Tag Archives: fair sentencing act

Too Many Questions, Too Few Commissioners – Update for October 16, 2019

Leave a comment

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

DENIAL HIGHLIGHTS JUDICIAL SPLIT ON COMPASSIONATE RELEASE

compassion160208A key provision of the First Step Act allows federal courts to reduce sentences under the so-called compassionate release statutory provisions of 18 USC § 3582(c)(1)(A)(i) – which establishes an ‘extraordinary and compelling” reason standard – without needing a motion from the Bureau of Prisons. Ohio State University law professor Doug Berman said last week in his Sentencing Law and Policy blog that “if applied appropriately and robustly, this provision could and should enable many hundreds (and perhaps many thousands) of federal prisoners to have excessive prison sentences reduced.”

A decision last week in the Southern District of Iowa denying Les Brown compassionate release illustrates the conundrum. Under 28 USC § 994(t), the Sentencing Commission is directed to define “the criteria to be applied and a list of specific extraordinary and compelling examples” for grant of § 3582(c)(1)(A)(i) motions. The Commission defined four examples, one medical, one due to age, one due to family circumstances, and one catch-all (that “there exists in the defendant’s case an extraordinary and compelling reason other than, or in combination with, the reasons described in subdivisions (A) through (C)).”

Now the problem: The USSC has not updated its definition since the First Step Act passed. Instead, its policy statement still simply guides the Bureau of Prisons (which has traditionally been very resistant to an Sentencing Commission guidance). The new procedure mandated by the First Step Act calls for new guidance, but the Commission remains mute.

noquorum191016Sadly, there’s a reason for the USSC’s quiescence. The Commission cannot amend its policy statement because the agency lost its quorum last December, about two weeks before First Step passed, and it is still two commissioners short of a quorum. The Trump Administration apparently sees the Commission as a backwater for which no urgency exists in nominating replacement commissioners. For the foreseeable future, the Commission remains impotent, and the compassionate release policy cannot not be updated.

Some district courts have concluded this means the Commission lacks any applicable policy statement dictating when a judge can grant compassionate release. These courts have decided that this means the district judge can consider anything — or at least anything the BOP could have considered (whether it did or not) — when assessing a defendant’s motion.

But others have held that First Step merely lets them grant a motion for compassionate release if the BOP Director could have done the same under the guidelines and the old Program Statement. These courts hold that judges may not stray beyond the four bases listed in USSG §1B1.13.

Sentencestack170404Last week’s ruling by Senior Judge Robert Pratt is a thoughtful opinion about compassionate release, issued in response to defendant Les Brown’s motion to reduce his 510-month sentence. That sentence was pumped up by a 300-month second 18 USC §924(c) sentence, one that could no longer be imposed since passage of the First Step Act. While Judge Pratt finds that “much about Defendant’s situation is extraordinary and compelling,” he concluded “the Court cannot exercise its discretion to grant release at this time.”

The Judge calculated that even if First Step let him retroactively reduce the second § 924(c) sentence from 300 months to 60 months (which the Act doe not permit), Les would still face a total of 210 months in prison. As of now, he has served only 167 months, “a long stretch by any measure, and perhaps more than appropriate for Defendant’s crimes. Regardless, because Defendant would still be in prison under modern law, any sentencing disparity created by § 924(c) stacking does not, at least yet, provide an ‘extraordinary and compelling reason’ for compassionate release.”

Judge Pratt suggested that Les could come back at 210 months to make his argument. For what it’s worth, I believe that by then, Congress will have revisited the issue and made the § 924(c) sentencing change retroactive, just as it did with the Fair Sentencing Act’s changes to crack minimums.

Prof. Berman complained that “Judge Pratt refuses to use the legal tool available to him to reduce Brown’s sentence, and so Brown is now still slated to serve nearly another 30 years in prison(!) that neither Congress nor any judge views as in any way justified by any sound sentencing purposes.” He is correct. However, until higher courts resolve the conundrum of the missing USSC guidance (or the Commission regains a quorum, and fixes the statement on its own), the present confusion is going to work to the detriment of a lot of inmates.

