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

NEW SENTENCING REFORM BILL TWEAKED 

The text of S. 1917, the Sentencing Reform and Corrections Act of 2017, has been released. SRCA17 is not just a rehash of the 2015 bill of the same name, but instead has some different and noteworthy provisions:

Serious drug felony: The federal catch-all drug crime statute – 21 USC 841 – raises the minimum sentence for people convicted of a prior “felony drug offense, “ which is a federal or state drug crime punishable by more than a year in prison. It does not matter if the defendant got probation for the prior offense, or if the prior offense happened 50 years ago.

The result of this draconian provision is pretty clear. If someone who got probation 50 years ago for two pot-dealing felonies (remember Woodstock?), and was caught now with 50 grams of methamphetamine (imagine one-ninth of a pound, the weight of 36 paperclips), under 21 USC 841, he or she would get a mandatory life sentence. Naturally, results like this lead many defendants to take quick pleas and cooperate with the government, because whether to demand the enhanced penalty is solely up to the prosecutor.

SRCA17 would replace “felony drug offense” in 21 USC 841 with “serious drug felony.” A “serious drug felony” is defined as a felony conviction for which the defendant served more than a year in prison, and which happened within the past 15 years. Low-level indiscretions, as measured by the actual instead of the potential sentence and by the age of the conviction, will limit the draconian sentence enhancements under Sec. 841.

Safety Valve: Currently, 18 USC 3553(f) contains what’s known as a “safety valve,” which relieves a drug defendant of an otherwise mandatory-minimum sentence if he or she meets certain criteria, including that there not be more than one prior criminal history point. Of course, a single drunk driving conviction can get you a point, and driving under a license suspension – which follows a DUI in most states like night follows day – will get you a second one.

SRCA17 raises the criminal history point threshold to 4 points, provided there’s no 3-point felony in the mix. At the same time, the “safety valve” would be modified to give a judge discretion to apply it even if the defendant’s points exceed four, if there’s reliable information indicates that the points “substantially over-represent the seriousness of the defendant’s criminal history or the likelihood that the defendant will commit other crimes.”

Drug 10-year Mandatory Minimum: Section 841 specifies that some quantities of drug involved in an offense will require imposition of a 5-year mandatory minimum, and other higher quantities will raise the mandatory minimum to 10 years. For example, in a crack cocaine offense, 28 grams or more requires a minimum 5-year sentence; 280 grams or more will get you at least 10.

SRCA17 would give the judge the discretion in a 10-year case to drop the mandatory minimum to 5 years if the defendant has no drug or violent priors, did not use violence in the crime of conviction, was not a leader or organizer of the offense, and admitted the crime to the government.

Gun crime: Under 18 USC 924(c), a defendant who possesses, uses or carries a gun during a violent or drug trafficking crime must get a mandatory consecutive sentence of at least 5 years. The statute requires that if the defendant does it twice, the second (and all consecutive) offenses require a mandatory sentence of 25 years.

The government, being the government, long ago convinced the courts that the second offense does not require that the defendant have already been convicted of the first one (although that is what Congress meant to say). So if Donny Drugdealer sells me some weed on Monday while carrying a gun in his pocket, and then sells you some weed on Tuesday carrying the same gun, he has committed two drug trafficking offenses (worth, say, 30 months) and two separate 924(c) convictions. His sentence would be 30 months for the drugs plus 60 months for Monday’s gun plus 300 months for Tuesday’s gun. That’s 32 years plus in prison.

Just like SRCA15 would have done, SRCA17 changes 924(c) to require that a defendant be convicted of the first 924(c) offense before the 25 years for a subsequent offense be assessed.

Fair Sentencing Act: Before 2010, Congress believed crack cocaine was so dangerous that it considered one gram of crack to be equal to 100 grams of powder cocaine. In the Fair Sentencing Act of 2010, Congress modified its stance, reducing the disparity to 18:1 from 100:1. The effect was to dramatically cut the mandatory minimum sentences being heaped on (mostly black) crack defendants for drug quantities that paled next to the piles of powder that were earning mostly white defendants much shorter sojourns with the Bureau of Prisons.

