Repost of June 7

 

DOJ Up to its Old Tricks, Seeks Additional Agents and Prosecutors to Curb "Domestic Terrorism"

 

by Derek Gilna

 

Biden's new-found appetite for criminal justice reform is being tested with a new federal Department of Justice (DOJ) initiative announced recently to fight "domestic terrorism," the newest DOJ crime "war." Criminal justice advocates like myself know that these wars end badly, with more federal employees justifying their existence and high pay by over-prosecuting or "manufacturing" crime.  (See the horrendous results of previous examples of federal prosecutorial overreach:  war on drugs; war on sex trafficking; Operation Playpen; Drug Stash Houses; not to mention prosecutions of "real estate fraud" and "medical provider fraud.") In all these instances, federal prosecutors used broadly-written federal statutes to magnify penalties for crimes that had previously been prosecuted on the state level.             Fortunately, a promising coalition of US Supreme Court justices is telling prosecutors that they have had enough with federal prosecutors' expansive interpretations of statutes, in the case of United States v Van Buren,  19-783, January 3, 2021. The 6-3 vote crossed ideological lines. Justice Amy Coney Barrett, for the majority, wrote that the Computer Fraud and Abuse Act could not be interpreted in a broad way to support the conviction of a police officer who accepted money from an FBI informant to search through a license-plate database. The court’s three liberals sided with three of its conservatives. The other three conservatives dissented.              There are no new developments on any of the Biden legislative initiatives currently sitting in Congressional Committees, as the Democrats wrestle with challenges passing their infrastructure and voting rights agenda, putting more pressure on advocates of clemency reform, which has assumed new importance.                        Various investigations, both internal and external, are quietly looking into the systemic failure of the federal prison medical system in dealing with the outbreak, management, and aftermath of COVID-19.   A March 2021 TRULINCS Survey by DOJ asked prisoners to rate that system. My guess is that upwards of 90% rated it "poor." Now what will DOJ (and Congress) do with that data? District court judges are now well aware of DOJ's medical system failures, and are still granting judicial relief, including the granting of 2241's, but only after your exhaust administrative remedies questioning institutional application of time-credits, and failures to offer timely medical care.                           Another area of investigation should be the inability of DOJ prison officials to stem the unconscionable introduction of both real and synthetic stimulants into its women's facilities, which is a threat to the health of all medically-compromised individuals in those facilities.   Why are authorities, who are well-aware of the problem, not taking action? This should be cited in any internal or external filings for relief, especially if DOJ claims that its "Action Plans" have reduced health threats to prisoners from COVID.                    Untreated post COVID complications have led to an epidemic of misery, with one Lompoc prisoner with high blood pressure, stage 2 kidney disease, and obesity complaining of nerve pain and tingling in both feet and both hands, now being designated for transfer rather than treatment. New CR petitions must emphasize the inability (and unwillingness) of DOJ to treat these lingering conditions.         There have been many favorable decisions in the circuits. In United States v. Abdulaziz, No. 19-2030 (1st Cir. June 2, 2021), the First Circuit vacated judgment imposing a five-year prison sentence upon Defendant for committing a federal firearms offense, holding that the district court erred in resolving what constitutes a "controlled substance" within the meaning of section 2K2.1(a)(2) of the United States Sentencing Guidelines," subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense." The First Circuit vacated the judgment below, holding that Defendant's Massachusetts conviction was not a conviction of a "controlled substance offense" within the meaning of that term as it was used in the version of section 2K2.1(a)(2) that was applicable at Defendant's sentencing.             In United States v. Jarvis, 20-3912, (6th Cir. June 3, 2021), In 1994, Jarvis was convicted of four counts of armed bank robbery, conspiracy, and five counts of using a firearm in furtherance of a crime of violence, 18 U.S.C. 2113, 371, 924(c). The court determined that his first 924(c) firearm conviction generated a statutory minimum sentence of five years and that his other four 924(c) convictions, repeat offenses, were each subject to a statutory minimum of 20 consecutive years and sentenced Jarvis to 85 years plus 11 years on his other convictions. In 2014, the Supreme Court clarified that for aiding-and-abetting liability under 924(c) a defendant must have “advance knowledge” that a firearm would be used. Jarvis successfully moved to have three 924(c) convictions vacated for insufficient evidence of advance knowledge. The district court resentenced Jarvis to five years for his first 924(c) conviction, 20 for his second, and 15 for his other convictions. The 2018 First Step Act amended 924(c), limiting the firearm convictions that count as repeat offenses.                  Also decided in the 6th Circuit was the white-collar case of US v Hack, 19-6278, (6th Cir. June 3, 2021).  Hack pleaded guilty to conspiracy to commit bank fraud, mortgage fraud, and wire fraud. The plea agreement contained an appeal waiver. In addition to terms of imprisonment and supervised release, the court ordered Hack to pay $803,420 in restitution to two mortgage companies, as required by the Mandatory Victims Restitution Act (MVRA), 18 U.S.C. 3664(f)(1)(A). The court set a payment schedule during Hack’s imprisonment and stated: Upon commencement of the term of supervised release, the probation officer shall review your financial circumstances and recommend a payment schedule on any outstanding balance. During his period of supervised release, Hack moved to modify the restitution order, citing “a one-time opportunity” to obtain financing and proposing to pay the mortgage companies $100,000 and $28,000 in lump sums, attaching declarations from the companies stating that they preferred lump-sum payments over incremental payments. The district court denied the motion, concluding that it did “not have the authority under the MVRA to modify its final Restitution Order into two reduced lump-sum restitution payments.” The Sixth Circuit affirmed, concluding that Hack’s plea agreement barred the appeal.              From Senator John Kennedy: "You can only be young once, but you can be immature forever." Be not afraid, and let not your heart be troubled.           Federal Legal Center,    Derek A Gilna, JD, MARJ, Director, 113 Mc Henry Rd. #173, Buffalo Grove, Ill 60089 (and Indiana) dgilna1948@yahoo.com (English newsletters and all inquiries, including Spanish), federallc_esp@yahoo.com (Spanish newsletter only); Blog: "Derek Gilna's Criminal Justice Musings and Reflections"

