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The Fine Print Counts In A Deal With the Devil – Update for February 20, 2024

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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.

‘SHUT UP AND SIGN’ LEADS TO A LOT OF BUYER REMORSE

About 95% of all federal indictments end with a plea agreement where the defendant agrees to take a guilty plea in exchange for government promises that often seem evanescent if not illusory. If I had a dime for every prisoner who has told me that he or she only signed because defense counsel said to, I would be writing this on the beach of my private Caribbean island instead of at a desk looking out at February snow in Ohio.

plea161116Two cases decided last week remind all prisoners – including those who have already signed their plea agreements – that in a plea agreement, every promise counts. A defense attorney’s disservice to the client is never greater than when he or she rushes them into signing a “good deal” without first painstakingly walking the defendant through every provision and explaining it in detail.

Eric Rudolph (remember him?) decided to express his political views by blowing up Olympic venues and abortion clinics. The innocents he slaughtered in the process were just icing on his demented cake. After five years on the lam, Eric was caught dining out of a dumpster in Murphy, North Carolina, and was later convicted of one 18 USC § 844(i) arson offense and five companion 18 USC § 924(c) counts for using a firearm (bombs studded with nails qualify under the statute as “firearms”) in the commission of the arson.

Eric’s approach to the plea agreement was unrepentant. He said he had “deprived the government of its goal of sentencing me to death,” and that “the fact that I have entered an agreement with the government is purely a tactical choice on my part and in no way legitimates the moral authority of the government to judge this matter or impute my guilt.”

Uh-huh. Eric’s statement brings to mind old Gus McRae (Lonesome Dove) addressing outlaw Dan Suggs, who was about to be executed with his brother but expressed only hatred and contempt:

Gus McCrae: I’ll say this, Suggs; you’re the kind of man it’s a pleasure to hang. If all you can talk is guff, you can talk it to the Devil.

supermaxcell240220I’m no fan of mandatory life sentences and even less of the death penalty, but it’s amazing how malleable our principles can be when we’re punched in the face with pure-D evil. Eric undeservedly got a life sentence, which he’s spending in the mountains of Colorado (although he never gets to see them from his concrete cell at ADX Florence).

As part of the plea deal he was proud of for depriving the Feds of the death penalty, Eric waived the right to collaterally attack his sentence in any post-conviction proceeding, including under 28 USC § 2255. But because of what the Court disapprovingly calls “the evergreen litigation opportunities introduced by the categorical approach” to § 924(c) litigation,” Eric – who has apparently decided that freedom some day isn’t such a bad goal – has filed two § 2255s so far. Last week, the 11th Circuit turned down his second one as barred by the plea agreement and, in so many words, told Eric to enjoy his place in the mountains for the rest of his life.

In the last few years, courts have applied the Supreme Court’s “categorical” approach to determining whether an offense is a “crime of violence” within the meaning of 18 USC § 924(c)(3)(A), that is, “an offense that is a felony and has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” Even Eric’s district court agreed that after the Supreme Court’s decision in United States v. Davis, his arson offenses were no longer crimes of violence under the federal statute (because one can be convicted of arson for burning down his or her own property). But that didn’t matter, the district court said, because Eric had given away his right to bring a § 2255 motion to correct the error.

Last week, the 11th Circuit agreed. It held that “a plea agreement is, in essence, a contract between the Government and a criminal defendant. And because it functions as a contract, a plea agreement should be interpreted in accord with what the parties intended. In discerning that intent, the court should avoid construing a plea agreement in a way that would deprive the government of the benefit that it has bargained for and obtained in the plea agreement.”

Eric’s plea deal, the 11th said, contained the common waiver of the right to bring a collateral attack on his sentence. But Eric argued that the plea deal only prohibited collateral attacks on the sentence, while his collateral attack was on the § 924(c) convictions.

dumpsterfire249220Eric’s argument was a dumpster fire, the Circuit said. “The text of 28 USC § 2255, the history of that same statute, and the habeas corpus right that it codified, all point in the same direction: 2255 is a vehicle for attacking sentences, not convictions.” Starting with the origins of English habeas corpus through the codification of 2255 up to last summer’s Supreme Court Jones v. Hendrix decision (where SCOTUS said “Congress created 2255 as a separate remedial vehicle specifically designed for federal prisoners’ collateral attacks on their sentences”), the 11th concluded that the history, the plain text of the statute “shows the same, as does Rudolph’s requested relief… [His] motions are collateral attacks on his sentences, so his plea agreements do not allow them.”

