Shular Case Argued Before Supreme Court; BOP Program Statement Updates

Supreme Hears Shular Arguments;  Program Statement Updates, Clarifications

by Derek Gilna

            On a day where we take a step back and  honor we honor the great American civil rights icon, Martin Luther King, Jr.,  the struggle against injustice continues, one person and one case at a time.

            In the U.S. Supreme Court, (SCOTUS), Shular v. US, according to "SCOTUS Blog,  a case about the reach of the now infamous categorical approach to the Armed Career Criminal Act. ACCA imposes higher sentences on repeat offenders who are convicted of gun-related crimes. Under the categorical approach, courts look to the elements of the crime rather than a defendant’s actual conduct to decide whether the prior conviction triggers ACCA’s higher sentences"

            Shular’s case concerns the meaning of an ACCA provision that defines “serious drug offense.” In Section 924(e)(2)(A)(ii), Congress defined a “serious drug offense” to include an “offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance … for which a maximum term of imprisonment of ten years or more is prescribed by law.” After the Justices hear argument and review the pleadings, an opinion would be issued, which we fully expect to be positive for federal prisoners.

            We have received many inquiries about DOJ rules being issued to carry out the legislative mandates of the First Step Act (FSA). Generally, administrative agencies are permitted to issue rules where enacted laws might be short on details to clarify (but not change) the clear intent of Congress. DOJ does not appear to have done a very good job on this, especially where it relates to whether or not 841 offenses bar you from receiving FSA sentence credits.   Here is what FSA actually says:

            ‘‘(lxvii) Subparagraph (A)(viii) or (B)(viii) of section 401(b)(1) of the Controlled Substances Act (21 U.S.C. 841(b)(1)) or paragraph (1)(H) or (2)(H) of section 1010(b) the Controlled Substances Import and Export Act (21 U.S.C. 960(b)), relating to manufacturing, distributing, dispensing, or possessing with intent to manufacture, distribute, or dispense, or knowingly importing or exporting, a mixture of substance containing a detectable amount of methamphetamine, its salts, isomers, or salts of its isomers, IF the sentencing court finds that the offender was an ORGANIZER, LEADER, MANAGER, OR SUPERVISOR of others in the offense, as determined under the guidelines promulgated by the United States Sentencing Commission (emphasis added)."

            Unfortunately, in doing their risk assessments, DOJ at least some institutions has left out the last part in doing their assessment. Needless to say, the law, not DOJ rules, prevail in any court action. We welcome your inquiries on whether your particular offense excuses you from relief.  

            With the new "Over 60," "Compassionate Release," and so-called "Second Look,"  DOJ has adopted rules which essentially track the FSA text, but has added additional conditions to limit the statutory relief, which we feel should and will be challenged in court.  Have a good week, and let not your heart be troubled.