Tag Archives: FIRST STEP Act

‘How Are We Doing?’ Attorney General Asks (Rhetorically) – Update for January 5, 2021

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

FIRST STEP REPORT ISSUED

The First Step Act required that starting in 2020, the Attorney General generate an annual report on the Bureau of Prisons’ implementation of the various provisions of the law. The AG issued the report two weeks ago, which reads more like a hagiography of First Step compliance than a dispassionate recitation of how rocky the road to First Step implementation has been.

awesome210105Example: The AG says the BOP and Department of Justice “also implemented and responded to changes the FSA made involving retroactive application of the Fair Sentencing Act, compassionate release, and good conduct time.” If “implemented and responded to changes” means fighting compassionate release (10,929 out of 10,940 requests to the BOP for compassionate release denied) and Fair Sentencing Act reduction motions hammer-and-tong, DOJ and BOP have surely overperformed.

Surprisingly (or maybe not, given the political roar coming from Washington over the last two months), the First Step Report seems to have landed silently. Yet there are some interesting gold nuggets in the 59 pages of dross. I’m still reading it, and I’ll report more on it next week, but a few stats have jumped out already:

•      70% of all BOP inmates are designated to facilities within 500 miles of their release residences (but the Report does not compare this to the stats prior to passage of First Step);

•    the BOP has transferred over 19,000 people to home confinement since last March;

•         in 2020, one out of every four BOP inmates did not get any halfway house or home confinement prior to release

The most interesting tables I have seen so far are the recidivism tables. The Report found recidivism among people released under the First Step Act to be 11.3%, much less than the one-third or higher numbers usually cited. One curious finding: people who served less than 5 years had a recidivism rate of 10.9%; those serving between 5 and 10 years, 12.6%; those serving between 10 and 15 years, 13.1%; and those serving over 15 years, 7.8%.

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These stats present a strong argument about the deterrence value (or lack thereof) of sentences, a point which should be part of any 18 USC § 3553(a) analysis in a compassionate release or Fair Sentencing Act determination.

Dept of Justice, The Attorney General’s First Step Act Section 3634 Annual Report (December 21, 2020)

– Thomas L. Root

It’s Not a Sentence Until It Is, 6th Circuit Says – Update for December 22, 2020

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DOING IT OVER UNTIL YOU GET IT RIGHT

mulligan190430Mike Henry and an accomplice robbed three banks. In each robbery, Mike’s co-conspirator used a gun. A jury convicted Mike of the three robberies and three counts of using a gun in a crime of violence under 18 USC § 924(c). A § 924(c), you may recall, carries a mandatory sentence of at least five years (more if you brandish it or, God forbid, actually fire it).

In 2013, Mike got 70 months concurrent for the three robberies and 60 months for the first § 924(c) conviction. Because back then, a second or subsequent § 924(c) conviction carried a mandatory sentence of 300 extra months got a total of 600 months (50 years, that is),  for each of the next two § 924(c)s. Mike ended up with a sentence of  730 months (about 61 years in prison).

Mikes’s conviction was reversed because of the intervening Supreme Court decision in Rosemond v United States, which held that an accomplice had to have some level of knowledge that is co-conspirator had a gun. But after retrial, Mike’s sentence got marginally worse, increasing by eight months to 738 months. But while Mike was on appeal the second time, the Supreme Court’s Dean v. United States decision was handed down (holding that judges could adjust the underlying sentence to account for the mandatory § 924(c) sentence), and Mike’s sentence got reversed again in 2018.

By the time Mike was resentenced a second time, the calendar had flipped to 2019, and the First Step Act had passed. First Step Act § 403 amended 18 USC § 924(c) so that subsequent convictions of the statute carried a 300-month mandatory minimum only if the defendant had been previously been convicted of a § 924(c) offense. Which, of course, Mike had not.

Robber160229But First Step was not retroactive. Instead, § 403 applied only to an “offense that was committed before the date of enactment of this Act, if a sentence for the offense has not been imposed as of such date of enactment.” On his latest appeal, Mike argued that First Step § 403 applied to his case, and his sentences for the second and third § 924(c) offenses should have only been 60 months apiece, not 300 months apiece.

Last week, the 6th Circuit agreed. The Court said the plain language of § 403(b) supported its conclusion that the First Step Act applies to defendants whose cases were remanded prior to the First Step Act’s enactment but who were resentenced only after its enactment.  At the time of the First Step Act’s enactment, the Circuit ruled, Mike “did not have ‘a sentence” for the purposes of § 403(b), because his case had been remanded case to the district court for resentencing. “Only when the district court ‘imposed’ Henry’s sentence for his various convictions at his 2019 resentencing did he have a sentence for the purposes of § 403“, the 6th said. “The better reading of ‘a sentence’ requires the defendant to have a valid sentence at the time of the First Step Act’s enactment, not a sentence at some point… Therefore, Henry is eligible for sentencing under First Step Act § 403.”

oldmangrandkids201222This time, some 480 months should come off the sentence, leaving him with a still hefty 250 months (about 21 years). But it leaves Mike with a chance of hugging his grandkids someday.

