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FSA Resentencings Reflect District Court Confusion – Update for March 11, 2019

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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.

FAIR SENTENCING ACT RESENTENCINGS ALL OVER THE MAP

As prisoners who were sentenced for crack offenses before the August 2010 effectiveness of the Fair Sentencing Act (FSA) are discovering, district courts are all over the map in interpreting the First Step Act provisions that make the FSA retroactive.

crackpowder160606Here’s one problem: A number of prisoners seeking retroactive FSA application were sentenced under the mandatory pre-United States v. Booker guidelines. Are their guidelines still mandatory on resentencing?

And another: Virtually all of the eligible defendants have indictments that specified “5 grams or more” or “50 grams or more” of crack – the standard for mandatory minimums before FSA – but had judges finding at sentencing that the amount of crack in their cases was much higher, such as “400 grams or more.” Before the Supreme Court’s 2013 Alleyne v, United States decision, a Presentence Report finding of 400 grams would subject the defendant to a 10-to-life sentence no matter what the indictment said. Alleyne said that the facts supporting a mandatory minimum sentence had to be found by a jury beyond a reasonable doubt or admitted by the defendant. So what amount of crack should drive their new sentence, 50 or 400?

The issue district courts are grappling with is whether an FSA resentencing has to pretend that Booker and Alleyne were never decided, or whether a new FSA sentence has to be constitutional under all of those decisions handed down since the defendant was first sentenced.

Three district court decisions in the last week or so make it clear that those questions are still up in the air. In United States v. Glore, the government argued that because a defendant who was charged with 5 grams or more had been found in his PSR to have had 46 grams, he was not eligible for a sentence reduction under the retroactive FSA, because the 46 grams still required a 5-year minimum sentence under the FSA’s 28-gram threshold. The government said Alleyne should not apply, because it was decided well after the original sentence was imposed.

badjudge160502Citing United States v. Fleurival, the district court rejected the government argument, holding that “the government has the prerogative to argue that even if a defendant is eligible for a First Step reduction, the court should decline to exercise the broad discretion given it by the First Step Act, and refuse to reduce a defendant’s sentence. But its argument that a defendant is not eligible because the sentencing court might have elected to calculate his statutory penalties in a way that now is unlawful, and back then would have been illogical, is unpersuasive.”

Meanwhile, in United States v. Newton, a Virginia district court ruled that although the defendant was originally sentenced under pre-Booker mandatory guidelines, his new sentence under the retroactive FSA should be decided under advisory guidelines and the sentencing factors in 18 USC 3553(a). The government, comparing the FSA resentencing to an 18 USC 3582(c)(2) sentence reduction, argued that Dillon v. United States made it a limited resentencing, and the court had to pretend that the law on the day of the original sentencing remained the law at resentencing.

The district court rejected this argument, noting that the Sentencing Commission said in January that while courts would have to settle whether the FSA resentencing was subject to Dillon, district judges should nevertheless “consider the guidelines and policy statements, along with other 3553(a) factors, during the resentencing.”

In a New York case last week, United States v. Davis, the government argued the defendant was not eligible for relief under the First Step Act because his actual offense conduct involved over 1.5 kilos of crack, which even under the FSA would trigger a 10-life sentence under 21 USC 841(b)(1)(A). The government hypothesized that if the current FSA had been in place when Mr. Davis committed his crime, his indictment would have alleged “280 grams or more of cocaine base” instead of “50 grams or more,” and thus still would have triggered the higher  841(b)(1)(A) penalties.

release160523The court rejected the government’s argument out of hand, holding that “it is the statute of conviction, not actual conduct, that controls eligibility under the First Step Act.” The defendant won his release.

But the foregoing views are not universally shared. Last week, a Florida district court held in United States v. Potts that a defendant who had been charged only with a “detectable amount” of crack, which carried no mandatory minimum, was nevertheless subject to a 10-year minimum sentence because his presentence report found he was responsible for 125 grams. The district court concluded that First Step’s provision making the FSA retroactive does not “expressly provide for a full or plenary resentencing or for a reconsideration of original sentencing determinations.” Instead, “although Defendant is eligible for a reduced sentence under Fair Sentencing Act, he is not entitled to a full resentencing, and all other determinations made at the time of his sentencing must remain unchanged.” The court cited United States v. Delaney and United States v. Kamber, but neither of those decisions hold that an FSA resentencing is limited like a 3582(c)(2) resentencing.

