Tag Archives: 924(c)

Supreme Court Loosens 2255 ‘Second or Successive’ Restrictions – Update for January 12, 2026

Leave a comment

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

SCOTUS GUTS § 2244 LIMITATIONS ON SUCCESSIVE § 2255 MOTIONS

For federal prisoners, the only workable means of challenging an unlawful conviction or sentence after direct appeal rights have lapsed is through a petition for writ of habeas corpus. Such a petition is brought through a mechanism provided by 28 USC § 2255.

The procedure is restricted as to timing and frequency: generally, the motion must be filed within a year of the end of direct appeal rights. What’s more, it is a one-to-a-customer filing: to bring a “second or successive” § 2255 motion, the prisoner must get advance approval from the Court of Appeals, and the new filing must fit within very narrow restrictions described in 28 USC § 2255(h).

Congress adopted the restrictions in the Antiterrorism and Effective Death Penalty Act some 30 years ago. I have railed about the AEDPA often enough, so here I will just mention that constitutional abomination in passing.

Back in 2008, Michael Bowe was convicted of conspiracy to commit a Hobbs Act robbery, attempted Hobbs Act robbery, and using a gun during the offenses in violation of 18 USC § 924. In 2016, after the Supreme Court invalidated the residual clause in the Armed Career Criminal Act, Mike filed a § 2255 motion arguing that § 924(c)’s residual clause was unconstitutional as well. The District Court denied the motion, reasoning that – regardless of the residual clause’s constitutionality – he was not entitled to a second bite of the apple because attempted Hobbs Act robbery qualified as a “crime of violence” under the elements clause of the statute.

In 2019, after United States v. Davis held that conspiracy to commit a violent crime was not itself a violent crime, Mike sought permission from the 11th Circuit under § 2255(h) to file a second or successive motion raising whether his § 924(c) conviction should be thrown out. A three-judge panel found that while Davis announced a new, retroactive constitutional rule (one of the two statutory gateways for successive motions under § 2255(h)(2)), Mike could not show that his § 924(c) conviction was unconstitutional because Circuit precedent still treated attempted Hobbs Act robbery as a crime of violence under the elements clause.

After United States v. Taylor held in 2022 that attempted Hobbs Act was not a crime of violence either, Mike once again asked the 11th Circuit for authorization under § 2255(h), arguing that Davis and Taylor left neither of his Hobbs Act convictions as a valid predicate for a § 924(c) charge. The Circuit dismissed the part of his request resting on Davis, reasoning that the claim had been “presented in a prior application” and that the panel lacked jurisdiction over such old claims under 28 USC § 2244(b)(1). That statute on its face applies to state prisoners seeking leave to file a second 28 USC § 2254 petition in federal court, not federal prisoners proceeding under § 2255. Nevertheless, language in § 2255(h) has led courts to ambiguously apply § 2244(b)(1) to federal § 2255 movants as well.

The Circuit panel also denied the part of Mike’s request that rested on Taylor because Taylor did not announce a new constitutional rule within the meaning of § 2255(h)(2).

Mike didn’t give up, going back to the 11th several times, seeking authorization to pursue a § 2255 motion, asking for an en banc hearing, and seeking reversal of Circuit precedent applying § 2244(b)(1)’s old-claim bar to federal prisoners’ successive § 2255 motions. He also requested certification of the question whether § 2244(b)(1) applied to federal prisoners at all. But the 11th turned down all of his entreaties.

Mike eventually filed for a Supreme Court review, pointing out that while six Circuits apply § 2244(b)(1)’s old-claim bar to federal prisoners, three others held that it only applied to state prisoners seeking leave to file a second § 2254 petition in federal court.

Last Friday, the Supreme Court ruled for Mike.

First, the Justices held 5-4 that while 28 USC § 2244 provides that a denial of authorization “to file a second or successive application” shall not be subject to Supreme Court review, that provision does not apply to federal prisoners. The Supremes reasoned that the limitation is housed within § 2244, “which imposes several strict requirements that apply only to state prisoners.” What’s more, § 2244(b)(3)(E) addresses only “second or successive application’ but “unlike state prisoners who file such ‘applications,’ federal prisoners file ‘motions’.”

The Supreme Court also ruled that § 2244(b)(1)’s “old-claim” bar – that states that “[a] claim presented in a second or successive habeas corpus application under § 2254 that was presented in a prior application shall be dismissed” – applies only to state prisoners alone: “That specific reference to § 2254 was deliberate: Elsewhere in this very section, Congress expressly distinguishes § 2254 “applications” from § 2255 “motions… When interpreting statutes, the Court presumes that “differences in language like this convey differences in meaning.” By its plain terms, § 2244(b)(1)’s old-claim bar applies only to state prisoners.”

In the Bowe decision, SCOTUS resoundingly underscores that “the best textual reading of both § 2255(h) and § 2244(b) is that, when a federal prisoner moves for authorization [to file a successive § 2255], a panel can authorize the filing if the filing makes a prima facie showing that it satisfies one of the two grounds in § 2255(h), the ‘two—and only two—conditions in which a second or successive § 2255 motion may proceed’,” quoting Jones v. Hendrix.

Bowe v. United States, Case No. 24-5438, 2026 U.S. LEXIS 4 (Jan. 9, 2026)

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

United States v. Taylor, 596 U.S. 845 (2022)

Jones v. Hendrix, 599 U.S. 465 (2023)

~ Thomas L. Root

Exclusions From FSA Credits Are Easy To Come By – Update for November 14, 2025

Leave a comment

We share news and provide commentary on federal criminal justice issues, mainly focusing on trial and post-conviction topics, legislative efforts, and sentencing debates.

