It’s Now November… and Nothing’s Happening (Except Maxwell) – Update for November 2, 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.

NOTHING NEW ON NOVEMBER 1

November 1st is a date with almost mythical status among federal prisoners, the day – according to rumor – that all sorts of new laws become effective, the front gates swing open, and everyone goes home.

The only magic that November 1 brings is that it’s the date on which Sentencing Guidelines amendments become effective. The 2026 Amendments – which change § 2B1.1 loss tables, pump up fentanyl punishment, and simplify multiple count adjustments – ARE NOT RETROACTIVE. This means that even if one of the few changes would benefit your Guidelines score, if you’re already sentenced, there’s no going back.

 Oh, yeah. There are no changes to the methamphetamine laws, either.

SCOTUS FSA HABEAS CASE GETS ARGUED TODAY

Maxwell v. Dinis, perhaps the most important post-conviction case of this Supreme Court term, will be argued today. Maxwell considers a federal inmate’s ability to use the habeas statute, 28 USC § 2241, to contest the Federal Bureau of Prisons’ placement decisions under the First Step Act, in this case, a refusal to accelerate the inmate’s transfer to a halfway house or home confinement due to earned time credits under 18 USC § 3632.

The FSA permits prisoners to earn time credits for completing programming that reduces recidivism. An inmate’s first 365 credit days reduce his or her sentence by up to a year.  Any leftover credits entitle the prisoner to extra time in a halfway house or home confinement.

Time in halfway house and on home confinement is still time in BOP custody. Thus, it is distinct from time on supervised release, a separate portion of the sentence that begins after imprisonment ends and is overseen by the US Probation Office.

Bill Maxwell has been serving a white-collar sentence of 20 years. His BOP record was spotless, and he completed a large number of programs that earned him FSA credits. He got crosswise with the BOP over whether it had properly counted all of his credits, complaining that he was being shorted by about 42 months.

Bill filed a petition for habeas corpus under 28 USC § 2241, seeking a court order that he be given his extra credits. The District Court dismissed the petition because it said Max had not exhausted his remedies. The 5th Circuit affirmed the dismissal but for different reasons. All Bill was asking for was designation to halfway house or home confinement, and those are placements still under BOP custody. The 5th Circuit has a bright-line rule that habeas relief under § 2241 is unavailable unless grant of the requested relief would entitle the inmate to quicker release from BOP custody. That rule doomed Bill’s petition.

Supreme Court precedent leaves it unclear that a federal inmate can use habeas corpus to challenge conditions of his confinement, such as an inmate’s placement in solitary confinement or in a maximum-security facility. When state inmates have brought such claims, the court has said that they may raise those only under 42 USC § 1983, not via habeas. That statute lets people challenge the constitutionality of actions by state and local officials, but not federal officials.

However, in the 2023 Jones v. Hendrix decision, the Supreme Court held that habeas remains available as a procedural mechanism for a federal prisoner to challenge “the legality of his detention” without attacking “the validity of his sentence.” What Bill is trying to do – contest the BOP’s refusal to apply time credits under the FSA to accelerate his transfer to a halfway house or home confinement – can be described as challenging the legality of his detention inside a low-security facility instead of pre-release custody. In 1973, the Supreme Court held in Preiser v. Rodriguez that a state prisoner must use a habeas petition – and not 42 USC § 1983 – to challenge the state denial of good-conduct time credits.

Bill is arguing that habeas relief is available for claims seeking to “reduce the prisoner’s level of custody” (quoting Justice Antonin Scalia’s concurrence in the 2005 case Wilkinson v. Dotson. He also points out that if he can’t use a 28 USC § 2241 habeas petition, he has no other alternative. SCOTUS has severely limited plaintiffs’ abilities to bring a civil-rights suit under Bivens v Six Unknown Named Agents of the Federal Bureau of Narcotics, for example, and federal law has no analog statute to 42 USC § 1983 permitting similar suits against federal. Even the Administrative Procedure Act (5 USC 551 et seq) is unavailable because 18 USC § 3625 makes it inapplicable to most BOP matters.

