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U.S. Sentencing Commission’s In A Hurry to Get Things Done – Update for March 27, 2023

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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.

SENTENCING COMMISSION ROCKET DOCKET

rocket190620Showing that a federal prisoner has an ‘extraordinary and compelling’ reason for grant of compassionate release is critical to getting a sentence reduction grant under 18 USC § 3582(c)(1)(A). That statute also requires that any grant be consistent with “applicable policy statements” of the U.S. Sentencing Commission.

This is where it’s been sticky. The USSC has one policy statement (USSG § 1B1.13) addressing compassionate release, adopted well before the compassionate release statute was changed by the First Step Act. The same month Congress passed First Step (December 2018), the USSC lost its quorum as multiple members’ terms expired. President Trump nominated some new members a few months later, but the Senate did not approve them. That condition lasted until last spring, when President Biden nominated a complete slate of new members.

USSC2300327Without a quorum, the USSC could not modify § 1B1.13 to account for the changes that First Step made in the § 3582(c)(1)(A). Almost all courts responded by holding that the old § 1B1.13 was no longer an “applicable policy statement” and thus didn’t bind the courts. In a way, that was liberating to the people filing compassionate release motions, because courts were freed from § 1B1.13’s restrictive definition of what constituted “extraordinary and compelling” reasons.

But without a USSC policy statement moderating district court responses, compassionate release grants since 2019 have been characterized by wide disparity. In Oregon, for instance, about 62% of compassionate release filings have been granted. In the Middle District of Georgia, on the other hand, only about 1.5% have been granted.

The new USSC said last its top priority was to amend § 1B1.13, and in January, the Commission issued a draft § 1B1.13 for public comment that contained some very prisoner-friendly proposals and options. The proposed change was part of an extensive set of draft Guidelines amendments that spanned more than a hundred pages of text. The public comment period ended two weeks ago, with over 1,600 pages of comments filed on the compassionate release proposal alone.

The USSC usually rolls out its proposal Guidelines amendments by May 1st. Under 28 USC § 994(p), the amendments go to Congress, which then has 180 days to reject them. If Congress does nothing (which is almost always the case), the changes become effective.

Iminahurry230327But this new USSC is in a hurry to get things done. Last week, the Commission announced an April 5 meeting at which the final § 1B1.13 (and all of the other draft proposed amendments) will be adopted.

If the amendment package goes to Congress that same day, they could become effective as early as Monday, Oct 2nd.

USSC, Public Meeting – April 5, 2023 (March 24, 2023)

– Thomas L. Root

DOJ Seeks Expedited Certiorari on Rahimi – Update for March 23, 2023

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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.

DOJ SEEKS CERTIORARI ON 5TH CIRCUIT RAHIMI DECISION

bad driver230323You may recall Zack Rahimi, a man who responded to the all-too-common embarrassment of having his credit card declined in the usual way. After being unable to use plastic to pay for his Whataburger Patty Melt (ranked as the chain’s best sandwich, by the way), Zack understandably drew his handgun and opened fire on houses, police cars, and pretty much anything else in front of the muzzle of his pistol. He even shot at bad drivers (something we’ve all had the urge to do from time to time).

At the time, Zack was subject to a civil protection order for having stalked an ex-girlfriend. After the locals got done charging him for felony hangry-ness, the Feds weighed in, charging him with possessing a firearm while being subject to a domestic violence protection order, a violation of 18 USC § 922(g)(8). But in the wake of the Supreme Court’s decision last June in N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, the 5th Circuit ruled that prohibiting people from possessing guns because of domestic violence protection orders violates the 2nd Amendment. The Circuit said:

The question presented in this case is not whether prohibiting the possession of firearms by someone subject to a domestic violence restraining order is a laudable policy goal,” the Circuit said. “The question is whether 18 U.S.C. § 922(g)(8), a specific statute that does so, is constitutional under the 2nd Amendment of the Constitution. In the light of N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen… it is not.

stalking230323The government has now filed a petition for writ of certiorari with the Supreme Court, and has done so quickly. The government could have sought en banc review, asking the entire 26-judge court to consider the issue. Instead, the government explained in its petition for writ of cert, due to “the significant disruptive consequences of the Fifth Circuit’s decision, the government is filing this petition for a writ of certiorari on a highly expedited schedule — a little more than two weeks after the issuance of the Fifth Circuit’s final amended opinion — in order to allow the Court to consider the petition before it recesses for the summer.”

