All posts by lisa-legalinfo

USSC Amendments Going Retro? Your Opinion is Wanted – Update for May 6, 2024

Leave a comment

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

GUIDELINE AMENDMENT RETROACTIVITY COMMENTS OPEN

retro160110The Sentencing Commission published the 2024 proposed Guideline amendments in the Federal Register last Friday, opening up a public comment period on whether certain proposals should be made retroactive.

The publication of the proposed amendments, a required step in their adoption, provides that the proposed changes are intended to become effective November 1, 2024. The statute authorizing the Sentencing Commission (28 USC § 994) gives Congress the right to override some or all of the changes, a power that has almost never been used in the Guidelines’ 28 years of existence.

The proposed retroactivity would apply to the

• the acquitted conduct amendment (USSG § 1B1.3);

• a change to juvenile sentences that eliminates adding 2 points for prior juvenile incarcerations of more than 60 days;

•  a change to §2K2.1(b)(4)(B)(i) to provide that the 4-level enhancement gun serial number obliteration applies only if the serial number has been modified such the original number “is rendered illegible or unrecognizable to the unaided eye;” and

• a change to Commentary in USSG § 2K2.4 to permit grouping of a § 922(g) gun count with a drug-trafficking count where the defendant has a separate 18 USC § 924(c) conviction based on drug trafficking.

retro240506Comments on retroactivity should be filed by June 21, 2024. Written reply comments, which may only respond to issues raised during the original comment period, should be received not later than July 22, 2024.

Comments may be submitted electronically to the Commission or mailed to

US Sentencing Commission
One Columbus Circle NE, Suite 2-500
Washington, DC 20002-8002
Attn: Public Affairs—Issue for Comment on Retroactivity.

Sentencing Guidelines, 89 FR 36853 (May 3)

– Thomas L. Root

Feds To Reschedule Marijuana As Prescription Drug – Update for May 3, 2024

Leave a comment

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

MARIJUANA BECOMING OFFICIALLY ‘COOL’

mrnatural240503The Justice Department last Tuesday said that it had recommended easing restrictions on marijuana in what could amount to a major change in federal policy.

A DOJ spokeswoman said the proposed rule, which hasn’t yet been made public, would downgrade marijuana from Schedule I to Schedule III, making it obtainable with a prescription.

The change does not end the criminalization of the drug. However, it is a significant shift in the government’s view of the safety and use of marijuana for medical purposes and reflects President Biden’s effort to liberalize marijuana policy in a way that puts it more in line with the public as increasingly more Americans favor legalizing the drug. The proposal would recognize the medical uses of marijuana and acknowledge it has less potential for abuse than some of the nation’s more dangerous drugs.

Rescheduling would not legalize marijuana outright for recreational use. But there can be little doubt that such a change–recreational cannabis (the politically popular term for marijuana) is now legal in 24 states–is coming.

The change may also lead to beneficial changes in Section 2D1.1 of the U.S. Sentencing Guidelines, where the base offense level for marijuana could drop in response to its falling from Schedule I to III.

In October 2022, Biden pardoned thousands of people convicted of simple marijuana possession under federal law and called upon regulators to review whether the drug should be reclassified, saying “it doesn’t make sense” that the government controls pot more tightly than cocaine or fentanyl.

marijuanahell190918Once the Office of Management and Budget signs off, the DEA will take public comment on the plan to move marijuana from its Schedule I–alongside heroin and LSD–to Schedule III, alongside ketamine and some anabolic steroids. After public comment and review by an administrative judge, the agency will publish the final rule.

“Today, the Attorney General circulated a proposal to reclassify marijuana from Schedule I to Schedule III,” DOJ Director of Public Affairs Xochitl Hinojosa said in a statement. “Once published by the Federal Register, it will initiate a formal rulemaking process as prescribed by Congress in the Controlled Substances Act.”

The Los Angeles Times said, “Late last year, Biden pardoned people who were convicted of using marijuana on federal land. That tiny step was merely a down payment on his promise of decriminalization. So is the Justice Department’s most recent move. The federal government should pick up the pace.”

Some in the government may have done so. Last Wednesday, Senate Majority Leader Charles Schumer, (D-NY), Senate Finance Committee Chairman Ron Wyden (D-OR), and Sen Cory Booker (D-NJ) reintroduced the Cannabis Administration and Opportunity Act, legislation to end federal marijuana prohibition by removing it totally from the Controlled Substances Act.

