Fair Sentencing Act Courts Fill in the Blanks – Update for September 15, 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.

CONGRESS PAINTS IN BROAD STROKES…

brush200915When Congress passed the First Step Act, it authorized retroactive application of the 2010 Fair Sentencing Act in just 222 words. Two cases last week, which fill in the fine points that the statute leaves unaddressed, do so with over 5,000 words, and that number is a small percentage of all the cases since 2018 interpreting § 404 of First Step.

Still, the devil’s in the details, and last week’s decisions answer some questions § 404 leaves ambiguous. One is what constitutes “a complete review on the merits.” A second is exactly what prior Guidelines determinations by the court may be revisited on a § 404 resentencing.

Richard Hoskins pled guilty to a crack offense in 2009, making a Federal Rule of Criminal Procedure 11(c)(1)(C) agreement (a deal in which the actual sentence is negotiated, and the court must take it or leave it) to 327 months. The deal let him dodge a mandatory life sentence. The Fair Sentencing Act dropped his plea Guideline range to 262-327 months, but when he petitioned for § 404 relief, his district court issued an order saying that it believed he was not eligible, and even if he were eligible, his sentence should stay at 327 months. However, the court invited Rich and the government to submit “persuasive objections” to what the court proposed to do.

Despite the parties’ filings, the court denied Rich a sentence reduction. Last week, the 8th Circuit affirmed, despite Rich’s objections that the judge’s announcement before briefing of what he intended to do deprived Rich of the right to be heard.

On appeal, the government conceded that the district court was wrong (in that Rich was clearly eligible for § 404 reduction), but it argued the court had given Rich the review “on the merits” that § 404 promised.

hearme200406Section 404(c) precludes a successive FSA motion if a previous motion was “denied after a complete review of the motion on the merits.” While “complete review on the merits” has not been addressed before, the 8th said it “means that a district court considered petitioner’s arguments in the motion and had a reasoned basis for its decision.” Here, the district court’s final order stated that it had considered the parties’ briefs and exhibits, and it briefly explained why the court concluded that Rich’s initial sentence was ‘sufficient but not greater than necessary to address the essential sentencing considerations’.” This was sufficient to satisfy the Circuit that the district court had exercised its discretion, which was apparently the key to determining that Rich had gotten a “complete review on the merits.”

fivegrams200915Meanwhile, back in Oklahoma, when Dymond Brown was sentenced for five grams of crack back in 2007, he was held to be a Guidelines career offender for, among other reasons, feloniously pointing a firearm at another person. (“Career offender” status sends a defendant’s sentencing range into the stratosphere, in Dymond’s case to 22 years for five grams of cocaine base instead of the five years he would have gotten otherwise). Between 2007 and 2018, the 10th Circuit reversed course on the Oklahoma “feloniously pointing a gun” offense, and decided it was not a crime of violence after all (because one could commit the offense without employing or threatening violence).

Dymond filed a § 404 motion, and argued that the district court should consider sentencing law as it existed the day Congress passed the First Step Act in 2018. Predictably, the government argued that although Dymond should never have been a career offender, the district court could not recognize that fact in a § 404 resentencing. The district court agreed with the government, and resentenced him to a reduced career offender sentencing range of 210 months.

For a non-lawyer, the notion that someone was sentenced to an extra 17 years because of a court’s mistake in applying the law, but should not be able to correct that error, is both shocking and nonsensical. The government, of course, was able to argue for precisely that notion without a moment’s hesitation or shame.

error161022Fortunately, the 10th Circuit is made of better stuff than the U.S. Attorney’s office. It sided with Dymond. While a § 404 resentencing is a limited one, still, the sentencing judge must calculate the defendant’s correct Guideline range. “When the court calculates a defendant’s Guideline range,” the 10th said, “it implicitly adopts the underlying legal conclusions… Our holding [that ‘feloniously pointing’ was not a violent offense] was not an amendment to the law between Dymond’s original sentencing and his First Step Act sentencing; it was a clarification of what the law always was… If the district court erred in the first Guideline calculation, it is not obligated to err again. What reasonable citizen wouldn’t bear a rightly diminished view of the judicial process and its integrity if courts refused to correct obvious errors of their own devise that threaten to require individuals to linger longer in federal prison than the law demands? Especially when the cost of correction is so small?”

