Good-Time Charlie Has the Blues No More – Update for June 14, 2019

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MORE EVIDENCE THAT THE 7-DAY EXTRA GOOD TIME IS UPON US

Since the blunder in last December’s First Step Act that delayed the immediate application of its 7-days-extra “good time” fix, people had been hoping to fix the error so that the extra good time could be immediately applicable (as Congress intended). As long back as January, I predicted Congress was disinclined to return to First Step to repair the mistake.

The good-time “fix” was thisEnough time has passed that the date on which the “good time” fix is very likely to kick in (July 19, assuming the Attorney General complies with a key deadline in the Act) is a little more than five weeks away. Last week, there was more evidence that the Administration plans to meet that deadline.

The Marshall Report reported that the “White House is racing to help an estimated 2,200 federal prisoners line up work and housing before they are released next month, according to several policy experts and prisoner advocates who have been involved in the effort.”

Marshall’s sources said that the prisoners scheduled to be let out in July are the largest group to be freed so far: “Their sentences are being reduced thanks to a clause that goes into effect next month…”

The report said that the bipartisan group of First Step supporters that pushed for the new law are “concerned that the inmates aren’t adequately prepared to land jobs, find housing or obtain transportation from prison to the places they will now live. Much of that help was supposed to come through programs within the First Step Act, but Congress has not yet funded the five-month-old law, and the Department of Justice has so far failed to allocate significant funding from its budget for it.”

The concern is not academic. If the people released after First Step passed fail on the outside, future criminal justice reforms could be imperiled. Sentencing Commission studies show that 45% of people released from federal prison go back within five years. If First Step program do not reduce that number, the hardliners who love harsh mandatory minimums could have their day once again.

I have heard from a number of inmates that the BOP has already recalculated time for people who are likely to be released immediately because of the change.  Because it is so difficult to verify anecdotal evidence, even from sources who are detailed in their reports, I do not rely on the reports. However, what I have heard is not at all inconsistent with published reports that the adjustment wi

The Marshall Project, White House Pushing to Help Prisoners Before Their Release (June 5)

Sentencing Law and Policy, Curious (but still encouraging) discussion of expected release of prisoners after FIRST STEP Act “good time” fix becomes operational (June 5)

– Thomas L. Root

Will President Circumvent DOJ With White House Pardon Attorney? – Update for June 13, 2019

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RUMOR FLOATED THAT TRUMP WILL APPOINT HIS OWN NON-DOJ PARDON ATTORNEY

The Washington Examiner reported last week that “worried clemency advocates are urging President Trump to select his own pardon attorney as the Justice Department reviews a stack of resumes collected on short notice” to fill its own Pardon Attorney slot.

pardonme190123There hasn’t been a politically appointed Pardon Attorney in over 40 years, but advocates say it could enhance the position’s stature and ensuring that Trump’s interest in giving second chances extends beyond isolated cases. “I think it makes a lot of sense to have the pardon attorney job be a political one,” said Margaret Love, U.S. pardon attorney from 1990 to 1997.

The job posting was open for just a month, closing May 10, suggesting that DOJ may already have a candidate in mind, probably another career prosecutor. “I wonder if they are going to make Trump aware of [the search]. Shouldn’t the president have some say over who his pardon attorney is?” said Sam Morison, who worked for 13 years as a staff attorney in the DOJ’s Office of the Pardon Attorney. “If they are just going to the U.S. attorneys’ offices, they are going to get someone who’s a company man, and that’s the idea,” he said.

Rosalind Sargent-Burns, a long-time Office of the Pardon Attorney staffer, was named acting Pardon Attorney on May 28. She has never been a line prosecutor, to her credit, and has held various  positions in the OPA over the past decade, including Designated Agency Ethics Officer, Team Lead, Senior Attorney Advisor over the pardon portfolio, Acting Deputy Pardon Attorney, and Deputy Pardon Attorney.

yesman190613Morison wants Trump to pick his own pardon attorney and move the office into the White House, citing institutional weight against clemency in cases DOJ itself prosecuted. He is hopeful based on President Trump’s public remarks, including that there are “a lot of people” in prison for “no reason.” “Trump gets a lot of criticism, but I think it’s refreshing for him to admit something everyone knows to be truth: The Justice Department is not perfect, and prosecutions are not perfect. Most presidents aren’t actually willing to acknowledge that,” Morison said. “I think Trump does not trust DOJ, and in this particular instance he’s probably correct.”

