Courts Blast Away at Constitutionality of Gun Possession Law – Update for February 6, 2023

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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.

APPEALS COURT DECLARES 18 USC § 922(g)(8) UNCONSTITUTIONAL, WHILE ELSEWHERE, DISTRICT COURT OK’S GUN-TOTING POT SMOKERS

The Supreme Court’s June 2022 New York State Rifle and Pistol Ass’n v. Bruen decision claimed another victim last week, as the 5th Circuit held that denying the right to possess guns to people subject to domestic violence protection orders violated the 2nd Amendment.

guns200304“The question presented in this case is not whether prohibiting the possession of firearms by someone subject to a domestic violence restraining order is a laudable policy goal,” the Circuit said. “The question is whether 18 U.S.C. § 922(g)(8), a specific statute that does so, is constitutional under the 2nd Amendment of the Constitution. In the light of N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen… it is not.”

Bruen held that when the 2nd Amendment’s plain text covers an individual’s conduct, “the Constitution presumptively protects that conduct.” The government must then prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.” Bruen, the 5th Circuit said, “clearly fundamentally changed our analysis of laws that implicate the Second Amendment… rendering our prior precedent obsolete.”

creditcardshooting230206Zack was a bad actor. While under a domestic protection order for stalking an ex-girlfriend, he ran amok in December 2020, shooting up houses, blasting away at bad drivers, firing at a police car, and even loosing off five rounds into the air when a credit card was declined at a Whataburger.

The government argued that the 2nd Amendment applies to only “law-abiding, responsible citizens,” neither of which Zack was. But the 5th rejected that interpretation:

Under the Government’s reading, Congress could remove “unordinary” or “irresponsible” or “nonlaw abiding” people — however expediently defined — from the scope of the Second Amendment. Could speeders be stripped of their right to keep and bear arms? Political nonconformists? People who do not recycle or drive an electric vehicle? One easily gets the point: Neither Heller nor Bruen countenances such a malleable scope of the 2nd Amendment’s protections…

The Circuit held that the government had not shown that § 922(g)(8)’s restriction of 2nd Amendment right “fits within our Nation’s historical tradition of firearm regulation… As a result, § 922(g)(8) falls outside the class of firearm regulations countenanced by the 2nd Amendment.”

gun160711Meanwhile, a Western District of Oklahoma court last Friday dismissed an indictment alleging violation of 18 U.S.C. § 922(g)(3) – prohibiting a drug abuser from possessing a gun – based on Bruen. The defendant had moved to dismiss the indictment because 18 U.S.C. § 922(g)(3) was so vague as to violate 5th Amendment due process. But in a 52-page decision that read more like a law review article than an order granting a pretrial motion, the court ignored due process and applied Bruen instead: “Because the Court concludes that 18 U.S.C. § 922(g)(3) violates Harrison’s Second Amendment right to possess a firearm, the Court declines to reach Harrison’s vagueness claim.”

United States v Rahimi, Case No 21-11001, 2023 U.S. App. LEXIS 2693 (5th Cir. Feb 2, 2023)

N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111, 213 L. Ed. 2d 387 (2022)

United States v. Harrison, Case No. CR-22-00328-PRW, 2023 U.S. Dist. LEXIS 18397 (W.D. Okla. Feb. 3, 2023)

– Thomas L. Root

7th Circuit Finds the Jurisdictional ‘Force’ Is With This One – Update for February 3, 2023

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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.

COURT DOESN’T LACK JURISDICTION JUST BECAUSE YOU MIGHT LOSE

Wolfgang Von Vader had some run-ins that resulted in a 2000 conviction in the Western District of Wisconsin for distributing methamphetamine (a Guidelines “career offender” 270-month sentence) and a 2012 federal conviction in Kansas for possessing heroin in prison (a 120-month consecutive sentence).

jurisdiction180410Wolf applied for 18 USC § 3582(c)(1)(A) compassionate release in both Kansas and Wisconsin. Both courts shot him down. The Kansas decision is currently on appeal in the 10th Circuit. In the Wisconsin case, the government argued that the court lacked jurisdiction to consider Wolf‘s compassionate release motion because he had already served all of his 2000 Wisconsin sentence, and is now on his consecutive 2012 Kansas sentence. Section 3582(c) does not authorize release from an expired sentence, the government contended, which makes Wolf’s Wisconsin compassionate release motion moot.

The district court agreed, and dismissed Wolf’s motion for lack of jurisdiction.

