Tag Archives: compassionate release

Rely on USSC Guidance… Or Not, 7th Circuit Says – Update for April 18, 2023

Leave a comment

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

THAT WAS THEN, THIS IS NOW

Remember when the 7th Circuit ruled that old Guideline 1B1.13 – that rather rigidly defined what constituted an “extraordinary and compelling” reason for sentence reduction under 18 USC § 3582(c)(1)(A) – did not apply to inmate-filed compassionate release  motions?

The Circuit ruled in the 2020 United States v. Gunn decision that while 1B1.13 did not apply, the result was not a “sort of Wild West in court, with every district judge having an idiosyncratic release policy.” This was because “the substantive aspects of the Sentencing Commission’s analysis in 1B1.13 and its Application Notes provide a working definition of ‘extraordinary and compelling reasons’… the Commission’s analysis can guide discretion without being conclusive.”

wildwest230418Well, apparently, it guides until it doesn’t guide. And “doesn’t” happened last week, when the 7th ruled that a prisoner’s “unconstitutionally-imposed mandatory life sentence” from a 2001 case cannot be a part of the “extraordinary and compelling” reasons for a compassionate release despite the fact that a week before the opinion was issued, the Commission formally proposed amending 1B1.13 to include harsh sentences that no longer could be imposed due to a change in the law.

Suddenly, the Commission’s analysis provides no meaningful guidance to the Circuit at all:

The USSC is in the process of studying the issue, and recently it has proposed defining ‘extraordinary and compelling reasons’ to include circumstances in which ‘[t]he defendant is serving a sentence that is inequitable in light of changes in the law.’ But this effort is still at an early stage—so early that we see no value in speculating on what such a change would mean. Until the Commission definitively says otherwise, we will not deviate from our current understanding. We therefore affirm the judgment of the district court.

The opinion cited the draft USSC proposal from January and not the Commission’s April 5th action released eight days before the Circuit’s opinion was handed down. A reasonable observer could conclude that “the Commission [has] definitively [said] otherwise” at this point:

[T]he proposed amendment would add a new category (“Unusually Long Sentences”) providing that if a defendant received an unusually long sentence and has served at least 10 years of the term of imprisonment, a change in the law (other than an amendment to the Guidelines Manual that has not been made retroactive) may be considered in determining whether the defendant presents an extraordinary and compelling reason, but only where such change would produce a gross disparity between the sentence being served and the sentence likely to be imposed at the time the motion is filed, and after full consideration of the defendant’s individualized circumstances.

One can only hope that the prisoner’s attorney seeks rehearing of a decision that reflects much more sloppiness than one should expect from an appellate court.

United States v. Williams, Case No. 22-1212, 2023 U.S. App. LEXIS 8826 (7th Cir., April 13, 2023)

United States v. Gunn, 980 F.3d 1178 (7th Cir. 2020)

U.S. Sentencing Commission, Amendments to the Sentencing Guidelines (Preliminary) (April 5, 2023)

– Thomas L. Root

Guideline Amendments Adopted in Contentious USSG Love-fest – Update for April 6, 2023

Leave a comment

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

SENTENCING COMMISSION ADOPTS AMENDMENTS

USSC170511The U.S. Sentencing Commission yesterday adopted proposed amendments to the Federal Sentencing Guidelines for the first time in five years, with the new “compassionate release” guidelines consuming much of the meeting and generating sharp (but collegial) disagreement.

The “compassionate release” Guideline, USSG § 1B1.13, was approved on a 4-3 vote. It updates and expands the criteria for what can qualify as “extraordinary and compelling reasons” to grant compassionate release – the language in 18 USC § 3582(c)(1)(A) – and it will give judges both more discretion and more guidance to determine when a sentence reduction is warranted.

The new categories that could make an inmate eligible for compassionate release include

• if the prisoner is suffering from a medical condition that requires long-term or specialized medical care not being provided by the BOP and without which he or she is at risk of serious deterioration in health or death.

• if the prisoner is housed at a prison affected or at imminent risk of being affected by (an ongoing outbreak of infectious disease or an ongoing public health emergency declared by the appropriate federal, state, or local authority, and due to personal health risk factors and custodial status, he or she is at increased risk of suffering “severe medical complications or death as a result of exposure” to the outbreak.

• if the prisoner’s parent is incapacitated and the prisoner would be the only available caregiver.

• if the prisoner establishes that similar family circumstances exist involving any other immediate family member or someone whose relationship with the prisoner is similar in kind to that of an immediate family member when the prisoner would be the only available caregiver.

• if the prisoner becomes the victim of sexual assault by a corrections officer.

