2016 May Be the Year – News for Week of December 28, 2015

NYDTypwrtrThis week:

7th Circuit Throws Out Illegal-Reentry “Aggravated Felony” On Johnson Grounds

Conviction Nullified For Nullification Advocates

Supreme Court Update On Johnson Retroactivity

FBI Up, BOP Down In 2016 Budget

Senator Grassley Delivers The Pork For The BOP

Some Optimism For Congressional Action On Sentence Reform – But It Had Better Happen Soon



It’s a rare defendant who hasn’t heard of or experienced having a judge enhance a Guidelines score based on facts of which the defendant was never convicted.  You pled to distributing five grams of cocaine powder on a single rainy Thursday, but suddenly, at sentencing, the court says you really sold two kilos of the stuff over a six-month period. Where’d that come from?

Sentencing151228The use of so-called acquitted conduct in calculating guidelines ranges and varying upwards for sentences has been around as long as the Sentencing Guidelines. Last week, the U.S. Court of Appeals for the D.C. Circuit denied rehearing in United States v. Bell, a case questioning whether relying on acquitted conduct is constitutional, two judges filed dissenting opinions worth noting.

Judge Brett Kavanaugh argued that Congress or the Sentencing Commission should act now in order to address problems with acquitted conduct. Judge Patricia Millett wrote “in a constitutional system that relies upon the jury as the ‘great bulwark of [our] civil and political liberties,’ it is hard to describe Bell’s sentence as anything other than a “perverse result … [W]hen the central justification the government offers for such an extraordinary increase in the length of imprisonment is the very conduct for which the jury acquitted the defendant, that liberty-protecting bulwark becomes little more than a speed bump at sentencing ….”

judge151228Also last week, the 5th Circuit provided a perfect illustration of what Judge Millett is talking about. Former Deputy Sheriff Mark Hebert was convicted of fraud for assuming another man’s identity for the purpose of using his credit cards and bank account. With all of the counts stacked, he was looking at a statutory maximum of 153 years, but his Guidelines were only 84 months. However, the district court suspected that Deputy Hebert had killed the victim and disposed of the body in order to pull off the fraud – even though the government admitted it lacked evidence to convict Hebert for it – so the judge departed upward from 84 months to 1,104 months (92 years).

The 5th Circuit upheld the sentence, “because we have held that courts can engage in judicial fact-finding where the defendant’s sentence ultimately falls within the statutory maximum term. Following Booker, we noted that ‘[t]he sentencing judge is [still] entitled to find by a preponderance of the evidence all the facts relevant to the determination of a Guideline sentencing range and all facts relevant to the determination of a non-Guidelines sentence’.” The Circuit has “foreclosed as-applied Sixth Amendment challenges to sentences within the statutory maximum that are reasonable only if based on judge-found facts.”

This is precisely what troubles the D.C. Circuit judges. Perhaps soon the Supreme Court can be convinced to look at the question.

United States v. Bell, Case No. 11-3032 (D.C.Cir. Dec. 22, 2015)
United States v. Hebert, Case No. 14-3105 (5th Cir. Dec. 23, 2015)



A Denver District Court judge dismissed all charges Dec. 16th against two men charged with jury tampering for handing out pamphlets in front of the courthouse. The two were each charged with seven counts of jury tampering for handing out literature in front of the courthouse explaining that a jury has a right to acquit people if they disagree with the law, a doctrine known as “jury nullification.”

jury151228Around since the 17th century, jury nullification occurs in a trial when a jury acquits a defendant, even though the members of the jury may believe that the defendant did the illegal act but they don’t believe he should be punished for it. This may occur when members of the jury disagree with the law the defendant has been charged with breaking, or believe that the law should not be applied in that particular case.  Nullification has always been a dirty secret: lawyers are prohibited from telling the jury it has a nullification power, and judges almost to a jurist refuse to inform the jury that it can act lawlessly and acquit people without any fear of reprisal.

In the Denver case, the two men were “regular fixtures in Denver’s protest community.” Last July, they were distributing jury nullification literature to people entering the courthouse when they were arrested. A local judge ordered the charges dropped, holding that they were not targeting any specific jurors, but were just exercising their First Amendment rights. The two have since filed a federal civil rights lawsuit against the police who arrested them.



Raul Vivas-Ceja enjoyed life north of the Mexican border, which he had crossed more than once without benefit of Government permission. Unfortunately, the fun he had in U.S. had come with a price: Vivas-Ceja has convictions for driving with a revoked license, disorderly conduct, and driving while intoxicated. He also has a felony conviction for fleeing the police.

Fleeing the authorities is almost always a bad idea.
Fleeing the authorities is almost always a bad idea.

When Vivas-Ceja was arrested for illegally reentering the United States after a prior deportation, his maximum sentence was raised to 20 years because the district court found the fleeing offense to be an “aggravated felony” due to 18 U.S.C. 16(b).  An “aggravated felony” is any felony that “involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”

Vivas-Ceja’s district court concluded that his fleeing conviction was a crime of violence, and thus, an aggravated felony. He objected that the “substantial risk” definition was unconstitutionally vague – the exact argument that won in Johnson v. United States – but the district court classified the fleeing conviction as a crime of violence and increased his sentence for it.

Last week, the 7th Circuit reversed the sentence. Holding that the “Due Process Clause prohibits the government from depriving a person of liberty under a statute ‘so vague that it fails to give ordinary people fair notice … or so standardless that it invites arbitrary enforcement’,” the Court of Appeals held that 18 U.S.C. 16(b) is “materially indistinguishable from the ACCA’s residual clause.”

