CARES Recipients At Risk of Return to Federal Prison May Find that DELTA Virus Spread May Bring Sentence Relief

 

Delta-Variant of COVID-19 Has Arrived in the Federal Prison System; CARES Releases Should Continue Because of Systemic Failure In Prison Medical Care, But Those on Home Confinement Should Consider their Options

 

by Derek Gilna

 

            As the various criminal justice reform bills move slowly through Congress, the Delta Variant of COVID-19 has wasted no time, quickly arrived in multiple federal prisons over the past month, including Aliceville, Bryan, and Waseca. This is  in all likelihood, fueled in large measure by unvaccinated correctional employees, especially in the South and West.  Although DOJ will do its best to suppress the information, the general public is already aware of the threat, as masks begin to  reappear even on vaccinated individuals. This new development reality should soften the impact of the rumor that CARES releasees currently on home confinement will have to return to prison when the pandemic is "over."  The fact is that the pandemic, at least in jails and prisons, will never be "over."  

            All of these health concerns somewhat lessened the concern about rumors that CARES will be terminated and those already on home confinement will have to return, as was rumored this week, but those concerns remain. If DOJ ends CARES there are two options: either Congress can pass a law allowing these people to continue or Biden can use his presidential clemency powers to commute their sentences. Biden is now being pushed by a coalition of 20 criminal justice reform activist groups to take action. I strongly urge those on home confinement to immediate renew their compassionate release petitions to convert their CARES release to a  "time-served" outcome. 

            The current COVID-19 surge in the U.S. — fueled by the highly contagious delta variant — will steadily accelerate through the summer and fall, peaking in mid-October, with daily deaths more than triple what they are now. That's according to new projections released Wednesday from the COVID-19 Scenario Modeling Hub, a consortium of researchers working in consultation with the Centers for Disease Control and Prevention to help the agency track the course of the pandemic. npr.org;  www.coronavirusmodelinghub.org.

            "What's going on in the country with the virus is matching our most pessimistic scenarios," says Justin Lessler, an epidemiologist at the University of North Carolina who helps run the modeling hub. "We might be seeing synergistic effects of people becoming less cautious in addition to the impacts of the delta variant." In the most likely scenario, Lessler says, the U.S. reaches only 70% vaccination among eligible Americans (it's now 60%), and the delta variant is 60% more transmissible. In that scenario, at the peak in mid-October, there would be around 60,000 cases and around 850 deaths each day, Lessler says with about 240,000 people getting infected and 4,000 people dying each day at the October peak, which would be almost as bad as last winter.

            As noted by correctional health expert, Cr. Homer Venters, "As the United States faces a deadly new wave of COVID-19 infections, we must address the low rates of vaccination among the nation’s half-million correctional officers. Across the nation’s 7,000 jails, prisons and other detention settings, these low rates threaten the lives of not only these staff and their communities but also detained and incarcerated people. These low rates also reflect deeper problems relating to the lack of attention to the health of correctional officers and detained people alike by the Centers for Disease Control and Prevention (CDC) and state departments of health" www.usatoday.com, 7-15-21.

            William Hanage, an epidemiologist at the Harvard T.H. Chan School of Public Health. "How (many new cases) will track with how many people are vaccinated in a given community." "I also strongly suspect that delta is highly prone to superspreading — if I am right, it might go off like a bomb in some under-vaccinated communities," Hanage adds.

            In every report issued by the DOJ's Office of Inspector General, that office found major deficiencies in all institutions' response to COVID-19,  none of which have been corrected. https://oig.justice.gov. . This level of medical support needed to deal with the pandemic does not exist in the federal prison system. DOJ, Office of Inspector General Review of FCOP Medical Staffing Challenges, at 1, (Mar. 2016).

            There is also reason for skepticism that even those vaccine administered to prisoners were properly stored and handled (kept in special freezing units)  prior to being given to prisoners, and whether the prisoners to whom it was administered had been properly tested and examined prior to the shots being given.  It is common knowledge that most of the prisoner shots were those that had been refused by correctional employees.

