Tag Archives: fair sentencing act

Resentencing the Whole Crack Defendant – Update for April 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.

PACKAGE STORE

More than a few prisoners seeking sentence reductions under Section 404 of the First Step Act – the provision that made the 2010 Fair Sentencing Act apply retroactively to crack cocaine sentences – were denied reductions because they had other non-crack counts of conviction that weren’t covered by Section 404 and kept the sentences high.

gift211222In the case of Nathaniel Richardson, his sentence was life for crack distribution and a second life term for a 21 USC § 848 continuing criminal enterprise count. The district court found that the crack distribution count was a covered offense and reduced Nate’s life sentence to 360 months. But on the CCE count, the district court relied on 4th Circuit precedent, holding that CCEs were not covered offenses under Section 404 and left the life term intact. That life term was unchanged.

Last week, the 4th Circuit reversed, holding that the district court had the discretion to reduce both covered and noncovered offenses under Section 404 of the First Step Act “if they function as a package.”

The 4th said it has “upheld the use of the sentencing package doctrine in the habeas context, and resentencing under the First Step Act similarly provides district courts with broad discretion to fashion a remedy.” The Circuit ruled that “allowing judges to utilize the sentencing package doctrine is in line with how district judges practically sentence defendants and in accordance with the purpose of the First Step Act… The sentencing package doctrine is applicable here because where one count of a package is remanded, the district judge must be given the discretion to reconfigure the sentencing plan to ensure it remains adequate to satisfy the statutory sentencing factors.

District judges are entrusted with “enormous responsibility,” the 4th said, “and must be given adequate discretion in resentencing, especially in light of the changing landscape of new statutory schemes.”

United States v. Richardson, Case No. 22-6748, 2024 U.S. App. LEXIS 6618 (4th Cir., March 20, 2024)

– Thomas L. Root

Last Gift in the Bag: Something For The First Step Act – Update for December 29, 2023

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FINALLY, A CANDY CANE FOR THE FIRST STEP ACT (BUT A LUMP OF COAL TO THE BOP)

I end my year-end emptying of Santa’s bag with this: The First Step Act turned five years old last week.


candycane231229I still wonder how the First Step Act ever passed. Back then, back in those dark November and December days in 2018, I was wondering how the bill would make it through the 115th Congress before the session expired. In fact I wrote its obituary several times in those waning days.

Back then, I publicly lamented the bill’s “dumbing down” to appease the Senator Tom Cottons, Josh Hawleys and Ted Cruzs of the world and wondered how quickly prisoners would see any advantages. It didn’t unfold like I thought it would, but then, who saw the pandemic coming?

First Step emerged from Congress leaner and definitely meaner than it started. Changes in 18 USC 924(c) to limit draconian mandatory sentences for successive violations were made nonretroactive. The list of convictions excluded from getting credit for successful completion of programming intended to reduce recidivism got longer and longer.

But for all of the belly-aching at the time, there has not been a piece of criminal justice reform legislation like First Step for at least 50 years. It’s easy to complain about the failings of the bill, largely due to political horse-trading needed to get the measure passed and Federal Bureau of Prisons administrative misfeasance and malfeasance. For the public, it has been an unqualified success. Without it, the federal prison population would be substantially higher than it is today. What’s more important, as The Hill put it last week, “since the First Step Act passed, thousands more people leaving the federal prison system have rebuilt their lives without reoffending — in fact, the federal recidivism rate has dropped by an estimated 37%t since the law was enacted.”

compassion160124What’s more, nearly 4,000 people received retroactive Fair Sentencing Act sentence reductions, over 4,600 people went home on compassionate releases, almost 1,250 elderly offenders went to home confinement under the 34 USC 60541(g)(5) pilot program, and almost 27,000 inmates have gotten earlier release through FSA credits.

As we approach the 2024 elections, some Republican candidates have been grousing about the First Step Act. Florida Gov Ron DeSantis, who voted for First Step as a Congressman in 2018, denounced the bill last summer as a “jailbreak bill” and said he would get it repealed. But last week, Trump published his campaign’s “Platinum Plan” including a commitment to “continue to make historic improvements to the criminal justice system through common sense actions like the First Step Act” with a “Second Step Act.”

