Clemency Pay-to-Play? – Update for October 30, 2025

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TRUMP CLEMENCY CIRCUS PAUSED AMID PROFITEERING CONCERNS

NBC reported last week that the White House was tightening up on clemency, just as the White House pardoned serial liar George Santos and Binance crypto executive Changpeng Zhao.

Sources told NBC News that White House chief of staff Susie Wiles, who has played a central role in reviewing pardons, became more outspoken about abuses last August after reports emerged that lobbyists and consultants were advertising themselves as offering access to Trump pardon authority for steep prices.

Those officials said Wiles pushed back hard against these efforts and tightened the process to distance it from those attempting to broker influences. While it’s legal to engage lobbyists on these issues, Wiles made it clear to those on the outside that she would not tolerate people trying to profit from the pardon process.

Reports in August by Bloomberg that two intermediaries seeking to cash in on pardons were floating a plan to another bitcoin exec to secure a presidential pardon for him in exchange for $30 million. The report set off alarms inside the White House, the two White House officials and two others familiar with the discussions told NBC News.

Some lobbyists had received proposals as high as $5 million to put clemency cases in front of Trump. Recently, an associate of former Sen. Bob Menendez, who is accused of bribing the senator with gold bars, paid $1 million to a Washington lobbyist with ties to Trump to help secure clemency.

Not that it matters that much. Trump last week pardoned Santos as a political favor to the outspoken Marjorie Taylor Greene (R-GA), who has recently turned critical of the President. The late-week pardon to Zhao acknowledged a man whose company, Binance, has also been a key supporter of the Trump family’s World Liberty Financial crypto venture, making billions.

The President said the pardon was because each man had been persecuted for political reasons.

What is pretty clear is that the President has no incentive or interest in granting pardons or commutations unless a financial or political gain is to be made. Today’s Wall Street Journal reports that as soon as Trump was elected a year ago, Zhao’s representatives began discussions with Trump allies, offering a deal for the Trump family in exchange for a pardon. Binance agreed with the Trumps’ start-up cryptocurrency venture, World Liberty Financial, that Binance could leverage into clemency for Zhao, the Journal reported, citing sources close to the transaction.

“This spring,” the Journal reports, “Binance took steps that catapulted the Trump family venture’s new stablecoin product, enhancing its credibility and pushing its market capitalization up from $127 million to over $2.1 billion.” Following that,

Trump granted Zhao a presidential pardon last week, “likely paving the way for the world’s largest crypto-trading platform to return to the U.S., from where it was banned after the company pleaded guilty in 2023 to violating anti-money-laundering rules.

While avoiding possibly fallacious post hoc, ergo propter hoc reasoning, the arrangement does leave garden-variety prisoners wondering what – other than some soups and honeybuns from next week’s commissary day – they might have to trade the Trumps for clemency.

NBC, White House tightens the clemency process as Trump resumes pardons (October 24, 2025)

Wall Street Journal, Trump Pardons Convicted Binance Founder (October 23, 2025)

Wall Street Journal, Binance Boosted Trump Family’s Crypto Company Ahead of Pardon for Its Billionaire Founder (October 30, 2025)

~ Thomas L. Root

Supremes Take on Gun Possession for Drug Abusers – Update for October 29, 2025

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SCOTUS TO DECIDE CONSTITUTIONALITY OF 18 USC 922(g)(3)

The Supreme Court decided last week to address a multi-circuit conflict over whether 18 USC § 922(g)(3) – that prevents anyone “who is an unlawful user of or addicted to any controlled substance (as defined in 21 USC § 802)” — including marijuana, which most states have legalized in some fashion — from possessing guns or ammo.

By accepting the petition for certiorari filed last June by the Dept of Justice, the high court will examine a 5th Circuit decision that allowed Texas resident Ali Hemani to possess firearms regardless of his marijuana use.

Ali, an alleged regular marijuana user, was charged with a subsection (g)(3) violation after agents searched his home and found cocaine, marijuana and a Glock 19.

The 5th Circuit found (g)(3) unconstitutional in most cases and said it could be government has urged the justices to uphold the statute because habitual drug users with firearms presented “unique dangers to society” and raised the prospect of “armed, hostile encounters with police officers.”

