First Step Act Implementation Slow, but Steady

First Step Act Implementation Slow, but Steady, but Courts Ready to Help Ensure Compliance

by Derek Gilna

            The passage of the First Step Act (FSA) of 2018 was supposed to be a game-changer, and for some, that has been true.   However, despite Congress' and the President's stated intentions, the unelected criminal justice bureaucracy has done everything in its considerable power to water-down the benefits for the confined. Career prosecutors continue to file objections to compassionate release requests and sentence reduction petitions, but the courts have generally sided with Petitioners.   Public defender offices have been granted no additional funds or personnel to review cases and push your cases forwards, which means that you are generally on your own.

            Although several bills have already been introduced in the 116th Congress proposing additional reforms, the House and Senate Judiciary Committees are focused on overseeing implementation of FSA before turning to new and possibly more controversial changes. The new Prisoner Assessment Tool Targeting Estimated Risks and Needs (PATTERN) will not apparently be ready until the first of the year, and there is a lot of misinformation about who does and does not qualify. Contrary to rumors, violence in your background, unless it falls into certain discrete categories, does not automatically prevent you from receiving sentence credit from completing programming.

            Although there were no new cases heard or decided in the U.S. Supreme Court, the circuits were busy.  In the 9th, in US v. Ridgill, 19-50128, the court affirmed the controlled-substances conviction but reversed and remanded for resentencing, by finding that the district court's finding of drug quantify was contrary to the preponderance of the evidence standard, and the sentencing factor had "an extremely disproportionate effect on the sentence relative to the offense of conviction."

            In the 2d Circuit, in the case of US v Tanner, 18-3598 (consol.) 10-31-19, the conviction was affirmed, but the court again faulted the "methodology to determine the victim's actual loss," and that "the District Court erred in ordering the defendants to forfeit more than the amount of their criminal proceeds."

            In the 8th Circuit, in US v. Sterling, 18-2974, 11-1-19, the court ruled that "the government "failed to prove estimated drug quantity about base offense level 24, with information that 'has sufficient indicia of reliability to support its probably accuracy,'"

and remanded for resentencing.

            Finally, in US v Rabb, 18-1678, 10-30-19, the court reversed and remanded a fentanyl and cocaine case for resentencing, finding that his NY conviction for second-degree robbery did not qualify as a predicate for CO purposes, and invoked the SCOTUS Stokeling opinion that non-aggravated robbery did not qualify.

Department of Justice Slow in Implementation of First Step Act

DOJ "Slow Walking" Congress' Mandate to Fully Implement FSA; SCOTUS Updates

by Derek Gilna

            We applaud the news of yet another Presidential pardon, of Momulu Stewart, who was freed after two decades in prison, with the efforts of Kim Kardashian and the Georgetown Law School. The U.S. Supreme Court (SCOTUS), will consider Levert v. U.S., and Ziglar v. U.S. In Levert, the question is "whether, or under what circumstances, a criminal defendant pursuing a second or successive motion under 28 U.S.C. § 2255 is entitled to relief under a retroactive constitutional decision invalidating a federal statutory provision, when the record is silent as to whether the district court based its original judgment on that provision or another provision of the same statute."

            In Ziglar, the question is whether the court of appeals correctly affirmed the denial of Joe Ziglar’s motion to vacate his sentence based on Johnson v. United States, when the district court found that Ziglar had failed to show that he was sentenced under the residual clause of the Armed Career Criminal Act of 1984, which was invalidated in Johnson, as opposed to the ACCA’s still-valid enumerated-offenses clause."

            These cases have broad implications for pending and future petitions, although most courst considering the question thus far have ruled that if district courts were silent on the residual clause issue during sentencing, it is presumed that the void residual clause was the basis for the conviction. Given this court's hostility to overbroad construction of penal statutes, our opinion is that the government will lose in both cases.

            SCOTUS, as noted in the Gundy decision, has shown continued hostility to overbroad, punishment-increasing actions by both federal district courts, and especially by federal administrative agencies, of sentencing laws, and rules implementing clear Congressional mandates. This brings us to DOJ's hostility to the new FSA, manifesting itself in frivolous objections to sentence relief, and arbitrary and capricious denial of compassionate release (Nothing new here). Unfortunately, prisoners can expect only limited help from PDs in these matters, as their resources are stretched to the breaking point, which is why those of you with FSA relief coming have heard little from them.

