We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
SOMETIMES IT HAPPENS TO THE BAD GUYS, TOO
Eric Kelb was charged with the destruction of property on United States land, for trying to steal copper wire from an electrical circuit box. The copper wire was carrying electricity at the time, and Eric’s friend was toasted.
Eric filed a motion to suppress, which the district court granted. The government moved for reconsideration, but did so after the 30-day deadline. The district court rejected it as untimely, and the government appealed.
Last week, the 3rd Circuit held it lacked jurisdiction to hear the appeal, because the government’s failure to file a timely petition for reconsideration let the district court’s suppression order become final. The 30-day deadline for the government to appeal, set by Federal Rule of Appellate Procedure 4(b)(1)(B) is jurisdictional, the Circuit ruled, meaning that blowing the deadline was an error that could not be fixed. Here, the 30-day deadline to file a notice of appeal passed while the government was pursuing its untimely reconsideration.
The government argued equitable considerations should toll its late filing, but the Circuit held that equitable tolling does not apply to a jurisdictional deadline.
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
SUPERVISED RELEASE IS “SHADOW CRIMINAL JUSTICE SYSTEM”
A Federal public defender from Philadelphia last week blasted the statutorily-required supervised release system for pulling “tens of thousands of former inmates back into prison without a fair trial.”
Noting that one-third of all former inmates on supervised release are violated sometime during their term, author Jacob Schuman wrote that famous former inmate and now law professor Shon Hopwood told him that despite his going to law school and writing a book while on supervised release, there was still “a prevailing attitude among the probation officers that it was only a matter of time before I messed up and went back.” Hopwood said that probation officers “seemed more interested in policing violations than offering support.”
Schuman writes that supervised release “is incredibly strict, and that its reach is vast. Between 2005 and 2009, federal judges imposed supervised release in approximately 300,000 cases, with an average term lasting over 40 months. By 2010, more than 10,000 federal inmates were locked up for violating their supervised release.
Schuman called for Congress to limit supervised release only to those defendants who need it most and by reducing the punishments for violations,” and on judges to “stop sending people to prison for violations that are merely symptoms of an underlying drug addiction, not bad intent. To encourage this practice, Congress should end mandatory revocations for drug possession and prohibit imprisonment for drug-related technical infractions.”
Our experience with the arbitrary and standardless supervised release system is consistent with Schuman’s article. (Example: Any contact with a person with a criminal record – estimated to be oneout of three American adults – is to be reported to the Probation Officer, an impossible standard to meet but one that can easily be used to violate).
Any system that reincarcerates one out of three participants has a problem, and it’s not with the people being supervised.
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
SUPREMES TACKLE FEDERAL SENTENCING ISSUES, THEN BAKE A CAKE
The big news from the Supreme Court yesterday was its masterful dodge-and-weave on whether a Christian baker had to bake a wedding cake for a gay couple in violation of his religious beliefs that gay marriage was morally wrong. The long-awaited opinion, in which the 7-2 Court did not decide the issue but rather concluded that the Colorado state commission that had dinged the baker did so in the wrong way, is covered elsewhere in much more detail than here.
A number of federal defendants enter into Federal Rule of Criminal Procedure 11(c)(1)(C) plea agreements, in which the parties agree to a specific sentence. The district court may accept the deal, in which case the defendant gets the specific sentence he or she bargained for, or it can reject it. If the court rejects the sentence, the whole plea agreement is rejected, and the parties go forward as if there is no deal at all.
These “Type-C” agreements were good for defendants, who did not want to sign a plea agreement that would let the court run wild with whatever sentence it wanted to impose. But then, in 2007, the United States Sentencing Commission started adjusting the drug table downward, and making the changes retroactive. Suddenly, the people with Type-C agreements were shut out of sentence reductions, because their sentences were set pursuant to an agreement, not the Guidelines.
The issue came to the Supreme Court in the 2011 case of Freeman v. United States. The Supreme Court split so badly, with four in the majority, four in the minority and one – Justice Sotomayor – writing a concurring opinion, that no single interpretation or rationale was clear. Some courts of adopted Justice Sotomayor’s reasoning, while others adopted the plurality’s reasoning.
Yesterday, the Supreme Court cleared up the confusion, and in so doing, opened the door to Type-C agreements getting the benefits of 2-level reductions in 2007, 2011 and 2014. A sentence reduction under 18 USC 3582(c)(2) is permissible if the original sentence was “based on” the Guidelines. The Supreme Court held that a sentence imposed pursuant to a Type-C agreement is “based on” the defendant’s Guidelines range so long as that range was part of the framework the district court relied on in imposing the sentence or accepting the agreement.
