Tag Archives: sentencing

2nd Circuit Unscrooges Illegal Reentry Sentence – Update for December 21, 2017

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


Latchman Singh, a native of the South American paradise of Guyana, lived in the United States for 39 years before a stealing-the-mail beef got him deported. His American wife and daughter stayed here, so of course he returned illegally to be with them. What dutiful father and husband would not?

He got caught and thrown out. He came back again, and this time was convicted of illegal reentry, with a Guidelines range of 15-21 months.

hammer171221So far, it does not sound like a very exciting case: the defense, the probation officer and the government all thought Latchman should get something within his Guidelines sentencing range. But Judge Katherine Forrest, who was appointed by Obama but acts a lot like Trump, mistook Latchman for Al Capone. She varied upward on his sentence to 60 months, the maximum she could give him under the law.

Among other vexations, the Judge thought Latchman’s heartfelt letter to her that, among other things, explained that some of his 20-year old minor theft convictions resulted from “Bad Friend and Company who I follow,” showed he had not accepted responsibility. She fumed  that “the kinds of crimes he is engaged in relate to a variety of conduct which is harmful, and it is harmful to members of the public. The public shouldn’t be exposed to it. It’s repeated and it’s repeated so often and so brazenly that I do not have any hope. I have no expectation, frankly, that it could stop.”

forrest171221And conservatives complained Obama’s judges were too soft? Apparently, Judge Forrest – who, despite her Obama-esque credentials, has been described by legal commentators as “stinking rich” – lacks sufficient empathy for an illegal immigrant scrambling to support his pathetic little family in their pathetic little apartment. Whatever the roots of her rant, Judge Forrest’s Scrooge imitation was too much even for the 2nd Circuit, which reversed the sentence last week. As the Court of Appeals put it,   “even if Singh’s sentence does not shock the conscience, it at the very least stirs the conscience.”  It might even stir Judge Forrest’s privileged conscience (if she has one).

The appellate panel  observed that nationally, upward variances in illegal reentry cases only happened 1% of the time, and Latchman’s criminal history – which Judge Forrest found to be extreme – was only a Category II, while the average illegal reentry defendant was a Category III. Latchman had eight prior convictions, but four of them were over 20 years old, and three of the eight were so minor he got neither jail nor probation.

scrooge171221Not only was the upward variance to four times his Guidelines minimum not substantively reasonable, the 2nd Circuit said, but the district judge’s handling of the acceptance of responsibility factor was not procedurally reasonable. The panel cautioned that a judge should not confuse “statements in mitigation with a failure to accept responsibility.” Latchman admitted he had committed wrongdoing, but explained he was influenced by a bad crowd and did foolish things. He said he came back to the USA because he was robbed and beaten in Guyana because of his Indian subcontinent heritage. “A defendant’s acceptance of responsibility and his assertion of mitigating circumstances,” the Circuit said, “are not necessarily inconsistent or incompatible.” While the district judge said she was giving Latchman acceptance-of-responsibility credit under the Guidelines, she pretty clearly took it away in her comments on the upward variance.

The Circuit did not assign the case to a new judge, pointedly saying, “we are confident that on remand the experienced and capable district judge will conduct a full resentencing, in compliance with all procedural requirements, and impose a sentence that is fair, reasonable, and sufficient but not longer than necessary to meet the goals of justice.”

Um, we think that’s a hint, Judge Forrest.

United States v. Singh, Case No. 16-1111 (2nd Cir. Dec. 12, 2017)

– Thomas L. Root


Dog Bites Man – Federal Sentencing Said to Be Racially Tinged – Update for November 16, 2017

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


blackprisoner171116While this hardly comes as much of a comfort to you if you’re already serving one, a United States Sentencing Commission report issued last week found that, statistically speaking, your sentence is longer if you’re black than if you’re white, or if you’re a male instead of a female.