Thus, when the correction is a clarification of the law, not an amendment, a § 404 resentencing should consider it. Dymond will get resentenced with a correct, lower Guidelines sentencing range.

United States v. Hoskins, 2020 U.S. App. LEXIS 28190 (8th Cir. Sept 4, 2020)

United States v. Brown, 2020 U.S. App. LEXIS 28454 (10th Cir. Sept 9, 2020)

– Thomas L. Root

Six Months Later, BOP Making No Progress on COVID-19 – Update for September 13, 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 GRINDS ON

You’d think, reading enough BOP blandishments about its “Action Plan” to address the COVID-19 pandemic that today, six months after the pandemic began, we’d be doing better. Instead, thehe number of inmates sick with the virus climbed above 2,000 for the fourth time (May 5, June 3, June 7 and July 6), standing last night at 2,033, up 4% from last week’s 1,947. The number of sick staff has fallen 2%, from 643 to 631. The number of facilities with outbreaks has increased by two, from 112 to 114, representing 93% of all institutions (an all-time high).

BOPSickInmates200913

The BOP has done enough COVID-19 tests as of last night to test 36% of the BOP inmate population, if the BOP were testing each inmate once (which it is definitely not doing). Twenty-five percent of all tests are positive for COVID.

The Sentencing Resources Counsel for the Federal Defenders organization last week issued a blistering review of the BOP’s COVID-19 response, quoting Joe Rojas, a BOP employee and regional vice president of the American Federation of Government Employees Council of Prison Locals. “They’re making the virus explode.” The report identifies 19 BOP inmates “who died in BOP custody after filing —and in some cases, even after being granted—requests for release” and note that “at least four individuals — Adrian Slarzano, Gerald Porter, Robert Hague-Rogers, and Marie Neba — have died of COVID-19 after either testing negative or after BOP erroneously pronounced them ‘recovered’.” It noted the Washington Post’s description of prison response to COVID-19 as exemplifying “a culture of cruelty and disregard for the well-being of incarcerated people,” and described FMC Carswell, a women’s medical facility, as a “house of horror.”

plague200406The report observes that because of the First Step Act of 2018, inmates may file their own motions for compassionate release, but it complains that the 30-day mandatory exhaustion period before filing, “coupled with DOJ’s routine opposition, prevents vulnerable defendants from obtaining critical relief.” Significantly, the Report notes that “based on a survey of defense attorneys representing clients across the country, we are not aware of a single BOP-initiated motion for compassionate release based on heightened risk of severe illness from COVID-19 infection.”

Things are unlikely to improve in the coming months. The Institute for Health Metrics and Education (part of the University of Washington), predicts that the daily US death rate, “because of seasonality and declining vigilance of the public, will reach nearly 3,000 a day in December. Cumulative deaths expected by January 1 are 410,000.” Current deaths stand at 197,000. this is 225,000 more deaths from now until the end of the year.

To make matters worse, prisons are bracing for simultaneous outbreaks of the flu and COVID-19 as the weather turns colder. “The flu regularly spreads through prisons and jails in the US for some of the same reasons that COVID-19 does,” the Verge reported last week. “The facilities pack vulnerable people in close quarters, with limited access to soap or other ways to protect themselves against an infectious disease. Handling a single outbreak is already a struggle in these places, which often don’t do enough to protect the health of the people living in them. Now, they may have to handle two.”

plagueB200406Flu shots are offered to all BOP staff and older and health-compromised inmates, “but those guidelines don’t mean most inmates in the US get flu shots; outbreaks regularly happen in prisons where most inmates aren’t vaccinated.”

In the continuing and deadly game of COVID-19 whack-a-mole, the BOP is battling major outbreaks (over 100 cases) at FDC San Diego, Big Spring, USP Leavenworth, Coleman, Petersburg Low and Victorville. Other significant infections are going on at FTC Oklahoma, Waseca, FCI Miami, Forrest City and FDC SeaTac.

A Seattle-area newspaper published a story last week alleging that a BOP CO came to work one day in August with a fever and headache, spreading the virus throughout the facility before his shift ended. The paper said FDC SeaTac violated its own protocols of taking every staff person’s temperature before each shift, thus letting the coronavirus into the facility. As of last night, FDC SeaTac reported 46 sick inmates and seven sick staff.

whack200602

CoreCivic, the private prison operator that runs facilities holding immigration detainees and thousands of federal prisoners, is getting grilled as well. New Mexico’s congressional delegation wrote to ICE, Marshals and CoreCivic last month about conditions in Cibola County Correctional Institution, a CoreCivic immigration detention prison. CoreCivic took troublingly long to realize that it had “a massive outbreak in its facility endangering the safety of inmates, detainees, staff and the community,” the delegation said, noting that the state Department of Health had to direct CoreCivic to conduct mass testing. The delegation was also concerned that “correctional officers working at the Cibola facility are not wearing adequate [personal protective equipment] when escorting COVID-19 positive inmates into the local hospital.”

