All posts by lisa-legalinfo

SCOTUS Skeptical About Fugitive Tolling of Supervised Release – Update for November 10, 2025

Leave a comment

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

THE FUGITIVE

The Supreme Court heard oral argument last week on whether people who flee from supervised release can claim that the term of their supervised release nevertheless continued and expired while they were a fugitive. If the term of supervision can expire while a defendant is a fugitive, and a doctrine called fugitive tolling does not apply to prevent that expiration, then a court could not revoke supervised release for violations of the conditions of supervision after the term’s expiration.

[Explainer:  Supervised release is a period after the defendant is released from prison during which he or she is subject to the supervision of a probation officer and must comply with a long list of standard and special conditions. Violation of the terms of supervised release may result in the imposition of more restrictions, the lengthening of the supervised release term, or even being sent back to prison].

The doctrine, called fugitive tolling, suspends the running of supervised release while the defendant is on the lam. Without fugitive tolling, a district court would lack the authority to revoke supervised release for violations that weren’t charged until after the term of supervision ended.

The justices struggled with how the Dept of Justice scenario aligned with the law and congressional intent over federal court jurisdiction and sentencing on such matters.

The underlying issue stems from the case of Isabel Rico. She lost touch with her probation officer during her 4-year supervised-release term stemming from a drug trafficking conviction, who decided that she had absconded. While she was out of touch, she was convicted by state authorities for evading the police, driving without a license and possessing drug paraphernalia.

She wasn’t arrested until well after the expiration of her supervised release term. The government charged her with two minor violations that occurred during her term, as well as for committing the crimes of evading, no license and drug paraphernalia (which occurred after her supervised release term ended). Isabel objected that the district court lacked jurisdiction to consider the 2022 drug-related offense as a supervised-release violation because her term of supervised release had expired in June 2021.

The government responded that the clock on Isabel’s supervised release term was paused when she absconded in May 2018, with about three years remaining, and did not resume until she was apprehended in January 2023 – meaning that she remained on supervised release when she committed the 2022 state offenses. Isabel argued that the “fugitive tolling” doctrine on which the government relied was inapplicable in the context of supervised release.

It was a big deal because the only violations she committed during the original supervised release term were low-grade ones carrying minor penalties. The 2022 violations were Grade A, however, carrying stiffer punishment under the Sentencing Guidelines.

At the oral argument, Justice Neil Gorsuch observed that the government has already gone to Congress in an effort to amend a section of the Sentencing Reform Act dealing with a violation of supervised release. “Congress has proven pretty solicitous in this area,” he said. But Congress never adopted any fugitive tolling provision, meaning that the government is now asking the Supreme Court to create one. “And the alternative is for us to create a fugitive tolling doctrine pretty [much out of] whole cloth… And so we’re going to have to come up with a whole common law doctrine here to supplement what [the law] already says.”

Justices Ketanji Brown Jackson and Sonia Sotomayor questioned whether the government’s theory of abscondment amounted to extending a period of punishment. “The traditional tolling is that the clock stops with respect to the obligation when you run away, and it picks up again when you’re found again,” Jackson said. “So it seems to me that what you’re actually asking for is an extension rule.”

Fugitive tolling is shaped by one central statutory provision, 18 USC 3583(i), which holds that if a court issues a warrant for a supervised release violation before the term expires, the court will continue to have jurisdiction to revoke supervision and impose punishment for those violations. Thus, if a defendant becomes a fugitive while on supervised release, and the probation officer files a petition to revoke before the term ends, fugitive tolling is unnecessary to revoke the defendant’s term of supervision.

Section 3583(i) gives the court authority to revoke supervision if the defendant becomes a fugitive. A court would not have to rely on any further conduct by the defendant, such as the commission of a new crime, to revoke supervised release. And when the court turns to the appropriate sentence for the revocation, it could simply take into account all of the defendant’s conduct, including new crimes committed after the expiration of the term of supervised release.

The case will be decided by the end of June 2026.

