Tag Archives: section 404

Sentence Reduction Decisions Can’t ‘Phone It In’ – Update for October 20, 2022

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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.

COMPASSIONATE RELEASE AND SEC 404 DENIALS CANNOT BE ROTE

Since prisoners have been permitted to file motions for sentence reduction under 18 U.S.C. § 3582(c)(1)(A)(i) – generally known as “compassionate release” – and motions for application of the Fair Sentencing Act of 2010 under § 404 of the First Step Act, we have seen district court denials that seemed pretty summary and “cookie cutter.”

cookiecutter221020To be sure, courts have had to deal with thousands of such motions, and undoubtedly the judges detail review and preparation to their junior-most clerks. But I am reminded of a surgical procedure I had a few years ago. The surgeon dismissed my concerns with a breezy “don’t worry – yours will be my 1,500th one of these.” I responded, “Maybe so, but will be my first.”

Compassionate release and § 404 motions are like that. Joe Prisoner’s motion may be the hundredth one the court has decided, but for Joe, it’s his first.

Decisions from the 4th and 7th Circuit a week ago delivered a stark reminder to district judges that denials of such motions should give due consideration to the movant’s arguments and evidence – not necessarily to accept them –but at least to note what the prisoner said and to explain why that argument is insufficient to carry the day.

Jon Singleton, having done 14 years already for a meth conspiracy, sought compassionate release because of COVID. Jon’s district court found that he had not shown an extraordinary and compelling reason for release because he had twice refused the vaccine. The thinking is that anyone who refuses the vaccine can hardly be sincerely worried about the effects of COVID-19.  If that weren’t enough, the district court said, the seriousness of Jon’s offense one and a half decades ago made the original sentence correct.

On appeal Jon complained said the district court had it wrong. He had refused the vaccine only once, and that time he did so only because he had a history of allergic reactions to vaccines and “was denied the ability to consult with a medical professional prior to vaccination.”

mywayor221020This was hardly a novel complaint: Dr. Homer Venters, a court-appointed epidemiologist who inspected FCI Lompoc for an ACLU class-action lawsuit against the BOP over COVID, lambasted the BOP over a year ago for the agency’s “take it or take a hike” approach to administering the COVID vax. Venters told the Central District of California District Court that he was “extremely concerned” about low inmate vaccinating rates, which he attributed to prison staff not addressing inmates’ “very valid and predictable concerns” about the effects the vaccine might have on their underlying health conditions. Rather than address inmate questions, Venters testified, prison staff dismissively told the inmates to either “take the vaccine or sign a refusal form.”

Two weeks ago, the 4th Circuit sided with Jon. “Initially,” the Court said, “the district court erroneously stated that Singleton refused the vaccine twice; the record reveals that he refused the vaccine only once. Moreover, the district court failed to consider Singleton’s argument that he refused the vaccine because he had a history of a severe allergic reaction to the influenza vaccine and other medications and was denied the ability to consult with a medical professional prior to vaccination. Because the district court made a factual error and failed to consider Singleton’s individual circumstances, we conclude that the court abused its discretion…”

Jon also complained the district court failed to consider (1) his rehabilitation evidence; (2) his argument that a “time served” would constitute just punishment; (3) his low recidivism score; and (4) that due to a change in state law, one of his prior drug felonies was reduced to a misdemeanor, which would have reduced his criminal history category. The Circuit agreed: “Given the amount of time Singleton spent in prison before filing his motion and the fact that the district court did not acknowledge any of his many arguments that relied on post-sentencing conduct and circumstances, we conclude that the district court abused its discretion in considering the § 3553 factors.”

Jamell Newbern was convicted of crack distribution in 2005. Because he had two qualifying prior convictions, he was sentenced as a Guidelines career offender. At the time, the district judge said he would have sentenced Jamell to the same term even if he had not been a career offender.

denied190109The District Judge had long since retired. Since 2005, one of Jamell’s two prior convictions (reckless discharge of a firearm) was held to not be a crime of violence. But the new judge on Jamell’s case reimposed the original 300-month sentence, adopting the retired judge’s position that 300 months was warranted whether or not Jamellwas a career offender or not. The new judge did not even address Jamell’s post-sentencing record.

Last week, the 7th Circuit agreed that the new judge’s adoption of the prior judge’s determination that Jamell’s conduct warranted a 300-month sentence regardless of his status as a career offender.

“But,” the 7th said, “we see things differently when it comes to the district court’s failure to respond to Newburn’s argument for relief based on his good behavior in prison. Concepcion expressly established that conduct in prison—good or bad—can be properly considered in a First Step Act motion. Newburn meaningfully emphasized his positive record in his motion. By no means was Newman making a throwaway point. To the contrary, he devoted about a full page of his motion to highlighting his clean disciplinary record, employment in prison, completion of a drug-education course, and earning a GED. Concepcion v. United States does not require a detailed explanation in response to these considerations, but we cannot be sure that the district court considered Newburn’s arguments when it provided no explanation at all.”

