Wooden Decision Shows Criminal Justice Reform Now Carries a
"Conservative" Face; DOJ stalls FSA Sentence Credits, but Will No Longer Assert Plea Waivers in
Compassionate Release Filings; Feds and DOJ Want Us to Forget About COVID
Hypocrisy, but That's Won't Happen; Assault on Delayed Sentence Credits and
PATTERN set to begin;
by Derek Gilna
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As Biden drops the ball on criminal justice reform by letting the DOJ bureaucracy run the show, conservative justices on the US Supreme Court issued a unanimous landmark decision in Wooden that struck a blow against ACCA, and even more importantly showed that the court will reward common sense arguments on obvious criminal justice injustices. Wooden was convicted as a felon in possession of a firearm, 18 U.S.C. 922(g). The Armed Career Criminal Act (ACCA) mandates a 15-year minimum penalty for section 922(g) offenders with at least three prior convictions for specified felonies “committed on occasions different from one another.” Wooden had 10 burglary convictions arising from a single episode in 1997, during which Wooden unlawfully entered a one-building storage facility and stole items from 10 different storage units. The application of ACCA’s penalty enhancement to Wooden’s 922(g) sentence resulted in a sentence of almost 16 years. The Sixth Circuit affirmed. The Supreme Court reversed. These 10 burglary offenses did not occur on different “occasions” and count as only one prior conviction under ACCA. An ordinary person using language in its normal way would describe the entries into the storage units as happening on a single occasion. An occasion may encompass multiple, temporally distinct activities. The government’s contrary view could make someone a career offender in the space of a minute. Whether criminal activities occurred on one occasion or different occasions may depend on several circumstances, including timing, location, and the character and relationship of the offenses. Congress’s amendment of ACCA to add the single occasion requirement was based on its belief that a person who robbed a restaurant and did nothing else, is not a career offender. The burglary of a single storage facility does not suggest the “special danger” posed by an “armed career criminal.” This caseis important not just for future ACCA cases, but in the reasoning certain justices used in their separate, but concurring opinions. Justice Kavanaugh showed interest in mens rea, which bodes well for the pending cases involving doctors federally prosecuted for over-prescribing opiods turns on mens rea matters. Justice Gorsuch revealed himself as a liberty lover: "any, reasonable doubt about the application of a penal law must be resolved in favor of liberty...But where uncertainty exists, the law gives way to liberty...If the law inflicting punishment does not speak 'plainly' to the defendant’s conduct, liberty must prevail." Needless to say, you are doing your self a disservice if you not yet considering using cases like Wooden, and others, under the First Step Act, to attack various aspects of your long sentence, including not just ACCA but Career Offender cases, and every case where co-defendants or others similarly situated received radically lower sentences than you. I am happy to assist you in these endeavors. Another area of concern is expediting the posting of FSA credits, especially since getting those credits in a timely fashion will put thousands of people over the 50% threshold for CARES consideration. There is NO FSA provision that gives DOJ the right to deny these sentence credits to qualified RDAP graduates, or any other qualified prisoner, and all credits were due to be posted in January. To commence your action for relief, you must send an email to the warden asking for the sentence credits. If that request is rejected (or ignored), you should start the administrative remedy process as a backup, although I do not believe that since this is a statutory violation of First Step, that you need to exhaust remedies to proceed. Remember, though that CARES rejections are not judicially reviewable. However, DOJ will no longer enforce plea waivers contained in plea agreements against individuals seeking compassionate release, after most advocates and many Senators termed that practice "unconscionable." If any of
you saw the State of the Union address in Washington recently, you proably
marveled at all of the unmasked faces, after DC authorities conveniently
ended the mask mandate, apparently for political purposes, since in the
outside world, OMICRON cases peaked about a month ago, and hospitalizations
and deaths have plummeted. However, in prison people are still falling ill,
and being treated with DOJ's favorite all-purpose cure: confinement in the Although cases have dropped, does anyone doubt that another wave of a new variant is not on the horizon? DOJ had no contingency plans for the last three waves, except denial, disorganization, and deflection, and is unlikely to plan any better for the next prison pandemic. Pfizer’s antiviral drug Paxlovid seems tailor-made for combating Covid-19 in prisons: It doesn’t require an intravenous infusion like other treatments. There are signs it could significantly reduce people’s ability to spread the virus. And it significantly cuts people’s chances of getting seriously ill or dying from Covid-19. But the drug isn’t being made available to the vast majority of federal prisoners, according to review of available data. The federal prison system has received just 160 doses of Pfizer's drug Paxlovid for the entire federal prison system, which houses more than 150,000 people. www.parsintl.com. The other issue is the wake of destruction left in the federal prison by its deliberately indifferent policies, which continue to this day, and will continue until Congress finishes its ongoing investigation of specific policies and prisons that resulted in hundreds of unnecessary deaths. The departed will NOT be forgotten. Advocates and defense attorneys have noticed a considerable uptick of federal prison censorship, not only on CORRLINKS, but also on legal mail or legal publications and materials. A lot of this is, of course, federal tail-chasing, since there is an unlimited supply of new email addressed available. Publications, like Prison Legal News (PLN) for which I have been honored to write for over a decade, has also long fought censorship, and to all of you who have been unfairly blocked or censored, PLN has indicated to me that it will happily offer you a free trial subscription. If PLN is censored, in violation of the First Amendment, courts have been all too happy to award damages and attorney's fees. Of course, defense attorneys are often overmatched when they defend you, and your best recourse is to file a 2255 habeas, alleging inadequate representation of counsel, within one year after your direct appeal is completed, something else that we can assist you with. In US v Greemen, 19-41-4, (4th Cir. 2-28-22), Sitting en banc, the Fourth Circuit reviewed the prior panel opinion in United States v. Freeman, and held that, though this was a direct appeal without an intervening evidentiary hearing, the record was sufficient to establish that defendant received ineffective assistance of counsel at her sentencing hearing. Her lawyer had raised several meritorious objections to the PSR that significantly enhanced Freeman’s sentence but, inexplicably, he waived those before the hearing. The Court held that, based on the face of the record and despite the lack of an evidentiary hearing on the matter, Freeman received ineffective assistance of counsel. The Court recounted how Freeman’s attorney failed to lodge meritorious objections to the PSR and in fact waived them at sentencing over Freeman’s concerns, which did not exclude pills associated with Freeman’s personal drug use and should have been lower. Counsel had also put all of his efforts into getting Freeman in a drug court program, but the record showed he clearly did not understand the requirements for getting her in the program. The Court concluded “that counsel had no strategic reason to waive straightforward legal arguments that could result in his client receiving approximately a decade less time behind bars in favor of a nonexclusive motion for entry into a diversion program.” Regarding prejudice, the Court said, “the prejudice is manifest” since the Guidelines had been incorrectly calculated and Counsel had been “woefully” unprepared.
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