Guns, Drugs and Appellate Waivers – Update for March 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.

SUPREME COURT HAS PRISONER-FRIENDLY WEEK…

The Supremes heard oral arguments in two cases last week, and while it is always perilous to predict the outcome from what happens in oral argument, the signs favor two pro-prisoner decisions.

In the closely-watched United States v. Hemani case, the government sought review of a 5th Circuit holding that 18 USC § 922(g)(3) – which prohibits drug abusers from possessing guns – could be applied to a gun owner who smoked pot a few times a week consistent with the 2nd Amendment.

Attorneys for the government compared § 922(g)(3) to colonial-era laws that disarmed “habitual drunkards.” However, Justice Neil Gorsuch wondered whether Hemani even qualified as a “habitual user” of marijuana. Gorsuch observed that the term “habitual drunkard” carried a very different meaning in early American history, because people generally drank alcohol in great quantity. “John Adams,” Gorsuch said, “took a tankard of hard cider with his breakfast every day,” while “James Madison reportedly drank a pint of whiskey every day.”

And if those Founding Fathers were not “habitual drunkards,” Gorsuch asked, “then what do we know about Mr. Hemani? We know he uses marijuana … about every other day… [W]e don’t even know the quantity of how much he uses every other day.”  And the federal government, Gorsuch said, “has not been able to define what a user is.”

A majority of the justices seemed to agree that § 922(g)(3) may be overbroad, lumping together occasional drug users with people addicted to drugs who threaten public safety. “Is it the government’s position that if I unlawfully use Ambien or I unlawfully use Xanax, then I become dangerous?” Justice Amy Coney Barrett asked the government’s attorney. “What is the government’s evidence that using marijuana a couple times a week makes someone dangerous?” she added.

If the Hemani opinion focuses on “dangerousness,” it may advance arguments that nonviolent felons should not be subject to § 922(g)(1). Politico, however, warned that it is “unclear whether the justices will use the case against Ali Hemani to issue another major ruling on when the government can intrude on the 2nd Amendment right to bear arms.”

A case that has drawn lesser interest (but is maybe more consequential for defendants) is Hunter v. United States. Hunter asks what exceptions exist to federal defendants’ waivers of their right to appeal, language that appears in virtually every one of the 94% of federal cases that end with a guilty plea every year.

SCOTUSBlog reported that “[t]he justices seemed poised to endorse more exceptions than just the two the government endorsed – ones for ineffective assistance of counsel in entering into a plea agreement and for sentences above the statutory maximum. A number of justices also expressed misgivings about relying on contract law to define exceptions to appellate waivers… and a majority seemed likely to hold, at a minimum, that a defendant could escape from an appellate waiver when enforcing it would result in a “miscarriage of justice…”

The National Law Journal observed that DOJ’s “hard line on enforcing plea bargained waivers of appeal took U.S. Supreme Court justices aback,” even suggesting that if a district court were avowedly racist at sentencing, an appeal waiver would prevent the defendant from getting any relief.

Writing last week in his Sentencing Law and Policy blog, Ohio State University law prof Doug Berman argued that broad sentencing appeal waivers “insulate all sorts of sentencing errors from scrutiny and review, and they seem fundamentally inconsistent with the decision by Congress in the Sentencing Reform Act of 1984 to provide both defendants and the government with the right… to seek appellate ‘review of an otherwise final sentence’.”

Berman wrote that he “was pleased to discover at least one Justice (Justice Jackson) seemed drawn to the idea that broad sentencing appeal waivers were void as against public policy, and I was even more pleased that it was not clear that any Justice was eager to embrace the government’s suggestion that broad sentencing appeal waivers were subject to almost no exceptions. I predict the majority of the Court will end up between these extremes, and I am already looking forward to seeing what the middle ground will be.”

