Tag Archives: career offender

The Short Rocket – Update for January 27, 2023

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rocket190620We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

Today, the short rocket – decisions from around the federal circuits…

SOME CASE SHORTS

Timing is Everything: In 2015, Benny Hall pled guilty to conspiracy to commit Hobbs Act robbery and using a gun in a crime of violence, (an 18 U.S.C. § 924(c) offense). After the Supreme Court decided in United States v. Davis that conspiracy to commit a crime of violence was not itself a crime of violence that supported a § 924(c) conviction for using a gun in a crime of violence, Benny filed a 28 U.S.C. §2255 post-conviction motion asking that the § 924(c) be thrown out.

corso170112The government convinced the district court that Benny’s § 924(c) conviction didn’t depend only on the conspiracy, but also on his admissions in open court that established that he had actually attempted to commit the robbery.

‘Gotcha!’ the government cried.

‘Not so fast!’ the 2nd Circuit replied last week. Last summer, the  Supreme Court ruled in United States v. Taylor that an attempted Hobbs Act robbery is not a crime of violence. The Circuit threw out § 924(c) conviction and the mandatory 10-year add-on sentence it represented.

Hall v. United States, Case No 17-1513, 2023 U.S.App. LEXIS 1256 (2d Cir., January 19, 2023)
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11th Holds Drug Conspiracy Can’t Lead to Guidelines ‘Career Offender’: Brandon Dupree was convicted of a 21 U.S.C. § 846 drug conspiracy, and was hammered at sentencing as a Guidelines “career offender” (which dramatically increased the advisory sentencing range). An 11th Circuit panel rejected Brandon’s argument that an inchoate offense (that is, a mere plan to commit a crime) does not qualify as a “controlled substance offense” for purposes of the Guidelines ‘career offender’ enhancement.

brandon230127Last week, the full Circuit sitting en banc said, ‘Let’s go, Brandon,’ and reversed his ‘career offender’ sentence. The 11th ruled that “application of the enhancement turns on whether the ‘instant offense of conviction’ is ‘a controlled substance offense’ [under USSG] 4B1.1(a)… The plain text of 4B1.2(b) unambiguously excludes inchoate crimes. Dupree must be resentenced without application of the career offender enhancement.”

United States v. Dupree, Case No 19-13776, 2023 U.S.App. LEXIS 1183 (11th Cir., January 18, 2023)
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Channeling Your Inner Habeas: People are always asking why they can’t point out in their 18 U.S.C. § 3582(c)(1)(A) compassionate release motions that their sentences were wrongly calculated, that their lawyers were ineffective imbeciles, that something was very wrong with how they were convicted.

reallawyer170216Mike Escajeda was convicted of selling drugs and carrying a gun. After losing his direct appeal, Mike filed a compassionate release motion, arguing that the “extraordinary and compelling reasons” required by an 18 U.S.C. § 3582(c)(1)(A) compassionate release motion were that (1) his sentence exceeded the statutory maximum and (2) he received ineffective assistance of counsel. He even admitted in his motion that he had filed for compassionate release because he figured that he could not win relief under § 2255.

Last week, the 5th Circuit ruled that the habeas-channeling rule prevented Mike from raising 2255-type issues in a compassionate release motion. The Circuit said, “Congress provided specific avenues for post-conviction relief that permit prisoners to challenge the legality of their confinement in federal court… The Supreme Court has repeatedly held that by codifying these specific provisions, Congress required prisoners to bring their legality-of-custody challenges under [28 USC 2241, 2244, 2254, and 2255], and prohibited prisoners from bringing such claims under other, more-general statutes like 42 U.S.C. § 1983.

[A] prisoner cannot use § 3582(c) to challenge the legality or the duration of his sentence,” the 5th held. “Such arguments can, and hence must, be raised under [the habeas statutes]… Because Escajeda’s claims would have been cognizable under § 2255, they are not cognizable under § 3582(c).”

