Tag Archives: apprendi

A Compassionate Release Math Lesson – Update for June 15, 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.

3582 ≠ 2255, 6TH CIRCUIT SAYS

Most of the time, unsavory houseguests nick a towel from the bathroom or a spoon from the silver. Not Lennie Day. While staying at Roy West’s Akron, Ohio, house (the decision says he was “hiding out”), Lennie stole $300,000 in cash and jewelry, a .40-caliber gun, and car keys.

houseguest230615If this had been an Airbnb rental, Lennie would have gotten a flaming’ bad review.

Roy, appalled at Lennie’s poor manners, felt that he should confront his erstwhile guest and upbraid him for his rudeness. So Roy organized a posse of friends, led them to Detroit, and asked them to locate Lennie
so that he could express his unhappiness directly to Lennie. He didn’t find him, but later, Lennie passed away after being perforated by several bullets. Sadly, Roy never got to tell Lennie what a faux pas his guest had committed…

In 2014, Roy was convicted for his participation in what the government labeled a murder-for-hire conspiracy targeting Lennie. He was sentenced to life in prison. His direct appeal and a post-conviction motion under 28 USC § 2255 failed.

Eight years later, Roy sought compassionate release under 18 USC § 3582(c)(1)(A). He argued that extraordinary and compelling reasons for the reduction included his risk of catching COVID, his rehabilitation, and – raising it for the first time – that his sentence violated Apprendi v New Jersey, a 2000 Supreme Court decision holding that any statutory sentencing enhancement had to be supported by a jury finding the facts supporting the enhancement beyond a reasonable doubt.

Roy claimed that the jury instructions given at his trial did not require the jury to find that death resulted from the conspiracy – a necessary finding for the court to impose a life sentence for the crime.

The district court didn’t bite on the medical risk for COVID, but it did find that the Apprendi error and Roy’s rehabilitation constituted “extraordinary and compelling reasons” to reduce his sentence. It reduced Roy’s sentence to 17 years and cut him loose.

Last week, the 6th Circuit reversed, agreeing with the government that Roy’s § 3582 motion was really a second or successive § 2255 motion in mufti.

mufti230615The Circuit assumed the district court was right that “a harmful Apprendi violation occurred.” That doesn’t matter, the Circuit said, because “compassionate release cannot ‘provide an end run around habeas.’ The § 2255 procedure “provides a specific, comprehensive statutory scheme for post-conviction relief” and therefore, the 6th ruled, “any attempt to attack a prisoner’s sentence or conviction must abide by its procedural strictures.”

Once a prisoner has already filed and appealed the denial of a § 2255 motion (as Roy had already done), “relief cannot be obtained in a successive § 2255 motion unless new evidence or a new rule of constitutional law is announced,” the Circuit held. Roy “cannot avoid these restrictions on post-conviction relief by resorting to a request for compassionate release instead.”

Of course, because Apprendi predated Roy’s conviction and – for whatever reason – the error was not raised in his self-written § 2255, there is no way he will be allowed a second § 2255. Roy will just have to do his sentence. For the rest of his natural life.

United States v. West, Case No. 22-2037, 2023 U.S. App. LEXIS 14424 (6th Cir. June 9, 2023)

– Thomas L. Root

SCOTUS Remands Haymond With Muddled Opinion – LISA Update for June 27, 2019

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

SUPREME COURT BADLY SPLIT ON SUPERVISED RELEASE REVOCATION

The Supreme Court today fractured badly on whether a supervised release revocation requires a jury finding beyond a reasonable doubt.

The issue was an extreme one: Under 18 USC § 3583(k), a supervised release violation involving certain statutes prohibiting child sex abuse or pornography requires a mandatory five-year additional term. The Tenth Circuit had declared the provision unconstitutional, raising the question whether ANY supervised release violation that included a prison term could be found unless a jury did so beyond a reasonable doubt.

scotussplit190627Yesterday, four justices found that supervised release violations that led to prison terms had to be found by a jury beyond a reasonable doubt. Justice Neil Gorsuch wrote, “The lesson for this case is clear: Based solely on the facts reflected in the jury’s verdict, Mr. Haymond faced a lawful prison term of between zero and 10 years. But just like the facts the judge found at the defendant’s sentencing hearing in Alleyne, the facts the judge found here increased “the legally prescribed range of allowable sentences” in violation of the Fifth and Sixth Amendments.”

