US Attorney’s Office ‘Losing the Trust’ of the Public – Update for March 24, 2026

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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.

‘PANTS ON FIRE,’ FEDERAL JUDGE TELLS AUSA

A remarkable exchange occurred last week in a New Jersey courtroom.

Judge Zahid Quraishi was irate that a US Attorney’s Office made a sweetheart plea deal with a child porn defendant before discovering that he possessed a lot more porn of a much more disgusting nature than the government knew when it negotiated the plea agreement. As a result, the plea agreement allowed for a sentence that would max out at about a third of what the advisory guideline sentencing range turned out to be.

Back to Judge Quraishi: The Judge is the first Muslim to serve as a federal district judge. And he’s hardly the poster child for the “radical left lunatic” judges that President Trump regularly rails against. As an Army captain in the Judge Advocate General’s corps, Judge Quiraishi served in Iraq. Unusual for an Army lawyer, he was awarded a combat action badge, which suggests not only that he never had bone spurs, but that he “actively engag[ed] or [was] engaged by the enemy, and perform[ed] satisfactorily in accordance with prescribed rules of engagement.” Such as being shot at.

In civilian life, the Judge served as a lawyer for Immigrations and Customs Enforcement, as an Assistant US Attorney in the US Attorney’s Office for the District of New Jersey, and then as a US Magistrate Judge. In his spare time, Judge Quraishi taught courses on trial presentation at Rutgers Law School.

The Judge presumably knows his stuff, especially where the proper functioning of the US Attorney’s Office is concerned.

Previously, Judge Matthew Brann (Middle District of Pennsylvania, who brought into New Jersey to hear challenges to the US Attorney’s Office) had ruled that the US Attorney’s office was operating illegally after parking lot lawyer Alina Habba, Trump’s former personal lawyer, had been thrown out of office as US Attorney. Attorney General Pam Bondi appointed a triumvirate of attorneys to run the office in her place. Judge Brann found that appointment illegal, too.

Concerned about Judge Brann’s holding, Judge Quraishi – already furious that the US Attorney’s sloppy plea deal meant that he could not hammer Villafane with a sentence in excess of a half century – demanded that the AUSA be ready to answer questions at the sentencing hearing about who was running things. But the AUSA was able to offer only blandishments not based on personal knowledge, sort of what you might get if you asked a soldier in the trenches who was really managing the war effort back in Washington.

The AUSA’s equivocal answers caused the Judge to demand that the three acting heads of the office appear to testify. Exasperated, the Judge told the AUSA:

What you’ve told me today, what your representation is, which I don’t believe, by the way. I won’t believe it until you testify. That is what has happened to the credibility of your office. Generations of Assistant U.S. Attorneys had built the goodwill of that office for your generation to destroy it within a year.

The extraordinary rebuke came after the Judge told courtroom security officers to remove a supervisory AUSA from the courtroom because he hadn’t filed a notice of appearance and he just wouldn’t shut up. (In an in-your-face response, the AUSA – Mark Coyne, head of the Office’s Appellate Division – filed a notice of appearance the next day).

A DOJ spokesman said, “Unfortunately some judges are more interested in courtroom theatrics and constitutional overreach than promoting public safety. It is an especially troubling moment when a court chooses to sideline a case involving child exploitation.” This disingenuous criticism – the judge is angry that a US Attorney error prevents him from sentencing the defendant to a sentence three times longer than the deal the plea agreement includes – will probably only fan the flames.

So much for the presumption of regularity that US Attorneys have enjoyed from the courts for over 225 years.  As Judge Quirashi put it to the AUSA, ““You have lost the confidence and the trust of this court. You have lost the confidence and the trust of the New Jersey legal community, and you are losing the trust and confidence of the public.”

A final note: Yesterday, the New Jersey federal judges appointed a new interim US attorney, Robert Frazer, “a career prosecutor who federal court veterans said could bring some stability to an office that has been in chaos for much of the past year,” according to The New York Times.

According to a court filing, the Times said, Frazer’s appointment came after consultations between district court judges and the DOJ’s senior leadership.  Justice officials “reportedly welcomed his selection. That response itself represented a shift; other U.S. attorneys appointed by judges around the country during President Trump’s second term have been fired.”

Transcript, Doc 36, United States v. Villafane, Case No. 3:25-cr-00232 (March 16, 2026)

New York Times, Judge Ejects Federal Prosecutor From Court and Orders Bosses to Testify (March 17, 2026)

~ Thomas L. Root

Bo, Beer and Beatdowns: ‘How Dangerous is 922(g)(1) Defendant? – Update for March 23, 2026

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6th CIRCUIT EXPANDS ABILITY TO CHALLENGE FELON-IN-POSSESSION CONSTITUTIONALITY

Bo Hostettler is not a quick learner.  After doing 48 months in prison for being a felon in possession of a gun, a violation of 18 USC § 922(g)(1), Bo got caught while on supervised release with, you guessed it, a gun.

