We’re still doing a weekly newsletter … we’re just starting to post pieces of it every day.  The news is fresher this way …

LIVE THE LIFE

Neftalí Alvarez-Núñez, better known in the music world as “Pacho,” portrayed the gangsta life as it’s lived in San Juan and Miami. As Pacho y Cirilo, he and his partner were a YouTube with hits like “Mi Gatita Es Calle” and “La Emenencia Un Beso.” (It’s pretty good stuff, available on iTunes and through Amazon, too).

But life started imitating art, and Neftalí was caught discarding a gun as he left a San Juan nightclub. And not just any gun. This one was apparently the same piece that starred in “Mi Gatita Es Calle,” a Glock with an extended magazine that had been tweaked to fire in full-auto mode.

Neftalí had no criminal history, but he was addicted to Percocet, and so the obliging United States Attorney charged him as a drug-abuser-in-possession of a firearm (a subparagraph under 18 U.S.C. § 922, much less known that its big brother, felon-in-possession) and possession of a machingun. Neftalí’s Guideline sentencing range was only 24-30 months.

The Presentence Report, however, veered into music criticism, and the Probation Officer was no music lover. The PSR proposed an above-Guideline sentence because Pacho y Cirilo’s songs “promote violence, drugs and the use of weapons and violence, as . . . can be seen through their videos which are readily available on the internet.” The Report included translations of two songs performed by Pacho y Cirilo. “Dicen Que Vienen Por Mi” and “Como Grita El Palo.”

The Judge was not much for that genre, either. Deciding that the lyrics reflected Neftalí’s disdain for the law, love of guns and glorification of the drug culture, the District Court gave Neftalí 96 months, more than three times the top end of his Guidelines.

Last Friday, the 1^st Circuit reversed the sentence. While it is true, the Court said, “that the Constitution does not erect a per se barrier to the admission of evidence concerning one’s beliefs and associations at sentencing simply because those beliefs and associations are protected by the First Amendment,” at the same time, “a defendant’s abstract beliefs, however obnoxious to most people, may not be taken into consideration by a sentencing judge.” Conduct protected by the First Amendment may be considered in imposing sentence only to the extent that it is relevant to the issues in a sentencing proceeding.

The Government argued that Pacho’s rather graphic lyrics reflected his beliefs, and thus was relevant to the sentencing issues. The District Court agreed, arguing that Neftalí’ “is an individual who makes a life . . . not only carrying this kind of firearm, but also preaching . . . the benefits of having this kind of firearm, the use you can give to them, expressing how you kill people, expressing how you don’t care about human life.”

The 1^st Circuit rejected the District Court’s analysis. The appeals panel said that “implicit in this rationale is the assumption that the lyrics and music videos accurately reflect the defendant’s motive, state of mind, personal characteristics, and the like. But this assumption ignores the fact that much artistic expression, by its very nature, has an ambiguous relationship to the performer’s personal views. That an actress plays Lady Macbeth, or a folk singer croons “Down in the Willow Garden,” or an artist paints “Judith Beheading Holofernes,” does not, without more, provide any objective evidence of the performer’s motive for committing a crime, of his personal characteristics (beyond his ability to act, sing, or paint, as the case may be), or of any other sentencing factor.”

The Court of Appeals said, “In the absence of such extrinsic evidence, the mere fact that a defendant’s crime happens to resemble some feature of his prior artistic expression cannot, by itself, establish the relevance of that expression to sentencing.”

The case was sent back for resentencing.

United States v. Alvarez-Núñez, Case No. 15-2127                                        (1^st Cir. July 8, 2016)

Vol. 2, No. 33

This week:

Appellate Courts Continue To Argue For Expansion Of Johnson

BOP Not Running Pell Mell to Pell Pilot Project

How Long Is Long Enough?

Critics Urge Grand Obama Clemency Gesture

What Did He Know And When Did He Know It?

Rough Week For The Country… And For Sentence Reform

APPELLATE COURTS CONTINUE TO ARGUE FOR EXPANSION OF JOHNSON

The 2255 filing deadline may have passed for Johnson v. United States claims, but the case continues to make waves.

Last Thursday, the 6th Circuit joined the 7th and 9th Circuits in holding that the definition of “crime of violence” in 18 U.S.C. § 16 – even as applied in a purely civil deportation proceeding under the Immigration and Nationality Act – is unconstitutionally vague. Although Johnson related only to 18 U.S.C. § 924(e)(2)(B)(ii), the panel said, “the wide-ranging inquiry required by these two statutory phrases are one and the same, and we therefore hold that the immigration code’s residual clause is likewise unconstitutionally vague.”

Meanwhile, an 11th Circuit panel denied Leonard Sapp the right to file a second-and-successive 2255 motion challenging application of the career offender Guidelines to his sentence in light of Johnson. That decision was fully hardly a surprise. “In In re Griffin, the panel said, “we held that our reasoning in Matchett applied with equal force to the residual clause of the career-offender guideline in the context of the mandatory Guidelines. The Supreme Court has recently granted certiorari in Beckles v. United States, 616 F. App’x 415 (11th Cir. 2015), which raises the question of whether Johnson applies to the Guidelines. While we respectfully disagree with the holding of Griffin, we are nonetheless bound by that decision.”

What makes the Sapp decision so unusual is that all three judges on the panel joined in a single concurrence to their own majority opinion, explaining that “although we are bound by Griffin, we write separately to explain why we believe Griffin is deeply flawed and wrongly decided.” The judges proceed to dismember the Griffin decision that Johnson could not apply to a “career offender” sentence – even one under the mandatory, pre-Booker Guidelines – concluding that while the 5th and 8th Circuits have recently denied second-and-successive applications where the claim was that Johnson affected “the residual clause of the advisory career offender guideline, as far as we can tell no other circuit has held that the residual clause of the mandatory career offender guideline is categorically immune from a Johnson challenge.”

These holdings strengthen the case for application of Johnson to the Guidelines “career offender” provision, now before the Supreme Court in Beckles v. United States.

Shuti v. Lynch, Case No. 15-3835 (6th Cir. July 7, 2016)

In re Sapp, Case No. 16-13338-J (11th Cir. July 7, 2016)

BOP NOT RUNNING PELL MELL TO PELL PILOT PROJECT

We reported last week on an Obama administration decision to run a pilot program – the Second Chance Pell – at selected prisons, offering Pell grants to inmates despite a 1994 law prohibiting paying for prisoners to take college courses. It turns out that BOP is a virtual no-show on the Second Chance Pell list.

The U.S. Dept. of Education chose 67 colleges and universities across the country to participate in Second Chance Pell. While state institutions ran pell mell to participate in the Pell program, a list of participating prisons issued by DOE last week included only five out of 122 federal facilities: FCI Gilmer (West Virginia); FCI Milan (Michigan); FCC Beaumont (Texas); FMC Devens (Massachusetts); FCI Raybrook (New York); and FCI Bennettsville (South Carolina).

Tacoma News-Tribune, Prison Pell grants offer second chance for inmates reclaiming their lives (July 4, 2016)

DOE List of Second Chance Pell Participants (July 7, 2016)

HOW LONG IS LONG ENOUGH?

Lavelle Phillips was caught with a gun and charged as a felon in possession. That’s pretty straightforward. His argument to the 9th Circuit – that the 2nd Amendment did not permit him to be charged – was anything but straightforward. The Court affirmed his conviction, but raised some fascinating questions.

Phillips’ prior conviction was for misprision of felony, the crime of having knowledge that a felony has been committed but concealing it by not reporting it as soon as possible. Phillips argued that misprision was a “passive crime of inaction” that could not constitutionally keep him from possessing a gun.

The Court ruled that the test was whether Congress would have had such a felony in mind when it banned gun possession by convicted felons. The current misprision statute “is functionally identical to its predecessor, enacted by the First Congress as a part of the Crimes Act of 1790 (prior to the ratification of the Second Amendment),” the Court said. “Because actions of the First Congress provide ‘contemporaneous and weighty evidence’ of the Constitution’s meaning, we are hard pressed to conclude that a crime that has always been a federal felony cannot serve as the basis of a felon firearm ban, simply because its actus reus may appear innocuous.”

The 9th Circuit noted in passing that “there are good reasons to be skeptical of the constitutional correctness of categorical, lifetime bans on firearm possession by all felons,” and the opinion suggests that the common law origin of such bans never intended them to be lifetime and permanent. The Court left that issue for another day.

United States v. Phillips, Case No. 14-10448 (9th Cir. July 6, 2016)

CRITICS URGE GRAND OBAMA CLEMENCY GESTURE

It’s no secret that Obama’s goal of commuting 10,000 federal sentences is on life support. So far, the President has approved 348 commutations, almost all since the clemency initiative was launched in 2014. But nearly 12,000 prisoner petitions remain undecided, despite the fact DOJ estimates that as many as 2,000 of them seem to satisfy Obama’s rather strict criteria.

The lack of staffing, overly restrictive standards and insufficient funding have hampered the clemency effort. Now that Obama is down to six months left in office, criminal justice experts wrote two weeks ago urging him to speed up the process in order to give everyone who qualifies a meaningful chance to be considered.

