Tag Archives: criminal history

Neither More Nor Less Compassion, Sentencing Commission Reports – Update for October 24, 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.

COMPASSIONATE RELEASE GRANT RATES HOLD STEADY

The U.S. Sentencing Commission’s Fiscal Year 2024 preliminary data on compassionate release motions filed pursuant to 18 USC § 3582(c)(1)(A), released last week, show that for the fiscal year ending September 30, 2024, the national rate for grants of such motions (out of a total of 2,901 ruled on) was 16.1%.

compassion160208This number represents an improvement over FY 2023 (13.8% of 3,140) and a very slight improvement over the cumulative average of the 15.9% grant rate since the First Step Act – which gave prisoners the right to file their own motions instead of limiting such filings to the whims of the Federal Bureau of Prisons – became law in December 2018.

Significant numbers of compassionate release motions only began to be filed when COVID-19 struck in late March 2020. Grant rates started out at 35% in April 2020, but fell to a 16.9% average by the end of that year.

The latest data show that in FY 2024, drug offenders got 55% of the compassionate release grants, followed by robbery offenders (14 %). People with Criminal History VI  – the most serious criminal history category – received 37% of the grants, followed by those with the best criminal histories, Criminal History I, with 23%.

funwithnumbers170511The Commission also reported that of 12,366 USSG Amendment 821 Part A movants – seeking a lower sentence because they previously had a higher Criminal History Category for being on probation, parole or supervised release when they committed their current offense (“status-point” offenders) – 35.9% have been granted. Of the 9,649 USSG Amendment 821 Part B movants seeking a lower sentence because they had absolutely no prior criminal offenses (zero criminal history points), 30.9 pct have been granted.

For status-point offenders, 44.9% had drug charges and 24.7% had firearms offenses. For zero-point movants, 78.6% are doing time for drugs, with fraud offenses in second place at 10.2%.

USSC, Compassionate Release Data Report (Preliminary FY 2024 Cumulative Data) (October 17, 2024)

USSC, Part A of the 2023 Criminal History Amendment Retroactivity Data Report (October 17, 2024)

USSC, Part B of the 2023 Criminal History Amendment Retroactivity Data Report (October 17, 2024)

– Thomas L. Root

Feb 1’s Here… Let the Prisoners Go! – Update for February 1, 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.

RUMOR CONTROL 101: WHAT HAPPENS ON FEBRUARY 1? (HINT: NOTHING)

nothinghere190906My inbox has been flooded in the last few weeks with people wondering what all will happen today, Thursday, February 1st. One said changes in the gun laws will go into effect. Another heard that the meth laws will change. Another explained that all criminal history points from prior state convictions will be dropped from Guidelines criminal history. A fourth heard that acquitted conduct will be banned for sentencing purposes.

Yesterday, a prisoner complained that people were saying that effective today, FSA credits could be used by everyone, not just low- and minimum- recidivism level inmates. At least this last guy recognized that the rumor was bullshit on stilts, and responded with appropriate disgust.

The plain and sad fact is that NONE OF THESE RUMORS IS TRUE. NONE. ZERO. NADA. ZIP.

Congress is not changing the federal firearms statutes this year. With methamphetamine and fentanyl flowing across the border being a hot campaign issue, no one’s changing those laws, either. Congress can’t even approve a federal budget or aid to Ukraine and Israel, or a plan to stop the border crisis. Passing legislation that benefits a portion of the 160,000 federal prisoners is not on anyone’s radar.

True, the Sentencing Commission is considering what – if anything – to do with acquitted conduct, but any change in the Guidelines is not likely to be retroactive and is 10 months away at least. And the Supremes may cause real upheaval in the federal gun laws when Rahimi is decided in the next five months.

But nothing will happen today.

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However, tomorrow… On February 2, the Time Reduction Fairy will emerge from her den. If she sees her shadow, we’re in for another year of no criminal justice reform. The smart money, unfortunately, is that February 2 is going to be sunny.

– Thomas L. Root

Sentencing Commission Proposes Acquitted Conduct Sentencing Change – Update for December 18, 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.