One commentator said that “the Act’s positive outcomes, such as significantly lower recidivism rates among those released under its provisions, demonstrate that public safety reforms are not inherently linked to the recent surge in violent crime… On the other end of the spectrum, we find the likes of Chris Christie and Nikki Haley. Their records of reform in New Jersey and South Carolina, respectively, have been lauded as models of successful criminal justice reform.”

lumpofcoal221215One piece of coal fell out of Santa’s bag along with First Step’s candy cane. The coal goes to the BOP for its disingenuous press release last week that said “the Federal Bureau of Prisons is proud of the work accomplished implementing the First Step Act. Including the support and collaboration of our partners and stakeholders, the dedication and hard work of our employees, and the courage and resilience of the AICs [‘adults in custody’ for you Philistines who still think of them as prisoners and inmates]and their families.”

Anyone who recalls the BOP’s approving 36 out of 31,000 compassionate release requests during the pandemic (an average of 1 in 1,000), its mean-spirited and chary November 2020 proposed rules for FSA credits that were rejected only by new leadership in the Dept of Justice just before adoption a year later, and its ham-handed efforts to timely credit and post FSA credits knows that First Step’s successes have been despite, not because, of BOP administration.

The Hill, Five years on, Congress must build on the First Step Act successes (December 21, 2023)

BNN, The First Step Act: A Pivotal Landmark in Criminal Justice Reform and its Political Implications (December 18, 2023)

BOP, Fifth Anniversary of the First Step Act (December 21, 2023)

– Thomas L. Root

First Step’s Coming Birthday Reason for Hagiography – Update for October 19, 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.

FIRST STEP ACT TURNS FIVE YEARS OLD

Cake201130The anniversary is still 63 days away, but a couple of early hagiographic articles on the First Step Act’s 5th birthday are already being posted.

The Crime Report said last week that First Step “now allows federal inmates to significantly reduce their actual penal custody time. That fits into the primary goal of The Act, which is to reduce recidivism among nonviolent offenders through greater emphasis on rehabilitation in the Bureau of Prisons.”

The philanthropy Arnold Ventures interviewed Colleen P. Eren, Ph.D., author of a new book, Reform Nation: The First Step Act and the Movement to End Mass Incarceration. She noted that “33,000 people have been released from federal prison so far under the First Step Act, according to FAMM. The recidivism rate for those people is 12.4% compared to a rate of around 43% for others exiting federal prison. The First Step Act made President Obama’s Fair Sentencing Act of 2010 retroactive, resulting in the release of around 4,000 people who were sitting in prison under the 1987 crack cocaine sentencing disparity. It also made it easier to get compassionate release, and a total of 4,500 people have been released under that change.”

compromise180614First Step was far from perfect, but Dr. Eren says that’s more of a feature than a bug. “The First Step Act is an example of people not letting the perfect be the enemy of the good. There were differences to negotiate between conservative reformists and progressive reformists. Conservatives think that the incarceration system went too far but that it’s not fundamentally flawed… Left-leaning organizations refused to give their support until sentencing reform was included, which was significant… The left had to accept the PATTERN risk assessment – They said it was racist, reinforced existing disparities, and didn’t go far enough toward ending mass incarceration. It was a classic reform-versus-revolution tension.”

Five years into the Act, the BOP has yet to work out properly accounting for FSA credits and placing prisoners with credits in halfway house and home confinement appropriately. But as frustrating as the implementation of First Step has been, life before the Act passed was much bleaker.

The Crime Report, The First Step Act: A Five-Year Review and the Path Forward (October 10, 2023)

Arnold Ventures, Historic Bipartisan Justice Reform Turns Five (October 6, 2023)

Colleen Eren, Reform Nation: The First Step Act and the Movement to End Mass Incarceration (Stanford Univ Press, Sep 2023)

– Thomas L. Root

Sentence Reduction Decisions Can’t ‘Phone It In’ – Update for October 20, 2022

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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 AND SEC 404 DENIALS CANNOT BE ROTE

Since prisoners have been permitted to file motions for sentence reduction under 18 U.S.C. § 3582(c)(1)(A)(i) – generally known as “compassionate release” – and motions for application of the Fair Sentencing Act of 2010 under § 404 of the First Step Act, we have seen district court denials that seemed pretty summary and “cookie cutter.”

cookiecutter221020To be sure, courts have had to deal with thousands of such motions, and undoubtedly the judges detail review and preparation to their junior-most clerks. But I am reminded of a surgical procedure I had a few years ago. The surgeon dismissed my concerns with a breezy “don’t worry – yours will be my 1,500th one of these.” I responded, “Maybe so, but will be my first.”

