Another Circuit Rules Against Sentencing Commission – Update for March 17, 2025

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

THINGS WE DIDN’T SEE COMING JUST GOT WORSE

After the First Step Act passed and prisoners could file their own 18 USC § 3582(c)(1)(A) compassionate release motions, the 2nd and 4th Circuits led the nation in agreeing that people with overly long sentences due to stacked § 924(c) convictions (for using or carrying a gun during a drug or violent crime) could get relief.

guns200304Before First Step, someone with three § 924(c) counts would get a minimum of five years added on for the first count and stacked 25-year sentences added for each of the next two counts. If Danny Doper carried a gun while selling meth three times over a three-day period, the law required that he get a mandatory 55 years added on to whatever his drug sentence might be.

First Step corrected § 924(c) to make clear that for a second § 924(c) count to carry 25 years minimum time, the second gun offense had to be committed after a conviction on the first gun offense. If convicted after the Act’s passage, Danny would still face three § 924(c) sentences of 5 years each, but 15 years was still way less than the 55 years he faced before.

Three circuits disagreed that courts could on their own find First Step’s change in § 924(c) – which Congress did not make retroactive – as an extraordinary and compelling reason for a compassionate release. But when the Sentencing Commission amended its compassionate release policy statement to add Guideline § 1B1.13(b)(6) – in November 2023, we thought it had solved the debate by specifically providing that a non-retroactive change in the law – along with some other factors (like having served 10 years and having a grossly disparate sentence) – could be a basis for a compassionate release.

We didn’t see the government’s onslaught coming. The Dept of Justice immediately argued that the new Guideline policy statement exceeded the USSC’s authority. Only the 3rd Circuit had agreed with this position until last week, when in a 2-1 opinion, the 7th held that USSG § 1B1.13(b)(6) exceeded USSC authority by effectively making First Step’s nonretroactive change in § 924(c) retroactive.

interpretation210729“When Congress explicitly delegates to an agency the authority to interpret a statute, the agency’s interpretation supersedes the court’s unless the agency’s interpretation exceeds the scope of authority that Congress explicitly delegated,” the Circuit said. “Here, Congress explicitly delegated to the Commission authority to interpret extraordinary and compelling under § 3582(c)(1)(A)… But because the Commission exceeded the scope of its authority, we do not defer to its policy statement and instead follow our own interpretation.”

The margin of the Commission’s defeat was razor-thin. One of the three judges dissented, and another only reluctantly became part of the 2-1 majority, saying that “the doctrines of stare decisis and precedent require that I concur in the judgment and opinion of the court.”

The 7th Circuit admitted that courts of appeal were divided on the issue, saying that “[p]erhaps the Supreme Court will eventually resolve the split, but for now we will follow our precedent and join the only other court of appeals [the 3d Circuit] to so far resolve the battle of competing interpretations.”

You can bet on it.

United States v. Black, Case No. 24-1191, 2025 U.S.App. LEXIS 5634 (7th Cir. March 11, 2025)

– Thomas L. Root

Judge Dredd’s An OK Guy, Mr. Defendant – Update for March 14, 2025

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‘THE JUDGE’S BIAS DIDN’T HURT YOU’, 7TH CIRCUIT TELLS PETITIONER

You may recall U.S. District Judge Colin S. Bruce of the Central District of Illinois, who was caught by a local newspaper seven years ago holding “extensive” ex parte communications with the US Attorney’s Office about criminal cases over which he was presiding. Ol’ Colin – I don’t call him “Your Honor” for reasons that should be clear – was a former Assistant United States Attorney who couldn’t leave his old pals behind. Ultimately, he was caught talking out of school to prosecutors about cases currently before him, complaining about defense attorneys and blasting assistant U.S. attorneys when he thought they were letting defendants wriggle out their misdeeds and escape the harsh justice they deserved..

colinbruce200221When the story broke, the Chief District Judge removed Bruce from federal criminal cases for a time and the 7th Circuit Judicial Council “found no evidence that Judge Bruce’s improper communications actually affected his decision in any case but admonished Judge Bruce that his actions had breached the Code of Conduct for United States Judges.”

