Vol. 2, No. 13

This week:

The Kentucky Two-Step
FOIA Information Isn’t Any Freer Than You Are
Ninth Circuit Judge Calls Out Prosecutors
2255 Prejudice Comes Cheap In The 5th Circuit
Legal Briefs –
     Me and My Big Mouth
     Try to Save Me Money? Take That!
     You’re Not Guilty Enough
Sentence Reform Lays an (Easter) Egg

DANCING THE KENTUCKY TWO-STEP

The Speedy Trial Act requires that a defendant be brought to trial within 70 days of indictment (subject to a lot of exceptions and exclusions). But what’s a court to do when there are no exclusions left, and the 70 days are up?

The 6th Circuit last week told an Eastern District of Kentucky court what it could not do. Jason Brown was a defendant with a definite idea about his rights under the STA. When the deadline loomed, but the attorneys had conflicts and a witness was not available for a couple of weeks, he refused to go along with a continuance. So the judge started the trial, picked a jury, and then recessed for a few weeks until everyone’s schedule was clear.

Problem solved? Jason didn’t think so, and the Circuit agreed. In a lengthy opinion, the Court concluded that the “trial did not commence on September 8, despite the commencement of voir dire, because the court employed the start-and-stop plan with the intent to pay lip service to the Act.” The appeals panel concluded that none of the days after September 8 were excludable from the STA, and thus Jason’s rights were violated.

The 6th Circuit noted in passing that the district court seemed to believe that Brown had to show “prejudice” to prevail on his STA claim. The Court rejected that, holding that the STA “guarantee is violated if the prosecution oversteps the time limits of the act. Under the Speedy Trial Act there is no need to measure prejudice to the defendant.”

United States v. Brown, Case No. 14-6543/6544 (6th Cir. Mar 24, 2016)
FOIA INFORMATION ISN’T ANY FREER THAN YOU ARE

It’s common for inmates to file requests under the Freedom of Information Act to obtain files relating to their cases. It’s almost as common to wait for years before hearing from the FBI, DEA or some other agency that hardly any documents (or no documents at all) exist.

If it seems that agencies are worse than ever in turning over records, there’s a reason: the Associated Press reported last week that during the Obama years, the government set a record for the number of times it told requesters that despite searching, it couldn’t find a single page requested under the FOIA.

In more than one in six cases – about 130,000 times last year – government workers said they came up empty-handed. In fact, people who asked for records under the law received censored files or nothing in 77% of requests, also a record.

The FBI couldn’t find any records in 39% of cases. U.S. Customs and Border Protection couldn’t find anything in 34% of cases. Skepticism over such results has led some requesters to specify exactly how they want federal employees to search for files, rather than relying on government staff to figure out how best to proceed. “They do really crappy searches,” said Washington lawyer Kel McClanahan, who handles transparency and national security cases.

Associated Press, US Government Sets Record For Failures To Find Files When Asked (Mar. 18, 2016)

9th CIRCUIT JUDGE CALLS OUT PROSECUTORS

Last summer, Judge Alex Kozinski of the 9th Circuit wrote a thoughtful law journal article called Criminal Law 2.0. In it, he listed 12 reasons to be concerned about the criminal justice system, including prosecutors withholding evidence from the defense in violation of Brady v. Maryland.

One of Judge Kozinski’s suggestions for ensuring Brady compliance was to name names: “When prosecutors misbehave, don’t keep it a secret. Defense lawyers who are found to have been ineffective regularly find their names plastered into judicial opinions, yet judges seem strangely reluctant to name names when it comes to misbehaving prosecutors.”

Last week, Judge Kozinski did just that. In Frost v. Gilbert, a decision on a Washington state habeas corpus, the 9th Circuit held that prosecutors had withheld evidence of a plea deal the prosecution had secretly given a witness in exchange for testifying, and then lied to the prisoner in answer to a public records request. The court held, however, that the prisoner had not been prejudiced, because – even if he had known about the secret deal – there was no reasonable probability that he would have been acquitted.

Five of the 11 Circuit judges essentially told the prosecutors – who were identified in the opinion– to report themselves to the state bar: “We have been apprised of no sanctions against these individuals, nor any inquiry conducted by the courts. Nor have we heard of any effort to hold [the witness] accountable for the perjury he almost certainly committed in his testimony in Frost’s case or to determine the degree to which he may have been aided in that endeavor by prosecuting attorney Wagnild. We are mindful that there may be circumstances of which we are unaware that cast the matter in a different light. Yet … we do not believe this is a sufficient reason to keep silent. The individuals we have named may wish to furnish a copy of this opinion to the state bar and seek to clear their names by providing an explanation for its consideration.”

Four of the en banc judges accused Judge Kozinski of using the decision as a “platform to offer the author’s ‘two-cents’ on the supposed inner-workings of Washington’s criminal justice system. Along the way, the character and integrity of several public employees is tarnished.”

Kozinski, Alex, Criminal Law 2.0, 44 Geo.L.J. Ann.Rev.Crim.Proc. (2015)

Frost v. Gilbert, Case No. 11-35114 (9th Cir. Mar 21, 2016)

2255 PREJUDICE COMES CHEAP IN THE 5TH CIRCUIT

Fletcher Freeman was charged with a drug conspiracy and possession. Later, the government piled on a third count for possession in a superseding indictment. He was convicted in due course.

Fletch filed a motion under 28 U.S.C. § 2255, claiming that the possession count was barred by the statute of limitations. He argued his lawyer was ineffective in failing to argue that the third count was filed past the 5-year cutoff.

Most 2255 ineffective assistance of counsel claims fail, not because lawyers don’t blunder (they often do), but because inmates can’t show that if that the mistake hadn’t happened, it’s reasonably probable they would have ended up better off. That’s what happened to Fletch in the district court: the government admitted the possession count was barred by the statute of limitations, but said Fletcher would gotten the same sentence even without it.

Last week, the 5th Circuit reversed. It held that “Freeman’s counsel was deficient … Counsel was required to perform research on whether the superseding indictment would relate back to the original indictment.” More important for Fletcher Freeman, the Circuit held that “the ‘prejudice prong’ is also supported by the record. Freeman had to pay a $100 special assessment on count three; thus, he suffered prejudice as a result of counsel’s failure to move to dismiss said count.”

So a hundred bucks will buy you prejudice. There are few better bargains in life.

United States v. Freeman, Case No. 14-30220 (5th Cir. March 21, 2016)

LEGAL BRIEFS

ME AND MY BIG MOUTH

When Jorge Sanchez was being booked after his arrest on trafficking charges, the police booking asked the not-yet-Mirandized defendant the usual questions about his name, date of birth, height, weight, and so on. When asked for his current employment, Sanchez matter-of-factly answered that he was “a drug dealer.”

Not a good answer. Last week, the 1st Circuit told the abashed Sanchez that normal booking questions do not constitute an interrogation, and that it would not suppress his wise-ass response.

United States v. Sanchez, Case No. 15-1107 (1st Cir. Mar. 23, 2016)

TRY TO SAVE ME MONEY? TAKE THAT!

Prison phone companies told the U.S. Court of Appeals for the D.C. Circuit last week that enforcement of new Federal Communications Commission-ordered lower rates for in-state calls will cause “jail unrest.”

The phone companies want the Court to stay the FCC order. The vendors say the court should mostly preserve the status quo, while the FCC argues that the order lets it apply its existing caps on interstate call rates to intrastate calls.

A phone company executive said in an affidavit that if the new order is enforced, “inmates will be angry if they believe that we are charging the wrong rates. There could be damage to our phones and equipment, as well as a threat to overall security and corrections personnel including inmates within the facilities. Having been in this industry for eight years, I have experience with jail unrest and I know that issues with the phones can trigger it.”

Ars Technica, Prison phone company says rate caps will make inmates angry and dangerous (Mar. 18, 2016)

YOU’RE NOT GUILTY ENOUGH

“I admit I was in a conspiracy with other people to, uhm — with 50 grams or more of meth, to have bought it,” Lloyd Nickle told the district court.  The judge, however, wanted more, telling him to “admit enough information for me to make a reasonable decision about your drug activity.” But Nickle added only that other conspiracies were not in Montana, but “in other states.” The district refused to “accept a plea from this man under these circumstances,” and made him go to trial.

Last week, the 9th Circuit reversed. It said “there is no requirement in Rule 11(b) that the defendant himself give an in-depth account of his crime or confirm that everything in the government’s offer of proof is true. Although Nickle claimed ‘some of the things that the witnesses say [in the government’s offer of proof] are untrue,’ he never suggested that the government did not have sufficient evidence for a jury to conclude that he is guilty. Armed with the defendant’s admission of guilt and the government’s offer of proof, the district court had all it needed to fulfill its duty under Rule 11(b)(3).”

United States v. Nickle, Case No. 14-30204, -30229 (9th Cir. Mar 21, 2016)

SENTENCE REFORM LAYS AN (EASTER) EGG

The Sentencing Reform and Corrections Act of 2015 – before the Senate as S. 2123, and before the House as H.R. 3713 –is nowhere near hatching.  All that happened last week was that H.R. 3713 picked up yet two more cosponsors, both  Democrats from New York. The Senate bill still has 28 cosponsors, while H.R. 3713 now has 63.

Mostly, legislators were  home for Easter week. Back in Kentucky, Senate Majority Leader Mitch McConnell told students at Northern Kentucky University that S. 2123 is supported by a majority of Democrats, but Republicans are divided on the issue. “The reason it’s kind of divided is that you’ve got an awful lot of people in the law enforcement community that are not really convinced that having lighter sentences is a good idea,” McConnell said. “They oppose federal sentencing reform because “there aren’t any casual users in the federal prison, these are all the bad guys.”

And how about those “bad guys?” The Justice Department last week released statistics – which showed federal prosecutors pursued fewer but more serious drug cases – as evidence that Obama’s criminal justice reforms are bearing fruit. “Federal prosecutors are consistently using their discretion to focus our federal resources on the most serious cases and to ensure that we reserve harsh mandatory minimum sentence for the most dangerous offenders,” Deputy Attorney General Sally Yates said.

New statistics show federal drug prosecutions down 6% in 2015 after a prior 14% drop since the beginning of former Attorney General Eric Holder’s “Smart on Crime” initiative. Since 2012, the number of federal drug defendants accused of using a weapon rose from 15% to 17% and the number with a leadership role went from 6.6% to 7.8%.

In a speech last Wednesday to Congressional interns, House Speaker Paul Ryan (R-Wisconsin) said that criminal justice policies embraced by Congress in the 1990s have “end[ed] up ruining [defendants’] lives and hurting their communities where we could’ve have alternative means of incarceration, instead of basically destroying someone’s life. I’ve become a late convert.”

Business Insider reported that Ryan said, “Criminal-justice reform is something I never thought of when I was younger.  Be tough on crime, be tough on crime.”  Ryan said criminal-justice reform bills would be brought to the House floor soon, and he pledged to “advance” them.  “I didn’t necessarily know this before, but redemption is a beautiful thing. It’s a great thing.  Redemption is what makes this place work. We need to honor redemption. We need to make redemption something that is valued in our culture and our society and in our laws.”

Legal Information Services Associates provides research and drafting services to lawyers and inmates. With over 20 years experience in post-conviction motions and sentence modification strategy, we provide services on everything from direct appeals to habeas corpus to sentence reduction motions to halfway house and home confinement placement. If we can help you, we’ll tell you that. If what you want to do is futile, we’ll tell you that, too.

If you have a question, contact us using our handy contact page. We don’t charge for initial consultation. 

Would you like a copy of this newsletter in PDF format?  Click here.

Vol. 2, No. 12

This week:

More Clemency Grants Rumored

Honor the Procedure

Public Defender Calls For Post-Conviction Right To Counsel

Stop Me Before I Rob Again

No Friend Of Mine

Nothing Happening On Sentence Reform

MORE CLEMENCY GRANTS RUMORED

President Obama is expected to grant clemency to another group of federal prisoners in the coming weeks, part of his effort to provide relief to federal inmates sentenced to harsh sentences for drug offenses.

When Obama first announced his clemency initiative in 2014, the Department of Justice asked private attorneys for help in locating candidates for commutation. At that time, DOJ was already sitting on thousands of applications. Two years later, 9,000 petitions are pending at DOJ, and another 9,000 still await review by the lawyers who volunteered to help review applicants. So far the organization, known as Clemency Project 2014, has been contacted by 34,000 prisoners, but has forwarded petitions from only 300 or so. Only 31 have received commutations.

The raw number of commutations granted by Obama – 187 – looks impressive, but it represents less than 1% of the petitions he has received, compared to almost 7% for Richard Nixon, 4% for Gerald Ford, and almost 3% for Jimmy Carter. In 2014 the Obama administration envisioned granting thousands of commutations by the end of 2016. After a very slow start in his first term, Obama did pick up the pace, but not nearly enough to hit that target.

The DOJ blames the Clemency Project, and says the group should hand over the outstanding cases without further vetting. Cynthia Roseberry, project manager at the lawyers’ network, denies foot dragging. One reason the Clemency Project has been moving so slowly is to be sure applicants meet the DOJ’s “excessively picky criteria,” which include whether a prisoner would have received a shorter sentence under current law, whether he has a significant criminal history, whether he has good conduct in prison, and whether he has significant gang ties.”

Washington Post, President Obama expected to grant more clemencies to federal prisoners in coming weeks (Mar. 11, 2016)

Reuters, Obama’s prisoner clemency plan faltering as cases pile up
(Mar. 14, 2016)

HONOR THE PROCEDURE

Calvin Davis made a few mistakes. First, he joined a heroin conspiracy. Second, he didn’t pick his buyers carefully, one of whom turned out to be a confidential informant. Third – and most important – he made a lousy plea deal.

Last week, he learned why economist Thomas Sowell warns that “you will never understand bureaucracies until you understand that for bureaucrats procedure is everything and outcomes are nothing.”

Cal’s plea deal provided he would be sentenced to 66% of either the low end of the Guidelines sentencing range or the statutory minimum term, whichever was higher. He expected an 80-month prison term. But the Guidelines range figured by the probation officer came out much higher than the parties had expected. The court ordered Davis to serve 172 months, a term that was 66% of the low end of the Guidelines range (consistent with the plea agreement) but more than twice what the parties anticipated when they made the plea deal.

Cal didn’t appeal or file a timely motion under 28 U.S.C. § 2255. But after the Supreme Court’s decision in Alleyne v. United States, Davis filed a § 2255 motion contending that he was entitled to relief because the judge’s sentencing findings regarding his criminal history had increased the minimum term of imprisonment. Alleyne held that any factual determination increasing a defendant’s statutory mandatory minimum term (in that case, the fact that a defendant “brandished” a gun instead of just “possessing” it) must be charged in the indictment and proven beyond reasonable doubt to the factfinder.

