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.
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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."
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