This week:

Supreme Court to decide Johnson retroactivity this term

Sentencing Commission Adopts Proposed “Crime Of Violence” Definition

EDNY Judge John Gleeson Resigns For Private Practice

Don’t Interrupt Me – 3rd Circuit Reverses Sentence for Allocution Cross-X

7th Circuit Vacates Sentence Because Of Vagueness Of Supervised Release Standard Conditions

As Congress Gets Back To Work, News Media Speculate On Fate Of Sentencing Reform And Corrections

SUPREME COURT TO DECIDE JOHNSON RETROACTIVITY THIS TERM

Taking on a case that may lead to the release of thousands of inmates, the Supreme Court last Friday afternoon agreed to consider making last June’s decision in Johnson v. United States retroactive. Retroactivity would let inmates whose Armed Career Criminal Act convictions are already final apply to the courts for resentencing.

The question of Johnson’s retroactivity has already resulted in substantial split among federal appeals courts … and is making for unusual bedfellows. The strangest is this: in a Supreme Court filing last week, the United States government officially took the position that Johnson should apply retroactively.

The case accepted for judicial review is Welch v. United States, a pro se petition for certiorari that an inmate defendant banged out on a typewriter at FCI Coleman last September.  Welch had argued in a Sec. 2255 motion that one of the predicate cases which got him a 15-year Armed Career Criminal Act case – a Florida conviction for “robbery by sudden snatching” (essentially purse-snatching) – was not a crime of violence after the ACCA’s “residual clause” was struck down in Johnson. The 11th Circuit turned him down, agreeing with the Government that Johnson could not be applied retroactively to § 2255 cases. But now, the Government has changed its tune.

Because DOJ supports making Johnson retroactive, the Supreme Court will appoint some non-government attorney to play devil’s advocate by arguing against retroactivity. Nevertheless, the fact that the Government and the inmate both agree on retroactivity suggests that the Supreme Court will treat the issue favorably.

A decision will be handed down by the end of June (which incidentally is the one-year deadline for filing for relief under Johnson.)

Welch v. United States, Case No. 15-6418 (certiorari granted Jan. 8, 2016)

SENTENCING COMMISSION ADOPTS PROPOSED “CRIME OF VIOLENCE” DEFINITION

The United States Sentencing Commission unanimously voted last Friday to adopt a new definition for “crime of violence” for career offenders and in other federal sentencing guidelines. The amendment – which eliminates the so-called “residual clause” – was strongly influenced by Johnson v. United States, a June 2015 decision in which the Supreme Court struck down as unconstitutionally vague the residual clause of the Armed Career Criminal Act. The “residual clause” provided that a “crime of violence” includes a felony offense that “otherwise involves conduct that presents a serious potential risk of physical injury to another.” That language was repeated nearly word for word in the Guidelines.

In its place, the amendment adopted by the Commission revised the list of specific enumerated offenses that qualify as a “crime of violence” and left in place the inclusion of crimes that have the use, attempted use, or threatened use of physical force as an element of the offense.

Douglas Berman, an Ohio State University law professor and author of a sentencing blog, said last Friday that the “crime of violence” guideline amendment “seemingly seeks to codify the best prior jurisprudence concerning what offenses should be enumerated as violent priors in the career offender guideline while eliminating the vague residual clause essentially blown up by the SCOTUS Johnson decision.” However, he predicts that the career offender guideline change will not be made retroactive “because doing so could prove almost administratively impossible.”

If the Commission proposes retroactivity, that will almost certainly occur after the proposed November 1, 2016, amendments are sent to Congress at the end of April.  Whether Prof. Berman is right probably depends on a lot of number crunching that has not been done yet, how many career offenders are in the system, and how many of those were “careered” out because of offenses no longer considered violent under Johnson.  The Sentencing Commission said that of over 75,000 sentencing cases reported to it in 2014, only 2,200 (or 3 percent) were career offenders.  Although the percentage of career offenders serving time would undoubtedly be higher than that, it may be premature to conclude that a sentence reduction system that processed tens of thousands of 2-level drug sentence reductions would be overburdened by career offender retroactivity.

EDNY JUDGE JOHN GLEESON RESIGNS FOR PRIVATE PRACTICE

Those who believe that the Federal criminal justice system needs reform were saddened to hear last week that United States District Judge John Gleeson is stepping down from the bench after more than 20 years to practice law.

In an email sent last week to fellow Eastern District of New York judges, Gleeson wrote, “as difficult as it is to leave the work I love and the colleagues I love, this is the right decision for me and my family.” The email said he would be leaving on March 9.  The Judge will probably make substantially more in private practice than his judicial salary.

The judge has been vocal in his rulings about matters like sentencing law and judicial discretion. Once a Federal prosecutor who won a conviction against Mafia boss John Gotti, the “Teflon Don,” Judge Gleeson has been a critic from the bench of prosecutorial abuses. Over his term on the bench, he has blasted Government use of recidivism-based drug sentence enhancements to coerce guilty pleas and to punish those who refuse to plead guilty, its routine use of drug offense mandatory minimums intended for leaders and managers of drug trafficking operations against low-level drug traffickers, and the Justice Department’s criticism of judges who sentence below the Guidelines ranges in fraud cases.

In United States v. Holloway (an unusual case), Judge Gleeson persuaded the U.S. Attorney in 2014 to agree to a remarkable order reducing a defendant’s Draconian 57-year sentence for bank robbery to the 20 years he had already served. In the order granting that sentence reduction, Judge Gleeson said, “It is easy to be a tough prosecutor. Prosecutors are almost never criticized for being aggressive, or for fighting hard to obtain the maximum sentence, or for saying ‘there’s nothing we can do’ about an excessive sentence after all avenues of judicial relief have been exhausted. Doing justice can be much harder.”

DON’T INTERRUPT ME – 3RD CIRCUIT REVERSES SENTENCE FOR ALLOCUTION CROSS-X

Jason Moreno worked a mortgage-fraud scheme as an appraiser who supplied inflated house appraisals in exchange for money. His pumped-up valuations let buyers borrow up to three times what the houses were really worth, ultimately burning banks for as much as $9 million. He was also more directly involved – as broker, buyer, or seller – in other fraudulent transactions. At trial, Moreno was found guilty of five counts of wire fraud and two counts of conspiracy to commit wire fraud and sentenced to 96 months.

The law is clear that at sentencing, every defendant is entitled to “allocution,” the right to tell the court anything that should make it cut the convicted a break on sentencing. During Moreno’s sentencing allocution, the prosecutor – without the court’s permission and without objection by Moreno’s lawyer – vigorously cross-examined Moreno, getting him to admit that the fraud of which he was convicted was only the “tip of the iceberg.” Because his lawyer did not objection, Moreno had to argue on appeal that this was plain error under F.R.Crim.P. 52(b).

The 3rd Circuit reversed the sentence. Holding that “while the right of allocution is not constitutional, nonetheless it is ancient in origin, and it is the type of important safeguard that helps assure the fairness, and hence legitimacy, of the sentencing process,” the Court said the ban on cross-examination of a defendant during allocution is so obvious that the fact it’s not written into the Federal Rules of Criminal Procedure makes no difference. Allocution “has value in terms of maximizing the perceived equity of the process, because the defendant is given the right to speak on any subject of his choosing prior to the imposition of sentence.”

The Court said that cross-examination on the subject of Moreno’s guilt was contrary to the purpose of Rule 32 and to the purposes of allocution. Plus, it was obvious from the court’s sentence that the cross-examination affected the amount of time given.

Moreno’s sentence was vacated, and he was sent back for resentencing.

United States v. Moreno, Case No. 14-1568 (3rd Circuit, January 5, 2016).

7TH CIRCUIT VACATES SENTENCE BECAUSE OF VAGUENESS OF SUPERVISED RELEASE STANDARD CONDITIONS

Matthew Poulin was sentenced in 2013 to 115 months imprisonment followed by a life term of supervised release after he pled guilty to receipt and possession of child pornography. Poulin appealed, and the 7th Circuit reversed. On remand, the district court resentenced Poulin to 84 months followed by a 10-year term of supervised release., imposing 13 standard conditions of supervision and seven special conditions.

On appeal from the second sentencing, Poulin challenged the various conditions of his supervised release. The 7th Circuit reversed the sentence, declaring virtually every standard condition of supervision unacceptably vague, and directing the district court to clarify the condition or, in many cases, justify its inclusion in the first instance.

For example, the defendant challenged the requirement that he “not frequent places where controlled substances are illegally sold, used, distributed, or administered,” arguing that “frequent” was impermissibly vague. Relying on a recent decision, the 7th Circuit agreed, because the condition “contained no indication of how many trips constitute ‘frequenting’ such places,” and because the condition, “read literally, improperly imposes strict liability because ‘there is no requirement that [the defendant] know or have reason to know or even just suspect that such activities are taking place.’”

The decision savages the list of standard conditions of supervision that are included by rote in almost every Federal sentence handed down. The special conditions were vacated as well, not because the district court abused its discretion but rather because the Circuit believes that where one condition is vacated for resentencing, they all are.