            In the circuits, In U.S. v. De La Torre, 18-2009 (consol.), (7th Cir. 10-10-19), the court vacated and remanded defendants Chapman and Rush's 841 convictions, Based upon the finding that their Indiana and Illinois prior drug convictions did not qualify as predicate offenses, most notably finding "plain error." This case has important , positive implications for those of you with drug priors in both states.

            In the Eighth circuit, the holding of U.S. Hollingshead had both positive and negative implications.  He was charged with 922f1 and 924a2 offenses), and although his conviction was affirmed, the imposition of domestic violence and anger management treats as conditions of supervised release was stricken, based upon his timely objection to findings in his PSR/PSI (possible implications for your future 2255 filings). However, the court distinguished (and rejected) his Rehaif argument, since he was already a convicted felon, citing US v Benamar, 17-50308, (9th Cir. 9-5-19), under "plain error."

First Step Act Updates: How to Get Relief

How to Unlock the Benefits of the First Step Act; Supreme Court and District Updates

by Derek Gilna

            The First Step Act (FSA) of 2018 has opened the door for federal courts to play a stronger role in possible sentence relief, but only if you are able to successfully navigate the process.   The good news for FSA is that the government is often  put on the defensive and forced to present frivolous arguments in the face of clear Congressional intent to shorten sentences for those eligible and to grant relief to elderly and ill prisoners, in a widely expanded compassionate release process.

            Almost 10 months have elapsed since the passage of FSA, and the DOJ and federal prison system are still not giving out correct information to prisoners and not following its own program statements that tracks the statute. "The form is not available," or, "Your facts make your ineligible," are often the response.    Public defender offices, inundated with applications for new Crack law petitions, are in no position to assist.

            The fact is that courts on only get involved based upon the facts placed before them, and that means getting back into court.    You are already aware that 2255 habeas petitions, both "original,"   filed within one year after your direct appeal is decided, or a "second-successive," when new statutes (like FSA), new case law, or new facts not previously available or applicable arise, are valuable tools, but only if you use them correctly. The majority of courts have found FSA contains language that permits sentencing courts to consider post-conviction rehabilitation, and can order a complete resentencing.

            In the US Supreme Court, (SCOTUS),  Paul v US, 17-8830, attacks the DOJ's authority to promulgate SO regulations violates the constitutional nondelegation doctrine, and current SCOTUS hostility to the administrative state makes this a case to watch. The 7th Circuit heard arguments in the US v Atwood case in late September, which involved his career-offender designation. The same circuit's 10-10-19 decision in De La Torre, following its 2018 Elwood decision, bodes well for Mr. Atwood's success.

            As promised, we revisit the so-called "stash-house" cases, specifically the US v Mayfield decision, 11-2439, (7th Cir. 2014), which resulted in his release for "time-served."  This  followed his guilty plea to a face-saving superseding indictment, negotiated by the U of C law clinic, which also terminated his supervised release. Sadly, his success was not replicated by the majority of similar fact situations, but at least forced these types of entrapments being abandoned  by police after federal judges voiced their opposition. to the practice.

            In US v. Bishop, 17-15471, 10-11-19, the government-friendly 11th Circuit affirmed a conviction on other grounds, but remanded based upon the district court's erroneous application of a 4-leel enhancement under 2K21b6b, for possessing a firearm  in connection with another felony offense. In an interesting result, in Webb v. Davis 17-51143, (5th Cir. 10-16-18), the court also affirmed a state habeas petition based upon the appeal waiver, but ruled that a 60b CAN be available if a second-successive 2255 is not possible.

Shular Case Takes Center Stage as Supreme Court Begins New Term.

First Step Act Updates

by Derek Gilna

            The matter of Eddie Shular v United States continues to wind its way through the

US Supreme Court (SCOTUS), with amicus briefs in supports recently filed by the National Association of Criminal Defense Attorneys (NACDL) and FAMM.  Shular pleaded guilty to charges of possession of a firearm by a convicted felon and to controlled substances possession, and was classified as an armed career criminal because of six previous drug convictions in Florida. He objected to the classification in court, arguing his previous convictions were not "serious drug offenses" under the Armed Career Criminal Act (ACCA.)  After  by  11th Circuit affirmed , he filed with SCOTUS.

