Supremes Hand Down a Federal Criminal Pair – Update for June 19, 2018

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HIGH COURT DECIDES A COUPLE OF PROCEDURAL ISSUES, DRY BUT IMPORTANT

vacation180618I had no sooner gotten done writing in yesterday morning’s newsletter to federal inmates that the Supreme Court still had a plateful of decisions to hand down – including five criminal cases – than the Court reduced its remaining opinion load by 25 percent, dropping five decisions at Monday’s session, including two federal criminal procedure opinions.

For those keeping score, SCOTUS has 14 opinions yet to issue, and has scheduled an extra opinion day for Thursday this week in order to push decisions out the door before vacation begins on June 30th.

SUPREME COURT SAYS GUIDELINES ERROR ALMOST ALWAYS WARRANTS RELIEF

Every year, a lot of sentencing guidelines mistakes appear in presentence reports but never get caught by defense counsel or the court.

errorB160425On appeal, errors not raised in the district court may only be addressed by Federal Rule of Criminal Procedure 52(b), and then only as long as (1) the error was not “intentionally relinquished or abandoned,” (2) the error is plain, and (3) the error “affected the defendant’s substantial rights.” If those conditions are met, “the court of appeals should exercise its discretion to correct the forfeited error if the error “seriously affects the fairness, integrity or public reputation of judicial proceedings.” These standards were adopted by the Supreme Court in United States v. Olano. Thus, an appellant wanting to raise a mistake at sentencing to which no one objected has to ring Olano’s first three bells. If he or she does that, the Court of Appeals then muses about whether the error seriously affected the fairness, integrity or public reputation of judicial proceedings – you might say, whether it makes the courts look bad – and, if it does, the Court of Appeals will do something about it. Maybe.

If you ever wanted to see the legal equivalent of a stacked deck, Olano’s “plain error” test is it.

The issue in the first of yesterday’s decisions, Rosales-Mireles v. United States, was whether a Guidelines error that satisfies Olano’s first three conditions warrants relief under the fourth prong. The 5th Circuit, not content with loaded dice Olano had already given it, decided that unless the complained-of error “shocked the conscience,” it did not meet Olano’s fourth prong. This is tough for people like me, because the older I get, the harder it is for my conscience to be shocked. And unsurprisingly, the ages of the judges on the courts of appeal skew much more toward Metamucil than they do Monster energy drinks. So (and this will come as no surprise), the 5th’s conscience is not easily shocked.

metamucil180619Florencio Rosales-Mireles pleaded guilty to illegal reentry into the United States. In calculating the Guidelines range, the Probation Office’s presentence report mistakenly counted a state misdemeanor conviction twice. As a result, the report yielded a Guidelines range of 77 to 96 months, when the correctly calculated range would have been 70 to 87 months. No one caught the mistake at sentencing.

On appeal, Flo challenged the incorrect Guidelines range for the first time. The 5th Circuit found that the Guidelines error was plain and that it affected Flo’s substantial rights because there was a “reasonable probability that he would have been subject to a different sentence but for the error.” The Circuit nevertheless declined to remand the case for resentencing, concluding that Flo had not established that the error would seriously affect the fairness, integrity, or public reputation of judicial proceedings because neither the error nor the resulting sentence “would shock the conscience.”

shocked180619As an aside, I would observe that someone whose conscience is not shocked that a judicial blunder would deprive a human of liberty for as much as 26 months has never been locked up. But no matter. The defendants serve the sentences, not the judges.

But to its credit, the Supreme Court disagreed with the 5th Circuit. Yesterday’s decision held that a miscalculation of a Guidelines sentencing range that has been determined to be plain and to affect a defendant’s substantial rights requires a court of appeals to exercise its discretion under Rule 52(b) to vacate the defendant’s sentence “in the ordinary case.”

Although Rule 52(b) is permissive, not mandatory, the Court said, it is well established that courts “should” correct a forfeited plain error affecting substantial rights “if the error ‘seriously affects the fairness, integrity or public reputation of judicial proceedings.” The 5th Circuit’s shock-the-conscience standard too narrowly confines the extent of the court of appeals’ discretion. It is not reflected in Rule 52(b), nor in how the plain-error doctrine has been applied by the Supreme Court, which has before reversed judgments for plain error based on inadvertent or unintentional errors by the court or the parties. The errors are not required to amount to a “powerful indictment” of the system.

