Tag Archives: 924(c)

Some Short Notes from D.C. – Update for August 7, 2017

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

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TWO INTERESTING D.C. CIRCUIT RULINGS END LAST WEEK

The D.C. Circuit handed down a pair of rulings last Friday. One, the reversal of sentences (and in one case, a conviction) for four Blackwater contractors over a 2007 Baghdad massacre, was widely reported. The other, a case about prisoners’ waivers of FOIA rights, flew under the radar. Both are of significance to federal inmates.

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D.C. CIRCUIT SAYS 924(C) SENTENCE IN BLACKWATER CASE VIOLATES 8TH AMENDMENT

carriefgun170807The big news from the D.C. Circuit last Friday was the reversal of sentences for four Blackwater private security contractors who massacred 14 civilians after they mistakenly thought they were under attack on a Baghdad street. Buried in that decision is a holding of interest to federal prisoners with 18 USC 924(c) convictions, especially where those counts are stacked to result in horrendous sentences.

The contractors were armed with government-issued M4 rifles, which of course can be set to fire fully automatically. Because of that, each of the defendants – found guilty of committing a crime of violence with a gun – got a mandatory sentence of 30 years because the weapon was a machine gun.

Apparently, hanging the 924(c) machinegun sentence on the defendants was contentious, even in the Justice Department. The D.C. Circuit agreed, ruling that applying the mandatory 30-year sentence to the contractors – based “solely on the type of weapons… used – violated the 8th Amendment’s prohibition against cruel and unusual punishment.

In its opinion, the Circuit tried mightily to limit the decision to the facts of the case: It notes the firearms were a type required by the government, the contractors all had prior unblemished military records and no other convictions, it was a war zone where snap judgment was the difference between life and death, the contractors did not choose to be on that street corner, but were ordered there by their commander, and they did not set out that day to blow away civilians. The Court also noted that when 924(c) was last amended, the concept of private contractors protecting U.S. diplomats was not envisioned.

overkill170807“Combining all of these considerations,” the appellate court said, “we conclude the mandatory 30-year sentences create the rare case that leads to an inference of gross disproportionality… None of the penological justifications our society relies upon when sentencing criminals — incapacitation, rehabilitation, retribution, or deterrence — are properly served here by a sentence whose length is determined solely based on the type of weapon used during the crime.”

The Blackwater case has a rare set of facts, and run-of-the-mill defendants – who, for example, use a submachine gun to rob a bank – are unlikely to get much love from the holding. However, now the 8th Amendment camel’s nose is inside the tent. It will be interesting to see whether 8th Amendment claims become a staple of 924(c) defense elsewhere in the country.

United States v. Slatten, Case No. 15-3078 (D.C.Cir., Aug. 4, 2017)

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D.C. CIRCUIT SAYS FOIA RIGHTS CANNOT BE WAIVED BY PLEA AGREEMENT

The government often demands, as a price for plea agreements, that defendants waive their right to pursue Freedom of Information Act requests.

Last Friday, the D.C. Circuit outlawed the practice, holding that the FOIA waiver is unconnected to any “legitimate criminal justice interest” and is void as a matter of public policy.

foia160930The Court said a “prosecutor is permitted to consider only legitimate criminal justice concerns in striking a plea bargain—concerns such as rehabilitation, allocation of criminal justice resources, the strength of the evidence against the defendant, and the extent of a defendant’s cooperation with the authorities… This set of legitimate interests places boundaries on the rights that can be bargained away in plea negotiations.”

While banning FOIA suits “may occasionally promote the government’s legitimate interest in finality,” the Circuit said, “they only do so by making it more difficult for criminal defendants to uncover exculpatory information or material showing that their counsel provided ineffective assistance. That argument takes the finality interest too far. After all, a defendant can never waive his right to bring a colorable claim of ineffective assistance of counsel, even though such claims undermine finality… FOIA plays a significant role in uncovering undisclosed Brady material and evidence of ineffective assistance of counsel, and in practice has led to uncovering records relevant to ineffective-assistance-of-counsel claims, such as plea offers not communicated by defense counsel to clients.”