Charged again as a felon in possession, Bo argued that 922(g)(1) violated his 2nd Amendment rights, both on its face and as applied to his circumstances. His District Court agreed and dismissed the charges.

The Government appealed to the 6th Circuit. While the appeal was pending, the Circuit re-examined its 2nd Amendment jurisprudence in light of Bruen and Rahimi. The result of that was United States v. Williams, a 2024 decision in which the 6th upheld § 922(g)(1)’s constitutionality  “on its face and as applied to dangerous people. However, we explained that when the government disarms people on a class-wide basis, like it does for felons under § 922(g)(1), individuals must have a reasonable opportunity to prove that they don’t fit the class-wide generalization.”

The Williams court focused on the defendant’s prior convictions for aggravated robbery and attempted murder as “most probative of the defendant’s dangerousness... because they require violence against another person [and] provide at least strong evidence that the individual is dangerous. But even where a defendant has committed those types of crimes, we recognized that 922(g)(1) might be susceptible to an as-applied challenge depending on the unique circumstances of the offenses committed.”

In Bo’s case, the 6th said, the burden lies with him to show he is not dangerous. The district court must consider hisentire criminal history,  not just his felony convictions; and the fact that he was caught with a gun while on supervised release is “potentially relevant.”

The government argued that Bo’s criminal history recited in his Presentence Report was sufficient to prove Bo was dangerous. But the Circuit said that the PSR criminal history contained no information about the underlying circumstances or details of his criminal conduct in those convictions. “Without that information,” the 6th held, “the district court was unable to make the ‘individualized assessment of dangerousness’ that our precedent requires.”

The Circuit remanded Bo’s case to the district court ‘to engage in the requisite factfinding,’ where Bo will have the opportunity to essentially retry all of his prior convictions – misdemeanor and felony – to prove his lack of dangerousness.

Still, this case is important, because the Circuit has provided defendants a roadmap to prove lack of dangerousness, and that map suggests that mere labels – such as “theft” or “assault” yield to the facts of the offense. 

I recall an out-of-town man visiting my hometown about 30 years ago who had the bad luck to be black while enjoying a beer in one of our seedier establishments. Five not-so-black patrons who had consumed too much beer and not enough lessons in racial tolerance harassed him, finally calling him out back to teach him a lesson.

Sadly for the harassers, the black patron was a Marine Corps Force Recon veteran. All five tough guys were whimpering on the ground by the time the police arrived.

Our local prosecutor, understanding that the black out-of-towner did not vote in county elections, but the families of the five attackers did, charged the Marine vet with five counts of assault. The vet finally pled to one Ohio 5th-degree felony assault and got no prison time.

He also undoubtedly never came to this county again.

Hostettler seems to suggest that if the veteran wanted to own a gun, defending himself in a three-to-one contest (if you’re thinking ‘five-to-one’, see this) should be the kind of facts that convince the court that the Marine just wanted to drink his beer.

United States v. Hostettler, Case No 24-3403, 2026 USAppLEXIS 8328 (6th Cir. March 20, 2026)

United States v. Williams, 113 F.4th 637 (6th Cir. 2024)

~ Thomas L. Root

A Justice’s Plea for Sentence Fairness – Update for March 19, 2026

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GORSUCH ARGUES FOR SUPERVISED RELEASE FAIRNESS

The Supreme Court last week denied review to Jaron Burnett, now serving a supervised release violation. Almost 20 years ago, Jaron pled guilty to an offense with a 10-year statutory maximum. He was sentenced to 105 months in prison, followed by 15 years of supervised release (either to assist him in reacclimating to society or to languish under the thumb of a heartless probation officer, depending on your point of view).

Six years after getting out, Jaron was charged with violating the terms of his supervised release (a little supervised release background here) and received a 13-month sentence. That new term brought his total time in prison to 118 months, just two fewer than the maximum Congress authorized for his underlying conviction. In 2022, Jaron got out and resumed supervised release.

In 2024, Jaron was violated again. This time, he argued that because prison time for the supervised release violation would take the total time for all of his sentence to more than the statutory maximum term of 120 months for the underlying offense, Jaron had a 6th Amendment right to have the government prove its case to a jury beyond a reasonable doubt.

The district court disagreed, applying a preponderance standard and finding that Jaron had committed some of the alleged violations. Based on that, the court sentenced him to 14 more months in prison, bringing his total term of incarceration to 132 months—12 more than the statutory maximum for his underlying crime. The court of appeals affirmed that result, and last week, the Supreme Court denied review.

