We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
SCOTUS NARROWS REACH OF IMMIGRATION STATUTE IN ORDER TO SAVE IT
The Supreme Court ruled last Friday in United States v. Hansen that 8 USC 1324(a)(1)(A)(iv) – which prohibits “encourag[ing] or induc[ing]” illegal immigration – “forbids only the intentional solicitation or facilitation of certain unlawful acts.”
The 9th Circuit had held that the statute was an unconstitutional abridgment of the 1st Amendment because it criminalized “immigration advocacy and other protected speech.” Justice Barrett’s 7-2 opinion ruled that “[t]hat was error. Properly interpreted, this provision… does not prohibi[t] a substantial amount of protected speech — let alone enough to justify throwing out the law’s plainly legitimate sweep.”
A “substantial amount” sounds a lot like a new 1st Amendment test.
Justice Jackson, joined by Justice Sotomayor, wrote in a dissent that “the majority departs from ordinary principles of statutory interpretation to reach [its] result. Specifically, it rewrites the provision’s text to include elements that Congress once adopted but later removed as part of its incremental expansion of this particular criminal law over the last century. It is neither our job nor our prerogative to retrofit federal statutes in a manner patently inconsistent with Congress’s choices…”
ACLU lawyers who supported Hansen’s appeal said they welcomed the court’s action narrowing the scope of the statute. “The Supreme Court has drastically limited the encouragement provision to apply only to intentional solicitation or facilitation of immigration law violations,” said Esha Bhandari, deputy director of the ACLU’s Speech, Privacy and Technology Project. “As written by Congress, the law has left people wondering what they can safely say on the subject of immigration. Now we expect the government to respect free speech rights and only enforce the law narrowly going forward.”
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
SOME BRIEF ITEMS FROM LAST WEEK…
Senators Want BOP COVID Deaths Investigated: Twenty-two Democrat senators asked the Justice Department inspector general on Thursday to review all of these deaths. “Although BOP investigates each case involving the death of an individual in their custody, these one-off reviews of each individual COVID-19-related death may not be sufficient to determine system-wide failures in care across the entire federal prison system,” they wrote. “A comprehensive review would not only provide a full accounting of the circumstances surrounding each individual loss of life but would also help policymakers establish whether the appropriate BOP policies were in place and being followed in each case, as well as whether new policies or practices should be implemented to reduce risk during the current pandemic and to prevent similar outbreaks in the future.”
BOP Launches Newsletter: The BOP Reentry Services Division announced last week it has launched a national inmate newsletter “to enhance communication with the inmate population.” Entitled “Reentry Quarterly,” this publication includes a variety of articles focused on reentry resources for a diverse audience with a goal of providing something meaningful for every inmate. Topics have included post-release housing, inmate discipline, financial responsibility, Medicare, anger management, education, drug treatment, career/work, and parenting.
Immigration Offenses Are Number 1 in 2020: Immigration offenses, followed by drug trafficking, were the most common crimes sentenced in federal courts last year, according to a US Sentencing Commission issued last week.
Reflecting the Trump administration’s crackdown on undocumented immigrants, immigration violations alone accounted for 41% of the caseload, a slight uptick from 38% the previous year, the USSC said in its annual report.
The majority of those sentenced were Hispanic and just over 46% of the Hispanics were non-US citizens.
COVID News: The BOP vaccinated 2,481 inmates last week, bringing the total to 11.3% of the inmate population. During his testimony on March 18, BOP Director Michael Carvajal told the House Subcommittee on Commerce, Justice, Science and Related Agencies said that 100% of inmates will have been offered the vaccine by July 2021.
According to Carvajal, home confinement has been successful. Only 21 people sent home have been returned to prison, and only one of those for new criminal conduct. The others were sent back for violations of conditions.
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
TRUMP’S FOCUS ON IMMIGRANTS REFLECTED IN NEW SENTENCE DATA
The US Sentencing Commission’s 3rd Quarter Preliminary Fiscal Year 2019 Data, released last week, shows that the Dept. of Justice has responded to President Trump’s preoccupation with illegal immigrants. Immigration cases increased from 34.7% to 37.7% (an increase of almost 9%, for the math-challenged), but drug prosecutions fell 1.2% and fraud cases fell 0.8%. Immigration offenses were only 30.5% of total prosecutions in 2017, meaning that in the last two years, the use of federal criminal law resources to prosecute (and imprison) illegal immigrants has increased by over 22%.
