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First Week at the Supreme Court: Guns, Gender and Guidelines – Update for October 13, 2026

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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.

SCOTUS GETS BACK TO WORK

This year’s Supreme Court term (known in judicial speak as “October Term 2026”) began last week with some interesting, if below-the-radar, developments.

Felon-in-Possession: Last spring, the 5th Circuit declared 18 USC § 922(g)(1) – the felon-in-possession statute – unconstitutional as applied to a defendant whose only prior felony was a state simple drug possession conviction. The Circuit ruled that there was no historical evidence that people possessing contraband that didn’t pose a danger to others were prohibited from owning guns.

The government – which usually gets its way when it wants Supreme Court review – asked SCOTUS to take up the case but hold it until it could apply its ruling in United States v. Hemani, last June’s holding that 18 USC § 922(g)(3) – the subsection that bars “habitual” drug users from having guns – violates the 2nd Amendment as applied to a Texas man who said that he smoked marijuana a few times a week.

The Hemani decision noted that it did not address the federal law “disarming individuals convicted of felonies (often including drug-related ones.”  After Hemani, Defendant Hembree urged the justices to leave the 5th Circuit’s ruling in place. “The decision in Hemani does not affect the outcome here,” he wrote in his response to the Government petition for certiorari, because it “says nothing about nonviolent felons being categorically and permanently disarmed.”

Last week, the Supremes agreed, denying the government review of the 5th Circuit decision. This means that the 5thCircuit joins the 3rd (Range v. Attorney General) and the 6th (United States v. Williams, sort of) in holding that § 922(g)(1) can violate the 2nd Amendment as applied to some people whose prior felonies don’t show dangerousness.

United States v. Hembree, 165 F.4th 909 (5th Cir. 2026)

United States v. Hembree, Case No. 25-1219 (Cert denied, October 5, 2026)

Do The Notes Count? For everyone who ever wondered whether you have to read the footnotes, the Supreme Court will reconsider the 30-year-old Stinson v. United States holding that courts must follow Sentencing Commission commentary that interprets or explains a Guideline “unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.”

Stinson made a lot of sense back when courts were required to follow the Guidelines and the Chevron doctrine directed courts to defer to agency interpretation of statutes. But in 2019, in a major test of deference to agencies’ interpretations of their own regulations, the court ruled in Kisor v. Wilkie that courts must defer to an agency’s interpretation of its regulations only where the regulation is genuinely ambiguous on the question at issue.

In Beaird v. United States, the Supreme Court will consider whether Stinson still correctly captures the deference that courts must give to the Guidelines’ commentary. The degree of deference matters because a significant amount of detail about how the sentencing guidelines should be applied is found in the commentary, covering the gamut of federal crimes from fraud to firearm offenses.

The Beaird defendant claims his sentencing was wrongly calculated to include an enhanced base offense level for unlawful gun possession by counting a 17-round magazine attached to the firearm as a “large-capacity magazine.”

The sentencing Guideline applies an enhancement where the firearm has a “large-capacity magazine,” but exactly how large a magazine must be to ne “large capacity” is only defined in the commentary as a “magazine or similar device that could accept more than 15 rounds of ammunition.” That definition sweeps in just about any double-stack auto pistol on the market, including five of the most popular Glocks, Sigs, Smith & Wessons and HKs.

The defendant argues that the commentary, which unlike the guideline itself is not approved by Congress, improperly expands the scope of the guideline. That guideline, he contends, was intended to target only weapons that are exceptionally dangerous or inherently illegal, not industry-standard semiautomatic firearms.

Beaird v. United States, Case No. 25-5343 (argued October 13, 2026)

BOP Transgender Policy: Lawyers for Bureau of Prisons transgender inmates urged the Supreme Court on Thursday to leave in place a court order that bars the BOP from enforcing a new policy on healthcare that would prevent transgender inmates from obtaining hormone therapy and “social accommodations” (such as makeup, wigs, and padding).