Justice Neil Gorsuch disagreed. He wrote,

Mr. Burnett does not ask for much… All [he] claims is the right to have a jury decide any contested facts under the reasonable doubt standard where, as here, a court seeks to impose a sentence that will cause a defendant’s total time in prison to exceed the statutory maximum Congress has authorized for his underlying conviction.

I would have taken this case to consider that argument… [U]nder the logic of the decision below, defendants like these can effectively wind up losing for decades (and sometimes forever) the right to receive a federal jury trial to resolve charges against them under the reasonable doubt standard… Bypassing juries, trials, and the reasonable doubt standard in this way may hold some obvious advantages for prosecutors… The Court’s failure to grant review to address whether what happened to Mr. Burnett complies with th[e] 6th Amendment… is unfortunate. I can only hope we will take up another case like his soon—and that, in the meantime, lower courts will more carefully consider the 6th Amendment’s application in this context.”

Burnett v. United States, Case No. 25-5442, 2026 U.S. LEXIS 1196 (March 9, 2026)

~ Thomas L. Root

 

Playing for Time, Habeas-Style – Update for March 17, 2026

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DELAY IS VICTORY FOR THE GOVERNMENT

Apropos of yesterday’s update, the government’s enjoyment of a presumption of regularity usually leads to a court granting it as many extensions of time to answer prisoners’ petitions as it requests, and for as long as the government wants. 

This almost unchecked ability to run out the clock, routinely overlooked by courts that pretend a decision within a year is a “swift and imperative remedy”, has become a potent tool in a U.S. attorney’s litigation toolbox.

Anthony Fortner brought a 28 USC § 2241 habeas corpus action against the Bureau of Prisons, claiming that the BOP wrongfully refused his request to properly award and apply additional First Step Act time credits for 543 days he had been incarcerated in Texas.  Tony asserted that, had BOP properly applied the credits he earned in Texas, he would have qualified for release to home confinement when he filed his habeas petition in June 2024.

The district court dismissed the habeas for lack of jurisdiction. That’s a topic in itself that I won’t get into here. Today’s issue is mootness.

While on appeal, Tony was moved to a halfway house (where he will be for 27 months). Because of that, last week, the 8th Circuit dismissed his habeas corpus motion as moot.

Transfer to a halfway house “is precisely the relief his habeas petition requested and the BOP previously denied,” the Circuit observed. “The government argues the appeal has become moot. It is well-established that an appeal should… be dismissed as moot when, by virtue of an intervening event, a court of appeals cannot grant any effectual relief whatever in favor of the appellant.”

Tony opposed dismissal, arguing that the capable-of-repetition-yet-evading-review doctrine, which often defeats a mootness claim, should apply because claims like his often recur. But the “capable-of-repetition” exception is an exception for a good reason: it applies only in exceptional situations, the 8th ruled, where “(1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration; and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again.”

In Tony’s case, the Circuit ignored the first standard but focused on the second, ruling that there was no reasonable expectation that he would again be subject to the same deprivation of time credits.

Tony filed his habeas 23 months ago. The 8th’s decision underscores how courts’ inherent docket delays benefit the home team and can make the prisoner’s task in obtaining prompt review of a BOP decision a daunting one.

Fortner v. Eischen, Warden, Case No. 24-3596, 2026 U.S.App. LEXIS 7413 (8th Cir. March 13, 2026)

~ Thomas L. Root

 

Government Behaving Badly – Update for March 16, 2026

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‘THIS JOB SUCKS’ DESCRIBES THE CURRENT STATE OF DOJ

The wheels appear to be coming off the trucks at the Dept of Justice.

The Atlantic reported last month that DOJ had lost nearly 10,000 employees from Nov 2024 to Nov 2025. U.S. Attorneys’ offices have shed 14% of their workforce, a staggering one-year reduction unlike anything the department has seen in recent memory, former officials told The New York Times.

It’s not surprising. As (now former) AUSA Julie Le told a Minnesota district judge in open court, “The system sucks. This job sucks. I wish you could hold me in contempt so that I could get 24 hours of sleep.” Le had been assigned 88 cases in less than a month, according to an NBC News review of federal court records.

What’s worse for the government, the U.S. Attorneys’ offices – long a plum job for outstanding young lawyers – are facing serious recruiting problems. Chad Mizelle, a former chief of staff to Attorney General Pam Bondi, posted an unusual solicitation on the X formerly known as Twitter in early February:

“If you are a lawyer, are interested in being an AUSA, and support President Trump and anti-crime agenda, [direct message] me.”

