Sentence Reduction and Davis Decisions Continue Apace – Update for August 20, 2019

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A COUPLE OF 3582(c)(2) DECISIONS… AND A HANDFUL OF DAVISES

The 9th Circuit issued two decisions last week affecting 18 USC § 3582(c)(2) sentence reductions, one good, one not so good.

... and he's getting a better sentence reduction deal than you are.
… and he’s getting a better sentence reduction deal than you are.

United States v. Hernandez-Martinez: Some people seeking 2-level reductions in their drug sentences under the 2014 Guidelines Amendment 782 were denied because at sentencing, their courts had varied downward from their Guidelines sentencing ranges, and even the new 2-level reduction would have been above their original sentence. But if a defendant had a downward departure for helping the government, the 2-level reduction remained available, regardless of how sweet the original sentence might have been.

A number of defendants have argued that the 9th’s decision in United States v. Padilla-Diaz, which upheld the limited exception for substantial assistance departures as consistent with both the governing statutes and constitutional requirements, was irreconcilable with the Supreme Court’s later decision in Hughes v. United States. Last week, the 9th Circuit shot down 23 defendants making the claim.

The 9th held that Hughes only held that a sentence imposed under a Federal Rule of Criminal Procedure 11(c)(1)(C) plea agreement is “based on” the defendant’s Guidelines as long as that range was part of the framework the district court relied on in imposing the sentence or accepting the agreement. Because the intervening Hughes decision did not conflict with Padilla-Diaz, Padilla-Diaz’s conclusion still binds the Circuit to prohibiting 2-level reductions for defendants with downward variances below the amended sentencing range.

In United States v. Sainz, the defendant filed for the 2014 sentence reduction, and the government did not oppose it. The district court, however, ruled that the defendant’s plea agreement waived the right to seek relief under § 3582(c)(2). The 9th held that if the government does not raise the plea agreement as a defense, the issue is forfeited. The district court may not raise the issue itself.

Meanwhile, several cases applying the Supreme Court’s June 2019 United States v. Davis decision came down last week:

kidnapping190820In United States v. Brazier, the 7th Circuit held that kidnapping did not categorically match the “elements clause” of 18 USC § 924(c), because it may be accomplished without force, by “inveigling” or “decoying” a person without a threat of force, and by holding the person simply by locking him or her in a room, again without threat of violence. Because Davis invalidated the “residual clause” of 18 USC § 924(c), a kidnapping conviction could no longer support a § 924(c) consecutive sentence.

In the 5th Circuit United States v. Jones case, defendants were convicted of RICO and drug crimes, and add-on § 924(c) offenses. The jury verdict did not specify which crimes were relied on as the underlying counts for the § 924(c) convictions. Because Davis held that conspiracies to commit violent crimes (such as a RICO conspiracy) could not support a § 924(c) count, the case had to be remanded for the jury to decide whether the remaining drug offenses could support the § 924(c) convictions.

Finally, the 3rd Circuit followed the lead of the 11th, and ruled that five petitioners seeking to raise Davis issues on their 18 USC § 924(c) convictions were allowed to file second-or-successive 28 USC § 2255 motions doing so.

United States v. Hernandez-Martinez, Case No. 15-30309 (9th Cir. Aug. 13, 2019)

United States v. Sainz, Case No. 17-10310 (9th Cir., Aug. 12, 2019)

United States v. Brazier, Case No. 17-2269 (7th Cir. Aug. 12, 2019)

United States v. Jones, Case No. 18-30256 (5th Cir. Aug. 12, 2019)

In re Matthews, Case No. 16-2273 (3rd Cir. Aug. 14, 2019)

– Thomas L. Root

Unwelcome Spotlight Shines on the BOP – Update for August 19, 2019

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MEDIA CRANKS UP HEAT ON BOP IN WAKE OF EPSTEIN SUICIDE

abandonprison170501The Justice Dept. last Tuesday reassigned the warden at MCC New York, where Jeffrey Epstein hanged himself nine days ago, and placed on leave two Bureau of Prison staff who had been monitoring Epstein’s unit at the time. The shakeup came as the MCC fell under intense scrutiny, with critics calling the suicide “emblematic of a neglected, understaffed and dysfunctional federal prison system.”

A day earlier, Attorney General William P. Barr decried “serious irregularities” at the MCC and criticized the BOP’s “failure” to keep Epstein secure.

