This week:

Check the Box

Sentencing Commission To Hold Public Hearing On Compassionate

Release Proposal

Congress Finds Another Way To Demonize Sex Offenders

Fox Hired To Guard Henhouse

It Means What It Says

Paper Examines Change In Thinking On Prosecutorial Misconduct

Sentencing Reform Meets Willie Horton

CHECK THE BOX

When Kaylon Pruitt heard someone pounding on the door, he suspected the worst and met the intruder armed with a shotgun. Actually, it was worse than he suspected: the man at the door was a probation officer, there to check on Kaylon’s housemate. The officer disarmed Kaylon, who was promptly charged with being a felon-in-possession, due to a prior South Carolina burglary conviction.

Kaylon was sentenced to 46 months, the top of his Guidelines range, maybe because authorities found drugs, maybe because while he was in pretrial lockup, he tried to grope a nurse who was giving him a shot. No one was really sure, because the judge didn’t explain her reasons. She just checked the box on the sentencing form that Kaylon’s sentence was within his Guidelines range.

The Second Circuit upheld his sentence last week, but the appeals court took the opportunity to complain that the sentencing form required by law encourages judges to give short shrift to explaining the sentences they impose, and was designed by the Sentencing Commission to drive judges to give Guidelines sentences as the path of least resistance.

The Court complained “that no reasons need be provided for such within‐range sentences; presumably they are considered reasonable because they are within the range. Though we understand that this aspect of the Statement of Reasons form implicates broader issues as well, our focus here is quite narrow: § 3553(c) requires a statement of reasons for every sentence, and the Supreme Court has made it clear that a sentencing judge must never presume that a within‐range sentence is reasonable. Because the Statement of Reasons form undermines both of those mandates, we respectfully suggest … that it be amended accordingly.”

United States v. Pruitt, Case No. 14-1921 (2nd Cir. Feb. 1, 2016)

SENTENCING COMMISSION TO HOLD PUBLIC HEARING ON COMPASSIONATE RELEASE PROPOSAL

The U.S. Sentencing Commission has set a public hearing for Feb. 17 on proposed changes to its compassionate release policy statement.
USSG Sec. 1B1.13, directs the BOP to propose compassionate release for “extraordinary and compelling reasons.” The Commission wants to expand the definition of such reasons to include (1) that the prisoner is 65 years old, has a chronic or serious medical condition from which he will not get better, and has served half his sentence; (2) that the prisoner is 65 and has served the 75 percent of his sentence (at least 10 years); or (3) the death or incapacity of the prisoner’s spouse or caregiver of the prisoner’s child.

United States Sentencing Commission, Agenda of Meeting Feb. 17, 2016 (issued Feb. 4, 2016)

CONGRESS FINDS ANOTHER WAY TO DEMONIZE SEX OFFENDERS

A bill requiring the State Department to identify registered sex offenders with a special mark on their passports passed Congress last Monday and went to President Obama’s desk, who has not yet said whether he will sign the bill.

Called the “Inter-national Megan’s Law”, the bill provides that offenders’ passports contain a “unique identifier” — as yet unspecified – to alert other countries that the passport holder is a registered sex offender.

Critics call the passport designator a scarlet letter. “Who is going to have a unique identifier added to their passport next? Is it going to be Muslims? Is it going to be gays?” asks one civil rights attorney who has fought against sex offender registries.

FOX HIRED TO GUARD HENHOUSE

The Justice Department has named Robert Zauzmer, a long-time Philadelphia AUSA, to head the DOJ pardon office, still buried under a 9,000-petition backlog.

NPR reported last week that “Justice Department leaders said Zauzmer represented a ‘natural choice’ for the pardon job because of his experience training AUSAs all over the country in how to evaluate prisoners’ requests for early release.”

“There were many occasions over the years where I saw these sentences of 20, 30 years, life imprisonment imposed on low-level offenders based on mandatory sentencing laws that troubled me,” Zauzmer told NPR. “Prosecutors are very knowledgeable about these cases and about the laws and about the need to do justice. They are passionate about this, and they are dedicated to doing the right thing and correcting any erroneous sentences that need to be corrected, and I am equally passionate about it.”

IT MEANS WHAT IT SAYS

At the high end of the Guidelines, sentencing ranges sometimes remain the same for several levels. Thus, sometimes happens when the Guidelines change, an inmate’s level drops but his sentencing range remains the same. Shouldn’t he get a break anyway?

Nope. Lawrence McCarroll was convicted of running a Walmart-scale heroin operation. His offense level of 42 set his sentencing range at 360 months to life. The court gave him 396. Now, after Amendment 782, his offense level fell to 40, but with the same 360-life range.

McCarroll argued that the lower level meant he should be resentenced to 360 months. No dice, the 7th Circuit said last week. Under 18 USC § 3582(c)(2), a prisoner can get a sentence cut only if he was sentenced “to a term of imprisonment based on a sentencing range that has subsequently been lowered …” McCarroll’s Guideline offense level fell, but not his sentencing range, making him ineligible for the reduction.

United States v. McCarroll, Case No. 15-2492 (7th Cir. Feb 3., 2016)

PAPER EXAMINES CHANGE IN THINKING ON PROSECUTORIAL MISCONDUCT

Two Fordham law professors have published an article examining accountability for prosecutorial misconduct. The paper, “Prosecutorial Accountability 2.0,” argues that a significant evolution in public thinking over the last 50 years has led to “increasing segments of the public and judiciary now accept[ing] that prosecutorial misconduct is systemic; it calls for systemic remedies; and it includes negligent wrongdoing, abuses of discretion, and failures of supervision.”

Green and Yaroshefsky, Prosecutorial Accountability 2.0, Fordham Law School (Jan. 26, 2016)

SENTENCING REFORM MEETS WILLIE HORTON

If the Sentencing Reform and Corrections Act of 2015, known on Capitol Hill as “Sriracha,” fails to pass this year, thank Wendell Callahan.