There is going to be a lot of litigation before the parameters of the FSA resentencing are firmly and finally set.

United States v. Davis, 2019 U.S. Dist. LEXIS 36348 (W.D.N.Y. Mar 6, 2019)
 

United States v. Delaney, 2019 U.S. Dist. LEXIS 28792 (W.D.Va. Feb. 22, 2019)

United States v. Fleurival, 2019 U.S. Dist. LEXIS 20057 (W.D.Va. Feb. 6, 2019)

United States v. Glore, 2019 U.S. Dist. LEXIS 35838 (E.D.Wis. Mar. 6, 2019)

United States v. Kamber, 2019 U.S. Dist. LEXIS 15691 (S.D.Ill. Jan. 31, 2019)

United States v. Newton, 2019 U.S. Dist. LEXIS 33356 (W.D.Va. Mar. 1, 2019)

United States v. Potts, 2019 U.S. Dist. LEXIS 35386 (S.D.Fla. Mar. 6, 2019)

– Thomas L. Root

So What’s The Second Step? – Update for March 6, 2019

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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, SECOND STEP – CRIMINAL JUSTICE REFORM STILL DEBATED

Psychology professor Keith Humphreys wrote in the Washington Post last week that even after the First Step Act, the Feds still imprison seven times as many inmates as in 1980.

Postgraphic190307Critics complained that First Step would leave the nation “overwhelmed with violent crime.” But Humphreys asked why the federal government should imprison anyone at all. “In reality,” he wrote, “virtually every murder, rape, assault and battery is charged under state law and results in imprisonment at the state or local level. The federal prison system holds only 1.8% of U.S. inmates serving time for violent crimes… It is implausible that the number of and deserved sentence length for such offenses are seven times greater than they were before the federal prison population exploded.”

Noting that the federal criminal code has exploded with white-collar crimes, carjacking, DVD piracy, and street-corner drug dealing ¬– all offenses that states punish as well – Humphreys suggests that “the extremely broad coalition that supported the First Step Act can reasonably aim higher in its next round of proposed reform, returning the federal prison system to its traditional role as an important – but small – part of the U.S. correctional system.”

softoncrime190307Meanwhile, the ultra-progressive Socialist Worker last week complained that First Step “is more of a tip toe than a first step. But… no matter how ineffective, First Step is a sign of changing times. It wasn’t too long ago that any politician who favored prison reform would be labeled as ‘soft on crime’. First Step reflects a lessening of the tough-on-crime rhetoric…”

It is virtually impossible to count the number of people benefitting from the retroactive Fair Sentencing Act Sec. 404 of the First Step Act) but last week The Providence Journal reported that “so far, 14 Rhode Islanders convicted under stiff mandatory-sentencing laws have gained early release under the newly enacted federal law called the First Step Act…”

Washington Post, The new criminal justice law will modestly shrink prison populations. Should we go further? (Feb. 25)

Socialist Worker, Is First Step a Step Forward? (Feb. 25)

Providence Journal, ‘First Step’ toward freedom for R.I. drug offenders (Mar. 2)

– Thomas L. Root

Employers Commit to Hire Felons After First Step, But Much Remains to be Done – Update for February 4, 2019

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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.

HOUSEKEEPING CONCERNS, LOWER EXPECTATIONS, AFTER FIRST STEP

Now that the First Step Act is law, the question becomes what is next at the federal level and what policy innovations can state governments develop to continue the national momentum toward a more efficient and effective justice system.

Rosie190204The next order of business, according to The Hill, is for the Senate to confirm William Barr as Attorney General. Barr would be responsible for selecting a new director for the Bureau of Prisons, as well as for ensuring that the BOP accurately administers the codified risk assessment system for low-level, non-violent offenders who are eligible for release, and provide these inmates with the programs required by the Act. The statutory deadline for adopting the risk-assessment system is five and a half months away.