MOVING RIGHT ALONG…

USSC170511Last Thursday the U.S. Sentencing Commission acted with uncharacteristic alacrity, adopting proposed amendments for the 2024 amendment cycle about a month earlier than has been typical over the past 30 years.

The Commission proposes seven changes in Guideline policy in a 755-page release, the most anticipated of which is the use of acquitted conduct at sentencing.

The Commission proposes adopting one of three acquitted conduct options:

Option 1 would amend § 1B1.3, the “relevant conduct” Guideline, to provide that acquitted conduct is not relevant conduct for determining the guideline range. It would define “acquitted conduct” as conduct constituting an element of a charge of which the defendant has been acquitted by the court, except for conduct establishing the instant offense that was “found by the trier of fact beyond a reasonable doubt.”

Option 2 would amend the § 1B1.3 Commentary to provide that a downward departure may be warranted if the use of acquitted conduct has a “disproportionate impact” on the guideline range.

Option 3 would amend USSG § 6A1.3 (which addresses the standard of proof required to resolve Guidelines disputes) to provide that while a “preponderance of the evidence” standard generally is sufficient, acquitted conduct should not be considered unless it is established by clear and convincing evidence.

acquitted230106The Supreme Court last June denied 13 petitions for writ of certiorari related to use of acquitted conduct in sentencing. Four Justices felt the Commission should first address the issue. US District Judge Carlton W. Reeves, chairman of the USSC, said, “When the Supreme Court tells us to address an issue, the Commission listens… [A]ll options are on the table.”

The USSC proposal also addresses counting juvenile convictions for criminal history. The Commission proposed changes that would limit the impact of those convictions on criminal history scoring and expand consideration of a defendant’s youth at sentencing.

One piece of bad news is the Commission’s proposal to undo the effects of the 2019 Supreme Court Kisor v. Willkie decision. A year ago, the 3rd Circuit relied on Kisor in United States v. Banks to hold that the loss enhancement under USSG § 2B1.1(b)(1) includes only what was actually lost. The Circuit reasoned that the word “intended” appears only in the 2B1.1 commentary and not in the Guideline itself, and thus “the loss enhancement in the Guideline’s application notes impermissibly expands the word ‘loss’ to include both intended loss and actual loss.”

Sentencing for “intended loss” is the fraud equivalent of “ghost dope“:  Often, “intended loss” is what the government says it is, and that figure shoots the Guidelines sentencing range to the moon.

Banks sparked a debate on how much deference to give the Sentencing Commission’s interpretation of its own Guidelines. The 3rd said the USSC lacked authority to use its commentary – which is not subject to Congressional approval before adoption – to expand the meaning of “loss” to include what was intended but did not happen.

loss210312The USSC now intends to short-circuit the Kisor v. Willkie debate (and to kneecap the Banks decision) by moving “intended loss” from the commentary into the text of 2B1.1. Because that amendment will be subject to a possible (but improbable) veto by Congress veto, the Kisor v. Willkie problem with 2B1.1 will melt as fast as snowflakes on a hot stove.

The USSC drew its proposed amendment from policy priorities adopted last August. Not making the final cut were policy priorities on career offender (and not for the first time) and methamphetamine.

The proposed amendments will be open for public comment period until February 22, 2024. A public hearing will occur after that. Final proposed amendments will be sent to Congress by May 1 to become effective next November 1, 2024.

USSC, Proposed Amendments to the Sentencing Guidelines (Preliminary) (December 14, 2023)

USSC, US Sentencing Commission seeks comment on proposals addressing the impact of acquitted conduct, youthful convictions, and other issues (December 14, 2023)

USSC, Public Hearing (December 14, 2023)

USSC, Federal Register Notice of Final 2023-2024 Priorities (August 24, 2023)

United States v. Banks, 55 F.4th 246 (3d Cir. 2022)

Bloomberg Law, Wall Street Fraudsters Rush to Cut Prison Terms With New Ruling (November 1, 2023)

– Thomas L. Root

USSC Retro Inquiry Gets a Boost – Update for May 26, 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.

