Tag Archives: 28 usc 2255

The Error Is Harmless If You Really Did It – Update for March 5, 2026

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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.

HARMLESS ERROR MATTERS, NOT CATEGORICAL MISSTEP, 1ST SAYS

Anthony Shea was charged back in the 90s with a series of robberies that featured liberal use of firearms. He was convicted of a Hobbs Act conspiracy, several Hobbs Act robberies and two 18 USC § 924(c) offenses for using and carrying a gun during the crimes.

Tony’s jury was instructed that the predicate crime of violence for the two § 924(c) charges could be either Hobbs Act robbery or conspiracy to commit the same. The jury returned a general verdict of guilty as to all counts, including the two § 924(c) counts and their predicates, meaning that no one could tell on which predicate – the robbery or conspiracy –  the § 924(c)s were based.

However, in 2015, years after Tony’s conviction, the Supreme Court decided in Johnson v. United States that the residual clause in the Armed Career Criminal Act (18 USC § 924(e)(2)(B)) definition of “violent felony” was unconstitutionally vague. Later, SCOTUS held in United States v. Davis that the logic of Johnson extended to § 924(c), holding that the residual clause “crime of violence” under § 924(c)(3)(B) was unconstitutionally vague as well.

Tony got permission to file a successive 28 USC § 2255 motion based on Johnson in order to challenge his two § 924(c) convictions and his sentences. He argued that the court has to assume that the jury took the categorical approach, meaning that the facts of his particular robberies didn’t matter, just the elements of the crime. Because the jury could have convicted him of § 924(c) offenses based on a conspiracy – and conspiracies didn’t count as violent after Davis – he argued that the two § 924(c) counts had to be vacated.

The District Court disagreed. It found the error harmless, because Tony was convicted of the two robberies in which the guns were used, and those substantive offenses “did, and still do, qualify as predicate ‘crimes of violence’ under [s]ection 924(c).” The District Court thus held that the jury’s verdicts on the § 924(c) convictions “remain valid.”

Last week, the 1st Circuit agreed. Ordinarily, to determine whether it is harmless error for a district court to instruct a jury on “multiple theories of guilt, one of which is improper,” a court must examine the factual circumstances and the record before it in evaluating the effect of the error on the jury’s verdict. The Circuit rejected Tony’s approach, holding that there is “no reason why a different approach to harmless error review would be required or appropriate when the instructional error results from a district court’s erroneous instruction as to whether an offense qualifies as a ‘crime of violence’ under the categorical approach.

“The categorical approach,” the Circuit said, “is used to determine whether a court has erred in instructing the jury about whether a predicate offense constitutes a ‘crime of violence.’ But the determination on direct appeal of whether that error was harmless turns on whether, ‘in the setting of a particular case,’ that error may be ‘so unimportant and insignificant that [it] may… be deemed harmless.’”

Here, the jury found beyond a reasonable doubt that Tony had committed the robberies. Therefore, any error in not instructing the jury that the robberies – not the conspiracy – was the underlying crime of violence supporting the § 924(c) convictions was harmless.

Shea v. United States, Case Nos. 22-1055, 2026 U.S.App. LEXIS 5327 (1st Cir. February 23, 2026)

~ Thomas L. Root

Santa Courts Deliver Post-Conviction Coal – Update for December 18, 2025

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

A CHRISTMAS LIST

A few appellate court holdings for your stocking (even if they seem to be lumps of coal):

Incompetence Here and There: Airrion Blake was convicted of tax fraud. Two months after his conviction, his attorney was thrown off the roster of attorneys allowed to practice in the 7th Circuit after “flagrantly disregard[ing]” the district court’s instructions in a civil case that “raise[d] serious concerns about his professional competence.”

Airrion filed a 28 USC § 2255 petition claiming that his lawyer’s disciplinary proceedings should negate any presumption that he was professionally competent in Airrion’s case. Last week, the 7th Circuit disagreed, reaffirming that ineffective assistance claims require case-specific analysis.

The court found that while Airrion’s lawyer misunderstood Brady obligations, Airrion failed to show how that prejudiced his case. Airrion admitted on the stand that his tax return was false, and ample evidence supported his conviction. Thus, there was no reasonable probability that correcting counsel’s errors would have changed the outcome.

Blake v. United States, Case No. 23-2399, 2025 U.S.App. LEXIS 32146 (7th Cir. Dec. 9, 2025)

No Need To Double Count: Jefferson Washington was convicted of a drug offense in 2020. His sentencing range would have been 24-30 months, but he was held to be a Guidelines career offender, making his sentencing range 151-188 months.

A few years later, the 4th Circuit held that Jeff’s predicate offenses did not qualify for career offender status. Jeff filed for compassionate release under 18 USC § 3582(c)(1)(A), arguing that the gross sentence disparity between what he got in 2020 and what he would get today was an extraordinary and compelling reason for a reduction, and that the same disparity should be considered when the court weighed the 18 USC § 3553(a) sentencing factors.

The district court denied relief.