• if a prisoner received an unusually long sentence and has served at least 10 years of the term of imprisonment, changes in the law (other than to the Guidelines) may be considered in determining whether an extraordinary and compelling reason exists, but only where such change would produce a gross disparity between the sentence being served and the sentence likely to be imposed at the time the motion is filed.

The amendments also provide that while rehabilitation is not, by itself, an extraordinary and compelling reason, it may be considered in combination with other circumstances.

compassion160208Three of the seven-member Commission disagreed sharply with the “unusually long sentence” amendment. Commissioner Candice C. Wong said, “Today’s amendment allows compassionate release to be the vehicle for applying retroactively the very reductions that Congress has said by statute should not apply retroactively.”

Commissioner Claira Boom Horn, who is a sitting US District Court Judge in Kentucky, observed that “nothing in the First Step Act – literally nothing, not text, not legislative history – indicates any intention on Congress’s part to expand the substantive criteria for granting compassionate release, much less to fundamentally change the nature of compassionate release to encompass for the first time factors other than the defendant’s personal or family circumstances. The Supreme Court tells us that Congress does not hide elephants in mouseholes and it did not do so here.”

Commissioner Claire McCusker Murray said, “The seismic expansion of compassionate release promulgated today not only saddles judges with the task of interpreting a free will catch-all but also ensures a flood of motions, a flood that will then repeat anytime there is a nonretroactive change in the law. For the past several years, while the Commission lacked a quorum to implement the First Step Act, the country has experienced a natural experiment in what happens when judges have no operative guidance as to the criteria they should apply in deciding release motions. The result has been widespread disparities. In Fiscal Year 2022, for example, the most generous circuit granted 35% of compassionate release motions, the most cautious granted only 2.5%. The disparities within circuits and even within courthouses were often just as stark. We fear that with today’s dramatic vague and ultimately unlawful expansion of compassionate release that we… will expect far more of the same.”

Commissioner John Gleeson, a retired US District Court judge and Wall Street law firm partner, disagreed: “[The amendment’s] common sense guidance is fully consistent with separation of powers principles, our authority as the Sentencing Commission, and with the First Step Act. Most importantly, it will ensure that § 3582(c)(1)(A) of Title 18 of the United States Code serves one of the purposes Congress explicitly intended it to serve when that law is enacted almost 40 years ago: to provide a needed transparent judicial second look at unusually long sentences that in fairness should be reduced.”

noteasycongress221212Congress may veto one or more of the Guidelines proposals between now and November 1, 2023. That has only once before, when Congress voted down a guideline lessening the crack/cocaine disparity in 2005. Congress is pretty busy, and both the Senate and House are pretty evenly split politically, but the extent of the disagreement at the Commission gives cause for concern. If Congress does veto, it is unclear whether would focus solely on the “unusually long sentence” subsection of new § 1B1.13, or whether the entire amended Guideline would be jettisoned.

In other action, the Commission had been considering an amendment that prohibited courts from imposing longer sentences based on alleged crimes of which a defendant had been acquitted. Commission Chairman Carleton Reeves, a federal district judge from the Southern District of Mississippi, said the Commission needs more time before making a final determination on the issue.

Reuters reported that Michael P. Heiskell, President-Elect of the National Association of Criminal Defense Lawyers, said he was disappointed by the delay. “Permitting people to be sentenced based on conduct for which a jury has acquitted them is fundamentally unfair because it eviscerates the constitutional right to trial and disrespects the jury’s role,” he said in a statement.

However, the Commission’s delay may rejuvenate the McClinton v. United States petition for certiorari, which the Supreme Court has been sitting on at the suggestion of the Dept of Justice, awaiting Sentencing Commission action on acquitted conduct. A Supreme Court decision that use of acquitted conduct in sentencing is unconstitutional would benefit many more people than would a prospective Guidelines change.

The USSC also adopted a criminal history amendment that eliminates “status points” (sometimes called “recency points”) – additional criminal history points assessed if the defendant committed the current crime within two years of release for a prior crime – and grants a 2-level downward adjustment to a defendant’s offense level if he or she had zero criminal history points and met other criteria.

The Commission also approved an amendment to criminal history commentary advising judges to treat prior marijuana possession offenses more leniently in the criminal history calculus, making downward adjustments for offenses now seen as lawful by many states.

The proposal doesn’t seek to remove marijuana convictions as a criminal history factor entirely, but it would revise commentary within the guidelines to “include sentences resulting from possession of marihuana offenses as an example of when a downward departure from the defendant’s criminal history may be warranted,” according to a synopsis.

usscretro230406None of the Guidelines changes is retroactive without specific Commission determination that they should be. The USSC yesterday issued a notice that it will consider, pursuant to 18 USC § 3582(c)(2) and 28 USC § 994(u), whether Guidelines changes on “status points” and the “zero criminal history points” adjustment should be retroactive, and ask for public comment on the matter.