Heritage Foundation scholar Paul Larkin, who wants Trump to create a White House Office of Executive Clemency, participated in a private group discussion on clemency reform two months ago. CAN-DO founder Amy Povah also wants the pardon attorney separated from DOJ. “We are relying on President Trump to finally be the hero we’ve been waiting for because he is an outsider who doesn’t worry about shaking up the status quo,” she said.

Trump has now fallen behind President Obama on clemency, having granted only 12 people pardons or commutations, nearly all at the urging of politicians or celebrities. At this point in his presidency, Obama had granted clemency to 17 people.

Washington Examiner, Trump urged to pick his own pardon attorney (June 6)

– Thomas L. Root

Retroactive Crack Sentence Reductions Pass One Thousand – Update for June 12, 2019

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SENTENCING COMMISSION ISSUES CRACK RETROACTIVITY UPDATE

The Sentencing Commission last Friday issued a report on releases under the Fair Sentencing Act retroactivity granted by the First Step Act. Since First Step became law last December, the courts have granted 1,051 crack sentence reductions.

crackpowder160606The breakdown by district shows Middle and Southern Florida, South Carolina and Virginia are the places to be. Those five districts accounted for about 29% of all grants. One third of the 94 districts contributed only  2.5% of the total, with 20 districts not granting a single motion.

What was missing from the USSC analysis was a figure on the number of motions denied, which would have provided a much clearer picture of any discrepancies among the districts in how the Fair Sentencing Act retroactive reductions were being applied.

The sentence reductions averaged 29 months, with the 5th Circuit courts averaging the best at 35.3 months and the 1st Circuit being the worst at 22.6 months. Over 91% of all defendants getting time cuts are black.

U.S. Sentencing Commission, First Step Act of 2018 Resentencing Provisions Retroactivity Data Report (June 7, 2019)

– Thomas L. Root

Supreme Court Rules “Remaining-in” Burglary is Generic Burglary – Update for June 11, 2019

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SUPREME COURT HOLDS THAT ‘REMAINING IN” BURGLARY IS GENERIC BURGLARY UNDER ACCA

Jamar Quarles was convicted of being a felon in possession of a gun under 18 USC § 922(g)(1). Because he had three prior convictions for crimes of violence, he was sentenced to a mandatory minimum sentence of 15 years under 18 USC § 924(e), the Armed Career Criminal Act.

burglar160103In order to be a crime of violence, you may recall, 18 USC 924(e) requires that the conviction either be (1) for burglary, arson, use of explosives or extortion (the “enumerated crimes” clause); or (2) a crime involving an actual or threatened use of physical force against another person (the “elements” clause).

Jamar appealed his ACCA conviction, arguing that one of the prior offenses, Michigan third-degree home invasion, was not generic burglary, because its terms were broader than mere generic burglary. Thus, he maintained, the home invasion did not fit the definition of “crime of violence” under the enumerated crimes clause.

Some 29 years ago, the Supreme Court in Taylor v. United States defined generic burglary under §924(e) to mean “unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.” The Michigan third-degree home invasion statute applied when a person “breaks and enters a dwelling or enters a dwelling without permission and, at any time while he or she is entering, present in, or exiting the dwelling, commits a misdemeanor.”

Jamar argued that this provision was too broad, because it encompassed situations where the defendant forms the intent to commit a crime at any time while unlawfully remaining in a dwelling. He contended that generic remaining-in burglary under the ACCA occurs only when the defendant has the intent to commit a crime at the exact moment when he or she first unlawfully remains in a building or structure.

The District Court rejected that argument, and the Sixth Circuit affirmed. Yesterday, the Supreme Court agreed with the lower courts.

remaining190611The Supreme Court said that “remaining in” refers only to the burglary being a continuous event, that begins when one enters the building unlawfully and does not end until he or she exits. The common understanding of “remaining in” as a continuous event, the Court said, “means that burglary occurs for purposes of §924(e) if the defendant forms the intent to commit a crime at any time during the continuous event of unlawfully remaining in a building or structure.” To put it in conventional criminal law terms, the Court explained, “because the actus reus [the act of burglary] is a continuous event, the mens rea [intent to commit a crime while there] matches the actus reus so long as the burglar forms the intent to commit a crime at any time while unlawfully present in the building or structure.”

