Dangerousness (and More) and 922(g) Constitutionality – Update for February 14, 2025

Leave a comment

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

3RD CIRCUIT’S TROUBLING SUGGESTIONS ON 922(g)(1)

Following its en banc Range v Attorney General II decision– that the 18 USC 922(g)(1) felon-in-possession (F-I-P) statute violates the 2nd Amendment where it prohibits a person with a single disqualifying but nonviolent fraud conviction 25 years before from owning a gun – the 3d Circuit earlier this week remanded a similar case for the trial court to inquire into whether the petitioner had a history of dangerousness.

dice161221Restaurateur George Pitsilides’ hobby is high-stakes poker, an avocation that extended into sports betting and hosting illegal poker tournaments. He was convicted 25 years ago of placing sports bets with a Pennsylvania bookie – law-breaking that must seem quaint to anyone watching Eli and Peyton Manning on the Fanduel ad during the Superbowl – conduct that disqualifies him from gun possession under the F-I-P statute.

In 2019, he sued the government for the right to own a gun, arguing among other things that the F-I-P statute violated the 2nd Amendment as applied to his situation. While the case was on appeal, the Supreme Court handed down decisions in New York State Rifle & Pistol Association v. Bruen and United States v. Rahimi, cases “which effected a sea change in 2nd Amendment law,” as the 3rd Circuity put it, and required that a record be made of George’s “dangerousness.”

nickdanger220426The Circuit held that while Rahimi and Range II “did not purport to comprehensively define the metes and bounds of justifiable burdens on the 2nd Amendment right, they do, at a minimum, show that disarmament is justified as long as a felon continues to “present a special danger of misusing firearms… in other words, when he would likely pose a physical danger to others if armed.” The appellate court observed that

[a]s evidenced by our opinion in Range II, the determination that a felon does not currently present a special danger of misusing firearms may depend on more than just the nature of his prior felony…. [W]e agree with the 6th Circuit: Courts adjudicating as-applied challenges to 922(g)(1) must consider a convict’s entire criminal history and post-conviction conduct indicative of dangerousness, along with his predicate offense and the conduct giving rise to that conviction, to evaluate whether he meets the threshold for continued disarmament. As Range II illustrated, consideration of intervening conduct plays a crucial role in determining whether application of 922(g)(1) is constitutional under the 2nd Amendment… Indeed, such conduct may be highly probative of whether an individual likely poses an increased risk of “physical danger to others” if armed.

The Circuit ruled that “while bookmaking and pool selling offenses may not involve inherently violent conduct, they may nonetheless, depending on the context and circumstances, involve conduct that endangers the physical safety of others. That assessment necessarily requires individualized factual findings.”

So what is so troubling about this ruling? A couple of things. First, the Pitsilides court described the en banc Range II decision as turning on several factors, including having “lived an essentially law-abiding life since” the 25-year-old crime, had no history of violence, “had never knowingly violated 922(g)(1)’s prohibition while subject to it, posed no risk of danger to the public, and then filed a declaratory judgment action seeking authorization to bear arms prospectively.” The holding suggests that whether the F-I-P statute can constitutionally be applied to a defendant depends on him or her first seeking government permission (in the form of a declaratory ruling) before possessing a gun.

f**kdraft250214Imagine this standard being applied to free speech: A state law making the wearing clothing emblazoned with the phrase “f**ck the draft” a crime because of the exhibition of an obscene word would violate the 1st Amendment only if the wearer had not violated the unconstitutional statute to begin with and had won a judicial holding that the statute was unconstitutional before donning the offending shirt. (The shirt was the featured garb in Cohen v. California).

The second problem is with the squishiness of the term “dangerousness.” As Ohio State law professor Doug Berman aptly described the issue in his Sentencing Law and Policy blog earlier this week:

I have dozens of questions about how a “dangerousness” standard is to apply in the 2nd Amendment context, and I will flag just a few here.

For starters, there are many folks who were clearly dangerous, and were convicted of possibly dangerous crimes in their twenties, who thereafter mature and are no clearly longer dangerous years later. Do these folks have 2nd Amendment rights? More broadly, data show that women as a class are much less likely to commit violent crimes than men, so does this suggest women with criminal records are more likely to have 2nd Amendment rights than men because they are, generally speaking, less dangerous? And, procedurally, who has burden on the issue of “dangerousness” in civil and criminal cases? I assume Pitsilides will have to prove by a preponderance that he is not dangerous in this civil case that he brought, but does the Government now need to prove dangerousness beyond a reasonable doubt in every 18 USC 922(g) criminal prosecution?

The F-I-P “as applied” 2nd Amendment battle is just warming up.

Pitsilides v. Barr, Case No. 21-3320, 2025 U.S. App. LEXIS 3007 (3d Cir. Feb. 10, 2025)

Sentencing Policy and Law, Third Circuit panel states “Second Amendment’s touchstone is dangerousness” when remanding rights claim by person with multiple gambling-related offenses (February 12, 2025)

– Thomas L. Root

News Notes from President Trump’s BOP – Update for February 11, 2025

Leave a comment

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

A SHORT ROCKET FROM THE BOP

rocket190620A few news briefs from the federal prison system…

You’re Not Dead, But You May Wish You Were: Last week, new Attorney General Pam Bondi ordered the Bureau of Prisons to implement what will likely be harsher conditions for the 37 inmates whose death penalties were commuted by President Biden, ordering the agency to adjust their prison conditions so they are “consistent with the security risks those inmates present.”