Price v. Dept. of Justice Attorney Office, Case No. 15-5312 (D.C.Cir., Aug. 4, 2017)

– Thomas L. Root

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Live by the Sword, Die by the Sword – Update for April 4, 2017

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

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SUPREMES SAY COURT CAN CONSIDER MANDATORY GUN SENTENCE WHEN SENTENCING ON UNDERLYING CRIME

Outside of TV cop shows, no one likes drug dealers or violent criminals waving firearms around, which is probably why no crime this side of kiddie porn is easier to demagogue than laws that slam gun-toting criminals.

gun160718Take 18 USC 924(c), which sets penalties for criminals who use, carry or possess a gun “during and in relation to” a crime of violence or drug-trafficking offense. A defendant convicted of a 924(c) offense must get a mandatory sentence of at least 5 years (with increased penalties if the perp “brandished” it or fired it, and whopping increases if, for example, it was fully automatic). What’s even more impressive, the statute raises the mandatory minimum to 25 years for the second offense. Oh yeah, and all 924(c) penalties must be consecutive to any other sentence.

Watch how the math works: On Monday, Bart Badguy robs a convenience store with a .44 Klutzman stuck in his waistband, and makes off with a bag of Doritos. Realizing later that he has nothing to dip it in, he robs another convenience store the next day, the same revolver displayed under his belt, and grabs some French onion dip. The federal sentencing guidelines set him at 63-78 months for the two robberies, and the court sentences Bart at the bottom (understanding what hunger can do to a man).

doritos170404But Paula Prosecutor is a canny lawyer, and she thus had the foresight to get Bart indicted for two 924(c) counts along with the two robberies. The first 924(c) count adds 60 months to the 63 months the district court imposed for the robberies. The second 924(c) count – arising from Bart’s going back for the dip – adds 300 months to the robberies and the first 924(c) conviction. Total sentence: 403 months (35¼ years) for chips and dip.

No one would argue against punishing crimes of violence involving guns more harshly than other offenses. Shooting legend Elmer Keith is credited with observing that one should never bring a knife to a gunfight, and the sentiment – that people carrying guns are likely to use them – undergirds 924(c).

knifegunB170404But the statute is inflexible, and the government has had its fun with it as a result. While Congress probably meant that a second 924(c) conviction – carrying a 25-year mandatory minimum – had to follow a prior 924(c) conviction, prosecutors years ago sold the Supreme Court that the statute did not say there had to be an intervening conviction. In Deal v. United States, a 1994 decision, the Supreme Court held that a drug-addled bank robber who held up six banks in a 3-month period – carrying a gun for all of them – had to get a 105-year sentence.

Yesterday, the government – which had lived by the sword – died by the sword.

The Supreme Court unanimously reversed the 8th Circuit, holding that a sentencing court may consider the length of a mandatory consecutive sentence when setting the length of an underlying sentence.

In Dean v. United States, the defendant was charged with committing two robberies with a gun. The robberies carried a guidelines sentence of 84 to 105 months. One of the two 924(c) counts carried a mandatory 5 years, and the second carried a mandatory 25 years. Both sentences had to be consecutive to the underlying sentence and each other.

So Levon Dean got to sentencing knowing that he had a minimum 360 months coming. His lawyer argued that it was more than enough, and the judge hardly needed to pile on another 84 months for the underlying offense. While the district court, the judge said he was not allowed to adjust the sentence of the underlying robbery to zero to account for the two consecutive gun sentences. Levon got 400 months.

knifegun170404The 8th Circuit agreed with the government that the underlying offense had to be sentenced as though the 924(c) counts were not there, and then the consecutive sentences had to be stacked on like pancakes. Anything else, the Justice Department argued, would thwart the will of Congress.

How convenient for the government that the will of Congress becomes a crucial consideration in Dean, while it was utterly irrelevant 24 years ago in Deal! Yesterday, however, the Supreme Court found it not so convenient, holding that while adjusting the underlying offense guidelines to zero might negate the will of Congress, that did not matter. The plain text of the statute was clear, and the plain text governs:

The Government speaks of Congress’s intent to prevent district courts from bottoming out sentences for predicate 924(c) offenses whenever they think a mandatory minimum under 924(c) is already punishment enough. But no such intent finds expression in the language of 924(c). That language simply requires any mandatory minimum under 924(c) to be imposed “in addition to” the sentence for the predicate offense, and to run consecutively to that sentence. Nothing in those requirements prevents a sentencing court from considering a mandatory minimum under 924(c) when calculating an appropriate sentence for the predicate offense.