Remember Willie Horton? Back in 1988, the convicted murderer, who was doing life without parole, got a weekend furlough from a Massachusetts prison. He ran off, raping and murdering until he was caught in Maryland. Republicans beat Massachusetts Gov. Mike Dukakis – a Democrat running for president – over the head with the story, accusing him of being soft on crime. Dukakis was soundly beaten by George H.W. Bush.

Now Sriracha has Wendell Callahan. In 2007, the federal court in Columbus, Ohio, sentenced Callahan to 150 months for selling crack. Wendell’s time was then cut to 110 months because of the 2007 reduction in the crack Guidelines. Three years after that, another 10 months were lopped off because of the second drug guideline reduction. Wendell was released in August 2014.

A few weeks ago, 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.”

The political website Politico has already cited the triple murder case as a complicating factor in the effort to pass Sriracha. A conservative organization, Americans for Limited Government, is throttling the Wendell Callahan case, attacking Sen. John Cornyn (R-Texas) for working with Sen. Mike Lee (R-Utah) to pass the bill.

Sen. Cornyn, a former Texas judge and attorney general, the number two Senate Republican and a principal Sriracha author, is trying to address fears from other Republicans that passage of the bill could free dangerous offenders and tarnish the party’s law-and-order image.

Acknowledging the skepticism that people like Wendell Callahan help to create, Sen. Cornyn told the New York Times last week that he wants to dispel the myth being pandered by Sen. Ted Cruz and others that Sriracha will not throw open the gates of federal prisons. “Nobody is getting out of jail free, which is some of the characterization that is out there,” Sen. Cornyn said.

Fresh off his surprise win in Iowa, presidential candidate Cruz – who once supported the Smarter Sentencing Act – flipped on the criminal justice issue last fall, voting against Sriracha in the Judiciary Committee because he objected to two aspects of the bill: “retroactivity” and reduced penalties for “criminals who have used a firearm in the commission of a crime.”

Sen. Cruz argues that some of the prisoners released under retro-active provisions of Sriracha may be guilty of violent crimes. “None of us know what those federal prisoners did,” he said last October. “None of us know what the underlying conduct was that prosecutors may have plea-bargained down.” But as a commentator in Reason magazine observed last week, “a prisoner eligible for resentencing gets out early only if a judge decides it’s appropriate, and the judge can consider aspects of his record that may not be reflected in his current sentence.”

Although Sriracha has not yet been scheduled for a vote in the House or the Senate, the House version (H.R. 3713) picked up three additional sponsors last week, two Democrats and a Republican. Still, commentators are generally observing that momentum for the criminal justice legislation is slowing down.

Meanwhile, billionaire Charles Koch — one of Sriracha’s biggest supporters — continues to make the case for it. “You smoke a joint or violate some regulation … get arrested, put in prison and then come out, can’t get a job, so this destroys opportunities and makes the community less safe because you go in — and weren’t really criminals — and you are trying to get a job, so you steal if you can’t,” Koch told donors at the winter meeting of his affiliated political network last week. Koch views changes to the criminal justice system as crucial to putting the country back on the right track.

Senator Orrin Hatch (R-Utah) said in the Wall Street Journal last week that “a default criminal-intent standard is essential because Congress has departed from fundamental legal principles by creating crimes that don’t require proof of criminal intent. Activities like walking a dog in a federal park on a leash longer than six feet, using a surfboard in a federally designated swimming area and using the 4-H Club logo without authorization are all now federal crimes regardless of a person’s intent. If legislators wish to dispense with criminal-intent requirements, my bill forces them to do so explicitly. Too much is at stake to allow congressional inattention, or sloppy drafting, to deny individuals the rightful protections that criminal-intent requirements provide.”

The Wall Street Journal itself editorialized last Saturday that “the necessity of proving that the accused has a guilty mind doesn’t merely apply to white-collar defendants. In June 2015 [] Supreme Court Chief Justice John Roberts wrote, “the ‘general rule’ is that a guilty mind is ‘a necessary element in the indictment and proof of every crime.’” The problem under current federal law is that such precedents aren’t enough to stop prosecutors from exploiting statutes that don’t have an explicit guilty-mind standard. As criminal laws have proliferated, more Americans are indicted for breaking laws that they never knew existed or that were written for purposes far from how prosecutors use them …”

Prominent Democrats also talked up the prospects for sentencing reform during the Democrats’ annual issues conference in Baltimore last week. Congressman Elijah Cummings (D-Maryland) led a session on particulars of criminal justice reform during the retreat. Later, President Barack Obama addressed the issue himself, telling the conference that Congress is not going to get much done this year, but it could effectively address two areas: criminal justice reform and opioids.

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.

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

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

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

This week:

Supreme Court Montgomery Decision Hints At Johnson Retroactivity

EDNY Court Sentences Child Pornography Downloader To 5 Days Of Jail

Obama Administration Pushes Changes In Use Of SHU

Gunning for the Guidelines: First Circuit Rules That Johnson Means Guidelines “Career Offender” Residual Clause Is Unconstitutional

Federal Corrections Task Force Issues Reform Recommendations

No Sriracha Action On Capitol Hill, But Plenty Of Drama

SUPREME COURT MONTGOMERY DECISION HINTS AT JOHNSON RETROACTIVITY

The Supreme Court last week held in that its prior decision declaring automatic life sentences without parole for juveniles unconstitutional – Miller v. Florida – was retroactive to cases that were already final when it was decided.

Last week’s decision is good news for the pending Welch case, in which the Supreme Court must decide whether the 2015 Johnson v. United States (holding that the Armed Career Criminal Act’s residual clause is unconstitutional) should apply retroactively.