A district court imposes a sentence that is “based on” a Guidelines range for purposes of Sec. 3582(c)(2) if the range was a basis for the court’s exercise of discretion in imposing a sentence. “Given the standard legal definition of ‘base’,” the Court said today, “there will be no question in the typical case that the defendant’s Guidelines range was a basis for his sentence. A district court is required to calculate and consider a defendant’s Guidelines range in every case under 18 USC 3553(a). Indeed, the Guidelines are “the starting point for every sentencing calculation in the federal system.” Thus, the Court ruled, “in general, Sec. 3582(c)(2) allows district courts to reconsider a prisoner’s sentence based on a new starting point — that is, a lower Guidelines range — and determine whether a reduction is appropriate.
The Government and the defendant may agree to a specific sentence in a Type-C agreement, but the Sentencing Guidelines prohibit district courts from accepting Type-C agreements without first evaluating the recommended sentence in light of the defendant’s Guidelines range. So in the usual case the court’s acceptance of a Type-C agreement and the sentence to be imposed pursuant to that agreement are “based on” the defendant’s Guidelines range.
Thus, the Court said, petitioner Erik Hughes is eligible for relief under Sec. 3582(c)(2). The District Court accepted his Type-C agreement after concluding that a 180-month sentence was consistent with the Guidelines, and then calculated Hughes’ sentencing range and imposed a sentence it deemed “compatible” with the Guidelines. The sentencing range was thus a basis for the sentence imposed. And because that range has since been lowered by the Commission, the district court has the discretion to decide whether to reduce Hughes’ sentence after considering the 18 USC 3553(a) sentencing factors and the Sentencing Commission’s relevant policy statements.
There is an interplay between statutory mandatory minimum sentences and Guidelines. We see it often. A defendant has an advisory Guideline range of 33-41 months for a drug offense, but because she was charged with trafficking in 30 grams of cocaine base, a mandatory minimum sentence of 60 months is prescribed by 21 USC 841(b)(1)(B)(iii). The Guidelines specify that when a statutory minimum sentence is higher than the top end of the advisory Guidelines range, the advisory Guidelines range is considered to be a minimum and maximum of 60 months.
When a defendant is saddled with a mandatory minimum sentence, there is nothing that will trump the minimum other than cooperation with the government (or in rare cases, a “safety valve” sentence under 18 USC 3553(f)). That’s a principal reason that everyone cooperates: it’s one thing to declare oneself a “stand up” guy who won’t rant out co-conspirators over a couple of beers with buddies, but it’s another thing entirely to serve 20 years in a beerless federal prison while those same friends are at home quaffing brews.
Under 18 USC 3582(c)(2), a defendant is eligible for a sentence reduction if she was initially sentenced “based on a sentencing range” that was later lowered by the United States Sentencing Commission. The five defendants in Koons claimed to be eligible for a reduced sentence in the wake of the Sentencing Commission’s 2014 reduction of the drug quantity tables. The defendants were convicted of drug offenses that carried statutory mandatory minimum sentences, but they received sentences below these mandatory minimums, because they “substantially assisted” the Government in prosecuting other drug offenders within the meaning of 18 USC 3553(e).
The Supreme Court held that the defendants’ sentences were “based on” the statutory mandatory minimum and on their substantial assistance to the Government, not on sentencing ranges that the Sentencing Commission later lowered. In other words, what you see is what you get – no pretending that the beneficial sentence for helping out ol’ Uncle Sugar was based on the Sentencing Guidelines rather than on you saving your own skin.
Therefore, the Koons defendants were ineligible for Sec. 3582(c)(2) sentence reductions.
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
WILL THE KARDASHIANS SAVE SENTENCE REFORM?
Talk about headlines we never imagined ourselves writing… The twists and turns of federal sentence and prison reform legislation get weirder and weirder. Last week, as Senate Republicans fought one another over whether FIRST STEP Act (H.R. 5682) did enough to benefit prisoners, President Trump had a sit-down in his office with Kim Kardashian over a commutation for Alice Martin, a grandmother doing life at FCI Aliceville, and then pardoned a conservative New York filmmaker who did 8 months in a halfway house over a two-bit campaign finance crime.
So why does this matter to federal prisoners?
To start, The Hill reported last week that the Senate is “under growing pressure” to take up the FIRST STEP Act, which is a priority Trump son-in-law and senior adviser, Jared Kushner. But Senate negotiators say they are not close to a deal that would allow the bill to move quickly.
