2nd Circuit Holds “Career Offender” 2255 in Abeyance – Update for July 16, 2016

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HOW ARE THE LOWER COURTS TREATING THE BECKLES CERT?

By now, everyone is aware that before it left for summer vacation, the Supreme Court granted certiorari to Beckles v. United States. This means by the end of the year or early in 2017, the justices will decide whether Johnson v. United States applies to “career offender” sentences under the Sentencing Guidelines (a decision which probably will also dictate whether Johnson applies to the many other references in statute and the Guidelines to “crimes of violence.”

justices160718A reader recently asked us what courts were doing with pending 2255 motions that argued Johnson should apply to “career offenders” and people with 924(c) gun convictions based on crimes of violence. Last Thursday, the Court of Appeals for the 2nd Circuit gave us a hint.

Michael Blow pleaded guilty to one count of conspiring to distribute 5 grams or more of cocaine base. The district court sentenced him to as a career offender under the Sentencing Guidelines. He recently filed an application with the 2nd Circuit for leave to file a second-and-successive 2255 motion under Johnson, to argue that one of his predicate offenses was no longer a violent crime.

The 2nd Circuit noted the Supreme Court’s recent grant of certiorari in Beckles, and that the 4th Circuit had previously decided that a “career offender” Johnson challenge would support a second-and-successive 2255, in In re Hubbard. The 2nd said that “in sum, there is substantial disagreement among other circuits on the question on which the Supreme Court has granted certiorari in Beckles.” For that reason, the court granted Michael Blow the right to file a second and successive 2255, and said that “because the Supreme Court will likely decide in Beckles whether Johnson applies retroactively to the Guidelines, the district court is instructed to hold Blow’s § 2255 motion in abeyance pending the outcome of Beckles.”

Blow v. United States, Case No. 16‐1530 (2nd Cir. July 14, 2016)

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11th Circuit Limits Tries at Second-and-Successive – Update for July 15, 2016

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BEATING YOUR HEAD AGAINST THE WALL

Gary Baptiste is a guy who never gives up. When he wasn’t able to convince the 11th Circuit that he should be allowed to file a Johnson claim in a second-and-successive 2255 motion, he turned right around and tried again..

beathead160715Gary’s problem is that he has an 18 U.S.C. Sec. 924(c) sentence for carrying a firearm during a drug trafficking offense or crime of violence. The Court previously found that the underlying crime – trying to rip off a drug stash house – was a drug trafficking offense. Gary argued it was a really a crime of violence, and that it didn’t count after Johnson v. United States.

The 11th Circuit didn’t buy the argument when he first presented it a month ago, and it didn’t buy it this time, either. But in so doing, the Court made some troubling precedent.

A number of prisoners applied for leave to file second-and-successive 2255 motions addressing Johnson’s application to the Guidelines “career offender” residual clause or the “crime of violence” defined in 18 U.S.C. Sec. 16, or even 924(c). They filed prior to June 26th to meet the 2255(f) procedural deadline, only to have circuits like the 11th hold that Johnson didn’t reach beyond the Armed Career Criminal Act. Now, with Beckles v. United States pending before the Supreme Court, it is reasonably likely that Johnson will be extended to all definitions of “crime of violence,” wherever found in the criminal code or sentencing guidelines.

In Gary’s case, the 11th Circuit observed that 28 U.S.C. Sec. 2244(b)(1) directs that a “claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed.” The 11th said that while it was written to apply to state prisoners, the “command of § 2244(b)(1) applies with equal force where a prisoner seeks leave to file a second or successive habeas motion based on a claim we rejected in a previous application seeking such leave.”

The appellate panel held that “Sec. 2244(b)(1)‘s mandate applies to applications for leave to file a second or successive § 2255 motion presenting the same claims we have already rejected on their merits in a previous application… In short, where we have already denied an application for leave to file a second or successive motion under § 2255 on the merits, we are required by statute and our caselaw to reject a subsequent application raising the same claim.”

In re Gary Baptiste, Case No. 16-13959 (11th Cir. July 13, 2016)

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But-for Causation Reverses § 2255 – Update for July 14, 2016

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IT’LL BE THE DEATH OF ME

In 2011, Logan Gaylord pleaded guilty to a conspiracy to distribute oxycodone. During the drug distribution, Evins – one of Logan’s customers – died of an overdose of oxycodone and cocaine. This was obviously unfortunate for the deceased: it was unfortunately for Logan as well, because 21 U.S.C. § 841(b)(1)(C) provides for a mandatory minimum sentence of 240 months when death results from the unlawfully-distributed drugs. His plea agreement specified that the “death results” enhancement applied because of the customer’s demise.

death160714In 2014, the Supreme Court ruled in Burrage v. United States that the “death results” enhancement in § 841(b)(1)(C) required that the government show that “but for” the drugs provided by the defendant, death would not have resulted. Six months after Burrage, Logan filed a § 2255 motion, arguing that his attorney was ineffective for failing to object to the sentencing enhancement incorporated in the plea agreement. The district court dismissed the § 2255 motion, holding that the Burrage claim was a non-constitutional claim that could have been raised on direct appeal, and thus had been waived. As well, the district court said that Logan had waived his right to bring a collateral attack in his plea agreement.

On Tuesday, the 7th Circuit reversed the decision and sent the case back for an evidentiary hearing. The Court held that Logan had not waived the § 2255 in the plea agreement, because he was in effect claiming that his lawyer was ineffective in advising him to take the plea deal. Although Logan “did not cite Strickland v. Washington or an analogous case, Gaylord did argue that his guilty plea was ‘uninformed, therefore involuntary’ because his counsel insufficiently investigated his case… Thus, Gaylord was mistakenly led to believe that the oxycodone he distributed was the but-for cause of Evins’s death. This is enough to raise a claim of ineffective assistance of counsel, especially given the lenient standard under which we review pro se filings. And since Gaylord argues that his plea agreement was the product of his counsel’s ineffective assistance, he can overcome the waiver provision in the plea agreement.”

The appeals panel concluded that Logan had “alleged facts sufficient to support his claim of deficient performance. There… was no evidence that the oxycodone he distributed was the but-for cause of death. Rather, the postmortem and forensic pathology reports stated that the cause of death was ‘oxycodone and cocaine intoxication.’ In other words, even without the oxycodone, the cocaine concentration may have been enough to result in Evins’s death. It is unclear from the record whether Gaylord’s counsel was aware of the but-for cause standard… examined the postmortem and forensic pathology reports, and provided Gaylord with the information necessary for a knowing and voluntary guilty plea. Thus, Gaylord may have a viable claim of deficient performance.”

The Court held that without the “death results” sentencing enhancement, Logan Gaylord’s sentencing range would have been 210 to 262 months imprisonment. With the enhancement, he faced 240 months to life. What’s more, Logan “alleged in his § 2255 motion that he made his decision to plead guilty based on incomplete information. He claimed that his counsel did not show him the postmortem and forensic pathology reports or explain the issue of causation, and thus his plea was involuntary and uninformed. Construing this pro se filing liberally, this is enough to establish a reasonable probability that but for counsel’s ineffective assistance, Gaylord would not have pled guilty.”

Gaylord v. United States, Case No. 15-1297 (7th Cir.  July 12, 2016)

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Stingray gets Stung – Update for July 13, 2016

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STINGRAY SEARCH REQUIRES WARRANT

The DEA was stalking Washington Heights, New York, looking to bust an international drug ring. Agents got a warrant to pull cell site records on Ray Lambis’s smartphone, but the information they got only narrowed their search to a street corner that was home to several apartment buildings.

stingray160713The agents decided to try for something more accurate, so they brought in a Stingray, a device that spoofed cellphones into thinking it was a cellphone tower and transmitted. So fooled, the phones transmitted identifying information to the Stingray every 7 seconds, letting the DEA home in on the exact location of the phone. The agents were moving fast, so they did not bother with a search warrant. Sure enough, the Stingray led agents to Ray’s dad’s apartment, and he let them search the place.

Yesterday, a Southern District of New York judge threw out the evidence they obtained from the search, holding that a Stingray search requires a search warrant. The DEA argued that Ray Lambis had not expectation of privacy in the pings his phone emanated. But relying on the 2001 Supreme Court decision in Kyllo v. United States, the District Court said “the DEA’s use of the cell-site simulator to locate Lambis’s apartment was an unreasonable search because the “pings” from Lambis’s cell phone to the nearest cell site were not readily available “to anyone who wanted to look” without the use of a cell-site simulator. The DEA’s use of the cell-site simulator revealed ‘details of the home that would previously have been unknowable without physical intrusion,’ namely, that the target cell phone was located within Lambis’s apartment. Moreover, the cell-site simulator is not a device ‘in general public use.’ In fact, the DEA agent who testified at the hearing had never used one.”

