Sentence Reform Movement Gains Momentum

Mood in Washington: Shift in Favor of Sentencing Reform Continues to Accelerate

by Derek Gilna

            After a few days in our nation's capital, I can report that criminal sentencing reform is still gathering strength.   There are virtually no elected representatives (not named Senator Tom Cotton) who are willing to be quoted as being in favor of longer sentences, and often appear in competition to be more supportive of the concept.

            The reason is quite simple: there is no longer any political danger in being labeled

"Soft on Crime." As a result, there is nothing in the budget for new guards, new prisons, or anything else that would drive an increase the prisoner counts. Expect the federal counts to drop further.

            All of the "action" (money) is now in the recidivism and rehabilitation areas, and this can only help lower prisoner counts and reduce returns to prison on technical violations. In the feds, "follow the money" to see what policy is now in favor. The new battles in Congress will be to see who gets their share of the pie in the new system. The President clearly supports criminal reform, and there is not one Democratic candidate who has not come out for even more reform, trying to "out-reform" the President.

            The new emphasis on restorative justice means that radical changes to the argument that harsh punishment is always appropriate are on the way., including a change to the pardoning process. There will be immense pressure to release older and sick prisoners, and lawsuits will further accelerate this process.

            One of the initiatives being discussed involved letting the jury known the potential sentence if they find someone guilty:www.prosecutorialaccountability.com, argues that this is an idea that would turn federal criminal justice upside down.

            In the U.S. Supreme Court case of McDonough v. Smith, the court is considering the allowing of more time for prisoners to file a claim based upon police or prosecutor fabricated evidence, as well as recognize that this is a "rampant problem. 18-485, argued 4-17-19.

            In US v. Winbush, 17-7148, (4th Cir. 4-23-19), the court reversed and remanded a denied 2255 habeas petition brought for failure to challenge an incorrect designation as a career offender (CO).    The district court erred by permitting the substitution of a previously unidentified conviction to sustain the CO designation. In US v Copeland, 17-5125, (10th Cir. 4-23-19), the court reversed an ACCA enhanced sentence, finding that defendant proved that the district court relied on the now-overturned residual clause when it initially sentenced.

Upcoming Davis Opinion in Supreme Court Will Extend "Void for Vagueness" Arguments

by Derek Gilna

            As we reported last week, the U.S. Supreme Court (SC) heard oral arguments in Davis this past Wednesday, and although an opinion will not be issued for several weeks, the Justices appear poised to strengthen the "void for vagueness" argument that could help post-conviction petitions. I listened to most of the proceedings, and it was clear that the SC was not impressed by the government's weak argument that if 924c is set aside, other statutes will also fall (which would be a good thing for those reading this newsletter,) and appears ready to issue a prisoner-friendly ruling.

            The SC also heard argument this week on the US v. Haymond SO case, which would limit judge's ability to sentence individuals found to have violated their terms of release without a jury deciding the case. Conservative justice Gorsuch said that this clearly violates the 6th Amendment right to a jury trial, and a majority of justices appeared to agree.

            This case again highlights that the most important actor in federal criminal justice system is not the judge, but the prosecutor. A federal criminal indictment brought by the prosecutor results in a guilty verdict or guilty plea over 90% of the time, and DOJ annual statistics show that in some circuits NOT ONE defendant was found not guilty after  trial.

            In the circuits, the Fourth Circuit has held that a prior conviction in the USDC for the ED of North Carolina for conspiracy to distribute and possess with intent to distribute cocaine base (did) not constitute controlled substance offenses for career offender purpose," and remanded for resentencing.  US v. Whitley, 17-4343, (4th Cir. 6-12-19).

The decision focused on the "conspiracy" aspect of the case, since no drugs were seized.

