Tag Archives: retroactivity

The “Hollowayers” Work To Produce Another Hit – Update for April 5, 2024

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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.

‘HOLLOWAY PROJECT’ BATTLES DOJ ON COMPASSIONATE RELEASE

honeymooner240405Longer ago than I care to recall (I was not yet in kindergarten), Jackie Gleason rocketed to fame as one of the creators and star of “The Honeymooners.” Now, about seven decades later, John Gleeson is the star of his own production – no comedy here – leading what may soon bear a dramatic fight to peel away what he calls the injustice of “stacked” mandatory federal prison sentences.

I was saddened to see Judge Gleeson give up his lifetime appointment on the federal bench eight years ago for white-shoe Wall Street law firm Debevoise & Plimpton. I could hardly blame him: D&P reportedly started him at well above minimum wage (even California minimum wage). But I selfishly wanted him to stay on as an Eastern District of New York judge for no other reason than his cerebral and compassionate approach to federal sentencing. I figured that Debevoise probably didn’t do a lot of court-appointed federal defense work, and we thus had probably seen the last of Judge Gleeson’s fresh and intelligent approach to sentencing.

What did I know? Eight years later, Judge Gleeson not only sits on the U.S. Sentencing Commission, he’s leading a D&P Initiative that could soon face off with the Department of Justice at the Supreme Court.

gleesonB160314Bloomberg Law reports that Judge Gleeson is the driving force behind “The Holloway Project,” a pro bono program that represents prisoners convicted of multiple 18 USC § 924(c) offenses prior to the passage of the First Step Act. The Project’s goal is to reduce the sentences for clients they believe have been rehabilitated after decades in prison.

The project is named for Francois Holloway, who Gleeson himself sentenced to 57 years in a robbery/gun case but later reduced by convincing the U.S. Attorney for EDNY at the time, Loretta Lynch, not to get in the way.

(Parenthetically, the Holloway resentencing spawned a cottage industry of low-brow post-conviction consultants who were hawking “Holloway motions” to prisoners. I heard from a lot of people asking how to file Holloway motions, only to be disappointed when I told them that all they had to do was get the U.S. Attorney and their judge to agree that they should be let out. The universal response: “The prosecutor will never agree to that!”   No kidding. It was hardly Judge Gleeson’s fault that bottom-feeders tried to bilk inmate families on the basis of the Judge’s extraordinary effort on Francois’s behalf, but the Holloway case  was a true Black Swan.)

blackswan170206Back to today: As a Sentencing Commission member, Judge Gleeson championed the adoption of USSG § 1B1.13(b)(6), a subsection of the new Guidelines policy statement on sentence reduction motions (commonly if inaccurately called “compassionate release” motions). which defines overly long sentences where the law has changed as an extraordinary and compelling basis for an 18 USC § 3582(c)(1) sentence reduction. Subsection (b)(6) defines when a nonretroactive change in the law that would reduce a current sentence dramatically if it were retroactive could constitute an “extraordinary and compelling” reason for a sentence reduction under 18 USC § 3582(c)(1)(A).

Subsection (b)(6) is important to compassionate release for the same reason all of USSG § 1B1.13(b)(6) is important. Section 3582(c)(1)(A) authorizes a judge to grant a sentence reduction when three conditions are met:

•  the reduction must be for “extraordinary and compelling reasons.”

•  the reduction must be consistent with applicable Sentencing Commission policy statements.

•  the reduction must be “consistent” (whatever that means) with the sentencing factors of 18 USC § 3553(a).

When Congress enacted § 3582 as part of the Sentence Reform Act of 1984, it stipulated that rehabilitation alone was not an extraordinary and compelling reason for a sentence reduction. As for what might be, Congress did not say. Instead, it delegated to the Sentencing Commission the authority and duty to define exactly what situations constitute “extraordinary and compelling reasons” under the statute.

Guideline 1B1.13 is the Commission’s response, listing by my count 17 situations that are extraordinary and compelling. Of focus to Judge Gleeson’s team is USSG § 1B1.13(b)(6), which says

Unusually Long Sentence.—If a defendant received an unusually long sentence and has served at least 10 years of the term of imprisonment, a change in the law (other than an amendment to the Guidelines Manual that has not been made retroactive) may be considered in determining whether the defendant presents an extraordinary and compelling reason, but only where such change would produce a gross disparity between the sentence being served and the sentence likely to be imposed at the time the motion is filed, and after full consideration of the defendant’s individualized circumstances.

Before the new 1B1.13 was adopted last year, some Circuits ruled that judges – who remain free to consider other factors as being “extraordinary and compelling” – could consider changes in the law as a basis for compassionate release. Others flatly refused to approve such bases for compassionate release. When the Circuit split reached the Supreme Court a year ago, the DOJ urged SCOTUS to wait to consider the issue until the USSC adopted its new policy statement as Congress required.

Now that the Commission has adopted new rules, DOJ is arguing in multiple cases that the Commission exceeded its authority by making the change.

“What [DOJ] said very early on is that their nationwide litigation position was that they are objecting to this provision as an overstep from the Sentencing Commission,” said University of Chicago law professor Erica Zunkel.

A February Northern District of Georgia court decision complained the DOJ had “contradicted itself” by arguing that the Commission doesn’t have the power to answer questions it once urged the Commission to answer:

The DOJ has previously argued that courts should refrain from addressing the retroactivity question because “it should be addressed first by the Commission.” The Commission has now addressed the issue. How can the Commission have the authority to address the question but exceed that authority by addressing the question? This argument lacks merit.