Instead, the fight is pitting two influential senators, John Cornyn (R-Texas) and Judiciary Committee Chairman Charles Grassley (R-Iowa), against each other as they back competing bills. “We’ve got work to do here on building consensus… but right now we don’t have it,” Cornyn said last week. The divisions could scuttle any chance that the Trump-backed FIRST STEP becomes law this year.
Both Cornyn and Grassley are signaling they plan to press forward with trying to build support for their own separate bills once the Senate returns to Washington, D.C., this week. “We’re going to take up my bill,” Grassley said, referring to the Sentence Reform and Corrections Act (S.1917). “Or I should say, my bipartisan bill that’s got 28 co-sponsors — equal number Republicans and Democrats… What the House does through [FIRST STEP] is about the equivalent of a spit in the ocean compared to what the problem is of too much imprisonment.”
SRCA would link prison reform to reductions in mandatory minimums for certain drug offenses, correction of stacked 924(c) convictions, and retroactivity of the 2010 Fair Sentencing Act. Both Grassley and Durbin say they’ve made a deal not to separate the prison and sentencing reform components despite pressure from the White House.
The Hill reports that SRCA is unlikely to be taken up in the Senate given opposition from Trump officials, chiefly Attorney General Jefferson Beauregard Sessions III. Grassley admitted last week he has not yet convinced Senate Majority Leader Mitch McConnell (R-Kentucky) to bring SRCA to the floor. “You’ve got to remember that McConnell doesn’t like the bill,” Grassley said, “and all I can say is that you ought to let a Republican president who needs a big, bipartisan victory have a bipartisan victory.”
Last week, McConnell told senators, “Look, guys, if you all can get your act together and come up with something that you’re comfortable with, that the president will sign, I’d be willing to take a look at it.”
Enter Kim Kardashian West, reality TV star and wife of Kanye West. Kim, who made early release for federal prisoner Alice Martin. Kardashian visited the White House on Wednesday to urge President Trump to commute the sentence of a 63-year-old grandmother serving life for a first-time drug offense. In pleading her case for a commutation for the inmate, Kardashian seized upon draconian federal sentencing practices that can put low- or midlevel nonviolent offenders away for decades, even life.
Interestingly, Trump – who tends to agree with the last person who spoke to him –tweeted that he and Kardashianhad a good visit, and talked about “prison reform and sentencing.” This left some observers hopeful that the President was listening to people other than Sessions, and was about to signal his support for adding some sentencing reform measures to FIRST STEP. At the same time, Trump’s interest in harsh sentencing may help McConnell find some backbone to put FIRST STEP and SRCA to a vote.
Meanwhile, debate continued about the FIRST STEP Act. The liberal opponents of FIRST STEP argue that passing the bill, which lacks any reform of mandatory minimum sentence, would leave Congress and the administration believing they had solved mass incarceration, and thus not willing to address the issues at the heart of the prison problem anytime soon. But the Washington Post suggested this fear is overblown:
If Democrats take control of the House in November, they will be able to revisit the issue anytime they want — but they will have real clout to go along with their passion,” the Post said. “Nothing in the current bill precludes bolder, more comprehensive action when the votes, and the president’s pen, are lined up and ready.
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
SUPREME COURT NIXES CHANCE TO ANSWER QUESTION LEFT HANGING BY BECKLES
A few weeks ago, we reported that the Supreme Court had relisted three related cases an unusual number of times. (A relist is when the Supreme Court schedules a certiorari petition for a decision at the weekly Friday justices’ conference, but then defers any decision until the next conference, essentially “relisting” it on the next week’s conference list).
SCOTUSBlog noted last week, “It’s curious when cases that have been relisted as many as ten times are denied review without even a short statement respecting denial. But perhaps, just as the most effective dissent from denial of cert is never seen (because the court just decides to go ahead and grant review), maybe someone wrote a killer concurrence.”
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
11TH CIRCUIT PANEL BARS 2255 BRADY CLAIM, THEN ASKS EN BANC COURT TO REVERSE DECISION
It’s pretty rare to see an appeals court beg for en banc review to reverse Circuit precedent, but a 3-judge panel of the 11th Circuit did that last week.
Gino Scott was convicted by a jury over a decade ago of drug trafficking. As do most defendants who lose jury trials, he filed a direct appeal and then a 2255 motion. He lost those. But a few years later, the government admitted to his trial court that it had Brady information about how its informant, whose testimony had help nail Gino, lied about his background on the stand.
