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Something My Wife Never Says… – Update for October 8, 2020

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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.

IRS WAS WRONG, I WAS RIGHT

b1fI think I will savor those few words. “I was right.” It is something my bride of 41 years has never told me. Really, it happens as often as this month’s blue moon. But I can crow about this: When I advised federal inmates last April that the CARES Act had been so shoddily and quickly written that it qualified them for the $1,200 stimulus payment, I was right. Right. Right. Bloody well right.

There were plenty of doubters. In early May, the IRS posted guidance that inmates were not eligible for stimulus payments. Arguments went back and forth about this all summer.  The Senate even proposed a change in the law that would deny prisoners stimulus checks, and making it retroactive to March’s CARES Act. (It’s a shame the Senate isn’t as handy with the “retroactive” bit when it comes to criminal justice legislation, but that’s another story).

The problem was this: Nothing in the CARES Act authorized the IRS to write inmates out of the stimulus payment. The best excuse the IRS could come up with was that prisoners cannot get social security benefits Out in California, a couple of incarcerated people did something about it. They sued the IRS, and a few weeks ago, U.S. District Judge Phyllis Hamilton issued a 45-page preliminary injunction against the IRS, preventing it from deny stimulus payments to people because they were locked up.

nothing170127A preliminary injunction does not mean the plaintiffs won, but it does mean that the Court believes that the plaintiffs are likely to prevail on the merits. Although much of the Order relates to procedural and collateral issues, such as standing, ripeness and sovereign immunity, the meat of the holding – the strength of the IRS’s position – was pretty straightforward:

The… inquiry is whether incarcerated persons are eligible individuals.  On this question, the statute is brief and to the point.  Section 6428(d) states:

For purposes of this section, the term “eligible individual” means any individual other than (1) any nonresident alien individual, (2) any individual with respect to whom a deduction under section 151 is allowable to another taxpayer for a taxable year beginning in the calendar year in which the individual’s taxable year begins, and (3) an estate or trust.

§ 6428(d).  There is no indication that Congress left the definition of “eligible individual” open-ended or otherwise up to the Secretary’s discretion to change.  See Jimenez v. Quarterman, 555 U.S. 113, 118 (2009) (“It is well established that, when the statutory language is plain, we must enforce it according to its terms.”).

The court also finds persuasive the fact that the IRS has asserted three different interpretations of the term “eligible individual” since the enactment of the Act, barely six months ago. Initially, the IRS disbursed nearly 85,000 EIPs to incarcerated persons and, when the Treasury Inspector General for Tax Administration (“TIGTA”) questioned IRS management about this decision, the IRS “noted that payments to these populations were allowed because the CARES Act does not prohibit them from receiving a payment.” Then, as reflected in the FAQ, the IRS’s internal procedure manual, and the TIGTA report, the IRS decided that incarcerated individuals are not eligible. Now, the IRS takes the position in this litigation that, subject to generally applicable administrative and judicial rules, the IRS plans to allow otherwise eligible individuals who were only incarcerated for a portion of tax year 2020 to claim a CARES Act tax credit. The shifting interpretation demonstrates that the IRS “went well beyond the ‘bounds of its statutory authority.’”

shocked180619What? The IRS just made stuff up to stick it to inmates? I’m sure we’re all shocked.

The biggest immediate problem facing the Court was to get all of the eligible inmates who were either denied, had payments returned by prison staff who believed the IRS malarkey, or were deterred from filing by the claptrap on the IRS website, signed up. The deadline for filing the IRS non-filer statement – which can be done from the website or on a Form 1040 – had been October 15. The Court concluded it lacked the power to force the agency to move the date, but it strongly urged the parties to agree to something later.

Yesterday, the agency caved, and announced that the deadline for filing non-filer statements is now November 21, 2020.

It appears that the non-filer tool on the Web does nothing more than complete a Form 1040 reporting filing status and lack of income. For inmates without Internet access (which would be close to 100%), the standard 1040 can be completed and mailed.

money160818Meanwhile, the IRS has filed a “protective appeal” to the Ninth Circuit — which appears to be a placeholder of sorts designed to give officials time to decide if the agency will fight the ruling. “The decision whether to proceed with the appeal will be made by the acting solicitor general, who has not yet made a decision,” the IRS said in a court filing on Monday.

