Tag Archives: 924(c)

Unjust Sentence is an “Extraordinary and Compelling” Reason for Sentence Reduction, District Court Says – Update for November 18, 2019

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DISTRICT COURT GRANTS SENTENCE REDUCTION BECAUSE OF “INJUSTICE” OF ORIGINAL SENTENCE

Since the First Step Act passed 11 months ago, a number of observers (me included) have predicted that changes in the 18 USC § 3582(c)(1)(A)(i) sentence reduction procedures that let a defendant petition the district court directly if the Bureau of Prisons failed to do so could be the most consequential provision in the new law.

Sentencestack170404Last week, a district court in Nebraska granted a sentence reduction filed by a defendant whose whopping 895-month sentence for drug trafficking and three stacked 18 USC § 924(c) counts. As you recall,  § 924(c) conviction adds a consecutive sentence of at least five years for using or carrying a gun during a drug or violent crime, increasing to a minimum 25 years for a subsequent offense. Due to poor draftsmanship, the statute has been applied so that if a defendant sold pot while carrying a gun on Monday, did it again on Tuesday and again on Wednesday, and then was caught, he or she would face maybe 41 months or so for the pot sales, but a mandatory additional time of five year, 25 years and 25 years, for a whopping 58 years plus in prison. The First Step Act clarified the statute, so that the 25 year subsequent 924(c) offense had to be committed after conviction for a prior offense.

However, to appease the Sen. Tom Cottons (R-Arkansas) of the world, the First Step change was not retroactive. That left a lot of people stranded with unconscionable sentences. People like Jerry Urkevich.

The government opposed Jerry’s sentence reduction motion, arguing that just because he could not have gotten more than 368 months after First Step passed does not make his sentence reduction motion argument “extraordinary and compelling” (as required by the statute). Furthermore, the government argued, even if the defendant’s sentence were cut, he would still have about half of it to serve, making his motion “premature.”

extraordinary191118The court rejected the government’s arguments, noting that the list of “extraordinary and compelling reasons” in Guideline 1B1.13 Note 1 that justify a sentence reduction is not exclusive. Instead, there is a catch-all provision providing that there can be an “extraordinary and compelling reason” other than medical, age or family. That, the judge said, allows a court to consider § 3553(a) factors, as well as criteria in the Sentencing Commission’s policy statement.

Although the Sentencing Commission has not amended 1B1.13 since First Step passed, the court said it “infers that the Commission would apply the same criteria, including the catch-all provision… and that this Court may use Application Note 1(D) as a basis for finding extraordinary and compelling reasons to reduce a sentence.” Here, the court said, a reduction in sentence was warranted by “the injustice of facing a term of incarceration forty years longer than Congress now deems warranted for the crimes committed.”

The court also rejected the government’s strange and unsupported argument that a sentence reduction cannot be granted unless it results in immediate release. “If this Court reduces the defendant’s sentences on [two 924(c) counts] to 60 months each, consecutive,” the judge wrote, “he will not be eligible for immediate release. His sentence would total 368 months, and he would have served somewhat more than half that sentence. Nonetheless, the Court does not consider the Motion premature. A reduction in the sentence at this juncture will help the defendant and the Bureau of Prisons plan for his ultimate release from custody and may assist him in his pending efforts to seek clemency from the Executive Branch.”

In his Sentencing Law and Policy blog, Ohio State University law professor Doug Berman wrote, “I have made much of a key provision of the First Step Act which now allows federal courts to directly reduce sentences under the (so-called compassionate release) statutory provisions of 18 USC § 3582(c)(1)(A) without awaiting a motion by the Bureau of Prisons. I see this provision as such a big deal because I think, if applied appropriately and robustly, this provision could and should enable many hundreds, and perhaps many thousands, of federal prisoners to have excessive prison sentences reduced.)”

While not precisely a matter of § 3582(c) sentence reduction, the Washington Post reported last week that hundreds of relatives of murder victims, current and former law enforcement officials and former judges have signed letters urging the Trump administration to call off plans to resume federal executions next month.

death170602The letters, signed by current and former officials across the justice system as well as 175 relatives of murder victims, plead with President Trump and Attorney General William P. Barr to stop the executions, which Barr announced last summer that the Trump administration would resume on Dec. 9. The Justice Dept. said five executions were scheduled in the next two months and that more would follow.

