Tuesday, November 24, 2015

The Return of Issues Pending

After a brief hiatus (mea culpa), the Issues Pending document has been updated and is back on track. What is the Issues Pending document, you ask? It is a listing by category of all issues currently pending on appeal in criminal cases in the Tenth Circuit. You can open the document by clicking on the link in the middle of the kansasfpd.org home page.

Want to know if anyone else has challenged the classification of a prior Oklahoma failure-to-stop-at-a-roadblock conviction as a crime of violence for career-offender purposes? Click on the bookmark for USSG § 4B1.2, or search for "career-offender" or "roadblock." Use the bookmarks, use the find function, or just poke around randomly to learn what's in store for us from the Tenth Circuit in the near future. You might find the information helpful for issue spotting, or to set up your own case in either the district court or on appeal to take advantage of appellate trends.

Sunday, November 22, 2015

Into the Morass: Things Are Getting Weird

The residual clause of the Armed Career Criminal Act is unconstitutionally vague.

The residual clause of the Career Offender Guideline is unconstitutionally vague.

And the demise of these clauses continues to echo.

A federal defendant in Utah, for example, pled guilty to a robbery. He had two prior convictions for robbery. Bad news, right? As a (presumed) career offender, he was facing a guideline range of 151-188 months. To mitigate the damage, he worked out a binding plea to 96 months. Good result, or so it seemed.

But then the Supreme Court decided Johnson. And our Utah defendant moved to withdraw his plea, arguing that it was entered on a mistaken understanding that he was subject to the career-offender enhancement. Absent that enhancement, the defendant's guideline range appeared to be only 37-46 months. Withdrawing the plea would allow him to argue for a sentence within that range. The Court granted the motion, reasoning that "to the extent certain prior robbery convictions could be categorized as crimes of violence pursuant to § 4B1.2's residual clause, there now exists a compelling argument that any enhancement on this basis is unconstitutional."

In Johnson, the Supreme Court called the ACCA's residual clause "a judicial morass that defies systemic solution." We believe that the morass has only just begun to clear. Brooks, Descamps, and Johnson have created a sea change in the analysis of predicate convictions for federal sentencing purposes. This will be the first in a series of posts examining that change, and how to make the most of it for our clients. And yes, there will be a flowchart.

As we travel down this new road, let's make this our first rule of predicate convictions:

Question Everything.

Wednesday, November 18, 2015

Guideline sentence = loss

"A guideline sentence is a loss." One of the Defenders testified to this (paraphrased) before the Cardone Commission this week. There are always exceptions. But the general principle is spot on -- if we cannot do better than the guideline at sentencing, we probably lost.

Over half of the 75,000-plus federal sentences last year were below the calculated guideline range, according to the Sentencing Commission's Overview of Federal Criminal Cases: FY 2014. Some were cooperation or fast track cases; at least 40% are not.

As for the trial penalty: almost half of the defendants who lost a trial still received a below-guideline sentence.

Immigration and drug cases each took about 30%  of the sentencing real estate. Over 50% of people sentenced in federal court last year were Hispanic. Yet Hispanics account for only about 17% of the United States population.

Crack cocaine is still draws the harshest drug penalties, with an average sentence of 93 months. This has decreased over the last few years, but the racial disparity persists. For the most harshly penalized drug, 82.9% of those convicted were black.

More numbers: almost 20% of drug cases involved a mitigating role adjustment. Only 5% of crack cocaine cases received an adjustment.

The guidelines are flawed in many ways, from  inception. But now courts are free to disagree with the guidelines as a matter of policy, independent from the individual case. Many guidelines are not empirically based (2D1.1 drug valuation) or antiquated (2G2.2(b)(6), adding two levels for using a computer to possess child porn). There are many reasons that a guideline sentence does not fit within the 3553(a) factors.

The Court has said that "the Guidelines should be the starting point and the initial benchmark." But the starting point should not also be the ending point.

Tuesday, November 17, 2015

The Guidelines = Mass Incarceration

Judge Adelman, District of Wisconsin, has written an article (along with law clerk Jon Deitrich) entitled How Federal Judges Contribute to Mass Incarceration and What They Can Do About It. Here are the Judge's primary observations:

-- By placing too much emphasis on prison rather than alternative sentences, the guidelines contribute to mass incarceration. The number of prison-only sentences has increased from 83.3% in FY 2003 to 87% in FY 2014.

-- Judges are excessively attached to the guidelines "despite their deep flaws" and even after they were made advisory, in part because of "anchoring." Anchoring ties the court's analysis to the guideline range. Even if the court rejects that number, it still influences the decision. The guidelines "put a number on a question that is otherwise quite subjective."