Neither any of the agencies nor CoreCivic has responded.

Sentencing Resource Counsel for the Federal Public Community Defenders, The COVID-19 Crisis in Federal Detention (Sept. 9, 2020)

The Verge, Prisons battling COVID-19 face another disease threat this fall (Sept. 11, 2020)

IMHE, Model Updates for Sept. 3, 2020

South Seattle Emerald, SeaTac Federal Detention Center Exposed Prisoners to the Coronavirus by Allegedly Failing to Follow Coronavirus Protocols (Sept. 7, 2020)

Santa Fe New Mexican, Prison’s virus outbreak brings fear to rural area (Sept. 12, 2002)

– Thomas L. Root

 

COVID Deadlier in Prison (No Surprise There) – Update for September 11, 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 THIS WEEK

corona200313The reopening of visitation, even with the restrictions the Federal Bureau of Prisons anticipates, suggests that the BOP is getting a handle on COVID-19. But the numbers hardly suggest that. As of last night, 1,834 inmates were sick, about the same as a week ago. Sick staff remained at 648, and only one additional inmate died during the week, bringing the total to 125. But COVID-19 remains stubbornly present in 113 institutions, 91% of Bureau of Prisons facilities, one more than a week ago.

A disturbing report from the Council for Criminal Justice issued last week found that the COVID-19 mortality rate within prisons is 61.8 deaths per 100,000 inmates, twice that of the general public mortality rate, even adjusted for the sex, age and race or ethnicity of those incarcerated. The rate of COVID-19 cases reported by state and federal prisons is nearly 7,000 cases per 100,000 people in prison, more than four times the rate of confirmed cases per 100,000 US residents. Geographically, prisons with the highest number of COVID-19 cases are those located in the southern region of the U.S., and in prisons with over 1,000 inmates. The highest COVID-19 mortality rates come from large prisons and those in the midwest. Overall, the BOP COVID mortality rate is twice that of the general population.

A Minnesota TV station reported last Friday that Ambjar Anderson, the chief steward of the BOP staff union at FCI, told reporters that a month ago “the prison received a couple of buses of inmates. One bus was mostly comprised of positive COVID-cases.”

distancing200911
“We’ve had the proper PPE in place and that’s what helped us mitigate things so far,” Anderson was quoted as saying, but “it’s really hard when the Bureau sends a busload of them. The numbers – it’s spreading – because it’s a prison and it’s hard to social distance.”

Anderson told the station that “we have staff who have families and communities that they are living in and going to and they care about and they don’t want to pass it around to everyone, yet now it’s spreading in our institution.”

A US Sentencing Commission study of the first year of the First Step Act, released last week, reported that 145 motions seeking compassionate release were granted through the end of September 2019, a five-fold increase from fiscal year 2018. Two thirds were filed by the defendant, one third by the BOP. The average length of the sentence reduction was 68 months in fiscal 2018; 84 months in 2019. The average months of time served at the time of release also increased from 70 months to 108 months.

judge160229No stats are yet available for the COVID-19 series of compassionate releases. However, last week a Colorado Politics review of 42 court opinions issued between March 1 and August 31 the District of Colorado found that only in five coronavirus-related instances did a judge agree to “compassionate release.” Two judges who oversaw half of the requests did not grant a single release. One of them contended that an inmate who contracted COVID-19 in prison should remain there so as not to infect others.

Council on Criminal Justice, COVID-19 in State and Federal Prisons (September 2, 2020)

KIMT-TV, Rochester, Minnesota, Outbreak Concerns at FCI Waseca (September 4, 2020)

US Sentencing Commission, The First Step Acct: One Year of Implementation (Aug 31)

Colorado Politics, Federal judges in Colorado granted 12% of pandemic-related early release requests (September 1, 2020)

– Thomas L. Root

Sobering § 2255 Lessons – Update for September 10, 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.

