Shular Case Takes
Center
by Derek Gilna
The matter
of Eddie Shular v United States
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
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
(Also in Indiana
