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11th Circuit Throws Wrench Into Compassionate Release Gears – Update for May 10, 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.

11TH CIRCUIT SPOILS THE COMPASSIONATE RELEASE PARTY

downer210510You’d never invite the 11th Circuit to a party. Once again, the Debbie Downer of appellate courts has gone its own way, destroying most of the usefulness of compassionate release motions (aka sentence reduction motions under 18 USC § 3582(c)(1)(A)(i)) that all the other circuits take for granted.

Before last Friday, seven courts of appeal have held that USSG § 1B1.13 – the Guidelines policy statement on compassionate release – does not limit motions brought by prisoners. The Guideline – written well before the First Step Act allowed defendants themselves (instead of the BOP Director alone) to bring compassionate release motions – only allows compassionate release motions for a limited list of problems. Anything not on the list – such as the COVID risks for people with vulnerable medical conditions – must be approved by the BOP.

The BOP’s record of approving compassionate release motions is dismal. Between April and December 2020, the BOP approved 11 out of 10,940 inmate requests, which works out to one-tenth of 1%. The 2nd, 4th, 5th, 6th, 7th, 9th, and 10th Circuits have all agreed that § 1B1.13 – unamended since First Step passed – is not an “applicable policy statement” for compassionate release motions brought by prisoners, and will not be until the Sentencing Commission amends it to reflect current law.

hammer160509The consensus of those other circuits does not impress the 11th Circuit. Jim Bryant moved for compassionate release because First Step had cut the mandatory 25-year minimum for an 18 USC § 924(c) gun conviction because he received a higher sentence than some of his coconspirators, because he went to trial, and because he has a good prison rehabilitation record. Last week, the Circuit shot down his request because the BOP had not approved the basis for reduction.

The 11th said, “Application Note 1(D) does not conflict with § 3582(c)(1)(A). The First Step Act’s only change was to allow for defendant-filed reduction motions. Nothing in Application Note 1(D) stops a defendant from filing a § 3582(c)(1)(A) motion. The BOP may still file motions, and Application Note 1(D) can apply to those motions. The BOP can also take a position on a defendant-filed motion, so Application Note 1(D) has a field of application there as well… Because this Court can give effect to the amended § 3582(c)(1)(A) and the unamended Application Note 1(D) at the same time, the Court must do so.”

The effect this ruling will have on compassionate release motions in the 11th Circuit can hardly be overstated. The stark circuit split created by this 2-1 decision may result in Supreme Court review, but inasmuch as a reconstituted Sentencing Commission – which President Biden intends to do – is likely to have § 1B1.13 amended by November 2022, the likelihood the Supreme Court will take up what is likely to be moot a few months after the case is decided is slim.

United States v. Bryant, Case No 19-14267, 2021 U.S.App. LEXIS 13663 (11th Cir., May 7, 2021)

– Thomas L. Root

Reform When? – Update for May 7, 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.

WHERE’S CRIMINAL JUSTICE REFORM?

Some advocates are starting to lose patience with the Biden Administration’s lack of a concrete criminal justice reform package.

lips210507Kara Gotsch of The Sentencing Project told NPR last week, “The lip service is good, but we need more, more action.” And Kevin Ring, president of FAMM, said while he is guardedly optimistic that the White House is trying to lay the groundwork for more foundational change. “But there‘s also some skepticism that he was going to have to tear down the house that he built in some ways through the sentencing laws and prison policies he not only sponsored but bragged about,” Ring said.

But last Friday, with “Second Chance Month” running out, White House officials held a virtual listening session with criminal justice advocates who were previously incarcerated to receive input on how to advance prison reform through policy.

White House counsel Dana Remus and domestic policy adviser Susan Rice were among the leaders of the conference, which included leaders from 10 advocacy groups such as Forward Justice, the National Council for Incarcerated and Formerly Incarcerated Women and Girls, and JustLeadershipUSA.

Biden has not yet moved to end the use of the death penalty, despite promising to do so on the campaign trail. And while he has pushed for action on police reform legislation following the conviction of former Minneapolis police officer Derek Chauvin in the murder of George Floyd, Biden has kept a distance from legislative negotiations on Capitol Hill as Democratic and Republican lawmakers try to find common ground.

Friday’s meeting was held to commemorate Second Chance Month, a nationwide effort to highlight the challenges faced by people who have been previously convicted.

“Too many people — disproportionately black and brown people — are incarcerated. Too many face an uphill struggle to secure a decent job, stable housing, and basic opportunity when they return from prison,” the White House said in the readout. “Those who have been through the system have particular insight into its shortcomings and the reforms that are needed.”

actions210507Whether the listening ripens into a criminal justice reform proposal is anyone’s guess, but with Biden focused on his infrastructure proposal, some suspect reform is not a top Biden priority. USA Today last weekend suggested actions speak louder than platitudes. The paper blasted DOJ’s intransigence in opposing virtually every compassionate release motion filed:

But talk is cheap, and while the administration’s rhetoric is promising, second chances remain few and far between in a federal criminal system where the Department of Justice continues to thwart the administration’s goals by opposing the release of individuals who are rehabilitated and do not pose a risk to the public. Making good on his commitment to criminal justice reform requires more than rhetoric. The Biden administration’s Department of Justice must change course.