The case will require the justices to apply the court’s test for examining challenges to gun control measures under the 2nd Amendment flowing from New York State Rifle & Pistol Assn v. Bruen. The test requires courts to strike down such laws unless they are “consistent with the nation’s historical tradition of firearm regulation.”

The Supreme Court limited the sweep of Bruen when it found last year in United States v. Rahimi that the government could take guns away from people subject to restraining orders for domestic violence.

In its petition, DOJ noted that Ali was caught with cocaine as well as weed and that he made other incriminating statements to the cops. The government also emphasized allegations that Ali is a dual US and Pakistani citizen, had ties to the Iranian Revolutionary Guard Corps, and went to Iran to honor Iranian general Qasem Soleimani, killed by a US drone strike. The government claimed Ali’s mother was seen on video saying she hoped her sons would become martyrs for Iran.

In response, Ali called those accusations “non germane,” which, of course, they are. “The limited allegations set forth in the indictment should be the only facts before the Court,” Ali’s attorneys argued.

Focusing on the present dangerousness of drug users – and note that the statute doesn’t prevent alcohol abusers or those suffering from substance use disorder from lawfully prescribed controlled substances – could have substantial implications for the decision on 18 USC 922(g)(1) that is surely coming.

Some observers think that SCOTUS may have set up Ali Hemani to lose. “There are plenty of other cases involving more sympathetic defendants, like medical marijuana users with no criminal record or documented ties to terrorist groups,” law professor Dru Stevenson told The Reload. “If the Court just wanted to let pot smokers have guns, they could have picked one of those appeals. Instead, they picked someone caught with cocaine, who made a number of other incriminating statements to police, and who made incriminating statements in text messages legally retrieved from his phone.”

“So, while it’s extremely early to be drawing any conclusions with a high degree of certainty, The Reload said, there’s a clear path to the court making a very narrow holding applicable to Ali’s facts and no others:  “SCOTUS could easily uphold the federal drug user gun prohibition as applied only to the facts of Hemani’s case. And those facts probably don’t match the ones many other gun owners are likely to face, including those who regularly smoke weed. If the Court holds that Hemani is dangerous enough to disarm because there’s evidence he deals hard drugs and has collaborated with a foreign terrorist organization in addition to using marijuana regularly,” The Reload said, “that probably doesn’t tell us a whole lot other than that SCOTUS doesn’t believe the historical record requires people to be actively intoxicated in order to lose their gun rights–as the lower court held.”

In addition to several perfect § 922(g)(3) petitions the Court elected to overlook, the perfect § 922(g)(1) petition – Vincent v United States – is awaiting SCOTUS review. The fact that the Court has not taken the petition up in conference for two months since it was ripe for action suggests that the Court may defer action on 922(g)(1) until a (g)(3) decision is rendered.

Law360, High Court To Hear Case Asking If Drug Users Can Have Guns (October 20, 2025)

The Hill, Supreme Court to decide if drug users can carry guns (October 20, 2025)

New York Times, Supreme Court Will Weigh Gun Restrictions for Drug Users (October 20, 2025)

Vincent v. United States, Case No. 24-1155 (petition filed May 8, 2025)

The Reload, Analysis: Will the New SCOTUS Second Amendment Cases Produce Relatively Little Movement? (October 26, 2025)

~ Thomas L. Root

Front-End Loader – Update for October 28, 2025

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BOP ANNOUNCES IT WILL FRONT-LOAD FSA TIME CREDITS

The government shutdown is entering Day 28 with no end in sight. But not everything at the Bureau of Prisons has ground to a halt. Last week, the agency announced a technical change in how it calculates the end of a prisoner’s sentence that could have a major, beneficial effect on inmates.

The date of a prisoner’s release is significant to the BOP for everything from placement in an appropriate facility to eligibility for programs to the date a prisoner goes to a halfway house or home confinement under 18 USC § 3624(c) (the Second Chance Act). The BOP has always calculated what it calls the “statutory” sentence by assuming that the prisoner will earn every day of good-conduct time (54 days a year) possible under 18 USC § 3624(b).

Of course, prisoners do not always earn every day of good time. They lose it for rule infractions (something that may be epidemic with the number of cellphones in the system, where being caught with one is a high-severity prohibited act).