Victims’ relatives — the largest single group to sign the letters — denounced the death penalty process as wasteful and something that only extends their grieving. “We want a justice system that holds people who commit violence accountable, reduces crime, provides healing, and is responsive to the needs of survivors,” they write. “On all these measures, the death penalty fails.”

United States v. Urkevich, 2019 U.S. Dist. LEXIS 197408 (D.Neb. Nov. 14, 2019)

Sentencing Law and Policy, Another District Court finds statutory sentence reform among “extraordinary and compelling reasons” for reducing sentence by 40 years under 18 U.S.C. § 3582(c)(1)(A) (Nov. 16)

Washington Post, Hundreds of victims’ relatives, ex-officials ask Trump administration to halt federal executions (Nov. 12)

– Thomas L. Root

District Court Weighs in on Post-Davis “Attempt” Crime – Update for October 23, 2019

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EDNY DISTRICT COURT SAYS ATTEMPTED HOBBS ACT ROBBERY IS CRIME OF VIOLENCE

Last June’s Supreme Court United States v. Davis decision held that conspiracy to commit a violent crime is not itself a crime of violence. That has raised the obvious question of whether an attempt to commit a violent crime is itself a violent crime.

Robber160229Two weeks ago, an Eastern District of New York court said it was. A defendant had moved to dismiss an 18 USC § 924(c) count on the grounds that the underlying offense, attempted Hobbs Act robbery, was not a crime a violence after the Davis decision. The district court disagreed:

A completed Hobbs Act robbery itself qualifies as a crime of violence under 924(c)(3)(A) and, therefore, attempt to commit Hobbs Act robbery requires that the defendant intended to commit every element of Hobbs Act robbery, including the taking of property in a forcible manner. The definition of a crime of violence in 924(c)(3)(A) equates the use of force with attempted force, and thus the text of 924(c)(3)(A) makes clear that actual force need not be used for a crime to qualify under 924(c)(3)(A). Thus… given 924(c)’s ‘statutory specification that an element of attempted force operates the same as an element of completed force, and the rule that conviction of attempt requires proof of intent to commit all elements of the completed crime,’ attempted Hobbs Act robbery qualifies as a crime of violence under 924(c)(3)(A) as well.

The decision, which is rather thinly justified, is hardly the last word on the issue.

United States v. Jefferys, 2019 U.S. Dist. LEXIS 177234 (EDNY, Oct. 11, 2019).

– Thomas L. Root

Too Many Questions, Too Few Commissioners – Update for October 16, 2019

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DENIAL HIGHLIGHTS JUDICIAL SPLIT ON COMPASSIONATE RELEASE

compassion160208A key provision of the First Step Act allows federal courts to reduce sentences under the so-called compassionate release statutory provisions of 18 USC § 3582(c)(1)(A)(i) – which establishes an ‘extraordinary and compelling” reason standard – without needing a motion from the Bureau of Prisons. Ohio State University law professor Doug Berman said last week in his Sentencing Law and Policy blog that “if applied appropriately and robustly, this provision could and should enable many hundreds (and perhaps many thousands) of federal prisoners to have excessive prison sentences reduced.”

A decision last week in the Southern District of Iowa denying Les Brown compassionate release illustrates the conundrum. Under 28 USC § 994(t), the Sentencing Commission is directed to define “the criteria to be applied and a list of specific extraordinary and compelling examples” for grant of § 3582(c)(1)(A)(i) motions. The Commission defined four examples, one medical, one due to age, one due to family circumstances, and one catch-all (that “there exists in the defendant’s case an extraordinary and compelling reason other than, or in combination with, the reasons described in subdivisions (A) through (C)).”

Now the problem: The USSC has not updated its definition since the First Step Act passed. Instead, its policy statement still simply guides the Bureau of Prisons (which has traditionally been very resistant to an Sentencing Commission guidance). The new procedure mandated by the First Step Act calls for new guidance, but the Commission remains mute.

noquorum191016Sadly, there’s a reason for the USSC’s quiescence. The Commission cannot amend its policy statement because the agency lost its quorum last December, about two weeks before First Step passed, and it is still two commissioners short of a quorum. The Trump Administration apparently sees the Commission as a backwater for which no urgency exists in nominating replacement commissioners. For the foreseeable future, the Commission remains impotent, and the compassionate release policy cannot not be updated.

