Tag Archives: 3582 motion

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

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

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NICE GUYS DON’T NECESSARILY FINISH LAST

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

– Thomas L. Root

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A Little Post-Hoc Factfinding Upends a Sentence Reduction – Update for August 30, 2017

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

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KEEPING THE PROMISES YOU INTEND TO KEEP

kept170830George Stephanopoulos famously defended his former boss, President Bill Clinton, as a guy who had “kept all of the promises he intended to keep.” You could forgive inmates seeking a reduction of sentence under 18 USC 3582(c)(2) for feeling the same way about the Supreme Court.

Not that the Court should get all of the blame. Sec. 3582(c)(2) is one of those limited exceptions to the general rule that when a conviction is final, it is final. Congress designed the exception into the Sentencing Reform Act of 1984, providing that when the Sentencing Commission changed a sentencing guideline after a defendant’s conviction was final and specifically provided that the change should be retroactive to final convictions, an inmate could petition the court to apply the change. The district court could apply it if the effect would be to reduce the sentence, but even then the judge retained discretion whether to apply it or not.

Those are a lot of hoops through which a defendant must jump. Many have succeeded, inasmuch as the Sentencing Commission has reduced drug quantity guidelines three times since 2007. Of course, when prisoners asked for the reduction, they often threw in a lot of extraneous errors, omissions and complaints about their original sentencings that they wanted the judge to fix as well.

brung170830Judges resisted turning a very limited, pointed sentence reduction proceedings into a sentencing mulligan. The issue found its way to the Supreme Court in 2010. There, the Court ruled in Dillon v. United States that the 3582(c)(2) proceeding was a limited resentencing where no factual findings from the first sentencing could be revisited, no new developments could be addressed, and no additional wrongs – old or new – could be redressed. Instead, the district court took the record as it was, except for the new lower guideline, and sentenced according to the newly adjusted guideline range.

All right. Prisoners could live with that. The Supreme Court promised that there would no new fact-finding, but instead the 3582(c)(2) proceeding would run off the record that closed at conviction. Since the Dillon case, the Sentencing Commission made the 2014 2-level reduction in drug offenses retroactive, and almost 30,000 inmates followed the Dillon playbook and received reductions.

One of the people seeking the reduction – although not on the list of 30,000 successful inmates – was Raul Mercado-Moreno. Raul had been convicted of manufacturing and distributing methamphetamine, a lot of it. Exactly how much was the question. At the time, the guidelines’ top range of 38 was reserved for people whose cases involved more than 1.5 kilograms of meth. At Raul’s sentencing, the judge held that Raul had distributed more than 4.3 kilos. The number was not reached with a lot of precision, because it did not much matter: with the bottom of his range being 1.5 kilos and the top of the range being infinity, a rough number seemed good enough.

Rough or not, the 4.3 kilos was the record finding when Raul was sentenced, and he was confident it would continue to be the record finding for his 3582(c)(2) motion.

But the 2014 reduction in drug quantities changed the equation. Now, Offense Level 38 was reserved for more than 4.5 kilos of actual methamphetamine or more. The range of 1.5 to 4.5 was set at Level 36. Raul’s 4.3 kilos would put him within this lower range, and would yield a sentence reduction of at least 22 months.

Raul filed his petition for sentence reduction in front of a different district judge, because his first one had retired. Relying on the 4.3-kilogram quantity the district court had found at sentencing, Raul argued he was entitled to a new sentence of 188 months instead of the 210 he had been given.

corso170112“Not so fast!” the new judge said. That 4.3-kilo figure was a quick and dirty estimate of how much Raul had distributed. It never, the district court said, was intended to represent the amount Raul had distributed AND manufactured. When the manufactured meth was included, the court found, Raul’s quantity was way over 4.5 kilograms, which means his offense level stayed at Level 38, and he thus had nothing coming.

Raul appealed, arguing that the district court had found the weight of 4.3 kilos at sentencing, and that Dillon meant the new judge had to dance with girl who brung the old judge to the dance.

Monday, the 9th Circuit disagreed with Raul. A district court is bound by the facts it found at sentencing, the Circuit admitted, but only where those are complete. “In those cases where a sentencing court’s quantity finding is ambiguous or incomplete,” the appeals panel said, “a district court may need to identify the quantity attributable to the defendant with more precision to compare it against the revised drug quantity threshold under the relevant Guidelines amendment. The Supreme Court indicated that such fact-finding was permissible in Dillon.

