All posts by lisa-legalinfo

Who Wants to Be A Prison Guard? – Update for February 25, 2026

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

BOP SHORT STAFFING WAS A HOT TOPIC LAST WEEK

In a finding that rivals Newton’s conclusion that gravity makes apples fall to the ground, a Congressional Research Service report last week determined that non-competitive pay and difficult working conditions are main causes of longstanding understaffing at the Bureau of Prisons, a problem that has persisted despite paying recruitment and retention incentives, using shortcut “direct hire” authority, and promising student loan repayments for employees.

The BOP had always run vacancy rates in the 10-12% range, but that jumped to the 17-18% range over 2018-2021, and then again to the 22-25% range after the pandemic. Over the six years ending in 2002, overtime costs more than doubled to $275 million even while the number of correctional officers fell 22% from about 19,000 to about 15,600.

“There are questions about whether pay for federal COs is competitive with other federal law enforcement agencies and the private sector,” the report said. “Candidates for CO positions who have college degrees might also consider seeking entry-level law enforcement officer positions for which they qualify with other federal agencies, which might pay more.”

The differences have grown greater recently, CRS said, as agencies – including CBP and ICE – have offered larger incentives while the BOP has “paused offering new recruitment incentives and have ended some retention incentives due to budgetary constraints.”

Last Friday, Democrats on the House Judiciary Committee demanded details on BOP plans to address these “major and long-time staffing shortages,” Federal News Network reported.

In a letter sent to BOP Director William K. Marshall III from top Democrats on the House Judiciary Committee warned that workforce issues have reached a “crisis point,” leading to operational challenges and unsafe conditions in the federal prison system.

“By far, the most significant challenge to BOP’s ability to fulfill its public safety mission is its pervasive shortage of critical staff — particularly of correctional officers, healthcare professionals and mental health specialists,” the letter stated.

While the BOP inmate population fell slightly last year, “it still exceeds BOP’s capacity,” the letter asserted. “Moreover, any population reduction likely is offset by the influx of thousands of immigrant detainees BOP agreed to accept. Despite the obvious need to retain its workforce, in March 2025, BOP cut pay to frontline officers by as much as 25% [and] institute[ed] a hiring freeze in May 2025.”

Although the BOP received $3 billion in additional funding in last summer’s One Big Beautiful Bill, “it appears that BOP only recently posted open correctional officer positions to the public. Further, reporting revealed that the Bureau has lost more than 1,400 staff members as a result of heavy recruitment for positions that come with generous salaries and signing bonuses from Immigration and Customs Enforcement (ICE). One BOP official told ProPublica, “We’re broken and we’re being poached by ICE.”

The letter asks the BOP to report the efforts it has undertaken to attract and recruit qualified candidates and retain current employees. The Democrats are especially interested in the number of BOP COs lost to higher-paying ICE jobs.

Unsurprisingly, BOP employee unions last week endorsed H.R. 7033, the bipartisan Federal Correctional Officer Paycheck Protection Act of 2026 introduced last month. The bill aims to boost BOP staff recruitment and retention by raising pay for BOP employees working in custodial settings with direct inmate contact by up to 35%.

Sam Metcalf, president of AFGE Local 0701, told Corrections1 last week that higher pay is needed to reduce the heavy use of augmentation — a practice in which non-custody staff are reassigned to cover correctional officer posts. 

FEDWeek, Report Lays Out Causes, Effects of Bureau Understaffing (February 19, 2026)

Federal News Network, House Democrats Press Bureau of Prisons leadership on staffing ‘crisis’ (February 20, 2026)

Letter from Jamie Raskin to William K. Marshall III, February 20, 2026

HR 7033, Federal Correctional Officer Paycheck Protection Act of 2026

Corrections1, Union backs bill proposing 35 pct base pay increase for federal correctional officers (February 20, 2026)

~ Thomas L. Root 

11th Circuit Defines “Available Caregiver” for Compassionate Release – Update for February 23, 2026

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

I’M AVAILABLE

One extraordinary and compelling reason for grant of compassionate release under 18 USC 3582(c)(1) is that the prisoner has a loved one – child, spouse, sibling, parent – who is incapacitated by illness or injury and needs a caregiver.  The catch is that (except in case of a spouse) the prisoner must be the “only available caregiver” for the family member under Guidelines 1B1.13(b)(3)(C).

