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The “Hollowayers” Work To Produce Another Hit – Update for April 5, 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.

‘HOLLOWAY PROJECT’ BATTLES DOJ ON COMPASSIONATE RELEASE

honeymooner240405Longer ago than I care to recall (I was not yet in kindergarten), Jackie Gleason rocketed to fame as one of the creators and star of “The Honeymooners.” Now, about seven decades later, John Gleeson is the star of his own production – no comedy here – leading what may soon bear a dramatic fight to peel away what he calls the injustice of “stacked” mandatory federal prison sentences.

I was saddened to see Judge Gleeson give up his lifetime appointment on the federal bench eight years ago for white-shoe Wall Street law firm Debevoise & Plimpton. I could hardly blame him: D&P reportedly started him at well above minimum wage (even California minimum wage). But I selfishly wanted him to stay on as an Eastern District of New York judge for no other reason than his cerebral and compassionate approach to federal sentencing. I figured that Debevoise probably didn’t do a lot of court-appointed federal defense work, and we thus had probably seen the last of Judge Gleeson’s fresh and intelligent approach to sentencing.

What did I know? Eight years later, Judge Gleeson not only sits on the U.S. Sentencing Commission, he’s leading a D&P Initiative that could soon face off with the Department of Justice at the Supreme Court.

gleesonB160314Bloomberg Law reports that Judge Gleeson is the driving force behind “The Holloway Project,” a pro bono program that represents prisoners convicted of multiple 18 USC § 924(c) offenses prior to the passage of the First Step Act. The Project’s goal is to reduce the sentences for clients they believe have been rehabilitated after decades in prison.

The project is named for Francois Holloway, who Gleeson himself sentenced to 57 years in a robbery/gun case but later reduced by convincing the U.S. Attorney for EDNY at the time, Loretta Lynch, not to get in the way.

(Parenthetically, the Holloway resentencing spawned a cottage industry of low-brow post-conviction consultants who were hawking “Holloway motions” to prisoners. I heard from a lot of people asking how to file Holloway motions, only to be disappointed when I told them that all they had to do was get the U.S. Attorney and their judge to agree that they should be let out. The universal response: “The prosecutor will never agree to that!”   No kidding. It was hardly Judge Gleeson’s fault that bottom-feeders tried to bilk inmate families on the basis of the Judge’s extraordinary effort on Francois’s behalf, but the Holloway case  was a true Black Swan.)

blackswan170206Back to today: As a Sentencing Commission member, Judge Gleeson championed the adoption of USSG § 1B1.13(b)(6), a subsection of the new Guidelines policy statement on sentence reduction motions (commonly if inaccurately called “compassionate release” motions). which defines overly long sentences where the law has changed as an extraordinary and compelling basis for an 18 USC § 3582(c)(1) sentence reduction. Subsection (b)(6) defines when a nonretroactive change in the law that would reduce a current sentence dramatically if it were retroactive could constitute an “extraordinary and compelling” reason for a sentence reduction under 18 USC § 3582(c)(1)(A).

Subsection (b)(6) is important to compassionate release for the same reason all of USSG § 1B1.13(b)(6) is important. Section 3582(c)(1)(A) authorizes a judge to grant a sentence reduction when three conditions are met:

•  the reduction must be for “extraordinary and compelling reasons.”

•  the reduction must be consistent with applicable Sentencing Commission policy statements.

•  the reduction must be “consistent” (whatever that means) with the sentencing factors of 18 USC § 3553(a).

When Congress enacted § 3582 as part of the Sentence Reform Act of 1984, it stipulated that rehabilitation alone was not an extraordinary and compelling reason for a sentence reduction. As for what might be, Congress did not say. Instead, it delegated to the Sentencing Commission the authority and duty to define exactly what situations constitute “extraordinary and compelling reasons” under the statute.

Guideline 1B1.13 is the Commission’s response, listing by my count 17 situations that are extraordinary and compelling. Of focus to Judge Gleeson’s team is USSG § 1B1.13(b)(6), which says

Unusually Long Sentence.—If a defendant received an unusually long sentence and has served at least 10 years of the term of imprisonment, a change in the law (other than an amendment to the Guidelines Manual that has not been made retroactive) may be considered in determining whether the defendant presents an extraordinary and compelling reason, but only where such change would produce a gross disparity between the sentence being served and the sentence likely to be imposed at the time the motion is filed, and after full consideration of the defendant’s individualized circumstances.

Before the new 1B1.13 was adopted last year, some Circuits ruled that judges – who remain free to consider other factors as being “extraordinary and compelling” – could consider changes in the law as a basis for compassionate release. Others flatly refused to approve such bases for compassionate release. When the Circuit split reached the Supreme Court a year ago, the DOJ urged SCOTUS to wait to consider the issue until the USSC adopted its new policy statement as Congress required.