The New Yorker magazine last week suggested the most obvious solution to both the procedural problems and the limiting clemency criteria would be to consider cases not individually but categorically. Marc Mauer of the Sentencing Project, a retired federal judge Nancy Gertner, and law professor Jonathan Simon recommended that Obama follow that path, like Gerald Ford and Jimmy Carter did in granting amnesty to broad categories of draft resisters after the Vietnam War, of granting clemency to broad groups of inmates.

One such category, the magazine suggested, might be crack-cocaine sentences handed down before the Fair Sentencing Act of 2010. “Through a categorical commutation, Obama could adjust the sentences of all those convicted under the one-hundred-to-one regime to the penalties Congress now deems appropriate. Such a measure would provide immediate relief to some five thousand prisoners.”

In an opinion piece in The New York Times last week, a law professor suggested that Obama ought to use his pardon power to permit illegal immigrants to stay in the country, too.

The New Yorker, Why Hasn’t Obama’s Clemency Initiative                  Helped More Nonviolent Drug Offenders? (July 4, 2016)

The New York Times, Can Obama Pardon Millions of Immigrants?   (July 6, 2016)

WHAT DID HE KNOW AND WHEN DID HE KNOW IT?

Alfonso Torres-Chavez’s lawyer was ready to go to the mat for his client at trial, fighting the drug conspiracy charges with the time-honored “you’ve got the wrong guy” defense. The government, however, had lined up snitches, voice analysis experts and documentary evidence to show that they did have the right guy. Alfonso got mauled at trial.

Before trial, the government offered Alfonso a 10-year plea deal. Alfonso says his lawyer told him not to take it, because the government didn’t have enough to convict. Oops.

Alfonso filed a § 2255 motion, arguing his lawyer was ineffective for the bum advice on the plea. The district court threw the motion out without a hearing, finding that counsel’s advice to go to trial was not objectively unreasonable.

Last week, the 7th Circuit reversed, and sent the case back for a hearing. The Court said that “if we assume… that Torres-Chavez’s counsel knew about all the evidence that was presented at trial when the plea offer was made, then his counsel’s performance was deficient. But our analysis does not stop here, since the relevant inquiry is what Torres-Chavez’s counsel knew when the plea offer was rejected, not what he knew at the conclusion of the trial… Here, the record does not show whether at the time of the plea offer, Torres-Chavez’s counsel knew about the informant’s testimony, the linguist’s testimony, the phone-call recordings, or the flight records.”

If the district court were to find that when he advised Alfonso not to take the plea, “counsel knew about all the evidence,” the Court said, “then his performance was unreasonable. But if an evidentiary hearing reveals that he did not know about certain of the government’s evidence, then his assistance may have been constitutionally adequate.”

Torres-Chavez v. United States, Case No. 15-1353                                      (7th Circuit, July 7, 2016)

ROUGH WEEK FOR THE COUNTRY… AND FOR SENTENCE REFORM

Hopes are waning for passage of the Sentencing Reform and Corrections Act of 2015, as the election season kicked into high gear. Still, last week began with some voices – like a Houston Chronicle editorial – arguing that “we know Congress can get the work done. The House just passed a compromise mental health bill on Wednesday that has a bipartisan counterpart in the Senate. As the clock ticks down, these are the sorts of moves that voters should want to see, and passing criminal justice reform before the buzzer would be a victory for everyone.”

But the week ended with tragedy in Dallas. The Marshall Report observed last Saturday night that “in the world of criminal justice, pushes for change can be diverted or stalled by major news events. In recent days, the shooting of two black men by police — captured on video — mobilized demonstrations across the country, demanding police be held more accountable for violent encounters with black civilians. But the sniper killings of five officers in Dallas seems to have stiffened the opposition to reforms. With legislation to reduce prison terms for some crimes stalled by election-year politics and efforts to repair police-community relations moving slowly, leaders across the political spectrum are watching to see if such efforts can survive this heated moment.”

Even before Dallas, the outlook was not promising for sentence reform. The Senate only has 48 more work days planned in 2016, and the House only has 38 days left. Neither chamber has brought the SRCA to the floor for a vote. A new Congress starts in January, meaning that any bill still pending at the end of the year will disappear, and the process must start over in 2017.

Last week’s shootings in Dallas help feed a national misperception that makes passage of sentence reform very difficult. Last October, 70% of Americans asked told Gallup pollsters that crime is on the increase. Presumptive Republican presidential nominee Donald Trump regularly claims that “crime is rising.” Surges in violence in cities like Chicago are top stories on the news, despite the fact that – as the conservative Weekly Standard pointed out last week – “there’s almost no evidence of either a significant rise in crime or a fundamental change in the largely effective anticrime policies — better policing tactics and increased incarceration — that were adopted starting in the 1980s. Recent efforts at criminal-justice reform, ranging from the Sentencing Reform and Corrections Act pending in Congress to changes in local police practices, couldn’t have plausibly affected national crime rates. On the whole, there’s little reason to panic about rising crime or to think that modest reforms under consideration will do harm.” But it matters little what the facts show. What matters is what the public – and members of Congress – believe the facts to be.

Amy Povah, who served a decade for a federal drug offense and now runs a nonprofit foundation that educates the public about sentencing and conspiracy law reform, argued in Politico last week that “it is critical that the Sentencing Reform and Corrections Act currently pending in the Senate and the Sentencing Reform Act in the House of Representatives pass and be signed into law so that thousands of incarcerated people will also be able to benefit from having a second chance at life. It is also critical that Sen. Tom Cotton [R-Arkansas] rethink his position on criminal justice reform and base his views on facts, not myths.” It’s hard to get people to calmly reflect on their misconceptions when cable news is shrieking about the latest crisis.

The other criminal justice news last week, the FBI’s pass on Hillary Clinton, led to some wry commentary in the libertarian publication Reason. A sticking point in sentence reform was the conservative push to add mens rea reform to federal law, a change many Democrats oppose. A Reason editor suggested that Hillary’s supporters now “should have a new appreciation for the legal concept of mens rea — literally, ‘defendant’s mind’ — because it looks like it will save her from federal prosecution for her use of a personal email server as secretary of state.” In recommending that DOJ not charge Clinton, FBI Director James Comey “distinguished her ‘extremely careless’ handling of ‘very sensitive, highly classified information’ from previous cases involving ‘intentional and willful mishandling’.”

The Reason article argued that “innocent acts, honest mistakes, and simple accidents can lead to criminal convictions that deprive people of their liberty and property, ruin their reputations, and carry lifelong collateral consequences ranging from impaired occupational opportunities to the loss of constitutional rights. That’s a serious problem recognized by Democrats as well as Republicans, as demonstrated by the bipartisan support for mens rea reform in the House of Representatives. Yet Senate Democrats dismiss the proposed changes… as ‘corporate protection.’ They blame Republican insistence on mens rea reform for imperiling a criminal justice reform bill that until recently seemed likely to pass this year. It would be a shame if disagreement on this issue prevented Congress from reducing excessively harsh federal sentences. But Senate Democrats’ critique of mens rea reform is seriously misguided, if not downright disingenuous.”

Legal Information Services Associates provides research and drafting services to lawyers. 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 your client, we’ll tell you that. If what your client wants to do is futile, we’ll tell you that, too.

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

Vol. 2, No. 32

This week:

Sentence by Survey

Crime By the Numbers

Post Hoc

OMG! Cellphones are Top Contraband in BOP

Chance for Sentencing Reform Slipping Away

SENTENCE BY SURVEY

Last fall, a jury convicted a man – call him John Doe – of distributing child pornography. He was facing up to 20 years, which is what the government asked for. The presentence report calculated his sentencing range – he had no criminal history – at 21 to 27 years.

U.S. District Judge James Gwin polled the jury, however, asking what an appropriate sentence should be. Their suggestions averaged 14 months. Impressed with this, the judge gave Doe 60 months, the mandatory minimum for the offense.

The government appealed. Last week, a 6th Circuit panel unanimously upheld the sentence.

The government argued that the jury poll was an “impermissible factor” for the district judge to consider in crafting a sentence. The 6th Circuit disagreed, noting that the law “provides nearly unfettered scope as to the sources from which a district judge may draw in determining a sentence… District courts also have the authority to reject the Guidelines sentencing ranges based on articulated policy disagreements in a range of contexts. Indeed, we have suggested the plausibility of rejecting guidelines ranges in child pornography cases based on policy disagreements.”

The Court suggested that jury polls can help determine an appropriate sentence. While juries lack “the tools necessary for the sentencing decision, they can provide insight into the community’s view of the gravity of an offense.” Here, the 6th said, “the jury did not determine or impose defendant’s sentence. Rather, the district judge – who does possess the necessary tools for the sentencing decision – was at all times interposed between the jurors’ views of an appropriate sentence and the sentencing guidelines’ § 3553(a) factors. Considering the jury’s sentencing recommendation as part of the sentencing calculus did not conflict with the district judge’s duty or ability to properly weigh the § 3553(a) factors and independently craft an appropriate sentence.”