No one has been quite sure what constitutes the “only available caregiver.” Last week, the 11th Circuit became the first appellate court to weigh in on the question.

Rufino Robelo-Galo petitioned his sentencing court for compassionate release, arguing that he was the “only available caregiver” for his incapacitated father. The district court found that Rufino’s son, Elmer, was available to help the incapacitated dad, and, as a result, Rufe was not the only available caregiver. The court denied the compassionate release motion, and Rufino appealed.

Last week, the 11th Circuit upheld denial of the compassionate release motion. To prove extraordinary and compelling reasons for grant of compassionate release under USSG 1B1.13(b)(3)(C) – the incapacitated family member provision – the Circuit ruled that an inmate must demonstrate that no other person is both qualified and free to provide the needed care.

“Whether an alternative caregiver is both qualified and free, the 11th said, “will turn on the unique facts of a particular case, but we identify several factors that district courts should consider in making that assessment.” Those may include

    • whether legal barriers (such as immigration status or active duty military) prevent the potential caregiver from providing care;
    • whether physical or logistical barriers exist to caregiving, such as geographic distance (which“may render caregiving impracticable depending on the circumstances. A potential caregiver who lives across the country is less free to care for an incapacitated relative than a potential caregiver who lives in a neighboring town;”
    • whether knowledge or capability-based barriers (such as language or specialized skills) might affect the caregiver’s qualifications;
    • whether “familial dynamics or relationship history” – such estrangement or history of abuse – may bear on an alternative caregiver’s availability. The Circuit noted that “evidence that a family member or friend has previously cared for the incapacitated person supports a finding that the family member or friend is available;” and
    • whether economic, financial, or employment-related barriers would impact a caregiver’s availability.

In this case, Rufus argued that none of his five children was available to serve as the grandfather’s caregiver. One child was deceased; one’s whereabouts were unknown; two lived in the United States and could not relocate to Honduras; and the remaining child – Elmer – lived in Honduras but was four hours away. Elmer could not travel back and forth to care for his grandfather because he did not have a car, Elmer could not accommodate his grandfather in his own home because of space constraints, and that Elmer could not relocate to his grandfather’s home because he would not be able to find work and provide for his own children.

The district court, however, reasoned that because Elmer was “within hours of the incapacitated family member,” Rufus was not “the only available caregiver for his incapacitated father… [and] that “a finding of compassionate release cannot rest solely on avoiding such inconvenience for a convicted inmate’s family.”

Being the first Circuit case to address the meaning of “available caregiver” in detail, the 11th’s decision will undoubtedly become the “go-to” ruling on the question across other circuits.  Anyone filing a compassionate release motion arguing an incapacitated family member should address the factors identified by Rufus’s court.

United States v. Robelo-Galo, Case No. 24-12128, 2026 U.S.App. LEXIS 4650 (11th Cir. February 17, 2026)

~ Thomas L. Root

Bowe Gets His §2255 Second Chance – Update for February 20, 2026

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

11TH CIRCUIT GIVES BOWE ANOTHER ARROW

You may remember that a month ago, Michael Bowe – convicted 10 years ago of conspiracy to commit a Hobbs Act robbery, attempted Hobbs Act robbery, and using a gun during the offenses in violation of 18 USC § 924 – won his Supreme Court case. On January 12, 2026, SCOTUS ruled that while 28 USC § 2244 provides that a denial of authorization “to file a second or successive application” shall not be subject to Supreme Court review, the limitation does not apply to federal prisoners. The Supremes said the limitation is housed within 28 USC § 2244, “which imposes several strict requirements that apply only to state prisoners.” What’s more, subsection 2244(b)(3)(E) addresses only “second or successive application’ but “unlike state prisoners who file such ‘applications,’ federal prisoners file ‘motions.”

