First Step Update and Prospects of New Year's Reforms

One Year After Passage of First Step,  New Year Holds Prospect of Additional Relief

by Derek Gilna

Although inter-party Washington battles get the headlines, steady progress is being made toward additional sentence relief. With Congress and the President facing an election in eleven months, the pressure is on for more "big-ticket" legislative accomplishments for incumbents to convince voters that they should remain in office.
       Two groups NOT looking forward to the New Year are the bloated and inefficient law enforcement and federal prison bureaucracies, which have both feasted for decades, but are now facing unprecedented scrutiny and budget cutbacks.
For decades lobbyists pushing mass-incarceration  agenda ruled the halls of Congress and the White House, but no more.   They are outnumbered and overawed by dozens, if not hundreds of influential advocates and non-profits whose opinions are now sought out by both Congress and the White House, and if they have their way, will soon convert correctional facilities into institutions of real education and training, pushing aside the "lock-em-up" old guard.
Passage of First Step Act was the huge game-changer.    Just a few numbers to prove that: Fair Sentencing / Retroactive Sentence Reductions: 2,443 Orders Granted; Elderly Offender Home Confinement: 380 Approved; Compassionate Releases / Reduction in Sentences: 117 Approved; Ready to Work Initiative: 20 Contacts to BOP have been made; Volunteer Participation: +1,700 Increase in volunteers since December 2018.Thousands more cases are in the pipeline.
What form will, if you will, "Next Step" take? If Senators like Lindsay Graham have their way, implementation of FSA will eventually be removed from DOJ control: the evidence is that bureaucrats are already doing their best to delay FSA implementation. It has been suggested that a new Parole Commission, independent of DOJ, handle the process. Meanwhile, judges are holding he government to account for FSA opposition.
In US V Manzano, 18-3430, (2d Cir. 12-18-19), the court held in a SO case that the district court's instruction to the jury that they could render a verdict NOT in accordance with the law was improper, but that the government does not possess a clear and indisputable right to have excluded any evidence of sentencing consequences. The case is highly significant for several reason, but mostly for the fact that judges are clearly more aware of the Sixth Amendment rights of people-and juries-having authority to know the consequences of their decision. (See:   US v Haymond.)
In US v. Hall, 07-3036  (DC Cir. 12-12-19), the court threw out a money laundering conspiracy charge, in a mortgage fraud case, where the conduct was already encompassed by the bank fraud charge, and remanded for resentencing.
Best wishes of the season to all, and remember, 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.com

What Happened In Washington This Week Makes Justice Reform More Likely

by Derek Gilna

            The Supreme Court (SC) made no news in the past week of interest to prisoners, but developments in Congress and the DOJ certainly did. Whatever your political affiliation, the news regarding the abuses in the FISA court process, the Inspector General's report of multiple DOJ violations of Brady standards, and the former nation's disgraced top cop going on national television to claim he wasn't responsible, have exposed to the general public the abuses and lack of accountability inherent in the federal justice system. It also totally discredited the "keep the public safe" excuse for inaction.  "Rehabilitation," rather than "confinement," is now the public's priority.

            Congress, of course, is aware of the many abuses throughout the justice system's bureaucracy assaults, harassment, graft, and financial mismanagement.  The language of the First Step Act (FSA), highlighted the fact that the federal prison system can't be trusted to protect its weakest and most vulnerable, treat its sickest, release its oldest, or show mercy to its terminally ill. Count on "Second Step" and other reforms, including even parole,  being front-and-center  after the holiday break.

            In  a case related to the above subject matter, US v. Cano, out of the 9th Circuit, highlights the problem of pervasive police and prosecutorial misconduct. In that case, the appellate court reversed the district court's dismissal of a conviction for a warrantless search of defendant's cell phone at the border on 4th Amendment grounds, despite the SC ruling in Riley v. California, which held the opposite. 17-50151, 8-16-19. The case shows the extent to which the government is willing to go to bypass the 4th amendment if left unchallenged by competent defense counsel.

            In the 11th Circuit, the court recognized that mental disabilities ignored by defense counsel prior to sentencing required that the matter be remanded for a new trial for inadequate representation of counsel.   Jefferson v. Warden, 17-12160, 10-17-19. We have previously here referred to numerous studies that mental health or PTSD issues can and must be put forward by defense counsel in sentencing proceedings, lest they be found to have rendered inadequate representation of counsel. "Neuroscience, PTSD, and Sentencing Mitigation," Grey, Prof of Law, AZ State University.

