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Too Many Questions, Too Few Commissioners – Update for October 16, 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.

DENIAL HIGHLIGHTS JUDICIAL SPLIT ON COMPASSIONATE RELEASE

compassion160208A key provision of the First Step Act allows federal courts to reduce sentences under the so-called compassionate release statutory provisions of 18 USC § 3582(c)(1)(A)(i) – which establishes an ‘extraordinary and compelling” reason standard – without needing a motion from the Bureau of Prisons. Ohio State University law professor Doug Berman said last week in his Sentencing Law and Policy blog that “if applied appropriately and robustly, this provision could and should enable many hundreds (and perhaps many thousands) of federal prisoners to have excessive prison sentences reduced.”

A decision last week in the Southern District of Iowa denying Les Brown compassionate release illustrates the conundrum. Under 28 USC § 994(t), the Sentencing Commission is directed to define “the criteria to be applied and a list of specific extraordinary and compelling examples” for grant of § 3582(c)(1)(A)(i) motions. The Commission defined four examples, one medical, one due to age, one due to family circumstances, and one catch-all (that “there exists in the defendant’s case an extraordinary and compelling reason other than, or in combination with, the reasons described in subdivisions (A) through (C)).”

Now the problem: The USSC has not updated its definition since the First Step Act passed. Instead, its policy statement still simply guides the Bureau of Prisons (which has traditionally been very resistant to an Sentencing Commission guidance). The new procedure mandated by the First Step Act calls for new guidance, but the Commission remains mute.

noquorum191016Sadly, there’s a reason for the USSC’s quiescence. The Commission cannot amend its policy statement because the agency lost its quorum last December, about two weeks before First Step passed, and it is still two commissioners short of a quorum. The Trump Administration apparently sees the Commission as a backwater for which no urgency exists in nominating replacement commissioners. For the foreseeable future, the Commission remains impotent, and the compassionate release policy cannot not be updated.

Some district courts have concluded this means the Commission lacks any applicable policy statement dictating when a judge can grant compassionate release. These courts have decided that this means the district judge can consider anything — or at least anything the BOP could have considered (whether it did or not) — when assessing a defendant’s motion.

But others have held that First Step merely lets them grant a motion for compassionate release if the BOP Director could have done the same under the guidelines and the old Program Statement. These courts hold that judges may not stray beyond the four bases listed in USSG §1B1.13.

Sentencestack170404Last week’s ruling by Senior Judge Robert Pratt is a thoughtful opinion about compassionate release, issued in response to defendant Les Brown’s motion to reduce his 510-month sentence. That sentence was pumped up by a 300-month second 18 USC §924(c) sentence, one that could no longer be imposed since passage of the First Step Act. While Judge Pratt finds that “much about Defendant’s situation is extraordinary and compelling,” he concluded “the Court cannot exercise its discretion to grant release at this time.”

The Judge calculated that even if First Step let him retroactively reduce the second § 924(c) sentence from 300 months to 60 months (which the Act doe not permit), Les would still face a total of 210 months in prison. As of now, he has served only 167 months, “a long stretch by any measure, and perhaps more than appropriate for Defendant’s crimes. Regardless, because Defendant would still be in prison under modern law, any sentencing disparity created by § 924(c) stacking does not, at least yet, provide an ‘extraordinary and compelling reason’ for compassionate release.”

Judge Pratt suggested that Les could come back at 210 months to make his argument. For what it’s worth, I believe that by then, Congress will have revisited the issue and made the § 924(c) sentencing change retroactive, just as it did with the Fair Sentencing Act’s changes to crack minimums.

Prof. Berman complained that “Judge Pratt refuses to use the legal tool available to him to reduce Brown’s sentence, and so Brown is now still slated to serve nearly another 30 years in prison(!) that neither Congress nor any judge views as in any way justified by any sound sentencing purposes.” He is correct. However, until higher courts resolve the conundrum of the missing USSC guidance (or the Commission regains a quorum, and fixes the statement on its own), the present confusion is going to work to the detriment of a lot of inmates.

United States v. Brown, 2019 U.S. Dist. LEXIS 175424 (SD Iowa Oct. 8, 2019)

– Thomas L. Root

4th Circuit Holds Plea Agreement Waiver Does Not Block Johnson/Dimaya/Davis Claims – Update for August 5, 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.

DODGING THE WAIVER

190805myopiaA type of myopia common among federal defendants filing post-conviction § 2255 motions is understandable: people get so focused on their substantive issues – the prosecutor lied, the defense attorney slept, the judge was inept – that no one ever asks whether some arcane issue of procedure will defeat his or her claim before the merits are ever reached.

