President Nominates Judge Who Would be the First Public Defender to Fill Supreme Court Vacancy

 

Biden Nominates Judge Who Would be the First Public Defender to Fill Supreme Court Vacancy; Supreme Court News;  PATTERN and Sentencing Credit Controversies Take Center Stage; COVID Cases and Appellate Updates

 

by Derek Gilna

 

            President Biden will reportedly nominate Judge Ketanji Brown Jackson to the Supreme Court. Brown successfully navigated  the Senate confirmation process when she was appointed to the federal bench about a year ago, and in that year has proven to be a competent jurist. Judge Jackson would be the first justice in decades to have worked as a lawyer representing poor criminal defendants. From 2005 to 2007, the Harvard Law graduate worked in the Washington, D.C., federal public defender’s office handling appeals for defendants who had been convicted of a range of crimes, from drug and weapons offenses and fraud to tax evasion. She would be a defendant's upgrade from Justice Breyer, who generally supported harsh sentencing laws.

            Although the news is dominated  by the war in Ukraine,  I do not believe that this will derail either the Supreme Court or Congress in their important work. My sense is that the sentencing reform bills will begin to move in late Spring, as they have broad bipartisan support, and law makers will be trying to show to voters in the Fall that they can actually pay constructive legislation.

            In the Supreme Court, one of those pending petitions is Williams v. US, 21-767,

which asks if a district court may consider the 2018 amendment to the sentences mandated by 18 U.S.C. § 924(c) in determining whether a defendant has shown “extraordinary and compelling reasons” warranting a sentence reduction under 18 U.S.C. § 3582(c)(1)(A)(i). A positive result would be, to quote a famous American, "huge."

            Also still pending are the consolidated cases of Ruan v. United States and Kahn v. United States. The Supreme Court granted certiorari and consolidated the two cases last November. Oral argument is set for March 1, 2022. The cases involve the appropriate jury instruction to be given, and the required proof of scienter (knowledge)  when the government prosecutes pain management physicians for illegal distribution of Schedule II controlled substances under 21 U.S.C. § 841(a)(1). The case "presents the question whether, and to what extent, a physician may assert a good faith defense to charges under the Controlled Substances Act (CSA)." 

            In a rare instance of something positive coming out of the pandemic, Washington's reluctance to let go of its new-found quarantine powers means that CARES releases will be with us for the foreseeable future, and probably continue until after the November election. Unfortunately, people in prison are still getting sick and dying from COVID, even after most states have relaxed their mask mandates. There are no more opaque and change resistant-organizations in DC than DOJ and the federal prison system, but Congress has introduced legislation to require any nominations be confirmed by the Seante. Let's hope that this means that the new director will come from outside the "system, " and have strong managerial abilities.

            Another major problem is DOJ's refusal to properly implement FSA law, which required all sentence credits to be posted by last January 15. As this is a clear violation of federal law, start the remedy process (although I am not convinced that it is necessary) and also send a cop out to the warden politely asking for prompt granting of FSA sentence credits to set the stage for possible litigation. The federal prison system is not exempt from following the law.

            On the COVID front, there are continued reports of substantial infection from Alderson, Carswell, Waseca, Rochester, Butner, Ashland, Oakdale, Pekin, Aliceville, to name a few, and an alarming uptick in other untreated and potentially fatal health problems. As long as people are still at risk of dying from COVID, or lack of treatment for other life-threatening chronic conditions, compassionate releases will continue. The pandemic has forced district court judges to acknowledge  the decrepit state of DOJ's health care  system. One of the questions that should be asked in compassionate release petitions is why prison medial authorities have never authorized the use of proven therapeutics for both pre and post COVID patients to mitigate both the short and long-term effects of COVID. Senator Ron Johnson recently asked why cheap and widely-available early treatments like Ivermectin, and other expensive new drugs like Remdesivir are not offered in prison, despite the National Institutes of Health (NIH) funding a study examining the effectiveness of ivermectin as an early treatment for COVID-19. https://www.ronjohnson.senate.gov/services/files/3F84D215-46DE-4FD4-A317-A110D1EF1468

            Here are a few of the most recent reported grants of compassionate release. United States v. Bland, 2020 WL 7237936, at *1 (N.D. Ind. Dec. 9, 2020), regarding,

Ashland FCI, where petitioner had served 82 out of 111 months, and had diabetes, hypertension, and removal of the spleen. Dr. Edelman said  that death from COVID-19 infection is more likely for those with diabetes because viral infection makes them more susceptible to pneumonia, kidney failure, and diabetic ketoacidosis. It remains especially critical that persons with type 2 diabetes have access to the best resources to manage glucose levels, observe social distancing measures, frequently clean, wear masks, and wear plastic gloves when they might be exposed to virus-laden surfaces.If federal sentencing presumes that incarceration will have deterrent and rehabilitative effects, then the court should not assume that 82 months of service have had no corrective effect on Mr. Bland to date.