            In the 6th Circuit, White v Warden, 18-3277, 10-8-19, held that procedural default would not prevent a court's denial of a writ of habeas corpus and a remand for an evidentiary hearing, to examine the issue of a conflict of interest by defense counsel. US v. Arrington, (2d Cir. 10-18-19), reached this same conclusion. An 8th Circuit First Step case overruled a denial of relief by the district court and ruled that defendant had already received a reduced sentence in 2016, and ordered a 404 rehearing. US v McDonald, 19-1221, 12-11-19.

            

First Step Act Can Maximize Community Corrections Time.

Does the First Step Act Permit Maximization of Community Corrections?; Case Updates

by Derek Gilna

            Many questions have arisen about whether the First Step Act (FSA) provides for maximization of community corrections, including halfway house.   This concept was around long before the passage of FSA in 2018.  It has long been a staple of good representation that defense counsel should advocate  for the maximum period of community corrections,  a requirement under Section 3621(b).

            It is well known that the federal prison system has violated Congress' directive to

maximize halfway house time, and has relied upon informal internal directives to cap placements at six months, and has consistently misled prisoners and the general public regarding this fact. Its use of those informal directives is in direct violation of the Administrative Procedure Act, which requires notice-and-comment procedures to be followed.   It is our opinion that FSA now gives the sentencing courts jurisdiction to attack these provisions (and others) with a well-drafted pleading.

            The US Supreme Court will hear arguments in Banister v. Davis, 18-6943,  whether and under what circumstances a timely Rule 59(e) motion should be re-characterized as a second or successive habeas petition under Gonzalez v. Crosby. Rule 59(e) motions have been used to sidestep statute of limitations issues in post-conviction motions.

            We revisit an important case in the 9th Circuit, Washington v. Ryan, (9th Cir. 4-17-19), a 2255 habeas case reversed and remanded for defense counsel's failing to investigate and present mitigating evidence at the penalty phase: " In the penalty phase, the focus shifts from guilt to culpability, and evidence on both aggravating and mitigating factors is properly considered." In Washington, counsel failed to offer clearly available evidence of mental illness, prejudicing his client.

            We also revisit the case of US v Hassan Ali, 15-4433, a 4th Cir. Hobbs Act robbery appeal, that has been again held in abeyance. The case has now been pending four years, an unusual circumstance.

            In US v Perez, 17-14136, (11th Cir. 11-26-19) the court vacated a conviction where the facts did not justify a 18 USC 2113(a) prosecution based upon a reasonable fear of death enhancement, where the facts showed that without possessing or threatening the use of weapons, he entered two banks, and using words like "please" and "thank you" "bargained pleasantly with one teller for $5000 and allowed another teller to leave he teller's post and report the robbery while it was ongoing."

Second Step Act Considered to Build Upon First Step Reforms

What is the Likelihood of a "Second Step Act?" How Presidential Politics Will Make It Happen. 

by Derek Gilna

            Criminal Justice reform is the one reliably bipartisan issue in a politically divided country. The President receipt of the Bipartisan Justice Award from predominantly African American Benedict College in the past week, based upon his support of First Step Act (FSA), effectively one-upped Democratic primary candidates who have been touting their own criminal justice plans. He also symbolically signaled his opposition to the DOJ's bureaucratic slow-walking of the FSA reforms that have handed to almost all federal prisoners a path to sentence reduction.

            In his acceptance speech, the President challenged the Democratic Party's decades of control over their core constituency of minority voters, and forced its field of candidates (which contains three former aggressive prosecutors), to embrace more radical reform. However, he was also called to do more to bring DOJ into FSA compliance.

            In the U.S. Supreme Court, three cases of interest await action, including Eady v US, Caldwell v US, and Paul v US. In Eady, the court is asked to review the "knowingly" provision of 922(a)(2) cases to see if it applies to both possession and status elements of a 922(g) crime. In Caldwell and Paul, the court is considering whether a SO registration and Notification Act delegation to the AG violates the constitutional nondelegation doctrine.