Last week, the 7th Circuit disagreed, reversing Wolf’s dismissal. Maybe a retroactive reduction is unauthorized by statute, the Circuit said, “but we do not see how this moots [Von Vader’s] request. If § 3582(c) does not supply authority for the relief Von Vader wants, then he loses on the merits, not for lack of jurisdiction.”

vader230203“The judge in Wisconsin could order the Bureau of Prisons to treat the Wisconsin sentence as if it had expired earlier and to reduce the time remaining on the Kansas sentence accordingly,” the 7th ruled. “Or the court in Wisconsin could make an adjustment in the length of supervised release, on the Wisconsin sentence, tht will follow the conclusion of the Kansas sentence. As long as relief is possible in principle, the fact that a given request may fail on statutory grounds does not defeat the existence of an Article III case or controversy.”

United States v. Von Vader, Case No 22-1798, 2023 U.S.App. LEXIS 1750 (7th Cir., January 24, 2023)

– Thomas L. Root

2255 Win Might Be A Pyrrhic Victory – Update for February 2, 2023

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WINNING A 2255 IS ONLY HALF OF IT

It’s not easy to win a 28 USC § 2255 motion. And if you do win, you may still have nothing coming.

pyrrhic161230Jose Peña found that out. About 13 years ago, he was convicted of three counts of murders for hire (18 USC § 1958) and two counts of using a gun to commit the two crimes of violence (18 USC § 924(c)). Joe was sentenced to five concurrent life sentences. He lost his appeal.

In 2019, the Supreme Court held in United States v. Davis that an offense could qualify as a predicate “crime of violence” for purposes of § 924(c) only if it was a felony that “had as an element the use, attempted use, or threatened use of physical force against the person or property of another.” The district court then granted Jose’s § 2255 motion, throwing out the two § 924 convictions.

But the district court refused to resentence Jose. The life sentences for his three 18 USC § 1958 murder-for-hire counts, the Court said, were not affected.  So before the § 2255 Jose was serving life.  After the § 2255, he was still serving life.

hammer160509On appeal, Jose argued that when a conviction on one or more charges is overturned and the case remanded for resentencing, the “constellation of offenses of conviction has been changed and the factual mosaic related to those offenses that the district court must consult to determine the appropriate sentence is likely altered.” In a December ruling amended last week, the 2nd Circuit disagreed.

“Section 2255’s plain text,” the Circuit said, vests a district court “with the discretion to determine first the nature of the relief that may appear appropriate.” Extending the automatic resentencing rule from the direct appeal context to grant of a § 2255 motion “would be in tension with the narrow scope of Section 2255,” the Circuit said. “At least in the context of a ‘truly interdependent sentence’ such as where a mandatory consecutive sentence affects the applicable offense level under the guidelines, the language of § 2255 provides sufficient statutory authority for a district court to exercise its jurisdiction to resentence defendants ‘as may appear appropriate.'”

United States v. Peña, 55 F.4th 367 (2d Cir. 2022) (amended January 27, 2023)

– Thomas L. Root

Biden Pulls the Plug on CARES Act – Update for January 31, 2023

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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.

CARES ACT HOME PLACEMENT TO END JUNE 10 JUST AS NEW BOP MEMO SURFACES

CARES Act To Expire:  President Joe Biden informed Congress yesterday that he will end the twin national emergencies declared by President Donald Trump 35 months ago.

pullingplug230131The end of the national emergency and the separate public health emergency will restructure federal coronavirus response, treating COVID-19 as an endemic threat to public health that can be managed through agencies’ normal authorities.

Biden’s announcement came in a statement opposing a House of Representatives resolution to be voted on later this week (H.J.Res. 7) to bring the national emergency to an end. Congress has the power to end a National Emergencies Act emergency declaration at any time by joint resolution under 50 USC § 1622(a)(1).

A similar resolution sailed through the Senate last November, suggesting that this one could have done the same, embarrassing the Administration. Biden’s announcement just about assures that the Congressional push against the national emergency will fizzle.

