Clemency Grants by President Raise Hopes for More Reforms

Pardons, Clemencies, Criticism of Sentencing Guidelines Overshadow 50 Year Drug War Anniversary

by Derek Gilna

            Although the President's handful of pardons and clemencies (including Crystal Munoz, shackled while giving birth in prison) got most of the headlines, the draconian U.S. Sentencing Guidelines (SG) also received some long-overdue criticism in the sentencing of Roger Stone. Although the headlines said the President's Attorney General (AG) had weighed in to argue for a lesser sentence for Stone, the irony is  that the AG was in effect following the memo of Obama's AG Eric Holder to show more restraint in sentencing. Nonetheless, the fact is that the SG are now receiving overdue criticism.

            A typical media quote: "Arguably the worst part is that federal sentencing under the Guidelines takes into account all the defendant’s “relevant conduct”—including conduct as a kid, including whether or not the conduct was charged and including charges that have resulted in acquittal...the standard of proof in court for aggravators is 'proof' by the preponderance of the evidence—which means...more likely than not—rather than 'beyond a reasonable doubt.'”             These developments overshadowed the renewed criticism of the Controlled Substances Act, which turned 50 years old, and started the Drug War.

            Am overlooked nugget from the media pardon frenzy was a comment from the President that these pardons were just the first of many to come BEFORE the election, not to mention after the election.    Given the criticism of the pardons came only from his political detractors, the President is now emboldened to grant more executive mercy.

            In the circuits, the 8th Circuit, in US v Hamilton, 18-2436, (8th Cir. 2-19-20), the court vacated a guilty plea for possession of heroin with intent to distribute, finding that his previous Illinois felony conviction for aggravated use of a weapon had been declared unconstitutional, permitting him to challenge his PSR for the first time on remand.

            The 9th Circuit reversed the dismissal of Nicolas Morales's petition for sentence relief based upon the passage of Proposition 47, which reduces certain theft offenses from felonies to misdemeanors, and that he was entitled to file a habeas petition to take advantage of this change. Morales v. Sherman, 17-56304, (9th Cir. 1-30-20).

            In the 7th Circuit, the court in Partee v US, 941F.3d 263 (7th Cir. 10-18-19),  reversed and remanded the district court's denial of the defendant's motion to vacate his 15-year mandatory minimum sentence for being a felon in possession of firearm, holding that two of his state priors were not ACCA predicates.

            We look forward to assisting you in the review of your cases to see if any aspects of the FSA, or the roll-out of DOJ regulations on FSA, might affect your sentence.

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

Federal Legal Center, Inc., Derek A. Gilna, JD, Director,

113 McHenry #173, Buffalo Grove, IL  60089

(Also in Indiana) , dgilna1948@yahoo.com

First Step Act Reforms Now Fully Funded

New Budget Shows that Administration is Serious About Criminal Justice Reform

by Derek Gilna

            "Show me the Money," is certainly one of the most iconic movie quotations in recent memory, and it accurately sums up criminal justice lawyers and advocates  sometimes cautious view of the impact of the First Step Act (FSA). We agree that it is hard to get excited about these FSA changes, when every day you have to endure the daily indignities from the under-trained-and-under-paid DOJ employees, some of whom feel that they are above the law. The new DOJ budget shows, however, that the Administration is fully funding these reforms.

            Many months after closing some halfway houses, cutting current prison staffs, and freezing hiring new workers, the President has begun to bypass the entrenched prison bureaucracy.    $244 million is now going to Residential Reentry Center programs to fulfill the mandate that DOJ have pre-release custody available for all, adding 8700 beds.   $37 million has been budgeted for behavioral therapy and medication for drug dependence. $23 million has been devoted to evidence-based recidivism-reduction, and $15 million devoted to NEW staff to work on FSA programs (only). Other staffing cuts remain.

            Speaking of money (saved), there is a strong push for the Senate to take up HR 4018, that would allow elderly prisoners to transition to home confinement for the remainder of their sentence, saving millions. This bill had strong support in the House, passing by a voice vote (highly unusual these days), meaning NO ONE in the 435-member House objected to its passage. It awaits Senate action, when that chamber recovers from the delays caused by the impeachment proceedings.

            Meanwhile, the President has also been aggressively courting African-American and Latino voters with advertising and programs, and hinting at additional clemencies and pardons in private meetings with supporters, knowing that gaining even minor additional votes in November will propel him to reelection.

            In the circuits, in US v Keleta, 18-2896, ( 8th Cir. 2-6-20) the court reversed and remanded a conviction on the sole grounds of eliminating a four-level role enhancement, finding that "the government failed to carry its burden of proving that (it) applied,"  and by failing to "identify any potential participants...at trial."

            In US v Serrano, 19-5141 (consol), 2-12-20, the court vacated a career offender designation and remanded for resentencing. His defense lawyer had failed to object to that designation at sentencing, but the appeals court determined that his prior Texas conspiracy to possess with intent to deliver cocaine did not qualify as a predicate offense, finding "clear error."  

Have a good week,. Let not your heart be troubled.