Now that the Commission has adopted new rules, DOJ is arguing in multiple cases that the Commission exceeded its authority by making the change.

“What [DOJ] said very early on is that their nationwide litigation position was that they are objecting to this provision as an overstep from the Sentencing Commission,” said University of Chicago law professor Erica Zunkel.

A February Northern District of Georgia court decision complained the DOJ had “contradicted itself” by arguing that the Commission doesn’t have the power to answer questions it once urged the Commission to answer:

The DOJ has previously argued that courts should refrain from addressing the retroactivity question because “it should be addressed first by the Commission.” The Commission has now addressed the issue. How can the Commission have the authority to address the question but exceed that authority by addressing the question? This argument lacks merit.

The issue is currently before other district and appeals courts. Gleeson and others expect it will reach the Supreme Court.

moonalice240405When it does, expect Debevoise to be there. Unfortunately, Judge Gleeson himself will not be: as a member of the Sentencing Commission, he will recuse himself from participating in a case arguing the Commission’s authority.

To the moon, DOJ! To the moon!

Bloomberg Law, Debevoise, DOJ Sentencing Reform Clash Could Hit Supreme Court (March 21, 2024)

United States v. Allen, Case No. 1:09-cr-320, 2024 U.S.Dist. LEXIS 28049 (NDGa, February 12, 2024)

– Thomas L. Root

4th Circuit Endorses Compassionate Release for Stacked 924(c) Sentences – Update for December 7, 2020

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THE REAL MCCOY


mccoy201207The compassionate release statute, 18 USC § 3582(c)(1)(A)(i), requires that any sentence reduction be “consistent with applicable policy statements issued by the Sentencing Commission.” The policy statement implicated by the statute is set out in USSG § 1B1.13, a Guideline which lists three very specific reasons for granting compassionate release, and a fourth “catch-all” provision permitting grant of a compassionate release motion if “as determined by the Director of the Bureau of Prisons, there exists in the defendant’s case an extraordinary and compelling reason other than, or in combination with, the [other three] reasons.”

USSG § 1B1.13 was written before the First Step Act authorized inmates to file their own sentence reduction motions. The Guideline has never been changed, because the Sentencing Commission has lacked a quorum, and thus has been able to conduct no business, since 2018. But that has not stopped the government from arguing that compassionate release motions could not be granted because the Director of the BOP has not decided that possessing COVID-19 risk factor is an extraordinary and compelling reason for a sentence reduction.

Many judges decided that because § 1B1.13 was written back in the day when only the BOP could file the motion, it was a relic that could be ignored. But not all. The result has been a terrible disparity between district courts in granting compassionate release motions: the same set of facts that justify a sentence reduction in front of one judge would be rejected by another.

Last September, the 2nd Circuit laid down the law on compassionate release in United States v. Brooker (some are calling the case United States v. Zullo), ruling that district courts have broad discretion to consider “any extraordinary and compelling reason for release that a defendant might raise” to justify a sentence reduction under § 3582(c)(1)(A), and that Guideline § 1B1.13 only applies to compassionate release motions brought by the BOP (which would be virtually none of them). Then, two weeks ago, the 6th Circuit followed Brooker/Zullo in United States v. Jones, and the 7th agreed in United States v. Gunn.

Sentencestack170404It may be hard to remember that compassionate release motions get filed for reasons other than COVID-19. One reason advanced by some defendants has been that they received horrific sentences because of stacked § 924(c) convictions. Recall that before First Step, if you robbed a bank with a gun, you got maybe 87 months for the robbery and a mandatory 60 months more for the gun. But rob three banks on successive days, and you would get 87 months for the robbery, 60 more months for the gun used in the first robbery, 300 months more for the gun used the next day, and 300 more months for the gun used the third day. This was because § 924(c) specified that each subsequent § 924(c) conviction carried 300 months. First Step changed that, making clear that the 300-month sentence only applied if you committed a § 924(c) offense after being convicted of the first offense.

First Step did not make the § 924(c) changes retroactive. Nevertheless, after it passed some guys with stacked § 924(c) violations filed compassionate release motions, arguing that it was extraordinary and compelling to make them serve much longer sentences when the law had changed, and people being sentenced now did not face the same penalty.