The Supreme Court used last week’s opinion to explain its approach to retroactivity. The Court said cases adopting a “substantive rule,” one that sets forth “categorical constitutional guarantees that place certain criminal laws and punishments altogether beyond the government’s power to impose,” would be retroactive. The Court said that when the government “enforces a proscription or penalty barred by the Constitution, the resulting conviction or sentence is, by definition, unlawful. Procedural rules, in contrast, are designed to enhance the accuracy of a conviction or sentence by regulating the manner of determining the defendant’s culpability. Those rules ‘merely raise the possibility that someone convicted with use of the invalidated procedure might have been acquitted otherwise’.”

Applying this rationale to the Supreme Court’s Johnson ruling suggests that it is likely that that decision – which adopted the substantive rule that a crime cresting a substantial risk of harm is not a violent crime – will be declared retroactive when the Supreme Court rules on Welch in the next five months.

Montgomery v. Louisiana, Case No. 14–280 (Jan. 25, 2016)

EDNY COURT SENTENCES CHILD PORNOGRAPHY DOWN-LOADER TO 5 DAYS OF JAIL

Judge Jack B. Weinstein, one of a handful of Federal district judges known for thoughtful sentencing, has sentenced a child porn defendant to 5 days in jail, 7 years of supervised release and about $15,000 in fines and restitution.

In a 100-page Statement of Reasons issued last week, Judge Weinstein – who sits on the Eastern District of New York bench – said that the defendant, R.V., had pled guilty to a single count of possession of child pornography in violation of 18 U.S.C. Sec. 2252(a)(4)(B).  R.V. had never had inappropriate sexual contact with any minor, and expert testimony showed he posed no danger to children. The judge said that in light of his children’s and spouse’s demonstrated need for his presence at home, R.V. should be sentenced to time-served of 5 days. R.V.’s guidelines imprisonment range was 78-97 months.

The judge argued that the “failure to distinguish among the multitude of vectors involved in a sentencing decision is particularly grave in the field of child pornography offenses. To be adjudicated guilty necessarily results in denomination as a sex offender; automatically provided is a lifetime of continuous punishment—being marked as a pariah with severe restrictions on residence, movements, activities and associations. Adding unnecessary, unduly long, periods of incarceration is inappropriate …”

United States v. R.V., Case No. 14-CR-0316 (E.D.N.Y., Jan. 22, 2016)

OBAMA ADMINISTRATION PUSHES CHANGES IN USE OF SHU

In an op-ed column appearing in last Tuesday’s Washington Post, President Obama announced limits to the BOP’s use of segregated and disciplinary housing for investigations and as punishment.

The new policies also dictate that the longest a prisoner can be punished with solitary confinement for a first offense is cut to 60 days from 365 days. The president’s reforms apply to about 10,000 federal inmates serving time in solitary confinement.

A DOJ paper released the same day announced “guiding principles,” including

• limiting the use of the SHU as a form of punishment. Recommended changes include reductions of maximum penalties for disciplinary segregation, a ban on the use of the SHU for low-level offenses, and limitations on the use of “investigative” segregation, including a new requirement that routine investigations be completed within 7 days and all other investigations be completed within 30 days, absent compelling circumstances.

• setting policies to discourage placing inmates in the SHU during the final 180 days of their prison terms; and

• directing wardens to develop institution-specific plans for expanding out-of-cell time for SHU inmates, based on staffing and resource capacity.

How these principles will be implemented by the BOP is not yet clear. As of the end of last week, the BOP had not proposed any changes to its rules on use of the SHU for investigation or punishment.

Department of Justice, Report and Recommendations Concerning the Use of Restrictive Housing – Guiding Principles (January 25, 2016)

GUNNING FOR THE GUIDELINES: FIRST CIRCUIT RULES THAT JOHNSON MEANS GUIDELINES “CAREER OFFENDER” RESIDUAL CLAUSE IS UNCONSTITUTIONAL

Anthony Soto-Rivera was a do-it-yourself tinkerer … or maybe just unlucky. Whatever the reason, he was caught carrying a Glock 23 handgun that fired full auto. That made the pistol a “machinegun” for purposes of 18 U.S.C. Sec. 922(o).

Anthony had prior convictions for drug trafficking and violence. Under Chapter 4B1.1 of the Guidelines, anyone with two prior drug or violent felonies who is convicted of a third such offense is sentenced as a “career offender,” with a much higher sentencing range. A “violent felony” for purposes of the “career offender” guidelines is the same as the definition in the Armed Career Criminal Act.

The district court held that Anthony’s possession of a machinegun was a violent crime under the residual clause. However, while his appeal was pending, the Supreme Court ruled in Johnson v. United States that the ACCA’s residual clause was unconstitutionally vague.
Anthony promptly asked the 1st Circuit to throw out his “career offender” sentence. The Government conceded that Johnson invalidated the “career offender” residual clause, but argued that other language in the Guideline made possession of a machinegun a violent crime.

Last week, the Court of Appeals sided with Anthony. It accepted the parties’ view that Johnson invalidated the “career offender” residual clause without specifically ruling on whether it did. The Court noted that the 11th Circuit has ruled that Johnson did not apply to the “career offender” residual clause, but said the 11th’s reasoning “appears well on its way to becoming a minority view.” The 6th, the 8th and the 10th Circuits have all held that the residual clause in the Guidelines is unconstitutional in light of Johnson. The 1st Circuit left little doubt that, if the Government had not conceded the point in this case, it would have ruled that way as well.

It is entirely possible that the application of Johnson to “career offender” cases will find its way to the Supreme Court. Such review will not happen before the one-year deadline to file for Sec. 2255 relief under Johnson, which falls on June 26, 2016.

United States v. Soto-Rivera, Case No. 14-1216 (1st Circuit, Jan. 22, 2016)

FEDERAL CORRECTIONS TASK FORCE ISSUES REFORM RECOMMENDATIONS

Even as debate on sentencing reform raged last week, some bold recommendations issued from a congressionally mandated blue ribbon panel.

