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Some Pro Tips for Compassionate Release D-I-Y’ers from the 1st Circuit – Update for August 8, 2024

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

1ST CIRCUIT HANDS OUT A FEW PRO TIPS FOR COMPASSIONATE RELEASE MOTIONS

The 1st Circuit reminded us last week that 18 USC § 3582(c)(1)(A) compassionate release decisions are granted largely in the district court’s discretion, and if the district court thinks you’re still a danger to the community, don’t expect love from the court of appeals.

walkedwomantalkedman240808Michel D’Angelo robbed a bank in 2012 dressed like a woman and carrying a purse he told tellers contained a bomb. His lengthy criminal history of burglary, theft, disorderly conduct, criminal threatening, multiple assaults, and trafficking in prison contraband, qualified him under the law at the time as a Guidelines career offender (sentencing range of 210-240 months. The judge varied downward because of Mike’s mental health challenges and gave him 180 months.

In 2022, 11 years after the bank robbery, Mike sought compassionate release. He argued that changes in Guidelines interpretation meant that he would not be a career offender if he were sentenced today, that he had been rehabilitated, and that the BOP had not adequately treated his mental conditions.

The district court denied the compassionate release motion. Last week, the 1st affirmed, finding that the district court’s holding that Mike was still a danger to the public — despite his showing on other 3553(a) factors — was well within the judge’s discretion.

The case arose when USSG § 1B1.13 was still advisory, making some of its holding inapplicable to current compassionate release motions. However, there are two takeaways worth considering for those seeking compassionate release now.

nickdanger220426First, the district court found Mike to still be a danger because he had a long criminal history even before robbing the bank; the robbery was “a frightening and life-endangering offense;” and he had “accumulated a tumultuous disciplinary record while incarcerated.” Also, Mike’s recidivism score was “high,” a fact more important to the Circuit than Mike’s argument that his age – 42 years old – made him statistically less likely to commit new crimes.

The lesson here is that if you have a significant criminal history (Mike’s was a “V”), if you committed a crime of violence, or if you have a checkered institutional disciplinary record, you may have a steep hill to climb getting a compassionate release. If your PATTERN score is a “low” or “minimum,” you should soundly thump that fact.

Second, the 1st agreed that Mike wouldn’t be a career offender if sentenced today, but it held that that fact alone was not extraordinary and compelling. Look to § 1B1.13(b)(6) (change in sentencing law that produces a gross disparity and the prisoner has served 10 years and his or her “individualized circumstances” justify a reduction. Mike had gotten a downward variance sentence to 180 months because of his mental health problems, within what his Guidelines would have been without career criminal status. No gross disparity here, and Mike’s “individualized circumstances,” mainly his institutional conduct and progress, were not good.

The tip is that a change in the law alone is not enough to establish extraordinary and compelling reasons for grant of a compassionate release motion. Read and follow § 1B1.13(b)(6).

nothingcoming210420The final pro tip in this decision arose from Mike’s complaint that the district court was obligated to correctly calculate his lower Guidelines range (without career offender) before performing the 18 USC § 3553(a) “sentencing factors” analysis. The 1st disagreed, finding that the district judge “correctly calculated this lower Guidelines range before explaining why § 3553(a) did not favor reducing Mike’s sentence. Because the district court performed its § 3553(a) analysis after assuming that the career-offender enhancement would not apply, we gather from context that it implicitly considered that Guidelines range as part of its analysis.”

This holding suggests that any compassionate release motion raising the argument that the movant would not have been sentenced as harshly today should include a reasonably detailed analysis of the correct Guideline range and point out that any § 3553(a) analysis should start from the adjusted lower range.

United States v. D’Angelo, Case No. 22-1875, 2024 U.S. App. LEXIS 18794 (1st Cir. July 30, 2024)

– Thomas L. Root

Judge Skeptical At BOP’s Claim That FCI Dublin’s Problems Are In the Rear-View Mirror – Update for August 6, 2024

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

FCI DUBLIN CLOSURE HAS NOT MADE EVERYTHING “HUNKY DORY”

If anyone at Bureau of Prisons headquarters thought that peremptorily closing FCI Dublin and creating a diaspora of its female prisoners across the BOP would solve its sex abuse headache, last week may have dissuaded such hopes.

hunkydory240806Oakland TV station KTVU reported that at a hearing last Friday, US District Court Yvonne Gonzalez Rogers (N.D. Cal.) “slammed” BOP lawyers for trying to dismiss a class action lawsuit over sexual abuse and retaliation at the FCI Dublin and “grilled” BOP Director Colette Peter’s deputy, who flew in from Washington, DC for the hearing.

The BOP shut down FCI Dublin on April 15 following a years-long sex abuse scandal by guards and a federal court’s appointment of a special master to oversee reforms at the prison. Its lawyers now argue that the lawsuit against the BOP is moot because of the closure.

Judge Gonzalez did not receive the argument well:

You’re asking to dismiss this case and are saying that everything is hunky dory, and you can’t even resolve ]a myriad of issues that include giving the women their property back or proper medical treatment]… The BOP caused these problems themselves. It strains credulity that this motion was filed, given everything. Clearly, major issues still need to be resolved… You want this court to wipe its hands clean and go its merry way with respect to those hundreds of individuals that are out there?