United States v. Collins, Case No. 15-3236 (6th Cir.  June 29, 2016)

CRIME BY THE NUMBERS

The U.S. Sentencing Commission released its annual survey of federal sentencing for 2015 last week. The report is exhaustive in its analysis of the demographics of federal sentencing in the country.  Its highlights included:

•      4,800 fewer sentences were handed down than in 2014, a 6.4% reduction;

•       Drug cases remained the most popular offense (31.8% of all cases), with immigration cases the next most common (29.3%). Meth offenses were the most common and the most severely punished drug crime;

•       87.3% of defendants received prison sentences;

•       Almost 75% of sentences were for less than five years;

•    The proportion of drug offenders convicted of an offense carrying a mandatory minimum penalty was the lowest it has been since 1993.

U.S. Sentencing Commission, Overview Of Federal Criminal Cases,      FY 2015 (June 27, 2016)

POST HOC

Post hoc ergo propter hoc, a Latin phrase meaning “after this, therefore because of this,” is a logical fallacy arguing that because event Y followed event X, event Y must have been caused by event X.

A variant of the fallacy has been popping up since Johnson v. United States came down, confusing petitioners and courts alike. When Lonzo Stanley asked for leave to file a second 2255 because of Johnson, the 7th Circuit used his application as a teaching moment.

A blizzard of filings, the Court said, “depends on a belief that Johnson reopens all questions about the proper classification of prior convictions under the Guidelines and the Armed Career Criminal Act. But the sole holding of Johnson is that the residual clause is invalid. Johnson does not affect the first portion of clause (ii) (‘burglary, arson, or extortion, [or] use of explosives’) and does not have anything to do with the proper classification of drug offenses or the operation of § 924(e)(2)(B)(i), known as the ‘elements clause,’ which classifies as a violent felony any crime punishable by a year or more in prison that ‘has as an element the use, attempted use, or threatened use of physical force against the person of another’. The Guidelines contain the same language.”

Lonzo’s “career offender” sentence depended on prior convictions for drug trafficking, aggravated battery of a peace officer, and illegal possession of a firearm. The 7th Circuit noted that Johnson did not alter how drug trafficking convictions counted against a defendant and that aggravated battery remained a violent crime under the ‘elements clause’.

Lonzo thought he had a Johnson play, however, because one prior was a conviction for illegal possession of a firearm, which clearly should not count as a violent offense. But he was wrong. The Court explained that illegal gun possession was not a violent crime, but not because of Johnson. Rather, the offense never qualified as a violent felony. The Sentencing Commission had concluded that a felon’s possession of a gun that could be possessed lawfully by a non-felon is not a crime of violence for the purpose of the career offender guideline, and thus, Lonzo’s district court should not have counted this conviction at his 2004 sentencing. “Because the classification of this conviction is unaffected by Johnson,” the Court said, “§ 2255(f)(3) does not grant Stanley a fresh window to file a collateral attack. Indeed, because Stanley could have appealed his sentence based on the application note, he could not have filed a collateral attack even within the year originally allowed by § 2255(f).”

Lonzo had no offense made nonviolent by Johnson, so he could not file a second § 2255.

United States v. Stanley, Case No. No. 15-3728                                              (7th Cir.   June 27, 2016)

OMG! CELLPHONES ARE TOP CONTRABAND IN BOP

A DOJ Inspector General report found that cellphones were the favored item of contraband found in BOP facilities, with 8,700 of them found from 2012-2014. The report, issued last week, criticized the BOP for failing to have a policy in place to search its own staff for contraband.

A search policy BOP implemented in 2013 was discontinued two years later after a union complaint to the Federal Labor Relations Authority. Even that policy was flawed, according to the DOJ report. “The policy provided that all staff and their belongings could be searched randomly or based on reasonable did not prescribe any required frequency for conducting random pat searches, resulting in what we found to be infrequent staff pat searches of varying duration. It also allowed staff to possess and use within institutions items, such as tobacco, that are prohibited for inmates. Additionally, despite the BOP concurring in 2003 with the OIG’s recommendation that it restrict the size and content of personal property that staff may bring into institutions, the 2013 policy contained no such restrictions. The policy further permitted staff to return to their vehicles to store contraband that had been identified during front lobby screening procedures, unless doing so would jeopardize the safety, security, or good order of the institution, or public safety. Finally, the policy did not ensure that only trained and supervised staff was assigned to front lobby positions, and we found that at some institutions entry-level Information Receptionists were assigned to these positions.”

The DOJ report also faulted the BOP for lacking a comprehensive contraband tracking capability, deficiencies in security camera coverage, and lack of staff training on using cellphone tracking technology.

DOJ Office of Inspector General, Review of the Federal                      Bureau of Prisons’ Contraband Interdiction Efforts (June 30, 2016)

CHANCE FOR SENTENCING REFORM SLIPPING AWAY

We’ve been pessimistic for months about the chances for passage of the Sentencing Reform and Corrections Act of 2015, now before the Senate as S.2123 and in the House as H.R. 3713. There’s a reason for that.

The political website Real Clear Politics reported last Thursday that the “push for criminal justice reform, the legislation seen as having the best chance of passing Congress this session, has stalled as key senators hold slim hopes of passing anything before the end of year.” Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa), who played a key role in negotiating the legislation, was quoted as saying said the bill is stalled for now. “I don’t see how it gets done before” July 15, Grassley said, referencing the day the senators depart from Washington and won’t return until after Labor Day. “It’s a real big disappointment to me because we’ve worked so hard to do what the leadership wanted to get out more Republican sponsors.”

Sen. Dick Durbin (D-Illinois), the second-ranking Senate Democrat and an author of the bill, said Republicans had offered him “little to no hope” that the legislation would move forward. Durbin directly blamed Mitch McConnell (R-Kentucky), for the lack of movement, saying that the Majority Leader had “five Republican senators vocally, publicly opposing it, and he didn’t want to take them on.” But a spokesman for McConnell responded, “Discussions continue within our Conference on the issue.”

Senators have said recently they hoped the House would pass legislation to kick-start Senate action. Sen. John Cornyn (R-Texas), the Republican whip and a lead sponsor, said he’d hoped the House would move more quickly and provide momentum in the Senate, but “apparently we ran out of time.”

Time will be in short supply the rest of the year. After its summer recess, Congress will be in session for five weeks in September and October. Then lawmakers leave again until after the election, when they will only have a few weeks to wrap up end-of-the-year matters.

Grassley expressed some optimism, saying there was a “good chance” the legislation could pass in the fall, either in the five weeks after Labor Day or in the lame-duck session after the election in November. But that decision is up to McConnell. “There’s one person that decides what the agenda of the United States Senate is,” Grassley said, adding that he thought McConnell would “give fair consideration to it.”

“There’s no good reason why they haven’t moved forward,” Presidential advisor Valerie Jarrett complained last week, “other than politics.” Ohio State law professor Doug Berman agrees with the sentiment, but not on the culprit. He argued in his sentencing blog last Friday that “the main individual who should be blamed here is President Barack Obama, although lots of other blame can and should be spread around to all the folks who failed to fully appreciate that a series of small “smart on crime” bills would have been far superior and far more likely to become law than the mega-reform bill that was too complicated with too many controversial parts to make passage ever likely.”

Both Cornyn and Durbin say they can still get something passed under the next administration regardless of which party rules the Senate. But an opinion piece at Reason.com last week warned that the developing “massive populist fracture could affect the House vote. We’re hearing a revival of tough on crime tactics from the right (which Donald Trump thoroughly supports). And we’re seeing on the left a desire to punish those “evil” corporations that’s so strong they’re willing to abandon due process to make it happen. This is an election that is heavily revolving around punishing one’s perceived ‘enemies’.” Criminal justice reform pushes may face some significant challenges in the future.”

It’s getting very unlikely that the bill will pass this session. The Senate only has 51 more work days planned (that’s a total of 11 work weeks out of the remaining 26 weeks in the year). The House only has 42 days left. A new Congress starts in January, meaning that any bill still pending at the end of the year will disappear, and the process must start over in 2017.

Legal Information Services Associates provides research and drafting services to lawyers and inmates. With over 20 years experience in post-conviction motions and sentence modification strategy, we provide services on everything from direct appeals to habeas corpus to sentence reduction motions to halfway house and home confinement placement. If we can help you, we’ll tell you that. If what you want to do is futile, we’ll tell you that, too.

If you have a question, contact us using our handy contact page. 

 

Vol. 2, No. 31

This week:

Supreme Court to Decide Whether Johnson Applies to Guidelines “Career Offender”

Mathis Says It Does Not Really Matter What You Did

Back To School Time

Have You Stopped Beating Your Wife Yet?

High Livin’ in the Old Dominion

Sob Story

Former AUSA Writes Confessional

Sentencing Reform Bill Would Authorize Assigning ‘Risk Scores’ To Inmates

Sentencing Reform – Even FAMM Is Giving Up?

SUPREME COURT TO DECIDE WHETHER JOHNSON APPLIES TO GUIDELINES “CAREER OFFENDER”

The Courts of Appeal are badly divided on whether Johnson v. United States applies retroactively to collateral cases challenging federal sentences enhanced under the residual clause in Guideline § 4B1.2(a)(2) (defining “crime of violence”).

Today, the Supreme Court decided to answer the question. The Court granted certiorari to a case in which the 11th Circuit denied a petitioner the right to challenge his ‘career offender’ status under Johnson.

The Court leaves for its summer recess after today, resuming in October. A briefing and oral argument schedule will be set for the fall. A decision will probably be handed down early in 2017.