One of the first procedural issues I usually worry about is the waiver. Face it, 97% of federal inmates plead guilty, and almost all of them sign some kind of plea agreement. And almost all plea agreements include a waiver section, in which a defendant waives the right to appeal or to collaterally attack (as in, file a § 2255 motion) the conviction or sentence. There is always an exception in the case of prosecutorial misconduct or ineffective assistance of counsel, but what happens when something like Johnson v. United States or Sessions v. Dimaya or United States v. Davis comes along?

Randall Cornette, convicted of a felon-in-possession charge, challenged his Armed Career Criminal Act sentence. The trial court had relied on some old Georgia burglaries that Randy said could no longer count under Johnson. The government replied that Randy had signed a plea agreement waiver that prevented him from raising a Johnson issue.Waivers160215

Last week, the 4th Circuit ruled that a plea agreement waiver does not prevent a defendant from taking advantage of Supreme Court decisions like Johnson or Davis. The appeals court ruled that an otherwise valid appeal waiver did not bar Randy from now arguing that by imposing a sentence under the unconstitutional residual clause of the ACCA, the district court exceeded its statutory authority to sentence him.

The Court said that an appeal waiver does not preclude a defendant from challenging a sentence “based on a constitutionally impermissible factor” or “a sentence imposed in excess of the maximum penalty provided by statute.” Randy’s sentence challenge is based on the assertion that the district court did not have the statutory authority to impose the sentence under to the residual clause. Because Johnson was made retroactive by the Supreme Court, the Circuit said, “all sentences rendered under the residual clause became unconstitutional. Therefore, Randy’s sentence was imposed in excess of the maximum penalty provided by ACCA.”

The 4th said that this doesn’t mean that a non-retroactive change in the law, like Booker or Alleyne, can be challenged where there is a collateral-attack waiver. But where a Supreme Court case (like Davis, for instance) “announces a substantive rule that applies retroactively, the district court is now deemed to have had no statutory authority to impose [a] sentence,” and a court may review a sentencing challenge “notwithstanding the appeal waiver.”

United States v. Cornette, 2019 U.S. App. LEXIS 22554 (4th Cir. July 30, 2019)

– Thomas L. Root

DOJ Just Trying to be Fair – Update for July 30, 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.

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.

smails190730Monae 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.

Reuters, As new U.S. law frees inmates, prosecutors seek to lock some back up (July 23)

Washington Post, Justice Department plans to restart capital punishment after long hiatus (July 25)

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).

immigrant190730Last 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.

United States v. Corrales-Vazquez, 2019 U.S. App. LEXIS 22063 (9th Cir. July 24, 2019)

– Thomas L. Root

Supreme Court Davis Decision Declared Retroactive By 11th Circuit – Update for July 29, 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.

11th CIRCUIT HOLDS DAVIS TO BE RETROACTIVE

I have been asked a lot in the last month whether the Supreme Court decision in United States v. Davis would apply retroactively to convictions for using or carrying a gun during a violent or drug crime (violation of 18 U.S.C. § 924(c)) that were already final when the Davis decision was handed down June 24th. While I have always been sure that Davis ought to be retroactive, I was never completely confident that the courts of appeal would agree with me.

retro190729Last Tuesday, the 11th Circuit surprised me in a good way. Faced with a motion for permission to file a second-or-successive § 2255 motion (known as a “2244” because the request is filed under 28 USC § 2244) by a defendant whose § 924(c) conviction was based on a solicitation-to-murder count (and thus was invalid under Davis), the Circuit ruled that Davis is retroactive.

This retroactivity rule is important, because it opens the door for people who have filed 2255 motions already to get permission to file a second one challenging their § 924(c) convictions under the Davis ruling. Davis, you may recall, (1) affirmed that the categorical approach to judging whether a prior conviction was a crime of violence is the appropriate standard, rejecting several circuits’ claims that in a § 924(c) review, the court should look at a defendant’s actual conduct; (2) effectively ruled that conspiracies to commit crimes of violence (as well as solicitations and, quite possibly, attempts and accessories charges) are not crimes of violence; and (3) ruled that the § 924(c) residual clause, like the Armed Career Criminal Act and 18 USC § 16(b) residual clauses, was unconstitutionally vague.

violence160110The 11th Circuit held that Davis met all of the requirements for retroactivity. Davis announced a new substantive rule, because just as Johnson narrowed the scope of the ACCA, Davis narrowed the scope of 924(c) by interpreting the term “crime of violence.” And, the Circuit said, the rule announced in Davis is “new” because it extended Johnson and Dimaya to a new statute and context. “The Supreme Court in Davis restricted for the first time the class of persons § 924(c) could punish,” the appeals court said, “and, thus, the government’s ability to impose punishments on defendants under that statute. Moreover, the Supreme Court’s grant of certiorari in Davis to resolve the circuit split on whether § 924(c)(3)(B) was unconstitutionally vague illustrates that the rule in Davis was not necessarily dictated by precedent or ‘apparent to all reasonable jurists’.”