The Court concluded that “The use of a cell-site simulator constitutes a Fourth Amendment search within the contemplation of Kyllo. Absent a search warrant, the Government may not turn a citizen’s cell phone into a tracking device.”

Opinion and Order, United States v. Lambis, Case No. 15cr734 (S.D.N.Y. July 12, 2016)

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The Case is Black and White – Update for July 12, 2016

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THE CASE IS BLACK AND WHITE

It’s not racial bias – it’s empirical. Federal defendants hoping to win on appeal (because, after all, hardly anyone wins in the district court – will do better if the trial judge is black.

blindjustice160718According to a Harvard Kennedy School of Government study, black federal judges are “significantly more likely” to be overruled than white judges. Researcher Maya Sen studied 1,000 judges appointed by presidents ranging from Lyndon Johnson to Barack Obama, and found that over the period 2000 through 2012, about 2,800 more black judge-written decisions were reversed on appeal than would have been the case if black and white judges were overruled at the same rate.

NPR reported on the study this morning, with the reporter and host speculating at length that the difference was probably due to the trial judges’ ideology being more liberal than the mainstream.

NPR Morning Edition, Research: Black Judges Are Reversed On Appeal More Than White Judges (July 12, 2016)

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Live the Life – Update for July 11, 2016

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LIVE THE LIFE
This is perhaps the gun that got Pacho in trouble ...
This is perhaps the gun that got Pacho in trouble …

Neftalí Alvarez-Núñez, better known in the music world as “Pacho,” portrayed the gangsta life as it’s lived in San Juan and Miami. As Pacho y Cirilo, he and his partner were a YouTube with hits like “Mi Gatita Es Calle” and “La Emenencia Un Beso.” (It’s pretty good stuff, available on iTunes and through Amazon, too).

But life started imitating art, and Neftalí was caught discarding a gun as he left a San Juan nightclub. And not just any gun. This one was apparently the same piece that starred in “Mi Gatita Es Calle,” a Glock with an extended magazine that had been tweaked to fire in full-auto mode.

Neftalí had no criminal history, but he was addicted to Percocet, and so the obliging United States Attorney charged him as a drug-abuser-in-possession of a firearm (a subparagraph under 18 U.S.C. § 922, much less known that its big brother, felon-in-possession) and possession of a machingun. Neftalí’s Guideline sentencing range was only 24-30 months.

The Presentence Report, however, veered into music criticism, and the Probation Officer was no music lover. The PSR proposed an above-Guideline sentence because Pacho y Cirilo’s songs “promote violence, drugs and the use of weapons and violence, as . . . can be seen through their videos which are readily available on the internet.” The Report included translations of two songs performed by Pacho y Cirilo. “Dicen Que Vienen Por Mi” and “Como Grita El Palo.”

The Judge was not much for that genre, either. Deciding that the lyrics reflected Neftalí’s disdain for the law, love of guns and glorification of the drug culture, the District Court gave Neftalí 96 months, more than three times the top end of his Guidelines.

Last Friday, the 1st Circuit reversed the sentence. While it is true, the Court said, “that the Constitution does not erect a per se barrier to the admission of evidence concerning one’s beliefs and associations at sentencing simply because those beliefs and associations are protected by the First Amendment,” at the same time, “a defendant’s abstract beliefs, however obnoxious to most people, may not be taken into consideration by a sentencing judge.” Conduct protected by the First Amendment may be considered in imposing sentence only to the extent that it is relevant to the issues in a sentencing proceeding.

Pancho y Cirilo in happier days.
Pancho y Cirilo in happier days.

The Government argued that Pacho’s rather graphic lyrics reflected his beliefs, and thus was relevant to the sentencing issues. The District Court agreed, arguing that Neftalí’ “is an individual who makes a life . . . not only carrying this kind of firearm, but also preaching . . . the benefits of having this kind of firearm, the use you can give to them, expressing how you kill people, expressing how you don’t care about human life.”

The 1st Circuit rejected the District Court’s analysis. The appeals panel said that “implicit in this rationale is the assumption that the lyrics and music videos accurately reflect the defendant’s motive, state of mind, personal characteristics, and the like. But this assumption ignores the fact that much artistic expression, by its very nature, has an ambiguous relationship to the performer’s personal views. That an actress plays Lady Macbeth, or a folk singer croons “Down in the Willow Garden,” or an artist paints “Judith Beheading Holofernes,” does not, without more, provide any objective evidence of the performer’s motive for committing a crime, of his personal characteristics (beyond his ability to act, sing, or paint, as the case may be), or of any other sentencing factor.”

The Court of Appeals said, “In the absence of such extrinsic evidence, the mere fact that a defendant’s crime happens to resemble some feature of his prior artistic expression cannot, by itself, establish the relevance of that expression to sentencing.”

The case was sent back for resentencing.

United States v. Alvarez-Núñez, Case No. 15-2127                                        (1st Cir. July 8, 2016)

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Johnson’s Reach Continues to Expand – LISA Newsletter for Week of July 11, 2016


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This week:

Appellate Courts Continue To Argue For Expansion Of Johnson
BOP Not Running Pell Mell to Pell Pilot Project
How Long Is Long Enough?
Critics Urge Grand Obama Clemency Gesture
What Did He Know And When Did He Know It?
Rough Week For The Country… And For Sentence Reform

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APPELLATE COURTS CONTINUE TO ARGUE FOR EXPANSION OF JOHNSON

The 2255 filing deadline may have passed for Johnson v. United States claims, but the case continues to make waves.

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Expanding Johnson

Last Thursday, the 6th Circuit joined the 7th and 9th Circuits in holding that the definition of “crime of violence” in 18 U.S.C. § 16 – even as applied in a purely civil deportation proceeding under the Immigration and Nationality Act – is unconstitutionally vague. Although Johnson related only to 18 U.S.C. § 924(e)(2)(B)(ii), the panel said, “the wide-ranging inquiry required by these two statutory phrases are one and the same, and we therefore hold that the immigration code’s residual clause is likewise unconstitutionally vague.”

Meanwhile, an 11th Circuit panel denied Leonard Sapp the right to file a second-and-successive 2255 motion challenging application of the career offender Guidelines to his sentence in light of Johnson. That decision was fully hardly a surprise. “In In re Griffin, the panel said, “we held that our reasoning in Matchett applied with equal force to the residual clause of the career-offender guideline in the context of the mandatory Guidelines. The Supreme Court has recently granted certiorari in Beckles v. United States, 616 F. App’x 415 (11th Cir. 2015), which raises the question of whether Johnson applies to the Guidelines. While we respectfully disagree with the holding of Griffin, we are nonetheless bound by that decision.”

career160509What makes the Sapp decision so unusual is that all three judges on the panel joined in a single concurrence to their own majority opinion, explaining that “although we are bound by Griffin, we write separately to explain why we believe Griffin is deeply flawed and wrongly decided.” The judges proceed to dismember the Griffin decision that Johnson could not apply to a “career offender” sentence – even one under the mandatory, pre-Booker Guidelines – concluding that while the 5th and 8th Circuits have recently denied second-and-successive applications where the claim was that Johnson affected “the residual clause of the advisory career offender guideline, as far as we can tell no other circuit has held that the residual clause of the mandatory career offender guideline is categorically immune from a Johnson challenge.”

These holdings strengthen the case for application of Johnson to the Guidelines “career offender” provision, now before the Supreme Court in Beckles v. United States.

Shuti v. Lynch, Case No. 15-3835 (6th Cir. July 7, 2016)

In re Sapp, Case No. 16-13338-J (11th Cir. July 7, 2016)

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BOP NOT RUNNING PELL MELL TO PELL PILOT PROJECT

We reported last week on an Obama administration decision to run a pilot program – the Second Chance Pell – at selected prisons, offering Pell grants to inmates despite a 1994 law prohibiting paying for prisoners to take college courses. It turns out that BOP is a virtual no-show on the Second Chance Pell list.

pellmell160711The U.S. Dept. of Education chose 67 colleges and universities across the country to participate in Second Chance Pell. While state institutions ran pell mell to participate in the Pell program, a list of participating prisons issued by DOE last week included only five out of 122 federal facilities: FCI Gilmer (West Virginia); FCI Milan (Michigan); FCC Beaumont (Texas); FMC Devens (Massachusetts); FCI Raybrook (New York); and FCI Bennettsville (South Carolina).

Tacoma News-Tribune, Prison Pell grants offer second chance for inmates reclaiming their lives (July 4, 2016)

DOE List of Second Chance Pell Participants (July 7, 2016)
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HOW LONG IS LONG ENOUGH?

Lavelle Phillips was caught with a gun and charged as a felon in possession. That’s pretty straightforward. His argument to the 9th Circuit – that the 2nd Amendment did not permit him to be charged – was anything but straightforward. The Court affirmed his conviction, but raised some fascinating questions.

