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‘Great Occasions’, Predicate Crimes and the ACCA: The Supreme Court Speaks – Update for March 8, 2022

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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.

THREE CRIMES CAN BE ONE OCCASION, SUPREME COURT SAYS

louisianapurchase220308When Thomas Jefferson bought 530 million acres for $15 million in the Louisiana Purchase, he was violating his own sense of the proper limitations on federal authority.

The deal, however, was a steal: a lousy 3¢ an acre. It was just too good to pass up. Jefferson said at the time, “It is incumbent on those who accept great charges to risk themselves on great occasions.”

What if Jefferson’s purchase really was a steal, and he actually burgled 530 million acres from the French? Would he have committed a burglary on 530 million different occasions, or just 530 million burglaries at one time, on one “occasion?”

angels170726Talk about your angels on the head of a pin! But, arcane or not, this seemingly hyper-technical question yesterday – one with real-world consequences for many federal defendants – was addressed yesterday by the Supreme Court. A unanimous bench threw out an Armed Career Criminal Act sentencing enhancement for a man whose three predicate crimes of violence occurred during a single “occasion.”

The ACCA provides that the mandatory minimum sentence for a defendant convicted of an 18 USC 922(g) firearms offense – commonly known as felon-in-possession – is 15 years to life if the defendant has three prior serious drug offenses or crimes of violence. The statute – 18 USC 924(e) – holds that the three prior offenses must have occurred on “on occasions different from one another.”

The problem is that courts have taken an increasingly narrow view of what “different occasions” might be.

In 1997, Dale Wooden broke into a self-storage facility and burgled ten individual storage units. The State of Georgia convicted Dale of ten counts of burglary in a single state indictment. He received one sentence.

BettyWhiteACCA180503Seventeen years later, police found a gun in Dale’s house. The federal government charged him with felon-in-possession under 18 USC § 922(g)(1) and – because of the prior burglaries – prosecutors sought an enhanced ACCA sentence of 15 years. Absent the ACCA, Dale would have faced a Guidelines sentencing range of 27-33 months. He got 15 years (180 months).

Dale’s trial court held that each burglary occurred on a different occasion, because a new burglary did not occur until the old one had been completed. As a result, one night’s illegal frolic made Dale an armed career criminal.

Yesterday’s decision turned on the meaning of § 924(e). Justice Kagan, writing for the court, said Dale’s burglary convictions arose from a single criminal episode and thus did not count as multiple occasions. She complained that the government’s view that any time offenses occurred seriatim the occasions were separate gutted the “occasions different from one another” standard:

By treating each temporally distinct offense as its own occasion, the Government goes far toward collapsing two separate statutory conditions. Recall that ACCA kicks in only if (1) a §922(g) offender has previously been convicted of three violent felonies, and (2) those three felonies were committed on “occasions different from one another.” §924(e)(1). In other words, the statute contains both a three-offense requirement and a three-occasion requirement. But under the Government’s view, the two will generally boil down to the same thing: When an offender’s criminal history meets the three-offense demand, it will also meet the three-occasion one. That is because people seldom commit—indeed, seldom can commit—multiple ACCA offenses at the exact same time. Take burglary. It is, just as the Government argues, “physically impossible” for an offender to enter different structures simultaneously. (citation omitted). Or consider crimes defined by the use of physical force, such as assault or murder. Except in unusual cases (like a bombing), multiple offenses of that kind happen one by one by one, even if all occur in a short spell. The Government’s reading, to be sure, does not render the occasions clause wholly superfluous; in select circumstances, a criminal may satisfy the elements of multiple offenses in a single instant. But for the most part, the Government’s hyper-technical focus on the precise timing of elements—which can make someone a career criminal in the space of a minute—gives ACCA’s three-occasions requirement no work to do.

burglar160103Justice Kagen as well argued that the history of the ACCA supported her view. For the first four years of its existence, the “ACCA asked only about offenses, not about occasions. Its enhanced penalties, that is, kicked in whenever a §922(g) offender had three prior convictions for specified crimes—in the initial version, for robbery or burglary alone, and in the soon-amended version, for any violent felony or serious drug offense.” But after a court enhanced a sentence under the ACCA for six burglaries committed at once (see Petty v. United States, 481 U.S. 1034, 1034-1035 (1987), Congress amended ACCA to add the occasions clause, requiring that the requisite prior crimes occur on “occasions different from one another.” 

