This is a copy of the newsletter sent to subscribers in the federal prison system on June 30, 2024.

Felon-In-Possession Constitutionality Decision May Be Within ‘Range’ – LISA Newsletter For July 1, 2024

LISA publishes a free newsletter sent every Monday to inmate subscribers in the Federal system.

Edited by Thomas L Root, MA JD

Vol 10, No 27

THERE WILL BE NO LISA NEWSLETTER NEXT WEEK, AS MY BRIDE AND I (MARRIED 45 YEARS COME NEXT SUNDAY) GO SOMEPLACE COOL FOR A SHORT TRIP.

Government Wants Definitive Supreme Court Felon-In-Possession Ruling Now‘

Goodbye Chevron, Hello Litigation

How Is A Crooked Accountant Like Bear Repellant Spray?

Where Things Stand

Timing Is Everything

GOVERNMENT WANTS DEFINITIVE SUPREME COURT FELON-IN-POSSESSION RULING NOW

The Solicitor General checked in last Monday with a surprise supplemental brief in the Supreme Court’s pending Garland v Range review petition that asked the Court to quickly decide whether 922(g)(1) felon-in-possession (F-I-P) is constitutional while implying that the government is ready to accept that F-I-P is not constitutional in all circumstances.

After the June 21 US v Rahimi decision, just about everyone expected a spate of GVR orders on pending 922(g)(1) petitions for cert, including Range. (A GVR is a single-sentence order in which the Supreme Court grants certiorari, vacates the appellate court decision, and remands the case for further consideration in light of a new SCOTUS decision, in this case, Rahimi).

The government’s supplemental Range brief argues against that: “A GVR order is inappropriate if the delay and further cost entailed in a remand are not justified by the potential benefits of further consideration by the lower court. In our view, that is the case here. Sec 922(g)(1)’s constitutionality has divided courts of appeals and district courts… Given the frequency with which the government brings criminal cases under Section 922(g)(1), the substantial costs of prolonging uncertainty about the statute’s constitutionality outweigh any benefits of further percolation. Under these circumstances, the better course would be to grant plenary review now.”

The government recommends that SCOTUS grant cert on multiple cases to be heard in one ultimate F-I-P smackdown, including Doss v US (whether F-I-P is constitutional where the petitioner has “a lengthy criminal record” including violent crimes and Jackson v US (petitioner has “previous felony convictions for nonviolent drug crimes”). The government also asked that the Court add to the mix either Range v Atty General (now called Garland v Range) (3rd Circuit held 922(g)(1) was unconstitutional as applied to a man convicted of food-stamp fraud from 25 years before) or Vincent v. United States (10th Circuit held 922(g)(1) was constitutional when applied to woman convicted of bank fraud 15 years ago as an addict but who is now drug-free and running large charity).

As for Range and Vincent, the Government argues that “[g]ranting review in one of those cases would enable this Court to consider Sec 922(g)(1)’s application to non-drug, non-violent crimes.”

A statement in the supplemental brief suggests the Government may have concluded that Rahimi means that it cannot win arguing that F-I-P is constitutional in all circumstances. The DOJ brief says that granting “review in cases involving different types of predicate felonies” would “enable the Court to consider Section 922(g)(1)’s constitutionality across a range of circumstances that are fully representative of the statute’s applications.”

If the government were convinced that it could defend 922(g)(1) in all circumstances, it would accept certiorari in either Range or Vincent, because winning either of those cases would establish that F-I-P was immune to an “as applied” challenge. The fact that the government suggests that the Court hear a swath of cases with defendants ranging from saint to sinner implies that DOJ has conceded that the “as applied” constitutional line is going to fall somewhere in between Doss and Range.

Such a conclusion is almost foreordained by the Rahimi court’s warning that its Rahimi ruling is narrow:

Our resolution of Mr. Rahimi’s facial challenge to § 922(g)(8) necessarily leaves open the question whether the statute might be unconstitutional as applied in particular circumstances… We do not decide today whether the government may disarm a person without a judicial finding that he poses a “credible threat” to another’s physical safety… We do not resolve whether the government may disarm an individual permanently… Nor do we purport to approve in advance other laws denying firearms on a categorical basis to any group of persons a legislature happens to deem, as the government puts it, “not ‘responsible.’”

The justices may accept the government’s invitation this week (if a last cert conference is scheduled after today’s final opinions). If not, it will wait until the long conference at the end of September. If the Supremes agree to review the cases, we’ll have a definitive ruling on the constitutional limits of F-I-P by next June.

Supplemental Brief, Garland v Range, Case No 23-374 (June 24, 2024)

US Rahimi, Case No 22-915, 2024 US LEXIS 2714 (June 21, 2024)

US v Doss, Case No. 22-3662, 2023 USApp LEXIS 31748 (8th Cir. Dec 1 2023)

US v Jackson, 69 F4th 495 (8th Cir. 2023)

Vincent v Garland, 80 F4th 1197 (10th Cir. 2023)

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

New Yorker, Supreme Court Steps Back From the Brink on Guns (June 22)

GOODBYE, CHEVRON, HELLO,  LITIGATION

The 40-year-old Chevron deference doctrine holds that where a statute is ambiguous, a court must defer to any reasonable agency interpretation of the statute. The doctrine, unremarkable when adopted in 1984, has become an shield wielded effectively by agencies against litigants ever since.