SCOTUSBlog, Court leans against applying fugitive tolling in federal supervised release (Nov 5, 2025)

Bloomberg Law, US Supreme Court Struggles With Dispute Over Supervised Release (Nov 3, 2025)

Rico v United States, Case No 24-1056 (argument held Nov 3, 2025)

~ Thomas L. Root

3rd Circuit Gives Amateur Inmate Litigant a Mulligan – Update for November 7, 2025

Leave a comment

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

DO-OVER

Thomas Petoff, a federal prisoner confined to a wheelchair, filed an administrative remedy after he was denied a wheelchair cushion. He said that in retaliation, he was thrown in the Special Housing Unit (SHU), had his wheelchair confiscated, suffered assaults and humiliating treatment, was denied food (including his “religious diet”), medical care, recreation, and law library access, and ultimately lost good-time credits and was fined. He sued.

He threw every claim the jailhouse lawyers in the prison library told him to throw at the defendant. It was a hodgepodge of high-falutin’ legalese used by someone who had no idea what he was doing.

The district court construed Tom’s pro se complaint as raising 1st, 5th, and 8th Amendment claims under Bivens v Six Unknown Named Agents of the Federal Bureau of Narcotics. That wasn’t enough to keep the case from being dismissed with prejudice. For good measure, the Court said Tom’s complaint was barred by Heck v. Humphrey to the extent that his claims undermined disciplinary sanctions.

It was kind of a ‘get out and don’t come back’ dismissal.

Last week, the 3rd Circuit largely agreed on the Bivens and Heck analyses, but held that pro se litigants must be given an opportunity to amend to pursue non-futile statutory theories—here, the Rehabilitation Act and Religious Freedom Restoration Act.

As for the Bivens claim, the Circuit ruled that Tom’s allegations failed in light of the Supreme Court’s decision last summer in Goldey v. Fields, that foreclosed Bivens actions for 8th Amendment excessive force claims.

To the extent that Tom’s claims might call into question the validity of the disciplinary proceeding findings that he had violated prison rules, the 3rd said those claims are barred by the Heck v. Humphrey favorable-termination rule. That rule holds that to recover damages for an allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged, declared invalid by a state court, or called into question by a federal court on habeas corpus.

However, the Circuit said, Tom got a mulligan on some of his claims. The 3rd said that the district court failed to address Tom’s Americans with Disabilities Act (ADA) and Rehabilitation Act claim, as well as his later-clarified RFRA “religious diet” claim. Although Tom did not plead those claims very well, the 3rd said that an amendment cleaning up those claims would not necessarily have been futile. It remanded Tom’s suit to the district court to give him a fair chance to amend.

Petoff v. Delmonico, Case No. 24-2933, 2025 U.S.App. LEXIS 27737 (3d Cir. October 23, 2025)

~ Thomas L. Root

News From Here And There – Update for November 6, 2025

Leave a comment

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

FEDERAL SHORTS

Bang, Bang: Remember the Bureau of Prisons correction officer who pursued a suspicious BMW parked at MDC Brooklyn through city streets back in September 2023, finally opening fire on the fleeing car at the foot of Brooklyn Bridge (and hitting one of the malefactors in the back)?

Last week, the officer, Leon Wilson, was convicted in U.S. District Court for the Eastern District of New York of depriving the man he shot of his civil rights, as well as an 18 USC § 924(c) offense for using a gun in a crime of violence.

Wilson, who had no arrest authority except on MDC property, faces a mandatory 10-year sentence for the § 924(c) violation.

The New York Times reported that, “Outside the courtroom after the verdict, Mr. Wilson was emotional. He said he had not reported the incident because he was “traumatized,” and that he thought someone had escaped from the jail.”

The people in the car were trying to drop off cigarettes and cellphones to be smuggled into the facility.

New York Times, Guard is Convicted of Pursuing Jail Smugglers and Firing at Them (October 28, 2025)

Do As We Say, Not As We Do: Federal judges have excoriated and fined lawyers for filing AI-generated motions and briefs full of false quotations and case citations.

Now, the Senate Judiciary Committee is taking aim at judges who do the same.

Two federal judges in New Jersey and Mississippi admitted last month that their offices used artificial intelligence to draft factually inaccurate court documents that included fake quotes, mangled facts and even fictional litigants — drawing a rebuke from the head of the Senate Judiciary Committee.

“I’ve never seen or heard of anything like this from any federal court,” Sen Charles Grassley (R-Iowa), chairman of the Judiciary Committee, said in a Senate floor speech last week.

The Committee revealed the week before that Judge Henry T. Wingate of the Southern District of Mississippi and Julien X. Neals of the District of New Jersey admitted that their offices used AI in preparing the mistake-laden filings in the summer.  In true form, the judges blamed someone else, attributing the mistakes to a law clerk and a law school intern, respectively.