Yesterday’s decision was unanimous, although four justices — Clarence Thomas, Samuel Alito, Neil Gorsuch, and Amy Coney Barrett — declined to join some of Kagan’s opinion, meaning they disagreed with some of her reasoning.

So how does a court tell whether the occasions are different or the same? Kagan called the inquiry that must be made “multi-factored in nature.” She wrote

Ontime160103Timing of course matters, though not in the split-second, elements-based way the Government proposes. Offenses committed close in time, in an uninterrupted course of conduct, will often count as part of one occasion; not so offenses separated by substantial gaps in time or significant intervening events. Proximity of location is also important; the further away crimes take place, the less likely they are components of the same criminal event. And the character and relationship of the offenses may make a difference: The more similar or intertwined the conduct giving rise to the offenses—the more, for example, they share a common scheme or purpose—the more apt they are to compose one occasion.

For the most part, applying this approach will be straightforward and intuitive. In the Circuits that have used it, we can find no example (nor has the Government offered one) of judges coming out differently on similar facts. In many cases, a single factor—especially of time or place—can decisively differentiate occasions. Courts, for instance, have nearly always treated offenses as occurring on separate occasions if a person committed them a day or more apart, or at a “significant distance.” (citation omitted). In other cases, the inquiry just as readily shows a single occasion, because all the factors cut that way. That is true, for example, in our barroom-brawl hypothetical, where the offender has engaged in a continuous stream of closely related criminal acts at one location. Of course, there will be some hard cases in between, as under almost any legal test. When that is so, assessing the relevant circumstances may also involve keeping an eye on ACCA’s history and purpose…

So where an ACCA defendant (as in one case with which I am familiar) broke into a strip mall and burgled one store, then pushed through the wall to another, it will be pretty easy to claim it was one occasion. In another case I worked on once, the defendant sold crack on the same street corner, was arrested for three undercover buys in 16 days. Different occasions? That one will be a lot closer.

Because yesterday’s decision interprets a statute, it will be retroactive on collateral review, meaning that people already convicted of an ACCA offense may challenge their sentence. Expect a wave of post-conviction litigation arising from this decision, in large part because the government has been so heavy-handed in charging ACCA enhancements where a more prudent prosecuting authority might not have been.

Wooden v. United States, No. 20-5279, 2022 U.S. LEXIS 1421 (March 7, 2022)

SCOTUSBlog, Court rejects enhanced sentence under Armed Career Criminal Act for man who broke into storage facility (March 7, 2022)

– Thomas L. Root

Supreme Court Adds Drug, Bivens Cases to Docket – Update for November 10, 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.

SCOTUS TO HEAR BIVENS, ‘PILL MILL’ CASES

policeraid170824Fifty years ago, the Supreme Court ruled in Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics that a person could sue federal agents and employees for violating his or her constitutional rights, even when there was not a specific law authorizing such a suit. (Bivens had its genesis in agents kicking down the door to Webster Bivens’ apartment, searching it and arresting him on drug charges, all without a warrant. The charges were later dismissed, and Webster was held to have the right to sue the agents for money damages arising from their violation of his 4th Amendment rights.

Since then, the Supreme Court recognized Bivens claims for damages for violations of the 4th, 5th and 8th Amendments, but in 2017 froze things by holding in Ziglar v. Abbasi that “expanding the Bivens remedy is now a disfavored activity.”

Last Friday, the justices agreed to decide in whether a Bivens remedy should be available to the owner of an inn on the US-Canada border who complained a Border Patrol agent violated both his 1st and 4th Amendment rights, while declining to reconsider Bivens itself.

feelgood211019The Court also granted certiorari in Ruan v. United States and Kahn v. United States, consolidating those cases to decide whether when the government prosecutes a doctor under 21 USC § 841 for issuing a prescription outside “the usual course of professional practice,” the government must also prove that the doctor knew or intended that the prescription be outside the scope of professional practice. The Court will also decide whether a “good faith” defense protects doctors who have an honest but mistaken belief that they have issued professional practice.”

Those cases relate to so-called pill mills, where doctors allegedly dispense opioids to patients much too freely to feed addictions rather than for a medical purpose. The Supreme Court will consider where the line is to be drawn between doctor discretion – especially in experimenting with pain management techniques – and garden-variety illegal drug dealing.

