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Congress Is Back In Town… Little Has Changed – Update for September 12, 2023

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

THEY’RE B-A-A-A-CK

Congress returned last week after its long August recess, ready to dig in and work on anything other than criminal justice reform.

equal220812

Last week, the right-of-center Americans For Tax Reform wrote all members of Congress urging passage of the EQUAL Act (S.524, H.R. 1062). Anti-tax advocate Grover Norquist argued that the crack/powder sentencing “unjustified disparity has resulted in the imprisonment of people who pose no greater threat than their counterparts convicted of cocaine offenses for far greater periods.”

Norquist argued that “it is a core, taxpayer-funded, government role to protect citizens from crime, and manage the criminal justice system. Taxpayers, and all Americans who cherish individual liberty, should take an interest that the criminal justice system is efficient and effective at protecting public safety, upholding the rule of law and property rights, while respecting the constitutional rights of citizens. Where there are failures, conservatives should work to fix the issue, just as we do in other areas of government.”

The Illinois Times last week reported that Sen Richard Durbin (D-IL), chair of the Judiciary Committee, said the EQUAL Act has failed to come up for a Committee vote “because of the opposition of a Republican member of the committee, whom he declined to identify.”

“One Republican wouldn’t go for 1-to-1, and we deal with consensus on the committee,” Durbin said. “I have him down lower – substantially lower than 18-to-1 – and I’m trying to get the other side that wants it to be 1-to-1 to accept a different figure. But that’s where we’ve been stuck for over a year. I’m going to do my best to get this moving.”

The unidentified Republican is undoubtedly Sen Charles Grassley (R-IA), ranking Republican on the Committee and co-sponsor with Durbin of a number of reform measures, most notably the First Step Act. Last December, Grassley’s proposal of 2.5-1 and nonretroactivity except with Dept of Justice consent in the so-called SMART Cocaine Sentencing Act (S.4116) killed EQUAL’s passage in the last Congress. Now, 9 months later, nothing seems to have changed.

Meanwhile, in the wake of last week’s recommendation by the Dept of Health and Human Services that marijuana be rescheduled from a Schedule I to a Schedule III drug, the White House last week asserted that President Biden has “always supported the legalization of marijuana for medical purposes,” she said. “He’s been very clear about that, where appropriate, consistent with medical and scientific evidence.

potscooby180713Marijuana Moment noted that “it’s not accurate to say that Biden has “always” backed cannabis reform. As a senator, he championed several pieces of legislation that ramped up the war on drugs.” Nevertheless, “if DEA goes along with HHS’s Schedule III recommendation, that would represent a major shift in federal marijuana policy, with an acknowledgment that cannabis is not a drug of high abuse potential and no medical utility.”

On the other hand, The Hill reported that advocates and policy experts say rescheduling marijuana under the Controlled Substances Act does not address the plethora of racial justice issues caused by current law.

“Rescheduling doesn’t address … the harm to marginalized communities,” said Natacha Andrews, executive director for the National Association of Black Cannabis Lawyers. “It doesn’t address the over-policing, it doesn’t address the immigration issues, it doesn’t address the access to federal services, and it’s not in alignment with what 38 states have done to regulate and legalize.”

“My initial reaction is that this is less than what the Biden administration promised specifically,” Cat Packer, director of drug markets and legal regulation at the Drug Policy Alliance, told The Hill.

MSNBC reported, “To be sure, moving marijuana to Schedule III wouldn’t dismantle the drug war or solve the host of problems needlessly caused by prohibition. Descheduling, or removing the plant from the government’s list of controlled substances, would make more sense and better align with Biden’s stated criminal justice views. Still, rescheduling would be historic, if only due to the historic stupidity that has kept cannabis on Schedule I to date.”

Americans for Tax Reform, Support for the EQUAL Act (September 8, 2023)

Illinois Times, Unjust Sentencing (September 7, 2023)

Marijuana Moment, Biden Has ‘Always Supported The Legalization Of Marijuana For Medical Purposes,’ White House Says Amid Rescheduling Recommendation (September 4, 2023)

The Hill, Marijuana rescheduling falls short of expectations on Biden (September 8, 2023)

MSNBC, What the federal ‘rescheduling’ of cannabis would (and wouldn’t) mean (September 4, 2023)

– Thomas L. Root

Socrates Was Right About Ineffective Assistance of Counsel – Update for September 11, 2023

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

COUNSEL’S INVESTIGATION IS A GOOD IDEA, 3RD CIRCUIT SAYS

Socrates is reputed to have said that “the unexamined life is not worth living.” The 3rd Circuit reminded us last week that an attorney’s unexamined defense strategy is not worth crediting.

knifegunB170404Two guys, Ron Rogers and Demetrius Hayes, got into a shootout on a Philadelphia street. Neither one hit the other, but Ron’s friend Bill Green got hit by a stray bullet from Ron’s gun. He died, and both Ron and Demetrius were charged by the Commonwealth with murder.