Compassionate release and § 404 motions are like that. Joe Prisoner’s motion may be the hundredth one the court has decided, but for Joe, it’s his first.

Decisions from the 4th and 7th Circuit a week ago delivered a stark reminder to district judges that denials of such motions should give due consideration to the movant’s arguments and evidence – not necessarily to accept them –but at least to note what the prisoner said and to explain why that argument is insufficient to carry the day.

Jon Singleton, having done 14 years already for a meth conspiracy, sought compassionate release because of COVID. Jon’s district court found that he had not shown an extraordinary and compelling reason for release because he had twice refused the vaccine. The thinking is that anyone who refuses the vaccine can hardly be sincerely worried about the effects of COVID-19.  If that weren’t enough, the district court said, the seriousness of Jon’s offense one and a half decades ago made the original sentence correct.

On appeal Jon complained said the district court had it wrong. He had refused the vaccine only once, and that time he did so only because he had a history of allergic reactions to vaccines and “was denied the ability to consult with a medical professional prior to vaccination.”

mywayor221020This was hardly a novel complaint: Dr. Homer Venters, a court-appointed epidemiologist who inspected FCI Lompoc for an ACLU class-action lawsuit against the BOP over COVID, lambasted the BOP over a year ago for the agency’s “take it or take a hike” approach to administering the COVID vax. Venters told the Central District of California District Court that he was “extremely concerned” about low inmate vaccinating rates, which he attributed to prison staff not addressing inmates’ “very valid and predictable concerns” about the effects the vaccine might have on their underlying health conditions. Rather than address inmate questions, Venters testified, prison staff dismissively told the inmates to either “take the vaccine or sign a refusal form.”

Two weeks ago, the 4th Circuit sided with Jon. “Initially,” the Court said, “the district court erroneously stated that Singleton refused the vaccine twice; the record reveals that he refused the vaccine only once. Moreover, the district court failed to consider Singleton’s argument that he refused the vaccine because he had a history of a severe allergic reaction to the influenza vaccine and other medications and was denied the ability to consult with a medical professional prior to vaccination. Because the district court made a factual error and failed to consider Singleton’s individual circumstances, we conclude that the court abused its discretion…”

Jon also complained the district court failed to consider (1) his rehabilitation evidence; (2) his argument that a “time served” would constitute just punishment; (3) his low recidivism score; and (4) that due to a change in state law, one of his prior drug felonies was reduced to a misdemeanor, which would have reduced his criminal history category. The Circuit agreed: “Given the amount of time Singleton spent in prison before filing his motion and the fact that the district court did not acknowledge any of his many arguments that relied on post-sentencing conduct and circumstances, we conclude that the district court abused its discretion in considering the § 3553 factors.”

Jamell Newbern was convicted of crack distribution in 2005. Because he had two qualifying prior convictions, he was sentenced as a Guidelines career offender. At the time, the district judge said he would have sentenced Jamell to the same term even if he had not been a career offender.

denied190109The District Judge had long since retired. Since 2005, one of Jamell’s two prior convictions (reckless discharge of a firearm) was held to not be a crime of violence. But the new judge on Jamell’s case reimposed the original 300-month sentence, adopting the retired judge’s position that 300 months was warranted whether or not Jamellwas a career offender or not. The new judge did not even address Jamell’s post-sentencing record.

Last week, the 7th Circuit agreed that the new judge’s adoption of the prior judge’s determination that Jamell’s conduct warranted a 300-month sentence regardless of his status as a career offender.