United States v. Hemani, Case No. 24-1234 (oral argument March 2, 2026)

Politico, Supreme Court wrestles with gun ban for drug users (March 2, 2026)

SCOTUSBlog, Supreme Court skeptical of law banning drug users from possessing firearms (March 2, 2026)

New York Times, Supreme Court Appears Skeptical of Law Banning Drug Users From Owning Guns (March 2, 2026)

Hunter v. United States, Case No. 24-1063 (oral argument March 3, 2026)

SCOTUSBlog, Justices poised to adopt exceptions to federal criminal defendants’ appellate waivers (March 6, 2026)

National Law Journal, ‘Racist Sentencing Judge?’: DOJ Stuns Supreme Court With Stance on Appeal Waivers (March 4, 2026)

Sentencing Law and Policy, Broad array of Justices express broad concerns about broad appeal waivers in Hunter oral argument (March 3, 2026)

~ Thomas L. Root

Good Ideas, Recycled, in Senate – Update for March 6, 2026

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SMARTER SENTENCING ACT IS BACK

Senators Dick Durbin (D-IL), Ranking Member of the Senate Judiciary Committee, and Mike Lee (R-UT) last week reintroduced the Smarter Sentencing Act as S.3959, which seeks to update sentencing for federal drug offenses, and S. 3960, the Smarter Pretrial Detention for Drug Charges Act, which would give judges greater discretion in pretrial detention decisions for nonviolent drug charges.

The Smarter Sentencing Act, introduced in two prior Congresses, would lower mandatory minimum sentences for some nonviolent drug crimes. For reasons not clear to me, while Sen. Durbin’s office trumpeted this as the Smarter Sentencing Act, S.3959 is actually titled “A bill to focus limited Federal resources on the most serious offenders.”

Over half of all federal inmates are serving sentences for drug offenses, and many were convicted of an offense carrying a mandatory minimum penalty. By lowering mandatory sentences for certain nonviolent drug offenses, the bill provides federal judges more flexibility to determine when the harshest penalties should apply on a case-by-case basis.

Durbin and Lee first introduced the Smarter Sentencing Act in 2013; some reforms were later included in the First Step Act. The current bill is cosponsored by eight Democratic senators and supported by the National Association of Criminal Defense Lawyers, Due Process Institute, Federal Public and Community Defenders, Dream.org, and Association of Prosecuting Attorneys.

The Smarter Pretrial Detention for Drug Charges Act would remove blanket presumptions that require detention before trial for most federal drug charges.

A 2017 Probation and Pretrial Services Office study concluded that the presumption of detention in drug cases has been an “unsuccessful attempt” to identify high-risk defendants based primarily on the charge and “has contributed to a massive increase in the federal pretrial detention rate, with all of the social and economic costs associated with high rates of incarceration.”

Federal Newswire, Durbin and Lee Introduce Bipartisan Bills Targeting Federal Drug Sentencing Reform (February 26, 2026)

S.3959, Smarter Sentencing Act

S. 3960, Smarter Pretrial Detention for Drug Charges Act

~ Thomas L. Root

The Error Is Harmless If You Really Did It – Update for March 5, 2026

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HARMLESS ERROR MATTERS, NOT CATEGORICAL MISSTEP, 1ST SAYS

Anthony Shea was charged back in the 90s with a series of robberies that featured liberal use of firearms. He was convicted of a Hobbs Act conspiracy, several Hobbs Act robberies and two 18 USC § 924(c) offenses for using and carrying a gun during the crimes.

Tony’s jury was instructed that the predicate crime of violence for the two § 924(c) charges could be either Hobbs Act robbery or conspiracy to commit the same. The jury returned a general verdict of guilty as to all counts, including the two § 924(c) counts and their predicates, meaning that no one could tell on which predicate – the robbery or conspiracy –  the § 924(c)s were based.

However, in 2015, years after Tony’s conviction, the Supreme Court decided in Johnson v. United States that the residual clause in the Armed Career Criminal Act (18 USC § 924(e)(2)(B)) definition of “violent felony” was unconstitutionally vague. Later, SCOTUS held in United States v. Davis that the logic of Johnson extended to § 924(c), holding that the residual clause “crime of violence” under § 924(c)(3)(B) was unconstitutionally vague as well.

