6th Circuit Bans Government Nostrums at Sentencing – Update for October 23, 2017

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


After a federal inmate serves a prison sentence, he or she begins a period known as supervised release. SR is a fancy term for “parole,” except that unlike traditional parole, it doesn’t reduce a sentence. Instead, by law, SR is tacked on to every sentence, even life sentences (which end only with a pine box).

wencelausDPRK171023While on supervised release, an offender is under the thumb of a U.S. Probation Service officer, who has great latitude to either leave the offender largely alone or impose oppression that makes Kim Jong Un look like Good King Wencelaus. While the object of SR is to assist the offender in his or her reintegration into society, one supervising probation officer candidly told us a few years that his district violates a third of all offenders under their supervision.

Upon violation, an offender may be continued on supervision, have supervision extended, or sent back to prison. Because the standard of proof for a supervision violation is much lower than the “reasonable doubt” standard of criminal law and the evidentiary standards are loosey-goosey by comparison to a criminal trial, SR is a Sword of Damocles for ex-offenders trying to get back on their feet.

Of course, there are those offenders – like Ernie Adams, a 71-year old who has been addicted to opiates for 40 years – who just cannot conform. Ernie was on supervised release after serving a drug conspiracy sentence. Unsurprisingly for his addiction history, he failed drug tests three times in as many weeks, and got violated.

What do you expect of an addicted person? It’s a disease. You might as well demand that a person with bronchitis not cough.

fake171023Nevertheless, continued drug use is forbidden by the conditions governing supervised release, and Ernie’s supervised release was revoked. Ernie’s Guidelines range for his SR violation was 21-27 months. At sentencing, the judge talked extensively about Ernie’s substance-abuse problems and rehab failures. The government argued at sentencing that long-term heroin addicts like Ernie needed 18 months for their brain chemistry to “reset” in order for future treatment to be effective. The court nodded in sage agreement to this scientific stat, but cut Ernie a break by sentencing him to 18 months, three months below the bottom of the Guidelines range.

You’d think Ernie would figure he’d dodged the bullet, but you’d be wrong. Ernie appealed, arguing the sentence was procedurally and substantively unreasonable. Last week, the 6th Circuit agreed.

It turns out that the government’s talk about the 18-month brain “reset” was fake science. The government countered, however, that while what it told the court was as phony as phrenology, that did not matter, because Ernie had no right to the government telling the court the truth. Actually, the government’s argument was a little more nuanced than that, contending that a defendant does not have a due-process right “to be sentenced based on accurate information… beyond the facts of the defendant’s own actions and criminal record.”

The government’s argument was as fake as its “science.” The 6th Circuit said “the due-process right to be sentenced based on accurate information is not limited to information solely about the defendant’s actions and criminal history.” Instead, if the bad science embraced by the sentencing court was an “important factor” in calculating Ernie’s sentence, Ernie’s rights were violated.

pseudo171023The Circuit held that the government’s 18-month brain “reset” was “an unsubstantiated assertion that has the veneer of accuracy due to its supposed status as a product of scientific research.” And it was persuasive: the district court told Ernie it had chosen the sentence length “because you need that long to reset and maybe get another, maybe get another chance at remaining clean and sober.” The Circuit concluded “the district court, therefore, violated Adams’s due-process right when it incorporated this unreliable information in its sentencing decision, and thus this sentence is procedurally unreasonable.”

The 6th Circuit said that while it presumes that a sentence below or within the sentencing range is substantively reasonable, that’s not invariable. Here, Ernie argued that the district court imposed a substantively unreasonable sentence because it to impose a sentence of imprisonment and extended the length of the sentence in order to rehabilitate him. The Circuit noted that the Supreme Court has held that extending a sentence in order to rehabilitate is prohibited, and concluded that the sentence – even though it was below-guidelines – was substantively unreasonable.

United States v. Adams, Case No. 16-2786 (6th Cir., Oct. 11, 2017)

– Thomas L. Root


1st Circuit Says Bank Robbery is Still Violent – Update for October 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.


paperwork171019Since the Supreme Court ruled two years ago in Johnson v. United States that the “residual clause” of the Armed Career Criminal Act was unconstitutional, many forests have been felled to produce the paperwork blizzard that has buried federal courts in sentence challenges.

The ACCA requires that if a convicted felon caught with a gun has three prior convictions for crimes of violence or drug offenses, the sentence that must be imposed is no longer zero to 10 years, but rather 15 years to life. There are three ways a prior offense may be a “crime of violence” under the ACCA. The offense must be either

(1) an enumerated offense (burglary, arson, extortion or use of explosive”); or

(2) an offense that has as an element the threatened use or actual use of physical force against a person; or

(3) an offense that presents a significant risk of physical harm to others.

The first clause is called the “enumerated clause,” because it enumerates certain offenses that count, period. The second is called the “force clause” or “elements clause,” because it relates to crimes that include elements of purposeful force. The third is called the “residual clause,” because it sweeps up what’s left.

violence160110In Johnson, the Supreme Court said the residual clause was so vague that no one could figure out what it meant. For that reason, it was unconstitutional to use the residual clause to make someone liable under the ACCA. The problem was that the same (or very similar) language was used elsewhere in the same statute (18 USC 924) and the criminal code (such as in 18 USC 16(b)). One might think that Johnson invalidated the residual clause in those definitions, too. But one might be wrong…

Whether Johnson invalidates the residual clause in the 18 USC 16(b) “crime of violence” definition was argued a little over two weeks ago in the Supreme Court. That decision will issue before next summer. Meanwhile, battle continues to rage in the lower courts, leading to some rather surprising claims.

butch171019We confess here that we like bank robbery. It’s old fashioned – you know, Jesse James, Bonnie and Clyde, Willie Sutton – and an easy crime to understand. In a federal criminal world of meth labs, insider trading, trading in incorrectly-packeted lobster and throwing back undersized fish, bank robbery is a crime that’s pretty easy to understand. We suspect that someone like Virginia Governor Bob McDonnell never felt a frisson of illicit thrill when a political donor bought his wife an Oscar de la Renta dress, not the way Butch Cassidy was pumped when he knocked over the San Miguel Valley Bank. After all, when was the last time you saw a movie about the Feds trying to take down a CEO for selling tainted peanut butter?

