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Duck Hunting With Steve Duarte – Update for May 21, 2024

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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.

THE FUTURE OF GUNS

duckhunting240521I got an email last week from a Georgia friend who’s been home for about eight years from serving a 30-year on a crack conspiracy, asking whether it was true that an appeals court said he could once again own a shotgun and pursue his passion for duck hunting (a passion not shared by the ducks themselves).

I explained that what he had read about, the 9th Circuit’s United States v. Duarte decision, did not necessarily say that and–even if it had–the last word hasn’t yet been written about the 2nd Amendment and 18 USC § 922(g)(1)’s felon-in-possession statute.

The May 9th Duarte decision had a 3-judge panel split 2-1, with the majority holding that the 2nd Amendment does not necessarily exclude people formerly convicted of felonies: New York State Rifle & Pistol Assn v. Bruen’s “scattered references to ‘law-abiding’ and ‘responsible’ citizens did not implicitly decide the issue in this case., the Court said. In the 2008 District of Columbia v. Heller decision, the Supreme Court made passing reference to the “presumptive[] lawful[ness]” of felon firearm bans, but the Duarte majority said the presumption “will no longer do after Bruen,” given Bruen’s call for a historical analysis and that the “felon firearm ban[] was never an issue the Heller Court purported to resolve.”

Eugene Volokh, a constitutional law professor at UCLA, told Courthouse News Service that Duarte “is a shift in Ninth Circuit law, and it differs from the view adopted by many circuits… However, it’s similar to what the Philadelphia-based 3rd Circuit decided last year in Range v. Attorney General.“

gunknot181009Duarte leaves open the possibility that felons convicted of violent crimes could still be prohibited from owning firearms. What’s more, the government wasted no time, last week filing a Petition for Rehearing En Banc and for Expedited Order Vacating Panel Opinion that asks the 9th Circuit for en banc review of Duarte. Appellant Steve Duarte has been ordered to file an opposition by May 30th.

En banc review may be put on hold pending the Supreme Court decision in the United States v. Rahimi decision, due any time before the end of June. The Rahimi case considers the constitutionality of a law banning gun possession by people subject to domestic violence restraining orders. Volokh said, “The question in Rahimi and the question in this case aren’t identical, but they share considerable similarities.”

gun160711For now, both Range and Duarte are “as applied” cases, not holding that § 922(g)(1) is unconstitutional on its face, that is, in every circumstance, but rather only “as applied to the one’s own particular conduct.” In Range, the petitioner had been convicted 25 years before on a food-stamp misdemeanor that carried a possible 2-year sentence (and thus fell under § 922(g)(1)’s prohibition). The Duarte majority held that the defendant lacked any violent crime conviction (despite the fact that one of his priors was for fleeing and eluding, which sounds like more than a simple jaywalking to avoid a cop on the same sidewalk Steve was on).

The § 922(g)(1) tide may be turning, but no one should feel as though it’s open season on gun ownership just yet, or–more to the point–that a felon-in-possession conviction is open to a successful constitutional attack.

Reason, Volokh: Ninth Circuit Panel Concludes That Some Felons May Have Second Amendment Rights (May 9, 2024)

Courthouse News Service, 9th Circuit finds that convicted felons also have Second Amendment rights (May 9, 2024)

Ammoland, Court Finds Convicted Felons have Second Amendment Rights (May 15, 2024)

New York Law Review, The Dog That Didn’t Bark Is Rewriting the Second Amendment (May 5, 2024)

ABA Journal, Ban on gun possession by felons is unconstitutional as applied to some offenders, 9th Circuit rules (May 13, 2024)

– Thomas L. Root

Good News and Bad News on Guideline Retroactivity – Update for May 20, 2024

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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.

USSC ESTIMATES RETROACTIVITY IMPACT OF 2024 GUIDELINE AMENDMENTS

retro240506The Sentencing Commission is considering whether to make several defendant-friendly changes in the proposed 2024 Guidelines amendments retroactive. One factor in any retroactivity analysis is how many inmates would be eligible for a sentence reduction.