Tony got permission to file a successive 28 USC § 2255 motion based on Johnson in order to challenge his two § 924(c) convictions and his sentences. He argued that the court has to assume that the jury took the categorical approach, meaning that the facts of his particular robberies didn’t matter, just the elements of the crime. Because the jury could have convicted him of § 924(c) offenses based on a conspiracy – and conspiracies didn’t count as violent after Davis – he argued that the two § 924(c) counts had to be vacated.

The District Court disagreed. It found the error harmless, because Tony was convicted of the two robberies in which the guns were used, and those substantive offenses “did, and still do, qualify as predicate ‘crimes of violence’ under [s]ection 924(c).” The District Court thus held that the jury’s verdicts on the § 924(c) convictions “remain valid.”

Last week, the 1st Circuit agreed. Ordinarily, to determine whether it is harmless error for a district court to instruct a jury on “multiple theories of guilt, one of which is improper,” a court must examine the factual circumstances and the record before it in evaluating the effect of the error on the jury’s verdict. The Circuit rejected Tony’s approach, holding that there is “no reason why a different approach to harmless error review would be required or appropriate when the instructional error results from a district court’s erroneous instruction as to whether an offense qualifies as a ‘crime of violence’ under the categorical approach.

“The categorical approach,” the Circuit said, “is used to determine whether a court has erred in instructing the jury about whether a predicate offense constitutes a ‘crime of violence.’ But the determination on direct appeal of whether that error was harmless turns on whether, ‘in the setting of a particular case,’ that error may be ‘so unimportant and insignificant that [it] may… be deemed harmless.’”

Here, the jury found beyond a reasonable doubt that Tony had committed the robberies. Therefore, any error in not instructing the jury that the robberies – not the conspiracy – was the underlying crime of violence supporting the § 924(c) convictions was harmless.

Shea v. United States, Case Nos. 22-1055, 2026 U.S.App. LEXIS 5327 (1st Cir. February 23, 2026)

~ Thomas L. Root

6th Amendment Doesn’t Let You Coach Up Your Client/Witness – Update for March 3, ,2026

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EVERYBODY’S TALKING AT ME

There is little in American criminal law as sacred as a defendant’s right to talk freely and confidentially with his or her attorney. But even the sacred has exceptions.

Last week, the Supreme Court ruled 9-0 that when a trial court recesses a criminal trial during a defendant’s testimony, the court may order that the defendant and counsel not discuss that testimony during the break except where it is incidental to talking trial strategy or taking a plea deal.

On trial for murder, Aaron Villarreal took testified in his own defense. After about an hour, the trial judge recessed for the rest of the day and told Aaron and his lawyer not to talk about his testimony overnight. Aaron was convicted.

On appeal, he argued that the order not to discuss his testimony violated his 6th Amendment right to effective assistance of counsel.

The Supreme Court agreed, listing some types of attorney-client discussion that a trial court may not prohibit. “A defense attorney may rehearse her client’s testimony before her client takes the witness stand,” Justice Ketanji Brown Jackson wrote for the Court. “And a defense attorney may debrief her client’s testimony after her client leaves the witness stand for good. Such discussion of testimony qua testimony is entirely proper and the consultation that enables it is constitutionally protected before the defendant’s testimony begins and after it concludes. But for the duration of the defendant’s time on the stand, consultation about the testimony itself—rather than incidental discussion of testimony in service of protected topics—sheds its constitutional protection.”

“No less than before or after his testimony, a defendant’s access to advice about trial strategy remains essential to the collaborative enterprise that is criminal defense,” Brown held. What’s more, the flow of information goes both ways, she said, with counsel remaining free to obtain information from the client on which trial strategy may hinge.

The Court acknowledged in a footnote that “[t]he line between discussion of testimony for its own sake and discussion of testimony incidental to other topics may not always be razor sharp.  We trust that defense counsel will not evade the spirit of qualified conferral orders by couching discussion of testimony qua testimony in strategic terms.”

