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‘I Did It Before and I’ll Do It Again’ – Update for February 6,2025

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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 SAY ‘TO-MA-TO,’ YOU SAY ‘TO-MAH-TO’… IT DOESN’T MATTER

The dark side of United States v. Booker – the 20-year-old Supreme Court case that held the Sentencing Guidelines must be advisory and not mandatory – is the untethering of federal district court judges to sentence as they see fit.

At first blush, that sounds like a feature and not a bug. However, a pair of cases handed down this week shows that it can lead to disparate and sometimes unreasonable results.

walmart250206

Alexander Olson, a man easily led by others, was one of eight political wackadoodles who thought that setting fire to four Walmart stores would force the company to pay employees more, feed the homeless, limit executive pay and adopt an additional slate of progressive wish-list policies.

(In fairness, my wife was tempted to torch our local Walmart yesterday over $6.00-a-dozen eggs, but no jury of Walmart shoppers would ever convict her for that).

Alex and his fellow travelers were charged with conspiracy to commit arson in violation of 18 USC § 844(n). He pled guilty, with sentencing guidelines working out to 41-51 months, and a statutory sentencing mandatory minimum of 60 months (which by law, became the minimum and maximum of Alex’s Guidelines range). But at sentencing, the judge decided an upward variance to 180 months (15 years) was appropriate, despite the fact Alex was not the ringleader and evidence showed he suffered from prior psychological abuse that made him easily led by males from whom he craved validation.

The 180-month sentence was 60 months shy of that statute’s maximum 240 months, and the judge paid lip service to the 18 USC § 3553(a) sentencing factors even while discounting the mitigating evidence that didn’t fit with the court’s worldview.

judge160222The court called the sentence of three times Alex’s Guideline range an upward variance, but later in its written explanation of reasons, referred to it as a departure.

A variance and a departure both result in a sentence outside the advisory guidelines range but reach that result in different ways. A variance occurs when a court determines that a guidelines sentence will not adequately further the purposes reflected in 18 USC § 3553(a). A departure refers to non-Guidelines sentences imposed under the framework set out in the Guidelines departure provisions set out in USSG Chapter 5K. Advance notice to the parties is generally required for a departure but not for a variance.

Significantly, the court said, “I find the advisory guidelines range is not appropriate to the facts and circumstances of this case, and the sentence here, whether an upward departure or a variance, I find appropriate.”

The 11th Circuit this week said it may have been a variance, may have been a departure, but the distinction did not matter because the district court would have imposed the same sentence regardless of which it was and the sentence – which was well below the statutory maximum – was substantively reasonable. “Under those circumstances, any error in the court’s application of a guidelines issue,” the 11th said, “including a departure issue, is harmless.”

hobbsact200218In the 7th Circuit, a different take on the same issue: Chris Easterling tried to rob a Walgreens store by pulling a gun and telling the cashier, “Let’s get this going, babe.” She was uninterested in getting whatever he had in mind going, fleeing instead. Chris couldn’t open the register himself, so he left to enjoy a few more minutes of freedom before being charged with attempted 18 USC § 1951 Hobbs Act robbery and an 18 USC § 924(c) count for using the gun (among other offenses).

Chris pled guilty, with a Guidelines advisory range of 57 to 71 months in prison for the Hobbs Act violation and a consecutive mandatory 84 months’ imprisonment, to run consecutively to the Hobbs Act sentence (for a total range of 141-155 months).

At sentencing, the court sentenced Chris to 239 months, 155 months for the Hobbs Act robbery and a consecutive 84 months for the § 924(c), a sentence 54% higher than the high end of his advisory sentencing range just one month shy of the 240-month statutory maximum sentence for Hobbs Act robbery. The court said Chris’s conduct and his “persistent and repeated history of violence” called for a “significant sentence” to protect the public.

The Supreme Court then decided in United States v. Taylor that attempted Hobbs Act robbery – which is what Chris was convicted of – could not support a § 924(c) count because it was not categorically a crime of violence. But when Chris went back for resentencing without the consecutive 84-month sentence (new sentencing range of 84-105 months), the district court again slapped the 239-month sentence on him, saying that “nothing had changed” in Chris’s history or the nature of the offense.

Chris appealed that sentence, too. While the appeal was pending, the Sentencing Commission changed its criminal history Guidelines in a way that would reduce Chris’s category by one level and drop his new sentencing range to 70-87 months. The government argued that the case should not be remanded for resentencing again, because the district court had checked a box on the Statement of Reasons form that every court must submit after a criminal sentence that says: “In the event the guideline determination(s) made in this case are found to be incorrect, the court would impose a sentence identical to that imposed in this case.”

Not good enough, the 7th said this week. “Putting aside the fact that the district court could not grapple with a Guidelines amendment that did not exist yet, this checked box is insufficient to prevent remand. We have previously held that a bare, boilerplate assertion – a conclusory comment tossed in for good measure – will not ordinarily suffice to hold a Guidelines error harmless.”

hammertime200818The Circuit ruled, “We require a district court to assure us that it would impose the same sentence again by specifically addressing the contested issue… Here, the court was unable to do so. We will not presume that a district court is so intransient that nothing the Commission does and no possible change to the Guidelines could sway its prior decision.”

United States v. Olson, Case No. 23-11939, 2025 U.S. App. LEXIS 2351 (11th Cir. Feb. 3, 2025)

United States v. Easterling, Case No. 23-1143, 2025 U.S. App. LEXIS 2376 (7th Cir. Feb. 3, 2025)

– Thomas L. Root

Biden Drug Clemencies Were Sloppy, DOJ and Courts Say – Update for February 5, 2025

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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.

BIDEN DRUG COMMUTATIONS ANGER DOJ PARDON ATTORNEY

On his final Friday in office, President Joe Biden commuted the sentences of nearly 2,500 inmates serving lengthy prison terms, saying he wanted to return people serving disproportionately long sentences for nonviolent drug offenses to their communities.

