FSA Motions Are Cutting Sentences, Lame Duck BOP DIrector Visits Aliceville, Ducks COVID-Infected Prisoners

 

Congress Returns to Work; Negotiations Continue on Major Sentence Reform Bills; US Attorneys Object to FSA Sentence-Reduction Motions, But Concede Their Legality; First FSA Sentence Credit Cases Hit the Courts; PATTERN Revisions in the Works; COVID Returns, Or Did It?; Appellate Updates

 

by Derek Gilna

 

            Congress returns to work after an extended Easter break to consider a package of three sentencing reform bills already approved on a bipartisan basis by the Senate Judiciary Committee. Senate passage of The First Step Implementation Act (S. 1014), the Prohibiting Punishment of Acquitted Conduct Act (S. 601), and the Covid-19 Safer Detention Act (S. 312) would make meaningful if incremental, progress toward a more just criminal legal system. The EQUAL Act has been endorsed by DOJ.  House passage of all of these bills has either happened or is expected, so the issue is WHEN the Senate leadership will bring it for a vote. I also feel that it is likely that there will be some grants of clemency after the November election, probably before Christmas.

            Sentence reductions are not only possible under First Step Act (FSA)-they are happening.    Even though US attorneys object (specifically to the "extraordinary and compelling circumstances" criteria),  they must concede that reductions are in order on career offender cases, because it is the LAW. If you have a career offender case where one or more of the predicate offenses no longer qualifies, you should strongly consider filing.

            The first court filings seeking FSA sentence credits of up to one year have begun to hit the courts, and are still in the early stage. The law is clear that FSA gave ALL non-violent, qualifying prisoners, no matter their security level, the right to those credits, so if you qualify for CARES (in no danger of ending in  the foreseeable future) or have an outdate in 2024,  you know whom to contact.  

            Congressional pressure continues for yet another change to PATTERN scoring. DOJ in a pending report to Congress said it would make no changes to how it evaluates violent recidivism risks, saying that measure provided an essential check for "public safety." Instead, the department shifted the boundaries between other risk levels for its general recidivism algorithm, and estimated that 36 percent more Black men and 26 percent more Hispanic men might now qualify as minimum or low risk, with smaller increases for Black and Hispanic women in prison. Advocates are still not satisfied.

            A prisoner post that perfectly sums up DOJ's ineffectual response to COVID and its non-response to the current BA.2 variant:  Writing from Aliceville where Carvajal made an appearance last Thursday with his entourage. He toured one unit, was apparently impressed with the shiny clean floors, swung by the rec yard, and then left... inmates were forced to power wash the compound at 4:30 am and wax the floors until 2 am for days on end to get ready. It was epic in its misguided priorities. No one was allowed to speak with him, of course, but there would have been no point in that anyway, since he didn't show care or concern of the last two+ years of COVID so he certainly does not now in the last month on the job. ...Meanwhile, BA.2 is racing through Aliceville - there are hundreds of people sick with all the symptoms... Since there is no testing, there is, de facto, no COVID here so they probably let it just rip through. "    Indeed, they will.         

Biden AWOL on Sentence Reform, But Clemency Appointment is a Step Forward

 

Biden Appoints New Pardon Attorney;  COVID Again Hits Federal Prison System; Opponents of Sentence Reform Fight Back, but Durbin and Grassley Stand Firm; Medium Pattern Scorers Have Legal Alternatives;  

by Derek Gilna 

            President Biden has appointed a new federal pardon attorney, who will oversee all pending Pardon and Clemency petitions. She is Elizabeth (Liz) G. Oyer, who before her Justice Department appointment,  according to DOJ,   served as "Senior Litigation Counsel to the Office of the Federal Public Defender for Maryland, where she represented indigent defendants at all stages of proceedings in federal district court [and] handled a wide variety of criminal cases, ranging from complex fraud to drug and gun offenses, as well as violent crimes."  This is an important development and may mean that we may start seeing some action shortly on the 18,000 pending petitions.  

            Currently pending in Congress is the FIX Clemency Act, which seeks a nine-person board that would be responsible for reviewing petitions for clemency and issuing recommendations directly to the president. The recommendations would also be made public in an annual report to Congress. At least one member of the panel would be someone who was previously incarcerated.

            Unfortunately, no sooner has OMICRON passed through the federal system than the BA.2 variant has now caused the transfer of several prisons back into Red status, which means masks, and more lockdowns. Coleman, Marianna, Carswell,   FMC Rochester, and Cumberland  have reported  numbers of active cases (From Cumberland: " FCI Cumberland had 71+ Covid-19 positive inmates and staff (6 staff) when I left a week ago on a transfer. Most all units were on lockdown.") The virus is present everywhere, but DOJ has had two years to perfect its COVID concealment skills, so true numbers will probably never be reported.    Unfortunately, much as the non-partisan Marshall Project stopped reported DOJ COVID numbers because of clear inaccuracies several months ago, the UCLA COVID Reporting Project, which has tracked correctional response to the virus for the past two years, also gave DOJ a failing grade,  for Overall Response, F, Data Quality, F, Reporting for Incarcerated People, F, and Reporting for Staff, F. https://uclacovidbehindbars.org/blog/march22scorecard, 4-18-22.

            Opponents of pending sentence reform bills are fighting back, much as they did prior to the passage of First Step (FSA) , but their recent outbursts are more a  sign of weakness than strength (same thing happened prior to passage of FSA). All of the pending bills have strong bipartisan support, and most  appear to have the votes to pass but must be called for a vote.    Biden and some Democrats are nervous about calling for the vote prior to the election, but after the election, chances of passage increase.  Remember that FSA also passed in 2018 AFTER the Congressional elections.