Mike filed and lost a § 2255 motion in 2016, arguing that Johnson v. United States, which invalidated the residual clause in the Armed Career Criminal Act (18 USC § 924(e)), also invalidated his § 924(c) conviction. He lost. He filed a second § 2255 motion in 2019, after United States v. Davis held that conspiracy to commit a vviolent crime was not itself a violent crime. He lost again, because while Davis announced a new, retroactive constitutional rule, Mike’s attempted Hobbs Act robbery conviction was still a crime of violence.

After United States v. Taylor held in 2022 that attempted Hobbs Act robbery was not a crime of violence, Mike once again asked the 11th Circuit for authorization under § 2255(h), arguing that Davis and Taylor leave none of his convictions as valid predicates for a § 924(c) charge. The Circuit dismissed the part of his request resting on Davis, reasoning that the claim had been “presented in a prior application” and that the panel lacked jurisdiction over such old claims under § 2244(b)(1) –  a statute that on its face applies to state prisoners seeking leave to file a second 28 USC § 2254 petition in federal court but has ambiguously been applied by federal appeals courts to federal § 2255 movants as well.

The Supreme Court reversed, holding that § 2244(b)(1)’s old-claim bar – that states that “[a] claim presented in a second or successive habeas corpus application under § 2254 that was presented in a prior application shall be dismissed” – applies only to state prisoners.

Last week, the 11th  ruled that Mike could go forward with a new § 2255 motion. “Based on Taylor and the 11th Circuit’s Brown v. United States decision, Bowe contends that neither of his predicate offenses — conspiracy to commit Hobbs Act robbery (Count 1) and attempted Hobbs Act robbery (Count 2) — can now quality as a ‘crime of violence’ that would support his § 924(c)(1)(A) conviction (Count 3) for using, brandishing, or discharging a firearm during a crime of violence,” the 11th said.

Bowe has made a prima facie showing that he meets the statutory criteria in § 2255(h)(2)… But a prima facie showing case is not a final showing entitling an applicant to relief. A prima facie showing is only the necessary first step. He still has to show the district court that he is entitled to the relief he seeks. As we have explained: “Things are different in the district court. That court has the benefit of submissions from both sides, has access to the record, has an opportunity to inquire into the evidence, and usually has time to make and explain a decision about whether the petitioner’s claim truly does meet the § 2244(b) requirements. The statute puts on the district court the duty to make the initial decision about whether the petitioner meets the § 2244(b) requirements—not whether he has made out a prima facie case for meeting them, but whether he actually meets them…”

In re Bowe, Case No. 24-11704, 2026 U.S. App. LEXIS 3876 (11th Cir. February 6, 2026)

Brown v. United States, 942 F.3d 1069 (11th Cir. 2019)

United States v. Taylor, 596 U.S. 845 (2022)

United States v. Davis, 588 U.S. 445 (2019)

Bowe v. United States, Case No. 24-5438, 2026 U.S. LEXIS 4 (January 9, 2026)

~ Thomas L. Root

Pardon and Punishment – Update for February 19, 2026

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

JUSTICE, TRUMP ADMINISTRATION STYLE

Pardons for the Right People:    President Trump last Thursday pardoned five former professional football players — including Super Bowl champions, a Hall of Famer and a Heisman Trophy winner — for crimes ranging from perjury to drug trafficking.

footThe pardons of ex-NFL players Joe Klecko, Nate Newton, Jamal Lewis, Travis Henry and the late Billy Cannon were announced by White House pardon czar Alice Marie Johnson.

“As football reminds us, excellence is built on grit, grace, and the courage to rise again. So is our nation,” Johnson wrote on the social media site X, as she thanked Trump for his “continued commitment to second chances.”