Last Sunday, the Wall Street Journal reported that only 258 of those receiving commutations, about 10% of the total, had been recommended by Dept of Justice Pardon Attorney Elizabeth Oyer.

oyer250205Biden’s list included “individuals with violent backgrounds who otherwise wouldn’t meet the department’s standards for recommendation for receipt of clemency,” according to a January 18th internal DOJ email written by Oyer to dismayed and angry DOJ colleagues. “While I am a strong believer in the possibility of second chances through clemency, the process by which yesterday’s action was carried out was not what we had hoped and advocated for,” Oyer wrote in the email – labeled “confidential and law enforcement sensitive” – that was leaked to the Wall Street Journal. She added: “I understand that some of the clemency grants are very upsetting.”

The Journal reported that the 2,490 names were compiled by a team of about a half-dozen lawyers from the White House Counsel’s Office, offenders selected primarily because they had been sentenced for trafficking in crack cocaine rather than powder cocaine. Federal law considers one gram of crack to equal 18 grams of powder – despite the fact that the stoichiometry for conversion of powder to crack is about 1.12:1 – and that 18:1 ratio was a reduction from a 100:1 powder-to-crack ratio that existed prior to the Fair Sentencing Act being passed in 2010.

crack-coke200804The effect of the legislatively imposed ratio has been that prior to 2010, crack sentences were about two-thirds longer than powder sentences (when adjusted for other factors). The Fair Sentencing Act, while ameliorating the disparity, neither reached the 1:1 ratio some critics sought nor retroactively corrected sentences already imposed when it was passed. Not until the First Step Act was passed in 2018 was a mechanism established that permitted people serving time for crack offenses to seek retroactive application. While the Sentencing Commission has not reported how many retroactive application requests were granted, courts granted a 2014 Guidelines 2-level retroactive amendment to only about 55% of the people applying for it.

Biden wanted to make a splash on his way out of office, perhaps to help erase his history as the architect of the Violent Crime Control and Law Enforcement Act of 1994. He directed his White House team to rule out individuals at high risk for recidivism and people who had used a gun in connection with their drug crimes “or engaged in other egregious conduct including the selling of drugs near a school,” according to the Journal.

Oyer’s email said that the DOJ’s input was minimal. “This action was not carried out in consultation with the Office of the Pardon Attorney and there was little coordination with the Department,” she wrote. She said the White House included commutation for people who DOJ specifically rejected while omitting hundreds of people who DOJ recommended.

A perfect example: In a highly unusual decision from US District Court Judge Gary Brown last week, the Eastern District of New York jurist ordered one of the defendants whose sentence was commuted in the January 17th order to be brought before the court when he is released next month to have his conditions of supervised release thoroughly repeated to him.

badboy200219Carl Andrews, according to the courts that have heard his cases, was a bad dude. When brought up on the charges for which he is now doing time, Carl already had 17 prior convictions for assault, larceny, resisting arrest, criminal contempt and drug possession, In his current case, he was first charged with “sex trafficking by force, fraud or coercion” and only later had crack distribution counts added.

The Court noted that if Carl had been “convicted of the sex trafficking charges, he would have faced a fifteen-year mandatory minimum. The Government, however, was willing to accept the sentence imposed—approximately nine and a half years—in satisfaction of all charges, even though the sex trafficking charges appeared readily provable. Thus, Mr. Andrews received a sentence lower than that required by current law.”

violent160620Judge Brown’s court had found previously that Carl “used his access to crack cocaine to exploit one victim’s addiction to further profiteer from prostitution activities,” a determination that the Second Circuit upheld on appeal. Judge Brown wrote, “Additionally, the victim credibly testified that, on multiple occasions, the defendant threatened violence to ensure her continued participation in the defendant’s exploitation. Moreover, he used other coercive techniques, including, as [a] judge in the Southern District noted, ‘exploit[ing] her addiction and poverty and emotional fragility to induce her to sell her body for profit’. Thus, the charges and evidence against this defendant involved far more than non-violent drug violations.”

Judge Brown clearly found Biden’s grant of clemency to Carl inexplicable:

While history may judge the wisdom of these actions, this Court may not. However, this case, and others like it, spotlight the problems that invariably arise when a president’s unreviewable pardon authority is deployed impetuously, resulting in careless execution of the president’s directives.

In this matter—involving sex trafficking, narcotics distribution and perjury—the grant of executive clemency seems inconsistent with its purported rational[e]. This Court must abide by this action, while exercising its responsibility regarding the vestige of the sentence imposed, i.e., oversight of the defendant during a four-year period of supervised release.

*     *     *

Given this record, it is hard to classify the defendant as a “deserving individual…” Certainly, the traditionally rigorous review process would have revealed these facts, and even an abbreviated procedure would have counseled against the exercise of the former President’s pardon authority in this case—and others like it.”

angryjudge190822Judge Brown believes that “in light of the commutation of his sentence, the defendant should be reacquainted with the conditions of supervised release.” One would like to be a fly on the wall in that courtroom when Carl is hauled in front of Judge Brown next month for an ear full of what the Judge thinks of his release after fewer than five years in prison on a 9-½ year sentence.

Wall Street Journal: Biden Commutations Angered His Own Justice Department (February 2, 2025)

United States v. Andrews, Case No. 20-CR-546, 2025 U.S. Dist. LEXIS 15067 (E.D.N.Y. Jan. 28, 2025)

– Thomas L. Root

Boys Might Still Be Girls – Update for February 3, 2025

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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.

TRANSGENDERISM ISN’T DONE GASPING

corso170112Last Thursday, I wrote the obituary for the Federal Bureau of Prisons transgender policy. As Lee Corso (whose prognostications haven’t been so hot lately, having picked Texas over Ohio State in the CFP semifinal and Notre Dame over the Buckeyes in the championship game) might correctly say, “Not so fast, my friend”).

Only a few hours after my post, a federal district court in Massachusetts unsealed a case filed the prior Sunday and issued a temporary restraining order on behalf of an unnamed transgender male-to-female inmate ordering the BOP not to move the plaintiff to a male prison or deny him access to transitioning drugs and surgery.

