“Early Termination? Dilly Dilly!” – Update for December 20, 2017

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DISTRICT JUDGE MUST CONSIDER 3553 SENTENCING FACTORS WHEN DECIDING EARLY SUPERVISED RELEASE TERMINATION

If you’re familiar with the phrase “Dilly Dilly,” you can thank Bud Light for turning the phrase into a cultural phenomenon. The company ads have gone viral thanks to constant appearances during commercial breaks in NFL and college football games. 

Anheuser-Busch InBev Chief Marketing Officer Miguel Patricio admits that  “‘Dilly Dilly’ doesn’t mean anything. That’s the beauty of it. I think that we all need our moments of nonsense and fun. And I think that “Dilly Dilly,” in a way, represents that.”

As a substitute for a longer, reasoned response, “dilly dilly” works. Used in lieu of an explanation, it’s not so welcome.

dilly171220After a federal defendant serves a prison term, he or she must then complete a term of supervised release, a post-incarceration period during which the defendant is under the thumb of a U.S. Probation Officer. The PO controls where the defendant lives, who he or she associates with, where he or she travels or works, even what he or she buys. Violation of the terms of supervised release – not necessarily commission of a crime – can land the defendant back in prison, once again disrupting his or her life and the lives of loved ones.

One of the few positive nuggets found in the dross of the supervised release statute is found in 18 USC 3583(e)(1), which lets an ex-inmate on supervised release get off paper after a year. Those defendants who know about the provision at all think that whether the court will cut them loose is up to whether the judge has indigestion from lunch or, if the defendant is fortunate, whether the probation officer got lucky the night before. Even POs are not immune: we have had one tell us that the judge will not grant a motion unless it is filed by the Probation Officer, and another told us she refuses to ever agree to early termination.

Under a criminal justice system governed by laws instead of caprice, we should expect more.

more171220Anthony Johnson expected more. He did about 20 years before the Supreme Court’s Johnson decision knocked his 22-year Armed Career Criminal Act sentence back to the 10-year maximum it should have been all along. So with having served seven years more than the law required, having gotten a solid job, joined a church, and completed a squeaky-clean year on SR, Anthony filed a 3583(e)(1) motion to have his supervision terminated.

dillyshirt171220The judge denied his request in a one-sentence handwritten order on page one of Anthony’s motion, without so much as even asking the PO for his views or requiring the government file an opposition. He might as well have written “Dilly Dilly” in the margin.

Anthony expected more, and so he appealed to the 11th Circuit. Last week, the appellate panel reversed the district court.

The Circuit said that a 3583(e)(1) motion cannot be denied on a whim. Instead, the district court is required to apply the same 18 USC 3553(a) sentencing factors to a termination motion as it is supposed to have used in sentencing the ex-inmate to begin with. Given that Anthony had the statutory right to appeal denial of a motion to terminate SR, the 11th said, his district court was obligated to explain its decision to deny early termination in terms of the sentencing factors – the nature the offense, history of the defendant, the need for the sentence to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense – that the court should have used 21 years before when it locked him up.

The district judge will get another whack at Anthony’s early termination motion, this time explaining his decision by applying the 3553 sentencing factors.

United States v. Johnson, Case No. 17-12577 (11th Cir. Dec. 15, 2017)

– Thomas L. Root

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Momentum Against Stash House Stings Growing? – Update for December 19, 2017

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ONE-OF-A-KIND HEARING HELD IN CHICAGO ON STASH HOUSE RACIAL PROFILING

stash171120The battle over whether stash house stings – where federal agents convince unwitting defendants to rob nonexistent stash houses of nonexistent drugs, all so they can arrest them – are designed to target minorities came to a head last week in an unprecedented three-day hearing in Chicago before a panel of nine U.S. district judges.

Each of the judges on the panel is presiding over one or more of 12 separate stash-house cases, with the liberty of 43 defendants at stake. The judges chose to hear expert testimony simultaneously after lawyers for all 43 defendants moved for the stash-house charges to be tossed on grounds of racial bias.