            NACDL's amicus group noted that the case is ripe for adjudication since the circuits do not agree on whether the categorical approach should control ACCA prosecutions of serious drug crimes: "Although this Court has repeatedly affirmed that the categorical approach applies to ACCA’s 'violent felonies' provision, it has not squarely addressed whether it applies to “serious drug offenses.” But there is no textual, policy, or other reason to treat this provision differently from other predicate offenses." A positive outcome would have major ratifications on thousands in the federal system.  No date has yet been set for argument of this case.

            Rumors continue to fly on implementation of sentence credits for programming under the First Step Act (FSA), especially since the release of the Prisoner Assessment Tool Targeting Estimated Risk and Needs (PATTERN) in July. There has been no official  release of information by the federal prison system on this subject, despite pressure from the American Bar Association, and also Congress.   The agency is responsible by law for publishing proposed regulations. When it is available we will share it with you.

            Petitions seeking the "second look" found by criminal justice experts in the FSA continue to be filed.   Given their limited resources, it is unlikely that federal defenders will involve themselves in these matters, so any action will have to be initiated by you. 

            In Congress, Congressman Ted Deutch introduced HR 4018, which provides, "that the amount of time that an elderly offender must serve before being eligible for placement in home detention is to be reduced by the amount of good time credits earned by the prisoner..." as an amendment to the 2nd Chance Act.  We would be surprised if either house takes up this bill, but it at least puts DOJ on notice that Congress is considering the issue.

            In the Fourth Circuit, in US v Cornette, 932 F.3d 204 (4th Cir. 2019), the court held that retroactive ACCA claims are not barred by a defendant's appeal waiver, and defendant's 1976 Georgia conviction is no longer a valid ACCA predicate The court swept aside the objection that the sentencing transcript did not state whether the ACCA stemmed from an elements clause of the residual clause, citing US v. Winston, 850 F.3d 667 (4th Cir. 2017).

            Permit me to share a quote from Winston Churchill: "As one's fortunes are reduced, one's spirit must expand to fill the void."  Let not your heart be troubled.

Shular Case Amicus Groups Filed in Important ACCA Case

Shular Case Takes Center Stage as Supreme Court Begins New Term;   FSA Updates

by Derek Gilna

            The matter of Eddie Shular v United States continues to wind its way through the

US Supreme Court (SCOTUS), with amicus briefs in supports recently filed by the National Association of Criminal Defense Attorneys (NACDL) and FAMM.  Shular pleaded guilty to charges of possession of a firearm by a convicted felon and to controlled substances possession, and was classified as an armed career criminal because of six previous drug convictions in Florida. He objected to the classification in court, arguing his previous convictions were not "serious drug offenses" under the Armed Career Criminal Act (ACCA.)  After  by  11th Circuit affirmed , he filed with SCOTUS.

            NACDL's amicus group noted that the case is ripe for adjudication since the circuits do not agree on whether the categorical approach should control ACCA prosecutions of serious drug crimes: "Although this Court has repeatedly affirmed that the categorical approach applies to ACCA’s 'violent felonies' provision, it has not squarely addressed whether it applies to “serious drug offenses.” But there is no textual, policy, or other reason to treat this provision differently from other predicate offenses." A positive outcome would have major ratifications on thousands in the federal system.  No date has yet been set for argument of this case.

            Rumors continue to fly on implementation of sentence credits for programming under the First Step Act (FSA), especially since the release of the Prisoner Assessment Tool Targeting Estimated Risk and Needs (PATTERN) in July. There has been no official  release of information by the federal prison system on this subject, despite pressure from the American Bar Association, and also Congress.   The agency is responsible by law for publishing proposed regulations. When it is available we will share it with you.

            Petitions seeking the "second look" found by criminal justice experts in the FSA continue to be filed.   Given their limited resources, it is unlikely that federal defenders will involve themselves in these matters, so any action will have to be initiated by you. 