The bill also aims to empower states to create their own cannabis laws; ensure federal regulations protect public health and safety; and prioritize restorative and economic justice, according to the sponsors.

marijuana221111While the DEA’s move to reclassify marijuana is a “necessary step” that’s “long overdue,” Schumer said, it’s not the end of the story. “It’s not all we need to do,” he said. “It’s time for Congress to wake up to the times and do its part by passing the cannabis reform that most Americans have wished for. It’s past time for Congress to catch up with public opinion and to catch up with the science.”

New York Times, Justice Dept. Recommends Easing Restrictions on Marijuana (April 30, 2024)

Wall Street Journal, Biden Administration Aims to Reclassify Marijuana as Less Dangerous Drug (April 30, 2024)

Associated Press, US poised to ease restrictions on marijuana in historic shift, but it’ll remain controlled substance (April 30, 2024)

Los Angeles Times, Editorial: Reclassifying marijuana is not decriminalization, but is a welcome step in that direction (May 1, 2024)

Cannabis Business Times, Senate Democrats Introduce Bill to Federally Legalize Cannabis (May 1, 2024)

S.4226, A bill to decriminalize and deschedule cannabis, to provide for reinvestment in certain persons adversely impacted by the War on Drugs, to provide for expungement of certain cannabis offenses, and for other purposes (May 1, 2024)

– Thomas L. Root

“And” Really Does Mean “Or” – Update for April 30, 2024

Leave a comment

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

CLARITY 1, DEFENDANTS 0

When I reported last week on the Sentencing Commission’s amendment proposals for 2024, I failed to mention its proposed change to the new USSG § 4C1.1, the criminal history guideline for the zero-point reduction.

virgin171201Under § 4C1.1, someone with no criminal history points is still Criminal History Category I but gets a 2-level reduction in his or her offense category. The Guideline has a list of conditions: no guns, no sex crime, no violence, and more. Condition 4C1.1(a)(10) requires that “the defendant did not receive an adjustment under 3B1.1 (Aggravating Role) and was not engaged in a continuing criminal enterprise, as defined in 21 USC § 848.”

If you stayed awake in high school English, you will read this as excluding people from the beneficial reduction if they both got a § 3B1.1 aggravating role and were convicted of an 848 continuing criminal enterprise (shorthand for a drug-based racketeering enterprise). That universe would be populated by a pretty small number of people.

The government naturally has argued to courts that the condition doesn’t mean that at all.  Instead, the government says “and” really means “or.”  That is, if you got a 2-level, 3-level or 4-level enhancement for being either a leader or an organizer or a supervisor or a manager of the criminal activity–the so-called aggravating role adjustment–you could not benefit from the zero-point reduction. Likewise, if you were convicted of a § 848 continuing criminal enterprise–regardless of how you might have been scored for a § 3B1.1 leadership enhancement–you were disqualified.

vanishingpt240430The district courts have largely agreed with the government. We should hardly be surprised. About 18,700 people were sentenced for federal drug offenses in Fiscal Year 2023, but a vanishingly few of those (seven defendants) were convicted under the drug kingpin statute (21 USC § 848).  About 6.3% of the 18,700 sentenced prisoners received a § 3B1.1 aggravating role adjustment (just under 1,200 defendants).   As you can imagine, the intersection of the 1,200 people who got aggravating role adjustments and the seven with § 848 convictions amounts to no more than a rounding error.

What’s more, the Supreme Court just interpreted an “‘and’ means ‘or'” case a month ago, and concluded that in the 18 USC 3553(f) drug “safety valve,” similar stilted language to that employed in Condition 4C1.1(a)(10) should be read so that “and” really is disjunctive, meaning “or.”  See Pulsifer v. United States.

Admitting that the current 4C1.1 condition 10 has created “confusion,” the USSC has now proposed breaking condition 10 into two conditions, so it will read:

(10) the defendant did not receive an adjustment under § 3B1.1 (Aggravating Role) and;

(11) the defendant was not engaged in a continuing criminal enterprise, as defined in 21 USC 848.

and-or240319Like the other proposed amendments, this change is intended to be effective in November.

I apologize for not mentioning this last week. I was too hasty and inattentive.  In this case,  my “and” probably means “or.”

USSC, Amendments to the Sentencing Guidelines (Preliminary) (April 17, 2024)

USSC, FY 2023 Sourcebook of Federal Sentencing Statistics

Pulsifer v. United States, 144 S.Ct. 718, 218 L,Ed,2d 77, 2024 U.S. LEXIS 1215 (March 15, 2024)

– Thomas L. Root

The Wheels On The Bus – Update for April 29, 2024

Leave a comment

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

PUNISHING THE VICTIMS, DISSING THE JUDGE

wheelsonbus240429Nearly all inmates had been transferred out of the beleaguered Bureau of Prisons women’s facility FCI Dublin by last Tuesday, according to a BOP spokesman, with only about 23-40 prisoners–all of whom have pending releases or halfway house/home confinement transfers scheduled–remaining at the facility.