The New York Times observed that the “post reflected the prevailing sentiment inside the department — that Mr. Trump has the right to hire only those willing to execute his agenda. It also highlighted the dynamic that appears to be contributing to the very staffing shortages Mr. Mizelle tried to address. The intermingling of law enforcement and political goals has made the department, long a magnet for platinum legal talent, an unappealing landing spot…”

The number of DOJ and AUSA applications is down significantly, officials told the Times, even as Trump loyalists have publicized vacancies through official and unconventional channels. One former prosecutor who served on a hiring committee in the U.S. Attorney’s offices for the Central District of California, said that candidates who expressed support for Trump policies were often ahead of applicants, even candidates with weak academic records and little litigation experience.

Meanwhile, the diminished numbers at DOJ and the U.S. Attorneys’ offices are being called on to do a lot more. The Atlantic said DOJ lawyers spent weeks vetting the Jeffrey Epstein files in response to the Epstein Files Transparency Act. The DOJ dedicated hundreds of lawyers, including more than 125 from the Southern District of New York, to reviewing over two million documents in the case.

“Add to that,” the Atlantic said, “a backlog of federal immigration cases and the ongoing legal fallout from the administration’s mass-deportation push, and the result is an organization that is thoroughly overwhelmed.”

In a rare ruling, in late February, Minnesota District Judge Paul A. Magnuson dismissed a felon-in-possession case under the Speedy Trial Act after prosecutors told the court that factors including a staffing shortage had prevented their office from meeting a deadline. The U.S. Attorney’s office has lost a significant number of experienced AUSAs who objected to the way DOJ was handling cases related to the immigration crackdown in the state.

The effect of all of this is becoming obvious. In New Jersey, the District Court forced the Acting U.S. Attorney to audit the government’s sorry record of compliance with court orders. In a filing last month, the government admitted to violating court orders 56 times in 574 immigration proceedings. The total included 18 missed deadlines and 10 failures to turn over evidence as ordered.

The presumption of regularity is a judicially created doctrine that grants the government an advantage not enjoyed by private litigants. The presumption directs courts, unless there is clear evidence to the contrary, that executive officials have “properly discharged their official duties” and that government agencies have acted with procedural regularity and with good-faith, non-pretextual reasons.

Courts and scholars are now wondering whether the government should continue to enjoy that presumption. The liberal website Just Security and the conservative Cato Institute have both questioned it in lengthy articles. The liberal blog Talking Points Memo said last month, “The pace of this important story is slow by dramatic standards, but by the somnambulant standards of the federal judiciary, the erosion of the credibility of the Justice Department, which took decades to establish and has all but vanished in one year under Trump II, is moving at lightning speed.”

Last month, District Judge Christine O’Hearn (District of New Jersey), wrote, “[T]he presumption of regularity and integrity previously and routinely afforded to the Executive branch and the United States Attorney’s Office has been undeniably eroded in this jurisdiction and across the country, and this Court will no longer blindly accept statements of fact from Respondents unless they are made under oath by an individual with personal knowledge…”

At the end of January, Minnesota Chief District Judge Patrick Schiltz issued an order that found that Immigration and Customs Enforcement had violated 96 court orders stemming from its crackdown in the state and had disobeyed more court orders in one month than “some federal agencies have violated in their entire existence.”

When U.S. Attorney Daniel Rosen emailed Judge Schiltz to complain that 96 violations was an exaggeration, Schiltz blasted back, warning Rosen that his office and ICE officials must comply with court orders or risk criminal contempt.

On March 5, the Minnesota Reformer reported that for a second time in a week, Rosen was ordered to appear before two different judges to explain why he should not be held in contempt for the government’s violations of court orders.

All of this is consequential for federal prisoners, who, on one hand, will experience more delay from more frequent government extensions but, on the other, may find government opposition to their motions less competently (and less honestly) done. To be sure, an inmate filer should be more vigorous in arguing that the government should receive no benefit from a presumption of good faith and regularity.

A final note on this incomplete listing of all of DOJ’s current travails: last week, a senior AUSA in the Eastern District of North Carolina was fired after filing a response in a civil action that included “fabricated quotations and misstatements of case holdings” and then made “false or misleading statements” about their origins, according to Bloomberg Law.

In a March 2 order, a District Court magistrate judge ordered the U.S. Attorney’s Office for the Eastern District of North Carolina senior leadership into court to explain why the entire office shouldn’t be held jointly responsiblefor the undisclosed and incredibly sloppy use of artificial intelligence in a court filing.