United States v. Escajeda, Case No 21-50870, 2023 U.S.App. LEXIS 1041 (5th Cir., January 17, 2023)
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DOJ SORNA Rule Blocked: The U.S. District Court for Central District of California last week issued a preliminary injunction blocking the Dept of Justice’s new Sex Offender Registration and Notification Act rule because it violated due process and the 1st Amendment.

injunction230127The rule requires people who had been convicted of a sex crime to register as sex offenders in their state, even if the sex crime convictions have been expunged and the people are not allowed by the state to register. Because plaintiff John Doe could not register, the DOJ’s rule said that he could be prosecuted at any time, and he would have been forced to prove that registration was impossible — “an affirmative defense,” Doe’s lawyer said, “that turns the presumption of innocence on its head.

The court ruled that it was likely an unconstitutional violation of due process to require anyone to affirmatively prove his innocence when he had never been convicted.

Preliminary injunction, ECF 55, Doe v. DOJ, Case No 5:22-cv-855 (CD Cal., Jan 13, 2023)

Reason, A Federal Judge Says the DOJ’s Sex Offender Registration Rules Violate Due Process by Requiring the Impossible (January 19, 2023)

– Thomas L. Root

Sentencing Commission Rolls Up Its Sleeves – Update for November 3, 2022

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

USSC SETS GUIDELINE AMENDMENT PRIORITIES

The U.S. Sentencing Commission held its first meeting in 46 months last Friday, voting in a 20-minute session to adopt priorities for the Guidelines amendment cycle that ends Nov 1, 2023.

USSC170511The USSC lost its quorum due to term expirations of multiple members in December 2018, just as the First Step Act was signed into law. That meant the commission was unable to revise the Guidelines just as First Step changes required modifications that would have prevented conflicting judicial interpretations, especially in the application of 18 USC § 3582(c)(1)(A) sentence reduction motions, commonly called “compassionate release” motions.

The compassionate release statute requires judges to consult USSG § 1B1.13, Guidelines policy on granting compassionate releases, but § 1B1.13 was written for a time when only the Bureau of Prisons could bring compassionate release motions. Most but not all Circuits have ruled that § 1B1.13 is not binding on district courts until it is amended, but the 11th has ruled that it is binding, the 8th has studiously avoided deciding the question, and others – such as the  3rd, 6th and 7th – have held that district judges cannot consider First Step Act changes in sentencing law that would result in much lower sentences when deciding compassionate release motions.

U.S. District Judge Carlton Reeves (S.D. Mississippi), chairman of the Commission, said implementing the First Step Act through revisions to the federal sentencing guidelines would be the USSC’s “top focus.”

Other changes in the Guidelines, such as to the drug tables, could result from First Step’s lowering of drug mandatory minimums.

responsibility221103Additional priorities for the coming year include resolving circuit conflicts over whether the government may withhold a motion for a third acceptance-of-responsibility point just because a defendant moved to suppress evidence before pleading guilty and whether an offense must involve a substance actually controlled by the Controlled Substances Act to qualify as a “controlled substance offense,”

The USSC will also consider amendments to the Guidelines career offender chapter that would provide an alternative to the “categorical approach” in determining whether an offense is a “crime of violence” or a “controlled substance offense.

First Step also made changes to the “safety valve,” which relieves certain drug trafficking offenders from statutory mandatory minimum penalties, by expanding eligibility to some defendants with more than one criminal history point. A USSC press release says the Commission “intends to issue amendments to § 5C1.2 to recognize the revised statutory criteria and consider changes to the 2-level reduction in the drug trafficking guideline currently tied to the statutory safety valve.”

marijuana220412The only addition to the Commission’s previously-published list of proposed priorities that came out of the meeting was consideration of possible amendments on whether, and to what extent, people’s criminal history for marijuana possession can be used against them in sentencing.

The cannabis item was added and adopted after President Joe Biden issued a mass marijuana pardon proclamation.

The Commission’s priorities only guide what it will be working on for the Nov 2023 amendment cycle. Expect amendment proposals by late January, followed by a public comment period, and final amendments by May 1. After that, the Senate has 6 months to reject any of the amendments (a very rare occurrence). Amendments not rejected will become effective Nov 1, 2023.

