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CHOOSING PRISON

One of our favorite television shows back in the 80s was the short-lived Sledge Hammer!, a comedic takeoff about an over-the-top San Francisco cop (obviously modeled on Clint Eastwood’s Dirty Harry Callahan).

Among Inspector Sledge’s favorite observations was his thesis that “criminals have no rights: they give up their rights when they choose to become criminals.”

Well, life has always imitated that piece of art where inmates’ child support obligations are concerned. States generally adhere to the rule that voluntary unemployment is not a reason to reduce child support. That makes sense. But courts also reason that commission of a crime is a voluntary act, and incarceration is a logical and foreseeable consequence of committing a crime. Because “A” is voluntary, and “B” is the logical and foreseeable result of “A”, the states conclude therefore that “C” – going to prison – must be a voluntary act, too, the moral equivalent to quitting a job. Thus, inmates must suffer letting the child-support meter run wild while they’re in prison.

And suffer they do. A 2010 government survey found 51,000 federal prisoners –one out of four in the system – have child support orders, with over half of those inmates behind on payments, owing an average of about $24,000.

So, to channel Sledge Hammer, criminals choose to go to prison. If they’re released with a $24,000 debt hanging over them, so what?

The “voluntary prison” rule against child-support modification is as deeply flawed as it is superficially appealing. The notion of criminal conduct – especially breaking federal laws – being a voluntary choice of the criminal underclass is a myth. It was best put by Judge Alex Kozinski of the 9th Circuit in his 2009 essay You’re (Probably) A Federal Criminal: “Most Americans are criminals, and don’t know it, or suspect that they are but believe they’ll never get prosecuted.” His point? Currently, there are nearly 5,000 federal criminal statutes and over 30,000 criminal regulatory offenses in the Code of Federal Regulations. Breaking federal law is as easy as getting out of bed in the morning.

For example, 52% of all Americans 18 to 25 have possessed marijuana at least once, and 46% of all Americans over 25 have done the same. By the simplistic reckoning of the “voluntary prison” syllogism, each of these people has voluntarily committed a felony (violation of 21 USC 844) and each thus has a reasonable expectation of incarceration as a result. Although federal prosecution for simple drug possession is rare, it can happen any time at the government’s discretion. And that is precisely Judge Kozinski’s point.

What’s more, contrary to the supposition that criminals can reasonably expect prison to follow crime, that is hardly true. Beyond the fact that 23.4 million people over the age of 18 committed the federal offense of drug possession, but only 108 people were prosecuted for it, national crime statistics show that the likelihood that crime will lead to punishment is way less than certain. A person who commits murder has a 37.5% chance of not being prosecuted. A rapist has a 60.0% chance of not being prosecuted. A robber has a 72.1% chance of not being prosecuted. And for job security, nothing beats burglary, which has an 87.3% chance of not being solved.

There simply are no data to support the theory that someone who commits a crime in the United States has reason to believe that he or she will be locked up. Some may, others may not, but – like the question of whether unemployment is voluntary – it is a question of fact, not one of law.

So what is the effect of the “voluntary prison” child-support rule? Prisoners who were diligent at paying child support before being locked up are deeply in debt when they are released, and suffer the same loss of licenses and government services reserved for deadbeat dads who never left the street. In addition to the stigma associated with being an ex-con, a released offender owing past-due child support is hobbled by denial of the basics needed to be re-established as a productive member of society. Why punish a guy for five years when you can do it for a lifetime?

There’s a reason for our rant. On Monday, the U.S. Department of Health and Human Services Administration for Children and Families announced some sanity, new rules that will requires state child support to ensure that child support orders – the amount noncustodial parents are required to pay each month – reflect the parent’s ability to pay. Tucked into that rule is reform of the “voluntary prison” rule.

The new regs require that prisoners be allowed to seek to lower the amount of child support they pay while in prison. This is not just a bone thrown to prisoners, but rather one that studies show will ultimately increase support payments for kids. “Orders often go unpaid when they are set beyond the ability of unemployed and low-wage parents to pay them, resulting in large arrearages that themselves lead to less employment and support paid. The rule is intended to ensure that all families receive the support they need,” Vicki Turetsky, Commissioner, HHS Office of Child Support Enforcement, said in a statement.

Under the new rules, states will no longer be allowed to treat incarceration as “voluntary unemployment.” States will also be required to notify both parents of the right to seek changes to child support payments if one of the parents is incarcerated for more than six months.

No one knows whether the new rule will face opposition from incoming Republican President Donald Trump or the Republican congress. While some lawmakers have opposed the regulations, arguing they would allow parents to avoid their financial responsibilities, it may be that the issue is too small to be able to compete with all of the other issues facing the new Congress and President.