Among the myriad of federal responses mandated by the bloated Coronavirus Aid, Relief, and Economic Security (“CARES“) Act, a $2.2 trillion response to COVID-19 that runs some 324 pages in Volume 134 of the United States Statutes, the Bureau of Prisons was given authority to “lengthen the maximum amount of time for which the Director is authorized to place a prisoner in home confinement under the first sentence of section 3624(c)(2) of title 18, United States Code, as the Director determines appropriate.” Practically speaking, this gave the BOP the right to place prisoners on home confinement indefinitely, despite the old 18 USC 3624(c)(2) limitation of 10% of the sentence up to a maximum of six months.

home190109The BOP has placed 52,815 inmates, almost of third of its normal population, on home confinement since CARES passed. The agency has always pumped up the number by including people who would have been sent to home confinement at the conclusion of their sentence regardless of the CARES Act. Nevertheless, there are over 5,600 CARES Act home confines right now.

The CARES Act authority continues during what § 12003(a)(2) calls the “covered emergency period.” This period ends “on the date that is 30 days after the date on which the national emergency declaration terminates.” In other words, with the national emergency ending on May 11, the “covered emergency period” ends on Saturday, June 10th.

So will the BOP continue CARES Act placement until then? It makes economic sense for an agency struggling with an employee shortage, especially where inmates with low-security risk and high maintenance costs (read “costly medical care”), to unload as many prisoners as it can. The BOP’s inmate load has increased since hitting a low in 2020, even before having to absorb some 14,000 federal prisoners from private prisons after Biden ended contracting with private prison operators in his first days as president.

welcomeback181003What will become of the 5,600 on home confinement now? The Administration has taken the position that those on CARES Act home confinement will not necessarily be ordered to return to prison. The BOP, in its typical ham-handed way, issued a memorandum in December 2021 saying it intended to develop a plan to evaluate “which offenders should be returned to secure custody.” It clarified that to say it would propose rules governing the factors to be evaluated in calling people back to prison, but the proposed rules have not yet been announced.

The Dept of Justice did not help matters. Last June, DOJ issued a Notice of Proposed Rulemaking, seeking public comment on a rule that delegated authority to the BOP to decide who would return and who would not. Those rules have not yet been finalized, but you can bet that they will be soon.

New  Memo Is Released:  Meanwhile, yesterday, in response to a Freedom of Information Act request, I received the memo issued last month that gave assistant US attorneys (AUSAs) a say in some CARES Act home confinement decisions. The memo, issued December 21 (not December 19, as a BOP administrative remedy response erroneously stated), “supersedes the Home Confinement memorandum dated April 13, 2021.” I have posted a copy of the memo.

One reference to AUSA approval relates to inmates referred for CARES Act home confinement who have 5 years or more remaining on their sentences. It provides that the BOP’s Residential Reentry Management Office – which manages inmates in halfway houses and on home confinement – will contact the AUSA’s office “in the respective Court of Jurisdiction to solicit input regarding the request for Home Confinement. The input from the AUSA is to be considered among the factors used by the RRM Office in making a Home Confinement decision.”

fox230131The second is if the warden refers an inmate who does not fit the CARES Act criteria for placement. In that case, the referral is sent to the “Home Confinement Committee (HCC)… for further review.” The HCC will contact the AUSA’s office for input regarding the request, and any “input from the AUSA is to be considered among the factors used by the HCC in making a Home Confinement decision.”

Writing in Forbes last week, Walter Pavlo observed that “prosecutors have a role in court proceedings, such as when prisoners apply for compassionate release. In those instances, and based on our adversarial justice system, prosecutors rarely support compassionate release cases. However, those are court proceedings where prisoners, defendants, have an opportunity to support their position and them considered by a judge who makes a decision.”

His point is clear: the new CARES Act memo lets AUSAs dump on inmates without the prisoner knowing what was said, let alone having a chance to refute it. What is more, the BOP has issued no criterion to its staff on how to weigh what the AUSA says.

“To inject prosecutors into what is clearly a BOP decision is unfair,” a former federal prosecutor told Pavlo. “To inject the continued adversarial nature between inmates and prosecutors into what is clearly within the sole purview of a BOP decision can lead to unfair or skewed results.”

On March 26, 2020, and April 3, 2020, Attorney General William Barr set criteria for the BOP Director’s exercise of the power granted by the CARES Act to place inmates in home confinement. Pavlo points out that “nowhere in those memos does it state the role that federal prosecutors have in this process.”

AUSAs may have trouble squaring their complaints about inmates being sent to CARES Act home confinement with the government’s position in the Connecticut habeas corpus case, Tompkins v. Pullen, two months ago. There, the government argued that home confinement was nothing special and gave a prisoner no due process liberty interest.