A COUPLE OF CAUTIONARY 2255 DECISIONS

A pair of Circuit decisions on 28 U.S.C. § 2255 motions last week did not deliver a lot of hope to petitioners.

bribeB160627In one 6th Circuit decision, former Cuyahoga County Commissioner Jimmy Dimora got a number of bribery-related convictions vacated because of the intervening 2016 Supreme Court decision in McDonnell v. United States. The decision is instructive for public officials and employees caught up in so-called pay-to-play cases, where they are accused of trading official favors for profit. But the cautionary note for the rest of § 2255 movants relates to cumulative error.

Jimmy, like many § 2255 movants, argued that even if no single error he cited justified reversal, the cumulative effect of the many errors he cited was to violate his due process rights. “Cumulative error” is a favorite catch-all issue, added to the end of a § 2255 motion to give it sufficient heft.

Thehe cumulative error doctrine provides that an aggregation of errors that are in and of themselves insufficient to require a reversal can nevertheless yield a denial of a defendant’s 5th Amendment right to a fair trial, and thus – by the sheer weight of the pile of mistakes, require a mistrial.

As a circuit court of appeals observed in a case almost 30 years ago, “the possibility of cumulative error is often acknowledged but practically never found persuasive.” The doctrine justifies reversal only in the unusual case in which synergistic or repetitive error violates the defendant’s constitutional right to a fair trial.

The 6th Circuit poured additional cold water on the doctrine last week. The Circuit doubts that “cumulative error” has any place in a § 2255 motion: “We note, however, that we are uncertain whether this theory of prejudice is available to § 2255 petitioners… And we are especially uncertain that it is available where one of two claimed errors is an evidentiary error… But we leave these questions for the district court to consider on remand after it assesses the harmlessness of the instructional error independent of any cumulative effect.”

shootemup161122Meanwhile, in the 5th Circuit, Lauro Valdez used a convenient handgun to shoot a man Lauro said was trying to break in. His self-defense claim might have worked, except that after Lauro shot him once, he walked over to the prostrate victim and pumped more three rounds into him.

An old lawyer I knew used to say, “Two bullets or two bodies, and you’ve got a problem.” That was Lauro’s predicament. He could explain the one shot at an intruder. The other three a minute later – not so easy.

Lauro was charged with being a felon-in-possession of a gun in violation of 18 USC § 922(g). His lawyer told him that he faced a 24-36 month Guidelines range if he were convicted. That was wrong, because USSG § 2K2.1(c)(1) has a cross-reference for murder – which clearly applied here – that would raise Lauro’s Guidelines to at least 324 months. That meant Lauro would undoubtedly get 10 years, the maximum sentence for felons-in-possession allowed by statute.

Being advised wrongly by his lawyer, Lauro figured he would use the “justification” defense at trial, arguing he had just grabbed a gun to protect himself from an imminent threat. This might have worked for him, too, except that on the eve of trial, he learned that his wife would testify the gun had been on Lauro’s nightstand a week before the shooting, way too long ago to let him argue a sudden need to possess a gun against an imminent threat.

Lauro decided to plead guilty. At the change-of-plea hearing, the judge explained that § 922(g) carried a 120-month statutory maximum, and that regardless of what his lawyer might have said about a possible sentence, “it’s not a guarantee and it’s not binding on this Court.”

Lauro, of course, agreed. Defendants in those hearings usually are able to process nothing the judge says, and Lauro was no exception.

At sentencing, the judge gave Lauro the full 10 years, using the Guidelines cross reference for murder. Lauro later claimed in his § 2255 motion that his lawyer had predicted only 36 months, and had said nothing about a murder cross-reference to the Guidelines.if he had known about the Guidelines’ murder cross-reference, Lauro wrote in his motion, he would not have waived his right to a jury trial. His lawyer admitted in an affidavit that he had completely missed the murder cross-reference when he advised Lauro.

lawyer15170317The issue when a defendant alleges his counsel’s errors led him to take a plea rather than go to trial is not whether the defendant could have won the trial, but instead only whether a rational defendant would have chosen to go to trial. Here, the 5th Circuit held Lauro’s lawyer’s performance was not deficient, because both he and the court told Juan about the 10-year statutory maximum. The Circuit so much as said that a competent lawyer can’t figure out the Guidelines, so misadvising his or her client was not deficient representation.