            The First Step Implementation Act, sponsored by Sen. Chuck Grassley, R-Iowa, seeks to correct an oversight in the original FSA. In passing First Step  in 2018, Congress affirmed that some mandatory minimums for drug offenses and “stacking” of charges were unjust and resulted in sentences that do not advance public safety. The Safer Detention Act would provide ill and elderly people in prison a vital path to release or home confinement, and would cover those convicted prior to 1987.  The Prohibiting Punishment for Acquitted Conduct Act would prohibit judges from considering information regarding acquitted acts during sentencing — an important protection against government overreach. 

            I have received dozens of questions similar to this one: " the question that every one in here would like to know is can the people with a high recidivism (get)  F.S.A time credit and get the 10 days off for every 30 days of programming...case managers here told us that people with a  high recidivism can't- they would have to go down to a low but I never read anything saying that..." Precisely, because there is NOTHING in FSA that prohibits you from getting those credits.   This also could be challenged in court, but I would definitely exhaust remedies on this before you make the attempt, and you should be within two years of release OR near 50% of time served (for CARES consideration) if you are contemplating this action. 

EQUAL Act Moves Closer to a Vote, Mental Health Issues As Grounds for Compassionate Release

 

Former Public Defender Ketanji Brown Jackson Confirmed as Supreme Court Justice; Signs Point to Early Vote on EQUAL, As  Pressure Also Grows for Marijuana Legalization; Optimism Increases for  Other Reform Bills;  Mental Health Issues as a Reason for Compassionate Release; Appellate and COVID Updates 

by Derek Gilna 

            The aggressive  and often misleading confirmation hearing questioning of now Justice Ketanji Brown Jackson by certain Republican senators showed  that some of our elected representatives (and the public) need to learn more about the seamy reality of the current  "justice " system.  Justice Ketanji-Brown', with her education, dedicated public service,  as well as her obvious dignity, humility, and experience as a public defender, is just the person to educate them.  

            In Congress, pressure is building for votes on one or more of the pending justice reform bills. The COVID-19 fiasco in federal prison exposed to the public (and more importantly, Congress) the breathtakingly-inept and mismanaged system that wastes hundred of millions of dollars,  causes unnecessary misery, and sometimes even  death. Congress (and the courts) realize that DOJ is in denial that First Step is the law of the land, and that provisions like the programming and employment sentencing credits MUST be applied in a timely fashion. The pass of EQUAL and other pending legislation will be a good start to show them the error of their ways. We can assist you in taking advantage of these sentence-shortening opportunities.

            There is also new optimism that perhaps at least some provisions of the MORE Act can be passed in this session. More states are either legalizing recreational usage, and the public clearly is in favor of full legalization. If the bipartisan justice coalition that came together to pass First Step again comes together, led by Senators Durbin and Grassley, it bodes well for passage of the other pending bills..

            Mental health issues, even in the absence of other serious medical issues, have been found to be grounds for compassionate release. See: United States v. Rodriguez, 2020 WL 4592833, at *1 (S.D. Cal. Aug. 5, 2020), for a prisoner at FCI Victorville Medium II, serving an 86-month sentence, serving since 2017 (32 months), who was non-violent, with “32 months in custody… is far more time than she has ever served before and will likely act as a deterrent.” The decision cited prison conditions of prison, the mental health consequences of continued incarceration in the midst of a global pandemic that  place further stress on the body and immune system, and stated that,  “Major depressive disorder, or clinical depression, causes stress, which impairs the immune system against viral infections, such as COVID-19.” Courts have found mental health conditions to contribute to extraordinary and compelling reasons warranting compassionate release. See, e.g., United States v. Lavy, 2020 WL 3218110, at *5 (D. Kan. June 15, 2020) (finding associations between major depressive disorder and “atypical immune responses”); United States v. Johnson, ––– F. Supp. 3d ––––, ––––, 2020 WL 3041923, at *10 (D.D.C. May 16, 2020) (finding extraordinary and compelling the movant’s PTSD combined with his physical illness).

            In United States v. Gudino, 2020 WL 7319432, at *1 (N.D. Cal. Dec. 11, 2020)defendant was sentenced to 140 months,  served 78 months, and was 44 years old, obese, and suffered from shortness of breath, tuberculosis, and anxiety. The government agreed that “[p]ersons suffering from mental health and anxiety have been identified by the World Health Organization as standing a higher risk of severe infection and even death from COVID-19.” Id.

            In United States v. Lavy, 2020 WL 3218110, at *1 (D. Kan. June 15, 2020). The prisoner at Forrest City Low FCI, had Bipolar, depression, hypertension, and was 58 years old. “But the CDC has not yet determined whether hypertension alone renders an individual particularly vulnerable to severe illness stemming from COVID-19. The Court therefore considers Defendant’s age and hypertension in connection with his two mental health diagnoses, bipolar disorder and major depressive disorder.” The Court found that there is scientific support linking bipolar disorder and immune system dysfunction. And there is at least some indication that a substantial subset of individuals with major depressive disorder and bipolar disorder exhibit atypical immune responses. Michael Maes & Andre F. Carvalho, The Compensatory Immune-Regulatory Reflex System (CIRS) in Depression and Bipolar Disorder, 55 MOLECULAR NEUROBIOLOGY 8885 (2018)Joshua D. Rosenblat & Roger S. McIntyre, Bipolar Disorder and Immune Dysfunction: Epidemiological Findings, Proposed Pathophysiology and Clinical Implications, NAT’L INST. OF HEALTH (Oct. 30, 2017), https://doi.org/10.3390/brainsci7110144.

            The issue of compassionate release becomes even more critical for those thousands of prisoners in all institutions whose routine medical care and outside testing is STILL being delayed by the excuse of COVID. Word from Pekin that a woman who complained repeatedly of heart issues succumbed this past week, and unfortunately, I am afraid that she won't be the last.

