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