Open Season on Gun Laws – Update for August 13, 2024

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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.

FURBALL OVER SECOND AMENDMENT CONTINUES

lotsalaw240813As a young pup in law school a half-century ago, I had a contract law professor, Robert J, Nordstrom, who was as theatrical as he was brilliant. One day while discussing an obscure point of contract law, he dramatically waved his arm in the general direction of the law library and said, “Remember, people, there’s enough law in there for everybody.”

I got his point. A canny lawyer could find a decision somewhere in the law books that supported whatever position – however ridiculous – he or she wanted to take. Turns out that the same is true of history.

After New York State Rifle & Pistol Association v. Bruen, lawyers stampeded to the history books to find evidence that the many statutes regulating guns on the federal and state books had 18th and 19th-century precedents. Then, last June’s United States v. Rahimi decision relaxed the Bruen standard a bit, clarifying that the historical regulation didn’t have to be identical, just analogous.

In other words, the history doesn’t have to fit exactly. It just has to sort of fit. What’s more, in the fitting, the courts can draw such conclusions as they wish. The results are a pastiche of contradictions. For instance, AR-15s can be banned in Maryland but not in New Jersey.

In the last two weeks alone

• the 8th Circuit quickly upheld its decision that 18 USC § 922(g)(1) did not violate the 2nd Amendment when applied to a defendant previously convicted of a drug offense. The case had been appealed to the Supreme Court but was remanded for the Circuit to reconsider it in light of Rahimi. The Circuit ruled that the Supreme Court said in District of Columbia v. Heller that nothing has “cast doubt on longstanding prohibitions on the possession of firearms by felons,” and that neither Bruen nor Rahimi nor historical analysis changed that.

United States v. Jackson, Case No. 22-2870, 2024 U.S.App. LEXIS 19868 (8th Cir., Aug. 8, 2024)

• the 11th Circuit ruled that neither Bruen nor Rahimi “abrogate[d] our previous holding that § 922(g)(1) does not violate the 2nd Amendment because “felons are categorically ‘disqualified’ from representing their 2nd Amendment right under Heller.”

United States v. Lowe, Case No. 22-13251, 2024 U.S.App. LEXIS 19494 (11th Cir. Aug. 5, 2024)

minuteman240813• the 4th Circuit upheld Maryland’s ban on “assault weapons,” concluding that guns such as the popular AR-15 platform (perhaps 25 million copies in civilian hands in the United States) are outside 2nd Amendment protection because they are “military-style weapons designed for sustained combat operations that are ill-suited and disproportionate to the need for self-defense.” The Circuit cited Blackstone’s Commentaries on the Laws of England (1769) that noted existing prohibitions on “riding or going armed, with dangerous or unusual weapons, which would terrify the good people of the land.”

Bianchi v. Brown, Case No. 21-1255, 2024 U.S.App. LEXIS 19624 (4th Cir. Aug. 6, 2024)

• on July 30, the US District Court for New Jersey ruled that the state’s AR-15 platform ban violated the 2nd Amendment because the style of rifle is commonly owned throughout the United States and well-adapted for self-defense.

Association of New Jersey Rifle & Pistol Clubs, Inc., v. Platkin, Case No. 18-10507, 2024 U.S.Dist. LEXIS 134737, (D.N.J., July 30, 2024)

• In the same week, the 4th ruled that 18 USC § 922(k) – which outlaws possession of a gun with an obliterated serial number – did not violate the 2nd Amendment. The Circuit said that because “we cannot fathom any common-sense reason for a law-abiding citizen to want to use a firearm with an obliterated serial number for self-defense, and there is no evidence before us that they are nonetheless commonly lawfully used, we conclude that firearms with obliterated serial numbers are not in common use for a lawful purpose and they therefore fall outside the scope of the 2nd Amendment’s protection.”

United States v. Price, Case No. 22-4609, 2024 U.S.App. LEXIS 19623 (4th Cir. Aug. 6, 2024)

furball240813The more we see the Bruen standard applied, the confusing-er it gets. The Rahimi holding, at least this early in the game, does not seem to have helped a lot.

Professor Nordstrom might have said, “There’s enough history out there for everyone.”

Pick your facts and make your holdings.

– Thomas L. Root

Dublin Presents “101 Damnations” – Update for August 12, 2024

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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-APPOINTED SPECIAL MASTER DECLARES BOP MANAGEMENT OF FCI DUBLIN ‘UNCONSCIONABLE’

dalmations240812There are no cute spotted puppies in Special Master Wendy Still’s 101-page report on FCI Dublin, made public last week in the class action case pending in Oakland, California, federal court against the Bureau of Prisons.

US District Court Judge Yvonne Gonzalez Rogers ordered the report released at an August 2 hearing where BOP attorneys argued the suit should be dismissed. Gonzalez Rogers has yet to issue a ruling on that request, but the report was unsealed last week.

Still’s report had very little good to say about Dublin or the BOP, finding an “unconscionable” pattern of derelict care and oversight at the now-closed women’s prison and “rais[ing] the alarm that similar problems may be plaguing other federal prisons across the nation,” according to the San Jose Mercury-News.