Demetrius got tried first. One witness, Myra Summers, said she wasn’t sure who had fired first. Another witness, Tyrone Singleton – who was Demetrius’s friend – said Ron fired first. Demetrius was acquitted.

A week later, Ron went to trial. Now, Ty’s testimony took an abrupt turn, naming Demetrius — not Ron —as the first shooter. Without pointing out Tyrone’s flip, the prosecutor continued questioning Singleton for a bit before the trial judge ended proceedings early for the day. After excusing the jury, the judge admonished Ty for his inconsistent testimony, saying he committed “perjury on the record.” The judge warned Tyrone that if he was “playing some little game here,” the judge would ensure he “receive a maximum consecutive sentence” for perjury. The judge encouraged him to “[d]o some long hard thinking” before resuming his testimony, because if “you say that [Demetrius shot first] again, it is perjury.”

Through this harangue, Ron’s lawyer raised no objection.

Unsurprisingly, Tyrone got it. The next day, he suddenly remembered that Ron – not Demetrius – shot first. Ty explained he “made a mistake” the day before, chalking the error up to nervousness. Again, Ron’s lawyer said nothing. In fact, not only did he not object, he didn’t even bother to cross-examine Tyrone about the changed testimony. Ron was convicted of third-degree murder and sentenced to 16 to 32 years in prison.

Ron claimed ineffective assistance of counsel in a state post-conviction claim. When he lost, he took it to federal court, where a district judge held that the state court conclusion that Ron’s lawyer was not ineffective made perfect sense.

Last week the 3rd Circuit disagreed, and granted Ron’s 28 USC § 2254 motion. It rejected the claim of Ron’s attorney that “he had no basis for objecting to the admonishment because regardless of how Tyrone testified, his testimony would not have been determinative because he lacked credibility.” Counsel said his strategy was to rely on Myra Summers, who counsel said was the more credible witness despite the fact she had testified the week before that she didn’t see who shot first.

The 3rd Circuit complained that Ron’s counsel had neither seen nor read Myra’s testimony the week before. The Circuit observed that an attorney’s duty to test the government’s case requires that “defense counsel has done some investigation into the prosecution’s case and into various defense strategies”. The constitutional standard for ineffective assistance – established almost 40 years ago in Strickland v, Washington – is the same whether counsel screws up in a state or federal criminal proceeding. Here, the 3rd ruled, the state courts had unreasonably applied Strickland when they found Ron’s counsel’s performance adequate, “having failed to properly consider prevailing professional standards.”

dumblawyer180108And that wasn’t all, the Circuit said. Pennsylvania law firmly established that a trial judge admonishing a witness about perjury if he or she persisted was reversible error. The witness says what the witness says, and any such threat in the middle of testimony puts “pressure on a witness to testify in a particular way.” For Ron’s lawyer to believe that the trial judge’s threats against witness Tyrone were permissible was deficient performance, the 3rd said. “An attorney’s ignorance of a point of law that is fundamental to his case combined with his failure to perform basic research on that point is a quintessential example of unreasonable performance under Strickland.”

liar170209“So too,” the appeals court said, with counsel’s later failure to cross-examine Ty regarding his changed testimony. “Counsel characterized Singleton as a liar, trying to help his buddy out, whose testimony would not be determinative of the outcome of this case, Not so,” the 3rd Circuit said. “Singleton was the only witness to ever claim Ron shot first — the ultimate issue in the case. And Singleton’s pre-admonishment testimony to the contrary, which aligned with Myra Summer’s original eyewitness statement, would benefit the defense by casting doubt on Singleton’s earlier implication of Rogers… Counsel’s performance [is] deficient when he, among other failures, neglected to “adapt his argument to the testimony in evidence.”

But winning an ineffective assistance of claim also requires a finding of prejudice. The state court found Ron had not shown “that but for the act or omission in question, the outcome of the proceedings would have been different.” But Strickland is clear that the standard is just “a reasonable probability that . . . the result of the proceeding would have been different.” By requiring Ron to prove the outcome would have changed, the state court applied a standard “contrary to… clearly established Federal law, as determined by the Supreme Court.”

Rogers v. Superintendent Greene SCI, Case No. 21-2601, 2023 USApp. LEXIS 23748 (3d Cir. Sep. 7, 2023)

– Thomas L. Root

Twenty Rocky Years of PREA – Update for September 8, 2023

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

BITTERSWEET ANNIVERSARY FOR PREA

PREAAudit211014Bureau of Prisons Director Colette Peters last week commemorated the 20th anniversary of the Prison Rape Elimination Act in a statement that acknowledged “our dedicated employees who have worked diligently over the last two decades to uphold the letter of the law” while she hinted at PREA’s rocky ride with the BOP culture over the past two decades.

