Tag Archives: 3582(c)(2)

A Little Post-Hoc Factfinding Upends a Sentence Reduction – Update for August 30, 2017

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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.

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KEEPING THE PROMISES YOU INTEND TO KEEP

kept170830George Stephanopoulos famously defended his former boss, President Bill Clinton, as a guy who had “kept all of the promises he intended to keep.” You could forgive inmates seeking a reduction of sentence under 18 USC 3582(c)(2) for feeling the same way about the Supreme Court.

Not that the Court should get all of the blame. Sec. 3582(c)(2) is one of those limited exceptions to the general rule that when a conviction is final, it is final. Congress designed the exception into the Sentencing Reform Act of 1984, providing that when the Sentencing Commission changed a sentencing guideline after a defendant’s conviction was final and specifically provided that the change should be retroactive to final convictions, an inmate could petition the court to apply the change. The district court could apply it if the effect would be to reduce the sentence, but even then the judge retained discretion whether to apply it or not.

Those are a lot of hoops through which a defendant must jump. Many have succeeded, inasmuch as the Sentencing Commission has reduced drug quantity guidelines three times since 2007. Of course, when prisoners asked for the reduction, they often threw in a lot of extraneous errors, omissions and complaints about their original sentencings that they wanted the judge to fix as well.

brung170830Judges resisted turning a very limited, pointed sentence reduction proceedings into a sentencing mulligan. The issue found its way to the Supreme Court in 2010. There, the Court ruled in Dillon v. United States that the 3582(c)(2) proceeding was a limited resentencing where no factual findings from the first sentencing could be revisited, no new developments could be addressed, and no additional wrongs – old or new – could be redressed. Instead, the district court took the record as it was, except for the new lower guideline, and sentenced according to the newly adjusted guideline range.

All right. Prisoners could live with that. The Supreme Court promised that there would no new fact-finding, but instead the 3582(c)(2) proceeding would run off the record that closed at conviction. Since the Dillon case, the Sentencing Commission made the 2014 2-level reduction in drug offenses retroactive, and almost 30,000 inmates followed the Dillon playbook and received reductions.

One of the people seeking the reduction – although not on the list of 30,000 successful inmates – was Raul Mercado-Moreno. Raul had been convicted of manufacturing and distributing methamphetamine, a lot of it. Exactly how much was the question. At the time, the guidelines’ top range of 38 was reserved for people whose cases involved more than 1.5 kilograms of meth. At Raul’s sentencing, the judge held that Raul had distributed more than 4.3 kilos. The number was not reached with a lot of precision, because it did not much matter: with the bottom of his range being 1.5 kilos and the top of the range being infinity, a rough number seemed good enough.

Rough or not, the 4.3 kilos was the record finding when Raul was sentenced, and he was confident it would continue to be the record finding for his 3582(c)(2) motion.

But the 2014 reduction in drug quantities changed the equation. Now, Offense Level 38 was reserved for more than 4.5 kilos of actual methamphetamine or more. The range of 1.5 to 4.5 was set at Level 36. Raul’s 4.3 kilos would put him within this lower range, and would yield a sentence reduction of at least 22 months.

Raul filed his petition for sentence reduction in front of a different district judge, because his first one had retired. Relying on the 4.3-kilogram quantity the district court had found at sentencing, Raul argued he was entitled to a new sentence of 188 months instead of the 210 he had been given.

corso170112“Not so fast!” the new judge said. That 4.3-kilo figure was a quick and dirty estimate of how much Raul had distributed. It never, the district court said, was intended to represent the amount Raul had distributed AND manufactured. When the manufactured meth was included, the court found, Raul’s quantity was way over 4.5 kilograms, which means his offense level stayed at Level 38, and he thus had nothing coming.

Raul appealed, arguing that the district court had found the weight of 4.3 kilos at sentencing, and that Dillon meant the new judge had to dance with girl who brung the old judge to the dance.

Monday, the 9th Circuit disagreed with Raul. A district court is bound by the facts it found at sentencing, the Circuit admitted, but only where those are complete. “In those cases where a sentencing court’s quantity finding is ambiguous or incomplete,” the appeals panel said, “a district court may need to identify the quantity attributable to the defendant with more precision to compare it against the revised drug quantity threshold under the relevant Guidelines amendment. The Supreme Court indicated that such fact-finding was permissible in Dillon.”

