Tag Archives: supervised release

6th Circuit Bans Government Nostrums at Sentencing – Update for October 23, 2017

Leave a comment

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

LISAStatHeader2small
BELOW-GUIDELINES SUPERVISED RELEASE VIOLATION SENTENCE IS STILL UNREASONABLE

After a federal inmate serves a prison sentence, he or she begins a period known as supervised release. SR is a fancy term for “parole,” except that unlike traditional parole, it doesn’t reduce a sentence. Instead, by law, SR is tacked on to every sentence, even life sentences (which end only with a pine box).

wencelausDPRK171023While on supervised release, an offender is under the thumb of a U.S. Probation Service officer, who has great latitude to either leave the offender largely alone or impose oppression that makes Kim Jong Un look like Good King Wencelaus. While the object of SR is to assist the offender in his or her reintegration into society, one supervising probation officer candidly told us a few years that his district violates a third of all offenders under their supervision.

Upon violation, an offender may be continued on supervision, have supervision extended, or sent back to prison. Because the standard of proof for a supervision violation is much lower than the “reasonable doubt” standard of criminal law and the evidentiary standards are loosey-goosey by comparison to a criminal trial, SR is a Sword of Damocles for ex-offenders trying to get back on their feet.

Of course, there are those offenders – like Ernie Adams, a 71-year old who has been addicted to opiates for 40 years – who just cannot conform. Ernie was on supervised release after serving a drug conspiracy sentence. Unsurprisingly for his addiction history, he failed drug tests three times in as many weeks, and got violated.

What do you expect of an addicted person? It’s a disease. You might as well demand that a person with bronchitis not cough.

fake171023Nevertheless, continued drug use is forbidden by the conditions governing supervised release, and Ernie’s supervised release was revoked. Ernie’s Guidelines range for his SR violation was 21-27 months. At sentencing, the judge talked extensively about Ernie’s substance-abuse problems and rehab failures. The government argued at sentencing that long-term heroin addicts like Ernie needed 18 months for their brain chemistry to “reset” in order for future treatment to be effective. The court nodded in sage agreement to this scientific stat, but cut Ernie a break by sentencing him to 18 months, three months below the bottom of the Guidelines range.

You’d think Ernie would figure he’d dodged the bullet, but you’d be wrong. Ernie appealed, arguing the sentence was procedurally and substantively unreasonable. Last week, the 6th Circuit agreed.

It turns out that the government’s talk about the 18-month brain “reset” was fake science. The government countered, however, that while what it told the court was as phony as phrenology, that did not matter, because Ernie had no right to the government telling the court the truth. Actually, the government’s argument was a little more nuanced than that, contending that a defendant does not have a due-process right “to be sentenced based on accurate information… beyond the facts of the defendant’s own actions and criminal record.”

The government’s argument was as fake as its “science.” The 6th Circuit said “the due-process right to be sentenced based on accurate information is not limited to information solely about the defendant’s actions and criminal history.” Instead, if the bad science embraced by the sentencing court was an “important factor” in calculating Ernie’s sentence, Ernie’s rights were violated.

pseudo171023The Circuit held that the government’s 18-month brain “reset” was “an unsubstantiated assertion that has the veneer of accuracy due to its supposed status as a product of scientific research.” And it was persuasive: the district court told Ernie it had chosen the sentence length “because you need that long to reset and maybe get another, maybe get another chance at remaining clean and sober.” The Circuit concluded “the district court, therefore, violated Adams’s due-process right when it incorporated this unreliable information in its sentencing decision, and thus this sentence is procedurally unreasonable.”

The 6th Circuit said that while it presumes that a sentence below or within the sentencing range is substantively reasonable, that’s not invariable. Here, Ernie argued that the district court imposed a substantively unreasonable sentence because it to impose a sentence of imprisonment and extended the length of the sentence in order to rehabilitate him. The Circuit noted that the Supreme Court has held that extending a sentence in order to rehabilitate is prohibited, and concluded that the sentence – even though it was below-guidelines – was substantively unreasonable.