Although the Guidelines amendments do not become effective until November, most federal circuits have declared that – while the current § 1B1.13 is not binding on district courts because it is pre-First Step – courts should consider it to express the opinion of an agency expert in sentencing. The amended § 1B1.13 has every bit of the authority that the current non-binding § 1B1.13 has, and it has the additional benefit of being evidence of current Sentencing Commission thought.

USSC, Adopted Amendments (Effective November 1, 2023) (April 5, 2023)

USSC, Issue For Comment On Retroactivity Of Criminal History Amendment (April 5, 2023)

Reuters, U.S. panel votes to expand compassionate release for prisoners (April 5, 2023)

Marijuana Moment, Federal Sentencing Commission Approves New Marijuana Guidelines For Judges To Treat Past Convictions More Leniently (April 5, 2023)

– Thomas L. Root

A Mea Culpa and A Chocolate Bunny – Update for March 31, 2023

Leave a comment

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

EASTER BUNNY DROPS OFF ROTTEN EGGS FOR ME, BUT IT’S THE BOP’S RESPONSE THAT REALLY SMELLS

rotteneggs230331In LISA’s February 28th installment, The Easter Bunny’s Working for the BOP, I noted a New York Times report about the Federal Bureau of Prison’s promise, in the wake of sexual abuse of female inmates by BOP staff at FCI Dublin (California) and elsewhere, to favorably consider bringing sentence reduction motions for victimized inmates.

In one of the first tests of that promise, the Times reported the BOP general counsel denied a compassionate release application filed by a middle-aged female inmate who claimed the sexual abuse she suffered from BOP personnel justified the grant of a sentence reduction.

The Times said that BOP officials familiar with the case privately admitted that they did not dispute her allegations and thought her release would not pose a public safety threat.

Somehow, I made it less than clear that the BOP thought the inmate would not pose a danger to the public. In fact, I dropped the word “not” from the reports, making it seem that the BOP saw her as a danger.

(Don’t bother to look at the old post. I fixed it).

gutenberg230331Back in journalism school (around the time Gutenberg invented the press), I learned that when a defendant was acquitted, one should always write that he or she was “found innocent.” Literally, a jury does not find a defendant innocent, but rather “not guilty.” However, the imprecision was deemed acceptable, because to use the more accurate “not guilty” ran the risk that the word “not” might be dropped in error, opening the newspaper to a libel suit.

I always thought that the risk of that was pretty slim. Now I know better, and I am chagrinned at the error.

I’m embarrassed, but not as much as the BOP should be. What the BOP’s decision on this inmate means is that it had absolutely no reason for denying the inmate’s request that it bring a compassionate release motion on her behalf, except for the BOP’s belief that while she suffered at the hands of BOP employees, her suffering just wasn’t bad enough for the BOP to acknowledge.

So exactly how bad does the abuse have to be before the BOP figures some atonement is called for?

Incidentally, last week former FCI Dublin Warden Ray Garcia was sentenced to 70 months on multiple counts of sexual abuse of female inmates, and Jose Viera, a CO at MDC Los Angeles, got 120 months in federal prison for deprivation of rights under color of law arising from his sexual abuse of a female detainee. BOP Director Colette Peters said last Thursday that “to the victims and all negatively impacted by these offenses, be assured, we will continue our commitment to rooting out this criminal behavior and holding those who violate their oath accountable.”

chocobunny230330The BOP has an interest in locking up employees who sexually abuse inmates. Notably, Director Peters mentioned nothing about any BOP concern for the impact of that conduct on the victims.  After all they’re just inmates.  Or, to use Ms. Peters’s expression, “adults in custody.”

I regret my error in the original story, and I owe the inmate the best pickings from my Easter basket (if I get one). Sadly, if I could give her no more than a couple of jelly beans and a chocolate bunny, it would still be more than she can expect from the BOP.

The New York Times, Justice Dept Struggles to Carry Out Early Release Program for Abused Inmates (February 22, 2023)

DOJ, Former Bureau of Prisons Corrections Officer Sentenced to 10 Years in Federal Prison for Sexually Assaulting Inmate in Los Angeles Jail (March 20, 2023)

BOP, Statement regarding the sentencing of Ray J. Garcia (March 23, 2023)

– Thomas L. Root

U.S. Sentencing Commission’s In A Hurry to Get Things Done – Update for March 27, 2023

Leave a comment

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

SENTENCING COMMISSION ROCKET DOCKET

rocket190620Showing that a federal prisoner has an ‘extraordinary and compelling’ reason for grant of compassionate release is critical to getting a sentence reduction grant under 18 USC § 3582(c)(1)(A). That statute also requires that any grant be consistent with “applicable policy statements” of the U.S. Sentencing Commission.

