First Step Act Prisoner Releases Continue to Climb

Number of Prisoners Released Under First Step Act (FSA)  Reaches the Thousands

by Derek Gilna

            According to Justice Department statistics, the number of prisoners released under FSA is accelerating. Over 3100 have been released as result of additional good time credits, over 2400 received reductions for retroactive crack  convictions, many of which have resulted in immediate release. There has been a four-fold increase in medical compassionate releases, and 2000 more released to home confinement.  New rules regarding education credits, resulting in end-of-sentence credits and quicker transfers into home confinement, and additional education programming, should also help.

            As your comments have confirmed, these reductions are butting up against the DOJ prison culture where confinement and punishment, rather than rehabilitation and recovery, are the primary focus. However, since many FSA benefits require continued "good conduct," it would be wise to confine your objections to what you feel are misinterpretation or mis-application of FSA to the administrative remedy process, as many institutions have not been fully briefed on proper FSA and PATTERN options.

            In the political arena, all remaining Democratic Presidential candidates have now issued their own justice-reform platform, all of which build on  FSA. This is GOOD news, since there are no political forces NOT pressing for further reform, other than the entrenched (and threatened) bureaucracy in the DOJ. 71% of the US favors more reform.

            In the circuits, the court in Hueso v Barnhart, 18-6299, (6th Cir.1-9-20),  the court denied 2241 habeas relief where Hueso argued that a 2255e finding was unnecessary, and that he was free to file a 2241, based upon the Wheeler decision in the 4th Circuit, setting this issue up for possible SCOTUS review. Take note of the following language, however: "We decide only that (he) cannot pursue (a 2241)..because his cited cases do not render a 2255...'inadequate or ineffective, '"  ONLY because he did not cite his cases during the pendency of his direct appeal, where he "could have cited in the ordinary course." Thus, the 2241 door remains open.

            In US v Dowthard, 18-2088, (7th Cir. 1-23-20), the court denied Rehaif relief, based upon the fact that he did not "assert that he would not have pleaded guilty if he properly understood the elements" of his ACCA conviction, and he was forced to rely upon "plain error" on appeal.

          In  Velazquez v. Fayette FCI, 937 F. ed 151 (3d Cir. 2019), the court held that there was inadequate representation of counsel where lawyer error had prevented him from entering a "guilty but mentally-ill plea," depriving him of a fair trial, with a hearing on mental issues being required. Have a good week, and let not your heart be troubled.

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

113 McHenry Rd., #173, Buffalo Grove, Il  60089,

(Also in Indiana)    dgilna1948@yahoo.com   

           

Shular Case Argued Before Supreme Court; BOP Program Statement Updates

Supreme Hears Shular Arguments;  Program Statement Updates, Clarifications

by Derek Gilna

            On a day where we take a step back and  honor we honor the great American civil rights icon, Martin Luther King, Jr.,  the struggle against injustice continues, one person and one case at a time.

            In the U.S. Supreme Court, (SCOTUS), Shular v. US, according to "SCOTUS Blog,  a case about the reach of the now infamous categorical approach to the Armed Career Criminal Act. ACCA imposes higher sentences on repeat offenders who are convicted of gun-related crimes. Under the categorical approach, courts look to the elements of the crime rather than a defendant’s actual conduct to decide whether the prior conviction triggers ACCA’s higher sentences"

            Shular’s case concerns the meaning of an ACCA provision that defines “serious drug offense.” In Section 924(e)(2)(A)(ii), Congress defined a “serious drug offense” to include an “offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance … for which a maximum term of imprisonment of ten years or more is prescribed by law.” After the Justices hear argument and review the pleadings, an opinion would be issued, which we fully expect to be positive for federal prisoners.

            We have received many inquiries about DOJ rules being issued to carry out the legislative mandates of the First Step Act (FSA). Generally, administrative agencies are permitted to issue rules where enacted laws might be short on details to clarify (but not change) the clear intent of Congress. DOJ does not appear to have done a very good job on this, especially where it relates to whether or not 841 offenses bar you from receiving FSA sentence credits.   Here is what FSA actually says:

            ‘‘(lxvii) Subparagraph (A)(viii) or (B)(viii) of section 401(b)(1) of the Controlled Substances Act (21 U.S.C. 841(b)(1)) or paragraph (1)(H) or (2)(H) of section 1010(b) the Controlled Substances Import and Export Act (21 U.S.C. 960(b)), relating to manufacturing, distributing, dispensing, or possessing with intent to manufacture, distribute, or dispense, or knowingly importing or exporting, a mixture of substance containing a detectable amount of methamphetamine, its salts, isomers, or salts of its isomers, IF the sentencing court finds that the offender was an ORGANIZER, LEADER, MANAGER, OR SUPERVISOR of others in the offense, as determined under the guidelines promulgated by the United States Sentencing Commission (emphasis added)."