Special Master Still, a veteran corrections professional, listed a litany of policy failures at Dublin, including inadequate medical care, improper investigations into sex abuse reports, unnecessary disciplinary measures, lack of FSA and RDAP programming and a completely broken administrative remedy system. “The cascade of failures in operational practice has led to staff and [adults in custody] becoming discouraged and to lose confidence in the ability of the BOP to protect/support them,” Still wrote.

Judge Gonzalez Rogers appointed Still as the first special master of a federal prison in history after the Judge made an unannounced visit to Dublin in February and declared the prison to be “a dysfunctional mess.” Still had only been on the job 10 days when the BOP announced Dublin would be closed and started hustling prisoners out the door, a fall-of-Kabul-style evacuation that was halted by Judge Gonzalez Rogers only after Still called the Court to report that the buses were loaded and idling in the parking lot.

medical told you I was sick221017Still’s report chronicles systemic failures at Dublin from sexual abuse recordkeeping to boilerplate BP-9 responses to medical care to the second worst short-staffing in the Western Region. She singled out medical care, noting that “nurses and doctors at the prison often failed to adequately examine inmates “even when the patients presented with symptoms of serious medical conditions,” the report said. Patients were denied timely access to care for physical ailments or mental illness, with Still finding “serious deficiencies” in the prison’s specialty care medical records.

The failures Still noted were not limited to Dublin. She wrote

In addition to the dysfunction noted by the Court, the [Special Master] found numerous operational, policy and constitutional violations as outlined in the body of this report. This included the failure of Central Office and Regional Office management to correct significant and longstanding deficiencies that had previously been iden[ti]fied in multiple audits and investigations. Furthermore, management’s failure to ensure staff adhered to BOP policy put the health, safety and liberty of AICs at great risk for many years. It is unconscionable that any correctional agency could allow incarcerated individuals under their control and responsibility to be subject to the conditions that existed at FCI-Dublin for such an extended period of time without correction.

This Special Master continues to have concerns that the mistreatment, neglect and abuse the AICs received at FCI-Dublin not be repeated at the facilities where these individuals are being transferred to as many of the conditions that existed at this facility appear to be longstanding and systemic in nature.”

Still’s report said that more than 600 women removed from Dublin have filed reports in court of similar problems at other prisons. “It is critical to note that some of the deficiencies and issues exposed within this report are likely an indication of systemwide issues with the BOP,” Still wrote, “rather than simply within FCI Dublin.”

“What happened at Dublin did not happen in a vacuum — it was extremely open and obvious what the warden and others were doing at the time,” said Kara Janssen, an attorney helping to oversee the class-action lawsuit. “Until they fix the broken system, we’re just waiting for the next Dublin. They’re being caused by the failures at the top” of the federal Bureau of Prisons.

kickingbutt240812In an email, BOP spokeswoman Randilee Giamusso said the agency “welcomes the report and will work with Still on her findings and recommendations.” Of course it does, just like Ms. Giamusso probably welcomes a root canal without anesthetic.

Courthouse News Service, Unsealed court monitor’s report describes ‘cascade of failures’ at Bay Area women’s prison (August 5, 2024)

San Jose Mercury News, Federal prison leaders excoriated for ‘unconscionable’ conditions at shuttered FCI Dublin women’s prison (August 6, 2024)

Case No. 4:23-cv-04155 (NDCal), First Report of the Special Master Pursuant to the Court’s Order of March 26, 2024

– Thomas L. Root

Sentencing Commission’s Sounds of Silence on Retroactivity – Update for August 9, 2024

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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.

SENTENCING COMMISSION PUTS BRAKES ON RETROACTIVITY

deafeningslience240809In the annals of retroactive U.S. Sentencing Commission guidelines, never has such an ambitious retroactivity agenda yieldzed such… silence.

The USSC is the federal agency responsible for promulgating guidelines for federal judges in imposing criminal sentences. Its proposed amendments to those Guidelines — made in the spring of every year — become part of the Guidelines on November 1 unless Congress steps in to veto some or all of the changes.

A Guidelines change that would reduce a sentencing range does not apply to the sentence of a prisoner who has already been sentenced unless the Commission proposes a change in USSG § 1B1.10, the Guideline governing retroactivity.

Retroactivity doesn’t happen often. In 36 years and over 825 amendments, the USSC has made an amendment retroactive 21 times (under 3% of the time).

retro240506This year, the Commission proposed to make four Guideline changes, in areas of acquitted conduct, gun enhancements, Guidelines calculation where a defendant is convicted of an 18 USC § 922(g) felon-in-possession count, a 21 USC § 841 drug trafficking count , and a separate 18 USC § 924(c) gun conviction; and a change in the drug Guidelines to tie mandatory and high base offense levels to statutory maximum sentences instead of more complex factors that inflate sentencing ranges.

The Commission solicited public comment on the proposed retroactivity and the staff prepared retroactivity impact reports that, among other matters, estimated how many prisoners would be eligible for reduced sentences if retroactivity on each proposal was adopted.

However, at yesterday’s meeting, the Commission tersely declined to vote on the measure. After about 10 minutes of discussion on Commission priorities for the coming year, US District Court Judge Carlton Reeves (SD-MS), chairman of the Commission called for a motion to adopt the retroactivity proposal. His call was met with a deafening silence.