But to satisfy reluctant supporters like Sen. Jefferson Beauregard Sessions III – now Attorney General to a President who has denounced him as a moron – the FSA was not made retroactive for people already convicted and sentenced. SRCA17 tries to rectify this.

Retroactivity: SRCA15 originally proposed retroactivity for stacked 924(c) offenses, changed drug mandatory minimums and the FSA people. As the bill progressed through committee and the elections loomed, retroactivity was stripped from the bill a piece at a time to mollify law-and-order people like Sen. Tom Cotton (R-Arkansas) and then presidential-hopeful Ted Cruz. Even that was not enough to save the measure.

SRCA17 proposes a middle-of-the-road retroactivity provision that loosely tracks the reduction-of-sentence procedure under 18 USC 3582(c)(2). Retroactivity would apply to people with sentences enhanced by prior offenses, 924(c) stacked sentences and the FSA, but it would not be automatic.

Instead, the defendant would have to apply for it to the sentencing court, which then would have discretion to grant it. Some people would be outright excluded – for example, defendants who had brandished or fired the gun would be entitled to no 924(c) relief, and defendants convicted of a crime of violence would be denied any retroactive relief for a sentence enhanced by a prior crime. FSA people will not be disqualified because of priors, but in all cases, the trial judge is left with discretion whether to grant a reduction or not.

SRCA17 contains a few enhanced penalties for violent crimes and spouse-beating. Those proposals and the retroactivity provision seem to be an attempt to throw some red meat to the law-and-order lobby. Putting the district judge in the position to decide retroactivity on an individualized basis splits the baby down the middle, granting prisoners a chance to equalize their sentences with those being handed out to new defendants after the bill passes while not releasing prisoners wholesale (and giving the Jefferson Beauregard Sessionses of the world something to gripe about).

Tomorrow: Provisions in SRCA17 for good time credit and reentry assistance. No sex offenders need apply.

S.1917, Sentencing Reform and Corrections Act of 2017 (introduced Oct. 3, 2017)

Text of bill

– Thomas L. Root

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 cleaning up today, posting some case notes we included in the newsletter that went out yesterday.

8TH CIRCUIT SAYS ILLINOIS BURGLARY DOES NOT COUNT FOR ACCA

Eddie Byas was convicted of being a felon in possession of a firearm in violation of 18 USC 922(g). At sentencing, the district court applied the ACCA’s 15-year mandatory minimum sentence on the basis of three prior convictions, one of which was an Illinois residential burglary.

Last week, the 8th Circuit reversed the ACCA sentence, holding that Illinois’s burglar statute was too broad to be used for ACCA purposes. The statute defines a burglary as knowingly entering with authority a building, housetrailer, watercraft, aircraft, motor vehicle, railroad car, or any part thereof” to commit a felony or theft. The defendant and government argued about and Court ruled that it did not have to decide whether the places listed were elements or means. The Circuit said that did not matter, because even if it could use the modified categorical approach, elsewhere in the Illinois Code, “building” has been applied by Illinois courts to a detached semitrailer, a tent, a chicken coop, and a telephone booth.

“Even if Illinois’s burglary statute were divisible,” the 8th said, “its only enumerated location that could fit within generic burglary — a building — is defined to include a broader class of locations” than contemplated by federal law. “‘Building’ is not itself divisible into separate crimes for entry into different types of buildings,” the opinion holds. “Accordingly, a burglary conviction under section 5/19-1(a) may not operate as an ACCA predicate offense.”

United States v. Byas, Case No. 16-3616 (8th Cir., Sept. 28, 2017)

COURT OF APPEALS WILL NOT IGNORE WAIVER EVEN IF DISTRICT COURT DOES

Jim Remington filed a 28 USC 2255 motion challenging his consecutive sentences for two robbery convictions under Johnson v. United States. In his plea agreement, however, signed almost 20 years ago, Jim waived his right to file both a direct appeal and a 2255 motion.

Without asking the government to answer Jim’s 2255, the district court denied it on the merits, but granted him a certificate of appealability. On appeal, the government argued that the waiver precluded the 2255 altogether.

