Tag Archives: sentencing commission

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

Leave a comment

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

What’s Old Is New – Update for July 11, 2023

Leave a comment

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

SCOTUS DENIAL OF ACQUITTED CONDUCT SENTENCING REVIEW MAKES LITTLE SENSE

As everyone knows, on June 30 the Supreme Court finally denied review to a thundering herd of petitions (13 in all) raising the constitutionality of acquitted conduct sentencing. And in so doing, the Court suggests that it’s way behind the times.

acquitted230106Acquitted conduct sentencing is the practice of using a charge of which a defendant was acquitted by a jury to enhance a sentence. The lead petitioner, Dayonta McClinton, was convicted of robbing pharmacies but acquitted of killing one of his fellow robbers in an argument over sharing proceeds. Nevertheless, the judge more than tripled his sentence from a range of 57-71 months to a sentence of 228 months because the murder was “related conduct,” despite the fact a jury said the petitioner was not guilty of killing his co-conspirator.

A careful reading of the statements issued by some Justice on the denial adds equivocation to five months of evasion.

When the Supreme Court denied review, Justice Sotomayor dissented and several other Justices issued statements. Last week, in his Sentencing Policy and the Law blog, Ohio State University law professor Doug Berman wrote at length about the denial of review. “It is quite obvious that objections to the use of acquitted conduct at sentencing raise constitutional issues,” he said. The certiorari petition filed by Dayonta McClinton makes this clear in its Question Presented: “Whether the Fifth and Sixth Amendments prohibit a federal court from basing a criminal defendant’s sentence on conduct for which a jury has acquitted the defendant…’ These rights are, as the Court put it in Apprendi, “constitutional protections of surpassing importance” because they define restraints on state powers and processes to impose criminal punishments.”

The statements of Justices Kavanaugh, Gorsuch and Barrett suggested these Justices voted against granting certiorari because the Sentencing Commission was considering new guidelines for acquitted-conduct sentencing. Justice Kavanaugh wrote that it is “appropriate for this Court to wait for the Sentencing Commission’s determination before the Court decides whether to grant certiorari in a case involving the use of acquitted conduct.” But as Berman observes, Kavanaugh

does not explain why it is ‘appropriate’ to leave unresolved a constitutional issue while a federal agency might address a policy issue… The Justices’ statements referencing the USSC do not account in any way for how any ‘Sentencing Commission determination’ would have any impact on the Court’s consideration of ‘constitutional protections of surpassing importance.’

Policy is policy, but constitutionality is fundamental. As Berman notes, whether acquitted conduct sentencing is constitutional has nothing to do with whether the USSC thinks that it makes policy sense to permit acquitted conduct sentencing. Obviously, the USSC once thought so (given that USSG § 1B1.3 relevant conduct sentencing has been a fixture of federal sentencing since 1988). As Berman put it, “How the USSC (or Congress) might choose to regulate sentencing law and process would not and could not resolve the array of constitutional concerns that the Supreme Court was asked to consider in McClinton. Indeed, the USSC and Congress cannot even know the full reach and limits of their powers to set forth rules concerning acquitted-conduct sentencing with constitutional matters unresolved.”

Besides, the USSC and Congress can only speak to acquitted conduct sentencing at federal sentencing, even though over 90% of sentences are handed down by state courts.

wrong160620Berman cites another problem with the Supreme Court’s punt on acquitted conduct sentencing. Justice Sotomayor’s dissent says that “the Sentencing Commission, which is responsible for the Sentencing Guidelines, has announced that it will resolve questions around acquitted conduct sentencing in the coming year.” The Kavanaugh, Gorsuch and Barrett statement says, “The Sentencing Commission is currently considering the issue.”

Neither is correct.

Berman suspects that Sotomayor’s dissent and Kavanaugh’s statement were written months ago, before the Sentencing Commission – which proposed an acquitted conduct sentencing amendment in January – withdrew its acquitted conduct sentencing proposal for further study on April 5th. What’s more, when the Commission released its proposed 2024 amendment cycle priorities last month, acquitted conduct sentencing was conspicuously absent.