Beckles v. United States, Case No. 15-8544 (certiorari granted,           June 27, 2016)

MATHIS SAYS IT DOES NOT REALLY MATTER WHAT YOU DID

Everyone knows the Supreme Court handed down a decision last week in Mathis v. United States that further gutted the “burglary” element under the Armed Career Criminal Act. But what does Mathis mean?

Under the ACCA, two kinds of crimes count as “violent” priors that trigger the minimum 15-year sentence: the enumerated crimes clause (which identifies by name the offenses of burglary, extortion, arson, or use of explosives); and the force clause (crimes with use or threatened use of violence causing physical harm). For a state offense – such as burglary – to count under the enumerated crimes clause, it must contain elements no broader than the elements of the common law version of the offense.

At common law, a burglary is defined as entering a building or other structure without authorization for the purpose of committing a felony. If a state burglary statute, for example, said that entering a building without authorization for the purpose of committing a felony was a burglary, but defined building to include car, boat or airplane, it was broader than the ACCA version of burglary.

Richard Mathis has a passel of Iowa 3rd degree burglary convictions. An element of the offense is unauthorized entry into an “occupied structure.” So far, the statute sounds even narrower than the ACCA, meaning it should count toward Richard’s 15-year sentence. But elsewhere in the Iowa Code, an “occupied structure” was defined pretty broadly as “any building, structure, or land, water, or air vehicle.”

The 8th Circuit had ruled that the definition provided alternative elements of the offense, and because the elements were in the alternative, the statute was “divisible.” Therefore, the trial court was allowed to employ something the courts call “the modified categorical approach,” a fancy way of saying it could look at the state court record to find out exactly what Richard had done. It turned out he had burgled a house, which fits squarely within the common law definition of burglary, making the prior burglary a crime of violence.

Last week, the Supreme Court disagreed. It held that the “locations are not alternative elements, going toward the creation of separate crimes. To the contrary, they lay out alternative ways of satisfying a single locational element… A jury need not agree on which of the locations was actually involved. In short, the statute defines one crime, with one set of elements, broader than generic burglary—while specifying multiple means of fulfilling its locational element, some but not all of which (i.e., buildings and other structures, but not vehicles) satisfy the generic definition.”

The Supreme Court said a court must ask only “whether the defendant had been convicted of crimes falling within certain categories” and not about “what the defendant had actually done.” Richard had been convicted of an Iowa offense that could have been committed by stealing a radio out of a car, a barf bag out of an airplane, or a life vest from a boat. The fact that he ripped off someone’s house did not matter. It’s what he could have done to violate the statute that mattered.

Justice Alito, dissenting, argued that “the upshot of today’s decision is that all burglary convictions in a great many States may be disqualified from counting as predicate offenses under ACCA.”

Mathis v. United States, Case No. 15–6092 (Supreme Court,            June 23, 2016)

BACK TO SCHOOL TIME

The U.S. Dept. of Education has chosen 67 two-year and four-year colleges for a pilot program that will offer Pell Grants to inmates. The program – called Second Chance Pell – will enroll 12,000 prisoners at more than 100 federal and state correctional institutions across the country, aimed at prisoners likely to be released within the next five years.

In some locations, the program will begin as early as next week. Most of the colleges chosen will offer classes in person at the correctional facilities, while some will offer online classes.

Most prisoners have been ineligible for Pell Grants since Congress banned the aid in 1994. “That ban remains in place until Congress acts,” the Secretary of Education said last week. “We are using our experimental authority under the Higher Education Act to support this pilot.”

Studies show that for every dollar spent on college course for inmates, the government saves $4-5 in incarceration costs.

Inside Higher Ed, Prisoners to Get ‘Second Chance Pell’ (June 24, 2016)

HAVE YOU STOPPED BEATING YOUR WIFE YET?

Stephen Voisine pled guilty in state court to a misdemeanor assault on his wife. Several years later, he was charged with a violation of 18 U.S.C. § 922(g), because a conviction for a misdemeanor crime of domestic violence. The state statute provides that one can violate it intentionally or recklessly. Steve argued that 18 U.S.C. § 922(g) requires that the use of force needed for the offense to qualify as one that forfeits the right to possess guns must be intentional, not just reckless.

Today, the Supreme Court affirmed the lower courts, holding that a reckless domestic assault qualifies as a misdemeanor crime of domestic violence. The Court said that nothing in the phrase “use. . . of physical force” indicates that § 922(g)(9) distinguishes between domestic assaults committed knowingly or intentionally and those committed recklessly. “Dictionaries consistently define the word “use” to mean the “act of employing” something. Accordingly, the force involved in a qualifying assault must be volitional; an involuntary motion, even a powerful one, is not naturally described as an active employment of force. But nothing about the definition of “use” demands that the person applying force have the purpose or practical certainty that it will cause harm, as compared with the understanding that it is substantially likely to do so.”

The Court concluded that reckless conduct, “which requires the conscious disregard of a known risk, is not an accident: It involves a deliberate decision to endanger another. The relevant text thus supports prohibiting petitioners, and others with similar criminal records, from possessing firearms.”

Voisine v. United States, Case No. 14-10154 (Supreme Court,          June 27, 2016)
HIGH LIVIN’ IN THE OLD DOMINION

Former Virginia governor Bob McDonnell had a lousy marriage but a sweet deal. While running the state, the government alleged, Bob performed multiple “official acts” as governor in return for money, loans, expensive gifts and outings from Virginia businessman Jonnie R. Williams — who, prosecutors said, did all of those favors for the Guv in return for the his help in arranging state government contacts who could advance Williams’s business, the sale of a health supplement made from tobacco leaves.

The trial was pretty seamy, exposing a dysfunctional marriage between a power couple who seemed to enrich themselves through wielding their power. Sounds kind of like the Clintons, doesn’t it? The issue, however, before the Supreme Court was whether making a few phone calls and opening doors for Gentleman Jonnie to meet with state officials constituted “official acts” or merely acceptable back-scratching.

The Court held that given its interpretation of “official act,” the District Court’s jury instructions were erroneous, and the jury may have con- victed Governor McDonnell for conduct that is not unlawful. “Because the errors in the jury instructions are not harmless beyond a reason- able doubt, the Court vacates Governor McDonnell’s convictions.”

Today, the Supreme Court vacated the Governor’s conviction. It held that an “official act” is a decision or action on a “question, matter, cause, suit, proceeding or controversy.” That question or matter must involve a formal exercise of governmental power, and must also be something specific and focused that is “pending” or “may by law be brought” before a public official. To qualify as an “official act,” the public official must make a decision or take an action on that ques- tion or matter, or agree to do so. Setting up a meeting, talking to another official, or organizing an event—without more—does not fit that definition of “official act.”

McDonnell v. United States, Case No. 15-474 (Supreme Court,        June 27, 2016).

SOB STORY

Ralph Dennis was no rocket scientist. He sported an IQ of 74 and a taste for bud and coke. Besides drug dealing, his biggest mistake was to be friends with Kevin Burk.

Kevin was an ex-felon with a taste for guns. When he was caught with one, he volunteered to help the ATF rather than go back to prison. Agents asked him for names of violent criminals, and Kevin gave up Ralph as a guy who did home invasions.

So ATF concocted a reverse sting, telling Kevin to recruit Ralph to help him rob a stash house. Ralph was not enthusiastic. In fact, he turned Kevin down three times before agreeing to help, and then only because Kevin sold Ralph the sob story that he needed money to help pay for his mom’s cancer treatments.

The ATF wanted Ralph to bring guns to the party, but Ralph didn’t have any. He wanted to use stun guns on the stash house guards so no one got hurt. So Kevin provided Ralph with a gun, which he had when the ATF busted him.

At trial, Ralph’s lawyer asked for an entrapment instruction. The district court refused, saying that Ralph’s prior crimes proved he was predisposed to join the robbery scheme, and he could have withdrawn but he did not.

Last week, the 3rd Circuit granted Ralph a new trial, holding the jury should have been given an entrapment instruction. The appeals panel cited Kevin’s central role in recruiting, coaching and equipping Ralph, noting that “Burk’s plea affected Dennis’ decision to join the scheme. And this is unsurprising—a friend whom he had known for years asked for help to pay for his mother’s cancer treatment…. Indeed, the entirety of Burk and Dennis’ conversation seems predicated on friendship.”

The district court found Ralph’s evidence on whether he was predisposed to commit the crime was equivocal because while his three refusals might suggest he was not predisposed, they also showed he could say ‘no’ to Kevin when he wanted to. The Court of Appeals found, however, that “it was not for the District Court to decide the evidence ‘cut both ways’ and draw a conclusion against Dennis. Similarly, it was impermissible for the Court to credit the Government’s evidence when Dennis presented evidence to the contrary.”

Weighing evidence and drawing inferences is a job for the jury, the 3rd Circuit said, not the judge. There was enough evidence to justify the entrapment instruction, and Ralph was thus entitled to a new trial.

