Tag Archives: acquitted conduct

Guideline Amendments Adopted in Contentious USSG Love-fest – Update for April 6, 2023

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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.

SENTENCING COMMISSION ADOPTS AMENDMENTS

USSC170511The U.S. Sentencing Commission yesterday adopted proposed amendments to the Federal Sentencing Guidelines for the first time in five years, with the new “compassionate release” guidelines consuming much of the meeting and generating sharp (but collegial) disagreement.

The “compassionate release” Guideline, USSG § 1B1.13, was approved on a 4-3 vote. It updates and expands the criteria for what can qualify as “extraordinary and compelling reasons” to grant compassionate release – the language in 18 USC § 3582(c)(1)(A) – and it will give judges both more discretion and more guidance to determine when a sentence reduction is warranted.

The new categories that could make an inmate eligible for compassionate release include

• if the prisoner is suffering from a medical condition that requires long-term or specialized medical care not being provided by the BOP and without which he or she is at risk of serious deterioration in health or death.

• if the prisoner is housed at a prison affected or at imminent risk of being affected by (an ongoing outbreak of infectious disease or an ongoing public health emergency declared by the appropriate federal, state, or local authority, and due to personal health risk factors and custodial status, he or she is at increased risk of suffering “severe medical complications or death as a result of exposure” to the outbreak.

• if the prisoner’s parent is incapacitated and the prisoner would be the only available caregiver.

• if the prisoner establishes that similar family circumstances exist involving any other immediate family member or someone whose relationship with the prisoner is similar in kind to that of an immediate family member when the prisoner would be the only available caregiver.

• if the prisoner becomes the victim of sexual assault by a corrections officer.

• if a prisoner received an unusually long sentence and has served at least 10 years of the term of imprisonment, changes in the law (other than to the Guidelines) may be considered in determining whether an extraordinary and compelling reason exists, but only where such change would produce a gross disparity between the sentence being served and the sentence likely to be imposed at the time the motion is filed.

The amendments also provide that while rehabilitation is not, by itself, an extraordinary and compelling reason, it may be considered in combination with other circumstances.

compassion160208Three of the seven-member Commission disagreed sharply with the “unusually long sentence” amendment. Commissioner Candice C. Wong said, “Today’s amendment allows compassionate release to be the vehicle for applying retroactively the very reductions that Congress has said by statute should not apply retroactively.”

Commissioner Claira Boom Horn, who is a sitting US District Court Judge in Kentucky, observed that “nothing in the First Step Act – literally nothing, not text, not legislative history – indicates any intention on Congress’s part to expand the substantive criteria for granting compassionate release, much less to fundamentally change the nature of compassionate release to encompass for the first time factors other than the defendant’s personal or family circumstances. The Supreme Court tells us that Congress does not hide elephants in mouseholes and it did not do so here.”

Commissioner Claire McCusker Murray said, “The seismic expansion of compassionate release promulgated today not only saddles judges with the task of interpreting a free will catch-all but also ensures a flood of motions, a flood that will then repeat anytime there is a nonretroactive change in the law. For the past several years, while the Commission lacked a quorum to implement the First Step Act, the country has experienced a natural experiment in what happens when judges have no operative guidance as to the criteria they should apply in deciding release motions. The result has been widespread disparities. In Fiscal Year 2022, for example, the most generous circuit granted 35% of compassionate release motions, the most cautious granted only 2.5%. The disparities within circuits and even within courthouses were often just as stark. We fear that with today’s dramatic vague and ultimately unlawful expansion of compassionate release that we… will expect far more of the same.”

Commissioner John Gleeson, a retired US District Court judge and Wall Street law firm partner, disagreed: “[The amendment’s] common sense guidance is fully consistent with separation of powers principles, our authority as the Sentencing Commission, and with the First Step Act. Most importantly, it will ensure that § 3582(c)(1)(A) of Title 18 of the United States Code serves one of the purposes Congress explicitly intended it to serve when that law is enacted almost 40 years ago: to provide a needed transparent judicial second look at unusually long sentences that in fairness should be reduced.”

noteasycongress221212Congress may veto one or more of the Guidelines proposals between now and November 1, 2023. That has only once before, when Congress voted down a guideline lessening the crack/cocaine disparity in 2005. Congress is pretty busy, and both the Senate and House are pretty evenly split politically, but the extent of the disagreement at the Commission gives cause for concern. If Congress does veto, it is unclear whether would focus solely on the “unusually long sentence” subsection of new § 1B1.13, or whether the entire amended Guideline would be jettisoned.

In other action, the Commission had been considering an amendment that prohibited courts from imposing longer sentences based on alleged crimes of which a defendant had been acquitted. Commission Chairman Carleton Reeves, a federal district judge from the Southern District of Mississippi, said the Commission needs more time before making a final determination on the issue.