BOP Continues Slowdown on FSA Credits; ACCA in the Spotlight as Supreme Court Grants Remands in Three New "Wooden" Cases

 

Equal Act Awaits a Senate Vote; House Passes Marijuana Bill, Senate Vote Next; FSA Credits Still Inexcusably Delayed; Some Hard Truths About the Prison Bureaucracy: Additional Support for "Acquitted Conduct" bill;  COVID, Appellate Updates

 

by Derek Gilna

 

            The recent Wooden case, which saw the U.S. Supreme Court again chip away at draconian ACCA punishments, resulted in three  litigants who recently filed petitions for cert before the court on Wooden facts being granted summary relief. The high court granted cert, reversed,  and then remanded  to the lower courts for resentencing: "20-7617, LEWIS, WILLIE L. V. UNITED STATES; 20-7798  WILLIAMS, CHRISTOPHER V. UNITED STATES; 21-6448 BROWN, JOSEPH D. V. UNITED STATES." If you have not already contacted me about whether your factual situation qualifies for possible Wooden relief, now would be a good time.  

            Last week the EQUAL Act, which passed the House last year, won its 60th co-sponsor, which in practical terms means that it only requires the Senate Majority leader, democrat Chuck Schumer, to call it for a vote. Almost one in twenty federal prisoners would benefit from this legislation when it becomes law.    According to the U.S.  Sentencing Commission, "  approximately 827 (new) offenders each year would benefit from this section of the bill. The current average sentence ... is 74 months. The estimated new sentence for those offenders would be 43 months. Retroactive Impact: Approximately 7,787 offenders ...would be eligible to seek a modification of their sentence based on this section of the bill...up to 7,644 offenders would receive a reduction in their sentence. The current average sentence for these offenders is 173 months. The estimated new sentence for these offenders would be 100 months."  Once again, a well-drafted motion will help unlock this relief when the bill becomes law.

          By a narrow vote of 220-204, the House of Representatives on Friday passed the Marijuana Opportunity Reinvestment and Expungement Act (MORE), a measure that decriminalizes marijuana under federal law. Almost all Democrats supported the legislation, but almost all Republicans opposed it.  It is not expected to pass an evenly-divided Senate. Of course, that's what was originally said about FSA, and more recently the EQUAL Act, so stay tuned.

            Although bipartisan action on FSA and EQUAL is encouraging, the contentious  partisan divide on MORE and during  soon-to-be-justice Brown's high court confirmation hearings, that focused on spurious criticism on her relatively mainstream views on below-guidelines sentencing on  most non-contact SO offense, more work remains to be done.

            While Congress is focused on those hearings, and the war in Ukraine, DOJ is busying itself with devising even more delays in executing Congress' clear mandate to give people incentives to leave prison and not come back. Make no mistake: Congress is completely fed up with DOJ and its subordinate agency mismanaging the federal prison system, and is waiting for the appropriate moment to show its displeasure. With the resignation of its director (who continues in the job until a successor with a lot of patience is found), regional offices and wardens are taking the opportunity to pump the brakes on reforms that are already law. For those of you who fear taking judicial action because "my counselor/case manager might get mad at me," I say: you are already in prison, and the outside world, (with millions of jobs available), and your family beckon.

Unfortunately, although there are some good people, good is a relative term, and the bureaucratic culture grinds them down.  Remember, truth is in very short supply when  even "good" staff discuss any of these reforms that might reduce the number of customers that ensure their continued employment and accruing pension balance.

