Tag Archives: 924(c)

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

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

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

One Lost, One Still in Certiorari Limbo – Update for March 5, 2019

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LAST WEEK’S SCORE IS 0-1-1 ON SCOTUS CERTIORARI

Two Supreme Court petitions for certiorari (which is how parties get the Court to take their cases for review) came up last week, leaving our score 0-1-1.

jenga190305The petition in United States v. Rivera–Ruperto, important to people with stacked 924(c) sentences, who were left behind by the First Step Act’s nonretroactivity, asked whether 160 years for a defendant who carried a gun to multiple government-staged drug buys could get 130 years’ worth of stacked 924(c) sentences complied with the 8th Amendment ban on cruel and unusual punishments. Despite a lot of interest in the criminal justice community that this argument be addressed (and the 1st Circuit’s remarkable en banc opinion asking SCOTUS to take up the issue), the Supremes denied certiorari last week without further comment.

Meanwhile, the government’s request for certiorari in United States v. Wheeler was relisted a second time, and yesterday appeared to be relisted yet again. As noted last week, Wheeler asks whether a prisoner whose 2255 motion challenging a statutory minimum was denied based on current circuit precedent may later seek habeas relief in a 2241 petition (allowed by the 2255(e) “escape clause”) on the ground that the circuit’s interpretation of the statutory minimum has changed. A relist does not mean that cert will be granted, but it increases the odds.

Beneath the surface in Wheeler there is percolating a mootness battle. The 4th Circuit refused to stay its decision in the case, instead issuing the mandate – which is the green light for the district court to apply its holding – nine months ago. Last week, the district court got around to resentencing defendant Gerald Wheeler, and reduced his sentence to time served. Gerry walked out the door a free man, having had whopping eight months cut off his 120-month sentence.

mootness190305In an inversion of what usually goes on at the Supreme Court – a defendant begs to be heard while the Dept. of Justice Solicitor General’s office argues the case is unworthy of review – the government filed a letter with SCOTUS last week arguing that “the grant of habeas relief to shorten [Gerald’s] term of imprisonment means that this case ‘continue[s] to present a live controversy regarding the permissibility of such relief.’”  Gerry’s lawyers, showing their irritation at the government’s conduct in the case, shot back that the Supremes should take a hard pass on this one:

The district court entered its written judgment on March 1, 2019, and Mr. Wheeler has filed a notice of appeal to challenge one aspect of the district court’s resentencing decision. During the course of those appeal proceedings, the government will have the opportunity to ask the en banc Fourth Circuit to reverse the panel decision… Given that the government recently—in the middle of this case—changed a two- decades-old position regarding its interpretation of § 2241, the opportunity for additional percolation in the courts of appeals would be beneficial for this Court’s ultimate review.

Now one might wonder why Gerry, now a free man (to the extent that anyone on supervised release is truly free) would have found anything to appeal in a “time served” sentence. No one involved in the case has Skyped me to explain this, but I suspect his lawyers, whose primary duty to their client was to get him out of prison, filed the notice of appeal in order to be able to do exactly what they have done: to argue that because the case is headed back to the 4th Circuit, the Supreme Court does not need to take it up at this time.

The Supreme Court neither granted nor denied certiorari on the case yesterday, suggesting yet another realist. The Court undoubtedly wanted to digest the dueling letters it received at the end of last week.

lovelawyerB170811My selfish view is that I would like the Supreme Court to settle the issue on the 2255(e) “escape clause,” going with the ten circuits that recognize the legitimate use of a 28 USC 2241 petition in cases like Gerald’s. But Gerald’s lawyers – the Federal Public Defender in the Western District of North Carolina – are doing some first-rate lawyering for their client. As a result, he awoke last Saturday in his own bed for the first time in almost a decade.

That’s what good criminal defense lawyering is all about.