The issue is currently before other district and appeals courts. Gleeson and others expect it will reach the Supreme Court.

moonalice240405When it does, expect Debevoise to be there. Unfortunately, Judge Gleeson himself will not be: as a member of the Sentencing Commission, he will recuse himself from participating in a case arguing the Commission’s authority.

To the moon, DOJ! To the moon!

Bloomberg Law, Debevoise, DOJ Sentencing Reform Clash Could Hit Supreme Court (March 21, 2024)

United States v. Allen, Case No. 1:09-cr-320, 2024 U.S.Dist. LEXIS 28049 (NDGa, February 12, 2024)

– Thomas L. Root

What To Know In Applying For Criminal History Sentence Reduction – Update for October 31, 2023

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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.

RETROACTIVE GUIDELINES BECOME EFFECTIVE – WHAT NOW?

mrexplainer230828Tomorrow, the first Guidelines amendments in five years will become effective, including the two retroactive criminal history Guidelines, the first retroactive guidelines in almost a decade. Although the Sentencing Commission adopted the new compassionate release Guideline – USSG § 1B1.13 – by a 4-3 vote, a Congress preoccupied with Ukraine, government funding, and a House of Representatives paralyzed by lack of a Speaker, was not motivated to use its veto.

I’ve gotten a lot of questions about the two retroactive Guidelines. Here’s a little guidance.

A Guidelines amendment doesn’t help anyone who’s already been sentenced unless it is designated as being retroactive. There haven’t been many over 34 years. If the amendment is retroactive, it will be listed in USSG § 1B1.10(c).

The two retroactive Guidelines are found in Amendment 821. Part A of the amendment cuts “Status Points” – the two points added to criminal history scores when the offense was committed while on probation, parole or supervised release from another crime – by one point for people with seven or more criminal history points and eliminates them altogether for people with six or fewer criminal history points.

There are no eligibility limitations under this part of the amendment based on crime type, violence, or weapons but these are factors a court may consider in determining whether to grant a sentence reduction.

Part B of the Amendment creates a new USSG § 4C1.1 that provides a decrease of two offense levels for “Zero-Point Offenders” (no criminal history points) whose offense did not involve specific aggravating factors:

• No adjustment under USSG § 3A1.4 (terrorism);

• Defendant did not use violence or threats of violence in the offense;

• The offense did not result in death or serious bodily injury;

• The offense of conviction is not a sex offense;

conditions231031• Defendant did not personally cause substantial financial hardship;

• Defendant did not possess, receive, purchase, transport, transfer, sell, or otherwise dispose of a firearm or other dangerous weapon (or induce another participant to do so) in the offense;

• The offense is not covered by USSG § 2H1.1 (involving individual rights);

•  Defendant did not receive an adjustment under § 3A1.1 (Hate Crime Motivation or Vulnerable Victim) or § 3A1.5 (Serious Human Rights Offense); and

• Defendant did not receive an adjustment under § 3B1.1 (aggravating role) and was not engaged in a continuing criminal enterprise under 21 USC § 848.

People with release dates before February 1, 2024, will not be able to receive a reduction in their sentences.

To get the retroactive Guideline reduction, you file a motion under 18 USC § 3582(c)(2). There’s no exhaustion of administrative remedies – no need to send a copout to the warden – before filing. You simply write a motion and file it.

A motion should first show the court that you are eligible for the reduction. That’s not always a slam dunk. For the status point reduction, if taking off the one or two points you will save does not drop you to a lower Criminal History Category, “status point” retroactivity won’t help you. For the “zero point” reduction, you have to show that you meet the conditions.

Eligibility is a legal question. You are or you aren’t. But once the eligibility is established, it becomes a matter of the judge’s discretion. The court can give you a sentence reduction that cannot be more than the bottom of your new sentencing range. But the judge may decide to give you less than the bottom of the new range or even give you nothing at all. And what the judge decides as far as the amount of reduction you can get is unreviewable.

goodboy200903For that reason, a well-written motion for sentence reduction will not only explain to the court about your history and the offense but also cite post-sentencing reasons – such as a good disciplinary record or a history of programming – that convince the court that the reduction is deserved and consistent with the sentencing factors of 18 USC § 3553(a).

A note on below-Guidelines sentences: Section 1B1.10 suggests to the court that it may grant you a reduction, but “a reduction comparably less than the amended guideline range… may be appropriate.” The Guideline gives the example of someone who was sentenced 20% below his original sentencing range. In that case, 1B1.10 suggests, “a reduction of approximately 20 percent below the minimum term of imprisonment provided by the amended guideline range… would amount to a comparable reduction and may be appropriate.”

Sentencing Law and Policy, Gearing up for new guidelines amendments becoming law and working through criminal history retroactivity (October 25, 2023)

Alan Ellis, How Zero-Point Offender Change Should Work Retroactively (October 6, 2023)

USSC, Materials Relating To The 2023 Criminal History Amendment

– Thomas L. Root

Hair-Splitting on § 924(c) Sentence Stacking – Update for September 28, 2023

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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 REFUSES EN BANC ON STACKED § 924(C) SENTENCES

Sentencestack170404Tim Carpenter used a gun in a string of Hobbs Act robberies. He ended up with 105 years when he was sentenced before the First Step Act, which reduced mandatory minimum sentences for stacked 18 USC § 924(c) offenses. But Tim’s sentence was vacated because of errors, and he was not resentenced until after First Step became law.