This is where it’s been sticky. The USSC has one policy statement (USSG § 1B1.13) addressing compassionate release, adopted well before the compassionate release statute was changed by the First Step Act. The same month Congress passed First Step (December 2018), the USSC lost its quorum as multiple members’ terms expired. President Trump nominated some new members a few months later, but the Senate did not approve them. That condition lasted until last spring, when President Biden nominated a complete slate of new members.

USSC2300327Without a quorum, the USSC could not modify § 1B1.13 to account for the changes that First Step made in the § 3582(c)(1)(A). Almost all courts responded by holding that the old § 1B1.13 was no longer an “applicable policy statement” and thus didn’t bind the courts. In a way, that was liberating to the people filing compassionate release motions, because courts were freed from § 1B1.13’s restrictive definition of what constituted “extraordinary and compelling” reasons.

But without a USSC policy statement moderating district court responses, compassionate release grants since 2019 have been characterized by wide disparity. In Oregon, for instance, about 62% of compassionate release filings have been granted. In the Middle District of Georgia, on the other hand, only about 1.5% have been granted.

The new USSC said last its top priority was to amend § 1B1.13, and in January, the Commission issued a draft § 1B1.13 for public comment that contained some very prisoner-friendly proposals and options. The proposed change was part of an extensive set of draft Guidelines amendments that spanned more than a hundred pages of text. The public comment period ended two weeks ago, with over 1,600 pages of comments filed on the compassionate release proposal alone.

The USSC usually rolls out its proposal Guidelines amendments by May 1st. Under 28 USC § 994(p), the amendments go to Congress, which then has 180 days to reject them. If Congress does nothing (which is almost always the case), the changes become effective.

Iminahurry230327But this new USSC is in a hurry to get things done. Last week, the Commission announced an April 5 meeting at which the final § 1B1.13 (and all of the other draft proposed amendments) will be adopted.

If the amendment package goes to Congress that same day, they could become effective as early as Monday, Oct 2nd.

USSC, Public Meeting – April 5, 2023 (March 24, 2023)

– Thomas L. Root

7th’s Lack of Compassion is Disturbing – Update for March 21, 2023

Leave a comment

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

7TH CIRCUIT ISSUES DOUBLE-BARRELED COMPASSIONATE RELEASE DENIALS

Nuthin Times Nuthin May Be More Than Nuthin’: Stanley Vaughn, who is doing consecutive 240- and 262-month sentences, moved for compassionate release because of COVID-19 and his record of programming. He also argued that due to decisions issued since his conviction, he could not receive nearly as high a sentence if he was convicted today.

vadercompassion230321Last week, the 7th Circuit affirmed a district court denial of his compassionate release motion. Holding that “COVID-19 has been a fact of life for more than three years,” the 7th observed that “for prisoners who have received a vaccine, the risk of serious complications should they develop a breakthrough infection is modest. Vaughn has not provided or pointed to any medical data suggesting that his combination of conditions puts him at serious risk should he develop a breakthrough infection.”

Stan’s argument about completing classes left the appeals court equally unimpressed: “Taking classes while incarcerated is common rather than extraordinary. If data showed that completion of particular classes reliably put prisoners on the path to a law-abiding life, that might satisfy the statutory requirement, but Vaughn has not supplied any information along these lines.”

The Circuit may as well demand that Vaughn prove that the sun will rise in the east tomorrow.  From Congressional findings underpinning the First Step Act to the most current Dept of Justice reports on the effectiveness of the Act, evidence shows that the more evidence-based recidivism reduction classes a prisoner completes and the lower his or her recidivism score, the less likely he or she is to return to prison.

FSATable230320

After reducing Stan’s programming achievements to an asterisk,  the Circuit ruled that his career offender classification and not a statutory minimum drove the 262-month sentence. Stan’s reliance on United States v. Ruth, was misplaced, the Circuit said., and does not affect the career-offender calculation. “At all events,” the 7th noted, “we have held that Ruth does not justify compassionate release as an indirect means to achieve retroactive application of that decision.”

An interesting aspect of the ruling is the Circuit’s endorsement that individual reasons may be aggregated to meet the “extraordinary and compelling” standard for compassionate release: “If we conceive of ‘extraordinary and compelling reasons’ as those differentiating one prisoner’s situation from 99% of other prisoners, it is easy to see how Circumstance X could be true of only 10% of prisoners, Circumstance Y of 10%, and Circumstance Z of 10% – each insufficient to meet the threshold, but if they are independent then collectively enough to place the applicant among only 0.1% of all federal prisoners… Our point… is that no matter how the threshold is defined, a combination of factors may move any given prisoner past it, even if one factor alone does not.”