FSA CREDITS FOR AGGREGATE SENTENCES TAKE IT ON THE CHIN

Greg Bonnie is serving a 120-month drug-trafficking sentence and a consecutive 24-month revocation sentence tied to a 2005 conviction that included an 18 USC § 924(c) gun count.

A § 924(c) conviction is one of about 63 different convictions listed in 18 USC § 3632(d) that will disqualify someone from receiving First Step Act credits. Those credits are awarded as an incentive to inmates to complete programs that are proven to make them less likely to commit new crimes once they are released from prison.

A couple of asides here.  First, when the First Step Act programs were developed, experts estimated that they would substantially reduce recidivism. The actual results through June 2024, however, showed that the reduction was far greater than what even the most optimistic projections had anticipated. People whose programming placed them in the “low” recidivism category were estimated to have a repeat-offender incidence of under 25%. Real-world results showed that the repeat-offender incidence for almost 13,000 “low-risk” inmates over four years was 11.4%.

Second aside: The First Step Act directed the Attorney General to issue an annual report on the effectiveness of the Act’s several programs for five years, ending with June 2025, including review of the FSA credits and recidivism. Unfortunately, the current Administration’s Attorney General has been too preoccupied with pardoning people on the President’s preferred list, prosecuting sandwich throwers, purging the disloyal, and pursuing the President’s enemies to honor its obligation. We are thus six months overdue for the final 2025 report, and thus we’re having to make do with what old data we have.

Back to FSA credits: The list of convictions excluded from FSA credit makes sense only in a very political way. If your co-defendant possessed a gun while selling the marijuana you two raised, your § 924(c) disqualifies you. If you rob a bank and beat up a teller, you’re qualified. If you download child porn, you are disqualified. If you hire a hit man (who turns out to be an undercover cop) to kill your spouse, you’re OK.

The exemption of the § 924(c) offense from FSA credit was an 11th-hour deal Senate Majority Leader Mitch McConnell made with Sen. Ted Cruz (R-TX) and Sen. Tom Cotton (R-AR) in order to corral their support for the First Step Act. As you may recall, § 924(c) requires that a court impose a mandatory consecutive sentence of at least five years on anyone convicted of possessing, using or carrying a gun during a crime of violence or drug offense. Stick a Glock in your waistband while selling a guy a 20-lb bale of marijuana you and your cousin grew back in the woods? The Guidelines will score you at a base 14 for that sale, barely worth 15 months in federal prison. But the gun in your waistband will add another five years to the sentence.

And now for Greg: In 2005, Greg was sentenced to 120 months for his bad judgment to engage in a drug trafficking offense and a consecutive 60 months for having the even worse judgment to possess a gun while doing it. In 2017, he completed the sentence in began an 8-year term of supervised release.

When it came to dealing drugs, Greg was learning-challenged (or his time in BOP custody was so much fun he wanted to repeat it). Whatever the reason, Greg resumed the drug trade while on supervised release. In 2021, he was again convicted of drug trafficking and received another 120-month sentence. Because the new crime also violated his supervised release, Greg received a consecutive 24-month sentence, for a total of 144 months.

The Bureau of Prisons is authorized by law to aggregate sentences, meaning that multiple sentences are blended into a single aggregate term for administrative purposes. That worked against Greg here: the BOP decided that because one-third of the Greg’s prior sentence was for a § 924(c) violation, and because one-sixth of his current sentence (24 months of a total 144 months) was for a supervised release violation stemming from the prior sentence, Greg was serving a sentence for a violation of § 924(c) and was ineligible for FSA credits.

The math is interesting. About one-eighteenth of his current sentence can be attributed to the § 924(c) violation. Presumedly, if the court had sentenced him to one day additional incarceration for the supervised release violation – making the § 924(c) share of the current sentence less than 1/9000th of the total sentence – Greg would still be considered ineligible for FSA credits.

Notwithstanding the intellectual force of my reductio ad absurdum argument, not to mention the serious question of whether serving a prison term for violating a term of supervised release can fairly be considered to be serving a prison term for any of the counts of conviction that led to the original prison term), the BOP denied him FSA-credit eligibility for the entire 144-month sentence. Under 18 USC § 3584(c), multiple terms of imprisonment are to be treated “as a single, aggregate term of imprisonment” for administrative purposes. Thus, the BOP took the view that Greg’s 24-month supervised release revocation term disqualified him from earning FSA credits for his entire 144-month sentence.

This was no mean matter: Greg’s maximum FSA credits would have been about 50 months, entitling him to a year off of his sentence and the right to spend the remaining 38 months’ worth of credit or so on home confinement or in a halfway house.

Greg filed a 28 USC § 2241 petition for habeas corpus, arguing that the BOP could deny him FSA credits only for the 24-month supervised release revocation. The district court denied his petition, and last week, the 4th Circuit denied his appeal.

The issue was whether a federal prisoner serving multiple terms of imprisonment, some of which qualify for FSA credits and at least one tied to a conviction that is deemed disqualifying by 18 USC § 3632(d)(4)(D), may earn FSA credits during the non-disqualifying portion of the sentence.

In a 2-1 decision, the 4th held that because 18 USC § 3584(c) requires aggregation for administrative purposes, and because administering FSA credits is an administrative function, any prisoner serving an aggregate term that includes any disqualifying conviction is ineligible for FSA time credits for the entire aggregate term. The aggregate term is evaluated as a whole, and because the aggregate includes a disqualifying § 924(c)-based revocation sentence, Greg is ineligible for credits for the entire aggregate term.