Last week, the USSC staff released a study that was both good news and bad news for prisoners hoping to benefit from next November’s amendments. The staff found that if all four changes are made retroactive, a few more than 4,000 inmates might benefit.

The four changes for which retroactivity is on the table are

• the acquitted conduct amendment;

• a change to USSG § 2K2.1(b)(4)(B)(i) to provide that the 4-level enhancement gun serial number obliteration applies only if the serial number has been modified such the original number is “is rendered illegible or unrecognizable to the unaided eye;” and

• a change to Commentary in § 2K2.4 to permit grouping of 18 USC § 922(g) gun counts with drug trafficking counts where the defendant has a separate 18 USC § 924(c) conviction based on drug trafficking.

• a change in USSG § 2D1.1(a) to tie mandatory and high base offense levels to statutory maximum sentences instead of more complex factors that are not necessarily consistent with 21 USC § 841(b)(1)(A) or (B).

The USSC staff estimates if the Commission were to authorize retroactivity for the acquitted conduct amendment, 1,971 Bureau of Prisons inmates would be eligible to seek retroactive sentence chances.

If the Commission were to authorize retroactivity for the USSG § 2K2.1(b)(4)(B)(i) gun serial number obliteration amendment, 1,452 prisoners would be eligible to seek modification of their sentences.

Retroactive application of the change in USSG § 2K2.4 to permit grouping of § 922(g) gun counts with drug trafficking counts would benefit only about 102 BOP prisoners.

Finally, if the Commission were to authorize the retroactive application of the amendment changing USSG § 2D1.1(a) to tie mandatory and high base offense drug crime levels to statutory maximum sentences, the staff found, 538 prisoners would be eligible to seek a sentence reduction.

goodbad240520This is good news in that when the number of people eligible for retroactivity is too high, the Commission may not authorize retroactivity out of fear that the courts will be too clogged with § 3582(c)(2) motions. The 4,000 figure–about 2.5% of the BOP population–is far below a level that would pose an administrative problem. The bad news is the same, that only 2.5% of prisoners may be eligible for a sentence reduction.

By comparison, the Commission reports that 5,475 people have applied for the reduction in status-point criminal history (with 55% granted) and that 4,057 people have applied for the zero-point reduction (with 53% granted).

Note: A month ago, I reported that a proposed amendment reducing criminal history points for juvenile convictions was being considered for retroactivity. It is not, and frankly, I don’t know how I ever misread the USSC’s dense and confusing report a month ago to come up with that. I am sorry for the error.

US Sentencing Commission, Retroactivity Impact Analysis of Certain 2024 Amendments (May 17)

– Thomas L. Root

One Toke Over The Line, Sweet Jesus! – Update for May 17, 2024

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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.

DOJ PROPOSES RESCHEDULING MARIJUANA

onetoke240517If you remember Brewer & Shipley’s 1970 unlikely hit, “One Toke Over the Line” – a song conceived and written in a pot-induced fog – you were probably not there to hear it. The song became so popular that even Lawrence Welk – who reportedly didn’t know what a ‘toke’ was – had his in-house singers cover the hit on his show.

The Dept of Justice yesterday proposed changing the classification of marijuana from a Schedule I drug–that is, one with no medical use and a high potential for abuse–to a Schedule III substance–one with a moderate to low potential for physical and psychological dependence.

In a document known as a Notice of Proposed Rulemaking (NPRM), the DOJ suggests moving pot from a classification shared with heroin, MDMA and LSD, to one containing medically useful substances like Tylenol with codeine, ketamine, anabolic steroids and testosterone.

marijuanahell190918The proposed rule, to be published in the Federal Register, “recognizes the medical uses of cannabis and acknowledges it has less potential for abuse than some of the nation’s most dangerous drugs,” according to the Associated Press. A 60-day public comment period will begin after the NPRM is published, along with a review of the proposed regulatory reforms by a Drug Enforcement Administration administrative law judge. In all likelihood, a final rule will be pushed out by the Administration before the November election.

The proposal would not legalize marijuana outright for recreational use nor does it directly affect criminal statutes or people serving federal sentences for marijuana cultivation or distribution. Nevertheless, it is likely an incremental step toward making changes in marijuana Sentencing Guidelines and scheduling in the penalties sections of 21 USC 841(b)(1)(A) and (B).

