We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
MINORITY REPORT
A divided 10th Circuit panel last week added a disturbing gloss onto the issue of the constitutionality of 18 U.S.C. § 922(g) (which prohibits felons, drug users and others from possessing guns), suggesting that courts should consider a defendant’s future dangerousness in an “as applied” challenge to whether the 18 USC § 922(g)(3) prohibition on unlawful drug users possessing guns violates the 2nd Amendment.
The Circuit’s approach is reminiscent of the Tom Cruise dystopian movie “Minority Report,” where the police arrested people for crimes they had yet to commit.
Jared Harrison, who worked at a marijuana dispensary and apparently liked to sample the product, was charged with violating § 922(g)(3), which prohibits firearm possession by “any person… who is an unlawful user of or addicted to any controlled substance.” The Western District of Oklahoma federal district court dismissed the indictment, holding that § 922(g)(3) – as applied to non-intoxicated weed users like Jared (who was not high when he was pulled over and arrested) – violated the 2nd Amendment.
The 10th Circuit reversed.
In the wake of the Supreme Court’s decision in United States v. Rahimi, the 10th noted, “the appropriate [2ndAmendment] analysis involves considering whether the challenged regulation is consistent with the principles that underpin our regulatory tradition.” The Circuit complained that the district court found that “our historical tradition of firearm regulation is limited to disarming those who have acted dangerously in the past. But we conclude, contrary to the district court, disarming those believed to pose a risk of future danger is consistent with a “principle[] that underpin[s] our regulatory tradition.”
The government argued that “for those who unlawfully use marijuana, like Mr. Harrison, research ‘amply demonstrate[s] a connection between marijuana use specifically and violence.'” Jared, on the other hand, contended “marijuana users are not in a class of dangerous people.” The 10th said that to determine whether § 922(g)(3) as applied to Jared was “consistent with” the government’s dubious claim, it “must show non-intoxicated marijuana users pose a risk of future danger,” and it remanded the case to the district court for additional fact-finding.
It’s tough to accurately predict future criminality. As the dissenting judge put it, “the district court was correct to reject the government’s invitation to strip away Mr. Harrison’s 2nd Amendment rights based only on abstract statistics and “projected” dangerousness. Remanding for factfinding on these issues puts a tremendous burden on Mr. Harrison, one which is inappropriate given that it is the government’s burden to justify § 922(g)(3)’s application in response to his 2ndAmendment challenge.”
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
Summer is ending with back-to-school, football, and cooler days upon us. In commemoration of a short summer, I am condensing a surprising amount of news from last week into ‘shorts’.
BOP ‘SHORTS’
Hot Fun in the Summertime:Forty House Democrats signed a letter from Rep Alma Adams (D-NC) last week to Bureau of Prisons Director William K. Marshall III expressing concern over the effects of extreme heat on BOP prisoners.
The letter asked 13 detailed questions about air conditioning in BOP facilities, including about prisons without AC or with broken systems, how many heat-related health incidents (illnesses, strokes, and deaths) have occurred since 2022, and any mitigation strategies used where prisoners and staff are in excessive heat.
The letter seeks a response by September 10, 2025.
BOP Unions Continue ‘Drug Poisoning’ Drumbeat: It’s been a year since BOP employee Marc Fischer died after coming in contact with purported legal mail to a USP Atwater inmate that was soaked in a liquid “spice” mixture. The death sparked a flurry of hand-wringing over BOP employees in danger that was not even quelled by autopsy results showing Mr. Fischer died of a heart attack, not exposure to any drugs.
The facts have not detained BOP staff unions, who last week issued a press release asking, “Does another staff member have to die before the Federal Bureau of Prisons finally takes the crisis of drugs entering prisons through the mail seriously? It’s now been a year since Marc Fischer—a longtime mailroom supervisor at U.S. Penitentiary Atwater and former Coast Guard member—lost his life after being exposed to contaminated mail, just before his planned retirement. Since then, nothing has changed. Dangerous substances continue to pour into federal prisons weekly, and staff are left to fight this epidemic with outdated technology and little support from the Bureau.”
The press release asserted that in recent incidents, “17 officers at Thomson were hospitalized after exposure to dangerous substances in the mailroom and required Narcan to survive. Days earlier, ten staff members at FCC Victorville suffered exposures over a four-day stretch.”
The BOP was a bit more circumspect: “We can confirm that several employees at the Federal Correctional Institution (FCI) Thomson have begun feeling unwell following a possible exposure to an unknown substance. Some employees were transported to a local hospital by emergency medical services (EMS).”