The government argues in its petition that the appellate decision “overlooked the strong historical evidence supporting the general principle that the government may disarm dangerous individuals… Although courts interpreting the 2nd Amendment must consider text, history, and tradition, they should not focus on whether the law at issue has ‘a historical twin,’” the government contends “To the contrary, this Court emphasized that ‘even if a modern-day regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass constitutional muster.’”

doitnow160817Writing in his Sentencing Law and Policy blog, Ohio State University law professor Doug Berman wonders whether the Supreme Court will be amenable to the government’s request to “take up the case on an expedited basis even before there is a direct circuit split.” He suggests that “expedited” may have a more glacial meeting at the high court: “I suspect the Justices will get back to these Second Amendment matters pretty soon. But ‘pretty soon’ in Supreme Court timelines does not really mean ‘soon’…”

There have been District Court decisions elsewhere that have relied on Bruen to gut § 922(g) limitations on gun possession by people under indictment, possession of guns with obliterated serial numbers, and possession of guns by marijuana users.  In the 3rd Circuit, the appeals court is examining whether the § 922(g) proscription on gun possession by people with felony convictions can survive Bruen.  And on Monday, a U.S. District Court in the Central District of California struck down the state’s Unsafe Handgun Act – which required all handguns sold in the state to have three features which not a single handgun in the world has – as unconstitutional under Bruen.

Perhaps the legal tsunami of attacks on § 922 alone – even absent a circuit split – will force SCOTUS’s hand and bring us another gun decision sooner rather than later.

United States v. Rahimi, Case No. 21-11001, — F.4th —, 2023 U.S. App. LEXIS 5114 (5th Cir., March 2, 2023) (amended opinion)

Petition for Writ of Certiorari, United States v. Rahimi, Case No. 22-915 (Supreme Court, filed March 17, 2023)

N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, — U.S. —, 142 S. Ct. 2111, 213 L. Ed. 2d 387  (2022)

The Hill, DOJ asks SCOTUS to review ruling that overturned firearm ban for those with domestic violence restraining orders (March 18, 2023)

Sentencing Law and Policy, With DOJ asking, will SCOTUS quickly take up a post-Bruen case on gun possession by thoe subject to DV orders? (March 20, 2023)

Boland v. Bonta, Case No. SACV 22-01421-CJC (March 20, 2023)

Thomas L. Root

7th’s Lack of Compassion is Disturbing – Update for March 21, 2023

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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.

7TH CIRCUIT ISSUES DOUBLE-BARRELED COMPASSIONATE RELEASE DENIALS

Nuthin Times Nuthin May Be More Than Nuthin’: Stanley Vaughn, who is doing consecutive 240- and 262-month sentences, moved for compassionate release because of COVID-19 and his record of programming. He also argued that due to decisions issued since his conviction, he could not receive nearly as high a sentence if he was convicted today.

vadercompassion230321Last week, the 7th Circuit affirmed a district court denial of his compassionate release motion. Holding that “COVID-19 has been a fact of life for more than three years,” the 7th observed that “for prisoners who have received a vaccine, the risk of serious complications should they develop a breakthrough infection is modest. Vaughn has not provided or pointed to any medical data suggesting that his combination of conditions puts him at serious risk should he develop a breakthrough infection.”

Stan’s argument about completing classes left the appeals court equally unimpressed: “Taking classes while incarcerated is common rather than extraordinary. If data showed that completion of particular classes reliably put prisoners on the path to a law-abiding life, that might satisfy the statutory requirement, but Vaughn has not supplied any information along these lines.”

The Circuit may as well demand that Vaughn prove that the sun will rise in the east tomorrow.  From Congressional findings underpinning the First Step Act to the most current Dept of Justice reports on the effectiveness of the Act, evidence shows that the more evidence-based recidivism reduction classes a prisoner completes and the lower his or her recidivism score, the less likely he or she is to return to prison.