United States v. Adams, Case No. 16-2786 (6th Cir., Oct. 11, 2017)

– Thomas L. Root

LISAStatHeader2small

District Judge Cannot Delegate Pornography Access Decisions to Probation Officer – Update for Thursday, September 28, 2017

Leave a comment

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

LISAStatHeader2small
LEAVE ADULT PORN TO THE JUDGE

Under federal law, every criminal sentence of imprisonment also includes a post-release period of “supervised release,” which is really just a fancy term for probation. The courts like to describe supervised release in soaring terms, that it is “the decompression stage between prison and full release” and “serves complementary goals of protecting the public and re-habilitating an offender…”

jiggly170928The 30-yard view always looks better. Down in the trenches, the man or woman on supervised release (usually called the “offender”) is subject during its 3-year-to-infinite term to a series of conditions which share the unfortunate trait of being as amorphous as Jello, all interpreted by a probation officer whose relationship with the court would require the judge’s recusal in any other situation.

Squishy conditions? For example, the ex-offender “shall not associate with any person convicted of a felony unless granted permission to do so by the probation officer.” One out of 15 working-age adults is an ex-felon, and “associate” pretty much means whatever the probation officer says it means. So that guy you talked to at the bar? He’s a felon, whether you know it or not, and you probably just associated with him. This is hardly hyperbolic: we have had more than one probation officer tell us that “association” and “contact” are the same thing.

Another standard condition requires the defendant to “notify third parties of risks that may be occasioned by the defendant’s criminal record or personal history or characteristics, and shall permit the probation officer to make such notifications and to confirm the defendant’s compliance with such notification requirement.” And who interprets when such notification is needed, and to what extent? You guessed it.

And have you ever wondered why former inmates have trouble getting jobs? Or into education programs? Imagine the wet blanket the P.O. can throw over any job prospect simply by fiat that the inmate bare his or her soul to the company’s HR manager.

If a defendant is deemed by a probation officer to have violated a condition of supervised release, he or she will in all likelihood end up before the district court, where hearsay can be used to return the offender to prison on no more than a preponderance of the evidence (which may reasonably be translated as “the P.O.’s ‘say-so’). That’s unsurprising: after all the defendant has already been convicted beyond a reasonable doubt of the underlying offense, so a supervised-release violation may be considered to be little more than a sentencing.

The degree of control and discretion that supervised release confers on a probation officer is breathtaking to someone who has never been subject to its strictures. The defendant’s residence is subject to search without a warrant, the defendant’s travel outside of the federal district is subject to the P.O.’s approval (and many districts aren’t that large), and the defendant is required to report to the P.O. as often as the P.O. may require. A Chief Probation Officer in one federal district told us several years ago that his office “violated” one-third of all of the people supervised by his office.

emperor170726For those reasons, we’re always gratified on those rare “emperor-has-no-clothes” moments when a court of appeals acknowledges the obvious, that a condition of supervised release impermissibly delegates the judge’s duties to a functionary.

The frontier of supervised release litigation these days is for individuals convicted of sex offenses (most often, downloading child porn). Due in large part to the junk-scientific belief that sex offender recidivism is 80% (where it actually is somewhere like 3%), courts have heaped on supervised release restrictions. And given the tragic news from Los Angeles today that 91-year old exhausted rooster and porn pioneer Hugh Hefner died in his silk smoking jacket last night, it is only fitting that we look at a case from Hugh’s hometown of Chicago that deals with access to perfectly lawful (if a bit tasteless) adult porn.

Hef170928In today’s case, a district court imposed on Rick Wagner a special condition of supervised release that permitted the “sex offender treatment provider” to restrict his access to adult pornography. Rick argued to the 7th Circuit that the condition was an improper ban on him, as there is no evidence establishing a connection between his viewing lawful adult pornography and engaging in unlawful sexual activity with minor females.

