First Step Act Time Credits Roll Out Slowed by DOJ/BOP Bureaucracy

Earned-Time Credits Next on DOJ Agenda-But It is in No Rush to Implement Them

by Derek Gilna

            While the judiciary continues to put its stamp on portions of the First Step Act  (FSA),including Compassionate Release,  DOJ continues to struggle in its prompt implementation of the Earned Time Credits of FSA, and it is clear that the prison bureaucracy just isn't in a rush to do so. According to Bloomberg News,  all prisoners by the end of January should have undergone an initial assessment pursuant to implementing a new risk and needs assessment program pursuant to FSA. All those eligible should begin to be offered  recidivism reduction programming based on their identified needs by the end of the year.

            It appears that DOJ will be arguing that FSA programming will not EXPLICITY reduce sentences, but instead be used to increase pre-release custody (e.g., halfway house and/or home confinement).  In theory, these time credits can then be redeemed for early transfer into a halfway house, home confinement, or supervised release. Expect this narrow interpretation to be judicially challenged. We also await DOJ rules regarding rehabilitative programs that will lead to increased telephone and email time, expanded visitation, and more options at the commissary. We are currently reviewing recently issued proposed rules regarding increased home confinement under FSA.

            An area of interest to many is Hobbs Act robbery (HAR), which more courts are beginning to hold is NOT a crime of violence. Most circuits now hold that CONSPIRACY to commit HAR is not violent under 924(c),( Brown v US, 942f.3d 1069 (11th Cir. 2019), based upon US v Davis, applying Johnson II to the similar residual clause of 924(c), but also are using the same reason to set aside non-conspiracy HAR conviction . US v Chea (D Ca. 2019). Courts seem to be receptive to arguments that reject the conduct-specific approach rejected in Davis, and the Supreme Court would appear to be receptive to a challenge based on that argument also. We look forward to reviewing your specific facts to see whether you might qualify.

            The Sixth Circuit has found that having career offender status would not necessarily bar retroactive relief under FSA.   In our previously reported Beamus v US case,  19-5533, 2019 U.S. App. Lexis 34650 (6th Cir. 2019), the court mandated a resentencing, stating that the text of FSA "contains no freestanding exception for career offenders" (and) make retroactive the Fair Sentencing Act's changes to the statutory range for crack cocaine offenses."

            In US v Lockhart, -16-4441, (4th Cir. 1-10-20), the court held that plain error was established when he was not informed at sentencing of his possible exposure to ACCA penalties, which rendered his guilty plea involuntary, and forcing a resentencing.

            Have a good week, and let not your heart be troubled.

Federal Legal Center, Inc.

Derek A. Gilna, JD, Director

113 McHenry Rd.   #173

Buffalo Grove, IL   60089

(Also in Indiana)

dgilna1948@yahoo.com