The fact that inmates may lose good-conduct time during their sentences has never deterred the BOP from its practice of assuming that a prisoner will earn 100% of possible good time. Nothing wrong with that: it’s a rational policy that makes release planning possible. But until now, the BOP has steadfastly refused to make the same reasonable assumption that a prisoner will earn all of the First Step Act credits (FTCs) available to him.

Last week, BOP bowed to common sense, announcing that it will now anchor its inmate management decisions to a new metric called the FSA Conditional Placement Date (FCPD), essentially front-loading FTCs in the same way it front-loads good conduct time.

Up to now, the BOP has only used a Projected Placement Date that reflected the credits earned up to the date of the PPD’s calculation, while not assuming that the prisoner would earn any FTCs after that date. The new FCPD date will assume that an inmate will continue earning FTCs every month, just like good conduct time, and will thus represent the projected point when an inmate — based on earned time credits — should be eligible for placement in halfway house or home confinement, or released. The BOP will now direct staff to use the FCPD date as the foundation for decisions about security/custody classification and facility placement.

“It’s a small technical change on paper but a major cultural shift in practice,” Walter Pavlo wrote last week in Forbes. “By using this date to guide decisions, the Bureau is effectively saying that the earned time credits aren’t just theoretical—they are the organizing principle for how and when people move through the system.”

Use of FCPDs should lead to faster inmate placement at lower custody levels and placement in programs such as the residential drug abuse program.  Pavlo said that one BOP insider estimated that over 1,500 people would be eligible to move from low-security facilities, which are near capacity, to minimum-security camps that have ample space. Additionally, reliance on FCPDs will alleviate last-minute transfers to halfway house or home confinement, which cause delays in paperwork and inmate housing arrangements. As Pavlo put it, “By focusing on the Conditional Placement Date months in advance, everyone gains time to prepare.

The FCPD change should ensure that FTCs have real meaning, connecting prisoner success to the date on an inmate’s worksheet for prerelease planning. “This change reflects our continued commitment to managing the inmate population in a way that is both fair and consistent with the law,” said Rick Stover, Special Assistant to the Director. “By using Conditional Placement Dates, we are improving operational efficiency, supporting our staff, and honoring the intent of the First Step Act.”

Rabbi Moshe Margaretten, President of the prison-reform advocate Tzedek Association, called the development a “truly monumental” moment for prison reform. “This reform will change thousands of lives—allowing men and women who have worked hard to better themselves to move into lower-security settings and reconnect with their families much earlier.” 

BOP, A Win for Staff and Prison Reform (October 21, 2025)

Forbes, Bureau Of Prisons Makes Changes To First Step Act Calc (October 21, 2025)

Belaaz, Major Bureau of Prisons Reform After Years of Advocacy by Tzedek, ‘Monumental Step’ (October 21, 2025)

 

~ Thomas L. Root

You Should Have Told Me That… Update for October 24, 2025

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

IT WASN’T BRAIN SURGERY…

Nita Patel operated companies offering mobile diagnostic test services at a physician’s office. To pay for the services, Medicare required a licensed physician on staff to sign off on the tests.

When applying to Medicare for approval to do one kind of neurologic diagnostic testing, Nita’s husband falsely represented that a licensed neurologist would supervise the tests. Based on the representation, Medicare approved the companies as providers of the specialized test. The companies started testing with one of the owners – who was not a licensed doctor – forging a physician’s signature on the tests.

The companies made over $4 million from the scheme.

People who pull such scams shouldn’t. If they do, they should keep their employees happy. A disgruntled Patel worker lodged a qui tam claim against the companies (a civil action in which, if the government wins a judgment, the person bringing the action gets a monetary reward).

The government looked at the claim and smelled a rat. It then indicted the Patels. A day after the husband and wife pled guilty in 2016, the Government took over the qui tam action from the employee, asserting a False Claims Act cause of action. 

There’s a problem with guilty pleas beyond the obvious prison, fines, forfeitures and reputational harm. Such a plea can be used against the defendant in a civil action. The Patels’ guilty pleas pretty much made their liability in the qui tam action ‘game, set and match.’

Nita filed a 28 USC § 2255 motion, claiming her lawyer rendered ineffective assistance because he never told her that her guilty plea could be used against her in a False Claims Act lawsuit. Comparing her case to Padilla v. Kentucky –  a 2009 Supreme Court decision holding that defense attorneys have a duty to advise their defendant-clients of the immigration consequences of a guilty plea – Nita argued that counsel had a duty to advise her of all collateral consequences of pleading guilty, including the risk of civil liability.