The dissenting judge argued that the text “is serving a sentence for” naturally means ineligibility only while the disqualifying sentence is actually being served; once that period ends, eligibility resumes for the remaining eligible term.

The Circuit’s decision aligns with other circuits and mechanically emphasizes the statute’s categorical prisoner-level disqualification in a blunt-force kind of way.

Bonnie v. Dunbar, Case No 24-6665, 2025 U.S.App. LEXIS 28978 (4th Cir. Nov 5, 2025)

~ Thomas L. Root

The 65% Law (And Other Silliness) – Update for September 18, 2025

Leave a comment

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

EASTER BUNNY SAYS 65% LAW GOES INTO EFFECT ON NOVEMBER 1ST

I would say the silly season is upon us, but that would wrongly imply that it ever left.

Last week, I had a half-dozen questions about changes in the First Step Act to provide relief to people with gun convictions under 18 USC § 924, about how the Armed Career Criminal Act’s drug predicates are changing, and – of course – how the long-anticipated “65% law” is about to go into effect. And every one of the questions said the same – it’s all happening on November 1st.

I repeat what has become my annual myth-busting ritual over the past decade:

  • No Guideline amendment becoming effective on November 1st will apply to anyone who has already been sentenced (that is, become retroactive). This is unfortunate, because the amendments represent fundamental changes that alter how judges impose sentences, manage post-conviction supervision, and evaluate requests for sentence reductions. But the sad fact is that the Commission proposed retroactivity for a few of the changes and then failed to adopt it for any of this year’s slate of changes.

And what will Congress do? Well, yesterday, the House passed H.R. 5140, lowering the age for which youth offenders in the District of Columbia can be tried as adults for certain criminal offenses, changing the threshold to 14 years of age. The Hill reports that “Republicans are set to vote on several other bills relating to D.C. crime later this week as they carry on President Trump’s crusade against crime in the nation’s capital after his 30-day takeover of the city’s police force expired.”

It’s a safe bet that no one in Congress has the stomach to pass any bill that will ease criminal laws or help prisoners.  The crusade, as The Hill described it, is against crime, not for crime.

  • This means that there is NO 65% bill, 65% law or 65% anything. There is NO proposal to cut federal sentences so that everyone will only serve 65% of their time. There is NO bill, law, NO directive from Trump, and NO anything else that will give inmates extra time off. Nothing, nada, zilch, bupkis.

As the Federalist – commenting on the mentally ill suspect accused of stabbing a Ukrainian immigrant to death last month in Charlotte, North Carolina – said last week, “Instead of buying into the dangerous lie that mass incarceration doesn’t work, we should be building more prisons and sending violent criminals there for lengthy sentences… What we’ve been doing for years now is dangerous and morally indefensible. Releasing violent criminals onto the streets, as White House deputy chief Stephen Miller said Tuesday, is a ‘form of political terrorism’ — perpetrated by Democrat elected officials against the people who live in their jurisdictions.”

Do these people sound like they’re interested in any common-sense criminal justice reform? Is there an Easter Bunny?

I am sure that I will have to write this again next year.  And the year after that.  And the year after that. Ad infinitum.

The Hill, House passes 2 bills overhauling DC sentencing policies (September 16, 2025)

The Federalist, We Need To Bring Back Mass Incarceration And Involuntary Commitment (September 10, 2025)

~ Thomas L. Root

The Fine Print Counts In A Deal With the Devil – Update for February 20, 2024

Leave a comment

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

‘SHUT UP AND SIGN’ LEADS TO A LOT OF BUYER REMORSE

About 95% of all federal indictments end with a plea agreement where the defendant agrees to take a guilty plea in exchange for government promises that often seem evanescent if not illusory. If I had a dime for every prisoner who has told me that he or she only signed because defense counsel said to, I would be writing this on the beach of my private Caribbean island instead of at a desk looking out at February snow in Ohio.

plea161116Two cases decided last week remind all prisoners – including those who have already signed their plea agreements – that in a plea agreement, every promise counts. A defense attorney’s disservice to the client is never greater than when he or she rushes them into signing a “good deal” without first painstakingly walking the defendant through every provision and explaining it in detail.

Eric Rudolph (remember him?) decided to express his political views by blowing up Olympic venues and abortion clinics. The innocents he slaughtered in the process were just icing on his demented cake. After five years on the lam, Eric was caught dining out of a dumpster in Murphy, North Carolina, and was later convicted of one 18 USC § 844(i) arson offense and five companion 18 USC § 924(c) counts for using a firearm (bombs studded with nails qualify under the statute as “firearms”) in the commission of the arson.

Eric’s approach to the plea agreement was unrepentant. He said he had “deprived the government of its goal of sentencing me to death,” and that “the fact that I have entered an agreement with the government is purely a tactical choice on my part and in no way legitimates the moral authority of the government to judge this matter or impute my guilt.”

Uh-huh. Eric’s statement brings to mind old Gus McRae (Lonesome Dove) addressing outlaw Dan Suggs, who was about to be executed with his brother but expressed only hatred and contempt:

Gus McCrae: I’ll say this, Suggs; you’re the kind of man it’s a pleasure to hang. If all you can talk is guff, you can talk it to the Devil.

supermaxcell240220I’m no fan of mandatory life sentences and even less of the death penalty, but it’s amazing how malleable our principles can be when we’re punched in the face with pure-D evil. Eric undeservedly got a life sentence, which he’s spending in the mountains of Colorado (although he never gets to see them from his concrete cell at ADX Florence).