Several news outlets last week reported that the hasty transfers bore more than a passing resemblance to the Bataan Death March. Inmates reported they went without water or sanitary products, and some ended up sitting in their own excrement. A prisoner’s parent told KTVU-TV in Oakland that when the inmates asked where they were going, 

“They were told ‘none of your business,’ or ‘SFTU, see, this is why Dublin is closing, you all need to learn to keep your mouths shut. I gave up my Saturday off to move you girls.’ The other CO said, ‘I came out of retirement to help move you bitches.’

“The bus driver played a children’s recording of the Wheels on the Bus over and over again at full volume, and then played loud rap music with sexually explicit language about sex acts.

“He told them the more they fussed, the louder it was going to be,” [the parent wrote to the TV station]. “All thru the 12 hours they were called bitches. They were told they were the reason for the closing of Dublin. They should have kept their mouths shut.”

BOPbus240429The San Jose Mercury News reported that one source said of the closure and transfer, “I have witnessed people fighting. I have witnessed people crying. I have witnessed people drinking pills because they just want to pass out and not think about it. I have witnessed people vomiting. Another lady over here next to me, she was cutting herself. We have witnessed all of that. And even officers over here are crying because that’s how crazy it is.”

Members of the Senate Judiciary Committee sent a letter to BOP Director Colette S. Peters expressing concern over claims of a chaotic transfer. The letter, signed by Committee Chairman Richard Durbin (D-IL) and four others, alleged that

“concerned stakeholders and advocates have made alarming reports about the ensuing chaos. These reports include: unavailability of medical staff; inadequate-to-no medical attention, including for individuals expressing suicidal ideation; improper medical clearance prior to transport; lack of food and water for those remaining in the facility awaiting transfer; mistreatment, harassment, neglect, and abuse while in transit; and confiscation of personal property. This reporting is appalling and even more concerning in light of the well-documented abuses that have taken place previously at FCI Dublin…”

The letter demanded that the BOP director provide the Committee with information on how the agency has prepared to close FCI Dublin, including its written plans on the “safe and humane release from custody.”

On that same day that the BOP announced Dublin would close, U.S. District Judge Yvonne Gonzalez Rogers, the Oakland, California, judge overseeing the class action suit against Dublin officials, ordered a halt in the transfers so that the special master she had appointed to oversee Dublin could review the process. A review of each prisoner’s status would “ensure inmates are transferred to the correct location,” the judge wrote in her April 15 order. “This includes whether an inmate should be released to a BOP facility, home confinement, or halfway house, or granted a compassionate release.”

bird240429The BOP pushed back, filing a motion for relief from the Judge’s order, questioning the authority of the special master and complaining that the judge’s order amounts to “a de facto requirement” that the BOP keep the prison open. “The Court not only lacks jurisdiction to impose such a requirement, but it is also antithetical to the overall objective of safeguarding inmate safety and welfare,” the motion complains. “Extensive resources and employee hours have already been invested in the move.”

As of yesterday, the motion has not been ruled on. Given that the BOP has already transferred up to 96% of the Dublin inmates–many in horrific conditions–the BOP appears to have presented Judge Gonzalez Rogers with a fait accompli that the Court is unlikely to be able to undo,

goodjobhomer240429In a case of the BOP really not getting it, KTVU reported that in an interoffice memo sent last week, Director Peters “commended her staff for their ‘tireless efforts in facilitating the successful transition’ of women from FCI Dublin… Peters said that the transfer involved ‘careful planning and coordination to ensure the safe transfer of women to other facilities, with special attention given to their unique programming, medical, and mental health requirements’.”

It is perhaps unsurprising that the Federal Prison Oversight Act (H.R. 3019), introduced a year ago, was approved earlier this month by the House Committee on Oversight and Accountability.

Under the bill, which still must be approved by the full House and Senate before becoming law, the Dept of Justice’s Inspector General would conduct periodic prison inspections of BOP facilities. The bill would require the attorney general to ensure the inspectors have “access to any covered facility, including the incarcerated people, detainees, staff, bargaining unit representative organization, and any other information” needed. The assessments “may include” incarceration conditions; staff adequacy and working conditions; availability of FSA programs; SHU practices; prison medical and mental health services; and violence, sexual abuse and excessive-force allegations.” The bill would establish an ombudsman to whom prisoners and loved ones could complain.