The DOJ proposal comes on the heels of a Dept of Health and Human Services Department review of marijuana scheduling, begun at the urging of President Joe Biden in October 2022.

Biden posted a video on the X (formerly known as Twitter) in which he said the proposal to move pot to Schedule III constitutes “an important move towards reversing longstanding inequities.”

marijuana221111“Today’s announcement builds on the work we’ve already done to pardon a record number of federal offenses for simple possession of marijuana,” the president said. “Look, folks, no one should be in jail for merely using or possessing marijuana. Period… Far too many lives have been upended because of a failed approach to marijuana and I’m committed to righting those wrongs. You have my word on it.”

Writing in Reason, C.J. Ciaramella said

On the campaign trail in 2020, Biden promised to ‘decriminalize the use of cannabis,’ but despite lamenting the injustices of marijuana convictions and the barriers they create, and despite the continuing collapse of public support for marijuana prohibition, Biden still opposes full-scale legalization. Instead, his administration has focused on mass pardons and other measures that largely leave those injustices in place… But even getting the DEA to acknowledge that marijuana is not a drug on par with LSD and heroin is a victory of sorts.

While encouraged by the DOJ action, Cynthia W. Roseberry, director of policy and government affairs at the ACLU’s Justice Division, cautioned, “The rescheduling does not end criminal penalties for marijuana or help the people currently serving sentences for marijuana offenses. It is time for the federal government to further reduce prosecution of marijuana and instead put more resources towards investments that help communities thrive.”

Associated Press, Justice Department formally moves to reclassify marijuana as a less dangerous drug in historic shift (May 16, 2024)

Reason, DEA Moves To Reclassify Marijuana as a Schedule III Drug (May 16, 2024)

ACLU, ACLU Applauds President Biden’s Announcement to Reclassify Marijuana, Calls for More Reform (May 16, 2024)

– Thomas L. Root

BOP Medicine Has Another ‘Pants On Fire Moment’ in Brooklyn Courtroom – Update for May 16, 2024

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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.

LIAR, LIAR

liar151213A judge last week ordered the MDC Brooklyn medical director to appear in court to explain why the BOP didn’t give an inmate all his medication after an emergency appendectomy and then apparently lied to the man’s lawyers that he had gotten all of the required doses (and then for good measure, threw him in the SHU for spurious reasons).

US District Court Judge LaShann DeArcy Hall set a hearing for May 23rd after she grilled a BOP attorney during a status conference last week, repeatedly asking which BOP official “lied” that a detainee was given all five days of his antibiotic regimen. The medicine had been ordered by outside surgeons after the pretrial inmate received an emergency appendectomy that almost didn’t happen.

liar170209The order came after the detainee’s lawyers told the Court that their client’s “appendix may well have ruptured because MDC staff ignored his initial complaints; he was forced to recover from surgery without the aid of painkillers; and he is now being deprived of his antibiotics, which he must finish to avoid potential infection. Further, it appears that [the detainee] was sent to the SHU in retaliation for his reasonable demands for his medication and efforts to get counsel to assist him, and that the MDC revised the SHU ticket after the fact to justify its actions.”

NY Daily News, Judge Demands Answers From Brooklyn Federal Jail Officials Over Inmates Medical Woes (May 6, 2024)

Emergency Motion (Dkt. 330), United States v. Ricketts, Case No 22-cr-106 (EDNY)

– Thomas L. Root

Judge Slaps Additional Reporting Requirements on BOP Dublin Closure – Update for May 14, 2024

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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.

‘LOSE WEIGHT AND DRINK WATER’: JUDGE BLASTS BOP OVER FCI DUBLIN CLOSURE

dublinprotest240424U.S. District Judge Yvonne Gonzalez Rogers (N.D. Cal.) last week slammed the Federal Bureau of Prison’s April 15 closure of the FCI Dublin women’s prison in a 15-page order that ripped the agency’s “ill-conceived and, like Swiss cheese, full of holes” action, chronicled BOP violations of inmates’ rights, and ordered close monitoring and care of the incarcerated women who were moved to other facilities.

