Tag Archives: ice

No Christmas Treats for Prisoners from Sentencing Commission – Update for December 20, 2024

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

SENTENCING COMMISSION ROLLS OUT MINIMALIST 2025 AMENDMENT PROPOSAL

The United States Sentencing Commission yesterday adopted a slate of proposed amendments to the Federal Sentencing Guidelines for the amendment cycle that will end on or before May 1, 2025, with the adoption of amendments to become effective next November.

Anyone who thought the Commission might roll out a proposal to no longer enhance methamphetamine sentences because of purity – something that US District Judge Carlton Reeves (who is currently chairman of the USSC) ruled from the bench two years ago makes no sense – was disappointed (but see below).

lumpofcoal221215Likewise, any federal prisoners hoping for a resolution to last August’s surprise decision to table retroactivity for four amendments that became effective last fall just found coal in their stockings. The Commission had proposed retroactivity for changes in Guidelines covering acquitted conduct, gun enhancements, Guidelines calculation where a defendant is convicted of an 18 USC § 922(g) felon-in-possession count, a 21 USC § 841 drug trafficking count and a separate 18 USC § 924 gun conviction; and a change in the drug Guidelines to tie mandatory and high base offense levels to statutory maximum sentences instead of more complex factors that inflate sentencing ranges.

Generally, changes in the Guidelines do not apply to people who have already been sentenced, but Guideline 1B1.10 addresses the rare occasions where a Guideline change is retroactive, providing prisoners already sentenced with a chance for a time reduction.

I wrote at the time that the Commission was perhaps responding to criticism heaped on it for adopting amended Guideline 1B1.13(b)(6), which permits judges to grant compassionate release where a prisoner’s sentence could not be imposed today because of changes in the law that occurred after the sentence was imposed. After the Commission adopted the amended 1B1.13 in April 2023, Sens John Kennedy (R-LA), Ted Cruz (R-TX), John Cornyn (R-TX), Tom Cotton (R-AR) and Marco Rubio (R-FL) introduced the Consensus in Sentencing Act (S.4135) to require the Commission to achieve “bipartisan agreement to make major policy changes” by ”requiring that amendments to the Guidelines receive five votes from the Commission’s seven voting members.”

whine160814At the time, Kennedy complained that “[i]n recent years, the Commission has lost its way and begun forcing through amendments on party-line votes.” The Commission has seven voting members. No more than four members can belong to the same political party.

S.4135 never went anywhere, and it will die with the end of the 118th Congress in 10 days or so. Nevertheless, last June, retired US District Judge John Gleeson, a member of the Commission, met with Kennedy and – according to the Senator – “acknowledged the concerns raised about the Commission’s recent practices and confirmed that the Commission will return to making changes on a bipartisan basis.”

“I look forward to seeing the fruits of this commitment,” Kennedy said at the time.

The Commission is now seeking to harvest those fruits by issuing a request that the public comment on whether “it should provide further guidance on how the existing criteria for determining whether an amendment should apply retroactively are applied” and “[i]f so, what should that guidance be? Should it revise or expand the criteria? Are there additional criteria that the Commission should consider beyond those listed in the existing Background Commentary to § 1B1.10?”

The answer to whether there should be additional criteria is self-evident, especially because the same players (except for Rubio, leaving Congress for a position in President-elect Trump’s Cabinet) will be back in the Senate.

usscretro230406What the Commission decides will only partially address the Senators’ principal beef against any USSC proposal that passes on a 4-3 vote (at least until the Republicans again hold a majority on the Commission).

Third Circuit Judge L. Felipe Restrepo’s USSC term expires next October, the earliest chance Trump will have to tip the balance of the Commission to conservative. Given that Trump’s previous nominees to the Commission (never approved by the Senate) included US District Judges Danny Reeves and Henry “Hang ‘em High” Hudson, the likelihood that 4-3 Commission decisions will start looking good to Kennedy, Cruz and the others is fairly high.

Other USSC proposals for the amendment cycle include

• creating an alternative to the “categorical approach” used in the career offender guideline to determine whether a conviction qualifies a defendant for enhanced penalties;

• addressing the guidelines’ treatment of devices designed to convert firearms into fully automatic weapons (Glock switches and drop-in auto sears);

• adding a provision to the use of a stolen gun enhancement that requires that the defendant knew the gun was stolen; and

• resolving a circuit split on whether a traffic ticket in an “intervening arrest” that can serve to bump up criminal history.

Public comments are due by February 3, 2025, with replies due by February 18, 2025.

alicecuriouser230317Curiously, Judge Reeves said, “Over the next month, the Commission will consider whether to publish additional proposals that reflect the public comment, stakeholder input, and feedback from judges that we have received over the last year – including at the roundtables we have held in recent months on drug sentencing and supervised release.”

Whether this is a teaser that changes in the Commission’s approach to meth will be on the table is unclear.

Sentencing Commission meeting video (December 19, 2024)

Sentencing Commission Public Hearing (Video) (August 8, 2024)

Sentencing Commission, Final Priorities for Amendment Cycle (August 8, 2024)

S.4135, Consensus in Sentencing Act

Sen John Kennedy, Kennedy confirms that Sentencing Commission will return to bipartisan agreement for changes to Sentencing Guidelines (June 3, 2024)

USSC, Issue For Comment: Criteria for Selecting Guideline Amendments Covered by §1B1.10 (December 19, 2024)

USSC News Release, U.S. Sentencing Commission Seeks Comment on Proposals to Promote Public Safety And Simplify Federal Sentencing (December 19, 2024)

USSC, Summary of Proposed 2025 Amendments (December 19, 2024)

– Thomas L. Root

Nothing to See Here Anymore,’ BOP Tells Court About FCI Dublin – Update for June 25, 2024

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

But first, a mea culpa…

THOSE PESKY DETAILS

embarrassedLast week, I reported on a U.S. Sentencing Commission methamphetamine study that debunked the idea that there was anything special about meth with purity over 90%, despite the fact that 80% plus pure meth comes with much higher Guideline sentencing ranges.