The district court held Davis had no Alleyne claim because the Supreme Court has not declared that decision applicable retroactively on collateral review. Last week, the 7th Circuit agreed.

The appellate judges were puzzled as to why Davis thought Alleyne helped him at all. He was subject to a 10-year statutory minimum based on the amount of drugs involved in the trafficking conspiracy – an amount charged in the indictment and to which he admitted. What’s more, criminal history findings like the ones that subjected Calvin to higher guidelines are exempt from the Apprendi v. New Jersey precedents entitling a defendant to a formal charge and a trial on facts that expose him to harsher penalties. But “the clearest impediment to the Alleyne claim” was “that the Supreme Court has not held that Alleyne applies retroactively to cases on collateral review.”

Only the Supreme Court has authority to declare Alleyne retroactive, the 11th Circuit said, and unless it does, no one can claim the benefit of Alleyne in a § 2255 motion. The Supreme Court has not declared Alleyne to be retroactive, so the case’s constitutional teachings are not available to anyone unlucky enough to be improperly sentenced before it was decided.

Procedure is everything.

Davis v. United States, Case No. 14-3019 (7th Cir. Mar. 15, 2016)

PUBLIC DEFENDER CALLS FOR POST-CONVICTION RIGHT TO COUNSEL

In a column coinciding with last Friday’s 53rd anniversary of Gideon v. Wainright, a New York public defender official called for establishment of a post-conviction right of counsel.

Under current law, prisoners are seldom entitled to a lawyer for habeas corpus actions like § 2255 motions or suits challenging prison conditions. Ken Strutin, director of legal information services at the New York State Defenders Association, argued that the right to counsel has not kept pace with overcriminalization and mass incarceration.

Strutin contended that “for the pro se, ‘access to the courts’ has been whittled down to filling out forms and rummaging through libraries inadequate to their purpose … There is no equality of lawyering between the state and the imprisoned. The information world is cruelly biased in favor of the free and the Internet ready. Government lawyers can cite materials in their briefs found easily online or on the other side of publisher paywalls. They have access to the most current resources, information archives and litigation support. How do ill-starred pro se prisoners respond to something they can’t look up, update or understand?”

Kenneth Strutin, Post-Conviction Representation, A Human Need, A Cognitive Right, New York Law Journal (Mar. 15, 2016)

STOP ME BEFORE I ROB AGAIN

Willie McCloud was convicted of being a felon-in-possession. Because he had three prior robberies, the court sentenced him under the Armed Career Criminal Act.

The ACCA provides that the prior crimes making a defendant eligible for an ACCA sentence enhancement must be “committed on occasions different from one another.” Over the years, courts have generally agreed that a crime is successive when a defendant has “a meaningful opportunity to desist … activity before committing the second offense” and “the crimes reflect distinct aggressions.”

The Government argued that Willie’s charging documents showed three separate case numbers assigned to the offenses he committed on August 4, 2008, that Willie and his fellow perps stole from three different people that day, that different kinds of property were stolen, and that the robberies were committed with different co-defendants. Willie seems to have been pretty busy that day.

The 11th Circuit threw out the ACCA enhancement. It held that just because “the charging documents indicate there were unrelated victims and different items stolen does not constitute ‘reliable and specific evidence’ pertaining to the time and location of the offenses, or otherwise indicate that there was a meaningful break between the offenses. We would not consider three temporally and logistically distinct robberies of the same victim to be a single offense. Correlatively, we do not consider – without more evidence – three different victims to indicate that the offenses were temporally or logistically distinct. Similarly, whether the pieces of property stolen were of the same or different types does not indicate the time or place of events. On the face of the charging documents, it is plausible that all three victims were standing in the same location, and each simultaneously gave up the items of value in his pockets. Thus, that there were different victims and the items stolen were two gold chains, one cell phone, and one wallet provides no indication whether the thefts were committed successively rather than simultaneously.”

United States v. McCloud, Case No. 14-14547 (11th Cir.  March 16, 2016)

NO FRIEND OF MINE

Last week, President Obama nominated D.C. Circuit Judge Merrick Garland to the Supreme Court. The nomination still has to be approved by the Senate – which has promised not to act on it until after the election – and it’s hardly sure that Judge Garland will reach the high court.

Still, special interest groups are already howling that Judge Garland is too progressive and anti-business. Whatever. For prisoners – a one-issue special interest bloc if ever there was one – only one question matters: How is Judge Garland on criminal law issues?

Not so good, it turns out. When Garland was in the running for the Supreme Court in 2010, Washington attorney Tom Goldstein analyzed of Garland’s record for Supreme Court website SCOTUSblog. Although there were few cases to go on (the DC Circuit doesn’t handle many criminal law cases), Goldstein found that Garland tended to take conservative positions on criminal law.

Garland’s “track record shows a substantial sympathy for the government in criminal cases. He rarely votes to overturn a criminal conviction,” Goldstein said. In the 2010 analysis, Goldstein found Garland ruled the “opposite of his more liberal colleagues 10 times, but never goes opposite in the other direction of being more favorably inclined to the defendant.”

In cases where the law is unclear, Garland will probably be more likely to rule against the defendant. So he may not follow the rule of lenity — and side with defendants when criminal law is vague — like Scalia did. “He is a centrist, a call-them-as-I-see-them, I-have-no-interest-in-changing-the-law kind of guy,” Goldstein reported.

Is Merrick Garland more conservative than Antonin Scalia
on criminal justice issues? Vox (Mar. 17, 2016)

NOTHING HAPPENING ON SENTENCE REFORM

The legislative glacier that is the Sentencing Reform and Corrections Act of 2015, before the Senate as S. 2123, and before the House as H.R. 3713, did not budge last week. H.R. 3713 picked up two more cosponsors, Democrats from Georgia and California. The Senate bill remains at 28 cosponsors, while the House measure now has 61.

The Austin American-Statesman and Las Vegas Review-Journal newspapers strongly supported federal sentence reform last week. And Washington Post columnist George Will wrote a column last Wednesday entitled Sentencing reform alone won’t fix crime and punishment in America, which argued that more effective post-release services had to be adopted along with sentencing reform.

Will noted that “the federal prison population, which devours 25% of the Justice Department’s budget, has increased more than 300 percent in less than 30 years. Only 7% are convicted of violent crimes. Granted, a person in prison poses no threat to the community. The problem is that almost everyone who goes to prison is going to return to the community from which he or she came, and most will not have been improved by the experience of incarceration … What we are not doing well is supervising people released from incarceration. Hence … the “crime-incarceration-crime cycle.” He says “more people are sent to prison each year for violating probation or parole conditions than as a result of conviction for new crimes.”

Legal Information Services Associates provides research and drafting services to lawyers and inmates. With over 20 years experience in post-conviction motions and sentence modification strategy, we provide services on everything from direct appeals to habeas corpus to sentence reduction motions to halfway house and home confinement placement. If we can help you, we’ll tell you that. If what you want to do is futile, we’ll tell you that, too.

If you have a question, contact us using our handy contact page. We don’t charge for initial consultation. 

Would you like a copy of this newsletter in PDF format?  Click here.

Vol. 2, No. 11

This week:

Every Dog Gets One Bite

Hold the Phone

Welcome Back

Judge Gleeson’s Swan Song

Let Me Sleep on It

The Brady Bunch

Some Rumblings On Sentence Reform Legislation

EVERY DOG GETS ONE BITE

About 20 years ago, Congress rewrote the habeas corpus laws to sharply limit prisoner access to 28 U.S.C. § 2255 motions. A central component of the change was the requirement that every prisoner gets only one § 2255 motion, unless a court of appeals authorizes a “second-and-successive” § 2255 filing.

Generally, getting permission for a second § 2255 is as rare as a snow squall in August (although if Johnson v. United States becomes retroactive, there’ll be a flurry of such motions). But federal prisoner and serial filer Sheldon Fuller thought he’d figured out a way around the second-and-successive limitation.

Sheldon filed his first § 2255 motion in 2011.  It was denied.  He sought a certificate of appealability from the 2nd Circuit in order to appeal.  The COA was denied, too.  But before the Court of Appeals acted on the COA, Sheldon filed a second § 2255 motion, arguing that it was not “second-and-successive” (and thus he did not need Court of Appeals permission to file it), because denial of his first § 2255 was not yet final.

The district court denied the second § 2255 on the merits, too. Likewise, his application for a COA was denied. But – you guessed it – before denial of the second § 2255 was final, Sheldon filed a third § 2255, claiming that it too was not second and successive because his prior § 2255 was still pending. Under Sheldon’s theory, he could keep filing new § 2255s until his release date (which, given his life sentence, was never), as long as he filed the new one before denial of the previous one was final.

Last week, the Second Circuit limited Sheldon’s dog to one bite. Holding that the Antiterrorism and Effective Death Penalty Act was intended to give every prisoner one chance for full collateral review, it ruled that because Sheldon’s first § 2255 had “reached final adjudication prior to commencement of the present proceeding, his instant § 2255 motion is successive.” The Court said the rule is that any § 2255 is successive if it “filed subsequent to the conclusion of a proceeding that counts as the first.” Interestingly, however, the Court suggested in a footnote that while Sheldon’s “second § 2255 motion was successive is not currently at issue, we note that it differed from the third § 2255 motion in that the second motion was filed before the adjudication of Fuller’s first § 2255 motion became final.”

Perhaps Sheldon’s strategy does work … once.

Fuller v. United States, Case No. 15-3006 (2nd Cir. Mar. 5, 2016)

HOLD THE PHONE

The U.S. Court of Appeals for the D.C. Circuit last week put on hold a Federal Communications Commission order capping prison phone-call rates.

The FCC voted 3-2 last fall to put a rate cap on charges for all phone calls to and from prison inmates. The order was intended to curb what the FCC called “excessive rates and egregious fees” paid by inmates – as high as $14 a minute in some jails (31 times the per-minute cost of a call to Antarctica). The FCC’s rule limits the rate for debit and prepaid calls in state or federal prisons to 11 cents a minute.

The caps were challenged by prison phone companies and several states, which argued that the FCC had exceeded its statutory authority and had unlawfully disregarded the actual costs of providing telephone services to inmates.

Global Tel*Link v. FCC, Case No. 15-1461 (D.C.Cir., Mar. 7, 2016)

WELCOME BACK

How many Federal inmates will come back to prison at some point in their lives? Ask around the table at chow some time. The answers you get will probably be at odds with reality.

Last week, the U.S. Sentencing Commission issued results of a study that reported some sobering facts. Over an 8-year follow-up period, almost half of federal offenders released in 2005 (49.3%) were rearrested for a new crime or rearrested for a violation of supervision conditions. Almost a third (31.7%) of those guys were also reconvicted, and one-quarter (24.6%) of them were reincarcerated over the same study period.

The most dangerous time for a freed inmate is the first two years after release. The Sentencing Comission said that median time from release to rearrest was 21 months.

What’s more, all that talk about “frequent fliers” – people with impressive criminal histories who keep coming back – seems to be true. An inmate’s criminal history closely correlates with recidivism rates. Rearrest rates range from 30.2% for offenders with zero total criminal history points to 80.1% of offenders in the highest Criminal History Category. A federal prisoner’s age at time of release into the community is also closely associated with differences in recidivism rates. Offenders released prior to age 21 had the highest rearrest rate (67.6%), while offenders over 60 years old at the time of release had a recidivism rate of 16.0%.

U.S. Sentencing Commission, Recidivism Among Federal Offenders:
A Comprehensive Overview (Mar. 9, 2016)

JUDGE GLEESON’S SWAN SONG

U.S. District Judge John Gleeson, in his final days on the Eastern District of New York bench before joining a white-shoe Wall Street law firm, last week invented a blueprint for helping people convicted of federal crimes secure jobs.

More than a dozen states issue certificates to ex-offenders who prove rehabilitation, usually by remaining offense-free for a long stretch. The certificates protect prospective employers and may exempt recipients from laws that bar convicted felons from obtaining occupational licenses (now required for about one out of five jobs).

There is no equivalent federal certificate, so Judge Gleeson rolled his own. In an order issued last week, the judge issued a “federal certificate of rehabilitation” to a nurse with a 13-year-old fraud conviction. The defendant – identified only as “Jane Doe” — had been shut out of nursing jobs because of her conviction for a car insurance scam. She did 15 months for it, and was released 12 years ago.

Judge Gleeson wrote, “I had no intention to sentence [Doe] to the unending hardship she has endured in the job market … Her conviction makes her no different than any other nursing applicant. In the 12 years since she reentered society after serving her prison sentence, she has not been convicted of any other wrongdoing. She has worked diligently to obtain stable employment, albeit with only intermittent success. Accordingly, I am issuing Doe a federal certificate of rehabilitation.”

The judge expunged the conviction of another defendant in the same case last year, in what legal experts said was the first instance of a federal court erasing a criminal record on the grounds that it interfered with employment. Unsurprisingly, the Justice Department is appealing his order in that case.

Doe v. United States, Case No. 15-Misc-1104 (E.D.N.Y., Mar. 7, 2016)

LET ME SLEEP ON IT

Nicholas Ragin was concerned about being charged with running a prostitution ring and dealing drugs. His lawyer, Nikita V. Mackey, however, remained calm … very calm. So calm, in fact, that he slept during the 3-week trial of Nick and his co-conspirators.

The jury convicted Nicholas, and he got 30 years. He filed a § 2255 motion that raised eight different issues, one of which was his complaint that counsel had slept during trial. Nick’s one-paragraph aside in the § 2255 motion became the focus of an evidentiary hearing. Other defense counsel and a juror testified to counsel’s extended napping, with stories such as this one:

Mr. Mackey was sort of sitting back, leaning back in his chair with his left elbow on his left thigh … and sort of with his chin resting on his fist, and government counsel held the document in front of him and he didn’t move, he sort of sat there. Judge Conrad leaned into his microphone, because we were all sitting there and Mackey wasn’t moving and said, ‘Mr. Mackey’ . . . very loudly. Mackey then jumped up and sort of looked around and was licking his lips and moving his mouth and looked sort of confused and looked all over the room except at government counsel. And after a few seconds, he saw government counsel standing there and looked at the document.”

Despite the testimony, the district court denied the § 2255 motion, holding that Nick had not proven that he was prejudiced by counsel’s one-man slumber party. The district judge discounted the juror’s testimony because he thought she perhaps felt “remorse” for the stiff sentence the defendant received.

Last Friday, the 4^th Circuit Court of Appeals threw out Nick’s conviction. The decision said, “We find it impossible not to conclude that Mackey was … not functioning as a lawyer during a substantial portion of the trial. Unconscious counsel equates to no counsel at all. Because we have no basis to conclude that an attorney who sleeps through a substantial portion of the trial has exercised judgment on his client’s behalf, ‘we have insufficient basis for trusting the fairness of that trial and consequently must presume prejudice.’ Therefore, the fact that Mackey was sleeping during Ragin’s trial amounted to constructive denial of counsel for substantial periods of that trial.”