At all times – whether on HC, at the RRC, or in secure custody… Petitioner has remained a “prisoner.” Although she was in a “community custody” status while designated to HC and supervised by the RRC, Petitioner remained a federal inmate and subject to redesignation to a secure facility if necessary to accommodate her security and programming needs… The halfway house is simply one of the facilities operated by the BOP. It is a different kind of imprisonment than maximum security, just as a supermax facility is different than a prison camp, but it is still imprisonment. The restrictions, although less than in some other facilities, remain onerous.

So CARES Act home confinement is a big deal that needs to be run past the AUSA, or it’s nothing different than any other designation decision. The BOP and AUSA may choose whichever argument is preferred at the time.CARESEnd230131

Unfortunately, it’s clear they only have to choose for the next 130 days. Then, while COVID-19 will still be with us, the CARES Act home confinement program is history.

Associated Press, President Biden to end COVID-19 emergencies on May 11 (January 31, 2023)

H.J.Res.7 Relating to a national emergency declared by the President on March 13, 2020 (January 9, 2023)

Bloomberg Law, BGOV Bill Summary: H. J. Res. 7, End Covid-19 National Emergency (January 27, 2023)

Bureau of Prisons, Home Confinement Criteria and Guidance (December  21, 2022)

Forbes, Federal Prosecutors Have Increased Role In CARES Act Home Confinement Transfers (January 24, 2023)

Attorney General, Prioritization of Home Confinement As Appropriate In Response to COVID-19 Pandemic (March 26, 2020)

Attorney General, Increasing Use of Home Confinement At Institutions Most Affected by COVID-19 (April 3, 2020)

Gvt Memo in Support, Motion to Dismiss (ECF 14-1), Tompkins v Pullen, Case 3:22-cv-00339 (DConn, filed April 13, 2022)

– Thomas L. Root

EQUAL Act Rises, Phoenix-Like, In New Congress – Update for January 30, 2023

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EQUAL ACT COMING AROUND AGAIN

People are still asking about the status of various criminal justice bills that have been pending in Congress for the past few years. So let’s review some high school government class notes…

Every Congress lasts two years, beginning in the January of an odd year and ending at the end of the next year (and even year). The last Congress was the 117th Congress since the adoption of the U.S. Constitution. The one that started on January 3, 2023, is the 118th Congress.

phoenix230130Any bill that was pending but not passed when the last Congress ended died on January 2. This included the EQUAL Act, a bill that would have equalized the penalties for crack and powder cocaine. EQUAL passed the House last session, but while declaring its support for the measure, Senate leadership (and I’m talking about Sen. Charles Schumer [D-NY], Senate majority leader) inexplicably failed to bring EQUAL to a vote.

So the EQUAL Act – like marijuana reform, 18 USC 924(c) retroactivity, expungement, and every other criminal justice issue before Congress – now must start over. No new EQUAL Act has yet been introduced in either the House or Senate, but last week, talk of crack-powder equality rose like a phoenix from the ashes of the 117th Congress. FAMM and 20 other criminal justice reform groups wrote to Senate Judiciary Committee Chairman Richard Durbin (D-IL) and the new Ranking Member of the Committee, Sen. Lindsey Graham (R-SC), urging them to have the Committee schedule a markup for the measure as soon as it is introduced (whenever that is).

The letter said

Last Congress, the EQUAL Act was one of only a few pieces of legislation to enjoy clear bipartisan support. The House of Representatives passed the bill in September 2021 with an overwhelmingly bipartisan vote of 361-66. The Senate version of the bill enjoyed the support of more than 60 senators, but never received a vote in committee or on the floor. To ensure this strong bipartisan bill reaches President Biden’s desk, we urge you and your committee to begin work on this urgent piece of legislation immediately.

Signers of the letter included criminal justice rights groups from the left and right, as well as a gallimaufry of organizations including Americans for Tax Reform, the National Association of Criminal Defense Lawyers, Association of Prosecuting Attorneys, the Major Cities Chiefs Association, and the NBA’s National Basketball Social Justice Coalition.

canoe230130

In his Sentencing Law and Policy blog, Ohio State University law professor Douglas Berman wrote last week that “notably, but not surprisingly, this letter to Congress makes no mention of the fact that… US Attorney General Garland released last month new federal charging guidelines that includ[ed] instructions to federal prosecutors to treat crack like powder cocaine at sentencing. Though these new charging guidelines do not have the legal force of statutory reform, they might readily lead members of Congress to see less urgency in advancing reform or even to be more resistan[t] to reform as we saw late last year. Fingers crossed that EQUAL can gather momentum again and actually finally eliminate the pernicious and unjustified crack/powder disparity once and for all.”

