Last Week’s White House Meeting on Crim Justice Reform: Beginning of the End? – Update for January 19, 2018

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


wall180119Earlier this week, we reported that President Trump and Jared Kushner, his son-in-law and senior adviser, met with criminal justice reform advocates a week ago on prison reform and re-entry. We noted that “the meeting emboldened some advocates who saw it as a sign the White House is officially on board with criminal justice reform. Mark Holden, general counsel of Koch Industries, came away from the meeting with a sense of optimism, noting that President Trump was an active participant during the 45-minute session. “I saw some passion there,” Holden said, admitting that he hopes prison reform can be the start to broader federal criminal justice reform.

Now for the darker side. Vice reported this week that Kushner’s plan for a bipartisan initiative to reform the U.S. criminal justice system hit the wall (and we don’t mean that wall) prior to the meeting. Kushner’s comprehensive proposal – which included incentives to companies for hiring former felons, investing in inmates once they leave prison – most importantly focused on reforming sentencing laws, especially mandatory minimum sentencing.

sessions180119So nearly everyone was surprised that last week’s meeting omitted any talk about sentencing reform as such, especially about reforming mandatory minimums. It appears that in order to entice Attorney General Jefferson Beauregard Sessions III – who adamantly opposes reforming mandatory minimum sentencing – to attend the roundtable, Kushner had to drop any mandatory minimum discussion from the agenda. Thus, the AG has effectively blocked sentencing reform from becoming part of the White House reform agenda, Vice reports, citing statements made by three people who have attended meetings with White House advisors on the issue over the past few months.

“Sessions was very powerful in the Senate, but I think he’s actually more powerful now to oppose the bill,” Vice quotes a source familiar with White House meetings on the issue as saying. “He has an ability to keep in line several members on the conservative side, the DOJ would take a position on the bill, that would scare the Republicans.”

At the meeting, the President suggested creating more programs for job training, education, mentoring and drug addiction aimed at rehabilitation.

Ohio State University law professor Doug Berman, who writes the authoritative Sentencing Law and Policy blog, wrote earlier this week that he “remain confident that any number of bills with sentencing reform components could get a majority of votes on the floor of the House and the Senate if leadership would bring these bills up for a vote.  But I surmise AG Sessions has enough sway with leadership (especially in the Senate) to get them to prevent a vote on any bills the AG opposes.”

To be sure, some corrections reform could be a significant boost to many of the 183,470 federal prisoners in the system, reaching substantially more of than reforms in mandatory minimums, which would affect about 25% of the population. But that 25% is serving a disproportionate amount of the time handed out to inmates. What’s more, much of the talk about corrections reform is focusing on “nonviolent” offenders, no doubt because limiting any incentives to nonviolent offenders is a much easier “sell” to the public.

violence151213But violent offenders by and large get out of prison, too, and logic suggests that effective rehabilitation of someone who has in the past bludgeoned a grandmother might yield substantially more public safety benefit than rehabilitating someone who sold marijuana on the street corner.

I received a thoughtful email from a “violent offender” earlier this week. He complained that

[e]very time I read these newsletters all they talk about is reform for non-violent offenders. They say that these reforms and programs are designed to help non-violent offenders reintegrate back into society and to give them a chance to become normal citizens again. Why just non-violent-offenders? Why wouldn’t you want all offenders to get out and become normal citizens again… Just because an inmate has what is considered a violent charge does not make that person in fact violent. In most cases it just makes him/her stupid. I have been locked almost 16 years. I have never had even one write up for disciplinary action. I have taken over 60 programs while in Federal custody. But because I committed a crime with a violent nature I have been designate as a Public Safety Factor. This has excluded me from getting to go to camp, Half-way house, home confinement and any reduction in my sentence. I did wrong, really wrong and I have tried every day of my sentence to make amends and to change the person I am into a person who can be a good citizen again. The question is why have I been good? The answer is that I want to change…

heraclitus180119Heraclitus wrote that ““No man ever steps in the same river twice, for it’s not the same river and he’s not the same man.”

Heraclitus understood it. Our inmate correspondent understands it. Just about everyone gets it… except for the AG.  But that hardly matters… it seems that as long as Mr. Sessions is the Attorney General (and has President Trump’s ear, a situation that changes from day to day), sentencing reform is foundering.