The Court noted that the Special Master it appointed in March–due to Dublin’s conditions and alleged staff retaliation–arrived at the prison on April 8 only to find that “the extent of FCI Dublin’s internal deterioration” and operational “conditions worse than BOP officials had led the Court to believe.” The BOP decided to close the facility later that week but buried the announced closure in a sealed attachment to an administrative filing provided to the Court on Friday, April 12.

The Judge complained that the BOP “informed the Court of its intention to close the facility over the following week, without specifying when such closure would begin. The BOP’s obfuscation is obvious. Its lack of transparency with the Court resulted in negative consequences. In fact, BOP Regional Director, Western Region Melissa Rios-Marques refused to advise Special Master [Wendy] Still of the impending closure, which would begin the next day, even when asked directly on Sunday, April 14.”

As some inmates could tell the BOP, that kind of lack of candor with government officials can get you locked up.

glasswater240514The Order takes the BOP to task for wantonly destroying inmate personal property, denying prisoners due process in disciplinary hearings, and ignoring administrative remedy and compassionate release requests. The Court gave special attention to inmate medical and mental health care. The Judge, who spent nine hours on an unannounced visit to Dublin in February, observed in March that she “heard a refrain so consistent from so many [inmate]s in different quarters and without prompting to demonstrate its reliability: in response to health concerns, medical staff told them to ‘lose weight and drink water.’” Now, the Court found that

FCI Dublin has repeatedly failed to follow BOP departmental policy related to completing timely health intakes; sick call access was delayed for extended periods; medical needs, including relative to communicable diseases, went untreated or lacked any follow up; and specialty appointments were not timely scheduled. Relatedly, drug treatment programs were not available for the majority of the population that requested treatment, despite drugs being rampant at the facility. Mental health services were also inadequate. By way of illustration, access to psychiatry services was blocked administratively despite repeated requests from the psychology department itself.

The Court ordered the BOP to provide a weekly status update for each transfer to the judge, the special master and attorneys for the incarcerated women who are suing the bureau. Also, the agency must submit a monthly staffing report for each prison where the women ended up, along with details of the mental health and medical health care they are receiving.

Pat Nolan, who helped draft the Prison Rape Elimination Act and served as a commissioner on the National Prison Rape Elimination Commission, wrote last week in The Hill:

The closure of FCI Dublin is just one more devious attempt by the BOP to make it harder for the inmates to get justice for the assaults they endured. The Bureau of Prisons just cannot be trusted to police itself. Congress is finally moving to impose outside oversight on the runaway agency. The Federal Prison Oversight Act (H.R. 3019) recently passed the Oversight Committee 41-1 and is expected to reach the House floor for a vote by the end of June. Until now the BOP has been able “grade its own papers.” Congress needs to end the cover-ups and pass H.R. 3019 right away.

Noting the timing of the special master appointment and the prison’s closure, Rep. Mark DeSaulnier (D-CA) asked, “So why was this decision made? And was it retaliation in some form or fashion?”

BOPbus240429DeSaulnier and Rep. Bobby Scott (D-VA) wrote to Attorney General Merrick Garland on April 25, criticizing the fact that “incarcerated people and staff are being transferred away from Dublin with almost no notice, no opportunity to prepare, and no opportunity to debrief or receive support. This is particularly concerning in its implications on the ability of Special Master Wendy Still to complete her investigation into the abuses perpetrated at FCI Dublin. Special Master Still requires full access to identify and speak to all victims, witnesses, and perpetrators in these matters in order to properly deliver justice. Without the ability of a proper staff review to be held, potential abusers are now simply returning back into the system with no accountability.”

Order, California Coalition for Women Prisoners v. BOP (Dkt. 300, May 8, 2024), Case No 4:23-cv-4155 (N.D. Cal.)

Associated Press, Closure of California federal prison was poorly planned, judge says in ordering further monitoring (May 9, 2024)

The Hill, Feds close prison dubbed the ‘Rape Club,’ but accountability is needed (May 7, 2024)

Rep Bobby Scott, Letter to Merrick Garland (April 25, 2024)

HR 3019, Federal Prison Oversight Act

– Thomas L. Root

Ninth Circuit Says 922(g)(1) Unconstitutional for Nonviolent Felons – Update for May 13, 2024

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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.