Some district courts have concluded this means the Commission lacks any applicable policy statement dictating when a judge can grant compassionate release. These courts have decided that this means the district judge can consider anything — or at least anything the BOP could have considered (whether it did or not) — when assessing a defendant’s motion.

But others have held that First Step merely lets them grant a motion for compassionate release if the BOP Director could have done the same under the guidelines and the old Program Statement. These courts hold that judges may not stray beyond the four bases listed in USSG §1B1.13.

Sentencestack170404Last week’s ruling by Senior Judge Robert Pratt is a thoughtful opinion about compassionate release, issued in response to defendant Les Brown’s motion to reduce his 510-month sentence. That sentence was pumped up by a 300-month second 18 USC §924(c) sentence, one that could no longer be imposed since passage of the First Step Act. While Judge Pratt finds that “much about Defendant’s situation is extraordinary and compelling,” he concluded “the Court cannot exercise its discretion to grant release at this time.”

The Judge calculated that even if First Step let him retroactively reduce the second § 924(c) sentence from 300 months to 60 months (which the Act doe not permit), Les would still face a total of 210 months in prison. As of now, he has served only 167 months, “a long stretch by any measure, and perhaps more than appropriate for Defendant’s crimes. Regardless, because Defendant would still be in prison under modern law, any sentencing disparity created by § 924(c) stacking does not, at least yet, provide an ‘extraordinary and compelling reason’ for compassionate release.”

Judge Pratt suggested that Les could come back at 210 months to make his argument. For what it’s worth, I believe that by then, Congress will have revisited the issue and made the § 924(c) sentencing change retroactive, just as it did with the Fair Sentencing Act’s changes to crack minimums.

Prof. Berman complained that “Judge Pratt refuses to use the legal tool available to him to reduce Brown’s sentence, and so Brown is now still slated to serve nearly another 30 years in prison(!) that neither Congress nor any judge views as in any way justified by any sound sentencing purposes.” He is correct. However, until higher courts resolve the conundrum of the missing USSC guidance (or the Commission regains a quorum, and fixes the statement on its own), the present confusion is going to work to the detriment of a lot of inmates.

United States v. Brown, 2019 U.S. Dist. LEXIS 175424 (SD Iowa Oct. 8, 2019)

– Thomas L. Root

Spray Paint and Violence – What is Physical Force Against Property? – Update for September 11, 2019

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10TH CIRCUIT ADDRESSES WHEN FORCE AGAINST PROPERTY IS VIOLENT

giphyOne twist in 18 USC § 924(c)’s definition of “crime of violence” is that, unlike 18 USC § 16(b) or the Armed Career Criminal Act, the use of physical force under § 924(c) can be either against a person or his property. For a offense to be a “crime of violence,” it must require violent physical force. But when is force against someone’s property “violent physical force?”

Aaron Bowen was convicted of witness intimidation and brandishing a gun while doing so, in violation of 18 USC § 924. The witness intimidation statute, 18 USC § 1513, required that one retaliate against a witness by causing bodily injury to a person or by damaging the person’s property. Aaron filed a post-conviction motion under 28 USC § 2255 arguing that after Johnson and Davis, witness intimidation was not a crime of violence, and cannot support a § 924(c) conviction.

Last week, the 10th Circuit agreed. It first joined other circuits in holding that Davis is retroactive for § 2255 purposes. Because Davis declared § 924(c)’s residual clause unconstitutional, Aaron’s witness intimidation conviction could only support a § 924(c) conviction if it required violent physical force against a person or property.

paintcar190911

The 10th concluded that one could damage property without using violent physical force. It suggested, for example, that “although spray-painting another’s car damages that person’s property, we cannot conclude that the mere fact that it damages property means that it requires ‘violent force’.” Because the statute was not divisible between injuring people and damaging property, and because damaging property does not require violent force, the statute is not a crime of violence. Thus, Aaron’s § 924(c) conviction was thrown out.

