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Supreme Court Makes It Safe to Lie on Facebook – Update for June 4, 2021

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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.

SUPREMES SCRAPE THE EXCESS ICING OFF THE COMPUTER FRAUD STATUTE

The Supreme Court yesterday fired a shot across the Government’s bow, rejecting the Dept. of Justice’s expansive reading of the Computer Fraud and Abuse Act to criminalize almost everything. The decision is notable not only for declaring that prosaic misconduct is not a federal felony, but for what it portends for other sweeping applications of federal criminal law by DOJ.

bidenmeme210604Nathan Van Buren was a cop who was indebted to a loan shark. After the FBI got wind of the relationship (the loan shark was cooperating with the Feds), it convinced the shark to get Nate to run a license plate through the law enforcement system in exchange for some debt forgiveness. Nate did so, and the Feebs had their man.

Nate was charged under the Computer Fraud and Abuse Act, 18 USC 1030(e)(6), which criminalizes breaking into a computer without authorization as well as conduct that “exceeds authorized access” of a computer. The statute defines that term as meaning “to access a computer with authorization and to use such access to obtain… information… that the accesser is not entitled so to obtain.” Nate was convicted because while he was authorized to use the license-plate search program for official purposes, he was not authorized to run plates for his own profit and amusement. He got 18 months.

The question the Supreme Court addressed in Van Buren may seem a little technical, whether users violate that statute by accessing information for improper purposes or instead whether users violate the statute only if they access information they were not entitled to obtain.

plate210604The Supremes, with junior Justice Amy Comey Barrett writing, said the CFAA only makes it a crime to access information a user is not entitled to obtain. She wrote that the key to understanding the statute is that the user exceeds authorized access only by obtaining information “that the accesser is not entitled so to obtain.” She cited Black’s Law Dictionary, among others, for the proposition that the word “so” is “a term of reference that recalls ‘the same manner as has been stated.’” Under that reading, the sole question is “whether one has the right, in ‘the same manner as has been stated,’ to obtain the relevant information.”

What the CFAA prohibits is obtaining “information one is not allowed to obtain by using a computer that he is authorized to access,” the majority said, rejecting the government’s argument that the circumstance under which it is obtained – think of a cop running a plate on a car he’d pulled over versus running a plate on a strange truck parked in his girlfriend’s driveway – was what made the access illegal or not.

icing210604The Court noted only in passing the main topic that had dominated the amicus filings and much of the time at oral argument in this case: the “breathtaking amount of commonplace computer activity” that the government’s reading would criminalize. For the majority, that reality “underscores the implausibility of the Government’s interpretation,” which provides (in words Justice Elena Kagan coined in an earlier case) “extra icing on a cake already frosted.” Justice Barrett noted that extending the statute to “every violation of a computer-use policy” would make criminals of “millions of otherwise law-abiding citizens,” offering examples of such trivial conduct as “embellishing on online-dating profile” and “using a pseudonym on Facebook” – activities that violate website use restrictions and thus would fall within the government’s understanding of the CFAA.

There was an interesting liberal-conservative split in the 6-3 decision. The majority included the liberal wing, Justices Sotomayor, Kagan and Breyer, as well as Gorsuch and Kavanaugh, two more conservative Justices. That left Chief Justice John Roberts and conservative Justices Alito and Thomas in the dissent.

Careful textualism in interpreting federal criminal statutes is a good thing. Now, if the Court would only take up aggravated identity theft…

Perhaps less should be made of the “liberal” and “conservative” labels on the Court.

Van Buren v. United States, Case No. 19-783, 2021 U.S. LEXIS 2843 (June 3, 2021)

– Thomas L. Root

Judicial Odds and Ends – Update for June 3, 2021

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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.

AN ANNIVERSARY OF A MYSTERIOUS DEATH… AND A COUPLE OF CASE SHORTS

odetobilliejoe210603We have a couple of notable decisions from last week for this, the traditional day we all commemorate the untimely death by suicide of Billie Joe McAllister, the 1967 first-person ballad sung by Bobbie Gentry. As Bobbie began the song, “It was the third of June, just  sleepy, dusty delta day…”

As The Independent reported in 2017, the reason for Billie Joe’s mythical death remains a mystery: “Fifty years on we’re no wiser as to why Billie Joe did what he did and in the context of the song and Gentry’s intentions, that’s just as it should be.”