FAMM, Coalition of law enforcement, justice reform, and civil rights organizations urge Congress to pass the EQUAL Act (January 26, 2023)

FAMM, Letter to Senate Judiciary Committee Chairman (January 26, 2023)

Sentencing Law and Policy, New year and new Congress brings a new effort to advance new EQUAL Act (January 26, 2023)

– Thomas L. Root

The Short Rocket – Update for January 27, 2023

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rocket190620We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

Today, the short rocket – decisions from around the federal circuits…

SOME CASE SHORTS

Timing is Everything: In 2015, Benny Hall pled guilty to conspiracy to commit Hobbs Act robbery and using a gun in a crime of violence, (an 18 U.S.C. § 924(c) offense). After the Supreme Court decided in United States v. Davis that conspiracy to commit a crime of violence was not itself a crime of violence that supported a § 924(c) conviction for using a gun in a crime of violence, Benny filed a 28 U.S.C. §2255 post-conviction motion asking that the § 924(c) be thrown out.

corso170112The government convinced the district court that Benny’s § 924(c) conviction didn’t depend only on the conspiracy, but also on his admissions in open court that established that he had actually attempted to commit the robbery.

‘Gotcha!’ the government cried.

‘Not so fast!’ the 2nd Circuit replied last week. Last summer, the  Supreme Court ruled in United States v. Taylor that an attempted Hobbs Act robbery is not a crime of violence. The Circuit threw out § 924(c) conviction and the mandatory 10-year add-on sentence it represented.

Hall v. United States, Case No 17-1513, 2023 U.S.App. LEXIS 1256 (2d Cir., January 19, 2023)
rocket190620

11th Holds Drug Conspiracy Can’t Lead to Guidelines ‘Career Offender’: Brandon Dupree was convicted of a 21 U.S.C. § 846 drug conspiracy, and was hammered at sentencing as a Guidelines “career offender” (which dramatically increased the advisory sentencing range). An 11th Circuit panel rejected Brandon’s argument that an inchoate offense (that is, a mere plan to commit a crime) does not qualify as a “controlled substance offense” for purposes of the Guidelines ‘career offender’ enhancement.

brandon230127Last week, the full Circuit sitting en banc said, ‘Let’s go, Brandon,’ and reversed his ‘career offender’ sentence. The 11th ruled that “application of the enhancement turns on whether the ‘instant offense of conviction’ is ‘a controlled substance offense’ [under USSG] 4B1.1(a)… The plain text of 4B1.2(b) unambiguously excludes inchoate crimes. Dupree must be resentenced without application of the career offender enhancement.”

United States v. Dupree, Case No 19-13776, 2023 U.S.App. LEXIS 1183 (11th Cir., January 18, 2023)
rocket190620

Channeling Your Inner Habeas: People are always asking why they can’t point out in their 18 U.S.C. § 3582(c)(1)(A) compassionate release motions that their sentences were wrongly calculated, that their lawyers were ineffective imbeciles, that something was very wrong with how they were convicted.

reallawyer170216Mike Escajeda was convicted of selling drugs and carrying a gun. After losing his direct appeal, Mike filed a compassionate release motion, arguing that the “extraordinary and compelling reasons” required by an 18 U.S.C. § 3582(c)(1)(A) compassionate release motion were that (1) his sentence exceeded the statutory maximum and (2) he received ineffective assistance of counsel. He even admitted in his motion that he had filed for compassionate release because he figured that he could not win relief under § 2255.

Last week, the 5th Circuit ruled that the habeas-channeling rule prevented Mike from raising 2255-type issues in a compassionate release motion. The Circuit said, “Congress provided specific avenues for post-conviction relief that permit prisoners to challenge the legality of their confinement in federal court… The Supreme Court has repeatedly held that by codifying these specific provisions, Congress required prisoners to bring their legality-of-custody challenges under [28 USC 2241, 2244, 2254, and 2255], and prohibited prisoners from bringing such claims under other, more-general statutes like 42 U.S.C. § 1983.

[A] prisoner cannot use § 3582(c) to challenge the legality or the duration of his sentence,” the 5th held. “Such arguments can, and hence must, be raised under [the habeas statutes]… Because Escajeda’s claims would have been cognizable under § 2255, they are not cognizable under § 3582(c).”

