Tag Archives: supervised release

Two Circuits Liberalize Fair Sentencing Act Reductions – Update for August 24, 2021

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

TWO FAIR SENTENCING ACT CASES GO FOR THE PRISONERS

Last week saw two unsurprising but welcome Fair Sentencing Act decisions.

In the 11th Circuit, Tony Gonzalez was serving a 51-month supervised release sentence. Originally convicted in 2005, Tony served 76 months for a crack cocaine conviction. Released in 2015, he got tripped up on substance abuse during his supervised release term and was sent back to prison.

addiction210825Tony filed for a Fair Sentencing Act retroactive sentence reduction based on § 404 of the First Step Act. His district court denied him for a couple of reasons, one of which was that he wasn’t currently serving a sentence for crack cocaine, but instead for violating his supervised release.

Last week, the 11th joined the 4th and 6th Circuits “in holding that a sentence imposed upon revocation of supervised release is eligible for a sentence reduction under § 404(b) of the First Step Act when the underlying crime is a covered offense within the meaning of the Act… Thus, the district court had the authority to consider his motion for a sentence reduction just as if he were serving the original custodial sentence. So Mr. Gonzalez is eligible for a sentence reduction under the First Step Act.”

Meanwhile, in the 8th Circuit, Jack Robinson – who was doing life for a crack offense in which he had been tagged for over 2 kilos of crack – had been denied a Fair Sentencing Act reduction by his district court. The district judge ruled that “Robinson would have been subject to the same mandatory life sentence had the Fair Sentencing Act been in effect at the time he committed the covered offense… because the revised version of § 841(b)(1)(A)(iii) provided for a mandatory life sentence if the defendant was convicted for 280 grams or more of crack cocaine and had two or more prior felony drug offense convictions,” and thus reasoned that the court was deprived “of the discretion to reduce Robinson’s sentence under the First Step Act.”

Last week, the 8th Circuit reversed. “This reasoning is contrary to the principle that the First Step Act applies to offenses, not conduct,” the Circuit said, meaning that Jack’s statutory “sentencing range under the First Step Act is dictated by the movant’s offense of conviction, not his relevant underlying conduct… Therefore, Jack’s offense of conviction — not the underlying drug quantity — determines his applicable statutory sentencing range.

life161207At his initial sentencing, Jack faced a mandatory term of life imprisonment because he was convicted and sentenced for conspiracy to distribute at least 50 grams of crack and because he had two prior drug felonies. “Under the Fair Sentencing Act,” the Circuit said, “the statutory sentencing range for his conspiracy to distribute 28 grams or more of crack cocaine, including his prior convictions, is now not less than 10 years and not more than life. Thus, the district court erred as a matter of law when it relied on the sentencing court’s drug quantity finding of 2.35 kilograms of crack cocaine to determine Jack’s applicable statutory sentencing range under the Fair Sentencing Act and the First Step Act.”

United States v. Gonzalez, Case No 19-14381, 2021 U.S.App. LEXIS 24765 (11th Cir., August 19, 2021)

United States v. Robinson, Case No 20-1947, 2021 U.S.App. LEXIS 24603 (8th Cir., August 18, 2021)

– Thomas L. Root

8th Circuit Says Supervised Release Violation Hearing Still Has Some Due Process Left – Update for August 9, 2021

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

(HEAR)SAY WHAT?

Hearsayevidence210809Once a federal prisoner is released, he or she spends a period of several years (on the average) on “supervised release,” under which he or she is supervised by a United States Probation Officer who (often enough) lives to declare that the former prisoner has violated the terms of supervised release and should be sent back to prison. It is not surprising that about one out of three people get “violated” at least once during their terms of supervised release. Not all get sent back to prison, but enough do.

When the former prisoner is declared to have violated supervised release, a hearing is held that seems pretty short on due process guarantees. One of the most pernicious attributes of the hearing (besides the low standard of proof required, a mere 51% “preponderance of the evidence” standard) is hearsay.