Because the BOP already places inmates in facilities consistent with the “security risks those inmates present,” the order is undoubtedly a dog whistle directing the BOP to place the prisoners “in conditions consistent with the monstrosity of their crimes and the threats they pose,” the punitive language in President Trump’s Executive Order on the death penalty.

flagdetentioncamp250211Welcome, New Detainees: Government Executive reports that the BOP will be housing thousands of immigrants detained by the Homeland Security at prisons in detention centers in Miami, Philadelphia, Los Angeles, as well as at USP Atlanta, USP Leavenworth and FCI Berlin. The immigrants will be held in BOP facilities so the agency can “continue to support our law enforcement partners to fulfill the administration’s policy objectives,” Scott Taylor, an agency spokesman, said.

The Trump administration briefly held ICE detainees in federal prisons in 2018 but stopped after the American Civil Liberties Union successfully sued to force the BOP to give the detainees access to counsel and outside communications.

“Bureau employees questioned the morality and legality of their new responsibilities and said their prior experience housing detainees in Trump’s first term was a ‘disaster,’” Govt Executive reported. “Our mandate is federal pretrial or sentenced inmates,” a Miami-based CO whose facility is expecting as many as 500 detainees. “What legal jurisdiction do I have with someone [detained by] ICE?”

Another Week, Another TRO: Last week, we reported that a Massachusetts federal court had issued a temporary restraining order against the BOP’s announced plan to transfer all biological men to men’s prisons and biological women to women’s facilities. We noted that a similar suit to block the transfers had been brought by three unnamed transgender men-to-women prisoners in the US District Court for the District of Columbia.

LamberthTRO250211Judge Royce C. Lamberth (a respected and crusty jurist who has been on the federal bench since President Reagan appointed him 37 years ago) issued a temporary restraining order last week that “temporarily enjoined and restrained” the Dept of Justice” from implementing Sections 4(a) and 4(c) of Executive Order 14168, pending further Order of this Court” and required the BOP to “maintain and continue the plaintiffs’ housing status and medical care as they existed immediately prior to January 20, 2025.”

The Order said that three transgender prisoners who brought a suit to stop the order had “straightforwardly demonstrated that irreparable harm will follow” if their request for a restraining order were to be denied.

Clothes Make The Transgender Man-to-Woman: Meanwhile, a BOP policy issued early last week requiring transgender men-to-women in male prisons to hand over any female-identifying clothing and personal care products is “on hold at at least one federal prison in Texas,” according to NPR.

flipflop170920NPR had obtained a copy of a February 3 clothing policy – that a BOP employee said had been issued nationwide – directing inmates at FCI Seagoville, a low-security men’s institution near Dallas to turn in such items. But later in the week, NPR said, transgender inmates “whose clothes were taken away later learned the items would be returned” and “[m]ost had their things again as of Friday, according to [an unidentified] inmate who spoke to NPR.”

NPR said its BOP employee source reported that “prison officials are being told that clear directives on policy changes involving trans inmates will come directly” from DOJ and for now plans are “on hold.”

Politico, Pam Bondi issued a flurry of orders on Day 1 as Trump’s attorney general (February 5, 2025)

Government Executive, Federal prisons to house ICE detainees as Trump furthers immigration crackdown (February 7, 2025)

New York Times, Judge Blocks Trump Effort to Move Trans Women to Men’s Prisons (February 4, 2025)

Order, Doe v. McHenry, ECF 23, Case No. 1:25-cv-286 (DC, February 4, 2025)

NPR, ‘Everything is changing every minute’: New prison rules for trans women on hold (February 7, 2025)

– Thomas L. Root

Trump Executive Order Hints At Felon-In-Possession About Face – Update for February 10, 2025

Leave a comment

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

PRESIDENT (AND FELON) TRUMP MAY CARE ABOUT § 922(g)(1)

OK, President Trump is a convicted felon. But millions of Americans know how easy it is to end up with that label.

Because Trump is now a guy surrounded by men and women with guns but not himself allowed to touch one due to 18 USC § 922(g)(1) – the felon-in-possession statute – I have been speculating for a few months about whether his personal stake in being able to again pack his personalized “Trump .45” Glock would cause him to do something about the issue of F-I-P constitutionality.

Trumpgun250113The 3d Circuit has underscored its view that § 922(g)(1) can be unconstitutional as applied to a nonviolent felon (Range v. Attorney General) and the 6th Circuit has hinted that it feels the same (United States v. Williams). The 9th Circuit said as much in United States v. Duarte, but that holding is on en banc review and probably won’t survive. Some other circuits have gone the other way.

After New York State Rifle & Pistol Association v. Bruen and United States v. Rahimi, there’s been little doubt that the “as applied” 2nd Amendment question that swirling around the F-I-P statute will reach the Supreme Court sooner rather than later. Likewise, the Dept of Justice’s intractable opposition to any loosening of gun restrictions has been a feature of every court challenge of § 922(g), not just F-I-P but also drug user in possession, person-under-indictment in possession and domestic abuser-in-possession.

trumpglock45250210Last Friday, Trump issued an executive order that strongly hints that the DOJ will soon be changing its views. The EO directed Pam Bondi, the new Attorney General, to “examine all orders, regulations, guidance, plans, international agreements, and other actions of executive departments and agencies (agencies) to assess any ongoing infringements of the 2nd Amendment rights of our citizens and present a proposed plan of action to the President… to protect the 2nd Amendment rights of all Americans.” The EO specifically orders her to review “[t]he positions taken by the United States in any and all ongoing and potential litigation that affects or could affect the ability of Americans to exercise their 2nd Amendment rights.”

This does not mean that the DOJ will drop its opposition to any or all of the varied “prohibited person in possession” issue raised by § 922(g), even whether F-I-P is constitutional as applied to a nonviolent defendant whose convictions are a quarter century old like Bryan Range. But it is a clear signal that the next SCOTUS § 922(g) case may feature a much kinder, gentler DOJ that we’ve seen so far.