United States v. Ragin, Case No. 14-7245 (4^th Cir. Mar. 11, 2016)

THE BRADY BUNCH

Just about everyone knows something about Brady v. Maryland, the 1963 Supreme Court decision that holds the government violates due process when it fails to disclose to the defense evidence favorable to the accused, either because the evidence is exculpatory or because it is impeaching.

Thus, there was a flutter of excitement last week when the Supreme Court tossed a Louisiana murder conviction in a summary reversal that drew a sharp dissent from two conservative justices. The unsigned opinion held that the state court erred in upholding Michael Wearry’s conviction after it turned out that the prosecution withheld information “that could have advanced” Wearry’s defense. The opinion said that “beyond doubt, the newly revealed evidence suffices to undermine confidence in Wearry’s conviction.”

Justices Samuel Alito and Clarence Thomas, dissented, calling it “highly inappropriate” to reverse without granting certiorari so that the State of Louisiana could be heard. The majority retorted that “the Court has not shied away from summarily deciding fact-intensive cases where, as here, lower courts have egregiously misapplied settled law.”

The decision is interesting to anyone who likes seeing a blatant Brady violation, but it does not really extend or expand Brady in any meaningful way.  Still, a due process win and a hot cup of coffee is a good way to start a cold spring morning.

Wearry v. Cain, Case No. 14-10008 (Supreme Court, Mar. 7, 2016)

SOME RUMBLINGS ON SENTENCE REFORM LEGISLATION

Nothing changed on the House or Senate legislative calendars last week for the Sentencing Reform and Corrections Act of 2015 (which some call “Sriracha”). The Senate bill (S. 2123) still has 28 cosponsors, while the House measure (H.R. 3713) has 59.

However, people are talking, and for a change, some of the talkers are people who are in a position to know something. Speaking at a Georgetown University Law Center conference last week, Senate Judiciary Committee Chairman Charles Grassley (R-Iowa) said “We are very close to making some changes in this bill so we can get it brought before the United States Senate.”

In January, a group led by Sen. Tom Cotton (R-Arkansas) raised concerns that Sriracha could release thousands of violent criminals early. Criminal justice reform advocates argued the bill would not guarantee the release of violent criminals, but simply let their cases get reevaluated by a federal judge.

Last Tuesday, Grassley called Cotton’s concerns “legitimate and reasonable.” While he did not provide specifics on the amendments, Grassley said legislators may have to drop parts of the bill that would have allowed Armed Career Criminal Act inmates get their sentences lowered retroactively.

Ohio State law professor Doug Berman said last week in his sentencing blog that “Senator Grassley also spoke about all the complaints he receives back in Iowa and elsewhere about leaders in DC spending all their time fighting over politics and not getting anything actually done. Senator Grassley’s comments have me now thinking that he and other GOP members of the Senate are likely to stress bipartisan work on sentencing reform when attacked by Democrats and others for ‘not doing anything …’ And work on sentencing reform will not seem all that meaningful if a bill does not come to the floor of the Senate at some point.”

The House also must pass its version of the bill, and there are reasons for concern that the House will not do so unless mens rea reform is a part of the equation.  Berman said “every day that goes by without the legislative process moving forward tangibly is yet another day lost before the congressional election season gets into full swing when members of Congress start focusing more on November voting dynamics rather than whether they get anything done on a complicated policy issue that involves lots of compromises and intricacies.”

In what could be a favorable indication of Congressional movement, the Senate last Thursday overwhelmingly passed a broad drug treatment and prevention bill, the largest of its kind since a law in 2008 that mandated insurance coverage for addiction treatment. The New York Times suggested that this legislative accomplishment could be a bipartisan model for Senate cooperation on criminal justice reform.

Former Congressman J.C. Watts (R – Oklahoma), chairman of the Charles Colson Task Force on Federal Corrections, wrote a spirited piece in The Hill last week attacking myths about prison reform, such as “all drug offenders are violent” and “law enforcement is opposed to Sriracha.” He concluded that “as Congress contemplates prison reform, it could take a page out of the book of state experiences … There, public officials on both sides of the aisle came together to develop better models, informed by evidence and data, that could reduce prison overcrowding, conserve resources, and enhance public safety. These reform efforts demonstrate that it is indeed possible to promote public safety while being fiscally responsible, creating a more equitable and effective criminal justice system.”

Legal Information Services Associates provides research and drafting services to lawyers and inmates. With over 20 years experience in post-conviction motions and sentence modification strategy, we provide services on everything from direct appeals to habeas corpus to sentence reduction motions to halfway house and home confinement placement. If we can help you, we’ll tell you that. If what you want to do is futile, we’ll tell you that, too.

If you have a question, contact us using our handy contact page. We don’t charge for initial consultation. 

Would you like a copy of this newsletter in PDF format?  Click here.

Vol. 2, No. 10

This week:

English 101

It’s Good To Be The King

Plea Bargaining “A Monster”

What’s Yours Is Mine

You Must Act Now

Take Your Time

Could Supreme Court Nominee Battle Help Pass Criminal Reform?

ENGLISH 101

Remember how bored you were in the back of the classroom while your English teacher droned on about conjugation, dependent clauses and prepositional phrases? Here’s another reason you should have paid attention.

Lockhart pleaded guilty to possessing child pornography. Because he had a prior state court conviction for first-degree sexual abuse involv¬ing his adult girlfriend, the district court held that he was subject to a 10-year sentence enhancement triggered by conviction for a crime “relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.”

Lockhart argued that the limiting phrase “involving a minor or ward” applied to all three state crimes, so his prior conviction should not trigger the enhancement. But last week, the Supreme Court disagreed.  The majority applied the Rule of the Last Antecedent – a rule of statutory interpretation holding that “a limiting clause or phrase … should ordinarily be read as modifying only the noun or phrase that it immediately follow.” The rule means that the phrase “involving a minor or ward” modifies only the immediately preceding noun phrase “abusive sexual conduct.” The phrases “aggravated sexual abuse” and “sexual abuse” are not restricted by the modifier.

The 6-2 opinion admitted that the Rule of the Last Antecedent “can . . . be overcome by other indicia of meaning,” but argued that here, the statute’s context reinforces the conclusion that sexual abuse against anyone – not just a minor – was enough to trigger the enhancement.

Lockhart v. United States, Case No. 14–8358                                          (Supreme Court, Mar. 1, 2016)

IT’S GOOD TO BE KING

Back in the Days of Yore, peasants were simply not allowed to sue the King. Or do anything else, for that matter. Times have changed, but the notion that you cannot sue the king survives in a doctrine known as “sovereign immunity.” In other words, us peasants may not sue the government, unless we get permission from the government to do so

In the case of the federal government, permission comes in the form of the Federal Tort Claims Act, which grants permission to sue the Feds for certain kinds of wrongs, but not others.

The FTCA is what Frank Douglas turned to when he thought he’d been cheated out of BOP inmate pay.  Frank was a Performance Grade I inmate employee, working 154 hours a month running a cardboard recycler at FCI Coleman.  His boss agreed that he had $91.00 a month coming, but when got paid, Frank found his pay had been cut to about $7.00.  Frank alleged his pay had been cut by a lieutenant who said he didn’t “like Inmate Douglas black ass and I’m going to pay him what I want.” Predictably, the government moved to dismiss, arguing that paying inmates for their work was a purely discretionary function, and thus the L-T’s conduct couldn’t be reached under the FTCA.

The FTCA’s discretionary function exception does not waive sovereign immunity for claims “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency …” The government argued that because the BOP doesn’t have to give inmates jobs to begin with, then obviously, whether to pay them is discretionary as well.

Last week, the 11th Circuit rejected that defense. The court held that the “discretionary function” issue relates to the individual employee – in this case, whether the lieutenant had discretion – not whether the BOP had discretion. Here, the BOP had rules that give prisons discretion to decide which inmates will work and which types of work, if any, will be compensated at which pay grade. But once an inmate’s work is assigned a pay grade and evaluated by his supervisor, the rules made clear that the inmate is entitled to the pay that the supervisor computed. The lieutenant had no discretionary right to change pay that was vested.

Besides, the court said, “if as Mr. Douglas claims, Lt. Barker unilaterally altered Mr. Douglas’s wages out of racial animus, Lt. Barker’s conduct, even if discretionary, “cannot be said to be based on the purposes that the regulatory regime seeks to accomplish.”

Douglas v. United States, Case No. 14-11444 (11th Cir. Feb. 29. 2016)

PLEA BARGAINING IS “A MONSTER”

Another respected federal judge sharply criticized the criminal justice system recently, focusing primarily on plea bargaining.

“We created this monster and it’s taken on a life of its own,” U.S. District Judge Jed Rakoff (S.D.N.Y.) said during a symposium on crime at John Jay College of Criminal Justice on Feb. 25. He said even in the Southern District of New York – a fairly progressive federal court – his judicial colleagues think sentencing offenders to long prison terms is fair.

Judge Rakoff said he’s seen the system change in the past few decades, from a time where 15 percent of federal criminal cases went to trial to only 3 percent currently. He called the plea bargaining process a “system of totally secret justice” where prosecutors hold “all the cards” and are able to get a vast majority of defendants to plead guilty to charges when faced with extremely long sentences imposed through sentencing guidelines or mandatory minimums.

Julie Seaman, a law professor and president of the Georgia Innocence Project, told the symposium it’s “completely rational for an innocent person to plead guilty because there is so much risk involved in going to trial.” The plea bargaining is done behind closed doors, and “because it’s so totally untransparent,” Judge Rakoff said, it will “inevitably going to lead to some serious mistakes.”

Rodney Roberts, a New Jersey man who pled guilty to a crime of which he was exonerated (only after serving 17 years in prison), said he faced a life sentence if convicted at trial. He said, “Most people ask, ‘What would make an innocent person plead guilty?’ Most people say, ‘Oh I wouldn’t have done that. I would have fought for my innocence.’ My response is always the same, I say, ‘I hope you’re never in that situation.’”

Roberts called it an “assembly-line” process where his overworked public defender coerced him into to take a deal. “I thought, ‘This is the only guy who is on my side,’ if he’s telling me this, then what chance do I have?” he said.

Judge Rakoff said he decided to speak out a few years ago after thinking about all the cases where he was encouraged to impose increasingly longer sentences on low-level criminals. He said the judicial code encourages judges to speak out, but not enough judges do so. “It’s very worrisome to me,” he said. “Who is going to judge the judges? It will be history …”

Wisnieski, “A ‘Draconian’ System Where the Innocent Plead Guilty,”
The Crime Report (Feb. 26, 2016)

WHAT’S YOURS IS MINE …

“Possession” can be a slippery concept. Last week, the 8th Circuit made it a bit slipperier.

Patrelle Green-Bowman and three others were riding in a car stopped by police. A shotgun lay on the back seat, wrapped in Patrelle’s jacket. Patrelle, having a criminal record, was convicted of being a felon-in-possession.

Patrelle argued on appeal that the government had not proved that he – as opposed to other folks in the car – possessed the shotgun. The 8th Circuit rejected his defense. “As we have repeatedly explained,” the Court said, “more than one person may possess a thing. And that remains true even though the government focused on Green-Bowman and did not tell the jury a story about someone else possessing the gun along with him. Without evidence someone else had exclusive control over the shotgun, the presence of other people who might have possessed the weapon does not prove Green-Bowman did not also possess it.”

Of course, the Court said, the fact that Patrice’s jacket was wrapped around the scattergun also helped convince the jury he had control over the weapon.

United States v. Green Bowman, Case No. 14-2826                                    (8th Cir. Mar. 2, 2016)

YOU MUST ACT NOW

The late Ed McMahon used to hawk Colonial Penn Life Insurance to older people, warning sternly that “you MUST act now.” Chris McCoy wishes Ed had told him that.

Chris was convicted on a guilty plea, entered before a magistrate judge. Later, he filed a § 2255 motion alleging all sorts of issues. He won the right to a hearing, but his 2255 was ultimately denied.

However, at about the same time, the 7th Circuit ruled in United States v. Harden that the law didn’t let magistrate judges accept guilty pleas. Relying on Harden, Chris filed a motion to set aside his 2255 judgment.

Last week, the 7th Circuit said, “too little, too late.” The Court noted that “a § 2255 appellant cannot raise for the first time on appeal a claim not presented to the district court in the § 2255 proceedings below” unless he can show cause and prejudice, that is, a good reason for raising the issue before and a showing that the issue had an impact on his case.

Chris claimed that Harden was a complete change in the law that was completely unexpected. The 7th Circuit disagreed. It said the “Harden decision on which McCoy bases his claim was issued a full two weeks before the hearing in the district court on his § 2255 motion. Harden was not an obscure, unpublished order dealing with a minor legal matter in a distant district. Rather, it was a published decision of this court that originated from the same district and even the same judge as McCoy’s case.”

Chris should have amended his 2255 motion as soon as was issued.  Trying to reopen the case on a Rule 60(b) motion left Chris a day late and a dollar short.

United States v. McCoy, Case No. 14-2741 (7th Cir. Mar 2, 2016)

TAKE YOUR TIME

With retroactivity of Johnson v. United States pending before the Supreme Court in Welch v. United States, more than a few people doing time under the Armed Career Criminal Act find themselves between a rock and a hard place.

Johnson was decided June 26, 2015. Under 28 U.S.C. § 2255(f)(3), inmates have one year from that date to file for relief as a result of Johnson’s holding. That one-year period runs from last summer, not from whatever date in the future that Johnson is held to be retroactive.  Dodd v. United States, 545 U.S. 353 (2005).

So a lot of people who need permission to file a second-and-successive 2255 motion are filing now, to get in line for approval whenever Welch is decided. However, 28 U.S.C. § 2244(b)(3)(D) says a Court of Appeals “shall grant or deny the authorization to file a second-or-successive application not later than 30 days after the filing of the motion.” So if someone files now, the Court would have to act the motion before the Supreme Court decides Welch, meaning that the second-or-successive application is doomed.

That is, it’s doomed unless – as the 11th Circuit held last week – “shall” doesn’t really mean “shall.”  Citing a Supreme Court decision about a different statute, the 11th Circuit said “[t]hough ‘shall’ generally means ‘must,’ legal writers sometimes use . . . ‘shall’ to mean ‘should,’ ‘will,’ or even ‘may’ … We hold that ‘shall’ in § 2244(b)(3)(D) indicates a preference for a decision within 30 days but does not mean ‘must’ in all circumstances.”

Seven other circuits have held the same. Only the 3rd, 5th, 8th and D.C. circuits are excluded, because the question has not yet arisen there.

What the holding means is that a second-and-successive application raising Johnson will be held in abeyance until Johnson’s retroactivity is settled, regardless of the 30-day clock in the statute.