Federal Legal Center, Inc., Derek A Gilna, JD, Director

113 McHenry Rd. #173, Buffao Grove, IL   60089

(Also in Indiana) dgilna1948@yahoo.com

First Step Act:: Courts Forced to Step In As BOP Waters Down Its Implementation

DOJ Does Its Best To Water Down First Step, but Courts Are Granting Relief

by Derek Gilna

            This past week we have fielded many questions regarding questionable institutional implementation of First Step (FSA), which confirms that DOJ is either intentionally or negligently misinterpreting key elements of FSA. Fortunately, in instances where FSA matters have come before them, judges have generally declined to rule in favor of DOJ.   The shifting national political calculus stemming from the booming national economy and the shortage of workers is also rendering DOJ's dark worldview almost irrelevant, since businesses and the current Administration are increasingly prisoner friendly. Business knows the economy falters without workers.

            One area where DOJ is misinterpreting the law is 841(B)(1)(A), and(B)(1)((B), and (B)(1)(C), but in determining eligibility for relief, DOJ left off "death or serious bodily injury."  If you are a victim of this error, start the remedy process as soon as possible to set the stage for possible sentence relief.

            DOJ lawyers, fresh from the Inspector General's (IG) rebuke of its domestic spying, and investigatorial misconduct for shoddy investigative techniques in Foreign Intelligence court warrants (FISA) , face yet another scandal. DOJ has been accused  by the IG of improperly using requests for overseas evidence to extend the 5-year statue of limitations in fraud cases. See US v Ankush Khadori, a pending prosecution.  

            In US v Venable, 943 F.3d 187 (4thCir. 2019), the court held that retroactive application of Fair Sentencing extends to those whose supervised release was revoked and whose original sentence qualified for relief under Fair Sentencing. In the 3d Circuit, the court ruled that counsel's failure to investigate the properties of methylone after the PSA misrepresented that it was analogous to methylenedioxy-meth (MDMA) constituted ineffective assistance. Vacated and remanded.  US v. Sepling,  944 F. 3d 138, (3d Cir. 2019).

            In US v Woods, 19-5685, the 6th Circuit, in a First Step appeal, the defender, although not granted sentence relief, was found ELIGIBLE for relief, but the violent nature of his offense justified the court, in exercising its sound discretion, from granting it.  Although Woods lost his case, we gained a valuable precedent applicable in the right factual circumstances, and with a well-drawn petition.

            Two major cases further the argument that Hobbs Act Robbery is not a crime of violence for 924(c) purposes. We have previously reported on US v Rey Chea, which applied Davis and Johnson. 2019 U.S. Dist. Lexis 177651 (M.D. Cal. 2019). In the other case, US v. Tucker, 18 Cr 0119, (ED NY, 1-8-20),  the court dismissed a Conspiracy to Commit Hobbs Act Robbery and Attempted HAR count, also finding that it was NOT a crime of violence.

            As always, we stand ready to review your factual circumstances for 2255 habeas relief, alleging inadequate representation of counsel in the district court. 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.co

Super Bowl Criminal Justice Ad: Justice Reform Delivered

Super Bowl Ad Reminds Us What We Are Fighting For;   Case Updates

by Derek Gilna

            A short ad during the Super Bowl that highlighted the pure joy of Alice Johnson greeting her family after her release from Aliceville prison by order of the President, gives hope to all who have recently  questioned the commitment of the current administration to reform. The same President that gave us First Step (FSA) is now being implored to start granting the "thousands" of clemencies that he alluded to in past months, and send a powerful message to the prison bureaucrats.

`           That bureaucratic mind set is behind DOJ efforts in a few cases (81 so far) to file appeals of district court judges decision to grant FSA relief.    Fortunately, these appeals have largely failed, as appeals courts are questioning the right of DOJ to even bring the appeals on jurisdictional grounds. (Nice to see the words "DOJ" and "failed" in the same sentence.)

            In an interesting 7th Circuit decision, the court in US v Helding, 18-3270, 1-28-20, declined to approve an increase an agreed upon plea agreement drug quantity of 100 kilograms to 4679 kilograms based solely upon a CI's testimony, stating that "when a defendant objects, the evidence supporting that quantity must be found to be reliable...lest a defendant (be) sentenced on the basis of unreliable information." Reversed and remanded.

            In a highly-criticized denial of a medical compassionate release case, the 5th Circuit in US v Chambliss, 19-50741, 1-28-20, the court acknowledged the fact that the plaintiff had a terminal medical condition, but clearly disregarded FSA language and Congressional intent in denying his release, based upon his criminal history.    I predict that the US Supreme Court will soon disabuse the 5th Circuit of their faulty reasoning.

            In re: James Daily, a Florida state death penalty case, the 11th Circuit denied to reopen the 30-year old case on actual innocence, Brady violation, or constitutional violation grounds, but a concurrence raised interest points. It noted that "AEDPA cannot possibly be applied when to do so would offend the Constitution and the fundamental concept of justice that an innocent man should not be executed," quoting In re Davis, 565 F.3d at 827. (Query, what about a prisoner facing a life sentence raising similar issues?) In re Dailey, 19-15145m 1-30-20.

            Finally, another case concerning mental health defenses was recently decided in the 8th Circuit.   In Love v. US, 18-3457, 1-31-20, although the court affirmed a conviction over inadequate representation of counsel grounds (which generally MUST be raised in a 2255), the court laid the groundwork for a successful habeas by noting that an evidentiary hearing on mental health issues should have been held, and the dissent stating that it should have been held in the original sentencing proceeding.

            We look forward to hearing from you.    Let not your heart be troubled.

Federal Legal Center, Inc.

Derek A. Gilna, JD, Director,  

113 McHenry #173

Buffalo Grove, IL   60089

(Also in Indiana)

dgilna1948@yahoo.com