The government agrees with Bill that a § 2241 habeas action should be available to him to challenge the BOP denial of FSA credits for pre-release placement, although it clearly does not think the use of habeas should be as expansive as Bill does. Because the government has taken Bill’s position, more or less, the Supremes have appointed a lawyer to play devil’s advocate, and argue that the 5th Circuit is right. (This is usual practice at SCOTUS, intended to be sure all sides of the issue are aired).

The lawyer supporting the 5th Circuit’s standard argues that habeas relief should only be available if the inmate’s claim implies that actual physical detention must be shortened, if he or she is entitled to earlier release on bail or parole; or if the sentencing court ordered the prisoner to serve a sentence in a place it lacked jurisdiction to send him or her.

SCOTUSBlog said, “It is unclear whether the justices will find the amicus’ proposed circumstances appealing. But the amicus’s sustained attacks on the difficulties in applying Maxwell’s and the government’s position may well attract their interest.”  Regardless, the first post-Jones review of the parameters of § 2241 should either greatly benefit inmates or be the death knell for § 2241.

Maxwell v. Dinis, Case No. 25-5930 (Oral argument November 2, 2026)

SCOTUSBlog.com, Court to consider federal inmate’s ability to use habeas to accelerate transfer to a halfway house or home confinement (October 28, 2026)

~ Thomas L. Root

Supervised Release By The Numbers – Update for October 29, 2026

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NEW SUPERVISED RELEASE REPORT SUGGESTS FAILURE IS BAKED IN


The US Sentencing Commission has released a Supervised Release Revocations Data Report covering last fiscal year that suggests that a disturbing number of former inmates are sent back to prison for technical violations.


The Report, released last week, examined over 9,000 supervised release revocations from Fiscal Year 2026 (which ended September 30th) that ended in prison time. Its troubling findings support what many commentators have believed for years, that supervised release is too rigid, too punitive, and too focused on setting up former inmates for failure.


Nearly 40% of all violations are for drug use or refusal to submit to drug testing. Only 7% of violations are for new criminal conduct, with the next biggest category – 5.4% – being for not showing up at the Probation Office when told to.  One out of four people whose supervised release is revoked had a Criminal History I – the lowest criminal history category reserved for saints and virgins – when originally sentenced.


The most common term of supervised release being revoked is three years, and the target of revocation, on the average, has been on supervised release for 24 months before revocation is brought.


Among people revoked for new criminal conduct – so-called Grade A violations – three out of four are revoked for drug, gun or assault crimes.


Walter Pavlo noted in Forbes last week, “The USSC has recently emphasized that supervised release should be individualized and that judges should consider alternatives to imprisonment when violations occur. It has also recognized that keeping people under supervision longer than necessary can divert limited probation resources away from individuals who need more intensive oversight.”


The Commission has repeatedly noted in its Supervised Release Primer and in a recent Quick Reference Sheet on early termination that it is no longer necessary to show unforeseen, extraordinary or exceptional circumstances to justify early termination. It’s enough to complete one year while keeping your nose clean.


Unfortunately, the Supervised Release Revocations Data Report suggests that avoiding entanglement for minor technical violations is not easily done.


US Sentencing Commission, Supervised Release Revocations Data Report (October 2026)


US Sentencing Commission, Primer: Supervised Release (July 2026)


Forbes, USSC: Thousands Return To Fed Prison For Violating Supervised Release (October 19, 2026)


~ Thomas L. Root


	

	
	




	
	

		
A Pair of Promising Post- Conviction Cases – Update for October 27, 2026

		

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HECK V. HUMPHREY EXTENDS FTCS DEADLINE


The 1994 Supreme Court decision in Heck v. Humphrey held that a prisoner cannot sue civilly for an unconstitutional conviction or sentence until the conviction or sentence has been invalidated by a criminal court. It’s always been a bludgeon for inmate pro se litigators. However, a 4th Circuit case decided last week suggests that Heck applies expansively to prison discipline and that it can be a double-edged sword.


While doing federal time in 2017, Donte Parrish sued under the Federal Tort Claims Act, alleging that he was wrongfully charged with a Prohibited Act and placed in segregated confinement for the killing of another inmate. He sat in the SHU (Special Housing Unit, known as “The Hole”) for several years while the FBI investigated, before deciding not to pursue it. Afterward, the BOP found Donte committed a different offense he had never been charged with.


