Tag Archives: FIRST STEP Act

BOP Issues Earned Time Credit Program List – Update for January 20, 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.

BOP ROLLS OUT FINAL PIECE OF FIRST STEP ACT

teeth200120For those who have been living in a cave for the past 18 months, let’s start with some background. Congress passed the First Step Act in December 2018, the first significant criminal justice legislation in 30 years or so. The public relations centerpiece of the Act was a program to be implemented by the Bureau of Prisons that would assess inmates not just for security risks (something that the BOP has done since the Feds took their first prisoner – the guy who stole General Washington’s wooden teeth – almost two and a half centuries ago), but for the inmate’s risk of recidivism and his or her programming needs that would presumably reduce the chance of reoffending.

The program would then match the inmates with prison programs that would address those needs. Inmates who successfully completed the various programs would be granted “earned-time credits” which could be used for additional halfway house or home confinement. The first 12 months’ worth of credit could even be applied to reduce sentence length by a year.

tortoise190722The Act gave the BOP ample grace period to adopt the assessment tool and implement programming, but time finally ran out yesterday. And just under the wire, last Wednesday the Dept. of Justice announced implementation of the final recidivism and needs assessment program, known by the acronym PATTERN. The final version contains several minor changes from last summer’s draft, alterations made in response to public comments filed last fall. Two days later, the BOP published a list of the programs it currently has or will be adopting, and announced the beginning of earned time credits for federal inmates for completing programing intended to reduce recidivism.

“Beginning today, inmates will have even greater incentive to participate in evidence-based programs that prepare them for productive lives after incarceration,” Attorney General William Barr was quoted as saying in last week’s DOJ press release. “The First Step Act is an important reform to our criminal justice system, and the Department of Justice is committed to implementing the Act fully and fairly.”

The principal change in PATTERN was to add a dynamic measure of an inmate’s “infraction free” period during incarceration, adding a number of prior programs and UNICOR to the programs that benefitted a prisoner’s PATTERN score, and removing metrics for age at first arrest and voluntary surrender from the PATTERN assessment matrix. PATTERN will also no longer look at whether an inmate participated in education or drug treatment programs to measure initial recidivism risk.

Critics had complained that the draft’s focus on an inmate’s prior run-ins with the criminal justice system weighted the system so that minorities generally would be classified as greater recidivism risks than would white inmates.

EBProg200120The list of “evidence based” programs that can qualify an inmate for earned time credits, published last Friday on the BOP site, identified 70 programs, almost all of which will be available at all BOP facilities. The list included some unsurprising ones, such as working at UNICOR, vocational programs, all drug programs, GED and ESL. As well, many new programs, many aimed as cognitive behavior therapy to address everything from food disorders, insomnia, gambling and anger management.

Each program entry in the BOP release lists the program, duration, number of hours’ earned time credit the program earns, locations where the program is offered, and needs the program addresses. For example, one of the 70 programs is called BRAVE (Bureau Rehabilitation and Values Enhancement), a cognitive behavior therapy program for young males on their first offense, will run for six months, 20 hours per week, and earn an inmate completing the program 500 hours of earned time credit. The program, which addresses programs with antisocial peers and cognitions, will be offered at FCI Beckley and Victorville.

The publication contains no explanation of how the BOP intends to convert earned time credit hours into days, which is what First Step contemplated. In the case of a continuing activity like UNICOR, the program list states inmates can earn 500 earned time credit hours, but it does not specify over what period of time or if that 500 hours is just a one-time award.

falsehope170206The First Step Act authorized the BOP to award earned-time credits retroactively to the adoption date of the Act, but the agency has said nothing about doing so. Inmates have had high hopes that such credits would be granted, but long-time observers – including the undersigned – held out little hope that the BOP would take any discretionary step that conferred a benefit on inmates. So far, even a little hope has proven to be too much.

The BOP list of programs is available here.

DOJ, Department of Justice Announces Enhancements to the Risk Assessment System and Updates on First Step Act Implementation (Jan. 15)

BOP, Evidence-based Recidivism Reduction (EBRR) Programs and Productive Activities (PA) (Jan. 17)

– Thomas L. Root

BOP Slouches Toward First Step Programming – Update for January 13, 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.

EARNED TIME CREDITS – THE DEVIL’S IN THE DETAILS

devil200113Probably the biggest selling point used by First Step Act supporters when Congress passed the measure in December 2018 was that the bill would deliver evidence-based programming to reduce recidivism. The inmates would be assessed under a new program that accurately gauged their likelihood to be recidivists and their needs that should be met to reduce that likelihood. The inmates would benefit, the public would benefit, the overcrowded and understaffed prisons would benefit, the U.S. Treasury would benefit. Everyone’s a winner!

