EQUAL Act Move Closer to Vote; BOP Delay of Sentence Credits Imperils CARES Releases

 

BA.2 COVID Variant Accelerates in Eastern; U.S.Judge Ketanji-Brown Jackson Nears Confirmation to Supreme Court; Compassionate Release and Appellate Updates;

 

by Derek Gilna

 

            The Equal Act, which would finally abolish the disparity in crack-cocaine sentencing, moved closer to passage this past week when additional Senators, including notably Senate Majority Leader Chuck Schumer, signed on as Co-Sponsors. This effectively removed the last procedural obstacle to the bill's passage and becoming law, since floor leaders are reluctant to call a vote on a bill that lacks at least 60 votes, guaranteeing that it can overcome roadblocks thrown up by opponents of the bill. We can expect the law enforcement lobby (We're talking about YOU, Senator Cotton), to put up a fight, but it is no longer a question of IF, but WHEN the bill passes and the President signs it into law. Needless to say, we are ready to assist you in filing for the long-overdue sentencing relief.

            From Ashland, comes word of an unusually blunt official statement about when FSA sentence credits will be granted:  "We'll grant them when we get to it, regardless of what the law says." This is not noteworthy if you have many years remaining on your sentence, but could be critical if you are still trying to qualify for CARES consideration.

I feel that if you wish to fight for a prompt award of these credits that filing a memo to the warden (or the HW house administrator if you are on home confinement) requesting the application of these credits is sufficient. Congress in FSA already sidestepped the DOJ remedy process in permitting prisoners to get into court. (However, if you are well below 50%, there is not harm in filing remedies.)  

            Unfortunately for DOJ, courts frown upon administrative agencies not following the clear language of a law like FSA, especially one where the change clearly goes against Congressional intent, and the agency has not followed proper procedure to codify its  application of the law. The trend will  accelerate after the conservative Supreme  Court majority rules on cases currently before it which concern this same issue of agency overreach.

            Given that the criteria for CARES releasees appears to be highly subjective, how do you improve your chances of being selected? Thus far, there has been a clear (if unstated) connection between those who file compassionate releases and those selected for CARES, regardless of whether the initial court petitions are granted.. Of course, the more risk factors and the older you are, the greater your chances for success, but there have been many petitions granted outright even those who have been vaccinated, have few health risk factors,  have family members who need constant care, or whose sentences were too severe based upon objective analysis.

            See:  Release of Vaccinated: United States v. Wiman, No. 315CR00017RLYCMM, 2021 WL 4307013 (S.D. Ind. Sept. 22, 2021). granted relief despite holding in US v. Broadfield, which held that district courts can find there are no extraordinary and compelling reasons based on COVID-19 if there was vaccination.

Cited progression of Parkinson’s Disease and Dementia, Court found that Mr. Wiman “suffers from debilitating medical conditions that have reduced his ability to function in the correctional setting and have made his 6 years in prison more grueling than they would otherwise have been.”

            Family Circumstances: United States v. Sprouse, 2021 WL 3709936, at *2 (N.D. Ohio Aug. 20, 2021)."Defendant Benjamin Sprouse with the assistance of his counsel shall arrange to attend his son’s state court hearing through video conference on September 2, 2021. If Sprouse provides the Court with proof from the state court indicating that he is likely to get primary custody of his son, then such proof will be enough to demonstrate extraordinary and compelling reasons warranting release, provided that he could demonstrate that he has a release plan including a place to live for him and his son, means for income, and support."

            Excessive Sentence: United States v. Chandler, 5:99-cr-40044-HLT (D. Kan. Aug.  27, 2021), was based on sentencing changes that removed the additional criminal history point based on recency of criminal history, also 404 section, changed Guidelines section, and the lengthy amount of time served, and rehabilitation.