            This institutional incompetence also does not bode well for those who continue to suffer from "Long Covid," which even major hospital systems have had trouble treating. Long Covid—a term referring to symptoms that linger for weeks or months beyond infection—affects between 10% and 30% of people who catch the virus, including those with mild or asymptomatic infections, according to experts. In some cases, symptoms persist for more than a year. “Even if it’s not as striking as people dying, you ignore it at your peril,” said Danny Altmann, professor of immunology at Imperial College London. “In terms of healthcare burden or healthcare cost, we’re on track for this being as big a problem to us as rheumatoid arthritis, the biggest autoimmune disease in the world.”

The majority of people with long Covid report fatigue as the dominant symptom alongside muscle aches, difficulty sleeping and shortness of breath, according to a large study by researchers at Imperial College London. Another, smaller, cluster of patients reported predominantly respiratory symptoms, including shortness of breath and chest pain or tightness. Other studies have identified cognitive issues, or “brain fog,” as another common symptom. www.wsj.com.                                 In the circuits, US v. Brown, 20-2170, (8th Cir. 7-21-21), the Eighth Circuit vacated defendant's 72 month sentence for knowingly possessing a stolen firearm and remanded for resentencing before a different district court judge. In this case, defendant and the Government stipulated to a Sentencing Guidelines base offense level of 12. However, the Government later endorsed the PSR's contrary base offense level calculation of 20. The district court adopted the PSR's calculation. The court concluded that if the government breached the plea agreement in the case, a defendant may proceed with an appeal despite an appellate waiver; defendant preserved the issue for appeal; and the government breached the plea agreement. Even assuming a cure is possible, other circuits require that the government offer an unequivocal retraction of its erroneous position to sufficiently cure a breach. The court explained that the Government's conduct is a far cry from an unequivocal retraction. In this case, the Government's half-hearted and begrudging statement that the district court should follow the agreement was not enough.              In US v Webb,  19-6491, (4th Cir. 7-19-21), the Fourth Circuit affirmed the district court's judgment reducing defendant's sentence by two years, rather than the five years that defendant requested. Defendant sought a reduction in sentence under the First Step Act. The district court acknowledged that defendant had come a long way since the imposition of his original sentence but that he must take responsibility for his actions in a way that he failed to do during his initial sentencing hearing. The court held that district courts should be afforded significant discretion in addressing requests for sentence reductions under the First Step Act. In this case, the district court fully explained its decision to reduce defendant's sentence by two years, considering defendant's arguments and the nature of his offense, his characteristics, including both his post-sentencing mitigation evidence and his criminal record, his new guidelines sentencing range, and the new statutory mandatory minimum in fashioning defendant's sentence. Therefore, the district court did not abuse its discretion in sentencing defendant.            Be not afraid, and let not your heart be troubled. Federal Legal Center, Derek A. Gilna JD (De Paul Law, 1975), and MARJ (Vermont Law, 2020), Director,   113 McHenry Rd. #173, Buffalo Grove, IL, and Indiana, dgilna1948@yahoo.com, for English-language newsletters and questions in English and Spanish, federallc_esp@yahoo.com, Spanish language newsletter only.   Blogging at "Derek Gilna's Federal Criminal Justice Blog."

As DELTA Variant Spreads, BOP Medical System Still Not Capable of Protecting and treating Prisoners

 

COVID Delta Variant Numbers Jump, First Cases Reported in Federal Prisons;  CARES Likely to Continue; Federal Marijuana Reform Legislation Proposed

 

by Derek Gilna

 

            The number of new Delta-variant coronavirus cases is increasing in every state, setting off a growing sense of concern from health officials who are warning that the pandemic in the United States is far from over, and several federal prisons are reporting cases. Unfortunately, I expect DOJ to once again undercount active cases, and it is my opinion that we are back to where we were in March of 2020. There is continued serious risk to those federal prisoners who have no access to follow-up care which is limited by the low numbers of qualified medical professionals in the short-staffed and underfunded federal prison system.