The programming to reduce recidivism, after more than a year of preparation, is supposed to begin in a week. But the devil’s in the details, and hope for a broad rollout that meets the expectations of First Step backers, let alone those of inmates, is dwindling rapidly.

recividists160314By now, virtually all inmates have undergone an initial assessment under PATTERN, the new risk and needs assessment program developed in response to the First Step Act. According to the Act (a provision now codified at 18 U.S.C. § 3621(h)(1)(B)), the Bureau of Prisons is to begin to expand the most effective evidence-based recidivism reduction programs and productive activities it currently offers and to add any new evidence-based recidivism reduction programs and productive activities necessary to effectively implement First Step by Jan. 20. Subsection (h)(2)(A) gives the BOP until Jan. 20, 2022, to provide such programming for all inmates. During the “phase in” period, priority placement in the programs is to go to people closest to their release date.

As an incentive for participating in the programs, the First Step Act provides eligible inmates with earned-time credits which can be used toward increasing pre-release custody (halfway house and/or home confinement) or swapping time inside the BOP for more supervised release. A Bloomberg Law article described it last week like this: “Earned time credits… do not reduce a prisoner’s sentence, per se, but rather allow eligible prisoners to serve their sentence outside prison walls.”

winner200113But for a lot of reasons the question of whether the BOP is anywhere close to meeting the First Step Act’s timetable remains open. First, as the BOP admitted two weeks ago, PATTERN has not yet been adopted in its final form. Although the BOP has promised to identify its existing programs that will award inmates earned-time credits, it has not yet done so. What’s more, a surprising large number of federal inmates will not be eligible to receive earned time credits because the BOP has determined they are excluded by one or more of the 65 categories of crime or immigration statute exempted from the program by Congress.

The current limits on time in a halfway house (up to 12 months) and home confinement (the lesser of six months or 10% of the sentence) specified in 18 U.S.C. § 3624(c) will not apply to earned time credits. Thus, an inmate can be released to more than a year of halfway house or home confinement after accumulating earned time credits.

Bloomberg Law reported last week that any earned-time credits inmates receive for completing programs prior to the final implementation of the PATTERN tool – whenever that will be – will not be eligible for redemption until the tool is implemented. What’s more, the article reported, “the ability to start earning credits may not actually come for most prisoners until even later than that, depending on how long it takes the BOP to apply PATTERN and create programming and productive activities and assign prisoners to them.”

prisonrace200113PATTERN was the subject of a House Judiciary Committee Oversight hearing last October, where some experts expressed concern about its “racial bias and lack of transparency, fairness, and scientific validity.” The Dept. of Justice has not said how close PATTERN is to being finalized, stating only that it “is currently undergoing fine-tuning.” Indications are that inmates that have been scored so far have been analyzed under a preliminary version of the tool. Last July, DOJ estimates were that the final PATTERN program would be in place by Thanksgiving 2019.

A further impediment to full implementation of earned-time credit program will be the availability of halfway house beds. In most of the country, there is a shortage of available halfway house beds for federal inmates. The Act provides no additional funding or resources for the BOP to increase the loss of halfway house beds, which was at crisis levels several years ago.

“The BOP has a long history of acting in ways that result in lengthier and less productive terms of incarceration despite the obvious will of Congress,” David E. Patton, executive director of the nonprofit Federal Defenders of New York, was quoted as saying by the Washington Post. “For decades the BOP took an unreasonably restrictive view of good time, resulting in thousands of years of additional overall prison time. For decades it refused to exercise the authority given to it by Congress to release incarcerated people who were terminally ill, infirm, or otherwise suffered from extraordinary circumstances… and for decades it has not provided enough vocational, educational, mental health, and substance abuse programming despite abundant need and lengthy waitlists.” Pointing to DOJ data, Patton said wait lists include 25,000 prisoners for prison work assignments, 15,000 for vocational and educational training and 5,000 for drug treatment.

The Washington Post said last week that almost half of BOP prisoners complete no programs, more than half don’t get needed drug treatment, more than 80% haven’t taken technical or vocational courses, and more than 90% have no prison industry employment, according to data.

Help-Wanted180221“The BOP is struggling to fulfill the requirements of the Act as the Bureau is still more than 4,000 positions short,” Shane Fausey, president of the American Federation of Government Employees Council of Prison Locals, told the Post. He complained of “abusive overtime and mandatory double shifts,” adding that requirements of the First Step Act have worsened the crisis.