The testimony focused on dueling experts who reached starkly different conclusions about the racial breakdown of targets in the stash house cases. How they decide — possibly in a single ruling — is expected to influence how courts nationwide deal with similar claims.

expert160905An expert hired by the Federal Criminal Justice Clinic at the University of Chicago Law School — which is leading the effort to have the cases dismissed — concluded that disparity between minority and white defendants in the stings was so large that there was “a zero percent likelihood” it happened by chance. Defense expert Jeffrey Fagan said that out of 94 stash-house defendants in the Chicago area during an 8-year period, 74 were black, 12 were Hispanic and just eight were white. If the ATF criteria for picking likely defendants were racially neutral, he said, far more whites would have been snared.

Government lawyers have essentially argued that the numbers are unsurprising, because people in wealthier white areas are unlikely to be attracted to such a violent, illegal enterprise. In other words, the ATF goes where the business is good, and the business is good on Chicago’s South and West Sides. The government’s expert testified that Fagan wrong to assume that hundreds of thousands of people in eight counties in and around Chicago would be willing to entertain the idea of arming themselves and storming a stash-house.

Bootstrapping your way to higher sentences...
Bootstrapping your way to higher sentences…

Stash house stings have been criticized on other grounds, several times in this blog – here, here, here, here and here, for example – because agents can and usually do arbitrarily increase the sentences meted out by increasing the amount of non-existent drugs they tell defendants are in the non-existent stash houses. After all, why conspire to steal one kilo of smack when you can conspire to steal 50? Of course, the sentencing guidelines – not to mention the drug distribution statute itself – dictate much higher sentences according to the amount of drugs with which the conspiracy is involved, whether those drugs are physical or virtual.

The groundbreaking hearing is being closely watched in federal districts across the country. How it plays out could have ramifications far beyond the 43 Chicago defendants who are seeking to have their charges thrown out. The judges are expected to issue separate rulings at a later date, although some lawyers think there could be joint opinions issued by several judges if any are in agreement.

Chicago Tribune, Judges hear arguments on ATF’s alleged racial bias as landmark hearing opens (Dec. 14, 2017)

Fox News, Dueling statistics used at hearing on racial bias in stings (Dec. 15, 2017)

– Thomas L. Root

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Finding the Needles in the BOP’s Halfway-House Haystack – Update for December 18, 2017

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INCH DOESN’T GIVE AN INCH IN CONGRESSIONAL TESTIMONY ON RRC CHANGES

The House Committee on Oversight and Government invited BOP Director Mark Inch, Dept. of Justice Inspector General Michael E. Horowitz, and several correctional advocates to a hearing last week, where BOP use of residential reentry centers – halfway houses and home confinement – was front and center.

haystack171218Despite a lot of pushback from the legislators on the Committee, Director Inch did not describe the wholesale withdrawal of halfway house and home confinement time that many inmates have reported, and kept suggesting that all of the halfway house reporting in the media has really just centered on the BOP’s cut of 16 halfway houses, which represented only about 1% of RRC beds. The Director said those 16 were underutilized and were duplicated by nearby facilities. He mentioned almost as an afterthought that, oh yeah, the BOP has also been busy implementing the DOJ IG’s recommendation that it do a “better job of managing our contracts with those RRCs.”

The Director did his best to talk around repeated questions about recent BOP cuts to halfway house and home confinement time, and met every question from legislators with a repetition that the cuts to the 16 halfway house contracts did not “signal any lessening of our belief in the importance of the program. And I am committed to running the program very efficiently and to the capacity necessary for the population.”

The International Community Corrections Association, a trade association of RRCs, described the BOP’s activities in blunter terms:

[A] census of federal prisons has shown that BOP is sending fewer offenders to RRCs for these kinds of step-down services that reduce recidivism; instead these offenders are remaining longer in federal prison or being released directly into the community without support.  Furthermore, BOP is no longer accepting US Probation Office residents in BOP-contracted RRCs, which will also negatively impact recidivism. Recent budget cuts were cited by the BOP as the primary reason for these changes.