            The risk is much greater in the South, which holds the lowest number of vaccinated people. Nationwide, fewer than 50% of federal prison staff have been vaccinated, and in the South that number is even lower.  Confirmed cases have occurred in Texas, Kentucky, and West Virginia facilities, and California is considered to also be at risk.

            The U.S. is averaging more than 23,000 new cases a day, double the seven-day average of around 11,300 cases three weeks ago, according to a Wall Street Journal analysis of data from Johns Hopkins University. On 17 of the past 18 days, the seven-day case average was higher than the 14-day average, also suggesting cases have been rising nationally.

             Hot spots have emerged in recent weeks in parts of Missouri, Arkansas and Nevada, among other states, leaving hospital workers strained as they care for an influx of coronavirus patients and hospitalizations are on the rise. Intensive care beds in hospitals have become scarce in parts of Missouri, where officials in Springfield on Wednesday asked for an alternative care site. In Mississippi, where cases are up 70% over the past two weeks, health officials have urged older adults to avoid large indoor gatherings even if they have been vaccinated.  www.yahoo.com, www.nytimes.com, 7-16-21.

            “This will definitely be a surge,” said Michael Osterholm, director of the Center for Infectious Disease Research and Policy at the University of Minnesota. “It won’t be as big as what happened in January. But we still have 100 million people in the United States who are susceptible to COVID-19.” The majority view of scientific research is that "properly vaccinated" individuals might still contract the new Delta variant, but have less severe symptoms.

            "Long Covid," which affects thousands in federal prison, is still a concern. More long Covid-19 patients are pushing to investigate what they believe is fueling some of their debilitating long-term symptoms: dormant viruses that have been reactivated by the coronavirus. An estimated 10% to 30% of all Covid-19 patients suffer from symptoms weeks and months after first getting the illness, including many young, previously healthy people whose initial Covid-19 cases were mild. Symptoms can include brain fog, fatigue, shortness of breath, racing heart beat and an inability to tolerate physical or mental exertion. Yet scientists still know very little about the causes of the condition, and have even fewer treatments to offer. www.wsj.com. In other words, if you entered prison with pre-existing conditions, you are more likely to suffer from this condition. symptoms.

            In June, a study published in the medical journal Pathogens suggested a possible association between Epstein-Barr reactivations (an often undiagnosed immune disorder)  and long Covid-19. In a set of 30 long Covid-19 patients, about 67% were positive for EBV reactivation, researchers found. That compared with about 10% of the control group, who had contracted Covid-19 but didn’t experience long-term symptoms. The researchers tested for reactivation based on the levels of two antibodies they say are associated with active or reactivated EBV infection. www.mdpi.com.

            Majority Leader Chuck Schumer's new federal marijuana reform bill, the Cannabis Administration and Opportunity Act.  The full text of this highly-anticipated bill draft runs 163 pages and covers all sorts of reform and regulatory issues related of federal marijuana law and policy .   Please note that there is a dedicated section (sec. 311) devoted to "RESENTENCING AND EXPUNGEMENT." More on this soon.