White House, Executive Order: Protecting Second Amendment Rights (February 7, 2024)

Range v. Attorney General, 124 F.4th 218 (3d Cir. 2024)

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

United States v. Duarte, 108 F.4th 786 (9th Cir. 2024)

– Thomas L. Root

US District Court Rules Guideline 1B1.13(b)(6) Exceeds Commission Authority – Update for February 7, 2025

Leave a comment

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

WHAT CONGRESS HAS ORDAINED, LET NO SENTENCING COMMISSION PUT ASUNDER

exceedsauthority250207Compassionate release took it on the chin again in the 11th Circuit this week, as a Southern District of Florida district court ruled yesterday in a lengthy opinion that the United States Sentencing Commission lacked the authority to rule that a nonretroactive change in the law could provide a basis to reduce the length of a grossly over-length sentence that was proper when imposed but would be improper under current law.

A little background: Under 18 USC § 3582(c)(1), a federal prisoner is entitled to ask the sentencing court to reduce his or her sentence. An inmate seeking such a reduction (commonly if imprecisely known as “compassionate release”) must show that “extraordinary and compelling” reasons exist for grant of the reduction. What constitutes an “extraordinary and compelling” reason is defined in the first instance by United States Sentencing Commission.

(The prisoner also must show that the reduction being sought takes into consideration (whatever that means) the sentencing factors of 18 USC § 3553(a), but we can discuss that issue another day).

When the Sentencing Commission adopted a new policy statement on sentence reduction motions 15 months ago, it provided a laundry list of circumstances that qualify in Guideline § 1B1.13(b). The most contentious item on the list is Item (b)(6), a provision that a “change in the law” can sometimes provide a basis for a reduction.

stash171031Gilberto Chineag was sentenced to life in prison after being ensnared in a “stash house sting” some 25 years ago. Two prior state drug convictions – which Gil possessed – were all that were required under 21 USC § 841(b)(1)(A) to require the court to lock Gil away for the rest of his natural life.

A quarter century later or so, Gil asked his court to reduce his sentence to time served, arguing that the First Step Act’s (FSA’s) change in § 841(b)(1)(A) left his sentence at 21 to 27 years instead of life and thus qualified under Guideline 1B1.13(b)(6) as an extraordinary and compelling reason for a sentence reduction. In a 40-page opinion issued yesterday, Judge Rodolfo Ruiz II disagreed, holding that the Sentencing Commission lacked the power to declare that a change in the law that Congress did not make retroactive could ever be an “extraordinary and compelling” reason under § 3582(c)(1)(A) for a sentence reduction.

While Congress never exactly denied the Sentencing Commission the right to rely on a change in the law as an “extraordinary and compelling” reason, it did say in the FSA that the amendments to § 841(b)(1)(A) “shall apply to any offense that was committed before the date of enactment of this Act, if a sentence for the offense has not been imposed as of such date of enactment.” Judge Ruiz reasonably read this provision as excluding application to offenses like Gil’s that had been sentenced years before the FSA was adopted.

Judge Ruiz held adoption of 1B1.13(b)(6)

exceeds the scope of the Commission’s delegated authority in allowing courts to consider expressly nonretroactive changes in law, like section 401(a) of the FSA, as ‘extraordinary and compelling reasons’ for a sentence reduction… The Court does not doubt the well-intentioned policy rationale that led the Commission to promulgate this Policy Statement. And the Court recognizes the hard work undertaken by the Commission to cabin the terms of section 1B1.13(b)(6)… A court may consider a change in law only if (1) the defendant has served at least ten years of their sentence; (2) there would be a “gross disparity” between the sentence being served and the sentence likely to be imposed after the change in law came into effect; and (3) individualized circumstances demand it. This clearly evinces a good-faith effort on the Commission’s part to narrowly tailor the class of defendants who would be eligible for a sentence reduction. But a textual good policy cannot overcome clear text. If a statute, like section 401(a) of the First Step Act, is clearly nonretroactive, it cannot be rendered retroactive by simply adding the label “extraordinary and compelling.

finalityisexplained250207The court observed that “Congress did not vitiate prior law or cast doubt on the thousands of lawful, final sentences that had been previously established pursuant to § 841(b)(1)(A),” but rather only concluded that the policy underlying high mandatory minimum sentences in to § 841(b)(1)(A) should be reduced. “The Court presumes that Congress says what it means and means what it says,” Judge Ruiz wrote, “And if Congress explicitly chooses to make a statute nonretroactive, it would be truly abnormal and extraordinary—in every sense of the word—for a court to poke around that statute to find imaginary exceptions.”

This decision is only a district court opinion, not binding on any other court. But its detail and scholarship – as well as other court’s opinions as to the efficacy of Guideline 1B1.13(b)(6) – suggest that this issue will not be settled short of the Supreme Court.

Ohio State University law professor Doug Berman, writing yesterday in his Sentencing Law and Policy blog, questioned Judge Ruiz’s conclusion that Congress did not intend that the Commission let nonretroactive sentencing law changes sometimes trigger review of a harsh sentence. He wrote that “[i]t makes perfect sentence to me that Congress would conclude, when passing major sentencing reductions in the First Step Act, that it ought not give thousands of defendants an unlimited, complete, broad legal right to retroactive sentence reductions (which in many cases might require plenary resentencings), but still would want the expert sentencing agency to set the terms of possible case-by-case sentence reductions attentive to the significant statutory changes it had just enacted.”