Reuters, Obama administration revamps child support rules for prisoners (Dec. 19, 2016)

U.S. Dept. Health & Human Services, New rule will increase regular child support payments to families (Dec. 19, 2016)

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 WHAT ARE THE ODDS?

Business is falling off at the United States Courts of Appeal, but for a change you can’t blame the criminal element for the slump. In a report issued yesterday, the Judiciary Data and Analysis Office of the Administrative Office of the U.S. Courts reported that while last year saw a 1 percent decrease in appellate filings, criminal appeals increased by 15 percent.

The increase in direct criminal appeals, according to the JDAO, was fueled by drug cases, mostly for drugs other than marijuana. This suggests either a decrease in enforcement efforts aimed at pot or the increase in opioid distribution, or – most likely – a combination of the two.

Curiously, 2015 showed the fifth consecutive year of decrease in the prisoner petition category, which includes post-conviction appeals of 2254 and 2255 motions. The number of prisoner petition appeals fell by 7.2 percent from 2014, and is down by 12 percent from 2011.

The JDAO reports that the overwhelming majority of appeals are unsuccessful. Fewer than 9 percent of cases decided in 2015 resulted in reversals of lower courts. Unsurprisingly, it’s worse for direct appeals of criminal cases: only 6.9 percent of district court convictions or sentences are reversed, and this figure does not differentiate between overturned convictions and cases where the conviction is upheld but the sentence is vacated. Prisoner petitions fare even worse: last year, only 4.6 percent resulted in reversals of district court decisions in those cases.

The courts are getting quicker in resolving cases, because, after all, how long can it take to say ‘no’? Median disposition times for cases have fallen by 20 percent over the past five years, from 10.8 months in 2011 to 8.6 months in 2015. The appellate courts started the year with 2,221 federal post-conviction cases pending, and added another 4,034 filings to that pile during the year. The courts decided 4,000 of the cases, ending the year with just about the same backlog as it had at the start.

The number of 2255 appeals pending at the end of the year? An ironic 2,255 of them.

Judiciary Data and Analysis Office, Administrative Office of the U.S. Courts, Just the Facts: U.S. Courts of Appeals (Dec. 20, 2016)

Statistical Tables for the Federal Judiciary (Dec. 20, 2016)

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YESTERDAY’S NEWS

Criminal justice news was dominated yesterday by more Obama Administration grandstanding on clemency, as the outgoing President commuted 153 sentences and pardoned another 78 people who had already done their time. Although the pardons spanned a variety of offenses from perjury to manslaughter, the commutations were again all for drug offenders.

None of the pardoned offenders was Hillary Clinton, Chelsea (née Bradley) Manning or Edward Snowden. Deputy Attorney General Sally Q. Yates said Obama is not done. “Today, another 153 individuals were granted commutations by the President. Over the last eight years, President Obama has given a second chance to over 1,100 inmates who have paid their debt to society. Our work is ongoing and we look forward to additional announcements from the President before the end of his term.”

With yesterday’s announcement, Obama has commuted 62.3% of his self-proclaimed goal of 2,000 sentences. No panic. He still has 30 days left.

In more interesting news, the U.S. Court of Appeals for the 1st Circuit reversed the racketeering convictions of Massachusetts Probation Office chief Jack O’Brien and two other senior officials who had “abused the hiring process to ensure that favored candidates were promoted or appointed in exchange for favorable budget treatment from the state legislature and increased control over the Probation Department.”

The Probation Office had detailed and influence-neutral hiring procedures in place. However, while the senior officials assured Massachusetts judges that the Office was following the handbook, they in fact hired unqualified candidates favored by influential lawmakers to ensure that they maintained “a good rapport with the legislature to facilitate a beneficial budget to the Probation Department.” The scheme unraveled in 2010 when the Boston Globe reported that ‘After 12 years in charge, Jack O’Brien has transformed the Probation Department from a national pioneer of better ways to rehabilitate criminals into an organization that functions more like a private employment agency for the well connected…”

The Feds, never ones to overlook a chance to capitalize on a high-profile story, obligingly indicted the three under the Racketeering Influenced and Corrupt Organizations Act, 18 U.S.C. 1962(d). After a 47-day trial, a confused jury convicted them of the RICO conspiracy and a few of the underlying mail-fraud counts, but acquitted them of bribery.

Holding that “not all unappealing conduct is criminal,” the 1st Circuit yesterday held that the RICO charge was not proven. The Court said that just showing that goldbricks and idiots were hired “to build a reservoir of goodwill that might ultimately affect one or more of a multitude of unspecified acts, now and in the future” was not enough: the government had to show that the hiring of sponsored applicants was linked to a specific official act by the sponsor.