In the circuits: In US v. Sarchett, 20-2517, (8th Cir., July 12, 2021, the 8th Circuit reversed defendant's sentence in a case where defendant and the government entered into a plea agreement in which he stipulated that he had sold methamphetamine to a confidential informant for thirty dollars. The court agreed with defendant that the district court miscalculated his Sentencing Guidelines range when it found him responsible for drugs to which he had no connection. The district court committed procedural error when it found a connection between defendant and the materials found in his girlfriend's home and car. The court remanded for resentencing.           In US v Arrington, 19-3086, ( DC Cir. July 13, 2021, Arrington was convicted of assaulting a federal officer with a dangerous weapon and of unlawfully possessing a firearm as a convicted felon. The judge sentenced Arrington to 240 months. His sentencing range involved a higher base offense level for the unlawful possession of a firearm because he “had at least two prior felony convictions of either a crime of violence,” U.S.S.G. 2K2.1(a)(2); he also received an enhancement as “a career offender” because he had “at least two prior felony convictions of either a crime of violence,” U.S.S.G. 4B1.1. The judge applied the “residual clause” in the Guidelines' definition of "crime of violence."         In 2003, Arrington was denied post-conviction relief under 28 U.S.C. 2255. The Supreme Court rendered the Guidelines advisory while Arrington’s first petition was pending. In 2015, the Court held (Johnson) that the Armed Career Criminal Act’s “residual clause” was unconstitutionally vague. In 2016, the Supreme Court held that “Johnson announced a substantive rule that has retroactive effect in cases on collateral review.” Within a year of Johnson, Arrington sought leave to file a successive section 2255 motion challenging his sentence in light of Johnson ,but  the district court denied his motion as untimely. The D.C. Circuit reversed. The Johnson decision recognized a person’s right not to have his sentence dictated by the unconstitutionally vague language contained in a mandatory residual clause identical to that in the Guidelines.         Fear not and let not your heart be troubled. Federal Legal Center, Derek A. Gilna JD (De Paul Law, 1975), and MARJ (Vermont Law, 2020), Director,   113 McHenry Rd. #173, Buffalo Grove, IL, and Indiana, dgilna1948@yahoo.com, for English-language newsletters and questions in English and Spanish, (dagilna1948@yahoo.com for emergency use only); federallc_esp@yahoo.com, Spanish language newsletter only.   Blogging at "Derek Gilna's Federal Criminal Justice Blog."

Compassionate Release Court FIling Seen as a Way for CARE Releasees to Avoid Possible Return to Prison

 Levi Compassionate Release Highlights Possible "Trap" for CARES Releasees;  First Step Resentencing: What Are Your Chances?; Delta Variant Risk Increases; Supreme Court Ends Term with a Whimper, but New Petitions Target Key Sentencing Abuses

 

by Derek Gilna

 

            A little-reported court decision granting Compassionate Release to 76-year old CARES-releasee Gwen Levi is the most recent high-profile case that highlights the continuing risk for CARES prisoners that they will be forced to return to prison. Levi was one of 24,000 federal prisoners released under CARES, who were put at risk of re-arrest under a Department of Justice (DOJ) Department memo issued in the final days of the last administration that said inmates whose sentences extend beyond the pandemic must be brought back to prison. Levi was arrested for not answering US Probation's phone calls while she was in a computer class. The judge granted her motion for Compassionate Release and gave her time-served, and left her five-year supervised release intact. US v. Levy, 8:04-cr-00235, (D. of Md., 7-6-21).

            One of the possible byproducts of filing a petition for Compassionate Release-even if it is denied by the warden-is that it highlights to DOJ the extent of your chronic physical issues and definitely increases your chances for a CARES release. The downside for CARES releasees by Ms Levi is that Probation is always "in your business," making it imperative that you file a CR to reduce or eliminate that risk of re-arrest.

             The First Step Act (FSA) has clearly increased the chances for a sentence reduction under Section 404, giving your district court judge the power to resentence, but does not compel him/her to do so.   There are a whole list of factors for the judge to  consider, and you must overcome the automatic DOJ response that you are still a "threat to the community."  However, unlike second-successive 2255's, the bar for approval has been lowered, but it will require a well-drafted motion.

            Josh Manson, a researcher at the UCLA Law COVID Behind Bars Data Project, says that there have been few efforts to curb the Delta variant and COVID-19 overall, making prisons deadly places for transmission. “When the pandemic first hit in March 2020, prisons were not taking the situation seriously,” Manson says. “We know that it’s even more transmissible than it was the first time a year and a half ago. We’ve seen thousands of people die in jails and prisons.” According to Manson, the current death count is an underestimate. “There’s evidence emerging that the counts that have been recorded are actually undercounted,” Manson explains. “So we don’t even know the true totals of how many people died.” www.verywellhealth.com, 7-9-21.