Department of Justice Seeks New "War" To Hire More Prosecutors to Counter Dubious Surge in "Domestic Terrorism"

 

DOJ Up to its Old Tricks, Seeks Additional Agents and Prosecutors to Curb "Domestic Terrorism"

 

by Derek Gilna

 

Biden's new-found appetite for criminal justice reform is being tested with a new federal Department of Justice (DOJ) initiative announced recently to fight "domestic terrorism," the newest DOJ crime "war." Criminal justice advocates like myself know that these wars end badly, with more federal employees justifying their existence and high pay by over-prosecuting or "manufacturing" crime.  (See the horrendous results of previous examples of federal prosecutorial overreach:  war on drugs; war on sex trafficking; Operation Playpen; Drug Stash Houses; not to mention prosecutions of "real estate fraud" and "medical provider fraud.") In all these instances, federal prosecutors used broadly-written federal statutes to magnify penalties for crimes that had previously been prosecuted on the state level.             Fortunately, a promising coalition of US Supreme Court justices is telling prosecutors that they have had enough with federal prosecutors' expansive interpretations of statutes, in the case of United States v Van Buren,  19-783, January 3, 2021. The 6-3 vote crossed ideological lines. Justice Amy Coney Barrett, for the majority, wrote that the Computer Fraud and Abuse Act could not be interpreted in a broad way to support the conviction of a police officer who accepted money from an FBI informant to search through a license-plate database. The court’s three liberals sided with three of its conservatives. The other three conservatives dissented.              There are no new developments on any of the Biden legislative initiatives currently sitting in Congressional Committees, as the Democrats wrestle with challenges passing their infrastructure and voting rights agenda, putting more pressure on advocates of clemency reform, which has assumed new importance.                        Various investigations, both internal and external, are quietly looking into the systemic failure of the federal prison medical system in dealing with the outbreak, management, and aftermath of COVID-19.   A March 2021 TRULINCS Survey by DOJ asked prisoners to rate that system. My guess is that upwards of 90% rated it "poor." Now what will DOJ (and Congress) do with that data? District court judges are now well aware of DOJ's medical system failures, and are still granting judicial relief, including the granting of 2241's, but only after your exhaust administrative remedies questioning institutional application of time-credits, and failures to offer timely medical care.                           Another area of investigation should be the inability of DOJ prison officials to stem the unconscionable introduction of both real and synthetic stimulants into its women's facilities, which is a threat to the health of all medically-compromised individuals in those facilities.   Why are authorities, who are well-aware of the problem, not taking action? This should be cited in any internal or external filings for relief, especially if DOJ claims that its "Action Plans" have reduced health threats to prisoners from COVID.                    Untreated post COVID complications have led to an epidemic of misery, with one Lompoc prisoner with high blood pressure, stage 2 kidney disease, and obesity complaining of nerve pain and tingling in both feet and both hands, now being designated for transfer rather than treatment. New CR petitions must emphasize the inability (and unwillingness) of DOJ to treat these lingering conditions.         There have been many favorable decisions in the circuits. In United States v. Abdulaziz, No. 19-2030 (1st Cir. June 2, 2021), the First Circuit vacated judgment imposing a five-year prison sentence upon Defendant for committing a federal firearms offense, holding that the district court erred in resolving what constitutes a "controlled substance" within the meaning of section 2K2.1(a)(2) of the United States Sentencing Guidelines," subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense." The First Circuit vacated the judgment below, holding that Defendant's Massachusetts conviction was not a conviction of a "controlled substance offense" within the meaning of that term as it was used in the version of section 2K2.1(a)(2) that was applicable at Defendant's sentencing.             