An error resulting in a higher range than the Guidelines provide usually establishes a reasonable probability that a defendant will serve a prison sentence greater than “necessary” to fulfill the purposes of incarceration. That risk of unnecessary deprivation of liberty particularly undermines the fairness, integrity, or public reputation of judicial proceedings in the context of a plain Guidelines error, the Court said, because Guidelines miscalculations ultimately result from judicial error, as the district court is charged in the first instance with ensuring the Guidelines range it considers is correct.

bell180619Ringing the first three Olano bells will not make 52(b) relief inevitable, however, the Court ruled, because any exercise of discretion at the fourth prong of Olano inherently requires “a case-specific and fact-intensive” inquiry. Countervailing factors may satisfy the court of appeals that the fairness, integrity, and public reputation of the proceedings will be preserved absent correction. But for now, an appellate judge’s conscience need not be shocked in order for him to do the right thing.

Rosales-Mireles v. United States, Case No. 16-9463 (June 18, 2018)
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COURT LEAVES QUESTION OF ADEQUACY OF DISTRICT COURT EXPLANATION FOR SENTENCE TO ANOTHER DAY

Adaucto Chavez-Meza pled guilty to possessing methamphetamine with intent to distribute. The judge reviewed the Guidelines, determined the range to be 135 to 168 months, and imposed a sentence at the bottom of the range. The Sentencing Commission later lowered the relevant range to 108 to 135 months, and Adaucto sought a sentence reduction under 18 USC 3582(c)(2) to the bottom of the new range. The judge reduced his sentence to 114 months instead. The order was entered on a form certifying that the judge had “considered” Adaucto’s “motion” and had “taken into account” the 18 USC 3553(a) factors and the relevant Guidelines policy statement.

On appeal, Adaucto argued the sentencing judge did not adequately explain why he rejected petitioner’s request for a 108-month sentence. The 10th Circuit Court of Appeals disagreed.

can180619A lot of us thought the Supreme Court would use this case to explain the degree of detail a judge had to provide on sentences, even in-Guidelines sentences. But yesterday the Court punted, holding simply that because the record as a whole demonstrated the judge had a reasoned basis for his decision, the judge’s explanation for Adaucto’s sentence reduction was adequate.

The government argued Adaucto was not entitled to an explanation at all because the statute governing sentence-modification motions does not expressly require a sentencing judge to state his reasons for imposing a particular sentence at all. While implying it might have sympathy to that view, the Court said, “it is unnecessary to go as far as the government urges, however, because, even assuming the District Court had a duty to explain its reasons when modifying petitioner’s sentence, what the court did here was sufficient.”

Chavez-Meza v. United States, Case No. 17–5639 (June 18, 2018)

– Thomas L. Root

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4th Circuit Denies Government Rehearing, May Force SCOTUS Review on 2241 – Update for June 18, 2018

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GOVERNMENT DENIED REHEARING ON 4TH CIRCUIT WHEELER CASE

We reported last April that in United States v. Wheeler, the 4th Circuit had reversed years of enforcing a policy of denying collateral review to people who improperly received higher sentences due to prior convictions, in a decision that defined when the 28 USC 2255(e) “savings clause” would let someone file a 28 USC 2241 habeas corpus action.

savings180618Gerald Wheeler had gotten a higher sentence because of a prior North Carolina drug felony that years later was ruled in United States v. Simmons to not be a felony. But Simmons’ retroactivity came too late for Jerry, whose 2255 motion had already been denied. He filed a 2241 motion, which was denied by the district court because he could only show he was actually innocent of the sentence, not of the underlying conviction.

Whether the 2255(e) savings clause applies to sentences as well as to convictions was left hanging in the 2016 United States v. Surratt case, which was dismissed on rehearing in the 4th Circuit when Mr. Surratt got a commutation from President Obama. After Mr. Wheeler won, the government requested rehearing en banc. Such requests from the government are rare and are usually granted by appeals courts. But last week, the 4th Circuit denied rehearing, making Wheeler binding precedent.