Despite this holding, the Circuit concluded that however you stacked Stan’s reasons, they fell short.

Legal Error Is Neither Extraordinary Nor Compelling: Leonard Williams filed for compassionate release because a district court treated him as having a prior conviction for unlawful drug delivery, which increased his minimum sentence to 10 years. But United States v. Ruth held that his conviction for delivery of cocaine in Illinois does not satisfy the criteria of a “serious drug felony” under 21 USC § 841(b)(1)(B), meaning his sentence was longer than the law required.

Last week, the 7th Circuit said ‘so what?’

extraordinaryerror230321“As we put it in Von Vader,” the 7th said, “the sort of ‘extraordinary and compelling’ circumstance that § 3582(c)(1) addresses is some new fact about an inmate’s health or family status, or an equivalent post-conviction development, not a purely legal contention for which statutes specify other avenues of relief—avenues with distinct requirements, such as the time limits in § 2255(f) or the need for a declaration by the Sentencing Commission that a revision to a Guideline applies retroactively… There’s nothing ‘extraordinary’ about a legal error by a district court (or a court of appeals), and the law provides methods other than compassionate release for dealing with claims of legal error.”

United States v. Vaughn, Case No. 22-2427, 2023 U.S.App. LEXIS 6171 (7th Cir., March 15, 2023)

United States v. Williams, Case No. 22-1981, 2023 U.S.App. LEXIS 5877 (7th Cir., March 13, 2023)

– Thomas L. Root

Here Comes the Easter Bunny – Update for February 28, 2023

Leave a comment

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

THE EASTER BUNNY’S WORKING FOR THE BOP


bunny230228I still get asked several times a week about the persistent rumor that the Bureau of Prisons or Joe Biden or Congress or someone is going to give every inmate a time cut because incarceration during COVID was so miserable.

The “someone” is probably the Easter Bunny. I hear that the BOP would be asking the EB to deliver the time cut to every inmate in a nice basket with green plastic grass, jelly beans and a big chocolate rabbit.  Except the BOP cannot…

Because there ain’t no Easter Bunny. And there ain’t no COVID time cut, either. Such a cut has never been proposed, never been debated, and is never happening.

Harder to believe than the part about the Easter Bunny is the part about the BOP having any compassion for inmates… and that includes inmates who have been sexually assaulted by the BOP’s own employees. The New York Times reported last Wednesday that the BOP has rejected the first inmate request that it recommend compassionate release because she had been sexually abused by male employees at FCI Dublin. The reason is sobering.

forcedsex161202Last fall, Deputy Attorney General Lisa O. Monaco pressed BOP officials to encourage inmates who have been assaulted by prison employees and might qualify for compassionate release program to apply. Monaco told FAMM that she had ordered the new BOP Director Colette S. Peters, to “review whether BOP’s policy regarding compassionate release should be modified to accommodate female prisoners who had been assaulted by federal employees,” according to the Times.

Ms. Peters has said she has begun to consider requests from inmates who have been abused and are not deemed to be threats to the community if they are granted their release.

In late January, the BOP general counsel denied an application filed by a middle-aged woman who claimed her experience made her eligible for compassionate release. She is among a number of women who have detailed pervasive misconduct during their incarceration. This case – “the first of its kind to make its way through the system — is seen by prisoners’ rights groups as a key test of the department’s commitment to use so-called compassionate release protocols for victims of abuse,” the Times said.

The Times quoted the BOP general counsel as acknowledging that the inmate’s “assertions of being groped and forced to disrobe by male staff members were ‘extremely concerning,’ but described her documentation of those claims as insufficient.”

The Times said that BOP officials familiar with the case have privately said they do not dispute her allegations and think the inmate’s release would not pose a public safety threat.

easterbunny230228The BOP characterized the rejection as “temporary.” The Times said the rejection “reflect[s] a broader struggle by the Justice Department to free inmates abused in federal custody, when appropriate.” 

No doubt the Easter Bunny will be bringing the inmate her approval with the jelly beans.  Except that there is no Easter Bunny. 