KTVU reported that the issues include 126 medical cases, 63 people with substance abuse needs, 39 mental health issues and 137 property claims that are still not resolved. All of these stem from the closure of the prison, where 605 women were transferred to prisons across the country.

BOP lawyers argued that staff can’t process property claims because the prisons to which the women were transferred are “severely understaffed.” The judge testily reminded the attorneys that the transfers and understaffing “was completely of their own doing,” KTVU reported.

The judge had ordered Deputy Director William Lathrop to appear before her or she would throw out the BOP’s motion to dismiss. He testified that a “high-level executive decision” to close Dublin was made about a month before the closure.

nothingtosee240806The judge suggested that the BOP simply spread the problem elsewhere. “So you sent [the incarcerated women] to understaffed facilities and didn’t increase staffing?” the judge asked.

“Correct,” Lathrop answered.

BOP lawyers, for the first time, told the court that another reason for closing Dublin was because local doctors (none of whom were identified) did not want to work at the prison because they were worried the women would falsely accuse them of sexual assault.

The judge expressed her skepticism. “This is all news to me,” she said. “It’s nowhere in the record and I have not heard any evidence of that.”

Documents ordered unsealed last Friday in the lawsuit included Special Master Wendy Still’s report that detailed systemic abuse and inadequate medical and mental health care at Dublin:

Management’s failure to ensure staff adhered to BOP policy put the health, safety and liberty of [adults in custody] at great risk for many years… It is unconscionable that any correctional agency could allow incarcerated individuals under their control and responsibility to be subject to the conditions that existed at FCI-Dublin for such an extended period of time without correction.

Special Master Still, a former corrections professional, wrote that she “continues to have concerns that the mistreatment, neglect and abuse” inmates experienced at the facility not be repeated where they were transferred, “as many of the conditions that existed at this facility appear to be longstanding and systemic in nature.”

The Report was to be made public yesterday but was not posted on the docket as of the morning of August 6th.

dungeon240806The Special Master’s concern is not misplaced. Susan Beaty, an attorney who represents hundreds of women formerly held at Dublin, told KTVU last week that about 200 of the 605 women transferred from the now-closed facility are being held in three BOP detention centers and have lacked access to sunlight for months.

“The lack of access to outdoor space has really compounded the impact of these transfers and the trauma that our clients have already been through,” Beaty said. She reported that one of her clients told her that the BOP is aware of this issue because the prisoner’s unit team told her to “drink milk” to help with Vitamin D deficiencies.

KTVU, Judge slams BOP for trying to dismiss FCI Dublin case; grills deputy director (August 2, 2024)

KTVU, Former FCI Dublin prisoners say they haven’t felt sunlight in months (July 30, 2024)

KQED, Special Master Slams Conditions at FCI Dublin in Report (August 2, 2024)

– Thomas L. Root

Clues to Rahimi Application Pop Up in Circuit 922(g) Decisions – Update for August 5, 2024

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

A PAIR OF § 922(g)(1) CASES

gunfight230919I remain convinced that the Supreme Court’s United States v. Rahimi decision — banning gun possession for an individual who has shown himself to be dangerous is historically justified under the Second Amendment — represents a necessary correction to the wild, wild west of gun rights suggested by Justice Thomas’s New York State Rifle & Pistol Ass’n v. Bruen opinion. In fact, I suspect that Rahimi makes it more likely that people convicted of nonviolent felonies will regain their Second Amendment rights in the next two years.

Two cases decided last week may hint at how courts will approach a post-Rahimi felon-in-possession world.

Carl Langston was convicted of being a felon in possession of a gun under 18 USC § 922(g)(1) after a drunken brawl at a bar. He pled guilty but, on appeal, argued for the first time that § 922(g)(1) was unconstitutional under New York State Rifle & Pistol Ass’n v. Bruen as applied to him.

Last Friday, the 1st Circuit upheld his conviction. The Circuit applied the F.R.Crim.P. 52(b) plain error standard to review because Carl hadn’t raised the issue in the trial court and found that his argument failed because (1) no prior Supreme Court or 1st Circuit holds that § 922(g)(1) is unconstitutional “in any of its applications;” and (2) Rahimi “does not compel the conclusion that § 922(g)(1) is unconstitutional under the Second Amendment as applied to defendants with Hugh’s criminal history.

gun160711In fact, the 1st observed, “rather than compelling the conclusion that § 922(g)(1) is unconstitutional, the Supreme Court’s Second Amendment cases consistently reiterate, albeit in dicta, the presumptive lawfulness of the felon-in-possession statute… The Supreme Court’s majority opinion in Rahimi, joined by eight justices, once again identified prohibitions on the possession of firearms by felons as ‘presumptively lawful’.”