Reuters, Newly-reconstituted U.S. sentencing panel finalizes reform priorities (October 28, 2022)

US Sentencing Commission, Final Priorities for Amendment Cycle (October 5, 2022)

US Sentencing Commission, Commission Sets Policy Priorities (October 28, 2022)

Marijuana Moment, Federal Commission Considers Changes To How Past Marijuana Convictions Can Affect Sentencing For New Crimes (October 28, 2022)

– Thomas L. Root

“What Is It Exactly That You Want?” Courts Ask Defendants – Update for August 3, 2021

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

FUTILITY

futility180705Two decisions last week should serve as cautionary tales for people seeking a sentence break from the courts, without really being able to explain to the courts why they are seeking the break they want.

In the 7th Circuit, Mike Millis filed a 28 USC § 2241 petition for writ of habeas corpus, arguing that his career-offender Guidelines enhancement (USSG § 4B1.1) should not have been applied in his case. As a result of his 1994 crime spree, Mike was convicted of several robbery counts, which included two 18 USC § 924(c) counts for using a gun. The § 924(c) counts, of course, were stacked. When the dust settled, Mike’s sentencing range began at 562 months.

That was too much for his judge, who departed downward to a still-shocking 410 months.

In the intervening 26 years, Mike filed and lost a 28 USC § 2255 motion in his Eastern District of Kentucky home. But well after that, the 6th Circuit held in a different case that one of the prior convictions relied on to make Mike a Guidelines career offender – an Ohio aggravated assault conviction – could not be used as a basis for career offender. Because the change in the law did not open the door to a new § 2255 motion. But Mike relied on the § 2255(e) “saving clause,” which lets prisoners use a § 2241 motion where the § 2255 would be “inadequate or ineffective to test the legality of his detention.”

Last week, the 7th Circuit shot him down. One of the standards for being able to use the 28 USC § 2255(e) saving clause, the Circuit said, is that the prior conviction or sentence has to constitute a miscarriage of justice. Here, Mike’s sentence range had started at 567 months. But if he had not been a career offender, the Circuit said, his 410-month sentence would still have fallen within what his non-career sentencing range would have been.

miscarriage-of-justiceBecause of that, the sentence – although the career offender status was wrong – was not a miscarriage of justice. This made the § 2255(e) saving clause unavailable to Mike.

So what was Mike’s point? I am guessing that he was looking to get rid of the career-offender label, because he is or will soon seek to get his second § 924(c) conviction cut from 300 months to 60 months, which is all he could have gotten under the law since passage of the First Step Act made clear that the 300-month mandatory sentence only applies after a prior conviction for a § 924(c) offense. Knocking 240 months off his sentence would let Mike out after having only served 260-some months (21 years) in prison.

Talk about soft on crime!

Meanwhile, over in the 8th Circuit, Brett Corrigan got a mandatory-minimum sentence of 60 months in prison, based on quantity of drugs involved in his case. At sentencing, his district court gave him a 2-level enhancement under USSG § 2D1.1(b)(1) for possessing a dangerous weapon, which gave him an advisory sentencing range of 60 to 71 months in prison. The judge gave him 60 months, the bottom of the range, (which, incidentally, was his mandatory minimum sentence).

softoncrime190307That did not stop Brett, who appealed the 2-level enhancement to the Court of Appeals. Last week the 8th Circuit denied him any relief. “Nothing we do here will affect Corrigan’s sentence, meaning that we lack the ability to provide any effectual relief.,” the Circuit said. “Win or lose, it makes no difference—his sentence will remain 60 months because of the mandatory minimum. In jurisdictional terms, Corrigan lacks a cognizable interest in the outcome, which means that there is no longer a live case or controversy under Article III.”

So why bother appealing? I suspect what Brett was fighting for was to get the 2-level gun enhancement lifted, because the enhancement made him ineligible to take the Bureau of Prison’s Residential Drug Abuse Program. The RDAP would entitle him to another 12 months off his sentence under 18 USC § 3621(e)(2)(B), meaning that Brett very much had something at stake here. It’s just that the courts generally seem not to appreciate the adverse effects that enhancements like that – which often get added on the flimsiest of evidence – have on a defendant’s prison term.