“But,” the 7th said, “we see things differently when it comes to the district court’s failure to respond to Newburn’s argument for relief based on his good behavior in prison. Concepcion expressly established that conduct in prison—good or bad—can be properly considered in a First Step Act motion. Newburn meaningfully emphasized his positive record in his motion. By no means was Newman making a throwaway point. To the contrary, he devoted about a full page of his motion to highlighting his clean disciplinary record, employment in prison, completion of a drug-education course, and earning a GED. Concepcion v. United States does not require a detailed explanation in response to these considerations, but we cannot be sure that the district court considered Newburn’s arguments when it provided no explanation at all.”

The Circuit said that in light of Concepcion, “it is clear that the district court’s failure to address Newburn’s good-conduct argument rises to the level of procedural error.”

United States v. Singleton, Case No 21-6798, 2022 U.S.App. LEXIS 27943 (4th Cir., Oct. 6, 2022)

Santa Barbara Independent, Doctor ‘Extremely Concerned’ About Low Vaccination Rate Among Lompoc Prisoners (May 20, 2021)

United States v. Newbern, Case No. 22-1244, 2022 U.S.App. LEXIS 28348 (7th Cir., Oct. 12, 2022)

– Thomas L. Root

Concepcion’s Concept: Discretion on Resentencing is Presumed – Update for June 29, 2022

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DOES CONCEPCION HOLD LESSONS FOR COMPASSIONATE RELEASE?

The Supreme Court ruled on the final two criminal cases of the term on Monday (although there are six more October Term 2021 cases yet to be decided before the end of the week).

crack-coke200804Back in 2009, Carlos Concepcion pled guilty to distributing at least five grams of crack cocaine, and was sentenced to 228 months in prison. The following year, Congress passed the Fair Sentencing Act, which brought crack sentences more in line with powder cocaine sentences, down from a 100:1 ratio to an 18:1 ratio.

But the Fair Sentencing Act was not retroactive, so people sentenced before it was passed – like Carlos – could not benefit from it. Only when the First Step Act (FSA) passed in 2018 were the benefits of the Fair Sentencing Act extended to the Carlos Concepcions of the world.

Under FSA § 404, Carlos was entitled to apply to his sentencing court for resentencing at a lower level. Like most inmates – whose resources are only sufficient to pay for some telephone calls home and a few items in the commissary – Carlos could not afford a lawyer, so he filed pro se.

careeroffender22062Complicating Carlos’s case was the fact that under the advisory Sentencing Guidelines, he was deemed to be a career offender. Career offender status, a label that is easily applied to people who have hardly spent their lives as a criminal, sends a defendant’s minimum sentencing range guideline into low earth orbit. Carlos’s range was no exception. Under the statute, Carlos faced a minimum 5-year sentence, but his advisory sentencing range as a Guidelines career offender started at 17½ years.

The government argued that Carlos’s Guidelines sentencing range did not change despite the fact that the Fair Sentencing Act lowered his minimum sentence to zero, because the career offender guidelines were not based on drug amount or statutory minimum sentences. Carlos responded that he should no longer be considered a career offender because one of his prior convictions was vacated and his prison record showed evidence of rehabilitation through his participation in drug and vocational programs, spiritual growth, and a solid reentry plan.

Carlos’s sentencing judge sided with the government, holding that because Carlos’s sentencing range remained the same, Carlos could not rely on the Fair Sentencing Act for a lower sentence.

Last Monday, the Supreme Court ruled in favor of Carlos. Justice Sonia Sotomayor, writing for a 5-4 majority, said that “Federal courts historically have exercised… broad discretion to consider all relevant information at an initial sentencing hearing, consistent with their responsibility to sentence the whole person before them. That discretion also carries forward to later proceedings that may modify an original sentence. Such discretion is bounded only when Congress or the Constitution expressly limits the type of information a district court may consider in modifying a sentence.”

discretion220629Congress did nothing in the First Step Act to “contravene this well-established sentencing practice,” Sotomayor said. “Nothing in the text and structure of the First Step Act expressly, or even implicitly, overcomes the established tradition of district courts’ sentencing discretion.”

Ohio State University law professor Doug Berman, writing in his Sentencing Law and Policy blog, argues that the Concepcion ruling has an impact well outside the seemingly limited FSA Sec. 404 resentencing. “Specifically,” he wrote, “I think the decision resolves not only the circuit split surrounding crack resentencing cases, but also the circuit split surrounding what factors can serve as the basis for compassionate release after the FIRST STEP Act.