It’s hard to win a “plain error” appeal, as Carl found out. However, the Circuit conceded that Carl’s appeal

presents a serious constitutional claim that the Supreme Court has not yet resolved. As Langston points out, Rahimi held only that an individual may be temporarily disarmed, consistent with the Second Amendment, if a court has found that the individual poses a credible threat to the physical safety of another. Still, the Supreme Court has stated repeatedly over sixteen years, from [District of Columbia v] Heller to Rahimi, that felon-in-possession laws are presumptively lawful. Thus, on plain-error review, we cannot agree with Carl that the mere fact that the government did not introduce historical evidence to support the constitutionality of § 922(g)(1) makes it clear and obvious that his conviction violates the Second Amendment.

Meanwhile, the 3rd Circuit ruled that Dionti Moore, who used his fiancée’s handgun to frighten off intruders at her home while he was on supervised release, had no Second Amendment defense to a § 922(g)(1) felon-in-possession conviction.

The Circuit relied on Rahimi’s holding that it had to find that § 922(g)(1), as applied to Dionti, is “relevantly similar to laws that our tradition is understood to permit… [and that] why and how the regulation burdens the right are central to this inquiry… In other words, a modern firearms regulation passes constitutional muster only if it is “consistent with the principles that underpin our regulatory tradition.”

Comparing 18th and 19th-century laws to disarming a convicted felon while on supervised release, the 3rd ruled that “the bottom line is this: during the founding era, forfeiture laws temporarily disarmed citizens who had committed a wide range of crimes… This historical practice of disarming a convict during his sentence — or as part of the process of qualifying for pardon — is like temporarily disarming a convict on supervised release. After all, the defendant receives a term of supervised release thanks to his initial offense, and… it constitutes a part of the final sentence for his crime’” (quoting the Supreme Court ruling in United States v. Haymond). The Circuit concluded that “[c]onsistent with our Nation’s history and tradition of firearms regulation, we hold that convicts may be disarmed while serving their sentences on supervised release.”

Of course, the Court’s focus on “temporarily” disarming and “disarm[ing] while serving their sentences on supervised release” can easily be read to infer that permanently disarming someone with a felony conviction on his record is a different matter altogether.  

gunfreezone170330One would expect nothing less from the Circuit that handed down the en banc Range v. Attorney General decision, which is currently in front of the 3rd Circuit on remand.  Incidentally, supplemental briefs by both Bryan Range and the government were filed last Friday, suggesting a new decision is on the fast track in Philadelphia. There is little doubt that whatever the decision, it will end up again at the Supreme Court.

United States v. Langston, Case No. 23-1337, 2024 U.S.App. LEXIS 19353 (1st Cir. Aug 2, 2024)

United States v. Moore, Case No. 23-1843, 2024 U.S.App. LEXIS 19282 (3d Cir. Aug 2, 2024)

– Thomas L. Root

Some Short Stuff – Update for August 2, 2024

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

Today, some short reports for easy beach reading…

shorts240802

SUMMERTIME SHORTS

retro160110Sentencing Commission Retroactivity Decision, Priorities For Next Year Set For Aug 8: At a scheduled Aug 8 meeting, the US Sentencing Commission will decide whether four proposed Guidelines changes to become effective in November will be retroactive.

The four changes for which retroactivity is on the table are

• the acquitted conduct amendment;

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

• a change to Commentary in § 2K2.4 to permit grouping of an 18 USC § 922(g) gun count with a 21 USC § 841 drug trafficking count where the defendant has a separate 18 USC § 924(c) gun conviction based on drug trafficking.

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

The Commission will also adopt priorities for the coming year.

US Sentencing Commission, Public Meeting, Thursday, August 8, 2024

‘Dirty Dick’s’ Woes Continue: A superseding indictment handed up last week accused former Bureau of Prisons correctional officer Darrell Wayne “Dirty Dick” Smith of sexually abusing more inmates at FCI Dublin.

Last Thursday, a federal grand jury charged Smith with 15 counts of sexual abuse, including a civil rights violation, against five women in their cells and a laundry facility between 2016 and 2021.. Smith, known to detainees as “Dirty Dick,” had previously been indicted of sexually abusing three female inmates.

He is accused by inmates of actively roaming the prison, seeking out victims, and locking women in their cells until they exposed themselves to him.

L.A. Times, Guard at ‘rape club’ prison faces new charges of sexually abusing inmates (July 26, 2024)

DOJ Sides With Prisoners In SCOTUS First Step Case: The Supreme Court has had to appoint private lawyers to argue the other side of a pending case, Hewett v. United States, asking whether the First Step Act requires a resentencing to apply changes in mandatory minimums favorable to defendants.

goodlawyer240802The Dept of Justice has told the high court that “the government agrees that the best reading of Section 403(b) is that Section 403’s amended statutory penalties apply at any sentencing that takes place after the Act’s effective date, including a resentencing.”

In cases where the government agrees with the petitioner, the Supreme Court appoints a lawyer to argue the other side so that the Court’ decision is based on a thorough examination of the issue. In Erlinger v. United States, decided last month, DOJ agreed with the petitioners that juries should decide whether Armed Career Criminal Act predicate crimes occurred on separate occasions, requiring SCOTUS to appoint counsel to argue against the petitioner. The Court appointed a private attorney to argue the side abandoned by the government.