In a final peculiar note, the Court of Appeals directed that “the district court … include a requirement that Poulin, on the eve of his release from prison, attend a brief hearing before the sentencing judge (or his successor) in order to be reminded of the conditions of supervised release. That would also be a proper occasion for the judge to consider whether to modify one or more of the conditions in light of any changed circumstances brought about by Poulin’s experiences in prison.”

United States v. Poulin, Case No. 14-2458 (7th Circuit, January 5, 2016)

AS CONGRESS GETS BACK TO WORK, NEWS MEDIA SPECULATE ON FATE OF SENTENCING REFORM AND CORRECTIONS ACT

“Will Mitch McConnell allow a vote on justice reform?” Politics 365, a political news website aimed at minority communities, asked last week. It noted that in early December, Senate Majority Leader McConnell told the New York Times that he “hadn’t decided yet” whether a vote on the Sentencing Reform and Corrections Act (S. 2123).

Many on the right have joined what many on the left have been saying for years about the U.S. justice system. That is, that it has become unfair, ridiculously expensive, too intrusive as it cripples the futures of many Americans. Sen. Charles Grassley (R-Iowa), chairman of the Senate Judiciary Committee, said he introduced S. 2123 after studying state laws in Georgia and Texas, where legislators were “doing some interesting things to reduce recidivism as well as the burden on the taxpayer while lowering the crime rate.”

The Sentencing Reform and Corrections Act has been approved by judiciary committees in both chambers with bipartisan support. It would cut mandatory minimum drug and gun sentences and allow many federal prisoners to earn credits toward early release for completing rehabilitative programs in prison. The Wall Street Journal reported last week that the bills are “likely to see a vote in Congress this year.”

But not all the news is positive. Politics 360 reported that only one presidential candidate, Sen. Rand Paul (R-Kentucky), has pledged to sign a bill ending mandatory minimums. Hillary Clinton has stopped short of that, saying only she would be in favor of shortening mandatory sentences. Other candidates, such as Donald Trump, Jeb Bush, Marco Rubio, haven’t even spoken on the issue.

And then there’s Sen. Ted Cruz. During the markup on the bill, Cruz argued that the legislation would be helpful in letting out “violent criminals” and “armed career criminals.”

A report at Tickle the Wire, a Federal law enforcement website, reported that “two significant bills, part of Obama’s drug enforcement policy agenda, are pending in Congress. The Smarter Sentencing Act of 2015 would reduce mandatory minimums further, and the Sentencing Reform and Corrections Act of 2015 would reduce enhanced penalties for repeat drug offenders, eliminate three-strikes mandatory life sentences unless the prior convictions were for serious or violent drug violations, and provide early releases to prisoners who engage in programs involving education, work training, or drug rehabilitation. Both of these bills have broad bipartisan support in Congress.”

We’ll report every week on the status of legislation, whether it’s moving forward or just standing still.

Legal Information Services Associates provides research and drafting services to lawyers and inmates. With over 20 years experience in post-conviction motions and sentence modification strategy, we provide services on everything from direct appeals to habeas corpus to sentence reduction motions to halfway house and home confinement placement. 

If you have a question, contact us using our handy contact page. We don’t charge for initial consultation. 

Do you want this newsletter in PDF format?  Click here.

This week:

6th Circuit Rules Johnson is Retroactive

11th Circuit Chips Away at ACCA and Career Offender

Judge Finds U.S. Attorney’s Explanation ‘Glib” And “Disappointing”

Reading The Fine Print – § 2255 Motion Time Barred Because of Filing Error

Call For Obama To “Go Big” On Pardons

Congressional Action On Sentence Reform – First We Have to Get ‘Em Back to Work

6TH CIRCUIT RULES JOHNSON IS RETROACTIVE

Windy Watkins is not your usual armed career criminal. But in 2005, she pled guilty to being a felon in possession. She had three qualifying priors under the Armed Career Criminal Act, giving her a mandatory 15-year sentence.

In 2011, Windy filed a § 2255 motion, which – if you read the Daniels decision below – you know was filed years too late. The district court denied the motion as untimely. In 2014, she filed a second 2255 motion, arguing that in light of Descamps v. United States, her felony escape conviction did not qualify as an ACCA predicate offense. The district court transferred the motion to the 6th Circuit Court of Appeals for consideration whether authorization of a second or successive 2255 motion was warranted under § 2255(h). The motion was pending when Johnson v. United States was decided last June, and Windy promptly amended her request to base her new 2255 motion on Johnson.

Last week, the Court of Appeals blew life into Windy’s 2255 motion. Determining that Johnson announced “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable,” the appellate court granted Windy the right to proceed with a second 2255 motion.

The 6th Circuit held that the rule announced by Johnson is new “because, in reaching its holding that ACCA‘s residual clause is void for vagueness, the Supreme Court explicitly overruled its earlier rulings to the contrary.” The Johnson rule was previously unavailable to Watkins, because until June 2015 it was prohibited “rather than dictated, by existing Supreme Court precedent.” Finally, Johnson’s rule is derived from the Fifth Amendment prohibition against the enforcement of a criminal law that is “so vague that it fails to give ordinary people fair notice of the conduct it punishes, or … invites arbitrary enforcement.”

Because Johnson announced a substantive rule that prohibits the hanging of ACCA‘s 15-year mandatory minimum sentence on defendants whose status depends on the unconstitutionally vague residual clause, the Court of Appeals concluded that Johnson’s rule is categorically retroactive to cases on collateral review.

This is good news for people with ACCA and career offender convictions.

In re Watkins, Case No. 15-5038 (6th Cir. Dec. 17, 2015)

11th CIRCUIT CHIPS AWAY AT ACCA AND CAREER OFFENDER

The 11th Circuit had already declared Alabama’s third-degree burglary statute to be indivisible under Descamps v. United States, and not to be counted as a predicate for an Armed Career Criminal Act or a Guidelines Chapter 4 career offender sentence. United States v. Howard, 742 F.3d 1334 (11th Cir. 2014). Now, the Circuit has driven a stake of holly into the burglary statute’s heart, ruling last week that it is not a crime of violence, either.

Jeremy Nelson and Ted Snow were felons in possession who both got ACCA sentences because they had prior convictions under Alabama Code § 13A-7-7(a) for third-degree burglary. They argued that the burglary convictions were not violent felonies under the ACCA after the Supreme Court’s decision in Johnson v. United States.

In a decision issued last week, the 11th Circuit agreed. The Court said the “Alabama statute of conviction criminalizes ‘knowingly enter[ing] or remain[ing] unlawfully in a building with intent to commit a crime therein’.” Thus, the crime does not “ha[ve] as an element the use, attempted use, or threatened use of physical force against the person of another.” Even if it did, the Court said, Johnson declared the ACCA’s residual clause to be unconstitutionally vague. “Without the residual clause of the ACCA, there is no longer any basis for characterizing the Alabama third degree burglary statute as a violent felony under the ACCA.”

United States v. Nelson, Case No. 13-11537 (11th Cir. Dec. 30, 2015)

JUDGE FINDS U.S. ATTORNEY’S EXPLANATION ‘GLIB” AND “DISAPPOINTING

A month ago, we reported on a judge in the U.S. District Court for the Eastern District of New York had caught the Government including warnings in grand jury that improperly demanded secrecy from their recipients. In a second case in the District, another judge last week refused to grant a defense motion suppressing the fruits of the subpoenas, but cautioned prosecutors he wouldn’t rule out suppression if they issued other wrongly worded subpoenas in the future.

“Now that the government is unambiguously on notice of this problem and the need to correct it, continued violations could well warrant severe remedies,” Eastern District Judge Raymond Dearie wrote in United States v. Gigliotti, Case No. 15-cr-204.

The Judge told prosecutors to report to him on “how extensively this or similar language has been used in grand jury subpoenas by the United States Attorney’s Office.” In the government’s reply, Assistant U.S. Attorney James Miskiewicz said the language had been mistakenly included in a few of the subpoenas because he had missed the language when the subpoenas were being finalized by his staff.

Judge Dearie’s suppression ruling called these explanations about the subpoenas “curious” and “disappointing.” The judge said he was “bemused by the government’s rather glib explanation that the violations were simply ‘inadvertent and unintentional.'”

READING THE FINE PRINT

Like about 6,500 federal prisoners last year, Roscoemanuel Daniels filed a motion to vacate his sentence under 28 U.S.C. § 2255. But unlike almost all of his fellow filers, he didn’t pay a lot of attention to the deadlines for filing set out in § 2255(f)(1). The district court found that because Daniels’ conviction had become final on March 23, 2012, but he didn’t file until September 4, 2013, his Sec. 2255 motion was time-barred. Daniels appealed.

Under 2255(f)(1)’s statute of limitations, a prisoner must ordinarily file his § 2255 motion within one year of the date on which his judgment of conviction becomes final. Under the prison mailbox rule, a pro se prisoner’s court filing is deemed filed on the date it is put in legal mail at the prison. The court assumes, “absent evidence to the contrary … that a prisoner delivered a filing to prison authorities on the date that he signed it.”

Daniels’ § 2255 motion was signed and dated September 4, 2013, which – absent evidence to the contrary – pretty much settled the issue, and did so in a way that wasn’t helpful to Daniels. But Daniels maintained that the filing was timely under the prison mailbox rule, because he originally delivered his § 2255 motion to prison authorities for mailing on an earlier date. In the district court, he submitted an affidavit that said, “On March 13, 2013, I placed my motion for relief under § 2255, in the prison mailbox.”