Villarreal v. Texas, Case No. 24-557, 2026 U.S. LEXIS 1103 (February 25, 2026)

~ Thomas L. Root

A “Totally Decimated” DOJ Pardon Office Sidelined by “Corrupt” Clemency Process – Update for March 2, 2026

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PARDON OUR MESS AT THE OFFICE OF PARDON ATTORNEY

The Dept of Justice Office of Pardon Attorney has always been rather opaque. Last week, we got a glimpse of President Trump’s OPA, and what we saw was not good.

Under the Constitution, the President holds unreviewable clemency power. However, since 1789, various government offices have provided the President with administrative support for the exercise of executive clemency. In 1865, a DOJ office was formally delegated the responsibility of assisting the President in vetting clemency petitions. It became the “Office of Pardon Attorney” in 1894. Historically, presidents have relied on OPA’s pardon review process to rely on the pardon attorney process before making pardons, but they are not required to do so.

OPA used to apply five standards for someone to be considered for clemency, including conduct since conviction, seriousness of the offense, acceptance of responsibility for the crime, the extent of punishment already suffered (especially collateral consequences), and references from other people who could attest to the applicant’s good character and rehabilitation.

Not anymore. A troubling New York magazine article last week detailed the mess that OPA has become, and the implications for federal prisoners without rich parents or powerful friends.

Elizabeth Oyer, who headed OPA when Trump came into office, was the first former public defender to serve as Pardon Attorney. Her staff of 45 was responsible for reviewing the cases of thousands of offenders to determine who was worthy of clemency. But within hours of President Trump taking office, “she was cut out of the process, which was rerouted from the top down.” Oyer told New York that she began learning about Trump clemency grants “when they popped up in the news.”

Oyer was fired last March when she refused to agree that actor and friend of Trump Mel Gibson should have his gun rights restored. Gibson was disqualified under 18 USC § 922(g)(9) because of a misdemeanor conviction for violence against his ex-girlfriend and the mother of his 1-year-old daughter at the time.  New York described Oyer’s firing as “a death knell for the office, according to some former staffers.”

“The office has been totally decimated,” an ex-staffer was quoted as saying. The office is down from 45 to about 15 employees. Many took buyouts when Elon Musk’s DOGE offered them last April. “Others,” New York said, “quit rather than stick around in an office where their work was being ignored.” (DOJ, of course, denies that OPA has been sidelined).

Two people appear to be in charge. Alice Marie Johnson, the “pardon czar” Trump appointed a year ago – a former federal prisoner serving life for a cocaine trafficking conspiracy before Trump commuted her sentence in 2018 (and later upgraded her to a full pardon) – works out of the White House. “Some ex-staffers hoped Johnson would maintain the office’s mission-based work…” one former OPA employee said. “But I don’t know that she has a staff,” says another former employee.

The official head of OPA is Edward Martin, named Pardon Attorney as a consolation prize after he was found to be too controversial to pass the Senate appointment process to be US Attorney for Washington, D.C. New York reported that Martin is uninterested in the Pardon Attorney position and apparently appears at the office about once a week.  “He’s just not there that much,” the staffer said.

The best way to obtain clemency in the current environment is to pay big in order to go around OPA. Lobbying for clemency is big business. Billionaire Changpeng Zhao, who violated money-laundering prevention statutes at his crypto exchange, Binance, was pardoned last fall, about a month after hiring the lobbying firm of Donald Trump Jr.’s friend Ches McDowell. The cost for a month’s lobbying? $450,000. (It helped that Binance was also a major backer of the Trump family’s cryptocurrency stablecoin). Nursing-home magnate Joseph Schwartz paid conservative lobbyists nearly $1 million last April to lobby for a pardon on tax-fraud charges; by November, Schwartz was free.

“Attorneys close to Trump are now seeking fatter fees,” New York reported. “Rudy Giuliani was reportedly shopping around a $2 million price last year. One former pardon-office lawyer… said they were hearing lobbyists go as high as $5 million to work their connections in the White House.”