USA Today said that the suicide “has cast a jarring spotlight on the nation’s largest prison system plagued for years by dangerous staffing shortages, violence and widespread sexual harassment of female officers.”

Noting the BOP’s efforts to fill up to 5,000 vacancies and its lack of a director since Mark Inch resigned a year ago, Eric Young, national president of the federal prison workers union, said, “We’ve got a serious problem.”

The Houston Chronicle reported that Epstein’s suicide is “the latest black eye for the U.S. Bureau of Prisons, the jail’s parent agency that already was under fire for the October death of Boston gangster James “Whitey” Bulger… Taken together, the deaths underscore ‘serious issues surrounding a lack of leadership’ within the BOP, said Cameron Lindsay, a former warden who ran three federal lockups, including the Metropolitan Detention Center in Brooklyn.”

shu160201Other outlets reported that “major irregularities” in the MCC Special Housing Unit contributed to Epstein not being monitored properly. Those stories were followed by reports that the irregularities were primarily due to COs “working extreme overtime shifts to make up for staffing shortages the morning of his apparent suicide,” according to Politico. A BOP source was quoted as saying that the SHU was staffed with one guard working a fifth straight day of overtime and another who was working mandatory overtime.

The New York Times reported that one of the SHU guards that day was not a full-fledged correctional officer, and neither guard had checked on Epstein for several hours before he was discovered.

By the middle of last week, the focus was on BOP staffing levels. The Marshall Project reported that the Epstein suicide “followed steep and persistent staffing shortages that exceeded the rate of decline in the federal prison population… The federal prison system lost 12% of its workforce from the start of the Trump administration through the end of 2018. Administration officials have argued that the staff drop, which resulted partly from a hiring freeze, was mitigated by a reduction in the number of federal prisoners. But… over a two-year period between Sept. 2016 and Sept. 2018, the bureau lost 10% of its employees. In that same period, the total number of federal prisoners dropped by just over 5%.”

CNN reported that the BOP continues to rely on “augmentation,” using non-correctional officers in CO positions to cover staff shortages, noting that Congress has repeatedly asked the BOP to give up augmentation, even while denying it enough budget to hire more COs. The Hill complained that “it is the failure of leadership inside the permanent Justice Department bureaucracy — one that has served multiple presidents, Republican and Democrat — to fully address the resources and cultural deficiencies” that has resulted in the staffing crisis at BOP.

Schadenfreude aside, it is rare that media attention and Congressional hand-wringing results in changes in the BOP that positively affects staff or inmates.

Washington Post, Justice Dept. reassigns warden of jail where Epstein died, puts two staffers on leave (Aug. 13)

USA Today, Jeffrey Epstein suicide casts spotlight on federal prison system riven by staff shortages, violence, sexual harassment (Aug. 12)

Houston Chronicle, Federal New York lockup draws new scrutiny in Epstein death (Aug. 12)

Politico, Jeffrey Epstein’s guards were working extreme OT shifts (Aug. 12)

The Marshall Project, Epstein’s Death Highlights A Staffing Crisis in Federal Prisons (Aug. 14)

The New York Times, In Short-Staffed Jail, Epstein Was Left Alone for Hours; Guard Was Substitute (Aug. 12)

The Hill, Deadly déjà vu: Epstein’s prison death was decades in the making (Aug. 13)

– Thomas L. Root

I’m-a Gonna Mail Myself to You – Update for August 16, 2019

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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.

IT’S ALL ON YOU, MAN

mail190816When Mario Dunham was convicted, his lawyer withdrew without filing a notice of appeal. Mario’s conviction became final on November 16, 2015. His 28 USC § 2255 motion, complaining that his lawyer failed to file a notice of appeal, appeared at the courthouse one year and two weeks later.

Of course, the deadline for a § 2255 motion under 28 USC 2255(f)(1) would have been November 16, 2016. Mario’s mailing envelope had a Nov. 28 postmark. Nevertheless, the district court gave Mario a chance to provide he had mailed it on time.

The Bureau of Prisons offers a “legal mail” system (which it calls “special mail“) to inmates for communications with lawyers, courts and legislators. The legal mail is not inspected by the BOP staff, and the date of delivery to the prison officials for mailing is noted, and becomes a filing date honored by the court system.