Forty lashes with a wet noodle for a man who should have had the decency to resign. Is this a great country or what?

Kevin Pettis, who had been sentenced in 2018 by Bruce, filed a 28 USC § 2255 motion claiming the right to be resentenced. He argued that Bruce was biased, and “even if there was no showing of actual bias, Judge Bruce had a statutory obligation to recuse under 28 USC § 455(a) because of the appearance of bias.”

Another judge besides Bruce was appointed to hear the motion but found that Kevin failed to present any evidence of actual bias or a risk of bias so high that it rose to the level of a 14th Amendment due process violation.

wetnoodle240215Last week, the 7th Circuit affirmed the denial, reminding everyone how hard it is to get a judge removed for bias. The Circuit ruled that Kevin could “only offer[] as evidence of bias Judge Bruce’s publicly disclosed ex parte communications and his preexisting relationship with members of the U.S. Attorney’s Office. Neither the communications nor Judge Bruce’s preexisting relationship with the U.S. Attorney’s Office rises to the level of a due process violation.”

Pettis v. United States, Case No 23-1889, 2025 U.S. App. LEXIS 4841 (7th Cir., March 3, 2025)

– Thomas L. Root

‘What’s the Occasion?’ Is Not an Idle Question – Update for March 13, 2025

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6TH CIRCUIT HOLDS ERLINGER ERROR IS NOT HARMLESS

errorA160425Kevin Cogdill was found guilty of an 18 USC § 922(g)(1) violation for possessing a gun after three prior drug felony offenses. The district court, over Kevin’s objection, determined that he committed his three prior drug offenses “on occasions different from one another,” subjecting him to an enhanced sentence of at least 15 years under the Armed Career Criminal Act.

Kevin appealed on the grounds that an 18 USC § 924(e) conviction – the ACCA statute – requires that a jury had to find that his priors had occurred on “occasions different from one another.” After the Supreme Court held in United States v. Erlinger that the “occasions different” standard in the statute was a jury question, Kevin’s case was remanded to the 6th Circuit.

Last week, the 6th agreed that the error was not harmless and remanded Kevin for resentencing.

The Circuit reviewed the record, finding that two of the priors related to selling — or possessing with intent to sell — methamphetamine. No one arrested Kevin between the June offense and the September offense, and he ultimately was convicted of both offenses on the same date. For all the record shows, “it is certainly possible…” that the drugs for these two offenses came from the same source. Kevin might have obtained a large quantity of methamphetamine, sold some of that stash in June, and then “was busted” for possessing with intent to sell the rest in September. Without any other information about how these crimes took place, it is reasonable to think that these crimes may have been ‘similar or intertwined’ and ‘share[d] a common scheme or purpose.’”

occasion250313The decision is noteworthy because of the expansive view of “occasions different” the court suggests. There was a time when occasions were thought to be different whenever a defendant had an opportunity to reflect on his conduct before the next drug sale or burglary. Back then, one night’s indiscretion was enough to make one an armed career criminal if caught with a gun 20 years later.

The appellate court’s holding suggests that the ACCA may become what it was intended to be, a means of immobilizing the worst of the worst rather than a bludgeon to be used on small-time dopers and footpads.

United States v. Cogdill, Case No. 22-5603, 2025 U.S.App. LEXIS 4902 (6th Cir. March 3, 2025)

– Thomas L. Root

Pardon Attorney Becomes Gun Victim – Update for March 11, 2025

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GOODBYE, LIZ… WE HARDLY KNEW YE

oyer250311Notoriously apolitical and dedicated Dept of Justice Pardon Attorney Elizabeth G. Oyer was abruptly fired and frog-marched out of the DOJ building by security last Friday morning. Her crime?  According to this morning’s New York Times, Oyer refused to recommend restoration of gun rights to actor Mel Gibson, who is disqualified from possessing a lethal weapon due to a 2011 misdemeanor conviction for battering his girlfriend.