Millis v. Segal, Case No. 20-1520, 2021 U.S. App. LEXIS 22349 (7th Cir., July 28, 2021)

United States v. Corrigan, Case No. 20-1682, 2021 U.S. App. LEXIS 22166 (8th Cir., July 27, 2021)

– Thomas L. Root

For The Want of a Nail… – Update for December 15, 2020

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

COMPASSIONATE RELEASE AIN’T JUST ANOTHER 2255

career160509Stephen Fine pled guilty in 2014 to a methamphetamine distribution conspiracy (21 USC § 846) and money laundering (18 USC § 1956). At sentencing, the district court found Steve was a Guidelines career offender (USSG § 4B1.1) based on two prior state drug convictions.

As regular readers know, being christened a “career offender” exposes a defendant to dramatically higher Guidelines sentencing ranges.

After conviction, Steve attacked his conviction in a 28 USC § 2255 habeas corpus action, alleging his lawyer had been ineffective. The motion failed. Then in July 2019, Steve filed an 18 USC § 3582(c)(1)(A)(i) sentence reduction motion, asking the court for what is generally known as “compassionate release.”

kleenix201215A momentary frolic into grammar and language: The statute calls the action of a court modifying a sentence in response to a proper motion under § 3582(c) as a “sentence reduction.” Originally, the § 3582(c)(1)(A) motion could only be brought on a prisoner’s behalf by the Bureau of Prisons, something that happened seldom enough to make a Blue Moon seem commonplace by comparison. Nevertheless, the BOP started referring to the motion it alone was authorized to bring as “compassionate release,” and the term – like a brandnomer – stuck. Think “tissue” (sentence reduction) versus “Kleenex” (compassionate release).

A § 3582(c)(1)(A)(i) compassionate release motion must show “extraordinary and compelling reasons” for a sentence reduction. Steve’s extraordinary and compelling reasons were (1) his “post-sentencing rehabilitation” and (2) that he was actually innocent of his sentence, because court decisions since his sentencing had held that the state convictions his judge relied on in declaring him a career offender should not have been counted in that calculus.

His district court turned down the compassionate release motion. Last week, the 8th Circuit agreed.

rehabilitation201215Citing Guideline § 1B1.13 (which, by the way, the 2nd, 4th, 6th and 7th have held does not apply to an inmate-filed compassionate release motion), the 8th Circuit held that rehabilitation alone was not a proper basis for a sentence reduction motion. As for Steve’s claim that he was not properly a career offender – his other extraordinary and compelling reason – the Court noted that his “challenge to the career offender determination was still a challenge to his sentence. A federal inmate generally must challenge a sentence through a § 2255 motion, and a post-judgment motion that fits the description of a motion to vacate, set aside, or correct a sentence should be treated as a § 2255 motion… Even an intervening change in the law does not take a motion outside the realm of § 2255 when it seeks to set aside a sentence… The district court was therefore correct that his challenge to the career offender determination and resulting sentence was an unauthorized successive motion to vacate, set aside, or correct a sentence.”

In a compassionate release motion, a defendant who has established an extraordinary and compelling reason must also show that grant of the motion would be reasonably consistent with the sentencing factors set out in 18 USC § 3553(a). That was where Steve’s sentence argument would have fit. Had he suggested that a sentence reduction would have been consistent with § 3553(a) factors, because the correct punishment – and thus, the punishment society suggests would be adequate but not too great – was really a lot less than what he got.

nail201215Of course, Steve still would have lost, because he was missing an “extraordinary and compelling reason.” Without one of those, none of the rest of § 3582(c)(1)(A)(i) matters at all. For the want of a nail…

United States v. Fine, Case No 19-3485, 2020 U.S. App. LEXIS 38786 (8th Cir Dec 11, 2020)

– Thomas L. Root

1st Circuit Gives Pre-Booker Career Offenders Some Relief– Update for October 5, 2020

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

NO DEFENDANT LEFT BEHIND

vagueness160110The 2015 Supreme Court decision Johnson v. United States was a landmark, holding that the residual clause in the Armed Career Criminal Act’s definition of “crime of violence” was unconstitutionally vague. Johnson’s reasoning led to Sessions v. Dimaya (extending Johnson to the criminal code’s general definition of “crime of violence” at 18 USC § 16(b)) and 2019’s United States v. Davis holding extending Johnson to 18 USC § 924(c), the “use or carry a firearm” statute.