9th CIRCUIT HOLDS NONVIOLENT FELONS MAY POSSESS GUNS

A 9th Circuit panel held 2-1 last week that a defendant with five prior nonviolent felony convictions was not subject to 18 USC § 922(g)(1)’s prohibition on possessing guns or ammo under the Second Amendment.

In what may be the biggest Second Amendment ruling since the 3rd Circuit’s Range v. Attorney General decision last June, the 9th found that the Supreme Court’s New York State Rifle & Pistol Ass’n v. Bruen decision of 2022 means that § 922(g)(1)’s application to people with nonviolent felony convictions violates the Constitution.

throwgun240513Steve Duarte had five prior felony convictions for fleeing and eluding, possession of a controlled substance, and California’s own  felon-in-possession law when the police pulled him over for erratic driving. Naturally, Steve fled (it had worked so well for him before), and just as naturally, the police caught him. But before he was finally pulled over, Steve tossed a handgun from the car window.

The police recovered both the gun and Steve. The Feds picked up the case, with Steve being charged federally with § 922(g)(1) felon-in-possession. 

Steve went to trial and lost. But after Bruen was decided while his appeal was pending, Steve argued that his conviction was unconstitutional. He maintained that under Bruen, § 922(g)(1) “violates the Second Amendment as applied to him, a non-violent offender who has served his time in prison and reentered society.”

The 9th Circuit rejected its 2010 United States v. Vongxay holding that the Second Amendment doesn’t invalidate laws prohibiting convicted felons from possessing guns: “Vongxay is clearly irreconcilable with Bruen and therefore no longer controls because Vongxay held that § 922(g)(1) comported with the Second Amendment without applying the mode of analysis that Bruen later established and now requires courts to perform. Bruen instructs us to assess all Second Amendment challenges through the dual lenses of text and history….”

kidgun240125Applying Bruen, the 9th held that the handgun was an “arm” and Steve’s reason for carrying it–self-defense–“falls within the Second Amendment’s plain language.” The Circuit rejected the Government’s contention that the Second Amendment’s term “the people” excluded convicted felons “because they are not members of the ‘virtuous’ citizenry… Bruen and District of Columbia v. Heller foreclose that argument because both recognized the ‘strong presumption’ that the text of the Second Amendment confers an individual right to keep and bear arms that belongs to ‘all Americans,’ not an ‘unspecified subset’.”

Once the right is established, Bruen holds, the Government must prove that § 922(g)(1)’s prohibition as applied to the defendant in question “is part of the historical tradition that delimits the outer bounds of the” Second Amendment right. The Government could not show that disarming nonviolent felons had a “well-established and representative historical analogue” that “imposed a comparable burden on the right of armed self-defense” that was “comparably justified” as compared to § 922(g)(1)’s “sweeping, no-exception, lifelong ban.”

“We do not base our decision on the notion that felons should not be prohibited from possessing firearms,” the decision noted. “As a matter of policy, 922(g)(1) may make a great deal of sense. But ‘the very enumeration of the Second Amendment right’ in our Constitution ‘takes out of our hands… the power to decide’ for which Americans ‘that right is really worth insisting upon.”

The impact of Duarte may be attenuated, however, because the Supreme Court is expected to issue its decision in United States v. Rahimi sometime in the next six weeks. Rahimi, which focuses on whether §922(g)(8)’s prohibition on people subject to a domestic relations protection order possessing guns is constitutional after Bruen, is widely expected to further define the Second Amendment limits of § 922(g).

gunfreezone170330Writing in his Sentencing Law and Policy blog, Ohio State University law professor Doug Berman observed that “[t]he location and timing of this ruling is almost as interesting as its substance. Many hundreds of § 922(g)(1) cases are prosecuted in this big circuit each year, so the echo effects of this ruling could prove profound (though I would guess not that many involve persons with only nonviolent priors). And, we are likely only weeks away from the Supreme Court finally handing down an opinion in the Rahimi case to address the application of Bruen to a different section of § 922(g).

