President Nominates Judge Who Would be the First Public Defender to Fill Supreme Court Vacancy

 

Biden Nominates Judge Who Would be the First Public Defender to Fill Supreme Court Vacancy; Supreme Court News;  PATTERN and Sentencing Credit Controversies Take Center Stage; COVID Cases and Appellate Updates

 

by Derek Gilna

 

            President Biden will reportedly nominate Judge Ketanji Brown Jackson to the Supreme Court. Brown successfully navigated  the Senate confirmation process when she was appointed to the federal bench about a year ago, and in that year has proven to be a competent jurist. Judge Jackson would be the first justice in decades to have worked as a lawyer representing poor criminal defendants. From 2005 to 2007, the Harvard Law graduate worked in the Washington, D.C., federal public defender’s office handling appeals for defendants who had been convicted of a range of crimes, from drug and weapons offenses and fraud to tax evasion. She would be a defendant's upgrade from Justice Breyer, who generally supported harsh sentencing laws.

            Although the news is dominated  by the war in Ukraine,  I do not believe that this will derail either the Supreme Court or Congress in their important work. My sense is that the sentencing reform bills will begin to move in late Spring, as they have broad bipartisan support, and law makers will be trying to show to voters in the Fall that they can actually pay constructive legislation.

            In the Supreme Court, one of those pending petitions is Williams v. US, 21-767,

which asks if a district court may consider the 2018 amendment to the sentences mandated by 18 U.S.C. § 924(c) in determining whether a defendant has shown “extraordinary and compelling reasons” warranting a sentence reduction under 18 U.S.C. § 3582(c)(1)(A)(i). A positive result would be, to quote a famous American, "huge."

            Also still pending are the consolidated cases of Ruan v. United States and Kahn v. United States. The Supreme Court granted certiorari and consolidated the two cases last November. Oral argument is set for March 1, 2022. The cases involve the appropriate jury instruction to be given, and the required proof of scienter (knowledge)  when the government prosecutes pain management physicians for illegal distribution of Schedule II controlled substances under 21 U.S.C. § 841(a)(1). The case "presents the question whether, and to what extent, a physician may assert a good faith defense to charges under the Controlled Substances Act (CSA)." 

            In a rare instance of something positive coming out of the pandemic, Washington's reluctance to let go of its new-found quarantine powers means that CARES releases will be with us for the foreseeable future, and probably continue until after the November election. Unfortunately, people in prison are still getting sick and dying from COVID, even after most states have relaxed their mask mandates. There are no more opaque and change resistant-organizations in DC than DOJ and the federal prison system, but Congress has introduced legislation to require any nominations be confirmed by the Seante. Let's hope that this means that the new director will come from outside the "system, " and have strong managerial abilities.

            Another major problem is DOJ's refusal to properly implement FSA law, which required all sentence credits to be posted by last January 15. As this is a clear violation of federal law, start the remedy process (although I am not convinced that it is necessary) and also send a cop out to the warden politely asking for prompt granting of FSA sentence credits to set the stage for possible litigation. The federal prison system is not exempt from following the law.

            On the COVID front, there are continued reports of substantial infection from Alderson, Carswell, Waseca, Rochester, Butner, Ashland, Oakdale, Pekin, Aliceville, to name a few, and an alarming uptick in other untreated and potentially fatal health problems. As long as people are still at risk of dying from COVID, or lack of treatment for other life-threatening chronic conditions, compassionate releases will continue. The pandemic has forced district court judges to acknowledge  the decrepit state of DOJ's health care  system. One of the questions that should be asked in compassionate release petitions is why prison medial authorities have never authorized the use of proven therapeutics for both pre and post COVID patients to mitigate both the short and long-term effects of COVID. Senator Ron Johnson recently asked why cheap and widely-available early treatments like Ivermectin, and other expensive new drugs like Remdesivir are not offered in prison, despite the National Institutes of Health (NIH) funding a study examining the effectiveness of ivermectin as an early treatment for COVID-19. https://www.ronjohnson.senate.gov/services/files/3F84D215-46DE-4FD4-A317-A110D1EF1468

            Here are a few of the most recent reported grants of compassionate release. United States v. Bland, 2020 WL 7237936, at *1 (N.D. Ind. Dec. 9, 2020), regarding,

Ashland FCI, where petitioner had served 82 out of 111 months, and had diabetes, hypertension, and removal of the spleen. Dr. Edelman said  that death from COVID-19 infection is more likely for those with diabetes because viral infection makes them more susceptible to pneumonia, kidney failure, and diabetic ketoacidosis. It remains especially critical that persons with type 2 diabetes have access to the best resources to manage glucose levels, observe social distancing measures, frequently clean, wear masks, and wear plastic gloves when they might be exposed to virus-laden surfaces.If federal sentencing presumes that incarceration will have deterrent and rehabilitative effects, then the court should not assume that 82 months of service have had no corrective effect on Mr. Bland to date.