Under 18 USC § 922(g)(8), a conviction for a misdemeanor crime of domestic violence disqualifies a person from possessing a firearm or ammunition that has traveled in interstate commerce. While it is possible for a person disqualified under § 922(g) – which lists multiple categories of people not allowed to have guns – to possess a firearm that was manufactured in the same state in which the person lives, the courts have long held that no commercial ammunition is made entirely of components produced in a single state.

In 2011, Gibson pleaded no contest in Los Angeles Superior Court to a charge of misdemeanor battery stemming from a January 2010 fight he had with Oksana Grigorieva, his ex-girlfriend and the mother of his then 1-year-old daughter. Gibson was sentenced to 36 months of informal probation, community service, a year of domestic violence counseling, and $570 in fines. In an incident which must have had a fascinating backstory, prosecutors also agreed not to charge Grigorieva with extortion, citing insufficient evidence. Gibson had alleged that she tried to extort money from by leaking multiple recordings of him purportedly yelling at her.

Oyer said through a spokesperson yesterday that about two weeks ago, she was assigned to a working group to restore gun rights to people convicted of crimes. The group was headed by Paul Perkins of the deputy attorney general’s office and James McHenry, the acting attorney general, two sources familiar with the effort told NBC.

As The New York Times described it, “It was an unusual assignment for the office of the pardon attorney, which typically handles requests for clemency and tries to focus on people who cannot hire well-connected lawyers to plead their cases to the White House, where the president has vast power to grant pardons in federal cases. Mr. Trump has a history of making pardon decisions without substantial input from the pardon attorney, but in this case Justice Department leaders planned to make the decision about gun rights on their own.”

gibsongun250311NBC News reported today that the working group was “instructed to find a way to restore gun rights to entire classes of previously convicted people. Because ATF is technically prohibited from processing such requests, the plan was to give the authority to the pardon attorney and for there to be a semi-automated process. That was in stark contrast to how the pardon office normally works, which is by evaluating each application case by case and making recommendations.”

A list of about 95 people made the initial list, but that was cut to about nine. Oyer prepared a draft memorandum for the group, but after she submitted the draft, she was asked to add Gibson’s name to the list and was given a letter that Gibson’s attorney had sent asking DOJ to restore his gun rights.

She refused to do so, explaining that she lacked enough information about the 2011 conviction to make a recommendation. However, she soon got a phone call from the deputy attorney general’s office asking whether her position on Gibson was flexible. When she said it was not, NBC said, Oyer was told that “Mel Gibson is a friend of the president and that should be justification enough.”

On Friday morning, NBC said, Oyer submitted a second draft memo that summarized the information she had available on Gibson – including not just the 2011 conviction but also reports of Gibson’s 2006 drunken anti-semitic tirade to LA cops – and made no any recommendation to the attorney general

Shortly after that, she was handed her termination notice and marched out.

Oyerfiring250311“This is dangerous. This isn’t political — this is a safety issue,” Oyer told The New York Times. In a statement to NBC, Oyer described a climate of fear within the DOJ. “Unfortunately, experienced professionals throughout the Department are afraid to voice their opinions because dissent is being punished,” she was quoted as saying. “Decisions are being made based on relationships and loyalty, not based on facts or expertise or sound analysis, which is very alarming given that what is at stake is our public safety.”

The Times said that Oyer’s account of the gun debate over Gibson and others was confirmed by two other people familiar with the events, who spoke on the condition of anonymity because they feared retaliation.

A Justice Department official familiar with the matter told NBC News and The Times that Oyer’s firing was not related to the Gibson case. “The Mel Gibson decision did not play a role in termination decision,” said the official, who spoke on the condition of anonymity. “The paperwork was done before the Mel Gibson email went out.”