In a separate report, WDTV reported that 5 FCI Hazelton employees were taken to the hospital last Wednesday morning, according to the BOP, after being exposed to drugs. The report said, “Any time fentanyl or carfentanil is found, the officers are being sent to the hospital as a precaution…”
Dublin Scandal Nets More Guilty Pleas: Former BOP correctional officers Jeffrey Wilson and Lawrence Gacad have pled to sexually abusing female inmates at FCI Dublin, formerly a low-security female prison.
Wilson and Gacad were charged last June and entered pleas on August 4. They are the eighth and ninth BOP staffers to have either pled guilty or been convicted involving sexual abuse of Dublin inmates. The BOP has already agreed to a $116 million payout to abused women.
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
BOP STAFF FALL ILL FROM SUSPECTED MAILROOM DRUGS
BOP staff poisonings continue at an alarming pace.
Last week, 15 federal BOP employees at FCI Thomson were hospitalized after suspected exposure to illegal drugs in the prison mail room, requiring emergency Narcan administration. This incident followed another suspected exposure the prior week of 10 BOP staffers at FCC Victorville.
This followsa death last summerof Marc Fisher, BOP mailroom supervisor at USP Atwater (California), after what authorities have described as exposure to a drug-impregnated document sent as “legal mail” to an inmate in the facility. The headlines at the time were sensational, alleging that he may have succumbed to fentanyl. However, the drug tests showed that the drugs on the document were MDMB-4en-PINACA – known as “spice” – rather than fentanyl.
The Government disclosed in February that “[t]he autopsy report indicates that the correctional officer died of natural causes from a heart attack. According to the autopsy report, ‘the circumstances of death suggest external influences, at least fear in the setting of an apparently criminal act (mailing illicit substances to an inmate). However, there is no evidence that MDMB-4en-PINACA entered his blood stream.”
The fact that Mr. Fisher was not killed directly by the illegal drugs is scant comfort to BOP employees. Kendall Bowles, president of AFGE Local 3969 (representing 650 BOP employees at Victorville), said in a press release, “The Bureau’s leadership continues to force us to process contaminated materials with inadequate protection, showing complete disregard for officer safety.”
Making matters worse, Bowles said, is what he claims is the BOP’s attempts to hide these incidents from union officials. “Under a controversial Executive Order carried over from the Trump Administration, they didn’t even notify me when staff were rushed to the hospital and they failed to issue a press release. Their secrecy speaks volumes about their priorities.”
Compounding this crisis, according to Jon Zumkehr, President of AFGE Local 4070 (representing Thomson employees), is the recent White House executive order stripping BOP staff of collective bargaining rights. “This Executive Order is having a devastating impact on our officers,” Zumkher said. “They feel completely unprotected, unsupported, and they’re watching their friends and colleagues being carried out of BOP facilities after being revived with Narcan. We need help.”
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
GUNS AND DRUGS, BUT NOT AT THE SAME TIME
Where have we heard of this one before? Darryl Jackson found a buyer for some heroin. Unfortunately, the buyer was an informant, and he showed up to the buy with an undercover agent as his driver.
After the heroin transaction, the undercover cop-driver convinced the informant to ask Darryl about buying a gun as well as the drugs. Darryl wasn’t stocking any guns right then, but he wanted to keep the customer satisfied, so he walked home, grabbed a gun he had lying around the house, and returned to sell it to the informant.
The sale worked so well that Darryl apparently saw an opportunity to develop a side business. He sold the informant another gun a month later, and then a few minutes after the transaction, sold the undercover cop a gram of smack.
Naturally, Darryl was arrested and pled guilty. We wouldn’t have a story otherwise. Darryl’s presentence report included a 4-level enhancement to his advisory Guidelines sentencing range under USSG 2K2.1(b)(6)(B) for “possessing a firearm in connection with another felony offense, to wit: distribution of heroin.”
Darryl’s lawyer objected that “the guns and the drugs were not connected in any way, except to the extent that Mr. Jackson sold each of them, at different times, to the CI.” At sentencing, counsel contended, “In terms of the furtherance, there’s no close proximity. There’s no drugs and guns next to each other. They’re basically separate transactions.”
Alas, the district court did not buy it. Darryl got 100 months in prison, while with the four levels removed, his range would have been on the order of 77 to 96 months.