United States v. Chineag, Case No. 1:01-cr-607 (S.D. Fla. February 6, 2025)

Sentencing Law and Policy, Notable lengthy new district court opinion rules US Sentencing Commission lacked authority to authorize sentence reduction based in part on “changes in law” (February 6, 2025)

– Thomas L. Root

‘I Did It Before and I’ll Do It Again’ – Update for February 6,2025

Leave a comment

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

I SAY ‘TO-MA-TO,’ YOU SAY ‘TO-MAH-TO’… IT DOESN’T MATTER

The dark side of United States v. Booker – the 20-year-old Supreme Court case that held the Sentencing Guidelines must be advisory and not mandatory – is the untethering of federal district court judges to sentence as they see fit.

At first blush, that sounds like a feature and not a bug. However, a pair of cases handed down this week shows that it can lead to disparate and sometimes unreasonable results.

walmart250206

Alexander Olson, a man easily led by others, was one of eight political wackadoodles who thought that setting fire to four Walmart stores would force the company to pay employees more, feed the homeless, limit executive pay and adopt an additional slate of progressive wish-list policies.

(In fairness, my wife was tempted to torch our local Walmart yesterday over $6.00-a-dozen eggs, but no jury of Walmart shoppers would ever convict her for that).

Alex and his fellow travelers were charged with conspiracy to commit arson in violation of 18 USC § 844(n). He pled guilty, with sentencing guidelines working out to 41-51 months, and a statutory sentencing mandatory minimum of 60 months (which by law, became the minimum and maximum of Alex’s Guidelines range). But at sentencing, the judge decided an upward variance to 180 months (15 years) was appropriate, despite the fact Alex was not the ringleader and evidence showed he suffered from prior psychological abuse that made him easily led by males from whom he craved validation.

The 180-month sentence was 60 months shy of that statute’s maximum 240 months, and the judge paid lip service to the 18 USC § 3553(a) sentencing factors even while discounting the mitigating evidence that didn’t fit with the court’s worldview.

judge160222The court called the sentence of three times Alex’s Guideline range an upward variance, but later in its written explanation of reasons, referred to it as a departure.

A variance and a departure both result in a sentence outside the advisory guidelines range but reach that result in different ways. A variance occurs when a court determines that a guidelines sentence will not adequately further the purposes reflected in 18 USC § 3553(a). A departure refers to non-Guidelines sentences imposed under the framework set out in the Guidelines departure provisions set out in USSG Chapter 5K. Advance notice to the parties is generally required for a departure but not for a variance.

Significantly, the court said, “I find the advisory guidelines range is not appropriate to the facts and circumstances of this case, and the sentence here, whether an upward departure or a variance, I find appropriate.”

The 11th Circuit this week said it may have been a variance, may have been a departure, but the distinction did not matter because the district court would have imposed the same sentence regardless of which it was and the sentence – which was well below the statutory maximum – was substantively reasonable. “Under those circumstances, any error in the court’s application of a guidelines issue,” the 11th said, “including a departure issue, is harmless.”

hobbsact200218In the 7th Circuit, a different take on the same issue: Chris Easterling tried to rob a Walgreens store by pulling a gun and telling the cashier, “Let’s get this going, babe.” She was uninterested in getting whatever he had in mind going, fleeing instead. Chris couldn’t open the register himself, so he left to enjoy a few more minutes of freedom before being charged with attempted 18 USC § 1951 Hobbs Act robbery and an 18 USC § 924(c) count for using the gun (among other offenses).

Chris pled guilty, with a Guidelines advisory range of 57 to 71 months in prison for the Hobbs Act violation and a consecutive mandatory 84 months’ imprisonment, to run consecutively to the Hobbs Act sentence (for a total range of 141-155 months).

At sentencing, the court sentenced Chris to 239 months, 155 months for the Hobbs Act robbery and a consecutive 84 months for the § 924(c), a sentence 54% higher than the high end of his advisory sentencing range just one month shy of the 240-month statutory maximum sentence for Hobbs Act robbery. The court said Chris’s conduct and his “persistent and repeated history of violence” called for a “significant sentence” to protect the public.

The Supreme Court then decided in United States v. Taylor that attempted Hobbs Act robbery – which is what Chris was convicted of – could not support a § 924(c) count because it was not categorically a crime of violence. But when Chris went back for resentencing without the consecutive 84-month sentence (new sentencing range of 84-105 months), the district court again slapped the 239-month sentence on him, saying that “nothing had changed” in Chris’s history or the nature of the offense.

Chris appealed that sentence, too. While the appeal was pending, the Sentencing Commission changed its criminal history Guidelines in a way that would reduce Chris’s category by one level and drop his new sentencing range to 70-87 months. The government argued that the case should not be remanded for resentencing again, because the district court had checked a box on the Statement of Reasons form that every court must submit after a criminal sentence that says: “In the event the guideline determination(s) made in this case are found to be incorrect, the court would impose a sentence identical to that imposed in this case.”

Not good enough, the 7th said this week. “Putting aside the fact that the district court could not grapple with a Guidelines amendment that did not exist yet, this checked box is insufficient to prevent remand. We have previously held that a bare, boilerplate assertion – a conclusory comment tossed in for good measure – will not ordinarily suffice to hold a Guidelines error harmless.”

hammertime200818The Circuit ruled, “We require a district court to assure us that it would impose the same sentence again by specifically addressing the contested issue… Here, the court was unable to do so. We will not presume that a district court is so intransient that nothing the Commission does and no possible change to the Guidelines could sway its prior decision.”

