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BOP Staff Releases Prisoners According To The Law, Gets Threatened With Contempt – Update for March 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.

JUDGE CANNOT JAIL BOP EMPLOYEES FOR FOLLOWING THE LAW


manbitesdog190318Lawsuits by inmates asking federal courts to order the Bureau of Prisons to follow the law are too numerous to mention, and amount to little more that what journalists call “dog-bites-man” stories.

This report, however, is completely inverted, a “man-bites-dog” account in which a federal judge wanted to jail BOP employees for ignoring her demands that they substitute her diktats for the law.

Under 18 USC § 3585, only the BOP is authorized to calculate jail time, credit for the time an inmate spent in detention before sentencing. Ruben Hernandez on three years of supervised release (SR) when he was charged in state court for gun and drug offenses. He spent over a year in pretrial detention on the state charges before he beat them.

After he beat the state case, Ruben was grabbed by the feds on an SR violation. Judge Alia Moses in the Western District of Texas revoked Ruben’s SR, sentencing him to 10 months in prison. Ruben requested credit for time served in state custody, but Judge Moses refused, ordering in his judgment that he only get credit from the time the feds picked him up.

The BOP’s Grand Prairie Designation and Sentence Computation Center (DSCC) BOP determined that Ruben was really entitled to credit for all of the 543 days he spent in detention following his state arrest. That amounted to much more than 10 months, so Ruben was released right away.

aliamoses190318Judge Moses learned what had happened, and demanded the name of someone at DSCC on whom to serve a contempt order. She got two BOP employees’ names (I will call them Smith and Jones), and hailed them into court. By then, the Judge had identified two other defendants she had sentenced who had gotten jail credit to which she did not think they were entitled.

Smith and Jones explained to the court that the BOP e required by statute to award credit for time served in official detention when that time has not been credited to another sentence. While a district court has the authority to order a consecutive sentence, the BOP cannot run the federal sentence consecutively if there is no other sentence in place. Ruben had no state sentence, and therefore, the statute required he get the full jail credit, no matter what the Judge wanted.

The Judge was unfazed. She ordered the BOP not to award credit under 18 USC § 3585(b)(2) for time served in state detention when she told it not to. The Court said the order would apply “in my cases only,” not nationwide, “and anybody that violates that injunction will then be facing a personal, individual contempt situation.” In other words, the Judge told Smith and Jones that if it happened again, she would lock them up.

Last week, the 5th Circuit overturned the contempt proceeding. In what amounted to a rebuke of the District Court, the 5th ruled that the district court lacked the authority to award or deny jail credit, and that the BOP is not bound by a district court attempt to do otherwise. If the court determines that the BOP will not credit a defendant’s prior time served, the court can reduce the defendant’s sentence under the Guidelines to account for it. But the district court cannot simply order the BOP to award credit, and it cannot order the BOP to deny credit where the law orders otherwise.

cantdothat190318

“Given the district court’s lack of authority over credit awards,” the Circuit said, “it was improper to order the BOP to deny custody credits required by statute. The district court’s error was compounded by its threat to hold BOP officials in individual contempt for fulfilling their statutory duties.”

Meanwhile, in the 7th Circuit, Maurice Walker was charged with a felon-in-possession count. While locked up awaiting trial, he tried to intimidate some witnesses into not testifying. When his indictment was superseded to charge him with that, too, he folded and entered a guilty plea.

At sentencing, the district court, angry about the witness tampering, ordered that Maurice not get any jail credit for the time he spent prior to entering his guilty plea. On appeal, Maurice argued that the judgment was wrong, because he was entitled to the full jail credit time under 18 USC § 3585(b).

The 7th Circuit rejected Maurice’s argument. It held that Congress has committed the responsibility for figuring credit for pretrial confinement to the BOP. “The district court therefore lacked the authority to make such a determination,” the Court said, but that did not mean the court could not “make a recommendation to the BOP as to whether pretrial credit is appropriate. The district court therefore acted well within its discretion when it made such a recommendation.”

In re United States Bureau of Prisons, 2019 U.S. App. LEXIS 7560 (5th Cir. Mar. 14, 2019)

United States v. Walker, 2019 U.S. App. LEXIS 7060 (7th Cir. Mar. 11, 2019)

– Thomas L. Root

First Step, Next Step… Washington Follies – Update for March 13, 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.

