Tag Archives: FIRST STEP Act

Short Rockets – Update for June 18, 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.

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.

doublesecret200610
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.”

foxhenhouse200522

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

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

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

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

– Thomas L. Root

BOP Updates Home Confinement Policy To Catch Up With First Step – Update for April 8, 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 ISSUES NEW HOME CONFINEMENT PROGRAM STATEMENT

The BOP finally and officially has directed its staff to issue maximum home confinement (10% of sentence up to a max of 6 months, under 18 USC 3624[c][2]). This, of course, was something the BOP was told to do almost 16 months ago by the First Step Act.

home190109Section 602 of the Act amended 18 USC 3624(c)(2) – which authorizes home confinement for prisoners at the end of their sentences for a period not to exceed the lesser of 10% of their sentences or 6 months – to add that “the Bureau of Prisons shall, to the extent practicable, place prisoners with lower risk levels and lower needs on home confinement for the maximum amount of time permitted under this paragraph.”

The need to add the provision is inexplicable. Home confinement, overseen by the U.S. Probation Office for the BOP, costs about $8.00 a day, compared with imprisonment ($102.60 a day) or halfway house ($94.50 a day).  One would think that home confinement would be the first option a BOP case manager would be directed to consider, given the BOP’s chronic shortage of budget and personnel. It’s as close to a win-win as you can get.

But one would be wrong. The BOP has always been focused on halfway house, with the halfway houses then moving its inmates to home confinement as they got to the 10%/six-month eligibility period.

winwin200408Even after passage of the Act, the BOP used the delay in adoption of the PATTERN risk and needs assessment protocol as a basis for not maximizing home confinement. After all, the argument went, no one knows if someone falls into the “lower risk levels and lower needs” category without a PATTERN analysis.

Now that PATTERN is adopted, the BOP is out of excuses.

The April 3rd directive says the BOP interprets Section 602 “to refer to inmates that have lower risks of reoffending in the community, and reentry needs that can be addressed without RRC placement. The Bureau currently utilizes home confinement for these inmates.
Accordingly, staff should refer eligible inmates for the maximum amount of time permitted under the statutory requirements.”

Of course, the BOP’s adherence to First Step’s directive, like the rest of 18 USC § 3624, is exempted from judicial review by 18 USC § 3625. So there is no policing mechanism other than Congressional oversight to ensure that the BOP does what is undeniably in the agency’s own best interest.

Operations Memorandum 001-2020, Home Confinement Under the First Step Act (Apr. 3, 2020)

– Thomas L. Root

Virus or No, The World Keeps Turning on Hobbs Act and FSA – Update for March 31, 2020

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

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

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

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

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

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

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

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

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

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

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

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

– Thomas L. Root

Defendant Can’t “Bank” Jail Time Against Future Crime – Update for March 19, 2020

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

BANKING ON IT

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

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

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

Ron appealed.

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

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

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

– Thomas L. Root

A Short Rocket – Update for March 12, 2020

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WE’VE GOT THE SHORTS…

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

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

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

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

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

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

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

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

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

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

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

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

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

– Thomas L. Root

Opening the First Step Money Spigot – Update for February 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.

MONEY, THAT’S WHAT I WANT…

Moneyspigot200220
One of the big questions left unanswered when the First Step Act passed was where the money would come from to pay for all of the ambitious programs to reduce recidivism..

Last week, the Trump administration addressed the question, proposing big budget increases for First Step implementation in 2021. A budget summary sent to Congress last week reports the administration will seek $409 million for First Step, a large increase over the $319 million provided this year.

Included are what the White House called “major new investments” in programming, halfway houses and additional Bureau of Prisons First Step staff.

Line items include an extra $244 million for halfway houses, supporting an increase in the total available beds – to meet First Step’s promise of extra halfway house time for earned-time credits –  from 14,000 to about 23,000; $37 million for expansion of the Medication-Assisted Treatment pilot program, which combines behavioral therapy and medication to treat inmates with opioid use disorder, to all BOP facilities; $23 million for increased inmate access to evidence-based, recidivism-reduction programs and to and add new programs as they are identified and evaluated; and $15 million for extra First Step implementation staff.

The budget builds on the $90 million provided in 2020 to support First Step implementation.

moneyhum170419Ohio State University law professor Doug Berman said in his Sentencing Law and Policy blog last week that “though these budget proposals still might fall short of what is needed for full, effective implementation of the First Step Act (e.g., I think Recidivism-Reduction Programs needs a lot more money), this strikes me as a serious effort to put serious money behind the Act (especially with the RRC expansion).”

Unfortunately, a White House proposed budget never survives Congress in anything approaching its initial form, and often never passes at all. As for the FY2021 budget, Steve Ellis, president of Taxpayers for Common Sense, snorted, “You might call a president’s budget aspirational. In a less charitable way, it’s really delusional.”