New York Times, Justice Dept. Struggles to Carry Out Early Release Program for Abused Inmates (February 22, 2023)

– Thomas L. Root

7th Circuit Finds the Jurisdictional ‘Force’ Is With This One – Update for February 3, 2023

Leave a comment

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

COURT DOESN’T LACK JURISDICTION JUST BECAUSE YOU MIGHT LOSE

Wolfgang Von Vader had some run-ins that resulted in a 2000 conviction in the Western District of Wisconsin for distributing methamphetamine (a Guidelines “career offender” 270-month sentence) and a 2012 federal conviction in Kansas for possessing heroin in prison (a 120-month consecutive sentence).

jurisdiction180410Wolf applied for 18 USC § 3582(c)(1)(A) compassionate release in both Kansas and Wisconsin. Both courts shot him down. The Kansas decision is currently on appeal in the 10th Circuit. In the Wisconsin case, the government argued that the court lacked jurisdiction to consider Wolf‘s compassionate release motion because he had already served all of his 2000 Wisconsin sentence, and is now on his consecutive 2012 Kansas sentence. Section 3582(c) does not authorize release from an expired sentence, the government contended, which makes Wolf’s Wisconsin compassionate release motion moot.

The district court agreed, and dismissed Wolf’s motion for lack of jurisdiction.

Last week, the 7th Circuit disagreed, reversing Wolf’s dismissal. Maybe a retroactive reduction is unauthorized by statute, the Circuit said, “but we do not see how this moots [Von Vader’s] request. If § 3582(c) does not supply authority for the relief Von Vader wants, then he loses on the merits, not for lack of jurisdiction.”

vader230203“The judge in Wisconsin could order the Bureau of Prisons to treat the Wisconsin sentence as if it had expired earlier and to reduce the time remaining on the Kansas sentence accordingly,” the 7th ruled. “Or the court in Wisconsin could make an adjustment in the length of supervised release, on the Wisconsin sentence, tht will follow the conclusion of the Kansas sentence. As long as relief is possible in principle, the fact that a given request may fail on statutory grounds does not defeat the existence of an Article III case or controversy.”

United States v. Von Vader, Case No 22-1798, 2023 U.S.App. LEXIS 1750 (7th Cir., January 24, 2023)

– Thomas L. Root

The Short Rocket – Update for January 27, 2023

Leave a comment

rocket190620We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

Today, the short rocket – decisions from around the federal circuits…

SOME CASE SHORTS

Timing is Everything: In 2015, Benny Hall pled guilty to conspiracy to commit Hobbs Act robbery and using a gun in a crime of violence, (an 18 U.S.C. § 924(c) offense). After the Supreme Court decided in United States v. Davis that conspiracy to commit a crime of violence was not itself a crime of violence that supported a § 924(c) conviction for using a gun in a crime of violence, Benny filed a 28 U.S.C. §2255 post-conviction motion asking that the § 924(c) be thrown out.

corso170112The government convinced the district court that Benny’s § 924(c) conviction didn’t depend only on the conspiracy, but also on his admissions in open court that established that he had actually attempted to commit the robbery.

‘Gotcha!’ the government cried.

‘Not so fast!’ the 2nd Circuit replied last week. Last summer, the  Supreme Court ruled in United States v. Taylor that an attempted Hobbs Act robbery is not a crime of violence. The Circuit threw out § 924(c) conviction and the mandatory 10-year add-on sentence it represented.

Hall v. United States, Case No 17-1513, 2023 U.S.App. LEXIS 1256 (2d Cir., January 19, 2023)
rocket190620

11th Holds Drug Conspiracy Can’t Lead to Guidelines ‘Career Offender’: Brandon Dupree was convicted of a 21 U.S.C. § 846 drug conspiracy, and was hammered at sentencing as a Guidelines “career offender” (which dramatically increased the advisory sentencing range). An 11th Circuit panel rejected Brandon’s argument that an inchoate offense (that is, a mere plan to commit a crime) does not qualify as a “controlled substance offense” for purposes of the Guidelines ‘career offender’ enhancement.

brandon230127Last week, the full Circuit sitting en banc said, ‘Let’s go, Brandon,’ and reversed his ‘career offender’ sentence. The 11th ruled that “application of the enhancement turns on whether the ‘instant offense of conviction’ is ‘a controlled substance offense’ [under USSG] 4B1.1(a)… The plain text of 4B1.2(b) unambiguously excludes inchoate crimes. Dupree must be resentenced without application of the career offender enhancement.”

United States v. Dupree, Case No 19-13776, 2023 U.S.App. LEXIS 1183 (11th Cir., January 18, 2023)
rocket190620

Channeling Your Inner Habeas: People are always asking why they can’t point out in their 18 U.S.C. § 3582(c)(1)(A) compassionate release motions that their sentences were wrongly calculated, that their lawyers were ineffective imbeciles, that something was very wrong with how they were convicted.

reallawyer170216Mike Escajeda was convicted of selling drugs and carrying a gun. After losing his direct appeal, Mike filed a compassionate release motion, arguing that the “extraordinary and compelling reasons” required by an 18 U.S.C. § 3582(c)(1)(A) compassionate release motion were that (1) his sentence exceeded the statutory maximum and (2) he received ineffective assistance of counsel. He even admitted in his motion that he had filed for compassionate release because he figured that he could not win relief under § 2255.