Order Granting Motion for Prliminary Injunction and Motion for Class Certification, Scholl v. Mnuchin, Case No. 20-cv-05309, 2020 U.S. Dist. LEXIS 176870 (N.D.Cal. September 24, 2020)

IRS.gov, Economic Impact Payment Information Center — Topic A: EIP Eligibility and General Information (June 5, 2020)

KPIX-TV, IRS Tries To Claw Back COVID-19 Stimulus Checks Sent To Prison Inmates (June 24, 2020)

Forbes, IRS Must Pay $100 Million Worth Of $1,200 Stimulus Checks, Judge Orders In Prisoners’ Lawsuit (October 6, 2020)

CBS News, IRS extends deadline for 9 million people to register to get a stimulus check (October 7, 2020)

The Independent, US judge: IRS can’t keep coronavirus money from inmates (October 7, 2020)

– Thomas L. Root

Don’t Believe Us… Check COVID Numbers for Yourself – Update for October 6, 2020

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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.

RUNNING THROUGH THE NUMBERS

Active inmate COVID cases in the Bureau of Prisons reportedly fell 20% last week, from 2,080 to 1,670. But the number of sick staff – who are the ones bringing the disease in from the community and taking it back out – increased again, going from 703 to 726. Likewise, the number of institutions with active cases went from 116 to 118.

OIGgraph201006Speaking of numbers, the Dept. of Justice Office of Inspector General last Thursday announced a new interactive dashboard with the most comprehensive data yet on the BOP’s COVID-19 cases, deaths, and testing results. The dashboard provides daily graphs and metrics on active and recovered cases for staff and inmates, and on COVID-19 deaths staff and inmates. The data are aggregated for the entire BOP as well as broken down by all 122 individual facilities. They also show testing trends by facility, and provides information on the number of confirmed COVID-19 cases in the county in which a selected prison is located.

The OIG data represents a substantial reference for people filing compassionate release motions. As the Appeal noted last Friday, “Bureau of Prisons facilities have seen some of the largest COVID-19 outbreaks since the start of the pandemic and the department has been criticized for lacking a coherent virus response plan.” The OIG data help make that point.

reinfection200831Some of the latest criticism of the BOP’s COVID response came in a filing a week ago in a suit by Lompoc inmates against the Bureau. Dr. Homer Venters, an expert in epidemiology appointed by the federal court to report on conditions at Lompoc, filed a report criticizing the institution’s use of temperature only (without noting symptoms) to screen for COVID, its quarantining of inmates in punitive conditions in the SHU, lack of effective infection control in housing areas, and a nonresponsive sick call and chronic care system.

In San Diego, where the BOP’s detention center has had 368 inmate COVID-19 cases, a local newspaper reported last week that “one key decision that appears to have facilitated the spread of the virus within the facility happened when a local hospital recommended that instead of bringing an inmate in for a procedure, medical professionals do it at the jail with phone support from the hospital. The inmate was brought to the hospital regardless, and wasn’t quarantined upon his return. Soon, he and the inmates around him tested positive for the virus.”

crazynumbers200519Outbreaks continue to rage in some locations. A full 77% of inmates at FCI Waseca have contracted COVID-19. As of last Friday, 143 women were still sick. At nearby FMC Rochester, 25 inmates currently have COVID. The prison was clear of the virus just a few weeks ago after an August outbreak sickened more than a dozen inmates. Numbers remain high at Big Spring, Oxford, Coleman, Oklahoma City, Forrest City and Allenwood.

EMS1, a publication for first responders, last week called on the President to “direct the Federal Bureau of Prisons to reduce movement of offenders between facilities, minimize the intake of non-violent offenders, and ensure corrections officers have necessary PPE to prevent further spread of COVID-19 within our nation’s prisons. COs are at high-risk for on-duty exposure and can’t perform their important duties if they are in fear of bringing COVID-19 home to their spouses and children.”

In Virginia, Brian Shoemaker, a USP Lee corrections officer and union president, said Tuesday that the union is concerned about transfers of COVID-19-positive inmates to the prison in September. Shoemaker said that seven inmates brought to the prison since last week tested positive for COVID-19. Two positive inmates arrived last week, he said, and five more positive inmates arrived Monday night. “Institutions in the bureau are eaten up with (COVID-19) and they’re sending cases into a COVID-free prison population,” Shoemaker said.

DOJ Office of the Inspector General, Interactive Dashboards Relating to COVID-19 within the Federal Bureau of Prisons (October 1, 2020)

The Appeal, Coronavirus in jails and prisons (October 2, 2020)

F.R.Ev. 706 Report of Dr. Homer Venters, Torres v, Mulusnic, Case No. 20cv4459 (C.D.Cal, filed September 25, 2020)

Santa Maria Times, Screening shortcomings, lack of timely care identified in federal report on Lompoc prison response to COVID-19 (September 30, 2020)

Minneapolis, KTTC-TV, 70% of inmates at Waseca prison have contracted COVID-19, FMC outbreak reaches new high (October 1, 2020)

EMS1, President Trump, a get-well letter (October 2, 2020)

Voice of San Diego, Morning Report: Key Decisions Fueled COVID’s Spread in Downtown Jail (September 28, 2020)

Johnson City Press, Virginia legislators, prison staff union concerned over inmate COVID-19 cases (September 30, 2020)

– Thomas L. Root

1st Circuit Gives Pre-Booker Career Offenders Some Relief– Update for October 5, 2020

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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.