Chairman Reeves was not surprised, the decision to defer retroactivity apparently having been scripted beforehand. He said:

The matter fails for a lack of a motion.

The public tuned in today to hear not only about the commission’s final priorities but also our decision about retroactivity. Our final priorities made clear that we are listening closely to the public’s recommendations about how to do our work. Many have called for the Commission to identify clear principles that will guide its approach to retroactivity. After deep deliberation, we have decided to heed those calls. For that reason, we will not be voting on retroactivity today. Nevertheless, I want to thank all of those who submitted comments and testimony regarding retroactivity for these amendments. Please know that your input has been heard and will continue to be heard as the Commission moves forward.

So what happened?

The best speculation is that the Commission is responding to criticism heaped on it for adopting amended Guideline 1B1.13(b)(6), which permits judges to grant compassionate release where a prisoner’s sentence could not be imposed today because of changes in the law that occurred after the sentence was imposed. Subsection (b)(6) contains a lot of caveats: the prisoner must have served 10 years, the change must have created a substantial disparity between the prisoner’s sentence and current sentences for the same offense, and the inmate’s prison record had better be clean as a whistle.

Nevertheless, after the Commission adopted the amended 1B1.13 containing the new subsection (b)(6), Sen John Kennedy (R-LA), a member of the Judiciary Committee, introduced the Consensus in Sentencing Act (S.4135) to require the Commission to achieve “bipartisan agreement to make major policy changes.” The bill would amend 28 USC § 994(a) to require that amendments to the Guidelines receive five votes from the Commission’s seven voting members.

At the time, Kennedy whined that “[t]he Sentencing Commission for decades strove to achieve bipartisan agreement when adopting amendments to the Sentencing Guidelines. In recent years, the Commission has lost its way and begun forcing through amendments on party-line votes.”

The Commission has seven voting members. No more than four members can belong to the same political party.

Sens Ted Cruz (R-TX), John Cornyn (R-TX), Tom Cotton (R-AR) and Marco Rubio (R-FL) cosponsored S.4135, which is stalled in the Judiciary Committee and has no chance of passage before the 118th Congress expires at the end of the year.

Nevertheless, in June, retired US District Judge John Gleeson, a member of the Commission, met with Kennedy, after which Kennedy said that “Gleeson acknowledged the concerns raised about the Commission’s recent practices and confirmed that the Commission will return to making changes on a bipartisan basis.”
“I look forward to seeing the fruits of this commitment.”

I suspect he just did.

can230407The Commission did not reject retroactivity on the amendments, but its intention to adopt guiding principles for retroactivity pretty much ensures that any decision on making the acquitted conduct and other amendments retroactive has been kicked down the road for a year or better.

Sentencing Commission Public Hearing (Video) (August 8, 2024)

Sentencing Commission, Final Priorities for Amendment Cycle (August 8, 2024)

S.4135, Consensus in Sentencing Act

Sen John Kennedy, Kennedy introduces bill to restore bipartisan decision-making at Sentencing Commission (April 7, 2024)

Sen John Kennedy, Kennedy confirms that Sentencing Commission will return to bipartisan agreement for changes to Sentencing Guidelines (June 3, 2024)

– Thomas L. Root

Some Pro Tips for Compassionate Release D-I-Y’ers from the 1st Circuit – Update for August 8, 2024

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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.

1ST CIRCUIT HANDS OUT A FEW PRO TIPS FOR COMPASSIONATE RELEASE MOTIONS

The 1st Circuit reminded us last week that 18 USC § 3582(c)(1)(A) compassionate release decisions are granted largely in the district court’s discretion, and if the district court thinks you’re still a danger to the community, don’t expect love from the court of appeals.

walkedwomantalkedman240808Michel D’Angelo robbed a bank in 2012 dressed like a woman and carrying a purse he told tellers contained a bomb. His lengthy criminal history of burglary, theft, disorderly conduct, criminal threatening, multiple assaults, and trafficking in prison contraband, qualified him under the law at the time as a Guidelines career offender (sentencing range of 210-240 months. The judge varied downward because of Mike’s mental health challenges and gave him 180 months.

In 2022, 11 years after the bank robbery, Mike sought compassionate release. He argued that changes in Guidelines interpretation meant that he would not be a career offender if he were sentenced today, that he had been rehabilitated, and that the BOP had not adequately treated his mental conditions.

The district court denied the compassionate release motion. Last week, the 1st affirmed, finding that the district court’s holding that Mike was still a danger to the public — despite his showing on other 3553(a) factors — was well within the judge’s discretion.

The case arose when USSG § 1B1.13 was still advisory, making some of its holding inapplicable to current compassionate release motions. However, there are two takeaways worth considering for those seeking compassionate release now.

nickdanger220426First, the district court found Mike to still be a danger because he had a long criminal history even before robbing the bank; the robbery was “a frightening and life-endangering offense;” and he had “accumulated a tumultuous disciplinary record while incarcerated.” Also, Mike’s recidivism score was “high,” a fact more important to the Circuit than Mike’s argument that his age – 42 years old – made him statistically less likely to commit new crimes.

