Tag Archives: 18 usc 924(c)

A 924(c) Conviction in 9th Circuit Ends Not With a Bang But a Whimper – Update for June 23, 2022

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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.

‘BOOM’ TIMES IN THE 9TH CIRCUIT
Rick's bomb was neither pink nor make of Creamsicles.
Rick’s bomb was neither pink nor make of Creamsicles.

In 1990, Richard Mathews set a bomb to blow up the leader of a  motorcycle gang that has expelled him (probably not for being a pacifist).

Unfortunately for everyone (except the gang leader), the bomb blew up a passerby instead of its target, seriously injuring him.

Rick was convicted of maliciously damaging property by means of an explosive in violation of 18 U.S.C. § 844(i) and of using or carrying a firearm during a crime of violence in violation of 18 U.S.C. § 924(c)(1). (In the federal government’s world, a “firearm” under § 924(c) includes a “destructive device” such as a pipe bomb filled with black powder and ball bearings).

Rick got 135 months for the § 844 violation and a mandatory 360-month consecutive sentence for the § 924(c).

Last week, the 9th Circuit vacated Rick’s § 924(c) conviction.

A conviction under § 844(i) is not categorically a crime of violence, the Circuit said, and thus cannot serve as a predicate crime for a § 924(c) conviction. Section 924(c) defines a crime of violence as an offense committed against “the person or property of another.” However, the 9th observed, a person can be convicted under § 844(i) for “using an explosive to destroy his or her own property.” As such, Section 844(i) “criminalizes conduct that falls outside Section 924(c)’s definition of ‘crime of violence.’”

The average Joe or Jane would think that blowing someone up with a homemade is very much a “crime of violence.” Even the Circuit noted,

violent170315No doubt it is strange to classify placing a bomb in an alleyway for the purpose of causing harm to another person or their property as not a crime of violence, particularly where the bomb was picked up by an innocent bystander who was seriously injured by the detonation. But that is what the law requires of us in this case. 

Rick is probably not going home any time soon. The district court will be free to adjust his § 844(i) sentence – which can span from 10 to 40 years – to achieve nearly the same end.

United States v. Mathews, Case No. 19-56110, 2022 U.S. App. LEXIS 16167 (9th Cir, June 13, 2022)

– Thomas L. Root

Supreme Court’s Final Days Include Criminal Decisions – Update for June 20, 2022

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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.

BIG CRIMINAL DECISIONS STILL PENDING WITH ONLY TWO WEEKS OF SCOTUS TERM LEFT

The Supreme Court held two opinion days last week, but the most-watched criminal cases – United States v. Taylor, Concepcion v. United States and Ruan v. United States – remain among the 18 opinions yet to be issued before the Court’s term ends on June 30.

scotus161130Most people expect the two “big” cases, New York State Rifle & Pistol Assn v. Bruen (a 2nd Amendment case) and Dobbs v. Jackson Women’s Health Organization (the possibly-leaked abortion decision) to happen on the last day. But Taylor, which concerns whether an attempted offense that would be a “crime of violence” for application of 18 U.S.C. § 924(c) – the mandatory consecutive sentence for using a gun – is a “crime of violence” if it is only attempted but not completed – has been hanging around for six months since its December argument. Concepcion, which concerns proper resentencing considerations in First Step Section 404(b) resentencing, and Ruan, which considers physician liability under 21 USC 841(a), was argued in the Court’s February sitting.

Ohio State University law professor Doug Berman wrote last week in his Sentencing Law and Policy blog that “the standard and ready explanation, of course, for why decisions in Taylor and Conception may be taking a long time is because the Justices are (perhaps deeply?) divided in these cases, and so we should expect multiple (and lengthy?) opinions. And, to add a bit of spicy speculation, I am inclined to guess that the delay is also partially a function of the Justices in these cases not being divided neatly along the “standard” ideological lines.”

rules201202The only case of interest to defendants last week was Kemp v. United States. In that case, petitioner Dexter Kemp filed a 28 USC 2255 motion in 2015. The District Court dismissed the motion as untimely, and Dix did not appeal. But three years later, he sought to reopen his 2255 under Federal Rule of Civil Procedure 60(b)(1) and (6), rules which permit a court to reopen an otherwise final judgment if certain conditions are met. A 60(b)(1) motion has to allege that a mistake was made, and must be filed within a year, Relief under Rule 60(b)(6) for any other just reason can be filed at any time, but is available only when the other grounds for relief specified in the Rule don’t apply.