The Court noted that Rule 3(d) of the Rules Governing Section 2255 Proceedings lets a prisoner show that his motion was timely by making the type of declaration Daniels made. However, Rule 3(d) requires not only that a prisoner’s declaration “set forth the date of deposit,” but also mandates that he “state that first-class postage has been prepaid.” Daniels’ affidavit set forth the date he said he deposited the motion in the mail, but it did not state that first-class postage had been prepaid.

The Court of Appeals was not sympathetic. It said “Rule 3(d) has only two requirements with respect to the content of the prisoner’s declaration. To demand anything other than strict compliance with those requirements would render them nullities. Because Daniels did not satisfy the requirements of Rule 3(d), he cannot avail himself of the prison mailbox rule and the district court did not err in dismissing his § 2255 motion as time-barred.” In other words, Rule 3(d) only required that Daniels do two simple things, and he messed one of them up.

The lessons here? Be on time. Read and follow the rules. Tell the truth. It’s not that hard – but it’s that critical.

Daniels v. United States, Case No. 14-14363 (11th Cir. Dec. 30, 2015)

CALL FOR OBAMA TO “GO BIG” ON PARDONS

Jeffrey Toobin, a legal writer and CNN analyst, wrote in the Dec. 22, 2015, New Yorker magazine that 2016 is the year that Obama should “go big” on pardons. He argued that Obama’s deeds should match his rhetoric:

“Obama should be considering action on a vast scale. When it comes to mass incarceration, he has been content so far to work around the fringes. He has asked Congress to consider reducing sentences for certain crimes. He has told Attorney General Loretta Lynch to restrict the use of solitary confinement in federal prisons. These are worthy, modest goals. But the pardon power, with its roots in the monarchy, allows a President to go big – and that’s exactly how Obama should go.”

Toobin suggested that Obama publish the names of people being considered for pardons. This way, “members of the public can make their views known about the wisdom … of letting each individual out of prison.” Additionally, “this process could allow the President to end or reduce the sentences of many more prisoners than he has done so far. Obama could make the case for pardons or commutations on an individual-by-individual basis, or he could establish a broader rule — that, say, every nonviolent drug offender with just a single conviction, or possession of a certain quantity of drugs, would be eligible.”

CONGRESSIONAL ACTION ON SENTENCE REFORM – FIRST WE HAVE TO GET ‘EM BACK TO WORK

The Senate resumes work after the holidays on Monday, January 4, 2016. The House reconvenes the next day

Neither chamber has yet scheduled the Sentencing Reform and Corrections Act for floor action. The National Law Journal reported on December 28, 2015, that “Mark Holden, Koch Industries’ general counsel, predicted the bill will get a ‘floor vote by late January, early February,’ and will move on to the president’s desk soon after.”   Koch Industries has joined with other organizations across the political spectrum to push for the bills’ passage.

We’ll report every week on the status of legislation, whether it’s moving forward or just standing still.

Legal Information Services Associates provides research and drafting services to lawyers and inmates. With over 20 years experience in post-conviction motions and sentence modification strategy, we provide services on everything from direct appeals to habeas corpus to sentence reduction motions to halfway house and home confinement placement. 

If you have a question, contact us using our handy contact page. We don’t charge for initial consultation. 

Do you want this newsletter in PDF format?  Click here.

This week:

7th Circuit Throws Out Illegal-Reentry “Aggravated Felony” On Johnson Grounds

Conviction Nullified For Nullification Advocates

Supreme Court Update On Johnson Retroactivity

FBI Up, BOP Down In 2016 Budget

Senator Grassley Delivers The Pork For The BOP

Some Optimism For Congressional Action On Sentence Reform – But It Had Better Happen Soon

USING UNCHARGED CONDUCT TO INCREASE SENTENCES

It’s a rare defendant who hasn’t heard of or experienced having a judge enhance a Guidelines score based on facts of which the defendant was never convicted.  You pled to distributing five grams of cocaine powder on a single rainy Thursday, but suddenly, at sentencing, the court says you really sold two kilos of the stuff over a six-month period. Where’d that come from?

The use of so-called acquitted conduct in calculating guidelines ranges and varying upwards for sentences has been around as long as the Sentencing Guidelines. Last week, the U.S. Court of Appeals for the D.C. Circuit denied rehearing in United States v. Bell, a case questioning whether relying on acquitted conduct is constitutional, two judges filed dissenting opinions worth noting.

Judge Brett Kavanaugh argued that Congress or the Sentencing Commission should act now in order to address problems with acquitted conduct. Judge Patricia Millett wrote “in a constitutional system that relies upon the jury as the ‘great bulwark of [our] civil and political liberties,’ it is hard to describe Bell’s sentence as anything other than a “perverse result … [W]hen the central justification the government offers for such an extraordinary increase in the length of imprisonment is the very conduct for which the jury acquitted the defendant, that liberty-protecting bulwark becomes little more than a speed bump at sentencing ….”

Also last week, the 5th Circuit provided a perfect illustration of what Judge Millett is talking about. Former Deputy Sheriff Mark Hebert was convicted of fraud for assuming another man’s identity for the purpose of using his credit cards and bank account. With all of the counts stacked, he was looking at a statutory maximum of 153 years, but his Guidelines were only 84 months. However, the district court suspected that Deputy Hebert had killed the victim and disposed of the body in order to pull off the fraud – even though the government admitted it lacked evidence to convict Hebert for it – so the judge departed upward from 84 months to 1,104 months (92 years).

The 5th Circuit upheld the sentence, “because we have held that courts can engage in judicial fact-finding where the defendant’s sentence ultimately falls within the statutory maximum term. Following Booker, we noted that ‘[t]he sentencing judge is [still] entitled to find by a preponderance of the evidence all the facts relevant to the determination of a Guideline sentencing range and all facts relevant to the determination of a non-Guidelines sentence’.” The Circuit has “foreclosed as-applied Sixth Amendment challenges to sentences within the statutory maximum that are reasonable only if based on judge-found facts.”

This is precisely what troubles the D.C. Circuit judges. Perhaps soon the Supreme Court can be convinced to look at the question.

United States v. Bell, Case No. 11-3032 (D.C.Cir. Dec. 22, 2015)
United States v. Hebert, Case No. 14-3105 (5th Cir. Dec. 23, 2015)

CONVICTION NULLIFIED FOR NULLIFICATION ADVOCATES

A Denver District Court judge dismissed all charges Dec. 16th against two men charged with jury tampering for handing out pamphlets in front of the courthouse. The two were each charged with seven counts of jury tampering for handing out literature in front of the courthouse explaining that a jury has a right to acquit people if they disagree with the law, a doctrine known as “jury nullification.”

Around since the 17th century, jury nullification occurs in a trial when a jury acquits a defendant, even though the members of the jury may believe that the defendant did the illegal act but they don’t believe he should be punished for it. This may occur when members of the jury disagree with the law the defendant has been charged with breaking, or believe that the law should not be applied in that particular case.  Nullification has always been a dirty secret: lawyers are prohibited from telling the jury it has a nullification power, and judges almost to a jurist refuse to inform the jury that it can act lawlessly and acquit people without any fear of reprisal.

In the Denver case, the two men were “regular fixtures in Denver’s protest community.” Last July, they were distributing jury nullification literature to people entering the courthouse when they were arrested. A local judge ordered the charges dropped, holding that they were not targeting any specific jurors, but were just exercising their First Amendment rights. The two have since filed a federal civil rights lawsuit against the police who arrested them.

7TH CIRCUIT THROWS OUT ILLEGAL-REENTRY “AGGRAVATED FELONY” ON JOHNSON GROUNDS

Raul Vivas-Ceja enjoyed life north of the Mexican border, which he had crossed more than once without benefit of Government permission. Unfortunately, the fun he had in U.S. had come with a price: Vivas-Ceja has convictions for driving with a revoked license, disorderly conduct, and driving while intoxicated. He also has a felony conviction for fleeing the police.

When Vivas-Ceja was arrested for illegally reentering the United States after a prior deportation, his maximum sentence was raised to 20 years because the district court found the fleeing offense to be an “aggravated felony” due to 18 U.S.C. 16(b).  An “aggravated felony” is any felony that “involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”

Vivas-Ceja’s district court concluded that his fleeing conviction was a crime of violence, and thus, an aggravated felony. He objected that the “substantial risk” definition was unconstitutionally vague – the exact argument that won in Johnson v. United States – but the district court classified the fleeing conviction as a crime of violence and increased his sentence for it.

Last week, the 7th Circuit reversed the sentence. Holding that the “Due Process Clause prohibits the government from depriving a person of liberty under a statute ‘so vague that it fails to give ordinary people fair notice … or so standardless that it invites arbitrary enforcement’,” the Court of Appeals held that 18 U.S.C. 16(b) is “materially indistinguishable from the ACCA’s residual clause.”

The 7th Circuit said that “just like the residual clause, Sec. 16(b) offers courts no guidance to determine when the risk involved in the ordinary case of a crime qualifies as ‘substantial’ … Applying Johnson’s reasoning here, we conclude that Sec. 16(b) is unconstitutionally vague.”