Of course, for the thousands of people serving sentences for drug and violent crimes who do not happen to have been NFL players, the action – which excuses prior criminal conduct because of the athletic prowess of the recipient – only underscores the fact that the price of admission to Trump clemency continues to be fame, fortune, or political affinity with the President.

Nevertheless, writing in his Sentencing Law and Policy blog, Ohio State law professor Doug Berman was a little puzzled by the announcement: “Ever the showman and the sports fan, I am a bit surprised that Prez Trump did not announce these pardons himself, and I am even more surprised that he did not seek to get attention by issuing these pardons in the week leading up to the Super Bowl rather than during the week after when the spotlight has turned away from football.”

Punishment for the Wrong People:      One of Trump’s first executive actions a year ago was to order that 37 death row inmates whose sentences President Biden had previously been commuted to life imprisonment without chance for release be “imprisoned in conditions consistent with the monstrosity of their crimes and the threats they pose.”

US District Judge Timothy J. Kelly issued a preliminary injunction against a plan to transfer the 37 to ADX Florence.  The judge noted that BOP policy allows assignment to the supermax in only two circumstances: when ”placement in other correctional facilities creates a risk to institutional security and good order or poses a risk to the safety of staff, inmates, others, or to public safety” or when an inmate’s status is such that he “may not be safely housed in the general population of another institution.”

The judge said public statements by Trump and Attorney General Pam Bondi had guaranteed that the men would be transferred to the supermax facility because Trump wanted it, regardless of the BOP designation standards.

“It is likely that the [administrative review ]process provided to Plaintiffs was an empty exercise to approve an outcome that was decided before it even began,” Judge Kelly wrote.  He said Bondi and other officials “made it clear” to BOP that the inmates “had to be sent to ADX Florence to punish them, no matter what result the originally BOP process might have yielded.”

Forgiveness for Favorites:   The Dept of Justice last week moved to dismiss criminal contempt of Congress charges against Trump acolyte Steve Bannon, who served four months in the BOP for the conviction.

Although Bannon has done his time, his petition for certiorari is pending before the Supreme Court. The case relates to Bannon’s refusal to testify before the congressional committee investigating the January 6, 2021, attack on the US Capitol. He was convicted in 2022 of two counts of contempt of Congress for refusing to appear for a deposition and declining to produce documents requested by the committee.

The DOJ wrote in its motion to dismiss the case, that “[t]he government has determined in its prosecutorial discretion that dismissal of this criminal case is in the interests of justice.”

The New York Times, Trump Pardons Klecko, Jamal Lewis and Other Former N.F.L. Players (February 12, 2026)

Politico, Judge halts transfer of former federal death inmates to ‘supermax’ prison (February 11, 2026)

Memorandum Opinion, Taylor v. Trump, Case No 25-cv-3742 (DDC, February 11, 2026)

Associated Press, Trump pardons five former NFL players for crimes ranging from perjury to drug trafficking (February 13, 2026)

Brief for the United States, Bannon v United States, Case No. 25-453 (Supreme Court, filed February 9, 2026).

~ Thomas L. Root

Shocking News from GAO! BOP Has Messed Up FSA Placement! Who’d Have Guessed? – Update for February 17, 2026

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

GAO PAINTS PICTURE OF DEADBEAT BOP’S CHAOTIC HALFWAY HOUSE MANAGEMENT

The Government Accountability Office painted a bleak picture of the Bureau of Prisons’ halfway house placement program, a chaos of mismanagement that deprives inmates of First Step Act credits they have earned and halfway house operators of payments they are owed.

The 7-year-old First Step Act encourages federal prisoners to complete programs proven to reduce recidivism by promising them earned time credits that can shorten sentences and extend their time in prerelease custody in Residential Reentry Centers or RRCs (which we know as halfway houses) and on home confinement. Writing in Forbes last week, Walter Pavlo said, “Lawmakers understood what correctional professionals have long known. The last months of a sentence should focus on reconnecting people to jobs, housing, and families, not warehousing them in prison.”

