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SANDBAGGED
About 10 years ago, Jakeffe Holt was convicted of being a felon-in-possession of a firearm under 18 U.S.C. 922(g)(1). That crime carries a maximum sentence of 10 years, unless the defendant is deemed an armed career criminal under 18 U.S.C. 924(e), which applies to people with three prior violent felonies or serious drug offenses. Then, the punishment is 15 years to life.
Jakeffe got a 200-month sentence. But after Johnson v. United States held in 2015 that the residual clause in Sec. 924(e)(2)(B)(ii) was unconstitutionally vague. Jakeffe filed a collateral attack on his sentence under 28 U.S.C. 2255. The district court had counted a burglary conviction among the three predicate acts. Jakeffe argued that this was a mistake, but the district court disagreed, and upheld his sentence.
While Jakeffe’s appeal was pending, the 7th Circuit ruled that the version of the Illinois burglary statute under which he had been convicted was not a “violent felony” because it does not satisfy the
definition of “burglary” used in Mathis v. United States. All of a sudden, Jakeffe was clearly not an armed career criminal, and he had served more time that the maximum to which he could have been sentenced.
Easy, right? Just send that man home. But, no, the procedure is anything but easy. The 7th Circuit ruled yesterday that because Jakeffe had already filed his one 2255 motion, he’s out of luck. Under the law, a second 2255 is allowed only if the court of appeals certifies that it rests on newly discovered evidence (which Jakeffe’s did not) or “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” 28 U.S.C. 2255(h)(2).
While Johnson was a new rule of constitutional law made retroactive, Jakeffe’s new argument rests on Mathis, which is not. Instead, Mathis just interprets the statutory word “burglary” and “does not depend on or announce any novel principle of constitutional law.” By knocking out the residual clause, Johnson opened the door to arguments based on the limits of the elements clause, the Court said, but it did not declare it unconstitutional.
The problem, the Court said, was that Jakeffe was treating the ACCA as having only two clauses – elements and residual – when it really had three. That third includes as violent crimes “burglary, arson, or extortion [or] involves use of explosives…”
Zakeffe’s burglary conviction was classified as a violent felony under the burglary clause. Nothing in Johnson affects the proper treatment of burglary convictions. So Zakeffe’s second collateral attack cannot rest on Johnson.
If the court of appeals denies a request to file a second or successive application, no one may seek reconsideration or file for certiorari in the Supreme Court. Thus, the Circuit said, it “cannot treat the prosecutor’s supplemental brief as implying a request that we rehear, and rescind, the certificate authorizing a second collateral attack.”
Here, the district court found that Jakeffe’s 2255 relied on the meaning of “burglary” rather than the meaning of the Constitution, and she denied the 2255. The judge acted before the Supreme Court released Mathis, so she did not appreciate that Jakeffe’s burglary conviction had been misclassified when he was sentenced. She did, however, understand that his argument was statutory rather than resting on Johnson or any other retroactive rule of constitutional law.
So Jakeffe, who is undoubtedly innocent of an ACCA enhanced sentence, must do an extra 80 months regardless, because procedure demands it. The 7th did note that whether Jakeffe “might be entitled to relief under 28 U.S.C. 2241, should he pursue that route in the district where he is confined… is a question we need not consider.”
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INTRODUCING “MISS CARRIAGE”
The numbers are compelling and well known. Last year, 97.1 percent of all federal criminal cases were resolved by guilty pleas. And those guilty pleas were overwhelmingly entered only after the government and defendant signed a written plea agreement.
There is nothing inherently wrong with resolving cases through guilty pleas — it reduces the government’s burden to prepare and conduct a trial, reduces the cost of defense for the defendant and court (because most defendants have court-appointed attorneys), lessens the imposition on witnesses, and saves courtroom resources. But in the federal plea bargaining system, prosecutors often strong-arm defendants by offering them dramatically shorter prison terms if they plead guilty, and threatening them – if they go to trial ¬– with sentences that retired Judge John Gleeson of the Eastern District of New York once described as “so excessively severe, they take your breath away.”
Plea bargaining means higher sentences for defendants who go to trial. In 2012, Human Rights Watch reported, the average sentence of federal drug offenders convicted after trial was three times higher (16 years) than that received after a guilty plea (5 years and 4 months).
Most plea agreements contain appeal waivers, promises by the defendant not to appeal except in limited circumstances. It’s one thing to get the defendant to waive the right to appeal decisions and conduct that have already occurred: at least in that case, the defendant can fairly be charged with knowing what has already gone on. But waivers also waive the right to challenge the sentence as long as it falls within the broad range set out in statute. You had a great argument against a 2-level enhancement, but your lawyer left her notes at home? Tough luck to you, fella.
There is a safety valve. Generally, despite the fact the defendant signed an appeal waiver, an appellate court will consider a sentencing issue on appeal to prevent a “miscarriage of justice.” And what is that? It’s sort of like Justice Potter Stewart’s famous concurrence in Jacobellis v. United States : “I know it when I see it…”
There’s some irony to recalling Justice Stewart’s pithy non-definition – which dealt with the definition of pornography – because that’s what today’s case is about. Bill Berríos pled to a child porn production count pursuant to a signed plea agreement, in which (among other things) he waived his right to appeal if his sentence was within the statutory range. When his sentence did not meet his liking, Bill appealed in spite of the waiver.
Not this company – it makes paint. Bill’s PPG was something different altogether.
Yesterday, the 1st Circuit remanded Bill’s sentence on only one of four ground he claimed. Although it disposed of three arguments so summarily that it didn’t even to describe what Bill claimed, the Court stalled on a special conditions of supervised release that required Bill to undergo a special test that measured response of certain of his private parts to his seeing certain images (we’ll refer to the test by its acronym, PPG).
