Tag Archives: 5k1.1

Minus One, Plus Two at Supreme Court – Update for December 12, 2017

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


You may recall McCarthan v. Collins, a case dealing with when and under what terms an inmate may use a 28 USC 2241 motion. Nine federal circuits let inmates file 2241s under the 2255 “saving clause,” which provides that a prisoner may use the 2241 form of federal habeas corpus if it “appears that the remedy by [2255] motion is inadequate or ineffective to test the legality of his detention.”

futility171212Earlier this year, however, the 11th Circuit held that an initial Section 2255 motion is an adequate and effective remedy to “test” a sentence, even when circuit precedent forecloses the movant’s claim at the time of the motion. After all, the Circuit said, a movant could have asked the court of appeals to overrule its precedent, sought Supreme Court review, or both. The saving clause in Section 2255(e), the 11th said, is concerned only with ensuring that a person in custody has a “theoretical opportunity” to pursue a claim, even if, at the time of the initial 2255 motion, the claim was virtually certain to fail in the face of adverse precedent. In other words, you have to raise arguments even when the court has already said the arguments are futile.

Both the 11th and 10th adhere to this draconian view. Dan McCarthan challenged the 11th Circuit interpretation. A few weeks ago, we reported that the Trump Justice Department asked the Supreme Court not to take the case, even though it acknowledged that the legal question is significant and that its new position could condemn inmates to serve out unlawful sentences. A week ago, the Supreme Court denied certiorari to Dan.

Meanwhile two new sentencing cases have been added to the Supreme Court docket. Hughes v. United States revisits the 2011 Freeman v. United States decision. Freeman said that a defendant with a F.R.Crim.P. 11(c)(1)(C) sentence – one where the sentence was fixed in the plea agreement – could get a sentence reduction under retroactive Guidelines changes only were the sentence was somehow tied to the Guidelines. Freeman was a 5-4 decision, and the fifth Justice only concurred, which made her concurring opinion the one that controlled.

undo160812Freeman has been a mess. Hughes gives the Court a chance for a do-over that may let more people with Rule 11(c)(1)(C) sentences reductions.

It frequently happens that defendants cooperate with the government, and are rewarded with a reduction in sentence under Sec. 5K1.1 of the Sentencing Guidelines. In Koons v. United States, the Supreme Court will determine whether a defendant who has a mandatory minimum sentence prescribed by statute, but who gets a 5K1.1 sentence reduction beneath that minimum, can later get a sentence reduction under retroactive Guidelines changes, even where the new sentence is below the mandatory minimum that was voided by the 5K1.1 motion.

Hughes v. United States, Case No. 17-155 (certiorari granted Dec. 8, 2017)

Koons v. United States, Case No. 17-5716 (certiorari granted Dec. 8, 2017)

– Thomas L. Root


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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

– Thomas L. Root


District Judge Won’t Go Along With the Government’s Program, Gets Slapped – Update for June 28 ,2017

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


mario170628Mario Crancho, a trucker from Mexico, got busted in Arkansas with 43 kilos of coke hidden in his trailer. He wisely agreed to cooperate, and proceeded to make controlled deliveries, identified stash houses and debriefed extensively on the trans-border coke trade.

Of course, the government freely used its considerable powers to assist Mario, too. First, the government somehow failed to pass on to the Presentence Report writer the actual drug quantity Mario had shipped, instead mentioning only two of over 20 trips Mario had made from south of the border. This conveniently omitted probably 95% of the quantity he had actually shipped, leaving him with a very favorable advisory sentencing range of 168-210 months. The district judge wondered why, but lacking any cooperation from the parties in providing the right number, he ultimately adopted the PSR “without change.”

Then, at the sentencing hearing, the prosecution waxed rhapsodic about Mario’s assistance, calling it very substantial and asking for a 50% sentence cut from the low end of his guidelines pursuant to a USSG § 5K1.1 downward departure.

So how many pallets of Mario’s cocaine did the court not hear about? Inquiring minds – including the judge’s – want to know…

The district court reluctantly granted the government’s 5K1.1 motion, concluding that Mario had provided substantial assistance. But the judge was troubled, and pretty clearly had had a bellyful of these kinds of deals. The court said he was “really struggling with this because, while he has provided substantial assistance, what it does is shows me the breadth of… his involvement in these drug crimes, and it’s huge.” The district court had “seen people with not nearly this culpability go to jail for extended periods of time” and was “struggling with the 50 percent reduction and with the low end of the guidelines.”

And isn’t that the problem? The government has so much power to shower love on people who assist it, no matter their prior culpability. And the poor shmuck who peddled nickel bags on the corner. He didn’t know nuthin’, and so he’s got no information to trade. Watch the U.S. Attorney’s young guns hammer that kid at sentencing.

hammer160509However, when Mario’s judge expressed his misgivings, the government doubled down, becoming even more effusive. It argued Mario was super, having placed himself in great personal danger by making the controlled deliveries, that he began cooperating with the government at his first opportunity (forgetting his previous 21 coke runs from Sinoloa to North Carolina), and that had provided other valuable information as well. Defense counsel chimed in that Mario was a great guy and had a successful trucking business (that success helped no doubt by payments received for shipping hundreds of kilos of coke to the Tarheel State).

The government’s happy talk did not allay the district court’s concerns:

The problem I have with this is he’s given the opportunity to cooperate because he was so high up and because he was driving so much drugs and he was dumping that crap here in Winston-Salem, and we send people to jail every day for .6 grams of drugs, and it is massive amounts of drugs, and… in terms of the equity in sentencing… I can tell you I am not going to the low end, and I am still struggling with whether or not I am going to do the actual total 50 percent.

The judge sentenced Mario to 210 months, the top of the guidelines, and then cut it by 40% for substantial assistance. So instead of walking out of the courtroom with 84 months, Mario ended up with 126 months. That’s 44 months more than Mario expected, for the math-challenged among us.

Mario appealed, and on Monday, the 4th Circuit slapped the district judge’s hand.

Fourth Circuit case law requires a district court determining the extent of a 5K1.1 departure to consider assistance-related factors only. The district court clearly found Mario’s assistance to be substantial, but then judged the 50% reduction not on the extent or quality of Mario’s assistance but instead to the scope of the charged conspiracy and the level of Mario’s culpability in that conspiracy, questioned the equity of giving Mario a lower sentence than is often imposed on less culpable defendants, and condemned the destructive effect of the “junk” that Mario was “dumping” on the community.

The 4th Circuit's subtle advice to the district judge...
The 4th Circuit’s subtle advice to the district judge…

The Circuit admitted there was no problem relying on those other factors in setting the 210-month end of the guidelines, but the district court used it again in selecting a 40% instead of 50% reduction. The Court of Appeals said, “these concerns, which focus on facts related to the charged conspiracy, simply bear no relation to the nature, extent, and significance of the defendant’s assistance.”

Bottom line: The district judge was substituting his judgment for the prosecutor’s. There’s little room for that kind of judicial independence under the current sentencing regime.

The case was remanded for resentencing.

United States v. Crancho, Case No. 15-4760 (4th Cir. June 26, 2017)

– Thomas L. Root