NO DEFENDANT LEFT BEHIND

vagueness160110The 2015 Supreme Court decision Johnson v. United States was a landmark, holding that the residual clause in the Armed Career Criminal Act’s definition of “crime of violence” was unconstitutionally vague. Johnson’s reasoning led to Sessions v. Dimaya (extending Johnson to the criminal code’s general definition of “crime of violence” at 18 USC § 16(b)) and 2019’s United States v. Davis holding extending Johnson to 18 USC § 924(c), the “use or carry a firearm” statute.

But thousands of inmates who were held to be Guidelines “career offenders” because of prior crimes of violence got no relief. A Guidelines “career offender” is very different from an ACCA armed career criminal. A Guidelines career offender is someone with two prior crimes of violence or serious drug convictions (federal or state). If a defendant qualifies as a Guidelines career offender, he or she will be deemed to have the highest possible criminal history score and a Guidelines offense level that ensures a whopping sentencing range.

After Johnson, a number of Guidelines career offenders, whose status had been fixed by including some dubious prior convictions as “violent,” sought the same kind of relief that Johnson afforded armed career criminals. But in 2017 the Supremes said that Johnson did not apply to the Guidelines. Beckles v. United States held that the Guidelines were not subject to the same kind of “vagueness” challenge that worked in Johnson, because the Guidelines did not “fix the permissible range of sentences, but merely guided the exercise of discretion in choosing a sentence within the statutory range.”

This may have been so for people sentenced under the advisory Guidelines. However, back before the 2005 Supreme Court decision in United States v. Booker, those “advisory” Guidelines were mandatory. They did not guide a judge’s discretion. Instead, the law required a judge to sentence within the applicable Guidelines sentencing range except in very narrow circumstances, and then only if the sentencing court jumped through the many hoops the Guidelines erected.

Robber160229So, how about guys like Tony Shea, who was sentenced after a bank robbery spree as a career offender back in 1998? Tony’s prior crimes of violence were pretty shaky bases for a career offender enhancement (not that Tony didn’t have plenty of problems for his string of armed robberies, but that’s another story). Tony was looking at minimum 430 months under normal Guidelines, nothing to sneeze at, but with the career offender label, Tony’s minimum sentence shot that up to 567 months (that’s 47-plus years, or 330 dog years).

Tony filed a § 2255 motion arguing that because his Guidelines career offender sentence was mandatory, not “advisory,” the Johnson holding should apply to wipe out his career offender status.

Last Monday, the 1st Circuit agreed. The appeals court noted that while Beckles was right that advisory Guidelines guide a judge’s discretion rather than “fix the permissible range of sentences,” the pre-Booker Guidelines did much more than this. The Circuit said “when the pre-Booker Guidelines ‘bound the judge to impose a sentence within’ a prescribed range, as they ordinarily did, they necessarily “fixed the permissible range of sentences” she could impose.”

Judicial despotism... probably not a good thing.
         Judicial despotism… probably not a good thing.

“It’s easy,” the 1st said “to see why vague laws that fix sentences… violate the Due Process Clause. The… rule applied in Booker serves two main functions. First, fair notice: requiring the indictment to allege ‘every fact which is legally essential to the punishment to be inflicted… enables the defendant to determine the species of offence with which he is charged in order that he may prepare his defense accordingly…” Second, “the rule also guards against the threat of ‘judicial despotism’ that could arise from ‘arbitrary punishments upon arbitrary convictions,’ by requiring the jury to find each fact the law makes essential to his punishment.”

Only the 11th Circuit has explicitly held that Beckles does not apply to mandatory Guidelines career offender enhancements. The 5th, 8th and 10th Circuits are on the fence. This 1st Circuit decision is the first to emphatically apply Johnson to give relief to people like Tony, who is already well into his third decade of imprisonment.

Shea v. United States, 2020 U.S. App. LEXIS 30776 (1st Cir., September 28, 2020)

– Thomas L. Root

COVID-19… BOP Not In A Good Place – Update for October 1, 2020

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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.

