Tag Archives: 18 USC 3553(f)

Supremes Mull Identity Theft – Update for February 27, 2023

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

GOOD INTENTIONS RUN AMOK?

almaty230227There was a time when the still-nascent Internet was spawning a land-office business in identity theft. Aided by “cyberspace,” hackers, code crackers and slackers had stopped wasting time with all  the chatroom yakkers, and instead were using your personally identifiable information (PII) to get new credit cards in your name. Next thing you know, you had bought a 400,000-tenge set of new tires in Almaty, Kazakhstan, the same day you had a 200,000-peso steak dinner in Ushuaia, Argentina.

This use of an innocent person’s PII to get a bogus line of credit and sticking them with the consequences became known as “identity theft.” And it was perceived as a real problem.  Congress responded with 18 USC § 1028A, the “aggravated identify theft” statute.

Just as the government is loathe to ever let a serious crisis go to waste, the Dept of Justice has  broadly applied the federal identity theft statute to hammer situations that are nowhere close to the hold that all sorts of misconduct that happens to use someone’s name or personal information in the offense is aggravated identity theft.

ushuia230227The statute imposes a two-year mandatory minimum sentence on any person who, “during and in relation to” certain enumerated felonies, “knowingly transfers, possesses, or uses without lawful authority, a means of identification of another person.” And the government loves offenses with mandatory minimums.

Today, the brakes may be applied to § 1028A (lucky we have those new tires). SCOTUS will consider the reach of the statute in Dubin v. United States.

Dr. Dubin, the managing partner of a psychological services company that provided mental health testing to youths at emergency shelters, was convicted of Medicaid fraud for a claim he submitted for a patient’s treatment. The patient had in fact been treated by the practice and no one doubts the Doc had the right to submit the claim. But the government argues that Dr Dubin overbilled for the treatment provided, and that ran afoul of § 1028A.

Dr. Dubin did not commit identity theft in any normal sense. No Argentina steaks, no Kazakh tires. But the statute’s language, the government argues, means that the Doc’s conduct “squarely fits” within the statutory text: As SCOTUSBlog put it, the government contends that “he ‘used’ the patient’s name ‘in relation to’ health care fraud, and he ‘plainly acted’ without ‘lawful authority’ when he committed the fraud.”

words221110Dubin’s lawyers argue that the statutory phrase ‘in relation to’ must be read in tandem with the verb ‘uses.’ Dubin contends that the statute “requires a meaningful nexus between the employment of another’s name and the predicate offense.” Using another’s identity “without lawful authority” requires a showing that the defendant used another’s person’s name “without permission that was lawfully acquired.”

The 5th Circuit ruled for the government, and on rehearing the case en banc, upheld the conviction by a razor-thin 9-8 margin.

Writing in Reason, Berkeley law professor Orin Kerr said that “the stakes are high. A lot of crimes are technically felonies under Title 18 but are pretty low-level felonies, the kind of thing likely to lead to probation or at most a short prison term. But if § 1028A applies, it tacks on a two-year prison sentence. So you could have a probation offense that becomes a two-years-in-jail offense if § 1028A is triggered, with the § 1028A punishment dwarfing the predicate felony punishment.”

SCOTUS Relists Grants Safety-Valve Cert Petition: [Update]:  The Supreme Court granted certiorari to Pulsifer v. United States on February 27.  The case will be argued next fall].

The drug safety-valve statute, 18 USC 3553(f), provides that a sentencing court may ignore drug mandatory minimums if (among other requirements) it finds that the defendant does not have (A) more than 4 criminal history points, excluding any criminal history points resulting from a 1-point offense, as determined under the sentencing guidelines; (B) a prior 3-point offense, as determined under the sentencing guidelines; and (C) a prior 2-point violent offense, as determined under the sentencing guidelines.

safetyvalv200618Pulsifer v. United States and Palomares v. United States ask whether a defendant is ineligible for safety valve relief from the mandatory minimum if his or her criminal history runs afoul of any one of the disqualifying criteria or only if his or her criminal history runs afoul of all three disqualifying criteria, subsections (A), (B), and (C). Circuits are divided on the issue 3-4. John Elwood of SCOTUSBlog predicts that of the two cases, “probably at least one will get the grant.”