Earlier this week, the 7th agreed the condition was improper but disagreed that it was an outright ban. “Instead,” the Court said, “the condition delegates the determination of whether a ban will be imposed to a sex offender treatment provider (“treatment provider”). But, Article III judges lack constitutional authority to delegate the duty of imposing a defendant’s punishment to a non-Article III judge, such as a probation officer or treatment provider.” The Court cited an earlier holding that “terms should be established by judges ex ante, not by probation officers acting under broad delegations…”

delegation170928The Circuit said that when determining whether a supervised release condition violates the non-delegation rule, “we distinguish between permissible conditions that merely task the probation officer with performing ministerial acts or support services related to the punishment imposed and impermissible delegations that allow the officer to decide the nature or extent of the defendant’s punishment.” A condition requiring a defendant to attend treatment as approved by the probation officer is not a problem: the court has ordered the treatment, and merely has the P.O. handle “the details and supervision of the program.” But it is a different matter altogether when treatment is ordered “as deemed necessary by probation”: there, the condition is a delegation of the underlying judgment of whether the condition will be imposed at all.

Here, the 7th Circuit said, the district court did not impose a ban on Rick’s access to adult pornography itself because – based on the utter lack of evidence supporting imposition of the condition – it could not. Instead, it did an end run around the matter by delegating the decision of whether “adult pornography should be restricted or denied” to a probation officer or treatment provider. The Court ruled, “This is an impermissible delegation of the district court’s Article III authority to determine the nature” of Rick’s punishment.”

United States v. Wagner, Case No. 15-3265 (7th Cir., Sept. 25, 2017)

– Thomas L. Root

LISAStatHeader2small

Cleaning Up After the Long Weekend – Update for September 5, 2017

Leave a comment

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

We had a lot of short notes included in yesterday’s newsletter to federal inmates. We’re publishing those posts below.

LISAStatHeader2small
10TH CIRCUIT DECLARES SUPERVISED RELEASE REVOCATION STATUTE UNCONSTITUTIONAL

The supervised release statute, 18 USC § 3583, provide that if a person on supervision violates, the court may send him or her back to prison for a specified term, and then impose more supervised release. The maximum terms of reimprisonment authorized by the statute for an supervised release violation of are limited based on the severity of the original crime of conviction, not the conduct that resulted in the revocation.

Some types of offenses are just too offensive. Today, it's kiddie porn... tomorrow, it may be jaywalking. That's why we have laws, to save us from the Flavor of the Day.

However, 18 USC § 3583(k) provides an exception. If the person subject to supervised release is a sex offender, and the conduct resulting in the revocation is a specified sex offense, the court is required to “revoke the term of supervised release and require the defendant to serve a term of imprisonment… [for] not less than 5 years.”

Last Thursday, the 10th Circuit ruled that 3583(k) violated Apprendi v. New Jersey and Alleyne v. United States, in that a mandatory prison sentence was increased based on a judge’s finding of fact instead of a jury finding beyond a reasonable doubt. The Court said § 3583(k) “strips the sentencing judge of discretion to impose punishment within the statutorily prescribed range, and… imposes heightened punishment on sex offenders expressly based, not on their original crimes of conviction, but on new conduct for which they have not been convicted by a jury beyond a reasonable doubt and for which they may be separately charged, convicted, and punished.

United States v. Haymond, Case No. 16-5156 (10th Cir., Aug. 31, 2017)

LISAStatHeader2small

MESSY FOIA REQUEST DOES NOT MERIT DISMISSAL

Inmates are notorious for filing badly-written Freedom of Information Act requests. It’s surprising however, to see a lawyer file a request as convoluted as the one attorney Steve Yagman sent to the CIA.

Steve asked for “records/information” on “the names and company/organization affiliations of any CIA employees, agents, operatives, contractors, mercenaries, and/or companies who are alleged to have engaged in torture of persons.” Specifically, he wanted the names and affiliations of those “as to whom President Obama stated that ‘we tortured some folks’ on August 1, 2014: that is, who are the individuals whom the word ‘we’ refers to?”

spy170905The CIA wrote Steve back, explaining correctly that FOIA does not require agencies to answer questions. The agency invited Steve to rewrite his request. Steve did not, but instead sued. The district court ruled Steve’s letter did not constitute a request for records, and thus that he had not exhausted administrative remedies. For that reason, the district court said, it lacked subject-matter jurisdiction to hear the case.