            In the 8th Circuit, the court reversed and remanded denial of a 2255 petition, finding that counsel was ineffective by misadvising him about the immigration consequence of his guilty plea. Dat v. US. 17-3652, (4-11-19). In the 9th Circuit, the court held that habeas relief must be granted, holding that "counsel performed ineffectively by not properly investigating (defendant's) background, and as a result, the trial court was not presented with substantial mitigation evidence regarding...education and incarceration, his diffuse brain damage and ... history of substance abuse." Washington v. Ryan, 05-99009, (9th Cir. 4-17-19).

            In US v. Jones, the court reversed and remanded a case where a Native American who pleaded guilty to child abuse for diving on a reservation while intoxicated with his minor son in the car in tribal court, but was re-indicted in federal court.   That court miscalculated his sentence, and must now resentence him. 18-2129, (10th Cir. 4-16-19).

            We look forward to assisting you with giving you the information to obtain sentence relief and release under the new provisions of the First Step Act, as well as keeping your outside family and friends apprised of new developments that might help your case.

Federal Legal Center, Inc.

Derek A. Gilna, JD, Director

113 McHenry Rd., #173

Buffalo Grove, IL   60089

federallc@yahoo.com

First Step Act Update

FIRST STEP Act to Be Near Top of Legislative "To Do" List After Elections

by Derek Gilna

            As America struggles in the aftermath of recent acts of terror and senseless violence, the US Senate can make a strong statement after the divisive mid-term elections a week from Tuesday by passing the FIRST STEP Act. The House already has passed this bill, but to become law, the Senate must do the same.   The President has said that he supports and will sign the legislation, which would then take effect.

            As we have previously noted, the current attorney general (who opposes the bill) should be gone by the first of the year, and most Republican Senators, perhaps as many as 32, support the  bill in its current form. NO Democratic Senators are on record as opposing it, meaning it could have well over 75 "yes" votes. Surveys show over two-thirds of Americans support sentence relief.

            Although we have received many questions as to who would be affected by the legislation, we caution that the final language of the bill has yet to be determined, but broadly speaking, all but the most violent would immediately benefit. The bill exempts several categories of prisoners from earning more credits, including convicted murderers, terrorists and spies, as well as the undocumented..

            The bill would allocate $250 million over five years for the DOJ to develop risk assessment tools to figure out what inmates need, and to create programs tailored to those needs. The new system would run on incentives, offering inmates extra credits against their release dates if they participate in the programs and have good conduct. The bill would also increase the maximum amount of credits an inmate could earn per year behind bars, from 47 days to 54 days, and applies that change RETROACTIVELY, meaning some prisoners would be eligible for early release immediately.

            As we have reported here, the federal HW system, not to mention the broader prison system, is severely mismanaged and underperforming considering the amount of funding it receives.   Look for many private and religious entities to take over the DOJ's job in providing quality education and meaningful job training and reentry programs.

            In the circuits,  we apologize for not giving the cite on the 9th Circuit stash-house case, which was US v. Sellers, 16-50061, (9th Cir. 10-15-18). Also in the 9th Circuit, the Berkeley, California school of law has filed a federal lawsuit against the DOJ, alleging that "Federal monitoring of email message makes it excessively difficult for inmates to communicate confidentially with their lawyers." Needless to say, I have a personal interest in this matter.

            Finally, we continue to look forward to discussing with you any potential relief that might be obtained under Johnson and Dimaya, or to assert inadequate representation of counsel in a 2255 petition for those whose direct appeal was recently denied. There is no charge for this review.

Federal Legal Center, Inc.

Derek A. Gilna, JD, Director

113 McHenry Rd. #173

Buffalo Grove, IL   60089

federallc@yahoo.com

(847) 878-0160

Dimaya Circuit Split:

Supreme Court ACCA Cases Should Help Resolve Dimaya Circuit Split: More News

by Derek Gilna

            The U.S. Supreme Court (SC) will consider the case of Haight v. US, out of the DC circuit, which asks whether a criminal offense with a reckless "mens rea" qualifies as a "violent felony" under the ACCA. "Mens rea" refers to what is commonly referred to as a "guilty mind," thought as a necessity for one to be found guilty of a crime, but watered-down by the US  Sentencing Commission and Congress, vastly increasing convictions.