The plaintiff claimed the impending transfer to a men’s prison violates the 8th Amendment prohibition against cruel and unusual punishment and deprives him of transitioning healthcare in violation of the Rehabilitation Act of 1973.

At the same time, three transgender male-to-female federal prisoners sued last Thursday in Washington, D.C., to block Trump’s order. Their attorneys said they had all been placed in their facilities’ Special Housing Units (“SHUs”) in preparation for transfer to a male prison but had later been returned to general population, although they have been warned they still face imminent transfer.

angrytrump191003The complaint argues Trump’s order was driven by “hostility towards transgender people.” President Trump hostile toward a particular group of people? Hard to imagine…

In my prior post, I noted that on January 25, 2025, the BOP reported having 1,529 male prisoners claiming to be transgender females and 744 female prisoners claiming to be transgender males. Lucky I checked when I did: that information, however, was purged from the BOP website last Friday, along with any use of the g-word (gender). The BOP web page originally titled “Inmate Gender” was relabeled “Inmate Sex” on Friday.

Meanwhile, the parties in the Fleming v. Pistro litigation asked for and got more time to set out their position on whether the case was mooted by Trump’s order.  At the same time, a transgender male-to-female inmate – one Peter Langen (who now goes by the name “Donna”) – moved to intervene in the Fleming litigation. Langen complained that Rhonda Fleming

has already filed a similar case against transgender prisoners herself and by proxy. The Movant is being unduley burndened [sic] by this Plaintiff once more, it is only fair to allow the Movant a seat at the table when issues that directly impact’ her and other similarly situated Movants.

The Movant as a prisoner in the same prison system that the plaintiff was in (Plaintiff now resides in a Halfway house) and as a person who has been falsely accused of misconduct by this Plaintiff I am in a unique position to give input to this Court as a trier of the facts in this case.

denied190109The Court was not impressed, denying the motion in a terse order holding that the 11th-hour (maybe 12th hour) motion arrived after he had decided the case: The Court ruled that the “case applied only “to Ms. Fleming. Accordingly, Ms. Langan has no right to intervene. Likewise, permissive intervention is also inappropriate, especially given that this Court has already entered judgment.”

Order Following Bench Trial (ECF 176), Fleming v. Pistro, Case No. 4:21-cv-325 (January 17, 2025)

Order Denying Motion to Intervene (ECF 180), Fleming v. Pistro, Case No. 4:21-cv-325 (January 28, 2025)

White House, Defending Women from Gender Ideology and Extremism and Restoring Biological Truth to the Federal Government (January 20, 2025)

Reuters, Transgender inmate sues over Trump’s order curtailing LGBT rights (January 27, 2025)

WUSA-TV, Transgender inmates sue to block Trump order that would force move to men’s prison (January 31, 2025)

Associated Press, Health Data and Entire Web Pages are Wiped From Federal Websites (January 31, 2025)

– Thomas L. Root

Government ‘Dog Whistle’ Called Out by 1st Circuit – Update for January 31, 2025

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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.

UNFORCED ERROR

unforcederror250131Mario Castillo, a 72-year-old grandfather, was convicted of sexually abusing his granddaughter, a federal crime because it happened in post housing at a military installation. His plea agreement with the government let the parties argue for widely divergent sentences: Mario argued that the Guidelines should result in a 78-month sentence. The government said the range was 235-293 months but agreed to ask for a sentence of 180 months.

At his first sentencing, the district court – which itself was not bound by the plea agreement to any limits – imposed a 235-month term. The 1st Circuit then vacated the sentence because of a procedural error in calculating the Guideline range.

At his resentencing, Mario began by acknowledging that the court had the authority to impose a sentence without regard for his 78-month proposal or the Government’s 180-month proposal. He argued, however, that his age, minimal risk of re-offending, and prior difficulties in prison should convince the district court to sentence him leniently.

hammer160509The government was not so constrained. Without any prompting by Mario’s anodyne sentencing arguments or questions from the district judge, repeatedly emphasized that the court had the authority to impose a harsher sentence than the 180-month recommendation that it was bound by the plea agreement to request. The government told the court, for example, that

● “We were bound by [the plea agreement], but we did not bind the court in any kind of agreement, and the court is free to sentence anywhere it wants, and the victims are free to argue for anything that they want as well.”

● “Your Honor stated [at the first sentencing] that the court had considered all of the other sentencing factors… and that neither sentence recommendation… was just… which resulted in… the sentence that you imposed at that time.”

● “This court’s sentence, whatever it is, can aptly be supported by the facts and arguments that the United States made in its sentencing memorandum filed in 2018.”

● “Your Honor is still free and legally unimpeded to sentence to whatever he wants between probation and life. That was true [at the first sentencing], it is true today.”

● “The… Court of Appeals did not… say the original 235-month sentence was an unreasonable sentence… or that it was too harsh a sentence….”

● “We are here on a procedural error that has nothing to do with the running room that Your Honor has to sentence.”

The government also repeatedly suggested that public safety required that Mario never leave prison, even though he would be deported right away to the Dominican Republic. The prosecutor said he was “very fearful for the children” in the Dominican Republic” because – regardless of his age – Mario “will sexually offend against children [because] [h]e is attracted to them, and he is going to act on his attraction whenever the opportunities appear.”

The district court heard the prosecutor’s dog whistle loud and clear, and reimposed the 235-month sentence.

dogwhistle240610Last Tuesday, the 1st Circuit vacated the sentence again, holding that the government breached its plea agreement obligations and violated Mario’s due process rights.

“In our view,” the Circuit said, “the prosecutor’s sentencing presentation constitutes a clear example of paying lip service to the plea agreement while giving a wink and nod to the imposition of a harsher sentence…” The government’s arguments, unprompted by Mario’s sentencing presentation, were an unforced error, “leav[ing] the unmistakable impression that the prosecutor wanted the district court to impose a sentence longer than 180 months…. That was not the government’s promise. This case thus presents an instance of a prosecutor reaffirming a promise to the defendant out of one side of his mouth while simultaneously trying to subvert it out of the other side.”