Berman noted:

There is a deep circuit split about whether non-retroactive changes in sentencing law may constitute “extraordinary and compelling reasons” for compassionate release. Ever the textualist, I have argued that non-retroactive changes in sentencing law can provide the basis for compassion release because nothing in the text of § 3582(c)(1)(a) supports the contention that non-retroactive changes cannot ever constitute ‘extraordinary and compelling reasons” to allow a sentence reduction, either alone or in combination with other factors. But I believe the Third, Sixth, Seventh and Eighth Circuits have all formally held otherwise. And yet, this language from the Supreme Court’s opinion in Concepcion would seem to undercut any court efforts to invent extra-textual limits on sentencing or resentencing considerations:

It is only when Congress or the Constitution limits the scope of information that a district court may consider in deciding whether, and to what extent, to modify a sentence, that a district court’s discretion to consider information is restrained…

The only limitations on a court’s discretion to consider any relevant materials at an initial sentencing or in modifying that sentence are those set forth by Congress in a statute or by the Constitution….

Moreover, when raised by the parties, district courts have considered nonretroactive Guidelines amendments to help inform whether to reduce sentences at all, and if so, by how much…. Nothing express or implicit in the First Step Act suggests that these courts misinterpreted the Act in considering such relevant and probative information.

Berman argues that the Supreme Court’s language about a sentencing judge’s broad discretion “when considering a sentence modification is directly relevant to federal judges’ consideration of so-called compassionate release motions.”

compassion160124There is nothing in 18 USC § 3582(c)(1)(A)(i) (the statute on sentence reductions, generally if inaccurately known as “compassionate releases”) that in any way limits a judge in what he or she may consider in fashioning a lower sentence, or for that matter, in deciding whether to impose a lower sentence at all. That should be game, set and match for the issue of the limits of a court’s discretion on deciding a compassionate release motion.

One interesting twist: the Sentencing Commission will soon be reconstituted, and it seems clear that the new commissioners consider rewriting U.S.S.G. § 1B1.13 – the Guidelines policy statement on compassionate releases – as job one. If a rewritten § 1B1.13 limits a sentencing court’s discretion in granting or denying a compassionate release motion, would such a limitation be one “set forth by Congress in a statute or by the Constitution?” Sentencing Guidelines must be submitted to Congress, but go into effect unless the Senate otherwise directs. And the compassionate release statute requires a sentencing judge to ensure that any sentence reduction “is consistent with applicable policy statements issued by the Sentencing Commission.”

But that’s a question for another time (specifically, after a new § 1B1.13 goes into effect, which probably will not be before November 2023. For now, movants for compassionate release would do well to apply Prof. Berman’s broad interpretation of Concepcion’s holding.

Concepcion v. United States, Case No 20-1650, 2022 U.S. LEXIS 3070 (June 27, 2022)

ABA Journal, In unusual lineup, SCOTUS rules for pro se prisoner who sought lower sentence under First Step Act (June 27, 2022)

Sentencing Law and Policy, SCOTUS ruling in Concepcion, while addressing crack cases, should also resolve circuit split on compassionate release factors (June 27, 2022)

– Thomas L. Root

Supremes Burning Midnight Oil To Finish Term – Update for June 8, 2022

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SUPREME COURT FACES HISTORIC BACKLOG IN FINAL MONTH OF TERM

The Supreme Court – waiting until the bitter end to do the largest share of its work in more than 70 years – has scheduled a rare second opinion day for today.

scotus161130At 10 am, the Court will issue one or more opinions. It still has a lot to choose from.

The court is scheduled to hand down 30 more opinions, 48% of its expected total in argued cases, as its 2021-22 term ends in slightly more than three weeks. While most people are awaiting rulings that could hold that abortion is not a constitutional right but carrying a concealed gun is, there are five decisions of particular interest to federal inmates and defendants:

• Concepcion v. United States, Case No. 20-1650. Issue: Whether, when deciding if it should “impose a reduced sentence” under Section 404(b) of the First Step Act (Fair Sentencing Act retroactivity), a district court must – or even may – consider intervening legal and factual developments.