Very simply, hearsay is any testimony about a statement made by someone not present in the courtroom introduced to prove the matter asserted. If defendant Larry Lowlife is accused of stealing candy from a baby, a witness’s statement that “my mother told me she saw Mr. Lowlife take the candy bar from the baby would be hearsay” if the statement is intended to prove Larry’s guilt.

Such testimony is generally not admissible, because – at least in criminal trials – it denies a defendant his or her 6th Amendment right to confront witnesses. Maybe Mom was standing 200 yards from Larry and the baby. Maybe Mom stood to make a lot of money writing a book about Larry’s theft. Maybe Mom took the candy, and was trying to deflect blame. If Mom is not present to testify, Larry can’t mount a defense.

hearsay210809To be sure, there are dozens of exceptions to hearsay, from excited utterances to dying declarations. That’s for law school evidence class. For now, it’s enough to understand that hearsay can be dangerous and that courts have been all too willing to allow it to send people back to prison.

People like Derone Coleman. Derone’s Probation Officer moved to revoke his supervised release after his former squeeze Kippie House complained of a more current “squeeze.” She said Derone “squeezed” her around the neck, choking her, biting her on the face, and pulling a gun on her while reminiscing about their prior relationship.

Kippie’s cousins were present for the alleged assault, giving the government an impressive witness list at Derone’s supervised release violation hearing. But Kippie had moved, and she and her cousin Lashonda made themselves scarce when the PO tried to subpoena them. What’s more, after reporting Derone to the Probation Officer, Kippie declined to press charges locally.

The government told the court that its “efforts to serve” Kippie and Lashonda “have been unsuccessful,” and instead offered three other witnesses, who could only recount what Kippie or Lashonda had told them. Derone objected to the hearsay evidence, arguing that he had a right to confront his accusers. The district court disagreed, holding that the government’s explanation showed there was good cause for House’s absence at the revocation hearing. The district judge had his own doubts about the photo evidence of Kippie’s alleged injuries, but even so he viewed the photos as consistent with what the witnesses said Kippie had told them about the assault.

The district court revoked Derone and gave him 60 months.

Last week, the 8th Circuit reversed. Although at the revocation stage, a defendant has less than the full panoply of protections afforded by the rules of evidence, he or she is still entitled to the “minimum requirements of due process.” Among those requirements is the right to confront and cross-examine adverse witnesses, the 8th said, “unless the hearing officer specifically finds good cause for not allowing confrontation.”

dodgesubpoens210809“In assessing whether a defendant should have been allowed to confront an adverse witness,” the Circuit ruled, “we balance his due process rights against the grounds asserted by the government for not requiring confrontation.’” To show good cause for denying a defendant his confrontation rights, the district court needed to assess the government’s reason for not producing Kippie; and the reliability of the hearsay offered in place of her testimony. “The government needed to show both prongs,” the Circuit said. “A failure under either prong negates good cause.”

Generally, unless a witness has moved out of state, the government has no excuse for not producing her to testify. Here, the government argued that the Probation Officer had tried to call Kippie without success. The 8th observed, “If we were to adopt the government’s position, then we would effectively equate missed calls to an interstate move.” While witnesses who refuse to testify out of fear have been excused in the past, the Circuit noted, while Kippie “changed her mind about pressing charges… nothing in the record suggests she refused to comply with a subpoena or said that she would not testify.”

Beyond that, the 8th said, the government never established a causal link between the photographic evidence and the hearsay. Derone argued Kippie, as a jilted girlfriend, had a motive to get Derone locked up. The government argued on the other hand that the very fact Kippie refused to press charges meant that she knew her honest testimony would lock up someone she still cared about, and thus her failure to testify actually corroborated her testimony.

The Circuit punted on those arguments, dryly noting that “regardless of the truth of Kippie’s out-of-court allegations, the government needed to offer additional indicia of reliability when a possible motive to implicate Derone indisputably existed.”

The 8th told the district court to cut Derone loose.

