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Dance With The Girl Who Brung You – Update for April 30, 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.

GOVERNMENT DENIED A MULLIGAN IN § 2255 ARGUMENT

A crusty old judge I once knew liked to warn attorneys they had to “dance with the girl who brung” them. That is, if they made a claim in their opening statement, they had to stick with that claim, and not try to slip in a new theory when the old one started looking weak.

mulligan190430The 4th Circuit told the government the same thing last week. Antwan Winbush filed a post-conviction motion under 28 U.S.C. § 2255 that argued his attorney had been ineffective at his sentencing. Specifically, the court attributed two prior drug convictions to Antwan, making him a “career offender” under the Sentencing Guidelines, and exposing him to a dramatically potential higher sentencing range. Antwan arued his lawyer should have noticed that one of the two priors was inapplicable.

The government admitted Antwan was right about one of the drug prior convictions not counting for “career offender” (because the conduct it addressed was drug possession, not drug trafficking). That did not matter, the government said, because Antwan was not prejudiced. It seems Antwan also had a prior conviction for an Ohio robbery, and that prior offense would have counted to make him a Guidelines “career offender” even without the defective prior drug conviction.

Antwan protested that neither the U.S. Attorney nor the court identified the robbery conviction as a “career offender” qualifier at sentencing. Instead, both relied only on the two prior drug convictions.

The district court said it did not matter which convictions the government brought to the dance back at sentencing, because it was free to watusi with the heretofore-unidentified robbery conviction now. But last week, the 4th Circuit disagreed.

The Circuit, noting that Antwan’s presentence report “did not designate his robbery conviction as a predicate conviction for the career offender designation,” ruled that as a result, Antwan “was given no notice at sentencing that his robbery conviction could be utilized as a predicate conviction for a career offender enhancement.”

uglygirl190430The government “has already been given one full and fair opportunity to offer whatever support for the career offender enhancement it could assemble,” the Court held. Because the government did not identify the robbery as a conviction on which it intended to rely to support a Guidelines “career offender” enhancement at sentencing, it cannot decide to do so later when it finds it convenient, because one of the convictions it did rely on to support the career offender designation ends up not counting.

“To hold otherwise,” the 4th ruled, “would be to allow the government to change its position regarding which convictions support the enhancement now that one of its original choices cannot do the job. Worse yet, allowing the government to change positions for the first time on collateral review would unfairly deprive the defendant of an adequate opportunity to respond to predicate offense designations, especially given the fact that a defendant has the burden of proof at the 2255 stage but no right to counsel.”

You dance with the girl who brung you.

United States v. Winbush, 2019 U.S. App. LEXIS 11853 (4th Cir. Apr. 23, 2019)

– Thomas L. Root

Supreme Court 922(g) Case May Hold Unintended Consequence for Felons with Guns – Update for April 29, 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.

SLEEPER

An oral argument last Tuesday in Rehaif v. United States took a surprising turn, and could make a Supreme Court decision in the case the “sleeper” of the Court’s 2018-2019 term.

gunknot181009Refresher first: Federal law prohibits a long list of people from possessing guns or ammunition. The statute, 18 U.S.C. § 922(g), bans ownership by people charged with felonies, people convicted of felonies, people who have been certified as crazy, people who beat their spouses, people subject to protection orders, people who do drugs, people who are here illegally, and so on and so on.

The statute (922(g)) is colloquially known as the “felon-in-possession” statute, although its reach is much broader than that. Read the statute to figure out where you fit.

A quirk of the felon-in-possession statute is that it provides no punishment. Rather, punishment is meted out by another statute, 18 U.S.C. § 924(a)(2), which specifies a 10-year sentence for people who “knowingly” violate 922(g).

But “knowingly” what? Do you have to know it is a gun? Or a round of ammo? Do you have to know you are a felon or a drug abuser or here illegally? Do you have to know you are possessing it? Up to now, the statute was interpreted by the courts as requiring only that you know that it’s a firearm or ammunition.