First Step, if applied to Tim’s sentencing, would reduce his § 924(c) mm sentence from 105 to 25 years. But despite the First Step’s retroactivity provision extending its benefits to defendants awaiting sentencing, and despite Tim’s pre-FSA sentence being thrown out, a three-judge panel held that Tom had to be resentenced under the old version of the statute.

First Step § 403(b) provides that the new § 924(c) sentencing statute would apply to offenses committed before the Act “if a sentence for the offense has not been imposed as of such date of enactment.” The Circuit believes that if a defendant was sentenced for a § 924(c) offense before December 2018 – even if the sentence was vacated later – any new § 924(c) sentence would have to be imposed under the old law.

Last week, the 6th denied en banc review, although six judges wanted to revisit the issue. Judge Bloomekatz spoke for all dissenters in an opinion that some commentators think was an effort to get at least one Supreme Justice’s attention:

The real human costs that this esoteric legal issue presents also should not be overlooked. Because our circuit has split from every other to reach this issue, defendants in Kentucky, Michigan, Ohio, and Tennessee will often have to serve decades longer sentences than those in most of the other states. Timothy Carpenter proves this point. His sentence is eighty years longer than it would be if he had been resentenced in the seventeen states that comprise the 3rd, 4th, and 9th Circuits. The resulting sentencing disparity… should give us pause enough to consider the decision as a full court. Indeed, the circuit split, the federal government’s position, the dissent from then-Judge Barrett in United States v. Uriate, and the dueling opinions on this en banc petition underscore that the scope of the retroactivity provision is far from clear.

Writing in his Sentencing Law and Policy blog, Ohio State University law professor Doug Berman said, “I am pretty sure this Timothy Carpenter has already served 10+ year in prisons, and so may soon be eligible for a reduction in sentence under the ‘unusually long sentences’ criteria in the U.S. Sentencing Commission’s proposed new [1B1.13] ‘Compassionate Release’ policy statement.”

circuitsplit220919In his legal blog, UCLA law prof Eugene Volokh said of the opinion, “The en banc denial—which garners two dissentals—solidifies a circuit split, so keep an eye on this one.”

United States v. Carpenter, Case No 22-1198 (6th Cir., September 18, 2023)

United States v. Uriate, 975 F.3d 596 (7th Cir. 2020)

Sentencing Law and Policy, Notable debate among Sixth Circuit judges as court turns down en banc review of “resentencing retroactivity” after FIRST STEP Act (September 20, 2023)

The Volokh Conspiracy, Short Circuit: A Roundup of Recent Federal Court Decisions (September 22, 2023)

– Thomas L. Root

Mr. Explainer’s “How-to” On Applying For Retroactivity – Update for August 28, 2023

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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.

RETROACTIVITY – WHAT HAPPENS NOW?

mrexplainer230828Last Friday, I reported on the United States Sentencing Commission’s  August 24 action making two of its Guidelines amendments from last April retroactive. Today, I have asked Mr. Explainer to tell people just how prisoners can go about applying for a shorter sentence.

Over 85,000 Federal Bureau of Prisons inmates have either had status points applied in their Guidelines sentencing calculations or had no criminal history points to begin with.  However, the Sentencing Commission estimated in its May 2023 Impact Analysis that only about 11,500 prisoners will be eligible for a lower sentencing range due to the status-point change and about 7,250 prisoners will be eligible for a lower sentencing range based upon the “zero-point” change.

Who Should File: The Dept of Justice complained to the Commission that regardless of who is eligible for a reduced sentence, most zero-point offenders or those with status points are likely to move for a reduction anyway. This would flood the courts, critics complained (many of whom have predicted 17 of the last three times changes in the law or Guidelines did so).

ineligible230828Still, history suggests that if you aren’t eligible, you should save a stamp. Motions that are dead on arrival only gum up the works for people who have meritorious issues and are already waiting too long for a judicial response.

Are you eligible? First, figure out whether applying zero-point or status-point to your Guidelines would change your sentencing range. This is important: If after you adjust your Guidelines for zero-point or status-point, your sentence is within or below your adjusted sentencing range, you are ineligible. Period. Do not pass “go.”

Example: Mike Methdealer had zero points and was a Crim I. His Guideline sentencing range was 135-168, but his judge gave him a break, sentencing him to 120 months, his mandatory minimum. Applying zero-point, his Guidelines fall to 108-135, but he still has a 120-month mandatory minimum. Mike is not eligible.

Example: Rick Recidivist had six criminal history points, putting him at the top of Category III. Two of those were status points. Take those away, and he would have four points, putting him at the bottom of Crim Category III. Rick, too, is not eligible.

Even worse, Rick was sentenced as a Guidelines career offender. Definitely not eligible.

Example: Sammy Snitch had a guideline sentencing range of 188-235 months. But he rolled on his co-defendants, and the judge gave him a four-level 5K1.1 departure to 121 months. Applying his status-point reduction would drop his range to 168-210 months. Special rules apply to people with 5K1.1 sentences, and he would be eligible to have his 121 month reduced proportionately.

