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THERE’S REAL LIFE… AND THEN, THERE’S THE LAW

Richard McFee fired a gun into somebody’s house while the somebody was there. McFee, who unsurprisingly had a felony record, was subsequently convicted of being a felon in possession of a firearm under 18 U.S.C. Sec. 922(g)(1). Because the district court found he had three prior convictions for crimes that qualified as Armed Career Criminal Act (ACCA) predicates (either drug offenses or crimes of violence), it gave him 15 years in prison.

Rich appealed, arguing that one of his priors, a conviction under Minn. Stat. Sec. 609.713, subd. 1 for making terroristic threats, does not qualify as an ACCA predicate offense. Now, to the average Joe or Jane on the street, a felony for making terroristic threats sounds plenty violent, and they might reasonably think that a guy who was convicted of terroristic threats and then later shot up someone’s house shouldn’t be too surprised at a 15-year sentence. But the problem is that Joe and Jane are thinking about real life, and not the law.

Such is the state of the law – at least with respect to the federal definition of a crime of violence. It may have started with a guy named Curtis Darnell Johnson: in his 2009 case, the Supreme Court held that the “physical force” needed for a violent crime had to “violent force – i.e., force capable of causing physical pain or injury to another person.” That was followed by Descamps v. United States in 2013, where the Court held that the previous-used “modified categorical approach does not apply to statutes… that contain a single, indivisible set of elements.” Another Johnson came along two years later, one Samuel Johnson, in whose case the Supreme Court ruled the residual clause of the ACCA unconstitutional. And, finally, last summer, the Court ruled in Mathis v. United States that district courts must parse alternatively-phrased state statutes “to determine whether the listed items are elements or means.” If they find elements, the statute is not divisible, and the court may not inquire into the facts of the case. That threshold inquiry is limited to state court interpretations and a plain-text reading of the statute.

The decisions have been coming at a fairly rapid clip, not just from the Supreme Court but from courts of appeal as well. If a state statute sweeps more broadly than does the common law – (for example, state make the act or breaking into a car to rip off a radio “burglary,” but at common law, a burglary had to be of a structure) – then conviction under it will not necessarily count for ACCA purposes, regardless of the facts underlying a defendant’s conviction. Courts are applying Mathis to find that state burglaries are not burglaries for ACCA purposes and that state drug trafficking statutes are not drug trafficking for ACCA purposes. They’re applying Curtis Johnson along with Descamps and Mathis to conclude that strong-arm robberies are not violent. And Samuel Johnson is leading courts, for example, to find that manslaughter is not a violent crime.

It’s only going to get more widespread, too, if the Supreme Court rules in Beckles v. United States that the Samuel Johnson decision applies to Sentencing Guidelines “career offenders” and in Lynch v. Dimaya that the case applies to the term “crime of violence” used elsewhere in the criminal and immigration law codes. Those decisions will be handed down before this Supreme Court term expires in June 2017.

For now, it seems that nothing means what it used to mean. Just ask the 8th Circuit. Last week, it agreed with Richard McFee that making terroristic threats was not a violent crime under the ACCA.

Minnesota’s terroristic threats statute makes it a crime to “threaten, directly or indirectly, to commit any crime of violence with purpose to terrorize another… or in a reckless disregard of the risk of causing such terror.” Minn. Stat. Sec. 609.713, subd. 1. A “crime of violence” is defined by a separate statute, Sec. 609.1095, which sets out a list of crimes that qualify as “violent crime[s]” in Minnesota. Some of the crimes, the Court said, qualify as ACCA predicate offenses and some do not. Thus, “a Minnesota terroristic threats conviction thus is not an ACCA predicate offense under the categorical approach.”

However, if the statute is divisible, the Court said, it could look at Rich’s state court proceeding to see what it is that he really did. “A list of alternative elements in the offense is divisible,” the Court explained, “but a list of alternative means is not. The elements of a crime are what the jury must find beyond a reasonable doubt to convict the defendant; and at a plea hearing, they are what the defendant necessarily admits when he pleads guilty. The specific facts underlying a prior conviction, however, are mere real-world things – extraneous to the crime’s legal requirements.”

The 8th concluded that the Minnesota terroristic threats statute’s definition of ‘crime of violence’ is not divisible. “The fact that the definition of ‘crime of violence’ is contained in a separate section of the Minnesota criminal statutes thus provides textual support for the conclusion that the term ‘crime of violence’ is intended to be an element of the crime and that the list of violent crimes in Minn. Stat. Sec. 609.1095, subd. 1 contains alternative means by which that element may be committed.” Also, Rich’s indictment for the state case, the Court noted, charged him with ‘wrongfully and unlawfully directly or indirectly threaten[ing] to commit a crime of violence, with purpose to cause, or in reckless disregard of the risk causing terror in another.’ “Since the charging document used the single umbrella term of ‘crime of violence’ without specifying the particular crime threatened, the record suggests that the prosecution was only required to prove that McFee threatened a “crime of violence” but not the particular crime he threatened.”

The Circuit concluded that the phrase “to commit any crime of violence” is an element of the Minnesota terroristic threats statute, Minn. Stat. Sec. 609.713, subd. 1, and that the separate definition of ‘crime of violence’ in Sec. 609.1095, subd. l(d), lists means by which that element is met. The element ‘to commit any crime of violence’ is not divisible. Because Minnesota’s definition of ‘crime of violence’” is broader than the ACCA requirement that a prior conviction have ‘as an element the use, attempted use, or threatened use of physical force against the person of another,” the prior conviction cannot count for an ACCA enhancement.