Reuters reported that Michael P. Heiskell, President-Elect of the National Association of Criminal Defense Lawyers, said he was disappointed by the delay. “Permitting people to be sentenced based on conduct for which a jury has acquitted them is fundamentally unfair because it eviscerates the constitutional right to trial and disrespects the jury’s role,” he said in a statement.

However, the Commission’s delay may rejuvenate the McClinton v. United States petition for certiorari, which the Supreme Court has been sitting on at the suggestion of the Dept of Justice, awaiting Sentencing Commission action on acquitted conduct. A Supreme Court decision that use of acquitted conduct in sentencing is unconstitutional would benefit many more people than would a prospective Guidelines change.

The USSC also adopted a criminal history amendment that eliminates “status points” (sometimes called “recency points”) – additional criminal history points assessed if the defendant committed the current crime within two years of release for a prior crime – and grants a 2-level downward adjustment to a defendant’s offense level if he or she had zero criminal history points and met other criteria.

The Commission also approved an amendment to criminal history commentary advising judges to treat prior marijuana possession offenses more leniently in the criminal history calculus, making downward adjustments for offenses now seen as lawful by many states.

The proposal doesn’t seek to remove marijuana convictions as a criminal history factor entirely, but it would revise commentary within the guidelines to “include sentences resulting from possession of marihuana offenses as an example of when a downward departure from the defendant’s criminal history may be warranted,” according to a synopsis.

usscretro230406None of the Guidelines changes is retroactive without specific Commission determination that they should be. The USSC yesterday issued a notice that it will consider, pursuant to 18 USC § 3582(c)(2) and 28 USC § 994(u), whether Guidelines changes on “status points” and the “zero criminal history points” adjustment should be retroactive, and ask for public comment on the matter.

Although the Guidelines amendments do not become effective until November, most federal circuits have declared that – while the current § 1B1.13 is not binding on district courts because it is pre-First Step – courts should consider it to express the opinion of an agency expert in sentencing. The amended § 1B1.13 has every bit of the authority that the current non-binding § 1B1.13 has, and it has the additional benefit of being evidence of current Sentencing Commission thought.

USSC, Adopted Amendments (Effective November 1, 2023) (April 5, 2023)

USSC, Issue For Comment On Retroactivity Of Criminal History Amendment (April 5, 2023)

Reuters, U.S. panel votes to expand compassionate release for prisoners (April 5, 2023)

Marijuana Moment, Federal Sentencing Commission Approves New Marijuana Guidelines For Judges To Treat Past Convictions More Leniently (April 5, 2023)

– Thomas L. Root

DOJ Called Out On Two-Faced Acquitted Conduct Position – Update for March 13, 2023

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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.

DOJ SPEAKS WITH FORKED TONGUE

In late January, the Department of Justice got the Supreme Court to place a hold on four petitions for certiorari that, if granted, would have the Court decide whether acquitted conduct can be used in sentencing. DOJ pulled this off by promising SCOTUS that the proposed Guidelines amendments were going to fix the problem.

Then, DOJ showed up at the Sentencing Commission to tell it that it lacked the power to make the acquitted conduct change. Last week, the Supreme Court petitioner cried foul.

Acquitted conduct sentencing is a district court’s use of conduct a jury had acquitted a defendant of in setting Guidelines and deciding whether to depart from those Guidelines in sentencing a defendant.

Real-life example: Last week, the 7th Circuit upheld Phillip Robinson’s sentence. Phil was charged with a drug distribution conspiracy and an 18 USC § 924(c) for using a gun during a drug transaction. The jury convicted him of the drug conspiracy but acquitted him on the § 924(c). At sentencing, the district court pumped up Phil’s Guidelines for possessing a gun “in connection with the cocaine conspiracy.” The Circuit said that under the Supreme Court’s 1997 United States v. Watts decision, using the acquitted conduct to enhance Phil’s sentence is fine.

The petitions in front of SCOTUS, led by McClinton v United States, argue that sentencing defendants based on conduct a jury acquitted them of violates the 6th Amendment. The Supremes have relisted McClinton multiple times (“relisting” meaning the justices have considered the petitions at their weekly conference and then deferred a decision to the next conference, a “relist” meaning that the petition have substantial support).

On January 12th, the Sentencing Commission rolled out its draft proposed Guidelines amendments for public comment. One of them would ban the use of acquitted conduct in setting Guidelines levels. If adopted, the change would mean that Phil’s Guidelines would be set based only on the coke conspiracy without reference to the gun.

nothingtosee230313In response, DOJ told the Supreme Court that “[t]his Court’s intervention” was not “necessary to address” the widespread problem of acquitted-conduct sentencing because “the Sentencing Commission could promulgate guidelines to preclude such reliance.”