Grassley demanded that courts establish rules on AI use in litigation. “I call on every judge in America to take this issue seriously and formalize measures to prevent the misuse of artificial intelligence in their chambers,” he said.

Washington Post, Federal Judges Using AI Filed Court Orders with False Quotes, Fake Names (October 29, 2025)

Beaten Inmate Gets Paid:  A federal judge last week found that an incarcerated, self-represented Florence ADX prisoner should be compensated $10,000 by the government for a BOP prison guard’s unwarranted use of force.

After a five-day bench trial in which the inmate represented himself on his Federal Tort Claims Act complaint, Senior District Court Judge R. Brooke Jackson determined the prisoner had successfully proven one of his three battery claims, that he was slammed into a wall by the officer in a 2018 incident, suffering psychological damage from the encounter.

Being slammed into a wall “has had a profound and lasting negative impact on him. In 18 years prior to the incident in (prison) custody, Mr. Mohamed had no suicide risk assessments; since this incident, he has had 12,” Jackson found in his October 24 order.

The Court noted in a wry aside that the prisoner’s administrative remedies filed for loss of his property did “not settle the matter. Instead, they show [the inmate] and the BOP talking past one another,” a sensation that is all too common in the administrative remedy process.

Colorado Politics, Federal Judge Awards $10,000 to Supermax Prisoner For Guard’s Use of Force (October 29, 2025)

Mohamed v United States, Case No. 1:20-cv-2516, 2025 U.S. Dist. LEXIS 210451 (D. Colo. October, 24, 2025)

Homeland Security Behaving Badly: A couple of federal agents for Homeland Security wound up on the wrong side of the courtroom last week.

In Utah, DHS agent, Nicholas Kindle, an expert on the synthetic drug bath salts was sentenced to 60 months last week for selling the drug while on the job in Salt Lake City.

Before he was sentenced October 22, Nick’s defense attorney argued the sentence should be reduced to reflect his willingness to cooperate with the FBI. He asked for a below-Guidelines 33-month sentence.

Meanwhile, in Minneapolis, former DHS Timothy Gregg pled guilty last Wednesday to production of child pornography after producing videos of his sexual abuse of a 17-year-old.

Gregg testified he thought she was 19, but he later admitted that he had looked her up on a DHS law enforcement database and learned she was 17.

Gregg is the third Minnesota-based law enforcement officer charged with creating or possessing child sex abuse material this year.

Salt Lake City Tribune, A Utah federal agent and bath salts expert is headed to prison for selling the drug. Here’s how long he’ll serve. (October 29, 2025)

Minnesota Public Radio News, Ex federal agent admits guilt in child sex abuse case as attorney recounts harrowing surrender (October 30, 2025)

~ Thomas L. Root

The Wacky World of Federal ‘Violence’ – Update for November 4, 2025

Leave a comment

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

HOW VIOLENT IS KIDNAPPING?

In a world where people wearing blowup costumes holding signs are violent anarchists while others smashing the doors of the Capitol are peaceful tourists, it was perhaps inevitable that a federal court would hold that kidnapping a family of four, zip-tying the parents and holding a gun to a 3-year-old girl’s head in order to find out where the family money was hidden, is not a categorical crime of violence.

This is the latest in a decade-plus saga of Killiu Ford. Killiu is perhaps pronounced “kill you,” an unfortunately apt name for the defendant. As noted, Killiu and his co-defendants abducted a family at gunpoint, robbing them of $30,000.

The district court sentenced Killiu to 600 months in prison, 216 months for two counts of kidnapping the parents, 300 months consecutive for two counts of kidnapping the kids, and 84 months on an 18 USC § 924(c) firearm conviction, consecutive to the other sentences. Later, the government conceded that the § 924(c) conviction had to be vacated because kidnapping was not a violent crime under the statute. The 10th Circuit remanded Killiu ‘s case for resentencing.

On remand, the district court reduced Killiu’s 600-month sentence by 84 months, down to 516 months in prison. But the judge said Killiu deserved a bigger reduction due to his significant rehabilitation during the 12 years he had already spent in prison. But the prosecutor argued that the court was obligated under 18 USC § 3559(f)(2) to impose a mandatory minimum 25-year sentence for each of the two kidnapping convictions involving the children.

Killiu argued that the district court was not obligated to impose mandatory-minimum 25-year sentences and requested instead a downward variance to 240 months.