It agreed that Jeff had demonstrated that he had an extraordinary and compelling reason for a sentence reduction based on the “enormous disparity” between the career offender Guidelines range at sentencing and what it would be if his career offender status were eliminated. Despite that determination, the court ruled that compassionate release was not justified under the § 3553(a) sentencing factors because of Jeff’s “significant criminal history” – dating back some thirty years and including a collection of non-violent and violent offenses showed “disrespect for the law.” The court held that Jeff’s commendable rehabilitative efforts weren’t enough to convince it that he posed ‘a reduced danger to himself or his community.” Jeff argued that his time served was more than the top end of his guidelines if he had been sentenced today, but the court didn’t discuss that argument in its decision denying Jeff’s compassionate release motion.

“We… reject Washington’s argument that the court abused its discretion by failing to explicitly address the sentencing Guidelines range disparity… as part of its § 3553(a) discussion,” the 4th Circuit held. “[D]istrict courts are not required to restate views expressed in its “extraordinary and compelling” analysis in its § 3553(a) analysis. And… on appellate review… we consider the totality of [the court’s] statements rather than view them in isolation.”

The 4th ruled that the “district court’s reasoning demonstrates that it was fully aware of the extent of the sentencing disparity at issue here and that it factored in Washington’s favor… [N]othing required the district court to… readdress this same point when considering the other statutory factors relevant to its decision whether to grant relief… [B]ecause the record demonstrates that the district court understood and explicitly engaged with Washington’s Guidelines range disparity as part of its decision to deny relief, it was not required to repeat the same information twice.”

United States v. Washington, Case No. 23-7036, 2025 U.S.App. LEXIS 32550 (4th Cir. Dec. 12, 2025)

Hurts so Bad: If there is any recurring theme in Bureau of Prisons prisoner care, it’s the BOP’s consistent failure to give any credence to inmate health complaints, too often until it’s much too late to prevent permanent injury or death.

Troy Williams filed a compassionate release motion claiming that the Bureau of Prisons had failed to adequately treat his medical condition by not testing his blood enough to ensure the medicine was working and that lockdowns were preventing treatment.

The district court found that the BOP medical treatment may have been inadequate, but it wasn’t that inadequate. Just sort of inadequate, and not inadequate enough to warrant intervention. Last week, the 6th Circuit agreed.

The Circuit said that while the BOP provided a declaration from its Health Services clinical director, Troy provided no “expert medical testimony” to connect sporadic and inadequate blood testing with any harm to his health. The evidence showed that even during a period with less than the recommended monthly testing, his numbers remained within an acceptable range and his doctors did not adjust his drug dosage.“ Given the overall record, the 4th said, the district court did not clearly err in finding that the frequency of Williams’s blood testing did not present a “risk of serious deterioration” to his health.

Troy also argued that lockdowns were preventing the facility from adequately treating him, but his medical records showed only one blood test was missed. He cited a third-party investigation of the prison that reported that frequent lockdowns interfered with medical care. As the government points out, however, there is only one documented instance in Williams’s voluminous medical records of a lockdown interfering with his blood testing. The BOP’s declaration and medical records got more credit than the third-party report, a decision that the appellate court held was not clearly erroneous.

The suggestion that compassionate release movants may need their own expert witnesses to counter the BOP’s self-serving medical declarations is troubling, raising a financial bar to relief that not many people can afford to overcome.

United States v. Williams, Case No. 25-3241, 2025 U.S.App. LEXIS 32556 (6th Cir. Dec. 12, 2025)

~ Thomas  L. Root

Low Sentence Undoes § 2255 Prejudice – Update for December 9, 2025

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LAWYER’S ERROR ON GUIDELINES NOT ALWAYS PREJUDICIAL, 11TH SAYS

In 2016, Cecil Buckner pled guilty to several Hobbs Act violations and 18 USC § 924(c) counts. The presentence report classified him as a Guidelines career offender because Cecil had two prior felony convictions for a controlled substance offense. The combined statutory minimum sentence for his § 924(c) convictions was 384 months. The PSR calculated a career-offender range of 535 to 572 months’ imprisonment. Without the career-offender classification, Cecil’s guideline range would have been 504 to 534 months.

At Cecil’s sentencing, no one objected to the PSR. The district court adopted it as its findings of fact and imposed a 414-month prison sentence, reducing it by 121 months because the § 924(c) mandatory sentence was so long that it amounted to an essentially life sentence.

Later, in a 28 USC § 2255 petition, Cecil argued that the PSR was wrong in classifying him as a career offender and that his lawyer had been ineffective for failing to object to the error. Without the mistake, Cecil says, the bottom of his Guidelines range would have been 31 months lower.

It has always been generally accepted that an incorrect Guidelines calculation is enough to show § 2255 prejudice, that is, a reasonable probability of a different outcome. But last week, the 11th Circuit said this presumption is not carved in stone.

The Circuit held that the application of an erroneous Guideline range may not be dispositive on the prejudice prong when the district court gives “a detailed explanation… mak[ing] it clear that the judge based the sentence… on factors independent of the Guidelines.” Here, the district court sentenced Cecil based on factors independent of his career-offender classification, imposing a sentence of 414 months of imprisonment, only 30 months more than the mandatory 384 months for the two § 924(c)s.

Because the district court arrived at Cecil’s sentence by balancing his life expectancy with the “terror” and “fear” that he inflicted upon his victims, the 11th held, Cecil had “not established a reasonable probability that his sentence would have been different if counsel had objected to his career-offender classification.”