Winning his § 2255 would have been a huge deal for Eric. The 18 USC § 844(i) conviction carries a maximum 10-year sentence. Each of the § 924(c) convictions carries a maximum of life. Had Eric been allowed to bring the § 2255, he would have gone from his concrete cell straight to walking the streets (something most of his victims would never enjoy again).

*     *     *

Meanwhile, over in Louisiana, Keesha Dinkins – a front-office worker at Positive Change healthcare clinic – was swept up in a Medicaid billing fraud. She didn’t make a dime from the fraud beyond her normal salary, but her lawyer had her sign a plea agreement for 24 months and restitution of $3.5 million.

positivechange240220Despite the deal she made, she argued that she should not be on the hook to share the restitution equally with Positive Change’s owner (who got a lot more time than she did). Last week, the 5th Circuit told her that it was Positive that it would not Change her restitution:

The criminal justice system in this country relies on plea agreements to provide efficient resolutions to criminal cases. Indeed, over 95 percent of federal criminal cases are resolved without trial. It would undermine the principle that plea bargains are contracts to hold that a party can agree to a specific amount of restitution, supported by record evidence, and then in the next breath, challenge an order imposing that exact amount of restitution.

The 5th observed that her plea agreement provided that “Dinkins — not Positive Change — was responsible for the $3.5 million loss.” That is how the judgment will remain.

Rudolph v. United States, Case No 21-12828, 2024 U.S. App.  LEXIS 3278 (11th Cir., February 12, 2024)

United States v. Johnson, Case No 22-30242, 2024 U.S. App. LEXIS 3487 (5th Cir., February 14, 2024)

– Thomas L. Root

Summer of Our Discontent – Update for July 10, 2023

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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.

JONES TSUNAMI ROLLING OVER PENDING CASES

The two-week-old Jones v. Hendrix decision is claiming its first victims.

innocent210504You recall that in Jones, the Supreme Court held that if a federal prisoner has previously filed a § 2255 motion – even one addressing a completely unrelated issue – he or she cannot file a second post-conviction challenge arguing that, under a new Supreme Court decision that changes a statutory interpretation, even if the change means that the prisoner was not guilty of a crime.

In other words, as attorney Adam Unikowsky blogged last week, “Even if the federal prisoner is indisputably innocent, the prisoner must serve his full sentence.”

I know of a number of pending district court 28 USC § 2241 cases that Jones has already torpedoed. Last Friday, the 7th Circuit added to the carnage.

DeAngelo Sanders had argued in a 28 USC § 2241 habeas petition that he did not have the required three prior drug or violent convictions for a mandatory minimum 15-year sentence under the Armed Career Criminal Act. His filing came well after his § 2255 post-conviction motion had been denied, and only because the Circuit had just ruled that a conviction for Illinois residential burglary cannot be used to enhance an ACCA sentence.

The Circuit was in the middle of considering whether DeAngelo could rely on the 28 USC § 2255(e) saving clause to raise his actual-innocence-of-ACCA-sentence when the Supreme Court handed down Jones. Last Friday, the 7th denied DeAngelo’s case.

The Supreme Court’s Jones decision ruled that “Section 2255(h) specifies the two limited conditions in which Congress has permitted federal prisoners to bring second or successive collateral attacks on their sentences,” the Circuit said. “The inability of a prisoner with a statutory claim to satisfy those conditions does not mean that he can bring his claim in a habeas petition under the saving clause. It means that he cannot bring it at all. Congress has chosen finality over error correction in his case.”

courthouseclosed170605The same thing happened to Carlous Horton’s habeas petition, which argued that his mandatory life sentence for drug distribution, based on three prior drug trafficking convictions, should be vacated. “The government conceded that two of Carlous’s prior drug convictions are not proper § 841 predicates under Mathis,” the 7th said last Friday, “and a third – the 1995 Illinois cocaine conviction mentioned above – also could not be counted as a predicate under a recent Circuit decision in United States v. Ruth. But the government opposed relief, arguing that although Carlous’s habeas petition was premised on new statutory interpretation developments, he had not been previously precluded by Eighth Circuit precedent from making” the same arguments.

