Tag Archives: havis

Unfair Sentence is Not Extraordinary, 6th Says – Update for December 28, 2022

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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.

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6TH CIRCUIT SAYS NOTHING IS ‘EXTRAORDINARY’ ABOUT CHANGES IN THE LAW

The 6th Circuit last week delivered a lengthy en banc decision that seems to fly in the face of last summer’s Supreme Court Concepcion v. United States opinion.

6thConcepcion221228Concepcion held by a 5-4 majority that “Federal courts historically have exercised… broad discretion to consider all relevant information at an initial sentencing hearing, consistent with their responsibility to sentence the whole person before them. That discretion also carries forward to later proceedings that may modify an original sentence. Such discretion is bounded only when Congress or the Constitution expressly limits the type of information a district court may consider in modifying a sentence.”

Because Congress did nothing in the First Step Act to “contravene this well-established sentencing practice,” Justice Sotomayor wrote for the Concepcion majority, “Nothing in the text and structure of the First Step Act expressly, or even implicitly, overcomes the established tradition of district courts’ sentencing discretion.”

But last week, the 6th Circuit overcame that tradition right handily, ruling that in weighing a compassionate release motion, a district court may not consider non-retroactive changes in sentencing statutes or Guidelines, even when those changes mean that if the defendant were sentenced for the same offense today, the sentence would be much shorter.

David McCall, who has prior drug convictions aplenty, was convicted of serving as a middleman in a sprawling Cleveland, Ohio, drug-trafficking conspiracy. The government, emphasizing Dave’s extensive criminal history, urged the district court to sentence him to 235 months as a Guidelines career offender.
 compassionlimit221228Five years into the sentence, Dave moved for an 18 USC § 3582(c)(1)(A)(i) compassionate release, based on his risk of COVID, his rehabilitation and the fact that under the 6th Circuit’s United States v. Havis decision, attempted drug-trafficking offenses like Dave’s priors are not controlled substance offenses under the Guidelines career offender provision.

Dave’s district court denied the compassionate release, holding that a nonretroactive change in the law like Havis was not an “extraordinary and compelling” reason for a sentence reduction under the statute. A year ago, a 6th Circuit panel agreed. Last week, the 6th Circuit sitting en banc upheld the panel decision:

The 1st, 9th, and 10th Circuits have held that nonretroactive legal developments can contribute to a finding of extraordinary and compelling reasons when viewed in combination with a defendant’s unique circumstances. The 4th Circuit’s position goes a step further… Different around the edges, all three of these decisions seem to rest on the common goals of ‘alleviating unfair and unnecessary sentences as judged by today’s sentencing laws… and of promoting ‘individualized, case-by-case’ sentencing decisions… We cannot reconcile this approach with the plain text of the compassionate-release statute. Congress prospectively amends or updates its criminal-penalty scheme. The nonretroactivity of judicial precedent like Havis is the rule, not the exception. That a defendant might receive a different sentence today than he received years ago represents the routine business of our legal system. These ordinary happenings cannot supply an extraordinary and compelling reason to reduce a lawful sentence whose term Congress enacted, and the President signed, into law.

The only good news is that within a month, the U.S. Sentencing Commission should issue a proposed USSG 1B1.13 – a new compassionate release policy statement – for public comment.  The proposal should harmonize the rules followed by the different Circuits, and do so in a way favorable to prisoners.

United States v. McCall, Case No 21-3400, 2022 U.S. App. LEXIS 35473 (6th Cir, Dec 22, 2022)

– Thomas L. Root

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Havis: the 6th Circuit Gift That Keeps on Giving – Update for September 9, 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.

HAVIS MEANS CONSPIRACY DOESN’T COUNT FOR CAREER OFFENDER, EITHER

You remember United States v. Havis, the 2019 en banc decision in which the 6th Circuit held that the Guidelines’ definition of ‘controlled substance offense’ did not include attempt crimes, meaning that a defendant’s prior conviction for attempted drug distribution could not be counted to make him a career criminal. (If you don’t recall it, refresh yourself here).

snakes200909Eddie Valesquez made a deal over the phone with a buddy of his to kill a troublesome witness. (Note: Contrary to popular culture’s suggestions to the contrary, murdering a witness is both illegal and a bad idea). In fact, Eddie found out that the mere planning such a murder problematical: he was convicted of an 18 USC § 1958 conspiracy to commit murder for hire.