While the Supreme Court has not held Davis to be retroactive, the 11th said, “the Supreme Court holdings in “multiple cases… necessarily dictates retroactivity of the new rule.” Davis announced a new substantive rule, the 11th held, “and Welch tells us that a new rule such as the one announced in Davis applies retroactively to criminal cases that became final before the new substantive rule was announced.”

Two days later, the 11th Circuit held that another defendant would be allowed to pursue his 924(c) claims under Davis, despite the fact he had tried and failed to do the same under Johnson and Dimaya. The fact that he had previously lost the same issue would not preclude a successive 2255, despite the fact that 11th Circuit precedent in In re Baptiste suggested otherwise. The court said the defendant’s “proposed Davis claim is not barred under In re Baptiste (concluding that a repeat § 2255 claim that was raised and rejected in a prior successive application is barred by [28 USC] 2244(b)(1)).” Although the rationale underlying Johnson and Dimaya on which the defendant’s prior successive applications were based is the same rationale that underlies Davis, his prior losses do not bar him raising the Johnson/Dimaya claim again, because “Davis announced a new substantive rule of constitutional law in its own right, separate and apart from (albeit primarily based on) Johnson and Dimaya.”

knuckles190729Other courts of appeal will have to weigh in on Davis retroactivity for inmates seeking 2244 permission in those circuits, but the 11th position, laid out in a detailed and well-reasoned published opinion, will wield substantial influence on those courts. The 11th, after, is notoriously stingy in granting 2244 motions (it was the circuit that turned down Greg Welch, whose case went on to establish that Johnson was retroactive in Welch v. United States), as well as the appeals court whose Ovalles opinion was directly contrary to what the Supreme Court decided in Davis). That this Circuit has articulated a basis for Davis retroactivity so soon after having its figurative knuckles rapped is a welcome surprise.

In re Hammoud, 2019 U.S. App. LEXIS 21950 (11th Cir. July 23, 2019)

In re Cannon, 2019 U.S. App. LEXIS 22238 (11th Cir. July 25. 2019)

– Thomas L. Root

First Step Tidbits – Update for June 5, 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.

FIRST STEP ROUNDUP

Looking for a Loophole: First Step news from last week: First, a cautionary tale for anyone who thinks there is a magic potion that will make the sentencing changes in the First Step Act retroactive.

loophole190605As with most legislation the First Step Act represents countless compromises. Prominent among those were the deals made on retroactivity. The Act changed 18 USC § 924(c), which punishes people who use a gun in a drug crime or crime of violence with a mandatory consecutive term of five years (if the defendant was just carrying the gun), seven years (if the defendant brandished the gun) or 10 years (if the defendant actually shot it). All of that makes sense. The statute also imposes a mandatory consecutive 25 years on a defendant for a second conviction under 924(c).

The problem was lousy draftsmanship. Congress figured that it you got five years extra for a 924(c) conviction but did not learn your lesson, you ought to get a minimum 25 years on the second conviction. But the provision was written so that any subsequent conviction under 924(c) got you the enhanced time. Say that today you sell some dope on the street corner, with a gun stuffed in your pants. Then, tomorrow you do the same thing. The U.S. Attorney will charge you with two distribution counts and two 924(c) counts, one for each day. Before the First Step Act, you would get a sentence for the drugs, a consecutive five years for today’s 924(c) count, and a consecutive 25 years for tomorrow’s 924(c). That was not the way it was supposed to work, but U.S. Attorneys don’t care what Congress meant. They only care about what Congress wrote.

The First Step Act changed 924(c) to make it clear that the 25 years can be added only if you had already been convicted of the first 924(c) before you committed the second one. Likewise, it changed portions of 21 USC § 841(b)(1) to make the former mandatory life sentence into a 25-year sentence, and the former 20-year sentence into a 15-year sentence. But to sell some of the troglodytes in the Senate (yes, we mean you, Sen. Tom Cotton [R-Alabama]) on supporting First Step, the changes in the mandatory minimums were not made retroactive. Only the 2010 Fair Sentencing Act – which like First Step had the retroactivity taken out in order to rustle up enough support to pass the measure – was made retroactive in First Step.

trog190605Devan Pierson thought he could wriggle through a loophole. He got sentenced to life for a drug distribution case, due to his criminal history and the presence of guns. On appeal, he argued that because the First Step Act had made life sentences into 25-year maximum sentences, his life sentence – which was still on direct review – should be reduced.

