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Guidelines Criminal History Changes To Benefit Some – Update for April 21, 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.

EXPLAINER: CRIMINAL HISTORY RETROACTIVITY

explain230420I don’t usually write this kind of thing, but I am getting a lot of questions about the possibly retroactive changes in the criminal history Guidelines.

Earlier this month, the United States Sentencing Commission proposed two Sentencing Guidelines changes benefitting people at both ends of the criminal history spectrum.  Because these changes might become retroactive, many prisoners wonder what might be in it for them.  So here goes:

A sentencing range for a Federal defendant is determined on a table found in Section 5 of the Sentencing Guidelines. A defendant’s offense level – specific to the offense of conviction and usually fortified with several enhancements for leadership, weapon, sophisticated planning and the like – is calculated.  Then, the court takes a dive into the defendant’s criminal history, assigning points to prior offenses depending on severity, status at the time of the offense, and the like.

Those two rankings are applied to the Sentencing Table, with the Total Offense Level being the ordinant and the Criminal History Category (from I to VI) being the abscissa.

zeropoints230420When Zero is Hero: Anyone with zero or one criminal history points falls in Criminal History I. But believing someone who absolutely no prior criminal history points is a special breed of virgin, the Commission has proposed USSG § 4C1.1. This Guideline would provide a 2-level decrease in the Total Offense Level for people with zero points.

Caution: the draft has more holes than a prairie dog village. The two-level decrease would only apply when the defendant did

(1) not receive any criminal history points;

(2) not receive a terrorism adjustment under 3A1.4;

(3) not use violence or threats of violence in the offense;

(4) not commit an offense resulting in death or serious bodily injury, or a sex offense;

(5) not personally cause substantial financial hardship;

(6) not possess of a gun or other dangerous weapon, or get someone else to do so);

(7) not commit an offense involving individual rights, a hate crime, or serious human rights offense); or

(8) not receive a USSG § 3B1.1 role adjustment and was not engaged in a 21 USC § 848 continuing criminal enterprise.

As an example, a defendant with no criminal history points who was convicted of selling a pound of cocaine might have a Total Offense Level of 22.  As a Criminal History Category I, she would have an advisory sentencing range of 41-51 months.  But if she had been a cheerleader and churchgoer before her unfortunate descent into drug-dealing – with zero prior criminal history points – her Total Offense Level would fall by two.  Her sentencing range would then be 33-41 months, not exactly probation, but eight months less is eight months less.

lesson230420Status Seekers:  The status point change is easier. Currently, § 4A1.1(d) of the Guidelines currently adds two criminal history points “if the defendant committed the instant offense while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status.”

Makes sense. Prison is supposed to teach inmates a lesson, which is (among othert things) ‘don’t break the law‘. Hitting recently-released people with extra status points because they didn’t read the memo (the one that said ‘go forth and break the law no more’). Nevertheless, the Commission has found that its research showed the status points have no effect

Now, the Guidelines will only add a single point if a defendant committed the instant offense while under any criminal justice sentence – including probation, parole, supervised release, imprisonment, work release, or escape status – and already has seven criminal history points before the status point is added.

retro160110Going Retro: The USSC has sought comment on whether it should make the key parts of its new criminal history amendment “available for retroactive application.” If it becomes retroactive and Congress does not veto the change, people who were “crim zeros” or who had status points could file for benefit probably starting in early 2024.

Just note that unless application of the Guidelines change reduces a defendant;s Guidelines sentencing range, he or she can get no benefit from it. Read up on Guideline § 1B1.10 for how this works.

USSC, Amendments to the Sentencing Guidelines (Preliminary) (April 5, 2023)

Sentencing Law and Policy, Highlighting US Sentencing Commission’s significant amendments to federal guidelines’ criminal history rules (April 9, 2023)

– Thomas L. Root

President’s Focus on Immigration Reflected in Increased Federal Prosecutions – Update for September 23, 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.