United States v. Bowen, 2019 U.S. App. LEXIS 26554 (10th Cir. Sept. 3, 2019)

– Thomas L. Root

Supreme Court Davis Decision Declared Retroactive By 11th Circuit – Update for July 29, 2019

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11th CIRCUIT HOLDS DAVIS TO BE RETROACTIVE

I have been asked a lot in the last month whether the Supreme Court decision in United States v. Davis would apply retroactively to convictions for using or carrying a gun during a violent or drug crime (violation of 18 U.S.C. § 924(c)) that were already final when the Davis decision was handed down June 24th. While I have always been sure that Davis ought to be retroactive, I was never completely confident that the courts of appeal would agree with me.

retro190729Last Tuesday, the 11th Circuit surprised me in a good way. Faced with a motion for permission to file a second-or-successive § 2255 motion (known as a “2244” because the request is filed under 28 USC § 2244) by a defendant whose § 924(c) conviction was based on a solicitation-to-murder count (and thus was invalid under Davis), the Circuit ruled that Davis is retroactive.

This retroactivity rule is important, because it opens the door for people who have filed 2255 motions already to get permission to file a second one challenging their § 924(c) convictions under the Davis ruling. Davis, you may recall, (1) affirmed that the categorical approach to judging whether a prior conviction was a crime of violence is the appropriate standard, rejecting several circuits’ claims that in a § 924(c) review, the court should look at a defendant’s actual conduct; (2) effectively ruled that conspiracies to commit crimes of violence (as well as solicitations and, quite possibly, attempts and accessories charges) are not crimes of violence; and (3) ruled that the § 924(c) residual clause, like the Armed Career Criminal Act and 18 USC § 16(b) residual clauses, was unconstitutionally vague.

violence160110The 11th Circuit held that Davis met all of the requirements for retroactivity. Davis announced a new substantive rule, because just as Johnson narrowed the scope of the ACCA, Davis narrowed the scope of 924(c) by interpreting the term “crime of violence.” And, the Circuit said, the rule announced in Davis is “new” because it extended Johnson and Dimaya to a new statute and context. “The Supreme Court in Davis restricted for the first time the class of persons § 924(c) could punish,” the appeals court said, “and, thus, the government’s ability to impose punishments on defendants under that statute. Moreover, the Supreme Court’s grant of certiorari in Davis to resolve the circuit split on whether § 924(c)(3)(B) was unconstitutionally vague illustrates that the rule in Davis was not necessarily dictated by precedent or ‘apparent to all reasonable jurists’.”

While the Supreme Court has not held Davis to be retroactive, the 11th said, “the Supreme Court holdings in “multiple cases… necessarily dictates retroactivity of the new rule.” Davis announced a new substantive rule, the 11th held, “and Welch tells us that a new rule such as the one announced in Davis applies retroactively to criminal cases that became final before the new substantive rule was announced.”

Two days later, the 11th Circuit held that another defendant would be allowed to pursue his 924(c) claims under Davis, despite the fact he had tried and failed to do the same under Johnson and Dimaya. The fact that he had previously lost the same issue would not preclude a successive 2255, despite the fact that 11th Circuit precedent in In re Baptiste suggested otherwise. The court said the defendant’s “proposed Davis claim is not barred under In re Baptiste (concluding that a repeat § 2255 claim that was raised and rejected in a prior successive application is barred by [28 USC] 2244(b)(1)).” Although the rationale underlying Johnson and Dimaya on which the defendant’s prior successive applications were based is the same rationale that underlies Davis, his prior losses do not bar him raising the Johnson/Dimaya claim again, because “Davis announced a new substantive rule of constitutional law in its own right, separate and apart from (albeit primarily based on) Johnson and Dimaya.”

knuckles190729Other courts of appeal will have to weigh in on Davis retroactivity for inmates seeking 2244 permission in those circuits, but the 11th position, laid out in a detailed and well-reasoned published opinion, will wield substantial influence on those courts. The 11th, after, is notoriously stingy in granting 2244 motions (it was the circuit that turned down Greg Welch, whose case went on to establish that Johnson was retroactive in Welch v. United States), as well as the appeals court whose Ovalles opinion was directly contrary to what the Supreme Court decided in Davis). That this Circuit has articulated a basis for Davis retroactivity so soon after having its figurative knuckles rapped is a welcome surprise.