The report compares sentences handed down to similarly situated people between October 2011 and September 2016. Its key findings are

• black males continue to catch sentences that are 19% longer than those imposed on white males. The average black male sentence of about 92 months in 2007 has fallen to about 75 months, mostly because of changes in crack cocaine sentencing ranges, while white male sentences have risen slightly from 58 to 64 months. But when the data are adjusted for the effect of the Fair Sentencing Act, the gap between black and white sentences is unchanged since 2007.

• sentence departures and variances given for reasons other than assistance to the government are the principal culprits. During the period, black males were 21% less likely than whites to get a downward departure or variance, and when they did get one, their sentences were still 17% longer on the average. When the courts sentenced within the sentencing range, black male sentences were still 8% longer than those of whites.

• violence did account for any of the demographic differences in sentencing. Violent black male sentences were on average 20% longer than violent white male sentences.

• females received shorter sentences than males during the period, unchanged from every year since 2003. White and Hispanic women received 26% shorter sentences than males, and black women got 21% shorter sentences. These rates suggest while there is a racial sentencing disparity for women, its smaller than for men.

• non-citizens got longer sentences than similarly situated citizens, but education didn’t make a difference.

guy171116The 2003 PROTECT Act (which defendants generally disliked) drove the racial disparity down to 6%, but after United States v. Booker – which made the Guidelines advisory – the difference between black and white male sentences increased by 10%. The pronounced disparity between white and non-white offenders may be partially attributable to the lack of a strict, rational sentencing scheme. When judges use their discretion, implicit racial and gender biases may show.

US Sentencing Commission, Demographic Differences in Sentencing: An Update to the 2012 Booker Report (Nov. 13, 2017)

– Thomas L. Root


A Shot Across DOJ’s Bow – Update for May 19, 2017

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


shot170522In an obvious shot across the Trump Administration’s bow, Senators Rand Paul (R-Kentucky), Patrick Leahy (D-Vermont) and Jeff Merkley (D-Oregon) on Tuesday reintroduced the Justice Safety Valve Act, S. 1127. Representatives Bobby Scott (D-Virginia) and Thomas Massie (R-Kentucky) did the same in the House of Representatives with H.R. 2435.

Earlier this week, Attorney General Jeff Sessions ordered federal prosecutors to bring the most serious charges and maximum sentences in their cases, meaning stricter enforcement of mandatory minimum sentences that was the rule under the Bush and most of the Obama administrations. The Justice Safety Valve Act would act as a check on that, giving federal judges discretion to impose sentences below mandatory minimums where they believed it necessary to honor the sentencing factors of 18 U.S.C. § 3553(a).

Attorney General Jefferson Beauregard Sessions III
      Attorney General Jefferson Beauregard Sessions III

“Mandatory minimum sentences disproportionally affect minorities and low-income communities, while doing little to keep us safe and turning mistakes into tragedies,” Paul said in a press release. “As this legislation demonstrates, Congress can come together in a bipartisan fashion to change these laws.”

Scott said, “Attorney General Sessions’ directive to all federal prosecutors to charge the most serious offenses, including mandatory minimums, ignores the fact that mandatory minimum sentences have been studied extensively and have been found to distort rational sentencing systems, discriminate against minorities, waste money, and often require a judge to impose sentences that violate common sense. To add insult to injury, studies have shown that mandatory minimum sentences fail to reduce crime. Our bill will give discretion back to federal judges, so that they can consider all the facts, issues, and circumstances before sentencing.”

The legislative equivalent of this...
     The legislative equivalent of this…

Although called “The Justice Safety Valve Act,” the bills do not really extend the “safety valve” provision in § 3553(f), which is a good thing. Section 3553(f) limits its application to people meeting a restrictive criteria. Instead, as presently drafted, the bill simply expands a judge’s discretion without any limitations imposed beyond those guiding courts under § 3553(a). In fact, the measures as written would strip away the last compulsory restrictions hold judges back from using discretion.