FSATable230320

After reducing Stan’s programming achievements to an asterisk,  the Circuit ruled that his career offender classification and not a statutory minimum drove the 262-month sentence. Stan’s reliance on United States v. Ruth, was misplaced, the Circuit said., and does not affect the career-offender calculation. “At all events,” the 7th noted, “we have held that Ruth does not justify compassionate release as an indirect means to achieve retroactive application of that decision.”

An interesting aspect of the ruling is the Circuit’s endorsement that individual reasons may be aggregated to meet the “extraordinary and compelling” standard for compassionate release: “If we conceive of ‘extraordinary and compelling reasons’ as those differentiating one prisoner’s situation from 99% of other prisoners, it is easy to see how Circumstance X could be true of only 10% of prisoners, Circumstance Y of 10%, and Circumstance Z of 10% – each insufficient to meet the threshold, but if they are independent then collectively enough to place the applicant among only 0.1% of all federal prisoners… Our point… is that no matter how the threshold is defined, a combination of factors may move any given prisoner past it, even if one factor alone does not.”

Despite this holding, the Circuit concluded that however you stacked Stan’s reasons, they fell short.

Legal Error Is Neither Extraordinary Nor Compelling: Leonard Williams filed for compassionate release because a district court treated him as having a prior conviction for unlawful drug delivery, which increased his minimum sentence to 10 years. But United States v. Ruth held that his conviction for delivery of cocaine in Illinois does not satisfy the criteria of a “serious drug felony” under 21 USC § 841(b)(1)(B), meaning his sentence was longer than the law required.

Last week, the 7th Circuit said ‘so what?’

extraordinaryerror230321“As we put it in Von Vader,” the 7th said, “the sort of ‘extraordinary and compelling’ circumstance that § 3582(c)(1) addresses is some new fact about an inmate’s health or family status, or an equivalent post-conviction development, not a purely legal contention for which statutes specify other avenues of relief—avenues with distinct requirements, such as the time limits in § 2255(f) or the need for a declaration by the Sentencing Commission that a revision to a Guideline applies retroactively… There’s nothing ‘extraordinary’ about a legal error by a district court (or a court of appeals), and the law provides methods other than compassionate release for dealing with claims of legal error.”

United States v. Vaughn, Case No. 22-2427, 2023 U.S.App. LEXIS 6171 (7th Cir., March 15, 2023)

United States v. Williams, Case No. 22-1981, 2023 U.S.App. LEXIS 5877 (7th Cir., March 13, 2023)

– Thomas L. Root

With CARES Act Almost Over, BOP Streamlines Process – Update for March 20, 2023

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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 STEPS ON THE GAS IN CARES ACT’S FINAL DAYS

CARESEnd230131President Biden will end the COVID-19 national emergency on May 11, 2023. The immediate effect for the Federal Bureau of Prisons is that the agency will lose its authorization to place prisoners in extended Coronavirus Aid, Relief, and Economic Security (“CARES“) Act,  home confinement 30 days later.

Among the myriad of federal responses mandated by the bloated CARES Act, a $2.2 trillion response to COVID-19 that runs some 324 pages in Volume 134 of the United States Statutes, the BOP was given authority in § 12003(b)(2) to “lengthen the maximum amount of time for which the Director is authorized to place a prisoner in home confinement under the first sentence of section 3624(c)(2) of title 18, United States Code, as the Director determines appropriate.” Practically speaking, this gave the BOP the right to place prisoners on home confinement indefinitely, despite the old 18 USC 3624(c)(2) limitation of 10% of the sentence up to a maximum of six months.

The CARES Act authority continues during what § 12003(a)(2) calls the “covered emergency period.” This period ends “on the date that is 30 days after the date on which the national emergency declaration terminates.” In other words, with the national emergency ending on May 11, the “covered emergency period” ends on Saturday, June 10th.

