Defendants Waiving The Waiver – Update for June 23, 2026

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SCOTUS HOLDS APPELLATE WAIVERS AREN’T ALWAYS IRONCLAD

Just about the last thing any defendant is concerned with when signing a plea agreement with the federal government is the fine print in which she waives the right to appeal or file a post-conviction 28 USC § 2255 petition or a related motion. The agreed-upon sentence, Guideline factors, dismissed counts, and the US Attorney’s promise not to prosecute for anything else are the important questions. Technicalities like waiving appeal and collateral rights, restitution, supervised release… those provisions are usually just so much noise to a defendant who is negotiating away freedom while trying to minimize the pain.

The appellate and collateral attack waiver is not important.

Until it is.

That is, until the parties’ agreement that the Guideline sentence should be between 33-41 months runs into a judge who thinks the statutory maximum sentence of 20 years is more appropriate. The right to appeal such craziness then becomes vitally important. And that’s when the government waves the waiver at the court of appeals, demanding that your appeal be tossed because, after all, you agreed not to appeal.

In 2024, Munson Hunter III signed a plea deal to plead guilty to aiding and abetting wire fraud. The agreement included the standard appeal waiver. The government dismissed nine other counts as part of the package in exchange for Munson’s agreement to a 51-month sentence.

At sentencing, the court accepted the deal, imposing a 51-month sentence. However, concerned that Munson exhibited conduct that suggested some mental issues, the court added a condition that Munson get mental health treatment while on supervised release and take whatever meds the mental health provider prescribed.

Munson was uninterested in spending his supervised release in a drug-induced stupor and tried to appeal, claiming a 5thAmendment right not to be forced to take pills. The 5th Circuit ruled that his appeal waiver barred him from doing so.

Last week, the Supreme Court reversed the Circuit.  Writing for the majority, Justice Elena Kagan explained that “an agreement not to appeal a sentence is unenforceable when it would result in a miscarriage of justice—meaning, when it would leave in place the kind of egregious error that would bring the judicial system into disrepute.”

The result was not a watershed moment.  After all, eight Circuits already recognize the “miscarriage of justice” exception. But the opinion is notable for the explanation of what constitutes a “miscarriage of justice,” which up to now has been largely an “I can’t define it, but I know it when I see it” standard.

The 8-1 opinion described “miscarriage of justice” as being where

the sentence is marred by the kind of egregious error that would bring the judicial system into disrepute. The error must be obvious—not one a judge could reasonably make. And it must be of the type that would undermine public confidence in the judiciary. Sentencing is a complex affair in our criminal justice system, involving for example the detailed calculation of a Sentencing Guidelines range and the mandatory consideration of multiple sentencing factors. In that endeavor, it is unfortunate but inevitable that mistakes will occur. Such standard-fare errors in misapplying sentencing law cannot cancel an appeal waiver. Were they to do so, the utility of waivers in plea negotiations could plummet: such a provision would have less value to the Government, and so might induce fewer concessions to a defendant. And still more to our point, that kind of standard error is not likely to discredit the judiciary’s commitment to law. But some faults in sentencing can…The point of the miscarriage-of-justice limit, as many appellate courts have properly applied it, is to offer a safety valve for extreme cases—a way out of a waiver when the justice system’s basic integrity is at stake.

Armed with this definition, a well-prepared defendant in many cases may be able to make a compelling showing to get around an appeal waiver. Expect that many cases will follow that include detailed arguments to set aside appeal and post-conviction waivers.

Hunter v. United States, Case No. 24-1063, 2026 US LEXIS 2558 (June 18, 2026)

~ Thomas L. Root

Shocking News: BOP Grievance Procedure Deck is Stacked – Update for June 22, 2026

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

BOP ADMIN REMEDY PROCEDURE – THE HOUSE ALWAYS WINS

A study by The Marshall Project and NPR published last week reported that the BOP’s grievance system – the BP-9, BP-10 and BP-11 – has inmate failure baked in.

I have not been this shocked by a revelation since learning that professional wrestling is fixed.

Reviewing BOP remedy filings for 2023, the latest year for which data are available, the study found that out of about 40,000 grievances filed in Fiscal Year 2023, 75% were rejected for being inconsistent with the BOP’s arcane procedural rules (too few copies of attachments provided, failure to enclose a copy of a lower-level denial, late filing). Of the 10,000 or so that made the procedural cut, only about 700 were granted.

Overall, the BOP’s grant rate is somewhere under 2% of the remedies filed. Like shooting craps with the house winning 49 out of 50 times.

The TMP/NPR report noted that the grievance process has gotten much worse in the past 20 years. The rate at which the Bureau granted grievances has fallen from just under 7% in 2000 to its current rate, a decline of 70% in 20 years.

“The program is intended to solve problems and be responsive to issues raised by inmates,” Randilee Giamusso, a BOP representative, wrote in an email to TMP/NPR, “and does not prevent inmates from pursuing litigation.”

Of course it doesn’t. And vandals are wrecking President Trump’s perfect beautification of the Reflecting Pool.