I reported that the study found that meth tested by the government in fiscal year (FY) 2022 averaged over 90% pure with a median purity of 98%, “measurements dramatically higher than just two years before, when meth purity ranged from 10 to 80%.”

An alert reader questioned my data. It turns out he was correct.

According to the DEA, meth purity ranged from 10% to 80% in the year 2000, NOT 2020. My embarrassment at my error tests out at 100% purity, and I thank my reader for pointing out the mistake.

USSC, Methamphetamine Trafficking Offenses In The Federal Criminal Justice System (June 13, 2024)

‘WE BURIED THE DUBLIN PROBLEM, SO LET’S STOP TALKING ABOUT IT,’ BOP TELLS COURT

The Federal Bureau of Prisons has asked the U.S. District Court in Oakland to dismiss a class action lawsuit demanding systemic changes at FCI Dublin as moot, on the grounds that no one is imprisoned there anymore.

“The injunctive claims addressing conditions of confinement at FCI Dublin—a facility where no inmates are confined—must be dismissed as moot,” the motion filed last Tuesday argues. The plaintiff’s money damages claims, consideration of which have been stayed until August, would remain on file.

The suit was filed last August by female inmates, alleging rampant sexual assault and retaliation by Dublin staff. BOP abruptly shut down the facility in April shortly after Judge Yvonne Gonzalez Rogers appointed a special master to oversee changes at the prison.

paniccrowd240625

The BOP’s motion admits that Dublin was in “dire need of immediate change.” The agency said, “Following its own deliberative process, BOP leadership determined that it needed to close FCI Dublin and transfer all female adults in custody (AICs) to other federal facilities. The transfer process was conducted subject to various court orders and in coordination with the Court’s special master. That process is now complete, and the AICs previously confined at Dublin are now at new facilities. If Dublin is eventually reopened, it will not be used to house female AICs again.”

The Court has described the closure of Dublin as “hasty and chaotic” but the BOP claims it “was carefully planned” and that the Court was privately advised a month before the April 15 mass movement.

A group of Congressional representatives is investigating allegations that the transfers were conducted inhumanely.

Motion to Dismiss, California Coalition for Women Prisoners v, BOP, ECF 326, Case No 4:23-cv-4155 (ND Cal, June 18, 2024)

KQED-TV, Biden Administration Seeks to Dismiss Lawsuit Over Bay Area Women’s Prison Abuses (June 18, 2024)

– Thomas L. Root

Raising the Bar on Methamphetamine Purity – Update for June 18, 2024

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

SENTENCING COMMISSION METH STUDY ACKNOWLEDGES REALITY

reeves230706Ever since U.S. District Judge Carlton Reeves (Southern District of Mississippi)—who happens to have a side gig as chairman of the U.S. Sentencing Commission—ruled that these days everybody’s methamphetamine was so pure that the “methamphetamine actual” and “ice” purity enhancement in § 2D1.1 of the Guidelines made no sense, people have been asking me when the USSC is going to catch up with reality and throw out the higher sentencing ranges for 90% pure and higher meth.

I thought that we might have seen it in this year’s proposed amendments, but it didn’t happen. However, a Sentencing Commission study released last week suggests that the Commission may be looking for a change in next year’s amendment cycle.

It’s important, too. Over the past 20 years, meth trafficking offenses have risen by 168%, now accounting for half of all federal drug trafficking cases.

The study found that meth tested in fiscal year (FY) 2022 averaged over 90% pure with a median purity of 98%. Furthermore, the meth was uniformly tested at high purity whether it was classified for sentencing as a meth mixture (91% average purity), meth actual (93%) or ice (98%). These purity averages are dramatically higher than just two years before, back when methamphetamine purity ranged from 10 to 80%.

meth240618Under 21 U.S.C. § 841(b)(1)(A)(viii) and (B)(viii), it takes ten times as much weight of a meth mixture as it does actual meth or ice to trigger mandatory minimum penalties. So let’s say you’re a criminal newbie caught with a pound of meth of average purity. That would be 458 grams. If you are sentenced for 458 grams of “a mixture containing methamphetamine,” your advisory sentencing range would be 78-97 months. But if the government pushes for sentencing your pound as “methamphetamine actual,” you would have a mandatory minimum sentence of 120 months with a sentencing range topping out at 135 months.

As the late Johnny Cochrane is reputed to have said (at least by South Park) in his fictional but brilliant Chewbacca defense, “That does not make sense.”

chewbacca240618The Commission can change its Guidelines (and likely will in the next year or two), but altering 21 U.S.C. § 841(b) would require Congressional action.

Meth trafficking sentences averaged 91 months in FY 2022, the longest average among major federal drug trafficking offenses, more than fentanyl (65 months) and heroin (66 months). Meth trafficking offenses carried mandatory minimum penalties more often (74%) than all other drug trafficking offenses (57%).

USSC, Methamphetamine Trafficking Offenses In The Federal Criminal Justice System (June 13, 2024)

United States v. Robinson, Case No. 3:21-cr-00014 (S.D.Miss., December 23, 2022)

– Thomas L. Root