United States v. Dennis, Case No. 14-3561 (3rd Circuit,                         June 24, 2016)

SENTENCING REFORM BILL WOULD AUTHORIZE ASSIGNING ‘RISK SCORES’ TO INMATES

One aspect of the pending sentencing reform bill attracted some critical attention last week: Truthout, a progressive website, reported on a Pro Publica study of the Act’s provision that would require the government to rate federal prisoners’ risk of committing a future crime and treat them differently according to those ratings. The measure directs the Attorney General to develop a new formula for predicting future behavior or adopt an existing tool. The BOP would then use the algorithm to score and classify inmates.

Inmates who receive low “risk scores” – and those who manage to lower their scores over time – would be allowed to shave time off of their sentences with credits earned through rehabilitation and education programs. “High risk” inmates would not be eligible for sentence reduction.

Such tests are increasingly popular around the country, Truthout complained, used to make decisions about everything from bail to sentencing. The scores are meant as a counterweight to the vagaries and biases of human decisions.

Yet the formulas are often not transparent. ProPublica recently investigated one popular tool sold by a for-profit company and found that it’s frequently wrong and is biased against blacks.

According to an analysis by Federal Public & Community Defenders, the risk scoring system “described in the bill is novel and untested.” The report argues that the scoring of prisoners would be a problem because factors that go into risk assessment calculations tend to correlate with socioeconomic class and race. A fairer and more effective approach, the group says, would be to make recidivism-reduction programs available to all inmates equally.

Truthout, The Senate’s Popular Sentencing Reform Bill                              Would Sort Prisoners by Risk Score (June 24, 2016)

FORMER AUSA WRITES CONFESSIONAL

A former Assistant United States Attorney turned defense attorney wrote a long and candid article last week discussing the mindset of federal prosecutors. The piece included a discussion about how AUSAs approach the violation of a defendant’s constitutional rights.

Prosecutors are encouraged to argue that rights are irrelevant, White said. “The argument goes by genteel names like ‘harmless error’ and ‘lack of prejudice’ and ‘immaterial,’ and it is omnipresent in modern criminal procedure. As a prosecutor, it was my job on dozens of occasions to invoke those doctrines to assert that even if defendants’ rights were violated, those violations didn’t matter.”

As an example, White said, “the 4th Amendment requires police to get a search warrant before they make forcible entry to your home to search it. May police officers lie to a magistrate to get that warrant, or deliberately omit information that contradicts the evidence they offer? No, says the Supreme Court – that would violate your rights. But the violation only has a remedy if the lie is material – that is, if the warrant application, stripped of the lie or supplemented with the deceitfully omitted information, would no longer be enough to support probable cause. So when a defendant discovers that law enforcement agents have lied to get a warrant, a prosecutor has every incentive to argue that the lie didn’t matter…”

“The prosecutor will be making this argument in the context of a search that did turn up incriminating evidence,” White wrote, “which tends to bias judges towards upholding searches. After all… wasn’t the cop’s suspicion proved right? Probable cause is a very relaxed and inherently subjective standard, requiring only a “fair probability” that evidence will be found. The practical effect is that law enforcement can lie in warrant applications with relative impunity, and it’s a prosecutorial duty to think of ways to explain how those lies are irrelevant.”

The deal is different if the defendant lies… “If federal agents lie about you to a magistrate to get a search warrant, the question is whether the lie did actually make a difference. But if you lie to federal agents, the standard is far less forgiving… Thus prosecutors are trained to treat defendants’ wrongdoing harshly and government wrongdoing leniently.”

Reason, Confessions of an Ex-Prosecutor (June 23, 2016)

SENTENCING REFORM – EVEN FAMM IS GIVING UP?

Anyone who does not think the news cycle drives Congress probably holds title to the Brooklyn Bridge. Last week, the shootings in Orlando dominated the news, and Congress was mired in hastily written bills that would have banned assault rifles – used in fewer than 3% of murders – and kept people on the government’s “no-fly” list from buying guns. Democrats staged a “sit in” on the floor of the House because they were not getting their way. There was no sentence reform talk on Capitol Hill. The Sentencing Reform and Corrections Act of 2015 continues to languish in the Senate (S. 2123) and the House (H.R. 3713).

It hardly matters that the legislation enjoys bipartisan support. Last week, Sen. John Cornyn (R-Texas) wrote in the Dallas Morning News that “locking people up and throwing away the key, as it turns out, is not always the most effective way to stop crime. It is also an expensive and inefficient way to spend taxpayer dollars.” Citing Texas’s dramatic decrease in prison populations, Sen. Cornyn argued, “the Texas model is worth bringing to the rest of the country. Now Congress has that chance. The Sentencing Reform and Corrections Act is a bipartisan bill that incorporates many of these policies that have proven effective in conservative states – our laboratories of democracy. Importantly, this legislation will also help restore a key part of our criminal justice system that is too often forgotten: rehabilitation. Through education, job training and faith-based programs, low-level inmates will learn valuable life skills that they can take back home to their communities, helping them become productive members of society.”

But enough happy talk. Although the year is only half over according to the calendar, Congress is already winding down. The Senate only has 55 more work days this year (that’s a total of 11 work weeks out of the remaining 27 weeks in the year). The House only has 42 days left. A new Congress starts in January, meaning that any bill still pending at the end of the year will disappear, and the process must start over in 2017. That’s very little time to get sentencing reform passed.

In a puff story last week on Kevin Ring, former lobbyist and Federal inmate, now vice president of Families Against Mandatory Minimums, The Hill referred to sentencing reform legislation as “once the political darling of a divided Senate and now an apparent victim of the rapidly shrinking 2016 congressional calendar… With the November election looming — and all the incendiary rhetoric that has colored this year’s contest — FAMM is happy to wait until 2017 for wholesale reforms, Ring says. The group had formerly supported a bipartisan effort from the Senate Judiciary Committee, but now he fears being forced to fight back a myriad of tough-on-crime amendments put forward by jumpy lawmakers if the bill were to reach the floor.

“We think the window is, if not closed, close to closing,” The Hill quoted Ring as saying. “But in our view, this isn’t the best time to be passing criminal justice reform anyway. In a presidential election year, you’re beating back really bad political ideas. The worst mandatory minimums are passed during election years because they are seen as politically valuable.”

Legal Information Services Associates provides research and drafting services to lawyers and inmates. With over 20 years experience in post-conviction motions and sentence modification strategy, we provide services on everything from direct appeals to habeas corpus to sentence reduction motions to halfway house and home confinement placement. If we can help you, we’ll tell you that. If what you want to do is futile, we’ll tell you that, too.

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

Vol. 2, No. 28

This week:

9th Circuit Gives New Hope for Sentence Reduction Grants to Rule 11(c)(1) Defendants

The Sobering Math on Clemency

DOJ Finds That BOP is Overcharged for Outside Medical Care

Get Your Facts Straight – Then You Can Hammer the Defendant

BOP “Revolving Door” Blamed for Poor Oversight of Private Prisons

On the 30th Anniversary of Len Bias’ Death, Time Conspires Against Sentencing Reform

9^th CIRCUIT GIVES NEW HOPE FOR SENTENCE REDUCTION GRANTS TO RULE 11(c)(1) DEFENDANTS

The Sentencing Commission reports that, year to year, about 97 percent of all federal defendants take plea deals. One of the options for a plea deal – Rule 11(c)(1) of the Federal Rules of Criminal Procedure – lets the government and defendant agree on a specific sentence. The judge then can either accept the sentence as agreed upon, or reject the sentence, in which case the plea agreement dies and the defendant reverts to a “not guilty” plea.

A Rule 11(c)(1) plea is often a pretty good deal, because the defendant knows just what’s coming down the road. But over the past few years, a lot of defendants have had buyer’s remorse, after they found out that the 2-level reductions in the drug tables didn’t necessarily help them.

The issue got to the Supreme Court a few years ago in Freeman v. United States. The opinion was badly fractured, with the consensus generally being interpreted to be that an 11(c)(1) defendant could only get a 2-level reduction if the plea agreement showed that his or her agreed-on sentence was set in reliance on the Guidelines.

Last week, the en banc 9^th Circuit took a fresh whack at interpreting Freeman, and reversed a district court’s determination that Tyrone Davis was not eligible for the 2-level reduction. Applying Marks v. United States, a Supreme Court case that explains how to interpret fractured Supreme Court opinions, 9^th held that Freeman lacks a controlling opinion “because the plurality and concurring opinions do not share common reasoning whereby one analysis is a logical subset of the other.”

This sounds pretty dry so far, but what it means, the Court said, is “even when a defendant enters into an 11(c)(1)(C) agreement, the judge’s decision to accept the plea and impose the recommended sentence is likely to be based on the Guidelines; and when it is, the defendant should be eligible to seek § 3582(c)(2) relief.” The Court thus ruled that all Freeman says is that “defendants sentenced under Rule 11(c)(1)(C) agreements are not categorically barred from seeking a sentence reduction under § 3582(c)(2).”

Most other circuits have read Freeman restrictively, with only the D.C. Circuit joining the interpretation adopted last week by the 9^th. This could set up a Supreme Court revisiting of the issue, as defendants elsewhere file for 2-level § 3582(c)(2) reductions, only to be denied by courts of appeal that disagree with the 9^th and D.C. Circuits.

The 9^th Circuit argues that by the 2-level reductions “Congress and the Sentencing Commission sought to address the urgent and compelling problem of crack-cocaine sentences. To read Freeman as restrictively as other courts have done extends the benefit of the Commission’s judgment only to an arbitrary subset of defendants whose agreed sentences were accepted in light of a since-rejected Guidelines range based on whether their plea agreements refer to the Guidelines.”