Reality, however, is muted. The GAO reports that not only has the BOP not consistently moved eligible inmates into halfway houses on time, but often, the BOP does not even know how many people are eligible for and entitled to placement.

The Report said that “BOP officials said they do not know because the dates individuals are eligible to transfer are not readily available… GAO found that BOP did not apply all the earned time toward placement in RRCs and home confinement for 21,190 of 29,934 individuals reviewed, for reasons such as insufficient RRC capacity and court orders. However, the full scale of this issue is unknown due to the lack of readily available data on eligibility dates.”

The problem has been due in part to limited capacity in BOP-contracted halfway house and home confinement spaces, BOP officials told GAO. However, the Report stated, “BOP does not know the full extent of this shortage because it has not comprehensively assessed its capacity and related budgetary needs. Without these assessments, BOP cannot ensure it has enough space for incarcerated individuals to transfer on time. BOP could also miss opportunities to increase revenues and decrease costs to the federal government.”

As of September 30, 2024, the BOP was using 91% of its contracted halfway house beds and 121% of its contracted home confinement space. A full 38% of halfway houses were at or above 95% capacity, and 62% were at or above the 95% capacity for halfway house slots. In fairness to the BOP, since William K. Marshall III assumed the Director’s slot, the agency has prioritized home confinement through the alternative Federal Location Monitoring program, managed by the US Probation Office instead of halfway house staff.

GAO also found that the BOP has been a deadbeat on a scale that would get a defendant on supervised release sent back to prison. From 2022 through March 2025, the Bureau “made roughly 65,000 late payments to contractors, including to RRCs,” according to the Report. “As a result, the agency paid $12.5 million in interest penalties as part of $2.8 billion in payments to contractors. In addition, GAO found that BOP paid RRCs late about 70% of the time, from fiscal years 2023 through 2024.”

It should be unsurprising that halfway houses would be less than enthusiastic about working with the BOP to expand their businesses: the Report said that as a result of late payments, halfway houses “face hardships due to the late payments — needing private loans to pay staff. One halfway house representative said late payments have made some halfway houses reluctant to bid for new BOP contracts, which can further complicate BOP’s plans to expand capacity.”

Pavlo wrote, “The BOP understands that it has a problem and after years of not addressing it now realize that the solution is going to take time.” A BOP spokesman said, “[T]he Bureau has actively posted Requests for Information… in more than 20 locations nationwide to expand RRC and home confinement services… With respect to home confinement, the Bureau is transferring individuals as quickly as possible once they reach their Home Confinement Eligibility Date and meet all statutory and public safety criteria. We are committed to ensuring individuals are not held longer than necessary when they are appropriate for home confinement placement.”

Government Accountability Office, Bureau of Prisons: Actions Needed Better Achieve Financial and Other Benefits of Moving Individuals to Halfway Houses on Time (February 11, 2026)

Forbes, GAO Critical of Bureau of Prisons Use of Halfway Houses (February 12, 2026)

~ Thomas L. Root

Trending Now… Running Out of Lawyers and Poor People – Update for February 13, 2026

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

LEGAL TRENDS YOU SHOULD KNOW

This is where current events affect federal prisoners.

Government Running Out of Troops:  Generally, federal prisoners and defendants would think that the fewer resources the government has to throw against them, the better. Whether that’s true may soon be put to the test.

The ranks of skilled litigators in US Attorneys’ offices (USAOs) nationwide – especially on the criminal side of the office – have been gutted by resignations over what many Assistant United States Attorneys complain is “efforts by senior department leaders to push career prosecutors into doing Mr. Trump’s bidding,” according to The New York Times.

The DOJ’s workforce declined by 8% between November 2024 and November 2025, according to Office of Personnel Management data. At the same time, USAOs have lost 14 pct of their employees, “a staggering one-year reduction unlike anything the department has seen in recent memory,” The Times reported that former officials said. “Worse still, the departures have hit the upper tier of prosecutors in premier offices the hardest, simply because those with the most experience were the most likely to have lucrative job prospects on the outside.”