Last Friday, the 7th Circuit disagreed. “Subsection 401(c) states that the amendments in that section ‘shall apply to any offense that was committed before the date of enactment of this Act, if a sentence has not been imposed as of such date of enactment.’ In common usage in federal sentencing law, a sentence is “imposed” in the district court… In the First Step Act, Congress chose language that points clearly toward that same result: the date of sentencing in the district court controls application of the new, more lenient terms.”

* * *

Power of the Media: I wrote last week about some district courts holding that reductions in crack sentences under the retroactive Fair Sentencing Act must rely on the “offense controls” theory instead of the “indictment controls” theory. If you are in that kind of fix, it is good to have friends in the media.

In 1994, in the depths of the war on drugs, Sonny Mikell picked up a third federal drug conviction in Florida and was handed a mandatory minimum sentence of life in prison. Although he was only found guilty for 50 grams by a jury, the sentencing judge agreed with the presentence report that held him culpable for 290 grams (for sentencing purposes).

When the First Step Act made the Fair Sentencing Act retroactive, Sonny applied for relief. His sentencing judge granted it promptly, sending Sonny home right from the hearing. But the government appealed to the 11th Circuit, apparently intending to argue that the “offense controls” theory (and the 290 grams) should govern.

Stopthedrugwar.org picked up the story, and ran it week. Citizen Truth republished it. The next day, the government dismissed its appeal without explanation. Citizen Truth may not be Kim Kardashian, but it got the job done.

* * *

You’re My Bestie: Finally, the Daily Beast picked up the story of Rufus Rochell, a man from inauspicious circumstances who befriended Conrad Black when the two were together at FCI Coleman. Black, a wealthy Canadian publisher and friend of Trump, was pardoned by the President a few weeks ago.

bff190605Rufus and Conrad both worked in the education department, Rufus as a law clerk and Conrad as a tutor helping inmates study for their GEDs. “They had conversations about history and education. And they found humor in the subtle absurdities of prison life, such as the thunderous rain that fell whenever inmates were asked to report for lawn duty.”

When Conrad was released on bail after a favorable SCOTUS decision, a rumor spread that he had been arrogant and condescending as an inmate. At Conrad’s request, Rufus wrote a letter refuting the claim, and praising his selflessness.

Now that Conrad has been pardoned, Rufus is hoping for a break through the First Step Act or executive clemency, and is looking to Conrad for support. According to the Daily Beast, nothing has yet been forthcoming.

I have heard a lot of guys being released who promised to send friends money, to keep in touch, even get together after it was all over. It does not often happen. You would hope, however, that when someone is powerful, rich and close to power, especially when he himself has been blessed with good luck, such a promise would not be forgotten.

United States v. Pierson, 2019 U.S. App. LEXIS 16296 (7th Cir. May 31, 2019)

CitizenTruth.org, Why Are Prosecutors Trying to Send a First Step Act Ex-Prisoner Back to Prison? (May 28)

Motion to Dismiss, United States v. Mikell, Case No. 19-11459-G (11th Cir. May 29, 2019)

Daily Beast, Trump Pardoned Billionaire Conrad Black but Left His Prison Buddy Behind

– Thomas L. Root

Judge Weinstein (As Usual) Provides Detailed Opinion on Crack Resentencing – Update for May 1, 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.

WISDOM OF THE ANCIENTS

weinstein160516At age 92, Senior Judge Jack Weinstein is not only still on the Eastern District of New York federal bench, but he remains one of the most industrious and thoughtful federal judges in America, a jurist prone to issuing detailed and resource-rich decision.

In a 15-page opinion hand down last week, Judge Weinstein released Cheyenne Simons under the retroactive Fair Sentencing Act after Chey had served 11 years of his 12-year sentence. This does not sound like such a big deal (a 9% discount on the original immurement), except that as a Guidelines career offender with 50 grams of crack, Cheyenne had faced a 262-month minimum Guidelines advisory sentencing range term in 2008, when Judge Weinstein sentenced him to 144 months instead. What’s more, because of a quirk in how EDNY was applying 18 USC 924(c)’s mandatory consecutive sentence (for using a gun in a drug trafficking crime) back then – a quirk since remedied by the Supreme Court in Abbott v. United States –  Chey did not get a 5-year mandatory consecutive sentence for the gun charge then. Unfortunately, he was obligated to get it now.

