Tag Archives: 924(c)

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

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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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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Another Circuit Sets Impossible Bar for Dimaya 924(c) Claims – Update for October 8, 2018

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CIRCUITS BUSY SHUTTING DOWN 924(C) DIMAYA CLAIMS

violence160110In the wake of Sessions v. Dimaya, a lot of people doing time for using or carrying 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 courts of appeals – the most recent one last week – are making that pretty hard. A third circuit may be on the way there.

Section 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, because what might or might not constitute a “substantial risk” was so vague that a reasonable person was unable to determine beforehand what the legal effect of conduct would be. For example, while murder certainly carried a substantial risk that physical force may be used against the victim, how about drunk driving (which, if it were the defendant’s fourth or tenth offense – depending on the state – might be a felony)?

Due to Johnson and Dimaya, all manner of offenses that may sound like they’re violent have been held not to be “crimes of violence.”

Irma Ovalles, convicted of being part of a carjacking crew that used baseball bats and assault rifles, filed a 2255 motion challenging her 924(c) conviction on the grounds that carjacking in its ordinarily sense is not a crime of violence. Last week, the 11th Circuit handed down a ruling that all but dooms her effort.

violent170315To determine whether a prior offense is a “crime of violence,” which is what Johnson and Dimaya address, a court is to use a “categorical approach,” which requires a reviewing court not to look at what the defendant actually did to, for example, assault a police officer in, say, Tennessee. Instead, the court is to ‘imagine’ an “idealized ordinary case of the crime,” and figure out whether it could be done without using violent physical force. Sure punching a cop would use violent physical force. But what if the defendant spit on the police officer instead? If Tennessee state law would permit prosecuting such an act, would that – disgusting though it might be – be held not to be “violent physical force?” If so, the predicate crime is not a “crime of violence.”

So assume the defendant were packing a gun hidden in her waistband while assaulting the officer? Or pulled the gun and pistol-whipped him? Would the fact that she reasonably been prosecuted for spitting on him instead mean that the crime was not violent, and thus render the 924(c) residual clause impermissibly vague?

categorical181008The 11th Circuit cleanly cut the “categorical approach” Gordian knot. “On the flip side,” the Court said, “Johnson and Dimaya also make clear… that if 924(c)(3)’s residual clause is instead interpreted to incorporate what we’ll call a conduct-based approach to the crime-of-violence determination, then the provision is not unconstitutionally vague.” Unlike the categorical approach, the conduct-based approach does not focus on legal definitions and “hypothetical ordinary case,” but instead looks at how the defendant actually committed the underlying crime. The 11th held that where the crime of violence being weighed is not a prior offense, but instead a contemporaneous one (and you cannot commit a 924(c) offense without simultaneously committing a crime of violence or drug trafficking offense), then the conduct-based approach had to be used under the rule of “constitutional doubt.” The rule of “constitutional doubt” holds that any reasonable construction available must be used in order to save a statute from unconstitutionality. “Accordingly,” the Circuit ruled, “we hold that 924(c)(3)(B) prescribes a conduct-based approach, pursuant to which the crime-of-violence determination should be made by reference to the actual facts and circumstances underlying a defendant’s offense.”

Under the conduct-based approach, Irma is clearly going to be in deep trouble when her case gets back to the district court. As one 11th Circuit judge asked in his concurring opinion, “How did we ever reach the point where this Court, sitting en banc, must debate whether a carjacking in which an assailant struck a 13-year-old girl in the mouth with a baseball bat and a cohort fired an AK-47 at her family is a crime of violence? It’s nuts.”

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The 4th Circuit just last month heard en banc arguments in United States v. Simms, which may go the same way as Barrett and Ovalles.