The lesson here is that if you have a significant criminal history (Mike’s was a “V”), if you committed a crime of violence, or if you have a checkered institutional disciplinary record, you may have a steep hill to climb getting a compassionate release. If your PATTERN score is a “low” or “minimum,” you should soundly thump that fact.

Second, the 1st agreed that Mike wouldn’t be a career offender if sentenced today, but it held that that fact alone was not extraordinary and compelling. Look to § 1B1.13(b)(6) (change in sentencing law that produces a gross disparity and the prisoner has served 10 years and his or her “individualized circumstances” justify a reduction. Mike had gotten a downward variance sentence to 180 months because of his mental health problems, within what his Guidelines would have been without career criminal status. No gross disparity here, and Mike’s “individualized circumstances,” mainly his institutional conduct and progress, were not good.

The tip is that a change in the law alone is not enough to establish extraordinary and compelling reasons for grant of a compassionate release motion. Read and follow § 1B1.13(b)(6).

nothingcoming210420The final pro tip in this decision arose from Mike’s complaint that the district court was obligated to correctly calculate his lower Guidelines range (without career offender) before performing the 18 USC § 3553(a) “sentencing factors” analysis. The 1st disagreed, finding that the district judge “correctly calculated this lower Guidelines range before explaining why § 3553(a) did not favor reducing Mike’s sentence. Because the district court performed its § 3553(a) analysis after assuming that the career-offender enhancement would not apply, we gather from context that it implicitly considered that Guidelines range as part of its analysis.”

This holding suggests that any compassionate release motion raising the argument that the movant would not have been sentenced as harshly today should include a reasonably detailed analysis of the correct Guideline range and point out that any § 3553(a) analysis should start from the adjusted lower range.

United States v. D’Angelo, Case No. 22-1875, 2024 U.S. App. LEXIS 18794 (1st Cir. July 30, 2024)

– Thomas L. Root

Judge Skeptical At BOP’s Claim That FCI Dublin’s Problems Are In the Rear-View Mirror – Update for August 6, 2024

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FCI DUBLIN CLOSURE HAS NOT MADE EVERYTHING “HUNKY DORY”

If anyone at Bureau of Prisons headquarters thought that peremptorily closing FCI Dublin and creating a diaspora of its female prisoners across the BOP would solve its sex abuse headache, last week may have dissuaded such hopes.

hunkydory240806Oakland TV station KTVU reported that at a hearing last Friday, US District Court Yvonne Gonzalez Rogers (N.D. Cal.) “slammed” BOP lawyers for trying to dismiss a class action lawsuit over sexual abuse and retaliation at the FCI Dublin and “grilled” BOP Director Colette Peter’s deputy, who flew in from Washington, DC for the hearing.

The BOP shut down FCI Dublin on April 15 following a years-long sex abuse scandal by guards and a federal court’s appointment of a special master to oversee reforms at the prison. Its lawyers now argue that the lawsuit against the BOP is moot because of the closure.

Judge Gonzalez did not receive the argument well:

You’re asking to dismiss this case and are saying that everything is hunky dory, and you can’t even resolve ]a myriad of issues that include giving the women their property back or proper medical treatment]… The BOP caused these problems themselves. It strains credulity that this motion was filed, given everything. Clearly, major issues still need to be resolved… You want this court to wipe its hands clean and go its merry way with respect to those hundreds of individuals that are out there?

KTVU reported that the issues include 126 medical cases, 63 people with substance abuse needs, 39 mental health issues and 137 property claims that are still not resolved. All of these stem from the closure of the prison, where 605 women were transferred to prisons across the country.

BOP lawyers argued that staff can’t process property claims because the prisons to which the women were transferred are “severely understaffed.” The judge testily reminded the attorneys that the transfers and understaffing “was completely of their own doing,” KTVU reported.

The judge had ordered Deputy Director William Lathrop to appear before her or she would throw out the BOP’s motion to dismiss. He testified that a “high-level executive decision” to close Dublin was made about a month before the closure.

nothingtosee240806The judge suggested that the BOP simply spread the problem elsewhere. “So you sent [the incarcerated women] to understaffed facilities and didn’t increase staffing?” the judge asked.

“Correct,” Lathrop answered.

BOP lawyers, for the first time, told the court that another reason for closing Dublin was because local doctors (none of whom were identified) did not want to work at the prison because they were worried the women would falsely accuse them of sexual assault.

The judge expressed her skepticism. “This is all news to me,” she said. “It’s nowhere in the record and I have not heard any evidence of that.”

Documents ordered unsealed last Friday in the lawsuit included Special Master Wendy Still’s report that detailed systemic abuse and inadequate medical and mental health care at Dublin:

Management’s failure to ensure staff adhered to BOP policy put the health, safety and liberty of [adults in custody] at great risk for many years… It is unconscionable that any correctional agency could allow incarcerated individuals under their control and responsibility to be subject to the conditions that existed at FCI-Dublin for such an extended period of time without correction.

Special Master Still, a former corrections professional, wrote that she “continues to have concerns that the mistreatment, neglect and abuse” inmates experienced at the facility not be repeated where they were transferred, “as many of the conditions that existed at this facility appear to be longstanding and systemic in nature.”

