Tag Archives: retroactivity

Smarter Sentencing Act: Just Like Before, But With More Sponsors – Update for October 17, 2017

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


deja171017We were a bit befuddled when Sen. Mike Lee (R-Utah) announced by press release on October 5, 2017, that he and Sen. Richard Durbin (D-Illinois) had “reintroduced the Smarter Sentencing Act of 2017.” It was not clear whether this was a complete retread of the Smarter Sentencing Act of 2015, S. 502, that died without a vote last December, or whether it was new and improved (or just different).

The confusion was compounded because we were unable to locate a draft of the Smarter Sentencing Act of 2017 anywhere over the next 10 days. We called Sen. Lee’s office last week for a copy of the measure, and received our copy yesterday.

Yes, indeedy, the 2017 version of the bill is identical to old S.502, except for a boatload more sponsors (21 from both sides of the aisle). Highlights of the measure include

• expanding the “safety valve” contained in 18 USC 3553(f) – which permits court to relieve low-level drug offenders with relatively clean records to avoid mandatory minimum sentences under some circumstances – to include people with slightly more criminal history.

Currently, a single misdemeanor in one’s background can disqualify the defendant from “safety valve” consideration. Under the proposed change, a couple of felonies will be too much, but more young defendants facing their first serious criminal charge would be sentenced under a scheme that let the judge weigh individual factors rather than applying an inflexible and harsh minimum sentence.

• making the Fair Sentencing Act of 2010, which reduced disparity between crack cocaine and powder cocaine from 100:1 to 18:1, retroactive.

cracksentence171017In the wake of basketball star Len Bias’ death in 1988, Congress passed the draconian Anti Drug Abuse Act, which equated one gram of crack cocaine to 100 grams of cocaine powder. As a result, drug sentences – which are driven by the amount of drug involved in the crime – soared. The defendants in crack cases were overwhelmingly black.

After years of urging by the Sentencing Commission and studies showing that Congress’ rationale for the ADA – that crack was more addictive and crack offenses more violent – was bunkum, Congress passed the Fair Sentencing Act in 2010. Unfortunately, to convince recalcitrant senators to support it, the retroactivity portions of the law were stripped out. Thus, a crack defendant sentenced August 3, 2009, was hammered with the 100:1 ratio, while a defendant sentenced August 3, 2010, was treated more in line with what a cocaine powder defendant would face.

The SSA would make the FSA retroactive, permitting defendants sentenced harshly prior to the adoption of the law eligible for resentencing, at their judges’ discretion, to a more reasonable term.

• cutting mandatory minimums in the drug trafficking laws.

Currently, the Byzantine sentencing regime in 21 USC 841(b) provides differing levels of mandatory minimum sentences for various quantities of different drugs, various number of prior drug felonies, and whether death or serious injury resulted from the drug dealing.

hammer160509Under the SSA, a 10-year mandatory minimum sentence would become 5 years, 20 years would become 10 years, five years would become two years. Right now, a defendant with two prior drug felonies (no matter how old) caught with five kilos of cocaine gets a mandatory life term: no ifs, ands or buts. Sure, the public’s thirst for vengeance is slaked by such toughness. But somehow, when the public sees the same defendant, bent and gray, shuffling across the prison yard a quarter century later, the tough sentence seems pretty wasteful.

The SSA would turn the mandatory life sentence into a mandatory minimum of 25 years.

• cutting mandatory minimums in 21 USC 960 for drug mules carrying drugs into the country courier in half.

mule171017Your poor, dumb peasant from El Cocador humping marijuana across the border or clueless young woman flying in to JFK from East Slobovia with heroin in the liner of her suitcase… These are the couriers, the lowest of the low-level defendant being paid maybe two shekels for hauling someone else’s big score. Under 21 USC 960, the drug importation criminal statute, they get hammered with the same mandatory sentences as Mr. Big, the kingpin staying safely offshore.

The SSA would cut the mandatory minimums applicable to couriers by half.

The bill does not explicitly make any change it proposes retroactive other than the extension of the FSA, but a fair reading of Section 5 of the SSA suggests that the Sentencing Commission should do so according to its retroactivity procedures.