Phillips’ prior conviction was for misprision of felony, the crime of having knowledge that a felony has been committed but concealing it by not reporting it as soon as possible. Phillips argued that misprision was a “passive crime of inaction” that could not constitutionally keep him from possessing a gun.

gun160711The Court ruled that the test was whether Congress would have had such a felony in mind when it banned gun possession by convicted felons. The current misprision statute “is functionally identical to its predecessor, enacted by the First Congress as a part of the Crimes Act of 1790 (prior to the ratification of the Second Amendment),” the Court said. “Because actions of the First Congress provide ‘contemporaneous and weighty evidence’ of the Constitution’s meaning, we are hard pressed to conclude that a crime that has always been a federal felony cannot serve as the basis of a felon firearm ban, simply because its actus reus may appear innocuous.”

The 9th Circuit noted in passing that “there are good reasons to be skeptical of the constitutional correctness of categorical, lifetime bans on firearm possession by all felons,” and the opinion suggests that the common law origin of such bans never intended them to be lifetime and permanent. The Court left that issue for another day.

United States v. Phillips, Case No. 14-10448 (9th Cir. July 6, 2016)
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CRITICS URGE GRAND OBAMA CLEMENCY GESTURE

It’s no secret that Obama’s goal of commuting 10,000 federal sentences is on life support. So far, the President has approved 348 commutations, almost all since the clemency initiative was launched in 2014. But nearly 12,000 prisoner petitions remain undecided, despite the fact DOJ estimates that as many as 2,000 of them seem to satisfy Obama’s rather strict criteria.

A sweeping gesture is needed on clemency, some argue...
A sweeping gesture is needed on clemency, some argue…

The lack of staffing, overly restrictive standards and insufficient funding have hampered the clemency effort. Now that Obama is down to six months left in office, criminal justice experts wrote two weeks ago urging him to speed up the process in order to give everyone who qualifies a meaningful chance to be considered.

The New Yorker magazine last week suggested the most obvious solution to both the procedural problems and the limiting clemency criteria would be to consider cases not individually but categorically. Marc Mauer of the Sentencing Project, a retired federal judge Nancy Gertner, and law professor Jonathan Simon recommended that Obama follow that path, like Gerald Ford and Jimmy Carter did in granting amnesty to broad categories of draft resisters after the Vietnam War, of granting clemency to broad groups of inmates.

One such category, the magazine suggested, might be crack-cocaine sentences handed down before the Fair Sentencing Act of 2010. “Through a categorical commutation, Obama could adjust the sentences of all those convicted under the one-hundred-to-one regime to the penalties Congress now deems appropriate. Such a measure would provide immediate relief to some five thousand prisoners.”

In an opinion piece in The New York Times last week, a law professor suggested that Obama ought to use his pardon power to permit illegal immigrants to stay in the country, too.

The New Yorker, Why Hasn’t Obama’s Clemency Initiative                  Helped More Nonviolent Drug Offenders? (July 4, 2016)

The New York Times, Can Obama Pardon Millions of Immigrants?   (July 6, 2016)

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WHAT DID HE KNOW AND WHEN DID HE KNOW IT?

bad160711Alfonso Torres-Chavez’s lawyer was ready to go to the mat for his client at trial, fighting the drug conspiracy charges with the time-honored “you’ve got the wrong guy” defense. The government, however, had lined up snitches, voice analysis experts and documentary evidence to show that they did have the right guy. Alfonso got mauled at trial.

Before trial, the government offered Alfonso a 10-year plea deal. Alfonso says his lawyer told him not to take it, because the government didn’t have enough to convict. Oops.

Alfonso filed a § 2255 motion, arguing his lawyer was ineffective for the bum advice on the plea. The district court threw the motion out without a hearing, finding that counsel’s advice to go to trial was not objectively unreasonable.

stupid160711Last week, the 7th Circuit reversed, and sent the case back for a hearing. The Court said that “if we assume… that Torres-Chavez’s counsel knew about all the evidence that was presented at trial when the plea offer was made, then his counsel’s performance was deficient. But our analysis does not stop here, since the relevant inquiry is what Torres-Chavez’s counsel knew when the plea offer was rejected, not what he knew at the conclusion of the trial… Here, the record does not show whether at the time of the plea offer, Torres-Chavez’s counsel knew about the informant’s testimony, the linguist’s testimony, the phone-call recordings, or the flight records.”

If the district court were to find that when he advised Alfonso not to take the plea, “counsel knew about all the evidence,” the Court said, “then his performance was unreasonable. But if an evidentiary hearing reveals that he did not know about certain of the government’s evidence, then his assistance may have been constitutionally adequate.”

Torres-Chavez v. United States, Case No. 15-1353                                      (7th Circuit, July 7, 2016)
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ROUGH WEEK FOR THE COUNTRY… AND FOR SENTENCE REFORM

Hopes are waning for passage of the Sentencing Reform and Corrections Act of 2015, as the election season kicked into high gear. Still, last week began with some voices – like a Houston Chronicle editorial – arguinghope160620 that “we know Congress can get the work done. The House just passed a compromise mental health bill on Wednesday that has a bipartisan counterpart in the Senate. As the clock ticks down, these are the sorts of moves that voters should want to see, and passing criminal justice reform before the buzzer would be a victory for everyone.”

But the week ended with tragedy in Dallas. The Marshall Report observed last Saturday night that “in the world of criminal justice, pushes for change can be diverted or stalled by major news events. In recent days, the shooting of two black men by police — captured on video — mobilized demonstrations across the country, demanding police be held more accountable for violent encounters with black civilians. But the sniper killings of five officers in Dallas seems to have stiffened the opposition to reforms. With legislation to reduce prison terms for some crimes stalled by election-year politics and efforts to repair police-community relations moving slowly, leaders across the political spectrum are watching to see if such efforts can survive this heated moment.”

Even before Dallas, the outlook was not promising for sentence reform. The Senate only has 48 more work days planned in 2016, and the House only has 38 days left. Neither chamber has brought the SRCA to the floor for a vote. A new Congress starts in January, meaning that any bill still pending at the end of the year will disappear, and the process must start over in 2017.

torture160523Last week’s shootings in Dallas help feed a national misperception that makes passage of sentence reform very difficult. Last October, 70% of Americans asked told Gallup pollsters that crime is on the increase. Presumptive Republican presidential nominee Donald Trump regularly claims that “crime is rising.” Surges in violence in cities like Chicago are top stories on the news, despite the fact that – as the conservative Weekly Standard pointed out last week – “there’s almost no evidence of either a significant rise in crime or a fundamental change in the largely effective anticrime policies — better policing tactics and increased incarceration — that were adopted starting in the 1980s. Recent efforts at criminal-justice reform, ranging from the Sentencing Reform and Corrections Act pending in Congress to changes in local police practices, couldn’t have plausibly affected national crime rates. On the whole, there’s little reason to panic about rising crime or to think that modest reforms under consideration will do harm.” But it matters little what the facts show. What matters is what the public – and members of Congress – believe the facts to be.

Amy Povah, who served a decade for a federal drug offense and now runs a nonprofit foundation that educates the public about sentencing and conspiracy law reform, argued in Politico last week that “it is critical that the Sentencing Reform and Corrections Act currently pending in the Senate and the Sentencing Reform Act in the House of Representatives pass and be signed into law so that thousands of incarcerated people will also be able to benefit from having a second chance at life. It is also critical that Sen. Tom Cotton [R-Arkansas] rethink his position on criminal justice reform and base his views on facts, not myths.” It’s hard to get people to calmly reflect on their misconceptions when cable news is shrieking about the latest crisis.

skate160711The other criminal justice news last week, the FBI’s pass on Hillary Clinton, led to some wry commentary in the libertarian publication Reason. A sticking point in sentence reform was the conservative push to add mens rea reform to federal law, a change many Democrats oppose. A Reason editor suggested that Hillary’s supporters now “should have a new appreciation for the legal concept of mens rea — literally, ‘defendant’s mind’ — because it looks like it will save her from federal prosecution for her use of a personal email server as secretary of state.” In recommending that DOJ not charge Clinton, FBI Director James Comey “distinguished her ‘extremely careless’ handling of ‘very sensitive, highly classified information’ from previous cases involving ‘intentional and willful mishandling’.”

The Reason article argued that “innocent acts, honest mistakes, and simple accidents can lead to criminal convictions that deprive people of their liberty and property, ruin their reputations, and carry lifelong collateral consequences ranging from impaired occupational opportunities to the loss of constitutional rights. That’s a serious problem recognized by Democrats as well as Republicans, as demonstrated by the bipartisan support for mens rea reform in the House of Representatives. Yet Senate Democrats dismiss the proposed changes… as ‘corporate protection.’ They blame Republican insistence on mens rea reform for imperiling a criminal justice reform bill that until recently seemed likely to pass this year. It would be a shame if disagreement on this issue prevented Congress from reducing excessively harsh federal sentences. But Senate Democrats’ critique of mens rea reform is seriously misguided, if not downright disingenuous.”