United States v. Brown, 2019 U.S. Dist. LEXIS 175424 (SD Iowa Oct. 8, 2019)

– Thomas L. Root

Fair Sentencing Act Decisions Split the Courts – Update for August 26, 2019

Leave a comment

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

FAIR SENTENCING ACT LIMITATIONS ISSUE CREATING WIDE SPLIT IN FEDERAL COURTS

In my August 12th post, I noted the unfortunate 5th Circuit ruling in United States v. Hegwood. Hegwood held that a Fair Sentencing Act resentencing under § 404 of the First Step Act was a “limited resentencing,” and required the district court to apply all of the sentencing factors and law that applied at the original sentencing, except for a lower drug quantity offense level.

FSAsplit190826Ohio State University law professor Doug Berman noted in his Sentencing Law and Policy blog last week that an overlooked district court decision from the 6th Circuit, United States v. Payton, goes the other way on this “important and consequential” issue. Although predating Hegwood by a month, Payton provides a useful perspective on the issue from the other side.

The Payton court noted that a number of district courts have ruled that the First Step Act, read in conjunction with the provisions of 18 USC § 3582(c)(1)(B), does not authorize a full resentencing. “But a growing number of courts have found just the opposite,” the Court said,  “that the First Step Act vests the Court with broad discretion to resentence defendants considering the 18 USC § 3553(a) factors, including the case law and Guidelines in effect today.” The district court cited a number of district court decisions in support of its decision.

crackpowder160606The district court held that “the only way to impose a reduced sentence is to consider the § 3553(a) factors and Guidelines, including the defendant’s record in prison… This interpretation is in keeping with the purposes of the First Step Act which was enacted, in part, to: provide a remedy for individuals subjected to overly harsh and prejudicial penalties for crack cocaine offenses; decrease the number of people caged in our overcrowded prisons largely because of the War on Drugs; and save taxpayer dollars.”

Professor Berman said, “It seems to me quite possible that this issue could be the first (of many?) matters related to the implementation of the First Step Act that makes its way to the U.S. Supreme Court.”

United States v. Payton, 2019 U.S. Dist. LEXIS 110292, 2019 WL 2775530 (E.D.Mich. July 2, 2019)

Sentencing Law and Policy, Another perspective on the scope of First Step Act crack resentencing (Aug 20)

– Thomas L. Root

5th Circuit Restricts Fair Sentencing Act Reductions – Update for August 12, 2019

Leave a comment

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

5TH CIRCUIT DECISION SHARPLY LIMITS FAIR SENTENCING ACT RESENTENCINGS

Guidelines red text and magnify glassAn arcane but very important question raised by the retroactive sentencing of people with pre-Fair Sentencing Act crack cases has been whether it is an entirely new sentence being imposed – called a plenary resentencing – or just a limited resentencing that cannot consider anything other than a lower Guidelines score.

This is critical, because for a lot of people falling under Sec. 404 of the First Step Act, which authorizes retroactive resentencing under the Fair Sentencing Act of 2010, were sentenced back in the bad old days before Alleyne protected against mandatory minimums being applied by the judge acting without a jury, and even before Booker, when the Sentencing lines were mandatory. A full resentencing would let people get resentenced with full constitutional protections. A limited resentencing would require the judge to apply many of the processes and rules that have since been held to violate a defendant’s rights.

Most district courts have conducted full resentencings, but as I warned a few months ago, some were pretending that the FSA resentencings were nothing different from 3582(c)(2) Guidelines sentence reductions. Last week, the 5th Circuit became the first appeals court to address the issue, and the results were not pretty.

The Circuit concluded that “the First Step Act does not allow plenary resentencing…” It ruled that the plain text of Sec. 404 only “grants a district judge limited authority to consider reducing a sentence previously imposed. The calculations that had earlier been made under the Sentencing Guidelines are adjusted ‘as if’ the lower drug offense sentences were in effect at the time of the commission of the offense. That is the only explicit basis stated for a change in the sentencing.”

Comparativecrack190425The 5th said the limits in Sec. 404 “make the First Step Act similar to Section 3582(c), which opens the door only slightly for modification of previously imposed sentences for certain specified reasons, including the lowering by the Sentencing Commission of the sentencing range that was in effect for the defendant at the time of initial sentencing.” Relying on the 2010 Dillon v. United States  Supreme Court case, the Circuit concluded “Congress intended to authorize only a limited adjustment to an otherwise final sentence and not a plenary resentencing proceeding… The district court decides on a new sentence by placing itself in the time frame of the original sentencing, altering the relevant legal landscape only by the changes mandated by the 2010 Fair Sentencing Act. The district court’s action is better understood as imposing, not modifying, a sentence, because the sentencing is being conducted as if all the conditions for the original sentencing were again in place with the one exception. The new sentence conceptually substitutes for the original sentence, as opposed to modifying that sentence.”