This Johnson-like issue could become as big for “illegal reentry” defendants as Johnson itself is to ACCA defendants.

United States v. Vivas-Ceja, Case No. 15-1770 (7th Cir. Dec. 22, 2015).

SUPREME COURT UPDATE ON JOHNSON RETROACTIVITY

Last week, we reported that three case currently before the Supreme Court asking that last summer’s decision in Johnson v. United States be made retroactive, so that people already sentenced under the Armed Career Criminal Act can undo their sentences based Johnson. One of the cases has been dismissed, but two remain.

Those cases – In re Triplett, No. 15-626 (filed Nov. 10, 2015); and In re Sharp, No. 15-646 (filed Nov. 16, 2015) – ask for a writ of habeas corpus direct from the Supreme Court.  Triplett also asked for a writ of mandamus directing lower courts to treat Johnson as retroactive.

Last week, the Supreme Court set both Triplett and Sharp for consideration at the Court’s January 8, 2016, conference. If the Court decides to hear either matter, it will decide to do so at that time. If it accepts one or both of the cases, briefs will be filed and the cases will be argued before the Court.  For the Supreme Court to rule on Johnson retroactivity before the June deadline for prisoners to file for Johnson relief, Court followers generally agree that the Court will have to decide to accept a petition by January 15th.

In re Triplett, Case No. 15-626 (filed Nov. 10, 2015); In re Sharp, No. 15-64.6 (filed Nov. 16, 2015)

FBI UP, BOP DOWN IN 2016 BUDGET

The FBI’s a winner and BOP’s a loser in the annual battle over spending U. S. Justice Department funds.

A Congressional budget deal for the current fiscal year finalized by negotiators several weeks ago provides the FBI with $8.5 billion, the largest chunk of any Justice Department agency. DOJ’s other major sub-agency is the Bureau of Prisons, which is getting a bit less from Congress this year, $6.92 billion compared with about $6.95 billion last year. Congress rejected a request from the Obama administration to raise the BOP total to $7.3 billion.

Critics charge that the prisons agency is taking too big a chunk of the Justice Department’s budget. A Charles Colson Task Force initiated by Congress soon will propose changes aimed at reducing the federal prison population, which already has been dropping slightly after a historic high, as does legislation pending in both the Senate and House to trim mandatory minimum sentences in drug cases.

SENATOR GRASSLEY DELIVERS THE PORK FOR THE BOP

It’s fairly well known that Sen. Charles Grassley, an Iowa Republican who is chairman of the Senate Judiciary Committee, has been a long-time supporter of mandatory minimum sentences. Sen. Grassley now supports the pending S. 2123, The Sentencing Reform and Corrections Act, but he came to the party a little late and rather reluctantly.

Nevertheless, in a news release released last week, Sen. Grassley took credit for one significant criminal justice accomplishment. He claims that after he turned up the heat on the BOP “for a decision to remove pork from the menu in federal prisons for alleged cost considerations and prisoner dislike, the Bureau of Prisons promptly reversed its decision after revealing that prisoners actually liked pork and the costs for serving pork were not prohibitive.”

SOME OPTIMISM FOR CONGRESSIONAL ACTION ON SENTENCE REFORM – BUT IT HAD BETTER HAPPEN SOON

Congress has left Washington, D.C., for the holidays, but the talking about sentence reform continues.

In a year-end analysis of Congressional accomplishments in 2015 – and there were a surprising number of them – a political writer for The Atlantic magazine reported last Wednesday that while “expectations for major legislative action are always low in a presidential-election year … the ripest area for bipartisanship is criminal justice reform, which has attracted the interest of lawmakers from across the political spectrum. Obama has listed it as a priority, and advocates believe they have a small window early in the year before the presidential and legislative primary campaigns make a major bill impossible.”

Editors at The Hill (a Washington D.C., political publication widely read on Capitol Hill), said last Tuesday that “we are encouraged to see female lawmakers in Congress getting behind criminal justice reform legislation on a bipartisan basis … What these bills represent is recognition that criminal justice in the United States is badly broken and in need of broad, systemic reform …”

The Daily Caller, an online publication focused on politics, said in a story last Tuesday that “The consensus that has emerged on mandatory minimum sentencing and prison reform is both wide and deep. Interest groups and individuals from across the political spectrum, including Koch Industries, the ACLU, the American Conservative Union, #Cut50’s Van Jones, and Americans for Tax Reform’s Grover Norquist, all agree on the need to reform mandatory minimum sentencing laws.  The overwhelming agreement among experts, advocates, and the public has made it easier for politicians of both parties to come together. Indeed, it would be difficult to find another issue on which so many Republican leaders agree as strongly with President Obama.”

Justice Action Network, a conservative-liberal coalition advocating criminal justice reform, said in a report issued last week that Senate Majority Leader Mitch McConnell has committed to floor action this Congress (which would mean in 2016), while Speaker of the House Paul Ryan said that he’s personally in favor of criminal justice reform and it’s an issue the House should be addressing.

Finally, the Huffington Post said last Tuesday that “criminal justice reform is enjoying a moment of mainstream support: Mass incarceration is now widely recognized as wasteful, in terms of dollars and lives, and the language of reform has been echoed by politicians, pundits and the media throughout 2015 … However, we cannot pop the champagne corks just yet. The latest prisoner statistics showed that there has only been a one percent reduction in the state and federal prison population ¬– nothing near the dramatic changes we need to see to bring real relief to the communities most impacted by incarceration.”

We’ll report every week on the status of legislation, whether it’s moving forward or just standing still.

Legal Information Services Associates provides research and drafting services to lawyers and inmates. With over 20 years experience in post-conviction motions and sentence modification strategy, we provide services on everything from direct appeals to habeas corpus to sentence reduction motions to halfway house and home confinement placement. 

If you have a question, contact us using our handy contact page. We don’t charge for initial consultation. 

Do you want this newsletter in PDF format?  Click here.

 

This week:                

The Johnson Retroactivity Plot Thickens…

Fourth Circuit Sets Oral Argument On Johnson Retroactivity Case

Obama Grants Clemency To Another 95, But His Record Remains Disappointing

Justice Shorts

Advocate For Criminal Justice Reform Says Congress To Vote On Sentencing Reform Early Next Year

The Johnson Retroactivity Plot Thickens…

Even while Johnson v. United States retroactivity cases work their way through Courts of Appeal, the Supreme Court already has received three cases  addressing whether people already sentenced under the Armed Career Criminal Act (18 U.S.C. § 924(e)) can undo their sentences based on last June’s Johnson decision. The two cases still pending at the high court argue that Johnson both (1) is a “substantive” change in criminal law (and therefore retroactively enforceable by federal prisoners filing their initial claims for collateral post-conviction relief); and (2) has been “made retroactive” by the Supreme Court (and can therefore provide the basis for a second-or-successive application for collateral post-conviction relief).

The cases got to the high court so quickly because, unlike certiorari, they are original petitions for habeas corpus. The cases are In re Butler, No. 15-578 (filed Nov. 3, 2015); In re Triplett, No. 15-626 (filed Nov. 10, 2015); and In re Sharp, No. 15-646 (filed Nov. 16, 2015). Petitioner Triplett also asked for a writ of mandamus directing lower courts to treat Johnson as retroactive.

The Supreme Court ordered the Solicitor General to respond to the petitions, an unusual step in an extraordinary writ case. The Solicitor General filed his responses last week.

Despite the filings, the Government has not yet revealed its position on retroactivity. In Butler, the Government agreed the petitioner was entitled to release for a non-Johnson reason, thus making his case moot.  The Supreme Court dismissed Butler’s petition last Monday.  The Government opposed Triplett’s petition, arguing that it was not clear that the Johnson decision will make a difference in his case – that is, even without the residual clause, he might have gotten the same sentence. In effect, the government is saying Triplett isn’t a great vehicle for resolving the Johnson question.

Last Wednesday, the Solicitor General filed an opposition to inmate Sharp’s petition. Once again, the Government did not argue that against Johnson retroactivity. Instead, it contended that Sharp should file a pre-judgment petition for writ of certiorari, because “exceptional circumstances [do not] exist that warrant the exercise of habeas jurisdiction.”

If the Supreme Court is going to rule on Johnson retroactivity before the June deadline for prisoners to file for Johnson relief, Court followers generally agree that the Court has to accept a petition by January 15. Thus, the clock is fast running out for the Supreme Court to issue a decision on retroactivity in time for virtually all of the prisoners who would benefit from such a ruling to take advantage of it.

In re Butler, Case No. 15-578 (filed Nov. 3, 2015); In re Triplett, Case No. 15-626 (filed Nov. 10, 2015); In re Sharp, No. 15-646 (filed Nov. 16, 2015)

OBAMA GRANTS CLEMENCY TO 95 PRISONERS, BUT HIS RECORD REMAINS DISAPPOINTING

The Obama Administration swept into office seven years with an ambitious clemency plan. Then nothing happened. For the first few years of the Obama presidency, the Chief Executive’s penuriousness with pardons and clemencies made prior presidents seem like Santa Claus by comparison. Now, with a late-term flurry of pardons and commutations last Friday, the President is trumpeting his achievements.