“The culture of the past which tolerated abuse and failed to meet the promises of PREA,” she warned, “will be met with swift justice. All individuals in our custody have a right to be physically, mentally, and sexually safe.”

Putting an ugly asterisk on her statement, former BOP employee Gregory Barrett, described by the Lexington Herald Leader as a “senior officer at a federal prison in Lexington” (the FMC Lexington minimum security prison camp for women) pled guilty to sexual abuse of an inmate multiple times between June and July 2022, according to the plea agreement. Last October, Barrett threatened and intimidated an inmate witness to the crimes, telling her to “keep her mouth shut” and suggesting retaliation if she reported the crime.

sexualassault211014Washington Post columnist George Will, writing about the doctrine of qualified immunity a week ago, said, “Americans would gag if they had an inkling of what occurs, unreported, in prisons. Americans should, however, be sickened when judges, with hairsplitting misapplications of qualified immunity, openly abet governmental malfeasance that allows prison violence. When prisoners depend on protection by governments that cannot be held accountable for culpable indifference, mayhem proliferates, lethally.”

BOP, PREA 20-Year Anniversary (September 1, 2023)

Lexington, Kentucky, Herald Leader, Former federal prison officer in Lexington pleads guilty to sexually abusing an inmate (August 29, 2023)

Washington Post, Four prison murders lead to a sickening ruling on ‘qualified immunity’ (August 23, 2023)

– Thomas L. Root

Biden FDA Delivers On Pot Rescheduling; Now for the DEA – Update for September 7, 2023

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

FOOD AND DRUG ADMINISTRATION PROPOSES DROPPING MARIJUANA TO SCHEDULE III

marijuana221111The Dept of Health and Human Services’ Food and Drug Administration last week recommended that the Drug Enforcement Administration significantly loosen federal restrictions on marijuana, yet stopping short of proposing that pot be removed completely from the Controlled Substances Act.

HHS Assistant Secretary Rachel Levine wrote in a letter to the DEA that the FDA wants the drug moved from Schedule I to Schedule III under the CSA. As part of the review process, an HHS spokesperson told Politico last week, “HHS conducted a scientific and medical evaluation for consideration by DEA. DEA has the final authority to schedule or reschedule a drug under the Controlled Substances Act. DEA will now initiate its review.”

President Biden rolled out new initiatives on marijuana last October, pardoning all prior federal simple possession offenses (none of whom was in federal prison at the time) and asking HHS and the Attorney General to review how marijuana is scheduled based on its medical use. While the DEA is not required to follow HHS’s recommendation, it is unlikely that the agency will buck the President, who has made this a White House priority.

Reclassification is a step short of legalizing marijuana entirely, but it would mark a critical shift away from marijuana’s status as a Schedule I substance. Schedule I includes drugs with high risk of abuse that have no legitimate purpose, like heroin, LSD and ecstasy. Schedule III substances, such as ketamine, are seen as less dangerous and can be obtained legally with a prescription.

mario170628The effect of dropping marijuana to Schedule III might be a Sentencing Commission rewrite of USSG § 2D1.1 on marijuana offenses. Changing statutory minimums for marijuana set out in 21 USC § 841(b)(1), however, would require action by Congress.

DEA review will be complete within the next year.

Bloomberg, US Health Officials Urge Moving Pot to Lower-Risk Tier (August 30, 2023)

Politico, Slightly higher times: Biden administration moves to loosen weed restrictions (August 30, 2023)

– Thomas L. Root

Compassionate Release Denial Too Short on Detail, 5th Circuit Says – Update for September 6, 2023

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

5th CIRCUIT SAYS ‘HELP US OUT A LITTLE HERE’ ON COMPASSIONATE RELEASE DENIAL

stanford230904When Allen Stanford, one of America’s leading fraudsters, applied for compassionate release under 18 USC § 3582(c)(1)(A) for a third time, his district court was tiring of him just a bit. The judge denied Allen’s latest attempt at a legal jailbreak  with a terse denial: “[H]aving considered the motion and the applicable law, the Court determines that the foregoing motion should be denied.”

In an August 17 order, the 5th Circuit wanted to give the judge the benefit of the doubt. “[T]he same district judge has ably presided over every chapter of the Stanford saga, and has previously found that Stanford ‘perpetrated one of the most egregious criminal frauds ever presented to a trial jury in federal court’,” the Circuit said, suggesting the district judge probably made a bulletproof decision in denying Allen’s motion and telling him to work toward his release date on March 31, 2103, a mere 79-1/2 years from now.