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Legal Information Services Associates provides research and drafting services to lawyers. With over 20 years experience in post-conviction motions and sentence modification strategy, we provide services on everything from direct appeals to habeas corpus to sentence reduction motions to halfway house and home confinement placement. If we can help your client, we’ll tell you that. If what your client wants to do is futile, we’ll tell you that, too.

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Sentence Reform Circles the Drain as Politicians Point Fingers – LISA Newsletter for Week of July 4, 2016

typwJuly4th

Vol. 2, No. 32

This week:
Sentence by Survey
Crime By the Numbers
Post Hoc
OMG! Cellphones are Top Contraband in BOP
Chance for Sentencing Reform Slipping Away
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SENTENCE BY SURVEY


Last fall, a jury convicted a man – call him John Doe – of distributing child pornography. He was facing up to 20 years, which is what the government asked for. The presentence report calculated his sentencing range – he had no criminal history – at 21 to 27 years.

POLL160704U.S. District Judge James Gwin polled the jury, however, asking what an appropriate sentence should be. Their suggestions averaged 14 months. Impressed with this, the judge gave Doe 60 months, the mandatory minimum for the offense.

The government appealed. Last week, a 6th Circuit panel unanimously upheld the sentence.

The government argued that the jury poll was an “impermissible factor” for the district judge to consider in crafting a sentence. The 6th Circuit disagreed, noting that the law “provides nearly unfettered scope as to the sources from which a district judge may draw in determining a sentence… District courts also have the authority to reject the Guidelines sentencing ranges based on articulated policy disagreements in a range of contexts. Indeed, we have suggested the plausibility of rejecting guidelines ranges in child pornography cases based on policy disagreements.”

Survey160704The Court suggested that jury polls can help determine an appropriate sentence. While juries lack “the tools necessary for the sentencing decision, they can provide insight into the community’s view of the gravity of an offense.” Here, the 6th said, “the jury did not determine or impose defendant’s sentence. Rather, the district judge – who does possess the necessary tools for the sentencing decision – was at all times interposed between the jurors’ views of an appropriate sentence and the sentencing guidelines’ § 3553(a) factors. Considering the jury’s sentencing recommendation as part of the sentencing calculus did not conflict with the district judge’s duty or ability to properly weigh the § 3553(a) factors and independently craft an appropriate sentence.”

United States v. Collins, Case No. 15-3236 (6th Cir.  June 29, 2016)
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CRIME BY THE NUMBERS

numbers160704The U.S. Sentencing Commission released its annual survey of federal sentencing for 2015 last week. The report is exhaustive in its analysis of the demographics of federal sentencing in the country.  Its highlights included:

•      4,800 fewer sentences were handed down than in 2014, a 6.4% reduction;

•       Drug cases remained the most popular offense (31.8% of all cases), with immigration cases the next most common (29.3%). Meth offenses were the most common and the most severely punished drug crime;

•       87.3% of defendants received prison sentences;

•       Almost 75% of sentences were for less than five years;

•    The proportion of drug offenders convicted of an offense carrying a mandatory minimum penalty was the lowest it has been since 1993.

U.S. Sentencing Commission, Overview Of Federal Criminal Cases,      FY 2015 (June 27, 2016)
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POST HOC

hoc160704Post hoc ergo propter hoc, a Latin phrase meaning “after this, therefore because of this,” is a logical fallacy arguing that because event Y followed event X, event Y must have been caused by event X.

A variant of the fallacy has been popping up since Johnson v. United States came down, confusing petitioners and courts alike. When Lonzo Stanley asked for leave to file a second 2255 because of Johnson, the 7th Circuit used his application as a teaching moment.

A blizzard of filings, the Court said, “depends on a belief that Johnson reopens all questions about the proper classification of prior convictions under the Guidelines and the Armed Career Criminal Act. But the sole holding of Johnson is that the residual clause is invalid. Johnson does not affect the first portion of clause (ii) (‘burglary, arson, or extortion, [or] use of explosives’) and does not have anything to do with the proper classification of drug offenses or the operation of § 924(e)(2)(B)(i), known as the ‘elements clause,’ which classifies as a violent felony any crime punishable by a year or more in prison that ‘has as an element the use, attempted use, or threatened use of physical force against the person of another’. The Guidelines contain the same language.”

crazies160110Lonzo’s “career offender” sentence depended on prior convictions for drug trafficking, aggravated battery of a peace officer, and illegal possession of a firearm. The 7th Circuit noted that Johnson did not alter how drug trafficking convictions counted against a defendant and that aggravated battery remained a violent crime under the ‘elements clause’.

Lonzo thought he had a Johnson play, however, because one prior was a conviction for illegal possession of a firearm, which clearly should not count as a violent offense. But he was wrong. The Court explained that illegal gun possession was not a violent crime, but not because of Johnson. Rather, the offense never qualified as a violent felony. The Sentencing Commission had concluded that a felon’s possession of a gun that could be possessed lawfully by a non-felon is not a crime of violence for the purpose of the career offender guideline, and thus, Lonzo’s district court should not have counted this conviction at his 2004 sentencing. “Because the classification of this conviction is unaffected by Johnson,” the Court said, “§ 2255(f)(3) does not grant Stanley a fresh window to file a collateral attack. Indeed, because Stanley could have appealed his sentence based on the application note, he could not have filed a collateral attack even within the year originally allowed by § 2255(f).”

Lonzo had no offense made nonviolent by Johnson, so he could not file a second § 2255.

United States v. Stanley, Case No. No. 15-3728                                              (7th Cir.   June 27, 2016)
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OMG! CELLPHONES ARE TOP CONTRABAND IN BOP


A DOJ Inspector General report found that cellphones were the favored item of contraband found in BOP facilities, with 8,700 of them found from 2012-2014. The report, issued last week, criticized the BOP for failing to have a policy in place to search its own staff for contraband.

phones160704A search policy BOP implemented in 2013 was discontinued two years later after a union complaint to the Federal Labor Relations Authority. Even that policy was flawed, according to the DOJ report. “The policy provided that all staff and their belongings could be searched randomly or based on reasonable did not prescribe any required frequency for conducting random pat searches, resulting in what we found to be infrequent staff pat searches of varying duration. It also allowed staff to possess and use within institutions items, such as tobacco, that are prohibited for inmates. Additionally, despite the BOP concurring in 2003 with the OIG’s recommendation that it restrict the size and content of personal property that staff may bring into institutions, the 2013 policy contained no such restrictions. The policy further permitted staff to return to their vehicles to store contraband that had been identified during front lobby screening procedures, unless doing so would jeopardize the safety, security, or good order of the institution, or public safety. Finally, the policy did not ensure that only trained and supervised staff was assigned to front lobby positions, and we found that at some institutions entry-level Information Receptionists were assigned to these positions.”

The DOJ report also faulted the BOP for lacking a comprehensive contraband tracking capability, deficiencies in security camera coverage, and lack of staff training on using cellphone tracking technology.

DOJ Office of Inspector General, Review of the Federal                      Bureau of Prisons’ Contraband Interdiction Efforts (June 30, 2016)
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CHANCE FOR SENTENCING REFORM SLIPPING AWAY

circle160704We’ve been pessimistic for months about the chances for passage of the Sentencing Reform and Corrections Act of 2015, now before the Senate as S.2123 and in the House as H.R. 3713. There’s a reason for that.

The political website Real Clear Politics reported last Thursday that the “push for criminal justice reform, the legislation seen as having the best chance of passing Congress this session, has stalled as key senators hold slim hopes of passing anything before the end of year.” Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa), who played a key role in negotiating the legislation, was quoted as saying said the bill is stalled for now. “I don’t see how it gets done before” July 15, Grassley said, referencing the day the senators depart from Washington and won’t return until after Labor Day. “It’s a real big disappointment to me because we’ve worked so hard to do what the leadership wanted to get out more Republican sponsors.”

finger160704Sen. Dick Durbin (D-Illinois), the second-ranking Senate Democrat and an author of the bill, said Republicans had offered him “little to no hope” that the legislation would move forward. Durbin directly blamed Mitch McConnell (R-Kentucky), for the lack of movement, saying that the Majority Leader had “five Republican senators vocally, publicly opposing it, and he didn’t want to take them on.” But a spokesman for McConnell responded, “Discussions continue within our Conference on the issue.”

Senators have said recently they hoped the House would pass legislation to kick-start Senate action. Sen. John Cornyn (R-Texas), the Republican whip and a lead sponsor, said he’d hoped the House would move more quickly and provide momentum in the Senate, but “apparently we ran out of time.”

Time will be in short supply the rest of the year. After its summer recess, Congress will be in session for five weeks in September and October. Then lawmakers leave again until after the election, when they will only have a few weeks to wrap up end-of-the-year matters.

