First Step Act Update

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

by Derek Gilna

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

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

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

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

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

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

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

Federal Legal Center, Inc.

Derek A. Gilna, JD, Director

113 McHenry Rd. #173

Buffalo Grove, IL   60089

federallc@yahoo.com

(847) 878-0160

Dimaya Circuit Split:

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

by Derek Gilna

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

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

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

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

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

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

Federal Legal Center, Inc.

Derek A. Gilna, JD, Director

113 McHenry Rd. #173

Buffalo Grove, IL   60089

dgilna1948@yahoo.com

(847) 878-0160

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

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


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

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

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

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

Supreme Court Updates

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

 

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

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

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

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

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

 

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

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

 

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

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

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

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

           

 

 

Obama Should be Celebrated for Criminal Justice Progress He Achieved

On Martin Luther King Day, Let Us Remember Obama's Accomplishments

 

            As the United States prepares to inaugurate a new President, it is time to look back at the last eight years and consider what they have meant to all federal prisoners.  Although we have not been shy in this space to express our disappointment in the President on the subject of broad sentence relief, we must not lose sight of his accomplishments that laid the groundwork for more progress in that area.

            First, although Obama will be remembered as the first African-American President, you would be hard-pressed to point to any one instance where he favored one segment of the population over another on the basis of race. He was elected by the people, and whether you supported him or not, that is a fact.

            Second, when you eliminate the media "noise" surrounding him, whatever your politics, you must applaud his basic decency as a husband, a father, and as a man. Whether you agree with his politics or not, his personal life has been completely free of scandal or innuendo, and he has been an excellent role model to all Americans whatever their race  and not just because of his unique background.

            Thirdly, Obama put all prisoners "on the map" of responsible public discussion. He was the first President in memory to visit a federal prison, and the optics of that visit will be helpful for years to come.  The BOP is the most publicity-adverse agency in the federal government, and its archaic management style only can survive in the absence of media attention to its practices. Obama blew that up, and there is no going back.

            Fourthly, one can not overstate the impact that over 1000 commutations and pardons had on public consciousness of the plight of prisoners, and every announcement of more executive mercy was more positive publicity for the cause of even more sentence relief. 

            Finally, it may be hard to understand when you are enduring the many daily  indignities of incarceration, but the general public IS aware of your situation, and is open to change, and is tired of footing the bill for excessive sentences.  People who voted for both Clinton and Trump think that the federal government does a poor job of managing ALL of its agencies, including the DOJ and the BOP. When the only people opposing sentence relief are the labor unions for assistant U.S. Attorneys, and prison guards, we see an opportunity for a serious disruption of the old way of doing business in the American "Justice" system."

           

Sentencing Reform's Success in 2017 May Depend Upon Faith-Based Groups

Faith-Based Coalitions Prepare to Weigh in on Sentence Reform in New Year

 

            After the past year, when the old political order was swept aside, traditional media discredited, and government institutions under renewed scrutiny by a skeptical electorate, we are not surprised that many organizations who failed to predict all of these upheavals are once again missing the newest trend in 2017 sentence relief hiding in plain sight. Many faith-based religious organizations, fresh from providing difference-making grass-roots support to the winning presidential candidate,  are preparing to take the lead in pressuring Congress to take action to reduce federal incarceration and recidivism.

            This process has already begun on the state level, as state officials come to realize that for-profit prisons and reentry facilities like halfway houses are just aren't getting the job done. Expect the new administration to strongly consider measures that get religious communities closely involved in the criminal justice system.

            The groundwork has already been set. The new administration has big plans for reducing the footprint of the federal agencies, none of which they are going to like. Put into an office by voters tired of the old, wasteful way of doing the people's business, they owe absolutely nothing to the federal bureaucracies,  and there are no more opaque or inefficient agencies than the BOP and the DOJ.

            .The harsh reality is that the previous administration, lauded by the media for its many  eloquent words supporting the concept of sentence relief, failed to take advantage of the fact that a majority of Congressmen and senators supported sentence relief. Yet, no sentence relief bills were even called for a vote.  Those votes are still there, and ready for executive leadership on measures that have broad bipartisan support, and support of an increasing number of religious organizations.

 

           In 2017, there will be an opportunity for faith-based groups of all denominations to

provide the leadership, initiative, and moral force to do their part to make sentence reform a reality, and thereafter accept the responsibility to  do whatever is necessary to make it successful.