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Judging the Whole Person in Fair Sentencing Act Proceeding – Update for September 3, 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.

CRACK FSA RESENTENCING MUST CONSIDER MOVANT’S PRISON RECORD

Shawn Williams was sentenced in 2005 to 262 months in prison for a crack cocaine trafficking offense. Five years later, Congress finally bowed to Sentencing Commission pressure and public opinion, passing the Fair Sentencing Act (FSA).  That Act changed the draconian penalties for crack cocaine (which had considered 10 grams of crack to be the equivalent of one kilogram of powder cocaine) to bring them more in line with other drug offenses.

crack-coke200804Not that the change did much for Shawn. In order to satisfy some of the more puritanical members of the Senate – such as the unlamented former Sen. Jefferson Beauregard Sessions III –  the changes made by the FSA were not retroactive. This meant that people like Shawn were serving sentences that were grossly disproportionate to sentences being imposed on people with the same drug quantity who were being sentenced after the FSA went into effect.

The First Step Act fixed that eight years later, making the FSA retroactive. Now, Shawn could apply to his sentencing court for relief, because the Act – when applied to Shawn –  to reduced his statutory minimum sentence to 10 years from 20. However, for reasons not relevant to this blog, the FSA did not reduce his advisory Guidelines sentencing range.

Shawn nevertheless filed a motion to reduce his sentence under the retroactive FSA, arguing, among other things, that his good conduct in prison warranted a reduced sentence. He noted that he had not failed a single drug test, that he had helped 13 other prisoners earn their GEDs, and that he had held the same job for over eight years. The district court denied his motion, however, explaining that it had considered the 18 USC § 3553(a) sentencing factors (including Shawn’s prior drug convictions, and concluded that the 262-month sentence “remains sufficient and necessary to protect the public from future crimes of the defendant, to provide just punishment, and to provide deterrence.” The court did not address Shawn’s prison record.

A sidebar here: Back in 2011, the Supreme Court ruled in Pepper v. United States that “consistent with the principle that the punishment should fit the offender and not merely the crime… a sentencing judge [may] exercise a wide discretion in the sources and types of evidence used to assist him in determining the kind and extent of punishment to be imposed within limits fixed by law, particularly the fullest information possible concerning the defendant’s life and characteristics.” In other words, Pepper held, when a case comes back for resentencing – often years after the first sentencing, during which the defendant was doing time in prison – the sentencing court may consider the defendant’s prison record (such as good conduct and completion of educational or rehabilitative programs) in the resentencing.

goodboy200903But Pepper did not say that the district court was required to do so.  The issue Shawn raised on appeal was  whether the sentencing judge was at least required to acknowledge post-sentencing conduct raised by the defendant, and explain how that did or did not factor into the resentencing decision.

Last week, the 6th Circuit reversed the sentencing court, sending the FSA resentencing back to the district court. The 6th held that while the district court “need not respond to every sentencing argument… the record as a whole must indicate the reasoning behind the court’s sentencing decision.” Here, the district court did not mention Shawn’s prison conduct, and “that conduct by definition occurred after his initial sentencing in 2005, which means that neither the record for his initial sentence nor for his First Step Act motion provides us any indication of the district court’s reasoning as to that motion.”

The case was remanded “for further consideration of Williams’ good-conduct argument.”

United States v. Williams, 2020 U.S. App. LEXIS 27219 (6th Cir. Aug 26, 2020)

– Thomas L. Root

Appeals Courts Continue to Flesh Out Fair Sentencing Act – Update for August 4, 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.

A TRIO OF FAIR SENTENCING ACT DECISIONS

crack-coke200804The Fair Sentencing Act, passed in 2010 (“FSA”) reduced the horrific 100:1 crack-to-powder ratio previously enshrined in the law, a policy that meant that one gram of cocaine base was sentenced as though it were a quarter-pound of cocaine powder. This vestige of the crack panic, passed in the Anti-Drug Abuse Act of 1988, meant that defendants convicted of crack received much longer sentences than those who sold cocaine powder. And – because crack was primarily sold by black defendants while powder was primarily sold by white defendants – all of that resulted in a gross racial disparity in sentencing and imprisonment.

You can read more of the background here. 

But the Fair Sentencing Act was not retroactive. That is, it did nothing for people already sentenced under the 100:1 ratio. As I recall, the compromise in the Senate that led to the FSA being passed was that it not be retroactive, a deal needed to get then-Sen. Jefferson Beauregard Sessions III (R-Alabama) aboard. While I find no contemporaneous reports saying as much, Sen. Sessions did kill the 2015 Sentencing Reform and Corrections Act because it sought to make FSA retroactive, and his opposition to the First Step Act is well recalled. So I’m probably right.

