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SCOTUS Davis Decision Already Cutting Sentences – Update for July 16, 2019

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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.

DAVIS IS ALREADY HELPING DEFENDANTS

The ink isn’t yet dry on the Supreme Court’s United States v. Davis decision, but it is already being applied by lower courts.

shortnorth190716The 6th Circuit didn’t do many favors to the Short North Posse when it upheld the convictions and sentences of five defendants who had been found guilty of all sorts of drug-related mayhem in Columbus, Ohio. Almost all of their appeal issues were shot down. Two of the five, however, won on a single issue, and it was a whopper.

For their participation in a home invasion and murder, Chris Harris and Cliff Robinson were convicted of murder by firearm during a crime of violence under 18 USC §§ 924(c) and (j)(1). The government, loving conspiracies as it does, based the pair’s § 924(c) convictions on conspiracy to commit a Hobbs Act robbery under 18 USC § 1951(a). After all, proving a conspiracy is much easier than proving a substantive act (like a robbery).

When the government charged Chris and Cliff and the rest of the Posse back in 2014, no one foresaw Johnson v. United States, the 2015 case in which the Supreme Court declared the residual clause of 18 USC § 924(e) unconstitutionally vagueness. In the Short North Posse appeal, the government was forced to admit that a conspiracy to commit a Hobbs Act robbery could only be a crime of violence under 18 USC § 924(c)(3)(B)’s residual clause. That clause holds that “a ‘crime of violence’ is a felony offense ‘that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”

violence160110On appeal, Chris and Cliff argued that their 924(c) convictions had to be vacated because § 924(c)’s residual clause is unconstitutionally vague. Naturally, the government argued that Johnson had nothing to do with § 924(c)’s residual clause. However, eight days before the Short North Posse decision, the Supreme Court held in Davis that  the § 924(c) residual clause suffered from the same infirmity that Johnson invalidated. 

Davis conclusively held that a conspiracy to commit a violent act, no matter how violent the act, is not a “crime of violence” under 18 USC § 924(c). Thus, the Short North Posse decision held that “[b]ecause the Government relies only on that now-invalidated clause to support [Chris and Cliff’s] convictions under § 924(c), those convictions must be set aside.”

This is the first Davis win I have seen. There will surely be many to follow.

United States v. Ledbetter, 2019 U.S. App. LEXIS 19918 (6th Cir. July 3, 2019)

– Thomas L. Root

DOJ Says It Will Meet First Step Act July 19th Deadline for Risk System, Good Time Calculations – Update July 15, 2019

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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.

WHO’DA THOUGHT?

The First Step Act set a hard deadline of 210 days after passage – July 19, 2019 – for recalculating the 7-days-a-year extra good time and for Dept of Justice to adopt a new risk assessment program to be used by the BOP.

deadline190715Now, against the odds, the Attorney General says DOJ and BOP will meet the July 19 deadline for extra good time and adoption of a risk assessment system, despite DOJ blowing the deadline for setting up a risk assessment committee last winter because of the government shutdown.

USA Today and the AP both report that DOJ is expected to lay out the risk assessment rules on July 19, as required by First Step.

Adoption of the risk assessment program is critical, because once it is in place, the BOP then has six months to roll out the programs it identifies as like to reduce recidivism. Eligible inmates taking those programs will earn additional good time at the rate of from 10 to 15 days a month.

No one yet knows what programs will be eligible, but First Step encourages the BOP to be expansive, maybe even including some kinds of inmate employment. Every day I hear from people wondering whether ACE (adult continuing education) or required GED classes or UNICOR employment or even prison orderly jobs will earn extra good time. No one yet knows. But with the risk assessment program in place, the BOP will begin to identify what will and will not count.

July 19th reportedly will see release of about 2,200 additional federal inmates based on the 7-days-a-year good time being awarded for every year of one’s sentence. Fox News reported last Monday that July “will see the largest group to be freed so far under a clause in the First Step Act that reduces sentences due to “earned good time.” In addition to family reunification, the formerly incarcerated citizens, 90 percent of whom have been African-American, hope to get employment opportunities touted by Trump last month at the White House as part of the “Second Chance” hiring program.”

norose190715All is not roses with the earned time program, however. FAMM president Kevin Ring said last week that more attention and money is needed to support the new programs. FAMM is also unhappy that a long list of inmates, including those convicted of terrorism, sex crimes, some gun offenses, some fraud crimes and a few drug offenses will be excluded from qualifying for earned time credits. “There is going to be some frustration,” Ring said.

