First Step Act in Ninth Circuit Provides Additional Support For Federal Sentence Reductions

 

Ninth Circuit Lopez Decision Opens the Door to Additional Sentence Relief; Legislative Updates

 

by Derek Gilna

 

            The 9th Circuit decision in US v. Lopez, No. 19-50305 (9th Cir. May 21, 2021), currently precedential only in that circuit, provided potent new reasoning for First Step Act (FSA) litigants seeking a resentencing. In that decision, the 9th Circuit said in its official syllabus (but not the opinion) of the decision, "The panel affirmed the district court’s imposition of a sentence pursuant to the safety valve set forth in 18 U.S.C. § 3553(f), which allows a district court to sentence a criminal defendant below the mandatory minimum for certain drug offenses if the defendant meets the criteria in § 3553(f)(1) through (f)(5).

            "In the First Step Act of 2018, Congress amended § 3553(f)(1), which focuses only on a criminal defendant’s prior criminal history as determined under the United States Sentencing Guidelines. As amended, § 3553(f)(1) requires a defendant to prove that he or she “does not have” the following: “(A) more than 4 criminal history points . . . (B) a prior 3-point offense . . . and (C) a prior 2-point violent offense," the court continued.

            "Applying the tools of statutory construction—including § 3553(f)(1)’s plain meaning, the Senate’s own legislative drafting manual, § 3553(f)(1)’s structure as a conjunctive negative proof, and the canon of consistent usage—the panel held that § 3553(f)(1)’s “and” is unambiguously conjunctive...the majority held...that a defendant’s criminal history must satisfy all three."

            Congress's recent rough handling of the federal prison director at an oversight hearing and recent public statements shows that it realizes that the federal prison system is on the verge of a breakdown, and its systemic failures to follow statute and proper procedures can no longer be ignored. Although many of these failures, such as inadequate medical care, have been "baked" into the system for years, COVID-19 flubs, compounded by obvious cover-ups, have made it clear how bad the situation truly is.

            Part of the problem is that good, qualified people don't want to work for the system. According to the AP, "Nearly one-third of federal correctional officer jobs in the United States are vacant, forcing prisons to use cooks, teachers, nurses and other workers to guard inmates. At a federal penitentiary in Texas, prisoners are locked in their cells on weekends because there are not enough guards to watch them... The Justice Department budgeted for 20,446 full-time correctional officer positions in 2020, but the agency that runs federal prisons said it currently employs 13,762 officers. "

            Of course, along with the tens of thousands of federal prisoners, almost 7,000 employees were sickened with COVID-19. Officers were sent to hospitals to guard inmates being treated for the virus. Four staff members and 235 inmates died.

            Prison programming, which can lead to sentence reductions, has also suffered. .

 “You can’t do programming, you can’t have safety, you can’t have a lot of things that make prisons operate without proper staffing,” said Kevin Ring, the president of the advocacy group Families Against Mandatory Minimums.

            Many are rightfully asking when the various prison reform bills currently in House and Senate Committee will come up for a vote and perhaps be signed into law. The answer is complicated. Congress works an average of three days a week, takes multiple recesses, and the amount of time for debate and votes is limited. Congressional leadership has its priorities, and prison reform is clearly not at the top of the list. Nonetheless, after  the wrangling over "Infrastructure" legislation ends, I expect the President to move ahead on these bills. Clemency reform continues to be a clear priority of Biden's staff. Remember that two months prior to the passage of First Step, all of the "experts" (but one, lol) said that it would not even come up for a vote. Once President Trump said he wanted it passed, it became law in a few short weeks.

            Congress continues to be frustrated with the slow pace of CARES releases and warden approvals of compassionate release petitions.  Federal prison officials confirm that wardens approved only 36 of 30,969 requests for compassionate release between March 2020 and April 2021, as the coronavirus took its toll on prisoners. As the situation worsened, the system's response was to become even more opaque, by removing cases and deaths from its reports in recent months. As noted by the Marshall Project, "As a result, we cannot accurately determine new cases or deaths in federal prisons, which have had more people infected than any other system."

            There are many new cases and it appears that the very limited number of vaccinations might also have been botched. I have been advised that several prisons failed to properly store the doses, possibly compromising their effectiveness. There was often little regard to who should delay getting vaccinated, due to incomplete screening for possible serious side effects. It is clear in that dozens of instances prisons gave the vaccine to individuals who were non-symptomatic COVID-positive, causing severe side-effects. Several others tested COVID-positive AFTER being vaccinated, which could indicate a spoiled vaccine.            Seagoville is one facility where the vaccine might have been mishandled, leading to severe side-effects which are not addressed by medical staff. CDC Chicago and Marianna have new confirmed COVID cases.

            According to the US Sentencing Commission, "3,705 offenders were granted a sentence reduction under Section 404; 65% were assigned to the highest Criminal History Category (VI); 56% were Career Offenders; 45% received a weapon-related sentencing enhancement; Offenders received an average decrease of 6 years in their sentence; 

The original average sentence was 274 months; The new average sentence was 202 months; 87% of granted motions were made by the defendant, 9% by the attorney for the government, and 4% by the court." What are you waiting for?

            A bit of humor from Louisiana Senator John Kennedy:  "This is why aliens won't talk to us."

 

 Be not afraid, and let not your heart be troubled.