Cheyenne had pled to 50 grams of crack, but at the 2008 sentencing, the court attributed over 500 grams of crack to him for Guidelines sentencing purposes. The government argued that under the FSA resentencing, the 500 grams made him subject to the new 280-gram 10-year minimum. Judge Weinstein refused:

Any argument that Simons is ineligible for relief on the basis that his actual conduct involved distribution of 280 grams or more of cocaine base, triggering the 841(b)(1)(A) penalties and a 10-year minimum term of imprisonment, is unsound. Statutory penalties are determined by facts submitted to a grand jury, a trial jury, or established by a guilty plea. Findings by a judge… may be used to determine a sentence within the statutory penalties, but do not establish statutory penalties and cannot change the mandatory minimum sentence now applicable.

release160523Although the 924(c) penalty left Chey’s Guidelines at 262-327 months, Judge Weinstein held that the retroactive FSA gave him the discretionary authority to reduce the sentence. Because Chey had “taken substantial steps during his period of incarceration to achieve the rehabilitative goals sought by the original sentence imposed,” Judge Weinstein set him free.

United States v. Simons, 2019 U.S. Dist. LEXIS 67964 (EDNY, Apr. 22, 2019)

– Thomas L. Root

FSA Resentencings Reflect District Court Confusion – Update for March 11, 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.

FAIR SENTENCING ACT RESENTENCINGS ALL OVER THE MAP

As prisoners who were sentenced for crack offenses before the August 2010 effectiveness of the Fair Sentencing Act (FSA) are discovering, district courts are all over the map in interpreting the First Step Act provisions that make the FSA retroactive.

crackpowder160606Here’s one problem: A number of prisoners seeking retroactive FSA application were sentenced under the mandatory pre-United States v. Booker guidelines. Are their guidelines still mandatory on resentencing?

And another: Virtually all of the eligible defendants have indictments that specified “5 grams or more” or “50 grams or more” of crack – the standard for mandatory minimums before FSA – but had judges finding at sentencing that the amount of crack in their cases was much higher, such as “400 grams or more.” Before the Supreme Court’s 2013 Alleyne v, United States decision, a Presentence Report finding of 400 grams would subject the defendant to a 10-to-life sentence no matter what the indictment said. Alleyne said that the facts supporting a mandatory minimum sentence had to be found by a jury beyond a reasonable doubt or admitted by the defendant. So what amount of crack should drive their new sentence, 50 or 400?

The issue district courts are grappling with is whether an FSA resentencing has to pretend that Booker and Alleyne were never decided, or whether a new FSA sentence has to be constitutional under all of those decisions handed down since the defendant was first sentenced.

Three district court decisions in the last week or so make it clear that those questions are still up in the air. In United States v. Glore, the government argued that because a defendant who was charged with 5 grams or more had been found in his PSR to have had 46 grams, he was not eligible for a sentence reduction under the retroactive FSA, because the 46 grams still required a 5-year minimum sentence under the FSA’s 28-gram threshold. The government said Alleyne should not apply, because it was decided well after the original sentence was imposed.

badjudge160502Citing United States v. Fleurival, the district court rejected the government argument, holding that “the government has the prerogative to argue that even if a defendant is eligible for a First Step reduction, the court should decline to exercise the broad discretion given it by the First Step Act, and refuse to reduce a defendant’s sentence. But its argument that a defendant is not eligible because the sentencing court might have elected to calculate his statutory penalties in a way that now is unlawful, and back then would have been illogical, is unpersuasive.”

Meanwhile, in United States v. Newton, a Virginia district court ruled that although the defendant was originally sentenced under pre-Booker mandatory guidelines, his new sentence under the retroactive FSA should be decided under advisory guidelines and the sentencing factors in 18 USC 3553(a). The government, comparing the FSA resentencing to an 18 USC 3582(c)(2) sentence reduction, argued that Dillon v. United States made it a limited resentencing, and the court had to pretend that the law on the day of the original sentencing remained the law at resentencing.

The district court rejected this argument, noting that the Sentencing Commission said in January that while courts would have to settle whether the FSA resentencing was subject to Dillon, district judges should nevertheless “consider the guidelines and policy statements, along with other 3553(a) factors, during the resentencing.”

In a New York case last week, United States v. Davis, the government argued the defendant was not eligible for relief under the First Step Act because his actual offense conduct involved over 1.5 kilos of crack, which even under the FSA would trigger a 10-life sentence under 21 USC 841(b)(1)(A). The government hypothesized that if the current FSA had been in place when Mr. Davis committed his crime, his indictment would have alleged “280 grams or more of cocaine base” instead of “50 grams or more,” and thus still would have triggered the higher  841(b)(1)(A) penalties.

release160523The court rejected the government’s argument out of hand, holding that “it is the statute of conviction, not actual conduct, that controls eligibility under the First Step Act.” The defendant won his release.