            This case arrives at the perfect time, since the 11th Circuit narrowed Dimaya relief in the recent Ovalles case, and the Sessions Justice Department has made similar arguments in the 2nd and 4th Circuits. Haight is an opportunity for the SC to force the circuits to get in line with its obvious distaste for expansive ACCA sentencing.

            Interestingly, the arrival of two "originalist" conservatives to the SC, Gorsuch and Kavanaugh,  (referring to those who feel that the US Constitution does not bend with the times but must be given its original meaning) actually works in defendants' favor in these ACCA cases, and it hoped that that will be the case here. In fact, it is the more conservative groups, such as the Justice Action Network, who are busy rounding up votes for First Step. That group is no fan of soon-to-be gone Sessions, and his embattled deputy, Rod Rosenstein. Remember, nothing will be voted on until AFTER the November election.

            The First Circuit, in rejecting an application for leave to filed a second 2255 under Johnson and Dimaya, highlighted the importance of the facts of the individual case in getting relief under those cases, narrowing its holding to distinguish the case of Elaine Brown from most other situations because of the extreme circumstances (accumulation of large quantities of explosives combined with a credible threat to detonate them), as well as noting that  Johnson was never intended to apply to "pending" charges, rather than older ones. The court said that there was no question that Brown was engaged in a crime of extreme violence. Johnson and Dimaya refer to PRIOR convictions, not current ones the court said.   If anything, this court solidified Johnson and Dimaya's application.  Brown v US, 16-1293, (1st Cir. 10-12-18).

            Finally, the Ninth Circuit has held in a reverse sting case that "a defendant need not proffer  evidence that similarly-situated individuals of a different race were not investigated or arrested to receive discovery on a selective enforcement claim like the defendant's." The court permitted discovery on this limited issue, and remanded the case to the district court for the discovery to take place.

            We look forward to discussing with you any potential relief that might be obtained under Johnson and Dimaya, or to assert inadequate representation of counsel in a 2255 petition for those whose direct appeal was recently denied. Also, not a bad idea to pass along your outside contact's email address, so that they might receive the same news that you do.

Federal Legal Center, Inc.

Derek A. Gilna, JD, Director

113 McHenry Rd. #173

Buffalo Grove, IL   60089

dgilna1948@yahoo.com

(847) 878-0160

Comey Hearings Show the Public that Federal Government Only Serves Itself, Not Them

Now the Public Has a Clearer Picture of How the Federal Government Only Serves Itself


 No new opinions issued by the U.S. Supreme Court this morning, but there should be several in the next two weeks.  However, was anyone even remotely capable of turning away from the over-hyped Congressional testimony this past week of the former "Top Law Enforcement Officer of the United States?" Turns out that he was just another "CI," who leaked information (or made stuff up) in hopes of improving his circumstances (or reducing his sentence). 

Although the media circus was allegedly about the President and his administration, it was the disingenuous nature of the American justice system that was actually publicly "unmasked."  Add this development to the general public's growing unease with the narrative that "we're from the government, and we're here to help you."
 
Make no mistake, the DOJ and BOP are an integral part of the "Deep State." If you believe in the maxim, "the enemy of my enemy is my friend," the current administration's disruptive attack on the federal  bureaucracy is cause for guarded optimism. It will be interesting to see where this goes.
 The other consequence of this turmoil in Washington is the new-found assertiveness of the federal judiciary, who have been looking for ways to assert their independence of the DOJ and the executive branch. In this new atmosphere, there is hope that the Chevron case, which granted broad judicial deference to federal agency (i.e., BOP) rulemaking powers, will finally be revisited.  This would be huge, as lawsuits on matters such as substandard medical care and compassionate release would not face the current high threshold for success.