However, four Justices are not a majority. Justice Breyer, in a concurring opinion, agreed that the particular provision at issue, 18 USC § 3583(k), is unconstitutional. But because the role of the judge in a typical supervised-release proceeding is consistent with traditional parole and because Congress clearly did not intend the supervised release system to differ from parole in this respect, he did not agree with the other four that the Apprendi line of cases applied in the supervised-release context.

Four other justices dissented sharply.

Under precedent, § 3583(k) is declared unconstitutional, but Justice Breyer’s narrower decision controls. Thus, for now, traditional supervised release violations remain free of a reasonable-doubt Apprendi v. New Jersey requirement.

A final opinion day for the Supreme Court’s year is set for today. We expect the decision in Carpenter v. Murphy at that time.

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

– Thomas L. Root

Could SCOTUS Decision in Haymond “Bring Down Supervised Release?” – Update for March 4, 2019

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

AN UNSURPRISING WIN AND A PROMISING ORAL ARGUMENT

The Supreme Court last week ruled that even if a defendant’s plea agreement includes an appeal waiver, defense counsel renders ineffective assistance of counsel by not filing a notice of appeal  if the defendant asks for one.

The decision – Garza v. Idaho – is not such a big deal. Every circuit that has considered the question, except for the 3rd and 7th, already follows the rule.

appeal181107Since the 2000 Roe v. Flores-Ortega decision, if a defendant asks defense counsel to file a notice of appeal, and the lawyer does not, it is considered ineffective assistance of counsel (which violates the 6th Amendment) regardless of whether the appeal had any chance of winning. Some courts, however, have wondered whether the Roe rule should apply where a defendant’s plea agreement waiving appeal rights. A few places, including Idaho, have held that in that case, failure to file a notice of appeal would be ineffective assistance of counsel only if the defendant could show a reasonable probability that he or she would have won on appeal.

easyappeal190304Last week, the Supreme Court disagreed. It noted that even a defendant waiving appeal retains the right to appeal limited issues (such as claiming defense counsel was ineffective for ever getting the defendant to sign the plea agreement to begin with). The Supremes said that filing the one-page notice of appeal is very easy (the notice does not even have to list the issues being appealed), and most defendants have a pretty ill-formed idea of what the issues should be before the transcripts are prepared. For those reasons, SCOTUS said, the Roe rule should apply for plea waivers: if your lawyer fails to file a notice of appeal after you ask him or her to, it is ineffective assistance of counsel, even where you waived your appeal rights.

Perhaps more significant, the Supremes heard oral argument last week that could bring down supervised release. The case question the constitutionality of 18 USC 3583(k), which requires convicted sex offenders to return to prison for at least five years if a judge finds they have committed certain crimes. The defendant in the case, Andre Haymond, served time for child porn, and was returned to prison after he violated supervised release. He argued that the law violates his right to have his sentence determined by a jury, rather than a judge, beyond a reasonable doubt.

Eight justices seemed likely to agree with him, even if it was not yet clear how they will remedy the constitutional violation. Several questioned the government’s view that a jury was not required to find the facts leading to a supervised release violation and more prison time. Much of the oral argument focused less on whether the law was unconstitutional and more on how to fix it.

supervisedleash181107Haymond is consequential to all of supervised release. As it is, while on supervised release, a defendant is subject to violation for a variety of technical, non-criminal conduct, and may be returned to prison if the court finds by a mere preponderance of the evidence that the defendant committed the violation. Haymond could upend this, extending the constitutional guarantees of Apprendi v. New Jersey and Blakely v. Washington (that people can lose liberty only upon admissions of guilt or findings of a jury beyond a reasonable doubt) to supervised release violations as well. In fact, Justice Samuel Alito – the only Justice in the government’s corner – complained during argument that a ruling for Haymond could “bring down the entire supervised release system.”

Statistics say one out of three people released on supervised release will be violated, making this case huge.

Ohio State University law professor Doug Berman said in his Sentencing Law and Policy blog that “there may now be eight Justices prepared to extend Apprendi/Blakely rights to supervised release revocation. Now we what to see just how big the ultimate opinion will be (and how loudly Justice Alito will complain about more procedural rights for criminal defendants).”

Garza v. Idaho, Case No. 17-1026 (Feb. 26, 2019)

United States v. Haymond, Case No. 17-1672 (argued Feb. 26)

Sentencing Law and Policy, Haymond seemingly to become major Apprendi progeny altering federal supervised release revocations (Feb. 26)

– Thomas L. Root