United States v. Escajeda, Case No 21-50870, 2023 U.S.App. LEXIS 1041 (5th Cir., January 17, 2023)
rocket190620

DOJ SORNA Rule Blocked: The U.S. District Court for Central District of California last week issued a preliminary injunction blocking the Dept of Justice’s new Sex Offender Registration and Notification Act rule because it violated due process and the 1st Amendment.

injunction230127The rule requires people who had been convicted of a sex crime to register as sex offenders in their state, even if the sex crime convictions have been expunged and the people are not allowed by the state to register. Because plaintiff John Doe could not register, the DOJ’s rule said that he could be prosecuted at any time, and he would have been forced to prove that registration was impossible — “an affirmative defense,” Doe’s lawyer said, “that turns the presumption of innocence on its head.

The court ruled that it was likely an unconstitutional violation of due process to require anyone to affirmatively prove his innocence when he had never been convicted.

Preliminary injunction, ECF 55, Doe v. DOJ, Case No 5:22-cv-855 (CD Cal., Jan 13, 2023)

Reason, A Federal Judge Says the DOJ’s Sex Offender Registration Rules Violate Due Process by Requiring the Impossible (January 19, 2023)

– Thomas L. Root

BOP Delegates CARES Act Home Confinement Decision to Prosecutor? – Update for January 26, 2023

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BOP ISSUES STEALTH CARES ACT MEMO GIVING THE US ATTORNEY A HECKLER’S VETO

Even if the CARES Act does not expire in two months, the BOP very quietly issued a memo last month that essentially gives the Assistant U.S. Attorney (AUSA) who prosecuted a prisoner being considered for CARES Act a heckler’s veto.

heckler230126A “heckler’s veto” is a situation in which a party who disagrees with a speaker’s message can unilaterally trigger events that result in the speaker being silenced. Three weeks ago, an inmate who met all of the BOP’s standards for CARES Act home confinement (BOP, April 22, 2020, and April 13, 2021, memos) was rejected for home confinement by his local BOP Residential Reentry Management office.

In a response to his administrative remedy, the BOP told the inmate that “the memorandum for Cares Act Home Confinement was recently updated… on December 19, 2022.” Under the new memo, if the CARES Act candidate has 60 months or more remaining on his sentence, “the Residential Re-entry Management office will contact the AUSA office in the respective court of jurisdiction to solicit input regarding the request for Home Confinement. The input from the AUSA is to be considered among factors used by the RRM office in making a Home Confinement decision.”

henhouse180307The BOP has not suggested it has designated any standards for the AUSA “input.” Like a heckler’s veto, apparently the AUSA can shout down the CARES Act application without a reason, or at least without a reason that relates to the standards the BOP has already set out to qualify for CARES Act home confinement. And thus, the fox has been delegated authority to guard the henhouse.

This does pose a conundrum for the government, however.  Recall that in August, I reported on Tompkins v. Pullen, a case in which an inmate who was yanked back to prison from CARES Act home confinement argued her due process rights were violated. The government opposed the argument, of course, contending that home confinement was just another designation of an inmate to a facility under 18 USC § 3621, sort of an “FCI Home.” Home confinement was nothing special, the government argued, certainly nothing that came with due process rights.

If that’s so (and the court didn’t buy it), one has to wonder why the AUSA has been given a voice in the CARES Act decision, and why it would consider home confinement anything different than transfer from a medium to a low, hardly anything of interest to the prosecutor.

The BOP Public Affairs office declined to provide me with a copy of the memorandum. I have since requested it through a Freedom of Information Act request, for all the good that will do. Back in October 2017, I filed a BOP FOIA request for a report the BOP provided a congressional committee on pre-First Step Act compassionate release. The BOP filled the FOIA request in October 2022, just a week shy of five years after I filed it.

BOP, Home Confinement (April 13, 2021)

BOP, Home Confinement (April 22, 2020)

– Thomas L. Root

Are CARES Act’s Days Numbered? – Update for January 24, 2023

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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.

IS CARES ACT HOME CONFINEMENT ON ITS LAST LEGS?

When Congress passed the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) nearly three years ago, it included an unprecedented home confinement program for federal prisoners that let the Bureau of Prisons designate prisoners to home confinement during the COVID national emergency.

caresbear230124President Trump declared a one-year national emergency because of COVID on March 13, 2020, under authority of the 46-year-old National Emergencies Act (“NEA”). Since then, President Biden has extended it twice, the last time being Feb 18, 2022, each time for one year. Unless Biden extends it again, the COVID national emergency will expire after Feb 28, 2023.