Which brings us to the unluckiest hedonist in America, Hamid Rehaif. Hammy came to the US to attend college. Under immigration law, he retained his student-visa status only as long as he remained enrolled as a full-time student. But when he got here, he discovered that the non-classroom parts of college were more fun, the bars, the tailgating, the frat parties, all of the stuff that has conspired to place less of a workload on college students than on eighth graders.

Naturally, Hammy flunked out. But he had so much fun doing it that he couldn’t give it up. Instead of returning to his mother country with his academic tail between his legs, Hammy stayed in America. In Florida, actually, and who could blame him?

florida190429But events conspired against him. One day he went to a shooting range, rented a Glock .40 cal. pistol (is this a great country or what?), and happily blasted away at targets for an hour or so.  A few weeks later, some solid citizen reported Hamid, because she had seen him skulking around an apartment building (he lived there, but then, he is Middle Eastern, so of course he must be a terrorist). The FBI came by to talk to him, and Hammy – who had been at a party instead of an American government class, and thus did not know about the “right to remain silent” part of the Constitution – mentioned at one point in the interview that he had been shooting a few weeks before.

Like I used to tell my clients, remaining silent is not just a  right – it’s a whopping’ good idea. Hamid was charged as an unlawful alien in possession of a firearm under 18 U.S.C. § 922(g)(5). Of course, he was convicted, despite the fact Hammy argued he did not know he was in the country illegally. The trial court said that did not matter. The only “knowledge” provision of 922(g) that mattered was that he knew he possessed a gun, even just for an hour.

knowledge190429The question of whether “knowingly” meant a defendant had to be aware of his or her status (felon, spouse-beater, drug-abuser, illegal-alien, whatever) in order to violate 922(g). At oral argument last week, the Supreme Court justices quickly saw the slippery slope: if they rule that the government must prove an unauthorized immigrant with a firearm knew he was in the country illegally, that ruling will necessarily mean it will have to prove that a felon with a firearm knows he or she is a felon.

If Hamid’s conviction is reversed, the practical consequences could be huge. Only Justice Alito seemed to accept the current view that a defendant need not know his or her status to violate the statute.

Justice Ginsburg wondered what would happen if the Court ruled that status under 922(g) requires knowledge: “How many people who have been convicted under felon-in-possession charges could now say, well, the Supreme Court has said… I can’t be convicted of [the] crime I was convicted of, so I want to get out. I want habeas.” The government’s lawyer responded that “under Bousley v. United States, the defendant would have to show on collateral review that he was actually innocent, meaning he actually did not know about his status.”

It is tricky to predict a Supreme Court case’s outcome from oral argument, but the headcount strongly suggests Hamid will win. If the Supremes’ decision holds that knowledge of felon (or illegal immigrant) status is an element of a 922(g) offense, a flood of actual-innocence 28 U.S.C. § 2241 habeas corpus petitions is sure to follow. That would make Rehaif the “sleeper” decision of the year.

Rehaif v. United States, Case No. 17-9560 (Supreme Court, decision by June 30, 2019)

SCOTUSBlog.com, Argument analysis: Court leaning toward requiring the government to prove that a felon in possession knew he was a felon (Apr. 24)

– Thomas L. Root

Whose Number Counts for Fair Sentencing Act Resentencings? – Update for April 25, 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 GAME’S AFOOT

The 900-lb. gorilla900-pound-gorilla190425 in the room at most Fair Sentencing Act resentencings under the First Step Act is this: before the United States v. Booker Supreme Court decision, the government typically did not bother to specify an amount of crack the defendant was accused of distributing. It did not bother, because the jury would find him or her guilty of some quantity (however small), and then the government would get the defendant tagged in the presentence report with 1.5 kilos of the stuff.

The quantity would result in the defendant getting hammered, not just with a mandatory minimum of 10 years (usually enhanced into the stratosphere by prior convictions noticed under 21 U.S.C. § 851), but usually with sky-high sentences as well.

