Tag Archives: amendment 821

Sometimes You Can Speak For Yourself, 6th Circuit Says – Update for October 16, 2025

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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.

CATCH-22

When Derek Riley pled guilty in 2016 to conspiracy to distribute controlled substances, his Guidelines Criminal History Category was III yielded an advisory sentencing range of 135 to 168 months. The district court sentenced him to 160 months.

In 2023, Amendment 821 to the Sentencing Guidelines retroactively lowered some criminal history points, including Derek’s. His new Guideline sentencing range was 121 to 151 months. A public defender representing him in the resentencing stipulated with the government to a 144-month sentence, which the court imposed.

Derek was not happy with the new sentence and filed a document he wrote himself called a “Motion for Reconsideration.” In it, he stated that his attorney had agreed to the stipulation as to his sentence without his knowledge or consent and that, therefore, the district court should reconsider and entertain the arguments he wanted to make in favor of a “time-served” sentence. The district court denied the motion on the grounds that Derek had a lawyer and thus was not allowed to file pro se motions under the policy prohibiting “hybrid” representation. The court told Derek that if he wanted to file a motion for reconsideration claiming that his lawyer had gone off the reservation, he should have his lawyer file it for him.

Joseph Heller’s “Catch-22” was this: If a World War II bomber airman wanted to avoid flying combat missions over Europe by claiming he was insane, he had to apply for the exemption. But the combat missions were so dangerous – only 25 pct of aircrews survived the 25 missions they were to fly before being relieved – that claim madness to get out of combat was interpreted as proof of sanity, so the application would be denied. “Catch-22” now describes a paradoxical situation from which there is no escape.

Thinking that the court’s instruction that only his lawyer could file a motion claiming his lawyer had agreed to something without his client’s approval veered very close to being a “Catch-22,” Derek filed a pro se notice of appeal.

Last week, the 6th Circuit agreed with Derek. The Circuit acknowledged that the rule against hybrid representation was a good one, because usually, whether to file certain motions and what to say in those motions are decisions for counsel, not the defendant.

“But cases like this one,” the 6th held, “present a materially different landscape. Here, the court was not simply presented with a disagreement over strategic choices made by the attorney nor an instance of nonspecific dissatisfaction. Instead, the court was faced with the defendant’s specific allegation that his counsel made a decision affecting the overarching aims of the representation without his knowledge or assent. A defendant must be permitted to make important decisions as to the direction of his case regardless of whether he is represented. A lawyer may not override a defendant’s decision to accept or reject a plea offer or disposition offered by the government because ‘decisions regarding the exercise or waiver of basic trial rights are of such moment that they cannot be made for the defendant by a surrogate…’ Where a defendant alleges conduct that amounts to such a violation, his allegations, if true, point to a breakdown in proper representation. His dissatisfaction and disagreement with his counsel should, therefore, be an apparent and pressing concern, triggering the district court’s obligation to investigate.”

The Circuit observed that the “clear thrust of the motion was that Riley wanted to proceed pro se because his counsel had agreed to a specific disposition of his § 3582 motion (a revised sentence of 144 months) without his consent. The district court then had an obligation to address that allegation directly in deciding Riley’s pro se motion.”

United States v. Riley, Case No. 24-1287, 2025 U.S.App. LEXIS 26350 (6th Cir. October 9, 2025)

~ Thomas L. Root

Sentence Reduction: Like Vegas But Without Free Drinks – Update for May 16, 2025

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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.

SENTENCE REDUCTION ODDS AREN’T GREAT, USSC DATA SHOW

dice161221The United States Sentencing Commission released some interesting retrospective data on Wednesday, showing that winning sentence reductions based on retroactive Guidelines is not necessarily a sure bet.

While you’re losing in a casino, you’re often given free drinks. In federal court, not so often…

In November 2023, the Commission adopted Amendment 821, which changed how criminal history is calculated for purposes of figuring a defendant’s advisory sentencing range. The USSC did away with “status points,” the extra two criminal history points applied when a new offense is committed while the offender is on parole, supervised release, or probation. On the other end of the spectrum, the Commission decided that a defendant who had zero criminal history points was entitled to a two-level reduction in his or her Total Offense Level.

The structure of the process for winning a sentence reduction based on Guidelines changes that are deemed retroactive is governed by 18 USC § 3582(c)(2). If the defendant is eligible (which is not the slam-dunk you might think it is), the district court is nevertheless entitled to determine with almost unreviewable discretion whether the offender deserves all of the break offered by the new lower Guideline, some of the break, or none at all.

funwithnumbers170511Since the Commission’s change in status points became effective, 15,177 federal inmates (9.6% of the prison population) have applied for reduction. Of those, district courts across the nation granted 36%, only about a third of the motions filed. Out of districts with more than 100 applications filed, Eastern Wisconsin was the toughest (97.2% denied), with Southern Iowa, Southern New York, Minnesota, and Eastern Arkansas in second place, all around an 80% denial rate. Maryland (93.8% approval rate), Kansas (66.1% approval), and Northern Alabama (61.0% approval) were the best.