-- Mass incarceration could be reduced if judges were less deferential to the guidelines and less focused on prison. Courts need to refocus on probation, determining first whether prison is even appropriate in a particular case. Probation can be more likely to satisfy the demands of section 3553(a)

To read more on the subject, and to bolster arguments for the court to step away from the guidelines, read Frank Bowman,Dead Law Walking: The Surprising Tenacity of the Federal Sentencing Guidelines51 Hous. L.Rev. 1227 (2014).

Tuesday, November 10, 2015

Marihuana Equivalency Spreadsheets

But first, a quick correction: Earlier this week, I reported a cert. grant in a Kansas case I mistakenly identified as United States v. Johnson. The case is in fact Nichols v. United States, as the blog post now reflects.

And now back to our regularly scheduled programming: Marihuana with an "H."

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When a drug case involves multiple controlled substances, the base offense level is calculated using U.S.S.G. 2D1.1, Application Note 8(B). This guideline sets a marihuana equivalent for each gram of the commonly encountered controlled substances. The sum of the marihuana equivalents is then used to determine the base offense level under the drug quantity table found at 2D1.1(c).

Last year we published our Marihuana Equivalency Spreadsheet, which calculated marihuana equivalents for common drugs based on the Nov 1, 2014 Sentencing Guidelines section 2D1.1, Application Note 8(B), and provided a base offense level based on the total quantity of marihuana equivalents.

In 2014, the DEA reclassified hydrocodone from Schedule III to a Schedule II controlled substance.  This change was incorporated into 2D1.1 by U.S.S.G. Amendment 793, which changed the marihuana equivalency ratio for hydrocodone (actual) to 6,600 grams of marihuana for each gram of actual hydrocodone.  We updated our Marihuana Equivalency spreadsheet to reflect this change. Our revised Marihuana Equivalency Spreadsheet now calculates marihuana equivalents based on the Nov 1, 2015 Sentencing Guidelines.

The Marihuana Equivalency spreadsheets do not account for the reduction in offense level when the accused receives a mitigating role as provided in U.S.S.G. 2D1.1(a)(5), or any applicable reduction for acceptance of responsibility as allowed by U.S.S.G. 3E1.1. The spreadsheets also do not account for enhancements for specific offense characteristics found at 2D1.1(b), or enhancements from Chapter 3 or Chapter 4, Part B of the Guidelines. Finally, our spreadsheets do not apply to offenses covered by U.S.S.G. 2D1.11, Unlawfully Distributing, Importing, Exporting or Possessing a Listed Chemical; Attempt or Conspiracy.

Both spreadsheets are available for download on our CJA website. Thanks to David Freund for this valuable tool and the above explanation.

Sunday, November 8, 2015

SCOTUS grants cert in SORNA case from Kansas

Last Friday, the United States Supreme Court granted certiorari in United States v. Nichols, a federal SORNA case arising from Kansas. The question of statutory interpretation at issue is whether a sex offender who moves to a foreign jurisdiction in which SORNA registration is not required must report his move (i.e., update his registration) in the jurisdiction in which he previously resided and registered. The facts---and the circuit split that led to the cert. grant---were succinctly stated in the petition for certiorari:

Two men lived on opposite sides of the Missouri River in the Kansas City Metropolitan area, one in Missouri within the Eighth Circuit, the other in Kansas within the Tenth Circuit. Both men . . . were required to register under SORNA. Both men traveled from their homes to the Kansas City International Airport, flew to the same foreign country to reside, and thereafter did not update their registrations in the jurisdictions they had left. On these facts, the Eighth Circuit ruled in United States v. Lunsford, 725 F.3d 859 (8th Cir. 2013), that the failure to update a registration does not violate SORNA. The Tenth Circuit came to the opposite conclusion in Petitioner’s case, on the basis of its earlier decision in United States v. Murphy, 664 F.3d 798 (10th Cir. 2011).

The SCOTUSblog case page is up and running. Watch for arguments in early 2016.

Monday, November 2, 2015

Tenth Circuit: Career Offender Residual Clause Void for Vagueness

Because the Guidelines are the beginning of all sentencing determinations, and in light of the “unavoidable uncertainty and arbitrariness of adjudication under the residual clause,” Johnson, 135 S. Ct. at 2562, we hold that the residual clause of § 4B1.2(a)(2) is void for vagueness.

United States v. Madrid, No. 14-2159 (10th Cir. Nov. 2, 2015) (holding further that Mr. Madrid's prior statutory-rape conviction from Texas was neither a force-clause offense nor an enumerated forcible sex offense).