The AUSA told the Court that he had used AI to “catch up” on a draft filing and that the errors were accidental. But the Magistrate Judge looked at prior filings by the same AUSA and found similar errors. “It’s difficult to credit your response given what you’ve done here,” the Judge said. No presumption of regularity here…

The New York Times, 220,000 Fewer Workers: How Trump’s Cuts Affected Every Federal Agency (January 9, 2026)

NBC News, Government attorney who told judge in ICE case, ‘This job sucks,’ removed from detail (February 4, 2026)

The Atlantic, The DOJ Isn’t Built for This (February 19, 2026)

The New York Times, Demanding Support for Trump, Justice Dept. Struggles to Recruit Prosecutors (February 11, 2026)

Just Security, The “Presumption of Regularity” in Trump Administration Litigation (November 20, 2025)

Cato Institute, Do the Feds Still Merit the Court’s Presumption of Regularity? (January 5, 2026)

Talking Points Memo, Judges Big Mad at Trump DOJ in Wave of New Rebukes (February 23, 2026)

Declaration, Doc 21-1, Kumar v Soto, Case No. 2:26-cv-777 (D. New Jersey, filed February 13, 2026)

Order, Doc 10, Singh v Tsoukaris, Case No 1:26-cv-1531(D. New Jersey, filed February 20, 2026) 

Order, Doc 10, Juan TR v. Noem, Case No 0-26-cv-107 (D. Minn., filed January 26, 2026)

Minnesota Reformer, US Attorney Daniel Rosen defends himself, again, in contempt hearing for ICE order violations (March 5, 2026)

ABA Journal, Federal prosecutor resigns after AI errors found in court filing (March 11, 2026)

~ Thomas L. Root

Circuit Split on Extent of § 2244 Permission May Portend SCOTUS Review – Update for March 13, 2026

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RAGLAND’S BEST…

Michael Ragland won one at the 11th Circuit last week, convincing the appeals court on rehearing that because his pre-First Step Act sentence had been vacated after the FSA passed, he should be resentenced under the Act (which would cut out excess time on six 18 USC § 924(c) convictions, dropping his sentence from 172 to about 65 years).

Prior to the FSA, passed December 21, 2018, anyone convicted of a second § 924(c) conviction for using or possessing a gun during a drug or violent crime – even if the offense occurred on a successive day – would receive a mandatory minimum sentence of 25 years on top of any sentence for any other count.  Sell a half pound of pot every day for a week, and you would be sentenced for selling 3.5 lbs. of weed (maybe 21 months in prison, not a lot under the Guideline). Selling that pot with a gun stuck in your pants, and before First Step, you would pile seven § 924(c) counts onto your sentence.  The first one would add at least 5 years to your 21 months. But § 924(c) counts for successive days would add a whopping 150 years – 25 years per count – to the total. Your sentence just became 1,881 months in prison.

We have covered all of this before. Remember the pancakes?

That wasn’t what § 924(c) was intended to do.  Rather, Congress meant that if you got convicted of possessing, using or carrying a gun during a violent or drug crime, did your time, and then got convicted of another § 924(c) offense after you got out, you hadn’t learned a thing. A 25-year sentence is just what you need.  But Congress was sloppy, writing the statute to say that any subsequent § 924(c) offense – even if it happened the next day or even an hour later – carried the 25 years. U.S. Attorneys back then were not known for moderation (unlike these days, when they’re known for not telling the truth). The “stacking” aspect of the old § 924(c) statute was an irresistible tool to them.

FSA changed that. Now, for the 25-year mandatory minimum to apply, you have to have been convicted of a prior § 924(c). That would still give our hypothetical weed seller with a gun stuck in his pants a minimum sentence of 21 months plus a mandatory 420 months for the gun, but his sentence would have at least become merely excessive rather than stratospheric.

Unfortunately, the FSA change to § 924(c) did not apply retroactively to people already sentenced. That caused some weirdly unjust outcomes. If our hypothetical weed seller had been sentenced on December 1, 2018, he would have gotten the full 1,881 months. Had his sentence been imposed just a month later, on January 2, 2019, his sentence would have been about 24% of that.

What was even more unfair (if that were possible) was that people sentenced before FSA passed but had their sentences vacated on appeal (requiring resentencing) were being denied FSA’s protection when the new sentence was imposed, because their first sentence had been handed down before FSA passed.

The Supreme Court’s 2025 decision in Hewitt v. United States fixed that anomaly, holding that any § 924(c) sentence – even a resentencing – imposed after First Step became law had to comply with the FSA. Thus, for Mike Ragland, last week’s outcome was preordained by Hewitt and surprised no one. The decision is interesting, instead, for its potential as the next Supreme Court § 2255 procedure case.