United States v. Olson, Case No. 23-11939, 2025 U.S. App. LEXIS 2351 (11th Cir. Feb. 3, 2025)

United States v. Easterling, Case No. 23-1143, 2025 U.S. App. LEXIS 2376 (7th Cir. Feb. 3, 2025)

– Thomas L. Root

Biden Drug Clemencies Were Sloppy, DOJ and Courts Say – Update for February 5, 2025

Leave a comment

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

BIDEN DRUG COMMUTATIONS ANGER DOJ PARDON ATTORNEY

On his final Friday in office, President Joe Biden commuted the sentences of nearly 2,500 inmates serving lengthy prison terms, saying he wanted to return people serving disproportionately long sentences for nonviolent drug offenses to their communities.

Last Sunday, the Wall Street Journal reported that only 258 of those receiving commutations, about 10% of the total, had been recommended by Dept of Justice Pardon Attorney Elizabeth Oyer.

oyer250205Biden’s list included “individuals with violent backgrounds who otherwise wouldn’t meet the department’s standards for recommendation for receipt of clemency,” according to a January 18th internal DOJ email written by Oyer to dismayed and angry DOJ colleagues. “While I am a strong believer in the possibility of second chances through clemency, the process by which yesterday’s action was carried out was not what we had hoped and advocated for,” Oyer wrote in the email – labeled “confidential and law enforcement sensitive” – that was leaked to the Wall Street Journal. She added: “I understand that some of the clemency grants are very upsetting.”

The Journal reported that the 2,490 names were compiled by a team of about a half-dozen lawyers from the White House Counsel’s Office, offenders selected primarily because they had been sentenced for trafficking in crack cocaine rather than powder cocaine. Federal law considers one gram of crack to equal 18 grams of powder – despite the fact that the stoichiometry for conversion of powder to crack is about 1.12:1 – and that 18:1 ratio was a reduction from a 100:1 powder-to-crack ratio that existed prior to the Fair Sentencing Act being passed in 2010.

crack-coke200804The effect of the legislatively imposed ratio has been that prior to 2010, crack sentences were about two-thirds longer than powder sentences (when adjusted for other factors). The Fair Sentencing Act, while ameliorating the disparity, neither reached the 1:1 ratio some critics sought nor retroactively corrected sentences already imposed when it was passed. Not until the First Step Act was passed in 2018 was a mechanism established that permitted people serving time for crack offenses to seek retroactive application. While the Sentencing Commission has not reported how many retroactive application requests were granted, courts granted a 2014 Guidelines 2-level retroactive amendment to only about 55% of the people applying for it.

Biden wanted to make a splash on his way out of office, perhaps to help erase his history as the architect of the Violent Crime Control and Law Enforcement Act of 1994. He directed his White House team to rule out individuals at high risk for recidivism and people who had used a gun in connection with their drug crimes “or engaged in other egregious conduct including the selling of drugs near a school,” according to the Journal.

Oyer’s email said that the DOJ’s input was minimal. “This action was not carried out in consultation with the Office of the Pardon Attorney and there was little coordination with the Department,” she wrote. She said the White House included commutation for people who DOJ specifically rejected while omitting hundreds of people who DOJ recommended.

A perfect example: In a highly unusual decision from US District Court Judge Gary Brown last week, the Eastern District of New York jurist ordered one of the defendants whose sentence was commuted in the January 17th order to be brought before the court when he is released next month to have his conditions of supervised release thoroughly repeated to him.

badboy200219Carl Andrews, according to the courts that have heard his cases, was a bad dude. When brought up on the charges for which he is now doing time, Carl already had 17 prior convictions for assault, larceny, resisting arrest, criminal contempt and drug possession, In his current case, he was first charged with “sex trafficking by force, fraud or coercion” and only later had crack distribution counts added.

The Court noted that if Carl had been “convicted of the sex trafficking charges, he would have faced a fifteen-year mandatory minimum. The Government, however, was willing to accept the sentence imposed—approximately nine and a half years—in satisfaction of all charges, even though the sex trafficking charges appeared readily provable. Thus, Mr. Andrews received a sentence lower than that required by current law.”

violent160620Judge Brown’s court had found previously that Carl “used his access to crack cocaine to exploit one victim’s addiction to further profiteer from prostitution activities,” a determination that the Second Circuit upheld on appeal. Judge Brown wrote, “Additionally, the victim credibly testified that, on multiple occasions, the defendant threatened violence to ensure her continued participation in the defendant’s exploitation. Moreover, he used other coercive techniques, including, as [a] judge in the Southern District noted, ‘exploit[ing] her addiction and poverty and emotional fragility to induce her to sell her body for profit’. Thus, the charges and evidence against this defendant involved far more than non-violent drug violations.”

Judge Brown clearly found Biden’s grant of clemency to Carl inexplicable:

While history may judge the wisdom of these actions, this Court may not. However, this case, and others like it, spotlight the problems that invariably arise when a president’s unreviewable pardon authority is deployed impetuously, resulting in careless execution of the president’s directives.

In this matter—involving sex trafficking, narcotics distribution and perjury—the grant of executive clemency seems inconsistent with its purported rational[e]. This Court must abide by this action, while exercising its responsibility regarding the vestige of the sentence imposed, i.e., oversight of the defendant during a four-year period of supervised release.

*     *     *

Given this record, it is hard to classify the defendant as a “deserving individual…” Certainly, the traditionally rigorous review process would have revealed these facts, and even an abbreviated procedure would have counseled against the exercise of the former President’s pardon authority in this case—and others like it.”

angryjudge190822Judge Brown believes that “in light of the commutation of his sentence, the defendant should be reacquainted with the conditions of supervised release.” One would like to be a fly on the wall in that courtroom when Carl is hauled in front of Judge Brown next month for an ear full of what the Judge thinks of his release after fewer than five years in prison on a 9-½ year sentence.