Sentencing Law and Policy, After swift cert denial in Rivera-Ruperto, should I just give up hoping for an improved Eighth Amendment to check extreme non-capital sentences? (Feb. 25)

United States v. Wheeler, Case No. 18-420 (Sup.Ct.) petition for certiorari pending)

– Thomas L. Root

Unintended Consequences – Does First Step Act Open Up 8th Amendment Argument? – Update for February 18, 2019

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DOES FIRST STEP OPEN WINDOW FOR 8TH AMENDMENT CLAIM ON HARSH GUN SENTENCES?

Ohio State University law professor Doug Berman asked this interesting question in a post on his Sentencing Law and Policy blog last week.

Prof. Berman noted that First Step Act Sec. 403, “described as a ‘clarification of Section 924(c),’ eliminates the required “stacking” of 25-year mandatory minimums for multiple 924(c) counts at the same time… Sadly, Congress did not make Section 403 of the First Step Act retroactive, and thus defendants previously subject to these extreme stacked sentences will get no direct relief from the new Act.”

Sentencestack170404In 2010, Wendell Rivera–Ruperto was paid by undercover FBI informants to serve as “armed security” at six fake drug deals, and received a 162-year sentence, of which 130 years were for his six stacked 924(c) convictions. In a 1st Circuit decision last year, Wendell was denied rehearing en banc despite one judge’s complaint that courts “have no choice but to approve mandatory ‘forever’ sentences… so long as they can hypothesize a rational reason for the legislature to have thought that the underlying criminal conduct was [so] serious…” The dissenting judge hoped for Supreme Court review.

SCOTUS has incorporated a proportionality analysis into the cruel and unusual punishment analysis required in capital cases. In Harmelin v. Michigan, the defendant asked the Court to extend the reach of that analysis to noncapital cases such as his life sentence for 650 grams of cocaine. Five Justices agreed that Harmelin’s sentence was not unconstitutionally cruel and unusual, but six Justices agreed that the Cruel and Unusual Punishment Clause bore some kind of proportionality analysis. Among those six, three supported a proportionality principle that deferred to legislative judgments, while three others supported a more searching proportionality analysis that would have struck down the mandatory life sentence.

cruel190218This Friday, the Justices will consider whether to review the case. “Notably, and not surprisingly,” Prof. Berman wrote, “the feds now say in opposition to cert that passage of the First Step Act reduces the important of the case: ‘future defendants in petitioner’s position will not be subject to mandatory consecutive sentences of at least 25 years [and the] question presented by his case therefore has diminishing significance’.” But “the fact that the 8th Amendment is supposed to take guidance from an ‘evolving standards of decency’ and be responsive to a ‘national consensus’ against a sentence, I strongly believe the enactment of the First Step Act primarily operates to make Wendell Rivera–Ruperto’s constitutional claim even more substantively potent.”

Justice Kennedy’s retirement last summer creates a window of opportunity for advocates to urge overturning (or cutting back) Harmelin’s 8th Amendment precedent. “Thus,” Berman said, “I am rooting super hard for the Justices to grant cert in Rivera–Ruperto.” Grant of cert in this case, which Berman calls “potentially the biggest non-capital Eighth Amendment case in a generation,” might open other stacking cases to 8th Amendment review.

Sentencing Law and Policy, Doesn’t the FIRST STEP Act add juice to Eighth Amendment challenge to extreme stacked 924(c) sentence in Rivera-Ruperto? (Feb. 10)

Rivera-Ruperto v. United States, Case No. 18-5384 (Supreme Ct.)