            More courts continue to grant compassionate release.    After the case of Brittner v US, 16cr15 (Dist. of MT, 2-18-19) granted relief based upon an "extraordinary and compelling" medical reasons, more recently, in US v Walker, 11-cr270 (ND OH, 10-17-19, the court granted relief based upon extraordinary rehabilitation while in prison. In US v Cantu, 5cr458, (SD-TX, 6-17-19), the court placed Cantu in home confinement based upon  "extraordinary and compelling reasons (that) warrant a reduction of...sentence."

            In a 9th CIrcuit case that has implications for FSA petitions where drug quantity is an issue, the court ruled that the drug quantity in the PSR adopted by the sentencing court is NOT binding in 3582(c)(2) sentence reduction proceedings, and did not disqualify petitioner from FSA relief.  US v. Rodriguez, 9221 F.3d 1149 (9th Cir. 2019).

            The 9th also found in case involving the illegal distribution of various controlled substances the  assessment of the drug quantity incorrectly increased a sentencing factor, and that when that "has an extremely disproportionate effect on the sentence relative to the offense of conviction, the government may have to prove the factor by clear and convincing evidence." US v. Ridgill, 18-50128, (10-23-19), quoting US v. Felix, 561 F.3d 1036,`045 (9th Cir. 2009) and US v. Mezas de Jesus, 217 F. 3d 638 (9th Cir. 2000).

            The government might also be facing some challenges in its methodology in determining base offense level in meth cases, based upon the Alaska case of US v. Rodriguez, 17cr31, 4-5-19, where the district court said that it "will routinely grant downward variances...to correct this disparity." 

Yet Another Compassionate Release Granted by District Court

Supreme Court Accepts Yet Another ACCA Case; District Court Grants FSA Compassionate Release

by Derek Gilna

            The federal district court in Nebraska ruled in US v. Urkevich, 3-cr-37, 2019 WL 6037391 (D. Neb. 11-14-19), that it had the power to reduce sentences under 18 USC 3582(c)(1)(A) under the First Step Act (FSA).It stated:  "A reduction in his sentence is warranted by extraordinary and compelling reason, specifically the injustice of facing a term of incarceration forty years longer than Congress now deems warranted for the crimes committed...the Defendant has demonstrated that he poses no current danger to the safety of any other person or...the community," and reduced his sentence accordingly.

Note that Petitioner was NOT elderly OR terminally ill. Please advise if you have any questions regarding this process that will free hundreds if not thousands of federal prisoners, as judges continue to expand their power to grant relief.

            The Supreme Court has granted a writ of cert of another ACCA case, Walker v. US, 19-373, which asks whether a criminal offense that can be committed by mere recklessness can qualify as an ACCA "violent felony." We expect that SCOTUS, which clearly does not like ACCA, will use this case to further limit its use in a new class of cases, and open the door for retroactive  relief for more prisoners.

            One of the more misunderstood recent SCOTUS decisions is arguably the Rehaif case, which unfortunately was NOT made retroactive on collateral review since it involved a new rule of statutory, not constitutional law. Nonetheless, that has not prevented even the non-prisoner-friendly 11th Circuit from opening the door for it to be raised in a post-conviction filing.  In Re: Joseph Demond Wright, 19-13994-A (11th Cir. 11-7-19), the court denied a second 2255 on the above grounds, but stated that he could bring his claim "as a 2241 petition through 2255(e)'s saving clause."   This holding prompts us to state that it is now worthwhile to re-review your case if it has certain Rehaif facts, and there is a possible pathway to relief.

            The 8th Circuit also granted Rehaif relief in US v. Davies, 18-2662, (8th Cir. 11-8-19), holding that "The Supreme Court explained in Rehaif that a defendant without knowledge of his status under 922(g) 'may well lack the intent needed to make his behavior wrongful,'" and remanded for a new trial.  In US v. Balde, 17-3337, (2d. Cir. 11-13-19), the court vacated the conviction, stating that although "the indictment's failure to allege explicitly that Balde knew he was unlawfully in the US was not a jurisdiction defect," there was "plain error" in his acceptance of the guilty plea.