Berman observes:

Most folks reasonably expect the Rahimi ruling to provide more guidance on how the Bruen Second Amendment test is to be applied to broad federal criminal gun control laws. I would expect the coming Rahimi opinion will lead to the 9th Circuit reviewing this important Duarte ruling in some way, though whether that is in the form of en banc review or panel reconsideration might turn on what Rahimi actually says.

United States v. Duarte, Case No 22-50048, 2024 U.S. App. LEXIS 11323 (9th Cir, May 9, 2024)

New York State Rifle & Pistol Assn v. Bruen, 597 US 1 (2022)

District of Columbia v. Heller, 554 US 570 (2008)

Sentencing Law and Policy, Split 9th Circuit panel declares federal felon-in-possession criminal law unconstitutional as applied to non-violent offenders after Bruen (May 10, 2024)

– Thomas L. Root

No Second Chance for Federal Elderly Offender Home Detention? – Update for May 9, 2024

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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.

SECOND CHANCE ACT REAUTHORIZATION BILL INTRODUCED, BUT NOTHING’S IN IT FOR FEDERAL PRISONERS

second170119Republican Carol Miller (WV) and 10 co-sponsors have introduced a bill to reauthorize the Second Chance Act of 2007 by extending a number of its grants and programs intended to benefit states and counties for prisoner reentry after serving their sentences. All of which is good.

Only two provisions in the 2007 Act are of interest to federal prisoners–the provision authorizing (but not requiring) the Federal Bureau of Prisons to grant up to 12 months of halfway house and the Elderly Offender Home Detention pilot program.

The right to grant up to 12 months of home confinement–enshrined in 18 USC § 3624(c)–remains unaffected by the proposed bill.

Parenthetically, prisoners complain all the time that the BOP is denying them their Second Chance Act rights to 12 months of halfway house, but the Act only lets the BOP grant up to 12 months of halfway house (it was a max of 6 months before that): the BOP is not obligated to grant as much as a single day of halfway house time if it deems it unnecessary or undesirable to do so.

elderly190109Given that the SCA of 2007 introduced the elderly offender pilot home detention program, which let the BOP send nonviolent offenders age 60+ home for the last third of their sentences, I hoped the reauthorization bill would extend the date of that program. It expired September 30, 2023. Unfortunately, the reauthorization bill does not mention the EOHD program at all.

EOHD is a favorite of Senate Judiciary Committee chairman Richard Durbin (D-IL) and Sen Charles Grassley (R-IA). If the bill passes the House and goes to the Senate, there is a decent chance the EOHD will be added before the bill gets to the Senate floor. However, the bill would have to make it to a vote in the House first, a tall order given that chamber’s dysfunction this year.

HR 8020, Second Chance Reauthorization Act of 2024

– Thomas L. Root

District Court Sends Prisoner Home From Home Confinement – Update for May 7, 2024

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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.

DISTRICT COURT GRANTS COMPASSIONATE RELEASE FROM HOME CONFINEMENT

It can be challenging to explain to prisoners that what one district judge may decide on a compassionate release motion has almost no relevance to (and provides no precedential authority for) what another judge may decide in identical circumstances. What’s more, there are 677 district judge positions in the country (not including all of the district judges on senior status, who still carry a 25% caseload or better). That means there are well over 700 different opinions on how discretion should be exercised in considering a compassionate release motion.

odouls240507Still, it has almost been an article of faith that a prisoner already on home confinement is not going to get a district court to grant her compassionate release motion. Home confinement, after all, is to freedom what O’Douls is to beer. Not the real thing, but it sure beats having nothing to drink at all. Compassionate release (actually “sentence reduction” under 18 USC § 3582(c)(1)(A)(i)) requires that you show “extraordinary and compelling reasons” why your sentence should be reduced. When you’re already at home, your circumstances have to be truly extraordinary and compelling in order to get your sentence terminated early.

However, a Montana district court last week handed down what Ohio State University law professor Doug Berman called “an interesting new federal court order granting a § 3582(c)(1)(A)(i) sentence reduction motion based in part on the difficulties associated with extended home confinement.” In so doing, the judge turned the article of faith on its head.