The PPG test does not look like fun.
The district court imposed the PPG requirement on Bill without any explanation. On appeal, the government conceded that PPG – a controversial technique – lacked any utility. Noting that a district court must “provide a substantial justification before making submission to PPG testing part of a condition of supervised release” – and being swayed by the government’s refusal to defend the condition – the 1st Circuit decided that whatever “a miscarriage of justice” was, this clearly fell to far side of that line. The Court said “potentially subjecting the defendant to PPG testing when the government expressly disavows the utility of this particular procedure about which we have expressed reservations, especially when the record lacks any explanation of the applicability of PPG testing to this defendant, constitutes a miscarriage of justice as well as plain error.”
United States v. Berríos-Cruz, Case No.14-1058 (1st Cir., Dec. 12, 2016)
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SENTENCING COMMISSION PROPOSES FIRST-OFFENDER BREAKS, PASSES ON CAREER OFFENDER ENHANCEMENT
Did the Sentencing Commission whiff?
For those who hoped the Sentencing Commission would propose to eliminate drug trafficking as offenses that support application of “career offender” status, last Friday’s meeting was a disappointment.
A December USSC meeting to consider proposals for the next year’s rounds of amendments is highly irregular, and the tin-hat people were buzzing: the Commission had an earth-shaking proposal, everyone’s running scared because of President Trump and a completely Republican congress, the earth is about to end… In the end, it turned out that the early meeting was most likely held because the 6-year tenure of USSC Chairwoman Patti B. Saris (whose day job is Chief Judge of the U.S. District Court for the District of Massachusetts) ends on December 31.
Last summer, the Commission said its policy priorities for the coming year would include a proposal to study whether to drug trafficking convictions as predicates for the Guidelines Chapter 4 “career offender” enhancement. Last summer, the Commission delivered a report to Congress that found that defendants with multiple drug convictions were much different, and considerably less tough to manage, than were those with two or more crimes of violence as predicates for career offender status. The Report suggested that drug offense perhaps should not count against defendants for career offender status.
Last week’s meeting, the Commission mentioned not a word about the career offender status, suggesting that nothing will happen to change “career offender” in 2017 unless the Supreme Court does it in Beckles v. United States.
Will the suggestion to narrow the definition of career offender go anywhere?
Instead of addressing “career offender,” the Commission voted to put out for public comment proposals to reduce sentencing ranges for first-time offenders, defined as those without any criminal history points whatsoever. The Commission wants to encourage federal courts to impose more alternative sentences that do not require incarceration.
Also, the Commission proposed changing how criminal history scores are calculated to eliminate the counting of juvenile convictions, and to propose a downward departure where a defendant was convicted as an adult for an offense committed before 18 years old. Additionally, the Commission proposed that parole and supervised release revocation sentences not be counted as extending prior periods of conviction, an important issue for a lot of defendants who have very old convictions that – because of a late revocation – suddenly fall within the 15-year look-back period.
The Commission proposed a two-year study on MDMA (“ecstasy”) and synthetic drugs, and said it would update its study – now before Congress – to reduce mandatory minimum sentences.
There was no discussion whatsoever of retroactivity for existing Guidelines or for the proposals set out for public comment. This is not usual: in the rare cases when a Guidelines change becomes retroactive, the proposal to do so comes only after the Guideline change has become effective.
Gridlock in the Commission’s future?
The composition of the Commission is about to change dramatically. Last Friday’s meeting was the final one for three of the seven members, Chief Judge Saris, Judge Charles R. Breyer and Dabney L. Friedrich. By statute, commissioners are appointed to 6-year terms by the President and confirmed by the Senate. At least three must be federal judges and no more than four may belong to the same political party. Other Commissioners include Circuit Judge William H. Pryor, Jr., Commissioner Rachel E. Barkow, Commissioner J. Patricia Wilson Smoot (ex-officio, U.S. Parole Commission), and Commissioner Michelle Morales (ex-officio, U.S. Department of Justice). The Commission must have at least four voting Commissioners for a quorum, and thus will be unable to act until new members are appointed and confirmed.
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A ROUGH JOB – BUT JUSTICE WAS DONE
Inmates who have to carry on their post-conviction legal battles without assistance of counsel – and that would include just about all of them – sooner or later learn the hard way that neither court clerks nor the US Attorney’s Office can be trusted to send them filings or court orders in a timely manner.
When we first began working with inmates, we found the complaint of non-service hard to believe. Well, not all of us – one of our number once practiced law in an Ohio city where it was ritual to go to the clerk’s office every Friday to check the dockets of cases in which he was involved, just to see what the other side had filed without serving him. But for those of us just out of law school, the idea of lawyers sand-bagging lawyers – or clerks failing to mail court orders of sheer negligence – did not comport with our rose-colored view of the practice of law.
But, alas, we’re older and more cynical, and not a month passes that we don’t find that some USAO or some clerk has failed to mail an inmate an opposition pleading or court order. Today’s case is a cautionary tale about the need to use an electronic version of our colleague’s Fridays-at-the-Clerks approach, as well as how a court of appeals – sympathetic to the limitations on pro se litigation – can try to make it right.
Larry Gooch (known on the street as “Goo”) is doing time for a litany of crimes, including four felony murders. In a motion under 28 U.S.C. § 2255, Goo complained his lawyer was ineffective at trial. The district court turned him down.
In Goo’s world, the clerk of courts was incompetent.
