All posts by lisa-legalinfo

It’s Official – The AG Declared to be an “Idiot” – Update for September 19, 2017

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


We always kind of suspected this, but it’s still nice to get confirmation.

sessions170918The New York Times reported last week that in the middle of an Oval Office “horsewhipping” of Attorney General Jefferson Beauregard Sessions III by President Trump last May, over Sessions’ recusal of himself from the Trump Russia probe, the President got a phone call informing him that Robert Mueller had been appointed to be special counsel for the investigation. After the call, Trump “lobbed a volley of insults at Mr. Sessions, telling the attorney general it was his fault they were in the current situation. Mr. Trump told Mr. Sessions that choosing him to be attorney general was one of the worst decisions he had made, called him an “idiot,” and said that he should resign.”

The Attorney General is an “idiot?” At least now if we say it, we can attribute it to the man who hired him.

justicereform161128Also from 1600 Pennsylvania Avenue, President Trump’s son-in-law and senior adviser, Jared Kushner, hosted a White House roundtable last week to gather recommendations for improving mentoring and job training in federal prisons.  

A bipartisan group of about two dozen elected officials, religious leaders and business leaders attended the first major criminal justice-related event held by the Kushner-led Office of American Innovation. “There is a lot of agreement from the left and the center and the right that once a person has committed a crime we should make sure we give them the best opportunities to try to live a productive life after serving their time,” Kushner said.

Members of Congress attending were Sen. John Cornyn, R-Texas, Sen. Sheldon Whitehouse, D-Rhode Island, Rep. Doug Collins, R-Georgia, and Rep. Sheila Jackson Lee, D-Texas. Several cabinet-level officials were there, as well as two governors — both Republicans — representing the state-level effort.

idiot170918Kushner’s interest in criminal justice policy is much different than that of Trump and Attorney General Jefferson Beauregard Sessions III, reportedly branded an “idiot”by his boss, who have called for more aggressive prosecutions of drug offenders and illegal immigrants.

The New York Times, Trump Humiliated Jeff Sessions After Mueller Appointment (Sept. 14, 2017)

Washington Post, Kushner to gather bipartisan group to come up with ideas for federal prisons (Sept. 13, 2017)

– Thomas L. Root


8th Circuit Finds Constructive Variance in “Nothingburger” Case – Update for Monday, September 18, 2017

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


cheeseburger170918It’s appropriate that on National Cheeseburger Day, we would report on a strange little “nothing burger” of a case handed down last week by the 8th Circuit. The appellate court reversed a misdemeanor conviction of a South Dakota man for “threatening, intimidating, or intentionally interfering with” a U.S. Forest Service officer engaged in the performance of duties.

Tom McDill, who owned property next to a national forest, wanted to set up a business of hauling off piles of wood debris from forest land and selling it. He also wanted a permit to cut down some beetle-infested national forest trees to keep the bugs from spreading to his land. Neither of these was unreasonable, but Tom has kind of an “in-your-face” style of discussion that creeped out a couple of female USFS employees. A USFS cop gave him two misdemeanor summonses, listing the offenses as “intentionally interfering w USFS employee in process of her duties” and “harassment + interference w/ USFS employee in process of her duties,” respectively, in violation of 36 CFR 261.3(c)).

whatsaid170918The citations charged Tom with harassment (not prohibited by 261.3(c)) and interference. This, the verdict was permissible only if it rested on the theory that Tom intentionally interfered with the employees. But, as the 8th Circuit put it last week, “the court effectively altered the charges set forth in the citations.”

The government’s case established that Tom intimidated the employees, and both were frightened by Tom’s size and demeanor. The government argued that Tom “intimidated and arguably interfered with… a forest officer.” And in its verdict, the court told Tom that evidence showed Tom was “intimidating, interfering, or threatening them… because they were Forest Service officers.”

The case is a nothingburger
The case is a nothingburger

The 8th Circuit held last week that “there was at least a substantial likelihood that McDill was convicted of an offense for which he was not charged. Accordingly, McDill was subjected to a constructive amendment… that materially and substantially affected McDill’s right to notice of the charges against him… McDill relied on the language of the citations in preparing his defense, and was unfairly surprised when the government pursued a conviction based on the theory that he intimidated or threatened [the USFS employees]…” The error “undermined the ‘fairness, integrity or public reputation of judicial proceedings’.”

United States v. McDill, Case No. 15-2503 (8th Cir., Sept. 15, 2017)

– Thomas L. Root


6th Circuit Says “There’s Crazy, and Then There’s Crazy Like A Fox” – Update for September 14, 2017

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


repo170915The facts of the case hardly seem like a federal crime. Repo man Garry Valentine showed up at Airiz Coleman’s house in Youngstown, Ohio, to repossess Airiz’s truck for nonpayment of the note. Airiz took exception, and – as the court drily puts it – “pointed a handgun approximately six or seven inches from Valentine’s face and threatened to kill him. Defendant’s wife intervened and Valentine was able to call the police.” The police came and arrested Airiz, seizing some cheap 5-shot revolver.

So far, it seems unremarkable, the kind of thing the local cops would handle. Airiz would be charged with some kind of assault, spend some time in jail, get bailed out, cop a plea and get maybe 6 months. Except, of course, it turns out Airiz had a prior felony, so the feds – who should have better things to do in Youngstown – picked up the case, charging Airiz with being a felon in possession of a firearm.

sovereigncitizen161125This is where the case gets interesting. While awaiting trial, Airiz apparently became acquainted with the Sovereign Citizen movement. We’ve described it before. The sovereign citizen movement is a loose grouping of litigants, commentators, tax protesters, financial-scheme promoters, and assorted whackos, who take the position that they are answerable only to their particular interpretation of the common law and are not subject to the United States Code or federal courts, although some of them have great affection for the Uniform Commercial Code (as they understand it to be, which it is not). Others prefer admiralty law. They do not recognize United States currency, although they freely spend it, and maintain that they are “free of any legal constraints.” They have special enmity for the federal income tax.