Some of the Smarter Sentencing Act provisions echo those of the Sentence Reform and Corrections Act of 2017, introduced two days earlier. We anticipate that the provisions of the two bills will be blended into a single package by the Senate Judiciary Committee.

S.1933, Smarter Sentencing Act of 2017 (introduced Oct. 5, 2017)

– Thomas L. Root


Hurricane Buncombe Strikes Federal Prisons – Update for Monday, September 11, 2017

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


Buncombe170911The hopemongers are at it again. Several inmates readers have written to us about an email newsletter they received during the past couple of weeks, from a Chicago-area group talking about something it calls the “First Offender initiative.”

Under the Sentencing Guidelines, someone with zero or one criminal history point is considered to have a Criminal History of I. It’s a good place to be: Criminal History I people are on the left-hand column of the Sentencing Table, and get the lowest sentencing ranges.

Yet, there are some Criminal History I folks who have prior offenses that have timed out (and are not counted) or even a point for some recent misdemeanor. Others are as pure as Mother Teresa. Last December, the USSC proposed an amendment for 2017 to give the Mother Teresas of the federal criminal world a break. It floated the idea of a reduction in offense level for those folks, and asked for public comment.

teresa170911Then the USSC ran out of members, as terms expired and too few were left for a quorum. The Senate finally approved two new members in late March, but by then, it was too late for any 2017 amendments. So this November 1, 2017, there will be no Guidelines changes.

A few weeks ago, the USSC re-issued the same proposals it had announced last December, including the proposal for a break for some Crim History I people. The Commission wants public comment on the idea, including on whether it should go with a 1- or a 2-level reduction, and whether to be eligible, a defendant just needs zero criminal history points or a completely clean record for his or her entire life up to that point.

No one knows whether the USSC will decide this should become an amendment. If it does, no one knows which options it will go with. Even if the Commission adopts it next April as a proposed amendment, it will not go into effect until November 2018.

If it does become effective, it will not be retroactive at that time. Retroactivity will require a whole new notice-and-comment process (and six-month waiting period). For the Guidelines change to benefit anyone currently locked up, retroactivity has to be approved by the USSC and not vetoed by Congress. Think maybe spring 2019 at the earliest.

snwowhite170911Enter the hopemongers. An Illinois outfit we will not name sent an inmate newsletter in the last week or so saying “while the Sentencing Commission works to incorporate final comments into the holdover 2016 changes before they are published in the Federal Register, and the 180-day countdown begins, there is plenty of time to study those individuals who appear initially to qualify for this retroactive First Offender relief…” The newsletter urges people to get an “individualized analysis of their case so that it can be incorporated into a petition for relief.”

So what’s wrong with this nonsense? Plenty. First, these are not final comments; they are a complete do-over. Comments are due in October and reply comments in November. The USSC has given no indication it intends to start the 180-day clock until next April, for effectiveness in November 2018, as usual.

Second, no one yet knows who will be eligible and what the eligible will be eligible for. That makes it pretty hard to “study those individuals who appear initially to qualify…”

Third, calling it a “retroactive First Offender relief” is an utter falsehood. The USSC has not even suggested, let alone said, anything that would lead people to believe that this amendment – even if adopted – will be retroactive.

snakeoil170911But the hopemongers’ primary purpose is to get prisoners and their families to pay money for a bogus “individualized analysis.” Guess there’s nothing wrong with turning a slight breeze of a hope into a get-out-of-prison hurricane is all right: after all, the targets are just inmates, and they deserve any misfortune that befalls them, right?

U.S. Sentencing Commission, Proposed Amendments to the Sentencing Guidelines (Aug. 25, 2017)

– Thomas L. Root



6th Circuit Holds Mandatory Guidelines Johnson Issue Not Timely – Update for August 17, 2017

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


split170818Back in medieval times (before 2005), when Guidelines sentencing ranges were mandatory, Jerome Raybon was convicted in federal court of drug distribution. His prior state convictions qualified him under the Guidelines as a “career offender,” thus mandating a much more severe sentence.