 

Federal Legal Center, Derek A. Gilna, JD, MARJ, Director

113 McHenry Rd. #173, Buffalo Grove, IL    60089 (and Indiana)

dgilna1948@yahoo.com (English/Spanish questions); federallc_esp@yahoo.com (Spanish)

Google Blog:   "Derek Gilna's Criminal Justice Musings and Reflections."

District Court Decision in Masschusetts Offers Strong Arguments for 18 USC 3582(c)(1)(B) Sentence Relief

 

District Court Opinion in US v. Trenkler Shows Reach of FSA's  18 U.S.C. § 3582(c)(1)(A) Powers

 

by Derek Gilna                                                                         

 

            Although I do not often spotlight district court decisions because of their admittedly limited applicability to other districts or circuits, the case of US v. Trenkler, 92-10369, (USDC D of Massachusetts, May 6, 2021 demands otherwise. In Trenkler,

"Defendant (65) moves for compassionate release, asserting that extraordinary and compelling circumstances warrant his release based on (1) the COVID-19 pandemic, particularly in light of his documented heart condition and the outbreak that has left at least 1009 inmates infected with COVID-19 over the past year at USP Tucson; and (2) what Trenkler characterizes as a series of miscarriages of justice that call into question his convictions and sentence. 

            "The Court reduced Trenkler’s sentence to a term of 41 years, followed by a term of supervised release of 3 years...  Trenkler urges the Court to reduce his sentence to time served in light of the 'unique circumstances' surrounding his case. ..Congress has spoken again [via the FIRST STEP Act].  And this time it has given trial judges broad authority — indeed it has imposed a statutory duty, upon a defendant’s motion — to conduct an individualized review of the defendant’s case for extraordinary and compelling circumstances that call out for correction (and) leaves no question that this Court may conclude that a legal error at sentencing constitutes an extraordinary and compelling reason, and reduce the sentence after conducting an individualized review of the case...."

            In the Fifth Circuit, a judge was removed from a terrorism case for anti-government bias, which almost never happens. "US District Judge Lynn Hughes,...has developed a reputation as a feisty contrarian over his 33 years on the federal bench, prome to didactic tangents and rants about governments from the city  to the federal level trampling on individual and corporate rights, ...(commenting in the case of Asher Abid Khan case) about "blue-suited thugs,"  while sentencing the defendant to only 18 months.

            COVID-19 refuses to go away, despite the best efforts of the DOJ, and now the CDC to wish it to happen.   However, it is important that it is transitioning from a "free world" problem, where social distancing, vaccinations, and good medical treatment are reducing mortality to near zero.   Unfortunately, it has become just one of many prison-based health risks, along with mold, spoiled food, indifferent to non-existent medical care (often covered up by falsifying medical records), legionnaires disease, decaying heating and ventilation systems,  and lack of any mental health treatment that lowers a prisoner's life expectancy.

            Although almost all of the federal prisons suffer from these problems, some courts have turned a blind eye to these conditions, accepting DOJ's laughable "Action Plans" as true. My inbox is constantly filled with your personal statements regarding the true conditions at your institutions, including Elkton, "conditions...have not changed with the exception of some plastic posters being put on the wall stating to wash your hands and keep 6 feet apart;"  FMC Lexington,  where there are four new COVID cases, and staff are "denying ADA" medical supplies, including test strips for diabetics,, FMC Carswell, "with oxygen tanks haphazardly stored at its rear docks," which is a potentially dangerous situation, and a pending investigation for medical malfeasance; and the system-wide refusal of DOJ to take seriously the long-term medical impact of "recovered" COVID patient. Document all of this for possible future use.

            Those looking for support in their arguments regarding DOJ incompetence in the COVID pandemic, look no further than "Death in Federal Prison in Dorm-T: The Tragic Tale of Jimmy Monk."   The article by Walter Pavlo, a consultant on white collar crime and punishment, spotlights the medical indifference shown by medical staff of a camper whose COVID symptoms were purposely ignored, stating, "The tragedy of Jimmy's death was not so much the disease that took him away, but the suffering of his knowing that the disease was coming for him." www,forbes.com, April 14, 2021.

            As previously pointed out in these pages, there are still more studies that are realistic about the chance of reinfection for those with compromised immune systems, even if they have been fully vaccinated. Talk show host Bill Maher recently made headlines for contracting COVID after being vaccinated. "If you have a weakened immune system, the...vaccines may have a reduced effectiveness...it's still important for you and those around you to get vaccinated...(and) take extra precautions."www.abcnews.com, April 28, 2021.  

            The case of US v. Edward, 19-13366, (11th Cir. 5-12-21) takes a somewhat circuitous route in the affirmance of a sentence reduction granted in the district court to a crack defendant who cited 404b, and 3582(c)(1)(B) in a successful effort to reduce his sentence, but one in which the court also increased the length of supervised release. The court upheld both the sentence reduction and the supervised release increase, stating that the  First Step Act provides all the authority needed to modify a sentence, including reducing the term of imprisonment and tinkering with supervised release.

            For those of you still waiting on Congressional action on the many pending sentence-relief bills, they are all currently sitting Congressional committees awaiting a go-ahead from the White House to bring them to the floor for a vote.    Expect this to happen after the infrastructure and voting bills are either passed or defeated. So far, all of the sentence relief attention is focused on the quiet move to jump-start the clemency application backlog, which only requires the approval of the White House to proceed.