The CARES Act lets the BOP designate inmates to home confinement without regard for the 10%/6 month limitation set out in 18 USC 3624(c)(2) during the “covered emergency period,” which CARES defines as beginning on March 13, 2020, “and ending on the date that is 30 days after the date on which the national emergency declaration terminates.” If Biden does extend the COVID emergency for another year, the CARES Act placement will end on March 30, 2023.

On Jan 11, 2023, the Dept of Health and Human Services extended the COVID-19 public health emergency through at least April 11, 2023. The public health emergency is not the same as the NEA emergency. Politico reported two weeks ago that “senior Biden officials are targeting an end to the emergency designation for Covid as soon as the spring, after debating doing so last summer and taking a pass… The decision, which has not yet been finalized amid more immediate efforts to manage a recent spike in Covid cases, would trigger a complex restructuring of major elements of the federal response…”

Walter Pavlo wrote in Forbes, “While there are other factors involved with the consideration of ending the National Emergency Declaration, prisoner’s health continues to be an issue even today. Prisoners represent a population with substantial added risk for developing COVID-19 due to multiple factors stated by the CDC, including the inability to social distance.

home210218Pavlo notes that while the federal prison population had been decreasing prior to the start of the pandemic in April 2020, despite the CARES Act, the BOP population has increased 2.5% and is now 158,844. “Many in prison are hoping that President Biden extends the Covid-19 National Emergency Declaration until at least Summer 2023 to get a better picture on the trajectory of the virus,” Pavlo wrote. “Continuing the program can only protect lives of prisoners, many of whom will be returning to society in a few years anyway.”

Writing in USA Today last Thursday, Ingrid Jacques said, “Next month, Biden will again consider whether to extend the COVID national emergency declaration that has existed since early 2020. Congress has signaled it’s ready for it to end. In November, the Senate – including 12 Democrats – passed a resolution calling for a termination of the [NEA] emergency. Now that Republicans hold the House, expect that chamber to join in.”

But the death of the NEA emergency may not be at hand. Biden has found the NEA emergency very convenient for mandating change without the need for Congress. Relying on the NEA emergency, Biden “forgave” hundreds of billions of dollars of federal student loan debt. The courts have blocked that plan, and the Supreme Court will hear the argument in early March. If the NEA emergency is not renewed, it could weaken the Administration’s case.

Plus, the Biden administration was in court last week defending its right to order masks on airplanes, buses and trains. The Dept of Justice is arguing that the administration has the authority to require masks in the name of public health.

dontcare170123Axios reported last month that lawmakers who voted to end the NEA emergency “probably aren’t focused on the programs [that would be lost] as much as making a statement that the country has returned to normal… “[The pandemic] is over. I’m going to keep voting until we get it over,” said Sen. Joe Manchin [D-WV]. “We should get back to normal lives.” Sen. Tim Kaine [D-VA] said the Biden administration didn’t provide senators with a good reason to keep it in place – only sending a memo to offices urging a “no” vote 10 minutes after the vote.

Coronavirus Aid, Relief, and Economic Security Act, Pub.L 116-136, 134 Stat 281 (March 27, 2020)

National Emergencies Act, Pub.L 94-412, 90 Stat 1255 (September 14, 1976)

Politico, Biden team eyes end of Covid emergency declaration and shift in Covid team (January 10, 2023)

Forbes, Federal Prisoners Concerned Over End Of CARES Act National Emergency Declaration (January 20, 2023)

Senate, Joint resolution relating to a national emergency (S.J.Res. 63) (November 15, 2023)

Axios, What happens when the COVID national emergency ends (December 9, 2022)

– Thomas L. Root

Will SCOTUS Grant Review to Acquitted Conduct Today? – Update for January 23, 2023

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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.

ACQUITTED CONDUCT STILL HANGING FIRE

Three weeks ago, I wrote that the Supreme Court would be deciding whether to finally take the question of whether a district court should be able to factor conduct for which a defendant was acquitted into a sentence, sort of “the jury didn’t think you did it, but I know better” approach to sentencing.

relist230123It turns out that SCOTUS now has five petitions for review before it raising the acquitted conduct issue. The principal case, McClinton v. United States, was “relisted” at the Justices’ Friday, January 6, 2023, conference for the following week’s Friday conference. On January 13, the Justices relisted the issue again for the January 20, 2023, conference. The Court will announce actions taken at the January 20th conference this morning at 9:30 Eastern time.