We never tire of recalling that Sen. Sessions is gone, gone, gone...
We never tire of recalling that Sen. Sessions is gone, gone, gone…

At any rate, Section 404 of the First Step Act finally made the FSA retroactive, and litigation about that section continues. Here are three very recent examples:

Case 1:  Over 10 years ago, Ralphfield Hudson was convicted of selling cocaine powder and crack. After First Step made the FSA retroactive, Ralphie sought a sentence reduction, which his district court denied after concluding that the First Step Act did not permit the court to reduce a sentence for either a non-covered offense that is grouped with a covered offense or a covered offense when the defendant’s Guidelines range was unaltered by the Fair Sentencing Act.

Ten days ago, the 7th Circuit reversed Ralph’s denial, holding that if a defendant’s aggregate sentence includes both covered and non-covered offenses, a district court may reduce the sentence for the non-covered offenses, and even if the FSA did not alter the Guidelines range for a defendant’s covered offense, the district court may reduce the sentence for uncovered offense.

Case 2:  Vincent Corner did his time on a crack case, but then violated his supervised release by using drugs. The judge gave him another 18 months and some more supervised release time after that.

While Vince was serving his supervised release violation, the First Step Act passed, and Vince applied for retroactive FSA credit on his underlying sentence. The district judge denied him, saying that “deciding whether Vince was eligible for relief under the First Step Act was unnecessary because the court would deny his request for a reduction even if he was.”

denied190109Last week, the 7th Circuit reversed. First Step contemplates a “full review” for retroactive FSA relief, the Circuit said. The requirement that a Sec. 404 motion get a “complete review” suggests “a baseline of process that includes an accurate comparison of the statutory penalties – and any resulting change to the sentencing parameters – as they existed during the original sentencing and as they presently exist… A resentencing predicated on erroneous or expired guideline calculation or a decision to decline resentencing without considering at all the guidelines, would seemingly run afoul of Congressional expectations.”

Case 3:  Chandar Snow was convicted in 1998 of the 21 USC 848(e)(1)(A) offense of murdering someone while engaged in a violation of 21 USC 841(a) and (b)(1)(A), in this case, a conspiracy to distribute 50 grams or more of crack. He got life in prison for the offense. After the Fair Sentencing Act was made retroactive, his underlying drug crime was no longer punishable as an 841(b)(1)(A) offense, because the conviction was not for 280 grams or more.

Chandar took a chance. He argued that under the FSA – made retroactive by § 404 of the First Step Act – meant he no could be guilty of an 848(e)(1)(A) killing offense. The district court turned him down, and refused to lift the life sentence. Last week, the 6th Circuit agreed.

Badlaw200804The question is whether Chandar’s 848(e)(1)(A) is a “covered offense” under Sec. 404. The provision says a “covered offense” is a violation of a Federal criminal statute, the statutory penalties for which were modified by the FSA. “Modified” means reduced by some degree, the 6th said. Here, the FSA did not reduce the sentencing range that applied to the conviction for murder while engaged in a conspiracy to distribute 50 grams of crack. Instead, after the FSA, “those elements no longer amount to an offense under § 848 at all and there is no applicable statutory sentencing range. The elimination of statutory penalties cannot be called a ‘modification’ of statutory penalties without putting great strain on the ordinary meaning of the word ‘modify’.”

Thus, Chandar’s 848(e)(1)(A) conviction could not be considered a “covered offense” under § 404, and he was not entitled to a sentence reduction.

Chandar thus came to understand that no court was going to find a way to release someone guilty of murder when it could find a technical reading of the statute to avoid that outcome. Hard cases do indeed make bad law.

United States v. Hudson, 2020 U.S. App. LEXIS 22887 (7th Cir. July 22, 2020)

United States v. Corner, 2020 U.S. App. LEXIS 23387 (7th Cir. July 24, 2020)

United States v. Snow, 2020 U.S. App. LEXIS 23929 (6th Cir. July 29, 2020)

– Thomas L. Root

FSAction – Update for July 1, 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.

A PASSEL OF FAIR SENTENCING ACT RULINGS

Last week brought a pile of rulings on retroactive Fair Sentencing Act motions brought under Section 404 of the First Step Act.

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(Skip this if you know what I’m talking about). The Fair Sentencing Act of 2010, of course, is the law that changed how defendants with crack (cocaine base) were punished. Back in the paranoid days of the late 1980s, crack was considered to be the scourge of the inner cities, terribly addictive compared to powder cocaine, dirt cheap and sold by people who were crazily violent and armed with an arsenal that Kim Jong Eun would envy. Congress responded thoughtfully by passing the Anti Drug Abuse Act of 1988, which mandated punishment for crack dealers as though they had sold 100 times as much powder cocaine. Really. 100:1. Selling crack that weighed no more that a .22 cal. bullet (the pointy lead thing, not the whole cartridge) was akin to selling a half-pound of cocaine powder.