The Prison Litigation Reform Act, passed in 1995, requires prisoners to complete all available administrative remedies as a condition of bringing suit. Other litigation, such as a petition for habeas corpus under 28 U.S.C. § 2241, requires exhaustion (but excuses it in rare cases where exhaustion would be futile, something that the BOP’s 2% approval rate should be considered to be “all the time”).

Contrary to Ms. Giamusso’s assurance, in Fiscal Year 2025 alone, over 1,770 federal court cases grappled with failure-to-exhaust-remedies claims raised by the government. In other words, the government uses failure-to-exhaust as a bludgeon to get inmate lawsuits dismissed on a regular basis.

The TMP/NPR study followed the medical travails of inmate Terri Mollica, whose serious condition was identified by physicians but needed surgery was withheld, and whose BP-9 was not answered for over 6 months. Mollica’s final level internal remedy to the BOP Central Office was never logged as received, leading to her lawsuit against the BOP being thrown out. The Circuit’s dry recitation of Terri’s history of trying to get the BOP to “solve problems and be responsive to issues raised by inmates” (as Ms. Giamusso so chirpily puts it) tells the story:

•   On October 31, 2019, McGuire-Mollica filed an informal resolution form with the prison. She requested to “see a specialist/surgeon to determine the best course of action, within the next 30 days.” The next day, prison officials returned her form as unresolved.

•   On December 4, 2019, McGuire-Mollica submitted a request for administrative remedy using a BP-9 form. She explained that she “ha[d] not received any treatment or additional consults for this problem” and renewed her request for “an outside specialist or surgeon.” On June 23, 2020, the acting warden responded to her request by confirming that she had a “scheduled appointment with an OB/GYN specialist.”

•   On June 26, 2020, McGuire-Mollica filed an appeal using a BP-10 form. She continued to demand to see a surgeon. On December 21, 2020, the regional director denied her request because there was “no evidence of a May 2017 diagnosis of a malignant uterine growth” in her medical records and “[s]urgical intervention was not recommended.”

•   On October 1, 2020, McGuire-Mollica mailed an appeal using a BP-11 form. McGuire-Mollica mailed this appeal before receiving the regional director’s response to her BP-10 form, but the regional director’s time to respond had already expired, which allowed the prisoner to “consider the absence of a response to be a denial.” She signed the BP-11 form and listed a certified mail tracking number on it. But prison officials contend that they never received the form, as the SENTRY database that tracks the status of all administrative grievances has no record of the BP-11 form being filed.

•   On October 27, 2020, 26 days after she submitted the BP-11 form, McGuire-Mollica filed pro se a complaint in the district court. She alleged that the Bureau of Prisons and its officials had violated her rights under the Federal Tort Claims Act and the Eighth Amendment. And she attached exhibits to substantiate her claims, including copies of her administrative grievance filings and an affidavit alleging that “the officers/staff at this prison ha[ve] been tampering with [her] legal mail and denying [her] access to the Courts.”

•   On July 1, 2022, McGuire-Mollica filed—still pro se—an amended complaint. She listed several prison staff and officials as defendants and described their involvement in the denial of her request.

•   On October 19, 2023, the prison staff moved to dismiss the amended complaint. They contended that McGuire-Mollica failed to exhaust her administrative remedies… They argued that she did not complete the final step of the process of “appeal[ing] the response from the Regional Office to the General Counsel level.” McGuire-Mollica responded that she filed the BP-11 form when she submitted it to prison officials for mailing. And she explained that she “ha[d] done all administrative remedies that were available to her” because she could not “control the mail, whether the [Bureau]’s employees actually process or respond to the form, or even when or if the remedy is logged into the [Bureau] system.”

•   On March 8, 2024, the magistrate judge granted the motion to dismiss. She explained that ‘[g]iven the clear conflict between the parties’ allegations, the court must accept as true McGuire-Mollica’s version of events—that she mailed her final appeal to the General Counsel.’ But… ‘although McGuire-Mollica properly completed and mailed her final appeal, it was never ‘logged into the Administrative Remedy Index as received’ and ‘[b]ecause her appeal was never received and logged into the Administrative Remedy Index, it was never considered ‘filed.’ She also dismissed the amended complaint because ‘when McGuire-Mollica filed her [original] complaint, the General Counsel’s time to respond had not expired’ such that ‘the administrative remedy process had not been completed.

So the BOP’s non-resolution of Terri’s problem only took a year.  Seldom has a ‘no’ been delivered with such alacrity.

See how well it works, Ms. Giamusso?

The 11th Circuit reinstated the case after attorneys for the MacArthur Justice Center proved that she had tried to follow every step, but officials had failed to record her final appeal.

The report noted that the BOP’s approval rate “appears to be far below that of many state corrections departments, the news organizations found, though departments track such data in different ways. In California, officials granted roughly 15% of grievances and appeals in 2023… In Georgia, nearly 13% of cases were “granted, partially granted or resolved” that year, according to the department. In Texas state prisons, over 4% of complaints and appeals processed that year were “resolved in inmate favor” — a very small portion, but about twice the BOP’s rate.