The BOP adopted the policy earlier this year, following President Trump’s February 2025 executive order directing the attorney general to “ensure that no Federal funds are expended for any medical procedure, treatment, or drug for the purpose of conforming an inmate’s appearance to that of the opposite sex.”

Three transgender inmates then went to federal court in Washington, DC, to block the enforcement of the policy. On August 26, Senior US District Judge Royce Lamberth issued an order barring the BOP from implementing the policy, and on September 18, the DC Circuit refused to reverse the order. On September 28, BOP went to the Supreme Court to ask that the order be blocked, complaining that the district court had “substitut[ed] its own policy judgment” for the BOP, “rel[ied] on evidence outside the administrative record… fault[ed] the agency for following presidential directions… [and] denied prison administrators the substantial deference they are due.”

The issue of the temporary order, on the SCOTUS “emergency” docket, will probably be decided next week. Ultimately, a decision on the merits of the underlying case could not just affect transgender inmates but define how much deference courts have to give “prison administrators.”

Trump v. Kingdom, Case No. 26A-416 (application for stay filed September 28, 2026)

~ Thomas L. Root

USSC Proposes Refinements on ‘Career Offender’ – Update for January 30, 2026

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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 COMMISSION FLOATS PROBATION, CAREER OFFENDER PROPOSALS

In a rare second round of proposals for amending the federal Sentencing Guidelines, the US Sentencing Commission today published three sets of options to perhaps add to the proposed amendments that will be sent to Congress on or before May 1st.

These proposals are in addition to several issued last month, and – if adopted – represent a substantial change toward judicial flexibility as well as a commonsense approach to what some think has become a tendency to label far too many defendants as “career offenders,” a designation that has a major inflationary effect on sentencing ranges.

Today’s proposals focus on substantially expanding the sentencing ranges that should be eligible for probation, home confinement, and “spilt sentences” (half in  prison, half on home confinement).  Currently, a defendant who has a sentencing range that starts at more than 12 months is presumptively doing it all in prison. More than six months takes probation off the table. The Commission proposes to dramatically increase the sentencing ranges for which judges may consider probation and split sentences, with the probation zone expanding to up to the 87-108 month stratum for people with no prior criminal history (and more modest expansions for those having criminal history).

More significant are proposed changes in the Guidelines that govern whether someone is considered a “career offender.” The Sentencing Reform Act of 1984 directs the Commission to ensure that “career offenders” receive sentences near the statutory maximum. The Commission’s definition of what constitutes a career offender, however, has caught many defendants in the net whose criminal histories do not suggest “career criminal” by any stretch of the imagination.

Under the current Guidelines, two minor state burglaries 14 years ago for which Donny Defendant served 60 days – with a spotless record since – would nevertheless qualify Donny as a career offender if he got convicted of buying a pound of pot to divide up and sell to friends.  His Guideline sentencing range – 8 to 14 months – would shoot up to 210-262 months because of those 14-year old state burglaries.

The long-awaited change in the “career offender” guidelines would abandon the current “categorical approach” to what prior convictions were crimes of violence or drug offenses, substituting instead a list of federal and state crimes that apply. Burglary would no longer apply, felonies of any kind for which the defendant served less than 90 days would not apply, and defendants would have a chance to show that some crimes of violence should not count because their conduct was completely nonviolent.

There are many options contained in the USSC’s latest proposal.  For instance, the Commission asks people to comment on whether the cutoff for not counting minor felonies should be a sentence of 30, 60 or 90 days.  The proposal also includes changes to address conflicts among federal circuits on aspects of the Guidelines and changes to

As with most USSC proposals, the document is lengthy, 56 pages of explanation and granular strikeouts and additions, as well as modifications to the human trafficking Guidelines “to provide enhanced penalties that better reflect the harms of certain human smuggling offenses.”

The proposals are out for public comment until March 18, 2026,

US Sentencing Commission, Public Hearing (January 30, 2026)

US Sentencing Commission, Proposed Amendments to the Sentencing Guidelines (Preliminary) (January 30, 2026)

~ Thomas L. Root

A New November… Same Old Laws – Update for November 3, 2025

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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.