Grassley expressed some optimism, saying there was a “good chance” the legislation could pass in the fall, either in the five weeks after Labor Day or in the lame-duck session after the election in November. But that decision is up to McConnell. “There’s one person that decides what the agenda of the United States Senate is,” Grassley said, adding that he thought McConnell would “give fair consideration to it.”

“There’s no good reason why they haven’t moved forward,” Presidential advisor Valerie Jarrett complained last week, “other than politics.” Ohio State law professor Doug Berman agrees with the sentiment, but not on the culprit. He argued in his sentencing blog last Friday that “the main individual who should be blamed here is President Barack Obama, although lots of other blame can and should be spread around to all the folks who failed to fully appreciate that a series of small “smart on crime” bills would have been far superior and far more likely to become law than the mega-reform bill that was too complicated with too many controversial parts to make passage ever likely.”

hourglass160704Both Cornyn and Durbin say they can still get something passed under the next administration regardless of which party rules the Senate. But an opinion piece at Reason.com last week warned that the developing “massive populist fracture could affect the House vote. We’re hearing a revival of tough on crime tactics from the right (which Donald Trump thoroughly supports). And we’re seeing on the left a desire to punish those “evil” corporations that’s so strong they’re willing to abandon due process to make it happen. This is an election that is heavily revolving around punishing one’s perceived ‘enemies’.” Criminal justice reform pushes may face some significant challenges in the future.”

It’s getting very unlikely that the bill will pass this session. The Senate only has 51 more work days planned (that’s a total of 11 work weeks out of the remaining 26 weeks in the year). The House only has 42 days left. A new Congress starts in January, meaning that any bill still pending at the end of the year will disappear, and the process must start over in 2017.

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Legal Information Services Associates provides research and drafting services to lawyers and inmates. With over 20 years experience in post-conviction motions and sentence modification strategy, we provide services on everything from direct appeals to habeas corpus to sentence reduction motions to halfway house and home confinement placement. If we can help you, we’ll tell you that. If what you want to do is futile, we’ll tell you that, too.

If you have a question, contact us using our handy contact page. 

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Supreme Court to Decide Whether Johnson Applies to Guidelines “Career Offender” – LISA Newsletter for Week of Monday, June 27, 2016


LISAtypewriter140216Vol. 2, No. 31

This week:

Supreme Court to Decide Whether Johnson Applies to Guidelines “Career Offender”
Mathis Says It Does Not Really Matter What You Did
Back To School Time
Have You Stopped Beating Your Wife Yet?
High Livin’ in the Old Dominion
Sob Story
Former AUSA Writes Confessional
Sentencing Reform Bill Would Authorize Assigning ‘Risk Scores’ To Inmates
Sentencing Reform – Even FAMM Is Giving Up?
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SUPREME COURT TO DECIDE WHETHER JOHNSON APPLIES TO GUIDELINES “CAREER OFFENDER”

The Courts of Appeal are badly divided on whether Johnson v. United States applies retroactively to collateral cases challenging federal sentences enhanced under the residual clause in Guideline § 4B1.2(a)(2) (defining “crime of violence”).

steaks160627Today, the Supreme Court decided to answer the question. The Court granted certiorari to a case in which the 11th Circuit denied a petitioner the right to challenge his ‘career offender’ status under Johnson.

The Court leaves for its summer recess after today, resuming in October. A briefing and oral argument schedule will be set for the fall. A decision will probably be handed down early in 2017.

Beckles v. United States, Case No. 15-8544 (certiorari granted,           June 27, 2016)

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MATHIS SAYS IT DOES NOT REALLY MATTER WHAT YOU DID

Everyone knows the Supreme Court handed down a decision last week in Mathis v. United States that further gutted the “burglary” element under the Armed Career Criminal Act. But what does Mathis mean?

Under the ACCA, two kinds of crimes count as “violent” priors that trigger the minimum 15-year sentence: the enumerated crimes clause (which identifies by name the offenses of burglary, extortion, arson, or use of explosives); and the force clause (crimes with use or threatened use of violence causing physical harm). For a state offense – such as burglary – to count under the enumerated crimes clause, it must contain elements no broader than the elements of the common law version of the offense.

burgle160627At common law, a burglary is defined as entering a building or other structure without authorization for the purpose of committing a felony. If a state burglary statute, for example, said that entering a building without authorization for the purpose of committing a felony was a burglary, but defined building to include car, boat or airplane, it was broader than the ACCA version of burglary.

Richard Mathis has a passel of Iowa 3rd degree burglary convictions. An element of the offense is unauthorized entry into an “occupied structure.” So far, the statute sounds even narrower than the ACCA, meaning it should count toward Richard’s 15-year sentence. But elsewhere in the Iowa Code, an “occupied structure” was defined pretty broadly as “any building, structure, or land, water, or air vehicle.”

The 8th Circuit had ruled that the definition provided alternative elements of the offense, and because the elements were in the alternative, the statute was “divisible.” Therefore, the trial court was allowed to employ something the courts call “the modified categorical approach,” a fancy way of saying it could look at the state court record to find out exactly what Richard had done. It turned out he had burgled a house, which fits squarely within the common law definition of burglary, making the prior burglary a crime of violence.

Last week, the Supreme Court disagreed. It held that the “locations are not alternative elements, going toward the creation of separate crimes. To the contrary, they lay out alternative ways of satisfying a single locational element… A jury need not agree on which of the locations was actually involved. In short, the statute defines one crime, with one set of elements, broader than generic burglary—while specifying multiple means of fulfilling its locational element, some but not all of which (i.e., buildings and other structures, but not vehicles) satisfy the generic definition.”

catyou160627The Supreme Court said a court must ask only “whether the defendant had been convicted of crimes falling within certain categories” and not about “what the defendant had actually done.” Richard had been convicted of an Iowa offense that could have been committed by stealing a radio out of a car, a barf bag out of an airplane, or a life vest from a boat. The fact that he ripped off someone’s house did not matter. It’s what he could have done to violate the statute that mattered.

Justice Alito, dissenting, argued that “the upshot of today’s decision is that all burglary convictions in a great many States may be disqualified from counting as predicate offenses under ACCA.

Mathis v. United States, Case No. 15–6092 (Supreme Court,            June 23, 2016)
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BACK TO SCHOOL TIME

school160627The U.S. Dept. of Education has chosen 67 two-year and four-year colleges for a pilot program that will offer Pell Grants to inmates. The program – called Second Chance Pell – will enroll 12,000 prisoners at more than 100 federal and state correctional institutions across the country, aimed at prisoners likely to be released within the next five years.

In some locations, the program will begin as early as next week. Most of the colleges chosen will offer classes in person at the correctional facilities, while some will offer online classes.

Most prisoners have been ineligible for Pell Grants since Congress banned the aid in 1994. “That ban remains in place until Congress acts,” the Secretary of Education said last week. “We are using our experimental authority under the Higher Education Act to support this pilot.”

Studies show that for every dollar spent on college course for inmates, the government saves $4-5 in incarceration costs.

Inside Higher Ed, Prisoners to Get ‘Second Chance Pell’ (June 24, 2016)

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HAVE YOU STOPPED BEATING YOUR WIFE YET?

Stephen Voisine pled guilty in state court to a misdemeanor assault on his wife. Several years later, he was charged with a violation of 18 U.S.C. § 922(g), because a conviction for a misdemeanor crime of domestic violence. The state statute provides that one can violate it intentionally or recklessly. Steve argued that 18 U.S.C. § 922(g) requires that the use of force needed for the offense to qualify as one that forfeits the right to possess guns must be intentional, not just reckless.

beat160627Today, the Supreme Court affirmed the lower courts, holding that a reckless domestic assault qualifies as a misdemeanor crime of domestic violence. The Court said that nothing in the phrase “use. . . of physical force” indicates that § 922(g)(9) distinguishes between domestic assaults committed knowingly or intentionally and those committed recklessly. “Dictionaries consistently define the word “use” to mean the “act of employing” something. Accordingly, the force involved in a qualifying assault must be volitional; an involuntary motion, even a powerful one, is not naturally described as an active employment of force. But nothing about the definition of “use” demands that the person applying force have the purpose or practical certainty that it will cause harm, as compared with the understanding that it is substantially likely to do so.”

The Court concluded that reckless conduct, “which requires the conscious disregard of a known risk, is not an accident: It involves a deliberate decision to endanger another. The relevant text thus supports prohibiting petitioners, and others with similar criminal records, from possessing firearms.”