TRUMP’S FOCUS ON IMMIGRANTS REFLECTED IN NEW SENTENCE DATA

The US Sentencing Commission’s 3rd Quarter Preliminary Fiscal Year 2019 Data, released last week, shows that the Dept. of Justice has responded to President Trump’s preoccupation with illegal immigrants. Immigration cases increased from 34.7% to 37.7% (an increase of almost 9%, for the math-challenged), but drug prosecutions fell 1.2% and fraud cases fell 0.8%. Immigration offenses were only 30.5% of total prosecutions in 2017, meaning that in the last two years, the use of federal criminal law resources to prosecute (and imprison) illegal immigrants has increased by over 22%.

Piechart190923If DOJ’s pace of prosecutions in 2019 continues through the end of the fiscal year next week, federal criminal cases will have increased by about 4.3% over last year. Of course, this assumes that the rate of prosecutions remains the same throughout the year, but if the assumption holds, it is clear that reduction of mass incarceration is a Congressional concern, and not so much one for the Executive Branch.

There is a glimmer of good news, however. The average federal sentence continues to fall, from 44 months in FY 2018 to 43 months in the first three quarters of FY2019. In 2017, half of all defendants received sentences of under 21 months and half received sentences of more than 21 months. So far in FY 2019, half of all defendants got sentences under 18 months, and half got over.

U.S. Sentencing Commission, Quarterly Data Report (Sept. 17, 2019)

– Thomas L. Root

If You Want to Go Home, Die Faster – Update for May 16, 2019

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

CAN’T TEACH AN OLD DOG NEW TRICKS

die190513The Bureau of Prisons has been notorious for refusing to make sentence reduction recommendations to courts because dying inmates seemed to be in pretty good health, and surely able to finish their sentences, no matter what doctors might say. The First Step Act tried to remedy the BOP’s convenient myopia by letting inmates file for sentence reductions with district courts if the BOP refused to do so for them.

You’ll be glad to know that the government remains just as oblivious to medical reality and insensitive to impending death as ever. When Steve Brittner’s BOP doc told him that his Stage IV brain tumor was bad enough to withdraw further treatment and sign him up for hospice care, Steve filed for an 18 USC § 3582(c) sentence reduction so he could die at home.

The government opposed the reduction, arguing Steve did not have a terminal illness within the meaning of the guidelines because his medical records “do not indicate that the tumor has metastasized.” Plus, the government contended, Steve could not show “extraordinary and compelling” circumstances because his medical records did not indicate an inability to care for himself.

Last week, Steve’s district court swept aside the government’s opposition and said Steve could die at home. First, the court said, the Guidelines on sentence reduction do not require that Steve show that his tumor has metastasized for his condition to be terminal. Instead, the guidelines provide a number of examples of medical conditions that would meet the standard for a “terminal illness.”’ A metastatic solid-tumor cancer” is just example.

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Second, to show extraordinary and compelling circumstances, an inmate does not have to show both a terminal illness and inability to care for oneself. “The Government reads a conjunctive requirement into the guideline comment where none occurs,” the district court observed. The Guidelines provide that “extraordinary and compelling” reasons exist “under any of the circumstances set forth below,” of which a terminal condition is one and inability to care for oneself is another.”

“Of importance,” the court wrote, “the treatment options available to Brittner have been exhausted. According to the last treatment note available to the Court, dated November 15, 2018… the plan… was to hold, or discontinue further therapy, and it was recommended to Brittner that he consider comfort measures, specifically hospice, which his treating oncologist “considered very reasonable due to worsening performance status… It is clear from the nature of his disease and his worsening condition as documented above, that Brittner’s prognosis is grim, his disease is terminal, and the length of his life can be measured most likely in weeks, as opposed to months.”

United States v. Brittner, 2019 U.S. Dist. LEXIS 73653 (D.Mont. May 01, 2019)

Reason.com, A Terminally Ill, Wheelchair-Bound Inmate Applied for Compassionate Release. The Justice Department Argued He Wasn’t Dying Fast Enough to Qualify (May 3)

– Thomas L. Root

Keeping Count – Update for May 15, 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.

