We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
SCOTUS NARROWS REACH OF IMMIGRATION STATUTE IN ORDER TO SAVE IT
The Supreme Court ruled last Friday in United States v. Hansen that 8 USC 1324(a)(1)(A)(iv) – which prohibits “encourag[ing] or induc[ing]” illegal immigration – “forbids only the intentional solicitation or facilitation of certain unlawful acts.”
The 9th Circuit had held that the statute was an unconstitutional abridgment of the 1st Amendment because it criminalized “immigration advocacy and other protected speech.” Justice Barrett’s 7-2 opinion ruled that “[t]hat was error. Properly interpreted, this provision… does not prohibi[t] a substantial amount of protected speech — let alone enough to justify throwing out the law’s plainly legitimate sweep.”
A “substantial amount” sounds a lot like a new 1st Amendment test.
Justice Jackson, joined by Justice Sotomayor, wrote in a dissent that “the majority departs from ordinary principles of statutory interpretation to reach [its] result. Specifically, it rewrites the provision’s text to include elements that Congress once adopted but later removed as part of its incremental expansion of this particular criminal law over the last century. It is neither our job nor our prerogative to retrofit federal statutes in a manner patently inconsistent with Congress’s choices…”
ACLU lawyers who supported Hansen’s appeal said they welcomed the court’s action narrowing the scope of the statute. “The Supreme Court has drastically limited the encouragement provision to apply only to intentional solicitation or facilitation of immigration law violations,” said Esha Bhandari, deputy director of the ACLU’s Speech, Privacy and Technology Project. “As written by Congress, the law has left people wondering what they can safely say on the subject of immigration. Now we expect the government to respect free speech rights and only enforce the law narrowly going forward.”
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
The response has been fast and furious to the Supreme Court decision in Jones v. Hendrix, which held that federal prisoners may not rely on the saving clause in 28 USC § 2255(e) to avail themselves of a Supreme Court decision that the statute under which they were convicted was wrongly applied by the trial court.
Jones v. Hendrix held that a prisoner who has done 27 years for being a felon in possession of a gun (28 USC § 922(g)(1)) could not bring a habeas corpus action alleging he was innocent of the conviction because the Supreme Court had redefined § 922(g) in the 2019 Rehaif v. United States decision to require that a defendant know that he was prohibited from possessing a gun.
Hendrix held that petitioner Marcus Jones could not file such a petition, leaving him without recourse. In so holding, the decision drives a stake through the heart of 28 USC § 2255(e).
An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.
Before yesterday, most courts accepted that where a change in statutory interpretation made federal prisoners actually innocent of the offense of which they had been convicted, they could resort to the classic habeas corpus petition (28 USC § 2241). That was because unless they were that magic one-year period after conviction during which they could file a 28 USC § 2255 motion, a reinterpretation of a statute – rather than a constitutional holding – did not open up their time period in which to bring a § 2255 motion.
The Supreme Court sanctioned such as procedure in 1998’s Bousley v United States ruling. After the Supreme Court ruled in Bailey v. United States that 18 USC § 924(c) prohibiting the use of a firearm in drug and violent offenses meant more than mere possession of the gun, many people convicted of § 924(c) offenses, perhaps because they had been selling pot at the schoolyard but had a .22 rifle in the closet at home, were suddenly no longer guilty of the crime for which they were doing time. But because Bailey just reinterpreted § 924(c) without finding the prior interpretation unconstitutional, the prisoners were precluded from bringing a 28 USC § 2255 to challenge their convictions.
Most federal appeals courts permitted prisoners convicted under the broader interpretation of § 924(c) to challenge their convictions even if they’d previously filed a § 2255 or were beyond the original deadline. In Bousley, the Supremes sanctioned that approach provided that a change in statutory interpretation since a § 2255 motion was due to be filed made a defendant actually innocent of the offense.
The saving clause procedure permitted by Bousley was so settled that the Solicitor General refused to defend the position that petitioner Marcus Jones was precluded from raising his actual innocence of a gun possession charge under the saving clause. Instead, the Government argued for a slightly stricter showing a defendant would have to make in order to use a § 2241 petition under the saving clause.
The Supreme Court had to appoint a law firm to argue Warden Hendrix’s position. That firm, New York white-shoe firm Sullivan and Cromwell, took a victory lap yesterday, leading Above the Law to observe
It’s a sad day that someone will spend 20+ years in prison for a conviction that never actually existed… I should clarify. This has been a sad day for some. It’s not stopping the attorneys over at Sullivan & Cromwell, the firm appointed by the Court to argue that Jones shouldn’t have a second habeas petition no matter what, from rubbing the victory in everyone’s faces over on Twitter.