Voisine v. United States, Case No. 14-10154 (Supreme Court,          June 27, 2016)
LISAStatHeader2smallHIGH LIVIN’ IN THE OLD DOMINION

bribeB160627Former Virginia governor Bob McDonnell had a lousy marriage but a sweet deal. While running the state, the government alleged, Bob performed multiple “official acts” as governor in return for money, loans, expensive gifts and outings from Virginia businessman Jonnie R. Williams — who, prosecutors said, did all of those favors for the Guv in return for the his help in arranging state government contacts who could advance Williams’s business, the sale of a health supplement made from tobacco leaves.

The trial was pretty seamy, exposing a dysfunctional marriage between a power couple who seemed to enrich themselves through wielding their power. Sounds kind of like the Clintons, doesn’t it? The issue, however, before the Supreme Court was whether making a few phone calls and opening doors for Gentleman Jonnie to meet with state officials constituted “official acts” or merely acceptable back-scratching.

The Court held that given its interpretation of “official act,” the District Court’s jury instructions were erroneous, and the jury may have con- victed Governor McDonnell for conduct that is not unlawful. “Because the errors in the jury instructions are not harmless beyond a reason- able doubt, the Court vacates Governor McDonnell’s convictions.”

Today, the Supreme Court vacated the Governor’s conviction. It held that an “official act” is a decision or action on a “question, matter, cause, suit, proceeding or controversy.” That question or matter must involve a formal exercise of governmental power, and must also be something specific and focused that is “pending” or “may by law be brought” before a public official. To qualify as an “official act,” the public official must make a decision or take an action on that ques- tion or matter, or agree to do so. Setting up a meeting, talking to another official, or organizing an event—without more—does not fit that definition of “official act.”

McDonnell v. United States, Case No. 15-474 (Supreme Court,        June 27, 2016).
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SOB STORY


Ralph Dennis was no rocket scientist. He sported an IQ of 74 and a taste for bud and coke. Besides drug dealing, his biggest mistake was to be friends with Kevin Burk.

Kevin was an ex-felon with a taste for guns. When he was caught with one, he volunteered to help the ATF rather than go back to prison. Agents asked him for names of violent criminals, and Kevin gave up Ralph as a guy who did home invasions.

sob160627So ATF concocted a reverse sting, telling Kevin to recruit Ralph to help him rob a stash house. Ralph was not enthusiastic. In fact, he turned Kevin down three times before agreeing to help, and then only because Kevin sold Ralph the sob story that he needed money to help pay for his mom’s cancer treatments.

The ATF wanted Ralph to bring guns to the party, but Ralph didn’t have any. He wanted to use stun guns on the stash house guards so no one got hurt. So Kevin provided Ralph with a gun, which he had when the ATF busted him.

At trial, Ralph’s lawyer asked for an entrapment instruction. The district court refused, saying that Ralph’s prior crimes proved he was predisposed to join the robbery scheme, and he could have withdrawn but he did not.

entrap160627Last week, the 3rd Circuit granted Ralph a new trial, holding the jury should have been given an entrapment instruction. The appeals panel cited Kevin’s central role in recruiting, coaching and equipping Ralph, noting that “Burk’s plea affected Dennis’ decision to join the scheme. And this is unsurprising—a friend whom he had known for years asked for help to pay for his mother’s cancer treatment…. Indeed, the entirety of Burk and Dennis’ conversation seems predicated on friendship.”

The district court found Ralph’s evidence on whether he was predisposed to commit the crime was equivocal because while his three refusals might suggest he was not predisposed, they also showed he could say ‘no’ to Kevin when he wanted to. The Court of Appeals found, however, that “it was not for the District Court to decide the evidence ‘cut both ways’ and draw a conclusion against Dennis. Similarly, it was impermissible for the Court to credit the Government’s evidence when Dennis presented evidence to the contrary.”

Weighing evidence and drawing inferences is a job for the jury, the 3rd Circuit said, not the judge. There was enough evidence to justify the entrapment instruction, and Ralph was thus entitled to a new trial.

United States v. Dennis, Case No. 14-3561 (3rd Circuit,                         June 24, 2016)

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SENTENCING REFORM BILL WOULD AUTHORIZE ASSIGNING ‘RISK SCORES’ TO INMATES

risk160627One aspect of the pending sentencing reform bill attracted some critical attention last week: Truthout, a progressive website, reported on a Pro Publica study of the Act’s provision that would require the government to rate federal prisoners’ risk of committing a future crime and treat them differently according to those ratings. The measure directs the Attorney General to develop a new formula for predicting future behavior or adopt an existing tool. The BOP would then use the algorithm to score and classify inmates.

Inmates who receive low “risk scores” – and those who manage to lower their scores over time – would be allowed to shave time off of their sentences with credits earned through rehabilitation and education programs. “High risk” inmates would not be eligible for sentence reduction.

Such tests are increasingly popular around the country, Truthout complained, used to make decisions about everything from bail to sentencing. The scores are meant as a counterweight to the vagaries and biases of human decisions.

Yet the formulas are often not transparent. ProPublica recently investigated one popular tool sold by a for-profit company and found that it’s frequently wrong and is biased against blacks.

According to an analysis by Federal Public & Community Defenders, the risk scoring system “described in the bill is novel and untested.” The report argues that the scoring of prisoners would be a problem because factors that go into risk assessment calculations tend to correlate with socioeconomic class and race. A fairer and more effective approach, the group says, would be to make recidivism-reduction programs available to all inmates equally.

Truthout, The Senate’s Popular Sentencing Reform Bill                              Would Sort Prisoners by Risk Score (June 24, 2016)

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FORMER AUSA WRITES CONFESSIONAL

A former Assistant United States Attorney turned defense attorney wrote a long and candid article last week discussing the mindset of federal prosecutors. The piece included a discussion about how AUSAs approach the violation of a defendant’s constitutional rights.

punish160627Prosecutors are encouraged to argue that rights are irrelevant, White said. “The argument goes by genteel names like ‘harmless error’ and ‘lack of prejudice’ and ‘immaterial,’ and it is omnipresent in modern criminal procedure. As a prosecutor, it was my job on dozens of occasions to invoke those doctrines to assert that even if defendants’ rights were violated, those violations didn’t matter.”

As an example, White said, “the 4th Amendment requires police to get a search warrant before they make forcible entry to your home to search it. May police officers lie to a magistrate to get that warrant, or deliberately omit information that contradicts the evidence they offer? No, says the Supreme Court – that would violate your rights. But the violation only has a remedy if the lie is material – that is, if the warrant application, stripped of the lie or supplemented with the deceitfully omitted information, would no longer be enough to support probable cause. So when a defendant discovers that law enforcement agents have lied to get a warrant, a prosecutor has every incentive to argue that the lie didn’t matter…”

cop160627“The prosecutor will be making this argument in the context of a search that did turn up incriminating evidence,” White wrote, “which tends to bias judges towards upholding searches. After all… wasn’t the cop’s suspicion proved right? Probable cause is a very relaxed and inherently subjective standard, requiring only a “fair probability” that evidence will be found. The practical effect is that law enforcement can lie in warrant applications with relative impunity, and it’s a prosecutorial duty to think of ways to explain how those lies are irrelevant.”

The deal is different if the defendant lies… “If federal agents lie about you to a magistrate to get a search warrant, the question is whether the lie did actually make a difference. But if you lie to federal agents, the standard is far less forgiving… Thus prosecutors are trained to treat defendants’ wrongdoing harshly and government wrongdoing leniently.”

Reason, Confessions of an Ex-Prosecutor (June 23, 2016)LISAStatHeader2small

SENTENCING REFORM – EVEN FAMM IS GIVING UP?

Anyone who does not think the news cycle drives Congress probably holds title to the Brooklyn Bridge. Last week, the shootings in Orlando dominated the news, and Congress was mired in hastily written bills that would have banned assault rifles – used in fewer than 3% of murders bridge16027– and kept people on the government’s “no-fly” list from buying guns. Democrats staged a “sit in” on the floor of the House because they were not getting their way. There was no sentence reform talk on Capitol Hill. The Sentencing Reform and Corrections Act of 2015 continues to languish in the Senate (S. 2123) and the House (H.R. 3713).

It hardly matters that the legislation enjoys bipartisan support. Last week, Sen. John Cornyn (R-Texas) wrote in the Dallas Morning News that “locking people up and throwing away the key, as it turns out, is not always the most effective way to stop crime. It is also an expensive and inefficient way to spend taxpayer dollars.” Citing Texas’s dramatic decrease in prison populations, Sen. Cornyn argued, “the Texas model is worth bringing to the rest of the country. Now Congress has that chance. The Sentencing Reform and Corrections Act is a bipartisan bill that incorporates many of these policies that have proven effective in conservative states – our laboratories of democracy. Importantly, this legislation will also help restore a key part of our criminal justice system that is too often forgotten: rehabilitation. Through education, job training and faith-based programs, low-level inmates will learn valuable life skills that they can take back home to their communities, helping them become productive members of society.”