Associated Press, Senators demand accounting of rapid closure plan for California prison where women were abused (April 24, 2024)

KTVU, FCI Dublin prison closure: Women describe horrific journey across US (April 22, 2024)

KTVU-TV, U.S. Senators call FCI Dublin transfer of women ‘appalling’ (April 25, 2024)

Senators Richard Durbin, Cory Booker et al., Letter to Colette S Peters (April 24, 2024)

San Jose Mercury News, Chaotic Dublin prison closure leads to fighting, crying, cutting, inmates say (April 24, 2024)

Associated Press, Feds push back against judge and say troubled California prison should be shut down without delay (April 18, 2024)

KTVU, BOP director commends FCI Dublin staff, despite accounts of abusive behavior (April 24, 2024)

HR 3019, Federal Prison Oversight Act

– Thomas L. Root

4th Says District Court Must Consider All Grounds for Sentence Reduction – Update for April 26, 2024

Leave a comment

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

4TH ISSUES EXPANSIVE COMPASSIONATE RELEASE DECISION

compassion240426Antonio Davis was in the 8th year of a 210-month sentence drug conspiracy sentence when COVID hit. He filed for an 18 USC § 3582(c)(1)(A) sentence reduction (compassionate release) for medical reasons and because he should no longer be a career offender inasmuch as one of his predicate offenses was no longer considered a crime of violence.

The district court denied Antonio’s motion because his medical condition wasn’t that bad and he had gotten vaccinated. The district court rejected Antonio’s career offender argument, finding that the issue should be raised in a 28 USC § 2255 motion. And even if Antonio had shown extraordinary and compelling reasons for relief, the court held that his release would not be justified under the 18 USC § 3553(a) sentencing factors because he had only done half of his sentence and 210 months was needed to address the seriousness of his crimes and the risk of recidivism.

Last week, the 4th Circuit reversed, holding that the district court wrongly failed to consider whether Antonio’s career-offender status claim was an extraordinary and compelling reason for release. “Years after Davis was sentenced,” the 4th said, “this Court held that a 21 USC § 846 [drug] conspiracy conviction… is not categorically a “controlled substance offense” for purposes of the career offender guidelines… If Davis were sentenced after that decision, he would no longer be designated a career offender…”

compassion160124In addition, the Circuit said, Antonio presented a second intervening change in law that would further reduce his sentence. Guidelines Amendment 782, added in 2014, retroactively lowered the base offense level for Antonio’s § 846 conviction by two points, but because he was a career offender, he was not eligible for the reduction. “Today,” the 4th said, “Davis would not be sentenced as a career offender [and he would be] eligible for the retroactive two-point reduction…”

If Antonio “were sentenced today,” the Circuit said, “his guidelines range would be 92 to 115 months—about half of his 210-month sentence.” Citing the Supreme Court’s 2022 Concepcion v. United States decision, the 4th said, “Concepcion’s broad reasoning permits federal judges to think expansively about what constitute ‘extraordinary and compelling reasons’ for release, absent specific congressional limitations. And the Sentencing Commission’s latest guidance goes a long way to resolve any remaining questions of congressional intent not answered by the Supreme Court’s decision.”

The 4th concluded that “the district court abused its discretion by declining to address Davis’s change-in-law and rehabilitation arguments in its “extraordinary and compelling reasons” analysis. We also find that, given the mitigation evidence Davis supplied, the substantial changes in law between the original sentencing and today, and the potentially gross sentencing disparity created by those changes, the district court’s explanation of the § 3553(a) factors is insufficient.”

United States v. Davis, Case No. 21-7325, 2024 U.S. App. LEXIS 9399 (4th Cir, Apr 18, 2024)

Biden Brings Forth A Clemency Mouse – Update for April 25, 2024

Leave a comment

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

THE INCREDIBLE SHRINKING COMMUTATION

As has been his recent habit, President Joe Biden capped off Second Chance Month yesterday by granting clemency to a whopping 16 people. Of these, 11 were pardons of people who have been out of prison for an average of about 20 years. Only five were commutations of people currently serving sentences, and of the five, a total of zero will walk out of prison today.

mouse170822

Biden said in a statement that many of the people getting clemency had received “disproportionately longer” sentences than they would have under current law. The White House clemency list made a point of that, too, although the relevance of that to a pardon of someone who’s been out for 20 years is dubious.

The Associated Press said Biden “is grappling with how to boost support from communities of color that heavily supported him over Republican Donald Trump in the 2020 election.”

Biden trumpeted that “[l]ike my other clemency actions, these pardons and commutations reflect my overarching commitment to addressing racial disparities and improving public safety.”