C’mon, people. The notion that if you rip off the government, you might be forced to pay the government back is not such a hard idea to wrap your head around. Likewise, if you swear under oath that you committed a crime in doing so – necessary if you’re pleading guilty – you shouldn’t be shocked if another court relies on that admission.

Last week, the 3rd Circuit ruled against her.

The 3rd held that even though Nita had finished her prison sentence and supervised release term, she still met § 2255’s “in custody” requirement for bringing a motion because she faced substantial collateral civil consequences from her conviction.

That hardly mattered, however, because the Circuit held that Padilla does not address whether the “distinction between direct and collateral consequences [should] define the scope of constitutionally ‘reasonable professional assistance’ required under Strickland.” Rather, deportation stands alone among non-criminal consequences requiring proper attorney advice as a matter of the 6th Amendment.

It probably would have been a good idea for defense counsel to talk about civil liability flowing from admitting criminal guilt to a $4 million scam.  But counsel’s failure to do so was not ineffective assistance under the 6thAmendment.

Patel v. United States, Case No. 23-2418, 2025 U.S. App. LEXIS 27085 (3d Cir. October 17, 2025)

~ Thomas L. Root

‘All Work And No Pay’ For BOP Employees – October 23, 2025

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LISAStatHeader2small.jpg

‘WELCOME TO OUR WORLD,’ BOP EMPLOYEES COULD GREET COURT WORKERS

A Columbia, South Carolina, newspaper spotlighted the state of Federal Bureau of Prisons employees since the shutdown, and the picture was not a pretty one: “As essential workers, employees at federal prisons are still required to show up every day. But with funding frozen due to the government shutdown, employees are facing an uncertain future. With no immediate end in sight for the shutdown, the paycheck they received last week might be the last one they see for a while. ‘Morale is very low,’ said Talmadge Coleman, who recently retired from FCI Edgefield and is president of the Local 0510 at the prison. Staff were ‘very disgruntled’ at the situation…”

The State reported that “many staff members were already living paycheck to paycheck” and last week got only a partial salary check covering time through September 30th. “With the shutdown, that will leave many of these employees who guard federal prisoners unable to pay their mortgages, make car payments or even afford groceries or the gas to get to work. Many staff members are single moms, people looking after their parents and juggling medical bills and the rising cost of living, Coleman said. ‘Creditors don’t want to hear it,’ Coleman said.”

One correctional officer told a Texas TV station that BOP employees are “looking at, ‘OK, I can make it through this month. But if it hits November 1st and we’re not getting paid…’”

President Trump has directed through executive orders that the BOP and other agencies no longer honor the collective bargaining agreements between the agencies and about a half million workers. “The agency doesn’t recognize us anymore, so that’s one less thing that we can help with,” said Brandy Moore White, president of Council of Prison Locals 33, a union that represents federal prison employees. “It’s just disaster upon disaster.”

During the 2019 shutdown, the BOP gave employees a letter that they could show to creditors explaining the situation. This time, the agency has provided no such letter.

The BOP issued an automated response to a media request asking for comment on the shutdown: “Due to the lapse in appropriations, the Office of Public Affairs is not available to respond.”

The State, Federal prisons in SC were already struggling. Then the government shut down (October 14, 2025)

KXXV-TV, Federal prison officers working without pay as shutdown reaches day 6 (October 16, 2025)

 

~ Thomas L. Root

6th Extends Section 404 Reduction to Sentence Packages – Update for October 21, 2025

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A “PACKAGE” DEAL

“Best Friends” sounds like a warm and cuddly name for a gang, more like a gaggle of 6-year-old girls back in the 1980s swapping Cabbage Patch Kids. But the 1980s and 1990s Motor City’s “Best Friends” gang was a little more into drug distribution, for-hire murders and drive-by shootings than ugly-faced little dolls with birth certificates.

In 1995, four of the principals were convicted of conspiracy to distribute crack cocaine, possession of crack, and several counts of intentional killing in furtherance of a continuing criminal enterprise in violation of 21 USC § 848(e)(1)(A), with a few 18 USC § 924(c) use-of-gun counts tossed in for good measure. The four besties were all convicted and received life sentences.

