This is a copy of the newsletter sent to subscribers in the federal prison system on April 21, 2024.

Sentencing Commission Announces Slate of Fall Amendments – LISA Newsletter for April 22, 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 17

Sentencing Commission Takes A Whack At Acquitted Conduct
BOP Give Up On FCI Dublin
Pot Prisoners Doubt Biden’s Second Chance Month Talk
4th Issues Expansive Compassionate Release Decision

SENTENCING COMMISSION TAKES A WHACK AT ACQUITTED CONDUCT

The US Sentencing Commission yesterday adopted a slate of proposed amendments to the Guidelines, finally addressing the acquitted conduct issue that has bedeviled the Commission and Supreme Court for the past two years.

SCOTUS sidestepped the question last year, sitting on 13 certiorari petitions raising the question of whether sentencing for acquitted conduct – that is, conduct for which a defendant has been found not guilty by a jury – is constitutional. At the prodding of the Dept of Justice, SCOTUS finally denied the cert petitions last July, with several justices saying they would wait for the Sentencing Commission to address the issue.

The acquitted conduct Guidelines amendment will redefine “relevant conduct” under USSG 1B1.3 to exclude conduct for which a defendant was acquitted in federal court. This change is significant because judges must rely on “relevant conduct” to set the Guidelines sentencing range.

For example, if a defendant is convicted of distributing cocaine but acquitted of selling heroin, the amount of heroin that the government said he had sold currently be factored into his Guidelines range as long as the judge found it more likely than not that he had actually sold it. The proposed amendment would prohibit counting the heroin regardless of whether the judge thought the defendant had done it or not.

“Not guilty means not guilty,” Sentencing Commission Chairman Judge Carlton W. Reeves said. “By enshrining this basic fact within the federal sentencing guidelines, the Commission is taking an important step to protect the credibility of our courts and criminal justice system.”

Commissioners were divided on whether to consider enforcing the acquitted conduct sentencing amendment retroactively. A majority voted to have the USSC staff prepare a retroactivity impact analysis, which is the initial step toward making an amendment retroactive.

Sen Richard Durbin (D-IL), chairman of the Judiciary Committee, said in a press release, applauded the Commission’s vote, noting that it came after he and Sen Charles Grassley (R-IA) introduced the Prohibiting Punishment of Acquitted Conduct Act of 2023. The legislation would have prohibited judges from using conduct acquitted by a jury. The measure has not gained consideration the full Senate.

Retroactivity on last fall’s criminal history amendments was vigorously opposed by some commissioners and the DOJ, which has an ex officio representative on the Commission. This time around, the Commission is considering whether to make multiple defendant-friendly changes retroactive:

• the acquitted conduct amendment;

• a change to juvenile sentences that eliminates adding 2 points for prior juvenile incarcerations of more than 60 days;

• a change to §2K2.1(b)(4)(B)(i) to provide that the 4-level enhancement gun serial number obliteration applies only if the serial number has been modified such the original number is “is rendered illegible or unrecognizable to the unaided eye;” and

• a change to Commentary in §2K2.4 to permit grouping of 922(g) gun count with drug trafficking count where the defendant has a separate 18 USC 924(c) conviction based on drug trafficking.

The bad news in the amendments was pretty much expected. For economic crimes, the recommended sentence under the guidelines increases dramatically as the amount of loss resulting from the offense increases.

As it is now written, the loss is defined in the Guidelines commentary as the higher of actual loss or intended loss. If you try to steal the Hope Diamond from the Smithsonian (value $250 million) but only get a rhinestone imitation (value $250) because the real one had been rented out to Taylor Swift for the weekend, the Smithsonian’s actual loss would be just a few bucks, but the intended loss would be a quarter billion.

In 2022, the 3rd Circuit held in US v Banks that the Commentary expanded the definition of loss beyond the ordinary meaning of “actual loss,” and thus, “intended loss” could not be used to set a defendant’s Guidelines. The new loss amendment moves the commentary section into the actual guideline, making sure that intended loss is included in setting the Guideline sentencing range and allowing the use of gain from the offense as a substitute for loss.

Whether the changes will become retroactive depends in part on USSC data on how many prisoners would be eligible for a reduction. If the number is too high, the Commission becomes concerned that the courts will be overwhelmed with reduction motions.

Finally, unhappy that the Commission last year adopted a new compassionate release guideline and made the criminal history guidelines retroactive on a 4-3 vote, Sen John Kennedy (R-LA) last week introduced the Consensus in Sentencing Act to require that changes to the Guidelines get at least five votes out of the seven Commissioners.

Ohio State University law professor Doug Berman, writing in his Sentencing Law and Policy blog, said it “cannot be pure coincidence” that Kennedy introduced the bill the day before last week’s USSC meeting. The bill stands little chance of passing before Congress expires at the end of the year.

Reuters, US panel prohibits judges from sentencing for ‘acquitted conduct’ (Apr 17)

Law360, Sentencing Commission Limits Acquitted Conduct Sentencing (Apr 17)

Press release, Durbin Applauds Sentencing Commission’s Unanimous Vote To Prohibit Acquitted Conduct From Being Used In Sentencing Guidelines (Apr 18)

Sentencing Law and Policy, Senator Kennedy introduces “Consensus in Sentencing Act” to increase USSC votes needed for guideline amendments (Apr 16)

BOP GIVES UP ON FCI DUBLIN

Bureau of Prisons Director Colette Peters imposed the death penalty on FCI Dublin (California) last week, announcing that despite the agency’s “unprecedented steps and provid[ing] a tremendous amount of resources to address culture, recruitment and retention, aging infrastructure and—most critical—employee misconduct… we have determined that FCI Dublin is not meeting expected standards and that the best course of action is to close the facility.”