As part of the plea deal he was proud of for depriving the Feds of the death penalty, Eric waived the right to collaterally attack his sentence in any post-conviction proceeding, including under 28 USC § 2255. But because of what the Court disapprovingly calls “the evergreen litigation opportunities introduced by the categorical approach” to § 924(c) litigation,” Eric – who has apparently decided that freedom some day isn’t such a bad goal – has filed two § 2255s so far. Last week, the 11th Circuit turned down his second one as barred by the plea agreement and, in so many words, told Eric to enjoy his place in the mountains for the rest of his life.

In the last few years, courts have applied the Supreme Court’s “categorical” approach to determining whether an offense is a “crime of violence” within the meaning of 18 USC § 924(c)(3)(A), that is, “an offense that is a felony and has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” Even Eric’s district court agreed that after the Supreme Court’s decision in United States v. Davis, his arson offenses were no longer crimes of violence under the federal statute (because one can be convicted of arson for burning down his or her own property). But that didn’t matter, the district court said, because Eric had given away his right to bring a § 2255 motion to correct the error.

Last week, the 11th Circuit agreed. It held that “a plea agreement is, in essence, a contract between the Government and a criminal defendant. And because it functions as a contract, a plea agreement should be interpreted in accord with what the parties intended. In discerning that intent, the court should avoid construing a plea agreement in a way that would deprive the government of the benefit that it has bargained for and obtained in the plea agreement.”

Eric’s plea deal, the 11th said, contained the common waiver of the right to bring a collateral attack on his sentence. But Eric argued that the plea deal only prohibited collateral attacks on the sentence, while his collateral attack was on the § 924(c) convictions.

dumpsterfire249220Eric’s argument was a dumpster fire, the Circuit said. “The text of 28 USC § 2255, the history of that same statute, and the habeas corpus right that it codified, all point in the same direction: 2255 is a vehicle for attacking sentences, not convictions.” Starting with the origins of English habeas corpus through the codification of 2255 up to last summer’s Supreme Court Jones v. Hendrix decision (where SCOTUS said “Congress created 2255 as a separate remedial vehicle specifically designed for federal prisoners’ collateral attacks on their sentences”), the 11th concluded that the history, the plain text of the statute “shows the same, as does Rudolph’s requested relief… [His] motions are collateral attacks on his sentences, so his plea agreements do not allow them.”

Winning his § 2255 would have been a huge deal for Eric. The 18 USC § 844(i) conviction carries a maximum 10-year sentence. Each of the § 924(c) convictions carries a maximum of life. Had Eric been allowed to bring the § 2255, he would have gone from his concrete cell straight to walking the streets (something most of his victims would never enjoy again).

*     *     *

Meanwhile, over in Louisiana, Keesha Dinkins – a front-office worker at Positive Change healthcare clinic – was swept up in a Medicaid billing fraud. She didn’t make a dime from the fraud beyond her normal salary, but her lawyer had her sign a plea agreement for 24 months and restitution of $3.5 million.

positivechange240220Despite the deal she made, she argued that she should not be on the hook to share the restitution equally with Positive Change’s owner (who got a lot more time than she did). Last week, the 5th Circuit told her that it was Positive that it would not Change her restitution:

The criminal justice system in this country relies on plea agreements to provide efficient resolutions to criminal cases. Indeed, over 95 percent of federal criminal cases are resolved without trial. It would undermine the principle that plea bargains are contracts to hold that a party can agree to a specific amount of restitution, supported by record evidence, and then in the next breath, challenge an order imposing that exact amount of restitution.

The 5th observed that her plea agreement provided that “Dinkins — not Positive Change — was responsible for the $3.5 million loss.” That is how the judgment will remain.

Rudolph v. United States, Case No 21-12828, 2024 U.S. App.  LEXIS 3278 (11th Cir., February 12, 2024)

United States v. Johnson, Case No 22-30242, 2024 U.S. App. LEXIS 3487 (5th Cir., February 14, 2024)

– Thomas L. Root

‘You Agreed to an Unconstitutional Conviction,’ 2nd Circuit Says – Update for October 26, 2023

Leave a comment

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

‘WAIVING’ JUSTICE GOODBYE

plea161116Resolving criminal cases by a plea deal is more than merely common. In the federal system, 98% of all cases end in a plea agreement where the defendant agrees to plead to one or more counts in exchange for the government usually agreeing to do not much at all. Sure, the defendant usually gets a 2-3 level reduction under § 3E1.1 of the Sentencing Guidelines for “acceptance of responsibility” by pleading guilty.

But often enough, the Government’s concessions are illusory while the defendant’s obligations become onerous.  One of the unexploded mines in the agreement is the waiver.  A defendant will waive the right to appeal the conviction or sentence and to bring a collateral attack on the conviction under 28 USC § 2255.

Such a waiver probably doesn’t seem that unfair, at least where waiving the right to appeal is concerned.  A plea agreement, after all, is supposed to end litigation. But what happens when the conviction to which a defendant agrees proves down the road to be unconstitutional?

hobbsact200218That happened to Derek Cook. Derek (like a number of co-petitioners in his case) pled guilty to conspiracy to commit Hobbs Act robbery – 18 USC § 1951(a) – and using a firearm in furtherance of a crime of violence – 18 USC § 924(c). In exchange for the government’s promise not to bring any more criminal charges, Derek agreed to waive a number of rights, including the right to collaterally attack the convictions and sentences under 28 USC § 2255.

