We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
DOC ‘FEELGOOD’ HAS TO KNOW IT’S WRONG, 4TH CIRCUIT SAYS
Dr. Joel Smithers ran what the government claimed was a pill mill. The government’s witnesses painted a grim picture of the nonstop line of addicted people who drove 5-6 hours to pay Dr. Joel $300 in cash for an opioid prescription. Over the course of a few years, he wrote prescriptions for tens of thousands of doses.
At trial, Joel offered an explanation for every suspicious behavior identified by the government. — “why his patient forms didn’t indicate which pharmacy would fill their prescriptions, why he didn’t order MRIs when they were needed, why he didn’t take insurance, why he had an extremely unusual payment set-up… why he FedExed prescriptions to patients, and why he had a pre-signed prescription pad in the office… He said he believed that the prescriptions he’d written for each patient were for a legitimate medical purpose.”
The trial court refused to instruct the jury that they had to find Dr. Jerry lacked an actual belief that the prescriptions were appropriate. Joel was convicted of hundreds of 21 USC 841(a) counts and sentenced to 480 months.
While Doc Joel’s appeal was pending, the Supreme Court ruled in Ruan v. United States that when a criminal defendant is authorized to dispense controlled substances — such as a doctor who may lawfully prescribe medications — prosecutors can only win a conviction under 21 USC § 841(a) by proving beyond a reasonable doubt that the defendant intended to act or knew he or she was acting in an unauthorized manner.
Last Friday, the 4th Circuit threw out Joel’s conviction.
The government argued that, despite the Ruan decision, other instructions – such as willful blindness and “good faith” – were enough to tell the jury that it had to find that Joel knew what he was doing was wrong. The 4th rejected this, noting that the Ruancourt had rejected the same claim; Ruan noted that words like “good faith,” “objectively,” “reasonable,” or “honest effort” appear nowhere in the statute and would ‘turn a defendant’s criminal liability on the mental state of a hypothetical ‘reasonable’ doctor, rather than on the mental state of the defendant himself or herself’.”
Ruan held that “‘good faith’ is an objective test,” not the inquiry into the doctor’s actual state of mind that the statute requires. The “good faith” instruction in Joel’s case “directly contravenes Ruan,” the 4th said. “Far from helping the government, it proves Defendants point.”
Joel will get a new trial with a jury instructed that it must find that he “intended to act or knew he was acting in an unauthorized manner.”
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
BOP SEEKS TO TOUGHEN PROHIBITED ACTS LIST
There is little about prison life more arbitrary and random than inmate discipline. The offenses – like the infamous “engaging in anti-Soviet agitation” crime in communist Russia – are so general and squishy that virtually any conduct can be shaped and kneaded to fit within some offense confines.
The evidentiary standard that the prison must meet in order to find that an inmate is guilty of an offense is so low that if an inmate is charged, she is as good as convicted. The Supreme Court has declared it to be the “some evidence” standard:
This standard is met if there was some evidence from which the conclusion of the administrative tribunal could be deduced. Ascertaining whether this standard is satisfied does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence. Instead, the relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board.
Still, when the Federal Bureau of Prisons releases a proposed rule changing its list of prohibited acts, it’s a big deal. The BOP did so last Thursday, seeking public comment on a broad updating of its list of Prohibited Acts that sweepingly expands the conduct that is encompassed by some greatest severity category acts but dramatically cutting the use of disciplinary segregation.
Solitary confinement has gotten a well-deserved black eye in the last few years, and the BOP got that memo. Under the prohibited acts proposal, open for public comment until April 1, 2024, maximum first-offense disciplinary segregation would fall from a maximum of 365 days for a first 100-series violation to 60 days and 180 days to 30 days as a maximum punishment for a 200-series shot. No DS time could be assessed for a 300-series shot.
This is good. It makes the BOP look progressive and forward-thinking, exactly how an outfit that has jettisoned the expression “inmate” in favor of “Adults in Custody” ought to look. Correct. Compassionate. Fair.
However, most of the BOP’s disciplinary decisions don’t include a term in solitary as a sanction. Instead, the BOP has a whole menu of lesser punishments – including forfeiting good time, FSA credits, loss of commissary or phone or visiting privileges. The new proposal doubles down on lesser, more common penalties while looking virtuous for cutting seldom-used disciplinary segregation.