To be sure, not everyone was depressed over yesterday’s decision. Crime & Consequences calledJones v. Hendrix a “major victory for finality of judgments,” arguing that in the decision, “[t]he Court rejected an attempt by the petitioner to do ‘an end-run around AEDPA,’ i.e., the limits on collateral review of convictions enacted by Congress in the Antiterrorism and Effective Death Penalty Act of 1996…. Even more important, the Court has finally rejected the notion that the Suspension Clause of the Constitution requires collateral review of final judgments by courts of general jurisdiction. That clause is limited to the scope of habeas corpus understood at the time, which did not include such review. Congress may authorize such review, of course, but it is fully capable of imposing such limits as deems to be good policy.”
Most of the commentary was negative, however. Vox complained
in [Justice] Thomas’s telling, the main purpose of this “inadequate or ineffective” provision is to protect prisoners who are unable to bring a habeas challenge in the court where they were originally convicted — such as if Congress later passed a law eliminating that court. Indeed, in a footnote, Thomas suggests that the “inadequate or ineffective” provision may largely be a relic of an age before the federal interstate highway system was built, when transporting a prisoner to the judicial district where they were convicted “posed difficulties daunting enough to make a § 2255 proceeding practically unavailable.”
Under Jones v. Hendrix, a “prisoner who is actually innocent, imprisoned for conduct that Congress did not criminalize, is forever barred … from raising that claim, merely because he previously sought postconviction relief,” Justices Sotomayor and Kagan wrote in a two-page dissent. “It does not matter that an intervening decision of this Court confirms his innocence. By challenging his conviction once before, he forfeited his freedom.”
The franchise dissent, however, in Jones belonged to Justice Jackson. In addition to what I noted yesterday, she observed that the majority’s approach sanctions dramatically different treatment of prisoners with virtually identical habeas claims:
Consider two individuals who have been convicted of the same federal crime—perhaps two codefendants who were tried and sentenced together. Both complete their direct appeals, but only one files a § 2255 motion within AEDPA’s statute of limitations, while the other one decides not to or misses the deadline. If § 2255(h) bars a successive petition raising a legal innocence claim, then when Rehaif is handed down—altering the elements of the crime of conviction such that both prisoners have a colorable claim of legal innocence—only the one who did not previously file a § 2255 petition can raise this retroactive statutory innocence claim.
Writing in Reason, George Mason University law professor Ilya Somin suggested that the very act of keeping a legally innocent person in prison violates the Due Process Clause of the Fifth Amendment: “The clause bars the government from depriving a person of ‘life, liberty, or property, without due process of law.’ Keeping a man in prison when the activity he was convicted of was not actually illegal seems an obvious deprivation of ‘liberty’ without any basis in ‘law.’ And, because Jones never had a chance to raise the relevant issue, this practice can’t be justified on the basis of efficiency or procedural finality.”
University of Michigan law professor Leah Litman argues in Slate that “as a result of this opinion, people with illegal convictions and sentences—people who are legally innocent—will be stuck in prison for no good reason because the courts screwed up, not because they did. The law certainly did not require this result. And the Jonesdebacle carries a few warnings about the nightmare at One First Street. One is that the Jones majority is part of a larger trend of the Supreme Court believing that the court (and all federal courts) are above reproach and can do no wrong…”
Something that has not been pointed out yet is how Jones v. Hendrix may energize the compassionate release business. The Sentencing Commission has proposed adding USSG 1B1.13(a)(6), which holds that non-retroactive changes in the law may be “considered in determining whether the defendant presents an extraordinary and compelling reason, but only where such change would produce a gross disparity between the sentence being served and the sentence likely to be imposed at the time the motion is filed, and after full consideration of the defendant’s individualized circumstances.”
It would be hard to imagine a disparity grosser than doing time for an offense of which one was innocent.
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
‘SAY IT AIN’T SO!’
The Supreme Court today kicked a leg out from under federal prisoners who have been convicted of an offense based on an interpretation that later is abandoned by the Supreme Court, holding in Jones v. Hendrix that § 2255(e) – the so-called saving clause – does not allow a prisoner asserting an intervening change in interpretation of a criminal statute to circumvent the law’s restrictions on filing a second or successive § 2255 motion by filing a § 2241 habeas petition.