For Hewitt, the Court appointed Michael H. McGinley, Global Co-chair of the Securities and Complex Litigation practice group for mega law firm Dechert LLP, to argue that First Step does not let defendants benefit from more liberal sentencing terms if their original sentence was imposed before the law passed.

Supreme Court, Order (July 26, 2024)


hardtime240801‘Hard’ Federal Time Converts Another One: Peter Navarro, who completed a 4-month federal sentence for contempt of Congress two weeks ago just in time to be whisked to Milwaukee to address the Republican National Convention, said last week that federal law imposes harsher sentences than necessary for drug offenses.

“The standard that we want to have when we think about the criminal justice system, which I’ve been inside of now and I understand this better, there are bad people doing bad things, but there’s good people doing bad things as well,” Navarro said in a TV interview.

Navarro said that the longer people are in prison, the higher the chance that they will commit more crimes because they have “fewer skills” and “get more angry.”

The Trump advisor also said the costs of housing inmates costs about $60,000 a year per inmate, but that placing people on house arrest or in halfway homes reduces the costs by roughly half.

Just the News, Navarro urges U.S. to be ‘smart’ on crime, not ‘soft’ on crime following prison sentence (July 23, 2024)

– Thomas L. Root

Congress Orders BOP To Spend Money It Doesn’t Have – Update for July 31, 2024

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

FPOA IS LAW, BUT BOP MONEY WOES PERSIST

hr3019oversight240528President Joe Biden signed the Federal Prisons Oversight Act into law last Thursday. The bill is intended to strengthen oversight of the Federal Bureau of Prisons after The Associated Press reported on systemic corruption, failures and abuse in the federal prison system.

The FPOA, which passed the Senate on July 10th and the House last May, establishes an independent ombudsman to field and investigate complaints by prisoners, their families, and staff about misconduct and deficiencies. It also requires that the Dept of Justice inspector general conduct regular inspections of all 122 federal prison facilities, issue recommendations to address deficiencies and assign each facility a risk score. Higher-risk facilities would receive more frequent inspections.

BOP Director Colette Peters praised the bill in testimony before the House Judiciary Subcommittee on Crime and Federal Government Surveillance last week, but told the Subcommittee that the agency will need tens of millions of dollars in additional funding “to effectively respond to the additional oversight and make that meaningful, long-lasting change.”

“You inherited a mess. I mean, you inherited a mess,” Congressman Kelly Armstrong (R-ND) told Peters during her testimony last Tuesday. And she did, a mess that is not going to go away without money.

understaffed220929For instance, Peters noted that the new FPOA limits the BOP’s use of augmentation, the practice of using education, medical and other staff as stand-in corrections officers. “While I agree with the sentiment of limiting augmentation,” Peters told the Subcommittee, “today in the midst of our staffing crisis, without augmentation, we will mandate more overtime which will not only cost tens of millions of dollars more per year (~$60 million) but again, I will note the human cost and the physical and mental wear and tear on our people.”

Last year alone, the BOP paid more than $128 million in incentives and more than $345 million in overtime. Ordering the BOP to stop augmentation without giving the agency the money needed to hire COs is like trying to stamp out poverty by ordering poor people to be rich.

Peters testified, “Over the past 10 years, BOP’s budget only increased approximately 23% (which equates to about 2% per year). Over that period, budgeting resulted in a reduction of 3,473 authorized positions… Over the past 10 years, we did not receive a total of more than 1,900 authorized positions and 7,000 FTEs requested in the President’s Budgets… BOP has temporarily closed three institutions and 13 housing units at 11 institutions due to dangerous conditions. They account for a loss of more than 4,000 beds at every security level.”

Writing in Forbes last week, Walter Pavlo pointed out that the BOP has some control over its destiny:

One way to help reduce the stress the agency is under is by reducing the number of prisoners in prisons, something that could be done with a full implementation of the First Step Act and Second Chance Act. Director Peters noted that the prison population has slightly increased over the past few years despite the legislation. Those two laws, both passed and signed into law under Republican administrations (Donald Trump and George W. Bush respectively) allow many low and minimum security prisoners to reduce their prison term by up to a year and also place them in the community (halfway houses) for longer periods of time.

No room at the inn?
No room at the inn?

An NBC News investigation found that the BOP is not placing as many people in the community as it could. The result is that many prisoners stay in correctional institutions far longer than necessary when less restrictive and less expensive prerelease custody (halfway house/home confinement) should be available. However, a noted shortage of halfway house space is preventing the BOP from placing more people in confinement in the community. Retired BOP Acting Director Hugh Hurwitz said, ‘Since the First Step Act was signed, the BOP knew it needed more capacity but nearly 6 years later, halfway house space continues to be a problem’.”

“We believe in accountability, oversight, and transparency,” Peters told the House Subcommittee. “But we cannot do this work alone.” That is true, but there is more that the BOP can do.