SENTENCING BY THE NUMBERS

The Sentencing Commission Fiscal Year 2018 Annual Report and Sourcebook came out last week. Besides the obvious (which the Annual Report sort of soft-pedaled, that the Commission lacks a quorum, and thus cannot perform its primary duties), the release contains some interesting numbers taken from 2018’s 69,400 district court sentencings. (All years are fiscal years, running from Oct. 1 to Sept. 30):

• The Feds are busier this year than last. The sentencing caseload increased by 3.7% from 2017, the first increase in caseload since 2011.

numbers180327• It’s not what you did, it’s where you’re from, that matters. Immigration crimes replaced drug offenses as the largest single group of offenses. Immigration cases increased from 30.5% in 2017 to 34.4% in 2018, while drug and firearms prosecutions fell.

• Meth is the drug of choice. Methamphetamine offenses, the most common drug type in the federal system, continued to rise (from 30.8% of all drug offenses in 2016 and 34.6% in 2017 to 39.8% in 2018).

• The Guidelines still rule. 75% of federal offenders were sentenced under the Guidelines Manual in 2018. Of those, 51.0% were sentenced within the defendants’ Guidelines sentencing range, an increase of 1.9 points from 2017. The number of defendants getting downward departures for helping the government remained at 10.1%, the same level as 2017.

U.S. Sentencing Commission, FY 2018 Sourcebook (May 8, 2019)

– Thomas L. Root

If Not For Supervised Release, What’s Forever For? – Update for May 14, 2019

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FOREVER IS A LONG TIME

41475-Forever-Is-A-Long-TimeKevin Carson was convicted of having hundreds of kiddie porn images on his computers and having sent some such images to young girls. He got a below Guidelines sentence of 240 months and lifetime supervised release, with conditions prohibiting him from using Internet devices without probation office approval and avoiding from any social media.

Kevin appealed the lifetime supervised release term and the computer and social media restrictions. Because his trial lawyer did not object to the supervised release or the conditions (and for that matter, did not even bother filing a sentencing memorandum, something the appellate court noted with disdain), Kevin had to show that the mistakes were plain error that affected his substantial rights (under Fed.R.Crim.P. 52(b)).

computer190514Last week, the 8th Circuit upheld the lifetime supervised release term and the conditions. Kevin complained the trial court did not consider sentencing factors in giving him lifetime supervised release, but the Circuit said a sentencing court’s explanation “may be relatively brief if the district court rests its decision on the Sentencing Commission’s reasoning and decides simply to apply the Guidelines to a particular case.” Here, a Guidelines policy statement provided that if the offense of conviction is a sex offense, “the statutory maximum term of supervised release is recommended.” Thus, Kevin’s lifetime supervised release term “was a straightforward application of this policy.”

As for the computer restrictions, the Court ruled that as long as Kevin  could use computers and social media with Probation Office approval – rather than an outright ban – the condition is not too great a restriction on his freedom. Kevin argued that the social media restriction was unconstitutional under Packingham v North Carolina, but the Circuit said Packingham “invalidated only a post-custodial restriction and expressed concern that the statute applied even to persons who have already served their sentence.” Because Kevin will still be serving a sentence on supervised release for as long as he is able to draw breath, the Court held, he will never finish serving his sentence, and thus, Packingham does not make the district court’s restriction on social media during supervised release plain error.

forever190514The decision is noteworthy for Judge Kelly’s incisive dissent, in which he complains that the district court left the 8th Circuit with no explanation for why it varied downward one-third on the sentence but maxed out the supervised release. The need for individual tailoring of supervised release conditions to offenders is substantial, the Judge said, and the advent of IoT devices like thermostats and doorbells, and Amazon.com, could leave Kevin violating supervised release by turning up the heat.

The Judge underscored the problem with sweeping, blunt supervised release conditions like these: Kevin “was thirty-three at the time of his arrest, and his lifetime term of supervised release could very well last decades. We can only imagine the universe of internet-reliant electronic devices that will pervade everyday life by then. The length and conditions of his supervised release may well be justified, but such punishment deserves, at minimum, some reasoned explanation from the sentencing court.”