NOVEMBER 1ST IS HERE… SO WHAT?

Quick quiz: What new laws benefitting inmates became effective on November 1st?

If you said ‘none,’ you win. Any other guess means you lose. If you said the ‘65% law went into effect,’ go to the back of the class.

In a few weeks, I will have been writing this newsletter every week for 10 years. And for the past 10 years, I have been waging a lonely campaign to stamp out the never-ending myth that Congress just passed (or is about to pass) a law that says that some or all federal offenders will only have to serve 65% of their sentences.

So I again repeat myself. There is NO 65% bill, 65% law or 65% anything. There is NO proposal to cut federal sentences so that everyone will only serve 65% of his or her time. There is NO bill, law, NO directive from Trump, and NO anything else that will give inmates extra time off because things were so bad during COVID.

Nothing. Nada. Zilch. Bupkis.

The genesis of the pernicious 65% rumor is a longing for the bad old days of parole, where federal prisoners served between one-third and two-thirds of their sentences. People seem to think that if parole – abolished in the Sentencing Reform Act of 1985 – only came back, that means that prisoners would only serve two-thirds of their current Sentencing Guidelines sentences. But back then, there were no Guidelines sentences. Courts would just hand out statutory sentences of 5 years, 10 years, 20 years, or whatever. The U.S. Parole Commission would then apply its own guidelines to determine where – between one-third and two-thirds of that time – you’d actually be locked up.

So that meant on a sentence with a statutory range of zero to five years, the court would usually give you five years. You would serve between 20 months and 40 months, but you wouldn’t know how long you’d serve until you finally had your parole hearing (in front of a board of non-judges who were notoriously pro-prosecution).

The Sentencing Guidelines moved that analysis to the front of the sentencing process and applied standards that were much more detailed and subject to due process protections.  The parole hearing process was opaque and – while it could be challenged with a 28 USC § 2241 habeas petition – was nearly bulletproof. I have seen both systems, and for all of its shortcomings, the Sentencing Guidelines are better for prisoners by an order of magnitude.

The 65% rumor gained legs because the late Rep. Sheila Jackson-Lee (D-TX) introduced a bill in every Congress since 2003 (except for the 116th in 2019) to increase 18 USC § 3624(b) good time from 15% to 35% for nonviolent offenders. None of those bills ever collected a single co-sponsor, had a committee hearing, or came up for a vote.

Congresswoman Jackson Lee died in June 2024 of pancreatic cancer. Her last effort at a 65%-type law was the Federal Prison Bureau Nonviolent Offender Relief Act of 2023 (H.R. 54), which called for nonviolent offenders who were at least 45 years old and had zero criminal history points and no incident reports to serve only 50% of their sentences. This bill, like her prior efforts, failed.

There is NO legislation pending in Congress – a legislative body unable to even keep the government open – that provides any sentencing relief for federal prisoners. I predict that there is no stomach in this Republican-controlled Congress to entertain any such legislation. If there were, President Trump – who has been pushing the trope that America is overrun with crime – is unlikely to sign it.

However, the 2025 Guidelines amendments did become effective on November 1st. The most significant is that for the first time in 37 years, departures have been eliminated (except for substantial assistance to the government, its own category with three decades of precedent on its frequent application). Another, a new drug amendment, expands the use of the mitigating role adjustment and caps the drug quantity table for such people at a maximum of 32. Another change encourages courts to impose supervised release only on people needing such structure and asks courts to terminate such supervised release early.

The supervised release change will benefit anyone subject to current or future supervised release. None of the other changes, however, is retroactive.

US Sentencing Commission, Amendments in Brief (October 31, 2025)

~ Thomas L. Root

Judge Assails ‘Paying Rent on the Courtroom’ – Update for March 20, 2025

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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.