In re Anthony Johnson, Case No. 16-10011 (11th Cir. Feb. 26, 2016)

COULD SUPREME COURT NOMINEE BATTLE HELP PASS CRIMINAL REFORM?

The Sentencing Reform and Corrections Act of 2015 (which some call “Sriracha”) now before the Senate as S. 2123, and before the House as H.R. 3713, did not advance last week. H.R. 3713 picked up two more cosponsors, Democrats, from Ohio, Illinois and Florida. The Senate bill remains at 28 cosponsors, while the House measure has 59.

However, Sen. Mike Lee (R-Utah), one of the sponsors of Sriracha, suggested in the conservative Daily Signal recently that the Senate fight over the next Supreme Court nominee could help the chances of a criminal justice reform overhaul passing Congress this year. Sen. Lee said, “We in the Senate naturally want to find areas where there is significant bipartisan agreement, and this is one of them. The fact we disagree in some areas makes it much more important for us to pass bills like the Sentencing Reform and Corrections Act, and in that respect, it makes it more likely we will.”

Former Attorney General Michael Mukasey – already a Sriracha supporter – wrote last week in The Hill, a newspaper covering Congress, that he was one of “the original supporters of the 1990s ‘tough on crime’ laws. After decades of enforcing them, I … now recognize many provisions, like overly harsh sentencing, went too far … The Sentencing Reform and Corrections Act recalibrates sentencing policy to meet the needs of the 21st century. Lowering mandatory minimum sentences for low-level crimes will reduce unnecessary incarceration. This will allow us to better direct law enforcement resources to arresting, prosecuting, and punishing the most serious and violent criminals.”

The Sunlight Foundation, an organization that monitors Congressional lobbying, reported last week that nearly 30 organizations spent over $27 million to influence Sriracha in 2015. The groups included the National Association of Assistant United States Attorneys – which paid a lobbyist $60,000 last year to fight Sriracha – and others like the American Civil Liberties Union, NAACP, Starbucks, Gun Owners of America and the United Methodist Church. Sunlight Foundation said, “Due to vague disclosure laws, it is impossible to pinpoint exactly how much these groups are spending to specifically influence the Sentencing Reform Act. But we do know these organizations are powerful players in Washington …”

Much of the recent battle over criminal justice reform has centered around Republican attempts to strengthen the mens rea requirement. Writing in the National Law Journal last week, two experienced criminal defense attorneys said “it may come as a surprise to many in the bar, but some legislators in Congress, at the strong urging of federal prosecutors and even members of the media, are balking at bipartisan legislation aimed at ensuring a default intent requirement kicks in where a federal criminal law’s intent requirement, or mens rea, is unclear or absent.  The question of intent, of course, is always crucial.  That is one important experience we have witnessed in our combined 55 years as criminal defense lawyers.  From working as appointed counsel for the poor, to representing people accused of every sort of crime, we have seen first-hand the steady erosion of the intent requirement.”

Legal Information Services Associates provides research and drafting services to lawyers and inmates. With over 20 years experience in post-conviction motions and sentence modification strategy, we provide services on everything from direct appeals to habeas corpus to sentence reduction motions to halfway house and home confinement placement. If we can help you, we’ll tell you that. If what you want to do is futile, we’ll tell you that, too.

If you have a question, contact us using our handy contact page. We don’t charge for initial consultation. 

Would you like a copy of this newsletter in PDF format?  Click here.

Vol. 2, No. 9

This week:

Innocence is not Irrelevant

A Break-Even Week For Amendment 782 Motions

Judge Blasts Guidelines

 Where You Are Really Matters on Rule 35

Nothing New About Descamps: 8th Circuit Denies Retroactivity

Quiet Week For Sentencing Reform

INNOCENCE IS NOT IRRELEVANT

A 1979 law review essay criticizing habeas corpus practice in America was famously entitled Is Innocence Irrelevant? Collateral Attacks on Criminal Judgments. Last week, the 4th Circuit answered that question, insofar as waivers are concerned.

Richard Adams found convenience stores to be convenient places to get money. Using a gun, he robbed a string of them. He was charged with eight counts, including being a felon in possession of a gun in violation of 18 U.S.C. § 922(g) (“F-I-P”), due to some prior North Carolina drug trafficking convic-tions. Like most defendants, he signed a plea agreement in which he waived the right to file any appeal or Sec. 2255 motion.

A few years later, the 4th Circuit handed down United States v. Simmons, holding that a lot of hybrid North Carolina drug convictions that had looked like felonies were really misdemeanors. All of a sudden, Richie’s prior felonies were no longer felonies, meaning that he was actually innocent of being a felon-in-possession. He filed a Sec. 2255 motion, asking that that one conviction be vacated. The Government argued that his waiver meant that he could not do anything about the F-I-P count.

Last week, the 4th Circuit said Richie’s waiver did not keep him from showing he was innocent. The Court said, “We will refuse to enforce an otherwise valid waiver if to do so would result in a miscarriage of justice. A proper showing of ‘actual innocence’ is sufficient to satisfy the ‘miscarriage of justice’ requirement. Such a showing renders the claim outside the scope of the waiver.”

The district court had complained that Adams could not show he was prejudiced by the F-I-P conviction, because without it, the court would have given him the same sentence. The Court of Appeals didn’t think much of this reasoning, noting that “the government wisely does not press this argument on appeal. Felony convictions carry a myriad of collateral consequences above and beyond time in prison, including the possibility that a future sentence will be enhanced based on the challenged conviction, the possibility of using the conviction for future impeachment, and societal stigma. Because an erroneous conviction and accompanying sentence, even a concurrent sentence, can have significant collateral consequences, the fact that Adams’s sentence would not change does not bar his claim.”

United States v. Adams, Case No. 13-7107 (4th Cir.  Feb. 19, 2016)

A BREAK-EVEN WEEK FOR AMENDMENT 782 MOTIONS

Two Court of Appeals decisions last week on Sec. 3582(c)(2) motions split the ticket for defendants.

When the dust settled in 1998, Charles Robinson was convicted of three drug-trafficking counts, with a Guidelines range of life. The court couldn’t give him life on the counts of conviction, so it did what it could – sentencing him to the max of 40 years on two of the counts, and the max of 20 years on the other, all consecutive to each other. It was 100 years – as close to life as the judge could get.

Thirteen years later Amendment 782 to the Guidelines retroactively reduced the base offense level for Charles’ crimes from 43 to 42. The effect was to change the recommended guidelines sentence from life to 30 years to life. When Charles filed for a sentence reduction, the judge reduced his sentence, but thought he had to keep the sentences consecutive. So Charles got 30 years on each of two counts, and kept 20 years on the third – with all three sentences still running wild – for an 80-year sentence.

Last week, the 7th Circuit reversed. It explained that when Charles was sentenced, “his recommended guideline sentence was longer (life, as we said) than the maximum permissible sentence on any one count. The judge thus had to make the sentences on the individual counts consecutive in order to get as close to a life sentence as he could. As a result of Amendment 782, however, the low end of the defendant’s guidelines range — 30 years — dropped below the statutory maximum for any single count (40 years), and if a judge wants to sentence a defendant at the bottom of the new guidelines range he can do so by imposing sentences not exceeding 30 years on each count and making all the sentences run concurrently, as authorized by U.S.S.G. § 5G1.2(c) – 80 years is not the floor.”

Things didn’t work out as well for Eric Smith in the 6th Circuit. When he was sentenced in 1994, he qualified as a career offender under Guidelines Sec. 4B1.1. However, his Guidelines level under the drug-quantity table was higher, so the court applied Sec. 2D1.1, and gave him 30 years.

Eric applied for a reduction under Amendment 782, but last week, the 6th Circuit shot him down. Noting that the career-offender offense level applies only when it is greater than the otherwise applicable offense level, the Court did the math. “Smith’s career-offender offense level – both at his sentencing and under current law – is 37. If Amendment 782 had been in effect at Smith’s sentencing, his drug-trafficking offense level would have been 34, which produces a Guidelines range of 262 to 327 months when combined with Smith’s criminal history category. Because 37 is greater than 34, the district court would have applied the career-offender offense level if Amendment 782 had been in effect at Smith’s sentencing. An offense level of 37 combined with Smith’s criminal history category of VI produces the same Guidelines range that the district court applied at Smith’s sentencing: 360 months to life.”

United States v. Robinson, Case No. 15‐2091 (7th Cir.  Feb. 22, 2016)

United States v. Smith, Case No. 15-5853 (6th Cir.  Feb. 25, 2016)

JUDGE BLASTS GUIDELINES

“So much of sentencing discretion is vested now in the U.S. Attorney’s Office,” Senior U.S. District Judge John Coughenour (W.D. Washington) said in a magazine article last week. “By their charging decisions, they can tie the hands of the sentencing judge, particularly on mandatory minimums. And [prosecutors’] discretion, by the way, is exercised in darkness.”  By that, he suggests that prosecutors can charge defendants under any statute they choose, and their charging decisions are unreviewable.

If that statute carries a hefty minimum sentence, the judge cannot lighten the punishment. “What we do,” Judge Coughenour said, referring to judges, “we do out in the sunlight, and we have to be subject to appellate review. We have to explain ourselves. We have to endure press reaction to what we do.” Nobody reviews the U.S. attorney’s decisions. “In fact,” says Coughenour, “we are precluded from reviewing those charging decisions. And here you have people who are put on the bench by the president of the United States and confirmed by the United States Senate—presumably for their judgment. I mean, that’s why they call it ‘judging’.”

A former AUSA, Mark Osler – a law professor who worked as a prosecutor in Detroit in the 1990s – agreed: “The whole structure is still guidelines-focused … That baseline seems so objective. It’s a number, and there’s this presumptive objectivity when you’re looking at something that says, ‘121 months.’ Because it’s so specific, it has this veneer of science around it. Where, in reality, it’s pretty much just made up.”

Van Meter, “One Judge Makes the Case for Judgment,” The Atlantic (Feb. 25, 2016)

WHERE YOU ARE REALLY MATTERS ON RULE 35

Everyone knows that the three most important factors in real estate are location, location, location. It turns out the same is true for defendants wanting to get Rule 35 sentence reductions.

The Government uses two mechanisms to reward cooperating defendants. They can either get a reduction at sentencing for substantial cooperation, a Government motion under U.S.S.G. Sec. 5K1.1, or – if the assistance comes later or is not complete by sentencing – they get resentenced to less time when the Government makes a motion under Federal Rule of Criminal Procedure 35(b).

Last week, the United States Sentencing Commission released a 42-page study of the use of Rule 35(b) motions. The report, which reviewed nearly 11,000 Rule 35(b) reductions over the last six years, found that

• Rule 35(b) sentencing reductions are used relatively rarely, although a few districts use them often.

• Most defendants receiving a Rule 35(b) reduction were originally sentenced within their guideline ranges. This suggests that courts rarely depart or vary for reasons other than substantial assistance with this group of defendants.

• Most defendants receiving a Rule 35(b) reduction were convicted of a drug trafficking offense with a mandatory minimum sentence.

• Rule 35(b) reductions generally provide less benefit than do Sec. 5K1.1 substantial assistance departures. This is true whether the Rule 35(b) sentencing reduction is compared to the 5K1.1 substantial assistance departure in terms of the ultimate sentence length or by the percentage extent of the reduction from the original sentence.

• Rule 35(b) sentencing reductions are usually less beneficial than 5K1.1 departures, but defendants who get both a 5K1.1 departure and a Rule 35(b) reduction enjoy the largest overall reduction in their sentences, regardless of how that reduction is measured.

• Defendants sentenced in jurisdictions that primarily use Rule 35(b) reductions overall receive less benefit for their substantial assistance than do those in jurisdictions that rely primarily on 5K1.1 departures or a combination of Rule 35(b) reductions and 5K1.1 departures.

U.S. Sentencing Commission, The Use of Federal Rule of Criminal Procedure 35(b) (February, 2016)

NOTHING NEW ABOUT DESCAMPS: 8TH CIRCUIT DENIES RETROACTIVITY

In 2005, a jury convicted Will Head-bird of being a felon-in-possession, and applied the Armed Career Criminal Act because of his prior felonies. Headbird was sentenced to 327 months in prison. Nine years later, Headbird argued that the Supreme Court’s 2013 decision in Descamps v. United States meant that his prior convictions were not violent, and that his sentence should be cut to 10 years.

Last week, the 8th Circuit declared Headbird’s motion was too late, because Descamps did not create a newly recognized right that applied retroactively to 28 U.S.C. Sec. 2255 cases.

Sec. 2255(f)(3) gives inmates one year to file a 2255 after the Supreme Court decides a case announcing “new rule” that “breaks new ground or imposes a new obligation on the states or the federal government.” A case like Descamps announces a new rule if the “result was not dictated by precedent,” that is, if the case’s outcome would not have been “apparent to all reasonable jurists.” Rules that just apply an existing principle to a new set of facts typically do not constitute new rules.

The 8th Circuit found that Descamps just applied existing general principles governing the categorical and modified categorical approaches to indivisible statutes. The Supreme Court said its Descamps opinion was “all but” resolved by prior decisions. Thus, the 8th Circuit said, Headbird’s motion does not rely on a right that was “newly recognized” by the Supreme Court, and was much too late.

United States v. Headbird, Case No. 15-1468 (8th Cir.  Feb. 19, 2016)

SENTENCING REFORM STALLED FOR NOW

Hardly anything happened on Capitol Hill last week to advance the Sentencing Reform and Corrections Act of 2015, now before the Senate in S. 2123, and before the House in H.R. 3713. H.R. 3713 picked up three more cosponsors, Democrats from Ohio, Michigan and Colorado. The Senate bill now has 28 cosponsors, while the House measure has 56.

Debate continued unabated in the press, however. An article in the Wall Street Journal last week by a criminal law professor argued that “relatively few prisoners today are locked up for drug offenses.” Of state prisoners, only “about 16%, or 208,000 people, are incarcerated for drug crimes. Of those, less than a quarter were in for mere possession … Critics of “mass incarceration” often point to the federal prisons, where half of inmates, or about 96,000 people, are drug offenders. But 99.5% of them are traffickers. The notion that prisons are filled with young pot smokers, harmless victims of aggressive prosecution, is patently false.”

The New York Times, however, published a letter last Wednesday from the presidents of the African American Mayors Asso-ciation and the National Organization of Black Law Enforcement Executives, calling for “Congress to stop dragging its feet” on passing sentencing reform. The day before, the Salt Lake Tribune ran an op-ed article supporting sentence reform. And last Friday, the Lincoln, Nebraska, Journal Star demanded that Congress fix “ridiculous sentences.”