Dex was right that the District Court had goofed on dismissing his § 2255 motion as untimely. In a just world, his § 2255 should be reopened, and that would be that. But in the real world, it’s not that easy.

The Supreme Court held that a judge’s error of law is a “mistake” within the meaning of Rule 60(b)(1), meaning that Dex’s motion fit under Rule 60(b)(1). Subject to the Rule’s one-year limitations period, Dex’s motion was late and had to be dismissed as untimely.

Sentencing Law and Policy, Any (spicy?) speculations about why SCOTUS has not yet decided Taylor or Conception, two little sentencing cases? (June 13, 2022)

Kemp v. United States, Case No. 21-5726, 2022 U.S. LEXIS 2835 (June 13, 2022)

– Thomas L. Root

Congress Races Glacier, And Glacier Wins – Update for May 31, 2022

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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.

NOTHIN’S HAPPENIN’ HERE

Every week, I get a lot of emails from people like this one this morning:

“I am sorry, I know that everyone sends you messages asking for information about the bills in the house and senate, but i have to ask.  Have you heard anything about the prohibiting punishment of acquitted conduct act?”

People are always just wanting “an update” on bills pending (or on bills they just imagine are pending) in Congress.

nothing160321My answer is always the same: if anything is going on with one of these bills, I will cover it in the newsletter. If I haven’t mentioned it, nothing’s going on. 

Like last week. Nothing went on last Monday. And after Tuesday’s horrific shooting in a Uvalde, Texas, school, Congress’s focus turned to anguished sound bites and to what feel-good knuckle-headed legislation might be passed in response. Think I’m over-reacting?  Ask “One-Door” Ted Cruz. Or “High-Caliber” Joe Biden.

But, as for criminal justice reform, here’s an update on legislation:

EQUAL Act: Senate Majority Leader Chuck Schumer held a news conference in front of the Second Circuit courthouse in New York City to call on lawmakers to support the EQUAL Act (S.79), which would end the sentencing disparity between crack and powder cocaine that has had a disproportionate effect on black defendants.

In September, the House passed the bill 361-66, which ends a sentencing formula that uses an 18-to-1 ratio in treating equal amounts of crack and powder cocaine. Since then, the Senate Judiciary Committee has approved the bill, sending it to the Senate floor for a vote.

The New York Daily News reported that Schumer, “who declined to describe a timeline for passage, appeared to be embarking upon a pressure campaign meant to clear space for the legislation’s approval without a fierce fight on the floor.”

Senators Rob Portman (R-OH) and Cory Booker (D-NJ) are sponsoring the bill, which has 21 cosponsors, 11 of the Republican. “We’re working together — Sens. Booker, Portman and myself — figuring out the right timeframe and the right way to go,” Schumer said last Monday. “We want to get this done as soon as we can.”

But all is not roses. At the end of April, Sen Charles Grassley (R-IA) introduced the SMART Cocaine Sentencing Act (S.4116), which cuts the crack-powder ratio to 2.5 to 1 and puts retroactivity decisions in the hands of the Dept of Justice. While the bill only has three cosponsors, it is generally seen as being intended to be a bargaining chip, to be used during floor debate to water down EQUAL.

Marijuana: Nearly every House Democrat and three House Republicans voted in April to pass the MORE Act (H.R. 3617). It would decriminalize marijuana, something 27 states and the District of Columbia have already done.

nothing190906

Meanwhile, expectations are wavering over a marijuana legalization bill in the Senate. Most of the pressure for cannabis reform is coming from state financial regulators, who last week urged Congress to pass marijuana banking reform as part of a large-scale manufacturing bill that’s currently being finalized in conference committee. In a way that would be helpful, because marijuana criminal reform has been held hostage to the problems state dispensaries have in accessing the banking system.

Experts predict, however, that the MORE Act won’t have enough Republican votes for passage. The bill faces opposition from some Democrats, including Sen Joe Manchin (D-WV), who has said that he is unsure about legalizing adult-use marijuana.