WHISTLING PAST THE COVID-19 GRAVEYARD

The country may not “be in a good place” with coronavirus infections and deaths, as Dr. Anthony Fauci told ABC News on Monday, but you couldn’t tell that by looking at the Bureau of Prisons, a federal agency that specializes in keeping people in places that are not very good.

goodplace201001Apparently deciding that COVID-19 is only a five-day-a-week illness, the BOP has stopped posting COVID updates on the weekend. And, of course, visitation resumes this weekend, which will be a very good thing psychologically for inmates and families.

Nevertheless, COVID pays the BOP no heed, continuing on as before. Compared to where the agency was at the beginning of September, yesterday’s numbers represented a 1% increase in inmate virus cases (to 1,911), a 8% increase in BOP staff COVID cases (from 667 to 726), and eight more inmate deaths (from 125 to 133). As of yesterday, coronavirus is active in 119 facilities, 98% of all BOP institutions.

The continuing rise of COVID-19 among staff, and the near universality of COVID-19 among BOP prisons is troubling. Let’s hear it for the BOP’s “action plan…” 

BOPCOVIDCases200928

Of some concern ought to be the two latest deaths, one from FCI Edgefield and the other from FMC Lexington. At Edgefield, Barry Johnson tested positive for COVID-19 on August 16th. He remained asymptomatic and was released from isolation on eleven days later, having be declared “recovered” by the BOP. But 19 days after his recovery, Barry could not walk. Edgefield sent him to the hospital, which sent him back the same day. BOP health services staff declared him “stable” on September 20. Last Wednesday, Barry died of COVID-19.

Tom Krebs tested positive for the virus last May, spending a month in the hospital. He was returned to FMC Lexington in mid-June, when his COVID tests came back negative. He went back and forth to the hospital several times after that for treatment of other conditions, but not of COVID-19. Last Thursday, Tom died in his bed of COVID-19.

COVIDdeath201001In both cases, the inmates had been declared “recovered,” only to die of COVID-19 days or weeks later. Deaths of “recovered” inmates with CDC risk factors is becoming a recurring theme in the BOP, undercutting any thoughts that coronavirus is a one-and-done kind of illness.

The Minneapolis Star-Tribune reported last week that COVID-19 cases are spiking at FCI Waseca and FCI Sandstone. Nearly 300 of Waseca’s 600 inmates have contracted the virus, most in the past few weeks. Nine staff members also have tested positive. “People are scared,” Ryan Burk, president of the union that represents 150 prison staffers, told the Star-Tribune. “The concern is that we’re going to bring it home to our families, our parents and to the community.”

The prison reported its first three COVID-19 cases among inmates in July but had no new cases popped up until a busload of new prisoners arrived in late August, Burk said.

Meanwhile, a third new inmate at USP Hazelton tested positive for COVID-19, workers told the Morgantown Dominion Post.

COVIDheart200720

“This time [the transfer came] from one of our own BOP facilities in Oklahoma. The inmate was not even tested or quarantined before being sent to us. This is nothing short of negligence,” said Richard Heldreth, president of Local 420 of the American Federation of Government Employees, which represents workers at Hazelton.

West Virginia’s two U.S. Senators and First District Congressman, and prison workers, raised new concerns last month about inmate transfers. They argue it is wrong to send untested federal prisoners or prisoners who have been in areas with a high infection rate to states — like West Virginia — that have a low infection rate.

BOP, Inmate Death at FCI Edgefield (September 25, 2020)

BOP, Inmate Death at FMC Lexington (September 25, 2020)

Minneapolis Star-Tribune, COVID-19 cases spike at two federal prisons in Minnesota (September 24, 2020)

Morgantown Dominion Post, Third USP Hazelton inmate transfer tests positive for COVID-19 (September 24, 2020)

– Thomas L. Root

Barr Declines to Celebrate Festivus – Update for September 29, 2020

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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.

ATTORNEY GENERAL TO CONGRESS: ‘DROP DEAD’

Jerry Seinfeld popularized the formerly-obscure anti-holiday Festivus, which included “The Airing of Grievances,” an event which immediately follows the festival feast. Attorney General William Barr effectively announced last week that for the House Judiciary Committee, Festivus came early this year.

festivus200929On September 21, the Justice Department declined a congressional oversight committee’s request to hear from various DOJ officials, including BOP Director Michael Carvajal to discuss  the BOP’s COVID-19 response. The reason? The Department has accusing Democrats of having “squandered” their opportunity to get relevant information from Attorney General William Barr this summer by instead using their time to “air grievances” instead of ask questions.

The House Judiciary Committee had asked that Eric S. Dreiband, the head of DOJ’s Civil Rights Division, appear this month to discuss the division, and that Carvajal and Donald Washington, the director of the U.S. Marshals Service, appear for an oversight hearing on Oct. 1.