In a little-noticed 8th Circuit filing last week, the U.S. Attorney for the District of Minnesota, Daniel Rosen, says his short-staffed office has been abandoning “pressing and important priorities” to manage the flood of immigration cases stemming from Operation Metro Surge, the Trump administration’s mass deportation push in the Twin Cities, which is now ending.

Rosen said his office is buckling under the crushing weight of hundreds of emergency lawsuits filed by immigrants detained by ICE in recent weeks. He said 427 had been filed in January alone, and that the pace is expected to continue into February.

In a filing accompanying Rosen’s statement, DOJ attorneys wrote that the “crushing burden” caused by immigration cases had led US attorneys nationwide to “shift resources away from other critical priorities, including criminal matters.”

Rosen said his team of attorneys handling civil litigation is “down 50%” — a reference to a wave of resignations and departures at the start of Operation Metro Surge — and that those who remain “are appearing daily for hearings on contempt motions.”

I have been seeing an increasing number of unusually long-date requests for extension of time from USAOs to respond to prisoner § 2255 motions and compassionate release cases. At the same time (although this is very hard to quantify), it seems to me that the quality of legal scholarship in government filings has fallen.

SCOTUS Running Out of IFP Filers:  The National Law Journal reported last week that “a large pool of cases at the U.S. Supreme Court has been drying up in recent years, and experts aren’t sure why.” Appeals from indigent litigants (“in forma pauperis” or “IFP” filers) have fallen precipitously over the past several Supreme Court terms and are now at their lowest level in the 21st century.

In its most recent term, SCOTUS received around 2,500 appeals from indigent petitioners, fewer than half the number of indigent appeals from six years ago, and about a third of the number filed 20 years ago. Historically, IFP filings have accounted for the majority of annual cases filed in the Supreme Court. In the October 2006 term, for example, 7,132 IFP filings came in compared to 1,723 cases filed by paying petitioners.

“Despite this,” the NLJ said, “the Supreme Court overwhelmingly chooses to take up cases from the paid docket, rejecting all but a handful of IFP appeals each year… In the October 2006 term, for example, the court granted certiorari, or review, of 15 petitions filed by indigent litigants. By contrast, the court accepted just four in forma pauperis petitions during its most recent completed term.”

Politico, Top Minnesota prosecutor says ICE cases are sidelining ‘pressing priorities’ (February 5, 2026)

The New York Times, Demanding Support for Trump, Justice Dept. Struggles to Recruit Prosecutors (February 7, 2026)

National Law Journal, At the Supreme Court, a Stark Drop in Appeals From the Poor (January 29, 2026)

~ Thomas L. Root

8th Circuit Remands ‘As Applied’ 2A Drug/Gun Case – Update for February 12, 2026

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

DOPER WITH GUN GETS A 2ND AMENDMENT RE-DO, 8TH SAYS

Alexander Wesley Ledvina was caught high on marijuana with a gun in his car. He admitted he had previously bought guns at the same time he was using weed and coke, but on the ATF forms he had filled out, Alex had denied being a drug abuser.

Alex was convicted of violating 18 USC § 1001 by lying on a government form and violating 18 USC § 922g)(3) by being a drug user in possession of a gun. He appealed, arguing that § 922(g)(3) was unconstitutionally vague as applied to him by not defining the term “unlawful user” of drugs, and the statute that it violated the 2nd Amendment both facially and as applied to him.

Last week, the 8th Circuit gave Alex half a loaf. While § 922(g)(3) as applied to Alex was not unconstitutionally vague, Alex’s challenge that § 922(g)(3) as applied to him violated the 2nd Amendment required a remand to the district court.