The Charles Colson Task Force on Federal Correc-tions – established by Congress in 2014 due to concerns about the cost and scale of the BOP – issued its report, Transforming Prisons, Restoring Lives, last Tuesday. The report estimated that its recommendations would reduce the federal prison population by 60,000 over the coming years and save over $5 billion.

The recommendations include

• using mandatory minimums for only the most serious drug traffickers and felons, and giving judges more discretion to consider the specific circumstances of each defendant and case when imposing sentence;

• having the BOP “ensure that programming is allocated in accordance with individual risk and needs,” including programming tailored to individual inmate needs and encouraging more and better contact with family; and

• having the BOP give inmates good time for completing “risk-reducing” programs like addiction treatment, cognitive behavioral therapy, educational classes, faith-based programs and other self-betterment activities.

The recommendations are part of Congress’ effort to pass the Sentencing Reform and Corrections Act of 2015.

Charles Colson Task Force on Federal Corrections, Transforming Prisons, Restoring Lives (Jan. 26, 2016)

NO SRIRACHA ACTION ON CAPITOL HILL, BUT PLENTY OF DRAMA

The Sentencing Reform and Corrections Act of 2015 (“Sriracha”) has yet to make it to the Congressional floor for a vote, and some critics are blaming conservatives for stalling efforts to get it there.

Freshman Republican Senator Tom Cotton (Arkansas), described by Politico as a “hawkish upstart,” pushed hard last week to kill Sriracha. Tensions over the bill, that effectively loosens some mandatory minimum sentences, spilled over during a party lunch last week, when Cotton lobbied his colleagues heavily against the legislation.

Cotton later told Politico “it would be very dangerous and unwise to proceed with the Senate Judiciary bill, which would lead to the release of thousands of violent felons. I think it’s no surprise that Republicans are divided on this question … [but] I don’t think any Republicans want legislation that is going to let out violent felons, which this bill would do.” His attempted rebellion against what has up to now been a bipartisan measure led Esquire magazine to run a story with the depressing title, Why Bipartisan Criminal Justice Reform Was Always a Pipe Dream.

On the Presidential campaign trail, some observers are noting that Republican Sen. Ted Cruz (Texas), once a leading Republican advocate of sentencing reform, has repositioned himself as an opponent. Cruz is warning that letting federal prisoners out early will lead to an increase in crime. His reversal is especially startling, one commentator said last week, because the bill that Cruz opposes as dangerously soft on crime is less ambitious than the one he proudly cosponsored in spring 2014. In Reason Magazine online, Jacob Sullum wrote last Monday that “if Congress determines that certain sentences are unjust, it hardly seems fair that current prisoners should be forced to complete them. In any event, retroactivity did not seem to bother Cruz when it was included in the Smarter Sentencing Act, which like Grassley’s bill would allow currently imprisoned crack offenders to seek shorter terms under the rules enacted in 2010. According to Families Against Mandatory Minimums, that provision alone could affect up to 6,500 prisoners. Yet Cruz complains that ‘7,082 federal prisoners would be eligible for release’ under Grassley’s bill.”

The news last week wasn’t all bad. During Thursday’s Republican presidential candidates’ debate – the one Donald Trump skipped – Sen. Rand Paul (Ky.) and Sen. Mark Rubio (Fla.) voiced their support for Sriracha. Paul said, “I think the war on drugs has disproportionately impacted our African-American community. What we need to do is make sure the war on drugs is equal protection under the law and that we don’t unfairly incarcerate another generation of African-American males.”

In Illinois, civil rights and faith leaders are pushing Republican Sen. Mark Kirk to support Sriracha. Kirk, who faces a tough reelection race this year in blue-leaning Illinois, has not yet backed the reform bill.

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

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

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

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

This week:

Just Sayin’

FBI Admits To Being Child Porn Site Operator

Supreme Court Grants Review Of Another ACCA Case

Are You Disrespectin’ Me?

11th Circuit To Sit On Johnson Second-And-Successive Motions Pending Supreme Court Decision In Welch

Sentencing Commission Seems Focused On Easing Compassionate Release Guidelines

Action On Sentencing Reform Jeopardized By Mens Rea Debate

JUST SAYIN’

Crack cocaine  entrepreneur Lamont Robinson did what 94 percent of all Federal defendants did – he cut a deal. His plea agreement was comprehensive, stipulating criminal history, drug quantity involved in the offense, and agreed-on sentencing range.

The government and Lamont also agreed that, “neither a downward nor an upward departure from the Stipulated Guidelines Range . . . is warranted,” and that “neither party will seek any departure or adjustment pursuant to the Guidelines that is not set forth herein . . . [n]or . . . suggest that the Court sua sponte consider any such departure or adjustment.” (“Sua sponte” means “on its own motion”).

Despite the rather straightforward language in the plea agreement, the AUSA argued in his sentencing memo under that Lamont “was an active, managing member of the” criminal conspiracy and that he “held a managerial role” in the conspiracy. The sentencing judge heard the words “managerial role” and decided to add a 2-level enhancement regardless of what the parties had agreed to.

Lamont cried foul. The government argued it had not asked for the leader/manager adjustment, but instead was just arguing for the high end of the sentencing range. “You know,” the AUSA seemed to smarm, “I’m just sayin’.”

The 2nd Circuit agreed with Lamont’s Sec. 2255 claim that the Feds breached the plea agreement, and sent his case back for resentencing in front of a new judge. The Court said “the government used the Guidelines’ term of art “manager,” in an entirely conclusory fashion, to describe his conduct. Using the terminology of the Guidelines’ provision to characterize [Lamont’s] role, without reference to a single fact supporting that characterization, could have served no purpose other than to call the district court’s attention to the possibility of a role enhancement – in effect, to argue for that enhancement. The government’s disclaimers to the contrary do not insulate its conduct.”