A few weeks later, DOJ told the Sentencing Commission that it could not amend the Guidelines to curtail the use of acquitted conduct at federal sentencing. DOJ argued that USSC lacked the power to adopt the amendment. The proposal “would be a significant departure from long-standing sentencing practice” because the Supreme Court “has continued to affirm [in Watts] that there are no limitations on the information concerning a defendant’s background, character, and conduct that courts may consider in determining an appropriate sentence.”

McClinton has fired back that DOJ’s “expansive reading of Watts” in front of the Sentencing Commission “is deeply at odds with the far more limited understanding the government has presented to this Court… And contrary to its assurances to this Court, DOJ now contends that the Sentencing Commission lacks authority to promulgate amendments addressing the practice.”

two-faced230313Reuters said last week that DOJ’s position on this issue “does not square with agency leadership and President Joe Biden’s forceful commitments to addressing racism in the justice system and reducing mass incarceration.”

True, but what is more notable is that DOJ can tell the Supreme Court to deny McClinton review because the USSC is going to fix the acquitted conduct problem while at the same time telling USSC that it is not allowed to fix the problem. The government has prosecuted people for less duplicity than that.

Letter of DOJ to Supreme Court, Case No 21-1557, January 18, 2023)

United States v. Robinson, Case No 22-1472, 2023 USAppLEXIS 5625 (7th Cir, March 9, 2023)

Supplemental Brief of Dayonta McClinton, Case No 21-1557 (Supreme Ct, March 7, 2023)

United States v. Watts, 519 US 148 (1997)

Reuters, U.S. Justice Dept takes a hard line on sentencing reform (March 7, 2023)

Sentencing Law and Policy, DOJ testimony to Sentencing Commission on acquitted conduct sentencing generates notable responses (March 8, 2023)

– Thomas L. Root

Did DOJ Sandbag McClinton Cert Petition? – Update for February 21, 2023

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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.

A COUPLE OF SCOTUS RELISTS COME UP TODAY

relist230221Last week, I reported that the Supreme Court would again take up McClinton v. United States – a case on using acquitted conduct at sentencing – at last Friday’s conference. We won’t know the conference’s outcome until today at 9:30 am EST, but last week, SCOTUSblog.com had an interesting spin on the repeated McClinton relistings.

John Elwood, one of Dayonta McClinton’s lawyers and a regular SCOTUSblog contributor, wrote that McClinton and four other cases raising the same issue “are just sitting there on the court’s docket… [A]s near as we can tell, the court appears to be holding those cases to see whether the US Sentencing Commission acts on a pending proposal to place restrictions on federal courts’ consideration of acquitted conduct at sentencing.”

How come? It seems the Solicitor General wrote to the Court in January, alerting it to the Commission’s acquitted conduct proposal and implying that the Guidelines change would solve the problem, making the grant of McClinton’s constitutional challenge to acquitted conduct superfluous.

inaction230221Dayonta McClinton has argued that the USSC proposal is “woefully inadequate to resolve the issue, but it still may explain the court’s inaction,” Elwood wrote. “Things may become clearer down the road.”

Another new relist, Davis v. United States, raises a fascinating 28 USC § 2255 question: Quartavious Davis got 159 years for a string of armed Hobbs Act robberies. His two co-defendants signed plea deals and got about a tenth of that time. Quart argues his attorney was ineffective by not negotiating the same kind of plea agreement with the government. His district court denied the post-conviction petition, holding that Quart could not prove that he would have gotten a plea deal if his lawyer had advocated for one.

Quart contends it should be enough to show that similarly-situated co-defendants got plea deals, which – he argues – suggests there is no reason the government would not have given him the same benefit. The 11th Circuit disagreed, holding that he could not show prejudice absent making some showing that the government had offered him a plea deal.

catch22-230221The petition raises the Catch-22 that informs a lot of § 2255 post-conviction arguments. Under the case that shaped modern federal habeas corpus claims directed at the constitutionality of federal convictions and sentences – Strickland v. Washington – in order to make a prima facie showing that a movant is entitled to a hearing, the prisoner has to show his or her lawyer goofed, and that but for the goof, there is a reasonable probability that the goof affected the outcome.

Here, Quart has argued that probability favors his claim that the government would have made a plea offer: after all, his two co-defendants – whose culpability was little different than his own – got plea deals. Unsurprising, inasmuch as 94% of federal prosecutions end in plea deals. But the government argues that he could not prove that the government would have made an offer, so he should be denied the very hearing that he needs to prove the government would have made an offer.

Catch-22. To be entitled to a hearing that could prove an element of his claim, the movant must prove the element.

We’ll see whether the Supreme Court is interested in a case that could sharpen the definition of “reasonable probability” as used in Strickland.