Airiz became an eager convert. At his arraignment, he acknowledged his but challenged the court’s jurisdiction over him, arguing that the government was “trying to charge him with” a “commercial crime” and that the United States could not be the victim of a commercial crime, whatever that meant. Airiz demanded of the magistrate judge to know if he was forcing Airiz “to contract,” and he referred to himself as a “flesh and blood living being.” He claimed that his detention on “U.S. soil” was unconstitutional.

When his public defender tried to quit because Airiz was “combative” and “confrontational,” Airiz told the court that he was present “on special appearance, as a third-party intervenor” and claimed that he was a “beneficiary and executor to the legal estate of the decedent.” He said he had surrendered his birth certificate “to the Court for set-off, settlement.” He contended that he was not a corporation, an estate, or a legal fiction, but rather, was “a living man… living private on the land.” He “authorized” the court “to settle and close the account, case, constructive trust” and again argued the court lacked “jurisdiction” and referenced his “copyright.” The district court quickly came to see the public defender’s point, and appointed other counsel.

crazy170915Several days before trial, Defendant repeated his jurisdiction claim, explaining again that he is “a living man… not a ‘corporate fiction’… [who] never signed any ‘Contract’ with the Public Defender’s Office.” He also appointed “Respondent: James S. Gwin” (who was the District Judge hearing the case) “as Trustee to settle and close” the case. Airiz signed the notice as his own “Authorized Representative” and listed an address in “Warren, Ohio Republic,” with a zip code in brackets. Airiz loaded up the record with an Affidavit of Ownership, Declaration of Nationality, Certificate/s of Titles, and Birth Certificates, and declared himself to be a “Moorish American National.” Using a favored sovereign citizen artifice of declaring a copyright in his own name, Airiz demanded payment of “1,000,000,000.00 PER HOUR UPON OCCURANCE [sic]” when anyone used his name.” Finally, for good measure, Airiz attached a proposed “Order of Dismissal With Prejudice” pursuant to “Rule 12(b)(1)(2) of the Federal Rules of Civil Procedure” alleging lack of subject-matter and in personam jurisdiction.

Trial with his new counsel did not go well. Airiz claimed that he did not want to testify at trial, but his new attorney insisted he could not argue effectively unless Airiz testified as to his view of what happened. Airiz said he and his wife “didn’t want to argue for a corporation,” and that was why he “tried to be respectful” and said that he wasn’t the defendant, but a man. He was convicted.

At sentencing, Airiz was starting to get it. He painted himself as having overcome a tough childhood to become a good family man, and said he had written a play that a record company was about to produce. He said that he had a job lined up in Hollywood with Charlie Sheen. He said he had saved another inmate’s life while jailed awaiting trial. He told the court he “never meant to dishonor anyone in this courtroom” and that he “always wanted to provide for my family.”

The district court sentenced him to 36 months, one month beneath the bottom of the sentencing range.

stupidity170915On appeal, Airiz somehow ended up being represented by Washington, D.C., megafirm Sidley Austin. His appellate counsel did just about the only thing it could do. It complained that its client was obviously nuts, and that the district court should have had his head examined. Or, in legalese, it argued that Airiz’s “bizarre statements over the course of multiple hearings and trial, and his interaction with his counsel—as reported by those attorneys—triggered reasonable cause to believe” that he did not understand the nature and consequences of the criminal proceedings and lacked the ability to consult with counsel to prepare his defense.

Airiz offered a few examples: He said the “first tell-tale sign was his ‘stringing together legal jargon that made no sense’,” such as saying he was

“here on special appearance, third-party intervenor, okay, who was injured by this action, and beneficiary and executor to the legal estate of the decedent” He also believed that he could authorize the district court “to settle and close” the case and that he could “decline any more offers of imprisonment, fines, fees, or any other penalties.” Second, Defendant argues that he “utterly fail[ed] to grasp that the jury had convicted him of a federal criminal offense[.]” At the hearing to remove Mack as counsel, Defendant repeatedly insisted that his “debt” had been taken care of, and the court was therefore required to release him from custody. Third, Defendant claims that his “abnormal splintering of the self” should have raised a red flag. At the hearing on his first attorney’s motion to withdraw, Defendant characterized himself as the defendant’s “surety,” and at trial, as his “authorized representative.” In his objections to the presentence report, Defendant claimed that he was not a defendant, but “a natural living man” (and not a U.S. citizen). Fourth, he displayed “a grandiose belief in his own superior knowledge,” via his “belligerence with the prosecutor while being cross-examined at trial.” In particular, Defendant confusingly discussed his 2008 felony convictions, first claiming that he prevailed, then that he had taken a plea, and finally claiming that he had done so “unconsciously.” He also read a “revised” passage from the Bill of Rights—his version of that document. Fifth, although “fairly lucid” at sentencing, Defendant allegedly made “lofty claims that suggested he was not fully connected to reality.” This included his assertion that he was writing a play and had a “guaranteed job on anger management in L.A. with Charlie Sheen.”

In fact, Airiz argued, the district court itself twice commented that Defendant was not making any sense.

chutzpah170915It was a pretty gutsy move: act nuts with a side of chutzpah. Call it “nutzpah.” Spout nonsense at trial, and then appeal on the grounds that the court should have known you were acting crazy. But earlier this week, the 6th Circuit refused to buy it. There was nothing that unusual about Airiz’s “meritless rhetoric,” which was “frequently espoused by tax protesters, sovereign citizens, and self-proclaimed Moorish-Americans.” The jurisdiction claims, the “Moorish-American” business, the name copyright, the “third-party intervenor” status: been there, the Court said. Done that. Have the Sovereign Citizen t-shirt.