            In United States v.  Hansen, 2020 WL 7240390, at *1 (W.D. Tex. Dec. 9, 2020,

Petitioner had  a 120 month sentence for child pornography, had served 90%, and  (1) did not engage in any predatory action, (2) did not create MISEC or participate in the activities depicted therein, (3) did not actively distribute MISEC, (4) cooperated with investigating agents, and (5) immediately accepted responsibility for his actions;

 a modest reduction of Defendant’s sentence will not minimize the seriousness of his offense or otherwise frustrate the purpose of the sentencing guidelines. He was confined at FCI  Texarkana, had a debilitated immune system due to splenectomy, chronic sinus infections, and a strong release plan.

            In United States v. Mays, 2020 WL 7239530, at *1 (S.D. Ind. Dec. 9, 2020)

Petitioner had a 180 months sentence  after reduction from 300 for crack and firearm, had served 90%, , was confined at FPC Yankton, an open cam, suffered from obesity and diabetes, and had a low risk of recidivism and minimum security status.

            In United States v. Pierce, 2020 WL 7406794, at *1 (D. Nev. Dec. 14, 2020)

Petitioner had 121-months imprisonment for child pornography, release date in 2023, confined at FCI Lompoc, had Type 2 diabetes, hypertension, hyperlipidemia, hyperthyroidism, and chronic kidney disease.

            In US v. McSwain, Appeal of  05-cr-50082, 19-1250, (7th Cir. 2021),

  defendant-appellant Montrell McSwain was sentenced for a two-count conviction: Count 1, for conspiring to distribute and to possess with intent to distribute more than one kilogram of heroin and more than fifty grams of cocaine base, in violation of 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(A)(i), (b)(1)(A)(iii), and Count 19, for possession of a firearm in furtherance of a drug trafficking. He received an enhanced penalty based on a 1999 Illinois felony conviction for possession with intent to deliver cocaine. As a result, McSwain faced an enhanced minimum sentence of twenty years for the conspiracy count. A few years after McSwain’s sentencing, Congress passed the Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372, which prospectively reduced the amount and kind of punishment for crack cocaine convictions. Having been sentenced well before the Fair Sentencing Act’s enactment date, McSwain was not eligible for reduced sentencing under the Fair Sentencing Act at that time. Despite his initial ineligibility, more than a decade after McSwain’s sentencing, the First Step Act of 2018, Pub. L. No. 115–391, 132 Stat. 5194, created an avenue for those sentenced before August 3, 2010, to seek retroactive application of the Fair Sentencing Act. Section 404(b) of the First Step Act authorizes—but does not require—district courts to reduce the punishment for crack cocaine offenses that occurred prior to August 3, 2010, using the Fair Sentencing Act’s shorter sentences. Section 404(c) carves out as ineligible for reduction those whose sentences were imposed or reduced in accordance with amendments to sections 2 and 3 of the Fair Sentencing Act, or whose previous § 404 motions were denied after a complete review on the merits.

            McSwain filed a motion for relief on September 23, 2019, under the First Step Act. His motion was denied on August 25, 2020. McSwain now challenges the district court’s ambiguous denial of his motion for relief under the First Step Act, which reasoned he was “not legally eligible for relief … because he was specifically found guilty of a quantity of heroin that qualified him for a mandatory minimum sentence.” Two  issues were raised on appeal: first, whether a defendant whose original conviction was for a multi-drug conspiracy that included cocaine base and another substance is eligible for resentencing under § 404 of the First Step Act, and second, whether the district court here abused its discretion in denying McSwain’s motion for relief under the First Step Act. Accepting the parties’ newly unified position that McSwain’s multi-drug conspiracy is eligible for First Step Act, the court granted relief.

Be not afraid, and let not your heart be troubled.   Derek Gilna, Director, JD, (De Paul Law School , 1975), MARJ, (Vermont Law School, 2020), Federal Legal Center, 113 McHenry Rd. #173, Buffalo Grove, IL   60089 (and Indiana); dgilna1948@yahoo.com (English newsletter and ALL inquiries, English or Spanish); (Alternate email: dagilna1948@yahoo.com, OR firststeprelief@yahoo.com). federallc_esp@yahoo.com, Spanish newsletter, but NO inquiries. Blog:  "Derek Gilna's Federal Criminal Justice Musings and Reflections.

BOP CARES Act Extended Indefinitely; BOP Frustrates Prisoners and Families Demanding Prompt Application of FSA Sentence Credits

 

Biden Extends "National Emergency, Renewing CARES Indefinitely; DOJ Stalls on Sentence Credits; Relief Legislation Still Awaiting a Vote; Appellate Updates 

by Derek Gilna 

            President Joe Biden said the U.S. national emergency that was declared in early 2020 due to COVID-19 will be extended beyond March 1, citing what he called a “risk to the public health and safety.” Since the CARES program depends upon there being a continuing health emergency, this is good news for federal prisoners, and removes a source of anxiety for many approaching their 50% dates.