            Be not afraid, and let not your heart be troubled.

 

Federal Legal Center, Derek A. Gilna, JD, (DePaul, 1975),

MARJ (Master of Restorative Justice, Vermont Law School, 2020),  Director,

113 McHenry Rd. #173, Buffalo Grove, IL   60089, (and Indiana);

dgilna1948@yahoo.com (alternative dagilna1948@yahoo.com), blogging at "Derek Gilna's Criminal

 Justice Musings and Reflections."

           

 

Bureau of Prisons "Run by Morons" and Compares Federal Holding Facilities to Colombian Jails

 

Federal Judge in New York Says MCC New York "Run by Morons," Other News

 

by Derek Gilna

 

            Manhattan federal court Judge Colleen McMahon probably said what other federal judges probably are already thinking, when she blasted the conditions of two notorious federal jails in the city during a recent sentencing hearing — saying they are run by "morons" who subject prisoners to disgusting conditions, according to a court sentencing transcript. Wardens, she said,  "cycle repeatedly, never staying for longer than a few months or even a year," meaning no one is ever held accountable for the systemic failures. "It is the finding of this Court that the conditions to which she was subjected are as disgusting, inhuman as anything I’ve heard about any Colombian prison, but more so because we’re supposed to be better than that," she added.  This should be required reading for all federal judges who are of a mind to deny ANY petition for compassionate release.

            The fallout from the disastrous appearance by the federal prison director at the Congressional oversight hearing before the Senate Judiciary Committee in March continues to reverberate.  The legislative-affairs arm of the Federal Public and Community Defenders recently sent a letter to Chairman Durbin and Ranking Member Grassley that complained that DOJ has yet to comply with the law to submit statistics on denied compassionate release applications, has failed to address defects in medical care, ignored clear errors in the PATTERN program, and  instituted rules that are contradictory to the First Step Act.

            President Biden extended the COVID-emergency rules to at least the end of December, so that CARES Act releases can continue. The confusing memo sent out by DOJ on CARES guidelines at the time of the March hearing, which purported to widen the criteria for CARES releases, only increased the pressure on DOJ to do more releases. Privately, this past week, the White House told advocates that Biden is preparing to use his clemency powers to commute or pardon incarcerated people. 

            Unfortunately, COVID-19 still is roaming the federal prison system, even after the raw numbers of new infections have dropped.  Although around 60% of the US population has had at least one vaccine dose,  federal prisoners and prison guards vaccination rates are still under 60%. According to the CDC, even those prisoners who have "recovered" are still at risk if they are immuno-compromised. "Older people or those with compromised immune systems may not produce a sufficient immune response to the vaccine leaving the body vulnerable said Davis Hirshwerk, ...infectious-disease physician at Northwell Health System in Manhasset, NY."   THE CDC has also warned about the continued risks of death by blood clotting in COVID patients and a smaller percentage of those receiving one of the three major vaccines, www.wsj.com, 4-16-21.

            People are still dying of COVID-19 in the federal prison system, nine since March 1, 2021, and quarantines and lockdowns like the one at Devans, Hazelton (with at least 5 new positive tests) ,  and elsewhere. "As many as 35% of those who become infected...will experience symptoms over...six months after infection..., " according to the NY Times. Most doctors have no experience is how to treat these patients, and there is little doubt that the federal prison system is not equipped to handle the number of prisoners still suffering.

            The Wall Street Journal said that the IRS has "paper returns and envelopes containing checks piled up in trailers for want of people to process them." Its advice: don't call the IRS, understand the staff shortage, pay attention to any IRS notice letters that you get, take appropriate action on them, and be patient.

            The US  Supreme Court of Terry v. US, 20-5904, was argued the past week, wherein both the appellant and the US agreed that "crack offenders sentenced under (b)(1)(C) have a covered offense under Section 404. Statutory text, history, and common sense all compel that conclusion. ...Because (b)(1)(C) cross-references (b)(1)(A) and (B), when Section 2 raised the crack quantities for (b)(1)(A) and (B), Section 2 also modified (b)(1)(C). That modification expanded the scope of conduct subject only to (b)(1)(C), and it changed the sentencing benchmarks by which (b)(1)(C)" can be modified. This will be an important opinion to watch for when it is finally issued by the court.

