Vol. 2, No. 26

This week:

4th Circuit Gives Green Light to “Career Offender” Johnson Claims

Dog Bites Man – New York Corrections Officer Union Chief Busted by FBI

Irreconcilable Differences at 7th Circuit over Drug Quantities

Sentencing Commission Proposes Priorities for Next Year

“You Again?” Supreme Court Finds Due Process Right to Judge Recusal

Sentence Reform has ‘Momentum’… or is it the ‘Same Ol’ Same Ol’’?

4TH CIRCUIT GIVES GREEN LIGHT TO “CAREER OFFENDER” JOHNSON CLAIMS

With the deadline for filing Johnson v. United States claims only two weeks away, the 4th Circuit Court of Appeals last week hesitantly joined the majority of circuits that have already held that Johnson’s invalidation of the Armed Career Criminal Act’s “residual clause” applies with equal force to the Guidelines’ “career offender” crime-of-violence definition.

Creadell Hubbard was convicted of bank robbery in 1989 and sentenced as a career offender. Back then, the Guidelines incorporated word for word the crime-of-violence definition set out in 18 U.S.C. § 16(b). Creadell filed and lost his sole 2255 motion in 1997. But because one of the predicate crimes for his “career offender” sentence was a Kentucky 3rd degree burglary, he now arguably falls under the Johnson holding. Thus, Creadell applied to the 4th Circuit for permission under 28 U.S.C. § 2244 to file a second 2255 motion.

The government argued that Johnson does not apply to “career offender” sentences like Creadell’s. The Court disagreed, holding that “all Hubbard need show is that there is ‘a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable’… The government is making a merits argument: its contention that the Johnson rule does not render similar language in a closely related provision unconstitutional is an argument about the proper application of the new rule in Johnson. And at this stage, a merits argument faces an almost insurmountable hurdle: while determining whether to authorize a successive petition ‘may entail a cursory glance at the merits… the focus of the inquiry must always remain on the § 2244(b)(2) standards’.”

The Court punted on the question of whether Johnson applied to the “career offender” guidelines, but did say that “the fact that two federal circuit courts already have concluded that § 16(b) is unconstitutionally vague under Johnson likely is enough to establish that Hubbard has made “a sufficient showing of possible merit to warrant a fuller exploration by the district court.” It is enough that “application of Johnson to § 16(b) as incorporated into the Sentencing Guidelines might render the career-offender residual clause that was applicable at the time Hubbard was sentenced unconstitutional.”

Coincidentally, SCOTUS last week “relisted” two petitions for certiorari which ask whether Johnson applies to Guidelines “career offenders.” A “relist” is uncommon, happening when a certiorari petition will be reconsidered at an upcoming certiorari conference after the Supreme Court did not act on it at a prior conference. What a “relist” implies is harder to figure. Sometimes it means nothing. Sometimes it means Justices are trying to round up enough votes for their position, or they want to study it more, or they want to double-check their decision to hear a case before announcing a grant of certiorari.

In re Creadell Hubbard, Case No. 15-276 (4th Cir. June 8, 2016)

Beckles v. United States, Case No 15-8544

Jones v. United States, Case No. 15-8629

DOG BITES MAN – NEW YORK CORRECTIONS OFFICER UNION CHIEF BUSTED BY FBI

The longtime president of the nation’s largest municipal jail guard union was paid large bribes in exchange for steering $20 million in union money to a hedge fund, according to a criminal complaint filed last week in the Southern District of New York.

Norman Seabrook, president of the 9,000-member New York City Correction Officers’ Benevolent Association, and Murray Huberfeld, the hedge fund’s founder, were arrested by FBI agents on conspiracy and fraud charges last Wednesday.

A smiling Seabrook said as he left the courthouse after the bond hearing: “I feel like a million dollars.”

New York Times, Correction Union Boss, Hedge Fund Founder Face Fraud Charges (June 8, 2016)

IRRECONCILABLE DIFFERENCES

When the jury convicted Christopher Saunders of a drug conspiracy, it found beyond a reasonable doubt he had been involved with over 100 but less than 1,000 grams of heroin. At sentencing, however, the judge found the conspiracy involved 3,690 grams of the white stuff. This kind of sentencing finding – at odds with what the jury found – is something with which many drug defendants are familiar.

Chris appealed, arguing that the jury verdict had found beyond a reasonable doubt that he had been involved with less than 1,000 grams of heroin. Last Friday, the 7th Circuit disagreed.

The 2-1 majority opinion held that “the jury merely found that the government had failed to carry its burden to prove beyond a reasonable doubt that more than 1,000 grams of heroin were involved,” not that the evidence showed beyond a reasonable doubt that the defendants did not have more than a kilo. “Because we believe the form cannot be properly read as a factual finding that less than 1,000 grams were involved,” the 7th said, “the sentencing court was permitted to find a higher drug quantity by a preponderance of the evidence.”

What makes Saunders interesting is Judge Manion’s reasoned dissent. He argues that “the jury in this case found beyond a reasonable doubt that the drug amount was between 100 grams and 1 kilogram. This necessarily implies that the jury found the offense did not involve 3.69 kilograms, but at sentencing, the district court found a 3.69-kilogram amount. These findings are irreconcilable…”

Judge Manion argued that “the two results in this case cannot square: the defendants cannot have (1) possessed less than 1 kilogram and (2) also possessed 3.69 kilograms. By flatly contradicting the jury’s express factual finding, the sentencing judge in this case violated Saunders’ Sixth Amendment rights… And if the jury system is to mean anything, this outcome is a problem.”

United States v. Saunders, Case No. 13-3910                                                 (7th Cir. June 10, 2016)

SENTENCING COMMISSION PROPOSES PRIORITIES FOR NEXT YEAR

The U.S. Sentencing Commission last week issued a notice to identify tentative priorities for the next year, none of which includes retroactivity for any drug or career offender changes.

The notice lists a dozen tentative priorities. Highlights include consideration of (1) how to work with Congress on mandatory minimum sentences, (2) whether to expanding the drug “safety valve” at 18 U.S.C. § 3553(f), (3) elimination of the mandatory “stacking” of penalties under 18 U.S.C. § 924(c), (4) how to promote sentence proportionality, reduce sentencing disparities, and account for the defendant’s role and relevant conduct, and (5) whether to promote prison alternatives, including maybe amending the Guidelines Sentencing Table to consolidate or expand Zones A, B, and C.

The Commission also proposed to consider using the amount of time served, as opposed to the length of the sentence imposed, for purposes of calculating criminal history, considering whether denying relevant conduct should be considered in determining whether a defendant has accepted responsibility for purposes of the 2-level reduction.

People may send their comments to the Commission by July 25, 2016.

U.S. Sentencing Commission, Notice Of Proposed 2017 Priorities And Request For Public Comment (81 FR 37241, June 9, 2016)

“YOU AGAIN?” SUPREME COURT FINDS DUE PROCESS RIGHT TO JUDGE RECUSAL

Back in 1984, defendant Terrance Williams probably had no idea who had written “approved to proceed on the death penalty” on his prosecutor’s detailed memo seeking permission to demand he be executed. The name “Ronald Castille” was not immediately important to the 18-year old defendant’s future, as he faced trial for murder.

Five years ago, Terrance discovered that his co-defendant – who had testified against him – had a secret deal with the prosecutor. After a hearing, his trial court found the Commonwealth’s attorney had committed a Brady violation, calling it “prosecutorial gamesmanship.” The trial judge stayed William’s execution.

The prosecutor, eager after 34 years had passed to execute the now 50-year old Terrance, appealed the stay to the state supreme court. The Chief Justice of that Court happened to be none other than Ronald Castille, the former DA who had approved the death penalty for Terrance many years before. Terrance asked Castille to recuse himself. The Chief denied him.

Last week, the U.S. Supreme Court reversed the decision, creating a new – but limited – constitutional recusal rule: a judge who has had “significant, personal involvement as a prosecutor in a critical decision regarding the defendant’s case” must recuse. The Court held that “under the Due Process Clause there is an impermissible risk of actual bias when a judge earlier had significant, personal involvement as a prosecutor in a critical decision regarding the defendant’s case.” The lapse of time did not matter, either: the Court was unimpressed that “almost thirty years” had passed between Castille’s prosecutorial and judicial decisions.

Justice Kennedy said the relevant inquiry is “whether, as an objective matter, the average judge in his position is ‘likely’ to be neutral, or whether there is an unconstitutional ‘potential for bias’.” The Court said a judge who has previously acted as accuser might not be able to “set aside any personal interest in the outcome.” Or the judge might be “psychologically wedded” to the prior position, or the judge’s personal knowledge of the case might have an “outsized effect” on his or her conclusions.

“No attorney is more integral to the accusatory process,” the Court said, “than a prosecutor who participates in a major adversary decision.” In fact, the Court found, Williams’ Brady prosecutorial misconduct claim represented “a criticism of his former office and, to some extent, of his own leadership and supervision as district attorney.”

One commentator complained that “on the one hand, the Court offered some relief for a plausible instance of judicial bias. On the other hand, the Court’s rule and remedy both seem artificially narrow, particularly given the Court’s own logic. So while immediate effects of the Court’s decision are small, the Court’s decision might eventually come to be seen as an important step in the creation of a new constitutional law of recusal.”

Williams v. Pennsylvania, Case No. 15-5040 (Supreme Court,           June 9, 2016)

Re, Opinion analysis: Another step toward constitutionalizing recusal obligations, SCOTUSBlog (June 9, 2016)

SENTENCE REFORM HAS “MOMENTUM,” OR IS IT THE ‘SAME OL’ SAME OL’?

Ohio State University law professor Doug Berman, who writes a sentencing law blog, complained last week that “someone should be collecting all the big talk we have heard from elected officials and pundits about the ground-breaking criminal justice reforms that are purportedly soon to happen in Congress (and, so far, just never quite seem to happen).”

Berman was talking about comments made last week by Congressman Raul Labrador (R-Idaho), who told a Boise criminal justice reform conference last Monday that momentum is building for major criminal justice reforms. “I believe that we’re going to see some of the greatest reforms in a generation,” Labrador said. “Momentum is building for reform. This Congress alone, I’ve already met with President Obama twice… This is actually one area that I think I can work with the president.”

This is heady stuff, but Berman suggests it’s the “same ol’ same ol’.” He noted that in 2013, Juan Williams lauded a speech by Attorney General Eric Holder, saying that “with the president and a line-up of his usual antagonists behind the same bill, the momentum for sentencing reform could be unstoppable. The result will be one of the biggest surprises of all the years of the Obama presidency…”

Three years later, sentence reform supporters are still talking about “momentum.” Meanwhile, the Senate version of the Sentencing Reform and Corrections Act of 2015, S. 2123, has not yet been scheduled for a floor vote. Politico, a political newspaper, reported last Friday that “in a year of tight budgets and bitter partisanship, Congress appears ready to turn down a chance to save hundreds of millions of dollars through criminal justice reform legislation that has broad bipartisan support. The reform effort… was expected to be one of the few major pieces of legislation to become law this ye
ar. But GOP aides in the House and Senate have been growing increasingly bearish over the past month.”

Senate Majority Whip John Cornyn (R-Texas), one of the bill’s leading backers, threw cold water on its prospects last week, saying he expected the House to move first — not the Senate, as long presumed. “But House leadership aides have given no indication legislation would hit the floor any time soon. And an aide to Senate Majority Leader Mitch McConnell (R-Kentucky) said he had no scheduling information to provide on the bill, which has sharply divided Republicans.”

Last week, The Trace – a website covering gun issues – reported that the NRA has blasted sentencing reform, aligning itself with presumptive Republican nominee Donald Trump, who has said he opposes sentencing reforms, and against presumptive Democrat nominee Hillary Clinton. Clinton has joined many Democrats in opposing mandatory minimums, arguing that they have a disproportionately damaging effect on young black males.

The Senate only has 65 more work days this year, the House 50. A new Congress starts in January, meaning that any bill still pending at the end of the year will disappear, and the process must start over in 2017.

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 we can help you, we’ll tell you that. If what you want to do is futile, we’ll tell you that, too.

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

Would you like a copy of this newsletter in PDF format?  Click here.

 

Vol. 2, No. 25

This week:

11th Circuit Grants Inmate Second-And-Successive Permission For § 924(C) Johnson Claim

A “Holistic” Approach To Drug Conspiracies

Judge Unfair To Justice Department, Appeal Claims

2-Level Reduction Must Be Measured Against Revised Sentence

Inmate Lawsuits A Tough Row To Hoe

Painting With A Broad Brush On Clemency

Requiem For Sentencing Reform?

11th CIRCUIT GRANTS INMATE SECOND-AND-SUCCESSIVE PERMISSION FOR § 924(c) JOHNSON CLAIM

More than any other federal judicial circuit, the 11th Circuit has been tight-fisted in allowing Johnson claims in § 2255 proceedings.

The 11th Circuit stood alone among the circuits in holding that Johnson v. United States was not retroactive (later reversed by the Supreme Court in Welch v. United States). In United States v. Matchett, the 11th Circuit held that Johnson does not apply to “career offender” crimes of violence under the Guidelines, a position so far rejected by every other circuit that has considered it.

But with the June 27th deadline for filing Johnson motions rapidly approaching, the 11th Circuit seems to be softening. Last week, the Court granted leave to an inmate convicted of using a gun during a crime of violence (an 18 U.S.C. § 924(c) violation) to file a second-and-successive § 2255 motion challenging whether his underlying offense – a conspiracy – was a crime of violence.

The Court said it “hasn’t decided if Johnson applies to § 924(c)(3)(B). However, the language in § 924(c) and § 924(e) is very similar… and both require higher sentences once a court decides that an offense is a ‘crime of violence’.” The Circuit said after reviewing the other circuits that “the law is unsettled on whether the rule announced in Johnson invalidates Pinder’s sentence. What’s clear however is that Pinder has made a prima facie showing that his motion ‘contain[s… a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court.’ Whether that new rule of constitutional law invalidates Pinder’s sentence must be decided in the first instance by the District Court.”

In re Ricardo Pinder, Jr., Case No. 16-12084-J (11th Cir. June 1, 2016)

A “HOLISTIC” APPROACH TO DRUG CONSPIRACIES

The government had a very good case against Jim Loveland for possession of methamphetamine with intent to distribute. The only problem the government faced was that it had not charged Jim with possession with intent. Instead, the government chose to ride its old reliable horse, charging him with conspiracy.