            However, the battle continues to force DOJ to fully implement the First Step Act (FSA) mandated sentence credits and also to revise PATTERN classifications. The law is clear on this subject: FSA sentence credits were due to be posted on January 15, 2022, and there is no further wiggle room  for DOJ on this hard deadline.   Nor can RDAP graduates be denied their separate one-year sentence credit I would be happy to assist you in receiving your proper sentence credits. The extension of the state of emergency also breathes new life into compassionate release filings, as infection totals in the federal prison system continue to grow,  and the effects of Long-Covid and  adverse vaccine reactions strain the ability of already-inadequate prison medical treatment.

            One email received from you this week discussed the inequity of increasing sentences by "acquitted conduct," certainly one of the most sinister aspects of federal criminal sentencing. The enhancement of sentences after you plead guilty also falls into this broad area of injustice. Although the pending "Equal Act" has gotten most of the publicity, this bill, with five bipartisan power-house Senators behind it, could have a real impact on sentencing and dramatically curb prosecutorial sentencing abuse. If made retroactive (a provision not in the current draft) , it would require resentencing of tens of thousands of prisoners. In any event, it would prevent any court from considering a defendant's acquitted behavior or charge at a sentencing, unless it is to lessen his sentence.

            Now what of those of you who have a Medium Pattern classification, which permits the accrual of FSA sentence credits, but not their application to your sentence?

I am strongly advocating for Mediums to receive this credit, and there is intense Congressional scrutiny on the arguably racist methodology used in initial classifications. It is clear that this is also an appropriate subject for litigation, which can only spur positive change.  The clear and stated purpose of FSA was to give prisoners incentives to improve themselves, regardless of past offenses. I welcome your inquiries.

            Another subject for Congressional inquiry is the scandalous state of federal prison medical care, which is a national disgrace. I have been inundated by comments from prisoners who have serious, chronic diseases, including cancer, that have not only not been properly diagnosed, but even after diagnosis, have not properly treated (See the case of the late Michelle McGee).   Some prisons are six months behind in transporting prisoners for outside medical evaluation or treatment.

            And which prisons are the worst?   Ironically, it the so-called "medical centers" which are the worst offenders. The COVID crisis exposed their inadequacies and lack of staff to Congress and the entire country, and the situation is only growing worse, as "Mix and Match" continues as clearly purposeful action. Lack of adequate medical treatment, decaying facilities, inadequate food, minimal commissary, and short-staffed  facilities make a mockery of Congressional intent.  Although "hard-time credit" filings are only the stuff of rumor, there are still plenty of avenues of relief available under FSA.

            As promised,  I include some recent favorable compassionate release decisions. See: United States v. Edwards, 2020 WL 7263880, at *1 (D. Kan. Dec. 10, 2020); prisoner at FCI Beaumont Low, now in community confinement at RRM, sentenced to 48 months for drugs (marijuana), release date February 2021, who had Hypertension and seizure condition. Also, United States v. Cano, 2020 WL 7415833, at *4 (S.D. Fla. Dec. 16, 2020). Among the several reasons advanced by Defendant, the Court focused on two she declined to entertain when deciding Defendant’s pro se  petition. Defendant explains (1) there are two serious issues with his Judgment and (2) none of his Co-Defendants received the sentence he received — a life sentence.   He was granted reconsideration based on manifest injustice, can now recognize extraordinary and compelling reasons based on discretion.

            Additionally, see Brown v. United States, 2020 WL 7425328, at *1 (D. Md. Dec. 17, 2020), where petitioner was 71 years of age, had been incarcerated since May 2000, and was serving a sentence of life plus 30 years for drug trafficking and related offenses, imposed in August 2001. ECF 175.At the time, that sentence was mandatory for violent  and drug crimes. Also, see United States v. Marty, 2020 WL 7425338, at *1 (E.D. Cal. Dec. 18, 2020), where prisoner got 120 months for tax fraud. Petitioner had obesity, asthma, in her 60s, former smoker, was housed at FCI Dublin (which reportedly has 200 current cases), and had a  release date of December 2025 (served 35%). There are of course more.

            Nothing sums up DOJ COVID incompetence more than this recent prisoner account: "Testing is sporadic and random and recovery comes without even having a re-test. If an inmate test positive for the virus, they are moved out of the unit for 10 days, then they are placed back in to that same unit with inmates that are still negative. After the January 2022 breakout they tested a unit on the 5th of January where approximately 30 ... tested positive (via rapid test) they then tested again on the 19th where about 77... tested positive (lab test;: the last and finale test was done on the 7th of February, with no positive cases (rapid test)- peculiar given that when a test is sent to the lab that there is a spike in cases compared to the rapid test, that reports little to no cases." This pattern of ineptitude has been replicated in dozens of federal prisons in the past three months.