Much of the slowdown in criminal justice reform results from violent crime rates nationwide, which have cooled the reformers’ ardor. Recent polling reflects public concerns about rising crime rates and dissatisfaction with how public leaders are addressing the problem.

nothingcoming181018Guns: Note to people who email me asking when Congress is going to reform the 18 USC 924(c) possession of a gun during drug and violent crimes statute. The rising violent crime rates – not to mention mass shootings in Buffalo and Uvalde, Texas, pretty much guarantee that no one is going to call for changes in 924(c) that will benefit defendants.

New Legislation: One bill introduced last week is good for federal prisoners. The Family Notification of Death, Injury, or Illness in Custody Act of 2022 (already introduced in the House as HR 6296), would require the DOJ to establish guidelines for the Bureau of Prisons and state correctional systems to notify families of incarcerated people if their loved one has a serious illness, a life-threatening injury or if they die behind bars.

The bill’s introduction in the Senate last Thursday comes more than two years after the Associated Press reported that BOP had ignored its internal guidelines by failing to notify the families of inmates who were seriously ill with COVID. The legislation – introduced by Sens. Jon Ossoff, D-Ga., and John Kennedy, R-La. – is “the latest step by members of Congress to further oversight of the beleaguered federal prison system, which has lurched from crisis to crisis in recent years,” AP reported.

New York Daily News, Schumer calls for end to crack cocaine sentencing disparity: ‘Cocaine is cocaine’ (May 23, 2022)

S.4116, SMART Cocaine Sentencing Act

Gray DC, Cannabis legalization remains stalled on Capitol Hill (May 26, 2022)

Vigour Times, How Criminal Justice Reform Fell Apart (May 26, 2022)

AP, Senate bill would set up medical notification to inmates’ kin (May 23, 2022)

– Thomas L. Root

Was The Gun For Dove Hunting? The Jury Didn’t Say… – Update for April 22, 2022

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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 REVERSES § 924(c) CONVICTION FOR FLAWED INSTRUCTION

Rhett Irons was convicted of possession of controlled substances with intent to distribute and possessing, using or carrying a gun in furtherance of drug trafficking (18 U.S.C. § 924(c)).

dangerousgun220422Although his lawyer never objected to the jury instructions during trial, Rhett argued on appeal that while the statute required the jury to find that he possessed a firearm “in furtherance of” a drug trafficking crime, the court’s instruction allowed the jury to convict merely by finding that defendant’s possession of the gun had a “connection” to the trafficking.  That, Rhett argued, was not enough.

Last week, the 9th Circuit agreed and reversed Rhett’s conviction. Although Rhett’s failure to object meant the appellate review was for plain error only, the Circuit held that the “in furtherance of” requirement in 18 U.S.C. § 924(c)(1)(A) means more than just that “there must be a connection between the firearm” and the alleged drug trafficking offense. It means a defendant must possess the firearm with the intent that it further or advance the drug offense.

To win a case on “plain error” review, a defendant has to show a mistake, that the mistake is “plain” (or obvious), the error affected his substantial rights, and the error affected the integrity of the proceeding. The 9th ruled that because the error in the instruction “effectively removed from the jury’s consideration the only disputed issue concerning the 924(c) charge – the defendant’s intent in having the gun under his mattress while living in his home,” his substantial rights had been affected by the flawed instruction.

lawyermistake170227“Removing the key disputed issue at trial from the jury’s consideration,” the Circuit held, “certainly casts doubt on the fairness of the proceedings, even if Iron’s own counsel failed to catch the error. Indeed, counsel’s failure to detect this plain error in the supplemental instruction arguably implicates Iron’s right to effective assistance of counsel, which is a consideration that bears upon the integrity and public reputation of the proceedings… We agree that the evidence of an objective connection between the firearm and Irons’s drug trafficking was strong. But the defect here relates to the issue of Irons’s subjective intent. Although we might have found the Government’s reading of the evidence more persuasive if we were the trier of fact, we conclude that the evidence is not so overwhelming that reversal here would impugn the integrity or fairness of the proceedings.”

United States v. Irons, Case No 20-30056, 2022 US App. LEXIS 9616 (9th Cir Apr 11, 2022)

– Thomas L. Root

Procedure Matters… Innocence? Not So Much – Update for March 24, 2022

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IN § 2255 CASES, PROCEDURE MATTERS

procedure220324Over the past three weeks, Russia has been reminded of the truth of General Omar Bradley’s old saw that “amateurs talk strategy, professionals talk logistics.” Likewise, two cases handed down last week underscore the truth that inmates talk substance, judges talk procedure.”