Back in 1998, the Supreme Court seemed to endorse the use of a § 2241 petition where the strict limitations of the new Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) limited second § 2255 motions to cases where a recent Supreme Court constitutional holding or newly-discovered evidence would convince a jury that the petitioner was innocent. The problem was that many landmark criminal decisions by the Supreme Court – such as the holding that a defendant must know that he or she is in a class of people prohibited from possessing a gun (Rehaif v. United States, 2019) – do not resolve constitutional questions at all, but rather just interpret the meaning and scope of criminal statutes.
The 6-3 decision written by Justice Thomas observes that Congress created § 2255 “as a remedial vehicle by which federal prisoners could collaterally attack their sentences by motion in the sentencing court, rather than by a petition for a writ of habeas corpus under § 2241 in the district of confinement. The ‘sole purpose’ of § 2255 was to address the “serious administrative problems” created by district courts collaterally reviewing one another’s proceedings without access to needed evidence and “aggravated” by the concentration of federal prisoners in certain judicial districts that therefore faced “an inordinate number of habeas corpus actions.”
However, § 2255 contained a subsection – § 2255(e) – now known as the saving clause – which many courts (including the Supreme Court) had generally interpreted as letting prisoners file a § 2241 petition in cases where “the remedy by [2255] motion is inadequate or ineffective to test the legality of [a prisoner’s] detention.”
Today, SCOTUS held that just because a change in how a law is interpreted makes someone actually innocent of the offense he or she is doing time for, such a new interpretation does not help a prisoner who has already used up his or her § 2255 motion. The Court said:
Section 2255(e)’s saving clause does not authorize that end-run around AEDPA. The clause preserves recourse to § 2241 in cases where unusual circumstances make it impossible or impracticable to seek relief in the sentencing court, as well as for challenges to detention other than collateral attacks on a sentence. But § 2255(h) specifies the two limited conditions in which federal prisoners may bring second or successive collateral attacks on their sentences. The inability of a prisoner with a statutory claim to satisfy § 2255(h) does not mean that the prisoner may bring the claim in a § 2241 petition.
Justices Sotomayor and Kagan filed a dissenting opinion. In a separate dissenting opinion, Justice Jackson wrote,
I am also deeply troubled by the constitutional implications of the nothing-to-see-here approach that the majority takes with respect to the incarceration of potential legal innocents. Apparently, legally innocent or not, Jones must just carry on in prison regardless, since (as the majority reads § 2255) no path exists for him to ask a federal judge to consider his innocence assertion. But forever slamming the courtroom doors to a possibly innocent person who has never had a meaningful opportunity to get a new and retroactively applicable claim for release reviewed on the merits raises serious constitutional concerns.
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FIRST STEP – THEY WERE FOR IT BEFORE THEY WERE AGAINST IT
Remember the abuse heaped on 2004 Democratic presidential candidate John Kerry – currently Joe Biden’s carbon-spewing climate change czar – when he told a Marshall University crowd back during the ’04 campaign that “I actually did vote for the $87 billion before I voted against it?” It was considered the poster child for political flip-flops.
So far, three Republican candidates for president have nothing of John in denouncing Donald Trump’s signature criminal justice reform bill, 2018’s First Step Act. They were all for it before they were against it.
Florida Gov Ron DeSantis has called it a “jailbreak bill.” Former Vice President Mike Pence said, “We need to take a step back” from it. Former Arkansas Gov Asa Hutchinson proclaimed, “There’s probably some areas there that can be adjusted.”
Even Trump barely talks about First Step while his rivals for the 2024 GOP nomination attack it as a chief contributor to the rise in violent crime. “It has allowed dangerous people who have reoffended and really, really hurt a number of people,” DeSantis said on The Ben Shapiro Show. “So one of the things I want to do when I’m president is go to Congress and seek the repeal of the First Step Act.”
Politico said last weekend that “GOP candidates targeting the criminal justice law is, to a degree, an illustration of how the party views crime as a major election issue and a useful cudgel to bludgeon Trump with.”
DeSantis was a congressman who voted in favor of the House version of First Step, which was a dream come true for federal prisoners compared to the final product. Pence, meanwhile, worked alongside Trump’s son-in-law and advisor Jared Kushner to help push First Stepwith skeptical Republican lawmakers on the Hill. Asa Hutchinson, a former DEA chief who has praised the First Step Act’s reduction in federal sentencing disparities between crack and powder cocaine, says that president, he would be open to making changes.
Trump campaign spokesman Steven Cheung tweeted last month, “Lyin’ Ron. He voted for the First Step Act. Would be a shame if there was video of him praising it in an interview with a local FL television station.”