Jeff Hunter was a bank robber, now doing 270 months for the offense. The last 60 months are a consecutive sentence for using a gun during a crime of violence. After Johnson, Jeff filed a post-conviction motion claiming that the extra 60 months was unwarranted, because while he had a gun, a bank robbery is no longer a crime of violence after Johnson.

knifegunB170404This might seem counter-intuitive to you. Of course a bank robbery is a crime of violence, you say. Just as you never should take a knife to a gunfight, you need never take a gun to a nonviolent crime. Who’s ever heard of an armed inside trader?

Last week, the 1st Circuit agreed that while Johnson may sweep broadly, it doesn’t sweep that broadly. No matter what the constitutional status of the residual clause might be, the Circuit said, Jeff’s offense remains a “crime of violence” because of the force clause. The 1st has already held that a bank robbery “has as an element the use, attempted use, or threatened use of physical force against the person of another” for purposes of the career offender guidelines (USSG 4B1.2(a)(1)), which use the same “crime of violence” definition as does the ACCA.

But the 924(c) definition varies slightly. All of the others refer to using physical force against another person. The 924(c) subsection definition refers “use of physical force against the person or property of another.”


Aha! Jeff argued that there is a difference. The 1st agreed, but said that difference does not help him. “The addition of ‘or property’ renders § 924(c)(3)(A)’s scope greater than that of § 4B1.2(a)(1),” the court said. In other words, under the ACCA, if Butch Cassidy had robbed the Union Pacific Overland Flyer by threatening to shoot the engineer, that would have been a crime of violence. If he had robbed it by threatening to shoot the engineer’s dog, it would not have been. shootdog171019However, if he robbed the First National Bank of Winnemucca by threatening to shoot the branch manager’s dog (which was “property”), the offense would been just as much a “crime of violence” as if he had threatened to shoot the manager himself.

Ah, the beauty of the law! Because the statute says bank robbery is effected by “by force and violence, or by intimidation,” the 1st Circuit said, “we hold that federal bank robbery, and a fortiori federal armed bank robbery, are crimes of violence under the force clause of § 924(c)(3).”

Hunter v. United States, Case No. 16-2483 (1st Cir., October 16, 2017)

– Thomas L. Root


Smarter Sentencing Act: Just Like Before, But With More Sponsors – Update for October 17, 2017

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


deja171017We were a bit befuddled when Sen. Mike Lee (R-Utah) announced by press release on October 5, 2017, that he and Sen. Richard Durbin (D-Illinois) had “reintroduced the Smarter Sentencing Act of 2017.” It was not clear whether this was a complete retread of the Smarter Sentencing Act of 2015, S. 502, that died without a vote last December, or whether it was new and improved (or just different).

The confusion was compounded because we were unable to locate a draft of the Smarter Sentencing Act of 2017 anywhere over the next 10 days. We called Sen. Lee’s office last week for a copy of the measure, and received our copy yesterday.

Yes, indeedy, the 2017 version of the bill is identical to old S.502, except for a boatload more sponsors (21 from both sides of the aisle). Highlights of the measure include

• expanding the “safety valve” contained in 18 USC 3553(f) – which permits court to relieve low-level drug offenders with relatively clean records to avoid mandatory minimum sentences under some circumstances – to include people with slightly more criminal history.

Currently, a single misdemeanor in one’s background can disqualify the defendant from “safety valve” consideration. Under the proposed change, a couple of felonies will be too much, but more young defendants facing their first serious criminal charge would be sentenced under a scheme that let the judge weigh individual factors rather than applying an inflexible and harsh minimum sentence.

• making the Fair Sentencing Act of 2010, which reduced disparity between crack cocaine and powder cocaine from 100:1 to 18:1, retroactive.

cracksentence171017In the wake of basketball star Len Bias’ death in 1988, Congress passed the draconian Anti Drug Abuse Act, which equated one gram of crack cocaine to 100 grams of cocaine powder. As a result, drug sentences – which are driven by the amount of drug involved in the crime – soared. The defendants in crack cases were overwhelmingly black.

After years of urging by the Sentencing Commission and studies showing that Congress’ rationale for the ADA – that crack was more addictive and crack offenses more violent – was bunkum, Congress passed the Fair Sentencing Act in 2010. Unfortunately, to convince recalcitrant senators to support it, the retroactivity portions of the law were stripped out. Thus, a crack defendant sentenced August 3, 2009, was hammered with the 100:1 ratio, while a defendant sentenced August 3, 2010, was treated more in line with what a cocaine powder defendant would face.

The SSA would make the FSA retroactive, permitting defendants sentenced harshly prior to the adoption of the law eligible for resentencing, at their judges’ discretion, to a more reasonable term.

• cutting mandatory minimums in the drug trafficking laws.