Associated Press, Biden signs bill strengthening oversight of crisis-plagued US Bureau of Prisons after AP reporting (July 25, 2024)

Sen Jon Ossoff, SIGNED INTO LAW: Sens. Ossoff, Braun, & Durbin, Reps. McBath & Armstrong’s Bipartisan Federal Prison Oversight Act (July 25, 2024)

BOP, Oral Statement of Director Colette S. Peters, July 23, 2024,
House Judiciary Committee, Subcommittee on Crime and Federal Government Surveillance

Forbes, Bureau of Prisons Director Testifies At House Judiciary Committee (July 24, 2024)

– Thomas L. Root

3rd Circuit Holds Lawyer’s Sentence Misadvice is Ineffective Assistance – Update for July 29, 2024

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

WHEN LAWYERS AREN’T JUST WRONG, BUT VERY, VERY WRONG

It’s long been held that a lawyer’s duty during plea negotiations is to advise a defendant on the strength of the government’s case and the difference between the sentence you’d get at trial and the one you’ll get taking the plea. But what if your lawyer blows it?

wrong160620Many a prisoner has complained in a § 2255 motion that his or her lawyer badly misestimated the sentence, and if counsel had gotten it right (or close to right), the defendant would have accepted the deal. And many of those prisoners have lost their 2255s because the court holds that their lawyers’ bad guesses are not the same as ineffective assistance.

But sometimes, the miss is just too wide.

Steven Baker had committed a series of armed bank robberies. When he faced trial in 2010, Steve’s attorney advised him that he faced a total of 15-17 years’ imprisonment if he accepted a government offer to plead to one robbery and one 18 USC § 924(c) gun charge, but if he didn’t take the deal, the government would charge him with two other armed robberies. Counsel said the three potential § 924(c) counts would give him 21 years consecutive to his bank robbery Guidelines.

Wrong, wrong, wrong. This was all before the First Step Act passed in 2018, so Steve faced a consecutive 57-year mandatory minimum sentence under the § 924(c) “stacking” provision then in effect. Based on the difference between 17 years with a plea and 21 years rolling the dice at trial, Steve turned down the plea. He was charged with the other robberies and went to trial, where he, of course, was convicted on all counts. He got 57 years on the § 924(c) counts plus 87 months more on the bank robbery charges.

Steve filed a § 2255 motion claiming his lawyer was ineffective in advising him so badly about 21 years versus 57 years. The district court turned him down, but last week, the 3rd Circuit vacated his conviction.

pleading170502“When addressing a guilty plea, counsel is required to give a defendant enough information to make a reasonably informed decision whether to accept a plea offer,” the Circuit held. “We have little difficulty concluding that this more than three-decade miscalculation of Baker’s sentence exposure on the three potential § 924(c) counts is objectively unreasonable.”

The bigger issue was whether Steve had proven he was prejudiced, that is, that he would have taken the 17-year plea deal if his lawyer had accurately explained the likely 57-year stacked sentence if he went to trial. The trial court found Steve’s testimony that he would have taken the deal to lack credibility, but the 3rd Circuit said the very fact that the difference between the 21 years estimated by counsel and the 57 years plus he got was all the evidence it needed.

Considering the sentence-exposure disparities as evidence of prejudice “makes good sense,” the 3rd ruled.

A great disparity provides sufficient objective evidence—when combined with a defendant’s statement concerning his intentions—to support a finding of prejudice… Moreover, while a defendant’s calculus in accepting or rejecting a plea offer may involve many variables, knowledge of the comparative sentence exposure between standing trial and accepting a plea offer will often be crucial. Large sentence-exposure disparities weigh directly on this “crucial” decision.

hammer160509Steve’s actual sentencing range was “extraordinarily greater than the 15-17 years he would have received had he accepted the plea offer,” the Circuit said. “As Baker states, the 57-year mandatory minimum alone would almost certainly mean that he would ‘die in prison.’ This great sentence-exposure disparity, the true scope of which Baker did not know due to his counsel’s underestimate of the sentence for the potential firearm charges, weighs heavily in favor of prejudice.”

Baker v. United States, Case No. 23-2059, 2024 U.S. App. LEXIS 18333 (3d Cir., July 25, 2024)

– Thomas L. Root

Deja Vu for the Second Amendment at the 9th Circuit – Update for July 23, 2024

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

9TH CIRCUIT ‘GROUNDHOGS’ DUARTE GUN DECISION

groundhogday240723You may recall that in May, a 9th Circuit three-judge panel held that the 18 USC § 922(g)(1) ban on felons possessing guns was held to violate the Second Amendment rights of a guy convicted of drug trafficking.

Last week, the Circuit withdrew the opinion and set the case for en banc review.

In an unusual and entertaining “dissental” from grant of review, 9th Circuit Judge Lawrence VanDyke wrote,

What would you do if you were stuck in one place and every day was exactly the same, and nothing that you did mattered?’ In the Ninth Circuit, if a panel upholds a party’s Second Amendment rights, it follows automatically that the case will be taken en banc. This case bends to that law. I continue to dissent from this court’s Groundhog Day approach to the Second Amendment.