The Journal-Star editorial was sparked by a remarkable sentencing Feb. 12 in Lincoln federal court. U.S. District Judge John Gerrard roundly criticized the 10-year sentence he was giving to a nonviolent, recovering meth user. “The only reason I’m imposing the sentence that I am imposing today is because I have to,” he told the defendant. “That’s what Congress mandates.” The judge called the defendant “Exhibit A for why Congress should pass the Smart on Crime Act.” Last June, in a similar case, he called another defendant the poster child for it. In both of the cases, Judge Gerrard – a former Nebraska Supreme Court justice – said the sentence didn’t fit the crime. “There should be imprisonment,” he said, “but 10 years in cases like these is ridiculous, draconian even.”

Legal Information Services Associates provides research and drafting services to lawyers and inmates. With over 20 years experience in post-conviction motions and sentence modification strategy, we provide services on everything from direct appeals to habeas corpus to sentence reduction motions to halfway house and home confinement placement. If we can help you, we’ll tell you that. If what you want to do is futile, we’ll tell you that, too.

If you have a question, contact us using our handy contact page. We don’t charge for initial consultation. 

Would you like a copy of this newsletter in PDF format?  Click here.

Vol. 2, No. 8

This week:

Like This, Not Like That

Federal Judge Issues Order on Ineptitude

Once and Future Sentences

You’re Entitled To Your Own Opinion – Just Not Your Own Facts

BOP to Sentencing Commission – ‘Drop Dead’

Quiet Week For Sentencing Reform

LIKE THIS, NOT LIKE THAT

Jackie Mize wanted to sell oxycontin with his sons. Intending to do it right, he went to Florida to observe a large-scale opiate “doctor shopping” enterprise run by Trent Bussell. Like Samsung copying the iPhone, Mr. Mize went back to Tennessee to mimic Bussell in his own operation.

The Mizes got caught. At their trial, the government introduced a lot of evidence about how the Bussell conspiracy worked in order to explain to the jury how the Mizes operated.

Last Thursday, the 6th Circuit reversed their conviction, finding one of the rarest of all animals: a variance between the indictment and proof that prejudiced the Mizes. The Court of Appeals said, “We understand why the government did what it did — the theme of its case was that Defendants were inspired by the Bussell conspiracy to create their own conspiracy operating in a substantially similar manner. But … the government could have easily explained to the jury that this case involves a conspiracy which was formed by Jackie Mize and that the idea for the conspiracy originated when Jackie learned of the Bussell conspiracy. That was really all that needed to be said about the Bussell conspiracy. Instead, the extensive proof presented by the government on the Bussell conspiracy likely distracted the jury from the relevant issues—all to Defendants’ prejudice.”

United States v. Mize, Case No. 13-6558 (6th Cir. Feb. 18, 2016)

FEDERAL JUDGE ISSUES ‘ORDER ON INEPTITUDE’

Judges tend to give their orders plain vanilla titles, like Opinion and Order. But a recent order issue by a federal judge in Houston shows that titles don’t have to be bland.

Judge Lynn N. Hughes, known for being plainspoken, was unhappy with the circuitous effort by a Washington, D.C., DOJ lawyer to obtain a transcript from the case, one that involved a suspect accused of providing material support to Islamic State. In his Order on Ineptitude, the Judge said, “If the pretentious lawyers from ‘main’ justice knew what they were doing – or had the humility to ask for help from the United States Attorney for the Southern District of Texas – it would not have taken three days, seven telephone calls, three voicemail messages, and one snippy electronic message for them to indirectly ask the court for assistance in ordering a transcript.”

Some observers – probably those who had dealt with “main” justice before – found it funny. Others, like the online service Litigation Daily, whined that Judge Hughes had acted like “a bully” in “his shameful treatment of [the] Justice Department lawyer.”

‘Main’ Justice declined to comment.

Federal Judge Issues ‘Order on Ineptitude’, Wall Street Journal (Feb. 10, 2016)

ONCE AND FUTURE SENTENCES

Two courts grappled with consecutive sentences last week, leaving defendants 1-and-1 on the issue.

In one case, Heriberto Almonte-Reyes was sentenced for drugs in Puerto Rico. At the time, everyone knew he had a money laundering case going on in Atlanta. The Puerto Rico federal court sentenced him to 120 months, consecutive to anything he might get in Georgia.

The Georgia federal court later gave him 87 months, but made it concurrent with the earlier sentence. Herbie appealed the Puerto Rico sentence. The government agreed the later sentence should make everything concurrent, but complained that Herbie should have filed a BP-9 or habeas corpus instead.

The 1st Circuit ruled Herbie’s sentences should be concurrent, holding that a district court has no power to order a sentence run to consecutive to another one that does not yet exist. As for the government’s suggestion to let the BOP handle it, the Court of Appeals noted that “it is not a foregone conclusion that Almonte-Reyes will be considered eligible for relief through those alternative mechanisms … [and] it cannot be that the possibility of future success on habeas would moot [his] direct appeal of his sentence.” Anyone who has ever filed a BP-9 would agree.

Meanwhile, in Illinois, drug dealer Harold Lacy was facing unrelated state charges when he got sentenced to 168 months in federal court. Under his plea agreement, the government was to recommend the 168-month sentence, which it did. But then, the AUSA told the court “there’s a pending case in Macon County right now, and the State’s Attorney has asked us to ask you to run the sentences consecutive … As a courtesy to a fellow prosecutor, I’m relaying their request to you.” The judge was glad to oblige, ruling that Lacy’s federal sentence would be consecutive to any state sentence that might be imposed.

In his plea agreement, Lacy waived all appellate rights, so the 7th Circuit threw out his appeal of the Government’s trickeration. But it was concerned:

“Lacy’s appeal of his sentence is foreclosed by his waiver, and thus we must dismiss the appeal. Nevertheless, the consecutive sentence gives us pause. Lacy’s state crime was unrelated to his federal heroin conviction, so we would not question the substantive decision to impose a consecutive sentence. But the impetus for the consecutive sentence — extending a courtesy to a state prosecutor—was not a proper sentencing consideration.”

United States v. Almonte-Reyes, Case No. 13-1934 (1st Cir. Feb. 18, 2016)

United States v. Lacy, Case No. 15‐2740 (7th Cir. Feb. 17, 2016)

YOU’RE ENTITLED TO YOUR OWN OPINION – JUST NOT YOUR OWN FACTS

A principal goal of the Sentencing Reform and Corrections Act of 2015, which would lower penalties for many drug offenses, is to reduce mass incarceration in the United States. The most popular explanation for the U.S.’s relatively high imprisonment rate is the ferocity of federal drug law enforcement. Countries that have decriminalized all drug possession are often believed to offer an alternative policy that reserves prison mainly for offenders convicted of rape, homicide and other serious non-drug crimes.

The truth is more complicated, according to an analysis of international prison data released last Thursday. While the U.S. has a huge inmate population by international standards, the percentage of prisoners serving time for drugs is just 20%, putting the U.S. in the middle of a pack of 10 developed Western countries. The numbers range from a low of 12% for Australia to 39% for Italy.

The reason, according to the study, is that federal prison is unique among U.S. correctional systems. Most federal inmates are not violent, and almost half are serving time for drug-related offenses. In state prisons – which house 87% of U.S. inmates – increasing sentences for violent crimes while cutting drug sentence would worsen mass incarceration. But in the small, atypical federal prison system, the report found, the Senate’s approach should have the opposite effect.

Another report last week by Brookings Institution argued that fewer than half of federal drug offenders are involved with organization or management of the drug trade. Most are low-level offenders – street-level dealers, brokers, couriers or mules – “who play who play a relatively low-level role in drug distribution.” The report concludes that “the social and economic impact of incarceration [is] substantial and well documented. As debate on criminal justice reform continues, lawmakers must ask themselves whether low-level drug offenders pose such a danger to public safety as to merit additional time behind bars.”

Humphreys, Drug Offenders in U.S. Prisons: An International Comparison (Feb. 18, 2016)

Galston and McElvein, Criminal Justice Reform: The Facts About Federal Drug Offenders, Brookings Institution (Feb. 13, 2016)

BOP TO SENTENCING COMMISSION – ‘DROP DEAD’

Just about everyone at last week’s U.S. Sentencing Commission hearing on “compassionate release” agreed that the system is “broken.”

Except the BOP. The Bureau told the USSC that its implementation of 18 USC Sec. 3582(c)(1) is in good shape. After all, only 11 inmates died while waiting for BOP action on their compassionate release requests last year. The agency granted about 200 of 3,000 requests (about 7%) since 2013, 31 alone in the last two months.

The BOP witnesses told the Sentencing Commission that the decision whether to recommend an inmate for a compassionate release was solely the BOP’s right, and the Commission should not be sticking its nose into that process by adopting guidelines. For that matter, the BOP said, it rejected the critical report of the DOJ inspector general, who found in 2013 that the Bureau “poorly managed” the program.

Several USSC members, –– notably Judge Charles R. Brayer – did not react well to the BOP reserving for itself whether to decide to recommend people for release. The Judge complained that the BOP release “process takes so long that … people die, quite simply.” He demanded to know “why is it that BOP is particularly well suited to assess impact on the community” in compassionate release cases. Why shouldn’t courts have input on it instead of the BOP?”

Instead of the USSC taking control of the program and giving the courts clear instructions on how to act, BOP witness Jonathan Wroblewski suggested the Commission bring its guidelines into line with the BOP’s initiatives so as to prevent “competing policies.”

“I’m not totally sure what the department feels our function would be if you get to set the rules, if you get to do whatever you want,” Commissioner Rachel Barkow told Wroblewski. “I guess I don’t really understand where there’s any effect to the commission’s role in the statute under the department’s reading.”

The USSC will recommend changes in the compassionate release Guidelines at the end of April.

QUIET WEEK FOR SENTENCING REFORM

Congress was not in session last week, instead taking a week off for legislators to spend at home. Regular legislative sessions resume today.

But people were still talking about the Sentencing Reform and Corrections Act of 2015, called “Sriracha” for short. In the Feb. 11 issue of Forbes, contributor Jacob Sullum complained that some senators were misusing the Wendall Callahan case to demonize Sriracha. Sen. Tom Cotton (R-Arkansas) told colleagues in a letter the week before that “the possible release of thousands of violent criminals is a risky and possibly devastating social experiment in criminal leniency … If this grand experiment goes awry, how many lives will be ruined? How many lives will be lost? How many families will be torn apart?”

Sullum pointed out that Callahan – the inmate released early who is now accused of killing three people in Columbus (see “Reform Meets Willie Horton, LISA Newsletter of February 8, 2016) – was not typical of federal drug offenders. Callahan had several violent crime priors, including shooting someone and choking his girlfriend. According to a Bureau of Justice Statistics 2015 report, “the vast majority of federal drug offenders are not convicted of using guns.” Sullum argued that “whatever political games erstwhile reformers may play, the fact remains that federal drug sentences are arbitrary and excessive … Once Congress recognizes that sentences are unjust, forcing current prisoners to complete them is neither fair nor reasonable.”

The Los Angeles Times complained in an editorial last week that Sriracha “is now threatened by exaggerated accusations that it would lead to the release of thousands of violent criminals and by a demand that the legislation include new and controversial language defining the “criminal intent” necessary for a conviction … Criminal intent is an important principle. As Chief Justice John G. Roberts Jr. noted last year, under American law a defendant must be “blameworthy in mind” before he can be found guilty. At some point Congress may want to take up the issue of whether the intent requirement should be clarified. But there is no reason to hold this bill hostage … First things first.”

However, the New York Times published an opinion piece urging Democrats to back the Republican push to include mens rea reform in Sriracha: “It would be a shame,” the Times said, “if partisan distrust kept Democrats from supporting a proposal favored by the right: a measure that would bolster the idea that a criminal conviction should require proof of what lawyers call “mens rea” — literally, a guilty mind. That’s because it can be harnessed to aid some of those who are especially ill treated by the criminal justice system: the poor and racial minorities.”

Finally, last week the National League of Cities – an organization representing cities and towns in all 50 states – announced that passage of federal criminal justice reform is one of its six federal priorities for 2016, a list that includes closing sales tax loopholes, changing the EPA’s clean water rules and raising money for mass transit. NLC calls on Congress to “pass the Sentencing Reform and Corrections Act of 2015 (S. 2123), which adjusts prison sentences for certain non-violent drug offenders, targets violent criminals, and supports recidivism reduction programs. We also support the Second Chance Reauthorization Act (S. 1513/H.R. 3406), which would provide resources to local governments to improve outcomes for individuals returning to communities reducing in recidivism rates.”

Legal Information Services Associates provides research and drafting services to lawyers and inmates. With over 20 years experience in post-conviction motions and sentence modification strategy, we provide services on everything from direct appeals to habeas corpus to sentence reduction motions to halfway house and home confinement placement. If we can help you, we’ll tell you that. If what you want to do is futile, we’ll tell you that, too.

If you have a question, contact us using our handy contact page. We don’t charge for initial consultation. 

Would you like a copy of this newsletter in PDF format?  Click here.

 

Vol. 2, No. 7

This week:

Death of Justice Antonin Scalia

Reading the Fine Print

Branded: International Megan’s Law Signed By Obama

If It’s Quacking …

It Means What It Says

The Week’s Best …

Keep Up On Current Events

Sriracha Is Losing Its ‘Hot’ – Sentencing Reform In Trouble On Capitol Hill

DEATH OF JUSTICE ANTONIN SCALIA

The passing of Associate Justice of the Supreme Court Antonin Scalia last Saturday will undoubtedly throw the politics of the Supreme Court into chaos, as Democrats clamor for the appointment of a ninth (and presumably political liberal justice immediately, while Republicans drag their feet so that the next president may appoint a justice who is presumably more politically conservative.

“Nino” Scalia was a brilliant legal mind, but equally important, he was a funny, insightful and sharp-penned writer.  It is fair to predict that his biting dissent in last year’s gay marriage decision will someday be the lodestone for jurists trying to rein in the constitutional Pandora’s Box that the decision opened.

For those interested in criminal justice, it would be tempting to fall for the shorthand analysis that losing a strong conservative jurist would be good for pro-defendant criminal law decisions.  Life is more complicated than that.  Justice Scalia supported the abolition of mandatory Guidelines in United States v. Booker, but dissented over parts of the opinion that he thought muddled up the standard for appellate review.  He dissented in Alleyne v. United States, but was the author of the decision invalidating the Armed Career Criminal Act “residual clause” for vagueness in Johnson v. United States.  

Justice Scalia’s position on criminal law issues could not be predicted, because his approach was driven more by legal interpretation than political predisposition.  In his gay marriage dissent, Justice Scalia argued that “[t]he world does not expect logic and precision in poetry or inspirational pop-philosophy; it demands them in the law.”  That was his unwavering approach.

The loss of his contributions to Supreme Court jurisprudence weakens the high Court.

READING THE FINE PRINT

Eric Solano was charged with drug trafficking, so he did what over nine out of 10 defendants do: he made a deal. The plea agreement included a paragraph waiving his right to appeal the conviction or sentence.