One guy in Virginia, Thomas McCoy, and three others from Maryland filed such cases. Their respective district courts agreed with the motions, cutting their sentences to time served. But the government appealed, arguing that the sentence reduction did not fit § 1B1.13, and even if they did, the fact that the defendants had stacked § 924(c) sentences was not extraordinary and compelling because in First Step, Congress decided against retroactivity of the First Step changes to § 924(c). Last week, the 4th Circuit sided with the defendants, in the process pushing the bounds of compassionate release to new horizons.

The 4th Circuit agreed with Brooker, Gunn and Jones that § 1B1.13 – because it refers only to compassionate release motions filed by the BOP – is not an “applicable policy statement” within the meaning of the statute, and thus may be ignored.

draco201207Beyond that, the 4th rejected the Government’s argument that there was nothing wrong with holding the defendants to their draconian sentences, ruling instead that “the district courts in these cases appropriately exercised the discretion conferred by Congress… We see no error in their reliance on the length of the defendants’ sentences, and the dramatic degree to which they exceed what Congress now deems appropriate, in finding “extraordinary and compelling reasons” for potential sentence reductions…”

The appellate holding is huge, suggesting that sentence unfairness and rehabilitation gives sentencing judges the right to make sentence reductions under § 3582(c)(1)(A)(i).

United States v. McCoy, Case No 20-6821, 2020 U.S. App. LEXIS 37661 (4th Cir., Dec. 2, 2020)

– Thomas L. Root

Two More Circuits Ease Compassionate Release Requirements – Update for November 23, 2020

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6TH AND 7TH CIRCUITS FOLLOW BROOKER; CLARIFY COMPASSIONATE RELEASE

If there has been any silver lining to the COVID-19 pandemic at all – and reasonable people can easily argue that there has not been – it might be the explosion in compassionate release motions brought by federal prisoners.

compassionate200928
As I have said before, 18 USC § 3582(c)(1)(A)(i) – which permits federal judges to reduce otherwise-final sentences when “extraordinary and compelling” reasons for doing so exist – has been a “sleeper” for three decades. Until 2018, the “catch” in this sentence reduction subsection that made it such a snoozer was the requirement that only the director of the Bureau of Prisons could bring a motion under the subsection. The Director, of course, is a bureaucrat who would not have petitioned to have his or her own mother released from federal stir.

By the way, nowhere in the statute is the motion called a “compassionate release” motion. Nevertheless, the sentence release motion has been dubbed as such by the BOP, to the point that the terms “compassionate release” and “sentence reduction” are freely interchangeable.

Prior to 2018, the number of occasions on which the BOP asked a court to release an inmate early made blue moons seem like a nightly event by comparison. Congress, tired of the BOP’s nonfeasance in using the sentence-reduction subsection, modified § 3582(c)(1)(A)(i) in the First Step Act, so that now – after paying lip service to the BOP’s former role by asking the Director to bring a sentence reduction motion no one seriously believes the BOP will bring – an inmate may file the motion directly.

Sentence reduction business picked up after First Step’s passage 23 months ago, but it took the pandemic to start the land rush. Somewhere around 4,000 sentence reduction motions claiming that COVID-19’s risk to medically-vulnerable inmates have been filed in the last eight months.

But with no history of sentence reduction adjudication, there has been blessed little judicial guidance as to how a court is to analyze such a motion, the application of the Sentencing Guidelines to sentence reduction motions, and how much detail is demanded in a decision denying such a motion. These are matters of more than academic interest.

According to 18 USC § 3582(c)(1)(A)(i), a sentence reduction motion must show the existence of extraordinary and compelling reasons for the reduction and that the reduction “is consistent with applicable policy statements issued by the Sentencing Commission.” In deciding the motion, the statute directs, the court must “consider[] the factors set forth in section 3553(a) to the extent that they are applicable.”

details170803As is usually the case, the devil’s in the details. Lack of definitive appeals court decisions on what the subsection requires a district court to do has led to dreadfully inconsistent results, with conditions that were extraordinary and compelling to one judge are ho-hum to another. Some judges hold that the outdated Sentencing Commission guidance (it has not been changed to account for the First Step Act, because the Sentencing Commission has lacked a quorum since December 2018) must be followed, regardless of the nonsensical result such guidance dictates. And while many judges provide detail in opinions denying sentence reduction motion, others reject them with one-sentence orders that rob appeal courts of the ability to figure out the basis for the denial.

Finally, we are beginning to get appellate guidance on how district courts should decide 18 USC § 3582(c)(1)(A) petitions. In late September, the 2nd Circuit handed down United States v. Brooker, holding that the limitations of Sentencing Guideline 1B1.13 simply do not apply to sentence reduction motions brought by prisoners rather than the BOP. Last Friday, the 6th and 7th Circuits added materially to the body of law guiding decision-making on sentence reduction motions.