At the Oversight hearing last awednesday, written testimony and nearly three hours of questioning shed light on what is happening with the BOP’s management of its RRC relationships.

Not the kind of "halfway house" we're talking about.
Not the kind of “halfway house” we’re talking about.

First, it turns out that the Inspector General has criticized the BOP for sending “the great majority of eligible inmates into RRCs regardless of whether they needed transitional services, unless the inmate was deemed not suitable for such placement because the inmate posed a significant threat to the community. As a result, high-risk inmates with a high need for transitional services were less likely to be placed in an RRC or home confinement, and were correspondingly more likely to be released back into society directly from BOP institutions without transitional programming. Moreover, low-risk, low-need inmates were being placed in RRCs even though BOP guidance, as well as the research cited in the guidance, indicates that low-risk inmates do not benefit from and may in fact be harmed by RRC placement because of, among other things, their exposure to high-risk offenders in those facilities.”

Second, the BOP has been badly overpaying the halfway houses for home confinement services. It pays halfway houses an average of $70.79 for inmates placed there, but up until recently, it had blindly been paying half that – $35.39 a day – for inmates the halfway houses sent to home confinement. The Government Accounting Office has reported that the $35.39 daily payment had nothing to do with the actual cost of home confinement, which is more in the range of $8.00 a day. As a result, the BOP has now demanded halfway house contractors file separate bids for home confinement services, which should drive down costs to about what home confinement actually costs.

Third, Director Inch admitted that the BOP had been “overfilling” halfway houses well beyond the number of beds committed, and said that the new “normal” for the BOP will 4 months of halfway house only for those who really need it. This way, Inch said, three inmates could use a halfway house bed every year, each one for four months. This suggests that low-security and campers, who usually need a lot less reentry services, may remain where they are right up to the out date.

truth171218Fourth, the BOP changed its Statement of Work, the description of the resources a halfway house is expected to deliver (and which will be paid for by BOP), to eliminate delivery of cognitive behavioral programming (a requirement under the Obama administration) and associated staff training. The ICCA – whose members admittedly have a financial stake in receipt of the maximum amount of the $100 million plus the BOP spends annually on RRCs – said, “This is a significant change that means individuals coming out of federal prison will no longer receive the evidence-based programming that is proven to change criminal thinking and significantly lower recidivism.”

At the same time, the new SOW eliminates the RRC social services coordinator, who, according to the ICCA, has served as a liaison to community resources, has ensured continuity of care, has supported reentry transitional needs, and has coordinated social services including employment assistance and life skills programming. “They took away the person that was going to welcome them home, basically,” said former ICCA president Anne Connell-Freund. “It’s not exactly known how many halfway houses and how many beds have been affected.”

Rep. Elijah Cummings (D-Maryland) was concerned about the BOP’s “serious cuts” to the Baltimore halfway house that he said have put the facility on shaky financial ground. Director Inch may be a newbie at the BOP, but his experience as a general in the Army has honed his political instincts well. His affable non-answer to Rep. Cummings was to offer to stop by the Congrassman’s office for a one-on-one about Baltimore. But for now, he bloviated, “Is it our intent to cut back on the program: absolutely not.”

fired171218Rep. Matthew Cartwright (D-Pennsylvania) bluntly took the Director to task for current BOP plans to drop staff levels at prisons to 88% of “mission critical” levels. The Director suggested that the BOP will be adjusting its “mission critical” levels downward, which is a neat bureaucratic response to a serious problem. We don’t meet the standards? Then, by golly, let’s change the standards.

Rep. Cartwright pointed out that the BOP had gotten 99% of the appropriations it asked for wages and salaries, wondering why such cuts were needed in light of continued funding. The Director – who pled indulgence for being new on the job throughout the hearing – said he did not know why, despite the appropriation, the staffing cuts were so deep.