Ohio State University law professor Doug Berman said Saturday in his Sentencing Law and Policy blog that “as a matter of sound policy and practice, I think it makes more sense to approach these cases as full resentencings with all subsequent changes in both applicable sentencing laws and relevant sentencing facts available for, and integral to, the judge’s resentencing decision. Otherwise, as seems to be the case in Hegwood, a defendant already subject to the undue harshness of the old 100-1 crack mandatory minimums is still forced to endure the undue harshness of other problems with the guidelines that have been fixed since his original sentencing.”

The best we can hope for is that other circuits will split in the other direction, setting this issue up for Supreme Court review.

United States v. Hegwood, Case No. 19-40117 (5th Cir. Aug. 8, 2019)

Sentencing Law and Policy, Fifth Circuit articulates limiting account of FIRST STEP Act crack resentencing (Aug. 9, 2019)

– Thomas L. Root

DOJ Just Trying to be Fair – Update for July 30, 2019

Leave a comment

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

SOME AUSAS ARGUING AGAINST FSA RETROACTIVE SENTENCES

Inmates filing for retroactive application of the Fair Sentencing Act to crack sentences imposed before August 2010 have run into a confusing morass of judicial interpretations and U.S. Attorney’s Office positions.

A substantial number (1,610, according to the Dept. of Justice a week ago) have received sentencing reductions. A number of others in a few districts are sitting in limbo, on file for months without action. Still others are like Monae Davis, who walked out of prison March 7 because of the retroactive Fair Sentencing Act (included as Section 403 of the First Step Act) . But as Monae looks for work and re-connects with his family, prosecutors are working to undo the resentencing that shaved six years off his 20-year prison sentence, because the government says the amount of drugs they handled was too large to qualify for a reduced sentence.

smails190730Monae pled guilty to selling 50 grams or more of crack, resulting in his 20-year sentence. Under the retro FSA, that carries a minimum sentence of five years, less than half the time he has already served. But prosecutors say Monae should not get a break, because in his plea deal he admitted to handling between 1.5 kilograms and 4.5 kilograms. That’s too high, even under current law and guidelines, to qualify for a sentence reduction.

DOJ told Reuters last week that it is just trying to ensure that prisoners seeking relief under the First Step Act aren’t treated more leniently than defendants now facing prosecution. DOJ said prosecutors now have a greater incentive than previously to bring charges that more closely reflect the total amount of drugs they believe to be involved. “This is a fairness issue,” a DOJ spokesman said.

Speaking of fairness, Attorney General William Barr announced last Thursday that the BOP would resume executions of inmates sentenced to death in December, with five lethal injections scheduled through the end of January 2020. “The Justice Department upholds the rule of law — and we owe it to the victims and their families to carry forward the sentence imposed by our justice system,” Barr said in a statement.

Reuters, As new U.S. law frees inmates, prosecutors seek to lock some back up (July 23)

Washington Post, Justice Department plans to restart capital punishment after long hiatus (July 25)

9TH CIRCUIT HOLDS THAT ELUDING IMMIGRATION ONLY HAPPENS AT PORTS OF ENTRY

Oracio Corrales-Vazquez, a Mexican citizen, walked into the US over the mountains east of Tecate, California. He only made it about four miles into U.S. territory when Customs and Border Patrol picked him up. Oracio was charged with eluding examination or inspection by immigration officers” in violation of 8 USC § 1325(a)(2).

immigrant190730Last week, a 9th Circuit panel reversed his conviction, holding that an alien who crosses into the country at a non-designated time or place is not guilty of a § 1325(a)(2) offense. Rather, to convict a defendant under § 1325(a)(2), the government must prove that the alien’s criminal conduct occurred at a time and place designated for “examination or inspection by immigration officers,” that is, at a port of entry open for inspection.