Things are especially tough for zero-point men and women, who must meet all of the conditions listed in new USSC § 4C1.1: (1) no USSG § 3A1.4 terrorism adjustment; (2) no violence or threats of violence; (3) no one got hurt; (4) no sex offense; (5) the defendant did not personally cause “substantial financial hardship” (defined in Application Note 4(F) of the Commentary to USSG § 2B1.1); (6) no gun involved in the offense; (7) the offense did not involve individual rights under USSG § 2H1.1; (8) no USSG §3A1.1 adjustment for a hate crime or vulnerable victim or  USSG §3A1.5 for serious human rights offense; and (9) no adjustment under USSG  §3B1.1 for role in the offense and offense was not a 21 USC § 848 continuing criminal enterprise.

When to File: You can file for the reduction as early as November 1, 2023. However, no court is allowed to let the reduction become effective before February 1, 2024.

How to file: The filing you are making is under 18 USC 3582(c)(2) and USSG 1B1.10. There are two components to your showing. One, you have to prove that you are eligible. Two, you have to convince the judge that you are worthy of the reduction.

A judge has almost complete discretion to grant you the reduction up to the bottom of your adjusted range. You have to sell yourself – especially your post-sentence record – to the court.

Who to Hire: No one can answer this for you. You could prepare and file a motion yourself.  You could hire a lawyer or a writing service, remember that in the past (such as the drugs-minus-two in 2014 and Section 404 crack motions after the First Step Act), many district courts appointed the Federal Public Defender to represent eligible prisoners. Be sure you’re not eligible to get it for free from the FPD before you spend good commissary money on a mouthpiece.

phonescam230828What Not to Do:  Speaking of people willing to take your money, the BOP last week issued a media advisory that a phone scam is going around where callers are identifying themselves as BOP employees to ask you to pay money to secure release to pre-release custody for your loved ones. Presumably, the BOP now takes Apple iTunes cards and Googleplay as well as postal money orders.

You can say a lot of things about the BOP, but it does not call people to demand their personal information or money. For now, you cannot buy $10,000 ankle monitors or use prepaid gift cards to buy people’s way out of BOP custody.

US Sentencing Commission, Public Meeting (August 24, 2023)

US Sentencing Commission, Retroactivity Impact Analysis of Parts A and B of the 2023 Criminal History Amendment (May 15, 2023)

Sentencing Law and Policy, US Sentencing Commission votes to make its new criminal history amendments retroactive and adopts new policy priorities (August 24, 2023)

Law360, Sentencing Commission Backs Retroactive Cuts For 1st Timers (August 25, 2023)

Forbes, Bureau of Prisons Warns of Scams (August 25, 2023)

– Thomas L. Root

Criminal History Guidelines Going Retro By Narrowest of Margins – Update for August 25, 2023

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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.

SENTENCING COMMISSION CLIFFHANGER SENDS CRIMINAL HISTORY CHANGES RETROACTIVE

reeves230706Sentencing Commission meetings – and admittedly, we don’t have many in our sample, because the USSC was moribund for the five years ending last August – are usually yawners. Chairman Carlton Reeves likes to talk and loves polite consensus. No one on the Commission is a bomb-thrower, and every the most vigorous policy disputes are cloaked in courtesy. Everyone – even the ex officio Dept of Justice member Jonathan J. Wroblewski – gets a turn at the mic.

That’s partly why yesterday’s meeting was so surprising.

The Commission approved the first retroactive application of a Guideline change in nine years, deciding that Amendment 821 – which lowers criminal history scores in some cases – should apply to people already sentenced. It also adopted policy priorities for the 2024 amendment cycle that include maybe amending how the guidelines treat acquitted conduct and assessing whether Bureau of Prisons practices are effective in meeting the purposes of sentencing.

Zero is Hero:  Right now, someone with zero or one criminal history point (a minor misdemeanor) is scored a Criminal History Category I. This rating provides the lowest sentencing range for any given Guidelines offense level. The Commission has adopted a new ”zero-point” Guidelines amendment, which added Section 4C1.1 to the Guidelines. The new section will grant people with zero criminal history points who meet a long list of other conditions (such as no guns or violence, no sex offenses) a 2-level reduction in their Guidelines offense level. The practical effect will be that the person’s advisory sentencing range will drop two levels (such as from Level 30 (97-121 months) to Level 28 (78-97 months).

Status Seekers: At the other end of criminal history, the Guidelines have always assigned an extra two points if the current offense was committed while someone was under supervision. Supervision could be probation or parole from a prior offense or supervised release from a prior federal offense. The two points (called “status points”) could be a snare for the unwary. A defendant involved in a conspiracy of several years duration might pick up a DUI offense during the period the conspiracy is going on. Even if the local judge lets him or her off with unsupervised probation, that local conviction would add 2 criminal history points and quite likely land the defendant in a higher criminal history category.

nostatus230825Last April, the Sentencing Commission abolished all status points for people who had fewer than seven accumulated criminal history points driving their criminal history category. For those with seven or more points, only one status point would be added rather than two. In making this change, the USSC determined that status points had little to no relevance in the accurate determination of a criminal history profile.

As it must do whenever it lowers the Guidelines, the Commission last May opened a proceeding to determine whether those changes should benefit people who have already been sentenced as well as those who have yet to be sentenced. This retroactivity proceeding ended with yesterday’s meeting.

Chairman Reeves opened the meeting with a full-throated endorsement of making the criminal history amendments retroactive. Commissioners Luis Restrepo (Judge on the 3rd Circuit Court of Appeals) and Laura Mate (Federal Public Defender) followed him, voicing their support for full retroactivity.