Acting BOP Director Hugh Hurwitz also acknowledged that the exclusions represent a looming inmate management test for prison staffers. “How do you manage inmates who are getting the credits and those who are not? That will be a challenge as we roll this out,” Hurwitz said.

The roll-out comes at a time when the BOP is grappling with persistent staffing shortages. To make up for a shortage of COs, officials have ordered teachers, nurses, kitchen workers and other staffers to serve as correctional officers. The practice, known as augmentation, draws staff away from the kinds of programs that officials are now touting.

Newly-installed Deputy Attorney General Jeffrey Rosen, who toured FCI Englewood last week, admitted First Step provisions “will put additional demands” on prison staffers. He told USA Today that DOJ was reviewing staffing across the BOP, but he believed that current personnel levels were not jeopardizing safety.

multi190715“Everyone who is trained to work at a federal prison learns to participate in the security role,” Rosen said. “But we’re looking at that and plan to do whatever makes sense.”

A number of advocates, however, have called for stronger oversight of the implementation by both BOP and the AG’s office, and for more funding. “We have concerns it might not be implemented appropriately,” said Inimai Chettiar, legislative and policy director at the Justice Action Network.

USA Today, Roofing, paving, artisanal bread: Feds look to kick-start law that will free hundreds of inmates (July 11)

Aiken Standard, A.G. William Barr, Sens. Graham, Scott laud First Step Act during Edgefield prison visit (July 12)

Associated Press, Around 2,200 federal inmates to be released under reform law (July 13)

Fox News, Thousands of ex-prisoners to reunite with their families this month (July 8)

– Thomas L. Root

Did You Mean It When You Said It? – Update for July 12, 2019

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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.

I SAID IT, BUT I DIDN’T MEAN IT

Just about anyone who has pled guilty has suffered through a  change-of-plea hearing under Rule 11 of the Federal Rules of Criminal Procedure – in which they were required to say they were happy with their lawyers, they fully understood the charges, and that no one had pressured them to sign the deal. Some of the answers are uninformed: How, for example, does anyone know whether defense counsel got things right? Others are outright lies: of course, counsel or family or even the government has applied pressure that would make Tommy Torquemada envious.

hitoverhead190712Later, when the defendant discovers his lawyer’s incompetence or the government’s connivance, he or she files a post-conviction habeas corpus motion under 28 USC 2255. And then, the defendant gets hit over the head with answers given at the Rule 11 hearing. No one reasonably believes that the Rule 11 plea answers have any validity, but that’s the game.

When Sergio Murillo signed his plea agreement, he had his lawyer get a lot of references to deportation taken out of the document. His lawyer bargained his charge down to conspiracy, which she told him would not lead to automatic deportation. But the plea agreement still had Sergio agreeing in one section that “because removal and other immigration consequences are the subjects of a separate proceeding, [Appellant] understands that no one, including [Appellant’s] attorney or the District Court, can predict to a certainty the effect of [Appellant’s] conviction on [Appellant’s] immigration status. [Appellant] nevertheless affirms that [Appellant] wants to plead guilty regardless of any immigration consequences that [Appellant’s] plea may entail, even if the consequence is [Appellant’s] automatic removal from the United States.”

Later, Sergio learned he would be deported, and he filed a 2255 motion arguing that his lawyer was ineffective for telling him otherwise. He wanted to take his plea back and go to trial. The district court cited what Sam had agreed to in the plea agreement, and denied the 2255 without a hearing.

don-t-read-too-much-into-it-you-ll-get-nothing-outTwo weeks ago, the 4th Circuit reversed, and ordered the district court to hold an evidentiary hearing. The Court ruled that the district court erred by giving dispositive weight to the one sentence in Sergio’s plea agreement. Instead of weighing evidence that Sam would have rejected the plea agreement had he known it required deportation against evidence that he would have accepted it nonetheless, the district court found that single sentence “dispositive.”

“Giving dispositive weight to boilerplate language from a plea agreement is at odds with Strickland [v. Washington]’s fact-dependent prejudice analysis,” the Circuit ruled. “To determine whether a defendant was prejudiced by an attorney error, Strickland requires courts to undertake an individualized examination of the proceedings in which the error is alleged… A categorical rule affording dispositive weight to a prior statement is ill suited to an inquiry that demands a ‘case-by-case analysis.’”

United States v. Carillo Murillo, 2019 U.S. App. LEXIS 18725 (4th Cir. June 24, 2019)

– Thomas L. Root

Keep on Gunnin’ – Update for July 11, 2019

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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.