What’s more, the 5th said, Lauro suffered no prejudice, because it was clear that “rather than risking conviction by the jury (with no sentencing benefits whatsoever), Lauro hoped to parlay a late guilty plea into a credit for acceptance of responsibility and additional benefit from cooperating or rendering substantial assistance. In other words, knowing that wifey was going to blow up his defense, the Circuit said, Lauro did what any rational defendant would do.

One judge dissented, as he should have, from this terrible decision. Any rational defendant – being told that if he pled, he would get 120 months and if he went to trial, he would get 120 months – would take his chances with a jury.

Dimora v. United States, Case No. 18-4260, 2020 U.S. App. LEXIS 27675 (6th Cir Aug 31, 2020)

United States v. Valdez, Case No. 18-40495, 2020 U.S. App. LEXIS 27909 (5th Cir. Sep 1, 2020)

– Thomas L. Root

Havis: the 6th Circuit Gift That Keeps on Giving – Update for September 9, 2020

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HAVIS MEANS CONSPIRACY DOESN’T COUNT FOR CAREER OFFENDER, EITHER

You remember United States v. Havis, the 2019 en banc decision in which the 6th Circuit held that the Guidelines’ definition of ‘controlled substance offense’ did not include attempt crimes, meaning that a defendant’s prior conviction for attempted drug distribution could not be counted to make him a career criminal. (If you don’t recall it, refresh yourself here).

snakes200909Eddie Valesquez made a deal over the phone with a buddy of his to kill a troublesome witness. (Note: Contrary to popular culture’s suggestions to the contrary, murdering a witness is both illegal and a bad idea). In fact, Eddie found out that the mere planning such a murder problematical: he was convicted of an 18 USC § 1958 conspiracy to commit murder for hire.

Eddie’s prior drug conspiracy conviction was used at sentencing to make him a career offender under the Sentencing Guidelines, which raised his sentencing range to stratospheric heights, resulting in a 262-month term in prison.

Last week, the 6th Circuit reversed the sentence. It ruled that “although the specific facts of Havis involved an attempt crime, its reasoning applies with equal force to other inchoate crimes not listed in the text of § 4B1.2(b). Accordingly, we have acknowledged that, in light of Havis, conspiracy to distribute controlled substances is not a “controlled substances offense” under § 4B1.2(b).”

United States v. Cordero, Case No. 19-3543, 2020 U.S. App. LEXIS 28128 (6th Cir. Sep 3, 2020)

– Thomas L. Root

Visits Are Back… Sort Of – Update for September 8, 2020

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JAIL-STYLE VISITS ARE BETTER THAN NO VISITS AT ALL

The Bureau of Prisons announced last week that visitation at federal prisons will resume by October 3rd, but that all visits will be county jail-style: non-contact, and social distancing between inmates and visitors will be enforced with plexiglass or similar barriers, or physical distancing. Inmates in quarantine or isolation will not allowed visits.

jailvisit200908The BOP plan will permit every inmate up to two visits a month. Visitors will be symptom-screened and temperature-checked, and both inmate and visitor must wear masks. Tables, chairs and other “high-touch” surfaces will be cleaned following the completion of visiting each day, the BOP said.

Kevin Ring, president of FAMM, said the BOP’s action represents a “first step” for anxious families who have gone months without seeing loved ones. But he said the proposed restrictions, particularly the prohibition on physical contact, will be “difficult.”

Leaders of BOP employees’ unions think the visits will be difficult, too, but for different reasons. They question the timing of the decision, inasmuch as it’s being instituted just as flu season begins and – experts predict – the coronavirus pandemic may worsen again. Some suggest the BOP is opening “Pandora’s box.”

In order to ensure inmates all get at least two visits per month, visitation days could occur seven days per week, according to Aaron McGlothin, the union leader for employees at FCI Mendota, California. That means more risks for exposure for staff, he said.

pandora200908“I’m seeing a lot of anger,” said Joe Rojas, the Southeast regional vice president for the national prison union. “We’re coming to the flu season, there’s still a pandemic and then they’re putting up visiting.” Rojas said he knew visitation was important to inmates, and he does not want to remain closed to visits. But “this is important for keeping them safe,” he said.

McGlothin said the BOP should try other methods first, such as allowing inmates to use Zoom or Skype to video chat.