The Report was to be made public yesterday but was not posted on the docket as of the morning of August 6th.

dungeon240806The Special Master’s concern is not misplaced. Susan Beaty, an attorney who represents hundreds of women formerly held at Dublin, told KTVU last week that about 200 of the 605 women transferred from the now-closed facility are being held in three BOP detention centers and have lacked access to sunlight for months.

“The lack of access to outdoor space has really compounded the impact of these transfers and the trauma that our clients have already been through,” Beaty said. She reported that one of her clients told her that the BOP is aware of this issue because the prisoner’s unit team told her to “drink milk” to help with Vitamin D deficiencies.

KTVU, Judge slams BOP for trying to dismiss FCI Dublin case; grills deputy director (August 2, 2024)

KTVU, Former FCI Dublin prisoners say they haven’t felt sunlight in months (July 30, 2024)

KQED, Special Master Slams Conditions at FCI Dublin in Report (August 2, 2024)

– Thomas L. Root

Clues to Rahimi Application Pop Up in Circuit 922(g) Decisions – Update for August 5, 2024

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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.

A PAIR OF § 922(g)(1) CASES

gunfight230919I remain convinced that the Supreme Court’s United States v. Rahimi decision — banning gun possession for an individual who has shown himself to be dangerous is historically justified under the Second Amendment — represents a necessary correction to the wild, wild west of gun rights suggested by Justice Thomas’s New York State Rifle & Pistol Ass’n v. Bruen opinion. In fact, I suspect that Rahimi makes it more likely that people convicted of nonviolent felonies will regain their Second Amendment rights in the next two years.

Two cases decided last week may hint at how courts will approach a post-Rahimi felon-in-possession world.

Carl Langston was convicted of being a felon in possession of a gun under 18 USC § 922(g)(1) after a drunken brawl at a bar. He pled guilty but, on appeal, argued for the first time that § 922(g)(1) was unconstitutional under New York State Rifle & Pistol Ass’n v. Bruen as applied to him.

Last Friday, the 1st Circuit upheld his conviction. The Circuit applied the F.R.Crim.P. 52(b) plain error standard to review because Carl hadn’t raised the issue in the trial court and found that his argument failed because (1) no prior Supreme Court or 1st Circuit holds that § 922(g)(1) is unconstitutional “in any of its applications;” and (2) Rahimi “does not compel the conclusion that § 922(g)(1) is unconstitutional under the Second Amendment as applied to defendants with Hugh’s criminal history.

gun160711In fact, the 1st observed, “rather than compelling the conclusion that § 922(g)(1) is unconstitutional, the Supreme Court’s Second Amendment cases consistently reiterate, albeit in dicta, the presumptive lawfulness of the felon-in-possession statute… The Supreme Court’s majority opinion in Rahimi, joined by eight justices, once again identified prohibitions on the possession of firearms by felons as ‘presumptively lawful’.”

It’s hard to win a “plain error” appeal, as Carl found out. However, the Circuit conceded that Carl’s appeal

presents a serious constitutional claim that the Supreme Court has not yet resolved. As Langston points out, Rahimi held only that an individual may be temporarily disarmed, consistent with the Second Amendment, if a court has found that the individual poses a credible threat to the physical safety of another. Still, the Supreme Court has stated repeatedly over sixteen years, from [District of Columbia v] Heller to Rahimi, that felon-in-possession laws are presumptively lawful. Thus, on plain-error review, we cannot agree with Carl that the mere fact that the government did not introduce historical evidence to support the constitutionality of § 922(g)(1) makes it clear and obvious that his conviction violates the Second Amendment.

Meanwhile, the 3rd Circuit ruled that Dionti Moore, who used his fiancée’s handgun to frighten off intruders at her home while he was on supervised release, had no Second Amendment defense to a § 922(g)(1) felon-in-possession conviction.

The Circuit relied on Rahimi’s holding that it had to find that § 922(g)(1), as applied to Dionti, is “relevantly similar to laws that our tradition is understood to permit… [and that] why and how the regulation burdens the right are central to this inquiry… In other words, a modern firearms regulation passes constitutional muster only if it is “consistent with the principles that underpin our regulatory tradition.”

Comparing 18th and 19th-century laws to disarming a convicted felon while on supervised release, the 3rd ruled that “the bottom line is this: during the founding era, forfeiture laws temporarily disarmed citizens who had committed a wide range of crimes… This historical practice of disarming a convict during his sentence — or as part of the process of qualifying for pardon — is like temporarily disarming a convict on supervised release. After all, the defendant receives a term of supervised release thanks to his initial offense, and… it constitutes a part of the final sentence for his crime’” (quoting the Supreme Court ruling in United States v. Haymond). The Circuit concluded that “[c]onsistent with our Nation’s history and tradition of firearms regulation, we hold that convicts may be disarmed while serving their sentences on supervised release.”