BOP Director Kathleen Hawk Sawyer told the House oversight committee last October that the understaffing was over 3,700 vacancies and said resolving that “is among my highest priorities… but doing so will take time.”

Bloomberg Law, Insight: The First Step Act—Earned Time Credits on the Horizon (Jan. 9)

Washington Post, Federal prison reform has bipartisan support. But it’s moving slowly. (Jan. 9)

– Thomas L. Root

First Birthday for First Step – Update for January 10, 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.

ANNIVERSARY OF FIRST STEP

The first anniversary of the First Step Act, which passed just before Christmas, generated a few observations in the media. USA Today ran an opinion piece that said “the sweeping measure has succeeded over the past year in reducing the number of people serving unjust sentences in our federal prison system. It has been estimated that the measure would impact more than 12,000 cases a year.”

Michael Deegan-McCree, who heads The Bail Project and had worked with #cut50, wrote that the real achievement of First Step was that it led to bipartisanship in an era that lacks it. “From my vantage point, and that of many others who fought for the federal act, the true success of this legislation a year out is the example it has set for bipartisan cooperation in criminal justice reform on the state level — where nearly all incarceration cases begin and the majority remain. The legislation has given Democrats and Republicans political cover and the ability to fight for a system that champions treatment over punishment and rehabilitation over retribution.”

New York University law professor Rachel Barkow, a former member of the United States Sentencing Commission, wrote last week that further reform will require a “president who is committed to making criminal justice reform a top priority and uses the bully pulpit to educate the public about all the reforms that are needed as a matter of both fairness and public safety.”

Even so, she said, much of the problem is currently beyond anyone’s reach. “Right now,” she wrote, “the federal bench is overwhelmingly dominated by people who spent part of their careers defending the government and serving as prosecutors. While that is a commendable career choice and we want some of our judges to have that experience, things go awry when you have a bench that disproportionately has that experience.”

USA Today, A year out, First Step is powerful example for states of bipartisan criminal justice reform (Dec. 31)

Brennen Center, Breaking the Cycle of Mass Incarceration (Jan. 3)

– Thomas L. Root

How Shall I Release Thee? Let Me Count the Ways – Update for January 7, 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.

THE GOLDILOCKS OPTION

All of the New Year’s Eve revelers had not yet left Times Square when the first rumor of the new year landed in my email inbox. An inmate reader wrote: “The Bureau of Prisons is saying that even though the law now says that good time is to be applied based on length of sentence, the ‘rules’ say that they are to evaluate an inmate at the end of the year for good conduct, therefore it can only apply to time served.”

corso170112Not so fast, my friend. As the Old Man of 2019 disappeared through the door – and ‘good riddance!’ many of us thought  – the BOP issued a proposed change to 28 CFR § 523.20 it intends to follow in applying the changes in the good time statute (18 USC § 3624(b)(1)) brought about by the First Step Act. The notice, of course, was published in the Federal Register, where everyone was sure to see it.

Time out for some remedial government class, for those who sat in the back texting their friends. Congress passes bills, which the President signs. Those bills change federal law. Federal law is conveniently restated in the United States Code, which organizes the laws so that they are easy to find.

textinclass200107.jpgLaws quite often sweep broadly and are light on detail. Federal agencies, which are charged by Congress with seeing that the laws are carried out, are entitled to use procedures under the Administrative Procedure Act to adopt rules that give definition to the laws. Imagine Congress passes a law that broadcast licenses should be granted and renewed when the public interest, convenience and necessity requires it. (Actually it did, in § 307 of the Communications Act of 1934.) What the dickens does that mean? Congress delegated authority to the Federal Communications Commission to define what it means by rules adopted pursuant to the APA‘s procedures. Those rules are conveniently set out in the Code of Federal Regulations.

So, contrary to our reader’s perception, the ‘rules’ the BOP seeks to adopt should not contradict 18 U.S.C. § 3624(b)(1), but instead provide the detail needed to implement it. Rules are not laws, and – when a statute and a rule are inconsistent – a law always trumps a rule.

classisover200107Enough high school government class for now… In its Dec. 31 Notice, the BOP proposes to calculate an inmate’s “out date” at the time the sentence commences by assuming all good time will be earned (as it has always done). The actual award of the time for each year of sentence will come on the anniversary date of when the sentence started, after the BOP determines, in the words of § 3624(b)(1), that the inmate has shown “exemplary compliance” with BOP rules and policies. Practically speaking, this means the inmate received no disciplinary reports that took away good conduct time as a sanction.