Currently, the Byzantine sentencing regime in 21 USC 841(b) provides differing levels of mandatory minimum sentences for various quantities of different drugs, various number of prior drug felonies, and whether death or serious injury resulted from the drug dealing.

hammer160509Under the SSA, a 10-year mandatory minimum sentence would become 5 years, 20 years would become 10 years, five years would become two years. Right now, a defendant with two prior drug felonies (no matter how old) caught with five kilos of cocaine gets a mandatory life term: no ifs, ands or buts. Sure, the public’s thirst for vengeance is slaked by such toughness. But somehow, when the public sees the same defendant, bent and gray, shuffling across the prison yard a quarter century later, the tough sentence seems pretty wasteful.

The SSA would turn the mandatory life sentence into a mandatory minimum of 25 years.

• cutting mandatory minimums in 21 USC 960 for drug mules carrying drugs into the country courier in half.

mule171017Your poor, dumb peasant from El Cocador humping marijuana across the border or clueless young woman flying in to JFK from East Slobovia with heroin in the liner of her suitcase… These are the couriers, the lowest of the low-level defendant being paid maybe two shekels for hauling someone else’s big score. Under 21 USC 960, the drug importation criminal statute, they get hammered with the same mandatory sentences as Mr. Big, the kingpin staying safely offshore.

The SSA would cut the mandatory minimums applicable to couriers by half.

The bill does not explicitly make any change it proposes retroactive other than the extension of the FSA, but a fair reading of Section 5 of the SSA suggests that the Sentencing Commission should do so according to its retroactivity procedures.

Some of the Smarter Sentencing Act provisions echo those of the Sentence Reform and Corrections Act of 2017, introduced two days earlier. We anticipate that the provisions of the two bills will be blended into a single package by the Senate Judiciary Committee.

S.1933, Smarter Sentencing Act of 2017 (introduced Oct. 5, 2017)

– Thomas L. Root


5th Circuit Says Defendant Need Not Prove Sentencing Under Residual Clause – Update for October 16, 2017

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


Lawrence Taylor was convicted of being a felon in possession of a gun, and received a 15-year Armed Career Criminal Act sentence because he had three prior state convictions that the judge held to be crimes of violence.

After the Supreme Court’s Johnson v. United States decision, Lawrence filed a post-conviction motion under 28 USC 2255 claiming that one of his prior offenses, a Texas conviction for injury to a child, no longer qualified as one of the three offenses needed to impose an ACCA sentence.

Up until Johnson, the ACCA definition of a crime of violence had three subsections. First, four specific offenses – burglary, arson, extortion and use of explosives – were categorically included. This subset is known as the “enumerated crimes” clause. Second, all crimes that involved use or threat of physical force against another person were included. This subset is known as the “elements” clause. Finally, a “residual clause” held that a any crime posing a substantial risk of physical harm to another was considered a crime of violence as well. Johnson held that the “residual clause” was unconstitutionally vague, because no one could reasonably tell whether an offense would qualify under it or not.

McBryde171016When Lawrence was sentenced back in 2006, the district court did not specify whether the injury-to-a-child predicate offense qualified under the residual clause or the elements clause. At the time, no courts were parsing ACCA convictions that finely. That did not prevent the District Judge – John H. McBryde, who for our money is as poor a federal district judge as can be found in America – from peremptorily deciding 10 years after the fact that the ACCA’s residual clause “did not play any role” in Lawrence’s sentencing. Judge McBryde additionally complained that Lawrence should have asked at sentencing which clause – “elements” or “residual” – the court relied on to make the injury-to-a-child prior into a predicate ACCA offense.

Last week, the 5th Circuit reversed Judge McBryde. It held Lawrence was not to blame for not objecting that the district court did not specify “elements” or “residual,” because at the time, a defendant had “no legal right to such a determination.”

win171916It turned out Lawrence had two ways to win. First, the Circuit said Texas’ injury-to-a-child offense is clearly broader than the ACCA’s elements clause, which is to say that commission of that crime does not necessarily require use or threat of physical force. Because the offense is too broad to rely on the “elements” clause, the district court must have relied the residual clause, no matter what Judge McBryde may say now, and that clause has been declared unconstitutional. So under either element, the injury-to-a-child offense does not qualify him for an ACCA enhancement.

But was it Lawrence’s fault for not objecting to the paucity of the record back in 2006? The appeals court said no. “Theoretically,” the 5th said, “the district court mistakenly could have been thinking of the elements clause when sentencing Taylor. But this court will not hold a defendant responsible for what may or may not have crossed a judge’s mind during sentencing.”

release160523Without the ACCA conviction, Lawrence’s felon-in-possession offense carries a statutory maximum sentence of 10 years. He has already served nine months more than that. Although opposing Lawrence’s position that a defendant making a Johnson claim need not prove which element a sentencing court relied on when it imposed an ACCA sentence, the government nevertheless conceded that “if this Court determines that Taylor’s current motion presents a constitutional claim… we would agree to relief.” Thus, the 5th Circuit vacated Lawrence’s ACCA enhancement and ordered his immediate release.

United States v. Taylor, Case No. 16-11384 (5th Cir., Oct. 12, 2017)

– Thomas L. Root


No Right to Hearing on Rule 35(b) Motion, 5th Circuit Says – Update for October 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.


retro_vintage_kitsch_cop_police_are_your_friends_card-r61c98e4f7d4f40a6b764aedbdb6dfd4c_xvuat_8byvr_324When we were kids, we quickly learned from well-meaning parents that the policeman was our friend. That was quite true, at least up until we hit puberty or so. Then we learned, some of us later than others, that at some point the policeman has ceased being our friend, but rather was just another guy on the public dole who had been trained to believe that all “civilians” – that’s what they call us, like their Boy-Scouts-with-guns organization has anything to do with military service – are suspects and all cases have to be cleared by arrest. Arrest of the guilty party is preferred, but by no means mandatory.