Last week, the 9th Circuit reversed. The Court ruled that because the goal of the FOIA was to provide government information to ordinary citizens, FOIA requests from citizens had to be construed liberally. Sure, Steve’s request was a hot mess, but the Court said Steve’s failure to reasonably describe the records he wanted went to the merits of his claim, and was not a jurisdictional issue.

The Circuit rejected the argument that the request had to reasonably describe the records sought to satisfy “exhaustion and exhaustion itself is jurisdictional,” the Circuit said, “we reject that argument as well. Significantly, FOIA does not expressly require exhaustion, much less label it jurisdictional, nor does FOIA include exhaustion in its jurisdiction-granting provision… Therefore, exhaustion cannot be considered a jurisdictional requirement.”

Yagman v. CIA, Case No. 15-55442 (9th Cir., Aug, 28, 2017)

LISAStatHeader2small
CALIFORNIA PWITD OFFENSE NOT CATEGORICAL, BUT NOT DRUG FELONY, EITHER

The enhancements on the catch-all federal drug offense, 21 USC § 841(b), are tough: any prior state “felony drug offense” can double the mandatory minimum, or even pop it up to life. The term “felony drug offense” is defined in 21 USC § 802(44) as “an offense that is punishable by imprisonment for more than one year… that prohibits or restricts conduct relating to narcotic drugs, marihuana, anabolic steroids, or depressant or stimulant substances.”

Luis Ocampo-Estrada had a prior conviction under Cal. Health & Safety Code 11378, a drug trafficking offense. California law makes the particular illegal drug an element of the offense, and federal courts used the modified categorical approach to determine whether the crime fits within the “felony drug offense” definition.

yellowpill170905The documents filed by the government showed that Luis had pled to an 11378 offense, but did not specify exactly what kind of drug was the basis for the conviction. The government has the burden to prove a prior conviction qualifies as a felony drug offense, but here offered only the abstract of judgment and the state-court minutes from the pronouncement of judgment, neither of which answered “the central question before us: whether Ocampo pleaded guilty to a controlled-substance element of § 11378, which is encompassed by the federal “felony drug offense” definition…”

United States v. Ocampo-Estrada, Case No. 15-50471 (9th Cir., Aug. 29, 2017)

LISAStatHeader2small
TWO STATE STATUTES GET MATHIS TREATMENT

The 8th Circuit last week ruled that the Wisconsin felony of battery of a law enforcement officer is categorically a crime of violence.

violent170315The defendant, Patrick Jones – who had been convicted of being a felon-in-possession of a firearm under 18 USC § 921(g) and the Armed Career Criminal Act, 18 USC 924(e) – argued that the Wisconsin statute’s definition of bodily harm includes “illness,” a person could be convicted under Wisconsin Statute 940.20(2) merely for attempting to give an officer a cold. But the Circuit found that Wisconsin cases provided “no realistic basis to conclude that courts would find such low-level conduct sufficient to support a conviction under the statute.” A theoretical possibility that a state may apply its statute to conduct falling short of violent force is not enough to disqualify a conviction; only a realistic probability will do.

The 8th said “The simple fact that the word “illness” is included in the definition of bodily harm is insufficient to render the statute overbroad.”

Meanwhile, 2,500 miles northwest of Minneapolis, the 9th Circuit sitting in Anchorage, Alaska, heard a case in which Dave Geozos – also sentenced under the ACCA – argued that his conviction for armed robbery in Florida was not a crime of violence. The Circuit agreed, holding first that the fact that a robbery is committed while carrying a gun does not make the offense any more violent, because the gun can remain concealed and unused. As for robbery, while it requires more force “than the force necessary to remove the property from the person. Rather, there must be resistance by the victim that is overcome by the physical force of the offender.” However, the amount of resistance can be minimal.