The Associated Press said that the closure announcement “represents an extraordinary acknowledgment by the BOP that its much-promised efforts to improve the culture and environment there have not worked.”

Only two weeks ago, US District Judge Yvonne Gonzalez Rogers (ED CA)—who has described Dublin as “a dysfunctional mess”—appointed a special master to oversee the prison, largely in response to claims of staff retaliation against female inmates for reporting alleged misconduct.

Eight Dublin employees, including the former warden, have been charged with sexually abusing female inmates, with five having pleaded guilty.

The BOP has not provided a timeline or details about the shutdown, but rather has simply framed its planning for the move as “ongoing.” Peters was quoted in the San Jose Mercury as saying, “The closure of the institution may be temporary but certainly will result in a mission change.”

No employees will lose their jobs as a result of the planned closure, the BOP said, but they may have to move.

Susan Beatty, a lawyer representing a number of Dublin inmates, said plaintiffs’ attorneys were “inundated” with calls from Dublin inmates on Monday, many of whom said they were only told of the closure that morning, given trash bags, and told to pack out.

At a rally last Friday outside the prison, a group called Dublin Prison Solidarity Coalition demanded that abused inmates be released. According to KPIX-TV, the advocates said that “chaos unfolded” at the facility since the announcement, “traumatizing incarcerated people who have already been subjected to immense harm by the BOP, including rampant staff sexual abuse, retaliation, and medical neglect.”

Associated Press, Bureau of Prisons to close California women’s prison where inmates have been subjected to sex abuse (Apr 15)

Courthouse News Service, Feds shuttering scandal-ridden Bay Area women’s prison (Apr 15)

San Jose Mercury News, Scandal-plagued FCI Dublin women’s prison to close after years of concerns over sexual abuse, retaliation (Apr 15)

KPIX, Rally urges FCI Dublin inmates released as prison at center of sex abuse scandal closes (Apr 19)

POT PRISONERS DOUBT BIDEN’S SECOND CHANCE MONTH TALK

President Joe Biden marked “Second Chance Month” on Friday by touting the administration’s mass marijuana pardons. Marijuana Moment said the statements suggesting possible clemency come amid heightened expectations about a federal marijuana scheduling action later this year.

Not that federal marijuana prisoners are buying it. Some are calling out Biden “for not yet honoring his campaign promise to free “everyone” behind bars for pot even as the President suggests in public remarks he’s already fulfilled that pledge.

Inmates told the New York Post that Biden’s quest for a second term could only be helped by releasing federal marijuana trafficking defendants “after critics denounced as a PR stunt Biden’s 2022 mass-pardon for up to 6,500 people with simple pot possession convictions,” of whom none was locked up.

“When a political candidate ignores the social issues of his constituents, he is destined to lose,” one inmate said.

Marijuana Moment, Biden, Harris And Top DOJ Official Promote Marijuana Pardons While Commemorating ‘Second Chance Month’ (Apr 13)

NY Post, Pot inmates call out Biden for saying he’d free them ahead of another 4/20 in prison (Apr 19)

4TH ISSUES EXPANSIVE COMPASSIONATE RELEASE DECISION

Lanny Davis was in the 8th year of a 210-month sentence drug conspiracy sentence when COVID hit. He filed for 18 USC 3582(c)(1)(A) compassionate release for medical reasons and because he should no longer be a career offender since one of his predicate offenses was no longer considered a crime of violence.

The district court denied Lanny’s motion. The district court rejected Lanny’s COVID claims, and held his career offender argument should be raised in a 2255 motion. What’s more, the district court held his release would not be justified under the 18 USC 3553(a) sentencing factors because Lanny had only served half of his sentence and 210 months was needed because of the seriousness of his crimes and risk of recidivism.

Last week, the 4th Circuit reversed, holding that the district court wrongly failed to consider whether Lanny’s career-offender status claim was an extraordinary and compelling reason for release. “Years after Davis was sentenced,” the 4th said, “this Court held that a 21 USC 846 conspiracy conviction… is not categorically a “controlled substance offense” for purposes of the career offender guidelines… If Davis were sentenced after that decision, he would no longer be designated a career offender…”

In addition, the Circuit said, Guidelines Amendment 782—added in 2014— retroactively lowered the base offense level for Lanny’s conviction by two points, but because Lanny was a career offender, he was not eligible for the reduction. “Today,” the 4th said, “Davis would not be sentenced as a career offender [and he would be] eligible for the retroactive two-point reduction…”

If Lanny “were sentenced today,” the Circuit said, “his guidelines range would be 92 to 115 months—about half of his 210-month sentence.” The 4th said the Supreme Court’s 2022 Concepcion v US decision’s “broad reasoning permits federal judges to think expansively about what constitutes ‘extraordinary and compelling reasons’ for release, absent specific congressional limitations. And the Sentencing Commission’s latest guidance goes a long way to resolve any remaining questions of congressional intent not answered by the Supreme Court’s decision.”

The 4th also concluded that “given the mitigation evidence Davis supplied, the substantial changes in law between the original sentencing and today, and the potentially gross sentencing disparity created by those changes, the district court’s explanation of the 3553(a) factors is insufficient.”

US v Davis, Case No 21-7325, 2024 USApp. LEXIS 9399 (4th Cir, Apr 18, 2024)

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