Soliciting Your Approval – Update for Monday, August 21, 2017

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

Today, we’re doing some cleanup of recent matters we’ve commented on in the newsletter.


solicit170821The 9th Circuit has ruled that delivery of a controlled substance under Oregon Revised Statute § 475.992(1)(a) (which is now 475.752) permits conviction for delivery based on mere solicitation to sell. Because the federal Controlled Substances Act does not punish soliciting delivery of controlled substances, the Circuit held that the Oregon statute cannot be a categorical match to an aggravated felony for immigration purposes, a holding that would apply equally to the Armed Career Criminal Act or the definition of a “controlled substance offense” under USSG Sec. 4B1.1.

The Circuit additionally held that 475.992(1)(a) was indivisible, meaning that the modified categorical approach could not be used to look at a defendant’s actual conduct leading to the conviction in determining whether it could be used for immigration, ACCA or Guidelines purposes.

Sandoval v. Sessions, Case No. 13-71784 (Aug, 8, 2017) (amended opinion)


virgin170821Other than sacrificing a virgin to stop a solar eclipse, there may be no more futile gesture that convincing a district court to include a judicial recommendation to the Federal Bureau of Prisons in a sentencing judgment. First, 18 U.S.C. 3621(b)(5) absolves the BOP from any obligation to give a flying fig about a judicial recommendation. So as a practical matter, what the court recommends means no more to the Bureau than what an inmate recommends, which is to say ‘nothing’.

Lavoris Martin must have heard ahead about the BOP’s unwillingness to grant more than six months of halfway house, despite its authority to do so, because he had his lawyer ask the sentencing judge to recommend that he get a full 12 months of “community corrections” at the end of his sentence. But the judge refused to even make the recommendation. Lavoris appealed.

Last week, the 11th Circuit ruled that it lacked jurisdiction to review a refusal to give a meaningless recommendation. The Circuit ruled that judicial recommendations to the BOP “are ‘non-binding recommendations,’ not final decisions, and are not reviewable on appeal. So a judge’s refusal to make a recommendation is likewise not a final decision, and an appellate court lacks jurisdiction to hear any complaint that the judge refused to play along with a defendant’s plan.

United States v. Martin, Case No. 16-17353 (11th Cir., Aug. 15, 2017)


The BOP announced on August 1 that it would provide a wider selection of feminine products for female prisoners, both for sale in the commissary and available without charge as part of basic hygiene. While some institutions already provided some of the products, the memo will standardize the offering throughout the system and increase availability for women who cannot afford commissary-only items.

womenprison170821The change came about three weeks after Sen. Cory Booker (D-New Jersey) and Elizabeth Warren (D-Massachusetts) introduced the Dignity for Incarcerated Women Act, aimed at guaranteeing prisoners sufficient access to such products, and to ensure women are not shackled or locked in the SHU while pregnant, charged for phone calls, or kept from contacting their families.

Curiously, the bill – S. 1524 – extends its protections not just to women, but to “primary caregiver parents” of either gender. It includes preferential institution placement for such parents, overnight family visits, and a virtual ban on strip searches by COs of the opposite gender.

Skopos Labs, which develops analytics for legislation, rates the bill as having a 9% chance of passage.

Refinery 29, Female Inmates In Federal Prisons Will Now Have More Access To Tampons & Pads (Aug. 14, 2017)

S.1524, Dignity for Incarcerated Women Act (July 11, 2017)

–Thomas L. Root


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