The bad news is that the President has commuted the sentences of only about 1 percent of those eligible. The good news is that the White House is saying that the President has pledged to issue more pardons and commutations in 2016, through a clemency initiative intended to correct what he sees as an injustice in sentencing laws passed during the “war on drugs” of the 1980s and ’90s. Of Friday’s commutations, at least 24 were for dealing crack cocaine. Eight were for marijuana.

The President hasn’t had to do any time himself, or he wouldn’t be so self-satisfied. Despite the Administration’s predictions of reform back in 2009, it was only in 2014 – when the fiscal and human costs of protracted incarceration were becoming a bipartisan political cause – that the President finally decided to tinker with the system. The result is one of the oddest workarounds in the recent annals of bureaucracy: Clemency Project 2014.

Under CP14, five outside interest groups – the American Bar Association, the American Civil Liberties Union, the National Association of Criminal Defense Lawyers, the Federal Defenders and Families Against Mandatory Minimums – were enlisted to speed the processing of clemency requests. They mobilized 4,000 volunteer lawyers and law students to help inmates prepare applications for reduced sentences. Those cases that made it through CP14 would then presumably be steered into an express lane at the Justice Department and be on their way to the president’s desk.

Applicants to CP14 had to have been sentenced to at least ten years for crimes that, under today’s guidelines, would bring significantly shorter sentences. They had to have no connections to drug cartels, gangs or organized crime, and no history of violence. They had to have an unblemished record of good behavior in prison. Even with those stringent tests, CP14 received over 33,000 applications, according to Cynthia Roseberry, a veteran Georgia defense attorney who serves as project manager of CP14. Of those, 18,660 were screened out as unqualified, but the other 14,000-plus are plugged up in the system.

As of now, the number who have been approved by the CP14 steering committee and sent to the pardon attorney in the Justice Department numbered only 224 of the 14,000 who met the stringent eligibility requirements. With the announcement last Friday that he was granting clemency to 95 of those 99 inmates, President Obama has now commuted 174 sentences, almost most of them having reached his desk without benefit of CP14.

The problem is that after navigating the multi-stage process of CP14, applicants still have to pass through the Department of Justice, where the reviewers’ main job is to lock people up, not let people out. David Patton, head of the Federal Defenders of New York, said, “Between prosecutors and defenders, there is ‘a difference in role and perspective’.” Prosecutors are “less able to see things through the eyes of our clients, or through the eyes of anyone other than the prosecutor. In some sense, by recommending that a sentence be reduced you are taking a position that is, in all likelihood, contrary to what DOJ took at the sentencing proceeding,” he said.

An excellent analysis of the state of clemency appeared in “The Bureaucracy of Mercy,” published online by The Marshall Plan, Dec. 14, 2015.

FOURTH CIRCUIT SETS ORAL ARGUMENT ON JOHNSON RETROACTIVITY CASE

The United States Court of Appeals will hear oral arguments at the end of next month on whether Johnson v. United States retroactively applies to cases on collateral review.

The prisoner in the case has asked for leave to file a second and successive Sec. 2255 motion to undo his Armed Career Criminal Act sentence, on the grounds that last summer’s Johnson decision announced “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was not previously available” pursuant to 28 U.S.C. Sec. 2255(h)(2).

If the Court decides that Johnson is retroactive, people seeking to challenge their ACCA convictions based on Johnson will only have until late June 2016 to file their motions. Of course, there’s a risk that the Court will not rule by then, but that won’t excuse people from filing within the one-year window set by Sec. 2255(f)(3).

In re Creadell Hubbard, Case No. 15-276 (4th Cir.) (read Hubbard’s brief here)

JUSTICE SHORTS

DON’T YOU WISH THIS GUY HAD BEEN YOUR LAWYER?

There is hardly an inmate out there who doesn’t wish his or her lawyer had been a little more aggressive, or focused, or smarter … or something. You want an aggressive advocate?  How about Douglas Crawford?

The Dec. 16 ABA Journal reports a California appeals court found that a trial judge was justified in tossing a case filed by a lawyer who produced pepper spray and a stun gun at a deposition and threatened to use them on opposing counsel. The court upheld the terminating sanction against California solo practitioner Douglas Crawford in a Dec. 9 opinion.

According to the appeals court, Crawford held the can of pepper spray about three feet from the face of the opposing lawyer during an April 2014 deposition. Crawford told the other lawyer: “I will pepper-spray you if you get out of hand.” Crawford also pointed the stun gun at Traver’s head and said: “If that doesn’t quell you, this is a flashlight that turns into a stun gun.” Crawford then discharged the stun gun close to Traver’s face, the appeals court said.

The California bar is seeking to disbar Crawford over the incident. It seems a shame – most defendants can only dream about having an advocate who’s this wrapped up in his client’s case.

ADMINISTRATION AVOIDS REINING IN PROSECUTORS

Last Wednesday, liberal journalist Nat Hentoff wrote a commentary attacking Obama for missing a chance to enact meaningful criminal justice reform. Hentoff complains that the Administration should have abandoned a Bush administration policy requiring federal prosecutors to charge criminal defendants with the most serious provable charge available. Instead of adopting the old Clinton administration policy to select charges based on “individualized assessment of the extent to which particular charges fit the specific circumstances of the case,” Obama announced in 2010 that federal prosecutors would continue to be subject to a charging policy which “maintains the presumption that prosecutors will charge the most serious readily provable crime.”

The result was a continuing increase in the number of defendants pleading guilty to offenses that required them to serve mandatory prison time. By the end of Obama’s first term, the federal prison population was rising while state prison populations were declining.

ADVOCATE FOR CRIMINAL JUSTICE REFORM SAYS CONGRESS TO VOTE ON SENTENCING REFORM EARLY NEXT YEAR

A leading business advocate of criminal justice reform predicted last Wednesday that S. 2123 and H.R. 3713 (the Sentencing Reform And Corrections Act of 2015) – bipartisan legislation to overhaul sentencing laws – will be approved early next year despite differences among Congressional supporters on the bill’s final language.

Mark Holden, general counsel and senior vice president at Koch Industries Inc., told an audience at the Council of State Governments Justice Center’s annual conference in Washington that he envisions a “floor vote by late January, early February” in the House and Senate on corresponding criminal justice reform bills.

The Senate bill passed out of the Judiciary Committee in October by a 15-5 vote.  Congress was unable to take up the criminal justice reform issues in the flurry of year-end of business it concluded before getting out of town for Christmas and New Year’s.

The legislation expands the power of judges to sentence below minimum terms for certain nonviolent drug offenders and some firearm offenders. It also incorporates recidivism-prevention provisions introduced in an prior bill by Sens. John Cornyn, R-Texas, and Sheldon Whitehouse, D-RI.

We’ll report every week on the status of legislation, whether it’s moving forward or just standing still.

Legal Information Services Associates provides research and drafting services to lawyers and inmates. With over 20 years experience in post-conviction motions and sentence modification strategy, we provide services on everything from direct appeals to habeas corpus to sentence reduction motions to halfway house and home confinement placement. 

If you have a question, contact us using our handy contact page. We don’t charge for initial consultation. 

Do you want this newsletter in PDF format?  Click here.

This week:

Liar, liar, pants on fire

It ain’t over ‘til it’s over

It wouldn’t be Christmas without a Grinch

Sentencing Commission begins to weigh public
       comments on “crimes of violence” amendment

Congressional sentence reform: A lot of talking going
       on (and some strange alliances being formed)

LIAR, LIAR, PANTS ON FIRE

When DEA agents showed up at Mike Thompson’s apartment, the officers asked if Thompson would consent to a search. Thompson eventually agreed, but he later moved to suppress the evidence they found, arguing he was coerced because the officers threatened to arrest his sister and girlfriend unless he let the search go on.

The District Court sided with the DEA agents, finding Thomp-son’s version of events not credible.   After Thompson’s motion to suppress was denied, a jury convicted him. His presentence report recommended a two-level enhancement for obstruction of justice on the grounds Thompson lied during the suppression hearing, noting: “The Court expressly characterized Mr. Thompson’s testimony as equivocal inconsistent, and contradictory. The Court concluded that his conflicting testimony on this central issue could not be credited.”

Thompson fought the enhancement, maintaining he “made [the disputed] statements believing that they were true.” But the sentencing judge didn’t rule on his objection, instead just saying, “Okay, I think the PSR accurately has calculated the guideline range.”

Last week, the 2nd Circuit reversed.

The world is full of false testimony. But contrary to what a lot of people think, most of the falsehoods that come out of witnesses’ mouths are not lies. Instead, they result from mistaken memory, poor perception, confusion over the questions, or nervousness on the stand.   In Mike Thompson’s case, his testimony about how he was threatened with the arrest of his family was pretty clearly how he perceived it. But he was ambiguous and vague on the details. The Court of Appeals said perjury requires more than a false statement. It must be a false statement made with “willful intent … rather than as a result of confusion, mistake, or faulty memory.” A district court cannot find obstruction merely because a court credits the testimony of one party over another does not necessarily mean the other party lied. The Court of Appeals said that “such a per se rule would … leave no room for consideration of possible mistake, confusion, or honest belief.”