Barr told Committee Chairman Jerrold Nadler (D-New York) that in July, Barr had been advised that he could be asked about police misconduct, voting rights, the coronavirus and federal prisons, and the civil unrest this spring and summer. But, Barr complained, when he appeared before the committee in July  to discuss those issues, but Democrats were more interested in “scolding and insulting” him.

meantome200929“Having squandered its opportunity to conduct a meaningful oversight hearing with the attorney general,” the letter said, “it remains unclear how further public spectacles with other department officials would now — a mere 14 legislative days since the attorney general’s hearing — advance the committee’s legitimate oversight efforts.”

Democrats and their allies argued after the hearing that Mr. Barr would not have answered their questions in good faith had they let him respond, and that he would have filibustered and wasted the time. Better, they said, to use the time to air their grievances.

DOJ argued to Nadler that this did “preciously little to advance any legitimate interest” because the committee as a result of this tactic learned no new information.

Meanwhile, several members of Congress from Virginia demanded answers from the BOP about prison conditions amid the pandemic. Senators Mark Warner (D) and Tim Kaine (R), along with Rep Morgan Griffith (R) are among those behind a letter sent last Tuesday to Director Carvajal.

The lawmakers are disturbed at reports of a lack of personal protective equipment and diminished quality of life for the incarcerated at USP Lee and FCC Petersburg. The letter said at least one prisoner who tested positive for COVID-19 was transferred to USP Lee, which they fear could cause a coronavirus outbreak in Lee County. The letter also alleges Petersburg inmates are being denied showers and workers continue to be denied lunch breaks.

control200511Carvajal responded Wednesday, claiming in a letter that both FCI Petersburg and USP Lee have “ample supplies of Personal Protective Equipment (PPE)” that includes face coverings, N95 respirators, gowns and gloves, and other sanitation equipment. The letter did not cite specific numbers.

“Indeed, the Bureau has ensured that all institutions nationwide have ample quantities of PPE, and has also established strategic stockpiles in each of our six regions where PPE can be drop-shipped within one day to any institution that might need additional supplies,” Carvajal wrote in the letter, a copy of which was provided to The Progress-Index.

The Virginia delegation lawmakers also wrote to the DOJ inspector general last Friday, asking that the IG include USP Lee and FCC Petersburg in its remote inspection list. “Our offices have received numerous reports from employees and families of incarcerated individuals regarding the spread of COVID-19 and allegations of deteriorating health and safety conditions within both facilities,” the letter said. “These concerns have been raised multiple times by several of our offices with BOP, and we remain deeply troubled by conditions at the two Virginia correctional facilities,” wrote the lawmakers… Many of our offices have received reports that – despite denials from BOP – cases are increasing and inadequate steps have been taken to limit transmission at this facility.”

prisonfood200919

In their letter, the lawmakers also note that they have received disturbing reports of diminished quality of life for inmates because of the COVID-19 lockdowns, including reports of spoiled food and reduced access to recreation, education, and other essential facilities.

The New York Times, Justice Dept. Denies House Panel’s Request for Officials to Appear After Combative Barr Hearing (September 22, 2020)

Letter from DOJ to Chairman Jerrold Nadler (September 21, 2020)

WCYB-TV, Bristol, Virginia, Federal lawmakers demand answers on COVID-19 conditions in Virginia prisons (September 23, 2020)

Petersburg, Virginia, Progress-Index, Director refutes claims by lawmakers about inadequate PPE at Petersburg federal prison (September 23, 2020)

Augusta Free Press, Virginia leaders urge DOJ to include Virginia correctional facilities in remote inspections (September 26, 2020)

– Thomas L. Root

2nd Circuit Declares “Open Season” for Inmates Seeking Compassionate Release – Update for September 28, 2020

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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.

2ND CIRCUIT REINVENTS COMPASSIONATE RELEASE TO UNLEASH JUDGES’ DISCRETION

The government has been fighting 18 U.S.C. § 3582(c)(1)(A) compassionate release motions hammer and tong ever since inmates won the right to file such motions themselves in the First Step Act. (Before that, only the BOP could file such a compassionate release motion, and – unsurprisingly – the BOP had little interest in doing so, but that’s another story).

compassionaterelease190517A great example of government hard-heartedness: Reason magazine reported last week that the U.S. Attorney in Miami “unsuccessfully tried to argue that an 80-year-old inmate serving a life sentence for marijuana offenses shouldn’t be released because COVID-19 is just ‘one more way to perish in prison’.”

