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