At the same time, questions are now being asked about the longer-term psychological effects of pandemic restrictions on prisoners. Elizabeth Kelley, an attorney and author who has written two books on mental illness and prison, told Forbes magazine that she is concerned that prolonged lack of visitation, along with other COVID-19 limitations, may contribute to a spate of mental illnesses among inmates. “Someone who does not have diagnosable mental illness before going to prison,” Kelley said, “may very well develop one during the pandemic because of profound anxiety, depression and later PTSD caused by the trauma associated with the COVID-19 conditions in federal prison.”

BOP Press Release, Bureau to Resume Social Visitation (September 1, 2020)

USA Today, Federal prisons resume visitation in October, 7 months after COVID-19 forced suspension (September 1, 2020)

Impact 2020, Federal prisons are lifting COVID-19 visitor restrictions — and workers are worried (September 3, 2020)

Forbes, Mental Fatigue, Anxiety and Hopelessness, Welcome to Today’s American Federal Prison Experience (August 28, 2020)

– Thomas L. Root

Procedure Matters on a 2241 Motion, 4th Circuit Says – Update for September 4, 2020

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JUST BECAUSE A 2255 WON’T WORK DOESN’T MEAN A 2241 WILL

A military aphorism credited to more than one general (the oldest of whom was General Omar Bradley) is “amateurs talk strategy, but professionals talk logistics.” A post-conviction adjunct might be, “clients talk substantive issues, but lawyers talk procedure.”

nuns200903What we mean is in post-conviction proceedings on federal convictions, the best case on the planet (imagine a newly-discovered busload of nuns who all swear they saw you helping your mother weed her garden 50 miles from the back that was being robbed at the same time) does not help you if you have no procedural course for getting back into court. And the procedural snares of 28 USC § 2255 are many and varied.

Lee Farkas was charged with various white-collar fraud offenses, and the government got court permission to freeze all of his considerable assets before trial. The purported reason is to be sure there is enough money to pay criminal forfeiture and restitution if the government wins, but the real reason, of course, is that it hamstrings the defendant, making it impossible to afford a defense that might level the playing field with the U.S. Attorney’s Office.

And it worked (for awhile). Lee had a lot of trouble affording the lawyers he needed. The result showed it: Lee was convicted, and got 360 months in prison.

A few years later, after Lee had filed and lost a 28 USC § 2255 motion, the Supreme Court ruled in Luis v. United States that freezing all of a defendant’s innocent assets violated the 6th Amendment. Based on that decision, the 4th Circuit ruled that criminal forfeiture statutes could not reach assets that might be substituted for forfeitable assets if the defendant lost.

Based on these decisions, Lee filed a 28 USC § 2241 petition for habeas corpus, arguing that under the 28 USC § 2255(e) savings clause, he could use the § 2241 to demand a new trial, because the seizure had violated the 6th Amendment and statute. Last week, the 4th Circuit shot him down.

"Actual innocence" is important for procedural reasons as well as substantive ones...
“Actual innocence” is important for procedural reasons as well as substantive ones…

The Circuit followed its three-part test defining the “limited circumstances” under which § 2255 will be “inadequate to test the legality of the prisoner’s detention.” First, at the time of conviction, the settled law of the Circuit or the Supreme Court must have established the conviction’s legality. Second, after the prisoner’s direct appeal and previous § 2255 motion, the substantive law must have changed so that the conduct of which the prisoner was convicted is no longer criminal or the sentence is illegally extended. And third, the prisoner cannot satisfy the gatekeeping provisions of § 2255(h) because the new rule is not one of constitutional law.

The 4th said a constitutional issue can never be heard on a § 2241 motion, because a § 2255 motion is intended for adjudicating such claims. What’s more, Lee was not claiming that he was actually innocent of the offense or sentence, but rather that taking his money was a fundamental defect in the proceeding. That is not good enough for a § 2241, the Circuit said.

Farkas v. Warden, Case No. 19-6347, 2020 U.S. App. LEXIS 27233 (4th Cir. Aug. 26, 2020)

– Thomas L. Root

Judging the Whole Person in Fair Sentencing Act Proceeding – Update for September 3, 2020

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CRACK FSA RESENTENCING MUST CONSIDER MOVANT’S PRISON RECORD

Shawn Williams was sentenced in 2005 to 262 months in prison for a crack cocaine trafficking offense. Five years later, Congress finally bowed to Sentencing Commission pressure and public opinion, passing the Fair Sentencing Act (FSA).  That Act changed the draconian penalties for crack cocaine (which had considered 10 grams of crack to be the equivalent of one kilogram of powder cocaine) to bring them more in line with other drug offenses.

crack-coke200804Not that the change did much for Shawn. In order to satisfy some of the more puritanical members of the Senate – such as the unlamented former Sen. Jefferson Beauregard Sessions III –  the changes made by the FSA were not retroactive. This meant that people like Shawn were serving sentences that were grossly disproportionate to sentences being imposed on people with the same drug quantity who were being sentenced after the FSA went into effect.