United States v. Carson, 2019 U.S. App. LEXIS 14044 (8th Cir. May 10, 2019)

– Thomas L. Root

The Year of No Guidelines – Update for May 7, 2019

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WHITHER GUIDELINES?

Guidelines red text and magnify glassThe first of May was both International Workers Day (for you Marxists) and Law Day (if you’re a lawyer). For the past 31 years, it has also customarily brought a package of Sentencing Guidelines amendments, each of which is to become effective on the following November 1st (six months hence) unless Congress objects, pursuant to 28 USC 994(p).

Not this year. For the fourth time in 31 years, the Commission will adopt no Guideline amendments to send to Congress. This has only happened before in  1996 and 1999, and more recently in 2017.

The problem is one of politics. The Sentencing Commission was established by Congress in the Sentencing Reform Act of 1984 as a permanent, independent agency within the judicial branch. The seven Commission members are appointed by the President and confirmed by the Senate for six-year terms. Commission members may be reappointed to one additional term, also with the advice and consent of the Senate. Three of the members must be federal judges, and no more than four may belong to the same political party. The Attorney General or his designee and the chair of the United States Parole Commission sit as non-voting members of the Commission.

No matter how important the Commission may be to federal inmates, Washington sees it as a political backwater. Already operating with only five members in 2017, the Commission’s voting membership fell further last year to four. Then, at the end of 2018, the terms of Judge William Pryor of the 11th Circuit and New York University law professor Rachel Barkow expired.

emptyroom190507For the past five months, the Commission has had only two voting members. Two more must be appointed and approved by the Senate just to have the minimum number needed for a meeting. Former Sentencing Commission chairwoman Patti Saris, who is Chief Judge of the U.S. District Court for the District of Massachusetts, complained in a Law360.com article last week, “Today, the United States Sentencing Commission sits without a confirmed chair, or even a quorum of members. This severely impairs the commission’s ability to study further reforms. For example, with only two current commissioners, the commission is unable to pass amendments to make the sentencing guidelines consistent with the statutory provision expanding the “safety valve.” While the research and training activities of the commission continue, the commission needs a quorum.”

Meanwhile, the amendment cycle for 2018 has come and gone without action for the second time in three years. Thank heaven that the Guidelines, after 30 years of development, are perfect in every regard (said no one ever).

Law360.com, The First Step Act Is A Major Step For Sentencing Reform (Apr. 28)

– Thomas L. Root

Too Little, Too Late for a Lot of Defendants – Update for September 6, 2018

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AT LEAST THEY’RE TALKING ABOUT IT…

hammer160509Hearings on the nomination of Judge Brett Kavanaugh to serve on the Supreme Court opened this past Tuesday and are to conclude tomorrow, and debate (at least among scholars, rather than the rabble in the hearing room) has already ramped up on the Judge’s dislike of the acquitted conduct rules in the Sentencing Guidelines.

Under the Guidelines, a defendant convicted on one count but acquitted on other counts can be sentenced as if he or she was guilty on everything, as long as the court finds it more likely than not that the defendant did what the jury acquitted him or her on.

Kavanaugh, a generally conservative judge, wrote separately in a 2015 appeal decision to ask, if a defendant has a right to “have a jury find beyond a reasonable doubt the facts that make him guilty and received, for example, a five-year sentence, why doesn’t he have a right to have a jury find beyond a reasonable doubt the facts that increase that five-year sentence to, say, a 20-year sentence?”

Or, as Blakely v. Washington put it, “[A]s the law now stands, prosecutors can brush off the jury’s judgment by persuading judges to use the very same facts the jury rejected at trial to multiply the duration of a defendant’s loss of liberty threefold. In that regime, the jury is largely “relegated to making a determination that the defendant at some point did something wrong, a mere preliminary to a judicial inquisition into the facts of the crime the State actually seeks to punish” at sentencing.”

hammer171221Writing at SCOTUSBlog last week, Sen. Orrin Hatch (R-Utah), senior senator on the Judiciary Committee, said, “In the past, I have been supportive of considering all relevant conduct at sentencing, including acquitted conduct. But Kavanaugh and others have convinced me that this practice must end — as a matter of fundamental fairness if not of constitutional law. I plan to soon introduce the Acquitted Conduct Sentencing Reform Act, which will stop judges from punishing defendants for crimes for which a jury found them “not guilty.” The contours of civilization require fairness in our criminal justice system, and the Constitution demands that American men and women hold prosecutors and judges accountable. The role of the jury is central to the Constitution’s protection of individual rights, and it is time for Congress to restore power to the people.”