Last week, the 1st Circuit agreed, ruling ruled that “the waiver in the plea agreement, coupled with Remington’s failure to argue in his briefs that it is self-evidently inapplicable, bars Remington from filing the motion.” This is so, the Court ruled, despite the fact that the waiver was not raised as a defense by the government before the district court.

Jim’s mistake, the Circuit said, was that he never even mentioned the waiver until the government brought it up. “A defendant who waives his right to appeal and thereafter attempts to avoid the effect of the waiver must confront the waiver head-on,” the 1st said. “Where the defendant simply ignores the waiver and seeks to argue the appeal as if no waiver ever had been executed, he forfeits any right to contend either that the waiver should not be enforced or that it does not apply.”

Remington v. United States, Case No. 16-2462 (1st Cir., Sept. 27, 2017)

 MAYBE INNOCENCE DOES MATTER

Everyone knows that 28 USC 2255(f) contains some pretty strict 1-year deadlines for filing. But in 2013, the Supreme Court held in McQuiggin v. Perkins that a prisoner making a credible showing of actual innocence can overcome the 1-year statute of limitations in 28 USC 2255. In doing so, the Supreme Court recognized that an untimely petition should not prevent a petitioner who can adequately demonstrate his actual innocence from pursuing his claims.

Despite repeatedly claiming innocence, Paul Satterfield was convicted of state 1st degree murder in 1985. After many years of direct and collateral litigation, won in federal district court on ineffective assistance of counsel. But the 3rd Circuit reversed, holding petition was barred by 1-year statute of limitations.

After the Supreme Court McQuiggin decision, Paul tried again. He moved to set aside the judgment that his habeas corpus was untimely with a Fed.R.Civ.P. 60(b)(6) motion, arguing McQuiggin’s change in relevant decisional law was an extraordinary circumstance justifying relief. The district court denied the motion, holding that McQuiggin was not an extraordinary circumstance.

Last week, the 3rd Circuit vacated the district court’s order. Noting that it had previously held that changes in decisional law may in some cases justify Rule 60(b)(6) relief, the Circuit said “McQuiggin implicates the foundational principle of avoiding the conviction of an innocent man and attempts to prevent such a mistake through the fundamental miscarriage of justice exception.” If Paul can show he would have made a credible showing of actual innocence to avail himself of the fundamental miscarriage of justice exception had McQuiggin been decided when his petition was dismissed, the appellate court said, “equitable analysis would weigh heavily in favor of deeming McQuiggin’s change in law… an exceptional circumstance justifying Rule 60(b)(6) relief.” While the district court must weigh “all of the equitable factors as guided by precedent, we clarify that the nature of the change in law cannot be divorced from that analysis.”

Satterfield v. District Attorney, Philadelphia, Case No. 15-2190 (3rd Cir., Sept. 26, 2017)

– Thomas L. Root

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

HISTORY REPEATS ITSELF AT SCOTUS – AGAIN

In our October 3, 2016, newsletter – an entire year ago minus a dat – we wrote about Lynch v. Dimaya, a case on which the Supreme Court had just granted review. Dimaya was nominally about immigration law, but was expected to address whether Johnson v. United States’ constitutional ban on the “residual clause” might apply to other statutes and guidelines using the same language to define a crime of violence, especially 18 USC 16(b).

Now, a year later, it’s déjà vu all over again. The Supreme Court will open its October Term 2017 (which lasts until the end of next June) with oral argument on the case, now named Sessions v. Dimaya (because Loretta Lynch is gone as Attorney General, replaced by Jefferson Beauregard Sessions III, the only Attorney General in modern history who has been acknowledged to be an idiot by his boss, the President).

The issue in Dimaya is whether, and if so how, the Constitution applies to judicial review of the Immigration and Nationality Act. A noncitizen who is convicted of an “aggravated felony” is subject to mandatory removal. The INA defines “aggravated felonies” to include 18 USC 16(b) crimes of violence, which includes (you guessed it) a “residual clause.”

