Tag Archives: USSC

First Step Act Beneficiaries By The Numbers – Update for January 25, 2019

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

SENTENCING COMMISSION RELEASES FIRST STEP CHECKLIST, IMPACT STUDY

imageThe Romans had a phrase for it: “Cui bono?” Last week, the U.S. Sentencing Commission tried to answer that question about the First Step Act.

The extra seven days of good time granted by the Act will benefit the most inmates, about 142,500 federal prisoners (79% of the 180,390 federal prison population), excluding only people with life sentences or sentences of less than a year and a day (which are ineligible for good time under 18 USC 3624[b][1]). The earned time credit the Act awards for completing programs that reduce recidivism is in second place. The Commission estimates that it will benefit about 106,000 eligible inmates (about 59% of the population).

The retroactive Fair Sentencing Act provision of the First Step Act only touches about 2,660 inmates, but it has an outsized effect on racial disparity: 90% of whom are black.

elderly180517The elderly offender home detention program expanded by the Act has 1,880 inmates who are currently eligible (the right age, right offenses and right amount of time served). Of course, the EOHD program, unlike the other First Step programs, will see an influx of additional inmates who reach the right age and service of sentence.

The Commission also issued an 8-page fact sheet answering questions about implementing the sentencing portions of First Step. In it, the USSC notes that First Step requires no changes in the Guidelines (which is a good thing because the 7-member Commission is down to only two voting members, leaving it unable to approve any new Guidelines until the Senate approves additional commissioners).

USSC, Sentence and Prison Impact Estimate Summary (Jan. 18)

USSC, ESP Insider Express: First Step Act (Jan. 18)

– Thomas L. Root

USSC Commentary Can’t Expand Guideline Coverage? – Update for November 1, 2018

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

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GUIDELINES “CAREER OFFENDER” COMMENTARY GOES TOO FAR, 6TH CIRCUIT SUGGESTS

Jeff Havis attacked his sentence for gun possession by arguing that a prior Tennessee conviction for selling or delivering cocaine should not count as a “controlled substance offense” under the Guidelines to increase his base offense level. The 6th Circuit last week said it was foreclosed by a prior panel decision that the Tennessee offense did count under the Guidelines, and thus could not give Jeff the relief he wanted.

But remarkably, the opinion does not stop there. Instead, it held that Jeff’s complaint “has legs” despite a panel opinion to the contrary. Thirty years ago, the Supreme Court found the Guidelines not to violate the constitutional separation-of-powers doctrine in Mistretta v. United States, because Congress has a chance to review amendments before they take effect and the United States Sentencing Commission must comply with the notice-and-comment requirements of the Administrative Procedure Act when it adopts them.

Is Sentencing Commission commentary not the last word?
Is Sentencing Commission commentary not the last word?

This is crucial, because Tennessee’s drug trafficking statute includes “attempts” to violate the statute within its definition, something the Guidelines does not include in its text. Thus, the Tennessee law is broader than the Guidelines, meaning the Tennessee statute should not count as a controlled substance offense. However, in the commentary to the Guidelines, the USSC expanded the Guidelines definition to include attempts.

This is a problem, the Circuit said. The procedural requirements governing amendment of Guidelines “are one piece of a larger puzzle. If the Commission can add to or amend the Guidelines solely through commentary, then it possesses a great deal more legislative power than Mistretta envisioned. This means that in order to keep the Sentencing Commission in its proper constitutional position — whatever that is exactly — courts must keep Guidelines text and Guidelines commentary, which are two different vehicles, in their respective lanes.

The 6th Circuit panel quietly begged Jeff to seek en banc review to overturn the prior precedent, and to put USSC commentary into limited role it should occupy.

United States v. Havis, Case No. 17-5772 (6th Cir. Oct. 22, 2018)

– Thomas L. Root

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2018 Guideline Amendments… The Rest of the Story – Update for April 17, 2018

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

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2018 GUIDELINE AMENDMENTS HARD ON SYNTHETICS, EASIER ON PROBATION

As we reported last Friday, the U.S. Sentencing Commission killed the First Offender proposal by neglect, never mentioning it during the half-hour meeting last week at which the USSC adopted a slate of new amendments to the Guidelines Manual to be sent to Congress.

khat180417That’s not to say, however, that the Commissioners did nothing. They did vote to update the federal sentencing guidelines to address synthetic drugs. The amendments addressed synthetic cathinone (the active drug in African khat, used in bath salts) and synthetic cannabinoids, including K2. To address fentanyl, the USSC adopted a four-level sentencing enhancement for knowingly misrepresenting or knowingly marketing fentanyl or fentanyl analogues as another substance (a 50% increase in sentence).

release180417The Commission also adopted a new application note suggesting judges consider alternative sentencing options to prison for “nonviolent first offenders” whose applicable guideline range falls at 8-14 months or less. Eligible defendants must not have any prior convictions and must not have used violence, credible threats of violence, or possessed a firearm or other dangerous weapon in the offense. The alternatives include probation, halfway house confinement and house arrest.