Last week, the 4th Circuit joined the debate, holding in United States v. Jones that a defendant has to lose on all three criteria before he or she can be denied the safety valve. The Circuit said, “Ultimately, whether or not this is a prudent policy choice is not for the judiciary to decide: that determination lies solely with the legislative branch. And “the Government’s request that we rewrite 3553(f)(1)’s ‘and’ into an ‘or’ based on the absurdity canon is simply a request for a swap of policy preferences… We cannot “rewrite Congress’s clear and unambiguous text” simply because the Government believes it is better policy for the safety valve to apply to fewer defendants.

Dubin v. United States, Case No 22-10 (oral argument Feb 27, 2023)

SCOTUSBlog.com, Literalism vs. lenity in a case on the scope of federal identity theft (February 24, 2023)

Reason, Thoughts on Dubin v. United States and the Aggravated Identity Theft Statute (February 19, 2023)

United States v. Jones, Case No 21-4605, 2023 U.S. App. LEXIS 3963 (4th Cir., February 21, 2023)

– Thomas L. Root

Judicial Odds and Ends – Update for June 3, 2021

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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.

AN ANNIVERSARY OF A MYSTERIOUS DEATH… AND A COUPLE OF CASE SHORTS

odetobilliejoe210603We have a couple of notable decisions from last week for this, the traditional day we all commemorate the untimely death by suicide of Billie Joe McAllister, the 1967 first-person ballad sung by Bobbie Gentry. As Bobbie began the song, “It was the third of June, just  sleepy, dusty delta day…”

As The Independent reported in 2017, the reason for Billie Joe’s mythical death remains a mystery: “Fifty years on we’re no wiser as to why Billie Joe did what he did and in the context of the song and Gentry’s intentions, that’s just as it should be.”

Let’s try to demystify some gleanings from last week’s federal appellate decisions:

The Eighth Joins the Party: The 8th Circuit joined other circuits that have ruled on this issue, holding last week that two brothers whose cases involved the distribution of both crack and powder were eligible for the retroactive Fair Sentencing Act reduction authorized by the First Step Act, despite the fact that the powder cocaine in their cases was such that the Fair Sentencing Act did not lower their Guidelines ranges.

The Circuit ruled that Sec 404(a) of the First Step Act says that covered offenses are those whose penalties “were modified by section 2 or 3 of the Fair Sentencing Act.” Their crack penalties were reduced, even if the brothers “ultimately would be subject to the same statutory sentencing range as a consequence of” the powder cocaine. Thus, the sentencing judge now had to decide whether they should be granted a lower sentence.

The Eleventh Goes Its Own Way (Again): A week or so ago, I reported on United States v. Lopez, a 9th Circuit case that interpreted the First Step Act to dramatically expand the application of the drug offense safety valve set out in 18 USC § 3553(f).

goyourownway210603The 11th Circuit (who else) has helpfully provided an opinion going absolutely the opposite direction. Julian Garcon got the safety valve when sentenced for cocaine distribution, because he didn’t meet all three subsections of the law required to be disqualified. The government appealed, arguing that the word “and” in the statute really meant “or.”

Who would be twisted enough to think that? The 11th Circuit, that’s who. The panel held that “based on the text and structure of § 3553(f)(1), the “and” is disjunctive. Accordingly, we vacate the sentence and remand for resentencing…”

Ohio State University law prof Doug Berman said last week in his Sentencing Law and Policy blog that the case “produced a crisp circuit split on the proper interpretation of a key provision of the First Step Act on a matter that impacts many hundreds of federal drug cases every month… It is surely only a matter of time before other circuits weigh in on this important issue, and I assume this split will be deepened in the coming months and that the Supreme Court will have to take cert.”

United States v. Spencer, Case No 19-2685, 2021 U.S. App. LEXIS 15862 (8th Cir, May 27, 2021)

United States v. Garcon, Case No 19-14650, 2021 U.S. App. LEXIS 14683 (11th Cir, May 18, 2021)

Sentencing Law and Policy, In contrast to Ninth Circuit panel, Eleventh Circuit panel gives narrow reading to FIRST-STEP-amended mandatory-minimum safety valve provision (May 27)

– Thomas L. Root

It Depends on What the Meaning of ‘And’ Is – Update for May 24, 2021

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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.

