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Fortunately,
a promising coalition of US Supreme Court justices is telling prosecutors
that they have had enough with federal prosecutors' expansive
interpretations of statutes, in the case of United
States v Van Buren, 19-783, January 3, 2021. The 6-3 vote crossed ideological
lines. Justice Amy Coney Barrett, for the majority, wrote that the
Computer Fraud and Abuse Act could not be interpreted in a broad way to
support the conviction of a police officer who accepted money from an FBI
informant to search through a license-plate database. The court’s three
liberals sided with three of its conservatives. The other three
conservatives dissented.
There
are no new developments on any of the Biden legislative initiatives
currently sitting in Congressional Committees, as the Democrats wrestle
with challenges passing their infrastructure and voting rights agenda,
putting more pressure on advocates of clemency reform, which has assumed
new importance.
Various investigations, both internal and external, are quietly
looking into the systemic failure of the federal prison medical system in
dealing with the outbreak, management, and aftermath of COVID-19. A March 2021 TRULINCS Survey by DOJ
asked prisoners to rate that system. My guess is that upwards of 90%
rated it "poor." Now what will DOJ (and Congress) do with that
data? District court judges are now well aware of DOJ's medical system failures,
and are still granting judicial relief, including the granting of 2241's,
but only after your exhaust administrative remedies questioning
institutional application of time-credits, and failures to offer timely medical
care.
Another area of investigation should be the inability of DOJ
prison officials to stem the unconscionable introduction of both real and
synthetic stimulants into its women's facilities, which is a threat to
the health of all medically-compromised individuals in those
facilities. Why are authorities,
who are well-aware of the problem, not taking action? This should be
cited in any internal or external filings for relief, especially if DOJ
claims that its "Action Plans" have reduced health threats to
prisoners from COVID.
Untreated post COVID complications have led to an epidemic of
misery, with one Lompoc
prisoner with high blood pressure, stage 2 kidney disease, and obesity
complaining of nerve pain and tingling in both feet and both hands, now being
designated for transfer rather than treatment. New CR petitions must
emphasize the inability (and unwillingness) of DOJ to treat these
lingering conditions.
There
have been many favorable decisions in the circuits. In United
States v. Abdulaziz, No. 19-2030 (1st
Cir. June 2, 2021), the First Circuit vacated judgment imposing a
five-year prison sentence upon Defendant for committing a federal
firearms offense, holding that the district court erred in resolving what
constitutes a "controlled substance" within the meaning of
section 2K2.1(a)(2) of the United States Sentencing Guidelines," subsequent
to sustaining at least two felony convictions of either a crime of
violence or a controlled substance offense." The First Circuit
vacated the judgment below, holding that Defendant's Massachusetts
conviction was not a conviction of a "controlled substance
offense" within the meaning of that term as it was used in the
version of section 2K2.1(a)(2) that was applicable at Defendant's
sentencing.
In United States v. Jarvis, 20-3912, (6th Cir. June 3, 2021), In 1994, Jarvis
was convicted of four counts of armed bank robbery, conspiracy, and five
counts of using a firearm in furtherance of a crime of violence, 18 U.S.C.
2113, 371, 924(c). The court determined that his first 924(c) firearm
conviction generated a statutory minimum sentence of five years and that
his other four 924(c) convictions, repeat offenses, were each subject to
a statutory minimum of 20 consecutive years and sentenced Jarvis to 85
years plus 11 years on his other convictions. In 2014, the Supreme Court
clarified that for aiding-and-abetting liability under 924(c) a defendant
must have “advance knowledge” that a firearm would be used. Jarvis successfully
moved to have three 924(c) convictions vacated for insufficient evidence
of advance knowledge. The district court resentenced Jarvis to five years
for his first 924(c) conviction, 20 for his second, and 15 for his other
convictions. The 2018 First Step Act amended 924(c), limiting the firearm
convictions that count as repeat offenses.
Also
decided in the 6th Circuit was the white-collar case of US
v Hack, 19-6278, (6th
Cir. June 3, 2021). Hack pleaded guilty to conspiracy to
commit bank fraud, mortgage fraud, and wire fraud. The plea agreement
contained an appeal waiver. In addition to terms of imprisonment and
supervised release, the court ordered Hack to pay $803,420 in restitution
to two mortgage companies, as required by the Mandatory Victims
Restitution Act (MVRA), 18 U.S.C. 3664(f)(1)(A). The court set a payment
schedule during Hack’s imprisonment and stated: Upon commencement of the
term of supervised release, the probation officer shall review your
financial circumstances and recommend a payment schedule on any
outstanding balance. During his period of supervised release, Hack moved
to modify the restitution order, citing “a one-time opportunity” to
obtain financing and proposing to pay the mortgage companies $100,000 and
$28,000 in lump sums, attaching declarations from the companies stating
that they preferred lump-sum payments over incremental payments. The
district court denied the motion, concluding that it did “not have the
authority under the MVRA to modify its final Restitution Order into two
reduced lump-sum restitution payments.” The Sixth Circuit affirmed,
concluding that Hack’s plea agreement barred the appeal.
From
Senator John Kennedy: "You can only be young once, but you can be
immature forever." Be not afraid, and let not your heart be
troubled.
Federal
Legal Center, Derek A Gilna, JD, MARJ, Director,
113 Mc Henry Rd. #173,
Buffalo Grove, Ill 60089
(and Indiana)
dgilna1948@yahoo.com
(English newsletters and all inquiries, including Spanish),
federallc_esp@yahoo.com (Spanish newsletter only);
Blog: "Derek Gilna's Criminal Justice Musings and Reflections"
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