Last Friday, SCOTUS overruled Chevron. The Court held in a 6-3 decision that the Administrative Procedure Act directs courts to “decide legal questions by applying their own judgment” and therefore “makes clear that agency interpretations of statutes — like agency interpretations of the Constitution — are not entitled to [Chevron] deference. Under the APA, it remains the responsibility of the court to decide whether the law means what the agency says.”

Since 1984, Chevron deference has been raised in over 1,500 reported cases against Bureau of Prisons’ interpretations of its authority. Writing in Forbes, Walter Pavlo noted that the BOP “writes program statements that interpret the law regarding punishment (sentences) imposed by the courts. Two of those are the First Step Act and Second Chance Act, which have been interpreted by the BOP in such a way that has led to prisoners being kept in institutional housing for far longer than Congress had intended when the laws were passed. The Supreme Court ruling might change that.”

Loper Bright Enterprises v Raimondo, Case No 22-451, 2024 USLEXIS 2882 (June 28, 2024)

Chevron, USA Inc. v. Natural Resources Defense Council, Inc., 467 US 837 (1984)

Forbes, The Bureau Of Prisons And The Chevron Doctrine (June 29)

HOW IS A CROOKED ACCOUNTANT LIKE BEAR REPELLANT SPRAY?

He’s not.

The Supreme Court ruled last Friday in a 6-3 opinion that 18 USC 1512(c)(2)–which bars obstruction of an official proceeding–applies only to evidence tampering, such as destruction of records or documents, in official proceedings.

The law, intended to plug a hole in the criminal code after the Enron scandal in 2001, was intended to criminalize tampering with records to obstruct their use in government proceedings. After listing “altering, destroying, mutilating or concealing objects” to impair their use in an “official proceeding,” the subsection adds a “catch-all” provision that applies to anyone who corruptly “otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so.”

The government has seized on the “catch-all” to prosecute at least 300 people who rioted on January 6, 2021, at the Capitol, including more than one person who used bear spray on Capitol Hill police.

The Supreme Court held that the general principles used to construe statutes instruct courts that “a general phrase can be given a more focused meaning by the terms linked to it.” Because subsection (c)(2) immediately follows examples that relate to messing with “objects” to be used as evidence, SCOTUS said “the most sensible inference” is that the scope of (c)(2) is limited by the examples in (c)(1).

The decision observed that the DOJ’s expansive construction of subsection (c)(2) “would criminalize a broad swath of prosaic conduct, exposing activists and lobbyists alike to decades in prison.”

Fischer v US, Case No 23-5572, 2024 USLEXIS 2880 (June 28, 2024)

WHERE THINGS STAND

If you think Congress does nothing most of the time, just wait until you see the summer of an election year. Congress will be in session for only 24 of the 128 days between now and the November elections. Where things stand now is probably where things will still stand four months from now.

On May 21, the House of Representatives passed the Federal Prison Oversight Act (HR 3019), providing for independent oversight of the BOP and for regular prison inspections. The bill has yet to be taken up by the Senate. Government news website Route 50 said last week that the close-to-unanimous House vote “suggests that even lawmakers who like to project an image of toughness aren’t willing to allow people in custody to be mistreated.”

The other big change on the horizon is marijuana reform. The Drug Enforcement Administration will almost certainly reschedule pot from Schedule I to Schedule III. However, last week a Republican-controlled House committee unveiled a key spending bill that contains a provision to block marijuana rescheduling while amending a longstanding rider protecting medical cannabis states from federal interference by adding new language to authorize enhanced penalties for sales near schools and parks.

Sec 623 of the marked-up bill directs that none of the funds appropriated or otherwise made available by this Act may be used to reschedule marijuana (as such term is defined in section 102 of the Controlled Substances Act).

The provision is unlikely to pass the Senate. However, Marijuana Moment warns that marijuana rescheduling “provisions are sure to prove controversial, with language hostile to cannabis reform included in the base CJS bill for the first time.”

If rescheduling does happen, one commentator predicted last week, “it won’t affect the federal illegal status of recreational use, although it would appropriately lessen criminal penalties. Federal decriminalization or legalization would require Congressional legislation removing marijuana from the Controlled Substances Act.”

Route 50, Criminal justice reform may be under pressure, but it still has plenty of life (June 27)

HR 3019, Federal Prison Oversight Act

House Appropriations Committee, Appropriations bill markup (June 24)

Marijuana Moment, GOP Congressional Panel Moves To Block Marijuana Rescheduling While Amending Medical Cannabis Rider With Penalties For Sales Near Schools (June 26)

Evansville Courier & Press, Change in federal attitude on marijuana will prompt research of risks, benefits (June 26)

TIMING IS EVERYTHING

It’s a crime for state and local officials to “corruptly” solicit, accept, or agree to accept “anything of value from any person, intending to be influenced or rewarded” for an official act. That’s a bribe, prohibited by 18 USC 666.

Last week, the Supreme Court ruled that 666 only applies to bribes, not gratuities. The law prohibits state and local officials from accepting bribes that are promised or given before the official act. But gratuities, which are given after the facts, are not covered.

An Indiana mayor got $13,000 after his city bought a million bucks worth of garbage trucks from a local dealer. He said it was for “consulting,” and the government couldn’t prove the deal was in place before the truck purchase. But the prosecution argued that didn’t matter, because the gratuity after the fact was as illegal as the bribe would have been.

Not so, the Supremes said. “State and local governments often regulate the gifts that… officials may accept. Section 666 does not supplement those state and local rules by subjecting 19 million state and local officials to up to 10 years in federal prison for accepting even commonplace gratuities.”

Snyder v US, Case No 23-108, 2024 USLEXIS 2843 (June 26, 2024)

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