In re Hammoud, 2019 U.S. App. LEXIS 21950 (11th Cir. July 23, 2019)

In re Cannon, 2019 U.S. App. LEXIS 22238 (11th Cir. July 25. 2019)

– Thomas L. Root

SCOTUS Davis Decision Already Cutting Sentences – Update for July 16, 2019

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DAVIS IS ALREADY HELPING DEFENDANTS

The ink isn’t yet dry on the Supreme Court’s United States v. Davis decision, but it is already being applied by lower courts.

shortnorth190716The 6th Circuit didn’t do many favors to the Short North Posse when it upheld the convictions and sentences of five defendants who had been found guilty of all sorts of drug-related mayhem in Columbus, Ohio. Almost all of their appeal issues were shot down. Two of the five, however, won on a single issue, and it was a whopper.

For their participation in a home invasion and murder, Chris Harris and Cliff Robinson were convicted of murder by firearm during a crime of violence under 18 USC §§ 924(c) and (j)(1). The government, loving conspiracies as it does, based the pair’s § 924(c) convictions on conspiracy to commit a Hobbs Act robbery under 18 USC § 1951(a). After all, proving a conspiracy is much easier than proving a substantive act (like a robbery).

When the government charged Chris and Cliff and the rest of the Posse back in 2014, no one foresaw Johnson v. United States, the 2015 case in which the Supreme Court declared the residual clause of 18 USC § 924(e) unconstitutionally vagueness. In the Short North Posse appeal, the government was forced to admit that a conspiracy to commit a Hobbs Act robbery could only be a crime of violence under 18 USC § 924(c)(3)(B)’s residual clause. That clause holds that “a ‘crime of violence’ is a felony offense ‘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.”

violence160110On appeal, Chris and Cliff argued that their 924(c) convictions had to be vacated because § 924(c)’s residual clause is unconstitutionally vague. Naturally, the government argued that Johnson had nothing to do with § 924(c)’s residual clause. However, eight days before the Short North Posse decision, the Supreme Court held in Davis that  the § 924(c) residual clause suffered from the same infirmity that Johnson invalidated. 

Davis conclusively held that a conspiracy to commit a violent act, no matter how violent the act, is not a “crime of violence” under 18 USC § 924(c). Thus, the Short North Posse decision held that “[b]ecause the Government relies only on that now-invalidated clause to support [Chris and Cliff’s] convictions under § 924(c), those convictions must be set aside.”

This is the first Davis win I have seen. There will surely be many to follow.

United States v. Ledbetter, 2019 U.S. App. LEXIS 19918 (6th Cir. July 3, 2019)

– Thomas L. Root

October Term 2018 Ends With A Whimper – Update for July 1, 2019

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THE SUPREME COURT’S OUT FOR SUMMER… BUT NOT FOREVER

scotus170627The Supreme Court stumbled across the finish line of its current session (called October Term 2018, because that’s when it began) last Friday, ending with a couple of fumbles and a punt. There will be nothing more from the nine Justices – except for the occasional action on a stay of execution – until the “long conference” in the last week of September. 

Then, come Monday, October 7, 2019… the Court will be back at it with October Term 2019.

The last week started out to be a significant one for federal criminal law. Last Monday, the Court handed down the Davis decision, with United States v. Haymond following two days later. For those who follow the Court for criminal law, that just left Mitchell v. Wisconsin and Carpenter v. Murphy for the Court’s final day on Thursday. Mitchell was a 4th Amendment case, asking whether blood can be drawn from an unconscious motorist without a warrant (yes, it can). Carpenter is a big deal for Oklahoma, Native Americans and the many states with reservations inside their borders, because the 10th Circuit held that most of eastern Oklahoma – including the City of Tulsa – still belonged to the Cherokee Nation. It also matters to anyone with a prior Oklahoma state conviction from that area, because all of those convictions might be invalid.

On Thursday, the Court issued big decisions on the census form citizenship question and how Congressional districts are drawn, in each case sort of kicking the can down the road. So it was no surprise when the Chief Justice announced that Carpenter will not be decided this year, but instead will get reargued in the fall.

domino190422But remember how Davis was called Johnson’s “last domino?” Well, it is not. On Friday, the Court issued its final order list of the Term, granting review to Shular v. United States, another case raising an important issue in the application of the Armed Career Criminal Act, this one on the drug trafficking side. For an ACCA conviction, you have to have three prior convictions that are crimes of violence or drug cases. In Shular, the question is whether the determination of a “serious drug offense” under the ACCA requires the same categorical approach used in the determination of a violent felony, the approach just approved in Davis. There is little doubt that the holding will apply to drug crimes underlying 18 U.S.C. § 924(c) convictions – mandatory consecutive sentences starting at five years for using a gun in a drug offense or crime of violence – as well.