But enough happy talk. Although the year is only half over according to the calendar, Congress is already winding down. The Senate only has 55 more work days this year (that’s a total of 11 work weeks out of the remaining 27 weeks in the year). The House only has 42 days left. A new Congress starts in January, meaning that any bill still pending at the end of the year will disappear, and the process must start over in 2017. That’s very little time to get sentencing reform passed.

politics160627In a puff story last week on Kevin Ring, former lobbyist and Federal inmate, now vice president of Families Against Mandatory Minimums, The Hill referred to sentencing reform legislation as “once the political darling of a divided Senate and now an apparent victim of the rapidly shrinking 2016 congressional calendar… With the November election looming — and all the incendiary rhetoric that has colored this year’s contest — FAMM is happy to wait until 2017 for wholesale reforms, Ring says. The group had formerly supported a bipartisan effort from the Senate Judiciary Committee, but now he fears being forced to fight back a myriad of tough-on-crime amendments put forward by jumpy lawmakers if the bill were to reach the floor.

“We think the window is, if not closed, close to closing,” The Hill quoted Ring as saying. “But in our view, this isn’t the best time to be passing criminal justice reform anyway. In a presidential election year, you’re beating back really bad political ideas. The worst mandatory minimums are passed during election years because they are seen as politically valuable.”

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Legal Information Services Associates provides research and drafting services to lawyers and inmates. With over 20 years experience in post-conviction motions and sentence modification strategy, we provide services on everything from direct appeals to habeas corpus to sentence reduction motions to halfway house and home confinement placement. If we can help you, we’ll tell you that. If what you want to do is futile, we’ll tell you that, too.

If you have a question, contact us using our handy contact page. We don’t charge for initial consultation. 

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New Hope that Rule 11(c)(1) Defendants Can Get 2-Level Reductions – LISA Newsletter for Week of June 20, 2016


LISAtypewriter140216
Vol. 2, No. 28

This week:

9th Circuit Gives New Hope for Sentence Reduction Grants to Rule 11(c)(1) Defendants
The Sobering Math on Clemency
DOJ Finds That BOP is Overcharged for Outside Medical Care
Get Your Facts Straight – Then You Can Hammer the Defendant
BOP “Revolving Door” Blamed for Poor Oversight of Private Prisons
On the 30th Anniversary of Len Bias’ Death, Time Conspires Against Sentencing Reform
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9th CIRCUIT GIVES NEW HOPE FOR SENTENCE REDUCTION GRANTS TO RULE 11(c)(1) DEFENDANTS

hope160620The Sentencing Commission reports that, year to year, about 97 percent of all federal defendants take plea deals. One of the options for a plea deal – Rule 11(c)(1) of the Federal Rules of Criminal Procedure – lets the government and defendant agree on a specific sentence. The judge then can either accept the sentence as agreed upon, or reject the sentence, in which case the plea agreement dies and the defendant reverts to a “not guilty” plea.

A Rule 11(c)(1) plea is often a pretty good deal, because the defendant knows just what’s coming down the road. But over the past few years, a lot of defendants have had buyer’s remorse, after they found out that the 2-level reductions in the drug tables didn’t necessarily help them.

How about "fractured opinions?"
     How about “fractured opinions?”

The issue got to the Supreme Court a few years ago in Freeman v. United States. The opinion was badly fractured, with the consensus generally being interpreted to be that an 11(c)(1) defendant could only get a 2-level reduction if the plea agreement showed that his or her agreed-on sentence was set in reliance on the Guidelines.

Last week, the en banc 9th Circuit took a fresh whack at interpreting Freeman, and reversed a district court’s determination that Tyrone Davis was not eligible for the 2-level reduction. Applying Marks v. United States, a Supreme Court case that explains how to interpret fractured Supreme Court opinions, 9th held that Freeman lacks a controlling opinion “because the plurality and concurring opinions do not share common reasoning whereby one analysis is a logical subset of the other.”

This sounds pretty dry so far, but what it means, the Court said, is “even when a defendant enters into an 11(c)(1)(C) agreement, the judge’s decision to accept the plea and impose the recommended sentence is likely to be based on the Guidelines; and when it is, the defendant should be eligible to seek § 3582(c)(2) relief.” The Court thus ruled that all Freeman says is that “defendants sentenced under Rule 11(c)(1)(C) agreements are not categorically barred from seeking a sentence reduction under § 3582(c)(2).”

Most other circuits have read Freeman restrictively, with only the D.C. Circuit joining the interpretation adopted last week by the 9th. This could set up a Supreme Court revisiting of the issue, as defendants elsewhere file for 2-level § 3582(c)(2) reductions, only to be denied by courts of appeal that disagree with the 9th and D.C. Circuits.

The 9th Circuit argues that by the 2-level reductions “Congress and the Sentencing Commission sought to address the urgent and compelling problem of crack-cocaine sentences. To read Freeman as restrictively as other courts have done extends the benefit of the Commission’s judgment only to an arbitrary subset of defendants whose agreed sentences were accepted in light of a since-rejected Guidelines range based on whether their plea agreements refer to the Guidelines.”

United States v. Davis, Case No. 13-30133 (9th Cir.  June 13, 2016)

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THE SOBERING MATH ON CLEMENCY

math160620For anyone wondering about the snails’ pace of the disorganized Obama clemency process – which a Reason article last week said has “stranded many of the prisoners and families it was supposed to help” – a remedial math lesson is all that’s required.

In January 2016, Pardon Attorney Deborah Leff quit barely a year after she got the job. Leff complained that DOJ had “not fulfilled its commitment to provide the resources necessary for my office to make timely and thoughtful recommendations on clemency to the president.” According to USA Today, “Leff said Deputy Attorney General Sally Yates had overruled her recommendations in an increasing number of cases—and that in those cases, the president was unaware of the difference of opinion.” After her departure, a longtime federal prosecutor, Robert A. Zauzmer, was appointed to fill her shoes.

No rocket's going to move this snail very soon
No rocket’s going to move this snail very soon.

Since Leff’s departure, the Office of the Pardon Attorney remains overwhelmed. In January, the office only had 10 lawyers, which The New York Times noted is “virtually the same size it was 20 years ago,” despite the fact that the number of clemency petitions has increased substantially. “From all accounts of what we’ve heard, the president is personally engaged in this issue,” an observer said. “I think the problem isn’t lack of will, but the lack of infrastructure.”

Early this year, OPA announced it was hiring 16 new attorneys, which would bring the total number of lawyers in the office to 26.

With 10,621 commutation petitions pending in May, and only 26 attorneys available to review, this means that each staffer is responsible for thoroughly reviewing roughly 408 petitions each over the next 6 or so months before Obama leaves office. And the petitions lucky enough to get vetted through the first stage have to endure the bureaucratic vetting process in place before eventually landing on the president’s desk.

Volunteer lawyers known as Clemency Project 2014 have been vetting petitions for the Pardon Attorney. As of June 2, CP14 has sent only 1,150 petitions to the Office of the Pardon Attorney for review. Of those, 145 petitions have been acted on, which means they’ve either been granted or denied by the President, and 111 have been granted.

At this pace, the Reason article argued, “it seems likely that Obama’s clemency initiative will benefit few, while the majority of otherwise eligible inmates will remain behind bars.”

Reason, President Obama’s Clemency Project is a bureaucratic nightmare (June 10, 2016)

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DOJ FINDS THAT BOP IS OVERCHARGED FOR OUTSIDE MEDICAL CARE

The Department of Justice Office of Inspector General complained in a report last week that BOP spent $100 million in 2014 than other federal agencies paid for the same services.   Thus, the report suggested, it’s not surprising that BOP’s spending for outside medical services increased 24 percent that year, while its overall budget increased at less than half that rate.

Kick160620The OIG said, “We found that the BOP is the only federal agency that pays for medical care that is not covered under a statute or regulation under which the government sets the agency’s reimbursement rates, usually at the Medicare rate. Instead, the BOP solicits and awards a comprehensive medical services contract for each BOP institution to obtain outside medical services. At the end of FY 2014, all of the BOP’s comprehensive medical services contracts paid a premium above the applicable rates paid by Medicare for medical services.”

The report said that BOP “has historically opposed” to being required to may Medicare reimbursement rates, like other federal law enforcement agencies are required to do. BOP said that because its inmates are generally incarcerated for longer periods than detainees held by other federal law enforcement agencies, it must provide both acute and chronic (long-term) medical care for its inmates, while other law enforcement agencies provide only acute care. The OIG found that BOP “has not fully explored other legislative options that might help it control its medical costs without compromising provider access… As a result, while federal law requires that medical providers who treat members of the military and their dependents, Veterans, Native Americans, federal pre-trial detainees, and immigration detainees accept the Medicare rate when reimbursed by the federal government, those same providers are allowed to charge the BOP a premium above the Medicare rate when treating BOP inmates.”