United States v. McFee, Case No. 16-1304 (8th Cir.  Nov. 17, 2016)

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IT’S THE END OF THE WORLD AS WE KNOW IT

Aides to legislators supporting Congress’ bipartisan Sentencing Reform and Corrections Act now concede what we suspected was true all along: any chance for passage died with the election of Donald Trump, who ran an outspoken campaign on restoring law and order.

“It’s dead,” said one Senate Republican aide close to the criminal justice reform effort. “It’s not something Trump wants and leadership has no incentive to anger him over it.”

A senior Democratic aide in the Senate said criminal justice reform is “totally dead,” at least for the lame duck period. “Beyond that I don’t really know.”

A couple of reformers remain optimistic that reform efforts will continue under a Trump administration, such as Carter Burwell, deputy chief counsel to Sen. John Cornyn (R-Texas), and Roscoe Jones, senior counsel to Sen. Cory Booker (D-New Jersey).

At a New York City Bar Association conference last week, Jones said reform efforts still enjoy support from bipartisan Congressional leaders and the public. Burwell said justice reform remains a matter of concern to religious and faith communities, whose institutions often witness first-hand the effects of harsh sentences on families. “It’s a civil rights issue, he said, “one we all care about.”

However, former U.S. District Judge John Gleeson (EDNY), now in private practice, told the City Bar panel that prospects for sentencing reform have become “bleak.”

“I think the reform movement should forget about getting anything meaningful done in Congress for the next four years,” Gleeson said.

The former judge has a point. Prospects for resurrecting sentencing reform in the next Congress – which begins in January 2017 – darkened considerably last Friday with Trump’s nomination of Sen. Jeffrey Sessions (R-Alabama) as the next Attorney General. A former Alabama U.S. attorney and state attorney general who was elected to the Senate in 1996, Sessions is an old-fashioned drug warrior.

Although he supported the Fair Sentencing Act in 2010, which eased sentencing disparities between crack and cocaine offenders, Sessions has been among the handful of senators who stopped sentencing reform from coming to a Senate vote. He said it would send “violent felons” to the street. The Attorney General’s Office of Legislative Affairs has significant influence on criminal justice measures in Congress, and DOJ has a seat on the U.S. Sentencing Commission.  As for commutations, Sessions has said that Obama’s clemency initiative will “inflict long-term harm on the nation.”

With a Republican Congress and a President Trump, expect no meaningful legislative reform to sentencing in the next four years.

The Marshall Report, A Primer on Sen. Jeff Sessions, Trump’s Pick for Attorney General (Nov. 18, 2016)

Buzzfeed News, The Election Might Have Killed Criminal Justice Reform (Nov. 15, 2016)

New York Law Journal, Advocates Remain Optimistic About Criminal Justice Reform (Nov. 18, 2018)

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SENSE OF DESPERATION, AND CALLS FOR ‘HAIL MARY’ ON CLEMENCY

Following President-elect Donald Trump’s “law and order” campaign, there doesn’t seem to be much hope for federal criminal justice reform next year or beyond. But although experts predict that Trump can undo much of what President Barack Obama has put in place with executive orders, Obama still can take one action that his successor cannot reverse.

A coalition of prisoners, family members, and advocates have issued a renewed call to Obama to quicken the pace of the clemency application process, out of fear that Trump, who campaigned as a self-described “law and order” candidate, will refuse to pick up where his predecessor left off.

Last Monday, Cut50, a group dedicated to reducing the US prison population by half, brought more than 70 clemency recipients and prisoners’ family members to the White House for a two-day advocacy effort. The march and candlelight vigil, pitted in the news cycle against bigger anti-Trump demonstrations in other cites, did not garner much coverage.

US News reported this week that during the “midnight period” between the election and the January 20 inauguration, Obama must accelerate his pattern of commuting the sentences of federal prisoners penalized under mandatory minimum penalties that have been changed but not made retroactive. “These are men and women serving disproportionately long prison sentences that burden American taxpayers and overcrowd our already underfunded federal prison system,” the magazine said. “It’s the right thing to do – morally and justly – for the country.”

Only about 2,000 of the roughly 200,000 total federal inmates qualify for relief under the strict criteria outlined by the Obama administration. They must be serving time for nonviolent offenses, have already served 10 years of their sentence, and have exhausted direct appeal options.

About 46% of federal prisoners are serving time for drug-related crimes. Many were sentenced under mandatory minimums established by the Anti Drug Abuse Act of 1988 that mandated a disproportionate penalty for crack. Someone caught with one gram of crack went to prison for the same amount of time as someone caught with 100 grams of powder cocaine. These sentences disproportionately penalized minorities, and contributed to an explosion in America’s prison population.

Inmates are “scared — they’re hoping to beat the clock,” a sentencing reform advocate told Business Insider last week. “One client told me that with each passing day he feels his heart getting tighter and tighter, because he just doesn’t know what’s going to happen. There’s just nothing more urgent than freedom.”

There is one potential solution Obama could turn to before he leaves office — and it has a precedent, according to Ames Grawert, a counsel in the Brennan Center’s Justice Program.

The Obama administration could identify all federal prisoners whose sentences would be lessened if the Fair Sentencing Act were applied retroactively and expedite their clemency petitions.

Barring exceptional circumstances, Obama’s Department of Justice could then recommend reduced sentences for every prisoner who qualifies — an estimated 4,000 inmates.