SENATOR BOOKER INTRODUCES DOA ‘NEXT STEP” ACT

doa190313Sen. Cory Booker (D-New Jersey) last week announced he is introducing a criminal justice reform measure he calls the Next Step Act. The bill, which pretty much is dead on arrival, would

• reduce nonviolent drug offenses mandatory minimums under 21 USC 841(b)(1), with the 20-year minimum falling to 10 years, the 10-year mandatory minimum to 5 years, and the 5-year mandatory minimum to 2 years;

• Eliminate the 18:1 disparity between crack and powder cocaine;

• End the federal prohibition on marijuana; and

• Remove barriers for people with criminal convictions to receiving an occupational license for jobs, such as hair dressers and taxi drivers.

Sen. Booker said, “The Next Step Act is an effort to build upon the momentum of the First Step Act, which was signed into law late last year and which represents the biggest overhaul to the criminal justice system in a decade.”

Ohio State law professor Doug Berman observed in his Sentencing Law and Policy blog, “I would be quite excited by a number of the substantive provisions in this bill if it had any chance of moving forward in any form. But, for a host of political and practical reasons, this bill really serves more as Senator Booker’s statement of aspirations rather than as a serious attempt to get something specific passed by Congress in the coming months.”

Translation: The Next Step Act is never going to see a vote, much less be passed.

That leaves the First Step Act, which may not have quite the “momentum” Sen. Booker said it does. However, last week newly-confirmed Attorney General William P. Barr promised a full-throated implementation of First Step despite his prior opposition to the bill. “I am committed to implementing the First Step Act,” he told the National Association of Attorneys General.

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Good thing, too, because he has a lot to do. As #cut50 director Jessica Jackson noted last week in The Hill, because of the government shutdown and lack of an Attorney General, the first deadline laid out in First Step passed without action almost two months ago. By Jan. 21, the Dept. of Justice was supposed to have formed a committee to work with the BOP to create the risk assessment system needed before the BOP can offer earned time credits for program completion. The Review Committee, which First Step directs to adopt the risk system by July 19, has not yet been formed.

Jackson called on the AG to nominate a permanent director of the BOP and “establish a credible and committed leader to steer the Bureau into a better future… With a new leader at the helm, the BOP must be transparent and accountable to Congress. The department will need to work closely with the Office of Inspector General and the Government Accountability Office to implement and report on the multitude of provisions laid out in the First Step Act.”

Press release, Booker, Watson Coleman Introduce Far-Reaching Criminal Justice Legislation: The Next Step Act

Washington Times, Attorney General William Barr reaffirms commitment to criminal justice reform (Mar. 4)

The Hill, 3 more steps to make ‘First Step Act’ work (Mar. 7)

Sentencing Law and Policy, Senator (and Prez candidate) Cory Booker introduces “Next Step Act of 2019” with wide array of sentencing and criminal justice reforms (Mar. 8)

– Thomas L. Root

You Leave When I Say You Can Leave – Update for March 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.

WHO SAID YOU COULD GO HOME?

Winning immediate release doesn’t necessarily get you anywhere. That was Darren Golson’s experience a week or so ago.

noleave190312His judge granted Darren’s retroactive Fair Sentencing Act motion and ordered his release on Feb. 25. But when he showed the halfway house the judge’s order, it called some unnamed Bureau of Prisons employee, who ordered them to refuse to let Darren leave.

Darren whipped up a quick emergency motion, essentially asking his judge to figuratively plant his size 12 in the halfway house’s butt. The irate judge got on the phone, asking the halfway house who there would accept service of the “show cause” order the court was fixing to issue.

The answer was that no one wanted to see such an order. The halfway house hustled Darren out the door at 3:57 pm on the 27th, only two days late.

Motion, US v Golson, Case No. 2:01-cr-47 (E.D.Va. Feb. 27, 2019)
Order, US v Golson, Case No. 2:01-cr-47 (E.D.Va. Feb. 28, 2019)

– Thomas L. Root

FSA Resentencings Reflect District Court Confusion – Update for March 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.