NPR, Activists Wait For Biden To Take Bold Action On Criminal Justice Reform (April 28, 2021)

The Hill, White House officials meet virtually with criminal justice reform advocates (May 1, 2021)

USA Today, Biden administration needs to walk the walk on second chances for prisoners (May 1, 2021)

– Thomas L. Root

“Did We Nail That Pandemic, Or What?” – Update for May 6, 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.

TELL US HOW WE’RE DOING

howwedoing210506The Dept of Justice Office of Inspector General announced last week that it would be conducting a second survey of BOP staff and a first survey of inmates to determine how well the BOP performed during the pandemic.

The results of the surveys should be illuminating.

And how are things now? As of last Friday, the BOP said it has given two doses of vaccine to about 35% of all inmates, and about 49% of staff. About 126 inmates are sick with COVID-19, and 164staff, with COVID still present in 67% of facilities, if BOP numbers can be believed.

numbers180327But can the numbers be believed? The Marshall Project and Associated Press, which jointly have been tracking how many people are being sickened and killed by COVID-19 in prisons across the country and within each state since March 2020, have given up on BOP numbers, warning that “our understanding of the full toll of the pandemic on incarcerated people is limited by the Federal Bureau of Prisons’ policy of removing cases and deaths from its reports in recent months. As a result, we cannot accurately determine new cases or deaths in federal prisons, which have had more people infected than any other system.”

Another federal inmate died of COVID last week, this one at FMC Devens. Paul Archambault contracted COVID-19 at the end of December but was declared “recovered” ten days later. The “recovery” label appears to have benefited record-keeping more than Mr. Archambault. Like a number of others before him, he died of the COVID-19 from which he had recovered.

rehabB160812In New York last week, U.S. District Judge Katherine Polk Failla granted compassionate release to an inmate at MCC Manhattan, ruling that a key part of her sentence was addiction treatment and care for other ailments. The judge said the BOP hasn’t provided it to the inmate, who was serving a sentence for a cocaine conspiracy.

“Due to the extreme lockdown conditions at the [Metropolitan Correctional Center] and [Metropolitan Detention Center], the inmate has been unable to receive mental health care, drug abuse treatment, and other important services that the Court envisioned her receiving while incarcerated,” the judge wrote. “The Court believes these services to be critical to her physical and mental health, and to her ability to reenter society as a productive and law-abiding citizen.”

DOJ Inspector General, Surveys of BOP Federal Prison Staff and Inmates (April 28, 2021)

The Marshall Project, A State-by-State Look at Coronavirus in Prisons (April 30, 2021)

BOP, Inmate Death at FMC Devens (April 29, 2021)

New York Daily News, Judge, inmate slam conditions at NYC federal jails in pandemic’s 13th month (April 26, 2021)

– Thomas L. Root

Twenty-Five Years of Mischief Is Enough – Update for May 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.

HAPPY ANNIVERSARY TO TWO LOUSY LAWS

A quarter-century ago, Congress enacted a pair of laws that severely restricted the ability of prisoners to raise constitutional challenges against conditions of confinement, as well as challenge unjust and wrongful convictions. Over the last 25 years, this pair of laws — the Prison Litigation Reform Act (PLRA) and the Antiterrorism and Effective Death Penalty Act (AEDPA) — “have all but closed the federal courthouse doors to life and death lawsuits,” the ACLU complained last week in commemorating dual anniversaries of enactment of the laws.

aedpa210504

First, the AEDPA: “This pernicious, dizzyingly complicated law created a minefield of procedural barriers and deadlines that severely limited state prisoner use of federal habeas corpus,” the ACLU said last week. What’s more, it placed severe restrictions on the filing of 28 USC § 2255 habeas corpus motions, especially successive ones. The AEDPA, according to the Washington Post, was “the first time in centuries that the legislature of a western democracy had put restrictions on the “Great Writ.”

innocent210504The AEDPA took away a lot of the authority of federal judges to do their jobs. “The law creates a maze of Kafkaesque procedures that create the danger of an incarcerated person’s petition being thrown out at every turn for a failure to follow even the most minute rule,” the ACLU reported, “regardless of whether their claims have merit.”

While having its most restrictive impact on state prisoners, the AEDPA set severe time limits on the filing of 2255 motions, stripped from judges the ability to choose when a successive 2255 was appropriate instead of abusive, and seriously limited a petitioner’s right to appellate review, unless he or she first obtained a certificate of appealability granting permission to appeal.