Paul acknowledged to reporters that lawmakers will have an “uphill battle” getting support from the White House for the sentencing reform bill. As a Republican senator, Sessions was a leading opponent of last year’s sentencing reform legislation. But with the bright star of the new Administration fading rapidly, Sessions’ views may be less and less relevant, and indeed, the harder he pushes law and order, the more Congress might be convinced to pass sentencing reform.

Press Release, Paul, Leahy, Merkley, Scott, & Massie Lead Bipartisan, Bicameral Introduction of the Justice Safety Valve Act (May 16, 2017)

Washington Post, Bipartisan group of senators push back on Sessions’s order to pursue most severe penalties (May 17, 2017)

– Thomas L. Root


How Much Explanation is Enough? – Update for March 3, 2017

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


Many of us vowed that when we became parents, we would never dismiss our kids’ demand for an explanation with the peremptory ipse dixit “because I said so.” And just as many of us kept that promise only until our children began to talk.

Saidso170303There was a time when a judge only had a statutory sentencing range, and could sentence anywhere within the range on any whim he or she had. The judge could slap someone with 10 years, and the heavy lifting of figuring out where within that 10-year period the prisoner was released fell to the Parole Commission.

The Sentencing Guidelines, now approaching 30 years of age, changed all of that. The judge now did all the work, assigning a criminal history score to the defendant, determining the total offense level in points, and then using a matrix to determine a sentencing range. The range – much narrower that the statutory punishment specified in the U.S. Code – left the court with scant discretion. A crime might carry a 0-10 year statutory sentencing range, but the Guidelines gave the court a sentencing range of 71-87 months.

With the district court’s greater involvement in the sentencing calculus came greater demands that the district court do more than just impose a sentence without an explanation, the “because I say so” approach. After United States v. Booker made the Guidelines “advisory” – giving back to the judges some of the discretion the Guidelines had originally taken away – a collection of Supreme Court cases laid down the requirements that sentences be “procedurally reasonable” (that the Guidelines be calculated accurately) and that they likewise be “substantively reasonable,” in other words, not appear to be too unfair.

Because courts of appeal cannot review a sentence for reasonableness without knowing why the district court decided on the sentence it imposed, appellate courts imposed on trial judges the responsibility to explain their sentencing decisions rather than imposing a sentence simply because the judge says so.

A group hug of legislators is not nearly as cute...
A group hug of legislators is not nearly as cute...

Mark Wireman, a serial kiddie porn offender, had a sentencing range of 210-262 months, due to his lengthy criminal history, and to the child porn Guidelines, which pile on enhancements for number of images stored, for use of a computer, and a host of other offense attributes that apply in virtually every kid porn offense. There is little doubt that society finds child pornography odious. Congress certainly finds it an issue that draws lawmakers of both parties into a group hug and chorus of “kumbaya,” followed by unanimously-passed legislation in which each legislator tries to out-tough the other in being harsh on kiddie porn.

As a result, most of the child porn Guidelines were written not after a reasoned consideration of data but because Congress, in a bipartisan tough-on-porn frenzy, dictated how it should read. More than one court has complained that it should have to pay deference to the Draconian sentences recommended by the child-porn Guidelines, because those Guidelines were not data-driven.

Mark was lucky enough to have a team of public defenders representing him. As a group, federal public defenders deliver spirited and experienced representation seldom seen in retained counsel until one gets to blue-chip law firms. Mark’s defenders wrote a top-drawer sentencing memorandum that the policy underlying the child porn Guidelines was flawed:

First, that § 2G2.2(a)(2)’s base offense level of 22 is “harsher than necessary” under the 18 U.S.C. § 3553(a) sentencing factors; second, that courts should be hesitant to rely on § 2G2.2 because the Sentencing Commission did not depend on empirical data when drafting §  2G2.2; and third, that the Specific Offense Characteristics outlined in § 2G2.2 are utilized so often ‘that they apply in nearly every child-pornography case’ and therefore fail to distinguish between various offenders.

Mark also that his own circumstances – including a traumatizing childhood where he was repeatedly sexually abused by family members and the fact that in this case he shared a relatively small amount of child pornography with only one other – of warranted a downward variance from this excessive guideline range.