The 7th Circuit decision was a simple one. Tequila Gunn moved for compassionate release, arguing that because her medical condition made her more susceptible to the coronavirus, her sentence should be reduced to time served. The district court denied the motion, because the BOP Director had not determined her condition to be an “extraordinary and compelling” reason for sentence reduction, as required by USSG § 1B1.13.

This was the conundrum: 18 USC § 3582(c)(1)(A) only permits sentence reductions “consistent with applicable policy statements issued by the Sentencing Commission,” and that statement requires that the “extraordinary and compelling” reasons have to be determined by the BOP and no one else. That requirement is still in the Guidelines, the Circuit said, “because the Sentencing Commission has not updated its policy statements to implement the First Step Act. (It can’t, because it lacks a quorum.)”

negativezero201123The 2nd Circuit solved that problem two months ago in Brooker, ruling that § 1B1.13 simply does not and cannot apply to a sentence reduction motion filed by someone other than the BOP Director. The statute says a sentence reduction must be “consistent with” all “applicable” policy statements. The 7th notes that any decision is “‘consistent with’ a nonexistent policy statement. ‘Consistent with’ differs from ‘authorized by’.” Therefore, judges are free to define for themselves what constitutes an “extraordinary and compelling” reason for reduction.

Meanwhile, the 6th Circuit issued a decision last Friday that is comprehensive in its instruction. Not only does the decision follow Brooker – holding that “the passage of the First Step Act rendered 1B1.13 ‘inapplicable’ to cases where an imprisoned person files a motion for compassionate release” – it provides a template for deciding such cases and outlines the detail expected of judges in sentence reduction decisions.

The 6th held that “compassionate release hearings are sentence-modification proceedings that must follow a Dillon-style test. At step one, a court must find whether “extraordinary and compelling reasons warrant” a sentence reduction… At step two, a court must find whether “such a reduction is consistent with applicable policy statements issued by the Sentencing Commission… At step three, § 3582(c)[(1)(A) instructs a court to consider any applicable § 3553(a) factors and determine whether, in its discretion, the reduction authorized by steps one and two is warranted in whole or in part under the particular circumstances of the case.”

denied190109Finally, the 6th made clear that judges ruling on sentence reduction motions must “write more extensively in § 3582(c)(1)(A) decisions where the record bears little indication that the district judge considered all the defendant’s evidence and arguments before granting or denying compassionate release,” the Circuit said. “Absent thorough record evidence of the judge’s factual decisions, district courts should not issue single-sentence or otherwise exceedingly slim compassionate release decisions or cite § 1B1.13 or the § 3553(a) factors without any analysis of their requirements,” the appellate court said. “But as long as the record as a whole demonstrates that the pertinent factors were taken into account by the district court… a district judge need not specifically articulate” its analysis of every single 3553(a) factor. Again, we look at what the judge stated about the 3553(a) factors in both the initial sentencing and the sentencing-modification proceedings when determining whether the judge satisfied her obligation to explain.”

The 7th Circuit Gunn decision is welcome for its concurrence with Brooker. The 6th Circuit Jones decision is even better, the most comprehensive opinion on application of the sentence reduction statute to date,

United States v. Jones, Case No 20-3701, 2020 US App. LEXIS 36620 (6th Cir. November 20, 2020)

United States v. Gunn, Case No 20-1959, 2020 US App. LEXIS 36612 (7th Cir. November 20, 2020)

– Thomas L. Root

2nd Circuit Declares “Open Season” for Inmates Seeking Compassionate Release – Update for September 28, 2020

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2ND CIRCUIT REINVENTS COMPASSIONATE RELEASE TO UNLEASH JUDGES’ DISCRETION

The government has been fighting 18 U.S.C. § 3582(c)(1)(A) compassionate release motions hammer and tong ever since inmates won the right to file such motions themselves in the First Step Act. (Before that, only the BOP could file such a compassionate release motion, and – unsurprisingly – the BOP had little interest in doing so, but that’s another story).

compassionaterelease190517A great example of government hard-heartedness: Reason magazine reported last week that the U.S. Attorney in Miami “unsuccessfully tried to argue that an 80-year-old inmate serving a life sentence for marijuana offenses shouldn’t be released because COVID-19 is just ‘one more way to perish in prison’.”