Overturning the First Step Act is easier said than done. Republican pollster Adam Geller says he understands why DeSantis and others are arguing against First Step in order to separate themselves from Trump without offending his base. But Geller said he doesn’t see it as an effective message to win over voters or members of Congress, both groups who any future president would have to work with. “On the assumption that you become president, who exactly you’re going to solicit to overturn this legislation? Republicans voted for it. So did Democrats,” Gellar told Politico. “When you say you’re going to overturn that, with who[m]?
While First Step may not face serious trouble, the rising anti-crime mood suggests that the window has slammed shut on hopes for crack-powder disparity, retroactivity for some First Step changes, and maybe even marijuana reform until after the presidential election, now 17 months away.
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CONGRESS MAKES NO SENSE, BUT WE’LL FOLLOW THE STATUTE ANYWAY
Anyone who believes that Congress crafts the laws it passes with wisdom and expertise needs look no further than 18 USC § 924, which sets out penalties for gun offenses.
The penalties in 18 USC § 924(c) for using or carrying a gun during a drug or violent crime must be consecutive to any other sentence.But if the defendant uses the gun to murder someone during the § 924(c) offense, he or she is punished under 18 USC § 924(j). While § 924(j)’s maximum penalty – death – is more severe than § 924(c)’s maximum of life without parole, § 924(j) has no mandatory minimum and does not require that the sentence be consecutive to any other sentence.
In other words, it seems from a straight reading of the statute that a defendant is better killing some with his gun during a Hobbs Actrobbery than he is just keeping the gun in his, which punishes a § 924(c) violation “where death results,” do not.
Last Friday, the Supreme Court shrugged and said it doesn’t matter whether it makes sense or not. Section 924(j) means what it says, or more accurately, means what it doesn’t say.
In Lora v. United States, the high court held that the sentence imposed by § 924(j) may be either consecutive or concurrent (like the sentence for almost all other criminal offenses, as permitted by 18 USC § 3584(a)).
Efraim Lora was convicted of a violation of § 924(j)(1), which penalizes using a gun during a drug or violent crime to “cause the death of a person” where “the killing is a murder.” Efraim’s underlying offense was drug trafficking. At sentencing, the District Court concluded that it lacked discretion to run Efraim’s drug and §924(j) sentences concurrently because § 924(c)’s requirement for consecutive sentences obviously governs § 924(j) sentences, too.
The District Court’s conclusion represented an attempt to make subsection (c) and subsection (j) make sense together. Five circuit courts of appeal have held the same, which only two – the 10th and 11th – had held otherwise.
Last Friday’s Supreme Court opinion changes all of that. Justice Alito, writing for a unanimous court, noted the Government’s complaint that it is “implausible” that “Congress imposed the harsh consecutive-sentence mandate under subsection (c) but not subsection (j), which covers more serious offense conduct.” Yet, his opinion says, “that result is consistent with other design features of the statute.”
The Supremes observed that “Congress plainly chose a different approach to punishment in subsection (j) than in subsection (c). Subsection (c), first enacted in 1968, is full of mandatory penalties… Subsection (j), by contrast, generally eschews mandatory penalties in favor of sentencing flexibility… Even for murder, subsection (j) expressly permits a sentence of ‘any term of years.’ This follows the same pattern as several other provisions enacted alongside subsection (j) in the Federal Death Penalty Act of 1994.”
Justice Alito’s opinion admitted that “Congress could certainly have designed the penalty scheme at issue here differently. It could have mandated harsher punishment under subsection (j) than under subsection (c). It could have added a consecutive-sentence mandate to subsection (j). It could have written subsection (c)’s consecutive-sentence mandate more broadly. It could have placed subsection (j) within subsection (c). But Congress did not do any of these things. And we must implement the design Congress chose.”
So what does this mean for people serving consecutive sentences for § 924(j)? Unless you’re still within a year of conviction – so you can use your § 2255 petition to raise the issue – you probably would have to proceed on a 28 USC § 2241 petition for habeas corpus. The limits of what you can do in a § 2241 petition may be decided in the next two weeks when the Supreme Court decides Jones v. Hendrix. But many courts have held that a § 2241 petition cannot be used like this unless the statutory interpretation means you’re innocent of the offense, not just of the sentence. No doubt, there is plenty of litigation to come on this.