But after the Supreme Court held in the 2015 Johnson v. United States case that the residual clause of the Armed Career Criminal Act was unconstitutionally vague, Derek filed a § 2255 motion in which he correctly argued that his conspiracy charge could no longer be a defined as a crime of violence supporting a § 924(c) conviction. The district court sat on the petition until SCOTUS agreed, definitively holding that, constitutionally, conspiracy could not be the basis for a § 924(c) in the 2019 United States v. Davis decision.

After that, the district court conceded that Derek’s conviction for using a firearm in furtherance of a crime of violence was unconstitutional. But that didn’t matter, the Court said, because Derek had waived his entitlement to a conviction that was constitutional by signing a plea agreement containing his commitment not to file a § 2255 motion.

Last week, the 2nd Circuit agreed. The Circuit wrote that “while we have not yet considered the precise question of whether collateral-attack waivers are enforceable in the wake of Johnson and Davis, we have made clear that such waivers are generally enforceable in the face of evolving judicial precedent… [T]he possibility of a favorable change in the law after a plea is simply one of the risks that accompanies pleas and plea agreements. This principle follows from the fact that plea agreements, like all contracts, allocate risk between the parties – and we are not free to disturb the bargain the parties strike.

pleadeal180104“The enforceability of a collateral-attack waiver,” the 2nd held, “turns on whether the petitioner’s plea was knowing and voluntary, not the nature of any subsequent legal developments… Petitioners counter that they have a due process right not to be convicted of a non-existent offense. But the question is not whether Petitioners have a right not to be convicted of a non-existent offense. It is whether Petitioners have a right to bring a collateral attack when, in exchange for valid consideration, they executed binding plea agreements admitting their criminal conduct and waiving their ability to challenge the resulting convictions. And on that score, our precedent is clear that ignorance of future rights is unavoidable and not a basis for avoiding a plea agreement.”

Cook v. United States, Case Nos. 16-4107 et al, 2023 U.S.App. LEXIS 27383 (2d Cir., October 16, 2023)

– Thomas L. Root

More Rumors – How Many Can You Identify as True? – Update for October 24, 2023

Leave a comment

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

RUMORS II – TAKE OUR INMATE.COM RUMOR QUIZ

In prison, “inmate.com” is an information site of almost mythical status. It’s omniscient, omnipresent, omnivorous, and almost always, always wrong.

Unsurprisingly, there really is an inmate.com, although it bears no resemblance to the ethereal website of legend.

legend231023On November 1, the Guidelines amendments proposed last April will become effective. Under 28 USC § 994(p), amendments proposed by May 1 must become effective by November 1 unless Congress votes otherwise. Congress has not done so, and with the House in turmoil and no apparent Senate interest in stopping the amendments, the amendments will be effective in eight days.

Somehow, in the 35 years we’ve had the Sentencing Guidelines, the date of “November 1” has taken on a mystical, legendary quality. This year’s no different, as my email inbox continues to be stuffed with questions about what may happen ten days from now.

trueorfalse231024Take our true-or-false test to see how current you are on the latest November 1st rumors now being featured on  Inmate.com (the mythical one, not the penpal site):


(1) True or false: On November 1, the meth guidelines will be lowered by doing away with the “ice” enhancement.

FALSE. A district judge in SD Mississippi refused a few months ago to enhance for meth purity. It happens that this Judge is also Chairman of the Sentencing Commission, but nothing has been proposed on meth, let alone passed.

(2) True or false: On November 1, a new law will go into effect making 18 USC 924(c) prisoners eligible for FSA credits.

FALSE. The only way for 924(c) people to get FSA credits would be for Congress to amend the First Step Act. There is no proposal in front of either the House or the Senate to do that.

(3) True or false: On November 1, Congress is going to do away with the crime of conspiracy.

FALSE. Such a proposal, if anyone were daft enough to propose it, would never even make it to a committee hearing.

(4) True or false: On November 1, Biden is going to give all federal prisoners a year off of their sentences because of how miserable it was to be locked up for COVID.

FALSE. No one has even suggested such a thing, let alone seriously proposed it.

(5) True or false: On November 1, the new 65% law is going into effect.

FALSE. There ain’t no 65% law, never has been a 65% law, and probably never will be a 65% law.

(6) True or False:  On November 1, the Time Reduction Fairy will appear to magically commute your sentence to ‘time served.’

FALSE, but no more false than all the other November 1 rumors.

timereductionfairy231003Do you detect a trend here? This year, more happens on the 1st of November than All Saint’s Day… but not much. A couple of Guideline amendments go into effect and become retroactive. That’s good. Another one – compassionate release – will help a lot of people. But nothing will come out of Congress, nothing from the White House, very little from the BOP, and just the predictable annual amendment list from the Sentencing Commission.

And thus it will ever be.

– Thomas L. Root

“Hold My Beer,” 4th Circuit Says in Compassionate Release Case – Update for August 18, 2023

Leave a comment

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

APPEALS COURT TAKES GRANT OF COMPASSIONATE RELEASE MOTION INTO ITS OWN HANDS

Appellate courts are usually much more circumspect in reversing trial courts, vacating a decision but not explicitly directing the district judge how to decide things on remand.

holdmybeer230818Not that the savvy district judge doesn’t read between the lines. An appellate court vacatur with a suggestion – often implicit – that the district court needs to think about the case differently usually leads to a different ruling the second time around.