Let’s try to demystify some gleanings from last week’s federal appellate decisions:

The Eighth Joins the Party: The 8th Circuit joined other circuits that have ruled on this issue, holding last week that two brothers whose cases involved the distribution of both crack and powder were eligible for the retroactive Fair Sentencing Act reduction authorized by the First Step Act, despite the fact that the powder cocaine in their cases was such that the Fair Sentencing Act did not lower their Guidelines ranges.

The Circuit ruled that Sec 404(a) of the First Step Act says that covered offenses are those whose penalties “were modified by section 2 or 3 of the Fair Sentencing Act.” Their crack penalties were reduced, even if the brothers “ultimately would be subject to the same statutory sentencing range as a consequence of” the powder cocaine. Thus, the sentencing judge now had to decide whether they should be granted a lower sentence.

The Eleventh Goes Its Own Way (Again): A week or so ago, I reported on United States v. Lopez, a 9th Circuit case that interpreted the First Step Act to dramatically expand the application of the drug offense safety valve set out in 18 USC § 3553(f).

goyourownway210603The 11th Circuit (who else) has helpfully provided an opinion going absolutely the opposite direction. Julian Garcon got the safety valve when sentenced for cocaine distribution, because he didn’t meet all three subsections of the law required to be disqualified. The government appealed, arguing that the word “and” in the statute really meant “or.”

Who would be twisted enough to think that? The 11th Circuit, that’s who. The panel held that “based on the text and structure of § 3553(f)(1), the “and” is disjunctive. Accordingly, we vacate the sentence and remand for resentencing…”

Ohio State University law prof Doug Berman said last week in his Sentencing Law and Policy blog that the case “produced a crisp circuit split on the proper interpretation of a key provision of the First Step Act on a matter that impacts many hundreds of federal drug cases every month… It is surely only a matter of time before other circuits weigh in on this important issue, and I assume this split will be deepened in the coming months and that the Supreme Court will have to take cert.”

United States v. Spencer, Case No 19-2685, 2021 U.S. App. LEXIS 15862 (8th Cir, May 27, 2021)

United States v. Garcon, Case No 19-14650, 2021 U.S. App. LEXIS 14683 (11th Cir, May 18, 2021)

Sentencing Law and Policy, In contrast to Ninth Circuit panel, Eleventh Circuit panel gives narrow reading to FIRST-STEP-amended mandatory-minimum safety valve provision (May 27)

– Thomas L. Root

Procedure Talks, Substance Walks – Update for June 1, 2021

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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.

DOES INNOCENCE MATTER? NOT MUCH.

I had a recent email exchange with a guy who, years after his conviction, believes he has the golden bullet to convince his judge that he should be allowed to withdraw his plea. When I pointed out he had no procedural route for raising the argument, given that he’s known about the issue for years, he responded that all he has to do is convince the judge of the righteousness of his claim, and the procedure will take care of itself.

innocent210504But procedure never takes care of itself. That is to say, procedure rules over substance. Years ago, Professor Henry J. Friendly complained that habeas corpus procedure had gotten so hidebound that a petitioner’s claim that he or she was actually innocent simply didn’t matter. The title of the law review article said it all: Is Innocence Irrelevant: Collateral Attack on Criminal Judgments. Even after Friendly’s now-famous 1970 article, the Supreme Court was unable to untether actual innocence from procedure: in Herrera v. Collins, it held that “a claim of ‘actual innocence’ is not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits.  In other words, a prisoner who is actually innocent must show a constitutional violation to obtain relief.  As dissenting Justice Blackmun complained, the only principle this position espouses is “the principle that habeas relief should be denied whenever possible.”

Two cases this week reminded the defendants that the righteousness of their causes paled in significance next to the “angels-on-the-head-of-a-pin” arguments over procedure. In an 11th Circuit case, Sandchase Cody (we’ll call him “Sandy”) initially won his § 2255 motion, having proven to the sentencing court that some of his prior state convictions should not count as Armed Career Criminal Act predicates.