In adulthood, we also came to realize that the prosecutor is as much our friend as is the cop, which is to say ‘not at all’? Cynical, you say? Ask the suddenly-disgraced Harvey Weinstein. Harv is clearly a guy who gives lechery a bad name, someone who used power and money to abuse women. Sure, his hormone-driven nihilism makes Bill Clinton and Donald Trump look like eunichs, and his depravity ought to earn him a one-way ticket to infamy. But that’s not enough. Word today is that the feds are investigating Harvey, a criminal-justice piling on that is as puzzling as it is troubling.

Free Harvey!
You’re not likely to be seeing many of these posters around… but if the Feds can target Harvey for merely being a scumbag, they can target anyone else suddenly not in favor, too.

To be sure, Harvey could be convicted of multiple federal crimes. We know that for a fact, because with well over 4,000 federal criminal statutes and untold additional regulations that have been criminalized as well, anyone – from Mother Teresa to Anthony Weiner – has probably committed multiple federal crimes, often just be getting up in the morning.

Our point to all of this is one that Aaron McMahan would appreciate. Aaron was convicted of drug trafficking in federal court, and then – like other federal inmates who come to the party late – he assisted the government in nailing a former associate. Six months after Aaron’s sentencing, his cooperation resulted in the other guy getting federal time. After that, the Government filed a post-sentence Rule 35(b) motion asking for a reduction in Aaron’s sentence as a reward for his assistance in nailing the other dude.

When defendants help the feds before sentencing, the Government rewards them by filing a motion at sentencing pursuant to 18 USC 3553(e) and Sec. 5K1.1 of the Sentencing Guidelines. This 5K1.1 motion is like a magic sentencing elixir, letting the sentencing judge ignore any advisory sentencing range, and even statutory mandatory minimums, and sentence the cooperating defendant to as little as probation.

Sometimes, however, the cooperation comes after sentencing, or – as in Aaron’s case – cooperation before sentencing has not yet brought the desired results. Then, the Government may file a motion pursuant to Rule 35(b) of the Federal Rules of Criminal Procedure. The Rule 35 motion is made of the same fairy dust as the 5K1.1 motion, letting the sentencing court pretty much do what it wants regardless of other statutes or guidelines.

wink171012When a defendant cooperates, no one from the U.S. Attorney’s Office promises him any reward whatsoever. Wink. Wink. This is because the defendant may be called on to testify, and the defense attorney will invariably ask him or her what has been promised. In the cross-examination pas de deux, the cooperating witness is expected to be able to respond, with rather precise honesty, that no one has promised him a thing. Of course not. Wink. Wink. Everyone knows what is really going on except for the jurors, who no doubt retire to the jury room impressed at the civic-mindedness of the felon on the stand who is willing to stand up for justice because it’s the right thing to do.

Of course, after the cooperating defendant delivers, the government does not have to reward him with a 5K1.1 or Rule 35 motion, and in all but very limited cases, there is not a thing a defendant can do about it. Likewise, the court may decide not to grant a 5K1.1/Rule 35 motion, or may decide to reward the defendant with a lousy orange in his stocking instead of that pony the government recommended. In that case, a defendant’s options are pretty limited.

Practically speaking, however, the system grinds out rewards for cooperating defendants, because if it did not, word would quickly get around the jails and prisons, and cooperation would dry up.

nothing170125Aaron no doubt figured that because he had delivered for the government, the U.S. Attorney was now his friend. Indeed, his “friend” delivered, filing the not-promised but reasonably-expected Rule 35 motion. Unfortunately, it seems the court was not his friend, because two days after the Rule 35 motion hit his desk, Aaron’s district judge denied the motion — before Aaron had received notice or had an opportunity to respond — explaining “even if the court were to accept as accurate all allegations of fact alleged in such motion, the court would not be persuaded that the sentence imposed on McMahan… should be reduced.”

Shocked, Aaron appealed, arguing that the district court should not have denied the Rule 35 motion without first providing him with notice and an opportunity to be heard.

Aaron was shocked again when his former friends at the U.S. Attorney’s Office argued against him in the Court of Appeals, contending that “adopting a notice and hearing requirement in Rule 35(b) motions would “create tension with the authority recognizing that a defendant possesses many more rights during the sentencing phase of criminal proceedings than during post-sentencing proceedings.”

noright171012Aaron’s dismay was complete last week, when the 5th Circuit agreed with the government. “A defendant does possess fewer rights during post-sentencing proceedings,” the Circuit held. “Indeed, Federal Rule of Criminal Procedure 43(b) provides, ‘a defendant need not be present…[where t]he proceeding involves the correction or reduction of sentence under Rule 35…” Further, a defendant does not have a right to counsel during Rule 35(b) sentence reduction proceedings… Thus, a notice and hearing requirement for Rule 35(b) motions would be in conflict with Rule 43 and this Court’s previous decisions that the attendant rights of presence and counsel do not exist at that post-sentencing stage.”

English statesman Henry Temple, 3rd Viscount Palmerston, once observed that “nations have no permanent friends or allies, they only have permanent interests.” Writ small, that is something every defendant – even someone as powerful as former Obama and Clinton buddy Harvey Weinstein – should remember about his relationship with the government.

United States v. McMahan, Case No. 16-10255 (5th Cir., October 5, 2017)

– Thomas L. Root


Draco Would Be Proud of the 2nd Circuit – Update for October 10, 2017

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


bite171010Not much shocks us anymore, an unfortunate by-product of the equally unfortunate aging process, but a 2nd Circuit decision the other day made us feel like kids again… amazed, disgusted, shocked kids.