Mike previously got permission under 28 USC § 2244 to file a second or successive § 2255 petition raising the § 924(c) resentencing issue. But while the § 2255 motion was pending in the district court, he asked permission to amend it to raise other sentencing issues. The district court refused Mike unless he got approval from the 11th Circuit to file yet another successive § 2255 motion.

In last week’s decision, the 11th agreed with the district court that Mike had to file a fresh § 2244 request for a second or successive § 2255 if he had other issues to raise.

The 11th said,

Here, we authorized Ragland to raise ‘one claim’ in his successive § 2255 motion: that he was actually innocent of Count Sixteen… Ragland argues that the 7th Circuit in Reyes v. United States reached a different result on similar facts… The 4th Circuit has also adopted this approach… To the extent our sister courts permit movants to add new claims that have not been screened, and which exceed the bounds of the leave granted by the court of appeals, we respectfully disagree…

The Circuit split on this procedural question is the kind of issue the Supreme Court lives for. Don’t be surprised to see it on SCOTUS’s docket next term.

United States v. Ragland, Case No. 23-12278, 2026 U.S. App. LEXIS 6612 (11th Cir. March 5, 2026).

Hewitt v. United States, 606 U.S. 419, 145 S.Ct. 2165 (2025)

~ Thomas L. Root

New Jersey Vacation Goes Awry – Update for March 12, 2026

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WE FIND THE GOVERNMENT’S B.S. ‘TROUBLING’

Crystall Robles-Lopez was a homegirl. At 30 years old, she had never traveled from her home in Puerto Rico, never been on an airplane, and instead grew up in poverty. When someone offered her $1,500 to carry a couple of suitcases full of… well, something, Crystall wasn’t sure what… on an airline flight to New Jersey, she felt like she had won the lottery.

Free money and an all-expenses paid trip to sunny Newark, New Jersey. Wowsa!

Sadly, the “something” was about 25 lbs. of powder cocaine. Crystall didn’t make it out of the San Juan airport before being caught.

Crystall’s Presentence Report recommended she receive a 3-level Guidelines (USSG § 3B1.2) mitigating-role reduction. The government argued against it, pointing out that the only crime at issue was Crystall transporting coke, and she couldn’t have a minor role in a one-person crime. Besides, the government said, she was the ‘primary player’ in the conspiracy, she understood the crux of the criminal activity more than any other participant, she hailed Uber rides to take herself to the hotel and then to the airport, and she maneuvered the cocaine to minimize the potential to get caught in a highly policed environment.”

Last week, the 1st Circuit threw out Crystall’s sentence. It criticized the district court for not identifying the “relevant conduct as a whole” to determine Crystall’s role among all of the players. Instead, the Circuit observed, “the district court recognized only the steps Robles herself took to smuggle the two suitcases of cocaine through the airport and onto the plane. By declining to consider any ‘activities… undertaken in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense,’’ the court failed to identify the full universe of relevant participants.”

“Instead,” the 1st said, the district court merely recited “the facts that made Robles guilty of the crimes for which she was charged.” But the purpose of the § 3B1.2 factors “is not to establish guilt; it is to help a court decide whether to apply leniency because a defendant, while guilty, played a substantially subordinate role in the criminal activity.” The district court “incorrectly… placed inappropriate determinative weight on the government’s assertion that her role was indispensable to the success of the criminal endeavor.” But the Guidelines note that “a defendant who… is simply being paid to perform certain tasks should be considered for an adjustment” and caution that “an essential or indispensable role in the criminal activity is not determinative” of eligibility.

The 1st Circuit included a sharp rebuke aimed at the government: “The government makes an unsupportable attempt in its appellate briefing to cast Robles as ‘the star of the show’ and the ‘primary player’ in the conspiracy, making assertions about her role and activities that are patently inconsistent with uncontroverted record evidence… These exaggerations and inconsistencies by the government are troubling.”

United States v. Robles-López, Case No. 23-1587, 2026 U.S. App. LEXIS 6427 (1st Cir., dated February 4, 2026, but released on March 4, 2026)

~ Thomas L. Root

Diesel Therapy Doesn’t Cure Mootness, 10th Circuit Says – Update for March 10, 2026

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THE PRISONER MOVES BUT THE LAWSUIT SURVIVES

One of the tools a prison administration’s toolbox has traditionally used to thwart an inmate’s lawsuit against the conditions of confinement is diesel therapy, a transfer (always involuntary) to a new joint. Moving a prisoner somewhere else – besides the disruption to his or her life the transfer causes – is a great way for a prison administration to rid itself of a troublesome inmate, impose punishment without calling it that (or being called to account for it) and sometimes to let the government argue that the inmate’s suit about prison conditions at Smiley Face Correctional Institution is moot because he or she is now at Happy Time Prison, hundreds or thousands of miles away from where the complained-of deprivation occurred.