Defendants who sought the zero-point criminal history reduction hardly fared better. Out of 11,749 applications (7.4% of the inmate population) to have the Guidelines 2-level reduction applied, only 32.2% received reductions. Out of districts with more than 100 applications filed, Arizona (91.2% denied), followed by Southern Iowa (89.7% denied) and South Dakota (88.3% denied) were the worst places for a prisoner to be. The best place to get a status point reduction was South Dakota (88.3% denied), with Eastern Texas (64.0% approval rate), Middle Florida (61.1% approval), and New Jersey (47.7% approval) as runners up.

compeddrink2400716The Commission also released compassionate release numbers through March 2025. Since the inception of inmate-filed motions under 18 USC § 3582(c)(1)(A) – the so-called compassionate release motion – with passage of the First Step Act in December 2018, 12,916 motions have been filed, with 13.7% granted. Through March 2025, the success rate has held roughly steady – 89 such motions have been granted, 13.4% of the total filed.

US Sentencing Commission, Part A of the 2023 Criminal History Amendment Retroactivity Data Report (May 14, 2025)

US Sentencing Commission, Part B of the 2023 Criminal History Amendment Retroactivity Data Report (May 14, 2025)

US Sentencing Commission, Compassionate Release Data Report, Preliminary Fiscal Year 2025 Cumulative Data through 2nd Quarter (May 14, 2025)

– Thomas L. Root

How Do I Love Thee? Let Me Count the Ways – Update for April 3, 2025

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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.

YOU ALWAYS HURT THE ONE YOU LOVE

Elizabeth Barrett Browning’s famous sonnet comes to mind in the tale of the Bureau of Prisons nurse who loved a little too much…

lovethee250403Jessica Larson, a BOP nurse at the Federal Medical Center at Rochester, Minnesota, was indicted last week for abusive sexual conduct with an inmate, identified in the indictment as “Victim A.”

Officials say that Jessica “engaged in a romantic relationship with an inmate.” The relationship included the exchange of explicit letters and an intimate encounter in a shower room.

After the interlude in the shower, other staff nurses reported the relationship. When investigators found the intimate letters and “confronted Larson about her relationship with the inmate, she submitted a report where she allegedly falsely accused the inmate of sexual assault.”

hurtonelove250403The indictment may be a first: accusing a BOP employee of criminal misconduct – a violation of 18 U.S.C. § 1001 for making a false statement about a matter within the jurisdiction of a government agency – for filing an incident report that falsely accused an inmate of misconduct.

The BOP placed Jessica on administrative leave. Amazingly, after having thrown her inmate lover under the bus, “two months later… Larson drove more than 600 miles from her home in Iowa to Cincinnati, Ohio, to maul a love letter to Victim A, who had been transferred to another BOP facility,” the indictment alleges.

‘Sorry I accused you of a federal felony… but I still love you.’

“In Minnesota, we take sexual abuse—particularly when committed by those in positions of authority—very seriously,” Acting U.S. Attorney Lisa D. Kirkpatrick (D. Minnesota) said in a press release. “Likewise, lying to the United States is unacceptable and will not be tolerated. My office will continue to aggressively prosecute defendants who commit these crimes.”

KMSP-TV, Rochester prison nurse had affair with inmate, exchanged letters: Indictment (March 28, 2025)

COUNTING THE WAYS

More on the sonnet…

While Melissa Barrett was serving a 168-month sentence for drug offenses, Guidelines Amendment 821 took effect. The amendment limited the impact of criminal history “status points” that had been used to calculate Mel’s original Guideline range.

Mel was in love, too… with the idea of getting out of prison as quickly as possible (not that we blame her).  Relying on Amendment 821, she moved for a sentence reduction to 120 months.

retro240506The government agreed Mel was eligible for a retroactive sentence reduction under 18 U.S.C. § 3582(c)(2) but not to the level she sought. Mel argued that Amendment 821 both reduced her criminal history points from three to one (putting her in Criminal History Category I) but also entitled her to a reduction in her offense level because she was now eligible for the USSG § 2D1.1(b)(17) 2-level safety valve reduction allowed for qualified defendants with only one criminal history point.

The government believed Amendment 821 should be applied only to Mel’s criminal history category, letting the court cut her sentence no lower than 150 months. The district court agreed and reduced her sentence to 150 months rather than the 120 months she had requested.

Mel argued to the 4th Circuit that the district court was wrong not to give Amendment 821 retroactive effect for safety-valve purposes. Last week, the 4th Circuit agreed.

To qualify for the safety valve, Melissa could have no more than one criminal history point (this has increased since she was sentenced, but Mel was stuck with the Guidelines that applied on her sentencing date). She also had to meet requirements of no violence in her case, no gun, no leadership role, and other standards listed in Guideline § 5C1.2(a)(1). Because she had too many criminal history points, the district court did not bother to make any other safety valve findings.

The district court believed it lacked the authority to make any new factual findings on an Amendment 821 resentencing. But the 4th held that nothing “prevents the court [in a § 3582(c)(2) proceeding] from making new findings that are supported by the record and not inconsistent with the findings made in the original sentencing determination.”

safetyvalv200618The appeals court said, “We appreciate the government’s point that a defendant’s criminal history category and her offense level are separate calculations under the Guidelines, serving separate purposes. For that reason, a retroactive change to one ordinarily will not affect the other. But this appears to be an unusual case, in that the Guidelines closely and directly connect the two, tying a defendant’s criminal history score under § 4A1.1 to both her criminal history category and her qualification for a two-level offense adjustment under § 2D1.1(b)(17). Where an amendment has this kind of direct impact on two provisions integral to a defendant’s “amended guideline range,” see USSG § 1B1.10(b)(1), retroactive application of that amendment means accounting for both.

United States v. Barrett, Case No. 24-6293, 2025 U.S. App. LEXIS 7111 (4th Cir., March 27, 2025)

– Thomas L. Root