The Court made it clear what concerns partly drove the train. It observed that “the important point is that all of the state appellate courts that had definitively addressed this issue as of 1986 [the year the ACCA was adopted] had interpreted remaining-in burglary to occur when the defendant forms the intent to commit a crime at any time while unlawfully present in the building or structure… To interpret remaining-in burglary narrowly… would thwart the stated goals of the Armed Career Criminal Act. After all, most burglaries involve unlawful entry, not unlawful remaining in. Yet if we were to narrowly interpret the remaining-in category of generic burglary so as to require that the defendant have the intent to commit a crime at the exact moment he or she first unlawfully remains… many States’ burglary statutes would presumably be eliminated as predicate offenses under §924(e). That result not only would defy common sense, but also would defeat Congress’ stated objective of imposing enhanced punishment on armed career criminals who have three prior convictions for burglary or other violent felonies.”

Quarles v United States, Case No. 17-778 (Supreme Court, June 10, 2019)

– Thomas L. Root

Sentencing Commission Cannot Add to Drug Offense Definition, 6th Circuit Says – Update for June 10, 2019

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NEITHER FISH NOR FOWL

fishfowl170803Everyone who paid attention in high school government class knows there are three branches of the federal government, the legislative (Congress), the executive (President and the agencies), and the judicial.

And then there’s the United States Sentencing Commission. It is part of the judicial branch, but it is part legislative, too, answering to Congress (which has the right to pass on any amendments, and veto those of which it disapproves). Legal scholars might say it’s neither fish nor fowl.

In 2017, Jim Harvey pled guilty to felon-in-possession of a firearm. Under the Sentencing Guidelines, a defendant convicted of a 18 USC 922(g)(1) offense starts with a base offense level of 14, but that level increases to 20 under USSG § 2K2.1(a)(4) or (6) if he or she has a prior conviction for a “controlled substance offense.” At sentencing, the district court decided that Jim’s 17-year-old Tennessee conviction for selling or delivering cocaine was a “controlled substance offense” under the Guidelines.

Jim objected because the Tennessee statute criminalized both sale and delivery of cocaine. Under state law, “delivery” of drugs includes the “attempted transfer from one person to another of a controlled substance.” Jim argued that the prior conviction was not a controlled substance offense because the Guidelines’ definition of “controlled substance offense” does not include “attempt” crimes.

Jim was right that the Guidelines themselves do not include “attempt” offenses. However, each of the Guidelines comes with its own handy commentary and application notes, helpful annotations by the Sentencing Commission to aid users in what it considers the “proper” way to apply each Guideline. The commentary at the end of USSG § 4B1.2(b), which (among other things) defines a controlled substance offense for Guidelines purposes, directs that the definition of controlled substance offense in the text necessarily includes ‘the offenses of aiding and abetting, conspiring, and attempting to commit such offenses.’

robbank190610Not so, Jim argued. The Guidelines text itself says nothing about attempt, and the Sentencing Commission, he complained, has no power to add attempt crimes to the list of offenses in § 4B1.2(b) through its own commentary. It would be like West Publishing adding a note after the bank robbery statute saying that bank robbery includes the offense of shaking a few quarters out of your kid’s piggy bank for bus fare.

Last Thursday, the 6th Circuit agreed with Jim.

The Guidelines commentary, the Court said, “never passes through the gauntlets of congressional review or notice and comment. That is generally not a problem, the Supreme Court tells us, because such commentary has no independent legal force — it serves only to interpret the Guidelines’ text, not to replace or modify it. Courts need not accept an interpretation that is “plainly erroneous or inconsistent with” the corresponding guideline.

bootstrappingBut the problem comes where the commentary does more than just interpret, but instead tries to bootstrap the Guideline into saying something more than what Congress approved. In this case, the commentary in question does not “interpret,” but rather supplements. The Commission was perfectly capable of adding “attempt” to the Guideline itself. Clearly, the 6th Circuit noted, the “Commission knows how to include attempt crimes when it wants to — in subsection (a) of the same guideline, for example, the Commission defines “crime of violence” as including offenses that have “as an element the use, attempted use, or threatened use of physical force against the person of another.”