There is absolutely no evidence in any prison that DOJ is ready for the next COVID wave, or a solution to its many obsolete and decaying facilities.   Regardless of the severity of this "next wave,"  there is no "Action Plan" on the horizon to deal with it. There is already an outbreak of a form of virus in the men's prison at Seagoville, and the women's facility in Pekin, that often results in a rash, shortness of breath, and increased infections.        Rom the Baltimore Sun: "To comport with constitutional requirements and respect the role of juries, Congress should require aggravating factors that would put a sentence above a guidelines range to be found by a jury beyond a reasonable doubt, and should preclude judges from enhancing a sentence for conduct that a jury acquitted the defendant of committing. And Congress should harmonize the long list of factors that judges are to consider at sentencing, factors that often conflict and that frankly can be used by a judge to rationalize almost any sentencing utcome."https://www.baltimoresun.com/opinion/op-ed/bs-ed-op-0328-sentencing-guidelines-jackson-20220325.                 Add to the growing list of vaccine problems a newly-released studies that shows that the COVID vaccines can cause serious side effects.: "Using the PULS cardiac test, researchers have found Pfizer and Moderna mRNA COVID shots dramatically increase biomarkers associated with thrombosis, cardiomyopathies and other vascular events following vaccination  Pre- and post-injection PULS tests for 566 patients were compared. On average, their PULS scores went from an 11% five-year risk for acute coronary syndrome, to a more than double, 25%, five-year risk...We conclude that the mRNA vaccines dramatically increase inflammation on the endothelium and T cell infiltration of cardiac muscle and may account for the observations of increased thrombosis, cardiomyopathies, and other vascular events following vaccination.” ~ Circulation Magazine,  November 16, 2021.                               In US v. Burris, 19-6122, (10th Cir. 3-20-22), In 2004, Defendant-appellant Tony Burris pleaded guilty to possession with intent to distribute crack cocaine, and the district court sentenced him to 262 months in prison, the low end of his sentencing range under the United States Sentencing Guidelines. After Congress passed the Fair Sentencing Act of 2010, which addressed sentencing disparities between crack and powder cocaine, and made those changes retroactive in the First Step Act of 2018, Burris moved for a reduced sentence. The government opposed the motion, arguing that Burris’s Guidelines range remained the same because the calculation should have been based on the larger quantity of crack cocaine attributed to Burris in the Presentence Investigation Report (PSR) rather than the smaller amount charged in the indictment. Recognizing that the parties raised an issue that had not yet been addressed by the Tenth Circuit, the district court declined to resolve it, instead exercising its discretion to deny relief regardless of the correct Guidelines calculation. The Tenth Circuit held the district court was obligated to calculate Burris’s revised Guidelines range before exercising its discretion to deny relief, and that the error was not harmless. Judgment was therefore reversed and the matter remanded for further proceedings.            In US v. Kirilyuk, 19-10447, (9th Cir., 4-1-22), Defendant was convicted of 28 felony offenses in connection with a fraud conspiracy involving 120,000 American Express Cards. In sentencing Defendant to 27 years’ imprisonment, the district court relied in part on Application Note 3(F)(i) to U.S.S.G. Sec. 2B1.1 (“the Application Note”), which provides that the “loss” amount for the use of counterfeit credit cards must at least $500 per credit card used. Using this multiplier, the district court applied a 22-level enhancement.  The Ninth Circuit vacated Defendant’s sentence. Under Stinson v. United States, 508 U.S. 36 (1993), an Application Note is authoritative unless it is “inconsistent with, or a plainly erroneous reading of, that guideline.” Thus, if an Application Note conflicts with the Guidelines, the Guidelines must be given effect over the Application Note. Defendant’s fraud scheme involved charging $15 to $30 per card, resulting in actual losses of $1.4 million. However, the use of the Application Note calculated the loss amount to be $60 million. Here, the Ninth Circuit found that the Application Note’s multiplier rule does not comport with the plain meaning of “loss,” and thus, Defendant’s 22-level enhancement based on the calculated $60 million loss cannot stand. The Ninth Circuit also found that the district court erred in sentencing Defendant to 264 months for each wire and mail fraud count when the maximum statutory penalty was 240 months.   Be not afraid, and let not your heart be troubled.   Derek Gilna, Director, JD, (De Paul Law School , 1975), MARJ, (Vermont Law School, 2020), Federal Legal Center, 113 McHenry Rd. #173, Buffalo Grove, IL   60089 (and Indiana); dgilna1948@yahoo.com (English newsletter and ALL inquiries, English or Spanish); (Alternate email: dagilna1948@yahoo.com, firststeprelief@yahoo.com). federallc_esp@yahoo.com, Spanish newsletter, but NO inquiries. Blog:  "Derek Gilna's Federal Criminal Justice Musings and Reflections."

EQUAL Act Move Closer to Vote; BOP Delay of Sentence Credits Imperils CARES Releases

 

BA.2 COVID Variant Accelerates in Eastern; U.S.Judge Ketanji-Brown Jackson Nears Confirmation to Supreme Court; Compassionate Release and Appellate Updates;

 

by Derek Gilna

 

            The Equal Act, which would finally abolish the disparity in crack-cocaine sentencing, moved closer to passage this past week when additional Senators, including notably Senate Majority Leader Chuck Schumer, signed on as Co-Sponsors. This effectively removed the last procedural obstacle to the bill's passage and becoming law, since floor leaders are reluctant to call a vote on a bill that lacks at least 60 votes, guaranteeing that it can overcome roadblocks thrown up by opponents of the bill. We can expect the law enforcement lobby (We're talking about YOU, Senator Cotton), to put up a fight, but it is no longer a question of IF, but WHEN the bill passes and the President signs it into law. Needless to say, we are ready to assist you in filing for the long-overdue sentencing relief.

            From Ashland, comes word of an unusually blunt official statement about when FSA sentence credits will be granted:  "We'll grant them when we get to it, regardless of what the law says." This is not noteworthy if you have many years remaining on your sentence, but could be critical if you are still trying to qualify for CARES consideration.

I feel that if you wish to fight for a prompt award of these credits that filing a memo to the warden (or the HW house administrator if you are on home confinement) requesting the application of these credits is sufficient. Congress in FSA already sidestepped the DOJ remedy process in permitting prisoners to get into court. (However, if you are well below 50%, there is not harm in filing remedies.)  

            Unfortunately for DOJ, courts frown upon administrative agencies not following the clear language of a law like FSA, especially one where the change clearly goes against Congressional intent, and the agency has not followed proper procedure to codify its  application of the law. The trend will  accelerate after the conservative Supreme  Court majority rules on cases currently before it which concern this same issue of agency overreach.

            Given that the criteria for CARES releasees appears to be highly subjective, how do you improve your chances of being selected? Thus far, there has been a clear (if unstated) connection between those who file compassionate releases and those selected for CARES, regardless of whether the initial court petitions are granted.. Of course, the more risk factors and the older you are, the greater your chances for success, but there have been many petitions granted outright even those who have been vaccinated, have few health risk factors,  have family members who need constant care, or whose sentences were too severe based upon objective analysis.

            See:  Release of Vaccinated: United States v. Wiman, No. 315CR00017RLYCMM, 2021 WL 4307013 (S.D. Ind. Sept. 22, 2021). granted relief despite holding in US v. Broadfield, which held that district courts can find there are no extraordinary and compelling reasons based on COVID-19 if there was vaccination.

Cited progression of Parkinson’s Disease and Dementia, Court found that Mr. Wiman “suffers from debilitating medical conditions that have reduced his ability to function in the correctional setting and have made his 6 years in prison more grueling than they would otherwise have been.”

            Family Circumstances: United States v. Sprouse, 2021 WL 3709936, at *2 (N.D. Ohio Aug. 20, 2021)."Defendant Benjamin Sprouse with the assistance of his counsel shall arrange to attend his son’s state court hearing through video conference on September 2, 2021. If Sprouse provides the Court with proof from the state court indicating that he is likely to get primary custody of his son, then such proof will be enough to demonstrate extraordinary and compelling reasons warranting release, provided that he could demonstrate that he has a release plan including a place to live for him and his son, means for income, and support."

