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.