Last Friday, the Circuit dismissed Carlous’s case, holding that Jones kicked the legs from under his claim as well.

Adam Unikowsky concedes that the Jones majority opinion, written by Justice Thomas, “is well-written and persuasive. He puts forward a powerful argument that under the plain text of the applicable federal statutes, federal prisoners are forbidden from bringing this type of challenge. Justice Jackson’s dissent is also well-written and persuasive. She puts forward a powerful argument that the majority’s interpretation conflicts with congressional intent and would lead to unfair consequences. In the end, Jones presents a tough, close issue.”

Rather than focus on Jones’s merits, Unikowsky argues for a statutory fix that would allow prisoners to file successive Section 2255 petitions when new Supreme Court decisions establish their innocence. “This is not a tough, close issue,” he writes. “It is an obviously correct position that should prevail by unanimous voice votes in the House and Senate.”

congress151220Writing in Law 360, Northeastern University law professor Daniel Medwed agreed. “Perhaps Congress could add a third route, and even tailor it narrowly to gain bipartisan support,” Medwed wrote. “Specifically, Congress could change the law to permit a successive or second habeas filing when the Supreme Court has recognized a new statutory principle that is made retroactive and that could be relied on by those in custody to claim legal innocence. This would address Justice Jackson’s core concern about ‘slamming the courtroom doors to a possibly innocent person,’ while simultaneously avoiding any reference to the saving clause, let alone making that provision the ‘license for unbounded error correction’ that Justice Thomas feared.”

Sanders v. Joseph, Case No. 19-2504, 2023 U.S. App. LEXIS 17176 (7th Cir. July 7, 2023)

Horton v. Lovett, Case No. 21-1004, 2023 U.S. App. LEXIS 17177 (7th Cir. July 7, 2023)

Adam’s Legal Newsletter, Imprisoning innocent people is bad (July 2, 2023)

Law360, Justices’ Habeas Ruling Further Saps Writ Of Its Strength (July 7, 2023)

– Thomas L. Root

Judge Friendly Had It Right: Innocence Really Is Irrelevant – Update for June 23, 2023

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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.

JONESING FOR SOME UNDERSTANDING
Not anymore...
Not anymore…

Back in 1970, Second Circuit Judge Henry J. Friendly titled his proposal for a unitary approach to collateral attack “Is Innocence Irrelevant? Collateral Attack on Criminal Judgments.” We got the answer yesterday: Yes, it is.

The response has been fast and furious to the Supreme Court decision in Jones v. Hendrix, which held that federal prisoners may not rely on the saving clause in 28 USC § 2255(e) to avail themselves of a Supreme Court decision that the statute under which they were convicted was wrongly applied by the trial court.

Jones v. Hendrix held that a prisoner who has done 27 years for being a felon in possession of a gun (28 USC § 922(g)(1)) could not bring a habeas corpus action alleging he was innocent of the conviction because the Supreme Court had redefined § 922(g) in the 2019 Rehaif v. United States decision to require that a defendant know that he was prohibited from possessing a gun.

Hendrix held that petitioner Marcus Jones could not file such a petition, leaving him without recourse. In so holding, the decision drives a stake through the heart of 28 USC § 2255(e).

Subsection 2255(e), known as the saving clause, provides that

An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.

Before yesterday, most courts accepted that where a change in statutory interpretation made federal prisoners actually innocent of the offense of which they had been convicted, they could resort to the classic habeas corpus petition (28 USC § 2241). That was because unless they were that magic one-year period after conviction during which they could file a 28 USC § 2255 motion, a reinterpretation of a statute – rather than a constitutional holding – did not open up their time period in which to bring a § 2255 motion.

manyguns190423The Supreme Court sanctioned such as procedure in 1998’s Bousley v United States ruling. After the Supreme Court ruled in Bailey v. United States that 18 USC § 924(c) prohibiting the use of a firearm in drug and violent offenses meant more than mere possession of the gun, many people convicted of § 924(c) offenses, perhaps because they had been selling pot at the schoolyard but had a .22 rifle in the closet at home, were suddenly no longer guilty of the crime for which they were doing time. But because Bailey just reinterpreted § 924(c) without finding the prior interpretation unconstitutional, the prisoners were precluded from bringing a 28 USC § 2255 to challenge their convictions.