In US v Owens, 20-2139, ( 6th Cir. 5-6-21), the defendant was convicted of five counts of possessing or aiding and abetting the possession of a firearm during a crime of violence (18 U.S.C. 924(c)), one carjacking, four counts of bank robbery by force or violence, and being a felon in possession of a firearm. A single section 924(c) conviction carries a five-year mandatory minimum sentence. Each subsequent 924(c) conviction then (2004) triggered an additional 25 years, even if those convictions were part of a single indictment. Owens went to trial and was sentenced to 1260 months. Owens’s co-conspirators pleaded guilty and were sentenced, respectively, to 21 months, 33 months, 39 years, and 25 years of incarceration. Owens filed for CR under 3582(c)(1), was denied, but the Sixth Circuit reversed, directing the court to consider whether Owens’s rehabilitative efforts and the lengthy sentence he received because of exercising his right to a trial may, in combination with the First Step Act’s changes, constitute an extraordinary and compelling reason for compassionate release.            The Seventh Circuit reached a similar conclusion in US v Newton, (7th Cir. 5-4-21),  where defendant moved for compassionate release under 3582. He suffered from asthma, hypertension, and the use of a corticosteroid increased his risk of CVI-related death. The district court denied, but the appellate court remanded, stating that "when an inmate...presents individualized arguments... (the) opinion must leave us assured that it considered those individualized arguments and properly exercised its discretion...(and made its) thinking clear."            But this past Friday, a split Eleventh Circuit panel issued the first major ruling in this area that breaks with the jurisprudence developed in these other circuits.  The majority opinion in US v. Bryant, No. 19-14267 (11th Cir. May 7, 2021). denied relief.            The Second Circuit back in September was the first circuit to rule in Zullo/Brooker that district courts now have broad discretion to consider "any extraordinary and compelling reason for release that a defendant might raise" to justify a sentence reduction under 18 U.S.C. § 3582(c)(1)(A).  Since then, there have been somewhat similar opinions from the Fourth, Fifth, Sixth, Seventh, Ninth and Tenth Circuits generally recognizing that district courts now have broad authority after the FIRST STEP Act to determine "extraordinary and compelling" reasons that may justify a sentence reduction when an imprisoned person files a 3582(c)(1)(A) motion. I would expect this issue to find its way to the Supreme Court to resolve the circuit split.

Be not afraid, and let not your heart be troubled   Federal Legal Center, Derek A. Gilna, JD, MARJ, Director, 113 McHenry Rd., #173, Buffalo Grove, IL   60089 (and Indiana); dgilna1948@yahoo.com; blogging at "Derek Gilna's Criminal Justice Musings and Reflections."

 

BOP Memo Limits CARES Releases after Director Told Congress That It wouldn't Happen; Biden Told to Stop Talking and Deliver Reform

 

Biden Feels the Heat: Reformers Demand Immediate Action; BOP redefines "Violence," to Reduce CARES releases.

 

by Derek Gilna

 

            In a video conference with Biden officials the past week, criminal justice advocates expressed their dissatisfaction with the pace of reform, with at least one calling it "unacceptable," since Democrats now control all levers of Executive, Congressional, and bureaucratic power. All the sweeping legislative initiatives, including the EQUAL Act, which would finally eliminate the cocaine crack disparity, are currently still in committees, awaiting a signal from the White House to bring them up for a vote.

            Congress may not wait much longer for that signal. Senators recently verbally roughed-up the federal prison chief in an oversight hearing, and that pressure directly led to the apparent loosening of restrictions on CARES releases. However, much as it did on First Step reforms, DOJ immediately made internal changes to tighten rather than loosen release criteria, only permitting the 25% threshold for CARES release consideration to be offered to those 18 months from the door. (This of course would not affect Compassionate Release Petitions, which permit judicial action on prison releases based upon prisoner and family health criteria, regardless of how much time you have served.)

            There is also a new bill that would repeal the Prison Litigation Reform Act. Repealing the PLRA is part of Congresswoman Ayanna Pressley’s criminal justice agenda and is contained in her People’s Justice Act. Access to courts is the key to other rights; without access, incarcerated people have no ability to shine a light on overcrowding, lack of medical care, rape, violence, or arbitrary abuses of power by correctional officials. This bill has attracted many co-sponsors, who know that it is a much-needed reform.

            DOJ's broad definition of what is a "violent" crime has also come under scrutiny.

A prime example of this is 924Ca or Hobbs Act conspiracy or robbery cases, which have been deemed non-violent in most judicial circuits. This is a prime candidate for judicial review, and given the current composition of the Supreme Court, and it's stated hostility to administrative agencies overstepping their bounds in issuing rules and regulations contrary to legislative intent.

            Those individuals with immigration issues won a rare victory in the Supreme Court this past week, in Niz-Chavez v. Garland,  19-863, which ruled that nonpermanent resident aliens ordered removed from the U.S. may obtain discretionary relief if, among other things, they can establish their continuous presence in the country for at least 10 years, 8 U.S.C. 1229b(b)(1). The “stop-time rule” included in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) provides that the period of continuous presence “shall be deemed to end . . . when the alien is served a notice to appear” in removal proceedings.

            A notice that omits any required information does not trigger the stop-time rule. Thus, if the notice is defective, the 10 years, which could permit you to remain in the country after release,  could be considered to still run, even if you are in prison.

            COVID-19 containment continues to vex prison officials, with former hotspots Rochester, Carswell, St Dix, and Devans reporting new outbreaks (and some fatalities).  Atwood Satellite Camp, in Lexington , Kentucky, which also houses chronically ill people, reports positive cases, aggravated by lack of CARES releases and continued overcrowding.

            Unfortunately, conditions in the prisons are such that individuals who would not even consider a flu shot on the outside have felt compelled to get a COVID shot, especially since only 50% of the guards have gotten vaccinated, an unconscionable low number. There has been some rare cases of side-effects to Moderna, including a few cases of Bell's Palsy (face droop.)