The “exemplary compliance” standard is nothing new. In fact, the only changes in § 3624(b)(1) resulting from the First Step Act are that (1) prisoners earn up to 54 days of good conduct time each year of their sentences, not for each year they are actually in prison. This results in an extra seven days each year; and (2) credit for the last year of a term of imprisonment shall be given on the first day of the last year of the term of imprisonment.

threebears200107In last week’s Notice, the BOP proposed three alternatives for administering good conduct time under the changed law. The first alterative would be, because the changed statute no longer referred to a “portion of a year,” for the BOP to give no credit for the final part of a year an inmate served. The Bureau rejects this as “an erroneous and unfair interpretation” of the new law. In other words, this porridge was too hot.

The second alternative, the Bureau said, would be to interpret the new law to mean inmates get 54 days for the final part of a year, no matter how short. If a sentence were 38 months, for example, an inmate would get 54 days a year for each of the 3 years, and another 54 days for the last two months. The BOP rejected this interpretation as being too fair, because it “would result in some inmates receiving benefits incongruous with those received by others.” This porridge was too cold.

goldilocks200107The third alternative is the BOP’s Goldilocks choice, one the Bureau believes is neither too unfair nor too fair. The BOP proposes that 54 days’ good conduct time vest on each anniversary of the sentence. For the last year, however, the prorated good time would not be awarded until the last day of the sentence, so an inmate could still lose a part year’s good conduct time up to the time he or she walks out the door.

The BOP thinks this porridge is just right. However, the public may file comments agreeing or disagreeing  until March 2.

A couple of interesting factoids appear in the Notice: In the introduction to the rulemaking proposal, the BOP mentioned that the PATTERN risk and needs assessment program has not yet being adopted in final form. As well, the Bureau referred to the glacial pace of recalculating existing inmates’ sentences to add the 7 additional days of good conduct time per year each inmate was awarded by First Step:

Under section 102(b)(2) of the FSA, the recalculation of GCT credit was not effective until the Attorney General completed and released the risk and needs assessment system on July 19, 2019. Although this proposed regulation is not yet in effect, the Bureau re-calculated release dates beginning on July 19, 2019 under the statutory authority of the FSA. Based on these recalculations, 3163 inmates were released from Bureau custody on July 19, 2019; the Bureau is in the process of completing recalculations for the remainder of the inmate population based on the FSA authority, prioritizing recalculations by proximity of projected release date, and releasing inmates as appropriate according to the recalculated GCT release dates.

PB286-200107Of course, many people (your writer included) are at a loss to understand why recalculation of sentences has been such a laborious task. Certainly, even the BOP’s Packard Bell 286s ought to be able to recalculate sentences by running an algorithm that any boot-camp coder should be able to write between video games. But the bureaucracy plods on…

Good Conduct Time Under the First Step Act, 84 Federal Register 72274 (Dec. 31, 2019)

– Thomas L. Root

First Step Act Turns a Year Old – Update for December 26, 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.

ANOTHER YEAR OLDER AND DEEPER IN DOUBT

firststepB180814A year ago last Saturday, President Trump signed the First Step Act. A year later, I wish it was benefiting as many people in the system as hoped for by its proponents:

• First Step was intended to be just that, a first step. Follow-on legislation, S.697 (dubbed The Next Step Act), will improve prospects for job placement when people are released, is tied up in House and Senate subcommittees. With the 2020 presidential election season starting in two weeks, there is virtually no likelihood (Skopos Labs, the company that handicaps Congressional bills, gives it a 4% chance) that it will pass next year.

• First Step expanded the elderly offender home detention program enshrined in 34 USC § 60541(g)(5). This permits people over 60 years old who are nonviolent offenders to serve that last third of their sentences in home confinement. The rub is that the “two-thirds” referred to in the measure means two-thirds of the whole sentence. With good conduct time credits, a prisoner now serves only 85% of his or her sentence. It appears that no one thought carefully about it, because H.R.4018 was introduced this year to clarify things by permitting elderly offenders to go home at two-thirds of their net sentence (time to be served minus good time) instead of two-thirds of their total sentence. The measure passed the House by voice vote in October. Last week, the bill was put on the Senate Calendar of Business under general orders (the Calendar is a list of all measures, sequenced by order number, that are eligible for Senate floor consideration). Nevertheless, Skopos Labs gives the bill only an 8% chance of passage in 2020.

fairchancebanbox190906• Last week, Congress passed and the President signed the Fair Chance Act, which started life as HR 1076, but was later tucked into a massive defense spending. The bill bars the federal government and its contractors from asking about the criminal history of a job applicant prior to the extension of a conditional offer of employment.

• The Bureau of Prisons reports that so far, over 2,400 Fair Sentencing Act reductions have been granted (reducing prison time by 14,250 years), 380 elderly offender home confinement placements have been approved, 117 compassionate releases have been granted, and more than 1,700 new volunteers have been OK’d to work in institutions.