But thousands of inmates who were held to be Guidelines “career offenders” because of prior crimes of violence got no relief. A Guidelines “career offender” is very different from an ACCA armed career criminal. A Guidelines career offender is someone with two prior crimes of violence or serious drug convictions (federal or state). If a defendant qualifies as a Guidelines career offender, he or she will be deemed to have the highest possible criminal history score and a Guidelines offense level that ensures a whopping sentencing range.

After Johnson, a number of Guidelines career offenders, whose status had been fixed by including some dubious prior convictions as “violent,” sought the same kind of relief that Johnson afforded armed career criminals. But in 2017 the Supremes said that Johnson did not apply to the Guidelines. Beckles v. United States held that the Guidelines were not subject to the same kind of “vagueness” challenge that worked in Johnson, because the Guidelines did not “fix the permissible range of sentences, but merely guided the exercise of discretion in choosing a sentence within the statutory range.”

This may have been so for people sentenced under the advisory Guidelines. However, back before the 2005 Supreme Court decision in United States v. Booker, those “advisory” Guidelines were mandatory. They did not guide a judge’s discretion. Instead, the law required a judge to sentence within the applicable Guidelines sentencing range except in very narrow circumstances, and then only if the sentencing court jumped through the many hoops the Guidelines erected.

Robber160229So, how about guys like Tony Shea, who was sentenced after a bank robbery spree as a career offender back in 1998? Tony’s prior crimes of violence were pretty shaky bases for a career offender enhancement (not that Tony didn’t have plenty of problems for his string of armed robberies, but that’s another story). Tony was looking at minimum 430 months under normal Guidelines, nothing to sneeze at, but with the career offender label, Tony’s minimum sentence shot that up to 567 months (that’s 47-plus years, or 330 dog years).

Tony filed a § 2255 motion arguing that because his Guidelines career offender sentence was mandatory, not “advisory,” the Johnson holding should apply to wipe out his career offender status.

Last Monday, the 1st Circuit agreed. The appeals court noted that while Beckles was right that advisory Guidelines guide a judge’s discretion rather than “fix the permissible range of sentences,” the pre-Booker Guidelines did much more than this. The Circuit said “when the pre-Booker Guidelines ‘bound the judge to impose a sentence within’ a prescribed range, as they ordinarily did, they necessarily “fixed the permissible range of sentences” she could impose.”

Judicial despotism... probably not a good thing.
         Judicial despotism… probably not a good thing.

“It’s easy,” the 1st said “to see why vague laws that fix sentences… violate the Due Process Clause. The… rule applied in Booker serves two main functions. First, fair notice: requiring the indictment to allege ‘every fact which is legally essential to the punishment to be inflicted… enables the defendant to determine the species of offence with which he is charged in order that he may prepare his defense accordingly…” Second, “the rule also guards against the threat of ‘judicial despotism’ that could arise from ‘arbitrary punishments upon arbitrary convictions,’ by requiring the jury to find each fact the law makes essential to his punishment.”

Only the 11th Circuit has explicitly held that Beckles does not apply to mandatory Guidelines career offender enhancements. The 5th, 8th and 10th Circuits are on the fence. This 1st Circuit decision is the first to emphatically apply Johnson to give relief to people like Tony, who is already well into his third decade of imprisonment.

Shea v. United States, 2020 U.S. App. LEXIS 30776 (1st Cir., September 28, 2020)

– Thomas L. Root

Havis: the 6th Circuit Gift That Keeps on Giving – Update for September 9, 2020

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

HAVIS MEANS CONSPIRACY DOESN’T COUNT FOR CAREER OFFENDER, EITHER

You remember United States v. Havis, the 2019 en banc decision in which the 6th Circuit held that the Guidelines’ definition of ‘controlled substance offense’ did not include attempt crimes, meaning that a defendant’s prior conviction for attempted drug distribution could not be counted to make him a career criminal. (If you don’t recall it, refresh yourself here).

snakes200909Eddie Valesquez made a deal over the phone with a buddy of his to kill a troublesome witness. (Note: Contrary to popular culture’s suggestions to the contrary, murdering a witness is both illegal and a bad idea). In fact, Eddie found out that the mere planning such a murder problematical: he was convicted of an 18 USC § 1958 conspiracy to commit murder for hire.