The 10th and 11th Circuits have held that a 2241 is never available to correct a change in the law. But seven other circuits permit a 2241 under the “savings clause” where a change in the law makes a defendant actually innocent of the underlying offense. Now, three circuits – the 4th, 6th and 7th – even permit a sentencing-based claim to proceed on 2241 via the saving clause.

wheelin180618Two 4th Circuit judges filed concurrences on the rehearing denial. One said that to deny Wheeler the right to test the legality of his sentence would be a miscarriage of justice. The other blasted the decision as defeat the Antiterrorism and Effective Death Penalty Act by letting inmates endlessly relitigate, saying “the issues in this case are of significant national importance and are best considered by the Supreme Court at the earliest possible date in order to resolve an existing circuit split that the panel decision broadens even farther.  Because of the potential that the case may become moot if Wheeler is released from incarceration in October 2019, as projected, I have not requested a poll of the Court upon the petition for rehearing en banc in order to expedite the path for the Government to petition for certiorari to the Supreme Court.”

Supreme Court review of Wheeler might delay some inmates who can use the decision right away, but a review of the circuit split on proper use of the “savings clause” is long overdue. Professor Doug Berman of Ohio State University law school predicted in his sentencing blog last week that “this issue, if not this case, will be taken up by SCOTUS relatively soon. But I have said this and been wrong before, so maybe I will be blogging in six months saying, ‘Hey, I was wrong’. But I don’t know that I’ll ever admit that, but I’ll find some kind of an excuse for why my SCOTUS prediction was off.”

Order, United States v. Wheeler (4th Cir., June 11, 2018)

Sentencing Law and Policy, Spotlighting lower-court divides over AEDPA’s savings clause and consideration of sentencing errors (June 12, 2018)

– Thomas L. Root

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More Steps Taken on FIRST STEP? – Update for June 13, 2018

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THE WIND MAY BE SHIFTING

imageWe have previously reported that the prison reform bill named FIRST STEP Act, H.R. 5682, faces a tough battle in the Senate, starting with the unwillingness of Senate Majority Leader Mitch McConnell to bring it to a vote, and Senate Judiciary Committee Chairman Charles Grassley (R-Iowa) pledging that no FIRST STEP Act will pass without the Sentencing Reform and Corrections Act (S.1917) being written into FIRST STEP’s provisions.

But it was a wild week in the nation’s capital last week, and as a result, the goal may be closer than ever. In one of Washington’s most interesting plot twists, historic criminal justice reform legislation now finds itself atop Trump’s policy agenda, and one floor vote away from his signature.

A detailed story in Foreign Affairs last week suggested that a deal that includes some first-step changes to harsh sentencing laws is now likelier in the wake of the Alice Johnson commutation of the life sentence of Alice Marie Johnson. Even Sessions has said he could support reforms to “stacking” provisions in 18 USC 924(c), which results in first-timers getting three or more stacked 924(c) enhancements for a single course of conduct, with sentences of 62 years or more for what should be a 12-year bit.

While the SRCA proposal to reform what are generally (and misleadingly) called “851” enhancements (provisions in 21 USC 841(b) that double mandatory minimum sentences for prior state felony drug convictions), might not make it, a compromise could include a broader safety valve, which would give judges more discretion to depart from mandatory minimums when circumstances warrant.

compromise180614Senators Mike Lee (R-Utah) and Rand Paul (R-Kentucky), both longtime SRCA supporters, will be key brokers in any deal. Lee could help bring Democrats such as SRCA supporters Richard Durbin (D-Illinois) and Cory Booker (D-N.J.) to the table, and Paul shares a backyard with McConnell, who will determine if the bill even gets a vote.

Also heartening was McConnell’s unpopular announcement last week that the Senate will not take the month of August off, as it usually does, but instead stay in town to complete a lot of unfinished business.

cotton171226All is not roses, however. Senator Tom Cotton (R-Arkansas), one of the few Americans who believes the country has an “underincarceration problem,” has mounted a guerrilla campaign to undermine FIRST STEP’s support on the right. For example, he is reportedly pushing law-enforcement groups to oppose the bill. His efforts have borne fruit recently, as the Federal Law Enforcement Officers Association withdrew its endorsement of the bill after being pressured by Cotton’s office. Also, last week, the National Association of Assistant U.S. Attorneys slammed FIRST STEP, but that group hardly needed Cotton’s urging to do so.