Judge VanDyke only wrote what everyone already knows to be true. “In this circuit,” he said of the 9th, “you could say that roughly two-fifths of our judges are interested in faithfully applying the totality of the Supreme Court’s Second Amendment precedent when analyzing new issues that have not yet been directly addressed by the Court. The other 17/29ths of our bench is doing its best to avoid the Court’s guidance and subvert its approach to the Second Amendment. That is patently obvious to anyone paying attention. To say it out loud is shocking only because judges rarely say such things out loud….”

Meanwhile, the 8th Circuit last week struck down a Minnesota law preventing 18-to-20-year-olds from carrying handguns in public. The case, Worth v. Jacobson, is noteworthy for its application of United States v. Rahimi: “Minnesota states that from the founding, states have had the power to regulate guns in the hands of irresponsible or dangerous groups, such as 18 to 20-year-olds,” the Circuit wrote. “At the step one ‘plain text’ analysis, a claim that a group is ‘irresponsible’ or ‘dangerous’ does not remove them from the definition of the people.”

groundhogs240723

The 8th ruled that “a legislature’s ability to deem a category of people dangerous based only on belief would subjugate the right to bear arms “in public for self-defense” to “a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees,” citing New York State Rifle & Pistol Ass’n v. Bruen and Rahimi.

The decision leaves little doubt that the 8th sees a ban on the entire category of people once convicted of felonies to be equally untenable under the Second Amendment. What this portends for the inevitable Supreme Court showdown on § 922(g)(1) depends in large part on the Third Circuit in Range and the Ninth’s rewrite of Duarte.

United States v. Duarte, Case No. 22-50048, 2024 U.S. App. LEXIS 17601 (9th Cir., July 17, 2024)

Worth v. Jacobson, Case No. 23-2248, 2024 U.S. App. LEXIS 17347 (8th Cir. July 16, 2024)

– Thomas L. Root

Building on the Gifts of Predecessors’ Struggles: Thank You, Congresswoman Jackson Lee – Update for July 22, 2024

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

OBIT FOR A JUSTICE REFORM WARRIOR

Representative Sheila Jackson Lee (D-TX), a leading liberal voice for racial and criminal justice reform during her three decades in the House of Representatives, died last Friday of pancreatic cancer at age 74.

jacksonlee240722Jackson Lee, elected to Congress in 1994 representing a district in urban Houston, has served in the past as chairwoman of the Judiciary Subcommittee for Crime, Terrorism and Homeland Security (and currently had been the ranking member). She was a senior member of the Judiciary, Homeland Security and Budget committees. She was the author and lead sponsor of the legislation that in 2021 established Juneteenth, commemorating the end of slavery in the United States, as the first new federal holiday in 38 years.

Jackson Lee’s life ambition back in 1960s was to be a secretary, but she received a college scholarship created after Rev. Martin Luther King was assassinated in 1968. She made the most of her opportunity, graduating from Yale with a political science degree and earning a law degree in 1975 from the University of Virginia.

She said she had benefitted from “the hills and valleys, the broken bodies and broken hearts, the loss of life of many who have gone on before me.”

Federal prisoners may remember her for her dogged determination to reduce sentence length. Starting in 2003, she introduced what inmate lore generally calls the “65% law,” a measure that would have let prisoners convicted of nonviolent offenses serve only a portion of their sentences. She would introduce the bill at the beginning of every two-year Congress, always as the only sponsor, only to see it die a lonely death without getting as much as a subcommittee hearing.

The current version, the Federal Prison Bureau Nonviolent Offender Relief Act of 2023 (H.R. 54) calls for nonviolent offenders who are at least 45 years old and who have zero criminal history points and no incident reports to serve only 50% of their sentences. This bill, like her prior efforts, has zero percent chance of passage.

On the House committee she chaired, Jackson inhumanecovidinmate220124Lee will be remembered for lambasting then-director Michael Carvajal for the Bureau of Prisons’ myriad COVID failures. In 2022, she worked with Majority Whip Richard Durbin (D-IL) in a failed push to pass a bill, the Terry Technical Correction Act (H.R. 5455), that would have clarified that individuals convicted of the lowest level crack offenses under 21 USC § 841(b(1)(C) before the First Step Act passed could apply for its retroactive application under Section 404 of the Act. The bill would have undone a Supreme Court decision that prohibited this known as Terry v. United States.

Many of her attempts to pass reform legislation failed, but she never stopped swinging above her weight. Criminal justice reform will be the poorer for her untimely passing.

New York Times, Representative Sheila Jackson Lee, a Champion for Progressive Causes, Dies at 74 (July 20, 2024)

H.R. 54, Federal Prison Bureau Nonviolent Offender Relief Act of 2023

Hearing, Oversight of the Federal Bureau of Prisons (Feb 3, 2022)

Press Release, Senators Introduce Legislation to Correct Scotus Ruling on Retroactivity of Crack Cocaine Sentencing Reform (Oct 1, 2022)

– Thomas L. Root

DOJ Report Contains Recidivism Detail – Update for July 19, 2024

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

WELCOME BACK, RECIDIVISTS!

welcomeback240719There has been little in compassionate release litigation that has been more disappointing (and intellectually dishonest) than the government’s ratchet-like arguments about the danger that the prisoner seeking a sentence reduction poses to the public if he or she gains a release earlier than the expiration of the original sentence.