Of course, the Court’s focus on “temporarily” disarming and “disarm[ing] while serving their sentences on supervised release” can easily be read to infer that permanently disarming someone with a felony conviction on his record is a different matter altogether.  

gunfreezone170330One would expect nothing less from the Circuit that handed down the en banc Range v. Attorney General decision, which is currently in front of the 3rd Circuit on remand.  Incidentally, supplemental briefs by both Bryan Range and the government were filed last Friday, suggesting a new decision is on the fast track in Philadelphia. There is little doubt that whatever the decision, it will end up again at the Supreme Court.

United States v. Langston, Case No. 23-1337, 2024 U.S.App. LEXIS 19353 (1st Cir. Aug 2, 2024)

United States v. Moore, Case No. 23-1843, 2024 U.S.App. LEXIS 19282 (3d Cir. Aug 2, 2024)

– Thomas L. Root

Some Short Stuff – Update for August 2, 2024

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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.

Today, some short reports for easy beach reading…

shorts240802

SUMMERTIME SHORTS

retro160110Sentencing Commission Retroactivity Decision, Priorities For Next Year Set For Aug 8: At a scheduled Aug 8 meeting, the US Sentencing Commission will decide whether four proposed Guidelines changes to become effective in November will be retroactive.

The four changes for which retroactivity is on the table are

• the acquitted conduct amendment;

• a change to § 2K2.1(b)(4)(B)(i) to provide that the 4-level enhancement gun serial number obliteration applies only if the serial number has been modified such the original number is “is rendered illegible or unrecognizable to the unaided eye;” and

• a change to Commentary in § 2K2.4 to permit grouping of an 18 USC § 922(g) gun count with a 21 USC § 841 drug trafficking count where the defendant has a separate 18 USC § 924(c) gun conviction based on drug trafficking.

• a change in § 2D1.1(a) to tie mandatory and high base offense levels to statutory maximum sentences instead of more complex factors that are not necessarily consistent with 21 USC  § 841(b)(1)(A) or (B).

The Commission will also adopt priorities for the coming year.

US Sentencing Commission, Public Meeting, Thursday, August 8, 2024

‘Dirty Dick’s’ Woes Continue: A superseding indictment handed up last week accused former Bureau of Prisons correctional officer Darrell Wayne “Dirty Dick” Smith of sexually abusing more inmates at FCI Dublin.

Last Thursday, a federal grand jury charged Smith with 15 counts of sexual abuse, including a civil rights violation, against five women in their cells and a laundry facility between 2016 and 2021.. Smith, known to detainees as “Dirty Dick,” had previously been indicted of sexually abusing three female inmates.

He is accused by inmates of actively roaming the prison, seeking out victims, and locking women in their cells until they exposed themselves to him.

L.A. Times, Guard at ‘rape club’ prison faces new charges of sexually abusing inmates (July 26, 2024)

DOJ Sides With Prisoners In SCOTUS First Step Case: The Supreme Court has had to appoint private lawyers to argue the other side of a pending case, Hewett v. United States, asking whether the First Step Act requires a resentencing to apply changes in mandatory minimums favorable to defendants.

goodlawyer240802The Dept of Justice has told the high court that “the government agrees that the best reading of Section 403(b) is that Section 403’s amended statutory penalties apply at any sentencing that takes place after the Act’s effective date, including a resentencing.”

In cases where the government agrees with the petitioner, the Supreme Court appoints a lawyer to argue the other side so that the Court’ decision is based on a thorough examination of the issue. In Erlinger v. United States, decided last month, DOJ agreed with the petitioners that juries should decide whether Armed Career Criminal Act predicate crimes occurred on separate occasions, requiring SCOTUS to appoint counsel to argue against the petitioner. The Court appointed a private attorney to argue the side abandoned by the government.

For Hewitt, the Court appointed Michael H. McGinley, Global Co-chair of the Securities and Complex Litigation practice group for mega law firm Dechert LLP, to argue that First Step does not let defendants benefit from more liberal sentencing terms if their original sentence was imposed before the law passed.

Supreme Court, Order (July 26, 2024)


hardtime240801‘Hard’ Federal Time Converts Another One: Peter Navarro, who completed a 4-month federal sentence for contempt of Congress two weeks ago just in time to be whisked to Milwaukee to address the Republican National Convention, said last week that federal law imposes harsher sentences than necessary for drug offenses.

“The standard that we want to have when we think about the criminal justice system, which I’ve been inside of now and I understand this better, there are bad people doing bad things, but there’s good people doing bad things as well,” Navarro said in a TV interview.

Navarro said that the longer people are in prison, the higher the chance that they will commit more crimes because they have “fewer skills” and “get more angry.”

The Trump advisor also said the costs of housing inmates costs about $60,000 a year per inmate, but that placing people on house arrest or in halfway homes reduces the costs by roughly half.

Just the News, Navarro urges U.S. to be ‘smart’ on crime, not ‘soft’ on crime following prison sentence (July 23, 2024)

– Thomas L. Root

Congress Orders BOP To Spend Money It Doesn’t Have – Update for July 31, 2024

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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.

FPOA IS LAW, BUT BOP MONEY WOES PERSIST

hr3019oversight240528President Joe Biden signed the Federal Prisons Oversight Act into law last Thursday. The bill is intended to strengthen oversight of the Federal Bureau of Prisons after The Associated Press reported on systemic corruption, failures and abuse in the federal prison system.

