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Supreme Court Decides What Congress Really Meant on Safety Valve – Update for March 19, 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.

A CONSPIRACY OF DUNCES…
This website was down all day yesterday due to a dark conspiracy of the people at Bluehost, LISA’s web provider, who decided to all become incompetent at once. Not really. Incompetence has been Bluehost’s theme for years…

TEXTUALISM TAKES IT ON THE CHIN

The Supreme Court on Friday narrowly interpreted 18 USC § 3553(f), the “safety valve” provision that was rewritten as part of the First Step Act, to “den[y] thousands of inmates a chance of seeking a shorter sentence,” according to NBC News.

caterpillar240319Many Supreme Court observers believed the Court would approach Friday’s case – Pulsifer v. United States – textually. “Textualism” is the interpretation of the law based exclusively on the ordinary meaning of the legal text. You know, like “and” means “and” and not “or.”  But the Court surprised the parties and observers in more ways than one.

Justice Elana Kagan’s opinion at first blush seems to be something only your high school English teacher could love. The case concerned the “safety valve” provision, which exempts some drug defendants from mandatory minimum sentences if they meet a list of conditions. One of those (3553(f)(1)) says the defendant can’t have “more than 4 criminal history points… a prior 3-point offense… AND a prior 2-point violent offense…” (I emphasized “AND” for reasons that will become apparent).

Mark Pulsifer had a prior 3-point felony, so his sentencing judge said he was ineligible for the safety valve. Mark, however, argued that the way (f)(1) is written, a defendant is ineligible only if he fails all three conditions. That is, Mark said, he was qualified for the safety valve unless he had all three of “more than 4 criminal history points AND a prior 3-point offense AND a prior 2-point violent offense.

grammar240319The Court’s lengthy ruling was little more than an English grammar lesson. In a decision surprising for scrambling ideological alliances on the Court, liberal Justice Kagan wrote for a 6-3 majority made up of traditionally conservative justices, while conservative Neil Gorsuch was joined by two traditionally liberal justices, Sonia Sotomayor and Ketanji Brown Jackson. The holding essentially holds that in the case of the safety valve, “and” means “or.”

SCOTUSBlog.com reported that

Kagan’s acceptance of the government’s argument relies squarely on a problem of superfluity.” The opinion focused on the fact that under Pulsifer’s reading of the provision, to be ineligible a defendant would have to have a prior 3-point conviction and a prior 2-point conviction. If that were so, the first requirement – that he or she have more than 4 points – was meaningless because to meet conditions two AND three, the defendant would already have to have 5 points. “In addressing eligibility for sentencing relief, Congress specified three particular features of a defendant’s criminal history — A, B, and C,” Kagan wrote. “It would not have done so if A had no possible effect. It would then have enacted: B and C. But while that is the paragraph Pulsifer’s reading produces, it is not the paragraph Congress wrote… [I]f a defendant has a three-point offense under Subparagraph B and a two-point offense under Subparagraph C he will always have more than four criminal-history points under Subparagraph A.

In other words, if reading the plain text of a statute yields a result that seems at odds with what Congress must have intended, the Supreme Court’s interpretation of what Congress must have intended prevails.

To prove her grammatical point, Kagan cites both The Very Hungry Caterpillar and Article III of the Constitution. She notes that Article III extends the “judicial Power… to all Cases… arising under this Constitution, the Laws of the United States, and Treaties.” This, she says, plainly applies to cases arising under any one of the three listed bodies of law but does not require that the cases arise under ALL three.

and-or240319In his dissent, Gorsuch complained that the decision significantly limits the goals of the First Step Act. “Adopting the government’s preferred interpretation guarantees that thousands more people in the federal criminal justice system will be denied a chance—just a chance—at an individualized sentence. For them, the First Step Act offers no hope. Nor, it seems, is there any rule of statutory interpretation the government won’t set aside to reach that result,” Gorsuch wrote. “Ordinary meaning is its first victim. Contextual clues follow. Our traditional practice of construing penal laws strictly falls by the wayside too. Replacing all that are policy concerns we have no business considering.”

Besides dramatically limiting those eligible for a safety valve non-mandatory drug sentence, Friday’s decision dashes the hope of some seeking a zero-point retroactive Guidelines 4C.1 2-level reduction. One of the conditions to qualify for that reduction is that a “defendant did not receive an adjustment under 3B1.1 (Aggravating Role) and was not engaged in a continuing criminal enterprise, as defined in 21 USC 848.” Some read this as being that a defendant has to have both a 3B1.1 aggravating role AND a 21 USC 848 conviction. Other courts have read this as disqualifying all defendants having either a 3B1.1 enhancement OR an 848 conviction.

The decision stamps “denied” on the 5 pct of defendants annually getting a USSC § 3B1.1 leader/organizer/manager/supervisor enhancement.