The district court ruled that § 3559(f)(2) required a mandatory minimum 25-year (300-month) sentence for each of the kidnapping convictions involving the children. In light of that, the court imposed a 300-month sentence for each of Killiu ‘s remaining five convictions, all to run concurrently.

Under § 3559(f)(2), someone convicted of a crime of violence that is kidnapping as defined by the federal kidnapping statute, 18 USC § 1201, shall “be imprisoned for life or any term of years not less than 25.” But § 1201 does not define “crime of violence.” The 10th Circuit concluded that when § 1201 was passed, 18 USC § 16(a) – which defines “crime of violence” – was already on the books. The fact that Congress did not separately define “crime of violence” in § 3559(f) suggests that it was satisfied with the § 16(a) definition.

Using that definition, the 10th Circuit said, “courts have consistently found that a person can commit kidnapping without the use, attempted use, or threatened use of force. For example, a person can commit kidnapping by inveigling—that is, luring, or enticing, or leading the person astray by false representations or promises, or other deceitful means… [B]ecause kidnapping can be committed by “inveigling,” a kidnapping offense does not categorically have as an element the use, attempted use, or threatened use of physical force against the person or property of another.

Killiu’s case was remanded for resentencing.

United States v. Ford, Case No. 23-1400, 2025 U.S. App. LEXIS 28174 (10th Cir. October 28, 2025)

~ Thomas L. Root

A New November… Same Old Laws – Update for November 3, 2025

Leave a comment

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

NOVEMBER 1ST IS HERE… SO WHAT?

Quick quiz: What new laws benefitting inmates became effective on November 1st?

If you said ‘none,’ you win. Any other guess means you lose. If you said the ‘65% law went into effect,’ go to the back of the class.

In a few weeks, I will have been writing this newsletter every week for 10 years. And for the past 10 years, I have been waging a lonely campaign to stamp out the never-ending myth that Congress just passed (or is about to pass) a law that says that some or all federal offenders will only have to serve 65% of their sentences.

So I again repeat myself. There is NO 65% bill, 65% law or 65% anything. There is NO proposal to cut federal sentences so that everyone will only serve 65% of his or her time. There is NO bill, law, NO directive from Trump, and NO anything else that will give inmates extra time off because things were so bad during COVID.

Nothing. Nada. Zilch. Bupkis.

The genesis of the pernicious 65% rumor is a longing for the bad old days of parole, where federal prisoners served between one-third and two-thirds of their sentences. People seem to think that if parole – abolished in the Sentencing Reform Act of 1985 – only came back, that means that prisoners would only serve two-thirds of their current Sentencing Guidelines sentences. But back then, there were no Guidelines sentences. Courts would just hand out statutory sentences of 5 years, 10 years, 20 years, or whatever. The U.S. Parole Commission would then apply its own guidelines to determine where – between one-third and two-thirds of that time – you’d actually be locked up.

So that meant on a sentence with a statutory range of zero to five years, the court would usually give you five years. You would serve between 20 months and 40 months, but you wouldn’t know how long you’d serve until you finally had your parole hearing (in front of a board of non-judges who were notoriously pro-prosecution).

The Sentencing Guidelines moved that analysis to the front of the sentencing process and applied standards that were much more detailed and subject to due process protections.  The parole hearing process was opaque and – while it could be challenged with a 28 USC § 2241 habeas petition – was nearly bulletproof. I have seen both systems, and for all of its shortcomings, the Sentencing Guidelines are better for prisoners by an order of magnitude.

The 65% rumor gained legs because the late Rep. Sheila Jackson-Lee (D-TX) introduced a bill in every Congress since 2003 (except for the 116th in 2019) to increase 18 USC § 3624(b) good time from 15% to 35% for nonviolent offenders. None of those bills ever collected a single co-sponsor, had a committee hearing, or came up for a vote.

Congresswoman Jackson Lee died in June 2024 of pancreatic cancer. Her last effort at a 65%-type law was the Federal Prison Bureau Nonviolent Offender Relief Act of 2023 (H.R. 54), which called for nonviolent offenders who were at least 45 years old and had zero criminal history points and no incident reports to serve only 50% of their sentences. This bill, like her prior efforts, failed.