The First Step Act fixed that eight years later, making the FSA retroactive. Now, Shawn could apply to his sentencing court for relief, because the Act – when applied to Shawn –  to reduced his statutory minimum sentence to 10 years from 20. However, for reasons not relevant to this blog, the FSA did not reduce his advisory Guidelines sentencing range.

Shawn nevertheless filed a motion to reduce his sentence under the retroactive FSA, arguing, among other things, that his good conduct in prison warranted a reduced sentence. He noted that he had not failed a single drug test, that he had helped 13 other prisoners earn their GEDs, and that he had held the same job for over eight years. The district court denied his motion, however, explaining that it had considered the 18 USC § 3553(a) sentencing factors (including Shawn’s prior drug convictions, and concluded that the 262-month sentence “remains sufficient and necessary to protect the public from future crimes of the defendant, to provide just punishment, and to provide deterrence.” The court did not address Shawn’s prison record.

A sidebar here: Back in 2011, the Supreme Court ruled in Pepper v. United States that “consistent with the principle that the punishment should fit the offender and not merely the crime… a sentencing judge [may] exercise a wide discretion in the sources and types of evidence used to assist him in determining the kind and extent of punishment to be imposed within limits fixed by law, particularly the fullest information possible concerning the defendant’s life and characteristics.” In other words, Pepper held, when a case comes back for resentencing – often years after the first sentencing, during which the defendant was doing time in prison – the sentencing court may consider the defendant’s prison record (such as good conduct and completion of educational or rehabilitative programs) in the resentencing.

goodboy200903But Pepper did not say that the district court was required to do so.  The issue Shawn raised on appeal was  whether the sentencing judge was at least required to acknowledge post-sentencing conduct raised by the defendant, and explain how that did or did not factor into the resentencing decision.

Last week, the 6th Circuit reversed the sentencing court, sending the FSA resentencing back to the district court. The 6th held that while the district court “need not respond to every sentencing argument… the record as a whole must indicate the reasoning behind the court’s sentencing decision.” Here, the district court did not mention Shawn’s prison conduct, and “that conduct by definition occurred after his initial sentencing in 2005, which means that neither the record for his initial sentence nor for his First Step Act motion provides us any indication of the district court’s reasoning as to that motion.”

The case was remanded “for further consideration of Williams’ good-conduct argument.”

United States v. Williams, 2020 U.S. App. LEXIS 27219 (6th Cir. Aug 26, 2020)

– Thomas L. Root

A Little Arithmetic Lesson Here – Update for September 2, 2020

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“TWO THIRDS” DOES NOT EQUAL 65%, AND 65% EQUALS NOTHING

I have had a lot of questions asked recently about the new line item in the Federal Bureau of Prison’s Sentencing Monitoring Computation Data form. The line lists the date on which an inmate will have completed 66.67% of his or her sentence.

SMCD200902The Sentencing Monitoring Computation Data form is the calculation used by the BOP to determine when an inmate is to be released. A lot of what is on the form is a mystery, but not the two-thirds date. That date, simply enough, is used by the BOP for those 60-year old plus nonviolent inmates who may qualify for the elderly offender home detention program under 34 USC § 60541(g).

false200902I have had nearly as many questions about the “65% Law,” some legislative initiative that supposedly increases good conduct time from 15% of an image’s sentence to 35%.

The “two thirds” line item has nothing to do with the “65% Law.” In fact, the only things that have to do with the “65% Law” are fairies and unicorns, because they are all just as real. Which is to say, not real at all.

THERE IS NO 65% LAW. PERIOD. The HEROE Act passed by the House, as full of goodies as it is for prisoners (mandatory placement of vulnerable and 50+ people in home confinement, for example), includes no change in good time. And HEROES stands scant chance of passing the Senate.

unicorn200902

There may be some sentencing benefits in a Senate-House compromise COVID-19 bill, as some are urging, but a change in good-time will not be one of them.

