We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
WHO’S IN CHARGE HERE?
Maurice Collins knew that his cocaine distribution enterprise was a people business. If you don’t keep the customer satisfied, what kind of future do you have? So when a customer needed some powder while Maurice was out of town, he called Bob Palmer, another dealer he knew who owed him a favor, and got him to pick up and deliver an ounce of cocaine to the customer.
Sadly, the customer was an informant. When Maurice, who was otherwise eligible for the safety valve, went for sentencing, the district court found he was a supervisor because he got the other dealer to do his bidding. The 2-level enhancement under USSG 3B1.1(c) for being a manager killed Maurice’s shot at a safety valve sentence.
Christmas came early for Maurice when the 7th Circuit held that calling in a favor was different from being a manager. The appellate court said, “it was a legal error to apply Sec. 3B1.1 to the incident here. There was no organization or hierarchy, and there was just this one occasion involving Palmer, apparently as an equal rather than a subordinate, without Collins exercising control or authority over him.”
Because application of the 2-level enhancement disqualified Maurice from safety valve treatment, the district court’s error was not harmless. Maurice was remanded for resentencing.
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
GIVING THE POOR GOVERNMENT LAWYER A BOOST
Most of us imagine that litigation is a gladiatorial sport, one where the judge keeps it honest but otherwise leaves the parties to rise or fall by their wits, knowledge and preparation.
Lady Justice, after all, is blind to how the scales of justice tip.
Leonard Oliver got convicted of drug offenses along about seven years ago. Afterwards he filed a post-conviction motion under 28 USC 2255. When the court ruled against him in 2015, he apparently concluded that he probably should have appealed his conviction from four years before. So he filed a notice of appeal, attempting to do so.
The only problem with Len’s cart-before-the-horse approach to criminal litigation is that the Federal Rule of Appellate Procedure allow a criminal defendant 14 days to file a notice of appeal. Len was a little late, about three years and eight months late. Lucky for Len, the Supreme Court ruled earlier this year that a late-filed notice of appeal does not deprive the appeals court of subject-matter jurisdiction. Even luckier for Len, the government fought his appeal on the merits, never, for some inexplicable reason, objecting to the grossly late filing. Perhaps the luckiest break for Len, a party’s failure to timely object to timeliness forfeits its right to do so.
Lucky, lucky, lucky Len. Well, not so fast. Last week, the 4th Circuit last week held that just because the government overlooked the untimeliness does not mean the court has to. The Circuit invoked the inherent authority that all federal courts possess “to protect their proceedings and judgments in the course of discharging their traditional responsibilities.”
It is unsurprising that the Court found that in cases of prisoner civil litigation, where “complaints… are more likely to be “frivolous, malicious, or repetitive,” the courts could raise nonjurisdictional defenses where the government forgets to do so. Likewise, the 4th said, “a federal habeas court may also consider a statute-of-limitations defense sua sponte because [such] petitions implicate considerations of comity, federalism, and judicial efficiency to a degree not present in ordinary civil actions.”
Extrapolating, the Circuit said that “like meritless complaints and untimely habeas petitions, late-filed criminal appeals can implicate significant judicial interests. Most notably, they disrupt the finality of criminal judgments.” This is good reason, the Court said, to throw out a late-filed notice of appeal even where the government – because of forgetfulness or for strategic reasons – decides not to.
Say what? If the Court figures the defendant’s case could have been thrown out if the government had only thought to ask that it be, the Court can effectively take over the government’s case. And if the prisoner, who usually is acting as his own attorney and is litigating on a slightly smaller budget that the $2.074 billion allocated to U.S. Attorneys, needs a boost? Maybe he misses advancing a motion or argument that would carry the day for him. Will the judge step in with a useful suggestion?
Don’t bet the farm on it, Lucky Len. Federal courts seem much more willing to correct one party’s oversights when the party is the government and prisoners are on the other side. Do the math: a prisoner’s case ends up with two prosecutors, one defendant… and no impartial judge.