Eddie’s prior drug conspiracy conviction was used at sentencing to make him a career offender under the Sentencing Guidelines, which raised his sentencing range to stratospheric heights, resulting in a 262-month term in prison.

Last week, the 6th Circuit reversed the sentence. It ruled that “although the specific facts of Havis involved an attempt crime, its reasoning applies with equal force to other inchoate crimes not listed in the text of § 4B1.2(b). Accordingly, we have acknowledged that, in light of Havis, conspiracy to distribute controlled substances is not a “controlled substances offense” under § 4B1.2(b).”

United States v. Cordero, Case No. 19-3543, 2020 U.S. App. LEXIS 28128 (6th Cir. Sep 3, 2020)

– Thomas L. Root

Mistakes Were Made… and Tough Luck to You, Ezralee – Update for June 26, 2020

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

9TH CIRCUIT SAYS COURTS MUST KEEP THE OLD ERRORS IN FSA RESENTENCING

You’d think that if a court had a chance to fix an old mistake when it resentenced someone, the judge would welcome the opportunity to do it right. You would be wrong.

mistake170417Ezralee Kelley was sentenced in 2006 on a crack distribution charge, with a sentencing range of 262-327 months due to her being a Guidelines “career offender.” After the First Step Act made the 2010 Fair Sentencing Act (FSA) retroactive, she filed for a reduced sentence.

A word about “career offenders”: Back many, many years ago, I was in the Air Force. It being the dawn of the recreational drug era, we all had to fill out a questionnaire about our drug use (or abstinence). Being smart airmen (no women in our unit back then), we all knew how much the brass would appreciate our candor, so we lied like a president on Twitter.

What struck me about the questionnaire was its categories. If you admitted to a single dalliance with controlled substances, you were classified as an “experimenter.” If you admitted to two or more uses of controlled substances, you were a “chronic abuser.” While how many drug abuse events were necessary to rank one as a “chronic abuser,” we were all pretty sure that number was a lot larger than two. Nevertheless, the categories were useful, because it informed us of the Air Force’s view of drug abuse. If we were to admit to “getting high,” we had better be talking about flying an airplane.

USAF200626Chapter 4B of the Guidelines is like that. If you have two prior convictions for a drug trafficking offense or crime of violence, or a mix, the Guidelines calls you a “career offender.” Under the Guidelines, a career offender’s offense level automatically shoots into low earth orbit (usually a 37) and your criminal history is deemed to be Category VI (which is the max).  If you sold me 50 lbs of pot, and you had two prior pot-selling convictions – federal or state – you could easily have a Criminal History score of II and a Guidelines Level of 12 (USSG. § 2D1.1(c)(12) for you technical folks). Your sentencing range would be 24-30 months, a veritable vacation.

But because of your two prior state felony convictions  – even if you only got probation for those – you would be a Guidelines career offender. Your offense level would shoot up to a 32 and your Criminal History category to VI. Your sentencing range would be 210-262 months (that’s 17.5 years to almost 22 years).

Like the Air Force “chronic abuser,” your two prior flirtations with the law (even if they were 14 years before), just turned two years in a federal prison camp into almost two decades in a place with guards with guns and razor wire.

(The foregoing is a mere illustration: you could not sell me 50 lbs of marijuana, because I have never, never even once used the stuff. Just check my Air Force questionnaire response if you doubt me.)

In today’s case, Ezralee’s youthful indiscretions had netted her two prior Washington state convictions for drugs. When she got a federal crack distribution case, she was “careered out,” as they say, and got a fearsomely long sentence. But when First Step made her eligible for an FSA reduction, she hoped to hit a home run.

bettethanezra200626A few years ago, the 9th Circuit had ruled that the some of Ezralee’s Washington state convictions used back in 2006 to make her a career offender do not count toward career offender. As a result, Ezralee said, she should be resentenced without the career status, which should drop her from 262-327 to a 51-month range.