What’s a little fine print, anyway? Eric soon found out. After he was sentenced, he told his lawyer to file a notice of appeal. His lawyer didn’t bother, so Eric filed a post-conviction motion under 28 U.S.C. § 2255, complaining that his lawyer was ineffective for not following his directions.

In most circuits, Eric’s motion would be a slam-dunk. But even though it admitted that seven other circuits had reached the opposite conclusion, the 7th Circuit stuffed Eric.  “Solano waived any right to appeal his sentence in his plea agreement, and thus may not bring an ineffective assistance of counsel claim for his attorney’s failure to file an appeal, even one he explicitly requested,” the Court of Appeals said. “Once a defendant has knowingly and voluntarily waived his right to appeal both in a plea agreement and in court under Rule 11(b), the Sixth Amendment does not require an attorney to disregard the waiver by complying with the defendant’s request to file an appeal.”

It’s always important to read the fine print.

United States v. Solano, Case No. 15-1290 (7th Cir. Feb. 5, 2016)

BRANDED: INTERNATIONAL MEGAN’S LAW SIGNED BY OBAMA

The good news is that after months of hype about the bipartisan consensus to reform American criminal justice, President Obama finally signed a justice reform bill last week. The bad news is that instead of making the system fairer, the new law makes it more vindictive and petty. Specifically, the International Megan’s Law requires people who have been convicted of sex crimes against minors to carry special passports in which their status as registered sex offenders is marked with conspicuous identifying labels.

The goal is to prevent “sex tourism” by making it harder for people to “hop on planes and go to places for a week or two and abuse little children,” according to the bill’s sponsor. That sounds like a good idea — a wise precaution to prevent perverts from victimizing kids. But like the domestic sex offender registry, the law is premised on a profound misunderstanding of how sex crimes usually happen. Current data from the DOJ indicates that the vast majority of sex abuse victims are attacked not by strangers, but by family members and other acquaintances.

A lawsuit was filed in Federal court in San Francisco last week by four “John Does,” seeking to overturn the law. The suit complains that “for the first time in the history of this nation, the United States Government will publicly stigmatize a disfavored minority group using a document foundational to citizenship: their United States passport.”

Critics of the law point out that if sex offenders can be identified with a scarlet letter on their passport, there’s no telling who will be next.

IF IT’S QUACKING …

Some people get pretty creative with post-conviction pleadings. Certainly, there is no shortage of law library schemes involving the UCC or admiralty, or declarations of sovereign citizenry and the like. But even when a prisoner tries to color within the lines, he may find out that regardless of what he says a pleading is, the court may decide it’s something else.

Steve Johnson filed a motion with his court after a prior Sec. 2255 motion was denied. He called it an “Independent Action in Equity, Pursuant to the District Courts Traditional Equitable Authority to Prevent a Miscarriage of Justice.” The District Court called a second and successive 2255 motion, and threw it out. Johnson, who apparently is a hyperactive filer, appealed.

Last week, the 5th Circuit refused to hear the appeal. It said that “contrary to Johnson’s belief, the label he placed on his pleading was not dispositive. Because Johnson raised a claim grounded in an ‘error[] that occurred at or prior to the sentencing,’ the district court did not err by concluding that his suit arose under § 2255.” For good measure, the Court fined Johnson $100 because he had “ignored this court’s warning against filing frivolous or repetitive filings.” It admonished him “that any future frivolous, repetitive, or otherwise abusive filings will subject him to additional and progressively more severe sanctions.”

In the world of post-conviction motions, if it walks like a 2255 and quacks like a 2255, calling it something else won’t fool anyone.

United States v. Johnson, Case No. 15-40402 (5th Cir. Feb. 5, 2016)

THE WEEK’S BEST

Best Headline: “Judge Slams Prosecutor For Misconduct, Prosecutor Gets Promoted,” Orange County, California Weekly, Feb. 10, 2016

Best Quote: “The district judge said that [the officers’] inaction had not “denied Plaintiff the minimal civilized measure of life’s necessities.” We think that civilization requires more in a life and death situation, and are left to wonder what the judge thinks the minimum level of care is to which a prisoner who is suffering a heart attack is entitled.

Mathison v. Moats, Case No. 14-3549 (7th Cir. Feb. 8, 2016)

Best Admission: “Among my many responsibilities as attorney general of the United States was to do everything in my power to ensure that justice remains blind … I support tough justice, but to be justice at all, only the guilty must be punished. My experience and growing data on exonerations reveal a troubling picture of American justice today, one that requires action.”

Former Attorney General Alberto Gonzalez, “Justice System Wrongs Too Many,” USA Today, Feb. 10, 2016

KEEP UP ON CURRENT EVENTS

Crack entrepreneur Sylvan Abney was due to be sentenced after the Fair Sentencing Act of 2010 – a law that lowered mandatory minimums for cocaine base offenses – was passed by Congress, but a few days before it reached Pres. Obama’s desk.  If Sylvan’s defense attorney had asked for a continuance for just a few weeks more, the FSA would have been law, and Sylvan would have probably been looking at a lower sentence. But counsel did not seek delay, and Sylvan got hammered.

Last week, the District of Columbia Circuit held Sylvan’s attorney was ineffective. Noting that defense counsel all over the country were busy delaying sentencings until the FSA was signed, and noting that it was “reasonably probable” that courts would rule the FSA applied to people convicted before the law was signed but not sentenced until afterwards, the Court of Appeals found that Sylvan’s lawyer has screwed up, and that Sylvan was prejudiced.

The case is interesting for the suggestion that effective assistance of counsel requires lawyers to be aware of more than just what’s going on in the courtroom. They had better be reading the papers, too.

United States v. Abney, Case No. 14-3074 (D.C. Cir. Feb. 5, 2016)

SRIRACHA IS LOSING ITS ‘HOT’ – SENTENCING REFORM IN TROUBLE ON CAPITOL HILL

Advocates of the Sentencing Reform and Corrections Act of 2015, referred to on Capitol Hill as Sriracha, felt a growing sense last week that Congress is unlikely to pass anything this year worthy of being called reform. Some are already muttering about chances being better in 2017.

Reforms that had some momentum a few months ago have run into fierce opposition from law-and-order hawks such as Sen. Tom Cotton, R-Arkansas – who credited mandatory minimum sentences for the 25-year decline in violent crime in a speech on the Senate floor last Tuesday – and Sen. Ted Cruz (R-Texas). Cruz was a supporter of sentencing reform only two years ago, but has now reinvented himself as what The Marshall Project calls “the meanest man” in the presidential race. “We know to an absolute certainty that an unfortunately high percentage of those offenders will go and commit subsequent crimes,” Cruz is saying these days. “And every one of us who votes to release violent criminals from prison prior to the expiration of their sentence can fully expect to be held accountable by our constituents.”  Many lawmakers facing reelection this year can imagine hearing the same alarmist rhetoric coming from the lips (and campaign ads) of their opponents.

Major reform still has its advocates. President Obama has lobbied for justice reform in public and in private (a fact which may make the passage of reform in the Republican-dominated Congress harder). House Speaker Paul Ryan (R-Wisconsin) also supports Sriracha, for reasons that include showing the GOP is not indifferent to the plight of blacks and Hispanics who are ground up disproportionately in the current system. Reform is backed by a strange alliance of conservative and progressive interest groups and by many big-city law enforcement officials. In a Pew Charitable Trusts poll released last week, 79% of Americans support reducing or eliminating mandatory minimum sentences and letting prisoners earn time off by participating in programs like job training and drug counseling.

Supporters of reform plan a last-ditch assault on Capitol Hill, hoping to convince lawmakers that reform is a matter of public safety and fiscal prudence. They are pinning some hopes on Speaker Ryan, on endorsements from law enforcement, and on the fact that everybody is still negotiating. But some advocates say that even if Ryan delivers in the House, it would take a near-miracle to get anything bold through the Senate.

The watering down of Sriracha began last week, hitting two provisions that are most important to many inmates. Politico reported last Monday that S. 2123 authors were preparing several key changes to their bill aimed at mollifying conservative critics. One change involves Sec. 105, which reduced enhanced mandatory minimum sentences for people sentenced under the Armed Career Criminal Act from 15 years to 10 years. That reduction is reportedly being removed from the bill altogether.

The second major change is to Sec. 104 of the bill. That section reduces enhanced mandatory minimum sentences for felons convicted of 18 U.S.C. Sec. 924(c) offenses of possessing a firearm while committing a drug or a violent crime. As it’s now written, the changes are retroactive for current inmates. The amendment being proposed will not permit any retroactivity.

Sen. Dick Durbin (D-Illinois) said last Tuesday, “We want to make sure that at the end of the day we have not lost too many people that we could help. So as we close down one category we may open another.”

Meanwhile, Cotton introduced legislation last week that would require DOJ to disclose recidivism rates for federal inmates released early because of reduced sentences. In his Senate speech, Cotton invoked the spectre of Wendell Callahan, who we wrote about last week:

‘Last month, in Columbus Ohio, a man named Wendell Callahan brutally killed his ex-girlfriend and her two young daughters. A frantic 911 from the scene said the two girls’ throats had been slit. These murders were an atrocity, and they were completely avoidable. Wendell Callahan walked out of federal prison in August 2014. But his original sentence should have kept him in jail until 2018. If he had been in jail instead of on the streets, a young family would be alive today.’

Conservatives argue that the current Senate legislation would increase the crime rate and allow offenders out of jail who are likely to commit additional crimes. The critics say the bill also wouldn’t address “mens rea,” the term for the level of knowledge or intent needed to be proven in order to convict someone of a crime.

Sen. Mike Lee (R-Utah) took a jab at critics of the bill last week. “When politicians argue among themselves, as we so often do about public policy questions, it can be hard to know which side is right, especially when some making arguments are not exactly wedded to the facts, and especially when some who are trying to characterize a bill have not read it,” he said.

Legal Information Services Associates provides research and drafting services to lawyers and inmates. With over 20 years experience in post-conviction motions and sentence modification strategy, we provide services on everything from direct appeals to habeas corpus to sentence reduction motions to halfway house and home confinement placement. If we can help you, we’ll tell you that. If what you want to do is futile, we’ll tell you that, too.

If you have a question, contact us using our handy contact page. We don’t charge for initial consultation. 

Would you like a copy of this newsletter in PDF format?  Click here.

 

This week:

Check the Box

Sentencing Commission To Hold Public Hearing On Compassionate

Release Proposal

Congress Finds Another Way To Demonize Sex Offenders

Fox Hired To Guard Henhouse

It Means What It Says

Paper Examines Change In Thinking On Prosecutorial Misconduct

Sentencing Reform Meets Willie Horton

CHECK THE BOX

When Kaylon Pruitt heard someone pounding on the door, he suspected the worst and met the intruder armed with a shotgun. Actually, it was worse than he suspected: the man at the door was a probation officer, there to check on Kaylon’s housemate. The officer disarmed Kaylon, who was promptly charged with being a felon-in-possession, due to a prior South Carolina burglary conviction.

Kaylon was sentenced to 46 months, the top of his Guidelines range, maybe because authorities found drugs, maybe because while he was in pretrial lockup, he tried to grope a nurse who was giving him a shot. No one was really sure, because the judge didn’t explain her reasons. She just checked the box on the sentencing form that Kaylon’s sentence was within his Guidelines range.

The Second Circuit upheld his sentence last week, but the appeals court took the opportunity to complain that the sentencing form required by law encourages judges to give short shrift to explaining the sentences they impose, and was designed by the Sentencing Commission to drive judges to give Guidelines sentences as the path of least resistance.

The Court complained “that no reasons need be provided for such within‐range sentences; presumably they are considered reasonable because they are within the range. Though we understand that this aspect of the Statement of Reasons form implicates broader issues as well, our focus here is quite narrow: § 3553(c) requires a statement of reasons for every sentence, and the Supreme Court has made it clear that a sentencing judge must never presume that a within‐range sentence is reasonable. Because the Statement of Reasons form undermines both of those mandates, we respectfully suggest … that it be amended accordingly.”

United States v. Pruitt, Case No. 14-1921 (2nd Cir. Feb. 1, 2016)

SENTENCING COMMISSION TO HOLD PUBLIC HEARING ON COMPASSIONATE RELEASE PROPOSAL

The U.S. Sentencing Commission has set a public hearing for Feb. 17 on proposed changes to its compassionate release policy statement.
USSG Sec. 1B1.13, directs the BOP to propose compassionate release for “extraordinary and compelling reasons.” The Commission wants to expand the definition of such reasons to include (1) that the prisoner is 65 years old, has a chronic or serious medical condition from which he will not get better, and has served half his sentence; (2) that the prisoner is 65 and has served the 75 percent of his sentence (at least 10 years); or (3) the death or incapacity of the prisoner’s spouse or caregiver of the prisoner’s child.

United States Sentencing Commission, Agenda of Meeting Feb. 17, 2016 (issued Feb. 4, 2016)

CONGRESS FINDS ANOTHER WAY TO DEMONIZE SEX OFFENDERS

A bill requiring the State Department to identify registered sex offenders with a special mark on their passports passed Congress last Monday and went to President Obama’s desk, who has not yet said whether he will sign the bill.

Called the “Inter-national Megan’s Law”, the bill provides that offenders’ passports contain a “unique identifier” — as yet unspecified – to alert other countries that the passport holder is a registered sex offender.

Critics call the passport designator a scarlet letter. “Who is going to have a unique identifier added to their passport next? Is it going to be Muslims? Is it going to be gays?” asks one civil rights attorney who has fought against sex offender registries.

FOX HIRED TO GUARD HENHOUSE

The Justice Department has named Robert Zauzmer, a long-time Philadelphia AUSA, to head the DOJ pardon office, still buried under a 9,000-petition backlog.

NPR reported last week that “Justice Department leaders said Zauzmer represented a ‘natural choice’ for the pardon job because of his experience training AUSAs all over the country in how to evaluate prisoners’ requests for early release.”

“There were many occasions over the years where I saw these sentences of 20, 30 years, life imprisonment imposed on low-level offenders based on mandatory sentencing laws that troubled me,” Zauzmer told NPR. “Prosecutors are very knowledgeable about these cases and about the laws and about the need to do justice. They are passionate about this, and they are dedicated to doing the right thing and correcting any erroneous sentences that need to be corrected, and I am equally passionate about it.”

IT MEANS WHAT IT SAYS

At the high end of the Guidelines, sentencing ranges sometimes remain the same for several levels. Thus, sometimes happens when the Guidelines change, an inmate’s level drops but his sentencing range remains the same. Shouldn’t he get a break anyway?

Nope. Lawrence McCarroll was convicted of running a Walmart-scale heroin operation. His offense level of 42 set his sentencing range at 360 months to life. The court gave him 396. Now, after Amendment 782, his offense level fell to 40, but with the same 360-life range.