A few weeks later, Goo, acting pro se, submitted a filing to the District Court, entitled “Request for Extension of Time,” filed a pleading asking for an “extension of time of 60-days to file a Certificate of Appealability.” His request said that, “[b]ecause Mr. Gooch is unlearned in the law, he will require more time to properly research and prepare his Certificate of Appealability.” After receiving Goo’s filing, the district court, which found his ineffectiveness question to be a close one, granted Goo a certificate of appealability (COA) under 28 USC 2253(c) to test the argument on appeal.
The district judge construed Goo’s “Request for Extension of Time” as a motion for extension of time to file a notice of appeal under Federal Rule of Appellate Procedure (FRAP) 4(a)(5)(A)(i), and granted “an extension to file within sixty days of this Certificate.”
This is where Mr. Murphy made his appearance. In the midst of what the district court later called “downsizing, job sharing and sequestration,” the clerk’s office never sent Goo a copy of the apparently failed to mail Gooch a copy of the COA and order. Ten months later, Goo – puzzled that he had heard nothing – sent the court a letter inquiring about the status of his earlier request. The district court construed this letter as a motion for extension of time to file a notice of appeal under FRAP 4(a)(5) or, alternatively, as a motion to reopen the time to appeal under FRAP 4(a)(6), but denied it either way.
Goo then filed a motion with the U.S. Court of Appeals for the D.C. Circuit, asking leave to appeal. On Wednesday, the Court granted Goo’s motion.
The Court noted that FRAP 3 requires the filing of a notice of appeal is necessary before a court of appeals has jurisdiction to hear the appeal. There was no question that the filings 10 months after the fact were not timely under FRAP 4. In fact, the Circuit said, “Gooch made only one filing in the 60 days following the District Court’s denial of his § 2255 motion: his ‘Request for Extension of Time’.”
The good news, the Court said, is that while Goo’s timely filed “Request” “was not styled as a notice of appeal, it nonetheless may satisfy Rule 3 if it is the ‘functional equivalent’ of what the rule requires.” In order to do so, the document had to contain all of what FRAP 3 required be in a notice: (1) the party who was appealing, (2) the judgment or order being appealed, and (3) the court to which the appeal was taken.
Here’s something you’ll never see…
The Circuit parsed Goo’s “Request for Extension of Time” until it found what it wanted to find. First, because the “Request for Extension of Time” identified Goo in the caption, the Court said, it identified the party taking the appeal. Second, Goo’s filing designated the judgment or order being appealed, because it explicitly referenced the district court’s denial of his 2255 motion. The Court’s bob-and-weave was especially impressive on the third requirement, holding that while “the ‘Request for Extension of Time’ does not ‘name the court to which the appeal is taken,”’ – which is the third and final requirement – failures to meet this requirement are excused where there is only one court to which the appeal can be taken, which is the case here.”
Goo never explicitly said he intended to appeal – the final requirement – but the Court of Appeals breezily excused that, too. The Court said
Although the document refers to Gooch preparing and filing “his Certificate of Appealability,” it appears to mean an application for a certificate of appealability because the certificate itself is prepared and issued by the court. See RULES GOVERNING SECTION 2255 PROCEEDINGS FOR THE UNITED STATES DISTRICT COURTS 11(a) (“The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” (emphasis added)). In his filing, Gooch notes that the District Court “did not hold that it would not issue a Certificate of Appealability,” and requests additional time “within which to file his Certificate of Appealability” because “he will require more time to properly research and prepare his Certificate of Appealability.”
These statements clearly evince Gooch’s intent to obtain a certificate of appealability. As the only purpose of such a certificate is to pursue an appeal, Gooch’s intent to pursue an appeal can reasonably be inferred from his intent to file an application for the certificate.
It is correct, as inmates love to cite in their pleadings (as if the judges don’t already know it), that the Supreme Court requires courts to “liberally construe” documents filed pro se. Here, the D.C. Circuit found that “an intent to appeal can be reasonably inferred from the request” for extension of time, and it was loathe to dismiss the 2255 on procedural grounds rather than on the merits.
Good place for an idea… not so good a place for a Notice of Appeal.
The Court concluded that “Gooch’s ‘Request for Extension of Time,’ which was filed within the time period specified by Rule 4, constitutes the functional equivalent of a notice of appeal… [and] we have jurisdiction under 28 USC Sec. 2253(a) to consider the merits of his appeal.
To be sure, the Court of Appeals virtually held that a scrawl on the back of a cocktail napkin could serve as a functional stand-in for a FRAP 3 notice of appeal. But few can complain that this time, in its contortions, the D.C. Circuit did not do justice here.
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PANIC SETS IN
Like Jesus was, Obama will soon be in the post-presidency wilderness. Will the outgoing President yield to clemency temptation first?
There are only about as many days left in the Obama Administration as Jesus spent in the wilderness, and just as the New Testament reports that Jesus was tempted during his sojourn there, some suspect – and others pray – that the President will be tempted to announce one final, magnificent clemency gesture for the history books.
It’s been over two weeks sincethe last batch of commutations – 79 inmates (and two turkey pardons) just before Thanksgiving – and hopes that additional lists would be rolling out of the White House doors on an almost-daily basis are dwindling as the final days of Obama slip away.
Meanwhile, the Dept. of Justice quietly releaseda list last week of another 600 inmate clemency petitions that were denied by Obama. The list of denials since October 2010 is over 14,000 names long. For those keeping score, this means that the chance of a commutation petition being granted is about 6.6%, which are aboutslot-machine odds.
We calculate that there are still over 10,000 commutation petitions on file, and about 1,000 grants to go if the President intends to meet his goal of 2,000 commutations granted.