Congress passed the Prison Litigation Reform Act in 1996, a piece of litigation that – contrary to most laws Washington enacts – has worked all too well. The goal of the PLRA was to reduce the number of lawsuits brought by prisoners, and by that metric, it has been a phenomenal success. But now, many commentators are calling for its demise.

nothing170125Passed as the nation’s prison population was exploding thanks to the war on drugs, the PLRA was supposed to weed out the sort of frivolous prisoner litigation Congress perceived as bombarding the federal courts. As The Appeal described it last week, testimony in hearings on the PLRA “focused on sensationalized and largely mythical claims about ‘a defective haircut by a prison barber, the failure of prison officials to invite a prisoner to a pizza party, and, yes, being served chunky peanut butter instead of creamy variety’. By dismissing real cries for help as frivolous, disingenuous, and opportunist, lawmakers built the PLRA on dehumanizing and inaccurate stereotypes of incarcerated men and women.”

In the 25 years since, it has become clear that the PLRA is reducing prisoner litigation — but not just by targeting frivolous claims. It cut the rate of civil rights lawsuits filed by prisoners by nearly half. “But if the goal was to somehow weed out ‘frivolous’ lawsuits in favor of meritorious claims, the Appeal argued, “then, presumably, there would have been at least some increase in the rate of successful civil rights lawsuits by incarcerated plaintiffs. Not so. Instead, the success rate of civil rights lawsuits for incarcerated plaintiffs steadily dropped after the enactment of the PLRA and despite a recent uptick is nearly identical to the success rate pre-PLRA.”

Among other provisions, the PLRA made exhaustion of remedies mandatory prior to suing. It permitted courts to throw out suits as frivolous prior to requiring an answer. And it required prisoners to pay filing fees by withholding installment payments from commissary accounts, even if the prisoner was indigent. Additionally, the PLRA makes it “hard to find representation by sharply capping attorney fees, creates high barriers to settlement, and weakens the ability of courts to order changes to prison and jail policies,” according to the Prison Policy Initiative.

nothingcoming181018Incarcerated people are still allowed to sue over unlawfully inflicted physical injury, but the PLRA restricts the remedies available in cases where people are alleging only mental or emotional harm. Some courts have interpreted this to mean that people cannot receive money damages for their prison/jail injuries unless they can show that they suffered extremely serious physical injury. Others have found that this provision applies even to Constitutional claims about free speech, religious freedom, discrimination, and due process.

As a Senator, Joe Biden tried to strip the AEDPA of its worst limitation, but President Clinton’s support for the bill doomed the effort. Now, the Post said last week, “lawmakers could consult with defense lawyers, legal scholars, federal judges and prosecutors, repeal AEDPA, and replace it with something more just and fair. The last 25 years have shown the Clinton administration should have listened to Biden in 1995. But, now, Biden’s own administration can lead an effort to fix the problems he predicted, and once tried to prevent.”

ACLU, The Unhappy 25th Birthday of Two Tough-on-Crime Era Laws That Have Deadly Consequences for Incarcerated People (April 27, 2021)

Washington Post, Opinion: Joe Biden fought this destructive law. 25 years later, he can help repeal it (April 27, 2021)

The Appeal, How The Prison Litigation Reform Act Has Failed For 25 Years (April 26, 2021)

Prison Policy Initiative, Slamming the Courthouse Door: 25 years of evidence for repealing the Prison Litigation Reform Act (April 26, 2021)

– Thomas L. Root

Hobbs Is Violent, Hobbs Is Not Violent – Update for May 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.

THE TWO FACES OF HOBBS

Two cases decided in the past few weeks illustrate the strange world of Hobbs Act robbery.

janus210502The Hobbs Act, a post-war legacy of Congressman Sam Hobbs (D-Alabama) federalized robbery of the corner candy store. Sam was a man of his time, close friends of J. Edgar Hoover (and sponsor of a bill that would have let the FBI wiretap anyone suspected of a felony, which ultimately did not pass).

The Hobbs Anti-Racketeering Act of 1946 amended the Anti-Racketeering Act of 1934 after the Supreme Court held in United States v. Teamsters Local 807 that Congress meant to exempt union extortion from criminal liability.  Congress did not so intend, and Sam Hobbs sponsored a bill that made sure the Court got the message.

Like its predecessor, the Hobbs Act prescribes heavy criminal penalties for acts of robbery or extortion that affect interstate commerce. The courts have interpreted the Hobbs Act broadly, requiring only a minimal effect on interstate commerce to justify the exercise of federal jurisdiction. That Clark bar you stole at gunpoint?  It was made over in Altoona, Pennsylvania, by the Boyer Candy Co. Inasmuch as you robbed it from a confectioner in Podunk Center,  Iowa, your robbery affected interstate commerce. Presto – a Hobbs Act robbery.

clark2120503The Hobbs Act has been used as the basis for federal prosecutions in situations not apparently contemplated by Congress in 1946. Just ask Earl McCoy.

Earl rode around in the car while his brothers committed armed home invasions, stealing TVs and the such from Harry and Harriet Homeowner at gunpoint. Convicted of Hobbs Act robbery, Hobbs Act conspiracy, attempted Hobbs Act robbery and of four counts of using a gun in the commission of the crimes, Earl got sentenced to 135 years.