– Thomas L. Root

Simms Raises the Ante on 924(c) Crimes of Violence – Update for January 28, 2019

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4TH CIRCUIT SIMMS DECISION TEES UP 924(c) DEBATE FOR SUPREME COURT

The vigorous debate since the Supreme Court decided Sessions v. Dimaya last year at first seemed to surround whether the residual clause of 18 USC 924(c) – which defines “crime of violence” to include any offense that “by its nature, involves a substantial risk that physical force against the person or property of another” – was unconstitutionally vague. That is what the Supreme Court said about the same language in the Armed Career Criminal Act (in Johnson v. United States) and in Dimaya last spring referring to 18 USC 16(b).

violence181008But in the last few months, the argument has morphed into some more basic: when judging whether the offense underlying an 18 USC 924(c) charge is violent, should a court use the categorical approach (which asks whether the offense in its ordinary form is violent, not what the defendant did in the particular case under review)? Or should the court instead look only at how the defendant in the case under review committed the offense?

Three circuits have embraced the conduct-based approach, the 1st in United States v. Douglas, the 2nd in United States v. Barrett, and the 11th in Ovalles v. United States. Three others have backed the categorical approach, the 5th in United States v. Davis, the 10th in United States v. Salas, and the D.C. Circuit in United States v. Eshetu. Two weeks ago, the Supreme Court granted the government’s petition to review the 5th Circuit’s Davis decision.

The Circuit split deepened last Thursday with the 4th Circuit’s long-awaited decision in United States v. Simms. In a contentious 100-page decision, the en banc Circuit decided 8-7 that whether an underlying offense supporting a 924(c) conviction is a crime of violence, a trial court must use the categorical approach the Supreme Court adopted and used in Leocal v. Ashcroft. What’s more, using the categorical approach, the 4th said, it is clear that a conspiracy to commit a Hobbs Act robbery (18 USC 1951) is not a crime of violence.

By extension, this means that in the 4th Circuit, no conspiracy to commit a violent crime is itself a violent crime (although it is in the 2nd Circuit).

violence160110The 4th Circuit focused on the phrase “by its nature” in 924(c)(3)(B), saying that the language directs courts to consider only the basic or inherent features of “an offense that is a felony,” and that the phrase “directs courts to figure out what an offense normally… entails, not what happened to occur on one occasion. Had Congress intended a conduct-specific analysis instead, it presumably would have said so; other statutes, in other contexts, speak in just that way… We cannot adopt a reading of 924(c)(3)(B) that renders part of the statute superfluous over one that gives effect to its ‘every clause and word’.”

As important as Simms may be to the 924(c) debate, it is clear that it is not the last word. The Supreme Court is going to resolve the sharp circuit split in Davis as early as June, although it is could well hold off oral argument and a decision to the term beginning in October 2019.

United States v. Simms, 2019 U.S. App. LEXIS 2341 (4th Cir. Jan. 24, 2019)

– Thomas L. Root

Dimaya Redux at the Supreme Court? – Update for January 7, 2019

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SUPREME COURT GRANTS CERTIORARI TO 924(C) CASE

After the Supreme Court decision last spring in Sessions v. Dimaya, a lot of people doing time for using a gun during a crime of violence had hoped to attack their 18 USC 924(c) convictions by arguing the underlying crime was not violent.

gunb160201Section 924(c) outlaws using, carrying, or possessing a firearm in connection with a drug offense or “crime of violence.” “Crime of violence” is defined in subsection (c)(3)(B) to be a crime in which force is used or threatened against the person or property of another (the “elements clause”) or any a felony “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,” known as the residual clause.

In Johnson v. United States and, later, in Dimaya, the Supreme Court invalidated similar residual clauses as violating due process because of vagueness.

After Dimaya, the courts of appeal entertained a spate of cases arguing that if 18 USC 16(b) (the residual clause found unconstitutional in Dimaya) was invalid, so was the identically-worded clause in § 924(c)(3)(B). Last September, the 5th Circuit became the first appellate court to decide the matter, holding in United States v. Davis that it would use the same “categorical approach” approved by the Supreme Court in Johnson and Dimaya when applying § 924(c)(3)(B) to the underlying offense. Doing so, the Court said, there was no doubt that 924(c)(3)(B) was unconstitutional.