            The reports of increased clemencies refuse to go away, as administration officials, bogged down in Congress by , weigh the positive benefits of bold action to shore up the public perception that Biden has accomplished little of what he promised in the first six months of office. Now is the time to seriously consider this option.   Those with Compassionate Release petitions pending are still eligible for pardons or commutations.

            Although recent Supreme Court decision did little to assist current prisoners in the last term, the new petitions in Osby and Bryant look promising. According to the federal Sentencing Guidelines, a judge may adjust the recommended range of an offense based on a defendant’s “relevant conduct.” and can include acquitted conduct.        

            In Osby v. United States, Erick Osby was indicted on seven charges; the jury convicted him of two and acquitted him of the other five. But because the judge considered his acquitted charges as relevant conduct, his sentence was the same as it could have been had he been convicted by the jury of all seven charges. Osby argues that adjusting a sentence based on acquitted conduct violates his rights under the Fifth and Sixth Amendments, which guarantee due process under the law and the right to a jury trial. While the Supreme Court has declined to address similar questions on this topic in the past, some of the justices have expressed their discontent with the practice of using acquitted conduct in sentencing decisions. Osby asks whether the practice is unconstitutional.

Another new case,  Bryant v. United States, presents a question regarding the compassionate-release provision of the federal criminal code, as amended by FSA. The compassionate-release provision allows a district court to grant a sentence reduction and order immediate release upon a finding that a federal prisoner’s circumstances are “extraordinary and compelling” and that the sentence reduction is “consistent with applicable policy statements issued by the Sentencing Commission.”

            In 2019, Thomas Bryant filed a motion for compassionate release in district court. The government opposed his motion and argued that the reasons given in Bryant’s motion did not satisfy the criteria in the 2007 policy statement. The government argued that the 2007 policy statement was an “applicable” policy statement under the compassionate-release provision and that the district court was thus bound by it. The district court denied Bryant’s motion and the  11th Circuit affirmed. There is a circuit split over whether district courts are bound by the 2007 policy statement when deciding defendant-filed motions. He seeks review to clarify what constitutes an “applicable” policy statement for defendant-filed motions under the First Step Act.

            Congress and the President are also under heavy pressure to amend the PATTERN Risk Assessment tool created under FSA, to reduce the long list of disqualifying offenses for the ETCs, an inordinately complicated system for linking risk and needs assessments to the calculation and application of ETCs, credits that do not directly shorten prison terms (because of the 85 percent rule) but instead extend time spent in “prerelease custody” except to allow early transfer to supervised release (functionally shortening the prison term), and numerous reporting requirements.

            As usual, DOJ has used its discretion to reduce the sentence-reduction impact of FSA. Final rules have yet to be written, giving the new administration a lot of power to make changes to make programming more attractive. The new fascination with racial "equity" makes it highly likely that there will be substantial changes to DOJ's original PATTERN criteria.

            Finally, although the summer vacation season has temporarily reduced the number of appellate decisions, there is good news on another generally-forgotten front, those under "Old Law" jurisdiction, who have not been able to take full advantage of FSA. A bipartisan press release called for the following: "We are writing to highlight the situation of 236 "old law" federal prisoners, and to urge you to support their emergency release...just 236 people are still serving parole-eligible sentences. These 236 people were sentenced for federal crimes committed before 1987, when parole was abolished... Every one of these people has been eligible for release for many years, so there is no statutory bar to their release now." Let's make it happen.

            DOJ, under pressure from Congress to continue CARES releases, is now also confronting the issue that in some institutions, especially camps which hold only minimal or law risk individuals, the ration of prisoners to staff is approaching one-to-one, putting their continued existence in question. Congress should increase its oversight of these prisons to make sure that CARES-release decisions are not influenced by prison staff's fear of unemployment.

            Be not afraid and let not your heart be troubled.