United States v. Coleman, Case No 20-2623, 2021 U.S.App. LEXIS 23037 (8th Cir., Aug. 4, 2021)

– Thomas L. Root

3rd Circuit Says Nothing Extraordinary in Supervised Release Early Termination – Update for October 20, 2020

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

WE MAY HAVE MISREAD THAT, THE COURT SAYS…

supervisedrelease180713Supervised release is a period after a federal inmate completes his or her prison sentence – a lot like parole and kind of like probation – during he or she is subject to a series of reporting conditions and limitations imposed by the court. A U.S. Probation Officer supervises the former inmate, and holds the power to seek revocation of supervised release and return to prison under evidentiary and procedural standards that are rather lax, to say the least.

Fortunately for the former inmate, under 18 USC § 3583(e), someone on supervised release can get that supervision term ended early. The statute requires the court, in deciding whether to terminate early, to apply the 18 USC § 3553(a) sentencing factors. No surprise there, but many courts have been buying into the government’s argument that just being good while on supervision isn’t enough: the movant has to show something extraordinary or exceptional justifying saving the government money and the former inmate aggravation.

supervisedleash181107Aggravation? Well, yes. The former inmate must make monthly filings detailing his or her finances, purchases and employment. He or she cannot leave the federal district without permission of the Probation Officer. Often, he or she cannot change jobs without the Probation Officer’s OK, and woe betide anyone who has an unreported contact with someone who has a criminal record (that would be one out of three adult Americans). Oh, yes, the Probation Officer can search the former inmate’s home at any time without a warrant.

supervisedrevoked181106Nationally, the rate of violations that result in a hearing before the judge (where return to prison is a possibility) is about 17%.  The prevalence of supervision violations, however, varies considerably among the federal judicial districts. In a July 2020 U.S. Sentencing Commission study, more than a third of individuals on supervision risked reimprisonment in violation hearings in the Southern District of California (42.1%), District of Minnesota (37.4%), Western District of Missouri (34.3%), District of Arizona (33.7%), and District of New Mexico (33.4%). In contrast, violations accounted for less than five percent of individuals on supervision in the Districts of Connecticut (4.5%) and Maryland (4.7%).

No wonder people on supervised release want to “get off paper,” as they put it. But few can meet the “extraordinary or exceptional reason” for early termination standard many courts impose.

Last week, the 3rd Circuit traced the twisted history of this “extraordinary or exceptional reason” requirement, and found no support for the standard.

The 3rd acknowledged that its prior non-precedential decisions had required “something exceptional or extraordinary” to warrant early termination, relying on the Second Circuit’s United States v. Lussier decision. “But this was a misreading of Lussier,” the 3rd Circuit said, in a rare acknowledgement that it had previously been wrong:

As the Second Circuit explained more recently, ‘Lussier does not require new or in order to modify conditions of release, but simply recognizes that changed circumstances may in some instances justify a modification’. In other words, extraordinary circumstances may be sufficient to justify early termination of a term of supervised release, but they are not necessary for such termination. We think that generally, early termination of supervised release under § 3583(e)(1) will be proper only when the sentencing judge is satisfied that new or unforeseen circumstances warrant it. That is because, if a sentence was ‘sufficient, but not greater than necessary’ when first pronounced, we would expect that something will have changed in the interim that would justify an early end to a term of supervised release. But we disavow any suggestion that new or unforeseen circumstances must be shown.”

Got that? “Extraordinary or exceptional reasons” no longer necessarily apply, except when they generally do.

money160118Each person being supervised costs the government about $4,400.00, according to the Administrative Office of United States Courts. You’d think that saving that money might be a factor for more courts, especially where there is no discernible benefit to the supervisor or supervisee by continued oversight.  

But then, what’s $4,400 a year, even when multiplied by the 133,000 people under supervision?  Answer: a half billion a year, a mere flyspeck to Uncle Sam.