Writing in his Sentencing Policy and Law blog, Ohio State University law professor Doug Berman observed that the Pulsifer “serves as still more evidence that SCOTUS is no longer one of the most pro-defendant sentencing appeals courts. I got in the habit of making this point for a number of years following the Apprendi/Blakely/Booker line of rulings during a time when most federal circuit courts were often consistently more pro-government on sentencing issues than SCOTUS… But we are clearly in a different time with different Justices having different perspectives on these kinds of sentencing matters.”

Pulsifer v US, Case No 22-340, 2024 U.S. LEXIS 1215 (March 15, 2024)

Reuters, US Supreme Court says thousands of drug offenders can’t seek shorter sentences (March 15, 2024)

Sentencing Law and Policy, In notable 6-3 split, SCOTUS rules in Pulsifer that “and” means “or” for application of First Step safety valve (March 15, 2024)

SCOTUSBlog.com, Supreme Court limits “safety valve” in federal sentencing law (March 15, 2024)

NBC, Supreme Court denies ‘thousands’ of inmates a chance at shorter sentences (March 15, 2024)

– Thomas L. Root

SCOTUS Tackles the ‘And/Or’ Debate in Pulsifer Case – Update for October 6, 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.

SUPREMES HEAR ORAL ARGUMENT ON DRUG SENTENCING “SAFETY VALVE”

The Supreme Court opened its nine-month term last Monday hearing oral argument on the meaning of a First Step Act amendment to 18 USC § 3553(f), a subsection known as the “safety valve.”

Under the “safety valve” provision, judges could disregard mandatory minimum sentences for people convicted of certain nonviolent drug offenses who had limited criminal history and met a few other conditions.

andor210524At issue is how to interpret a part of the law that determines who is eligible for this provision, which could potentially lead to a shorter sentence. Three requirements under the provision involve prior criminal history, and the court is being asked to decide whether people no longer qualify if they meet one of these criteria — or if they must meet all three.

Mark Pulsifer pled guilty to one count of distributing 50 grams of methamphetamine and then sought application of the “safety valve.” To be eligible, a defendant cannot have “(A) more than 4 criminal history points… (B) a prior 3-point offense, as determined under the sentencing guidelines; and (C) a prior 2-point violent offense, as determined under the sentencing guidelines.”

At issue is whether “and” means “and.”

The government argues that “and” means “or,” so defendants are ineligible if they fail any of the three subparts. “It joins together three independently disqualifying conditions by distributing the phrase ‘does not have.’ That’s the only interpretation that avoids rendering the first subparagraph entirely redundant,” the Solicitor General’s attorney told the justices.

Pulsifer’s lawyer disagreed. “Letting the government get to ‘or’ when Congress said ‘and’ would encourage Congress to be sloppy with the most basic English words, leaving square corners far behind, and in the criminal context, where fairness matters most. The Court should hold Congress to what it wrote.”

words221110At oral argument, the justices spent most of their time parsing the grammar and conjunctions, trying to determine whether § 3553(f) uses the word “and” to join three eligibility criteria together or distributively across three independently disqualifying criteria. The government’s lawyer often appealed to a canon of construction rooted in “common sense,” a suggestion not that well received. “I don’t know that canon, but I guess it’s a good one,” Justice Neil Gorsuch quipped.

Pulsifer’s lawyer rejected it as well: “The government focuses a lot on common sense, but it’s common sense that if Congress wanted to say “or,” it would have said “or,” he contended. “It knew how to do that in other parts of this very sentence, of § 3553(f). The — Congress’s own drafting manual says to do so, and that would be the ordinary meaning — that would be the ordinary term to use in order to express the meaning that the government attributes to this statute.”

The court’s ruling may affect thousands of defendants with pending cases and those in federal prison. And how to read an ambiguous “and” may become important to a lot of zero-point people pretty soon, too.

zeropoints230420The Sentencing Commission’s retroactive zero-point amendment (USSG 4C1.1) goes into effect in a month. Section 4C1.1(a)(1) directs that an eligible defendant is one who “did not receive an adjustment under 3B1.1 (Aggravating Role) and was not engaged in a continuing criminal enterprise, as defined in 21 USC § 848.” Does this mean that no one with a 3B1.1 enhancement or who was convicted of a 21 USC § 848 continuing criminal enterprise is eligible? Or does it mean that you must have both a 21 USC § 848 conviction and a § 3B1.1 enhancement to be disqualified?