While the sentencing reforms contained in the First Step Act were secondary to the prison reforms that are to be administered by the Dept of Justice, further sentencing improvements are possible through the U.S. Sentencing Commission. However, the Commission has lacked a quorum since last December. The acting chair, Judge William Pryor of the 11th Circuit, is currently awaiting renomination by the White House and confirmation by the Senate. Until the Commission gains two more commissioners, it will be unable to adopt any Guidelines amendments. The Commission customarily issues amendments every April, which become effective November 1st unless Congress vetoes them ahead of time. Only twice in its 30-year history has the Commission failed to adopt any Guidelines amendments. The most recent time was 2017, when the Commission – as it does now – lacked a quorum.

Meanwhile, conservative billionaire industrialist Charles Koch, who spearheaded business support for First Step, has challenged a broad coalition of business groups is to hire workers with criminal backgrounds in the wake of First Step’s passage.

Koch has enlisted the support of the Society for Human Resource Management, the U.S. Chamber of Commerce, the National Retail Federation, the National Restaurant Association and the American Staffing Association. Together, the groups represent businesses that employ roughly 60% of the American workforce.

First Step made changes in the 2010 Fair Sentencing Act retroactive, allowing an estimated 3,000 people still serving long convictions for crack cocaine to petition for a reduction in their sentences. The provision allowed Matthew Charles, whose case was widely publicized in 2017, to exit prison at the end of 2018. Michael Holley, a federal defender who worked on Charles case, said that Charles was an ideal candidate for sentencing reduction, and his case was ideally positioned to be heard right away.

release160523“It was all primed for the government to look at,” he said. “We’d had all this litigation in the past year… so the judge was fully aware of his case and the prosecutor was fully aware of the case.” The government responded to the Charles petition ahead of the deadline to indicate no opposition the Charles’ request, Holley said, allowing him to get out even more quickly.

For other people, the process will take longer. The Federal Public Defenders Offices nationally have compiled a list of people in their records who might be able to benefit from the law, and attorneys in the office are reviewing the cases for anyone they find to be eligible.

Prosecutors are able to contest a defendant’s eligibility, and can argue that an individual does not deserve a sentence reduction, meaning the process, like 18 USC 3582(c)(2) proceedings, may get protracted.

The Hill, Federal criminal justice reform is now law: What comes next? (Jan. 26)

Law360, For Inmates, Sentencing Reforms Bring Hope And Frustration (Jan. 27)

CNBC, Koch network leads coalition urging businesses to hire former inmates (Jan. 27)

– Thomas L. Root

Fair Sentencing Act Retroactivity Benefits Are Broad – Update for January 31, 2019

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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.

FAIR SENTENCING ACT RETROACTIVITY HELPING CAREER OFFENDERS, TOO

Section 404 of the First Step Act, which authorizes the retroactive application of the 2010 Fair Sentencing Act to people sentenced for crack cocaine offenses before its enactment, is already opening the jailhouse door for some inmates.

... had nothing on crack hysteria.
… had nothing on crack hysteria.

Prior to 2010, crack cocaine was treated by the law with a level of hysteria that made “reefer madness” seem rational. A defendant caught with 10 grams of crack was treated as though he had a kilo of powder cocaine. The Fair Sentencing Act, passed in 2010, reduced this 100:1 ratio of crack to powder to 18:1, a ratio still untethered to reality but the best the bill’s sponsors could negotiate with some Senate holdouts. Still, the Act meant that a defendant had to be caught with 28 grams for a mandatory minimum five years in prison rather than a mere 5 grams.

The other concession the bill’s sponsors had to make in order to ensure the measure’s passage was to agree that the Act would be prospective only, that is, apply only to people sentenced after the measure was enacted. It took eight years for another bill, this one the First Step Act, to do what should have been done in 2010, and that is to treat the guy sentenced on August 1, 2010, the same as the guy sentenced two days later.