            Sheridan, the only federal prison in Oregon, is a special case.   There authorities have responded to the crisis not by attempting to solve the problem, but by censoring prisoner email contacts (full disclosure: including mine). From local media, comes this frightening account: "Inmates describe the Sheridan prison complex in crisis, unable to meet not just health care, but other basic needs, like clean laundry and sanitary food prep.(and)...have not improved over the course of the pandemic and numerous medical requests from inmates inside the facility continue to go unaddressed...Cancer patients have not received treatment for months. Inmates who say they’ve attempted suicide have not received the medication or mental health treatment they’ve requested. In December, a man died in his cell, according to (a) Feb. 4 court filing (death number 4),... the fourth person in the last year who died (there)....Lisa Hay, Oregon’s federal public defender, described the problems inside the Bureau of Prisons run facility as below the standards required by the U.S. Constitution. 'What’s most dismaying to me is that we’re hearing the same kinds of complaints for two years and ...“People are dying, people are being harmed, people are being harmed psychologically and physically.'”

            As the dust settles over mask and vaccine mandates in the outside world, new scrutiny is being paid to those individuals who had serious reactions to the vaccine, as noted in various research websites. Of over 7 million reactions noted, 75% noted "Nervous System Disorders,"  Skin tissue disorders, " %, 40%, Respiratory disorders, 14%, Psychiatric disorders, and 7%, "Eye disorders." https://www.theepochtimes.com/worst-experience-of-my-life-early-vaccine-adopters-suffer-injuries-struggle-to-get-proper-care_4277958.html?utm_source=Health&utm_campaign=health-2022-02-20.

            In the Circuits: Ruvalcaba v US, 21-1064, (1st Cir. 2-16-22) where the First Circuit held that a district court, when adjudicating a prisoner-initiated motion for compassionate release, is not bound by the Sentencing Commission's current policy statement and may consider the First Step Act's (FSA) non-retroactive changes in sentencing law on an individualized basis to determine whether an extraordinary and compelling reason exists for compassionate release. While Defendant was serving his sentence Congress passed the FSA. See Pub. L. No. 115-391, 132 Stat. 5194. The FSA reduced certain enhanced mandatory minimum penalties and modified the criteria for qualifying prior offenses and also amended the compassionate release statute, 18 U.S.C. 3582(c)(1)(A), to allow prisoners to file their own motions for compassionate release. Defendant subsequently moved for compassionate release. The district court denied the motion, concluding that the FSA's changes could not support an extraordinary and compelling reason for compassionate release. The First Circuit vacated the judgment below, holding that the court erred by concluding, as a matter of law, that the FSA's prospective changes to the mandatory minimum penalties could not, even when considered on an individualized basis, support a decision for compassionate release.

In US v. Bates, 19-10813 ( 5th Cir. February 7, 2022), Per Curiam, Bates was convicted of being a felon in possession of a firearm and received a 71-month sentence. On appeal, he argued that the district court improperly applied an enhancement under the Sentencing Guidelines for defendants with prior felony convictions for “crime[s] of violence.” U.S.S.G. 2K2.1(a)(4)(A). Bates’ prior conviction was for Texas’s version of assault of a public servant, which has a minimum mental state requirement of recklessness. In 2020, the Fifth Circuit rejected his argument. The Supreme Court then issued its 2021 “Borden” decision that crimes that can be committed recklessly cannot qualify as a “violent felony” under the “elements clause” of the Armed Career Criminal Act. The Fifth Circuit subsequently held that Borden governs what can qualify as a crime of violence under the Sentencing Guidelines. The Fifth Circuit then vacated Bates’ conviction and remanded to the district court. Under Borden, because Texas assault of a public servant can be committed recklessly, Bates has not committed a crime of violence as defined by the Sentencing Guidelines’ elements clause. Be not afraid, and let not your heart be troubled. Derek Gilna, Director, JD, (De Paul Law School , 1975), MARJ, (Vermont Law School, 2020), Federal Legal Center, 113 McHenry Rd. #173, Buffalo Grove, IL   60089 (and Indiana); dgilna1948@yahoo.com (English newsletter and ALL inquiries, English or Spanish); (Alternate email: dagilna1948@yahoo.com, OR firststeprelief@yahoo.com).federallc_esp@yahoo.com, Spanish newsletter, but NO inquiries.Blog:  "Derek Gilna's Federal Criminal Justice Musings and Reflections."

BOP Continues Systemic Failure, This Time by Botching Proper Application of Sentence Credits

 

New Wave of OMICRON Infections in Prison Spur More Compassionate Releases; CARES Releases Continue; Congress Investigating Continuous Lockdowns as Prisoner Families Speak Out;  Emerging Data about long-term COVID-19 symptoms: New Studies on High Prison Infection Rate Confirmed by Analyzing DOJ Statistics; Case Updates

 

by Derek Gilna

 

            Compassionate Releases in district courts have increased in the past three months, as judges have grown more skeptical of DOJ assurances that the pandemic in federal prison was "under control."  Reported cases show that more thoughtful judges are paying close attention to individual virus risk, as case totals soar at Alderson, Carswell, Butner, Aliceville, Duluth,  Rochester, Coleman, Greenville,  Dublin, and other facilities.