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Blending his computer savvy with his angler hobby, Tim was able to hack the geographic coordinates of artificial reefs in the Gulf of Mexico from StrikeLines, an Orlando, Florida, company that sold the data to people looking for the best places to fish. Tim – who thought that StrikeLines was morally wrong to capitalize on the work of the people who built the reefs by selling their locations – made the stolen data freely available on the Internet and offered to help StrikeLines patch its website vulnerability in exchange for some data he had been unable to extract from the site about a few great deep locations for catching grouper.
Or so the Northern District of Florida jury found, holding that Tim was guilty of violating the Computer Fraud and Abuse Act, 18 USC § 1030(a)(2)(C) and (c)(2)(B)(iii), for intentionally accessing a computer without authorization; for theft of trade secrets in violation of 18 USC § 1832(a)(1), and for transmitting a threat through interstate commerce with intent to extort a thing of value in violation of 18 USC § 875(d). The judge gave him 18 months.
But Tim fought back. Before trial, he argued the indictment had to be dismissed for lack of venue, citing the Constitution’s Venue Clause (Article III, § 2, clause 3), and the 6th Amendment’s Vicinage Clause. He argued that his trial in the Northern District of Florida was improper because he had accessed StrikeLines’ website from his home in the Southern District of Alabama and the servers storing StrikeLines’ data were located in the Middle District of Florida.
The judge kicked the venue question to the jury, which found that because the effects of Tim’s crime were felt at StrikeLines’ headquarters in the Northern District of Florida, venue was proper. On appeal, the 11th Circuit disagreed, holding that venue in the Northern District of Florida was improper.
But Tim’s victory was short-lived because the Circuit said Tim could be re-prosecuted in the right venue.
Tim took that issue to the Supreme Court, which yesterday agreed in a unanimous opinion that even when a venue issue is decided incorrectly by the jury, that fact does not implicate double jeopardy. Justice Samuel Alito’s opinion observed that the usual remedy for error was a new trial rather than complete dismissal of the case. The only exception the court had recognized to that rule, Alito noted, was the violation of the right to a speedy trial, which SCOTUSBlog said the court previously has categorized as “‘generically different,’ presumably because a delayed trial is hardly remedied by one still further delayed.”
Venue in a criminal trial is a procedural issue with a constitutional dimension. The Venue Clause is keyed to the location of the alleged crime, not the district where the accused resides or even the district in which he or she is located at the time of committing the crime. Thus, as the Supreme Court puts it, “the Clause does not allow variation for convenience of the accused.”
The Vicinage Clause guarantees the right to an impartial jury made up of people from the state and district “wherein the crime shall have been committed.” The Vicinage Clause “reinforces” the coverage of the Venue Clause because, in protecting the right to a jury drawn from the place where a crime occurred, it essentially mandates where a trial must be held.
The Supreme Court said a judicial decision on venue is “fundamentally different” from a jury’s general verdict of acquittal. When a jury returns a general verdict of not guilty, its decision cannot be upset by judicial speculation or inquiry into why the jury did what it did. “To conclude otherwise,” the Court said, “would impermissibly authorize judges to usurp the jury right.” Because a trial court cannot be certain about a jury’s basis for a ‘not guilty’ verdict without improperly delving into the jurors’ deliberations, “the jury holds an unreviewable power to return a verdict of not guilty even for impermissible reasons.”
A defendant’s culpability is the touchstone for determining whether retrial is permitted under the 5th Amendment’s Double Jeopardy Clause. When a trial ends with a finding that the defendant’s criminal culpability had not been established, retrial is prohibited. Conversely, “retrial is permissible when a trial terminates on a basis unrelated to factual guilt or innocence of the offense of which the defendant is accused.” For example, the Double Jeopardy Clause is not triggered when a trial ends in juror deadlock, or with a judgment dismissing charges because of a procedural issue like preindictment delay. “In these circumstances,” the Court held, “the termination of proceedings is perfectly consistent with the possibility that the defendant is guilty of the charged offense.
The vicinage right is only one aspect of the jury-trial rights protected by the 6th Amendment, the Court said. Retrials are the appropriate remedy for violations of other jury-trial rights. “The reversal of a conviction based on a violation of the Venue or Vicinage Clauses, even when styled as a ‘judgment of acquittal’ under Rule 29, plainly does not resolve ‘the bottom-line question of ‘criminal culpability’,” the Court said. “In this case, then, the 11th Circuit’s decision that venue in the Northern District of Florida was improper did not adjudicate Smith’s culpability… [and] thus does not trigger the Double Jeopardy Clause.”