McClinton v. United States, Case No. 21-1557 (certiorari filed March 15, 2022)

Davis v. United States, Case No. 22-5364 (certiorari filed August 8, 2022)

Strickland v. Washington, 466 U.S. 668 (1984)

SCOTUSblog.com, Plea bargaining and a high-profile separation-of-powers case (February 15, 2023)

JDSupra, Sentencing Guidelines Amendment Would Preclude Acquitted Conduct from Being Used at Sentencing (January 30, 2023)

– Thomas L. Root

McClinton Redux at Supreme Court – Update for February 17, 2023

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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.

IS TODAY THE DAY FOR ACQUITTED CONDUCT REVIEW?

relist230123At its last Friday morning conference on January 21st, the Supreme Court Justices against “relisted” McClinton v. United States rather than decided to review the 7th Circuit decision. The Justices take another whack at it today at the high court’s first certiorari conference in four weeks.

McClinton raises the issue of whether a court can take into account conduct of which a defendant is acquitted by a jury when it sentences the defendant. The Guidelines permit it, although one of the draft amendments proposed a month ago, a change to USSG § 1B1.3 (relevant conduct), proposes to add a provision that holds “related conduct” not to include acquitted conduct.

hammertime200818The McClinton case would go beyond a Guidelines amendment, however, and expressly find the practice of relying on acquitted conduct to be a violation of the 6th Amendment’s requirement that juries, not judges, find facts.  In McClinton, the defendant was hammered at sentencing for a bank robbery in which a death occurred, despite being found not guilty of murder.  His sentence was upheld by a 7th Circuit panel that felt itself bound by the 1997 Supreme Court decision in United States v. Watts.

Even so, in his majority opinion 7th Circuit Judge Frank Easterbrook, a prominent conservative jurist, all but begged the Supreme Court to take up McClinton’s case. “Despite th[e] clear precedent [of Watts], McClinton’s contention is not frivolous,” he wrote for the three-judge panel. “It preserves for Supreme Court review an argument that has garnered increasing support among many circuit court judges and Supreme Court justices, who in dissenting and concurring opinions, have questioned the fairness and constitutionality of allowing courts to factor acquitted conduct into sentencing calculations.”

foodfight230217The fact that McClinton and four similar cases have been relisted by the Supreme Court four times suggests that there is sentiment among some Justices to take up the issue and strident opposition from others to leave Watts alone.

Any petition for certiorari granted from this point through June will be argued next term, beginning in October 2023.

New Republic, When You’re Sentenced for a Crime That Even a Jury Agrees You Didn’t Commit (February 1, 2023)

Sentencing Guidelines for United States Courts, 88 FR 7180, (February 2, 2023)

United States v. McClinton, 23 F.4th 732 (7th Cir. 2022)

McClinton v. United States, Case 21-1557 (petition for certiorari pending)

– Thomas L. Root

Will SCOTUS Grant Review to Acquitted Conduct Today? – Update for January 23, 2023

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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.

ACQUITTED CONDUCT STILL HANGING FIRE

Three weeks ago, I wrote that the Supreme Court would be deciding whether to finally take the question of whether a district court should be able to factor conduct for which a defendant was acquitted into a sentence, sort of “the jury didn’t think you did it, but I know better” approach to sentencing.

relist230123It turns out that SCOTUS now has five petitions for review before it raising the acquitted conduct issue. The principal case, McClinton v. United States, was “relisted” at the Justices’ Friday, January 6, 2023, conference for the following week’s Friday conference. On January 13, the Justices relisted the issue again for the January 20, 2023, conference. The Court will announce actions taken at the January 20th conference this morning at 9:30 Eastern time.

A “relist” occurs when the justices neither accept nor deny a petition for certiorari, but instead defer it for the next conference.

SCOTUSBlog explains that

it is almost impossible to know exactly what is happening when a particular case is relisted… One justice could be trying to pick up a fourth vote to grant review, one or more justices may want to look more closely at the case, a justice could be writing an opinion about the court’s decision to deny review, or the court could be writing an opinion to summarily reverse… the decision below.

Generally, the Supreme Court does not accept a case for review until it has been “relisted” one or more times.

Writing in his Sentencing Law and Policy blog, Ohio State University law professor Doug Berman said last week, “More often than not, relisting is a precursor to a later denial of cert, perhaps with a dissent or separate statement being authored by one or more Justices giving their take on the Court’s decision not to grant review. But relisting is also sometimes a precursor to a later granting of cert. So, as I have said before, I am hopeful, though still more than a bit pessimistic, about the possibility of 2023 being the year for SCOTUS to take up acquitted conduct sentencing.”

SCOTUSBlog, Acquitted-conduct sentencing and “offended observer” standing (January 19, 2023)

McClinton v. United States, Case No. 21-1557 (petition for certiorari pending)

Sentencing Law and Policy, US Supreme Court relists latest cases seeking review of acquitted conduct sentencing (January 17, 2023)

– Thomas L. Root

New Day Dawning for Compassionate Release? – Update for January 17, 2023

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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.