FAIR SENTENCING ACT RESENTENCINGS ALL OVER THE MAP

As prisoners who were sentenced for crack offenses before the August 2010 effectiveness of the Fair Sentencing Act (FSA) are discovering, district courts are all over the map in interpreting the First Step Act provisions that make the FSA retroactive.

crackpowder160606Here’s one problem: A number of prisoners seeking retroactive FSA application were sentenced under the mandatory pre-United States v. Booker guidelines. Are their guidelines still mandatory on resentencing?

And another: Virtually all of the eligible defendants have indictments that specified “5 grams or more” or “50 grams or more” of crack – the standard for mandatory minimums before FSA – but had judges finding at sentencing that the amount of crack in their cases was much higher, such as “400 grams or more.” Before the Supreme Court’s 2013 Alleyne v, United States decision, a Presentence Report finding of 400 grams would subject the defendant to a 10-to-life sentence no matter what the indictment said. Alleyne said that the facts supporting a mandatory minimum sentence had to be found by a jury beyond a reasonable doubt or admitted by the defendant. So what amount of crack should drive their new sentence, 50 or 400?

The issue district courts are grappling with is whether an FSA resentencing has to pretend that Booker and Alleyne were never decided, or whether a new FSA sentence has to be constitutional under all of those decisions handed down since the defendant was first sentenced.

Three district court decisions in the last week or so make it clear that those questions are still up in the air. In United States v. Glore, the government argued that because a defendant who was charged with 5 grams or more had been found in his PSR to have had 46 grams, he was not eligible for a sentence reduction under the retroactive FSA, because the 46 grams still required a 5-year minimum sentence under the FSA’s 28-gram threshold. The government said Alleyne should not apply, because it was decided well after the original sentence was imposed.

badjudge160502Citing United States v. Fleurival, the district court rejected the government argument, holding that “the government has the prerogative to argue that even if a defendant is eligible for a First Step reduction, the court should decline to exercise the broad discretion given it by the First Step Act, and refuse to reduce a defendant’s sentence. But its argument that a defendant is not eligible because the sentencing court might have elected to calculate his statutory penalties in a way that now is unlawful, and back then would have been illogical, is unpersuasive.”

Meanwhile, in United States v. Newton, a Virginia district court ruled that although the defendant was originally sentenced under pre-Booker mandatory guidelines, his new sentence under the retroactive FSA should be decided under advisory guidelines and the sentencing factors in 18 USC 3553(a). The government, comparing the FSA resentencing to an 18 USC 3582(c)(2) sentence reduction, argued that Dillon v. United States made it a limited resentencing, and the court had to pretend that the law on the day of the original sentencing remained the law at resentencing.

The district court rejected this argument, noting that the Sentencing Commission said in January that while courts would have to settle whether the FSA resentencing was subject to Dillon, district judges should nevertheless “consider the guidelines and policy statements, along with other 3553(a) factors, during the resentencing.”

In a New York case last week, United States v. Davis, the government argued the defendant was not eligible for relief under the First Step Act because his actual offense conduct involved over 1.5 kilos of crack, which even under the FSA would trigger a 10-life sentence under 21 USC 841(b)(1)(A). The government hypothesized that if the current FSA had been in place when Mr. Davis committed his crime, his indictment would have alleged “280 grams or more of cocaine base” instead of “50 grams or more,” and thus still would have triggered the higher  841(b)(1)(A) penalties.

release160523The court rejected the government’s argument out of hand, holding that “it is the statute of conviction, not actual conduct, that controls eligibility under the First Step Act.” The defendant won his release.

But the foregoing views are not universally shared. Last week, a Florida district court held in United States v. Potts that a defendant who had been charged only with a “detectable amount” of crack, which carried no mandatory minimum, was nevertheless subject to a 10-year minimum sentence because his presentence report found he was responsible for 125 grams. The district court concluded that First Step’s provision making the FSA retroactive does not “expressly provide for a full or plenary resentencing or for a reconsideration of original sentencing determinations.” Instead, “although Defendant is eligible for a reduced sentence under Fair Sentencing Act, he is not entitled to a full resentencing, and all other determinations made at the time of his sentencing must remain unchanged.” The court cited United States v. Delaney and United States v. Kamber, but neither of those decisions hold that an FSA resentencing is limited like a 3582(c)(2) resentencing.