However, NBC reported that a second senior Justice Department official, who was not authorized to speak publicly, said Oyer’s ouster “is part of a very concerning set of personnel moves across the federal government and at DOJ” in which officials who might act as checks on abuses of power were being fired.

“I don’t know how much of what happened to Liz was a failure to toe the line about a specific thing,” the DOJ official is quoted as saying. “But, systematically, the political leadership of this administration is doing their best to take away the institutional guardrails.”

Oyer was appointed by President Joe Biden. She was a breath of fresh air in the Pardon Office backwater, spearheading sessions at federal prisons where she spoke to inmates about the pardon process and dismissing a stack of very old and stale clemency petitions to try to reset the process. All too often, both Biden and (in the last six weeks) Trump appeared on more than one occasion to ignore her role in the pardon process when it suited them.

As for the gun rights restoration push, NBC reported that while a system has not yet been set up to review gun rights restoration applications, “there have been talks to have the attorney general immediately begin restoring rights to a pre-set list of people in the meantime, two law enforcement officials familiar with the matter said.”

New York Times, Justice Dept. Official Says She Was Fired After Opposing Restoring Mel Gibson’s Gun Rights (March 11, 2025)

NBC News, DOJ official says she was fired after opposing the restoration of Mel Gibson’s gun rights (March 11, 2025)

– Thomas L. Root

The BOP – Fearlessly Meeting the Demands of This Moment – Update for March 10, 2025

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LOOK AT ME, I’M WONDERFUL

I reported last Friday on a federal court approval of a settlement between the Federal Bureau of Prisons and about 500 female prisoners formerly housed at the now-closed FCI Dublin.

I note that one curious requirement of the decree is that the BOP to “issue a formal, public acknowledgement to victims of staff sexual abuse at FCI Dublin.”

wonderful250310I mentioned that the “acknowledgement” came on February 26 in a post by William Lothrop, who will be one of the shortest-tenured acting BOP directors in history( he retires in three weeks). Bill, like me, is apparently a late 60s  fan of the Bonzo Dog  Band, which gave us some timely classics as “I’m the Urban Spaceman.” This much is suggested by his channeling the band’s sleeper from its Keysham album entitled “Look at Me, I’m Wonderful.“

If you didn’t know the history, you’d think Lothrop was taking the agency on a victory lap. He emoted on his own 33 years having “worked tirelessly with our correctional professionals to rehabilitate and prepare all inmates for successful reentry into our communities.”  Hard to tell that he was supposed to be apologizing to all of those women who were sexually assaulted by BOP employees while other BOP employees hid their heads in the sand.

After Lothrop “acknowledge[d] those women who were verified victims of sexual abuse while they were designated at FCI Dublin,” he proudly strutted that “there is absolutely no place for sexual abuse in this agency, and therefore, our agency maintains and reaffirms its zero-tolerance policy for employee sexual misconduct and retaliation. I have full faith that the FBOP and our team of dedicated correctional professionals will continue to meet the demands of this moment.”

The non-apology would be ennui-inducing enough if the BOP had stamped out sexual abuse as a result of the Dublin debacle. However, last week, we were reminded that the BOP is doing anything but meeting the demands of this moment or any other.

femalesexprisoner241219A former BOP corrections officer assigned to a female unit at FDC Chicago was charged in federal court with sexually assaulting four female inmates in late 2023. The same week, out at USP Thomson, a CO was indicted for allegedly having sex with two inmates between December 2023 and March 2024.

What did these people not get? Their fellow BOP officers and managers in Dublin were getting perp-walked on Bay Area television for sexually abusing inmates. You’d think that would suggest that sex with inmates was a bad idea.

And while it’s not sex, down in Florida, a former FCC Coleman has been indicted in MD Florida federal court for smuggling contraband tobacco into the prison last June in exchange for payment.