First Step Act Implementation Slow, but Steady

First Step Act Implementation Slow, but Steady, but Courts Ready to Help Ensure Compliance

by Derek Gilna

            The passage of the First Step Act (FSA) of 2018 was supposed to be a game-changer, and for some, that has been true.   However, despite Congress' and the President's stated intentions, the unelected criminal justice bureaucracy has done everything in its considerable power to water-down the benefits for the confined. Career prosecutors continue to file objections to compassionate release requests and sentence reduction petitions, but the courts have generally sided with Petitioners.   Public defender offices have been granted no additional funds or personnel to review cases and push your cases forwards, which means that you are generally on your own.

            Although several bills have already been introduced in the 116th Congress proposing additional reforms, the House and Senate Judiciary Committees are focused on overseeing implementation of FSA before turning to new and possibly more controversial changes. The new Prisoner Assessment Tool Targeting Estimated Risks and Needs (PATTERN) will not apparently be ready until the first of the year, and there is a lot of misinformation about who does and does not qualify. Contrary to rumors, violence in your background, unless it falls into certain discrete categories, does not automatically prevent you from receiving sentence credit from completing programming.

            Although there were no new cases heard or decided in the U.S. Supreme Court, the circuits were busy.  In the 9th, in US v. Ridgill, 19-50128, the court affirmed the controlled-substances conviction but reversed and remanded for resentencing, by finding that the district court's finding of drug quantify was contrary to the preponderance of the evidence standard, and the sentencing factor had "an extremely disproportionate effect on the sentence relative to the offense of conviction."

            In the 2d Circuit, in the case of US v Tanner, 18-3598 (consol.) 10-31-19, the conviction was affirmed, but the court again faulted the "methodology to determine the victim's actual loss," and that "the District Court erred in ordering the defendants to forfeit more than the amount of their criminal proceeds."

            In the 8th Circuit, in US v. Sterling, 18-2974, 11-1-19, the court ruled that "the government "failed to prove estimated drug quantity about base offense level 24, with information that 'has sufficient indicia of reliability to support its probably accuracy,'"

and remanded for resentencing.

            Finally, in US v Rabb, 18-1678, 10-30-19, the court reversed and remanded a fentanyl and cocaine case for resentencing, finding that his NY conviction for second-degree robbery did not qualify as a predicate for CO purposes, and invoked the SCOTUS Stokeling opinion that non-aggravated robbery did not qualify.

Department of Justice Slow in Implementation of First Step Act

DOJ "Slow Walking" Congress' Mandate to Fully Implement FSA; SCOTUS Updates

by Derek Gilna

            We applaud the news of yet another Presidential pardon, of Momulu Stewart, who was freed after two decades in prison, with the efforts of Kim Kardashian and the Georgetown Law School. The U.S. Supreme Court (SCOTUS), will consider Levert v. U.S., and Ziglar v. U.S. In Levert, the question is "whether, or under what circumstances, a criminal defendant pursuing a second or successive motion under 28 U.S.C. § 2255 is entitled to relief under a retroactive constitutional decision invalidating a federal statutory provision, when the record is silent as to whether the district court based its original judgment on that provision or another provision of the same statute."

            In Ziglar, the question is whether the court of appeals correctly affirmed the denial of Joe Ziglar’s motion to vacate his sentence based on Johnson v. United States, when the district court found that Ziglar had failed to show that he was sentenced under the residual clause of the Armed Career Criminal Act of 1984, which was invalidated in Johnson, as opposed to the ACCA’s still-valid enumerated-offenses clause."

            These cases have broad implications for pending and future petitions, although most courst considering the question thus far have ruled that if district courts were silent on the residual clause issue during sentencing, it is presumed that the void residual clause was the basis for the conviction. Given this court's hostility to overbroad construction of penal statutes, our opinion is that the government will lose in both cases.

            SCOTUS, as noted in the Gundy decision, has shown continued hostility to overbroad, punishment-increasing actions by both federal district courts, and especially by federal administrative agencies, of sentencing laws, and rules implementing clear Congressional mandates. This brings us to DOJ's hostility to the new FSA, manifesting itself in frivolous objections to sentence relief, and arbitrary and capricious denial of compassionate release (Nothing new here). Unfortunately, prisoners can expect only limited help from PDs in these matters, as their resources are stretched to the breaking point, which is why those of you with FSA relief coming have heard little from them.