Buckner v. United States, Case No. 24-10001, 2025 U.S.App. LEXIS 31479 (11th Cir., December 3, 2025)

~ Thomas L. Root

SCOTUS Oral Argument Lacks Compassion for Compassionate Release Cases – Update for November 17, 2025

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

ARE YOU DISRESPECTING ME?

An uncomfortable number of Supreme Court justices last Wednesday questioned whether the United States Sentencing Commission overstepped its authority when it amended USSG § 1B1.13(b)(6) to hold that changes in mandatory minimum laws – even when not retroactive – and concerns about actual innocence could be part of a court’s consideration when weighing an 18 USC § 3582(c)(1)(A) compassionate release motion.

I learned as a young lawyer (many years ago) that trying to predict the outcome of an appellate case based on the oral argument was a fool’s errand. Still, the nearly three hours of argument last Wednesday on what should be or should not be extraordinary and compelling reasons judges must consider in granting § 3582(c) sentence reductions provided little reason for optimism.

The issue was whether extraordinary and compelling reasons include factors like trial errors or nonretroactive changes in the law.  Lawyers for Daniel Rutherford and John Carter, two inmates seeking such sentence reductions, argued that the Commission was within its legal authority to say that courts could consider whether the First Step Act’s nonretroactive changes to gun and drug mandatory minimums would have resulted in lesser sentences in their cases.

In a third case, Fernandez v. United States, a district court had granted Joe Fernandez compassionate release in part because the judge felt “disquiet” about the conviction due to questions about whether the witness who had fingered Joe had lied to save his own skin. The 2nd Circuit Court of Appeals rejected the compassionate release, arguing that Joe’s innocence claim should have been brought up in a 28 USC § 2255 habeas challenge instead.

A § 3582(c)(1) sentence reduction, known a little inaccurately as “compassionate release,” permits courts to reduce criminal sentences in certain cases. Before 2018, the Bureau of Prisons was the only entity that could file a motion for such consideration, but the First Step Act eliminated that requirement. The Sentencing Commission is charged by 28 USC § 994(t) with the responsibility for defining what constitutes an extraordinary and compelling reason, and has expanded such to include medical conditions, family circumstances and age. The compassionate release guideline amendment in November 2023 adopted a broader view of compassionate release factors that included changes in the law that would have made a prisoner’s sentence much shorter if those changes had been in force when he got sentenced.

During Wednesday’s arguments, the only Justice of the nine expressing sympathy for Rutherford, Carter, and Fernandez was Ketanji Brown Jackson. All of the others seemed concerned that the changes in USSG § 1B1.13(b)(6) thwarted Congress’s will, would result in a flood of compassionate release motions, and would permit an end-run on § 2255.

Jackson maintained that the § 2255 and compassionate release considerations were not mutually exclusive. Instead, Jackson said compassionate release was intended to work as a safety valve.

“The question is, ‘safety valve for what?” Justice Elana Kagan countered. “Not every safety valve is a safety valve for everything.”

Justice Sonia Sotomayor said a district judge’s doubts about a jury verdict shouldn’t be used as a factor in compassionate release claims. “It happens to every district court judge,” she said. “There’s a case where you really struggle, but can we, in the facts of this case, denote that that is an extraordinary circumstance?”

Justice Neil Gorsuch contended that the judge’s own feelings, even if reasonable, should have nothing to do with the defendant’s circumstances for compassionate release. “I thought, in our legal system, the jury’s verdict on the facts is not something a court can impeach unless it’s clearly erroneous,” Gorsuch said. He suggested that the Commission had been “disrespectful” by substituting its own position on retroactivity for Congress’s.

In the Fernandez case, the Court appeared uneasy with allowing judges to consider factors that also fall under the federal habeas statute. Kagan said that habeas claims face harsh limitations and questioned whether inmates might use compassionate release as an end-run around those prohibitions.

Justice Samuel Alito observed, “The First Step Act was obviously heavily negotiated… and retroactivity is, of course, always a key element in the negotiations. Congress specifically says this is not going to be retroactive to those cases where sentences have already been imposed. And then the [Sentencing] Commission, though, then comes in and says we’re now going to give a second look for district judges to revisit those sentences…”

Justice Amy Coney Barrett asked whether a judge’s disagreement with the mandatory minimums could be enough justification for a compassionate release grant. David Frederick of Kellogg Hansen Todd Figel & Frederick PLLC, representing Rutherford, replied that even if a judge thinks a sentence is too harsh or if it would have been lower after the sentencing reforms, the Sentencing Commission’s guidelines require other factors, like a prisoner’s age, health and family situation, to be part of the overall picture.

Chief Justice John Roberts worried that the Sentencing Commission was opening the floodgates to applications for compassionate release. Currently, the 3rd, 5th, 6th, 7th, 8th and D.C. circuits have ruled that the Commission’s interpretation exceeds its authority and is wrong, while the 1st, 4th, 9th and 10th circuits have allowed courts to consider the disparity between pre- and post-First Step Act sentences.