Gino filed a second 2255 motion based on the newly-revealed information. But under 28 USC 2244, newly-discovered evidence will not allow a second-and-successive 2255 to go forward unless the new evidence would establish that no reasonable jury would have found the defendant guilty of the underlying offense.
The Supreme Court has held that not every second 2255 is a “second-and-successive” 2255 motion. Instead, “to determine whether an application is ‘second or successive,’ a court must look to the substance of the claim the application raises and decide whether the petitioner had a full and fair opportunity to raise the claim in the prior application.” But the 11th Circuit previously held in Tompkins v. Secretary, DOC that this Supreme Court holding did not apply to second 2255s raising Bradyclaims.
In last week’s decision, the 11th Circuit panel argued that Tompkins is wrong, and that a newly-discovered Brady claim is not a second-and-successive 2255. But, for the uninitiated, a three-judge panel has no power to reverse a prior published circuit decision. Rather, unless a Supreme Court decision does so, only the Court sitting en banc has the right to abandon Circuit precedent.
For that reason, after Gino’s panel explained in great detail why Tompkinswas wrong, it was nevertheless obligated to apply Tompkins to deny Gino’s claim anyway. Gino’s court ended with a plea to the other judges in the Circuit: “Supreme Court precedent, the nature of the right at stake here, and habeas corpus require a petitioner who has reasonably probably been convicted because the government failed to disclose material exculpatory evidence, to have a full and fair opportunity to obtain relief. For this reason, we urge our colleagues to rehear this case en banc and reevaluate the framework we established in Tompkins.”
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
BOP DIRECTOR QUIT BECAUSE OF SESSIONS AND KUSHNER
As we reported last week, BOP director Mark Inch quietly resigned, ironically packing up his office a week ago last Friday even as President Trump’s senior adviser and son-in-law, Jared Kushner, was praising Inch’s leadership during a White House conference on prison reform. At the time, no one knew why he quit.
Now we do. The New York Times reported late last Thursday that Inch, a retired Army major general who had been appointed to oversee the Bureau just nine months ago, felt marginalized by Kushner’s prison reform planning, according to three unnamed sources the Times said had with knowledge of the situation. But even more than his ire at Kushner, Inch – a consummate bureaucrat – was frustrated with his boss, Attorney General Sessions, and believed he was in caught in the crossfire of a turf war between Kushner and Sessions, like Ben Franklin’s proverbial “mouse between two cats.”
Sessions had frozen Inch out of budget, staffing, and policy decisions, the Times reported, refusing even to approve his choice for deputy prisons director, the Times reports. For months Inch pleaded with Deputy AG Rod Rosenstein to install Sara M. Revell, North Central Region director, as his top deputy. Rosenstein repeatedly told Inch that Sessions had not yet approved the appointment. Inch reportedly resented Sessions’ habit of communicating with him through junior DOJ lawyers.
Inch also told Rosenstein he was tired of the Trump administration flouting “departmental norms,” and he was frustrated by Sessions trying to thwart Kushner’s reforms. This hardly meant that Inch was a fan of the FIRST STEP Act, however: the Times said Inch objected to the Kushner-backed requirement that inmates be placed in prisons within 500 miles of their homes. He also believed the FIRST STEP earned-credits program for more halfway house was impractical, in part because of a lack of available beds in halfway houses.
Mostly, it seems Inch was offended that he was largely excluded from discussion of prison reform bill. Even that shutout appears to have been engineered by Sessions. Two senior White House officials said Kushner made a point of inviting Inch to prison reform meetings, but Sessions often sent other officials in his place.
The Times said Inch – whose career was spent in the Army criminal justice and prison system – struggled to publicly explain the BOP’s response to sexual harassment, halfway house and staffing problems. Watching Inch testify before Congress was like getting a tooth pulled without novocaine. The director practiced James H. Boren’s bureaucrat’s creed: “When in doubt, mumble; when in trouble, delegate; when in charge, ponder.”
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
FUTURE OF THE FIRST STEP ACT IS FAR FROM CLEAR
Supporters of a federal criminal justice system overhaul seemed well on their way to victory after the FIRST STEP Act breezed through the House last week on an impressive bipartisan vote. The Act, H.R. 5682, has strong administration backing, including the fingerprints of Jared Kushner, the presidential adviser and son-in-law. It has some important Senate supporters. But a lot of informed people are still predicting that neither the FIRST STEP Act nor any other criminal justice reform bill will pass the Senate this year.