Corey Jones, a 39-year old with an IQ of 69, was in his last 5 months of an 8-year felon-in-possession conviction. While a resident of a halfway house, Corey “allegedly grumbled and was insolent to a staff member,” as two concurring judges described it. The halfway house called the U.S. Marshals to haul Corey back to prison to complete his final few months. Corey “resisted arrest,” which – again according to the dissent – did not consist of kicking or punching, or even stepping towards the marshals in a threatening manner. But when the marshals “were trying to lower his head to the ground,” which is a euphemistic way to describe throwing Corey to the floor, “the hand of the marshal who was apprehending Jones slipped down Jones’ face, and Jones bit him, causing the finger to bleed.”

The injured marshal was a tough guy, or maybe just had more common sense that the United States Attorney. He figured it was no big deal. He suffered no loss because of the injury, and – despite the notoriously generous government policies giving paid time off and God knows what else to employees injured on the job, he did not request any compensation.

Even the Assistant United States Attorney admitted that the bite was “not the most serious wound you’ll ever see.” But such a niggling technicality did not inconvenience the U.S. Attorney’s Office, which asked for and got a single-count indictment against Corey for assaulting a federal officer.

Corey was convicted after a trial. His sentencing Guidelines calculation ended up at a whopping 17½ to 20 years. The judge mercifully sentenced him to 15 years.

That’s right. Nip a marshal’s finger, get 15 years in federal prison. Draco would have been proud.

draco171010You couldn’t make this stuff up.

Corey’s sentencing range was so high because 23 years ago, juvenile Corey was convicted of 1st degree robbery in New York, and 20 years ago, he shot a guy in the leg, which netted him an assault conviction. Those two convictions – both of which occurred half a life ago for slow-witted Corey, made him a “career offender” under the Guidelines. (Without the “career offender” label, Corey was looking at 3-4 years.)

On appeal, Corey argued that New York 1st degree robbery was not a “crime of violence” under the Guidelines and that his sentence was unreasonable. Last week, the 2nd Circuit affirmed that Corey will remain in prison until he’s at least 50 years old. All for a bitten finger.

Corey argued that under New York law, 1st degree robbery could be committed using minimal force, not enough to meet the “crime of violence” standard of “physical force.” In a previous opinion, the 2nd Circuit had agreed with Corey, and further concluded that after Johnson v. United States invalidated the “residual clause,” 1st degree robbery could not be counted as a predicate for a “career offender” sentence.

The residual clause in USSG 4B1.2(a)(2) provides that a crime of violence includes any offense that ” involves conduct that presents a serious potential risk of physical injury to another.” The same language used to appear in the Armed Career Criminal Act, but Johnson held it was so vague in its meaning that application of it violated due process.

But after Corey’s sentenced was vacated, the 2nd Circuit vacated the vacation, withdrawing the opinion until the Supreme Court settled whether Johnson’s holding applied equally to the Sentencing Guidelines. After the high court decided in Beckles v. United States that it did not, the 2nd Circuit took up Corey’s case again.

Robber160229“Robbery” is one of the crimes specifically listed in the “career offender” Guideline as categorically being a crime of violence. But, Corey argued that New York’s robbery statute was broader than the generic definition. He contended the generic definition of robbery requires the use or threat of force in the process of taking the property, while the New York statute would be violated by a robber who uses or threatens force after assuming dominion of the property.

The appellate court rejected the argument. It said the generic definition of robbery, however, is broader than that. Although the common law definition confines robbery to the use or threat of force before, or simultaneous to, the assertion of dominion over property, “a majority of states have departed from the common law definition of robbery, broadening it, either statutorily or by judicial fiat, to also prohibit the peaceful assertion of dominion followed by the use or threat of force.” This broader definition, the court said, “has supplanted the common law meaning as the generic definition of robbery.”

What’s more, the appellate court said, “We have little difficulty concluding that the ‘least of the acts’ of first-degree robbery satisfies the definition of the Guidelines’ residual clause. The least of the acts, both sides agree, is “forcibly stealing property” while “armed with a deadly weapon.” Plainly, a robber who forcibly steals property from a person or from his immediate vicinity, while armed with a deadly weapon, engages in “conduct that presents a serious potential risk of physical injury to another.”

draconian170725Because the sentence fell below the advisory Guideline range, the 2nd held that it was substantively reasonable. The concurring judges agreed that because the court was bound to consider Corey a “career offender” – even though the current version of the Guidelines has dropped the “residual clause” – the sentence was not substantively unreasonable. However, they termed the “result to be close to absurd.” If Corey’s appeal had been a little bit earlier, the reversal would not have been withdrawn. “This means that, as a result of timing quirks (his appeal to us was slightly too late, leading to our decision to pull our earlier opinion), Jones receives a very, very high sentence in contrast with almost every similarly situated defendant.”

United States v. Jones, Case No. 15-1518-cr (2nd Cir., October 5, 2017)

– Thomas L. Root


Not Your Father’s Sentencing Reform: 2017 Bill is Different – Update for October 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.


The text of S. 1917, the Sentencing Reform and Corrections Act of 2017, has been released. SRCA17 is not just a rehash of the 2015 bill of the same name, but instead has some different and noteworthy provisions:

hippie171005Serious drug felony: The federal catch-all drug crime statute – 21 USC 841 – raises the minimum sentence for people convicted of a prior “felony drug offense, “ which is a federal or state drug crime punishable by more than a year in prison. It does not matter if the defendant got probation for the prior offense, or if the prior offense happened 50 years ago.