The legal landscape is much different now. Booker and Alleyne have held that not only must the Sentencing Guidelines be advisory, but any amount raising the mandatory minimum must be found by a jury beyond a reasonable doubt.

Many of the Defendants going back for FSA resentencing had indictments that did not specify any minimum amount, or just a small amount that is no longer relevant. Thus the jury never found that they had possessed any significant amount. But their Presentence Reports – written by Probation Officers and often untethered to reality – may claim they had more crack than you could move with a truck. So at an FSA resentencing, does the district court go with what the jury found (which is constitutionally required) or by what was found in the PSR (on which the Court could legally rely on then, but not now)?Comparativecrack190425

The government claimed that Emerson Davis should not get a retroactive FSA sentence reduction, because while the jury only found that he was responsible for 50 grams or more of crack, the PSR said he had moved over 1.5 kg. It did not matter that sticking him with 1.5 kg-plus violates his due process rights, the government argued, because it was all right to do when he was sentenced back in 1995.

The district court was unimpressed with the government’s argument, and two months ago it cut Emerson’s sentence to time served.

Two weeks ago, the government appealed the sentence reduction to the 11th Circuit. This was undoubtedly a calculated decision made by the Solicitor General in Washington, D.C., based on the belief that the 11th Circuit is likely to be the friendliest circuit to the government anywhere in the country on this issue.

An adverse decision could be ugly. No briefs have been filed yet.

United States v. Davis, Case No. 19-11311 (11th Cir. Filed Apr. 2, 2019)

– Thomas L. Root

ACLU Questions Implementation of First Step – Update for April 24, 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.

ADVOCACY GROUPS BLAST DOJ/BOP FIRST STEP ACT PLANNING AND IMPLEMENTATION

An Apr. 12 letter to the Dept. of Justice from the American Civil Liberties Union, writing on behalf of 10 other advocacy groups, blasted DOJ’s selection of the Hudson Institute as host of the Independent Review Committee, which is tasked with developing the First Step Act’s risk assessment system.

risk160627The IRC is to propose a risk assessment system for use in the enabling the Bureau of Prison’s programming to reduce recidivism, for which inmates will receive extra good time that can be used to cut sentences and award additional halfway house or home confinement. The First Step Act requires that the risk assessment system be in place by July 19, but DOJ is already two months behind.

The ACLU letter complained that while the Act required that a non-partisan non-profit host organization with expertise in the study and development of risk and needs assessment tools be picked, “the Hudson Institute is… a politically conservative think tank, whose research and analysis promotes global security, freedom and prosperity…” and “there is no evidence on its website, in the form of research publications or otherwise, which remotely suggests the organization has any expertise or experience in the study and development of risk and needs assessment systems.”

The letter also warned that neither the current BOP security classification system nor the U.S. Probation Office post-conviction risk assessment protocol should be adopted as a substitute for the Act’s risk assessment system, because neither was “designed to identify specific criminogenic needs and heavily relies on static factors that classify many people who do not go on to reoffend as high risk.”

Not the right halfway house - but you could get drunk here, which is what it may take to believe that BOP will implement FIRST STEP's transitional housing mandates.
Not the right halfway house – but you could get drunk here, which is what it may take to believe that BOP will implement FIRST STEP’s transitional housing mandates.

Finally, the letter noted that since 2017, BOP has made substantial cuts in rehabilitative programming, staff, and halfway houses. “There are 25,000 people in federal prison waiting to be placed in prison work programs, at least 15,000 people waiting for education and vocational training, and at least 5,000 people are awaiting drug abuse treatment,” the letter said. “There is nowhere near enough programming to help prisoners succeed in their communities upon release and thereby reduce recidivism overall. We therefore urge BOP to begin rebuilding rehabilitative services now.”