American law excels at conspiracy. Most countries do not even recognize the law of conspiracy, except for a limited number of political offenses (don’t plot against the king). Even England does not pursue conspiracy with the relish of American prosecutors. One commentator called it “perhaps the most amorphous area in Anglo-American criminal law. Its terms are vaguer and more elastic than any conception of conspiracy to be found in the continental European codes or their imitators.”

For Jim, the fact that he was charged with conspiracy instead of what he had really done –possession with intent – didn’t help much. A jury convicted him anyway. But the charging error became important when the 9th Circuit last week held that “despite the substantial evidence of Loveland’s possession for purposes of sale, there was insufficient evidence for a jury to conclude that he tacitly or explicitly made the requisite agreement.”

In its decision, the Court provided a useful analysis of “factors that might aid in the ‘holistic’ evaluation of” whether a conspiracy exists instead of a mere “buyer-seller” relationship, including (1) prolonged cooperation between the parties; (2) use of coded communications; (3) quantity of drugs bought; (4) changes in the quantities during the relationship; (4) frequency of sales; (5) “fronting” drugs or supplying them on consignment; (6) lengthy distances traveled to purchase drugs; and (7) frequency of communications.

In fact, the Court said, even proof that the supplier knew that the buyer was reselling the drugs did not establish that there was an agreement between supplier and buyer that the buyer would resell. “Though the Sanchez group might assume that Loveland was reselling the methamphetamine that he bought from them,” the Court said, “he could have flushed it down the toilet for all they cared, since they already had his money. As for future sales, they had no hold on him. Loveland was free to shop elsewhere. Their stake in his enterprise was no different from a big-box store’s stake in a convenience store’s financial success from the resale of individually packaged peanuts purchased by the carton from the big-box store. The big-box store ordinarily has no agreement with the convenience store owner regarding his resales.”

United States v. Loveland, Case No. 13-30162 (9th Cir. June 3, 2016)

JUDGE UNFAIR TO JUSTICE DEPARTMENT, APPEAL CLAIMS

A few weeks ago, we reported that Southern District of Texas Judge Andrew S. Hanen held that government lawyers repeatedly lied to him in an important civil case, and ordered the Attorney General to provide ethics training to DOJ lawyers. The irate jurist also directed the AG to “ensure that the DOJ Office of Professional Responsibility effectively polices the conduct of the Justice Department lawyers and appropriately disciplines those whose actions fall below the standards that the American people rightfully expect.”

Last Tuesday, DOJ asked the judge to put the order on hold, and promised an immediate appeal to the 5th Circuit. Saying it “emphatically disagreed” with Judge Hanen’s May 19th order, the Justice Department argued the ruling not only was wrong but that it was “made worse by (and perhaps explained by) the absence of the required fair process for the department and its attorneys.” It added that it would use whatever appeal process it needed to try to get the order nullified.

Judge Hanen has set a hearing on the DOJ’s motion to stay the order for June 7th.

Lyle Denniston, U.S. appeals sweeping ethics ruling by Texas judge, SCOTUSblog (May. 31, 2016)

2-LEVEL REDUCTION MUST BE MEASURED AGAINST REVISED SENTENCE

Leroy Derry was doing 392 months for drugs and gang-related mayhem when the Sentencing Commission adopted the 2011 2-level reduction to the drug guidelines. Leroy got his sentence cut to 293 months.

Leroy’s original sentencing was complex. His crack cocaine offense gave him an adjusted level of 38, while his conspiracy to murder and gun possession charges calculated out at 32. The 2011 reduction cut the crack cocaine base level to 32, matching his other offense groupings.

When the 2015 2-level reduction went into effect, Leroy applied again. This time, the district court turned him down on the grounds that his adjusted guideline range from 2011 did not decrease. Leroy argued that the original guideline range used at his sentencing did decrease, and that he should get another sentence reduction.

Last week, the 2nd Circuit turned him down. The Court held that a defendant should be eligible for a reduction only if an amendment affects the his latest adjusted guideline range. “When a defendant is serving a sentence based on a guideline range that has not been further reduced by an amendment, he is not disadvantaged because the marginal effect of the since–rejected guideline range on his sentence is non–existent,” the Court said. “A defendant who has received a sentence modification is serving a term of imprisonment that is ‘based on’ the guideline range applied at his most recent sentence modification. Here, Derry’s sentence is ‘based on’ the guideline range of 235 to 293 months that was applied at his 2011 sentence modification, and that range has not ‘subsequently been lowered by’ Amendment 782.”

United States v. Derry, Case No. 15‐1829 (2nd Cir. June 1, 2016)

INMATE SUIT A TOUGH ROW TO HOE

When two guards at a Baltimore jail beat up an inmate they were moving to solitary, the prisoner filed a lawsuit in federal court against the guards, two supervisors and the state government, seeking damages for his injuries. One guard was found liable and was ordered to pay the inmate $50,000, but a judge dismissed the case against the supervisors and the government.

The case against the second guard is now before the U.S. Supreme Court, and is likely to get DIG’d (“certiorari dismissed as improvidently granted”). The case, like thousands of others filed by inmates each year, hinges on a Clinton-era piece of criminal-justice legislation known as the Prison Litigation Reform Act.

Prisoners’ advocates have argued for years that the PLRA makes it nearly impossible for inmates to get a fair hearing in court, and that it has crippled the federal judiciary’s ability to act as a watchdog over prison conditions. Blake’s Supreme Court case, which is set to be decided in the next few weeks, shows the PLRA’s effect: at issue is not the role the second guard may have played in the assault (he says he tried to de-escalate the situation) but, rather, whether the case should be dismissed because Blake did not exhaust his administrative remedies.

The PLRA, passed by Congress in 1996, was designed to reduce the number of lawsuits brought by inmates against prisons. In 1995, Senator Orrin Hatch (R-Utah) argued the PLRA would reduce the number of inmate lawsuits, “weed[ing] out the meritless chaff.” The law requires prisoners who believe their rights have been violated to first submit a grievance form to their prison’s administration, and, if that grievance is rejected, to appeal the decision within their state’s corrections system as high as the process allows. Only after those steps have been taken can prisoners file suit in an actual court. This type of provision is known as an “exhaustion requirement.”

In a New Yorker magazine article last week, Rachel Poser argued that “functioning properly, a grievance system can provide corrections officials with early warnings of staff misconduct, deficient medical care, and unsanitary or dangerous conditions. But in practice, critics say, these systems create a tangle of administrative procedures that discourage or disqualify inmates from filing lawsuits. Before 1996, courts applied an exhaustion requirement only if a state’s grievance process met certain high standards of fairness outlined by the Justice Department. The PLRA eliminated those standards. There are currently no regulations governing prison grievance processes, and, in the two decades since the law’s passage, many prisons’ procedures have become so onerous and convoluted—“Kafkaesque,” in the words of one federal judge—that inmates whose rights have been violated are watching their cases slip through the cracks.”

Poser, Why It’s Nearly Impossible For Prisoners To Sue Prisons, New Yorker (May 30, 2016)

PAINTING WITH A BROAD BRUSH ON CLEMENCY

Last Friday, President Obama commuted the sentences of 42 more drug defendants. He has now commuted 348 people, more than the all the presidents since Gerald Ford combined.

Nevertheless, some experts predict Obama’s reform efforts will fall short of what his administration had hoped to achieve. The administration initially believed that as many as 10,000 prisoners would be eligible under the 2014 guidelines, but that number has now fallen to under 2,000. And even that number may not be reached. “The real question for President Obama is whether he grants commutations to all the people who meet his stated criteria,” New York University professor Rachel Barkow said last week. “And he’s short of that number right now, which should be more like 1,500 grants.”

Concerned that Obama’s term will end with thousands of pending clemency petitions not acted on, three authors last week called on the President to issue blanket clemency orders affecting inmates in broad offense categories.

Arguing that the President could “employ a clemency process with a much more substantial impact,” the commentators – a retired federal judge, a law professor and the director of a sentence reform group – suggested Obama “could apply clemency in categories of offenses.”  It’s happened before. In 1974, President Ford issued amnesty to convicted draft resisters, conditional on their agreeing to perform two years of community service. Three years later, President Jimmy Carter pardoned all draft resisters, whether or not they had been convicted.

The authors suggest that “several offense categories” are good candidates for commutation. “The most obvious one applies to the approximate 5,000 prisoners serving crack cocaine terms that the Congress has concluded are disproportionate and unfair, but were sentenced before the Fair Sentencing Act. President Obama could grant clemency in these cases across the board, essentially reducing their terms to the amount of prison time they would have received if sentenced today.”

Another category could be cases in which § 924(c) offenses for using or carrying of a firearm during a crime were “stacked,” so that carrying a gun on two drug deals on two successive days netted a defendant an extra 30 years. A provision in the Sentencing Reform and Corrections Act pending in Congress changes this provision of the law, but it may not make the change retroactive.

Finally, the authors argue, using blanket clemency on the “three strikes” provision that requires mandatory life sentences for a third serious drug conviction, could cut the sentence to 20 years, which is what Obama has done in some individual “three strikes” cases.

The authors admit that sentence commutations are no substitute for the sentencing reform. But, they say, sentencing reform and commutation should go hand in hand to rectify past mistakes and to move forward in a more compassionate direction.

Jonsson, As drug ‘mule’ walks free, Obama’s commutation legacy takes shape, Christian Science Monitor (June 4, 2016)

Mauer, Time for a broad approach to clemency, The Hill (June 3, 2016)

A REQUIEM FOR SENTENCING REFORM?

Legislatively, nothing happened to advance the Sentencing Reform and Corrections Act in Congress last week. And with the time available to pass the measure in the House and Senate dwindling rapidly, optimism for sentencing reform is draining away.

An article published last week by the Criminal Justice Legal Foundation – an opponent of sentence reform – was entitled “a requiem for sentencing reform.” The piece gloated that the defeat can be blamed on Wendell Callahan. When Callahan “was given early release courtesy of a less ambitious 2010 version of sentencing reform and then, four months ago. sliced up two little girls and their mother,” CJLF said, “the current legislation suffered what may have been its mortal blow. Sentencing reformers had no answer. Mostly the response was to refuse to discuss it. The best a flummoxed Senate staffer could squeak out was, hey, look, we can’t catch everything.”

A Huffington Post report conceded that sentence reform is in trouble, saying “Senators pushing for bipartisan criminal justice reform are running out of time to pass the legislation through both chambers before the election year’s long summer recess begins. If lawmakers don’t find a way to move the bill before they leave in July, the chances of it passing this year dwindle significantly.”

Senate Majority Whip John Cornyn (R-Texas), who helped write the Senate bill (S. 2123), said last Tuesday that he and Senate Judiciary Chairman Chuck Grassley (R-Iowa) are waiting for the House to move first on the House version of the measure. Cornyn wouldn’t say whether the two lawmakers had talked to Senate Majority Leader Mitch McConnell (R-Kentucky), who dictates what comes to the floor, about the latest version of the bill. That’s not a good sign.

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 we can help you, we’ll tell you that. If what you want to do is futile, we’ll tell you that, too.

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

Would you like a copy of this newsletter in PDF format?  Click here.

Vol. 2, No. 24

This week:

Say What You Mean

Better Late Than Never

Bite Me

Tipping Allowed

Consequences

Bipartisan Drum Beating  For Sentencing Reform

 

SAY WHAT YOU MEAN

Many of our readers are focused on personal legal problems, not the woes faced by big banks. Nevertheless, it’s pretty well known that over the past few years, the government has chased after bankers, accusing them of fraud in the 2008 mortgage crisis.

Most banks settled with the government, paying billions of dollars in fines. But when Bank of America was accused of wire and mail fraud, it did not roll over. Instead, BOA lost at trial and paid a $1.2 billion fine. Last week, the 2nd Circuit reversed, handing down a decision that could have a big impact on federal criminal fraud.

The civil lawsuit accused the bank of signing contracts with federal mortgage agencies promising to sell them only high-quality loans. There was no evidence the bank intended to break its promise when it signed the contract, but later, it sent the agencies loans the bank knew were stinkers, far from what had been promised in the contract. That, the government said, was fraud.

The 2nd Circuit reversed. The Court said that where the allegedly fraudulent statements are the terms in a contract, the government must prove the defendant intended to defraud the victim at the time the contract was signed, not later when the contract was violated (even if the violation was intentional). Merely breaching a contract, without more, is not fraud.

The district court had previously said it would be hyper-technical to make the government prove that BOA intended fraud when the contract was signed – instead of when the breach occurred. The Court of Appeals disagreed: “Far from being “arcane limitations, these principles fall squarely within the core meaning of common-law fraud that neither the federal statutes nor prior decisions disrupted.”

If applied in white-collar cases, this holding could have a substantial impact where the government’s fraud showing relied only on proof that a defendant had willfully violated a previously-signed contract.

United States ex rel. O’Donnell v. Countrywide Home Loans, Inc.,
Case No. 15-496-cv(L) (2nd Circuit, May 23, 2016).

BETTER LATE THAN NEVER

Jermaine Hickman did his time in plain sight every day for six years, yet he somehow became a lost soul to the BOP. That is, until one day in November 2013, when a corrections officer at FMC Rochester walked up and casually said, “Jermaine, you’re going home.”

“Don’t be playing with me,” replied Hickman, who thought he had another six months. The guard wasn’t playing: a few hours later Hickman walked free. In what appears to be one of the most flagrant cases of illegal incarceration in recent federal history, the BOP held Hickman for 13 months beyond his mandatory release date. He later sued, and – only after government lawyers tried to blame Hickman for not having filed a BP-9 (BOP administrative remedy form) to complain to the BOP about its blunder – Uncle Sam settled with him for $175,000.

Publicity over Hickman’s case led the DOJ inspector general’s office to examine why and how often such mistakes occur. In a report released last week, the IG said that from 2009 to 2014, the BOP kept more than 4,300 federal inmates locked up beyond their scheduled release dates, some of them for an extra year or more. The BOP itself admitted to only 157 errors. Unsurprisingly, 152 were late releases and only five were early releases. Three of the late releases and three of the early releases involved an error resulting in more than a year of over- or under-served time by the inmate.

The New York Times said last Tuesday that the findings “are a potential embarrassment for the BOP at a time when the Obama administration has assailed what it says are unfair and unduly harsh sentences for many inmates, particularly minorities and nonviolent offenders.”

Most of the cases led to inmates being held for an additional month or so, but 61 were held for more than that, and three inmates were kept for more than a year beyond their scheduled release.