Ohio State University law professor Doug Berman wrote in his Sentencing Law and Policy blog that he suspected Pulsifer

will end up with a 5-4 vote in favor of the government’s proposed statutory interpretation that would restrict the reach of the First Step Act’s expansion of the statutory safety valve exception to drug mandatory minimum sentencing terms. But I would not entirely discount the possibility that the four Justices who seemed most favorable toward the defendant’s reading, particularly Justices Gorsuch and Jackson, might find a way to peel off a key fifth vote (especially since the Chief was pretty quiet throughout and Justice Kagan hinted toward the end that she might be less sure than she seemed at the outset).

Berman anticipates a decision in winter 2024, although he offers the chance that “this one might take quite a while if lots of Justices decide to write on lots of broader statutory interpretation topics (like the reach of the rule of lenity and/or the use of legislative history and/or corpus linguistics).”

New York Times, On First Day of New Term, Supreme Court Hears Debate Over First Step Act (October 2, 2023)

The Hill, Supreme Court opens term with case on prison terms for drug offenders (October 2, 2023)

Slate: The Supreme Court’s Oddest Pairing Comes Out Swinging on Behalf of Criminal Defendants (October 2, 2023)

Transcript of Oral Argument, Pulsifer v. United States, Case No. 22-340 (October 2, 2023)

Sentencing Law and Policy, Rounding up some accounts of lengthy SCOTUS oral argument in Pulsifer safety valve case (October 3, 2023)

– Thomas L. Root

SCOTUS Hears Argument Over Meaning of “And” in First Step Act – Update for October 2, 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.

SUPREMES OPEN NEW COURT YEAR TODAY WITH ENGLISH LESSON

The Supreme Court opens its new 9-month term today with arguments in a case that considers what the meaning of the word “and” is in a provision of the First Step Act, an esoteric English lesson with real-world impact for thousands of federal prisoners.

meaningofisis231003Not since Bill Clinton told questioners that “it depends on what the meaning of ‘is’ is” has a simple word prompted such a dispute. What the justices decide could affect thousands of federal drug sentences each year. What’s more, it could affect thousands more seeking a retroactive zero-point reduction under the Guidelines.

First Step amended the 18 USC § 3553(f) “safety valve” that allows certain nonviolent drug offenders who plead guilty to avoid mandatory minimum sentences based in large part on their lack of significant criminal history. The statute says may qualify if he or she doesn’t have more than 4 criminal history points, a prior 3-point offense and a prior two-point violent offense.

The issue is whether having (1) more than four criminal history points, OR (2) a prior three-point offense OR (3) a prior two-point violent offense, will disqualify you, or whether you have to have (1) more than four criminal history points, AND (2) a prior three-point offense AND (3) a prior two-point violent offense – that is, all three to be disqualified. The courts of appeal are split, and thus, the Supreme Court has stepped in to settle the dispute.

confused230113The case, Pulsifer v. United States, is more than an exercise in sentence diagramming, a dubious talent I mastered and then forgot more than a half-century ago. Nearly 6,000 people convicted of drug trafficking in 2021 alone might be eligible for reduced sentences, according to the Sentencing Commission, if the Supremes agree that a defendant has to have all three to be disqualified. Ohio State University law professor Doug Berman told AP that more than 10,000 people sentenced since First Step took effect could be affected. He said Congress wrote the § 3553(f)(1) subsection in the negative so that a judge can exercise discretion in sentencing if a defendant “does not have” three sorts of criminal history.

In today’s Supreme Court case, Petitioner Mark Pulsifer argues that he has to have four criminal history points which include both a prior 3-point offense and a 2-point violent offense in order to lose the benefit of the safety valve. The government says just one of the three conditions – 4 points or a 3-point prior or a 2-point violent crime – is enough.

Berman told AP the language of the statute favors a broad reading favoring defendants. “But the concern about the broad reading is that it basically covers everybody. I think it’s right that that wasn’t Congress’ intent,” Berman said, echoing arguments made by judges who sided with prosecutors.

AP observes that Congressional intent may not matter: “On a court in which several justices across the ideological spectrum say they are guided by the words Congress chooses, with less regard for congressional intent, that might be enough to favor defendants.”

ambiguity221128How to read an ambiguous “and” may be important to a lot of zero-point people pretty soon. The Sentencing Commission’s retroactive zero-point amendment (USSG 4C1.1) goes into effect in a month. Sec 4C1.1(a)(1) directs that an eligible defendant is one who “did not receive an adjustment under § 3B1.1 (Aggravating Role) and was not engaged in a continuing criminal enterprise, as defined in 21 USC § 848.” Does this mean that no one with a § 3B1.1 enhancement or who was convicted of an 848 continuing criminal enterprise is eligible? Or does it mean that you must have both an 848 conviction and a 3B1.1 enhancement to be disqualified?

That all depends on the meaning of “and.”