Ms. Giamusso told TMP/NPR that the agency is working on “updates and additional guidance” on the remedy procedure. However, nothing to that effect has been proposed in the Federal Register, suggesting that a fix – if one is being planned at all – is years away.

NPR,  ‘Rejected’: How federal prisons stonewall grievances and deny care for years (June 17, 2026)

McGuire-Mollica v. Fed. Bureau of Prisons, 146 F.4th 1308, 1312-13 (11th Cir. 2025)

~ Thomas L. Root

‘Dopers With Guns’ Decision Disappoints the Narratives – Update for June 19, 2026

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SUPREMES AVOID BROAD BRUSH ON HEMANI

Everything these days comes with a narrative. The Knicks only lose one game since April because President Trump was there, but win the next game because Taylor Swift brings the magic. Antifa “operatives” spiked the Reflecting Pool with algae before being arrested by Park Police.

Narratives attach to Supreme Court cases as well.

Yesterday, SCOTUS decided that 18 USC § 922(g)(3) – which prohibits people who illegally use controlled substances from possessing guns – could be unconstitutionally applied in certain uses. Defendant Ali Hemani was caught with cocaine, some weed and a gun in his home, and charged under § 922(g)(3). The US District Court for the Eastern District of Texas threw out the case, holding that making gun possession a felony because Ali liked to blow a little dope violated his 2nd Amendment right to keep and bear arms. The 5th Circuit agreed.

The high court’s decision is a “rollicking opinion” that is “worth a read,” the Wall Street Journal said this morning. “Yet it provides few hints of how to draw the line in tougher cases.”

President Trump’s Dept of Justice brought the case to the Supreme Court. The narrative was that DOJ thought it had the perfect unsympathetic defendant, a dual US and Pakistani citizen who had ties to the Iranian Revolutionary Guard Corps and went to Iran to honor Iranian general Qasem Soleimani, killed by a US drone strike. The government claimed Ali’s mother was seen on video saying she hoped her sons would become martyrs for Iran. The narrative was that SCOTUS thought that slamming a bum like Ali would be an easy lift.

Others (including me) thought that the Supreme Court could use a slam-dunk 2nd Amendment case like finding Ali Hemani, who used a little recreational pot and owned a Glock, was constitutionally protected, as a springboard to addressing the stickier questions about the constitutionality of § 922(g)(1), the subsection that bans all felons from ever possessing a gun.

Yesterday, the Court disappointed both narratives, holding in a 9-0 opinion that as applied to Ali, § 922(g)(3) violated his 2nd Amendment rights. The opinion, by Justice Neil Gorsuch, was painfully minimalist:

In many respects, this case is a narrow one. We do not address efforts to ban addicts… or those presently intoxicated, from possessing a firearm. We do not address other prophylactic laws Congress might adopt after determining that users of a particular drug pose a special risk of misusing firearms… We do not address 18 U.S.C. § 922(g)(1)’s provision disarming individuals convicted of felonies (often including drug-related ones). Ibid. We do not even address whether the government could bring a prosecution under § 922(g)(3) accompanied by individualized proof that the defendant’s use of marijuana (or any other drug) renders him a danger to himself or others. Or proof that a certain drug always renders its users dangerous because of its potency or for some other reason. None of those issues is before us and we do not pass on them either way.

Not that other Justices were unwilling to raise other issues. Justices Samuel Alito and Elena Kagan, the two who concurred in the judgment only, complained that they wanted to see a narrower opinion. Justices Ketanji Brown Jackson and Sonia Sotomayor spend five pages of their own blasting the New York State Rifle & Pistol Assn. v. Bruen test – on which modern 2nd Amendment jurisprudence turns – as a “failed… experiment” that should be overturned.  Justice Clarence Thomas was expansive in a different direction, writing his own concurring opinion that all of § 922(g) stretches the Commerce Clause too far: “Congress cannot regulate the possession of every thing that ever traveled across state lines.”

Now packing heat legally….

So Hemani is a win for what Ohio State University law professor Doug Berman estimates to be the “few thousand people have been convicted and sentenced under § 922(g)(3) in the last decade, and there could be many thousands more with such a conviction on their records. But, as just noted, Hemani does not necessarily make all these convictions suspect unless the case facts are similar to those in Ali Hemani’s prosecution.”

For those who hoped the case would be a blaze on the trail to getting the 2nd Amendment read into § 922(g)(1), however, Hemani falls short.

United States v. Hemani, Case No. 24-1234, 2026 U.S. LEXIS 2559 (June 18, 2026)

Sentencing Law and Policy, How many (thousands of) 922(g)(3) convictions are now suspect after Hemani? (June 18, 2026)

~ Thomas L. Root

No Retro, No Concrete Proposals, Sentencing Commission Says – Update for June 18, 2026

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

SENTENCING COMMISSION WAVES AS ITS CAR CAREENS OFF THE CLIFF

The US Sentencing Commission is down two commissioners (operating with five instead of seven). The terms of two more commissioners expire at the end of this year. Absent quick work by the Trump administration in nominating people that the Senate is willing to confirm (who can forget Trump’s last picks, which included Judge Henry “Hang ‘Em High” Hudson?), we may again have a legally impotent USSC as of January 1, 2027.