United States v. Melvin, 2020 U.S. App. LEXIS 32683 (3rd Cir. October 16, 2020)

– Thomas L. Root

One Court Gives, Another Takes on Supervised Release – Update for February 26, 2020

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P.O. KNOWS BEST, AND OTHER STORIES

A pair of supervised release condition cases last dramatically broadened defendants’ protections against probation officers running amok, but greatly narrowed the window defendants have to challenge those conditions.

supervisedrelease180713First, a little background: In the Sentencing Reform Act of 1984, Congress decreed that virtually all persons convicted of a federal criminal offense who were sentenced to prison would also serve a term of supervised release – during which they would be subject to limitations on travel and association, to regular reporting requirements, and to oversight by a probation officer – after the prison sentence ended.

Thus, supervised release is similar to what used to be parole. The conditions of supervised release are imposed by the district judge at sentencing, at which time the defendant – focused entirely on the impending prison term – hardly ever pays attention to the many ambiguities and indignities that the supervised release terms (a number of which are of dubious constitutionality) will impose on him or her after prison is but an unpleasant memory.

Now back to the live action: One of the supervised release conditions imposed on Shawn Lee, who was convicted of settling meth, prohibited him from “knowingly meeting, communicating, or otherwise interacting with any person whom she knows to be a convicted felon… unless granted permission to do so by the probation officer.” He appealed the supervised release condition, arguing that it was an improper delegation of Article III power by the court to the probation officer, and that – because Shawn’s two sons were also convicted felons (it appearing to run in the family) – it meant the PO could keep Shawn from seeing his own offspring.

Federal judges are known as “Article III judges,” because they are appointed by the president and confirmed by the Senate under Article III of the constitution, which give them (and only them) the power and duty of imposing punishment on a defendant. While an Article III judge may task a probation officer (who is not an Article III judge) with “performing ministerial acts or support services related to the punishment imposed,” the non-delegation rule prohibits the judge from allowing a probation officer to decide the nature or extent of a defendant’s punishment.”

supervisedleash181107Last week, the 7th Circuit ruled the supervised release condition went too far. “The probation officer’s future task, then, is not merely to manage or supervise, but to determine whether, when, and how a particular component of Lee’s punishment is imposed.” The condition “anoints the probation officer with the sole authority for deciding if” Shawn can even see his own kids.

“Article III does not confer upon the probation officer the authority to release a convict from a component of his or her sentence, either,” the court said. “The clause ‘unless granted permission to do so by the probation officer’ violates this principle and must be stricken… only the district judge can permit or deny association.”

Supervised release conditions are usually chock-a-block with delegations of power to the PO. This decision suggests that most of those are constitutionally flawed. But before inmates fire up their law library typewriters, they should consider a 6th Circuit decision, also from last week.

Robert Faber complained that his supervised release conditions did not let him live with his Wiccan religion “spouse.” He filed an 18 USC § 3583(e)(2) motion to modify the condition, arguing it violated the Religious Freedom Restoration Act.

The district court denied the motion, and Bob appealed.

Last week, the 6th Circuit held that it lacked jurisdiction. Under § 3583(e)(2), a district court may modify or rescind a condition of supervised release after considering certain enumerated factors, including “the circumstances of the crime, the characteristics of the defendant, deterrence, protecting the public, providing the defendant with training and education, and others,” the Circuit said. “Not included: illegality of the condition.”

time161229Under the Sentencing Reform Act of 1984, the right to challenge an illegal sentence under F.R.Crim.P. 35(a) was cut, requiring defendants to move for such relief within just 14 days after sentence. “Construing § 3583(e)(2) as allowing district courts to eliminate an allegedly illegal condition at any time would disregard the plain text of the statute and frustrate Congress’s intent to encourage timely challenges.”

Bob could have appealed the condition, claiming illegality. He could have filed a timely Rule 35(a) motion. But he did not. He can argue under 18 USC § 3582(e)(2) that the supervised release condition should be set aside for any number of reasons, but the condition’s illegality is not one of them.

