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

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Last week, I reported on the 3rd Circuit’s en banc ruling that someone convicted of a nonviolent “crime punishable by imprisonment for a term exceeding one year” (18 USC § 922(g)(1)) could not constitutionally be prohibited from possessing a gun or ammo. That report was followed by a dispatch on the Supreme Court’s decision last Thursday that dramatically limited the reach of the aggravated identity theft statute (18 USC § 1028A).

This was followed by the predictable questions from prisoners: “When can I use the Range decision to get my § 922(g) conviction vacated? And how about getting rid of my aggravated identity theft conviction under § 1028A?”

Very good questions, and inquiries for which the hopemongers who will write any motion for a federal prisoner in exchange for a modest fee – let’s call them what they are, hopemongers – have a ready answer. That answer usually starts with, “Pay me…”

Now let’s ask the professor.  Or, because he’s nowhere around, ask me…

To be sure, a lot of people could be affected by the decisions, provided there’s a procedural route to raise them. About 21% of federal prisoners have a § 922(g) conviction, while about 2% are doing time for aggravated ID theft. That’s a potential of about 35,000 felon-in-possession and 3,500 § 1028A defendants.

Range: Remember first that the Range decision is only binding in the 3rd Circuit. If your case isn’t from there, Range doesn’t help you. In fact, as I reported a week ago, the 8th Circuit just went the other way in its United States v. Jackson decision.

However, if your 1-year deadline for filing a § 2255 motion hasn’t expired, by all means challenge § 922(g) constitutionality in your motion. But if your time has expired, your options are limited. Under 28 USC § 2255(f)(3), you can file within a year of a new SCOTUS ruling on the constitutionality of a statute, but Range is not a Supreme Court case. If you have already lost your § 2255 motion, you have to get Court of Appeals permission to file another § 2255 and that standard likewise requires that the motivating decision be from the Supreme Court.

So how about a 28 USC § 2241 petition? We’ll know a lot more about § 2241s in a few weeks when SCOTUS decides Jones v Hendrix. For now, fitting a Range-type claim into the standards for bringing a § 2241 (under the § 2255(e) saving clause) will be tough.

For § 922(g) defendants, it may be worth a shot if your conviction came from a 3rd Circuit district court. For everyone else, it’s a waiting game…

ID Theft: For those beyond the § 2255 filing deadline, the traditional 28 USC § 2241 petition for habeas corpus will likely be available under the saving clause.

Because Dubin is a statutory interpretation and not a constitutional holding (despite Justice Gorsuch’s argument that it could easily have been), the route of filing a second or successive § 2255 (under the rules set up by § 2255(h)) is probably unavailable.

General Pro Tip: If you’re proceeding on § 2255 or § 2241, find competent help. Procedural questions are boring but vitally important to winning.

Ohio State University law prof Doug Berman observed last week that “offenders now looking to pursue what might be called “Dubin claims” could, of course, face procedural barriers of all sorts. But the still-open-ended sentence reduction authority of 3582 might be one ready means for at least some (over-sentenced) prisoners to secure relief…”

USSC, Quick Facts – Felon in Possession (June 2022)

USSC, Quick Facts – Sec 1028A Aggravated Identity Theft Offenses (July 2022)

Sentencing Law and Policy, How many of the many thousands convicted of federal aggravated identity theft might now have Dubin claims? (June 8, 2023)

– Thomas L. Root