Pulsifer v United States, Case No. 21-1609 (Supreme Court, Oral Argument October 2, 2023)

Forbes, Why Thousands Of Prisoners Could Be Spared Because Of A Supreme Court Case Over The Word ‘And’ (September 25, 2023)

AP News, The Supreme Court will hear a case with a lot of ‘buts’ & ‘ifs’ over the meaning of ‘and’ (September 24, 2023)

– Thomas L. Root

Three First Step Reform Retread Bills Introduced – Update for April 24, 2023

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DÉJÀ VU ALL OVER AGAIN

deja171017Senate Majority Whip Richard Durbin (D-IL), chairman of the Judiciary Committee, and Sen. Charles Grassley (R-IA) last Wednesday reintroduced three of the biggest criminal justice of the last Congress, reform bills that made it out of Senate committee but never got voted on in 2021-2022.

Yogi Berra might say, “It’s déjà vu all over again.”

Durbin and Grassley sponsored First Step five years ago. Now, they have reintroduced the First Step Implementation Act (FSIA) (S. 1251) and Safer Detention Act (S.1248) – both of which were approved by the Committee in 2021 but did not pass the Senate the last Congress – as well as rolled out the Terry Technical Correction Act (S. 1247).

The FSIA would allow courts to apply First Step sentencing reform provisions to reduce sentences imposed prior to First Step’s December 2018 enactment and broaden the drug safety valve (18 USC § 3553(f)) to allow courts to sentence below a mandatory minimum for nonviolent controlled substance offenses, if the court finds the defendant’s criminal history over-represents the seriousness of the defendant’s criminal record and the likelihood of recidivism.

The Safer Detention Act of 2023 would reform the Elderly Home Detention Pilot Program (34 USC § 60541(g)(5)) by clarifying that the time served required for the Program should be calculated based on an inmate’s net sentence – including reductions for good conduct time credits; lowering eligibility to include nonviolent offenders who have served at least 50% (instead of 66.7%) of their terms; and making D.C. Code offenders in BOP custody eligible for the Elderly Home Detention Pilot Program. The bill would also make federal prisoners sentenced before November 1, 1987 eligible for compassionate release.

jordan230425The Terry Technical Corrections Act (S. 1247) broadens the scope of crack cocaine offenders who are eligible for a retroactive sentencing reduction under the First Step Act of 2018. The First Step Act authorized sentencing reductions for crack cocaine offenders convicted and sentenced before the Fair Sentencing Act became effective, as long as their conduct triggered a mandatory minimum sentence. This bill extends eligibility for the retroactive sentencing reduction to all crack cocaine offenders sentenced before the Fair Sentencing Act became effective, including low-level offenders whose conduct did not trigger a mandatory minimum sentence.

Remember that this same trio of modest proposals did not pass even when the Democrats ran the House, the Senate and the White House. Now, the Republicans run the House, with Rep. Jim Jordan (R-OH) chairing a House Judiciary Committee more interested in attacking Democrats for being soft on crime and hard on former President Trump than it is in addressing criminal justice reform.

Writing in his Sentencing Law and Policy blog last Thursday, Ohio State University law prof Doug Berman said, “For a wide variety of reasons, I am not at all hopeful that any form of federal sentencing reform will be enacted in the current Congress. But I was still pleased to learn… that a pair of notable Senators are still seeking to advance some notable (previously stalled) sentencing bills.”

underthesun230424

Kohelet was an old and wise guy when he reputedly wrote the Book of Ecclesiastes. If he were still writing, it would be about these three bills.  Nothing new under the sun, indeed, as will probably be the fate of these three – demise in December 2024, just as the last three died at the end of 2022. At that time, we will be writing of the FSIA, Safer Detention Act and Terry Technical Correction Act, “Vanity of vanities! All is futile! What profit hath a man for all his toil, in which he toils under the sun?”

Reintroduction of the three measures last week came as The Crime Report complained that “after four years, the impact of the First Step Act has been mixed… In March 2022 that there were 208,000 inmates in federal prisons and jails. But only 5,000 inmates… have been released through one or more provisions of the FSA.”

The Crime Report concluded

The sheer number of reforms in the FSA that are the antithesis to the Nixon-era ‘lock-‘em-up-and-throw-away-the-key’ penal philosophy of both the Bureau of Prisons and the US Sentencing Commission make it exceedingly difficult to have the promise of the FSA fulfilled. The very magnitude of the law and its stated objectives, which include reducing recidivism and improving conditions in federal prisons, has resulted in less than what was initially promised by the supporters of FSA.