GUN AND RE-GUN

gunknot181009The Sentencing Commission does not have enough members for a quorum, so it cannot adopt any Guidelines changes. It still has a busy staff, however, and keeps grinding out studies.

At the end of June, the Commission issued a study of about 3,500 federal firearms offenders, reporting that

•   Gun offenders commit new crimes at a higher rate than non-gun offenders, with 68% being arrested for a new crime during the eight years following release, compared to 46% of non-gun offenders, with higher percentages in every age and criminal history group;

• Gun defendants re-offend more quickly than non-gun defendants. The median time from release to the first new crime was 17 months, compared to 22 months for non-gun people; and

•   More gun offenders were rearrested for serious crimes than non-gun offenders, with assault was the most serious new charge for 29%, followed by drug trafficking (14%) and public order crimes (12%). Of the non-gun offenders, assault was the most common new charge for 22%, followed by 19% for public order crimes and 11% for drug trafficking;

United States Sentencing Commission, Recidivism Among Federal Firearms Offenders (June 27, 2019)

– Thomas L. Root

Judge Holds Change in Drug Sentence Minimums “Extraordinary” Grounds for Sentence Reduction – Update for July 10, 2019

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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.

We’re back after a well-deserved week off in Iceland (where the country’s five prisons each house about 30 (not a typo) inmates, who make an average of 28,000 ISK ($290.00) a month.

COURT GRANTS COMPASSIONATE RELEASE BECAUSE OF CHANGE IN DRUG MINIMUMS

A Houston federal district judge two weeks ago re-sentenced Arturo Cantu-Rivera to time served, negating two life sentences in a grant of an 18 USC 3582(c)(1)(A)(i) compassionate release motion.

Art was doing time on a drug charged, which had been enhanced by an 851 motion to mandatory life in 1990. The court cited his having completed over 4,000 hours of programming, his tutoring GED classes, his age of 69, and his health, calling all of this an “extraordinary degree of rehabilitation.”

extraordinary190710But as well, the judge noted that the change in the drug mandatory minimums under the First Step Act was part of the “extraordinary and compelling” analysis: “Finally, the Court recognizes as a factor in this combination the fundamental change to sentencing policy carried out in the First Step Act’s elimination of life imprisonment as a mandatory sentence solely by reason of a defendant’s prior convictions… The combination of all of these factors establishes the extraordinary and compelling reasons justifying the reduction in sentence in this case.”

Memorandum Opinion and Order, United States v. Canto-Rivera, Case No. H 89-204 (SD Tex, June 24, 2019)

– Thomas L. Root

Guidelines Are A “Disaster,” Judge Says – Update for July 3, 2019

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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.

JUDGE BLASTS SENTENCING REFORM ACT

Democratic presidential candidate Joe Biden has taken some heat recently because he – like everyone else at the time – supported the 1994 crime control bill that so contributed to mass incarceration. But a federal judge writing in last Sunday’s Washington Post said critics should not stop with 1994.

trainwreckguidelines190703Eastern District of Wisconsin Judge Lynn Adelman wrote that the Sentencing Reform Act of 1984, the U.S. Sentencing Commission and the Guidelines “have been a disaster, and a debate by lawmakers about their status is long overdue.” Partly due to the sentencing guidelines, about 20% of all people imprisoned in the world are imprisoned in the United States (which has 4.27% of the world population) “The Sentencing Reform Act, and the commission and its guidelines,” the Judge said, “contributed substantially to this inexcusable state of affairs.”

The judge noted that after the Guidelines became advisory in the 2005 United States v. Booker case, the average federal sentence increased from 28 to 50 months and, with the abolition of parole, the average time a defendant served increased from 13 to 43 months. Between 1987 and 2019, the number of federal prisoners increased from about 50,000 to 219,000 before dropping to about 180,000.

badjudge160502Even after the Guidelines became advisory instead of mandatory, Judge Adelman complained, “district court judges have largely failed to… ameliorate the harshness of the federal sentencing system.” After Booker, average sentences dropped from 47.9 months to 44 months, but the percentage of defendants receiving prison-only sentences increased from 83.3% in 2003 to 87.8% in 2018.

The Judge argues that the Sentencing Reform Act should be substantially revised. “Congress was foolish to have abolished parole,” he wrote, “and should overturn that decision.”

Washington Post, There’s another tough-on-crime law Democrats should focus their criticism on (June 30)

– Thomas L. Root

F.R.Crim.P. 36: There’s Life in the Old Carcass – Update for July 2, 2019

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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.