Writing in his Sentencing Law and Policy blog, Ohio State University law professor Doug Berman – who filed an amicus brief supporting Rutherford, Carter and Fernandez – was pessimistic about the outcome of the cases:

But the Justices seem poised to concoct some new legal limits on equitable sentence reduction motions, though it remains unclear exactly how they will decide to legislate from the bench in this context. There was some interesting discussion during the Fernandez case about which of various possible restrictions relating to § 2255 that the government wanted the Justices to enact. And in Rutherford/Carter, the Justices expressed in various ways which sentencing statutes they thought might create implicit limits on the bases for sentencing reductions. Just how the Justices decide to act as lawmakers and policymakers in this setting will be interesting to see.

Bloomberg Law observed, “The court’s decisions in the cases could have a chilling or stimulating effect on compassionate release petitions. The Sentencing Commission reports they have increased dramatically since passage of the First Step Act and the pandemic, with more than 3,000 filed across the country last year.”

A decision is not expected until next spring.

Fernandez v. United States, Case No. 24-556 (Supreme Court oral argument November 12, 2025)

Rutherford v. United States, Case No. 24-820 (Supreme Court oral argument November 12, 2025)

Carter v. United States, Case No. 24-860 (Supreme Court oral argument November 12, 2025)

Law360, Justices Hint Early Release Factors ‘Countermand’ Congress (November 12, 2025)

WITN-TV, Supreme Court to weigh limits on compassionate release (November 12, 2025)

Courthouse News Service, Supreme Court disquieted by increased judicial discretion over compassionate release (November 12, 2025)

Sentencing Law and Policy, Justices seem eager to concoct limits on grounds for sentence reductions, but what new policy will they devise?  (November 12, 2025)

Bloomberg Law, Justices Eye Scope of Compassionate Release ‘Safety Valve’  (November 12, 2025)

~ Thomas L. Root

Innocence, Disparity, and Judge-Made Law on Tap at SCOTUS – Update for November 11, 2025

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COMPASSIONATE RELEASE WEEK

Tomorrow, federal compassionate release takes center stage as the Supreme Court hears oral argument in Fernandez v. United States and Rutherford v. United States.

What Does Compassion Have to Do With Innocence?      Fernandez asks whether a combination of “extraordinary and compelling reasons” that may warrant a discretionary sentence reduction under 18 USC § 3582(c)(1)(A) can include reasons that might also be a basis for a 28 USC § 2255 motion to vacate a conviction or sentence (such as a complaint that defense counsel failed to raise an obvious Guidelines mistake at sentencing).

I wrote about the Fernandez case when the 2nd Circuit sent the guy back to prison in 2024, and the lengthy fact pattern is worth revisiting. Suffice it to say here that Joe’s district court acknowledged the validity of the jury’s verdict and Joe’s sentence, while nevertheless holding that “jury verdicts, despite being legal, also may be unjust” and concluding that questions about Joe’s innocence, together with the stark disparity between Joe’s sentence and those of his co-defendants, constituted extraordinary and compelling circumstances under § 3582(c)(1)(A) warranting as sentence reduction to time served.

The 2nd Circuit reversed, holding that Joe’s sentencing disparity was not an extraordinary and compelling reason to reduce his sentence “under the plain meaning of the statute,” and that concerns that Joe might be innocent had to bow to the fact that the post-conviction remedy afforded by 28 USC § 2255 “places explicit restrictions on the timing of a habeas petition and the permissibility of serial petitions… Neither of these restrictions appl[ies] to a § 3582 motion.”

The 5th and 10th Circuits agree with the 2nd  Circuit. The 1st and 9th do not.

That Was Then, This is Now:         Rutherford asks an even more basic question: whether the Sentencing Commission – which was delegated the authority by Congress to define what circumstances are “extraordinary and compelling” reasons for compassionate release under 18 USC § 3582(c)(1) – can hold that a nonretroactive change in the law (such the First Step Act’s change in 18 USC § 924(c) to eliminate stacking can be a reason for a compassionate release.

Section 403 of the First Step Act of 2018 reduced penalties for some mandatory minimum sentences for using guns in some crimes. The change, however, was not retroactive. Because of the changes, someone sentenced on December 20, 2018, for two counts of carrying a gun while selling marijuana on two different days got a minimum sentence of 30 years. The same sentence imposed two days later would have resulted in a minimum sentence of 10 years.

Under 28 USC § 994(t), the Sentencing Commission is charged by Congress with defining what constitutes an “extraordinary and compelling reason” for compassionate release. Congress placed only one limit on the Commission’s authority: “Rehabilitation of the defendant alone shall not be considered an extraordinary and compelling reason.”

In its 2023 revamping of the compassionate release guideline, the Commission adopted subsection 1B1.13(b)(6), stating that if a defendant had received an unusually long sentence and had served at least 10 years, a change in the law may be considered in determining whether he or she has an extraordinary and compelling reason for a § 3582(c)(1)(A) sentence reduction.

The Rutherford issue, simply enough, is whether the Commission exceeded its authority in making a nonretroactive change in the law a factor to be considered (along with others) in a § 3582(c)(1)(A) sentence reduction.