Congress was right about one thing. Crack was a plague of the inner cities, because users could by enough to induce a high for a lot less than cocaine powder. What this meant was that the people who sold it were overwhelmingly black. The net effect of the ADA was to hang horrific sentences on blacks, while their white suburban counterparts who peddled powder faced much lighter sentences for essentially selling the same amount of drug.

Think I’m kidding? Proper cooking of powder cocaine ( to that I suggest you try this at home) should yield about 89%. That is, one kilo of coke powder should give you about 9/10th kilos of crack. Under the ADA, sell the powder and get five years (63 months minimum sentencing range under the then-current Guidelines). Cook the powder and sell the crack, and your minimum sentencing range would be 235 months.

Subsequent studies debunked the myth that crack was ore addictive than powder, and that crack distribution occasioned more violence than powder sales. But the law persisted until 2010, when Congress passed the FSA. The FSA cut the penalties from a ratio of 100:1 down to 18:1.  The 1:1 people tried their hardest, but some compromise was needed to pass the Senate. Likewise, the FSA proponents had to give up their hope it would be retroactive to people serving long sentences already. To appease the troglodytes in the Senate, retroactivity was jettisoned, too.

In the First Step Act, Congress finally made the FSA retroactive. Under Section 404 of First Step, a person serving a crack sentence imposed before the FSA could apply for a sentence reduction, which the judge could grant or refuse to grant as a matter of discretion. (End background – you may resume reading).

presence200701Tony Denson, a federal prisoner, appealed the district court’s order reducing his crack sentence under Sec. 404. Without a hearing, the district court granted Tony’s motion, cutting his 262-month sentence to 188 months. The reduction was less than what Tony anticipated, so he appealed, arguing the district court erred by not holding a hearing.

The 11th Circuit shot him down, holding that under Federal Rules of Criminal Procedure 43, Tony’s presence was not required in a § 3582(c) proceeding, and that’s all a Sec. 404 resentencing is. The Circuit joined the 5th and 8th Circuits in holding that a defendant has no right to a hearing on a Fair Sentencing Act resentencing.

In the 8th Circuit, a district court denied Jonair Moore’s Sec. 404 motion, holding that he had dealt in too much coke and crack (11 kilos of powder, 1.2 kilos of rock) for the court to want to cut his time. Also, the judge said, Jon had obstructed and used a gun in the drug crimes, so his 230-month sentence seemed right.

Jon appealed, arguing that on a Sec. 404 resentencing, the judge had to apply the 18 USC § 3553(a) sentencing factors to any decision. The 8th disagreed.

“Section 404 is permissive,” the Circuit ruled. “A district court ‘may’ impose a reduced sentence. Nothing in this section shall be construed to require a court to reduce any sentence under the section.” Furthermore, the 8th said, Sec. 404 nowhere mention the § 3553 factors: “When Congress intends to mandate consideration of the section 3553 factors, it says so,” the panel wrote, citing 18 USC §3582(c)(2) (stating a court may impose a reduced sentence after considering the factors set forth in section 3553(a)…) In the First Step Act, Congress does not mandate that district courts analyze the section 3553 factors for a permissive reduction in sentence.”

Meanwhile, the 4th Circuit issued an explanation for its earlier order than Al Woodson be resentenced. Al was sentenced under 21 USC 841(b)(1)(C) for distribution of 4 grams of crack. Subsection 841(b)(1)(C) had no mandatory minimum sentence. Ten years later, Woodson filed a motion for a reduced sentence First Step Act Sec. 404, believing he was eligible for relief because he was convicted for a crack cocaine offense prior to 2010. The district court denied his motion on the ground that Sec. 404 does not apply to crack offenders sentenced under 841(b)(1)(C).

crackpowder191216

The 4th disagreed. It held that the FSA modified 841(b)(1)(C) by altering the crack cocaine quantities to which its penalty applies. Before the FSA, 841(b)(1)(C)’s penalty applied only to offenses involving less than 5 grams of crack cocaine. Because of the FSA, the penalty in Subsection 841(b)(1)(C) now covers offenses involving between 5 and 28 grams of crack cocaine as well.

The scope of 841(b)(1)(C)’s penalty for crack cocaine is defined by reference to 841(b)(1)(A) and (B): 841(b)(1)(C) imposes a penalty of not more than 20 years for crack trafficking offenses “except as provided in subparagraphs (A) [and] (B).” Thus, by increasing the drug weights to which the penalties in 841(b)(1)(A)(iii) and (B)(iii) applied, the Circuit held, Congress also increased the crack cocaine weights to which 841(b)(1)(C) applied, too.