The sentencing court said, “Frankly, I’m struggling with a lot of the issues that have been raised in… Defendant’s counsel’s memorandum…” but made no further reference to the filing. Ultimately, the court, concerned with the risk that Mark would keep committing the same or similar offenses, sentenced him within the advisory Guidelines range to 240 months.

This week, the 10th Circuit affirmed the sentence, rejecting Mark’s complaints that the district court ignored his counsel’s sentencing memorandum. Specifically, Mark argued that where the defendant attacked the Guidelines on policy grounds – an attack becoming increasingly common in child sex cases – a district court is obligated to address the claim.

kittyporn160829The 10th disagreed, nothing that while “a district court must explain its reasons for rejecting a defendant’s nonfrivolous arguments for a more lenient sentence,” and while a district court may even “vary from the Sentencing Guidelines based on a policy disagreement with those Guidelines,” the manner in which a district court must explain its reasons for rejecting a defendant’s arguments is not “set in stone across all cases.” Where, as in this case, “the district court has imposed a sentence within the Guidelines, our cases have noted that the district court need not specifically address and reject each of the defendant’s arguments for leniency so long as the court somehow indicates that it did not rest on the guidelines alone, but considered whether the guideline sentence actually conforms, in the circumstances, to the 18 U.S.C. § 3553(a) statutory factors.”

The Circuit said it was “not persuaded that the principle we note… that a district court need not specifically address and instead may functionally reject a defendant’s arguments for leniency when it sentences him within the Guidelines range — should differ just because the defendant critiques the applicable Guideline itself on policy grounds, as Defendant does in the case before us today. In our circuit, a within- guideline-range sentence that the district court properly calculated… is entitled to a rebuttable presumption of reasonableness on appeal… We would be disregarding the spirit of this appellate presumption if we were to require the district court to defend § 2G2.2 or any other Guideline that leads to such a presumptively reasonable sentence.”

United States v. Wireman, Case No. 15-3291 (10th Circuit, Feb. 28, 2017)

– Thomas L. Root


What’s in a Name? – Update for February 24, 2017

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


Bruce Swisshelm signed a plea agreement to resolve his bank fraud indictment. It included the fairly Government promise not to argue for a sentence above the top of the Guideline range, and the defendant would not argue for a sentence below the bottom.

rose170224Bruce’s sentencing range was 57-71 months, but his attorney vigorously argued for a downward variance and bombarded the court with letters from the community attesting to the fact that Bruce was a great guy. The Government objected to her tactics, arguing that defense counsel’s arguments and the letters violated the plea agreement. Bruce’s lawyer disagreed, saying the agreement only prohibited her from arguing for a downward departure, and all she was asking for was a variance.

Variance, departure? A difference, is it not? Bruce’s attorney was undoubtedly emulating Renaissance lawyer Juliet, who once argued, “What’s in a name? That which we call a rose, By any other name would smell as sweet.” And there is little doubt the judge found her arguments as sweet as a rose: despite the 57-71 month Guidelines range and the terms of the plea agreement, the court sentenced Bruce to 12 months and a day.

The Government appealed, arguing in essence, “Lord, what fools these mortals be” if they think they did not breach the plea agreement. Earlier this week, the 8th Circuit agreed.

Defense counsel just wanted the court to picture her client in the best possible light.
          Defense counsel just wanted the court to picture her client in the best possible light.

The Court of Appeals admitted that there are a lot of case out there holding  what’s to be done when the Government breaches a plea agreement, but that it had never decided the appropriate remedy when the defendant violates the deal. The Court said, “We do not now decide the proper remedy for any future defendant’s breach of a plea agreement, but in the particular circumstances of this case we decline to treat Swisshelm’s breach of the plea agreement differently from a breach by the government.”