            Investigations have also begun not only on the DOJ failure to staff and fund a health-care infrastructure to deal with COVID, but also it consistently fails to properly diagnose and treat both serious and chronic conditions.  House and Senate Committees have both subpoena power and the power of the purse over the federal prison system. Delays in sentence credits and flawed PATTERN scores and the recent lockdowns are also under review. DOJ has responded to my newsletter by blocking my emails at Phoenix, Sheridan, and now, Danbury, saying that it is blocking them because they are a "security" issue.

            It is also clear now that DOJ is either ignorant or willfully negligent regarding the proper computation of sentence credits,. Since DOJ keeps extensive computer records of all programming activity reported by the individual institution, that information is readily available with a few keystrokes on a computer. Since DOJ has shown itself to be in violation of First Step Act provisions, I feel that this is a violation of federal law, which can be addressed by a 2241, or other means, without the need to exhaust remedies. I welcome your inquiries.

            A non-public DOJ Memo, dated December 10 and circulated to federal prisons, put more emphasis on “Sentence length,” in CARES releases, stating that it “is likely to be a significant factor” in determining who would be re-imprisoned. after release, a legally indefensible position. Interestingly, only 9 of the 4,879 people placed on home confinement under the CARES Act — that is, less than two-tenths of a percent — have been reincarcerated for new criminal conduct, but, more than 100 prison employees have been arrested, convicted of, or sentenced for crimes since the beginning of 2019. Given that the federal prisons have 36,739 employees, prison employees have a 1.5 times higher rate of alleged criminal conduct than the people the agency supervises on CARES Act home confinement, over a roughly similar period. Considering that other programs like RDAP, which gives serous sentence credit, are only offered in a minority of institutions, CARES is one DOJ program that is clearly working.

            It is also clear that the percentage of prisoners who have gotten COVID at least once is well over 50%  (and probably closer to 80%), and that OMICRON has been much more deadly in prison than in the outside world.   The reason is that DOJ refuses to treat "long Covid," a recognized medical condition in reputable hospitals and medical education centers, leaving prisoners vulnerable to repeated reinfection. High starch diets nutrition, expired food, and meager portions can only increase  prisoners' misery, illness, and death.

            Researchers in Switzerland examined the long-term symptoms of patients who had contracted SARS-CoV-2. The study used several assessment scales in data collection, including the Fatigue Assessment Scale, the modified Medical Research Council Dyspenea scale, and the 21-item Depression, Anxiety and Stress Scale Trusted Source. The vast majority of the participants — 89% — had symptoms during their period of initial infection, and 19% of the participants were hospitalized due to COVID-19 for an average of 7 days. Between 6 and 8 months after initial infection, a little over a quarter of the participants reported not fully recovering from COVID-19.

            Lead author of the study, Milo A. Puhan, MD — who is a professor of epidemiology and public health at the University of Zurich and the director of the Epidemiology, Biostatistics and Prevention Institute said, “Our data show that long COVID affects different people in different ways. About one quarter had not fully recovered after 6–8 months. While some individuals complained about persisting symptoms, others described symptoms of fatigue, dyspnea, and depression. We found that these outcomes appear to occur together only in [a] few participants, while the majority was affected by only one or two of these outcomes simultaneously.”

https://www.medicalnewstoday.com/articles/more-than-a-quarter-of-people-with-covid-19-not-fully-recovered-after-6-8-months#Emerging-data-about-long-term-COVID-19-symptoms.

            Virtually every institution has reported  high numbers of COVID cases, some with percentages of infection as high as 80%.    The following is a fairly typical overview of the past week's lockdown: " They had us... at Greenville locked down with NO communication since the 13th. They opened communication today because Region came in.  But they didn't want us reporting how many Covid cases were really here.  There were 2 alleys full of positive cases, the gym had 19 cases, the library had 7 and the chapel 5. There were over 60+ cases at one time here. They only feed us boloney sandwiches and cereal!!  I am so weak from having no real food!!  I was locked in the R&D room for 3 weeks with no heat and no hot water and no one would even come check until I sent the warden a certified letter. So yes it has been hell!!"

            The CDC has shed more light on why federal prison infection totals are much higher than outside. . According to a Center for Disease Control and Prevention (CDC) study undertaken in 2021, “... incarcerated populations have experienced disproportionately higher rates of COVID-19–related illness and death compared with the general U.S. population, due in part to congregate living environments that can facilitate rapid transmission ...” Interesting enough, the study by the CDC was conducted in conjunction with FCI Texarkana in Texas.