United States v. Lee, 2020 U.S. App. LEXIS 4944 (7th Cir. Feb. 18, 2020)

United States v. Faber, 2020 U.S. App. LEXIS 5063 (6th Cir. Feb. 19, 2020)

– Thomas L. Root

Retroactive Crack Law Applies to Some Completed Sentences, 6th Says – Update for February 11, 2020

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ANOTHER CIRCUIT RULES SUPERVISED RELEASE DEFENDANT ELIGIBLE FOR RETROACTIVE FAIR SENTENCING ACT CUTS

The 6th Circuit joined the 4th last week in ruling that a defendant now serving a prison term for violating supervised release could apply for a retroactive sentencing cut under the Fair Sentencing Act, despite the fact he had completed serving the underlying crack cocaine sentence.

supervisedrevoked181106Aaron Woods served 120 months after being convicted in 2001 for distributing crack. After he was released, he was on supervised release for five years, during which time he caught a state marijuana case. His SR was violated, and he was sent back to federal prison for another 37 months for the revocation.

Aaron applied under the First Step Act for retroactive application of the 2010 Fair Sentencing Act sentence cut. The district court held he was ineligible because his current sentence was for violating SR, not for crack.

The 6th disagreed. “Postrevocation penalties relate to the original offense,” the Circuit held. Treating “revocation and reimprisonment as punishment for the violation of the conditions of supervised release” instead of a continuation of the original offense would raise “serious constitutional questions, such as double jeopardy concerns.” Therefore, Aaron was eligible for an FSA sentence cut.

United States v. Woods, 2020 U.S. App. LEXIS 3462 (6th Cir. Feb. 4, 2020)

– Thomas L. Root

Fifth and 11th Circuits Give and Take on Supervised Release – Update for January 8, 2020

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A PAIR OF DECISIONS, GOOD AND BAD, ON SUPERVISED RELEASE

supervisedleash181107Worrying about supervised release may seem a waste of time for inmates more concerned with getting released from federal prison, but virtually everyone with a sentence of less than life will be on federal supervised release sooner or later. A full one-third of those people will have their probation officers seek to revoke their terms (and send them back to prison) before their supervised release term ends.

Supervised release is a term of years, something like parole, imposed after imprisonment. During this period, the released prisoner is subject to a series of conditions – such as holding a job, paying restitution, refraining from new criminal conduct – and reports regularly to a U.S. Probation Officer.

Anthony Foley was on federal supervised release when he was charged with a couple of state drug cases. He neglected to tell his probation officer about them, and – when he was found out – Tony was violated for the failure to report the matter. Tony faced 7-13 months under the supervised release Guidelines. He argued for seven months; the government asked for 13.

The district judge gave him 24 months, saying that Tony’s “criminal history category of five — and his willful failure to notify the probation office within 72 hours of arrest, and I believe, based upon these pending — just pending charges, he’s a continued threat to the community. I believe an upward variance is appropriate.”

Last week, the 5th Circuit reversed. The appellate court held that “a district court errs when it relies on a bare allegation of a new law violation contained in a revocation petition unless the allegation is supported by evidence adduced at the revocation hearing or contains other indicia of reliability, such as the factual underpinnings of the conduct giving rise to the arrest.” Where, as here, “the revocation petition included only bare allegations of new violations of law, and the allegations were not supported by evidence at the revocation hearing and do not have other indicia of reliability,” they were impermissible factors for the district court to consider.”

supervisedrevoked181106Meanwhile, in the 11th Circuit, Jeffrey Hill likewise caught a state drug case while on supervised release. During his revocation proceeding, he filed a motion to suppress evidence he said resulted from an illegal search. The district court ruled that suppression of evidence because of a 4th Amendment violation – the exclusionary rule – does not apply to supervised release revocations.

Last week, the 11th Circuit agreed. Because suppression of evidence imposes “substantial social costs,” including “its toll on ‘the truthfinding process, its incompatibility with the traditionally flexible, administrative procedures of parole revocation, and its frequent necessity for extensive litigation to determine whether particular evidence must be excluded,” the Supreme Court has held the exclusionary rule does not apply in state parole hearings. The Circuit said in light of that, it could see no reason why the exclusionary rule should not apply to supervised release revocation hearings.