            Unfortunately, in doing their risk assessments, DOJ at least some institutions has left out the last part in doing their assessment. Needless to say, the law, not DOJ rules, prevail in any court action. We welcome your inquiries on whether your particular offense excuses you from relief.  

            With the new "Over 60," "Compassionate Release," and so-called "Second Look,"  DOJ has adopted rules which essentially track the FSA text, but has added additional conditions to limit the statutory relief, which we feel should and will be challenged in court.  Have a good week, and let not your heart be troubled.

First Step Act Time Credits Roll Out Slowed by DOJ/BOP Bureaucracy

Earned-Time Credits Next on DOJ Agenda-But It is in No Rush to Implement Them

by Derek Gilna

            While the judiciary continues to put its stamp on portions of the First Step Act  (FSA),including Compassionate Release,  DOJ continues to struggle in its prompt implementation of the Earned Time Credits of FSA, and it is clear that the prison bureaucracy just isn't in a rush to do so. According to Bloomberg News,  all prisoners by the end of January should have undergone an initial assessment pursuant to implementing a new risk and needs assessment program pursuant to FSA. All those eligible should begin to be offered  recidivism reduction programming based on their identified needs by the end of the year.

            It appears that DOJ will be arguing that FSA programming will not EXPLICITY reduce sentences, but instead be used to increase pre-release custody (e.g., halfway house and/or home confinement).  In theory, these time credits can then be redeemed for early transfer into a halfway house, home confinement, or supervised release. Expect this narrow interpretation to be judicially challenged. We also await DOJ rules regarding rehabilitative programs that will lead to increased telephone and email time, expanded visitation, and more options at the commissary. We are currently reviewing recently issued proposed rules regarding increased home confinement under FSA.

            An area of interest to many is Hobbs Act robbery (HAR), which more courts are beginning to hold is NOT a crime of violence. Most circuits now hold that CONSPIRACY to commit HAR is not violent under 924(c),( Brown v US, 942f.3d 1069 (11th Cir. 2019), based upon US v Davis, applying Johnson II to the similar residual clause of 924(c), but also are using the same reason to set aside non-conspiracy HAR conviction . US v Chea (D Ca. 2019). Courts seem to be receptive to arguments that reject the conduct-specific approach rejected in Davis, and the Supreme Court would appear to be receptive to a challenge based on that argument also. We look forward to reviewing your specific facts to see whether you might qualify.

            The Sixth Circuit has found that having career offender status would not necessarily bar retroactive relief under FSA.   In our previously reported Beamus v US case,  19-5533, 2019 U.S. App. Lexis 34650 (6th Cir. 2019), the court mandated a resentencing, stating that the text of FSA "contains no freestanding exception for career offenders" (and) make retroactive the Fair Sentencing Act's changes to the statutory range for crack cocaine offenses."

            In US v Lockhart, -16-4441, (4th Cir. 1-10-20), the court held that plain error was established when he was not informed at sentencing of his possible exposure to ACCA penalties, which rendered his guilty plea involuntary, and forcing a resentencing.

            Have a good week, and let not your heart be troubled.

Federal Legal Center, Inc.

Derek A. Gilna, JD, Director

113 McHenry Rd.   #173

Buffalo Grove, IL   60089

(Also in Indiana)

dgilna1948@yahoo.com

BOP Resists First Step Changes on Seven Day Sentence Credit

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

by Derek Gilna

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

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

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

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

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

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

Federal Legal Center, Inc.

Derek A. Gilna, JD, Director

113 McHenry Rd.  #173,

Buffalo Grove, IL   60089

(Also in Indiana)

dgilna1948@yahoo.com

First Step Update and Prospects of New Year's Reforms

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

by Derek Gilna

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

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

What Happened In Washington This Week Makes Justice Reform More Likely

by Derek Gilna

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

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

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

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

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

            

First Step Act Can Maximize Community Corrections Time.

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

by Derek Gilna

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

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

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

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

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

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

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