BOP Resists First Step Changes on Seven Day Sentence Credit

New Proposed on "Good Time"   Sentence Credits  Shows DOJ Resists Change

by Derek Gilna

            We have made many inquiries regarding the proposed DOJ rule that concerns the 54-day credit mandated by the First State Act (FSA). Of the three alternatives put forth, Alternative 1 and 2 both skirt the intent of FSA, which is to reverse the ridiculous prior interpretation that ignored the ORIGINAL Congressional intent of 54 days credit. Alternative 3, which following the general language of FSA, but focuses on "exemplary compliance with institutional disciplinary regulations," authority which the prison system will fight hard to retain, and which courts traditionally uphold. We intend to comment on this proposed rule on your behalf.

            This brings up another important point:  FSA (and Washington politics) has forever changed the landscape of the federal justice system, but the bureaucratic prison system resists change with all of its might, and unfortunately spends more time in spreading disinformation than adjusting to the new FSA reality. 

            As the Supreme Court (SC) returns from the holiday break, one of the cases that we will be following is Shular v. US, which concerns whether the determination of a "serious drug offense" under the Armed Career Criminal Act requires the same categorical approach used in the determination of a  "Violent felony" under the act. It will be argued on January 21, and a decision issued before July of this year. This case is a high priority of all major criminal defense groups, and hopefully will be another blow against ACCA.

            In Illinois, the Governor has pardoned more than 11,000 people convicted of low-level marijuana crimes, on the heels of the beginning of legal recreational marijuana in the state. If you receive a notification from Illinois that your case is being considered under these pardons, we are available to review whether this might affect your predicate offenses used to enhance your federal sentence.

            In the 10th Circuit, the court granted a COA to explore whether "his trial counsel was ineffective for failing to adequately investigate and present at trial evidence of his organic brain damage." US v Fields, 17-7031, (10thCir. 12-30-19). This is an important case that we will be following closely, as a high percentage of federal prisoners suffer from both diagnosed and undiagnosed traumatic brain injury that may have contributed to their offense. There is no question that those of you with the possibility of 2255 habeas filings could benefit from the reasoning in this case, and get you back into court.

            We will focus next week on developing case law on Hobbs Act robbery cases, and possible post-sentence relief available in some jurisdictions.   This is a fluid area that should benefit many. Have a good week, and let not your heart be troubled.

Federal Legal Center, Inc.

Derek A. Gilna, JD, Director

113 McHenry Rd.  #173,

Buffalo Grove, IL   60089

(Also in Indiana)

dgilna1948@yahoo.com

First Step Update and Prospects of New Year's Reforms

One Year After Passage of First Step,  New Year Holds Prospect of Additional Relief

by Derek Gilna

Although inter-party Washington battles get the headlines, steady progress is being made toward additional sentence relief. With Congress and the President facing an election in eleven months, the pressure is on for more "big-ticket" legislative accomplishments for incumbents to convince voters that they should remain in office.
       Two groups NOT looking forward to the New Year are the bloated and inefficient law enforcement and federal prison bureaucracies, which have both feasted for decades, but are now facing unprecedented scrutiny and budget cutbacks.
For decades lobbyists pushing mass-incarceration  agenda ruled the halls of Congress and the White House, but no more.   They are outnumbered and overawed by dozens, if not hundreds of influential advocates and non-profits whose opinions are now sought out by both Congress and the White House, and if they have their way, will soon convert correctional facilities into institutions of real education and training, pushing aside the "lock-em-up" old guard.
Passage of First Step Act was the huge game-changer.    Just a few numbers to prove that: Fair Sentencing / Retroactive Sentence Reductions: 2,443 Orders Granted; Elderly Offender Home Confinement: 380 Approved; Compassionate Releases / Reduction in Sentences: 117 Approved; Ready to Work Initiative: 20 Contacts to BOP have been made; Volunteer Participation: +1,700 Increase in volunteers since December 2018.Thousands more cases are in the pipeline.
What form will, if you will, "Next Step" take? If Senators like Lindsay Graham have their way, implementation of FSA will eventually be removed from DOJ control: the evidence is that bureaucrats are already doing their best to delay FSA implementation. It has been suggested that a new Parole Commission, independent of DOJ, handle the process. Meanwhile, judges are holding he government to account for FSA opposition.
In US V Manzano, 18-3430, (2d Cir. 12-18-19), the court held in a SO case that the district court's instruction to the jury that they could render a verdict NOT in accordance with the law was improper, but that the government does not possess a clear and indisputable right to have excluded any evidence of sentencing consequences. The case is highly significant for several reason, but mostly for the fact that judges are clearly more aware of the Sixth Amendment rights of people-and juries-having authority to know the consequences of their decision. (See:   US v Haymond.)
In US v. Hall, 07-3036  (DC Cir. 12-12-19), the court threw out a money laundering conspiracy charge, in a mortgage fraud case, where the conduct was already encompassed by the bank fraud charge, and remanded for resentencing.
Best wishes of the season to all, and remember, let not your heart be troubled.