United States v. Foley, 2020 U.S. App. LEXIS 61 (5th Cir. Jan. 3, 2020)

United States v. Hill, 2020 U.S. App. LEXIS 51 (11th Cir. Jan. 3, 2020)

– Thomas L. Root

4th Circuit Drops Two Huge Pro-Defendant First Step/Fair Sentencing Act Opinions – Update for November 25, 2019

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The ever-surprising Fourth Circuit last week handed down two blockbuster opinions on application of the retroactive Fair Sentencing Act of 2010. For those of you new to this blog, the Fair Sentencing Act changed the 100-to-1 ratio of crack to powder cocaine, dropping it to a more (but not completely rational) 18-to-1 ratio. That dramatically affected the sentences of people in federal prison for crack (94% of whom are black), but the change only applied to people who had not yet been sentenced. Those already in prison would continue to languish under the oppressive (and now discredited) sentences.

The First Step Act, passed eight years later, finally extended retroactivity to the Fair Sentencing Act. Finally, people sentenced before August 2010 – the effective date of the Fair Sentencing Act – could get a break. But the devil has been in the details. Last week, the 4th Circuit delivered a reason some federal prisoners might be extra thankful this Thanksgiving season.

THE 4TH CIRCUIT GOES UNITARIAN

One of the perks of writing this newsletter (besides long hours over the weekend and no pay) is that I get to be wrong so often.

After the First Step Act made the Fair Sentencing Act (FSA) retroactive, a lot of people serving supervised release (SR) violations after finishing crack sentences wondered whether they could get their crack sentences reduced even though they had already been served. It seemed to me that the law said “Hell, no”.

Last week, the 4th Circuit said, “Hell, yes.”

Bobby Venable, who was serving an SR violation sentence, filed an FSA sentence reduction motion applicable to his prior crack sentence. Bobby claimed he would no longer face a statutory minimum 10-year term of imprisonment, and he wanted to be resentenced to 63 months. Bobby claimed this sentence would allow the Bureau of Prisons to credit him for overserved time, to be applied to his current term of imprisonment for revocation of supervised release.

The district court summarily denied his motion, holding that because Bobby “has finished his term of incarceration and is currently in custody following revocation of his supervised release[,] no reduction is authorized.”

unitary191125No court of appeals has yet considered whether a defendant on SR can get an FSA reduction for a sentence already served, but the 4th Circuit decided that “the plain language of the relevant statutes and the unitary theory of sentencing” permitted Bobby a reduction. The Circuit said that because Bobby’s original offense was for crack cocaine, “so long as he is serving any part of his sentence for that offense, he is eligible for a reduction. His offense (possession of 12.1 grams of cocaine base) was originally classified as a Class B felony, but under the Fair Sentencing Act’s provisions, it is now classified as a Class C felony. This reclassification corresponds with a lower range of statutory penalties.”

Relying on yet another Johnson case, this one Johnson v United States, a 2000 Supreme Court decision, the 4th “adopted a unitary sentence framework… stating that treating custodial and supervised release terms as components of one unified sentence appropriately recognizes the interdependent relationship between incarceration and supervised release.” The Circuit said Bobby’s “revocation sentence is a component of his underlying original sentence for the drug conviction.” Thus, Bobby “is still serving his sentence for a “covered offense” for purposes of the First Step Act. Thus, the district court had the authority to consider his motion for a sentence reduction, just as if he were still serving the original custodial sentence.”

United States v. Venable, 2019 U.S. App. LEXIS (4th Cir. Nov. 20, 2019)

STATUTORY CHARGE, NOT THE PSR FINDING, COUNT FOR FSA

FSA resentencings have bogged down recently over the issue of what amount of crack should count for resentencing purposes.