            In Congress, Congressman Ted Deutch introduced HR 4018, which provides, "that the amount of time that an elderly offender must serve before being eligible for placement in home detention is to be reduced by the amount of good time credits earned by the prisoner..." as an amendment to the 2nd Chance Act.  We would be surprised if either house takes up this bill, but it at least puts DOJ on notice that Congress is considering the issue.

            In the Fourth Circuit, in US v Cornette, 932 F.3d 204 (4th Cir. 2019), the court held that retroactive ACCA claims are not barred by a defendant's appeal waiver, and defendant's 1976 Georgia conviction is no longer a valid ACCA predicate The court swept aside the objection that the sentencing transcript did not state whether the ACCA stemmed from an elements clause of the residual clause, citing US v. Winston, 850 F.3d 667 (4th Cir. 2017).

            Permit me to share a quote from Winston Churchill: "As one's fortunes are reduced, one's spirit must expand to fill the void."  

Federal Legal Center, Inc.

Derek A Gilna, J.D., Director

113 McHenry Rd., #173

Buffalo Grove, IL  60089

(Also in Indiana)

dgilna1948@yahoo.com

Impeachment Circus in Congress Distracts from Sentence Reform, as Federal Courts Fill the Vacumn

2020 Election Distracts Congress from Further Reform, But Empowers Courts to Act

by Derek Gilna

            Congress' new impeachment preoccupation indicates that it has given up on serious legislating until after the 2020 elections,. Federal judges have taken notice and are already filling the vacuum. A newer generation of judicial activists are pushing back against some sentencing injustices, newly empowered by the First Step Act. That, combined with more focused looks into the appropriateness of prior offenses by reviewing courts, means that there are multiple methods to attack sentences. The large number of sentence reductions and shrinking prisoner population figures bear this out.

            Of course, a 2255 petition alleging inadequate representation of counsel continues to be the preferred method. Don't let the opportunity to challenge your sentence pass by without at least considering this avenue for relief.

            As the Supreme Court prepares for its Fall term, let us review some its major decisions of the past term. Of course, we know that in US v Davis, 139 S. Ct 2319, (8-24-19) the court struck down the unconstitutionally vague residual clause in 18 USC Section 924(c)(3)(B), supplementing the holding of Johnson and Dimaya. In US v Haymond, 139 S. Ct. 2369 (6-26-19), the court struck down a provision of the federal supervised release statute, 18 USC Section 3583(k, finding that it was contrary to Alleyne, reaffirming that any facts increasing a mandatory minimum must be found by a jury.

            In the First Circuit, In US v Mohamed, 920 F.3d 94 (4-3-19). the court vacated and remanded a sentence for being a felon in possession, since the prior state conviction in Maine for trafficking 5.7 grams of cocaine did not qualify as a controlled substance offense for purposed of 2K2.1. In the Second Circuit, in US v. Thompson, 921 F.3d 82 (4-10-19) the court remanded a cyber stalking case where the DC misapplied a 2-level enhancement for violation of a court protection order where it was not properly served.

            In the Fourth Circuit, in US v. Smith, (9-27-19,) the reversed a conviction under 18 USC 922(G), finding that NC conditional-discharge pleas are not a conviction for purposes of Subsection 921 and 922, and he was not therefore a felon in possession.

In the Eighth Circuit, in Lofton v US, 920 F.3d 572 (4-5-19), the court reversed and remanded the denial of a 2255 petition, which asserted that 327 month ACCA sentence

could not be increased as a result of an Illinois conviction for aggravated sexual abuse based upon Johnson, since it did not include a use of force.

            The Ninth Circuit, in US v. Graves, 925 F.3d 1036 (5-30-19,) vacated and remanded a mandatory life sentence for conspiracy to distribute meth, conspiracy to distribute marijuana, and possession of meth, holding that prior state convictions for inmate drug possession in California did not qualify as predicate felony drug offenses because it was indivisible and overbroad.

            

Federal Legal Center, Inc.

Derek A. Gilna, JD, Director

113 McHenry Rd. #173,

Buffalo Grove, IL   60089

(Also in Indiana)

dgilna1948@yahoo.com.

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.