The Crime Report, First Step Act Funding Hiked to $409M in Trump Budget Plan (Feb 11)

Sentencing Law and Policy, Notable numbers in “Criminal Justice Reform” fact sheet highlighting part of Prez Trump’s proposed budget (Feb 10)

The White House, Criminal Justice Reform fact sheet (Feb 9)

– Thomas L. Root

Retroactive Crack Law Applies to Some Completed Sentences, 6th Says – Update for February 11, 2020

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ANOTHER CIRCUIT RULES SUPERVISED RELEASE DEFENDANT ELIGIBLE FOR RETROACTIVE FAIR SENTENCING ACT CUTS

The 6th Circuit joined the 4th last week in ruling that a defendant now serving a prison term for violating supervised release could apply for a retroactive sentencing cut under the Fair Sentencing Act, despite the fact he had completed serving the underlying crack cocaine sentence.

supervisedrevoked181106Aaron Woods served 120 months after being convicted in 2001 for distributing crack. After he was released, he was on supervised release for five years, during which time he caught a state marijuana case. His SR was violated, and he was sent back to federal prison for another 37 months for the revocation.

Aaron applied under the First Step Act for retroactive application of the 2010 Fair Sentencing Act sentence cut. The district court held he was ineligible because his current sentence was for violating SR, not for crack.

The 6th disagreed. “Postrevocation penalties relate to the original offense,” the Circuit held. Treating “revocation and reimprisonment as punishment for the violation of the conditions of supervised release” instead of a continuation of the original offense would raise “serious constitutional questions, such as double jeopardy concerns.” Therefore, Aaron was eligible for an FSA sentence cut.

United States v. Woods, 2020 U.S. App. LEXIS 3462 (6th Cir. Feb. 4, 2020)

– Thomas L. Root

Living Under the Sword – Update for February 4, 2020

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

LET’S NOT GET AHEAD OF OURSELVES

Who would not want to be Ronald Mack?

sword200204Ron, his brother Rodney and friend Jesse Opher were never supposed to get out of prison. They were sentenced to LWOPs (“life without parole”) after being convicted of crack conspiracy charges in 2001. But then in 2014, a change in the Sentencing Guidelines that reduced the base offense level for the quantity of drugs charged against them cut their sentences to 30 years. A few years later, the First Step Act let them apply for retroactive application of the Fair Sentencing Act of 2010. In November 2019, same judge who took their futures in 2002 gave them back, reducing their sentences (and that of a fourth man in their case) to time served.

But their freedom may be short-lived. Just as they were beginning to get a feel for their life outside of prison, the four men learned the U.S. Attorney’s Office of New Jersey had filed a notice to appeal their release.

The government had argued the four men were not eligible for reduced sentences because they were also convicted of conspiring to distribute powder cocaine, the penalties for which have not changed under the First Step Act. Their conviction today would still trigger a possible life sentence, the government argued at the November hearing, and the 20 years or so they had served just wasn’t enough.

The judge didn’t buy it. She noted that the government’s original trial case, and how the jury verdict sheet (written by the government) was worded, both revolved around the mandatory minimums that would come from a crack cocaine conviction. In fact, the judge observed, prosecutors were “asking the jury to make the findings that would, in fact, drive the sentence… I just want to tell you when you look at this jury verdict sheet, it is a graphic on the sentencing guidelines disparities between crack and powder cocaine.”

sowwind200205Sow the wind, reap the whirlwind, the judge told the U.S. Attorney.

The men’s lawyers argued that First Step is written to be applied broadly. The judge agreed, saying it was “simple.” The men were convicted of conspiracy to commit a crack offense before 2010, so they are eligible. That’s all First Step requires.

So the government filed its notice of appeal, indeed, filing it before the deadline. In so doing, however, the government got a little ahead of itself, however. A government criminal appeal has to be approved by the Solicitor General. Right now, the appeal is stayed, because Washington has not yet given the New Jersey U.S. Attorney approval to proceed.

Such approval is not automatic. The SG has to consider whether the facts of the case and the judge’s holding are such that the government can win. Right now, the government has a single district court case (which does not bind other district courts) going against its position. If it does not appeal, Ron and his co-conspirators go free after doing about 20 years. If it does appeal and loses, it has a Circuit court precedent that will bind district courts in three states, as well as serve as persuasive authority in the rest of the country.

For years, Ron  expected to die in prison. He has been free for almost three months, but ever since the government’s notice of appeal he is living under the Sword of Damocles. He wonders daily, “Am I going back? “When are they going to stop?,” he asked in a recent interview. “That’s what I want to know. When are they ever going to stop? Are they ever going to stop?”

NJ.com, Judge released 4 N.J. men after nearly 20 years in prison. Now, the feds want to send them back (Jan 26)

Order, United States v. Mack, Case No. 19-3891 (3rd Cir. Jan 14, 2020)

– Thomas L. Root