Tag Archives: career offender

Meatloaf Was Right – Update for February 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.

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TWO OUTTA THREE AIN’T BAD…

twoouttathreeb161026Under the Armed Career Criminal Act, a defendant convicted of possession of a firearm as a convicted felon would see his or her sentence increase from a 0-10 year range to a 15-year-to-life range if he or she had three prior convictions for crimes of violence or serious drug offenses. Any who could possibly object? It makes perfect sense that we would want to get these gun-wielding lifetime lowlives off the streets for a long time.

Likewise the Sentencing Guidelines, which jack up the sentencing ranges for what it calls “career offenders,” people getting convicted of drug or violent crime offenses with only two qualifying priors of much the same flavor as the ACCA predicates. Think of Guidelines “career offenders” as “ACCA Lite.” Nevertheless, who among us law-abiding citizens would not want to see these no-goodniks safely behind bars for a long time?

But things seldom work out in practice the way they sound in a Capitol Hill soundbite. The prosecutors ran with it, and so we had people getting the ACCA label for prior offenses of drunk driving or walking away from a halfway house. We personally know one guy who broke into a barbershop one night, and – while he was there – went to the door leading to the attached beauty shop. Hr got bupkis in the burglary, but 10 years later, the prosecutors counted it as two burglaries (which are categorically “crimes of violence”) not one. Another guy sold drugs for a week nine years before, and did a year of state time. But he pled guilty to three counts, selling a dime bag each day for three days in a row. The court called that three serious drug offenses, not one, and he got 15 years.

But the ACCA and “career offender” Guidelines have been mangled by defendants, too. A “crime of violence” has to be defined, and – as we have explained before – that’s not always easy. But surprisingly enough, it’s not always simple to figure out what a “serious drug offense,” is, either. The statute says it’s either (1)  an offense under the federal Controlled Substances Act with a max sentence of 10 years or more; or (2) an offense under state law “involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance” with a max of 10 years or more. It looks straightforward, but it is not.

drugdealer180228After the Supreme Court’s 2016 Mathis decision, defendants are not just looking for crimes of violence that are too broad for the ACCA and Guidelines career offender enhancement. The statute defines a prior state offense as involving “manufacturing, distributing, or possessing with intent to manufacture or distribute.” But state statutes sometimes include “transporting” or “offering to sell” in their definitions, and those are broader than the ACCA/Guidelines definition. Thus, defendants seek to invalidate state drug convictions for being too broad.

Corey Jones tried that, arguing that his Illinois drug conviction did not count toward Guidelines career offender status, because it applied not just to controlled substances and counterfeit drugs, but to controlled substance analogs, too. He argued the CSA only applied to two of those – controlled substances and counterfeit drugs – making his prior under 720 Ill.Stat. 570/401 too broad. Two outta three, he argued, was bad.

Last week, the 8th Circuit turned him down, holding that two outta three ain’t bad. While 21 USC 841 (the defining offense statute in the CSA) does not mention analogs, Title 21 USC 802(32)(a)  defines analog (albeit spelled “analogue”) and Sec. 813 provides “that a controlled substance analogue shall, to the extent intended for human consumption, be treated, for the purposes of any Federal law as a controlled substance in schedule I… Differences in spelling notwithstanding, we find no material distinction between the term “analog” as used in 720 Ill.Stat. 570/401 and the federal term “analogue” as used in Sec. 813. We therefore conclude Jones’s two prior Illinois convictions categorically qualify” for career offender status.

 United States v. Jones, Case No. 17-1710 (8th Cir. Feb. 21, 2018)

– Thomas L. Root

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Draco Would Be Proud of the 2nd Circuit – Update for October 10, 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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BITE ME

bite171010Not much shocks us anymore, an unfortunate by-product of the equally unfortunate aging process, but a 2nd Circuit decision the other day made us feel like kids again… amazed, disgusted, shocked kids.