The fun doesn’t stop there. The proposal rolls out “additional examples of privileges that may be removed as a potential sanction: video visits, electronic device(s), and the use of electronic mail and messaging of any kind, including, but not limited to, through the TRULINCS system.”
The proposal expands a number of definitions of what constitutes particular prohibited acts, including
• Code 102 regarding escape will now include any unauthorized departure from the buildings, lands, property or perimeter (inside or outside) of any facility; unauthorized departure from community confinement, work detail, program or activity (whether escorted or unescorted); and unauthorized departure from any authorized location regardless of electronic monitoring devices.
• Code 108, possession of a hazardous tool – the code applied to people caught with cellphones – will now include as hazardous tools “items necessary in the use of these devices. Making these changes would allow for discipline “if telltale evidence of such items as a cellphone, electronic device, or escape paraphernalia were not found,” the BOP says, “but items which could only be used with prohibited items are found to have been used.”
• A new Code 194 is proposed, regarding unauthorized use of social media and fund transfer services. This Code would be applied “for accessing, using, or maintaining social media accounts” such as “Facebook, Twitter, Instagram, Snapchat, TikTok, etc… or directing others to establish or maintain social media accounts on the inmate’s behalf” for the purpose of committing criminal acts or any Greatest category prohibited act. This code would also prohibit inmate use of fund transfer services such as CashApp.
After the public comment period, a final version of the rule will be rolled out.
All of this matters because in text and in practice, the expansive prohibited acts definitions permit BOP employees – largely untrained in the disciplinary system – to write up inmates for conduct that seems far beyond any reasonable interpretation of the regs. In one case I worked on, an inmate became aware of a large stash of cellphones and other contraband. She had been trying to get the warden to sign off on a pending recommendation that she be sent to home confinement. When she explained to a BOP secretary that she wanted to talk to her unit manager about it, and hoped she could trade her information for the unit manager pushing the warden to sign off on her home confinement, the secretary accused her of trying to bribe a BOP employee.
The inmate was charged with Prohibited Act 216, which is described in the rules as “Giving or offering an official or staff member a bribe, or anything of value.” 28 CFR § 541.3, Table 1. Prohibited Act 216 is defined as a “high severity” offense. She got a hearing, after which the BOP hearing officer ruled that the evidence “shows you are willing to give information as long as you receive something in return. This demonstrates your willingness to bribe staff.”
The unit manager herself testified that she did not feel as though the inmate was trying to bribe her, but in the BOP, the allegation alone is usually treated as presumptive evidence of guilt. The secretary said it sounded like a bribe, so it was a bribe.
But is it bribery? The BOP thinks so.
Every defendant who cooperates with the government in hopes of getting a lesser sentence does the same thing this prisoner did, trade useful information for potential benefit. No matter. Providing information that contributed to institutional security was considered to be a bribe. The prisoner lost 21 days of good conduct time, four months of commissary, spent two months locked up in a cell awaiting disposition (this did not include any disciplinary segregation time), and was transferred to a higher-security facility. What’s worse is that the disciplinary record will be paraded in front of her judge as an argument against a sentence reduction, which will adversely affect her recidivism score.
The inmate’s habeas corpus appeal is still pending, but even if she wins and gets her 21 days back, most of the damage has been done.
The BOP already routinely punishes inmates with the Greatest category discipline for just living in a cell or cubicle where a cell phone is found, whether the inmate even knew of its presence. Expanding the sweep of already expansive Prohibited Acts will only give BOP staff greater opportunity for mischief.
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
COURTS STARTING TO REJECT DOJ’S ATTACK ON NEW COMPASSIONATE RELEASE GUIDELINE
You may remember the old Dept of Justice bait-and-switch a year ago. DOJ told the Supreme Court that it shouldn’t grant review of acquitted conduct petitions because the Sentencing Commission was going to address the issue. Then, less than a month later, DOJ filed comments telling the Sentencing Commission that it lacked the authority to address acquitted conduct at all.
The DOJ’s at it again. Before the Sentencing Commission adopted a new USSG § 1B1.13 – the compassionate release guideline that became effective last November – there was a circuit split on whether a long sentence that was mandatory before the First Step Act passed but could no longer be imposed after First Step passed could constitute an extraordinary and compelling reason for a sentence reduction.
(This difference in sentence length depending on when the sentence was imposed is called “temporal disparity”).