There is NO legislation pending in Congress – a legislative body unable to even keep the government open – that provides any sentencing relief for federal prisoners. I predict that there is no stomach in this Republican-controlled Congress to entertain any such legislation. If there were, President Trump – who has been pushing the trope that America is overrun with crime – is unlikely to sign it.

However, the 2025 Guidelines amendments did become effective on November 1st. The most significant is that for the first time in 37 years, departures have been eliminated (except for substantial assistance to the government, its own category with three decades of precedent on its frequent application). Another, a new drug amendment, expands the use of the mitigating role adjustment and caps the drug quantity table for such people at a maximum of 32. Another change encourages courts to impose supervised release only on people needing such structure and asks courts to terminate such supervised release early.

The supervised release change will benefit anyone subject to current or future supervised release. None of the other changes, however, is retroactive.

US Sentencing Commission, Amendments in Brief (October 31, 2025)

~ Thomas L. Root

Federal Court Shutdown Follows No Common Script – Update for October 31, 2025

Leave a comment

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

FEDERAL COURTS ARE CLOSED, BUT UNEVENLY

The federal judiciary ran out of money for full, paid operations last week, and the courts have fallen into ‘survival mode’.

Bloomberg Law reported last week that some court locations were closing one day per week and some staff members will be furloughed. Other staff members will work without pay to perform essential functions, including core constitutional duties and criminal cases.

The kinds of activities that fall into these exceptions and will therefore remain ongoing include emergency detention hearings, maintaining critical infrastructure like electronic filing systems, essential criminal proceedings, and urgent court filings that cannot be postponed without violating rights. It probably does not include compassionate release motions, § 2255 adjudication, and most § 2241 proceedings.

“In short,” FindLaw reported last week, “while judges remain constitutionally obligated to serve, the broader judiciary shifts into ‘survival mode,’ sustaining only the most crucial operations under strict legal limits. Most court employees (clerks, administrative staff, researchers, probation officers, and others) cannot work during a shutdown unless their tasks fall into one of those excepted categories. Those who do continue working must do so without pay until Congress restores funding. All other staff are being placed on furlough.”

How the courts have addressed the shutdown varies. Some are only working four days a week.  Others have limited the types of cases that will be decided.

Speaking on The Federal Drive podcast yesterday, Lathan & Watkins partner Nick Boyle, said,

There is a significant amount of autonomy in the court system. What’s happening is that there’s been a bit of divergence, court by court, as funding has run out. So, as you probably know, there was a period where non-appropriated funds could be used by courts. So, that’s things like the balances in court fee accounts, for example. At this point, that funding has essentially been exhausted, and courts are making different decisions on whether to stay open, what to prioritize, etc., depending on things like their caseload or what type of cases that they might take. So, you’re seeing a little bit of a divergence.

The last shutdown that led to court furloughs was over 30 years ago, during the Clinton administration.

ABA Journal, Federal courts furlough some staff as money runs out; Supreme Court will close to the public (October 20, 2025)

Bloomberg Law, US Courts Face First Furloughs Under Shutdown in 30 Years (October 17, 2025)

Findlaw, Justice Unpaid is ‘Justice Delayed’ as Courts Face Government Shutdown (October 22, 2025)

Federal News Network, The ongoing government shutdown is impacting the federal judiciary (October 30, 2025)

~ Thomas L. Root

Clemency Pay-to-Play? – Update for October 30, 2025

Leave a comment

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

TRUMP CLEMENCY CIRCUS PAUSED AMID PROFITEERING CONCERNS

NBC reported last week that the White House was tightening up on clemency, just as the White House pardoned serial liar George Santos and Binance crypto executive Changpeng Zhao.

Sources told NBC News that White House chief of staff Susie Wiles, who has played a central role in reviewing pardons, became more outspoken about abuses last August after reports emerged that lobbyists and consultants were advertising themselves as offering access to Trump pardon authority for steep prices.

Those officials said Wiles pushed back hard against these efforts and tightened the process to distance it from those attempting to broker influences. While it’s legal to engage lobbyists on these issues, Wiles made it clear to those on the outside that she would not tolerate people trying to profit from the pardon process.

Reports in August by Bloomberg that two intermediaries seeking to cash in on pardons were floating a plan to another bitcoin exec to secure a presidential pardon for him in exchange for $30 million. The report set off alarms inside the White House, the two White House officials and two others familiar with the discussions told NBC News.