The Sentencing Commission has lowered the drug guidelines twice since 2010, and each time made the change retroactive. However, retroactivity did not help guys who had mandatory minimum sentences under 21 USC § 841(b)(1) that would no longer be as onerous if the Act had passed. Likewise, a lot of defendants had had two qualifying prior cases, and were thus considered career offenders under the Guidelines. Career offenders have been deemed by the courts to not have been sentenced under the drug quantity guidelines, and thus the Sentencing Commission’s changes to those guidelines did not benefit them.

But now, a weird effect of the retroactive Fair Sentencing Act is giving hope to guys who sentenced as Guidelines career offenders in crack cases.

Logan's going to the street...
Logan’s going to the street…

Logan Tucker was convicted in 2001 for a crack offense. His original 262-month sentence was driven not by a statutory mandatory minimum, but rather by the Guidelines career-offender provision. Although Logan’s sentence for a crack offense was driven by the Guidelines rather than a statutory mandatory minimum provision, he was not previously eligible for a 2-level reduced sentence due to retroactive Guideline changes because of his career offender status.

But last week, Logan got his break. His sentencing judge ruled that Logan was originally sentenced for a crack offense, and the Fair Sentencing Act lowered the statutory maximum he would have faced. The career offender guidelines, strangely enough, are set under USSG § 4B1.1 by the statutory maximum sentence a defendant faces. Logan’s new lower statutory maximum effectively lowed his career offender guideline.

Logan’s judge imposed a reduced sentence of 188 months, the low end of the new guidelines range, and let him walk out of the courtroom a free man (or as free as supervised release lets one be). Notably, the government in this case conceded that the First Step Act authorized the reduced sentence (although, being prosecutors to the end, the AUSAs urged the court to exercise its discretion not to reduce Logan’s original sentence).

Order, United States v. Logan, Case No. 3:00-cr-00246 (S.D. Iowa, Jan. 23)

– Thomas L. Root

First Step Act Beneficiaries By The Numbers – Update for January 25, 2019

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SENTENCING COMMISSION RELEASES FIRST STEP CHECKLIST, IMPACT STUDY

imageThe Romans had a phrase for it: “Cui bono?” Last week, the U.S. Sentencing Commission tried to answer that question about the First Step Act.

The extra seven days of good time granted by the Act will benefit the most inmates, about 142,500 federal prisoners (79% of the 180,390 federal prison population), excluding only people with life sentences or sentences of less than a year and a day (which are ineligible for good time under 18 USC 3624[b][1]). The earned time credit the Act awards for completing programs that reduce recidivism is in second place. The Commission estimates that it will benefit about 106,000 eligible inmates (about 59% of the population).

The retroactive Fair Sentencing Act provision of the First Step Act only touches about 2,660 inmates, but it has an outsized effect on racial disparity: 90% of whom are black.

elderly180517The elderly offender home detention program expanded by the Act has 1,880 inmates who are currently eligible (the right age, right offenses and right amount of time served). Of course, the EOHD program, unlike the other First Step programs, will see an influx of additional inmates who reach the right age and service of sentence.

The Commission also issued an 8-page fact sheet answering questions about implementing the sentencing portions of First Step. In it, the USSC notes that First Step requires no changes in the Guidelines (which is a good thing because the 7-member Commission is down to only two voting members, leaving it unable to approve any new Guidelines until the Senate approves additional commissioners).

USSC, Sentence and Prison Impact Estimate Summary (Jan. 18)

USSC, ESP Insider Express: First Step Act (Jan. 18)

– Thomas L. Root

Reading First Step A Little More Carefully – Update for January 3, 2019

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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.

SOME EASTER EGGS – NOT ALL GOOD – IN THE FIRST STEP BILL

software_easter_eggIn computer software and media, an Easter egg is an intentional inside joke, hidden message or image, or secret feature of a work. It is usually found in a computer program or video game.

The First Step Act text raced through the Senate and House, and was signed by the President, in four days. It was difficult to be sure that the available version of the Act – and there had been at least three even before the Senate passed a fourth on Dec. 18 – was the latest.

The final version has a few tweaks, previously unnoticed revisions and poorly-drafted parts that were finally noticed last week. Some are confusing, a few are interesting, but others are  rather ugly.