House Oversight Committee, Oversight of the Bureau of Prisons and Inmate Reentry (Dec. 13, 2017)

International Community Corrections Association, Bureau of Prisons Residential Reentry Centers: Reduction in bed use and programming will increase recidivism

Mother Jones, Team Trump is slashing programs that help prisoners adapt to life on the outside (Dec. 15, 2017)

– Thomas L. Root

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Pardon me… – Update for December 14, 2017

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CLEMENCY HOPEFULS EXPECTING LUMP OF COAL

Well, boys and girls, the stockings are soon to be hung by the chimney with care, in hopes that the annual emesis of Presidential pardons and commutations flow from the White House in celebration of Christmas.

Obama leaves town, stranding 7,800 commutation applications.
Obama left DC, stranding 10,000 commutation applications.

It’s almost hard to recall the euphoria a year ago, with thousands of federal prisoners – nearly all of them drug offenders – followed events at the White House like they never had before, awaiting word on presidential clemency as the clock wound down on President Barack Obama. By the time The Donald rode down Pennsylvania Avenue, PBO had commuted more than 1,700 federal prisoner sentences. But Barry and Michelle climbed about the ex-presidential helicopter leaving 10,000 clemency petitions languishing on his desk without action.

We have had a lot of people whom Obama left hanging wondering whether the new President would take up their cause. The Atlantic magazine considered the question last week, and those folks probably will not like the answer. The Atlantic quotes Mark Osler, one of the architects of Obama’s clemency program, as predicting that the remaining 10,000 commutation petitions “will still be pending when the present occupant of the White House leaves—unless they’ve been fed to the shredder in the interim.”

While Osler, a law professor and clemency expert, said he disagreed with the former president over some elements of the petitioning process, “at least Obama’s heart was in the right place. Clemency is going nowhere in the Jeff Sessions DOJ.”

The Atlantic said DOJ could not be reached for comment on plans for clemency, but the magazine suggests the Trump Administration’s intentions seem manifestly different from Obama’s. “Where the previous White House tried to roll back the harshest sentences for low-level drug offenses,” the article said, “Attorney General Jeff Sessions has revived mandatory minimums. Where Obama supported criminal-justice reform, Trump has promised a return to “law and order.”

coal171215No one should forget that both Trump and Jefferson Beauregard Sessions III were harsh critics of Obama’s Clemency Initiative, calling its expanded guidelines “a thumb in the eye” of law-enforcement and court personnel. Thus far this year, Trump has issued three pardons – one last August for Arizona sheriff Joe Arpaio, well known for his systematic mistreatment of jail inmates and immigrants, and two turkeys during Thanksgiving Week.

The only pardon talk going on right now has to do with current and former White House staff, with the clemency power being used as a bludgeon against Special Counsel Robert Mueller. It may be high drama, but for federal prisoners, it is nothing but one big lump of coal.

The Atlantic, I Don’t See Much Mercy in Donald Trump or Jeff Sessions (Dec. 9, 2017)

American Constitution Society, Considering Presidential Pardons after Flynn’s Guilty Plea (Dec. 11, 2017)

– Thomas L. Root

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Not a BOGO: Gun and Drug Sales Are Separate – Update for December 13, 2017

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GUNS AND DRUGS, BUT NOT AT THE SAME TIME

bogo171211Where have we heard of this one before? Darryl Jackson found a buyer for some heroin. Unfortunately, the buyer was an informant, and he showed up to the buy with an undercover agent as his driver.

After the heroin transaction, the undercover cop-driver convinced the informant to ask Darryl about buying a gun as well as the drugs. Darryl wasn’t stocking any guns right then, but he wanted to keep the customer satisfied, so he walked home, grabbed a gun he had lying around the house, and returned to sell it to the informant.

The sale worked so well that Darryl apparently saw an opportunity to develop a side business. He sold the informant another gun a month later, and then a few minutes after the transaction, sold the undercover cop a gram of smack.