Egbert v. Boule, Case No 21- 147 (certiorari granted November 5, 2021)

Ruan v. United States, Case No 20-1410 (certiorari granted November 5, 2021)

Kahn v. United States, Case No 20-5261 (certiorari granted November 5, 2021)

– Thomas L. Root

SCOTUS May Be Looking at ‘Pill Mill’ Pusher Standards – Update for October 19, 2021

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TRIPLE RELIST SUGGEST LIKELY SCOTUS REVIEW OF ‘PILL MILL’ STANDARDS

feelgood211019In Supreme Court-speak, a “relist” is a petition for certiorari that is neither granted nor denied, but rather held over for consideration at a subsequent conference of justices, some with the court issued a “CVSG” (a “call for the views of the Attorney General”). A petition is usually “relisted” because of debate among the justices as to its merit. With only four votes required for grant of certiorari, being “relisted” substantially increases the chances that a petition will be granted, and the case set for briefing. 

According to one academic study, a petition in a non-pauper case (in which the petitioner is able to pay the usual $300 filing fee) “is over 46 times more likely to be granted following a CVSG.” Every relisted case is back to be considered another time at the next conference.

Last week, SCOTUS set three petitions – all of which raise the same question – for a second relist. The Court will consider whether to hear the trio at its next conference, set for October 29th. If certiorari is granted, it could alter felony drug distribution cases involving physicians.

Currently, a physician can be convicted of dispensing controlled substances in violation of 21 USC 841(a) if the dispensing is “outside the usual course of professional practice” or “for other than a legitimate medical purpose. ” In Naum v. United States and Coonce v. United States, the question raised is whether the government may merely prove it was either one – “outside the usual course of professional practice” – or the other – for other than a legitimate medical purpose – but not necessarily both.

In Ruan v. United States, the question is related. To ensure that physicians are not convicted for merely negligent conduct, courts generally permit doctors to advance a “good faith” defense. Ruan asks whether a physician alleged to have prescribed controlled substances outside the usual course of professional practice may be convicted under 841(a)(1) without regard to whether, in good faith, he or she “reasonably believed” or “subjectively intended” that his prescriptions fall within that course of professional practice.

Naum v. United States, Case No 20-1480 (cert pending)
Coonce v. United States, Case No 20-7934 (cert pending)
Ruan v. United States, Case No 20-1410 (cert pending)

– Thomas L. Root

Happy New Year! – Update for October 4, 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.

WE’RE BA-A-A-CK…

happynewyear211004… the nine Supreme Court justices will say this morning, the first Monday in October and the first day of the Court’s new year. The high court begins its new term – which lasts until June 30, 2022 but is known as “October Term 2021” – with hearing arguments on one federal criminal issue and granting review to another.

First, the grant of certiorari. Last week at its annual “long conference,” where the Court disposed of over 1,200 petitions seeking review of lower court decisions, the Supremes granted review to a First Step Act case. Back when Congress passed the Fair Sentencing Act of 2010 to reduce the disparity crack and powder cocaine sentences, it did not make the Fair Sentencing Act retroactive to the thousands of crack sentences already imposed.

In Section 404 of the 2018 First Step Act, Congress granted retroactivity at the discretion of the defendant’s sentencing judge, but did not specify any standards for the judge to apply in deciding whether to reduce a sentence. The question raised in Concepcion v. United States is whether, when a court is deciding whether to resentence a defendant under the Fair Sentencing Act, the court must or may consider intervening developments (such as prison record or rehabilitation efforts), or whether such developments only come into play (if at all) only after courts conclude that a sentence reduction is appropriate.

FSAsplit190826

The 3rd, 4th, 10th, and DC circuits have held that district courts must consider all subsequent facts, and not just the changes to statutory penalties, when conducting Fair Sentencing Act resentencings. But in the 1st, 2nd, 6th, 7th and 8th circuits are only required to adopt the revised statutory maximum and minimum sentences for crack cocaine spelled out in the Fair Sentencing Act. In the 5th, 9th, and 11th circuits, district courts are prohibited from considering any intervening case law or updated sentencing guidelines, and are not required to consider any post-sentencing facts during resentencings.

Don’t expect a decision before June 2022.