The good: It has always been gospel for people seeking reductions in sentence under 18 USC 3582(c)(2) because of the changed drug tables that Guidelines career offenders and people with 851 enhancements were blocked from the benefits of the reductions. Guidelines career offenders have their offense levels set on a scale of 12 up to 3, depending on the statutory maximum sentence of the underlying offense. A change in drug quantity Guidelines did not affect the stat maximum, so career offenders’ offense levels did not change.

retro160110The retroactivity of the Fair Sentencing Act – part of First Step – changes the statutory maximum. It used to be that 5 grams of crack got you 5 to 40 years. Now, anything under 28 grams is 0-20 years. More than 50 grams got you 10-life; now 50 grams is 5-40, and 10-life only starts after 280 grams. The effect for a lot of guys, who were convicted of “at least 5 grams” or “at least 50 grams,” is to drop the statutory maximums, and therefore reduce their career offender ranges from 37 to 34 or 34 to 32.

Because the retroactivity of the Fair Sentencing Act requires that a court “impose a reduced sentence as if… the Fair Sentencing Act of 2010… [was] in effect at the time the covered offense was committed,” it appears that Guidelines career offenders with the right numbers in their indictments may be entitled to lower sentences, as well as the straight USSG 2D1.1 crack guidelines people.

The same stepdown from 21 USC 841(b)(1)(A) to (b)(1)(B), and from (b)(1)(B) to (b)(1)(C) may well let people with 851 enhancements get lower sentences as well.

narrow190103That’s a great gift. But not so great is language in First Step Sec. 102(b)(2) that suggests that the extra seven days a year does not have to be applied by BOP until late July 2019, when the Attorney General is required to have a risk assessment program adopted. The interpretation of the subsection is capable of being interpreted to applying only to earned-time credits, but the BOP has a history of interpreting statutory language to the inmates’ detriment (see the 2010 Supreme Court Barber v. Thomas decision).

Perhaps even worse is the apparent squishiness of the Elderly Offender Home Detention program. People who think the EOHD is a brand new bauble are mistaken: First Step is not writing on a clean slate.

The definition of “elderly offender,” unchanged (except for dropping the age requirement to 60), has been around since 2008 in The Second Chance Act. Second Chance authorized an EOHD pilot program of two years’ duration, run at a single institution. The terms are set out at 34 USC 60541(g), and should be reviewed by any inmate interested in the program.

The parts of the definition of an “eligible elderly offender” which were not changed by First Step give the BOP a lot of discretion. For example, if the BOP does not “determine that release to home detention… will result in a substantial net reduction of costs to the Federal Government,” the prisoner would be deemed ineligible. 34 USC 60541(g)(5)(A)(vi). This could exclude some people at the younger end of the age range who are especially skilled at a UNICOR job or some other maintenance position valued by the particular institution.

ripper190103Likewise, to be eligible, an offender must be “determined by the Bureau of Prisons to be at no substantial risk of engaging in criminal conduct or of endangering any person or the public if released to home detention.” 34 USC 60541(g)(5)(A)(vii). This criterion makes perfect sense in a perfect world: who wants Jack D. Ripper to return to the house next door?  But in the real world, this provision grants the BOP virtually unbridled discretion. If it predicts that a drug defendant has a substantial risk of peddling some more pot, or a fraudster will likely run a three-card monte game from his front porch, what judge would ever rule otherwise? What the subsection really says is that the BOP can send who its lower-level staff want to send and deny those who staff want to deny.

 Parenthetically, I witnessed the operation of the 2-year pilot program, run at FCI Elkton in Lisbon, Ohio. In one memorable denial, a 79-year old man, 10 years into a 15-year marijuana sentence – who had had multiple strokes, suffered from heart disease and hearing loss, and had gone through multiple chemotherapy treatments for unrelated cancer, was denied the pilot EOHD program because of violence in his criminal history. It seemed that in 1949, as a hot-blooded youth, he had robbed a corner grocery store.

“You’re a danger,” the Elkton case manager told the minimum-security septuagenarian, “based on your robbery conviction” more than a half-century before. And that was that.

The BOP did not release a guiding program statement for the Elkton EOHD experiment, just a one-page release for prisoners. One can only hope for more detail, more consistency, and more common sense from the full-blown EOHD.

