FSA Motions Are Cutting Sentences, Lame Duck BOP DIrector Visits Aliceville, Ducks COVID-Infected Prisoners

 

Congress Returns to Work; Negotiations Continue on Major Sentence Reform Bills; US Attorneys Object to FSA Sentence-Reduction Motions, But Concede Their Legality; First FSA Sentence Credit Cases Hit the Courts; PATTERN Revisions in the Works; COVID Returns, Or Did It?; Appellate Updates

 

by Derek Gilna

 

            Congress returns to work after an extended Easter break to consider a package of three sentencing reform bills already approved on a bipartisan basis by the Senate Judiciary Committee. Senate passage of The First Step Implementation Act (S. 1014), the Prohibiting Punishment of Acquitted Conduct Act (S. 601), and the Covid-19 Safer Detention Act (S. 312) would make meaningful if incremental, progress toward a more just criminal legal system. The EQUAL Act has been endorsed by DOJ.  House passage of all of these bills has either happened or is expected, so the issue is WHEN the Senate leadership will bring it for a vote. I also feel that it is likely that there will be some grants of clemency after the November election, probably before Christmas.

            Sentence reductions are not only possible under First Step Act (FSA)-they are happening.    Even though US attorneys object (specifically to the "extraordinary and compelling circumstances" criteria),  they must concede that reductions are in order on career offender cases, because it is the LAW. If you have a career offender case where one or more of the predicate offenses no longer qualifies, you should strongly consider filing.

            The first court filings seeking FSA sentence credits of up to one year have begun to hit the courts, and are still in the early stage. The law is clear that FSA gave ALL non-violent, qualifying prisoners, no matter their security level, the right to those credits, so if you qualify for CARES (in no danger of ending in  the foreseeable future) or have an outdate in 2024,  you know whom to contact.  

            Congressional pressure continues for yet another change to PATTERN scoring. DOJ in a pending report to Congress said it would make no changes to how it evaluates violent recidivism risks, saying that measure provided an essential check for "public safety." Instead, the department shifted the boundaries between other risk levels for its general recidivism algorithm, and estimated that 36 percent more Black men and 26 percent more Hispanic men might now qualify as minimum or low risk, with smaller increases for Black and Hispanic women in prison. Advocates are still not satisfied.

            A prisoner post that perfectly sums up DOJ's ineffectual response to COVID and its non-response to the current BA.2 variant:  Writing from Aliceville where Carvajal made an appearance last Thursday with his entourage. He toured one unit, was apparently impressed with the shiny clean floors, swung by the rec yard, and then left... inmates were forced to power wash the compound at 4:30 am and wax the floors until 2 am for days on end to get ready. It was epic in its misguided priorities. No one was allowed to speak with him, of course, but there would have been no point in that anyway, since he didn't show care or concern of the last two+ years of COVID so he certainly does not now in the last month on the job. ...Meanwhile, BA.2 is racing through Aliceville - there are hundreds of people sick with all the symptoms... Since there is no testing, there is, de facto, no COVID here so they probably let it just rip through. "    Indeed, they will.         

Biden AWOL on Sentence Reform, But Clemency Appointment is a Step Forward

 

Biden Appoints New Pardon Attorney;  COVID Again Hits Federal Prison System; Opponents of Sentence Reform Fight Back, but Durbin and Grassley Stand Firm; Medium Pattern Scorers Have Legal Alternatives;  

by Derek Gilna 

            President Biden has appointed a new federal pardon attorney, who will oversee all pending Pardon and Clemency petitions. She is Elizabeth (Liz) G. Oyer, who before her Justice Department appointment,  according to DOJ,   served as "Senior Litigation Counsel to the Office of the Federal Public Defender for Maryland, where she represented indigent defendants at all stages of proceedings in federal district court [and] handled a wide variety of criminal cases, ranging from complex fraud to drug and gun offenses, as well as violent crimes."  This is an important development and may mean that we may start seeing some action shortly on the 18,000 pending petitions.  

            Currently pending in Congress is the FIX Clemency Act, which seeks a nine-person board that would be responsible for reviewing petitions for clemency and issuing recommendations directly to the president. The recommendations would also be made public in an annual report to Congress. At least one member of the panel would be someone who was previously incarcerated.

            Unfortunately, no sooner has OMICRON passed through the federal system than the BA.2 variant has now caused the transfer of several prisons back into Red status, which means masks, and more lockdowns. Coleman, Marianna, Carswell,   FMC Rochester, and Cumberland  have reported  numbers of active cases (From Cumberland: " FCI Cumberland had 71+ Covid-19 positive inmates and staff (6 staff) when I left a week ago on a transfer. Most all units were on lockdown.") The virus is present everywhere, but DOJ has had two years to perfect its COVID concealment skills, so true numbers will probably never be reported.    Unfortunately, much as the non-partisan Marshall Project stopped reported DOJ COVID numbers because of clear inaccuracies several months ago, the UCLA COVID Reporting Project, which has tracked correctional response to the virus for the past two years, also gave DOJ a failing grade,  for Overall Response, F, Data Quality, F, Reporting for Incarcerated People, F, and Reporting for Staff, F. https://uclacovidbehindbars.org/blog/march22scorecard, 4-18-22.