But the foregoing views are not universally shared. Last week, a Florida district court held in United States v. Potts that a defendant who had been charged only with a “detectable amount” of crack, which carried no mandatory minimum, was nevertheless subject to a 10-year minimum sentence because his presentence report found he was responsible for 125 grams. The district court concluded that First Step’s provision making the FSA retroactive does not “expressly provide for a full or plenary resentencing or for a reconsideration of original sentencing determinations.” Instead, “although Defendant is eligible for a reduced sentence under Fair Sentencing Act, he is not entitled to a full resentencing, and all other determinations made at the time of his sentencing must remain unchanged.” The court cited United States v. Delaney and United States v. Kamber, but neither of those decisions hold that an FSA resentencing is limited like a 3582(c)(2) resentencing.

There is going to be a lot of litigation before the parameters of the FSA resentencing are firmly and finally set.

United States v. Davis, 2019 U.S. Dist. LEXIS 36348 (W.D.N.Y. Mar 6, 2019)
 

United States v. Delaney, 2019 U.S. Dist. LEXIS 28792 (W.D.Va. Feb. 22, 2019)

United States v. Fleurival, 2019 U.S. Dist. LEXIS 20057 (W.D.Va. Feb. 6, 2019)

United States v. Glore, 2019 U.S. Dist. LEXIS 35838 (E.D.Wis. Mar. 6, 2019)

United States v. Kamber, 2019 U.S. Dist. LEXIS 15691 (S.D.Ill. Jan. 31, 2019)

United States v. Newton, 2019 U.S. Dist. LEXIS 33356 (W.D.Va. Mar. 1, 2019)

United States v. Potts, 2019 U.S. Dist. LEXIS 35386 (S.D.Fla. Mar. 6, 2019)

– Thomas L. Root

No One Much Cares About the ‘Seven Days’ Debacle – Update for February 25, 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.

BAD NEWS, GOOD NEWS

fishbicycle190225The bad news: We have already reported in detail on the error in the First Step Act that accidentally tied the effective date for the additional seven-days-a-year good-conduct time for federal inmates to the effectiveness of the earned-time credits, a pairing that makes as much sense at relating a fish to a bicycle.

Although there has been a hue and cry from all of the usual advocate-suspects, no one has owned up to the blunder, let alone taken steps to fix it.

I’m not often right, but I predicted a month ago that Congress would be uninterested in doing anything to correct the sloppy drafting. This is because Congress, as an institution, addresses a problem once, happily concludes that the problem is all fixed, and then moves on to the next problem. Criminal justice and prison reform got their moment in the sun with passage of First Step. It will be a long time before Congress comes back to the issue. That is all the more true here, because the drafting gaffe will remedy itself in July, when the seven-day credits take effect.  Some prisoners who should be home now will surely suffer, but that’s hardly an effect that will fire the imagination of Congress, especially the Senate leadership. 

And more: Law professor Nora V. Demleitner, editor of the Federal Sentencing Reporter, complained last week in The Hill that new Attorney General William Barr is no reformer. “Congress should have demanded an attorney general committed to decreasing the federal prison population, improving re-entry, and limiting prison sentences for minor offenders… an attorney general committed to the spirit of the [First Step] Act. Instead it settled for someone who will interpret it as narrowly as possible and implement it grudgingly.”

retro160110The Good News: Speaking last week at a crime symposium, Koch Industries general counsel Mark Holden identified three priorities for the next federal prison reform legislation. Holden, who was point man for Koch Industries’ backing of First Step, said that congress first should apply First Step’s sentencing changes retroactively – the 18 USC 924(c) destacking provision, the reductions in mandatory minimums under the drug trafficking statute, and “safety valve” qualifications.

In addition, Holden called on Congress to codify the Supreme Court’s Brady v. Maryland ruling requiring prosecutors share all of the information that they have about the alleged crime with the accused at the outset the case, and to adopt a clearer and more stringent mens rea rule. Also, he urged the Trump administration to reform the executive clemency process and then to apply it to “create second chances for people who wouldn’t necessarily qualify for relief under the First Step Act.”

Meanwhile, a push is on to again make Pell Grants available for prisoners. Complaints that hard-work Americans were paying for criminals to go to college cauaed Congress to prohibit issuing prisoners Pell Grants, which provide students with financial need aid for college. Without Pells, the number of prison college programs plummeted from 772 to just eight by 1997.