Wall Street Journal: Biden Commutations Angered His Own Justice Department (February 2, 2025)

United States v. Andrews, Case No. 20-CR-546, 2025 U.S. Dist. LEXIS 15067 (E.D.N.Y. Jan. 28, 2025)

– Thomas L. Root

Boys Might Still Be Girls – Update for February 3, 2025

Leave a comment

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

TRANSGENDERISM ISN’T DONE GASPING

corso170112Last Thursday, I wrote the obituary for the Federal Bureau of Prisons transgender policy. As Lee Corso (whose prognostications haven’t been so hot lately, having picked Texas over Ohio State in the CFP semifinal and Notre Dame over the Buckeyes in the championship game) might correctly say, “Not so fast, my friend”).

Only a few hours after my post, a federal district court in Massachusetts unsealed a case filed the prior Sunday and issued a temporary restraining order on behalf of an unnamed transgender male-to-female inmate ordering the BOP not to move the plaintiff to a male prison or deny him access to transitioning drugs and surgery.

The plaintiff claimed the impending transfer to a men’s prison violates the 8th Amendment prohibition against cruel and unusual punishment and deprives him of transitioning healthcare in violation of the Rehabilitation Act of 1973.

At the same time, three transgender male-to-female federal prisoners sued last Thursday in Washington, D.C., to block Trump’s order. Their attorneys said they had all been placed in their facilities’ Special Housing Units (“SHUs”) in preparation for transfer to a male prison but had later been returned to general population, although they have been warned they still face imminent transfer.

angrytrump191003The complaint argues Trump’s order was driven by “hostility towards transgender people.” President Trump hostile toward a particular group of people? Hard to imagine…

In my prior post, I noted that on January 25, 2025, the BOP reported having 1,529 male prisoners claiming to be transgender females and 744 female prisoners claiming to be transgender males. Lucky I checked when I did: that information, however, was purged from the BOP website last Friday, along with any use of the g-word (gender). The BOP web page originally titled “Inmate Gender” was relabeled “Inmate Sex” on Friday.

Meanwhile, the parties in the Fleming v. Pistro litigation asked for and got more time to set out their position on whether the case was mooted by Trump’s order.  At the same time, a transgender male-to-female inmate – one Peter Langen (who now goes by the name “Donna”) – moved to intervene in the Fleming litigation. Langen complained that Rhonda Fleming

has already filed a similar case against transgender prisoners herself and by proxy. The Movant is being unduley burndened [sic] by this Plaintiff once more, it is only fair to allow the Movant a seat at the table when issues that directly impact’ her and other similarly situated Movants.

The Movant as a prisoner in the same prison system that the plaintiff was in (Plaintiff now resides in a Halfway house) and as a person who has been falsely accused of misconduct by this Plaintiff I am in a unique position to give input to this Court as a trier of the facts in this case.

denied190109The Court was not impressed, denying the motion in a terse order holding that the 11th-hour (maybe 12th hour) motion arrived after he had decided the case: The Court ruled that the “case applied only “to Ms. Fleming. Accordingly, Ms. Langan has no right to intervene. Likewise, permissive intervention is also inappropriate, especially given that this Court has already entered judgment.”

Order Following Bench Trial (ECF 176), Fleming v. Pistro, Case No. 4:21-cv-325 (January 17, 2025)

Order Denying Motion to Intervene (ECF 180), Fleming v. Pistro, Case No. 4:21-cv-325 (January 28, 2025)

White House, Defending Women from Gender Ideology and Extremism and Restoring Biological Truth to the Federal Government (January 20, 2025)

Reuters, Transgender inmate sues over Trump’s order curtailing LGBT rights (January 27, 2025)

WUSA-TV, Transgender inmates sue to block Trump order that would force move to men’s prison (January 31, 2025)

Associated Press, Health Data and Entire Web Pages are Wiped From Federal Websites (January 31, 2025)

– Thomas L. Root

Government ‘Dog Whistle’ Called Out by 1st Circuit – Update for January 31, 2025

Leave a comment

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

UNFORCED ERROR

unforcederror250131Mario Castillo, a 72-year-old grandfather, was convicted of sexually abusing his granddaughter, a federal crime because it happened in post housing at a military installation. His plea agreement with the government let the parties argue for widely divergent sentences: Mario argued that the Guidelines should result in a 78-month sentence. The government said the range was 235-293 months but agreed to ask for a sentence of 180 months.

At his first sentencing, the district court – which itself was not bound by the plea agreement to any limits – imposed a 235-month term. The 1st Circuit then vacated the sentence because of a procedural error in calculating the Guideline range.

At his resentencing, Mario began by acknowledging that the court had the authority to impose a sentence without regard for his 78-month proposal or the Government’s 180-month proposal. He argued, however, that his age, minimal risk of re-offending, and prior difficulties in prison should convince the district court to sentence him leniently.

hammer160509The government was not so constrained. Without any prompting by Mario’s anodyne sentencing arguments or questions from the district judge, repeatedly emphasized that the court had the authority to impose a harsher sentence than the 180-month recommendation that it was bound by the plea agreement to request. The government told the court, for example, that

● “We were bound by [the plea agreement], but we did not bind the court in any kind of agreement, and the court is free to sentence anywhere it wants, and the victims are free to argue for anything that they want as well.”

● “Your Honor stated [at the first sentencing] that the court had considered all of the other sentencing factors… and that neither sentence recommendation… was just… which resulted in… the sentence that you imposed at that time.”

● “This court’s sentence, whatever it is, can aptly be supported by the facts and arguments that the United States made in its sentencing memorandum filed in 2018.”

● “Your Honor is still free and legally unimpeded to sentence to whatever he wants between probation and life. That was true [at the first sentencing], it is true today.”