The Circuit threw out the mail fraud convictions as well. The government argued that use of the mails to send unsuccessful candidates their rejection letters was enough to bring the case under the mail fraud statute, because “such rejection letters in a corrupt hiring system satisfy Sec. 1341‘s mailing element where they help to maintain a facade of a merit-based system.” The appellate court rejected this argument:

The Government presented no evidence that would allow the jury to infer that the rejection letters in this case served this duplicitous function. Had unsuccessful applicants received no notice, they may have assumed they were not hired or else called OCP to check their status. The Government identifies language in the rejection letters stating that “[t]he selection of the final candidate was a difficult process” and that the deputy commissioners “were very impressed with [the recipients’] qualifications” to demonstrate that the letters were intended to convince rejected candidates that their selection was based on merit. We are not convinced that such vague platitudes, hallmarks of any rejection letter, sufficiently demonstrate that the rejections had any real tendency to convey a merit-based selection system.

The Court also dismissed Government arguments that the rejection letters “tended to perpetuate the scheme by making the rejected applicant less likely to call to inquire as to his status, thereby making it less likely that such a call might lead to some inquiry that would uncover the scheme.” The Court characterized this argument as “rank speculation,” saying that the” Government’s evidence provided no plausible mechanism by which a call from a rejected applicant asking about his or her status would lead to the discovery of the scheme.”

Clearly, the 1st Circuit panel found the Government’s use of RICO – originally intended to fight the Mafia – on a two-bit political patronage scheme to be akin to the application of a meat axe where a scalpel would have sufficed.

United States v. Tavares, Case No. 14-2313 (1st Cir., Dec. 19, 2016)

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IT’S QUIET OUT THERE… TOO QUIET

President Obama has gotten strangely quiet about granting clemencies since his last 79 commutations right before Thanksgiving. He’s granted 1,023 commutations so far and denied 14,485, without much pattern as to why some are granted and many are turned down. As of today, there are 13,042 petitions still on file and only 32 days left to do something about them.

Last week, another coalition of ex-prisoners, advocates, defense attorneys and former prosecutors joined the chorus urging Obama to grant blanket clemencies to drug offenders before his term ends January 20.

But at a breakfast event last week, Attorney General Loretta Lynch poured cold water on the notion of any blanket commutation. “When you’re talking about clemency,” she said, “…it’s a very individualized decision. I think it would be hard to craft a system for a blanket commutation of a class of people.”

Some have suggested that the pace of commutations has slowed because the President is preparing a sweeping clemency gesture. After issuing two batches of commutations monthly since September, the Obama pen has lain dormant for almost 4 weeks. With time to act on the remaining applications waning, there is little explanation for the inaction other than plans are underway for a major clemency action.

We’ll know in a month.

Wall Street Journal, Barack Obama Weighs Final Requests for Clemency (Dec. 17, 2016)

CNN, AG Loretta Lynch says don’t expect blanket pardons from Obama (Dec. 15, 2016)

HOPE FOR SENTENCING REFORM IN THE NEW YEAR?

Based on their public comments, President-elect Trump and Attorney General-designate Jeff Sessions may well roll back federal oversight of troubled police forces, escalate the war on drugs, enlarge the role of private prisons, accelerate deportations, and use the threat of financial sanctions to challenge so-called sanctuary cities.

But those inclined to look for a silver lining in 2017 may find one on Capitol Hill.

A New York Times/Marshall Project analysis last week suggested four reasons why the odds of sentencing reform may be better than critics fear.

First, 2017 is not an election year, meaning legislators have less to from critics for take unpopular stands. Second, President Obama will be gone, and with him the almost fanatical resistance to any position urged by the President. Third, one of sentencing reforms biggest opponents, Jeff Sessions, will be gone from the Senate. While as attorney general, Sessions will be able to encourage a presidential veto, he won’t be be joining the obstructionists who this year never let a sentencing reform bill come to a vote at all. Finally, the Republican leadership will be looking very hard for bipartisan successes to demonstrate that Washington is no longer in a state of ideological paralysis. On the short list of things Congress could do to reassure voters that government is back in business, criminal justice ranks near the top.

The Marshall Project, Why Congress May Bring Criminal Justice Reform Back to Life (Dec. 16, 2016)

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TAKE MY WIFE… PLEASE

Almost everyone (us included) discusses federal criminal sentences in terms of months of incarceration. Although every imprisonment is followed by a statutorily-required term of supervised release, we tend to treat that as an afterthought.