“It no longer seems to be accurate to state that the Commission ‘has announced that it will resolve questions around acquitted-conduct sentencing in the coming year’” or that it is currently considering the issue, Berman wrote last week.

The Supremes seem to expect the USSC to assume the burden. The USSC, which is ill-equipped to do so, expects SCOTUS to do its job. Expect nothing from either body on acquitted conduct sentencing: you won’t be disappointed.

Sentencing Law and Policy, Inartful dodgers: constitutional concerns with acquitted conduct that only SCOTUS can address (July 4, 2023)

Sentencing Law and Policy, Inartful dodgers: did the Justices write cert denial statements in the acquitted conduct cases months ago? (July 5, 2023)

– Thomas L. Root

Acquitted Conduct Coming Around Again at Supreme Court – Update for May 30, 2023

Leave a comment

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

IS 13 A LUCKY NUMBER FOR ACQUITTED CONDUCT?

lucky13-230530For the past five months, we’ve been watching McClinton v. United States, a petition in front of the Supreme Court challenging the constitutionality of acquitted-conduct sentencing.

You’d think that fact that a jury has acquitted a defendant of criminal conduct should prevent a court from taking that conduct into account at sentencing, but since United States v. Watts in 1997, as long as a defendant is convicted of any criminal offense, punishment for that offense can be enhanced to account for conduct for which a jury found the defendant not guilty.

Some state courts have held acquitted conduct sentencing to be unconstitutional, and some former Supreme Court Justices – Antonin Scalia, Ruth Bader Ginsburg – and current Justice Clarence Thomas have condemned the practice.

McClinton and four similar petitions were relisted once in January. “Relisting” means the justices considered the petitions at a weekly conference and then deferred a decision on whether to grant review (certiorari) to the next conference. A “relist” suggests that one or several Justices support granting the petitions.

duplicity2305309In late January, the Dept of Justice got the Supreme Court to place a hold on McClinton and four other petitions by essentially assuring SCOTUS that proposed Guidelines amendments rolled out by the Sentencing Commission on January 12th – which included a proposal to ban acquitted conduct sentencing – were going to fix the problem. DOJ told the Supreme Court that “[t]his Court’s intervention” was not “necessary to address” the widespread problem of acquitted-conduct sentencing because “the Sentencing Commission could promulgate guidelines to preclude such reliance.”

You may recall that after selling the Supreme Court on tabling the acquitted conduct petitions, DOJ filed an unctuous set of comments with the Sentencing Commission a few weeks later arguing the USSC lacked authority to place restrictions on acquitted-conduct sentencing because 18 USC § 3661 bars restricting judges as to the information about the background and conduct of defendants that they can consider.

(As an aside, I note that McClinton’s counsel promptly informed the Supreme Court about DOJ’s gamesmanship in trying to torpedo McClinton because the Sentencing Commission would fix the problem at the same time it was whining to USSC that the agency lacked the legal right to do so).

The Sentencing Commission decided on April 5 not to act on acquitted conduct this year, although it said it would try to take the issue up next year. Now, maybe because of DOJ’s duplicity, the Supreme Court relisted those original five cases for a second time, to be discussed at last Thursday’s conference. And now, the five pending petitions have been joined by an additional eight cases raising the same or similar issues.

As John Elwood put it in SCOTUSBlog last week, “We’ll find out soon how lucky these 13 petitions are.” ‘Soon’ could be this morning at 9:30 am Eastern, when the results of last week’s conference are announced.