A RICO Claim?:   Ohio State University law professor Doug Berman noted in his Sentencing Law and Policy blog that an argument in last week’s Supreme Court argument on supervised release (Rico v. United States) goes to the heart of the issues at stake in Rutherford and Fernandez. During the argument, Justice Gorsuch observed that Congress appears to be better situated to resolve the conflict by amending the law, because “the alternative is for us to create a fugitive tolling doctrine pretty whole cloth… And so we’re going to have to come up with a whole common law doctrine here to supplement what the [law] already says.”

   xxxxxxxxxxxxxxNot that RICO…

Berman observed that the Fernandez and Rutherford circuit courts “have been inventing limits on compassionate release motions pretty much out of ‘whole cloth’ and are in the (messy) process of coming up ‘with a whole common law doctrine here to supplement what the [applicable statute] already says.’” Berman argues, “I understand why circuit courts are inclined to invent judge-made limits on compassionate release motions, but that’s not their role in this statutory sentencing context. Congress makes sentencing law based on its policy judgments, and it has also expressly tasked the expert U.S. Sentencing Commission with ‘promulgating general policy statements… [describing] reasons for sentence reduction.’ 28 USC § 994(t). If the government does not like how this law is written or gets applied, it should be making its case for legal change to Congress and/or the Sentencing Commission, not to the Supreme Court.”

Berman noted that in Koon v. United States, the Supreme Court 30 years ago said that “it is inappropriate for circuit judges to be developing a “common law” of sentencing restrictions when that’s a job only for Congress and the Sentencing Commission. That Justice Gorsuch is focused on similar concerns in another statutory sentencing context seems significant.”

Fernandez v. United States, Case No. 24-556 (oral argument Nov 12, 2025)

Rutherford v. United States, Case No. 24-820 (oral argument Nov 12, 2025)

Sentencing Law and Policy, Do Justice Gorsuch’s concerns about judge-made law foreshadow big issue in compassionate release cases? (November 5, 2025)

Koon v. United States, 518 US 81 (1996)

~ Thomas L. Root

Collateral Attack Amendments: That Which You Would Do, Do Quickly – Update for June 17, 2025

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2254/2255 AMENDMENT IS TOO LITTLE, TOO LATE

Danny Rivers was convicted in Texas state court of continuous sexual abuse of a child. After unsuccessfully seeking direct appeal and state habeas relief, Danny filed his first federal habeas corpus petition under 28 USC § 2254 (which permits the filing of a post-conviction habeas corpus motion in federal court by state prisoners who contend their convictions or sentences are unconstitutional).

The § 2254 petition is essentially a 28 USC § 2255 petition for state prisoners, but the rules governing it are close to the same for § 2255 petitions. Hence our interest…

The District Court denied Danny’s § 2254 petition in September 2018, sending him to the 5th Circuit. There, Dan got a certificate of appealability authorizing him to pursue his claim that his trial lawyer had been constitutionally ineffective in representing him.

While his appeal was pending, Danny obtained his trial counsel’s client file, which contained an exculpatory state investigator’s report he had never seen. After the 5th Circuit denied his request to add the report to the appeal record, Dan filed a second § 2254 petition in the District Court based on newly discovered evidence.

Ever since Congress passed the Antiterrorism and Effective Death Penalty Act of 1996, a prisoner’s right to file a second § 2254 or § 2255 has been severle limited. A so-called second-or-successive petition is permitted by 28 USC § 2244 only where there has been a change in constitutional law announced by the Supreme Court or new evidence that the prisoner could not have discovered before, and either event necessarily meant that no jury would have convicted the defendant because of the change in the law or exculpatory facts.

The District Court classified Dan’s second § 2254 motion as a second-or-successive habeas application under 28 USC § 2244(b) and transferred it to the 5th Circuit for authorization to file. Dan appealed, but the 5th held that the fact that his first petition was still on appeal did not permit him to end-run § 2244’s limitations on the filing of second-or-successive petitions.

Time was that we all thought you could amend a pending § 2254 or § 2255 petition even while the appeal was pending. No more, SCOTUS said last Thursday.

Writing for a unanimous court, Justice Ketanji Brown Jackson said, “Incarcerated individuals who seek to challenge their imprisonment through a federal habeas petition are generally afforded one opportunity to do so… Before a federal court can address a petitioner’s second or successive federal habeas filing on the merits, the incarcerated filer must clear strict procedural hurdles that the Antiterrorism and Effective Death Penalty Act of 1996 erects… We hold that, in general, once the district court has entered its judgment with respect to the first habeas petition, a second-in-time application qualifies as “second or successive”… triggering the requirements of 2244(b), when an earlier filed petition has been decided on the merits and a judgment exists.”

Rivers v. Guerrero, Case No. 23-1345, 2025 U.S. LEXIS 2276, 2025 LX 193063 (June 12, 2025)

– Thomas L. Root

Former BOP Officials Support Supreme Court Compassionate Release Petition – Update for May 29, 2025

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FORMER BOP OFFICIALS SUPPORT COMPASSIONATE RELEASE CERTIORARI

scotus161130A month ago, I reported that the 6th Circuit ruled that USSG § 1B1.13(b)(6), the compassionate release guideline subsection that lets courts consider overly long sentences that could not be imposed under current law, exceeded the Sentencing Commission’s authority. Several other circuits have held the same, notably the 3rd Circuit in United States v. Rutherford.

Rutherford is now before the Supreme Court on a petition for certiorari. The Justices have already relisted the case for more consideration (usually an indication that it is getting a serious look) at tomorrow’s conference.