Six circuits said temporal disparity could never be extraordinary and compelling. Five circuits said it could. The government opposed certiorari petitions in a number of cases that asked the Supreme Court to resolve the issue. The government told SCOTUS that the issue should be addressed by the Sentencing Commission, not the Court.
Now the Sentencing Commission has addressed it, directing in § 1B1.13(b)(6) that temporal disparity can be extraordinary and compelling if the inmate has done 10 years, if there’s a great sentence disparity, and if the inmate has a good prison record.
What is the DOJ’s response to that? It has filed oppositions all around the country, arguing that the Sentencing Commission’s (b)(6) guideline exceeded its statutory authority and is invalid. As Ronald Reagan used to say to Jimmy Carter, “There you go again…”
The government’s cookie-cutter oppositions are now being decided. A late November Southern District of Indiana decision in United States v. Jackson held that 7th Circuit precedent holds that the statutory definition of ‘extraordinary’ does not extend to temporal disparity, “which means there is a question about whether the Sentencing Commission exceeded its authority when it added this item to the list of potentially extraordinary and compelling reasons warranting a sentence reduction…” But because the defendant didn’t meet the 10-year minimum sentence required for a compassionate release under (b)(6), the court did not rule on its “question.”
In United States v. Carter, an Eastern District of Pennsylvania decision from three weeks ago, the district court ruled that the 3rd Circuit’s 2021 United States v. Andrews decision, which held a change in the law could never be an extraordinary and compelling reason for compassionate release “forecloses Carter’s argument that he is eligible… 1B1.13(b)(6) states that an ‘unusually long sentence’ may be deemed an extraordinary and compelling reason’ warranting compassionate release… That provision… is incompatible with Andrews…”
Two thoughtful decisions issued last week clash with Carter’s holding and Jackson’s implication.
In United States v. Capps, an Eastern District of Missouri court rejected the government’s argument that because First Step did not make changes in 18 USC § 924(c) and 21 USC § 841(b) retroactive, the Sentencing Commission cannot do so, either. “Congress is not shy about placing sentencing modification limits where it deems them appropriate,” the Capps court said. “Congress broadly empowered and directed the Commission to issue binding guidance as to what circumstances qualify for potential reduction. Nothing in the statute’s text prohibits the Commission from considering nonretroactive changes in the law as extraordinary and compelling reasons for a sentence reduction. The absence of any such limitation is telling.”
The best repudiation of the government’s attempt to strip § 1B1.13(b)(6) of legitimacy came last Thursday. In United States v. Padgett, a Northern District of Florida district court ruled that making temporal disparity an “extraordinary and compelling” reason for compassionate release was exactly the kind of decision Congress intended the Commission to make.
“The government acknowledges that Congress directed the Commission to address the meaning of extraordinary and compelling,” the district court said. “But the government asserts the Commission went too far, because, the government says, a temporal disparity, no matter how great or how unusual, can never provide an extraordinary and compelling reason for a sentence reduction.”
The Court ruled:
The very fact that the circuits split on this issue suggests the meaning of ‘extraordinary and compelling’ is not as clear as the government now asserts. Instead, this is precisely the kind of issue Congress called on the Commission to resolve. Indeed, in United States v. Bryant… the 11th Circuit held binding the Sentencing Commission’s prior policy statement on this very issue, emphatically explaining that Congress left it to the Sentencing Commission to define ‘extraordinary and compelling,’ subject only to the requirement that rehabilitation alone is not enough. The Bryant court said relying on the Commission promotes uniformity, thus minimizes unwarranted sentence disparity, and that defining these terms is ‘not a task that the statute allocates to courts… A district court’s job is ‘simply’ to apply the Commission’s policy statements and, as required by the statute, consider the 3553(a) sentencing factors in deciding whether to reduce an eligible defendant’s sentence.
There is little doubt that the government or a defendant will fight this to the Supreme Court. For now, the proper application of the temporal disparity compassionate release guideline will be as random as it ever was before the new § 1B1.13.
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
RUMOR CONTROL 101: WHAT HAPPENS ON FEBRUARY 1? (HINT: NOTHING)
My inbox has been flooded in the last few weeks with people wondering what all will happen today, Thursday, February 1st. One said changes in the gun laws will go into effect. Another heard that the meth laws will change. Another explained that all criminal history points from prior state convictions will be dropped from Guidelines criminal history. A fourth heard that acquitted conduct will be banned for sentencing purposes.