A governmental breach of a plea deal always carries with it constitutional due process concerns. Those concerns are not present in where the breaching party is the defendant, but “principles of contract interpretation” nevertheless causes the Court to hold Bruce “accountable to the terms of the plea agreement. The parties agreed that they would not request a sentence outside the Guidelines range, and the government agreed not to pursue the several additional charges and Guidelines enhancements it could have lodged against Swisshelm in return for his guilty plea… Swisshelm thus received the benefit of the plea agreement—the government’s forbearance from seeking an above-Guidelines sentence—but deprived the government of its corresponding bargained-for benefit—Swisshelm’s forbearance from seeking a below-Guidelines sentence. “

Defense attorneys know that some clients just can't be prettied up at sentencing, no matter how hard one tries...
     Defense attorneys know that some clients just can’t be prettied up at sentencing, no matter how hard one tries…

The Court ordered resentencing in front of a different judge, which is precisely the remedy Bruce would have gotten if the Government had breached. Bruce – who had to think he had a real soft-touch sitting on the bench – complained that a different judge was hardly necessary and that his breach had been harmless. Doing the math, the 8th figured that a decrease in sentence from 57 months to 12 months was quote material. It said the different judge “may in the exercise of discretion consider the letters submitted on Swisshelm’s behalf for the purpose of determining a sentence within the Guidelines range, but not for the purpose of considering a downward departure or variance from the Guidelines range.”

The Court noted that appointment of a new judge in cases like this is standard, and was “in no sense to question the fairness of the sentencing judge; the fault here rests on the defendant, not on the sentencing judge.”

Bruce can’t be thinking that “All’s well that ends well.” He’s already served his 12-month sentence, and was just released last month. He’s now looking to going back for another 45 months, at least.

United States v. Swisshelm, Case No. 16-1416 (8th Circuit, February 22, 2017)

 – Thomas L. Root


Sentencing Reform has Quite a Week for a Corpse – Update for February 3, 2017

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


phoenix170203Congressman Bob Goodlatte (R-Virginia), chairman of the House Judiciary Committee, said yesterday that his agenda for the 115th Congress includes comprehensive sentencing reform, which was subject of a two year-long bipartisan push in both houses of the 114th Congress before being run down and killed by the 2016 elections.

Speaking to the Federalist Society at the National Press Club, Goodlatte said, “Both Ranking Member Conyers and I remain committed to passing bipartisan criminal justice reform. We must rein in the explosion of federal criminal laws, protect innocent citizens’ property from unlawful seizures, and enact forensics reforms to identify the guilty and quickly exonerate the innocent. We must also reform sentencing laws in a responsible way and improve the prison system and reentry programs to reduce recidivism.”

Goodlatte’s announcement bookends a week that began with House Oversight Committee Chairman Jason Chaffetz (R-Utah) saying that criminal-sentencing reform proponents in Congress are optimistic that Vice President Mike Pence will be an ally, helping them to work with the Trump administration to pass sentence reform legislation.

“I’ve got reason to be hopeful,” Chaffetz told reporters at a morning session of the Seminar Network, a group of libertarian and conservative donors gathered in Palm Springs by Charles and David Koch.

Senator Sessions as AG – Don't expect that you've got anything coming.
      Incoming Attorney General Sessions – no friend of sentencing reform.

Even as Congressional Republicans started sliding sentencing reform onto the front burner, CNN darkly warned that “the future of criminal justice reform hangs in the balance as the nomination of Alabama Sen. Jeff Sessions, President Donald Trump’s pick for attorney general” was approved in a party-line vote by the Senate Judiciary Committee. CNN cited unidentified “activists” who worried that Trump would “halt former President Barack Obama’s reforms, and institute new policies that could worsen conditions.”

We’re not sure what planet CNN has been on, but we’re fairly confident that Obama’s only criminal justice “reform” of note in eight years – unless you include his arbitrary and gimmicky clemency lottery – was passage of the Fair Sentencing Act of 2010. And as for that, Sessions not only voted for the Act, but in fact worked with Sen. Dick Durbin (D-Illinois) in gaining its passage. That Act reduced the sentencing disparity between offenses for crack and powder cocaine from 100:1 to 18:1, a change widely seen as benefitting minorities, whom were statistically more likely to be involved with crack than with the standard powder. Obama loved to talk a good game, but his Administration promised much (remember Eric Holder’s grand “working group to examine Federal sentencing and corrections policy” announced with fanfare in 2009, only to disappear in the Washington swamp, never to be heard from again?) but delivered damn little.