Nevertheless, the process matters, the 5th seemed to say:

puzzled201223[T]he district court’s order does not tell us that the court based its decision on the § 3553(a) factors. It states only that the court ‘considered [Stanford’s] motion and the applicable law’ and determined that the motion should be denied. We therefore have no reliable indication of the reason for the court’s decision to deny relief. We do not know whether the court denied Stanford’s motion because it concluded—despite new arguments and allegedly new facts—that the § 3553(a) factors still do not warrant early release, or because it concluded that Stanford’s situation is insufficiently ‘extraordinary and compelling,’ or both… Stanford’s third compassionate-release motion may have little chance of success. But judges have an obligation to say enough that the public can be confident that cases are decided in a reasoned way.

The Circuit remanded the case “for the district court to explain its reasons for denial.”

United States v. Stanford, Case No. 22-20388, 2023 U.S. App. LEXIS 21624 (5th Cir. August 17, 2023)

– Thomas L. Root

8th Circuit En Banc Denial Adds Fuel to Felon-in-Possession Debate – Update for September 5, 2023

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

STRIDENT 8TH CIRCUIT DISSENT CALLS 18 USC § 922(g) UNCONSTITUTIONAL

gunb160201Since the Supreme Court’s New York State Rifle & Pistol Ass’n, Inc. v. Bruen decision over a year ago, the constitutionality of just about every federal limitation on gun possession (short of machine guns and howitzers) has been thrown into question. The most important limitation to most of us is 18 USC § 922(g)(1), the messy statute prohibiting some convicted felons (but not all of them, see 18 USC § 921(a)(20) for the confusing details) from possessing some guns or all ammo.

Some appeals courts have ruled that prohibiting the users of controlled substances from possessing guns is unconstitutional. One District Court has held that denying gun possession to someone under indictment is unconstitutional, a case the government has appealed to the 4th Circuit. The 5th Circuit has held that denying a gun to someone subject to a domestic protection order is unconstitutional, a case now before the Supreme Court in United States v. Rahimi.

The most-watched case currently is the 3rd Circuit’s Range v. Attorney General. After a three-judge panel summarily upheld the constitutionality of § 922(g)(1)’s limitation that prevented a guy convicted of a minor fraud three decades ago from having a gun, the Circuit issued an en banc decision last June resoundingly reversing that position. The rehearing decision held that § 922(g)(1) was unconstitutional as applied to a nonviolent guy like Bryan Range.

Two weeks ago, the government got the Supreme Court to extend the time to seek certiorari on Range until October 5.

gun160718You may recall that a week before Range was handed down in June, a three-judge panel in the 8th Circuit rejected defendant Joe Jackson’s claim that “he had a constitutional right under the 2nd Amendment to possess a firearm as a convicted felon.” Joe argued that the only test consistent with the 2nd Amendment was whether the defendant was dangerous to the public, not whether he or she was a felon. The panel disagreed, ruling that status as a felon was enough: “Legislatures traditionally employed status-based restrictions to disqualify categories of persons from possessing firearms,” the Jackson panel wrote. “Whether those actions are best characterized as restrictions on persons who deviated from legal norms or persons who presented an unacceptable risk of dangerousness, Congress acted within the historical tradition when it enacted § 922(g)(1)and the prohibition on possession of firearms by felons.”

Last week, the 8th Circuit denied Joe’s petition for en banc rehearing but did so with a strong dissent by four of the appellate judges. The dissenters complained that the panel decision gives “second-class” treatment to the 2nd Amendment and “creates a group of second-class citizens: felons who, for the rest of their lives, cannot touch a firearm, no matter the crime they committed or how long ago it happened.” They argued that the nation’s historical tradition of firearms control was consistent with a focus on dangerousness, not on felon status:

Disarmament is about dangerousness, not virtue. We know that because colonial and post-ratification gun laws targeted rebellion and insurrection, not criminality. There have always been criminals, but there is no suggestion in any “historical analogue” that criminality alone, unaccompanied by dangerousness, was reason enough to disarm someone. And history certainly does not support Jackson’s unbending rule that felons can never win an as-applied challenge, no matter how non-violent their crimes may be or how long ago they happened.

guns200304Given that the government will seek Supreme Court review of Range (and the government usually gets certiorari when it asks for it) and the 8th Circuit’s Jackson case and Range are diametrically opposed, a Supreme Court ruling on whether § 922(g)(1) is constitutional as applied to nonviolent felons within the next year seems more certain than ever.