First, senior Senate authors of the long-stalled Sentencing Reform and Corrections Act, S.1917 – including Senate Judiciary chairman Charles Grassley (R-Iowa), are steadfastly opposed to FIRST STEP. They consider it an insufficient half-measure for its focus on prison programs without changes in federal sentencing laws. Plus, Grassley is still smarting from his inability to pass SRCA last year, and he says he’s not going down without a fight.
Second, Senate Majority Leader Mitch McConnell (R-Kentucky) is highly unlikely to try to move the bill through the Senate as long as Grassley is opposed to it, according to Republican senators and aides. They say McConnell, who is not that keen on criminal justice legislation in general, is definitely uninterested in circumventing his Judiciary Committee chairman and provoking an intra-party fight that would eat up weeks of floor time. A Republican senator said flatly of McConnell’s view of the bill right now: “It’s not on the priority list.” If McConnell decides not to bring the bill to a vote, no one can force him to do so.
Third, impressive groups of opponents to FIRST STEP are lining up on both sides of the aisle. Attorney General Jefferson Beauregard Sessions III Sessions, a former senator himself, opposes SRCAand is lukewarm about FIRST STEP. And even the narrower FIRST STEP bill will probably face opposition on the right from Sessions’ allies, like Senator Tom Cotton (R-Arkansas), who once memorably said America has an “under-incarceration problem” and is reportedly stirring up opposition to FIRST STEP among law enforcement groups.
At the same time, FIRST STEP is opposed by some civil-rights groups, former Attorney General Eric Holder, and a coalition of leading Senate Democrats, including Richard Durbin (D-Illinois), Cory Booker (D-New Jersey), and Kamala Harris (D-California). In a letter last week, the senators said FIRST STEP would be “a step backwards” and that prison reform would fail if Congress did not simultaneously overhaul the nation’s sentencing laws. Also signing the letter were Representatives Sheila Jackson Lee (D-Texas) and John Lewis D-Georgia).
Last Wednesday, a group of senators asked McConnell for a last-ditch negotiation session to seek an acceptable compromise. SRCA backers fear this may be the only chance for years to come to pass major criminal justice reform. “You don’t get many opportunities around here to do anything meaningful or substantive,” said Durbin, a chief author of the sentencing provisions. “Let’s not waste this one. Let’s get this right.”
Although Trump supports FIRST STEP, it’s unclear how he would react if Congress sent him a bill that included SRCA-style sentencing reforms. A prison reform-only bill gives Trump what he wants: To look tough to his base by not budging on sentences while also showing evangelicals he believes in “second chances.” Adding sentence reform might be too much for him.
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
THE 6TH CIRCUIT’S REFRESHINGLY DEFERENTIAL APPROACH TO INEFFECTIVE ASSISTANCE
In an opinion piece in theWall Street Journalyesterday,Richard Miniter urged President Trump to demand the returnof theUSS Pueblo, still held by North Korea after its 1968 illegal seizure in international waters. Miniter recalled Navy Commander Lloyd Bucher’s leading the crew to resist the North Koreans, who starved and tortured them. Once, the article recounted, Cmdr. Bucher instructed the crew to raise theirmiddle fingers, a gesture he told his captors was a “Hawaiian good-luck sign.”
The change-of-plea pas de deux for defendant and judge in a federal criminal proceeding is dictated by Federal Rule of Criminal Procedure 11, and bears more than a passing resemblance to the staged photos and confessions so favored by despots such asRocket Man, hisdaddy andgrand-daddy. The defendant is asked whether everything has been fully explained to him, whether he’s happy with his lawyer, whether anyone has promised him anything not in the plea agreement, whether he feels forced into pleading guilty…
The truth, of course, is that the defendant is rarely happy with his lawyer right about then, usually has a slew of questions (many of which he does not yet know enough to ask), was told by counsel that all sorts of bad things would happen if he rejected the plea but that he would be treated gently if he took the deal… You get the idea. Deciding whether to accept a plea offer is a complex weighing of many factors: ironically, one of the least important, at least in the federal world, is whether the defendant is guilty of the offense.
Lawyers always tell their clients to not speak out of turn, let counsel do the talking, and – when asked any of the questions we described above – to answer affirmatively. Clients, fearful of the consequences of screwing up the plea deal after they had made the psychic investment needed to accede to it, follow counsel’s advice.
Of course, down the road the defendant may realize that counsel’s advice was not the gold-leaved diamond he believed it to be when he pled guilty or appeared for sentencing. Then, his defense attorney becomes a convincing witness for the government, and the defendant is, as Big Brother put in the iconic Apple Mac“1984” ad,buried with his own confusion.