Naturally, Darryl was arrested and pled guilty. We wouldn’t have a story otherwise. Darryl’s presentence report included a 4-level enhancement to his advisory Guidelines sentencing range under USSG 2K2.1(b)(6)(B) for “possessing a firearm in connection with another felony offense, to wit: distribution of heroin.”

daddy171213Darryl’s lawyer objected that “the guns and the drugs were not connected in any way, except to the extent that Mr. Jackson sold each of them, at different times, to the CI.” At sentencing,  counsel contended, “In terms of the furtherance, there’s no close proximity. There’s no drugs and guns next to each other. They’re basically separate transactions.”

Alas, the district court did not buy it. Darryl got 100 months in prison, while with the four levels removed, his range would have been on the order of 77 to 96 months.

Last week, the 6th Circuit reversed. The appellate court said that “the § 2K2.1(b)(6)(B) enhancement applies if the defendant actually or constructively possessed the gun in connection with the felony. Because the record reveals no reason to conclude that Jackson actually possessed or used either gun in connection with the two drug sales, we focus here on constructive possession.”

Because he did not have a gun with him, the Circuit observed, Darryl had to walk a block away to retrieve the gun that he then exchanged for money. Because the gun was down the block during the initial heroin sale and because Darryl had no reason to expect there even would be a gun sale when he bought the drugs, there is no evidence that he “had either the power or the intention to exercise dominion or control over the gun in connection with this first sale of heroin.”

violence171213Actually, this is exactly how the Guidelines provision (and statutes like 18 USC 924(c)) are supposed to work. Darryl had a gun, but he did not carry it during a drug transaction. Maybe he worried about the extra time he could get for doing so. Maybe he worried about hurting someone. Maybe it was too heavy and made his pants droop. No one knows his thought processes, but the goal – short of ridding ourselves of drug trafficking altogether – is to get the violence out of the trade.  The 6th Circuit’s wise parsing of the offense into two separate transactions honors this goal.

United States v. Jackson, Case No. 1602415 (6th Cir. Dec. 5, 2017)

– Thomas L. Root

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Minus One, Plus Two at Supreme Court – Update for December 12, 2017

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CERTIORARI DENIED TO DAN MCCARTHAN, BUT TWO OTHER SENTENCING CASES GRANTED SCOTUS REVIEW

You may recall McCarthan v. Collins, a case dealing with when and under what terms an inmate may use a 28 USC 2241 motion. Nine federal circuits let inmates file 2241s under the 2255 “saving clause,” which provides that a prisoner may use the 2241 form of federal habeas corpus if it “appears that the remedy by [2255] motion is inadequate or ineffective to test the legality of his detention.”

futility171212Earlier this year, however, the 11th Circuit held that an initial Section 2255 motion is an adequate and effective remedy to “test” a sentence, even when circuit precedent forecloses the movant’s claim at the time of the motion. After all, the Circuit said, a movant could have asked the court of appeals to overrule its precedent, sought Supreme Court review, or both. The saving clause in Section 2255(e), the 11th said, is concerned only with ensuring that a person in custody has a “theoretical opportunity” to pursue a claim, even if, at the time of the initial 2255 motion, the claim was virtually certain to fail in the face of adverse precedent. In other words, you have to raise arguments even when the court has already said the arguments are futile.

Both the 11th and 10th adhere to this draconian view. Dan McCarthan challenged the 11th Circuit interpretation. A few weeks ago, we reported that the Trump Justice Department asked the Supreme Court not to take the case, even though it acknowledged that the legal question is significant and that its new position could condemn inmates to serve out unlawful sentences. A week ago, the Supreme Court denied certiorari to Dan.