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
AND YOU WONDER WHY…
Oliver Cromwell threw out the Rump Parliament with criticism that seems altogether contemporary, given the diatribes that come from the Right against the Left and the Left against the Right. But we tend to be single-issue voters, so our interest is not so much pro-Trump or anti-Trump as it is pro-common sense on sentencing reform.
A few weeks ago, we reported that Rex Tillerson might get dumped as Secretary of State, a matter of little importance to most of us except that the shuffling that might occur as a result would move Sen. Tom Cotton (R-Arkansas) to the CIA.
For those of you who yawned at our report on Potomoc machinations, the following report may explain our enthusiasm for moving Sen. Cotton as far from a vote on sentencing reform as he can get. Legislation that would update and overhaul the nation’s juvenile justice system has stalled over a single Republican senator’s concern over whether youths should be locked up for low-level status offenses. The bills, already passed in the House and Senate (and now in conference committee to smooth out differences), have come to a screeching halt because of one senator – Tom Cotton.
Sen. Cotton likes seeing children thrown into kiddie jail, and he has thus long opposed measures that would keep youthful offenders from being locked up for violating piddling offenses like curfew and school attendance. In fact, he was able to see that the Senate version of the Juvenile Justice Delinquency and Prevention Actdid not soften laws that jailed minors for insignificant offenses. But the House version phases out all incarceration for such “status offenses” — including judicial orders — over the next three years.
Now, Sen. Cotton has refused to let the very bipartisan bill go to conference without a guarantee that the status offenses provision is a dead issue. “We have to get around Cotton, who won’t move,” said Marcy Mistrett, chief executive officer of the Campaign for Youth Justice, which supports the House bill. “He’s been very clear on that.”
Staffers for Reps. Jason Lewis (R-Minnesota) and Virginia Foxx (R-North Carolina) have been working to resolve Sen. Cotton’s concerns, a GOP House aide said.
Rep. Lewis and co-sponsor Rep. Bobby Scott (D-Virginia), “are encouraging the Senate to move quickly to conference so that we can iron out the small differences between the two bills, and get the president a bill with vital reforms to the juvenile justice system.”
That, in a nutshell, is why Sen. Cotton, who was opposed to the Sentence Reform and Corrections Act of 2015 a year ago, is so toxic to the chances of sentencing reform in the next few months. New York Times columnist and curmudgeonly conservative William Safire once was criticized for calling President Nixon a pimple on the ass of progress. He apologized, admitting that his description was wrong. “I should have said ‘boil’,” he ruefully admitted.
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
JUDGE’S HAMMERING OF ILLEGAL REENTRY DEFENDANT TOO MUCH FOR THE 2ND CIRCUIT
Latchman Singh, a native of the South American paradise of Guyana, lived in the United States for 39 years before a stealing-the-mail beef got him deported. His American wife and daughter stayed here, so of course he returned illegally to be with them. What dutiful father and husband would not?
He got caught and thrown out. He came back again, and this time was convicted of illegal reentry, with a Guidelines range of 15-21 months.
So far, it does not sound like a very exciting case: the defense, the probation officer and the government all thought Latchman should get something within his Guidelines sentencing range. But Judge Katherine Forrest, who was appointed by Obama but acts a lot like Trump, mistook Latchman for Al Capone. She varied upward on his sentence to 60 months, the maximum she could give him under the law.
Among other vexations, the Judge thought Latchman’s heartfelt letter to her that, among other things, explained that some of his 20-year old minor theft convictions resulted from “Bad Friend and Company who I follow,” showed he had not accepted responsibility. She fumed that “the kinds of crimes he is engaged in relate to a variety of conduct which is harmful, and it is harmful to members of the public. The public shouldn’t be exposed to it. It’s repeated and it’s repeated so often and so brazenly that I do not have any hope. I have no expectation, frankly, that it could stop.”
And conservatives complained Obama’s judges were too soft? Apparently, Judge Forrest – who, despite her Obama-esque credentials, has been described by legal commentators as “stinking rich” – lacks sufficient empathy for an illegal immigrant scrambling to support his pathetic little family in their pathetic little apartment. Whatever the roots of her rant, Judge Forrest’s Scrooge imitation was too much even for the 2nd Circuit, which reversed the sentence last week. As the Court of Appeals put it, “even if Singh’s sentence does not shock the conscience, it at the very least stirs the conscience.” It might even stir Judge Forrest’s privileged conscience (if she has one).