McCarroll argued that the lower level meant he should be resentenced to 360 months. No dice, the 7th Circuit said last week. Under 18 USC § 3582(c)(2), a prisoner can get a sentence cut only if he was sentenced “to a term of imprisonment based on a sentencing range that has subsequently been lowered …” McCarroll’s Guideline offense level fell, but not his sentencing range, making him ineligible for the reduction.

United States v. McCarroll, Case No. 15-2492 (7th Cir. Feb 3., 2016)

PAPER EXAMINES CHANGE IN THINKING ON PROSECUTORIAL MISCONDUCT

Two Fordham law professors have published an article examining accountability for prosecutorial misconduct. The paper, “Prosecutorial Accountability 2.0,” argues that a significant evolution in public thinking over the last 50 years has led to “increasing segments of the public and judiciary now accept[ing] that prosecutorial misconduct is systemic; it calls for systemic remedies; and it includes negligent wrongdoing, abuses of discretion, and failures of supervision.”

Green and Yaroshefsky, Prosecutorial Accountability 2.0, Fordham Law School (Jan. 26, 2016)

SENTENCING REFORM MEETS WILLIE HORTON

If the Sentencing Reform and Corrections Act of 2015, known on Capitol Hill as “Sriracha,” fails to pass this year, thank Wendell Callahan.

Remember Willie Horton? Back in 1988, the convicted murderer, who was doing life without parole, got a weekend furlough from a Massachusetts prison. He ran off, raping and murdering until he was caught in Maryland. Republicans beat Massachusetts Gov. Mike Dukakis – a Democrat running for president – over the head with the story, accusing him of being soft on crime. Dukakis was soundly beaten by George H.W. Bush.

Now Sriracha has Wendell Callahan. In 2007, the federal court in Columbus, Ohio, sentenced Callahan to 150 months for selling crack. Wendell’s time was then cut to 110 months because of the 2007 reduction in the crack Guidelines. Three years after that, another 10 months were lopped off because of the second drug guideline reduction. Wendell was released in August 2014.

A few weeks ago, Wendell was charged with stabbing his ex-girlfriend and her two young daughters to death. The Columbus Dispatch reported that Wendell “likely would have been deep into a 12 1/2-year federal prison sentence if sentencing guidelines for convicted crack dealers had remained unchanged.”

The political website Politico has already cited the triple murder case as a complicating factor in the effort to pass Sriracha. A conservative organization, Americans for Limited Government, is throttling the Wendell Callahan case, attacking Sen. John Cornyn (R-Texas) for working with Sen. Mike Lee (R-Utah) to pass the bill.

Sen. Cornyn, a former Texas judge and attorney general, the number two Senate Republican and a principal Sriracha author, is trying to address fears from other Republicans that passage of the bill could free dangerous offenders and tarnish the party’s law-and-order image.

Acknowledging the skepticism that people like Wendell Callahan help to create, Sen. Cornyn told the New York Times last week that he wants to dispel the myth being pandered by Sen. Ted Cruz and others that Sriracha will not throw open the gates of federal prisons. “Nobody is getting out of jail free, which is some of the characterization that is out there,” Sen. Cornyn said.

Fresh off his surprise win in Iowa, presidential candidate Cruz – who once supported the Smarter Sentencing Act – flipped on the criminal justice issue last fall, voting against Sriracha in the Judiciary Committee because he objected to two aspects of the bill: “retroactivity” and reduced penalties for “criminals who have used a firearm in the commission of a crime.”

Sen. Cruz argues that some of the prisoners released under retro-active provisions of Sriracha may be guilty of violent crimes. “None of us know what those federal prisoners did,” he said last October. “None of us know what the underlying conduct was that prosecutors may have plea-bargained down.” But as a commentator in Reason magazine observed last week, “a prisoner eligible for resentencing gets out early only if a judge decides it’s appropriate, and the judge can consider aspects of his record that may not be reflected in his current sentence.”

Although Sriracha has not yet been scheduled for a vote in the House or the Senate, the House version (H.R. 3713) picked up three additional sponsors last week, two Democrats and a Republican. Still, commentators are generally observing that momentum for the criminal justice legislation is slowing down.

Meanwhile, billionaire Charles Koch — one of Sriracha’s biggest supporters — continues to make the case for it. “You smoke a joint or violate some regulation … get arrested, put in prison and then come out, can’t get a job, so this destroys opportunities and makes the community less safe because you go in — and weren’t really criminals — and you are trying to get a job, so you steal if you can’t,” Koch told donors at the winter meeting of his affiliated political network last week. Koch views changes to the criminal justice system as crucial to putting the country back on the right track.

Senator Orrin Hatch (R-Utah) said in the Wall Street Journal last week that “a default criminal-intent standard is essential because Congress has departed from fundamental legal principles by creating crimes that don’t require proof of criminal intent. Activities like walking a dog in a federal park on a leash longer than six feet, using a surfboard in a federally designated swimming area and using the 4-H Club logo without authorization are all now federal crimes regardless of a person’s intent. If legislators wish to dispense with criminal-intent requirements, my bill forces them to do so explicitly. Too much is at stake to allow congressional inattention, or sloppy drafting, to deny individuals the rightful protections that criminal-intent requirements provide.”

The Wall Street Journal itself editorialized last Saturday that “the necessity of proving that the accused has a guilty mind doesn’t merely apply to white-collar defendants. In June 2015 [] Supreme Court Chief Justice John Roberts wrote, “the ‘general rule’ is that a guilty mind is ‘a necessary element in the indictment and proof of every crime.’” The problem under current federal law is that such precedents aren’t enough to stop prosecutors from exploiting statutes that don’t have an explicit guilty-mind standard. As criminal laws have proliferated, more Americans are indicted for breaking laws that they never knew existed or that were written for purposes far from how prosecutors use them …”

Prominent Democrats also talked up the prospects for sentencing reform during the Democrats’ annual issues conference in Baltimore last week. Congressman Elijah Cummings (D-Maryland) led a session on particulars of criminal justice reform during the retreat. Later, President Barack Obama addressed the issue himself, telling the conference that Congress is not going to get much done this year, but it could effectively address two areas: criminal justice reform and opioids.

Legal Information Services Associates provides research and drafting services to lawyers and inmates. With over 20 years experience in post-conviction motions and sentence modification strategy, we provide services on everything from direct appeals to habeas corpus to sentence reduction motions to halfway house and home confinement placement. If we can help you, we’ll tell you that. If what you want to do is futile, we’ll tell you that, too.

Legal Information Services Associates provides research and drafting services to lawyers and inmates. With over 20 years experience in post-conviction motions and sentence modification strategy, we provide services on everything from direct appeals to habeas corpus to sentence reduction motions to halfway house and home confinement placement. 

If you have a question, contact us using our handy contact page. We don’t charge for initial consultation. 

Would you like a copy of this newsletter in PDF format?  Click here.

This week:

Supreme Court Montgomery Decision Hints At Johnson Retroactivity

EDNY Court Sentences Child Pornography Downloader To 5 Days Of Jail

Obama Administration Pushes Changes In Use Of SHU

Gunning for the Guidelines: First Circuit Rules That Johnson Means Guidelines “Career Offender” Residual Clause Is Unconstitutional

Federal Corrections Task Force Issues Reform Recommendations

No Sriracha Action On Capitol Hill, But Plenty Of Drama

SUPREME COURT MONTGOMERY DECISION HINTS AT JOHNSON RETROACTIVITY

The Supreme Court last week held in that its prior decision declaring automatic life sentences without parole for juveniles unconstitutional – Miller v. Florida – was retroactive to cases that were already final when it was decided.

Last week’s decision is good news for the pending Welch case, in which the Supreme Court must decide whether the 2015 Johnson v. United States (holding that the Armed Career Criminal Act’s residual clause is unconstitutional) should apply retroactively.

The Supreme Court used last week’s opinion to explain its approach to retroactivity. The Court said cases adopting a “substantive rule,” one that sets forth “categorical constitutional guarantees that place certain criminal laws and punishments altogether beyond the government’s power to impose,” would be retroactive. The Court said that when the government “enforces a proscription or penalty barred by the Constitution, the resulting conviction or sentence is, by definition, unlawful. Procedural rules, in contrast, are designed to enhance the accuracy of a conviction or sentence by regulating the manner of determining the defendant’s culpability. Those rules ‘merely raise the possibility that someone convicted with use of the invalidated procedure might have been acquitted otherwise’.”

Applying this rationale to the Supreme Court’s Johnson ruling suggests that it is likely that that decision – which adopted the substantive rule that a crime cresting a substantial risk of harm is not a violent crime – will be declared retroactive when the Supreme Court rules on Welch in the next five months.

Montgomery v. Louisiana, Case No. 14–280 (Jan. 25, 2016)

EDNY COURT SENTENCES CHILD PORNOGRAPHY DOWN-LOADER TO 5 DAYS OF JAIL

Judge Jack B. Weinstein, one of a handful of Federal district judges known for thoughtful sentencing, has sentenced a child porn defendant to 5 days in jail, 7 years of supervised release and about $15,000 in fines and restitution.

In a 100-page Statement of Reasons issued last week, Judge Weinstein – who sits on the Eastern District of New York bench – said that the defendant, R.V., had pled guilty to a single count of possession of child pornography in violation of 18 U.S.C. Sec. 2252(a)(4)(B).  R.V. had never had inappropriate sexual contact with any minor, and expert testimony showed he posed no danger to children. The judge said that in light of his children’s and spouse’s demonstrated need for his presence at home, R.V. should be sentenced to time-served of 5 days. R.V.’s guidelines imprisonment range was 78-97 months.

The judge argued that the “failure to distinguish among the multitude of vectors involved in a sentencing decision is particularly grave in the field of child pornography offenses. To be adjudicated guilty necessarily results in denomination as a sex offender; automatically provided is a lifetime of continuous punishment—being marked as a pariah with severe restrictions on residence, movements, activities and associations. Adding unnecessary, unduly long, periods of incarceration is inappropriate …”

United States v. R.V., Case No. 14-CR-0316 (E.D.N.Y., Jan. 22, 2016)

OBAMA ADMINISTRATION PUSHES CHANGES IN USE OF SHU

In an op-ed column appearing in last Tuesday’s Washington Post, President Obama announced limits to the BOP’s use of segregated and disciplinary housing for investigations and as punishment.

The new policies also dictate that the longest a prisoner can be punished with solitary confinement for a first offense is cut to 60 days from 365 days. The president’s reforms apply to about 10,000 federal inmates serving time in solitary confinement.

A DOJ paper released the same day announced “guiding principles,” including

• limiting the use of the SHU as a form of punishment. Recommended changes include reductions of maximum penalties for disciplinary segregation, a ban on the use of the SHU for low-level offenses, and limitations on the use of “investigative” segregation, including a new requirement that routine investigations be completed within 7 days and all other investigations be completed within 30 days, absent compelling circumstances.

• setting policies to discourage placing inmates in the SHU during the final 180 days of their prison terms; and

• directing wardens to develop institution-specific plans for expanding out-of-cell time for SHU inmates, based on staffing and resource capacity.

How these principles will be implemented by the BOP is not yet clear. As of the end of last week, the BOP had not proposed any changes to its rules on use of the SHU for investigation or punishment.

Department of Justice, Report and Recommendations Concerning the Use of Restrictive Housing – Guiding Principles (January 25, 2016)

GUNNING FOR THE GUIDELINES: FIRST CIRCUIT RULES THAT JOHNSON MEANS GUIDELINES “CAREER OFFENDER” RESIDUAL CLAUSE IS UNCONSTITUTIONAL

Anthony Soto-Rivera was a do-it-yourself tinkerer … or maybe just unlucky. Whatever the reason, he was caught carrying a Glock 23 handgun that fired full auto. That made the pistol a “machinegun” for purposes of 18 U.S.C. Sec. 922(o).

Anthony had prior convictions for drug trafficking and violence. Under Chapter 4B1.1 of the Guidelines, anyone with two prior drug or violent felonies who is convicted of a third such offense is sentenced as a “career offender,” with a much higher sentencing range. A “violent felony” for purposes of the “career offender” guidelines is the same as the definition in the Armed Career Criminal Act.

The district court held that Anthony’s possession of a machinegun was a violent crime under the residual clause. However, while his appeal was pending, the Supreme Court ruled in Johnson v. United States that the ACCA’s residual clause was unconstitutionally vague.
Anthony promptly asked the 1st Circuit to throw out his “career offender” sentence. The Government conceded that Johnson invalidated the “career offender” residual clause, but argued that other language in the Guideline made possession of a machinegun a violent crime.

Last week, the Court of Appeals sided with Anthony. It accepted the parties’ view that Johnson invalidated the “career offender” residual clause without specifically ruling on whether it did. The Court noted that the 11th Circuit has ruled that Johnson did not apply to the “career offender” residual clause, but said the 11th’s reasoning “appears well on its way to becoming a minority view.” The 6th, the 8th and the 10th Circuits have all held that the residual clause in the Guidelines is unconstitutional in light of Johnson. The 1st Circuit left little doubt that, if the Government had not conceded the point in this case, it would have ruled that way as well.

It is entirely possible that the application of Johnson to “career offender” cases will find its way to the Supreme Court. Such review will not happen before the one-year deadline to file for Sec. 2255 relief under Johnson, which falls on June 26, 2016.

United States v. Soto-Rivera, Case No. 14-1216 (1st Circuit, Jan. 22, 2016)

FEDERAL CORRECTIONS TASK FORCE ISSUES REFORM RECOMMENDATIONS

Even as debate on sentencing reform raged last week, some bold recommendations issued from a congressionally mandated blue ribbon panel.

The Charles Colson Task Force on Federal Correc-tions – established by Congress in 2014 due to concerns about the cost and scale of the BOP – issued its report, Transforming Prisons, Restoring Lives, last Tuesday. The report estimated that its recommendations would reduce the federal prison population by 60,000 over the coming years and save over $5 billion.

The recommendations include

• using mandatory minimums for only the most serious drug traffickers and felons, and giving judges more discretion to consider the specific circumstances of each defendant and case when imposing sentence;

• having the BOP “ensure that programming is allocated in accordance with individual risk and needs,” including programming tailored to individual inmate needs and encouraging more and better contact with family; and

• having the BOP give inmates good time for completing “risk-reducing” programs like addiction treatment, cognitive behavioral therapy, educational classes, faith-based programs and other self-betterment activities.

The recommendations are part of Congress’ effort to pass the Sentencing Reform and Corrections Act of 2015.

Charles Colson Task Force on Federal Corrections, Transforming Prisons, Restoring Lives (Jan. 26, 2016)

NO SRIRACHA ACTION ON CAPITOL HILL, BUT PLENTY OF DRAMA

The Sentencing Reform and Corrections Act of 2015 (“Sriracha”) has yet to make it to the Congressional floor for a vote, and some critics are blaming conservatives for stalling efforts to get it there.