SENTENCING COMMISSION ANALYZES EFFECT OF CRIMINAL HISTORY RETROACTIVITY

retro160110When it adopted proposed Guidelines amendments last month, the Sentencing Commission asked whether two of them – the new USSG § 4C1.1 that would provide a 2-level reduction to people with non-violent non-sex offenses with zero criminal points and the abandonment of extra criminal history points (called “status points”) applied to people who were on probation, parole or supervised release when they committed their current offense (and thus should have really known better) – should be retroactive.

Any change in the Sentencing Guidelines does not benefit people who have been sentenced before the change was effective unless the Sentencing Commission – in a separate proceeding – determines that the change should be retroactive. If it does, those already sentenced may petition their sentencing judges to resentence them as though the new Guideline applied to their sentence.

It doesn’t happen often: the last retroactive Guidelines change that was declared to be retroactive was the 2014 across-the-board 2-level reduction in the drug quantity tables of USSG § 2D1.1. That change, to pick an illustration, reduced the offense level of someone who sold a kilo of cocaine from 26 to 24. If the defendant had no prior criminal convictions and no other aggravating factors (such as stupidly having a gun), his or her advisory sentencing range would have dropped a year, from 63 to 51 months).

manyaslip230526There are many a slip ‘twixt cup and lip, of course: the Guidelines reduction must have reduced the sentencing range: a veteran criminal with the top level of criminal history and an offense level of 39 might see her level fall to 37, but the advisory sentencing range would still start at 360 months. And if all of the eligibility hurdles are crossed, the sentencing judge may still decide the defendant’s a bad dude and decline any reduction. But still, for those who are eligible, a Guidelines reduction that goes retroactive provides hope.

Currently, the Commission is taking public comment on the wisdom of letting people benefit from retroactivity of the very wise changes proposed for criminal history scoring. That comment period ends June 23. After that, the USSC will decide whether to add the § 4C1.1 amendment to the retroactivity list. If it does, Congress will get 6 months to decide whether to veto it.

If retroactivity is adopted and gets past Congress, prisoners will be able to apply for a reduction under 18 USC § 3582(c)(2) and USSG § 1B1.10 (the statute and guideline, respectively, that govern the process).

Two issues that always arise are whether the retroactivity would create a flood of court filings that would gum up the federal courts, and exactly how many people might benefit. Last week, the USSC staff issued a study that gives the retroactive argument a boost.

releaseme211231The staff estimated that 11,500 BOP prisoners with status points would have a lower guideline range if the abandonment of status points becomes retroactive. The current average sentence for that group is 120 months and would probably fall by an average of 14 months.

The report also figures that about 7,300 eligible prisoners with zero criminal history points would have a lower guideline range if the zero-point Guidelines change becomes effective. The current average sentence of 85 months could fall to an average of 70 months.

Writing in his Sentencing Law and Policy blog, Ohio State University law professor Doug Berman said, “Putting these particulars together in a very rough way, it seems that the USSC is estimating that just under 19,000 thousand current federal prisoners would be able to get just under 1.2 years off their sentences if these new criminal history amendments are made retroactive. That adds up to a total of about 23,000 prison years saved were these new guideline amendments made retroactive and these estimated impacts become reality.”

USSC, Retroactivity Impact Analysis of Parts A and B of the 2023 Criminal History Amendment (May 15, 2023)

Sentencing Law and Policy, US Sentencing Commission publishes detailed retroactivity analysis for its amendments to federal guidelines’ criminal history rules (May 15, 2023)

– Thomas L. Root

Guidelines Criminal History Changes To Benefit Some – Update for April 21, 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.

EXPLAINER: CRIMINAL HISTORY RETROACTIVITY

explain230420I don’t usually write this kind of thing, but I am getting a lot of questions about the possibly retroactive changes in the criminal history Guidelines.

Earlier this month, the United States Sentencing Commission proposed two Sentencing Guidelines changes benefitting people at both ends of the criminal history spectrum.  Because these changes might become retroactive, many prisoners wonder what might be in it for them.  So here goes:

A sentencing range for a Federal defendant is determined on a table found in Section 5 of the Sentencing Guidelines. A defendant’s offense level – specific to the offense of conviction and usually fortified with several enhancements for leadership, weapon, sophisticated planning and the like – is calculated.  Then, the court takes a dive into the defendant’s criminal history, assigning points to prior offenses depending on severity, status at the time of the offense, and the like.