United States v. Robinson, Case No. 13-3683-cr (2nd Circuit, Jan. 15, 2016)

FBI ADMITS TO BEING CHILD PORN SITE OPERATOR

For nearly two weeks last year, the FBI operated one of the Internet’s largest child pornography websites, allowing users to download thousands of illicit images and videos from a government site in the Washington suburbs.

USA Today reported last Friday that the operation — details of which remain secret — was at least the third time the FBI has taken control of a child pornography site but left it online in an attempt to catch users. In each case, the FBI infected the sites with software that enabled agents to identify hundreds of users.

DOJ has acknowledged in court filings that the FBI operated the site, known as Playpen, in February 2015. At the time, the site had over 215,000 users and links to more than 23,000 sexually explicit images and videos, including more than 9,000 files that users could download directly from the FBI.

Previously, agents were told they should not allow images of child porn to become public. The Justice Department has said that once those images leave the government’s control, no one can stop them from being copied and re-copied to other parts of the Internet. Officials acknowledged the risks, but said they had no other way to identify the people accessing the sites.

SUPREME COURT GRANTS REVIEW OF ANOTHER ACCA CASE

The Supreme Court last week granted review of another ACCA case, this one from the 8th Circuit.

The issue may seem arcane, but it’s not. Under the ACCA, anyone caught with a gun after getting convicted of three drug trafficking or violent crimes gets a mandatory minimum 15-year sentence. Four qualifying violent crimes are identified by name: burglary, arson, extortion or use of explosives. However, courts have ruled that the only burglaries that count must contain all of the elements of traditional, common law burglary – entering or staying in a building with the intent of committing a felony.

A lot of people have gotten breaks because some state burglary statutes define “building” too broadly, to include, for example, a car or a boat. If the statute says “building or vessel or boat” (that is, defines the element alternatively), the courts can look at the state court record to see which of the three the defendant broke into. But if the statute only says “building,” and “building” is identified elsewhere in the statute as “structure, car or vessel,” the statute itself is too broad for an ACCA predicate, and courts cannot save it by looking at the state court record.

The central elements of burglary – (1) entering or staying (2) in a building (3) without authorization (4) to commit a felony – have to be proven to a jury beyond a reasonable doubt. But sometimes, definitions are found elsewhere in the criminal code that are treated just as “means” and not elements. Mathis is an 8th Circuit case in which the definition of “occupied structure” in the burglary statute is much too broad for a conviction to be used as an ACCA predicate. However, another Iowa statute defined “occupied structure” alternatively. The issue in Mathis is whether a Federal court has to decide whether a crime counts under the ACCA solely by reading the statute in question, or whether it can shop its way through a state’s entire criminal code for other definitions. Relying on the state’s whole criminal code makes it easier to find that a prior state conviction qualifies as an ACCA predicate.

Mathis will probably be decided by the end of June.

Mathis v. United States, Case No. 15-6092 (Jan. 19, 2016)

ARE YOU DISRESPECTIN’ ME?

Arnaldo Cabrera’s decision to buy a gun for a government informant was not very smart. The judge at HIS felon-in-possession trial did not think much of Arnaldo’s claim that the cops had doctored a recording of the transaction, either.

Arnaldo did not testify in support of his tape-doctoring theory (for which the evidence was tissue thin). At senten-cing, the judge increased Cabrera’s sentence be-cause of his “fantastic” claim that the tape was altered, and because Cabrera did not testify in support of his claim. The judge told Arnaldo that his behavior had “evinced a pretty complete disrespect for the law and for these proceedings generally.”

Last Friday, the 6^th Circuit threw out the sentence, holding that the district judge wrongly punished Cabrera for exercising his 5th Amendment right against self-incrimination by raising his sentence because he had not testified.

The opinion also held that sentencing Cabrera higher for raising the tape-doctoring claim punished him for exercising his 6^th Amendment right to defend himself. A defendant has “the right to challenge the State’s case against him using the arguments he sees fit,” the 6^th Circuit said, and Cabrera “plainly had a right to test the government’s case by raising the arguments he considered meritorious.”

United States v. Cabrera, Case No. 14-5572 (6^th Cir., Jan. 22, 2016)

11TH CIRCUIT TO SIT ON JOHNSON SECOND-AND-SUCCESSIVE MOTIONS PENDING SUPREME COURT DECISION IN WELCH

The 11th Circuit ruled last Thursday it would hold motions filed by ACCA prisoners seeking permission to file a second Sec. 2255 motion raising Johnson until the Supreme Court rules on Welch v. United States.

Earlier this month, the Supreme Court announced it would hear Welch, and decide whether last summer’s ruling in Johnson v. United States would retroactively apply to inmates whose ACCA sentences were already final.

The 11th Circuit already held that Johnson is not retroactive, but – recognizing that the Supreme Court may well overrule it – the Court of Appeals has decided it will sit on motions filed by inmates who want permission under 28 U.S.C. Sec. 2244(b) to file a second and successive Sec. 2255 motion until the Supreme Court rules on Johnson retroactivity in Welch. That decision is expected by June.

In re Anthony Johnson, Case No. 16-10011 (11th Cir. 2016)

SENTENCING COMMISSION SEEMS FOCUSED ON EASING COMPASSIONATE RELEASE GUIDELINES

The U.S. Sentencing Commission has tucked an overhaul to compassionate-release guidelines into the proposed 2016 amendments published Jan. 15 in the Federal Register. The change would substantially expand the possibility for aging or sick inmates to be released early.

The Commission has asked for comments on the new guidelines, along with all of the other proposed 2016 amendments, by March 21, 2016.