United States v. Davis, Case No. 13-30133 (9^th Cir.  June 13, 2016)

THE SOBERING MATH ON CLEMENCY

For anyone wondering about the snails’ pace of the disorganized Obama clemency process – which a Reason article last week said has “stranded many of the prisoners and families it was supposed to help” – a remedial math lesson is all that’s required.

In January 2016, Pardon Attorney Deborah Leff quit barely a year after she got the job. Leff complained that DOJ had “not fulfilled its commitment to provide the resources necessary for my office to make timely and thoughtful recommendations on clemency to the president.” According to USA Today, “Leff said Deputy Attorney General Sally Yates had overruled her recommendations in an increasing number of cases—and that in those cases, the president was unaware of the difference of opinion.” After her departure, a longtime federal prosecutor, Robert A. Zauzmer, was appointed to fill her shoes.

Since Leff’s departure, the Office of the Pardon Attorney remains overwhelmed. In January, the office only had 10 lawyers, which The New York Times noted is “virtually the same size it was 20 years ago,” despite the fact that the number of clemency petitions has increased substantially. “From all accounts of what we’ve heard, the president is personally engaged in this issue,” an observer said. “I think the problem isn’t lack of will, but the lack of infrastructure.”

Early this year, OPA announced it was hiring 16 new attorneys, which would bring the total number of lawyers in the office to 26.

With 10,621 commutation petitions pending in May, and only 26 attorneys available to review, this means that each staffer is responsible for thoroughly reviewing roughly 408 petitions each over the next 6 or so months before Obama leaves office. And the petitions lucky enough to get vetted through the first stage have to endure the bureaucratic vetting process in place before eventually landing on the president’s desk.

Volunteer lawyers known as Clemency Project 2014 have been vetting petitions for the Pardon Attorney. As of June 2, CP14 has sent only 1,150 petitions to the Office of the Pardon Attorney for review. Of those, 145 petitions have been acted on, which means they’ve either been granted or denied by the President, and 111 have been granted.

At this pace, the Reason article argued, “it seems likely that Obama’s clemency initiative will benefit few, while the majority of otherwise eligible inmates will remain behind bars.”

Reason, President Obama’s Clemency Project is a bureaucratic nightmare (June 10, 2016)

DOJ FINDS THAT BOP IS OVERCHARGED FOR OUTSIDE MEDICAL CARE

The Department of Justice Office of Inspector General complained in a report last week that BOP spent $100 million in 2014 than other federal agencies paid for the same services.   Thus, the report suggested, it’s not surprising that BOP’s spending for outside medical services increased 24 percent that year, while its overall budget increased at less than half that rate.

The OIG said, “We found that the BOP is the only federal agency that pays for medical care that is not covered under a statute or regulation under which the government sets the agency’s reimbursement rates, usually at the Medicare rate. Instead, the BOP solicits and awards a comprehensive medical services contract for each BOP institution to obtain outside medical services. At the end of FY 2014, all of the BOP’s comprehensive medical services contracts paid a premium above the applicable rates paid by Medicare for medical services.”

The report said that BOP “has historically opposed” to being required to may Medicare reimbursement rates, like other federal law enforcement agencies are required to do. BOP said that because its inmates are generally incarcerated for longer periods than detainees held by other federal law enforcement agencies, it must provide both acute and chronic (long-term) medical care for its inmates, while other law enforcement agencies provide only acute care. The OIG found that BOP “has not fully explored other legislative options that might help it control its medical costs without compromising provider access… As a result, while federal law requires that medical providers who treat members of the military and their dependents, Veterans, Native Americans, federal pre-trial detainees, and immigration detainees accept the Medicare rate when reimbursed by the federal government, those same providers are allowed to charge the BOP a premium above the Medicare rate when treating BOP inmates.”

DOJ Office of Inspector General, The Federal Bureau of Prisons’ reimbursement rates for outside medical care (June 2016)

GET YOUR FACTS STRAIGHT… THEN HAMMER THE DEFENDANT

Defendant John Doe Brown (we’re using a pseudonym here) was convicted of production of child porn, for photographing three minors. The district court hammered him with a 60-year sentence, commenting repeatedly on “the trauma to these three children,” the fact that “three children” would have to “worry for the rest of their lives” about the photographs, and that Brown “destroyed the lives of three specific children.”

The problem was that while two of the kids had been posed for pictures, John Doe had taken photos of the third child only while she slept. In fact, her mother declined to submit a victim impact statement specifically because her daughter “was unaware of the abuse” and had experienced “no negative impact.”

Last week, the 2^nd Circuit reversed the sentence, underscoring a problem that is generally applicable to all federal defendants. The appellate court explained that “the district court’s explanation suggests that the individual harm suffered by each of Brown’s three victims played a critical role in its decision to impose three consecutive 20‐year sentences.  But the sentencing transcript also suggests that the district court may have misunderstood the nature of that harm as to Brown’s third victim. Three times the court emphasized the mental anguish that “three specific children” would suffer as a result of Brown’s abuse. Brown’s third victim, however, has no knowledge of having been victimized. To be sure, the district court was entitled to punish Brown for that abuse regardless of whether the victim was aware of it. But given the district court’s repeated emphasis on the fact that Brown had destroyed the lives of “three specific children,” we conclude that it is appropriate to remand for resentencing to ensure that the sentence is not based on a clearly erroneous understanding of the facts.”

The Court said “we understand and emphatically endorse the need to condemn Brown’s crimes in the strongest of terms. But the Supreme Court has recognized that ‘defendants who do not kill, intend to kill, or foresee that life will be taken are categorically less deserving of the most serious forms of punishment than are murderers’… The sentencing transcript suggests that the district court may have seen no moral difference between Brown and a defendant who murders or violently rapes children, stating that Brown’s crime was “as serious a crime as federal judges confront,” that Brown was “the worst kind of dangerous sex offender,” and that he was “exactly like” sex offenders who rape and torture children.  Punishing Brown as harshly as a murderer arguably frustrates the goal of marginal deterrence, “that is, that the harshest sentences should be reserved for the most culpable behavior…” Finally, to the extent that the district court believed it necessary to incapacitate Brown for the rest of his life because of the danger he poses to the public, we note that defendants such as Brown are generally less likely to reoffend as they get older.”

One does not have to like crimes such as John Doe’s offense to understand – often from personal experience – that some district judges get hyperbolic at sentencing, and often mangle the facts. The 2^nd Circuit decision suggests that appeals that focus on intemperate remarks at sentencing may be fruitful.

United States v. Brown, Case No. 13-1706 (2^nd Cir. June 14, 2016)

BOP “REVOLVING DOOR” BLAMED FOR POOR OVERSIGHT OF PRIVATE PRISONS

Review of 20,000 pages of records obtained from the BOP after a Freedom of Information Act request has led to a scathing report in The Nation last week, that accuses the BOP of ignoring signals of terrible conditions in private prisons with which it contracts.

A fatal 2012 uprising at Adams County Correctional Center in Natchez, Mississippi – run by Corrections Corporation of America – was one of four riots to explode in the BOP’s private prisons since 2008, all triggered by grievances over medical care. The trove of previously unreleased monitoring reports, internal investigations, and other documents show that the BOP had been warned of substandard care by its own monitors for years but failed to act.

Doug Martz, chief of the BOP’s private-prison contracting office at the time of the riot, said, “Even before the officer was killed, there were significant issues” with CCA’s management. “Inadequate medical care, low staffing levels, food-service issues. When you put all those together, it became ignitable.” After the riot, he says, “We wanted to walk away.” But when he sent a closure recommendation up the chain to the bureau’s CFO, Martz says, “We were flat out told, ‘No.’ ”

Martz, who retired in in 2014 after 25 years with the BOP, says that the agency’s failure to shut down Adams was due in part to a cozy relationship between bureau leadership and private-prison operators. In 2011, for example, just a year before the riot, BOP director Harley Lappin – who resigned at the same time he was arrested for drunk driving – joined CCA as executive vice president. Last year, he earned more than $1.6 million. At least two other BOP directors have also moved on to leadership positions at companies with BOP contracts, and Martz charges that one of them appeared at bureau meetings with contractors. “It made things difficult,” he says.

Last February, The Nation reported that at least 38 men died in privately run BOP prisons from 1998 to 2014 due to inadequate medical care. The new records show that in the last 9 years alone, BOP monitors documented 34 inmate deaths due to substandard medical care. Fourteen of the deaths occurred in prisons run by CCA. Fifteen others were in prisons operated by the GEO Group.

The report says, “In some facilities, inmates went months without seeing a doctor. Some prisoners who required emergency care were not transferred to a hospital, in an apparent attempt to save costs.”

According to The Nation, “The records and interviews with former BOP officials reveal a pattern: Despite dire reports from dozens of field monitors, top bureau officials repeatedly failed to enforce the correction of dangerous deficiencies and routinely extended contracts for prisons that failed to provide adequate medical care.”