DeMarko Collins pled guilty to being a felon in possession under 18 USC § 922(g)(1). DeMarko’s presentence report determined he had two prior felony convictions for crimes of violence, including a Missouri 2nd-degree robbery, which enhanced his Guidelines advisory sentencing range under USSG § 2K1.1.

Five months before DeMarko’s sentencing hearing, a divided 8th Circuit panel held in United States v. Bell that Missouri 2nd-degree robbery was not a crime of violence, but DeMarko’s attorney goofed and did not cite the decision in opposing the § 2K2.1 enhancement. The district court granted the government’s motion for an upward variance, and sentenced DeMarko to 216 months.

DeMarko appealed his sentence. Relying on Bell, he argued the § 2K2.1 enhancement should not have applied. But while his appeal was pending, the 8th Circuit en banc overruled Bell and held that a Missouri 2nd-degree robbery is a violent felony after all. Because of that, Demarko lost his appeal.

stupidlawyr191202DeMarko then filed a § 2255 post-conviction motion, arguing that his lawyer should have cited Bell, which had been controlling authority and good law at the time of his sentencing. The district court denied the § 2255, finding that even if DeMarko was right that his lawyer should have raised Bell at sentencing, “he cannot demonstrate he was prejudiced by” the error.

Last week, the 8th Circuit agreed, holding that by the time DeMarko on “direct appeal cited Bell in challenging his § 2K2.1 enhancement based on a Missouri 2nd-degree robbery conviction, Bell had been overruled… and this prior conviction was once again a predicate crime of violence under the Guidelines. Strickland prejudice ‘focuses on the question whether counsel’s deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair…’ DeMarko was not deprived of a substantive or procedural right to which the law entitles him, so he ‘suffered no legally cognizable prejudice’.”

Meanwhile, in the 9th Circuit, Cesar Gonzalez filed a 28 USC § 2244 application for permission to file a second § 2255 motion. He wanted to argue that his 18 USC § 924(c) conviction for having a gun in furtherance of a crime of violence was invalid because his predicate crime – racketeering – was no longer a categorical crime of violenceunder a new rule of constitutional law announced in the Supreme Court’s United States v. Davis decision.

Last week, the 9th Circuit shot Cesar down, finding that his new Davis argument was not “previously unavailable” as required by 28 USC § 2255(h)(2).

When Davis was handed down, Cesar had filed his § 2255 motion, and the government had responded. Cesar, however, had not yet filed his reply. The 9th Circuit ruled that to show the argument was “previously unavailable” to him, he had to show “that the real-world circumstances that he faced prevented him, as a practical matter, from asserting his claim based on a new rule of law in his initial habeas proceeding.”

The Circuit said it “recognized that pro se prisoners face unique difficulties when litigating habeas relief or anything else, and that language barriers, as Cesar cited in his case, add to those difficulties.” However, the 9th ruled, “nothing in the text or context of AEDPA‘s previously-unavailable-claim requirement suggesting that this limited exception to the otherwise broad prohibition against filing second or successive habeas proceedings was intended to be applied subjectively.”

innocent210504The 9th concluded that Cesar could show that his new Davis argument was unavailable during his initial § 2255, where Davis issued shortly before Cesar filed his reply brief and a few months before the § 2255 was decided. Cesar had the facts that he needed for his claim, the Circuit held, and no systemic or external barrier prevented him from presenting his claim in his initial habeas proceeding.

So it did not matter that Cesar stood convicted of a § 924(c) offense unlawfully, because a hypothetical reasonable inmate would have tried to raise Davis in the nearly-completed § 2255 proceeding.

Substance? Who cares about substance when procedure triumphs?

Collins v. United States, Case No. 20-3662, 2022 U.S. App. LEXIS 6725 (8th Cir., March 16, 2022)

Gonzalez v. United States, Case No 20-71709, 2022 U.S. App. LEXIS 6943 (9th Cir., March 17, 2022)

– Thomas L. Root

Is Trying To Be Violent All It Takes? – Update for December 8, 2021

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AIDING, ABETTING, ATTEMPTING, AND GUNNING

drugripoff211208Gary D. Harris got convicted of aiding and abetting 2nd-degree murder, aiding and abetting attempted robbery, and aiding and abetting using or carrying a firearm during and in relation to a crime of violence. He got hammered: 420 months for the aiding and abetting murder, and an extra 60 months for the 18 USC § 924(c) charge.