That’s only 15 years less than Bernie Madoff got for a $65 billion swindle, proving Earl was probably in the wrong business. Of course, Bernie didn’t use a gun. It was the gun that got Earl, five stacked 18 USC § 924(c) counts that added 107 years to his sentence. The First Step Act changed the stacking law, so the same offense would net Earl only 35 years today, still substantial time but at least servable in a normal lifetime.

Ernie appealed his conviction, arguing that the attempted robberies, the conspiracy, and aiding and abetting could not support 18 USC 924(c) convictions. Ten days ago, the 2nd Circuit gave him a split decision.

violence181008The 2nd agreed that after United States v. Davis, Hobbs Act conspiracy no longer supports a § 924(c) conviction. No surprise there. But the Circuit held that attempted Hobbs Act robbery and, for that matter, aiding and abetting a Hobbs Act robbery, was a crime of violence that supports a § 924(c) conviction.

Earl argued that one could attempt a Hobbs Act robbery without ever using force. After all, scoping out a store to rob while carrying a gun is enough to constitute an attempt, and no violence was ever used. Doesn’t matter, the 2nd said. To be guilty of Hobbs Act attempted robbery, a defendant necessarily must intend to commit all of the elements of robbery and must take a substantial step towards committing the crime. Even if a defendant’s substantial step didn’t itself involve the use of physical force, he or she must necessarily have intended to use physical force and have taken a substantial step towards using physical force. That constitutes “attempted use of physical force” within the meaning of § 924(c)(3)(A).

For aiding-and-abetting to be enough to convict someone of a crime, the underlying offense must have been committed by someone other than the defendant, and the defendant must have acted with the intent of aiding the commission of that underlying crime. An aider and abetter is as guilty of the underlying crime as the person who committed it.

Because an aider and abettor is responsible for the acts of the person who committed the crime, the Circuit held, “an aider and abettor of a Hobbs Act robbery necessarily commits all the elements of a principal Hobbs Act robbery.”

lock200601Earl will get 25 years knocked off his sentence, leaving him with a mere 110 years to do. As for whether “attempts” to commit a crime of violence is itself a crime of violence, that question may not be settled short of the Supreme Court.

But the Hobbs Act has a split personality: it is not a crime of violence for all purposes. In the 4th Circuit, Rick Green pled to Hobbs Act robbery, with an agreed sentence of 120 months. But the presentence report used the Hobbs Act robbery as a crime of violence to make him a Guidelines career offender, with an elevated 151-188 month sentencing range. At sentencing, Rick argued Hobbs Act robbery was not a crime of violence under the Guidelines “career offender” definition. His sentencing judge disagreed.

But last week, the 4th Circuit sided with Rick. Applying the categorical approach, the Circuit observed that Hobbs Act robbery can be committed “by means of actual or threatened force, or violence, or fear of injury, immediate or future,” to a victim’s person or property.” The 4th said, “this definition, by express terms, goes beyond the use of force or threats of force against a person and reaches the use of force or threats of force against property, as well… So to the extent the Guidelines definition of “crime of violence” requires the use of force or threats of force against persons, there can be no categorical match.”

Thus, Rick was not a “career offender,” and will get resentenced to his agreed-upon 120 months.

United States v. McCoy, Case No 17-3515(L), 2021 US App. LEXIS 11873 (2nd Cir Apr 22, 2021)

United States v. Green, Case No 19-4703, 2021 US App. LEXIS 12844 (4th Cir Apr 29, 2021)

– Thomas L. Root

We’ve Got The Shorts – Update for April 30, 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.

Today, this being the end of the month, we’re cleaning off our desktop…

SOME ODDS AND ENDS FROM LAST WEEK

Banned in Moscow: In response to President Biden’s expulsion of Russian diplomats because of the massive Solar Winds computer hack discovered last December, Vladimir Putin last week banned eight US officials from entering Russia.

The excluded government honcho include current top intelligence officials, former National Security Advisor John Bolton, FBI Director Christopher Wray, and… BOP Director Michael Carvajal.

carvajal210430Huh? The media covering the story have explained the reasons for all of the expulsions except for Carvajal’s, which is usually noted as an afterthought.

Putin knows why Carvajal is on the list. Carvajal maybe knows. But no one else seems to have any idea.

The Hill, Russia blocks key Biden Cabinet officials from entering in retaliation for sanctions (April 16, 2021)


FMC Carswell Catching Heat for Inmate Death: The Ft Worth, Texas Star-Telegram reported last week on the death of Martha Evanoff at FMC Carswell.  The paper said that Evanoff “begged for medical attention for months, fellow inmates say, but was denied help until she died” on April 12.

Evanoff had surgery last November, but, according to a fellow inmate as well as Evanoff’s own emails to me, her intestines protruded through the surgical incision into her abdominal wall that had opened up. Ultimately the protrusion pinched the intestines shut, blocking them completely.

medmal170127“It was totally unnecessary. They could have done something to help her,” an inmate told the paper. “She is not the first person to die here from intestinal blockage.”