First Step Implementation Act (S.1251)

Safer Detention Act of 2023 (S.1248)

Terry Technical Corrections Act (S.1247)

Sentencing Law and Policy, Senators Durbin and Grassley introduce again set of First Step follow-up bills (April 20, 2023)

The Crime Report, The Promises Of Federal Criminal Justice Reform: Shortcomings of the First Step Act (April 17, 2023)

– Thomas L. Root

Supremes Mull Identity Theft – Update for February 27, 2023

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GOOD INTENTIONS RUN AMOK?

almaty230227There was a time when the still-nascent Internet was spawning a land-office business in identity theft. Aided by “cyberspace,” hackers, code crackers and slackers had stopped wasting time with all  the chatroom yakkers, and instead were using your personally identifiable information (PII) to get new credit cards in your name. Next thing you know, you had bought a 400,000-tenge set of new tires in Almaty, Kazakhstan, the same day you had a 200,000-peso steak dinner in Ushuaia, Argentina.

This use of an innocent person’s PII to get a bogus line of credit and sticking them with the consequences became known as “identity theft.” And it was perceived as a real problem.  Congress responded with 18 USC § 1028A, the “aggravated identify theft” statute.

Just as the government is loathe to ever let a serious crisis go to waste, the Dept of Justice has  broadly applied the federal identity theft statute to hammer situations that are nowhere close to the hold that all sorts of misconduct that happens to use someone’s name or personal information in the offense is aggravated identity theft.

ushuia230227The statute imposes a two-year mandatory minimum sentence on any person who, “during and in relation to” certain enumerated felonies, “knowingly transfers, possesses, or uses without lawful authority, a means of identification of another person.” And the government loves offenses with mandatory minimums.

Today, the brakes may be applied to § 1028A (lucky we have those new tires). SCOTUS will consider the reach of the statute in Dubin v. United States.

Dr. Dubin, the managing partner of a psychological services company that provided mental health testing to youths at emergency shelters, was convicted of Medicaid fraud for a claim he submitted for a patient’s treatment. The patient had in fact been treated by the practice and no one doubts the Doc had the right to submit the claim. But the government argues that Dr Dubin overbilled for the treatment provided, and that ran afoul of § 1028A.

Dr. Dubin did not commit identity theft in any normal sense. No Argentina steaks, no Kazakh tires. But the statute’s language, the government argues, means that the Doc’s conduct “squarely fits” within the statutory text: As SCOTUSBlog put it, the government contends that “he ‘used’ the patient’s name ‘in relation to’ health care fraud, and he ‘plainly acted’ without ‘lawful authority’ when he committed the fraud.”

words221110Dubin’s lawyers argue that the statutory phrase ‘in relation to’ must be read in tandem with the verb ‘uses.’ Dubin contends that the statute “requires a meaningful nexus between the employment of another’s name and the predicate offense.” Using another’s identity “without lawful authority” requires a showing that the defendant used another’s person’s name “without permission that was lawfully acquired.”

The 5th Circuit ruled for the government, and on rehearing the case en banc, upheld the conviction by a razor-thin 9-8 margin.

Writing in Reason, Berkeley law professor Orin Kerr said that “the stakes are high. A lot of crimes are technically felonies under Title 18 but are pretty low-level felonies, the kind of thing likely to lead to probation or at most a short prison term. But if § 1028A applies, it tacks on a two-year prison sentence. So you could have a probation offense that becomes a two-years-in-jail offense if § 1028A is triggered, with the § 1028A punishment dwarfing the predicate felony punishment.”

SCOTUS Relists Grants Safety-Valve Cert Petition: [Update]:  The Supreme Court granted certiorari to Pulsifer v. United States on February 27.  The case will be argued next fall].

The drug safety-valve statute, 18 USC 3553(f), provides that a sentencing court may ignore drug mandatory minimums if (among other requirements) it finds that the defendant does not have (A) more than 4 criminal history points, excluding any criminal history points resulting from a 1-point offense, as determined under the sentencing guidelines; (B) a prior 3-point offense, as determined under the sentencing guidelines; and (C) a prior 2-point violent offense, as determined under the sentencing guidelines.

safetyvalv200618Pulsifer v. United States and Palomares v. United States ask whether a defendant is ineligible for safety valve relief from the mandatory minimum if his or her criminal history runs afoul of any one of the disqualifying criteria or only if his or her criminal history runs afoul of all three disqualifying criteria, subsections (A), (B), and (C). Circuits are divided on the issue 3-4. John Elwood of SCOTUSBlog predicts that of the two cases, “probably at least one will get the grant.”

Last week, the 4th Circuit joined the debate, holding in United States v. Jones that a defendant has to lose on all three criteria before he or she can be denied the safety valve. The Circuit said, “Ultimately, whether or not this is a prudent policy choice is not for the judiciary to decide: that determination lies solely with the legislative branch. And “the Government’s request that we rewrite 3553(f)(1)’s ‘and’ into an ‘or’ based on the absurdity canon is simply a request for a swap of policy preferences… We cannot “rewrite Congress’s clear and unambiguous text” simply because the Government believes it is better policy for the safety valve to apply to fewer defendants.