As the BOP’s CARES Act authority sunsets, some have speculated the Bureau would slow the transfer of prisoners to home confinement. But writing in Forbes last week, Walter Pavlo reported that the BOP’s Office of Public Affairs told him, “The Bureau of Prisons (BOP) has not made efforts to slow CARES Act home confinement placements as the end of the CARES Act approaches. We have issued no guidance regarding this matter.” Pavlo called that “welcome news to prisoners who meet the eligibility requirements for CARES Act placement.”

caresbear230124Hard evidence the BOP is pushing CARES Act release arrived last week with the report of an internal BOP memorandum dated March 9 that relaxed prior BOP policy on CARES Act approvals. The BOP has established criteria for CARES Act placement, including serving a minimum portion of one’s sentence, prior disciplinary reports, and history of violence. When a prisoner did not meet all of the conditions, he or she could still be recommended by the institution for home confinement, but the referral had to be approved by a BOP Central Office Home Confinement Committee.

One of the HCC’s practices was to solicit comment from the US Attorney’s Office that had prosecuted the inmate. Pavlo noted that “in many cases, prosecutors did oppose rather than just defer to the BOP, who know best how to house prisoners in its care.”

Up to now, those prisoners denied CARES Act placement by the HCC have been required to go back to Central Office later even when they met all CARES Act criteria. Pavlo said, “This usually led to the same opposition and denial.” But the March 9 memo ends the endless cycle of HCC approval. It says, “Effective with the issuance of this memo, referrals for home confinement placement no longer need to be submitted to the HCC if the inmate now meets all established criteria.” Now, if the inmate meets all BOP criteria, referrals for CARES Act will now be sent directly to the appropriate Residential Reentry Management Office . The RRM “will retain the final authority based on the referral and availability of community resources,” the memo says.

noplacelikehome200518Pavlo writes that “[m]any are also hoping that the DOJ extends the 30 days after the end of CARES Act to something that takes into consideration the success of the program and the conditions of prison.” Unfortunately, the hopes of those who are looking for a magical extension are misplaced. Because the BOP’s authority to place people in home confinement is limited by statute, any extension of a CARES Act-style home confinement will have to come from Congress.

Writing last week in his Sentencing Law and Policy blog, Ohio State law professor Doug Berman said, “Though it makes sense to wind down the pandemic-driven authority to transfer certain persons from federal prison to home confinement, Congress and the US Sentencing Commission and the Justice Department should carefully study the apparent success of this CARES Act program and consider ways to give BOP broader authority in non-pandemic times to move low-risk prisoners into home confinement.”

BOP, Home Confinement Criteria and Guidance (Addendum) (March 9, 2023)

Forbes, Bureau Of Prisons Sees End Of Cares Act Home Confinement, Some Prisoners Will Be Left Behind (March 14, 2023)

Sentencing Law and Policy, With pandemic legally winding down, should Congress build in CARES Act success to greatly expand BOP home confinement authority? (March 15, 2023)

– Thomas L. Root

Circuits Go 1-1 In Wrestling Match with Taylor – Update for March 16, 2023

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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.

ONE UP, ONE DOWN ON § 924

Two Circuits checked in last week on crimes of violence and 18 USC § 924, the statute that mandates a consecutive mandatory minimum sentence when a gun is possessed or used during drug or violent offenses. When the dust settled, defendants went one-and-one.

gunknot181009If 924(c) Is Vacated, 924(j) Must Be, Too: In 2018, Dwaine Colleymore pleaded guilty to four criminal charges stemming from an attempted robbery, during which he fatally shot a man. Dwaine pleaded guilty to (1) conspiracy to commit Hobbs Act robbery in violation of 18 USC § 1951; (2) attempted Hobbs Act robbery in violation of 18 USC § 1951 and 2; (3) discharging a firearm during and in relation to a crime of violence in violation of 18 USC § 924(c); and (4) murdering a person with a firearm during and in relation to a crime of violence in violation of 18 USC § 924(j)(1). The judge sentenced him to 525 months (43+ years).

Dwaine was still on appeal when the Supreme Court decided United States v. Taylor last June. Last week, the 2nd Circuit reversed his §§ 924(c) and 924(j) convictions.

The Circuit ruled that after Taylor, attempted Hobbs Act robbery no longer qualifies as a crime of violence under § 924(c)(3)(A) “and therefore cannot serve as a predicate for Dwaine’s conviction under § 924(c)(1)(A). Furthermore,” the 2nd said, because an element of a § 924(j) murder offense is that the defendant killed someone ‘in the course of a violation of [924(c)],’ attempted Hobbs Act robbery also cannot serve as a predicate for Dwaine’s conviction under § 924(j)(1).”