Last week, the 6th Circuit reversed. The appellate court said that “the § 2K2.1(b)(6)(B) enhancement applies if the defendant actually or constructively possessed the gun in connection with the felony. Because the record reveals no reason to conclude that Jackson actually possessed or used either gun in connection with the two drug sales, we focus here on constructive possession.”
Because he did not have a gun with him, the Circuit observed, Darryl had to walk a block away to retrieve the gun that he then exchanged for money. Because the gun was down the block during the initial heroin sale and because Darryl had no reason to expect there even would be a gun sale when he bought the drugs, there is no evidence that he “had either the power or the intention to exercise dominion or control over the gun in connection with this first sale of heroin.”
Actually, this is exactly how the Guidelines provision (and statutes like 18 USC 924(c)) are supposed to work. Darryl had a gun, but he did not carry it during a drug transaction. Maybe he worried about the extra time he could get for doing so. Maybe he worried about hurting someone. Maybe it was too heavy and made his pants droop. No one knows his thought processes, but the goal – short of ridding ourselves of drug trafficking altogether – is to get the violence out of the trade. The 6th Circuit’s wise parsing of the offense into two separate transactions honors this goal.
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
2014 GUIDELINE CHANGE CUT 30,000 DRUG SENTENCES
Back in the good old days, when the Executive Branch pretended to care about rational federal sentencing policies (and we’re not saying that the prior inhabitant of the White House really did, other than to the extent he could use sentence reform to burnish his legacy) the U.S. Sentencing Commission adopted an amendment to the federal sentencing guidelines that reduced by two the offense levels assigned to drug quantities. The 2014 change reduced defendant’s sentencing ranges accordingly.
Unlike most changes in the Guidelines, the Sentencing Commission made the 2-level reduction retroactive to people already sentenced. Retroactivity under the Guidelines is not an automatic thing: a defendant must petition his or her sentencing court under 18 USC 3582(c)(2) for a sentence reduction pursuant to the retroactive Guideline. If eligible, an inmate still must convince the court that a reduction of his or her sentence ought to be awarded. Sentencing courts have wide discretion as to what to do with a sentence reduction motion, and district court decisions are nearly bulletproof.
The Sentencing Commission released a report Tuesday on the fallout from the 2014 2-level reduction. Slightly more than 46,000 people applied for the reduction, of whom a few more than 30,000 receive sentence cuts, for a 66% grant rate. Like Meatloaf said, “Two outta three ain’t bad.”
Actually the odds for defendants were even better than that: 24% of the people who applied were not even eligible for the reduction, for reasons ranging from not having been sentenced under the drug guidelines to being locked in place by statutory mandatory minimum sentence. Only 8% of the 46,000 were denied on the merits (although due to sloppy district court records, the number could have been as high as 13%).
The average sentence was cut from 144 to 119 months, a 17% reduction. Of those receiving sentence reductions, 32% were convicted for methamphetamines, 28% for powder cocaine, 20% for crack, 9% for pot and 7% for heroin. The racial and ethnic distribution was 30% white, 33% black, and 41% Hispanic. Curiously enough, the defendant’s criminal history seemed to have no effect on likelihood of receiving a sentence cut, with novices and pros alike getting cuts at about the same rate.
Defendants were better off in Chicago than they were in sunny California. The 7th Circuit gave the largest sentence cuts, 33 months off on the average (20% of the original sentence). The 9th Circuit was the stingiest, giving an average cut of 20 months (16% of the sentence).
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
Today, we offer a few kibbles of legal interest that have been cluttering our dog pound for the last few days…
US ATTORNEYS TO FOCUS ON VIOLENT CRIME, WHICH INCLUDES DRUG TRAFFICKING
There is some indication that the Trump Administration may be expanding violent crime enforcement activities, a category which Attorney General Jeffrey Sessions believes must include gun and drug offenses. In keeping with the President’s fixation on violent crime, Sessions last week ordered United States Attorneys to work with with local and state prosecutors “to investigate, prosecute and deter the most violent offenders.”
Sessions’ directive said, “federal prosecutors should coordinate with state and local counterparts to identify the venue (federal or state) that best ensures an immediate and appropriate penalty for these violent offenders.”
Attorney General Jeffrey Sessions
In keeping with the new emphasis on violent crime, Sessions has appointed Steve Cook, chief of the Criminal Division for the U. S. Attorney’s Office for the Eastern District of Tennessee, and one of last year’s most vocal opponents of sentencing reform, as associate deputy attorney general with a mandate to focus on violent crime. Cook told a newspaper last year, “When you put criminals in jail, crime goes down. That’s what incapacitation is designed to do, and it works.” He called the idea that most offenders in federal prisons are nonviolent drug pushers is a myth.