When the USSC last lost its quorum in December 2018, five years passed without any amendments being adopted. Trump, in office at the time, apparently saw the Commission as pretty low priority, taking a single stab at populating the Commission and then giving up. It took Biden appointing enough commissioners to fill the chairs again, with the first amendments to the Guidelines since November 2018 adopted in November 2023.

Last week, the Commission published its proposed priorities for the coming year, two broad-brush proposals that are a departure from the specific proposals of years past (such as the methamphetamine tables or theft/fraud loss calculations). Instead, the USSC proposes to undertake an evaluation of the guidelines and federal sentencing practices in light of the Commission’s mission set forth in statute and to “undertake a comprehensive review of the Rules and consider whether any amendments to such Rules may be appropriate to further the agency’s statutory purposes and enhance public engagement with and understanding of the Commission’s work.

This is unmitigated squishiness, much more a navel-gazing existential introspection than a serious consideration of substantive changes in the guidelines to reflect justice or reality.

Ohio State University law professor Doug Berman wrote in his Sentencing Law and Policy blog last week that “[i]t seems increasingly likely that the USSC will be without a quorum for the start of 2027 and maybe for years thereafter. That may explain why we are getting two broad ‘review’ proposed priorities rather than any specifics.”

The Commission last week published a Retroactivity Impact Analysis of Certain 2026 Amendments, which examined three proposed amendments in the 2026 package sent to Congress last month. If two of these Guidelines, the “inflationary adjustments amendment” and the “multiple counts amendment,” were made retroactive, nearly 5,000 federal prisoners would be eligible for an 18 USC § 3582(c)(2) sentence reduction.

But they won’t be made retroactive. The Commission reports that it “has chosen to not solicit public comment or hold a hearing on retroactivity. When the Commission submits amendments to Congress, it may decide to publish an issue for comment and hold a hearing on whether to make some or all of those amendments retroactive… The Commission is not taking these steps for any of the amendments submitted to Congress on April 30, 2026.”

Apparently, three Commissioners supported retroactivity for the inflationary adjustment Amendment to USSG § 2B1.1 (the theft-fraud guideline. Unfortunately,  28 USC § 994(a)(2) requires four votes for Commission action, including on retroactivity.

Prof Berman wrote, “There is a reasonable basis to believe that, had the USSC had a full slate of Commissioners, there likely could have been a fourth vote for making at least the inflationary adjustments retroactive. But even though it seems a majority of the five current Commissioners would have voted for retroactivity, that’s not sufficient because there is a statutory requirement of four total votes for the USSC to formally act.”

USSC, Retroactivity Impact Analysis of Certain 2026 Amendments (June 4, 2026)

Sentencing Law and Policy, US Sentencing Commission requests input on policy priorities while indicating recent guideline amendments will not be retroactive (June 11, 2026)

~ Thomas L. Root

From the Sublime to the Absurd at the BOP – Update for June 16, 2026

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

SEX, PRISON FOOD, AND UNSERIOUSNESS

Serious stuff:   US District Judge Royce Lamberth (District of Columbia), who has been hearing a series of challenges to the Trump administration’s anti-transgender prison policies, granted a preliminary injunction last week prohibiting the Federal Bureau of Prisons from transferring 14 transgender prisoners biological men identifying as women) to men’s facilities while their lawsuit if pending, concluding that the plaintiffs were likely to prevail on their 8th Amendment claims. 

Judge Lamberth, a Reagan appointee, previously enjoined the BOP from  “tapering” hormone therapy for transgender prisons. The BOP has sought a stay of that order from the DC Circuit.

Meanwhile, in the Northern District of Alabama, a female inmate has filed a Federal Tort Claims Act lawsuit against a BOP correctional officer (who is already facing criminal charges) alleging that she was raped and sexually assaulted more than 20 times at FCI Aliceville.

According to the lawsuit, Corrections Officer Felix Wilder began grooming the plaintiff in October 2023, directing her into isolated areas of the facility where he forced her to have unprotected sex on more than 20 occasions through September 2024.

Worrisome Stuff:  In response to a May 1, 2026, BOP request for information from vendors about interest in outsourcing food service, commissary, and health care across all 122 BOP institutions nationwide, the Center for Science in the Public Interest and the Carceral Nutrition Project wrote to Congress last week urging that any privatization plan be abandoned.

“Outsourcing BOP food and canteen services to a private company will not make incarcerated people healthy again,” said CNP founder Daniel Rosen, contributor to a recent CSPI report on prison food privatization, wrote. “It won’t create healthy prisons, or healthy communities, as RFK, Jr., has promised. It’s a corporate giveaway, and it prioritizes profit at the expense of people’s health and public safety.” 