            CDC’s study demonstrated the potential for COVID-19 outbreaks in congregate settings including correctional and detention facilities, even among resident populations with high vaccination rates. It turns out that even those who are vaccinated are prone to being reinfected if they are in tight living quarters with those who become infected and are not vaccinated. Prisons present an environment where people are exposed to higher doses of infection that can overwhelm their dose of vaccine protection. https://www.cdc.gov/mmwr/volumes/70/wr/mm7038e3.htm.

            Prison COVID-19 infection rates among inmates are also far worse than what the DOJ is reporting and their own figures reflect that. A graph that tracks the cumulative daily infection rates of COVID-19 in institutions and DOJ segregates infections between those of staff and those of prisoners. Cases among prisoners spiked from a few hundred in mid-December 2021, as the Omicron variant spread quickly, to almost 10,000 infections by late January 2022 ... just over 6 weeks. The prisoner cases then appear to drop precipitously once hitting that peak, seemingly reflecting a miraculous recovery.  “If you look at the rates of infection among staff, who are tested daily as part of the institutional regimen or in the community where tests are more available, you will see a rise in cases in line with those of prisoners, but as the infection wanes, the reduction is more gradual, as would be expected because staff generally must test negative before being considered ‘recovered.’”  ...“(DOJ) simply is not testing prisoners to determine if or when they are recovered. Rather, they are just assuming recovery after approximately 10 to 14 days.  The rate of drop in infection among prisoners cannot be otherwise explained, particularly if you compare the trends between prisoners and staff. The problem, therefore, is that infectious prisoners are being returned to the general population." Bingo! Mark Allenbaugh, www.sentencingstats.com.

            Since December 1, 15 incarcerated people have died in  DOJ custody, including one individual each at Lewisburg United States Penitentiary and Loretto Federal Correctional Institution in Pennsylvania, one incarcerated person at the Beaumont Federal Correctional Center, two people at the Fort Worth Federal Medical Center in Texas, and three people at the Butner Federal Correctional Center in North Carolina, and four at Alderson. In addition, another two incarcerated people have died in the Coleman Federal Correctional Center in Florida. There has also been one new staff death at the United States Penitentiary in Atlanta, Georgia. www.sentencingstats.com.

            A quick summary of some new compassionate release grants: United States v. Ramos, 2020 WL 7247208, at *1 (N.D. Cal. Dec. 9, 2020), from FCI Dublin, with conviction for Tax fraud, 60 months sentence,  served 20 months; (30%), release date is August 2023;50 years old, high blood pressure, obesity, diabetes, high cholesterol. Three 3553(a) factors weigh in favor of release over time served: Medical care, No need to protect public, Not just punishment. See also: United States v. Page, 2020 WL 7258034, at *1 (D. Conn. Dec. 10, 2020), where prisoner had documented medical conditions include being diagnosed with an aortic aneurysm; needing to use proton-pump inhibitors to treat gastroesophageal reflux disease; sleep apnea (which can lead to the development of cardiac arrhythmia, heart attack and stroke); and being overweight. Given the defendant’s personal growth and change of outlook since he committed the offense conduct in the 2017 Case and his combination of medical conditions, the court believes that a sentence of time served would be appropriate after considering the applicable factors set forth in 18 U.S.C. § 3553(a).

            Also, United States v. Pacheco, 2020 WL 7261109, at *1 (D. Minn. Dec. 10, 2020), 90 months sentence, at FCI Victorville Medium II, Release date of 2024, sentenced in 2018, Former smoker, mental health, obesity. United States v. Villa-Valencia, 2020 WL 7263894, at *1 (D. Kan. Dec. 10, 2020), where prisoner was sentenced to 78 months, release date September 2021, had an Immigration detainer, was 36 years old, HIV, hypertension.    Housed at Great Plains Correctional Institution.

"But the court’s analysis today is not necessarily identical to its earlier application of § 3553(a) to Mr. Villa-Valencia. The court does not hold its analysis of each of the sentencing factors static across time. Rather, today the court considers certain non-static § 3553(a) factors when ruling on a motion under § 3582(c)(1)(A), it takes into account facts and circumstances that have emerged since the court’s original sentencing decision."

 

There are of course more decisions, which I will report next week.  

 

"We are what we repeatedly do. Excellence then, is not an act, but a habit.”   Will Durant.

 

Be not afraid, and let not your heart be troubled.

 

Derek Gilna, Director, JD, (De Paul Law School , 1975), MARJ, (Vermont Law School, 2020), Federal Legal Center, 113 McHenry Rd. #173, Buffalo Grove, IL   60089 (and Indiana); dgilna1948@yahoo.com (English newsletter and ALL inquiries, English or Spanish); (Alternate email: dagilna1948@yahoo.com, firststeprelief@yahoo.com).

federallc_esp@yahoo.com, Spanish newsletter, but NO inquiries.