Yesterday, a prisoner complained that people were saying that effective today, FSA credits could be used by everyone, not just low- and minimum- recidivism level inmates. At least this last guy recognized that the rumor was bullshit on stilts, and responded with appropriate disgust.
The plain and sad fact is that NONE OF THESE RUMORS IS TRUE. NONE. ZERO. NADA. ZIP.
Congress is not changing the federal firearms statutes this year. With methamphetamine and fentanyl flowing across the border being a hot campaign issue, no one’s changing those laws, either. Congress can’t even approve a federal budget or aid to Ukraine and Israel, or a plan to stop the border crisis. Passing legislation that benefits a portion of the 160,000 federal prisoners is not on anyone’s radar.
True, the Sentencing Commission is considering what – if anything – to do with acquitted conduct, but any change in the Guidelines is not likely to be retroactive and is 10 months away at least. And the Supremes may cause real upheaval in the federal gun laws when Rahimi is decided in the next five months.
But nothing will happen today.
However, tomorrow… On February 2, the Time Reduction Fairy will emerge from her den. If she sees her shadow, we’re in for another year of no criminal justice reform. The smart money, unfortunately, is that February 2 is going to be sunny.
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
ONLY THIS AND NOTHING MORE
US District Court Judge Yvonne Gonzalez Rogers (Northern District of California) told the associate warden at FCI Dublin last Friday that she’s coming to perform a short-notice inspection of the women’s prison to see how things operate.
Rogers plans to email the facility after 9:30 pm sometime in the next month to announce she will be showing up at the front gate at 5:30 the next morning. “I don’t want you to prep for it,” she told the AW. “I just want to show up.”
“’Tis some visitor entreating entrance at my prison door—
Some early visitor entreating entrance at my prison door;—
The judge will bring two of her staff and lawyers for the government and the class of sexual assault victims suing the BOP, but – according to KTVU-TV, Oakland – “but she also might shoo them away so that she can talk to anyone in the building that she wants.”
Rep Jackie Speier (D-Cal), since retired, visited the prison twice in early 2022. During her visit, Speier said, acting warden (and Deputy Regional Director) T. Ray Hinkle), tried to block her from speaking with several inmates who reported abuse and instead sent her to speak with hand-picked prisoners. Speier said Hinkle – later dismissively called sexual abuse committed by employees “an embarrassment.”
Speier said she told him: “This isn’t an embarrassment. This is a toxic work environment. It is a reprehensible set of circumstances.” Afterward, in an email to Dublin staff obtained by the AP, Hinkle alleged Speier “mistreated” prison workers and treated one employee “as though she had committed a crime.” Hinkle later was accused of retaliating against BOP employees who complained about prisoner abuse at Dublin, and he admitted to having beaten prisoners back in the 1990s. After these allegations and admissions, he was promoted.
Judge Rogers does not intend to be buffaloed like Rep Speier says she was. During her inspection of the facility, she told Dublin management, “there won’t be anything you can do other than follow me around.”
The Judge is hearing a lawsuit by the California Coalition of Women Prisons, asking the court to stop many of the harms reported at FCI Dublin, such as sexual abuse by the guards and retaliation for speaking up, and possibly appoint a “special master” over the facility to make sure reforms are being met, according to KTVU-TV.
Government attorneys representing the BOP maintain that while there used to be sex scandals at the prison, they are now part of a long-gone era because of new leadership.
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
‘YOU HAD ONE JOB’, 5TH CIRCUIT TELLS LAWYER
A trial lawyer representing a client post-sentencing can fairly be said to only have one remaining task: To consult with the client about the advantages and disadvantages of appeal and to determine whether the client wants to file appeal papers with the court.
Lucas Tighe, represented by Attorney Sharon Diaz, pleaded guilty in 2019 to conspiracy and firearms charges. The court sentenced him to a top-of-the-Guidelines 150 months in prison, a sentence made up of the statutory maximum of 120 months on two counts (run concurrently) and 30 months consecutive for the conspiracy charge. Luke was also charged in state court for organized criminal activity related to the same gun issues as in his federal conviction.
Two months after his federal sentence, Luke got 15 years on his state charges. He wrote to the federal court asking it to run his federal sentences concurrent with the state sentence, claiming that he was misled by counsel and that he never saw his presentence report. The district court construed the letter as a 28 USC § 2255 motion, but when Luke did not respond, the court dismissed it. About 5 months later, Luke sent another letter to the court asking about his appeal. He told the court that he was in state custody, his attorney had told him she was not able to help him anymore, and he never received a copy of the judgment or sentencing paperwork. The district court appointed counsel, who filed a 28 USC § 2255 motion claiming ineffective assistance of counsel because trial counsel failed to perfect an appeal.