            In U.S. v. Hammond, 19-2357, (7th Cir. 4-26-21), the  court affirmed, rejecting defendant's search suppression issues, but  ruled that the district court erred in instructing the jury regarding the felon-in-possession charge under the Supreme Court’s “Rehaif” decision, and that Hobbs Act robbery is not a crime of violence under 18 U.S.C. 924(c) or under the Sentencing Guidelines, so his section 924(c) conviction must be overturned, and his sentence vacated

            In US v Green, 19-4703, (4th Cir. April 29, 2021) Green was sentenced as a career offender under U.S.S.G. 4B1.1, after the district court found that Hobbs Act robbery, 18 U.S.C. 1951, to which Green pled guilty, qualified as a crime of violence under that provision. Five federal courts of appeals have concluded that Hobbs Act robbery does not qualify as a crime of violence. The designation increased his sentencing range from 77-96 months to 151-188 months’ imprisonment.

             The Fourth Circuit vacated Green’s sentence and remanded for resentencing. A robbery offense that, like Hobbs Act robbery, may be committed through force or threats of force against property as well as against persons is not a categorical match with any portion of the Guidelines definition of “crime of violence” set out in section 4B1.2(a). Nor is Hobbs Act robbery a categorical match for “extortion” as enumerated under section 4B1.2(a)(2).

            In Us v Collington, 19-6721, (4th Cir. April 26, 2021) In 2010, defendant was sentenced to 30 years' imprisonment after pleading guilty to various federal narcotics and firearm offenses. In 2019, defendant moved for a reduced sentence under section 404(b) of the First Step Act, contending that his sentence was ten years longer than the current statutory maximum. The Fourth Circuit vacated the district court's denial of defendant's motion for a reduced sentence under the Act, concluding that, in light of United States v. Chambers, 956 F.3d 667 (4th Cir. 2020), the district court may only exercise its discretion to reduce or not reduce any given sentence after faithfully considering a number of resentencing factors.

             One criteria was the applicable statutory maximum sentence. The court explained that, if sentenced today, defendant would be subject to the sentencing ranges set forth in 21 U.S.C. 841(b)(1)(C); that range sets a maximum mandatory term of 20 years' imprisonment. The district court erred by not resentencing defendant to, at most, 20 years' imprisonment and held that when a court exercises discretion to reduce a sentence, the imposition of the reduced sentence must be procedurally and substantively reasonable. Remanded, with instructions.

            Be not afraid, and let not your heart be troubled.

Federal Legal Center, Derek A. Gilna, Juris Doctor, Master of Restorative Justice, Dir.

113 McHenry, #173, Buffalo Grove, IL   60089 and also Indiana; dgilna1948@yahoo.com, and blogging at "Derek Gilna's Criminal Justice Musings."

Bureau of Prisons Finally Releases new CARES Act Memo, after Sending It To the Prisons Without Releasing Contents to the Public

 

DOJ Finally Releases Previously Leaked Changes to CARES Act Criteria; Other Updates

 

by Derek Gilna

 

            After several days of uncertainty, DOJ finally publicly released the updates CARES Act guidelines to be followed by wardens and prison staff in deciding release eligibility.  Some of the highlights include; limiting disciplinary disqualifications  to only those that occurred in the past 12 months; requiring a verifiable release plan; excluding those with sex offenses and detainers; giving priority to low and minimum security and PATTERN scores; having vulnerability to COVID-19 due to medical conditions.   It also lowers the sentence  completion threshold to 25% from 50%, and also makes eligible those with less than 18 months left on their sentences.

            Why the sudden change of direction? Compassion?   Common sense? Hardly.

The rough handling of the Director of the federal prison system the past week reflects a mood in  Congress that can best be described as "fed up with COVID-treatment incompetence." Unfortunately, with the policies and personnel currently in place in the prison system, that incompetence will not suddenly go away. Thus, Congress is requiring not only a relaxation of release standards, but a regular report as to how many prisoners are being processed under the program. The apparent  thought is that a federal prison system with less than 100,000 prisoners might work more smoothly. However expect DOJ to mistakenly classify some prior offenses as violent, like 924C, which they are not.   If this happens or other similar misclassifications happen, you MUST start the BP process as a precondition to filing a lawsuit that will get you on track for release.

            DOJ is not just guilty of a lack of transparency on an important matter of public concern, but is actually providing misleading information about what the current home confinement criteria are right now. Misleading information about home confinement criteria is not just problematic for persons in federal prisons and their families who might think they ought to be eligible for home confinement.  It is also problematic for federal judges around the country who are considering compassionate release motions and who might be influenced by the new home confinement criteria in their decision-making. 

            After fielding many complaints about missing Stimulus checks, I remind you that the first check can be held for child support and other liens, but the second and third should not be.   However, there is a little-used provision that permits amounts in your account above $450 to be attached. The biggest problem, however, is that the IRS is late on processing ALL checks, not just those for prisoners, whose checks are not segregated by status. If you have outside contact to receive the check, use that, or the lockbox.   Getting checks mailed to the  prison is a recipe for disappointment.

            COVID-19 cases, including both new and continuing cases,  are continuing to take a toll in the federal prison system. The NY Times has noted that only slightly more than 50% of prison guards have been vaccinated. Coleman and Milan continue have new cases, and Ashland was recently locked down for COVID reasons.