Dept. of Justice Office of Inspector General, Review of the
Federal Bureau of Prisons’ Untimely Releases of Inmates                            (May 24, 2016)

BITE ME

We all know guys like Bobby Nerius. They just can’t go along with the program. In Bobby’s case, he was doing a 16-year stretch at a USP – bad enough – but he had to go and make it worse. In one case, he broke a sprinkler head in his cell, flooding the place. In a more celebrated incident, he bit the end off a correctional officer’s finger.

The BOP had him charged with resisting correctional officers and damaging property. He pled guilty to both counts, and was sentenced as a career offender, with some extra points added because biting the finger was considered a crime of violence. At sentencing, Bobby acknowledged that he had faced many disciplinary incidents in prison but, he said, since being charged with the sprinkler and the finger, he had remained “completely incident free at a very high level security institution with very strict conditions.” He was a changed man.

The district court admired his rehabilitation, but noted it followed a “long history with the criminal justice system.” The court rewarded him with a bottom-of-the-Guidelines sentence of 37-46 months.

While Bobby’s appeal was pending, Johnson v. United States was handed down. The Court of Appeals sent the case back because, after Johnson, resisting a corrections officer by finger biting was no longer considered a crime of violence. This time, Bobby’s Guidelines range was 30-37 months. At sentencing, the district court discussed Nerius’s criminal and disciplinary history – including his recent record of good behavior – and found a sentence at the high end of the new guideline range to be reasonable. Bobby got 36 months.

Bobby felt like he had done a lot of work to end up saving one lousy month. He appealed again, this time arguing that his revised sentence raised a presumption of judicial vindictiveness and thereby violated due process. He reasoned that at his initial sentencing, he was given the bottom of the Guideline range, but at his resentencing, he was sentenced near the top of the revised range. There just had to be vindictiveness afoot.

Last week, the 3rd Circuit disagreed with Bobby. The appellate court explained that under North Carolina v. Pearce, 395 U.S. 711 (1969), when a defendant receives a higher sentence after having getting the old one overturned on appeal, it is presumed that the district judge is being vindictive because he or she had been overruled. This presumption of vindictiveness “may be overcome only by objective information in the record justifying the increased sentence.”

The 3rd Circuit explained, however, that the Pearce presumption does not apply when the revised sentence “is less than that originally imposed and there is no evidence of vindictiveness on the part of the sentencing court.” If the presumption does not apply, an appellant must provide “proof of actual vindictiveness” by the sentencing judge at resentencing, a task that’s well nigh impossible.

Under Pearce, the Court of Appeals uses the actual sentence imposed following the appeal as a litmus test: if it is higher than the prior sentence, vindictiveness is presumed. If it is lower, vindictiveness is not presumed. Pearce does not require “the resentencing process to mirror the original proceeding,” that is, for Pearce purposes, the district court need not impose a sentence at the bottom of the revised Guidelines range simply because its original sentence was at the bottom of the then-applicable range.

What’s more, the Court said, Bobby did not show any evidence of actual vindictiveness. The district court explained that Bobby’s criminal history and poor prison disciplinary record – dozens of incident reports between 2005 and 2013 – seriously discounted his two-year record of good behavior.

United States v. Nerius, Case No. 15-3688 (3rd Cir. May 25, 2016)

TIPPING ALLOWED

Norman Shaw ran into a perfect storm of bad luck and even worse judgment. First, he was locked up at a joint that ran an inmate “tip line.” Second, he was carrying around some balls of heroin, and he was not the only inmate to know it. Third, one of the inmates who knew it apparently did not much like Norm, and dropped the dime on him over the tip line.

You can see where this is going. Norm got busted, and was charged with another felony on top of the bank robbery charge that had landed him in federal prison to begin with. And that’s when Norm made his final mistake. He decided to represent himself.

At trial, Norm claimed that when the COs searched him, they violated his 4th Amendment rights. Also, he demanded know who turned him in, and he wanted the right to cross-examine the tipster at trial. The district court turned him down on both arguments.

Last week, the 7th Circuit upheld Norm’s conviction. The Court said that “as a prisoner, Shaw has highly curtailed 4th Amendment protection… A right of privacy in traditional 4th Amendment terms is fundamentally incompatible with the close and continual surveillance of inmates and their cells required to ensure institutional security and internal order.” The Court noted that “under our precedent, Shaw could only claim that the prison personnel violated his constitutional rights if there were a search that somehow invaded his body.” Norm’s search did not do so.

As for Norm’s demand that he get the identity of the anonymous tipster, the Court said the “government has a limited privilege to shield the identity of a confidential informant,” and that privilege is stronger where the person is a “mere tipster” who – as in this case – isn’t part of the crime. In a prison setting, the Court said, the privilege is stronger still, because “without the protection of anonymity, prisoners may never provide tips.”

The privilege is only defeated if a defendant can show the tipster’s identity “is relevant and helpful to his defense or essential to a “fair determination of a cause.” Here, the Court said, Shaw had no “meaningful counter-argument” that he needed the informant’s identity.

United States v. Shaw, Case No. 14-2881 (7th Cir. May 27, 2016)

CONSEQUENCES

An Eastern District of New York judge spared defendant Chevelle Nesbeth from prison last week, reasoning that the “collateral consequences” she will face for her drug smuggling felony was sufficient punishment.

Senior Judge Frederic Block noted that there are “nearly 50,000 federal and state statutes and regulations that impose penalties, disabilities, or disadvantages on convicted felons.” In this case, Judge Block wrote that the various side effects of Chevelle’s conviction – such as inability to fulfill her goal of being a school principal – suggested to him that she “has been sufficiently punished, and that jail is not necessary to render a punishment that is sufficient but not greater than necessary to meet the ends of sentencing.”

Chevelle’s Guidelines called for 33-41 months. The judge’s 41-page decision justifying the sentence noted some circuits were stricter about not considering collateral consequences of conviction at sentencing, but the Judge said “happily, I am a creature of the Second Circuit, and its embrace of the impact and significance of the collateral consequences facing a convicted felon as bearing upon a just punishment is the enlightened view.” After listing all of the likely consequences flowing from Chevelle’s conviction, the Court decided that probation punished her enough.

Judge Block said it was for federal and state lawmakers “to determine whether the plethora of post-sentence punishments imposed upon felons is truly warranted, and to take a hard look at whether they do the country more harm than good.” As for the Judge’s courtroom, he observed that defense counsel has an “overarching duty to advocate the defendant’s cause,” and therefore, defense “counsel has … a professional responsibility to timely inform both the court, as well as his client, of the significant collateral consequences facing the defendant as a result of a conviction.”

United States v. Nesbeth, Case No. 1:15-cr-0018                               (E.D.N.Y. May 25, 2016)

BIPARTISAN DRUM BEATING FOR SENTENCING REFORM

Two unlikely bedfellows – the president of the conservative action organization FreedomWorks and the director of criminal justice policy at the left-wing Center for American Progress – teamed up last Tuesday to urge the Senate to vote on the Sentencing Reform and Corrections Act (S. 2123).  Writing in the Congressional newspaper The Hill, the authors complained that since sentencing reform was introduced last October, “key stakeholders and members of Congress have been discussing and negotiating revisions to this legislation,” but it still has not come up for a vote.

On April 28, lawmakers released a number of revisions to the Act, most of which stripped retroactivity out of the measure and was aimed at increasing support for the bill. Since then, the National District Attorneys Association has thrown its support behind the revised Act, saying it now “strikes the appropriate balance.” Most recently, the International Association of Chiefs of Police and the Major County Sheriffs’ Association endorsed the bill.

Last Tuesday, the Washington Examiner newspaper joined the fray, arguing that conservatives should not fear that sentencing reform will make the illegal immigration problem worse. The paper said, “Conservatives see the world the way it is, following facts and evidence to make sound policy decisions. In this case, the facts and evidence point to why criminal justice reform will succeed at the federal level. The federal government is overdue in taking a step forward for a system that is gravely lagging behind the states and the success they have seen with right-sizing their criminal justice system.”

The future of the bill, however, is far from clear. So far, Senate Majority Leader Mitch McConnell (R-Kentucky) has not scheduled the measure for a vote, and time to do so is rapidly running out. Republican presidential candidate Donald Trump has not staked out a clear position on sentencing, but so far he has taken a strident anti-crime stance and has deplored the early release of many federal prisoners serving terms for drug crimes.

Two weeks ago, Sen. Tom Cotton (R-Arkansas) – a foe of sentence reform – argued that America’s problem is that not enough people are in prison. His assertion, called “banal” and “fatuous” by the conservative magazine Federalist, engendered several responses last week. One from a former Tennessee Assistant District Attorney was an open letter to Cotton, in which she said “you stated last week that the US has an “under-incarceration” problem, and … that many serious, violent offenders are not being caught and their crimes are not being solved. You are correct about this. And you can thank the War on Drugs. Since the War on Drugs began, clearance rates for serious, violent crimes have declined.”

The Federalist article said “Congress would be better able to protect the public from violent, dangerous crime if Cotton would stop defending 30-year-old federal sentencing schemes written by Tip O’Neill and George Mitchell. The chief problem with those schemes is not that they produced ‘mass incarceration’ or ‘under-incarceration,’ but rather, they have resulted in misincarceration. They do not allow federal courts to impose more serious punishments for more serious offenders and lesser penalties for less culpable offenders. Cotton might think one-size-fits-all is the right approach for government-mandated wages, but the consequences for criminal justice are disastrous.”

The Senate version of the Sentencing Reform and Corrections Act (S. 2123) has 34 cosponsors. The House version (H.R. 3713) has 70 cosponsors.

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 we can help you, we’ll tell you that. If what you want to do is futile, we’ll tell you that, too.

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

Would you like a copy of this newsletter in PDF format?  Click here.

Vol. 2, No. 23

This week:

4th Circuit Holds N.C. Common-Law Robbery To Not Be Not “Violent Crime” Under ACCA

Judge Says Government Lawyers Need Ethics Lessons

Clemency Petitions Referred To DOJ Now Top 1000

The Good Wife

Lies, Damn Lies, And Statistics

SCOTUS Decision Denying Speedy Sentencing Hints
At Expanded Sentence Due Process

Is Sentence Reform “Dead In This Year’s Congress?”

4th CIRCUIT HOLDS N.C. COMMON-LAW ROBBERY IS NOT A  “VIOLENT CRIME” UNDER THE ACCA

Ezekiel Gardner was a guy who liked to go with what worked. North Carolina common-law robbery was something that worked for him, so he practiced it repeatedly. We don’t know how many times he tried it, but we know he got caught for it three times, because that’s how many convictions he had.

Eventually, the police caught him with a handgun, and he was found to be a felon-in-possession. Ezekiel’s three prior common-law robbery convictions made him eligible for a minimum 15 years under the Armed Career Criminal Act.

But after Johnson v. United States, handed down last summer, the robberies had to fall under the “force clause” in order to count as violent felonies. Last Wednesday, the 4th Circuit Court of Appeals held they did not.

The Court said “to qualify as a categorical match with the force clause, North Carolina common law robbery necessarily must have as an element the “use, attempted use, or threatened use of physical force against the person of another.” Instead, “physical force” within the context of the ACCA means “violent force — that is, force capable of causing physical pain or injury to another person.” The Court focuses on “the minimum conduct necessary for a violation” under state law, which is conduct to which there is a “realistic probability, not a theoretical possibility,” that a state would apply the law.

For common-law robbery, North Carolina courts have said that “although actual force implies personal violence, the degree of force used is immaterial, so long as it is sufficient to compel the victim to part with his property.” Therefore, even the slightest contact can constitute the “violence” necessary for a common law robbery conviction under North Carolina law.

Because North Carolina “force” does not necessarily include the use, attempted use, or threatened use of “force capable of causing physical pain or injury to another person,” as required by the force clause of the ACCA, the 4th Circuit held that North Carolina common law robbery is not a “violent felony” under the ACCA.

In an interesting footnote, the Court said that because North Carolina common law robbery committed by means of “violence” does not qualify as an ACCA violent crime, it did not even reach the question whether robbery committed by means of “fear” – the other means of committing common-law robbery – would qualify under the “force clause.”

United States v. Gardner, Case No.14-4533 (4th Cir. May 18, 2016)

JUDGE SAYS GOVERNMENT LAWYERS NEED ETHICS LESSONS

Defendants all figure out sooner or later that lying to a federal judge is a bad idea. At best, the defendant loses a two-to-three point Guidelines reduction for acceptance of responsibility, and may get a two-level increase for obstruction of justice. Five Guidelines levels are pretty serious business, increasing a sentence by five years for a defendant starting at 97 months, for example.

But what happens if you happen to be a DOJ lawyer lying to the court? Can’t happen, you say? That was not the experience of a south Texas federal court last week.

The case involved a number of states suing the federal government over the President’s waiver of immigration enforcement. Texas, the lead plaintiff, got a preliminary injunction in the matter, which is now in front of the Supreme Court. However, it seems while the case was in front of District Judge Andrew S. Hanen, DOJ lawyers –representing the Department of Homeland Security – repeatedly misled the court and plaintiffs that the Feds had not started the immigration processing that the states were trying to stop, so there was no need for an injunction. The representations were not simply false.  They were outright lies.

Last Thursday, the Court demanded action be taken. The Judge revoked the right of the DOJ attorneys (all from Washington, D.C.) to appear in front of him. The Court said the duties of “a Government lawyer, and in fact of any lawyer, are threefold: (1) tell the truth; (2) do not mislead the Court; and (3) do not allow the Court to be misled. The Government’s lawyers failed on all three fronts. The actions of the DHS should have been brought to the attention of the opposing counsel and the Court as early as December 19, 2014. The failure of counsel to do that constituted more than mere inadvertent omissions—it was intentionally deceptive. There is no de minimis rule that applies to a lawyer’s ethical obligation to tell the truth.”

The Court ordered the Attorney General to adopt procedures to train DOJ lawyers in ethics. Complaining that DOJ’s Office of Professional Responsibility is “not effective,” the Court also directed the AG to “ensure that the Office of Professional Responsibility effectively polices the conduct of the Justice Department lawyers and appropriately disciplines those whose actions fall below the standards that the American people rightfully expect.”

State of Texas v. United States, Case No. B-14-254                                       (S.D. Texas, May 19, 2016)

CLEMENCY PETITIONS REFERRED TO DOJ NOW TOP 1000

Clemency Project 2014, the group of volunteer attorneys who have screened commutation petitions for the Obama administration, last week passed the benchmark of 1,000 clemency petitions submitted to the Office of the Pardon Attorney.