The USSC also increased offense levels for certain Social Security fraud offenses to incorporate statutory changes, and adopted a non-exhaustive list of factors that courts may consider in determining whether a prior Indian tribal court conviction warrants an upward departure from the recommended sentencing range.

Nothing in the proposed amendments, which will be effective November 1, 2018, applies to people who have already been sentenced.

U.S. Sentencing Commission, Amendments to the Sentencing Guidelines (Preliminary) (Apr. 12, 2018)

– Thomas L. Root

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Not With a Bang But A Whimper Does ‘First Offender’ Die – Update for April 13, 2018

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

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SENTENCING COMMISSION DOES NOTHING ON FIRST OFFENDER PROPOSAL

In a half-hour meeting ending yesterday, the U.S. Sentencing Commission promulgated amendments which will become effective on November 1, 2018, unless Congress blocks their effectiveness. As expected, the Commission proposed tough new sentencing guidelines for synthetic drugs like fentanyl. But not as anticipated, the USSC mentioned nothing about its ballyhooed First Offender Proposal.

planethype180413Last year, the Commission proposed a “First Offender” amendment, one that would give additional Guidelines benefit to people with pure criminal records. The USSC proposed that the virgins of the criminal world – people who had no prior convictions – get bonus points for a prior record that’s even better than Crim I.

For prisoners, the proposal has been the most hyped change in the Guidelines since the 2014 drug table amendments, despite the fact that its retroactivity was in doubt. Yet at yesterday’s meeting, without a single mention, the Commission adjourned without acting on the proposal.

As we have reported, if President Trump is successful in get his latest two nominees past the Senate and onto the Commission, retroactivity will enter the dark ages. But judging from yesterday’s nonevent, it looks like things could not get a whole lot worse for the already-sentenced.

U.S. Sentencing Commission, Amendments to Sentencing Guidelines (Preliminary) (April 12, 2018)

– Thomas L. Root LISAStatHeader2small

Sentencing Commission May Adopt First Offender Proposal on Thursday – Update for April 9, 2018

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

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 SENTENCING COMMISSION SET TO ADOPT AMENDMENTS

Some of our friends who publish their own newsletters have predicted 17 of the last two United States Sentencing Commission actions on the so-called first offender proposal. They should be glad that the long wait is just about over. The USSC will hold its April meeting on Thursday, April 12, at which time it is expected to adopt proposed amendments for November 2018, including quite possibly some form of first offender relief.

abscissa180319The USSC’s sentencing guidelines are based on a cartesian system with the abscissa being the offense level and the ordinate being the defendant’s criminal history. If you rob a bank, that offense is worth a base offense level of so many points. If you threatened an old lady in the process, that is worth a few more points, but if you confess after being caught, that takes a few points off.

Your criminal history is calculated based on the number, severity and age of prior criminal convictions. A prior drunk driving is not as bad as a felony burglary, and while a 12-year old misdemeanor possession of pot charge isn’t worth anything, a 12-year old felony trafficking in pot is. The result is a Total Offense Level and Criminal expressed in Arabic numbers (such as a Level 22) and a Criminal History Category expressed in Roman numerals (such as a “III”). On the sentencing table that is Chapter 5A of the Federal Sentencing Guidelines, a defendant with a Total Offense Level of 22 and a Crim History Level III would have a suggested sentencing range of  51-63 months.

Oscar180410Now for the “First Offender” proposal: It is entirely possible to have prior convictions galore and yet be a Criminal History I (the best score you can achieve). The Guidelines define a Crim I as someone with zero or one criminal history point, which means you could have had a couple of heroin distribution felonies in the 1980s, a string of misdemeanor domestic violences between 1990 and 2006, and one minor misdemeanor 2014, and – because of the age of the offenses – be a Criminal History I. Such a defendant is far different from the 55-year old guy who has never even gotten a traffic ticket, but ends up with a tax fraud conviction. Both defendants get the best treatment from the Sentencing Table that’s possible, but one is a genuine virgin while the other has simply mastered the talent of not getting caught. In recognition, the USSC proposed  that the Phoebe Snows of the criminal world get bonus points for a prior record that’s purer than Crim I.