A number of other circuits have differed with the 5th since then. Most recently, the 2nd ruled in United States v. Barrett and the 11th held in Ovalles v. United States that § 924(c)(3)(B) survives Johnson and Dimaya. Those circuits agree that, first, 18 USC 924(c) is a criminal offense that requires a determination of guilt beyond a reasonable doubt of the underlying offense by a jury in the same proceeding. For that reason, the categorical approach – which requires a reviewing court to ‘imagine’ an “idealized ordinary case of the crime” and which would render the 924(c) residual clause unconstitutional – need not be employed. Instead, those circuits used a conduct-based approach, looking at how the defendant actually committed the underlying crime instead of employing some “least violent hypothetical.” See “Circuits Busy Shutting Down 924(C) Dimaya Claims,” Newsletter, Oct. 8, 2018.

scotus161130Naturally, the government prefers the approach favored by every court except the 5th Circuit. Last Friday, the Supreme Court granted the government’s petition for certiorari to challenge the 5th Circuit’s use of the categorical approach in Davis. In that case, the 5th held the defendants’ 924(c) conviction could not stand, because it was based on conspiracy to commit a Hobbs Act robbery. A conspiracy itself does not use force or threat of force, the Circuit reasoned, so it only could be a crime of violence under 924(c)’s residual clause. Because that clause was identical to the crime of violence residual clause declared unconstitutional in Dimaya, the 5th Circuit held conspiracy to commit a crime of violence could not constitutionally support a 924(c) conviction under the residual clause in that statute, either.

It is possible there will be a decision by June, but it is more likely the case will not be argued until the fall.

United States v. Davis, Case No. 18-431 (certiorari granted Jan. 4, 2018)

– Thomas L. Root

You’ve Got Questions, We’ve Got Blank Stares – Update for December 27, 2018

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QUESTIONS ANYONE?

questions181227Yesterday, we presented a précis on the First Step Act. It didn’t help much. We have logged over 600 emails asking questions about the effect of the First Step Act on the sentences of existing inmates, and they continue to pour in.

Did we not make everything pellucidly clear?

Apparently not. Here are the most popular questions and our answers:

•   What sentencing changes are retroactive?

Only people with pre-Fair Sentencing Act crack sentences get retroactive relief. There is no retroactive relief for 18 USC 924(c) stacking, for denial of safety valve, or for 851 sentencing enhancements.

That is not to say that these changes will not come, just like the Fair Sentencing Act – which conservatives would not vote for if it was retroactive – finally became retroactive eight years later. But for now, the people with 924(c) stacked sentences, 851 life and 20-year sentences, and non-safety valve sentences are out of luck.

•   How about the seven days extra good time? Is it retroactive?

Yes.

•   When will I get the seven days extra good time?

This question is on everyone’s lips. The change in federal inmates’ sentence computation will be performed by the Bureau of Prisons’ Designation and Sentence Computation Center in Grand Prairie, Texas. It should not be difficult to do, and it is hardly as though BOP did not know this was coming. However, the BOP is a bureaucracy, and no one in a bureaucracy is going to be daring or self-starting enough to throw the switch just because some blow-dried President in Washington, D.C., makes something binding federal law.

As of last Friday afternoon, DSCC said it was waiting for guidance from the Dept. of Justice. Inasmuch as Monday and Tuesday were federal holidays, we doubt anything was forthcoming on those days. Whether DSCC is even staffed, due to the partial government shutdown, is not clear.

Yet, the BOP faces liability for holding people past their release dates, and as of last Friday, nearly everyone’s release date changed. We talked to DSCC today, and we were told that it still awaits direction from DOJ, and does not expect that for two to three weeks. No one appears to be in a hurry there.

That’s the long answer. The short answer is that we don’t know.

creditsign181227•   How about programs I have already completed? Are credits retroactive?