When an appeal finally sent the case back to the DHO, a new officer conducted a fresh hearing on the two charges in the original 2009 incident report. On January 25, 2017, the new DHO found that “no prohibited act was committed” and expunged the incident report.  By then, Donte had spent about eight years in the SHU.


An FTCA suit has to be brought within six months of denial of the inmate’s administrative claim. Donte’s claim was denied October 7, 2016, meaning that he had to sue by April 7, 2017.  He did not file until a month later than that, May 3, 2017.


The Circuit held that Donte’s tort claims were governed by Heck v. Humphrey. Thus, Donte’s did not accrue until January 25, 2017, at the earliest, when the record for the charges against him was expunged. Thus, the 4th ruled, Donte’s complaint filed in May 2017 was within the six-month statute of limitations set forth in 28 USC § 2401(b) and was therefore timely.


Heck v. Humphrey, 512 US 477 (1994)


Parrish v. United States, Case No 20-1766, 2026 U.S.App. LEXIS 31678 (4th Cir. October 19, 2026)




‘HE SAID, SHE SAID’ IN 2255 MOTIONS REQUIRE HEARINGS


Patrick Anderson pleaded guilty to a methamphetamine and fentanyl trafficking offense, and waived his right to appeal.  Later, he filed a pro se motion under 28 USC 2255, claiming that his lawyer was ineffective because he failed to file an appeal after Pat told him to do so.


The district court directed Pat’s trial attorney to file a declaration addressing Pat’s accusations. His lawyer denied everything.


The district court then denied Pat’s habeas corpus motion brought under 28 USC § 2255 without a hearing. The judge found that trial counsel’s affidavit “thoroughly contradicted” any claim that Pat directed his counsel to appeal. And because “both parties… already submitted… their respective versions of the events in question,” the district court ruled that “bringing them back into court to give testimony that will almost certainly parrot their briefing seem[ed] to be an unwarranted waste of judicial resources.” The district court thus held that it could “conclusively determine Anderson’s credibility: without holding an evidentiary hearing.


Last week, the 9th Circuit reversed.


The 9th held that, faced with conflicting sworn statements from Pat and his trial counsel on a dispositive issue, the district court should have held a hearing to assess each person’s credibility, and abused its discretion by failing to do so before denying Pat’s motion. Disagreeing with the government’s argument that this is a rare case in which credibility can be “conclusively decided” without a hearing, the panel wrote that Pat’s allegations are not “so far outside the bounds of reason” that they are “impossible to believe.”


The panel ruled, “At bottom, when faced with two conflicting statements—one from Anderson claiming he told his trial counsel to appeal, and one from trial counsel claiming otherwise—the district court could not conclusively credit trial counsel’s version without the benefit of an evidentiary hearing.”


This is the kind of thing that happens too often in § 2255 hearings. The Supreme Court ruled almost 65 years ago in Machibroda v. United States that 2255 movants’ plausible claims weren’t to be disbelieved without a hearing, but that holding is pretty much honored in the breach. It is heartening for an appeals court to remind trial courts that prisoners aren’t to be automatically disbelieved because they’re prisoners and lawyers aren’t to be automatically believed just because they’re lawyers.


United States v. Anderson, Case No 24-2385, 2026 U.S.App. LEXIS 31696 (9th Cir. October 19, 2026)


Machibroda v. United States, 368 US 487 (1962)


 


~ Thomas L. Root
	

	
	




	
	

		
Supreme Court Bucks Trump Bid to Dissolve Transgender Stay – Update for October 26, 2026

		

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SCOTUS DENIES BOP STAY OF ITS TRANSGENDER POLICY


The Supreme Court last Wednesday prevented the Federal Bureau of Prisons from denying certain gender-transition medical treatments for transgender inmates at federal prisons while the lawsuit over the issue works its way through the courts.


Two conservative justices, Samuel A. Alito Jr. and Clarence Thomas, said they would have granted the administration’s emergency request to stop the treatments while the litigation is pending.


In response to President Trump’s January 2025 Executive Order, the BOP adopted new policies to prohibit inmates from receiving the care. In March 2025, a group of inmates filed a class-action lawsuit accusing the government of failing to follow the Administrative Procedure Act before changing the prison policy, claiming that the agency provided no reasoned explanation for its decision.