There is going to be a lot of litigation before the parameters of the FSA resentencing are firmly and finally set.

United States v. Davis, 2019 U.S. Dist. LEXIS 36348 (W.D.N.Y. Mar 6, 2019)
 

United States v. Delaney, 2019 U.S. Dist. LEXIS 28792 (W.D.Va. Feb. 22, 2019)

United States v. Fleurival, 2019 U.S. Dist. LEXIS 20057 (W.D.Va. Feb. 6, 2019)

United States v. Glore, 2019 U.S. Dist. LEXIS 35838 (E.D.Wis. Mar. 6, 2019)

United States v. Kamber, 2019 U.S. Dist. LEXIS 15691 (S.D.Ill. Jan. 31, 2019)

United States v. Newton, 2019 U.S. Dist. LEXIS 33356 (W.D.Va. Mar. 1, 2019)

United States v. Potts, 2019 U.S. Dist. LEXIS 35386 (S.D.Fla. Mar. 6, 2019)

– Thomas L. Root

“Talk to Me,” Appellate Court Says – Update for March 7, 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.

YOU DON’T HAVE TO SAY MUCH, BUT YOU HAVE TO SAY SOMETHING…

explain190307Last year, the Supreme Court held in Chavez-Meza v. United States  that a judge ruling on an 18 USC 3582(c)(2) motion for reduction of sentence must say “enough to satisfy the appellate court that he has considered the parties’ arguments and has a reasoned basis for exercising his own legal decision-making authority.” Last week, the 4th Circuit put some meat on those bones, remanding two 3582(c)(2) cases for a more reasoned explanation from the district judge.

A 3582(c)(2) motion is a post-conviction motion permitted in very limited circumstances, where the U.S. Sentencing Commission has reduced a Guidelines level for an offense, and made that reduction retroactive under USSG §1B1.10. In the past decade, the only such reductions have been several rewrites of the drug quantity tables, that brought reduced sentences to thousands of federal inmates.

Paulette Martin is doing a life sentence for a major drug crime. She sought a 2-level reduction, which would make her eligible for a 360-month sentence, citing her prison record of achievement that even the government conceded was “among the best that it has seen.” But the district court denied her motion, with an explanation that was little more than “a recitation of Martin’s original criminal behavior.”

In a different case, Luis Mangual has health issues as well as an excellent prison record. When he became eligible for a reduction, the government argued he should be sentenced at the top of his amended range, solely because he was sentenced at the top of his range at his initial sentencing some years ago. The judge followed the government’s suggestion, never mentioning Luis’s health or prison record.

whatsaid170918The 4th Circuit reversed both cases in a consolidated decision. It held that the sentencing judge’s terse explanation in denying Paulette “is not the standard… for sentence-reduction motions. The district court was content to memorialize Martin’s past transgressions without giving any weight to the multitude of redemptive measures that she has taken since she was initially sentenced to life in prison…” In Luis’s case, the Circuit panel said, “given that there is no reference to his new mitigation evidence, it is clear that the district court did not comply with the standards set forth in Chavez-Meza…”

The 4th said the district courts “must provide a rationale as to why two individuals who have placed themselves on a positive life trajectory, despite the challenges of a lengthy period of incarceration, should receive no relief for their rehabilitation.”

United States v. Martin, Case No. 17-6199, 2019 U.S. App. LEXIS 5620 (4th Cir., Feb, 26, 2019)

– Thomas L. Root

So What’s The Second Step? – Update for March 6, 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.

FIRST STEP, SECOND STEP – CRIMINAL JUSTICE REFORM STILL DEBATED

Psychology professor Keith Humphreys wrote in the Washington Post last week that even after the First Step Act, the Feds still imprison seven times as many inmates as in 1980.

Postgraphic190307Critics complained that First Step would leave the nation “overwhelmed with violent crime.” But Humphreys asked why the federal government should imprison anyone at all. “In reality,” he wrote, “virtually every murder, rape, assault and battery is charged under state law and results in imprisonment at the state or local level. The federal prison system holds only 1.8% of U.S. inmates serving time for violent crimes… It is implausible that the number of and deserved sentence length for such offenses are seven times greater than they were before the federal prison population exploded.”