             Michigan continues to be a hotspot while cases drop in other states and regions with more vaccinations taking place. "Public health experts say the outbreak – driven by the B.1.1.7 variant of the virus, which is more contagious and more severe – is spreading rapidly in younger age groups. And across the state, doctors and nurses are increasingly reporting a concerning trend: Younger patients are coming in more often with serious cases of Covid- 19. 'I am putting more patients in their 20s and 30s and 40s on oxygen and on life support than at any other time in this pandemic'” said Dr. Erin Brennan, an emergency room physician in Detroit." www.buffalonews.com, April 26, 2021.

            Yet another article argues that "Long Covid" cases are being minimized by individuals who wish to dismiss it as psychological in origin. "Resulting from COVID-19 infections, the emerging postviral syndrome is poorly understood.   Patients suffer from symptoms such as fatigue, brain fog, and shortness of breath long after clearing the infection." The National Institute of Health agrees, and  invested $1.5 billion in researching the issue. www.wsj.com, 3-31-21, page A19.

Courts continue to grant sentence relief. In US v Combs, 18-6003, (6th Cir. 4-22-21). Combs pleaded guilty to participating in a cocaine distribution ring. The court initially held that Combs’s Kentucky trafficking offense was categorically qualified as a “controlled substance offense” under the Guidelines; U.S.S.G. 4B1.2 and Combs’s designation as a career offender. Combs was sentenced to 188 months’ imprisonment due to his career-offender status, U.S.S.G. 4B1.1. The court rejected Combs’s argument that distribution requires a commercial aspect. In an amended opinion, the Sixth Circuit cited intervening circuit precedent and reversed the career-offender finding for Combs. Conspiracy to distribute controlled substances is not a controlled substances offense under U.S.S.G. 4B1.2(b).                US V. McCoy, 17-3515, (2d Cir. 4-22-21). Defendants McCoy and Nix appealed their convictions for charges related to their involvement in a series of home invasions .and theft of commodities that had been shipped and transported in interstate and foreign commerce. The court agreed that their firearm-brandishing convictions should be reversed on the ground that none of their Hobbs Act offenses are predicate crimes of violence under 18 U.S.C. 924(c); reversed and remanded.             In US v Mayhew, 19-6560, (4th Cir. 4-19-21), concerned a white-collar case where defendant received 26 years.   In his 2255, he argued that his lawyer had guaranteed him that if he went to trial he would receive at most 5 years, and thus he rejected a plea from the government. He also alleged that his lawyer's incorrect sentencing calculation also affected his guideline range. An evidentiary hearing was granted.          In US V. Kirchner, 20-1304, (3d Cir. 4-22-21), the court vacated and remanded a white collar case where a dealer in coin replicas was indicted and convicted of counterfeiting and misleading customers. The Third Circuit vacated Kirschner’s 126-month sentence. While the district court was within its discretion to apply the abuse-of-trust and use-of-sophisticated-means enhancements, it clearly erred in applying the 22-level enhancement for loss, and the error was not harmless. While the court focused on what Kirschner intended to do with the high-value counterfeits, it never found that the government proved, by a preponderance of the evidence, that Kirschner intended to sell the coins as counterfeits (not replicas) for the prices the government claimed.           Be not afraid and let not your heart be troubled.   Federal Legal Center, Derek A. Gilna, JD, MARJ, Director, 113 McHenry Rd., #173, Buffalo Grove, Ill 60089 (and Indiana) dgilna1948@yahoo.com; "Derek Gilna's Criminal Justice Musings and Reflections."

BOP Director Grilled by Congress on COVID-19 Failures, Hints at Possible Releases

 Has DOJ  Relaxed Internal 50% Rule Requirement for CARES Release? 

 Mixed Signals Confuse Prisoners, Staff.

 

by Derek Gilna

 

            A press release by a respected prisoner advocacy organization electrified  prisoners and their families in the past week by stating the following: "We’re grateful that that the new administration heeded the widespread calls to make more people eligible for home confinement...The original criteria were too narrow. These changes will protect vulnerable people in federal prisons."

            Great news, if it is true.  There is one small problem: no official memo has been released to the public as of today, so it remains officially "Unconfirmed.".

            Despite this confusion, there is a lot of good news to report. Senate Judiciary committee members this week grilled the federal prison director on a variety of significant issues. Some of the highlights: (1. DOJ has NO  immediate plans to send thousands of inmates released to home confinement during the COVID-19 pandemic back to prison. "We're going to use good judgment and common sense and work within the law," and not "arbitrarily" disrupt peoples' lives by forcing them to return to prison.  Senators noted that only three (3) people released on home confinement have been rearrested. (2. The director confirmed that the state of emergency needed to continue CARES releases was extended by the President. (3. Senators blistered the director for continued COVID prison outbreaks and pressed him to do more to release medically-vulnerable prisoners, authority that DOJ already has.

            4. Senator Charles Grassley of Iowa noted that the notoriously opaque agency has not responded to his one-year old letter of inquiry, and chastised the agency for what he called the misinterpretation of the spirit of the First Step Act's  PATTERN program, saying that it was unduly restrictive. He promised further review of PATTERN implementation. 5. Finally, both Grassley, a Republican, and Richard Durbin, a Democrat and Chairman of the committee, presented a united, bipartisan front in holding the agency accountable.