Meanwhile two new sentencing cases have been added to the Supreme Court docket. Hughes v. United States revisits the 2011 Freeman v. United States decision. Freeman said that a defendant with a F.R.Crim.P. 11(c)(1)(C) sentence – one where the sentence was fixed in the plea agreement – could get a sentence reduction under retroactive Guidelines changes only were the sentence was somehow tied to the Guidelines. Freeman was a 5-4 decision, and the fifth Justice only concurred, which made her concurring opinion the one that controlled.

undo160812Freeman has been a mess. Hughes gives the Court a chance for a do-over that may let more people with Rule 11(c)(1)(C) sentences reductions.

It frequently happens that defendants cooperate with the government, and are rewarded with a reduction in sentence under Sec. 5K1.1 of the Sentencing Guidelines. In Koons v. United States, the Supreme Court will determine whether a defendant who has a mandatory minimum sentence prescribed by statute, but who gets a 5K1.1 sentence reduction beneath that minimum, can later get a sentence reduction under retroactive Guidelines changes, even where the new sentence is below the mandatory minimum that was voided by the 5K1.1 motion.

Hughes v. United States, Case No. 17-155 (certiorari granted Dec. 8, 2017)

Koons v. United States, Case No. 17-5716 (certiorari granted Dec. 8, 2017)

– Thomas L. Root

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Showing Passion for Compassionate Release – Update for December 10, 2017

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PRESSURE’S TURNED UP ON BOP COMPASSIONATE RELEASE

Up to now, the BOP compassionate release program has seemed like the weather: everyone talks about it, but no one does anything about it.

coffin171211
Under 18 USC 3582(c)(1), the BOP director is empowered to recommend the compassionate release of an aged, infirm or sick inmate to his or her sentencing judge. The district court then makes the call whether to release the prisoner or not. It is an open secret that while the BOP constantly wrings its bureaucratic hands over its soaring costs of inmate care, an inmate has perhaps a better chance of being struck by lightning than he or she does being recommended or compassionate release. On average, about 575 applications for compassionate release are filed annually: the number actually granted averages about 24.

In 2013, the DOJ Inspector General encouraged the BOP to step up its game. Two years later, the IG’s aging inmates study found “aging inmates engage in fewer misconduct incidents while incarcerated and have a lower rate of re-arrest once released.” In 2016, the U.S. Sentencing Commission went so far as to expand eligibility for the program in hopes the BOP would use it more.

Last July, Sen. Richard Shelby (R-Alabama) – chair of the Senate Appropriations Committee Subcommittee on Commerce, Justice, Science and Related Agencies – ordered the BOP to turn over a gold mine of data on the compassionate release program. Sen. Shelby gave the BOP 60 days to deliver the data, but what the BOP provided the Committee has not been revealed.

(Full disclosure: LISA filed an FOIA request with the BOP two months ago to get a copy of what the Committee was given. So far, no response).

Finally, last August, four U.S. senators wrote a letter to the BOP requesting an update on its efforts to expand its use of the compassionate release program.

scrooge171211Now, a coalition of Families Against Mandatory Minimums (FAMM), American Conservative Union Foundation, Human Rights Watch, National Council of Churches, Law Enforcement Action Partnership, and National Disability Rights Network, have formed The Campaign for Compassionate Release. “It is cruel and senseless to prisoners and families alike to abandon an individual to suffer or die alone in prison, separated from loved ones,” FAMM General Counsel Mary Price said in a press release. “These prisoners are the least dangerous and most expensive to lock up, yet compassionate release often exists in name only. It often fails the people it is intended to help. And we’re fed up.”

While the Campaign will target both federal and state policies, the first stages of the launch focus on reforms to the federal compassionate release program. Last week, the Committee sent a letter to BOP Director Mark Inch, urging him to expand the program’s use. In addition to appealing directly to Inch, FAMM has also released a series of videos highlighting the kinds of cases the BOP either ignores or denies. 