ACLU, Letter to David B. Muhlhausen (Apr. 12)

– Thomas L. Root

Spoiler Alert: There’s No Easter Bunny (Especially an Armed One) – Update for April 23, 2019

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AIN’T NO EASTER BUNNY… AND NO DEFENSE TO FELON-IN-POSSESSION, EITHER

manyguns190423Something that just about all readers of this newsletter (at least, those who have it delivered through the Bureau of Prisons’ email system) have in common is that the current state of the law prohibits them from possessing a firearm or any ammunition. The felon-in-possession statute, 18 USC 922(g)(1), is easier to violate than you’d think. An old, broken shotgun missing its firing pin in a pile of attic junk, a single empty shell casing kept as a souvenir: either is enough to buy you a few more years in federal prison. Read the definitions in 18 USC 921 if you doubt it.

Bernard Cherry was lit up on booze when a police officer found him on his hands and knees in the grass with a flashlight, looking for his keys. The friendly cop helped Bert search until he found a .40 cal. Glock in the grass not far from the hapless drunk. Bernie said someone had tried to rob him, and he had knocked the gun out of the assailant’s hands before the man fled. Bernie had then picked up the Glock, but threw it down when the police officer pulled up.

Bernie had a record, and so was charged with being a felon-in-possession. At trial, he asked for an “innocent possession” instruction, that he was not guilty of being in possession if he obtained the gun innocently and held it with no illicit purpose; and if possession of the gun was only momentary. The district court turned him down, and Bernie was convicted.

bunnygun190423Last week, the 7th Circuit agreed, holding that – like the Easter Bunny – there ain’t no “innocent possession” defense. There may be “necessity” and “duress” defenses to felon-in-possession, where defendants can justify their momentary possession of a gun (you see a 6-year old waving a loaded pistol, and grab it for the child’s safety, for example). But the Circuit has never recognized the kind of defense Bernie proposed.

Besides, the Court pointed out, Bernie threw the gun away. “Even though he was in the presence of law enforcement,” the 7th said, “there is no evidence that he took any action, much less immediate action, to turn over the firearm.”

United States v. Cherry, 2019 U.S. App. LEXIS 11219 (7th Cir. Apr. 17, 2019)

– Thomas L. Root

Davis Has Its Day At Supreme Court – Update for April 22, 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.

IS THE LAST JOHNSON DOMINO ABOUT TO FALL?

A few months ago, the 4th Circuit Simms decision described the residual clause in 18 USC § 924(c) as “the last Johnson domino to fall.” Last Wednesday, the Supreme Court heard argument on that domino in United States v. Davis.

domino190422The Supreme Court’s 2015 Johnson v. United States decision invalidated the Armed Career Criminal Act residual clause as unconstitutionally vague. The next domino after Johnson was 18 USC § 16(b), the criminal code’s general definition of “crime of violence,” which the court invalidated in Sessions v. Dimaya, and which had great significance for immigration.

Davis brings Johnson to § 924(c). Sec. 924(c)(3)(B) defines a crime of violence as “an 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.” Those are the same words Dimaya invalidated in § 16(b). Both provisions have been interpreted using the “categorical approach,” in which courts identify a crime’s “ordinary case” and then assess whether the ordinary case crime poses a substantial risk of force. In Johnson and Dimaya, the court concluded that the categorical approach made the provisions too vague.

In Davis, the government wants the Court to solve that problem by abandoning the categorical approach in favor of looking at the facts of the defendant’s particular case to determine whether the crime was violent. This, the government claims, would save 924(c)’s residual clause. Two circuits – the 1st and 11th – have already agreed.

The government, with its gift for understatement, argued in its brief, “As the facts of this case illustrate, defendants whose prosecution requires application of [this law] include some of the most violent criminals on the federal docket.” 

violent160620At Wednesday’s argument, the justices pushed the government for a reason why they should abandon the categorical approach, wanting to know why 924(c) is better interpreted on the specific facts of a particular case instead of the “ordinary case.” Justice Neil Gorsuch asked the government how it could interpret the word “offense” in the introductory clause of 924(c)(3) to mean the ordinary case of an offense while interpreting the same word to mean “specific facts of a case” in § 924(c)(3)(B). Gorsuch called that “a problem,” telling the government attorney “I’m not tracking you at all.”