The 6th noted that two other circuits had rejected the claim that professing to be a sovereign citizen was “an expression of incompetency,” in the absence of mental illness or uncontrollable behavior. A competency hearing is not necessary where the only evidence of incompetence is “the unusual nature of the defendant’s beliefs.”

tshirt170915The appeals court held that Airiz showed that he understood the criminal nature of the proceedings, as reflected by the fact that he challenged the court’s jurisdiction. Airiz “demonstrated his ability to make legal arguments, albeit atypical ones. He drafted a detailed affidavit, provided state documents, and cited case law, statutes, and constitutions. His trial testimony was designed to counter incriminating facts.” He cooperated with the Probation Officer in preparation of the presentence report. But “perhaps most telling” was Airiz’s “articulate, passionate allocution” begging the court to return him to his family. The Court said that Airiz’s “swan song at sentencing reflects a carefully crafted attempt to present himself as a virtuous man, good father, and community leader, a character very different than the one presented at earlier stages of the proceedings.”

swan170915Yes, but how about Airiz’s claim of a Hollywood job offer? Was that not evidence of “grandiose and possibly delusional thinking.” The 6th Circuit thought not: “Given certain similarities between his behavior and Charlie Sheen’s behavior (both in real life and on television), it could also have been an attempt at rather ironic humor.”

United States v. Coleman, Case No. 16-3972 (6th Cir., Sept. 13, 2017)

– Thomas L. Root


9th Circuit Expands on Sentence Reduction Flexibility – Update for September 13, 2017

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


niceA170914Over the past 30 years of the Sentencing Guidelines, the U.S. Sentencing Commission has modified different guidelines to reduce their impact on many occasions. Most of those changes – such as eliminating the “recency” points, which added to criminal history if the new offense was committed within a few years of the end of a prior sentence – applied to people who were sentenced only after the change went into effect.

Some, however, were made retroactive to people already sentenced, which let inmates apply under 18 USC 3582 for a sentence reduction. The most notable of these were the three changes to the drug quantity tables in USSG 2D1.1, which lowered sentencing ranges based on the quantity of drugs a defendant was found to have. The changes, in 2007, 2011 and 2014, led to tens of thousands of sentence reductions being granted.

One would think that a reduction would be simple and mathematical. A defendant sentenced in 2013 had a final sentencing range of 87-108 months, based on possessing 1 kilo of methamphetamine and getting a 3-level reduction for acceptance of responsibility under USSG 3E1.1 and a criminal history of III. Let’s say the judge sentenced him in the middle of that range, to 96 months.

After the Sentencing Commission lowered all of the drug quantities in USSG 2D1.1(c) by two levels in 2014, the inmate files for a sentence reduction. Everything in the calculus – his acceptance of responsibility and criminal history category – remains the same except for lowering the base offense level for a kilo of meth from 30 to 28. A Level of 28, minus 3 levels for acceptance of responsibility, and a criminal history of III, yields a sentencing range of 70-87 months.

Under 18 USC 3582, the judge could decide to lower his sentence all the way to 70 months, lower it only part of the way, or not to lower it at all.

Pretty straightforward. The system worked well when the Guidelines were mandatory, that is, when a judge was required to sentence within the sentencing range except in very limited circumstances. But two factors have conspired to make a hash-up of the system.

snitch161004The first factor arises in cases where a defendant is awarded a downward departure under USSG 5K1.1. Many times, a defendant will end up with a sentence of half or less of what the Guidelines required. The second problem arises because of United States v. Booker, the 2005 case in which the Supreme Court declared mandatory Guidelines to be unconstitutional. Since Booker, the Guidelines have been advisory only, and judges have exercised their freedom to vary from suggested sentencing ranges with much greater frequency.

Because the rules say that a judge may not grant a sentence reduction motion where the adjusted sentencing range is higher than the sentence a defendant originally received, a lot of inmates were stranded, unable to benefit from a reduction of sentence.

The Sentencing Commission, sensitive to the government’s need to enjoy a steady flow of snitches, changed the processing rules so that an inmate with a USSG 5K1.1 departure would have his or her original guidelines before the downward departure adjusted, and then the departure added in again, usually on a percentage basis. If an inmate had a 300-month sentence with a 150-month downward departure, but the original sentencing range fell to 250 months, the court would use the new 250-month figure, and decrease it by 50% (the same ratio as the original departure bore to the original sentence). The inmate’s new sentence would end up being 125 months.

fasttrack170914Occasionally, it would get very squirrelly. In today’s case, for example, an illegal immigrant known in the case caption only as D.M. was caught at the border with a load of meth and heroin. He wisely decided to cooperate with the government, and did so quite well. Because as an illegal alien, he was deportable as soon as his sentence was served, he also signed up for what is known as “fast track” deportation, where he waived hearing and other rights so that ICE could rocket his butt out of the country as soon as he finished doing his time. “Fast track” deportation entitles a defendant to an additional 4-level downward departure under USSG 5K3.1.

But for his initial crime, D.M. must be a pretty nice guy. He quickly and efficiently cooperated with the law, and he agreed to let his deportation roll without legal roadblocks. When the Sentencing Commission’s 2-level drug quantity reduction came along in 2014, the government was so happy with him that it recommended D.M.’s sentence cut to the judge.

The request stymied the district court. D.M.’s judge expressed doubts whether, in reducing D.M.’s sentence, he could consider departures other than the substantial assistance departure. If the court could only consider the substantial assistance departure, then it could not reduce D.M.’s sentence because the minimum available sentence would be longer than the sentence D.M. was serving. Seeking clarification on the issue, the district court ordered further briefing and then demanded the government’s position “in writing” so it could fully consider the reasoning before ruling. The district court defined the issue as being “when a defendant previously received a substantial assistance departure as well as an additional departure for fast-track, in granting ‘a reduction comparably less than the amended guideline range,’ may the Court include in the calculation the fast-track departure?”

The district court reluctantly concluded that USSG 1B1.10 did not allow for the inclusion of the fast-track departure. It was looking like nice guys like D.M. were finishing last.

Last Friday, the 9th Circuit reversed the decision. Guidelines section 1B1.10(b)(2) – which governs sentence reductions like this one – prohibits reducing a sentence below the “minimum of the amended guideline range.” In determining a sentence reduction, USSG 1B1.10(b)(1) provides that “the court shall determine the amended guideline range that would have been applicable to the defendant if the amendment(s) to the guidelines… had been in effect at the time the defendant was sentenced.”