GOOD NEWS FROM CONJUNCTION JUNCTION

conjunction210524The “safety valve” in 18 USC § 3553(f) allows a district court to sentence a drug defendant below an otherwise mandatory-minimum sentence if he or she meets certain criteria – such as the offense having no gun or violence, the defendant not being a leader in the offense, and the defendant truthfully admitting his or her role in the offense. But the first criterion has always been the tough one, that the defendant’s criminal history score could be no higher than one, a requirement that disqualified everyone but the most virginal of miscreants.

Congress changed all of that in the First Step Act. In expanding the number of people covered by the safety valve, Congress wrote that a defendant now must only show that he or she “does not have… (A) more than 4 criminal history points… (B) a prior 3-point offense… and (C) a prior 2-point violent offense.”

The “safety valve” was one of the only sensible things to come out of the Violent Crime Control and Law Enforcement Act of 1994, the bill championed by then-Senator Joe Biden that, a quarter-century later, has been used to brand him a mass-incarcerating racist.  The safety valve was intended to let people convicted of drug offenses as first-timers avoid the crushing mandatory minimum sentences that Congress had imposed on just about all drug dealing.

Eric Lopez got caught smuggling meth across the border. Everyone agreed he qualified for the safety valve except for his criminal history. Eric had one prior 3-point offense, and the government argued that was enough to disqualify him. Eric argued that the First Step Act amendment to the “safety valve” meant he had to have all three predicates: more than 4 points, one 3-point prior, and one 2-point prior violent offense.

andor210524Remember the fun that the media had when Bill Clinton famously dodged a deposition question by saying, “It depends on what the meaning of ‘is’ is?” That’s not so funny in the world of statutory construction. In Eric’s case, the government was contending that the First Step amendment meant that if a defendant had any one of the listed conditions – more than 4 points total, at least one 3-point prior, or at least one 2-point prior violent offense – he or she could not get the safety valve. In other words, the government was arguing that “and” means “or.” The district court, however, agreed with Eric that the conjunction “and” means “and.”

Last week, the 9th Circuit agreed. In a decision that dramatically expands the reach of the safety valve, the Circuit applied the rules of statutory construction and held that the First Step amendment was unambiguous. “Put another way, we hold that ‘and’ means ‘and.’”

The government argued that such an interpretation could lead to crazy results (by which it meant “pro-defendant” results, no doubt). The 9th was unswayed:

“We recognize that § 3553(f)(1)’s plain and unambiguous language might be viewed as a considerable departure from the prior version of § 3553(f)(1), which barred any defendant from safety-valve relief if he or she had more than one criminal-history point under the Sentencing Guidelines… As a result, § 3553(f)(1)’s plain and unambiguous language could possibly result in more defendants receiving safety-valve relief than some in Congress anticipated… But sometimes Congress uses words that reach further than some members of Congress may have expected… We cannot ignore Congress’s plain and unambiguous language just because a statute might reach further than some in Congress expected… Section 3553(f)(1)’s plain and unambiguous language, the Senate’s own legislative drafting manual, § 3553(f)(1)’s structure as a conjunctive negative proof, and the canon of consistent usage result in only one plausible reading of § 3553(f)(1)’s “and” here: “And” is conjunctive. If Congress meant § 3553(f)(1)’s “and” to mean “or,” it has the authority to amend the statute accordingly. We do not.”

angels170726It’s pretty clear that this is an example of bad draftsmanship, an amendment that gives defendants much more than the Senate intended. But that’s irrelevant. For very good reason, when the text of a statute says something plainly, courts will not check it against the legislative history to determine whether what it says is consistent with legislative intent.  It may seem to some that statutory interpretation debate has an “angels on the head of a pin” quality to it, but reading statutes to mean what they say rather than what the courts wish they said or what the legislators might have said had they been more careful is vital to avoiding judicial mischief.

This decision could be huge for a lot of people sentenced to drug offenses after the effective date of the First Step Act in December 2018.

United States v. Lopez, Case No. 19-50305, 2021 U.S. App. LEXIS 15184 (9th Cir. May 21, 2021)

Sentencing Law & Policy, Ninth Circuit panel interprets FIRST STEP amendment to statutory safety valve to greatly expand who can avoid federal mandatory-minimum sentences (May 22)

– Thomas L. Root