This is a copy of the newsletter sent to subscribers in the federal prison system on April 14, 2024.
Rahimi Could Be Watershed for 922(g) Felon In Possession – LISA Newsletter for April 15, 2024
LISA publishes a free newsletter sent every Monday to inmate subscribers in the Federal system.
Edited by Thomas L Root, MA JD
Vol 10, No 16
Christmas Season at The Supreme Court
10th Circuit Says ‘Extraordinary And Compelling Reasons’ Apply To Sentencing Factors, Too
Sentencing Commission Amendments to be Announced
Last Week on Capitol Hill
CHRISTMAS SEASON AT THE SUPREME COURT
We’re entering what I always think of as Christmas season at the Supreme Court, the final 10 weeks of what is anachronistically called “October Term 2023.” With 75% of the Court’s term done, only about 24% of its opinions have been issued. That’s common: there’s always a flurry of decisions issued in late April, May and June, with the most controversial decisions saved for the end.
The most consequential, I believe, is US v Rahimi. In 2022, the Supreme Court in NY State Rifle & Pistol Assn v invalidated a New York law that forbade individuals to carry a gun in public unless they could persuade a government official that they faced some extraordinary threat to their personal safety. Applying “originalism,” the judicial philosophy that legal text should be interpreted based on the original understanding at the time of adoption, SCOTUS reasoned that a right reserved to a tiny subset of the population (the right to carry a gun) was an infringement a “right of the people” that the Constitution says “shall not be infringed.”
Bruen holds that when defending a law that deprives an individual of the freedom to keep or bear arms, the government must show that the law “is consistent with the nation’s historical tradition of firearm regulation.” The absence of a historical regulation “distinctly similar” to a modern gun-control law is evidence of the modern regulation’s unconstitutionality.
The law banning all felons from gun possession were not adopted until the 1960s.
In Rahimi, the 5th Circuit applied Bruen, holding that 18 USC 922(g)(8) – which prohibited people subject to domestic violence protection (DVP) orders from possessing guns – violated the 2nd Amendment because, at the time the 2nd Amendment was adopted, no law keeping people subject to a DVP order was on anyone’s books.
Writing last week in the New York Times, George Mason University law prof Nelson Lund said, “Under Bruen’s originalist test, Rahimi should be an easy case. The government has not informed the Supreme Court of a single pre-20th-century law that punished American citizens, even those who had been convicted of a violent crime, for possessing a gun in their own homes. Not one.”
The problem is that the subject of the case, Zackey Rahimi, is an awful defendant. His ex-girlfriend obtained a DVP order against him on the ground that he had assaulted her, and he has been charged with several crimes involving the misuse of firearms, including shooting up a What-a-Burger when his friend’s credit card was declined.
“If the court pretends that a historical tradition of such laws existed,” Lund wrote, “it will not be faithful either to Bruen’s holding or to the court’s repeated insistence that the right to keep and bear arms is not ‘a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.’”
But following the Bruen precedent could be tough on the Justices, because the outcry of letting the Zack Rahimis of the nation keep their guns will be fierce. Still, Rahimi may have a silver lining for the 922(g)(1) felon-in-possession statute. If Zack wins, that just about guarantees that Range v AG – in which the 3rd Circuit ruled that Bruen means that a guy convicted 25 years before of a minor food stamp fraud is allowed to possess a gun – will be upheld. If Zack loses, I suspect SCOTUS will write some “dangerousness” exception into the Bruen standard. Even if that happens, many 922(g)(1) defendants will easily jump that hurdle.
Writing in his Sentencing Law and Policy blog last week, Ohio State University law prof Doug Berman said, “In the votes and voices of a number of Justices (and others), I sometimes notice that affinity for originalism starts running out of steam when the outcomes start running in concerning directions. Rahimi may prove to be another data point on that front in the coming months.”