Vice News, Jared Kushner’s prison reforms hit a brick wall called Jeff Sessions (Jan. 17, 2018)

Sentencing Law and Policy, Detailing how AG Sessions seeks to block sentencing reforms in White House criminal justice reform push (Jan. 17, 2018)

The Hill, Trump, Kushner meet with advocates on prison reform (Jan. 11, 2018)

–    Thomas L. Root

Thinking About Stuff That’s Not Interesting – Update for January 17, 2018

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


It’s because we’re human… or maybe because we all have the attention span of a gnat. But everybody’s interested in substance; no one cares about procedure.

tedious180118Substantive law is interesting: does a gun in the closet of a marijuana farmer support an 18 USC 924(c) mandatory 5-year consecutive sentence? If you break into a building housing both a pizza joint and a beauty parlor, and pilfer both stores, is that a single burglary or two for Armed Career Criminal Act cases? The issues are understandable, fact-laden and, frankly, interesting.

But who cares about the niceties of whether a Rule 60(b) motion after denial of a 28 USC 2255 petition is a legitimate claim about the integrity of the post-conviction proceeding or a second-or-successive 2255? About whether an appeal/post-conviction waiver in a plea agreement encompasses a motion for sentence reduction? Talk about counting angels on the head of a pin! This stuff is, as a judge once intoned at us during a less-than-effective cross-examination, is te-ee-ee-dious.

angels170726OK, it’s tedious. But’s also very consequential. Consider the world of post-judgment motions. Most everyone knows that filing a motion under Rule 60(b) of the Federal Rules of Civil Procedure to try to resurrect a 2255 motion is fraught with procedural peril. After the 2005 Supreme Court decision in Gonzalez v. Crosby, a Rule 60(b) motion may well be considered a second-or-successive 2255, unless it is narrowly focused on a defect in the 2255 proceeding itself.

But how about a Rule 59(e) motion? F.R.Civ.P. 59(e) lets the loser file a motion to alter or amend the judgment within 28 days after the judgment. One of the benefits of a timely-filed 59(e) motion is that it stops the clock running on the time to file a notice of appeal. It is almost a no-brainer: file a 59(e), and you can buy a lot of time before the appeal is due.

John Uranga is a Texas state prisoner. States, like the Feds, all have procedures for post-conviction challenges to criminal convictions. John filed his state petition, and was shot down. He appealed through the state court system and lost at every step.

apple160516When that happens, a state prisoner has the right to file a motion in U.S. district court under 28 USC 2254. This sort of gives a state prisoner a second bite of the apple, although the standard for a federal court reversal of a state court denial is pretty high. John was in the U.S. District Court for the Northern District of Texas on his 28 USC 2254 motion, and – just like he had in the state system – the District Court ruled against him. After he lost his 2254 proceeding, he filed a 59(e) motion, arguing that the court should have considered an amendment he had filed to the 2254 motion before ruling against him.

Last week, the 5th Circuit made the business of filing a 59(e) motion a lot riskier. Pointing out that a 59(e) can be a second-or-successive post-conviction motion just as easily as can be a Rule 60(b) motion, the Court held that if it decides the motion is “a timely filed motion to alter or amend the judgment under Federal Rule of Civil Procedure 59(e), then the deadline for filing a notice of appeal would be tolled until the entry of the order disposing of that motion. However, a purported Rule 59(e) motion that is, in fact, a second or successive Section 2254 application is subject to the restrictions of the Antiterrorism and Effective Death Penalty Act and would not toll the time for filing a notice of appeal.”

John was lucky: the appellate court said his 59(e) motion was legit. But there’s a caution here for inmates filing 2254s and 2255s: a 59(e) motion is not necessarily a time-stopper.

Uranga v. Davis, Case No. 15-10290 (5th Cir., Jan. 12, 2018)

– Thomas L. Root


Lots of Heat Generated Last Week on Sentence Reform – But is There Light? – Update for January 16, 2018

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


justicereform161128President Trump and Jared Kushner, his son-in-law and senior adviser, met with criminal justice reform advocates last Thursday on prison reform and re-entry, as well as the successes states such as Georgia, Kansas and Kentucky have had in enacting programs aimed at reducing recidivism rates and rehabilitating inmates. The White House described the meeting as being intended to explore strategies to “equip nonviolent prisoners with the skills and opportunities needed for an honest second chance to correct their course in life and return to society as productive, law-abiding citizens.”

