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
(847) 878-0160
dgilna1948@yahoo.com