I yawned. It hardly mattered at this point that the Commission’s audio feed was garbled, because retroactivity was up 3-0, and it seemed that victory was a foregone conclusion. A done deal.

But then, Commissioner Claire Murray (a former Assistant Attorney General) delivered an ordered and rational argument against retroactivity, followed by complementary arguments against going retro by Commissioners Candice Wong (US Attorney’s Office for DC) and Claria Horn Boom (US District Judge from both districts of Kentucky). Suddenly, the vote was 3-3, and retroactivity was tottering.

It thus fell to Commissioner John Gleeson (Wall Street lawyer and former federal judge) to decide whether 18,000 or so federal prisoners would be eligible to have their sentences adjusted to what USSC doctrine now believed was appropriate. Judge Gleeson did not disappoint.

gleesonB160314Speaking in quiet, measured tones, Judge Gleeson observed that the opponents of retroactivity complained that the changes made by Amendment 821 “do not remedy a systemic wrong and thus could not rectify a fundamental unfairness in the guidelines manual,” and thus the need for finality and the administrative burden placed on courts by retroactivity meant that the changes should not be made retro. “In my view,” Judge Gleeson said, “it is hard to overstate how wrong that argument is.”

Judge Gleeson highlighted the disproportionate impact the two criminal history guidelines had had on minorities. He said that 43% of the prisoners affected by the retroactive change in status points are black and 20% are Hispanic. About 69% of those benefitting from the zero-point change are Hispanic. Judge Gleeson said that while

“there’s no such thing as fully remedying and racial disparity that’s been built into our criminal justice system for so long… making these amendments retroactive will have a tangible effect for people of color… Overreliance on criminal history can drive pernicious racial disparities in sentencing… we [have] visited fundamental unfairness on thousands of people through guidelines that judges follow… [that] we know from the data are wrong… At the receiving end of these sentences there are three-dimensional human beings.”

Final vote for retroactivity was 4-3.

retro160110The retroactivity order prohibits district courts from granting any change in sentences prior to February 1, 2024. The Commission voted that delay to ensure that people who might be released will have the opportunity to participate in reentry programs and transitional services that will increase the likelihood of successful reentry to society.

The Commission estimated in its July 2023 Impact Analysis that retroactive application would carry a meaningful impact for many currently incarcerated individuals:

• 11,495 prisoners will have a lower sentencing range due to the status-point change, with a possible sentence reduction of 11.7%, on average.

• 7,272 prisoners will be eligible for a lower sentencing range based upon the “Zero-Point” change, with an average possible sentence reduction of 17.6%.

Eligible prisoners will have to file a motion with their sentencing courts under 18 USC § 3582(c)(2) seeking the reduction. The district court is entitled to grant no more than a reduction to the bottom of the revised sentencing range (with special rules for people who have had departures for assisting the government), and no issues may be considered other than the revised criminal history score. Whether to grant as much a reduction as possible, only part of the possible reduction, or none at all is entirely up to the judge.

US Sentencing Commission, Public Meeting (August 24, 2023)

Sentencing Law and Policy, US Sentencing Commission votes to make its new criminal history amendments retroactive and adopts new policy priorities (August 24, 2023)

– Thomas L. Root

Vacation’s Over, Back to Work – LISA Update for July 31, 2023

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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.

OCCASIONALLY (BUT RARELY) I’M RIGHT

I am back from a week in the wilds with three wild grandchildren, a great vacation marred only by the LISA site crashing for five days. Did I remember to publicly thank LISA’s website provider for its alacrity in fixing the problem?

No, I did not forget to My omission was quite deliberate.

Now back to work: I have been predicting for weeks that the US Sentencing Commission will probably make the new Sentencing Guidelines §§4A1.1(e) and 4C1.1 retroactive sometime in August.

Amended §4A1.1(e) abolishes “status points” from Guidelines criminal history, while §4C1.1 reduces the Guidelines offense level for some people with zero criminal history points.

iamright230731Last Thursday, the USSC announced a public meeting will be held on August 24, and that the meeting will include as an agenda item a “possible vote on retroactivity of Parts A and B of the 2023 Criminal History Amendment.”

For the uninitiated, “Parts A and B of the 2023 Criminal History Amendment” are the zero-point and status-point changes we’re talking about.

If the vote is favorable, then people will likely be able to apply for 18 USC § 3582(c)(2)/USSG § 1B1.10 retroactivity at the end of February 2024.

Of course, Congress could veto the proposed amendment. However, half of the 6-month review period for the 2023 amendments has already passed, and Congress is on vacation until the week after Labor Day. With an appropriations bill deadline at the end of September and reams of unfinished business, the chance both the House and the Senate will veto any part of the 2023 Amendments before the November 1 effective date is remote.

The same is probably true for the 6-month review period on retroactivity.

US Sentencing Commission, Public Meeting – August 24, 2023 (July 27, 2023)

– Thomas L. Root

Mr. Explainer Here: All About Guidelines Retroactivity – Update for July 20, 2023

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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.

MR. EXPLAINER TACKLES RETROACTIVE GUIDELINES

USSC160729The good news is that the U.S. Sentencing Commission is likely to approve a proposal that two Guidelines changes it adopted in April should be retroactive for people already sentenced.

The better news is that Congress seems too busy to try to gin up a veto of any of the provisions approved by the USSC and submitted to the legislators for review.