Ovalles v. United States, Case No. 17-10172 (11th Cir., Oct. 4, 2018)

United States v. Barrett, Case No. 14-2641 (2nd Cir., Sept. 10, 2018)

United States v. Simms, Case No. 15-4640 (4th Cir., decision pending)

– Thomas L. Root

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Two Circuits Split on Whether Conspiracy to Be Violent Is Itself Violent – Update for September 20, 2018

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TWO CIRCUITS SPLIT ON HOBBS ACT CONSPIRACY AS VIOLENT CRIME

Two more federal circuits last week joined the chorus of appellate courts holding that a Hobbs Act robbery supports a conviction under 18 USC 924(c) for using a gun during crimes of violence, but they split on whether a conspiracy to commit Hobbs Act robbery is itself violent.

violence180508The 2nd Circuit continues to hold that the conspiracy to commit a violent crime is also a violent crime. The 5th Circuit, however, ruled that a conspiracy to commit Hobbs Act robbery can only be violent under the 924(c) residual clause, and it held that the residual clause is unconstitutionally vague in light of last April’s Supreme Court decision in Sessions v. Dimaya.

The split may set up a Supreme Court decision on conspiracy as a violent crime down the road, but probably not in the 2018-2019 term, which starts in two weeks.

United State v. Barrett, Case No. 14-2641-cr (2nd Cir. Sept. 10, 2018)

United State v. Davis, Case No. 16-10330 (5th Cir. Sept. 7, 2018)

– Thomas L. Root

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What Will A Blended FIRST STEP Bill Contain? – Update for August 15, 2018

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WHAT WILL BE ADDED TO FIRST STEP IN THE WHITE HOUSE DEAL?

As we have reported, the Trump Administration is brokering a deal to amend the FIRST STEP Act to include some of the sentencing reform provisions of the Sentencing Reform and Corrections Act. The compromise, intended to appease SRCA co-sponsors Sen. Charles Grassley (R-Iowa) and Sen. Richard Durbin (D-Illinois), should clear the way for a Senate vote on FIRST STEP, and passage of some badly needed prison reform.

grassley180604Not everything in SRCA will get dropped into the Senate version of the FIRST STEP Act. Nevertheless, what is proposed is significant to a lot of people.

The SRCA additions to FIRST STEP will probably include:

• Reductions in some drug mandatory minimums, reducing penalty from life to 25 years for a third drug conviction, and from 20 to 15 years for a second drug conviction.

Sentencestack170404•   Ending 18 USC 924(c) “stacking” charges. This provision would prohibit the doubling up of mandatory sentences for carrying a gun during drug or violent crime offenses. The way 924(c) is written now, a defendant who carries a gun while selling pot three days in a row commits three separate 924(c) offenses. The first one carries a consecutive 5 years, and the second and third each carry a consecutive 25 years, meaning the defendant gets 55 years plus the pot sale guidelines. The change in the law makes clear that the increased penalty for a second or third 924(c) offense applies only after conviction for the first one.

• Increase “safety valve” application. This provision would give judges more discretion in giving less than the mandatory minimum for certain low-level crimes, including people with Criminal History II in the safety valve provisions of 18 USC 3553(f).

• Retroactivity for the 2010 Fair Sentencing Act. This provision would make the FSA, which changed sentencing guidelines to treat offenses involving crack and powder cocaine more equally, retroactive to people sentenced before the law went into effect.

"Just the facts, FAMM."
                          “Just the facts, FAMM.”

Last Friday, FAMM released an extended series of fact sheets reviewing which SRCA sentencing provisions are in play. The document, written as a memo to Congress members and staff, is entitled “Fact sheets explaining potential sentencing additions to FIRST STEP Act.” It explains in detail the provisions possibly being added to FIRST STEP, and describes cost savings and justice issues surrounding each.

Also last week, Marc Holden, general counsel to Koch Industries and point man for the Koch initiatives on criminal justice reform, wrote, “By supporting these smart-on-crime, soft-on-taxpayers reforms, President Trump is demonstrating exemplary leadership. If Congress is able to pass the FIRST STEP Act with these sentencing provisions included, it would give the president a lasting, landmark achievement on criminal justice reform that has eluded previous administrations.”

