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.
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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."
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