Those two rankings are applied to the Sentencing Table, with the Total Offense Level being the ordinant and the Criminal History Category (from I to VI) being the abscissa.

zeropoints230420When Zero is Hero: Anyone with zero or one criminal history points falls in Criminal History I. But believing someone who absolutely no prior criminal history points is a special breed of virgin, the Commission has proposed USSG § 4C1.1. This Guideline would provide a 2-level decrease in the Total Offense Level for people with zero points.

Caution: the draft has more holes than a prairie dog village. The two-level decrease would only apply when the defendant did

(1) not receive any criminal history points;

(2) not receive a terrorism adjustment under 3A1.4;

(3) not use violence or threats of violence in the offense;

(4) not commit an offense resulting in death or serious bodily injury, or a sex offense;

(5) not personally cause substantial financial hardship;

(6) not possess of a gun or other dangerous weapon, or get someone else to do so);

(7) not commit an offense involving individual rights, a hate crime, or serious human rights offense); or

(8) not receive a USSG § 3B1.1 role adjustment and was not engaged in a 21 USC § 848 continuing criminal enterprise.

As an example, a defendant with no criminal history points who was convicted of selling a pound of cocaine might have a Total Offense Level of 22.  As a Criminal History Category I, she would have an advisory sentencing range of 41-51 months.  But if she had been a cheerleader and churchgoer before her unfortunate descent into drug-dealing – with zero prior criminal history points – her Total Offense Level would fall by two.  Her sentencing range would then be 33-41 months, not exactly probation, but eight months less is eight months less.

lesson230420Status Seekers:  The status point change is easier. Currently, § 4A1.1(d) of the Guidelines currently adds two criminal history points “if the defendant committed the instant offense while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status.”

Makes sense. Prison is supposed to teach inmates a lesson, which is (among othert things) ‘don’t break the law‘. Hitting recently-released people with extra status points because they didn’t read the memo (the one that said ‘go forth and break the law no more’). Nevertheless, the Commission has found that its research showed the status points have no effect

Now, the Guidelines will only add a single point if a defendant committed the instant offense while under any criminal justice sentence – including probation, parole, supervised release, imprisonment, work release, or escape status – and already has seven criminal history points before the status point is added.

retro160110Going Retro: The USSC has sought comment on whether it should make the key parts of its new criminal history amendment “available for retroactive application.” If it becomes retroactive and Congress does not veto the change, people who were “crim zeros” or who had status points could file for benefit probably starting in early 2024.

Just note that unless application of the Guidelines change reduces a defendant;s Guidelines sentencing range, he or she can get no benefit from it. Read up on Guideline § 1B1.10 for how this works.

USSC, Amendments to the Sentencing Guidelines (Preliminary) (April 5, 2023)

Sentencing Law and Policy, Highlighting US Sentencing Commission’s significant amendments to federal guidelines’ criminal history rules (April 9, 2023)

– Thomas L. Root

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

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

No Implied Limits on Remand Resentencing – Update for February 24, 2020

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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.

UNODIR (NOT UNICOR)

UNODIR is useful military slang meaning “unless I am directed otherwise.” It is a good way to report to your boss that you intend to take a certain action, and put it on him to tell you not to before you do. This is not to be confused with UNICOR – the catchy acronym by which Federal Prison Industries, Inc., is known – a place that pays inmates top dollar for the manufacturing of everything from body armor to award plaques to office products to… yeah, even license plates.

A federal defendant’s criminal history has a great influence on his or her federal sentence: the more skilled you are in the ways of criminal conduct, the thinking goes, the more substantial your sentence should be, in order to get your attention.

doasyouretold200224After one of Markell Hamilton’s prior state convictions was vacated by an Iowa court, the 8th Circuit remanded his case “for resentencing to allow the district court to determine whether the state conviction was appropriately included in his criminal history score.” When Mark tried to challenge some relevant conduct alleged in the presentence report, the district court refused, holding that the scope of resentencing was limited to the issue involving Mark’s previous Iowa conviction, and ultimately reimposed the same 81-month sentence.