SENTENCING COMMISSION ISSUES DRAFT COMPASSIONATE RELEASE AMENDMENTS

USSCvanwinkle230117For the first time in five years, the U.S. Sentencing Commission last week issued draft Guidelines amendments that – after public comment and a 6-month Congressional review period – will become effective in November.

The USSC’s draft amendments cover everything from the drug safety valve to extra points off for defendants with a zero criminal history score to tougher guideline numbers for gun straw purchasers. But these draft changes are of lesser interest to prisoners because nothing the Commission changes in the guidelines is retroactive unless the USSC goes through a separate amendment process to make it so.

The last time that happened was the “drug-minus-two” change in 2014. Whether any of the sentencing changes the USSC issued in draft form last week will ever make the retroactivity cut is not yet clear.

The compassionate release policy statement that the USSC rolled out, however, will have applicability for people already serving a sentence. The Guidelines applied at sentencing have been advisory for the past 18 years, but the Commission’s compassionate release policy, USSG § 1B1.13, is not: under 18 USC § 3582(c)(1)(A) – the  “compassionate release” provision of the sentencing statute – a district court must ensure any sentence reduction decision “is consistent with applicable policy statements issued by the Sentencing Commission.”
compassionlimit230117The existing compassionate release policy was written before the First Step Act passed, for an era in which only the Bureau of Prisons could bring a compassionate release motion on behalf of an inmate. Since First Step passed, most (but not all) circuit courts have ruled that § 1B1.13 is not binding because it had not been amended to include First Step changes. While that freed district courts to grant compassionate release in circumstances other than the few listed in the old § 1B1.13, it wasn’t all good.

“Commission data have indicated that in recent years — over the COVID-19 pandemic and without a Commission quorum — the district courts have granted compassionate release at varying rates,” US District Court Judge Carlton W. Reeves, Commission chairman, said at last week’s USSC meeting. “It is my sincere hope that our work… brings greater clarity to the federal courts and more uniform application of compassionate release across the country.”

According to the USSC, people in Oregon had a 62% chance of getting a compassionate release grant. People in the Middle District of Georgia had a 1.5% chance. Giving federal judges the freedom to define for themselves what justifies a sentence reduction is a great thing when it frees the jurists from unreasonably strict limitations. It’s not so great when defendants with similar histories and offenses are treated dramatically differently due to an accident of geography.

The draft § 1B1.13 amendments propose additions to circumstances justifying compassionate release that include “medical conditions that require long-term or specialized medical care, without which the defendant is at risk of serious deterioration in health or death, that are not being provided in a timely or adequate manner; risk of being affected by a disease outbreak in prison for which the defendant is at increased risk of suffering severe medical complications or death; the incapacitation of the defendant’s parent when the defendant would be the only available caregiver; the defendant has been the victim of sexual assault or physical committed by a BOP employee or contractor; or “the defendant is serving a sentence that is inequitable in light of changes in the law.”

compassion160208The proposal also suggests a “catch-all” provision that “the defendant presents an extraordinary and compelling reason other than, or in combination with” the other circumstances the Commission has proposed for the beefed-up  § 1B1.13. 

The USSC draft proposals also include a provision to amend § 1B1.3 the “relevant conduct’ provision that tends to run up sentencing ranges, “to add a new subsection (c) providing that acquitted conduct shall not be considered relevant conduct for purposes of determining the guideline range unless the conduct was admitted by the defendant during a guilty plea colloquy or was found by the trier of fact beyond a reasonable doubt to establish, in whole or in part, the instant offense of conviction.” As noted, no one at this point knows whether this might become retroactive in the future.

Reuters, U.S. panel proposes limiting sentencing of defendants for acquitted conduct (January 12, 2023)

USSC, US Sentencing Commission Seeks Comment on Proposed Revisions to Compassionate Release, Increase in Firearms Penalties (January 12, 2023)

USSC, Proposed Amendments to the Sentencing Guidelines (Preliminary) (January 12, 2023)

Sentencing Law and Policy, US Sentencing Commissions publishes proposed guideline amendments and issues for comment (January 12, 2023)

– Thomas L. Root

Will Sentencing Based on Acquitted Conduct Get Supreme Court Review – Update for January 6, 2023

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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.

PUSH TO GET SCOTUS TO TAKE ‘ACQUITTED CONDUCT’ MAY BEAR FRUIT

A probable Supreme Court decision today on granting review to McClinton v. United States is gaining media notice.

McClinton examines sentencing for acquitted conduct, a judicial phenomenon described by the Associated Press as giving defendants “additional prison time for crimes that juries found they didn’t commit.”