The 9th held that “neither robbery, armed robbery, nor use of a firearm in the commission of a felony under Florida law is categorically a ‘violent felony’. We recognize that this holding puts us at odds with the Eleventh Circuit, which has held, post-Johnson I, that both Florida robbery and (necessarily) armed robbery are ‘violent felonies’ under the force clause.”

The split could set up a Supreme Court review, if the government decides to push the issue. Meanwhile, prisoners with Florida robbery predicates may start figuring out how to get transferred to a joint in the 9th Circuit.

Jones v. United States, Case No. 16-3458 (8th Cir., Aug. 29, 2017)

United States v. Geozos, Case No. 17-35018 (9th Cir., Aug. 15, 2017)

– Thomas L. Root

LISAStatHeader2small

Supervised Release: The Neverending Nightmare – Update for January 20, 2017

Leave a comment

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

LISAStatHeader2small
WHAT’S IN A WORD?

Bob Cross is doing life by the installment plan. He caught a marijuana case (or marihuana, as the government would put it) 2006, and sentenced to 60 months in prison, followed by four years of supervised release.

groundhog170120In August 2010, Bob got out and started his supervised release term, which – for those of you who have had the enjoyment of crossing swords with the federal criminal justice system – is nothing but glorified parole, and a seemingly endless bad dream to boot. Essentially, during supervised release, an offender has to file a monthly report on a form that is as vague and all-encompassing as the federal criminal code itself, and must adhere to equally spongy conditions. Violating the conditions is as easy as walking out your front door in the morning, leaving an offender’s continued freedom pretty much at the mercy of his or her probation officer (and, of course, the court for which the probation officer works).

You’ve heard the old business aphorism, “The customer is always right?” See how that applies when you’re arguing to a district court that the opinion of a probation officer on whom the court relies for so much – and who is a judicial agency employee to boot – should be overruled. You may as well ask Donald Trump to overrule Melania or Ivanka.

right170120Sometimes, however, the violation is fairly obvious. It was for Bob. During his supervised release term, Bob caught state drug possession and theft cases, both of which of course violated his supervised release conditions.

The district court learned about the drug possession beef first, and revoked his supervised release in April 2013, ordering him to do 8 more months in prison and an additional two years of supervised release. In December 2013, Bob finished the 8 months in the cooler, and resumed his supervised release.

Fifteen months later, the district court finally tumbled to Bob’s 2012 theft conviction, and revoked his supervised release again. Apparently due to the age of the conviction and the fact it could have punished him before, the court sentenced him to a single day in jail and another five years of supervised release.

Bob appealed, arguing that the court had revoked his previous supervised release term when it gave him 8 months in prison, and that because it had revoked it, the court had no jurisdiction to revoke the new term for something – the theft – that had happened in the old term. On Wednesday, the 6th Circuit gave Bob a grammar lesson.

word160208The Circuit explained that, “revocation and termination of supervised release are distinct concepts. Termination discharges the defendant and thereby ends the district court’s supervision of him. Thus, if the district court later discovered that the defendant had earlier violated some condition of his supervised release, the court would lack authority to send him back to prison for that violation qua violation. Revocation, in contrast, means that the defendant must “serve in prison all or part of the term of supervised release. Thus, revocation does not terminate the defendant’s supervised release; quite the contrary, it requires him to serve “all or part” of it in prison… Revocation therefore revokes only the release part of supervised release; the district court’s supervisory authority continues until the defendant’s supervised release terminates or expires.”

The Court held that because the district court’s authority continues throughout an offender’s supervised release term, so too does the court’s ability to police violations of the release’s conditions. Here, Bob’s supervised release term – and the district court’s right to supervise it – had “neither terminated nor expired by June 2015.” Therefore, the district court could revoke Bob’s supervised release a second time based upon its discovery that he had committed a second violation, no matter where in the supervised release term it happened.

sword170120So Bob gets to live under the Sword of Damocles until summer 2020 (unless of course the district court finds another reason to prolong it even more). By then, Bob will be 15 years into a 5-year pot sentence.

United States v. Cross, Case No. 15-5641 (6th Cir. Jan. 18, 2017).

– Thomas L. Root

LISAStatHeader2small