Last Tuesday, in his State of the Union address, Trump asked that Congress “pass tough legislation to ensure that violent and dangerous repeat offenders are put behind bars and importantly, that they stay there.” Trump is not a friend of federal inmates who have neither connections nor a lot of money. Yet I hear weekly from prisoners believing that Trump is about to grant a large number of commutations to federal prisoners.

Not likely. All that is certain is that OPA has been broken and made irrelevant by the White House. “It’s heartbreaking,” one attorney who left OPA shortly after Oyer was fired told New York. “It’s not that they’re doing it differently that makes it heartbreaking. It’s that it’s corrupt.”

New York magazine, Trump’s Pardon Office Is ‘Totally Decimated’ The team has been virtually replaced by highly paid lobbyists and friends of the president. (February 27, 2026)

Politico, Trump showcases gruesome stories throughout the night (February 24, 2026)

~ Thomas L. Root

Contraband and Lousy Food – Update for February 27, 2026

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A REMARKABLE ADMISSION… AND A WARNING

BOP Director William K. Marshall took to video last week to describe with uncommon candor the BOP’s losing battle with contraband in its facilities.

In a 5-minute video posted on the BOP website, Marshall said BOP staff is confronting a steady stream of drugs, weapons and drone drops, some of which is being introduced by corrupt BOP employees.

In the last 10 months, BOP staff have used Narcan in more than 500 apparent overdose incidents. Drugs found in facilities include fentanyl, methamphetamine, marijuana, liquid-soaked papers, Suboxone strips, amphetamines, mushrooms and vapes. In the same time period, Marshall noted, the BOP has intercepted 228 drone drops, seized nearly 17,000 cell phones, confiscated 4,300 weapons, recovered nearly 50 lbs. of methamphetamine, and stopped 231 visitors with contraband.

Notably, Marshall disclosed that the BOP has conducted contraband investigations involving 260 staff members. He recounted one case in Texas where a staff member was caught smuggling tobacco into a facility. 

It is both evidence of the severity of the problem and of Marshall’s willingness to recognize reality that he acknowledged that some of the contraband problem is staff-driven. (But then, in the past 10 months, Marshall has proven himself to be a very different director. He is the director who looked at a plate of expired dining hall food being served to an inmate during a facility visit last summer and asked a warden, “Would you eat that? If the answer is ‘no,’ then don’t serve it. Period. That’s` not just about food safety, that’s about human decency”).

As for the contraband problem, Marshall said, “These numbers represent real threats stopped by real people. But for every attempt we catch, others are still trying.” And he had a warning: “We are prosecuting anyone, whether a visitor, a staff member, or an inmate who attempts to introduce contraband into our facilities. This unified approach sends a clear message – criminal activity in or around federal prisons will not be tolerated, and those responsible will be held accountable.”

William Marshall, Growing Threat of Contraband in the Bureau of Prisons (February 17, 2026)

 

Forbes, “Would You Eat That? A Leadership Question at the Bureau of Prisons (February 11, 2026) 

~ Thomas L. Root

Bill Seeks To Cut Away Federal Criminal Law Thicket – Update for February 26, 2027

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BILLS SEEK TO IDENTIFY FEDERAL CRIMINAL CODE BLOAT

Senators Mike Lee (R-UT) and Chris Coons (D-DE) last week introduced S. 3868, the Count the Crimes to Cut Act, a bill aimed at addressing the overweight federal criminal code. The bill, cosponsored by two Republicans and two Democrats, would require the Attorney General to publish a list of all federal criminal statutory offenses, including the elements for each offense, the potential criminal penalties, prosecution data from the past 15 years, and mens rea requirements.

The bill, already passed by the House of Representatives as H.R. 2159, would create a searchable database of the estimated 5,000 federal crimes.

“Meaningful criminal justice reform requires more than good intentions—it takes a serious examination of what’s already on the books,” said Sen Peter Welch (D-VT), one of the bill’s cosponsors. “Congress has a responsibility to understand the full scope of the federal criminal code to promote public safety. This bipartisan legislation will increase transparency, reduce overcriminalization, and ensure due process in our criminal justice system.”

