperation. And although the determination requires a court to look at the totality of the circumstances, logic dictates that a defendant’s cooperation or lack thereof is entirely irrelevant to the factual determination of whether he or she played a minor role in an offense.”

United States v. Delgado-Lopez, 2020 U.S. App. LEXIS 29032 (10th Cir. Sept. 14, 2020)

– Thomas L. Root

The Ugly Gets Uglier in Coleman Sex Assault Suit – Update for September 24, 2020

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

FLORIDA NEWSPAPER REPORTS COLEMAN GUARDS WHO SEXUALLY ABUSED FEMALE INMATES WERE NOT PROSECUTED

Hey, all you male predators: Want a job where you can freely sexually assault women? And retire with fat benefits (and a nonprosecution agreement)? Have we got an opportunity for you at the BOP!

inconceivable170817In a story published last week, The Tampa Bay Times reported that the government admitted in a court filing that six of eight COs named in a civil suit by 15 current and former female inmates at Coleman engaged in sexual misconduct, but were not prosecuted, but rather allowed to resign or retire. Some are still getting federal retirement benefits.

The suit contends the Coleman prison was a “sanctuary” for abusers. In some cases, the women allege, the abuse lasted for years. The women, who range in age from 26 to 59, were threatened if they didn’t comply, the suit maintains.

Tampa Bay Times, No consequences after Florida officers admit to sexually abusing inmates, lawsuit says (September 17, 2020)

– Thomas L. Root

Sentencing Sanity the 3rd, 7th Circuits – Update for September 23, 2020

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

THREE FIRST STEP/FAIR SENTENCING DECISIONS OF NOTE

Last week was a good one for the First Step Act.

Sentencestack170404Hector Uriante was convicted of running with a gang that kidnapped and robbed drug dealers, including several 18 USC 924(c) counts that got stacked in the pre-First Step days. On the first 924(c) count, he got seven years for brandishing, but the brandishing was found by the judge, not the jury. On direct appeal, the Circuit remanded the case for resentencing because of Alleyne v. United States‘ holding that the jury had to find facts supporting an enhanced mandatory minimum.

The district court resentenced him last year, after First Step passed, but the judge still stacked his 924(c) counts, giving him 25 years for the second one. The district judge held that since Hector was first sentenced before First Step passed, the Act’s ban on stacking 924(c) convictions did not apply.

Last week, the 7th Circuit reversed in an en banc opinion that rejects the 3rd Circuit decision in United States v. Hodge. Because the prior sentence had been vacated, the 7th said, it was a “nullity.” A vacatur “wipes the slate clean,” meaning that at the time First Step passed, Harry was convicted and awaiting sentencing. Congress wrote First Step’s changes in 924(c) stacking to “apply to any offense that was committed before the date of enactment of this Act, if a sentence for the offense has not been imposed as of such date of enactment,” making no distinction between defendants who had never been sentenced and those whose sentence had been vacated fully and who were awaiting the imposition of a new sentence. “In this way,” the Circuit explained, “Congress stanched, to the degree that it could without overturning valid and settled sentences, the mortmain effect of sentencing policies that it considered no longer in the Nation’s best interest. It ensured, moreover, all persons awaiting sentencing on the effective date of the Act would be treated equally, a value long cherished in our law.”

So Hector’s good fortune in getting his sentence overturned under Alleyne, which appears to have saved him two years, in fact reduces his sentence by a full 22 years (two years off the 7-year “brandishing” sentence and a reduction of the second 924(c) sentence from 25 to five years).

conspiracy160606The 7th Circuit last week held that the same rule benefitted Rashod Bethany. Rashod was sentenced for a crack conspiracy in 2013, but later won a § 2255 motion on the grounds his lawyer erred in letting the court use the wrong edition of the Guidelines. He was resentenced after First Step passed, but his sentencing court would not let him benefit from the lower drug mandatory minimums passed in § 401 of the Act.

The 7th said that same rule applied. The § 2255 motion vacated his sentence, so Rashod was in the same position as a defendant who had never been sentenced. The Circuit remanded the case to district cout for a ruling of whether the sentence would have changed if lower mandatory minimums had been applied.

Finally, in the 3rd Circuit, James Easter had filed for a resentencing under First Step § 404, the section that made the 2010 Fair Sentencing Act retroactive. The court decided that James was eligible for a reduction, but denied him one because, the judge concluded, James’s Guidelines range did not change even if the FSA was applied.

James appealed, arguing that a district court had to consider the sentencing factors in 18 USC § 3553(a), not just a mechanistic look at the guidelines. Last week, the 3rd Circuit agreed.