In United States v. Jarvis, 20-3912, (6th Cir. June 3, 2021), In 1994, Jarvis was convicted of four counts of armed bank robbery, conspiracy, and five counts of using a firearm in furtherance of a crime of violence, 18 U.S.C. 2113, 371, 924(c). The court determined that his first 924(c) firearm conviction generated a statutory minimum sentence of five years and that his other four 924(c) convictions, repeat offenses, were each subject to a statutory minimum of 20 consecutive years and sentenced Jarvis to 85 years plus 11 years on his other convictions. In 2014, the Supreme Court clarified that for aiding-and-abetting liability under 924(c) a defendant must have “advance knowledge” that a firearm would be used. Jarvis successfully moved to have three 924(c) convictions vacated for insufficient evidence of advance knowledge. The district court resentenced Jarvis to five years for his first 924(c) conviction, 20 for his second, and 15 for his other convictions. The 2018 First Step Act amended 924(c), limiting the firearm convictions that count as repeat offenses.                  Also decided in the 6th Circuit was the white-collar case of US v Hack, 19-6278, (6th Cir. June 3, 2021).  Hack pleaded guilty to conspiracy to commit bank fraud, mortgage fraud, and wire fraud. The plea agreement contained an appeal waiver. In addition to terms of imprisonment and supervised release, the court ordered Hack to pay $803,420 in restitution to two mortgage companies, as required by the Mandatory Victims Restitution Act (MVRA), 18 U.S.C. 3664(f)(1)(A). The court set a payment schedule during Hack’s imprisonment and stated: Upon commencement of the term of supervised release, the probation officer shall review your financial circumstances and recommend a payment schedule on any outstanding balance. During his period of supervised release, Hack moved to modify the restitution order, citing “a one-time opportunity” to obtain financing and proposing to pay the mortgage companies $100,000 and $28,000 in lump sums, attaching declarations from the companies stating that they preferred lump-sum payments over incremental payments. The district court denied the motion, concluding that it did “not have the authority under the MVRA to modify its final Restitution Order into two reduced lump-sum restitution payments.” The Sixth Circuit affirmed, concluding that Hack’s plea agreement barred the appeal.              From Senator John Kennedy: "You can only be young once, but you can be immature forever." Be not afraid, and let not your heart be troubled.           Federal Legal Center,    Derek A Gilna, JD, MARJ, Director, 113 Mc Henry Rd. #173, Buffalo Grove, Ill 60089 (and Indiana) dgilna1948@yahoo.com (English newsletters and all inquiries, including Spanish), federallc_esp@yahoo.com (Spanish newsletter only); Blog: "Derek Gilna's Criminal Justice Musings and Reflections"

COVID Threat Lingers in Federal Prison: BOP Encouraged to Do More CARES Releases as Safer Detention Act Advances in Senate

 

Happy Memorial Day;   Remembering Our Nation's Fallen Heroes; Case Updates

 

by Derek Gilna

 

            Let us take a moment to remember and respect our fallen men and women who fought for the ideal of America as a place of freedom, equality, and hope, as well as those who served and continue to serve.   In the eloquent words of one of my clients, "I wanted to wish you a good Memorial Day weekend and day of observance. Many people take this day for granted outside as a Barbeque day and/or day off, even in prison; its thought of as a 'holiday meal' day. As a prior service combat veteran, I take this observance day to heart. Not just for the men and women who gave their all, but for the people who still serve and veterans who served with them. We may not be gone, but we are also a memory that forever is engrained in hearts."

          In Congress, there were signs of progress as the Senate Judiciary Committee on May 28, passed  the COVID-19 Safer Detention Act, by a bipartisan vote. (It is NOT yet a law.)  This will reform and broaden the Elderly Home Detention Pilot Program and compassionate release from federal prisons. According to Chairman Dick Durbin, "This legislation will give judges the same authority to review (DOJ) decision for the Elderly Home Detention program as they have for BOP's compassionate release (CR) decisions, and make other important changes to ensure these programs are used to safely reduce prison populations and protect inmates, prison staff, and their families." The bill now advances to the floor of the Senate to await a vote, with none scheduled for now. I do not expect this bill to be voted on or become law until the infrastructure and voting changes are either decided or dropped.