One observer suggested, “It seemed possible that Gorsuch would dictate the outcome of Wednesday’s case, with a series of questions suggesting skepticism, if not outright dismissiveness, of the government’s position.”

Chief Justice John Roberts said the government’s warnings that the “specific case” approach is needed to avoid visions of violent criminals running amok are self-defeating. Such predictions, he suggested, stack the deck against the government in future cases.

“The government in all of these cases keeps upping the ante, even though they continue to lose hands,” Roberts said. “I would have thought you’d be more interested in saying that there are plausible distinctions in these other cases so that you don’t automatically stack the odds against you when that next case comes up.”

vagueness160110A SCOTUSBlog analysis, reported that after the government argued, it seemed that up to five justices were already inclined to rule for Davis. His counsel did not appear to lose any votes during his argument, either, although Gorsuch at one point noted that the rule of constitutional avoidance (under which courts try to interpret statutes to avoid finding them unconstitutional) favors the government, while the rule of lenity (under which courts interpret ambiguity in criminal statutes in favor of the defendant) favors Davis. Gorsuch wondered how those two rules should be reconciled when they clash.

By the end of the argument, SCOTUSBlog recounted, “it was clear that at least three justices, and quite possibly five, are not inclined to abandon the categorical approach in order to save Section 924(c). The only question seems to be whether Breyer will join them, or whether Gorsuch will find a reason to apply the canon of constitutional avoidance (assuming the text is sufficiently ambiguous) instead of the rule of lenity.”

The case will be decided by the end of June.

United States v. Davis, Case No. 18-431 (Supreme Court)

SCOTUSBlog.com, Argument Analysis, “The Last Johnson Domino to Fall?” (Apr. 17, 2019)

Daily Caller, A law used to punish gun crimes is under attack at the Supreme Court (Apr. 17, 2019) 

– Thomas L. Root

Brilliant! Pell Experiment to be Studied to See Whether It Worked – Update for April 18, 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.

IS DEPT. OF EDUCTION SMARTER THAN A FIFTH GRADER? EFFECTIVENESS OF PELL GRANT EXPERIMENT FINALLY WILL BE STUDIED

Since 2015, the federal Dept. of Education has been experimenting with returning Pell grant assistance to inmates, giving grants to about 8,800 prisoners have been funded to take college-level courses inside their correctional institutions.

But no one knows whether the program has been effective. Back in 5th grade, we learned the scientific method. Integral to that method was evaluating the experimental testing, and refining or eliminating hypotheses as a result of the evaluation.

smarterthan5th190418

So let’s try this, kiddies. Our hypothesis is that providing prisoners with access to college-level course in prison will reduce recidivism. So four years ago, we experimented by giving 8,800 inmates Pell grants so that they could take college course while locked up. So what was the result? Was our hypothesis supported by the experimental results or not?

No one knows, because no one at DOE ever looked at the experimental results. When the agency was finally called out on it last week by the Government Accountability Office,  DOE unabashedly announced plans to conduct a “rigorous” examination of the program (after earlier saying it could not afford to do so.) The study is to “help provide policymakers with the information needed to make decisions about the future of Pell grants for incarcerated students,” wrote Gretta L. Goodwin, director of the Homeland Security and Justice division at GAO.

second170119Pell grants were made available 55 years ago to help low-income Americans benefit from higher education. The grants were denied to inmates after passage of the Violent Crime Control and Enforcement Act in 1994. But policymakers, faced with mounting evidence that education is critical to prisoner rehabilitation, approved the “Second Chance Pell” pilot program in a cautious attempt to rehabilitate the concept.

Advocates hoped the study will spark a bipartisan consensus about the need to return Pell grants in order to reduce mass incarceration.