Also, in Kisor v. Willkie, a case that asks whether a court must defer to an agency interpretation of its own ambiguous regulation, the Court last Thursday declined to overrule a longstanding line of cases instructing courts to defer to an agency’s interpretation of its own regulation, but at the same time, he suggested that the doctrine does not apply in every case where an agency is interpreting its own rules. The tepid ruling leaves the deference doctrine a muddled mess the Court will almost certainly have to address again.

United States v. Davis, Case No. 18-431 (decided June 24, 2019)

United States v. Haymond, Case No. 17-1672 (decided June 26, 2019)

Carpenter v. MurphyCase No., Case No. 17-1107 (to be reargued in Fall 2019)

Kisor v.  Willkie, Case No. 18-15 (decided June 27, 2019)

Shular v. United States, Case No. 18-6662 (cert. granted June 28, 2019)

– Thomas L. Root

Davis Lives! 924(c)(3)(B) Residual Clause Held to be Unconstitutionally Vague – Update for June 25, 2019

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THE LAST JOHNSON DOMINO FALLS

By a 5-4 vote, the Supreme Court yesterday upheld the categorical approach to judging whether offenses were crimes of violence, ruling that 18 USC § 924(c)(3)(B) is unconstitutionally vague.

Justice Neil Gorsuch wrote in the majority opinion that “[i]n our constitutional order, a vague law is no law at all.”

vagueness160110The vagueness doctrine rests on the twin constitutional pillars of due process and separation of powers. Having applied the doctrine in two cases involving statutes that “bear more than a passing resemblance to § 924(c)(3)(B)’s residual clause” – those being Johnson v. United States (Armed Career Criminal Act residual clause unconstitutional) and Sessions v. Dimaya (18 USC § 16(b) residual clause unconstitutional) – the Court completed its frolic through the residual clauses in the criminal code.

Courts use the “categorical approach” to determine whether an offense qualified as a violent felony or crime of violence. Judges had to disregard how the defendant actually committed the offense and instead imagine the degree of risk that would attend the idealized “‘ordinary case’ ” of the offense.

The lower courts have long held § 924(c)(3)(B) to require the same categorical approach. After the 11th Circuit’s decision in Ovalles, the government advanced the argument everywhere that for § 924(c)(3)(B), courts should abandon the traditional categorical approach and use instead a case-specific approach that would look at the defendant’s actual conduct in the predicate crime.

The Supreme Court rejected that, holding that while the case-specific approach would avoid the vagueness problems that doomed the statutes in Johnson and Dimaya and would not yield to the same practical and Sixth Amendment complications that a case-specific approach under the ACCA and § 16(b) would, “this approach finds no support in § 924(c)’s text, context, and history.”

hathanded190625The government campaign came to a head in Davis, a 5th Circuit case in which the appellate court said that conspiracy to commit a violent crime was not a crime of violence, because it depended on the § 924(c)(3)(B) residual clause. The Dept. of Justice felt confident enough to roll the dice on certiorari. Yesterday, the DOJ had its hat handed to it.

Who does this benefit? Principally, it benefits anyone who received a § 924(c) enhanced sentence for an underlying conspiracy charge. Beyond that, it helps anyone else whose “crime of violence” depended on the discredited § 924(c)(3)(B) residual clause.

The Court did not rule that Davis is retroactive for 28 USC § 2255  post-conviction collateral attack purposes, because that question was not before it. SCOTUS never rules on retroactivity in the same opinion that holds a statute unconstitutional. There is little doubt that, if Johnson was retroactive because of Welch, Davis will be held to be retro as well.

United States v. Davis, Case No. 18-431 (Supreme Court, June 24, 2019)

ARE 59(e) MOTIONS ‘SECOND OR SUCCESSIVE’ 2255s?

A number of lower courts have ruled that an unsuccessful § 2255 movant who files a motion to alter the judgment under Fed.R.Civ.P. 59(e) may be filing a second-or-successive § 2255 motion requiring prior approval.

HobsonsChoiceThis leaves § 2255 movants with a Hobson’s choice. Filing a 59(e) stays the time for filing a notice of appeal. But if the court sits on the 59(e) past the notice of appeal deadline, and then dismisses it as second-or-successive, the § 2255 movant has missed the notice of appeal deadline with the Court of Appeals. If the movant files a notice of appeal to preserve his or her rights, that nullifies the 59(e).