            Excessive Sentence: United States v. Chandler, 5:99-cr-40044-HLT (D. Kan. Aug.  27, 2021), was based on sentencing changes that removed the additional criminal history point based on recency of criminal history, also 404 section, changed Guidelines section, and the lengthy amount of time served, and rehabilitation.

            On the COVID front, at least 40 countries have detected the BA.2 variant, including the U.K., Denmark, India, Sweden, Singapore and the Philippines. Research has suggested BA.2 is similar to an earlier Omicron version when it comes to the risk of hospitalizations and developing severe disease. But research also indicates BA.2 spreads more easily. William Hanage, associate professor of epidemiology at the Harvard T.H. Chan School of Public Health, said, “It’s going to come here, it’s going to do stuff.”  https://wallstreetjournal-ny-app.newsmemory.com/?publink=0706325bb_13483c9.

          As with OMICRON, the effects will be much more severe in the prison environment, as noted by the CDC on numerous occasions, among both vaccinated and unvaccinated, regardless of whether you have received a booster. More studies are being published speaking to serious health issues for those who contracted COVID. “We’re finding out more and more that it’s not only respiratory problems or brain fog or only fatigue,” says Ziyad Al-Aly, chief of research and development at the VA St. Louis Health Care System and a clinical epidemiologist at Washington University in St. Louis, who led the study. “There are heart manifestations, and clearly diabetes and kidney manifestations. ”People who recovered from Covid-19 within the past year are 40% likelier to receive a new diagnosis of diabetes than those who weren’t infected, a study found. https://www.wsj.com/articles/new-research-shows-higher-risk-of-developing-diabetes-after-covid-19-infection-11647906138?mod=djem10point.

            A small batch of documents released by the U.S. Food and Drug Administration in mid-November 2021 revealed that in the first three months of the COVID jab rollout, Pfizer received 42,086 adverse event reports that included 1,223 deaths

The first really large tranche of Pfizer documents — some 10,000 pages — was released by the FDA March 1, 2022. Included are nine pages of recorded side effects, about 158,000 different health problems in all.https://www.theepochtimes.com/newly-released-pfizer-documents-reveal-covid-jab-dangers_4355020.html.

    One of the unexpected byproducts of former public defender Judge Brown's Supreme Court confirmation hearings has been a renewed discussion of SO sentencing practices, and the fact that judges are beginning to understand that the sentencing guidelines are too high, and manifestly unjust. Perhaps the public will start to appreciate that it is not just SO guidelines that are unjust, and often, just illogical. It appears that she will be confirmed, and we wish her well.

In the circuits, in US v. Garner, 21-30260, (5th Cir. 3-21-22), the Fifth Circuit vacated defendant's sentence for one count of possession of a firearm by a felon, holding that defendant's prior conviction for aggravated assault with a firearm under Louisiana state law, La. R.S. 14:37.4, is not categorically a crime of violence as defined in the Sentencing Guidelines. The court examined an amendment to La. R.S. 14:37.4 and reviewed Louisiana state court's application of the amended statute, concluding that it is clear that aggravated assault with a firearm can still be committed negligently in Louisiana. Accordingly, the court remanded for resentencing.         In US v McIntosh, 20-5089, (10th Cir. 3-21-22)), Defendant-Appellant John Michael McIntosh pled guilty to five counts of robbery, plus three counts of brandishing a pistol during those five robberies. During the change-in-plea hearing held by the district court, however, McIntosh repeatedly expressed doubts about whether he should plead guilty and suggested that his mental capacity was impaired. After off-the-record discussions with the government, he finally went forward with the plea and the district court completed its plea colloquy. But two months after entering the plea, McIntosh moved to withdraw it, contending that the plea was neither knowing nor voluntary and therefore violated his constitutional due process rights. The district court denied the motion and accepted the plea agreement at sentencing. McIntosh appealed, arguing that the plea was constitutionally invalid, and in the alternative, that the denial of his motion to withdraw the plea was an abuse of discretion. After review, the Tenth Circuit found that the district court failed to ensure the plea was knowingly and voluntarily made, so it vacated McIntosh’s convictions and remanded for further proceedings.   Be not afraid, and let not your heart be troubled.   Derek Gilna, Director, JD, (De Paul Law School , 1975), MARJ, (Vermont Law School, 2020), Federal Legal Center, 113 McHenry Rd. #173, Buffalo Grove, IL   60089 (and Indiana); dgilna1948@yahoo.com (English newsletter and ALL inquiries, English or Spanish); (Alternate email: dagilna1948@yahoo.com, firststeprelief@yahoo.com). federallc_esp@yahoo.com, Spanish newsletter, but NO inquiries. Blog:  "Derek Gilna's Federal Criminal Justice Musings and Reflections."

BOP Stalls FSA Credits, Continues to Hide COVID Malfeasance, Sexual Abuse of Female Prisoners

 

Wooden Decision Shows Criminal Justice Reform Now Carries a "Conservative" Face; DOJ stalls FSA Sentence Credits, but  Will No Longer Assert Plea Waivers in Compassionate Release Filings; Feds and DOJ Want Us to Forget About COVID Hypocrisy, but That's Won't Happen;  Assault on Delayed Sentence Credits and PATTERN set to begin;  FLC Strikes Back Against Prison Censorship; Beware Feds' "Round Up the Usual Suspects"  Surveillance Schemes; Appellate Updates