However, USSG 1B1.10(b)(2)(B), on which D.M and the Government both relied, provides a specific exemption to this floor, allowing a reduction where “the term of imprisonment imposed was less than the term of imprisonment provided by the guideline range applicable to the defendant at the time of sentencing pursuant to a government motion to reflect the defendant’s substantial assistance to authorities.”

The 9th admitted that 1B1.10 “is not a model of clarity. Nonetheless, we conclude that the most natural reading of the policy statement, its history, and the practical consequences of opposing interpretations, all favor the conclusion that it allows a court to consider additional applicable departures in an original sentence, not just the deduction specifically attributed to substantial assistance.”

niceB170914Thus, because D.M. had a substantial assistance departure, any other departures he may have gotten – in this case, the fast track departure – could be considered as well. If 1B1.10(b)(2) did not say that, the appeals court argued, then no one could tell what it means, and in such a case, “D.M. would nonetheless be eligible for consideration of a reduced sentence under the rule of lenity.”

D.M. is already out of prison and home in a nameless country located somewhat south of here. Sometimes, nice guys do not finish last after all.

United States v. D.M., Case No. 16-50243 (9th Cir., Sept. 7, 2017)

– Thomas L. Root


3rd Circuit Expands Second-and-Successive 2255 Rights – Update for September 12, 2017

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


We reported several weeks ago that the 4th Circuit had joined the 6th in dodging the lingering question of whether Johnson v. United States applied to mandatory Guidelines sentences. Now, the 3rd Circuit has stepped into the breach.

violence151213The Armed Career Criminal Act provides that people with three prior convictions for serious drug offenses or crimes of violence face stiff mandatory minimum sentences. A crime of violence is defined as one of four specific offenses – burglary, extortion, arson or use of explosives – or any other crime that has as an element the actual or threatened use of physical force.

Up to two years ago, the ACCA’s definition has a third subcategory known as the residual clause. A crime of violence also included any crime that carried a substantial risk of physical harm to another. In Johnson, the Supreme Court ruled that this residual clause was so vague that the average person could not tell what offenses counted and what did not. Such a vague statute violates a defendant’s 5th Amendment due process rights. Because Johnson meant that a number of people serving ACCA sentences were in fact innocent of their offense, the Supreme Court held that it was retroactive, that is, that people already convicted could apply to courts with a 28 USC 2255 motion to obtain relief.

At the time, the ACCA definition of “crime of violence” appeared elsewhere in the criminal code as well as in the Guidelines, where it was used in several sections, especially in Chapter 4 to label someone a “career offender.” A “career offender” under the Guidelines faces dramatically increased sentencing ranges. Naturally, defendants serving long career offender sentences promptly filed for relief as well, despite the fact that Johnson only encompassed the ACCA, and not the Guidelines.

limitone170912Every federal criminal defendant is entitled to file one and only one 2255 motion after conviction, that filing being due within a year of the conviction becoming final. In order to file a second 2255, the defendant must request permission from the Court of Appeals first. Permission is granted only under limited circumstances, where there is newly discovered evidence that convincingly proves innocence, or where a new rule of constitutional law – like the Johnson holding – is made retroactive.

Soon after Johnson was decided in June 2015, Tom Hoffner asked the 3rd Circuit for permission to file a second 2255. He argued that Johnson was the new rule of constitutional law that should apply to his career offender sentence, which was handed down in 2000. Back then, judges were required by law to follow the Guidelines, which only changed in 2005 when the Supreme Court declared mandatory Guidelines unconstitutional in United States v. Booker.

zax170912Remember Dr. Seuss’s story of a North-Going Zax and a South-Going Zax, who run into each other? Both are trying to get to their desired locations, but neither will move out of the way to let the other one pass. While both stand facing each other, unmoving, the world continues on moving and time passes by.

Tom’s case was something like that. The statute directs courts of appeal to decide applications to file second 2255s within 30 days. Holding that the 30-day language in 28 USC 2244 is merely “advisory,” the 3rd Circuit required over two years to decide whether Tom should be allowed to file a second 2255.

While Tom patiently waited, toe to toe with the government like the two Zaxes, the world did not stand still. First, the Supreme Court decided in Welch v. United States that the Johnson holding should be retroactive. Then, the Supreme decided last March in Beckles v. United States that Johnson would not be extended to people who were career offenders under the advisory Guidelines, leaving open the question of whether Johnson could be extended to people like Tom who had become career offenders under the mandatory Guidelines.

After that, two cases that many thought would decide whether Johnson extended to mandatory Guidelines people the 6th Circuit in United States v. Raybon and the 4th Circuit in United States v. Brown – ended up turning on the decidedly procedural question of whether the 2255s had been filed on time.

rely170912Finally, Tom’s time came last Thursday. The 3rd Circuit handed down 25 pages of careful thought-out analysis on the issue, concluding that while Johnson did not necessarily address Tom’s precise issue, 2244(b) only looks at whether the movant’s claim “relies” on the new rule of constitutional law. Nothing mandates that it be precisely the same point that the movant wants to claim. Thus, if Johnson is a new rule of constitutional law applying to language in the ACCA, and Tom “relies” on that rule in his argument that the same vagueness infirmity afflicts a guideline used to sentence him, that reliance is enough to come within the statute.

The Circuit held that in analyzing 2244 motions, the court needed to lean toward grant.

The context of Section 2244(b)… supports interpreting “relies” permissibly and flexibly… As explained above, Congress has mandated that the “grant or denial of an authorization… shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari.” 28 U.S.C. § 2244(b)(3)(E). This creates an asymmetry in the impact of our gatekeeping decision on a particular case… On one hand, if we erroneously deny authorization, the petitioner “will have no opportunity to appeal or seek rehearing.” On the other hand, “if we err in granting certification, ample opportunity for correcting that error will remain.” The district court will have the opportunity to determine anew whether the petitioner has “shown that the claim satisfies the requirements of this section,” and whether the habeas petition has merit… In turn, we may review the district court’s decision.