Overaching commitment? Biden, who promised during his 2020 campaign to reform the federal clemency system, has done slightly better than President Trump, a pretty low bar. At this point in his presidency, Trump had pardoned 28 to Biden’s 24, but only commuted sentences on 11 to Biden’s 129. At this point in his first term, President Obama had pardoned 39 to Biden’s 24, but only commuted the sentence of a single inmate.

Bidenclemencystats240425

Of course, by the time he was done, Obama had granted commutations to 1,712 prisoners.

Biden apparently didn’t find as many commutation petitions to love as he did during last year’s Second Chance Month, when he granted commutations to 31 people. This year, he said the five who had their sentences commuted “have shown that they are deserving of forgiveness and the chance at building a brighter future for themselves beyond prison walls.”

He didn’t think the same of the 2,501 pardon and 5,402 commutation petitions he has quietly denied in the last six months.

What’s more, Biden’s commutations have fallen from 79 in Fiscal Year 2022 (October 2021-September 2022) to 34 in FY 2023 and only 16 in the first half of FY 2024. He is not likely to grant any clemency in the remainder of this Fiscal Year.

freedrinks240425By the numbers, over the last six months, a prisoner’s commutation petition had a 44.77% chance of being denied, a 55.19% of not being acted on, but only a 0.04% chance of being granted.

At least in Vegas, when the house gives you odds like that, it usually comps you drinks.

Associated Press, Biden pardons 11 people and shortens the sentences of 5 others convicted of non-violent drug crimes (April 24, 2024)

The White House, Clemency List (April 24, 2024)

The White House, Statement from President Joe Biden on Clemency Actions (April 24, 2024)

– Thomas L. Root

Last One Out of FCI Dublin, Lock the Sallyport – Update for April 23, 2024

Leave a comment

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

BOP GIVES UP ON FCI DUBLIN

shutitdown240424Bureau of Prisons Director Colette Peters imposed the death penalty on the notorious FCI Dublin (California) prison last week, announcing that despite the agency’s “unprecedented steps and provid[ing] a tremendous amount of resources to address culture, recruitment and retention, aging infrastructure and—most critical—employee misconduct… we have determined that FCI Dublin is not meeting expected standards and that the best course of action is to close the facility.”

The Associated Press said that closing the woman’s low-security facility called “The Rape Club” by some BOP staff “represents an extraordinary acknowledgment by the Bureau of Prisons that its much-promised efforts to improve the culture and environment there have not worked.”

finemess190129Only two weeks ago, US District Judge Yvonne Gonzalez Rogers—who has described Dublin as “a dysfunctional mess”—appointed a special master to oversee the prison, largely in response to staff claims of retaliation against female inmates for reporting alleged misconduct.

In 2019, the House Subcommittee on National Security found that widespread misconduct in the federal prison system had been tolerated and routinely covered up or ignored.

Eight Dublin employees, including the former warden, have been charged with sexually abusing inmates with five having pleaded guilty.

The BOP has not provided a timeline or details about the shutdown, but rather has simply framed its planning for the move as “ongoing.” Peters was quoted in the San Jose Mercury as saying, “The closure of the institution may be temporary but certainly will result in a mission change.”

No employees will lose their jobs as a result of the planned closure, the BOP said, but they may have to move.  

That certainly ought to cull the bad apples from the barrel.

Susan Beatty, a lawyer representing a number of Dublin inmates, said the timing of the closure announcement shows the BOP seeks “to evade… outside accountability and transparency.” She said the plaintiffs’ attorneys were “inundated” with calls from Dublin inmates on Monday, many of whom said they were only told of the closure that morning, given trash bags, and told to pack out.

dublinprotest240424

At a rally last Friday outside the prison, a group called Dublin Prison Solidarity Coalition demanded that abused inmates be released. According to KPIX-TV, the advocates said that “chaos unfolded” at the facility since the announcement, “traumatizing incarcerated people who have already been subjected to immense harm by the BOP, including rampant staff sexual abuse, retaliation, and medical neglect.”

A Dublin inmate reported to me:

We woke up this morning to an announcement by the Warden that effective immediately, Dublin FCI–including the camp–will be closed. There are buses for transport and hundreds of officers at the FCI taking inmates away. We were informed that some of the women at the camp will leave today. We are waiting for staff to come around and let those individuals know who will leave today. This comes after the special master came last week and introduced herself and her team to take over. The consensus is that this is the big F.U. to [Judge Gonzalez] by the BOP. “Instead of allowing someone to come in and run it, we will shut down…” The inmates at the FCI were the ones who prepared our food since the camp’s kitchen is closed due to mold and asbestos. Now that it is shut down, we don’t know how we will even be fed.