Luke said that he had directed Diaz prior to sentencing to ask the judge about running his federal sentence concurrently to any forthcoming state sentence but counsel “blew me off.” Luke complained that Diaz told him that after he was sentenced, she would visit him at the jail later that day, but she never showed.
The district court denied the § 2255 motion, but last week, the 5th Circuit reversed. “Diaz admitted that she had not advised Luke about the advantages or disadvantages of taking an appeal,” the Circuit said. She “excused her failure to directly ask Tighe before sentencing whether he wanted to appeal by saying, ‘Well, at that point, he hadn’t been sentenced yet, so — I did not ask him at that point if he wanted to appeal’.”
But after sentencing, she failed to ask Luke whether he wanted to appeal, relying instead on whether he successfully reached out to her from prison. Diaz said that if Luke had contacted her and “expressed his desire to appeal, then she would have advised him of the potential advantages or disadvantages of appealing.”
Not good enough, the 5th ruled: “Counsel has a constitutionally imposed duty to consult with the defendant about an appeal when there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing. In making this determination, courts must take into account all the information counsel knew or should have known.”
Here, the Circuit found a rational defendant in Luke’s situation would have wanted to appeal, and Luke reasonably demonstrated that he was interested in appealing. Luke and Diaz were admittedly both shocked by the court’s stacked 150-month sentence. “Regardless of whether Diaz did or did not tell Tighe that he would not get a stacked sentence, she still expressed shock over it,” the 5th said. “It is reasonable to expect that Tighe would have that same reaction.”
Also, Attorney Diaz acknowledged that Luke wanted to ask the district court to run his federal sentence concurrent with his state sentence,” but she failed to do that. “Those are all indications that Tighe would be interested in appealing. Further, Diaz excused her failure to directly ask Tighe whether he wanted to appeal because he had not yet been sentenced. Under that same reasoning, Diaz could not have properly consulted with Tighe about an appeal prior to sentencing when she gave him his notice of right to appeal because she would not yet have known the ‘advantages and disadvantages of taking an appeal’ that she is required to counsel her client on.”
In other words, you can’t fairly tell your client that a sentence should be appealed until you know what the sentence is.
“In the absence of any self-evident reason why Tighe would not have filed a direct appeal,” the 5th said, “and without any regard to the potential merits of such an appeal, we conclude that he has established prejudice…”
United States v. Tighe, Case No. 22-50332, 2024 U.S.App. LEXIS 1758 (5th Cir. January 25, 2024)
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’60 MINUTES’ PUTS BOP DIRECTOR ON THE HOT SEAT
The American public got a primer on the Federal Bureau of Prisons last night on “60 Minutes,” and what the public saw was sobering.
BOP Director Colette Peters walked 60 Minutes reporter Cecilia Vega around FCI Aliceville. She told CBS that she wanted “people to see the good stuff” going on in the BOP. Inmates were shown in UNICOR, at a “Life Connections” graduation, and in classes. CBS did not fall for the Potemkin village.
First, in a surprisingly candid interview between Vega and five or so inmates, the women freely admitted that CBS was seeing a dog-and-pony show. Director Peters admitted that things had been cleaned up but explained, “I’ve been doing this work for a long time– so I can see when things have been swept under the rug, if you will. I’m not naïve. And when anybody comes to your house you clean it up.”
Vega pressed Peters on the issue of short staffing and augmentation, asking how many more employees are needed.
Colette Peters: So we hope to have that real number for– you and the public– very soon.
Cecilia Vega: That seems like a critical number. How was that not on your desk when you s– took this job on day one, and– and still not there a year later?
More surprising than Peters’s non-answer was her assertion that the BOP would hire the employees needed to solve short staffing by October.
Shane Fausey, the recently retired national president of the Council of Prison Locals 33 and a former BOP lock and security specialist, was much more certain. He told Vega, “We’re short about 8,000 positions nationwide. ” He complained:
The[ BOP’s] buzz phrase is, “Everybody’s a correctional officer first.” That sounds good on paper. But if you take the teacher out of the classroom, and nobody’s teaching the offender the skills to go back out to society, we’re just back to warehousing people.