The BOP adopted the policy in February, roughly one year after it issued two memoranda to implement the Executive Order that had been signed by President Donald Trump on the first day of his second term. That EO directed the Attorney General to “ensure that no Federal funds are expended for any medical procedure, treatment, or drug for the purpose of conforming an inmate’s appearance to that of the opposite sex.”


The BOP said that it adopted its February 2026 policy “independently of” Trump’s January 2025 Executive Order. In connection with the 2026 policy, the BOP also included an extensive administrative record and a 43-page memorandum in which it attributed the change from its prior policy to, among other things, “the latest scientific information.”  Its earlier policies, the BOP said, had relied on recommendations by the World Professional Association for Transgender Health, but it now deems WPATH’s standards “unreliable” and “unpersuasive.”


Finally, the BOP expressed concerns that providing access to procedures such as gender-transition surgeries could subject transgender prisoners to “attacks,” “raise fairness concerns,” and “breed resentment among other inmates.”


The lawsuit disputes the government’s argument that the treatments are not supported by the most recent science. The plaintiffs also note that prison officials in past administrations had not raised safety concerns regarding inmates receiving the care.


The Supreme Court’s denial of a stay means that, for now, as many as 1,000 federal prisoners who have been diagnosed with gender dysphoria will continue to receive gender transition treatments.


New York Times, Supreme Court Blocks Trump From Denying Gender-Transition Care to Federal Prisoners (October 21, 2o26)


SCOTUSBlog, Justices leave lower court order in place preventing Trump administration from implementing transgender inmate policy (October 21, 2o26)


Washington Post, Supreme Court allows gender transition care for federal prisoners for now (October 21, 2o26)


~ Thomas L. Root









	

	
	




	
	

		
Criminal Law Busywork at Supreme Court – Update for October 22, 2026

		

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LAST WEEK AT THE SUPREME COURT


Maxwell v. Dinis (formerly Maxwell v. Thomas):      A few months ago, I reported on petitioner William Maxwell’s claim in the Supreme Court that he should be allowed to challenge the BOP’s refusal to place him in prerelease custody by applying his First Step Act time credits in a petition for habeas corpus under 28 USC § 2241. (The 5th Circuit ruled otherwise, holding that habeas “is not the proper vehicle” for such a claim, which instead should be brought in “a civil rights suit under Bivens”).


Since then, the Government has informed SCOTUS that it “agrees with petitioner that that holding is incorrect and has therefore filed a brief supporting vacatur of the judgment below.”  Last week, the Court granted the Government’s request for divided argument, a procedure that lets the Solicitor General use part of Bill’s argument time to make its own arguments in favor of his position.


The Court has appointed a private attorney to advocate for the side that the Government would usually argue.  An argument date has not yet been set.


Maxwell v. Dinis, Case No. 25-5930 (divided argument granted, October 13, 2026)




Beaird v. United States: Beaird asks whether a sentencing court must defer to the sentencing Guidelines commentary. The precise issue is whether the enhancement for having a gun with a “large capacity” magazine must follow the Guideline commentary defining such a magazine as being 15 rounds or more.


At oral argument last week, the Supreme Court seemed disinclined to tinker with the 33-year-old Stinson v. United States holding that Guidelines commentary that “interprets or explains a guideline is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.” This is despite the fact that there is a substantial argument that the 2019 Kisor v. Wilkie holding – that limited the rule that courts defer to agency interpretation of its own ambiguous regulations – pretty much undid the Stinson holding.


Only Justice Neil Gorsuch seemed open to revisiting Stinson and Kisor in light of the 2025 Loper Bright holding that invalidated the rule that courts had to defer to how agencies interpreted statutes and rules.  SCOTUSBlog reported that “none of the other justices seemed particularly interested in adopting such a position.”


This is another case where the Government sided with the petitioner, arguing with Beaird that, principally because the guidelines are now advisory, Stinson–style deference to the commentary should no longer apply. As the oral argument suggested, the fact that both parties argue for one position is no guarantee that the Supremes will roll over and accept it.


SCOTUSBlog, Court unlikely to alter deference to sentencing guidelines commentary (October 16, 2026)


Beaird v. United States, Case No. 25-5343 (argued October 13, 2026)




Berry v. United States:    As anyone who ever filed a post-conviction 28 USC § 2255 motion knows, a district court denial is not appealable unless the appellate court grants a certificate of appealability (COA). A COA should be a low bar – a holding that the issue presented is reasonably debatable by judges or otherwise significant enough to let the movant continue with an appeal.