Lately, a lot of the talk has turned to pardons, as those with political agendas talk up their favorites: the Amazon.com of espionage/American hero (choose your sobriquet) Edward Snowden; transgender traitor/Wikileaks champion Army private Chelsea (nee Bradley) Manning; wandering Army Sgt. Bowe Bergdahl; or email warrior Hillary Clinton. Others are calling for the pardon of a kosher foods company executive convicted of bank fraud. And last week, the sons of convicted spy Ethel Rosenberg returned to the White House, more than 50 years after pleading unsuccessfully to spare her life, to deliver a last-ditch appeal to Obama to exonerate her amid new evidence. Rumors even floated that the President had granted clemency en masse to the hapless Cleveland Browns.
Will Obama commute the Browns players’ contracts? Inquiring minds want to know.
That’s not to mention the thousands of other clemency petitions on file from federal inmates who were not convicted of drug crimes. No one’s talking about those, and the likelihood that Obama will grant any of those only slightly exceeds the chance that the earth will plummet into the sun before you read this.
But the drumbeats for a sweeping commutation of drug sentences are insistent… and getting louder. Last week, the Washington Post tried to humanize Obama’s commutation decisions, reporting on a clemency application that was denied:
Ferrell Scott was sentenced to life in prison for possession and conspiracy to distribute marijuana, a drug that’s now legal in many states and turning a handsome profit for the (primarily white) pot industry. Scott, like many nonviolent drug offenders serving long sentences, is black. Without any chance at parole, despite an exemplary behavior record, he appealed to President Obama for clemency. He found out that his bid for clemency had been denied when he got an email about “bad news” from a friend. Thinking something bad had happened to his 93-year-old mother, he called home. His daughter answered, crying, and told him the news.
“She cried like a baby and she was telling me that she didn’t know what she was supposed to do now. Couldn’t understand it,” Scott tells The Watch in a phone interview.
The Post’s article on Ferrell’s denial came two days after it wrote about Lori Claire Kavitz, who’s serving 24 years for a meth conspiracy, and is supported in her clemency bid by her sentencing judge, among others.
Yesterday, Ohio State University law professorDoug Berman noted in his sentencing blogthat he had been “aggressively calling for Prez Obama to make significant use of his clemency power from literally his first day in office. This January 20, 2009 post was titled ‘Is it too early to start demanding President Obama use his clemency power?’ and in 2010 I authoredthis articlein the New England Journal on Criminal and Civil Confinement under the title ‘Turning Hope-and-Change Talk Into Clemency Action for Nonviolent Drug Offenders.’ I suppose I should be happy that, with Prez Obama on his way out the door, a lot of other folks are now finally joining this call for action with some urgency.”
The clock’s nearly down to zero. Time for the ‘Hail Mary’?
Prof. Berman was commenting on a Tuesday editorial in The New York Times that called for Obama to throw a ‘Hail Mary’ while he still can. The Times complained that “for most of his presidency, Barack Obama treated mercy as an afterthought. Even as thousands of men and women endured outrageously long sentences for low-level, nonviolent drug offenses as a result of the nation’s misguided drug war, Mr. Obama granted relief to only a tiny handful.” When Obama finally got his 2014 clemency initiative underway, the Times said, “that clemency process has moved far too slowly — beset by both administrative obstacles and bureaucratic resistance — grants have been accelerating throughout 2016.”
While Obama “has now shortened or ended the sentences of more than 1,000 prisoners,” the Times complained, “there are thousands more people deserving of release, but their prospects under the next administration don’t look good.” The Times argued for a single commutation blast that addressed every sentence imposed prior to 2010 that would have been less had the Fair Sentencing Act of 2010 been on the books. That law, which reduced the 100:1 sentencing disparity between powder cocaine and crack, did much to equalize sentences imposed after its passage, but the Act was not retroactive. The Times suggested:
Up to now, the president has reviewed clemency requests on a case-by-case basis. With only weeks left in office, Mr. Obama should consider a bolder approach: blanket commutations for those inmates still serving time under an old law that punished possession or sale of crack cocaine far more harshly than powder cocaine — a meaningless distinction that sent disproportionate numbers of young black and Latino men to prison for decades.
An open letter to the President last week signed by dozens of law professors and sentencing reform advocates – as well as a handful of former judges and prosecutors, made the same FSA suggestion, and went even further:
The U.S. Sentencing Commission staff could identify these individuals and DOJ could use prison placement (to a camp – the lowest level of federal incarceration – or to a low or medium facility) as a surrogate for how an individual has behaved in prison. There is bipartisan agreement that pre-Fair Sentencing Act crack sentences are unjust and have disproportionately affected people of color, but there is no mechanism for addressing that injustice outside of clemency.
People who have received sentences in narcotic cases involving other drugs besides crack who through good behavior worked their way down to placement in a camp or low or medium facility could receive similar consideration. You could also give special priority to veterans and older individuals and could consider granting relief to individuals who have been labeled as career offenders who have only narcotics as a triggering offense, a group that the Sentencing Commission recently urged Congress to treat differently because of their lower rates of recidivism and less culpable conduct. Similarly, those individuals who have received double mandatory minimum sentences where the individual has only drug convictions are calling out for relief.
The open letter contended that “the Constitution envisions precisely this kind of corrective against undue severity in the law,” and told Obama what he undoubtedly already knows, that “with a stroke of your pen, you could change the lives of thousands of individuals and their families and write a legacy that will stand throughout history.”
So far, no one’s making money betting on how this Administration will exercise the pardon and clemency power. With 42 days left, the odds are nearly the same that he will grant clemency to only a trickle more and that he’ll unlock the prison doors. About the only sure bet is the chances for clemency will equal a snowball’s odds in hell after January 20th.