Indeed, sometimes it seems the only time a district court believes a defense attorney is when he or she provides an affidavit opposing a defendant’s 28 USC 2255 motion. Last week, however, the 6th Circuit threw the hammer on defendants’ behalf, reminding district courts that something more than mindless rejection of 2255 ineffective-assistance-of-counsel motions is required by the law.
Andy Martin pled guilty to a scheme to rip off a mentally disabled patient, and then of conspiring to kill the patient’s trustee in order to pull off the fraud. Before sentencing, an attorney representing him in a civil suit over the same situation convinced him to file a pleading in the civil case in which Andy denied any intent to defraud the patient.
At sentencing, the government produced the pleading from the civil case, and argued Andy should not get any credit for acceptance of responsibility. Andy’s lawyer argued that the) motion was out of character for Andy, that he filed it in a misguided attempt to mitigate the damage done to his family, and that he nevertheless demonstrated an acceptance of responsibility by pleading guilty and in his allocution at the sentencing hearing. The district court denied any points off for acceptance.
Andy filed a pro se 2255 motion arguing that his trial attorneys provided ineffective assistance of counsel by telling him to file the civil motion, causing him to lose the 3-point reduction for acceptance of responsibility. Andy said one of his lawyers insisted that Andy include language in the civil motion that was contradictory to his guilty plea statement, and, when Andy asked whether it would affect his criminal case, his attorneys “assured him it wouldn’t.” Andy included an affidavit from his wife and mother saying the same thing.
The Government filed an opposition, attaching affidavits from Andy’s trial lawyers, the fee agreement between Andy and his lawyer relating to the civil case, and a billing statement from his lawyer for the civil representation.
Andy’s court denied the motion, saying that “although he asserts that there are facts in dispute, Martin offers no proof beyond mere self-serving allegations that either counsel was ineffective.”
The 6th Circuit reversed, pointing out that Andy has presented far more than mere assertions of innocence. Andy’s 2255 motion contained specific factual allegations about the deficiencies of his attorneys’ advice and assistance relating to the civil motion. He alleged his lawyer agreed to advise him on the civil matter and that Andy paid him a $4000 retainer. He alleged that between his lawyer advised him to file the civil motion, reviewed his draft motion, insisted that he include language that contradicted his guilty plea, and assured him that it would not affect his criminal case or sentencing.
Because Andy presented factual allegations that supported his ineffectiveness claim, the Court said, he is entitled to an evidentiary hearing unless the allegations cannot be accepted as true because “they are contradicted by the record” or are “inherently incredible.” The court’s statement that Andy offered no proof beyond “mere self-serving allegations” failed to acknowledge that Andy supported his allegations with more than just his own words, but the words of others, too. Plus, a “self-serving” affidavit is not inherently incredible. Most affidavits are self-serving. In fact, in the 6th Circuit, a defendant’s statements alone are sufficient to support a finding that he would have accepted a plea offer.
A self-serving affidavit is not the same as a conclusory one. And the fact that Andy did not object at sentencing when the court snatched away the 3-level reduction does not mean much, either, the Court said. “It is unusual—and generally discouraged—for a represented defendant to make objections on his own, to make his own arguments outside allocution, or to otherwise interrupt the judge or lawyers at his sentencing hearing. Martin’s failure to independently object may simply reflect a client’s reasonable decision to rely on his attorneys and follow typical court procedure.” In other words, the defendant is not expected to employ the Hawaiian “good-luck” sign at change-of-plea or sentencing in order to protect his rights later.
The 6th’s decision is a refreshing explanation of all the reasons district courts often place unjustified reliance on what a defendant does or does not say at sentencing, and how the fact that a defendant’s 2255 motion does not prove a fact does not necessarily make the fact inherently incredible, and thus undeserving of a hearing.
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
FULL HOUSE OF REPRESENTATIVES PASSES FIRST STEP ACT, PUTS THE BALL IN THE SENATE’S COURT
The U.S. House of Representatives upped the ante on criminal justice reform late yesterday afternoon by passing the admittedly limited (and some say flawed) FIRST STEP Act,H.R. 5682, by an overwhelming 350-59 vote.
The House Judiciary Committee approved the bill two weeks ago by a 25-5 vote, sending it to the House floor for a vote, replacing the Prison Reform and Redemption Act, H.R. 3356. Reps. Doug Collins (R-Georgia) and Hakeem Jeffries (D-New York), co-sponsors of the PRRA, wheeled and dealt with committee members to revise a number of provisions, which resulted in their introducing the new FIRST STEP Act.