United States v. Henry, Case 19-2445, 2020 U.S. App. LEXIS 39799 (6 Cir Dec 18, 2020)

– Thomas L. Root

Sentencing Sanity the 3rd, 7th Circuits – Update for September 23, 2020

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THREE FIRST STEP/FAIR SENTENCING DECISIONS OF NOTE

Last week was a good one for the First Step Act.

Sentencestack170404Hector Uriante was convicted of running with a gang that kidnapped and robbed drug dealers, including several 18 USC 924(c) counts that got stacked in the pre-First Step days. On the first 924(c) count, he got seven years for brandishing, but the brandishing was found by the judge, not the jury. On direct appeal, the Circuit remanded the case for resentencing because of Alleyne v. United States‘ holding that the jury had to find facts supporting an enhanced mandatory minimum.

The district court resentenced him last year, after First Step passed, but the judge still stacked his 924(c) counts, giving him 25 years for the second one. The district judge held that since Hector was first sentenced before First Step passed, the Act’s ban on stacking 924(c) convictions did not apply.

Last week, the 7th Circuit reversed in an en banc opinion that rejects the 3rd Circuit decision in United States v. Hodge. Because the prior sentence had been vacated, the 7th said, it was a “nullity.” A vacatur “wipes the slate clean,” meaning that at the time First Step passed, Harry was convicted and awaiting sentencing. Congress wrote First Step’s changes in 924(c) stacking to “apply to any offense that was committed before the date of enactment of this Act, if a sentence for the offense has not been imposed as of such date of enactment,” making no distinction between defendants who had never been sentenced and those whose sentence had been vacated fully and who were awaiting the imposition of a new sentence. “In this way,” the Circuit explained, “Congress stanched, to the degree that it could without overturning valid and settled sentences, the mortmain effect of sentencing policies that it considered no longer in the Nation’s best interest. It ensured, moreover, all persons awaiting sentencing on the effective date of the Act would be treated equally, a value long cherished in our law.”

So Hector’s good fortune in getting his sentence overturned under Alleyne, which appears to have saved him two years, in fact reduces his sentence by a full 22 years (two years off the 7-year “brandishing” sentence and a reduction of the second 924(c) sentence from 25 to five years).

conspiracy160606The 7th Circuit last week held that the same rule benefitted Rashod Bethany. Rashod was sentenced for a crack conspiracy in 2013, but later won a § 2255 motion on the grounds his lawyer erred in letting the court use the wrong edition of the Guidelines. He was resentenced after First Step passed, but his sentencing court would not let him benefit from the lower drug mandatory minimums passed in § 401 of the Act.

The 7th said that same rule applied. The § 2255 motion vacated his sentence, so Rashod was in the same position as a defendant who had never been sentenced. The Circuit remanded the case to district cout for a ruling of whether the sentence would have changed if lower mandatory minimums had been applied.

Finally, in the 3rd Circuit, James Easter had filed for a resentencing under First Step § 404, the section that made the 2010 Fair Sentencing Act retroactive. The court decided that James was eligible for a reduction, but denied him one because, the judge concluded, James’s Guidelines range did not change even if the FSA was applied.

James appealed, arguing that a district court had to consider the sentencing factors in 18 USC § 3553(a), not just a mechanistic look at the guidelines. Last week, the 3rd Circuit agreed.

While other circuits generally agree that minimum, a district court may consider the § 3553(a) factors, the 3rd said a judge must do so. “Section 404(b) uses the word ‘impose’ twice, and the first instance clearly refers to the act of imposing the original sentence.” The Circuit ruled. “Because Congress used the same word, we can infer that it conceived of the district court’s role as being the same when it imposes an initial sentence and when it imposes a sentence under the First Step Act. As the text of § 3553(a) makes clear, district courts look to the factors set forth there whenever they impose a sentence on a defendant.”

The 3rd Circuit joins the 4th and 6th Circuits in adopting the rule.

United States v. Uriarte, 2020 U.S. App. LEXIS 29234 (7th Cir. Sept 15, 2020)
United States v. Bethany, 2020 U.S. App. LEXIS 29246 (7th Cir. Sept 15, 2020)
United States v. Easter, 2020 U.S. App. LEXIS 29243 (3d Cir. Sept 15, 2020)

– Thomas L. Root

Fair Sentencing Act Courts Fill in the Blanks – Update for September 15, 2020

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CONGRESS PAINTS IN BROAD STROKES…

brush200915When Congress passed the First Step Act, it authorized retroactive application of the 2010 Fair Sentencing Act in just 222 words. Two cases last week, which fill in the fine points that the statute leaves unaddressed, do so with over 5,000 words, and that number is a small percentage of all the cases since 2018 interpreting § 404 of First Step.