United States v. Jackson, Case No. 22-2870, 2023 USApp LEXIS 22991 (8th Cir. Aug. 30, 2023)

United States v. Jackson, 69 F.4th 495 (8th Cir. 2023)

Range v. Attorney General of the United States, 69 F.4th 96 (3d Cir. 2023)

Order, Attorney General v. Range, Case No. 23A140 (S.Ct., Aug 25, 2023)

Sentencing Law and Policy, Dissenting from denial of en banc review, Eighth Circuit judges make case that blanket felon disarmament violates the Second Amendment (August 31, 2023)

– Thomas L. Root

Sentencing Commission To Take Measure of BOP – Update for August 29, 2023

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

“HOW ARE WE DOING? PLEASE TAKE THE FOLLOWING SURVEY…

It’s unlikely that the Federal Bureau of Prisons will be asking prisoners that question anytime soon. But someone might.

howwedoing230829At last week’s meeting, the U.S. Sentencing Commission said that in the coming year, it plans to assess how effective the BOP is in meeting the purposes of sentencing listed in 18 USC § 3553(a)(2). Those purposes include the need for the sentence to reflect the seriousness of the offense, to promote respect for the law, to provide just punishment and adequate deterrence, to protect the public and to effectively provide the defendant with needed training, medical care, or other treatment.

The Commission also plans to continue review of how the guidelines treat acquitted conduct for sentencing purposes. The Supreme Court recently denied review in a baker’s-dozen cases asking it to declare the use of acquitted conduct at sentencing to be unconstitutional. Three Justices cited the ongoing USSC study of the issue as a reason to hold off.

Other Commission priorities in the coming year include studying the career offender guidelines, methamphetamine offenses, sentencing differences for cases disposed of through trial versus plea, and sentences involving youthful individuals.

badfood230829Speaking of prisoner satisfaction, inmates should not expect any help if they are unhappy with the chow. Two weeks ago, the 10th Circuit ruled that an inmate claim that the BOP was tampering with the food it served him – in violation of the 8th Amendment’s ban on cruel and unusual punishment – presented a new application of Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics. The Circuit said that the existence of alternative remedies (the BOP’s administrative remedy route, no doubt) made a Bivens claim unavailable to the prisoner under last year’s Supreme Court decision in Egbert v. Boule.

Egbert drove a metaphorical legal stake into Bivens‘ heart, as the 10th’s decision in the prisoner food case makes clear. It’s easy enough to cluck one’s tongue over Prisoner Adams’ tainted food claim (like any prison food is edible), but a lot of serious Bivens claims died on Egbert’s hill.

US Sentencing Commission, Final Priorities for Amendment Cycle (August 24, 2023)

Adams v. Martinez, Case No 22-1425, 2023 U.S. App. LEXIS 21369 (10th Cir, August 16, 2023)

Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 US 388 (1971)

Egbert v Boule, 142 S.Ct. 1793, 213 L.Ed.2d 54 (2022)

– Thomas L. Root

Mr. Explainer’s “How-to” On Applying For Retroactivity – Update for August 28, 2023

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

RETROACTIVITY – WHAT HAPPENS NOW?

mrexplainer230828Last Friday, I reported on the United States Sentencing Commission’s  August 24 action making two of its Guidelines amendments from last April retroactive. Today, I have asked Mr. Explainer to tell people just how prisoners can go about applying for a shorter sentence.

Over 85,000 Federal Bureau of Prisons inmates have either had status points applied in their Guidelines sentencing calculations or had no criminal history points to begin with.  However, the Sentencing Commission estimated in its May 2023 Impact Analysis that only about 11,500 prisoners will be eligible for a lower sentencing range due to the status-point change and about 7,250 prisoners will be eligible for a lower sentencing range based upon the “zero-point” change.

Who Should File: The Dept of Justice complained to the Commission that regardless of who is eligible for a reduced sentence, most zero-point offenders or those with status points are likely to move for a reduction anyway. This would flood the courts, critics complained (many of whom have predicted 17 of the last three times changes in the law or Guidelines did so).

ineligible230828Still, history suggests that if you aren’t eligible, you should save a stamp. Motions that are dead on arrival only gum up the works for people who have meritorious issues and are already waiting too long for a judicial response.

Are you eligible? First, figure out whether applying zero-point or status-point to your Guidelines would change your sentencing range. This is important: If after you adjust your Guidelines for zero-point or status-point, your sentence is within or below your adjusted sentencing range, you are ineligible. Period. Do not pass “go.”

Example: Mike Methdealer had zero points and was a Crim I. His Guideline sentencing range was 135-168, but his judge gave him a break, sentencing him to 120 months, his mandatory minimum. Applying zero-point, his Guidelines fall to 108-135, but he still has a 120-month mandatory minimum. Mike is not eligible.

Example: Rick Recidivist had six criminal history points, putting him at the top of Category III. Two of those were status points. Take those away, and he would have four points, putting him at the bottom of Crim Category III. Rick, too, is not eligible.

Even worse, Rick was sentenced as a Guidelines career offender. Definitely not eligible.

Example: Sammy Snitch had a guideline sentencing range of 188-235 months. But he rolled on his co-defendants, and the judge gave him a four-level 5K1.1 departure to 121 months. Applying his status-point reduction would drop his range to 168-210 months. Special rules apply to people with 5K1.1 sentences, and he would be eligible to have his 121 month reduced proportionately.