It’s not. Rather, supervised release is one of those ideas that is great political theater and a great job creator for the United States Probation Office. As far back as 1994, public defenders observed that “supervised release, as it now operates, is far different from what Congress intended… What was originally designed to assist re-integration into the community is instead facilitating reincarceration.” Two years ago, a senior officer in the Probation Office for the Northern District of Ohio publicly stated that a third of all people his office supervised would be violated during their term of supervised release, a figure that suggested a failure of the system rather than a failure of the ex-offenders.

There appears to be little research on the effectiveness of supervised release, permitting us to speculate that system-wide, it provides as few useful services to ex-offenders and as many snares for the unwary as our own observations and anecdotal evidence suggests. Primarily, supervised release focuses on collecting restitution payment from ex-offenders on pain of revocation and re-imprisonment. Think of probation officers as debt collectors who can jail debtors who don’t pay enough.

But occasionally, even we – as jaded as we are – can be awed by the majesty of the arrogance of supervised release. Today’s case is one of those examples. In 2009, Cindy Hobbs and her husband were convicted of the quintessential white-collar offenses of identity theft and bank fraud conspiracy. Cindy did her 56 months, and was released. Her husband served 80 months. On supervised release, they owed a rather paltry $18,000 in restitution.

When Cindy started out on supervised release, she had no problems. But after a year, her husband was released. Cindy committed the unpardonable supervised release sins of moving and quitting her McDonald’s gig without telling her PO, of not showing up for a urine sample, and of no longer making her monthly restitution payments.

Although Cindy’s probation officer did not establish she had had any contact with her husband since his release, the government decided that he was the problem, and the district court agreed. “Ms. Hobbs was doing very well on supervision when she was living independently and Mr. Hobbs was still incarcerated,” the judge held. “And then, this contact occurs with her spouse, and those positive steps forward cease and, in fact, she absconds from supervision. That time line seems to the court to be instructive.” The court gave her 30 days in jail, reimposed her supervised release for another 3½ years, and ordered her to have no contact with her husband for the remainder of the supervised release term.

Two days ago, the 8th Circuit reversed the no-contact order. To be sure, a sentencing judge is afforded wide discretion when imposing terms of supervised release, the Court held, but special supervised-release conditions “must reasonably relate to the nature and circumstances of the offense, the defendant’s history and characteristics, deterring criminal conduct, protecting the public, and promoting the defendant’s correctional needs.”

The problem with the district court’s draconian no-contact order is that marriage is one of those constitutional things: the right to a marital relationship is a substantive due process right under the 14th Amendment ever since Loving v. Virginia. The Court of Appeals said “we are particularly reluctant to uphold sweeping restrictions on important constitutional rights.”

The Court of Appeals acknowledged that Cindy and her hubby had been “criminals in concert.” But that did not justify the “sweeping condition” imposed here. The Circuit observed that “nothing in the record shows that Hobbs’s husband influenced her to defy her release conditions… The timeline-based decision was pure speculation or assumption.”

The 8th said the “evidence did not justify effectively divorcing Hobbs from her husband during supervision to achieve any valid sentencing purpose… The state is inserting itself into Hobbs’s marital relationship in an overly broad way, and the condition thus involves a greater deprivation of liberty than is reasonably necessary.”

Because the district court’s condition was overbroad, the Court struck it down without reaching the constitutionality question, but any reader of the decision will conclude that the appellate panel believed it to be a due process violation.

United States v. Hobbs, Case No. 16-1956 (8th Circuit, December 14, 2016)

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SUPREME COURT GRANTS CERT TO BRADY, INEFFECTIVE ASSISTANCE CASES

It’s been a week for criminal law at the Supreme Court, a forum that typically devotes no more than about 20 percent of its time to criminal law questions.

On Monday, the Court granted certiorari – that is, agreed to hear – to Honeycutt v. United States, a case that asks whether 21 U.S.C. 853(a)(1) requires that forfeitures – which are different than restitution – be assessed jointly and severally among all of the coconspirators in a drug scheme. liability among co-conspirators for forfeiture of the reasonably foreseeable proceeds of a drug conspiracy. In the case, Terry Honeycutt worked as a salaried employee at a hardware store owned by his brother, Tony. The two brothers were charged with drug crimes for the store’s sale of an iodine-based water disinfectant which can also be used to make methamphetamines. Tony forfeited $200,000 to account for the proceeds of the illegal sales. Terry went to trial and was convicted, the government argued that he should have to forfeit the rest of the proceeds, approximately $70,000.

Terry said he shouldn’t have to forfeit the remaining proceeds because he was just a worker bee, and never received them. The district court agreed, but the U.S. Court of Appeals for the 6th Circuit reversed, holding that Terry could be held independently liable for the meth precursor sales proceeds even if he never got any of the money.