Still, the devil’s in the details, and last week’s decisions answer some questions § 404 leaves ambiguous. One is what constitutes “a complete review on the merits.” A second is exactly what prior Guidelines determinations by the court may be revisited on a § 404 resentencing.

Richard Hoskins pled guilty to a crack offense in 2009, making a Federal Rule of Criminal Procedure 11(c)(1)(C) agreement (a deal in which the actual sentence is negotiated, and the court must take it or leave it) to 327 months. The deal let him dodge a mandatory life sentence. The Fair Sentencing Act dropped his plea Guideline range to 262-327 months, but when he petitioned for § 404 relief, his district court issued an order saying that it believed he was not eligible, and even if he were eligible, his sentence should stay at 327 months. However, the court invited Rich and the government to submit “persuasive objections” to what the court proposed to do.

Despite the parties’ filings, the court denied Rich a sentence reduction. Last week, the 8th Circuit affirmed, despite Rich’s objections that the judge’s announcement before briefing of what he intended to do deprived Rich of the right to be heard.

On appeal, the government conceded that the district court was wrong (in that Rich was clearly eligible for § 404 reduction), but it argued the court had given Rich the review “on the merits” that § 404 promised.

hearme200406Section 404(c) precludes a successive FSA motion if a previous motion was “denied after a complete review of the motion on the merits.” While “complete review on the merits” has not been addressed before, the 8th said it “means that a district court considered petitioner’s arguments in the motion and had a reasoned basis for its decision.” Here, the district court’s final order stated that it had considered the parties’ briefs and exhibits, and it briefly explained why the court concluded that Rich’s initial sentence was ‘sufficient but not greater than necessary to address the essential sentencing considerations’.” This was sufficient to satisfy the Circuit that the district court had exercised its discretion, which was apparently the key to determining that Rich had gotten a “complete review on the merits.”

fivegrams200915Meanwhile, back in Oklahoma, when Dymond Brown was sentenced for five grams of crack back in 2007, he was held to be a Guidelines career offender for, among other reasons, feloniously pointing a firearm at another person. (“Career offender” status sends a defendant’s sentencing range into the stratosphere, in Dymond’s case to 22 years for five grams of cocaine base instead of the five years he would have gotten otherwise). Between 2007 and 2018, the 10th Circuit reversed course on the Oklahoma “feloniously pointing a gun” offense, and decided it was not a crime of violence after all (because one could commit the offense without employing or threatening violence).

Dymond filed a § 404 motion, and argued that the district court should consider sentencing law as it existed the day Congress passed the First Step Act in 2018. Predictably, the government argued that although Dymond should never have been a career offender, the district court could not recognize that fact in a § 404 resentencing. The district court agreed with the government, and resentenced him to a reduced career offender sentencing range of 210 months.

For a non-lawyer, the notion that someone was sentenced to an extra 17 years because of a court’s mistake in applying the law, but should not be able to correct that error, is both shocking and nonsensical. The government, of course, was able to argue for precisely that notion without a moment’s hesitation or shame.

error161022Fortunately, the 10th Circuit is made of better stuff than the U.S. Attorney’s office. It sided with Dymond. While a § 404 resentencing is a limited one, still, the sentencing judge must calculate the defendant’s correct Guideline range. “When the court calculates a defendant’s Guideline range,” the 10th said, “it implicitly adopts the underlying legal conclusions… Our holding [that ‘feloniously pointing’ was not a violent offense] was not an amendment to the law between Dymond’s original sentencing and his First Step Act sentencing; it was a clarification of what the law always was… If the district court erred in the first Guideline calculation, it is not obligated to err again. What reasonable citizen wouldn’t bear a rightly diminished view of the judicial process and its integrity if courts refused to correct obvious errors of their own devise that threaten to require individuals to linger longer in federal prison than the law demands? Especially when the cost of correction is so small?”

Thus, when the correction is a clarification of the law, not an amendment, a § 404 resentencing should consider it. Dymond will get resentenced with a correct, lower Guidelines sentencing range.