The 2^nd Circuit said that if a defendant objects to an obstruction-of-justice enhancement based on perjury, district courts must make a finding that the false testimony was intentionally made. In other words, before a court can call a defendant “liar, liar,” it has to make a detailed finding that his pants really are on file.

United States v. Thompson, Case No. 14-2267 (2^nd Cir. Dec. 9, 2015) (to be published)

IT AIN’T OVER ‘TIL IT’S OVER

Memo to guys on supervised release: If you get violated, and you’re in front of the Judge, don’t laugh.

Ray Ochoa didn’t adjust to supervised release after he got out of prison, and finally was sent to a residential reentry center by his Probation Officer. As the court described it, things did not go well: Ochoa “demonstrated argumentative and disrespectful behavior towards the” RRC staff and his probation officer. His supervised release was violated. At sentencing, the Judge warned Ochoa “you make your choices and we respond to them,” then sent him back to prison for a year and a day.

As the Court explained Ochoa’s appeal rights, Ochoa started laughing about the sentence. That was too much for the Judge, who said “you just talked yourself into more time … I just lectured you about respect … and now you laugh at the court.” Figuring the Ochoa hadn’t gotten it yet, the Court said “you that won’t learn without getting the maximum.” He upped the sentence to two years.

Ochoa appealed, arguing that the Court’s 12-month sentence was binding the moment the Judge imposed it, and couldn’t be changed. The 9th Circuit disagreed, holding that a sentence is not final when there is no formal break in the proceedings from which to logically and reasonably conclude that sentencing had finished. The initial year-and-a-day sentence was not binding within the meaning of Rule 35, and neither 18 U.S.C. Sec. 3582(c) nor Rule 35 deprived the district court of jurisdiction to alter the sentence due to Ochoa’s apparently disrespectful conduct during the ongoing sentencing hearing.

The District Judge was right: Ochoa made his choices. The court responded.

United States v. Ochoa, Case No. 14-10124 (9th Circuit, Oct. 22, 2015)

YOU MUST ACT NOW

Johnny Carson’s old sidekick Ed McMahon used to shill for some old folks life insurance on TV. He would look sternly into the camera and intone, “You must act now.” Good advice for inmates looking to file Sec. 2255 motions – the statute has specific deadlines for filing, and you ignore those to your detriment.

Weldon Gilbert found that out. After pleading guilty to a variety of offenses, he had buyer’s remorse. And who could blame him? The plea agreement recommended a sentencing range of 228 to 300 months and required Gilbert to forfeit his house, helicopter, seaplane, and speedboat to pay restitution. In November 2009, the district court sentenced Gilbert to 300 months but delayed a restitution order pending sale of assets.

Selling all of Gilbert’s stuff took awhile. Gilbert’s lawyer supposedly told him his deadline to file a Sec. 2255 motion wouldn’t run until a year after the court entered the final restitution order, which finally happened in fall 2011. Gilbert filed his Sec. 2255 a year after that. But the district court thought his deadline had run out in 2010, and dismissed the motion.

On appeal, Gilbert argued that his Sec. 2255 deadline didn’t come until a year after his 2011 restitution judgment. He contended that the Fat Lady had not sung until the time to appeal the restitution order had passed, almost two years after his 300-month sentence was handed down.

Sec. 2255(f) sets a one-year period of limitation for filing that runs from the date on which the judgment of convic-tion becomes final. The 9th Circuit held that when a judg-ment imposes a sentence but leaves restitution to be determined, the one-year statute of limitations does not restart when the restitution order is later entered. It noted that several statutes, including 18 U.S.C. Sec. 3582(b), state that a “sentence to imprisonment” is a “final judgment,” and cited a 1937 Supreme Court case that held bluntly that “final judgment in a criminal case means sentence. The sentence is the judgment.”

Gilbert’s last line of defense was that the deadline should be waived – a doctrine known as equitable tolling – because his lawyer gave him bad advice. The Court of Appeals held that an attorney’s bad advice is not an “extraordinary circumstance.” Inasmuch as inmates have no constitutional right to counsel on a Sec. 2255 motion, ineffective legal counsel doesn’t warrant equitable tolling.

Remember that. When it comes to post-conviction motions, you’re on your own. Count carefully.

United States v. Gilbert, Case No. 13-36006 (9th Cir., Dec. 7, 2015) (to be published)

IT WOULDN’T BE CHRISTMAS WITHOUT A GRINCH

A group of current and former AUSAs sent a letter to the Senate last Thursday arguing against pending bipartisan legislation that would roll back mandatory minimum sentences for drug trafficking and other crimes.

The National Association of Assistant United States Attorneys says sentencing laws enacted in the 1980s led to dramatic dip in crime, a claim disputed by many crimin-ologists. “Our system of justice is not broken,” according to NAAUSA – whose members’ bread and butter is locking people up for a long time. “Mandatory minimums and proactive law enforcement measures have caused a dramatic reduction in crime over the past 25 years, an achievement we cannot afford to give back.” The letter called for leaving the current sentencing regime alone.

THE SENTENCING COMMISSION WEIGHS PUBLIC COMMENTS ON “CRIMES OF VIOLENCE” AMENDMENT

Last summer, the United States Sentencing Commission proposed a change in its definitions of what kinds of crimes of violence will support a “career offender” enhancement under the Sentencing Guidelines. On Dec. 5, the Commission published comments on the amendment filed by interested parties on the topic.

The proposed amendment will bring the Guidelines definition in line with the Johnson v. United States decision by striking the residual clause from the definition. The effect of the change means that, going forward, many offenses that used to be lumped under the “violent felony” label – like fleeing a cop, reckless endangerment and resisting arrest, just to name a few ¬– will no longer qualify a defendant for “career offender” status.

The other big change proposed is to clean up the definition of felony. The amendment defines “a crime of violence or a drug trafficking offense is a ‘felony’ only if it was classified at the time the defendant was initially sentenced as a felony (or comparable classification) under the laws of the jurisdiction in which the defendant was convicted.”

The amendment won’t immediately benefit people currently doing time. Remember the Guidelines “two-step.” First, the Sentencing Commission has to amend the Guidelines to give relief to people who have not been sentenced yet. Then, the Commission has to conduct a separate proceeding to decide whether to make the Guidelines change retroactive to people already sentenced.

The Sentencing Commission has not yet talked about whether its proposed change should be retroactive. But that didn’t keep some of the commenting parties from addressing it. The Depart-ment of Justice, a couple of county sheriffs and a group of probation officers said that they opposed any move to make the “crime of violence” changes retroactive.

Meanwhile, organizations of public defenders, the Drug Policy Alliance, FAMM and an organization of private lawyers all noted their support for the amendment and for retroactivity.

The Commission plans to adopt a final form of the “crimes of violence” amendment before February. If the Commission would decide to consider retroactivity, it would likely propose to do so early next year.

CONGRESSIONAL SENTENCE REFORM: A LOT OF TALKING GOING ON

On December 3, President Obama met with 13 members of the House and Senate who are leading criminal justice reform in Congress to discuss strategy and the state of the issue in Congress. Discussion focused on the leading proposals that have been voted out of committee in the House and Senate, H.R. 3713 and S. 2123, which include substantial relief for Federal prisoners serving drug and gun offenses.

Meanwhile, last Wednesday, FBI Director James Comey told the Senate Judiciary Committee that he objected to the term “mass incarceration.” Although he praised efforts to achieve “more just” federal sentencing, he said the discussion must be thoughtful, based on a fair and honest understanding of how far we’ve come slashing the crime rate, and without resort to language that distorts reality.

A Bloomberg story last week warned that Federal criminal reform is not yet “a done deal. All sides agree action is essential by early next year or the push will get ensnared in presidential politics. Republican contenders Ted Cruz and Donald Trump already inveigh against putting criminals back on the street.”

We’ll report every week on the status of legislation, whether it’s moving forward or just standing still.

Legal Information Services Associates provides research and drafting services to lawyers and inmates. With over 20 years experience in post-conviction motions and sentence modification strategy, we provide services on everything from direct appeals to habeas corpus to sentence reduction motions to halfway house and home confinement placement.

If you have a question, contact us using our handy contact page. We don’t charge for consultation.

Do you want this newsletter in PDF format?  Click here.

This week:

•     Is there hope for habeas corpus in the 4th Circuit?

•     U.S. Attorney’s Office abandons back-door tattletale policy

•     Drug sentence reductions by the numbers

•     Johnson v. United States is starting to look ‘retro’

•     S. 2123 watch – Concern growing for prompt action

IS THERE HOPE FOR HABEAS CORPUS IN THE 4TH CIRCUIT?

Last summer, the Fourth Circuit ruled that a defendant who had received a life sentence based on a prior conviction that shouldn’t have counted could not attack it through a § 2241 habeas petition. In United States v. Surratt, the defendant entered a guilty plea to conspiracy to distribute cocaine and was sentenced to life imprisonment. He appealed and later filed a § 2255 motion, to no avail. Then, in 2011, the Fourth Circuit decided in United States v. Simmons that it had been incorrectly finding a number of North Carolina misdemeanors to be felonies. If he had been sentenced after Simmons, Mr. Surratt would have faced a 10 year minimum sentence, a far cry from the mandatory life term that he received.