The bill has been endorsed by the National District Attorneys Association, the National Association of Criminal Defense Lawyers, the Federal Defenders, Families Against Mandatory Minimums, the Due Process Institute, and the R Street Institute.

The conservative reform organization Right on Crime observed:

The average American is estimated to commit multiple felonies a day without knowing it. This isn’t a punchline or a hypothetical nightmare — it’s a reflection of how vast and unmanageable our federal criminal code has become. The body of federal criminal law has grown so large that no person or institution has been able to definitively count how many crimes currently exist. The result is a justice system that is unfocused, inconsistent, and increasingly ineffective.

S.3868, Count the Crimes to Cut Act

H.R. 2159, Count the Crimes to Cut Act

Press Release, Lee Introduces the Count the Crimes to Cut Act (February 19, 2026)

Press Release, Welch Joins Bipartisan Legislation to Modernize Federal Criminal Code (February 19, 2026)

~ Thomas L. Root

Who Wants to Be A Prison Guard? – Update for February 25, 2026

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BOP SHORT STAFFING WAS A HOT TOPIC LAST WEEK

In a finding that rivals Newton’s conclusion that gravity makes apples fall to the ground, a Congressional Research Service report last week determined that non-competitive pay and difficult working conditions are main causes of longstanding understaffing at the Bureau of Prisons, a problem that has persisted despite paying recruitment and retention incentives, using shortcut “direct hire” authority, and promising student loan repayments for employees.

The BOP had always run vacancy rates in the 10-12% range, but that jumped to the 17-18% range over 2018-2021, and then again to the 22-25% range after the pandemic. Over the six years ending in 2002, overtime costs more than doubled to $275 million even while the number of correctional officers fell 22% from about 19,000 to about 15,600.

“There are questions about whether pay for federal COs is competitive with other federal law enforcement agencies and the private sector,” the report said. “Candidates for CO positions who have college degrees might also consider seeking entry-level law enforcement officer positions for which they qualify with other federal agencies, which might pay more.”

The differences have grown greater recently, CRS said, as agencies – including CBP and ICE – have offered larger incentives while the BOP has “paused offering new recruitment incentives and have ended some retention incentives due to budgetary constraints.”

Last Friday, Democrats on the House Judiciary Committee demanded details on BOP plans to address these “major and long-time staffing shortages,” Federal News Network reported.

In a letter sent to BOP Director William K. Marshall III from top Democrats on the House Judiciary Committee warned that workforce issues have reached a “crisis point,” leading to operational challenges and unsafe conditions in the federal prison system.

“By far, the most significant challenge to BOP’s ability to fulfill its public safety mission is its pervasive shortage of critical staff — particularly of correctional officers, healthcare professionals and mental health specialists,” the letter stated.

While the BOP inmate population fell slightly last year, “it still exceeds BOP’s capacity,” the letter asserted. “Moreover, any population reduction likely is offset by the influx of thousands of immigrant detainees BOP agreed to accept. Despite the obvious need to retain its workforce, in March 2025, BOP cut pay to frontline officers by as much as 25% [and] institute[ed] a hiring freeze in May 2025.”

Although the BOP received $3 billion in additional funding in last summer’s One Big Beautiful Bill, “it appears that BOP only recently posted open correctional officer positions to the public. Further, reporting revealed that the Bureau has lost more than 1,400 staff members as a result of heavy recruitment for positions that come with generous salaries and signing bonuses from Immigration and Customs Enforcement (ICE). One BOP official told ProPublica, “We’re broken and we’re being poached by ICE.”

The letter asks the BOP to report the efforts it has undertaken to attract and recruit qualified candidates and retain current employees. The Democrats are especially interested in the number of BOP COs lost to higher-paying ICE jobs.

Unsurprisingly, BOP employee unions last week endorsed H.R. 7033, the bipartisan Federal Correctional Officer Paycheck Protection Act of 2026 introduced last month. The bill aims to boost BOP staff recruitment and retention by raising pay for BOP employees working in custodial settings with direct inmate contact by up to 35%.