One of those prior convictions was the Michigan offense of assault with intent to do great bodily harm. On its face, such an offense sounds like a crime of violence, which is what it had to be to help qualify Jerome as a career offender. But after the Supreme Court handed down Johnson v. United States in 2015, Jerome filed a petition under 28 USC 2255, arguing that the assault conviction was no longer a crime of violence, and his “career offender” status was incorrect.

Johnson151213Of course, Johnson – which held that the part of the “crime of violence” definition that included any offense that carried a significance of injury was unconstitutionally vague – applied to the Armed Career Criminal Act. Two other means by which a prior conviction could be considered a crime of violence were not affected by the decision. Also, the definition of “crime of violence” in Chapter 4B of the Sentencing Guidelines, although identical, was never considered by the Johnson court.

Unsurprisingly, a subsequent case – United States v. Beckles – found its way to the Supreme Court in short order, asking whether Johnson should apply to Guidelines career offender sentences. Last spring, the Supreme Court said it did not, at least not to “career offenders” sentenced under the advisory Guidelines. The Court pointedly said that its decision did not extend to any old sentences under the mandatory Guidelines that might be knocking around.

For their first 16 years of operation, as everyone knows, the Sentencing Guidelines were mandatory, and a judge had to sentence within the specified range except in the rarest of circumstances, when the court could justify a “departure” up or down from the range. Even then, the departure was strictly regulated by the Guidelines.

However, in 2005, the Supreme Court held in United States v. Booker that mandatory sentencing guidelines were unconstitutional. The Court struck the requirement that the Guidelines be followed from the statute, and the Guidelines have been advisory ever since.

So we have split a hair in Johnson, and split that split hair in Beckles. It was inevitable that a case like Jerome’s would arise.

splitB170818The district court said that Jerome’s 2255 motion was untimely, because his argument against the Michigan assault conviction was not that Johnson made it inapplicable, but rather that another case addressing one of the other means of defining a crime as violent – which had been handed down in 2010 – was what disqualified the assault.

Jerome appealed. Earlier this week, the 6th Circuit agreed with the district court, but for a very different reason.

Jerome’s problem, the Court said, was that for his 2255 motion to be timely, it had to be filed within one year of “the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.” 28 USC 2255(f)(3). But due to the Supreme Court’s repeated hair-splitting, the precise issue – whether Johnson applied to an old mandatory Guidelines sentence – has not been decided. In fact, the Supreme Court explicitly said in Beckles that it was not deciding the question of whether Johnson applied to Jerome’s situation.

violent160620Because of that, Jerome’s petition was untimely, and it had to be dismissed. While you would think that settled the matter, the 6th Circuit decided to address his argument anyway, and quickly concluded that, of course, Michigan’s “assault with intent to do great bodily harm” statute remained a crime of violence under the definition even if Johnson did apply. No surprise there.

Whether Johnson will offer relief to any of the 7% or so of federal inmates serving the old mandatory Guidelines sentences is being litigated in several Circuits. The closest case to decision is probably the 4th Circuit case, United States v. Brown, Case No. 16-7056, argued May 11, 2017.

United States v. Raybon, Case No. 16-2522 (6th Cir., Aug. 14, 2017)

– Thomas L. Root


2nd Circuit Says Mathis Is Nothing Special – Update for July 14, 2017

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


silver170714All right, we’ll lead with what everyone is talking about: Yesterday, a three-judge panel of the 2nd Circuit – while holding its collective nose – threw out former New York State Assembly Speaker Sheldon Silver’s 2015 fraud and corruption conviction. As soon as the U.S. Attorney for the Southern District of New York could put down his coffee cup, he announced that his office would retry the case.

And why not? The Court of Appeals almost begged the prosecution to retry the case, this time with a correct set of jury instructions. “We recognize that many would view the facts adduced at Silver’s trial with distaste,” Judge José Cabranes wrote. “The question presented to us, however, is not how a jury would likely view the evidence presented by the government. Rather, it is whether it is clear, beyond a reasonable doubt, that a rational jury, properly instructed, would have found Silver guilty. Given the teachings of the Supreme Court in McDonnell, and the particular circumstances of this case, we simply cannot reach that conclusion.”