The Nation, Federal Officials Ignored Years of Internal Warnings About Deaths at Private Prisons (June 15, 2016)

ON THE 30^TH ANNIVERSARY OF LEN BIAS’ DEATH, TIME CONSPIRES AGAINST SENTENCING REFORM

In life, Len Bias was basketball’s next great hope, contender for a crown that went instead to Michael Jordan. In death, he became a trigger for the war on drugs.

NBC Sports reported last weekend that Bias’s 1986 cocaine overdose helped sparked a panic, stoked by false rumors about crack cocaine – which was not involved in Bias’s overdose and death – and a high-stakes bipartisan political furor against drugs. When the dust had settled, the Anti Drug Abuse Act of 1986 had been passed, the 100-to-1 ratio for crack to powder coke had been adopted, and thousands of low-level drug offenders — most of them young and black — were destined to become federal inmates over the next three decades.

Thirty years later, NBC says, America is still reeling from the impact. In the year before the ADA passed, there were about 35,000 people in federal prison, 9,500 of whom were in on drug charges. Today, according to the BOP, there are about 195,000 federal inmates, with half serving time for drugs.

So where is the Sentencing Reform and Corrections Act of 2015? It’s pretty much stalled, with the Senate version (S. 2123) not scheduled for floor action, and the House version (H.R. 3713) still locked in a dispute between Democrats and Republicans over mens rea reform.

In the Senate, the raging battle is between conservatives who support reform and conservatives who oppose it. Last week, the conservative Federalist argued that the “Sentencing Act is not perfect. No legislation is. But it represents a good-faith, bipartisan effort to improve our prisons and courts, making the former more efficient and the latter more fair. It is broadly in line with state-level reforms that have already yielded considerable success. The proposed measures are also modest, making it exceedingly unlikely this law will precipitate a crime wave. It is a well-conceived and responsible piece of legislation.”

The conservative Heritage Foundation’s Daily Signal ran a puzzling piece last week which told the story non-violent drug offender Sherman Chester (who recently received a commutation after serving 20 years of his draconian mandatory minimum sentence) even while arguing that the 1986 ADA was a good idea at the time. But now, the Daily Signal says, “when it comes to reforming mandatory minimum laws, it is important to consider the nature of the serious offenses giving rise to such penalties and the harms they cause to society. At the same time, it is important to consider what should be done for people like Sherman Chester so that, in appropriate cases, the quality of mercy is not strained. This is a discussion worth having.”

Julie Stewart, president of Families Against Mandatory Minimums, wrote a piece in the liberal Huffington Post last week urging Congress to make the Fair Sentencing Act of 2010 retroactive, but given the fact that S. 2123 has already had many of its retroactive provisions gutted in order to garner Republican support, the likelihood that Congress would ram through FSA retroactivity in the waning days of 2016 falls somewhere between slim and none.

In fact, the odds that the Sentencing Reform and Corrections Act of 2015 will be voted on before the end of the year are getting pretty long. The Senate only has 60 more work days     this year, the House 46. A new Congress starts in January, meaning that any bill still pending at the end of the year will disappear, and the process must start over in 2017.

Legal Information Services Associates provides research and drafting services to lawyers and inmates. With over 20 years experience in post-conviction motions and sentence modification strategy, we provide services on everything from direct appeals to habeas corpus to sentence reduction motions to halfway house and home confinement placement. If we can help you, we’ll tell you that. If what you want to do is futile, we’ll tell you that, too.

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

 

Vol. 2, No. 27

The Latest on Johnson v. United States… with only a week to go!

11th Circuit Hands Down 11th Hour Johnson 2255 Holdings

11th Circuit Stands Fast Against Letting “Career Offenders” Get Johnson Benefit

List Of Appeals Decisions On Johnson’s Application To “Career Offender” Guidelines Cases

Johnson Applicability To Guidelines Cases Still Pending At Supreme Court

 

11TH CIRCUIT HANDS DOWN 11TH HOUR JOHNSON 2255 HOLDINGS

A trio of cases last week provided a little last-minute clarification and consider-able headaches to inmates filing post-conviction motions in the 11th Circuit under Johnson v. United States. The Johnson claims must be in inmate legal mail by Monday, June 27.

In In re Joseph Rogers, Jr., handed down last Friday, The Circuit explained that it decides to deny a Johnson application for second-and-successive 2255 only if “it is clear that the motion will not contain a Johnson claim. This is so when: (1) the sentencing court record demonstrates that the sentencing court specifically identified three prior convictions as qualifying as Armed Career Criminal Act predicates under the elements or enumerated crimes clauses, or based on the “serious drug offense” provision of the ACCA; or (2) under binding precedent, it is clear that the prior convictions the sentencing court identified categorically qualify as ACCA predicates under the elements or enumerated crimes clauses or, alternatively, the ACCA’s “serious drug offense” provision. When the record does not make clear that the sentencing court relied solely on the ACCA’s still-valid provisions to classify each predicate offense and binding precedent does not otherwise demonstrate that only valid ACCA clauses are implicated, we apply Descamps v. United States. At that point, if it is unclear from binding precedent that the state statute at issue is divisible under Descamps, then the applicant has made out a prima facie case that his application contains a Johnson claim under § 2255(h).”

In a case decided earlier last week, movant Keith Adams had originally received an ACCA sentence in part because of a prior Florida burglary. At his sentencing, the question of whether the Florida burglary counted as an ACCA predicate was not resolved. In his current motion, Adams argued that under Descamps – a Supreme Court case decided in 2013 – there was no way the burglary could count under the ACCA’s “enumerated crimes” clause, because it was broader than the common-law definition of burglary. Thus, it could only count against him under the ACCA’s residual clause, which Johnson invalidated.

The 11th Circuit gave Adams permission to pursue his claim. It said “the sentencing court may have relied on the residual clause in imposing Mr. Adams’s sentence based on his prior Florida burglary conviction. Thus, his sentence may be invalid under Johnson.” The Court said Adams’s claim “implicates Johnson, and the ambiguity surrounding the sentencing court’s decision requires us to look to the text of the relevant statutes, including the ACCA, to determine which, if any, ACCA clauses Mr. Adams’s prior convictions fall under. In fulfilling this duty, we should look to guiding precedent, such as Descamps, to ensure we apply the correct meaning of the ACCA’s words. Although Descamps bears on this case, it is not an independent claim that is itself subject to the gatekeeping requirements.”

Morris Hires had a different problem. He was sentenced under the ACCA based on prior convictions for drug trafficking, armed robbery and aggravated assault. Previously, the district court had looked at the facts of the offense, and decided the ag assault was violent under the ACCA’s “elements clause,” because it used or threatened force against the victim. Morris argued the aggravated assault could not apply because under Descamps, it was indivisible, and thus could only be considered violent under the Johnson-discredited “residual clause.”

The 11th Circuit denied Morris the right to file a second 2255. It said “what matters here is whether, at sentencing, Hires’s prior convictions qualified pursuant to the residual clause, which would render his sentence subject to successive § 2255 challenge under Johnson, or pursuant to the elements clause, which would not. Again, Descamps addressed whether the modified categorical approach could be used when examining whether a prior felony conviction qualified as a predicate violent felony under the enumerated clause. Descamps had nothing to do with the residual clause. Johnson, on the other hand, held that the residual clause is unconstitutionally vague. Johnson had nothing to do with the circumstances under which the modified categorical approach could be used. Because Hires’s convictions qualified under the elements clause, that settles the matter for Johnson-residual clause purposes regardless of whether those convictions would count were Hires being sentenced today… Johnson does not serve as a portal to assert a Descamps claim.”

In re Keith Devon Adams, Case No. 16-12519 (11th Cir.                        June 15, 2016)

In re Morris Vernell Hires, Case No. 16-12744 (11th Cir.                         June 15, 2016)

In re Joseph Rogers, Jr., Case No. 16-12626 (11th Cir. June 17, 2016)

11th CIRCUIT STANDS FAST AGAINST LETTING “CAREER OFFENDERS” GET JOHNSON BENEFIT

The 11th Circuit last week continued to stand alone among Federal circuits in denying inmates sentenced under the “career offender” Guidelines the right to seek Johnson relief. The Court denied Datrist McCall’s application in a terse order last Friday, one notable for its sharp dissent by Circuit Judge Beverly Martin.

Judge Martin said, “The government agrees that Johnson makes § 4B1.2(a)(2)’s identical language unconstitutional, at least on direct appeal. But our court ruled that it doesn’t. See United States v. Matchett. Last month this court extended Matchett further and held that prisoners can’t even make ‘a prima facie showing’ that Johnson applies to the pre-Booker mandatory guidelines. See In re Griffin. I believe both Matchett and Griffin were wrongly decided. All eleven of the other courts of appeals have either held or assumed that Johnson makes the identical language in § 4B1.2(a)(2) unlawful. And though no court of appeals has decided whether Johnson applies retroactively to either mandatory or advisory § 4B1.2(a)(2) sentences, at least eight have ‘certified’ ‘a prima facie showing’ that the Supreme Court ‘made [Johnson] retroactively applicable to [§ 4B1.2(a)(2)] cases on collateral review’.”

The 11th Circuit has been antagonistic to Johnson in a number of ways. Judge Martin complained that the Circuit has been in “the minority of courts that, from the beginning, said prisoners could not benefit from Johnson if they had already filed an earlier § 2255 motion. Then in the two months since Welch v. United States removed this obstacle, our court has denied hundreds of applications to file Sec. 2255 motions based on Johnson by scrutinizing whether the applicant’s proposed (in other words, not yet filed) motion will prevail on the merits.”