Evidence of the Court’s interest came in Tuesday’s announcement that the Court would review a related issue, Fernandez v. United States. The issue in that case is whether whether a combination of “extraordinary and compelling reasons” supporting a sentence reduction under 18 USC § 3582(c)(1)(A) can include reasons that may also grounds for setting aside a sentence under 28 USC § 2255, the federal habeas corpus statute that can be used to attack the constitutionality of a conviction or sentence.

We'll see about that...
We’ll see about that…

In Fernandez, a district court granted the prisoner a “compassionate release” for reasons that included the court’s belief that there was substantial evidence that he was actually innocent of the murder and that his sentence was disparately long compared to those of his co-defendants (who became informants). The 2nd Circuit reversed (and ordered Joe back to prison), holding that factors that would work for a § 2255 motion could not be relied on for § 3582(c)(1)(A) compassionate release.

The Circuit’s holding was contrary to decisions of the First and Ninth Circuits, which have each held that district courts are not restricted from considering matters under 18 USC § 3582(c)(1)(A) other than the sole restriction – rehabilitation alone cannot support compasionate release – set forth in the law by Congress. The Supreme Court will decide what limits, if any, cabin a judge on what he or she may consider as extraordinary and compassionate reasons for compassionate release.

Fernandez is Rutherford’s spiritual cousin. I would not be surprised to see certiorari granted to Rutherford, and the two cases being combined for argument and decision.

Rutherford is notable for something else: Supporting petitioner Rutherford are amicus briefs, including ones filed by FAMM, six clinical law school professors, and 12 former federal judges. Most interesting may be an amicus brief by former Bureau of Prisons officials (now corrections consultants) represented by civil rights attorney Scott Lewis at Boston firm Anderson & Krieger.

prisonhealth200313Spotlighting the BOP healthcare crisis, the brief argues that expanding access to compassionate release for inmates serving unusually long sentences would benefit the BOP because “aging, unhealthy inmates consume a disproportionate share of BOP’s scarce resources, which has cascading effects on federal prison operations and the safety and security of BOP staff, as well as inmates… [a]nd the thousands of prisoners potentially eligible for compassionate release who are serving ‘unusually long sentence[s]’ with ‘gross disparity…’ are especially likely to become elderly and unhealthy or disabled in prison.”

United States v. Bricker, Case No. 24-3286, 2025 U.S.App. LEXIS 9538 (6th Cir. April 22, 2025)

Fernandez v. United States, Case No. 24-556 (certiorari granted May 23, 2025)

Rutherford v. United States, Case No. 24-820 (petition for certiorari pending)

Brief of Amici Curiae Former Bureau of Prisons Officials In Support of Petitioner, Rutherford v. United States (filed March 5, 2025)

– Thomas L. Root

An Offer You Can’t Refuse – Update for May 21, 2025

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LET’S MAKE A DEAL

letsmakeadeal250522Bad, bad Leo Brown… Well, maybe not so bad, but in bad trouble. In October 2016, Edwin Leo Brown was indicted on four counts of possession with the intent to distribute crack cocaine and a fifth count for being an 18 USC § 922(g)(1) felon in possession (F-I-P) of a gun. Leo was looking at a maximum sentence of 20 years’ imprisonment on each of the four drug charges, and up to 10 more on the F-I-P count.

Leo’s lawyer, Frank Harper, negotiated with the government, ultimately getting two plea agreements—one of which called for Leo to cooperate with the Feds and one of which did not—that both called for Leo to plead guilty only to the F-I-P count. That meant that taking either deal would limit Leo’s sentence to ten years. Harper advised Leo that he should take one of the plea agreements or the other, but Leo was skeptical. When Leo told Harper that he felt like the lawyer could have gotten him a better deal than 10 years, Harper apparently responded in exasperation, “It’s not my fault why you’re facing ten years.”

That offended Leo, who “from that moment” did not “trust [Harper’s] judgment” and told him so. The relationship deteriorated, and Harper subsequently withdrew as counsel.

Enter affable lawyer Brett Wentz. Leo liked Wentz, who agreed that Leo would face a firm sentence of 10 years if he took either plea deal, but told him that even if he did not–instead just entering an “open plea” to all counts without any–Leo’s sentencing guideline range would be the same. “In other words,” as the 4th Circuit described it, “Wentz advised Brown that he would be facing a statutory maximum of ten years’ imprisonment regardless of whether he accepted a plea offer or not.”

Leo really wanted to preserve his right to appeal, which he would have to waive under either version of the plea agreement. So after Wentz told him he’d get no more than 10 years with or without a plea deal, Leo thought it was a no-brainer. He rejected the plea offers and entered a guilty plea to all counts without benefit of a plea agreement.

harper250522At his change-of-plea hearing, the judge told Leo that he faced up to 20 years’ imprisonment on each of the four drug charges. At that point, Leo and lawyer Wentz conferred off the record. Leo then told the court he understood the penalties. The judge proceeded to tell Leo that he faced 10 years on the F-I-P. Leo again talked to Wentz off the record before telling the court he understood that potential penalty, too.

Unless there’s a plea deal that requires a particular sentence, the judge always tells a defendant during a change-of-plea hearing that even if defense counsel had given him an estimate of what the sentence might end up being, that estimate is not binding on the court. Leo’s judge told him this, but Leo “affirmed that he understood and subsequently entered an open guilty plea as to all five counts.”