Mr. Surratt filed a request to file a second § 2255 raising Simmons, but the Fourth Circuit said he did not meet the standards set by statute for a second petition. Mr. Surratt then filed a § 2241 petition arguing he was actually innocent of the mandatory minimum sentence the court had previously imposed.

The law prevents Mr. Surratt from challenging his conviction and sentence under § 2241 unless 28 U.S.C. § 2255(e) (called the “savings clause”) applied. The district court concluded that § 2255(e) did not give it jurisdiction to consider Mr. Surratt’s claim in a § 2241 petition. Last summer, the Court of Appeals agreed, saying it was “sympathetic” to Mr. Surratt’s plight, but Congress has the power to define the scope of the writ of habeas corpus, and Congress narrowly limits the circumstances in which a § 2241 petition may be brought.  Mr. Surratt’s petition did not present one of the permitted circumstances. The decision had a spirited dissent, in which the dissenting judge argued that it using habeas corpus to correct a miscarriage of justice like Mr. Surratt’s was “our solemn responsibility.” Instead, he complained, “we guard the Great Writ itself, and so closely that Surratt must spend the rest of his life in prison — against the will of the government and the district court. Our abdication of this responsibility begs the question: quis custodiet ipsos custodies? Who will guard the guards themselves?”

Last Wednesday, the full Fourth Circuit vacated the Surratt opinion from last summer and ordered rehearing en banc (that is, by all 15 active-duty judges). The defendant’s petition for rehearing was supported by a powerful amicus brief from the National Association of Criminal Defense Attorneys.

Rehearing en banc is no guarantee that the decision of the original three-judge panel will be overturned, but en banc rehearings are not common, and usually do not get ordered because the other judges like the original opinion. A new Surratt opinion permitting use of the § 2241 would be a powerful tool for a lot of inmates who too often cannot take advantage of substantive changes in the law, like Simmons, that they in fairness should benefit from.

United States v. Surratt, No. 14-6851 (4th Cir. July 31, 2015), vacated and rehearing en banc ordered, Dec. 2, 2015.

EDNY U.S. ATTORNEY’S OFFICE ABANDONS BACK-DOOR TATTLETALE POLICY

This may only be of interest to the 90% plus of defendants who plead guilty pursuant to plea agreements, but the U.S. Attorney for the Eastern District of New York has been shamed into abandoning its policy of notifying sentencing judges about proffer statements that defendants make in unsuccessful cooperation agreement talks.

Under Guidelines § 1B1.8, any information provided in a proffer session where the Government promises not to use the information against the defendant, cannot be used to set the sentencing guidelines. Despite that, the EDNY U.S. Attorney’s Office made a habit of telling the sentencing judge, usually off the record without the defendant knowing about it, what the defendant might have admitted to during unsuccessful proffer sessions (sessions that did not lead to substantial assistance credit). Last June, Eastern District Judge John Gleeson criticized the policy in an opinion explaining why he imposed an 8½-year prison term for a “fairly run of the mill heroin trafficker” whom Judge Gleeson knew had admitted in proffer sessions to kidnapping, robbery and calling for a drug courier’s murder. The judge said he chose “not to consider in any way” the defendant’s proffer statements.

Judge Gleeson confirmed last month that, soon after his decision, Eastern District prosecutors stopped notifying sentencing judges about proffer statements made in unfruitful cooperation agreement discussions. The discontinuance of the outlying policy brings the Eastern District in line with

In the underlying case, United States v. Rivera, Case No.12-cr-700, Judge Gleeson wrote that that the district policy, which was not disclosed to proffering defendants before they incriminated themselves in proffer sessions, “violates the defendant’s rights in every case in which it is invoked.”

LAST YEAR’S DRUG SENTENCE REDUCTIONS BY THE NUMBERS

The U.S. Sentencing Commission has just issued the 2014 Drug Guidelines Amendment Retroactivity Data Report. The report, available online, reports that 27,824 inmates applied for a sentence reduction pursuant to the 2014 retroactive reductions in the base offense levels for drug sentencing (Section 2D1.1(c) of the Guidelines). Of those applications, 21,003 (75.5 percent) were granted.

The average decrease in sentence amount to 17.8 percent.

JOHNSON V. UNITED STATES IS STARTING TO LOOK ‘RETRO’

Charles Woods was convicted in 2002 of being a felon in possession. Because he had three prior state felonies considered to be violent under the Armed Career Criminals Act (18 USC § 924(e)), he was sentenced to 15 years. Without the ACCA enhancement, he would have gotten a maximum of 10 years.

As everyone with any interest in the matter knows, last June the Supreme Court held in Johnson v. United States that the “residual clause” of the ACCA is unconstitutional. Mr. Woods had such an interest, and he promptly asked the 8th Circuit to give him permission to file a successive § 2255 petition.  Amazingly enough, the Government joined in his request.

One of Woods’s three ACCA predicate offenses was a conviction for attempted burglary, which at the time qualified as a violent felony under the ACCA’s residual clause because it created a “serious potential risk of physical injury to another.” With Johnson throwing out the residual clause, Woods’s conviction for attempted burglary was no longer a predicate offense under the ACCA.

In order to be allowed to file a second § 2255 petition, a defendant has to meet very specific requirements. One is that the motion is being filed within a year of a Supreme Court decision announcing a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.

The 8th Circuit noted that “every circuit confronted with the issue of whether the Supreme Court’s prior holdings have made Johnson retroactive for purposes of § 2255(h)(2) has taken a different approach.” For itself, the Court of Appeals said it had “previously accepted the government’s concession of retroactivity of a new Supreme Court rule as a sufficient prima facie showing to allow a second or successive § 2255 petition. “ Because the Government here admitted that it thought the Johnson ruling was retroactive (based on prior Supreme Court cases defining when a case should be retroactive), the 8th Circuit agreed that “Woods has made a prima facie showing” that he should be allowed to proceed with a second § 2255 motion.

The different Circuits are all over the map on whether Johnson is retroactive or not, and we suspect that it will someday be resolved by the Supreme Court. But anyone whose case might benefit from the Johnson holding should beware: even if the question of Johnson’s retroactivity is not yet settled, § 2255(f)(3) requires that a 2255 seeking relief be filed within one year of Johnson, or by June 26, 2016. You snooze, you lose.

United States v. Woods, Case No. 15-3551 (8th Cir., Nov. 20, 2015) (to be published).

S. 2123 WATCH: CONCERN GROWING FOR PROMPT ACTION (BUT HOUSE VERSION IS PROGRESSING)

S. 2123 (the Sentencing Reform and Corrections Act of 2015) is supposed to be a rare example of bipartisan cooperation in the Senate, but a crowded legislative calendar and the looming election year are endangering the last best hope for criminal justice reform while President Obama is still in office.

With under three weeks left until Christmas, the Senate is focusing on passing a tax extension bill, a reconciliation package to defund Obamacare, a transportation bill, and legislation to fund the government. That means time has run out for criminal justice reform in this calendar year.

Senate Judiciary Chairman Charles Grassley (R-Iowa) said on Nov. 30 that there is “no chance it can be done between now and Christmas.” Observers have long believed that the best chance for passage of criminal justice reform would be before the practical realities of electoral politics intruded in 2016. With the remainder of 2015 taken up by other matters, reformers will have to wait until the Senate gavels back in the new year, in the midst of presidential primary season.

The prospects of pushing forward with the Senate bill just as the presidential primary season is in full swing, with the expected tough-on-crime appeals to the conservative base, is daunting. Primary season is hardly the time for the Republicans back in Washington to be giving up on the well-honed GOP attack lines on crime and pushing forward a progressive new position on incarceration.

Sen. Grassley’s strategy all along has been not to rush the criminal justice reform bill. In fact, he was once a fierce opponent of reductions in mandatory minimums, but he came to support them through a long and arduous committee negotiation. Now, Sen. Grassley and other S. 2123 supporters (the bill now has 28 cosponsors, picking up an additional Republican and Democrat last week) are running short on time to get their bill on the floor, especially if Republican frontrunner Donald Trump stays on top.

The news is not all bad, however. The companion bill in the House of Representatives, H.R. 3713, the Sentencing Reform Act of 2015, has 45 cosponsors, 32 Democrats and 13 Republicans, and was ordered on November 18, 2015, to be voted on with a voice vote (a good sign the Committee does not see it as controversial).

We’ll report every week on the status of legislation, whether it’s moving forward or just standing still.

Legal Information Services Associates provides research and drafting services to lawyers and inmates. With over 20 years experience in post-conviction motions and sentence modification strategy, we provide services on everything from direct appeals to habeas corpus to sentence reduction motions to halfway house and home confinement placement.

If you have a question, contact us using our handy contact page. We don’t charge for consultation.

The United States Sentencing Commission has decided its April 2014 amendment reducing the base offense level for drug offenses by an average of 2 levels should be made retroactive to all Federal prisoners now serving time for drug offenses.

The change could affect about 46,300 offenders, about one out of five inmates now serving Federal sentences.

 The reduction isn’t automatic.  Rather, the Commission’s designation of the amendment as retroactive triggers a prisoner’s right to file a motion for reduction of sentence under 18 U.S.C. § 3582(c)(2).  If the inmate’s drug quantity is affected by the retroactive amendment – and that’s not always a given – the sentencing judge may (and we emphasize “may”) reduce the sentence to anywhere within the new sentencing range.