“Having given due consideration to Taylor,” the Circuit held, “we vacate Colleymore’s convictions on Counts Three and Four.” The case was remanded to the district court for resentencing.

hobbs230316Beating the ACCA Like a Rented Mule: The 7th Circuit last week embarked on an exercise in pretzel logic to conclude that Hobbs Act robbery itself is crime of violence under the Armed Career Criminal Act.

Lavelle Harley argued that while § 924(c) defined a crime of violence as physical force against a person or property, the ACCA (18 USC 924(e)(2)) defined a crime of violence as physical force against a person only.

That should have ended matters. After all, a Hobbs Act robbery can be committed “by means of actual or threatened force, or violence, or fear of injury, immediate or future, to [a victim’s] person or property” 18 USC § 1951(b)(1). So it’s pretty clear that Hobbs Act robbery is not a crime of violence under the ACCA (although it is under 924[c]).

That wasn’t the result the 7th Circuit wanted. “We have to look beyond the force clause,” the 7th said, “to determine if Hobbs Act robbery committed using force against property qualifies as a violent felony under some other provision of ACCA.”

Under the ACCA‘s “enumerated clause,” extortion is listed as a crime of violence. “The question,” the Circuit explained, “then becomes whether a conviction of Hobbs Act robbery for using force against property fits within ACCA extortion.”

hobbes230316The Circuit halfway admitted it was using smoke and mirrors, noting that “a careful reader may be pausing at this point and questioning why we are using the generic definition of extortion to interpret ACCA’s enumerated clause when the Hobbs Act provides its own, similar definition… But remember the question we are trying to answer and the analysis that the categorical approach requires. We look to the Hobbs Act only to understand the elements of Hobbs Act robbery, the prior conviction at issue here. Once we understand those elements, our focus turns to ACCA… We assess whether each way of committing Hobbs Act robbery fits within ACCA’s definition of ‘violent felony’ in § 924(e)(2)(B). Put most simply, the Hobbs Act does not tell us what constitutes extortion under ACCA. That answer has to come from ACCA itself.”

But the Hobbs Act does define extortion, saying it is “the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.”

Nevertheless, the 7th Circuit managed to conclude that “generic extortion encompasses Hobbs Act robbery using force against property. Make no mistake, the analysis is difficult, and the issue is close.”

hobbestiger230316The decision flies in the face of the rules of statutory construction, which say that when one definition in a single statute’s subsection differs from a definition in another subsection, Congress must be presumed to have intended the distinction. But the 7th Circuit intended to hold that a Hobbs Act robbery was a crime of violence for purposes of the ACCA, and through an intellectually dishonest opinion, did exactly that.

United States v. Collymore, Case No 19-596, 2023 USAppLEXIS 5388 (2d Cir, Mar 7, 2023)

United States v. Hatley, Case No 21-2534, 2023 USAppLEXIS 5290 (7th Cir, Mar 6, 2023)

– Thomas L. Root

Drugs, Guns and Rockin’ Appeals – Update for March 14, 2023

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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.

SPEAKING OF GUNS…

iloveguns221018… as we were yesterday (at least obliquely) you may recall that last month an Oklahoma district court threw out an 18 USC § 922(g)(3) indictment against a man for possessing a gun along with some personal-use marijuana. The district court dismissal was based on the 2022 Supreme Court New York State Rifle & Pistol Ass’n v. Bruen decision.

Last Friday, the government filed a notice of appeal, asking the 10th Circuit to review the case.

Another case, Cooper v. Attorney General, brought by three Floridians using medical marijuana, is currently being briefed in the 11th Circuit. That case also questions § 922(g)(3)’s constitutionality.

Order (ECF 36), United States v. Harrison, Case 5:22-cr-00328, 2023 US DistLEXIS 18397 (WDOkla, February 3, 2023)

Marijuana Moment, Justice Department Appeals Federal Court Decision That Struck Down Gun Rights Ban For Marijuana Consumers (March 6, 2023)

New York State Rifle & Pistol Ass’n v. Bruen, 597 US —, 142 SCt 2111 (2022)

Cooper v. Attorney General, Case No 22-13893 (11th Cir)

– Thomas L. Root

DOJ Called Out On Two-Faced Acquitted Conduct Position – Update for March 13, 2023

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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.