 

by Derek Gilna

As Biden drops the ball on criminal justice reform by letting the DOJ bureaucracy run the show, conservative justices on the US Supreme Court issued a unanimous  landmark decision in Wooden that struck a blow against ACCA, and even more importantly showed that the court will reward common sense arguments on obvious  criminal justice injustices. Wooden was convicted as a felon in possession of a firearm, 18 U.S.C. 922(g). The Armed Career Criminal Act (ACCA) mandates a 15-year minimum penalty for section 922(g) offenders with at least three prior convictions for specified felonies “committed on occasions different from one another.”            Wooden had 10 burglary convictions arising from a single episode in 1997, during which Wooden unlawfully entered a one-building storage facility and stole items from 10 different storage units. The application of ACCA’s penalty enhancement to Wooden’s 922(g) sentence resulted in a sentence of almost 16 years. The Sixth Circuit affirmed. The Supreme Court reversed.           These 10 burglary offenses did not occur on different “occasions” and count as only one prior conviction under ACCA. An ordinary person using language in its normal way would describe the entries into the storage units as happening on a single occasion. An occasion may encompass multiple, temporally distinct activities. The government’s contrary view could make someone a career offender in the space of a minute. Whether criminal activities occurred on one occasion or different occasions may depend on several circumstances, including timing, location, and the character and relationship of the offenses. Congress’s amendment of ACCA to add the single occasion requirement was based on its belief that a person who robbed a restaurant and did nothing else, is not a career offender. The burglary of a single storage facility does not suggest the “special danger” posed by an “armed career criminal.”          This caseis  important not just for future ACCA cases, but in the reasoning certain justices used in their  separate, but concurring opinions. Justice Kavanaugh  showed interest in mens rea, which bodes well for the pending cases involving doctors federally prosecuted for over-prescribing opiods turns on mens rea matters.  Justice Gorsuch revealed himself as a liberty lover:  "any, reasonable doubt about the application of a penal law must be resolved in favor of liberty...But where uncertainty exists, the law gives way to liberty...If the law inflicting punishment does not speak 'plainly' to the defendant’s conduct, liberty must prevail."           Needless to say, you are doing your self a disservice if you not yet considering using cases like Wooden, and others, under  the First Step Act, to attack various aspects of your long sentence, including not just ACCA but Career Offender cases, and every case where co-defendants or others similarly situated received radically lower sentences than you. I am happy to assist you in these endeavors.        Another area of concern is expediting the posting of FSA credits, especially since getting those credits in a timely fashion will put thousands of people over the 50% threshold for CARES consideration.    There is NO FSA provision that gives DOJ the right to deny these sentence credits to qualified RDAP graduates, or any other qualified prisoner,  and all credits were due to be posted in January. To commence your action for relief, you must send an email to the warden asking for the sentence credits.    If that request is rejected (or ignored), you should start the administrative remedy process as a backup, although I do not believe that since this is a statutory violation of First Step, that you need to exhaust remedies to proceed. Remember, though that CARES rejections are not judicially reviewable.   However, DOJ will no longer enforce plea waivers contained in plea agreements against individuals seeking compassionate release, after most advocates and many Senators termed that practice "unconscionable."         If any of you saw the State of the Union address in Washington recently, you proably marveled at all of the unmasked faces, after DC authorities conveniently ended the mask mandate, apparently for political purposes, since in the outside world, OMICRON cases peaked about a month ago, and hospitalizations and deaths have plummeted. However, in prison people are still falling ill, and being treated with DOJ's favorite all-purpose cure: confinement in the SHU, where you are punished for falling ill to a disease brought into the facility by staff. Countless thousands are suffering with untreated complaints of Long Covid.         Although cases have dropped, does anyone doubt that another wave of a new variant is not on the horizon? DOJ had no contingency plans for the last three waves, except denial, disorganization, and deflection, and is unlikely to plan any better for the next prison pandemic. Pfizer’s antiviral drug Paxlovid seems tailor-made for combating Covid-19 in prisons: It doesn’t require an intravenous infusion like other treatments. There are signs it could significantly reduce people’s ability to spread the virus. And it significantly cuts people’s chances of getting seriously ill or dying from Covid-19. But the drug isn’t being made available to the vast majority of federal prisoners, according to review of available data. The federal prison system has received just 160 doses of Pfizer's drug Paxlovid for the entire federal prison system, which houses more than 150,000 people. www.parsintl.com.        The other issue is the wake of destruction left in the federal prison by its deliberately indifferent  policies, which continue to this day, and will continue until Congress finishes its ongoing investigation of specific policies and prisons that resulted in hundreds of unnecessary deaths. The departed will NOT be forgotten.         Advocates and defense attorneys have noticed a considerable uptick of federal prison censorship, not only on CORRLINKS, but also on legal mail or legal publications and materials. A lot of this is, of course,  federal tail-chasing, since there is an unlimited supply of new email addressed available. Publications, like Prison Legal News (PLN) for which I have been  honored to write for over a decade, has also long fought censorship, and to all of you who have been unfairly blocked or censored, PLN has indicated to me that it will happily offer you  a free trial subscription. If PLN is censored, in violation of the First Amendment, courts have been  all too happy to award damages and attorney's fees.          Of course, defense attorneys are often overmatched when they defend you, and your best recourse is to file a 2255 habeas, alleging inadequate representation of counsel, within one year after your direct appeal is completed, something else that we can assist you with.          In US v Greemen, 19-41-4, (4th Cir. 2-28-22), Sitting en banc, the Fourth Circuit reviewed the prior panel opinion in United States v. Freeman, and held that, though this was a direct appeal without an intervening evidentiary hearing, the record was sufficient to establish that defendant received ineffective assistance of counsel at her sentencing hearing. Her lawyer had raised several meritorious objections to the PSR that significantly enhanced Freeman’s sentence but, inexplicably, he waived those before the hearing. The Court held that, based on the face of the record and despite the lack of an evidentiary hearing on the matter, Freeman received ineffective assistance of counsel.           The Court recounted how Freeman’s attorney failed to lodge meritorious objections to the PSR and in fact waived them at sentencing over Freeman’s concerns, which did not exclude pills associated with Freeman’s personal drug use and should have been lower. Counsel had also put all of his efforts into getting Freeman in a drug court program, but the record showed he clearly did not understand the requirements for getting her in the program. The Court concluded “that counsel had no strategic reason to waive straightforward legal arguments that could result in his client receiving approximately a decade less time behind bars in favor of a nonexclusive motion for entry into a diversion program.” Regarding prejudice, the Court said,  “the prejudice is manifest” since the Guidelines had been incorrectly calculated and  Counsel had been  “woefully” unprepared.          In US v Hope, 20-4420, (4th Cir. 3-9-22), The Fourth Circuit vacated defendant's sentence for knowingly possessing a firearm and ammunition, holding that the district court erred in finding that defendant's prior South Carolina convictions qualified as serious drug offenses under the Armed Career Criminal Act (ACCA). The court explained that South Carolina's definition of "marijuana," as defined in 2013, is broader than the definition of "marijuana," as defined by the 2018 Farm Bill in 21 U.S.C. 802, and thus there is no categorical match. Therefore, defendant's prior state convictions do not meet the definition of a serious drug offense and should not have triggered the ACCA minimum enhancement. Even if the court were to adopt plain error review, rather than de novo review, the outcome would be the same. In this case, the error affected defendant's substantial rights and the district court remanded.           Other good news to report is that there are over 10 million open jobs in the US, most paying over $15 an hour, and more concerned about filling a position with a hard-working individuals than any other factor. However, a new report on a previously unknown federal government surveillance program to sweep up financial transfers through apps and transfer companies is yet another example of government taking advantage of any tool in their bag of tricks to trip you up. From Louisiana Senator John Kennedy: "I BELIEVE AMERICA WAS FOUNDED BY GENIUS, BUT NOW RUN BY IDIOTS." Be not afraid, and let not your heart be troubled.   Derek Gilna, Director, JD, (De Paul Law School , 1975), MARJ, (Vermont Law School, 2020), Federal Legal Center, 113 McHenry Rd. #173, Buffalo Grove, IL   60089 (and Indiana); dgilna1948@yahoo.com (English newsletter and ALL inquiries, English or Spanish); (Alternate email: dagilna1948@yahoo.com, firststeprelief@yahoo.com). federallc_esp@yahoo.com, Spanish newsletter, but NO inquiries. Blog:  "Derek Gilna's Federal Criminal Justice Musings and Reflections."