The appellate panel observed that nationally, upward variances in illegal reentry cases only happened 1% of the time, and Latchman’s criminal history – which Judge Forrest found to be extreme – was only a Category II, while the average illegal reentry defendant was a Category III. Latchman had eight prior convictions, but four of them were over 20 years old, and three of the eight were so minor he got neither jail nor probation.
Not only was the upward variance to four times his Guidelines minimum not substantively reasonable, the 2nd Circuit said, but the district judge’s handling of the acceptance of responsibility factor was not procedurally reasonable. The panel cautioned that a judge should not confuse “statements in mitigation with a failure to accept responsibility.” Latchman admitted he had committed wrongdoing, but explained he was influenced by a bad crowd and did foolish things. He said he came back to the USA because he was robbed and beaten in Guyana because of his Indian subcontinent heritage. “A defendant’s acceptance of responsibility and his assertion of mitigating circumstances,” the Circuit said, “are not necessarily inconsistent or incompatible.” While the district judge said she was giving Latchman acceptance-of-responsibility credit under the Guidelines, she pretty clearly took it away in her comments on the upward variance.
The Circuit did not assign the case to a new judge, pointedly saying, “we are confident that on remand the experienced and capable district judge will conduct a full resentencing, in compliance with all procedural requirements, and impose a sentence that is fair, reasonable, and sufficient but not longer than necessary to meet the goals of justice.”
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
DISTRICT JUDGE MUST CONSIDER 3553 SENTENCING FACTORS WHEN DECIDING EARLY SUPERVISED RELEASE TERMINATION
If you’re familiar with the phrase “Dilly Dilly,” you can thank Bud Light for turning the phrase into a cultural phenomenon. The companyadshave goneviralthanks to constant appearances during commercial breaks in NFL and college football games.
Anheuser-Busch InBev Chief Marketing Officer Miguel Patricio admits that “‘Dilly Dilly’ doesn’t mean anything. That’s the beauty of it. I think that we all need our moments of nonsense and fun. And I think that “Dilly Dilly,” in a way, represents that.”
As a substitute for a longer, reasoned response, “dilly dilly” works. Used in lieu of an explanation, it’s not so welcome.
After a federal defendant serves a prison term, he or she must then complete a term of supervised release, a post-incarceration period during which the defendant is under the thumb of a U.S. Probation Officer. The PO controls where the defendant lives, who he or she associates with, where he or she travels or works, even what he or she buys. Violation of the terms of supervised release – not necessarily commission of a crime – can land the defendant back in prison, once again disrupting his or her life and the lives of loved ones.
One of the few positive nuggets found in the dross of the supervised release statute is found in 18 USC 3583(e)(1), which lets an ex-inmate on supervised release get off paper after a year. Those defendants who know about the provision at all think that whether the court will cut them loose is up to whether the judge has indigestion from lunch or, if the defendant is fortunate, whether the probation officer got lucky the night before. Even POs are not immune: we have had one tell us that the judge will not grant a motion unless it is filed by the Probation Officer, and another told us she refuses to ever agree to early termination.
Under a criminal justice system governed by laws instead of caprice, we should expect more.
Anthony Johnson expected more. He did about 20 years before the Supreme Court’s Johnson decision knocked his 22-year Armed Career Criminal Act sentence back to the 10-year maximum it should have been all along. So with having served seven years more than the law required, having gotten a solid job, joined a church, and completed a squeaky-clean year on SR, Anthony filed a 3583(e)(1) motion to have his supervision terminated.
The judge denied his request in a one-sentence handwritten order on page one of Anthony’s motion, without so much as even asking the PO for his views or requiring the government file an opposition. He might as well have written “Dilly Dilly” in the margin.
Anthony expected more, and so he appealed to the 11th Circuit. Last week, the appellate panel reversed the district court.