Now, for today’s argument. The Supreme Court will begin its term hearing argument in Wooden v United States. Defendant Wooden broke into a storage facility and stole from 10 separate storage units many years ago. When he was found in possession of a gun years later, the district court sentenced him under the Armed Career Criminal Act to 15 years, because it found that he committed three violent offenses – the breaking into the 10 storage units – “on occasions different from one another.” The Court of Appeals agreed, arguing that the crimes were committed on separate “occasions” because “Wooden could not be in two (let alone ten) of [the storage units] at once.”

BettyWhiteACCA180503This has long been the worst aspect of the ACCA, itself as well-meaning but lousy law. A number of circuits hold that crimes are committed on different “occasions” for ACCA purposes when they are committed “successively rather than simultaneously.” Other circuits, however, looked beyond temporality and instead considered whether the crimes were committed under sufficiently different circumstances.

The Supreme Court will resolve the Circuit split. A decision is expected early next year, and – if the Court agrees defendant Wooden, a number of people serving ACCA sentences may be filing 28 USC § 2255 or 28 USC § 2241 petitions seeking reduced sentences.

Wooden v. United States, Case No. 20-5279 (Supreme Ct., argued Oct 4, 2021)

Concepcion v. United States, Case No. 20-1650 (Supreme Ct., certiorari granted Sep 30, 2021)

Law360, Supreme Court Will Seek To Solve Crack Resentencing Puzzle (September 30, 2021)

SCOTUSBlog.com, What’s an “occasion”? Scope of Armed Career Criminal Act depends on the answer. (October 1, 2021)

– Thomas L. Root

Supremes Leave Behind Busy Fall Docket as They Take Summer Break – Update for July 6, 2021

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UNFINISHED BUSINESS

The Supreme Court wrapped up a fairly lackluster October Term 2020 last Thursday, having delivered little of merit in the criminal law area other than Borden v. United States. But the nine justices left a teaser or two as they headed in various directions for a three-month vacation.

hobbsact200218On Thursday, the Court granted review to United States v. Taylor, a 4th Circuit decision holding that attempted Hobbs Act robbery is not a crime of violence for purposes of 18 USC § 924(c) and the Armed Career Criminal Act. The 4th’s decision created a Circuit split – four other circuits hold that an attempted Hobbs Act robbery is a crime of violence – leading the government to seek certiorari. The split – and the fact that the government usually gets its way when it asks for discretionary review – probably convinced the Supreme Court to hear the case, which will be argued late this year.

The Supreme Court left town without deciding whether to review Bryant v. United States, the 11th Circuit holding that prohibits using the compassionate release statute to challenge excessive sentences. Seven other circuits have held that the narrow grounds for 18 USC § 3582(c)(1)(A)(i) motions listed in Guidelines policy statement § 1B1.13 do not limit compassionate release motions brought by inmates, but only when such motions are brought by the Bureau of Prisons. (Remember the last time one of those was filed by the BOP?) Only the 11th Circuit – no surprise there – holds that § 1B1.13 still governs such motions.

longconf210706

The Bryant petition is on relist, and certiorari won’t be decided until the first conference of the new court year – known as the “long conference” – set for the last week of September 2020.

United States v. Taylor, Case No 20-1459, (certiorari granted July 1, 2021)

Bryant v. United States, Case No 20-1732 (petition for cert pending)
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– Thomas L. Root

Ginsburg’s Death Leaves Washington in Turmoil, Stimulus in Doubt – Update for September 21, 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.

TOP OF THE NEWS

Supreme Court Justice Ruth Bader Ginsburg died Friday, leaving a vacancy on the Court that the Republicans have vowed to fill quickly (in the face of virulent Democratic opposition).

Justice Ginsburg’s many accomplishments will be written about by many in the coming days, but prisoners might recall that she was the sole justice to vote with both majority opinions in United States v. Booker: she was the fifth vote in a 5-4 decision holding the mandatory sentencing guidelines unconstitutional and she was the fifth vote for the separate Booker opinion making the guidelines advisory. Her two votes gave us the advisory guideline system that has now defined the federal sentencing system for 15 years.

Ginsburg200921The Senate must confirm a presidential appointment for the Supreme Court. If the Republicans fill the seat, the likelihood is remote that the Court would get another Justice as friendly to reasonable interpretation of criminal justice issues.