Associated Press, Bureau of Prisons to close California women’s prison where inmates have been subjected to sex abuse (April 15, 2024)

Courthouse News Service, Feds shuttering scandal-ridden Bay Area women’s prison (April 15, 2024)

San Jose Mercury News, Scandal-plagued FCI Dublin women’s prison to close after years of concerns over sexual abuse, retaliation (April 15, 2024)

KPIX, Rally urges FCI Dublin inmates released as prison at center of sex abuse scandal closes (April 19, 2024)

– Thomas L. Root

Sentencing Commission Announces Slate of Fall Amendments – Update for April 22, 2024

Leave a comment

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 TAKES A WHACK AT ACQUITTED CONDUCT

The US Sentencing Commission last week adopted a slate of proposed amendments to the Guidelines, finally addressing the acquitted conduct issue that has bedeviled the Commission and Supreme Court for the past two years.

can230407SCOTUS sidestepped the question last year, sitting on 13 certiorari petitions raising the question of whether sentencing for acquitted conduct – that is, conduct for which a defendant has been found not guilty by a jury – is constitutional. At the prodding of the Dept of Justice – which told the Supremes that they should let the Sentencing Commission handle it only to then tell the Sentencing Commission it lacked the power to do so – SCOTUS finally denied the cert petitions last July, with several justices saying they would wait for the Sentencing Commission to address the issue.

The acquitted conduct Guidelines amendment will redefine “relevant conduct” under USSG § 1B1.3 to exclude conduct for which a defendant was acquitted in federal court. Because judges must rely on “relevant conduct” to set the Guidelines sentencing range, the change is significant.

For example, if a defendant is convicted of distributing cocaine but acquitted of selling heroin, the amount of heroin that the government said he had sold currently be factored into his Guidelines range as long as the judge found it more likely than not that he had actually sold it. The proposed amendment would prohibit counting the heroin regardless of whether the judge thought the defendant had done it or not.

“Not guilty means not guilty,” Sentencing Commission Chairman Judge Carlton W. Reeves, who sits on the Southern District of Mississippi bench, said. “By enshrining this basic fact within the federal sentencing guidelines, the Commission is taking an important step to protect the credibility of our courts and criminal justice system.”

reeves230706Commissioners were divided on whether to consider enforcing the acquitted conduct sentencing amendment retroactively. A majority voted to have the USSC staff prepare a retroactivity impact analysis, which is the initial step toward making an amendment retroactive.

Sen. Richard Durbin (D-IL), chairman of the Judiciary Committee, said in a press release, applauded the Commission’s vote, noting that it came after he and Sen Charles Grassley (R-IA) introduced the Prohibiting Punishment of Acquitted Conduct Act of 2023. The legislation would have prohibited judges from using conduct acquitted by a jury. The measure has not gained consideration the full Senate.

The Commission is allowed to grant retroactivity – which lets people already sentenced according to Guidelines that are now being amended go back to court to secure the benefit of the amendment in the form of a reduced sentence – on new defendant-friendly amendments. Ratroactivity on last fall’s criminal history amendments was vigorously opposed by some commissioners and the DOJ, which has an ex officio representative on the Commission. This time around, the Commission is considering whether to make multiple defendant-friendly changes retroactive:

• the acquitted conduct amendment;

• a change to juvenile sentences that eliminates adding 2 points for prior juvenile incarcerations of more than 60 days;

• a change to §2K2.1(b)(4)(B)(i) to provide that the 4-level enhancement gun serial number obliteration applies only if the serial number has been modified such the original number is “is rendered illegible or unrecognizable to the unaided eye;” and

• a change to Commentary in §2K2.4 to permit grouping of 922(g) gun count with drug trafficking count where the defendant has a separate 18 USC 924(c) conviction based on drug trafficking.

During the retroactivity vote, Commissioner Claire Murray – a former Trump administration DOJ official – made the obvious point that judges may also still rely on acquitted conduct at sentencing when considering the § 3553(a) sentencing factors, including the nature and circumstances of the offense and the history and characteristics of the defendant, which courts must consider at sentencing, regardless of the Guidelines advisory sentencing range.

The bad news in the amendments was pretty much expected. For economic crimes, the recommended sentence under the guidelines increases dramatically as the amount of loss resulting from the offense increases.

shakeitoff240423As it is now written, the loss is defined in the Guidelines commentary as the higher of actual loss or intended loss. If you try to steal the Hope Diamond from the Smithsonian (value $250 million) but only get a rhinestone imitation (value $250) because the real one had been rented out to Taylor Swift for the weekend, the Smithsonian’s actual loss would be just a few bucks, but the intended loss would be a quarter billion.