On a related note, at the end of January, the Dept of Justice shut down its National Law Enforcement Accountability Database (NLEAD), a national directory former President Biden created in 2022 to track police misconduct. Last week, The Appeal reported that over half of the 5,200 lost database entries, more than 2,600, related to complaints against BOP officers. Customs and Border Patrol was in second place with 1,169 records, or about 22% of the database.

Look at you, Mr. Lothrop. Look at you, BOP. You’re wonderful. Shooby-dooby-wah.

BOP, Update Regarding Former FCI Dublin Inmates (February 26, 2025)

WTTW-TV, Ex-Correctional Officer Accused of Sexually Abusing Inmates in Chicago’s Federal Prison (March 6, 2025)

WIFR-TV, Thomson prison correctional officer accused of having sex with inmates (February 5, 2025)

Florida Politics.com, Ocala prison guard faces 15-plus years on contraband tobacco rap (March 4, 2025)

The Appeal, Trump’s Deleted Police Misconduct Database Was Full of Prison and Border Incidents (February 27, 2025)

– Thomas L. Root

Feds Denied a Mulligan on FCI Dublin Settlement – Update for March 7, 2025

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‘ONE BITE OF THE APPLE,’ FCI DUBLIN JUDGE TELLS BOP

mulligan190430A federal judge last week approved a settlement between the Federal Bureau of Prisons and about 500 female prisoners formerly housed at the now-closed FCI Dublin, slapping down an 11th-hour try by the Bureau to renegotiate the deal to align with Trump Administration “priorities.”

The San Jose Mercury News reported that U.S. District Judge Yvonne Gonzalez Rogers approved a consent decree that will for two years force the BOP to institute widespread reforms for members of the class-action lawsuit, who are now held in other facilities across the country.

The decree, to be overseen by a court-appointed monitor, includes pathways to early release and home confinement and requires the BOP to “issue a formal, public acknowledgement to victims of staff sexual abuse at FCI Dublin.”

The “acknowledgement” came on February 26th. William Lothrop, the very temporary Acting BOP Director, issued a document called an “Update” that read more like a self-pat on the back than a mea culpa. After bragging about his own “33 years of dedicated service with the FBOP” and his having “worked tirelessly with our correctional professionals to rehabilitate and prepare all inmates for successful reentry into our communities,” Lothrop blamed the Dublin Rape Club on “the actions of a few employees” that had “made it abundantly clear that significant changes were needed to ensure our agency achieved its mission.”

He finally got around to the acknowledgement:

On behalf of the FBOP, I want to acknowledge those women who were verified victims of sexual abuse while they were designated at FCI Dublin. We are thankful for the tireless efforts of the United States Attorney’s Office, the Federal Bureau of Investigation, and the Office of the Inspector General for the seven criminal prosecutions and convictions bringing those perpetrators to justice, with an eighth trial scheduled in a few weeks. We can agree that there is absolutely no place for sexual abuse in this agency, and therefore, our agency maintains and reaffirms its zero-tolerance policy for employee sexual misconduct and retaliation.

I have full faith that the FBOP and our team of dedicated correctional professionals will continue to meet the demands of this moment.

welcometohell230518That’s it. No “we’re sorry that sexual criminals were rewarded with leadership positions in a women’s prison?” No “we’re sorry the warden himself was a pervert?” No “we’re sorry that BOP policy was to automatically disbelieve any report made by an inmate victim unless corroborated?” No “we’re sorry we treated you all like subhumans when we packed you on buses with an hour’s notice and called you disgusting names?”

No. Just that “we acknowledge” the “verified victims.” And how many of the victims were unverified? How many other women were not sexually abused but lived in endless fear because they knew that they were in hell. (Think that’s hyperbole? Remember this story).