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HE’S B-A-A-CK
As child porn cases go, this one is midrange seamy. Using some rather sophisticated investigative techniques, one of the federal alphabet agencies tracked a series of anonymous Internet kiddie porn right to the victim’s home. The shocked mom identified your typical sketchy Uncle Ernie-type who had babysat the child, a guy named Nathan Brown. The cops searched his mobile home and found computers with hundreds of thousands of child porn photos and videos, including the series of the girl found on the web.
Uncle Ernie – an odious character in the Who’s rock opera, Tommy. There’s a reason for the stereotype.
Nathan pled guilty to three counts of production of child porn, one for each of three kids he had photographed, and argued for the mandatory minimum sentence. The Guidelines, however, called for more. When all of the many enhancements peculiar to child pornography were piled on, Nathan – who had no prior record – had run up an astounding offense level of 54 (reduced to a final score of 51 because he pled guilty). Any score of 43 or over, of course, is life in prison without parole. Because the three offenses of conviction each had a 20-year maximum, the sentencing judge gave Nathan 20 years on each count, consecutive (or “running wild,” as defendants call it) for a sentence of 720 months (60 years).
Yesterday, the 60-year sentence divided a three-judge panel of the U.S. Court of Appeals for the 2nd Circuit for a second time. Last June, the panel sent the case back to the trial court for possible resentencing. The panel said that the trial court may have had an “erroneous understanding” of the facts — including that the judge said Nathan had destroyed the lives of three children, when, in fact, one of the children was asleep when she was videotaped and was thus unaware.
Upon calm reflection, the district judge hammered Nathan with the same 60 years, and the case came back to the 2nd Circuit. Yesterday, two judges on the panel upheld the sentence, with Judge Rosemary Pooler dissenting and Judge Robert Sack concurring.
“Given the seriousness of the crimes,” the Court ruled, 60 years “is within the realm of punishments that this court has upheld as reasonable for production of child pornography.” The decision cited the extraordinary quantity of other child pornography Nathan possessed, the psychological harm he caused to two victims, and what the district court said was Nathan’s lack of true remorse.
Both a concurrence and a dissenting opinion issued in the case merit study. Both raise legitimate questions about the draconian Guidelines sentencing regime governing child pornography offenses (in Nathan’s case, six different sentencing enhancements “catapulted” his Guideline range to 20 levels above kidnapping). As well, the two opinions – while of trifling legal consequence – contain some fascinating observations about imposition of sentences.
Judge Pooler observed that Nathan “Brown could have murdered his victims, and he would not have received a harsher sentence.” She argued that the district court “erred in giving Brown the same sentence for his conduct with respect to the third victim as for his conduct for the other two victims, even though the other two had suffered severe psychological damage, and thus had been harmed far more seriously.”This meant, roughly put, that a third of Nathan’s sentence was based on his having “destroyed” the life of a victim “despite an undisputed lack of evidence that the victim’s life had been affected at all.”
The district judge, engaging in what is all too normal hyperbole, told Nathan that he was “the worst kind of dangerous sex offender.” Judge Pooler said that, while the offenses are serious, the statement was untrue. “Brown did not forcibly rape his victims or subject them to physical harm,” she wrote. “He took pictures of the genitalia of three girls, usually while they were sleeping, by moving their underwear to the side. His offense did not involve penetration, extreme violence, abduction or trafficking.”
Judge Sack said in his concurrence that he was troubled by the sentence imposed by the district court:
The offenses for which the defendant was sentenced after pleading guilty to them involved a deeply disturbing combination of child molestation and the making, watching, and circulation of obscene child pornography. The details of the charged conduct challenge the adequacy of English-language adjectives to characterize them…
To borrow a phrase from death-penalty cases and twist it, child pornography is different. Focusing on subjects that are associated with our most powerful taboos, these cases evoke uniquely strong, if differing, emotional, moral, and cultural reactions from judges, necessarily based on the differing beliefs, values, sensitivities, and life experiences of those judges…
When we go beyond what is necessary to resolve this sort of case… we risk the appearance of explicitly or implicitly voicing our moral indignation rather than exercising our legal judgment, which is of course our only charge.
Judge Sack further observed that “sentencing judges must apply the law to the facts (including the fact of how others have emotionally responded to the crime), not vindicate their own anger and agitation or appear to be doing so… Similarly, part of our job as reviewing judges is to avoid losing our own objectivity or focus because of our own disgust. Because of the reaction such a crime evokes in us and in the trial court, we must be particularly assiduous in assuring objectivity and propriety in assessing the sentence imposed.”
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ECONOMIC CRIME SENTENCES ARE A SNAP
It happens buying cars … and in sentencing.
There’s a certain amount of irony in the Sentencing Guidelines’ approach to calculating fraud sentences. The process is akin to buying a car. You find a base price you can live with, but then you find that the options – such as sunroof, alloy wheels, sound system, steering wheel – all add dramatically to the price. Before you get out the door, you’ve also paid for extended warranties, dent and ding protection, and a few hundred bucks for document prep (whatever that is). And just like that, your sharp-eyed deal has morphed into the national debt.
The fraud guidelines in USSG Sec. 2B1.1 are like that. The base offense level for fraud is 6, which itself would yield a sentence of as low as probation. But before the defendant gets out the courthouse door, the amount of actual or intended loss may have more than doubled that number, and a gallimaufry of enhancements buried in the fine print – over 20 of them at last count – have added to it. It isn’t hyperbolic at all to suggest that the defendants would have been better off (sentencing-wise, at least) simply robbing their victims with a mask and a gun.
In a curious decision last week, the 2nd Circuit implied what many commentators have already argued, that the perverse and overblown sentencing effect of the 2B1.1 enhancements on a defendant’s base offense level — a sentencing construct for fraud “unknown to other sentencing systems” — virtually dictates that a district court impose a non-Guidelines sentence.