Of the 1,000 submitted petitions, 120 have been acted upon by the DOJ Office of the Pardon Attorney. Cynthia W. Roseberry, project manager for Clemency Project 2014, said, “These worthy petitions have undergone a careful, detailed review by top-notch lawyers, and each has been determined to appear to meet the criteria laid out by the Department of Justice. Cases are now moving through the review process at an unprecedented rate. I look forward to even more grants during the remainder of President Obama’s term of office and have confidence in the president’s declaration in late 2015 that there is no ‘ceiling’ on the number of commutations he will grant.”

Clemency Project 2014 has recruited nearly 4,000 volunteer lawyers from diverse practice backgrounds and completed screening of over 30,000 of the more than 36,000 federal prisoners who have requested volunteer assistance. The overwhelming majority of those requests were by applicants who did not meet the DOJ criteria announced in 2014.

Clemency Project 2014 surpasses 1,000 clemency petitions,
ABA News (May 16, 2016)

THE GOOD WIFE

Fawn Tadios was a good wife… just not a prudent one. Professionally, she was the CEO of a federally funded healthcare clinic on the Chippewa Cree tribe’s Rocky Boy Reservation in Montana. Her husband, Tribal Chairman Raymond Parker, was doing time at FPC Yankton. Naturally, she tried to visit him often.

The BOP encourages family contact. It’s just when the family comes to visit, it should do so on its own credit cards. Fawn took a series of trips to Yankton, funding her treks with her tribal credit card and Clinic travel advances to the tune of over $50,000. Rather than claim annual leave for her absences, Fawn tried to cover up the personal nature of her trips. In one case, she spent two hours of a five-day trip visiting a tribal health clinic. To make matters worse, Fawn submitted timesheets listing eight hours of “travel” on most of the days she spent in Yankton with her husband.

She was convicted of misusing federal funds, and sentenced to a year and a day. Although Fawn was a salaried employee, at sentencing, the court calculated the hourly worth of her pay, and multiplied that figure by the number of hours she had fudged on her time sheets to come up with a loss figure. She claimed that because she was not an hourly employee, it did not matter how many hours she worked or not: her pay remained the same.

Last week, the 9th Circuit disagreed with Fawn. The Court said that “public accountability is the notion that ‘governmental employees should not be paid for time not worked due to the need to be accountable to the taxpayers for expenditure of public funds’.” Under this principle, even exempt public employees must honestly account for time away from work. Therefore, the Court said, “it was not error for the district court to include the estimated value of the time that Tadios should have reported as annual leave in calculating the total losses she inflicted on the Tribe. By failing to claim or deduct annual leave for the dates when she visited her husband and told her board she was traveling for work, Tadios harmed the Clinic twice over: first, by getting the Clinic to pay for travel expenses it had no obligation to cover, and again by getting the Clinic to pay her salary for time she was supposed to be working but was not.”

United States v. Tadios, Case No. 14-30231 (9th Cir. May 18, 2016)

LIES, DAMN LIES AND STATISTICS

Policymakers concerned about the vast U.S. prison system have trumpeted that they have made progress over the past several years, as the incarcerated population has declined from its peak in 2009. Unsurprisingly, they have statistics to back up their claims.

Yet those statistics are misleading, according to John Pfaff, a legal scholar at Fordham University. Pfaff pointed out last Tuesday that even as fewer people are behind bars, the number going to prison nationally changed little during that time, except for California. In that state, the Supreme Court ordered major reforms to the state’s overcrowded system in 2011.

The fact is that more people are being sent to prison this year than in 2010. However, the total prison population has declined because prisoners are serving shorter terms, partly as a result of lawmakers’ efforts to reduce minimum sentences. The reduced sentences may welcome by inmates, but incarceration is affecting more lives than ever.

The myth that fewer people are going to prison,
Washington Post (May 18, 2016)

SCOTUS DECISION DENYING SPEEDY SENTENCING HINTS AT EXPANDED SENTENCE DUE PROCESS

The U.S. Supreme Court ruled last week that the 6th Amendment’s guarantee of a right to a speedy trial does not extend to a right to a speedy sentencing. The decision in Betterman v. Montana was unremarkable, but it did suggest the existence of a “more pliable standard” relating to due process rights: “After conviction, a defendant’s due process right to liberty, while diminished, is still present,” the Court said. “He retains an interest in a sentencing proceeding that is fundamentally fair.”

Ohio State University law professor Doug Berman suggested in his blog last week that “in the wake of Apprendi and Blakely and Booker (and even in light of the advisory Booker remedy), I believe that the 6th Amendment’s jury trial right must create a constitutional limit of some sort on judicially imposed major sentence enhancements that are based on so-called acquitted conduct… As Betterman helps to highlight, even if and when a defendant cannot prevail on a 6th Amendment claim at sentencing, he can always fall back on a 5th/14th Amendment Due Process claim. And… if Betterman suggests that a significant majority of current SCOTUS Justices are serious about a possible due process right (or “interest”) “in a sentencing proceeding that is fundamentally fair,” perhaps it will be possible to get them to take up on due process grounds a challenge to a major judge-imposed sentence enhancement based on acquitted conduct or even uncharged conduct.”

Betterman v. Montana, No. 14-1457 (Supreme Court, May 19, 2016)

IS SENTENCE REFORM “DEAD IN THIS YEAR’S CONGRESS?”

Sen. Tom Cotton (R-Arkansas) last Thursday blasted his colleagues’ efforts to pass the Sentencing Reform and Corrections Act of 2015, complaining the United States is actually suffering from an “under-incarceration problem.”

Cotton has been an outspoken critic of S. 2123 – that would reduce mandatory minimum sentences for drug and firearms offenses – denounced what he called “baseless” arguments that there are too many offenders locked up for relatively small crimes, that incarceration is too costly, and that “we should show more empathy toward those caught up in the criminal-justice system.”

“The claim that too many criminals are being jailed, that there is over-incarceration, ignores an unfortunate fact,” Cotton said. “For the vast majority of crimes, a perpetrator is never identified or arrested, let alone prosecuted, convicted, and jailed. Law enforcement is able to arrest or identify a likely perpetrator for only 19 percent of property crimes and 47 percent of violent crimes. If anything, we have an under-incarceration problem.”

Cotton said he believes S. 2123 “is dead in this year’s Congress. And it should remain so if future versions allow for the release of violent felons from prison,” he went on to say. “I will, though, happily work with my colleagues on true criminal-justice reform — to ensure prisons aren’t anarchic jungles that endanger both inmates and corrections officers, to promote rehabilitation and reintegration for those who seek it, and to stop the over-criminalization of private conduct under federal law. But I will continue to oppose any effort to give leniency to dangerous felons who prey on our communities.”

Other commentators are suggesting that Cotton is right that no significant sentencing reform bill get through Congress before the 2016 election. Despite efforts to tweak S. 2123 to appease some conservative critics, the most vocal opponents of the bill, Sen. Cotton and Jeff Sessions (R-Alabama) remain vocal in their opposition. In addition, Sen. Marco Rubio (R-Florida) has recently expressed opposition to S. 2123. Perhaps more critically, Prof. Berman noted last week, “I have yet to see anyone make a truly forceful political argument that any of the most critical current GOP leaders (namely Donald Trump, Mitch McConnell or Paul Ryan) ought to see great political benefits from now starting to aggressively champion federal statutory sentencing reform efforts… I view Senator Cotton’s latest comments as still further confirmation of my own long-standing fear that it continues to be much easier for all sorts of federal political actors to talk a lot about sentencing reform than to actually convert all the sentencing buzzing into actual federal statutory reforms.”

To make matters worse, some Democrats are suggesting that Congress simply needs to start fresh in 2017. With a limited legislative calendar remaining this year, time is fast running out for a bipartisan bill. Democrats believe the party is poised to make Congressional gains in November, fueling a school of thought that says it might be better to wait for bolder legislation next year.

Much of the gridlock blocking the passage of the Act centers on one controversial issue: mens rea reform.  “Mens rea” – Latin for “guilty mind” – refers to requirements in criminal law relating to a defendant’s mental state, like the intent to cause harm or knowledge of what one was doing. Republicans have demanded that criminal justice reform crack down, forcing prosecutors in many cases to prove that defendants knew they were breaking the law. Democrats have balked, arguing the reform would make it much harder to prosecute corporate executives for white-collar crimes.

Last week, Politico admitted that both sides had a point. “Mens rea reform can increase clarity in the law and make unfair prosecutions less likely. But the Republican proposals, in both the House and Senate, are so strict that they would insulate many highly culpable actors from conviction.” Politico suggested that instead of allowing the issue to derail criminal justice reform, lawmakers should agree on a middle ground that imposes a simple default mens rea requirement — knowledge of the facts constituting the offense. Such an agreement, Politico argued, would improve “criminal law and pave the way for comprehensive criminal justice reform.”

Meanwhile, the Congressional Budget Office released a report last week estimating that passage of S. 2123 would reduce the cost of incarcerating offenders, saving $318 million over the 2017-2021 period and $722 million over the 2017-2026 period.

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 we can help you, we’ll tell you that. If what you want to do is futile, we’ll tell you that, too.

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

Would you like a copy of this newsletter in PDF format?  Click here.

Vol. 2, No. 22

This week:

6th Circuit Says Johnson Applies to Guidelines Residual Clause

Lawyer’s Failure To Immediately Tell Client Appeal Was Lost Is Ineffective Representation

Law Review Article Calls For Post-Conviction Right To Counsel

Let’s Make a Deal

The Emperor Has No Clothes

Judge To Guidelines: Drop Dead

Supervised Release Does Not Waive 5th Amendment Rights

Sentencing Reform Is “Seriously Stuck”

6TH CIRCUIT SAYS JOHNSON APPLIES TO GUIDELINES RESIDUAL CLAUSE

Last week’s LISA Newsletter reported that some Circuits had dodged the question of whether the Johnson v. United States holding – that the residual clause violates due process – applied to the Guidelines residual clause. We also covered a new law review article arguing that after the Supreme Court decision in Peugh v. United States (2012) and United States v. Molina-Martinez (Apr. 20, 2016), the Johnson decision clearly makes the Guidelines residual clause unconstitutional.

Last Friday, the 6th Circuit agreed. The Court said “it would be erroneous… to view the Guidelines as so distinguishable from “statutes fixing sentences to be immune from vagueness challenges but not other constitutional attacks. Post-Johnson and Peugh, the fact that the Guidelines are not mandatory is a distinction without a difference.” The Court concluded that “accordingly, we hold that the residual clause of U.S.S.G. § 4B1.2(a) is unconstitutionally vague. In our view, Johnson’s rationale applies with equal force to the Guidelines…”

United States v. Pawlik, Case No. 15-3566 (6th Cir.   May 13, 2016)

LAWYER’S FAILURE TO IMMEDIATELY INFORM CLIENT APPEAL WAS LOST IS INEFFECTIVE REPRESENTATION

In a remarkable decision handed down last Friday, the 2nd Circuit ruled that court-appointed attorneys have a duty under the Criminal Justice Act to file petitions for rehearing, or – if they believe such a petition would be frivolous – to tell defendants they have a right to file one pro se.

Javel Taylor appealed his drug conspiracy conviction, but lost. Later, he filed a motion under 28 U.S.C. § 2255 complaining that his lawyer had been ineffective for not promptly informing him of the appellate decision. If he had known about the denial within 14 days, Javel argued, he could have filed for rehearing, thus getting another bite of the apple.

The district court denied the 2255 motion, holding that even if Javel’s claim was true, he had not shown he suffered any prejudice since “it is highly unlikely that a petition for rehearing… would have been granted.”

The 2nd Circuit reversed. For the first time, it held that a court-appointed counsel has a duty under the CJA to file rehearing, or – if counsel believes the petition would be frivolous – to tell a defendant he has a right to file one himself. The Court emphasized that “in cases where counsel does find it necessary to move to withdraw, counsel should do so in a timely fashion and also file on the defendant’s behalf a motion for an extension of time to petition for rehearing…”

When an attorney fails to do so, the Court said, it will recall its mandate to permit filing for rehearing. The 2nd Circuit sent Javel’s case back to the district court to determine whether his counsel really failed to timely inform him of the decision affirming his conviction and sentence.

United States v. Taylor, Case No. 15-827 (2nd Cir. May 13, 2016)

LAW REVIEW ARTICLE CALLS FOR POST-CONVICTION RIGHT TO COUNSEL

Prisoners are seldom entitled to a lawyer for habeas corpus actions or suits challenging prison conditions. We reported in March that Ken Strutin of the New York State Defenders Association had written a newspaper column arguing the right to counsel should extend to inmates.

In a law review article published last week, Strutin expanded on his argument that “unlike other features of corrections, the right to counsel is at the core of an individual inmate’s juristic personality…”  He argues that “in a sense, inmates all suffer from some form of Post Traumatic Stress Disorder (PTSD), scarcely a qualification for self lawyering. Prisoners and lawyers do not share the same cognitive horizons. Even if it rained law books day and night in the prison yard, it could not possibly obviate the trauma and oppression of incarceration sufficiently to turn prisoners into lawyers.”

Strutin, Ken, Litigating from the Prison of the Mind: A                         Cognitive Right to Post-Conviction Counsel, Cardozo Public Law,     Policy & Ethics Journal (2016)

LET’S MAKE A DEAL

Jehoni Williams made a deal with the government. He pled guilty and cooperated, but the government did not keep its end of the deal, which was to recommend the bottom of the sentencing range. Instead, Jehoni got the top of the Guidelines, and he appealed.

The government admitted its breach, but argued Jehoni was only entitled to a do-over, a resentencing where the government finally did what it had promised to do. The defendant claimed he should be allowed to walk away from the plea agreement and guilty plea. Last week, the 5th Circuit agreed with Jehoni.

When the government breaches a plea agreement, a defendant may seek either specific performance – a resentencing in front of a different judge – or withdrawal of his guilty plea. Here, the government seemed to argue that while Jehoni had a right to “seek” one of two remedies, which remedy he was awarded should be up to the district judge.

The Court of Appeals rejected this notion, holding that if the government’s breach is material, it’s no one’s choice but the defendant’s, who “has the right to have his chosen remedy accepted.”

United States v. Williams, Case No. 14-11131 (5th Cir.   May 9, 2016)

THE EMPEROR HAS NO CLOTHES

For the few federal inmates who actually go to trial, the government’s habit of using “expert” witnesses for everything from gangs to coded communications to religious symbols used in drug trafficking is well known. The “expert” is allowed to express his opinion – an opinion invariably useful to the prosecution – with the jury hanging on every word.  

