Wednesday, May 27, 2015

Smarter Sentencing Act Reintroduced with Beter Chance of Passage

Reintroduction of Smarter Sentencing Act Has Broad Bipartisan Support


By Derek Gilna


            The Smarter Sentencing Act (SSA), first introduced in 2014 and reintroduced into the current, two-year Congressional session, with many co-sponsors from both major political parties, is the newest manifestation of the country’s disgust with the current state of the federal criminal justice system.  There has been both rioting and peaceful protests around the country against that system.  While DOJ and BOP officials trumpet a paltry reduction of 5000 in the federal prisoner count, to 215,000, tens of thousands of prisoners still languish, and their families and communities suffer unnecessarily.

            We are all familiar with SSA’s provisions, which give some degree of power back to the judges to mitigate the burden of mandatory minimum sentencing, and curb some the system’s worst abuses. I like its chances of passage.  Like any struggling addict or alcoholic, however, the federal criminal justice system continues to be “hooked” or “drunk” on the big-business of mass incarceration.  Over-zealous prosecutors continue to harass defendants and their over-worked public defenders or underpaid appointed counsel into one-sided plea agreements, and punish those exercising their Constitutionally guaranteed right to jury trial with long sentences and added enhancements, and allow hearsay evidence and “Ghost Dope” to affect sentencing. 

            However, public support for this system has collapsed.  Even the aged Senator Charles Grassley of Iowa, Chairman of the Senate Judiciary Committee, a roadblock to sentencing reform, is feeling the heat.  Over 50 Iowa pastors recently signed a bill imploring him to support federal sentencing reform. “The time has consider the various bipartisan bills, reach consensus, and enact broad reforms that respect ..dignity, …limit disproportionate sentences,…and encourage reintegration of (released prisoners),” they wrote.

            Also feeling some hear, the US Attorney in Chicago  recently tossed dozens of drug cases based upon “stash-house”  entrapment (where agents trolled and encouraged known felons to burglarize houses they claimed held drugs) when they were criticized by more than one federal judge for unfairly targeting minorities. The US Supreme Court recently struck down a North Carolina law requiring GPS monitoring of certain defendants after they had already completed their sentences, a violation of Fourth Amendment guarantees against unreasonable search and seizure.

            There has also been new public pressure on improving on better programming in the BOP system, which in the past in the BOP has often merely constituted “check off the box” instead of actual education. A new bill introduced recently calls for the return of Pell grants to help pay for prisoner college studies. More and more lawsuits are being filed regarding poor medical treatment (including several by this office), and pressure on the BOP to actually implement the compassionate release policy already on its books (including a recent one granted from Butner by me), as well as constant pressure on the BOP bureaucracy to actually do its job as spelled out in their program statements. It is only the beginning.


Derek Gilna, 113 McHenry Rd. #173, Buffalo Grove, IL  60089,

Thursday, May 14, 2015

White-Collar Sentencing Changes

White Collar Sentencing Changes Sent to Congress but No New Clemencies

Other New Prospects for Sentence Relief After Denied Appeals, 2255's


by Derek Gilna


            As expected, the newest US Sentencing Commission changes for this cycle have been sent to Congress, and will become effective November 1, 2015.  There is still no word on retroactivity.  Included in those changes are amendments to the concept of "Relevant Conduct," generally used by federal prosecutors to unfairly add sentence time above and beyond that agreed on in good faith by the accused in plea negotiations. Although I don't think that the changes go far enough, it's a start.  Once again, we will wait to see what the retroactive application is of these changes.

            Unfortunately, there have been no new clemencies granted since Easter, and although I remain cautiously optimistic,  this administration still is on pace to underutilize this sentence relief option compared to previous Presidents.

            I would like to revisit the case of BEGAY (Begay v. US,553 US 137, (2013), which according to our friends in the law library at FCI Sheridan, Oregon, has been successfully applied in recent 2241's filed in the 9th Circuit to vacate sentencing enhancements.  As we know, 2241's are an underutilized procedural tool when used properly to attack various inconsistencies in the sentencing process, even when you have already failed on direct appeal and 2255 filings.  Here's how it works in BEGAY fact situations.

             First, you have to have prior state offenses that although they sound like they would be serious crimes, do not meet the federal definition of predicate violent offenses.   In Begay's case it was DUI offenses, which the SC noted were not violent offenses that qualified as enhancing predicate offenses in alleged Career Offenders Situations.  This precedent has been followed already in the 9th, 8th, and 7th Circuits, with only the 5th standing athwart the progress on the issue, on other grounds. It is unsettled law in other circuits.

            Obviously, there is much more to say on  this issue than this brief summary allows, and 2241's can be granted for other reasons other than a Begay issue, but the possibility of sentence relief is there, if properly researched and addressed.  We look forward to your questions on whether you qualify for this relief.


Derek Gilna, JD

113 McHenry #173

Buffalo Grove, IL  60089

(847) 878-0160



Tuesday, May 5, 2015

Hillary Clinton's Speech Should positively Impact Sentence Reform

Sentencing Commission and Congressional Legislative Updates


By Derek Gilna


            On April 30, the U.S. Sentencing Commission promulgated its newest white-collar sentencing reforms, which will have the effect of lowering sentences for most offenders. That new sentencing change will go into effect in November unless changed by Congress (which has never happened.)  There is no word yet on whether said changes will be retroactive. Additionally, the Smart Sentencing Act continues to work its way through Congress, and hopefully will gain some traction in the coming months as candidates try to position themselves as ahead of the curve on social reform, highlighted by the riots against police misconduct in Baltimore and demonstrations in major cities across the country on this and similar social justice issues.

In the past week, I commented on Hillary Clinton’s most recent major speech which focused on sentencing and incarceration reform.  Although that speech carved out no new ground and offered no immediate legislative solutions, it did put these two oft-ignored subjects front and center into the Presidential race.   Floating these ideas early in the election cycle was a low-risk method of gauging public opinion on them before the campaign really gets into full-swing, and gives her a chance to respond to any negative reactions.   Although almost everything Hillary says is automatically attacked by her opponents, these comments were not.  This is significant for several reasons.

            One, Congressmen and Senators are not leaders, and shun controversy. Widespread public condemnation of recent police and prosecutorial misconduct, coupled with Hillary’s comments, has created political cover for legislators to actually do something to promote sentence reform.

            Two, contrary to what the media says, there is little to no difference between the major political parties on any major issue, other than nonsensical social ones that arguably should NOT be an area of government concern anyway (like abortion and same-sex marriage). Getting out front on an issue like sentence relief and prison reform allows a candidate to set himself or herself apart from the rest of the “suits” as a compassionate, forward-thinking individual worthy of a vote, while also allowing them to emphasize economic and tax savings from a reduction of prisoner counts.

            Third, the speech shows that the “War on crime” is, if not dead, on life support.  “Soft on Crime” is also a campaign catch-phrase that is D.O.A.  There is no major public figure in either party seeking longer sentences or seeking an increase in prisoner counts.

            I would be pleased to work with you in reviewing your case and seeing if you are entitled to relief, either from  sentencing errors, poor defense attorney representation, inadequate or deliberately indifferent prison medical care, or failure to grant a deserved compassionate release. 


Federal Legal Center, Inc.
Derek Gilna

113 McHenry #173

Buffalo Grove, Il  60089

(847) 878-0160