Linda Reynolds, a 75-year-old career offender, had been doing her 262-month sentence for methamphetamine distribution since 2012 (and had served 53% of it). She was sent home on CARES Act home confinement two years ago after serving 114 months of her sentence. A few months ago, she filed a compassionate release motion arguing that her rehabilitation, age, medical conditions, unusually long sentence, and difficulties of extended home confinement together warrant termination of her sentence.

Last week, the district court granted her motion. The court found that Linda had completed several courses and certificates while in prison, maintained employment “throughout most of her time on home confinement,” and has stayed sober (no mean feat for someone who has battled addiction her whole adult life).

JSIN240507Two of the court’s analyses stood out. First, the district court resorted to the Sentencing Commission’s JSIN (Judiciary Sentencing Information) platform that compares sentences nationwide for people with the same guideline, offense level, and criminal history category. JSIN (available for free on the Sentencing Commission website) reported that courts imposed an average term of 188 months and median of 180 months, “nearly seven years shorter than Reynolds’s term.” In fact, the government had recommended a sentence of 188 – 235 months back in 2012. The district court found that Linda’s sentence – despite being what Guidelines Chapter 4B called for – “appears to be unusually long compared to her co-defendants, similarly situated defendants, and the sentence recommended by the government.”

Second, the court found that the terms and conditions of Linda’s home confinement had prevented her “from receiving needed medical care and have increased [her] out-of-pocket medical expenses.” Her status of still being in BOP custody although on home confinement prevented her from enrolling in Medicare and obtaining low-income housing, which would have put her in town and cut her transportation costs for getting to her work training program, meeting her counselor twice a week, and mak[ing] her four monthly UAs [urinalyses for drug use]. Reynolds’s status on home confinement also has prevented Reynolds from obtaining a checking account, from engaging in work that would produce supplemental income, and from being able to fully interact with her family members and support system.”

home190109While Linda’s “age, medical conditions, home confinement status, and long sentence would not rise to the level of extraordinary and compelling when viewed individually,” the Court held, “[t]hese factors appear, however, to rise to that level when viewed together… The Court finds that these factors interact with each other to create extraordinary and compelling reasons to reduce Linda’s sentence.”

Sentencing Policy and the Law, Notable new compassionate release ruling finding home confinement difficulties justified sentence reduction (April 30, 2024)

United States v. Reynolds, Case No 4:12-cr-0084 (D.Mont, April 30, 2024)

U.S. Sentencing Commission, Judiciary Sentencing Information (JSIN)

– Thomas L. Root

USSC Amendments Going Retro? Your Opinion is Wanted – Update for May 6, 2024

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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.

GUIDELINE AMENDMENT RETROACTIVITY COMMENTS OPEN

retro160110The Sentencing Commission published the 2024 proposed Guideline amendments in the Federal Register last Friday, opening up a public comment period on whether certain proposals should be made retroactive.

The publication of the proposed amendments, a required step in their adoption, provides that the proposed changes are intended to become effective November 1, 2024. The statute authorizing the Sentencing Commission (28 USC § 994) gives Congress the right to override some or all of the changes, a power that has almost never been used in the Guidelines’ 28 years of existence.

The proposed retroactivity would apply to the

• the acquitted conduct amendment (USSG § 1B1.3);

• a change to juvenile sentences that eliminates adding 2 points for prior juvenile incarcerations of more than 60 days;

•  a change to §2K2.1(b)(4)(B)(i) to provide that the 4-level enhancement gun serial number obliteration applies only if the serial number has been modified such the original number “is rendered illegible or unrecognizable to the unaided eye;” and

• a change to Commentary in USSG § 2K2.4 to permit grouping of a § 922(g) gun count with a drug-trafficking count where the defendant has a separate 18 USC § 924(c) conviction based on drug trafficking.

retro240506Comments on retroactivity should be filed by June 21, 2024. Written reply comments, which may only respond to issues raised during the original comment period, should be received not later than July 22, 2024.

Comments may be submitted electronically to the Commission or mailed to

US Sentencing Commission
One Columbus Circle NE, Suite 2-500
Washington, DC 20002-8002
Attn: Public Affairs—Issue for Comment on Retroactivity.