The government contended that it never actually endorsed a 235-month sentence. “That is true,” the 1st Circuit conceded, “but our caselaw permits a successful breach claim where a prosecutor pays mere ‘lip service’ to a plea-agreement promise… [T]he prosecutor suggested that the district court reimpose the same 235-month sentence without explicitly saying so. Thus, this is a circumstance where the prosecutor… undercut a plea agreement while paying lip service to its covenants.”

The Circuit ordered that Mario get resentenced before a different judge.

United States v. Castillo, Case No. 21-1599, 2025 U.S. App. LEXIS 1887 (1st Cir. Jan. 28, 2025)

– Thomas L. Root

Boys Won’t Be Girls – Update for January 30, 2025

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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.

TRANSGENDERISM’S LAST GASP

lola250130Contrary to what the Kinks might have sung, girls will no longer be boys nor will boys be girls in the Federal Bureau of Prisons.

Despite policies in place that required placement of biological males in federal women’s prisons if the males identified themselves as female, Bureau of Prisons prisoner Rhonda Fleming (who is a biological female) managed to climb the litigation mountain that frustrates almost every inmate who tries to scale it: Earlier this month, she went to trial in Tallahassee, Florida, federal court over a claim that her constitutional right to bodily privacy was violated by the Federal Bureau of Prisons’ transgender policy of sending inmates equipped with male genitalia to women’s prisons.

Rhonda, who is incarcerated at the FCI Tallahassee women’s prison, argued that she and other women were compelled by the placement of biological men in their housing units to expose their unclothed bodies in shower and toilet facilities in front of the opposite sex. The BOP countered that the showers had individual stalls and curtains for privacy, but Rhonda replied that the curtains were so filthy that no one wanted to touch them.

Anyone familiar with the Dept of Justice Inspector General’s inspection of FCI Tallahassee would find Rhonda’s allegation completely believable.

No matter. After a bench trial, Northern District of Florida Chief Judge Mark E. Walker ruled that Rhonda had not proven that she had been coerced or compelled in any such way to expose herself in the shared showers or toilets at BOP facilities in which she has been housed.

The District Court conceded that

the law makes plain that prisoners have constitutional rights, including a right to bodily privacy. But the law also makes plain that the scope of those rights is limited by the realities of prison administration, and that courts must give great deference to the decisions of prison officials relating to the administration of their facilities… [A] prisoner’s constitutional right to bodily privacy is invaded only when she is coerced or compelled to expose intimate parts of her nude body by a government policy or practice, written or unwritten, or by the order, direction, or acquiescence of a government official, express or implied.

transgenderprisonwalls250130Despite what Rhonda claimed, Judge Walker held that “BOP policy and practice is to prohibit such exposure and to provide Plaintiff and other inmates with numerous means to protect their bodily privacy. In every facility Plaintiff described, she and all other inmates are required to shower, use the toilet, and change their clothes in individual stalls separated by walls and covered by curtains, and they are permitted to choose the times they shower.”

So Rhonda lost. But just for a minute, because three days after Judge Walker’s order, incoming President Trump issued an executive order giving Rhonda everything she had asked for. The order, among other things, ordered the Attorney General to “ensure that males are not detained in women’s prisons…”

As a result, Judge Walker issued a supplemental order directing the parties to file responses by tomorrow, “address[ing] whether this Court should vacate the judgment insofar as Plaintiff’s claim for declaratory and prospective relief is rendered moot given that the President has apparently revoked the policy at issue in this case.”

As of last week, the BOP reported having 1,529 male prisoners claiming to be transgender females and 744 female prisoners claiming to be transgender males. As of August 2023, 47% of male prisoners declaring themselves to be female had been convicted of sex offenses, far exceeding the next category (weapons offenses at 12%). Women claiming to be male were by far convicted of drug offenses (57%, with the next category being weapons at 15%).

prisonersart250130In January 2017, the BOP issued a policy permitting “housing by gender identity when appropriate,” considering the “inmate’s health and safety, and whether the placement would present management or security problems,” in line with the Prison Rape Elimination Act (PREA). A year and a half later, the Trump-led DOJ modified the policy to “use biological sex as the initial determination” of placement but still permitted gender identity-based placement “in rare cases” after considering other housing options and the inmate’s “progress towards transition.”

In January 2022, the Biden-era DOJ updated the BOP’s manual yet again to eliminate biological sex altogether as the initial determinant of placement in a men’s or women’s prison. Instead, the “Transgender Executive Council,” was to consider factors including the male inmate’s “security level, criminal and behavioral/ disciplinary history, current gender expression, programming, medical, and mental health needs/information, vulnerability to sexual victimization, and likelihood of perpetrating abuse.” Once placed in a woman’s prison, the prisoner would be monitored to ensure that his housing unit “does not jeopardize” his “wellbeing.”

The principal omission from the transgender calculus has always been a concern for the safety of other women prisoners. Instead, the primary concern has always been “mitigating risk” to the trans-identifying inmate.

A Free Press article argued that the risk to women prisoners was real:

transprisons250130Since the policies went into place, there have been multiple reports of sexual assault by male trans-identifying inmates toward female inmates. One woman who sued Rikers Island jail in New York in 2020, alleged that, after arriving in her cell, a male inmate introduced himself by saying, “I’m not transgender. I’m straight. I like women,” before groping and later raping her. Another female claimed she was raped in the prison shower by her six-feet-two-inches, 200-pound, bearded male attacker. In 2022, a trans-identifying male in a New Jersey women’s prison impregnated two prisoners.

Anecdotal reports I have received from women’s facilities is that the BOP is already moving biological male prisoners to all-male facilities.

Order Following Bench Trial (ECF 176), Fleming v Pistro, Case No 4:21-cv-325 (January 17, 2025)

Order for Expedited Response (ECF 178), Fleming v Pistro, Case No 4:21-cv-325 (January 24, 2025)

Defending Women from Gender Ideology and Extremism and Restoring Biological Truth to the Federal Government (January 20, 2025)

BOP, Transgender Offender Manual (January 13, 2022)

The Free Press, Biden’s Transgender Prison Policy Goes to Trial (January 13, 2025)

– Thomas L. Root

Sentencing Commission Proposes Drug Table, Meth, Supervised Release Changes – Update for January 27, 2025

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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.