But his victory turned to ashes at resentencing. Initially, Sandy had been sentenced to 294 months for drug distribution and a concurrent 294 months for the ACCA charge. But instead of resentencing on both counts, the judge merely cut his ACCA count to 120 months – the statutory max without the ACCA – keeping the 294 months on the drug count.

angels170726“Unfair!” Sandy cried, apparently laboring under the misappreciation that fairness actually mattered. He appealed, arguing he should have been resentenced on both counts. But because the appeal only challenged the resentencing, not his favorable § 2255 decision, Sandy did not ask for a certificate of appealability (COA). He argued to the 11th Circuit that because he was appealing the new sentence – and not the § 2255 decision vacating the prior sentence – a COA was not necessary.

Background: Under 28 USC § 2253, a prisoner may not appeal a “final order in a proceeding under § 2255” unless a circuit justice or judge issues a certificate of appealability, finding that reasonable judges could debate whether the prisoner’s claim has merit. The intent of the COA procedure is to reduce frivolous appeals, just another way that the Antiterrorism and Effective Death Penalty Act has strangled habeas corpus.

Last week, the 11th Circuit dismissed Sandy’s appeal, holding that the COA requirement applies “not only to an appeal from the final order in a proceeding under section 2255 but also to an appeal from an amended criminal judgment, to the extent it raises section 2255 issues.” By contrast, the Circuit said, direct appeal matters that arise after the § 2255 proceeding — for example, an argument that the district court misapplied the sentencing guidelines at a prisoner’s resentencing — do not require a COA. But Sandy complained in his appeal that § 2255 required he get a complete resentencing, not just a resentencing on one count. That was an argument, the 11th said, over the remedies authorized by § 2255. Thus, it was a § 2255 appeal, and it required a COA.

It seems a trifling point, but procedure prevented his argument from being heard.

In the 6th Circuit, on the other hand, the appeals court ruled that a piece of arcane procedure worked for Edres Montgomery. Edres got resentenced under First Step § 404, the retroactive Fair Sentencing Act. But at resentencing, everyone – including Edres’s lawyer – assumed Edres’s Criminal History range was VI (that’s “6” for the Latin-challenged among us).

But it was only a V (that’s a “5”), Edres discovered afterward, so he appealed. The government argued Edres waived his right to appeal it by not objecting at sentencing. This gave the 6th a chance to expound on waiver, forfeiture, and invited error.

A “defendant can only waive a right that he knows of and actively abandons,” the 6th said. When a claim is waived, it is unappealable. “Forfeiture is at the other end of the spectrum… the passive failure to make a timely assertion of a right.” If a defendant forfeits a claim, “Federal Rule of Criminal Procedure 52(b) allows us to consider such unpreserved arguments for plain error.”

errorA160425In the middle is “invited error”, where the defendant contributes in some way to the district court’s error without intentionally relinquishing his rights. Here, Edres invited the error when his own lawyer agreed Edres’s Criminal History was VI. This left Edres “more responsible for the district court’s error than when he merely forfeits an argument, but he had not made the conscious choice to waive the argument.” Thus the appeals court said, “the consequences fall in between those for forfeiture and waiver… [and while] we do not review invited errors as a matter of course, but we are also not foreclosed from reviewing them; instead, we review for plain error when “the interests of justice demand” it.

The Court said that under a Rule 52 “plain error” analysis, the mistake should be corrected.

United States v. Cody, Case No. 19-11915, 2021 U.S. App. LEXIS 16019 (11th Cir. May 28, 2021)

United States v. Montgomery, Case No. 20-1201, 2021 U.S. App. LEXIS 15382 (6th Cir. May 24, 2021)
– Thomas L. Root

Senate Judiciary Committee: A Win, A Tie and A Rain Delay – Update for May 28, 2021

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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.

AN ONLY PARTLY SATISFYING DAY AT THE JUDICIARY COMMITTEE

The Senate Judiciary Committee considered three criminal justice reform bills yesterday, with results that were a little heartening, a little disheartening.
heartening210528The Committee approved the COVID-19 Safer Detention Act, S.312, 14-8. The bill now goes to the full Senate. The vote came despite the strenuous objections of Sen. Tom Cotton (R-Arkansas), who claimed that the bill would let dangerous criminals out on the street to violently accost fair maidens (or that’s how he sounded). Cotton didn’t cotton to approving something with “COVID-19” in the title, when BOP Director Michael Carvajal assured the Committee last month that by May 15th, every BOP inmate that wanted the vaccine would have received it.