● “The… Court of Appeals did not… say the original 235-month sentence was an unreasonable sentence… or that it was too harsh a sentence….”

● “We are here on a procedural error that has nothing to do with the running room that Your Honor has to sentence.”

The government also repeatedly suggested that public safety required that Mario never leave prison, even though he would be deported right away to the Dominican Republic. The prosecutor said he was “very fearful for the children” in the Dominican Republic” because – regardless of his age – Mario “will sexually offend against children [because] [h]e is attracted to them, and he is going to act on his attraction whenever the opportunities appear.”

The district court heard the prosecutor’s dog whistle loud and clear, and reimposed the 235-month sentence.

dogwhistle240610Last Tuesday, the 1st Circuit vacated the sentence again, holding that the government breached its plea agreement obligations and violated Mario’s due process rights.

“In our view,” the Circuit said, “the prosecutor’s sentencing presentation constitutes a clear example of paying lip service to the plea agreement while giving a wink and nod to the imposition of a harsher sentence…” The government’s arguments, unprompted by Mario’s sentencing presentation, were an unforced error, “leav[ing] the unmistakable impression that the prosecutor wanted the district court to impose a sentence longer than 180 months…. That was not the government’s promise. This case thus presents an instance of a prosecutor reaffirming a promise to the defendant out of one side of his mouth while simultaneously trying to subvert it out of the other side.”

The government contended that it never actually endorsed a 235-month sentence. “That is true,” the 1st Circuit conceded, “but our caselaw permits a successful breach claim where a prosecutor pays mere ‘lip service’ to a plea-agreement promise… [T]he prosecutor suggested that the district court reimpose the same 235-month sentence without explicitly saying so. Thus, this is a circumstance where the prosecutor… undercut a plea agreement while paying lip service to its covenants.”

The Circuit ordered that Mario get resentenced before a different judge.

United States v. Castillo, Case No. 21-1599, 2025 U.S. App. LEXIS 1887 (1st Cir. Jan. 28, 2025)

– Thomas L. Root

Boys Won’t Be Girls – Update for January 30, 2025

Leave a comment

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

TRANSGENDERISM’S LAST GASP

lola250130Contrary to what the Kinks might have sung, girls will no longer be boys nor will boys be girls in the Federal Bureau of Prisons.

Despite policies in place that required placement of biological males in federal women’s prisons if the males identified themselves as female, Bureau of Prisons prisoner Rhonda Fleming (who is a biological female) managed to climb the litigation mountain that frustrates almost every inmate who tries to scale it: Earlier this month, she went to trial in Tallahassee, Florida, federal court over a claim that her constitutional right to bodily privacy was violated by the Federal Bureau of Prisons’ transgender policy of sending inmates equipped with male genitalia to women’s prisons.

Rhonda, who is incarcerated at the FCI Tallahassee women’s prison, argued that she and other women were compelled by the placement of biological men in their housing units to expose their unclothed bodies in shower and toilet facilities in front of the opposite sex. The BOP countered that the showers had individual stalls and curtains for privacy, but Rhonda replied that the curtains were so filthy that no one wanted to touch them.

Anyone familiar with the Dept of Justice Inspector General’s inspection of FCI Tallahassee would find Rhonda’s allegation completely believable.

No matter. After a bench trial, Northern District of Florida Chief Judge Mark E. Walker ruled that Rhonda had not proven that she had been coerced or compelled in any such way to expose herself in the shared showers or toilets at BOP facilities in which she has been housed.

The District Court conceded that

the law makes plain that prisoners have constitutional rights, including a right to bodily privacy. But the law also makes plain that the scope of those rights is limited by the realities of prison administration, and that courts must give great deference to the decisions of prison officials relating to the administration of their facilities… [A] prisoner’s constitutional right to bodily privacy is invaded only when she is coerced or compelled to expose intimate parts of her nude body by a government policy or practice, written or unwritten, or by the order, direction, or acquiescence of a government official, express or implied.

transgenderprisonwalls250130Despite what Rhonda claimed, Judge Walker held that “BOP policy and practice is to prohibit such exposure and to provide Plaintiff and other inmates with numerous means to protect their bodily privacy. In every facility Plaintiff described, she and all other inmates are required to shower, use the toilet, and change their clothes in individual stalls separated by walls and covered by curtains, and they are permitted to choose the times they shower.”

So Rhonda lost. But just for a minute, because three days after Judge Walker’s order, incoming President Trump issued an executive order giving Rhonda everything she had asked for. The order, among other things, ordered the Attorney General to “ensure that males are not detained in women’s prisons…”

As a result, Judge Walker issued a supplemental order directing the parties to file responses by tomorrow, “address[ing] whether this Court should vacate the judgment insofar as Plaintiff’s claim for declaratory and prospective relief is rendered moot given that the President has apparently revoked the policy at issue in this case.”

As of last week, the BOP reported having 1,529 male prisoners claiming to be transgender females and 744 female prisoners claiming to be transgender males. As of August 2023, 47% of male prisoners declaring themselves to be female had been convicted of sex offenses, far exceeding the next category (weapons offenses at 12%). Women claiming to be male were by far convicted of drug offenses (57%, with the next category being weapons at 15%).

prisonersart250130In January 2017, the BOP issued a policy permitting “housing by gender identity when appropriate,” considering the “inmate’s health and safety, and whether the placement would present management or security problems,” in line with the Prison Rape Elimination Act (PREA). A year and a half later, the Trump-led DOJ modified the policy to “use biological sex as the initial determination” of placement but still permitted gender identity-based placement “in rare cases” after considering other housing options and the inmate’s “progress towards transition.”