MAYBE RULE 36 IS NOT TOOTHLESS AFTER ALL

Everyone knows that Rule 36 of the Federal Rules of Criminal Procedure permits a defendant to move to correct a clerical error in the criminal case judgment. Over the years, I have found it useful mainly to correct mistakes in the defendant’s name, which invariably become part of the BOP record. Beyond that, we all are aware that Rule 36 cannot correct mistakes of fact or law, and for sure cannot lead to a reduced sentencing.

error161101Last week, the 4th Circuit suggested that maybe we have it wrong. Lamont Vanderhorst’s district court denied his Rule 36 motion to correct a clerical error in his Presentence Report. The PSR characterized one of his state convictions as “conspiracy to sell and deliver cocaine.” In fact, the conviction was “conspiracy to traffick [sic] cocaine by transportation.”

As a result of the clerical error, the district court wrongly sentenced Lamont as a career offender.

The district court denied the motion, holding that Rule 36 cannot serve as a means of pursuing resentencing. The Circuit disagreed, holding that “Rule 36 may serve as an appropriate vehicle for a defendant to obtain resentencing when a clerical error likely resulted in the imposition of a longer sentence than would have been imposed absent the error.” The 4th said that “when an error is purely a ‘clerical error in a judgment, order, or other part of the record, “the policy of finality is trumped and a court is authorized to correct the error at any time.”

Unfortunately, Lamont had four other priors that supported his career offender designation, so he was denied relief anyway. But the principle makes Rule 36 potentially a powerful gadget in the collateral-relief toolbox.

United States v. Vanderhorst, 2019 U.S. App. LEXIS 18886 (4th Cir. June 25, 2019)

– Thomas L. Root

October Term 2018 Ends With A Whimper – Update for July 1, 2019

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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 SUPREME COURT’S OUT FOR SUMMER… BUT NOT FOREVER

scotus170627The Supreme Court stumbled across the finish line of its current session (called October Term 2018, because that’s when it began) last Friday, ending with a couple of fumbles and a punt. There will be nothing more from the nine Justices – except for the occasional action on a stay of execution – until the “long conference” in the last week of September. 

Then, come Monday, October 7, 2019… the Court will be back at it with October Term 2019.

The last week started out to be a significant one for federal criminal law. Last Monday, the Court handed down the Davis decision, with United States v. Haymond following two days later. For those who follow the Court for criminal law, that just left Mitchell v. Wisconsin and Carpenter v. Murphy for the Court’s final day on Thursday. Mitchell was a 4th Amendment case, asking whether blood can be drawn from an unconscious motorist without a warrant (yes, it can). Carpenter is a big deal for Oklahoma, Native Americans and the many states with reservations inside their borders, because the 10th Circuit held that most of eastern Oklahoma – including the City of Tulsa – still belonged to the Cherokee Nation. It also matters to anyone with a prior Oklahoma state conviction from that area, because all of those convictions might be invalid.

On Thursday, the Court issued big decisions on the census form citizenship question and how Congressional districts are drawn, in each case sort of kicking the can down the road. So it was no surprise when the Chief Justice announced that Carpenter will not be decided this year, but instead will get reargued in the fall.

domino190422But remember how Davis was called Johnson’s “last domino?” Well, it is not. On Friday, the Court issued its final order list of the Term, granting review to Shular v. United States, another case raising an important issue in the application of the Armed Career Criminal Act, this one on the drug trafficking side. For an ACCA conviction, you have to have three prior convictions that are crimes of violence or drug cases. In Shular, the question is whether the determination of a “serious drug offense” under the ACCA requires the same categorical approach used in the determination of a violent felony, the approach just approved in Davis. There is little doubt that the holding will apply to drug crimes underlying 18 U.S.C. § 924(c) convictions – mandatory consecutive sentences starting at five years for using a gun in a drug offense or crime of violence – as well.

Also, in Kisor v. Willkie, a case that asks whether a court must defer to an agency interpretation of its own ambiguous regulation, the Court last Thursday declined to overrule a longstanding line of cases instructing courts to defer to an agency’s interpretation of its own regulation, but at the same time, he suggested that the doctrine does not apply in every case where an agency is interpreting its own rules. The tepid ruling leaves the deference doctrine a muddled mess the Court will almost certainly have to address again.

United States v. Davis, Case No. 18-431 (decided June 24, 2019)

United States v. Haymond, Case No. 17-1672 (decided June 26, 2019)

Carpenter v. MurphyCase No., Case No. 17-1107 (to be reargued in Fall 2019)

Kisor v.  Willkie, Case No. 18-15 (decided June 27, 2019)

Shular v. United States, Case No. 18-6662 (cert. granted June 28, 2019)

– Thomas L. Root

SCOTUS Remands Haymond With Muddled Opinion – LISA Update for June 27, 2019

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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.