Dubin v. United States, Case No 22-10 (oral argument Feb 27, 2023)

SCOTUSBlog.com, Literalism vs. lenity in a case on the scope of federal identity theft (February 24, 2023)

Reason, Thoughts on Dubin v. United States and the Aggravated Identity Theft Statute (February 19, 2023)

United States v. Jones, Case No 21-4605, 2023 U.S. App. LEXIS 3963 (4th Cir., February 21, 2023)

– Thomas L. Root

Judicial Odds and Ends – Update for June 3, 2021

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AN ANNIVERSARY OF A MYSTERIOUS DEATH… AND A COUPLE OF CASE SHORTS

odetobilliejoe210603We have a couple of notable decisions from last week for this, the traditional day we all commemorate the untimely death by suicide of Billie Joe McAllister, the 1967 first-person ballad sung by Bobbie Gentry. As Bobbie began the song, “It was the third of June, just  sleepy, dusty delta day…”

As The Independent reported in 2017, the reason for Billie Joe’s mythical death remains a mystery: “Fifty years on we’re no wiser as to why Billie Joe did what he did and in the context of the song and Gentry’s intentions, that’s just as it should be.”

Let’s try to demystify some gleanings from last week’s federal appellate decisions:

The Eighth Joins the Party: The 8th Circuit joined other circuits that have ruled on this issue, holding last week that two brothers whose cases involved the distribution of both crack and powder were eligible for the retroactive Fair Sentencing Act reduction authorized by the First Step Act, despite the fact that the powder cocaine in their cases was such that the Fair Sentencing Act did not lower their Guidelines ranges.

The Circuit ruled that Sec 404(a) of the First Step Act says that covered offenses are those whose penalties “were modified by section 2 or 3 of the Fair Sentencing Act.” Their crack penalties were reduced, even if the brothers “ultimately would be subject to the same statutory sentencing range as a consequence of” the powder cocaine. Thus, the sentencing judge now had to decide whether they should be granted a lower sentence.

The Eleventh Goes Its Own Way (Again): A week or so ago, I reported on United States v. Lopez, a 9th Circuit case that interpreted the First Step Act to dramatically expand the application of the drug offense safety valve set out in 18 USC § 3553(f).

goyourownway210603The 11th Circuit (who else) has helpfully provided an opinion going absolutely the opposite direction. Julian Garcon got the safety valve when sentenced for cocaine distribution, because he didn’t meet all three subsections of the law required to be disqualified. The government appealed, arguing that the word “and” in the statute really meant “or.”

Who would be twisted enough to think that? The 11th Circuit, that’s who. The panel held that “based on the text and structure of § 3553(f)(1), the “and” is disjunctive. Accordingly, we vacate the sentence and remand for resentencing…”

Ohio State University law prof Doug Berman said last week in his Sentencing Law and Policy blog that the case “produced a crisp circuit split on the proper interpretation of a key provision of the First Step Act on a matter that impacts many hundreds of federal drug cases every month… It is surely only a matter of time before other circuits weigh in on this important issue, and I assume this split will be deepened in the coming months and that the Supreme Court will have to take cert.”

United States v. Spencer, Case No 19-2685, 2021 U.S. App. LEXIS 15862 (8th Cir, May 27, 2021)

United States v. Garcon, Case No 19-14650, 2021 U.S. App. LEXIS 14683 (11th Cir, May 18, 2021)

Sentencing Law and Policy, In contrast to Ninth Circuit panel, Eleventh Circuit panel gives narrow reading to FIRST-STEP-amended mandatory-minimum safety valve provision (May 27)

– Thomas L. Root

It Depends on What the Meaning of ‘And’ Is – Update for May 24, 2021

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GOOD NEWS FROM CONJUNCTION JUNCTION

conjunction210524The “safety valve” in 18 USC § 3553(f) allows a district court to sentence a drug defendant below an otherwise mandatory-minimum sentence if he or she meets certain criteria – such as the offense having no gun or violence, the defendant not being a leader in the offense, and the defendant truthfully admitting his or her role in the offense. But the first criterion has always been the tough one, that the defendant’s criminal history score could be no higher than one, a requirement that disqualified everyone but the most virginal of miscreants.

Congress changed all of that in the First Step Act. In expanding the number of people covered by the safety valve, Congress wrote that a defendant now must only show that he or she “does not have… (A) more than 4 criminal history points… (B) a prior 3-point offense… and (C) a prior 2-point violent offense.”

The “safety valve” was one of the only sensible things to come out of the Violent Crime Control and Law Enforcement Act of 1994, the bill championed by then-Senator Joe Biden that, a quarter-century later, has been used to brand him a mass-incarcerating racist.  The safety valve was intended to let people convicted of drug offenses as first-timers avoid the crushing mandatory minimum sentences that Congress had imposed on just about all drug dealing.