To many defendants and their attorneys, the experience of facing such “experts” is frustrating. Last week, an Eastern District of New York opinion suggested forcefully that the emperor “expert” had no clothes.

Seduced by the lure of being on TV, Erica Almeciga, the girlfriend of a Mexican drug cartel enforcer, agreed to be interviewed for a documentary called “I was a Hitman for Miguel Trevino.”  The video became a YouTube sensation, after which Erica reconsidered whether it was smart of her to publicly smear a gang of ruthless mobsters.  She sued Univision, claiming that the network had failed to honor its promise to keep her anonymous.

Univision said Erica had signed a release, but Erica said it was a forgery.  She produced an expert, a forensic document examiner, who studied the signature and said it was fake.

Federal District Judge Jeb S. Rakoff threw out Erica’s case.  He rejected her hand-writing witness’s claim of expertise as so much snake oil.  In order for expert testimony to be admissible under the Federal Rules of Evidence 702, an expert’s scientific, technical, or other specialized knowledge must be “based on sufficient facts or data,” be “the product of reliable principles and methods,” and be “reliably applied the principles and methods to the facts of the case.”   “Nothing,” Judge Rakoff complained, “requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert.”  (Ipse dixit loosely translates as “he himself said so”).

Handwriting analysis, the court said, is not scientific, but rather was “invented specifically for use in the legal arena.”   Applying the test from Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the court found that handwriting analysis “has not been subject to adequate testing… error rates for the task at hand are unacceptably high, and the field sorely lacks internal controls and standards.”   The court threw out the Erica’s expert’s opinion.

In an observation that suggests much more “expert” testimony should be scrutinized under Daubert – even on non-scientific matters such as those offered in many criminal cases – the Court complained “there have been too many pseudo-scientific disciplines that have since been exposed as profoundly flawed, unreliable, or baseless.”  It is the Court’s role to ensure that a given discipline “does not falsely lay claim to the mantle of science,” the Judge said, and no court should “take this role lightly.”

Almeciga v. Center for Investigative Reporting, Inc.,                                        Case No. 15-cv-4319 (E.D.N.Y.   May 6, 2016)

JUDGE TO GUIDELINES: DROP DEAD

Washington Paredes, an Ecuadorean immigrant, was a courier for a New York delivery service. When he delivered some drugs being watched by federal agents, he was arrested.

Washington faced a 10-year mandatory minimum sentence. He would have been eligible for the “safety valve” under 18 U.S.C. § 3553(f) – which would have let the judge ignore the 10-year bit in favor of a guidelines range of less than half that – except that he had a 2014 New York ticket for Driving While Ability Impaired.

A DWAI is not drunk driving. It’s not even a criminal conviction. In fact, the 2nd Circuit ruled a few years ago that the charge did not count toward a defendant’s criminal history. The Sentencing Commission, however, rewrote the applicable Guideline to specifically include driving under the influence “and similar offenses, by whatever name they are known.”

But Washington was being sentenced by E.D.N.Y. District Judge Jack Weinstein, a jurist with a reputation for thoughtful sentencing. Judge Weinstein rejected the amended Guidelines because they “would encompass New York’s ‘ability impaired’ provision, a light, noncriminal offense with mens rea squeezed out of it…” He held that “the Court of Appeals for the 2nd Circuit has effectively decided this issue. The Commission’s amendment, designed to minimize the sentencing courts’ discretion, is not binding in the instant case.”

Paredes was thus eligible for the “safety valve,” and – considering he would be deported after service of his sentence – Judge Weinstein sentenced him far below the Guidelines, to time served of 8 months.

United States v. Paredes, Case No. 15-cr-436 (E.D.N.Y.  May 6, 2016)

CHECK YOUR 5TH AMENDMENT RIGHTS AT THE DOOR

Brian Von Behren had a 3-year supervised release term after serving a sentence for child porn. One of the conditions of his supervised release directed him to successfully complete a sex offender treatment program, including taking a lie detector test requiring him to admit whether he had ever committed sexual crimes for which he had not been charged. The treatment program would report any such crimes to authorities.

Von Behren refused the test, arguing it violated his 5th Amendment privilege against self-incrimination. He was thrown out of the program, which was a violation of his supervised release. The district court held the polygraph requirement did not infringe on Von Behren’s 5th Amendment rights, because his answers would not be enough to prosecute him, and nothing compelled him to answer.

Last week, the 10th Circuit reversed, endorsing a broad 5th Amendment right even for those on supervised release. The Court said it would “uphold an individual’s invocation of the privilege against self-incrimination unless it is ‘perfectly clear, from a careful consideration of all the circumstances in the case,’ that the witness’s… answers could not ‘possibly have’ a ‘tendency to incriminate’.” The government argued the answers to the general polygraph questions could not convict Von Behren, but the 10th Circuit said that was beside the point. “An affirmative answer to any one of these questions could not support a conviction on its own, but that is not the test. The 5th Amendment is triggered when a statement would provide a ‘lead’ or ‘a link in the chain of evidence needed to prosecute the’ speaker, and affirmative answers to these questions would do just that.”

There was no question, the Court said, that Von Behren was compelled to take the test. The government threatened to send him back to prison if he refused to complete the treatment course, which required the polygraph. The 10th Circuit said that this threat alone was sufficient to “constitute unconstitutional compulsion within the meaning of the 5th Amendment.”

United States v. Von Behren, Case No. 15-1033 (10th Cir.                      May 10, 2016)

SENTENCING REFORM IS “SERIOUSLY STUCK”

The rewrite of federal sentencing laws – the Sentencing Reform and Corrections Act of 2015 – has been hailed as one of the few memorable policy achievements of the current Congress, an exception to the rule of congressional gridlock. Despite the hoopla, an analysis in Roll Call last week concluded that “‘sentencing reform’, as it’s known on the Hill, is seriously stuck.”

This is clearest in the Senate, where the legislation may be close to publicly coming off the rails, buffeted by anxieties about releasing drug dealers on the right and anger at Wall Street greed on the left.

Two weeks ago, an ideologically diverse group announced changes to the bill they thought would guarantee support by more than 60 senators. Nineteen Democrats and 16 Republicans have signed on, including both the whips, John Cornyn (R-Texas) and Richard J. Durbin (D-Illinois). Backers are standing behind sentence reform as good social, law enforcement and budget policy. Members in tough races are also eager to distance themselves from the “Do-Nothing Congress” label by getting behind a tangible accomplishment. Thus, there’s a decent chance the bill will come to the floor this summer.

But sentence reform faces tough sledding from law enforcement and powerful congressmen determined to kill it. Last Wednesday, conservative lawmakers and law enforcement officials held a press conference to explain why they believe it is the “wrong time” to cut mandatory minimums and releasing felons. “What’s the pressing need to open the cell doors?” Rep. Lamar Smith (R-Texas) asked. “The downward trend in crime rates is due, at least in part, to the mandatory minimum prison terms set in the 1980s. Why push for a massive prison break when the penalties are working?”

William Bennett, drug policy czar under President George W. Bush, argued last week that drug offenses are violent crimes. It is “irresponsible,” he fumed, “to release experienced drug dealers from federal prison before they have completed their just sentences, arguing they are merely misguided business people or desperate individuals caught up in an unfair system.”

Sens. Ted Cruz (R-Texas) and Jeff Sessions (R-Alabama) are leading the charge against the bill, arguing the measure is too soft on crime. While Donald Trump has not taken a position on the measure yet, his statements suggest he’ll come out against it, especially if Hillary Clinton decides to endorse the bill.

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 we can help you, we’ll tell you that. If what you want to do is futile, we’ll tell you that, too.

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

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Vol. 2, No. 21

This week:

Obama Commutes 58 More as DOJ Urges “Final Push”

8th Circuit Punts, Even As Law Review Article Argues

Johnson Must Apply to “Career Offenders”

Have Mercy on an Orphan

Using the F-Word

Judge Holds Flying Spaghetti Monster Is Not A Deity

All Quiet on the Congressional Front

OBAMA COMMUTES 58 MORE AS DOJ URGES “FINAL PUSH”

In his second round of clemency grants in 6 weeks, President Obama commuted the drug sentences of 58 prisoners last Thursday, about half of whom came from petitions supported by the DOJ’s volunteer lawyer-staffed “Clemency Project 2014.”

Cynthia W. Roseberry, project manager for the Project, said “there are a significant number of deserving applicants… including over 900 through Clemency Project 2014, and are awaiting action by the administration.”

DOJ is pressing hard to keep the clock from running out on thousands of federal inmates still hoping to get their drug sentences commuted by the President before he leaves office. At the end of April, Deputy Attorney General Sally Yates pleaded with the Clemency Project to get recommendations filed right away. “Time is of the essence and the inmates who raised their hands for your assistance still need your help,” she wrote, noting the group has set internal deadlines for most cases as soon as today and for other cases in mid-May.

“I cannot stress how important it is to meet those deadlines,” Yates said. “If those deadlines cannot be met, we need to ensure that inmates have sufficient time to file pro se petitions, and that the Department of Justice has enough time to process and review them.”

Yates’ reference to inmates filing additional clemency petitions in the coming months – as well as the fact that half of those whose sentences were commuted last week apparently did not meet Clemency Project criteria – implies that the President intends to aggressively commute more sentences this year, and that those commutations may include a number of people who do not meet the Clemency Project guidelines.

Last Thursday, Obama said that commutation was “something I will keep working to do as long as I hold this office.” The President has granted 306 commutations to federal prisoners. As of last Friday, 9,115 commutation petitions were pending, and of these, fewer than 2,000 appear to be eligible for the president’s clemency program, according to a DOJ official. Thousands more are still being reviewed by outside lawyers.

Washington Post, Lack of resources, bureaucratic tangles have bogged down Obama’s clemency efforts (May 6, 2016)

The White House, President Obama Grants Commutations                 (May 5, 2016)

Politico, Obama team making last-ditch push on commutations          (Apr. 29, 2016)

TWO CIRCUITS PUNT, EVEN AS LAW REVIEW ARTICLE ARGUES JOHNSON MUST APPLY TO “CAREER OFFENDERS”

Last week, the 8th and 9th Circuits both punted on the question of whether the holding in Johnson v. United States – that the residual clause violates due process – applied to Guidelines career offenders as well as to Armed Career Criminal Act sentences.

In United States v. Martinez, the defendant and Government had agreed one of the predicate crimes for his “career offender” enhancement was no longer a crime of violence. The Court of Appeals set aside the “career offender” enhancement, saying “we assume without deciding that Johnson applies to the residual clause of the guidelines.” In United States v. Lee, the 9th Circuit decided that even not applying Johnson, the defendant’s predicate conviction was not a crime of violence.

So does Johnson apply to career offenders? In an Oregon Law Review article published online last week, Kelsey Heilman argued the Guidelines are still the starting point from which sentences are calculated, as the Supreme Court noted two weeks ago in Molina-Martinez). She said “the real and pervasive effect the Guidelines have on sentencing” require that Johnson apply to “career offender” just as it does the ACCA.

“The Guidelines continue to exert enormous influence over sentences,” the article said. “In 2014 nearly half of sentences were within the applicable Guidelines range, and a large majority of sentences were either within-Guidelines or below-Guidelines at the government’s request.” Since 2005, DOJ has tracked federal sentencing trends after Booker. Its most recent report, released in 2012, conceded “‘the guidelines have remained the essential starting point for all federal sentences and have continued to influence sentences significantly.’ After reviewing sentencing statistics both pre- and post-Booker, the report goes on to conclude there is ‘relative stability over time in the relationship between the average guideline minimum and the average sentence for offenses in the aggregate’.”

The current batch of Sentencing Commission amendments includes one to change the “career offender” definition of “crime of violence” to bring it in line with Johnson, and the Commission could make everyone’s life easier if it were to make the change retroactive. Ohio State University law professor Douglas Berman said in his blog that retroactivity is unlikely, however, because “doing so could prove almost administratively impossible.”

Nevertheless, the Heilman article concluded that “roughly 75,000 individuals are sentenced each year in the federal system. For each of them, the Guidelines are the mandatory starting point, the most likely ending point, and in all cases a powerful gravitational force. Immunizing the Guidelines from vagueness challenges deprives these individuals both of notice of the likely consequences of their actions and of any meaningful way to challenge arbitrary enforcement of the Guidelines. The Due Process Clause requires the application of the vagueness doctrine to the Guidelines.”

United States v. Martinez, Case No. 15-1004 (8th Cir. May 3, 2016)

United States v. Lee, Case No. 13-10517 (9th Cir. May 6, 2016)

Heilman, Why Vague Sentencing Guidelines Violate the Due Process Clause, Social Sciences Research Network, Apr. 28, 2016)

HAVE MERCY ON AN ORPHAN

Everyone has heard about the guy who killed his parents, and then asked the court to have mercy on him because he was an orphan. Life sort of imitated art in the 8th Circuit last week.

Mike Fiorito was looking at a lot of time for mail fraud. The government offered him either a deal in the 151-month range, concurrent with a 10-year state sentence he was serving. It was much than going to trial, his lawyer explained to him, where he was likely to get hammered.

Fiorito took the deal, but – back in his jail cell – had second thoughts. He wrote to the judge demanding to withdraw his guilty plea. His lawyer warned him that withdrawing the plea would lead to dire consequences. But Mike kept writing, and after a third letter, the judge gave him what he wanted. Without holding a hearing, the district court let Fiorito withdraw his plea.

Fiorito went to trial in front of a different judge, and you can guess the rest. He did get hammered, receiving a 270-month sentence on top of his state term. Fiorito filed a motion under 28 U.S.C. § 2255 claiming the district court denied him the right to counsel before granting his pro se request to withdraw the plea, and it should have warned him of the dangers of withdrawing the plea on his own.

Last week, the 8th Circuit denied his claims. The Court said “the mere fact that the district court considered Fiorito’s letters requesting to withdraw his guilty plea did not necessarily render him unrepresented. Fiorito was represented by counsel, who repeatedly advised him not to withdraw his guilty plea. Fiorito made the personal decision to ignore this advice and withdraw his guilty plea; as the defendant, he maintained the ultimate authority to make certain fundamental decisions regarding the case, including whether to plead guilty.”

Courts have a lot of leeway in deciding whether a hearing is needed before granting a motion to withdraw a plea, or whether a defendant should be warned about self-representation. Here, the Court said, “Fiorito did not need assistance from counsel – or a warning from the court about the dangers of proceeding without counsel – in litigating an adversarial hearing on his request to withdraw,” because there was no hearing to litigate.

Fiorito got just what he asked for without a hearing. Have mercy on an orphan.