Plus, approving a new Supreme Court pick tosses another task into the Senate’s basket for the few remaining legislative days in the session, making the passage of any COVID-19 stimulus bill that might contain provisions improving CARES Act release and compassionate release even less likely.

Last week, President Trump called on the Senate to compromise with the House on getting a stimulus package. Senate Republicans immediately threw cold water on his proposal. “This used to be the White House versus Pelosi up until about now — now the president’s coming in and saying we can maybe go to $1.5 trillion,” Senate Finance Chairman Chuck Grassley told Bloomberg on Thursday. “He better be careful of that because I don’t think that will get through the United States Senate.”

Sentencing Law and Policy, In (sentencing) memoriam: noting a few major sentencing majority opinions by Justice Ginsburg (September 19, 2020)

Bloomberg, Trump’s Shift on Stimulus Leaves Republicans Skeptical, Divided (September 17, 2020)

– Thomas L. Root

59(e) Motion Not A Trap for the Unwary: Supreme Court – Update for June 2, 2020

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SUPREME COURT HOLDS 59(e) MOTION IS NOT A SECOND BITE OF THE HABEAS APPLE

For the last 2 years, prisoners seeking one final whack at the lawfulness of their convictions or sentences have had to contend with the limitations of a law known by the mouthful “Antiterrorism and Effective Death Penalty Act of 1996.”

secondbiteapple190213Even the name of the Act is strange. No one can be opposed to “antiterrorism.” Well, almost no one. But “effective death penalty?” I suppose an effective death penalty is one that leaves you dead. But what Congress was getting at here was a means of limiting what some lawmakers thought were endless habeas corpus actions brought by the condemned, so that their date with the Grim Reaper could be delayed as long as possible. The AEDPA was intended to limit such collateral attacks, so that execution was more likely to kill the prisoner than old age.

But the practical effect of the AEDPA was to severely limit the right of prisoners to the federal writ of habeas corpus. The Act set hard time limits on filing motions under 28 USC 2254 (for state prisoners seeking federal habeas relief) and 28 USC 2255 (for federal prisoners), and – important for today’s topic – the right to bring a second 2254/2255 motion after the first one has been decided.

There was a time when a prisoner could file as many 2254 or 2255 motions (known as “second-or-successive” motions) as a court would accept before concluding that the prisoner was “abusing the writ.” But the AEDPA turned the equitable and flexible “abuse of the writ” doctrine into a rigid statutory rule. Now, a prisoner seeking to file a second-or-successive 2255 motion must first get permission to do so from the court of appeals, and the circumstances under which permission can be granted are tightly circumscribed by 28 USC 2244.

But water seeks and finds its own level, and in the wake of the AEDPA’s passage, crafty prisoners filed all manner of other motions instead of second-or-successive 2255s. They would file petitions for writs of mandamus or error coram nobis or audita querela, or Rule 60(b) motions, or civil actions. The courts would whack down the efforts as fast as the prisoners filed them, holding that a motion by any other name was in effect a second-or-successive 2255 if it attacked the conviction or sentence in some manner.

whack200602In civil procedure, a motion brought under Federal Rule Civil Procedure 60(b) asks a court to set aside a judgment that is already final, based on any of a variety of reasons (the favorite one probably being due to newly-discovered evidence). Rule 60(b) quickly became an inmate favorite, letting the movant try to reopen a former 2255 proceeding well after the fact because of evidence of some new constitutional violation or even just more evidence on an issue already raised and lost. In 2005, the Supreme Court ruled in Gonzalez v. Crosby that such a motion was really a second-and-successive 2255 prohibited by the AEDPA unless the motion was solely addressed to some infirmity in the 2255 proceeding itself.

Fast forward 15 years to yesterday. Texas prisoner Greg Banister lost his 28 USC 2254 proceeding, in which he challenged his state conviction in federal court after losing in all of the Texas courts. He lost in front of the federal district judge, too, but – having access to both a book of federal civil rules and a typewriter – Greg promptly filed a motion to alter or amend the judgment under Federal Rule of Civil Procedure 59(e). Rule 59(e) gives a party one more chance to convince the district court it was wrong in its judgment, and it stops a judgment from becoming final as long as it was filed on time and remains pending.

jailhouselaw160809

The federal judge, not any more impressed by Greg’s Rule 59(e) motion than it had been by the underlying 2254 petition, denied the motion. Greg then filed his notice of appeal. However, the district court ruled that the Rule 59(e) motion had really been a second-or-successive 2254 motion over which the court had no jurisdiction. Therefore, the court said, the Rule 59(e) motion had not kept the court’s judgment from becoming final the day it was entered, and that meant that Greg’s notice of appeal – which would have been timely if Greg’s Rule 59(e) filing had stayed finality of the judgment – was late.