Last week, the 8th Circuit remanded again, holding that the district court was not prohibited on remand from considering other issues, too. “On remand for resentencing,” the Circuit said, “a district court can hear any relevant evidence that it could have heard at the first hearing,” except for issues decided by the appellate court. “Where a remand is limited to the resolution of specific issues, those issues outside the scope of the remand are generally not available for consideration… But where a court of appeals vacates a sentence or reverses a finding related to sentencing and remands the case for resentencing without placing any limitations on the district court, the court can hear any relevant evidence… it could have heard at the first hearing.”

United States v. Hamilton, 2020 U.S. App. LEXIS 5034 (8th Cir. Feb. 19, 2020)

– Thomas L. Root

Counting Angels on Pins in the Guidelines – Update for July 26, 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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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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Sentencing Commission Issues Comprehensive Drug Recidivism Study – Update for February 23, 2017

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BUT I REPEAT MYSELF…

A 149-page report issued Tuesday by the U.S. Sentencing Commission offers a fascinating, data-filled glimpse into recidivism by federal drug offenders.

shawshank161117First, our criticism: the data are drawn from 10,000+ federal drug offenders who were either released or placed on probation during 2005. While a study on recidivism necessarily has to watch a cohort of people over a period of years, a lot has happened since 2005 that may change the accuracy of some of the findings.

For example, the study showed that among the 2005 releasees, methamphetamine offenses constituted just under 17% of all offenses. By 2015, about 31% of all drug offenders were methheads. The other concern is that all of the releasees would have been sentenced before United States v. Booker, and thus had mandatory Guidelines sentences. That leaves unanswered the question whether non-mandatory Guidelines sentences have a different influence on drug offender recidivism than did the old regime of mandatory Guidelines sentences.

offenderages170223But our concerns do not materially lessen the benefit that the Report’s wealth of data confers on the sentencing debate. The overall finding is sobering: over an 8-year period, one half of the 2005 group of federal drug trafficking were rearrested for a new crime or a violation of supervised release conditions.

Some other findings:

• Crack cocaine offenders had the highest rate (61%) of recidivism of any drug type, while powder cocaine offenders had the lowest rate (44%);

• The median time from release to the first recidivism event was 25 months;

• Nearly one-fourth (24%) of recidivist drug trafficking offenders had assault as their most serious new charge, followed by drug trafficking and public order offenses at about 15% apiece;

offenderages170223• A drug trafficking offender’s criminal history was closely associated with the likelihood of recidivism, from a recidivism rate of 35% for offenders with no prior criminal history, to 77% for offenders in the highest criminal history. Interestingly, the Guidelines “career offenders” – whom policy dictates are supposed to represent the hardest-core offenders – had a recidivism rate of 63%, lower than three of the six other criminal history ranges;

• A federal drug trafficking offender’s age at time of release was closely associated with likelihood of recidivism. Drug trafficking offenders released prior to age 21 had the highest recidivism rate at 65%, while drug trafficking offenders over 60 years old at the time of release apparently retired, with a recidivism rate of only 16.5%;

• There is little apparent association between the length of imprisonment and recidivism for drug trafficking offenders overall, a finding that supports other studies suggesting that no prison sentence over 5 years has any greater deterrent effect than a 5-year term. However, once criminal history is accounted for, length of imprisonment is associated with lower rates of recidivism (probably because of the older age of the prisoner when released).

• Federal drug trafficking offenders had a substantially lower recidivism rate compared to state drug offenders released around the same time. Over 76% of state drug offenders released from prison were rearrested within five years, compared to 42% of federal drug trafficking offenders released over the same five-year period.

The Report includes chapters breaking down the numbers according to the types of drugs in the offenders’ cases.

rearrestbysent170223There’s plenty of data in the Report for everyone. While only being released two days as of this writing, the Report is already being used by one inmate going back for resentencing and another 60+-year old offender on supervised release who wants the court to end his supervision early.