Everyone involved in this horrific dark chapter in BOP history – especially “dedicated correctional professionals” with 33 years of dedicated service with the FBOP” – should be ashamed for what these women suffered at the hands of sexual brutes and for all of the BOP staff who chose to look the other way.

apple160516Fortunately, the consent decree does more than to merely coax a non-apology from the BOP. Among other things, it prohibits the BOP from denying gender-affirming clothing and accommodations to transgender class members or denying halfway house solely due to immigration status or a detainer. These provisions caused a last-minute delay as the BOP asked the court for more time to “renegotiate” them because they are “inconsistent with the new administration’s priorities.”

“You don’t get two bites at the apple,” the Judge told the BOP’s lawyer. “There is always an opportunity to want more after a negotiated settlement. And that’s why we get it in writing, and that’s why we get it signed, so that you cannot go back.”

The consent decree takes effect March 31, a delay intended to allow the BOP time to train staff on its implementation.

San Jose Mercury News, Judge grants landmark protections for inmates of East Bay’s ‘rape club’ prison (February 25, 2025)

Associated Press, Judge OKs prison abuse settlement, rejecting Trump administration’s push to rewrite protections (February 25, 2025)

BOP, Update Regarding Former FCI Dublin Inmates (February 26, 2025)

– Thomas L. Root

8th Circuit Throws Out Jail’s Publication Ban – Update for March 6, 2025

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BOGUS BAN TARGETED SOME BUT NOT ALL MASS MEDIA PUBLICATIONS 

1stamend160923An Arkansas county jail refused newspapers, magazines, and personal correspondence other than postcards. The publisher of Prison Legal News sued because it could not send its newspaper, books, and promotional letters to inmates. The district court found that the jail was violating the publisher’s 1st Amendment rights, and the jail appealed.

Last week, the 8th Circuit agreed that the jail’s postcard-only policy violated PLN’s 1st Amendment rights. Weighing the four factors for judging such bans adopted by the Supreme Court in Turner v. Safley, the Circuit found that while the jail’s policy had a valid and rational connection to the jail’s interests in reducing contraband and promoting efficiency, it created a de facto ban on PLN communicating its publications to inmates.

The jail argued its ban was intended to keep out drugs – presumably soaked into the newsprint – but the jail let the local paper in, leaving the appeals court skeptical that printed publications sent to wide audiences could be manipulated easily to deliver drugs to Baxter County inmates.

1stAmendment250306The 8th ruled that accommodating PLN would have no appreciable impact on the jail. The proposed alternative of allowing publisher mailings while restricting other non-legal personal mail to postcarda was a readily available means of permitting PLN to communicate.

Considering the factors, the 8th held that “[i]n light of the restrictiveness of the Jail’s policy barring all publications in contrast to the limited impact accommodating publishers would have, we conclude the postcard-only policy was not reasonably related to its penological goals and was instead an exaggerated response constituting a blanket prohibition” on PLN’s publications. The Circuit upheld an injunction prohibiting the jail from continuing the policy.

Human Rights Defense Center v. Baxter County, Case No. 23-1888, 2025 U.S.App. LEXIS 4222 (8th Cir. February 24, 2025)

Turner v. Safley, 482 U.S. 78 (1987)

– Thomas L. Root

Musk Comes for BOP Employees – Update for March 4, 2025

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BOP EMPLOYEES TAKE IT ON THE CHIN

About 23,000 Bureau of Prisons employees will lose up to 25% of their pay starting late this month as the agency tries to reduce costs, Government Executive magazine reported last week.

hiho250304Workers learned at meetings last Tuesday that the BOP was halving — and at seven prisons ending altogether — retention pay incentives, which are designed to keep employees at understaffed facilities. The incentive added an extra 10 to 25% of base pay to each paycheck. Employees at MDC Brooklyn have been getting 35% retention pay due to the appalling conditions at that facility.

The retention bonus cuts were announced chaotically, according to Forbes magazine, “coming from both union leadership and impromptu town halls where little was shared beyond the fact that the bonuses are ending.” One union official told Forbes that “during an annual training session, the complex warden entered the room and abruptly informed them that retention bonuses were gone.”