In 2015, the US Dept of Education started a pilot program, allowing some colleges to use Pells to increase access to college courses in prison.

education180509Last week, a conservative magazine called on Congress to expand Pell grants to prisoners nationwide. “Such programming brings gains for both prisoners and public safety,” the American Conservative said, “rebuilds families, is fiscally prudent, and acknowledges the individual dignity of those in prison.”

It may happen. There has been bipartisan support for legislation to reinstate Pells for prisoners. Sen. Lamar Alexander (R-Tennessee), chairman of the Senate Education and Labor Committee, has hinted the change may be part of reauthorizing the Higher Education Act. “Most prisoners, sooner or later, are released from prison, and no one is helped when they do not have the skills to find a job,” Alexander said last year. “Making Pell Grants available to them in the right circumstances is a good idea.”

The Hill, Barr confirmation reveals shallowness of congressional commitment to justice reform (Feb. 19)

The Crime Report, The First Step Act: It’s Only a ‘First Step’ (Feb. 18)

American Conservative, Sending Our Prisoners to College (Feb. 21)

The Intercept, How The Federal Government Undermines Prison Education (Feb. 18)

– Thomas L. Root

Sentencing Commission May Adopt First Offender Proposal on Thursday – Update for April 9, 2018

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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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 SENTENCING COMMISSION SET TO ADOPT AMENDMENTS

Some of our friends who publish their own newsletters have predicted 17 of the last two United States Sentencing Commission actions on the so-called first offender proposal. They should be glad that the long wait is just about over. The USSC will hold its April meeting on Thursday, April 12, at which time it is expected to adopt proposed amendments for November 2018, including quite possibly some form of first offender relief.

abscissa180319The USSC’s sentencing guidelines are based on a cartesian system with the abscissa being the offense level and the ordinate being the defendant’s criminal history. If you rob a bank, that offense is worth a base offense level of so many points. If you threatened an old lady in the process, that is worth a few more points, but if you confess after being caught, that takes a few points off.

Your criminal history is calculated based on the number, severity and age of prior criminal convictions. A prior drunk driving is not as bad as a felony burglary, and while a 12-year old misdemeanor possession of pot charge isn’t worth anything, a 12-year old felony trafficking in pot is. The result is a Total Offense Level and Criminal expressed in Arabic numbers (such as a Level 22) and a Criminal History Category expressed in Roman numerals (such as a “III”). On the sentencing table that is Chapter 5A of the Federal Sentencing Guidelines, a defendant with a Total Offense Level of 22 and a Crim History Level III would have a suggested sentencing range of  51-63 months.

Oscar180410Now for the “First Offender” proposal: It is entirely possible to have prior convictions galore and yet be a Criminal History I (the best score you can achieve). The Guidelines define a Crim I as someone with zero or one criminal history point, which means you could have had a couple of heroin distribution felonies in the 1980s, a string of misdemeanor domestic violences between 1990 and 2006, and one minor misdemeanor 2014, and – because of the age of the offenses – be a Criminal History I. Such a defendant is far different from the 55-year old guy who has never even gotten a traffic ticket, but ends up with a tax fraud conviction. Both defendants get the best treatment from the Sentencing Table that’s possible, but one is a genuine virgin while the other has simply mastered the talent of not getting caught. In recognition, the USSC proposed  that the Phoebe Snows of the criminal world get bonus points for a prior record that’s purer than Crim I.

Two options for a “First Offender” guideline were floated by the USSC. One was that any defendant with zero criminal history points should be considered a First Offender. The second proposal, a stricter one, was more like an Academy Award for lifetime achievement, and would give bonus points to those with no criminal convictions any time in their past, no matter how old.

virgin180409As for nomenclature, the First Offender guideline would adjust a first offender’s Total Offense Level downward. The Sentencing Commission suggested that either all defendants who qualify as “first offenders” would receive a 1-level reduction from their offense level, or perhaps that  defendants who qualify as “first offenders” would receive a 2-level reduction if their Total Offense Level was below 16 and a 1-level reduction if it’s above. 

After the spate of comments for and against the various proposals (and a few against any First Offender guideline at all) presented to the USSC last month, we’ll see in a few days just how eager the Commission is the Trumpian “law-and-order” atmosphere that overhangs Washington to give any defendant, no matter how deserving, a break.

If it is adopted, the First Offender amendment will not be retroactive – that is, not apply to people already sentenced – unless the USSC holds an additional proceeding to declare it so. In other words, current federal inmates are urged not to fall for pitches from anyone (be it an outside service or a guy in the law library who wants some commissary) to prepare a filing to claim your sentence reduction. While it could happen, it will not be happening soon.

knuckles180409And, as we all know, the President has nominated some genuine knuckle-draggers to serve on the Commission. If they are confirmed by the Senate, you can likely kiss any chance for retroactivity goodbye.