• Meanwhile, the BOP reported that Fiscal Year 2018 “cost of incarceration fee” per inmate was about $37,500 a year, which works out to about $102 a day. Multiplying this number by the FSA reduction of 14,250 years of prison time suggests that First Step’s crack retroactivity provision of has saved taxpayers around over $500 million.

• We have yet to see whether the PATTERN risk and needs analysis, proposed by the Dept. of Justice with great fanfare last July, and programming that earns prisoners additional time off sentences and in reentry programs will work as legislators hoped. Early reports have the Bureau of Prisons telling many more prisoners they are ineligible than anticipated by the bill, and warning that program credits may not be awarded for several years. Those reports – mostly from inmates and, while not confirmed, seem consistent across the system – are not encouraging.

money160118• Finally, The Sentencing Project reports that First Step’s authorization of $75 million per year – about $400 per prisoner – “falls far short of what is necessary to address the rehabilitative needs of people in prison. In July, the DOJ released data that dramatically highlighted the deficit in federal prison programming. Among the 223,000 people released from BOP custody from 2009 to 2015, 49% had not completed any programming while in custody and 57% of people in need of drug treatment had received no services.”

Reuters, Congress poised to pass bill lowering barriers to work for ex-offenders (Dec. 17)

Sentencing Project, One Year After the First Step Act: Mixed Outcomes (Dec. 17)

– Thomas L. Root

Another Circuit Finds For Fair Sentencing Act Defendant – Update for December 23, 2019

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COMMON SENSE EXTENDS ITS LEAD, WITH THE CURRENT SCORE 3-0

commonsense191223The 5th Circuit last week became the third appellate court to decide that whether a defendant’s pre-2010 crack sentence qualified for reduction under the retroactive Fair Sentencing Act depended on the amount of crack cocaine alleged in the indictment, not the amount found by the court at sentencing.

Andy Jackson was charged with distributing 50 grams or more or crack. But the presentence report (PSR) found him responsible for 402 grams of crack, meaning that he exceeded even the 280-gram threshold for a minimum 10-year sentence contained in the FSA. A defendant qualifies under § 404 of the First Step Act for a reduction only if he or she had a “covered offense.”

The government’s theory was that “what counts as a covered offense necessarily turns on facts specific to the defendant’s offense, not limited to what was charged in the indictment.” In other words, if the jury convicts on a count requiring a showing of 50 or more grams, but the PSR later finds – based on whatever slipshod hearsay-heavy and evidence-light standard the court may have employed at sentencing – that 500 grams were involved, then the defendant doesn’t have a “covered offense,” since the drug quantity as stated in the PSR exceeds even the new 280-gram threshold.

crackpowder191216The 5th Circuit soundly rejected that theory:

That approach doesn’t comport with the ordinary meaning of the statute, however. As stated above, a “covered offense” is “a violation of a Federal criminal statute, the statutory penalties for which were modified by section 2 or 3 of the FSA… that was committed before August 3, 2010…” Whether a defendant has a “covered offense” under § 404(a) [of the First Step Act] depends only on the statute under which he was convicted. If he was convicted of violating a statute whose penalties were modified by the Fair Sentencing Act, then he meets that aspect of a “covered offense.”

The 4th and 8th Circuits have already reached the same conclusion. No circuit has yet gone the other way.

United States v. Jackson, 2019 U.S. App. LEXIS 37126 (5th Cir., Dec. 16, 2019)

– Thomas L. Root

8th Circuit Says Indictment, Not PSR, Controls Crack Resentencing Eligibility – Update for December 16, 2019

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ANOTHER CIRCUIT HOLDS FSA RESENTENCING DEPENDS ON FACTS IN INDICTMENT, NOT IN THE PSR

The tide is slowly turning in favor of defendants for crack cocaine resentencings arising from Fair Sentencing Act (FSA) retroactivity, authorized a year ago (minus five days) in Section 404 of the First Step Act. A few weeks ago, the 4th Circuit held that eligibility for a sentence reduction depended on the amount of crack specified in the indictment, not what the court found at sentencing. Last week, the 8th Circuit reached a similar conclusion where the defendant had been charged with 50 grams of crack, but sentenced for 150 kilos of powder.