The result of this draconian provision is pretty clear. If someone who got probation 50 years ago for two pot-dealing felonies (remember Woodstock?), and was caught now with 50 grams of methamphetamine (imagine one-ninth of a pound, the weight of 36 paperclips), under 21 USC 841, he or she would get a mandatory life sentence. Naturally, results like this lead many defendants to take quick pleas and cooperate with the government, because whether to demand the enhanced penalty is solely up to the prosecutor.

slap171005SRCA17 would replace “felony drug offense” in 21 USC 841 with “serious drug felony.” A “serious drug felony” is defined as a felony conviction for which the defendant served more than a year in prison, and which happened within the past 15 years. Low-level indiscretions, as measured by the actual instead of the potential sentence and by the age of the conviction, will limit the draconian sentence enhancements under Sec. 841.

Safety Valve: Currently, 18 USC 3553(f) contains what’s known as a “safety valve,” which relieves a drug defendant of an otherwise mandatory-minimum sentence if he or she meets certain criteria, including that there not be more than one prior criminal history point. Of course, a single drunk driving conviction can get you a point, and driving under a license suspension – which follows a DUI in most states like night follows day – will get you a second one.

SRCA17 raises the criminal history point threshold to 4 points, provided there’s no 3-point felony in the mix. At the same time, the “safety valve” would be modified to give a judge discretion to apply it even if the defendant’s points exceed four, if there’s reliable information indicates that the points “substantially over-represent the seriousness of the defendant’s criminal history or the likelihood that the defendant will commit other crimes.”

draconian170725Drug 10-year Mandatory Minimum: Section 841 specifies that some quantities of drug involved in an offense will require imposition of a 5-year mandatory minimum, and other higher quantities will raise the mandatory minimum to 10 years. For example, in a crack cocaine offense, 28 grams or more requires a minimum 5-year sentence; 280 grams or more will get you at least 10.

SRCA17 would give the judge the discretion in a 10-year case to drop the mandatory minimum to 5 years if the defendant has no drug or violent priors, did not use violence in the crime of conviction, was not a leader or organizer of the offense, and admitted the crime to the government.

Gun crime: Under 18 USC 924(c), a defendant who possesses, uses or carries a gun during a violent or drug trafficking crime must get a mandatory consecutive sentence of at least 5 years. The statute requires that if the defendant does it twice, the second (and all consecutive) offenses require a mandatory sentence of 25 years.

The government, being the government, long ago convinced the courts that the second offense does not require that the defendant have already been convicted of the first one (although that is what Congress meant to say). So if Donny Drugdealer sells me some weed on Monday while carrying a gun in his pocket, and then sells you some weed on Tuesday carrying the same gun, he has committed two drug trafficking offenses (worth, say, 30 months) and two separate 924(c) convictions. His sentence would be 30 months for the drugs plus 60 months for Monday’s gun plus 300 months for Tuesday’s gun. That’s 32 years plus in prison.

Just like SRCA15 would have done, SRCA17 changes 924(c) to require that a defendant be convicted of the first 924(c) offense before the 25 years for a subsequent offense be assessed.

Fair Sentencing Act: Before 2010, Congress believed crack cocaine was so dangerous that it considered one gram of crack to be equal to 100 grams of powder cocaine. In the Fair Sentencing Act of 2010, Congress modified its stance, reducing the disparity to 18:1 from 100:1. The effect was to dramatically cut the mandatory minimum sentences being heaped on (mostly black) crack defendants for drug quantities that paled next to the piles of powder that were earning mostly white defendants much shorter sojourns with the Bureau of Prisons.

But to satisfy reluctant supporters like Sen. Jefferson Beauregard Sessions III – now Attorney General to a President who has denounced him as a moron – the FSA was not made retroactive for people already convicted and sentenced. SRCA17 tries to rectify this.

Retroactivity: SRCA15 originally proposed retroactivity for stacked 924(c) offenses, changed drug mandatory minimums and the FSA people. As the bill progressed through committee and the elections loomed, retroactivity cotton171005was stripped from the bill a piece at a time to mollify law-and-order people like Sen. Tom Cotton (R-Arkansas) and then presidential-hopeful Ted Cruz. Even that was not enough to save the measure.

SRCA17 proposes a middle-of-the-road retroactivity provision that loosely tracks the reduction-of-sentence procedure under 18 USC 3582(c)(2). Retroactivity would apply to people with sentences enhanced by prior offenses, 924(c) stacked sentences and the FSA, but it would not be automatic.

Instead, the defendant would have to apply for it to the sentencing court, which then would have discretion to grant it. Some people would be outright excluded – for example, defendants who had brandished or fired the gun would be entitled to no 924(c) relief, and defendants convicted of a crime of violence would be denied any retroactive relief for a sentence enhanced by a prior crime. FSA people will not be disqualified because of priors, but in all cases, the trial judge is left with discretion whether to grant a reduction or not.

wave171005SRCA17 contains a few enhanced penalties for violent crimes and spouse-beating. Those proposals and the retroactivity provision seem to be an attempt to throw some red meat to the law-and-order lobby. Putting the district judge in the position to decide retroactivity on an individualized basis splits the baby down the middle, granting prisoners a chance to equalize their sentences with those being handed out to new defendants after the bill passes while not releasing prisoners wholesale (and giving the Jefferson Beauregard Sessionses of the world something to gripe about).

Tomorrow: Provisions in SRCA17 for good time credit and reentry assistance. No sex offenders need apply.