A similar effort was undertaken in 1974, when President Gerald Ford established a “clemency board” to review conditional amnesty applications for prisoners who were convicted of draft evasion during the Vietnam War.

“Commuting these outdated, unfairly harsh federal drug sentences isn’t something that President Obama should leave to the next administration,” Grawert told Business Insider in an email Monday.

“[I]f President Obama believes these sentences are unjust, it is his constitutional responsibility to fix them,” Rachel Barkow, a member of the United States Sentencing Commission and NYU law professor, told BuzzFeed News this week.

“President Obama has indicated his desire to achieve justice in these cases through clemency and has already given relief in hundreds of cases,” Barkow explained. “He should be applauded for these efforts. But for every case where clemency has been granted, there is another person still waiting.”

“A lot of guys said they don’t want to give up, but if Obama doesn’t grant a big package [of clemencies] in the next month or so, the probability is close to none,” one inmate said.

Business Insider, Trump’s election is bringing a new urgency to the thousands of inmates who have petitioned Obama for clemency (November 15, 2016)

Buzzfeed, Advocates Look To Obama For “Unprecedented” Action On Federal Prison Sentences (Nov. 12, 2016)

US News, Clemency is now critical (Nov. 15, 2016)

Vice News, Fear Among Inmates (Nov. 10, 2016)

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BOP HALFWAY HOUSE PROGRAM FOUND TO BE DEFICIENT

Recall those movies that start with the protagonist walking out of the prison doors wearing a cheap suit and carrying a cardboard suitcase? It doesn’t happen like that in the federal system anymore – or does it?

Congress has mandated that the Federal Bureau of Prisons (BOP) provide a variety of reentry programming to help inmates successfully transition back into society. 18 U.S.C. Sec. 3624 grants the BOP authority to place inmates in residential reentry centers (RRCs) – also known as halfway houses – or in home confinement while serving the final portion of their sentences. Unsurprisingly, to many federal inmates, pursuit of the maximum amount of halfway house/home confinement time is a consuming activity while in prison.

RRCs are intended to provide a supervised environment that is intended to help inmates find employment and housing, complete programs like the BOP’s residential drug abuse program (called “RDAP”), participate in counseling, and re-establish ties to family. The RRCs are usually run by nonprofit organizations (the Salvation Army, Volunteers of America, and various ministries, for example). Currently, the BOP uses 181 RRCs operated by 103 different contractors.

Home confinement is the pot of gold, used for inmates whom the BOP believes do not need the structure provided by RRCs. Inmates in home confinement are electronically monitored, and are required to remain at home when not working or participating in release programing and other approved activities.

Under the Second Chance Act of 2007, all federal inmates are eligible for RRC and home confinement placement. But not all inmates get the programs. Rather, placement decisions are made initially by an inmate’s case manager, a BOP employee assigned to oversee inmate progress and planning. A case manager generally has from 100 to 200 inmates on his or her caseload, and – while guided by BOP policy – has great latitude in the decisions he or she makes about the inmates the case manager oversees.

The greatest single decision made by BOP case managers is the duration of RRC assignments for inmates. The law cabins their discretion only on the high end: no one may placed in RRCs for up to 12 months, but may only spend the lesser of 6 months or 10% of his or her sentence in home confinement. But nothing acts as a hard stop on the other end.

A report issued by the Dept. of Justice Office of the Inspector General earlier this week made that point. Its numbers are sobering, but will come as no surprise to federal inmates.

First, out of 94,000 federal inmates released during the study period (Oct. 2013 through April 2016), only 75% were sent to an RRC and a scant 4% went to home confinement. One out of five inmates went directly to the street.

The OIG found that, contrary to the BOP’s policy, guidance, and relevant research, the agency’s RRC and home confinement placement decisions are not based on inmate risk for recidivism or need for transitional services. Rather, BOP is “placing the great majority of eligible inmates into RRCs regardless of inmate risk for recidivism or need for transitional services, unless the inmate is deemed not suitable for such placement because the inmate poses a significant threat to the community. As a result, low-risk, low-need inmates are far more likely to be placed in RRCs than high-risk, high-need inmates.”

The numbers tell the story. During the study period, receive placed in RRC/home confinement placement. But only 58% of high security level inmates got such placement, while 42% of high security prisoners were released into the community directly from a BOP institution. While the OIG Report conceded that this “may be a result of the fact that many of the high security inmates were considered a public safety risk.,” still, the Report suggested that because, on the average, the high-security inmates were within four months of release anyway, there didn’t seem to be much justification for not sending them to a halfway house, where they (and the community) might benefit from receiving reentry programming.

The study also found that the BOP is underutilizing home confinement placement as an alternative to RRCs for low-risk, low-need inmates back into society. Even with minimum and low security inmates, the BOP placed only 6% directly into home confinement “despite BOP policy and guidance stating that direct home confinement placement is the preferred placement for low-risk, low-need inmates.” This makes no sense financially: the average cost to incarcerate a federal inmate is $88.00 a day. The cost of an RRC is about $71.00 a day. The costs of home confinement costs run about $8.00 per day.

Of even more concern, the Report noted, the BOP’s own research indicates that “low-risk inmates do not benefit from and may in fact be harmed by RRC placement because, among other things, of their exposure to high-risk offenders in those facilities. Moreover, the underutilization of direct home confinement for low-risk, low need inmates results in fewer RRC resources being available for high-risk, high-need inmates since the RRC inmate population is already at or in excess of BOP’s contracted capacity. In addition, this practice may also further strain high security BOP institutions that are already well above capacity.”