Gary filed a post-conviction habeas corpus motion under 28 USC § 2255, but it failed like most of them do. After United States v. Davis changed the landscape on what crimes were and were not crimes of violence, Gary filed a second 28 USC § 2255 motion.

A second § 2255 is not easy to file. A prisoner must get permission from the Court of Appeals to file one, and the standards are tough: you’ve got to have newly-discovered evidence that pretty much exonerates you or be the beneficiary of a new Supreme Court constitutional decision that is retroactive.

Gary asked the 6th Circuit for permission. Last week the 6th Circuit turned him down.

aidabett211208Gary argued his consecutive 60-month sentence had to be vacated because the district court might have imposed that sentence under the unconstitutionally vague “residual clause.” What’s more, Gary argued, his § 924(c) sentence couldn’t fall under the “elements clause” either, because neither his conviction for aiding and abetting second-degree murder nor his conviction for aiding and abetting attempted robbery could have constituted  a “crime of violence.”

It’s an appealing argument. It seems like you could aid or abet a violent crime without committing an act of violence yourself, like loaning your car to someone who uses it to rob a bank. But the Circuit didn’t buy it. “To justify relief under § 2255,” the 6th said, Gary had to not only show “constitutional error but also harm that he suffered from that error.” He had to “establish that he could not have been sentenced to the consecutive 60-month prison term under § 924(c)(3)’s elements clause. Because the 18 USC § 2113 crime of aiding and abetting attempted robbery necessarily constitutes a crime of violence,” the Court said, Gary cannot do that.

So aiding and abetting and attempted crimes of violence are themselves violent. And the Garys of the world lose. Right?

corso170112As Lee Corso might say, “Not so fast, my friend.” Yesterday, the Supreme Court heard argument in United States v. Taylor, where the issue is whether an attempt to commit a Hobbs Act robbery is a crime of violence. The outcome of that case could reopen the aiding and abetting/attempt issue for hundreds, if not thousands, of inmates.

Justin Taylor was a Richmond, Virginia, pot dealer who robbed his buyers. This was a business model with great short-term results, but lousy for building customer loyalty. In August 2003, Justin and his sidekick planned just such a robbery. Justin sat in the getaway car while his partner pulled off the heist. The buyer was unwilling to turn over his money, so Justin’s buddy shot him dead. Justin and his partner fled without the money.

Justin was convicted of Hobbs Act conspiracy and a crime of violence under § 924(c). He got 20 years for the conspiracy and another ten for using a gun during a crime of violence.

violent160620After Davis, Justin filed a § 2255 motion, arguing that his crime – because it was a mere attempt – was not a crime of violence. That meant that the 10-year sentence for using the gun would have to be thrown out. The U.S. Court of Appeals agreed, vacating Justin’s § 924(c) conviction. “Because the elements of attempted Hobbs Act robbery do not invariably require ‘the use, attempted use, or threatened use of physical force,’ the offense does not qualify as a ‘crime of violence’ under § 924(c),” the appeals court said.

At yesterday’s argument, the Government complained that the Fourth Circuit “has excised from § 924(c) a core violent federal crime, based on the imaginary supposition that someone might commit it with a purely non-threatening attempted threat and yet somehow still come to the attention of law enforcement and be prosecuted.”

But just how imaginary would such a supposition? That question consumed the argument session.

Chief Justice John Roberts asked at one point just what charges Woody Allen’s character in “Take the Money and Run” would have faced for handing the note “I have a gub” to the teller. Justin’s lawyer, Michael Dreeben, said the Woody Allen character’s actions would violate the Hobbs Act. “An attempt that fails is still prosecutable as an attempt,” Dreeben said.

Jail151220As always, the Government predicted the collapse of the judicial system and wholesale release of inmates if Justin Taylor’s view prevailed. Justice Sonia Sotomayor was justifiably skeptical, pointed out that whether an attempt could support a § 924(c) was a question of enhancement, not convictability (my word, not the Justice’s). She said the government made it sound like a win for the defense would mean letting out “all of these horrible criminals,” but she emphasized that defendants still face substantial sentences on other charges, like Justin’s 20-year conspiracy term that isn’t at issue here.