Last week, the 5th Circuit ruled that the habeas-channeling rule prevented Mike from raising 2255-type issues in a compassionate release motion. The Circuit said, “Congress provided specific avenues for post-conviction relief that permit prisoners to challenge the legality of their confinement in federal court… The Supreme Court has repeatedly held that by codifying these specific provisions, Congress required prisoners to bring their legality-of-custody challenges under [28 USC 2241, 2244, 2254, and 2255], and prohibited prisoners from bringing such claims under other, more-general statutes like 42 U.S.C. § 1983.

[A] prisoner cannot use § 3582(c) to challenge the legality or the duration of his sentence,” the 5th held. “Such arguments can, and hence must, be raised under [the habeas statutes]… Because Escajeda’s claims would have been cognizable under § 2255, they are not cognizable under § 3582(c).”

United States v. Escajeda, Case No 21-50870, 2023 U.S.App. LEXIS 1041 (5th Cir., January 17, 2023)
rocket190620

DOJ SORNA Rule Blocked: The U.S. District Court for Central District of California last week issued a preliminary injunction blocking the Dept of Justice’s new Sex Offender Registration and Notification Act rule because it violated due process and the 1st Amendment.

injunction230127The rule requires people who had been convicted of a sex crime to register as sex offenders in their state, even if the sex crime convictions have been expunged and the people are not allowed by the state to register. Because plaintiff John Doe could not register, the DOJ’s rule said that he could be prosecuted at any time, and he would have been forced to prove that registration was impossible — “an affirmative defense,” Doe’s lawyer said, “that turns the presumption of innocence on its head.

The court ruled that it was likely an unconstitutional violation of due process to require anyone to affirmatively prove his innocence when he had never been convicted.

Preliminary injunction, ECF 55, Doe v. DOJ, Case No 5:22-cv-855 (CD Cal., Jan 13, 2023)

Reason, A Federal Judge Says the DOJ’s Sex Offender Registration Rules Violate Due Process by Requiring the Impossible (January 19, 2023)

– Thomas L. Root

The Sentence That Was Right Then Might Not be Right Now, 4th Circuit Says – Update for January 20, 2023

Leave a comment

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

CONSIDER 3553(a) IN LIGHT OF REASONS FOR COMPASSIONATE RELEASE, 4TH CIRCUIT SAYS

Back in 2008, Mike Mangarella was convicted of a massive sweepstakes fraud and was sentenced to 600 months. Twelve years later, Mike – old and sick and in the middle of a COVID pandemic – moved for compassionate release.

compassion160208The district court agreed that Mike’s COVID concerns were extraordinary and compelling reasons for a sentence reduction. But the judge was miffed that the Assistant U.S. Attorney agreed with Mike that the 18 U.S.C. § 3553(a) sentencing factors favored his compassionate release, complaining that the “government had failed to explain why – disregarding COVID-19 – the same § 3553(a) factors that originally supported a 30-year sentence now pointed to a sentence of only 14 years.” The judge told the government to “focus on the § 3553(a) factors without reference to COVID-19.”

(For those just joining us, under 18 U.S.C. § 3582(c)(1)(A), a district court considering a compassionate release sentence reduction motion must “consider[] the factors set forth in section 3553(a) to the extent that they are applicable.” Those factors are the standards a court must consider in imposing a criminal sentence, such as the history of the offender and nature of the crime, need for deterrence, what punishment is “just,” protection of the public, and so on.  It is what constitutes “considering” that is at issue here.)

tea160404After the district court’s scolding, the government read the tea leaves and quickly changed its position. The district judge then held that – even assuming that Mike’s reasons were “extraordinary and compelling” – his compassionate release motion should be denied based on the § 3553(a) sentencing factors.

Last week, the 4th Circuit vacated the decision and sent it back to the district court. The Circuit said it was not satisfied that the district court, in weighing the § 3553(a) factors, considered Mike’s “principal argument — originally joined by the government — for why those factors no longer warranted a 30-year sentence: that given his particular risk profile with respect to COVID-19, his prison sentence now carried with it a significant chance of a life-threatening illness.”

The record from Mike’s district court suggested that the judge decided that if 50 years was the right sentence in 2008, it must automatically continue to be the right sentence 14 years later. But the § 3553(a) factors in a compassionate release motion “must account not only for the circumstances at the time of the original offense but also for significant post-sentencing developments.” The Circuit specifically cited Chief Judge Gregory’s concurrence in United States v. Kibble that “there is good reason to believe that, in some cases, a sentence that was ‘sufficient but not greater than necessary’ before the coronavirus pandemic may no longer meet that criteria.”