United States v. Corrales-Vazquez, 2019 U.S. App. LEXIS 22063 (9th Cir. July 24, 2019)

– Thomas L. Root

I Felt The Earth Move Last Friday… Or Did I? – Update for July 22, 2019

Leave a comment

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

LAST FRIDAY, SOME PRISONERS FROM SOMEWHERE WERE PERHAPS RELEASED (WHO CAN SAY?) AND DOJ ROLLED OUT PROPOSED RISK ASSESSMENT SYSTEM 

Friday, July 19th was the day – a full 210 sunrises after President Trump signed the First Step Act into law. And, as required on that day, the Bureau of Prisons at long last credited federal inmates with the additional seven days per year promised them in the Act, and the  Dept. of Justice  released the risk assessment it proposes to have the Bureau of Prisons use to determine the likelihood that inmates will commit new offenses upon release.

A really big day… or was it?

yellowribbon190722Tie a Yellow Ribbon… Rahm Emmanuel may not have said it first, but he made it famous when he counseled his then-boss, President Obama, to never let a good crisis go to waste. DOJ dragged its feet in setting up a panel to implement the risk assessment model that is at the heart of the First Step Act’s earned time credit program (which lets federal prisoners earn extra time off their sentences for successfully completing programs that reduce recidivism). The Department as well fought hammer and tong to avoid crediting inmates with the extra good time Congress always meant them to have (but did not because DOJ interpreted a poorly-written statute as harshly as possible), an error corrected in First Step. And DOJ has opposed countless motions under the newly-retroactive Fair Sentencing Act for reductions of draconian prison terms.

Nevertheless, when faced with a July 19 deadline even it could not deny, DOJ did not miss the chance last Friday to trumpet its successes under First Step, chief among them that “over 3,100 federal prison inmates will be released from the BOP’s custody as a result of the increase in good conduct time under the Act. In addition, the Act’s retroactive application of the Fair Sentencing Act of 2010 (reducing the disparity between crack cocaine and powder cocaine threshold amounts triggering mandatory minimum sentences) has resulted in 1,691 sentence reductions.”

tsunami190722So where was the flood of prisoner releases at the end of last week? As I heard from  people at a dozen or more institutions, no one seemed to be leaving. This was corroborated by my own observation. With over 7,700 people on the LISA newsletter email list, I expected over 100 notifications from BOP on Friday of people whose Corrlinks email accounts were closed because they had been freed (such a notice is sent whenever someone is released and his or her Corrlinks account is closed). Instead, I got only 17 such messages.

Here’s what happened. As FAMM president Kevin Ring told the Wall Street Journal,  most of the 3,100 inmates released Friday were already among the 8,300 BOP inmates in halfway houses or the 2,200 people on home confinement. Thus, alleged tsunami of prisoner releases – while reducing BOP population overall – was a barely-noticeable ripple at the institutions.

Plus, as Mother Jones magazine complained last week, not all of last Friday’s releasees got to go home. “Roughly a quarter of them are not United States citizens,” the magazine said, “and many will instead be sent straight to immigration detention to face deportation proceedings, which could take years.” As it turns out, USA Today reported, 900 released inmates were transferred to ICE or state authorities.

tortoise190722Inmate Sentence Recomputation More Tortoise Than Hare…  More troubling are the numerous reports I have gotten from inmates and their families that BOP has not yet completed the recalculation of good time for most of the 151,000 inmates still in institutions. One inmates father reported that the BOP’s Grand Prairie, Texas, Designation and Sentence Computation  Center told him that the agency is processing each inmate’s new time manually, and that it is able to complete no more than 5,000 a month.

The reason for the glacial pace of recalculations is unclear, but it is hard to avoid noting that the BOP has had seven months to prepare for award of the additional good time. How the agency is unable, after seven months of preparation, to automate recalculation through a rather simple computer algorithm is puzzling.

recid160321I see a PATTERN Here… One of First Step’s marquee accomplishments is to establish a system that ranks each inmate’s risk of being a recidivist, and then tracks that risk throughout the inmate’s sentence. The inmate (unless he or she falls in one of the 60-plus “ineligible” categories) may take programs identified by the BOP as proven to reduce recidivism, and get up to 15 days credit a month for doing so. The credit may be used to reduce the length of his or her incarceration by up to 12 months, and beyond that, to earn the inmate extra halfway house or home confinement time.