CSPI and CNP told Congress that, while a number of states have calculated that privatizing carceral food service would save on costs, the report found evidence that outsourcing food service has resulted in inadequate nutrition and portion sizes, inconsistent food safety practices, unpalatable meals due to over- or under-cooking, and spoiled, contaminated, or maggot-ridden food. 

Silly Stuff:  Serial whiners and former reality stars Todd and Julie Chrisley have filed a lawsuit accusing one of their former defense attorneys and his law firm of legal malpractice in the federal criminal case that led to their convictions.

The Chrisleys were convicted of defrauding community banks in the Atlanta area to obtain more than $36 million in personal loans by submitting false bank statements, audit reports, and personal financial statements. They contend that legal mistakes made during the case contributed to their convictions, caused them to spend time in prison, damaged their reputations and separated them from their family.

The complaint alleges that their lawyer lacked significant criminal defense experience and that the firm knew this but pursued the representation because of the publicity associated with the family’s celebrity status (which the family itself pursues on a daily basis).

The federal criminal tax and bank fraud investigation against the couple was based on an unlawful, warrantless search by the Georgia Department of Revenue, the lawsuit contends. The judge granted a defense request to suppress the physical documents from that search, but defense counsel didn’t ask the court to suppress “derivative evidence,” including emails, bank records and financial documents that “formed the core of the government’s case,” the lawsuit says. Federal agents got search warrants to obtain specific documents from the Chrisleys’ email accounts, the lawsuit says, based on that tainted GDR evidence, the lawsuit alleges.

“Without that evidence, the government would not have had sufficient evidence to support a conviction,” the lawsuit says.

Todd Chrisley, who whined endlessly while he was locked up about the suffering he endured at minimum-security FPC Pensacola, now brags that he “ran” his “prison block” and got up every day with the “sole intent… to make the prison employees feel miserable,” according to Reality Tea:

Todd, who vowed to help improve the “evil” prison system following his release, said that his “sole intent” while behind bars was to make the prison employees feel miserable. As if their jobs weren’t already difficult and underpaid, Todd said he wanted to make things worse. He’s truly a class act, said no one.

“I was surrounded by miserable human beings,” Todd told his daughter on her podcast. And if he had a mirror, he could have found another one.

President Trump pardoned both Chrisleys in May 2025. But contrary to how the media portray it, courts don’t like suppressing evidence because, as the Supremes said in United States v. Nixon, “Whatever their origins . . .  exceptions to the demand for every man’s evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth.”

Because the plastic couple never had their convictions overturned, the Chrisleys may face a real challenge in proving that – but for the malpractice – they would have been acquitted.

Washington Examiner, Judge blocks transfer of transgender inmates back to men’s prisons, setting the stage for broader judicial clash (June 12, 2026)

WZDX-TV, Corrections officer already facing felony charges named in new federal lawsuit (June 9, 2026)

CSPI, Letter to House and Senate Judiciary Committees (June 9, 2026)

WAGA-TV, Chrisleys sue former attorney over criminal case defense (June 9, 2026)

Insurance Journal, Chrisleys Sue Former Defense Attorney, Alleging Malpractice in Conviction (June 15, 2023)

Reality Tea, Todd Chrisley Boasts About Prison Stay: ‘I Ran My Block’ (August 15, 2025)

United States v. Nixon, 418 U.S. 683 (1974)

~ Thomas L. Root

Venue Still Means Something, Supreme Court Says – Update for June 15, 2026

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

‘VENUE’ IS WHERE YOU DO IT, NOT WHERE IT’S FELT

The Supreme Court last Thursday handed down a rare decision narrowing the government’s ability to do mischief with criminal venue.

About 20 years ago, I was having lunch with an attorney who was only a few weeks into private practice after a long career as an Assistant US Attorney. He was no backbencher: as an AUSA, he had handled some pretty heavy terrorism and organized crime cases.

We were discussing a criminal tax case the government had brought against an out-of-district defendant, a prolix indictment in which a few counts were based on conduct that had occurred within the district while a substantial majority related to acts that had occurred entirely outside of the district. When I suggested to him that the out-of-district counts had a serious venue problem, he scoffed, “Venue is nothing. It can always be waived.”

“Um, not really,” I responded. “You’re thinking about venue in a civil case. That’s easily waived and nearly as easily overlooked. For criminal venue, you should check out the 6th Amendment.”

As seldom as I am correct, I cherish the memory that I was right about that. Within a month, the court had thrown out seven of the nine counts in the indictment for lack of venue.

The idea behind venue is that a defendant should be tried where the crime occurred and the evidence is located, simply as a matter of fairness to the defendant. Still, criminal venue usually gets little respect. First, venue need only be proven by a preponderance of the evidence. Second, when the crime is a “continuing offense,” it can be tried in any district in which any element of the offense was committed. Third, the criminal code and precedent are full of exceptions and work-arounds: when professional baseball player Darryl Strawberry was charged with tax evasion for filing a tax return in California (where he lived) that omitted a lot of cash he had received over the prior year, he and his agent were charged in the Southern District of New York, because Darryl had sold some memorabilia at a baseball card show there, and the cash he received was subsequently not declared in his tax return. Good enough for venue, the court said. (Darryl was convicted of tax evasion, but he was pardoned by President Trump – himself no fan of the IRS – last year).