The Circuit said that a 3583(e)(1) motion cannot be denied on a whim. Instead, the district court is required to apply the same 18 USC 3553(a) sentencing factors to a termination motion as it is supposed to have used in sentencing the ex-inmate to begin with. Given that Anthony had the statutory right to appeal denial of a motion to terminate SR, the 11th said, his district court was obligated to explain its decision to deny early termination in terms of the sentencing factors – the nature the offense, history of the defendant, the need for the sentence to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense – that the court should have used 21 years before when it locked him up.
The district judge will get another whack at Anthony’s early termination motion, this time explaining his decision by applying the 3553 sentencing factors.
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
ONE-OF-A-KIND HEARING HELD IN CHICAGO ON STASH HOUSE RACIAL PROFILING
The battle over whether stash house stings – where federal agents convince unwitting defendants to rob nonexistent stash houses of nonexistent drugs, all so they can arrest them – are designed to target minorities came to a head last week in an unprecedented three-day hearing in Chicago before a panel of nine U.S. district judges.
Each of the judges on the panel is presiding over one or more of 12 separate stash-house cases, with the liberty of 43 defendants at stake. The judges chose to hear expert testimony simultaneously after lawyers for all 43 defendants moved for the stash-house charges to be tossed on grounds of racial bias.
The testimony focused on dueling experts who reached starkly different conclusions about the racial breakdown of targets in the stash house cases. How they decide — possibly in a single ruling — is expected to influence how courts nationwide deal with similar claims.
An expert hired by the Federal Criminal Justice Clinic at the University of Chicago Law School — which is leading the effort to have the cases dismissed — concluded that disparity between minority and white defendants in the stings was so large that there was “a zero percent likelihood” it happened by chance. Defense expert Jeffrey Fagan said that out of 94 stash-house defendants in the Chicago area during an 8-year period, 74 were black, 12 were Hispanic and just eight were white. If the ATF criteria for picking likely defendants were racially neutral, he said, far more whites would have been snared.
Government lawyers have essentially argued that the numbers are unsurprising, because people in wealthier white areas are unlikely to be attracted to such a violent, illegal enterprise. In other words, the ATF goes where the business is good, and the business is good on Chicago’s South and West Sides. The government’s expert testified that Fagan wrong to assume that hundreds of thousands of people in eight counties in and around Chicago would be willing to entertain the idea of arming themselves and storming a stash-house.
Bootstrapping your way to higher sentences…
Stash house stings have been criticized on other grounds, several times in this blog – here, here, here, here and here, for example – because agents can and usually do arbitrarily increase the sentences meted out by increasing the amount of non-existent drugs they tell defendants are in the non-existent stash houses. After all, why conspire to steal one kilo of smack when you can conspire to steal 50? Of course, the sentencing guidelines – not to mention the drug distribution statute itself – dictate much higher sentences according to the amount of drugs with which the conspiracy is involved, whether those drugs are physical or virtual.
The groundbreaking hearing is being closely watched in federal districts across the country. How it plays out could have ramifications far beyond the 43 Chicago defendants who are seeking to have their charges thrown out. The judges are expected to issue separate rulings at a later date, although some lawyers think there could be joint opinions issued by several judges if any are in agreement.
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
INCH DOESN’T GIVE AN INCH IN CONGRESSIONAL TESTIMONY ON RRC CHANGES
The House Committee on Oversight and Government invited BOP Director Mark Inch, Dept. of Justice Inspector General Michael E. Horowitz, and several correctional advocates to a hearing last week, where BOP use of residential reentry centers – halfway houses and home confinement – was front and center.
Despite a lot of pushback from the legislators on the Committee, Director Inch did not describe the wholesale withdrawal of halfway house and home confinement time that many inmates have reported, and kept suggesting that all of the halfway house reporting in the media has really just centered on the BOP’s cut of 16 halfway houses, which represented only about 1% of RRC beds. The Director said those 16 were underutilized and were duplicated by nearby facilities. He mentioned almost as an afterthought that, oh yeah, the BOP has also been busy implementing the DOJ IG’s recommendation that it do a “better job of managing our contracts with those RRCs.”