Not always. When Kelvin Brown was convicted of drug trafficking nine years ago, the jury also found him guilty of two 18 USC § 924(c) counts as well. Back then, the first § 924(c) carried a mandatory minimum sentence starting at five years. The second conviction – even if it resulted from events the next day – required an additional mandatory minimum of 25 years. The district court thus sentenced Kelvin to 30 years in prison for his two § 924(c) convictions and stacked another 27 years on him for the various drug offenses.

Six years later, during the height of the COVID crisis, Kelvin moved for compassionate release under 18 USC § 3582(c)(1)(A). The judge turned him down flat without even asking the government to respond. Kelvin appealed, and the 4th Circuit remanded, directing the district court to consider the fact that Kelvin got 20 more years for the gun than he would have had to get after the First Step Act passed in 2018 in light of the Circuit’s decision in United States v. McCoy.

extraordinary220719The district court denied Kelvin a second time in December 2021, again neglecting to address the whopping § 924(c) sentences despite (as the 4th Circuit put it) “our express recognition in our previous remand order that McCoy – and its holding that disparate § 924(c) sentences can constitute “extraordinary and compelling reasons” for release – is relevant to this case.”

Two days ago, the 4th Circuit threw up its hands and told the district judge to watch how it’s done. The 4th cut Kelvin’s sentence by 20 years (which still leaves him with 37 years to do), both expressing its frustration and apologizing for its interference:

We hold that the district court abused its discretion by denying Brown’s motion because his disparate sentence creates an “extraordinary and compelling reason” for his early release, and the § 3553(a) sentencing factors overwhelmingly favor a sentence reduction. We therefore reverse and remand with instructions to rectify that disparity and reduce Brown’s prison sentence by twenty years.

Ordinarily, we understand that district courts wield broad discretion in deciding compassionate release motions… So, in a different case, we might remedy the district court’s error by remanding for the district court to consider Brown’s disparate sentence in the first instance. Yet the district court here has already had two opportunities to review Brown’s compassionate release motion: its initial denial of Brown’s motion in July 2020, and its second denial in December 2021 after we remanded Brown’s case for further consideration. Each time, the district court neglected to address Brown’s disparate sentence.

The Circuit also found that Kelvin’s disparate sentence strongly affects the 18 USC § 3553(a) sentencing factors: “The First Step Act‘s amendment to § 924(c) reflects Congress’s judgment that sentences like Brown’s are dramatically longer than necessary or fair,” the appeals court said, “and, in turn, are not necessary to serve the ends of § 3553(a)(2).”

dungeon180627Notable in the 4th’s analysis is its holding that the need for Kelvin’s longer sentence has been called into question because COVID-19 created hardship in prison life “not contemplated by the original sentencing court” and that those hardships have “undoubtedly increased his prison sentence’s punitive effect.” The Circuit observed that Kelvin’s facility was placed on lockdown in response to the pandemic, during which he was “confined to his cell for 22.5 hours a day,” and the recreation areas were closed.” The majority opinion said, “Even if those factors have been mitigated by the evolving circumstances of the pandemic, that they plagued Brown at any point has made his incarceration harsher and more punitive than would otherwise have been the case… Therefore, Brown’s drastic sentence, which might have been ‘sufficient but not greater than necessary’ before the coronavirus pandemic, may no longer be justified.”

The opinion also emphasizes that Kelvin’s “one disciplinary infraction throughout his incarceration—a fact the district court also failed to mention—casts further doubt on the court’s concern for the safety of the community. And while the court did briefly consider Brown’s rehabilitative efforts” – which included a stack of programming and mentoring work to his credit – “it failed to weigh how those efforts ameliorate any risk posed to Brown’s community upon his release.” Citing Pepper v. United States, the Circuit ruled that such “postsentencing rehabilitation minimizes the need for the sentence imposed to protect the public from further crimes of the defendant, and provides the most up-to-date picture of Brown’s history and characteristics, which also favors a sentence reduction.”

illdoitmyself230818The 2-1 opinion is remarkable not only for the fact that an appellate court took the unusual step of granting a compassionate release motion itself but because of the reliance on the harshness of Bureau of Prisons conditions during the pandemic and the elevation of post-sentencing conduct as a factor in § 3553(a) analysis in reaching its decision.

United States v. Brown, Case No. 21-7752, 2023 U.S. App. LEXIS 21403, at *24-25 (4th Cir. Aug. 16, 2023)

United States v. McCoy, 981 F.3d 271 (4th Cir. 2020)

Pepper v. United States, 562 U.S. 476 (2011)

– Thomas L. Root

When Murder Is Nonviolent – Update for July 18, 2023

Leave a comment

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

IS § 924(c) A VIOLENT CRIME?

I still get questions from people asking whether 18 U.S.C. § 924(c) remains a “crime of violence.”

The answer is that § 924(c) – which criminalizes the use of a gun during a crime of violence or drug trafficking offense – has never itself been a “crime of violence.”

cmonman230718“C’mon, man!” I hear people out in TV Land saying, “how can using a gun in a crime not be a “crime of violence?”

To you I say, “Welcome to federal criminal law.”

To those prisoners with § 924(c) charges because of an underlying drug offense, violence has nothing to do with nothing. The § 924(c) applies because you had a gun in the closet while you sold meth out of your bedroom. Or because you figured it’d be cool to have a Lorcin .380 stuck in your waistband where its principal threat was to your reproductive organs. You can’t have a gun while you’re selling controlled substances. It’s illegal. (Of course, selling controlled substances is illegal, too, but that’s a topic for another day).