While other circuits generally agree that minimum, a district court may consider the § 3553(a) factors, the 3rd said a judge must do so. “Section 404(b) uses the word ‘impose’ twice, and the first instance clearly refers to the act of imposing the original sentence.” The Circuit ruled. “Because Congress used the same word, we can infer that it conceived of the district court’s role as being the same when it imposes an initial sentence and when it imposes a sentence under the First Step Act. As the text of § 3553(a) makes clear, district courts look to the factors set forth there whenever they impose a sentence on a defendant.”

The 3rd Circuit joins the 4th and 6th Circuits in adopting the rule.

United States v. Uriarte, 2020 U.S. App. LEXIS 29234 (7th Cir. Sept 15, 2020)
United States v. Bethany, 2020 U.S. App. LEXIS 29246 (7th Cir. Sept 15, 2020)
United States v. Easter, 2020 U.S. App. LEXIS 29243 (3d Cir. Sept 15, 2020)

– Thomas L. Root

Is BOP COVID-19 Climbing Again – Update for September 22, 2020

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

COVID-19: NEW REASONS TO BE VERY AFRAID

The Federal Bureau of Prisons once again gained nothing last week in its fight against COVID-19. The number of inmates sick with the hovered all week between 1,915 and 2,045, and last night, hit 2,076. The number of sick staff started climbing again, too, from 631 a week ago to 669. The number of BOP facilities with the virus climbed as well to 117, a whopping 95% of all institutions. Ominously, the number of dead inmates jumped from 125 to 130.

The increase is consistent with concerns that the nation is in for another coronavirus increase in the coming days. And just in time for the fall spike.

The BOP has done enough COVID-19 tests as of last night to test 37% of the BOP inmate population. The percentage of tests that are positive remains 25%.

BOPInmatcases

One of last week’s deaths is especially troubling. On June 1, FCI Butner inmate Ricky Miller tested positive for COVID-19. A month later, he was tested again and declared to be recovered. Two months later, on Sept 9, Ricky developed shortness of breath and leg edema, and was hospitalized. The hospital found that he had COVID-19. He died a day later.

The timing suggests that Ricky caught COVID twice within a few months. If that is so, then the idea that having the disease once confers immunity against getting it again is cast into doubt. And that could mean that COVID-19 will remain a risk until a vaccine is available for inmates.

This comes as new research released last week suggests that the coronavirus can sometimes hijack brain cells, using the cells’ internal machinery to copy itself.

The research, which has not yet been published in a peer-reviewed journal, provides evidence that the virus can directly infect neurons. Although the coronavirus has been linked to various forms of brain damage, from deadly inflammation to brain diseases known as encephalopathies, all of which can cause confusion, brain fog and delirium, there was little evidence of the virus itself invading brain tissue until now.

imageScientists at Oak Ridge National Labs in Tennessee announced last week that supercomputer analysis of COVID-19 suggests that the virus triggers a “bradykinin” storm in the body. Bradykinin is a chemical that regulates blood pressure. The researchers found that some people with the coronavirus may produce it in extreme excess, according to Business Insider, throwing major systems — including respiratory, gastrointestinal, and neurological pathways — off balance.

death200330The theory aligns with researchers’ growing view of the coronavirus as a vascular disease instead of a respiratory one. Research has shown that COVID-19 can lead to blood clots, leaky capillaries, and inflamed blood vessels — which is why some patients may experience heart damage or stroke. “We were really scratching our heads for a while, how does this disease have this darn broad set of symptoms across lots of different organ systems?” Dr. Daniel Jacobson, the lead researcher behind the supercomputer study, told Business Insider. “As we looked at the effects of bradykinin, our model was that this virus can affect several different types of tissues, several different organs.”

Meanwhile, the BOP faces new eruptions of COVID-19 at USP Leavenworth, as well as continuing crises at Big Spring, San Diego, Coleman, Waseca and Manchester.

BOP, Inmate Death at FCI Butner (Low) (Sept 17)

Livescience, The new coronavirus can infect brain cells, study finds (Sept 13)

Business Insider, A supercomputer found a promising theory about why COVID-19 cases go downhill fast. It even explains the bizarre range of symptoms (Sept 13) 

Hays, Kansas, Post, Leavenworth tops all federal prisons in COVID-19 cases (Sept 15)

– Thomas L. Root

Ginsburg’s Death Leaves Washington in Turmoil, Stimulus in Doubt – Update for September 21, 2020

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

TOP OF THE NEWS

Supreme Court Justice Ruth Bader Ginsburg died Friday, leaving a vacancy on the Court that the Republicans have vowed to fill quickly (in the face of virulent Democratic opposition).