Here, the 9th said, the original fact-finding was incomplete because the district court found that Raul had distributed at least 4.3 kilograms without ever mentioning how much Raul might have manufactured. “Section 3582(c)(2)’s eligibility inquiry may require a district court to supplement the original sentencing court’s drug quantity findings to ‘determine the amended guideline range that would have been applicable’ to the defendant in light of a retroactive Guidelines amendment.”

mickeyS170830It seems a lot like the courts are only keeping the part of Dillon’s promise they intended to keep. We would be more comfortable with the holding if it were the original judge ruling on the 3582(c)(2) motion. The original judge would presumably know what he had meant when he found the 4.3 kilo figure. It seems to us that the quantity of meth that Raul manufactured would be subsumed by the quantity he distributed. Clandestine labs don’t usually keep meth on the warehouse shelf. It’s sort of like McDonald’s: the sign in front does not count how many hamburgers were cooked. Rather, it counts the number served. So we think it’s a stretch to suggest there is a heretofore undeclared amount of meth that was made but not sold.

On the other hand, the district judge was fully empowered to look at the original 4.3 kilos found to be the amount distributed, and to conclude that that the defendant should not benefit from the sentence reduction, even if he were eligible for it. Thus, to a great extent, this is a case of “no harm, no foul.” But it is troubling that without notice or opportunity to be heard, a district court may declare a prior factual finding incomplete, and revise it upward.

United States v. Mercado-Moreno, Case No. 15-10545 (9th Cir., August 28, 2017)

– Thomas L. Root

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A Pair of Second-and-Successive 2255 Decisions – Update for June 5, 2017

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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.

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AVENUES FOR SECOND-AND-SUCCESSIVE 2255 MOTIONS NARROWED

Most everyone is familiar with the rule that a defendant cannot file a second motion under 28 USC 2255 without prior permission from the court of appeals, granted under 28 USC 2255(h). To get permission, generally, a prisoner has to show either that there is a new retroactive change in the law made by the Supreme Court, or that there is some newly-discovered evidence – that could not have reasonably been found before – which will just about assure that he or she would have been found not guilty.

courthouseclosed170605The 9th and 11th Circuits handed down decisions on second-and-successives last week that restrict the ways prisoners can obtain leave to file. The 9th Circuit decision on intervening judgments is relatively unsurprising; the 11th Circuit decision – which drew a concurrence joined by two of the three judges on the panel denouncing the precedent the decision was obligated to follow – cements the 11th Circuit’s reputation as the most unfriendly forum for a federal prisoner seeking a means to raise a constitutional issue after his or her own go-around with a 2255 motion.

LISAStatHeader2smallNinth Circuit – Sentence Reduction Win Does Not Reset the 2255 Clock

If a defendant is lucky enough to have an intervening judgment, however, the clock is reset. So if Donnie Defendant wins a 2255 motion saying his lawyer messed up his sentencing, getting resentenced as a result, he will then be able to appeal the new sentencing and, after that, file another 2255 motion without getting any special permission.

reductions170605Chris Sherrod filed and lost his 2255 motion in 2014. The next year, however, he won a reduction in his drug sentence under 18 USC 3582(c)(2) based on the Sentencing Commission’s 2-level reduction issued in 2014.

After that, Chris filed another 2255 motion, arguing he did not need permission for a second-and-successive 2255, because the 3582(c)(2) sentence reduction was a new, intervening sentence. Last week, the 9th Circuit disagreed.

The Circuit said a 3582(c)(2) resentencing is “intended to authorize only a limited adjustment to an otherwise final sentence and not a plenary resentencing proceeding.” A district court ruling on a 3582(c)(2) makes only a limited adjustment to the sentence, and claims of error at the original sentencing cannot be raised.

For that reason, the 9th joined the 5th and 7th Circuits in holding that a 3582(c)(2) sentence reduction does not qualify as a new, intervening judgment, and therefore “does not wipe clean the slate of habeas applications that a prisoner has previously filed.”

Sherrod v. United States, Case No. 16-72178 (9th Cir., June 2, 2017)

LISAStatHeader2smallEleventh Circuit – Mathis Does Not Allow Raising Old Issue in Second 2255, No Matter How Wrong The Prior Denial Might Have Been

Orestes Hernandez was sentenced to 775 months imprisonment, 300 months of which came from three mandatory-minimum enhancements he got under 18 USC 924(c) for using a gun. After his conviction, he filed a 2255 motion that was denied.