To those people with § 924(c) charges because of an underlying crime of violence, the § 924(c) is not the “crime of violence.” It’s just a conviction resulting from another “crime of violence.”

Section 924(c) does define “crime of violence:” It’s (1) a felony; that is either

(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

violence180508But after a line of Supreme Court decisions from Johnson v. United States through last year’s United States v. Taylor decision, alternate definition (b) has been invalidated as unconstitutionally vague. As a result, conspiracies to murder are not crimes of violence, because you can conspire with your buddies all night without using or threatening someone with the use of force. Attempts to rob a fellow drug dealer are not crimes of violence because you can complete an attempt just by walking up to the victim’s door with a gun in your hand and evil on your mind. In fact, some folks are starting to think that nothing is a “crime of violence” anymore.

Under the circumstances, Tiffany Janis could be forgiven for thinking that her crime wasn’t violent, either. All she did was to come home, catch her cheatin’-heart husband in flagrante delicto, and express her displeasure by shooting him a few times.

Because the domestic discord played out on Indian reservation land, it ended up in federal court, where Tiffany was convicted of 2nd-degree murder and discharging a gun during and in relation to a crime of violence.

In a § 2255 motion, Tiffany argued that her 2nd-degree murder conviction was not a crime of violence, meaning that her § 924(c) conviction had to be vacated.

Tiffany’s murder conviction required that the government show she had killed another person “with malice aforethought.” She argued that killing a person “with malice aforethought” can be done without “us[ing] force against the person or property of another,” as required by § 924(c)(3)(A). Under SCOTUS’s Borden v. United States holding, Tiffany maintained, § 924(c)’s force clause requires “directing or targeting force” at another person or their property. The 8th’s 2nd-degree murder precedent, however, showed that “malice aforethought” can be established without a perp “targeting” force in the way that the force clause, as interpreted by Borden, requires.

The 8th Circuit disagreed, ruling:

Homicides committed with malice aforethought involve the “use of force against the person or property of another,” so 2nd-degree murder is a “crime of violence.” This holding implements the Supreme Court’s command to interpret statutes using not only “the statutory context, structure, history, and purpose,” but also “common sense…”

violent160620“Murder is the ultimate violent crime – irreversible and incomparable in terms of moral depravity,” the Court said. Borden quoted from an opinion by then-Judge Alito holding “the quintessential violent crimes, like murder or rape, involve the intentional use’ of force… Malice aforethought, murder’s defining characteristic, encapsulates the crime’s violent nature.”

Murder is still a crime of violence. Only in federal law could such a question be debatable.

Janis v. United States, Case No. 22-2471, 2023 U.S. App. LEXIS 16993 (8th Cir. July 6, 2023)

– Thomas L. Root

‘Don’t Understand 924(j), Just Do As It Directs,’ SCOTUS Says – Update for June 19, 2023

Leave a comment

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

CONGRESS MAKES NO SENSE, BUT WE’LL FOLLOW THE STATUTE ANYWAY

Anyone who believes that Congress crafts the laws it passes with wisdom and expertise needs look no further than 18 USC § 924, which sets out penalties for gun offenses.

chewbacca230619The penalties in 18 USC § 924(c) for using or carrying a gun during a drug or violent crime must be consecutive to any other sentence. But if the defendant uses the gun to murder someone during the § 924(c) offense, he or she is punished under 18 USC § 924(j).  While § 924(j)’s maximum penalty – death – is more severe than § 924(c)’s maximum of life without parole, § 924(j) has no mandatory minimum and does not require that the sentence be consecutive to any other sentence.

In other words, it seems from a straight reading of the statute that a defendant is better killing some with his gun during a Hobbs Act robbery than he is just keeping the gun in his, which punishes a § 924(c) violation “where death results,” do not.

Remember the Chewbacca defense?  That. Does. Not. Make. Sense.

Last Friday, the Supreme Court shrugged and said it doesn’t matter whether it makes sense or not. Section 924(j) means what it says, or more accurately, means what it doesn’t say.

In Lora v. United States, the high court held that the sentence imposed by § 924(j) may be either consecutive or concurrent (like the sentence for almost all other criminal offenses, as permitted by 18 USC § 3584(a)).

Efraim Lora was convicted of a violation of § 924(j)(1), which penalizes using a gun during a drug or violent crime to “cause the death of a person” where “the killing is a murder.” Efraim’s underlying offense was drug trafficking. At sentencing, the District Court concluded that it lacked discretion to run Efraim’s drug and § 924(j) sentences concurrently because § 924(c)’s requirement for consecutive sentences obviously governs § 924(j) sentences, too.  

violent160620After all, § 924(j) says, “A person who, in the course of a violation of subsection (c), causes the death of a person through the use of a firearm…”  It stands to reason that because subsection (j) refers to subsection (c), then subsection (j) must import subsection (c)’s mandatory consecutive sentences.

The District Court’s conclusion represented an attempt to make subsection (c) and subsection (j) make sense together.  Five circuit courts of appeal have held the same, which only two – the 10th and 11th – had held otherwise.

Last Friday’s Supreme Court opinion changes all of that. Justice Alito, writing for a unanimous court, noted the Government’s complaint that it is “implausible” that “Congress imposed the harsh consecutive-sentence mandate under subsection (c) but not subsection (j), which covers more serious offense conduct.” Yet, his opinion says, “that result is consistent with other design features of the statute.”