In January 2022, the Biden-era DOJ updated the BOP’s manual yet again to eliminate biological sex altogether as the initial determinant of placement in a men’s or women’s prison. Instead, the “Transgender Executive Council,” was to consider factors including the male inmate’s “security level, criminal and behavioral/ disciplinary history, current gender expression, programming, medical, and mental health needs/information, vulnerability to sexual victimization, and likelihood of perpetrating abuse.” Once placed in a woman’s prison, the prisoner would be monitored to ensure that his housing unit “does not jeopardize” his “wellbeing.”

The principal omission from the transgender calculus has always been a concern for the safety of other women prisoners. Instead, the primary concern has always been “mitigating risk” to the trans-identifying inmate.

A Free Press article argued that the risk to women prisoners was real:

transprisons250130Since the policies went into place, there have been multiple reports of sexual assault by male trans-identifying inmates toward female inmates. One woman who sued Rikers Island jail in New York in 2020, alleged that, after arriving in her cell, a male inmate introduced himself by saying, “I’m not transgender. I’m straight. I like women,” before groping and later raping her. Another female claimed she was raped in the prison shower by her six-feet-two-inches, 200-pound, bearded male attacker. In 2022, a trans-identifying male in a New Jersey women’s prison impregnated two prisoners.

Anecdotal reports I have received from women’s facilities is that the BOP is already moving biological male prisoners to all-male facilities.

Order Following Bench Trial (ECF 176), Fleming v Pistro, Case No 4:21-cv-325 (January 17, 2025)

Order for Expedited Response (ECF 178), Fleming v Pistro, Case No 4:21-cv-325 (January 24, 2025)

Defending Women from Gender Ideology and Extremism and Restoring Biological Truth to the Federal Government (January 20, 2025)

BOP, Transgender Offender Manual (January 13, 2022)

The Free Press, Biden’s Transgender Prison Policy Goes to Trial (January 13, 2025)

– Thomas L. Root

Sentencing Commission Proposes Drug Table, Meth, Supervised Release Changes – Update for January 27, 2025

Leave a comment

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

‘ICE’ MAY BE MELTING

In December, the United States Sentencing Commission announced proposed Sentencing Guidelines amendments for public comment on the sweeping if rather tedious topics of guideline simplification, criminal history, firearm offenses, circuit conflicts and retroactivity. 

drugdealer250127At the time, Sentencing Commission Chairman, Judge Carlton W. Reeves (Southern District of Mississippi) hinted that the USSC could be announcing some additional proposed amendments this month.

Last Friday, the Commission provided an upbeat end to a tough week for federal criminal justice, proposing defendant-friendly amendments to Guidelines on supervised release, the drug quantity tables, and enhanced offense levels for “ice” and pure methamphetamine.

The draft amendments, released for public comment, also propose cracking down on distribution of drugs laced with fentanyl as well as an increased enhancement for packing a machine gun during a drug crime.

The biggest surprise is a proposed change to adopt one of three options, any of which would reduce the top base offense level for drug quantity in the Guidelines. A Guidelines sentence for a drug offender is driven by the weight of the drugs attributed to him or her.  If Tom the Trafficker, with no prior convictions, was involved in a cocaine conspiracy that sold 1,000 lbs of cocaine (10 lbs. a week) over two years – even if he only sold an 8-ball a day five days a week for two years (about 4 lbs) – his Guidelines base offense level would be 38 with a sentencing range starting at 20 years in prison.

The three options the Sentencing Commission is considering would drop the levels in the drug quantity table to Level 30, 32 or 34 instead of the current 38.  At Level 30, our hypothetical Tom would be looking at an advisory sentencing range of 8 years instead of 20.

The Commission said it “has received comment over the years indicating that [Guideline] 2D1.1 overly relies on drug type and quantity as a measure of offense culpability and results in sentences greater than necessary to accomplish the purposes of sentencing.”

meth240618The second proposed amendment would essentially wipe out the drug quantity table’s 10-to-1 focus on meth purity and eliminate any enhanced penalty for crystal meth, known as “ice.” Commission data show that in the last 22 years, the offenses involving meth mixtures has remained steady while the number of offenses involving “meth (actual)” and “ice” have risen substantially. A recent Commission report found that today’s meth is “highly and uniformly pure, with an average purity of 93.2% and a median purity of 98.0%.”

In other words, if all meth is pure, applying the higher base offense level for pure meth becomes the norm rather than the exception. This is a drug-crime equivalent of the Lake Wobegon effect, humorist Garrison Keilor’s representation that in Lake Wobegon, all the children are above average.

The meth purity change could decrease Guideline base offense levels by up to 4.

A note: Judge Reeves, wearing his district court hat instead of USSC hat, wrote a thoughtful opinion two years ago in which he refused to apply the purity enhancement on the same grounds that the Commission cites now as a rationale for changing the Guidelines.

supervisedleash181107The other significant change is to supervised release, which would dramatically reduce the cases in which it is added to the end of a sentence. Among its many changes – focused on making supervised release more about rehabilitation and less about punishment – the proposed amendment would also adopt inmate-friendly standards for early termination of supervised release, making getting off supervised release after a year much easier to do.

The Sentencing Commission proposal says nothing about whether the drug quantity table reduction or meth changes – if they are adopted – would be retroactive. Retroactivity would be decided in a separate proceeding, and the USSC is in the middle of a painful re-evaluation of when and whether retroactivity should be allowed.

For now, the proposed amendments will be out for public comment until March 3, 2025, with reply comments due by March 18, 2025. The Commission will decide what it will adopt as final amendments by May 1, and those will become effective (absent Congressional veto) on November 1, 2025.

US Sentencing Commission, Proposed Amendments to the Sentencing Guidelines (Preliminary) (January 24, 2025)

– Thomas L. Root