Sentencing a defendant for what’s called “acquitted conduct” has gone on for years, based on United States v. Watts, a 1997 Supreme Court decision. There, a divided Court in a summary disposition held that use of acquitted conduct at sentencing does not offend the 5th Amendment Double Jeopardy Clause.

acquitted230106Maybe not. “But lower courts,” petitioner McClinton complains in his request for SCOTUS review, “have long misinterpreted Watts to foreclose all constitutional challenges to the use of acquitted conduct at sentencing, including under the 5th Amendment’s Due Process Clause and the 6th Amendment’s right to trial by jury.”

Since Watts, the high court has rejected several petitions asking for review of the question of whether using acquitted conduct at sentencing is unconstitutional. Nine years ago, Justice Scalia – joined by Justices Thomas and Ginsburg – highlighted the need for the Supreme Court “to put an end to the unbroken string of cases disregarding the Sixth Amendment” by enhancing sentences based on acquitted conduct, proclaiming in a dissent to the denial of review in another case. Scalia bluntly wrote, “This has gone on long enough.”

Scalia and Ginsburg have since died, but two other justices, Gorsuch and Kavanaugh, voiced concerns about using acquitted conduct at sentencing while serving as appeals court judges. “Allowing judges to rely on acquitted or uncharged conduct to impose higher sentences than they otherwise would impose seems a dubious infringement of the rights to due process and to a jury trial,” Kavanaugh wrote in United States v. Bell, a 2015 D.C. Circuit case.

scotus161130With the addition of Justice Ketanji Jackson, a former public defender (who also served on the Sentencing Commission), to the Supreme Court, there now could be the 4th vote needed to take up the issue, according to Ohio State law professor Doug Berman, a sentencing law expert and author of one of the four briefs on file support McClinton’s bid for SCOTUS review.

The Senate Judiciary Committee approved the Prohibiting Punishment of Acquitted Conduct Act of 2021 (S.601) in June 2021, which would have stopped the use of such conduct in federal sentencing. The bill never was voted on by the full Senate, however, and died last Tuesday when the 117th Congress expired.

The McClinton petition for certiorari has some horsepower behind it, having collected six amicus briefs supporting review, including one from 17 retired federal judges who say that based on their combined 300 years “experience as Article III judges… [we] emphasize the unfairness of the sentence in this case. [McClinton’s] district court relied upon acquitted conduct to essentially quadruple the defendant’s sentencing range, and its decision reflects a more widespread problem in the criminal justice system.”

The Supreme Court will announce decisions made in today’s conference on Monday.

AP, Supreme Court asked to bar punishment for acquitted conduct (December 28, 2022)

McClinton v. United States, Case No. 21-1557 (petition for certiorari, filed June 10, 2022)

United States v. Bell, 808 F.3d 926 (D.C. Cir., 2015)

Jones v United States, 135 S.Ct. 8 (2014) (dissent from denial of certiorari)

S.601, Prohibiting Punishment of Acquitted Conduct Act of 2021 (117th Congress)

Sentencing Law and Policy, Fingers crossed that SCOTUS might review acquitted conduct sentencing enhancements (December 28, 2022)

– Thomas L. Root

Acquitted Conduct No Panacea for Current Prisoners – Update for April 14, 2022

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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.

ACQUITTED CONDUCT AND THE HOPEMONGERS

The House of Representatives’ passage of the Prohibiting Punishment of Acquitted Conduct Act of 2021 (H.R. 1621) ten days ago appears to be chum on the water for some hope-mongering sharks who prey on inmates.

shark170607I already have heard from one person who is busy hiring an outside “research” service to evaluate his case to tell him whether he’ll benefit from the Prohibiting Punishment of Acquitted Conduct Act. For everyone’s benefit, here are two things to keep in mind.

First, the Act has not passed the Senate. It may. It may not. It may pass, but with different text, and then a conference committee will have to work out compromise text.

Second, the Act will apply to very few cases. It does not necessarily apply to relevant conduct. It does not apply to conduct not mentioned to a jury. If you did not have a jury trial, it does not apply (unless you were acquitted of the same conduct in a prior federal or state trial).

Finally, it is very unlikely that the Act will be retroactively applied to people already sentenced. The bill does not specify that it applies retroactively. Such bills are usually presumed not to be retroactive. Read 1 USC § 109 and Dorsey v. United States before you decide the courts will open their doors to post-conviction motions seeking resentencing because Prohibiting Punishment of Acquitted Conduct Act passes.

No reputable legal services company will take any money now to tell you whether you can get any sentencing benefit from the Prohibiting Punishment of Acquitted Conduct Act. It’s just too premature.