The Dept of Justice PATTERN system provides a metric comparing an inmate’s likelihood of general recidivism and violent crime recidivism to the universe of federal prisoners by rating the inmate in 15 categories. The resulting ratings place an inmate in categories of minimum, low, medium or high risk of recidivism.

PATTERN was adopted to work hand-in-glove with the recidivism reduction program adopted in the First Step Act. A prisoner could, through good conduct and successful completion of programs designed to decrease recidivism, lower his or her recidivism level and benefit from the rewards of good programming, time reduction of up to a year and early placement in halfway house or home confinement.

DOJ officially has a fan of PATTERN, saying that it has “confidence in the accuracy of PATTERN,” a system that uses “many factors that are scientifically-weighted based on their predictability of reduced recidivism… factors most predictive of the risk of recidivism… The Department [has] measured PATTERN to ensure that it was predictive across all races and genders.”

At least, it’s been a fan except where fandom is inconvenient. Where an inmate’s risk of recidivism is “medium” or “high,” you can depend on the government to argue to the court that the risk to the public of early release is too elevated to justify compassionate release. But when a prisoner’s recidivism risk is “low” or “minimum,” you can usually count on the US Attorney to argue that despite the rating, grant of compassionate release will endanger the public anyway.

headsiwin240719Heads, I win. Tails, you lose.

Up to now, a prisoner’s risk to the public has been an easy issue for the government to demagogue. An FSA-eligible prisoner seeking to convince a court that the DOJ’s own rating is reliable facing a dearth of real-world data to cite. However, the DOJ’s First Step Act Annual Report – June 2024 contains ample recidivism data that underscores the likelihood that PATTERN has it right.

People with minimum PATTERN recidivism ratings reoffend at the rate of 2.8%. People with low ratings reoffend at the rate of 5.6%. The medium-rating folks commit new crimes at the rate of 21.9%, while the high-rating people top the charts at 38.2%.

What is surprising is that sentence length appears to be largely untethered from recidivism. People serving five years or less reoffend at the rate of 7%. Those who do 6-10 years recidivate at the rate of 10.5%, while those serving 11-15 years have a reoffense level within three years of 20.4%. Only people who have done more than 15 years reverse the trend, with a recidivism rate of 15.6%.

Still, these reoffense rates undermine the conventional wisdom that longer sentences are effective in curbing recidivism.

Recidivismtable240719Protection of the public, one of the sentencing factors listed in 18 USC § 3553(a), is undoubtedly an important element of corrections policy. The First Step requirement that the BOP keep track of its FSA “graduates” makes an important contribution to addressing the issue with fact instead of hyperbole.

Dept of Justice, First Step Act Annual Report – June 2024

Dept of Justice, The First Step Act of 2018: Risk and Needs Assessment System (July 19, 2019)

Dept of Justice, The First Step Act of 2018: Risk and Needs Assessment System Update – January 2020 (January 15, 2020)

– Thomas L. Root

5th Circuit Endorses District Court Discretion on Compassionate Release Motions – Update for July 18, 2024

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

5TH CIRCUIT DERAILS DOJ EFFORT TO DELEGITIMIZE GUIDELINES

ratchet211108I suppose it is unsurprising that the Dept of Justice sees appropriate judicial discretion as a ratchet. It’s fine if a judge employs his or her flexibility to tighten the screws on a defendant, but any attempt to fashion a remedy that seeks to ameliorate harsh sentences that could not be imposed today is seen by the denizens of the US Attorney’s offices as a threat to the republic.

After the First Step Act permitted prisoners to bring so-called compassionate release motions – petitioning courts under 18 USC § 3582(c)(1)(A) to reduce sentences for extraordinary and compelling reasons – courts labored for almost five years to pound square-peg Sentencing Guideline 1B1.13 into the new round hole of defendant-initiated compassionate release motions. The old version of 1B1.13, written back in the day when only the Federal Bureau of Prisons could initiate a compassionate release request, was minimally relevant to the new regime. However, the Sentencing Commission lost its quorum a mere 11 days after First Step was signed into law, and could not promulgate a new § 1B1.13 for prisoner-brought motions.

Nearly all courts of appeal rejected DOJ demands that the old § 1B1.13 be slavishly applied to compassionate release motions, holding that commentary for motions brought by the BOP was inapplicable to motions brought by defendants and that what constituted extraordinary and compelling reasons for compassionate release motions was left to the broad discretion of district courts, limited only by the statute’s directive that rehabilitation alone was an insufficient basis for a sentence reduction.

In the absence of a guiding Sentencing Commission policy statement, appellate courts split on whether district courts could consider non-retroactive changes in the law in deciding whether extraordinary and compelling reasons existed for compassionate release. Such was a major concern. First Step changed mandatory minimum sentences for a number of drug offenses and clarified a drafting blunder in 18 USC § 924(c) – which imposes mandatory consecutive sentences for using or carrying a gun in a drug offense or crime of violence – but did not make those changes retroactive.