Smith v. United States, Case No. 21-1576, 2023 U.S. LEXIS 2546, at *24-25 (June 15, 2023)
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3582 ≠ 2255, 6TH CIRCUIT SAYS
Most of the time, unsavory houseguests nick a towel from the bathroom or a spoon from the silver. Not Lennie Day. While staying at Roy West’s Akron, Ohio, house (the decision says he was “hiding out”), Lennie stole $300,000 in cash and jewelry, a .40-caliber gun, and car keys.
If this had been an Airbnb rental, Lennie would have gotten a flaming’ bad review.
Roy, appalled at Lennie’s poor manners, felt that he should confront his erstwhile guest and upbraid him for his rudeness. So Roy organized a posse of friends, led them to Detroit, and asked them to locate Lennie
so that he could express his unhappiness directly to Lennie. He didn’t find him, but later, Lennie passed away after being perforated by several bullets. Sadly, Roy never got to tell Lennie what a faux pas his guest had committed…
In 2014, Roy was convicted for his participation in what the government labeled a murder-for-hire conspiracy targeting Lennie. He was sentenced to life in prison. His direct appeal and a post-conviction motion under 28 USC § 2255 failed.
Eight years later, Roy sought compassionate release under 18 USC § 3582(c)(1)(A). He argued that extraordinary and compelling reasons for the reduction included his risk of catching COVID, his rehabilitation, and – raising it for the first time – that his sentence violated Apprendi v New Jersey, a 2000 Supreme Court decision holding that any statutory sentencing enhancement had to be supported by a jury finding the facts supporting the enhancement beyond a reasonable doubt.
Roy claimed that the jury instructions given at his trial did not require the jury to find that death resulted from the conspiracy – a necessary finding for the court to impose a life sentence for the crime.
The district court didn’t bite on the medical risk for COVID, but it did find that the Apprendi error and Roy’s rehabilitation constituted “extraordinary and compelling reasons” to reduce his sentence. It reduced Roy’s sentence to 17 years and cut him loose.
Last week, the 6th Circuit reversed, agreeing with the government that Roy’s § 3582 motion was really a second or successive § 2255 motion in mufti.
The Circuit assumed the district court was right that “a harmful Apprendi violation occurred.” That doesn’t matter, the Circuit said, because “compassionate release cannot ‘provide an end run around habeas.’ The § 2255 procedure “provides a specific, comprehensive statutory scheme for post-conviction relief” and therefore, the 6th ruled, “any attempt to attack a prisoner’s sentence or conviction must abide by its procedural strictures.”
Once a prisoner has already filed and appealed the denial of a § 2255 motion (as Roy had already done), “relief cannot be obtained in a successive § 2255 motion unless new evidence or a new rule of constitutional law is announced,” the Circuit held. Roy “cannot avoid these restrictions on post-conviction relief by resorting to a request for compassionate release instead.”
Of course, because Apprendi predated Roy’s conviction and – for whatever reason – the error was not raised in his self-written § 2255, there is no way he will be allowed a second § 2255. Roy will just have to do his sentence. For the rest of his natural life.
United States v. West, Case No. 22-2037, 2023 U.S. App. LEXIS 14424 (6th Cir. June 9, 2023)
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Today, a “short rocket” of odds and ends collected over the last week or so…
The Federal Bureau of Prisons generally labors in obscurity, except when a high-profile inmate arrives, as Theranos founder Elizabeth Holmes did the other day, or when a notorious one passes away, most recently FBI-agent-turned-Russian-spy Robert Hanssen. And yet its mission — housing roughly 159,000 people convicted of federal crimes humanely and securely, and then fostering their reentry to society — is crucial to the rule of law. The BOP operates 122 facilities at a cost of about $8.4 billion in fiscal 2023, the second-biggest budget item, after the Federal Bureau of Investigation, in the Justice Department. With more than 34,000 personnel, the BOP is the department’s largest employer.
The editorial concluded that “[i]t’s time for more attention to be paid to the BOP. A steady flow of reports has documented an agency beset by chronic problems — unsanitary kitchens, sexual assaults, an astonishing recidivism rate of around 43 percent — in urgent need of reform.” Plugging the FPOA, the Post argued, “The BOP needs stable leadership, without which consistent policy cannot be sustained, let alone reformed. Its director should be nominated by the president for a single 10-year term, subject to Senate confirmation, like the director of the FBI. A measure proposed in both houses last year would make this change, yet it languishes… The need for structural change at the BOP is clear. So are the costs of inaction.”