In 2015, while Dimaya’s appeal was pending, the court held in Johnson v. United States that the Armed Career Criminal Act’s residual clause was so vague as to violate due process. Relying on Johnson, the 9th Circuit found that Sec. 16(b) was unconstitutionally vague and vacated Dimaya’s removal order.

The government contends the Circuit erred in applying the due process clause’s prohibition of vagueness in criminal statutes to a civil immigration law. Dimaya counters that Johnson compels a finding that Sec.16(b) is unconstitutionally vague.

Divisions among the justices emerged in the initial argument of the case. However, no justice seemed interested in holding that removal provisions are subject to due process vagueness standards, and they appeared divided on whether Dimaya is distinguishable from Johnson and thus whether the statute is void for vagueness. Short-handed after Justice Antonin Scalia’s death, the court ordered reargument.

In other Supreme Court news, the Court agreed in last week’s “long conference” to hear five new criminal cases. It has not yet released what is expected to be a very long list of denied petitions for cert resulting from the meeting. The new cases are:

City of Hays, Kansas v. Vogt, where the justices will consider whether the 5th Amendment is violated when a defendant’s non-Mirandized statements are used at a probable cause hearing but not at a criminal trial;

Collins v. Virginia, where the justices will clarify whether the “automobile exception” to the warrant requirement applies to a car parked on private property close to a home;

Byrd v. United States, where the justices will consider expectations of privacy in a rental car for someone who is not an authorized driver;

Rosales-Mireles v. United States, where the justices will consider whether the 5th Amendment has set an impermissibly high standard for the court of appeals to correct a plain error; and

McCoy v. Louisiana, where the justices will decide whether it is unconstitutional for defense counsel to concede a defendant’s guilt over the defendant’s objection.

Sessions v. Dimaya, Case No. 15-1498 (Supreme Court, to be reargued Oct. 2, 2017)

– Thomas L. Root

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

WHERE CERT PETITIONS GO TO DIE

Today the Supreme Court holds its annual end-of-summer “long conference.” The justices will consider the roughly 2,000 petitions for writ of certiorari now pending, asking the court to hear appeals that have piled up over the summer. And they will reject almost all of them.

“The summer list is where petitions go to die,” said Gregory G. Garre, a solicitor general in the George W. Bush administration now at Latham & Watkins. Another practitioner referred to the “long conference” as a “ritualized slaughter – of cert petitions.”

The odds of persuading the Supreme Court to hear a case are always long. At the conferences held on many Fridays during the term, which starts next Monday and lasts until June, the justices consider perhaps 200 petitions at a time and grant about 1.1% of them. At the long conference, the rate is roughly half of that, around 0.6%.

For most petitioners, “the most important moment is trying to get in the door,” according to Jeffrey L. Fisher, a Stanford law professor. “Once you’re in, the statistics say you have a two-thirds chance of winning. So the difference between a grant and a denial is truly the difference… between winning and losing.”

Some practitioners who find their cert deadline falls at a time that guarantees a hearing at the “long conference” will try a strategic use of extension-of-time requests to be able to get their petitions for writ of certiorari to fall later in the year.

But perhaps leavening those long odd is the fact that last term, the Court heard argument in about 70 cases. So far this term, the Court has filled fewer than half of those spots, only agreeing thus far to hear 32 cases. That’s a total of just 28 hours of argument, after accounting for cases that have been consolidated for argument.

The case schedule thus far is skewed toward civil matters. The Court has granted certiorari to 25 civil cases, but only 7 criminal ones. A case that is especially noteworthy to federal prisons, Sessions v. Dimaya (formerly known as Lynch v. Dimaya), was held over for reargument at the end of last term (suggesting a 4-4 split on the Court before the April arrival of Justice Neil Gorsuch).

Argument in Sessions v. Dimaya is set for reargument next Monday, October 2, the first day of the new term.

Bloomberg Law, Supreme Court by the Numbers: Kicking Off the 2017 Term (Sept. 13, 2017)

New York Times, Supreme Court’s End-of-Summer Conference: Where Appeals ‘Go to Die’ (Aug. 31, 2015)

– Thomas L. Root