Another inmate reportedly said that Evanoff begged for help about the pain she was in, and “this place did nothing. Medical indifference = murder,” the inmate wrote. “And it is just as bad as having a knee on your neck…”

In an email Evanoff wrote to me in early February, she said, “I have been extremely ill — mainly bedridden with only bathroom trips. Visibly, I have these ENORMOUS, HARD TO MISS – Incision hernias all over my abdominal area… makes it impossible for me to do anything… One in particular sticks way out like I am pregnant with 8 children… Please help me out of here BEFORE I die here…”

A suit against FMC Carswell brought by over 70 named inmates alleging negligent medical care is pending in the US District Court for the Northern District of Texas.

Ft Worth Star-Telegram: Woman at Fort Worth medical prison died after staff ignored cries for help, women say (April 20, 2021)

Blake v. Carr, Case No 4:20cv807 (N.D. Texas)
Cohen Court Nixes Earned Time Credits: Former Trump lawyer Michael Cohen, on CARES Act home confinement until his sentence ends in November, brought a habeas corpus action to win earned time credits for programs he took while still locked up.

cohen200730Last week, Mike’s judge turned him down. “The statute clearly envisions that the program will be gradually implemented during the phase-in period. During this period, the [First Step] Act requires the BOP to provide evidence-based recidivism reduction activities for all prisoners before the two-year anniversary of the date that the BOP completes a risk and needs assessment for each prisoner, namely by January 15, 2022. The statute also requires the BOP during the phase-in period to develop and validate the risk and needs assessment to be used in the reassessments of risk of recidivism, while prisoners are participating in and completing evidence-based recidivism programs. But the statute does not require the BOP to begin awarding Earned Time Credits during the phase-in period. Indeed, the statute specifically leaves to the discretion of the BOP whether to expand existing programs and whether to offer to prisoners who successfully participate in such programs incentives and rewards.”

Cohen v. United States, Case No 20-CV-10833, 2021 US Dist LEXIS 75852 (S.D.N.Y. April 20, 2021)

Law and Crime, Federal Judge Denies Michael Cohen’s Petition to Cut His Sentence Under Trump’s First Step Act (April 20, 2021)

I’ll Be Watching You: In a report released last week, the Treasury Inspector General for Tax Administration said the IRS identified more than 4,500 fraudulent tax returns using a prisoner’s social security number in 2019, claiming refunds totaling over $14 million.

watching210430The amounts could have been higher, but since 2017, the IRS has set up processes to stop tax refunds from being issued to prisoners and people who steal prisoners’ SSNs. One of them involves the BOP and state departments of corrections complying with a requirement to provide the IRS with an annual list of all prisoners incarcerated within their prison system. Another program, which the Inspector General said should be expanded, is the Blue Bag Program, in which the IRS partners with the BOP and state corrections departments to identify potentially fraudulent tax returns and refunds. The IRS program automatically pulls prisoner tax returns for fraud analysis.

Accounting Today, IRS cracks down on prisoner tax fraud and identity theft (April 19, 2021)

– Thomas L. Root

Buyer’s Remorse At SCOTUS Over Rehaif? – Update for April 29, 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.

YOU’LL NEVER FORGET YOUR FIRST FELONY

Robber160229The Supreme Court heard oral arguments last week in United States v. Gary and Greer v. United States, two cases that would dramatically increase the benefits to defendants flowing from Rehaif v. United States.

But the devil’s in the details, and the prospects for neither one looks good. While it’s dangerous to predict the outcome of a case based on what you hear at oral argument, the Supremes seemed skeptical of the relief the defendants were urging and perhaps just a little uneasy over the genie that Rehaif let out of the bottle.

Mike Gary pled guilty to an 18 USC 922(g)(1) felon-in-possession charge. After Rehaif held that a defendant had to actually know that he or she fell within a class that was prohibited from having a gun, the 4th Circuit held that the district court’s failure to tell Mike that the government had to prove he knew he was a felon at the time he possessed the weapon was a “structural” error, and therefore his conviction had to be vacated whether or not the error made any difference in the proceeding’s outcome.

In the second case, Greg Greer was convicted by a jury of being a felon in possession. After Rehaif, the 11th Circuit reaffirmed his conviction on the ground that, according to his presentence report (which was not part of the evidence at trial), Greg had previously been convicted of five felonies and had served more than a year in prison. Therefore, the court reasoned, it wouldn’t have made any difference if his jury had been properly instructed about the government’s obligations, because if Rehaif had been the law, the government would easily have shown that Greg knew he was a prohibited felon. At the Supreme Court, Greg was arguing that the appellate court should have limited itself to the evidence in front of the jury (which of course contained nothing about Greg’s checkered past).