Comparativecrack190425

The issue is a simple one: a defendant was charged with distribution of “50 or more grams of cocaine base,” which carries a 10-year sentence. But at sentencing, the presentence report prepared by the U.S. Probation Office goes wild (usually based on the prosecutor’s say-so), and finds the defendant was involved with 1.2 kilos of crack.

When the defendant, twenty years later, goes for resentencing, the district court denies the motion because the 1.2 kilos would still carry a 10-year mandatory minimum under the post-FSA law.

We’ve been waiting for the issue of which one counts – the indictment accusation or the sentencing finding – and last week, we got our first circuit ruling… and it’s a good one.

Ten years ago, Dan Wirsing was charged with possession with intent to distribute more than 5 grams of crack. He struck a plea deal with the government in which he admitted that the crack amount was 60 grams, and he got 188 months.

When Dan filed for a reduced sentence under the newly-retroactive FSA, his district court denied him for being ineligible, because the amount he admitted to – 60 grams – had the same statutory sentence now that 5 grams had before the FSA. Because there was no change in the punishment, the district court said, Dan had nothing coming under the FSA.

Last week, the 4th Circuit reversed. The First Step Act provides that a sentencing court “may… impose a reduced sentence as if sections 2 and 3 of the FSA were in effect at the time the covered offense was committed.” A “covered offense” is “a violation of a Federal criminal statute, the statutory penalties for which were modified by section 2 or 3 of the FSA that was committed before August 3, 2010.”

onething191125It does not matter, the 4th says, what Dan pled to or what the presentence report found or what the district court held at sentencing was the amount of crack involved in the offense. All that matter is that “the covered offense” was changed by the FSA, the 4th Circuit said, and the “covered offense” is what the indictment alleged, nothing more.

Other circuits will weigh in on this, no doubt, but the 4th’s unanimous and well-reasoned 22-page decision is bound to get a lot of deference when other courts decide the issue.

United States v. Wirsing, 2019 U.S. App. LEXIS (4th Cir. Nov. 20, 2019)

– Thomas L. Root

Court Reminds That Some Supervised Release Provisions Are Constitutional Duds – Update for November 22, 2019

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SLEEPERS

A 9th Circuit decision last week reminded me that countless defendants have judgments in their cases that contain some sleeper supervised release terms of dubious constitutionality.

sleeper191122Until Guidelines Amendment 803 in November 2016, standard conditions of supervised release included a requirement that a defendant “support his… dependents and meet other family responsibilities,” that he “work regularly at a lawful occupation,” and that he “notify third parties of risks that may be occasioned by [his] criminal record or personal history or characteristics.” Both the 7th and 9th Circuits have struck those standard conditions as being unconstitutionally vague under United States v. Evans, 883 F.3d 1154, 1162-64 (9th Cir. 2018) and United States v. Thompson, 777 F.3d 368, 379 (7th Cir. 2015).

Those conditions still purportedly apply to tens of thousands of prisoners when they are released, and can probably be addressed on or near release with a motion under 18 USC § 3583(e).

United States v. Ped, 2019 U.S. App. LEXIS 34092 (9th Cir. Nov. 15, 2019)

– Thomas L. Root

Futile Arguments of the Week – Update for October 31, 2019

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CAPTAIN OBVIOUS

obvious191031Two cases decided last week serve as reminders that some arguments are so obviously futile as to constitute a waste of everyone’s time.

Anthony Shockey violated supervised release by using methamphetamine. Use of a controlled substance is a Grade C violation, but new criminal conduct is a Grade B or A violation. His probation officer charged him with possession of meth, a violation of state law. Tony argued to the judge that he had not possessed the meth, just used it.

Guess how that turned out.

burger191031The district court found a Grade B violation, and imposed a prison term. On appeal, Tony Shockey contended that his use of meth did not require a finding that he also possessed it. The 7th Circuit would entertain none of that. “The district court reasonably could infer possession from use,” the Circuit said. “Inferring possession of a drug from the consumption of that drug is just as sensible as inferring, from the statement ‘I ate a hamburger for lunch,’ that the person possessed the hamburger before wolfing it down.”