The Fifth Circuit agreed with the trial judge. Thus, Greg was denied his appeal.

Yesterday, the Supreme Court reversed the decision. Justice Kagan, writing for a 7-2 court, observed that the case “is about two procedural rules. First, Rule 59(e) applies in federal civil litigation generally. (Habeas proceedings, for those new to the area, are civil in nature)… The Rule enables a party to request that a district court reconsider a just-issued judgment. Second, the so-called gatekeeping provision of the… AEDPA, codified at 28 USC §2244(b), governs federal habeas proceedings. It sets stringent limits on second or successive habeas applications.”

habeas170510The Supreme Court observed that even under the old “abuse of the writ” standard, courts had historically considered Rule 59(e) motions filed in habeas corpus cases on their merits. Plus, a prisoner may invoke Rule 59(e) only to request “reconsideration of matters properly encompassed” in the challenged judgment. And, the Court said, “’reconsideration’ means just that: Courts will not entertain arguments that could have been but were not raised before the just-issued decision. A Rule 59(e) motion is therefore backward-looking; and because that is so, it maintains a prisoner’s incentives to consolidate all of his claims in his initial application.”

As well, the Rule consolidates appellate proceedings. “A Rule 59(e) motion briefly suspends finality to enable a district court to fix any mistakes and thereby perfect its judgment before a possible appeal,” Justice Kagan wrote. “The motion’s disposition then merges into the final judgment that the prisoner may take to the next level. In that way, the Rule avoids ‘piecemeal appellate review’… Its operation, rather than allowing re-peated attacks on a decision, helps produce a single final judgment for appeal.”

The Court contrasting the speed and efficiency of a Rule 59(e) motion with a Rule 60(b) motion, which can be filed years after the judgment. The availability of a Rule 60(b) motion “threatens serial habeas litigation; indeed, without rules suppressing abuse, a prisoner could bring such a motion endlessly. By contrast, a Rule 59(e) motion is a one-time effort to bring alleged errors in a just-issued decision to a habeas court’s attention, before taking a single appeal. It is a limited continuation of the original proceeding—indeed, a part of producing the final judgment granting or denying habeas relief. For those reasons, Gonzalez does not govern here.”

Banister v. Davis, Case No. 18–6943, 2020 U.S. LEXIS 3037 (Supreme Court, June 1, 2020)

– Thomas L. Root

BOP Misses a Base, and SCOTUS Calls the Agency Out – Update for May 27, 2020

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BUT WAIT, THERE’S MORE…

More in the continuing saga of Judge James Gwin versus FCI Elkton – in which the Cleveland-based Federal Judge issued a preliminary injunction against the Federal Bureau of Prisons facility because the conditions of confinement of inmates especially vulnerable to COVID-19 was likely to constitute “deliberate indifference” (a term loaded with 8th Amendment implications)… and the BOP ran to the Supreme Court to complain about an (allegedly) out-of-control federal district court.

yerout200527Yesterday, the Supreme Court denied the BOP’s request that it stay the Judge’s injunction by a 6-3 vote. It reminded me of my Little League umpiring days… an exuberant base runner chugging around the diamond on his way to a home run misses touching second base by a foot or so. When he makes it to home, I have to call him out. A lot of parents boo.

Like that, the Supreme Court called the BOP out on an obvious blunder: the BOP effectively wanted a stay of last Tuesday’s District Court order that directed it to take specific steps to get Elkton inmates moving to home confinement. But the BOP did not seek a stay in the Court of Appeals first. Like base running, you can’t get away with crossing home plate if you don’t tag all of the preceding bases.

Practically speaking, the Supremes’ denial means that the District Court’s demand that the BOP actually address its disastrous management of COVID-19 at FCI Elkton may proceed unimpeded.