Before the program is implemented, the DOJ must adopt a system to rank prisoners’ recidivism risk. On the last afternoon of the 210-day period First Step gave DOJ for doing so, it unveiled its proposed system, which goes by the unwieldy name “Prisoner Assessment Tool Targeting Estimated Risk and Needs.” Luckily, the name collapses conveniently into the acronym “PATTERN.”

PATTERN will classify a BOP prisoner into one of four Risk Level Categories (“RLCs”) by scoring him or her in much the same way security and custody levels are calculated by the BOP. PATTERN does this by assigning points in 17 different categories. The highest possible score (like golf, no one wants a high score) is 100. The lowest score is -50.

PATTERNB190722

This is roughly how it works: PATTERN has four different predictive models, 1) general recidivism for males; 2) general recidivism for females; 3) violent recidivism for males; and 4) violent recidivism for females. The Report noted that the base recidivism rate for all offenders is roughly 47% for general and 15% for violent recidivism.

The categories in which points are scored include (1) age of first conviction, (2) age at time of assignment, (3) prison infractions, (4) serious prison infractions, (5) number of programs completed, (6) number of tech or vocational courses completed, (7) UNICOR employment, (8) drug treatment, (9) drug education, (10) FRP status, (11) whether current offense is violent, (12) whether current offense is sex-related, (13) criminal history score, (14) history of violent offenses, (15) history of escapes, (16) voluntary surrender, and (17) education.

Generally, any score of -50 to +10 is a minimum recidivism risk, 11 to 33 is a low recidivism risk, 34 to 45 is a medium recidivism risk, and 46 or higher is a high risk. Its designers say “the PATTERN assessment instrument contains static risk factors as well as dynamic items that are associated with either an increase or a reduction in risk… PATTERN is a gender-specific assessment providing predictive models, or scales, developed and validated for males and females separately. These efforts make the tool more gender responsive, as prior findings have indicated the importance of gender-specific modeling.”

This means that as an inmate goes without getting disciplinary reports for infractions of prison rules, completes programs, keeps up with payment of fines and restitution, takes drug classes and gets older, his or her RLC category should fall. Even high and medium RLCs can earn credit for taking programs at the rate of 10 days per month, but once the RLC falls to low, that rate increases to 15 days per month.

PATTERNA190722So what BOP programs will build earned time credit? No one has said yet, but the PATTERN report offers clues. The PATTERN categories suggest that UNICOR employment, drug classes, GED and vocational programs ought to count, given PATTERN’s emphasis on importance of completion of those courses in the point system.

PATTERN is not yet a done deal. What happens next is a 90-day public comment period on PATTERN rules. Final rules will issue by Thanksgiving, with BOP staff being trained in applying PATTERN. Do not expect any PATTERN assessment to be done for real until Martin Luther King Day.

Dept. of Justice, Department of Justice Announces the Release of 3,100 Inmates Under First Step Act, Publishes Risk And Needs Assessment System (July 19)

Wall Street Journal, Justice Department Set to Free 3,000 Prisoners as Criminal-Justice Overhaul Takes Hold (July 19)

Bureau of Prisons, Population Statistics (July 18)

Mother Jones, Congress Helped Thousands of People Get Out of Prison Early. But Many of Them Will Probably Be Deported Right Away (July 19)

USA Today, Federal government releases more than 2,200 people from prison as First Step Act kicks in (July 19)

Dept. of Justice, The First Step Act of 2018: Risk and Needs Assessment System (July 19, 2019)

– Thomas L. Root

Retroactive Crack Sentence Reductions Pass One Thousand – Update for June 12, 2019

Leave a comment

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

SENTENCING COMMISSION ISSUES CRACK RETROACTIVITY UPDATE

The Sentencing Commission last Friday issued a report on releases under the Fair Sentencing Act retroactivity granted by the First Step Act. Since First Step became law last December, the courts have granted 1,051 crack sentence reductions.

crackpowder160606The breakdown by district shows Middle and Southern Florida, South Carolina and Virginia are the places to be. Those five districts accounted for about 29% of all grants. One third of the 94 districts contributed only  2.5% of the total, with 20 districts not granting a single motion.