To make attempt crimes a part of 4B1.2(b), the Commission did not interpret a term in the guideline itself, but instead used Application Note 1 to add an offense not listed in the Guideline. Application notes, the Court held, are to be “interpretations of, not additions to, the Guidelines themselves.” If that were not so, the institutional constraints that make the Guidelines constitutional in the first place — congressional review and notice and comment — would lose their meaning.

Jim’s case was remanded for resentencing.

United States v. Havis, 2019 U.S. App. LEXIS 17042 (6th Cir. June 6, 2019)

– Thomas L. Root

First Step Tidbits – Update for June 5, 2019

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FIRST STEP ROUNDUP

Looking for a Loophole: First Step news from last week: First, a cautionary tale for anyone who thinks there is a magic potion that will make the sentencing changes in the First Step Act retroactive.

loophole190605As with most legislation the First Step Act represents countless compromises. Prominent among those were the deals made on retroactivity. The Act changed 18 USC § 924(c), which punishes people who use a gun in a drug crime or crime of violence with a mandatory consecutive term of five years (if the defendant was just carrying the gun), seven years (if the defendant brandished the gun) or 10 years (if the defendant actually shot it). All of that makes sense. The statute also imposes a mandatory consecutive 25 years on a defendant for a second conviction under 924(c).

The problem was lousy draftsmanship. Congress figured that it you got five years extra for a 924(c) conviction but did not learn your lesson, you ought to get a minimum 25 years on the second conviction. But the provision was written so that any subsequent conviction under 924(c) got you the enhanced time. Say that today you sell some dope on the street corner, with a gun stuffed in your pants. Then, tomorrow you do the same thing. The U.S. Attorney will charge you with two distribution counts and two 924(c) counts, one for each day. Before the First Step Act, you would get a sentence for the drugs, a consecutive five years for today’s 924(c) count, and a consecutive 25 years for tomorrow’s 924(c). That was not the way it was supposed to work, but U.S. Attorneys don’t care what Congress meant. They only care about what Congress wrote.

The First Step Act changed 924(c) to make it clear that the 25 years can be added only if you had already been convicted of the first 924(c) before you committed the second one. Likewise, it changed portions of 21 USC § 841(b)(1) to make the former mandatory life sentence into a 25-year sentence, and the former 20-year sentence into a 15-year sentence. But to sell some of the troglodytes in the Senate (yes, we mean you, Sen. Tom Cotton [R-Alabama]) on supporting First Step, the changes in the mandatory minimums were not made retroactive. Only the 2010 Fair Sentencing Act – which like First Step had the retroactivity taken out in order to rustle up enough support to pass the measure – was made retroactive in First Step.

trog190605Devan Pierson thought he could wriggle through a loophole. He got sentenced to life for a drug distribution case, due to his criminal history and the presence of guns. On appeal, he argued that because the First Step Act had made life sentences into 25-year maximum sentences, his life sentence – which was still on direct review – should be reduced.

Last Friday, the 7th Circuit disagreed. “Subsection 401(c) states that the amendments in that section ‘shall apply to any offense that was committed before the date of enactment of this Act, if a sentence has not been imposed as of such date of enactment.’ In common usage in federal sentencing law, a sentence is “imposed” in the district court… In the First Step Act, Congress chose language that points clearly toward that same result: the date of sentencing in the district court controls application of the new, more lenient terms.”

* * *

Power of the Media: I wrote last week about some district courts holding that reductions in crack sentences under the retroactive Fair Sentencing Act must rely on the “offense controls” theory instead of the “indictment controls” theory. If you are in that kind of fix, it is good to have friends in the media.

In 1994, in the depths of the war on drugs, Sonny Mikell picked up a third federal drug conviction in Florida and was handed a mandatory minimum sentence of life in prison. Although he was only found guilty for 50 grams by a jury, the sentencing judge agreed with the presentence report that held him culpable for 290 grams (for sentencing purposes).

When the First Step Act made the Fair Sentencing Act retroactive, Sonny applied for relief. His sentencing judge granted it promptly, sending Sonny home right from the hearing. But the government appealed to the 11th Circuit, apparently intending to argue that the “offense controls” theory (and the 290 grams) should govern.