The 7th Circuit said that “just like the residual clause, Sec. 16(b) offers courts no guidance to determine when the risk involved in the ordinary case of a crime qualifies as ‘substantial’ … Applying Johnson’s reasoning here, we conclude that Sec. 16(b) is unconstitutionally vague.”

This Johnson-like issue could become as big for “illegal reentry” defendants as Johnson itself is to ACCA defendants.

United States v. Vivas-Ceja, Case No. 15-1770 (7th Cir. Dec. 22, 2015).



Last week, we reported that three case currently before the Supreme Court asking that last summer’s decision in Johnson v. United States be made retroactive, so that people already sentenced under the Armed Career Criminal Act can undo their sentences based Johnson. One of the cases has been dismissed, but two remain.

Promising news for Johnson fans ...
Promising news for Johnson fans …

Those cases – In re Triplett, No. 15-626 (filed Nov. 10, 2015); and In re Sharp, No. 15-646 (filed Nov. 16, 2015) – ask for a writ of habeas corpus direct from the Supreme Court.  Triplett also asked for a writ of mandamus directing lower courts to treat Johnson as retroactive.

Last week, the Supreme Court set both Triplett and Sharp for consideration at the Court’s January 8, 2016, conference. If the Court decides to hear either matter, it will decide to do so at that time. If it accepts one or both of the cases, briefs will be filed and the cases will be argued before the Court.  For the Supreme Court to rule on Johnson retroactivity before the June deadline for prisoners to file for Johnson relief, Court followers generally agree that the Court will have to decide to accept a petition by January 15th.

In re Triplett, Case No. 15-626 (filed Nov. 10, 2015); In re Sharp, No. 15-64.6 (filed Nov. 16, 2015)



The FBI’s a winner and BOP’s a loser in the annual battle over spending U. S. Justice Department funds.

fbi151227A Congressional budget deal for the current fiscal year finalized by negotiators several weeks ago provides the FBI with $8.5 billion, the largest chunk of any Justice Department agency. DOJ’s other major sub-agency is the Bureau of Prisons, which is getting a bit less from Congress this year, $6.92 billion compared with about $6.95 billion last year. Congress rejected a request from the Obama administration to raise the BOP total to $7.3 billion.

Critics charge that the prisons agency is taking too big a chunk of the Justice Department’s budget. A Charles Colson Task Force initiated by Congress soon will propose changes aimed at reducing the federal prison population, which already has been dropping slightly after a historic high, as does legislation pending in both the Senate and House to trim mandatory minimum sentences in drug cases.



pig151228It’s fairly well known that Sen. Charles Grassley, an Iowa Republican who is chairman of the Senate Judiciary Committee, has been a long-time supporter of mandatory minimum sentences. Sen. Grassley now supports the pending S. 2123, The Sentencing Reform and Corrections Act, but he came to the party a little late and rather reluctantly.

Nevertheless, in a news release released last week, Sen. Grassley took credit for one significant criminal justice accomplishment. He claims that after he turned up the heat on the BOP “for a decision to remove pork from the menu in federal prisons for alleged cost considerations and prisoner dislike, the Bureau of Prisons promptly reversed its decision after revealing that prisoners actually liked pork and the costs for serving pork were not prohibitive.”



Congress has left Washington, D.C., for the holidays, but the talking about sentence reform continues.

In a year-end analysis of Congressional accomplishments in 2015 – and there were a surprising number of them – a political writer for The Atlantic magazine reported last Wednesday that while “expectations for major legislative action are always low in a presidential-election year … the ripest area for bipartisanship is criminal justice reform, which has attracted the interest of lawmakers from across the political spectrum. Obama has listed it as a priority, and advocates believe they have a small window early in the year before the presidential and legislative primary campaigns make a major bill impossible.”

Editors at The Hill (a Washington D.C., political publication widely read on Capitol Hill), said last Tuesday that “we are encouraged to see female lawmakers in Congress getting behind criminal justice reform legislation on a bipartisan basis … What these bills represent is recognition that criminal justice in the United States is badly broken and in need of broad, systemic reform …”

legisThe Daily Caller, an online publication focused on politics, said in a story last Tuesday that “The consensus that has emerged on mandatory minimum sentencing and prison reform is both wide and deep. Interest groups and individuals from across the political spectrum, including Koch Industries, the ACLU, the American Conservative Union, #Cut50’s Van Jones, and Americans for Tax Reform’s Grover Norquist, all agree on the need to reform mandatory minimum sentencing laws.  The overwhelming agreement among experts, advocates, and the public has made it easier for politicians of both parties to come together. Indeed, it would be difficult to find another issue on which so many Republican leaders agree as strongly with President Obama.”

Justice Action Network, a conservative-liberal coalition advocating criminal justice reform, said in a report issued last week that Senate Majority Leader Mitch McConnell has committed to floor action this Congress (which would mean in 2016), while Speaker of the House Paul Ryan said that he’s personally in favor of criminal justice reform and it’s an issue the House should be addressing.

suspended151228Finally, the Huffington Post said last Tuesday that “criminal justice reform is enjoying a moment of mainstream support: Mass incarceration is now widely recognized as wasteful, in terms of dollars and lives, and the language of reform has been echoed by politicians, pundits and the media throughout 2015 … However, we cannot pop the champagne corks just yet. The latest prisoner statistics showed that there has only been a one percent reduction in the state and federal prison population ¬– nothing near the dramatic changes we need to see to bring real relief to the communities most impacted by incarceration.”

We’ll report every week on the status of legislation, whether it’s moving forward or just standing still.


Legal Information Services Associates provides research and drafting services to lawyers and inmates. With over 20 years experience in post-conviction motions and sentence modification strategy, we provide services on everything from direct appeals to habeas corpus to sentence reduction motions to halfway house and home confinement placement. 

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