Prohibiting Punishment of Acquitted Conduct Act of 2021 (HR 1621)

Dorsey v. United States, 567 US 260 (Supreme Ct., 2012)

SPEAKING OF PREMATURE…

George Fower was sentenced to 24 months, but before he self-surrendered to the Bureau of Prisons, he sought compassionate release under 18 USC § 3582(c)(1)(A)(i) on the grounds he was very susceptible to COVID. Because he was not yet in prison, George found the statute’s administrative exhaustion requirement challenging, but he wrote to the warden of the prison to which he was to surrender in a month’s time, and later to the BOP’s Designation and Sentence Computation Center, the Regional Director and the Bureau of Prisons General Counsel.

Thirty days later (while still not in custody), George filed his compassionate release motion. The district court denied it, holding in part that “compassionate relief is not available to a defendant not in custody.”

Last week, the 9th Circuit agreed. It noted that the First Step Act amended the compassionate release statute only to allow the prisoner, rather than requiring BOP, to file the motion. At no time in the history of the “matrix of statutory and other enactments,” the Circuit said, were the BOP’s powers ever extended to grant it jurisdiction over those who had yet to commence their incarceration.

compassion160208It makes sense that the BOP has no place to play in compassionate release prior to a prisoner’s incarceration, the 9th noted. “The statute states that the defendant’s request must be addressed to ‘the warden of defendant’s facility,’ which cannot be known until there has been a designation by the BOP. This is further evidence that the statute contemplates that the defendant must be in a BOP facility before qualifying for compassionate relief.”

The 9th suggests that before a defendant self-surrenders, he or she may ask the district court to delay sentencing or to extend the surrender date.

United States v. Fower, Case No 21-50007, 2022 U.S. App. LEXIS 8919 (9th Cir., April 4, 2022)

– Thomas L. Root

Senate Judiciary Committee: A Win, A Tie and A Rain Delay – Update for May 28, 2021

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AN ONLY PARTLY SATISFYING DAY AT THE JUDICIARY COMMITTEE

The Senate Judiciary Committee considered three criminal justice reform bills yesterday, with results that were a little heartening, a little disheartening.
heartening210528The Committee approved the COVID-19 Safer Detention Act, S.312, 14-8. The bill now goes to the full Senate. The vote came despite the strenuous objections of Sen. Tom Cotton (R-Arkansas), who claimed that the bill would let dangerous criminals out on the street to violently accost fair maidens (or that’s how he sounded). Cotton didn’t cotton to approving something with “COVID-19” in the title, when BOP Director Michael Carvajal assured the Committee last month that by May 15th, every BOP inmate that wanted the vaccine would have received it.

That the BOP did not meet its deadline two weeks ago had little meaning. In fact, at 23 facilities – including some camps – fewer than 300 inmates had gotten the vaccine as of May 14. FPC Alderson, according to BOP records, had only 57 inmates vaccinated. While it’s possible that fewer than 10% of Alderson’s 622 inmates (all female) agreed to take the vaccine, but that’s pretty unlikely.

cotton171226Cotton tried to amend the bill so that it would apply only to inmates who had not been vaccinated for medical reasons approved by the BOP. That amendment failed.

An amendment that was approved, however, struck the bill’s proposed age reduction from 60 to 50. As amended, an elderly offender still must be 60, but he or she need only serve two-thirds of the statutory sentence (the total sentence minus good conduct time). It also adds judicial review for denial of elderly offender home detention, cuts the period for administrative exhaustion for compassionate release. Finally, during the pandemic, any defendant considered to be at a higher risk for severe illness from COVID–19, including because the defendant is 60 years of age or older or has an underlying medical condition, would by definition “an extraordinary and compelling reason” under 18 USC 3582(c)(1)(A)(i) for compassionate release.

Committee Chair Sen. Richard Durbin, D-Ill., who sponsored the proposed legislation, told the committee before the bill’s passage that the pandemic has shown that the BOP can’t be trusted to identify and release prisoners who are vulnerable to the coronavirus.

fail200526“The Bureau of Prisons failed,” Durbin said, noting that nearly 31,000 inmates requested compassionate release during the pandemic and the Bureau of Prisons approved only 36, fewer requests than it approved in 2019, before the pandemic. Durbin said that 35 federal inmates died while waiting for the BOP to rule on their requests.

The Committee began debating the Prohibiting Punishment of Acquitted Conduct Act of 2021 (S. 601). That bill would prohibit judges from considering conduct underlying an acquitted count in sentencing. Predictably, Cotton opposed that as well, but concerns were also expressed by Sen. John Cornyn (R-Texas) and Sheldon Whitehouse (D-Rhode Island).

Cornyn said that judges should be allowed to consider acquitted offenses in some cases, giving the example of a sexual offender who has repeatedly abused a victim and has some charges dropped because they are based on abuse that happened too long ago to be prosecuted. He apparently did not distinguish between dropped charges and charges a jury refused to convict on.

“There are circumstances that would endure to the benefit of a guilty criminal defendant and violate the rights of crime victims to be heard as provided by law,” Cornyn said.