In 2022, the 3rd Circuit held in United States v. Banks that the Commentary expanded the definition of loss beyond the ordinary meaning of “actual loss,” and thus, “intended loss” could not be used to set a defendant’s Guidelines. The new loss amendment moves the commentary section into the actual guideline, making sure that intended loss is included in setting the Guideline sentencing range and allowing the use of gain from the offense as a substitute for loss.

Whether the changes will become retroactive depends in part on USSC data on how many prisoners would be eligible for a reduction. If the number is too high, the Commission becomes concerned that the courts will be overwhelmed with reduction motions.

Finally, unhappy that the Commission last year adopted a new compassionate release guideline and made the criminal history guidelines retroactive on a 4-3 vote, Sen John Kennedy (R-LA) last week introduced the Consensus in Sentencing Act to require that changes to the Guidelines get at least five votes out of the seven Commissioners.

Ohio State University law professor Doug Berman, writing in his Sentencing Law and Policy blog, said it “cannot be pure coincidence” that Kennedy introduced the bill the day before last week’s USSC meeting. The bill stands little chance of passing before Congress expires at the end of the year.

Reuters, US panel prohibits judges from sentencing for ‘acquitted conduct’ (April 17, 2024)

Law360, Sentencing Commission Limits Acquitted Conduct Sentencing (April 17, 2024) 

Press release, Durbin Applauds Sentencing Commission’s Unanimous Vote To Prohibit Acquitted Conduct From Being Used In Sentencing Guidelines (April 18, 2024)

Sentencing Law and Policy, Senator Kennedy introduces “Consensus in Sentencing Act” to increase USSC votes needed for guideline amendments (April 16, 2024)

– Thomas L. Root

Capitol Follies – Update for April 18, 2024

Leave a comment

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

LAST WEEK ON CAPITOL HILL

return161227Although S.J.Res. 47, sponsored by Sen Marsha Blackburn (R-TN) and 28 other Republican senators, has as much chance of passing as an Iranian drone has of surviving over Israel, the measure to force CARES Act home confinement people back to prison got pushback last week from the Law Enforcement Action Coalition, a group of police associations.

The group wrote to Senate Majority Leader Charles Schumer (D-NY) “to strongly oppose Senate Joint Resolution 47… that would reimprison approximately 3,000 nonviolent, low-risk individuals who are currently serving their sentences of home confinement pursuant to the Coronavirus Aid, Relief, and Economic Security (“CARES”) Act. As current and former members of law enforcement, our priority is public safety. Reincarcerating these individuals is not only counterproductive for public safety but also jeopardizes their prospects for successful reentry into their communities.”

As Majority Leader, Schumer controls what legislation will be brought to a vote. His refusal to bring S.J.Res. 47 to a vote is enough to kill the bill.

Meanwhile, the bipartisan bill to strengthen Federal prison oversight passed the House Committee on Oversight and Reform last week on a bipartisan vote, sending it to the full House for consideration. The bipartisan Federal Prison Oversight Act (S.1401 and HR 3019) would establish new, independent oversight of the Bureau of Prisons, authorize a BOP ombudsman available to prisoners and their families, and require the BOP to audit and rank the condition and safety of its facilities annually.

Sen Jon Ossoff (D-GA) wrote the bill last year after leading multiple bipartisan investigations into corruption, abuse, and misconduct at the BOP. The House version is sponsored by Reps Lucy McBath (D-GA) and Kelly Armstrong (R-ND).

BOPkickme210707The conservative criminal justice group Right on Crime wrote to Congress in advance of the Committee vote, saying, “The BOP employs over 34,000 people and is responsible for over 150,000 inmates. The budget of this agency is over $8 billion. Yet, despite this hefty price tag to the taxpayer and its massive personnel responsibility, BOP is a deeply flawed agency… [F]ederal prisons are understaffed, underfunded, overcrowded, unsafe, in disrepair, and subject to criminal activity (including, but certainly not limited to, smuggling contraband and sexual assault)… Despite this, the BOP has largely functioned without much accountability. As the maxim goes, ‘sunlight is the best disinfectant.’ As such, increased visibility into the BOP will improve this broken system.”

Finally, Senate Democrats are seeking additional co-sponsors ahead of re-introducing legislation that, among other things, would eliminate federal criminal penalties for marijuana possession and establish a regulatory framework for cannabis products.