         In anticipation to this likely change in the law, for the past several weeks I have encouraged you to file administrative remedies to protest the stingy grants of CARES releases for qualified individuals who have served a significant portion of their sentences, had a good prison record, diligently pursued rehabilitation, and have health challenges and known COVID risk factors. Congress is clearly not waiting for DOJ to act, and is intent on giving judges another tool to release prisoners who are initially denied CARES releases. If DOJ follows the bureaucratic pattern of avoiding judicial defeats  by increasing grants of relief, as happened after the deluge of  CR court filings, this will vastly increase the pace of releases.

        And why not? The DOJ's own statistics, now widely publicized to the general public, show that the miniscule few who have violated the terms of their early-release is virtually a rounding error. This would change the face of federal prison forever, in a good way. DOJ would be encouraged to prepare prisoners for release and reintegration.   It would also spare prisoners from the "deliberate indifference" school of medical treatment, masked by deliberate "under-reporting" of serious medical conditions that appears to be a common practice at several "medical facilities," some of which are under  investigation.                                                                                                                           

      I do not expect any US Supreme Court decisions this week; those with criminal justice implications will either be released by the end of June, or relisted for the October, 2021 term.   However, there are plenty of positive appellate court cases to consider.

           In US v Murphy, 20-1411, (3rd Cir. 5-27-21),  Murphy was convicted of distribution and possession with the intent to distribute heroin and 50 grams or more of cocaine base and conspiracy. With a career-offender designation, Murphy’s Guidelines sentencing range was 360 months to life, and he was sentenced to 360 months. He sought resentencing under Section 404(b) of the First Step Act. A PSR addendum preserved the drug amounts and the career-offender designation and decreased Murphy’s sentencing range to 262–327 months. He objected to the drug amounts and the career-offender designation, arguing that the jury had only specifically found that he was responsible for 50 grams of cocaine base instead of the 595 grams in the PSR and that Maryland second-degree assault convictions were no longer career-offender status predicates. The district court concluded that the First Step Act did not permit reconsideration of either factor and sentenced Murphy to 210 months’ imprisonment. The Third Circuit vacated. The district court correctly refused to reconsider Murphy’s attributable drug amounts but Murphy was entitled to an accurate calculation of the Guidelines range at the time of resentencing, including whether he qualified for the career-offender enhancement based on the law at the time of resentencing.

            In US v Spencer, 19-2685, 19-2691, (8th Cir. 5-27-21), the court reversed the  court's denial of defendants' pro se motions to reduce their sentences under the First Step Act, and explained that Section 404(a) of the First Step Act says that covered offenses are those whose penalties "were modified by section 2 or 3 of the Fair Sentencing Act." Before the Fair Sentencing Act, defendants' crack-cocaine quantity—over 50 grams—triggered a 10-year minimum sentence. It now triggers a 5-year minimum sentence. The court concluded that the "statutory penalties for" one object of defendants' multidrug conspiracy offense "were modified" by section 2 of the Fair Sentencing Act, and that the statutory penalties for a drug-trafficking offense include all the penalties triggered by every drug-quantity element of the offense, not just the highest tier of penalties triggered by any one drug-quantity element. Defendants are eligible for resentencing.

            In US v Cook, 20-13293, (11th Cir. 5-27-21), the court vacated the district court's denial of defendant's motion for compassionate release. Defendant contends that his conditions of hypertension, latent tuberculosis, and obesity, create a high risk he will fall seriously ill or die should he contract COVID-19 in the midst of the unprecedented global pandemic. The court concluded that the district court failed to demonstrate that it considered the applicable 18 U.S.C. 3553(a) factors in denying relief. The district court's order includes nothing to suggest it considered, balanced, or weighed any of the factors supporting the grant of defendant's motion. Accordingly, the court remanded the matter for further proceedings.

            As a new COVID outbreaks hits FCI Beaumont, there is a new study from Dr. Michael Cohen, MD, "Pandemic Medical Update: Vaccines, Variants and More, " which states that, "A study publish this month in Lancet Psychiatry analyzed mental illness and physical disorders o the rain and nerves during six months following recovery from COVID infection.   They found substantial numbers of people had a wide variety of medical and mental health disorders following OCIVD-19.   Overall, about 12% of people recovered...had a new diagnosis of a neurological or psychiatric disorder.  For those who had more severe disease, 26% had a new neurological or psychiatric diagnosis...This is very troubling information..." www.pln.com, May, 2021, page 40.

            From Senator John Kennedy of Louisiana: " Our country was founded by geniuses, but it's being run by idiots."

            Be not afraid and let not your heart be troubled.

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

113 McHenry #173, Buffalo Grove, IL   60089 (and INdiana)

dgilna1948@yahoo.com, (Spanish questions welcome)

Spanish newsletter: federallc_esp@yahoo.com

Blogging at:   "Derek Gilna's Criminal Justice Musings and Reflections"

           

 

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."