Eddie’s prior drug conspiracy conviction was used at sentencing to make him a career offender under the Sentencing Guidelines, which raised his sentencing range to stratospheric heights, resulting in a 262-month term in prison.

Last week, the 6th Circuit reversed the sentence. It ruled that “although the specific facts of Havis involved an attempt crime, its reasoning applies with equal force to other inchoate crimes not listed in the text of § 4B1.2(b). Accordingly, we have acknowledged that, in light of Havis, conspiracy to distribute controlled substances is not a “controlled substances offense” under § 4B1.2(b).”

United States v. Cordero, Case No. 19-3543, 2020 U.S. App. LEXIS 28128 (6th Cir. Sep 3, 2020)

– Thomas L. Root

Guidelines Career Offenders Out of Luck on 2255s – Update for September 9, 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.

6th CIRCUIT SAYS GUIDELINES CAREER OFFENDERS WANTING HAVIS OR DAVIS ADJUSTMENTS ARE OUT OF LUCK

toughluck180419Dwight Bullard pleaded guilty to distributing heroin and being a felon in possession of a firearm. At sentencing, the district court determined that he qualified as a career offender under the Sentencing Guidelines, a provision that sets sentencing ranges stratospherically high for people convicted of two prior drug crimes or crimes of violence.

One of Dwight’s prior drug offenses was for attempted to sell drugs. After the 6th Circuit’s decision in United States v. Havis, which held that attempted drug crimes did not qualify a predicate offense for Guidelines career offender status, Ballard challenged his own Guidelines career offender status in a post-conviction motion under 28 USC § 2255.

The difference between being a career offender and not being a career offender is huge, sometimes the difference between under five years and nearly 20 years in prison. The sentencing ranges are advisory, of course – courts are not obligated to follow them, but do over half of the time – but nevertheless the sentencing ranges are very influential.

The district court denied his 2255 motion, so Dwight appealed.

On appeal, the government admitted that Dwight was right, because Havis held the Guidelines definition of a controlled substance offense does not include attempt crimes. The 6th Circuit agreed that if Dwight received his sentence today, he would not be a Guidelines career offender.

lawyermistake170227But a non-constitutional challenge to an advisory guidelines range may not be raised in a post-conviction motion such as a 2255. Ballard tried to get around that problem by claiming that his trial and appeals attorneys were ineffective, because they did not raise the argument that ultimately won in Havis. Ineffective of counsel is a Sixth Amendment claim, and thus a constitutional issue.

Nevertheless, the 6th Circuit upheld dismissal of Dwight’s 2255. While his claim was cognizable under 2255, the Court said, Dwight could not show that his attorneys were ineffective for not raising the issue, and even if they had been, he had suffered no prejudice.

lovelawyerB170811Before Havis, there was no case precedent in the Circuit that would have held Dwight’s Arizona prior not to be a controlled substance offense. That being the case, the Circuit held, it was entirely reasonable for Dwight’s trial counsel not to object that the prior was used to make Dwight a career offender. As it is, his trial attorney argued at sentencing that Dwight was not “an authentic career offender,” and thus got him sentenced 152 months under his minimum Guidelines.

Even if Dwight’s lawyer should have raised the same argument that later won in Havis, the 6th Circuit held, the district court outcome would not have been different. This is because under the case law at the time, the district court would have counted the Arizona conviction toward career offender status even if Dwight’s lawyer had objected.

In so many words, the 6th Circuit says people who received career offender sentences because of what courts now recognize as a mistake, people who would never qualify for such a status today because of Havis or Davis, are simply out of luck.

Bullard v. United States, 2019 U.S. App. LEXIS 26643 (6th Cir. Sept. 4, 2019)

– Thomas L. Root