Elon Musk’s Department of Government Efficiency has picked the BOP as one of the latest targets in its aggressive cost-cutting measures across federal agencies, according to Forbes. During the pandemic, the BOP’s hiring crisis resulted in it being granted the right to pay retention bonuses to keep some prisons operational. Now, Forbes said, DOGE has axed those bonuses, leaving employees in limbo: “Following the director’s firing, many employees are questioning whether they’ll still have a job in the coming weeks.”

Speaking of that, Federal News Network reported last week that former BOP Director Collette Peters, who was fired by the Trump administration within hours of inauguration (a dismissal that was spun as a resignation), has hired a premier federal employment attorney to bring a wrongful dismissal suit on the ground that dismissal of someone in her position required a finding of wrongdoing. In firing Peters, the Administration merely cited the “changing priorities.”

yourefired250304“In response to budget constraints, the BOP has made the difficult decision to greatly reduce, and in some cases eliminate, retention incentives across the agency,” an agency spokesman said in a statement. “This decision was not made lightly, and we recognize the financial hardship this may cause for employees who rely on those incentives.”

What this means is that the staff shortage – that already leads to inadequate healthcare, lack of programs, and frequent lockdowns – is likely to worsen.

Government Executive, 23,000 federal prison workers are set to take pay cuts up to 25% next month (February 26, 2025)

Forbes, Bureau of Prisons to Cancel Staff Retention Bonuses (February 26, 2025)

Federal News Network, Federal firings: You couldn’t make this up (February 20, 2025)

– Thomas L. Root

Supreme Court Orders Rahimi ‘Re-Do’ on 11th Circuit Felon-In-Possession Cases – Update for March 3, 2025

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GVR FOR FIP

tea160404Reading the tea leaves on Supreme Court certiorari decisions would seem to be more the province of SCOTUS geeks, but two GVRs last week have set several gun law observers to speculating that the high court may be looking for a lower court decision that narrows the cases in which the federal ban on felons possessing guns is constitutional (or tees up the issue for the Supreme Court itself).

A ‘GVR’ is a Supreme Court order that simultaneously GRANTS certiorari, VACATES the lower court judgment, and REMANDS the case to the lower court to reconsider it in light of some recent decision. Last week the Supremes GVR’d two 11th Circuit cases, United States v. Rambo and United States v. Whitaker – both challenging whether 18 USC § 922(g)(1)’s felon-in-possession ban violated the 2nd Amendment as applied to the defendants – “for further consideration in light of United States v. Rahimi.”

In Rambo and Whitaker, the 11th held that Rahimi did not abrogate its prior decision that § 922(g)(1) was constitutional as applied to any felon because Rahimi “did not discuss § 922(g)(1) at all, nor did it undermine our previous interpretation of Heller.”

mulligan190430Ohio State University law professor Doug Berman wrote in his Sentencing Law and Policy blog that “[t]his would not be a big deal, except both Whitaker and Rambo were resolved by the 11th Circuit after the Supreme Court’s Rahimi ruling; the 11th Circuit in these cases asserted that Rahimi did not undermine its precedents categorically rejecting a 2nd Amendment challenge to the federal felon-in-possession charge. As I read it, these GVRs are essentially statements from SCOTUS that Rahimi in fact does undermine — or at least should or may be read as undermining — any and all pre-Rahimi precedents that categorically foreclose a 2nd Amendment challenge to broad felon-in-possession laws.”

In the gun law newsletter The Reload, Jake Fogleman noted that “[e]very other 2nd Amendment case sent back down to date has involved a decision that predated [Rahimi]… But the case[s] the justices just sent back [were] already decided in a post-Rahimi world.