• Ruan v. United States, Case No. 20-1410. Issue: Whether a physician charged with prescribing controlled substances outside the usual course of professional practice may be convicted under 21 USC § 841(a)(1) without regard to whether, in good faith, he or she “reasonably believed” or “subjectively intended” that the prescriptions fall within that course of professional practice.

• United States v. Taylor, Case No. 20-1459: Whether 18 USC § 924(c)’s “crime of violence” definition excludes attempted Hobbs Act robbery (which could end up excluding all attempted crimes of violence from being predicates for § 924(c) offenses).

• Egbert v. Boule, Case No. 21-147: Whether one can sue a federal officer under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics for First Amendment retaliation claims.

• Kemp v. United States, Case No. 21-5726: Whether F.R.Civ.P. 60(b)(1) authorizes relief based on a district court’s error of law.

scotussplit190627The Supreme Court typically announces opinions on Monday, but as June progresses, more second opinion days like today are likely.

Supreme Court Faces Historic Case Backlog as Fractious Term Comes to an End (June 1)

The New York Times, We preview the five biggest rulings expected from the Supreme Court in the next few weeks (June 8, 2022)

– Thomas L. Root

‘Shut Up! Won’t Talk, Eh?’ No Approach to Sentence Reduction – Update for April 25, 2022

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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.

SANDBAGGING NOT ALLOWED

nickdanger220426Reading this case, I could not help but recall a Firesign Theater “Nick Danger” skit in which the crusty private eye was interrogating a suspect, with questions delivered in machine-gun fashion: “Where were you on the night of the 14th? Shut up! Won’t talk, eh?”

OK, I’ve dated myself. Big deal. Were he a baby boomer instead of a Gen-X’er, Tydearain Smith would know what I mean.

Ty, convicted in 2008 of possession of over 5 grams of crack and brandishing a firearm during a drug trafficking crime, was partly into his 293-month sentence when he wrote a very short letter to his district court. All he wanted to know was whether he was eligible for a sentence reduction under Section 404 of the First Step Act (the retroactive Fair Sentencing Act). If so, TyHe just wanted appointment of an attorney, and did not argue he was eligible for the reduction or explain why – if he was – he should get a sentence cut.

The district court construed Ty’s pro se letter as a Section 404 motion. Without asking Ty or the government to brief the issue, the court denied the letter motion as moot, concluding that Ty was not eligible for a reduction.

tyletter220426Ty and the public defender both filed for reconsideration. The district court ordered the government to file a response to the motions for reconsideration, “including all substantive arguments.” Instead, the government, Ty and the PD jointly filed a motion asking that a briefing schedule be set so that everyone could argue all “substantive legal and factual arguments for relief.”

The court denied the joint motion and ordered the government to respond as originally directed. It did so, arguing Ty was ineligible for relief.

The district court denied the motions for reconsideration. It again concluded that Ty was ineligible for Section 404 relief because the Guidelines ranges he had faced at sentencing had not changed. But then the court alternatively ruled that, even if Ty were eligible for relief, a “further reduction [was] not warranted” because he had lied at trial, brandished a gun, stipulated to 94% pure crack, and had already benefitted from the 2011 and 2014 Guidelines two-level reductions.

Last week, the 11th Circuit reversed the case, holding that district courts cannot sandbag parties like that. Before acting on its own initiative, a court must accord the parties fair notice and an opportunity to present their positions. A complete denial of the opportunity to be heard on a material issue, the Circuit said, is a violation “of due process which is never harmless error.”

sandbagging_3Here, Ty did not have any chance to present arguments in support of his request for a Section 404 reduction. “The wide berth given to district courts by the First Step Act requires deferential review with respect to the ultimate exercise of discretion,” the 11th said, “but it does not speak to the process which must be provided to the parties… A party must have his day in court.”