Trump said his administration is committed to helping former inmates become productive, law abiding members of society. “Two-thirds of the 650,000 people released from prison each year are arrested again within three years. We can help break this vicious cycle through job training, very important, job training, mentoring and drug addiction treatment… We’ll be very tough on crime, but we will provide a ladder of opportunity for the future.”

A White House official told The Hill that prison reform was discussed at the presidential retreat at Camp David a week ago weekend and that the Administration has been hosting roundtable discussions on prison reform and re-entry since last summer.

Attorney General Jefferson Beauregard Sessions III
Attorney General Jefferson Beauregard Sessions III – like inviting the fox to a meeting on chicken coop security.

Guests at Thursday’s meeting included Matt Schlapp, board chairman of the American Conservative Union; Brooke Rollins, president of the Texas Public Policy Foundation; Republican Governors Matt Bevin (Kentucky) and Sam Brownback (Kansas); Koch Industries general counsel Mark Holden; and Shon Hopwood, a former federal inmate who is now an associate professor at Georgetown University Law Center and a member of the FAMM Board of Directors. Thursday’s discussion also included Attorney General Jefferson Beauregard Sessions III and Trump’s chief of staff, Gen. John Kelly.

The meeting emboldened some advocates who saw it as a sign the White House is officially on board with criminal justice reform. “It has long been an excuse used on the Hill that we need to see where the White House is on this issue and this is the positive signal the folks on the Hill have been waiting on,” said Holly Harris, executive director of Justice Action Network. “I don’t think there’s going to be any more justifications to hold up this legislation,” she said.

Holden came away from the meeting with a sense of optimism. The President Trump was an active participant during the 45-minute session. “I saw some passion there,” he said. “He seemed like he got the issue, understood it and connected with it.” Holden said he hopes prison reform can be the start to broader federal criminal justice reform.

Rollins said, “I really think the White House is looking at lots of different avenues forward,” from congressional action to executive orders. Sessions, who has criticized granting leniency to drug offenders and supports mandatory minimums, suggested at the meeting he might be open to compromise on ideas such as job training. “The president talking about prison reform is a good thing,” said Kevin Ring, president of FAMM.

The meeting was not without its critics. Mark Mauer, executive director of the Sentencing Project, said, “more re-entry programming, the kind Kushner is suggesting, would be welcome, but a sole focus on that initiative reveals two grievous flaws. First, the programming provisions being discussed on Capitol Hill contain no funding allocation. Apparently, there is hope that faith-based organizations will emerge to provide these services pro bono… Second, dropping the sentencing provisions of the Grassley-Durbin legislation from the Trump administration’s reform conversations guarantees that there will be no significant inroads made into reversing mass incarceration. Thousands of federal drug defendants will be sentenced to decades of incarceration and resources will be squandered that could more effectively be directed to prevention and treatment initiatives.”

trump180116Others have objected that the meeting does not include any liberal groups. However, an anonymous conservative participant told Reuters that “excluding organizations that are seen as liberal, like the ACLU or the NAACP, and leaving out sentencing reform was necessary to gain thetea leaves, I think what they’ve done is sat down with Mr. Sessions and got him to agree to part of the reforms,” said the conservative leader, who requested anonymity in order to freely discuss the issue.

Meanwhile, the American Bar Association sent a letter to Sens. Charles Grassley (R-Iowa) and Diane Feinstein (D-California), in support of the Sentencing Reform and Corrections Act of 2017. ABA President Hilarie Bass said that while the ABA was “disappointed by the inclusion of some new mandatory minimum sentencing provisions in the current draft, we believe that S. 1917 will, overall, create a more just criminal justice system than the one currently in place. Enactment will help focus prosecutorial and correctional resources on offenders who commit serious crimes that pose the greatest risk to public safety and will permit more sentencing flexibility for low-level, nonviolent offenders whose role and culpability will now receive more careful and balanced consideration by sentencing judges. It will also expand recidivism-reducing programs and juvenile justice reform to make sure that those in prison have a chance to reintegrate into society.”’