The justices were overtly skeptical of Greg’s argument. Justice Thomas asked, “Do you have any doubt in this case that the government would have preferred to introduce the evidence that you say is lacking here?… Your approach would put someone who stipulates in a better position than someone who actually went to trial.”

breyeradrift210429Justice Breyer, who wrote Rehaif, seemed to be looking for a way to limit any further fallout from the decision. “Why only look at the trial record?” he asked, before posing a number of hypotheticals. “There could have been something that happened before the trial [that is] an error,” the justice noted. “There could be something on the list of witnesses, there could be a limitation on what’s asked,” Breyer continued. “The possibilities are endless. So where does this idea come from you can only look at certain things?” he asked. “I’m totally at sea as to why or how to draw some line.”

The justices seemed similarly skeptical of Mike Gary’s case, with many noting that it could have widespread effects on existing convictions. Speaking about the proposition that an individual’s felony status “is not the kind of thing that one forgets,” Justice Kavanaugh said, “from that premise it seems odd to throw out all of the convictions” and asked Mike’s lawyer if he believed that premise to be true.

judgedefendant210429“The question shouldn’t be whether defendants are typically aware of the element or the element is typically satisfied,” Gary’s counsel replied. “The question should be whether the defendant when he pleads guilty understood that that was part of the charge and therefore was given an opportunity to exercise his own free will.”

Both cases will be decided by the end of June.

SCOTUSBlog, Justices wrestle with procedural issues stemming from their own federal criminal-law decision (April 21, 2021)

Law & Crime, SCOTUS Seems to Have Heeded Justice Alito’s Warning, Appears Unlikely to Reverse Gun Convictions (April 20, 2021)

– Thomas L. Root

Lousy Lawyering and Other Stories – Update for April 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.

“DID I SAY FIVE YEARS? I MEANT FIVE DECADES…”

Four decisions of note last week:

stupidlawyr191202Oops, My Bad: Dave Mayhew was charged with white-collar fraud. The government offered him a plea deal that promised a maximum sentence of five years.

“C’mon, man,” his lawyer said. “That’s no deal. If we go to trial, five years is the worst we can do.” Dave, who paid big bucks for this professional advice, followed his attorney’s guidance and went to trial.

You can guess what happened. Dave lost, and he was sentenced to 27 years.

After appeals were over, Dave filed a habeas corpus motion under 28 USC § 2255, arguing that his lawyer was ineffective for giving him such bad advice. The district court denied the petition, pointing out that Dave was told at his re-arraignment that he could get up to 55 years on all of the charges and the court – no one else – would decide the sentence. So Dave knew what he was getting into, the judge claimed, and that cured any prejudice he would have suffered from his lawyer’s idiocy.

Last week, the 4th Circuit reversed. The re-arraignment came only after Dave had rejected the plea deal. The Circuit admitted that in the usual lousy-advice-on-sentence-exposure case, the law is clear that if the defendant pleads guilty after a Rule 11 change-of-plea hearing, the court’s warning that only it would determine the sentence and that the maximum the defendant faces, “taken together, may well have been enough to cure… counsel’s misadvice. But there is a fundamental problem,” the 4th held, “with applying that principle here, and it has to do with timing: The court’s admonitions in this case came only after Dave already had rejected the government’s plea offer, and there is no indication — in the record or from the government on appeal — that the offer remained open at that point.”

Bait and Switch: Rebecca Stampe made a deal on her drug case, agreeing to a Rule 11(c)(1)(C) plea locking her sentence at 168 months. An 11(c)(1)(C) plea sets a particular sentence or sentence range, with the court’s role limited to honoring the sentence deal or rejecting the guilty plea.

Deal170216Becky’s deal came with a government promise that if she testified against her co-defendant, she might get a substantial-cooperation sentence reduction under USSG § 5K1.1. But after she made the plea deal, the government dismissed the case against her co-defendant because of some unspecified misconduct by the informant (which presumedly made the informant’s testimony worthless).

Becky demanded information about the misconduct under Brady v Maryland, arguing that it was material to her guilt as well. She also moved to withdraw from her plea agreement (but not her guilty plea), figuring she’d do better with an open plea that let the court sentence her than she would with a Rule 11(c)(1)(C) plea.

Last week, the 6th Circuit shot her down. The Circuit ruled that the evidence could not possibly be material to Becky’s defense, because she had already pled guilty, so there was no defense left to make. As for the plea agreement, the Circuit said, “While we do not doubt that Stampe sincerely believed that she might avoid some prison time because of her putative cooperation in her co-defendant’s case, the plea agreement contemplated but did not require that possibility. So contrary to her assertion on appeal, it was not the ‘principal purpose’ of the agreement. The main purpose was the exchange of her plea for the government dropping the other charge against her and agreeing to a 168-month sentence.”

mathisEnd Run: John Ham filed a 28 USC § 2241 habeas petition claiming that Mathis v United States – a Supreme court decision that dictated how a sentencing court should apply the “categorical approach” in deciding whether a prior crime was a “crime of violence” under the Armed Career Criminal Act – required that he be resentenced to a lot less time.