‘ICE’ MAY BE MELTING

In December, the United States Sentencing Commission announced proposed Sentencing Guidelines amendments for public comment on the sweeping if rather tedious topics of guideline simplification, criminal history, firearm offenses, circuit conflicts and retroactivity. 

drugdealer250127At the time, Sentencing Commission Chairman, Judge Carlton W. Reeves (Southern District of Mississippi) hinted that the USSC could be announcing some additional proposed amendments this month.

Last Friday, the Commission provided an upbeat end to a tough week for federal criminal justice, proposing defendant-friendly amendments to Guidelines on supervised release, the drug quantity tables, and enhanced offense levels for “ice” and pure methamphetamine.

The draft amendments, released for public comment, also propose cracking down on distribution of drugs laced with fentanyl as well as an increased enhancement for packing a machine gun during a drug crime.

The biggest surprise is a proposed change to adopt one of three options, any of which would reduce the top base offense level for drug quantity in the Guidelines. A Guidelines sentence for a drug offender is driven by the weight of the drugs attributed to him or her.  If Tom the Trafficker, with no prior convictions, was involved in a cocaine conspiracy that sold 1,000 lbs of cocaine (10 lbs. a week) over two years – even if he only sold an 8-ball a day five days a week for two years (about 4 lbs) – his Guidelines base offense level would be 38 with a sentencing range starting at 20 years in prison.

The three options the Sentencing Commission is considering would drop the levels in the drug quantity table to Level 30, 32 or 34 instead of the current 38.  At Level 30, our hypothetical Tom would be looking at an advisory sentencing range of 8 years instead of 20.

The Commission said it “has received comment over the years indicating that [Guideline] 2D1.1 overly relies on drug type and quantity as a measure of offense culpability and results in sentences greater than necessary to accomplish the purposes of sentencing.”

meth240618The second proposed amendment would essentially wipe out the drug quantity table’s 10-to-1 focus on meth purity and eliminate any enhanced penalty for crystal meth, known as “ice.” Commission data show that in the last 22 years, the offenses involving meth mixtures has remained steady while the number of offenses involving “meth (actual)” and “ice” have risen substantially. A recent Commission report found that today’s meth is “highly and uniformly pure, with an average purity of 93.2% and a median purity of 98.0%.”

In other words, if all meth is pure, applying the higher base offense level for pure meth becomes the norm rather than the exception. This is a drug-crime equivalent of the Lake Wobegon effect, humorist Garrison Keilor’s representation that in Lake Wobegon, all the children are above average.

The meth purity change could decrease Guideline base offense levels by up to 4.

A note: Judge Reeves, wearing his district court hat instead of USSC hat, wrote a thoughtful opinion two years ago in which he refused to apply the purity enhancement on the same grounds that the Commission cites now as a rationale for changing the Guidelines.

supervisedleash181107The other significant change is to supervised release, which would dramatically reduce the cases in which it is added to the end of a sentence. Among its many changes – focused on making supervised release more about rehabilitation and less about punishment – the proposed amendment would also adopt inmate-friendly standards for early termination of supervised release, making getting off supervised release after a year much easier to do.

The Sentencing Commission proposal says nothing about whether the drug quantity table reduction or meth changes – if they are adopted – would be retroactive. Retroactivity would be decided in a separate proceeding, and the USSC is in the middle of a painful re-evaluation of when and whether retroactivity should be allowed.

For now, the proposed amendments will be out for public comment until March 3, 2025, with reply comments due by March 18, 2025. The Commission will decide what it will adopt as final amendments by May 1, and those will become effective (absent Congressional veto) on November 1, 2025.

US Sentencing Commission, Proposed Amendments to the Sentencing Guidelines (Preliminary) (January 24, 2025)

– Thomas L. Root

The Wreckage That Is Clemency – Update for January 24, 2025

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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.

THANK A GOLDFISH

When a neighbor’s kid (who is now a successful real estate attorney) was in 7th grade, he entered a science fair project studying exactly how short a goldfish’s attention span might really be. I just recall that his conclusion was that it was pretty short.goldfish200731

For the sake of federal clemency, we should all hope that the American public’s focus is as brief.

President Biden granted clemency a week ago Friday to 2,490 people with drug offenses (including a few CARES Act releasees who were overlooked in the December 12, 2024, commutation of sentence for 1,499 people already on home confinement). That only raised a few of the predictable howls about unleashing violent criminals on the public (the fact than none had committed a violent crime being lost on those few critics).

Biden followed these with pardons on Sunday to members and staff of the House of Representatives January 6th Committee, Dr. Anthony Fauci, General Mark Milley, and Capitol police officers who testified about the January 6th riot. A chorus of voices from Trump supporters who wanted revenge – as well as a few thoughtful complaints that such pre-emptive pardons were a bad idea as a matter of policy – followed.

The January 19 clemencies included several other less controversial pardons. However, among the pardonees were members of Biden’s own family (which Biden cravenly only had the White House announce on Monday, January 20, after 11 a.m., as Biden sat in the Capitol rotunda awaiting President Trump’s inauguration).

Also in the final moments of his administration, Biden also commuted Leonard Peltier’s life sentence for a 1975 killing two FBI special agents on the Pine Ridge Indian Reservation to home confinement. Peltier, 80 years old and in ill health, has always maintained his innocence.

Monday night, Trump said Biden’s pardon of family members, whom he said were under unfair threat of investigation by Trump, “Now with that being said, it sets an unbelievable precedent, it creates poor precedent. But the precedent is unbelievable.”

Trump, however, eclipsed Biden’s “poor precedent” within hours of his own inauguration, issuing a sweeping clemency – consisting of 14 commutations of sentence and about 1,500 unconditional pardons – to people under indictment or convicted of crimes related to the January 6, 2021, insurrection at the United States Capitol.