Mario did not use legal mail for his § 2255 motion, I suspect because legal mail would have revealed he mailed it well after the court deadline. Obviously, he could not gin up evidence that he had mailed it when he said he had, having nothing more that his naked assertion that he had put it in the housing unit mailbox by November 16th, and somehow the prison did not get that load of mail out for two weeks or so. The district court did not buy it, and last week, the 5th Circuit rejected Mario’s argument as well.

backintime190816The 5th held that the burden to prove a § 2255 motion was mailed on time always falls on the petitioner. The prisoner’s own statement that he mailed it on time is not good enough. This is why documents sent to the court should always go legal mail. Beyond that, a careful petitioner will always keep one eye on how he or she would prove timely mailing if something goes missing. Being sure the Corrections Officer handling legal mail logs the mailing and asking him or her to note what is being sent (such as “2255 motion” or “objections to report”) or something that would help prove a timely filing of whatever is being sent, is always a good idea. The BOP is supposed to log such things, but being sure it’s done right is only prudent.

giphyIn Mario’s case, the court had not just fallen off the turnip truck. It compared the § 2255 filing with all of the other filings Mario had made in the proceeding, and noted that all of them were postmarked within a day or two of the date Mario had written on the filings. The only exception was the § 2255 motion, postmarked 14 days after the date Mario had written in on the signature page.

The Court’s implication that Mario had backdated the petition is pretty clear.

United States v. Duran, Case No. 17-30428, 2019 U.S. App. LEXIS 23717, 2019 WL 3729586 (5th Cir., Aug. 8, 2019)

– Thomas L. Root

Waive Your Supervised Release Termination ‘Goodbye’ – Update for August 14, 2019

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3RD CIRCUIT USES PLEA WAIVER TO BAR SUPERVISED RELEASE EARLY TERMINATION

pleadeal180104Almost all of the 97% of federal criminal defendants who take guilty pleas do so pursuant to a plea agreement. And these days, most of those plea deals prohibit the defendant from appealing or otherwise attacking the conviction and sentence.

But up to now, no one ever thought waiver extended to supervised release. Instead, it has always been a tenet of faith that a defendant could petition the court under 18 USC § 3583(e)(1) to terminate supervised release after a year if everything had gone well.

Congress decreed that virtually every sentence of incarceration would include a post-release sentence of supervised release. Under supervised release, the post-release defendant is subject to a bevy of reporting, travel, social and financial restrictions, all overseen by a U.S. Probation Officer. On the average, a third of all former prisoners are found by courts to have violated some supervised release requirement. Given the squishy and vague conditions, not to mention the arbitrary power wielded by the Probation Officer, it’s little wonder.

Last week, the 3rd Circuit broke unwelcome new ground, holding that a plea agreement waiver of the right to challenge the sentence in any way extended even past release. Ronald Damon, according to the appeals court, “signed a plea agreement with the United States accepting responsibility for a federal crime. He served time in custody and left prison. Now, having reentered society, he wants a fresh start, free from further oversight by the federal government. So Damon asked to end his term of supervised release a few years early. He offered facts and circumstances justifying his request, and highlighted the hardships imposed by restrictions on his activities. But Damon’s present desires are controlled by a past decision: his contract with the government containing the terms and conditions of his guilty plea. Because his plea agreement precludes challenges to his sentence, and because any shortening of his supervision would amount to a change in his sentence, we will affirm the decision of the District Court.”

Waivers160215The Court said that “in the agreement, Damon waived the right to file any motion or appeal that challenges the sentence imposed… Supervised release is part of the sentence that Damon received… Damon’s motion… questions his original sentence by seeking to shorten the term of his supervised release. By its very nature, it is a challenge to the sentence imposed.”

United States v. Damon, Case No. 18-2444, 2019 U.S. App. LEXIS 23466, 2019 WL 3559045 (3rd Cir. Aug. 6, 2019)

– Thomas L. Root

Not a Great Week for the BOP – Update for August 13, 2019

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NOT THE BEST WEEK FOR THE BOP

baddayA181130Earlier this past week, a gang fight at a Florida BOP facility killed an inmate and sent several to the hospital. Then this past weekend, high-profile defendant Jeffrey Epstein, being detained at MCC New York, apparently killed himself shortly after being taken off suicide watch.

It all adds up to a bad week for BOP Acting Director Hugh Hurwitz. And it’s not like to get better soon.