            In the circuits, In U.S. v. De La Torre, 18-2009 (consol.), (7th Cir. 10-10-19), the court vacated and remanded defendants Chapman and Rush's 841 convictions, Based upon the finding that their Indiana and Illinois prior drug convictions did not qualify as predicate offenses, most notably finding "plain error." This case has important , positive implications for those of you with drug priors in both states.

            In the Eighth circuit, the holding of U.S. Hollingshead had both positive and negative implications.  He was charged with 922f1 and 924a2 offenses), and although his conviction was affirmed, the imposition of domestic violence and anger management treats as conditions of supervised release was stricken, based upon his timely objection to findings in his PSR/PSI (possible implications for your future 2255 filings). However, the court distinguished (and rejected) his Rehaif argument, since he was already a convicted felon, citing US v Benamar, 17-50308, (9th Cir. 9-5-19), under "plain error."

First Step Act Updates: How to Get Relief

How to Unlock the Benefits of the First Step Act; Supreme Court and District Updates

by Derek Gilna

            The First Step Act (FSA) of 2018 has opened the door for federal courts to play a stronger role in possible sentence relief, but only if you are able to successfully navigate the process.   The good news for FSA is that the government is often  put on the defensive and forced to present frivolous arguments in the face of clear Congressional intent to shorten sentences for those eligible and to grant relief to elderly and ill prisoners, in a widely expanded compassionate release process.

            Almost 10 months have elapsed since the passage of FSA, and the DOJ and federal prison system are still not giving out correct information to prisoners and not following its own program statements that tracks the statute. "The form is not available," or, "Your facts make your ineligible," are often the response.    Public defender offices, inundated with applications for new Crack law petitions, are in no position to assist.

            The fact is that courts on only get involved based upon the facts placed before them, and that means getting back into court.    You are already aware that 2255 habeas petitions, both "original,"   filed within one year after your direct appeal is decided, or a "second-successive," when new statutes (like FSA), new case law, or new facts not previously available or applicable arise, are valuable tools, but only if you use them correctly. The majority of courts have found FSA contains language that permits sentencing courts to consider post-conviction rehabilitation, and can order a complete resentencing.

            In the US Supreme Court, (SCOTUS),  Paul v US, 17-8830, attacks the DOJ's authority to promulgate SO regulations violates the constitutional nondelegation doctrine, and current SCOTUS hostility to the administrative state makes this a case to watch. The 7th Circuit heard arguments in the US v Atwood case in late September, which involved his career-offender designation. The same circuit's 10-10-19 decision in De La Torre, following its 2018 Elwood decision, bodes well for Mr. Atwood's success.

            As promised, we revisit the so-called "stash-house" cases, specifically the US v Mayfield decision, 11-2439, (7th Cir. 2014), which resulted in his release for "time-served."  This  followed his guilty plea to a face-saving superseding indictment, negotiated by the U of C law clinic, which also terminated his supervised release. Sadly, his success was not replicated by the majority of similar fact situations, but at least forced these types of entrapments being abandoned  by police after federal judges voiced their opposition. to the practice.

            In US v. Bishop, 17-15471, 10-11-19, the government-friendly 11th Circuit affirmed a conviction on other grounds, but remanded based upon the district court's erroneous application of a 4-leel enhancement under 2K21b6b, for possessing a firearm  in connection with another felony offense. In an interesting result, in Webb v. Davis 17-51143, (5th Cir. 10-16-18), the court also affirmed a state habeas petition based upon the appeal waiver, but ruled that a 60b CAN be available if a second-successive 2255 is not possible.

Shular Case Takes Center Stage as Supreme Court Begins New Term.

First Step Act Updates

by Derek Gilna

            The matter of Eddie Shular v United States continues to wind its way through the

US Supreme Court (SCOTUS), with amicus briefs in supports recently filed by the National Association of Criminal Defense Attorneys (NACDL) and FAMM.  Shular pleaded guilty to charges of possession of a firearm by a convicted felon and to controlled substances possession, and was classified as an armed career criminal because of six previous drug convictions in Florida. He objected to the classification in court, arguing his previous convictions were not "serious drug offenses" under the Armed Career Criminal Act (ACCA.)  After  by  11th Circuit affirmed , he filed with SCOTUS.