Last month, as I described at the time, Judge James Gwin of the U.S. District Court for the Northern District of Ohio granted a preliminary injunction ordering BOP officials at FCI Elkton (located about 70 miles southeast of Cleveland) to identify, and then to start transferring or releasing to home confinement medically vulnerable prisoners. The BOP promptly appealed this order to the U.S. Court of Appeals for the Sixth Circuit, but the Sixth bounced the appeal in a brief order finding that Judge Gwin had not abused his discretion.

slowroll200421After that (at least according to the plaintiffs and Judge Gwin) the BOP slow-walked the identification and transfer of vulnerable inmates. After all, judges retire, pandemics fade… if the agency could only do nothing long enough, the problem might take care of itself.

A week ago, Judge Gwin had had enough, and let the BOP know it. Finding that that BOP had not complied with his directive from last month to clear out Elkton in order to protect vulnerable people from the spread of coronavirus (which has already killed nine Elkton inmates and 64 federal inmates nationally), the Judge said the BOP had “made only minimal effort to get at-risk inmates out of harm’s way.” As of May 8, 2020, five subclass members were “pending [home confinement] community placement. Six inmates were identified as maybe qualifying for home confinement. No inmates were deemed eligible for furlough transfer. But to date, Respondents have not identified any inmates whose confinement has actually been enlarged as a consequence of the preliminary injunction.”

The Judge ordered the BOP to loosen requirements on who qualifies for placement on home confinement under the Bureau’s CARES Act authority by

• eliminating requirements about length of his or her sentence an inmate has served (reversing the BOP’s position that an inmate had to have served 50% of his or her entire sentence, or 25% and have less than 18 months to go, in order to be eligible);

• disregarding whether they committed had certain low or moderate offenses within the past 12 months (reversing the BOP’s position that any disciplinary report in the past 12 months – from possessing a shank or taking an apple from the chow hall to eat later) – was automatically disqualifying);

• eliminating a BOP requirement that the inmate be a U.S. citizen in order to get CARES Act home confinement placement;

• eliminating the requirement that an inmate with a “low” PATTERN risk score be denied CARES Act home confinement placement; and

• disregarding the fact that an inmate is serving time for a “violent” crime (and “violence” is being defined more broadly by the BOP than by any other government agency interpreting federal law) if the crime occurred more than five years ago.

The Court instructed the BOP to explain in detail to the court why any inmate was denied CARES Act placement or Bureau recommendation for compassionate release furloughed or moved to another facility, the prisons bureau must also explain why.

The judge’s order observed that “[b]y thumbing their nose at their authority to authorize home confinement, Respondents threaten staff and they threaten low security inmates.”

Calvin thumb on nosePreviously, the BOP had tried without success to get the Sixth Circuit to stay the injunction. After last week’s order from the Judge spelling out what Elkton was to do right away, the BOP an application for a Supreme Court stay of Judge Gwin’s preliminary injunction “pending appeal of that injunction to the United States Court of Appeals for the Sixth Circuit and, if the court of appeals affirms the injunction, pending the filing and disposition of a petition for a writ of certiorari and any further proceedings in this Court.”

The problem with the BOP’s Supreme Court filing was evident from the get-go. Although it claimed to be seeking a stay of the April injunction, the BOP spent much of its brief complaining about last Tuesday’s order. As the inmate plaintiffs cheerfully pointed out in their response filed last Friday, the BOP had never asked the Sixth Circuit to review last week’s order, and jumping the appeals court to straight to SCOTUS is not allowed.

Yesterday, the Supremes agreed, but with a caveat:

[O]n May 19, the District Court issued a new order enforcing the preliminary injunction and imposing additional measures. The Government has not sought review of or a stay of the May 19 order in the U.S. Court of Appeals for the Sixth Circuit. Particularly in light of that procedural posture, the Court declines to stay the District Court’s April 22 preliminary injunction without prejudice to the Government seeking a new stay if circumstances warrant.

The Care Bears did not mean the Court cared much for the BOP's application for stay...
          The Care Bears did not mean the Court cared much for the BOP’s application for stay…

The Court seemed to be leaving the door open a crack, inviting the BOP to come back if it was unsuccessful in getting the Court of Appeals to stay the latest order.

Justices Thomas, Alito and Gorsuch voted to grant the stay, meaning that Chief Justice Roberts, Kavanaugh, Breyer, Ginsburg, Kagan and Sotomayor were in the majority, denying the stay.