Things are especially tough for zero-point men and women, who must meet all of the conditions listed in new USSC § 4C1.1: (1) no USSG § 3A1.4 terrorism adjustment; (2) no violence or threats of violence; (3) no one got hurt; (4) no sex offense; (5) the defendant did not personally cause “substantial financial hardship” (defined in Application Note 4(F) of the Commentary to USSG § 2B1.1); (6) no gun involved in the offense; (7) the offense did not involve individual rights under USSG § 2H1.1; (8) no USSG §3A1.1 adjustment for a hate crime or vulnerable victim or  USSG §3A1.5 for serious human rights offense; and (9) no adjustment under USSG  §3B1.1 for role in the offense and offense was not a 21 USC § 848 continuing criminal enterprise.

When to File: You can file for the reduction as early as November 1, 2023. However, no court is allowed to let the reduction become effective before February 1, 2024.

How to file: The filing you are making is under 18 USC 3582(c)(2) and USSG 1B1.10. There are two components to your showing. One, you have to prove that you are eligible. Two, you have to convince the judge that you are worthy of the reduction.

A judge has almost complete discretion to grant you the reduction up to the bottom of your adjusted range. You have to sell yourself – especially your post-sentence record – to the court.

Who to Hire: No one can answer this for you. You could prepare and file a motion yourself.  You could hire a lawyer or a writing service, remember that in the past (such as the drugs-minus-two in 2014 and Section 404 crack motions after the First Step Act), many district courts appointed the Federal Public Defender to represent eligible prisoners. Be sure you’re not eligible to get it for free from the FPD before you spend good commissary money on a mouthpiece.

phonescam230828What Not to Do:  Speaking of people willing to take your money, the BOP last week issued a media advisory that a phone scam is going around where callers are identifying themselves as BOP employees to ask you to pay money to secure release to pre-release custody for your loved ones. Presumably, the BOP now takes Apple iTunes cards and Googleplay as well as postal money orders.

You can say a lot of things about the BOP, but it does not call people to demand their personal information or money. For now, you cannot buy $10,000 ankle monitors or use prepaid gift cards to buy people’s way out of BOP custody.

US Sentencing Commission, Public Meeting (August 24, 2023)

US Sentencing Commission, Retroactivity Impact Analysis of Parts A and B of the 2023 Criminal History Amendment (May 15, 2023)

Sentencing Law and Policy, US Sentencing Commission votes to make its new criminal history amendments retroactive and adopts new policy priorities (August 24, 2023)

Law360, Sentencing Commission Backs Retroactive Cuts For 1st Timers (August 25, 2023)

Forbes, Bureau of Prisons Warns of Scams (August 25, 2023)

– Thomas L. Root

Criminal History Guidelines Going Retro By Narrowest of Margins – Update for August 25, 2023

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

SENTENCING COMMISSION CLIFFHANGER SENDS CRIMINAL HISTORY CHANGES RETROACTIVE

reeves230706Sentencing Commission meetings – and admittedly, we don’t have many in our sample, because the USSC was moribund for the five years ending last August – are usually yawners. Chairman Carlton Reeves likes to talk and loves polite consensus. No one on the Commission is a bomb-thrower, and every the most vigorous policy disputes are cloaked in courtesy. Everyone – even the ex officio Dept of Justice member Jonathan J. Wroblewski – gets a turn at the mic.

That’s partly why yesterday’s meeting was so surprising.

The Commission approved the first retroactive application of a Guideline change in nine years, deciding that Amendment 821 – which lowers criminal history scores in some cases – should apply to people already sentenced. It also adopted policy priorities for the 2024 amendment cycle that include maybe amending how the guidelines treat acquitted conduct and assessing whether Bureau of Prisons practices are effective in meeting the purposes of sentencing.

Zero is Hero:  Right now, someone with zero or one criminal history point (a minor misdemeanor) is scored a Criminal History Category I. This rating provides the lowest sentencing range for any given Guidelines offense level. The Commission has adopted a new ”zero-point” Guidelines amendment, which added Section 4C1.1 to the Guidelines. The new section will grant people with zero criminal history points who meet a long list of other conditions (such as no guns or violence, no sex offenses) a 2-level reduction in their Guidelines offense level. The practical effect will be that the person’s advisory sentencing range will drop two levels (such as from Level 30 (97-121 months) to Level 28 (78-97 months).

Status Seekers: At the other end of criminal history, the Guidelines have always assigned an extra two points if the current offense was committed while someone was under supervision. Supervision could be probation or parole from a prior offense or supervised release from a prior federal offense. The two points (called “status points”) could be a snare for the unwary. A defendant involved in a conspiracy of several years duration might pick up a DUI offense during the period the conspiracy is going on. Even if the local judge lets him or her off with unsupervised probation, that local conviction would add 2 criminal history points and quite likely land the defendant in a higher criminal history category.

nostatus230825Last April, the Sentencing Commission abolished all status points for people who had fewer than seven accumulated criminal history points driving their criminal history category. For those with seven or more points, only one status point would be added rather than two. In making this change, the USSC determined that status points had little to no relevance in the accurate determination of a criminal history profile.