Corey Jones, a 39-year old with an IQ of 69, was in his last 5 months of an 8-year felon-in-possession conviction. While a resident of a halfway house, Corey “allegedly grumbled and was insolent to a staff member,” as two concurring judges described it. The halfway house called the U.S. Marshals to haul Corey back to prison to complete his final few months. Corey “resisted arrest,” which – again according to the dissent – did not consist of kicking or punching, or even stepping towards the marshals in a threatening manner. But when the marshals “were trying to lower his head to the ground,” which is a euphemistic way to describe throwing Corey to the floor, “the hand of the marshal who was apprehending Jones slipped down Jones’ face, and Jones bit him, causing the finger to bleed.”

The injured marshal was a tough guy, or maybe just had more common sense that the United States Attorney. He figured it was no big deal. He suffered no loss because of the injury, and – despite the notoriously generous government policies giving paid time off and God knows what else to employees injured on the job, he did not request any compensation.

Even the Assistant United States Attorney admitted that the bite was “not the most serious wound you’ll ever see.” But such a niggling technicality did not inconvenience the U.S. Attorney’s Office, which asked for and got a single-count indictment against Corey for assaulting a federal officer.

Corey was convicted after a trial. His sentencing Guidelines calculation ended up at a whopping 17½ to 20 years. The judge mercifully sentenced him to 15 years.

That’s right. Nip a marshal’s finger, get 15 years in federal prison. Draco would have been proud.

draco171010You couldn’t make this stuff up.

Corey’s sentencing range was so high because 23 years ago, juvenile Corey was convicted of 1st degree robbery in New York, and 20 years ago, he shot a guy in the leg, which netted him an assault conviction. Those two convictions – both of which occurred half a life ago for slow-witted Corey, made him a “career offender” under the Guidelines. (Without the “career offender” label, Corey was looking at 3-4 years.)

On appeal, Corey argued that New York 1st degree robbery was not a “crime of violence” under the Guidelines and that his sentence was unreasonable. Last week, the 2nd Circuit affirmed that Corey will remain in prison until he’s at least 50 years old. All for a bitten finger.

Corey argued that under New York law, 1st degree robbery could be committed using minimal force, not enough to meet the “crime of violence” standard of “physical force.” In a previous opinion, the 2nd Circuit had agreed with Corey, and further concluded that after Johnson v. United States invalidated the “residual clause,” 1st degree robbery could not be counted as a predicate for a “career offender” sentence.

The residual clause in USSG 4B1.2(a)(2) provides that a crime of violence includes any offense that ” involves conduct that presents a serious potential risk of physical injury to another.” The same language used to appear in the Armed Career Criminal Act, but Johnson held it was so vague in its meaning that application of it violated due process.

But after Corey’s sentenced was vacated, the 2nd Circuit vacated the vacation, withdrawing the opinion until the Supreme Court settled whether Johnson’s holding applied equally to the Sentencing Guidelines. After the high court decided in Beckles v. United States that it did not, the 2nd Circuit took up Corey’s case again.

Robber160229“Robbery” is one of the crimes specifically listed in the “career offender” Guideline as categorically being a crime of violence. But, Corey argued that New York’s robbery statute was broader than the generic definition. He contended the generic definition of robbery requires the use or threat of force in the process of taking the property, while the New York statute would be violated by a robber who uses or threatens force after assuming dominion of the property.

The appellate court rejected the argument. It said the generic definition of robbery, however, is broader than that. Although the common law definition confines robbery to the use or threat of force before, or simultaneous to, the assertion of dominion over property, “a majority of states have departed from the common law definition of robbery, broadening it, either statutorily or by judicial fiat, to also prohibit the peaceful assertion of dominion followed by the use or threat of force.” This broader definition, the court said, “has supplanted the common law meaning as the generic definition of robbery.”