You can see where this is headed, but Leo couldn’t. At sentencing a few months later, the court hammered Leo with 210 months’ imprisonment—17½ years—on all counts, an upward departure from the advisory guideline sentencing range of 87 to 108 months. Leo was not pleased.

After his sentence was affirmed on appeal, Leo filed a 28 USC § 2255 post-conviction motion arguing that Wentz provided ineffective assistance in giving Leo wrong advice on taking the plea deal.

Relying on the Supreme Court decision in Lee v. United States, the district court ruled that it would “not upset a plea solely because of post hoc assertions from a defendant about how he would have pleaded but for his [counsel’s] deficiencies.” Instead, it would look to “contemporaneous evidence to substantiate a defendant’s expressed preferences.” Based on the record, the district judge found, “even if Wentz had properly advised Brown about his sentencing exposure… Brown would not have signed the non-cooperation plea agreement with an appellate waiver and pleaded guilty to count five pursuant to the plea agreement” because avoiding having to “waivi[e] his right to appeal was more important to Brown than his sentencing exposure.”

On Tuesday, the 4th Circuit reversed the judgment, holding that Lee was the wrong standard to apply and that Leo had “demonstrated a reasonable probability that, but for Wentz’s erroneous advice regarding sentence exposure, he would have accepted the government’s offer.”

The 4th held that “the biggest distinction” between Lee and Leo’s case “is that Lee concerned an individual who accepted a guilty plea offer, while the instant appeal concerns an individual who rejected a guilty plea offer.” The Circuit said that the proper standard where a plea deal is rejected is set out in Missouri v. Frye and Lafler v. Cooper, a pair of Supreme Court decisions from 2012 that “articulated a different way to show prejudice” where a plea deal is not accepted, which is the issue in Leo’s case.

coulda250522A defendant who argues he rejected a plea offer because of ineffective assistance of counsel “need not present contemporaneous evidence to support his ineffective assistance claims,” the 4th Circuit said. Instead, a reasonable probability that a defendant would have accepted the plea offer but for counsel’s bad advice was met here by Leo’s testimony that he “would have taken the plea that the Government offered [him]” had he known he was facing a theoretical maximum of 90 years’ imprisonment, and that he believed, based on Wentz’s advice, that his “maximum exposure” when he pleaded to all five counts was “[n]o more than ten years.” The very fact that Leo pled guilty to more serious charges—namely, receiving 17.5 years’ imprisonment when the government’s plea offer offered a max of 10 years—was alone enough to show a “reasonable probability” Leo would have taken the deal, the Circuit said.

The Circuit ordered the case remanded and that Leo be offered the original 10-year deal.

United States v. Brown, Case No. 22-7105, 2025 U.S. App. LEXIS 12211 (4th Cir. May 20, 2025)

Lee v. United States, 582 U.S. 357 (2017)

Missouri v. Frye, 566 U.S. 134 (2012)

Lafler v. Cooper, 566 U.S. 156 (2012)

– Thomas L. Root

Keeping Your Eye On The Prize – Update for February 28, 2025

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

4TH CIRCUIT SAYS THAT IN A § 2244 INQUIRY, LEAVE THE PREJUDICE FOR LATER

In order to be allowed to file a second-or-successive 28 USC § 2255 habeas corpus motion, a prisoner has to meet some tough “gatekeeping” standards, that newly discovered evidence would have led a jury to find him or her innocent or that the Supreme Court had adopted a new rule of constitutional law, made retroactive to cases on collateral review, that was previously unavailable.”

threaten250228In 2008, Scott Rendelman was convicted for mailing threatening communications under 18 USC § 876. The district court instructed the jury that the government need prove only that a “reasonable person” would find Scott’s communications threatening, and the jury did so. However, 15 years later, the Supreme Court held in Counterman v. Colorado that the 1st Amendment requires the government to prove that the defendant actually had some understanding of his statements’ threatening character.

Scott, who said his many letters to government officials were just intended to show that prison does not rehabilitate people, asked the 4th Circuit for authorization to file a successive 28 USC § 2255 motion based on Counterman. The government agreed that he had satisfied the gatekeeping requirements of § 2255(h), but it argued that the court should also impose a “plausibility requirement.”

In other words, the government said, even if Counterman had been applied, Scott would have lost his jury trial. The US Attorney called on the Circuit to require Scott to show that constitutional error “had substantial and injurious effect or influence in determining the jury’s verdict, as required for relief under § 2255.”

eyesonprize250228The 4th refused the government’s demand. “The focus of our inquiry at this stage must always remain on the § 2255(h) gatekeeping standards,” the Circuit wrote. “We’ve already found that Rendelman has satisfied the § 2255(h) gatekeeping requirements. There isn’t an additional plausibility requirement he must meet… Counterman is on point. Rendelman was prosecuted for a true-threat offense. The jury wasn’t instructed that the government had to prove beyond a reasonable doubt that he subjectively intended to threaten another, and the government acknowledges that this omission was error… Whether that error warrants relief under § 2255 is a merits question for the district court to decide in the first instance when it considers Rendelman’s § 2255 motion.