U.S. District Judge Donald Graham disagreed, granting compassionate release to an inmate – who was 27 years into his life sentence – and was wheelchair-bound by arthritis and heart disease. Reason cited the Miami case as an illustration of its point that while the Attorney General has urged the BOP to use compassionate release, home confinement, and other measures to get elderly and at-risk inmates out of federal prison, “the rollout of Barr’s directive has been maddeningly inconsistent…”

Reason quoted FAMM president Kevin Ring as saying, “Title 9 of the U.S. Attorney’s Manual governs criminal proceedings, and there is no provision there that requires you to be an asshole.”

compassionate200928Not that that has stopped the government. One recurring government argument against compassionate release is that U.S.S.G. § 1B1.13 only lists four reasons for compassionate release. If you don’t fit into reasons (1) through (3) – and hardly anyone does – you have to rely on the fourth, which says, “As determined by the Director of the Bureau of Prisons, there exists in the defendant’s case an extraordinary and compelling reason other than, or in combination with, the reasons described” in the other three reasons.” The government has argued that for any reason other than an inmate’s terminal illness (such as having a COVID risk factor), a court cannot grant compassionate release unless the BOP has itself made the motion. “A sizable minority” of courts have agreed.

Last week, the 2nd Circuit drove a stake through the heart of that argument. Jeremy Zullo sought compassionate release. The court denied him, ruling that his reasons – sentence unfairness, rehabilitation and government violation of his plea agreement – had not been found to be “extraordinary and compelling” under 18 U.S.C. § 3582 by the director of the BOP, and thus could not support a sentence reduction.

The Circuit reversed, holding that § 1B1.13 does not apply to post-First Step sentence reduction motions:

Application Note 4 says that ‘[a] reduction under this policy statement may be granted only upon motion by the Director of the Bureau of Prisons pursuant to 18 U.S.C. § 3582(c)(1)(A). And we conclude that after the First Step Act, this language must be read not as a description of the former statute’s requirements, but as defining the motions to which the policy statement applies. A sentence reduction brought about not ‘upon motion by the Director of the Bureau of Prisons”’ is not a reduction ‘under this policy statement.’ In other words, if a compassionate release motion is not brought by the BOP Director, Guideline 1B1.13 does not, by its own terms, apply to it. Because Guideline 1B1.13 is not “applicable” to compassionate release motions brought by defendants, Application Note 1(D) cannot constrain district courts’ discretion to consider whether any reasons are extraordinary and compelling.

compassion160124This holding is nothing short of astounding, sweeping away much of the compassionate release jurisprudence that has been written in the last 20 months. It will likely open compassionate release motions to people who have compelling arguments, but not claims that can be pigeonholed into the four categories in U.S.S.G. § 1B1.13.

Reason.com, Federal Prosecutors Argue COVID-19 Is Just ‘One More Way to Perish in Prison’ (Sept 25)

United States v. Brooker, Case No. 19-3218-CR, 2020 U.S. App. LEXIS 30605 (2d Cir. Sept 25, 2020)

– Thomas L. Root

Voodoo Economics in the Courtroom Takes a Hit – Update for September 25, 2020

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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.

DO THE MATH

Christian Delgade-Lopezwas convicted of methamphetamine distribution. At sentencing, he argued for a reduction in his Sentencing Guidelines score for a minor role (USSG § 3B1.2), arguing he was just a simple DJ who was forced by circumstances to deliver meth for $1,000 a trip, and even having to pay his own expenses out of the grand he received.

djmeth200925The district judge didn’t buy it. Based in part on information the judge had gathered on his own about gas prices and mileage, the court did a back-of-the-envelope calculation from the bench, and estimated Chris’s expenses per trip to be $730.00, leaving him with a net profit of $270.00. After learning that Chris made $14.00 an hour at his full-time job, the district court speculated he could have made $224,00 in two days at his regular DJ gig had he not acted as a drug courier. The judge, wondering why anyone would act as a drug courier for what amounted to a lousy $100.00 net gain over honest work, decided Chris’s testimony about being a mere courier simply was not believable. Besides, the court said, Chris refused to cooperate with the government, and thus should not benefit from a minor-role reduction.

Last week, the 10th Circuit reversed Chris’s sentence. The Circuit admitted that a district court’s credibility findings should receive deference, but it ruled that nevertheless, a sentencing finding “must be based on evidence before the court, and thus in the record, and not on speculation or hypothesis.”

idontbelieveyou200925In this case, the district court’s determination was based on pure speculation about the economics of the drug-trafficking scheme, without any evidence with which to evaluate the financial wisdom of Chris’s decision to be a drug courier. “Its impromptu calculations were based on speculation,” the 10th said, “that Jude could work more hours at his existing job, unfounded estimates about the costs involved in each of his trips, and the assumption that he knew of the relative financial benefits of the arrangement prior to accepting.” The court thus erred by relying on its own speculation, the Circuit held, in finding that Chris was not credible.