Right now, the only logical election is to ignore Rule 59(e) motions altogether.

Yesterday, the Court granted review in yet another “Davis” case, asking whether the 59(e) motion should be considered second or successive such that it requires the grant of permission under 28 USC § 2244. We’ll have an answer next year.

Banister v. Davis, Case No. 18-6943 (certiorari granted, June 24, 2019)

– Thomas L. Root

A Trio of Sentencing Cases – Update for May 22, 2019

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2-0-1 ON SENTENCING ACTIONS LAST WEEK

Three separate proceedings on sentencing or sentence reduction came to our attention last week, unrelated except for the possibilities they represent.

colostomy190523First, Steve Gass asked his court for a compassionate release. While doing 106 months for six bank robberies (Mr. Gass preferred using a note rather than a gun in each of them), Steve was diagnosed with a malignant tumor located in his rectal wall. The tumor was successfully removed, but along with it, he lost his rectum and anus. The procedure left him dependent on a colostomy bag and subject to what the Court euphemistically called “special hygiene requirements” and heightened medical monitoring. (Having had a colostomy bag for six terrible weeks once, I have some sense of those “special” requirements – a gas mask and a gasoline-powered power washer are on the list).

While Steve had beaten the cancer, he argued, his current condition is nevertheless “both serious and difficult to manage in a prison setting, marked neither by enhanced sanitary conditions appropriate for colostomy-dependent patients or heightened monitoring necessary to prevent secondary effects of infection or recurrence of a malignancy.” Clearly, the tumor did not affect Steve’s remarkable capacity for understatement.

The government, being the caring and benevolent organism that it is, argued that Steve had “recovered” from colorectal cancer, so his colostomy condition – which he could and would have to manage for the rest of his life – cannot qualify as the kind of “extraordinary and compelling” reason for a reduction anticipated by 18 USC § 3582(c)(1)(A)(i).

compassion160124The district court, recognizing the government’s disingenuous argument for being the same substance that fills Steve’s colostomy bag – ruled that Steve had “shown that his physical and medical condition substantially diminishes his ability to provide self-care within the environment of a correctional facility. And this is not a condition that [he] will ever recover from — he will be device dependent and subject to enhanced hygiene and monitoring requirements for the rest of his life.” The court, with a gift for understatement the equal of Steve’s, thus held that the permanent colostomy was extraordinary and compelling enough.

Still, the court did not shorten Steve’s sentence. Rather, it creatively resentenced Steve to the time remaining on his sentence, but ordered Steve to home confinement for the remaining 28 months or so he had to serve. The decision showcases how the sentence reduction power can be employed with precision to fashion modifications that address the prisoner’s situation without simply letting recipients out to run amok

*     *     *

gunknot181009In the 6th Circuit, Dave Warren got a statutory maximum 120-month sentence for being a felon in possession of a gun in violation of 18 USC § 922(g)(1). Both he and the government sought a sentence somewhere within his 51-63 month Guidelines range. But the judge was convinced that Dave’s criminal history made him “a high risk offender… an individual that must be deterred. 51 to 63 months… considering the danger this individual poses to the community, is nowhere in my view close to what is required.”

Last week, the 6th Circuit reversed the sentence. The appeals court noted that “because the Guidelines already account for a defendant’s criminal history, imposing an extreme variance based on that same criminal history is inconsistent with the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct…”

“We do not mean to imply that only a sentence in or around that range will avoid disparities with other similar defendants,” the Court wrote. “But we do not see how the sentence imposed here avoids them.” Because the district court’s discussion of whether its 120-month sentence avoided unwarranted sentencing disparities depended only on criminal history factors already addressed by the Guidelines, the 6th said, the district court relied “on a problem common to all” defendants within the same criminal history category Dave fell into – that is, that they all have an extensive criminal history – and thus did not provide “a sufficiently compelling reason to justify imposing the greatest possible deviation from the Guidelines-recommended sentence in this case.”