It’s not a done deal that Tom will win the 2255 motion he now has permission to file (although you could be forgiven for reading it like the 3rd thinks he will). But the Circuit seems pretty convinced that there’s some merit in his claim.

The significance of this decision, which the 3rd Circuit issued as precedential, is its thoroughness in discussing the 2244 process. In a world where most decisions on second-and-successive 2255s are three-page affairs, and where the statutory limitations on certiorari mean that the Supreme Court will never be able to opine on the matter, this decision is as much guidance as any court has ever given on 2244 practice.

In re Hoffner, Case No. 15-2883 (3rd Circuit, Sept. 7, 2017)

– Thomas L. Root


Hurricane Buncombe Strikes Federal Prisons – Update for Monday, September 11, 2017

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


Buncombe170911The hopemongers are at it again. Several inmates readers have written to us about an email newsletter they received during the past couple of weeks, from a Chicago-area group talking about something it calls the “First Offender initiative.”

Under the Sentencing Guidelines, someone with zero or one criminal history point is considered to have a Criminal History of I. It’s a good place to be: Criminal History I people are on the left-hand column of the Sentencing Table, and get the lowest sentencing ranges.

Yet, there are some Criminal History I folks who have prior offenses that have timed out (and are not counted) or even a point for some recent misdemeanor. Others are as pure as Mother Teresa. Last December, the USSC proposed an amendment for 2017 to give the Mother Teresas of the federal criminal world a break. It floated the idea of a reduction in offense level for those folks, and asked for public comment.

teresa170911Then the USSC ran out of members, as terms expired and too few were left for a quorum. The Senate finally approved two new members in late March, but by then, it was too late for any 2017 amendments. So this November 1, 2017, there will be no Guidelines changes.

A few weeks ago, the USSC re-issued the same proposals it had announced last December, including the proposal for a break for some Crim History I people. The Commission wants public comment on the idea, including on whether it should go with a 1- or a 2-level reduction, and whether to be eligible, a defendant just needs zero criminal history points or a completely clean record for his or her entire life up to that point.

No one knows whether the USSC will decide this should become an amendment. If it does, no one knows which options it will go with. Even if the Commission adopts it next April as a proposed amendment, it will not go into effect until November 2018.

If it does become effective, it will not be retroactive at that time. Retroactivity will require a whole new notice-and-comment process (and six-month waiting period). For the Guidelines change to benefit anyone currently locked up, retroactivity has to be approved by the USSC and not vetoed by Congress. Think maybe spring 2019 at the earliest.

snwowhite170911Enter the hopemongers. An Illinois outfit we will not name sent an inmate newsletter in the last week or so saying “while the Sentencing Commission works to incorporate final comments into the holdover 2016 changes before they are published in the Federal Register, and the 180-day countdown begins, there is plenty of time to study those individuals who appear initially to qualify for this retroactive First Offender relief…” The newsletter urges people to get an “individualized analysis of their case so that it can be incorporated into a petition for relief.”

So what’s wrong with this nonsense? Plenty. First, these are not final comments; they are a complete do-over. Comments are due in October and reply comments in November. The USSC has given no indication it intends to start the 180-day clock until next April, for effectiveness in November 2018, as usual.

Second, no one yet knows who will be eligible and what the eligible will be eligible for. That makes it pretty hard to “study those individuals who appear initially to qualify…”

Third, calling it a “retroactive First Offender relief” is an utter falsehood. The USSC has not even suggested, let alone said, anything that would lead people to believe that this amendment – even if adopted – will be retroactive.

snakeoil170911But the hopemongers’ primary purpose is to get prisoners and their families to pay money for a bogus “individualized analysis.” Guess there’s nothing wrong with turning a slight breeze of a hope into a get-out-of-prison hurricane is all right: after all, the targets are just inmates, and they deserve any misfortune that befalls them, right?

U.S. Sentencing Commission, Proposed Amendments to the Sentencing Guidelines (Aug. 25, 2017)

– Thomas L. Root



“Public Shaming” Leads to 8th Amendment Sex Registration Holding – Update for September 8, 2017

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


The registration systems for ex-inmates with sex offenses is state based. Congress decreed in the Sex Offender Registration and Notification Act (SORNA) that every state would have a system, and then imposed a federal requirement on people convicted of sex offenses that they must register under penalty of law.

whip170911The public loves state registration laws, because they like to identify and shame ex-offenders for crime committed years before, running them out of housing, hounding them out of jobs, and even trying to break up their families. Sounds like punishment? The Supreme Court said not, in Smith v. Doe, which in 2004 held that Alaska’s Sex Offender Registration Act (“SORA”) was not punitive.

For a decade since it was handed down, Smith v. Doe shut down constitutional challenges to state SORAs. In the last few years, however, federal courts have been willing to recognize that the landscape has changed.

A little more than a week ago, a Colorado district court recognized what anyone who has faced the burdens, obstacles, and dangers of life on the offenders registry already knows: the punitive impact of the state’s SORA far outweighs any value it might have in protecting the public. The district judge held that Colorado’s registration statute violates the 8th Amendment by imposing cruel and unusual punishment, and violates a registrant’s 14th Amendment procedural and substantive due process rights.

The Colorado court held that Smith v. Doe’s “words ring hollow that the state’s website does not provide the public with means to shame the offender when considering the evidence in this case.” The Supreme Court “did not foresee the development of private, commercial websites exploiting the information made available to them and the opportunities for ‘investigative journalism’ or “the ubiquitous influence of social media.”

shaming170911The district court noted that Justice Kennedy, who wrote Smith v. Doe, said in last spring’s Packingham v. North Carolina decision that “the troubling fact that the law imposes severe restrictions on persons who already have served their sentence and are no longer subject to the supervision of the criminal justice system is… not an issue before the Court.” But it was in front of the Colorado district court, which said, “the evidence demonstrates that the very real restraints on Plaintiffs’ abilities to live, work, accompany their children to school, and otherwise freely live their lives are not simply a result of the crimes they committed, but of their placement on the registry and publication of their status…” Colorado’s SORA looks “far more like retribution for past offenses” than a public safety regulation, the Court said.