Ahmed Algahaim owned a suburban New York convenience store. Like many stores in this day and age of ubiquitous food stamps (now called SNAP, the Supplemental Nutrition Assistance Program), he accepted the three most widely-used pieces of plastic: Mastercard, Visa and EBT cards.
But unlike many stores, Ahmed would swap the swipe of a SNAP EBT card for cash (at a substantial discount, of course). His customers liked this, of course. Why buy cereal, oranges and milk when you can get 70 cents on the SNAP dollar to use to buy cigarettes and beer?
But while his patrons thought Ahmed’s scheme put the “convenient” in convenience store, the government took a dim view of the practice. Ahmed was convicted of food stamp fraud.
Most of the appeal was pretty plain vanilla, but a section of the decision considering Ahmed’s sentencing range was fascinating. His Guidelines calculation began with a base of 6. From 2B1.1’s loss table, 16 levels were added because of the amount of loss, for an adjusted offense level of 22 — three times the base level. With no prior criminal record, he got 21 months’ in prison. No one argued that his sentence was calculated correctly under the Guidelines.
To virtually everyone in the federal system, a guy with a 21-month sentence is considered a short-timer the day he arrives at the door. Nevertheless, the Court of Appeals remanded the case for resentencing.
2nd Circuit Judge Jon Newman acknowledged that it was within the Sentencing Commission’s authority to construct a sentencing scheme that “uses loss amount as the predominant determination of the adjusted offense level for monetary offenses.” Nevertheless, he observed that the Commission could (and should) have approached the problem differently:
For example, it could have started the Guidelines calculation for fraud offenses by selecting a base level that realistically reflected the seriousness of a typical fraud offense and then permitted adjustments up or down to reflect especially large or small amounts of loss. Instead the Commission valued fraud (and theft and embezzlement) at level six, which translates in criminal history category I to a sentence as low as probation, and then let the amount of loss, finely calibrated into sixteen categories, become the principal determinant of the adjusted offense level and hence the corresponding sentencing range. This approach, unknown to other sentencing systems, was one the Commission was entitled to take, but its unusualness is a circumstance that a sentencing court is entitled to consider.
It may be desirable among writers… but not so much among 2nd Circuit judges.
The Court surprisingly concluded that “where the Commission has assigned a rather low base offense level to a crime and then increased it significantly by a loss enhancement, that combination of circumstances entitles a sentencing judge to consider a non-Guidelines sentence.” The Circuit didn’t say the sentence was erroneous in any way or even that the district court was unaware of its power to impose an alternative sentence. Rather, the 2nd just said in so many words that the cumulative effect of overlapping enhancements leads to nonsensical sentences, and that district courts should be sensitive to that.
Two 2nd Circuit criminal defense lawyers observed that “many judges have stated that the Guidelines are not helpful in white-collar cases and that their emphasis on loss can lead to results that are “patently unreasonable.” Practitioners have also advocated for shorter sentences in cases involving relatively low loss amounts or where the defendant had no prior record. See ABA Criminal Justice Section, A Report on Behalf of the ABA Criminal Justice Section Task Force on the Reform of Federal Sentencing for Economic Crimes (November 10, 2014). To the extent that district judges needed any further encouragement, Judge Newman’s decision lets district judges know that a Guidelines sentence need not be imposed where the “significant effect of the loss enhancement leads to an unduly long sentence.”
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BUT HE WAS HIGHLY SKILLED
Chapter 3 enhancements to the United States Sentencing Guidelines provide any number of opportunities for judicial mischief. The defendant’s base offense level can be increased by having a managerial role in the offense, for obstructing justice, using a minor in an offense, reckless endangerment during flight, vulnerable victim… There’s quite a list of enhancements, and about the only commonality among them is that trying to define what conduct should qualify a defendant for the enhancement is akin to nailing Jello onto the wall.
Jello can be nailed to the wall… but it’s not easy.
Guideline 3B1.3, for example, provides that “[i]f the defendant abused a position of public or private trust, or used a special skill, in a manner that significantly facilitated the commission or concealment of the offense, increase by 2 levels.” And what might a “special skill” be? The Application Notes for Sec. 3B1.3 say that “a ‘special skill’ refers to a skill not possessed by members of the general public and usually requiring substantial education, training or licensing. Examples would include pilots, lawyers, doctors, accountants, chemists, and demolition experts.”
Tell that to Jose Villafranca. He got caught in Texas driving a truckload of illegal aliens, an offense for which he got a 57-month sentence. The district court slapped him with a 2-level enhancement – raising his sentencing range by about a year – for his “special skill” of holding a commercial driver’s license.
Last week, the 5th Circuit agreed with the upward adjustment, holding that the “ability to drive a tractor trailer truck as evidenced by the possession of a commercial driver’s license constitutes a special skill for purposes of Sec.3B1.3.” Relying on a prior, unreported case, the court of appeals observed that Jose “had 15 years of commercial truck-driving experience, acted as a licensed truck driver purporting to carry a legitimate load through a checkpoint on one of the nation’s busiest corridors where there are thousands of other tractor-trailers.” The Court argued that “without those special skills, he would have been unable to tow the tractors in which the aliens were hidden… by carrying the aliens in the truck’s trailer, the defendant gave the appearance that he was hauling a legitimate load and made it much more difficult to identify the aliens.”
Of course, the same can be said of a person holding a plain vanilla driver’s license. Knowing how to drive a car with a couple of aliens in the trunk would be similarly skillful. There are about 3.5 million licensed truck drivers in America. Indeed, it is not necessary to hold the license to be knowhow to drive an 18-wheeler. (We confess that years ago, we began driving a tractor-trailer for a produce farm with 10 minutes of on-the-road training).