Justice Brett Kavanaugh worried about a ruling for the defense. “Congress obviously… imposed this because there’s a huge problem with violent crime committed with firearms and thought that the sentences were not sufficient to protect the public,” he said.

Harris v. United States, Case No. 21-5040, 2021 U.S. App. LEXIS 35494 (6th Cir., December 1, 2021)

United States v. Taylor, Case No. 20-1459 (Supreme Court, oral argument December 7, 2021)

Bloomberg Law, Violent-Crime Definition Gets High-Court Hearing in Gun Case (December 7, 2021)

– Thomas L. Root

Nothing Extraordinary about a 312-Year Robbery Sentence, 3rd Circuit Says – Update for September 8, 2021

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A LARGELY UGLY COMPASSIONATE RELEASE DECISION FROM THE THIRD CIRCUIT

guns200304The 3rd Circuit last week joined eight other federal circuits in holding that an inmate-filed compassionate release motion is not limited by the Sentencing Guidelines § 1B1.13 policy statement. That was the good news, the only good news.

Eric Andrews is serving a 312-year sentence for a string of armed robberies, with almost all of that time due to stacked 18 USC § 924(c) convictions. If he had been sentenced after passage of the First Step Act, his § 924(c) sentences would have amounted to 91 years, still impressive but possibly a survivable sentence. But because the First Step changes were not retroactive, Rick’s only course was to file a compassionate release motion under 18 USC § 3582(c)(1)(A)(i) arguing that his excessive sentence length and the First Step Act changes were the “extraordinary and compelling reasons” supporting grant of the motion.

The district court denied Rick, and last week, the 3rd Circuit agreed.

The appeals court held that “the duration of a lawfully imposed sentence does not create an extraordinary or compelling circumstance… Considering the length of a statutorily mandated sentence as a reason for modifying a sentence would infringe on Congress’s authority to set penalties.”

41475-Forever-Is-A-Long-TimeLikewise, the 3rd ruled, a nonretroactive change to mandatory minimums “cannot be a basis for compassionate release. In passing the First Step Act, Congress specifically decided that the changes to the 924(c) mandatory minimums would not apply to people who had already been sentenced.” Applying rules of statutory construction to the First Step Act, the Circuit said, “we will not construe Congress’s nonretroactivity directive as simultaneously creating an extraordinary and compelling reason for early release. Such an interpretation would sow conflict within the statute… We join the 6th and 7th Circuits in reaching this conclusion.”

Ohio State University law professor Doug Berman, writing in his Sentencing Law and Policy blog, makes a telling point:

The very first sentence of the Andrews ruling has a Kafka-esque “only in America” quality to it: “Eric Andrews is serving a 312-year sentence for committing a series of armed robberies when he was nineteen.” That a person at age 19 can get a 312-year sentence for a series of robberies strikes me as quite extraordinary and quite compelling, but the district court did not see matters that way. Specifically, as described by the panel opinion, the district court decided that “the duration of Andrews’s sentence and the nonretroactive changes to mandatory minimums could not be extraordinary and compelling as a matter of law.” Of course, there is no statutory text enacted by Congress that sets forth this “as a matter of law.” But the Third Circuit panel here blesses the extra-textual notion that courts can and should invent some new categorical exclusions “as a matter of law” regarding what might qualify as extraordinary and compelling.

noquorum191016The Second, Fourth, Fifth, Ninth and Tenth Circuits have held the contrary to this opinion, which perhaps puts some wind in Thomas Bryant’s pending petition to the Supreme Court for review of the 11th Circuit’s denial of his compassionate release motion. That petition is ripe for decision at the end of this month at the Supreme Court’s “long conference.” Of course, a reconstituted Sentencing Commission could solve this circuit split by rewriting USSG § 1B1.13, but that would require that the Sentencing Commission first be repopulated with new members. President Biden has thus far shown no more interest than did his predecessor in appointing new members. By December, the Commission will have been without a quorum for three years.

United States v. Andrews, Case No 20-2768, 2021 US App LEXIS 26089 (3d Cir. August 30, 2021)

Sentencing Law and Policy, Third Circuit invents some extra-textual limits on what might permit a sentence reduction under 3582(c)(1)(A) (August 30, 2021)

– Thomas L. Root

“What Is It Exactly That You Want?” Courts Ask Defendants – Update for August 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.

FUTILITY

futility180705Two decisions last week should serve as cautionary tales for people seeking a sentence break from the courts, without really being able to explain to the courts why they are seeking the break they want.