U.S. District Judge Donald Graham disagreed, granting compassionate release to an inmate – who was 27 years into his life sentence – and was wheelchair-bound by arthritis and heart disease. Reason cited the Miami case as an illustration of its point that while the Attorney General has urged the BOP to use compassionate release, home confinement, and other measures to get elderly and at-risk inmates out of federal prison, “the rollout of Barr’s directive has been maddeningly inconsistent…”

Reason quoted FAMM president Kevin Ring as saying, “Title 9 of the U.S. Attorney’s Manual governs criminal proceedings, and there is no provision there that requires you to be an asshole.”

compassionate200928Not that that has stopped the government. One recurring government argument against compassionate release is that U.S.S.G. § 1B1.13 only lists four reasons for compassionate release. If you don’t fit into reasons (1) through (3) – and hardly anyone does – you have to rely on the fourth, which says, “As determined by the Director of the Bureau of Prisons, there exists in the defendant’s case an extraordinary and compelling reason other than, or in combination with, the reasons described” in the other three reasons.” The government has argued that for any reason other than an inmate’s terminal illness (such as having a COVID risk factor), a court cannot grant compassionate release unless the BOP has itself made the motion. “A sizable minority” of courts have agreed.

Last week, the 2nd Circuit drove a stake through the heart of that argument. Jeremy Zullo sought compassionate release. The court denied him, ruling that his reasons – sentence unfairness, rehabilitation and government violation of his plea agreement – had not been found to be “extraordinary and compelling” under 18 U.S.C. § 3582 by the director of the BOP, and thus could not support a sentence reduction.

The Circuit reversed, holding that § 1B1.13 does not apply to post-First Step sentence reduction motions:

Application Note 4 says that ‘[a] reduction under this policy statement may be granted only upon motion by the Director of the Bureau of Prisons pursuant to 18 U.S.C. § 3582(c)(1)(A). And we conclude that after the First Step Act, this language must be read not as a description of the former statute’s requirements, but as defining the motions to which the policy statement applies. A sentence reduction brought about not ‘upon motion by the Director of the Bureau of Prisons”’ is not a reduction ‘under this policy statement.’ In other words, if a compassionate release motion is not brought by the BOP Director, Guideline 1B1.13 does not, by its own terms, apply to it. Because Guideline 1B1.13 is not “applicable” to compassionate release motions brought by defendants, Application Note 1(D) cannot constrain district courts’ discretion to consider whether any reasons are extraordinary and compelling.

compassion160124This holding is nothing short of astounding, sweeping away much of the compassionate release jurisprudence that has been written in the last 20 months. It will likely open compassionate release motions to people who have compelling arguments, but not claims that can be pigeonholed into the four categories in U.S.S.G. § 1B1.13.

Reason.com, Federal Prosecutors Argue COVID-19 Is Just ‘One More Way to Perish in Prison’ (Sept 25)

United States v. Brooker, Case No. 19-3218-CR, 2020 U.S. App. LEXIS 30605 (2d Cir. Sept 25, 2020)

– Thomas L. Root

Chance and Death at the BOP – Update for August 14, 2020

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COMPASSIONATE CRAPSHOOT

dice161221A BuzzFeed News review of more than 50 cases seeking an 18 USC § 3582(c)(1)(A) “compassionate release” sentence reduction by federal inmates shows that with little legal precedent to guide courts in deciding the flood of release motions during a pandemic, decisions about who gets out of prison and who does not can appear arbitrary. That’s probably because they are.

Prisoner advocates and defense lawyers say these cases can come down to the luck of the draw, with some judges proving to be more sympathetic than others. Judges are making medical assessments about how much of a threat COVID-19 poses to an individual inmate and then deciding how to balance that against the public safety risk of sending that person back into the community. And judges are reaching different conclusions about how to measure an inmate’s risk of exposure in state and federal prisons, which have seen some of the worst clusters of COVID-19 cases nationwide.

In some denials, judges relied on the fact that there weren’t any COVID-19 cases at a particular prison, but sometimes that wasn’t a barrier. Some judges insisted inmates have served at least half of their sentence. Nearly all judges required proof of a specific medical condition.

compassion160208

Not only are the standards being applied by district courts grossly inconsistent across the 673 active federal district judges. The BOP has added to the chaos as well. Twenty-five inmates have died in its custody this year while their requests for sentence reduction were under consideration, including 18 since March 1, around the time the coronavirus began spreading in U.S. communities. In the 50 July cases examined by Buzzfeed, the BOP opposed or failed to respond to 38 compassionate release requests that the courts denied. The Bureau also opposed 10 releases that courts eventually granted. Only in two cases did the agency agree to a release before a court intervened.

More than one inmate has died of COVID-19 after being denied compassionate release by the BOP. Perhaps the latest was Saferia Johnson, coldly described as “inmate” – along with her crime of conviction – by the BOP media machine (more interested in making the agency look good in a bad situation than in compassionately reporting the death of a mother of two young boys). Saferia died of the virus after the BOP denied her compassionate release (not that the BOP press release would note that). She was serving 46 months for a fairly plain-vanilla white-collar embezzlement offense at Coleman.