We’re not denying that there are many very skilled, very experienced truck drivers on the roads. Rather, we’re arguing that the test is whether skill that required much training and education contributed substantially to committing the crime. To make the point, we’d note that had Al Qaeda used air transport pilots on 9/11, those skills would been used to turn the aircraft into the flying bombs they became. But using a few mutts who had never soloed an airplane – let alone held a pilot’s license – was enough to carry out the attack. Likewise in this case, anyone with an hour’s training could have driven a tractor-trailer through a customs station.
This decision makes a mockery of the Application Note, unless “truck driver” is a logical progression of the subset “pilots, lawyers, doctors, accountants, chemists, and demolition experts.” If the trial judge feels the need to vary above the Guidelines range for some reason, he or she should simply do so, rather than reducing Chapter 3 of the Guidelines to an absurdity with bogus enhancements.
Let’s not pull any punches. Jabar Gilliam is a scumbag. Having taken on a troubled 16-year old named Jasmin as his “girlfriend,” he took her from Baltimore to New York so she could turn tricks for him. He beat her up. He raped her. He threatened to turn her younger sister into a prostitute if Jasmin refused to let him pimp her.
‘The fact that Jasmin has a foster mother and a social worker assigned to her suggests that her life hadn’t been roses before Jabar got his hands on her. Yet someone cared enough that, when Jabar spirited her off to the Big Apple, her disappearance was immediately reported to the police. The locals got the Maryland State Police involved right away. Jasmin has told her foster mother about her new boyfriend Jabar, and it didn’t take the police long to figure out it was Mr. Gilliam.
An MSP investigator was on the case within three days of Jasmin’s disappearance. After talking to Jasmin’s biological mother – whom Jabar had apparently told he intended to pimp her daughter – the investigator contacted Sprint. He told the cellphone provider he was “investigating a missing child who is . . . being prostituted,” and requested GPS location information for Jabar’s cell phone. He said that he was making the request because of “an exigent situation involving … immediate danger of death or serious bodily injury to a person.” Sprint promptly complied, and began feeding Jabar’s real-time GPS location information to the MSP investigator, who passed the information on to the FBI and NYPD.
The same day, Jasmin called her biological mother from the Bronx apartment of Gilliam’s mother. Sprint’s location information placed Jabar’s cellphone nearby. Canvassing the neighborhood, two New York cops saw Jabar and Jasmin on the street and followed them to an apartment building. When one of them confronted Jabar, he tried to run. The decision dryly reports “a scuffle ensued, after which Gilliam was arrested.” We can only hope they displayed the same restraint for which the NYPD is well known.
Jabar was convicted of sex trafficking of a minor by force, fraud, or coercion in violation of 18 U.S.C. 1591(a), (b)(1), and (b)(2), and of transporting a minor in interstate commerce for prostitution in violation of 18 U.S.C. 2423(a). He got 20 years. At trial, he challenging the use of GPS location information to find and arrest him. The district court ruled that the Stored Communications Act, 18 U.S.C. §2702(c)(4), authorized, and under the 4th Amendment, exigent circumstances permitted the MSP to obtain location information from Sprint without a warrant.
Yesterday, the 2nd Circuit upheld the conviction. Considering the alternative – letting Jabar walk out of prison a free pimp – the outcome was probably preordained. Yet in doing so, the Court has sanctioned the incremental creep of government intrusion into individual privacy.
The Stored Communications Act says that a provider like Sprint “may divulge a record or other information pertaining to a subscriber . . . to a governmental entity, if the provider, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of information relating to the emergency.” The disclosure may not include the contents of the communications, but the Court had no trouble concluding that “other information” included GPS data.
The Court’s understandable concern for Jasmin’s well-being led it to easily conclude that the situation involved “an emergency involving danger of . . . serious physical injury.” The Court said “we think it obvious that “involving” includes a realistic threat of such injury, not just a completed injury.” To the MSP officer, the Circuit ruled, “the evidence available… at the time of the search for Gilliam’s location was compelling. Based on discussions with Jasmin’s foster mother, social worker, and biological mother, law enforcement officers had a substantial basis to believe that Gilliam was bringing Jasmin to New York City to require her to work there as a prostitute. That type of sexual exploitation of a minor has often been found to pose a significant risk of serious bodily injury. As the 9th Circuit has observed, prostitution of a child involves the risk of assault or physical abuse by the pimp’s customers or by the pimp himself.”
The 2nd admitted that while “several courts have found that exigent circumstances justified warrantless entry into premises to avoid risk of injury to a minor held there… Locating on the streets a victim of sexual exploitation might seem to present a less immediate need for police action than entering premises where such a victim is being held, but it is nonetheless sufficient to constitute exigent circumstances.” The Circuit ruled that the existence of “exigent circumstances” satisfied both the Stored Communications Act and the 4th Amendment.
There’s nothing quite as odious to polite society as prostitution. Recent blending of the scourge of human trafficking with long-standing societal abhorrence of the sex trade has made it all the worse. Here, the evidence is that Jasmin told Jabar when she met him that she was 17 years old and currently whoring for another pimp. No question she was a victim – indeed an underage victim – but she was certainly not innocent in the nonlegal sense. And of course, it turned out Jabar had hit her and that she was not a willing participant in his pimp practice.
But the expansive application of the exigent circumstances doctrine in this case – easy to do because of the appalling nature of the offense – is troubling. Based on a reasonable belief that someone was engaging in an offense that could lead to other offenses – physical abuse, for example – the police were able to access real-time location information and track a suspect until they caught him.
… except when it’s not.