Most federal appeals courts permitted prisoners convicted under the broader interpretation of § 924(c) to challenge their convictions even if they’d previously filed a § 2255 or were beyond the original deadline. In Bousley, the Supremes sanctioned that approach provided that a change in statutory interpretation since a § 2255 motion was due to be filed made a defendant actually innocent of the offense.

The saving clause procedure permitted by Bousley was so settled that the Solicitor General refused to defend the position that petitioner Marcus Jones was precluded from raising his actual innocence of a gun possession charge under the saving clause. Instead, the Government argued for a slightly stricter showing a defendant would have to make in order to use a § 2241 petition under the saving clause.

The Supreme Court had to appoint a law firm to argue Warden Hendrix’s position. That firm, New York white-shoe firm Sullivan and Cromwell, took a victory lap yesterday, leading Above the Law to observe

It’s a sad day that someone will spend 20+ years in prison for a conviction that never actually existed… I should clarify. This has been a sad day for some. It’s not stopping the attorneys over at Sullivan & Cromwell, the firm appointed by the Court to argue that Jones shouldn’t have a second habeas petition no matter what, from rubbing the victory in everyone’s faces over on Twitter.

To be sure, not everyone was depressed over yesterday’s decision. Crime & Consequences called Jones v. Hendrix a “major victory for finality of judgments,” arguing that in the decision, “[t]he Court rejected an attempt by the petitioner to do ‘an end-run around AEDPA,’ i.e., the limits oVictory220113n collateral review of convictions enacted by Congress in the Antiterrorism and Effective Death Penalty Act of 1996…. Even more important, the Court has finally rejected the notion that the Suspension Clause of the Constitution requires collateral review of final judgments by courts of general jurisdiction. That clause is limited to the scope of habeas corpus understood at the time, which did not include such review. Congress may authorize such review, of course, but it is fully capable of imposing such limits as deems to be good policy.”

Most of the commentary was negative, however. Vox complained

in [Justice] Thomas’s telling, the main purpose of this “inadequate or ineffective” provision is to protect prisoners who are unable to bring a habeas challenge in the court where they were originally convicted — such as if Congress later passed a law eliminating that court. Indeed, in a footnote, Thomas suggests that the “inadequate or ineffective” provision may largely be a relic of an age before the federal interstate highway system was built, when transporting a prisoner to the judicial district where they were convicted “posed difficulties daunting enough to make a § 2255 proceeding practically unavailable.”

Under Jones v. Hendrix, a “prisoner who is actually innocent, imprisoned for conduct that Congress did not criminalize, is forever barred … from raising that claim, merely because he previously sought postconviction relief,” Justices Sotomayor and Kagan wrote in a two-page dissent. “It does not matter that an intervening decision of this Court confirms his innocence. By challenging his conviction once before, he forfeited his freedom.”

The franchise dissent, however, in Jones belonged to Justice Jackson. In addition to what I noted yesterday, she observed that the majority’s approach sanctions dramatically different treatment of prisoners with virtually identical habeas claims:

Consider two individuals who have been convicted of the same federal crime—perhaps two codefendants who were tried and sentenced together. Both complete their direct appeals, but only one files a § 2255 motion within AEDPA’s statute of limitations, while the other one decides not to or misses the deadline. If § 2255(h) bars a successive petition raising a legal innocence claim, then when Rehaif is handed down—altering the elements of the crime of conviction such that both prisoners have a colorable claim of legal innocence—only the one who did not previously file a § 2255 petition can raise this retroactive statutory innocence claim.

Writing in Reason, George Mason University law professor Ilya Somin suggested that the very act of keeping a legally innocent person in prison violates the Due Process Clause of the Fifth Amendment: “The clause bars the government from depriving a person of ‘life, liberty, or property, without due process of law.’ Keeping a man in prison when the activity he was convicted of was not actually illegal seems an obvious deprivation of ‘liberty’ without any basis in ‘law.’ And, because Jones never had a chance to raise the relevant issue, this practice can’t be justified on the basis of efficiency or procedural finality.”