Some lobbyists had received proposals as high as $5 million to put clemency cases in front of Trump. Recently, an associate of former Sen. Bob Menendez, who is accused of bribing the senator with gold bars, paid $1 million to a Washington lobbyist with ties to Trump to help secure clemency.

Not that it matters that much. Trump last week pardoned Santos as a political favor to the outspoken Marjorie Taylor Greene (R-GA), who has recently turned critical of the President. The late-week pardon to Zhao acknowledged a man whose company, Binance, has also been a key supporter of the Trump family’s World Liberty Financial crypto venture, making billions.

The President said the pardon was because each man had been persecuted for political reasons.

What is pretty clear is that the President has no incentive or interest in granting pardons or commutations unless a financial or political gain is to be made. Today’s Wall Street Journal reports that as soon as Trump was elected a year ago, Zhao’s representatives began discussions with Trump allies, offering a deal for the Trump family in exchange for a pardon. Binance agreed with the Trumps’ start-up cryptocurrency venture, World Liberty Financial, that Binance could leverage into clemency for Zhao, the Journal reported, citing sources close to the transaction.

“This spring,” the Journal reports, “Binance took steps that catapulted the Trump family venture’s new stablecoin product, enhancing its credibility and pushing its market capitalization up from $127 million to over $2.1 billion.” Following that,

Trump granted Zhao a presidential pardon last week, “likely paving the way for the world’s largest crypto-trading platform to return to the U.S., from where it was banned after the company pleaded guilty in 2023 to violating anti-money-laundering rules.

While avoiding possibly fallacious post hoc, ergo propter hoc reasoning, the arrangement does leave garden-variety prisoners wondering what – other than some soups and honeybuns from next week’s commissary day – they might have to trade the Trumps for clemency.

NBC, White House tightens the clemency process as Trump resumes pardons (October 24, 2025)

Wall Street Journal, Trump Pardons Convicted Binance Founder (October 23, 2025)

Wall Street Journal, Binance Boosted Trump Family’s Crypto Company Ahead of Pardon for Its Billionaire Founder (October 30, 2025)

~ Thomas L. Root

Supremes Take on Gun Possession for Drug Abusers – Update for October 29, 2025

Leave a comment

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

SCOTUS TO DECIDE CONSTITUTIONALITY OF 18 USC 922(g)(3)

The Supreme Court decided last week to address a multi-circuit conflict over whether 18 USC § 922(g)(3) – that prevents anyone “who is an unlawful user of or addicted to any controlled substance (as defined in 21 USC § 802)” — including marijuana, which most states have legalized in some fashion — from possessing guns or ammo.

By accepting the petition for certiorari filed last June by the Dept of Justice, the high court will examine a 5th Circuit decision that allowed Texas resident Ali Hemani to possess firearms regardless of his marijuana use.

Ali, an alleged regular marijuana user, was charged with a subsection (g)(3) violation after agents searched his home and found cocaine, marijuana and a Glock 19.

The 5th Circuit found (g)(3) unconstitutional in most cases and said it could be government has urged the justices to uphold the statute because habitual drug users with firearms presented “unique dangers to society” and raised the prospect of “armed, hostile encounters with police officers.”

The case will require the justices to apply the court’s test for examining challenges to gun control measures under the 2nd Amendment flowing from New York State Rifle & Pistol Assn v. Bruen. The test requires courts to strike down such laws unless they are “consistent with the nation’s historical tradition of firearm regulation.”

The Supreme Court limited the sweep of Bruen when it found last year in United States v. Rahimi that the government could take guns away from people subject to restraining orders for domestic violence.

In its petition, DOJ noted that Ali was caught with cocaine as well as weed and that he made other incriminating statements to the cops. The government also emphasized allegations that Ali is a dual US and Pakistani citizen, had ties to the Iranian Revolutionary Guard Corps, and went to Iran to honor Iranian general Qasem Soleimani, killed by a US drone strike. The government claimed Ali’s mother was seen on video saying she hoped her sons would become martyrs for Iran.

In response, Ali called those accusations “non germane,” which, of course, they are. “The limited allegations set forth in the indictment should be the only facts before the Court,” Ali’s attorneys argued.

Focusing on the present dangerousness of drug users – and note that the statute doesn’t prevent alcohol abusers or those suffering from substance use disorder from lawfully prescribed controlled substances – could have substantial implications for the decision on 18 USC 922(g)(1) that is surely coming.