Noting that the federal criminal code has exploded with white-collar crimes, carjacking, DVD piracy, and street-corner drug dealing ¬– all offenses that states punish as well – Humphreys suggests that “the extremely broad coalition that supported the First Step Act can reasonably aim higher in its next round of proposed reform, returning the federal prison system to its traditional role as an important – but small – part of the U.S. correctional system.”

softoncrime190307Meanwhile, the ultra-progressive Socialist Worker last week complained that First Step “is more of a tip toe than a first step. But… no matter how ineffective, First Step is a sign of changing times. It wasn’t too long ago that any politician who favored prison reform would be labeled as ‘soft on crime’. First Step reflects a lessening of the tough-on-crime rhetoric…”

It is virtually impossible to count the number of people benefitting from the retroactive Fair Sentencing Act Sec. 404 of the First Step Act) but last week The Providence Journal reported that “so far, 14 Rhode Islanders convicted under stiff mandatory-sentencing laws have gained early release under the newly enacted federal law called the First Step Act…”

Washington Post, The new criminal justice law will modestly shrink prison populations. Should we go further? (Feb. 25)

Socialist Worker, Is First Step a Step Forward? (Feb. 25)

Providence Journal, ‘First Step’ toward freedom for R.I. drug offenders (Mar. 2)

– Thomas L. Root

One Lost, One Still in Certiorari Limbo – Update for March 5, 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.

LAST WEEK’S SCORE IS 0-1-1 ON SCOTUS CERTIORARI

Two Supreme Court petitions for certiorari (which is how parties get the Court to take their cases for review) came up last week, leaving our score 0-1-1.

jenga190305The petition in United States v. Rivera–Ruperto, important to people with stacked 924(c) sentences, who were left behind by the First Step Act’s nonretroactivity, asked whether 160 years for a defendant who carried a gun to multiple government-staged drug buys could get 130 years’ worth of stacked 924(c) sentences complied with the 8th Amendment ban on cruel and unusual punishments. Despite a lot of interest in the criminal justice community that this argument be addressed (and the 1st Circuit’s remarkable en banc opinion asking SCOTUS to take up the issue), the Supremes denied certiorari last week without further comment.

Meanwhile, the government’s request for certiorari in United States v. Wheeler was relisted a second time, and yesterday appeared to be relisted yet again. As noted last week, Wheeler asks whether a prisoner whose 2255 motion challenging a statutory minimum was denied based on current circuit precedent may later seek habeas relief in a 2241 petition (allowed by the 2255(e) “escape clause”) on the ground that the circuit’s interpretation of the statutory minimum has changed. A relist does not mean that cert will be granted, but it increases the odds.

Beneath the surface in Wheeler there is percolating a mootness battle. The 4th Circuit refused to stay its decision in the case, instead issuing the mandate – which is the green light for the district court to apply its holding – nine months ago. Last week, the district court got around to resentencing defendant Gerald Wheeler, and reduced his sentence to time served. Gerry walked out the door a free man, having had whopping eight months cut off his 120-month sentence.

mootness190305In an inversion of what usually goes on at the Supreme Court – a defendant begs to be heard while the Dept. of Justice Solicitor General’s office argues the case is unworthy of review – the government filed a letter with SCOTUS last week arguing that “the grant of habeas relief to shorten [Gerald’s] term of imprisonment means that this case ‘continue[s] to present a live controversy regarding the permissibility of such relief.’”  Gerry’s lawyers, showing their irritation at the government’s conduct in the case, shot back that the Supremes should take a hard pass on this one:

The district court entered its written judgment on March 1, 2019, and Mr. Wheeler has filed a notice of appeal to challenge one aspect of the district court’s resentencing decision. During the course of those appeal proceedings, the government will have the opportunity to ask the en banc Fourth Circuit to reverse the panel decision… Given that the government recently—in the middle of this case—changed a two- decades-old position regarding its interpretation of § 2241, the opportunity for additional percolation in the courts of appeals would be beneficial for this Court’s ultimate review.

Now one might wonder why Gerry, now a free man (to the extent that anyone on supervised release is truly free) would have found anything to appeal in a “time served” sentence. No one involved in the case has Skyped me to explain this, but I suspect his lawyers, whose primary duty to their client was to get him out of prison, filed the notice of appeal in order to be able to do exactly what they have done: to argue that because the case is headed back to the 4th Circuit, the Supreme Court does not need to take it up at this time.