During the study period, RRC population remained at about 101% of contracted capacity, while the home confinement population averaged nearly 159% of contracted monitoring capacity, despite BOP’s apparent underutilization of the home confinement alternative. The home confinement capacity remained high because the BOP pursues a policy of “aggressively… transitioning inmates from RRCs to home confinement as soon as possible in an effort to increase RRC capacity. This practice, the Report said, “reduces the capacity for direct home confinement placements and, additionally, may result in inmates being transitioned from RRCs to home confinement too early, as evidenced by the fact that 17% of inmates were placed back into RRCs for violating home confinement program rules.”

The study found that the BOP’s RRC/home confinement targets – 85% from minimum, 75% from low, 70% from medium, and 65% from high security level institutions – seem to be snatched out of thin air, with no regard for the transitional needs of the inmates. In fact, the Report concluded, “issues we identified with BOP’s current placement practices may be driven, in part, by its RRC and home confinement placement targets. “

The bottom line? The BOP treats pre-release inmates as figures on a ledger, not as people with individual needs and abilities. The inmates who arguably need the most reentry training – guys who have done a lot of hard time in high-security settings – are the ones who get the least, due in part to BOP fear that they’ll misbehave which still in nominal BOP custody. The people getting the most halfway house time are the people who need it the least, minimum-security people.

U.S. Dept. of Justice Office of Inspector General, Audit of the Federal Bureau of Prisons’ Management of Inmate Placements in Residential Reentry Centers and Home Confinement (Audit Report 17-01, Nov. 15, 2016)

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OVER-THINKING THE PROBLEM

Sometimes, a defense attorney’s best sentencing work is done before a plea deal is reached. By convincing the government to drop some counts and let the defendant plead to others, the Sentencing Guidelines can be leveraged – or played, depending on your point of view – to provide a sentencing outcome beneficial to a defendant.

A simple, elegant solution – that’s what Wei Lin’s lawyer thought he had. Wei was charged with conspiracy to commit sex trafficking in violation of 18 U.S.C. § 1594(c), and several counts of sex trafficking in violation of 18 U.S.C. § 1591(a). Wei’s attorney engineered a deal in which Wei pled guilty to the conspiracy count, which carried no mandatory minimum sentence, and the government dropped the substantive sex trafficking offenses, which carried 15-year mandatory minimums. Wei and his lawyer believed that this plea would give him a Guidelines base offense level of 14, instead of the 34 carried by the substantive counts.

Chef Tell would have approved: Very simple, very easy.

Well, maybe so, at least until the district court decided to mangle the application of the Guidelines. Notwithstanding the plain language of U.S.S.G. § 2G1.1(a)(1), the sentencing judge held that the base offense level for Wei’s crime would be remain at 34, and sentenced him to 235 months in prison.

Wei appealed, and on Monday, the 9th Circuit reversed his sentence.

U.S.S.G. § 2X1.1(a) provides that the base offense level for a conspiracy to commit sex trafficking is the same as the base offense level for the underlying substantive crime. The base offense level for sex trafficking is 34 “if the offense of conviction is 18 U.S.C. § 1591(b)(1).” U.S.S.G. § 2G1.1(a)(1). Otherwise, it’s 14. U.S.S.G. § 2G1.1(a)(2).

Sex trafficking under 18 U.S.C. § 1591(b)(1) is a lot like drug distribution under 21 U.S.C. Sec 841 – there’s only one crime, but many different penalties, depending on the facts of the case. For instance, if the sex crime includes fraud or coercion, a 15-year mandatory minimum applies. If the crime is merely conspiracy, no mandatory minimum applies. 18 U.S.C. § 1594(c). Wei’s underlying substantive crime involved fraud or coercion, but those counts were dropped.

Wei’s plea agreement and judgment said he was convicted of an 18 U.S.C. § 1594(c) conspiracy only. Nevertheless, the district court found that, for purposes of determining his base offense level, Win’s underlying offense of conviction was 18 U.S.C. § 1591(b)(1), because the conduct involved in the substantive offense would have been punished under § 1591(b)(1) if Wei had been convicted of the substantive offense. The 9th Circuit said that was right, but hardly relevant.

The Court of Appeals said the trial court had over-thought the issue. “The most straightforward interpretation of U.S.S.G. § 2G1.1(a)(1) is that a base offense level of 34 applies only when the defendant is actually convicted of an offense subject to the punishment provided in 18 U.S.C. § 1591(b)(1).” The judgment said Wei was convicted of a 1594(c) conspiracy. The Court observed that “it seems tortured to say that, when we know what federal statutes the defendant was convicted of, and we are asked to determine if the defendant’s offense of conviction was a specific federal statute, we should break those statutes down into their offense conduct and then compare that conduct, as opposed to simply comparing the federal statutes that we have on both sides of the equation.”

The Circuit noted that the Sentencing Commission intended § 2G1.1(a)(1) to apply only when the defendant received a 15-year mandatory minimum sentence, because the higher base offense level in § 2G1.1(a)(1) was created in direct response to Congress’s creation of the 15-year mandatory minimum in the Adam Walsh Act. The Court said that “common sense, the plain language of the guidelines, and the Sentencing Commission’s commentary, all show that U.S.S.G. § 2G1.1(a)(1) only applies to defendants who are subject to a 15-year mandatory minimum sentence under 18 U.S.C. § 1591(b)(1).”

