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 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.
