Supreme Court Jarvis Case Seeks Reset of Federal 924(c) Sentencing; Signs Point to Probable Replacement of Prison Leadership; ACLU Lawsuit Attacks Unequal CARES Treatment; Unfair Application of Deportation Statutes Under Judicial Review; Appellate Updates
by Derek Gilna
The Jarvis case currently pending before the US Supreme Court (SC) would eliminate many 924(c) sentencing issues, and has attracted as amicae supporters various criminal justice reform heavyweights, such as FAMM, and the NACDL, National Association of Criminal Defense Lawyers. In their recent brief they argued, "The question presented is extraordinarily important...More systematic considerations—including the sheer number of people affected, the recognized injustice of sentence stacking under 18 U.S.C. § 924(c), and the prevalence of racial disparities in Section 924(c) sentences—confirm the question’s importance. In addition, the issue warrants review because a decision here may clarify when non-retroactive changes in federal law can be considered in assessing grounds for compassionate release."
However, 924(c) relief will not succeed or fail only as a result of Jarvis.
The 2018 First Step Act codified amendments to the statutorily required
mandatory minimums for third drug offenses. See Pub. L. No. 115- 391, 132 Stat.
5194, § 401 (amending 21 U.S.C. § 841(b)(1)(A)). Congress reduced the mandatory sentence for
such an offense from life in prison to 25 years. See 21 U.S.C. § 841(b)(1)(A).
It also modified what constitutes a qualifying prior drug offense—the term no
longer covers any prior drug felony, but is instead now limited to “serious”
drug felonies, narrowly defined.
There are clear indications that the obvious dysfunctionality of the decaying federal prison system has attracted the attention of DOJ and perhaps even Biden himself, as the Trump-era federal prison director remains under fire from Congress, the DOJ Inspector General, and families of prisoners who continue to bombard their elected representatives with true stories of loved ones third-world conditions. Biden, who has been president for almost a year, now owns the self-inflicted crisis, and unless changes are made, will pay a heavy political price for yet another example of his administration's bureaucratic incompetence.
Nowhere has this bureaucratic incompetence and deliberate indifference been as obvious as what is now transpiring at Waseca and Alderson, two women's facilities previously ravaged by COVID cases, and populated by hundreds of "Long-COVID" sufferers. Waseca has more than 91 virus positives, and Alderson has a similar number. However, I emphasize that there is virtually no facility that has not seen a new surge in cases.
Complicating the situation is the federal prison guards unit resistance to a vaccine mandate, currently stayed by federal court orders. As has been previously shown, mere vaccination, even if competently done with a non-expired vaccine, is no guarantee that you will not get infected (or reinfected.). Therefore, there are strong arguments refuting the government's default position that the vaccinated are safe and should not be eligible for compassionate release.
This American Civil Liberties Union and ACLU of the District of Columbia recently filed a lawsuit against the Department of Justice and the federal prison system under the Freedom of Information Act, seeking information about the federal government’s potential plan to force people placed on home confinement under the CARES Act back to prison after the pandemic subsides, even if they have followed all requirements of home confinement, been reunited with their families, and successfully reintegrated into society. The information this lawsuit obtained will also shed light on why some institutions appear justified in failing to following DOJ CARES guidelines.
In a case
of importance to those who are not citizens of the US, the US Supreme Court, in United States v. Palomar-Santiago, No. 20-437 (May 24, 2021), ruled that as a matter of
statutory interpretation (1) each of 8 U.S.C. § 1326(d)’s three requirements
must be satisfied; and that (2) a showing by the defendant that the deportation
proceeding was “fundamentally unfair” under § 1326(d)(3) — because the
immigration judge (IJ) mistakenly told him that he was removable as an
aggravated felon due to his DUI conviction (this became error six years later
in Leocal v. Ashcroft, 543 U.S. 1 (2004), holding that a DUI is not a §
16(b) “crime of violence” and thus not an “aggravated felony”) – does not by itself suffice to dismiss a reentry
indictment. However, it further opens the door for petitions challenging those
indictments.
In a previous 9th Circuit case reported here, Gustavo Carrillo-Lopez, the defendant in the criminal case who was first charged under Section 1326 by the Department of Justice under President Donald Trump, filed a motion asking to dismiss the indictment against him. Carrillo-Lopez argued that Section 1326 was an unconstitutional violation of the Fifth Amendment 's equal protection guarantee.
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In the circuits, in US v Lewis, 17-4737, ( 4th
Cir., The PSR
recommended a two-level enhancement because a victim sustained bodily injury.
Lewis objected that an injury must be “significant” to sustain the
enhancement and that an injury must have “more than momentary consequences”
to be “significant.” The district court “guess[ed]” that the manager had
suffered a “mild concussion,” applied the enhancement and sentenced Lewis to
46 months followed by 84 months for Count Good judgment comes from experience, and a lot of that comes from bad judgment.: WILL ROGERS. Be not afraid and let not your heart be troubled. Derek Gilna, Director, JD, (De Paul, 1975), MARJ, ( federallc_esp@yahoo.com, Spanish newsletter, but NO inquiries. Blog: "Derek Gilna's Federal Criminal
Justice Musings and Reflections." |