RIPsaving230623University of Michigan law professor Leah Litman argues in Slate that “as a result of this opinion, people with illegal convictions and sentences—people who are legally innocent—will be stuck in prison for no good reason because the courts screwed up, not because they did. The law certainly did not require this result. And the Jones debacle carries a few warnings about the nightmare at One First Street. One is that the Jones majority is part of a larger trend of the Supreme Court believing that the court (and all federal courts) are above reproach and can do no wrong…”

Something that has not been pointed out yet is how Jones v. Hendrix may energize the compassionate release business. The Sentencing Commission has proposed adding USSG 1B1.13(a)(6), which holds that non-retroactive changes in the law may be “considered in determining whether the defendant presents an extraordinary and compelling reason, but only where such change would produce a gross disparity between the sentence being served and the sentence likely to be imposed at the time the motion is filed, and after full consideration of the defendant’s individualized circumstances.”

It would be hard to imagine a disparity grosser than doing time for an offense of which one was innocent.

Above the Law, Sullcrom Is Super Proud Of Themselves For Making It Easier For The State To Confine The Innocent (June 22, 2023)

Crime & Consequences, Major Victory for Finality of Judgments (June 22, 2023)

Vox,The Supreme Court’s latest opinion means innocent people must remain in prison (June 22, 2023)

Washington Post, Supreme Court denies prisoner second chance to show innocence (June 22, 2023)

Reason, A Troubling Supreme Court Habeas Decision (June 22, 2023)

Slate, Clarence Thomas’ Latest Criminal Justice Ruling Is an Outright Tragedy (June 22, 2023)

– Thomas L. Root

Supreme Court Leaves ‘Actually Innocent’ In Prison – Update for June 22, 2023

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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.

‘SAY IT AIN’T SO!’

aintso230622The Supreme Court today kicked a leg out from under federal prisoners who have been convicted of an offense based on an interpretation that later is abandoned by the Supreme Court, holding in Jones v. Hendrix that § 2255(e) – the so-called saving clause – does not allow a prisoner asserting an intervening change in interpretation of a criminal statute to circumvent the law’s restrictions on filing a second or successive § 2255 motion by filing a § 2241 habeas petition.  

Back in 1998, the Supreme Court seemed to endorse the use of a § 2241 petition where the strict limitations of the new Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) limited second § 2255 motions to cases where a recent Supreme Court constitutional holding or newly-discovered evidence would convince a jury that the petitioner was innocent. The problem was that many landmark criminal decisions by the Supreme Court – such as the holding that a defendant must know that he or she is in a class of people prohibited from possessing a gun (Rehaif v. United States, 2019) – do not resolve constitutional questions at all, but rather just interpret the meaning and scope of criminal statutes.

The 6-3 decision written by Justice Thomas observes that Congress created § 2255 “as a remedial vehicle by which federal prisoners could collaterally attack their sentences by motion in the sentencing court, rather than by a petition for a writ of habeas corpus under § 2241 in the district of confinement. The ‘sole purpose’ of § 2255 was to address the “serious administrative problems” created by district courts collaterally reviewing one another’s proceedings without access to needed evidence and “aggravated” by the concentration of federal prisoners in certain judicial districts that therefore faced “an inordinate number of habeas corpus actions.”

However, § 2255 contained a subsection – § 2255(e) – now known as the saving clause – which many courts (including the Supreme Court) had generally interpreted as letting prisoners file a § 2241 petition in cases where “the remedy by [2255] motion is inadequate or ineffective to test the legality of [a prisoner’s] detention.”

innocent210504Today, SCOTUS held that just because a change in how a law is interpreted makes someone actually innocent of the offense he or she is doing time for, such a new interpretation does not help a prisoner who has already used up his or her § 2255 motion. The Court said:

Section 2255(e)’s saving clause does not authorize that end-run around AEDPA. The clause preserves recourse to § 2241 in cases where unusual circumstances make it impossible or impracticable to seek relief in the sentencing court, as well as for challenges to detention other than collateral attacks on a sentence. But § 2255(h) specifies the two limited conditions in which federal prisoners may bring second or successive collateral attacks on their sentences. The inability of a prisoner with a statutory claim to satisfy § 2255(h) does not mean that the prisoner may bring the claim in a § 2241 petition.

Justices Sotomayor and Kagan filed a dissenting opinion. In a separate dissenting opinion, Justice Jackson wrote,

I am also deeply troubled by the constitutional implications of the nothing-to-see-here approach that the majority takes with respect to the incarceration of potential legal innocents. Apparently, legally innocent or not, Jones must just carry on in prison regardless, since (as the majority reads § 2255) no path exists for him to ask a federal judge to consider his innocence assertion. But forever slamming the courtroom doors to a possibly innocent person who has never had a meaningful opportunity to get a new and retroactively applicable claim for release reviewed on the merits raises serious constitutional concerns.