United States v. Hoskins, 2020 U.S. App. LEXIS 28190 (8th Cir. Sept 4, 2020)

United States v. Brown, 2020 U.S. App. LEXIS 28454 (10th Cir. Sept 9, 2020)

– Thomas L. Root

Judging the Whole Person in Fair Sentencing Act Proceeding – Update for September 3, 2020

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CRACK FSA RESENTENCING MUST CONSIDER MOVANT’S PRISON RECORD

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

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

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

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

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

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

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

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

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

– Thomas L. Root

FSAction – Update for July 1, 2020

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A PASSEL OF FAIR SENTENCING ACT RULINGS

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

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

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

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

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

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

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

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

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

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

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

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

crackpowder191216

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

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

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

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

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

– Thomas L. Root

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

– Thomas L. Root

Short Rockets – Update for June 18, 2020

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SOME SHORTS FROM LAST WEEK…

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

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

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

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

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

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

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

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

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

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

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

– Thomas L. Root

Double Secret PATTERN Scoring – Update for June 1, 2020

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

BAIT AND SWITCH?

bait200601For those of you who just came in, the First Step Act, among many other things, mandated that the Federal Bureau of Prisons would employ a state-of-the-art risk and needs assessment program, intended to determine how likely an inmate was to be a recidivist upon release, and what programs would best address the factors making him or her likely to reoffend.

First Step provided that inmates could then earn credits for successfully completing the programming, credits that would enable them to go home earlier or obtain extra halfway house.

It was intended to be a win all around.

The Dept. of Justice conducted a 10-month long study-and-comment period beginning in April 2019 on how to best develop a risk and need assessment program that met First Step standards. That resulted in adoption of PATTERN (“Prisoner Assessment Tool Targeting Estimated Risk and Needs” for you folks who eschew acronyms). PATTERN employed a series of about a dozen static and dynamic factors to provide an aggregate number placing the inmate being tested in the minimum, low, medium or high category.

The original PATTERN factors were very publicly modified last January to lessen the risk that PATTERN might be unconsciously biased so that it returned higher scores for racial minorities. And with that, PATTERN was ready for use.

The BOP announced that all inmates had been rated by PATTERN, but a number of people from different institutions expressed frustration at getting their PATTERN score from BOP staff. A few swore their BOP case managers had no idea what PATTERN even was. Using the revised PATTERN matrix over the past four months, I have helped several people estimate their PATTERN scores. But in almost every case, when the people I helped received their actual PATTERN scores from the BOP, those scores were higher – sometimes much higher – and the reason for the discrepancy was a mystery.

topsecret200601We may now have an answer to the conundrum, but it is not a pretty one. ProPublica, an independent investigative journalism nonprofit, last week reported that it had obtained a 20-page policy document drafted by the BOP earlier this year that altered the PATTERN standards to make “it harder for an inmate to qualify as minimum risk.” The draft document, which does not appear to have been finalized, dramatically changes the maximum number of points for each risk category, according to ProPublica. “It really tanks the whole enterprise if, once an instrument is selected, it can be strategically altered to make sure low-risk people don’t get released,” Brandon Garrett, a Duke University law professor who studies risk assessment, was quoted as saying. “If you change the cut points, you’ve effectively changed the instrument.”

ProPublica said a BOP spokesman had confirmed that the Bureau had revised the risk categories without informing the public. The 2019 report was an “interim report,” ProPublica quotes the spokesman as having said. “The interim report mentioned that DOJ would seek feedback and update the tool accordingly, which was done.” The spokesman said the draft policy document “was not authorized for release.”

So, as Dean Wormer might have said, it’s like a double secret PATTERN score.

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Ohio State University law professor Doug Berman wrote in his Sentencing Policy and Law blog that the ProPublica report was “yet another ugly example of how the Department of Justice acts more like a Department of Incarceration.”

The ProPublica report came in a week in which former Trump lawyer Michael Cohen was sent to home confinement, although he has served only a third of his sentence. The Cohen and Paul Manafort releases, a Marshall Project/NBC report said, are “raising questions about the BOP’s opaque process and its fairness.”

ProPublica reported that Senators Richard Durbin (D-Illinois) and Charles Grassley (R-Iowa), who were First Step Act co-authors, said last week the DOJ’s inspector general has agreed to examine BOP’s compliance with Barr’s home confinement directive and overall response to the COVID-19 pandemic.

ProPublica, Bill Barr Promised to Release Prisoners Threatened by Coronavirus — Even as the Feds Secretly Made It Harder for Them to Get Out (May 26)

Sentencing Law and Policy, “Bill Barr Promised to Release Prisoners Threatened by Coronavirus — Even as the Feds Secretly Made It Harder for Them to Get Out” (May 27)

The Marshall Project, Michael Cohen and Paul Manafort Got to Leave Federal Prison Due to COVID-19. They’re The Exception (May 21)

– Thomas L. Root

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

6TH CIRCUIT ISSUES REMARKABLE CRACK SENTENCE REDUCTION RULING

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

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

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

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

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

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

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

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

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

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

– Thomas L. Root