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."