Wei was not, and his 235-month sentence thus had to be thrown out. His lawyer’s plea strategy was vindicated.

United States v. Lin, Case No. 15-10152 (9th Cir.  Nov. 14, 2016)

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YOU’RE TALKING CRAZY

The procedural rules governing federal court habeas corpus motions under 28 U.S.C. 2255 (for federal convictions) and 28 U.S.C. 2254 (for state convictions) are often the same.

One such proscription is the one-bite rule: every prisoner gets one bite of the apple, one chance to bring a 2254 or 2255 motion. Any additional filing – called a “second-and-successive” motion – brought after the first petition is disposed of on the merits is subject to the rule in 28 U.S.C. 2244 that the inmate first get permission from the Court of Appeals, approval which is given only in very limited circumstances.

Another is the requirement that any appeal from a 2254 or 2255 petition that has been denied can only be brought if the prisoner has obtained a certificate of appealability (“COA”). A COA is a finding by a judge – either the district court judge or an appellate judge – that the issue to be appealed is debatable by “jurists of reason.”

Jesus H. Garcia is doing state time in New York for burglary and sexual abuse. In 2013, Jesus – a guy whose reach obviously exceeds his grasp – has filed a 28 U.S.C. 2254 motion in federal court challenging his convictions. The motion Each one of them was dismissed for being incomprehensible. Last week, the 2nd Circuit considered whether a petition that is thrown out because it’s impossible to understand is decided “on the merits.”

When Jesus filed his legal babble in 2013, the district court invited him to amend, explaining that his original 2254 petition was “indecipherable.” Usually, when the judge invites a litigant to amend, there’s a pretty broad hint hidden in the solicitation that the pleading as filed is not going to go anywhere. Jesus wasn’t a guy who would take a hint, however. He did not amend, and predictably enough, his 2254 petition was dismissed as incomprehensible, and a COA was denied.

Last week, the 2nd Circuit declared Jesus’ 2254 efforts as one and done. The Court said, “We have never decided whether an order dismissing a Sec. 2254 petition as incomprehensible is “on the merits” for purposes of the successive requirements. However, in the ordinary civil context, an incomprehensible complaint fails to state a claim, and a dismissal for failure to state a claim operates as a final judgment on the merits… It should follow that an order dismissing a Sec. 2254 petition as incomprehensible, once the matter is fully adjudicated, should likewise operate as a “final judgment on the merits,” and should therefore trigger the rules governing successive 2254 petitions.”

At the same time, the Circuit warned, however, a district court should not dismiss a pro se complaint “without granting leave to amend at least once, unless amendment would be futile. Our reluctance to dismiss these complaints at such an early stage of the proceedings stems in part from the limited legal knowledge and resources available to pro se plaintiffs, which may hamper their ability to articulate potentially valid claims in legally cognizable language. These concerns are heightened in the Sec. 2254 context, because prisoners ordinarily lack legal knowledge and resources. Moreover, the issue at stake —the legality of a prisoner’s confinement — is of fundamental importance.”

The Court of Appeals concluded that “an order denying a Sec. 2254 petition as incomprehensible is “on the merits” for the purposes of the successive requirements if the petitioner was on notice that the district court considered the Sec. 2254 petition to be incomprehensible, and had a reasonable opportunity to cure that defect.”

No doubt the same procedural rule would hold true for a 2255 motion.

Garcia v. Superintendent of Great Meadow Correctional Facility, Case No. 16-2863 (2nd Cir. Nov. 10, 2016)

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 LET MY PEOPLE GO

Jim McCandless has a pending 2255 motion arguing that his Guidelines career- offender enhancement is unconstitutionally vague in light of Johnson v. United States. Because Johnson does not directly address the Guidelines’ career-offender provision – but Beckles v. United States, now pending in front of the Supreme Court, does – Jim’s district court has wisely stayed his habeas petition until Beckles is decided.

Of course, that doesn’t help Jim, who is doing 145 months. If he wins his 2255, however, he says he’s already done more than what his new Guidelines would be. So he asked his district court to grant him release on bond until the Beckles decision settles whether Johnson applies to sentences imposed under the Guidelines’ career-offender provision. The district court refused him, so Jim appealed.

Last Thursday, the 9th Circuit told Jim he’d be eating chow hall turkey this Thanksgiving after all.

Jim’s first problem is that there is no right to appeal denial of habeas corpus bond. Such an attempt is considered to be an interlocutory appeal, which is usually prohibited under the collateral order doctrine. The Circuit decided that it would construe Jim’s appeal as a petition for a writ of mandamus. That got Jim through the door, but winning a mandamus action is a tall order.

To win a writ of mandamus, Jim has to show the district court’s order was clearly erroneous as a matter of law. The appellate court said Jim couldn’t do it. First, the Circuit has not yet “decided whether district courts have the authority to grant bail pending resolution of a habeas petition, but we need not resolve that question today.” That’s because if district courts have that authority, it only can be used in “extraordinary cases involving special circumstances or a high probability of success.”

The Circuit admitted that the Beckles decision “will likely resolve—one way or the other—the merits of the claim” Jim has raised, although the Supreme Court “may not render a decision in Beckles for at least several more months.” To demonstrate a high probability of success, Jim had to show the Supreme Court “is likely to hold in Beckles that Johnson invalidates the residual clause of the Sentencing Guidelines’ career-offender provision and that such a rule applies retroactively to cases on collateral review. There are substantial arguments on both sides of the case, and it is far from clear how the Supreme Court will rule. That alone precludes us from holding that McCandless has shown a high probability of success.”