CARES Releases Will Continue Indefinitely, Because Feds Don't want to Give Up Emergency Powers

 

Systemic Failures Create Needless Health Emergencies; DOJ Refuses to Follow the Law on FSA Sentencing Credits; Disturbing News on COVID Vaccine Side Effects; Appellate Updates

 

by Derek Gilna

 

            Although the First Step Act  (FSA) sentencing credits fiasco is the principal topic of this week's newsletter, permit me a moment to put to rest any fears that you might have that CARES releases will end soon.  Ending CARES means that the federal government gives up all of the emergency power that they unilaterally seized in 2020 during the initial COVID-19 outbreaks, and that is unlikely to happen until Biden leaves office in three more years. The recent relaxing of mask mandates is happening not only because of declining infections, but also because it is an election year.   Follow the votes, not the science.

            CARES also gives the federal prison system a badly needed tool to eliminate elderly, non-violent offenders, whom they clearly lack the ability (or the will) to properly care for. However, what the federal criminal justice machine gives in one hand, it generally takes away with the other. By slowing down earned FSA credits (capped at one year by statute), DOJ stabilizes a declining prisoner population, giving it time to build up its numbers with the expanding prosecutions of "national security," health care, and medical fraud, among others.

            Unfortunately for the shrunken prison staffs that haven't already resigned, retired, or been fired or prosecuted for misconduct, this means that they have a lot of dissatisfied individuals, who can read for themselves  that almost of all of them without serious violence or guns in their background should get at least a year off immediately. This is an area ripe for litigation, and if you are approaching or at the 50% mark, or your sentence ends in the next two years, it is time to get busy and start your remedies, although this might be one instance where, as an obvious statutory violation, would not require remedies to be exhausted to get into court.    I have yet to see a case that says an administrative agency has the power to negate the clear language of Congress. This very topic is currently in the US Supreme Court, and I expect a favorable decision on the limited power of administrative rule making of agencies like the federal prison system.     It is hard to overestimate Congress' disgust with that system, which operates as if it was above the law on a daily basis. As noted by the well-respected columnist Walter Pavlo, "A new BOP director has not yet been appointed, but one cannot be appointed soon enough to change the poor management and deception of those currently in charge. It will take a monumental effort to change an organization that is failing the prisoners it houses and the employees who are becoming increasingly frustrated."

            Supporting that opinion is the fact that federal prisons still continue to have levels of COVID infection that do not exist outside prison walls. Virtually no one dies in the outside world from COVID, although a few die that also have it, in addition to other serious health problems. However, in prison, numbers are still high, and deaths are still occurring. At Ashland for instance, which apparently has 200 cases, a staff member recently said to a prisoner, "'We are N0T going to test... just deal with it.' When someone does test positive now, that person is removed and nothing else is done..." FMC Rochester still has a major outbreak, and one prisoner recently passed away. From another prisoner: "Good afternoon. Fifteen women tested positive for COVID today at Alderson FPC." The nightmare ebbs and flows, but continues.