John figured that the 4th Circuit’s United States v. Wheeler decision authorized the district court to address his § 2241 petition on the merits. The district court disagreed, and Jim appealed.

Wheeler adopted a four-part test for using § 2241 petitions to attack a defective sentence where a § 2255 motion would be “inadequate or ineffective.” One of those tests is that a petitioner must show a retroactive change in substantive law that happened after the direct appeal and first § 2255 motion.

John claimed that Mathis satisfies that requirement, changing “well-settled substantive law” about how a sentencing court should apply the categorical approach. Last week, the 4th Circuit disagreed.

“Mathis itself made clear that it was not changing, but rather clarifying, the law,” the 4th held. “The categorical approach has always required a look at the elements of an offense, not the facts underlying it… Indeed, Mathis merely repeated the ‘simple point’ that served as ‘a mantra’ in its ACCA decisions: ‘a sentencing judge may look only to the elements of the offense, not to the facts of the defendant’s conduct’.”

abandoned210427jpgSee You Around, Chump: Finally, in the 8th Circuit, Charles Ahumada filed a § 2255 motion arguing his attorney abandoned him by failing to file a petition for rehearing on his direct appeal. Not so, the Circuit said. In order to make a 6th Amendment ineffective assistance, a defendant first has to have a constitutional right to counsel. There is no constitutional right to counsel on a discretionary appeal, and a petition for rehearing is exactly that.

Chuck admitted as much, but argued that the Circuit’s Criminal Justice Act plan requiring counsel to file non-frivolous appeals gave him a due process right to effective counsel. “Even assuming there was a breach of the statute, the CJA,” the 8th said, “it does not give rise to a claim for ineffective representation of counsel.”

United States v. Mayhew, Case No 19-6560, 2021 U.S.App. LEXIS 11248 (4th Cir., April 19, 2021)

United States v. Stampe, Case No 19-6293, 2021 U.S.App. LEXIS 11459 (6th Cir., April 20, 2021)

Ham v. Breckon, Case No 20-6972, 2021 U.S.App. LEXIS 11493 (4th Cir., April 20, 2021)

Ahumada v. United States, Case No 19-3632, 2021 U.S.App. LEXIS 11861 (8th Cir., April 22, 2021)

– Thomas L. Root

BOP’s Secret Home Confinement Memo Sows Confusion – Update for April 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.

DUELING HOME CONFINEMENT MEMOS DRAW CRITICISM

A week ago, I wrote about a new Bureau of Prisons memo (which some said was really a Dept of Justice memo) expanding eligibility for CARES Act home confinement. I admitted that despite my efforts, I could not obtain a copy of it.

secret210426I’m not alone. FAMM was scrambling, inmates were scrambling, and even Ohio State University law professor Doug Berman, the dean of federal sentencing law if there ever was one, complained in his Sentencing Law and Policy blog last Tuesday that the memo has still not been released. That same day, Keri Blakinger of The Marshall Project released what purported to be the text of the memo, a well-meant but ultimately unhelpful post.

Meanwhile, my email was smoking. Inmates heard that the BOP had been told to send minimum-security inmates home even if they had not served half of their sentence, the standard that people with prior offenses of violence were excluded had been dropped… the institutions were rife with rumors. People complained that their case managers were stubbornly ignoring the new standards, that wardens were releasing internal memos that underpromised.

You remember the game “post office.” The message was whispered around the circle of kids until it returned to the source mangled beyond recognition. That’s what we had. And the blame can be laid at the bureaucratic feet of the Bureau of Prisons, which would classify road signs as “sensitive” and “FOIA exempt” if the agency could get away with it.

Thankfully, Washington, D.C., leaks like a screen door on a submarine. By Then, on Thursday, both FAMM and the Defenders Services Office of the Administrative Office of U.S. Court (the support agency for Federal Public Defenders nationwide) had obtained bootlegged copies of the memo – an April 13 release from Andre Mateviousian, Assistant Director of the Correctional Services Division, BOP – and posted them on the Internet. These posts, which are identical, appear to be the real deal.

So what changed? A couple of things. First, inmates with -300 and -400 series disciplinary reports shots in the last 12 months are not automatically disqualified. Second, inmates with “low” PATTERN scores are now eligible for CARES Act home confinement.

violence151213What didn’t change? At least a couple of things. First, if you have a prior conviction for a crime of violence (let’s say a bar fight back in 1985, when you were 21 years old and possessed a testosterone-addled brain), you are still disqualified from CARES Act home confinement (no matter that you’re doing 24 months for tearing the label off your mattress). Second, the BOP is adhering to its self-imposed standard that you have to have completed 50% of your sentence (or 25% of your sentence with less than 18 months to go).

So the Marshall Project text was wrong: prior violence still counts. The versions of the memo posted by FAMM and fd.org continue to say that “the inmate’s current or a prior offense” cannot be “violent, a sex offense, or terrorism-related.”