In the 7th Circuit, Mike Millis filed a 28 USC § 2241 petition for writ of habeas corpus, arguing that his career-offender Guidelines enhancement (USSG § 4B1.1) should not have been applied in his case. As a result of his 1994 crime spree, Mike was convicted of several robbery counts, which included two 18 USC § 924(c) counts for using a gun. The § 924(c) counts, of course, were stacked. When the dust settled, Mike’s sentencing range began at 562 months.

That was too much for his judge, who departed downward to a still-shocking 410 months.

In the intervening 26 years, Mike filed and lost a 28 USC § 2255 motion in his Eastern District of Kentucky home. But well after that, the 6th Circuit held in a different case that one of the prior convictions relied on to make Mike a Guidelines career offender – an Ohio aggravated assault conviction – could not be used as a basis for career offender. Because the change in the law did not open the door to a new § 2255 motion. But Mike relied on the § 2255(e) “saving clause,” which lets prisoners use a § 2241 motion where the § 2255 would be “inadequate or ineffective to test the legality of his detention.”

Last week, the 7th Circuit shot him down. One of the standards for being able to use the 28 USC § 2255(e) saving clause, the Circuit said, is that the prior conviction or sentence has to constitute a miscarriage of justice. Here, Mike’s sentence range had started at 567 months. But if he had not been a career offender, the Circuit said, his 410-month sentence would still have fallen within what his non-career sentencing range would have been.

miscarriage-of-justiceBecause of that, the sentence – although the career offender status was wrong – was not a miscarriage of justice. This made the § 2255(e) saving clause unavailable to Mike.

So what was Mike’s point? I am guessing that he was looking to get rid of the career-offender label, because he is or will soon seek to get his second § 924(c) conviction cut from 300 months to 60 months, which is all he could have gotten under the law since passage of the First Step Act made clear that the 300-month mandatory sentence only applies after a prior conviction for a § 924(c) offense. Knocking 240 months off his sentence would let Mike out after having only served 260-some months (21 years) in prison.

Talk about soft on crime!

Meanwhile, over in the 8th Circuit, Brett Corrigan got a mandatory-minimum sentence of 60 months in prison, based on quantity of drugs involved in his case. At sentencing, his district court gave him a 2-level enhancement under USSG § 2D1.1(b)(1) for possessing a dangerous weapon, which gave him an advisory sentencing range of 60 to 71 months in prison. The judge gave him 60 months, the bottom of the range, (which, incidentally, was his mandatory minimum sentence).

softoncrime190307That did not stop Brett, who appealed the 2-level enhancement to the Court of Appeals. Last week the 8th Circuit denied him any relief. “Nothing we do here will affect Corrigan’s sentence, meaning that we lack the ability to provide any effectual relief.,” the Circuit said. “Win or lose, it makes no difference—his sentence will remain 60 months because of the mandatory minimum. In jurisdictional terms, Corrigan lacks a cognizable interest in the outcome, which means that there is no longer a live case or controversy under Article III.”

So why bother appealing? I suspect what Brett was fighting for was to get the 2-level gun enhancement lifted, because the enhancement made him ineligible to take the Bureau of Prison’s Residential Drug Abuse Program. The RDAP would entitle him to another 12 months off his sentence under 18 USC § 3621(e)(2)(B), meaning that Brett very much had something at stake here. It’s just that the courts generally seem not to appreciate the adverse effects that enhancements like that – which often get added on the flimsiest of evidence – have on a defendant’s prison term.

Millis v. Segal, Case No. 20-1520, 2021 U.S. App. LEXIS 22349 (7th Cir., July 28, 2021)

United States v. Corrigan, Case No. 20-1682, 2021 U.S. App. LEXIS 22166 (8th Cir., July 27, 2021)

– Thomas L. Root

Flip-Flops in Cincinnati – Update for June 10, 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.

IF THIS IS MONDAY, ‘YES, YOU CAN…’ IF IT’S TUESDAY, ‘NO, YOU CAN’T’

Confusion reigns in the Queen City, nestled on the banks of the Ohio River (and home of the United States Court of Appeals for the Sixth Circuit, a few professional sports teams, and some pretty good brewskis).