Eric Lopez got caught smuggling meth across the border. Everyone agreed he qualified for the safety valve except for his criminal history. Eric had one prior 3-point offense, and the government argued that was enough to disqualify him. Eric argued that the First Step Act amendment to the “safety valve” meant he had to have all three predicates: more than 4 points, one 3-point prior, and one 2-point prior violent offense.

andor210524Remember the fun that the media had when Bill Clinton famously dodged a deposition question by saying, “It depends on what the meaning of ‘is’ is?” That’s not so funny in the world of statutory construction. In Eric’s case, the government was contending that the First Step amendment meant that if a defendant had any one of the listed conditions – more than 4 points total, at least one 3-point prior, or at least one 2-point prior violent offense – he or she could not get the safety valve. In other words, the government was arguing that “and” means “or.” The district court, however, agreed with Eric that the conjunction “and” means “and.”

Last week, the 9th Circuit agreed. In a decision that dramatically expands the reach of the safety valve, the Circuit applied the rules of statutory construction and held that the First Step amendment was unambiguous. “Put another way, we hold that ‘and’ means ‘and.’”

The government argued that such an interpretation could lead to crazy results (by which it meant “pro-defendant” results, no doubt). The 9th was unswayed:

“We recognize that § 3553(f)(1)’s plain and unambiguous language might be viewed as a considerable departure from the prior version of § 3553(f)(1), which barred any defendant from safety-valve relief if he or she had more than one criminal-history point under the Sentencing Guidelines… As a result, § 3553(f)(1)’s plain and unambiguous language could possibly result in more defendants receiving safety-valve relief than some in Congress anticipated… But sometimes Congress uses words that reach further than some members of Congress may have expected… We cannot ignore Congress’s plain and unambiguous language just because a statute might reach further than some in Congress expected… Section 3553(f)(1)’s plain and unambiguous language, the Senate’s own legislative drafting manual, § 3553(f)(1)’s structure as a conjunctive negative proof, and the canon of consistent usage result in only one plausible reading of § 3553(f)(1)’s “and” here: “And” is conjunctive. If Congress meant § 3553(f)(1)’s “and” to mean “or,” it has the authority to amend the statute accordingly. We do not.”

angels170726It’s pretty clear that this is an example of bad draftsmanship, an amendment that gives defendants much more than the Senate intended. But that’s irrelevant. For very good reason, when the text of a statute says something plainly, courts will not check it against the legislative history to determine whether what it says is consistent with legislative intent.  It may seem to some that statutory interpretation debate has an “angels on the head of a pin” quality to it, but reading statutes to mean what they say rather than what the courts wish they said or what the legislators might have said had they been more careful is vital to avoiding judicial mischief.

This decision could be huge for a lot of people sentenced to drug offenses after the effective date of the First Step Act in December 2018.

United States v. Lopez, Case No. 19-50305, 2021 U.S. App. LEXIS 15184 (9th Cir. May 21, 2021)

Sentencing Law & Policy, Ninth Circuit panel interprets FIRST STEP amendment to statutory safety valve to greatly expand who can avoid federal mandatory-minimum sentences (May 22)

– Thomas L. Root

Short Rockets – Update for June 18, 2020

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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 SHORTS FROM LAST WEEK…

rocket190620Crack Retroactivity: Monae Davis won release a year ago when a district court gave him a retroactive crack sentence reduction under Section 404 of the First Step Act. However, he has lived under a cloud since then because the government appealed, arguing that because his offense involved 1.5 kilos of crack, he was not eligible for a Section 404 reduction (because his Guidelines would not change).

The question of eligibility has haunted Section 404 applicants since First Step passed. Does 404 relief turn on whether only on whether the punishment specified in the statute under which the defendant was charged has changed, or must the change mean that the Guidelines for the amount of drugs with which the defendant was involved changed?

Freedom is vastly preferred over prison, but Monae’s joy must have been muted, knowing as he did that a case in front of the Court of Appeals could send him back to prison tomorrow (and I mean “tomorrow” in its most literal sense).

Luckily for Monae, two weeks ago his joy became unbounded. The 2nd Circuit joined the surge of courts of appeal disagreeing with the government’s draconian view of Section 404. The Circuit rejected the government’s argument that Section 404 eligibility turns on a defendant’s actual conduct, holding that “eligibility depends on the statutory offense for which a defendant was sentenced, not the particulars of any given defendant’s underlying conduct. Because the retroactivity meant that the Fair Sentencing Act now applied, and because the FSA modified the statutory penalties for Monae’s offense, he was eligible for Section 404 relief.