A “relist” occurs when the justices neither accept nor deny a petition for certiorari, but instead defer it for the next conference.

SCOTUSBlog explains that

it is almost impossible to know exactly what is happening when a particular case is relisted… One justice could be trying to pick up a fourth vote to grant review, one or more justices may want to look more closely at the case, a justice could be writing an opinion about the court’s decision to deny review, or the court could be writing an opinion to summarily reverse… the decision below.

Generally, the Supreme Court does not accept a case for review until it has been “relisted” one or more times.

Writing in his Sentencing Law and Policy blog, Ohio State University law professor Doug Berman said last week, “More often than not, relisting is a precursor to a later denial of cert, perhaps with a dissent or separate statement being authored by one or more Justices giving their take on the Court’s decision not to grant review. But relisting is also sometimes a precursor to a later granting of cert. So, as I have said before, I am hopeful, though still more than a bit pessimistic, about the possibility of 2023 being the year for SCOTUS to take up acquitted conduct sentencing.”

SCOTUSBlog, Acquitted-conduct sentencing and “offended observer” standing (January 19, 2023)

McClinton v. United States, Case No. 21-1557 (petition for certiorari pending)

Sentencing Law and Policy, US Supreme Court relists latest cases seeking review of acquitted conduct sentencing (January 17, 2023)

– Thomas L. Root

The Sentence That Was Right Then Might Not be Right Now, 4th Circuit Says – Update for January 20, 2023

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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.

CONSIDER 3553(a) IN LIGHT OF REASONS FOR COMPASSIONATE RELEASE, 4TH CIRCUIT SAYS

Back in 2008, Mike Mangarella was convicted of a massive sweepstakes fraud and was sentenced to 600 months. Twelve years later, Mike – old and sick and in the middle of a COVID pandemic – moved for compassionate release.

compassion160208The district court agreed that Mike’s COVID concerns were extraordinary and compelling reasons for a sentence reduction. But the judge was miffed that the Assistant U.S. Attorney agreed with Mike that the 18 U.S.C. § 3553(a) sentencing factors favored his compassionate release, complaining that the “government had failed to explain why – disregarding COVID-19 – the same § 3553(a) factors that originally supported a 30-year sentence now pointed to a sentence of only 14 years.” The judge told the government to “focus on the § 3553(a) factors without reference to COVID-19.”

(For those just joining us, under 18 U.S.C. § 3582(c)(1)(A), a district court considering a compassionate release sentence reduction motion must “consider[] the factors set forth in section 3553(a) to the extent that they are applicable.” Those factors are the standards a court must consider in imposing a criminal sentence, such as the history of the offender and nature of the crime, need for deterrence, what punishment is “just,” protection of the public, and so on.  It is what constitutes “considering” that is at issue here.)

tea160404After the district court’s scolding, the government read the tea leaves and quickly changed its position. The district judge then held that – even assuming that Mike’s reasons were “extraordinary and compelling” – his compassionate release motion should be denied based on the § 3553(a) sentencing factors.

Last week, the 4th Circuit vacated the decision and sent it back to the district court. The Circuit said it was not satisfied that the district court, in weighing the § 3553(a) factors, considered Mike’s “principal argument — originally joined by the government — for why those factors no longer warranted a 30-year sentence: that given his particular risk profile with respect to COVID-19, his prison sentence now carried with it a significant chance of a life-threatening illness.”

The record from Mike’s district court suggested that the judge decided that if 50 years was the right sentence in 2008, it must automatically continue to be the right sentence 14 years later. But the § 3553(a) factors in a compassionate release motion “must account not only for the circumstances at the time of the original offense but also for significant post-sentencing developments.” The Circuit specifically cited Chief Judge Gregory’s concurrence in United States v. Kibble that “there is good reason to believe that, in some cases, a sentence that was ‘sufficient but not greater than necessary’ before the coronavirus pandemic may no longer meet that criteria.”

The holding underscores that § 3553(a) sentencing factors must be considered in light of the “extraordinary and compelling” reasons for compassionate release, not in a vacuum (as many district courts have done up to now).

United States v. Mangarella, Case No 20-7912, 2023 U.S. App. LEXIS 518 (4th Cir., January 10, 2023)

– Thomas L. Root