The Circuit said that in light of Concepcion, “it is clear that the district court’s failure to address Newburn’s good-conduct argument rises to the level of procedural error.”

United States v. Singleton, Case No 21-6798, 2022 U.S.App. LEXIS 27943 (4th Cir., Oct. 6, 2022)

Santa Barbara Independent, Doctor ‘Extremely Concerned’ About Low Vaccination Rate Among Lompoc Prisoners (May 20, 2021)

United States v. Newbern, Case No. 22-1244, 2022 U.S.App. LEXIS 28348 (7th Cir., Oct. 12, 2022)

– Thomas L. Root

Concepcion’s Concept: Discretion on Resentencing is Presumed – Update for June 29, 2022

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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.

DOES CONCEPCION HOLD LESSONS FOR COMPASSIONATE RELEASE?

The Supreme Court ruled on the final two criminal cases of the term on Monday (although there are six more October Term 2021 cases yet to be decided before the end of the week).

crack-coke200804Back in 2009, Carlos Concepcion pled guilty to distributing at least five grams of crack cocaine, and was sentenced to 228 months in prison. The following year, Congress passed the Fair Sentencing Act, which brought crack sentences more in line with powder cocaine sentences, down from a 100:1 ratio to an 18:1 ratio.

But the Fair Sentencing Act was not retroactive, so people sentenced before it was passed – like Carlos – could not benefit from it. Only when the First Step Act (FSA) passed in 2018 were the benefits of the Fair Sentencing Act extended to the Carlos Concepcions of the world.

Under FSA § 404, Carlos was entitled to apply to his sentencing court for resentencing at a lower level. Like most inmates – whose resources are only sufficient to pay for some telephone calls home and a few items in the commissary – Carlos could not afford a lawyer, so he filed pro se.

careeroffender22062Complicating Carlos’s case was the fact that under the advisory Sentencing Guidelines, he was deemed to be a career offender. Career offender status, a label that is easily applied to people who have hardly spent their lives as a criminal, sends a defendant’s minimum sentencing range guideline into low earth orbit. Carlos’s range was no exception. Under the statute, Carlos faced a minimum 5-year sentence, but his advisory sentencing range as a Guidelines career offender started at 17½ years.

The government argued that Carlos’s Guidelines sentencing range did not change despite the fact that the Fair Sentencing Act lowered his minimum sentence to zero, because the career offender guidelines were not based on drug amount or statutory minimum sentences. Carlos responded that he should no longer be considered a career offender because one of his prior convictions was vacated and his prison record showed evidence of rehabilitation through his participation in drug and vocational programs, spiritual growth, and a solid reentry plan.

Carlos’s sentencing judge sided with the government, holding that because Carlos’s sentencing range remained the same, Carlos could not rely on the Fair Sentencing Act for a lower sentence.

Last Monday, the Supreme Court ruled in favor of Carlos. Justice Sonia Sotomayor, writing for a 5-4 majority, said that “Federal courts historically have exercised… broad discretion to consider all relevant information at an initial sentencing hearing, consistent with their responsibility to sentence the whole person before them. That discretion also carries forward to later proceedings that may modify an original sentence. Such discretion is bounded only when Congress or the Constitution expressly limits the type of information a district court may consider in modifying a sentence.”

discretion220629Congress did nothing in the First Step Act to “contravene this well-established sentencing practice,” Sotomayor said. “Nothing in the text and structure of the First Step Act expressly, or even implicitly, overcomes the established tradition of district courts’ sentencing discretion.”

Ohio State University law professor Doug Berman, writing in his Sentencing Law and Policy blog, argues that the Concepcion ruling has an impact well outside the seemingly limited FSA Sec. 404 resentencing. “Specifically,” he wrote, “I think the decision resolves not only the circuit split surrounding crack resentencing cases, but also the circuit split surrounding what factors can serve as the basis for compassionate release after the FIRST STEP Act.

