Thursday, January 17, 2019

Unpacking Anti-Stacking

Stacking occurs when an enhanced sentence for a second or subsequent conviction is imposed consecutive to a first-conviction sentence within the same case. Anti-stacking, under the December 21, 2018 First Step Act, means that the enhanced second-or-subsequent sentence applies only to sequential convictions. Crime, conviction, sentence; new crime, conviction, sentence.

Let’s unpack this.

The statute: Section 924(c)(1)(A) requires a sentence of not less than 5, 7 , or 10 years upon conviction. Subsection (c)(1)(C) required a sentence of 25 years (or sometimes life) for a “second or subsequent conviction.” With the amendment, subsection (C) applies only "after a prior conviction under this subsection has become final.” And subsection (D), then and now, requires any §924(c) sentence to run consecutively “with any other term of imprisonment imposed on the person.”

Let’s say your client was charged with three convenience store robberies (Hobb’s Act, 18 USC § 1951). And for each robbery, they were also charged with a related count of brandishing a weapon, per § 924(c).

Count 1: Robbery on August 1, 2018.
Count 2: Brandishing a firearm (9 mm) during the robbery charged in Count 1.
Count 3: Robbery on August 4, 2018.
Count 4: Brandishing a firearm (same 9mm) during the robbery charged in Count 3.
Count 5: Robbery on August 6, 2018.
Count 6: Brandishing a weapon (same 9mm) during the robbery charged in Count 5.

Before the Act, the law required that the sentences for Counts 2, 4, and 6 run consecutively to the robberies and to each other (the robberies can be concurrent to each other). And the law dictated that counts 4 and 6 were “second or subsequent convictions”, consecutive to the first conviction, Count 2. That was stacking. 

Let’s assume the sentences for the robberies were 5 years each, to run concurrently with each of the other robberies. Pre-Act, the sentences would look like this:

5 + 7 + 25 + 25  = 62 years


5 years (for robbery counts 1,3, and 5, concurrent) consecutive to 7 years (first § 924(c), Count 2) consecutive to 25 years (second § 924(c), Count 4) consecutive to 25 years (subsequent § 924(c), Count 6) = 62 years.

Stacking was absurd. But it happened, even with no criminal history, and it was mandatory, even if the sentencing court believed it to be “unjust, cruel, and even irrational.” Prosecutorial discretion, unhinged, and endorsed by the Tenth Circuit and U.S. Supreme Court. Prosecutors used stacking as a crushingly heavy hammer in plea negotiations.

Post-Act, subsection (C) applies only after a prior conviction becomes final, that is, in a separate preceding case, not within the same case. But the mandatory consecutive language of subsection (D) is unchanged. So the sentences would look like this:

5 + 7 + 7 + 7 = 33 years

Still a heavy hammer for the prosecution.  

The change to § 924(c) is not retroactive. It will “apply to any offense that was committed before the date of enactment of this Act, if a sentence for the offense has not been imposed as of such date of enactment.

-- Melody

Thursday, January 10, 2019

The FIRST STEP Act & compassionate release

By Rich Federico, AFPD
We previously highlighted (here, here) some of the important reforms enacted in the First Step Act of 2018, passed in December by the last Congress. Another noteworthy change are the amendments to the compassionate release statute. In making these reforms, Congress provided greater opportunity for defense attorneys and families to help clients and loved ones who may be eligible for compassionate release. As explained below, the new law allows clients to bring their own motions before a federal judge to seek compassionate release, and the new law establishes notice and assistance requirements for the Bureau of Prisons.

In 1984, Congress authorized compassionate release under the criteria found in 18 U.S.C. § 3582(c)(1)(A). In short, the BOP played the ministerial role and had to bring the motion on behalf of the inmate to explain the “extraordinary and compelling reasons” for a sentence reduction. Congress delegated to the Sentencing Commission to define what “extraordinary and compelling reasons” meant, and the Commission obliged by issuing a policy statement found in § 1B1.13. Most common was that BOP would only bring a motion if an inmate was diagnosed with a “terminal illness,” which the Commission defined as “a serious and advanced illness with an end of life trajectory,” though the “probability of death within a specified time period is not required.”  