Fogleman suggested that maybe SCOTUS just wanted the 11th to explain why it thought Rahimi was irrelevant to the Rambo and Whitaker challenges. However, he conceded that another way to interpret the two GVRs is “that the Court is telegraphing its preferred application of Rahimi to the question of gun rights for convicted felons.” After all, while Rahimi addressed banning guns for those subject to domestic violence restraining orders, the high court “may nevertheless view its focus on individualized judicial findings of dangerousness and temporary disarmament as incompatible with a lower court standard that provides blanket approval of lifetime disarmament for all types of felons.”

gun160711Fogleman admitted that his “interpretations rely on tea leaf reading, a potentially perilous endeavor for an institution as opaque as the Supreme Court. Only the justices themselves know what their actions genuinely entail. However, the unusual step of vacating and remanding a decision to be reconsidered in light of an already-cited case suggests something deeper could be at play.”

We are far from a Supreme Court holding that § 922(g)(1) violates the 2nd Amendment when applied to nonviolent felons, but last week’s GVR action suggests that the high court may get to the question next year.

Order List, Supreme Court, 604 U.S. — (February 24, 2025)

United States v. Rambo, Case No. 23-13772, 2024 U.S.App. LEXIS 18375 (11th Cir., July 25, 2024)

United States v. Whitaker, Case No 24-10693, 2024 U.S.App. LEXIS 20426 (11th Cir., August 14, 2024)

Sentencing Law and Policy, Latest SCOTUS order list full of intrigue while engaging 2nd, 4th and 6th Amendment (originalist?) jurisprudence (February 4, 2025)

The Reload, Analysis: What to Make of the Supreme Court’s Latest GVR (February 28, 2025)

– Thomas L. Root

Keeping Your Eye On The Prize – Update for February 28, 2025

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4TH CIRCUIT SAYS THAT IN A § 2244 INQUIRY, LEAVE THE PREJUDICE FOR LATER

In order to be allowed to file a second-or-successive 28 USC § 2255 habeas corpus motion, a prisoner has to meet some tough “gatekeeping” standards, that newly discovered evidence would have led a jury to find him or her innocent or that the Supreme Court had adopted a new rule of constitutional law, made retroactive to cases on collateral review, that was previously unavailable.”

threaten250228In 2008, Scott Rendelman was convicted for mailing threatening communications under 18 USC § 876. The district court instructed the jury that the government need prove only that a “reasonable person” would find Scott’s communications threatening, and the jury did so. However, 15 years later, the Supreme Court held in Counterman v. Colorado that the 1st Amendment requires the government to prove that the defendant actually had some understanding of his statements’ threatening character.

Scott, who said his many letters to government officials were just intended to show that prison does not rehabilitate people, asked the 4th Circuit for authorization to file a successive 28 USC § 2255 motion based on Counterman. The government agreed that he had satisfied the gatekeeping requirements of § 2255(h), but it argued that the court should also impose a “plausibility requirement.”

In other words, the government said, even if Counterman had been applied, Scott would have lost his jury trial. The US Attorney called on the Circuit to require Scott to show that constitutional error “had substantial and injurious effect or influence in determining the jury’s verdict, as required for relief under § 2255.”

eyesonprize250228The 4th refused the government’s demand. “The focus of our inquiry at this stage must always remain on the § 2255(h) gatekeeping standards,” the Circuit wrote. “We’ve already found that Rendelman has satisfied the § 2255(h) gatekeeping requirements. There isn’t an additional plausibility requirement he must meet… Counterman is on point. Rendelman was prosecuted for a true-threat offense. The jury wasn’t instructed that the government had to prove beyond a reasonable doubt that he subjectively intended to threaten another, and the government acknowledges that this omission was error… Whether that error warrants relief under § 2255 is a merits question for the district court to decide in the first instance when it considers Rendelman’s § 2255 motion.

In re Rendelman, Case No. 23-257, 2025 U.S. App. LEXIS 4087 (4th Cir. February 21, 2025)

Counterman v. Colorado, 600 U.S. 66 (2023)

– Thomas L. Root