Meanwhile, in the Western District of New York, George Moses had a proffer deal with the government. The government says that he lied through his teeth, so much so that it obtained a superseding indictment accusing him of making false statements to federal agents.

George moved to dismiss the new counts, arguing that the proffer agreement was ambiguous about whether the government could prosecute him for any lies he told, and the ambiguity should be resolved in his favor. Last week, the district court refused to throw out the counts.

The Court noted that in the proffer agreement, George had “agreed to provide complete and truthful information regarding any and all criminal matters of which the witness may have knowledge.” Under the agreement, the government could demand George take a polygraph. And paragraph 5 provided that while the information he provided could not be used against him, “any statements… provided by the witness may be used against the witness in a prosecution for perjury, making false statements or obstruction of justice.”

liar151213The district court said that plainly, the parties’ intention gleaned from the the proffer agreement was that George would tell the truth during the proffer session. “The agreement repeatedly makes it clear that Defendant must be truthful at the proffer session,” the district judge wrote. “That was the bargain struck by the parties. To interpret the agreement in the manner urged by Defendant would constitute a tortured reading of the proffer agreement that would ultimately permit Defendant to lie with impunity at the proffer session in direct contravention of the purpose of the agreement.”
Yeah, that was pretty obvious.

United States v. Shockey, 2019 U.S. App. LEXIS 31474 (7th Cir. Oct. 22, 2019)

United States v. Moses, 2019 U.S. Dist. LEXIS 181823 (WDNY Oct. 21, 2019)

– Thomas L. Root

Waive Your Supervised Release Termination ‘Goodbye’ – Update for August 14, 2019

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3RD CIRCUIT USES PLEA WAIVER TO BAR SUPERVISED RELEASE EARLY TERMINATION

pleadeal180104Almost all of the 97% of federal criminal defendants who take guilty pleas do so pursuant to a plea agreement. And these days, most of those plea deals prohibit the defendant from appealing or otherwise attacking the conviction and sentence.

But up to now, no one ever thought waiver extended to supervised release. Instead, it has always been a tenet of faith that a defendant could petition the court under 18 USC § 3583(e)(1) to terminate supervised release after a year if everything had gone well.

Congress decreed that virtually every sentence of incarceration would include a post-release sentence of supervised release. Under supervised release, the post-release defendant is subject to a bevy of reporting, travel, social and financial restrictions, all overseen by a U.S. Probation Officer. On the average, a third of all former prisoners are found by courts to have violated some supervised release requirement. Given the squishy and vague conditions, not to mention the arbitrary power wielded by the Probation Officer, it’s little wonder.

Last week, the 3rd Circuit broke unwelcome new ground, holding that a plea agreement waiver of the right to challenge the sentence in any way extended even past release. Ronald Damon, according to the appeals court, “signed a plea agreement with the United States accepting responsibility for a federal crime. He served time in custody and left prison. Now, having reentered society, he wants a fresh start, free from further oversight by the federal government. So Damon asked to end his term of supervised release a few years early. He offered facts and circumstances justifying his request, and highlighted the hardships imposed by restrictions on his activities. But Damon’s present desires are controlled by a past decision: his contract with the government containing the terms and conditions of his guilty plea. Because his plea agreement precludes challenges to his sentence, and because any shortening of his supervision would amount to a change in his sentence, we will affirm the decision of the District Court.”

Waivers160215The Court said that “in the agreement, Damon waived the right to file any motion or appeal that challenges the sentence imposed… Supervised release is part of the sentence that Damon received… Damon’s motion… questions his original sentence by seeking to shorten the term of his supervised release. By its very nature, it is a challenge to the sentence imposed.”

United States v. Damon, Case No. 18-2444, 2019 U.S. App. LEXIS 23466, 2019 WL 3559045 (3rd Cir. Aug. 6, 2019)

– Thomas L. Root