The Director did his best to talk around repeated questions about recent BOP cuts to halfway house and home confinement time, and met every question from legislators with a repetition that the cuts to the 16 halfway house contracts did not “signal any lessening of our belief in the importance of the program. And I am committed to running the program very efficiently and to the capacity necessary for the population.”
[A] census of federal prisons has shown that BOP is sending fewer offenders to RRCs for these kinds of step-down services that reduce recidivism; instead these offenders are remaining longer in federal prison or being released directly into the community without support. Furthermore, BOP is no longer accepting US Probation Office residents in BOP-contracted RRCs, which will also negatively impact recidivism. Recent budget cuts were cited by the BOP as the primary reason for these changes.
At the Oversight hearing last awednesday, written testimony and nearly three hours of questioning shed light on what is happening with the BOP’s management of its RRC relationships.
Not the kind of “halfway house” we’re talking about.
First, it turns out that the Inspector General has criticized the BOP for sending “the great majority of eligible inmates into RRCs regardless of whether they needed transitional services, unless the inmate was deemed not suitable for such placement because the inmate posed a significant threat to the community. As a result, high-risk inmates with a high need for transitional services were less likely to be placed in an RRC or home confinement, and were correspondingly more likely to be released back into society directly from BOP institutions without transitional programming. Moreover, low-risk, low-need inmates were being placed in RRCs even though BOP guidance, as well as the research cited in the guidance, indicates that low-risk inmates do not benefit from and may in fact be harmed by RRC placement because of, among other things, their exposure to high-risk offenders in those facilities.”
Second, the BOP has been badly overpaying the halfway houses for home confinement services. It pays halfway houses an average of $70.79 for inmates placed there, but up until recently, it had blindly been paying half that – $35.39 a day – for inmates the halfway houses sent to home confinement. The Government Accounting Office has reported that the $35.39 daily payment had nothing to do with the actual cost of home confinement, which is more in the range of $8.00 a day. As a result, the BOP has now demanded halfway house contractors file separate bids for home confinement services, which should drive down costs to about what home confinement actually costs.
Third, Director Inch admitted that the BOP had been “overfilling” halfway houses well beyond the number of beds committed, and said that the new “normal” for the BOP will 4 months of halfway house only for those who really need it. This way, Inch said, three inmates could use a halfway house bed every year, each one for four months. This suggests that low-security and campers, who usually need a lot less reentry services, may remain where they are right up to the out date.
Fourth, the BOP changed its Statement of Work, the description of the resources a halfway house is expected to deliver (and which will be paid for by BOP), to eliminate delivery of cognitive behavioral programming (a requirement under the Obama administration) and associated staff training. The ICCA – whose members admittedly have a financial stake in receipt of the maximum amount of the $100 million plus the BOP spends annually on RRCs – said, “This is a significant change that means individuals coming out of federal prison will no longer receive the evidence-based programming that is proven to change criminal thinking and significantly lower recidivism.”
At the same time, the new SOW eliminates the RRC social services coordinator, who, according to the ICCA, has served as a liaison to community resources, has ensured continuity of care, has supported reentry transitional needs, and has coordinated social services including employment assistance and life skills programming. “They took away the person that was going to welcome them home, basically,” said former ICCA president Anne Connell-Freund. “It’s not exactly known how many halfway houses and how many beds have been affected.”
Rep. Elijah Cummings (D-Maryland) was concerned about the BOP’s “serious cuts” to the Baltimore halfway house that he said have put the facility on shaky financial ground. Director Inch may be a newbie at the BOP, but his experience as a general in the Army has honed his political instincts well. His affable non-answer to Rep. Cummings was to offer to stop by the Congrassman’s office for a one-on-one about Baltimore. But for now, he bloviated, “Is it our intent to cut back on the program: absolutely not.”
Rep. Matthew Cartwright (D-Pennsylvania) bluntly took the Director to task for current BOP plans to drop staff levels at prisons to 88% of “mission critical” levels. The Director suggested that the BOP will be adjusting its “mission critical” levels downward, which is a neat bureaucratic response to a serious problem. We don’t meet the standards? Then, by golly, let’s change the standards.