Stopthedrugwar.org picked up the story, and ran it week. Citizen Truth republished it. The next day, the government dismissed its appeal without explanation. Citizen Truth may not be Kim Kardashian, but it got the job done.

* * *

You’re My Bestie: Finally, the Daily Beast picked up the story of Rufus Rochell, a man from inauspicious circumstances who befriended Conrad Black when the two were together at FCI Coleman. Black, a wealthy Canadian publisher and friend of Trump, was pardoned by the President a few weeks ago.

bff190605Rufus and Conrad both worked in the education department, Rufus as a law clerk and Conrad as a tutor helping inmates study for their GEDs. “They had conversations about history and education. And they found humor in the subtle absurdities of prison life, such as the thunderous rain that fell whenever inmates were asked to report for lawn duty.”

When Conrad was released on bail after a favorable SCOTUS decision, a rumor spread that he had been arrogant and condescending as an inmate. At Conrad’s request, Rufus wrote a letter refuting the claim, and praising his selflessness.

Now that Conrad has been pardoned, Rufus is hoping for a break through the First Step Act or executive clemency, and is looking to Conrad for support. According to the Daily Beast, nothing has yet been forthcoming.

I have heard a lot of guys being released who promised to send friends money, to keep in touch, even get together after it was all over. It does not often happen. You would hope, however, that when someone is powerful, rich and close to power, especially when he himself has been blessed with good luck, such a promise would not be forgotten.

United States v. Pierson, 2019 U.S. App. LEXIS 16296 (7th Cir. May 31, 2019)

CitizenTruth.org, Why Are Prosecutors Trying to Send a First Step Act Ex-Prisoner Back to Prison? (May 28)

Motion to Dismiss, United States v. Mikell, Case No. 19-11459-G (11th Cir. May 29, 2019)

Daily Beast, Trump Pardoned Billionaire Conrad Black but Left His Prison Buddy Behind

– Thomas L. Root

Ask Not For Whom the Supervised Release Term Tolls – Update for June 4, 2019

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SUPREME COURT HOLDS THAT PRETRIAL DETENTION LATER CREDITED TO NEW SENTENCE TOLLS SUPERVISED RELEASE

Jason Mont was on five years’ supervised release after doing time for a federal drug offense, scheduled to end on March 6, 2017. With nine months to go, Ohio arrested him for a marijuana trafficking conspiracy and locked him in the beautiful, high-rise Mahoning County jail.

supervisedrelease180713Four months later, Jason pled guilty to the pot charge in state court, and then admitted in federal court that he had violated his supervised-release conditions by virtue of the new state convictions. The federal district court finally got around to issuing a supervised release violations warrant on March 30, 2017, four months later, right after Ohio sentenced him to six years in prison for the pot, with credit for the 10 months he had spent in Mahoning County jail.

When Jason finally had his supervised release revocation hearing in June 2017, he challenged the district court’s jurisdiction on the ground that his supervised release had expired on March 6. he argued that the expiration of his supervised release deprived the district court of jurisdiction to issue the warrant on March 30. The court rejected the argument, and ordered him to serve 42 months’ federal imprisonment, to run consecutive to his state sentence.

The Sixth Circuit held that Jason’s supervised-release period was tolled under 18 USC § 3624(e), which provides that a “term of supervised release does not run during any period in which the person is imprisoned in connection with a conviction for a . . . crime unless the imprisonment is for a period of less than 30 consecutive days.” Because the roughly 10 months of pretrial custody was held to be “in connection with [Jason’s] conviction,” the appellate court said, his supervised release was tolled in June 2016, and had not yet resumed running as of the time the warrant issued. Thus, there was ample time left on the supervised release term when the warrant issued.

Yesterday, the Supreme Court narrowly agreed. In a 5-4 decision, the Court ruled that pretrial detention later credited as time served for a new conviction is “imprison[ment] in connection with a conviction” and thus tolls the supervised-release term under 18 USC § 3624(e), even if the court must make the tolling calculation after learning whether the time will be credited.