Judge Martin argued that the 11th Circuit’s headlong plunge into deciding second-and-successive motions has been reckless. “In some of these cases, our inquiry has turned on facts that no district court ever found, such as whether a defendant committed every crime listed in his presentence investigation report in the manner alleged in that report. Some orders have even decided questions of first impression about how a state’s courts interpret the elements of its own criminal statute. We have even suggested in a published opinion that judges have to ignore Supreme Court cases other than Johnson when adjudicating Johnson claims, even where those cases otherwise apply retroactively. Again, all these decisions were made without briefing or argument from a lawyer, within a tight 30-day deadline and in a deluge of hundreds of applications. And many of these applications were denied by split panels. Most troubling, these orders ‘shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari.’ Of course, when we grant an application, the prisoner can file his motion, and it will then be subject to adversarial presentation and the normal appeal process. But when we deny an application, that prisoner gets no further consideration of his sentence.”

In re Datrist McCall, Case No. 16-12972 (June 17, 2016),                        Martin, J., dissenting.

LIST OF APPEALS DECISIONS ON JOHNSON’S APPLICATION TO “CAREER OFFENDER” GUIDELINES CASES

For the benefit of last-minute Johnson filers, we reprint the list of Circuit decisions holding or assuming that Johnson makes the residual clause in Guideline Sec. 4B1.2(a)(2) unlawful, all from Judge Martin’s dissent in In re Datrist McCall:

United States v. Soto-Rivera, 811 F.3d 53 (1st Cir. 2016)

United States v. Welch, __ Fed.Appx __ (2nd Cir. Feb. 11, 2016)

United States v. Townsend, __ Fed.Appx. __ (3rd Cir. Dec. 23, 2015)

United States v. Frazier, 621 Fed.Appx 166 (4th Cir. 2015)

United States v. Estrada, No. 15-40264 (5th Cir. Oct. 27, 2015)

United States v. Pawlik, __ F.3d. __ (6th Cir. May 13, 2016)

Ramirez v. United States, 799 F.3d 845 (7th Cir. 2015)

United States v. Taylor, 803 F.3d 931 (8th Cir. 2015)

United States v. Benavides, 617 Fed.Appx 790 (9th Cir. 2015)

United States v. Madrid, 805 F.3d 1204 (10th Cir. 2015)

In re Booker, No. 16-3018 (D.C. Cir. June 10, 2016)

Judge Martin also listed seven other circuit decisions that have certified “a prima facie showing” that the Supreme Court made Johnson retroactively applicable to Guidelines § 4B1.2(a)(2) cases on collateral review.  Those cases include the following:

In re Hubbard, __ F.3d. __ (4th Cir. June 8, 2016)

In re Holston, No. 16-50213 (5th Cir. May 17, 2016)

In re Grant, No. 15-5795 (6th Cir. Mar. 7, 2016)

Swanson v. United States, No. 15-2776 (7th Cir. Sept. 4, 2015)

Rusan v. United States, No. 15-2561 (8th Cir. June 2, 2016)

Williams v. United States, No. 16-70558 (9th Cir. June 1, 2016)

In re Encinias, __ F.3d. __, (10th Cir. Apr. 29, 2016)

JOHNSON APPLICABILITY TO GUIDELINES CASES STILL PENDING AT SUPREME COURT

Two petitions for certiorari currently on file at the Supreme Court ask whether Johnson v. United States applies retroactively to collateral cases.

In Jones v. United States, Case No. 15-8629, the petitioner is challenging whether Johnson invalidates the residual clause of the Sentencing Guidelines’ career-offender provision Guidelines’ residual clause, and whether his robbery conviction should qualify as a “crime of violence” under the residual clause, based on the clause’s Application Note, “even though the Note does not interpret and conflicts with the text of the guideline.”

Beckles v. United States, Case No. 15-8544, raises the same three questions (except that Beckles’s third question involves possession of a sawed-off shotgun). Both the Jones and Beckles petitions urge prompt action because the Antiterrorism and Effective Death Penalty Act’s one-year bar on Johnson claims runs June 26, 2016. They will not make that deadline.

However, both petitions have been relisted, which means they have been considered at one Supreme Court conference on certiorari petitions, and they have been ordered back on the list for further consideration. What a “relist” means is hardly ever clear. Sometimes it means nothing. Sometimes it means Justices are trying to round up enough votes for their position, or they want to study it more, or they want to double-check their decision to hear a case before announcing a grant of certiorari.

The Court’s final certiorari conference before its three-month summer recess is set for Thursday of this week. The issue whether to grant certiorari to these cases may be decided then.

Beckles v. United States, Case No 15-8544 (Supreme Court)
Jones v. United States, Case No. 15-8629 (Supreme Court)

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.

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Vol. 2, No. 26

This week:

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

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

Irreconcilable Differences at 7th Circuit over Drug Quantities

Sentencing Commission Proposes Priorities for Next Year

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

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

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

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

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

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

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

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

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

Beckles v. United States, Case No 15-8544

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

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

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

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

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

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

IRRECONCILABLE DIFFERENCES

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

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

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

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

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

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

SENTENCING COMMISSION PROPOSES PRIORITIES FOR NEXT YEAR

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Legal Information Services Associates provides research and drafting services to lawyers and inmates. With over 20 years experience in post-conviction motions and sentence modification strategy, we provide services on everything from direct appeals to habeas corpus to sentence reduction motions to halfway house and home confinement placement. If we can help you, we’ll tell you that. If what you want to do is futile, we’ll tell you that, too.

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

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Vol. 2, No. 25

This week:

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

A “Holistic” Approach To Drug Conspiracies

Judge Unfair To Justice Department, Appeal Claims

2-Level Reduction Must Be Measured Against Revised Sentence

Inmate Lawsuits A Tough Row To Hoe

Painting With A Broad Brush On Clemency

Requiem For Sentencing Reform?

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

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

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

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

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

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

A “HOLISTIC” APPROACH TO DRUG CONSPIRACIES

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

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

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

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

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

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

JUDGE UNFAIR TO JUSTICE DEPARTMENT, APPEAL CLAIMS

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

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

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

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

2-LEVEL REDUCTION MUST BE MEASURED AGAINST REVISED SENTENCE

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

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

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

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

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

INMATE SUIT A TOUGH ROW TO HOE

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

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

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

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

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

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

PAINTING WITH A BROAD BRUSH ON CLEMENCY

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

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

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

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

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

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

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

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

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

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

A REQUIEM FOR SENTENCING REFORM?

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

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

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

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

Legal Information Services Associates provides research and drafting services to lawyers and inmates. With over 20 years experience in post-conviction motions and sentence modification strategy, we provide services on everything from direct appeals to habeas corpus to sentence reduction motions to halfway house and home confinement placement. If we can help you, we’ll tell you that. If what you want to do is futile, we’ll tell you that, too.

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

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

Vol. 2, No. 24

This week:

Say What You Mean

Better Late Than Never

Bite Me

Tipping Allowed

Consequences

Bipartisan Drum Beating  For Sentencing Reform

 

SAY WHAT YOU MEAN

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

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

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

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

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

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

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

BETTER LATE THAN NEVER

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

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

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

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

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

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

BITE ME

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

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

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

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

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

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

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

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

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

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

TIPPING ALLOWED

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

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

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

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

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

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

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

CONSEQUENCES

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

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

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

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

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

BIPARTISAN DRUM BEATING FOR SENTENCING REFORM

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

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

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

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

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

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

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

Legal Information Services Associates provides research and drafting services to lawyers and inmates. With over 20 years experience in post-conviction motions and sentence modification strategy, we provide services on everything from direct appeals to habeas corpus to sentence reduction motions to halfway house and home confinement placement. If we can help you, we’ll tell you that. If what you want to do is futile, we’ll tell you that, too.

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

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

Vol. 2, No. 23

This week:

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

Judge Says Government Lawyers Need Ethics Lessons

Clemency Petitions Referred To DOJ Now Top 1000

The Good Wife

Lies, Damn Lies, And Statistics

SCOTUS Decision Denying Speedy Sentencing Hints
At Expanded Sentence Due Process

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

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

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

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

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

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

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

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

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

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

JUDGE SAYS GOVERNMENT LAWYERS NEED ETHICS LESSONS

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

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

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

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

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

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

CLEMENCY PETITIONS REFERRED TO DOJ NOW TOP 1000

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

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

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

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

THE GOOD WIFE

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

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

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

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

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

LIES, DAMN LIES AND STATISTICS

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

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

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

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

SCOTUS DECISION DENYING SPEEDY SENTENCING HINTS AT EXPANDED SENTENCE DUE PROCESS

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

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

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

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

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

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

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

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

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

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

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

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

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

Legal Information Services Associates provides research and drafting services to lawyers and inmates. With over 20 years experience in post-conviction motions and sentence modification strategy, we provide services on everything from direct appeals to habeas corpus to sentence reduction motions to halfway house and home confinement placement. If we can help you, we’ll tell you that. If what you want to do is futile, we’ll tell you that, too.

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