McClinton v. United States, Case No. 21-1557 (petition for certiorari pending)

SCOTUSBlog, Acquitted-conduct sentencing returns (May 24, 2023)

Sentencing Law and Policy, Catching up, yet again, with a big bunch of relisted acquitted conduct petitions pending before SCOTUS (May 24, 2023)

– Thomas L. Root

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

Leave a comment

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

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

Leave a comment

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

Rely on USSC Guidance… Or Not, 7th Circuit Says – Update for April 18, 2023

Leave a comment

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

THAT WAS THEN, THIS IS NOW

Remember when the 7th Circuit ruled that old Guideline 1B1.13 – that rather rigidly defined what constituted an “extraordinary and compelling” reason for sentence reduction under 18 USC § 3582(c)(1)(A) – did not apply to inmate-filed compassionate release  motions?

The Circuit ruled in the 2020 United States v. Gunn decision that while 1B1.13 did not apply, the result was not a “sort of Wild West in court, with every district judge having an idiosyncratic release policy.” This was because “the substantive aspects of the Sentencing Commission’s analysis in 1B1.13 and its Application Notes provide a working definition of ‘extraordinary and compelling reasons’… the Commission’s analysis can guide discretion without being conclusive.”

wildwest230418Well, apparently, it guides until it doesn’t guide. And “doesn’t” happened last week, when the 7th ruled that a prisoner’s “unconstitutionally-imposed mandatory life sentence” from a 2001 case cannot be a part of the “extraordinary and compelling” reasons for a compassionate release despite the fact that a week before the opinion was issued, the Commission formally proposed amending 1B1.13 to include harsh sentences that no longer could be imposed due to a change in the law.

Suddenly, the Commission’s analysis provides no meaningful guidance to the Circuit at all:

The USSC is in the process of studying the issue, and recently it has proposed defining ‘extraordinary and compelling reasons’ to include circumstances in which ‘[t]he defendant is serving a sentence that is inequitable in light of changes in the law.’ But this effort is still at an early stage—so early that we see no value in speculating on what such a change would mean. Until the Commission definitively says otherwise, we will not deviate from our current understanding. We therefore affirm the judgment of the district court.

The opinion cited the draft USSC proposal from January and not the Commission’s April 5th action released eight days before the Circuit’s opinion was handed down. A reasonable observer could conclude that “the Commission [has] definitively [said] otherwise” at this point:

[T]he proposed amendment would add a new category (“Unusually Long Sentences”) providing that 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.

One can only hope that the prisoner’s attorney seeks rehearing of a decision that reflects much more sloppiness than one should expect from an appellate court.

United States v. Williams, Case No. 22-1212, 2023 U.S. App. LEXIS 8826 (7th Cir., April 13, 2023)

United States v. Gunn, 980 F.3d 1178 (7th Cir. 2020)

U.S. Sentencing Commission, Amendments to the Sentencing Guidelines (Preliminary) (April 5, 2023)

– Thomas L. Root

Guideline Amendments Adopted in Contentious USSG Love-fest – Update for April 6, 2023

Leave a comment

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 ADOPTS AMENDMENTS

USSC170511The U.S. Sentencing Commission yesterday adopted proposed amendments to the Federal Sentencing Guidelines for the first time in five years, with the new “compassionate release” guidelines consuming much of the meeting and generating sharp (but collegial) disagreement.

The “compassionate release” Guideline, USSG § 1B1.13, was approved on a 4-3 vote. It updates and expands the criteria for what can qualify as “extraordinary and compelling reasons” to grant compassionate release – the language in 18 USC § 3582(c)(1)(A) – and it will give judges both more discretion and more guidance to determine when a sentence reduction is warranted.

The new categories that could make an inmate eligible for compassionate release include

• if the prisoner is suffering from a medical condition that requires long-term or specialized medical care not being provided by the BOP and without which he or she is at risk of serious deterioration in health or death.

• if the prisoner is housed at a prison affected or at imminent risk of being affected by (an ongoing outbreak of infectious disease or an ongoing public health emergency declared by the appropriate federal, state, or local authority, and due to personal health risk factors and custodial status, he or she is at increased risk of suffering “severe medical complications or death as a result of exposure” to the outbreak.

• if the prisoner’s parent is incapacitated and the prisoner would be the only available caregiver.