And we won’t even try to bring up the Vicinage Clause and the Yellowstone Zone of Death. That’s a discussion for another time.

Last week’s decision was a breath of fresh air, despite some suggesting it is a narrow ruling.  As a Twitter employee in San Francisco, Ahmad Abouammo took money from the Saudi Arabian government for providing personal information on Saudi dissidents and passed it along to a high-level official in the Saudi royal court. One Red Cross worker who was critical of the Saudi government had his information and thereafter was tortured with electric shocks to an inch of his life.

The count in question at the Supreme Court was whether Ahmad could be tried in San Francisco for violating 18 USC § 1519 by creating a fake invoice on his computer in his second-floor Seattle and emailing it to FBI agents who were waiting downstairs.  The government charged him in San Francisco because that was where the FBI investigation was based, rather than in Seattle where he created the document. Ahmad argued that § 1519’s language made the crime complete when he finished falsifying the document, which occurred in his Seattle office.

The government argued that venue was proper in San Francisco because the investigation Ahmad intended to disrupt with the phony invoice was being run out of the FBI office there. But in last week’s 9-0 decision by Justice Elena Kagan, the justices reversed a 9th Circuit conclusion that the “intent” requirement in § 1519 – which criminalizes falsifying documents in a federal investigation – allows the government to prosecute the defendant where such an investigation is located.

Kagan noted the historical purpose of the venue clause, based on the Declaration of Independence’s complaint that the British Parliament often “transport[ed] us beyond Seas to be tried for pretended offences.” The constitutional right to venue where the crime was committed is guaranteed in Article III (which instructs that “Trial of all Crimes” shall “be held in the State where the said Crimes shall have been committed”) and again in the 6th Amendment (giving defendants the right to a jury “of the State and district wherein the crime shall have been committed”).

To implement that constitutional rule, Kagan wrote, courts generally determine the location of a crime’s “essential conduct elements.” The § 1519 “essential conduct element,” the falsification of a document with intent to do so, makes the crime complete.  The defendant does not need to transmit the document to anyone nor use it in any particular way, because the only proscribed conduct is falsification. Thus, venue must be where falsification occurred.

Kagan rejected the 9th Circuit’s view that because Ahmad intended to obstruct a San Francisco investigation, venue was proper there. “This Court has never looked to a statute’s mens rea elements in considering venue. Nor would it make much sense to do so.” Whatever obstructive effects Abouammo’s false invoice may have had in northern California, they were not elements of his crime. And because that is so, those effects cannot figure in determining where Abouammo’s ‘crime [was] committed.’”

Abouammo v. United States, Case No. 25-5146, 2026 U.S. LEXIS 2467 (June 11, 2026)

~ Thomas L. Root

Supremes Add Rare Pro Se Habeas Petition to Fall Docket – Update for June 12, 2026

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CERTIORARI GRANTED ON USING § 2241 PETITION FOR FSA TIME CREDITS

Prisoners earning First Step Act time credits under 18 USC § 3632 use the first 365 credits to shorten their sentences.  Excess credits entitle them to more halfway house or home confinement.

A stark circuit split has developed over whether an inmate can bring a habeas corpus claim when the credits being denied to him would only give him more time in halfway house or home confinement as opposed to a shorter sentence.

Last week, the Supreme Court granted certiorari to a pro se petition that will result in the Court deciding whether a claim regarding application of FSA time seeking only accelerated transfer to halfway house or home confinement can be brought in a 28 USC § 2241 habeas petition.

The case will be argued next fall.

Maxwell v. Thomas, Case No 25-5930 (cert granted June 1, 2026)

Sentencing Law and Policy, Supreme Court grants cert on process for federal prisoners to challenge time credits under First Step Act (June 1, 2026)

~ Thomas L. Root

Going Home? First, a Little Minicamp… – Update for June 11, 2026

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RE-ENTRY MINICAMP

Pro teams conduct preseason “mini-camps.”  Why not the BOP?

On May 28, the Bureau announced that it would begin transferring “eligible individuals” to minimum-security camps once the inmates have received a halfway house or home confinement placement date.

The announcement confusingly states that “[t]hese transfers must be completed in accordance with Program Statement 5100.08 CN-3, Inmate Security Designation and Custody Classification. It also provides that “[w]hile the initiative applies to approved individuals across security levels, initial implementation will prioritize those currently housed in low-security facilities who are appropriate for camp placement.”

The BOP said in a press release that intermediate placement in a minimum-security camp can provide a more community-like setting while preserving structure, oversight and accountability. The Bureau contended that this kind of step-down placement better prepares individuals for release than a direct transition from higher-security institutions.