That the BOP did not meet its deadline two weeks ago had little meaning. In fact, at 23 facilities – including some camps – fewer than 300 inmates had gotten the vaccine as of May 14. FPC Alderson, according to BOP records, had only 57 inmates vaccinated. While it’s possible that fewer than 10% of Alderson’s 622 inmates (all female) agreed to take the vaccine, but that’s pretty unlikely.

cotton171226Cotton tried to amend the bill so that it would apply only to inmates who had not been vaccinated for medical reasons approved by the BOP. That amendment failed.

An amendment that was approved, however, struck the bill’s proposed age reduction from 60 to 50. As amended, an elderly offender still must be 60, but he or she need only serve two-thirds of the statutory sentence (the total sentence minus good conduct time). It also adds judicial review for denial of elderly offender home detention, cuts the period for administrative exhaustion for compassionate release. Finally, during the pandemic, any defendant considered to be at a higher risk for severe illness from COVID–19, including because the defendant is 60 years of age or older or has an underlying medical condition, would by definition “an extraordinary and compelling reason” under 18 USC 3582(c)(1)(A)(i) for compassionate release.

Committee Chair Sen. Richard Durbin, D-Ill., who sponsored the proposed legislation, told the committee before the bill’s passage that the pandemic has shown that the BOP can’t be trusted to identify and release prisoners who are vulnerable to the coronavirus.

fail200526“The Bureau of Prisons failed,” Durbin said, noting that nearly 31,000 inmates requested compassionate release during the pandemic and the Bureau of Prisons approved only 36, fewer requests than it approved in 2019, before the pandemic. Durbin said that 35 federal inmates died while waiting for the BOP to rule on their requests.

The Committee began debating the Prohibiting Punishment of Acquitted Conduct Act of 2021 (S. 601). That bill would prohibit judges from considering conduct underlying an acquitted count in sentencing. Predictably, Cotton opposed that as well, but concerns were also expressed by Sen. John Cornyn (R-Texas) and Sheldon Whitehouse (D-Rhode Island).

Cornyn said that judges should be allowed to consider acquitted offenses in some cases, giving the example of a sexual offender who has repeatedly abused a victim and has some charges dropped because they are based on abuse that happened too long ago to be prosecuted. He apparently did not distinguish between dropped charges and charges a jury refused to convict on.

“There are circumstances that would endure to the benefit of a guilty criminal defendant and violate the rights of crime victims to be heard as provided by law,” Cornyn said.

Whitehouse, a former prosecutor, argued that judges should not have their hands tied at sentencing because some technical reason prevented conviction for conduct that clearly occurred. Sen. Amy Klobuchar (D-Minnesota), another former prosecutor, supported the measure.

Durbin decided to hold further consideration on S.601 to incorporate amendments.

disheartening210528The Committee adjourned for a Senate roll-call vote, and thus did not start discussing the First Step Implementation Act of 2021 (S. 1014), the star of the day’s hearing. This is the most consequential of pending bills, one which would grant judges the option to apply the 18 USC 3553(f) safety valve to a larger number of drug offenders and – most significant – make the reductions in mandatory minimums for drug and gun offenses granted in § 401 and 403 of the First Step Act retroactive.

The Committee should be taking up the First Step Implementation Act of 2021 soon. That is heartening.

Senate Committee on the Judiciary, Executive Business Meeting (May 27)

– Thomas L. Root

Good, Bad… But Not Indifferent – Update for May 27, 2021

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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.

EITHER GOOD OR BAD

Maybe you’ve noticed our good-and-bad theme this week. Here are some shorts:

thumbsup210526Good: The DC Circuit last week joined seven other circuits in holding that Guideline 1B1.13 does not limit compassionate release motions when those motions are brought by prisoners instead of the BOP.

The Circuit just joins seven other circuits since last September to so hold.  Only the 11th Circuit disagrees.