• if the prisoner establishes that similar family circumstances exist involving any other immediate family member or someone whose relationship with the prisoner is similar in kind to that of an immediate family member when the prisoner would be the only available caregiver.

• if the prisoner becomes the victim of sexual assault by a corrections officer.

• if a prisoner received an unusually long sentence and has served at least 10 years of the term of imprisonment, changes in the law (other than to the Guidelines) may be considered in determining whether an extraordinary and compelling reason exists, 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.

The amendments also provide that while rehabilitation is not, by itself, an extraordinary and compelling reason, it may be considered in combination with other circumstances.

compassion160208Three of the seven-member Commission disagreed sharply with the “unusually long sentence” amendment. Commissioner Candice C. Wong said, “Today’s amendment allows compassionate release to be the vehicle for applying retroactively the very reductions that Congress has said by statute should not apply retroactively.”

Commissioner Claira Boom Horn, who is a sitting US District Court Judge in Kentucky, observed that “nothing in the First Step Act – literally nothing, not text, not legislative history – indicates any intention on Congress’s part to expand the substantive criteria for granting compassionate release, much less to fundamentally change the nature of compassionate release to encompass for the first time factors other than the defendant’s personal or family circumstances. The Supreme Court tells us that Congress does not hide elephants in mouseholes and it did not do so here.”

Commissioner Claire McCusker Murray said, “The seismic expansion of compassionate release promulgated today not only saddles judges with the task of interpreting a free will catch-all but also ensures a flood of motions, a flood that will then repeat anytime there is a nonretroactive change in the law. For the past several years, while the Commission lacked a quorum to implement the First Step Act, the country has experienced a natural experiment in what happens when judges have no operative guidance as to the criteria they should apply in deciding release motions. The result has been widespread disparities. In Fiscal Year 2022, for example, the most generous circuit granted 35% of compassionate release motions, the most cautious granted only 2.5%. The disparities within circuits and even within courthouses were often just as stark. We fear that with today’s dramatic vague and ultimately unlawful expansion of compassionate release that we… will expect far more of the same.”

Commissioner John Gleeson, a retired US District Court judge and Wall Street law firm partner, disagreed: “[The amendment’s] common sense guidance is fully consistent with separation of powers principles, our authority as the Sentencing Commission, and with the First Step Act. Most importantly, it will ensure that § 3582(c)(1)(A) of Title 18 of the United States Code serves one of the purposes Congress explicitly intended it to serve when that law is enacted almost 40 years ago: to provide a needed transparent judicial second look at unusually long sentences that in fairness should be reduced.”

noteasycongress221212Congress may veto one or more of the Guidelines proposals between now and November 1, 2023. That has only once before, when Congress voted down a guideline lessening the crack/cocaine disparity in 2005. Congress is pretty busy, and both the Senate and House are pretty evenly split politically, but the extent of the disagreement at the Commission gives cause for concern. If Congress does veto, it is unclear whether would focus solely on the “unusually long sentence” subsection of new § 1B1.13, or whether the entire amended Guideline would be jettisoned.

In other action, the Commission had been considering an amendment that prohibited courts from imposing longer sentences based on alleged crimes of which a defendant had been acquitted. Commission Chairman Carleton Reeves, a federal district judge from the Southern District of Mississippi, said the Commission needs more time before making a final determination on the issue.

Reuters reported that Michael P. Heiskell, President-Elect of the National Association of Criminal Defense Lawyers, said he was disappointed by the delay. “Permitting people to be sentenced based on conduct for which a jury has acquitted them is fundamentally unfair because it eviscerates the constitutional right to trial and disrespects the jury’s role,” he said in a statement.

However, the Commission’s delay may rejuvenate the McClinton v. United States petition for certiorari, which the Supreme Court has been sitting on at the suggestion of the Dept of Justice, awaiting Sentencing Commission action on acquitted conduct. A Supreme Court decision that use of acquitted conduct in sentencing is unconstitutional would benefit many more people than would a prospective Guidelines change.