The confusion is this: If transfers are completed according to PS 5100.08 CN-3, then the people being transferred must already qualify for camp placement. Then, one must wonder, why haven’t they been transferred already? Puzzling…

Correctional News reported, “The BOP also cast the move as an operational and fiscal decision. By relying on existing camp infrastructure — much of which the agency said has historically been underutilized — the bureau said it can reduce reliance on higher-cost placements, lower operating costs and use available capacity more efficiently.”

The BOP said camp placement will not be available to sex offenders, deportable aliens, Disruptive Group members, domestic or international terrorists, inmates who require heightened monitoring, inmates with recent serious misconduct, or cases in which placement would pose an identifiable public-safety risk. That should give the agency ample wiggle room to exclude anyone it deems unacceptable for such placement.

None of this makes the decision a bad one. A “step-down” program like this might make acclimation to halfway house or home confinement much easier. To be sure, it’s some “outside the box” thinking that has not been a BOP brand in the past, and for that, the agency should be commended.

BOP, Strategic Expansion of Minimum-Security Camp Utilization (May 28, 2026)

Correctional News, BOP Expands Minimum-Security Camp Use for Reentry (June 2, 2026)

~ Thomas L. Root

When ‘Danger is My Business,’ 2nd Amendment Offers Scant Protection – Update for June 9, 2026

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

HOME IS WHERE THE GUN IS

Curtis Squire had his home searched after a shooting occurred nearby. Police did not find the gun used in the crime, but they did find a different gun. Curtis, who had previous state convictions for conspiracy to possess and distribution of heroin, was charged with being a convicted felon in possession of a gun, a violation of  18 USC § 922(g)(1).

Curtis argued that § 922(g)(1) was unconstitutional under the 2nd Amendment as applied to him, because keeping a gun at home for self-defense was different than taking it out in public, and the history of gun legislation in America recognized as much. He also argued that a drug offense was not inherently violent and was not the kind of crime punished in colonial days by gun confiscation.

Last week, the 5th Circuit disagreed, admitting that Curt’s argument was “novel” but disposing of it nonetheless because what Curtis was convicted of doing – drug dealing – was inherently a dangerous undertaking.

The Circuit held:

[T]he home-based distinction [Squire] attempts to draw within our Nation’s historical tradition is mugged by the reality that our historical laws support his disarmament, even in the special confines of his home. While the Constitution safeguards the core right to keep and bear [arms] inside the home, see District of Columbia v. Heller, 554 U.S. 570, 625-28 (2008), it does not dislocate the government’s regulatory power to strip certain groups of this right, “Congress is entitled to make categorical judgments,” Vidal v. Elster, 602 U.S. 286, 319 (2024) (Barrett, J., concurring in part), including a values-based policy judgment that convicted drug traffickers, such as Squire—whose conviction involved an “inherently dangerous activity,” United States v. Kimble, 142 F.4th 308, 317 (5th Cir. 2025) —may be disarmed under § 922(g)(1) consistent with our historical tradition. That conclusion does not rest upon an “individualized assessment” that Squire is “dangerous,” based on some amorphous understanding of the word. See id. at 318; see also United States v. Mitchell, 160 F.4th 169, 187 (5th Cir. 2025) (“Rahimi did not sweepingly proclaim that ‘dangerousness’ is the new standard for Second Amendment challenges.”). Nor does it reflect a freewheeling judicial balancing of rights and safety. See New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 26 (2022) (explaining the “Constitution demands” that courts jettison “interest balancing” in favor of history and tradition). Instead, Squire’s dangerousness is premised solely on his drug trafficking offense, which places him in “a class of dangerous felons that our regulatory tradition permits legislatures to disarm.” Kimble, 142 F.4th at 318 (emphasis added).

United States v. Squire, Case No. 25-30324, 2026 U.S.App. LEXIS 15873 (5th Cir., June 2, 2026)

~ Thomas L. Root

Compassionate Release Lessons from Rutherford – Update for June 8, 2026

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

RUTHERFORD AND THE FUTURE OF COMPASSIONATE RELEASE

Debate over the Supreme Court’s Rutherford v. United States decision continues.  The Marshall Project declared that the Supremes were “tightening early prison release.” Forbes said Rutherford and Fernandez v. United States, its companion case, “mark[] a decisive turn in [compassionate release] evolution, pulling the doctrine back toward its more limited origins and rejecting a more expansive vision embraced by the US Sentencing Commission just a few years ago.”

Before 2018, a defendant convicted of two 18 USC § 924(c) counts in the same proceeding for using a gun in a crime of violence or drug offense faced a mandatory minimum of 30 years. An additional 924(c) would bump it up to at least 55 years. The First Step Act changed the law so that three § 924(c) convictions in the same proceeding carried a mandatory minimum of at least 15 years, not a meager sentence but still only 27% of the old punishment.

In an 11th-hour deal to get votes for FSA passage, the Senate chose not to make the change retroactive.