FAMM, Facts sheets explaining potential sentencing additions to FIRST STEP Act (Aug. 10, 2018)

Freedom Partners, President Trump is Leading on Criminal Justice Reform; Senate Should Send Him a Bill (Aug. 9, 2018)

– Thomas L. Root

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Tenth Circuit Firebombs 924(c) Residual Clause – Update for May 15, 2018

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10th CIRCUIT SAYS DIMAYA MEANS 924(c) RESIDUAL CLAUSE IS UNCONSTITUTIONAL

regrets180515Cliff Salas was convicted of conspiracy to commit arson under 18 USC 844 for using a Molotov cocktail to firebomb a tattoo parlor, which came with an add-on 30-year sentence for using a destructive device in a crime of violence.

Under 18 USC 924(c), a defendant who uses or possesses a firearm or destructive device in a drug trafficking offense or crime of violence receives a mandatory consecutive sentence of from five years to life, depending on the type of gun or device, on whether it’s a first 924(c) offense or subsequent offense, and on how the weapon was used. A “crime of violence” is defined as either (1)  an offense that has as an element the threatened use or actual use of physical force against a person or property; or (3) an offense that presents a significant risk of physical harm to people or property.

Because an 18 USC 844 arson conviction is too broad for generic arson, the enumerated clause of 18 USC 924(c) does not encompass Sec. 844 arson. Likewise, the elements clause, which requires use of force against the property of another, does not encompass Sec. 844 arson, because the property burned up may be one’s own. That meant that that arson must come under the 924(c) residual clause.

vaguenes160516Two weeks ago, the 10th Circuit hurled its own Molotov cocktail at the 924(c) residual clause, striking it as unconstitutional under the 5th Amendment. The Court concluded that the Supreme Court’s recent Dimaya decision required that the 924(c) residual clause be declared too vague. “Ultimately,” the Court said, “Sec. 924(c)(3)(B) possesses the same features as the ACCA’s residual clause and Sec. 16(b) that combine to produce ‘more unpredictability and arbitrariness than the Due Process Clause tolerates,’ and Dimaya’s reasoning for invalidating Sec. 16(b) applies equally to Sec. 924(c)(3)(B). Sec. 924(c)(3)(B) is likewise unconstitutionally vague.”

Currently, only the 6th Circuit holds that Sec. 16(b) is unconstitutional while 924(c)(3)(B) is not.

United States v. Salas, Case No. 16-2170 (10th Cir. May 4, 2018).

– Thomas L. Root

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1st Circuit Says Bank Robbery is Still Violent – Update for October 19, 2017

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VIVA LA DIFFERENCE

paperwork171019Since the Supreme Court ruled two years ago in Johnson v. United States that the “residual clause” of the Armed Career Criminal Act was unconstitutional, many forests have been felled to produce the paperwork blizzard that has buried federal courts in sentence challenges.

The ACCA requires that if a convicted felon caught with a gun has three prior convictions for crimes of violence or drug offenses, the sentence that must be imposed is no longer zero to 10 years, but rather 15 years to life. There are three ways a prior offense may be a “crime of violence” under the ACCA. The offense must be either

(1) an enumerated offense (burglary, arson, extortion or use of explosive”); or

(2) an offense that has as an element the threatened use or actual use of physical force against a person; or

(3) an offense that presents a significant risk of physical harm to others.

The first clause is called the “enumerated clause,” because it enumerates certain offenses that count, period. The second is called the “force clause” or “elements clause,” because it relates to crimes that include elements of purposeful force. The third is called the “residual clause,” because it sweeps up what’s left.

violence160110In Johnson, the Supreme Court said the residual clause was so vague that no one could figure out what it meant. For that reason, it was unconstitutional to use the residual clause to make someone liable under the ACCA. The problem was that the same (or very similar) language was used elsewhere in the same statute (18 USC 924) and the criminal code (such as in 18 USC 16(b)). One might think that Johnson invalidated the residual clause in those definitions, too. But one might be wrong…

Whether Johnson invalidates the residual clause in the 18 USC 16(b) “crime of violence” definition was argued a little over two weeks ago in the Supreme Court. That decision will issue before next summer. Meanwhile, battle continues to rage in the lower courts, leading to some rather surprising claims.

butch171019We confess here that we like bank robbery. It’s old fashioned – you know, Jesse James, Bonnie and Clyde, Willie Sutton – and an easy crime to understand. In a federal criminal world of meth labs, insider trading, trading in incorrectly-packeted lobster and throwing back undersized fish, bank robbery is a crime that’s pretty easy to understand. We suspect that someone like Virginia Governor Bob McDonnell never felt a frisson of illicit thrill when a political donor bought his wife an Oscar de la Renta dress, not the way Butch Cassidy was pumped when he knocked over the San Miguel Valley Bank. After all, when was the last time you saw a movie about the Feds trying to take down a CEO for selling tainted peanut butter?