United States v. Denson, 2020 U.S. App. LEXIS 19636 (11th Cir. June 24, 2020)

United States v. Moore, 2020 U.S. App. LEXIS 19616 (8th Cir. June 24, 2020)

United States v. Woodson, 2020 U.S. App. LEXIS 19700 (4th Cir. June 24, 2020)

– Thomas L. Root

Mistakes Were Made… and Tough Luck to You, Ezralee – Update for June 26, 2020

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9TH CIRCUIT SAYS COURTS MUST KEEP THE OLD ERRORS IN FSA RESENTENCING

You’d think that if a court had a chance to fix an old mistake when it resentenced someone, the judge would welcome the opportunity to do it right. You would be wrong.

mistake170417Ezralee Kelley was sentenced in 2006 on a crack distribution charge, with a sentencing range of 262-327 months due to her being a Guidelines “career offender.” After the First Step Act made the 2010 Fair Sentencing Act (FSA) retroactive, she filed for a reduced sentence.

A word about “career offenders”: Back many, many years ago, I was in the Air Force. It being the dawn of the recreational drug era, we all had to fill out a questionnaire about our drug use (or abstinence). Being smart airmen (no women in our unit back then), we all knew how much the brass would appreciate our candor, so we lied like a president on Twitter.

What struck me about the questionnaire was its categories. If you admitted to a single dalliance with controlled substances, you were classified as an “experimenter.” If you admitted to two or more uses of controlled substances, you were a “chronic abuser.” While how many drug abuse events were necessary to rank one as a “chronic abuser,” we were all pretty sure that number was a lot larger than two. Nevertheless, the categories were useful, because it informed us of the Air Force’s view of drug abuse. If we were to admit to “getting high,” we had better be talking about flying an airplane.

USAF200626Chapter 4B of the Guidelines is like that. If you have two prior convictions for a drug trafficking offense or crime of violence, or a mix, the Guidelines calls you a “career offender.” Under the Guidelines, a career offender’s offense level automatically shoots into low earth orbit (usually a 37) and your criminal history is deemed to be Category VI (which is the max).  If you sold me 50 lbs of pot, and you had two prior pot-selling convictions – federal or state – you could easily have a Criminal History score of II and a Guidelines Level of 12 (USSG. § 2D1.1(c)(12) for you technical folks). Your sentencing range would be 24-30 months, a veritable vacation.

But because of your two prior state felony convictions  – even if you only got probation for those – you would be a Guidelines career offender. Your offense level would shoot up to a 32 and your Criminal History category to VI. Your sentencing range would be 210-262 months (that’s 17.5 years to almost 22 years).

Like the Air Force “chronic abuser,” your two prior flirtations with the law (even if they were 14 years before), just turned two years in a federal prison camp into almost two decades in a place with guards with guns and razor wire.

(The foregoing is a mere illustration: you could not sell me 50 lbs of marijuana, because I have never, never even once used the stuff. Just check my Air Force questionnaire response if you doubt me.)

In today’s case, Ezralee’s youthful indiscretions had netted her two prior Washington state convictions for drugs. When she got a federal crack distribution case, she was “careered out,” as they say, and got a fearsomely long sentence. But when First Step made her eligible for an FSA reduction, she hoped to hit a home run.

bettethanezra200626A few years ago, the 9th Circuit had ruled that the some of Ezralee’s Washington state convictions used back in 2006 to make her a career offender do not count toward career offender. As a result, Ezralee said, she should be resentenced without the career status, which should drop her from 262-327 to a 51-month range.

The district court ruled that, mistake or not, it could not reconsider on an FSA resentencing whether she was a career offender.

neverhappened200626Last week, the 9th Circuit agreed. The Circuit explained that First Step permits the court to sentence as if parts of the FSA had been in place at the time the offense occurred, not as if every subsequent change in the law benefitting the defendant had occurred. In an FSA resentencing, the 9th said, the district court has to apply the laws that existed when the defendant’s crack offese was committed, only adding the FSA’s statutory reductions.

Thus, Ezralee’s new sentence assumed only that the FSA was in existence, resulting in a recalculated Guidelines range of 188 to 255 months. The Court gave her 180 months at resentencing.

