Department of Justice Slow in Implementation of First Step Act

DOJ "Slow Walking" Congress' Mandate to Fully Implement FSA; SCOTUS Updates

by Derek Gilna

            We applaud the news of yet another Presidential pardon, of Momulu Stewart, who was freed after two decades in prison, with the efforts of Kim Kardashian and the Georgetown Law School. The U.S. Supreme Court (SCOTUS), will consider Levert v. U.S., and Ziglar v. U.S. In Levert, the question is "whether, or under what circumstances, a criminal defendant pursuing a second or successive motion under 28 U.S.C. § 2255 is entitled to relief under a retroactive constitutional decision invalidating a federal statutory provision, when the record is silent as to whether the district court based its original judgment on that provision or another provision of the same statute."

            In Ziglar, the question is whether the court of appeals correctly affirmed the denial of Joe Ziglar’s motion to vacate his sentence based on Johnson v. United States, when the district court found that Ziglar had failed to show that he was sentenced under the residual clause of the Armed Career Criminal Act of 1984, which was invalidated in Johnson, as opposed to the ACCA’s still-valid enumerated-offenses clause."

            These cases have broad implications for pending and future petitions, although most courst considering the question thus far have ruled that if district courts were silent on the residual clause issue during sentencing, it is presumed that the void residual clause was the basis for the conviction. Given this court's hostility to overbroad construction of penal statutes, our opinion is that the government will lose in both cases.

            SCOTUS, as noted in the Gundy decision, has shown continued hostility to overbroad, punishment-increasing actions by both federal district courts, and especially by federal administrative agencies, of sentencing laws, and rules implementing clear Congressional mandates. This brings us to DOJ's hostility to the new FSA, manifesting itself in frivolous objections to sentence relief, and arbitrary and capricious denial of compassionate release (Nothing new here). Unfortunately, prisoners can expect only limited help from PDs in these matters, as their resources are stretched to the breaking point, which is why those of you with FSA relief coming have heard little from them.

            In the circuits, In U.S. v. De La Torre, 18-2009 (consol.), (7th Cir. 10-10-19), the court vacated and remanded defendants Chapman and Rush's 841 convictions, Based upon the finding that their Indiana and Illinois prior drug convictions did not qualify as predicate offenses, most notably finding "plain error." This case has important , positive implications for those of you with drug priors in both states.

            In the Eighth circuit, the holding of U.S. Hollingshead had both positive and negative implications.  He was charged with 922f1 and 924a2 offenses), and although his conviction was affirmed, the imposition of domestic violence and anger management treats as conditions of supervised release was stricken, based upon his timely objection to findings in his PSR/PSI (possible implications for your future 2255 filings). However, the court distinguished (and rejected) his Rehaif argument, since he was already a convicted felon, citing US v Benamar, 17-50308, (9th Cir. 9-5-19), under "plain error."

First Step Act Updates: How to Get Relief

How to Unlock the Benefits of the First Step Act; Supreme Court and District Updates

by Derek Gilna

            The First Step Act (FSA) of 2018 has opened the door for federal courts to play a stronger role in possible sentence relief, but only if you are able to successfully navigate the process.   The good news for FSA is that the government is often  put on the defensive and forced to present frivolous arguments in the face of clear Congressional intent to shorten sentences for those eligible and to grant relief to elderly and ill prisoners, in a widely expanded compassionate release process.

            Almost 10 months have elapsed since the passage of FSA, and the DOJ and federal prison system are still not giving out correct information to prisoners and not following its own program statements that tracks the statute. "The form is not available," or, "Your facts make your ineligible," are often the response.    Public defender offices, inundated with applications for new Crack law petitions, are in no position to assist.

            The fact is that courts on only get involved based upon the facts placed before them, and that means getting back into court.    You are already aware that 2255 habeas petitions, both "original,"   filed within one year after your direct appeal is decided, or a "second-successive," when new statutes (like FSA), new case law, or new facts not previously available or applicable arise, are valuable tools, but only if you use them correctly. The majority of courts have found FSA contains language that permits sentencing courts to consider post-conviction rehabilitation, and can order a complete resentencing.

            In the US Supreme Court, (SCOTUS),  Paul v US, 17-8830, attacks the DOJ's authority to promulgate SO regulations violates the constitutional nondelegation doctrine, and current SCOTUS hostility to the administrative state makes this a case to watch. The 7th Circuit heard arguments in the US v Atwood case in late September, which involved his career-offender designation. The same circuit's 10-10-19 decision in De La Torre, following its 2018 Elwood decision, bodes well for Mr. Atwood's success.

            As promised, we revisit the so-called "stash-house" cases, specifically the US v Mayfield decision, 11-2439, (7th Cir. 2014), which resulted in his release for "time-served."  This  followed his guilty plea to a face-saving superseding indictment, negotiated by the U of C law clinic, which also terminated his supervised release. Sadly, his success was not replicated by the majority of similar fact situations, but at least forced these types of entrapments being abandoned  by police after federal judges voiced their opposition. to the practice.

            In US v. Bishop, 17-15471, 10-11-19, the government-friendly 11th Circuit affirmed a conviction on other grounds, but remanded based upon the district court's erroneous application of a 4-leel enhancement under 2K21b6b, for possessing a firearm  in connection with another felony offense. In an interesting result, in Webb v. Davis 17-51143, (5th Cir. 10-16-18), the court also affirmed a state habeas petition based upon the appeal waiver, but ruled that a 60b CAN be available if a second-successive 2255 is not possible.

Shular Case Takes Center Stage as Supreme Court Begins New Term.