What’s more, the district court was not entitled to hold that Chris’s lack of cooperation should deny him a minor-role reduction. The Guidelines “include a detailed explanation of what factors a court may and must consider,” the 10th held, “but does not mention cooperation. And although the determination requires a court to look at the totality of the circumstances, logic dictates that a defendant’s cooperation or lack thereof is entirely irrelevant to the factual determination of whether he or she played a minor role in an offense.”

United States v. Delgado-Lopez, 2020 U.S. App. LEXIS 29032 (10th Cir. Sept. 14, 2020)

– Thomas L. Root

The Ugly Gets Uglier in Coleman Sex Assault Suit – Update for September 24, 2020

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FLORIDA NEWSPAPER REPORTS COLEMAN GUARDS WHO SEXUALLY ABUSED FEMALE INMATES WERE NOT PROSECUTED

Hey, all you male predators: Want a job where you can freely sexually assault women? And retire with fat benefits (and a nonprosecution agreement)? Have we got an opportunity for you at the BOP!

inconceivable170817In a story published last week, The Tampa Bay Times reported that the government admitted in a court filing that six of eight COs named in a civil suit by 15 current and former female inmates at Coleman engaged in sexual misconduct, but were not prosecuted, but rather allowed to resign or retire. Some are still getting federal retirement benefits.

The suit contends the Coleman prison was a “sanctuary” for abusers. In some cases, the women allege, the abuse lasted for years. The women, who range in age from 26 to 59, were threatened if they didn’t comply, the suit maintains.

Tampa Bay Times, No consequences after Florida officers admit to sexually abusing inmates, lawsuit says (September 17, 2020)

– Thomas L. Root

Sentencing Sanity the 3rd, 7th Circuits – Update for September 23, 2020

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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.

THREE FIRST STEP/FAIR SENTENCING DECISIONS OF NOTE

Last week was a good one for the First Step Act.

Sentencestack170404Hector Uriante was convicted of running with a gang that kidnapped and robbed drug dealers, including several 18 USC 924(c) counts that got stacked in the pre-First Step days. On the first 924(c) count, he got seven years for brandishing, but the brandishing was found by the judge, not the jury. On direct appeal, the Circuit remanded the case for resentencing because of Alleyne v. United States‘ holding that the jury had to find facts supporting an enhanced mandatory minimum.

The district court resentenced him last year, after First Step passed, but the judge still stacked his 924(c) counts, giving him 25 years for the second one. The district judge held that since Hector was first sentenced before First Step passed, the Act’s ban on stacking 924(c) convictions did not apply.

Last week, the 7th Circuit reversed in an en banc opinion that rejects the 3rd Circuit decision in United States v. Hodge. Because the prior sentence had been vacated, the 7th said, it was a “nullity.” A vacatur “wipes the slate clean,” meaning that at the time First Step passed, Harry was convicted and awaiting sentencing. Congress wrote First Step’s changes in 924(c) stacking to “apply to any offense that was committed before the date of enactment of this Act, if a sentence for the offense has not been imposed as of such date of enactment,” making no distinction between defendants who had never been sentenced and those whose sentence had been vacated fully and who were awaiting the imposition of a new sentence. “In this way,” the Circuit explained, “Congress stanched, to the degree that it could without overturning valid and settled sentences, the mortmain effect of sentencing policies that it considered no longer in the Nation’s best interest. It ensured, moreover, all persons awaiting sentencing on the effective date of the Act would be treated equally, a value long cherished in our law.”

So Hector’s good fortune in getting his sentence overturned under Alleyne, which appears to have saved him two years, in fact reduces his sentence by a full 22 years (two years off the 7-year “brandishing” sentence and a reduction of the second 924(c) sentence from 25 to five years).

conspiracy160606The 7th Circuit last week held that the same rule benefitted Rashod Bethany. Rashod was sentenced for a crack conspiracy in 2013, but later won a § 2255 motion on the grounds his lawyer erred in letting the court use the wrong edition of the Guidelines. He was resentenced after First Step passed, but his sentencing court would not let him benefit from the lower drug mandatory minimums passed in § 401 of the Act.

The 7th said that same rule applied. The § 2255 motion vacated his sentence, so Rashod was in the same position as a defendant who had never been sentenced. The Circuit remanded the case to district cout for a ruling of whether the sentence would have changed if lower mandatory minimums had been applied.