What’s more, the appellate court said, “We have little difficulty concluding that the ‘least of the acts’ of first-degree robbery satisfies the definition of the Guidelines’ residual clause. The least of the acts, both sides agree, is “forcibly stealing property” while “armed with a deadly weapon.” Plainly, a robber who forcibly steals property from a person or from his immediate vicinity, while armed with a deadly weapon, engages in “conduct that presents a serious potential risk of physical injury to another.”

draconian170725Because the sentence fell below the advisory Guideline range, the 2nd held that it was substantively reasonable. The concurring judges agreed that because the court was bound to consider Corey a “career offender” – even though the current version of the Guidelines has dropped the “residual clause” – the sentence was not substantively unreasonable. However, they termed the “result to be close to absurd.” If Corey’s appeal had been a little bit earlier, the reversal would not have been withdrawn. “This means that, as a result of timing quirks (his appeal to us was slightly too late, leading to our decision to pull our earlier opinion), Jones receives a very, very high sentence in contrast with almost every similarly situated defendant.”

United States v. Jones, Case No. 15-1518-cr (2nd Cir., October 5, 2017)

– Thomas L. Root

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3rd Circuit Expands Second-and-Successive 2255 Rights – Update for September 12, 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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ZAX’S PATIENCE REWARDED IN THE 3RD CIRCUIT

We reported several weeks ago that the 4th Circuit had joined the 6th in dodging the lingering question of whether Johnson v. United States applied to mandatory Guidelines sentences. Now, the 3rd Circuit has stepped into the breach.

violence151213The Armed Career Criminal Act provides that people with three prior convictions for serious drug offenses or crimes of violence face stiff mandatory minimum sentences. A crime of violence is defined as one of four specific offenses – burglary, extortion, arson or use of explosives – or any other crime that has as an element the actual or threatened use of physical force.

Up to two years ago, the ACCA’s definition has a third subcategory known as the residual clause. A crime of violence also included any crime that carried a substantial risk of physical harm to another. In Johnson, the Supreme Court ruled that this residual clause was so vague that the average person could not tell what offenses counted and what did not. Such a vague statute violates a defendant’s 5th Amendment due process rights. Because Johnson meant that a number of people serving ACCA sentences were in fact innocent of their offense, the Supreme Court held that it was retroactive, that is, that people already convicted could apply to courts with a 28 USC 2255 motion to obtain relief.

At the time, the ACCA definition of “crime of violence” appeared elsewhere in the criminal code as well as in the Guidelines, where it was used in several sections, especially in Chapter 4 to label someone a “career offender.” A “career offender” under the Guidelines faces dramatically increased sentencing ranges. Naturally, defendants serving long career offender sentences promptly filed for relief as well, despite the fact that Johnson only encompassed the ACCA, and not the Guidelines.

limitone170912Every federal criminal defendant is entitled to file one and only one 2255 motion after conviction, that filing being due within a year of the conviction becoming final. In order to file a second 2255, the defendant must request permission from the Court of Appeals first. Permission is granted only under limited circumstances, where there is newly discovered evidence that convincingly proves innocence, or where a new rule of constitutional law – like the Johnson holding – is made retroactive.

Soon after Johnson was decided in June 2015, Tom Hoffner asked the 3rd Circuit for permission to file a second 2255. He argued that Johnson was the new rule of constitutional law that should apply to his career offender sentence, which was handed down in 2000. Back then, judges were required by law to follow the Guidelines, which only changed in 2005 when the Supreme Court declared mandatory Guidelines unconstitutional in United States v. Booker.

zax170912Remember Dr. Seuss’s story of a North-Going Zax and a South-Going Zax, who run into each other? Both are trying to get to their desired locations, but neither will move out of the way to let the other one pass. While both stand facing each other, unmoving, the world continues on moving and time passes by.

Tom’s case was something like that. The statute directs courts of appeal to decide applications to file second 2255s within 30 days. Holding that the 30-day language in 28 USC 2244 is merely “advisory,” the 3rd Circuit required over two years to decide whether Tom should be allowed to file a second 2255.