The Supreme Court neither granted nor denied certiorari on the case yesterday, suggesting yet another realist. The Court undoubtedly wanted to digest the dueling letters it received at the end of last week.

lovelawyerB170811My selfish view is that I would like the Supreme Court to settle the issue on the 2255(e) “escape clause,” going with the ten circuits that recognize the legitimate use of a 28 USC 2241 petition in cases like Gerald’s. But Gerald’s lawyers – the Federal Public Defender in the Western District of North Carolina – are doing some first-rate lawyering for their client. As a result, he awoke last Saturday in his own bed for the first time in almost a decade.

That’s what good criminal defense lawyering is all about.

Sentencing Law and Policy, After swift cert denial in Rivera-Ruperto, should I just give up hoping for an improved Eighth Amendment to check extreme non-capital sentences? (Feb. 25)

United States v. Wheeler, Case No. 18-420 (Sup.Ct.) petition for certiorari pending)

– Thomas L. Root

Could SCOTUS Decision in Haymond “Bring Down Supervised Release?” – Update for March 4, 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.

AN UNSURPRISING WIN AND A PROMISING ORAL ARGUMENT

The Supreme Court last week ruled that even if a defendant’s plea agreement includes an appeal waiver, defense counsel renders ineffective assistance of counsel by not filing a notice of appeal  if the defendant asks for one.

The decision – Garza v. Idaho – is not such a big deal. Every circuit that has considered the question, except for the 3rd and 7th, already follows the rule.

appeal181107Since the 2000 Roe v. Flores-Ortega decision, if a defendant asks defense counsel to file a notice of appeal, and the lawyer does not, it is considered ineffective assistance of counsel (which violates the 6th Amendment) regardless of whether the appeal had any chance of winning. Some courts, however, have wondered whether the Roe rule should apply where a defendant’s plea agreement waiving appeal rights. A few places, including Idaho, have held that in that case, failure to file a notice of appeal would be ineffective assistance of counsel only if the defendant could show a reasonable probability that he or she would have won on appeal.

easyappeal190304Last week, the Supreme Court disagreed. It noted that even a defendant waiving appeal retains the right to appeal limited issues (such as claiming defense counsel was ineffective for ever getting the defendant to sign the plea agreement to begin with). The Supremes said that filing the one-page notice of appeal is very easy (the notice does not even have to list the issues being appealed), and most defendants have a pretty ill-formed idea of what the issues should be before the transcripts are prepared. For those reasons, SCOTUS said, the Roe rule should apply for plea waivers: if your lawyer fails to file a notice of appeal after you ask him or her to, it is ineffective assistance of counsel, even where you waived your appeal rights.

Perhaps more significant, the Supremes heard oral argument last week that could bring down supervised release. The case question the constitutionality of 18 USC 3583(k), which requires convicted sex offenders to return to prison for at least five years if a judge finds they have committed certain crimes. The defendant in the case, Andre Haymond, served time for child porn, and was returned to prison after he violated supervised release. He argued that the law violates his right to have his sentence determined by a jury, rather than a judge, beyond a reasonable doubt.

Eight justices seemed likely to agree with him, even if it was not yet clear how they will remedy the constitutional violation. Several questioned the government’s view that a jury was not required to find the facts leading to a supervised release violation and more prison time. Much of the oral argument focused less on whether the law was unconstitutional and more on how to fix it.

supervisedleash181107Haymond is consequential to all of supervised release. As it is, while on supervised release, a defendant is subject to violation for a variety of technical, non-criminal conduct, and may be returned to prison if the court finds by a mere preponderance of the evidence that the defendant committed the violation. Haymond could upend this, extending the constitutional guarantees of Apprendi v. New Jersey and Blakely v. Washington (that people can lose liberty only upon admissions of guilt or findings of a jury beyond a reasonable doubt) to supervised release violations as well. In fact, Justice Samuel Alito – the only Justice in the government’s corner – complained during argument that a ruling for Haymond could “bring down the entire supervised release system.”

Statistics say one out of three people released on supervised release will be violated, making this case huge.