            The non-partisan Marshall Project said that the federal prison system, "remains opaque, having failed to report (COVID) positive tests and deaths, despite being responsible for more infections than any state prison system, and has no required testing or reporting of rate of infection for guards. 'People who work in prisons are an essential part of the equation that will lead to reduced disease and less chance of renewed explosive COVID-19 outbreaks in the future,' said Brie Williams, a correctional health expert at the University of California, San Francisco (UCSF).' tps://themarshallproject.us. However, at Bryan, more than 50% of staff have refused vaccinations.

            And the deaths continue to pile up. Most recently, two prisoner died  at MCFP Springfield, and one each at Ft. Dix, FCI Talladega, FPC Florence, and FCI Oakdale.

Others, like Coleman and Tallahassee, continue to suffer new cases, and the aftereffects of having "recovered" from COVID. FMC Rochester has two new cases, as well as hundreds of prisoners still suffering the after-effects of having been infected with COVID.

            Approximately 5,800 fully vaccinated Americans — out of 66 million who received the shots — still became infected ... according to the Centers for Disease Control and Prevention in data reported Thursday. People who are older or those with compromised immune systems may not be able to launch a robust immune response to the vaccine and build up enough antibodies to ward off infections, doctors explained. www.cdc.com. www.wsj.com, 4-16-21.

            I have my own opinions regarding the adequacy of treatment for COVID. Having been forced into close contact with medical professionals for many years on behalf of friends and family, I learned to ask blunt, specific, and embarrassing (annoying?) questions regarding what they know and do not know, and came to this conclusion: doctors DO NOT have all of the answers, especially when it relates to a new disease like COVID. Although there has been much research done on COVID, much remains to be learned. The reason that the usage of the Johnson and Johnson vaccine was temporarily paused, was not that it is any more dangerous than any other vaccine, but that the CDC felt it needed at least a week to educate medical professionals to make sure that they knew how to recognize and provide the proper treatment for very rare blood clotting side effect (6 confirmed cases out of millions of doses.)  If you do not have an allergy to vaccines, take the shot if offered.  Little attention has been paid to the long-term impact of Covid-19 on people of all ages who may be called survivors but who may need long-term health care or other support. Associated Press. “It’s important for us to say we don’t know. We don’t how to care for these people in the long-term,” said Dr. Dan Fagbuyi, a pediatric emergency medicine physician in Washington, D.C., and a former member of President Barack Obama’s National Biodefense Science Board, which handled public health emergencies involving Ebola, H1N1, Anthrax and other crises. “We really have to consider that. The U.S. health system simply isn’t prepared for the task of matching resources to the vastly complex and varying needs of the patients," said Dr. Robert Klitzman, professor of psychiatry at the Joseph Mailman School of Public Health at Columbia University in New York City. “These are patients that have needs that are only going to increase, and we need to be aware of them and begin to plan for them as early as possible,” he said.www.buffalonews.com, April 21, 2021.

            Unfortunately, the built-in medical treatment limitations in the federal prison system essentially means that serious life-threatening conditions-as well as COVID-often go undiagnosed, and untreated, resulting in death. FMC Carswell recently suffered yet another death from an untreated hernia which burst.

            Prisoner stimulus checks continue to be coming in slow for many. A federal judge issued a nationwide injunction ordering the processing of these checks, requiring all prisons to cooperate in their receipt and distribution.   However, remember that paper returns take longer to process. The first payments COULD be held for past-due child support, but not the second or third.   If you got the first two payments, you should automatically get the third. However, wait a month before re-filing a 2020 1040 for the most recent payment, since many checks and payments have not yet arrived for even people on the outside. Unless you have a secure home address, get the payment sent to the lockbox, not the prison address.   Do you want that guy in the prison mailroom handling your check?

            Federal Courts continue to grant First Step sentence relief for Compassionate Release, "Stacking" convictions, and reversing denials based upon 1B1.13(2) denials. US v Aruda, 20-10245, (9th Cir. 2021) 1B remand for resentencing; US v Maumau, 20-4056, (19th Cir., 2021) "stacking" relief affirmed; US v Russell, 19-12717, (11th Cir. 2021), CR granted. I strongly suggest that you also consider filing a clemency petition-we can help.

            Be not afraid, and let not your heart be troubled.

Federal Legal Center, Derek A Gilna, JD, MARJ, Director,113 McHenry Rd., #173, Buffalo Grove, Il   60089 , and Indiana, dgilna1948@yahoo.com,  for questions in Spanish; Spanish newsletter at federallc_esp@yahoo.com, blogging at "Derek Gilna's Criminal Justice Musings and Reflections."

           

Sentence Relief Continues to Be g=Granted by Federal Appellate Circuits; Prison COVID Updates; Pell Grants for Prisoners

 9th Circuit Joins 4th, 5th, 6th, 7th, and 10th In Extending First Step Act 3582 (c)(1)(A) Relief; Prisoners Can Get Pell Grants; DOJ Botches Prisoner COVID-shot Rollout

 

by Derek  Gilna           

 

            While Congress battles over trillion-dollar infrastructure proposals, another federal circuit has provided an additional path to sentence relief.  US v. Aruda, No. 20-10245 (9th Cir. April 8, 2021: "Aruda appeals from the district court’s order denying her motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i).  We hold that the current version of U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 1B1.13 is not an' applicable policy statement issued by the Sentencing Commission' for motions filed by a defendant under the recently amended § 3582(c)(1)(A).  Because the district court relied on U.S.S.G. § 1B1.13, we vacate and remand so that the district court can reassess Aruda’s motion for compassionate release under the correct legal standard...." 