The Court of Appeals also said Jim hadn’t shown special circumstances. Jim said if Beckles goes his way, he will have over-served his lawful sentence. But that’s not necessarily so. Even if Beckles is resolved in Jim’s favor, he “would not necessarily be entitled to immediate release.” Instead, Jim would only “be entitled to be resentenced under an advisory sentencing range calculated without the career-offender enhancement… To establish that he will have over-served his lawful sentence if he remains incarcerated, Jim “must show that he will likely receive a sentence of less than the time he has served months in the event that Beckles is resolved in his favor.”

If Jim is resentenced without the  enhancement, the Court said, his advisory Sentencing Guidelines range will be 130-162 months. Jim got a downward departure from his original sentence, but even though a comparable departure from the bottom of his new Guidelines range would put him below 108 months, the Circuit said Jim’s “contention that he would receive a post-Beckles sentence of less than 108 months is entirely speculative… Even with a revised advisory sentencing range of 130 to 162 months, there is no way of predicting whether the district court would grant a downward departure below that range or by how much.”

Thus, the Court said, Jim had not “shown that he has a high probability of success on the merits of his habeas petition or that he will likely end up over-serving his constitutionally permissible sentence if he is denied bail.”

United States v. McCandless, Case No. 16-15411 (9th Circuit, Nov. 10, 2016)

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 TRUMP CAN’T UNRING THE CLEMENCY BELL

There is a lot a new President Trump can do on the afternoon of January 20, 2017, to unwind President Obama’s legacy. Because Obama tended, in the last years of his presidency, to rely on governance by executive decree rather than bipartisan legislating, Trump can cancel with a stroke of the same pen that Obama used to issue his diktats.

For example, Trump may revoke limits on keeping juveniles in federal solitary confinement. He may repeal Obama’s order to “ban the box” on federal employment applications that identifies those with criminal records, a barrier for former offenders to re-enter the work force. Trump’s attorney general (Rudy Giuliani has been mentioned as a contender) could reverse the Obama-era instruction to prosecutors to charge fewer low-level drug crimes. Yesterday, share prices for CCA and Geo Group – two private prison operators – jumped 43% and 24% respectively on hopes a Trump Department of Justice would reverse plans to stop using for-profit prisons.

The Marshall Project darkly predicted yesterday that “Trump’s victory may be fatal to the unusually bipartisan campaign to reduce prison sentences, invest in rehabilitation, and otherwise render the federal justice system more humane and effective. The Republican Party platform adopted at the July convention nods to red states that have reduced prison populations and calls for “mens rea” legislation, which would oblige prosecutors to prove a defendant intended to break the law.”

But, while the focus yesterday shifted from Obama’s continuing clemency plans for drug offenders to whether he might pardon Secretary Clinton – speculation fueled by the press rather than by either the Trump or Obama camps – the plain fact is that the one executive action that a President Trump cannot undo is Obama’s use of his pardon or clemency power.

The press Obama has gotten thus far for his clemency program has been generally favorable, simply because generalized grumping that he is releasing hardened criminals into America’s communities is not as engaging an argument as are the many individualized stories of people who have served lengthy sentences for nonviolent offenses committed as indiscreet youths. Reason.com, a libertarian publication that is hardly a friend to Obama’s policies, has written glowingly about commutation, noting this week in a piece about a recent clemency grant that Obama had corrected the injustice that “the Fair Sentencing Act did not apply retroactively, meaning that thousands of crack offenders continue to serve sentences that pretty much everyone now agrees are too long.”

We already believed that Obama would continue his record-setting commutation program between now and the end of his term. With Trump’s election, the media are widely speculating that Obama has lost any chance to secure a legacy that cannot be undone by a Trump presidency and a Republican congress. CNN today called Tuesday’s results Obama’s “nightmare.” That being the case, the President perhaps recognizes that there is no “down side” to accelerating commutations over the coming weeks. Indeed, commutations are about all he can still do that will remain bulletproof when a Trump Administration takes over.  Clemency may be the most melodious swan song the incumbent can hope for.

To be sure, the election has torpedoed Obama’s attempts to reshape the federal courts. Currently, there are 52 Obama nominees to the federal bench waiting for action by the Senate — some have waited for nearly two years — and the Republican sweep last Tuesday spells the end for their hopes of making it onto the bench.

Of course, Obama Supreme Court pick Merrick Garland, whose nomination to take the seat of the late Justice Antonin Scalia has been held by the Senate since last March, can forget moving up the hill from his current office at the U.S. Court of Appeals for the D.C. Circuit. But those other lower court nominees are unlikely to be confirmed, let alone get a hearing, before Obama leaves office.

“Traditionally most Democrats and Republicans have always agreed that the next president should have the opportunity to fill those seats,” Vincent Eng of The VENG Group, who advises nominees, told the New York Law Journal yesterday. There are 95 vacant seats on the federal courts: 13 on the appeals courts, 81 on the district courts, and one on the Supreme Court. Of those, 38 are considered “emergencies” by the judiciary, given the size of their caseloads.

Finally (and curiously enough), the drumbeat may be resuming for Congressional action during the lame-duck session starting next week, on the Sentencing Reform and Corrections Act of 2015. To be sure, what seemed like bipartisan enthusiasm for sentencing reform fizzled this year in the face of pre-election anxieties about looking soft on crime. But conservative circles, including The Washington Examiner, are suggesting that “with the end of a contentious election and the lame-duck session just a week away, there remains an opportunity for the 114th Congress to leave a meaningful mark on history, specifically by passing significant criminal-justice reform.”