Fiorito v. United States, Case No. 15-2319 (8th Cir. May 3, 2016)

USING THE F-WORD

As part of its “Reentry Week” activities the last week of April, the Office of Justice Programs at DOJ adopted a new policy statement that replaces “unnecessarily disparaging labels” like “felon” or “convict” or “offender” with terms like “person who committed a crime” or “individual who was incarcerated.”

The director of the Office said this would “decouple past actions from the person being described and anticipating the contributions we expect them to make when they return. We will be using the new terminology in speeches, solicitations, website content, and social media posts, and I am hopeful that other agencies and organizations will consider doing the same.”

The new policy does not apply to any other DOJ offices.

Washington Post, Justice Dept. agency to alter its terminology                for released convicts, to ease reentry (May 4, 2016)JUDGE DECLARES FLYING SPAGHETTI MONSTER NOT A DEITY

Steven Cavanaugh, a Nebraska state inmate, sued under the 1st Amendment and the Religious Land Use and Institutionalized Persons Act because officials wouldn’t let him wear pirate duds, worship the Flying Spaghetti Monster (FSM), or take part in other Pastafarian pleasures. He said that the prison was violating his constitutional right to practice his religion.

Last month, U.S. District Judge John Gerrard (already in the news for his opposition to mandatory minimum sentences) denied Cavanaugh’s motion: “What drives the FSM’s devout followers, aka Pastafarians?” the Judge’s opinion asked. “Some say it’s the assuring touch from the FSM’s Noodly Appendage. There are those who love the worship service, which is conducted in Pirate-Speak and attended by congregants in dashing buccaneer garb. Still others are drawn to the Church’s flimsy moral standards, religious holidays every Friday, and the fact that Pastafarian Heaven is way cooler. Does your Heaven have a Stripper Factory and a Beer Volcano? Intelligent Design has finally met its match—and it has nothing to do with apes or the Olive Garden of Eden.”

But after examining the elements constituting religious beliefs, the Judge decided that Pastafarianism is not a religion, only a parody made to look like one. “This is not a question of theology,” the Court wrote. “It is a matter of basic reading comprehension… it is evident to the Court that FSMism is not a belief system addressing ‘deep and imponderable’ matters: it is… a satirical rejoinder to a certain strain of religious argument… Nor, however, does FSMism advocate for humanism or atheism… Those belief systems, although not theistic, still deal with issues of ‘ultimate concern’ and take a position ‘on religion, the existence and importance of a supreme being, and a code of ethics.’ FSMism takes no such position: the only position it takes is that others’ religious beliefs should not be presented as ‘science.’ Despite touching upon religion, that is a secular argument.”

Cavanaugh v. Bartelt, Case No. 4:14-CV-3183                                          (D.Neb. Apr. 12, 2016)

SENTENCE REFORM: ALL QUIET ON THE CONGRESSIONAL FRONT

After the prior week’s frenzy surrounding the announcement of a revised Sentencing Reform and Corrections Act, Congress seems to have taken the first week of May off to catch its breath. Nothing happened legislatively last week on either S. 2123 or H.R. 3713.

The website Real Clear Politics reported that “time is running out for Congress to act this year, with a shortened calendar and long breaks during the summer and fall for campaigning. Still, there was confidence last week among supportive senators, who unveiled new changes to legislation intended to increase support among Republicans, that the measure could be finished this year.”

Others were not so upbeat. A liberal-leaning writer for website Politic365 asked last week “will Senate Majority Mitch McConnell move… S. 2123… against the backdrop of a Republican race that could possibly become a monstrous failure for the Republican Party? “Six target seats just turned into twelve target seats,” said NBC’s Chuck Todd today. That alone should turn Team Mitch into a pillar of salt regarding moving forward on Grassley’s bill.”

It does not contribute to S. 2123’s chances of passage that likely Republican presidential nominee Donald Trump has said that the real victims are the police, who, he insists, “have been treated horribly.”

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 we can help you, we’ll tell you that. If what you want to do is futile, we’ll tell you that, too.

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

Would you like a copy of this newsletter in PDF format?  Click here.

Vol. 2, No. 20

This week:

Sentencing Reform Rises from the Dead

Time is on Your Side

Crime Costs Too Much – So Does Punishment

Good Judge …

… Bad Judge

Last Week Was a Big One for Criminal Law Arguments at the Supreme Court

SENTENCING REFORM RISES FROM THE DEAD

The senators who have been revising the Sentence Reform and Corrections Act of 2015 unveiled their reworked compromise in a news conference last Thursday, showing a renewed sense of
momentum behind legislation to ease mandatory minimum sentences for nonviolent offenders.

“Obviously, reaching a consensus hasn’t been easy,” Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) said. “But we believe that it truly addresses in a bipartisan way the concerns that had been brought forward.” Senate Minority Whip Dick Durbin (D-Illinois), added: “This is the best chance in a generation to reform our criminal drug sentencing laws.”

Supporters say four Republican and three Democrat senators are signing on as new co-sponsors. As of Friday, six had done so.

The changes in the revised bill are substantial. The language in the original legislation to reduce the mandatory minimum sentence from 15 to 10 years for people convicted under the Armed Career Criminal Act has been eliminated. Reuters reports that ACCA inmates “represent nearly a fifth of the 12,908 current inmates who would have been eligible for resentencing under the old bill, according to the U.S. Sentencing Commission.” Other reduced mandatory minimum sentences in the bill will not apply retroactively to anyone who has been convicted of any “serious violent felony.” The Marshall Report characterized the changes in its email news report last Friday as “honey, I shrunk the reform bill.”

Mens rea reform was excluded from the revision because the authors are divided on the issue. Democrats generally oppose strengthening mens rea requirements, arguing it would enable more corporate misconduct by making it difficult to prove corporate “intent.” NPR reported last Friday that House Speaker Paul Ryan (R-Wisconsin) wants to move forward with the House version of the reform bill, “but what should be included in the bills, and what should be left out, is not so simple. House Republicans have said they will not approve lightening penalties for drug offenses without language that would raise the burden for prosecutors in proving criminal intent in some environmental and business cases. That’s a deal-breaker for the Justice Department and some Democrats.”

The House bill, H.R. 3713,  picked up another Democrat co-sponsor last Friday, for a total of 66.

The next step for the Senate bill’s backers will be to persuade Senate Majority Leader Mitch McConnell (R-Kentucky) to bring the legislation to a vote this year.

It’s not going to be a slam-dunk by any means. Shortly after last Thursday’s news conference, Sen. Jeff Sessions (R-Alabama) issued a long, stinging press release slamming the revisions. He complained that “despite assurances otherwise, the revised bill still shortens mandatory minimums for repeat drug traffickers, including those who carried a gun, and would allow for early release of those currently in federal prison. For example, someone like Wendell Callahan – who was released early from federal prison and murdered his ex-girlfriend and her two young daughters – would still be eligible for early release under the bill. In a 2011 motion for Callahan’s sentence reduction, Callahan’s attorney said federal prosecutors agreed that Callahan’s good behavior in prison and other factors led both sides to conclude that his early release did not present a danger to the safety of the public. Much like the Callahan case, courts across the country are rubber-stamping motions for early release pursuant to the Sentencing Commission reductions.”

Sen. Sessions is just one voice, but an important one. Ohio State law professor Douglas Berman noted in his sentencing blog last week that Sen. Sessions was the first senator to support Donald Trump, and that Sessions’ opinions are likely Trump’s opinions, too. Berman wrote, “I am not sure if this criticism will keep the revised SRCA from being brought up for a vote, but I do think the connection between Senator Sessions and presumptive GOP Prez candidate Trump provides yet another significant impediment to this bill becoming law.”

TIME IS ON YOUR SIDE

Elderly prisoner Archie Rachel sued in federal court because of inadequate medical care at his state prison. The prison moved for summary judgment. The district court gave Archie 21 days to seek discovery from the prison and file his opposition.

Archie – who had access to a law library for a few hours a week – could not even get discovery responses in 21 days. He moved for a 14-day extension of time, but when the district court did not rule on it, Archie whipped together an opposition and filed it without benefit of the discovery. The court granted summary judgment to the prison, and threw out Archie’s complaint.

Last week, the 10th Circuit reversed the district court. Generally, the rule allowing an extension of time “for good cause” – F.R.Civ.P. 6(b)(1) – should be liberally construed to advance the goal of trying each case on the merits. District courts should normally grant extension requests, made before the deadline, in the absence of bad faith by the requesting party or prejudice to another party.

Here, the Court said, Archie was 71 years old, physically handicapped, experiencing health problems, taking a variety of medications, and limited to a few hours a week in the library. It noted that he filed for the extension 14 days before his deadline, and “no one has questioned the presence of good cause for an extension of time.” Under those circumstances, the Court of Appeals said, the magistrate judge’s failure to address the extension motion “constituted an abuse of discretion.”

Rachel v. Troutt, Case No. 15-6104 (10th Cir.  Apr. 26, 2016)

CRIME COSTS TOO MUCH – SO DOES PUNISHMENT

Meanwhile, back at the White House, the Obama administration – with the help of some prominent conservatives – has mounted a full-court press to push the case for rewriting nation’s criminal justice system. The argument is that too many people are in prison, at too great an economic and human cost to the United States.

A band of liberals and conservatives joined at a White House event last week to urge Congress and the states to re-examine the cost of incarceration. They want to reduce the U.S. prison population, prepare inmates for life after prison and take measures to prevent people from turning to a life of crime.

The White House also released a report on the economic consequences of the criminal justice system that included a flood of statistics making a strong case for an overhaul. “Sometimes a cost-benefit analysis tells you it’s a slam dunk,” said Douglas Holtz-Eakin, a conservative economist and president of the American Action Forum. And Arthur Brooks, president of the conservative-leaning American Enterprise Institute, said the case for an overhaul is not just about money. “This is about the lives we are throwing away,” he said. “We pay an enormous price for this.”

CBS Marketwatch, Conservatives and White House Agree:                        US Criminal Justice System Does Not Pay Off (Apr. 25, 2016)

GOOD JUDGE …

The defendant in front of North Carolina Judge Lou Olivera had a substance abuse record. He also had a 20-year record as an Army Special Forces sergeant, with four tours in Afghanistan, three Purple Hearts and serious PTSD.

When the defendant, Joseph Serna, admitted he had lied about a urine test, he was sentenced to a night in jail. The judge could see the man was shaking with fear. A veteran himself, Judge Olivera feared Serna might have a PTSD attack during the night.

As Serna sat down on the cot in his cell, he heard the door rattle open again and saw Judge Olivera walk in and sit down beside him. Someone came and locked the door. “This was a one-man cell so we sat on the bunk and I said, ‘You are here for the entire time with me?’” Serna reported later. “He said, ‘Yeah that’s what I am doing’.”

The two passed the night trading stories of their experiences in the military. Serna later said: “It was more of a father-son conversation. It was personal.”

Washington Post, A compassionate judge sentences a veteran                  to 24 hours in jail, then joins him behind bars (Apr. 22, 2016)

BAD JUDGE …

Harrison Norris, a black man, received a life sentence  after being convicted of forcing women – mostly white women (which turns out to be important) – into prostitution. His sentence was overturned on appeal as not being proper under the Guidelines and was cut to 35 years when he was resentenced by a different judge.  But the saga did not end there.

The district judge who presided over Norris’s trial and original sentence was arrested for drug and gun possession several years later. Evidence from the arrest showed the judge had bipolar disorder and a brain injury from a bicycling accident. The investigation also found witnesses who said the judge wanted to give all black men who pimped white women the maximum penalty and that he specifically disliked Norris. Norris filed a Sec. 2255 motion to set aside the conviction on the grounds of judicial bias, but the motion was denied without a hearing.

Last week, the 11th Circuit reversed, sending the case back for a hearing. Norris proffered evidence that the judge “had a difficult time adjudicating African-American men’s cases and specifically disliked Norris based on the fact that Norris was a black man who pimped white women,” and the judge had told a witness that he “wanted to give all black offenders who pimped white women the maximum possible penalty.” The Court said that “contrary to the ruling of the district court, structural error occurs when a judge with actual bias against a defendant presides at his trial… “The entire conduct of the trial from beginning to end is obviously affected . . . by the presence on the bench of a judge who is not impartial.” And we cannot review a trial transcript to determine whether the presiding judge, despite his actual bias, was fair: “The record does not reflect the tone of voice of the judge, his facial expressions, or his unspoken attitudes and mannerisms, all of which, as well as his statements and rulings of record, might have adversely influenced the jury and affected its verdict.”

Norris v. United States, Case No. 15-10390 (11th Cir.  Apr. 25, 2016)

LAST WEEK WAS BIG ONE FOR CRIMINAL LAW ARGUMENTS AT SUPREME COURT

The Supreme Court of the United States (SCOTUS) sits for a 9-month “term” that runs from October to the end of June. In order to wrap up its year, the Court usually hears its last oral arguments by the end of April, and then issues a flurry of opinions over the last 8 weeks or so before its summer recess.

The Court’s final week of oral arguments last week included two criminal cases of note. The headline-grabber was McDonnell v. United States, featuring a former Virginia governor as defendant. McDonnell was convicted of taking over $100,000 in gifts from a businessman, and in exchange arranging meetings and generally plugging the guy’s products. The catch is that the Governor awarded his benefactor no contracts, sponsored no legislation, and did not strong-arm any state officials into favorable decisions.

The statutes used to convict McDonnell make it illegal to take “official action” in exchange for anything else of value. The question is exactly what constitutes “official action.” In arguments last week, the Justices seemed inclined to draw a line between “access” and “influence.” Organizations representing former government officials, defense attorneys and law professors filed briefs supporting McDonnell, arguing against government overreaching in defining the statute, which they say criminalizes virtually any assistance government officials or workers might provide to someone who had previously given them a gift, however small.

In not nearly as sexy a case, but probably more important to many federal defendants, SCOTUS heard arguments in Mathis v. United States last Tuesday. Mathis grapples with the “modified categorical approach” (MCA) ¬– defined three years ago in Descamps v. United States – of determining whether state burglary statutes define crimes that count under the ACCA, the Guidelines, and other federal offenses that define prior crimes as “violent” or “nonviolent.” Defendant Mathis says one must look at the statute first. The government wants courts to look at what the defendant’s state court records (Shepard documents) say he did. Justice Kagan – who wrote Descamps – suggested courts should look at the state statute and model jury instructions first, and only consult Shepard documents as a last resort.