            Opponents of pending sentence reform bills are fighting back, much as they did prior to the passage of First Step (FSA) , but their recent outbursts are more a  sign of weakness than strength (same thing happened prior to passage of FSA). All of the pending bills have strong bipartisan support, and most  appear to have the votes to pass but must be called for a vote.    Biden and some Democrats are nervous about calling for the vote prior to the election, but after the election, chances of passage increase.  Remember that FSA also passed in 2018 AFTER the Congressional elections.

            The First Step Implementation Act, sponsored by Sen. Chuck Grassley, R-Iowa, seeks to correct an oversight in the original FSA. In passing First Step  in 2018, Congress affirmed that some mandatory minimums for drug offenses and “stacking” of charges were unjust and resulted in sentences that do not advance public safety. The Safer Detention Act would provide ill and elderly people in prison a vital path to release or home confinement, and would cover those convicted prior to 1987.  The Prohibiting Punishment for Acquitted Conduct Act would prohibit judges from considering information regarding acquitted acts during sentencing — an important protection against government overreach. 

            I have received dozens of questions similar to this one: " the question that every one in here would like to know is can the people with a high recidivism (get)  F.S.A time credit and get the 10 days off for every 30 days of programming...case managers here told us that people with a  high recidivism can't- they would have to go down to a low but I never read anything saying that..." Precisely, because there is NOTHING in FSA that prohibits you from getting those credits.   This also could be challenged in court, but I would definitely exhaust remedies on this before you make the attempt, and you should be within two years of release OR near 50% of time served (for CARES consideration) if you are contemplating this action. 

EQUAL Act Moves Closer to a Vote, Mental Health Issues As Grounds for Compassionate Release

 

Former Public Defender Ketanji Brown Jackson Confirmed as Supreme Court Justice; Signs Point to Early Vote on EQUAL, As  Pressure Also Grows for Marijuana Legalization; Optimism Increases for  Other Reform Bills;  Mental Health Issues as a Reason for Compassionate Release; Appellate and COVID Updates 

by Derek Gilna 

            The aggressive  and often misleading confirmation hearing questioning of now Justice Ketanji Brown Jackson by certain Republican senators showed  that some of our elected representatives (and the public) need to learn more about the seamy reality of the current  "justice " system.  Justice Ketanji-Brown', with her education, dedicated public service,  as well as her obvious dignity, humility, and experience as a public defender, is just the person to educate them.  

            In Congress, pressure is building for votes on one or more of the pending justice reform bills. The COVID-19 fiasco in federal prison exposed to the public (and more importantly, Congress) the breathtakingly-inept and mismanaged system that wastes hundred of millions of dollars,  causes unnecessary misery, and sometimes even  death. Congress (and the courts) realize that DOJ is in denial that First Step is the law of the land, and that provisions like the programming and employment sentencing credits MUST be applied in a timely fashion. The pass of EQUAL and other pending legislation will be a good start to show them the error of their ways. We can assist you in taking advantage of these sentence-shortening opportunities.

            There is also new optimism that perhaps at least some provisions of the MORE Act can be passed in this session. More states are either legalizing recreational usage, and the public clearly is in favor of full legalization. If the bipartisan justice coalition that came together to pass First Step again comes together, led by Senators Durbin and Grassley, it bodes well for passage of the other pending bills..

            Mental health issues, even in the absence of other serious medical issues, have been found to be grounds for compassionate release. See: United States v. Rodriguez, 2020 WL 4592833, at *1 (S.D. Cal. Aug. 5, 2020), for a prisoner at FCI Victorville Medium II, serving an 86-month sentence, serving since 2017 (32 months), who was non-violent, with “32 months in custody… is far more time than she has ever served before and will likely act as a deterrent.” The decision cited prison conditions of prison, the mental health consequences of continued incarceration in the midst of a global pandemic that  place further stress on the body and immune system, and stated that,  “Major depressive disorder, or clinical depression, causes stress, which impairs the immune system against viral infections, such as COVID-19.” Courts have found mental health conditions to contribute to extraordinary and compelling reasons warranting compassionate release. See, e.g., United States v. Lavy, 2020 WL 3218110, at *5 (D. Kan. June 15, 2020) (finding associations between major depressive disorder and “atypical immune responses”); United States v. Johnson, ––– F. Supp. 3d ––––, ––––, 2020 WL 3041923, at *10 (D.D.C. May 16, 2020) (finding extraordinary and compelling the movant’s PTSD combined with his physical illness).