After the First Step Act was passed, the four filed for sentence reductions under Section 404, which allowed for retroactive application of the Fair Sentencing Act’s reduction in statutory punishments for crack cocaine offenses. After a tortuous trek through the district court to the court of appeals and back again, the U.S. District Court for the Eastern District of Michigan deemed the four amigos eligible for a Section 404 reduction. After a 2022 hearing, the district court reduced their sentences for the drug conspiracy and homicide convictions from life imprisonment to various terms of years.

The government appealed, and last week, the 6th Circuit reversed and remanded.The Circuit rejected the District Court’s interpretation of Section 404 that would allow unlimited resentencing authority for any offense if a covered offense happened to also present. The 6th concluded that such a reading of the section did not align with the First Step Act’s purpose of resentencing “as if sections 2 and 3 of the Fair Sentencing Act were in effect.”

After all, the 6th reasoned, even if the Fair Sentencing Act had been in force when the four best friends were sentenced in 1998, the homicide life sentences under § 848(e) would still have been permitted independent of the crack possession and conspiracy convictions.

The “sentencing package doctrine” recognizes that sentencing multiple counts is an inherently interrelated, interconnected, and holistic process, and that when an appellate court vacates a sentence and remands for resentencing, the sentence becomes void in its entirety and the district court is free to revisit any rulings it made at the initial sentencing. In this case, the 6th held that when sentences are interdependent or form a ‘package,’ modifying one sentence may require reconsideration of the entire sentencing scheme to maintain the court’s original sentencing intent. Finding that the ‘sentencing package‘ doctrine is consistent with First Step Section 404’s text and context, the Circuit vacated everyone’s resentencings and remanded for the District Court to determine whether each defendant’s homicide sentence was part of a ‘sentencing package’ with the covered crack drug offense.

The holding aligns with decisions by the 4th and 7th Circuits.

United States v. Dale, Case No. 23-1050, 2025 U.S. App. LEXIS 26682 (6th Cir. October 14, 2025)

~ Thomas L. Root

Federal Courts Are Closing (Sort Of) – Update for October 20, 2025

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CLOSED FOR REMODELING

Usually, when you see a hand-scrawled sign on a restaurant door that the place is “closed for remodeling,” the between-the-lines message is that the place is out of business until the next unlucky owner can be fleeced.

President Trump’s government closed on October 1st because the Democrats refuse to sign on to a continuing resolution keeping the Feds funded unless healthcare cuts are restored. When that happened, the federal courts announced that they had enough money in the coffers to keep operating at least until October 17th.

Last Friday, the “Closed for Remodeling” signs went up.

Unlike executive branch federal agencies, the federal courts been able to sustain paid operations for a few weeks after the shutdown by using fees and other funds courts have collected that are not dependent on Congress. But tight budgets in recent years meant the courts entered this shutdown with less money in the bank than they had during the 35-day 2019 shutdown, during which the courts sustained paid operations for whole length of the impasse.

A few weeks ago, Administrative Office of United States Courts estimated that court funding would be exhausted by last Friday. And, as forecast, it was.

The AOUSC – the central support agency for courts providing a wide range of legislative programs, budgeting and administrative support services – announced late last Friday that beginning on Monday, Oct 20, it will no longer have funding to sustain full operations, and until the shutdown ends, federal courts will maintain limited operations necessary to “perform the Judiciary’s constitutional functions.” 

This followed an internal memorandum circulated the day before explaining that “If Congress does not pass and the President sign into law legislation funding the Judiciary’s operations, we will enter Phase 2 of this lapse in appropriations beginning Monday, October 20, 2025… During the morning of October 20, furlough notices will be distributed, and orderly shutdown activities will commence.”

Federal judges will continue to be federal judges – nothing can change that – but clerks’ offices and court staff “may only perform certain excepted activities permitted under the Anti-Deficiency Act.” The ADA prohibits the government from entering into any contract – including paying employees to work – that is not “fully funded,” because doing so would obligate the government in the absence of an appropriation adequate to the needs of the contract.