United States v. Smith, Case No 19-13056, 2022 U.S. App. LEXIS 10500 (11th Cir., Apr. 19, 2022)

– Thomas L. Root

Details Matter, 10th Circuit Says – Update for April 8, 2022

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DISTRICT COURT PUNT BLOCKED BY 10TH CIRCUIT

In 2004, Tony Burris was sentenced to 262 months on a crack cocaine charge, the low end of his Guidelines sentencing range. After the First Step Act was passed, Tony applied for his retroactive Fair Sentencing Act reduced sentence under First Step Section 404.

ghostdope220408The government opposed the motion, arguing that Tony’s Guidelines range remained the same because the calculation should be based on the quantity of crack cocaine attributed to him in the Presentence Report (typically stratospheric) rather than the smaller amount charged in the indictment. Recognizing that the parties raised an issue that had not yet been addressed by the 10th Circuit, the district court declined to resolve it and instead held that it would deny relief to Tony regardless of the correct Guidelines calculation.

Last week, the 10th Circuit reversed, holding that the district court was obligated to calculate Tony’s revised Guidelines range before denying relief on his Section 404 motion. “A defendant’s Guidelines range is the starting point and the initial benchmark of sentencing,” the Circuit ruled, and “a district court should begin all sentencing proceedings by correctly calculating the applicable Guidelines range.”

error161022The government argued that any error was harmless because the district court “looked at both proposed Guidelines ranges and concluded that it would deny the motion under either” one. The 10th rejected that contention, holding that while the district court may have said it would deny relief “whatever the result” of the correct Guidelines calculation, “our court has rejected the notion that district courts can insulate sentencing decisions from review by making such statements.” Here, the Circuit held, “the district court’s error, by its very nature, was not harmless; the district court’s exercise of discretion was untethered from the correct calculation of Tony’s revised Guidelines range.

United States v. Burris, Case No. 19-6122, 2022 U.S.App. LEXIS 8363 (10th Cir., Mar 30, 2022)

– Thomas L. Root

Freaky Friday – Update for November 12, 2021

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NEWS OF THE WEIRD

What’s Done is Done: In the 1st Circuit, Junito Melendez was denied a First Step Act § 404 sentence reduction under the Fair Sentencing Act (FSA). Junito finished his prison sentence in 2007 and got off supervised release three years later. Unfortunately, after ten years as a free man, he is now facing a new drug conspiracy charge.

goingback211112Therein lies the problem. Junito was released from his prior 109-month sentence within 15 years of the current conspiracy charge, so he faces a mandatory 10-year minimum sentence under 21 USC § 841(b)(1)(B). But if the prior sentence were to be changed consistent with the FSA, his release date would have been much earlier, and it would thus have fallen well more than 15 years before the current case. Had that been the case, he’d be facing no mandatory minimum now.

The 1st Circuit turned him down, holding that the word “release” in 21 USC § 802(57), which defines a “serious drug felony,” focuses on the “historical facts of a defendant’s sentence when determining whether § 802(57)‘s definition is met.” Regardless of what a different, shorter sentence might have yielded, the historical fact is that Junito was released in 2007. What’s more, the Circuit said, “Congress used the phrase ‘serious drug felony’ in the statute, signaling its intent for the backward-looking language of § 802(57)… to apply to the 10-year mandatory minimum.”

There just ain’t no shortening a sentence that’s already completely in the past tense.

I Should Have Been Watching Him While He Was Watching Me: Jason Sheppard, on supervised release after a drug sentence, discovered that his girlfriend had developed a cozy “personal relationship” with his probation officer, one Jeff Sciarrino. That’s one way to keep tabs on your supervisee, we suppose.

[Read the salacious details here]

Needless to say, the discovery did not enhance Jason’s relationship with his girlfriend. They broke up over her cheatin’ heart.

breakingup211112In his grief, Jason moved for early termination of supervised release under 18 USC § 3583(e), arguing that the breakup “was negatively impacting his rehabilitation, thereby undermining any utility in continued supervision.” Jason made the rather obvious claim to the district court that “the probation officer was never concerned with [his] rehabilitation and appears to use his position for his own personal interests.”

The district court denied Jason’s motion, and last week the 3rd Circuit agreed. It held the District Court acted within its discretion to conclude that  Probation Officer Sciarrino’s amorous misconduct “has little to do with whether Sheppard should continue under the supervision of a different officer.”