Back before the turn of the millennium, Maurice McDonald was charged with distributing more than 50 grams of crack, and convicted of distributing about 57 grams of cocaine base. When Maurice committed the offense in 1999, the statutory penalty for 57 grams of crack was 10 years to life in prison. He was sentenced to life in prison, but that was cut to 30 years in a prior Guidelines 2-level reduction. After First Step made the FSA retroactive, the statutory range for Maurice’s conviction fell to 5 to 40 years.

crackpowder191216

But the district court denied Maurice’s sentence reduction motion, because his 360 month-to-life Guidelines sentencing rang was based on the presentence report’s having found him responsible for distributing more than 150 kilos of powder cocaine. Because his sentence was driven by the 330 lbs. of powder described in the PSR, the district judge reasoned, Maurice was not eligible for a reduction under the retroactive FSA.

The 8th Circuit disagreed. Instead, it held, Maurice’s offense of conviction  is a “covered offense” under First Step Act Sec. 404 because (1) it is a violation of a federal statute specifying crack cocain; (2) the statutory penalties for that statute were modified by the FSA; and (3) the offense was committed before August 3, 2010. Consequently, Maurice was eligible for a sentence reduction on his count of conviction.

crackpowder160606The 8th wrote, “It is true, as the district court noted, that McDonald’s base offense level under the Sentencing Guidelines was based on more than 150 kilograms of powder cocaine, not cocaine base. But this Guidelines calculation does not change the fact that he was convicted… for distributing cocaine base in violation of 21 USC 841(b)(1)(A)(iii). The First Step Act applies to offenses, not conduct… and it is McDonald’s statute of conviction that determines his eligibility for relief.”

The Circuit explained that a district court considering a motion for reduced crack sentence under the First Step Act “proceeds in two steps. First, the court must decide whether the defendant is eligible for relief under Sec. 404. Second, if the defendant is eligible, the court must decide, in its discretion, whether to grant a reduction. That the court might properly deny relief at the discretionary second step does not remedy any error in determining ineligibility at the first step.”

lawnotjustice190213In a recent Southern District of Texas case, a district court denied a defendant a First Step Sec. 404 sentence reduction because of the weight of the crack found in the PSR, rather than what was alleged in the indictment. The defendant moved for reconsideration, explaining in detail that the weight of authority nationwide is trending in the direction of holding that it is the indictment, not the PSR, that governs eligibility for a sentence reduction.

Remarkably, the district court conceded the point, holding that “in the interest of justice and a spirit of ‘judicial comity’, the Court follows the majority of courts that have addressed this issue, determining that the eligibility under Sec. 404(a) turns on the offense not the defendant’s conduct. Therefore, the defendant’s motion for reconsideration is granted, finding that he is eligible for a reduced sentence under the Fair Sentencing Act.”

United States v. McDonald, 2019 U.S. App. LEXIS 36661 (8th Cir. Dec. 11, 2019)

United States v. Steptoe, Case No. 4:02-CR-688 (SD Tex., Nov. 6, 2019)

– Thomas L. Root

4th Circuit Drops Two Huge Pro-Defendant First Step/Fair Sentencing Act Opinions – Update for November 25, 2019

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The ever-surprising Fourth Circuit last week handed down two blockbuster opinions on application of the retroactive Fair Sentencing Act of 2010. For those of you new to this blog, the Fair Sentencing Act changed the 100-to-1 ratio of crack to powder cocaine, dropping it to a more (but not completely rational) 18-to-1 ratio. That dramatically affected the sentences of people in federal prison for crack (94% of whom are black), but the change only applied to people who had not yet been sentenced. Those already in prison would continue to languish under the oppressive (and now discredited) sentences.

The First Step Act, passed eight years later, finally extended retroactivity to the Fair Sentencing Act. Finally, people sentenced before August 2010 – the effective date of the Fair Sentencing Act – could get a break. But the devil has been in the details. Last week, the 4th Circuit delivered a reason some federal prisoners might be extra thankful this Thanksgiving season.

THE 4TH CIRCUIT GOES UNITARIAN

One of the perks of writing this newsletter (besides long hours over the weekend and no pay) is that I get to be wrong so often.

After the First Step Act made the Fair Sentencing Act (FSA) retroactive, a lot of people serving supervised release (SR) violations after finishing crack sentences wondered whether they could get their crack sentences reduced even though they had already been served. It seemed to me that the law said “Hell, no”.

Last week, the 4th Circuit said, “Hell, yes.”

Bobby Venable, who was serving an SR violation sentence, filed an FSA sentence reduction motion applicable to his prior crack sentence. Bobby claimed he would no longer face a statutory minimum 10-year term of imprisonment, and he wanted to be resentenced to 63 months. Bobby claimed this sentence would allow the Bureau of Prisons to credit him for overserved time, to be applied to his current term of imprisonment for revocation of supervised release.