United States v. Kelley, 2020 US App LEXIS 18834 (9th Cir Jun 15, 2020)

– Thomas L. Root

11th Circuit Beats Down Fair Sentencing Act – Update for June 24, 2020

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11th CIRCUIT APPLIES ‘RULE OF SEVERITY’ TO PARSING FAIR SENTENCING ACT

Every defendant knows that the Rule of Lenity holds that any ambiguity in a criminal statute must be resolved in the defendant’s favor. Defendants can be forgiven if they think that the 11th Circuit follows the opposite rule – call it a “Rule of Severity” – to never miss a chance to parse a statute in favor of the government.

angryjudge190822I wrote a week ago about Supreme Court Justice Sotomayor’s blast at the 11th Circuit’s abuse of the 28 USC § 2244 process to foreclose meritorious direct appeal claims. The 11th is already notorious for eviscerating the § 2255(e) escape clause, a provision which lets defendants file for conviction or sentence relief under 28 USC § 2241 where, for procedural reasons, the § 2255 remedy is unavailable.

In its most recent entry, the 11th last week rejected the combined reasoning of six other circuits by interpreting the Fair Sentencing Act in a way that forecloses relief to many defendants who, had they been convicted in any other circuit, would have gotten relief. In so doing, the Circuit has denied First Step Act Section 404 relief to hundreds of inmates.

Section 404 says a “covered offense” entitled to retroactive FSA sentence reduction is a violation of a Federal criminal statute, “the statutory penalties for which were modified by section 2 or 3” of the FSA. The meaning of “covered offense” depends on what the clause in quotation marks — the “penalties clause” — modifies. Every other circuit to address the question believes that the penalties clause modifies “Federal criminal statute.” That means that if a defendant was sentenced for crack prior to August 2010, he or she is eligible to seek a sentence reduction.

Not the 11th. Instead, the Circuit held if the statutory minimum for the defendant’s sentence under the FSA would not have changed – say, the indictment claimed 40 grams of crack, which would have been a five-year minimum post-FSA as well as pre-FSA – a defendant is not eligible for § 404 relief.

To make matters worse, the 11th held that just because it is a “covered offense” does not necessarily mean that a district court can reduce a sentence. Any reduction must be ‘as if sections 2 and 3 of the Fair Sentencing Act…” The 11th said “the ‘as-if’ requirement imposes two limits relevant to these appeals. First, it does not permit reducing a movant’s sentence if he received the lowest statutory penalty that also would be available to him under the Fair Sentencing Act. Second, in determining what a movant’s statutory penalty would be under the Fair Sentencing Act, the district court is bound by a previous finding of drug quantity that could have been used to determine the movant’s statutory penalty at the time of sentencing.”

jackson200624Four defendants were involved In the case the 11th decided, Jones, Johnson, Allen and Jackson. (I say this because an inmate contacted me a few days ago to complain that I had written about United States v. Jones, but he had heard the 11th had also ruled on the “Allen case,” and what about that one?).  Four defendants, only one awful ruling.

Two of the four defendants had juries that did not make a drug finding. In that case, the Circuit said, the district court’s stratospheric holding at sentencing (287 grams of crack for one guy, 75 kilos of crack for the other) made each ineligible for the FSA.

One can only hope that the defendants will take the lopsided circuit split this case creates to the Supreme Court. For now, it is just another illustration of why the 11th Circuit is an terrible court  in which a defendant can find himself.

United States v. Jones, 2020 US App. LEXIS 18828 (11th Cir. June 16, 2020)

– Thomas L. Root

Short Rockets – Update for June 18, 2020

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SOME SHORTS FROM LAST WEEK…

rocket190620Crack Retroactivity: Monae Davis won release a year ago when a district court gave him a retroactive crack sentence reduction under Section 404 of the First Step Act. However, he has lived under a cloud since then because the government appealed, arguing that because his offense involved 1.5 kilos of crack, he was not eligible for a Section 404 reduction (because his Guidelines would not change).

The question of eligibility has haunted Section 404 applicants since First Step passed. Does 404 relief turn on whether only on whether the punishment specified in the statute under which the defendant was charged has changed, or must the change mean that the Guidelines for the amount of drugs with which the defendant was involved changed?

Freedom is vastly preferred over prison, but Monae’s joy must have been muted, knowing as he did that a case in front of the Court of Appeals could send him back to prison tomorrow (and I mean “tomorrow” in its most literal sense).

Luckily for Monae, two weeks ago his joy became unbounded. The 2nd Circuit joined the surge of courts of appeal disagreeing with the government’s draconian view of Section 404. The Circuit rejected the government’s argument that Section 404 eligibility turns on a defendant’s actual conduct, holding that “eligibility depends on the statutory offense for which a defendant was sentenced, not the particulars of any given defendant’s underlying conduct. Because the retroactivity meant that the Fair Sentencing Act now applied, and because the FSA modified the statutory penalties for Monae’s offense, he was eligible for Section 404 relief.