            In United States v.  Hansen, 2020 WL 7240390, at *1 (W.D. Tex. Dec. 9, 2020,

Petitioner had  a 120 month sentence for child pornography, had served 90%, and  (1) did not engage in any predatory action, (2) did not create MISEC or participate in the activities depicted therein, (3) did not actively distribute MISEC, (4) cooperated with investigating agents, and (5) immediately accepted responsibility for his actions;

 a modest reduction of Defendant’s sentence will not minimize the seriousness of his offense or otherwise frustrate the purpose of the sentencing guidelines. He was confined at FCI  Texarkana, had a debilitated immune system due to splenectomy, chronic sinus infections, and a strong release plan.

            In United States v. Mays, 2020 WL 7239530, at *1 (S.D. Ind. Dec. 9, 2020)

Petitioner had a 180 months sentence  after reduction from 300 for crack and firearm, had served 90%, , was confined at FPC Yankton, an open cam, suffered from obesity and diabetes, and had a low risk of recidivism and minimum security status.

            In United States v. Pierce, 2020 WL 7406794, at *1 (D. Nev. Dec. 14, 2020)

Petitioner had 121-months imprisonment for child pornography, release date in 2023, confined at FCI Lompoc, had Type 2 diabetes, hypertension, hyperlipidemia, hyperthyroidism, and chronic kidney disease.

            In US v. McSwain, Appeal of  05-cr-50082, 19-1250, (7th Cir. 2021),

  defendant-appellant Montrell McSwain was sentenced for a two-count conviction: Count 1, for conspiring to distribute and to possess with intent to distribute more than one kilogram of heroin and more than fifty grams of cocaine base, in violation of 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(A)(i), (b)(1)(A)(iii), and Count 19, for possession of a firearm in furtherance of a drug trafficking. He received an enhanced penalty based on a 1999 Illinois felony conviction for possession with intent to deliver cocaine. As a result, McSwain faced an enhanced minimum sentence of twenty years for the conspiracy count. A few years after McSwain’s sentencing, Congress passed the Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372, which prospectively reduced the amount and kind of punishment for crack cocaine convictions. Having been sentenced well before the Fair Sentencing Act’s enactment date, McSwain was not eligible for reduced sentencing under the Fair Sentencing Act at that time. Despite his initial ineligibility, more than a decade after McSwain’s sentencing, the First Step Act of 2018, Pub. L. No. 115–391, 132 Stat. 5194, created an avenue for those sentenced before August 3, 2010, to seek retroactive application of the Fair Sentencing Act. Section 404(b) of the First Step Act authorizes—but does not require—district courts to reduce the punishment for crack cocaine offenses that occurred prior to August 3, 2010, using the Fair Sentencing Act’s shorter sentences. Section 404(c) carves out as ineligible for reduction those whose sentences were imposed or reduced in accordance with amendments to sections 2 and 3 of the Fair Sentencing Act, or whose previous § 404 motions were denied after a complete review on the merits.

            McSwain filed a motion for relief on September 23, 2019, under the First Step Act. His motion was denied on August 25, 2020. McSwain now challenges the district court’s ambiguous denial of his motion for relief under the First Step Act, which reasoned he was “not legally eligible for relief … because he was specifically found guilty of a quantity of heroin that qualified him for a mandatory minimum sentence.” Two  issues were raised on appeal: first, whether a defendant whose original conviction was for a multi-drug conspiracy that included cocaine base and another substance is eligible for resentencing under § 404 of the First Step Act, and second, whether the district court here abused its discretion in denying McSwain’s motion for relief under the First Step Act. Accepting the parties’ newly unified position that McSwain’s multi-drug conspiracy is eligible for First Step Act, the court granted relief.

Be not afraid, and let not your heart be troubled.   Derek Gilna, Director, JD, (De Paul Law School , 1975), MARJ, (Vermont Law School, 2020), Federal Legal Center, 113 McHenry Rd. #173, Buffalo Grove, IL   60089 (and Indiana); dgilna1948@yahoo.com (English newsletter and ALL inquiries, English or Spanish); (Alternate email: dagilna1948@yahoo.com, OR firststeprelief@yahoo.com). federallc_esp@yahoo.com, Spanish newsletter, but NO inquiries. Blog:  "Derek Gilna's Federal Criminal Justice Musings and Reflections.