The district court summarily denied his motion, holding that because Bobby “has finished his term of incarceration and is currently in custody following revocation of his supervised release[,] no reduction is authorized.”

unitary191125No court of appeals has yet considered whether a defendant on SR can get an FSA reduction for a sentence already served, but the 4th Circuit decided that “the plain language of the relevant statutes and the unitary theory of sentencing” permitted Bobby a reduction. The Circuit said that because Bobby’s original offense was for crack cocaine, “so long as he is serving any part of his sentence for that offense, he is eligible for a reduction. His offense (possession of 12.1 grams of cocaine base) was originally classified as a Class B felony, but under the Fair Sentencing Act’s provisions, it is now classified as a Class C felony. This reclassification corresponds with a lower range of statutory penalties.”

Relying on yet another Johnson case, this one Johnson v United States, a 2000 Supreme Court decision, the 4th “adopted a unitary sentence framework… stating that treating custodial and supervised release terms as components of one unified sentence appropriately recognizes the interdependent relationship between incarceration and supervised release.” The Circuit said Bobby’s “revocation sentence is a component of his underlying original sentence for the drug conviction.” Thus, Bobby “is still serving his sentence for a “covered offense” for purposes of the First Step Act. Thus, the district court had the authority to consider his motion for a sentence reduction, just as if he were still serving the original custodial sentence.”

United States v. Venable, 2019 U.S. App. LEXIS (4th Cir. Nov. 20, 2019)

STATUTORY CHARGE, NOT THE PSR FINDING, COUNT FOR FSA

FSA resentencings have bogged down recently over the issue of what amount of crack should count for resentencing purposes.

Comparativecrack190425

The issue is a simple one: a defendant was charged with distribution of “50 or more grams of cocaine base,” which carries a 10-year sentence. But at sentencing, the presentence report prepared by the U.S. Probation Office goes wild (usually based on the prosecutor’s say-so), and finds the defendant was involved with 1.2 kilos of crack.

When the defendant, twenty years later, goes for resentencing, the district court denies the motion because the 1.2 kilos would still carry a 10-year mandatory minimum under the post-FSA law.

We’ve been waiting for the issue of which one counts – the indictment accusation or the sentencing finding – and last week, we got our first circuit ruling… and it’s a good one.

Ten years ago, Dan Wirsing was charged with possession with intent to distribute more than 5 grams of crack. He struck a plea deal with the government in which he admitted that the crack amount was 60 grams, and he got 188 months.

When Dan filed for a reduced sentence under the newly-retroactive FSA, his district court denied him for being ineligible, because the amount he admitted to – 60 grams – had the same statutory sentence now that 5 grams had before the FSA. Because there was no change in the punishment, the district court said, Dan had nothing coming under the FSA.

Last week, the 4th Circuit reversed. The First Step Act provides that a sentencing court “may… impose a reduced sentence as if sections 2 and 3 of the FSA were in effect at the time the covered offense was committed.” A “covered offense” is “a violation of a Federal criminal statute, the statutory penalties for which were modified by section 2 or 3 of the FSA that was committed before August 3, 2010.”

onething191125It does not matter, the 4th says, what Dan pled to or what the presentence report found or what the district court held at sentencing was the amount of crack involved in the offense. All that matter is that “the covered offense” was changed by the FSA, the 4th Circuit said, and the “covered offense” is what the indictment alleged, nothing more.

Other circuits will weigh in on this, no doubt, but the 4th’s unanimous and well-reasoned 22-page decision is bound to get a lot of deference when other courts decide the issue.

United States v. Wirsing, 2019 U.S. App. LEXIS (4th Cir. Nov. 20, 2019)

– Thomas L. Root

District Court Cuts Life Sentence for Crack – Update for November 21, 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.

DISTRICT COURT CUTS LIFE SENTENCE FOR CRACK CCE

It has been a difficult ten months for some people seeking reduced sentences under the Fair Sentencing Act. DOJ says that 1,987 people have gotten sentence cuts, but as I noted last week, the government has dug in its heels on many more movants, arguing in many FSA cases that crack prisoners should be dinged with every gram of drug and Guideline enhancement imagined by the presentence report.

That’s why a recent district court FSA decision from the Northern District of New York to reduce a defendant’s life sentence to time served is so heartening.

life161207In 1997, Tommy Walker was convicted of a continuing criminal enterprise and drug conspiracy, and sentenced to life based on a mandatory minimum sentence imposed because the CCE involved more than 300 times the “5 grams or more” quantity of cocaine base penalized in 21 USC 841(b)(1)(B). However, as the court out it, “if the Fair Sentencing Act had been in effect at the time, the quantity of cocaine base penalized in 21 USC 841(b)(1)(B) would have been 28 grams or more,” meaning that to get a life sentence, Tommy would have had to be involved with 8.4 kilograms, far more than the 1.5 kg found in the presentence report.