Here, the 9th said, the original fact-finding was incomplete because the district court found that Raul had distributed at least 4.3 kilograms without ever mentioning how much Raul might have manufactured. “Section 3582(c)(2)’s eligibility inquiry may require a district court to supplement the original sentencing court’s drug quantity findings to ‘determine the amended guideline range that would have been applicable’ to the defendant in light of a retroactive Guidelines amendment.”

mickeyS170830It seems a lot like the courts are only keeping the part of Dillon’s promise they intended to keep. We would be more comfortable with the holding if it were the original judge ruling on the 3582(c)(2) motion. The original judge would presumably know what he had meant when he found the 4.3 kilo figure. It seems to us that the quantity of meth that Raul manufactured would be subsumed by the quantity he distributed. Clandestine labs don’t usually keep meth on the warehouse shelf. It’s sort of like McDonald’s: the sign in front does not count how many hamburgers were cooked. Rather, it counts the number served. So we think it’s a stretch to suggest there is a heretofore undeclared amount of meth that was made but not sold.

On the other hand, the district judge was fully empowered to look at the original 4.3 kilos found to be the amount distributed, and to conclude that that the defendant should not benefit from the sentence reduction, even if he were eligible for it. Thus, to a great extent, this is a case of “no harm, no foul.” But it is troubling that without notice or opportunity to be heard, a district court may declare a prior factual finding incomplete, and revise it upward.

United States v. Mercado-Moreno, Case No. 15-10545 (9th Cir., August 28, 2017)

– Thomas L. Root

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When Lawyers Check In… but Don’t Check Out – Update for April 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.

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YOU HAVE THE RIGHT TO AN ATTORNEY WHO YOU CAN’T GET RID OF

Sacred to 6th Amendment law is a defendant’s right to an attorney in criminal prosecutions. In fact, a defendant has a right to an attorney of his or her choice, and within reason, can compel a court to appoint a different lawyer if the accused is unhappy with the one who was first appointed.

roach170310A defendant’s right extends to an appeal and sometimes to post-conviction hearings, rights that have been extended by statute rather than the 6th Amendment. In fact, many inmates who sought 2-level drug sentencing reductions over the past few years found that district courts had issued blanket orders appointing the federal public defender in the district to represent those seeking a sentence reduction under 18 USC 3582(c)(2).

Brad Tollefson was one of those prisoners who suddenly found he had appointed legal help. All on his own, Brad had figured he was due for a sentence reduction under Guidelines Amendment 782, and so he filed a motion with his court that he wrote himself, asking for a reduction from 227 to 165 months, arguing that he had really done a great job rehabilitating himself in prison.

But because the district court had issued a blanket order appointing the federal defender to represent everyone seeking a 2-level reduction, Brad had a mouthpiece. His the public defender then filed a motion, too, this one seeking a sentencing cut for Brad down to 183 months.

Brad’s judge was unimpressed with either motion. He thought Brad had already gotten a good enough deal, a prior cut for assisting the government and a downward variance from his Guidelines range. The district court denied both motions, and Brad got nothing.

reallawyer170216Brad filed an appeal, arguing that his 6th Amendment rights were violated, because he didn’t want the public defender’s help. Brad blamed the PD’s conflicting motion for the judge refusing any cut at all. Last week, the 8th Circuit denied his appeal.

Brad argued the district court violated his due process right to be heard because it appointed the federal public defender to represent him. But the Circuit said that to comply with due process, all a district court must do is provide a defendant “adequate notice and reasonable opportunity to be heard.” Because the Supreme Court previously held defendants have no due process right to self representation on direct appeal of their convictions, the 8th said “we find no reason why we should not extend the holding to postconviction sentence reduction proceedings.

Brad complained that his appointed attorney provided ineffective assistance. Because he had no right to counsel during his postconviction sentence reduction proceedings, the Circuit said, Brad “cannot assert a valid claim for ineffective assistance.”

United States v. Tollefson, Case No. 16-1903 (8th Cir., April 6, 2017)

– Thomas L. Root

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