No, the credits are not. However, a change in 18 USC 3621(h) provides that “beginning on the date of enactment of this subsection, the Bureau of Prisons may begin to expand any evidence-based recidivism reduction programs and productive activities that exist at a prison as of such date, and may offer to prisoners who successfully participate in such programs and activities the incentives and rewards described in subchapter D.” We cautiously interpret this to mean that the BOP can start giving credits for programs successfully completed at any time after last Friday. This does not require the BOP to do so, but it is out there.

•   Are all 924(c) offenses ineligible for earned-time credit?

The Act excludes from earned time credits any offense of conviction under “924(c), relating to unlawful possession or use of a firearm during and in relation to any crime of violence or drug trafficking crime.” We read this to exclude all 924(c)s, whether for a crime of violence or for drugs.

•   If you have a 2-level enhancement to your drug conviction for a gun, are you excluded?

No, only a statutory 924(c) conviction excludes you.

miracle181227•   When is First Step effective?

Unless a law says otherwise, it is effective when the president signs it. But do not expect miracles. For the earned time credits, the Attorney General has seven months (until late July 2019) to develop the risk assessment system. The BOP then has 180 days to apply the risk assessment system to everyone and identify the programs that it believes will reduce recidivism (by late January 2020). The BOP then has two years (by January 2022) to fully ramp up the system.

During the initial two years of the program, the First Step Act anticipates, there will be more people wanting programs than there will be program space. The BOP is to put people nearest the end of their sentences in the programs first.

The Elderly Home Detention Program has never had a BOP program statement that implemented it, because it was limited in time and location. The BOP will have to develop procedures to process and judge applications. Nothing prevents someone from applying right away – and we recommend using 34 USC 60541(g)(5)(A) as a guide – but do not expect speedy processing.

Our take about compassionate release, however, is that Congress intends that it be implemented immediately. What is more, the BOP has procedures for dealing with compassionate release applications. While its history of doing so is not especially honorable, there is no need for delay while the BOP spools up a program statement on how to process them.

Nothing else in First Step should require any time for implementation. New or renewed requests for home confinement instead of halfway house, transfers to closer-to-home locations and the extra seven days should be immediate. How quickly the BOP updates sentences to account for the extra seven days is anyone’s guess, but a lot of people with short time will need that done immediately. (See answer above)

•   How do you file for a reduction in a crack sentence because of FSA retroactivity?

You file a motion under 18 USC 3582(c)(2). You should check with the federal public defender in the district in which you were sentenced. Many court ordered the FPD to represent people eligible under 3582(c)(2).

•   Are Guidelines 4B1.1. career offenders excluded from anything under First Step?

No. If you are excluded, it is because of a statute you were convinced of violating.

•   If I was convicted of a crime of violence or a sex offense in my past, does that exclude me from getting earned time credits?

No. Only your current offense will exclude you.

• Who is excluded?

We’ll cover that tomorrow.

now181227•   How soon can people start receiving credits?

Credits could start to accrue as early as the end of July 2019. The Act anticipates that it could take up to two years for the program to completely spool up, and preference will be given to the people who are short time first. This could mean that people with longer dates will not start getting earned time credits right away.

However, there had been discussion that BOP could be expansive in its interpretation of what constituted programs that lessened recidivism, and it could even include UNICOR employment and adult education classes.

•    Did your 21 USC 851 10-year sentence drop to 5 years?

No. Drug sentence enhanced by an 851 notice due to prior drug or state convictions changed, but only natural life (fell to 25 years to life), and 20 years (fell to 15 years to life). Nothing beyond that. And the change is not retroactive.

•   If you are excluded from getting earned time credits, how much halfway house/home confinement will you get?

The Second Chance Act still applies, and theoretically, you are entitled to up to 12 months of halfway house. The BOP has been very stingy with halfway house in the last year and a half, however, and no one knows what the BOP will do.

•   For EOHD, do you serve two-thirds of your sentence or two-thirds of the time between you start and you get good-time release?

If you got 180 months, for example, you serve 120 months. If you get EOHD, you will be on home confinement for 33 months. At 1053 months, you are released on good-time release.