Jones v. Hendrix, Case No. 21-857 (opinion, June 22, 2023)

– Thomas L. Root

Supremes Put Identity Theft In Its Place – Update for June 9, 2023

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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.

IDENTITY THEFT TAKES A ‘ROAD TRIP’

roadtrip230609The Supreme Court yesterday unanimously but unclearly narrowed the circumstances when aggravated identity theft under 18 USC § 1028A can be included as part of federal criminal charges, with Justice Gorsuch grousing in a concurrence that “criminal statutes are not games to be played in the car on a cross-country road trip. To satisfy the constitutional minimum of due process, they must at least provide ordinary people with fair notice of the conduct they punish…”

Dr. David Dubin was convicted of healthcare fraud under 18 USC § 1347 after he overbilled Medicaid for psychological testing performed by the company he managed. The Doc would overstate the qualifications of the employee who actually performed the testing, sort of like having a patient get a shot from a nurse and then claiming a doctor performed the jab. Dave’s falsehood inflated the amount of reimbursement by a princely $338.00.

Dave was also convicted of aggravated identity theft under § 1028A(a)(1), because when he submitted the false claim to Medicaid, the claim included the name and numeric identifier of the patient. Section 1028A(a)(1) applies when “during and in relation to” certain offenses – including healthcare fraud – a defendant “knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person.”

The Government told SCOTUS that § 1028A(a)(1) was automatically satisfied because Dave’s fraudulent Medicaid billing included the patient’s Medicaid reimbursement number — a “means of identification.”

identitythefy230609Writing for the 9-0 Court, Justice Sotomayor rejected the government’s “sweeping reading, as long as a billing or payment method employs another person’s name or other identifying information, that is enough.” She observed that by that metric, “a lawyer who rounds up her hours from 2.9 to 3 and bills her client electronically has committed aggravated identity theft. The same is true of a waiter who serves flank steak but charges for filet mignon using an electronic payment method.”

The “staggering breadth” of the Government’s reading – under which everyday overbilling cases would account for the majority of violations – “underscores the implausibility of the Government’s interpretation,” the Court ruled. “While the Government represents that prosecutors will act responsibly in charging defendants under its sweeping reading, this Court cannot construe a criminal statute on the assumption that the Government will use it responsibly.”

The Court held instead that under § 1028A(a)(1), a defendant “uses” another person’s means of identification “in relation to” a predicate offense only when the use is “at the crux of what makes the conduct criminal… A far more sensible conclusion from the statutory structure is that § 1028A(a)(1)’s enhancement targets situations where the means of identification itself is at the crux of the underlying criminality, not just an ancillary billing feature.”

The decision did not go far enough to satisfy Justice Gorsuch, who argued in a concurrence that § 1028A was unconstitutional,

not much better than a Rorschach test. Depending on how you squint your eyes, you can stretch (or shrink) its meaning to convict (or exonerate) just about anyone… We have a term for laws like that. We call them vague. And in our constitutional order, a vague law is no law at all.

aggidentityrohr230609The Dubin ruling is important because the ID theft law adds a two-year mandatory prison sentence onto underlying offenses that do not impose a mandatory prison sentence of any kind. Sentencing judges may not consider the severity of the offense, even if the amount of money involved is quite small or there are other mitigating factors.

The impact on people currently serving time for violations of 18 USC § 1028A is unclear but likely to be positive. For those beyond the deadline to file post-conviction motions under 28 USC § 2255, the traditional 28 USC § 2241 petition for habeas corpus will likely be available under the § 2255(e) saving clause. The extent of that remedy will be further defined in Jones v. Hendrix, Case No. 21-857, due to be decided by the Supreme Court in the next three weeks.

Because the Dubin decision is a statutory interpretation and not a constitutional holding (despite Justice Gorsuch’s persuasive argument that it could easily have been), the route of filing a second or successive § 2255 motion (under the rules set up by § 2255(h)) is probably unavailable.

Dubin v. United States, Case No. 22-10, 599 U.S. —, — S.Ct. —, — L.Ed.2d —, 2023 U.S. LEXIS 2420 (June 8, 2023)

New York Times, Supreme Court Narrows the Reach of an Aggravated Identity Theft Law (June 8, 2023)

– Thomas L. Root