Finally, Sen. Cory Booker (D-New Jersey) and Sen. Kamala Harris (D-California) were both named to the Senate Judiciary Committee last week. Sen. Booker has sponsored criminal justice reform legislation in the past, and is a co-sponsor of SRCA17. Sen. Harris has occasionally supported criminal justice reform, such as when she joined with Sen. Rand Paul (R-Kentucky) to back bail reform.

harris180116Some question Sen. Harris’s sincerity, however. As San Francisco’s district attorney and then as California’s attorney general, Harris rarely strayed far from a punitive law-and-order mentality. Last week, Reason warned that “Criminal justice reformers shouldn’t get their hopes up that she’ll be a reliable ally. During her time as San Francisco’s district attorney, Harris oversaw the city’s mismanaged crime lab. A San Francisco superior court judge ruled that the D.A.’s office ignored demands that it take responsibility for the lab’s failings, and that it violated defendants’ rights by hiding information about a corrupt technician who had been stealing cocaine.”

The Hill, Trump, Kushner meet with advocates on prison reform (Jan. 11, 2018)

Newsweek, Trump and Kushner’s prison reform plan not expected to reduce sentences or fix prison conditions (Jan. 11, 2018), Kamala Harris: No Friend to Criminal Justice Reform (Jan. 12, 2018)

– Thomas L. Root LISAStatHeader2small

There’s a Cot, But the ‘Hots’ Ain’t So Hot – Update for January 12, 2018

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


Prison and jail have famously been described as “three hots and a cot.” But the “hots” may not be quite as hot as you would think. In fact, you’ll be shocked to learn that prison food is lousy, at least according to a lengthy investigative article in The Atlantic.

What could be next? Perhaps an exposé revealing that pro wrestling is fixed?

The magazine reported that new evidence suggests that the prison food situation is “worse than previously thought, and not just because prison food isn’t winning any James Beard awards. It’s also making inmates sick.”

Yum, yum.
                                                  Yum, yum.

The Centers for Disease Control and Prevention (CDC) found that inmates are 6.4 times more likely to suffer from a food-related illness than the general public. The report found that inmates suffer from foodborne illness at a rate of 45 per 100,000 people annually, compared to only 7 per 100,000 in the general population. And 6% of all confirmed outbreak-related cases of foodborne illness in the US took place in prisons and jails, despite the fact that less than 1% of the population is incarcerated. At the same time, “desmoteric” outbreaks—the kind that occur in correctional institutions—were the country’s largest outbreaks in four of the 17 years studied. (In six other years, correctional outbreaks ranked within the top five.) Thirty-seven states reported at least one desmoteric outbreak during the same span.

tainted180111The agency found that tainted poultry products were the most common single culprit. However, as Mariel A. Marlow, one of the study’s coauthors, observed, “Oversight and regulation of correctional institutions can vary by state and institution, so just to pull out certain factors is a little difficult,” she said. But the widespread nature of the problem suggests “mundane roots, even if the consequences can be dramatic. Institutions struggle to enforce basic food-safety standards: Though there are reports of corruption, negligence, and poor or nonexistent training of the inmate workers, the primary factor appears to be that many correctional facilities aren’t equipped to execute the food-handling protocols observed in restaurants and corporate cafeterias. And when mistakes are made, there are inconsistent processes in place to ensure improvement.

The Atlantic, Prison Food Is Making U.S. Inmates Disproportionately Sick
(Dec. 27, 2017)

– Thomas L. Root


Pinocchio was not an Inmate, and Inmates are not Always Pinocchio – Update for January 11, 2018

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


We try to catch everything, but we’re only human. We missed this fascinating decision from last November, but alert reader William brought it to our attention.

medicalcare180111An Indiana state inmate sued prison officials for withholding medical treatment. He supported his complaint with his own declaration that he had tried to exhaust administrative remedies by filing the proper form, but only the staff could hand out the form, and he was refused one.

As is fairly typical in cases like these, the prison officials moved for summary judgment. They provided as their only evidence for summary judgment a declaration containing the general statement that, “as an inmate incarcerated with the Indiana DOC, the Offender Grievance Process has been available to Warren.”

The district court denied summary judgment to the prison officials, holding that “when considered alongside Mr. Warren’s specific evidence that his attempt to obtain a grievance appeal form in the customary manner was unsuccessful, the defendants’ single generalized statement regarding availability is insufficient to even place in dispute Mr. Warren’s evidence that he could not obtain a grievance appeal form, let alone for the defendants to carry their burden on this issue.”

liarliar171013But it was what followed that made the decision unusual. The district judge blasted the prison officials for making the “legally frivolous yet often presented” argument that the court should disregard Mark’s sworn declaration because it is self-serving. The prison officials complained that “if all an inmate has to do to excuse his failure to complete the grievance process is submit his own testimony in response to a motion for summary judgment stating he now remembers putting an alleged grievance appeal in a counselor’s mailbox and ‘they must have lost it,’ prison administrators will have difficulty administering an effective grievance process.”