S.1917, Sentencing Reform and Corrections Act of 2017 (introduced Oct. 3, 2017)

Text of bill

– Thomas L. Root


What’s New Is Old in Criminal Justice Reform – Update for October 4, 2017

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


Two bills looking to reshape the nation’s criminal justice system were introduced this week, and all of sudden, criminal justice advocates are partying like it’s 2015.

party171004Leading the pack, a pack of influential senators led by Chuck Grassley (R-Iowa) and Dick Durbin (D-Illinois) announced the introduction of S. 1917, the Sentence Reform and Corrections Act of 2017.  SRCA17 – a retread of the Sentence Reform and Corrections Act of 2015 – is aimed at easing sentences for some federal offenders, such as for drug crimes, while beefing up other tough-on-crime laws. The measure would get rid of the federal three-strike law mandatory life sentence for some repeat drug offenders, three-strike but would also allow some people with previous convictions for serious violent and serious drug felonies to face enhanced penalties.

“This bill strikes the right balance of improving public safety and ensuring fairness in the criminal justice system,” said Grassley, who is chair of the Senate Judiciary Committee. “It is the product of much thoughtful deliberation, and we will continue to welcome input from stakeholders as we move forward.”

obtaining-clemencySRCA17 reportedly reduces the enhanced penalties that apply to repeat drug offenders and eliminates the three-strike mandatory life provisions for some offenders; expands the existing safety valve to offenders with more extensive criminal histories, and creates a second safety valve that gives judges discretion to sentence certain low-level offenders below the 10-year mandatory minimum; expands the reach of the enhanced mandatory minimum for violent firearm offenders to those with prior federal or state firearm offenses but reduces that mandatory minimum to provide courts with greater flexibility in sentencing; requires the Dept of Justice to conduct risk assessments to classify all federal inmates and to use the results to assign inmates to appropriate recidivism reduction programs, including work and education programs, drug rehabilitation, job training, and faith-based programs, permitting prisoners who successfully complete these programs to get early release and to spend up to 25% of their remaining sentence in home confinement or a halfway house; and provides for a report and inventory of all federal criminal offenses.

Sen. Grassley has not revealed his scheduling plan for marking up SRCA17. Its 2015 predecessor passed the Judiciary Committee 15-5 during the last Congress, but never reached a floor vote due to Senate Majority Leader Mitch McConnell (R-Kentucky), who did not want the measure voted on during the contentious 2016 presidential campaign.

A bipartisan coalition of legislators supports SRCA17, including Senator Mike Lee (R-Utah), Lindsey Graham and Tim Scott (both R-South Carolina), Jeff Flake (R-Arizona), Roy Blunt (R-Missouri), Dianne Feinstein (D-California), Sheldon Whitehouse (D-Rhode Island), Patrick Leahy (D-Vermont) and Cory Booker (D-New Jersey).

The Attorney General, whom President Trump says is “an idiot,” will likely oppose SRCA17.

SRCA17 will enjoy support from White House senior advisor Jared Kushner, who is interested in reforming the federal criminal justice system and previously has met with senators about the issue. The bill will undoubtedly be opposed by Attorney General Jefferson Beauregard Sessions III, a man recently described by President Trump as an idiot, who helped kill SRCA15 when he was a senator.

Meanwhile, five Republican senators Ted Cruz (Texas), Orrin Hatch and Mike Lee (both of Utah), Rand Paul (Kentucky), David Perdue (Georgia) introduced S. 1902, the Mens Rea Reform Act, on Monday. The MRRA would prevent the government from convicting someone of a federal crime without proving they committed the crime “knowingly and willfully.”

This is the second time Republicans in Congress have introduced “mens rea” reform, presenting a similar bill in 2015 that never made it out of committee.

Daily Caller, October 3, 2017: Senate Republicans team with Democrats in another push for soft sentencing

Politico, October 4, 2017: Senators unveil bipartisan criminal justice reform package

The Daily Signal, October 3, 2017: Criminal justice reform is alive and well in Congress

– Thomas L. Root


Fall Housecleaning – Update for October 3, 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’re cleaning up today, posting some case notes we included in the newsletter that went out yesterday.


Eddie Byas was convicted of being a felon in possession of a firearm in violation of 18 USC 922(g). At sentencing, the district court applied the ACCA’s 15-year mandatory minimum sentence on the basis of three prior convictions, one of which was an Illinois residential burglary.

gunb160201Last week, the 8th Circuit reversed the ACCA sentence, holding that Illinois’s burglar statute was too broad to be used for ACCA purposes. The statute defines a burglary as knowingly entering with authority a building, housetrailer, watercraft, aircraft, motor vehicle, railroad car, or any part thereof” to commit a felony or theft. The defendant and government argued about and Court ruled that it did not have to decide whether the places listed were elements or means. The Circuit said that did not matter, because even if it could use the modified categorical approach, elsewhere in the Illinois Code, “building” has been applied by Illinois courts to a detached semitrailer, a tent, a chicken coop, and a telephone booth.

“Even if Illinois’s burglary statute were divisible,” the 8th said, “its only enumerated location that could fit within generic burglary — a building — is defined to include a broader class of locations” than contemplated by federal law. “‘Building’ is not itself divisible into separate crimes for entry into different types of buildings,” the opinion holds. “Accordingly, a burglary conviction under section 5/19-1(a) may not operate as an ACCA predicate offense.”

United States v. Byas, Case No. 16-3616 (8th Cir., Sept. 28, 2017)



Jim Remington filed a 28 USC 2255 motion challenging his consecutive sentences for two robbery convictions under Johnson v. United States. In his plea agreement, however, signed almost 20 years ago, Jim waived his right to file both a direct appeal and a 2255 motion.

Without asking the government to answer Jim’s 2255, the district court denied it on the merits, but granted him a certificate of appealability. On appeal, the government argued that the waiver precluded the 2255 altogether.

Waivers160215Last week, the 1st Circuit agreed, ruling ruled that “the waiver in the plea agreement, coupled with Remington’s failure to argue in his briefs that it is self-evidently inapplicable, bars Remington from filing the motion.” This is so, the Court ruled, despite the fact that the waiver was not raised as a defense by the government before the district court.