“Now I have to bury my daughter and figure out how to raise these kids,” Ms. Johnson’s mother, Tressa Clements, told the Miami Herald. Clements said she and other family members told Johnson’s boys — Kyrei, 7, and Josiah, 4 — Monday that their mother isn’t coming home.

“We told them that God wanted her as an angel with him,” she said. “But she will always be in their lives and be their guardian angel.”

fault200814Incidentally, the BOP death count inched up to 117 yesterday (112 in BOP custody, five federal inmates in private prisons) with virtually all of the deceased “memorialized” by BOP press releases.

Forget that de mortuis nil nisi bonum nonsense. The BOP is much more into speaking ill of the deceased, who after all was an inmate more than a person, and interring any good with his or her bones. The BOP press release obituary (written formulaically by some BOP press office minion), is intended to let the world know that (1) it really wasn’t the BOP’s fault, because the agency did everything it could to save the victim, (2) it really wasn’t the BOP’s fault, because the victim had all of these unidentified “long-term, pre-existing medical conditions,” and, of course, (3) the dead inmate was a scumbag who was serving a sentence for doing truly horrible things, so – in the scheme of things – the death is not that lamentable, except for the fact it may make the BOP look bad unfairly.

compassionaterelease190517It’s worthwhile that we are reminded, once in awhile, that the “inmate” described as “a 36-year-old female who was sentenced in the Middle District of Georgia to a 46-month sentence for Conspiracy to Steal and Embezzle Public Money and Aggravated Identity Theft” was a mom leaving behind a second-grader and a preschooler.

The None of us is as good as our finest moment, nor as bad as our worst. And few of us have a heart as cold as a BOP obituary.

Buzzfeed News, “I Had Hit The Lottery”: Inmates Desperate To Get Out Of Prisons Hit Hard By The Coronavirus Are Racing To Court (August 8, 2020)

Washington Post, Frail inmates could be sent home to prevent the spread of covid-19. Instead, some are dying in federal prisons. (August 3, 2020)

Miami Herald, Woman asked for compassionate release. The prison refused. She just died of COVID-19 (August 6, 2020)

– Thomas L. Root

Defendant Can’t “Bank” Jail Time Against Future Crime – Update for March 19, 2020

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BANKING ON IT

Ron Jackson was sentenced to 20 year for a crack cocaine offense back in 2003. After the First Step Act passed, he received a reduction in sentence to time served under the retroactive Fair Sentencing Act. Ron had served 177 months at the time.

getoutofjail200319Freedom after 15 years in prison wasn’t enough for Ron. His revised Guidelines under the Fair Sentencing Act were 120 months, and he wanted his revised sentence to be reduced to that level. He intended to “bank” the 57 months he had served in excess of 120 months against a future supervised release violation.

The district court refused to make a deposit into Ron’s “time served” bank account, holding that the sentencing factors of 18 USC § 3553(a) only supported a reduction to time served. “In particular,” the court said, “the need to protect the public and the need for deterrence dictate that a defendant not be allowed to “bank time,” which could allow him to commit further crimes without the fear of imprisonment.”

Ron appealed.

Last week, the 4th Circuit upheld the district court. Ron argued that the new sentence was procedurally unreasonable because the district court misapplied § 3553(a)’s protection-of-the-public and deterrence factors in considering banked time and substantively unreasonable because banked time is an improper sentencing factor. The Court, however, found that a district court is not forbidden from considering the impact of banked time when deciding whether to reduce a “sentence to time served or some lesser term.” Furthermore, “a defendant is not entitled to a sentence that would result in banked time,” the 4th said. “Even when a defendant’s conviction itself is vacated, there are situations where the defendant will not receive credit for the time during which he was incorrectly incarcerated.”

piggybankjailtime200319The appeals court was concerned that letting Ron “bank” his time would only encourage him to later “spend” the banked time by committing a further crime for which he had already paid. The Court of Appeals said, “the availability of banked time to offset a revocation sentence” is very relevant to the factor of deterring future offenses and protecting the public. “It is reasonable,” the Circuit said, “for a district court to think that the prospect of returning to prison under a revocation sentence would provide a measure of deterrence against future crimes of the defendant and thereby provide a measure of protection to the public.”