Berman noted:

There is a deep circuit split about whether non-retroactive changes in sentencing law may constitute “extraordinary and compelling reasons” for compassionate release. Ever the textualist, I have argued that non-retroactive changes in sentencing law can provide the basis for compassion release because nothing in the text of § 3582(c)(1)(a) supports the contention that non-retroactive changes cannot ever constitute ‘extraordinary and compelling reasons” to allow a sentence reduction, either alone or in combination with other factors. But I believe the Third, Sixth, Seventh and Eighth Circuits have all formally held otherwise. And yet, this language from the Supreme Court’s opinion in Concepcion would seem to undercut any court efforts to invent extra-textual limits on sentencing or resentencing considerations:

It is only when Congress or the Constitution limits the scope of information that a district court may consider in deciding whether, and to what extent, to modify a sentence, that a district court’s discretion to consider information is restrained…

The only limitations on a court’s discretion to consider any relevant materials at an initial sentencing or in modifying that sentence are those set forth by Congress in a statute or by the Constitution….

Moreover, when raised by the parties, district courts have considered nonretroactive Guidelines amendments to help inform whether to reduce sentences at all, and if so, by how much…. Nothing express or implicit in the First Step Act suggests that these courts misinterpreted the Act in considering such relevant and probative information.

Berman argues that the Supreme Court’s language about a sentencing judge’s broad discretion “when considering a sentence modification is directly relevant to federal judges’ consideration of so-called compassionate release motions.”

compassion160124There is nothing in 18 USC § 3582(c)(1)(A)(i) (the statute on sentence reductions, generally if inaccurately known as “compassionate releases”) that in any way limits a judge in what he or she may consider in fashioning a lower sentence, or for that matter, in deciding whether to impose a lower sentence at all. That should be game, set and match for the issue of the limits of a court’s discretion on deciding a compassionate release motion.

One interesting twist: the Sentencing Commission will soon be reconstituted, and it seems clear that the new commissioners consider rewriting U.S.S.G. § 1B1.13 – the Guidelines policy statement on compassionate releases – as job one. If a rewritten § 1B1.13 limits a sentencing court’s discretion in granting or denying a compassionate release motion, would such a limitation be one “set forth by Congress in a statute or by the Constitution?” Sentencing Guidelines must be submitted to Congress, but go into effect unless the Senate otherwise directs. And the compassionate release statute requires a sentencing judge to ensure that any sentence reduction “is consistent with applicable policy statements issued by the Sentencing Commission.”

But that’s a question for another time (specifically, after a new § 1B1.13 goes into effect, which probably will not be before November 2023. For now, movants for compassionate release would do well to apply Prof. Berman’s broad interpretation of Concepcion’s holding.

Concepcion v. United States, Case No 20-1650, 2022 U.S. LEXIS 3070 (June 27, 2022)

ABA Journal, In unusual lineup, SCOTUS rules for pro se prisoner who sought lower sentence under First Step Act (June 27, 2022)

Sentencing Law and Policy, SCOTUS ruling in Concepcion, while addressing crack cases, should also resolve circuit split on compassionate release factors (June 27, 2022)

– Thomas L. Root

11th Circuit Does Addition by Subtraction on First Step Crack Resentencing – Update for May 17, 2021

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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.

SECTION 404 – WHERE LESS IS LESS, EVEN WHEN IT’S MORE

numbersA lot of times, prisoners – who are rightly focused on the substance of their claims – skip over the finer points of procedure. After all, procedure is kind of boring. But paying attention can bring dividends, or – as the old proverb goes – “God is in the details.”

Ask Nolan Edwards. He was doing life for a crack offense when the First Step Act passed, letting him seek retroactive application of the Fair Sentencing Act. First Step Act § 404(b) provides that the court that originally sentenced a defendant for a crack offense may, when certain conditions are met, “impose a reduced sentence.” Meanwhile, 18 USC § 3582(c)(1)(B) (the section many § 404 motions cite), is similar but not identical. It authorizes a district court to “modify an imposed term of imprisonment to the extent otherwise permitted by statute…”

Nolan filed a motion under First Step Act § 404 and § 3582(c)(1)(B). The district court reduced his sentence to time served, but concluded the First Step Act required it to impose an 8-year supervised release term. Nolan appealed the supervised release term, arguing that § 404 only empowers a court to subtract from a sentence, not add to one.

Last week, the 11th Circuit agreed. A § 404 motion “is self-contained and self-executing,” the Circuit said, and does not need to rely on 18 USC § 3582(c)(1)(b) to be granted. Therefore, a district court is entitled only to reduce a prisoner’s overall sentence pursuant to a § 404 motion.

goddetails210517But that didn’t help Nolan. The 11th said that the focus was on the overall sentence, not just the components. So if the “unitary” sentence – imprisonment and supervised release considered together – was reduced, First Step Act § 404’s requirements were met. Here, Nolan’s life sentence was cut to 260 months and eight years of supervised release. That was clearly a reduced sentence, the Circuit said, despite the fact supervised release went from zero to 8 years.

United States v. Edwards, Case No. 19-13366, 2021 U.S.App. LEXIS 14140 (11th Cir., May 13, 2021)

– 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