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No Christmas Treats for Prisoners from Sentencing Commission – Update for December 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.

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

November 1st Promises to be a Quiet Day – Update For August 16, 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.

MYTHBUSTERS

I might fairly be accused of trotting out the old “Mythbusters” trope every few months or so when I have nothing else to write about. But it’s not so.

mythbusters240816A loyal reader, himself a skilled jailhouse lawyer, urged me several months ago to revisit some of inmates’ most cherished rumors and myths. He was feeling a little beaten down by well-intended questions about how the Loper Bright Enterprises v. Raimondo decision invalidating the Chevron deference doctrine must mean that people with medium and high recidivism scores will now be able to earn First Step Act credits. (Hint: Loper Bright will affect FSA credits not at all).

Others are demanding to know how President Joe Biden’s signing of H.R. 3019 into law would do the same.

It has been a busy summer, however, and although I am getting the usual number of emails asking why the BOP won’t renew the elderly offender home detention program and when the new meth law takes effect, it took this email yesterday to force my hand:

PATRICIA PRISONER on 8/15/2024 at 10:32:58 AM wrote

i have a question concerning the FSA..IN NOVEMBER WHEN THE LAWS COME INTO EFFECT..WILL THE PPL WITH HIGH OR MEDIUM RECIDIVISM BE ABLE TO USE THEIR TIME CREDITS??DO ANYTHING CHANGE FOR THOSE WHO HAVE PROGRAMED BUT WONT BE ABLE TO CHANGE THEIR STATUS TO A LOW???

Aarrgh! Another FSA credit question.

So here we go, by the numbers:

(1)    What will happen on November 1st?

On November 1st, two things will happen. First, Sentencing Guidelines amendments proposed last spring will go into effect, unless Congress blocks them (which it will not).

nothinghere190906The second is that BOP Director Colette Peters will ride up to the front gate of every BOP institution and give one lucky inmate a ride home on the back of her BOP Central Office unicorn.

Only one of the foregoing is true. And it ain’t the unicorn.

Unfortunately, the traditional November 1st date for the effectiveness of sentencing guidelines amendments has attained an almost mythical status on the inmate grapevine commonly known as “inmate.com.” But let’s remember this (covered in high school government class, probably on a day you skipped): The sentencing guidelines, like all government regulations, are NOT laws. Guidelines are written by the Sentencing Commission pursuant to authority granted by Congress. They are advisory only. A judge does not have to follow them. And this year, not a single Guidelines amendment will retroactively apply to people already sentenced. So, the amendments going into effect on November 1 have absolutely no effect on federal prisoners.

Congress has not passed any changes to the federal criminal laws this year. With only about 35 more days of legislative sessions this year for the House and 39 for the Senate (and with elections for all representatives and one-third of the senators), there is no chance that Congress will do anything to benefit federal prisoners.

The misperception that crime is rising is one of the bogeymen of this election cycle. No legislator’s going to vote for something that may benefit maybe 50,000 federal prisoners but gives his or her opponent an opening to argue that the incumbent voted to let dangerous criminals go free. As the politicians say, it’s bad optics.

(2) The BOP is not arbitrarily denying FSA credits to high and medium recidivism inmates.

Under 18 USC 3624(g)(1), in order to use FSA credits, a prisoner must have a “minimum” or “low” recidivism risk or “ha[ve] shown through the periodic risk reassessments a demonstrated recidivism risk reduction.” It is possible for a medium or high recidivism inmate to earn the right to spend FSA credits, but the statute (18 USC 3624(g)(1)(D)(ii)) is very specific about how difficult earning such a right would be.

recidivism240408The important point is that any changes to the FSA credit program – that lets prisoners earn credits to shorten sentences and permit more halfway house/home confinement – that would permit people with high and medium recidivism scores to use their credits, both the House and the Senate would have to pass an amended First Step Act law and the President would have to sign it. It simply is not going to happen this year.

And while we’re on it, why won’t the BOP let people with 18 USC § 924(c) gun charges have FSA credits? Simply enough, it’s because Congress deliberately excluded § 924(c) convictions from eligibility. The BOP’s got no power to change that.

(3) H.R. 3019 was indeed signed by the President, but it is the Federal Prison Oversight Act and has nothing to do with FSA credits.

In the 5½ years since the First Step Act was passed, no one has mounted any serious effort to change the FSA credits. Congress seems content that 63 different categories of offenses (comprising about half of all federal inmates) remain ineligible for FSA credits.

The FPOA is legislation that holds great promise for increasing BOP accountability, but it has nothing to do with the First Step Act in general or FSA credits in particular.

(4) Elderly Offender Home Detention Program has come and gone.

I still get complaints that the BOP is denying people who are 60 years old home confinement at their two-thirds date.

Of course it is. The two-thirds home confinement for 60+ people was the Elderly Offender Home Detention Program, authorized by the First Step Act. It was a pilot program, and was authorized to run until September 30, 2023. When it expired, I wrote about it.

The important point is that Congress set the expiration date. The BOP has no right to waive the expiration date or to extend it. It’s up to Congress, and Congress hasn’t done a thing about it.

(5) When does the new meth law go into effect?

meth240618What new meth law? About 18 months ago, a single district court in Mississippi ruled that the Guidelines enhancement for methamphetamine purity should not be applied because these days, just about all meth is high purity. The judge in question, however, was Carleton Reeves, who happens to be chairman of the Sentencing Commission, making the holding kind of a big deal.