Families Against Mandatory Minimums, FAMM Announces Launch of National Campaign for Compassionate Release (Dec. 7, 2017)

Reason.com, Pressure Builds on Bureau of Prisons to Release Elderly and Sick Inmates (Dec. 8, 2017)

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A Good Idea is Not Necessarily the Law – Update for December 8, 2017

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‘MAY’ DOES NOT MEAN ‘MUST’

There’s the old public service tagline about seat belts not just being a good idea, but being the law as well. It spawned more than one parody. But one kiddie-porn possession defendant learned last week that the meme does not have legs.

gravity171208The Circuits are strongly split over how to treat defendants subject to child porn Guidelines, which in the past 14 years have become draconian even by the normally harsh advisory Sentencing Guidelines. The 2nd Circuit started off the principled opposition to the stratospheric child porn sentencing ranges mandated by Congress in the 2010 case of United States v. Dorvee, holding that courts could pay little deference to child porn Guidelines because they were not set by the reasoned professional judgment of the Sentencing Commission, but instead by the political hacks in Congress. Two years later, the 6th Circuit ruled in United States v. Bistline that the fact that Congress told the Commission to set the ranges high meant the child porn guidelines were entitled to even more deference than the normal Guidelines.

anarchy171208In 2014, the 7th Circuit held in United States v. Price that it agreed with Dorvee, and said a sentencing judge could vary downward because of policy differences with Congress. But last week, the Circuit reminded defendants that “while district courts may disagree with the Guidelines’ policies and impose a lower sentence, it is not true that they must” do so.

bereasonable171208Terry Obetz questioned the usefulness of the Guidelines in child pornography cases, because the Guidelines were shaped by Congress instead of sentencing experts, and thus lack a basis in empirical data. He argued that Price requires sentences in child pornography cases to fall below the Guidelines’ range in order to be reasonable.

The judge listened to Terry’s policy argument but was not convinced: after all, the judge said, Congress created the Sentencing Commission, and it was free to give the USSC “some direction” when it wanted to. After all, what is a sentence but a political expression of appropriate punishment.

The sentencing court knew it was not bound by the Guidelines, but the judge said he believed the Guidelines’ recommendation – even if it was authored by Congress (or maybe especially because it was authored by Congress) – was appropriate.

judges171208On appeal, the 7th observed that the exercise of discretion shown by Terry’s judge  was “exactly what the judge was supposed to do.” Just as the judge in Price exercised her discretion when she reasonably deviated down from the Guidelines on policy grounds, Terry’s judge exercised his discretion, too, when he reasonably chose not to do so.

Judges judge, the Circuit said. That’s what they do, and as long as they are reasonable about it, the Court of Appeals was not going to tell them differently.

United States v. Oberg, Case No. 17-1546 (7th Cir. Dec. 1, 2017)

– Thomas L. Root

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Lying Down with Dogs – Update for December 7, 2017

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DEFENDANT SANDBAGGED BY AUSA PLEA DEAL BREACH GETS NEW SENTENCING

Like 94 out of 100 defendants, Kamal King-Gore made a deal with the government after his arrest on drug charges. One of the terms of the plea agreement, a fairly common provision, stipulated that nothing Kamal told the government in his proffer would be used against him.

fleas171207At sentencing, however, the AUSA breached the agreement by telling the court what Kamal had said at the debriefing, specifically evidence Kamal had given the government that portrayed him in fairly bad light. While the government recommended a 188-month sentence like it was supposed to do, it did so while reporting to the judge that  Kamal was a wholesale drug seller and explaining in detail the quantities Kamal had moved.

Kamal should know that if you lie down with dogs, you’re going to probably get up with fleas. Speaking of dogs, the judge – who had no idea she was being treated to information  Kamal had told the government only because it promised not to use them against him – heard the government’s dog whistle loud and clear. She obligingly branded Kamal a wholesaler (a term first used by the government) with a serious record. Nevertheless, the court sentenced Kamal to 162 months, less than the time the government agreed to recommend.