Blog:  "Derek Gilna's Federal Criminal Justice Musings and Reflections."

    

 

           

Christmas in January: Thousands Released by First Step Credits; PATTERN Classifications Next For Congressional Scrutiny;

 

Christmas in January: Thousands Released by First Step Credits; PATTERN Classifications Next For Congressional Scrutiny; Accountability on Horizon for COVID Incompetence? DOJ Inspector General Criticized; Covid and Circuit Updates.

 

by Derek Gilna

 

            After dragging out the implementation of First Step Act Sentence Credits as long as possible, DOJ finally began the long-awaited process of releasing individuals who were entitled to immediate release, in some cases months after they should have been released. In the past two weeks, almost 5000 prisoners have been released to either halfway house, home confinement, or to outright release. Legal experts are still considering whether DOJ is financially liable for keeping individuals in custody unnecessarily, but that subject will be revisited in a future column.

            So for those remaining, who exactly is eligible to apply FSA Time Credits toward pre-release custody or supervised release? Those in federal custody who have successfully participated in Evidence-Based Recidivism Reducing Programs (EBRR or Programs) or Productive Activities (PA), those classified as “minimum” or “low” risk for at least one assessment or who can obtain warden approval, and those individuals who earned credits equal to the remainder of their prison term. DOJ has apparently backed off its initial opinion that certain orderly positions were ineligible for sentence credit.

            Thos who are serving state convictions, those who have a final order of removal under immigration law, those with a sentence for a conviction the First Step Act identifies as disqualifying, as those with certain, generally violent, current or prior convictions. These credits can be applied toward pre-release custody (halfway house or home confinement transfers) or early transfer to supervised release (essentially shortening the sentence), with a one cap, but people may be transferred to pre-release custody earlier.

            What about those who have been classified as "medium," who are eligible to earn, but not to immediately apply those sentence credits? Since this is an arbitrary  DOJ interpretation of a law, you should send a cop out to your case manager for an immediate re-classification if you feel that it was unjust.  In my opinion, this is immediately judicially reviewable, without resorting to administrative remedies.

            From where you sit, it can be hard to process, but I can tell you that I have never seen such outright inter-governmental scrutiny directed to DOJ and the federal prison system. The pandemic exposed many federal agencies as grossly incompetent, and DOJ's procedures, decision-making, and reputation have also taken a huge hit, with well under half of the US population saying they have lost trust in it and the rest of its agencies. The past week the DOJ Inspector General was caught by a federal special prosecutor, John Durham,  investigating the "Russiagate" manufactured scandal, for withholding important evidence, including key cell phones. This comes as no surprise to me, since these institutions all generally work together to protect themselves and their cronies, but  the truth has a way of eventually coming out. However, in the past year there has been a welcome movement in and out of Congress to "rein in" unaccountable agencies, such as DOJ. It will not be an easy or quick process.

