Second Step Act Considered to Build Upon First Step Reforms

What is the Likelihood of a "Second Step Act?" How Presidential Politics Will Make It Happen. 

by Derek Gilna

            Criminal Justice reform is the one reliably bipartisan issue in a politically divided country. The President receipt of the Bipartisan Justice Award from predominantly African American Benedict College in the past week, based upon his support of First Step Act (FSA), effectively one-upped Democratic primary candidates who have been touting their own criminal justice plans. He also symbolically signaled his opposition to the DOJ's bureaucratic slow-walking of the FSA reforms that have handed to almost all federal prisoners a path to sentence reduction.

            In his acceptance speech, the President challenged the Democratic Party's decades of control over their core constituency of minority voters, and forced its field of candidates (which contains three former aggressive prosecutors), to embrace more radical reform. However, he was also called to do more to bring DOJ into FSA compliance.

            In the U.S. Supreme Court, three cases of interest await action, including Eady v US, Caldwell v US, and Paul v US. In Eady, the court is asked to review the "knowingly" provision of 922(a)(2) cases to see if it applies to both possession and status elements of a 922(g) crime. In Caldwell and Paul, the court is considering whether a SO registration and Notification Act delegation to the AG violates the constitutional nondelegation doctrine.

            More courts continue to grant compassionate release.    After the case of Brittner v US, 16cr15 (Dist. of MT, 2-18-19) granted relief based upon an "extraordinary and compelling" medical reasons, more recently, in US v Walker, 11-cr270 (ND OH, 10-17-19, the court granted relief based upon extraordinary rehabilitation while in prison. In US v Cantu, 5cr458, (SD-TX, 6-17-19), the court placed Cantu in home confinement based upon  "extraordinary and compelling reasons (that) warrant a reduction of...sentence."

            In a 9th CIrcuit case that has implications for FSA petitions where drug quantity is an issue, the court ruled that the drug quantity in the PSR adopted by the sentencing court is NOT binding in 3582(c)(2) sentence reduction proceedings, and did not disqualify petitioner from FSA relief.  US v. Rodriguez, 9221 F.3d 1149 (9th Cir. 2019).

            The 9th also found in case involving the illegal distribution of various controlled substances the  assessment of the drug quantity incorrectly increased a sentencing factor, and that when that "has an extremely disproportionate effect on the sentence relative to the offense of conviction, the government may have to prove the factor by clear and convincing evidence." US v. Ridgill, 18-50128, (10-23-19), quoting US v. Felix, 561 F.3d 1036,`045 (9th Cir. 2009) and US v. Mezas de Jesus, 217 F. 3d 638 (9th Cir. 2000).

            The government might also be facing some challenges in its methodology in determining base offense level in meth cases, based upon the Alaska case of US v. Rodriguez, 17cr31, 4-5-19, where the district court said that it "will routinely grant downward variances...to correct this disparity." 

Yet Another Compassionate Release Granted by District Court

Supreme Court Accepts Yet Another ACCA Case; District Court Grants FSA Compassionate Release

by Derek Gilna

            The federal district court in Nebraska ruled in US v. Urkevich, 3-cr-37, 2019 WL 6037391 (D. Neb. 11-14-19), that it had the power to reduce sentences under 18 USC 3582(c)(1)(A) under the First Step Act (FSA).It stated:  "A reduction in his sentence is warranted by extraordinary and compelling reason, specifically the injustice of facing a term of incarceration forty years longer than Congress now deems warranted for the crimes committed...the Defendant has demonstrated that he poses no current danger to the safety of any other person or...the community," and reduced his sentence accordingly.

Note that Petitioner was NOT elderly OR terminally ill. Please advise if you have any questions regarding this process that will free hundreds if not thousands of federal prisoners, as judges continue to expand their power to grant relief.