Foreign Affairs, The Art of a Deal on Criminal Justice Reform (June 8, 2018)

Townhall, The FIRST STEP Prison Reform Bill Should Be a No-Brainer (June 8, 2018)

National Review, A Prison-Reform Bill Passed the House 360–59. It’ll Probably Die in the Senate (June 6, 2018)

– Thomas L. Root

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Mandatory Guideline Career Offenders Get an ACCA Break – Update for June 12, 2018

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7TH CIRCUIT EXTENDS JOHNSON TO PRE-BOOKER CAREER OFFENDERS

BettyWhiteACCA180503When Johnson v. United States declared the residual clause of the Armed Career Criminal Act’s definition of “crime of violence” to be unconstitutionally vague, prisoners who had ACCA convictions, 18 USC 924(c) convictions and Guidelines “career offender” sentences based on crimes of violence started a land rush to district courts to get resentenced.

But their enthusiasm cooled off when the Supreme Court, in Beckles v. United States, ruled that the ruling did not apply to the several places in the Guidelines that used a “crime of violence” residual clause that read like the one in the ACCA. Beckles held that the vagueness concerns that made the ACCA residual clause unconstitutional were not present where the Sentencing Guidelines were concerned, because the Guidelines were merely advisory: that is, a judge did not have to follow them.

However, some inmates were still serving sentences handed down before the Supreme Court in 2005 declared the Guidelines to be merely advisory in United States v. Booker. Beckles simply did not address their situation.

Last week, the 7th Circuit did so, holding that “under Johnson, the guidelines residual clause is unconstitutionally vague insofar as it determined mandatory sentencing ranges for pre-Booker defendants.”

advisoryguidelines180613In Beckles, the Circuit said, the Supreme Court “took care… to specify that it was addressing only the post-Booker, advisory version of the guidelines.” In fact, the 7th said, “Beckles’ logic for declining to apply the vagueness doctrine rests entirely on the advisory quality of the current guidelines… Beckles reaffirmed that the void-for-vagueness doctrine applies to ‘laws that fix the permissible sentences for criminal offenses.’ As Booker described, the mandatory guidelines did just that. They fixed sentencing ranges from a constitutional perspective… The residual clause of the mandatory guidelines did not merely guide judges’ discretion; rather, it mandated a specific sentencing range and permitted deviation only on narrow, statutorily fixed bases.”

The 7th Circuit concluded that the career offender provisions of “the mandatory guidelines are thus subject to attack on vagueness grounds.”

Cross v. United States, Case No. 17-2282 (7th Cir., June 7, 2018)

– Thomas L. Root

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Pardon me, Mr. President: Enthusiasm Waxes After Johnson Commutation – Update for June 11, 2018

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TRUMP SAYS HE’S CONSIDERING CLEMENCY FROM LIST OF 3,000 PEOPLE

pardon160321In the wake of widespread approval for President Trump’s commutation last Thursday of federal inmate Alice Johnson’s drug conspiracy life sentence, the President said that he was considering other pardons drawn from a list of 3,000 names.

The president was praised for granting clemency to the 63-year old grandmother, who had already served 21 years. Her case was championed by reality TV celebrity Kim Kardashian West, who met with Mr. Trump a week ago to urge grant of commutation to the Memphis woman.

Trump did not say whether he was only considering pardons or was looking at commutations as well, but he seems to be willing to use his clemency power to either pardon outright or just to commute sentences. Without explaining the origin of the list of 3,000, the President said, “Many of those names really have been treated unfairly.”

Trump also asked NFL players to suggest people worthy of clemency, an apparent attempt to end his battle with the NFL over players kneeling during the National Anthem to protest social injustice. “If the players, if the athletes have friends of theirs or people they know about that have been unfairly treated by the system, let me know,” Trump said.

clemencyjack161229There is some irony in Trump reviewing the cases of 3,000 federal inmates incarcerated for drug offenses, given his criticism of President Obama for doing the same thing, and Trump’s permitting Attorney General Jefferson Beauregard Sessions III to rescind Obama-era charging policies for nonviolent drug offenders.

The DOJ pardon office has a reputation for slow decision-making. Only 26% of the backlog of 11,200 pardon and commutation cases were filed since Trump became president. Trump has thus far denied 180 pardon and sentence-reduction applications, but that was before Trump realized that exercising his clemency power without DOJ input could be such fun.