Investigations were immediately launched by the FBI and Dept. of Justice Inspector General. The Washington Post said Saturday afternoon that “the death is sure to draw intense scrutiny of the Bureau of Prisons and the Metropolitan Correctional Center, New York. The high-rise federal detention center in downtown Manhattan has a fearsome reputation; one inmate who spent time there and at Guantanamo Bay said that the U.S. facility in Cuba was “more pleasant” and “more relaxed.”

At minimum, expect the BOP’s suicide program statement, last updated 12 years ago, to get a rewrite over the Epstein incident. More likely, a lot of hard questions are going to be asked by law enforcement and congress alike of BOP Central Office staff and the affected wardens.

But the investigation is likely to go far beyond that. Yesterday, the Houston Chronicle reported that “the apparent suicide of Jeffrey Epstein has brought new scrutiny to a federal jail in New York that, despite chronic understaffing, houses some of the highest-security inmates in the country.” It characterized the suicide as “the latest black eye for the U.S. Bureau of Prisons, the jail’s parent agency that already was under fire for the October death of Boston gangster James “Whitey” Bulger, who was fatally beaten at a federal prison in West Virginia shortly after his arrival.”

Taken together, the deaths underscore “serious issues surrounding a lack of leadership” within the BOP, the Chronicle reported, quoting Cameron Lindsay, a former warden who ran three federal lockups, including the Metropolitan Detention Center in Brooklyn.

badday190813Yesterday, the New York Times reported that “one of the two people guarding Jeffrey Epstein when he apparently hanged himself in a federal jail cell was not a full-fledged correctional officer, and neither guard had checked on Mr. Epstein for several hours before he was discovered, prison and law-enforcement officials said.” The description sounds suspiciously like the BOP was using augmentation, its practice of pressing non-correctional officers into CO roles.

Attorney General William P. Barr criticized BOP’s management of MCC New York yesterday, saying, “We are now learning of serious irregularities at this facility that are deeply concerning and demand a thorough investigation… We will get to the bottom of what happened. There will be accountability.”

Uh-oh. Sounds like some Warden’s bonus is in jeopardy. Or not.

USA Today, One inmate killed and five others hospitalized after clash between white and black federal prisoners (Aug. 5, 2019)

Houston Chronicle, Federal New York lockup draws new scrutiny in Epstein death (Aug. 12, 2019)

Washington Post, Jeffrey Epstein dead after ‘apparent suicide’ in New York (Aug. 10, 2019)

The New York Times, In Short-Staffed Jail, Epstein Was Left Alone for Hours; Guard Was Substitute (Aug. 12, 2019)

– Thomas L. Root

5th Circuit Restricts Fair Sentencing Act Reductions – Update for August 12, 2019

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5TH CIRCUIT DECISION SHARPLY LIMITS FAIR SENTENCING ACT RESENTENCINGS

Guidelines red text and magnify glassAn arcane but very important question raised by the retroactive sentencing of people with pre-Fair Sentencing Act crack cases has been whether it is an entirely new sentence being imposed – called a plenary resentencing – or just a limited resentencing that cannot consider anything other than a lower Guidelines score.

This is critical, because for a lot of people falling under Sec. 404 of the First Step Act, which authorizes retroactive resentencing under the Fair Sentencing Act of 2010, were sentenced back in the bad old days before Alleyne protected against mandatory minimums being applied by the judge acting without a jury, and even before Booker, when the Sentencing lines were mandatory. A full resentencing would let people get resentenced with full constitutional protections. A limited resentencing would require the judge to apply many of the processes and rules that have since been held to violate a defendant’s rights.

Most district courts have conducted full resentencings, but as I warned a few months ago, some were pretending that the FSA resentencings were nothing different from 3582(c)(2) Guidelines sentence reductions. Last week, the 5th Circuit became the first appeals court to address the issue, and the results were not pretty.

The Circuit concluded that “the First Step Act does not allow plenary resentencing…” It ruled that the plain text of Sec. 404 only “grants a district judge limited authority to consider reducing a sentence previously imposed. The calculations that had earlier been made under the Sentencing Guidelines are adjusted ‘as if’ the lower drug offense sentences were in effect at the time of the commission of the offense. That is the only explicit basis stated for a change in the sentencing.”