This decision joins similar court ruling in Alaska, Maine, Michigan, New Hampshire, Oklahoma, and Pennsylvania. Given the significance of SORNA and the state schemes, Supreme Court review within the next few years is probable.

Millard v. Rankin, Case No. 1:13-cv-02046 (D.Colo., Aug. 31, 2017)

– Thomas L. Root


Obama Clemency Initiative Was As Arbitrary As We Thought It Was – Update for September 7, 2017

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


70908When President Obama (remember him?) announced an initiative in 2014 to grant clemency to people serving unduly harsh sentences in the federal prison system, there was a land rush to apply. Ultimately, about 12% of the federal prison submitted applications seeking executive grace.

By the time the dust settled on the morning of The Donald’s inauguration, President O had granted 1,696 of the applications filed. This number, about 7% of all applicants, was dwarfed by the 7,881 applications left stranded when the Obamas fled the coming Trumpocalypse in a Marine helicopter.

Obama leaves town, stranding 7,800 commutation applications.
Obama leaves town, stranding 7,881 commutation applications.

Many of the inmates whose applications were denied complained that racism played a role, favoritism played a role, or simply that the clemency staff was throwing darts at a wall, and granting applications they happened to hit. Last Tuesday, the U.S. Sentencing Commission issued a report on the late great 2014 Clemency Initiative, and what it found suggests that the race-conspiracy people are wrong, but the dart-at-the-wall folks are spot-on.

Initially, the report – entitled “An Analysis of the Implementation of the 2014 Clemency Initiative” – does not especially settle the dark theories, espoused chiefly by white inmates, that President Obama was only interested in pardoning minority inmates. The Bureau of Justice Statistics reports that 53% of all drug inmates are black, and 57% are Hispanic. However, 71% of all clemency recipients were black, 19% were white, and 9% were Hispanic.

The fact that crack cocaine defendants have been 81% black, and that crack sentencing ranges have traditionally been stratospheric, thanks to the previous 100:1 ratio of crack to powder – may account for this. However, it would seem that the people with the most right to complain about being excluded from clemency would be Hispanics.

star170908At the same time, the Report does substantiate the widely-held belief that the Clemency Initiative shut down any chances for commutation of sentences other than drug offenses. The real news, however, is that despite its criteria and processing standards and lofty rhetoric and self-congratulatory righteousness, the Clemency Initiative was as arbitrary as a Star Chamber proceeding.

At the outset, the Department of Justice announced six criteria for clemency. Initially, those were considered to be “processing” criteria, but later morphed into “eligibility” criteria. It turns out they could have been gumdrops or pixie dust, for all of the relevance they had to the process. The standards were that to qualify, a clemency applicant

• would have had to have gotten a lower sentence under   txxxx  h existing law;
• must be a low-level, nonviolent offender;
• must have served at least 10 years;
• must not have a significant criminal history;
• must have had good conduct in prison; and
• must have no history of violence

Deputy Attorney General James Cole made it clear at the outset that “the initiative is open to candidates who meet six criteria” and that “a good number of inmates will not meet the six criteria.”

The Sentencing Commission Report contains good news and bad news. The good news (already known to a lot of people) is that DOJ was just kidding. It turns out that people didn’t have to ring all six bells after all: only 54 of the 1,696 people receiving a commutation met all of the six criteria. Only 5% of the winners met five of the criteria, 35% met four, 38% met three, 19% met two and 3% met only one. Two guys got clemency after going 0-6: they were career criminals, violent, had bad conduct, were high-level drug people and hadn’t yet done 10 years. Sweet for them.

factorschart170908It turns out that 62% commutation recipients had criminal history scores of 3 points or higher, 23% were assigned to the highest Criminal History Category, and 16% were career offenders. Thirty percent had serious misconduct while in prison, and 13% had violent misconduct in prison.

Now the bad news, which was also suspected (if not known) by many people. Examining all the announced Clemency Initiative factors together, the Sentencing Commission report estimated that 2,687 inmates met all six of the Clemency Initiative criteria, yet only 92 of the got clemency. “Therefore,” the Report drily states, “there were 2,595 offenders incarcerated when the Clemency Initiative was announced who appear to have met all the factors for clemency under the Initiative at the end of President Obama’s term in office but who did not obtain relief.”

factorschart170908“The Obama administration’s 2014 clemency initiative helped reduce sentences for thousands of federal defendants at many times an historic rate,” the Marshall Project gushed the other day, “but it still was not as efficient or as organized as it could have been, a new federal report concludes. So many more candidates met the requirements of clemency than were granted it.”

Let’s call it what it is. Despite the proclaimed “six criteria,” nearly 2,600 inmates who were perfect fits were ignored or denied while half of the clemency winners met only one-half or fewer of the standards. Obama Clemency was not a process: it was a crap shoot (unless, of course, you happened to be a trans-sexual darling of the left convicted of espionage against America).

tainwreck170908“Not as efficient or organized?” The same could be said of a train wreck.

U.S. Sentencing Commission, An Analysis of the Implementation of the 2014 Clemency Initiative (Sept. 5, 2017)

– Thomas L. Root


Cleaning Up After the Long Weekend – Update for September 5, 2017

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

We had a lot of short notes included in yesterday’s newsletter to federal inmates. We’re publishing those posts below.


The supervised release statute, 18 USC § 3583, provide that if a person on supervision violates, the court may send him or her back to prison for a specified term, and then impose more supervised release. The maximum terms of reimprisonment authorized by the statute for an supervised release violation of are limited based on the severity of the original crime of conviction, not the conduct that resulted in the revocation.

Some types of offenses are just too offensive. Today, it's kiddie porn... tomorrow, it may be jaywalking. That's why we have laws, to save us from the Flavor of the Day.