The J6 clemency grant was “a last-minute, rip-the-bandage-off decision to try to move past the issue quickly, White House advisers familiar with the Trump team’s discussions told Axios, illustrating Trump’s light on his “unpredictable decision-making process” and showcasing his “determination to fulfill a campaign promise to his MAGA base — regardless of political fallout.”

j6240702Despite months of the Trump campaign and transition team suggesting that people who engaged in violence on January 6 would not be getting clemency, Trump “vacillated” over whether to give a blanket pardon or a more detailed “targeted clemency.” However, as “Trump’s team wrestled with the issue, and planned a shock-and-awe batch of executive orders Day 1, ‘Trump just said: “F-k it: Release ’em all,”’ an adviser familiar with the discussions said,” according to Axios.

The White House described the blanket pardon as being necessary to “end a grave national injustice that has been perpetrated upon the American people over the last four years and begins a process of national reconciliation.” On Tuesday night, he said, “These people have served years of jail, and their lives have been ruined. They’ve served years in jail, and, if you look at the American public, the American public is tired of it.”

Not really. A Reuters/Ipsos poll the day after the J6 pardons were announced showed 60% of respondents opposed Trump’s action. An Axios focus group of independent voters opposed the action by an 83% majority.

Trump followed those pardons with one for Ross Ulbricht, the creator of the Silk Road marketplace, described by MSNBC as “one of the biggest illegal drug markets in American history.” The irony is that Trump has spent the past decade campaigning against the scourge of fentanyl and opioid addiction. Of course, the primary difference between the other drug traffickers in federal prison and Ulbricht is that those other guys did not take Bitcoin in payment.

On Wednesday, Trump pardoned two District of Columbia police officers who had been convicted of murder after chasing a 20-year-old man riding a moped. Trump said, ““They were arrested, put in jail for five years because they went after an illegal. And I guess something happened where something went wrong, and they arrested the two officers and put them in jail for going after a criminal.” As it turns out, however, the man was an American citizen and his “crime” was illegally riding his moped on a sidewalk.

The pardon looks suspiciously like a sop to the police unions, who were understandably upset that their President on the previous Monday had pardoned people who had punched, kicked, bear-sprayed and tased police officers defending the Capitol on January 6th.

On Thursday, Trump pardoned nearly two dozen anti-abortion activists who had been convicted of blockading abortion clinic entrances. “They should not have been prosecuted. Many of them are elderly people,” Trump said in the Oval Office. “This is a great honor to sign this.”

So what is the takeaway in all of this? As I explained this week to a CARES Act home confinee months away from release, who was inexplicably omitted from all commutation lists, (1) be sure to assault a cop during your offense; and (2) whatever your crime, be sure to accept payment in Bitcoin.

Condemnation for both Biden’s and Trump’s actions is loud. A Washington Post columnist wrote:

It’s debatable which president’s abuse of the pardon power on Monday — Joe Biden’s or Donald Trump’s — was more damaging. But that’s the nature of tit-for-tat escalations. The public argues about who started it and who did it worse. At the end of the process, constraints on the use of political power are gone and everyone is equally exposed.

Start with Biden’s extraordinary preemptive pardons for select political allies and family members that came down just before Trump’s inauguration. They aren’t even really pardons, because they don’t clear their recipients of specific offenses. They’re grants of immunity…

[T]he breathtaking scope of Trump’s amnesty — including immediate release for even the most violent members of the mob — is not defensible on grounds other than political spite and retaliation. Even his vice president seems not to have expected it. Deterrence against political violence in Trump’s second term in office has been meaningfully weakened. Those on the right inclined toward violence in the next four years have reason to wonder whether they will be punished.

Reason wrote, “Monday was a big day for presidential clemency, but that does not mean it was a good day. Both outgoing President Joe Biden and incoming President Donald Trump used that power in self-interested, short-sighted ways, sacrificing the public interest to benefit political allies and, in Biden’s case, family members.”

clemencyjack161229Verdict argued, “Yet now, as with so much in contemporary politics, the return of President Donald Trump has changed how we think about the pardon power. The personal is political with Trump, only more so. With a President who views so much through the prism of himself, it is no surprise that we’re now talking about perhaps the most personal form of presidential power at the start of Trump’s second term rather than at the end.”

For now, the presidential clemency power has become solely a political tool, the use of which may completely obliterate its traditional use as a tool of mercy applied to people whose offenses had no political veneer. We can only hope that like goldfish memory, public perception of presidential clemency dims rapidly enough so that it once again is applied to address individual defendants’ situations rather than to score political points or favor political supporters.

Dept of Justice, Office of Pardon Attorney, Clemency Warrants (January 24, 2025)

Reason, President Trump Comments on President Biden’s Pardons: “An Unbelievable Precedent” (January 21, 2025)

White House, Granting Pardons and Commutation of Sentences for Certain Offenses Relating to the Events at or Near the United States Capitol on January 6, 2021 (January 20, 2025)

Axios, “F–k it: Release ’em all”: Why Trump embraced broad Jan. 6 pardons (January 22, 2025)

Reuters, Exclusive: Trump starts new term with 47% approval; Jan. 6 pardons unpopular, Reuters/Ipsos poll finds (January 21, 2025)

MSNBC, Jan. 6 defendants weren’t the only controversial Trump pardon recipients this week (January 23, 2025)

Washington Post, The Biden-Trump pardons show collapsing executive restraint (January 21, 2025)

Reason, Biden and Trump Show Presidents How To Abuse Clemency (January 22, 2025)

Verdict, Five Ways of Looking at Presidential Pardons (January 22, 2025)

– Thomas L. Root

“AIC” Era Ends At BOP As Director Ousted – Update for January 23, 2025

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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.

THERE’S A NEW C.O. ON DUTY

kickedout250123It was probably inevitable as soon as she started calling inmates “adults in custody,” but if there were any lingering hopes that the Federal Bureau of Prisons would pursue a course of compliance with the law were dashed in the first hours of the new Trump Administration as BOP Director Colette S. Peters was unceremoniously shown the door.