The Court ruled that the evidence in Silver’s high-profile trial was certainly enough to convict him of money laundering, Hobbs Act extortion and honest services fraud. But after the Supreme’s decision last summer in McDonnell v. United States, which narrowed the definition of “official acts,” a necessary element of bribery, the panel said the trial court erred by not properly instructing the jury on the charges of honest services fraud and extortion.

But we march to the tune of a different drummer, so our focus is on yesterday’s 2nd Circuit decision in Washington v. United States, one much more consequential to federal inmates.

burglary160502The Supreme Court’s decision last year in Mathis v. United States dramatically tightened the rules used in determining whether defendants’ prior state convictions fit the generic definitions of crimes used in “crime-of-violence” definitions sprinkled throughout the U.S. criminal code. The stakes are high: two defendants may have both committed three of the same types burglaries before being caught with a gun. But because the state statute under which one was convicted defined burglary to include breaking into cars as well as houses, those burglaries are not “burglaries” as defined in the Armed Career Criminal Act. That defendant gets 60 months in prison.

The other guy was convicted in a neighboring state’s statute, which defines burglaries as being committed only on structures. That is not too broad, so his burglaries qualify him for sentencing as under the Armed Career Criminal Act. He will get at least 180 months (15 years) under the ACCA, no matter how the judge might feel about it.

The ACCA is where the battle has mostly been fought, but similar “crimes-of-violence” definitions are used in the Sentencing Guidelines, in the statute on carrying a gun during a crime of violence (18 USC 924(c)) and in the general crime-of-violence definition in 18 USC 16(b), which has great consequence for immigrants subject to deportation for serious crimes.

diagram170714So Mathis, which limited when courts could look at the actual burglary conduct of the defendant and tightened how statutory terms could be defined (remember sentence diagrams in 7th grade English?), is as important to defendants as it is arcane. Of course, equally important to the defendants who have already been convicted and sentenced based on prior crimes of violence is whether the redefinition of the interpretative rules in Mathis is retroactive to their cases. Is Mathis a get-out-of-jail card?

The law substantially limits second bites of the post-conviction apple. Inmates who have filed habeas corpus motions under the statute (28 USC 2255) may not file second 2255 motions without getting prior permission from a court of appeals under 28 USC 2244. That permission is granted only where the new decision that will free them – in this case Mathis – is retroactive. If it’s retroactive, inmates have one year from the new decision’s issuance to file their second 2255.

There were some less-than-scrupulous “paralegal” firms busy earlier this year convincing inmates that they had to file for relief under Mathis by June 22, the one-year anniversary of Mathis. We complained a few months ago that there was no way Mathis could be held to be retroactive, and that filing a 2244 motion with the court of appeals was a waste of time and money.

Some guys didn’t get the message. One was Ronnie Washington, who was sentenced to 240 months’ imprisonment as a career offender under § 4B1.1 of the advisory Sentencing Guidelines. His 2244 motion to the 2nd Circuit asked permission to file a new 2255 motion on the grounds that his prior state law convictions for drug trafficking was unconstitutional in light of Mathis. Yesterday, the Court of Appeals turned him down.

A second or successive 2255 motion on a ground not previously presented is allowed only if the court of appeals certifies that the motion is based on either newly discovered evidence or “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.”

mathis170714Ronnie argued that Mathis “established a new rule that makes” his unconstitutional. The Court disagreed, finding that Ronnie’s “view of Mathis is without merit, as its holding was not based on the Constitution and was based on a rule applied for decades,” at least since the Supreme Court’s 1990 decision in Taylor v. United States. The Court said, “In sum, the Mathis Court was interpreting ACCA, not the Constitution… And although the Mathis Court noted that its ACCA interpretation had been based in part on constitutional concerns, those concerns did not reflect a new rule, for “Taylor set out the essential rule governing ACCA cases more than a quarter century ago.”

The 2nd Circuit decision joins those of three other circuits – the 5th, 7th and 11th – in holding that whatever Mathis may be, it’s not retroactive.