Ohio State University law professor Doug Berman said in his Sentencing Law and Policy blog that “there may now be eight Justices prepared to extend Apprendi/Blakely rights to supervised release revocation. Now we what to see just how big the ultimate opinion will be (and how loudly Justice Alito will complain about more procedural rights for criminal defendants).”

Garza v. Idaho, Case No. 17-1026 (Feb. 26, 2019)

United States v. Haymond, Case No. 17-1672 (argued Feb. 26)

Sentencing Law and Policy, Haymond seemingly to become major Apprendi progeny altering federal supervised release revocations (Feb. 26)

– Thomas L. Root

A Star is Born to Help the Dying – Update for February 28, 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 COMPASSIONATE RELEASE THE SLEEPER STAR OF FIRST STEP?

compassion160208Ohio State law professor Doug Berman, whom I cite often, wrote in his Sentencing Law and Policy blog last week that he “considers the statutory changes to the so-called compassionate release provisions in federal law to be the ‘sleeper provisions’ of the First Step Act,” chiefly because for the first time, inmates may ask their sentencing courts directly for compassionate release (18 USC 3582(c)(1)) if the Federal Bureau of Prisons does not act within 30 days, or if – after going through the BOP’s administrative remedy process – the inmate is denied.

Since the BOP usually takes four months plus to grant compassionate release in the rare cases the agency did so, this provision is important. Maybe no more will die like Steve Cheatham did. Sick with cancer, he filed for compassionate release on Dec. 13. The BOP denied receiving it until Jan. 11. Desperate to get him home, Steve’s lawyer filed with Steve’s sentencing judge on Jan. 30. The court granted compassionate release the next day. Before Steve could be told the news that afternoon, he died at FMC Butner.

Prof. Berman hopes that the kind of failure seen in Steve’s case will end, and that compassionate release will become a tool to reduce mass incarceration. He wrote that

more than 5000 federal prisoners are in ‘care level’ 3 or 4 facilities… As the [Dept. of Justice Inspector General] explained to the USSC in his testimony three years ago, beyond the humanitarian value of allowing ill persons to receive treatment outside of prison facilities, releasing ill prisoners helps ‘reduce overcrowding in the federal prison system” and can “result in cost savings for the BOP” and in turn the federal taxpayer.

Even if we imagine only 10% of elderly and ill federal inmates are suitable candidates for compassionate release, we still could be looking at a means for releasing many thousands of federal prisoners in relatively short order.

Sentencing Law and Policy, Compassionate release after FIRST STEP: Should many thousands of ill and elderly federal inmates now be seeking reduced imprisonment in court? (Feb. 18)

New York Times, A New Law Made Him a ‘Free Man on Paper,’ but He Died Behind Bars (Feb. 15)

– Thomas L. Root

Not Technically Innocent Enough… – Update for February 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.

WHO YOU GONNA CALL?

violent160620Gurmeet Singh Dhinsa was convicted of racketeering and murdering a witness to keep him from talking to federal agents. Years later, he filed a 28 USC 2241 habeas petition under the “savings clause” in 28 USC 2255(e), arguing that under the Supreme Court’s 2011 Fowler v. United States decision the government had to show that the murder victim was “reasonably likely” to have communicated with a federal official had he not been murdered. Because it could not, Gurmeet said, he was innocent of the offense.

Last week, the 2nd Circuit dismissed Gurmeet’s petition for lack of jurisdiction. Under the “savings clause,” a court only has jurisdiction to hear the 2241 motion if “the remedy by motion is inadequate or ineffective to test the legality of his detention.” The showing required includes being able to prove a change in the law makes the prisoner actually innocent of the offense.

innocent161024The Circuit held Gurmeet had failed to show his innocence under Fowler, because his “extensive racketeering enterprise represents a type of criminal activity that is commonly investigated and prosecuted by federal officials.” Thus, the Court ruled, a juror could have reasonably found that Gurmeet’s two victims were “reasonably likely” to have called federal officials about federal crimes.

Because Gurmeet could not show actual innocence, the trial court correctly held he had failed to meet the requirements of the 2255(e) savings clause. The test is jurisdictional, meaning that the courts had no power to hear Gurmeet’s petition.

Dhinsa v. Krueger, 2019 U.S. App. LEXIS 4865 (2nd Cir. Feb. 20, 2019)

– Thomas L. Root