United States v. Long, Case No 20-3064, 2021 U.S. App. LEXIS 14682 (DC Cir., May 18, 2021)

thumbsdown210526Bad: The two Federal Bureau of Prisons Correctional Officerss who were supposed to be watching Jeffrey Epstein, later charged for lying to investigators and phonying up records to hide the fact they were cruising the Web instead, last week entered guilty pleas in the U.S. District Court for the Southern District of New York under deferred prosecution deals that will cost them 100 hours of community service but no prison time.

Forbes, Federal Prison Guards Admit To Filing False Records During Jeffrey Epstein’s Suicide (May 21, 2021)

thumbsup210526Good: Senators Amy Klobuchar (D-Minnesota and John Cornyn (R-Texas), and House Reps. Karen Bass (D-California) and Guy Reschenthaler (R-Pennsylvania) introduced the One Stop Shop Community Reentry Program Act last week, a bill that would set up reentry centers to help coordinate access to job training, medical and mental health services, and financial counseling. The centers would also help individuals land jobs, gain job-skill training, obtain driver’s licenses, fill out college and student loan applications and receive financial counseling.

The bill passed the House in the last session of Congress, but never came to a vote in the Senate.

NPR, Congress Wants To Set Up One-Stop Shops To Help Ex-Inmates Stay Out Of Prison (May 20, 2021)

thumbsdown210526Bad:  Dr. Homer Venters, an epidemiologist tasked by a federal court with inspecting FCC Lompoc reported last week that the facility has “an alarmingly low vaccination acceptance rate among the inmate population,” due to prison staff neglecting to address inmates’ “very valid and predictable concerns” about the effects the vaccine might have on their underlying health conditions.

Rather than address inmate fears, Venters said, prison staff dismissively told the inmates to either “take the vaccine or sign a refusal form.” He reported to the Court that “many of the people who reported refusing the vaccine told me they were willing to take it but simply had questions about their own health status.”

“The approach of BOP Lompoc not only fails to engage with patients; it has a paradoxical effect of creating a pool of extremely high-risk unvaccinated patients,” he wrote. “In other detention settings I have worked in, a COVID-19 refusal by a high-risk patient would result in a prompt session with a physician or mid-level provider because the consequences of infection are so grave.”

Santa Barbara Independent, Doctor ‘Extremely Concerned’ About Low Vaccination Rate Among Lompoc Prisoners (May 20)

– Thomas L. Root

Biden to Ask Fox To Advise on Emptying Henhouse – Update for May 26, 2021

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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.

GOOD AND BAD NEWS ON CLEMENCY

clemencypitch180716The New York Times reported last week that Biden Administration officials have begun evaluating clemency requests and have let activists know that President Biden may start issuing pardons or commutations.

That’s the good news. The bad news is that White House officials have indicated privately that it is working with the Department of Justice’s Office of the Pardon Attorney to process clemency requests with the intent of issuing some clemencies the president sign some before the 2022 midterm elections in. The White House has indicated that it will rely on the rigorous application vetting process overseen by the OPA, an office that most clemency advocates see as an impediment to clemency, not a facilitator.

henhouse180307Several pretty influential commentators, including NYU law prof and former Sentencing Commission member Rachel Barkow, have urged White House officials to consider moving the clemency process out of DOJ, “noting the paradox of entrusting an agency that led prosecutions with determining whether the targets of those prosecutions deserve mercy,” as The Times put it. But the Biden administration is not inclined to circumvent the OPA, according to the paper, instead following the approach adopted by President Barack Obama, who issued more than 1,900 clemency grants, mostly to people recommended by the DOJ and who had been serving drug trafficking sentences.

Biden’s team has hinted it is establishing a deliberate, systemic process geared toward identifying entire classes of people who deserve mercy. The approach could allow the president to make good on his campaign promise to use his authority to address racial equity. Given that 70% of federal prisoners are nonwhite, and 48% of all inmates are convicted of drug offenses, a focus on racial equity could have substantial impact.

pardon160321An April push by the National Council for Incarcerated and Formerly Incarcerated Women and Girls, called on Biden to grant pardons or to commute the sentences for 100 women during his first 100 days of office. Nothing came of it.