United States v. Davis, Case No. 19-874, 2020 U.S. App. LEXIS 17736 (2nd Cir June 5, 2020)

Drug “Safety Valve”:  Devin Hodgkiss pled guilty to distributing meth on an occasion in April 2018 and to possessing a firearm in furtherance of a drug trafficking offense in June 2018 (an 18 USC § 924(c) offense). He asked for “safety valve” sentencing under 18 USC 3553(f) to duck under the 10-year drug statutory minimum, but the district court denied him, holding that he was ineligible for the safety valve because he had possessed a gun as relevant conduct.

safetyvalv200618[Background: The “safety valve,” found in 18 USC § 3553(f), permits a drug defendant who meets certain limiting criteria (light criminal history, no leadership role, no violence, no gun, etc) to be sentenced without regard to statutory minimum sentences (and with a Guidelines break as well)].

Last week, the 8th Circuit reversed, holding that Devin was entitled to the safety valve despite its requirement that the defendant not have possessed a firearm “in connection with the offense.”

“Relevant conduct,” the Circuit said, “is a concept developed by the Sentencing Commission… The ‘safety-valve‘ limitation on statutory minimums, however, appears in an Act of Congress that is not governed by definitions in the sentencing guidelines. Therefore, to determine whether Hodgkiss possessed a firearm ‘in connection with the offense,’ 18 USC 3553(f)(2), we must consider what the statute means by ‘the offense’.”

The 8th concluded that the term “offense” should be strictly defined as “offense of conviction.” Here, Devin was convicted of distribution based on an April 2018 drug sale. The § 924(c) was based on a June 2018 drug distribution. Therefore, the gun was not possessed in connection to the drug conviction. He still faced a mandatory minimum of five years for the gun, but the 10-year statutory minimum no longer applied.

United States v. Hodgkiss, Case No. 19-1423, 2020 U.S. App. LEXIS 17874 (8th Cir June 8, 2020)

– Thomas L. Root

Does the Fox Guarding the Henhouse Know Anything About Chickens? – Update for May 22, 2020

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6TH CIRCUIT ISSUES REMARKABLE CRACK SENTENCE REDUCTION RULING

hammer160509Everyone knows that a fox should not be delegated to guard the henhouse. But that’s because a fox knows what a chicken is (not to mention all of the delicious ways one may be prepared for dinner). But is it better when the fox, with all of a fox’s carnivorous ways, doesn’t have the first idea about the chickens he has been tasked to guard?

Back in 2006, Marty Smith pled guilty to a crack conspiracy involving more than 50 grams. Because Marty had a prior state drug conviction, he received a 240-month (that’s 20 years) mandatory minimum sentence, even though his Guidelines sentencing range would otherwise have been a still-substantial 168-210 months.

After the First Step Act passed, Marty applied for retroactive application of Congress’s 2010 Fair Sentencing Act, which punished crack cocaine offenses much more closely to powder cocaine offenses.  Marty’s sentencing court, the U.S. District Court for the Eastern District of Kentucky, agreed that Marty was eligible for a reduction, and that under the FSA, his sentencing range was 77-96 months (and the statutory mandatory minimum fell to 120 months). But the sentencing judge hardly cared: he held that Marty’s original 20-year sentence “remained appropriate.”

“Appropriate” to whom? Certainly not to the 6th Circuit, which last week reversed Marty’s sentence. Noting that the sentence that the district court reimposed is now twice Marty’s maximum Guideline range and 250% the bottom of his range (excluding the statutory minimum), the Circuit held that that “the district court’s explanation for denying Smith’s motion for a reduction does not adequately explain why Smith should not receive at least some sentence reduction.”

The district court did little more than recall it had examined the 18 USC § 3553(a)(2) sentencing factors back in 2007, the Circuit said, and found Marty had a high risk for recidivism based on his significant criminal history. The 6th held that “these considerations are accounted for within-the-guidelines calculation and therefore do not provide sufficient justification for maintaining a sentence that is twice the maximum of the guideline range set by Congress… This is especially true when the district court previously found the at-guideline range sentence to be appropriate.”

It is true that Congress changed the Guidelines through the Fair Sentencing Act, the 6th said, but “the fact that Congress was the actor that reduced Smith’s guideline range through the passage of the First Step Act, rather than the Sentencing Commission, if anything increases rather than decreases the need to justify disagreement with the guideline.”

foxhenhouse200522

Ohio State University law professor Doug Berman wrote in his Sentencing Law and Policy blog that “the district judge in this matter is Danny C. Reeves, who just happens to be one of the two remaining active members of the U.S. Sentencing Commission. There is a particular irony in the Sixth Circuit panel needing to remind a member of the USSC about which ‘considerations are accounted for within the guidelines calculation and therefore do not provide sufficient justification for maintaining a sentence that is twice the maximum of the guideline range set by Congress’.”

hammering200522The Sentencing Commission has been without a quorum since December 2018. Judge Reeves’ term expires on October 1, 2021. despite the fact that the Guidelines badly need revision (see the Commission’s obsolete policy on compassionate release, if you want an excellent example), perhaps there are worse things in the world than handing Judge Reeves a hammer for him to take to sentencing policy he may not completely understand.