Sam Metcalf, president of AFGE Local 0701, told Corrections1 last week that higher pay is needed to reduce the heavy use of augmentation — a practice in which non-custody staff are reassigned to cover correctional officer posts. 

FEDWeek, Report Lays Out Causes, Effects of Bureau Understaffing (February 19, 2026)

Federal News Network, House Democrats Press Bureau of Prisons leadership on staffing ‘crisis’ (February 20, 2026)

Letter from Jamie Raskin to William K. Marshall III, February 20, 2026

HR 7033, Federal Correctional Officer Paycheck Protection Act of 2026

Corrections1, Union backs bill proposing 35 pct base pay increase for federal correctional officers (February 20, 2026)

~ Thomas L. Root 

11th Circuit Defines “Available Caregiver” for Compassionate Release – Update for February 23, 2026

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I’M AVAILABLE

One extraordinary and compelling reason for grant of compassionate release under 18 USC 3582(c)(1) is that the prisoner has a loved one – child, spouse, sibling, parent – who is incapacitated by illness or injury and needs a caregiver.  The catch is that (except in case of a spouse) the prisoner must be the “only available caregiver” for the family member under Guidelines 1B1.13(b)(3)(C).

No one has been quite sure what constitutes the “only available caregiver.” Last week, the 11th Circuit became the first appellate court to weigh in on the question.

Rufino Robelo-Galo petitioned his sentencing court for compassionate release, arguing that he was the “only available caregiver” for his incapacitated father. The district court found that Rufino’s son, Elmer, was available to help the incapacitated dad, and, as a result, Rufe was not the only available caregiver. The court denied the compassionate release motion, and Rufino appealed.

Last week, the 11th Circuit upheld denial of the compassionate release motion. To prove extraordinary and compelling reasons for grant of compassionate release under USSG 1B1.13(b)(3)(C) – the incapacitated family member provision – the Circuit ruled that an inmate must demonstrate that no other person is both qualified and free to provide the needed care.

“Whether an alternative caregiver is both qualified and free, the 11th said, “will turn on the unique facts of a particular case, but we identify several factors that district courts should consider in making that assessment.” Those may include

    • whether legal barriers (such as immigration status or active duty military) prevent the potential caregiver from providing care;
    • whether physical or logistical barriers exist to caregiving, such as geographic distance (which“may render caregiving impracticable depending on the circumstances. A potential caregiver who lives across the country is less free to care for an incapacitated relative than a potential caregiver who lives in a neighboring town;”
    • whether knowledge or capability-based barriers (such as language or specialized skills) might affect the caregiver’s qualifications;
    • whether “familial dynamics or relationship history” – such estrangement or history of abuse – may bear on an alternative caregiver’s availability. The Circuit noted that “evidence that a family member or friend has previously cared for the incapacitated person supports a finding that the family member or friend is available;” and
    • whether economic, financial, or employment-related barriers would impact a caregiver’s availability.

In this case, Rufus argued that none of his five children was available to serve as the grandfather’s caregiver. One child was deceased; one’s whereabouts were unknown; two lived in the United States and could not relocate to Honduras; and the remaining child – Elmer – lived in Honduras but was four hours away. Elmer could not travel back and forth to care for his grandfather because he did not have a car, Elmer could not accommodate his grandfather in his own home because of space constraints, and that Elmer could not relocate to his grandfather’s home because he would not be able to find work and provide for his own children.

The district court, however, reasoned that because Elmer was “within hours of the incapacitated family member,” Rufus was not “the only available caregiver for his incapacitated father… [and] that “a finding of compassionate release cannot rest solely on avoiding such inconvenience for a convicted inmate’s family.”

Being the first Circuit case to address the meaning of “available caregiver” in detail, the 11th’s decision will undoubtedly become the “go-to” ruling on the question across other circuits.  Anyone filing a compassionate release motion arguing an incapacitated family member should address the factors identified by Rufus’s court.