Williams v. Wilson, Case No. 19A-1041, 2020 U.S. LEXIS 2951 (Supreme Court, May 26, 2020)

– Thomas L. Root

SCOTUS Says 5th Circuit Plainly Erred – Update for March 24, 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.

SUPREME COURT REBUKES 5TH CIRCUIT’S OUTLIER “PLAIN ERROR” STANDARD

Chuck Davis failed to complain when the district court made his federal sentence consecutive to a state sentence that was imposed for the same course of conduct. On appeal, however, he raised the issue under the “plain error” standard.

error161101“Plain error” under Rule 52(b) of the Federal Rules of Criminal Procedure is a standard which is tougher to meet than the usual standard of review when a defendant has raised an objection below, but still one that can be met in some cases. It holds that an error that a defendant failed to raise in the trial court cannot be entertained on appeal unless it relates to a district court error that was plain (obvious), that affected the defendant’s substantial rights, and is such that it affects the integrity of the criminal justice system.

That’s a tough standard in and of itself, but the 5th Circuit has traditionally added its own gloss: if the error depended on facts that could have been raised in the trial court, it does not meet the standard. Under this cobbled-on addition to “plain error,” the 5th Circuit refused to entertain Chuck’s argument at all. The Circuit does not permit plain-error review where a defendant’s argument raised factual issues that could have been raised in the district court, because “questions of fact capable of resolution by the district court upon proper objection at sentencing can never constitute plain error.”

By contrast, almost every other Court of Appeals in America conducts plain-error review of unpreserved arguments, including unpreserved factual arguments.

Plain error in real life...
                              Plain error in real life…

Yesterday, the Supreme Court said that the 5th Circuit had to do so as well. Rule 52(b) holds that “a plain error that affects substantial rights may be considered even though it was not brought to the court’s attention.”  The Supreme Court said the “text of Rule 52(b) does not immunize factual errors from plain-error review. Our cases likewise do not purport to shield any category of errors from plain-error review… Put simply, there is no legal basis for the Fifth Circuit’s practice of declining to review certain unpreserved factual arguments for plain error.”

Chuck’s case was remanded to the 5th Circuit for plain-error review.

Davis v. United States, Case No. 19-5421 (Supreme Court, Mar. 23, 2020)

– Thomas L. Root

Parsimonious Supreme Court Says Little in Sentencing Reasonableness Case – Update for March 4, 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.

HOLGUIN-HERNANDEZ BRINGS FORTH A MOUSE

mouse200304Last year, when the Supreme Court granted review in Holguin-Hernandez v. United States, many commentators had high hopes that the high court would relax the requirements for people seeking appellate review of sentence reasonableness. After all, it has been almost a decade since the Court last spoke on the subject.

But that was not to be. Last week, the Court found for the defendant while saying about as little as possible.

The defendant was sentenced to 60 months for pot distribution, and because he was on supervised release from a prior drug offense, a revocation sentence of an additional 12 months. The defendant argued the sentence was unreasonably high, but his attorney did not renew the objection after the sentence was pronounced (a ritualistic requirement imposed by a number of circuits). Because of that oversight, the 5th Circuit only reviewed the reasonableness argument under the relaxed “plain error” standard, and affirmed the longer sentence.

The Supremes held for the defendant. “Petitioner’s district-court argument for a specific sentence (nothing or less than 12 months) preserved his claim on appeal that the sentence imposed was unreasonably long,” Justice Breyer wrote. “A party who informs the court of the ‘action’ he ‘wishes the court to take…’ ordinarily brings to the court’s attention his objection to a contrary decision. That is certainly true where, as here, the defendant advocates for a sentence shorter than the one actually imposed… A defendant who, by advocating for a particular sentence, communicates to the trial judge his view that a longer sentence is ‘greater than necessary’ has thereby informed the court of the legal error at issue in an appellate challenge to the substantive reasonableness of the sentence.”

object170724Unfortunately, the hyper-technical circuit policy that lets a defendant argue for hours against imposition of a Guideline enhancement, but holds that if he or she does not make a further objection after the judge decides to add the enhancement anyway, the argument is forfeited, applies to a lot of sentencing issues besides reasonableness. The Court provided a lot of persuasive arguments against the policy, but stopped short of throwing it out for issues other than sentence reasonableness.

Holguin-Hernandez v. United States, 2020 U.S. LEXIS 1365 (Feb. 26, 2020)

– Thomas L. Root