The Crime Report, Does College Education in Prison Work? Ask the 8,800 Inmates Who Got Pell Grants (Apr. 11)

– Thomas L. Root

Buyer’s Remorse Wins Confused Defendant a Hearing – Update for April 17, 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.

8TH CIRCUIT FLESHES OUT STANDARD FOR CHANGE-OF-PLEA INEFFECTIVENESS

One of the most-argued issues in post-conviction motions under 28 USC § 2255 is that defense counsel was ineffective. Unsurprisingly, because 94% or so of all federal criminal cases are resolved with a plea agreement and guilty plea, the most popular claim is “buyer’s remorse,” that is, that the defendant would have never pled guilty if his or her lawyer had only properly advised the accused prior to entering into the plea agreement.

buyersremorse190417I have some sympathy for the claim, but not for the obvious reason. Defense attorneys usually are right that the defendant should take a plea, and almost always, they have gotten their client the best deal possible from a chary United States Attorney. The real problems are two-fold: first, the U.S. Attorney has a script used on plea deals, and the script allows for very little negotiating room by the defendant (who, anyway, is totally outgunned by the government’s thundering herd of lawyers, legal assistants, case agents and factotums). Second, the defendant is almost always unschooled in the finer points of federal criminal law and procedure, and is under extraordinary stress as he or she bargains away in freedom, reputation and property to a rapacious and unblinking adversary. That makes misunderstanding and confusion almost inevitable.

By the time the defendant is in front of the judge for a Rule 11 guilty-plea hearing, he or she is committed to the plea deal, and is almost incapable of answering the many questions asked by the judge in any manner other than what the question anticipates and the judge expects.

It’s no wonder that a 2255 movant’s recall of the advice that counsel provided and the answers given at the Rule 11 hearing ends up being warped: it probably seems to the defendant that a different person altogether signed the plea agreement and stood up at the plea hearing.

notlistening190417But arguing that counsel poorly advised a defendant to take a plea and how to respond to the judge at a plea hearing has always been tough. Everyone knows that a defendant listens to his or her lawyer, especially when counsel is the closest thing to a friend a defendant can find in the courtroom. Besides, no one really listens to the judge at the change-of-plea hearing. Yet the defendant’s rote answers to the judge at the guilty plea hearing are invariably used by the court to bludgeon any defendant who later argues about attorney misadvice in a 2255 motion.

On top of that, a defendant has to show that if counsel had advised him or her properly, he or she would have gone to trial. For years, the courts required that the defendant show that going to trial would have been reasonable, regardless of what a defendant may have really intended.

Things improved slightly several years ago with the Supreme decision in Lee v. United States. There, a Korean restaurant owner argued that if his lawyer had told him that deportation was certain, he would have gone to trial even though he was bound to lose. The lower courts denied his 2255 on the grounds that no reasonable person would have changed his mind on the plea, because Lee had no chance of winning. The Supreme Court, however, held that courts could “look to contemporaneous evidence to substantiate a defendant’s expressed preferences,” even where those preferences were objectively unreasonable.

Dilang Dat pled guilty to robbery, but only after rejecting plea agreements that said he would be deported. The agreement he finally signed said “there are or may be collateral consequences to any conviction to include but not limited to immigration.” He agreed to plead based on counsel’s assurance his immigration status would be unaffected. Alas, counsel was terribly wrong, something Dilang learned after his conviction, when his mother’s attempt to renew his green card was denied.

The district court denied Dilang’s 2255 without a hearing, finding that he was warned in his plea agreement there could be immigration consequences. That printed warning was enough, the judge said, to undo his lawyer’s bad advice.

badadvice170201Last week, the 8th Circuit reversed. It observed that Dilang’s background supported his assertion that he was focused on remaining in the country. At the change-of-plea hearing, counsel noted Dilang’s request for prison placement close to his family, and observed that he had no ties to another country. Although Dilang faced around five more years in prison from a conviction on all counts at trial (if two counts had not been dismissed as part of the plea agreement), “deportation is a particularly severe penalty,” the Circuit opined, “which may be of greater concern to a convicted alien than any potential jail sentence.”