As it must do whenever it lowers the Guidelines, the Commission last May opened a proceeding to determine whether those changes should benefit people who have already been sentenced as well as those who have yet to be sentenced. This retroactivity proceeding ended with yesterday’s meeting.

Chairman Reeves opened the meeting with a full-throated endorsement of making the criminal history amendments retroactive. Commissioners Luis Restrepo (Judge on the 3rd Circuit Court of Appeals) and Laura Mate (Federal Public Defender) followed him, voicing their support for full retroactivity.

I yawned. It hardly mattered at this point that the Commission’s audio feed was garbled, because retroactivity was up 3-0, and it seemed that victory was a foregone conclusion. A done deal.

But then, Commissioner Claire Murray (a former Assistant Attorney General) delivered an ordered and rational argument against retroactivity, followed by complementary arguments against going retro by Commissioners Candice Wong (US Attorney’s Office for DC) and Claria Horn Boom (US District Judge from both districts of Kentucky). Suddenly, the vote was 3-3, and retroactivity was tottering.

It thus fell to Commissioner John Gleeson (Wall Street lawyer and former federal judge) to decide whether 18,000 or so federal prisoners would be eligible to have their sentences adjusted to what USSC doctrine now believed was appropriate. Judge Gleeson did not disappoint.

gleesonB160314Speaking in quiet, measured tones, Judge Gleeson observed that the opponents of retroactivity complained that the changes made by Amendment 821 “do not remedy a systemic wrong and thus could not rectify a fundamental unfairness in the guidelines manual,” and thus the need for finality and the administrative burden placed on courts by retroactivity meant that the changes should not be made retro. “In my view,” Judge Gleeson said, “it is hard to overstate how wrong that argument is.”

Judge Gleeson highlighted the disproportionate impact the two criminal history guidelines had had on minorities. He said that 43% of the prisoners affected by the retroactive change in status points are black and 20% are Hispanic. About 69% of those benefitting from the zero-point change are Hispanic. Judge Gleeson said that while

“there’s no such thing as fully remedying and racial disparity that’s been built into our criminal justice system for so long… making these amendments retroactive will have a tangible effect for people of color… Overreliance on criminal history can drive pernicious racial disparities in sentencing… we [have] visited fundamental unfairness on thousands of people through guidelines that judges follow… [that] we know from the data are wrong… At the receiving end of these sentences there are three-dimensional human beings.”

Final vote for retroactivity was 4-3.

retro160110The retroactivity order prohibits district courts from granting any change in sentences prior to February 1, 2024. The Commission voted that delay to ensure that people who might be released will have the opportunity to participate in reentry programs and transitional services that will increase the likelihood of successful reentry to society.

The Commission estimated in its July 2023 Impact Analysis that retroactive application would carry a meaningful impact for many currently incarcerated individuals:

• 11,495 prisoners will have a lower sentencing range due to the status-point change, with a possible sentence reduction of 11.7%, on average.

• 7,272 prisoners will be eligible for a lower sentencing range based upon the “Zero-Point” change, with an average possible sentence reduction of 17.6%.

Eligible prisoners will have to file a motion with their sentencing courts under 18 USC § 3582(c)(2) seeking the reduction. The district court is entitled to grant no more than a reduction to the bottom of the revised sentencing range (with special rules for people who have had departures for assisting the government), and no issues may be considered other than the revised criminal history score. Whether to grant as much a reduction as possible, only part of the possible reduction, or none at all is entirely up to the judge.

US Sentencing Commission, Public Meeting (August 24, 2023)

Sentencing Law and Policy, US Sentencing Commission votes to make its new criminal history amendments retroactive and adopts new policy priorities (August 24, 2023)

– Thomas L. Root

Instructive § 2255 Procedural Decision from the 7th – Update for August 24, 2023

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

WAKE UP AND SMELL THE COFFEE

coffee230824I always start my day with a hot cup of Death Wish coffee. The caffeine jolt is sufficient to enable me to write about consequential but deadly dull topics, topics such as the “relation back” doctrine as applied to 28 USC § 2255 motions.

I’ll wait while you pour another cup. Or two. This procedural topic is as dry as unbuttered toast, but it’s important to some folks.

“Some folks” includes Freddie Coleman. A decade ago, Fred was sentenced to life in federal prison for conspiring to distribute crack cocaine. The district judge based the sentence on 21 USC § 841(b)(1)(A), which (at the time) mandated a life sentence for a defendant with two or more prior drug distribution felonies. (The statute changed as a result of the First Step Act, but that change was not retroactive).