The Court said the text of § 3624(e) compels its conclusion. First, dictionary definition of the term “imprison,” both now and at the time Congress created supervised release, encompasses pretrial detention. Second, the phrase “in connection with a conviction” encompasses a period of pretrial detention for which a defendant receives credit against the sentence ultimately imposed. Congress, like most states, instructs courts calculating a term of imprisonment to credit pretrial detention as time served on a subsequent conviction.

supervisedrevoked181106The statute undeniably requires courts to retrospectively calculate whether a period of pretrial detention should toll a period of supervised release, as evidenced by its inclusion of the 30-day minimum jail stay needed to trigger tolling. The statute does not require courts to make a tolling determination as soon as a defendant is arrested on new charges or to continually reassess the tolling calculation throughout the pretrial-detention period. Inasmuch as the statute does not count jail for less than 30 days as tolling supervised release, it clearly anticipates that the tolling decision need be made only once at the end of the period in question.

The statutory context also supports the Court’s interpretation. The Supreme Court said it “would be an exceedingly odd construction of the statute to give a defendant the windfall of satisfying a new sentence of imprisonment and an old sentence of supervised release with the same period of pretrial detention. Supervised release is a form of punishment prescribed along with a term of imprisonment as part of the same sentence. And Congress denies defendants credit for time served if the detention time has already ‘been credited against another sentence’.”

Mont v. United States, Case No. 17-8995 (Supreme Court, June 3, 2019)

– Thomas L. Root

Trump Supreme Court Appointee Gorsuch May Not Be All ‘Law and Order’ – Update for June 3, 2019

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Last week’s posts were light to the point of being non-existent. I was off watching my oldest graduate from Harvard Business School (after a 13-year stint in Army aviation, most of which was in special operations). Yeah, I’m pretty proud watching my kids accomplish things I never could have done…

But, now, it’s back to work.

JUSTICE GORSUCH HINTS HE MAY NOT BE A “LOCK” VOTE FOR GOVERNMENT

This is the time of year I am usually up to my armpits in Supreme Court decisions. But with only four weeks left (and only four opinion days scheduled), SCOTUS still has 31 cases to decide, including a passel of important criminal decisions. Maybe we’ll see something today…

Meanwhile, the high court’s decision in Nieves v. Bartlett last week (a narrow decision holding that if a cop has probable cause to arrest you, you cannot make a 1st Amendment retaliatory arrest claim) was interesting primarily for a notable voting lineup and multiple separate opinions. Nieves especially provides more evidence that Justice Gorsuch is a sharp critic of the criminal justice system.

policestate190603In his concurring opinion, Justice Gorsuch wrote:

History shows that governments sometimes seek to regulate our lives finely, acutely, thoroughly, and exhaustively. In our own time and place, criminal laws have grown so exuberantly and come to cover so much previously innocent conduct that almost anyone can be arrested for something. If the state could use these laws not for their intended purposes but to silence those who voice unpopular ideas, little would be left of our 1st Amendment liberties, and little would separate us from the tyrannies of the past or the malignant fiefdoms of our own age.

Ohio State University law professor Doug Berman said in his Sentencing Law and Policy Blog that “the sparring in Nieves now has me even more excited (if that was possible) to see what the Court does in the biggest criminal cases I am watching, especially Gundy and Haymond.”

Nieves v Bartlett, Case No. 17-1174 (May 28, 2019)

Sentencing Law and Policy, Notable comments in notable SCOTUS opinions addressing First Amendment retaliatory arrest claims (May 28, 2019)

– Thomas L. Root

Fair Sentencing Act Resentencing Takes Ominous Turn – Update for May 28, 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.

INTRACTABLE PROBLEMS LOOM ON FAIR SENTENCING ACT RESENTENCINGS

A good number of crack defendant resentencings have breezed through district courts since the First Step Act authorized the retroactive application of the 2010 Fair Sentencing Act (“FSA”) to people sentenced for crack prior to August 2010.

The concerns of a few dissident district judges, however, may be gaining traction, jeopardizing future FSA resentencings.

crackpowder160606The problem is this: Just about all of the pre-FSA indictments alleged the defendant had “five or more” or “fifty or more” grams of crack. Back then, five or more bought a defendant a minimum 5 years, while 50 or more was good for a 10-year minimum. But what the indictment alleges is one thing. What the presentencing report says is something else altogether, and the PSR’s amount of drugs (used for setting the Guidelines range) is what the district court usually finds.

On FSA resentencings, some defendants have convinced courts that if the indictment said “five or more grams” of crack, for instance, their sentences should be based on five grams. Some sentences have fallen dramatically as a result.