However, 18 USC § 3583(k) provides an exception. If the person subject to supervised release is a sex offender, and the conduct resulting in the revocation is a specified sex offense, the court is required to “revoke the term of supervised release and require the defendant to serve a term of imprisonment… [for] not less than 5 years.”

Last Thursday, the 10th Circuit ruled that 3583(k) violated Apprendi v. New Jersey and Alleyne v. United States, in that a mandatory prison sentence was increased based on a judge’s finding of fact instead of a jury finding beyond a reasonable doubt. The Court said § 3583(k) “strips the sentencing judge of discretion to impose punishment within the statutorily prescribed range, and… imposes heightened punishment on sex offenders expressly based, not on their original crimes of conviction, but on new conduct for which they have not been convicted by a jury beyond a reasonable doubt and for which they may be separately charged, convicted, and punished.

United States v. Haymond, Case No. 16-5156 (10th Cir., Aug. 31, 2017)



Inmates are notorious for filing badly-written Freedom of Information Act requests. It’s surprising however, to see a lawyer file a request as convoluted as the one attorney Steve Yagman sent to the CIA.

Steve asked for “records/information” on “the names and company/organization affiliations of any CIA employees, agents, operatives, contractors, mercenaries, and/or companies who are alleged to have engaged in torture of persons.” Specifically, he wanted the names and affiliations of those “as to whom President Obama stated that ‘we tortured some folks’ on August 1, 2014: that is, who are the individuals whom the word ‘we’ refers to?”

spy170905The CIA wrote Steve back, explaining correctly that FOIA does not require agencies to answer questions. The agency invited Steve to rewrite his request. Steve did not, but instead sued. The district court ruled Steve’s letter did not constitute a request for records, and thus that he had not exhausted administrative remedies. For that reason, the district court said, it lacked subject-matter jurisdiction to hear the case.

Last week, the 9th Circuit reversed. The Court ruled that because the goal of the FOIA was to provide government information to ordinary citizens, FOIA requests from citizens had to be construed liberally. Sure, Steve’s request was a hot mess, but the Court said Steve’s failure to reasonably describe the records he wanted went to the merits of his claim, and was not a jurisdictional issue.

The Circuit rejected the argument that the request had to reasonably describe the records sought to satisfy “exhaustion and exhaustion itself is jurisdictional,” the Circuit said, “we reject that argument as well. Significantly, FOIA does not expressly require exhaustion, much less label it jurisdictional, nor does FOIA include exhaustion in its jurisdiction-granting provision… Therefore, exhaustion cannot be considered a jurisdictional requirement.”

Yagman v. CIA, Case No. 15-55442 (9th Cir., Aug, 28, 2017)


The enhancements on the catch-all federal drug offense, 21 USC § 841(b), are tough: any prior state “felony drug offense” can double the mandatory minimum, or even pop it up to life. The term “felony drug offense” is defined in 21 USC § 802(44) as “an offense that is punishable by imprisonment for more than one year… that prohibits or restricts conduct relating to narcotic drugs, marihuana, anabolic steroids, or depressant or stimulant substances.”

Luis Ocampo-Estrada had a prior conviction under Cal. Health & Safety Code 11378, a drug trafficking offense. California law makes the particular illegal drug an element of the offense, and federal courts used the modified categorical approach to determine whether the crime fits within the “felony drug offense” definition.

yellowpill170905The documents filed by the government showed that Luis had pled to an 11378 offense, but did not specify exactly what kind of drug was the basis for the conviction. The government has the burden to prove a prior conviction qualifies as a felony drug offense, but here offered only the abstract of judgment and the state-court minutes from the pronouncement of judgment, neither of which answered “the central question before us: whether Ocampo pleaded guilty to a controlled-substance element of § 11378, which is encompassed by the federal “felony drug offense” definition…”

United States v. Ocampo-Estrada, Case No. 15-50471 (9th Cir., Aug. 29, 2017)


The 8th Circuit last week ruled that the Wisconsin felony of battery of a law enforcement officer is categorically a crime of violence.

violent170315The defendant, Patrick Jones – who had been convicted of being a felon-in-possession of a firearm under 18 USC § 921(g) and the Armed Career Criminal Act18 USC 924(e) – argued that the Wisconsin statute’s definition of bodily harm includes “illness,” a person could be convicted under Wisconsin Statute 940.20(2) merely for attempting to give an officer a cold. But the Circuit found that Wisconsin cases provided “no realistic basis to conclude that courts would find such low-level conduct sufficient to support a conviction under the statute.” A theoretical possibility that a state may apply its statute to conduct falling short of violent force is not enough to disqualify a conviction; only a realistic probability will do.

The 8th said “The simple fact that the word “illness” is included in the definition of bodily harm is insufficient to render the statute overbroad.”

Meanwhile, 2,500 miles northwest of Minneapolis, the 9th Circuit sitting in Anchorage, Alaska, heard a case in which Dave Geozos – also sentenced under the ACCA – argued that his conviction for armed robbery in Florida was not a crime of violence. The Circuit agreed, holding first that the fact that a robbery is committed while carrying a gun does not make the offense any more violent, because the gun can remain concealed and unused. As for robbery, while it requires more force “than the force necessary to remove the property from the person. Rather, there must be resistance by the victim that is overcome by the physical force of the offender.” However, the amount of resistance can be minimal.

The 9th held that “neither robbery, armed robbery, nor use of a firearm in the commission of a felony under Florida law is categorically a ‘violent felony’. We recognize that this holding puts us at odds with the Eleventh Circuit, which has held, post-Johnson I, that both Florida robbery and (necessarily) armed robbery are ‘violent felonies’ under the force clause.”

The split could set up a Supreme Court review, if the government decides to push the issue. Meanwhile, prisoners with Florida robbery predicates may start figuring out how to get transferred to a joint in the 9th Circuit.