United States v. Smith, Case No. 19-5281, 2020 U.S. App. LEXIS 15613 (6th Cir. May 15, 2020)

Sentencing Law and Policy, Sixth Circuit panel finds district judge gave insufficient justification for not reducing crack sentence after congressional reductions (May 16)

– Thomas L. Root

Virus or No, The World Keeps Turning on Hobbs Act and FSA – Update for March 31, 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.

MEANWHILE, A COUPLE OF IMPORTANT FAIR SENTENCING ACT/HOBBS ACT CASES…

Two appellate cases handed down last week would have been headliners any other time except for now, with the coronavirus crowding everything else out of the news.

crackpowder160606In 2001, Brandon Gravatt was convicted of conspiracy to possess with intent to distribute 5 kilograms or more of powder cocaine and 50 grams or more of crack cocaine (21 USC § 846). He pled guilty to the dual-object drug conspiracy charge, facing sentences of 10 years-to-life for the coke and 10-to-life for the crack. The court sentenced him to just short of 22 years.

After the Fair Sentencing Act became retroactive due to the  provision at Section 404 of the First Step Act (passed in December 2018), Brandon filed for a sentence reduction because the crack statutory minimum had fallen to five years. But the District Court denied his motion, because the 10-to-life sentence for the powder cocaine remained the same.

Last week, in a decision awaited by a lot of people, the 4th Circuit reversed. It held that even in a multi-object conspiracy like Brandon’s – where the penalties of one object (possession of crack) were reduced by the FSA while the penalties of the other (powder cocaine) were not – if the crack minimum sentence fell, Brandon was eligible for resentencing. The Circuit said because Brandon’s “sentence involved a covered offense under Section 404(a) [of the First Step Act], the district court should have reviewed Gravatt’s motion on the merits, applying its discretion under Sections 404(b) and (c).”

Of course, the 4th said, the quantity of powder cocaine in Gravatt’s case could mean the district court would decide not to lower his sentence. “Our decision today,” the Circuit said, “only requires that Gravatt’s sentence receive a substantive review. It should not be construed as expressing any view on how the district court should rule.”

Meanwhile, the 11th Circuit held last week that a Hobbs Act robbery was not a crime of violence for purposes of determining whether a defendant was a “career offender” under Chapter 4B of the Guidelines.

violence151213Joining the 6th and 9th Circuits, the 11th held that because the Guidelines definition of robbery and extortion only extends to physical force against persons, while under Hobbs Act robbery and extortion, the force can be employed or threatened against property as well, the Hobbs Act (18 USC § 1951) is broader than the Guidelines definition, and thus cannot be a crime of violence for career offender purposes.

Unfortunately, because 18 USC § 924(c) does include threats to property as well as to people, the 11th Circuit holding does not apply to defendants with § 924(c) counts supported by Hobbs Act convictions.

United States v. Gravatt, 2020 U.S. App. LEXIS 9053 (4th Cir Mar 23, 2020)

United States v. Eason, 2020 U.S. App. LEXIS 9096 (11th Cir Mar 24, 2020)

– Thomas L. Root

Defendant Can’t “Bank” Jail Time Against Future Crime – Update for March 19, 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.

BANKING ON IT

Ron Jackson was sentenced to 20 year for a crack cocaine offense back in 2003. After the First Step Act passed, he received a reduction in sentence to time served under the retroactive Fair Sentencing Act. Ron had served 177 months at the time.

getoutofjail200319Freedom after 15 years in prison wasn’t enough for Ron. His revised Guidelines under the Fair Sentencing Act were 120 months, and he wanted his revised sentence to be reduced to that level. He intended to “bank” the 57 months he had served in excess of 120 months against a future supervised release violation.

The district court refused to make a deposit into Ron’s “time served” bank account, holding that the sentencing factors of 18 USC § 3553(a) only supported a reduction to time served. “In particular,” the court said, “the need to protect the public and the need for deterrence dictate that a defendant not be allowed to “bank time,” which could allow him to commit further crimes without the fear of imprisonment.”

Ron appealed.