            NACDL's amicus group noted that the case is ripe for adjudication since the circuits do not agree on whether the categorical approach should control ACCA prosecutions of serious drug crimes: "Although this Court has repeatedly affirmed that the categorical approach applies to ACCA’s 'violent felonies' provision, it has not squarely addressed whether it applies to “serious drug offenses.” But there is no textual, policy, or other reason to treat this provision differently from other predicate offenses." A positive outcome would have major ratifications on thousands in the federal system.  No date has yet been set for argument of this case.

            Rumors continue to fly on implementation of sentence credits for programming under the First Step Act (FSA), especially since the release of the Prisoner Assessment Tool Targeting Estimated Risk and Needs (PATTERN) in July. There has been no official  release of information by the federal prison system on this subject, despite pressure from the American Bar Association, and also Congress.   The agency is responsible by law for publishing proposed regulations. When it is available we will share it with you.

            Petitions seeking the "second look" found by criminal justice experts in the FSA continue to be filed.   Given their limited resources, it is unlikely that federal defenders will involve themselves in these matters, so any action will have to be initiated by you. 

            In Congress, Congressman Ted Deutch introduced HR 4018, which provides, "that the amount of time that an elderly offender must serve before being eligible for placement in home detention is to be reduced by the amount of good time credits earned by the prisoner..." as an amendment to the 2nd Chance Act.  We would be surprised if either house takes up this bill, but it at least puts DOJ on notice that Congress is considering the issue.

            In the Fourth Circuit, in US v Cornette, 932 F.3d 204 (4th Cir. 2019), the court held that retroactive ACCA claims are not barred by a defendant's appeal waiver, and defendant's 1976 Georgia conviction is no longer a valid ACCA predicate The court swept aside the objection that the sentencing transcript did not state whether the ACCA stemmed from an elements clause of the residual clause, citing US v. Winston, 850 F.3d 667 (4th Cir. 2017).

            Permit me to share a quote from Winston Churchill: "As one's fortunes are reduced, one's spirit must expand to fill the void."  Let not your heart be troubled.

Shular Case Amicus Groups Filed in Important ACCA Case

Shular Case Takes Center Stage as Supreme Court Begins New Term;   FSA Updates

by Derek Gilna

            The matter of Eddie Shular v United States continues to wind its way through the

US Supreme Court (SCOTUS), with amicus briefs in supports recently filed by the National Association of Criminal Defense Attorneys (NACDL) and FAMM.  Shular pleaded guilty to charges of possession of a firearm by a convicted felon and to controlled substances possession, and was classified as an armed career criminal because of six previous drug convictions in Florida. He objected to the classification in court, arguing his previous convictions were not "serious drug offenses" under the Armed Career Criminal Act (ACCA.)  After  by  11th Circuit affirmed , he filed with SCOTUS.

            NACDL's amicus group noted that the case is ripe for adjudication since the circuits do not agree on whether the categorical approach should control ACCA prosecutions of serious drug crimes: "Although this Court has repeatedly affirmed that the categorical approach applies to ACCA’s 'violent felonies' provision, it has not squarely addressed whether it applies to “serious drug offenses.” But there is no textual, policy, or other reason to treat this provision differently from other predicate offenses." A positive outcome would have major ratifications on thousands in the federal system.  No date has yet been set for argument of this case.

            Rumors continue to fly on implementation of sentence credits for programming under the First Step Act (FSA), especially since the release of the Prisoner Assessment Tool Targeting Estimated Risk and Needs (PATTERN) in July. There has been no official  release of information by the federal prison system on this subject, despite pressure from the American Bar Association, and also Congress.   The agency is responsible by law for publishing proposed regulations. When it is available we will share it with you.

            Petitions seeking the "second look" found by criminal justice experts in the FSA continue to be filed.   Given their limited resources, it is unlikely that federal defenders will involve themselves in these matters, so any action will have to be initiated by you. 

            In Congress, Congressman Ted Deutch introduced HR 4018, which provides, "that the amount of time that an elderly offender must serve before being eligible for placement in home detention is to be reduced by the amount of good time credits earned by the prisoner..." as an amendment to the 2nd Chance Act.  We would be surprised if either house takes up this bill, but it at least puts DOJ on notice that Congress is considering the issue.