Today’s guest is Mr. Explainer, who is here to guide us through the fine print of getting retroactive application of the two changes:

• First, no one can file a motion for retroactive application of the two Guidelines changes until six months pass from the time the USSC sends the proposed retroactivity order to Congress. That means that all of the inmates doing a happy dance in anticipation of November 1, 2023, will have to wait at least until Punxatawny Phil sees his shadow.

• Second, the two changes have conditions attached:

(a) The zero-point change in the Guidelines (new USSG § 4C1.1) says that defendants are eligible for a 2-level reduction in their Total Offense Level (usually good for a two-sentencing range reduction) if they had zero criminal history points and meet all of the following conditions:

(1) had no adjustment under § 3A1.4 (Terrorism);

(2) did not use violence or credible threats of violence in connection with the offense;

(3) the offense did not result in death or serious bodily injury;

(4) the offense is not a sex offense;

(5) the defendant did not personally cause substantial financial hardship;

(6)  no gun was involved in connection with the offense;

(7) the offense did not involve individual rights under § 2H1.1;

(8) had no adjustment under § 3A1.1 for a hate crime or vulnerable victim or  § 3A1.5 for a serious human rights offense; and

(9) had no adjustment under § 3B1.1 for role in the offense and was not engaged in a 21 USC § 848 continuing criminal enterprise.

(b) The change in § 4A1.1(e) – the so-called status point enhancement – says only that one point is added if the defendant already has 7 or more criminal history points and “committed any part of the instant offense (i.e., any relevant conduct) while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status.”

fineprint180308• The USSC staff has figured that about 11,500 BOP prisoners with status points would have a lower guideline range under a retroactive § 4A1.1(e). The current average sentence for that group is 120 months and would probably fall by an average of 14 months.

• About 7,300 eligible prisoners with zero criminal history points would be eligible for a lower guideline range if the zero-point amendment becomes retroactive. The current average sentence of 85 months could fall to an average of 70 months.

• The reduction – done under 18 USC § 3582(c)(2) – is a two-step process described in USSC § 1B1.10.

(a) First, the court determines whether the prisoner is eligible. For a zero-point reduction, the court would have to find that the prisoner (1) had no criminal history points; (2) had none of the other enhancements in his case or guns or sex charges, or threats of violence or leader/organizer enhancements or any of the other factors listed in § 4C1.1. Then, the court would have to find that granting the two-level reduction would result in a sentencing range with a bottom number lower than his or her current sentence.

If your guidelines were 97-121 months, but the court varied downward to 78 months for any reason other than cooperation, you would not be eligible because reducing your points by two levels would put you in a 78-97 month range, and you are already at the bottom of that range. Special rules apply if you got a § 5K1.1 reduction for cooperation, but people sentenced under their sentencing ranges for reasons other than cooperation may not be eligible.

(b) To benefit from the status point reduction, the decrease in criminal history points is more problematic. If you have 4, 5, or 6 criminal history points, you are in Criminal History Category III. If two of those points are status points, they would disappear. Going from 5 points to 3 or 4 points to 2 would drop you into Criminal History Category II. If your prior sentencing range had been 70-87 months, your new range would be 68-78 months, and you would be eligible.

But if you had 6 criminal history points, you would only drop to 4 points, and you would still be in Criminal History Category III. No reduction in criminal history, no decrease in sentencing range, and thus no eligibility.

• Once you’re found to be eligible, your judge has just about total discretion whether to give you all of the reduction you’re entitled to, some of it, or none of it. You cannot get more than the bottom of your amended sentencing range, and the court cannot consider any other issues in your sentence than the retroactive adjustment.

usscretro230406Convincing the court that you should get the full benefit of your reduction is best done with letters of support from the community, a good discipline record and a history of successful programming. Showing the court that you have been rehabilitated to the point that the reduction has been earned is a good idea.

There’s a good reason that the retroactivity – if it is adopted – will end up benefitting no more than 12% of the BOP population. It is not easy to show eligibility and even tougher to prove that the court should use its discretion to give you the credit.

USSC, Retroactivity Impact Analysis of Parts A and B of the 2023 Criminal History Amendment (May 15, 2023)

USSC, Sentencing Guidelines for United States Courts (May 3, 2023)

USSC § 1B1.10, Reduction in Term of Imprisonment as a Result of Amended Guideline Range (Policy Statement)

– Thomas L. Root

USSC Retro Inquiry Gets a Boost – Update for May 26, 2023

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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.

SENTENCING COMMISSION ANALYZES EFFECT OF CRIMINAL HISTORY RETROACTIVITY

retro160110When it adopted proposed Guidelines amendments last month, the Sentencing Commission asked whether two of them – the new USSG § 4C1.1 that would provide a 2-level reduction to people with non-violent non-sex offenses with zero criminal points and the abandonment of extra criminal history points (called “status points”) applied to people who were on probation, parole or supervised release when they committed their current offense (and thus should have really known better) – should be retroactive.

Any change in the Sentencing Guidelines does not benefit people who have been sentenced before the change was effective unless the Sentencing Commission – in a separate proceeding – determines that the change should be retroactive. If it does, those already sentenced may petition their sentencing judges to resentence them as though the new Guideline applied to their sentence.