The district court ruled that, mistake or not, it could not reconsider on an FSA resentencing whether she was a career offender.

neverhappened200626Last week, the 9th Circuit agreed. The Circuit explained that First Step permits the court to sentence as if parts of the FSA had been in place at the time the offense occurred, not as if every subsequent change in the law benefitting the defendant had occurred. In an FSA resentencing, the 9th said, the district court has to apply the laws that existed when the defendant’s crack offese was committed, only adding the FSA’s statutory reductions.

Thus, Ezralee’s new sentence assumed only that the FSA was in existence, resulting in a recalculated Guidelines range of 188 to 255 months. The Court gave her 180 months at resentencing.

United States v. Kelley, 2020 US App LEXIS 18834 (9th Cir Jun 15, 2020)

– Thomas L. Root

Virus or No, The World Keeps Turning on Hobbs Act and FSA – Update for March 31, 2020

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

MEANWHILE, A COUPLE OF IMPORTANT FAIR SENTENCING ACT/HOBBS ACT CASES…

Two appellate cases handed down last week would have been headliners any other time except for now, with the coronavirus crowding everything else out of the news.

crackpowder160606In 2001, Brandon Gravatt was convicted of conspiracy to possess with intent to distribute 5 kilograms or more of powder cocaine and 50 grams or more of crack cocaine (21 USC § 846). He pled guilty to the dual-object drug conspiracy charge, facing sentences of 10 years-to-life for the coke and 10-to-life for the crack. The court sentenced him to just short of 22 years.

After the Fair Sentencing Act became retroactive due to the  provision at Section 404 of the First Step Act (passed in December 2018), Brandon filed for a sentence reduction because the crack statutory minimum had fallen to five years. But the District Court denied his motion, because the 10-to-life sentence for the powder cocaine remained the same.

Last week, in a decision awaited by a lot of people, the 4th Circuit reversed. It held that even in a multi-object conspiracy like Brandon’s – where the penalties of one object (possession of crack) were reduced by the FSA while the penalties of the other (powder cocaine) were not – if the crack minimum sentence fell, Brandon was eligible for resentencing. The Circuit said because Brandon’s “sentence involved a covered offense under Section 404(a) [of the First Step Act], the district court should have reviewed Gravatt’s motion on the merits, applying its discretion under Sections 404(b) and (c).”

Of course, the 4th said, the quantity of powder cocaine in Gravatt’s case could mean the district court would decide not to lower his sentence. “Our decision today,” the Circuit said, “only requires that Gravatt’s sentence receive a substantive review. It should not be construed as expressing any view on how the district court should rule.”

Meanwhile, the 11th Circuit held last week that a Hobbs Act robbery was not a crime of violence for purposes of determining whether a defendant was a “career offender” under Chapter 4B of the Guidelines.

violence151213Joining the 6th and 9th Circuits, the 11th held that because the Guidelines definition of robbery and extortion only extends to physical force against persons, while under Hobbs Act robbery and extortion, the force can be employed or threatened against property as well, the Hobbs Act (18 USC § 1951) is broader than the Guidelines definition, and thus cannot be a crime of violence for career offender purposes.

Unfortunately, because 18 USC § 924(c) does include threats to property as well as to people, the 11th Circuit holding does not apply to defendants with § 924(c) counts supported by Hobbs Act convictions.

United States v. Gravatt, 2020 U.S. App. LEXIS 9053 (4th Cir Mar 23, 2020)

United States v. Eason, 2020 U.S. App. LEXIS 9096 (11th Cir Mar 24, 2020)

– Thomas L. Root

Guidelines Career Offenders Out of Luck on 2255s – Update for September 9, 2019

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

6th CIRCUIT SAYS GUIDELINES CAREER OFFENDERS WANTING HAVIS OR DAVIS ADJUSTMENTS ARE OUT OF LUCK

toughluck180419Dwight Bullard pleaded guilty to distributing heroin and being a felon in possession of a firearm. At sentencing, the district court determined that he qualified as a career offender under the Sentencing Guidelines, a provision that sets sentencing ranges stratospherically high for people convicted of two prior drug crimes or crimes of violence.