United States Sentencing Commission, Recidivism Among Federal Drug Trafficking Offenders (February 21, 2017)

– Thomas L. Root

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A Couple of Year-End Decisions of Interest – Update for January 3, 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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GOV’T APPEALS WIRETAP SUPPRESSION FOR AGENT’S LIE

Late last week, the Government appealed a remarkable Dec. 22 EDNY decision to suppress wiretap evidence because a federal agent perjured himself on the application.

liarliar171013In the case, a drug trafficking prosecution, the Government wanted to use recorded phone conversations, as well as GPS data taken from the ankle bracelet of a conspirator who was on state parole. Senior District Judge Jack Weinstein ruled, however, that a Homeland Security agent falsely swore in a 2015 affidavit supporting the there had been no previous wiretaps on the targets, when in fact there had been four in the last 12 years. 

“This was not a ‘misunderstanding.’ It was perjury,” the Judge wrote in United States v. Lambus. “Knowingly false statements cannot be tolerated, especially if those statements are made at proceedings where the courts have little choice but to take the government at its word.”

The government argued the agent made an inadvertent mistake, but admitted his representations were “absolutely wrong.” The appeal was filed last week in the 2nd Circuit, and will postpone a planned Jan. 9, 2017, trial.

The Judge also limited the use of GPS data pulled from Lambus’ ankle bracelet. Lambus’ parole officer began to suspect he was dealing drugs, and otherwise violating his parole, he made Lambus wear a bracelet. The PO kept the bracelet on for 2 years, and shared the date with the Feds.

gps170103“A state cannot use a parolee as a sort of fly paper, trailing him around the community for years, trolling for criminals,” the court held. “If the state wishes to search someone for the primary purpose of furthering a deliberate effort to gather evidence as part of a wide-ranging criminal prosecution, the “warrant and probable-cause requirement is not…‘impracticable’;” the search cannot be justified as a “special need,” even if the searchee is a parolee.

Memorandum Opinion and Order, United States v. Lambus, Case No. 15-CR-382 (E.D.N.Y. Dec. 22, 2016)

– Thomas L. Root

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NO SENTENCE ENHANCEMENT FOR LIST OF PRIOR ARRESTS

Maximo Mateo-Medina tried to do it right. He was thrown out of the U.S. after a conviction, but came back to care for his dying wife. After she passed away, he stayed to care for her special-needs grandson, whose parents were dopers. When he threw the kid’s father out for drug abuse, the dopehead dad turned him in for illegal reentry.

snitch161004The government agreed he should only get 6 months, but the district court gave him a year, because the Presentence Report listed 6 prior arrests that did not result in convictions. The PSR had no facts about the arrests, but that didn’t keep the court from hammering Maximo, holding he had “engaged in conduct which to the Court’s view belied and made ring hollow a little bit his desire to merely come to America to seek a better life.” The sentencing judge complained it was the reason Maximo “did not have any actual adult convictions is because of the breakdowns in the court—in the state court system—and not because of innocence.”

Last Friday, the 3rd Circuit said the district court violated Maximo’s due process rights by speculating about his criminal past with no evidence supporting its conclusions. The Court of Appeals cited recent studies that showed whites and blacks who commit the same minor offenses get treated very differently: “In early adulthood,” the Court said, “race disparities in drug arrests grew substantially; as early as age 22, African-Americans had 83% greater odds of a drug arrest than whites and at age 27 this disparity was 235%.” With respect to Hispanics, the study found that socioeconomic factors such as residing in an inner-city neighborhood accounted for much of the disparity in drug arrest rates.”

prohibition-arrests-blacks-thumbnailIn other words, it’s as likely that Maximo got arrested a lot because he was a Hispanic in a poor neighborhood, and not prosecuted because the charges were too bogus for a prosecutor to mess with. Without some facts showing he was guilty but lucky enough to beat the raps, the Circuit said, a sentencing court cannot consider arrests without convictions in increasing a defendant’s sentence.

United States v. Mateo-Medina, Case No. 15-2862 (3rd Cir., Dec. 30, 2016)

– Thomas L. Root

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