While Tom patiently waited, toe to toe with the government like the two Zaxes, the world did not stand still. First, the Supreme Court decided in Welch v. United States that the Johnson holding should be retroactive. Then, the Supreme decided last March in Beckles v. United States that Johnson would not be extended to people who were career offenders under the advisory Guidelines, leaving open the question of whether Johnson could be extended to people like Tom who had become career offenders under the mandatory Guidelines.

After that, two cases that many thought would decide whether Johnson extended to mandatory Guidelines people the 6th Circuit in United States v. Raybon and the 4th Circuit in United States v. Brown – ended up turning on the decidedly procedural question of whether the 2255s had been filed on time.

rely170912Finally, Tom’s time came last Thursday. The 3rd Circuit handed down 25 pages of careful thought-out analysis on the issue, concluding that while Johnson did not necessarily address Tom’s precise issue, 2244(b) only looks at whether the movant’s claim “relies” on the new rule of constitutional law. Nothing mandates that it be precisely the same point that the movant wants to claim. Thus, if Johnson is a new rule of constitutional law applying to language in the ACCA, and Tom “relies” on that rule in his argument that the same vagueness infirmity afflicts a guideline used to sentence him, that reliance is enough to come within the statute.

The Circuit held that in analyzing 2244 motions, the court needed to lean toward grant.

The context of Section 2244(b)… supports interpreting “relies” permissibly and flexibly… As explained above, Congress has mandated that the “grant or denial of an authorization… shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari.” 28 U.S.C. § 2244(b)(3)(E). This creates an asymmetry in the impact of our gatekeeping decision on a particular case… On one hand, if we erroneously deny authorization, the petitioner “will have no opportunity to appeal or seek rehearing.” On the other hand, “if we err in granting certification, ample opportunity for correcting that error will remain.” The district court will have the opportunity to determine anew whether the petitioner has “shown that the claim satisfies the requirements of this section,” and whether the habeas petition has merit… In turn, we may review the district court’s decision.

It’s not a done deal that Tom will win the 2255 motion he now has permission to file (although you could be forgiven for reading it like the 3rd thinks he will). But the Circuit seems pretty convinced that there’s some merit in his claim.

The significance of this decision, which the 3rd Circuit issued as precedential, is its thoroughness in discussing the 2244 process. In a world where most decisions on second-and-successive 2255s are three-page affairs, and where the statutory limitations on certiorari mean that the Supreme Court will never be able to opine on the matter, this decision is as much guidance as any court has ever given on 2244 practice.

In re Hoffner, Case No. 15-2883 (3rd Circuit, Sept. 7, 2017)

– Thomas L. Root

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Counting Angels on Pins in the Guidelines – Update for July 26, 2017

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WHY SHOULD IT MATTER?

Consumers of the Federal Sentencing Guidelines – the courts that apply them, the lawyers that argue them, and the defendants that suffer under them – all have experience with the Byzantine nature of the code: enhancements are many and malleable, timelines are flexible as needed, and the quantum of evidence needed to jack up offense levels seems to fluctuate like political approval ratings.

emperor170726A refreshing 7th Circuit decision handed down Monday declared emphatically that the Guidelines emperor has no clothes. Crane Marks, who had pled guilty to conspiring to distributing heroin, was sentenced to 108 months, a sentence that was “either well above or well below the advisory range under the Sentencing Guidelines, depending on one issue,” the Court said. The district court decided the issue against Crane, but did so in a way that was both legally and factually defective.

Most of us who have spent any time at all in courtrooms have heard judges disgustedly ask parties – either the plaintiff or defendant, and sometimes both – “why are you here?” It hardly ever is asked as eloquently as it was in this case. The Circuit complained,

In all candor, [the] one issue [in this case] seems astonishingly technical and trivial. It has nothing to do with Marks’ culpability or the larger goals of sentencing. As we explain below, the issue is whether, when Marks was imprisoned on his fourth state drug conviction in 2000, he also had his state parole revoked on any of his earlier state drug convictions and was re‐imprisoned on that revocation as well. From this description of the issue, we hope readers will agree that this is one of those guideline issues that should prompt the sentencing judge to ask why the judge or anyone else should care about the an‐swer.