Another Presidential Hopeful Slams First Step Act: Mike Pence – who announced his candidacy for the Republican presidential nomination last Wednesday – told an Iowa town hall event that there’s a need to “rethink” First Step, signed by then-President Trump while Pence was serving as vice president.
“I think we need to take a step back and rethink the First Step Act,” Pence said at an Iowa town hall event. “I mean we’ve got a crime wave in our major cities, and I think now more than ever we ought to be thinking about how we make penalties tougher on people who are victimizing families in this country.”
Pence’s comments reflect how sharply the Republican position on crime and criminal justice reform has shifted in the roughly four years since Trump signed First Step into law.
The Spectatornoted the recent Republican phenomenon, which began with Ron DeSantis – who himself voted for a House version of First Step back in spring 2018 –going after Donald Trumpfor signing the bill:
The GOP’s abandonment of criminal justice reform is likely a welcome change for tough-on-crime mainstays like Senators Tom Cotton and John Kennedy, who voted against the First Step Act, while the libertarian wing of the party will be vexed. The real story will be in how these internal fights are received by primary voters, as80 percent of Republicanssaid crime is a real threat in communities in a March NPR poll. Which primary candidates can run the fastest from the perception that they might be gracious to criminals?
BOP Employees Charged With Lying About Dying Inmate: A BOP correctional lieutenant and a nurse are accused of ignoring the serious medical needs of a man who died under their supervision at FCI Petersburg, federal prosecutors said.
BOP Lt. Shronda Covington was told the 47-year-old inmate, identified in the indictment as W.W., was eating out of a trash can, urinating on himself and falling down the day before his death in January 2021 at FCI Petersburg in Hopewell, according to court documents. However, she told federal investigators that W.W. was walking around his cell, doing pushups and listening to music on January 9, 2021, the indictment alleges.
Tonya Farley, a BOP RN, has been charged with filing a false report.
The employees were charged on June 6 with violating the man’s civil rights “by showing deliberate indifference to his serious medical needs, resulting in his death,” the United States Attorney’s Office for the Eastern District of Virginia said in a news release. The man died due to heart issues on Jan. 10, 2021, according to records obtained by The Associated Press.
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This was followed by the predictable questions from prisoners: “When can I use the Range decision to get my § 922(g) conviction vacated? And how about getting rid of my aggravated identity theft conviction under § 1028A?”
Very good questions, and inquiries for which the hopemongers who will write any motion for a federal prisoner in exchange for a modest fee – let’s call them what they are, hopemongers – have a ready answer. That answer usually starts with, “Pay me…”
Now let’s ask the professor. Or, because he’s nowhere around, ask me…
To be sure, a lot of people could be affected by the decisions, provided there’s a procedural route to raise them. About 21% of federal prisoners have a § 922(g) conviction, while about 2% are doing time for aggravated ID theft. That’s a potential of about 35,000 felon-in-possession and 3,500 § 1028A defendants.
Range: Remember first that the Range decision is only binding in the 3rd Circuit. If your case isn’t from there, Range doesn’t help you. In fact, as I reported a week ago, the 8th Circuit just went the other way in its United States v. Jackson decision.
However, if your 1-year deadline for filing a § 2255 motion hasn’t expired, by all means challenge § 922(g) constitutionality in your motion. But if your time has expired, your options are limited. Under 28 USC § 2255(f)(3), you can file within a year of a new SCOTUS ruling on the constitutionality of a statute, but Range is not a Supreme Court case. If you have already lost your § 2255 motion, you have to get Court of Appeals permission to file another § 2255 and that standard likewise requires that the motivating decision be from the Supreme Court.
So how about a 28 USC § 2241 petition? We’ll know a lot more about § 2241s in a few weeks when SCOTUS decides Jones v Hendrix. For now, fitting a Range-type claim into the standards for bringing a § 2241 (under the § 2255(e) saving clause) will be tough.
For § 922(g) defendants, it may be worth a shot if your conviction came from a 3rd Circuit district court. For everyone else, it’s a waiting game…
ID Theft: For those beyond the § 2255 filing deadline, the traditional 28 USC § 2241 petition for habeas corpus will likely be available under the saving clause.
Because Dubin is a statutory interpretation and not a constitutional holding (despite Justice Gorsuch’s argument that it could easily have been), the route of filing a second or successive § 2255 (under the rules set up by § 2255(h)) is probably unavailable.
General Pro Tip: If you’re proceeding on § 2255 or § 2241, find competent help. Procedural questions are boring but vitally important to winning.