None of this is to suggest that Trump or Sessions share enlightened views on sentencing reform. To the contrary: Trump branded many of the federal prisoners receiving clemency as “bad dudes,” a label applied in usual Trumpian fashion with little reflection and no investigation. As a senator, Sessions was one of the early and vociferous opponents of the Sentence Reform and Corrections Act of 2015, contending that it would “release many dangerous criminals back into American streets.”

President Trump says they're coming to a street corner near you .
     President Trump says they’re coming to a street corner near you

This might be a plus. With Sessions no longer in the Senate to organize an uber-conservative revolt against sentencing reform, Sen. Tom Cotton (R-Arkansas) will stand virtually alone in trying to derail sentence reform. Sure, Sessions may still be against it, but he’ll have much bigger fish to fry over at 9th and Constitution, running the 113,500 employees at DOJ.

As for Trump, will he be an impediment to bipartisan sentencing reform? Who can predict anything with the famously impulsive President? It is noteworthy, however, to observe that last Tuesday in introducing Judge Neil Gorsuch as his nominee for Justice Antonin Scalia’s seat on the Supreme Court, Trump noted of Judge Gorsuch: “While in law school, he demonstrated a commitment to helping the less fortunate. He worked in both Harvard Prison Legal Assistance Projects and Harvard Defenders Program.”

Ohio State University law professor Doug Berman, who writes the Sentencing Law and Policy blog, found it “quite notable that… Prez Trump would stress this history.” Could it be that the President would not be as inalterably opposed to federal sentencing reform as some “activists” might fear?

– Thomas L. Root


So What If I Was Wrong? – Update for February 2, 2017

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


Steve Schenian pled guilty to drug trafficking charges. As he approached his sentencing date, Steve – who had done a lot of sampling of his illegal wares – decided to change his ways.

No surprise there. A lot of defendants experience what is colloquially known as a “jailhouse conversion.” Most defendants’ claims that they’ve cleaned up their act lasts until they’re released, if that long. A few don’t even make it to sentencing. And the judges – who have heard it all before – usually don’t buy it.

Steve's jailhouse conversion may have been real, but the government's screwup stole any credit Steve might have otherwise gotten...
      Steve’s jailhouse conversion may have been real, but the government’s screwup stole any credit he might have otherwise gotten…

Steve had convinced his girlfriend to smuggle some drugs to him in jail, but he later told the probation officer writing his Presentence Report that he had given that up, that he wanted to “turn his life around.” Unfortunately for Steve, the government ratted him out: a urine sample collected the evening before sentencing showed that he had one illegal drug in his system.

When imposing sentence the judge did not mention the previous night’s test but did deem it significant that Steve had continued using drugs while in custody. The judge rejected Steve’s sentencing proposal, and went with the government’s recommended 144 months.

The drug test was especially unfortunate for Steve, because – while the results were accurate – the prosecutor was not. He had misinterpreted raw data from the test, which, if read correctly, would show Steve was as clean as Phoebe Snow. Eight days after Steve’s sentencing, the prosecutor sent letters to the court and Steve’s lawyer disclosing the error.

phoebe170202The district court promptly issued an order saying that it “has considered the correction of information conveyed in the [government’s]… letter. The Court remains convinced that the original sentence imposed in this case was sufficient but not greater than necessary to accomplish the purpose of sentencing. None of the facts contained in that letter would lead the Court to alter its decision.”

Steve nevertheless moved for resentencing under Fed.R.Crim.P. 35(a), which lets a district court correct a sentence within 14 days after sentencing, when the original sentence “resulted from arithmetical, technical, or other clear error.” The district court denied his motion.