Comparativecrack190425The 5th said the limits in Sec. 404 “make the First Step Act similar to Section 3582(c), which opens the door only slightly for modification of previously imposed sentences for certain specified reasons, including the lowering by the Sentencing Commission of the sentencing range that was in effect for the defendant at the time of initial sentencing.” Relying on the 2010 Dillon v. United States  Supreme Court case, the Circuit concluded “Congress intended to authorize only a limited adjustment to an otherwise final sentence and not a plenary resentencing proceeding… The district court decides on a new sentence by placing itself in the time frame of the original sentencing, altering the relevant legal landscape only by the changes mandated by the 2010 Fair Sentencing Act. The district court’s action is better understood as imposing, not modifying, a sentence, because the sentencing is being conducted as if all the conditions for the original sentencing were again in place with the one exception. The new sentence conceptually substitutes for the original sentence, as opposed to modifying that sentence.”

Ohio State University law professor Doug Berman said Saturday in his Sentencing Law and Policy blog that “as a matter of sound policy and practice, I think it makes more sense to approach these cases as full resentencings with all subsequent changes in both applicable sentencing laws and relevant sentencing facts available for, and integral to, the judge’s resentencing decision. Otherwise, as seems to be the case in Hegwood, a defendant already subject to the undue harshness of the old 100-1 crack mandatory minimums is still forced to endure the undue harshness of other problems with the guidelines that have been fixed since his original sentencing.”

The best we can hope for is that other circuits will split in the other direction, setting this issue up for Supreme Court review.

United States v. Hegwood, Case No. 19-40117 (5th Cir. Aug. 8, 2019)

Sentencing Law and Policy, Fifth Circuit articulates limiting account of FIRST STEP Act crack resentencing (Aug. 9, 2019)

– Thomas L. Root

Are Inmates Soon to be Sexy? – Update for August 9, 2019

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WILL 2020 BE “THE YEAR OF THE PRISONER?”

thumbsup190809Surprisingly enough, 2020 is looking to be the year of the prisoner. Democratic candidates for president are falling all over themselves making proposals for federal sentencing reform, President Trump is claiming that he is the criminal justice reform leader, and – perhaps more important – the news media are questioning prison and sentencing reform like never before.

Criminal justice is expected to be a showcase in Trump’s presidential platform, passage of the First Step Act, hailed by the administration as a legislative victory that, in part, rolls back harsh drug war sentencing from the 1980s and 1990s.

Among the herd of Democrats running for president, Sen. Cory Booker (D-New Jersey) stands out, promising to increase the use of clemency and to seek a law requiring judges to consider early release for aging inmates who’ve served at least a decade in the federal prison system.

Last week, CBS News devoted a long interview to New York University law professor and former U.S. Sentencing Commission member Rachel Barkow, who just wrote a book called Prisoners of Politics: Breaking the Cycle of Mass Incarceration. Covering everything from sentencing reform to her concerns about enough programming to take advantage of the First Step Act, the interview set the tone for the debate.

maxed190809For example, Barkow compared long sentences to “your credit card bill. If you’re in financial difficulty, and you can’t pay your bills, you put them all on your credit card… The next month your credit card bill comes and there’s interest. It gets worse and worse and the longer you don’t pay, the worse things get. Long sentences are like that. While you’re incarcerating people, not only are you not making them better, you’re often putting them in environments where they are likely to become worse.”

The website “Governing,” intended for government officials, ran a piece on prison healthcare last week, noting that “prisoners make up 1 percent of the population, yet they account for 35 percent of the nation’s total cases of hepatitis C. ‘They are the most expensive segment of the population,” says Marc Stern, a public health professor at the University of Washington, ‘and they are the sickest.’ For all the care that inmates need, they’re unlikely to receive adequate medical attention.”

Fortune, Criminal Justice Reform Advocates See Prime Opportunity in 2020 Election (Aug. 2, 2019)

NJ.com, Booker’s right: Paying $60,000 a year to jail one geriatric inmate deserves ‘a second look’ (July 28, 2019)

CBS News, What’s wrong with America’s criminal justice system? 6 questions for an expert (Aug. 2, 2019)

Governing.com, America Has a Health-Care Crisis — in Prisons (Aug. 1, 2019)

– Thomas L. Root

Time Waits for No Mike – Update for August 7, 2019

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JUST THE NEW FACTS, MA’AM

notimejibba160915A federal post-conviction motion filed pursuant to 28 USC § 2255  has to be filed within certain deadlines. Beyond the one everyone knows, one year from finality of conviction, 28 USC § 2255(f) has three other categories. The most widely used is § 2255(f)(4), giving a filer one year from “the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.”