Mathis was sentenced under the ACCA in part because of a prior Iowa 3rd degree burglary. The district court found the Iowa statute divisible even though the Iowa Supreme Court had squarely held that the burglary statute contained a single unitary set of “elements.” The 8th Circuit Court of Appeals affirmed, holding that the distinction between means and elements is irrelevant to the determination of divisibility.

If the Supreme Court adopts Mathis’s argument, most state burglary laws would probably not trigger the ACCA, and many lawful permanent residents would not face removal based on state burglary convictions. And the Court may well side with Mathis. SCOTUSBlog, a website covering the Supreme Court, said “it remains hard to see a path to victory for the government. Kagan is both a sure vote for Mathis and a logical candidate to take the opinion. Justice Sotomayor’s questions and comments during the argument certainly gave no hint of anything other than a vote for Mathis. Justice Thomas also seems a certain vote for Mathis, given his concurrence in Descamps in which he argued the MCA approach violates the 6th Amendment under Apprendi v. New Jersey. Neither Chief Justice Roberts nor Justice Breyer tipped his hand during Tuesday’s argument, but both joined Kagan’s Descamps opinion in full.”

SCOTUSBlog, “Anti-corruption law in trouble?”                                             (Apr. 27, 2016)

SCOTUSBlog, The Justices continue to struggle with                                    the “modified categorical approach” (Apr. 27, 2016)

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 we can help you, we’ll tell you that. If what you want to do is futile, we’ll tell you that, too.

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

Would you like a copy of this newsletter in PDF format?  Click here.

Vol. 2, No. 19

This week:

Supreme Court Says Incorrect Guidelines Range Affects “Substantial Rights”

Multidistrict Child Porn Search Warrant Thrown Out

Irritating Self-Representation No Basis for Higher Sentence

Get It in Writing

Let’s Talk About the Weather – or Maybe Sentence Reform

SUPREME COURT SAYS INCORRECT GUIDELINES RANGE AFFECTS “SUBSTANTIAL RIGHTS”

We’ve had Johnson v. United States on our mind after the Supreme Court’s quick decision in Welch v. United States last week held Johnson to be retroactive. So when Welch was followed by the high court’s 8-0 decision last Wednesday in Molina-Martinez v. United States, we could not help but think that its logic might bolster the arguments of Guidelines “career offenders” seeking to take advantage of Johnson in post-conviction proceedings.

Saul Molina-Martinez was sentenced at the bottom of his 77-96 month range. At the time, no one realized that his Presentence Report mistakenly put him in a higher criminal history category than his record justified. Only after Saul’s attorney told him that he had no good appeal issues did the defendant himself find the error and bring it to his lawyer’s attention.

When an issue is not first raised in the district court, it is almost always reviewed in the Court of Appeals under the F.R.Crim.P. 52(b) “plain error” standard. It’s a hard standard to meet. The error has to be obvious and must affect the defendant’s “substantial rights.” Saul’s problem was that his 77-month sentence fell right in the middle of the 70-87 month sentencing range he would have had applied to his case if the error had not been made. The 5th Circuit held that because Molina-Martinez’s sentence fell inside the correct, lower range, the error did not affect his substantial rights, because he could not show his sentence would have been lower but for the mistake.

The Supreme Court rejected this “categorical” requirement that a defendant must present “additional evidence” indicating that he would have received a different sentence had the right range been used. The Supreme Court’s opinion leaned heavily on its 2012 ruling in Peugh v. United States (which established that despite the advisory nature of the Guidelines, they still have to pass constitutional muster). Citing Peugh, last week’s decision stressed that the “Guidelines’ central role in sentencing means that an error related to the Guidelines can be particularly serious.” This necessarily means that in “most cases a defendant who has shown that the district court mistakenly deemed applicable an incorrect, higher Guidelines range has demonstrated a reasonable probability of a different outcome” if the proper guideline range had been used.

The Court’s logic – as well as its strong reliance on Peugh – may provide a tailwind to defendants arguing that use of an unconstitutionally vague “residual clause” in labeling a defendant a Guidelines “career offender” is as much a denial of due process as is wrongly using the same “residual clause” to sentence him under the Armed Career Criminal Act.

Molina-Martinez v. United States, Case No. 14–8913 (Apr. 20, 2016)

MULTIDISTRICT CHILD PORN SEARCH WARRANT THROWN OUT

A Massachusetts federal judge ruled Wednesday that a search warrant for a wide-ranging Internet search issued by a federal magistrate judge in Virginia was invalid. The child pornography the government claimed was on the defendant’s computer was ordered suppressed, making continuing prosecution of this case unlikely.

The search warrant, issued under F.R.Crim.P. 41 in early 2015, allowed federal agents to use a “network investigative technique” (NIT), which is a piece of software typically used to penetrate the digital security of the Tor network. (Tor is a system used to hide the digital identify of users). That NIT “malware” led authorities to the defendant’s computer.

Earlier this year, the defendant challenged the government’s judicial authorization to deploy the NIT. He argued the warrant “allowed government agents to conduct a borderless dragnet search with no geographic limitation … Rule 41 simply does not permit a magistrate judge in Virginia to authorize the search of the defendant’s computer located in Massachusetts.”

The district court held that current law restricts the power of magistrate judges to grant search warrants for locations outside of the court’s district. The Federal Rules of Criminal Procedure and precedent do not restrict the power of district judges to do so, however. The judge noted that “unlike magistrates, the jurisdiction of district courts is usually defined by subject matter and parties rather than strictly by geography.”

For the past several years, DOJ has sought to expand magistrate judges’ ability to sign off on the deployment of NITs. The change would give federal authorities an expanded ability to conduct “remote access” under a warrant against a target computer whose location is unknown or outside of a given judicial district. Civil liberties groups and tech companies like Google strongly oppose the change, arguing it would vastly expand the government’s authority to hack into networks in search of criminal suspects.

The Supreme Court is expected to decide whether to approve a change to Rule 41 by May 1. Congress will then have seven months to accept, reject or modify a change. If lawmakers take no action, the rule would take effect in December.

Reuters, Justice Department: Child porn case shows need for new data search rules (Apr. 21, 2016)

Ars technica, Judge invalidates warrant that let Feds hack Tor-using child porn suspect (Apr. 20, 2016)

IRRITATING SELF-REPRESENTATION NO BASIS FOR HIGHER SENTENCE

Generally, adopting a trial strategy of acting like a jerk is a bad idea. Last week, however, the 7th Circuit said it was no basis for an increased sentence.

Ken Lewis figured he knew more than his lawyers. He probably figured he knew more than the judge, too. So in his trial for wire fraud and money laundering, he represented himself, despite warnings that it was a bad idea. He of course was convicted, but only after – as the Court of Appeals drily put it – he “was an irritant during the trial process.”

The district court did not take kindly to Ken’s trial shenanigans. It sentenced him to 151 months for wire fraud, and then stacked an additional 120 months on for the money laundering. The court based the draconian sentence on Ken’s misconduct during the trial.

On appeal, Ken continued his self-representation, but the Court of Appeals wisely appointed an attorney to write an amicus brief on his behalf. Ken did his cause no good, but the Court overlooked that, focusing instead on the amicus arguments. They were pretty good, too – the amicus lawyer forced the Government to admit that the money laundering conviction should be thrown out. The Court agreed, saying “the record is devoid of evidence that Lewis laundered money.”

The amicus attorney also argued that the district court could not punish Ken at sentencing for his foolish trial conduct. The Court agreed, saying that “Lewis’ litigation tactics cannot serve as a basis for his sentence. The record demonstrates that Lewis was an irritant during the trial process.” But it “would not be appropriate or permissible” to lengthen his sentence because of such vexatiousness, particularly given his pro se status. The district court’s frustration, however understandable, cannot permeate sentencing.”

United States v. Lewis, Case No. 14-2442 (7th Cir.  Apr. 20, 2016)

GET IT IN WRITING

In the world of medicine, it’s often said that careful recordkeeping is essential: “If you didn’t write it down, it didn’t happen,” as the adage goes.  How true.

Bob McNeese was a pharmacist who let himself be pressured into dispensing oxycodone to people who resold the pills on the street. He turned himself in, and worked out a plea deal in which he agreed to plead guilty to a conspiracy charge. His plea agreement noted that he had cooperated with authorities and had admitted to distributing at least 15,850 oxycodone pills, which the agreement mentioned “converts to” 2999.925 kilograms of marijuana. Pursuant to F.R.Crim.P. 11(c)(1)(C), McNeese and the government agreed to a fixed sentence of 63 months. The agreement mentioned that the sentence “takes into account the cooperation and assistance provided to law enforcement in this investigation,” but nowhere mentioned the Sentencing Guidelines or any range of punishment on which the 63 months was based.

The Presentence Report calculated Bob’s sentencing range to be 87-108 months. At sentencing, the government explained that Bob had assisted law enforcement and that an additional “three level reduction was included into this overall agreement” to account for that. That would have landed the 63-month sentence squarely within a 63-78 month range. The court observed that Bob had “gotten the benefit of what in effect is a downward departure motion” and imposed the 63-month sentence.

When the Sentencing Commission adopted Amendment 782, Bob applied for his 2-level reduction. The District Court said he was not eligible, because he had a Rule 11(c)(1)(C) agreed-upon sentence. Last week, the 6th Circuit agreed.

Bob argued that his case was like Freeman v. United States, in which the Supreme Court said that a Rule 11(c)(1)(C) sentence could be reduced under 18 U.S.C. § 3582(c)(2). But there, the plea agreement expressly said the agreed-upon sentence had been based on the Guidelines, and it provided the defendant’s criminal history and offense levels so that anyone reviewing it could confirm the calculation.

The 6th Circuit said that Bob’s argument “would require this court to make assumptions about what the parties might have known while negotiating and speculate about what might have motivated them when they put pen to paper… It is true that the prosecutor’s remarks at the sentencing hearing—together with the presentence report prepared by the probation officer—make clear that by the end of the sentencing hearing, McNeese, the government, and the district court all understood that the agreed-upon sentence did in fact derive from a Guidelines sentencing range. But nothing in the Freeman [decision] suggests that the parties’ knowledge, unexpressed or later expressed, should make any difference so long as a “sentencing range is [not] evident from the agreement itself.”

United States v. McNeese, Case No. 15-5548 (6th Cir.  Apr. 18, 2016)

LET’S TALK ABOUT THE WEATHER – OR MAYBE SENTENCE REFORM

The Sentencing Reform and Corrections Act of 2015 is turning out to be a lot like the weather – everyone’s talking about but nobody’s doing anything. The two bills – S. 2123 in the Senate and H.R. 3713 in the House – remain stalled. The Senate bill still has 28 cosponsors. The House measure picked up a Pennsylvania Democrat last week, and now has 65.

An optimistic note was sounded a week ago in an opinion piece in The Hill, a Capitol Hill newspaper. The ACLU official who wrote it said “reformers from across the political spectrum … are still focusing their efforts in the states, to ensure that voices of support are amplified virtually everywhere, and that lawmakers leading the effort are being encouraged supported by their constituents … The signs are promising.”

Observers without a dog in the fight see it differently. Politico, a news website covering Congress, warned last week that “time is running out to reboot efforts to reform the nation’s criminal justice laws…”

The chief Republican backers, led by Judiciary Committee Chairman Chuck Grassley (Iowa) and Majority Whip John Cornyn (Texas) have lobbied GOP senators for weeks to prove to Majority Leader Mitch McConnell (R-Kentucky) that they can gin up sweeping support for the bill and move the legislation quickly on the Senate floor.

As we reported last week, since concerns about the bill were made public, the authors have revised several provisions in the legislation. A section that reduced mandatory minimum sentences for those convicted under the Armed Career Criminal Act has been eliminated, and the bill now denies retroactivity to anyone who has been convicted of any “serious violent felony,” whatever that might be.

Those changes may be winning over some new Republicans. “We’re taking a real close look at it this week,” said Sen. Ron Johnson (R-Wisconsin), who is locked in one of the most competitive races of the year. “I’m very sympathetic with the bill.”

Backers are targeting Republican senators up for reelection this year. “We have a lot of progress made and people saying that we’ve gone in the right direction. But we’re not getting answers from some people,” Grassley said in a brief interview Wednesday. “Like for instance, one senator says, ‘I’ll let you know Monday.’ He hasn’t let us know.”

Sentence reform sponsors have hinted at a formal rollout of the bill for a floor vote for weeks, but the delay continues to buy more time to build support. Supporters admit they must prove to McConnell that they have 60 votes for the measure before the majority leader will schedule a floor vote on a bill that will divide Republican senators.

Meanwhile, legislative time is running short, and other issues are competing for what’s left of it. The Senate is preparing to restart its lengthy appropriations process. After the Republican National Convention in July, the chamber will be pretty much on recess until after the November election.

On criminal justice reform, the House has H.R. 3713, a parallel bill. The House Judiciary Committee has thus far passed eight separate measures – including H.R. 3713 – on issues such as sentencing and prison reform. House Speaker Paul Ryan (R-Wisconsin) has said he plans to bring those bills to the floor this year. The two chambers will have to resolve differences on the issue of mens rea — laws governing criminal intent. The Senate bill doesn’t include mens rea reform because of Democrat opposition, yet House Republicans have demanded that it be part of an overall criminal-justice package.

Finally, a pair of economists last week argued in the New York Times that the law of diminishing marginal benefits “applies to incarcerating additional people or adding years to sentences. Research finds that more incarceration has, at best, only a small effect on crime because our incarceration rate is already so high. As the prison population gets larger, the additional prisoner is more likely to be a less risky, nonviolent offender, and the value of incarcerating him (or, less likely, her) is low.”

“The same general principle applies to the length of prison sentences, which in many cases have gotten longer as a result of sentence enhancements, repeat-offender laws, “three strikes” laws and “truth-in-sentencing” laws,” they wrote. “Longer sentences do not appear to have a deterrent effect … Other studies have found that sentencing enhancements have only modest effects on crime. They are unlikely to meaningfully affect the overall crime rate or generate meaningful gains in public safety. Moreover, in many cases the analysis suggests that adding prisoners or years to sentences can be harmful. A growing body of research shows that incarceration and longer sentences could increase recidivism. Individuals may build criminal ties while incarcerated, lose their labor-market skills and confront substantial obstacles to re-entry after release. A new study finds that each additional year of incarceration increases the likelihood of re-offending by four to seven percentage points after release.”

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 we can help you, we’ll tell you that. If what you want to do is futile, we’ll tell you that, too.

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

Would you like a copy of this newsletter in PDF format?  Click here.