Some observers think that SCOTUS may have set up Ali Hemani to lose. “There are plenty of other cases involving more sympathetic defendants, like medical marijuana users with no criminal record or documented ties to terrorist groups,” law professor Dru Stevenson told The Reload. “If the Court just wanted to let pot smokers have guns, they could have picked one of those appeals. Instead, they picked someone caught with cocaine, who made a number of other incriminating statements to police, and who made incriminating statements in text messages legally retrieved from his phone.”

“So, while it’s extremely early to be drawing any conclusions with a high degree of certainty, The Reload said, there’s a clear path to the court making a very narrow holding applicable to Ali’s facts and no others:  “SCOTUS could easily uphold the federal drug user gun prohibition as applied only to the facts of Hemani’s case. And those facts probably don’t match the ones many other gun owners are likely to face, including those who regularly smoke weed. If the Court holds that Hemani is dangerous enough to disarm because there’s evidence he deals hard drugs and has collaborated with a foreign terrorist organization in addition to using marijuana regularly,” The Reload said, “that probably doesn’t tell us a whole lot other than that SCOTUS doesn’t believe the historical record requires people to be actively intoxicated in order to lose their gun rights–as the lower court held.”

In addition to several perfect § 922(g)(3) petitions the Court elected to overlook, the perfect § 922(g)(1) petition – Vincent v United States – is awaiting SCOTUS review. The fact that the Court has not taken the petition up in conference for two months since it was ripe for action suggests that the Court may defer action on 922(g)(1) until a (g)(3) decision is rendered.

Law360, High Court To Hear Case Asking If Drug Users Can Have Guns (October 20, 2025)

The Hill, Supreme Court to decide if drug users can carry guns (October 20, 2025)

New York Times, Supreme Court Will Weigh Gun Restrictions for Drug Users (October 20, 2025)

Vincent v. United States, Case No. 24-1155 (petition filed May 8, 2025)

The Reload, Analysis: Will the New SCOTUS Second Amendment Cases Produce Relatively Little Movement? (October 26, 2025)

~ Thomas L. Root

Front-End Loader – Update for October 28, 2025

Leave a comment

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

BOP ANNOUNCES IT WILL FRONT-LOAD FSA TIME CREDITS

The government shutdown is entering Day 28 with no end in sight. But not everything at the Bureau of Prisons has ground to a halt. Last week, the agency announced a technical change in how it calculates the end of a prisoner’s sentence that could have a major, beneficial effect on inmates.

The date of a prisoner’s release is significant to the BOP for everything from placement in an appropriate facility to eligibility for programs to the date a prisoner goes to a halfway house or home confinement under 18 USC § 3624(c) (the Second Chance Act). The BOP has always calculated what it calls the “statutory” sentence by assuming that the prisoner will earn every day of good-conduct time (54 days a year) possible under 18 USC § 3624(b).

Of course, prisoners do not always earn every day of good time. They lose it for rule infractions (something that may be epidemic with the number of cellphones in the system, where being caught with one is a high-severity prohibited act).

The fact that inmates may lose good-conduct time during their sentences has never deterred the BOP from its practice of assuming that a prisoner will earn 100% of possible good time. Nothing wrong with that: it’s a rational policy that makes release planning possible. But until now, the BOP has steadfastly refused to make the same reasonable assumption that a prisoner will earn all of the First Step Act credits (FTCs) available to him.

Last week, BOP bowed to common sense, announcing that it will now anchor its inmate management decisions to a new metric called the FSA Conditional Placement Date (FCPD), essentially front-loading FTCs in the same way it front-loads good conduct time.

Up to now, the BOP has only used a Projected Placement Date that reflected the credits earned up to the date of the PPD’s calculation, while not assuming that the prisoner would earn any FTCs after that date. The new FCPD date will assume that an inmate will continue earning FTCs every month, just like good conduct time, and will thus represent the projected point when an inmate — based on earned time credits — should be eligible for placement in halfway house or home confinement, or released. The BOP will now direct staff to use the FCPD date as the foundation for decisions about security/custody classification and facility placement.

“It’s a small technical change on paper but a major cultural shift in practice,” Walter Pavlo wrote last week in Forbes. “By using this date to guide decisions, the Bureau is effectively saying that the earned time credits aren’t just theoretical—they are the organizing principle for how and when people move through the system.”