Well, the district court essentially said, tough luck. The 7th Circuit has held repeatedly that so-called ‘self-serving’ sworn testimony is competent evidence. “Everything a litigant says in support of a claim is self-serving” the district court observed, “whether the statement comes in a complaint, an affidavit, a deposition, or a trial. Yet self-serving statements are not necessarily false; they may be put to the test before being accepted, but they cannot be ignored… It is dismaying to see plausible allegations labeled “self-serving” and then swept aside…”

The district court lamented that “the defendants’ approach is part of a troubling pattern the Court has noticed in prisoner civil rights cases where the affirmative defense of exhaustion is raised: the defendants move for summary judgment, they ignore the plaintiff’s admissible sworn testimony in response that the administrative remedy process was not available to him, and without confronting this evidence in their reply, the defendants ask the Court to also ignore the evidence and enter summary judgment in their favor. Such an approach leads to only two possibilities: the Court either has to explain, again, that the defendants’ argument lacks any basis in the law or, worse still, the Court—in its efforts to resolve one of the several hundreds of prisoner civil rights cases pending before it at any one time—mistakenly accepts the defendants’ invitation to commit legal error.”

nuns180111Of course, what the prison officials were really saying to the judge is that the plaintiff is nothing more than an inmate, so he can be ignored. All inmates lie, so nothing the plaintiff said – even if it is corroborated by a busload of nuns – can possibly be true.

Wink wink.

One district court has finally refused to wink back.

Warren v. Corizon, Inc., 2017 U.S. Dist. LEXIS 186983 (S.D.Ind., Nov. 13, 2017)

– Thomas L. Root


Statistics Don’t Lie – Update for January 10, 2018

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


funwithnumbers170511Several interesting stats were released at year end, starting with the annual report on Federal courts. Chief Justice Roberts of the U.S. Supreme Court reported on New Year’s Eve (just before he and the Mrs. left for a party, no doubt) that 6,300 petitions seeking Supreme Court review were filed last year, with 62 cases being decided, meaning that a petition for writ of certiorari has about a 1% chance be being heard.

In the Courts of Appeal, the workload fell substantially, with new filings in 2017 dropping 16% from the year before. In district courts, new civil actions fell 8%, while criminal cases were unchanged. Slightly more than 22% of district courts’ workload was criminal. About 135,000 people were under post-conviction supervision, about 2% fewer than a year before. Around 87% of those were on supervised release after doing prison time, a 1% decrease from the year before.

Meanwhile, the Pew Charitable Trust – which keeps track of these things – reported that 8.11% of voting-age Americans were convicted felons, up from 3.03% in 1981. In Georgia, 15% of the adult population was a felon in 2010, up from 4% in 1980. The rate was above 10% in Florida, Indiana, Louisiana and Texas.

numbers160704And a fairly sobering stat: Nearly 60% of formerly incarcerated people are unemployed a year after their release. Those who do find employment are paid an average of 40% less than those without a criminal record. This contributes to a vicious circle, as the ability to get and keep a job is one of the greatest factors in determining successful re-entry. One study in Florida found that helping inmates receive a vocational certificate reduced recidivism by 17 percent.

Supreme Court of the U.S., 2017 Year-End Report on the Federal Judiciary (Dec. 31, 2017)

The Crime Report, Number of Americans With Felony Records Rises Sharply (Jan. 2, 2018)

Inside Sources, Challenging the ‘Life Sentence’ of Unemployment Upon Re-Entry (Jan. 4, 2018)

– Thomas L. Root


Sentencing Commission Readying Amendment Package – Update for January 9, 2018

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


USSC170511The U.S. Sentencing Commission has scheduled a public meeting for Friday, January 19, 2018 at 10:30 a.m. The agenda includes no substantive items other than a report from the chair and what the USSC terms a “possible vote to publish proposed guideline amendments and issues for comment.”

The “possible vote” could be to finalize a package of proposed amendments for public comment prior to recommending the package to Congress by May 1. Once sent to Congress, the amendments would become effective November 1, 2018, unless Congress blocked them.