Four weeks ago, I reported that the 6th Circuit had decided in United States v. Owens that despite two contrary Circuit decisions – United States v. Tomes and United States v. Wills – a prisoner with stacked 18 USC § 924 sentences could rely on First Step Act changes in 18 USC § 924 as one of several extraordinary and compelling reasons for a compassionate release sentence reduction.

flipflop170920But a week ago, a different 6th Circuit panel said despite Owens, the deal is off. In a 2-1 decision, the Court ruled that “non-retroactive changes in the law [can] not serve as the ‘extraordinary and compelling reasons’ required for a sentence reduction.” However, if movants have some other fact that is an extraordinary and compelling reason for a sentence reduction, “they may ask the district court to consider sentencing law changes like this one in balancing the § 3553(a) factors — above all with respect to the community safety factor.”

Ohio State University law professor Doug Berman, writing in his Sentencing Policy and Law blog, called “the majority ruling problematic from a straight-forward application of textualism. There is absolutely nothing in the text of § 3582(c)(1)(a) that supports the contention that non-retroactive changes in the law cannot ever constitute “extraordinary and compelling reasons” to allow a sentence reduction, either alone or in combination with other factors. The majority here, presumably based on its own sense of sound policy, seems to be just inventing an extra-textual categorical limitation on the authority Congress gave to district courts to reduce sentences.”

United States v. Jarvis, Case No. 20-3912, 2021 U.S. App. LEXIS 16596 (6th Cir. June 3, 2021)

Sentencing Law and Policy, Split Sixth Circuit panel further muddles what grounds can contribute to basis for sentence reduction under § 3582(c)(1)(a) (June 3, 2021)

– Thomas L. Root

Virus or No, The World Keeps Turning on Hobbs Act and FSA – Update for March 31, 2020

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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.

MEANWHILE, A COUPLE OF IMPORTANT FAIR SENTENCING ACT/HOBBS ACT CASES…

Two appellate cases handed down last week would have been headliners any other time except for now, with the coronavirus crowding everything else out of the news.

crackpowder160606In 2001, Brandon Gravatt was convicted of conspiracy to possess with intent to distribute 5 kilograms or more of powder cocaine and 50 grams or more of crack cocaine (21 USC § 846). He pled guilty to the dual-object drug conspiracy charge, facing sentences of 10 years-to-life for the coke and 10-to-life for the crack. The court sentenced him to just short of 22 years.

After the Fair Sentencing Act became retroactive due to the  provision at Section 404 of the First Step Act (passed in December 2018), Brandon filed for a sentence reduction because the crack statutory minimum had fallen to five years. But the District Court denied his motion, because the 10-to-life sentence for the powder cocaine remained the same.

Last week, in a decision awaited by a lot of people, the 4th Circuit reversed. It held that even in a multi-object conspiracy like Brandon’s – where the penalties of one object (possession of crack) were reduced by the FSA while the penalties of the other (powder cocaine) were not – if the crack minimum sentence fell, Brandon was eligible for resentencing. The Circuit said because Brandon’s “sentence involved a covered offense under Section 404(a) [of the First Step Act], the district court should have reviewed Gravatt’s motion on the merits, applying its discretion under Sections 404(b) and (c).”

Of course, the 4th said, the quantity of powder cocaine in Gravatt’s case could mean the district court would decide not to lower his sentence. “Our decision today,” the Circuit said, “only requires that Gravatt’s sentence receive a substantive review. It should not be construed as expressing any view on how the district court should rule.”

Meanwhile, the 11th Circuit held last week that a Hobbs Act robbery was not a crime of violence for purposes of determining whether a defendant was a “career offender” under Chapter 4B of the Guidelines.

violence151213Joining the 6th and 9th Circuits, the 11th held that because the Guidelines definition of robbery and extortion only extends to physical force against persons, while under Hobbs Act robbery and extortion, the force can be employed or threatened against property as well, the Hobbs Act (18 USC § 1951) is broader than the Guidelines definition, and thus cannot be a crime of violence for career offender purposes.

Unfortunately, because 18 USC § 924(c) does include threats to property as well as to people, the 11th Circuit holding does not apply to defendants with § 924(c) counts supported by Hobbs Act convictions.

United States v. Gravatt, 2020 U.S. App. LEXIS 9053 (4th Cir Mar 23, 2020)

United States v. Eason, 2020 U.S. App. LEXIS 9096 (11th Cir Mar 24, 2020)

– Thomas L. Root