Earlier this week, the 7th Circuit agreed. It held that if the district judge thought the sentence had been influenced by a false belief that Steve was on drugs the night before sentencing, that belief would have been a “clear error” that would have allowed the judge to fix the problem. The Circuit said “a mistakenly high sentence cannot be called an “arithmetical” or “technical” gaffe, but an error it would be – and if the error was clear only in hindsight, still it would be ‘clear error’.” After all, the appellate court said, the purpose of Rule 35(a) is to let judges “fix errors that otherwise would be bound to produce reversal.”

Steve’s problem, the Circuit said, “is that the district judge did not rely on the false information, so there was no judicial error. The prosecutor made an error, and that error was clear in retrospect (once the lab released its report). But Rule 35(a) does not authorize a judge to revise a sentence because one of the litigants has made a mistake. It authorizes the court to fix sentences affected by its own errors, whether they be arithmetical, technical, or otherwise “clear”. Once a judge has decided that the sentence is unaffected by error, there is no need for a do-over.”

While we would be the last to suggest that district judge cannot be taken at his or her word, it taxes credulity that a district court sentencing a drug-dealing defendant who had professed a “jailhouse conversion” to clean living would not be influenced by finding out the guy standing in front of the judge was stoned. The Circuit complained that “a remand for further proceedings would waste everyone’s time,” but this seems a case where the public’s confidence in the integrity of the criminal process would be served by resentencing in front of a different judge (which is the course followed when the government breaches a plea agreement by providing information at sentencing it promised not to).

Sandbagged at sentencing...
               Sandbagged at sentencing…

The government was wrong in its claim, perhaps negligently or recklessly. But regardless of degree of fault, the defendant was sandbagged by a claim that was not only false, but one he had neither the time nor the resources to address.

United States v. Schenian, Case No. 16-3132 (7th Cir., Jan. 30, 2017)

– Thomas L. Root


Careless Whisper: 1st Circuit Says Judge and Probation Officer’s Sidebar Without Defense Present is Fine – Update for February 1, 2017

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


Dan Bramley was convicted of a drug-trafficking offense. He didn’t have much for an appellate attorney to work with, leading to what the First Circuit called a “rifle-shot appeal.”

advice170201Dan’s complaint was a simple one. Twice during the sentencing, the judge paused for a whispered conversation with the probation officer. Dan and his lawyer have no idea what was said, but of course this was the same probation officer who had written Dan’s presentence report. Dan argued this was an impermissible ex parte communication, and that his sentencing was prejudiced by the Court receiving and presumably relying on information Dan had neither heard nor had a chance to contest.

Last week, the First Circuit rejected Dan’s appeal in a decision we find rather troubling. The Court found such ex parte discussions between the judge and probation officer to be “fundamentally different from its communications with third parties,” because “a probation officer is simply an extension of the court itself” and indeed “functions as an arm of the court.”

The Circuit observed that the probation officer’s duty is to supply the “judge with as much information as possible in order to enable the judge to make an informed decision.” Well, of course, but that was not Dan’s complaint. His complaint was that the “information” was information that he should have been able to contest.

badadvice170201To be sure, the Court of Appeals held that probation officers and sentencing judges do not “have a free pass to discuss everything and anything off the record. To the contrary, factual information relevant to sentencing must be disclosed to the defendant.” But the appeals panel drew a distinction “new facts, on the one hand, and advice, on the other hand.” Facts have to be disclosed; advice does not. “The short of it, the First Circuit said, “is that a sentencing court has the right to confer ex parte with a probation officer to seek advice or analysis — but if the probation officer reveals new facts relevant to the sentencing calculus, those facts cannot be relied upon by the sentencing court unless and until they are disclosed to the parties and subjected to whatever adversarial testing may be appropriate.”

police170201Defendants have already realized that, like the policeman, the probation officer is not their friend. This is especially true of the probation officer who writes the Presentence Report, a document inevitably written from the perspective of the Government and typically chock-a-block with hearsay and gossip, the more lurid and derogatory to the defendant, the better.