After losing his appeal, Freddie filed a pro se motion under 28 USC § 2255 to vacate his sentence, arguing that his attorney had provided ineffective assistance by not advising him early on that the government had filed a notice that he should get an enhanced sentence – in this case life in prison –  because of some prior state drug distribution felonies.  Such notices are filed pursuant to 21 USC § 851 and are generally known as “851 notices.”

Later, after the § 2255(f)5 deadline for filing passed – which usually is the cutoff for specifying the issues on which a § 2255 movant intends to proceed  – Freddie tried to amend his pleading expanding on his allegations and claiming for the first time that his lawyer was also ineffective by failing to object to the § 851 notice on the grounds that under the categorical approach adopted in Taylor v. United States, Freddie’s prior Illinois cocaine convictions did not qualify as prior felony drug offenses given that Illinois defined “cocaine” more broadly than federal law.

lawyermistake170227The district court ruled against Fred’s claim that his lawyer never told him about the potential life sentence. On top of that,  the district court denied Freddie’s motion to amend, finding that the amendment did not “relate back” to his initial pleading as required by Federal Rule of Civil Procedure 15(c) because “the claims rested on distinct types of attorney misfeasance and were supported by different facts.”

Last week, the 7th Circuit reversed, vacating Fred’s life sentence.

Everyone knows about statutes of limitations, laws that require people to file claims within a certain period of time or lose them forever.  The same is true of adding new claims to an existing action: those new claims have to be raised within the limitations period or they are barred.

Rule 15(c) provides a limited exception to the limitations bar against amended claims. The subsection allows that “amendments relate back to the date of the original pleading when the claim asserted in the amended plea ‘arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading.'”  Fred argued that his claim that his attorney was ineffective not just in one way but in two where the § 851 notice was concerned was allowable because it all related back to the same transaction.

The Circuit agreed:

Even where an amendment invokes a legal theory not suggested by the original complaint and relies on facts not originally asserted,” the 7th said, “relation back is in order so long as the original and amended petitions state claims that are tied to a common core of operative facts… Even ‘significant’ changes to a complaint… can relate back so long as the defendant had fair notice of the substance of the new allegations from the outset.

Construing Fred’s original pro se § 2255 petition liberally, the Circuit ruled, “as we must… we conclude that the government was reasonably on notice of the claims contained within Coleman’s amended petition. Those claims are substantively similar in time and type to those asserted in his original motion: his attorney’s failure to provide legal advice as to the contents and impact of the § 851 notice.”

lawyerjoke180807Both of Fred’s claims – that his lawyer failed to advise him of the risks of a life sentence because of the § 851 notice and his lawyer’s failure to research whether the § 851 notice was right – challenged his attorney’s conduct as to the § 851 notice. But because the claims relied on different facts, the district court found, the amendment did not relate back. The appellate court thought this was “too crabbed a view” of Fred’s claims, “particularly given his pro se status at the time.”

Just because an amended claim “may involve some different facts than those originally alleged,” the Circuit held, “does not necessarily mean that that claim is not tied to the original claim via a common core of operative facts… Coleman’s success on either of his theories would require the district court to inquire into his attorney’s treatment of the § 851 notice and the adequacy of advice he provided to Coleman as to the impact the notice may have had on the case. This commonality is enough to unite the claims.” And because the government had gotten the district court to rule that Fred’s § 2255 motion meant he had waived the attorney-client privilege as to anything to do with the § 851 notice and the potential life sentence,” the government had the ability to “uncover the facts underlying Coleman’s amended claims.”

“Accordingly, the 7th said, “on balance, any prejudice the government may suffer by allowing the amended complaint to relate back to the original filing is outweighed by the preference expressed in the Federal Rules of Civil Procedure in general, and Rule 15 in particular, for resolving disputes on their merits.”

needcoffee230824After all of this dry resolution of Rule 15(c)’s “relation back” application to Fred’s case, the appellate court found that Fred’s attorney seemed to have dropped the ball by not arguing that the overbroad Illinois statute counted as a prior “felony drug offense” that would enhance his minimum sentence. “It would have been objectively unreasonable for Coleman’s defense counsel to have not even considered a categorical challenge to the government’s reliance on prior Illinois cocaine convictions to enhance Coleman’s sentence,” the Circuit said. “Of course, if counsel did consider the argument but had credible strategic reasons for not raising it, that would be a different question.  But because the claim alleged in Coleman’s amended § 2255 motion, if proven, would entitle him to relief, we find that an evidentiary hearing on this issue is necessary. “

Time for another cup of coffee…

Coleman v. United States, Case No. 22-1678, 2023 U.S. App. LEXIS 21201 (7th Cir. Aug. 15, 2023)

Taylor v. United States, 495 U.S. 575 (1990)

– Thomas L. Root