As the National Association of Criminal Defense Attorneys puts it, a COA is thus “the gateway to both appointment of counsel and an appeal on the merits—and by extension to a meaningful appellate process that can develop well-reasoned circuit splits on difficult legal questions.”


Corey Berry lost his § 2255 motion, and then filed an application for COA pointing out that the 11th Circuit’s holding that he had to prove his sentence did not rely on the elements clause of 18 USC § 924(c) was contrary to the holdings of seven other circuits. Thus, he said, the issue was clearly debatable. The 11th disagreed, denying his COA.


Last week, the Supreme Court granted review, focusing on whether a COA should be granted when the issue the petitioner seeks to raise on appeal has been resolved against him by binding circuit precedent but has been decided in his favor by another circuit.


It’s been a decade since SCOTUS last decided a COA case (Buck v. Davis).  A new decision that balances granting COAs of merit with appellate court efficiency is long overdue.


Berry v. United States, Case No. 25-7026 (cert. granted, October 13, 2026)


~ Thomas L. Root





	

	
	




	
	

		
3rd Circuit Doubles Down on 922(g)(1) Dangerousness – Update for October 20, 2026

		

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3RD CIRCUIT REFINES RIGHTS FOR FELONS-IN-POSSESSION


The 3rd Circuit broke new ground on felon-in-possession reform with its Range v. Atty General decision two years ago. Last week, the appellate court handed down two decisions that cemented the developing standard that it is only dangerousness, not the existence of a prior felony, that permits disarming someone under 18 USC § 922(g)(1).


The Circuit upheld the § 922(g)(1) against a man with a conviction stemming from a 24-year-old carjacking but ruled that the ban could not be applied to another man based on prior drunk-driving convictions.


James Bost pled guilty to terroristic threats, criminal conspiracy, false imprisonment and simple assault in Pennsylvania state court following a 2002 carjacking. He was later indicted for being a felon in possession after police caught him with a gun. James argued that § 922(g)(1) violated the 2nd Amendment as applied to his case.


The 3rd said that people like James who were convicted of crimes demonstrating “a risk of physical violence from misusing guns can be disarmed before that risk becomes a reality.”


In a different case, the Circuit held that applying § 922(g)(1) to Edward Williams violated the 2nd Amendment. Ed had prior convictions for drunk driving in the early 2000s. One of those convictions carried a maximum sentence of 5 years, which triggered felon-in-possession (although he only did 90 days in home confinement).


The 3rd ruled that § 922(g)(1) cannot be applied to people whose prior felony offenses did not involve violence or threats indicating a risk of misusing firearms consistent with the 2nd Amendment. Nothing in Ed’s prior convictions involved conduct that suggested the public was at risk that Ed was likely to misuse guns.


One troubling argument we’re sure to see again is the Government’s claim that the case should be dismissed because Ed now can file with DOJ to have his rights restored under 18 USC § 925(c). The 3rd rejected the notion that Ed had some duty to exhaust his administrative remedy first:




The scant chance of an invitation to apply for restoration under § 925(c) does not displace our decisional duty, as Williams presents an actual controversy ripe for adjudication…The United States reasons that since Williams can patiently await discretionary relief from the Justice Department, he faces no present harm (from, say, prosecution under § 922(g)(1)). That is a curious conception of our 2nd Amendment right and one that, in any event, does not fit the facts… Nor will we dismiss Williams’s case under the administrative exhaustion doctrine. Congress has imposed no such requirement and no principles of “sound judicial discretion” support holding a constitutional right in abeyance while the Government gradually comes into compliance.




The idea that because the DOJ may decide you’re entitled to have guns again is a substitute for enforcing your constitutional rights is a dangerous notion.  Constitutional rights protect people from Government overreach. Suggesting that the 2nd Amendment depends on Government permission turns a right into a privilege that can be given or taken by bureaucratic whim.