As of May 10, there were 3,211 pardon and 11,804 clemency petitions pending, according to DOJ statistics. Of those, 14 pardons and 461 clemency petitions were “closed without presidential action.”

New York Times, Biden Is Developing a Pardon Process With a Focus on Racial Justice (May 17)

US Sentencing Commission, Quick Facts – Offenders in Federal Prison (March 2021)

CNN, Advocates push for Biden to use his executive powers to grant clemency for hundreds of women in federal prisons (May 19)

DOJ, Clemency Statistics (May 23)

– Thomas L. Root

That ‘Teague’ Thing? We Were Just Kidding – Update for May 25, 2021

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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.

BAD (BUT UNSURPRISING) NEWS ON RETROACTIVITY

sadprison210525How would you like to be convicted of a federal crime with a long sentence, only to have the Supreme Court hold well after the fact that something about your trial was unconstitutional? How would you like that?

That’s an easy one. You would not like to be convicted.  Period. Whether it was done constitutionally or not. No one wants to be convicted. So that was a stupid question.

But over 50,000 people are convicted of federal crimes every year. And they don’t like it, either. They like it even less if, say, if the government grabbed your cellphone location data without a warrant, or you were convicted by a jury vote of 9-2, or the judge jacked up your statutory minimum because he thought your revolver was really a machine gun.

All of those were deemed to be unconstitutional.  The cellphone location data? Carpenter v. United States, 2018. Less-than-unanimous jury? Ramos v. Louisiana, 2020. A nonjury finding jacking your mandatory minimum? Alleyne v. United States, 2013.

The problem is that if your conviction was final before these decisions established that you were constitutionally wronged, you have no right to ask the court for a do-over. That is not unless the decisions are declared to be retroactive, which means that cases like yours that are already final may reopen the issues on collateral review (habeas corpus).

watershed210525Thirty-two years ago, the Supreme Court explained in Teague v. Lane that decisions holding substantive criminal laws to be unconstitutional (such as the Armed Career Criminal Act residual clause in Johnson v. United States) are always retroactive to cases on § 2255 review. However, Teague held, a case in which a criminal procedure was declared unconstitutional (like searches in Carpenter or a less-than-unanimous jury in Ramos) is only retroactive on habeas review only if the new rule was “watershed,” “bedrock” or “essential.”

So what kind of ruling would be “watershed?” Prisoners and defense attorneys have looked for that elusive “watershed” decision for three decades without success. Last week, the Supreme Court heard a case asking whether last year’s Ramos rule on unanimous juries had to be unanimous (a holding which affected Louisiana and Oregon only) was retroactive. The Court ruled 6-3 that Ramos was not a “watershed” rule. More important, the Court gave up pretending that anything could ever be a “watershed” rule.

“This Court has repeatedly stated that a decision announcing a new rule of criminal procedure ordinarily does not apply retroactively on federal collateral review,” Justice Kavanaugh wrote for the majority. “Indeed, in the 32 years since Teague underscored that principle, this Court has announced many important new rules of criminal procedure. But the Court has not applied any of those new rules retroactively on federal collateral review… And for decades before Teague, the Court also regularly declined to apply new rules retroactively, including on federal collateral review… At this point, some 32 years after Teague, we think the only candid answer is that… no new rules of criminal procedure can satisfy the watershed exception. We cannot responsibly continue to suggest otherwise to litigants and courts… It is time — probably long past time — to make explicit what has become increasingly apparent to bench and bar over the last 32 years: New procedural rules do not apply retroactively on federal collateral review. The watershed exception is moribund.”

squarepeg210525So prisoners, at last, can give up trying to pound round constitutional procedure decisions into Teague’s square holes. The Supreme Court has said what a lot of us suspected ever since Apprendi was declared non-retroactive. Teague’s promise is now and always has been an illusion: there simply are no watershed decisions.

Edwards v. Vannoy, Case No 19-5807, 2021 US LEXIS 2584 (May 17, 2021)

– Thomas L. Root

It Depends on What the Meaning of ‘And’ Is – Update for May 24, 2021

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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.