Observers are hoping that the case may help put the brakes on what some see as a runaway and muddled forfeiture culture.

Yesterday, the Supreme Court added two more criminal issues to the docket, although one of the two issues has two separate cases consolidated for review. Both cases address prosecutors’ Brady v. Maryland obligations to turn over to the defense any material evidence that tends to be exculpatory for the defendant.

In Turner v. United States, several defendants were convicted in a murder years ago based in large part on eyewitness testimony. However, the prosecution did not turn over evidence pointing to several alternative suspects, including one who committed almost an identical murder after the trial ended. Lower courts turned down their post-conviction claims. The case focuses on whether the prosecution discharged its Brady obligations, and – in the consolidated case, Overton v. United States – whether the fact that the other suspect committed an identical crime after the trial that suddenly made the prosecutor’s failure to disclose information about him very material – had any bearing on whether a Brady violation occurred. In other words, is Brady materiality measured at the time of trial, or is hindsight required as well?

Curiously, the Supreme Court granted certiorari on the very general question of whether the conviction should be set aside for noncompliance with Brady. A decision in these cases could be sweeping, or it could be so case-specific as to provide little general guidance on Brady.

Finally, in Lee v. United States, the justices return to a topic familiar to Padilla v. Kentucky fans: the case of a non-citizen who gets into trouble with the law and then receives poor legal advice that jeopardizes his or her right to stay in the United States. Jae Lee is a South Korean immigrant who moved to the U.S. 34 years ago and became a successful restauranteur. But in 2009, he was charged with possession of MDMA (known as “ecstasy”) with intent to distribute. The Feds had Lee pretty much dead to rights, so his lawyer advised him to plead guilty and get a shorter sentence for acceptance of responsibility under USSG Sec. 3E1.1. The lawyer assured Lee the conviction wouldn’t hurt his resident status in the U.S., but of course it did, resulting Lee’s permanent and mandatory deportation.

Lee filed a 2255 motion, seeking to vacate his conviction on the grounds he had been denied his 6th Amendment right to effective assistance from counsel. The lower courts ruled that Lee could not that he was prejudiced by his lawyer’s bad advice, because he would have been convicted and deported anyway. Time was, the only issue on bad advice over a guilty plea was whether the defendant would have been likely to go to trial but for the bad advice, a standard set by Hill v. Lockhart in 1985. Padilla put some gloss on that by holding that it was the defendant’s job to “convince the court that a decision to reject the plea bargain would have been rational under the circumstances.”

Now, the Supreme Court will consider whether bad advice on a guilty plea may be harmless, even if the defendant would have chosen to go to trial anyway, because if he had decided on a trial, he would have lost.

The decision could have substantial implications for thousands of 2255 motions, well beyond the confines of immigration consequences.

The cases on which review were granted will likely be argued in late winter or early spring.

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SANDBAGGED

About 10 years ago, Jakeffe Holt was convicted of being a felon-in-possession of a firearm under 18 U.S.C. 922(g)(1). That crime carries a maximum sentence of 10 years, unless the defendant is deemed an armed career criminal under 18 U.S.C. 924(e), which applies to people with three prior violent felonies or serious drug offenses. Then, the punishment is 15 years to life.

Jakeffe got a 200-month sentence. But after Johnson v. United States held in 2015 that the residual clause in Sec. 924(e)(2)(B)(ii) was unconstitutionally vague. Jakeffe filed a collateral attack on his sentence under 28 U.S.C. 2255. The district court had counted a burglary conviction among the three predicate acts. Jakeffe argued that this was a mistake, but the district court disagreed, and upheld his sentence.

While Jakeffe’s appeal was pending, the 7th Circuit ruled that the version of the Illinois burglary statute under which he had been convicted was not a “violent felony” because it does not satisfy the
definition of “burglary” used in Mathis v. United States. All of a sudden, Jakeffe was clearly not an armed career criminal, and he had served more time that the maximum to which he could have been sentenced.

Easy, right? Just send that man home. But, no, the procedure is anything but easy. The 7th Circuit ruled yesterday that because Jakeffe had already filed his one 2255 motion, he’s out of luck. Under the law, a second 2255 is allowed only if the court of appeals certifies that it rests on newly discovered evidence (which Jakeffe’s did not) or “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” 28 U.S.C. 2255(h)(2).

While Johnson was a new rule of constitutional law made retroactive, Jakeffe’s new argument rests on Mathis, which is not. Instead, Mathis just interprets the statutory word “burglary” and “does not depend on or announce any novel principle of constitutional law.” By knocking out the residual clause, Johnson opened the door to arguments based on the limits of the elements clause, the Court said, but it did not declare it unconstitutional.