The government argued that Congress’s intent that the underlying offense be sentenced without regard to the 924(c) count could be inferred from the statute’s silence. But in another consecutive-sentencing statute for identity theft, Congress included specific language limiting the district court’s ability to adjust the underlying sentence.

Sentencestack170404The Supremes ruled that because “Congress has shown that it knows how to direct sentencing practices in express terms,” but did not in 924(c), a sentencing court may impose a sentence on the underlying offense of one day, in order to make the overall sentence consistent with what the court considers appropriate under 18 USC 3553 (the sentencing statute). The Court said, “we ordinarily resist reading words or elements into a statute that do not appear on its face.”

Dean will go back to court for resentencing, where he will receive 30 years and a day.

Dean v. United States, Case No. 15-9260 (Apr. 3, 2017)

– Thomas L. Root

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A Trio of Significant Decisions – Update for February 27, 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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7th CIRCUIT SAYS KIDNAPPING NOT CRIME OF VIOLENCE

Antwon Jenkins was convicted of kidnapping and carrying a firearm during a crime of violence. He appealed, claiming the government had violated the plea agreement. He got 188 months for the kidnapping and another 120 months for the 18 USC 924(c) charge.

kidnap170227Before the appeal was decided, Johnson v. United States was decided by the Supreme Court, holding the residual clause of the Armed Career Criminal Act was unconstitutionally vague. Antwon amended his appeal to claim that the 924(c) conviction was void, because kidnapping could only be a crime of violence under the residual clause, making the conviction unconstitutional under Johnson.

Last Friday, the 7th Circuit agreed. It found that the first element of kidnapping – unlawfully seizing, confining, inveigling, decoying, kidnapping, abducting, or carrying away — does not necessarily require the use of force. The government argued that because the second element, holding for ransom or reward or otherwise, must be unlawful, it necessarily requires at a minimum the threat of physical force, but the Circuit disagreed. “Holding can be accomplished without physical force. For example, a perpetrator could lure his victim into a room and lock the victim inside against his or her will. This would satisfy the holding element of kidnapping under 18 USC § 1201(a) without using, threatening to use, or attempting to use physical force.”

The decision brings the 7th Circuit into harmony with other circuits that have held that similar crimes of false imprisonment and kidnapping by deception do not have physical force as an element.”

Antwon had not raised the issue in the trial court, but the 7th found that despite this, he had met the stringent FRCrimP 52(b) “plain error” standard for bringing it up for the first time on appeal. The Court said, “A 120‐month prison sentence for a nonexistent crime undermines the fairness of the judicial proceedings and cannot stand.”

United States v. Jenkins, Case No. 14-2898 (7th Cir., Feb. 24, 2017)
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WHO YOU GONNA BELIEVE?

For state prisoners who have exhausted their habeas corpus claims, 28 USC § 2254 permits filing the claims in federal court. Such cases are not easy to win, because federal courts will go with the state court’s decision unless it’s absolutely unreasonable. Even filing the cases on time is tough.

Mostly, 2254 does not affect federal prisoners, but a decision last Friday by the 11th Circuit delivers a stark message that federal inmate litigants should take to heart: if your lawyer drops your case without telling you, that’s one thing. But if he or she is just stupid – even really, really stupid – you’re bound by counsel’s mistakes.

Ernest Cadet, a Florida prisoner, was denied habeas corpus relief in state court. Under the convoluted rules that apply to 2254 motions, his one-year clock then started running for filing in federal court. It stopped with only 5 days left when he filed for review with the Florida Supreme Court.

But even an average lawyer should know how to count...
But even an average lawyer should know how to count…

While his Supreme Court petition was pending, Ernie hired Attorney Goodman, a guy who may have been a “good man” but was a lousy attorney. When the Supreme Court turned Ernie’s motion down, the inmate told Goodman they didn’t have much time to file a 2254. He said inmates in the law library warned him that he had to act fast. Goodwin replied he had read the statute, and Ernie had a full year, asking “who are you going to believe, the real lawyer or the jailhouse lawyer?”