US v Rahimi, Case No 22-915 (Supreme Ct, argued Nov 7, 2023)
NY Times, The Fidelity of ‘Originalist’ Justices Is About to Be Tested (Apr 9)
Sentencing Law & Policy, Is Rahimi an “easy case” for any true originalist to rule for the criminal defendant and against the prosecution? (Apr 10)
10TH CIRCUIT SAYS ‘EXTRAORDINARY AND COMPELLING REASONS’ APPLY TO SENTENCING FACTORS, TOO
As a procedure, compassionate release (CR) is still fairly new. Courts have only had to develop the standards for judging what constitutes an extraordinary and compelling reason for a sentence reduction and what the statute’s squishy directive that a court “consider[]the factors set forth in section 3553(a) to the extent that they are applicable” means in the last five years.
A CR motion must begin with the concession that the sentence was “sufficient but not greater than necessary” and thus complied with 18 USC 3553(a) when it was imposed. But as 4th Circuit Chief Judge Roger Gregory persuasively argued in US v Kibble three years ago, if “a district court’s original 3553(a) analysis could always prove that a sentence reduction would intolerably undermine the 3553(a) factors, then 18 USC 3582(c)(1) would, in effect, be a nullity.”
In other words, a prisoner’s reasons for a sentence reduction are relevant to the 3553(a) factor analysis as well as to the “extraordinary and compelling” standard.
The 10th Circuit reminded us of that last week. Eddie Braddock filed for CR, arguing that his kids needed a caregiver. The district court turned him down on 3553(a) factors because Eddie’s lengthy record didn’t convince the judge that Eddie would not commit new crimes.
On appeal, Eddie complained the district court “analyz[ed] the 3553(a) factors as frozen at the time of the 2015 sentencing” and “did not consider the significant mitigation” since the original sentencing, such as age, more than eight years of sobriety and exemplary conduct in prison. He acknowledged that the court did not need to make a finding on extraordinary and compelling reasons in order to deny a compassionate release, but by “failing to consider the facts supporting extraordinary and compelling reasons for release’ within its 3553(a) analysis… the district court committed legal error.
The 10th agreed that Eddie was right: a district court may dispose of a motion for compassionate release at any of the three statutory steps – lack of extraordinary and compelling reason, noncompliance with applicable Sentencing Commission policy, or inconsistency with 3553(a) sentencing factors. However, the Circuit held that “the facts allegedly establishing extraordinary and compelling reasons for release are relevant to the 3553(a) analysis” and thus, a district court cannot “deny compassionate-release relief on the ground that release is not appropriate under 3553(a) if the court has not considered the… extraordinary and compelling reasons for release.”
Eddie lost because he had not properly preserved his argument. But the 10th’s analysis is important guidance for anyone writing a CR motion. Be sure to explain why the extraordinary and compelling reasons for release impact the 3553 analysis.
US v Bradley, Case No 23-1223, 2024 USApp LEXIS 8367 (10th Cir, Apr 8, 2024)
SENTENCING COMMISSION AMENDMENTS TO BE ANNOUNCED
At a meeting this Wednesday, the US Sentencing Commission is expected to adopt proposed amendments to the Guidelines addressing acquitted conduct and patching up a Circuit split that led the 3rd Circuit to hold that “intended loss” could not be accounted for in a Guidelines loss calculation.
The Commission is also expected to fix an ambiguity in the new USSG 4C1.1 that suggests that a defendant is only disqualified if he or she has both a 3B1.1 enhancement for leader/organizer/manager/supervisor and a 21 USC 848 conviction. Most courts have concluded that despite the clunky drafting of 4C1.1(a)(10), either a 3B1.1 or a 21 USC 848 is disqualifying.
Not making the final cut for amendments were policy priorities on career offender and methamphetamine.
Sentencing Commission, Public Meeting – April 17, 2024
LAST WEEK ON CAPITOL HILL
Although SJRes 47, sponsored by Sen Marsha Blackburn (R-TN) and 28 other Republican senators, has little chance of passage, the measure to force CARES Act home confinees back to prison got pushback last week from the Law Enforcement Action Coalition, a group of police associations.