United States v. Bost, Case No, 24-1719, 2026 U.S. App. LEXIS 31138 (3d Cir. October 13, 2026)


Williams v. Attorney General, Case No. 24-1091, 2026 U.S. App. LEXIS 31148 (3d Cir. October 13, 2026)


~ Thomas L. Root





	

	
	




	
	

		
DOJ Finds FCI Berlin Short on Staff, Healthcare, and Security – Update for October 19, 2026

		

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DOJ FINDS MEDICAL, SECURITY PROBLEMS AT FCI BERLIN


Hard to believe that Federal Bureau of Prisons inmates experience significant delays in routine and urgent medical care, but that’s the case at FCI Berlin, according to the Department of Justice Office of the Inspector General.


In a report issued last week, the OIG found severe operational challenges at Berlin in New Hampshire. Despite operating at 52% of its stated inmate capacity, the facility suffers from critical staffing shortages among correctional officers and medical personnel. These shortages have caused significant delays in routine and urgent medical care for prisoners, including waits of nearly a year for specific consultations.


The Report, based on an unannounced January 2026 inspection, said other issues included security violations and deviations from BOP for tracking sexual misconduct complaints.


Vacancies are particularly acute among correctional staff and in Health and Psychology Services departments, the Report found. As a result, staff “struggle[] to address BOP inmate requests for routine medical care inside the institution” and to facilitate inmates in seeing medical providers outside of the prison.


Additionally, housing ICE detainees has placed further demands on the understaffed institution, while deteriorating infrastructure and broken security equipment remain unaddressed. Consequently, the OIG said, hundreds of prisoners face long waiting lists for rehabilitation programs and vocational training intended to reduce recidivism.


The findings are hardly surprising. Writing in Forbes, Walter Pavlo said the inspection “offers a familiar picture of the challenges facing the… BOP. Staffing shortages, delayed medical care, deteriorating infrastructure and limited access to rehabilitation programs continue to affect the agency responsible for incarcerating more than 150,000 people.”


In response to the Report, New Hampshire Sens Jeanne Shaheen and Maggie Hassan and Reps Chris Pappas and Maggie Goodlander wrote to BOP Director William K. Marshall III that “[]the challenges outlined in the report must be taken seriously, especially a lack of vigilance surrounding sexual misconduct complaints and medical care deficiencies… [W]e  identified in the report, we remain alarmed about the ongoing safety issues at FCI Berlin, particularly given that staffing at the facility has only further dropped since this inspection was completed.”


Dept of Justice Office of Inspector General, Inspection of the Federal Bureau of Prisons Federal Correctional Institution at Berlin, New Hampshire (Report 26-002, October 16, 2026)


Union Leader, Federal watchdog finds staffing gaps, care delays at FCI Berlin prison (October 16, 2026)


Forbes, Another Prison Inspection Critical of Bureau of Prisons (October 16, 2026)


~ Thomas L. Root



	

	
	




	
	

		
Our House Was A Very, Very, Very Fine House – Update for October 16, 2026

		

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IDIOCY IS NO DEFENSE


I once had a police detective friend down in Virginia who swore that ‘FBI’ stood for ‘freaking bunch of idiots’.  (Well, not ‘freaking’ but you can fill that in). 


 The ‘idiot’ part was on display in an 11th Circuit decision last week that held that while the federal government is largely immune from a Georgia family’s lawsuit over a misdirected FBI raid at their home, the agent who led the raid was incompetent and may have violated their constitutional rights.


In 2015, the FBI launched Operation Red Tape (aptly named for a stodgy bureaucracy) to address violent gang activity in Georgia. Eleven years ago this week, the Operation resulted in a 30-defendant indictment. One of the unfortunate defendant was Joe Riley.


The SWAT team, which loved kicking down doors, secured a search warrant for Joe’s house, located at 3741 Landau Lane. Hilliard Cliatt, his then-fiancé Curtrina Martin and her seven-year-old son, lived in a nearby house, down the street and around the corner from Joe. Hilliard’s house was a very fine house… until the FBI got done with it.


When FBI Agent Lawrence “Wrong Way” Guerra led the SWAT team on its predawn raid to nab Joe, he missed, smashing through Hilliard’s front door, detonating a flash-bang grenade, holding the occupants at gunpoint, terrorizing the boy, and tossing the place. Unsurprisingly, Lawrence ignored Hilliard’s protestations of innocence until another officer stumbled across some mail with the residence address on it and realized the team had the wrong house.