Finally, in the 3rd Circuit, James Easter had filed for a resentencing under First Step § 404, the section that made the 2010 Fair Sentencing Act retroactive. The court decided that James was eligible for a reduction, but denied him one because, the judge concluded, James’s Guidelines range did not change even if the FSA was applied.

James appealed, arguing that a district court had to consider the sentencing factors in 18 USC § 3553(a), not just a mechanistic look at the guidelines. Last week, the 3rd Circuit agreed.

While other circuits generally agree that minimum, a district court may consider the § 3553(a) factors, the 3rd said a judge must do so. “Section 404(b) uses the word ‘impose’ twice, and the first instance clearly refers to the act of imposing the original sentence.” The Circuit ruled. “Because Congress used the same word, we can infer that it conceived of the district court’s role as being the same when it imposes an initial sentence and when it imposes a sentence under the First Step Act. As the text of § 3553(a) makes clear, district courts look to the factors set forth there whenever they impose a sentence on a defendant.”

The 3rd Circuit joins the 4th and 6th Circuits in adopting the rule.

United States v. Uriarte, 2020 U.S. App. LEXIS 29234 (7th Cir. Sept 15, 2020)
United States v. Bethany, 2020 U.S. App. LEXIS 29246 (7th Cir. Sept 15, 2020)
United States v. Easter, 2020 U.S. App. LEXIS 29243 (3d Cir. Sept 15, 2020)

– Thomas L. Root

Is BOP COVID-19 Climbing Again – Update for September 22, 2020

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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.

COVID-19: NEW REASONS TO BE VERY AFRAID

The Federal Bureau of Prisons once again gained nothing last week in its fight against COVID-19. The number of inmates sick with the hovered all week between 1,915 and 2,045, and last night, hit 2,076. The number of sick staff started climbing again, too, from 631 a week ago to 669. The number of BOP facilities with the virus climbed as well to 117, a whopping 95% of all institutions. Ominously, the number of dead inmates jumped from 125 to 130.

The increase is consistent with concerns that the nation is in for another coronavirus increase in the coming days. And just in time for the fall spike.

The BOP has done enough COVID-19 tests as of last night to test 37% of the BOP inmate population. The percentage of tests that are positive remains 25%.

BOPInmatcases

One of last week’s deaths is especially troubling. On June 1, FCI Butner inmate Ricky Miller tested positive for COVID-19. A month later, he was tested again and declared to be recovered. Two months later, on Sept 9, Ricky developed shortness of breath and leg edema, and was hospitalized. The hospital found that he had COVID-19. He died a day later.

The timing suggests that Ricky caught COVID twice within a few months. If that is so, then the idea that having the disease once confers immunity against getting it again is cast into doubt. And that could mean that COVID-19 will remain a risk until a vaccine is available for inmates.

This comes as new research released last week suggests that the coronavirus can sometimes hijack brain cells, using the cells’ internal machinery to copy itself.

The research, which has not yet been published in a peer-reviewed journal, provides evidence that the virus can directly infect neurons. Although the coronavirus has been linked to various forms of brain damage, from deadly inflammation to brain diseases known as encephalopathies, all of which can cause confusion, brain fog and delirium, there was little evidence of the virus itself invading brain tissue until now.

imageScientists at Oak Ridge National Labs in Tennessee announced last week that supercomputer analysis of COVID-19 suggests that the virus triggers a “bradykinin” storm in the body. Bradykinin is a chemical that regulates blood pressure. The researchers found that some people with the coronavirus may produce it in extreme excess, according to Business Insider, throwing major systems — including respiratory, gastrointestinal, and neurological pathways — off balance.

death200330The theory aligns with researchers’ growing view of the coronavirus as a vascular disease instead of a respiratory one. Research has shown that COVID-19 can lead to blood clots, leaky capillaries, and inflamed blood vessels — which is why some patients may experience heart damage or stroke. “We were really scratching our heads for a while, how does this disease have this darn broad set of symptoms across lots of different organ systems?” Dr. Daniel Jacobson, the lead researcher behind the supercomputer study, told Business Insider. “As we looked at the effects of bradykinin, our model was that this virus can affect several different types of tissues, several different organs.”

Meanwhile, the BOP faces new eruptions of COVID-19 at USP Leavenworth, as well as continuing crises at Big Spring, San Diego, Coleman, Waseca and Manchester.

BOP, Inmate Death at FCI Butner (Low) (Sept 17)

Livescience, The new coronavirus can infect brain cells, study finds (Sept 13)

Business Insider, A supercomputer found a promising theory about why COVID-19 cases go downhill fast. It even explains the bizarre range of symptoms (Sept 13) 

Hays, Kansas, Post, Leavenworth tops all federal prisons in COVID-19 cases (Sept 15)

– Thomas L. Root