Nor did the language in the plea agreement undermine Dilang’s claim. The language said only that he could face deportation, not that he would do so. “A general and equivocal admonishment that defendant’s plea could lead to deportation,” the 8th said, “was insufficient to correct counsel’s affirmative misadvice that [defendant’s] crime was not categorically a deportable offense.”

The Court of Appeals sent the 2255 motion back to the district court for an evidentiary hearing.

Dat v. United States, 2019 U.S. App. LEXIS 10732 (8th Cir. Apr. 11, 2019)

– Thomas L. Root

Texas Robbery Is Kinder and Gentler No Longer – Update for April 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.

5TH CIRCUIT FLIPS, DEFENDANT WINNER IS NOW A LOSER

Last June, we reported that the 5th Circuit had ruled that a conviction for Texas robbery is not a crime of violence under the Armed Career Criminal Act.

Latroy Burris, who was convicted of being a felon-in-possession of a gun under 18 USC § 922(g)(1), was sentenced under the ACCA due to prior convictions for Texas robbery and Texas aggravated robbery. (The ACCA provides that a defendant with three prior convictions for crimes of violence or serious drug offenses must receive a sentence of 15 years to life instead of 922(g)’s usual zero-to-ten years.) Last year, Latroy argued that Texas robbery under § 29.02(a) of the Texas Penal Code was not a crime of violence, and the 5th Circuit agreed.

Afterwards, the government moved for rehearing en banc, and the Court withdrew its Burris decision pending the en banc court’s decision in United States v. Reyes-Contreras, and the Supreme Court decision in Stokeling v. United States, which held that Florida robbery qualified as a crime of violence under the ACCA.crimeofviolence190416

The 5th has now held that Sec 29.02(a)(1) is a crime of violence. It requires that a defendant “cause bodily injury.” Whether “caus[ing] bodily injury” requires the use of physical force under federal law “involves two issues,” the Court said, “(1) the relationship between causing bodily injury and the use of physical force and (2) the degree of force necessary to qualify as a violent felony under the ACCA’s elements clause. The en banc court resolved the first issue in Reyes-Contreras, and the Supreme Court resolved the second issue in Stokeling.”

The Court also concluded that Sec. 29.02(a)(2), which outlaws “robbery-by-threat,” has as an element the attempted or threatened use of physical force. That subsection criminalizes “intentionally or knowingly threaten[ing] or plac[ing] another in fear of imminent bodily injury or death.” The Court said that because Sec. 29.02(a)(1), robbery-by-injury, requires the use of physical force, it necessarily followed that 29.02(a)(2), “threatening to cause imminent bodily injury,” also requires the “attempted use, or threatened use of physical force.”

Latroy Burris’ ACCA sentence was upheld.

United States v. Burris, 2019 U.S.App.LEXIS 10606 (5th Cir. Apr. 10, 2019)

– Thomas L. Root

Justice Dept. Picks First Step Foe to Spearhead Recidivism Risk Standard Adoption – Update for April 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.

HAS DOJ SENT THE FOX TO GUARD THE HENHOUSE?

As we observed last Tuesday, the Dept. of Justice has announced that it had appointed the Hudson Institute, a right-of-center think tank best known for its national security work, to design a risk-assessment tool that must be in place before prisoners can receive earned-time credit for completing BOP programs designed to reduce recidivism.

bog190312

The appointment, required by the First Step Act to be in place by Jan. 21, was only 78 days late.

First Step requires that a prisoner’s risk of recidivism (different from security and custody levels) be assessed before he or she starts programming. The risk can go up or down, depending on the inmate’s progress. The lower a prisoner’s risk, the more credit that can be earned.