When the dust settled, Hilliard, his fiancé and her son all sued Lawrence and the Bureau. A district court found the agents were not immune from suit, the 11th Circuit reversed, finding they were.  The Supreme Court sent the case back.


Last week, the 11th reversed the qualified immunity granted to Lawrence, noting the geographical and physical differences between Hilliard’s residence and the one listed in the FBI’s search warrant were so stark that the agent’s “conduct in verifying the address to be raided was simply not consistent with a reasonable effort to ascertain and identify the place intended to be searched.”


The two homes were three houses away from one another, on opposite sides of the road and separated by a cross street. Plus, street signs clearly marked the intersection as not being the street where the target home was located. Only an idiot would have driven by in the daylight the day before and still gotten it wrong.


But, the Circuit hinted, Lawrence was just the idiot to pull it off. “[A] reasonable jury could fairly conclude that Agent Guerra failed to engage in reasonable efforts to avoid error, and, therefore, violated the plaintiffs’ constitutional rights,” the Court wrote. “Such plain incompetence has clearly violated the 4th Amendment since at least 1995 when we decided this materially similar precedent.”


The decision was a mixed bag. The Circuit upheld the district court’s holding that the government was immune because a drug raid is a ‘discretionary function’ exception to the Federal Tort Claims Act. But the Court’s decision is noteworthy in that it recognized that some negligence – picking the wrong house with the wrong address on the wrong street – is too extreme to permit a grant of qualified immunity to the agent who was in charge of the raid.


Martin v. United States, Case No. 23-10062, 2026 U.S. App. LEXIS 30717 (11th Cir., October 7, 2026)


~ Thomas L. Root



	

	
	




	
	

		
More than One Way to Skin a Union Cat – Update for October 15, 2026

		

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BOP SAYS, ‘TAKE THAT, DISTRICT COURT!’ ON UNION CANCELLATION


Three weeks ago, U.S. District Judge Vernon D. Oliver (D. Conn,) ordered the BOP to immediately restore union protection for more than 30,000 employees who lost it after the BOP unilaterally ended the Council of Prison Locals 33’s collective bargaining agreement a year ago.


Two weeks ago, the union asked Judge Oliver to hold the BOP and Director William K. Marshall III in contempt for failing to comply with the preliminary injunction. The next day, Marshall rescinded the AFGE contract cancellation notice but immediately issued a new notice that the contract had been re-terminated for different reasons and then said the agency no longer needs to honor the injunction.


“The court’s order was based solely on the conclusion that bureau leadership had issued inconsistent rationales for terminating the CBA; that order does not preclude the bureau from issuing a new termination decision after reconsidering the basis for that action,” Marshall’s October 7th memorandum to the union states. “Neither the court nor the union has indicated any disagreement regarding the agency’s ability to re-terminate the CBA in a new decision.”


The union is not happy. “It’s absurd and shameful that this administration would stoop so low as to flout the rule of law inside our own federal prisons just to silence the voices of the brave correctional officers who work every day in some of the most challenging environments in the country,” AFGE National President Everett Kelley said in a statement.


We would caution the kids at home not to try this: it’s the kind of in-your-face contempt that would probably result in indictment for private citizens.


Federal News Network, BOP re-terminates union contract, days after being ordered to restore it (October 7, 2026)


AFGE News, Bureau of Prisons Terminates Union Contract Despite Court Order Mandating Reinstatement (October 13, 2026)


~ Thomas L. Root



	

	
	




	
	

		
First Week at the Supreme Court: Guns, Gender and Guidelines – Update for October 13, 2026

		

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SCOTUS GETS BACK TO WORK


This year’s Supreme Court term (known in judicial speak as “October Term 2026”) began last week with some interesting, if below-the-radar, developments.


Felon-in-Possession: Last spring, the 5th Circuit declared 18 USC § 922(g)(1) – the felon-in-possession statute – unconstitutional as applied to a defendant whose only prior felony was a state simple drug possession conviction. The Circuit ruled that there was no historical evidence that people possessing contraband that didn’t pose a danger to others were prohibited from owning guns.