United States v. Robelo-Galo, Case No. 24-12128, 2026 U.S.App. LEXIS 4650 (11th Cir. February 17, 2026)

~ Thomas L. Root

Bowe Gets His §2255 Second Chance – Update for February 20, 2026

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11TH CIRCUIT GIVES BOWE ANOTHER ARROW

You may remember that a month ago, Michael Bowe – convicted 10 years ago of conspiracy to commit a Hobbs Act robbery, attempted Hobbs Act robbery, and using a gun during the offenses in violation of 18 USC § 924 – won his Supreme Court case. On January 12, 2026, SCOTUS ruled that while 28 USC § 2244 provides that a denial of authorization “to file a second or successive application” shall not be subject to Supreme Court review, the limitation does not apply to federal prisoners. The Supremes said the limitation is housed within 28 USC § 2244, “which imposes several strict requirements that apply only to state prisoners.” What’s more, subsection 2244(b)(3)(E) addresses only “second or successive application’ but “unlike state prisoners who file such ‘applications,’ federal prisoners file ‘motions.”

Mike filed and lost a § 2255 motion in 2016, arguing that Johnson v. United States, which invalidated the residual clause in the Armed Career Criminal Act (18 USC § 924(e)), also invalidated his § 924(c) conviction. He lost. He filed a second § 2255 motion in 2019, after United States v. Davis held that conspiracy to commit a vviolent crime was not itself a violent crime. He lost again, because while Davis announced a new, retroactive constitutional rule, Mike’s attempted Hobbs Act robbery conviction was still a crime of violence.

After United States v. Taylor held in 2022 that attempted Hobbs Act robbery was not a crime of violence, Mike once again asked the 11th Circuit for authorization under § 2255(h), arguing that Davis and Taylor leave none of his convictions as valid predicates for a § 924(c) charge. The Circuit dismissed the part of his request resting on Davis, reasoning that the claim had been “presented in a prior application” and that the panel lacked jurisdiction over such old claims under § 2244(b)(1) –  a statute that on its face applies to state prisoners seeking leave to file a second 28 USC § 2254 petition in federal court but has ambiguously been applied by federal appeals courts to federal § 2255 movants as well.

The Supreme Court reversed, holding that § 2244(b)(1)’s old-claim bar – that states that “[a] claim presented in a second or successive habeas corpus application under § 2254 that was presented in a prior application shall be dismissed” – applies only to state prisoners.

Last week, the 11th  ruled that Mike could go forward with a new § 2255 motion. “Based on Taylor and the 11th Circuit’s Brown v. United States decision, Bowe contends that neither of his predicate offenses — conspiracy to commit Hobbs Act robbery (Count 1) and attempted Hobbs Act robbery (Count 2) — can now quality as a ‘crime of violence’ that would support his § 924(c)(1)(A) conviction (Count 3) for using, brandishing, or discharging a firearm during a crime of violence,” the 11th said.

Bowe has made a prima facie showing that he meets the statutory criteria in § 2255(h)(2)… But a prima facie showing case is not a final showing entitling an applicant to relief. A prima facie showing is only the necessary first step. He still has to show the district court that he is entitled to the relief he seeks. As we have explained: “Things are different in the district court. That court has the benefit of submissions from both sides, has access to the record, has an opportunity to inquire into the evidence, and usually has time to make and explain a decision about whether the petitioner’s claim truly does meet the § 2244(b) requirements. The statute puts on the district court the duty to make the initial decision about whether the petitioner meets the § 2244(b) requirements—not whether he has made out a prima facie case for meeting them, but whether he actually meets them…”

In re Bowe, Case No. 24-11704, 2026 U.S. App. LEXIS 3876 (11th Cir. February 6, 2026)

Brown v. United States, 942 F.3d 1069 (11th Cir. 2019)

United States v. Taylor, 596 U.S. 845 (2022)

United States v. Davis, 588 U.S. 445 (2019)

Bowe v. United States, Case No. 24-5438, 2026 U.S. LEXIS 4 (January 9, 2026)

~ Thomas L. Root