*     *     *

Robber160229Finally, I recently reported on a remarkable “Holloway”-type motion in Chad Marks’ case. Chad was convicted of a couple of bank robberies, but unlike Steve Gass, Chad did carry a gun. Under 18 USC § 924(c), using or carrying a gun during a crime of violence or drug deal adds a mandatory five years onto your sentence. If you are convicted of a second 924(c) offense, the minimum additional sentence is 25 years. Unfortunately, the statute was poorly written, so that if you carry a gun to a bank robbery on Monday, and then do it again on Tuesday, you will be sentenced for the robberies, and then have a mandatory 30 years added to the end of the sentence, five years for Monday’s gun, and 25 years for Tuesday’s gun.

Congress always meant that the second offense’s 25 years should apply only after conviction for the first one, but it did not get around to fixing the statute until last year’s First Step Act adopted Sec. 403. But to satisfy the troglodytes in the Senate (yes, Sen. Tom Cotton, R-Arkansas, I mean you), the change the law was not made retroactive.

grad190524Chad has served 20 years, during which time he has gone from a nihilistic young miscreant to a college-educated inmate teacher and mentor. The federal judge who sentenced Chad 20 years ago recognizes that post-conviction procedure is so restricted that the court can do nothing, but he asked in an order that the U.S. Attorney “carefully consider exercising his discretion to agree to an order vacating one of Marks’ two Section 924(c) convictions. This would eliminate the mandatory 25-year term that is now contrary to the present provisions of the statute.”

Since then, Chad Marks’ appointed counsel has filed a lengthy recitation of the defendant’s extraordinary BOP record. Despite this, and despite the fact that over two months have elapsed since the judge’s request to the U.S. Attorney, the government has not seen fit to say as much as one word about the matter.

Order, United States v. Gass, Case No. 10-60125-CR (SDFL Apr. 30, 2019)

United States v. Warren, 2019 U.S. App. LEXIS 14005 (6th Cir. May 10, 2019)

Order, United States v. Marks, Case No. 03-cr-6033 (WDNY, Mar. 14, 2019)

– Thomas L. Root

Judge Weinstein (As Usual) Provides Detailed Opinion on Crack Resentencing – Update for May 1, 2019

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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.

WISDOM OF THE ANCIENTS

weinstein160516At age 92, Senior Judge Jack Weinstein is not only still on the Eastern District of New York federal bench, but he remains one of the most industrious and thoughtful federal judges in America, a jurist prone to issuing detailed and resource-rich decision.

In a 15-page opinion hand down last week, Judge Weinstein released Cheyenne Simons under the retroactive Fair Sentencing Act after Chey had served 11 years of his 12-year sentence. This does not sound like such a big deal (a 9% discount on the original immurement), except that as a Guidelines career offender with 50 grams of crack, Cheyenne had faced a 262-month minimum Guidelines advisory sentencing range term in 2008, when Judge Weinstein sentenced him to 144 months instead. What’s more, because of a quirk in how EDNY was applying 18 USC 924(c)’s mandatory consecutive sentence (for using a gun in a drug trafficking crime) back then – a quirk since remedied by the Supreme Court in Abbott v. United States –  Chey did not get a 5-year mandatory consecutive sentence for the gun charge then. Unfortunately, he was obligated to get it now.

Cheyenne had pled to 50 grams of crack, but at the 2008 sentencing, the court attributed over 500 grams of crack to him for Guidelines sentencing purposes. The government argued that under the FSA resentencing, the 500 grams made him subject to the new 280-gram 10-year minimum. Judge Weinstein refused:

Any argument that Simons is ineligible for relief on the basis that his actual conduct involved distribution of 280 grams or more of cocaine base, triggering the 841(b)(1)(A) penalties and a 10-year minimum term of imprisonment, is unsound. Statutory penalties are determined by facts submitted to a grand jury, a trial jury, or established by a guilty plea. Findings by a judge… may be used to determine a sentence within the statutory penalties, but do not establish statutory penalties and cannot change the mandatory minimum sentence now applicable.

release160523Although the 924(c) penalty left Chey’s Guidelines at 262-327 months, Judge Weinstein held that the retroactive FSA gave him the discretionary authority to reduce the sentence. Because Chey had “taken substantial steps during his period of incarceration to achieve the rehabilitative goals sought by the original sentence imposed,” Judge Weinstein set him free.

United States v. Simons, 2019 U.S. Dist. LEXIS 67964 (EDNY, Apr. 22, 2019)

– Thomas L. Root