Sentencing Guidelines, 89 FR 36853 (May 3)

– Thomas L. Root

Feds To Reschedule Marijuana As Prescription Drug – Update for May 3, 2024

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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.

MARIJUANA BECOMING OFFICIALLY ‘COOL’

mrnatural240503The Justice Department last Tuesday said that it had recommended easing restrictions on marijuana in what could amount to a major change in federal policy.

A DOJ spokeswoman said the proposed rule, which hasn’t yet been made public, would downgrade marijuana from Schedule I to Schedule III, making it obtainable with a prescription.

The change does not end the criminalization of the drug. However, it is a significant shift in the government’s view of the safety and use of marijuana for medical purposes and reflects President Biden’s effort to liberalize marijuana policy in a way that puts it more in line with the public as increasingly more Americans favor legalizing the drug. The proposal would recognize the medical uses of marijuana and acknowledge it has less potential for abuse than some of the nation’s more dangerous drugs.

Rescheduling would not legalize marijuana outright for recreational use. But there can be little doubt that such a change–recreational cannabis (the politically popular term for marijuana) is now legal in 24 states–is coming.

The change may also lead to beneficial changes in Section 2D1.1 of the U.S. Sentencing Guidelines, where the base offense level for marijuana could drop in response to its falling from Schedule I to III.

In October 2022, Biden pardoned thousands of people convicted of simple marijuana possession under federal law and called upon regulators to review whether the drug should be reclassified, saying “it doesn’t make sense” that the government controls pot more tightly than cocaine or fentanyl.

marijuanahell190918Once the Office of Management and Budget signs off, the DEA will take public comment on the plan to move marijuana from its Schedule I–alongside heroin and LSD–to Schedule III, alongside ketamine and some anabolic steroids. After public comment and review by an administrative judge, the agency will publish the final rule.

“Today, the Attorney General circulated a proposal to reclassify marijuana from Schedule I to Schedule III,” DOJ Director of Public Affairs Xochitl Hinojosa said in a statement. “Once published by the Federal Register, it will initiate a formal rulemaking process as prescribed by Congress in the Controlled Substances Act.”

The Los Angeles Times said, “Late last year, Biden pardoned people who were convicted of using marijuana on federal land. That tiny step was merely a down payment on his promise of decriminalization. So is the Justice Department’s most recent move. The federal government should pick up the pace.”

Some in the government may have done so. Last Wednesday, Senate Majority Leader Charles Schumer, (D-NY), Senate Finance Committee Chairman Ron Wyden (D-OR), and Sen Cory Booker (D-NJ) reintroduced the Cannabis Administration and Opportunity Act, legislation to end federal marijuana prohibition by removing it totally from the Controlled Substances Act.

The bill also aims to empower states to create their own cannabis laws; ensure federal regulations protect public health and safety; and prioritize restorative and economic justice, according to the sponsors.

marijuana221111While the DEA’s move to reclassify marijuana is a “necessary step” that’s “long overdue,” Schumer said, it’s not the end of the story. “It’s not all we need to do,” he said. “It’s time for Congress to wake up to the times and do its part by passing the cannabis reform that most Americans have wished for. It’s past time for Congress to catch up with public opinion and to catch up with the science.”

New York Times, Justice Dept. Recommends Easing Restrictions on Marijuana (April 30, 2024)

Wall Street Journal, Biden Administration Aims to Reclassify Marijuana as Less Dangerous Drug (April 30, 2024)

Associated Press, US poised to ease restrictions on marijuana in historic shift, but it’ll remain controlled substance (April 30, 2024)

Los Angeles Times, Editorial: Reclassifying marijuana is not decriminalization, but is a welcome step in that direction (May 1, 2024)

Cannabis Business Times, Senate Democrats Introduce Bill to Federally Legalize Cannabis (May 1, 2024)

S.4226, A bill to decriminalize and deschedule cannabis, to provide for reinvestment in certain persons adversely impacted by the War on Drugs, to provide for expungement of certain cannabis offenses, and for other purposes (May 1, 2024)

– Thomas L. Root