The government – which usually gets its way when it wants Supreme Court review – asked SCOTUS to take up the case but hold it until it could apply its ruling in United States v. Hemani, last June’s holding that 18 USC § 922(g)(3) – the subsection that bars “habitual” drug users from having guns – violates the 2nd Amendment as applied to a Texas man who said that he smoked marijuana a few times a week.


The Hemani decision noted that it did not address the federal law “disarming individuals convicted of felonies (often including drug-related ones.”  After Hemani, Defendant Hembree urged the justices to leave the 5th Circuit’s ruling in place. “The decision in Hemani does not affect the outcome here,” he wrote in his response to the Government petition for certiorari, because it “says nothing about nonviolent felons being categorically and permanently disarmed.”


Last week, the Supremes agreed, denying the government review of the 5th Circuit decision. This means that the 5thCircuit joins the 3rd (Range v. Attorney General) and the 6th (United States v. Williams, sort of) in holding that § 922(g)(1) can violate the 2nd Amendment as applied to some people whose prior felonies don’t show dangerousness.


United States v. Hembree, 165 F.4th 909 (5th Cir. 2026)


United States v. Hembree, Case No. 25-1219 (Cert denied, October 5, 2026)




Do The Notes Count? For everyone who ever wondered whether you have to read the footnotes, the Supreme Court will reconsider the 30-year-old Stinson v. United States holding that courts must follow Sentencing Commission commentary that interprets or explains a Guideline “unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.”


Stinson made a lot of sense back when courts were required to follow the Guidelines and the Chevron doctrine directed courts to defer to agency interpretation of statutes. But in 2019, in a major test of deference to agencies’ interpretations of their own regulations, the court ruled in Kisor v. Wilkie that courts must defer to an agency’s interpretation of its regulations only where the regulation is genuinely ambiguous on the question at issue.


In Beaird v. United States, the Supreme Court will consider whether Stinson still correctly captures the deference that courts must give to the Guidelines’ commentary. The degree of deference matters because a significant amount of detail about how the sentencing guidelines should be applied is found in the commentary, covering the gamut of federal crimes from fraud to firearm offenses.


The Beaird defendant claims his sentencing was wrongly calculated to include an enhanced base offense level for unlawful gun possession by counting a 17-round magazine attached to the firearm as a “large-capacity magazine.”


The sentencing Guideline applies an enhancement where the firearm has a “large-capacity magazine,” but exactly how large a magazine must be to ne “large capacity” is only defined in the commentary as a “magazine or similar device that could accept more than 15 rounds of ammunition.” That definition sweeps in just about any double-stack auto pistol on the market, including five of the most popular Glocks, Sigs, Smith & Wessons and HKs.


The defendant argues that the commentary, which unlike the guideline itself is not approved by Congress, improperly expands the scope of the guideline. That guideline, he contends, was intended to target only weapons that are exceptionally dangerous or inherently illegal, not industry-standard semiautomatic firearms.


Beaird v. United States, Case No. 25-5343 (argued October 13, 2026)




BOP Transgender Policy: Lawyers for Bureau of Prisons transgender inmates urged the Supreme Court on Thursday to leave in place a court order that bars the BOP from enforcing a new policy on healthcare that would prevent transgender inmates from obtaining hormone therapy and “social accommodations” (such as makeup, wigs, and padding).


The BOP adopted the policy earlier this year, following President Trump’s February 2025 executive order directing the attorney general to “ensure that no Federal funds are expended for any medical procedure, treatment, or drug for the purpose of conforming an inmate’s appearance to that of the opposite sex.”


Three transgender inmates then went to federal court in Washington, DC, to block the enforcement of the policy. On August 26, Senior US District Judge Royce Lamberth issued an order barring the BOP from implementing the policy, and on September 18, the DC Circuit refused to reverse the order. On September 28, BOP went to the Supreme Court to ask that the order be blocked, complaining that the district court had “substitut[ed] its own policy judgment” for the BOP, “rel[ied] on evidence outside the administrative record… fault[ed] the agency for following presidential directions… [and] denied prison administrators the substantial deference they are due.”


The issue of the temporary order, on the SCOTUS “emergency” docket, will probably be decided next week. Ultimately, a decision on the merits of the underlying case could not just affect transgender inmates but define how much deference courts have to give “prison administrators.”


Trump v. Kingdom, Case No. 26A-416 (application for stay filed September 28, 2026)


~ Thomas L. Root