DOJ SPEAKS WITH FORKED TONGUE

In late January, the Department of Justice got the Supreme Court to place a hold on four petitions for certiorari that, if granted, would have the Court decide whether acquitted conduct can be used in sentencing. DOJ pulled this off by promising SCOTUS that the proposed Guidelines amendments were going to fix the problem.

Then, DOJ showed up at the Sentencing Commission to tell it that it lacked the power to make the acquitted conduct change. Last week, the Supreme Court petitioner cried foul.

Acquitted conduct sentencing is a district court’s use of conduct a jury had acquitted a defendant of in setting Guidelines and deciding whether to depart from those Guidelines in sentencing a defendant.

Real-life example: Last week, the 7th Circuit upheld Phillip Robinson’s sentence. Phil was charged with a drug distribution conspiracy and an 18 USC § 924(c) for using a gun during a drug transaction. The jury convicted him of the drug conspiracy but acquitted him on the § 924(c). At sentencing, the district court pumped up Phil’s Guidelines for possessing a gun “in connection with the cocaine conspiracy.” The Circuit said that under the Supreme Court’s 1997 United States v. Watts decision, using the acquitted conduct to enhance Phil’s sentence is fine.

The petitions in front of SCOTUS, led by McClinton v United States, argue that sentencing defendants based on conduct a jury acquitted them of violates the 6th Amendment. The Supremes have relisted McClinton multiple times (“relisting” meaning the justices have considered the petitions at their weekly conference and then deferred a decision to the next conference, a “relist” meaning that the petition have substantial support).

On January 12th, the Sentencing Commission rolled out its draft proposed Guidelines amendments for public comment. One of them would ban the use of acquitted conduct in setting Guidelines levels. If adopted, the change would mean that Phil’s Guidelines would be set based only on the coke conspiracy without reference to the gun.

nothingtosee230313In response, DOJ told the Supreme Court that “[t]his Court’s intervention” was not “necessary to address” the widespread problem of acquitted-conduct sentencing because “the Sentencing Commission could promulgate guidelines to preclude such reliance.”

A few weeks later, DOJ told the Sentencing Commission that it could not amend the Guidelines to curtail the use of acquitted conduct at federal sentencing. DOJ argued that USSC lacked the power to adopt the amendment. The proposal “would be a significant departure from long-standing sentencing practice” because the Supreme Court “has continued to affirm [in Watts] that there are no limitations on the information concerning a defendant’s background, character, and conduct that courts may consider in determining an appropriate sentence.”

McClinton has fired back that DOJ’s “expansive reading of Watts” in front of the Sentencing Commission “is deeply at odds with the far more limited understanding the government has presented to this Court… And contrary to its assurances to this Court, DOJ now contends that the Sentencing Commission lacks authority to promulgate amendments addressing the practice.”

two-faced230313Reuters said last week that DOJ’s position on this issue “does not square with agency leadership and President Joe Biden’s forceful commitments to addressing racism in the justice system and reducing mass incarceration.”

True, but what is more notable is that DOJ can tell the Supreme Court to deny McClinton review because the USSC is going to fix the acquitted conduct problem while at the same time telling USSC that it is not allowed to fix the problem. The government has prosecuted people for less duplicity than that.

Letter of DOJ to Supreme Court, Case No 21-1557, January 18, 2023)

United States v. Robinson, Case No 22-1472, 2023 USAppLEXIS 5625 (7th Cir, March 9, 2023)

Supplemental Brief of Dayonta McClinton, Case No 21-1557 (Supreme Ct, March 7, 2023)

United States v. Watts, 519 US 148 (1997)

Reuters, U.S. Justice Dept takes a hard line on sentencing reform (March 7, 2023)

Sentencing Law and Policy, DOJ testimony to Sentencing Commission on acquitted conduct sentencing generates notable responses (March 8, 2023)

– Thomas L. Root

A 2255 Wolf in Compassionate Release Sheep’s Clothing – Update for March 10, 2023

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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.