Federal Legal Center, Inc.
Derek A. Gilna, JD, Director
113 McHenry Rd.   #173,
Buffalo Grove, IL   60089
(Also in Indiana)
dgilna1948@yahoo.com

What Happened In Washington This Week Makes Justice Reform More Likely

by Derek Gilna

            The Supreme Court (SC) made no news in the past week of interest to prisoners, but developments in Congress and the DOJ certainly did. Whatever your political affiliation, the news regarding the abuses in the FISA court process, the Inspector General's report of multiple DOJ violations of Brady standards, and the former nation's disgraced top cop going on national television to claim he wasn't responsible, have exposed to the general public the abuses and lack of accountability inherent in the federal justice system. It also totally discredited the "keep the public safe" excuse for inaction.  "Rehabilitation," rather than "confinement," is now the public's priority.

            Congress, of course, is aware of the many abuses throughout the justice system's bureaucracy assaults, harassment, graft, and financial mismanagement.  The language of the First Step Act (FSA), highlighted the fact that the federal prison system can't be trusted to protect its weakest and most vulnerable, treat its sickest, release its oldest, or show mercy to its terminally ill. Count on "Second Step" and other reforms, including even parole,  being front-and-center  after the holiday break.

            In  a case related to the above subject matter, US v. Cano, out of the 9th Circuit, highlights the problem of pervasive police and prosecutorial misconduct. In that case, the appellate court reversed the district court's dismissal of a conviction for a warrantless search of defendant's cell phone at the border on 4th Amendment grounds, despite the SC ruling in Riley v. California, which held the opposite. 17-50151, 8-16-19. The case shows the extent to which the government is willing to go to bypass the 4th amendment if left unchallenged by competent defense counsel.

            In the 11th Circuit, the court recognized that mental disabilities ignored by defense counsel prior to sentencing required that the matter be remanded for a new trial for inadequate representation of counsel.   Jefferson v. Warden, 17-12160, 10-17-19. We have previously here referred to numerous studies that mental health or PTSD issues can and must be put forward by defense counsel in sentencing proceedings, lest they be found to have rendered inadequate representation of counsel. "Neuroscience, PTSD, and Sentencing Mitigation," Grey, Prof of Law, AZ State University.

            In the 6th Circuit, White v Warden, 18-3277, 10-8-19, held that procedural default would not prevent a court's denial of a writ of habeas corpus and a remand for an evidentiary hearing, to examine the issue of a conflict of interest by defense counsel. US v. Arrington, (2d Cir. 10-18-19), reached this same conclusion. An 8th Circuit First Step case overruled a denial of relief by the district court and ruled that defendant had already received a reduced sentence in 2016, and ordered a 404 rehearing. US v McDonald, 19-1221, 12-11-19.

            

First Step Act Can Maximize Community Corrections Time.

Does the First Step Act Permit Maximization of Community Corrections?; Case Updates

by Derek Gilna

            Many questions have arisen about whether the First Step Act (FSA) provides for maximization of community corrections, including halfway house.   This concept was around long before the passage of FSA in 2018.  It has long been a staple of good representation that defense counsel should advocate  for the maximum period of community corrections,  a requirement under Section 3621(b).

            It is well known that the federal prison system has violated Congress' directive to

maximize halfway house time, and has relied upon informal internal directives to cap placements at six months, and has consistently misled prisoners and the general public regarding this fact. Its use of those informal directives is in direct violation of the Administrative Procedure Act, which requires notice-and-comment procedures to be followed.   It is our opinion that FSA now gives the sentencing courts jurisdiction to attack these provisions (and others) with a well-drafted pleading.

            The US Supreme Court will hear arguments in Banister v. Davis, 18-6943,  whether and under what circumstances a timely Rule 59(e) motion should be re-characterized as a second or successive habeas petition under Gonzalez v. Crosby. Rule 59(e) motions have been used to sidestep statute of limitations issues in post-conviction motions.

            We revisit an important case in the 9th Circuit, Washington v. Ryan, (9th Cir. 4-17-19), a 2255 habeas case reversed and remanded for defense counsel's failing to investigate and present mitigating evidence at the penalty phase: " In the penalty phase, the focus shifts from guilt to culpability, and evidence on both aggravating and mitigating factors is properly considered." In Washington, counsel failed to offer clearly available evidence of mental illness, prejudicing his client.

            We also revisit the case of US v Hassan Ali, 15-4433, a 4th Cir. Hobbs Act robbery appeal, that has been again held in abeyance. The case has now been pending four years, an unusual circumstance.

            In US v Perez, 17-14136, (11th Cir. 11-26-19) the court vacated a conviction where the facts did not justify a 18 USC 2113(a) prosecution based upon a reasonable fear of death enhancement, where the facts showed that without possessing or threatening the use of weapons, he entered two banks, and using words like "please" and "thank you" "bargained pleasantly with one teller for $5000 and allowed another teller to leave he teller's post and report the robbery while it was ongoing."