Last Monday, Schumer, Sen Ron Wyden (D-OR) and Sen Cory Booker (D-NJ) wrote to colleagues seeking co-sponsors for the Cannabis Administration and Opportunity Act, which is expected to be re-introduced by the end of this month.

“The question today is not whether cannabis should be legal—many states have already moved ahead,” the letter states. “The question now is whether cannabis should be subject to the same high regulatory standards, based on preserving public health and safety, that apply to alcohol and tobacco.”

Finally, some House Democrats have filed a bill to rename FCI Miami the “Donald J. Trump Federal Correctional Institution.”

trumpprison240422The move comes just days after House Republicans introduced a bill to rename Washington Dulles International Airport after the former president. The renaming efforts come in an election year when many Republicans seek to honor the presumptive nominee, while Democrats work to undercut him.

“Everyone knows President Trump loves to write his name in gold letters on all his buildings,” Jared Moskowitz (D-FL), one of the sponsors said. “But he’s never had his name on a federal building before, and as a public servant, I just want to help the former president. Help us make that dream a reality.”

Law Enforcement Action Coalition, Letter to Senate Majority Leader Charles Schumer (April 8, 2024)

S.1401, Federal Prison Oversight Act

HR 3019, Federal Prison Oversight Act

Ossoff Press Release, Sen. Ossoff’s Bipartisan Bill to Overhaul Federal Prison Oversight Passes Key U.S. House Committee (April 11, 2024)

Right on Crime, Letter to Rep James Comer (April 8, 2024)

Charles Schumer, Letter to Colleagues (April 8, 2024)

ABC News, House Democrats introduce bill to rename Miami federal prison after Trump (April 5, 2024)

– Thomas L. Root

‘Everything Depends on Your Reasons’ For Compassionate Release, 10th Circuit Says – Update for April 17, 2024

Leave a comment

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

10TH CIRCUIT SAYS ‘EXTRAORDINARY AND COMPELLING REASONS’ APPLY TO SENTENCING FACTORS, TOO

compassion160124As a procedure, compassionate release is still fairly new. Courts have only had to develop the standards for judging what constitutes an extraordinary and compelling reason for a sentence reduction and what 18 USC § 3582(c)(1)(A)’s squishy directive that a court “consider[]the factors set forth in section 3553(a) to the extent that they are applicable” means in the last five years.

A compassionate release motion must begin with the concession that the sentence was “sufficient but not greater than necessary” and thus complied with 18 USC § 3553(a) when it was imposed. But as 4th Circuit Chief Judge Roger Gregory persuasively argued in United States v. Kibble three years ago, if “a district court’s original 3553(a) analysis could always prove that a sentence reduction would intolerably undermine the 3553(a) factors, then 18 USC 3582(c)(1) would, in effect, be a nullity.”

In other words, a prisoner’s reasons for a sentence reduction are relevant to the 3553(a) factor analysis as well as to the “extraordinary and compelling” standard.

The 10th Circuit reminded us of that last week. Jason Bradley filed for compassionate release, arguing that his kids needed a caregiver. The district court turned him down on § 3553(a) factors because Jason’s lengthy record didn’t convince the judge that Eddie would not commit new crimes.

On appeal, Jason complained the district court “analyz[ed] the § 3553(a) factors as frozen at the time of the 2015 sentencing” and “did not consider the significant mitigation” since the original sentencing, such as age, more than eight years of sobriety and exemplary conduct in prison. He acknowledged that the court did not need to make a finding on extraordinary and compelling reasons in order to deny a compassionate release, but by “failing to consider the facts supporting extraordinary and compelling reasons for release’ within its 3553(a) analysis… the district court committed legal error.

compassion240416

The 10th agreed with Jason: a district court may dispose of a motion for compassionate release at any of the three statutory steps – lack of extraordinary and compelling reason, noncompliance with applicable Sentencing Commission policy, or inconsistency with § 3553(a) sentencing factors. However, the Circuit held that “the facts allegedly establishing extraordinary and compelling reasons for release are relevant to the § 3553(a) analysis” and thus, a district court cannot “deny compassionate-release relief on the ground that release is not appropriate under 3553(a) if the court has not considered the… extraordinary and compelling reasons for release.”

Jason still lost because he had not properly preserved his argument. But the 10th’s analysis is important guidance for anyone writing a compassionate release motion. Be sure to explain why the extraordinary and compelling reasons for release impact the § 3553(a) analysis, or, basically, “Why does a sentence that made sense then not make sense now?”

United States v. Bradley, Case No 23-1223, 2024 U.S.App. LEXIS 8367 (10th Cir, April 8, 2024)

– Thomas L. Root