            This followed the decision in US v. Shkambi, No. 20-40543 (5th Cir. April 7, 2021). "The question presented is whether the U.S. Sentencing Commission’s compassionate-release policy statement binds district courts in considering prisoners’ motions under the First Step Act (“FSA”). The district court said yes and dismissed Francesk Shkambi’s motion for lack of jurisdiction. That was wrong for two reasons. First, the district court did have jurisdiction. And second, the policy statement is inapplicable. We reverse and remand...."  These motions are NOT limited to only those individuals with chronic medical conditions that could be aggravated by COVID.                                                                     

          Prisoners will now be allowed to apply for federal student aid in the form of Pell grants after Congress rescinded a ban in place since 1994, PBS reports. The $1.4 trillion government spending bill Congress passed along with coronavirus relief includes a measure that restores Pell grant funding for those who are incarcerated in state and federal prisons.                                                                                                                        

          Unfortunately, it appears that more people who received the Moderna COVID-19 vaccine reported side effects than recipients of the Pfizer shot, according to a recent study for the Centers for Disease Control and Prevention released in the online journal JAMA. https://javajournal.com. According to analysis of reports from over 3 million vaccine recipients by the CDC, almost 70% of those who received the Moderna vaccine said they experienced an adverse reaction at the injection site such as pain or swelling, while about half reported side effects like chills or fatigue ."A greater percentage of participants who received the Moderna vaccine, compared with the Pfizer-BioNTech vaccine, (and) this pattern was more pronounced after the second dose," the researchers noted. www.cdc.com.   

                "The public understandably has been concerned about reports of rare, severe allergic reactions to the Moderna and Pfizer-BioNTech COVID-19 vaccines," said Dr. Anthony Fauci, the director of the National Institute of Allergy and Infectious Diseases, in a statement on Wednesday.        In data taken from Dec. 14, 2020 to Feb. 28, 2021, about 74% of Moderna recipients reported an adverse reaction following a single dose, with 82% reporting side effects after the second dose, compared to 65% of Pfizer recipients after the first dose and 68% after the second.  Of course, the main concern for prisoners is that they will not receive proper care from prison medical personnel, nor have the opportunity to obtain over-the-counter mediation to deal with the symptoms."    

             The National Institutes of Health recognized the issue of adverse reactions by announcing this week that it will conduct a clinical trial of allergic reactions to the COVID-19 vaccines from Moderna and Pfizer, specifically "to determine whether people who are highly allergic or have a mast cell disorder are at increased risk for an immediate, systemic allergic reaction" after receiving either vaccine.

            Many now accuse DOJ of quietly conducting numerous herd-immunity  experiments during the COVID-19 outbreak by mixing positive and negative prisoners. This follows on the heels of more accusations that Federal prison officials withheld more data about COVID-19 behind bars. Last month it removed from its coronavirus count prisoners who had tested positive but who have been released. This month the DOJ lowered the number of deaths it is reporting among people held in private prisons. COVID-19 and its new variants are still impacting many prison facilities.   From Coleman Low in Florida, we hear that there are 51 new cases, with 24 in quarantine in SHU, 31 in the chapel, with all 4 buildings locked down. From the women's facility in FCI Tallahassee, where one prisoner shared her diary from late February to the present. Although the virus appeared to have receded, she started having symptoms of no smell, no taste  dry cough, sweat, and nausea. Soon her whole unit was sick. "The officers don't even come and check on us, at all," she wrote. At least one lady, she said, "had some problems with her kidneys and other medical complications going on that this place wouldn't take care of." She caught Covid and is now in a hospital on a ventilator.

            Fewer than 20% of federal and state prisoners have received a COVID-19 shot, a new tally reveals. Complicating the equation are concerns about prison staff refusing vaccines in high numbers. Unlike prisoners, staff can receive vaccines from providers other than the corrections department, which can make staff levels difficult to track. Staff vaccination is particularly important, said Monik Jiménez, an assistant professor at Harvard University’s School of Public Health, because employees can travel between prisons and the outside community. She stressed that both staff and prisoners need high vaccine coverage in order to effectively reduce COVID-19 transmission. 

         Concern continues that COVID persists in the nation's jails and prisons and will continue to fuel infections in the surrounding communities. Assessing the relationship between imprisonment and the disease caused by the novel coronavirus is the subject of a December 2020 report by the Prison Policy Initiative (PPI), a nonprofit, non-partisan advocacy group dedicated to exposing the harmful effects of mass incarceration.

         The answer they found was shocking: From May 1 through August 1, 2020, there were 566,804 infections that could be traced to correctional facilities in the U.S.

         This estimate dwarfs the number of cases reported inside correctional facilities, which a database maintained by The Marshall Project estimated  around 68,000 during the three-month period. www.prisonpolicyinitiative.com.  

          Be not afraid, and let not your heart be troubled.

Federal Legal Center, Derek A. Gilna, JD, MARJ, Director

113 McHenry Rd.   #173, Buffalo Grove, IL   60089 (and Indiana)

dgilna1948@yahoo.com; blog at "Derek Gilna's Musings and Reflections."