United States v. Davis, Case No. 19-874, 2020 U.S. App. LEXIS 17736 (2nd Cir June 5, 2020)

Drug “Safety Valve”:  Devin Hodgkiss pled guilty to distributing meth on an occasion in April 2018 and to possessing a firearm in furtherance of a drug trafficking offense in June 2018 (an 18 USC § 924(c) offense). He asked for “safety valve” sentencing under 18 USC 3553(f) to duck under the 10-year drug statutory minimum, but the district court denied him, holding that he was ineligible for the safety valve because he had possessed a gun as relevant conduct.

safetyvalv200618[Background: The “safety valve,” found in 18 USC § 3553(f), permits a drug defendant who meets certain limiting criteria (light criminal history, no leadership role, no violence, no gun, etc) to be sentenced without regard to statutory minimum sentences (and with a Guidelines break as well)].

Last week, the 8th Circuit reversed, holding that Devin was entitled to the safety valve despite its requirement that the defendant not have possessed a firearm “in connection with the offense.”

“Relevant conduct,” the Circuit said, “is a concept developed by the Sentencing Commission… The ‘safety-valve‘ limitation on statutory minimums, however, appears in an Act of Congress that is not governed by definitions in the sentencing guidelines. Therefore, to determine whether Hodgkiss possessed a firearm ‘in connection with the offense,’ 18 USC 3553(f)(2), we must consider what the statute means by ‘the offense’.”

The 8th concluded that the term “offense” should be strictly defined as “offense of conviction.” Here, Devin was convicted of distribution based on an April 2018 drug sale. The § 924(c) was based on a June 2018 drug distribution. Therefore, the gun was not possessed in connection to the drug conviction. He still faced a mandatory minimum of five years for the gun, but the 10-year statutory minimum no longer applied.

United States v. Hodgkiss, Case No. 19-1423, 2020 U.S. App. LEXIS 17874 (8th Cir June 8, 2020)

– Thomas L. Root

Smarter Sentencing Act Back In The Senate Hopper – Update for November 19, 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.

SMARTER SENTENCING ACT RE-INTRODUCED IN SENATE
Sen. Mike Lee (R-Utah)
Sen. Mike Lee (R-Utah)

The Smarter Sentencing Act, a bill intended to further reduce drug mandatory minimum sentences, was reintroduced in the Senate last week by Sen. Richard Durbin (D-Illinois) and Mike Lee (R-Utah), both members of the Senate Judiciary Committee. As of the date of this report, we have no bill number to associate with the legislation.

Sen. Richard Durbin (D-Illinois)
Sen. Richard Durbin (D-Illinois)

A lot of what had been contained in prior versions of the SSA, a bill which has been introduced in every Congress since 2013, was included in the First Step Act. What the current version contains is unclear, because the text of the proposed bill has not yet been released. However, Durbin’s office said “the central remaining sentencing reform in the Lee-Durbin legislation would reduce mandatory minimum penalties for certain nonviolent drug offenses.”

In the last iteration of the bill, S.1933 (115th Congress, 2017-18), the bill proposed an expanded “safety valve” under 18 USC § 3553(f) to allow a court to impose a sentence below the statutory mandatory minimum for an otherwise eligible drug offender who has three or fewer criminal history points. This change was incorporated into the First Step Act. Also, last year’s SSA reduced mandatory minimum sentences for drug offenses specified in 21 USC § 841(b)(1)(A) and (b)(1)(B):

•  from 10 years to 5 years for a first-time high-level offense (e.g., one kilogram or more of heroin),

•  from 20 years to 10 years for a high-level offense after one prior felony drug offense,

•  from life to 25 years for a high-level offense after two or more prior felony drug offenses,

•  from 5 years to 2 years for a first-time low-level offense (e.g., 100 to 999 grams of heroin), and

•  from 10 years to 5 years for a low-level offense after one prior felony drug offense.

The First Step Act incorporated the life-to-25 year and the 20-to-15 year reductions, but not the remainders.

Additionally, last year’s SSA made existing mandatory minimums inapplicable to a defendant who functions a courier; and establishes new, shorter mandatory minimum prison terms for a courier.

The current version of the Smarter Sentencing Act “gives federal judges the authority to conduct individualized reviews to determine the appropriate sentences for certain nonviolent drug offenses,” Durbin said in a press release.

BILL-DOA191120Lee said, “The SSA will give judges the flexibility and discretion they need to impose stiff sentences on the most serious drug lords and cartel bosses, while enabling nonviolent offenders to return more quickly to their families and communities.”

The bill is cosponsored by ten Democratic senators, including three presidential contenders, making the likelihood it will pass in the Senate virtually zero.

The Justice Roundtable, Durbin, Lee Reintroduce Smarter Sentencing Act (Nov. 16)

– Thomas L. Root