Jim’s mistake, the Circuit said, was that he never even mentioned the waiver until the government brought it up. “A defendant who waives his right to appeal and thereafter attempts to avoid the effect of the waiver must confront the waiver head-on,” the 1st said. “Where the defendant simply ignores the waiver and seeks to argue the appeal as if no waiver ever had been executed, he forfeits any right to contend either that the waiver should not be enforced or that it does not apply.”

Remington v. United States, Case No. 16-2462 (1st Cir., Sept. 27, 2017)



Everyone knows that 28 USC 2255(f) contains some pretty strict 1-year deadlines for filing. But in 2013, the Supreme Court held in McQuiggin v. Perkins that a prisoner making a credible showing of actual innocence can overcome the 1-year statute of limitations in 28 USC 2255. In doing so, the Supreme Court recognized that an untimely petition should not prevent a petitioner who can adequately demonstrate his actual innocence from pursuing his claims.

Despite repeatedly claiming innocence, Paul Satterfield was convicted of state 1st degree murder in 1985. After many years of direct and collateral litigation, won in federal district court on ineffective assistance of counsel. But the 3rd Circuit reversed, holding petition was barred by 1-year statute of limitations.

After the Supreme Court McQuiggin decision, Paul tried again. He moved to set aside the judgment that his habeas corpus was untimely with a Fed.R.Civ.P. 60(b)(6) motion, arguing McQuiggin’s change in relevant decisional law was an extraordinary circumstance justifying relief. The district court denied the motion, holding that McQuiggin was not an extraordinary circumstance.

Some of the people who say this really are...
Some of the people who say this really are…

Last week, the 3rd Circuit vacated the district court’s order. Noting that it had previously held that changes in decisional law may in some cases justify Rule 60(b)(6) relief, the Circuit said “McQuiggin implicates the foundational principle of avoiding the conviction of an innocent man and attempts to prevent such a mistake through the fundamental miscarriage of justice exception.” If Paul can show he would have made a credible showing of actual innocence to avail himself of the fundamental miscarriage of justice exception had McQuiggin been decided when his petition was dismissed, the appellate court said, “equitable analysis would weigh heavily in favor of deeming McQuiggin’s change in law… an exceptional circumstance justifying Rule 60(b)(6) relief.” While the district court must weigh “all of the equitable factors as guided by precedent, we clarify that the nature of the change in law cannot be divorced from that analysis.”

Satterfield v. District Attorney, Philadelphia, Case No. 15-2190 (3rd Cir., Sept. 26, 2017)

– Thomas L. Root

Welcome Back, Supreme Court… Seems Like Last Year – Update for October 2, 2017

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


In our October 3, 2016, newsletter – an entire year ago minus a dat – we wrote about Lynch v. Dimaya, a case on which the Supreme Court had just granted review. Dimaya was nominally about immigration law, but was expected to address whether Johnson v. United States’ constitutional ban on the “residual clause” might apply to other statutes and guidelines using the same language to define a crime of violence, especially 18 USC 16(b).

berra171002Now, a year later, it’s déjà vu all over again. The Supreme Court will open its October Term 2017 (which lasts until the end of next June) with oral argument on the case, now named Sessions v. Dimaya (because Loretta Lynch is gone as Attorney General, replaced by Jefferson Beauregard Sessions III, the only Attorney General in modern history who has been acknowledged to be an idiot by his boss, the President).

The issue in Dimaya is whether, and if so how, the Constitution applies to judicial review of the Immigration and Nationality Act. A noncitizen who is convicted of an “aggravated felony” is subject to mandatory removal. The INA defines “aggravated felonies” to include 18 USC 16(b) crimes of violence, which includes (you guessed it) a “residual clause.”

In 2015, while Dimaya’s appeal was pending, the court held in Johnson v. United States that the Armed Career Criminal Act’s residual clause was so vague as to violate due process. Relying on Johnson, the 9th Circuit found that Sec. 16(b) was unconstitutionally vague and vacated Dimaya’s removal order.

The government contends the Circuit erred in applying the due process clause’s prohibition of vagueness in criminal statutes to a civil immigration law. Dimaya counters that Johnson compels a finding that Sec.16(b) is unconstitutionally vague.

vaguenes160516Divisions among the justices emerged in the initial argument of the case. However, no justice seemed interested in holding that removal provisions are subject to due process vagueness standards, and they appeared divided on whether Dimaya is distinguishable from Johnson and thus whether the statute is void for vagueness. Short-handed after Justice Antonin Scalia’s death, the court ordered reargument.

In other Supreme Court news, the Court agreed in last week’s “long conference” to hear five new criminal cases. It has not yet released what is expected to be a very long list of denied petitions for cert resulting from the meeting. The new cases are:

City of Hays, Kansas v. Vogt, where the justices will consider whether the 5th Amendment is violated when a defendant’s non-Mirandized statements are used at a probable cause hearing but not at a criminal trial;

Collins v. Virginia, where the justices will clarify whether the “automobile exception” to the warrant requirement applies to a car parked on private property close to a home;

Byrd v. United States, where the justices will consider expectations of privacy in a rental car for someone who is not an authorized driver;

Rosales-Mireles v. United States, where the justices will consider whether the 5th Amendment has set an impermissibly high standard for the court of appeals to correct a plain error; and

McCoy v. Louisiana, where the justices will decide whether it is unconstitutional for defense counsel to concede a defendant’s guilt over the defendant’s objection.

Sessions v. Dimaya, Case No. 15-1498 (Supreme Court, to be reargued Oct. 2, 2017)

– Thomas L. Root