            On the COVID front, at least 40 countries have detected the BA.2 variant, including the U.K., Denmark, India, Sweden, Singapore and the Philippines. Research has suggested BA.2 is similar to an earlier Omicron version when it comes to the risk of hospitalizations and developing severe disease. But research also indicates BA.2 spreads more easily. William Hanage, associate professor of epidemiology at the Harvard T.H. Chan School of Public Health, said, “It’s going to come here, it’s going to do stuff.”  https://wallstreetjournal-ny-app.newsmemory.com/?publink=0706325bb_13483c9.

          As with OMICRON, the effects will be much more severe in the prison environment, as noted by the CDC on numerous occasions, among both vaccinated and unvaccinated, regardless of whether you have received a booster. More studies are being published speaking to serious health issues for those who contracted COVID. “We’re finding out more and more that it’s not only respiratory problems or brain fog or only fatigue,” says Ziyad Al-Aly, chief of research and development at the VA St. Louis Health Care System and a clinical epidemiologist at Washington University in St. Louis, who led the study. “There are heart manifestations, and clearly diabetes and kidney manifestations. ”People who recovered from Covid-19 within the past year are 40% likelier to receive a new diagnosis of diabetes than those who weren’t infected, a study found. https://www.wsj.com/articles/new-research-shows-higher-risk-of-developing-diabetes-after-covid-19-infection-11647906138?mod=djem10point.

            A small batch of documents released by the U.S. Food and Drug Administration in mid-November 2021 revealed that in the first three months of the COVID jab rollout, Pfizer received 42,086 adverse event reports that included 1,223 deaths

The first really large tranche of Pfizer documents — some 10,000 pages — was released by the FDA March 1, 2022. Included are nine pages of recorded side effects, about 158,000 different health problems in all.https://www.theepochtimes.com/newly-released-pfizer-documents-reveal-covid-jab-dangers_4355020.html.

    One of the unexpected byproducts of former public defender Judge Brown's Supreme Court confirmation hearings has been a renewed discussion of SO sentencing practices, and the fact that judges are beginning to understand that the sentencing guidelines are too high, and manifestly unjust. Perhaps the public will start to appreciate that it is not just SO guidelines that are unjust, and often, just illogical. It appears that she will be confirmed, and we wish her well.

In the circuits, in US v. Garner, 21-30260, (5th Cir. 3-21-22), the Fifth Circuit vacated defendant's sentence for one count of possession of a firearm by a felon, holding that defendant's prior conviction for aggravated assault with a firearm under Louisiana state law, La. R.S. 14:37.4, is not categorically a crime of violence as defined in the Sentencing Guidelines. The court examined an amendment to La. R.S. 14:37.4 and reviewed Louisiana state court's application of the amended statute, concluding that it is clear that aggravated assault with a firearm can still be committed negligently in Louisiana. Accordingly, the court remanded for resentencing.         In US v McIntosh, 20-5089, (10th Cir. 3-21-22)), Defendant-Appellant John Michael McIntosh pled guilty to five counts of robbery, plus three counts of brandishing a pistol during those five robberies. During the change-in-plea hearing held by the district court, however, McIntosh repeatedly expressed doubts about whether he should plead guilty and suggested that his mental capacity was impaired. After off-the-record discussions with the government, he finally went forward with the plea and the district court completed its plea colloquy. But two months after entering the plea, McIntosh moved to withdraw it, contending that the plea was neither knowing nor voluntary and therefore violated his constitutional due process rights. The district court denied the motion and accepted the plea agreement at sentencing. McIntosh appealed, arguing that the plea was constitutionally invalid, and in the alternative, that the denial of his motion to withdraw the plea was an abuse of discretion. After review, the Tenth Circuit found that the district court failed to ensure the plea was knowingly and voluntarily made, so it vacated McIntosh’s convictions and remanded for further proceedings.   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, firststeprelief@yahoo.com). federallc_esp@yahoo.com, Spanish newsletter, but NO inquiries. Blog:  "Derek Gilna's Federal Criminal Justice Musings and Reflections."