Some people are never satisfied, and you can drop Kamal into that camp. He appealed, arguing that while the government kept its word on the amount of time it recommended, it talked out of school about things it learned in the proffer, such as that Kamal had cooked up a quarter kilo of cocaine into crack. 

ausalies171207On appeal, the government admitted it broke its word, but argued that its breach did not hurt Kamal because there was plenty in the record that would have set off the judge anyway, and anyhow, he got less than his Guidelines range. Even without its pulling a data dump on Kamal at sentencing, the government said, the district judge would have hammered him.

Last week, the D.C. Circuit disagreed, reversing the sentence. The AUSA argued the “record shows ample independent evidence for the district court to conclude” Kamal “deserved a higher sentence.” This is so, the D.C. Circuit said, but the “question isn’t whether defendant’s prison term would have been drastically shorter—just whether it was reasonably likely that the prison term would not have been as long had the district court considered only permissible factors.”

dogcouch171207Here, the sentencing judge picked up the term “wholesale seller” only after the government used it in its sentencing arguments. And the government supported its use of the “wholesaler” term by referring to a sale that appeared nowhere in the record. That was enough to convince the Court of Appeals that Kamal was entitled to resentencing in front of a different judge who had not heard about what Kamal said at his proffer.

United States v. King-Gore, Case No. 13-3010 (D.C. Cir. Nov. 28, 2017)

– Thomas L. Root

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Can You Find Me Now? – Update for December 5, 2017

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PRIVACY IN THE SMARTPHONE AGE

Waldo171205The Supreme Court heard oral argument last Wednesday in Carpenter v. United States, an important criminal case asking whether prosecutors may use cellphone location records against a defendant when the records were obtained from cellphone companies without a warrant.

The more basic question is whether personal information collected by third parties (often without one’s consent or even knowledge) remains private to the extent that the 4th Amendment requires a search warrant before the government swoops in to commandeer it.

Cellphones send signals to the nearest cell towers as long as the phone is on, even when no call is being made. Cellphone companies store records of the tower to which a cellphone is linked for up to 18 months. By stringing together 18 months of cell tower records, one can easily build a historical record of just about everywhere one was for the past year and a half. Scary.

For robbery suspect Tim Carpenter, the data obtained by the government without a warrant showed he was in the vicinity of several Radio Shack locations right at the time those stores were being robbed (of smartphones, ironically enough). We call that location data “circumstantial evidence,” but – contrary to popular belief – circumstantial evidence is perfectly good evidence, and in Tim’s case, it was good enough to convict. Tim got sentenced to a mere 116 years.

radioshack171205At oral argument, the Supreme Court seemed sympathetic with the idea that information in the hands of a third party may nevertheless be so personal that a search warrant is required before it is retrieved. At the same time, the Court was puzzled as to how to frame a rule to cover the situation. As Justice Stephen Breyer put it at one point, “This is an open box. We know not where we go.”

Even if the Court does hold that cellphone location records required a search warrant to obtain, the holding probably would not help people who have already been convicted. The decision would be a new constitutional rule of criminal procedure, but in all likelihood it would not be a “watershed” rule that would be retroactive for convictions that were already final.

... except when it's not.
... except when it’s not.

What’s more, even if the location data is held to be protected by the 4th Amendment, incarcerated people who will someday be on supervised release should recognize that their cellphones – which now more than ever contain the user’s entire life story – are not private. In a decision last week affirming Valentino Johnson’s felon-in-possession conviction, the 9th Circuit held that a warrantless search of his cellphone was permissible because he was on parole.

The Circuit said parole is different from probation, because it is akin to actual imprisonment. “On the ‘continuum’ of state-imposed punishments,” the Court said, “parolees appear to hold the most limited privacy interests among people convicted of a crime but are not actually imprisoned.” Although the case relates to state parole, its analysis would apply equally to supervised release.

SCOTUSBlog.com, Argument analysis: Drawing a line on privacy for cellphone records, but where? (Nov. 29, 2017)

United States v. Johnson, Case No. 16-10184 (9th Cir. Nov. 27, 2017)

– Thomas L. Root

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