What was missing from the USSC analysis was a figure on the number of motions denied, which would have provided a much clearer picture of any discrepancies among the districts in how the Fair Sentencing Act retroactive reductions were being applied.

The sentence reductions averaged 29 months, with the 5th Circuit courts averaging the best at 35.3 months and the 1st Circuit being the worst at 22.6 months. Over 91% of all defendants getting time cuts are black.

U.S. Sentencing Commission, First Step Act of 2018 Resentencing Provisions Retroactivity Data Report (June 7, 2019)

– Thomas L. Root

First Step Tidbits – Update for June 5, 2019

Leave a comment

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

FIRST STEP ROUNDUP

Looking for a Loophole: First Step news from last week: First, a cautionary tale for anyone who thinks there is a magic potion that will make the sentencing changes in the First Step Act retroactive.

loophole190605As with most legislation the First Step Act represents countless compromises. Prominent among those were the deals made on retroactivity. The Act changed 18 USC § 924(c), which punishes people who use a gun in a drug crime or crime of violence with a mandatory consecutive term of five years (if the defendant was just carrying the gun), seven years (if the defendant brandished the gun) or 10 years (if the defendant actually shot it). All of that makes sense. The statute also imposes a mandatory consecutive 25 years on a defendant for a second conviction under 924(c).

The problem was lousy draftsmanship. Congress figured that it you got five years extra for a 924(c) conviction but did not learn your lesson, you ought to get a minimum 25 years on the second conviction. But the provision was written so that any subsequent conviction under 924(c) got you the enhanced time. Say that today you sell some dope on the street corner, with a gun stuffed in your pants. Then, tomorrow you do the same thing. The U.S. Attorney will charge you with two distribution counts and two 924(c) counts, one for each day. Before the First Step Act, you would get a sentence for the drugs, a consecutive five years for today’s 924(c) count, and a consecutive 25 years for tomorrow’s 924(c). That was not the way it was supposed to work, but U.S. Attorneys don’t care what Congress meant. They only care about what Congress wrote.

The First Step Act changed 924(c) to make it clear that the 25 years can be added only if you had already been convicted of the first 924(c) before you committed the second one. Likewise, it changed portions of 21 USC § 841(b)(1) to make the former mandatory life sentence into a 25-year sentence, and the former 20-year sentence into a 15-year sentence. But to sell some of the troglodytes in the Senate (yes, we mean you, Sen. Tom Cotton [R-Alabama]) on supporting First Step, the changes in the mandatory minimums were not made retroactive. Only the 2010 Fair Sentencing Act – which like First Step had the retroactivity taken out in order to rustle up enough support to pass the measure – was made retroactive in First Step.

trog190605Devan Pierson thought he could wriggle through a loophole. He got sentenced to life for a drug distribution case, due to his criminal history and the presence of guns. On appeal, he argued that because the First Step Act had made life sentences into 25-year maximum sentences, his life sentence – which was still on direct review – should be reduced.

Last Friday, the 7th Circuit disagreed. “Subsection 401(c) states that the amendments in that section ‘shall apply to any offense that was committed before the date of enactment of this Act, if a sentence has not been imposed as of such date of enactment.’ In common usage in federal sentencing law, a sentence is “imposed” in the district court… In the First Step Act, Congress chose language that points clearly toward that same result: the date of sentencing in the district court controls application of the new, more lenient terms.”

* * *

Power of the Media: I wrote last week about some district courts holding that reductions in crack sentences under the retroactive Fair Sentencing Act must rely on the “offense controls” theory instead of the “indictment controls” theory. If you are in that kind of fix, it is good to have friends in the media.

In 1994, in the depths of the war on drugs, Sonny Mikell picked up a third federal drug conviction in Florida and was handed a mandatory minimum sentence of life in prison. Although he was only found guilty for 50 grams by a jury, the sentencing judge agreed with the presentence report that held him culpable for 290 grams (for sentencing purposes).

When the First Step Act made the Fair Sentencing Act retroactive, Sonny applied for relief. His sentencing judge granted it promptly, sending Sonny home right from the hearing. But the government appealed to the 11th Circuit, apparently intending to argue that the “offense controls” theory (and the 290 grams) should govern.

Stopthedrugwar.org picked up the story, and ran it week. Citizen Truth republished it. The next day, the government dismissed its appeal without explanation. Citizen Truth may not be Kim Kardashian, but it got the job done.