The Examiner argued that “Congress has the opportunity to make modest reforms that have been proven to work, that uphold American traditions and values and that are supported by all corners of the conservative movement. It’s time for the 114th Congress to mark its legacy, reassert its equal power to the presidency and to make Congress great, and maybe even relevant, again.”

Law and order trumps reform, The Marshall Project (Nov. 9, 2016)

Commuted Sentence Shows Injustice of Crack Penalties and ‘Three Strikes’ Provision, Reason.com (Nov. 7, 2016)

Trump Victory Is Bad News for Obama Court Nominees, New York Law Journal, (Nov. 10, 2016)

Make Congress great (or at least relevant) again with criminal justice reform, Washington Examiner (Nov. 9, 2016)

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HOP ON THE BUS, GUS

John George, Jr., operated a bus system on behalf of Southeast Regional Transit Authority (SRTA), a government-funded regional transit authority. SRTA owns the buses, facilities, and equipment, but it doesn’t operate them. Instead, it contracted with private entities to do that. John’s was a company called Union Street Bus Company (USBC).

John bears some passing resemblance to Bill Clinton. He started out in government, and then left his position as a Massachusetts state representative. He then bought USBC. At the time of the purchase, USBC had a contract to operate the SRTA bus system through 1995. After John took over, USBC’s contract was renewed several times, the last term being 2006 through 2011.

John maneuvered his way into the transit agreement through collusion with a state official who John had hand-picked to replace himself. His crony manipulated the bidding process and when John lost the crucial support of the City of Fall River –because he refused to hire one of the mayor’s cronies – his state official buddy ran interference for him.

Under USBC’s agreement, all of its expenses were paid by SRTA with public funds: the Agreement bound SRTA to pay USBC the difference between USBC’s operating expenses and USBC’s operating income. SRTA also paid USBC a management fee of anywhere between $200,000 and $250,000 a year (from which John paid himself a salary).

John had a sweet deal, but he couldn’t leave well enough alone. He hired his girlfriend to work at the bus line as an administrative assistant, with her $100,000 a year salary paid by SRTA. Instead of keeping regular office hours, she showed up “once or twice a week, if at all.” in the summertime. But she did work – at John’s farm, selling produce for him. John also had a long-time friend on the USBC payroll to the tune of $90,000 a year, who would routinely abandon his bus company shift shortly after arriving, and would drive a company car to work at the farm and do chores for John. Finally, John would use the USBC mechanic to do repairs at the farm, even pulling him away from urgent bus repair work for far chore.

In early 2006, USBC paid $10,000 in SRTA-reimbursable funds to a construction company, ostensibly for terminal repairs. But the construction company never showed for work, but did remodel John’s kitchen. John used USBC equipment to plow out his driveway and fix his air conditioner. He even installed a video surveillance system paid for with taxpayer money at the farm.

Unfortunately for John, matters began to unravel when his state-official buddy became head of SRTA and “got religion.” He began pushing back against John’s excesses, and finally solicited other companies to bid on the SRTA contract. John responded by getting his former friend fired, but the die was cast. John was underbid, and the contract went to another company in 2011.

The new contractor reported the many irregularities it found, John was investigated, and an indictment followed. After a jury trial, he was convicted and got 60 months.

Monday, the 1st Circuit affirmed the judgment and sentence. Of special interest was the 2-level enhancement John got under U.S.S.G. §3B1.3 for abuse of position of trust.

To justify this enhancement, a sentencing court must find that the defendant held a position of public or private trust and that he used the position to facilitate or conceal his offense. The district court found that, on this record, John – as president of a government contractor – occupied a position of trust with respect to SRTA.

The Circuit admitted it had never considered whether – or under what circumstances – a “high-ranking employee of a government contractor can be said to occupy a position of trust vis-a-vis a defrauded government entity.” However, despite the fact that legally, the contractor does not occupy a fiduciary duty with respect to the government agency, “individuals controlling government contractors sometimes grow so cozy with the contracting agency that they are allowed to exercise substantial discretionary authority over government funds without any semblance of meaningful oversight.”

The Court said that to warrant the application of the position-of-trust enhancement in such circumstances, a defendant first must have both substantial control and significant discretion over the affairs of the government contractor. A district court must ask “whether the victim reposed additional trust in the defendant by ceding its ability to confirm compliance with the contract, thus relying more heavily on the honesty of the defendant than an ordinary party to a contract would.” The Court said the record here showed “beyond hope of contradiction” that John dominated USBC, and that SRTA reposed special trust in him.

Thanks to John’s political connections, “USBC’s performance was subjected to almost no oversight by SRTA.” John had exclusive and sole responsibility for USBC employees, and for USBC’s performance of a cost-plus contract “in circumstances in which the contracting government agency had no idea which employee was doing what work.” SRTA’s lax financial monitoring let John pay USBC employees with public funds to work on his private business, and to ignore SRTA auditors when they questioned his expenses. His former friend who ran SRTA admitted that when John gave unsatisfactory explanations for questionable expenses, SRTA “would do nothing because of my association and relationship with” him.

Thus, the Circuit effectively held, even when no legal position of trust is created, the practicalities of the situation – and the foolishness of the victim – can create a position of trust. Hard cases often make bad law, and this holding makes the “position of trust” enhancement a slippery concept indeed. Indeed, it seems that the more negligent the victim in protecting himself or herself, the more the perp will be punished.