            The Supreme Court has granted a writ of cert of another ACCA case, Walker v. US, 19-373, which asks whether a criminal offense that can be committed by mere recklessness can qualify as an ACCA "violent felony." We expect that SCOTUS, which clearly does not like ACCA, will use this case to further limit its use in a new class of cases, and open the door for retroactive  relief for more prisoners.

            One of the more misunderstood recent SCOTUS decisions is arguably the Rehaif case, which unfortunately was NOT made retroactive on collateral review since it involved a new rule of statutory, not constitutional law. Nonetheless, that has not prevented even the non-prisoner-friendly 11th Circuit from opening the door for it to be raised in a post-conviction filing.  In Re: Joseph Demond Wright, 19-13994-A (11th Cir. 11-7-19), the court denied a second 2255 on the above grounds, but stated that he could bring his claim "as a 2241 petition through 2255(e)'s saving clause."   This holding prompts us to state that it is now worthwhile to re-review your case if it has certain Rehaif facts, and there is a possible pathway to relief.

            The 8th Circuit also granted Rehaif relief in US v. Davies, 18-2662, (8th Cir. 11-8-19), holding that "The Supreme Court explained in Rehaif that a defendant without knowledge of his status under 922(g) 'may well lack the intent needed to make his behavior wrongful,'" and remanded for a new trial.  In US v. Balde, 17-3337, (2d. Cir. 11-13-19), the court vacated the conviction, stating that although "the indictment's failure to allege explicitly that Balde knew he was unlawfully in the US was not a jurisdiction defect," there was "plain error" in his acceptance of the guilty plea.

First Step Act Implementation Slow, but Steady

First Step Act Implementation Slow, but Steady, but Courts Ready to Help Ensure Compliance

by Derek Gilna

            The passage of the First Step Act (FSA) of 2018 was supposed to be a game-changer, and for some, that has been true.   However, despite Congress' and the President's stated intentions, the unelected criminal justice bureaucracy has done everything in its considerable power to water-down the benefits for the confined. Career prosecutors continue to file objections to compassionate release requests and sentence reduction petitions, but the courts have generally sided with Petitioners.   Public defender offices have been granted no additional funds or personnel to review cases and push your cases forwards, which means that you are generally on your own.

            Although several bills have already been introduced in the 116th Congress proposing additional reforms, the House and Senate Judiciary Committees are focused on overseeing implementation of FSA before turning to new and possibly more controversial changes. The new Prisoner Assessment Tool Targeting Estimated Risks and Needs (PATTERN) will not apparently be ready until the first of the year, and there is a lot of misinformation about who does and does not qualify. Contrary to rumors, violence in your background, unless it falls into certain discrete categories, does not automatically prevent you from receiving sentence credit from completing programming.

            Although there were no new cases heard or decided in the U.S. Supreme Court, the circuits were busy.  In the 9th, in US v. Ridgill, 19-50128, the court affirmed the controlled-substances conviction but reversed and remanded for resentencing, by finding that the district court's finding of drug quantify was contrary to the preponderance of the evidence standard, and the sentencing factor had "an extremely disproportionate effect on the sentence relative to the offense of conviction."

            In the 2d Circuit, in the case of US v Tanner, 18-3598 (consol.) 10-31-19, the conviction was affirmed, but the court again faulted the "methodology to determine the victim's actual loss," and that "the District Court erred in ordering the defendants to forfeit more than the amount of their criminal proceeds."

            In the 8th Circuit, in US v. Sterling, 18-2974, 11-1-19, the court ruled that "the government "failed to prove estimated drug quantity about base offense level 24, with information that 'has sufficient indicia of reliability to support its probably accuracy,'"

and remanded for resentencing.

            Finally, in US v Rabb, 18-1678, 10-30-19, the court reversed and remanded a fentanyl and cocaine case for resentencing, finding that his NY conviction for second-degree robbery did not qualify as a predicate for CO purposes, and invoked the SCOTUS Stokeling opinion that non-aggravated robbery did not qualify.