But if the measure did become law as it is written today, this is some of what it would do:
(1) RISK ASSESSMENT AND PROGRAMMING CREDIT
FIRST STEP proposes to use a new “risk assessment” tool, which the Federal Bureau of Prisons will develop and employ over 18 months to calculate how likely an inmate is to commit new crimes upon release. Once everyone is assessed as minimum, low, medium or high, some inmates will be entitled to get earned-time credits that may be cashed in for more halfway house or home confinement that what BOP was otherwise prepared to offer.
The BOP is responsible for identifying the programs that will entitle inmates to credit. Programs that could earn credit include working at UNICOR, RDAP, GED and adult education programs, as well as mental health programs. Inmates participating the approved programs can earn 10 days of credit for every 30 days of classes. Once an inmate has worked down to the minimum risk for recidivism, he or she can get 15 days for every 30 days of programming. The bill also provides that while inmates are successfully completing courses, the BOP should extend other benefits, including higher commissary spending limits, longer phone time, more visiting hours, and closer-to-home transfers. The bill suggests that all inmates can earn these rewards, but only eligible inmates can get time credits.
Priority for participation in recidivism reduction programs is to be given to medium-risk and high-risk prisoners, with access to productive activities given to minimum-risk and low-risk prisoners. Inmates may use credits earned in the programs to serve more time in halfway houses or on home confinement.
(2) GOOD TIME INCREASE
Title 18, USC 3624(b) has always said that inmates can earn 54 days a year in good time. The BOP, however, interpreted the statute to mean that after a year, you get your 54 days. Everyone else thought that you get 54 days after 319 days, to make a full year. The difference in interpretation, upheld by the Supreme Court, was seven days.
FIRST STEP cleans up the good-time language of 18 USC 3624(b) to give inmates the extra seven days, and makes the change retroactive to the first day of all current sentences. So in a 60-month sentence, an inmate would get 35 more days lopped off his sentence. It may not seem like a lot, but everyone with an “out date” – no matter what the offense – gets the cut. This is estimated to affect 93% of all federal inmates (the remainder serving life sentences or on death row).
(3) CLOSER TO HOME
The bill also directs the BOP to make placing an inmate near home for his or her whole bit a top priority. BOP still has wiggle room for bed space, programming, CIM status and the such, but the 500-mile distance will now be 500 driving miles, not the 500 straight-line miles BOP used previously, which were a hardship to so many. And it will make the 500-mile limit a statutory imperative, harder for the BOP to ignore.
(4) MAX HOME CONFINEMENT
The bill also amends 18 USC Sec. 3624(c)(2) to require the BOP, “to the extent practicable, place prisoners with lower risk levels and lower needs on home confinement for the maximum amount of time permitted under this paragraph.” That time, 10% of a sentence up to a maximum of six months, remains unchanged.
(5) ELDERLY OFFENDER, COMPASSIONATE RELEASE WILL BE D-I-Y
The bill changes the elderly offender program, extending it to the whole BOP system, not just a few prisons. It also drops the age for elderly offenders from 65 to 60, drops the requirement that the amount of the sentence served from 75% to 67%, and completely eliminates the requirement that the inmate serve a minimum of 10 years.
Best of all, the elderly offender program, the eligible terminally ill offender program, and the compassionate release programs would all now permit the inmate himself or herself to file with the courts for relief if the BOP fails or refuses to make the request itself.
(6) SO WHO IS ELIGIBLE?
Everyone other than those with life sentences will get an additional seven days off per year, retroactive to the beginning of their current sentence. Likewise, everyone will be eligible for in-prison benefits like higher commissary limits, better visitation, preferential housing, or more phone time.
However, the real prize for completion of rehab programs will be the RRC credits, additional time awarded to people for halfway house or home confinement, and there is a long list of inmates not eligible for RRC credits. The most common excluded categories are people serving sentences under Title 18 or Title 21 for
(1) Sec. 113(a)(1), relating to assault with intent to commit murder.
(2) Sec. 115, relating to influencing, impeding, or retaliating against an official by injuring a family member, except for a threat made in violation of that section
(3) Any section of chapter 10, relating to biological weapons.
(4) Any section of chapter 115, relating to chemical weapons.
(5) Any Sec. of chapter 39, relating to explosives and other dangerous articles, except for Sec. 836 (relating to the transportation of fireworks into a State prohibiting sale or use).
(6) Sec. 842(p), relating to distribution of information relating to explosive, destructive devices, and weapons of mass destruction, but only if the conviction involved a weapon of mass destruction (as defined in Sec. 23382a(c)(2) of such title).
(7) Subsec. (f)(38), (h), or (1) of Sec. 844, relating to the use of fire or an explosive.