Justice Ginsburg’s many accomplishments will be written about by many in the coming days, but prisoners might recall that she was the sole justice to vote with both majority opinions in United States v. Booker: she was the fifth vote in a 5-4 decision holding the mandatory sentencing guidelines unconstitutional and she was the fifth vote for the separate Booker opinion making the guidelines advisory. Her two votes gave us the advisory guideline system that has now defined the federal sentencing system for 15 years.

Ginsburg200921The Senate must confirm a presidential appointment for the Supreme Court. If the Republicans fill the seat, the likelihood is remote that the Court would get another Justice as friendly to reasonable interpretation of criminal justice issues.

Plus, approving a new Supreme Court pick tosses another task into the Senate’s basket for the few remaining legislative days in the session, making the passage of any COVID-19 stimulus bill that might contain provisions improving CARES Act release and compassionate release even less likely.

Last week, President Trump called on the Senate to compromise with the House on getting a stimulus package. Senate Republicans immediately threw cold water on his proposal. “This used to be the White House versus Pelosi up until about now — now the president’s coming in and saying we can maybe go to $1.5 trillion,” Senate Finance Chairman Chuck Grassley told Bloomberg on Thursday. “He better be careful of that because I don’t think that will get through the United States Senate.”

Sentencing Law and Policy, In (sentencing) memoriam: noting a few major sentencing majority opinions by Justice Ginsburg (September 19, 2020)

Bloomberg, Trump’s Shift on Stimulus Leaves Republicans Skeptical, Divided (September 17, 2020)

– Thomas L. Root

Don’t Listen to the Judge – Update for September 17, 2020

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

SHUT UP, YOUR HONOR

You’d think that when a federal judge tells you that a plea offer stinks, you could take that to the bank.

shutup200917That didn’t happen for Seneca Harrison. After he was charged with an 18 U.S.C. § 922(g) felon-in-possession, the government offered him a 70-87 month plea deal. At Seneca’s change of plea hearing, the judge – upon hearing the deal – threw the Assistant United States Attorney out of the courtroom, and then told Seneca the federal (as opposed to the state) system “sucks” and is “really harsh.” The judge advised Seneca he’d get a better deal going to trial.

So Seneca did what the judge suggested… and he got hammered. Because going to trial took away his Guidelines acceptance-of-responsibility points, his sentencing range increased. He was sentenced to 92 months.

Last week, the 10th Circuit vacated the sentence and sent the case to a different judge for resentencing. Everyone agreed that the judge’s comments on the plea violated F.R.Crim.P. 11(c)(1). And Seneca was prejudiced by it, because there was a reasonable probability he would have taken the government deal if the court had kept its mouth shut. To be sure, the district court’s comments were “inappropriate. Commenting on the sentencing practices of another judge and making disparaging remarks about the federal system harms the public reputation of judicial proceedings.”

United States v. Harrison, 2020 U.S. App. LEXIS 28621 (10th Cir Sept. 10, 2020)

– Thomas L. Root

Nothin’ Happening’ Here… – Update for September 16, 2020

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

… WHEN CONGRESS PAINTS AT ALL

Remember Harry S Truman’s “do-nothing” Congress? If you do, you’re old…like I am. But as Yogi Berra is reputed to have said, “It’s deja vu all over again.”

yogi200917Hopes for any new COVID-19 stimulus package cratered last week, when the Republican-led Senate passed a “skinny” stimulus package that the Democrat-led House refused to consider.

Remember that the House version of the latest stimulus included several provisions easing compassionate release, CARES Act home confinement and elderly offender home detention. But with fewer than 12 work days left for the House and 13 for the Senate before the election, the chances any COVID-19 (or criminal justice) legislation will pass before the election have evaporated.

What happens after the election depends on what happens to control of the White House and Senate, and that won’t be decided until Nov. 3. Meanwhile, deadlock reigns supreme in Washington.

Wall Street Journal, Second Stimulus Check Not Showing Up Soon, if Ever (September 11, 2020)

Politico, 2020 Congressional Calendar (September 12, 2020)

HR 6800, HEROES Act

– Thomas L. Root

Fair Sentencing Act Courts Fill in the Blanks – Update for September 15, 2020

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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…

brush200915When 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.

hearme200406Section 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.”

fivegrams200915Meanwhile, 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.

error161022Fortunately, 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