Mootness is a constitutional concept, grounded in Article III’s “case or controversy” requirement. The doctrine provides that although an actual controversy may have existed at the action’s onset, if that controversy ceases to exist, a federal court must dismiss the action for want of subject-matter jurisdiction. Even if a case is not constitutionally moot, it may be prudentially moot, where the court decides in its discretion that the likelihood of continued injury is too abstract for the court to waste its time on it.

Colorado prisoner Rodney Eaves sued the State in federal court, arguing that officials at the facility where he was housed violated his 1st Amendment rights by denying him access to relics and rituals used in the practice of his native American faith. He wanted an injunction from the federal district court ordering prison officials at his facility to stop interfering with his 1st Amendment rights and statutory rights under the Religious Land Use and Institutionalized Persons Act, 42 USC 2000cc-2000cc-1.

During the suit’s pendency, Colorado transferred him to another prison and then argued that his suit was moot. The federal district court denied the State’s mootness claim, and the State appealed.

Last week, the 10th Circuit agreed with Rod, holding that “where an incarcerated plaintiff alleges exposure to unlawful conditions of confinement at the time he files his complaint, a subsequent transfer to another prison will not render his claim(s) for injunctive relief constitutionally moot unless defendant can show plaintiff is not and will not be exposed, even in part, to such conditions at his new facility.” A case becomes constitutionally moot only when party claiming mootness “establishes subsequent events make it impossible for a court to grant any effective relief whatever to his adversary.”

To avoid dismissal on the basis of prudential mootness, the 10th held, the plaintiff “bears the burden of establishing a recurrent violation of the wrongs about which he complained is more than an abstract possibility, such that the court may grant him some meaningful relief. Here, Rod submitted an affidavit stating his conditions of confinement at the new prison were substantially the same as they were at the old one.  Prison officials did not deny this. The Circuit ruled that because the State had “submitted nothing to contradict [Rod’s affidavit], the record points in only one direction… the State continues to subject Plaintiff post transfer to at least some of the allegedly unlawful conditions of confinement from which he seeks relief.” Thus, Rod’s religious freedom claims were not prudentially moot.

Eaves v Polis, Case No 23-1143, 2026 U.S. App. LEXIS 6341 (10th Cir. March 4, 2026)

Colorado Politics, 10th Circuit distances itself from prior decision making it easier to toss prisoner lawsuits (March 6, 2026)

~ Thomas L. Root

Guns, Drugs and Appellate Waivers – Update for March 9, 2026

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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.

SUPREME COURT HAS PRISONER-FRIENDLY WEEK…

The Supremes heard oral arguments in two cases last week, and while it is always perilous to predict the outcome from what happens in oral argument, the signs favor two pro-prisoner decisions.

In the closely-watched United States v. Hemani case, the government sought review of a 5th Circuit holding that 18 USC § 922(g)(3) – which prohibits drug abusers from possessing guns – could be applied to a gun owner who smoked pot a few times a week consistent with the 2nd Amendment.

Attorneys for the government compared § 922(g)(3) to colonial-era laws that disarmed “habitual drunkards.” However, Justice Neil Gorsuch wondered whether Hemani even qualified as a “habitual user” of marijuana. Gorsuch observed that the term “habitual drunkard” carried a very different meaning in early American history, because people generally drank alcohol in great quantity. “John Adams,” Gorsuch said, “took a tankard of hard cider with his breakfast every day,” while “James Madison reportedly drank a pint of whiskey every day.”

And if those Founding Fathers were not “habitual drunkards,” Gorsuch asked, “then what do we know about Mr. Hemani? We know he uses marijuana … about every other day… [W]e don’t even know the quantity of how much he uses every other day.”  And the federal government, Gorsuch said, “has not been able to define what a user is.”

A majority of the justices seemed to agree that § 922(g)(3) may be overbroad, lumping together occasional drug users with people addicted to drugs who threaten public safety. “Is it the government’s position that if I unlawfully use Ambien or I unlawfully use Xanax, then I become dangerous?” Justice Amy Coney Barrett asked the government’s attorney. “What is the government’s evidence that using marijuana a couple times a week makes someone dangerous?” she added.

If the Hemani opinion focuses on “dangerousness,” it may advance arguments that nonviolent felons should not be subject to § 922(g)(1). Politico, however, warned that it is “unclear whether the justices will use the case against Ali Hemani to issue another major ruling on when the government can intrude on the 2nd Amendment right to bear arms.”

A case that has drawn lesser interest (but is maybe more consequential for defendants) is Hunter v. United States. Hunter asks what exceptions exist to federal defendants’ waivers of their right to appeal, language that appears in virtually every one of the 94% of federal cases that end with a guilty plea every year.