United States v. Jackson, 2020 U.S. App. LEXIS 8128 (4th Cir. Mar. 10, 2020)

– Thomas L. Root

Unjust Sentence is an “Extraordinary and Compelling” Reason for Sentence Reduction, District Court Says – Update for November 18, 2019

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DISTRICT COURT GRANTS SENTENCE REDUCTION BECAUSE OF “INJUSTICE” OF ORIGINAL SENTENCE

Since the First Step Act passed 11 months ago, a number of observers (me included) have predicted that changes in the 18 USC § 3582(c)(1)(A)(i) sentence reduction procedures that let a defendant petition the district court directly if the Bureau of Prisons failed to do so could be the most consequential provision in the new law.

Sentencestack170404Last week, a district court in Nebraska granted a sentence reduction filed by a defendant whose whopping 895-month sentence for drug trafficking and three stacked 18 USC § 924(c) counts. As you recall,  § 924(c) conviction adds a consecutive sentence of at least five years for using or carrying a gun during a drug or violent crime, increasing to a minimum 25 years for a subsequent offense. Due to poor draftsmanship, the statute has been applied so that if a defendant sold pot while carrying a gun on Monday, did it again on Tuesday and again on Wednesday, and then was caught, he or she would face maybe 41 months or so for the pot sales, but a mandatory additional time of five year, 25 years and 25 years, for a whopping 58 years plus in prison. The First Step Act clarified the statute, so that the 25 year subsequent 924(c) offense had to be committed after conviction for a prior offense.

However, to appease the Sen. Tom Cottons (R-Arkansas) of the world, the First Step change was not retroactive. That left a lot of people stranded with unconscionable sentences. People like Jerry Urkevich.

The government opposed Jerry’s sentence reduction motion, arguing that just because he could not have gotten more than 368 months after First Step passed does not make his sentence reduction motion argument “extraordinary and compelling” (as required by the statute). Furthermore, the government argued, even if the defendant’s sentence were cut, he would still have about half of it to serve, making his motion “premature.”

extraordinary191118The court rejected the government’s arguments, noting that the list of “extraordinary and compelling reasons” in Guideline 1B1.13 Note 1 that justify a sentence reduction is not exclusive. Instead, there is a catch-all provision providing that there can be an “extraordinary and compelling reason” other than medical, age or family. That, the judge said, allows a court to consider § 3553(a) factors, as well as criteria in the Sentencing Commission’s policy statement.

Although the Sentencing Commission has not amended 1B1.13 since First Step passed, the court said it “infers that the Commission would apply the same criteria, including the catch-all provision… and that this Court may use Application Note 1(D) as a basis for finding extraordinary and compelling reasons to reduce a sentence.” Here, the court said, a reduction in sentence was warranted by “the injustice of facing a term of incarceration forty years longer than Congress now deems warranted for the crimes committed.”

The court also rejected the government’s strange and unsupported argument that a sentence reduction cannot be granted unless it results in immediate release. “If this Court reduces the defendant’s sentences on [two 924(c) counts] to 60 months each, consecutive,” the judge wrote, “he will not be eligible for immediate release. His sentence would total 368 months, and he would have served somewhat more than half that sentence. Nonetheless, the Court does not consider the Motion premature. A reduction in the sentence at this juncture will help the defendant and the Bureau of Prisons plan for his ultimate release from custody and may assist him in his pending efforts to seek clemency from the Executive Branch.”

In his Sentencing Law and Policy blog, Ohio State University law professor Doug Berman wrote, “I have made much of a key provision of the First Step Act which now allows federal courts to directly reduce sentences under the (so-called compassionate release) statutory provisions of 18 USC § 3582(c)(1)(A) without awaiting a motion by the Bureau of Prisons. I see this provision as such a big deal because I think, 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.)”

While not precisely a matter of § 3582(c) sentence reduction, the Washington Post reported last week that hundreds of relatives of murder victims, current and former law enforcement officials and former judges have signed letters urging the Trump administration to call off plans to resume federal executions next month.

death170602The letters, signed by current and former officials across the justice system as well as 175 relatives of murder victims, plead with President Trump and Attorney General William P. Barr to stop the executions, which Barr announced last summer that the Trump administration would resume on Dec. 9. The Justice Dept. said five executions were scheduled in the next two months and that more would follow.

Victims’ relatives — the largest single group to sign the letters — denounced the death penalty process as wasteful and something that only extends their grieving. “We want a justice system that holds people who commit violence accountable, reduces crime, provides healing, and is responsive to the needs of survivors,” they write. “On all these measures, the death penalty fails.”

United States v. Urkevich, 2019 U.S. Dist. LEXIS 197408 (D.Neb. Nov. 14, 2019)

Sentencing Law and Policy, Another District Court finds statutory sentence reform among “extraordinary and compelling reasons” for reducing sentence by 40 years under 18 U.S.C. § 3582(c)(1)(A) (Nov. 16)

Washington Post, Hundreds of victims’ relatives, ex-officials ask Trump administration to halt federal executions (Nov. 12)

– Thomas L. Root

Compassionate Release Gains Legs – Update for June 26, 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.