A COMPASSIONATE RELEASE MOTION CANNOT BE A 2255, 10TH CIRCUIT SAYS

wolf-CR-2255motion230310More than one federal prisoner has sought a compassionate release under 18 USC § 3582(c)(1)(A) on the grounds that he or she should never have been convicted in the first place. While perceived unfairness has its uses in acompassionate release motion, a 10th Circuit decision last week reminds everyone that a movant must tread carefully in raising it.

Monterial Wesley, convicted of drug trafficking, filed and lost a motion to set aside his conviction brought under 28 USC § 2255. Over 10 years later, he filed a compassionate release motion arguing that the “extraordinary and compelling reasons” justifying the time cut he sought included sentence disparity and the alleged fact that his prosecutor suborned perjury about the drug quantities attributable to him.

The district court concluded that the claim of prosecutorial misconduct must be interpreted as a challenge to the constitutionality of his conviction and sentence, which can only be brought under 28 USC § 2255. Recall that under 28 USC § 2255(h) and 28 USC § 2244, a § 2255 motion is pretty much a one-and-done deal: getting permission to file a second or successive § 2255 is pretty tough to do. Because Monterial had previously brought a § 2255 motion attacking the same judgment and because the 10th Circuit had not authorized him to file another one under 28 USC § 2244, the district court dismissed that portion of the compassionate release motion for lack of jurisdiction.

Last week, the 10th Circuit agreed that Monterial’s motion included a successive § 2255 claim because it attacked the validity of his sentence. After all, the Circuit said, if Monterial was right about the prosecutor, his conviction was unconstitutional. Nothing in the compassionate release statute – which tells a district court to focus on 18 USC § 3553(a) sentencing factors – or in the existing Guidelines policy statement (which is being changed in the next few months) suggests that Congress or the Commission ever anticipated rolling an attack on the conviction into a  compassionate release  motion.

Finally, the 10th said, the district court can only shorten a sentence, not invalidate a conviction, in response to a compassionate release motion. Even if Monterial was right that his conviction was unconstitutional, there was nothing at this point that the district court can do about it.

mulligan190430The Circuit ruled that Monterial’s prosecutorial misconduct claim was a successive § 2255 and had to be cut out of his compassionate release  motion.

Ironically, one of the proposed § 1B1.13 Guidelines amendments options now being considered would hold that an extraordinary and compelling reason could include that “[a]s a result of changes in the defendant’s circumstances [or intervening events that occurred after the defendant’s sentence was imposed], it would be inequitable to continue the defendant’s imprisonment or require the defendant to serve the full length of the sentence.”

While this might not have saved Monterial’s claim, it would help people whose sentences were imposed based on Guidelines factors – such as “career offender” – that could not be imposed now.

United States v. Wesley, Case No. 22-3066, 2023 U.S. App. LEXIS 4894 (10th Cir, February 28, 2023)

US Sentencing Commission, Sentencing Guidelines for United States Courts, 88 FR 7180 (February 2, 2023)

– Thomas L. Root

SCOTUS To Determine Whether “And” Means “Or” – Update for March 9, 2023

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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.

SCOTUS TO REVIEW “DRUG SAFETY VALVE”

The Supreme Court last week granted review to Pulsifer v, United States  to decide an 18 USC § 3553(f) “drug safety valve” question.

The “safety valve” provides a second chance for nonviolent offenders who do not have “more than 4 criminal history points, excluding any criminal history points resulting from a 1-point offense… (B) a prior 3-point offense… AND (C) a prior 2-point violent offense, as determined under the sentencing guidelines.” (The emphasis is mine, not the statute’s).

words221110If an offender qualifies, he or she can be sentenced without regard to statutory mandatory minimum sentences and with a special 2-level Guidelines “discount” on his or her total offense level.

The question is whether the “and” in 18 USC § 3553(f)(1) means “and” or just “or.” In other words, do defendants qualify for the “safety valve”: as long as they do not have ALL of (A) more than 4 criminal history points, (B) a 3-point offense, and (C) a 2-point offense, or do defendants satisfy the provision only so long as they do not have (A) more than 4 criminal history points OR (B) a 3-point offense OR (C) a 2-point offense.

The interpretation is currently subject to a deep circuit split. Ohio State University law professor Doug Berman said last week in his Sentencing Law and Policy blog that resolution of Pulsifer “will impact thousands of drug defendants sentenced in federal courts every year.”