Sentencestack170404After the 2015 decision in Johnson v. United States, Orestes asked for permission to file a second 2255 arguing that the three 924 convictions were no longer based on a crime of violence. The 4th Circuit denied his application, reasoning that his indictment showed that he was convicted under the Hobbs Act subpart that required a use of force.

However, after the decision in Mathis v. United States last summer, Orestes filed for permission to try a 2255 motion again. Using the rules outlined in Mathis, he said, there was no way his Hobbs Act conviction could be considered a crime of violence under 924(c)(3)(A)’s use-of-force clause.

Last week, the 11th Circuit denied him permission to go forward. A year ago, the Circuit handed down In re Baptiste, which held that under 28 USC 2244(b)(1) – which governs second-and-successive 2255 applications – a claim presented in the second-and-successive application that was raised in a prior application must be dismissed. Because Orestes previously filed a second-and-successive application based on Johnson, the 11th said, Baptiste prohibits his filing again.

Orestes argued that Mathis permitted the filing, but the appeals panel said “Mathis does not provide an independent basis for his application, as the Supreme Court’s holding in Mathis did not announce a ‘new rule of constitutional law’” under 28 USC 2255(h). Instead, Mathis just “provided guidance to courts in interpreting an existing criminal statute. “

eye-needle170605In a concurring opinion, Judge Martin (joined by Judge Jill Pryor) denounced the Baptiste rule. “Mr. Hernandez asks us to make sure the crimes he was charged with qualify as crimes of violence so as to justify the 25 extra years he received under § 924(c),” they said. “However, we are barred from reviewing his application by In re Baptiste… which held that ‘the federal habeas statute requires us to dismiss a claim that has been presented in a prior application’ to file a § 2255 motion. I have stated my view that this bar created by our Court in Baptiste has no basis in the text of the habeas statute.”

In re Hernandez, Case No. 17-11989E (11th Cir., May 31, 2017)

– Thomas L. Root

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Two Outta Three Ain’t Bad – Update for May 11, 2017

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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.

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2014 GUIDELINE CHANGE CUT 30,000 DRUG SENTENCES

Back in the good old days, when the Executive Branch pretended to care about rational federal sentencing policies (and we’re not saying that the prior inhabitant of the White House really did, other than to the extent he could use sentence reform to burnish his legacy) the U.S. Sentencing Commission adopted an amendment to the federal sentencing guidelines that reduced by two the offense levels assigned to drug quantities. The 2014 change reduced defendant’s sentencing ranges accordingly.

USSC170511Unlike most changes in the Guidelines, the Sentencing Commission made the 2-level reduction retroactive to people already sentenced. Retroactivity under the Guidelines is not an automatic thing: a defendant must petition his or her sentencing court under 18 USC 3582(c)(2) for a sentence reduction pursuant to the retroactive Guideline. If eligible, an inmate still must convince the court that a reduction of his or her sentence ought to be awarded. Sentencing courts have wide discretion as to what to do with a sentence reduction motion, and district court decisions are nearly bulletproof.

The Sentencing Commission released a report Tuesday on the fallout from the 2014 2-level reduction. Slightly more than 46,000 people applied for the reduction, of whom a few more than 30,000 receive sentence cuts, for a 66% grant rate. Like Meatloaf said, “Two outta three ain’t bad.”

funwithnumbers170511Actually the odds for defendants were even better than that: 24% of the people who applied were not even eligible for the reduction, for reasons ranging from not having been sentenced under the drug guidelines to being locked in place by statutory mandatory minimum sentence. Only 8% of the 46,000 were denied on the merits (although due to sloppy district court records, the number could have been as high as 13%).

sentence170511The average sentence was cut from 144 to 119 months, a 17% reduction. Of those receiving sentence reductions, 32% were convicted for methamphetamines, 28% for powder cocaine, 20% for crack, 9% for pot and 7% for heroin. The racial and ethnic distribution was 30% white, 33% black, and 41% Hispanic. Curiously enough, the defendant’s criminal history seemed to have no effect on likelihood of receiving a sentence cut, with novices and pros alike getting cuts at about the same rate.

Defendants were better off in Chicago than they were in sunny California. The 7th Circuit gave the largest sentence cuts, 33 months off on the average (20% of the original sentence). The 9th Circuit was the stingiest, giving an average cut of 20 months (16% of the sentence).

U.S. Sentencing Commission, 2014 Drug Guidelines Amendment Retroactivity Data Report (May 10, 2017)

– Thomas L. Root

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