Mike Ingram was convicted of a drug offense, and had his mandatory minimum doubled after the government filed a notice of  enhancement (for a prior drug conviction) under 21 USC § 851. A few years after his deadline for a § 2255 motion passed, the United States Sentencing Commission issued a report that showed widespread disparity among U.S. Attorney’s offices in the filing of § 851 notices. In other words, a drug defendant with a prior drug conviction was much more likely to get his or her minimum sentence doubled in Davenport, Iowa, for example, than in Sioux Falls, South Dakota, for no better reason than geography.

A year or so after that, Mike’s district judge – the outstanding jurist Mark Bennett – obtained the underlying data the Sentencing Commission had relied on, reinterpreted it in greater detail, and then refused in United States v. Young to apply a § 851 enhancement to a defendant’s sentence. The judge reasoned that “prior to enactment of a National Department of Justice § 851 policy, there was a gross national and district wide disparity in the imposition of such an enhancement for similarly situated defendants.”

Ontime160103Based on the Young ruling, Mike filed a § 2255 motion. He claimed his petition was timely under § 2255(f)(1) because it was filed within a year of the Young decision, which he argued had revealed new conclusions from the Sentencing Commission data. His district agreed, but denied the motion for other reasons.

On appeal, Mike argued the merits of his claim, but the government cross-appealed, contending his § 2255 motion had not been timely filed and never should have been considered at all.

Last week, the 8th Circuit agreed that the § 2255 was filed too late. The Court agreed that although a judicial decision is never considered a new fact under § 2255(f)(4), Mike was right that he was not relying on the Young ruling as such, but rather on “new facts” in Young concerning the disparate application of the § 851 enhancement among the various federal districts. Because the Young decision included new analysis of the underlying 2011 Report data, the Circuit agreed Mike was relying on “the facts presented in Young about the disparate application of § 851 among the various federal districts, not the Young decision itself.” These are indeed new facts, the 8th said.

Sweet Brown could have been on the appeals panel.
Sweet Brown could have been on the appeals panel.

But “new facts” are only part of the § 2255(f)(4) test. Mike also had to show “that he acted with diligence to discover the new fact.” Here, the appeals court said, it was the issuance of the Commission’s 2011 Report — not the release of the Young decision — that triggered Mike’s duty to act with due diligence. “While the Commission’s 2011 Report may not have set forth the raw data underlying its conclusions,” the Circuit said, “it certainly provided notice that a disparity existed in the application of § 851.” Mike “has not explained why he could not have acted sooner to bring his equal protection/selective enforcement claim based on facts revealed in the 2011 Report. Legal challenges to § 851 enhancements based on disparity or disproportionality are not novel… We conclude that Mike did not exercise due diligence in discovering the facts set forth in the Commission’s 2011 Report.”

Ironically, Mike could not have gotten the data from the USSC through a Freedom of Information Act request, because the Commission is not covered by FOIA. But if he had at least tried to do so, he might have been able to explain why he had acted with diligence, and thus been able to make a § 2255(f)(4) showing.

Ingram v. United States, 2019 U.S. App. LEXIS 23225 (8th Cir. Aug. 2, 2019)

– Thomas L. Root

Clemency in Dibs and Drabs – Update for August 6, 2019

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TRUMP GRANTS CLEMENCY TO A FEW MORE… TOO FEW MORE

President Trump last week commuted two sentences and granted pardons to five others who previously pleaded guilty to nonviolent crimes but have completed their sentences.

obtaining-clemencyTrump commuted the sentence of Ronen Nahmani, who was serving a 20-year sentence for conspiracy to distribute the synthetic drug “spice.” The White House said Ronen had no prior criminal history and has five young children at home, the oldest is 13 years old, and a wife battling terminal cancer. Trump noted his case for an early release received bipartisan support from legislators.