The problem, the Court said, was that Jakeffe was treating the ACCA as having only two clauses – elements and residual – when it really had three. That third includes as violent crimes “burglary, arson, or extortion [or] involves use of explosives…”

Zakeffe’s burglary conviction was classified as a violent felony under the burglary clause. Nothing in Johnson affects the proper treatment of burglary convictions. So Zakeffe’s second collateral attack cannot rest on Johnson.

If the court of appeals denies a request to file a second or successive application, no one may seek reconsideration or file for certiorari in the Supreme Court. Thus, the Circuit said, it “cannot treat the prosecutor’s supplemental brief as implying a request that we rehear, and rescind, the certificate authorizing a second collateral attack.”

Here, the district court found that Jakeffe’s 2255 relied on the meaning of “burglary” rather than the meaning of the Constitution, and she denied the 2255. The judge acted before the Supreme Court released Mathis, so she did not appreciate that Jakeffe’s burglary conviction had been misclassified when he was sentenced. She did, however, understand that his argument was statutory rather than resting on Johnson or any other retroactive rule of constitutional law.

So Jakeffe, who is undoubtedly innocent of an ACCA enhanced sentence, must do an extra 80 months regardless, because procedure demands it. The 7th did note that whether Jakeffe “might be entitled to relief under 28 U.S.C. 2241, should he pursue that route in the district where he is confined… is a question we need not consider.”

Holt v. United States, Case No. 16-1793 (7th Cir., Dec. 13, 2016)

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INTRODUCING “MISS CARRIAGE”

The numbers are compelling and well known. Last year, 97.1 percent of all federal criminal cases were resolved by guilty pleas. And those guilty pleas were overwhelmingly entered only after the government and defendant signed a written plea agreement.

There is nothing inherently wrong with resolving cases through guilty pleas — it reduces the government’s burden to prepare and conduct a trial, reduces the cost of defense for the defendant and court (because most defendants have court-appointed attorneys), lessens the imposition on witnesses, and saves courtroom resources. But in the federal plea bargaining system, prosecutors often strong-arm defendants by offering them dramatically shorter prison terms if they plead guilty, and threatening them – if they go to trial ¬– with sentences that retired Judge John Gleeson of the Eastern District of New York once described as “so excessively severe, they take your breath away.”

Plea bargaining means higher sentences for defendants who go to trial. In 2012, Human Rights Watch reported, the average sentence of federal drug offenders convicted after trial was three times higher (16 years) than that received after a guilty plea (5 years and 4 months).

Most plea agreements contain appeal waivers, promises by the defendant not to appeal except in limited circumstances. It’s one thing to get the defendant to waive the right to appeal decisions and conduct that have already occurred: at least in that case, the defendant can fairly be charged with knowing what has already gone on. But waivers also waive the right to challenge the sentence as long as it falls within the broad range set out in statute. You had a great argument against a 2-level enhancement, but your lawyer left her notes at home? Tough luck to you, fella.

There is a safety valve. Generally, despite the fact the defendant signed an appeal waiver, an appellate court will consider a sentencing issue on appeal to prevent a “miscarriage of justice.” And what is that? It’s sort of like Justice Potter Stewart’s famous concurrence in Jacobellis v. United States : “I know it when I see it…”

There’s some irony to recalling Justice Stewart’s pithy non-definition – which dealt with the definition of pornography – because that’s what today’s case is about. Bill Berríos pled to a child porn production count pursuant to a signed plea agreement, in which (among other things) he waived his right to appeal if his sentence was within the statutory range. When his sentence did not meet his liking, Bill appealed in spite of the waiver.

Yesterday, the 1st Circuit remanded Bill’s sentence on only one of four ground he claimed. Although it disposed of three arguments so summarily that it didn’t even to describe what Bill claimed, the Court stalled on a special conditions of supervised release that required Bill to undergo a special test that measured response of certain of his private parts to his seeing certain images (we’ll refer to the test by its acronym, PPG).

The district court imposed the PPG requirement on Bill without any explanation. On appeal, the government conceded that PPG – a controversial technique – lacked any utility. Noting that a district court must “provide a substantial justification before making submission to PPG testing part of a condition of supervised release” – and being swayed by the government’s refusal to defend the condition – the 1st Circuit decided that whatever “a miscarriage of justice” was, this clearly fell to far side of that line. The Court said “potentially subjecting the defendant to PPG testing when the government expressly disavows the utility of this particular procedure about which we have expressed reservations, especially when the record lacks any explanation of the applicability of PPG testing to this defendant, constitutes a miscarriage of justice as well as plain error.”