Dan Blocker argued to his judge that when a defendant seeks an FSA sentence reduction, the relevant question is not how much crack was involved in the offense, but instead only how much was charged in the indictment.

Some other courts have grappled with this argument, but Dan’s court took it by the horns. In an interim decision, the district court complained Dan’s approach – the “indictment-controls” theory – “misreads the statute and is demonstrably inconsistent with Congress’s intent.” The district judge said the First Step Act specified that a sentence reduction is allowed only for a “covered offense,” that is, “a violation of a Federal criminal statute…” Violation of the statute is the criminal conduct, the court said, not the indictment. Thus, the court must follow the offense-controls theory, not the indictment-controls theory.

Comparativecrack190425

The court said the question is what sentence would have been imposed had the FSA been in effect when Dan sold the crack. The answer, the court held, does not turn on what the actual indictment charged, but rather on what it would have charged had the FSA governed the case. The court speculated that if the FSA had been in effect, Count 1 would have charged that the conspiracy involved 280 grams or more, not just 50, and other counts would have charged the higher amounts – 28 grams and 280 grams – listed in the FSA. “The only reason the actual indictment used the lower amounts,” the court said, “was that those were the amounts included in the statute at that time – the indictment tracked the statute.”

The higher amounts might have affected Dan’s decision to plead guilty, the court said, thus requiring a hearing to figure out what Dan might have done in response to what the indictment might have said.

If what the indictment in a pre-August 2010 crack said controlled resentencing, the court complained, “every crack defendant sentenced before the Fair Sentencing Act took effect would be eligible for a reduction…” and the First Step Act would “provide a windfall sentence reduction to pre-August 2010 defendants that people sentenced after 2010 would not get. “Congress could not have intended to treat crack defendants this much more favorably than powder defendants.

The so-called offense controls theory will almost certainly be appealed. Major appeals questions about retroactive FSA resentencings, even if resolved in the defendants’ favors, are likely to result in inconsistent circuit decisions, and could tie up resentencings for a year or better.

United States v. Blocker, 2019 U.S. Dist. LEXIS 79934 (N.D.Fla., Apr. 25, 2019)

– Thomas L. Root

Dog Bites Man: Congress Expected to Do Nothing on Criminal Justice Reform This Session – Update for May 23, 2019

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CONGRESS POISED TO DO NOTHING ON JUSTICE REFORM UNTIL AFTER 2020

The media are already buzzing about the 4,000+ expected releases from federal prison after July 19, when the seven-days-per-year extra good time awarded in the First Step Act is scheduled to be effective.

grid160411The Washington Examiner wrote last week that “Trump’s potentially contradictory impulses for law and order but also second chances face a looming political test when about 4,000 federal inmates are released in July under an expansion of “good time” credit in the First Step Act, which he signed in December. Reform advocates say successful reentry into society for the looming wave must be assured. Otherwise, the reform cause and its political backers, including Trump, could be damaged.”

The immediate release wave had been expected right when the bill passed on Dec. 21. But as the Examiner put it, a “drafting error placed the good time credit expansion — allowing an extra seven days a year — in an unrelated section of the law featuring a seven-month delay.”

mcconnell180219While Congress may be watching to see how the releasees do, it will not be acting on any criminal justice reform itself. It is clear that nothing the Democratic-run House of Representatives may pass is even going to come to a vote in the Senate. In Saturday’s Wall Street Journal, Senate Majority Leader Mitch McConnell (R-Kentucky) made it clear that the Republican-led Senate will block anything Senate or House Democrats want. “Meanwhile, the Democrats are divided,” the Journal said. “House Speaker Nancy Pelosi and Senate Minority Leader Chuck Schumer tout their legislative agenda, but half or more of their followers would rather rough up President Trump and then impeach him.”

Some of the Democrats running for president are touting criminal justice reforms as part of their platforms, but neither the candidates nor their opponents are interested in seeing anything enacted before the election.

With some of the 25-odd Democrats announced for president including strong criminal justice proposals in their platforms, it is unlikely the Senate would hand any of them a victory by passing any criminal justice reform measure.

Washington Examiner, Trump embrace of criminal reform faces test as 4,000 inmates near release (May 17)

Wall Street Journal, Mitch McConnell on Judges and the ‘Graveyard’ (May 18)

– Thomas L. Root