Because the issue seems so technical and trivial, we have examined the record in this case for any signs that the judge would have given Marks the same sentence regardless of how the technical criminal history issue was resolved. We found no such signs, however, so we have considered the technical guideline issue on the merits.

The issue was straightforward enough. Crane had enough prior state drug convictions to be a career offender under USSG Sec. 4B1.1, which would subject him to a dramatically higher sentencing range. However, for a prior drug sentence to count, it had to be otherwise eligible for criminal history points, meaning that Crane would have had to have been in prison for it within 15 years of the current offense.

guidelines170530The government and Crane agreed he was not a career offender, because he got out of prison on one of his qualifying priors, from 1994, more than 15 years before his current crime. This would have set his sentencing range at 51-63 months. But the Probation Officer writing the presentence report found some handwritten state prison records saying Crane had had his parole revoked on the 1994 case in 2000, which would put imprisonment on the offense within the 15-year window and make the 1994 case countable. The records showed that his parole was revoked, and he was “in the custody” of the state department of corrections. The Probation Officer – and the court – concluded Crane was a career offender. His career offender guidelines were 151-188 months, but the court sentenced him well below that at 108 months.

Probation officers work for the U.S. Probation and Pretrial Services, a judicial agency. They are often considered by the district court judges to be their trusted employees. This unhealthy familiarity, in our opinion, leaves judges way too willing to accept anything the probation officer says, even when both the government and the defendant disagree. So it was in this case.

The Court of Appeals was not wearing the same blinders. It concluded “that the court made both a legal error and a factual error. The legal error was that the court did not make the finding needed to treat Marks as a career offender under the Guidelines. The factual problem is that the court was not presented with reliable evidence from which it could have found that Marks was imprisoned on a revocation of parole on any earlier conviction. That means that Marks does not qualify, technically, as a career offender. His advisory guideline sentencing range is lower than the range found by the district court.”

checkoff170726The legal problem was that the state department of corrections treated anyone on home confinement, electronic monitoring or in prison as being “in custody.” This meant that the notation that Crane was “in custody” was irrelevant: only if he was actually locked up within the 15 years would the prior offense count. As the Circuit put it, “The broad concept of “custody” is not enough under Sec. 4A1.2(k)(2). The focus is “incarceration.” Proving that Marks’ parole terms did not expire until 2000 was not enough—the government had to show that Marks was incarcerated on at least one of those convictions.”

The factual problem was that the district court lacked reliable evidence to support application of the career‐offender Guideline. As a general rule, a sentencing judge may rely on a presentence report if it “is well‐supported and appears reliable,” the Circuit said. “But if a presentence report contains nothing but a naked or unsupported charge,” the defendant’s denial will suffice to call the report’s accuracy into doubt. Similarly, if the presentence report “omits crucial information, leaving ambiguity on the face of that document,” the government has the burden of independently demonstrating the accuracy of the report.”

Here, the records contained no narrative showing that Crane was given a new term of imprisonment for violating parole, or whether he was merely noted as being in custody on a potential parole violation. The fact that his sentence on 1994 conviction “was discharged only a few months after he pled guilty to the 2000 charge,” the Circuit said, “suggests that no revocation occurred. And it is difficult to understand why, if Marks’ parole was actually revoked, the government could not have supported the presentence report with a copy of the order of revocation.”

angels170726It seems so much like counting angels on the heads of pins. Had the trial judge stated on the record that his sentence would be 108 months with or without the career offender finding, the 7th would have simply called it a day. But without being able to tell from the record how the faulty career offender status influenced the trial court, the Circuit had no option but to remand the case for resentencing.

United States v. Marks, Case No. 15-2862 (7th Cir., July 24, 2017)

– Thomas L. Root

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