Washington v. United States, Case No. 17-780 (2nd Circuit, July 13, 2017)

– Thomas L. Root


A Nation of Second Chances – Update for January 19, 2017

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


second170119Everyone’s been gushing about second chances, as President Obama goes out in a blaze of commutation glory, granting sentence clemency to over 600 people in his final days in office. And we have no problem with that, except that so many others who were punished with draconian sentences they could never get today were left behind. 

This week also brought a “second chance” for a rational sentence of a different kind. 

Tiofila Santillana was trafficking in methadone. One of her buyers, as buyers of illegally-sold controlled substances are wont to do, overdosed on a cocktail of alcohol and multiple drugs – including methadone – and “shuffel’d off this mortall coile” (which is Shakespearean for “died).” Under 21 USC 841(b)(1)(C), if death results from drugs distributed by a defendant, a court must sentence a defendant to a mandatory minimum 20 years.

The experts testifying in Tiofila’s case agreed that her methadone contributed to the doper’s death, even though it was not the cause of death. The trial court felt obliged to hammer her with a 20-year sentence.

cocktail170119Five years after Tiofila’s conviction, the Supreme Court held in Burrage v. United States that where “use of the drug distributed by the defendant is not an independently sufficient cause of the victim’s death or serious bodily injury, a defendant cannot be liable under the penalty enhancement provision of 21 USC 841(b)(1)(C) unless such use is a but-for cause of the death or injury.” Tiofila promptly filed for relief.

But here’s the rub. Tiofila was out of time to file a motion under 28 USC 2255, because that statute requires that the motion be filed within a year of the case becoming final. There is an exception where the “right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.”

Tiofila filed a petition for writ of habeas corpus under 28 USC 2241, claiming she was entitled to relief under Burrage v. United States. The district court dismissed the petition for lack of jurisdiction, finding that Tiofila had not satisfied the “savings clause” of 28 USC 2255(e) because Burrage was not retroactively applicable on collateral review.

Earlier this week, the 5th Circuit reversed, agreeing with Tiofila that she is entitled to relief. The case provides a clear roadmap as to what must be shown by a petitioner seeking to use a 2241 motion because he or she says a 2255 will not do.

inadequacy17-119Ordinarily, to attack a conviction collaterally, a federal prisoner can seek relief only by a 2255 motion. But under 2255(e)’s “savings clause,” she may file a habeas petition if Sec. 2255 is “inadequate or ineffective to test the legality” of the detention. Courts have held 2255 to be “inadequate or ineffective” if the 2241 petition raises a claim “that is based on a retroactively applicable Supreme Court decision”; (2) the claim was previously “foreclosed by circuit law at the time when [it] should have been raised in petitioner’s trial, appeal or first 2255 motion”; and (3) that retroactively applicable decision establishes that “the petitioner may have been convicted of a nonexistent offense.”

The Court held that Burrage was retroactive whether the Supreme Court had said so or not, because such new Supreme Court decisions “interpreting federal statutes that substantively define criminal offenses automatically apply retroactively,” applying retroactively because they “necessarily carry a significant risk that a defendant stands convicted of an act that the law does not make criminal…”

retro160110The district court had dismissed Tiofila’s petition, relying on Tyler v. Cain, which held that for a prisoner to file a second or successive habeas petition based on a new rule of constitutional law, the Supreme Court must have held the rule to be retroactive to cases on collateral review. But Tyler does not apply to the “savings clause” of 2255(e), the Circuit said, which requires only that a qualifying 2241 petition be based on a “retroactively applicable Supreme Court decision,” without specifying that the Supreme Court must have made the determination of retroactivity.

On its face, the Court said, “Burrage is a substantive decision that interprets the scope of a federal criminal statute… At issue in Burrage was the meaning of “death or serious bodily injury results.” The Burrage holding “narrows the scope of a criminal statute, because but-for causation is a stricter requirement than are some alternative interpretations of “results.”

Santillana v. Warden, Case No, 15-10606 (5th Cir. Jan. 16, 2017)

– Thomas L. Root