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.