It doesn’t happen often: the last retroactive Guidelines change that was declared to be retroactive was the 2014 across-the-board 2-level reduction in the drug quantity tables of USSG § 2D1.1. That change, to pick an illustration, reduced the offense level of someone who sold a kilo of cocaine from 26 to 24. If the defendant had no prior criminal convictions and no other aggravating factors (such as stupidly having a gun), his or her advisory sentencing range would have dropped a year, from 63 to 51 months).

manyaslip230526There are many a slip ‘twixt cup and lip, of course: the Guidelines reduction must have reduced the sentencing range: a veteran criminal with the top level of criminal history and an offense level of 39 might see her level fall to 37, but the advisory sentencing range would still start at 360 months. And if all of the eligibility hurdles are crossed, the sentencing judge may still decide the defendant’s a bad dude and decline any reduction. But still, for those who are eligible, a Guidelines reduction that goes retroactive provides hope.

Currently, the Commission is taking public comment on the wisdom of letting people benefit from retroactivity of the very wise changes proposed for criminal history scoring. That comment period ends June 23. After that, the USSC will decide whether to add the § 4C1.1 amendment to the retroactivity list. If it does, Congress will get 6 months to decide whether to veto it.

If retroactivity is adopted and gets past Congress, prisoners will be able to apply for a reduction under 18 USC § 3582(c)(2) and USSG § 1B1.10 (the statute and guideline, respectively, that govern the process).

Two issues that always arise are whether the retroactivity would create a flood of court filings that would gum up the federal courts, and exactly how many people might benefit. Last week, the USSC staff issued a study that gives the retroactive argument a boost.

releaseme211231The staff estimated that 11,500 BOP prisoners with status points would have a lower guideline range if the abandonment of status points becomes retroactive. The current average sentence for that group is 120 months and would probably fall by an average of 14 months.

The report also figures that about 7,300 eligible prisoners with zero criminal history points would have a lower guideline range if the zero-point Guidelines change becomes effective. The current average sentence of 85 months could fall to an average of 70 months.

Writing in his Sentencing Law and Policy blog, Ohio State University law professor Doug Berman said, “Putting these particulars together in a very rough way, it seems that the USSC is estimating that just under 19,000 thousand current federal prisoners would be able to get just under 1.2 years off their sentences if these new criminal history amendments are made retroactive. That adds up to a total of about 23,000 prison years saved were these new guideline amendments made retroactive and these estimated impacts become reality.”

USSC, Retroactivity Impact Analysis of Parts A and B of the 2023 Criminal History Amendment (May 15, 2023)

Sentencing Law and Policy, US Sentencing Commission publishes detailed retroactivity analysis for its amendments to federal guidelines’ criminal history rules (May 15, 2023)

– Thomas L. Root

Three First Step Reform Retread Bills Introduced – Update for April 24, 2023

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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.

DÉJÀ VU ALL OVER AGAIN

deja171017Senate Majority Whip Richard Durbin (D-IL), chairman of the Judiciary Committee, and Sen. Charles Grassley (R-IA) last Wednesday reintroduced three of the biggest criminal justice of the last Congress, reform bills that made it out of Senate committee but never got voted on in 2021-2022.

Yogi Berra might say, “It’s déjà vu all over again.”

Durbin and Grassley sponsored First Step five years ago. Now, they have reintroduced the First Step Implementation Act (FSIA) (S. 1251) and Safer Detention Act (S.1248) – both of which were approved by the Committee in 2021 but did not pass the Senate the last Congress – as well as rolled out the Terry Technical Correction Act (S. 1247).

The FSIA would allow courts to apply First Step sentencing reform provisions to reduce sentences imposed prior to First Step’s December 2018 enactment and broaden the drug safety valve (18 USC § 3553(f)) to allow courts to sentence below a mandatory minimum for nonviolent controlled substance offenses, if the court finds the defendant’s criminal history over-represents the seriousness of the defendant’s criminal record and the likelihood of recidivism.

The Safer Detention Act of 2023 would reform the Elderly Home Detention Pilot Program (34 USC § 60541(g)(5)) by clarifying that the time served required for the Program should be calculated based on an inmate’s net sentence – including reductions for good conduct time credits; lowering eligibility to include nonviolent offenders who have served at least 50% (instead of 66.7%) of their terms; and making D.C. Code offenders in BOP custody eligible for the Elderly Home Detention Pilot Program. The bill would also make federal prisoners sentenced before November 1, 1987 eligible for compassionate release.

jordan230425The Terry Technical Corrections Act (S. 1247) broadens the scope of crack cocaine offenders who are eligible for a retroactive sentencing reduction under the First Step Act of 2018. The First Step Act authorized sentencing reductions for crack cocaine offenders convicted and sentenced before the Fair Sentencing Act became effective, as long as their conduct triggered a mandatory minimum sentence. This bill extends eligibility for the retroactive sentencing reduction to all crack cocaine offenders sentenced before the Fair Sentencing Act became effective, including low-level offenders whose conduct did not trigger a mandatory minimum sentence.

Remember that this same trio of modest proposals did not pass even when the Democrats ran the House, the Senate and the White House. Now, the Republicans run the House, with Rep. Jim Jordan (R-OH) chairing a House Judiciary Committee more interested in attacking Democrats for being soft on crime and hard on former President Trump than it is in addressing criminal justice reform.