 

Federal Legal Center, Derek A. Gilna JD (De Paul Law, 1975), and MARJ (Vermont Law, 2020), Director,   113 McHenry Rd. #173, Buffalo Grove, IL, and Indiana, dgilna1948@yahoo.com, for English-language newsletters and questions in English and Spanish, (dagilna1948@yahoo.com for emergency use only); federallc_esp@yahoo.com, Spanish language newsletter only.   Blogging at "Derek Gilna's Federal Criminal Justice Blog."  

Delta Variant Newest Threat to Prisoners in Medically Incompetent Federal Bureau of Prisons, Experts and Prison Guards Agree

Nation Celebrates Fourth of July and Joys of Freedom. but  Prisoners Know Its True Worth; Delta Variant Continues to Spread; DOJ Guards Union Comments on Medical Care; IRS Has Over 35 Unprocessed Million Tax Returns

 

by Derek Gilna

 

            While Americans take time off to celebrate the abstract concept of "freedom," they could benefit from hearing the voices of the imprisoned, for it is they who truly appreciate its worth. Fortunately for them, all the signs for further reform are still positive in all three branches of government. Criminal justice reform continues to enjoy wide support.

            In the Supreme Court, the justices will study the application of 924(c)'s added mandatory punishments for gun use in the case of United States v. Taylor, 20-1459, which formally presents this question: "Whether 18 U.S.C. 924(c)(3)(A)’s definition of “crime of violence” excludes attempted Hobbs Act robbery, in violation of 18 U.S.C. 1951(a). This development is clearly overdue.

            The Senate continues focusing on a pervasive overhaul of the criminal justice (and more restrictive oversight of the prison system)  system that advanced under Trump.  Senate Judiciary Chair Dick Durbin (D-Ill.) described criminal justice reform as a “personal priority” for himself and his GOP counterpart, Iowa Sen. Chuck Grassley. House Democratic Caucus Chair Hakeem Jeffries (D-N.Y.) said this week that he expects both chambers will "be moving a series of bipartisan criminal justice reform bills.        The Senate Judiciary Committee has approved three bills co-sponsored by Durbin and Grassley.  The first would give inmates the ability to petition for the sentencing changes established in 2018 to apply retroactively, among other provisions.  The second would prohibit a judge from considering any conduct for which a defendant was acquitted in sentencing. Finally, the third would expand eligibility for a program that allows elderly prisoners to serve out the remainder of their sentences at home.  That measure also includes a provision that would allow vulnerability to Covid-19 to qualify as a reason for compassionate release.

            Advocates are hoping to see further movement before Congress leaves for its scheduled August recess, Durbin said he is working to pass his bills by voice vote, but if that doesn’t work he will ask Senate Majority Leader Chuck Schumer (D-N.Y.) for floor time.  Grassley predicted that some time in the fall would be more likely.       The President is also under heavy pressure to complete his clemency overhaul and make good his promise to make a bold statement on clemencies in his first year in office.

            The more dangerous and more transmissible Delta variant has spread to nearly every state in the US, feeding health experts' concern over potential COVID-19 spikes in the fall. The variant was first identified in India and is now considered a variant of concern by the US Centers for Disease Control and Prevention, meaning scientists believe it can spread more easily or cause more severe disease. The Delta variant now accounts for about 1 in every 5 new coronavirus infections in the US, the CDC has said. And with more than half of the population still not fully vaccinated, according to the CDC, health experts and officials worry that regions with low amounts of virus protection could see surges in the fall and winter. https://covid.cdc.gov; www.ap.com.

            “A great many of the (prisoners) who ever had COVID, they were never tested,” said Dr. Homer Venters, a former chief medical officer of the New York City jail system who has inspected health conditions in prisons around the country over the last year. “In most prisons it ran through these places like wildfire. People were never tested.” www.ap.com.