            In the Fourth Circuit, in US v Cornette, 932 F.3d 204 (4th Cir. 2019), the court held that retroactive ACCA claims are not barred by a defendant's appeal waiver, and defendant's 1976 Georgia conviction is no longer a valid ACCA predicate The court swept aside the objection that the sentencing transcript did not state whether the ACCA stemmed from an elements clause of the residual clause, citing US v. Winston, 850 F.3d 667 (4th Cir. 2017).

            Permit me to share a quote from Winston Churchill: "As one's fortunes are reduced, one's spirit must expand to fill the void."  

Federal Legal Center, Inc.

Derek A Gilna, J.D., Director

113 McHenry Rd., #173

Buffalo Grove, IL  60089

(Also in Indiana)

dgilna1948@yahoo.com

Impeachment Circus in Congress Distracts from Sentence Reform, as Federal Courts Fill the Vacumn

2020 Election Distracts Congress from Further Reform, But Empowers Courts to Act

by Derek Gilna

            Congress' new impeachment preoccupation indicates that it has given up on serious legislating until after the 2020 elections,. Federal judges have taken notice and are already filling the vacuum. A newer generation of judicial activists are pushing back against some sentencing injustices, newly empowered by the First Step Act. That, combined with more focused looks into the appropriateness of prior offenses by reviewing courts, means that there are multiple methods to attack sentences. The large number of sentence reductions and shrinking prisoner population figures bear this out.

            Of course, a 2255 petition alleging inadequate representation of counsel continues to be the preferred method. Don't let the opportunity to challenge your sentence pass by without at least considering this avenue for relief.

            As the Supreme Court prepares for its Fall term, let us review some its major decisions of the past term. Of course, we know that in US v Davis, 139 S. Ct 2319, (8-24-19) the court struck down the unconstitutionally vague residual clause in 18 USC Section 924(c)(3)(B), supplementing the holding of Johnson and Dimaya. In US v Haymond, 139 S. Ct. 2369 (6-26-19), the court struck down a provision of the federal supervised release statute, 18 USC Section 3583(k, finding that it was contrary to Alleyne, reaffirming that any facts increasing a mandatory minimum must be found by a jury.

            In the First Circuit, In US v Mohamed, 920 F.3d 94 (4-3-19). the court vacated and remanded a sentence for being a felon in possession, since the prior state conviction in Maine for trafficking 5.7 grams of cocaine did not qualify as a controlled substance offense for purposed of 2K2.1. In the Second Circuit, in US v. Thompson, 921 F.3d 82 (4-10-19) the court remanded a cyber stalking case where the DC misapplied a 2-level enhancement for violation of a court protection order where it was not properly served.

            In the Fourth Circuit, in US v. Smith, (9-27-19,) the reversed a conviction under 18 USC 922(G), finding that NC conditional-discharge pleas are not a conviction for purposes of Subsection 921 and 922, and he was not therefore a felon in possession.

In the Eighth Circuit, in Lofton v US, 920 F.3d 572 (4-5-19), the court reversed and remanded the denial of a 2255 petition, which asserted that 327 month ACCA sentence

could not be increased as a result of an Illinois conviction for aggravated sexual abuse based upon Johnson, since it did not include a use of force.

            The Ninth Circuit, in US v. Graves, 925 F.3d 1036 (5-30-19,) vacated and remanded a mandatory life sentence for conspiracy to distribute meth, conspiracy to distribute marijuana, and possession of meth, holding that prior state convictions for inmate drug possession in California did not qualify as predicate felony drug offenses because it was indivisible and overbroad.

            

Federal Legal Center, Inc.

Derek A. Gilna, JD, Director

113 McHenry Rd. #173,

Buffalo Grove, IL   60089

(Also in Indiana)

dgilna1948@yahoo.com.

Sentence Reform Movement Gains Momentum

Mood in Washington: Shift in Favor of Sentencing Reform Continues to Accelerate

by Derek Gilna

            After a few days in our nation's capital, I can report that criminal sentencing reform is still gathering strength.   There are virtually no elected representatives (not named Senator Tom Cotton) who are willing to be quoted as being in favor of longer sentences, and often appear in competition to be more supportive of the concept.

            The reason is quite simple: there is no longer any political danger in being labeled

"Soft on Crime." As a result, there is nothing in the budget for new guards, new prisons, or anything else that would drive an increase the prisoner counts. Expect the federal counts to drop further.