Pulsifer v. United States, Case No. 22-240 (certiorari granted February 27, 2023)

Sentencing Law and Policy, SCOTUS grants certiorari to review reach of First Step Act’s expansion of statutory safety valve (February 27, 2023)

– Thomas L. Root

7th Circuit Does Violence to Taylor In Hobbs Act Decision – Update for March 8, 2023

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7th CIRCUIT STRAINS TO FIND AIDING AND ABETTING HOBBS ACT ROBBERY IS VIOLENT

It’s been pretty clear – at least clear to me – ever since the Supreme Court’s United States v. Taylor decision last June that the aiding-and-abetting doctrine was due for a “crime of violence” makeover.

violence181008A little explainer here: If a person commits a crime of violence while possessing, carrying or using a gun, he or she can be committed not just of the crime of violence but also of an add-on gun offense under 18 USC § 924(c). Prosecutors love § 924 counts, because the offense carries a mandatory consecutive sentence of at least five years (more if the perp brandishes or fires the gun).

But what exactly is a “crime of violence?” The definition is not as easy to understand as one might think. The latest entry in cases trying to parse the meaning was last June’s Taylor decision.

Taylor held that attempted Hobbs Act robbery was not a crime of violence, because one could attempt a Hobbs Act robbery without actually attempting, threatening or using violence. If, for example, Dexter Defendant is arrested in a jewelry store parking lot with masks and a gun as he approaches the front door, he could have been convicted of an attempted Hobbs Act robbery without trying to threaten or employ violence at all. In fact, the people inside the store might not even be aware that they were about to be robbed. Sure, Dexter can go down for an attempted Hobbs Act robbery (and get plenty of time for that), but he could not be convicted of a § 924 offense.

The same can be argued for aiding and abetting a crime.

violence161122Dejuan Worthen and his brother robbed a gun store. His brother shot and killed the proprietor. Dejuan was convicted of aiding and abetting the Hobbs Act robbery by being the getaway driver. He was also convicted of a § 924(c) offense for using a gun during a crime of violence (the Hobbs Act robbery).

Dejuan argued that aiding and abetting a Hobbs Act robbery was not crime of violence after Taylor. Dejaun contended that he could have aided or abetted his brother’s crime by providing the gun to his brother the night before the robbery, not even knowing when the crime was to happen.

Last week the 7th Circuit disagreed, suggesting that the question may end up at the Supreme Court.

The 7th said that the “question becomes whether accessory liability changes the analysis” that a Hobbs Act robbery is a crime of violence The Circuit said aiding-and-abetting is not a separate offense under 18 USC § 2, but instead “just establishes that someone who aids and abets a federal crime has committed the federal crime itself.” That is so, but 18 USC § 2 does the same for “attempting” a crime, a fact that didn’t stop Taylor from holding that attempting a crime of violence  is not a crime of violence  itself.

The 7th admitted that “because an aider and abettor does not need to participate in each element of the offense, a defendant can aid and abet a Hobbs Act robbery without personally using force — say, for example, by serving as the getaway driver from a violent robbery.” But because the Supreme Court rejected a similar argument in Gonzales v Duenas-Alvarez, a 2007 case in which aiding and abetting a state theft offense was a “theft offense” subjecting a noncitizen to removal under the immigration laws and because the Taylor decision did not overrule the 15-year-old decision, the same reasoning applied here.

violent170315The Circuit’s reasoning is flawed. No one questions whether Dejuan was guilty of the Hobbs Act robbery as an aider and abettor, just like no one questions whether Taylor was guilty of Hobbs Act robbery because of his attempt. The issue is different: was Dejuan’s aiding and abetting enough to make him liable under the § 924(c) statute, too?

When Taylor was decided, it was pretty clear that the same reasoning suggested that aiding and abetting a crime of violence was not a crime of violence itself. Until Taylor, almost all of the circuits had ruled the other way. The same could happen to liability for aiding and abetting a crime of violence.

United States v. Worthen, Case No. 21-2950, 2023 U.S. App. LEXIS 5133 (7th Cir., March 2, 2023)

– Thomas L. Root