Trump also commuted the sentence of Ted Suhl, an Arkansas man convicted in 2016 on four counts of bribery after prosecutors said he took part in a scheme to increase Medicaid payments to his faith-based behavioral health-care center for juveniles company. Suhl lost at the 8th Circuit, and was preparing to file in the Supreme Court. The White House noted his “spotless disciplinary record” over three years in prison and highlighted support for the commutation from former Gov. Mike Huckabee and former U.S. Attorney Bud Cummins.

Trump pardoned five other people who had already served their sentences, for offenses ranging from transferred government property illegally to transporting marijuana, to running an illegal gambling parlor in 1987 and stealing guns from luggage.

With Monday’s announcements, Trump has now pardoned or reduced the sentences of 19 individuals since taking office. Ohio State University law professor Douglas Berman noted in his Sentencing Law and Policy blog last Wednesday that with over 177,000 people in federal prison, “six commutations is, by all sensible measures, a very small number. The granting of only six commutations seems especially disappointing given that last year Prez Trump was talking about considering clemency requests that including “3,000 names, many of those names have been treated unfairly, … [and] in some cases, their sentences are far too long.”

clemency170206Trump’s six clemency grants in his first term beats the first term records of every president since Reagan. The record is still held by Nixon, who granted 48 clemencies in his first term. Berman noted “that so very few federal prisoners have recently received clemency while the federal prison population has swelled makes these numbers even more depressing. The also look terrible if we look back further historically, as almost every other 20th Century US President (except for Dwight Eisenhower) granted a hundred or more commutations while in office (with Woodrow Wilson granting 341 in 1920 alone).”

The Hill, Trump announces seven pardons or commutations (July 29)

Wall Street Journal, Trump Commutes Prison Sentences in Medicaid Bribery, Drug Cases (July 29)

Sentencing Law and Policy, A (depressing) first-term scorecard for recent presidents (July 30)

– Thomas L. Root

4th Circuit Holds Plea Agreement Waiver Does Not Block Johnson/Dimaya/Davis Claims – Update for August 5, 2019

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DODGING THE WAIVER

190805myopiaA type of myopia common among federal defendants filing post-conviction § 2255 motions is understandable: people get so focused on their substantive issues – the prosecutor lied, the defense attorney slept, the judge was inept – that no one ever asks whether some arcane issue of procedure will defeat his or her claim before the merits are ever reached.

One of the first procedural issues I usually worry about is the waiver. Face it, 97% of federal inmates plead guilty, and almost all of them sign some kind of plea agreement. And almost all plea agreements include a waiver section, in which a defendant waives the right to appeal or to collaterally attack (as in, file a § 2255 motion) the conviction or sentence. There is always an exception in the case of prosecutorial misconduct or ineffective assistance of counsel, but what happens when something like Johnson v. United States or Sessions v. Dimaya or United States v. Davis comes along?

Randall Cornette, convicted of a felon-in-possession charge, challenged his Armed Career Criminal Act sentence. The trial court had relied on some old Georgia burglaries that Randy said could no longer count under Johnson. The government replied that Randy had signed a plea agreement waiver that prevented him from raising a Johnson issue.Waivers160215

Last week, the 4th Circuit ruled that a plea agreement waiver does not prevent a defendant from taking advantage of Supreme Court decisions like Johnson or Davis. The appeals court ruled that an otherwise valid appeal waiver did not bar Randy from now arguing that by imposing a sentence under the unconstitutional residual clause of the ACCA, the district court exceeded its statutory authority to sentence him.

The Court said that an appeal waiver does not preclude a defendant from challenging a sentence “based on a constitutionally impermissible factor” or “a sentence imposed in excess of the maximum penalty provided by statute.” Randy’s sentence challenge is based on the assertion that the district court did not have the statutory authority to impose the sentence under to the residual clause. Because Johnson was made retroactive by the Supreme Court, the Circuit said, “all sentences rendered under the residual clause became unconstitutional. Therefore, Randy’s sentence was imposed in excess of the maximum penalty provided by ACCA.”

The 4th said that this doesn’t mean that a non-retroactive change in the law, like Booker or Alleyne, can be challenged where there is a collateral-attack waiver. But where a Supreme Court case (like Davis, for instance) “announces a substantive rule that applies retroactively, the district court is now deemed to have had no statutory authority to impose [a] sentence,” and a court may review a sentencing challenge “notwithstanding the appeal waiver.”

United States v. Cornette, 2019 U.S. App. LEXIS 22554 (4th Cir. July 30, 2019)

– Thomas L. Root