That did not matter, the government said, because the Sentencing Guidelines enhancements that would have been applied under current law if the mandatory minimum life sentence did not apply put Tommy in the 360-life guidelines sentencing range, so the life sentence should stand.

The court rejected the government analysis, noting that one of the enhancements – maintaining a premises for drug distribution – did not exist when Tommy was sentenced, and anyway, the fact about maintaining a premises “was not an element of the charged crimes and did not affect Defendant’s original sentence, and therefore, he would have had little reason to contest it.”

It helped that Tommy had served more than the minimum sentence under his 292-360 month range, was 62 years old, and had “completed his GED, taken extensive educational courses, and excelled at jobs including electrician, law library clerk, and hospital companion, earning strong endorsements from various prison officials. He has also served as a mentor to other prisoners, who have submitted testimonials on his behalf. In short, Defendant has used his time in custody to better himself and help others.”

rehab160812The district court held that in Tommy’s case, “a reduced sentence is consistent with the purposes of the First Step Act and Congress’s intent to remedy the disproportionate impact of the statutory penalties applied to crack cocaine offenses prior to 2010, and to eliminate the disparity between Defendant and those sentenced thereafter.” The district court sentenced him to 340 months, which was time served, a sentence that reflected “the severity of the crimes committed by Defendant, while recognizing his efforts at rehabilitation.”

Don’t underestimate the power of a good disciplinary record and programming.

Memorandum Opinion and Order, United States v. Walker, Case No. 95-CR-101(NDNY, Oct. 25, 2019)

– Thomas L. Root

Smarter Sentencing Act Back In The Senate Hopper – Update for November 19, 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.

SMARTER SENTENCING ACT RE-INTRODUCED IN SENATE
Sen. Mike Lee (R-Utah)
Sen. Mike Lee (R-Utah)

The Smarter Sentencing Act, a bill intended to further reduce drug mandatory minimum sentences, was reintroduced in the Senate last week by Sen. Richard Durbin (D-Illinois) and Mike Lee (R-Utah), both members of the Senate Judiciary Committee. As of the date of this report, we have no bill number to associate with the legislation.

Sen. Richard Durbin (D-Illinois)
Sen. Richard Durbin (D-Illinois)

A lot of what had been contained in prior versions of the SSA, a bill which has been introduced in every Congress since 2013, was included in the First Step Act. What the current version contains is unclear, because the text of the proposed bill has not yet been released. However, Durbin’s office said “the central remaining sentencing reform in the Lee-Durbin legislation would reduce mandatory minimum penalties for certain nonviolent drug offenses.”

In the last iteration of the bill, S.1933 (115th Congress, 2017-18), the bill proposed an expanded “safety valve” under 18 USC § 3553(f) to allow a court to impose a sentence below the statutory mandatory minimum for an otherwise eligible drug offender who has three or fewer criminal history points. This change was incorporated into the First Step Act. Also, last year’s SSA reduced mandatory minimum sentences for drug offenses specified in 21 USC § 841(b)(1)(A) and (b)(1)(B):

•  from 10 years to 5 years for a first-time high-level offense (e.g., one kilogram or more of heroin),

•  from 20 years to 10 years for a high-level offense after one prior felony drug offense,

•  from life to 25 years for a high-level offense after two or more prior felony drug offenses,

•  from 5 years to 2 years for a first-time low-level offense (e.g., 100 to 999 grams of heroin), and

•  from 10 years to 5 years for a low-level offense after one prior felony drug offense.

The First Step Act incorporated the life-to-25 year and the 20-to-15 year reductions, but not the remainders.

Additionally, last year’s SSA made existing mandatory minimums inapplicable to a defendant who functions a courier; and establishes new, shorter mandatory minimum prison terms for a courier.

The current version of the Smarter Sentencing Act “gives federal judges the authority to conduct individualized reviews to determine the appropriate sentences for certain nonviolent drug offenses,” Durbin said in a press release.

BILL-DOA191120Lee said, “The SSA will give judges the flexibility and discretion they need to impose stiff sentences on the most serious drug lords and cartel bosses, while enabling nonviolent offenders to return more quickly to their families and communities.”

The bill is cosponsored by ten Democratic senators, including three presidential contenders, making the likelihood it will pass in the Senate virtually zero.

The Justice Roundtable, Durbin, Lee Reintroduce Smarter Sentencing Act (Nov. 16)

– Thomas L. Root