SUPREME COURT BADLY SPLIT ON SUPERVISED RELEASE REVOCATION

The Supreme Court today fractured badly on whether a supervised release revocation requires a jury finding beyond a reasonable doubt.

The issue was an extreme one: Under 18 USC § 3583(k), a supervised release violation involving certain statutes prohibiting child sex abuse or pornography requires a mandatory five-year additional term. The Tenth Circuit had declared the provision unconstitutional, raising the question whether ANY supervised release violation that included a prison term could be found unless a jury did so beyond a reasonable doubt.

scotussplit190627Yesterday, four justices found that supervised release violations that led to prison terms had to be found by a jury beyond a reasonable doubt. Justice Neil Gorsuch wrote, “The lesson for this case is clear: Based solely on the facts reflected in the jury’s verdict, Mr. Haymond faced a lawful prison term of between zero and 10 years. But just like the facts the judge found at the defendant’s sentencing hearing in Alleyne, the facts the judge found here increased “the legally prescribed range of allowable sentences” in violation of the Fifth and Sixth Amendments.”

However, four Justices are not a majority. Justice Breyer, in a concurring opinion, agreed that the particular provision at issue, 18 USC § 3583(k), is unconstitutional. But because the role of the judge in a typical supervised-release proceeding is consistent with traditional parole and because Congress clearly did not intend the supervised release system to differ from parole in this respect, he did not agree with the other four that the Apprendi line of cases applied in the supervised-release context.

Four other justices dissented sharply.

Under precedent, § 3583(k) is declared unconstitutional, but Justice Breyer’s narrower decision controls. Thus, for now, traditional supervised release violations remain free of a reasonable-doubt Apprendi v. New Jersey requirement.

A final opinion day for the Supreme Court’s year is set for today. We expect the decision in Carpenter v. Murphy at that time.

United States v. Haymond, Case No. 17–1672 (June 26, 2019)

– Thomas L. Root

Compassionate Release Gains Legs – Update for June 26, 2019

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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.

SHOWING COMPASSION

Last week was a good one for compassionate release, the shorthand way of referring to “extraordinary and compelling” reasons for a sentence reduction under 18 USC 3582(c)(1).

compassion160208FAMM, the Washington Lawyers’ Committee, and the National Association of Criminal Defense Lawyers announced the launch of the “Compassionate Release Clearinghouse,” a collaborative pro bono effort among the organizations designed to match qualified prisoners with legal counsel should they need to fight a compassionate release denial or unanswered request in court.

“People who can barely make it out of their beds in the morning should not have to go into court alone against the largest law firm in the nation,” said Kevin Ring, president of FAMM. “Congress was clear that it wanted fundamental changes in compassionate release, yet we’ve seen prosecutors continue to fight requests from clearly deserving people, including individuals with terminal illnesses.”

The Clearinghouse will recruit, train, and provide resources to participating lawyers. It has already matched pro bono attorneys with prisoners in more than 70 cases. The Clearinghouse is actively recruiting additional attorneys and law firms to join in the effort.

Regular readers know that I have been calling the First Step Act’s changes to 3582(c)(1) a ‘killer’ provision, because while Congress may have been focused on getting terminally ill inmates home, it wrote the amendment much more broadly than that. The momentum to use the sentence reduction subsection to its full potential is increasing.

Sentencestack170404Georgetown law professor Shon Hopwood last week published an article at Prison Professors arguing that “there is a viable argument for why federal district court judges can use the compassionate release statute, as amended by the First Step Act, as a second look provision to reduce a sentence for people in federal prison if “extraordinary and compelling reasons” are present.” Shon has written a law review article and a sample brief he will be using to challenge a 213-year federal sentence consisting of stacked 18 US 924 convictions. Both discuss the reasons “why federal judges can and should give sentence reductions in cases where people in federal prison have a demonstrated record of rehabilitation in addition to compelling reasons why they were sentenced too harshly.”

NACDL, FAMM, Washington Lawyers Committee, NACDL Launch Compassionate Release Clearinghouse (June 19)

Prison Professors, A Second Look at a Second Chance: Seeking a Sentence Reduction under the Compassionate Release Statute, 18 U.S.C. § 3582(c)(1)(A), as Amended by the First Step Act (June 18)

– Thomas L. Root