Last week, the 4th Circuit upheld the district court. Ron argued that the new sentence was procedurally unreasonable because the district court misapplied § 3553(a)’s protection-of-the-public and deterrence factors in considering banked time and substantively unreasonable because banked time is an improper sentencing factor. The Court, however, found that a district court is not forbidden from considering the impact of banked time when deciding whether to reduce a “sentence to time served or some lesser term.” Furthermore, “a defendant is not entitled to a sentence that would result in banked time,” the 4th said. “Even when a defendant’s conviction itself is vacated, there are situations where the defendant will not receive credit for the time during which he was incorrectly incarcerated.”

piggybankjailtime200319The appeals court was concerned that letting Ron “bank” his time would only encourage him to later “spend” the banked time by committing a further crime for which he had already paid. The Court of Appeals said, “the availability of banked time to offset a revocation sentence” is very relevant to the factor of deterring future offenses and protecting the public. “It is reasonable,” the Circuit said, “for a district court to think that the prospect of returning to prison under a revocation sentence would provide a measure of deterrence against future crimes of the defendant and thereby provide a measure of protection to the public.”

United States v. Jackson, 2020 U.S. App. LEXIS 8128 (4th Cir. Mar. 10, 2020)

– Thomas L. Root

A Short Rocket – Update for March 12, 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.

WE’VE GOT THE SHORTS…

rocket-312767Arson: In a decision approving filing a second-or-successive 2255 motion, the 6th Circuit last week held that because United States v. Davis is retroactive, a defendant who was convicted of 18 USC 844(i) arson and an 18 USC 924(c) use of a destructive device (a Molotov cocktail) could challenge the 924(c) conviction.

The 6th said the defendant’s “924(c) conviction was premised upon his use of a destructive device in furtherance of the 844(i) offense… The question is whether 844(i) has as an element the use, attempted use, or threatened use of physical force against the person or property of another… Arson under 844(i) does not appear to qualify as a crime of violence under 924(c)(3)(A) because it can be committed against “any building… used in interstate or foreign commerce,” including one owned by the arsonist… That means defendant’s 924 conviction must have been based on 924(c)(3)(B), which Davis invalidated…”

In re Franklin, 2020 U.S. App. LEXIS 6672 (6th Cir. Mar, 3, 2020)

manyguns190423Waiver: The defendant pled guilty to violating 18 USC 924(c) for brandishing a firearm during a crime of violence — theft from a firearms dealer under 18 USC 922(u). He filed a 2255 motion claiming after United States v. Davis, a 922(u) violation no longer counts as a crime of violence. But his plea agreement included the waiver of his right to contest the conviction and sentence “on any ground, including any claim of ineffective assistance of counsel unless the claimed ineffective assistance of counsel relates directly to this waiver or its negotiation, including any appeal… or any post-conviction proceeding, including but not limited to, a proceeding under Title 28, United States Code, Section 2255…”

Last week, the 7th Circuit ruled this collateral-attack waiver was valid and barred a Davis challenge to the conviction and sentences.

Oliver v United States, 2020 U.S. App. LEXIS 6760 (7th Cir. Mar. 4, 2020)

Fair Sentencing Act: The Defendants were sentenced for crack offenses under 21 USC 841(b)(1)(A) prior to the Fair Sentencing Act of 2010. After the First Step Act passed, they applied for sentence reductions. The government; argued they were not eligible because the amounts of crack they were found to have been involved with at sentencing were so great that their sentence exposure did not change.

crackpowder160606The U.S. District Court for the Eastern District of New York last week held that the defendants were eligible. It held that “the weight of authority supports Defendants’ interpretation. “[T]he majority of district court cases in this Circuit” have found “that a defendant is eligible for relief under the First Step Act based upon his offense of conviction, as opposed to his actual conduct… Decisions from other circuits also favor Defendants’ interpretation. See United States v. White, 2019 U.S. Dist. LEXIS 119164 (S.D. Tex., July 17, 2019) (collecting over 40 cases across the nation that agree with defendants’ interpretation of ‘covered offense’).”

The EDNY court said it “joins the chorus of district courts to hold that eligibility under… the First Step Act is based on the crime of conviction and not a defendant’s actual conduct. Both defendants were convicted of violating 21 USC 841(b)(1)(A), the statutory penalties for which were modified by the Fair Sentencing Act. They are both therefore eligible for a sentence reduction under the First Step Act.”

United States v. Pressley, 2020 US Dist. LEXIS 34973 (EDNY Feb 28, 2020)

ACCA Recklessness: The Supreme Court last week granted certiorari to a case asking whether an offense that involves physical force that is used recklessly – that is, conduct undertaken with a conscious disregard of a substantial and unjustifiable risk – is a crime of violence for Armed Career Criminal Act purposes.

A prior case asking the same issue was recently dismissed after the defendant/petitioner died.

Borden v. United States, Case No. 19-5410 (certiorari granted Mar. 2, 2020)

– Thomas L. Root