The USSC also adopted a criminal history amendment that eliminates “status points” (sometimes called “recency points”) – additional criminal history points assessed if the defendant committed the current crime within two years of release for a prior crime – and grants a 2-level downward adjustment to a defendant’s offense level if he or she had zero criminal history points and met other criteria.

The Commission also approved an amendment to criminal history commentary advising judges to treat prior marijuana possession offenses more leniently in the criminal history calculus, making downward adjustments for offenses now seen as lawful by many states.

The proposal doesn’t seek to remove marijuana convictions as a criminal history factor entirely, but it would revise commentary within the guidelines to “include sentences resulting from possession of marihuana offenses as an example of when a downward departure from the defendant’s criminal history may be warranted,” according to a synopsis.

usscretro230406None of the Guidelines changes is retroactive without specific Commission determination that they should be. The USSC yesterday issued a notice that it will consider, pursuant to 18 USC § 3582(c)(2) and 28 USC § 994(u), whether Guidelines changes on “status points” and the “zero criminal history points” adjustment should be retroactive, and ask for public comment on the matter.

Although the Guidelines amendments do not become effective until November, most federal circuits have declared that – while the current § 1B1.13 is not binding on district courts because it is pre-First Step – courts should consider it to express the opinion of an agency expert in sentencing. The amended § 1B1.13 has every bit of the authority that the current non-binding § 1B1.13 has, and it has the additional benefit of being evidence of current Sentencing Commission thought.

USSC, Adopted Amendments (Effective November 1, 2023) (April 5, 2023)

USSC, Issue For Comment On Retroactivity Of Criminal History Amendment (April 5, 2023)

Reuters, U.S. panel votes to expand compassionate release for prisoners (April 5, 2023)

Marijuana Moment, Federal Sentencing Commission Approves New Marijuana Guidelines For Judges To Treat Past Convictions More Leniently (April 5, 2023)

– Thomas L. Root

U.S. Sentencing Commission’s In A Hurry to Get Things Done – Update for March 27, 2023

Leave a comment

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 ROCKET DOCKET

rocket190620Showing that a federal prisoner has an ‘extraordinary and compelling’ reason for grant of compassionate release is critical to getting a sentence reduction grant under 18 USC § 3582(c)(1)(A). That statute also requires that any grant be consistent with “applicable policy statements” of the U.S. Sentencing Commission.

This is where it’s been sticky. The USSC has one policy statement (USSG § 1B1.13) addressing compassionate release, adopted well before the compassionate release statute was changed by the First Step Act. The same month Congress passed First Step (December 2018), the USSC lost its quorum as multiple members’ terms expired. President Trump nominated some new members a few months later, but the Senate did not approve them. That condition lasted until last spring, when President Biden nominated a complete slate of new members.

USSC2300327Without a quorum, the USSC could not modify § 1B1.13 to account for the changes that First Step made in the § 3582(c)(1)(A). Almost all courts responded by holding that the old § 1B1.13 was no longer an “applicable policy statement” and thus didn’t bind the courts. In a way, that was liberating to the people filing compassionate release motions, because courts were freed from § 1B1.13’s restrictive definition of what constituted “extraordinary and compelling” reasons.

But without a USSC policy statement moderating district court responses, compassionate release grants since 2019 have been characterized by wide disparity. In Oregon, for instance, about 62% of compassionate release filings have been granted. In the Middle District of Georgia, on the other hand, only about 1.5% have been granted.

The new USSC said last its top priority was to amend § 1B1.13, and in January, the Commission issued a draft § 1B1.13 for public comment that contained some very prisoner-friendly proposals and options. The proposed change was part of an extensive set of draft Guidelines amendments that spanned more than a hundred pages of text. The public comment period ended two weeks ago, with over 1,600 pages of comments filed on the compassionate release proposal alone.

The USSC usually rolls out its proposal Guidelines amendments by May 1st. Under 28 USC § 994(p), the amendments go to Congress, which then has 180 days to reject them. If Congress does nothing (which is almost always the case), the changes become effective.