            In United States v. Gudino, 2020 WL 7319432, at *1 (N.D. Cal. Dec. 11, 2020)defendant was sentenced to 140 months,  served 78 months, and was 44 years old, obese, and suffered from shortness of breath, tuberculosis, and anxiety. The government agreed that “[p]ersons suffering from mental health and anxiety have been identified by the World Health Organization as standing a higher risk of severe infection and even death from COVID-19.” Id.

            In United States v. Lavy, 2020 WL 3218110, at *1 (D. Kan. June 15, 2020). The prisoner at Forrest City Low FCI, had Bipolar, depression, hypertension, and was 58 years old. “But the CDC has not yet determined whether hypertension alone renders an individual particularly vulnerable to severe illness stemming from COVID-19. The Court therefore considers Defendant’s age and hypertension in connection with his two mental health diagnoses, bipolar disorder and major depressive disorder.” The Court found that there is scientific support linking bipolar disorder and immune system dysfunction. And there is at least some indication that a substantial subset of individuals with major depressive disorder and bipolar disorder exhibit atypical immune responses. Michael Maes & Andre F. Carvalho, The Compensatory Immune-Regulatory Reflex System (CIRS) in Depression and Bipolar Disorder, 55 MOLECULAR NEUROBIOLOGY 8885 (2018)Joshua D. Rosenblat & Roger S. McIntyre, Bipolar Disorder and Immune Dysfunction: Epidemiological Findings, Proposed Pathophysiology and Clinical Implications, NAT’L INST. OF HEALTH (Oct. 30, 2017), https://doi.org/10.3390/brainsci7110144.

            The issue of compassionate release becomes even more critical for those thousands of prisoners in all institutions whose routine medical care and outside testing is STILL being delayed by the excuse of COVID. Word from Pekin that a woman who complained repeatedly of heart issues succumbed this past week, and unfortunately, I am afraid that she won't be the last.

BOP Continues Slowdown on FSA Credits; ACCA in the Spotlight as Supreme Court Grants Remands in Three New "Wooden" Cases

 

Equal Act Awaits a Senate Vote; House Passes Marijuana Bill, Senate Vote Next; FSA Credits Still Inexcusably Delayed; Some Hard Truths About the Prison Bureaucracy: Additional Support for "Acquitted Conduct" bill;  COVID, Appellate Updates

 

by Derek Gilna

 

            The recent Wooden case, which saw the U.S. Supreme Court again chip away at draconian ACCA punishments, resulted in three  litigants who recently filed petitions for cert before the court on Wooden facts being granted summary relief. The high court granted cert, reversed,  and then remanded  to the lower courts for resentencing: "20-7617, LEWIS, WILLIE L. V. UNITED STATES; 20-7798  WILLIAMS, CHRISTOPHER V. UNITED STATES; 21-6448 BROWN, JOSEPH D. V. UNITED STATES." If you have not already contacted me about whether your factual situation qualifies for possible Wooden relief, now would be a good time.  

            Last week the EQUAL Act, which passed the House last year, won its 60th co-sponsor, which in practical terms means that it only requires the Senate Majority leader, democrat Chuck Schumer, to call it for a vote. Almost one in twenty federal prisoners would benefit from this legislation when it becomes law.    According to the U.S.  Sentencing Commission, "  approximately 827 (new) offenders each year would benefit from this section of the bill. The current average sentence ... is 74 months. The estimated new sentence for those offenders would be 43 months. Retroactive Impact: Approximately 7,787 offenders ...would be eligible to seek a modification of their sentence based on this section of the bill...up to 7,644 offenders would receive a reduction in their sentence. The current average sentence for these offenders is 173 months. The estimated new sentence for these offenders would be 100 months."  Once again, a well-drafted motion will help unlock this relief when the bill becomes law.

          By a narrow vote of 220-204, the House of Representatives on Friday passed the Marijuana Opportunity Reinvestment and Expungement Act (MORE), a measure that decriminalizes marijuana under federal law. Almost all Democrats supported the legislation, but almost all Republicans opposed it.  It is not expected to pass an evenly-divided Senate. Of course, that's what was originally said about FSA, and more recently the EQUAL Act, so stay tuned.

            Although bipartisan action on FSA and EQUAL is encouraging, the contentious  partisan divide on MORE and during  soon-to-be-justice Brown's high court confirmation hearings, that focused on spurious criticism on her relatively mainstream views on below-guidelines sentencing on  most non-contact SO offense, more work remains to be done.