United States v. Berríos-Cruz, Case No.14-1058 (1st Cir., Dec. 12, 2016)

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SENTENCING COMMISSION PROPOSES FIRST-OFFENDER BREAKS, PASSES ON CAREER OFFENDER ENHANCEMENT

For those who hoped the Sentencing Commission would propose to eliminate drug trafficking as offenses that support application of “career offender” status, last Friday’s meeting was a disappointment.

A December USSC meeting to consider proposals for the next year’s rounds of amendments is highly irregular, and the tin-hat people were buzzing: the Commission had an earth-shaking proposal, everyone’s running scared because of President Trump and a completely Republican congress, the earth is about to end… In the end, it turned out that the early meeting was most likely held because the 6-year tenure of USSC Chairwoman Patti B. Saris (whose day job is Chief Judge of the U.S. District Court for the District of Massachusetts) ends on December 31.

Last summer, the Commission said its policy priorities for the coming year would include a proposal to study whether to drug trafficking convictions as predicates for the Guidelines Chapter 4 “career offender” enhancement. Last summer, the Commission delivered a report to Congress that found that defendants with multiple drug convictions were much different, and considerably less tough to manage, than were those with two or more crimes of violence as predicates for career offender status. The Report suggested that drug offense perhaps should not count against defendants for career offender status.

Last week’s meeting, the Commission mentioned not a word about the career offender status, suggesting that nothing will happen to change “career offender” in 2017 unless the Supreme Court does it in Beckles v. United States.

Instead of addressing “career offender,” the Commission voted to put out for public comment proposals to reduce sentencing ranges for first-time offenders, defined as those without any criminal history points whatsoever. The Commission wants to encourage federal courts to impose more alternative sentences that do not require incarceration.

Also, the Commission proposed changing how criminal history scores are calculated to eliminate the counting of juvenile convictions, and to propose a downward departure where a defendant was convicted as an adult for an offense committed before 18 years old. Additionally, the Commission proposed that parole and supervised release revocation sentences not be counted as extending prior periods of conviction, an important issue for a lot of defendants who have very old convictions that – because of a late revocation – suddenly fall within the 15-year look-back period.

The Commission proposed a two-year study on MDMA (“ecstasy”) and synthetic drugs, and said it would update its study – now before Congress – to reduce mandatory minimum sentences.

There was no discussion whatsoever of retroactivity for existing Guidelines or for the proposals set out for public comment. This is not usual: in the rare cases when a Guidelines change becomes retroactive, the proposal to do so comes only after the Guideline change has become effective.

The composition of the Commission is about to change dramatically. Last Friday’s meeting was the final one for three of the seven members, Chief Judge Saris, Judge Charles R. Breyer and Dabney L. Friedrich. By statute, commissioners are appointed to 6-year terms by the President and confirmed by the Senate. At least three must be federal judges and no more than four may belong to the same political party. Other Commissioners include Circuit Judge William H. Pryor, Jr., Commissioner Rachel E. Barkow, Commissioner J. Patricia Wilson Smoot (ex-officio, U.S. Parole Commission), and Commissioner Michelle Morales (ex-officio, U.S. Department of Justice). The Commission must have at least four voting Commissioners for a quorum, and thus will be unable to act until new members are appointed and confirmed.

U.S. Sentencing Commission, Proposed Amendments to the Sentencing Guidelines (Preliminary) (Dec. 9, 2016)

We’re still doing a weekly newsletter… we’re just posting pieces of it every day.  The news is fresher this way…

A ROUGH JOB – BUT JUSTICE WAS DONE

Inmates who have to carry on their post-conviction legal battles without assistance of counsel – and that would include just about all of them – sooner or later learn the hard way that neither court clerks nor the US Attorney’s Office can be trusted to send them filings or court orders in a timely manner.

When we first began working with inmates, we found the complaint of non-service hard to believe. Well, not all of us – one of our number once practiced law in an Ohio city where it was ritual to go to the clerk’s office every Friday to check the dockets of cases in which he was involved, just to see what the other side had filed without serving him. But for those of us just out of law school, the idea of lawyers sand-bagging lawyers – or clerks failing to mail court orders of sheer negligence – did not comport with our rose-colored view of the practice of law.

But, alas, we’re older and more cynical, and not a month passes that we don’t find that some USAO or some clerk has failed to mail an inmate an opposition pleading or court order. Today’s case is a cautionary tale about the need to use an electronic version of our colleague’s Fridays-at-the-Clerks approach, as well as how a court of appeals – sympathetic to the limitations on pro se litigation – can try to make it right.

Larry Gooch (known on the street as “Goo”) is doing time for a litany of crimes, including four felony murders. In a motion under 28 U.S.C. § 2255, Goo complained his lawyer was ineffective at trial. The district court turned him down.