The Supremes observed that “Congress plainly chose a different approach to punishment in subsection (j) than in subsection (c). Subsection (c), first enacted in 1968, is full of mandatory penalties… Subsection (j), by contrast, generally eschews mandatory penalties in favor of sentencing flexibility… Even for murder, subsection (j) expressly permits a sentence of ‘any term of years.’ This follows the same pattern as several other provisions enacted alongside subsection (j) in the Federal Death Penalty Act of 1994.”

Justice Alito’s opinion admitted that “Congress could certainly have designed the penalty scheme at issue here differently. It could have mandated harsher punishment under subsection (j) than under subsection (c). It could have added a consecutive-sentence mandate to subsection (j). It could have written subsection (c)’s consecutive-sentence mandate more broadly. It could have placed subsection (j) within subsection (c). But Congress did not do any of these things. And we must implement the design Congress chose.”

massrelease161208So what does this mean for people serving consecutive sentences for § 924(j)? Unless you’re still within a year of conviction – so you can use your § 2255 petition to raise the issue – you probably would have to proceed on a 28 USC § 2241 petition for habeas corpus. The limits of what you can do in a § 2241 petition may be decided in the next two weeks when the Supreme Court decides Jones v. Hendrix. But many courts have held that a § 2241 petition cannot be used like this unless the statutory interpretation means you’re innocent of the offense, not just of the sentence. No doubt, there is plenty of litigation to come on this.

Bloomberg, Justices Clarify Sentencing for Gun-Related Drug Crimes (June 16, 2023)

Lora v. United States, Case No 22-49, 2023 US LEXIS 2548 (June 16, 2023)

– Thomas L. Root

Late is Still Late, But Early Is Not, 4th Circuit Says – Update for May 25, 2023

Leave a comment

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

2255 THAT WAS TOO EARLY IS NOT TOO LATE, 4TH CIRCUIT SAYS

hobbsact200218Andra Green was convicted of a series of Hobbs Act robberies, attempted robberies and conspiracies, along with several 18 USC § 924(c) offenses for using a gun during a crime of violence. Such § 924(c) offenses come with mandatory consecutive sentences and are thus beloved by prosecutors.

The reason for prosecutorial affection is illustrated in Andra’s case. Because someone died during one of the Hobbs Act robberies – a violation of 18 USC § 924(j) – Andra was sentenced to life in prison.

But a few years after Andra’s conviction, the Supreme Court decided Johnson v. United States in 2015. Johnson held that the residual clause of the definition of “crime of violence” – the part that said that a crime was violent if it carried a substantial likelihood that physical violence would result – was so vague as to be unconstitutional. Andra connected the dots – like a lot of prisoners did at the time – and figured that if Johnson invalidated the crime-of-violence residual clause for the Armed Career Criminal Act, the similarly-worded residual clause in 18 USC § 924(c) must be equally unconstitutional.

Andra filed a 28 USC § 2255 motion to vacate his § 924(c) and § 924(j) convictions based on his notion that Johnson should logically extend to § 924(c) crimes of violence. Such a § 2255 motion must be filed within strict time limits, such as within a year of the underlying conviction becoming final or within a year of a new constitutional holding that invalidates the conviction. (You can read the limitations in 28 USC § 2255(f)).

Andra was wrong: Johnson did not affect § 924(c) at all. The government argued that Andra’s petition was hopelessly late because it could not rely on Johnson, but instead had to be filed within a year of conviction (and it was four years late for that).

canary230525But Andra was prescient. Johnson may have had nothing to do with § 924(c) offenses directly, but it was the canary in the mine: the Supreme Court over the next few years would extend Johnson’s logic to 18 USC § 16(b) in Sessions v. Dimaya and then to § 924(c) in United States v. Davis. Andra’s petition was held in abeyance by the District Court and later the Fourth Circuit as all of this unfolded. Four years after Johnson, Davis held that the residual clause in § 924(c)’s definition was unconstitutionally vague as well.

Clearly, Andra’s § 2255 motion was untimely when he filed, because Johnson was not a constitutional ruling that would restart Andra’s § 2255 clock. That, as the 4th Circuit put it, made “the key question… whether Davis renders Green’s Johnson-based motion timely” after the fact.

Last week, the 4th said that being early ended up making Andra on time. For starters, it said, “[t]he Davis Court extended the holding of Johnson” to invalidate the “analogous” residual clause in § 924(c). Indeed, in concluding that § 924(c)’s residual clause is unconstitutionally vague, the Supreme Court noted that the clause “bear[s] more than a passing resemblance” to the ACCA residual clause it had struck down in Johnson. Davis thus confirmed what Andra’s motion asserted: that the vagueness analysis in Johnson also called into question the constitutionality of § 924(c)’s residual clause.

early230525The Circuit said the text of § 2255(f)(3) “is silent on how to address this particular scenario, where a petitioner filed a § 2255 motion within a year of a Supreme Court decision recognizing a closely analogous right, and the Supreme Court then recognized the specific right at issue during the pendency of the § 2255 proceedings.” The purpose of the statute of limitations supports extending the limitations period here, the 4th held, because the goal of the limitations in § 2255(f) is to “curb the abuse of the statutory writ of habeas corpus… including undue delays. A petitioner certainly does not contribute to undue delays by filing a § 2255 motion too early. And a petitioner does not abuse the writ by raising an argument, based on very persuasive but non-controlling Supreme Court precedent that the Supreme Court then endorses in a controlling decision.”

United States v. Green, Case No. 16-7168, 2023 U.S.App. LEXIS 11961 (4th Cir., May 16, 2023)

– Thomas L. Root