Writing in his Sentencing Law and Policy blog last Thursday, Ohio State University law prof Doug Berman said, “For a wide variety of reasons, I am not at all hopeful that any form of federal sentencing reform will be enacted in the current Congress. But I was still pleased to learn… that a pair of notable Senators are still seeking to advance some notable (previously stalled) sentencing bills.”

underthesun230424

Kohelet was an old and wise guy when he reputedly wrote the Book of Ecclesiastes. If he were still writing, it would be about these three bills.  Nothing new under the sun, indeed, as will probably be the fate of these three – demise in December 2024, just as the last three died at the end of 2022. At that time, we will be writing of the FSIA, Safer Detention Act and Terry Technical Correction Act, “Vanity of vanities! All is futile! What profit hath a man for all his toil, in which he toils under the sun?”

Reintroduction of the three measures last week came as The Crime Report complained that “after four years, the impact of the First Step Act has been mixed… In March 2022 that there were 208,000 inmates in federal prisons and jails. But only 5,000 inmates… have been released through one or more provisions of the FSA.”

The Crime Report concluded

The sheer number of reforms in the FSA that are the antithesis to the Nixon-era ‘lock-‘em-up-and-throw-away-the-key’ penal philosophy of both the Bureau of Prisons and the US Sentencing Commission make it exceedingly difficult to have the promise of the FSA fulfilled. The very magnitude of the law and its stated objectives, which include reducing recidivism and improving conditions in federal prisons, has resulted in less than what was initially promised by the supporters of FSA.

First Step Implementation Act (S.1251)

Safer Detention Act of 2023 (S.1248)

Terry Technical Corrections Act (S.1247)

Sentencing Law and Policy, Senators Durbin and Grassley introduce again set of First Step follow-up bills (April 20, 2023)

The Crime Report, The Promises Of Federal Criminal Justice Reform: Shortcomings of the First Step Act (April 17, 2023)

– Thomas L. Root

Guidelines Criminal History Changes To Benefit Some – Update for April 21, 2023

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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.

EXPLAINER: CRIMINAL HISTORY RETROACTIVITY

explain230420I don’t usually write this kind of thing, but I am getting a lot of questions about the possibly retroactive changes in the criminal history Guidelines.

Earlier this month, the United States Sentencing Commission proposed two Sentencing Guidelines changes benefitting people at both ends of the criminal history spectrum.  Because these changes might become retroactive, many prisoners wonder what might be in it for them.  So here goes:

A sentencing range for a Federal defendant is determined on a table found in Section 5 of the Sentencing Guidelines. A defendant’s offense level – specific to the offense of conviction and usually fortified with several enhancements for leadership, weapon, sophisticated planning and the like – is calculated.  Then, the court takes a dive into the defendant’s criminal history, assigning points to prior offenses depending on severity, status at the time of the offense, and the like.

Those two rankings are applied to the Sentencing Table, with the Total Offense Level being the ordinant and the Criminal History Category (from I to VI) being the abscissa.

zeropoints230420When Zero is Hero: Anyone with zero or one criminal history points falls in Criminal History I. But believing someone who absolutely no prior criminal history points is a special breed of virgin, the Commission has proposed USSG § 4C1.1. This Guideline would provide a 2-level decrease in the Total Offense Level for people with zero points.

Caution: the draft has more holes than a prairie dog village. The two-level decrease would only apply when the defendant did

(1) not receive any criminal history points;

(2) not receive a terrorism adjustment under 3A1.4;

(3) not use violence or threats of violence in the offense;

(4) not commit an offense resulting in death or serious bodily injury, or a sex offense;

(5) not personally cause substantial financial hardship;

(6) not possess of a gun or other dangerous weapon, or get someone else to do so);

(7) not commit an offense involving individual rights, a hate crime, or serious human rights offense); or

(8) not receive a USSG § 3B1.1 role adjustment and was not engaged in a 21 USC § 848 continuing criminal enterprise.

As an example, a defendant with no criminal history points who was convicted of selling a pound of cocaine might have a Total Offense Level of 22.  As a Criminal History Category I, she would have an advisory sentencing range of 41-51 months.  But if she had been a cheerleader and churchgoer before her unfortunate descent into drug-dealing – with zero prior criminal history points – her Total Offense Level would fall by two.  Her sentencing range would then be 33-41 months, not exactly probation, but eight months less is eight months less.

lesson230420Status Seekers:  The status point change is easier. Currently, § 4A1.1(d) of the Guidelines currently adds two criminal history points “if the defendant committed the instant offense while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status.”

Makes sense. Prison is supposed to teach inmates a lesson, which is (among othert things) ‘don’t break the law‘. Hitting recently-released people with extra status points because they didn’t read the memo (the one that said ‘go forth and break the law no more’). Nevertheless, the Commission has found that its research showed the status points have no effect

Now, the Guidelines will only add a single point if a defendant committed the instant offense while under any criminal justice sentence – including probation, parole, supervised release, imprisonment, work release, or escape status – and already has seven criminal history points before the status point is added.

retro160110Going Retro: The USSC has sought comment on whether it should make the key parts of its new criminal history amendment “available for retroactive application.” If it becomes retroactive and Congress does not veto the change, people who were “crim zeros” or who had status points could file for benefit probably starting in early 2024.

Just note that unless application of the Guidelines change reduces a defendant;s Guidelines sentencing range, he or she can get no benefit from it. Read up on Guideline § 1B1.10 for how this works.

USSC, Amendments to the Sentencing Guidelines (Preliminary) (April 5, 2023)

Sentencing Law and Policy, Highlighting US Sentencing Commission’s significant amendments to federal guidelines’ criminal history rules (April 9, 2023)

– Thomas L. Root