Freshman Republican Senator Tom Cotton (Arkansas), described by Politico as a “hawkish upstart,” pushed hard last week to kill Sriracha. Tensions over the bill, that effectively loosens some mandatory minimum sentences, spilled over during a party lunch last week, when Cotton lobbied his colleagues heavily against the legislation.

Cotton later told Politico “it would be very dangerous and unwise to proceed with the Senate Judiciary bill, which would lead to the release of thousands of violent felons. I think it’s no surprise that Republicans are divided on this question … [but] I don’t think any Republicans want legislation that is going to let out violent felons, which this bill would do.” His attempted rebellion against what has up to now been a bipartisan measure led Esquire magazine to run a story with the depressing title, Why Bipartisan Criminal Justice Reform Was Always a Pipe Dream.

On the Presidential campaign trail, some observers are noting that Republican Sen. Ted Cruz (Texas), once a leading Republican advocate of sentencing reform, has repositioned himself as an opponent. Cruz is warning that letting federal prisoners out early will lead to an increase in crime. His reversal is especially startling, one commentator said last week, because the bill that Cruz opposes as dangerously soft on crime is less ambitious than the one he proudly cosponsored in spring 2014. In Reason Magazine online, Jacob Sullum wrote last Monday that “if Congress determines that certain sentences are unjust, it hardly seems fair that current prisoners should be forced to complete them. In any event, retroactivity did not seem to bother Cruz when it was included in the Smarter Sentencing Act, which like Grassley’s bill would allow currently imprisoned crack offenders to seek shorter terms under the rules enacted in 2010. According to Families Against Mandatory Minimums, that provision alone could affect up to 6,500 prisoners. Yet Cruz complains that ‘7,082 federal prisoners would be eligible for release’ under Grassley’s bill.”

The news last week wasn’t all bad. During Thursday’s Republican presidential candidates’ debate – the one Donald Trump skipped – Sen. Rand Paul (Ky.) and Sen. Mark Rubio (Fla.) voiced their support for Sriracha. Paul said, “I think the war on drugs has disproportionately impacted our African-American community. What we need to do is make sure the war on drugs is equal protection under the law and that we don’t unfairly incarcerate another generation of African-American males.”

In Illinois, civil rights and faith leaders are pushing Republican Sen. Mark Kirk to support Sriracha. Kirk, who faces a tough reelection race this year in blue-leaning Illinois, has not yet backed the reform bill.

We’ll report every week on the status of legislation, whether it’s moving forward or just standing still.

Legal Information Services Associates provides research and drafting services to lawyers and inmates. With over 20 years experience in post-conviction motions and sentence modification strategy, we provide services on everything from direct appeals to habeas corpus to sentence reduction motions to halfway house and home confinement placement. 

If you have a question, contact us using our handy contact page. We don’t charge for initial consultation. 

Would you like a copy of this newsletter in PDF format?  Click here.

This week:

Just Sayin’

FBI Admits To Being Child Porn Site Operator

Supreme Court Grants Review Of Another ACCA Case

Are You Disrespectin’ Me?

11th Circuit To Sit On Johnson Second-And-Successive Motions Pending Supreme Court Decision In Welch

Sentencing Commission Seems Focused On Easing Compassionate Release Guidelines

Action On Sentencing Reform Jeopardized By Mens Rea Debate

JUST SAYIN’

Crack cocaine  entrepreneur Lamont Robinson did what 94 percent of all Federal defendants did – he cut a deal. His plea agreement was comprehensive, stipulating criminal history, drug quantity involved in the offense, and agreed-on sentencing range.

The government and Lamont also agreed that, “neither a downward nor an upward departure from the Stipulated Guidelines Range . . . is warranted,” and that “neither party will seek any departure or adjustment pursuant to the Guidelines that is not set forth herein . . . [n]or . . . suggest that the Court sua sponte consider any such departure or adjustment.” (“Sua sponte” means “on its own motion”).

Despite the rather straightforward language in the plea agreement, the AUSA argued in his sentencing memo under that Lamont “was an active, managing member of the” criminal conspiracy and that he “held a managerial role” in the conspiracy. The sentencing judge heard the words “managerial role” and decided to add a 2-level enhancement regardless of what the parties had agreed to.

Lamont cried foul. The government argued it had not asked for the leader/manager adjustment, but instead was just arguing for the high end of the sentencing range. “You know,” the AUSA seemed to smarm, “I’m just sayin’.”

The 2nd Circuit agreed with Lamont’s Sec. 2255 claim that the Feds breached the plea agreement, and sent his case back for resentencing in front of a new judge. The Court said “the government used the Guidelines’ term of art “manager,” in an entirely conclusory fashion, to describe his conduct. Using the terminology of the Guidelines’ provision to characterize [Lamont’s] role, without reference to a single fact supporting that characterization, could have served no purpose other than to call the district court’s attention to the possibility of a role enhancement – in effect, to argue for that enhancement. The government’s disclaimers to the contrary do not insulate its conduct.”

United States v. Robinson, Case No. 13-3683-cr (2nd Circuit, Jan. 15, 2016)

FBI ADMITS TO BEING CHILD PORN SITE OPERATOR

For nearly two weeks last year, the FBI operated one of the Internet’s largest child pornography websites, allowing users to download thousands of illicit images and videos from a government site in the Washington suburbs.

USA Today reported last Friday that the operation — details of which remain secret — was at least the third time the FBI has taken control of a child pornography site but left it online in an attempt to catch users. In each case, the FBI infected the sites with software that enabled agents to identify hundreds of users.

DOJ has acknowledged in court filings that the FBI operated the site, known as Playpen, in February 2015. At the time, the site had over 215,000 users and links to more than 23,000 sexually explicit images and videos, including more than 9,000 files that users could download directly from the FBI.

Previously, agents were told they should not allow images of child porn to become public. The Justice Department has said that once those images leave the government’s control, no one can stop them from being copied and re-copied to other parts of the Internet. Officials acknowledged the risks, but said they had no other way to identify the people accessing the sites.

SUPREME COURT GRANTS REVIEW OF ANOTHER ACCA CASE

The Supreme Court last week granted review of another ACCA case, this one from the 8th Circuit.

The issue may seem arcane, but it’s not. Under the ACCA, anyone caught with a gun after getting convicted of three drug trafficking or violent crimes gets a mandatory minimum 15-year sentence. Four qualifying violent crimes are identified by name: burglary, arson, extortion or use of explosives. However, courts have ruled that the only burglaries that count must contain all of the elements of traditional, common law burglary – entering or staying in a building with the intent of committing a felony.

A lot of people have gotten breaks because some state burglary statutes define “building” too broadly, to include, for example, a car or a boat. If the statute says “building or vessel or boat” (that is, defines the element alternatively), the courts can look at the state court record to see which of the three the defendant broke into. But if the statute only says “building,” and “building” is identified elsewhere in the statute as “structure, car or vessel,” the statute itself is too broad for an ACCA predicate, and courts cannot save it by looking at the state court record.

The central elements of burglary – (1) entering or staying (2) in a building (3) without authorization (4) to commit a felony – have to be proven to a jury beyond a reasonable doubt. But sometimes, definitions are found elsewhere in the criminal code that are treated just as “means” and not elements. Mathis is an 8th Circuit case in which the definition of “occupied structure” in the burglary statute is much too broad for a conviction to be used as an ACCA predicate. However, another Iowa statute defined “occupied structure” alternatively. The issue in Mathis is whether a Federal court has to decide whether a crime counts under the ACCA solely by reading the statute in question, or whether it can shop its way through a state’s entire criminal code for other definitions. Relying on the state’s whole criminal code makes it easier to find that a prior state conviction qualifies as an ACCA predicate.

Mathis will probably be decided by the end of June.

Mathis v. United States, Case No. 15-6092 (Jan. 19, 2016)

ARE YOU DISRESPECTIN’ ME?

Arnaldo Cabrera’s decision to buy a gun for a government informant was not very smart. The judge at HIS felon-in-possession trial did not think much of Arnaldo’s claim that the cops had doctored a recording of the transaction, either.

Arnaldo did not testify in support of his tape-doctoring theory (for which the evidence was tissue thin). At senten-cing, the judge increased Cabrera’s sentence be-cause of his “fantastic” claim that the tape was altered, and because Cabrera did not testify in support of his claim. The judge told Arnaldo that his behavior had “evinced a pretty complete disrespect for the law and for these proceedings generally.”

Last Friday, the 6^th Circuit threw out the sentence, holding that the district judge wrongly punished Cabrera for exercising his 5th Amendment right against self-incrimination by raising his sentence because he had not testified.

The opinion also held that sentencing Cabrera higher for raising the tape-doctoring claim punished him for exercising his 6^th Amendment right to defend himself. A defendant has “the right to challenge the State’s case against him using the arguments he sees fit,” the 6^th Circuit said, and Cabrera “plainly had a right to test the government’s case by raising the arguments he considered meritorious.”

United States v. Cabrera, Case No. 14-5572 (6^th Cir., Jan. 22, 2016)

11TH CIRCUIT TO SIT ON JOHNSON SECOND-AND-SUCCESSIVE MOTIONS PENDING SUPREME COURT DECISION IN WELCH

The 11th Circuit ruled last Thursday it would hold motions filed by ACCA prisoners seeking permission to file a second Sec. 2255 motion raising Johnson until the Supreme Court rules on Welch v. United States.

Earlier this month, the Supreme Court announced it would hear Welch, and decide whether last summer’s ruling in Johnson v. United States would retroactively apply to inmates whose ACCA sentences were already final.

The 11th Circuit already held that Johnson is not retroactive, but – recognizing that the Supreme Court may well overrule it – the Court of Appeals has decided it will sit on motions filed by inmates who want permission under 28 U.S.C. Sec. 2244(b) to file a second and successive Sec. 2255 motion until the Supreme Court rules on Johnson retroactivity in Welch. That decision is expected by June.

In re Anthony Johnson, Case No. 16-10011 (11th Cir. 2016)

SENTENCING COMMISSION SEEMS FOCUSED ON EASING COMPASSIONATE RELEASE GUIDELINES

The U.S. Sentencing Commission has tucked an overhaul to compassionate-release guidelines into the proposed 2016 amendments published Jan. 15 in the Federal Register. The change would substantially expand the possibility for aging or sick inmates to be released early.

The Commission has asked for comments on the new guidelines, along with all of the other proposed 2016 amendments, by March 21, 2016.

The compassionate release proposal creates new avenues for release due to age or sickness. If the language is adopted as written — and it could still change significantly — it would cut a key release threshold from 30 years served to 10 years served. and would acknowledge the merit of compassionately releasing inmates who have previously been ignored or denied. The elderly and sick are high on the list.

Under a sample proposal on which the commission almost begged the public to provide guidance, inmates could get their freedom if they have 18 months or less to live; if they have an incurable, progressive illness; if they have a debilitating injury they would not recover from; or if they are 65 or older and have served at least 10 years or 75 percent of their sentence.

United States Sentencing Commission, Notice Of Proposed Amendments To Sentencing Guidelines, 81 Fed.Reg. 2295 (Jan. 15, 2016)

ACTION ON SENTENCING REFORM JEOPARDIZED BY MENS REA DEBATE

The Sentencing Reform and Correction Act (“Sriracha”) still is on top of a short list of significant legislation Congress might actually pass in this election year, but a Capitol Hill hearing last Wednesday showed just how tenuous even that bill’s chances are in a bitterly divided Congress.

Last week, the Senate Judiciary Committee heard testimony on a narrow but crucial issue that has emerged as the main political obstacle to criminal justice reform: to what degree prosecutors must prove a defendant’s criminal intent in order to win convictions for certain federal crimes.

For some crimes, federal prosecutors must establish the defendant’s willful intent to break the law — his or her mens rea, or “guilty mind,” in its common legal formulation. But many crimes defined in federal statutes and regulations (and no one knows just how many) do not include willfulness as part of the elements of the offense. This means a jury doesn’t necessarily need to be convinced that defendants knew what they were doing was a crime. A coalition of mainly conservative lawmakers and activists are leading an effort to include a willfulness requirement in S. 2123.

Congressman Bob Goodlatte argued last week in Politico, a political news website, that the “U.S. Code currently contains nearly 5,000 federal crimes. Recent studies estimate that over the past three decades, Congress has averaged 500 new crimes per decade. In addition to statutory criminal offenses, there are thousands of federal regulations that, if violated, can also result in criminal liability. Many of these laws and regulations impose criminal penalties on people who have no idea they are violating a law.”

Democratic lawmakers and liberal activists call this a sneak attempt to make it more difficult for the government to prosecute corporations and their executives for crimes against the public welfare. Last Wednesday, the Justice Department told the Judiciary Committee that the “establishment of a default “state of mind,” or mens rea, standard for all existing federal criminal laws … would create massive uncertainty in the law, undermine the enforcement of a multitude of criminal laws, and allow defendants charged with serious crimes – including terrorism, violent crime, sexual offenses, immigration violations, and corporate fraud – to embroil federal courts in extensive litigation and potentially escape liability for egregious and very harmful conduct.”

Dozens of former prosecutors and government officials sent a letter to the Senate leadership last Tuesday supporting Sriracha. According to Roll Call, a legislative newspaper, the letter to Majority Leader Mitch McConnell and Minority Leader Harry Reid focused on improvements it makes to the corrections system. Signers include Michael Mukasey, an attorney general under President George W. Bush, former FBI directors Louis J. Freeh and William S. Sessions, a number of U.S. attorneys and several federal appeals court and district court judges.

A report last Tuesday in Politico said Sen. John Cornyn, Sen. McConnell’s top deputy, has lobbied the majority leader to take up S. 2123 early this year. Politico reported that the bill’s backers say the Senate has to move on criminal justice reform quickly, perhaps as soon as next month, for the measure to have any hope of reaching President Obama’s desk. “The goal is not to get unanimous support,” Cornyn said. “The goal would be to get enough bipartisan consensus so that we could do something important and something the president wants to do, something that Republicans and Democrats want to do.”

Sen. McConnell has not yet agreed to bring the legislation to a floor vote, but his counterpart in the House of Representatives, Speaker Paul Ryan, has said he wants Sriracha on this year’s agenda, and President Obama also expressed his hope the bill would pass in the State of the Union speech earlier this month.

We’ll report every week on the status of legislation, whether it’s moving forward or just standing still.

Legal Information Services Associates provides research and drafting services to lawyers and inmates. With over 20 years experience in post-conviction motions and sentence modification strategy, we provide services on everything from direct appeals to habeas corpus to sentence reduction motions to halfway house and home confinement placement. 

If you have a question, contact us using our handy contact page. We don’t charge for initial consultation. 

Do you want this newsletter in PDF format?  Click here.