DISTRICT COURT HOLDS USSG 3E1.1 THIRD POINT UNCONSTITUTIONAL

In federal criminal justice, the “trial penalty” is the difference between the sentence criminal defendants typically receive after a plea bargain and the much higher sentence they get if they are convicted at trial.

pleadeal180104An experienced federal defense attorney I once knew called it paying rent on the courtroom. The expression is not uncommon.

That difference can be huge. The National Association of Criminal Defense Lawyers says that “federal trial sentences are roughly three times higher than plea sentences for the same crime on average and sometimes as much as eight or ten times higher. This sentencing differential is extremely coercive. As a result, only 2-3% of federal convictions are the result of trial. The rest are plea bargains.”

NPR reports that 98% of federal criminal cases end with a plea bargain.  A 2023 American Bar Association task force that included prosecutors, judges, defense attorneys and academics cited “substantial evidence” that innocent people are coerced into guilty pleas because of the power prosecutors hold over them, including the prospect of decades-long mandatory minimum sentences.

“Trials have become rare legal artifacts in most U.S. jurisdictions, and even nonexistent in others,” the ABA Plea Bargain Task Force concluded.

plea161116Last week, Southern District of New York U.S. District Judge Jeb Rakoff (who “has been complaining, in various ways in various fora, about the severity to the federal sentencing guidelines, mandatory minimum sentencing statutes and the “trial penalty” for many years,” as Ohio State University law professor Doug Berman as aptly put it), ruled that U.S. Sentencing Guideline § 3E1.1(b) exacerbates the “trial penalty” in a way that violates the 6th Amendment.

Section 3E1.1 awards two reduction points to defendants who accept responsibility for their offenses (admit guilt with a reasonable degree of convincingness). If a defendant qualifies for the two points allowed by § 3E1.1(a), she can earn an extra one-point deduction (at the government’s sole election) under § 3E1.1(b) if she saves the government’s resources by pleading guilty early, thus avoiding the need for the U.S. Attorney to prepare for trial. In practice, however, the government has occasionally used the point to cadge defendants into surrendering assets, waiving sentencing objections, forgoing appeal, and other surrenders of rights having nothing to do with timeliness of plea.

pleadealB250320Judge Rakoff’s objection to § 3E1.1(b) is more basic than a complaint about government overreach. He argues that the third point is an unconstitutional restriction on a defendant’s 6th Amendment right to a jury trial by making the “trial penalty” even higher.  Judge Rakoff wrote:

[T]he Sentencing Guidelines effectively reinforce the trial penalty by reducing the offense level calculation by two points if the defendant “clearly demonstrates acceptance of responsibility” by pleading guilty, and by a third point if, in the Government’s view, the defendant has pled guilty quickly enough to permit the prosecutor to avoid preparing for trial. U.S.S.G. § 3E1.1. While the underlying theory of the two-point reduction is that a guilty plea evidences, and rewards, a defendant’s remorse, the third-point reduction is justified simply on the ground of saving prosecutorial resources…

Because of the odd way in which 3E1.1 as a whole is phrased — as a reduction in offense level for a defendant’s not exercising his constitutional right to go to trial — the remedy for the Court’s conclusion that § 3E1.1(b) is unconstitutional is to reduce the penalty thereby effectively imposed on those who choose not to avail themselves of the “benefit” of § 3E1.1(b). The Court therefore concludes that in this, and indeed every case in which a defendant chooses to go to trial but is convicted by a jury, or in which the defendant simply chooses to consider going to trial until after the Government has already started preparing for trial, the formal calculation of the offense level must be reduced by one point…

United States v. Tavberidze, Case No. 23-cr-585-03, 2025 U.S. Dist. LEXIS 43082 (S.D.N.Y., March 10, 2025)

Sentencing Law and Policy, Judge Rakoff asserts USSG § 3E1.1(b) is “effectively an unconstitutional penalty” on Sixth Amendment trial rights
(March 12, 2025)

American Bar Association, Criminal Justice Section, Plea Bargain Task Force Report (February 2023)

– Thomas L. Root

Guidelines Criminal History Changes To Benefit Some – Update for April 21, 2023

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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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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.

compassionaterelease190517

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

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