At the end of last week. FAMM President Kevin Ring wrote to the BOP complaining about its failure to officially release the memo. “I am writing to ask that you publish on the Bureau of Prisons’ (BOP) website any and all memos sent to wardens about the eligibility criteria for CARES Act home confinement,” Ring wrote. “The BOP’s failure to do so has created unnecessary confusion and frustration for incarcerated people and their families…”

There is not a bureaucratic reason on God’s green earth why the BOP could not have released the memorandum on April 13, 2021. Instead, the agency’s obsession with secrecy (or at least playing its cards close to the vest) generated a week’s worth of heat without light. In fact, if the memo had not been leaked to outside organizations, inmates would still be in a tizzy and families still confused.

winnie210426While I am on a rant, I should note the moment in BOP Director Michael Carvajal’s testimony two weeks ago before the Senate Judiciary Committee that made me shout “liar!” at my computer screen. That in turn caused my faithful and efficient office dog Winnie to cower under a table until I calmed down.

As I note, the new memorandum retains the 50%-of-sentence requirement. This is a standard that Attorney General William Barr never imposed. Instead, as you may remember, it was the BOP’s own fiat, added in the agency’s all-too-typical ham-handed way (with inmates who were literally walking out the door to return home being called back because of the new requirement).

When I heard Carvajal assure the Senators that all the BOP had done was to apply the AG’s home confinement criteria, I was disgusted at his prevarication and furious that the Senators were so ill-prepared by their staffs that no one called Carvajal out on the fib.

In Forbes last week, Walter Pavlo noted it as well. He too observed that the time-served requirement was not dictated by the Attorney General, but rather was

based on an internal BOP memorandum that stated it was screening inmates based on whether they had served 25% of their sentence with less than 18 months remaining or have served more than 50% of their sentence. The directive had little logic behind it because COVID-19 did not discriminate between those who had been in prison years or those who had just arrived. The result of the memorandum was devastating, leading to deaths and infections at everyone of the BOP facilities nationwide.

liar151213Testifying before the Senate Judiciary Committee two weeks ago, BOP Director Michael Carvajal said that “…any inmate that is eligible under the criteria presented to me by the Attorney General is on home confinement as we speak.” Pavlo called that misleading, noting that “what Carvajal failed to add were details of the internal memos that mandated that priority for a person’s transfer to home confinement be measured against the amount of time they had served…”

Carvajal’s statement was false then, and it is false now.

Sentencing Law and Policy, Why is DOJ apparently keeping hidden a new memo expanding the criteria for home confinement? (April 20, 2021)

The Marshall Project, Document Cloud, Home Confinement Memo (April 20, 2021)

FAMM, BOP Home Confinement Memorandum of April 13, 2021 (posted April 21, 2021)

Federal Public Defender, BOP Home Confinement Memorandum of April 13, 2021 (posted April 21, 2021)

Sentencing Law and Policy, FAMM urges federal BOP to publish memos with home confinement criteria (April 23, 2021)

Forbes, Bureau of Prisons Director Testimony To Senate Judiciary Leaves Unanswered Questions (April 20, 2021)

– Thomas L. Root

Pressure on Biden Builds On Fentanyl Analog Ban – Update for April 23, 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.

BIDEN FACES EARLY TEST ON COMMITMENT TO MANDATORY MINIMUMS

fentanyl210422In 2018, the Drug Enforcement Agency temporarily placed an entire class of compounds with chemical structures similar to fentanyl on the Schedule 1 list of drugs prohibited by federal law. Fentanyl analogs vary in potency, but even a trace of any of these compounds in a batch of drugs can trigger a lengthy mandatory minimum prison sentence.

Last week, the Government Accountability Office raised concerns that the fentanyl ban could result in people getting long sentences for compounds that are not even harmful or contain trace amounts of fentanyl-related substances. The ban has also made it harder for researchers to study thousands of fentanyl-like compounds, including to make treatments and antidotes for people living with opioid addiction, according to public health groups.

President Biden’s Office of National Drug Control Policy said the administration will work to extend the ban for seven months. Biden likely wants to avoid attacks from conservatives claiming he is “legalizing” a drug that has been so heavily demonized in the media, although allowing the Schedule 1 ban to expire is not really legislation.

Over a hundred justice and public health groups last week urged the White House to let the listing – which enhanced criminal penalties for people involved with the analogS –  expire. Instead, the coalition asked Biden to embrace a public health and harm reduction approach to fentanyl and other opioids, rather than repeating past mistakes of the war on drugs.

warondrug210423“The Biden administration and leaders of Congress are faced with their first major test of criminal justice reform… if they choose to extend this Trump-era policy, it will increase mass incarceration and the over-policing and incarceration of people of color,” said Hilary Shelton, a policy director at the NAACP, during a call with reporters on Monday.

Truthout, Biden Poised to Break a Promise on Mandatory Minimum Sentencing (April 13, 2021)

The Intercept, Biden Looks to Extend Trump’s Bolstered Mandatory Minimum Drug Sentencing (April 12, 2021)

– Thomas L. Root