Ohio State University law prof Doug Berman observed last week that “offenders now looking to pursue what might be called “Dubin claims” could, of course, face procedural barriers of all sorts. But the still-open-ended sentence reduction authority of 3582 might be one ready means for at least some (over-sentenced) prisoners to secure relief…”
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
IDENTITY THEFT TAKES A ‘ROAD TRIP’
The Supreme Court yesterday unanimously but unclearly narrowed the circumstances when aggravated identity theft under 18 USC § 1028A can be included as part of federal criminal charges, with Justice Gorsuch grousing in a concurrence that “criminal statutes are not games to be played in the car on a cross-country road trip. To satisfy the constitutional minimum of due process, they must at least provide ordinary people with fair notice of the conduct they punish…”
Dr. David Dubin was convicted of healthcare fraud under 18 USC § 1347 after he overbilled Medicaid for psychological testing performed by the company he managed. The Doc would overstate the qualifications of the employee who actually performed the testing, sort of like having a patient get a shot from a nurse and then claiming a doctor performed the jab. Dave’s falsehood inflated the amount of reimbursement by a princely $338.00.
Dave was also convicted of aggravated identity theft under § 1028A(a)(1), because when he submitted the false claim to Medicaid, the claim included the name and numeric identifier of the patient. Section 1028A(a)(1) applies when “during and in relation to” certain offenses – including healthcare fraud – a defendant “knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person.”
The Government told SCOTUS that § 1028A(a)(1) was automatically satisfied because Dave’s fraudulent Medicaid billing included the patient’s Medicaid reimbursement number — a “means of identification.”
Writing for the 9-0 Court, Justice Sotomayor rejected the government’s “sweeping reading, as long as a billing or payment method employs another person’s name or other identifying information, that is enough.” She observed that by that metric, “a lawyer who rounds up her hours from 2.9 to 3 and bills her client electronically has committed aggravated identity theft. The same is true of a waiter who serves flank steak but charges for filet mignon using an electronic payment method.”
The “staggering breadth” of the Government’s reading – under which everyday overbilling cases would account for the majority of violations – “underscores the implausibility of the Government’s interpretation,” the Court ruled. “While the Government represents that prosecutors will act responsibly in charging defendants under its sweeping reading, this Court cannot construe a criminal statute on the assumption that the Government will use it responsibly.”
The Court held instead that under § 1028A(a)(1), a defendant “uses” another person’s means of identification “in relation to” a predicate offense only when the use is “at the crux of what makes the conduct criminal… A far more sensible conclusion from the statutory structure is that § 1028A(a)(1)’s enhancement targets situations where the means of identification itself is at the crux of the underlying criminality, not just an ancillary billing feature.”
The decision did not go far enough to satisfy Justice Gorsuch, who argued in a concurrence that § 1028A was unconstitutional,
not much better than a Rorschach test. Depending on how you squint your eyes, you can stretch (or shrink) its meaning to convict (or exonerate) just about anyone… We have a term for laws like that. We call them vague. And in our constitutional order, a vague law is no law at all.
The Dubin ruling is important because the ID theft law adds a two-year mandatory prison sentence onto underlying offenses that do not impose a mandatory prison sentence of any kind. Sentencing judges may not consider the severity of the offense, even if the amount of money involved is quite small or there are other mitigating factors.
The impact on people currently serving time for violations of 18 USC § 1028A is unclear but likely to be positive. For those beyond the deadline to file post-conviction motions under 28 USC § 2255, the traditional 28 USC § 2241 petition for habeas corpus will likely be available under the § 2255(e) saving clause. The extent of that remedy will be further defined in Jones v. Hendrix, Case No. 21-857, due to be decided by the Supreme Court in the next three weeks.
Because the Dubin decision is a statutory interpretation and not a constitutional holding (despite Justice Gorsuch’s persuasive argument that it could easily have been), the route of filing a second or successive § 2255 motion (under the rules set up by § 2255(h)) is probably unavailable.
Dubin v. United States, Case No. 22-10, 599 U.S. —, — S.Ct. —, — L.Ed.2d —, 2023 U.S. LEXIS 2420 (June 8, 2023)
The 9th Circuit had held that the statute was an unconstitutional abridgment of the 1st Amendment because it criminalized “immigration advocacy and other protected speech.” Justice Barrett’s 7-2 opinion ruled that “[t]hat was error. Properly interpreted, this provision… does not prohibi[t] a substantial amount of protected speech — let alone enough to justify throwing out the law’s plainly legitimate sweep.”