Whitehouse, a former prosecutor, argued that judges should not have their hands tied at sentencing because some technical reason prevented conviction for conduct that clearly occurred. Sen. Amy Klobuchar (D-Minnesota), another former prosecutor, supported the measure.

Durbin decided to hold further consideration on S.601 to incorporate amendments.

disheartening210528The Committee adjourned for a Senate roll-call vote, and thus did not start discussing the First Step Implementation Act of 2021 (S. 1014), the star of the day’s hearing. This is the most consequential of pending bills, one which would grant judges the option to apply the 18 USC 3553(f) safety valve to a larger number of drug offenders and – most significant – make the reductions in mandatory minimums for drug and gun offenses granted in § 401 and 403 of the First Step Act retroactive.

The Committee should be taking up the First Step Implementation Act of 2021 soon. That is heartening.

Senate Committee on the Judiciary, Executive Business Meeting (May 27)

– Thomas L. Root

Last Week in Washington… – Update for March 11, 2021

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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.

ODD COUPLE STRIKE AGAIN; CALL TO REPEAL AEDPA

oddcouple210219A few weeks ago, Senators Richard Durbin (D-Illinois) and Charles Grassley (R-Iowa), the top two guys on the Senate Judiciary Committee, teamed up to introduce the COVID-19 Safer Detention Act (S.312), which would make grant of compassionate release for COVID-related reasons easier and relax the Elderly Offender Program age and sentence limits. Last week, the odd couple was at it again, introducing the Prohibiting Punishment of Acquitted Conduct Act (S.601).

The Act, a similar version of which was introduced last year but died without a vote, would prohibit federal courts from using conduct for which a defendant was acquitted as factors to pump up Guidelines scores.  

nuns170427The problem is this: Donnie Dopehead is charged with two drug counts, one for distributing 100 kilos of marijuana and the other for selling 15 grams of cocaine. The Feds have Donnie dead to rights on the coke: as he sold it to his customers, a busload of nuns was stopped at the light, and they all saw it happen. But the marijuana beef is based on the vague testimony of a demented neighbor with poor eyesight, who – on the witness stand – admits it may have been bales of hay, not marijuana, and the guy unloading it may have been Clarence Crackfiend, not Donnie.

The jury acquits Donnie of the pot, but convicts on the coke.

If Donnie had no prior criminal record, his sentencing range for the cocaine of which he was convicted would be 10-16 months. But at sentencing, the court will also consider the marijuana, if it finds by a preponderance of the evidence that Donnie dealt it. In sentencing law, “preponderance” seems to mean that the prosecutor said it, and that’s good enough for the judge.  With the pot added in, Donnie’s Guideline sentencing range is 51-63 months.

hammer160509The thinking (and I employ that term loosely) is that just because the jury said the government hadn’t proved the pot charge beyond a reasonable doubt didn’t mean that it hadn’t been proved by a preponderance of the evidence. And the lower evidentiary standard, coupled with the loosey-goosey procedural protections of a sentencing proceeding, means that the defendant has little of avoiding a five-year sentence for what should be more like 12 months.

The Prohibiting Punishment of Acquitted Conduct Act, simply enough, would have said in Donnie’s case that the court could sentence on the cocaine, but not the pot.

An identical bill, backed by a long list of conservative and liberal advocacy groups, is being introduced in the House by Reps Steve Cohen (D-Tennessee) and Kelly Armstrong (R-North Dakota).

You may reasonably suspect that this bill, along with the Safer Detention Act and other measures may be rolled together in a larger criminal justice package later this year.

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Meanwhile, a Washington Post article last week kicked off a series on the horror that is the Anti-Terrorism and Effective Death Penalty Act (AEDPA). Back in 1996, Congress took a chisel to habeas corpus, adopting procedural limitations that make arguing the merits of 2254 and 2255 motions – especially second ones – a byzantine nightmare, a “thicket of real through-the-looking-glass shit,” according to one long-time defense attorney.

The Post series will “look at how the AEDPA was passed, how it works in the real world, the injustices it has wrought and what we can do to fix it. The good news is that much of this can be fixed. Congress could repeal or reform the AEDPA tomorrow. And for all the criticism of his criminal justice record — most of it justified — Joe Biden was one of the most vocal critics of the AEDPA’s habeas provisions. The then-senator warned of dire consequences if those provisions passed. History has proved him right.”

S.601, A bill to amend section 3661 of title 18, United States Code, to prohibit the consideration of acquitted conduct at sentencing (March 4, 2021)

Press Release, Durbin, Grassley, Cohen, Armstrong Introduce Bipartisan, Bicameral Prohibiting Punishment Of Acquitted Conduct Act (March 4, 2021)

Washington Post, It’s time to repeal the worst criminal justice law of the past 30 years (March 3, 2021)

– Thomas L. Root