A few weeks later, Goo, acting pro se, submitted a filing to the District Court, entitled “Request for Extension of Time,” filed a pleading asking for an “extension of time of 60-days to file a Certificate of Appealability.” His request said that, “[b]ecause Mr. Gooch is unlearned in the law, he will require more time to properly research and prepare his Certificate of Appealability.” After receiving Goo’s filing, the district court, which found his ineffectiveness question to be a close one, granted Goo a certificate of appealability (COA) under 28 USC 2253(c) to test the argument on appeal.

The district judge construed Goo’s “Request for Extension of Time” as a motion for extension of time to file a notice of appeal under Federal Rule of Appellate Procedure (FRAP) 4(a)(5)(A)(i), and granted “an extension to file within sixty days of this Certificate.”

This is where Mr. Murphy made his appearance. In the midst of what the district court later called “downsizing, job sharing and sequestration,” the clerk’s office never sent Goo a copy of the apparently failed to mail Gooch a copy of the COA and order. Ten months later, Goo – puzzled that he had heard nothing – sent the court a letter inquiring about the status of his earlier request. The district court construed this letter as a motion for extension of time to file a notice of appeal under FRAP 4(a)(5) or, alternatively, as a motion to reopen the time to appeal under FRAP 4(a)(6), but denied it either way.

Goo then filed a motion with the U.S. Court of Appeals for the D.C. Circuit, asking leave to appeal. On Wednesday, the Court granted Goo’s motion.

The Court noted that FRAP 3 requires the filing of a notice of appeal is necessary before a court of appeals has jurisdiction to hear the appeal. There was no question that the filings 10 months after the fact were not timely under FRAP 4. In fact, the Circuit said, “Gooch made only one filing in the 60 days following the District Court’s denial of his § 2255 motion: his ‘Request for Extension of Time’.”

The good news, the Court said, is that while Goo’s timely filed “Request” “was not styled as a notice of appeal, it nonetheless may satisfy Rule 3 if it is the ‘functional equivalent’ of what the rule requires.” In order to do so, the document had to contain all of what FRAP 3 required be in a notice: (1) the party who was appealing, (2) the judgment or order being appealed, and (3) the court to which the appeal was taken.

The Circuit parsed Goo’s “Request for Extension of Time” until it found what it wanted to find. First, because the “Request for Extension of Time” identified Goo in the caption, the Court said, it identified the party taking the appeal. Second, Goo’s filing designated the judgment or order being appealed, because it explicitly referenced the district court’s denial of his 2255 motion. The Court’s bob-and-weave was especially impressive on the third requirement, holding that while “the ‘Request for Extension of Time’ does not ‘name the court to which the appeal is taken,”’ – which is the third and final requirement – failures to meet this requirement are excused where there is only one court to which the appeal can be taken, which is the case here.”

Goo never explicitly said he intended to appeal – the final requirement – but the Court of Appeals breezily excused that, too. The Court said

Although the document refers to Gooch preparing and filing “his Certificate of Appealability,” it appears to mean an application for a certificate of appealability because the certificate itself is prepared and issued by the court. See RULES GOVERNING SECTION 2255 PROCEEDINGS FOR THE UNITED STATES DISTRICT COURTS 11(a) (“The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” (emphasis added)). In his filing, Gooch notes that the District Court “did not hold that it would not issue a Certificate of Appealability,” and requests additional time “within which to file his Certificate of Appealability” because “he will require more time to properly research and prepare his Certificate of Appealability.”

These statements clearly evince Gooch’s intent to obtain a certificate of appealability. As the only purpose of such a certificate is to pursue an appeal, Gooch’s intent to pursue an appeal can reasonably be inferred from his intent to file an application for the certificate.

It is correct, as inmates love to cite in their pleadings (as if the judges don’t already know it), that the Supreme Court requires courts to “liberally construe” documents filed pro se. Here, the D.C. Circuit found that “an intent to appeal can be reasonably inferred from the request” for extension of time, and it was loathe to dismiss the 2255 on procedural grounds rather than on the merits.

The Court concluded that “Gooch’s ‘Request for Extension of Time,’ which was filed within the time period specified by Rule 4, constitutes the functional equivalent of a notice of appeal… [and] we have jurisdiction under 28 USC Sec. 2253(a) to consider the merits of his appeal.

To be sure, the Court of Appeals virtually held that a scrawl on the back of a cocktail napkin could serve as a functional stand-in for a FRAP 3 notice of appeal. But few can complain that this time, in its contortions, the D.C. Circuit did not do justice here.

United States v. Gooch, Case No. 15-3030 (D.C. Cir., Dec. 6, 2016)