The Guidelines enhancement is based on 21 USC § 841(b)(1)(A)(viii), which sets differing levels for pure meth and a “mixture… containing a detectable amount” of meth. Last June, the Commission released a study showing that meth purity is no longer a reasonable metric for enhancement. The Commission may yet take up the enhancement, although it has not yet committed to do so. However, no real change can be effected until Congress changes the law. Congress has given no indication it is interested in doing so.

(6)    A Basic Government lesson

We should all understand that a “congress” runs for two years. We are in the 118th Congress right now. It ends on January 2, 2025, The 119th Congress begins on January 3, 2025, and ends on January 3, 2027.

When a Congress ends, any bill that is pending but not passed disappears. The 119th Congress starts with a clean slate. This means that any bill currently pending (like marijuana reform, the EQUAL Act, First Step Act changes) will die.

Whether any criminal justice reform legislation makes it through the 119th Congress has a lot to do with who controls the House and Senate and who will be sitting in the White House. If one party ends up controlling all of it (especially the Democrats), some of what has been stalled – such as the Cannabis Administration and Opportunity Act and EQUAL Act — may have a real shot.

– Thomas L. Root

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

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

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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.

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

Feb 1’s Here… Let the Prisoners Go! – Update for February 1, 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.

RUMOR CONTROL 101: WHAT HAPPENS ON FEBRUARY 1? (HINT: NOTHING)

nothinghere190906My inbox has been flooded in the last few weeks with people wondering what all will happen today, Thursday, February 1st. One said changes in the gun laws will go into effect. Another heard that the meth laws will change. Another explained that all criminal history points from prior state convictions will be dropped from Guidelines criminal history. A fourth heard that acquitted conduct will be banned for sentencing purposes.

Yesterday, a prisoner complained that people were saying that effective today, FSA credits could be used by everyone, not just low- and minimum- recidivism level inmates. At least this last guy recognized that the rumor was bullshit on stilts, and responded with appropriate disgust.

The plain and sad fact is that NONE OF THESE RUMORS IS TRUE. NONE. ZERO. NADA. ZIP.

Congress is not changing the federal firearms statutes this year. With methamphetamine and fentanyl flowing across the border being a hot campaign issue, no one’s changing those laws, either. Congress can’t even approve a federal budget or aid to Ukraine and Israel, or a plan to stop the border crisis. Passing legislation that benefits a portion of the 160,000 federal prisoners is not on anyone’s radar.

True, the Sentencing Commission is considering what – if anything – to do with acquitted conduct, but any change in the Guidelines is not likely to be retroactive and is 10 months away at least. And the Supremes may cause real upheaval in the federal gun laws when Rahimi is decided in the next five months.

But nothing will happen today.

timereductionfairy231003

However, tomorrow… On February 2, the Time Reduction Fairy will emerge from her den. If she sees her shadow, we’re in for another year of no criminal justice reform. The smart money, unfortunately, is that February 2 is going to be sunny.

– Thomas L. Root

More Rumors – How Many Can You Identify as True? – Update for October 24, 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.

RUMORS II – TAKE OUR INMATE.COM RUMOR QUIZ

In prison, “inmate.com” is an information site of almost mythical status. It’s omniscient, omnipresent, omnivorous, and almost always, always wrong.

Unsurprisingly, there really is an inmate.com, although it bears no resemblance to the ethereal website of legend.

legend231023On November 1, the Guidelines amendments proposed last April will become effective. Under 28 USC § 994(p), amendments proposed by May 1 must become effective by November 1 unless Congress votes otherwise. Congress has not done so, and with the House in turmoil and no apparent Senate interest in stopping the amendments, the amendments will be effective in eight days.

Somehow, in the 35 years we’ve had the Sentencing Guidelines, the date of “November 1” has taken on a mystical, legendary quality. This year’s no different, as my email inbox continues to be stuffed with questions about what may happen ten days from now.

trueorfalse231024Take our true-or-false test to see how current you are on the latest November 1st rumors now being featured on  Inmate.com (the mythical one, not the penpal site):


(1) True or false: On November 1, the meth guidelines will be lowered by doing away with the “ice” enhancement.

FALSE. A district judge in SD Mississippi refused a few months ago to enhance for meth purity. It happens that this Judge is also Chairman of the Sentencing Commission, but nothing has been proposed on meth, let alone passed.

(2) True or false: On November 1, a new law will go into effect making 18 USC 924(c) prisoners eligible for FSA credits.

FALSE. The only way for 924(c) people to get FSA credits would be for Congress to amend the First Step Act. There is no proposal in front of either the House or the Senate to do that.

(3) True or false: On November 1, Congress is going to do away with the crime of conspiracy.

FALSE. Such a proposal, if anyone were daft enough to propose it, would never even make it to a committee hearing.

(4) True or false: On November 1, Biden is going to give all federal prisoners a year off of their sentences because of how miserable it was to be locked up for COVID.

FALSE. No one has even suggested such a thing, let alone seriously proposed it.

(5) True or false: On November 1, the new 65% law is going into effect.

FALSE. There ain’t no 65% law, never has been a 65% law, and probably never will be a 65% law.

(6) True or False:  On November 1, the Time Reduction Fairy will appear to magically commute your sentence to ‘time served.’

FALSE, but no more false than all the other November 1 rumors.

timereductionfairy231003Do you detect a trend here? This year, more happens on the 1st of November than All Saint’s Day… but not much. A couple of Guideline amendments go into effect and become retroactive. That’s good. Another one – compassionate release – will help a lot of people. But nothing will come out of Congress, nothing from the White House, very little from the BOP, and just the predictable annual amendment list from the Sentencing Commission.

And thus it will ever be.

– Thomas L. Root