Iminahurry230327But this new USSC is in a hurry to get things done. Last week, the Commission announced an April 5 meeting at which the final § 1B1.13 (and all of the other draft proposed amendments) will be adopted.

If the amendment package goes to Congress that same day, they could become effective as early as Monday, Oct 2nd.

USSC, Public Meeting – April 5, 2023 (March 24, 2023)

– Thomas L. Root

DOJ Called Out On Two-Faced Acquitted Conduct Position – Update for March 13, 2023

Leave a comment

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

DOJ SPEAKS WITH FORKED TONGUE

In late January, the Department of Justice got the Supreme Court to place a hold on four petitions for certiorari that, if granted, would have the Court decide whether acquitted conduct can be used in sentencing. DOJ pulled this off by promising SCOTUS that the proposed Guidelines amendments were going to fix the problem.

Then, DOJ showed up at the Sentencing Commission to tell it that it lacked the power to make the acquitted conduct change. Last week, the Supreme Court petitioner cried foul.

Acquitted conduct sentencing is a district court’s use of conduct a jury had acquitted a defendant of in setting Guidelines and deciding whether to depart from those Guidelines in sentencing a defendant.

Real-life example: Last week, the 7th Circuit upheld Phillip Robinson’s sentence. Phil was charged with a drug distribution conspiracy and an 18 USC § 924(c) for using a gun during a drug transaction. The jury convicted him of the drug conspiracy but acquitted him on the § 924(c). At sentencing, the district court pumped up Phil’s Guidelines for possessing a gun “in connection with the cocaine conspiracy.” The Circuit said that under the Supreme Court’s 1997 United States v. Watts decision, using the acquitted conduct to enhance Phil’s sentence is fine.

The petitions in front of SCOTUS, led by McClinton v United States, argue that sentencing defendants based on conduct a jury acquitted them of violates the 6th Amendment. The Supremes have relisted McClinton multiple times (“relisting” meaning the justices have considered the petitions at their weekly conference and then deferred a decision to the next conference, a “relist” meaning that the petition have substantial support).

On January 12th, the Sentencing Commission rolled out its draft proposed Guidelines amendments for public comment. One of them would ban the use of acquitted conduct in setting Guidelines levels. If adopted, the change would mean that Phil’s Guidelines would be set based only on the coke conspiracy without reference to the gun.

nothingtosee230313In response, DOJ told the Supreme Court that “[t]his Court’s intervention” was not “necessary to address” the widespread problem of acquitted-conduct sentencing because “the Sentencing Commission could promulgate guidelines to preclude such reliance.”

A few weeks later, DOJ told the Sentencing Commission that it could not amend the Guidelines to curtail the use of acquitted conduct at federal sentencing. DOJ argued that USSC lacked the power to adopt the amendment. The proposal “would be a significant departure from long-standing sentencing practice” because the Supreme Court “has continued to affirm [in Watts] that there are no limitations on the information concerning a defendant’s background, character, and conduct that courts may consider in determining an appropriate sentence.”

McClinton has fired back that DOJ’s “expansive reading of Watts” in front of the Sentencing Commission “is deeply at odds with the far more limited understanding the government has presented to this Court… And contrary to its assurances to this Court, DOJ now contends that the Sentencing Commission lacks authority to promulgate amendments addressing the practice.”

two-faced230313Reuters said last week that DOJ’s position on this issue “does not square with agency leadership and President Joe Biden’s forceful commitments to addressing racism in the justice system and reducing mass incarceration.”

True, but what is more notable is that DOJ can tell the Supreme Court to deny McClinton review because the USSC is going to fix the acquitted conduct problem while at the same time telling USSC that it is not allowed to fix the problem. The government has prosecuted people for less duplicity than that.