In some circuits, prisoners with draconian 50-year-plus sentences for 924(c) offenses that today would carry 15 years could get relief. In other places, appellate courts ruled that such reductions were impermissible because old § 1B1.13 did not permit it.

draconian170725That was the state of things until last November, when the reconstituted Sentencing Commission’s rewritten 1B1.13 became effective. The new 1B1.13 provided ample guidance as to what a district court must consider to be “extraordinary and compelling” reasons for grant of a 3582(c)(1)(A) motion, including

[i]f a defendant received an unusually long sentence and has served at least 10 years of the term of imprisonment, a change in the law (other than an amendment to the Guidelines Manual that has not been made retroactive) may be considered in determining whether the defendant presents an extraordinary and compelling reason, but only where such change would produce a gross disparity between the sentence being served and the sentence likely to be imposed at the time the motion is filed, and after full consideration of the defendant’s individualized circumstances.

The USSC also added a “catch-all,” authorizing district courts to consider as extraordinary and compelling reasons “any other circumstance or combination of circumstances that, when considered by themselves or together with any of the reasons [listed in 1B1.13] are similar in gravity…”

The DOJ immediately mounted a nationwide attack on the new 1B1.13, arguing (among other things) that allowing the consideration of changes in the law that made the old sentences disparately long exceeded the Commission’s legal authority and supplanted Congress’s legislative role by permitting the revision of sentences that Congress did not wish to make retroactive.

This full-throated attack on the new 1B1.13, which Congress had six months to reject but chose not to, finally got to an appellate court.

careeroffender22062Joel Jean was locked up in 2009 for a cocaine distribution crime and a § 924(c) offense. He had three prior state drug convictions, and as a result, he was classified as a Guidelines “career offender,” which came with a recommended sentencing range of 352-425 months. The district court gave him a break, sentencing him to 292 months’ imprisonment.

In the years following Joel’s conviction, a series of Supreme Court and 5th Circuit cases redefined what could be considered a qualifying offense for the “career offender” enhancement. Those held that some of Joel’s Texas convictions no longer qualified to make him a “career offender.” As a result, “it is undisputed that if he were to be sentenced today, Joel would not be classified as a career offender under § 4B1.1.”

Joel filed a compassionate release motion, arguing that non-retroactive changes in the law would result in a substantially shorter sentence today if he were sentenced today and that his post-sentencing conduct and rehabilitation weighed in favor of compassionate release.

To be sure, Joel’s rehabilitation efforts – good conduct, successful programming, and comportment that resulted in laudatory letters from BOP staff – were exceptional. The district court was impressed, granting Joel’s motion and resentencing him to time served. The government, however, was dissatisfied with the decade-length pound of flesh it had gotten from Joel. It appealed, arguing that the district court could not consider non-retroactive changes in the law and that Joel should return to prison.

Last week, the 5th Circuit rejected the government’s position, holding that a sentencing court has the “discretion to hold that non-retroactive changes in the law, when combined with extraordinary rehabilitation, amount to extraordinary and compelling reasons warranting compassionate release.”

The Circuit ruled that “there is no textual basis [in statute] for creating a categorical bar against district courts considering non-retroactive changes in the law as one factor” nor did appellate precedent or 1B1.13 prohibit including such factors in a compassionate release calculus.

In Concepcion v. United States, the 5th observed, the Supreme Court held that

Federal courts historically have exercised this broad discretion to consider all relevant information at an initial sentencing hearing, consistent with their responsibility to sentence the whole person before them. That discretion also carries forward to later proceedings that may modify an original sentence. Such discretion is bounded only when Congress or the Constitution expressly limits the type of information a district court may consider in modifying a sentence… [T]he Concepcion Court concluded that nothing limits a district court’s discretion except when expressly set forth by Congress in a statute or by the Constitution. And in the case of the FSA, though the Court noted that “Congress is not shy about placing such limits where it deems them appropriate,” Congress had not expressly limited district courts to considering only certain factors there.

The Circuit noted that Congress “has never wholly excluded the consideration of any factors. Instead, it appropriately affords district courts the discretion to consider a combination of ‘any’ factors particular to the case at hand, limited only by the proscription that “rehabilitation alone was insufficient… [but] did not prohibit district courts from considering rehabilitation in conjunction with other factors.”

discretion220629

Congress adopted § 3582(c)(1)(A) due to the “need for a ‘safety valve’ with respect to situations in which a defendant’s circumstances had changed such that the length of continued incarceration no longer remained equitable,” the Court ruled: “It is within a district court’s sound discretion to hold that non-retroactive changes in the law, in conjunction with other factors such as extraordinary rehabilitation, sufficiently support a motion for compassionate release. To be clear, it is also within a district court’s sound discretion to hold, after fulsome review, that the same do not warrant compassionate release. For this court to hold otherwise would be to limit the discretion of the district courts, contrary to Supreme Court precedent and Congressional intent. We decline the United States’ invitation to impose such a limitation.”

United States v. Jean, Case No. 23-40463, 2024 U.S. App. LEXIS 17274 (5th Cir. July 15, 2024)

Concepcion v United States, 597 US 481 (2022)

– Thomas L. Root