The compassionate release proposal creates new avenues for release due to age or sickness. If the language is adopted as written — and it could still change significantly — it would cut a key release threshold from 30 years served to 10 years served. and would acknowledge the merit of compassionately releasing inmates who have previously been ignored or denied. The elderly and sick are high on the list.

Under a sample proposal on which the commission almost begged the public to provide guidance, inmates could get their freedom if they have 18 months or less to live; if they have an incurable, progressive illness; if they have a debilitating injury they would not recover from; or if they are 65 or older and have served at least 10 years or 75 percent of their sentence.

United States Sentencing Commission, Notice Of Proposed Amendments To Sentencing Guidelines, 81 Fed.Reg. 2295 (Jan. 15, 2016)

ACTION ON SENTENCING REFORM JEOPARDIZED BY MENS REA DEBATE

The Sentencing Reform and Correction Act (“Sriracha”) still is on top of a short list of significant legislation Congress might actually pass in this election year, but a Capitol Hill hearing last Wednesday showed just how tenuous even that bill’s chances are in a bitterly divided Congress.

Last week, the Senate Judiciary Committee heard testimony on a narrow but crucial issue that has emerged as the main political obstacle to criminal justice reform: to what degree prosecutors must prove a defendant’s criminal intent in order to win convictions for certain federal crimes.

For some crimes, federal prosecutors must establish the defendant’s willful intent to break the law — his or her mens rea, or “guilty mind,” in its common legal formulation. But many crimes defined in federal statutes and regulations (and no one knows just how many) do not include willfulness as part of the elements of the offense. This means a jury doesn’t necessarily need to be convinced that defendants knew what they were doing was a crime. A coalition of mainly conservative lawmakers and activists are leading an effort to include a willfulness requirement in S. 2123.

Congressman Bob Goodlatte argued last week in Politico, a political news website, that the “U.S. Code currently contains nearly 5,000 federal crimes. Recent studies estimate that over the past three decades, Congress has averaged 500 new crimes per decade. In addition to statutory criminal offenses, there are thousands of federal regulations that, if violated, can also result in criminal liability. Many of these laws and regulations impose criminal penalties on people who have no idea they are violating a law.”

Democratic lawmakers and liberal activists call this a sneak attempt to make it more difficult for the government to prosecute corporations and their executives for crimes against the public welfare. Last Wednesday, the Justice Department told the Judiciary Committee that the “establishment of a default “state of mind,” or mens rea, standard for all existing federal criminal laws … would create massive uncertainty in the law, undermine the enforcement of a multitude of criminal laws, and allow defendants charged with serious crimes – including terrorism, violent crime, sexual offenses, immigration violations, and corporate fraud – to embroil federal courts in extensive litigation and potentially escape liability for egregious and very harmful conduct.”

Dozens of former prosecutors and government officials sent a letter to the Senate leadership last Tuesday supporting Sriracha. According to Roll Call, a legislative newspaper, the letter to Majority Leader Mitch McConnell and Minority Leader Harry Reid focused on improvements it makes to the corrections system. Signers include Michael Mukasey, an attorney general under President George W. Bush, former FBI directors Louis J. Freeh and William S. Sessions, a number of U.S. attorneys and several federal appeals court and district court judges.

A report last Tuesday in Politico said Sen. John Cornyn, Sen. McConnell’s top deputy, has lobbied the majority leader to take up S. 2123 early this year. Politico reported that the bill’s backers say the Senate has to move on criminal justice reform quickly, perhaps as soon as next month, for the measure to have any hope of reaching President Obama’s desk. “The goal is not to get unanimous support,” Cornyn said. “The goal would be to get enough bipartisan consensus so that we could do something important and something the president wants to do, something that Republicans and Democrats want to do.”

Sen. McConnell has not yet agreed to bring the legislation to a floor vote, but his counterpart in the House of Representatives, Speaker Paul Ryan, has said he wants Sriracha on this year’s agenda, and President Obama also expressed his hope the bill would pass in the State of the Union speech earlier this month.

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

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

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

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

This week:

Time Waits for No § 2255 Petitioner

Please Lock Me Away …

Generalissimo Francisco Franco Is Still Dead

Cases Added To Supreme Court Docket

You Drive Big, You Pay Big

House Sentence Reform Bill Now Has 50 Cosponsors, But a Political Battle Looms

TIME WAITS FOR NO § 2255 PETITIONER

It has long been an article of faith among some Federal inmates that they may ask courts for an extension of time (beyond the 1-year cutoff) to file their post-conviction motions under 28 U.S.C. § 2255. Many have been shocked and dismayed to find out it just is not so. Last week, the U.S. Court of Appeals for the 6th Circuit, fed up with seeing so many such requests, put everyone on notice that there are no extensions granted for § 2255 motions.

Mario Asakevich was convicted and sentenced to life in prison. He lost his appeal, and the Supreme Court denied review on October 7, 2013. At that point, his conviction became final, giving him one year to file a § 2255 motion. During that year, he apparently spent a lot of time in the rec yard and TV room instead of writing his § 2255 motion. On October 6, 2014, the day before his § 2255 was due, he filed a motion asking the district court to preapprove a 90-day extension for filing. The district court denied him, and Asakevich appealed.

The 6th Circuit upheld the denial, pointing out that “in the aftermath of a final judgment of conviction … and in the absence of a pending § 2255 motion, there was no action in the district court to which the motion could apply. Federal courts do not lightly grant relief in nonexistent cases. Still less do they offer advisory opinions about what they might do if an action were filed.”

While admitting that the 3rd Circuit does grant such extensions, the 6th complained that there is no statute or rule that would give a district court authority to rule on such a motion before a § 2255 proceeding is begun.

The lesson: You snooze, you lose.

United States v. Asakevich, Case No. 15-1013 (6th Cir. January 11, 2016)

PLEASE LOCK ME AWAY …

Not many people want to be doing life in Federal prison. Harlan Salmona does, because it beats the alternative, which is doing life in a state penitentiary that he believes is less safe.