            I was not surprised to hear a multitude of comments regarding incompetent  federal prison medical care, but was surprised that national media appears to have new interest in this story. Union leaders, prison health care workers and advocates for prisoners’ rights said it was troubling that the people leading the federal prison system’s Health Services Division during the COVID-19 crisis lacked medical licenses. The prison system came under fire last year from politicians and union leaders for pressuring guards to come to work sick, failing to follow its own pandemic plan and buying knock-off N-95 masks. “This is why our agency is broken,” said Joe Rojas, a union leader who works at the Coleman prison complex in Florida. “You have people who are unqualified and you have a medical pandemic, but the leadership has zero medical background.” www.themarshallproject.org.

            The IRS has admitted that it has over 35 million unprocessed tax returns, a staggering number for early July.   This number does not even begin to account for the thousands of inquiries and amended return/change of address forms that have been filed, further delaying refunds.   Make sure your forms are filed, but patience will be required.

In the circuits, in US v. Brenner,  19-5647, (6th Cir. 7-1-21) Brenner pled guilty without a plea agreement to being a felon in possession of a firearm and in possession of ammunition, 18 U.S.C. 922(g).He had three Tennessee felony convictions: aggravated assault in 2005, aggravated assault while acting in concert in 2014, and reckless aggravated assault in 2014. Under ACCA, 18 U.S.C. 924(e)(1), Brenner had to be sentenced to a 15-year minimum for her section 922(g) convictions if the government proved that she had three prior convictions for “violent felonies” having “as an element the use, attempted use, or threatened use of physical force against the person of another.” The district court agreed with Brenner that her reckless aggravated assault conviction is not a “violent felony” and sentenced Brenner to a within-Guidelines term of 110 months’ imprisonment. The Sixth Circuit held the government’s appeal in abeyance and dismissed the appeal after the Supreme Court’s 2021 Borden holding that the ACCA’s elements clause does not “include offenses criminalizing reckless conduct.” ACCA’s use of the phrase “against another” “demands that the perpetrator directs his action at, or target, another individual,” and “[r]eckless conduct is not aimed in that prescribed manner.”                 In US v Heyward, 19-1054, (2nd Cir. 6-28-21) the defendant was convicted of conspiracy to participate in a racketeering enterprise, in violation of 18 U.S.C. 1962(d) (Count One); conspiring to distribute narcotics, in violation of 21 U.S.C. 841(b)(1)(A), 846 (Count Two); and possessing or aiding and abetting the possession of firearms in furtherance of either the racketeering conspiracy or the narcotics conspiracy charged in the prior two counts, in violation of 18 U.S.C. 924(c) (Count Three). The jury specially found that the pattern of racketeering activity charged in Count One encompassed both narcotics and murder conspiracy conduct. The jury also found that a firearm relevant to Count Three was discharged in furtherance of the Count One racketeering conspiracy but was not discharged in furtherance of the separate Count Two narcotics conspiracy. The district court sentenced defendant to 120 months' imprisonment for Count Three, to be served consecutive to his concurrent 120-month sentences for Counts One and Two. The Second Circuit concluded that its recent decisions in the wake of United States v. Davis, 139 S. Ct. 2319 (2019), preclude section 924(c) from being applied to a murder conspiracy.  Therefore, given the possibility that defendant's section 924(c) conviction was based on murder conspiracy conduct rather than on a qualifying drug-trafficking offense, the court held that his conviction on Count Three is invalid. Accordingly, the court vacated defendant's section 924(c) conviction and remanded for further proceedings.                                                                                                                                                 Be not afraid and let not your heart be troubled.   Federal Legal Center, Derek A. Gilna, JD< (De Paul 75), MARJ, (Vermont LS 2021), Dir., 113 McHenry Rd., #173, Buffalo Grove, IL  60089 (And also Indiana) dgilna1948@yahoo.com (alternated: dagilna1948@yahoo.com), for English newsletter and questions in both English and Spanish; federallc_esp@yahoo.com, Spanish newsletter only; Blog at : "Derek Gilna's Federal Criminal Justice Musings and Reflections."