In United States v. Cooper, the 8th previously identified “at least two situations when § 922(g)(3) is consistent with the 2nd Amendment” – when drug use (1) made a defendant act like someone who is both mentally ill and dangerous, or (2) would cause a defendant to induce terror, or pose a credible threat to the physical safety of others with a firearm. “Without more,” the 8th held, “drug use generally or marijuana use specifically does not automatically extinguish a person’s 2nd Amendment right.”

The Circuit remanded Alex’s case for the district judge to consider the Cooper factors as they might apply to our weed-smoking defendant.

United States v. Ledvina, Case No. 24-2441, 2026 U.S. App. LEXIS 3743 (8th Cir. Feb 6, 2026)

United States v. Cooper, 127 F.4th 1092 (8th Cir. 2025)

~ Thomas L. Root

Guilty Pleas Are Solid and Eternal – Update for February 10, 2026

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

DIAMONDS AREN’T FOREVER – BUT PLEA AGREEMENTS ARE

When I was a kid, I learned in grade school that diamonds are formed by immense pressure over immense time, and that humanity would never be able to make diamonds because we couldn’t begin to duplicate nature’s processes.

It turns out that Mrs. McGinnis – my 6th grade teacher – was wrong. The diamond business is being upended because factories can now crank out the glistening lab-grown stones, making diamonds’ rarity commonplace and prices plummet.

So James Bond was wrong, too.  Diamonds are not forever.

Last week, however, two Circuits reminded us that plea deals and guilty pleas last longer and are more solid than any chunk of compressed carbon shining on your beloved’s finger.

Waivers Are Forever – Brandi Appleton pled guilty to drug distribution and a felon-in-possession charge. Her plea agreement included the usual waiver of her right to appeal the sentence. Although the Guidelines recommended 41 to 51 months given Brandi’s offense level and criminal history, the district court sentenced her to five years of probation due to her difficult childhood, drug addiction, and the fact that she would probably lose her parental rights if she was locked up. The court was impressed by Brandi having completed a residential drug treatment program and her employment history while on pretrial release.

But Brandi’s good fortune didn’t last. Six weeks into the probation, she was arrested for possession of personal use drugs. The court revoked her probation and gave her 44 months.

Brandi appealed the sentence, but last week, the 6th Circuit threw out the appeal because of her plea agreement waiver.

Brandi argued that the waiver no longer counted because the imprisonment was imposed only after a probation-revocation hearing. The 6th, however, ruled that “revocation sentences are part and parcel of the sentence underlying the original conviction, not a freestanding, unrelated sentence.” Brandi’s initial probation depended on compliance with the terms of supervision, so that her “subsequent term of imprisonment following the revocation of probation was a sentence for the same underlying offense addressed in [the] initial sentence. It follows that Appleton’s appeal waiver applies to the sentence imposed at her probation revocation hearing.”

Unlike diamonds, plea waivers are forever.

Answers Are Forever – Steve Boria took medications for sleeping problems and bipolar disorder the night before he pled guilty to a drug conspiracy and gun charge. During the plea hearing, the district court learned that Steve had taken these medications and asked several follow-up questions to confirm that he understood the proceedings and felt “clearheaded.” Steve decided to challenge his conviction and sentence on appeal despite an appeal waiver in his plea agreement, arguing that the district court violated F.R.Crim.P. 11 and his constitutional rights because it did not ask enough about the impact of his medications.

Last week, the 2nd Circuit disagreed. The judge asked what he had taken, when he had taken it, and whether he understood what was going on in court. Steve said he did. The Court said Steve’s “conduct during the plea hearing raised no red flags,” so the district court fulfilled its Rule 11 obligation to “explore on the record defendant’s ability to understand the nature and consequences of his decision to plead guilty” by confirming that Steve understood the proceedings and felt clearheaded.

Steve’s clear answers to the Judge’s clear questions were binding.

Steve’s additional problem was that his lawyer did not object at the time that the Court had not asked enough, so Steve had to show “plain error,” that is, an obvious mistake that raised a reasonable probability that Steve would not have pled guilty but for the alleged error. This is a great example of the reason for F.R.Crim.P. 52(b) “plain error.” If Steve’s lawyer had objected at the time, the judge probably would have postponed the plea hearing, thus solving the medication problem.