Harlan Salmona picked up a Federal drug trafficking case in 1987, and then rather impulsively shot one of the witnesses to death. That got him a state murder conviction on top of the Federal conviction. Salmona started cooperating with the Feds to try to get placed in Federal prison. Unfortunately, he cooperated too well, and lied so badly that the defendant he testified against was acquitted. At that point, the Federal authorities said he had breached his plea deal.

Salmona claims that because of a promise made to him by the Assistant U.S. Attorney in a long-ago plea agreement, the Feds are required to get him transferred from state to federal custody for the remainder of his state sentence. He filed a motion seeking an order compelling the AUSA to get him placed in Federal prison, consistent with the plea agreement.

Last week, the 11th Circuit turned Salmona down. It struggled to figure out what kind of complaint Salmona could file that would give Federal courts jurisdiction to hear his claim. The closest it could come was to decide that his motion to compel performance was really a petition for writ of mandamus.

Unfortunately, for Salmona, the requirements for mandamus are strict. Mandamus is appropriate only when there is no other adequate remedy and the “plaintiff has a clear right to the relief requested.” The Court said that Salmona had no clear right to relief, because he had admitted to fabricating his testimony and had even been convicted of perjury for doing so. “To state the obvious,” the Court said, “by committing perjury Salmona substantially breached his promise to provide truthful testimony, which was a key provision of the agreement.”

United States v. Salmona, Case No. 15-12569 (11th Cir., January 8, 2016)

GENERALISSIMO FRANCISCO FRANCO IS STILL DEAD

A report issued by the Pew Charitable Trust last week comes as no surprise. The Trust reported that “over the past three decades, imprisonment has become the dominant sanction in the federal criminal justice system. Nine in 10 federal offenders received prison sentences in 2014, up from less than half in 1980, as the use of probation declined steadily. Federal courts sentenced 2,300 fewer offenders to probation in 2014 than in 1980, even though their caseload nearly tripled during that span.”

The Report said changes in the kinds of offenses and offenders prosecuted in may have contributed to the shift toward prison and away from probation, but sentencing policies established during the 1980s and 1990s also played a role by mandating prison time for many offenses for which probation had routinely been ordered in the past. Although in the 2005 United States v. Booker ruling, “the Supreme Court deemed the guidelines ‘advisory,’ their effects nevertheless remain evident: More than three quarters of federal fraud offenders, for instance, received prison terms in 2014, compared with less than half in 1980.”

Pew Charitable Trust, More Prison, Less Probation for Federal Offenders (January 13, 2016)

YOU DRIVE BIG, YOU PAY BIG

Antoine Bruce filled his days by pounding out lawsuits in the prison library. Great fun but not cheap – at $350 a pop for U.S. District Court filing fees, Antoine’s hobby was rapidly draining his commissary account.

The Prison Litigation Reform Act of 1995 requires that inmates who proceed in forma pauperis (IFP) still pay an initial filing fee, set as “20 percent of the greater of” the average monthly deposits in their commissary account or the average balance of the account over the past 6 months. They then have to pay the rest of the fee in monthly installments of 20 percent of the last month’s deposits to the account. The initial partial fee is assessed on a per-case basis, each time the inmate files a lawsuit. Obviously, if you’re paying filing fees for four or five cases at once, you don’t have much left for ice cream.

Antoine sued (it’s what he does), arguing that each of his new monthly filing fee payments should not become due until the filing fee obligations incurred in earlier cases are satisfied. The D.C. Circuit disagreed, holding that Antoine’s new monthly payments were due simultaneously with monthly payments in the earlier cases.

Last week, the Supreme Court agreed with the D.C. Circuit, holding that 28 U.S.C. Sec. 1915(b)(2) calls for simultaneous (not sequential) collection of multiple monthly installment payments. Although the statute is not clear as to how to handle multiple cases, the Supreme Court said that it does call for assessment of “an initial partial filing fee” each time a prisoner “brings a civil action or files an appeal.” Nothing in the statute suggests that Congress intended a cap on monthly collections when more than one lawsuit is active.

If you want to dance more than one dance, you have to pay the piper for each one.

Bruce v. Samuels, Case No. 14-844 (U.S. Supreme Court, January 12, 2016)

CASES ADDED TO SUPREME COURT DOCKET

Last Friday, the  Supreme Court granted certiorari (that is, agreed to review) two cases of interest to us.

In McDonnell v. United States, the Court will consider whether prosecutors used too expansive an inter-pretation of the “official acts” provi-sion used in corruption cases under bribery and fraud laws. In Manuel v. Joliet, Illinois, the Court will consider whether someone who claims to have been a victim of police fabrication of evidence has a right to sue for discriminatory prosecution under the 4th Amendment. It is possible but not certain that decisions in these cases will come before the end of the Court’s term in June.

HOUSE SENTENCE REFORM BILL NOW HAS 50 COSPONSORS, BUT A POLITICAL BATTLE LOOMS

The House version of the Sentencing Reform and Corrections Act of 2015 (H.R. 3713), picked up an additional four cosponsors last week. The measure, which some are now calling “Sriracha” (like the Thai hot sauce) is now cosponsored by 50 legislators (about 12 percent of the House).

That was about the only good news for criminal justice reform advocates. On Wednesday, the day after the President’s State of the Union speech, the online political website Slate complained that “it was clear that the president had decided to leave criminal justice almost entirely out of Tuesday night’s address. Besides the reference he made to the issue at the very beginning — in which he used justice reform as an example of a bipartisan effort he hopes Democrats and Republicans can work on together during the coming year — Obama brought up the criminal justice system just once …”

Still, a January 12 report in The Hill quoted President Obama telling House Speaker Paul Ryan (R-Wis.) that he hoped “we can work together this year on bipartisan priorities like criminal justice reform …” The president has made overhauling the criminal justice system a pillar of his final year in office.