Second Step Act Considered to Build Upon First Step Reforms

What is the Likelihood of a "Second Step Act?" How Presidential Politics Will Make It Happen. 

by Derek Gilna

            Criminal Justice reform is the one reliably bipartisan issue in a politically divided country. The President receipt of the Bipartisan Justice Award from predominantly African American Benedict College in the past week, based upon his support of First Step Act (FSA), effectively one-upped Democratic primary candidates who have been touting their own criminal justice plans. He also symbolically signaled his opposition to the DOJ's bureaucratic slow-walking of the FSA reforms that have handed to almost all federal prisoners a path to sentence reduction.

            In his acceptance speech, the President challenged the Democratic Party's decades of control over their core constituency of minority voters, and forced its field of candidates (which contains three former aggressive prosecutors), to embrace more radical reform. However, he was also called to do more to bring DOJ into FSA compliance.

            In the U.S. Supreme Court, three cases of interest await action, including Eady v US, Caldwell v US, and Paul v US. In Eady, the court is asked to review the "knowingly" provision of 922(a)(2) cases to see if it applies to both possession and status elements of a 922(g) crime. In Caldwell and Paul, the court is considering whether a SO registration and Notification Act delegation to the AG violates the constitutional nondelegation doctrine.

            More courts continue to grant compassionate release.    After the case of Brittner v US, 16cr15 (Dist. of MT, 2-18-19) granted relief based upon an "extraordinary and compelling" medical reasons, more recently, in US v Walker, 11-cr270 (ND OH, 10-17-19, the court granted relief based upon extraordinary rehabilitation while in prison. In US v Cantu, 5cr458, (SD-TX, 6-17-19), the court placed Cantu in home confinement based upon  "extraordinary and compelling reasons (that) warrant a reduction of...sentence."

            In a 9th CIrcuit case that has implications for FSA petitions where drug quantity is an issue, the court ruled that the drug quantity in the PSR adopted by the sentencing court is NOT binding in 3582(c)(2) sentence reduction proceedings, and did not disqualify petitioner from FSA relief.  US v. Rodriguez, 9221 F.3d 1149 (9th Cir. 2019).

            The 9th also found in case involving the illegal distribution of various controlled substances the  assessment of the drug quantity incorrectly increased a sentencing factor, and that when that "has an extremely disproportionate effect on the sentence relative to the offense of conviction, the government may have to prove the factor by clear and convincing evidence." US v. Ridgill, 18-50128, (10-23-19), quoting US v. Felix, 561 F.3d 1036,`045 (9th Cir. 2009) and US v. Mezas de Jesus, 217 F. 3d 638 (9th Cir. 2000).

            The government might also be facing some challenges in its methodology in determining base offense level in meth cases, based upon the Alaska case of US v. Rodriguez, 17cr31, 4-5-19, where the district court said that it "will routinely grant downward variances...to correct this disparity." 

Yet Another Compassionate Release Granted by District Court

Supreme Court Accepts Yet Another ACCA Case; District Court Grants FSA Compassionate Release

by Derek Gilna

            The federal district court in Nebraska ruled in US v. Urkevich, 3-cr-37, 2019 WL 6037391 (D. Neb. 11-14-19), that it had the power to reduce sentences under 18 USC 3582(c)(1)(A) under the First Step Act (FSA).It stated:  "A reduction in his sentence is warranted by extraordinary and compelling reason, specifically the injustice of facing a term of incarceration forty years longer than Congress now deems warranted for the crimes committed...the Defendant has demonstrated that he poses no current danger to the safety of any other person or...the community," and reduced his sentence accordingly.

Note that Petitioner was NOT elderly OR terminally ill. Please advise if you have any questions regarding this process that will free hundreds if not thousands of federal prisoners, as judges continue to expand their power to grant relief.

            The Supreme Court has granted a writ of cert of another ACCA case, Walker v. US, 19-373, which asks whether a criminal offense that can be committed by mere recklessness can qualify as an ACCA "violent felony." We expect that SCOTUS, which clearly does not like ACCA, will use this case to further limit its use in a new class of cases, and open the door for retroactive  relief for more prisoners.

            One of the more misunderstood recent SCOTUS decisions is arguably the Rehaif case, which unfortunately was NOT made retroactive on collateral review since it involved a new rule of statutory, not constitutional law. Nonetheless, that has not prevented even the non-prisoner-friendly 11th Circuit from opening the door for it to be raised in a post-conviction filing.  In Re: Joseph Demond Wright, 19-13994-A (11th Cir. 11-7-19), the court denied a second 2255 on the above grounds, but stated that he could bring his claim "as a 2241 petition through 2255(e)'s saving clause."   This holding prompts us to state that it is now worthwhile to re-review your case if it has certain Rehaif facts, and there is a possible pathway to relief.

            The 8th Circuit also granted Rehaif relief in US v. Davies, 18-2662, (8th Cir. 11-8-19), holding that "The Supreme Court explained in Rehaif that a defendant without knowledge of his status under 922(g) 'may well lack the intent needed to make his behavior wrongful,'" and remanded for a new trial.  In US v. Balde, 17-3337, (2d. Cir. 11-13-19), the court vacated the conviction, stating that although "the indictment's failure to allege explicitly that Balde knew he was unlawfully in the US was not a jurisdiction defect," there was "plain error" in his acceptance of the guilty plea.

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.