Of primary interest to many inmates is the “first offender” proposal, which would give people who lack any prior criminal history points a reduction of 1 to 2 levels. The idea, which the USSC floated a year ago, has not yet been firmed up as to who would qualify for the reduction and how great the reduction might be. If the measure becomes an amendment to the Guidelines, it would not be retroactive to already-sentenced inmates unless the USSC decides in a separate proceeding to do so.

snakeoil180109The possibility that a “first offender” proposal may be adopted and may someday be retroactive has already spawned a cottage industry of the usual “hopemongers” trying to sell inmates “analyses” of their cases, to determine whether they would be eligible for a sentence reduction under 18 USC 3582(c)(2). Inasmuch as the Sentencing Commission does not itself know to whom the “first offender” proposal will fit, or whether it will ever apply to people already convicted, there would seem to be a little alchemy (or perhaps old-time snake oil) involved.

The USSC meeting will be streamed live over the Internet.

U.S. Sentencing Commission, USSC Schedules Public Meeting for January 19, 2018

– Thomas L. Root


Counsel Should Be Smart Enough to Know the Court is Wrong – Update for January 8, 2018

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


It has happened often enough before: A Circuit decision was plainly against a sentencing position the defendant wanted to take, and so counsel did not fight the issue. Then, after the defendant’s conviction is final, the law changes. Was counsel ineffective for not raising the issue?

violence151213Jolol Carthorne was sentenced as a Guidelines career offender in part because he had a Virginia prior for assaulting a police officer. Circuit precedent at the time held the crime to be a crime of violence, and his lawyer did not fight it, despite the fact that Virginia law held that the slightest touching was enough for conviction.

On appeal, Jolol argued that the assault should not count for career offender status. The problem, of course, was that Jolol did not raise the issue at sentencing, so he could only win the issue if the district court committed plain error. The Circuit agreed that his assault on the cop was not a crime of violence, but said that because its prior decisions (all of which had since discredited by Johnson and Mathis and other Supreme Court cases) were binding on the district court when Jolol was sentenced, the sentencing error was not FRCrimP 52(b) “plain error.” Jolol had noting coming.

assault180108Jolol then filed a 2255 motion complaining that his lawyer should have argued that a Virginia conviction for assaulting a cop was no longer a crime of violence. His lawyer admitted he was not even aware of the analysis required by the recent Supreme Court cases application offenses, such as Johnson v. United States, Mathis v. United States, and  Descamps v. United States, for purposes of the career offender enhancement. But the district court said that since there was no plain error in sentencing Jolol as a career offender, there was no ineffective assistance of counsel standard in not raising it.

On the Thursday before Christmas, the 4th Circuit ruled for Jolol. It said that the plain error standard and ineffective assistance of counsel are not the same thing. “The ineffective assistance inquiry focuses on a factor that is not considered in a plain error analysis, namely, the objective reasonableness of counsel’s performance. In addition, plain error review requires that there be settled precedent before a defendant may be granted relief, while the ineffective assistance standard may require that counsel raise material issues even in the absence of decisive precedent… Claims of ineffective assistance are evaluated in light of the available authority at the time of counsel’s allegedly deficient performance. But the plain error inquiry applies precedential authority existing at the time of appellate review.”

dumblawyer180108Defense counsel must demonstrate a basic level of competence regarding the proper legal analysis governing each stage of a case. Therefore, he or she may be constitutionally required to object when there is relevant authority strongly suggesting that a sentencing enhancement is not proper. The Circuit said that was the case here, where newer cases made clear that Virginia assault and battery did not categorically present serious risks of physical injury. Defense counsel should have known to make the argument, even though the district court probably would have rejected it because of circuit precedent.

United States v. Carthorne, Case No. 16-5613 (4th Cir., Dec. 21, 2017)

– Thomas L. Root


Just Sign Right Below the Illusory Promise – Update for January 4, 2018

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


Jose Rivera-Cruz agreed to plead guilty to being a felon in possession of a gun. He signed a plea agreement in which the government (1) did not agree to reduce or dismiss any of charges, (2) reserved the right to argue for a statutory-maximum sentence, and (3) did not stipulate to a criminal history category of offense level. The plea agreement did permit Jose to argue for a 96-month sentence (a right he had with or without a plea agreement), and let the government argue for a statutory-maximum 120-month sentence (the most sentence Jose could get by law). However, the government did agree to recommend that Jose receive a 3-level acceptance of responsibility.