One of Dwight’s prior drug offenses was for attempted to sell drugs. After the 6th Circuit’s decision in United States v. Havis, which held that attempted drug crimes did not qualify a predicate offense for Guidelines career offender status, Ballard challenged his own Guidelines career offender status in a post-conviction motion under 28 USC § 2255.

The difference between being a career offender and not being a career offender is huge, sometimes the difference between under five years and nearly 20 years in prison. The sentencing ranges are advisory, of course – courts are not obligated to follow them, but do over half of the time – but nevertheless the sentencing ranges are very influential.

The district court denied his 2255 motion, so Dwight appealed.

On appeal, the government admitted that Dwight was right, because Havis held the Guidelines definition of a controlled substance offense does not include attempt crimes. The 6th Circuit agreed that if Dwight received his sentence today, he would not be a Guidelines career offender.

lawyermistake170227But a non-constitutional challenge to an advisory guidelines range may not be raised in a post-conviction motion such as a 2255. Ballard tried to get around that problem by claiming that his trial and appeals attorneys were ineffective, because they did not raise the argument that ultimately won in Havis. Ineffective of counsel is a Sixth Amendment claim, and thus a constitutional issue.

Nevertheless, the 6th Circuit upheld dismissal of Dwight’s 2255. While his claim was cognizable under 2255, the Court said, Dwight could not show that his attorneys were ineffective for not raising the issue, and even if they had been, he had suffered no prejudice.

lovelawyerB170811Before Havis, there was no case precedent in the Circuit that would have held Dwight’s Arizona prior not to be a controlled substance offense. That being the case, the Circuit held, it was entirely reasonable for Dwight’s trial counsel not to object that the prior was used to make Dwight a career offender. As it is, his trial attorney argued at sentencing that Dwight was not “an authentic career offender,” and thus got him sentenced 152 months under his minimum Guidelines.

Even if Dwight’s lawyer should have raised the same argument that later won in Havis, the 6th Circuit held, the district court outcome would not have been different. This is because under the case law at the time, the district court would have counted the Arizona conviction toward career offender status even if Dwight’s lawyer had objected.

In so many words, the 6th Circuit says people who received career offender sentences because of what courts now recognize as a mistake, people who would never qualify for such a status today because of Havis or Davis, are simply out of luck.

Bullard v. United States, 2019 U.S. App. LEXIS 26643 (6th Cir. Sept. 4, 2019)

– Thomas L. Root

F.R.Crim.P. 36: There’s Life in the Old Carcass – Update for July 2, 2019

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

MAYBE RULE 36 IS NOT TOOTHLESS AFTER ALL

Everyone knows that Rule 36 of the Federal Rules of Criminal Procedure permits a defendant to move to correct a clerical error in the criminal case judgment. Over the years, I have found it useful mainly to correct mistakes in the defendant’s name, which invariably become part of the BOP record. Beyond that, we all are aware that Rule 36 cannot correct mistakes of fact or law, and for sure cannot lead to a reduced sentencing.

error161101Last week, the 4th Circuit suggested that maybe we have it wrong. Lamont Vanderhorst’s district court denied his Rule 36 motion to correct a clerical error in his Presentence Report. The PSR characterized one of his state convictions as “conspiracy to sell and deliver cocaine.” In fact, the conviction was “conspiracy to traffick [sic] cocaine by transportation.”

As a result of the clerical error, the district court wrongly sentenced Lamont as a career offender.

The district court denied the motion, holding that Rule 36 cannot serve as a means of pursuing resentencing. The Circuit disagreed, holding that “Rule 36 may serve as an appropriate vehicle for a defendant to obtain resentencing when a clerical error likely resulted in the imposition of a longer sentence than would have been imposed absent the error.” The 4th said that “when an error is purely a ‘clerical error in a judgment, order, or other part of the record, “the policy of finality is trumped and a court is authorized to correct the error at any time.”

Unfortunately, Lamont had four other priors that supported his career offender designation, so he was denied relief anyway. But the principle makes Rule 36 potentially a powerful gadget in the collateral-relief toolbox.

United States v. Vanderhorst, 2019 U.S. App. LEXIS 18886 (4th Cir. June 25, 2019)

– Thomas L. Root