(8) Sec. 924(e), relating to unlawful possession of a firearm by a person with 3 or more convictions for a violent, felony.
(9) Sec. 10380(a)(1), relating to fraud and related activity in connection with computers.
(10) Any section of chapter 951, relating to homicide, except for Sec. 1112 (relating to manslaughter), 1113 (relating to attempt to commit murder or manslaughter, but only 1f the conviction was for an attempt to commit manslaughter), 1115 (relating to misconduct or neglect of ship officers), or 1122 (relating to protection against the human immunodeficiency virus).
(11) Any section of chapter 55, relating to kidnapping.
(12) Any offense under chapter 77, relating to peonage, slavery, and trafficking in persons, except for Secs 1592 through 1596.
(13) Sec. 1751, relating to Presidential and Presidential staff assassination, kidnapping, and assault.
(14) Sec. 1841(a)(2)(C), relating to intentionally killing or attempting to kill an unborn child.
(15) Sec. 1992, relating to terrorist attacks and other violence against railroad carriers and against mass transportation systems on land, on water, or through the air.
(16) Sec. 2113(e), relating to bank robbery resulting in death.
(17) Sec. 2118(e)(2), relating’ to robberies and burglaries involving controlled substances resulting in death.
(18) Sec. 2119(3), relating to taking a motor vehicle (commonly referred to as ‘carjacking’) that results in death.
(19) Any section of chapter 109A, relating to sexual abuse, except that with regard to Sec. 2244, only a conviction under subsec. (c) of that section (relating to abusive sexual contact involving young children) shall make a prisoner ineligible under this subparagraph.
(20) Sec. 2251, relating to the sexual exploitation of children.
(21) Sec. 22514, relating to the selling or buying of children.
(22) Any of paragraphs (1) through (3) of Sec. 2252(a), relating to certain activities relating to material involving the sexual exploitation of minors.
(23) A second or subsequent conviction under any of paragraphs (1) through (6) of Sec. 2252A(a), relating to certain activities relating to material constituting or containing child pornography.
(24) Sec. 2260, relating to the production of sexually explicit depictions of a minor for importation into the United States.
(25) Sec. 2284, relating to the transportation of terrorists.
(26) Sec. 2291, relating to the destruction of a vessel or maritime facility, but only 1f the conduct which led to the conviction involved a substantial risk of death or serious bodily injury.
(27) Any section of chapter 1135, relating to terrorism.
(28) Sec. 2340A, relating to torture
(29) Sec. 2381, relating to treason
(30) Sec. 2442, relating to the recruitment or use of child soldiers.
(31) Sec. 401(a) of the Controlled Substances Act (21 U.S.C. 841) relating to manufacturing or distributing a controlled substance, but only in the case of a conviction for an offense described in subparagraph (A), (B), or (C) of subsec. (b)(1) of that section for which death or serious bodily injury resulted from the use of such substance.
(32) Sec. 276(a) of the Immigration and Nationality Act (8 U.S.C. 1326), relating to the reentry of a removed alien, but only if the alien is described in paragraph (1) or (2) of subsec. (b) of that section.
(33) Sec. 601 of the National Security Act of 1947 (50 U.S.C. 3121), relating to the protection of identities of certain United States undercover intelligence officers, agents, informants, and sources.
(34) An offense described in Sec. 3559(c)(2)(F), for which the offender was sentenced to a term of imprisonment of more than one year, if the offender has a previous conviction for which the offender served a term of Imprisonment of more than one year, for a Federal or State offense, by whatever designation and wherever committed, consisting of murder (as described in Sec. 1111), voluntary manslaughter (as described in Sec. 1112), assault with intent to commit murder (as described in Sec. 113(a)), aggravated sexual abuse and sexual abuse (as described in Secs 2241 and 2242), abusive sexual contact (as described in Secs 2244(a)(1) and (a)(2)), kidnapping (as described in chapter 55), carjacking (as described in Sec. 2119), arson (as described in Sec. 844(f)(3), (h), or ()), or terrorism (as described in chapter 113B).
Last week, the 3rd Circuit held it lacked jurisdiction to hear the appeal, because the government’s failure to file a timely petition for reconsideration let the district court’s suppression order become final. The 30-day deadline for the government to appeal, set by Federal Rule of Appellate Procedure 4(b)(1)(B) is jurisdictional, the Circuit ruled, meaning that blowing the deadline was an error that could not be fixed. Here, the 30-day deadline to file a notice of appeal passed while the government was pursuing its untimely reconsideration.