Vega also focused on sexual abuse of women inmates at FCI Dublin and in other facilities, most of which Peters inherited from years of prior BOP directors who found it convenient to ignore allegations that, after all, came from untrustworthy and unworthy inmates. Peters claimed that the BOP is cleaning up the “Rape Club” culture at Dublin.
Colette Peters: We’ve done a tremendous job in the last year rebuilding that culture and creating– an institution that is more safe, where individuals feel comfortable coming forward and reporting claims
Cecilia Vega: You just used the phrase, “tremendous job” in Dublin. Eight inmates have filed a class action lawsuit, and they’ve got testimony from more than 40 current and former Dublin inmates who say that the abuse is ongoing.
Colette Peters: That means the– the process is working, that they have the ability to come forward. They have the right to bring that class action lawsuit together.
Vega noted that more than 45 women have filed suits against the BOP, some of which claim that abuse continues, and that female inmates claim continuing retaliation by staff against those who voice allegations. Peters was skeptical:
Cecilia Vega: It’s one thing for you to say that retaliation is not tolerated, but it sounds like it’s actually still happening.
Colette Peters: Again, I would say those are allegations. I would like to be more grounded in fact around proven retaliation.
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
SIX MINUTES OF BAD ADVICE COST DEFENDANT AN EXTRA 14 YEARS
Jonathan Kearn was indicted on three counts alleging he possessed some unsavory and illegal photos of his own children. He was looking at a 30-year sentence when the government threw him a lifeline: it offered him a Rule 11(c)(1)(C) plea deal with a fixed 10-year sentence in exchange for a guilty plea to just one of the three counts.
Most plea agreements specify that, while the government and defendant may anticipate the Sentencing Guidelines will recommend a sentence within a certain range, the court is not bound by their anticipations and may impose whatever sentence it believes is appropriate. Federal Rule of Criminal Procedure 11(c)(1)(C), however, lets the government and criminal defendants lock the court into a binary choice: the judge may either accept the plea deal, which comes with an agreement that the defendant will get a certain sentence (or occasionally, a sentence within a certain range) regardless of what the Sentencing Guidelines recommend or the judge prefers.
If the court doesn’t like the sentence specified in the 11(c)(1)(C), it can reject the deal, at which time the defendant can walk away from the agreement and go to trial. So-called (c)(1)(C) pleas are popular with defendants because they provide certainty – defendants either receive the sentence they agreed to or they can withdraw their plea.
Anyone familiar with the draconian sentences usually imposed in child pornography cases would see acceptance of the (c)(1)(C) offer made to Jon as a “no-brainer.” But not Jon’s lawyer. After exhaustively counseling his client about the (c)(1)(C) plea for all of six minutes, learned counsel convinced Jon to reject the offer and proceed to trial. You can guess the end: Jon was convicted on all three counts and sentenced to 24 years in prison.
Jon filed a 28 USC § 2255 post-conviction motion, arguing his lawyer was constitutionally ineffective during the plea-bargaining phase. The district court found that counsel didn’t tell Jon that if the court accepted the plea agreement, he would be guaranteed a 10-year sentence but if the court rejected the plea agreement, he could withdraw the plea. In fact, the district court found counsel failed to explain anything at all about Rule 11.
The district judge granted Jon’s § 2255 motion and let him plead to the 10-year offer. This week, the 10th Circuit upheld the decision.
Jon’s hang-up was that he did not want to stand in open court and “personally describe the facts of his offenses – which involved his daughters – before his family and friends in open court.” Under Rule 11, “[b]efore entering judgment on a guilty plea, the court must determine that there is a factual basis for the plea.” This requirement is intended to ensure the accuracy of the plea through some evidence that a defendant actually committed the offense.
But Jon’s lawyer told him that he had to do that in order to accept the plea. This advice, the Court said, was absolutely wrong. “The defendant does not have to provide the factual basis narrative,” the appeals court said. Instead, “[t]he district court may look to answers provided by counsel for the defense and government, the presentence report, or… whatever means is appropriate in a specific case – so long as the factual basis is put on the record.”
Jon’s lawyer didn’t know this. The lawyer admitted that he “regularly advised his clients that they would have to admit the facts surrounding the offense… and didn’t know if Mr. Kearn would actually receive a 10-year sentence if he pleaded guilty.”