First Step Act Updates

by Derek Gilna

            The matter of Eddie Shular v United States continues to wind its way through the

US Supreme Court (SCOTUS), with amicus briefs in supports recently filed by the National Association of Criminal Defense Attorneys (NACDL) and FAMM.  Shular pleaded guilty to charges of possession of a firearm by a convicted felon and to controlled substances possession, and was classified as an armed career criminal because of six previous drug convictions in Florida. He objected to the classification in court, arguing his previous convictions were not "serious drug offenses" under the Armed Career Criminal Act (ACCA.)  After  by  11th Circuit affirmed , he filed with SCOTUS.

            NACDL's amicus group noted that the case is ripe for adjudication since the circuits do not agree on whether the categorical approach should control ACCA prosecutions of serious drug crimes: "Although this Court has repeatedly affirmed that the categorical approach applies to ACCA’s 'violent felonies' provision, it has not squarely addressed whether it applies to “serious drug offenses.” But there is no textual, policy, or other reason to treat this provision differently from other predicate offenses." A positive outcome would have major ratifications on thousands in the federal system.  No date has yet been set for argument of this case.

            Rumors continue to fly on implementation of sentence credits for programming under the First Step Act (FSA), especially since the release of the Prisoner Assessment Tool Targeting Estimated Risk and Needs (PATTERN) in July. There has been no official  release of information by the federal prison system on this subject, despite pressure from the American Bar Association, and also Congress.   The agency is responsible by law for publishing proposed regulations. When it is available we will share it with you.

            Petitions seeking the "second look" found by criminal justice experts in the FSA continue to be filed.   Given their limited resources, it is unlikely that federal defenders will involve themselves in these matters, so any action will have to be initiated by you. 

            In Congress, Congressman Ted Deutch introduced HR 4018, which provides, "that the amount of time that an elderly offender must serve before being eligible for placement in home detention is to be reduced by the amount of good time credits earned by the prisoner..." as an amendment to the 2nd Chance Act.  We would be surprised if either house takes up this bill, but it at least puts DOJ on notice that Congress is considering the issue.

            In the Fourth Circuit, in US v Cornette, 932 F.3d 204 (4th Cir. 2019), the court held that retroactive ACCA claims are not barred by a defendant's appeal waiver, and defendant's 1976 Georgia conviction is no longer a valid ACCA predicate The court swept aside the objection that the sentencing transcript did not state whether the ACCA stemmed from an elements clause of the residual clause, citing US v. Winston, 850 F.3d 667 (4th Cir. 2017).

            Permit me to share a quote from Winston Churchill: "As one's fortunes are reduced, one's spirit must expand to fill the void."  Let not your heart be troubled.

Shular Case Amicus Groups Filed in Important ACCA Case

Shular Case Takes Center Stage as Supreme Court Begins New Term;   FSA Updates

by Derek Gilna

            The matter of Eddie Shular v United States continues to wind its way through the

US Supreme Court (SCOTUS), with amicus briefs in supports recently filed by the National Association of Criminal Defense Attorneys (NACDL) and FAMM.  Shular pleaded guilty to charges of possession of a firearm by a convicted felon and to controlled substances possession, and was classified as an armed career criminal because of six previous drug convictions in Florida. He objected to the classification in court, arguing his previous convictions were not "serious drug offenses" under the Armed Career Criminal Act (ACCA.)  After  by  11th Circuit affirmed , he filed with SCOTUS.

            NACDL's amicus group noted that the case is ripe for adjudication since the circuits do not agree on whether the categorical approach should control ACCA prosecutions of serious drug crimes: "Although this Court has repeatedly affirmed that the categorical approach applies to ACCA’s 'violent felonies' provision, it has not squarely addressed whether it applies to “serious drug offenses.” But there is no textual, policy, or other reason to treat this provision differently from other predicate offenses." A positive outcome would have major ratifications on thousands in the federal system.  No date has yet been set for argument of this case.

            Rumors continue to fly on implementation of sentence credits for programming under the First Step Act (FSA), especially since the release of the Prisoner Assessment Tool Targeting Estimated Risk and Needs (PATTERN) in July. There has been no official  release of information by the federal prison system on this subject, despite pressure from the American Bar Association, and also Congress.   The agency is responsible by law for publishing proposed regulations. When it is available we will share it with you.

            Petitions seeking the "second look" found by criminal justice experts in the FSA continue to be filed.   Given their limited resources, it is unlikely that federal defenders will involve themselves in these matters, so any action will have to be initiated by you. 

            In Congress, Congressman Ted Deutch introduced HR 4018, which provides, "that the amount of time that an elderly offender must serve before being eligible for placement in home detention is to be reduced by the amount of good time credits earned by the prisoner..." as an amendment to the 2nd Chance Act.  We would be surprised if either house takes up this bill, but it at least puts DOJ on notice that Congress is considering the issue.

            In the Fourth Circuit, in US v Cornette, 932 F.3d 204 (4th Cir. 2019), the court held that retroactive ACCA claims are not barred by a defendant's appeal waiver, and defendant's 1976 Georgia conviction is no longer a valid ACCA predicate The court swept aside the objection that the sentencing transcript did not state whether the ACCA stemmed from an elements clause of the residual clause, citing US v. Winston, 850 F.3d 667 (4th Cir. 2017).

            Permit me to share a quote from Winston Churchill: "As one's fortunes are reduced, one's spirit must expand to fill the void."  

Federal Legal Center, Inc.

Derek A Gilna, J.D., Director

113 McHenry Rd., #173

Buffalo Grove, IL  60089

(Also in Indiana)

dgilna1948@yahoo.com