The appellate panel said that Congress has deemed it reasonable to subordinate any individual privacy interest in cell phone location information to society’s more compelling interest in preventing an imminent threat of death or serious bodily injury, and has therefore given service providers the authority to decide whether there existed an emergency involving danger of death or serious physical injury to any person.” But this was danger by statistic or anecdote. There are thousands of people in America plying the sex trade, and what made this case a federal crime was that the victim was a little more than a year from the age of majority. The danger to her at age 16+ was not statistically greater than the danger to her at age 18, at which time Jabar’s disgusting conduct would no longer be a crime. As the opioid crisis illustrates, illegal drugs pose a risk of physical injury and death. Would this be enough to justify warrantless real-time location monitoring of suspect drug traffickers?
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JUST FOLLOW THE (NEW) RULES
Some changes in the Federal Rules, going into effect today, have gotten a fair amount of press. Others, as is usually the case with modifications to procedural rules, have been all but ignored.
The modification to Rule 41 – which governs warrants for search and seizure procedures – gives judges the power to issue warrants allowing for remote access, search, seizure, or copying of electronic data when the location of the data has “been concealed through technological means” or when the information is located on protected devices and have been “damaged without authorization and are located in five or more districts.”
Privacy organizations such as the Electronic Frontier Foundation (EFF) and Access Now have argued the modified rule presents a threat to just about any computer user, even one using privacy tools like Virtual Private Networks (VPNs) or the Tor browser, which conceal a user’s location and online activities.
In a blog post, EFF’s activism director Rainey Reitman argued
there are countless reasons people may want to use technology to shield their privacy. From journalists communicating with sources to victims of domestic violence seeking information on legal services, people worldwide depend on privacy tools for both safety and security. Millions of people who have nothing in particular to hide may also choose to use privacy tools just because they’re concerned about government surveillance of the Internet, or because they don’t like leaving a data trail around haphazardly. If this rule change is not stopped, anyone who is using any technological means to safeguard their location privacy could find themselves suddenly in the jurisdiction of a prosecutor-friendly or technically-naïve judge, anywhere in the country.”
The rule also has implications for users who are compromised by malicious software and are victimized by someone else’s activity.
But there are less controversial rules changes, too. The Federal Rules of Appellate Procedures seek to put the “brief” back in “brief,” cutting the number of words allowed in an appellant’s brief from 14,000 to 13,000. The length of opposition and reply briefs change as well, and – for the first time – a word limit is placed on petitions for rehearing.
Back in the days of horse and buggy, whenever a lawyer had to respond to a pleading filed by another lawyer, he or she could add three days to the time allowed to respond if the pleading had been delivered by mail. The federal courts have shifted completely to service of pleadings by email – the courts’ electronic case filing (ECF) system. However, the Federal Rules of Civil Procedure still provided for the additional three days when the pleading was delivered by ECF.
The Rules Committee Comments has now concluded that the three-day additional time is no longer necessary. The Committee comments that “Rule 5(b)(2) was amended in 2001 to provide for service by electronic means. Although electronic transmission seemed virtually instantaneous even then, electronic service was included in the modes of service that allow 3 added days to act after being served. There were concerns that the transmission might be delayed for some time, and particular concerns that incompatible systems might make it difficult or impossible to open attachments. Those concerns have been substantially alleviated by advances in technology and in widespread skill in using electronic transmission.”
Thus, the 3-day time dodge, enjoyed by procrastinating lawyers everywhere, has now been written out of the Rules of Civil Procedure.
This elimination of the three-day extension for ECF service makes sense. Deadlines should be simple to calculate.
Of interest to pro se prison litigants, the Federal Rules of Appellate Procedure have now made use of the prison legal mail system mandatory. Under the prison “mailbox rule,” the Supreme Court held in Houston v. Lack, a prisoner is deemed to have filed a pleading the moment he or she places it in the prison’s mailbox. Most prisons operate a “legal mail” system, where inmates deliver mail to the courts to an officer, who stamps the envelope with the date of delivery and logs it in a permanent record.
Changes in the Federal Rules of Appellate Procedure now mandate that a prisoner seeking to take advantage of the prison “mailbox rule” must use the institution’s legal mail system (if there is one), and must accompany the filing with “a declaration in compliance with 28 U.S.C. Sec. 1746—or a notarized statement—setting out the date of deposit and stating that first-class postage is being prepaid; or evidence (such as a postmark or date stamp) showing that the [filing] was so deposited and that postage was prepaid.” A prisoner may file the declaration later, with the Court’s permission, but who wants to gamble on getting that OK’d?
The new mandatory use of legal mail and the declaration applies to all filings a prisoner makes in the Court of Appeals starting on December 1.
SANDBAGGED
Jakeffe got a 200-month sentence. But after Johnson v. United States held in 2015 that the residual clause in Sec. 924(e)(2)(B)(ii) was unconstitutionally vague. Jakeffe filed a collateral attack on his sentence under 28 U.S.C. 2255. The district court had counted a burglary conviction among the three predicate acts. Jakeffe argued that this was a mistake, but the district court disagreed, and upheld his sentence.
While Johnson was a new rule of constitutional law made retroactive, Jakeffe’s new argument rests on Mathis, which is not. Instead, Mathis just interprets the statutory word “burglary” and “does not depend on or announce any novel principle of constitutional law.” By knocking out the residual clause, Johnson opened the door to arguments based on the limits of the elements clause, the Court said, but it did not declare it unconstitutional.
Here, the district court found that Jakeffe’s 2255 relied on the meaning of “burglary” rather than the meaning of the Constitution, and she denied the 2255. The judge acted before the Supreme Court released Mathis, so she did not appreciate that Jakeffe’s burglary conviction had been misclassified when he was sentenced. She did, however, understand that his argument was statutory rather than resting on Johnson or any other retroactive rule of constitutional law.