Jeff Hunter was a bank robber, now doing 270 months for the offense. The last 60 months are a consecutive sentence for using a gun during a crime of violence. After Johnson, Jeff filed a post-conviction motion claiming that the extra 60 months was unwarranted, because while he had a gun, a bank robbery is no longer a crime of violence after Johnson.

knifegunB170404This might seem counter-intuitive to you. Of course a bank robbery is a crime of violence, you say. Just as you never should take a knife to a gunfight, you need never take a gun to a nonviolent crime. Who’s ever heard of an armed inside trader?

Last week, the 1st Circuit agreed that while Johnson may sweep broadly, it doesn’t sweep that broadly. No matter what the constitutional status of the residual clause might be, the Circuit said, Jeff’s offense remains a “crime of violence” because of the force clause. The 1st has already held that a bank robbery “has as an element the use, attempted use, or threatened use of physical force against the person of another” for purposes of the career offender guidelines (USSG 4B1.2(a)(1)), which use the same “crime of violence” definition as does the ACCA.

But the 924(c) definition varies slightly. All of the others refer to using physical force against another person. The 924(c) subsection definition refers “use of physical force against the person or property of another.”

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Aha! Jeff argued that there is a difference. The 1st agreed, but said that difference does not help him. “The addition of ‘or property’ renders § 924(c)(3)(A)’s scope greater than that of § 4B1.2(a)(1),” the court said. In other words, under the ACCA, if Butch Cassidy had robbed the Union Pacific Overland Flyer by threatening to shoot the engineer, that would have been a crime of violence. If he had robbed it by threatening to shoot the engineer’s dog, it would not have been. shootdog171019However, if he robbed the First National Bank of Winnemucca by threatening to shoot the branch manager’s dog (which was “property”), the offense would been just as much a “crime of violence” as if he had threatened to shoot the manager himself.

Ah, the beauty of the law! Because the statute says bank robbery is effected by “by force and violence, or by intimidation,” the 1st Circuit said, “we hold that federal bank robbery, and a fortiori federal armed bank robbery, are crimes of violence under the force clause of § 924(c)(3).”

Hunter v. United States, Case No. 16-2483 (1st Cir., October 16, 2017)

– Thomas L. Root

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Some Short Notes from D.C. – Update for August 7, 2017

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TWO INTERESTING D.C. CIRCUIT RULINGS END LAST WEEK

The D.C. Circuit handed down a pair of rulings last Friday. One, the reversal of sentences (and in one case, a conviction) for four Blackwater contractors over a 2007 Baghdad massacre, was widely reported. The other, a case about prisoners’ waivers of FOIA rights, flew under the radar. Both are of significance to federal inmates.

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D.C. CIRCUIT SAYS 924(C) SENTENCE IN BLACKWATER CASE VIOLATES 8TH AMENDMENT

carriefgun170807The big news from the D.C. Circuit last Friday was the reversal of sentences for four Blackwater private security contractors who massacred 14 civilians after they mistakenly thought they were under attack on a Baghdad street. Buried in that decision is a holding of interest to federal prisoners with 18 USC 924(c) convictions, especially where those counts are stacked to result in horrendous sentences.

The contractors were armed with government-issued M4 rifles, which of course can be set to fire fully automatically. Because of that, each of the defendants – found guilty of committing a crime of violence with a gun – got a mandatory sentence of 30 years because the weapon was a machine gun.