            As noted by Pavlo, "Hanlon’s razor is the adage that states, 'never attribute to malice that which is adequately explained by stupidity.'" What else can explain the continuing elevated numbers? It is no coincidence that the United States is both the country with the highest incarceration rate worldwide and at the same time leads the world in COVID-19 infections and deaths. Correctional institutions are Petri dishes of infection that spread the virus not only within the prison but to the communities in which they are located. According to a Center for Disease Control and Prevention (CDC) study undertaken in 2021, “... incarcerated populations have experienced disproportionately higher rates of COVID-19–related illness and death compared with the general U.S. population, due in part to congregate living environments that can facilitate rapid transmission ...” Interesting enough, the study by the CDC was conducted at FCI Texarkana in Texas.

            Three additional compassionate release cases to report: United States v. Epps, 2020 WL 7332854, at *1 (D. Conn. Dec. 14, 2020), regarding Brooklyn MDC. Prisoner had served 30 months of 40 month sentence, and had Obesity, Hypertension, Asthma;

United States v. Cervantes, 2020 WL 7353913, at *1 (D.N.M. Dec. 15, 2020), prisoner sentenced to 60 months, has served 40 months at FCI Mendota, suffered from Obesity, HPV, and lymphatic swelling; United States v. Way, 2020 WL 7397796, at *1 (E.D. Pa. Dec. 17, 2020), prisoner was 54 years old, had Pulmonary Sarcoidosis and Hypertension, and required to take Prednisone, which suppresses immune system.

            Unfortunately, evidence is building that there are many more adverse vaccine reactions than are being publicly reported. See the most recent study: " COVID-19 and All-Cause Mortality Data by Age Group Reveals Risk of COVID Vaccine-Induced Fatality is Equal to or Greater than the Risk of a COVID death for all Age Groups Under 80 Years Old as of 6 February 2022," by  Kathy Dopp, MS Mathematics and Stephanie Seneff, PhD 13 February 2022. "As of 6 February 2022, based on publicly available official UK and US data, all age groups under 50 years old are at greater risk of fatality after receiving a COVID-19 inoculation than an unvaccinated person is at risk of a COVID-19 death. All age groups under 80 years old have virtually no benefit from receiving a COVID-19 inoculation, and the younger ages incur significant risk. This analysis is conservative because it ignores the fact that inoculation-induced adverse events such as thrombosis, myocarditis, Bell’s palsy, and other vaccine-induced injuries can lead to shortened life span. When one takes into consideration the fact that there is approximately a 90% decrease in risk of COVID-19 death if early treatment is provided to all symptomatic high-risk persons, one can only conclude that mandates of COVID-19 inoculations are ill-advised. Considering the emergence of antibody-resistant variants like Delta and Omicron, for most age groups COVID-19 vaccine inoculations result in higher death rates than COVID-19 does for the unvaccinated."

https://www.skirsch.com/covid/Seneff_costBenefit.pdf 

In Shorter v. US, 21-2091, ( 7th Cir., March 3, 2022), Shorter pleaded guilty to possessing a stolen firearm, which he used to threaten a person who, unbeknownst to Shorter, was a U.S. Marshal. The district court sentenced him to 117 months’ imprisonment. In December 2020, with approximately one-and-a-half years remaining on his prison term, Shorter sought compassionate release, 18 U.S.C. 3582(c)(1)(A)(i), arguing that his hypertension and sickle cell disease made him more susceptible to a severe COVID-19 infection. The government noted that Shorter did not suffer from sickle cell disease, but only carries the sickle cell trait. The district court denied the motion, finding Shorter’s medical conditions did not qualify as extraordinary and compelling reasons to grant compassionate release and noting his serious criminal record. On appeal, Shorter argued that the fact that his hypertension was well-treated did not sufficiently address whether his condition increases his COVID-19 risk, that the district court ignored evidence that people with sickle cell trait are more susceptible to COVID-19, and that the court failed to consider his post conviction conduct. After the parties completed briefing, Shorter was released to home confinement, scheduled to end in May 2022. The Seventh Circuit dismissed the appeal as moot.              In US v. Asbury, 21-1385, (7th Cir. March 3, 2022), Asbury came to a controlled buy with 82.2 grams of 99% pure methamphetamine. He was charged with distributing at least 50 grams of the drug, 21 U.S.C. 841(a)(1), (b)(1)(A)(viii). The indictment alleged that Asbury had a prior conviction for a serious drug offense. The PSR, “reflecting reports from others,” proposed holding Asbury responsible for 15,819.3 grams of a mixture containing methamphetamine, plus 82.2 grams of the pure drug. When the judge asked whether the prosecution had any additional evidence, he was told that it did not. Rather than nail down the factual basis for the additional drug-quantity allegations, the court addressed whether the distribution of drugs other than those directly involved in the offense could be considered as relevant conduct, then adopted the PSR, raising Asbury’s offense level from 30 to 36, then added two levels for perjury, resulting in a guidelines range of 360 months to life. Had the offense level been 32, his range would have been 210-262 months. Because of Asbury’s prior conviction, his statutory minimum sentence was 180 months. The court addressed 18 U.S.C. 3553(a)’s factors, stating that any error in Asbury’s offense level, “would not affect my sentence," and imposed a 360-month sentence. The Seventh Circuit vacated and remanded for resentencing. The district court erred in calculating Asbury’s relevant conduct. The judge’s brief statement did not establish that the guideline error was immaterial.  Be not afraid, and let not your heart be troubled.  Derek Gilna, Director, JD, (De Paul Law School , 1975), MARJ, (Vermont Law School, 2020), Federal Legal Center, 113 McHenry Rd. #173, Buffalo Grove, IL   60089 (and Indiana); dgilna1948@yahoo.com (English newsletter and ALL inquiries, English or Spanish); (Alternate email: dagilna1948@yahoo.com, firststeprelief@yahoo.com). federallc_esp@yahoo.com, Spanish newsletter, but NO inquiries. Blog:  "Derek Gilna's Federal Criminal Justice Musings."