The FPOA, which passed the Senate on July 10th and the House last May, establishes an independent ombudsman to field and investigate complaints by prisoners, their families, and staff about misconduct and deficiencies. It also requires that the Dept of Justice inspector general conduct regular inspections of all 122 federal prison facilities, issue recommendations to address deficiencies and assign each facility a risk score. Higher-risk facilities would receive more frequent inspections.

BOP Director Colette Peters praised the bill in testimony before the House Judiciary Subcommittee on Crime and Federal Government Surveillance last week, but told the Subcommittee that the agency will need tens of millions of dollars in additional funding “to effectively respond to the additional oversight and make that meaningful, long-lasting change.”

“You inherited a mess. I mean, you inherited a mess,” Congressman Kelly Armstrong (R-ND) told Peters during her testimony last Tuesday. And she did, a mess that is not going to go away without money.

understaffed220929For instance, Peters noted that the new FPOA limits the BOP’s use of augmentation, the practice of using education, medical and other staff as stand-in corrections officers. “While I agree with the sentiment of limiting augmentation,” Peters told the Subcommittee, “today in the midst of our staffing crisis, without augmentation, we will mandate more overtime which will not only cost tens of millions of dollars more per year (~$60 million) but again, I will note the human cost and the physical and mental wear and tear on our people.”

Last year alone, the BOP paid more than $128 million in incentives and more than $345 million in overtime. Ordering the BOP to stop augmentation without giving the agency the money needed to hire COs is like trying to stamp out poverty by ordering poor people to be rich.

Peters testified, “Over the past 10 years, BOP’s budget only increased approximately 23% (which equates to about 2% per year). Over that period, budgeting resulted in a reduction of 3,473 authorized positions… Over the past 10 years, we did not receive a total of more than 1,900 authorized positions and 7,000 FTEs requested in the President’s Budgets… BOP has temporarily closed three institutions and 13 housing units at 11 institutions due to dangerous conditions. They account for a loss of more than 4,000 beds at every security level.”

Writing in Forbes last week, Walter Pavlo pointed out that the BOP has some control over its destiny:

One way to help reduce the stress the agency is under is by reducing the number of prisoners in prisons, something that could be done with a full implementation of the First Step Act and Second Chance Act. Director Peters noted that the prison population has slightly increased over the past few years despite the legislation. Those two laws, both passed and signed into law under Republican administrations (Donald Trump and George W. Bush respectively) allow many low and minimum security prisoners to reduce their prison term by up to a year and also place them in the community (halfway houses) for longer periods of time.

No room at the inn?
No room at the inn?

An NBC News investigation found that the BOP is not placing as many people in the community as it could. The result is that many prisoners stay in correctional institutions far longer than necessary when less restrictive and less expensive prerelease custody (halfway house/home confinement) should be available. However, a noted shortage of halfway house space is preventing the BOP from placing more people in confinement in the community. Retired BOP Acting Director Hugh Hurwitz said, ‘Since the First Step Act was signed, the BOP knew it needed more capacity but nearly 6 years later, halfway house space continues to be a problem’.”

“We believe in accountability, oversight, and transparency,” Peters told the House Subcommittee. “But we cannot do this work alone.” That is true, but there is more that the BOP can do.

Associated Press, Biden signs bill strengthening oversight of crisis-plagued US Bureau of Prisons after AP reporting (July 25, 2024)

Sen Jon Ossoff, SIGNED INTO LAW: Sens. Ossoff, Braun, & Durbin, Reps. McBath & Armstrong’s Bipartisan Federal Prison Oversight Act (July 25, 2024)

BOP, Oral Statement of Director Colette S. Peters, July 23, 2024,
House Judiciary Committee, Subcommittee on Crime and Federal Government Surveillance

Forbes, Bureau of Prisons Director Testifies At House Judiciary Committee (July 24, 2024)

– Thomas L. Root

3rd Circuit Holds Lawyer’s Sentence Misadvice is Ineffective Assistance – Update for July 29, 2024

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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.

WHEN LAWYERS AREN’T JUST WRONG, BUT VERY, VERY WRONG

It’s long been held that a lawyer’s duty during plea negotiations is to advise a defendant on the strength of the government’s case and the difference between the sentence you’d get at trial and the one you’ll get taking the plea. But what if your lawyer blows it?

wrong160620Many a prisoner has complained in a § 2255 motion that his or her lawyer badly misestimated the sentence, and if counsel had gotten it right (or close to right), the defendant would have accepted the deal. And many of those prisoners have lost their 2255s because the court holds that their lawyers’ bad guesses are not the same as ineffective assistance.

But sometimes, the miss is just too wide.

Steven Baker had committed a series of armed bank robberies. When he faced trial in 2010, Steve’s attorney advised him that he faced a total of 15-17 years’ imprisonment if he accepted a government offer to plead to one robbery and one 18 USC § 924(c) gun charge, but if he didn’t take the deal, the government would charge him with two other armed robberies. Counsel said the three potential § 924(c) counts would give him 21 years consecutive to his bank robbery Guidelines.