United States v. Appleton, Case No. 25-5051, 2026 U.S.App. LEXIS 3687 (6th Cir., February 5, 2026)

United States v. Boria, Case No. 24-1871, 2026 U.S.App. LEXIS 3472 (2d Cir. February 4, 2026)

~ Thomas L. Root

Martin is Pardon Attorney Short-Timer, CNN Reports – Update for February 9, 2026

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

EDDIE, WE HARDLY KNEW YE

Edward Martin – the man who was too pro-Trump even for some Republican senators to serve as U.S. Attorney in the District of Columbia, being relegated instead to be Pardon Attorney and as Dept of Justice “weaponization” czar – has been quietly stripped of one title and is expected to step down as Pardon Attorney in the next few weeks.

The Wall Street Journal and other outlets reported last week that Martin has been stripped of his duties leading the so-called weaponization working group, formed early last year to take action against government employees deemed hostile to Trump or to conservative ideals.

Martin remains the Justice Department’s pardon attorney, where his duties included reviewing clemency applications and making recommendations to the president. Having once worked from an office department headquarters dubbed the “Freedom Suite,” he has relocated to the pardon attorney’s offices across town. Martin is expected to leave the department in coming weeks.

CNN reported that a DOJ review found that Martin improperly shared secret grand jury material in the investigation of the Senator Adam Schiff case, an investigation into an alleged (and dubious) mortgage fraud matter. CNN’s source said Martin initially falsely denied sharing grand jury material with unauthorized people, but emails soon surfaced showing that he had done so.

CNN said Martin “is expected to leave the department in the coming weeks, according to a source familiar with his plans.’

As Pardon Attorney, Martin prioritized clemency for people connected to the President and the MAGA movement, and people whose families have been major donors to the Trump campaign or projects. He proudly declared on the X formerly known as Twitter that his pardon policy was “No MAGA left behind.”

Martin’s signature clemency actions have been overwhelmingly partisan. Martin’s legal background included making a cottage industry of defending people charged with rioting and other offenses arising from the January 6th, 2001, march on the U.S. Capitol

Wall Street Journal, Trump Ally Ed Martin Loses Weaponization Czar Role (February 2, 2026)

CNN, Justice Department review found Trump ally Ed Martin improperly leaked grand jury material in probe of president’s foes (February 4, 2026)

CNN, Ed Martin: Trump’s one-time weaponization chief is expected to depart Justice Department in coming weeks (February 2, 2026)

~ Thomas L. Root

Where the Boys Aren’t – Update for February 6, 2026

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JUDGE BLOCKS BOP ON EXPOSING TWO WOMEN TO TRANS FEMALES

The Bureau of Prisons last week agreed to a permanent injunction keeping biological male inmates who identify as female separated from two female inmates at FMC Carswell, the BOP’s medical center for women in Ft. Worth, Texas.

Two named female plaintiffs sued the BOP last year, seeking an order that they would not have to “interact in private spaces with the male inmates housed at FMC Carswell. Those inmates include at least four sex offenders, a murderer, and a violent armed bank robber whose goal was to overthrow the United States government on behalf of the ‘Aryan Republican Army’,” according to the website Legal Insurrection.

The Order requires that as long as the two named plaintiffs are housed at  Carswell, the BOP is “permanently enjoined from permitting any male inmate to enter or remain in any privacy area (including showers, restrooms, changing areas, and dormitory spaces) to which either Plaintiff has access, such that Plaintiffs are not exposed to male inmates while showering, toileting, dressing or sleeping.”

Stipulated Order of Permanent Injunction (ECF 137), Fleming v. United States, Case No 4:25-cv-157 (NDTX, February 2, 2026)

Legal Insurrection, Texas Judge Issues Permanent Injunction in Case Keeping Males Away From Incarcerated Women (February 2, 2026)

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