•   If you get 12 months off for RDAP, can you get another 12 months off for earned time credits?

Theoretically, the one does not affect the other. But the BOP has the option to credit you with more halfway house or a shorter sentence, and no one knows how the BOP will decide to apply the earned time credits. No one in Congress discussed this, or, to our knowledge, even thought about it. Some things, like Donald Rumsfeld liked to say, are unknown unknowns.

S.756, First Step Act, passed into law Dec. 21, 2018

– Thomas L. Root

5th Circuit Holds Conspiracy to Rob Not a Violent Crime – Update for November 8, 2018

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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.

924(c) AND HOBBS ACT ROBBERY GETS EVEN MORE CONFUSING

We have reported over the past few weeks that a number of Circuits have held, in the wake of Sessions v. Dimaya, that determining whether the crime underlying an 18 USC 924(c) conviction for using or carrying a gun during a crime of violence had to be conduct-specific or case-specific, as opposed to a hypothetical ordinary-case categorical approach.

Robber160229The 5th Circuit reminded us last week that, curiously enough, it is the outlier. In United States v. Lewis, the Circuit repeated its holding last summer in United States v. Davis that conspiracy to commit a Hobbs Act robbery cannot support a conviction for using or carrying a gun under 18 USC 924(c).

How long the 5th Circuit’s position lasts is anyone’s guess. The government filed a petition for writ of certiorari in Davis last month, arguing that the 5th Circuit’s use of the ordinary-case categorical approach in 924(c) cases is at odds with everyone else, and is just plain wrong. Given the stark circuit split and the importance of the issue, we think the government’s chance to win certiorari on the issue is better than even.

United States v. Lewis, Case No. 17-50526 (5th Cir. Nov. 1, 2018)

United States v. Davis, Supreme Court Case No. 18-431 (petition for certiorari filed Oct. 3, 2018)

– Thomas L. Root

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Another Circuit Rejects Categorical Approach to Hobbs Act/924(c) Case – Update for October 24, 2018

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

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1ST CIRCUIT HOLD 924(c) IMMUNE TO DIMAYA ATTACK

After Sessions v. Dimaya, a lot of people doing time for using a gun during a crime of violence have hoped to attack their 18 USC 924(c) convictions by arguing the underlying crime was not violent. Two weeks ago, we reported that the 2nd and 11th Circuits had shut down Dimaya attacks on 924(c). Last week, the 1st Circuit joined them.

gunfreezone170330Section 924(c) makes it punishable by a minimum five-year consecutive sentence, to use, carry, or possess a firearm in connection with a “crime of violence.” The “residual clause” of 924(c) defines “crime of violence” to mean a felony “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.” In Johnson v. United States and, later, in Dimaya, the Supreme Court invalidated similar residual clauses on vagueness grounds. 

Ishmael Douglas was convicted of a Hobbs Act robbery and a 924(c) count. He argued that under the categorical approach, which looks at the minimum conduct sufficient to violate the statute regardless of what the defendant may actually have done, his robbery could not be considered to be a crime of violence.

The 1st Circuit rejected Ishmael’s argument that 924(c)’s crime of violence definition is void for vagueness. “That is because,” the Circuit said, “the statute reasonably allows for a case-specific approach, considering real-world conduct, rather than a categorical approach, and because Douglas’s conspiracy to commit a Hobbs Act robbery qualifies as a ‘crime of violence’.” Agreeing with the 2nd and 11th Circuits, the 1st held that because 924(c) “requires consideration of a contemporaneous offense rather than a prior conviction, this residual clause does not raise either the practical or the Sixth Amendment right-to-trial concerns that led the Supreme Court to adopt the categorical approach in Taylor v. United States [and] Descamps v. United States.”

United States v. Douglas, Case No. 18-1129 (1st Cir. Oct. 12, 2018)

– Thomas L. Root

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