Trump replaced Peters, a BOP outsider who had run the Oregon prison system before being recruited by then-Attorney General Merrick Garland to bring order to the chaotic management practices of her predecessor, BOP lifer Michael Carvajal, who retired under pressure in 2022.

firing process250123Peters was removed Monday, being temporarily replaced by William W. Lothrop, previously the deputy director of the BOP who started as a USP Lewisburg correctional officer in 1992. Lothrop’s message to BOP employees noted that “[o]n January 20, 2025, Director Peters separated from the Federal Bureau of Prisons…,” not even including an obligatory ‘thanks for your service’ that most such announcement include. Bouncers have hustled inebriated patrons out of bars with more dignity.

Other executive actions Trump took this week regarding criminal justice including restarting federal executions and expanding death-penalty prosecutions, as well repealing Biden’s January 2021 executive order banning BOP use of private prisons.

Additional Trump first-day executive orders made changes that will affect the BOP workforce, including revoking Biden’s diversity, equity, inclusion and accessibility emphasis for federal employees, instituting a federal hiring freeze, and banning work-from-home.

“We haven’t recovered from the hiring freeze from 2017, and a new one is going to be devastating to an agency that is not even really keeping afloat,” Brandy Moore-White, president of the American Federation of Government Employees’ Council of Prison Locals – the union that represents some 30,000 BOP employees – told Law360 on Tuesday.

rapeclub221215Despite the introduction of legislation in 2022 to make appointment of the BOP Director subject to Senate approval, the appointment is still one made by the President without legislative oversight.

Writing in Forbes, Walter Pavlo noted that Peters’ relationship with front line BOP staff was “strained.” He said,

While Peters attempted to put on a face of a kinder, gentler BOP, staff continued to feel the pressures of long hours and mixed assignments as a result of augmentation (a practice that allows medical staff, case managers or executive assistants to act as corrections officers where there are shortages). There was little progress made with mending relationships with union representatives [and] the BOP ranked near the bottom in employee job satisfaction among over 430 federal agencies. The union is also seeking to reverse the closure of the prisons that Peters announced in December.

Fox News said Peters was “touted as a reform-minded outsider tasked with rebuilding an agency plagued for years by staff shortages, widespread corruption, misconduct and abuse,” but nevertheless suggested that the FCI Dublin sex scandal and dire conditions at prisons inspected by the Dept of Justice inspector general were her fault, conveniently overlooking Carvajal’s contentious leadership and relations with Congress.

The Dublin “rape club” scandal occurred prior to Peters’ hiring, although the nightmarish midnight closure of the women’s prison a year ago lays at her feet. In April 2024, the 600 women held at Dublin were taken to 13 other prisons across the country, “in journeys that many describe as horrific,” according to Oakland TV station KTVU. Congressional leaders called the transfer procedure “appalling” and demanded answers from Peters about why the prison was shut down so abruptly.

trump250123Kara Janssen, an attorney with one of the firms representing Dublin inmates in a class action against the BOP over Dublin, told KTVU she’s glad to see Peters go. “I don’t think she was doing a good job,” Janssen said. “It is probably a good thing that she is not there anymore. I hope that President Trump appoints someone who will take reform efforts seriously. The BOP is a very, in my opinion, dysfunctional agency. And it really needs somebody that can put it in a different direction.”

Pavlo thinks that Trump will appoint an outsider to run the BOP. He wrote, “With one of the largest budgets in the Department of Justice, the BOP is ripe for a makeover, but it will take a strong leader to guide the agency to stability while also making it more efficient and humane.”

Law360, Trump Installs New Prisons Chief, Revives Private Facilities (January 21, 2025)

Forbes, Bureau Of Prisons Director Colette Peters Out On Trump’s First Day (January 21, 2025)

Fox News, Bureau of Prisons director out as Trump’s Justice Department reforms take shape (January 22, 2025)

BOP, Message from the Acting Director (January 21, 2025)

KTVU, Bureau of Prisons director Colette Peters out as President Trump takes office (January 22, 2025)

– Thomas L. Root

Rahimi Making § 922(g) Constitutionality Issue Messier – Update for January 21, 2025

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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.

RAHIMI ASCENDENT

The Supreme Court’s 2022 New York State Rifle & Pistol Assn. v. Bruen decision held that if a gun right (like going armed in public or even possessing one after a felony conviction) was one covered by the 2nd Amendment, the government could deny that right only if it could point to a law or regulation from 235 years ago that did the same.

Given that a federal law denying violent felons the right to have guns was not passed until 1938 – and it wasn’t expanded to all felons until 1968 – it seemed that Bruen was destined to lead to 18 USC § 922(g)(1), the felon-in-possession statute, being declared unconstitutional.

whataburger230703But then came Zack Rahimi, whose gun-fueled road rage and general craziness – including opening fire over an alleged fast food joint indignity – led to last summer’s SCOTUS decision that held § 922(g)(8) (which bans gun possession by people under a domestic protection order) was perfectly constitutional. In United States v. Rahimi, the Supremes held that Bruen didn’t mean that the government had to find a 235-year-old law that was a precise fit to § 922(g), provided that “the new law is ‘relevantly similar’ to laws that our tradition is understood to permit, ‘apply[ing] faithfully the balance struck by the founding generation to modern circumstances.’”

Rahimi “has been relatively impotent since the Court handed it down a few months back,” Jake Fogleman wrote in Sunday’s The Reload, but this “relevantly similar” test has now “inspired an appeals court to reverse a sweeping ruling against a federal firearms prohibition.”

The 5th Circuit unanimously upheld 18 USC § 922(n), which bars people under indictment from receiving guns, reversing a WD Texas district court decision handed down after Bruen but before Rahimi. Based on Rahimi’s refinement of the Bruen test, the Circuit ruled in United States v. Quiroz that “the government has met its burden of showing that § 922(n) is relevantly similar to pretrial detention at the founding [of the nation].” The court reasoned that the purpose of § 922(n) (public safety) and the burden it imposes (temporary disarmament) align with the historical justifications and effects of pretrial detention. It observed that many felonies punishable by death at the founding would have resulted in pretrial detention and disarmament, and that § 922(n) imposes a lesser burden by only restricting receipt of new firearms, not possession.

gunknot181009Other constitutional challenges to § 922 had an equally rocky time last week. In United States v. Quailes, the 3d Circuit held that despite its Range v Attorney General decision of a month ago, two defendants charged with § 922(g)(1) violations could be convicted consistent with the 2nd Amendment because they were on state parole when caught with guns and thus had not completed their sentences. The 3d said that “this Nation’s ‘history and tradition’ of ‘disarming convicts who are completing their sentences’ applies with equal force to defendants who are on state supervised release—including a sentence of parole or probation.”