Apparently, hanging the 924(c) machinegun sentence on the defendants was contentious, even in the Justice Department. The D.C. Circuit agreed, ruling that applying the mandatory 30-year sentence to the contractors – based “solely on the type of weapons… used – violated the 8th Amendment’s prohibition against cruel and unusual punishment.

In its opinion, the Circuit tried mightily to limit the decision to the facts of the case: It notes the firearms were a type required by the government, the contractors all had prior unblemished military records and no other convictions, it was a war zone where snap judgment was the difference between life and death, the contractors did not choose to be on that street corner, but were ordered there by their commander, and they did not set out that day to blow away civilians. The Court also noted that when 924(c) was last amended, the concept of private contractors protecting U.S. diplomats was not envisioned.

overkill170807“Combining all of these considerations,” the appellate court said, “we conclude the mandatory 30-year sentences create the rare case that leads to an inference of gross disproportionality… None of the penological justifications our society relies upon when sentencing criminals — incapacitation, rehabilitation, retribution, or deterrence — are properly served here by a sentence whose length is determined solely based on the type of weapon used during the crime.”

The Blackwater case has a rare set of facts, and run-of-the-mill defendants – who, for example, use a submachine gun to rob a bank – are unlikely to get much love from the holding. However, now the 8th Amendment camel’s nose is inside the tent. It will be interesting to see whether 8th Amendment claims become a staple of 924(c) defense elsewhere in the country.

United States v. Slatten, Case No. 15-3078 (D.C.Cir., Aug. 4, 2017)

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D.C. CIRCUIT SAYS FOIA RIGHTS CANNOT BE WAIVED BY PLEA AGREEMENT

The government often demands, as a price for plea agreements, that defendants waive their right to pursue Freedom of Information Act requests.

Last Friday, the D.C. Circuit outlawed the practice, holding that the FOIA waiver is unconnected to any “legitimate criminal justice interest” and is void as a matter of public policy.

foia160930The Court said a “prosecutor is permitted to consider only legitimate criminal justice concerns in striking a plea bargain—concerns such as rehabilitation, allocation of criminal justice resources, the strength of the evidence against the defendant, and the extent of a defendant’s cooperation with the authorities… This set of legitimate interests places boundaries on the rights that can be bargained away in plea negotiations.”

While banning FOIA suits “may occasionally promote the government’s legitimate interest in finality,” the Circuit said, “they only do so by making it more difficult for criminal defendants to uncover exculpatory information or material showing that their counsel provided ineffective assistance. That argument takes the finality interest too far. After all, a defendant can never waive his right to bring a colorable claim of ineffective assistance of counsel, even though such claims undermine finality… FOIA plays a significant role in uncovering undisclosed Brady material and evidence of ineffective assistance of counsel, and in practice has led to uncovering records relevant to ineffective-assistance-of-counsel claims, such as plea offers not communicated by defense counsel to clients.”

Price v. Dept. of Justice Attorney Office, Case No. 15-5312 (D.C.Cir., Aug. 4, 2017)

– Thomas L. Root

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Live by the Sword, Die by the Sword – Update for April 4, 2017

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

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SUPREMES SAY COURT CAN CONSIDER MANDATORY GUN SENTENCE WHEN SENTENCING ON UNDERLYING CRIME

Outside of TV cop shows, no one likes drug dealers or violent criminals waving firearms around, which is probably why no crime this side of kiddie porn is easier to demagogue than laws that slam gun-toting criminals.

gun160718Take 18 USC 924(c), which sets penalties for criminals who use, carry or possess a gun “during and in relation to” a crime of violence or drug-trafficking offense. A defendant convicted of a 924(c) offense must get a mandatory sentence of at least 5 years (with increased penalties if the perp “brandished” it or fired it, and whopping increases if, for example, it was fully automatic). What’s even more impressive, the statute raises the mandatory minimum to 25 years for the second offense. Oh yeah, and all 924(c) penalties must be consecutive to any other sentence.