Letter of DOJ to Supreme Court, Case No 21-1557, January 18, 2023)

United States v. Robinson, Case No 22-1472, 2023 USAppLEXIS 5625 (7th Cir, March 9, 2023)

Supplemental Brief of Dayonta McClinton, Case No 21-1557 (Supreme Ct, March 7, 2023)

United States v. Watts, 519 US 148 (1997)

Reuters, U.S. Justice Dept takes a hard line on sentencing reform (March 7, 2023)

Sentencing Law and Policy, DOJ testimony to Sentencing Commission on acquitted conduct sentencing generates notable responses (March 8, 2023)

– Thomas L. Root

Did DOJ Sandbag McClinton Cert Petition? – Update for February 21, 2023

Leave a comment

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

A COUPLE OF SCOTUS RELISTS COME UP TODAY

relist230221Last week, I reported that the Supreme Court would again take up McClinton v. United States – a case on using acquitted conduct at sentencing – at last Friday’s conference. We won’t know the conference’s outcome until today at 9:30 am EST, but last week, SCOTUSblog.com had an interesting spin on the repeated McClinton relistings.

John Elwood, one of Dayonta McClinton’s lawyers and a regular SCOTUSblog contributor, wrote that McClinton and four other cases raising the same issue “are just sitting there on the court’s docket… [A]s near as we can tell, the court appears to be holding those cases to see whether the US Sentencing Commission acts on a pending proposal to place restrictions on federal courts’ consideration of acquitted conduct at sentencing.”

How come? It seems the Solicitor General wrote to the Court in January, alerting it to the Commission’s acquitted conduct proposal and implying that the Guidelines change would solve the problem, making the grant of McClinton’s constitutional challenge to acquitted conduct superfluous.

inaction230221Dayonta McClinton has argued that the USSC proposal is “woefully inadequate to resolve the issue, but it still may explain the court’s inaction,” Elwood wrote. “Things may become clearer down the road.”

Another new relist, Davis v. United States, raises a fascinating 28 USC § 2255 question: Quartavious Davis got 159 years for a string of armed Hobbs Act robberies. His two co-defendants signed plea deals and got about a tenth of that time. Quart argues his attorney was ineffective by not negotiating the same kind of plea agreement with the government. His district court denied the post-conviction petition, holding that Quart could not prove that he would have gotten a plea deal if his lawyer had advocated for one.

Quart contends it should be enough to show that similarly-situated co-defendants got plea deals, which – he argues – suggests there is no reason the government would not have given him the same benefit. The 11th Circuit disagreed, holding that he could not show prejudice absent making some showing that the government had offered him a plea deal.

catch22-230221The petition raises the Catch-22 that informs a lot of § 2255 post-conviction arguments. Under the case that shaped modern federal habeas corpus claims directed at the constitutionality of federal convictions and sentences – Strickland v. Washington – in order to make a prima facie showing that a movant is entitled to a hearing, the prisoner has to show his or her lawyer goofed, and that but for the goof, there is a reasonable probability that the goof affected the outcome.

Here, Quart has argued that probability favors his claim that the government would have made a plea offer: after all, his two co-defendants – whose culpability was little different than his own – got plea deals. Unsurprising, inasmuch as 94% of federal prosecutions end in plea deals. But the government argues that he could not prove that the government would have made an offer, so he should be denied the very hearing that he needs to prove the government would have made an offer.

Catch-22. To be entitled to a hearing that could prove an element of his claim, the movant must prove the element.

We’ll see whether the Supreme Court is interested in a case that could sharpen the definition of “reasonable probability” as used in Strickland.

McClinton v. United States, Case No. 21-1557 (certiorari filed March 15, 2022)

Davis v. United States, Case No. 22-5364 (certiorari filed August 8, 2022)

Strickland v. Washington, 466 U.S. 668 (1984)

SCOTUSblog.com, Plea bargaining and a high-profile separation-of-powers case (February 15, 2023)

JDSupra, Sentencing Guidelines Amendment Would Preclude Acquitted Conduct from Being Used at Sentencing (January 30, 2023)

– Thomas L. Root