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FUTILITY
Two decisions last week should serve as cautionary tales for people seeking a sentence break from the courts, without really being able to explain to the courts why they are seeking the break they want.
In the 7th Circuit, Mike Millis filed a 28 USC § 2241 petition for writ of habeas corpus, arguing that his career-offender Guidelines enhancement (USSG § 4B1.1) should not have been applied in his case. As a result of his 1994 crime spree, Mike was convicted of several robbery counts, which included two 18 USC § 924(c) counts for using a gun. The § 924(c) counts, of course, were stacked. When the dust settled, Mike’s sentencing range began at 562 months.
That was too much for his judge, who departed downward to a still-shocking 410 months.
In the intervening 26 years, Mike filed and lost a 28 USC § 2255 motion in his Eastern District of Kentucky home. But well after that, the 6th Circuit held in a different case that one of the prior convictions relied on to make Mike a Guidelines career offender – an Ohio aggravated assault conviction – could not be used as a basis for career offender. Because the change in the law did not open the door to a new § 2255 motion. But Mike relied on the § 2255(e) “saving clause,” which lets prisoners use a § 2241 motion where the § 2255 would be “inadequate or ineffective to test the legality of his detention.”
Last week, the 7th Circuit shot him down. One of the standards for being able to use the 28 USC § 2255(e) saving clause, the Circuit said, is that the prior conviction or sentence has to constitute a miscarriage of justice. Here, Mike’s sentence range had started at 567 months. But if he had not been a career offender, the Circuit said, his 410-month sentence would still have fallen within what his non-career sentencing range would have been.
Because of that, the sentence – although the career offender status was wrong – was not a miscarriage of justice. This made the § 2255(e) saving clause unavailable to Mike.
So what was Mike’s point? I am guessing that he was looking to get rid of the career-offender label, because he is or will soon seek to get his second § 924(c) conviction cut from 300 months to 60 months, which is all he could have gotten under the law since passage of the First Step Act made clear that the 300-month mandatory sentence only applies after a prior conviction for a § 924(c) offense. Knocking 240 months off his sentence would let Mike out after having only served 260-some months (21 years) in prison.
Talk about soft on crime!
Meanwhile, over in the 8th Circuit, Brett Corrigan got a mandatory-minimum sentence of 60 months in prison, based on quantity of drugs involved in his case. At sentencing, his district court gave him a 2-level enhancement under USSG § 2D1.1(b)(1) for possessing a dangerous weapon, which gave him an advisory sentencing range of 60 to 71 months in prison. The judge gave him 60 months, the bottom of the range, (which, incidentally, was his mandatory minimum sentence).
That did not stop Brett, who appealed the 2-level enhancement to the Court of Appeals. Last week the 8th Circuit denied him any relief. “Nothing we do here will affect Corrigan’s sentence, meaning that we lack the ability to provide any effectual relief.,” the Circuit said. “Win or lose, it makes no difference—his sentence will remain 60 months because of the mandatory minimum. In jurisdictional terms, Corrigan lacks a cognizable interest in the outcome, which means that there is no longer a live case or controversy under Article III.”
So why bother appealing? I suspect what Brett was fighting for was to get the 2-level gun enhancement lifted, because the enhancement made him ineligible to take the Bureau of Prison’s Residential Drug Abuse Program. The RDAP would entitle him to another 12 months off his sentence under 18 USC § 3621(e)(2)(B), meaning that Brett very much had something at stake here. It’s just that the courts generally seem not to appreciate the adverse effects that enhancements like that – which often get added on the flimsiest of evidence – have on a defendant’s prison term.
Millis v. Segal, Case No. 20-1520, 2021 U.S. App. LEXIS 22349 (7th Cir., July 28, 2021)
United States v. Corrigan, Case No. 20-1682, 2021 U.S. App. LEXIS 22166 (8th Cir., July 27, 2021)
– Thomas L. Root