FAMM president Kevin Ring and Ohio State University law professor Doug Berman expressed concern last week that there may be “enormous excitement among inmates,” given Trump’s clemency record to date.  Berman pointed out that Trump has only commuted two sentences so far, “and I have no reason to believe he has plans to start issuing dozens (let along hundreds) of additional commutations anytime soon.  Political realities have seemed to be influencing all of Prez Trump’s clemency work to date, and precious few federal prisoner have political forces in their favor.” While Berman hopes Trump will pleasantly surprise people, he says, “hopes ought to be tempered for now.”

trumpbird180611One commentator suggested that perhaps Trump can be talked into backing the Sentencing Reform and Corrections Act, (S.1917), which includes a retroactive rollback of some mandatory-minimum sentences, if he realizes how much it will annoy Sessions, whom he reportedly has wanted to fire. Sessions, of course, is the loudest and most vitriolic opponent of the SRCA. Just last Thursday, Trump announced his support for a Senate bill that would limit Sessions’ DOJ from bringing marijuana enforcement actions in states where it is legal, an announcement Buzzfeed described as a real “F— You” to Sessions

The New York Times, Trump Says He’s Considering a Pardon for Muhammad Ali (June 8, 2018)

The Hill, Trump says he is considering pardon for Muhammad Ali (June 8, 2018)

Business Insider, Trump’s commutation of a 63-year-old grandmother’s sentence is an example of where his disregard for institutions pays off (June 7, 2018)

The New York Times, Pardon System Needs Fixing, Advocates Say, but They Cringe at Trump’s Approach (June 1, 2018) 

– Thomas L. Root

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Filing Deadlines Apply to the Feds, Too – Update for June 7, 2018

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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.

toolate180607Last 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.

United States v. Kelb, Case No. 17-1333 (3rd Cir.  May 31, 2018)

– Thomas L. Root

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Only a Matter of Time: Supervised Releasees Are Set Up to Fail – Update for June 6, 2018

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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.”

probation180607Noting 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 one out 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.

The New Republic, America’s Shadow Criminal Justice System (May 30, 2018)

– Thomas L. Root
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A Double Shot: Supreme Court Giveth and Taketh Away – Update for June 5, 2018

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SUPREMES TACKLE FEDERAL SENTENCING ISSUES, THEN BAKE A CAKE

supremecake180605The 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.

Of interest to us were a pair of decisions, Hughes v. United States and Koons v. United States, with very different issues springing from a common core. We’ll start with Hughes:

CLEARING UP FREEMAN

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.

dividedcourt180605The 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.

sentence170511The 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.

The Court said its interpretation furthers the purposes of the Sentencing Reform Act, and confirms prior holdings in Molina-Martinez v. United States and Peugh v. United States that the Guidelines remain a basis for almost all federal sentences.

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.

WYSIWYG

The Court was unanimous and brief in Koons v. United States.

wysiwyg180605There 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.

nobeer180605Under 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. 

Hughes v. United States, Case No. 17-155 (Supreme Court, June 4, 2018)

Koons v. United States, Case No. 17-5716 (Supreme Court, June 4, 2018)

– Thomas L. Root

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Truth is Stranger than Fiction: Reality TV Star’s White House Visit May Jump-Start Sentence Reform – Update for June 4, 2018

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WILL THE KARDASHIANS SAVE SENTENCE REFORM?

kardash180604Talk 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.

grassley180604Instead, 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.

sessions180215The 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.

kardashian180604Interestingly, Trump – who tends to agree with the last person who spoke to him – tweeted that he and Kardashian had 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.

The Hill, Senate grapples with prison reform bill (May 30, 2018)

Washington Post, In prison reform, a little of something is better than a lot of nothing (May 28, 2018)

The Hill, Don’t kick the can down the road on prison reform — now is the time for change (June 1, 2018)

– Thomas L. Root

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SCOTUS Hems and Haws, Then Passes on Change to Refine Beckles – Update for June 1, 2018

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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. 

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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).

missedopp180531Last week, the Court denied review without comment on those cases, Allen v. United States, Gates v. United States, and James v. United States. All of these cases asked whether under the Supreme Court’s opinions in United States v. Booker, Johnson v. United States and Beckles v. United States – all of which depended heavily upon the distinction between advisory and mandatory sentencing schemes – the residual clause of the mandatory sentencing guidelines is unconstitutionally vague. Now that question will go unanswered for now.

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.”

Supreme Court, Order (May 21, 2018)

– Thomas L. Root

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