Enrolled Bill, First Step Act of 2018 (Dec. 21)

BOP, Elderly Offender Home Detention Pilot Program (Feb. 5, 2009)

– Thomas L. Root

Congress is Back to Work, with Criminal Justice Reform Still Pending – Update for July 9, 2018

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CONGRESS RETURNS TO TOWN WITH CRIMINAL JUSTICE REFORM STILL ON ITS PLATE

The House and Senate were not in session last week, as legislators celebrated the July 4th holiday however they do it. The Senate returns today, and the House tomorrow, with the criminal justice debate still hot, and an announcement about a new Supreme Court justice looming.

grassley180604A recap: The House has passed the FIRST STEP Act, which proposes a number of prison reforms, including a full 54 days a year of good time, better compassionate release and elderly prisoner release policies, and credits for programming that can be used to earn more halfway house and home confinement. The bill is stalled in the Senate, because the senior Republican and Democrat on the Judiciary Committee – Charles Grassley (R-Iowa) and Dick Durbin (D-Illinois) – do not want the FIRST STEP’s prison reform without sentencing reform bundled along with it.

The sentencing reform proposals are contained in the Sentencing Reform and Corrections Act of 2017. SRCA proposes to make the Fair Sentencing Act retroactive for crack defendants sentenced before the 2010 FSA, to unstack 18 USC 924(c) sentences, and to reduce a substantial number of the mandatory minimums in 21 USC 841(b), which are generally known as “851 enhancements.” As of the end of June, Grassley and Durbin were pressing President Trump to support SRCA as well as FIRST STEP, and we were observing that as of 9 pm this evening (when Trump names his Supreme Court nominee), he is going to need a lot of help from Grassley to get the nominee through the Judiciary Committee.

Trump is needed, because all indications are that Senate Majority Leader Mitch McConnell does not intend to bring FIRST STEP or SRCA to a Senate vote without White House approval. If the bills are not voted on by the end of the year, they will die, and the whole process will have to start over next January.

sessions180215Of course, Attorney General Jefferson Beauregard Sessions III is dead set against any reduction of mandatory minimums or extension of the FSA, and his conflict with Jared Kushner, Trump’s son-in-law and advisor, over reform has not helped McConnell find his backbone. In a thoughtful opinion piece in The Washington Post last Thursday, Michael Gerson noted the success Texas have had with modifying harsh mandatory minimums, and suggested that the evidence means

that the criminal-justice views of the attorney general are far to the right of the Texas state legislature, which puts him in small and disturbing company. It means that Sessions’ opposition to sentencing reform is rooted in vindictiveness and ideology rather than a conservative respect for facts and outcomes. And it means that Sessions has learned nothing from federalism, which he seems to respect only when it fits his preconceptions.

Gerson argued that prison reform should succeed because of “trans-partisanship,” which is defined as “agreement on policy goals driven by divergent, deeply held ideological beliefs.” Liberals see racism and unfairness in the criminal justice system. Fiscal conservatives see wasted resources. Religious activists see damaged lives. Gerson wrote, “All these convictions converge at one point: We should treat offenders as humans, with different stories and different needs, instead of casting them all into the same pit of despair.”

trainwreck180305Also speaking practically, the magazine American Conservative last Friday noted that mandatory minimums and other policies that make America the incarceration capital of the world, a product of the lock-’em-up mentality, have “tarnished the image of Republicans and conservatives in the minds of many. Though Republicans have greatly increased their political power in recent elections, they have nevertheless alienated many of the fastest growing segments of the electorate, casting a pall across the impressive electoral successes of the past decade.”

In a lengthy article, the authors called for the “extension of conservative principles to criminal justice policies.” They observed that “right-leaning organizations, armed with polling data that show significant backing from many conservatives, are mobilizing on criminal justice issues. It’s time to leverage these efforts to rebuild the conservative identity. Perhaps no other policy area holds more potential than criminal justice reform.”

Washington Post, No more pits of despair. Offenders are still humans (July 4, 2018)

The American Conservative, Where the Right Went Wrong on Criminal Justice (July 6, 2018)

– Thomas L. Root

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