SCOTUSBlog.com, Judge Kavanaugh’s fight for stronger jury rights (Aug. 31, 2018)

– Thomas L. Root

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Keep Those Marks… uh, Inmates Stirred Up – Update for December 1, 2017

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

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WE ARE CURIOUS AS TO WHY THEY’RE CURIOUS

In the post-conviction world, a number of legal and paralegal purveyors offer inmates assistance (for a fee, of course) in filing habeas corpus petitions, motions to reduce sentences, and other appropriate (and sometimes, not-so-appropriate) means of cutting prison time. We don’t have trouble with shameless commerce: we provide some of those services, too, and we don’t do it for free.

Nevertheless, prisoners are an extraordinarily vulnerable class of consumers. The desire for freedom is a fairly powerful urge, and many inmates are less-than-educated in the ways of the criminal justice system. Anyone mongering hope finds it fairly easy to shake money out of the families of inmates wanting to get out early.

puzzled171201For that reason, people offering post-conviction help to inmates should have a strong moral compass as well as a sense of caution when it comes to suggesting that a change in the law/ regulations/guidelines/ whatever is about to make everything better. Which brings us to today’s puzzler:

Another outfit which shall remain nameless (we’ll call it “XYZ Paralegal”) sent out a inmate-targeted email last week that included this observation about the U.S. Sentencing Commission:

“We were also curious why November 6 came and went without the new First Offender proposal being published in the Federal Register, which must be done to start the clock for making it effective for potential sentence reduction.”

This comment left us curious, too, curious as to what part of the Sentencing Commission’s rulemaking process the folks at XYZ don’t get. Remember that the so-called first-offender proposal is a contemplated change in the criminal history section of the Guidelines that would award extra credit to first-time people who had no prior criminal history. Currently, the best criminal history category – Criminal History I – is reserved for people with zero or one criminal history point. But someone can fall into Crim History I with a prior misdemeanor conviction, or even a sheaf of prior felonies if they are somewhere more than 15 years old. The first-offender proposal would award extra credit, in the form of a reduction in Guidelines score, for virgins, people with utterly clean records.

virgin171201The Sentencing Commission released an 85-page package of proposed amendments, which included the first-offender proposal, last August, setting a public comment period that ended Oct. 10, and a reply comment period ending Nov. 6. In the proposal, the USSC asked for suggestions on a couple of alternatives: first, should the benefit be a one-level reduction or two-? Second, should the credit go to anyone with a zero criminal history score (which would benefit people who had convictions that were too old to be counted) or should it be reserved only for the purest of the pure, people with no prior convictions inter lifetimes?

So what would have made the XYZ people think that (1) all of the comments and reply comments would be digested as of midnight on November 6, and (2) the Commission would have adopted a first-offender proposal from the various options it floated, and (3) the adopted proposal would already be in the Federal Register. At minimum, this supposition exhibits a faith in the efficiency of government that anyone who’s ever dealt with Uncle Sam has long since lost.

The USSC has never suggested that the amendment proposals it released last August were intended to be adopted at any time before November 1 of this year. Indeed, anyone who is familiar with how the USSC has run the annual amendment cycle for the past 30 years knows how it works. The Commission plans to assemble a final package of amendments for adoption in April 2018. By law, those amendments will only become effective after a 6-month review period by Congress, or November 1, 2018.

There is an alternative explanation for the XYZ folks’ email. They note that XYZ is “continu[ing] to review the cases of people who appear to be eligible for relief under that proposal.” This may be why they are implying that an amendment not slated for effectiveness (if ever) for almost a year is on the cusp of being announced.