Rep. Cartwright pointed out that the BOP had gotten 99% of the appropriations it asked for wages and salaries, wondering why such cuts were needed in light of continued funding. The Director – who pled indulgence for being new on the job throughout the hearing – said he did not know why, despite the appropriation, the staffing cuts were so deep.
International Community Corrections Association, Bureau of Prisons Residential Reentry Centers: Reduction in bed use and programming will increase recidivism
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
CLEMENCY HOPEFULS EXPECTING LUMP OF COAL
Well, boys and girls, the stockings are soon to be hung by the chimney with care, in hopes that the annual emesis of Presidential pardons and commutations flow from the White House in celebration of Christmas.
Obama left DC, stranding 10,000 commutation applications.
It’s almost hard to recall the euphoria a year ago, with thousands of federal prisoners – nearly all of them drug offenders – followed events at the White House like they never had before, awaiting word on presidential clemency as the clock wound down on President Barack Obama. By the time The Donald rode down Pennsylvania Avenue, PBO had commuted more than 1,700 federal prisoner sentences. But Barry and Michelle climbed about the ex-presidential helicopter leaving 10,000 clemency petitions languishing on his desk without action.
We have had a lot of people whom Obama left hanging wondering whether the new President would take up their cause. The Atlantic magazine considered the question last week, and those folks probably will not like the answer. The Atlantic quotes Mark Osler, one of the architects of Obama’s clemency program, as predicting that the remaining 10,000 commutation petitions “will still be pending when the present occupant of the White House leaves—unless they’ve been fed to the shredder in the interim.”
While Osler, a law professor and clemency expert, said he disagreed with the former president over some elements of the petitioning process, “at least Obama’s heart was in the right place. Clemency is going nowhere in the Jeff Sessions DOJ.”
The Atlantic said DOJ could not be reached for comment on plans for clemency, but the magazine suggests the Trump Administration’s intentions seem manifestly different from Obama’s. “Where the previous White House tried to roll back the harshest sentences for low-level drug offenses,” the article said, “Attorney General Jeff Sessions has revived mandatory minimums. Where Obama supported criminal-justice reform, Trump has promised a return to “law and order.”
No one should forget that both Trump and Jefferson Beauregard Sessions III were harsh critics of Obama’s Clemency Initiative, calling its expanded guidelines “a thumb in the eye” of law-enforcement and court personnel. Thus far this year, Trump has issued three pardons – one last August for Arizona sheriff Joe Arpaio, well known for his systematic mistreatment of jail inmates and immigrants, and two turkeys during Thanksgiving Week.
The only pardon talk going on right now has to do with current and former White House staff, with the clemency power being used as a bludgeon against Special Counsel Robert Mueller. It may be high drama, but for federal prisoners, it is nothing but one big lump of coal.
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
GUNS AND DRUGS, BUT NOT AT THE SAME TIME
Where have we heard of this one before? Darryl Jackson found a buyer for some heroin. Unfortunately, the buyer was an informant, and he showed up to the buy with an undercover agent as his driver.
After the heroin transaction, the undercover cop-driver convinced the informant to ask Darryl about buying a gun as well as the drugs. Darryl wasn’t stocking any guns right then, but he wanted to keep the customer satisfied, so he walked home, grabbed a gun he had lying around the house, and returned to sell it to the informant.
The sale worked so well that Darryl apparently saw an opportunity to develop a side business. He sold the informant another gun a month later, and then a few minutes after the transaction, sold the undercover cop a gram of smack.
Naturally, Darryl was arrested and pled guilty. We wouldn’t have a story otherwise. Darryl’s presentence report included a 4-level enhancement to his advisory Guidelines sentencing range under USSG 2K2.1(b)(6)(B) for “possessing a firearm in connection with another felony offense, to wit: distribution of heroin.”
Darryl’s lawyer objected that “the guns and the drugs were not connected in any way, except to the extent that Mr. Jackson sold each of them, at different times, to the CI.” At sentencing, counsel contended, “In terms of the furtherance, there’s no close proximity. There’s no drugs and guns next to each other. They’re basically separate transactions.”