If DOJ’s pace of prosecutions in 2019 continues through the end of the fiscal year next week, federal criminal cases will have increased by about 4.3% over last year. Of course, this assumes that the rate of prosecutions remains the same throughout the year, but if the assumption holds, it is clear that reduction of mass incarceration is a Congressional concern, and not so much one for the Executive Branch.
There is a glimmer of good news, however. The average federal sentence continues to fall, from 44 months in FY 2018 to 43 months in the first three quarters of FY2019. In 2017, half of all defendants received sentences of under 21 months and half received sentences of more than 21 months. So far in FY 2019, half of all defendants got sentences under 18 months, and half got over.
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
SOME AUSAS ARGUING AGAINST FSA RETROACTIVE SENTENCES
Inmates filing for retroactive application of the Fair Sentencing Act to crack sentences imposed before August 2010 have run into a confusing morass of judicial interpretations and U.S. Attorney’s Office positions.
A substantial number (1,610, according to the Dept. of Justice a week ago) have received sentencing reductions. A number of others in a few districts are sitting in limbo, on file for months without action. Still others are like Monae Davis, who walked out of prison March 7 because of the retroactive Fair Sentencing Act(included as Section 403 of the First Step Act) . But as Monae looks for work and re-connects with his family, prosecutors are working to undo the resentencing that shaved six years off his 20-year prison sentence, because the government says the amount of drugs they handled was too large to qualify for a reduced sentence.
Monae pled guilty to selling 50 grams or more of crack, resulting in his 20-year sentence. Under the retro FSA, that carries a minimum sentence of five years, less than half the time he has already served. But prosecutors say Monae should not get a break, because in his plea deal he admitted to handling between 1.5 kilograms and 4.5 kilograms. That’s too high, even under current law and guidelines, to qualify for a sentence reduction.
DOJ told Reuters last week that it is just trying to ensure that prisoners seeking relief under the First Step Act aren’t treated more leniently than defendants now facing prosecution. DOJ said prosecutors now have a greater incentive than previously to bring charges that more closely reflect the total amount of drugs they believe to be involved. “This is a fairness issue,” a DOJ spokesman said.
Speaking of fairness, Attorney General William Barr announced last Thursday that the BOP would resume executions of inmates sentenced to death in December, with five lethal injections scheduled through the end of January 2020. “The Justice Department upholds the rule of law — and we owe it to the victims and their families to carry forward the sentence imposed by our justice system,” Barr said in a statement.
9TH CIRCUIT HOLDS THAT ELUDING IMMIGRATION ONLY HAPPENS AT PORTS OF ENTRY
Oracio Corrales-Vazquez, a Mexican citizen, walked into the US over the mountains east of Tecate, California. He only made it about four miles into U.S. territory when Customs and Border Patrol picked him up. Oracio was charged with eluding examination or inspection by immigration officers” in violation of 8 USC § 1325(a)(2).
Last week, a 9th Circuit panel reversed his conviction, holding that an alien who crosses into the country at a non-designated time or place is not guilty of a § 1325(a)(2) offense. Rather, to convict a defendant under § 1325(a)(2), the government must prove that the alien’s criminal conduct occurred at a time and place designated for “examination or inspection by immigration officers,” that is, at a port of entry open for inspection.
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
ANOTHER ONE BITES THE DUST
It’s been rough sailing for “crimes of violence” in the last few years, as courts have repeatedly limited the types of prior offenses that may be considered by federal courts as crimes of violence. This week, another one – a Florida burglary offense – fell.
This may seem rather dry to a lot of people. Who cares whether a past conviction was violent or not? A lot of people, it turns out, because whether a defendant’s prior crimes are crimes of violence or not makes a dramatic difference in sentencing. Under the Armed Career Criminal Act, for example, a convicted felon caught during deer season with a shotgun faces a maximum sentence of 10 years for violating 18 USC 922(g). But if his criminal history includes three crimes of violence, the minimum sentence starts at 15 years and maxes out at life. A number of other statutes and Guidelines also mete out additional punishment depending on whether a defendant’s criminal history is violent or not.
But doesn’t that sound like a good idea? Who needs violent criminals stalking our streets? After all, you convicted felons out there, sow the wind, reap the whirlwind. If you can’t do the time, don’t do the crime…
Sure, piling on additional punishment for already-punished misdeeds is viscerally appealing, until you get into the fine print of what the law considers a violent crime to be. Right now, it’s defined as any burglary, extortion, arson or crime involving an explosive. Additionally, it’s any other crime that involves force or the threat of force.