“In the plea agreement context,” the 10th ruled, “counsel has a critical obligation… to advise the client of the advantages and disadvantages of a plea agreement… Because counsel understated the benefits and overstated the burdens of the plea offer, Mr. Kearn could not make an informed choice about whether to accept it.”
The government argued that Jon could not show that his attorney’s bad advice prejudiced him because there was no evidence Jon would have taken the deal had his lawyer properly advised him. But the Court held that Jon “lacked the requisite information to weigh the options in front of him, and whatever desire he exhibited before trial is not dispositive of what he would have done if he were properly educated about the charges against him… We cannot rationally expect defendants to theorize contemporaneously about the decisions they would make if they were receiving different advice. If courts required this kind of evidence, no defendant could show prejudice.”
The significant disparity between the 10-year sentence Jon was offered and the 24 years he got is very relevant to the prejudice analysis, the Court said. Jon “was not adequately informed that the district court would have been bound by the agreed-upon sentence. Thus, counsel improperly skewed his attention away from the sizeable sentencing disparity he faced in favor of the need for him to personally supply a factual basis… Sentencing disparity is strong evidence of a reasonable probability that a properly advised defendant would have accepted a plea offer, despite earlier protestations of innocence.”
United States v. Kearn, Case No. 23-3029, 2024 U.S. App. LEXIS 1471 (10th Cir. January 23, 2024)
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BRUEN CONTINUES TO EXPAND GUN RIGHTS
For the first time, a West Texas federal judge last month ruled that 18 USC § 922(g)(5)(A) – which prohibits aliens in the country unlawfully from possessing guns or ammo – violates the 2nd Amendment in the wake of the Supreme Court’s 2022 New York State Rifle & Pistol Ass’n v. Bruen decision. The West Texas decision, which the government has appealed to the 5th Circuit, is noteworthy, as is the judge’s lament at the outset of her opinion:
The Court pauses to join the choir of lower courts urging the Supreme Court to resolve the many unanswered questions left in Bruen’s wake… In the estimate of one legal scholar who reviewed more than 300 decisions applying Bruen, “lower courts have received Bruen’s message to supercharge the 2nd Amendment, but they have not yet located its Rosetta Stone. Their collective decisions in the months since the ruling have been scattered, unpredictable, and often internally inconsistent…” Against this backdrop of uncertainty, the Court “applie[s] Bruen as well as possible in evaluating the constitutionality of” the gun laws that Sing-Ledezma is charged with violating.
Citing Bruen, the judge deemed the law prohibiting people here illegally from possessing a gun “facially unconstitutional” and “an outlier that our ancestors would never have accepted.”
Last week, the 3rd Circuit joined in the “supercharging,” ruling that a Pennsylvania law that bans 18-to-20-year-olds from carrying guns outside their homes during a state of emergency violates the 2nd Amendment. The 3rd ruled that 18-to-20-year-olds, like other subsets of the American public, are “presumptively among ‘the people’ to whom 2nd Amendment rights extend…. The Commissioner cannot point us to a single founding-era statute imposing restrictions on the freedom of 18-to-20-year-olds to carry guns… At the time of the 2nd Amendment’s passage, or shortly thereafter, the minimum age for militia service in every state became eighteen… We understand that a reasonable debate can be had over allowing young adults to be armed, but the issue before us is a narrow one. Our question is whether the Commissioner has borne his burden of proving that evidence of founding-era regulations supports Pennsylvania’s restriction on 18-to 20-year-olds’ 2nd Amendment rights, and the answer to that is no.”
In a thoughtful law review note to be published in the next few weeks, Jamie McWilliam argues that
in the context of felon disarmament, the primary group of laws that the government has put forward involve disarming classes that the government deemed dangerous… [embodying] a broad theme of dangerousness… [T]o determine the scope of the dangerousness standard, courts should look to the principles embodied by the 2nd Amendment itself—in particular, defense against immediate personal violence. Ultimately, this essay suggests that only those who have actually created the kind of danger that the amendment was meant to protect against—i.e., who have perpetrated physical violence—should be disarmed. This standard may defend against potentially prejudicial discretion, while simultaneously upholding 2nd Amendment rights and protecting our community.
Many expect the Supreme Court to adopt such a dangerous exception to Bruen, an adoption that should advance the argument that many felon-in-possession convictions – where the dangerousness of the defendant is nonexistent – violate the 2nd Amendment.