GOOD NEWS FROM CONJUNCTION JUNCTION

conjunction210524The “safety valve” in 18 USC § 3553(f) allows a district court to sentence a drug defendant below an otherwise mandatory-minimum sentence if he or she meets certain criteria – such as the offense having no gun or violence, the defendant not being a leader in the offense, and the defendant truthfully admitting his or her role in the offense. But the first criterion has always been the tough one, that the defendant’s criminal history score could be no higher than one, a requirement that disqualified everyone but the most virginal of miscreants.

Congress changed all of that in the First Step Act. In expanding the number of people covered by the safety valve, Congress wrote that a defendant now must only show that he or she “does not have… (A) more than 4 criminal history points… (B) a prior 3-point offense… and (C) a prior 2-point violent offense.”

The “safety valve” was one of the only sensible things to come out of the Violent Crime Control and Law Enforcement Act of 1994, the bill championed by then-Senator Joe Biden that, a quarter-century later, has been used to brand him a mass-incarcerating racist.  The safety valve was intended to let people convicted of drug offenses as first-timers avoid the crushing mandatory minimum sentences that Congress had imposed on just about all drug dealing.

Eric Lopez got caught smuggling meth across the border. Everyone agreed he qualified for the safety valve except for his criminal history. Eric had one prior 3-point offense, and the government argued that was enough to disqualify him. Eric argued that the First Step Act amendment to the “safety valve” meant he had to have all three predicates: more than 4 points, one 3-point prior, and one 2-point prior violent offense.

andor210524Remember the fun that the media had when Bill Clinton famously dodged a deposition question by saying, “It depends on what the meaning of ‘is’ is?” That’s not so funny in the world of statutory construction. In Eric’s case, the government was contending that the First Step amendment meant that if a defendant had any one of the listed conditions – more than 4 points total, at least one 3-point prior, or at least one 2-point prior violent offense – he or she could not get the safety valve. In other words, the government was arguing that “and” means “or.” The district court, however, agreed with Eric that the conjunction “and” means “and.”

Last week, the 9th Circuit agreed. In a decision that dramatically expands the reach of the safety valve, the Circuit applied the rules of statutory construction and held that the First Step amendment was unambiguous. “Put another way, we hold that ‘and’ means ‘and.’”

The government argued that such an interpretation could lead to crazy results (by which it meant “pro-defendant” results, no doubt). The 9th was unswayed:

“We recognize that § 3553(f)(1)’s plain and unambiguous language might be viewed as a considerable departure from the prior version of § 3553(f)(1), which barred any defendant from safety-valve relief if he or she had more than one criminal-history point under the Sentencing Guidelines… As a result, § 3553(f)(1)’s plain and unambiguous language could possibly result in more defendants receiving safety-valve relief than some in Congress anticipated… But sometimes Congress uses words that reach further than some members of Congress may have expected… We cannot ignore Congress’s plain and unambiguous language just because a statute might reach further than some in Congress expected… Section 3553(f)(1)’s plain and unambiguous language, the Senate’s own legislative drafting manual, § 3553(f)(1)’s structure as a conjunctive negative proof, and the canon of consistent usage result in only one plausible reading of § 3553(f)(1)’s “and” here: “And” is conjunctive. If Congress meant § 3553(f)(1)’s “and” to mean “or,” it has the authority to amend the statute accordingly. We do not.”

angels170726It’s pretty clear that this is an example of bad draftsmanship, an amendment that gives defendants much more than the Senate intended. But that’s irrelevant. For very good reason, when the text of a statute says something plainly, courts will not check it against the legislative history to determine whether what it says is consistent with legislative intent.  It may seem to some that statutory interpretation debate has an “angels on the head of a pin” quality to it, but reading statutes to mean what they say rather than what the courts wish they said or what the legislators might have said had they been more careful is vital to avoiding judicial mischief.

This decision could be huge for a lot of people sentenced to drug offenses after the effective date of the First Step Act in December 2018.

United States v. Lopez, Case No. 19-50305, 2021 U.S. App. LEXIS 15184 (9th Cir. May 21, 2021)

Sentencing Law & Policy, Ninth Circuit panel interprets FIRST STEP amendment to statutory safety valve to greatly expand who can avoid federal mandatory-minimum sentences (May 22)

– Thomas L. Root

Fascinating District Court Use of Compassionate Release to Correct Sentencing Error – Update for May 21, 2021

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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.