Nevertheless, many believed that compassionate release could not be only as a response to personal hardship but also serve as a limited mechanism to address inequities embedded in sentencing law itself. The 2nd Circuit in United States v. Brooker and 4th in United States v. McCoy led the charge. Then, in the November 2004 Guideline amendments, the USSC added USSG 1B1.13(b)(6), which permitted relying on the fact that a non-retroactive change in the law created a gross sentencing disparity – along with other factors – to support an “extraordinary and compelling reason” for compassionate release.

Many courts began to treat such a disparity as part of the “extraordinary and compelling” analysis, particularly when combined with rehabilitation and other individualized factors. But various federal circuits split on whether this approach was permissible. Some circuits held that nonretroactive changes in sentencing law could not justify compassionate release. Others concluded that such disparities could be considered, especially when they produced grossly disproportionate outcomes

The Rutherford defendant – who had two § 924(c) sentences for using a gun during a bank robbery – argued that the fact that his minimum sentence would have been about a third of what he got pre-FSA for the gun charges supported grant of compassionate release. Not so, SCOTUS said: Disparities created by non-retroactive amendments are not “extraordinary,” but rather a routine feature of legislative reform. Likewise, they are not “compelling,” because they reflect Congress’s intentional decision to leave existing sentences in place.

At the heart of the Rutherford decision is a reaffirmation of congressional intent and the principle of non-retroactivity. The Court emphasized that when Congress reduces a statutory penalty but declines to apply that change retroactively, it is making a deliberate policy choice. Allowing courts to use that same change as a basis for sentence reduction through compassionate release would undermine what Congress had elected to do.

Writing in Forbes last week, Walter Pavlo observed that “[a]t its core, the Supreme Court’s decision reflects a broader commitment to finality in criminal sentencing. The Court emphasized that Congress has the authority to define crimes and set punishments, and that courts must respect the lines Congress draws, including decisions about retroactivity. This emphasis on finality is not new, but it carries particular weight in the context of compassionate release. By limiting the grounds for eligibility, the Court has reinforced the idea that sentence modification is the exception, not the rule.”

The Rutherford decision will have limited effect on compassionate release filings. The Marshall Project reported that judges cited “unusually long sentence and change in law” as part of their rationale for granting release in about 20% of compassionate release cases.

So what?

In Fernandez, the defendant was granted compassionate release because the court had doubts about his guilt, despite the fact that he was convicted by a jury after less-than-solid testimony by co-conspirators seeking to save their own skins. The Supreme Court said attacks on convictions belong in 28 USC § 2255 motions, not in compassionafe release motions. Last week, Slate asked “why would an innocent prisoner seek compassionate release?” and then answered is own question: “Because Congress and the Supreme Court have severely limited prisoners’ access to federal habeas corpus relief over the past several decades.” 

Rutherford and Fernandez together say compassionate release is not a workaround for procedural limits on correcting legal errors in a criminal case or a substitute for retroactive application of new laws that reduce penalties. Justice Barrett explained that the very term “compassionate release” — which is nowhere found in the statute, by the way – “highlights its focus on granting mercy rather than righting legal wrongs.” But, as former Sentencing Commission ex officio member Jonathan Wroblewski wrote last week in the Sentencing Matters Substack, Justice Barrett provided a roadmap for people seeking compassionate release. In Rutherford, he notes, she repeatedly

underscores that compassionate release is not about the crime itself, the proof of that crime, or changes in the law governing either, but rather about how a defendant’s personal circumstances have changed and who that defendant has now become… As to the meaning of “extraordinary and compelling,” Justice Barrett again is clear. “While the terms ‘extraordinary’ and ‘compelling’ leave room for judgment, they are not so flexible as to encompass any consideration.” “‘Extraordinary’ means ‘most unusual,’ ‘far from common,’ and ‘having little or no precedent’ . . . (‘[o]ut of the usual or regular course or order’). ‘Compelling’ means ‘tending to convince or convert by or as if by forcefulness of evidence’ . . . (‘irresistible, demanding attention, respect’).”

Barrett holds that “the required finding of extraordinary and compelling is ‘a distinct analytical step that imposes independent and ascertainable limits on access to compassionate release.’” As Wroblewski notes, “Barrett effectively endorses a totality of circumstances approach for determining extraordinary and compelling personal circumstances.”

Any movant for compassionate release would do well to make the motion focused on the totality of his or her circumstances. Compassionate release isn’t dead… it’s just become very personal.

Rutherford v. United States, Case No 24-820, 2026 USLEXIS 2294 (May 28, 2026)

Fernandez v. United States, Case No 24-556, 2026 USLEXIS 2295 (May 28, 2026)

The Marshall Project, How The Supreme Court Is Tightening Early Prison Release (June 6, 2026)

Slate, Ketanji Brown Jackson Stands Firm—and Alone—on Compassionate Release (May 29, 2026)

Forbes, Supreme Court Narrows Compassionate Release For Federal Prisoners (June 5, 2026)

Substack, What Compassionate Release Could Still Be (June 4, 2026)

~ Thomas L. Root