Inmates having their cases reviewed for “eligibility” under the first-offender proposal (and their families, who are paying the bill) should be forewarned: (1) No one yet knows whether there will even be a first-offender proposal; (2) If one is ever adopted, no one yet knows what the requirements will be for a Guidelines reduction, or whether the reduction will be 1-level or 2-level; and (3) Most important, the first-offender proposal will not apply to people who are already sentenced as of the day it goes into effect, unless the USSC has a separate proceeding to decide whether the first-offender proposal will be retroactive.

stars171201If all the stars align and if the first-offender proposal is adopted, and if it applies to an inmate’s case, and if it is retroactive, we never-theless expect that no one already convicted would be eligible to seek relief before about March or April of 2019 (based on what happened in the 2-level drug quantity reductions in 2007, 2011 and 2014). That is a guess, but it is one that – unlike suggesting that relief is just around the corner and you had better get your case reviewed now – makes sense.

U.S. Sentencing Commission, Proposed Amendments to the Sentencing Guidelines, 82 FR 40651 (Aug. 24, 2017)

– Thomas L. Root

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8th Circuit Says Minnesota Riots Aren’t Necessarily Violent – Update for July 27, 2017

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YOU’RE A RIOT… BUT DON’T KICK MY DOG

Ryan McMillan was a felon with a gun, conduct that violates 18 USC 922(g)(1). The district court sentenced him based in part on Ryan’s prior Minnesota conviction for third degree riot. Under Sec. 2K2.1(a)(2) of the federal sentencing guidelines, that crime of violence jacked up his sentencing range to 92-115 months.

riot170727Rioting sounds to just about anyone to be a crime of violence. The district court thought so, determining that the riot conviction qualified because it had “as an element the use, attempted use, or threatened use of physical force against the person of another.” But Ryan did not think so, and earlier this week, the 8th Circuit agreed with Ryan.

kick170727Minn. Stat. Sec. 609.71, subd. 3 stated that “when three or more persons assembled disturb the public peace by an intentional act or threat of unlawful force or violence to person or property, each participant therein is guilty of riot third degree… “ A prior conviction like this one only qualifies as a crime of violence under the force clause if it “has as an element the use, attempted use, or threatened use of physical force against the person of another.”

Ever since Mathis v. United States, the courts have started their analysis of potential crimes of violence by determining whether the “categorical” or “modified categorical approach” can be used to parse the statute. If a statute provides that only one set of elements must be present to prove a violation, the courts use a “categorical” approach, asking whether the statute can theoretically be violated without employing force or the threat of force against a person. If, however, the statute has alternative elements – sort of like a Chinese restaurant menu – then it is “divisible,” and the court may look at what the defendant actually did to violate the state law, and ask itself whether the way the defendant violated the statute made it a crime of violence.

menu170727Mathis provided a whole new set of rules for a court to use in figuring out whether a statute is divisible. First, it figures out which terms in the statute set out the elements, as opposed to the means of committing the crime. Say, for example, a statute prohibits one from “purposely insulting, taunting or kicking a person or his dog, and if anyone insults, he is guilty of a third-degree felony, if he taunts, a second-degree felony, and if his kicks, a first-degree felony.” Our hypothetical jury instructions require that the jury unanimously find whether the offensive conduct was insulting, or taunting, or kicking. But because the degree of felony (and thus punishment) is the same whether the victim is a person or a dog, the jury does not have unanimously find that the injured party was Waldo as opposed to Fido.