Another area that has been negatively impacted has been prisoner nutrition. The national menu is almost never followed, in any institution, and this combined with chronic commissary shortages, has had a negative effect on prisoner health This is reflected in the high number of OMICRON and DELTA related infections and deaths among prisoners in the past two or three months. According to one prisoner: " food is terrible - expired milk, moldy bread, not following BOP national menu at all for the last three weeks."  This combined with spotty or non-existent prison health care, makes federal prisoners as a group vulnerable to COVID.                                                       Turns out that it is not our imagination that prisoners are more vulnerable to OMICRON than the outside world. " The Consequences of Incarceration for Mortality in the United States," by Sebastian Daza, Alberto Palloni, and Jerrett Jones, published in Demography , www.ncbi.nim.nig.gov, states the obvious:  "an emerging line of research considers the consequences of incarceration for individual’s health and well-being. Recent studies find that those with an incarceration history report higher chronic health problems (Schnittker & John, 2007), lower self-reported health (Massoglia, 2008a), higher obesity (Houle & Martin, 2011), more infectious diseases, stress-related illness (Massoglia, 2008b), and psychological disorders (Massoglia & Pridemore, 2015).           The tragic infection and death rates at Alderson and Carswell could have been avoided if DOJ had actually had an "Action Plan," that was not merely a piece of paper to be  with the courts, but an actual training program circulated to Regional and prison authorities. With the pandemic now approaching two years, one would think that DOJ would actually have a clue on what to do, other than "Mixing and Matching" positives and negatives, based upon what staff have themselves told prisoners at many locations. Amazingly, both Alderson and Carswell continue to have more NEW infections, and they are certainly not alone.                                                                                                                                       FPC Duluth has yet another outbreak, and its neighbor FMC Rochester has seen "official" cases for prisoners climbing well above 50, and approximately half of that for staff. Peterson, Yazoo City, Thompson, Camp Lee, Butner-all units, Oakdale, FCI Schuylkill, ALiceville, Gilmer, and Pekin, both men and women's affected, with all these instituions in Code Red, with full, or almost full lockdowns, and high levels of infection.          Weren't we told by the government, and now certain federal courts, that if you are vaccinated, you are not at risk?   Not so fast: In early August 2021, the director of the Oxford Vaccine Group, professor Sir Andrew Pollard, actually spoke out against the idea that the COVID shots were the answer everyone was looking for. At the time, he referred to the idea that vaccine-induced herd immunity against COVID was “mythical.” As reported by Yahoo! News, Aug. 10, 2021:4 “… Pollard … said … that herd immunity is ‘not a possibility’ with the current Delta variant. He called the idea ‘mythical,’ warning that vaccine programs should not be developed around it. During that same APPG meeting, professor Paul Hunter from the University of East Anglia stressed that variants capable of evading the COVID shots were “an absolute inevitability.” Pollard and Hunter both turned out to be correct, as Omicron’s vaccine-evading capacity has now been documented. Yahoo News, Aug. 10, 2021.                                                                               Current methods of PATTERN classification are also under review. US Attorney General Merrick Garland has directed the department to look for ways to assess racial bias and make the tool more transparent, a spokeswoman said. One option is to adjust the cutoff points between the risk categories, allowing more prisoners to earn credits for release, which would "maximize access to First Step Act relief while ensuring public safety," she said. DOJ  has to reevaluate the 14,000 people in prison who got lumped into the wrong category. "This is just one example of the ways that harmful artificial intelligence systems are being rolled out in everything from the criminal legal system to employment decisions to who gets access to housing and social benefits," said Sasha Costanza-Chock, director of research and design for the Algorithmic Justice League, which studies the social implications of artificial intelligence.           In US v Benton, 19-7471, (4th Cir.,  January 24, 2022), the Fourth Circuit reversed the district court's denial of defendant's 28 U.S.C. 2255 motion seeking to vacate his sentence. The district court found that defendant qualified as an armed career criminal by relying on prior convictions that were not identified as predicates in defendant's presentence report and of which he had no notice at sentencing. The court concluded that the district court's finding was contrary to United States v. Hodge, 902 F.3d 420 (4th Cir. 2018), which held that the government cannot rely on collateral review on ACCA predicates that were not identified at sentencing, in order to preserve an enhancement that no longer can be sustained by the original predicates. Because there was a Hodge violation in this case, the court vacated defendant's 18 U.S.C. 922(g) sentence and remanded for resentencing.        In US v. Freeman,   19-4104, ( 4th Cir. January 25, 2022), on rehearing en banc, the court vacated defendant's sentence for possession with intent to distribute hydrocodone and oxycodone. Instead of pursuing defendant's objections, counsel relied entirely on a motion to enter a drug court diversion program (the BRIDGE program) that could have permitted defendant, if admitted, to enter treatment instead of going to prison. The court concluded that defendant clearly received ineffective assistance of counsel where counsel was unequivocally wrong on the law when he waived her meritorious objections to the PSR on the ground that none of those objections reduce the number that is relevant to this court. Rather, if successful, defendant's objections would have reduced the low end of her Sentencing Guidelines range by almost ten years. Because counsel's deficient performance prejudiced plaintiff, the court remanded for resentencing.                                        In US v White, 19-4886, ( 8th Cir. January 27, 2022), White was convicted of being a felon in possession of a firearm. In determining White’s sentence, the district court applied the Armed Career Criminal Act (ACCA) 18 U.S.C. 924(e), based on three prior convictions for “violent felonies,” including Virginia common law robbery. The court imposed the ACCA’s mandatory minimum sentence of 180 months’ imprisonment. White argued that he did not qualify as an armed career criminal because Virginia common law robbery can be committed without the actual, attempted, or threatened use of physical force, by threatening to accuse the victim of having committed sodomy. The Virginia Supreme Court responded to a certified question: Under Virginia common law, an individual can be convicted of robbery by means of threatening to accuse the victim of having committed sodomy “if the accusation of 'sodomy’ involves a crime against nature under extant criminal law.” The Eighth Circuit then vacated the sentence. Virginia common law robbery can be committed without proving as an element the “use, attempted use, or threatened use of physical force,” an element required for prior convictions to qualify as predicate offenses under the “violent force” provision of the ACCA.   "Act like what you do makes a difference.   It does."    Henry James.   Be not afraid, and let not your heart be troubled.   Derek Gilna, Director, JD, (De Paul Law School , 1975), MARJ, (Vermont Law School, 2020), Federal Legal Center, 113 McHenry Rd. #173, Buffalo Grove, IL   60089 (and Indiana); dgilna1948@yahoo.com (English newsletter and ALL inquiries, English or Spanish); (Alternate email: dagilna1948@yahoo.com). federallc_esp@yahoo.com, Spanish newsletter, but NO inquiries. Blog:  "Derek Gilna's Federal Criminal Justice Musings and Reflections."