However, the Act does not specify how a person’s recidivism risk level should be calculated. Instead, it instructs the attorney general to consult with an “independent review committee” to design the system.

DOJ said that Hudson Institute will host the independent review committee. Hudson has the discretion to appoint committee members, who will work to advise on the shape of the final risk-adjustment tool.

henhouse180307Some lawmakers from both parties who backed First Step Act expressed concern late last week at Hudson’s appointment. “I’m a little bit worried that we just let a fox in the chicken coop here,” Sen. Richard Durbin (D-Illinois) said during a confirmation hearing last week. “This… think tank… published an article entitled, ‘Why Trump Should Oppose Criminal-Justice Reform…’ [and has] now been chosen by the Department of Justice and Trump administration to be part of this so-called independent review system.”

Sen. Mike Lee (R-Utah) described the institute as an “opponent of the First Step Act… I don’t see a lot of good faith in implementing this law right now,” Lee said. “And it’s become increasingly clear to me in the last few days that some Department of Justice officials at least don’t like the First Step Act, and they seem not to care that Congress passed this law and that President Trump signed this into law.”

The Hudson Institute, founded in 1961, is known for its work on national security and foreign policy, though it also focuses on economics and domestic policy. For the First Step Act, it has announced six committee members so far who will develop the risk assessment program, one of whom is Hudson’s chief operating officer, John Walters.

Walters once wrote that it was a “great urban myth” that the country was imprisoning too many people for drug possession and that the 100:1 crack-to-powder cocaine disparity was merely a “perceived,” not a real, racial injustice. In 2015, Walters wrote that the concept of “mass incarceration” was a myth, and that “the great majority of federal prisoners appear to be incarcerated because they were, properly, adjudged guilty and justly sentenced.”

release160523The New York Times reported last Tuesday that First Step’s retroactive application of the 2010 Fair Sentencing Act has already “prompt[ed] 800 sentencing reductions already, according to the Justice Department. Of that group, nearly 650 inmates have been released from prison. Another 22 inmates have received sentencing reductions under a compassionate release program that is part of the law.” It reported last Saturday that since First Step was passed, 10 prisoners of 23 that have so far been deemed eligible have been released under the First Step’s Elderly Offender Home Detention (EOHD) program.

Testifying last Tuesday before the Appropriations Subcommittee of the House Committee on Commerce, Justice, Science, and Related Agencies, Attorney General William Barr promised “to robustly fund and diligently implement [First Step] at the Department.”

If you want to know where the real headwinds to First Step will come from, look no further that last Saturday’s Times. It’s one thing to support criminal justice reform in the abstract. But when it comes to individuals, the Gray Lady makes it clear that her anti-felon “lock-’em-up” biases are every bit as finely honed as Sen. Tom Cotton’s ever were.

unforgivenfelon190415The newspaper breathlessly reported on one inmate released under EOHD: “The First Step Act offered prisoner rehabilitation programs and overhauled sentencing policies that supporters claimed had a disproportionate effect on poor defendants, especially minorities. But one person who benefited from the law was Hassan Nemazee, who was once an investor of enormous wealth and who donated heavily to Democratic political causes.” The Times reported that “Mr. Nemazee was charged in 2009 with orchestrating a scheme that defrauded banks of nearly $300 million,” and it complained that home detention “feels a lot like freedom.”

Once the media start picking at the offenses for which inmates who benefit from First Step were convicted, public outrage will not be far behind.

Washington Free Beacon, “DOJ Taps Conservative Think Tank to Help Implement FIRST STEP Act” (Apr. 8)

Mother Jones, Trump Keeps Celebrating Prison Reform. His Administration’s Latest Move Could Sabotage It (Apr. 11)

New York Times, Justice Dept. Works on Applying Sentencing Law as Critics Point to Delays (Apr. 8)

New York Times, He Committed a $300 Million Fraud, but Left Prison Under Trump’s Justice Overhaul (Apr. 13)

– Thomas L. Root