The AOUSC said that “excepted activities” include work necessary to perform Article III constitutional functions, activities necessary for the safety of human life and protection of property, and activities otherwise authorized by federal law. Employees will be expected to perform such duties “without pay during the funding lapse. Staff members not performing excepted work will be placed on furlough.”

Each appellate and district court is expected to make its own decisions on how to manage its cases and probation/pretrial supervision services during the shutdown. Each court and federal defender’s office will determine how it will find the resources needed to support the work the court deems essential.

AOUSC’s message to courts seems to be ‘you’re on your own.’

PACER, which is more than amply funded by user fees, will continue to be operated.

The Supreme Court announced that it, too, will be furloughing staff and be closing the building to public tours. SCOTUS “expects to run out of funding on October 18,” Patricia McCabe, Supreme Court public information officer, told The Hill last week. “As a result, the Supreme Court Building will be closed to the public until further notice… The Supreme Court will continue to conduct essential work such as hearing oral arguments, issuing orders and opinions, processing case filings, and providing building support needed for those operations.”

Sounds like business as usual at SCOTUS.

As for what individual courts will do during the shutdown, expect those announcements during this coming week.

AOUSC, Judiciary Funding Runs Out; Only Limited Operations to Continue (October 17, 2025)

AOUSC, Guidance For Judiciary Operations During Phase 2 Of The Lapse In Appropriations  (October 16, 2025)

Reuters, US courts set to run out of money, begin furloughs as shutdown lingers (October 17, 2025)

The Hill, Supreme Court to run out of funding due to shutdown (October 17, 2025)

~ Thomas L. Root

Jailer Trump Sends Former Death Row Prisones to Supermax – Update for October 17, 2025

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PRESIDENT TRUMP MAKES BOP DESIGNATION DECISIONS

Among the last clemencies made by President Biden before leaving office were his commuting the sentences of 37 BOP death row inmates to life. Hours later, newly installed President Trump ordered that the life sentences of these men be made into what the Wall Street Journal called “a living hell.”

Based on the order Trump had Attorney General Pam Bondi issue, the BOP officials canceled plans to transfer most of the inmates to mainline prisons. Instead, Acting Deputy Attorney General Emil Bove III executed Bondi’s order, directing that all but a few prisoners requiring medical facilities be designated to ADMAX Florence, which the Wall Street Journal called “the harshest institution in the federal system.”

The Journal said that Aaron Reitz, then an assistant attorney general, led a roundtable with the families and said he was disappointed that the cells “have windows to see daylight.” He suggested that prison food was too good for these men. “I’ve got no problem with gruel.” he said. “If made right, it’s a nutritious all-in-one meal.” Later in an interview, Reitz said, “If you’re not going to be killed lawfully at the hands of the state, well, your prison sentence is going to be hard as hell.” 

The Journal reported that “while the president’s authority to grant clemency for federal crimes is virtually unfettered, the power to impose vengeance via prison assignments isn’t clear.”

Attorney General Pam Bondi said Trump wanted to “ensure that they spend the remainder of their lives in conditions consistent with the egregious crimes they committed.” David Fathi, director of the National Prison Project at the ACLU, which represents 21 of the inmates, said that none of the prisoners qualified for ADX placement under the BOP’s Program Statement 5100.08, Inmate Security Designation and Custody Classification Manual. ‘None of our plaintiffs were designated for ADX,” he said. “Under Attorney General Bondi, all of our plaintiffs have been slated for ADX, not because of a security risk but to inflict maximum suffering.”

“People should be very concerned about the president and attorney general’s disregard for the law in this case,” Fathi said. “Today, it may be people who are very unpopular. Tomorrow, it could be anybody.”

Wall Street Journal, Biden Spared 37 Killers From Execution. Trump Ordered Up a Lifetime of Torment (October 11, 2025)

Bureau of Prisons Program Statement 5100.08 CN-2, Inmate Security Designation and Custody Classification Manual (March 5, 2025)

~ Thomas L. Root

Sometimes You Can Speak For Yourself, 6th Circuit Says – Update for October 16, 2025

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CATCH-22

When Derek Riley pled guilty in 2016 to conspiracy to distribute controlled substances, his Guidelines Criminal History Category was III yielded an advisory sentencing range of 135 to 168 months. The district court sentenced him to 160 months.