In United States v. Contreras, the defendant had been convicted for being a drug user in possession of a gun (18 USC § 922(g)(3)). He did 24 months and then went on supervised release. While serving his supervised release term, he stupidly posted a picture on social media of himself holding a pistol. The police followed him and got him in a traffic stop with eight ounces of marijuana and the gun.

Last week, the 5th Circuit held that § 922(g)(1) was constitutional as applied to defendant Contreras. The 5th compared the felon-in-possession prohibition to § 922(n), which temporarily restricts defendants’ access to guns for public safety reasons and “align[s] with the historical justifications and effects of pretrial detention,” as well as colonial-era laws disarming people who are intoxicated.

“Here,” the Circuit said, “we have Contreras, a felon who after being convicted for being armed while intoxicated and being placed on temporary supervised release, was again found armed while intoxicated, this time while completing the sentence for the first crime… There is no ‘historical twin’ of § 922(g)(1); but that is not what our jurisprudence requires… Instead, “the appropriate analysis involves considering whether the challenged regulation is consistent with the principles that underpin our regulatory tradition.”

Finally, in United States v. Curry, the 5th Circuit last week rejected a claim that the felon-in-possession statute was facially unconstitutional, that is, that it necessarily violated the 2nd Amendment is all cases. This decision was unsurprising in light of Rahimi.

easypeasy230214In his Rahimi dissent, Justice Clarence Thomas predicted that the “relevantly similar” test was overbroad. “Given that imprisonment (which involved disarmament) existed at the founding, the Government can always satisfy this newly minted comparable-burden requirement. That means the Government need only find a historical law with a comparable justification to validate modern disarmament regimes.”

Fogleman wrote that as the result of Rahimi’s “relevantly similar” test is that “a panel from a circuit known for going much [further] than its peers in hewing to a strict interpretation of the Bruen test has now okayed a modern gun law based on loose principles related to detaining suspected criminals at the time of the Founding.”

New York State Rifle & Pistol Assn v. Bruen, 597 US 1 (2022)

United States v. Rahimi, 602 US 680 (2024)

The Reload, Analysis: Rahimi Makes an Impact (January 19, 2025)

United States v. Quiroz, Case No. 22-50834, 2025 U.S.App. LEXIS 706 (5th Cir. January 13, 2025)

United States v. Quailes, Case No 23-2533, 2025 U.S.App. LEXIS 1107 (3d Cir. January 17, 2025)

United States v. Contreras, Case No 23-50840, 2025 U.S.App. LEXIS 701 (5th Cir. January 13, 2025)

United States v. Curry, Case No 22-11084, 2025 U.S.App. LEXIS 702 (5th Cir. January 13, 2025)

– Thomas L. Root

Setting Records, Cleaning Up Messes: The Final Biden Clemencies – Update for January 20, 2025

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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.

CLEMENCY IS HIS SWAN SONG

swan160314President Joe Biden last Friday broke his own record for the most commutations issued in a single day, shortening the sentences of nearly 2,490 people who – according to the White House – are convicted of nonviolent drug offenses.

The White House has trumpeted that with having granted commutations of over 4,000 over the lifetime of his Administration, Biden has exceeded the previous record set by Barack Obama of 1,715. “With this action, I have now issued more individual pardons and commutations than any president in U.S. history,” Biden crowed in a statement.

A reasonable observer could easily conclude that the President is more interested in making an entry in his Administration’s record book than in righting a historical wrong.

Many of the 2,590 commutations specify a release date for the recipients of February 17. Three are to be released March 18, and additional tranches are to be cut loose in staggered 30-day periods after that. A significant number had their sentences reduced to a specified term of months, meaning that in many cases the inmates still have significant time to serve.

clemency170206Twenty-one of the people commuted last Friday were CARES Act releasees who were omitted from the December 12th commutation list without explanation. Several other CARES Act people whose cases clearly fit the profile of person Biden said he wanted to commute but who were omitted from the December 12th list (and whose offenses are not drug related) still hope for commutation prior to noon today.

The White House announced commutations of two more people and pardons of five – including Jamaican black political activist Marcus Garvey (who died in 1940) – in an announcement yesterday morning.

“This action is an important step toward righting historic wrongs, correcting sentencing disparities, and providing deserving individuals the opportunity to return to their families and communities after spending far too much time behind bars,” Biden said, not mentioning that many of those whose sentences were commuted have been serving time imposed by the Violent Crime Control and Law Enforcement Act of 1994. Biden was the author, sponsor and principal cheerleader in favor of that legislation.

Some reporter noted as much. One said that with these commutations, Biden “hope[d] to finally correct the historical and devastating blunder of his 1994 Crime Bill that disproportionately affected African Americans.”

pardonme190123This morning,  Biden issued pre-emptive  pardons to people Biden fears will be targeted for retribution by President-elect Trump due to their involvement in his prosecution for the January 6 riot and classified document cases. Those pardoned include Anthony Fauci, General Mark Milley, the staff and members of the January 6th Committee, and Capitol and D.C. Metro police officers who testified before the Committee.

Reason, Biden Has Now Issued Far More Commutations Than Any of His Predecessors (January 15, 2025)

The White House, Clemency Recipient List (January 17, 2025)

The White House, Clemency Recipient List (January 19, 2025)

Washington Informer, Biden Seeks to Correct Historical Wrongs with Commutation of 2,500 Sentences (January 17, 2025)

NBC, Biden sets record for most pardons and commutations with new round of clemency for nonviolent drug offenders (January 17, 2025)

– Thomas L. Root