Meanwhile, other Sriracha tensions are bubbling. Last week, House Judiciary Committee Chairman Robert Goodlatte told the Atlantic magazine that the House is unlikely to approve a criminal justice reform measure that does not change the way the U.S. criminal code determines criminal intent, despite the fact that the White House opposes the changes.

At stake is a question of fairness. Goodlatte, along with conservative and libertarian organizations, supports changes he says would protect citizens from being unfairly charged with crimes they unknowingly committed. The White House, along with liberal organizations, believes that altering the burden of proof could make it more difficult to prosecute criminal activity, especially white-collar crime.

Doug Berman, an Ohio State law professor and sentencing expert, said last Thursday that “a provision clarifying that nobody should face serious federal criminal charges with-out federal prosecu-tors having to prove the accused had a significantly culpable mens rea is a critical element to doing justice in this country. Indeed, one of the reasons I stopped considering myself a “liberal” as that term is now understood is because of these kinds of issues where so-called “liberals” seem eager to deny a premise I consider fundamental in a liberal society, namely that one should not be treated like and branded a serious criminal by the government unless and until that government can prove an individual has acted and thought like a serious criminal.”

A Jan. 11 story in The Intercept quoted Sen. Charles Grassley (R-Iowa), chairman of the Judiciary Committee, as saying that he is talking to congressional leadership to see Sriracha put on this year’s agenda. “But as we head into 2016,” the magazine cautioned, “an election year hinged on Trumpian racism and bombast could threaten to sideline even the most muted of criminal justice reform bills.”

Finally, a January 12 Huffington Post opinion piece argued that House Speaker Ryan should push for more sweeping reforms than contained in the bills. “The U.S. Sentencing Commission estimated in October that under Sriracha, 4,300 out of the roughly 75,000 people who are sentenced to federal prison per year would receive shorter sentences each year. That’s equal to about 6 percent. The biggest chunk of these beneficiaries – some 3,300 – would see their sentences cut thanks to an expansion of the so-called “safety valve,” which allows defendants in drug cases to sidestep the mandatory-minimum sentence. The overall impact will be tiny …”

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

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

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

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

This week:

Supreme Court to decide Johnson retroactivity this term

Sentencing Commission Adopts Proposed “Crime Of Violence” Definition

EDNY Judge John Gleeson Resigns For Private Practice

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

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

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

SUPREME COURT TO DECIDE JOHNSON RETROACTIVITY THIS TERM

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

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

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

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

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

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

SENTENCING COMMISSION ADOPTS PROPOSED “CRIME OF VIOLENCE” DEFINITION

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

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

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

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

EDNY JUDGE JOHN GLEESON RESIGNS FOR PRIVATE PRACTICE

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

This week:

6th Circuit Rules Johnson is Retroactive

11th Circuit Chips Away at ACCA and Career Offender

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

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

Call For Obama To “Go Big” On Pardons

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

6TH CIRCUIT RULES JOHNSON IS RETROACTIVE

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

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

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

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

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

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

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

11th CIRCUIT CHIPS AWAY AT ACCA AND CAREER OFFENDER

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

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

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

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

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

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

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

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

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

READING THE FINE PRINT

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

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

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

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

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

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

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

CALL FOR OBAMA TO “GO BIG” ON PARDONS

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

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

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

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

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

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

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

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

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

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

This week:

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

Conviction Nullified For Nullification Advocates

Supreme Court Update On Johnson Retroactivity

FBI Up, BOP Down In 2016 Budget

Senator Grassley Delivers The Pork For The BOP

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

USING UNCHARGED CONDUCT TO INCREASE SENTENCES

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

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

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

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

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

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

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

CONVICTION NULLIFIED FOR NULLIFICATION ADVOCATES

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

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

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

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

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

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

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

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

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

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

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

SUPREME COURT UPDATE ON JOHNSON RETROACTIVITY

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

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

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

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

FBI UP, BOP DOWN IN 2016 BUDGET

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

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

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

SENATOR GRASSLEY DELIVERS THE PORK FOR THE BOP

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

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

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

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

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

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

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

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

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

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

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

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

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

 

This week:                

The Johnson Retroactivity Plot Thickens…

Fourth Circuit Sets Oral Argument On Johnson Retroactivity Case

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

Justice Shorts

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

The Johnson Retroactivity Plot Thickens…

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

FOURTH CIRCUIT SETS ORAL ARGUMENT ON JOHNSON RETROACTIVITY CASE

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

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

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

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

JUSTICE SHORTS

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

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

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

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

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

ADMINISTRATION AVOIDS REINING IN PROSECUTORS

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

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

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

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

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

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

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

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

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

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

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

This week:

Liar, liar, pants on fire

It ain’t over ‘til it’s over

It wouldn’t be Christmas without a Grinch

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

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

LIAR, LIAR, PANTS ON FIRE

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

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

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

Last week, the 2nd Circuit reversed.

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

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

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

IT AIN’T OVER ‘TIL IT’S OVER

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

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

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

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

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

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

YOU MUST ACT NOW

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

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

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

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

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

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

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

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

IT WOULDN’T BE CHRISTMAS WITHOUT A GRINCH

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

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

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

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

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

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

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

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

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

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

CONGRESSIONAL SENTENCE REFORM: A LOT OF TALKING GOING ON

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

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

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

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

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

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

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

This week:

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

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

•     Drug sentence reductions by the numbers

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

•     S. 2123 watch – Concern growing for prompt action

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

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

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

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

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

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

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

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

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

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

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

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

LAST YEAR’S DRUG SENTENCE REDUCTIONS BY THE NUMBERS

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

The average decrease in sentence amount to 17.8 percent.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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