DOJ Office of Inspector General, The Federal Bureau of Prisons’ reimbursement rates for outside medical care (June 2016)

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GET YOUR FACTS STRAIGHT… THEN HAMMER THE DEFENDANT

Defendant John Doe Brown (we’re using a pseudonym here) was convicted of production of child porn, for photographing three minors. The district court hammered him with a 60-year sentence, commenting repeatedly on “the trauma to these three children,” the fact that “three children” would have to “worry for the rest of their lives” about the photographs, and that Brown “destroyed the lives of three specific children.”

There's nothing like getting your facts straight, Your Honor ...
There’s nothing like getting your facts straight, Your Honor …

The problem was that while two of the kids had been posed for pictures, John Doe had taken photos of the third child only while she slept. In fact, her mother declined to submit a victim impact statement specifically because her daughter “was unaware of the abuse” and had experienced “no negative impact.”

Last week, the 2nd Circuit reversed the sentence, underscoring a problem that is generally applicable to all federal defendants. The appellate court explained that “the district court’s explanation suggests that the individual harm suffered by each of Brown’s three victims played a critical role in its decision to impose three consecutive 20‐year sentences.  But the sentencing transcript also suggests that the district court may have misunderstood the nature of that harm as to Brown’s third victim. Three times the court emphasized the mental anguish that “three specific children” would suffer as a result of Brown’s abuse. Brown’s third victim, however, has no knowledge of having been victimized. To be sure, the district court was entitled to punish Brown for that abuse regardless of whether the victim was aware of it. But given the district court’s repeated emphasis on the fact that Brown had destroyed the lives of “three specific children,” we conclude that it is appropriate to remand for resentencing to ensure that the sentence is not based on a clearly erroneous understanding of the facts.”

hyper160620The Court said “we understand and emphatically endorse the need to condemn Brown’s crimes in the strongest of terms. But the Supreme Court has recognized that ‘defendants who do not kill, intend to kill, or foresee that life will be taken are categorically less deserving of the most serious forms of punishment than are murderers’… The sentencing transcript suggests that the district court may have seen no moral difference between Brown and a defendant who murders or violently rapes children, stating that Brown’s crime was “as serious a crime as federal judges confront,” that Brown was “the worst kind of dangerous sex offender,” and that he was “exactly like” sex offenders who rape and torture children.  Punishing Brown as harshly as a murderer arguably frustrates the goal of marginal deterrence, “that is, that the harshest sentences should be reserved for the most culpable behavior…” Finally, to the extent that the district court believed it necessary to incapacitate Brown for the rest of his life because of the danger he poses to the public, we note that defendants such as Brown are generally less likely to reoffend as they get older.”

One does not have to like crimes such as John Doe’s offense to understand – often from personal experience – that some district judges get hyperbolic at sentencing, and often mangle the facts. The 2nd Circuit decision suggests that appeals that focus on intemperate remarks at sentencing may be fruitful.

United States v. Brown, Case No. 13-1706 (2nd Cir. June 14, 2016)

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BOP “REVOLVING DOOR” BLAMED FOR POOR OVERSIGHT OF PRIVATE PRISONS

Review of 20,000 pages of records obtained from the BOP after a Freedom of Information Act request has led to a scathing report in The Nation last week, that accuses the BOP of ignoring signals of terrible conditions in private prisons with which it contracts.

A fatal 2012 uprising at Adams County Correctional Center in Natchez, Mississippi – run by Corrections Corporation of America – was one of four riots to explode in the BOP’s private prisons since 2008, all triggered by grievances over medical care. The trove of previously unreleased monitoring reports, internal investigations, and other documents show that the BOP had been warned of substandard care by its own monitors for years but failed to act.

Doug Martz, chief of the BOP’s private-prison contracting office at the time of the riot, said, “Even before the officer was killed, there were significant issues” with CCA’s management. “Inadequate medical care, low staffing levels, food-service issues. When you put all those together, it became ignitable.” After the riot, he says, “We wanted to walk away.” But when he sent a closure recommendation up the chain to the bureau’s CFO, Martz says, “We were flat out told, ‘No.’ ”

rdoor160620Martz, who retired in in 2014 after 25 years with the BOP, says that the agency’s failure to shut down Adams was due in part to a cozy relationship between bureau leadership and private-prison operators. In 2011, for example, just a year before the riot, BOP director Harley Lappin – who resigned at the same time he was arrested for drunk driving – joined CCA as executive vice president. Last year, he earned more than $1.6 million. At least two other BOP directors have also moved on to leadership positions at companies with BOP contracts, and Martz charges that one of them appeared at bureau meetings with contractors. “It made things difficult,” he says.

Last February, The Nation reported that at least 38 men died in privately run BOP prisons from 1998 to 2014 due to inadequate medical care. The new records show that in the last 9 years alone, BOP monitors documented 34 inmate deaths due to substandard medical care. Fourteen of the deaths occurred in prisons run by CCA. Fifteen others were in prisons operated by the GEO Group.

The report says, “In some facilities, inmates went months without seeing a doctor. Some prisoners who required emergency care were not transferred to a hospital, in an apparent attempt to save costs.”

According to The Nation, “The records and interviews with former BOP officials reveal a pattern: Despite dire reports from dozens of field monitors, top bureau officials repeatedly failed to enforce the correction of dangerous deficiencies and routinely extended contracts for prisons that failed to provide adequate medical care.”

The Nation, Federal Officials Ignored Years of Internal Warnings About Deaths at Private Prisons (June 15, 2016)

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ON THE 30TH ANNIVERSARY OF LEN BIAS’ DEATH, TIME CONSPIRES AGAINST SENTENCING REFORM

bias160620In life, Len Bias was basketball’s next great hope, contender for a crown that went instead to Michael Jordan. In death, he became a trigger for the war on drugs.

NBC Sports reported last weekend that Bias’s 1986 cocaine overdose helped sparked a panic, stoked by false rumors about crack cocaine – which was not involved in Bias’s overdose and death – and a high-stakes bipartisan political furor against drugs. When the dust had settled, the Anti Drug Abuse Act of 1986 had been passed, the 100-to-1 ratio for crack to powder coke had been adopted, and thousands of low-level drug offenders — most of them young and black — were destined to become federal inmates over the next three decades.

Thirty years later, NBC says, America is still reeling from the impact. In the year before the ADA passed, there were about 35,000 people in federal prison, 9,500 of whom were in on drug charges. Today, according to the BOP, there are about 195,000 federal inmates, with half serving time for drugs.

So where is the Sentencing Reform and Corrections Act of 2015? It’s pretty much stalled, with the Senate version (S. 2123) not scheduled for floor action, and the House version (H.R. 3713) still locked in a dispute between Democrats and Republicans over mens rea reform.

In the Senate, the raging battle is between conservatives who support reform and conservatives who oppose it. Last week, the conservative Federalist argued that the “Sentencing Act is not perfect. No legislation is. But it represents a good-faith, bipartisan effort to improve our prisons and courts, making the former more efficient and the latter more fair. It is broadly in line with state-level reforms that have already yielded considerable success. The proposed measures are also modest, making it exceedingly unlikely this law will precipitate a crime wave. It is a well-conceived and responsible piece of legislation.”

The conservative Heritage Foundation’s Daily Signal ran a puzzling piece last week which told the story non-violent drug offender Sherman Chester (who recently received a commutation after serving 20 years of his draconian mandatory minimum sentence) even while arguing that the 1986 ADA was a good idea at the time. But now, the Daily Signal says, “when it comes to reforming mandatory minimum laws, it is important to consider the nature of the serious offenses giving rise to such penalties and the harms they cause to society. At the same time, it is important to consider what should be done for people like Sherman Chester so that, in appropriate cases, the quality of mercy is not strained. This is a discussion worth having.”

Julie Stewart, president of Families Against Mandatory Minimums, wrote a piece in the liberal Huffington Post last week urging Congress to make the Fair Sentencing Act of 2010 retroactive, but given the fact that S. 2123 has already had many of its retroactive provisions gutted in order to garner Republican support, the likelihood that Congress would ram through FSA retroactivity in the waning days of 2016 falls somewhere between slim and none.

Like the odds for sentencing reform?  Then you'll love buying one of these ...
Like the odds for sentencing reform? Then you’ll love buying one of these …

In fact, the odds that the Sentencing Reform and Corrections Act of 2015 will be voted on before the end of the year are getting pretty long. The Senate only has 60 more work days     this year, the House 46. A new Congress starts in January, meaning that any bill still pending at the end of the year will disappear, and the process must start over in 2017.

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Legal Information Services Associates provides research and drafting services to lawyers and inmates. With over 20 years experience in post-conviction motions and sentence modification strategy, we provide services on everything from direct appeals to habeas corpus to sentence reduction motions to halfway house and home confinement placement. If we can help you, we’ll tell you that. If what you want to do is futile, we’ll tell you that, too.

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