HEROES Act, HR 6800 (passed House May 25, 2020)

New York Daily News, Demand criminal justice reform in the next COVID relief bill (August 28, 2020)

– Thomas L. Root

4th Circuit Hands Down a Primer on Brady – Update for September 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.

A “VERY BRADY” EN BANC DECISION ISSUES FROM RICHMOND

The 4th Circuit last week released an en banc decision reversing denial of a federal habeas corpus filed by a North Carolina state prisoner who has spent 44 years in prison for a rape he in all likelihood had nothing to do with. The 93-page decision (with an additional 28-page dissent) is a virtual Brady primer, analyzing almost every element in a successful Brady undisclosed-evidence claim.

Pat Brady - Roy Rogers' comical sidekick back in the 1950s – had nothing to do with Brady v. Maryland, which is deadly serious for many defendants.
Pat Brady – Roy Rogers’ comical sidekick back in the 1950s – had nothing to do with Brady v. Maryland, which is deadly serious for many defendants.

In 1976, Ronnie Long – a black man – was accused of raping a 56-year old white woman in her home. Her description of the assailant changed over time, and she identified Ronnie by sitting in a courtroom watching a parade of defendants appear in front of a judge. Not a shred of physical evidence connected Ronnie to the offense, and his alibi – he had been at a family function some distance away – seemed pretty solid.

Actually, saying that no physical evidence connected him to the scene is an understatement. The state had gathered all sorts of physical evidence at the scene, including 43 separate fingerprints and all sorts of fiber. The crime lab report found that not even one of 43 fingerprints matched the defendant’s prints, and none of the fiber connected Ronnie to the scene.

Sounds like a slam-dunk, right? Well, maybe on a level playing field. But in Ronnie’s case, the defense never saw the crime lab report, because the police falsely testified no such report existed and (needless to say) the prosecutor never produced it. Furthermore, detectives failed to disclose they had lost the only DNA sample taken from the victim. So Ronnie was convicted.

You remember Brady v. Maryland, right? Brady evidence is evidence in the hands of the prosecution that is favorable to the defendant. Such evidence must be disclosed. If you need a refresher, read this.

The 4th Circuit’s 9-6 decision rejects a state court holding that a prisoner must demonstrate “by a preponderance of the evidence,” that the withheld evidence would have changed the result at trial. The proper standard, the Court said, is a “reasonable probability of a different result,” a relaxed standard that makes much more sense, inasmuch as the defendant was wronged in the first place by having the evidence hidden from him.

The decision also rips the state court’s holding that Brady evidence must be “impeachment or exculpatory evidence” in order to be “favorable” to the accused.  Evidence may not itself impeach a prosecution witness or exculpate a defendant, but may still lead to other yet-undiscovered evidence that is impeaching or exculpatory, or – as in Ronnie’s case – simply be one piece of a cumulative mosaic that makes his guilt questionable.

The State argued that undisclosed evidence that police testified falsely about the crime lab report was not Brady material, because the cops’ testimony might have been explained as merely a “mistake, misunderstanding, or the report itself could be incorrect.” But, as the Circuit said, that has nothing to do with whether the undisclosed evidence was Brady material. While the state’s hypothetical explanations for the false testimony “may have been useful arguments for the State to make to the jury at trial, the rule is not that only unassailable evidence must be disclosed to the defense. Rather, it is clearly established federal law that any favorable and material evidence must be disclosed.”

brady200901The State said the undisclosed crime lab report – which concluded that nothing tied Ronnie to the rape – was merely cumulative, because defense counsel argued to the jury in closing that no forensic evidence tied the defendant to the crime. So the fact the jury never heard about the report, the state argued, hardly mattered. The Circuit rejected this stinker of an argument, holding that (1) everyone knows that the attorneys’ arguments are not evidence; (2) a government report showing that none of a big pile of physical evidence tied a defendant to a crime is much more persuasive to a jury than anything a defendant’s lawyer says in an argument; (3) and the cumulative effect on the jury of negative test after negative test after negative test is undeniable.

Finally, the Court noted, the very existence of evidence the police denied having had in their possession would have badly undermined the credibility of the detective witnesses.

This decision should be read by anyone with a Brady issue.

Long v. Hooks, Case No 18-6980, 2020 U.S. App. LEXIS 27138 (4th Cir. Aug 24, 2020)

– Thomas L. Root