The difficult with the blurry line between facts and advice is this: the probation officer’s advice to the judge is based on the officer’s opinion, and that opinion in turn is based on what the officer believes the facts to be. Facts may not be advice, but they certainly inform the advice. The marginal cost of requiring that all communications relating to sentencing be on the record is rather small, especially compared to the judge receiving back-channel and unchallenged “advice” from his or her own probation officer. While the officer is the court’s own employee, he or she is an employee with a crucial role in the sentencing process mandated by rule and statute.

United States v. Bramley, Case No. 15-2446 (1st Cir., Jan. 26, 2017)

– Thomas L. Root


Supervised Release: The Neverending Nightmare – Update for January 20, 2017

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


Bob Cross is doing life by the installment plan. He caught a marijuana case (or marihuana, as the government would put it) 2006, and sentenced to 60 months in prison, followed by four years of supervised release.

groundhog170120In August 2010, Bob got out and started his supervised release term, which – for those of you who have had the enjoyment of crossing swords with the federal criminal justice system – is nothing but glorified parole, and a seemingly endless bad dream to boot. Essentially, during supervised release, an offender has to file a monthly report on a form that is as vague and all-encompassing as the federal criminal code itself, and must adhere to equally spongy conditions. Violating the conditions is as easy as walking out your front door in the morning, leaving an offender’s continued freedom pretty much at the mercy of his or her probation officer (and, of course, the court for which the probation officer works).

You’ve heard the old business aphorism, “The customer is always right?” See how that applies when you’re arguing to a district court that the opinion of a probation officer on whom the court relies for so much – and who is a judicial agency employee to boot – should be overruled. You may as well ask Donald Trump to overrule Melania or Ivanka.

right170120Sometimes, however, the violation is fairly obvious. It was for Bob. During his supervised release term, Bob caught state drug possession and theft cases, both of which of course violated his supervised release conditions.

The district court learned about the drug possession beef first, and revoked his supervised release in April 2013, ordering him to do 8 more months in prison and an additional two years of supervised release. In December 2013, Bob finished the 8 months in the cooler, and resumed his supervised release.

Fifteen months later, the district court finally tumbled to Bob’s 2012 theft conviction, and revoked his supervised release again. Apparently due to the age of the conviction and the fact it could have punished him before, the court sentenced him to a single day in jail and another five years of supervised release.

Bob appealed, arguing that the court had revoked his previous supervised release term when it gave him 8 months in prison, and that because it had revoked it, the court had no jurisdiction to revoke the new term for something – the theft – that had happened in the old term. On Wednesday, the 6th Circuit gave Bob a grammar lesson.

word160208The Circuit explained that, “revocation and termination of supervised release are distinct concepts. Termination discharges the defendant and thereby ends the district court’s supervision of him. Thus, if the district court later discovered that the defendant had earlier violated some condition of his supervised release, the court would lack authority to send him back to prison for that violation qua violation. Revocation, in contrast, means that the defendant must “serve in prison all or part of the term of supervised release. Thus, revocation does not terminate the defendant’s supervised release; quite the contrary, it requires him to serve “all or part” of it in prison… Revocation therefore revokes only the release part of supervised release; the district court’s supervisory authority continues until the defendant’s supervised release terminates or expires.”

The Court held that because the district court’s authority continues throughout an offender’s supervised release term, so too does the court’s ability to police violations of the release’s conditions. Here, Bob’s supervised release term – and the district court’s right to supervise it – had “neither terminated nor expired by June 2015.” Therefore, the district court could revoke Bob’s supervised release a second time based upon its discovery that he had committed a second violation, no matter where in the supervised release term it happened.

sword170120So Bob gets to live under the Sword of Damocles until summer 2020 (unless of course the district court finds another reason to prolong it even more). By then, Bob will be 15 years into a 5-year pot sentence.

United States v. Cross, Case No. 15-5641 (6th Cir. Jan. 18, 2017).

– Thomas L. Root


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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

– Thomas L. Root