* * *

You’re My Bestie: Finally, the Daily Beast picked up the story of Rufus Rochell, a man from inauspicious circumstances who befriended Conrad Black when the two were together at FCI Coleman. Black, a wealthy Canadian publisher and friend of Trump, was pardoned by the President a few weeks ago.

bff190605Rufus and Conrad both worked in the education department, Rufus as a law clerk and Conrad as a tutor helping inmates study for their GEDs. “They had conversations about history and education. And they found humor in the subtle absurdities of prison life, such as the thunderous rain that fell whenever inmates were asked to report for lawn duty.”

When Conrad was released on bail after a favorable SCOTUS decision, a rumor spread that he had been arrogant and condescending as an inmate. At Conrad’s request, Rufus wrote a letter refuting the claim, and praising his selflessness.

Now that Conrad has been pardoned, Rufus is hoping for a break through the First Step Act or executive clemency, and is looking to Conrad for support. According to the Daily Beast, nothing has yet been forthcoming.

I have heard a lot of guys being released who promised to send friends money, to keep in touch, even get together after it was all over. It does not often happen. You would hope, however, that when someone is powerful, rich and close to power, especially when he himself has been blessed with good luck, such a promise would not be forgotten.

United States v. Pierson, 2019 U.S. App. LEXIS 16296 (7th Cir. May 31, 2019)

CitizenTruth.org, Why Are Prosecutors Trying to Send a First Step Act Ex-Prisoner Back to Prison? (May 28)

Motion to Dismiss, United States v. Mikell, Case No. 19-11459-G (11th Cir. May 29, 2019)

Daily Beast, Trump Pardoned Billionaire Conrad Black but Left His Prison Buddy Behind

– Thomas L. Root

Fair Sentencing Act Resentencing Takes Ominous Turn – Update for May 28, 2019

Leave a comment

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

INTRACTABLE PROBLEMS LOOM ON FAIR SENTENCING ACT RESENTENCINGS

A good number of crack defendant resentencings have breezed through district courts since the First Step Act authorized the retroactive application of the 2010 Fair Sentencing Act (“FSA”) to people sentenced for crack prior to August 2010.

The concerns of a few dissident district judges, however, may be gaining traction, jeopardizing future FSA resentencings.

crackpowder160606The problem is this: Just about all of the pre-FSA indictments alleged the defendant had “five or more” or “fifty or more” grams of crack. Back then, five or more bought a defendant a minimum 5 years, while 50 or more was good for a 10-year minimum. But what the indictment alleges is one thing. What the presentencing report says is something else altogether, and the PSR’s amount of drugs (used for setting the Guidelines range) is what the district court usually finds.

On FSA resentencings, some defendants have convinced courts that if the indictment said “five or more grams” of crack, for instance, their sentences should be based on five grams. Some sentences have fallen dramatically as a result.

Dan Blocker argued to his judge that when a defendant seeks an FSA sentence reduction, the relevant question is not how much crack was involved in the offense, but instead only how much was charged in the indictment.

Some other courts have grappled with this argument, but Dan’s court took it by the horns. In an interim decision, the district court complained Dan’s approach – the “indictment-controls” theory – “misreads the statute and is demonstrably inconsistent with Congress’s intent.” The district judge said the First Step Act specified that a sentence reduction is allowed only for a “covered offense,” that is, “a violation of a Federal criminal statute…” Violation of the statute is the criminal conduct, the court said, not the indictment. Thus, the court must follow the offense-controls theory, not the indictment-controls theory.

Comparativecrack190425

The court said the question is what sentence would have been imposed had the FSA been in effect when Dan sold the crack. The answer, the court held, does not turn on what the actual indictment charged, but rather on what it would have charged had the FSA governed the case. The court speculated that if the FSA had been in effect, Count 1 would have charged that the conspiracy involved 280 grams or more, not just 50, and other counts would have charged the higher amounts – 28 grams and 280 grams – listed in the FSA. “The only reason the actual indictment used the lower amounts,” the court said, “was that those were the amounts included in the statute at that time – the indictment tracked the statute.”

The higher amounts might have affected Dan’s decision to plead guilty, the court said, thus requiring a hearing to figure out what Dan might have done in response to what the indictment might have said.