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
BIDEN’S DISAPPEARING SUPPORT FOR CRIMINAL JUSTICE REFORM
The emails are unrelenting. When will the Second Step Act pass? What is Congress doing for people with 18 USC 924(c) convictions? Is it true they’re bringing back CARES Act home confinement? And the old favorite: How about the 65% law?
My answers have not changed: Never. Nothing. No. And ‘there’s no 65% law.’
Back when he was a candidate in 2020, President Biden staked out big, bold stances on criminal justice reform. We imagined what The Hill last week called “a ground-up reworking of the carceral state,” with all First Step Act changes in gun and drug crime law becoming retroactive, substantial marijuana decriminalization, passage of the EQUAL Act… As The Hill put it, “Biden’s vows of far-reaching reform were so numerous that the Prison Policy Initiative had to limit itself to listing only his five biggest pledges in a post-election recap. The Marshall Project called Biden’s criminal justice platform “the most progressive … of any major party candidate in generations.”
Four years later, Biden’s criminal justice reform efforts have brought forth a mouse. His grand 2020 pledges have disappeared from his website, and “a shroud of silence has fallen over Democratic offices when queried about the issue,” as BNN described it last week.
Last week, the Dept of Justice reported that Federal arrests during fiscal year 2022 were up 24% from the number in FY 2021. Immigration offenses accounted for 24% of those arrests, supervised release violations were almost as numerous at 23%, and drug trafficking offenses accounted for 21%.
It is significant that criminal justice reform people – who usually have nothing good to say about President Trump – are comparing Biden’s reform record unfavorably to Trump’s, whose First Step Act “has shown positive results, with those released under it being less likely to reoffend, demonstrating that federal criminal justice reform can be effective,” BNN said.
So what happened? The Hill says Biden’s abandonment of meaningful criminal justice reform
has been driven in large part by a wildly successful Republican messaging campaign. GOP politicians, aided by a friendly network of right-wing media outlets, have spent much of their time since 2020 selling American voters on the fiction that crime is surging. They’ve also made sure those Americans know to lay the blame on so-called “soft on crime” Democrats, whom they universally portray as eager to release dangerous felons onto the street. That messaging helped Republicans rack up wins that cost Democrats control of the House.
“The states are all still passing criminal justice reforms or fighting for them,” Crime and Justice News quoted Lorenzo Jones of the Katal Center for Equity, Health and Justice as saying. “The people doing that are all local, but those local people have been largely shut out of the national spotlight.” Burns believes that Republican presidential front-runner Donald Trump can run to Biden’s left on criminal justice reform. He urges Biden to bring together “neglected criminal justice reform groups and do[] some much-needed listening.”
Terrence Coffie, an adjunct assistant professor at New York University (and a man whose first academic achievement was getting his GED in 1993 while serving a drug trafficking sentence), said Biden could turn around his abandonment of criminal justice reform by leading an effort to repeal the Violent Crime Control and Law Enforcement Act of 1994, an “outdated and draconian piece of legislation…” that has “perpetuat[ed] harm rather than fostering justice.” Writing in Forbes last week, Walter Pavlo said Coffie “believes it is a critical step towards rectifying historical injustices and forging a more equitable path forward for marginalized communities.”
Just don’t expect any steps along that “equitable path” to be taken in 2024, with Democrats frightened of criminal justice reform and Republicans decrying a violent crime wave sweeping America.
Dr. Joel Smithers ran what the government claimed was a pill mill. The government’s witnesses painted a grim picture of the nonstop line of addicted people who drove 5-6 hours to pay Dr. Joel $300 in cash for an opioid prescription. Over the course of a few years, he wrote prescriptions for tens of thousands of doses.
The government argued that, despite the Ruan decision, other instructions – such as willful blindness and “good faith” – were enough to tell the jury that it had to find that Joel knew what he was doing was wrong. The 4th rejected this, noting that the Ruan court had rejected the same claim; Ruan noted that words like “good faith,” “objectively,” “reasonable,” or “honest effort” appear nowhere in the statute and would ‘turn a defendant’s criminal liability on the mental state of a hypothetical ‘reasonable’ doctor, rather than on the mental state of the defendant himself or herself’.”
Ruan held that “‘good faith’ is an objective test,” not the inquiry into the doctor’s actual state of mind that the statute requires. The “good faith” instruction in Joel’s case “directly contravenes Ruan,” the 4th said. “Far from helping the government, it proves Defendants point.”