            While Congress is focused on those hearings, and the war in Ukraine, DOJ is busying itself with devising even more delays in executing Congress' clear mandate to give people incentives to leave prison and not come back. Make no mistake: Congress is completely fed up with DOJ and its subordinate agency mismanaging the federal prison system, and is waiting for the appropriate moment to show its displeasure. With the resignation of its director (who continues in the job until a successor with a lot of patience is found), regional offices and wardens are taking the opportunity to pump the brakes on reforms that are already law. For those of you who fear taking judicial action because "my counselor/case manager might get mad at me," I say: you are already in prison, and the outside world, (with millions of jobs available), and your family beckon.

Unfortunately, although there are some good people, good is a relative term, and the bureaucratic culture grinds them down.  Remember, truth is in very short supply when  even "good" staff discuss any of these reforms that might reduce the number of customers that ensure their continued employment and accruing pension balance.

There is absolutely no evidence in any prison that DOJ is ready for the next COVID wave, or a solution to its many obsolete and decaying facilities.   Regardless of the severity of this "next wave,"  there is no "Action Plan" on the horizon to deal with it. There is already an outbreak of a form of virus in the men's prison at Seagoville, and the women's facility in Pekin, that often results in a rash, shortness of breath, and increased infections.        Rom the Baltimore Sun: "To comport with constitutional requirements and respect the role of juries, Congress should require aggravating factors that would put a sentence above a guidelines range to be found by a jury beyond a reasonable doubt, and should preclude judges from enhancing a sentence for conduct that a jury acquitted the defendant of committing. And Congress should harmonize the long list of factors that judges are to consider at sentencing, factors that often conflict and that frankly can be used by a judge to rationalize almost any sentencing utcome."https://www.baltimoresun.com/opinion/op-ed/bs-ed-op-0328-sentencing-guidelines-jackson-20220325.                 Add to the growing list of vaccine problems a newly-released studies that shows that the COVID vaccines can cause serious side effects.: "Using the PULS cardiac test, researchers have found Pfizer and Moderna mRNA COVID shots dramatically increase biomarkers associated with thrombosis, cardiomyopathies and other vascular events following vaccination  Pre- and post-injection PULS tests for 566 patients were compared. On average, their PULS scores went from an 11% five-year risk for acute coronary syndrome, to a more than double, 25%, five-year risk...We conclude that the mRNA vaccines dramatically increase inflammation on the endothelium and T cell infiltration of cardiac muscle and may account for the observations of increased thrombosis, cardiomyopathies, and other vascular events following vaccination.” ~ Circulation Magazine,  November 16, 2021.                               In US v. Burris, 19-6122, (10th Cir. 3-20-22), In 2004, Defendant-appellant Tony Burris pleaded guilty to possession with intent to distribute crack cocaine, and the district court sentenced him to 262 months in prison, the low end of his sentencing range under the United States Sentencing Guidelines. After Congress passed the Fair Sentencing Act of 2010, which addressed sentencing disparities between crack and powder cocaine, and made those changes retroactive in the First Step Act of 2018, Burris moved for a reduced sentence. The government opposed the motion, arguing that Burris’s Guidelines range remained the same because the calculation should have been based on the larger quantity of crack cocaine attributed to Burris in the Presentence Investigation Report (PSR) rather than the smaller amount charged in the indictment. Recognizing that the parties raised an issue that had not yet been addressed by the Tenth Circuit, the district court declined to resolve it, instead exercising its discretion to deny relief regardless of the correct Guidelines calculation. The Tenth Circuit held the district court was obligated to calculate Burris’s revised Guidelines range before exercising its discretion to deny relief, and that the error was not harmless. Judgment was therefore reversed and the matter remanded for further proceedings.            In US v. Kirilyuk, 19-10447, (9th Cir., 4-1-22), Defendant was convicted of 28 felony offenses in connection with a fraud conspiracy involving 120,000 American Express Cards. In sentencing Defendant to 27 years’ imprisonment, the district court relied in part on Application Note 3(F)(i) to U.S.S.G. Sec. 2B1.1 (“the Application Note”), which provides that the “loss” amount for the use of counterfeit credit cards must at least $500 per credit card used. Using this multiplier, the district court applied a 22-level enhancement.  The Ninth Circuit vacated Defendant’s sentence. Under Stinson v. United States, 508 U.S. 36 (1993), an Application Note is authoritative unless it is “inconsistent with, or a plainly erroneous reading of, that guideline.” Thus, if an Application Note conflicts with the Guidelines, the Guidelines must be given effect over the Application Note. Defendant’s fraud scheme involved charging $15 to $30 per card, resulting in actual losses of $1.4 million. However, the use of the Application Note calculated the loss amount to be $60 million. Here, the Ninth Circuit found that the Application Note’s multiplier rule does not comport with the plain meaning of “loss,” and thus, Defendant’s 22-level enhancement based on the calculated $60 million loss cannot stand. The Ninth Circuit also found that the district court erred in sentencing Defendant to 264 months for each wire and mail fraud count when the maximum statutory penalty was 240 months.   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."