The Circuit criticized the District Court, however, for holding that the PO’s misconduct “actually undermines” Jason’s motion for early termination, because the upset may interfere with Jason’s mental health treatment.” The Circuit said, “the District Court’s order includes an inference that Sheppard is responsible not only for his own conduct, but also must shoulder any and all negative repercussions from the misconduct of his probation officer. This inference is improper… when evaluating a motion for early termination, a district court, particularly in the absence of holding an evidentiary hearing, may not impute a probation officer’s alleged improper actions to a defendant serving a term of supervised release, so as to justify continued (or additional) rehabilitative oversight.”

Nevertheless, the Court was not very happy with the U.S. Probation Office:

A probation officer’s communications of such a “personal” nature with an assigned defendant’s significant other are not only entirely inappropriate and unprofessional, but they also undermine the primary objective of supervised release – i.e., “to facilitate the integration of offenders back into the community rather than to punish them.” It also challenges the role of probation officers as trusted government officials who, in performing their duties, are “supposed to have in mind the welfare of the probationer…” In Sheppard’s case, his probation officer implicated Sheppard’s personal life in his own — and to such a degree that, according to Sheppard, it caused him to break up with his live-in girlfriend, with whom he considered to be in a “lifelong commitment.” If this is not the antithesis to assisting Sheppard in transitioning back into the community, and having his “welfare” in mind, we do not know what is.
supervisedleash181107In all candor, I am constrained to note that even when Probation Officers act appropriately, they provide little benefit to supervisees beyond what Probation Officer Lothario provided to Jason. Supervised release is largely a snare for the unwary supervisee, with a sorry record of violating about one of three post-release folks entrusted to the Probation Office’s care.

United States v. Melendez, Case No 20-1575, 2021 U.S.App. LEXIS 31858 (1st Cir., October 22, 2021)

United States v. Sheppard, Case No 20-3088, 2021 U.S.App. LEXIS 32722 (3d Cir., November 3, 2021)

– Thomas L. Root

Hey, Bud, Look What the House Judiciary Committee Lit Up – Update for October 8, 2021

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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.

BUT WAIT, THERE’S MORE…

marijuanahell190918We reported last Friday on the House passage of the EQUAL Act. In our glee over the potential redress of the racially disparate crack-to-powder laws, we overlooked the House Judiciary Committee’s approval of the Marijuana Opportunity, Reinvestment and Expungement (MORE) Act, H.R. 3617, on a 26-15 vote.

All Democrats on the Committee supported the bill while all but two Republicans opposed it.

Among other measures, the bill removes marijuana from the Controlled Substances Act, changes that “are retroactive and shall apply to any offense committed, case pending, conviction entered, and, in the case of a juvenile, any offense committed, case pending, or adjudication of juvenile delinquency entered before, on, or after the date of enactment of this Act.”

The bill still has to be approved by the House, as well as facing an uphill fight in the evenly-divided Senate. There is no timeline for full House or Senate action.

crackpowder160606Meanwhile, Sen. Richard Durbin (D-IL), Chairman of the Judiciary Committee, Sen. Charles Grassley (R-IA), and others last week introduced the Terry Technical Correction Act, which clarifies that individuals convicted of the lowest level crack offenses before the Fair Sentencing Act passed can apply for its retroactive application under Section 404 of the First Step Act. The same bill was introduced simultaneously in the House by bipartisan cosponsors led by Rep. Jerrold Nadler (D-NY) and Rep. Sheila Jackson-Lee (D-TX).

The bill seeks to amend the text of First Step Section 404 to make people sentenced for crack offenses prior to the passage of the Fair Sentencing Act eligible for sentence reductions even where they were sentenced under 21 USC 841(b))(1)(C), which has no mandatory minimum sentence, thereby undoing the Supreme Court’s Terry v. United States decision of last June. The bill has not yet been scheduled for a committee hearing.

House Judiciary Committee, Chairman Nadler Statement for the Markup of H.R. 3617, the MORE Act of 2021 (September 30, 2021)

H.R. 3617, MORE Act of 2021

Press Release, Senators Introduce Legislation to Correct Scotus Ruling on Retroactivity of Crack Cocaine Sentencing Reform (October 1, 2021)

House Judiciary Committee, Bipartisan Judiciary Committee Members Introduce Legislation to Clarify Retroactivity of Crack Cocaine Sentencing Reform (October 1, 2021)

– Thomas L. Root