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Goodbye to 2024 (and Good Riddance, the BOP says) – Update for December 31, 2024

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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.

BOP’S BUMPY END TO 2024

No doubt Colette Peters will be glad to see the last of 2024, even if 2025 and the advent of a Trump presidency makes her continued role as Bureau of Prisons director uncertain. Just in the last few weeks:

deathholiday241231• Death Does Not Take A Holiday: 28-year-old Keenan Byrd died on December 18th at FCI Bennettsville of yet-unannounced causes, 50-year-old Michael Miske died of an overdose of synthetic fentanyl at FDC Honolulu on December 1st, Juan Parrado died last Thursday at FCI Thomson of undisclosed causes, and on December 6th, 41-year-old Jonathan Strader died at FCI Lewisburg died.

NTD Television reported that an “Associated Press investigation uncovered deep-seated problems within the BOP, including rampant sexual abuse, staff criminal conduct, escapes, chronic violence, and severe staffing shortages, which have slowed staff responses to emergencies, including inmate assaults and suicides;”

• The Rap Sheet: Former BOP lieutenant Daniel Mitchell pled guilty last week in federal court to conspiracy to violate an inmate’s civil rights by getting another officer to assault a SHU inmate for exposing himself in front of a female BOP officer. The offense carries a 10-year statutory maximum sentence.

Meanwhile, the 9th Circuit last week upheld an 18 USC § 922(g)(8) conviction of an FDC Seatac CO who carried a gun for his private security gig after a domestic protection order was entered against him (the same offense that brought Zackey Rahimi low);

medical told you I was sick221017Finally, former BOP Lieutenant Shronda Covington was found guilty on December 21 of violating an FCI Petersburg inmate’s civil rights by showing deliberate indifference to his serious medical needs. Covington and nurse Tonya Farley, R.N., were both convicted of lying to federal agents about the inmate’s death. Another BOP Lieutenant, Michael Anderson, previously pled guilty to his role in the same death and has been sentenced to 36 months;

unionpicket241231• Union Unrest: I previously reported that the AFGE Council of Prison Locals filed an unfair labor practice claim against the BOP for violating its labor-management agreement with the union by closing FCI Morgantown. It now appears that the ULP claim covers 401 employees at all seven camps being closed, Some employees will be reassigned to other facilities, while others face being let go. The ULP claims the BOP “is obligated under the law to notify and bargain with the union on these changes to working conditions and employment” and asks the Federal Labor Relations Authority to order BOP to halt the closure and to bargain with the union.

Meanwhile, workers at FPC Duluth are mobilizing to prevent the standalone camp’s shutdown. BOP employee and union rep Tanya Gajeski has been garnering support from local congressional leaders like Sen. Amy Klobuchar (D-MN), who said she has spoken to BOP Director Peters about her opposition to the closure, and Rep. Pete Stauber (R-MN), who questioned the reasoning behind the closure in correspondence to Peters.

WBTW, 28-year-old inmate dies at Bennettsville prison (December 20, 2024)

NTD Television Network, Hawaii Crime Boss Dies of Opioid Overdose in Federal Custody (December 26, 2024)

WQAD, Male inmate dies at FCI Thomson; FBI notified (December 27, 2024)

Sunbury Daily Item, Lewisburg federal inmate dies (December 7, 2024)

United States v. Shuemake, Case No 22-30210, 2024 U.S. App. LEXIS 32685 (9th Cir. December 26, 2024)

WBTW, Federal prison lieutenant could get 10 years for role in North Carolina inmate’s assault (December 28, 2024)

U.S. Attorney, E.D. Virginia, Former Federal Bureau of Prisons employees convicted of charges arising from their failure to obtain medical care for an inmate who later died from his injuries (December 24, 2024)

AFGE Press Release, AFGE Files Unfair Labor Practice Against BOP for Displacing 400 Workers Without Bargaining with Union (December 23, 2024)

St. Paul Pioneer Press, Duluth Federal Prison Camp workers seek allies in push to save jobs, facility (December 24, 2024)

– Thomas L. Root

Assault With a Deadly Weapon Is Not Violent under Guidelines, 9th Holds – Update for September 9, 2024

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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.

9TH HOLDS CALIFORNIA ASSAULT WITH DEADLY WEAPON IS NOT A GUIDELINES VIOLENT CRIME

The Sentencing Commission is required by 28 USC § 994(h) to include provisions in the Guidelines to ensure that people with more than one prior conviction for crimes of violence or drug trafficking are sentenced “at or near the maximum term authorized” by statute. To carry out that mandate, the Commission created the career offender provision in Chapter 4B of the Guidelines.

Jesus Gomez was sentenced to 188 months for a drug distribution offense, being found to be a Guidelines career offender because of a prior conviction for assault with a deadly weapon (ADW) under California Penal Code § 245(a)(1).

Last week, the 9th Circuit vacated his sentence, holding that its prior decisions that California ADW was a crime of violence “are clearly irreconcilable with the Supreme Court’s ruling in Borden v. United States.

violence181008In Borden, the Supreme Court held that the mens rea requirement of USSG § 4B1.1 stems from the language requiring that force be used “against the person… of another.” A defendant acts recklessly when he “consciously disregards a substantial and unjustifiable risk.” But the phrase “against another” demands that the defendant “direct his action… at another individual.” Because reckless conduct is not aimed “in that prescribed manner,” the Borden court ruled, it does not satisfy the elements clause of 4B1.1.

California state courts have previously recognized that the ADW statute does not require an intent to cause harm but instead only requires an intent to do the act that results in harm. The Gomez court ruled that the ADW’s “intentional act” requirement does not equate to the “intent to harm” or “purpose” mens rea required for a Guidelines crime of violence.

Jesus, whose non-career offender Guidelines are 130-162 months, will go back for resentencing.

United States v. Gomez, Case No. 23-435, 2024 U.S.App. LEXIS 22457 (9th Cir. Sep 4, 2024)

Borden v. United States, 593 US 420 (2021)

– Thomas L. Root