In the circuits,  there were some interesting cases the past week.  In U.S. v. Zuniga, the defendant overcame a Beckles defense to his sentence, successfully arguing "that his prior Texas conviction for delivery of a controlled substance cannot serve as a predicate offense for purposes of Section 4.B1.1's enhancement," and reversing and remanding his conviction, following Hinkle, Decamps and Mathis. (14-11302, June 5, 2017).

In a follow-up to the 7th Circuit stash-house sting cases, the 7th rejected a 2255 habeas alleging inadequate representation of counsel where defense counsel failed to raise an entrapment defense. Unlike the case of his co-defendant Mayfield, 771 F.3d at 424, n. 3, Nathan Ward lost his direct appeal, and was left with only the habeas to contest his guilt. Ward v. U.S, 15-2599, June 5, 2017.

Supreme Court Updates

Supreme Court Continues to Extend "Vagueness" Doctrine; Appellate Updates

 

            The U.S. Supreme Court this morning again extended the breadth of Johnson vagueness doctrine by extending it to three cases where defendants received career-offender status for what amounted to consensual sexual relations with barely-underage minors. The original 2017 SC holding, Esquival-Quintana v. Sessions, which rejected the application of such incidents involving minors 16 and over, was a convincing 8-0 decision. Three cases from the Fifth and Sixth Circuits, were summarily vacated and remanded for resentencing.

            We are also following and considering the application of an interesting case out of Oklahoma, U.S. v Jeffrey Dan Williams, 97cr171,brought to our attention by one of our readers. In this case, compelling new evidence casting doubt upon the veracity of law enforcement and CI testimony against Williams brought about the granting of a second-successive 2255. Williams, who did not dispute his guilt in a drug case he said involved 37 grams but always contested the amplification of his drug quantity that resulted in a 35-year sentence, argued that U.S. v. Blackwell, 127 F.3d 947, and its progeny applied to redress unfairly obtained indictments and guilty, resulting fundamental miscarriages of justice that amounted to fraud upon the court. We are currently reviewing several of our cases to apply the reasoning of this case.

            In his decision vacating the judgment and sentence and dismissing the indictments, Judge James H. Payne noted that "the court finds it has the inherent power and jurisdiction to grant relief." and that the fraud upon the court harmed the "integrity of the judicial process."

            This follows on the heels of the scandal in Kansas City, Kansas federal court, involving the  admitted recording of confidential communications between unconvicted defendants and their attorneys, that has now resulted in the resignation (or dismissal) of two assistant federal prosecutors caught up in the scheme.

            In the circuits, the Ninth Circuit ruled that there is no right to file a 2255 alleging ineffective assistance of counsel in a Section 3582(c)(2) sentence reduction matter, since the Supreme Court ruled in the Dillon case that such proceedings did not constitute a sentence reduction. Sherrod v. U.S., 16-72178, (9th Cir., May 24, 2017).

 

Johnson Case Doctrine Extended to Fifth Circuit Texas Case of US v Tanksley

Fifth Circuit Tanksley Decision Another Johnson-Based Reversal of Texas Drug Offense

 

            Appellant Dantana Tanksley pled guilty to felony drug possession, and at sentence was advised that his previous Texas drug conviction qualified as a "controlled substance offense" under US Sentencing Commissions Guidelines. Previous Texas law had held that his prior qualified under the guidelines.

            However, Mathis v. US changed the law, and the court held that the underlying Texas drug delivery statute, 481.112(a) was divisible., defining two crimes: possession with intent to deliver (which qualified for the enhancement under the Guidelines, ), and mere delivery, which did not.  Mathis held that this approach was proper only when the statute list element in the alternative. "Mathis is 'more than merely illuminating with respect to the case before us,' it unequivocally resolves the question in favor of Tanksley,'" the Fifth Circuit said.

            The case also rejected the government's fall-back defense of "harmless error," ruling that nothing the district court said substantiated that defense, and the Fifth Circuit refused to bail out the government. The court reversed the sentence and remanded for resentencing.

            This particular case is yet another in the line of Johnson-related cases that have granted prisoner relief.