Watch how the math works: On Monday, Bart Badguy robs a convenience store with a .44 Klutzman stuck in his waistband, and makes off with a bag of Doritos. Realizing later that he has nothing to dip it in, he robs another convenience store the next day, the same revolver displayed under his belt, and grabs some French onion dip. The federal sentencing guidelines set him at 63-78 months for the two robberies, and the court sentences Bart at the bottom (understanding what hunger can do to a man).

doritos170404But Paula Prosecutor is a canny lawyer, and she thus had the foresight to get Bart indicted for two 924(c) counts along with the two robberies. The first 924(c) count adds 60 months to the 63 months the district court imposed for the robberies. The second 924(c) count – arising from Bart’s going back for the dip – adds 300 months to the robberies and the first 924(c) conviction. Total sentence: 403 months (35¼ years) for chips and dip.

No one would argue against punishing crimes of violence involving guns more harshly than other offenses. Shooting legend Elmer Keith is credited with observing that one should never bring a knife to a gunfight, and the sentiment – that people carrying guns are likely to use them – undergirds 924(c).

knifegunB170404But the statute is inflexible, and the government has had its fun with it as a result. While Congress probably meant that a second 924(c) conviction – carrying a 25-year mandatory minimum – had to follow a prior 924(c) conviction, prosecutors years ago sold the Supreme Court that the statute did not say there had to be an intervening conviction. In Deal v. United States, a 1994 decision, the Supreme Court held that a drug-addled bank robber who held up six banks in a 3-month period – carrying a gun for all of them – had to get a 105-year sentence.

Yesterday, the government – which had lived by the sword – died by the sword.

The Supreme Court unanimously reversed the 8th Circuit, holding that a sentencing court may consider the length of a mandatory consecutive sentence when setting the length of an underlying sentence.

In Dean v. United States, the defendant was charged with committing two robberies with a gun. The robberies carried a guidelines sentence of 84 to 105 months. One of the two 924(c) counts carried a mandatory 5 years, and the second carried a mandatory 25 years. Both sentences had to be consecutive to the underlying sentence and each other.

So Levon Dean got to sentencing knowing that he had a minimum 360 months coming. His lawyer argued that it was more than enough, and the judge hardly needed to pile on another 84 months for the underlying offense. While the district court, the judge said he was not allowed to adjust the sentence of the underlying robbery to zero to account for the two consecutive gun sentences. Levon got 400 months.

knifegun170404The 8th Circuit agreed with the government that the underlying offense had to be sentenced as though the 924(c) counts were not there, and then the consecutive sentences had to be stacked on like pancakes. Anything else, the Justice Department argued, would thwart the will of Congress.

How convenient for the government that the will of Congress becomes a crucial consideration in Dean, while it was utterly irrelevant 24 years ago in Deal! Yesterday, however, the Supreme Court found it not so convenient, holding that while adjusting the underlying offense guidelines to zero might negate the will of Congress, that did not matter. The plain text of the statute was clear, and the plain text governs:

The Government speaks of Congress’s intent to prevent district courts from bottoming out sentences for predicate 924(c) offenses whenever they think a mandatory minimum under 924(c) is already punishment enough. But no such intent finds expression in the language of 924(c). That language simply requires any mandatory minimum under 924(c) to be imposed “in addition to” the sentence for the predicate offense, and to run consecutively to that sentence. Nothing in those requirements prevents a sentencing court from considering a mandatory minimum under 924(c) when calculating an appropriate sentence for the predicate offense.

The government argued that Congress’s intent that the underlying offense be sentenced without regard to the 924(c) count could be inferred from the statute’s silence. But in another consecutive-sentencing statute for identity theft, Congress included specific language limiting the district court’s ability to adjust the underlying sentence.

Sentencestack170404The Supremes ruled that because “Congress has shown that it knows how to direct sentencing practices in express terms,” but did not in 924(c), a sentencing court may impose a sentence on the underlying offense of one day, in order to make the overall sentence consistent with what the court considers appropriate under 18 USC 3553 (the sentencing statute). The Court said, “we ordinarily resist reading words or elements into a statute that do not appear on its face.”

Dean will go back to court for resentencing, where he will receive 30 years and a day.

Dean v. United States, Case No. 15-9260 (Apr. 3, 2017)

– Thomas L. Root

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