In 2023, Amendment 821 to the Sentencing Guidelines retroactively lowered some criminal history points, including Derek’s. His new Guideline sentencing range was 121 to 151 months. A public defender representing him in the resentencing stipulated with the government to a 144-month sentence, which the court imposed.

Derek was not happy with the new sentence and filed a document he wrote himself called a “Motion for Reconsideration.” In it, he stated that his attorney had agreed to the stipulation as to his sentence without his knowledge or consent and that, therefore, the district court should reconsider and entertain the arguments he wanted to make in favor of a “time-served” sentence. The district court denied the motion on the grounds that Derek had a lawyer and thus was not allowed to file pro se motions under the policy prohibiting “hybrid” representation. The court told Derek that if he wanted to file a motion for reconsideration claiming that his lawyer had gone off the reservation, he should have his lawyer file it for him.

Joseph Heller’s “Catch-22” was this: If a World War II bomber airman wanted to avoid flying combat missions over Europe by claiming he was insane, he had to apply for the exemption. But the combat missions were so dangerous – only 25 pct of aircrews survived the 25 missions they were to fly before being relieved – that claim madness to get out of combat was interpreted as proof of sanity, so the application would be denied. “Catch-22” now describes a paradoxical situation from which there is no escape.

Thinking that the court’s instruction that only his lawyer could file a motion claiming his lawyer had agreed to something without his client’s approval veered very close to being a “Catch-22,” Derek filed a pro se notice of appeal.

Last week, the 6th Circuit agreed with Derek. The Circuit acknowledged that the rule against hybrid representation was a good one, because usually, whether to file certain motions and what to say in those motions are decisions for counsel, not the defendant.

“But cases like this one,” the 6th held, “present a materially different landscape. Here, the court was not simply presented with a disagreement over strategic choices made by the attorney nor an instance of nonspecific dissatisfaction. Instead, the court was faced with the defendant’s specific allegation that his counsel made a decision affecting the overarching aims of the representation without his knowledge or assent. A defendant must be permitted to make important decisions as to the direction of his case regardless of whether he is represented. A lawyer may not override a defendant’s decision to accept or reject a plea offer or disposition offered by the government because ‘decisions regarding the exercise or waiver of basic trial rights are of such moment that they cannot be made for the defendant by a surrogate…’ Where a defendant alleges conduct that amounts to such a violation, his allegations, if true, point to a breakdown in proper representation. His dissatisfaction and disagreement with his counsel should, therefore, be an apparent and pressing concern, triggering the district court’s obligation to investigate.”

The Circuit observed that the “clear thrust of the motion was that Riley wanted to proceed pro se because his counsel had agreed to a specific disposition of his § 3582 motion (a revised sentence of 144 months) without his consent. The district court then had an obligation to address that allegation directly in deciding Riley’s pro se motion.”

United States v. Riley, Case No. 24-1287, 2025 U.S.App. LEXIS 26350 (6th Cir. October 9, 2025)

~ Thomas L. Root

SCOTUS Will Decide When a Waiver Has Been Waived  – Update for October 14, 2025

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WAVING GOODBYE TO WAIVER CONFUSION?

The Supreme Court last Friday granted review to a federal criminal case asking whether a plea agreement appeal waiver binds a defendant where the judge advised him that he had the right to appeal.

Munson Hunter pled guilty to aiding and abetting wire fraud. He signed a plea agreement that, among other things, provided that he was giving up his right to appeal.

At sentencing, a the judge imposed a mental health condition over the defendant’s objection and then told the defendant, “You have a right to appeal.”

Munson appealed the mental health condition to the 5th Circuit, which – pointing to his appeal waiver – dismissed the appeal.

SCOTUS will address two issues:

Whether the only permissible exceptions to a general appeal waiver are for claims of ineffective assistance of counsel or that the sentence exceeds the statutory maximum.

Whether an appeal waiver applies when the sentencing judge advises the defendant that he has a right to appeal, and the government does not object.

A Circuit split exists on the issue. In the 9th Circuit, if a sentencing judge advises a defendant of a right to appeal and the government fails to object, the appeal waiver in the plea agreement has no effect.

The Supreme Court will now settle the issue.

Hunter v. Texas, Case No 24-1063 (certiorari granted October 10, 2025)

SCOTUSBlog, Court grants criminal case on right to appeal (October 10, 2025)

~ Thomas L. Root