            All of the "action" (money) is now in the recidivism and rehabilitation areas, and this can only help lower prisoner counts and reduce returns to prison on technical violations. In the feds, "follow the money" to see what policy is now in favor. The new battles in Congress will be to see who gets their share of the pie in the new system. The President clearly supports criminal reform, and there is not one Democratic candidate who has not come out for even more reform, trying to "out-reform" the President.

            The new emphasis on restorative justice means that radical changes to the argument that harsh punishment is always appropriate are on the way., including a change to the pardoning process. There will be immense pressure to release older and sick prisoners, and lawsuits will further accelerate this process.

            One of the initiatives being discussed involved letting the jury known the potential sentence if they find someone guilty:www.prosecutorialaccountability.com, argues that this is an idea that would turn federal criminal justice upside down.

            In the U.S. Supreme Court case of McDonough v. Smith, the court is considering the allowing of more time for prisoners to file a claim based upon police or prosecutor fabricated evidence, as well as recognize that this is a "rampant problem. 18-485, argued 4-17-19.

            In US v. Winbush, 17-7148, (4th Cir. 4-23-19), the court reversed and remanded a denied 2255 habeas petition brought for failure to challenge an incorrect designation as a career offender (CO).    The district court erred by permitting the substitution of a previously unidentified conviction to sustain the CO designation. In US v Copeland, 17-5125, (10th Cir. 4-23-19), the court reversed an ACCA enhanced sentence, finding that defendant proved that the district court relied on the now-overturned residual clause when it initially sentenced.

Upcoming Davis Opinion in Supreme Court Will Extend "Void for Vagueness" Arguments

by Derek Gilna

            As we reported last week, the U.S. Supreme Court (SC) heard oral arguments in Davis this past Wednesday, and although an opinion will not be issued for several weeks, the Justices appear poised to strengthen the "void for vagueness" argument that could help post-conviction petitions. I listened to most of the proceedings, and it was clear that the SC was not impressed by the government's weak argument that if 924c is set aside, other statutes will also fall (which would be a good thing for those reading this newsletter,) and appears ready to issue a prisoner-friendly ruling.

            The SC also heard argument this week on the US v. Haymond SO case, which would limit judge's ability to sentence individuals found to have violated their terms of release without a jury deciding the case. Conservative justice Gorsuch said that this clearly violates the 6th Amendment right to a jury trial, and a majority of justices appeared to agree.

            This case again highlights that the most important actor in federal criminal justice system is not the judge, but the prosecutor. A federal criminal indictment brought by the prosecutor results in a guilty verdict or guilty plea over 90% of the time, and DOJ annual statistics show that in some circuits NOT ONE defendant was found not guilty after  trial.

            In the circuits, the Fourth Circuit has held that a prior conviction in the USDC for the ED of North Carolina for conspiracy to distribute and possess with intent to distribute cocaine base (did) not constitute controlled substance offenses for career offender purpose," and remanded for resentencing.  US v. Whitley, 17-4343, (4th Cir. 6-12-19).

The decision focused on the "conspiracy" aspect of the case, since no drugs were seized.

            In the 8th Circuit, the court reversed and remanded denial of a 2255 petition, finding that counsel was ineffective by misadvising him about the immigration consequence of his guilty plea. Dat v. US. 17-3652, (4-11-19). In the 9th Circuit, the court held that habeas relief must be granted, holding that "counsel performed ineffectively by not properly investigating (defendant's) background, and as a result, the trial court was not presented with substantial mitigation evidence regarding...education and incarceration, his diffuse brain damage and ... history of substance abuse." Washington v. Ryan, 05-99009, (9th Cir. 4-17-19).

            In US v. Jones, the court reversed and remanded a case where a Native American who pleaded guilty to child abuse for diving on a reservation while intoxicated with his minor son in the car in tribal court, but was re-indicted in federal court.   That court miscalculated his sentence, and must now resentence him. 18-2129, (10th Cir. 4-16-19).

            We look forward to assisting you with giving you the information to obtain sentence relief and release under the new provisions of the First Step Act, as well as keeping your outside family and friends apprised of new developments that might help your case.

Federal Legal Center, Inc.

Derek A. Gilna, JD, Director

113 McHenry Rd., #173

Buffalo Grove, IL   60089

federallc@yahoo.com