Some critics the emphasis on violent crime as federal encroachment. “An expanded federal criminal justice agenda comprised of federal-state-local task forces targeting violent offenses and coupled with tougher federal sentences would be a substantial change in practice and a step in the wrong direction,” says Ryan King, senior fellow at the Urban Institute Justice Policy Center.
Tougher sentences could quickly reverse declines in BOP inmate population, especially in higher-level joints. According to a new Prison Policy Initiative report, 50% of the 189,000 federal prison inmates were convicted of drug offenses. Violent-crime convictions account for just 7% of the federal total.
The current-year book is available online as an interactive book that defies downloading. It contains a wealth of sentencing stats broken down in over 100 tables (as well as sentencing date by federal district, another 97 tables).
Slogging through the Sourcebook takes awhile, but it yields a lot of fascinating data. Of special interest:
• the number of cases ending with guilty pleas remained steady at 97%
• 14% of people challenging their sentences on direct appeal won reversal, but only 5% ended up with a better sentence.
• two out of three resentencings resulted from the 2-level reduction for drug offenses, Rule 35(b) reductions for helping the government were 11% of resentencings, and 10% were from wins on 2255 motions.
• continuing the pathetic performance on compassionate release, the courts granted a total of 51 inmates sentence reduction (a mere 0.4% of all resentencings).
• in new sentencings last year, 49% were within the Guidelines range, a two-percent increase over last year. Only 2% of sentences were above the range, while 19% were below the range for reasons other than government motion. About 20% of sentences were reduced because the defendant helped the government, and another 9% were cut for early disposition of an immigration case.
Like 97% of other federal defendants, Jim Kirkland made a deal with the government to plead guilty. In exchange, the government agreed to recommend the bottom of the guidelines range at sentencing.
But when Jim stood in front of the judge, the government went crazy on him, not just failing to recommend the bottom, but instead pushing for the very top, and bringing in live testimony of how terrible a few of his prior state crimes had been. The probation officer recommended the dead center of the sentencing range, and the judge gave it to him, saying that was what he had had in mind all along.
Jim’s sentencing lawyer must have been snoring too loudly to object, but on appeal, Jim raised the government’s plea breach. The AUSA admitted it was a plain breach, but argued the error did not affect Jim’s substantial rights or seriously affect “the fairness, integrity, or public reputation of judicial proceedings,” two of the standard Jim had to meet before proving F.R.Crim.P. 52(b) “plain error.” The government’s rationale was that the district judge said he said the 300-month midpoint sentence “frankly, happens to coincide with my own independent decision,” and that was sufficient evidence that the court would have imposed the same exact sentence even if the AUSA had recommended the bottom of the guidelines.
Last week, the 5th Circuit agreed with Jim. Clearly unhappy at the government’s breach of its promise, the Court said “the government did not merely recommend a high-end sentence but also strongly argued and presented testimony in support of that recommendation, recounting in great detail the graphic and… explicit facts involved in Kirkland’s offense of conviction and a prior offense and emphasizing his criminal history and his violation of the conditions of his supervised release. The testimony and argument by the Government filled more than nine pages of the sentencing transcript. Therefore, the district court may have been influenced not only by the Government’s recommendation, but also by Government’s passionate emphasis of aggravating factors in support of that recommendation, which brought public safety concerns to the forefront.”
When the government breaches a plea agreement, a defendant may either ask the court to order specific performance of the plea agreement and resentencing before a different judge, or withdrawal of the guilty plea. Jim asked for and got resentencing before a new judge.
Jared Harrison, who worked at a marijuana dispensary and apparently liked to sample the product, was charged with violating § 922(g)(3), which prohibits firearm possession by “any person… who is an unlawful user of or addicted to any controlled substance.” The Western District of Oklahoma federal district court dismissed the indictment, holding that § 922(g)(3) – as applied to non-intoxicated weed users like Jared (who was not high when he was pulled over and arrested) – violated the 2nd Amendment.
It’s tough to accurately predict future criminality. As the dissenting judge put it, “the district court was correct to reject the government’s invitation to strip away Mr. Harrison’s 2nd Amendment rights based only on abstract statistics and “projected” dangerousness. Remanding for factfinding on these issues puts a tremendous burden on Mr. Harrison, one which is inappropriate given that it is the government’s burden to justify § 922(g)(3)’s application in response to his 2ndAmendment challenge.”