U.S. Sentencing Commission, Public Meeting – April 12, 2018

– Thomas L. Root

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Smarter Sentencing Act: Just Like Before, But With More Sponsors – Update for October 17, 2017

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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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SMARTER SENTENCING ACT REDUX

deja171017We were a bit befuddled when Sen. Mike Lee (R-Utah) announced by press release on October 5, 2017, that he and Sen. Richard Durbin (D-Illinois) had “reintroduced the Smarter Sentencing Act of 2017.” It was not clear whether this was a complete retread of the Smarter Sentencing Act of 2015, S. 502, that died without a vote last December, or whether it was new and improved (or just different).

The confusion was compounded because we were unable to locate a draft of the Smarter Sentencing Act of 2017 anywhere over the next 10 days. We called Sen. Lee’s office last week for a copy of the measure, and received our copy yesterday.

Yes, indeedy, the 2017 version of the bill is identical to old S.502, except for a boatload more sponsors (21 from both sides of the aisle). Highlights of the measure include

• expanding the “safety valve” contained in 18 USC 3553(f) – which permits court to relieve low-level drug offenders with relatively clean records to avoid mandatory minimum sentences under some circumstances – to include people with slightly more criminal history.

Currently, a single misdemeanor in one’s background can disqualify the defendant from “safety valve” consideration. Under the proposed change, a couple of felonies will be too much, but more young defendants facing their first serious criminal charge would be sentenced under a scheme that let the judge weigh individual factors rather than applying an inflexible and harsh minimum sentence.

• making the Fair Sentencing Act of 2010, which reduced disparity between crack cocaine and powder cocaine from 100:1 to 18:1, retroactive.

cracksentence171017In the wake of basketball star Len Bias’ death in 1988, Congress passed the draconian Anti Drug Abuse Act, which equated one gram of crack cocaine to 100 grams of cocaine powder. As a result, drug sentences – which are driven by the amount of drug involved in the crime – soared. The defendants in crack cases were overwhelmingly black.

After years of urging by the Sentencing Commission and studies showing that Congress’ rationale for the ADA – that crack was more addictive and crack offenses more violent – was bunkum, Congress passed the Fair Sentencing Act in 2010. Unfortunately, to convince recalcitrant senators to support it, the retroactivity portions of the law were stripped out. Thus, a crack defendant sentenced August 3, 2009, was hammered with the 100:1 ratio, while a defendant sentenced August 3, 2010, was treated more in line with what a cocaine powder defendant would face.

The SSA would make the FSA retroactive, permitting defendants sentenced harshly prior to the adoption of the law eligible for resentencing, at their judges’ discretion, to a more reasonable term.

• cutting mandatory minimums in the drug trafficking laws.

Currently, the Byzantine sentencing regime in 21 USC 841(b) provides differing levels of mandatory minimum sentences for various quantities of different drugs, various number of prior drug felonies, and whether death or serious injury resulted from the drug dealing.

hammer160509Under the SSA, a 10-year mandatory minimum sentence would become 5 years, 20 years would become 10 years, five years would become two years. Right now, a defendant with two prior drug felonies (no matter how old) caught with five kilos of cocaine gets a mandatory life term: no ifs, ands or buts. Sure, the public’s thirst for vengeance is slaked by such toughness. But somehow, when the public sees the same defendant, bent and gray, shuffling across the prison yard a quarter century later, the tough sentence seems pretty wasteful.

The SSA would turn the mandatory life sentence into a mandatory minimum of 25 years.

• cutting mandatory minimums in 21 USC 960 for drug mules carrying drugs into the country courier in half.

mule171017Your poor, dumb peasant from El Cocador humping marijuana across the border or clueless young woman flying in to JFK from East Slobovia with heroin in the liner of her suitcase… These are the couriers, the lowest of the low-level defendant being paid maybe two shekels for hauling someone else’s big score. Under 21 USC 960, the drug importation criminal statute, they get hammered with the same mandatory sentences as Mr. Big, the kingpin staying safely offshore.

The SSA would cut the mandatory minimums applicable to couriers by half.

The bill does not explicitly make any change it proposes retroactive other than the extension of the FSA, but a fair reading of Section 5 of the SSA suggests that the Sentencing Commission should do so according to its retroactivity procedures.

Some of the Smarter Sentencing Act provisions echo those of the Sentence Reform and Corrections Act of 2017, introduced two days earlier. We anticipate that the provisions of the two bills will be blended into a single package by the Senate Judiciary Committee.

S.1933, Smarter Sentencing Act of 2017 (introduced Oct. 5, 2017)

– Thomas L. Root

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