In re Rendelman, Case No. 23-257, 2025 U.S. App. LEXIS 4087 (4th Cir. February 21, 2025)

Counterman v. Colorado, 600 U.S. 66 (2023)

– Thomas L. Root

2255s Motions Aren’t Compassionate (and Vice Versa) – Update for June 14, 2024

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INNOCENCE ≠ COMPASSION

paid240615Everyone knows that paying your bills on time helps you build a strong credit history. That is probably the least of a host of good reasons for not doing what New York City drug lord Jeffrey Minaya did in 2000 instead of paying a Mexican cartel the $6.5 million he owed for 274 kilos of cocaine. He decided instead to whack the two cartel members who had been sent to the Big Apple to collect.

The drug lord hired Patrick Darge to shoot the bill collectors, and Pat, in turn, subcontracted backup duties to his cousin Joe Fernandez. The two guys sent from Mexico to pick up the loot were murdered in a rather ham-handed hit, but somehow the authorities were stymied as to the identity of the perps for over a decade.

However, in 2011, after Joe had accumulated a wife and kids, a regular job, and a clean record ever since the murder he was allegedly part of, he got picked up and charged.

pantsonfire160805Joe went to trial, where the government deployed his cousin, star witness Patrick Darge, to testify against him. This was significant because no one else could put Joe at the murder scene. On cross-examination, Pat admitted that as a cooperating witness in a different case, he lied to government agents and the judge about his involvement in two prior murders, his history of credit card fraud, the extent to which he dealt drugs, his brother’s involvement in his drug dealing business, and his brother’s habit of “shooting people.” Despite Pat’s admitted prevarications, the jury believed him and convicted Joe both of an 18 USC § 1958 murder-for-hire conspiracy resulting in two deaths and use of a firearm to commit two murders in violation of 18 USC §§ 924(j)(1). Joe was sentenced to two life sentences.

Joe appealed, arguing that Pat’s history of lies meant the jury should not have believed him. Joe lost. He then filed a 28 USC § 2255 post-conviction motion, arguing he was actually innocent and that the § 924(j) conviction was erroneous in light of United States v. Davis. The court vacated the § 924(j) conviction, leaving Joe with only one life sentence to serve.

innocent161024In 2020, after about nine years in prison, Joe filed a motion for sentence reduction under 18 USC § 3582(c)(1)(A), a so-called compassionate release motion. Joe argued that his potential innocence in light of Pat’s non-credible testimony and the disparity between his life sentence and the considerably lower sentences imposed on his co-defendants were “extraordinary and compelling reasons” for a sentence reduction.

The district court was persuaded by Joe’s potential innocence and sentencing disparity grounds:

Although there is factual support for the jury’s verdict and the verdict has been affirmed, a certain disquiet remains. Did Patrick Darge sacrifice his cousin, Petitioner Fernandez, to save his brother, Alain Darge? Patrick and Alain ran to the Dominican Republic directly after the murders of Cuellar and Flores. Joe Fernandez did not. Fernandez was arrested 11 years after the murder, in his home, with his family. He was earning a living and had no record of violence. Patrick Darge had considerable motive to lie and had lied before to the Government in order to obtain more favorable treatment for himself and his brother. Additionally, the physical evidence indicated that all but one bullet fired at the scene of the crime came from a .380 caliber gun, which was the gun Darge used, despite the fact that Darge claimed Fernandez fired nearly all the shots.

The district court granted Joe’s motion, and Joe went free. Until this week, when the 2nd Circuit reversed the district court.

The 2nd held that Joe’s sentencing disparity is not an extraordinary and compelling reason to reduce his sentence “under the plain meaning of the statute.” It is not extraordinary, the 2nd held, “(indeed, it should be expected) that a defendant who proceeds to trial and is convicted receives a longer sentence than his co-defendants who plead guilty to different crimes, accept responsibility, and assist the government by cooperating.” Nor is the disparity between Joe’s sentence and his co-defendants’ sentences “compelling”. Disparities between the sentences of coconspirators can exist for valid reasons, the Circuit ruled, “such as… the offenses of conviction, or one coconspirator’s decision to plead guilty and cooperate with the government.”

As for Joe’s potential innocence claim, the appellate court held that “a specific statute will not be controlled or nullified by a general one, regardless of the priority of enactment, unless there is a “clear intention otherwise.” The post-conviction remedy afforded by 28 USC § 2255 “places explicit restrictions on the timing of a habeas petition and the permissibility of serial petitions… Neither of these restrictions appl[ies] to a § 3582 motion.” The Circuit observed:

If Congress had intended to permit defendants to circumvent the strictures of 28 USC § 2255 by making challenges to the validity of a conviction cognizable on a compassionate release motion, it would surely have said so. Absent such a clear declaration of intent, we conclude that since challenges to the validity of a conviction must be made under § 2255, they cannot qualify as “extraordinary and compelling reasons” under § 3582(c)(1)(A). Compassionate release is not a channel to habeas relief or an end run around the limitations of § 2255.

guiltyproveninnocent230807Joe may have a pretty strong argument that he is innocent, a sacrificial lamb for the sins of his cousins. But if there’s a procedural means of getting him to a point that a court can actually entertain that claim, compassionate release is not it.

United States v. Fernandez, Case No. 22-3122-cr, 2024 U.S. App. LEXIS 14133 (2d Cir. June 11, 2024)

United States v. Davis, 588 U.S. 445 (2019)

– Thomas L. Root