The correct answer was “the jailhouse lawyer.” Goodwin filed the motion within the time he thought Ernie had, but it really about a year late. The federal district court threw out the petition as untimely. Ernie appealed.

The 11th Circuit upheld the dismissal. Inmates love to talk about “equitable tolling” as an end run around statutory deadlines, but the plain fact, the Circuit said, is that equitable tolling is an extraordinary remedy “limited to rare and exceptional circumstances and typically applied sparingly.” To warrant equitable tolling, a prisoner has to show he has been pursuing his rights diligently but that some extraordinary circumstance prevented timely filing.

lawyermistake170227The Court said attorney miscalculation of a filing deadline “is simply not sufficient to warrant equitable tolling, particularly in the post-conviction context where prisoners have no constitutional right to counsel.” The relevant distinction should be between attorney negligence – which is “constructively attributable to the client” – and “attorney misconduct that is not constructively attributable” to the client because counsel has abandoned the prisoner. A lawyer’s “near-total failure to communicate with petitioner or to respond to petitioner’s many inquiries and requests over a period of several years” might be abandonment. “Common sense,” Justice Alito concluded in a prior Supreme Court case, “dictates that a litigant cannot be held constructively responsible for the conduct of an attorney who is not operating as his agent in any meaningful sense of that word.”

The problem in this case is that Goodman never abandoned Ernie. He kept communicating, but arrogantly dismissed the possibility Ernie and his jailhouse lawyer friends might be right without doing as much as five minutes’ worth of research to see whether they might be.

Ernie “acted with reasonable diligence,” the Court said, “but the reasonable diligence and extraordinary circumstance requirements are not blended factors; they are separate elements, both of which must be met before there can be any equitable tolling.” Just because an agent (the lawyer) is grossly negligent does not mean he had abandoned his principal (the client).

Goodman was stupid, but he did not disappear on Ernie. The 11th held that “because the attorney is the prisoner’s agent, and under well-settled principles of agency law, the principal bears the risk of negligent conduct on the part of his agent… as a result, when a petitioner’s post-conviction attorney misses a filing deadline, the petitioner is bound by the oversight.

Cadet v. State of Florida DOC, Case No. 12-14518 (11th Cir., Feb. 24, 2017)
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CAN YOU HEAR ME NOW?

In a remarkable decision handed down by the 4th Circuit last Thursday, a deaf inmate’s claim that the BOP violated his 8th Amendment and 1st Amendment rights by denying him a sign-language interpreter and videophone link.

hearme170227The inmate complained that he was denied an interpreter to assist at medical appointments, and to enable him to take a class required because of the nature of his offense. He also said communications with the outside was limited to an antiquated TTY phone device, which he could only use when a BOP staff person trained in TTY was available to supervise. Often, he said, he was denied TTY access because of staff shortages or just because of arbitrary reasons, and he could never use the TTY on nights or weekends.

The Circuit reversed a district court decision that threw out all of the claims, saying the inmate did not have to show he had been harmed by the 8th Amendment deliberate indifference, just that there was a substantial risk of harm. As for the 1st Amendment claim, the Court swept away BOP claims of the security risks of a videophone, holding that the Bureau could easily monitor videophone calls just as it did TTY calls.

The BOP tried to derail the case by promising to provide interpreters in the future, stating that inmates would be provided “with a qualified interpreter… if necessary for effective communication during religious ceremonies or programs.” That was good enough for the district court, but the 4th swept the promises aside: “It is well established that a defendant’s voluntary cessation of a challenged practice moots an action only if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur,” the Court said. “Even if we ignore the equivocation inherent in the promise to provide interpreters ‘if necessary’ the statement amounts to little more than a ‘bald assertion’ of future compliance, which is insufficient to meet BOP’s burden.”

Heyer v. Bureau of Prisons, Case No. 15-6826 (4th Cir., Feb. 23, 2017)

– Thomas L. Root

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