Use of FCPDs should lead to faster inmate placement at lower custody levels and placement in programs such as the residential drug abuse program.  Pavlo said that one BOP insider estimated that over 1,500 people would be eligible to move from low-security facilities, which are near capacity, to minimum-security camps that have ample space. Additionally, reliance on FCPDs will alleviate last-minute transfers to halfway house or home confinement, which cause delays in paperwork and inmate housing arrangements. As Pavlo put it, “By focusing on the Conditional Placement Date months in advance, everyone gains time to prepare.

The FCPD change should ensure that FTCs have real meaning, connecting prisoner success to the date on an inmate’s worksheet for prerelease planning. “This change reflects our continued commitment to managing the inmate population in a way that is both fair and consistent with the law,” said Rick Stover, Special Assistant to the Director. “By using Conditional Placement Dates, we are improving operational efficiency, supporting our staff, and honoring the intent of the First Step Act.”

Rabbi Moshe Margaretten, President of the prison-reform advocate Tzedek Association, called the development a “truly monumental” moment for prison reform. “This reform will change thousands of lives—allowing men and women who have worked hard to better themselves to move into lower-security settings and reconnect with their families much earlier.” 

BOP, A Win for Staff and Prison Reform (October 21, 2025)

Forbes, Bureau Of Prisons Makes Changes To First Step Act Calc (October 21, 2025)

Belaaz, Major Bureau of Prisons Reform After Years of Advocacy by Tzedek, ‘Monumental Step’ (October 21, 2025)

 

~ Thomas L. Root

You Should Have Told Me That… Update for October 24, 2025

Leave a comment

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

IT WASN’T BRAIN SURGERY…

Nita Patel operated companies offering mobile diagnostic test services at a physician’s office. To pay for the services, Medicare required a licensed physician on staff to sign off on the tests.

When applying to Medicare for approval to do one kind of neurologic diagnostic testing, Nita’s husband falsely represented that a licensed neurologist would supervise the tests. Based on the representation, Medicare approved the companies as providers of the specialized test. The companies started testing with one of the owners – who was not a licensed doctor – forging a physician’s signature on the tests.

The companies made over $4 million from the scheme.

People who pull such scams shouldn’t. If they do, they should keep their employees happy. A disgruntled Patel worker lodged a qui tam claim against the companies (a civil action in which, if the government wins a judgment, the person bringing the action gets a monetary reward).

The government looked at the claim and smelled a rat. It then indicted the Patels. A day after the husband and wife pled guilty in 2016, the Government took over the qui tam action from the employee, asserting a False Claims Act cause of action. 

There’s a problem with guilty pleas beyond the obvious prison, fines, forfeitures and reputational harm. Such a plea can be used against the defendant in a civil action. The Patels’ guilty pleas pretty much made their liability in the qui tam action ‘game, set and match.’

Nita filed a 28 USC § 2255 motion, claiming her lawyer rendered ineffective assistance because he never told her that her guilty plea could be used against her in a False Claims Act lawsuit. Comparing her case to Padilla v. Kentucky –  a 2009 Supreme Court decision holding that defense attorneys have a duty to advise their defendant-clients of the immigration consequences of a guilty plea – Nita argued that counsel had a duty to advise her of all collateral consequences of pleading guilty, including the risk of civil liability.

C’mon, people. The notion that if you rip off the government, you might be forced to pay the government back is not such a hard idea to wrap your head around. Likewise, if you swear under oath that you committed a crime in doing so – necessary if you’re pleading guilty – you shouldn’t be shocked if another court relies on that admission.

Last week, the 3rd Circuit ruled against her.

The 3rd held that even though Nita had finished her prison sentence and supervised release term, she still met § 2255’s “in custody” requirement for bringing a motion because she faced substantial collateral civil consequences from her conviction.

That hardly mattered, however, because the Circuit held that Padilla does not address whether the “distinction between direct and collateral consequences [should] define the scope of constitutionally ‘reasonable professional assistance’ required under Strickland.” Rather, deportation stands alone among non-criminal consequences requiring proper attorney advice as a matter of the 6th Amendment.

It probably would have been a good idea for defense counsel to talk about civil liability flowing from admitting criminal guilt to a $4 million scam.  But counsel’s failure to do so was not ineffective assistance under the 6thAmendment.

Patel v. United States, Case No. 23-2418, 2025 U.S. App. LEXIS 27085 (3d Cir. October 17, 2025)

~ Thomas L. Root