The holding underscores that § 3553(a) sentencing factors must be considered in light of the “extraordinary and compelling” reasons for compassionate release, not in a vacuum (as many district courts have done up to now).

United States v. Mangarella, Case No 20-7912, 2023 U.S. App. LEXIS 518 (4th Cir., January 10, 2023)

– Thomas L. Root

New Day Dawning for Compassionate Release? – Update for January 17, 2023

Leave a comment

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

SENTENCING COMMISSION ISSUES DRAFT COMPASSIONATE RELEASE AMENDMENTS

USSCvanwinkle230117For the first time in five years, the U.S. Sentencing Commission last week issued draft Guidelines amendments that – after public comment and a 6-month Congressional review period – will become effective in November.

The USSC’s draft amendments cover everything from the drug safety valve to extra points off for defendants with a zero criminal history score to tougher guideline numbers for gun straw purchasers. But these draft changes are of lesser interest to prisoners because nothing the Commission changes in the guidelines is retroactive unless the USSC goes through a separate amendment process to make it so.

The last time that happened was the “drug-minus-two” change in 2014. Whether any of the sentencing changes the USSC issued in draft form last week will ever make the retroactivity cut is not yet clear.

The compassionate release policy statement that the USSC rolled out, however, will have applicability for people already serving a sentence. The Guidelines applied at sentencing have been advisory for the past 18 years, but the Commission’s compassionate release policy, USSG § 1B1.13, is not: under 18 USC § 3582(c)(1)(A) – the  “compassionate release” provision of the sentencing statute – a district court must ensure any sentence reduction decision “is consistent with applicable policy statements issued by the Sentencing Commission.”
compassionlimit230117The existing compassionate release policy was written before the First Step Act passed, for an era in which only the Bureau of Prisons could bring a compassionate release motion on behalf of an inmate. Since First Step passed, most (but not all) circuit courts have ruled that § 1B1.13 is not binding because it had not been amended to include First Step changes. While that freed district courts to grant compassionate release in circumstances other than the few listed in the old § 1B1.13, it wasn’t all good.

“Commission data have indicated that in recent years — over the COVID-19 pandemic and without a Commission quorum — the district courts have granted compassionate release at varying rates,” US District Court Judge Carlton W. Reeves, Commission chairman, said at last week’s USSC meeting. “It is my sincere hope that our work… brings greater clarity to the federal courts and more uniform application of compassionate release across the country.”

According to the USSC, people in Oregon had a 62% chance of getting a compassionate release grant. People in the Middle District of Georgia had a 1.5% chance. Giving federal judges the freedom to define for themselves what justifies a sentence reduction is a great thing when it frees the jurists from unreasonably strict limitations. It’s not so great when defendants with similar histories and offenses are treated dramatically differently due to an accident of geography.

The draft § 1B1.13 amendments propose additions to circumstances justifying compassionate release that include “medical conditions that require long-term or specialized medical care, without which the defendant is at risk of serious deterioration in health or death, that are not being provided in a timely or adequate manner; risk of being affected by a disease outbreak in prison for which the defendant is at increased risk of suffering severe medical complications or death; the incapacitation of the defendant’s parent when the defendant would be the only available caregiver; the defendant has been the victim of sexual assault or physical committed by a BOP employee or contractor; or “the defendant is serving a sentence that is inequitable in light of changes in the law.”

compassion160208The proposal also suggests a “catch-all” provision that “the defendant presents an extraordinary and compelling reason other than, or in combination with” the other circumstances the Commission has proposed for the beefed-up  § 1B1.13. 

The USSC draft proposals also include a provision to amend § 1B1.3 the “relevant conduct’ provision that tends to run up sentencing ranges, “to add a new subsection (c) providing that acquitted conduct shall not be considered relevant conduct for purposes of determining the guideline range unless the conduct was admitted by the defendant during a guilty plea colloquy or was found by the trier of fact beyond a reasonable doubt to establish, in whole or in part, the instant offense of conviction.” As noted, no one at this point knows whether this might become retroactive in the future.

Reuters, U.S. panel proposes limiting sentencing of defendants for acquitted conduct (January 12, 2023)

USSC, US Sentencing Commission Seeks Comment on Proposed Revisions to Compassionate Release, Increase in Firearms Penalties (January 12, 2023)

USSC, Proposed Amendments to the Sentencing Guidelines (Preliminary) (January 12, 2023)

Sentencing Law and Policy, US Sentencing Commissions publishes proposed guideline amendments and issues for comment (January 12, 2023)

– Thomas L. Root