Jones v. United States, Case No. 16-3458 (8th Cir., Aug. 29, 2017)

United States v. Geozos, Case No. 17-35018 (9th Cir., Aug. 15, 2017)

Thomas L. Root


3rd Circuit Losing Patience with “Stash House” Reverse Stings, Approves Easier Standard for Defense Discovery – Update for Friday, September 1, 2017

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


We recall a counter-culture cartoon from the early 1970s criticizing big business getting into the environmental business: one fat cat telling another, “We get paid to make the mess. We get paid to clean it up. Business couldn’t be better.”

mess170901The old punch line comes to mind every time we read another “stash house” reverse-sting case. The story line is well known to everyone except, it would seem, the black guys in the poor part of town. An ATF undercover officer convinces some poor sap to rob a fantasy drug “stash house” that invariably is alleged to contain 10 kilos of drug or more. The unemployed “mark,” who has a felony record that makes getting a job problematic, doesn’t have two nickels to rub together. But he can perform simple math, and the math is 10 kilos of coke at $40,000 a key divided five ways equals a bigger pile of money than he’s ever seen before. So he recruits some other guys as desperate as he is, and they all gather with whatever guns they can find, in order to set off with the undercover guy to the target stash house.

There is no stash house, but there is a SWAT team ready to take them down.

The ATF manufactures the crime. The ATF performs the bust. Business couldn’t be better.

Notice we said “poor black guy.” That’s not a stereotype, but rather an acknowledgement of fact. cover ATF agent, who had developed the scenario from the ground up. The cocaine did not exist. The entirely fictitious 10 kilograms of cocaine triggered a very real 20-year mandatory minimum for Askia, contributing to a total sentence of 264 months in prison — far more than even the statistics show that the defendants trapped in the reverse sting net are overwhelmingly black, so much so that some serious charges of discrimination have been raised against the practice.

From a defense perspective, it’s very hard to make a case for selective prosecution. The prevailing standard pretty much requires that you have the smoking gun in your hand in order to even win the right to engage in discovery to try to find the smoking gun. Exacerbating the problem is the obvious: you’re not arguing your client did not do what the indictment said he did, but rather arguing that how the government ensnared him is so contrary to fairness as to violate his right to due process of law.

The courts do not much like “stash house” cases, but they continue to hold their noses and uphold convictions. That happened earlier this week in Philadelphia, but the 86-page decision lightens the load for defendants attacking the “stash house” scheme and implies that the courts’ patience may be nearing an end.

stash170901The story is quotidian: Acting on what appeared to be insider information from a drug courier, Askia Washington and his three co-conspirators planned to rob a Philadelphia “stash house” where they thought 10 kilos of cocaine were being stored for distribution. They discovered on the day of the robbery that the “stash house” was a trap set by law enforcement. Their “courier” was an under ringleader of the conspiracy received.

His co-conspirators took pleas (getting sentences from 27 months to 180 months). Askia went to trial, beating an 18 USC 924(c) count but losing on the drug conspiracy and Hobbs Act counts. The jury found that the conspiracy involved at least 5 kilograms, and a very old drug possession conviction Askia had was used to increase the mandatory minimum sentence to 240 months.

Before trial, Askia tried to get government records to support his claim that Philadelphia-area “stash house” sting targets were selected by race, but the district court denied him on the ground that he could not show evidence of discriminatory effect and discriminatory intent, that is, evidence that similarly situated individuals of a difference race or classification were not prosecuted, arrested, or otherwise investigated.

dog170901This of course has the flavor of a dog chasing its tail. You need the evidence you’re trying to obtain in order to get permission to obtain it. But that has heretofore been the standard for getting the right to pursue a selective prosecution claim.

With considerable reluctance, the 3rd Circuit upheld Askia’s conviction and sentence, but not without a lot of misgiving:

In sum, we conclude that the 5 kilograms of cocaine charged in the indictment and found by the jury did not amount to an impermissible manipulation of sentencing factors by the government. To the extent that the fictitious 10 kilogram quantity is relevant, we find too that Washington has shown neither improper manipulation nor prejudice. Nevertheless, we remind the government that we have expressed misgivings in the past about the wisdom and viability of reverse stash house stings. That this case fell on the safe side of the due process divide should not be taken to indicate that all such prosecutions will share the same fate. As one of our colleagues said in a prior case, “I do not find it impossible for the Government to exercise its discretion rationally to set up stash house reverse stings. But I share the concern that this practice, if not properly checked, eventually will find itself on the wrong side of the line.

The Circuit differentiated between “selective prosecution” claims and “selective enforcement” claims. “‘Prosecution’,” the 3rd said, “refers to the actions of prosecutors (in their capacity as prosecutors) and ‘enforcement’ to the actions of law enforcement and those affiliated with law-enforcement personnel.” The key distinction between prosecutors and law enforcement is that prosecutors are “protected by a powerful privilege or covered by a presumption of constitutional behavior”… while FBI and ATF agents “regularly testify in criminal cases” and have their credibility “relentlessly attacked by defense counsel.”

boot170111The Circuit held that in “stash house” cases, a district court may conduct a limited pretrial inquiry into the challenged law-enforcement practice on a proffer that shows some evidence of discriminatory effect, saying that “the proffer must contain reliable statistical evidence, or its equivalent, and may be based in part on patterns of prosecutorial decisions… even if the underlying challenge is to law enforcement decisions.”

Although Askia’s conviction remains in place, the Circuit remanded the case for the district court to permit the limited discovery. If evidence of selective enforcement was developed, the district court is free to dismiss the indictment.

The lone dissenting judge blasted Askia’s 265-month sentence:

Surely, sentences should bear some rational relationship to culpability. Otherwise, the entire enterprise of criminal sanctions is reduced to little more than an abstract matrix of numbers and grids. Yet, on this record, there is absolutely nothing to suggest that Washington would not have conspired to rob a stash house containing, for example, a kilogram less than the 5-kilogram mandatory trigger. No mandatory minimum would have “applied” had this trap been baited with the illusion of a stash house containing four kilograms (translating roughly to upwards of $160,000 in value based on the trial testimony)—thereby placing him beyond the reach of the perceived need to impose a 20-year statutory mandatory minimum sentence.

United States v. Washington, Case No. 16-2795 (3rd Cir., August 28, 2017)

– Thomas L. Root