DISTRICT COURT GRANTS COMPASSIONATE RELEASE DUE TO SENTENCING ERRORS

There’s a precedential pecking order that few do-it-yourselfer prisoner litigants appreciate.

coffee210521It’s easy… a Supreme Court decision binds every lower federal court in America. A “published” decision of a federal court of appeals (and “published” means the court declares it to be published, not just that you can find a copy of it on the Internet) binds every district court in that particular circuit. But the opinion of a district court only binds the parties to the action. If the Chief Judge of the Federal District Court for the Eastern District of Northern South Dakota rules that red is really green, the judge in the office next to hers is nonetheless entitled to rule the next day in a different case that red is more blue than green.

So district court decisions ultimately are sometimes interesting, sometimes illuminating, occasionally infuriating and usually boring, but whatever they might be, $5.00 and the combined output of the best district court in America will get you a Strawberry Funnel Cake Frappuccino at Starbucks, but little else.

oracle210521That doesn’t stop prisoners, many of whom breathlessly cite opinions from some knuckleheaded district court a thousand miles away like they are the immutable words of the oracle descended from Mt. Olympus.

But while district court decisions are not binding precedent, they can be what lawyers like to call “persuasive authority.” That kind of authority says to a district court, ‘look how smart Judge Elihu Smails held in this similar case, and don’t you want to look as bright as he does?’ Sometimes that kind of persuasion works, sometimes it doesn’t.

With that prologue, we were impressed with a decision handed down last week by a judge in the District of Massachusetts, granting compassionate release to a man doing life for a 1991 bombing that killed one cop and injured another.

The movant had discovered an error many years after his conviction which made the life sentence unlawful. He filed a motion with the District Court back in 2007 pointing out the error, and the sentencing court granted him relief. Unfortunately for the defendant, the First Circuit reversed the district court on procedural grounds, specifically that the prisoner had no right to bring what was in effect a second 28 USC § 2255, so the sentencing error was unreviewable.

The prisoner tried again 13 years with a motion for compassionate release under 18 USC § 3582(c)(1)(A)(i).  The motion turned on the prevalence of COVID-19 at USP Tucson and the 65-year old prisoner’s vulnerability to it, but as well raised arguments that the conviction and sentence were tainted by the government having played on the homophobia of the jury, and the sentencing error that was argued futilely in 2007.

The district court rejected the COVID-19 argument due to the fact that the prisoner had received the vaccine, and it characterized the evidence of innocence and homophobia as “serious but not overwhelming arguments” that “raise questions and perhaps even doubts – but no more.”

But the court was convinced by the sentencing error. It rejected the government’s argument that the First Circuit had already settled the issue:

The First Circuit’s holding was premised upon a strict application of AEDPA… But now Congress has spoken again. And this time it has given trial judges broad authority – indeed it has imposed a statutory duty, upon a defendant’s motion – to conduct an individualized review of the defendant’s case for extraordinary and compelling circumstances that call out for correction… Moreover, at the time of this writing, there is a growing consensus among courts that there are few if any limitations on what may be considered an extraordinary and compelling reason warranting release, even those claims that have been rejected on direct appeal or collateral attack.

compassion160208The district court used compassionate release to do what it could not do in a § 2255 motion: it ruled that “it is both extraordinary and compelling that (1) a judge sentenced a defendant to life imprisonment using a preponderance of the evidence standard where the controlling statute provided that a life sentence could be imposed only by the jury; and (2) there exists no available avenue for relief from this legal error.”

The court ruled that there was “no question that this Court may conclude that a legal error at sentencing constitutes an extraordinary and compelling reason, and reduce the sentence after conducting an individualized review of the case. Here, the Court is deploying the broad discretion provided in one statute – § 3582(c)(1)(A) – to effectuate Congress’s clearly stated intent in a separate statute, see 18 USC § 34, as incorporated by 18 USC § 844.”

United States v. Trenkler, Case No 92-10369, 2021 U.S. Dist. LEXIS 87567 (D. Mass. May 6, 2021)

– Thomas L. Root