If what the indictment in a pre-August 2010 crack said controlled resentencing, the court complained, “every crack defendant sentenced before the Fair Sentencing Act took effect would be eligible for a reduction…” and the First Step Act would “provide a windfall sentence reduction to pre-August 2010 defendants that people sentenced after 2010 would not get. “Congress could not have intended to treat crack defendants this much more favorably than powder defendants.

The so-called offense controls theory will almost certainly be appealed. Major appeals questions about retroactive FSA resentencings, even if resolved in the defendants’ favors, are likely to result in inconsistent circuit decisions, and could tie up resentencings for a year or better.

United States v. Blocker, 2019 U.S. Dist. LEXIS 79934 (N.D.Fla., Apr. 25, 2019)

– Thomas L. Root

Judge Weinstein (As Usual) Provides Detailed Opinion on Crack Resentencing – Update for May 1, 2019

Leave a comment

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

WISDOM OF THE ANCIENTS

weinstein160516At age 92, Senior Judge Jack Weinstein is not only still on the Eastern District of New York federal bench, but he remains one of the most industrious and thoughtful federal judges in America, a jurist prone to issuing detailed and resource-rich decision.

In a 15-page opinion hand down last week, Judge Weinstein released Cheyenne Simons under the retroactive Fair Sentencing Act after Chey had served 11 years of his 12-year sentence. This does not sound like such a big deal (a 9% discount on the original immurement), except that as a Guidelines career offender with 50 grams of crack, Cheyenne had faced a 262-month minimum Guidelines advisory sentencing range term in 2008, when Judge Weinstein sentenced him to 144 months instead. What’s more, because of a quirk in how EDNY was applying 18 USC 924(c)’s mandatory consecutive sentence (for using a gun in a drug trafficking crime) back then – a quirk since remedied by the Supreme Court in Abbott v. United States –  Chey did not get a 5-year mandatory consecutive sentence for the gun charge then. Unfortunately, he was obligated to get it now.

Cheyenne had pled to 50 grams of crack, but at the 2008 sentencing, the court attributed over 500 grams of crack to him for Guidelines sentencing purposes. The government argued that under the FSA resentencing, the 500 grams made him subject to the new 280-gram 10-year minimum. Judge Weinstein refused:

Any argument that Simons is ineligible for relief on the basis that his actual conduct involved distribution of 280 grams or more of cocaine base, triggering the 841(b)(1)(A) penalties and a 10-year minimum term of imprisonment, is unsound. Statutory penalties are determined by facts submitted to a grand jury, a trial jury, or established by a guilty plea. Findings by a judge… may be used to determine a sentence within the statutory penalties, but do not establish statutory penalties and cannot change the mandatory minimum sentence now applicable.

release160523Although the 924(c) penalty left Chey’s Guidelines at 262-327 months, Judge Weinstein held that the retroactive FSA gave him the discretionary authority to reduce the sentence. Because Chey had “taken substantial steps during his period of incarceration to achieve the rehabilitative goals sought by the original sentence imposed,” Judge Weinstein set him free.

United States v. Simons, 2019 U.S. Dist. LEXIS 67964 (EDNY, Apr. 22, 2019)

– Thomas L. Root

You Leave When I Say You Can Leave – Update for March 12, 2019

Leave a comment

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

WHO SAID YOU COULD GO HOME?

Winning immediate release doesn’t necessarily get you anywhere. That was Darren Golson’s experience a week or so ago.

noleave190312His judge granted Darren’s retroactive Fair Sentencing Act motion and ordered his release on Feb. 25. But when he showed the halfway house the judge’s order, it called some unnamed Bureau of Prisons employee, who ordered them to refuse to let Darren leave.

Darren whipped up a quick emergency motion, essentially asking his judge to figuratively plant his size 12 in the halfway house’s butt. The irate judge got on the phone, asking the halfway house who there would accept service of the “show cause” order the court was fixing to issue.

The answer was that no one wanted to see such an order. The halfway house hustled Darren out the door at 3:57 pm on the 27th, only two days late.

Motion, US v Golson, Case No. 2:01-cr-47 (E.D.Va. Feb. 27, 2019)
Order, US v Golson, Case No. 2:01-cr-47 (E.D.Va. Feb. 28, 2019)

– Thomas L. Root