United States v. George, Case No. 15-1892 (1st Cir.,  November 7, 2016)

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ANDY WOULD GIVE YOU 3-5 ODDS HE’LL GET A BELOW-GUIDELINES SENTENCE

The press is having plenty of fun at the expense of Princeton and Harvard Law grad Andrew W. W. Caspersen, the born-with-a-silver-spoon white collar fraudster who abused friends and family in a $40 million wire-fraud scheme that burned up most of that money in the options market. Last Friday, in the Southern District of New York, Andy got 48 months for his crime.

What made this rather pedestrian sentencing interesting – beyond the fact that the defendant was widely described as a “scion” of a powerful, rich and well-connected family – was his argument that his sentence should fall well below the 151-188 months called for by the Guidelines. Andy argued that his gambling addiction was responsible for behavior that was at best irrational.

Schumpeter observed a week ago in the Economist that white-collar criminals are everyone’s favorite piñata:

One thing right-wing populists and left-wing progressives can agree on is that society is too soft on white-collar crime. Conservatives abandon their admiration for business when it comes to ‘crooked bankers’. Left-wingers forget their qualms if locking up “corporate evil-doers”. Hillary Clinton’s line that “there should be no bank too big to fail but no individual too big to jail” would go down equally well at a Donald Trump rally.

Between 1996 and 2011 the mean fraud sentence in federal courts nearly doubled, from just over a year to almost two years, as the average sentence for all federal crimes dropped from 50 months to 43. This is primarily because the enhancements for amount of loss have skyrocketed since the 1990s: in Andy’s case, § 2B1.1 of the Guidelines called for a base offense level of 7, with an add-on of 22 for a loss between $25 and $60 million. Thus, he started with a level of 29, before the inevitable other enhancements under 2B1.1 (such as for using “sophisticated means”) and Chapter 3 (for special skills) get rolled in. Even a Criminal History I defendant finds himself or herself looking at pretty significant time.

At Andy’s sentencing, his lawyers focused on the potential mitigating effects of a pathological gambling problem. Their client had rolled sevens to be assigned District Judge Jed Rakoff, described by USA Today as “a renowned legal independent and author of a recent essay that almost seemed to foreshadow the proceeding.” In a recent article Judge Rakoff penned for The New York Review of Books about neuroscience and the law, he said, “Distinctions of intent frequently determine, as a matter of law, the difference between going to prison and going free.”

Judge Rakoff’s essay signaled he might consider a scientific explanation that might help explain the crimes. “Cognitive neuroscience… holds out the promise of helping us to perceive, decide, and explain how intentions are arrived at and carried out,” the judge wrote. Andy could hardly have had a more thoughtful or receptive audience for his argument.

Judge Rakoff agreed that the crimes of the former investment advisor, while “egregious,” warranted far less than the sentencing guidelines set and the probation department advised. “In addition to his very real gambling disorder, which I’m very seriously convinced affected his rational control and decision-making,” Rakoff said, “there is also the fact that no purpose will be served by lettinghim rot in prison for years on end.”

Andy’s lawyers had an expert on compulsive gambling disorder, Dr. Marc Potenza, testify. Dr. Potenza discussed the analysis and treatment of gambling problems, the degree of control a gambler has over his actions and the chances of recidivism. The Assistant U.S. Attorney, of course, fought back at the suggestion that Andy was in any way less than fully responsible for his actions. She reminded the court that beginning in 2014, Andy used his position at the investment firm Park Hill Group to steal $38.5 million by promising friends and family members 15 to 20% returns on loans to private equity firms.

“I’m not asking the court to ignore the mental health issues the defendant has,” the AUSA argued, “but they need to be seen in the entire context.” She noted that Andy stole two identities, and caused a lasting fear of reputational harm for some of his victims who were in the investment business. He used some of the money he collected from people to pay off a loan on a $2 million apartment and to buy a $3 million home in Bronxville.

Andy started gambling on sports as a Princeton undergraduate, and continued at Harvard Law School. From sports, he moved to gambling on tech socks. At Park Hill Group, he traded relentlessly the second he received any funds, usually betting on a drop on the Standard & Poor’s 500 Exchange Traded Fund. When he lost out on the bet, he started collecting money from family and friends, and hiding his scheme by incorporating fake entities with names that were the same as, or nearly the same as, known, legitimate funds.

Andy’s plea agreement called for the 151-188 month sentencing range, but Judge Rakoff, a long-time Guidelines critic, denounced the range as “absurd.” Referring to the likelihood that some might question the lenient sentence, the Judge said outsiders didn’t know all the facts of the case.

Thus far, Judge Rakoff has not issued a written sentencing opinion, something that Ohio State University law professor Doug Berman has called on him to do. In his Sentencing Law and Policy blog, Prof. Berman said, “For consistent and cogent sentencing even after Booker made the guidelines advisory, it is critical in my view not only for federal district judges to consider thoughtfully all the 18 U.S.C. 3553(a) sentencing factors, but also for them to produce written opinions to explain how they weighed those factors in high-profile cases in which they significantly deviate from the ranges suggested by the guidelines.”

USA Today, Wall Street fraud sentencing prompts tears and debate (Nov. 6, 2016)

Schumpeter, Jail Bait – The lock-’em-up mentality for white-collar crime is misguided, The Economist (Oct. 29, 2016)