SHOWING COMPASSION

Last week was a good one for compassionate release, the shorthand way of referring to “extraordinary and compelling” reasons for a sentence reduction under 18 USC 3582(c)(1).

compassion160208FAMM, the Washington Lawyers’ Committee, and the National Association of Criminal Defense Lawyers announced the launch of the “Compassionate Release Clearinghouse,” a collaborative pro bono effort among the organizations designed to match qualified prisoners with legal counsel should they need to fight a compassionate release denial or unanswered request in court.

“People who can barely make it out of their beds in the morning should not have to go into court alone against the largest law firm in the nation,” said Kevin Ring, president of FAMM. “Congress was clear that it wanted fundamental changes in compassionate release, yet we’ve seen prosecutors continue to fight requests from clearly deserving people, including individuals with terminal illnesses.”

The Clearinghouse will recruit, train, and provide resources to participating lawyers. It has already matched pro bono attorneys with prisoners in more than 70 cases. The Clearinghouse is actively recruiting additional attorneys and law firms to join in the effort.

Regular readers know that I have been calling the First Step Act’s changes to 3582(c)(1) a ‘killer’ provision, because while Congress may have been focused on getting terminally ill inmates home, it wrote the amendment much more broadly than that. The momentum to use the sentence reduction subsection to its full potential is increasing.

Sentencestack170404Georgetown law professor Shon Hopwood last week published an article at Prison Professors arguing that “there is a viable argument for why federal district court judges can use the compassionate release statute, as amended by the First Step Act, as a second look provision to reduce a sentence for people in federal prison if “extraordinary and compelling reasons” are present.” Shon has written a law review article and a sample brief he will be using to challenge a 213-year federal sentence consisting of stacked 18 US 924 convictions. Both discuss the reasons “why federal judges can and should give sentence reductions in cases where people in federal prison have a demonstrated record of rehabilitation in addition to compelling reasons why they were sentenced too harshly.”

NACDL, FAMM, Washington Lawyers Committee, NACDL Launch Compassionate Release Clearinghouse (June 19)

Prison Professors, A Second Look at a Second Chance: Seeking a Sentence Reduction under the Compassionate Release Statute, 18 U.S.C. § 3582(c)(1)(A), as Amended by the First Step Act (June 18)

– Thomas L. Root

If a Court Screws It Up Once, Must It Do So Twice? – Update for May 2, 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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ONE SWALLOW DOES NOT A SUMMER MAKE

swallow180502When Aristotle observed that sighting one returning swallow did not mean that summer was here, was talking about how a single event – often an aberration – does not constitute a trend. So it is in law.

Appeals courts are staffed with humans, and humans make mistakes. Eight years ago, the 6th Circuit held that an inmate whose was eligible for a sentence reduction under 18 U.S.C. 3582(c)(2) but whose judge decided not to grant some or all of the reduction could not appeal. In United States v. Bowers, the Circuit held that the appeal statute, 18 USC 3742, tightly limited its jurisdiction to entertain an appeal of the district court’s denial of a 3582(c)(2) sentence-reduction motion. It lacked jurisdiction to review a sentence reduction decision simply because the defendant thought it was unreasonable.

When Bill Reid asked his judge to apply the 2014 2-level drug reduction to his sentence, the district court refused, citing two disciplinary infractions Bill had gotten during his prison stint for possession of drugs and tobacco. The judge said the two disciplinary reports proved Bill had not “gained respect for the law.”

Bill appealed, argued the district court had not provided a “reasoned basis” for denial, and that it “misapplied the governing statutory criteria” to the facts of his case. He cited two cases the Circuit had decided after the 2010 Bowers decision in which it had considered the identical arguments.

oneswallow180502Yeah, the Circuit admitted last week, we did do that. But “those decisions are not faithful to Bowers. At their core, Reid’s arguments are challenges to the procedural and substantive reasonableness of the outcome of his Sec. 3582(c)(2) sentence-reduction proceeding… But Bowers explicitly held that we do not have jurisdiction under Sec. 3742(a)(1) to consider such arguments in appeals from the denial of sentence-reduction motions.”

“We are obliged,” the Court held, “to follow the explicit holding of Bowers, later cases notwithstanding… And pursuant to Bowers, we do not possess jurisdiction to entertain Reid’s Booker unreasonableness arguments.”

United States v. Reid, Case No. 17-5451 (6th Cir. Apr. 23, 2018)

– Thomas L. Root

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