Alas, the district court did not buy it. Darryl got 100 months in prison, while with the four levels removed, his range would have been on the order of 77 to 96 months.
Last week, the 6th Circuit reversed. The appellate court said that “the § 2K2.1(b)(6)(B) enhancement applies if the defendant actually or constructively possessed the gun in connection with the felony. Because the record reveals no reason to conclude that Jackson actually possessed or used either gun in connection with the two drug sales, we focus here on constructive possession.”
Because he did not have a gun with him, the Circuit observed, Darryl had to walk a block away to retrieve the gun that he then exchanged for money. Because the gun was down the block during the initial heroin sale and because Darryl had no reason to expect there even would be a gun sale when he bought the drugs, there is no evidence that he “had either the power or the intention to exercise dominion or control over the gun in connection with this first sale of heroin.”
Actually, this is exactly how the Guidelines provision (and statutes like 18 USC 924(c)) are supposed to work. Darryl had a gun, but he did not carry it during a drug transaction. Maybe he worried about the extra time he could get for doing so. Maybe he worried about hurting someone. Maybe it was too heavy and made his pants droop. No one knows his thought processes, but the goal – short of ridding ourselves of drug trafficking altogether – is to get the violence out of the trade. The 6th Circuit’s wise parsing of the offense into two separate transactions honors this goal.
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
CERTIORARI DENIED TO DAN MCCARTHAN, BUT TWO OTHER SENTENCING CASES GRANTED SCOTUS REVIEW
You may recall McCarthan v. Collins, a case dealing with when and under what terms an inmate may use a 28 USC 2241 motion. Nine federal circuits let inmates file 2241s under the 2255 “saving clause,” which provides that a prisoner may use the 2241 form of federal habeas corpus if it “appears that the remedy by [2255] motion is inadequate or ineffective to test the legality of his detention.”
Earlier this year, however, the 11th Circuit held that an initial Section 2255 motion is an adequate and effective remedy to “test” a sentence, even when circuit precedent forecloses the movant’s claim at the time of the motion. After all, the Circuit said, a movant could have asked the court of appeals to overrule its precedent, sought Supreme Court review, or both. The saving clause in Section 2255(e), the 11th said, is concerned only with ensuring that a person in custody has a “theoretical opportunity” to pursue a claim, even if, at the time of the initial 2255 motion, the claim was virtually certain to fail in the face of adverse precedent. In other words, you have to raise arguments even when the court has already said the arguments are futile.
Both the 11th and 10th adhere to this draconian view. Dan McCarthan challenged the 11th Circuit interpretation. A few weeks ago, we reported that the Trump Justice Department asked the Supreme Court not to take the case, even though it acknowledged that the legal question is significant and that its new position could condemn inmates to serve out unlawful sentences. A week ago, the Supreme Court denied certiorari to Dan.
Freeman has been a mess. Hughes gives the Court a chance for a do-over that may let more people with Rule 11(c)(1)(C) sentences reductions.
It frequently happens that defendants cooperate with the government, and are rewarded with a reduction in sentence under Sec. 5K1.1of the Sentencing Guidelines. In Koons v. United States, the Supreme Court will determine whether a defendant who has a mandatory minimum sentence prescribed by statute, but who gets a 5K1.1 sentence reduction beneath that minimum, can later get a sentence reduction under retroactive Guidelines changes, even where the new sentence is below the mandatory minimum that was voided by the 5K1.1 motion.
Maurice Collins knew that his cocaine distribution enterprise was a people business. If you don’t keep the customer satisfied, what kind of future do you have? So when a customer needed some powder while Maurice was out of town, he called Bob Palmer, another dealer he knew who owed him a favor, and got him to pick up and deliver an ounce of cocaine to the customer.
Christmas came early for Maurice when the 7th Circuit held that calling in a favor was different from being a manager. The appellate court said, “it was a legal error to apply Sec. 3B1.1 to the incident here. There was no organization or hierarchy, and there was just this one occasion involving Palmer, apparently as an equal rather than a subordinate, without Collins exercising control or authority over him.”