In deciding a § 3582(c)(2) motion, the court considers the inmate’s conduct since he or she was locked up, whether the public safety might be compromised if the inmate is released early, and all of the same factors on history, the nature of the offense, respect for law and order, and so on and so on listed in 18 U.S.C. § 3553(a).

Several notes of caution:

First, this is for drug defendants only.  You got 63 months for tax evasion?  Tough luck to you.

Second, if you have a nondrug count with a concurrent sentence of the same length, this doesn’t help you, either.  Let’s say you got 168 months for a marijuana grow operation and a concurrent 168 months for being a felon in possession of a firearm.  A § 3582(c)(2) motion won’t be much help, because while it might drop the drug sentence, you would still have 168 months to do on the gun charge.

Third, even if you are eligible for the reduction, the sentencing judge may decide to grant the motion or to deny the motion at his or her whim.  If the motion is granted, how much of a reduction to grant is equally at the judge’s caprice.  Whatever the judge decides is unappealable.  In other words, pro se prisoner filers, remember all those choice words you had about the judge’s lineage?  Oops …

Fourth, while we’re recalling our last visit to the judge’s courtroom, recall all of those complaints you had about the Guideline enhancements the Government was trying to hang around your neck?  You can’t use the § 3582(c)(2) motion to plow that ground again.  The Guidelines say that the court has to assume everything about your Guidelines is correct except for applying the retroactive reduction. 

Fifth, here’s another limitation.  If you have a statutory minimum sentence – such as five years minimum for a kilo of cocaine – the court cannot that minimum.  Say your Guidelines were 70-87 months, but the retroactive amendment drops those to 57-71 months.  If your mandatory minimum sentence is 60 months, the judge cannot drop you below 60 months, no matter what the floor of the new Guidelines range might be.

We’re not naysayers here.  Most of the eligible § 3582(c)(2) filers get relief from their judges, and – as an old law partner used to say – you never know what’s under the rock until you turn it over.  The one thing we know for sure: the worst a court can do is deny your § 3582(c)(2) motion.  You can’t get more time for filing it.

We recommend you hold on for a bit until matters are clarified as to when you may file.  We know that no sentence reduction will be effective before November 1, 2015, but no one has yet said how soon you may file.  Be warned: most courts don’t take the motions in the order in which they’re filed.  Instead, they consider the motions in the order in which inmates are likely to be released.  If your “out” date is January 2016, you’re going to get much faster service than the guy who – even with a time cut – won’t hit the streets until next decade.

One final caveat:  Congress could refuse to approve the retroactivity.  Those people can’t even agree on a new highway bill.  The likelihood that Majority Leader Harry “Vote-on-Nothing” Reid would bring the retroactivity amendment to a vote in the Senate is about the same as the chances President Obama will sent Sarah Palin a Christmas card.

Retroactivity is a win.  But there’s many a slip twixt cup and lip.  You only get one chance to do it right.

 

In Bond v. United States, No. 12-158 (June 2, 2014), the Supreme Court sidestepped the key question – the scope of the Congress’s power to enact legislation under the Treaty Clause of the Constitution – in favor a frolic into the principles of federalism. Three justices concurred, arguing that the treaty question should be reached.  But for a number of people facing Federal criminal charges, the federalism aspects should be of great interest.

The Bond facts could easily have come from a dimestore novel. The defendant – who was a trained chemist – tried to poison her husband’s lover with toxic chemicals, which she spread on the mistress’s car, mailbox, and doorknob. Despite her best efforts, the attempted poisoning was a bust – the mistress sustained nothing more than a minor burn on one thumb despite something like 23 attempts. The wife was prosecuted under a federal law which was intended to implement an international convention on chemical weapons. Under the congressional statute, the toxic chemicals the wife used qualified as chemical weapons.

The principal question was whether Congress had exceeded its constitutional powers to implement a treaty.  But Chief Justice Roberts’ majority opinion addressed federalism instead.  Chief Justice Roberts notes that

our constitutional structure leaves local criminal activity primarily to the states.

Fair enough, but the chief justice then goes on to cite United States v. Lopez for the propositions that only the states have broad police powers, while the federal government is one of limited powers. He says “In our federal system, the National Government possesses only limited powers; the States and the people retain the remainder.” Quoting James Madison, Roberts also opines that the United States is a “compound republic” which “keeps power ‘divided between two distinct governments.’ ”

The opinion notes that interpreting the statue at issue to apply to the wife’s conduct “would ‘dramatically intrude[] upon traditional state criminal jurisdiction.’ ” Then, in another significant comment on federalism, the majority opinion holds that

these precedents make clear that is appropriate to refer to basic principles of federalism embodied in the Constitution to resolve ambiguity in a federal statute.

Chief Justice Roberts concludes that Pennsylvania state law was sufficient to prosecute the wife for her poisoning efforts – in fact, the Feds had stepped in only after Pennsylvania prosecutors declined to charge her for the botched poisoning – and that “the global need to prevent chemical warfare does not require the Federal Government to reach into the kitchen cupboard, or to treat a local assault with a chemical irritant as the deployment of a chemical weapon.”

These passages  could quite easily be incorporated into an opinion striking down congressional legislation enacted under the Commerce Clause or other authority, where that legislation impacts areas of the law traditionally falling within the realm of state sovereignty.  Possession of controlled substances, arson, even basic business fraud, all are equally chargeable under state law.  Money laundering is especially susceptible to such analysis, because using the proceeds of any theft offense, however pedestrian, to buy a money order, make a bank deposit, or even buy a car, can offend the money laundering statute.

Central passages from Chief Justice Roberts’ majority opinion in Bond can, as Justice Jackson once put it in Korematsu v. United States, “lie[] around like a loaded weapon” to be used in the next opinion undermining the Federal criminal code.

Words matter, and often have a life of their own beyond their immediate context.

Remember as a child how you were taught that “the policeman is your friend?”  This, of course, was perhaps true … but only until you got to age 12  or so.  Veterans of the Federal criminal system are well acquainted with a lie to match that law enforcement whopper – the venerable old saw that in criminal cases, “people only plead guilty if they’re really in fact guilty.”

Judge Jed Rakoff, a sitting judge on the U.S. District Court in the Southern District of New York, spoke recently at the USC Gould School of Law’s lecture on “Why Innocent People Plead Guilty.”  He laid the leather to that canard.  People plead guilty for all sorts of reasons, the least important of which is whether they’re guilty or not.

You can read a news report on the Judge’s talk, and his interesting proposal for fixing the problem, here.

The following quotation is worth excerpting, however (not like anyone who’s ever been a defendant in Federal court is surprised):

“Plea bargains have led many innocent people to take a deal,” Rakoff said. “People accused of crimes are often offered five years by prosecutors or face 20 to 30 years if they go to trial. … The prosecutor has the information, he has all the chips … and the defense lawyer has very, very little to work with. So it’s a system of prosecutor power and prosecutor discretion. I saw it in real life [as a criminal defense attorney], and I also know it in my work as a judge today.”

The Department of Justice has announced the plans and criteria for the long discussed new clemency initiative.  The basics of the program are set out in two DOJ documents, one a press release and the other a speech given by a Deputy Attorney General

Announcing New Clemency Initiative, Deputy Attorney General James M. Cole Details Broad New Criteria for Applicants

Remarks as Prepared for Delivery by Deputy Attorney General James M. Cole at the Press Conference Announcing the Clemency Initiative

DOJ is adopting six criteria for identifying appropriate prisoners to be considered in the expedited clemency program, which appears to apply only to drug offenders:

•         The prisoner is currently serving a federal sentence in prison and, by operation of law, likely would have received a substantially lower sentence if convicted of the same offense(s) today;

•         The prisoner is a non-violent, low-level offender without significant ties to large scale criminal organizations, gangs or cartels;

•         The prisoner has served at least 10 years of his or her sentence;

•         The prisoner does not have a significant criminal history;

•         The prisoner has  demonstrated good conduct in prison; and

•         The prisoner has no history of violence prior to or during his or her current term of imprisonment.

The proof of the pudding is in the tasting, and we’re not especially optimistic about this.  We remember well how Congress authorized a home detention program for elderly offenders in the Second Chance Act of 2008, and – by the time the BOP adopted an implementing program statement for the program – the criteria had become so narrow that only about 10 prisoners in the entire 200,000-inmate Federal system qualified.

The broad criteria listed above have more holes than a swiss cheese factory.  First, how many prisoners would have a substantially lower sentence if sentenced today?  The crack offenders, maybe, but most of them have had their sentences adjusted already under 18 U.S.C. § 3582(c)(2).  Second, what is a “significant” criminal history?  Is that a Criminal History II?  A III?  Only a Guidelines career offender?  And what is good conduct in prison?  No loss of good time days?  No 200-series or higher incident reports?  No incident reports at all?

Back in 2009, we knew of a 79-year prisoner suffering from cancer and heart disease who would have made the elderly offender pilot detention program but for his “history” of violence.  That history?  An aggravated assault for a barroom brawl in a Pittsburgh bar, circa 1949.  The BOP interpretative rules called this a “history of violence.”

Perhaps this time it’ll be different.  But that’s not how the smart money’s betting.