Wrong, wrong, wrong. This was all before the First Step Act passed in 2018, so Steve faced a consecutive 57-year mandatory minimum sentence under the § 924(c) “stacking” provision then in effect. Based on the difference between 17 years with a plea and 21 years rolling the dice at trial, Steve turned down the plea. He was charged with the other robberies and went to trial, where he, of course, was convicted on all counts. He got 57 years on the § 924(c) counts plus 87 months more on the bank robbery charges.

Steve filed a § 2255 motion claiming his lawyer was ineffective in advising him so badly about 21 years versus 57 years. The district court turned him down, but last week, the 3rd Circuit vacated his conviction.

pleading170502“When addressing a guilty plea, counsel is required to give a defendant enough information to make a reasonably informed decision whether to accept a plea offer,” the Circuit held. “We have little difficulty concluding that this more than three-decade miscalculation of Baker’s sentence exposure on the three potential § 924(c) counts is objectively unreasonable.”

The bigger issue was whether Steve had proven he was prejudiced, that is, that he would have taken the 17-year plea deal if his lawyer had accurately explained the likely 57-year stacked sentence if he went to trial. The trial court found Steve’s testimony that he would have taken the deal to lack credibility, but the 3rd Circuit said the very fact that the difference between the 21 years estimated by counsel and the 57 years plus he got was all the evidence it needed.

Considering the sentence-exposure disparities as evidence of prejudice “makes good sense,” the 3rd ruled.

A great disparity provides sufficient objective evidence—when combined with a defendant’s statement concerning his intentions—to support a finding of prejudice… Moreover, while a defendant’s calculus in accepting or rejecting a plea offer may involve many variables, knowledge of the comparative sentence exposure between standing trial and accepting a plea offer will often be crucial. Large sentence-exposure disparities weigh directly on this “crucial” decision.

hammer160509Steve’s actual sentencing range was “extraordinarily greater than the 15-17 years he would have received had he accepted the plea offer,” the Circuit said. “As Baker states, the 57-year mandatory minimum alone would almost certainly mean that he would ‘die in prison.’ This great sentence-exposure disparity, the true scope of which Baker did not know due to his counsel’s underestimate of the sentence for the potential firearm charges, weighs heavily in favor of prejudice.”

Baker v. United States, Case No. 23-2059, 2024 U.S. App. LEXIS 18333 (3d Cir., July 25, 2024)

– Thomas L. Root

Deja Vu for the Second Amendment at the 9th Circuit – Update for July 23, 2024

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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.

9TH CIRCUIT ‘GROUNDHOGS’ DUARTE GUN DECISION

groundhogday240723You may recall that in May, a 9th Circuit three-judge panel held that the 18 USC § 922(g)(1) ban on felons possessing guns was held to violate the Second Amendment rights of a guy convicted of drug trafficking.

Last week, the Circuit withdrew the opinion and set the case for en banc review.

In an unusual and entertaining “dissental” from grant of review, 9th Circuit Judge Lawrence VanDyke wrote,

What would you do if you were stuck in one place and every day was exactly the same, and nothing that you did mattered?’ In the Ninth Circuit, if a panel upholds a party’s Second Amendment rights, it follows automatically that the case will be taken en banc. This case bends to that law. I continue to dissent from this court’s Groundhog Day approach to the Second Amendment.

Judge VanDyke only wrote what everyone already knows to be true. “In this circuit,” he said of the 9th, “you could say that roughly two-fifths of our judges are interested in faithfully applying the totality of the Supreme Court’s Second Amendment precedent when analyzing new issues that have not yet been directly addressed by the Court. The other 17/29ths of our bench is doing its best to avoid the Court’s guidance and subvert its approach to the Second Amendment. That is patently obvious to anyone paying attention. To say it out loud is shocking only because judges rarely say such things out loud….”

Meanwhile, the 8th Circuit last week struck down a Minnesota law preventing 18-to-20-year-olds from carrying handguns in public. The case, Worth v. Jacobson, is noteworthy for its application of United States v. Rahimi: “Minnesota states that from the founding, states have had the power to regulate guns in the hands of irresponsible or dangerous groups, such as 18 to 20-year-olds,” the Circuit wrote. “At the step one ‘plain text’ analysis, a claim that a group is ‘irresponsible’ or ‘dangerous’ does not remove them from the definition of the people.”

groundhogs240723

The 8th ruled that “a legislature’s ability to deem a category of people dangerous based only on belief would subjugate the right to bear arms “in public for self-defense” to “a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees,” citing New York State Rifle & Pistol Ass’n v. Bruen and Rahimi.

The decision leaves little doubt that the 8th sees a ban on the entire category of people once convicted of felonies to be equally untenable under the Second Amendment. What this portends for the inevitable Supreme Court showdown on § 922(g)(1) depends in large part on the Third Circuit in Range and the Ninth’s rewrite of Duarte.

United States v. Duarte, Case No. 22-50048, 2024 U.S. App. LEXIS 17601 (9th Cir., July 17, 2024)

Worth v. Jacobson, Case No. 23-2248, 2024 U.S. App. LEXIS 17347 (8th Cir. July 16, 2024)

– Thomas L. Root