pleadeal180104After getting hammered with the full 120 months by the district judge, Jose argued on appeal that he should be allowed to get out of the plea agreement due to lack of consideration. Under basic contract law, both parties must give and receive consideration. If there is no consideration, the contract is not enforceable. Jose argued that just as Oz never did give nothing to the Tin Man that he didn’t already have, Jose got absolutely nothing under the plea agreement that he could not have gotten by pleading to the indictment without a plea agreement.

considerationLast week, the 1st Circuit disagreed. The appellate court held the plea agreement provided Jose with “at least three separate benefits, each of which independently constituted sufficient consideration.” First, the government agreed to move for the third acceptance-of-responsibility point under USSG 3E1.1(a), something it did not have to do because Jose refused to plead guilty until the eve of trial. The Circuit said the fact the 3-level reduction did not help him at sentencing made no difference: “the government’s voluntary agreement to submit the same three-point reduction, rather than a two-point reduction, certainly gave Rivera-Cruz a better ‘chance at less’ in front of the district court.”

tinman180104Second, the government agreed not to seek a 4-point obliterated-serial-number enhancement under USSC 2K2.1(b)(4)(B). The Presentence Report included the enhancement anyway, and Jose complained the government did not fight it, but the Court said the AUSA had no “affirmative obligation… to object to the enhancement at sentencing. In any case, the government’s voluntary agreement not to include the… enhancement in the plea agreement improved Rivera-Cruz’s chances of obtaining a more lenient sentence, and accordingly constituted sufficient consideration for his plea.”

Finally, the government agreed not to seek a 15-year mandatory minimum Armed Career Criminal Act sentence. Jose argued on appeal that the promise was meaningless, because he never would have qualified for an ACCA sentence. The 1st Circuit said that did not matter: “the government was under no obligation to drop its pursuit of an ACCA sentence. Its decision to do so in the plea agreement… provided Rivera-Cruz with a ‘chance at less’ during sentencing,” whether that chance was meaningful or not.

United States v. Rivera-Cruz, Case No. 16-2398 (1st Cir., Dec. 22, 2017)

– Thomas L. Root


Court Doesn’t Care About What Might Have Been – Update for January 3, 2018

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


addiction180103Barely an adult, Frank Hernandez committed a couple of horrific murders. The jury heard about how he was drunk during the crimes, but never heard about his severe mental illness with “psychiatric illness of psychotic proportions,” including schizophrenia, bipolar disorder, seizure disorder, and depression, in addition to an “extraordinary degree of chemical dependency.” What’s more, they never heard about his childhood with a succession of depraved parents and foster parents, which one expert later described as “a daily hell.”

Frank brought a state habeas corpus claim, claiming his lawyer was ineffective for not arguing “diminished capacity,” which was a valid state defense to murder. Usually when lawyers are accused of being ineffective, they try to justify their sloth as being some kind of strategy. To his credit, Frank’s lawyer did not. Instead, he admitted that he would have investigated and advanced the diminished capacity defense based on mental impairment had he realized that he could have done so.

game180103Game, set, match, right? Wrong. The state argued that the lawyer’s “subjective state of mind is irrelevant” as long as the state can conjure up some hypothetical reason why a reasonable defense attorney might have not raised the diminished capacity issue. After Frank brought a federal court action under 28 USC § 2254 and lost, he appealed to the 9th Circuit.

Last week, the Circuit slapped down the prosecutor, saying what might have been did not matter as long as the record showed what really was.

lawyerguilty160901“Where counsel has provided the reason for his conduct, and we have no reason to doubt the validity of that explanation, the relevant inquiry is whether the stated reason was objectively unreasonable,” the Circuit said. “Courts are not to indulge ‘post hoc rationalization’ for counsel’s decision-making that contradicts the available evidence of counsel’s actions.” Only where the defense counsel’s conduct is not explained in the record or the explanation contradicts the record, should a district court “entertain the range of possible reasons counsel may have had for proceeding as he did.”

Because “an attorney’s ignorance of a point of law that is fundamental to his case combined with his failure to perform basic research on that point is a quintessential example of unreasonable performance under Strickland,” the Court said, defense counsel’s omission was ineffective assistance.

Hernandez v. Chappell, Case No. 11-99013 (9th Cir., Dec. 29, 2017)

– Thomas L. Root