The group wrote to Majority Leader Charles Schumer (D-NY), who controls Senate business, “to strongly oppose Senate Joint Resolution 47… that would reimprison approximately 3,000 nonviolent, low-risk individuals who are currently serving their sentences of home confinement pursuant to the Coronavirus Aid, Relief, and Economic Security (“CARES”) Act. As current and former members of law enforcement, our priority is public safety. Reincarcerating these individuals is not only counterproductive for public safety but also jeopardizes their prospects for successful reentry into their communities.”
Meanwhile, the bipartisan bill to strengthen Federal prison oversight passed the House Committee on Oversight and Reform last week on a bipartisan vote, sending it to the full House for consideration. The bipartisan Federal Prison Oversight Act (S.1401 and HR 3019) would establish new, independent oversight of the Bureau of Prisons, authorize a BOP ombudsman available to prisoners and their families, and require the BOP to audit and rank the condition and safety of its facilities annually.
Sen Jon Ossoff (D-GA) wrote the bill last year after leading multiple bipartisan investigations into corruption, abuse, and misconduct at the BOP. The House version is sponsored by Reps Lucy McBath (D-GA) and Kelly Armstrong (R-ND).
The conservative criminal justice group Right on Crime wrote to Congress in advance of the Committee vote, saying, “BOP is a deeply flawed agency… [F[ederal prisons are understaffed, underfunded, overcrowded, unsafe, in disrepair, and subject to criminal activity (including, but certainly not limited to, smuggling contraband and sexual assault)… [I]ncreased visibility into the BOP will improve this broken system.”
Senate Democrats are seeking additional co-sponsors ahead of re-introducing legislation that, among other things, would eliminate federal criminal penalties for marijuana possession and establish a regulatory framework for cannabis products.
Last Monday, Schumer, Sen Ron Wyden (D-OR) and Sen Cory Booker (D-NJ) wrote to colleagues seeking co-sponsors for the Cannabis Administration and Opportunity Act, which is expected to be re-introduced by the end of this month.
“The question today is not whether cannabis should be legal—many states have already moved ahead,” the letter states. “The question now is whether cannabis should be subject to the same high regulatory standards, based on preserving public health and safety, that apply to alcohol and tobacco.”
Finally, some House Democrats have filed a bill to rename FCI Miami the “Donald J. Trump Federal Correctional Institution.”
The move comes just days after House Republicans introduced a bill to rename Washington Dulles International Airport after the former president. “Everyone knows President Trump loves to write his name in gold letters on all his buildings,” Jared Moskowitz (D-FL), one of the sponsors said. “But he’s never had his name on a federal building before, and as a public servant, I just want to help the former president. Help us make that dream a reality.”
Law Enforcement Action Coalition, Letter to Senate Majority Leader Charles Schumer (Apr 8)
S.1401, Federal Prison Oversight Act
HR 3019, Federal Prison Oversight Act
Ossoff Press Release, Sen. Ossoff’s Bipartisan Bill to Overhaul Federal Prison Oversight Passes Key U.S. House Committee (Apr 11)
Right on Crime, Letter to Rep James Comer (Apr 8)
Charles Schumer, Letter to Colleagues (Apr 8)
ABC News, House Democrats introduce bill to rename Miami federal prison after Trump (Apr 5)
The LISA Newsletter is copyright 2024, LISA Foundation, PO Box 636, Norwalk OH 44857.
For privacy, I use pseudonyms (made-up names) for any defendants in federal custody.
Your family may read our newsletter online at www.lisa-legalinfo.com. If you want to receive the newsletter, send a Corrlinks invitation to newsletter@lisa-legalinfo.com.
If you have a question, please send a new email to newsletter@lisa-legalinfo.com.