Had Ryan’s prior offense been a violation of our hypothetical, the federal district court could use the modified categorical approach to find out from state court records whether he had been convicted of insulting or taunting (neither one violent conduct), as opposed to kicking (definitely violent conduct). However, because whether the victim is a human or canine is a single element (just alternative means of fulfilling that element, as opposed to kicking a cat or a trash can), the district court could not look at whether Ryan had used his size 12 on a dog versus on its owner. Any way you slice it, because the hypothetical offense could be committed without using force against a person, it would not be a crime of violence (as unfair to Rover as that may seem).

splithair170727In Ryan’s case, the Circuit noted that “the text of Minnesota’s third-degree riot statute does not provide helpful guidance as to whether the phrase ‘person or property’ lists alternative means or alternative elements, because there is a uniform punishment for commission of third degree riot. Two Minnesota appellate courts have held that to convict a defendant of a riot offense, the state only must show that the defendant was one of ‘three or more persons assembled’ and the assembly ‘disturb[ed] the public peace by an intentional act or threat of unlawful force or violence to person or property.'” The appellate panel said, “That statement of the second element of a riot offense suggests that a jury is not required to agree unanimously on whether a person or property was affected by the crime and therefore indicates that they are alternative means, not elements.”

The 8th also reviewed Minnesota’s model jury instructions, which direct that the phrase “person or property” is a list of alternative means, not elements. The model instructions list the same two elements of third degree riot, not separating “person” and “property.”

The government argued that because the disjunctive “or” separates “person” from “property,” those two terms are necessarily elements and not means. The Circuit disagreed, noting that “Mathis held that ‘or’ is not determinative one way or another. Indeed, we have concluded elsewhere that a list of alternatives was a list of means even though the statute used the word ‘or’ between the alternatives.”

Ryan will get resentenced with a substantially lower sentencing range.

United States v. McMillan, Case No. 16-2436 (8th Cir., July 24, 2017)

– Thomas L. Root

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Two Outta Three Ain’t Bad – Update for May 11, 2017

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2014 GUIDELINE CHANGE CUT 30,000 DRUG SENTENCES

Back in the good old days, when the Executive Branch pretended to care about rational federal sentencing policies (and we’re not saying that the prior inhabitant of the White House really did, other than to the extent he could use sentence reform to burnish his legacy) the U.S. Sentencing Commission adopted an amendment to the federal sentencing guidelines that reduced by two the offense levels assigned to drug quantities. The 2014 change reduced defendant’s sentencing ranges accordingly.

USSC170511Unlike most changes in the Guidelines, the Sentencing Commission made the 2-level reduction retroactive to people already sentenced. Retroactivity under the Guidelines is not an automatic thing: a defendant must petition his or her sentencing court under 18 USC 3582(c)(2) for a sentence reduction pursuant to the retroactive Guideline. If eligible, an inmate still must convince the court that a reduction of his or her sentence ought to be awarded. Sentencing courts have wide discretion as to what to do with a sentence reduction motion, and district court decisions are nearly bulletproof.

The Sentencing Commission released a report Tuesday on the fallout from the 2014 2-level reduction. Slightly more than 46,000 people applied for the reduction, of whom a few more than 30,000 receive sentence cuts, for a 66% grant rate. Like Meatloaf said, “Two outta three ain’t bad.”

funwithnumbers170511Actually the odds for defendants were even better than that: 24% of the people who applied were not even eligible for the reduction, for reasons ranging from not having been sentenced under the drug guidelines to being locked in place by statutory mandatory minimum sentence. Only 8% of the 46,000 were denied on the merits (although due to sloppy district court records, the number could have been as high as 13%).

sentence170511The average sentence was cut from 144 to 119 months, a 17% reduction. Of those receiving sentence reductions, 32% were convicted for methamphetamines, 28% for powder cocaine, 20% for crack, 9% for pot and 7% for heroin. The racial and ethnic distribution was 30% white, 33% black, and 41% Hispanic. Curiously enough, the defendant’s criminal history seemed to have no effect on likelihood of receiving a sentence cut, with novices and pros alike getting cuts at about the same rate.

Defendants were better off in Chicago than they were in sunny California. The 7th Circuit gave the largest sentence cuts, 33 months off on the average (20% of the original sentence). The 9th Circuit was the stingiest, giving an average cut of 20 months (16% of the sentence).

U.S. Sentencing Commission, 2014 Drug Guidelines Amendment Retroactivity Data Report (May 10, 2017)

– Thomas L. Root

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