Most of that sounds good, but what about the guy who 20 years ago, used to sneak into the neighbors’ chicken coops and steal some eggs? Or boosted some Twinkies from Walmart? Those are burglaries in most states. Those “crimes of violence” hardly make him a likely chainsaw killer on a rampage.
Part of the problem is that the parameters of the law of burglary vary widely from state to state. What’s called a burglary in one state may be called a simple breaking and entering elsewhere. In other words, the “crime of violence” definition was punishing people depending on whether state legislatures decided to use the “b”-word – burglary – in a statute.
In Taylor v. United States, the U.S. Supreme Court limited the term “burglary” to “generic” burglary – unlawful entry into a building or other fixed structure. Breaking into a car, boat, or airplane wouldn’t count. Taylor further made the fateful determination that the analysis of whether a prior conviction for “burglary” satisfied the generic definition of burglary was to be performed on a “categorical” basis. That is, the sentencing court was not to look at the actual facts of the case to decide whether the defendant’s conduct constituted generic burglary; rather, the court was to analyze the statute under which he was convicted to determine whether it “categorically” qualified as generic burglary.
The Supreme Court followed that decision in 2013 with Descamps v. United States, which expanded the use of the “categorical” approach. Johnson v. United States followed two years later, in which the Supreme Court eviscerated the statutory definition of “crime of violence” by invalidating the catch-all residual clause, which included in the definition any offense that carried the risk of harm to a victim, regardless of a defendant’s intent.
Then, last summer, the Supreme Court decided Mathis v. United States, which resoundingly endorsed and further broadened the use of Descamps’ “categorical approach.”
One of the guys who cares about it is Juan Gabriel Garcia-Martinez. In 2009 Juan, a Mexican citizen in the United States illegally, was convicted in Florida of 2nd-degree burglary of a dwelling under Florida Statute § 810.02(3).
Florida defines burglary as “[e]ntering a dwelling, a structure, or a conveyance with the intent to commit an offense therein…” with the intent to commit an offense or a forcible felony. A 2nd degree burglary is one in which while committing the offense, the offender does not make an assault or battery and is not and does not become armed with a dangerous weapon or explosive. A “dwelling” is “a building or conveyance of any kind, including any attached porch, whether such building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it and is designed to be occupied by people lodging therein at night, together with the curtilage thereof.” § 810.011(2)
After his Florida 2nd degree burglary conviction, Juan got booted from the United States and told never to come back. But he did. However, four years later, Juan was back, and immigration agents caught up with him in a Florida jail after he had been arrested for battery. He later pled guilty to illegal reentry after deportation.
The presentence investigation report assigned a base offense level of 8 under USSG § 2L1.2(a) and a 16-level increase under USSG § 2L1.2(b)(1)(A)(ii) for having committed a crime of violence – the 2nd degree burglary – prior to being deported. As a result, Juan faced a sentence of 41 to 51 months imprisonment.
On Wednesday, the 11th Circuit vacated the sentence. It held that the Florida 2nd-degree burglary statute was broader than the generic definition of burglary. The Florida definition of a “dwelling” included not just the building itself, but the curtilage as well. Curtilage is defined in Florida as an enclosure around a residence, such as a law surrounded by a hedgerow or a fenced-in backyard. The Circuit said, “Florida’s inclusion of curtilage in its definition of dwelling makes its burglary of a dwelling offense non-generic. Curtilage… is not categorically used or intended for use as a human habitation, home or residence because it can include the yard and, as the State acknowledges, potentially even outbuildings as long as they are located within the enclosure.”
Everywhere inside the stockade is curtilage…
Because Florida law defined curtilage as part of the dwelling for purposes of burglary, the 11th held the statute was indivisible, and thus – no matter what the facts of Juan’s burglary might have been – it was not a crime of violence.
The effect of the holding will be to cut Juan’s Guidelines range to a maximum of 14 months.
The 9th Circuit had held that the statute was an unconstitutional abridgment of the 1st Amendment because it criminalized “immigration advocacy and other protected speech.” Justice Barrett’s 7-2 opinion ruled that “[t]hat was error. Properly interpreted, this provision… does not prohibi[t] a substantial amount of protected speech — let alone enough to justify throwing out the law’s plainly legitimate sweep.”