Two options for a “First Offender” guideline were floated by the USSC. One was that any defendant with zero criminal history points should be considered a First Offender. The second proposal, a stricter one, was more like an Academy Award for lifetime achievement, and would give bonus points to those with no criminal convictions any time in their past, no matter how old.

virgin180409As for nomenclature, the First Offender guideline would adjust a first offender’s Total Offense Level downward. The Sentencing Commission suggested that either all defendants who qualify as “first offenders” would receive a 1-level reduction from their offense level, or perhaps that  defendants who qualify as “first offenders” would receive a 2-level reduction if their Total Offense Level was below 16 and a 1-level reduction if it’s above. 

After the spate of comments for and against the various proposals (and a few against any First Offender guideline at all) presented to the USSC last month, we’ll see in a few days just how eager the Commission is the Trumpian “law-and-order” atmosphere that overhangs Washington to give any defendant, no matter how deserving, a break.

If it is adopted, the First Offender amendment will not be retroactive – that is, not apply to people already sentenced – unless the USSC holds an additional proceeding to declare it so. In other words, current federal inmates are urged not to fall for pitches from anyone (be it an outside service or a guy in the law library who wants some commissary) to prepare a filing to claim your sentence reduction. While it could happen, it will not be happening soon.

knuckles180409And, as we all know, the President has nominated some genuine knuckle-draggers to serve on the Commission. If they are confirmed by the Senate, you can likely kiss any chance for retroactivity goodbye.

U.S. Sentencing Commission, Public Meeting – April 12, 2018

– Thomas L. Root

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Four Foxes Nominated to Guard Henhouse – Update for March 7, 2018

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

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FOUR FOXES NOMINATED TO GUARD SENTENCING COMMISSION HENHOUSE

The U.S. Sentencing Commission, currently considering a “first offender” proposal that would reduce the Guidelines of people with no prior record, had better act quickly. Last Thursday, President Trump announced four nominees to the Commission, three federal judges and a guy named Bill Otis. All of them will require Senate approval.

henhouse180307Otis’ nomination marks one of Trump’s most powerful statements yet against sentencing reform. A man described as “a prominent pro-prosecution crusader,” Otis has a history as the worst kind of AUSA, a guy who oversaw criminal prosecutions without ever actually doing any of them himself. He is a vigorous advocate for lengthy prison sentences and mandatory minimum laws (especially for drug sentencing, and is a staunch supporter of the Attorney General’s re-emphasis on them. He dismisses reformers as “pro-criminal” advocates who want to be “nice to drug pushers” by letting “robe-wearing partisans” impose more lenient sentences. And he supports life without parole for juveniles. Slate.com quotes him as writing that to avoid longer sentences, criminals should “consider quitting the smack business and getting a normal job like everybody else.”

“Congress should abolish the Sentencing Commission,” Otis testified at a 2011 House Judiciary Committee hearing. “By far the most important purpose for which it was created no longer exists—to write binding rules for district courts to use in sentencing. It does have some secondary functions—for example, to study possible statutory improvements, as well as gather and publish statistics about sentencing practices—but when its core function has been demoted to making increasingly ignored non-rules, it’s time to turn the page.”

Otis’ appointment to the Commission “drew reactions of horror and condemnation from criminal justice advocates,” Reason.com reported. Those denouncing the choice ranged from the pro-inmate Families Against Mandatory Minimums and the conservative Cato Institute. Such criticism of Otis and Judge Henry Hudson of Virginia could make it harder for the full slate of four to win swift U.S. Senate confirmation. Before Trump’s announcement, criminal justice reform activists were quietly urging the White House not to nominate Hudson.

hudsonB170811Trump and Sessions appeared to have had a falling out last week, when the President called the AG’s handling of the FISA wiretap investigation “disgraceful.” Sessions then pushed back against the insult, saying he was presiding over DOJ’s investigation in a constitutional manner. But the next day, Trump nominated three Republicans and one Democrat to the USSC, and all three Republicans – Hudson, Otis, and Judge William Pryor – are Sessions allies. Of particular note is Hudson, known colloquially in Virginia as Henry “Hang ’em High” Hudson. Sessions recommended Hudson for the USSC in August 2017 and has now gotten his wish.

The primary concern for inmates is that provisions like “First Offender,” even if adopted before the newbies are confirmed on the Commission, will never become retroactive. Retroactivity is usually decided after a new Guidelines provision is adopted, but the new appointees are unlikely to support that.

Slate.com, Law and Order: Dinosaurs (Mar. 1, 2018)

Business Insider, Trump’s sentencing panel picks may face uphill Senate path (Mar. 2, 2018)

Daily Caller, Trump’s Sentencing Commission Nominees Show He May Not be That Angry at Jeff Sessions (Mar. 1, 2018)

Reason.com, Trump Nominates Man Who Called for Abolishing U.S. Sentencing Commission to U.S. Sentencing Commission (Mar. 1, 2018)

– Thomas L. Root

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