Vol. 2, No. 18

This week:

Supreme Court Declares Johnson Retroactive

Sentencing Commission Proposes 2016 Amendments

Something in the Wind at Supreme Court Today?

Sentencing Commission Challenges BOP Primacy on Compassionate Release

Is Sentencing Reform Being Watered Down?

SUPREME COURT DECLARES JOHNSON RETROACTIVE

By a 7-1 vote, the United States Supreme Court this morning declared that its holding last summer in Johnson v. United States – that declared the “residual clause” of the Armed Career Criminal Act to be unconstitutionally vague – is retroactive to cases that were already final when Johnson was handed down.

In an unusual decision announcement on a Monday morning, just before a major argument got underway on the Obama administration’s immigration orders (United States v. Texas), the 8-member Court held in Welch v. United States that the Johnson decision was a “substantive rule” and thus retroactive. The decision reversed an 11th Circuit denial of a 2255 motion.

The Court said that under the Teague v. Lane “framework, the rule announced in Johnson is substantive.  By striking down the residual clause as void for vagueness, Johnson changed the substantive reach of the Armed Career Criminal Act, altering “the range of conduct or the class of persons that the Act punishes.” Before Johnson, the Act applied to any person who possessed a firearm after three violent felony convictions, even if one or more of those convictions fell under only the residual clause.  An offender in that situation faced 15 years to life in prison.  After Johnson, the same person engaging in the same conduct is no longer subject to the Act and faces at most 10 years in prison.  The residual clause is invalid under Johnson, so it can no longer mandate or authorize any sentence.  Johnson establishes, in other words, that “even the use of impeccable factfinding procedures could not legitimate” a sentence based on that clause.  It follows that Johnson is a substantive decision.”

Justice Kennedy wrote the opinion. Only Justice Thomas dissented.

The decision should start a land rush on ACCA and “career offender” 2255 motions over the next two months. The timeliness rules of 28 U.S.C. § 2255(f) suggest that any filings seeking to benefit from Johnson retroactivity must be filed by the one-year anniversary of the Johnson ruling, which was handed down on June 26, 2015.

Welch v. United States, Case No. 15-6418 (April 18, 2016)

SENTENCING COMMISSION PROPOSES 2016 AMENDMENTS

The U.S. Sentencing Commission adopted proposed changes to the Sentencing Guidelines last Friday, amendments that included significant modifications to immigration and animal fighting sentences. Of most relevant to federal inmates, the Commission challenged the BOP by proposing a major expansion in the standards for compassionate release (see third story).

The immigration amendment would create a scale of Guideline levels to account for the level of a defendant’s prior criminal conduct in a more proportionate manner than the current flat 16-level enhancement.

The Commission also voted to strengthen the Guidelines “to better reflect the cruelty and violence” associated with animal fighting offenses. After receiving over 50,000 comments on the proposal – a Sentencing Commission record – the agency voted to raise the base offense level for animal fighting offenses by 350% and to add an enhancement for anyone who takes a minor to an animal fight.

In the last few years, the vagueness and incomprehensibility of standard supervised release terms have made them a punching bag for the courts. In response, the Sentencing Commission proposed amendments to revise and clarify probation and supervised release terms. The agency admitted that “the Seventh Circuit has found several of the standard conditions to be unduly vague, overbroad, or inappropriately applied … and has also suggested that the language of the conditions be revised to be more comprehensible to defendants and probation officers, and to contain a stated mens rea requirement where one was lacking.” The proposed changes are intended to be “simply worded, bearing in mind that, with rare exceptions, neither the defendant nor the probation officer is a lawyer and that when released from prison the defendant will not have a lawyer to consult.”

Nothing in last Friday’s proposal addressed whether the proposed Guidelines changes would be retroactive. In the past, the Commission has not addressed retroactivity when a Guidelines change was proposed. If any of the proposed amendments is a suitable candidate for retroactivity, the Commission will probably take it up the question in a future proceeding.

U.S. Sentencing Commission, U.S. Sentencing Commission Approves Significant Changes To The Federal Sentencing Guidelines                          (Apr. 15, 2016)

Sentencing Commission, 2016 Proposed Amendments to           Sentencing Guidelines (Apr. 15, 2016)

SOMETHING IN THE WIND AT SUPREME COURT?

The Supreme Court, altering its usual agenda, announced last week that it would issue one or more opinions in argued cases today, as well as on the more normal days of Tuesday and Wednesday. Ordinarily, when the Court is hearing argument on Mondays, it releases only orders in new cases, and withholds opinions until later in those weeks.

The new plan stirred speculation that the Court has found some specific urgency in a pending case that requires immediate action. Monday will see a large crowd in the courtroom because the case up for argument that day is the major challenge to President Obama’s 2014 revision of immigration policy, in the case of United States v. Texas.

Denniston, A Break With Custom for Opinion Release, SCOTUSBlog.com (April 15, 2016)

SENTENCING COMMISSION CHALLENGES BOP PRIMACY ON COMPASSIONATE RELEASE

Last Friday’s Sentencing Commission proposal to change the standards by which the BOP picks inmate candidates for compassionate release under 18 U.S.C. § 3582(c)(1) is a shot across the BOP’s bow, but whether the proposal leads to any change is far from settled.

Last February, during a hearing on compassionate release, the Sentencing Commission was openly skeptical of the BOP’s claim that it alone was entitled to set standards for compassionate release. The Commission’s proposed amendments last week clearly marked its territory, asserting that “Congress charged the Commission with issuing policy statements describing what should be considered extraordinary and compelling reasons for a sentencing reduction.”

Under the proposed amendment, federal inmates should be proposed for compassionate release if they fall into one of four broad categories: (1) medical condition; (2) age; (3) family circumstances; or (4) other reasons:

•   As proposed, the “medical condition” factor would apply where the inmate either had a terminal illness, suffered from a serious condition, suffered from a serious functional or cognitive impairment, or was experiencing deteriorating health because of age that substantially diminished the defendant’s ability to provide self-care within a correctional facility and from which the inmate was not expected to recover. The proposed Guideline defines a “terminal illness” as a “serious and advanced illness with an end of life trajectory.” Unlike current BOP standards, the proposed Guideline says “a specific prognosis of life expectancy (i.e., a probability of death within a specific time period) is not required.”

•   “Age of the defendant” would apply if the defendant is at least 65, has a serious deterioration in physical or mental health because of the aging process, and has served at least 10 years or 75 percent of his or her term of imprisonment (whichever is less).

•   “Family circumstances” would apply to the incapacitation of the caregiver of the defendant’s minor child, or to the incapacitation of the defendant’s spouse or registered partner when the defendant would be the only available caregiver.

•   “Other reasons” permit the Bureau of Prisons to determine that, in any particular defendant’s case, an extraordinary and compelling reason other than (or in combination with) a reason identified by the Commission exists.

So this sounds like great news, right? It does, except for one fly in the ointment. BOP witnesses told the Commission last February that only the BOP Director has the right to define what constitutes “extraordinary and compelling reasons” under the statute, and the Sentencing Commission should butt out. For that matter, the BOP said, it rejected the DOJ inspector general’s critical report in May 2015 that the Bureau had “poorly managed” the compassionate release program, and had eligibility requirements for both medical and non-medical provisions that were “unclear” and “confusing.”

The proposed Guidelines amendment “encourages the Director of the Bureau of Prisons to file a motion if the defendant meets any of the circumstances” defined by the Guidelines, and to let the courts decide “whether the circumstances warrant a reduction.” In other words, the BOP filing should be automatic whenever an inmate is eligible, rather than the discretion-ridden system used today.

Unfortunately, for the BOP to follow the Guidelines’ suggestion (and thus improve on its 7% approval rate on compassionate release requests since 2013), the agency will first have to surrender its current position that it alone may decide whether an inmate is entitled to compassionate release.

Sentencing Commission, 2016 Proposed Amendments                                 to Sentencing Guidelines (Apr. 15, 2016)

U.S. Department of Justice, Office of the Inspector General, The Impact of the Aging Inmate Population on the Federal Bureau of Prisons (May 2015)

IS SENTENCING REFORM BEING WATERED DOWN?

The Sentencing Reform and Corrections Act of 2015, before the Senate as S. 2123, and before the House as H.R. 3713, remained stalled last week, with the Senate bill holding at 28 cosponsors. The House version of the bill picked up one additional sponsor – a Democrat from Iowa – and now has 64.

The liberal political magazine The American Prospect last week admitted that “the death of Supreme Court Justice Antonin Scalia and the subsequent battle over President Obama’s pick to replace him have distracted Republicans from sentencing reform,” but nevertheless said that “although momentum has slowed on a plan that could have attracted strong bipartisan support, criminal justice reform advocates believe that the lull may help federal lawmakers craft a more popular package.”

Last week, lawmakers got a sense of what that “more popular package” may look like, as some Senate Republicans released a proposal that would substantially water down the retroactive relief contained in S. 2123 as currently written.

The conservative newspaper Washington Examiner reported that Senate Majority Whip John Cornyn (R-Texas), Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa), and Sen. Mike Lee, (R-Utah), the leading architects of the bill, are circulating updated version of the legislation and a background memo to their Republican colleagues who they see as most likely to back the legislation.

There are two problems: First, this is an election year. Second, we have Willie Horton. Horton was a Massachusetts murderer serving natural life who was released for a weekend furlough back in 1986. Unsurprisingly, he never returned to prison, and later committed rape and robbery in Maryland. During the 1988 presidential campaign, Republicans hung the blame for Willie Horton’s release on Democratic presidential candidate Michael Dukakis, who was governor of Massachusetts at the time (despite the fact the furlough was not his program). Since that time, “Willie Horton” has become shorthand for every politician’s fear that any criminal justice reform he or she has supported will release a Willie Horton, and the blame will blow back during the reelection campaign.

As we reported in January, the Sentencing Reform and Corrections Act already has its own Willie Horton, a Columbus, Ohio, man named Wendell Callahan. In 2007, a federal court sentenced Callahan to 150 months for selling crack. Wendell’s time was first cut to 110 months because of the 2007 reduction in the crack Guidelines, and then – three years later –another 10 months were lopped off because of the second drug guideline reduction. Callahan was released in August 2014.

In January, Wendell was charged with stabbing his ex-girlfriend and her two young daughters to death. The Columbus Dispatch reported that Wendell “likely would have been deep into a 12 1/2-year federal prison sentence if sentencing guidelines for convicted crack dealers had remained unchanged.”

“Every one of us who votes to release violent criminals from prison prior to the expiration of their sentence can fully expect to be held accountable by our constituents,” Sen. Ted Cruz (R-Texas) said last year during a Judiciary Committee hearing on the bill. Lee and other proponents of the bill say that charge was unfair, in part because the prisoners who applied for early released had to win the approval of a judge. “It is simply incorrect to say that this suddenly releases a bunch of violent criminals,” Lee replied.

Nevertheless, the document circulated last week proposes changes designed to blunt any “Willie Horton” attacks. Most notably, the proposal deletes a section of the bill that would have both lowered mandatory minimum sentences from 15 to 10 years under the Armed Career Criminal Act and made the change retroactive to prisoners already convicted.

Also, the bill as written would change the law to require that the increased penalties for a second conviction for carrying a gun during a crime (18 U.S.C. § 924(c)) only apply after a prior conviction.  Right now, if someone carries a gun during a drug sale today, and then does it again tomorrow, he faces a mandatory minimum of 30 years – five for today’s gun and 25 for tomorrow’s gun. The proposed bill makes clear that a defendant must be convicted for the first 924(c) before a second 924(c) could trigger a higher mandatory minimum. The bill as written would let people who are serving such sentences apply for a sentence reduction, but the new proposal would change the bill to “prohibit any retroactive relief for any offender convicted of any serious violent felony,” according to the background memo. That leaves reformers in the uncomfortable position of arguing that a low-level drug dealer armed with a weapon shouldn’t count as a violent offender, because the law generally reserves that title for people who commit violent acts.

Even the watered-down bill may not go far enough for Republican opponents. A Republican senate aide told The Daily Caller last week that Callahan had not been classified as a violent offender, so the idea that the revised legislation being proposed “would somehow prevent the early release of violent criminals like Wendell Callahan is an affront to the facts.”

Opponents complain that “the bill will over-expand judicial discretion to apply the leniency of the ‘safety valve’ to major drug traffickers, including those with multiple prior criminal convictions. Under current law, the safety valve permits minor participants in drug trafficking crimes with minor criminal records to reduce their sentencing exposure to avoid mandatory minimum sentences, even if they choose not to cooperate.”

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 we can help you, we’ll tell you that. If what you want to do is futile, we’ll tell you that, too.

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

Would you like a copy of this newsletter in PDF format?  Click here.

JUDGE DECLARES FLYING SPAGHETTI MONSTER NOT A DEITY

Steven Cavanaugh, a Nebraska state inmate, sued under the 1st Amendment and the Religious Land Use and Institutionalized Persons Act because officials wouldn’t let him wear pirate duds, worship the Flying Spaghetti Monster (FSM), or take part in other Pastafarian pleasures. He said that the prison was violating his constitutional right to practice his religion.

Last month, U.S. District Judge John Gerrard (already in the news for his opposition to mandatory minimum sentences) denied Cavanaugh’s motion: “What drives the FSM’s devout followers, aka Pastafarians?” the Judge’s opinion asked. “Some say it’s the assuring touch from the FSM’s Noodly Appendage. There are those who love the worship service, which is conducted in Pirate-Speak and attended by congregants in dashing buccaneer garb. Still others are drawn to the Church’s flimsy moral standards, religious holidays every Friday, and the fact that Pastafarian Heaven is way cooler. Does your Heaven have a Stripper Factory and a Beer Volcano? Intelligent Design has finally met its match—and it has nothing to do with apes or the Olive Garden of Eden.”

But after examining the elements constituting religious beliefs, the Judge decided that Pastafarianism is not a religion, only a parody made to look like one. “This is not a question of theology,” the Court wrote. “It is a matter of basic reading comprehension… it is evident to the Court that FSMism is not a belief system addressing ‘deep and imponderable’ matters: it is… a satirical rejoinder to a certain strain of religious argument… Nor, however, does FSMism advocate for humanism or atheism… Those belief systems, although not theistic, still deal with issues of ‘ultimate concern’ and take a position ‘on religion, the existence and importance of a supreme being, and a code of ethics.’ FSMism takes no such position: the only position it takes is that others’ religious beliefs should not be presented as ‘science.’ Despite touching upon religion, that is a secular argument.”

Cavanaugh v. Bartelt, Case No. 4:14-CV-3183                                          (D.Neb. Apr. 12, 2016)