SCOTUSBlog reported that “[t]he justices seemed poised to endorse more exceptions than just the two the government endorsed – ones for ineffective assistance of counsel in entering into a plea agreement and for sentences above the statutory maximum. A number of justices also expressed misgivings about relying on contract law to define exceptions to appellate waivers… and a majority seemed likely to hold, at a minimum, that a defendant could escape from an appellate waiver when enforcing it would result in a “miscarriage of justice…”

The National Law Journal observed that DOJ’s “hard line on enforcing plea bargained waivers of appeal took U.S. Supreme Court justices aback,” even suggesting that if a district court were avowedly racist at sentencing, an appeal waiver would prevent the defendant from getting any relief.

Writing last week in his Sentencing Law and Policy blog, Ohio State University law prof Doug Berman argued that broad sentencing appeal waivers “insulate all sorts of sentencing errors from scrutiny and review, and they seem fundamentally inconsistent with the decision by Congress in the Sentencing Reform Act of 1984 to provide both defendants and the government with the right… to seek appellate ‘review of an otherwise final sentence’.”

Berman wrote that he “was pleased to discover at least one Justice (Justice Jackson) seemed drawn to the idea that broad sentencing appeal waivers were void as against public policy, and I was even more pleased that it was not clear that any Justice was eager to embrace the government’s suggestion that broad sentencing appeal waivers were subject to almost no exceptions. I predict the majority of the Court will end up between these extremes, and I am already looking forward to seeing what the middle ground will be.”

United States v. Hemani, Case No. 24-1234 (oral argument March 2, 2026)

Politico, Supreme Court wrestles with gun ban for drug users (March 2, 2026)

SCOTUSBlog, Supreme Court skeptical of law banning drug users from possessing firearms (March 2, 2026)

New York Times, Supreme Court Appears Skeptical of Law Banning Drug Users From Owning Guns (March 2, 2026)

Hunter v. United States, Case No. 24-1063 (oral argument March 3, 2026)

SCOTUSBlog, Justices poised to adopt exceptions to federal criminal defendants’ appellate waivers (March 6, 2026)

National Law Journal, ‘Racist Sentencing Judge?’: DOJ Stuns Supreme Court With Stance on Appeal Waivers (March 4, 2026)

Sentencing Law and Policy, Broad array of Justices express broad concerns about broad appeal waivers in Hunter oral argument (March 3, 2026)

~ Thomas L. Root

Good Ideas, Recycled, in Senate – Update for March 6, 2026

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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.

SMARTER SENTENCING ACT IS BACK

Senators Dick Durbin (D-IL), Ranking Member of the Senate Judiciary Committee, and Mike Lee (R-UT) last week reintroduced the Smarter Sentencing Act as S.3959, which seeks to update sentencing for federal drug offenses, and S. 3960, the Smarter Pretrial Detention for Drug Charges Act, which would give judges greater discretion in pretrial detention decisions for nonviolent drug charges.

The Smarter Sentencing Act, introduced in two prior Congresses, would lower mandatory minimum sentences for some nonviolent drug crimes. For reasons not clear to me, while Sen. Durbin’s office trumpeted this as the Smarter Sentencing Act, S.3959 is actually titled “A bill to focus limited Federal resources on the most serious offenders.”

Over half of all federal inmates are serving sentences for drug offenses, and many were convicted of an offense carrying a mandatory minimum penalty. By lowering mandatory sentences for certain nonviolent drug offenses, the bill provides federal judges more flexibility to determine when the harshest penalties should apply on a case-by-case basis.

Durbin and Lee first introduced the Smarter Sentencing Act in 2013; some reforms were later included in the First Step Act. The current bill is cosponsored by eight Democratic senators and supported by the National Association of Criminal Defense Lawyers, Due Process Institute, Federal Public and Community Defenders, Dream.org, and Association of Prosecuting Attorneys.

The Smarter Pretrial Detention for Drug Charges Act would remove blanket presumptions that require detention before trial for most federal drug charges.

A 2017 Probation and Pretrial Services Office study concluded that the presumption of detention in drug cases has been an “unsuccessful attempt” to identify high-risk defendants based primarily on the charge and “has contributed to a massive increase in the federal pretrial detention rate, with all of the social and economic costs associated with high rates of incarceration.”

Federal Newswire, Durbin and Lee Introduce Bipartisan Bills Targeting Federal Drug Sentencing Reform (February 26, 2026)

S.3959, Smarter Sentencing Act

S. 3960, Smarter Pretrial Detention for Drug Charges Act

~ Thomas L. Root