BOP’s track record in compassionate release cases was poor. A Human Rights Watch report found that BOP filed very few petitions, leaving judges with only rare opportunities to determine whether compassionate release was warranted. The Campaign for Compassionate Release (here) found that the sick and the elderly have the lowest rates of recidivism, but also cost the most to keep incarcerated. Also, from 2014 to 2018, 81 families watched a loved one die in prison while their compassionate release request went unanswered by the BOP. Finally, according to a report by the Marshall Project, between 2013 and 2017, BOP approved only 6% of the 5,400 applications it received for compassionate release. Of those applicants, 266 died in custody; half of the 266 who died were convicted of nonviolent crimes.

With the passage of the First Step Act, Congress made two important changes to the law.

First, BOP is no longer is the sole movant for compassionate release motions. Now a court can review a compassionate release request “upon motion of the defendant.” However, the inmate cannot file in federal court until “after the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant’s behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant’s facility, whichever is earlier.” In other words, the inmate must first request BOP to file the motion on his or her behalf, and BOP must either deny or not file a motion with 30 days.

Second, the statute now includes notice and assistance requirements for BOP that will certainly streamline and expedite the request process. In cases where an inmate is diagnosed with a terminal illness, BOP must:

·       within 72 hours, notify the defense attorney and family members of the diagnosis;

·       within 7 days, provide them an opportunity for visitation;

·       if requested, assist them with preparing a compassionate release request; and

·       process all requests not later than 14 days after receipt.

If you are a defense attorney and receive calls from former clients or family members, the FPD is here to help. Also, if you have former clients who you think may be eligible to seek a reduction and want our assistance, please contact us.

Wednesday, January 9, 2019

The First Step Act and Prison Reform

The First Step Act lowered some drug sentences, retroactively reduced some crack cocaine offenses, and changed the mechanism for the compassionate release program. It also created new rehabilitative incentives within BOP. As usual, FAMM is a great source of information.

Here are some highlights.

Good Time Credit 

The BOP must now give 54 days of good-time credit per year of sentence imposed, rather than 47 days that BOP was allowing. Everyone serving a term of years (a number, not a word) is eligible for good time credits.

There is a debate about when this goes into effect—Congress intended it to be immediate, but the wording of the Act is less than crystalline. It is a good bet that no one will see the new credit for several months. But it is retroactive, meaning BOP will be recalculate based on the entire sentence imposed. Some folks may be eligible for immediate release; some may be doing dead time waiting for BOP to recalculate.

Earned Time Credit

The First Step Act also allows some people to earn time credits by completing programs or other services. Depending on their risk levels, they can earn up to 15 days of credit for every 30 days of rehab or production activity. There are a lot of qualifiers and caveats, explained by FAMM. These time credits are not day-for-day reduction of the actual sentences, but can be redeemed toward time in half-way houses (RRCs), on home confinement, or on supervised release. 

And it will not go into effect immediately, either. BOP has 210 days to create risk assessment tools, six months to administer the assessments, and two years to phase in the programming. And then there is delay resulting from the federal government shut down, as The Marshall Project explains in its article, What the Government Shutdown Looks Like Inside Federal Prisons.

The longest section of the Act is the list of people excluded from earned time credits. FAMM has the full list here. Computer fraud? Out of luck. SORNA? Nope. Non-citizens with immigration detainers? Nada. Other offenses that are not eligible for the new time credits:

Almost any “organizer, leader, manager, or supervisor” enhanced sentence (USSG § 3B1.1)

§  924(c) offenses

Drug trafficking offenses with death or serious bodily injury

Child pornography offenses

Terrorism offenses

Aggravated illegal reentry and other immigration offenses

Non-citizens facing deportation


Treason (surprisingly)

And a plethora of weird offenses (recruiting child soldiers) that we never see.

Even if ineligible to earn time off, there are other incentives to complete the programming, such as greater phone privileges and commissary. Other good measures: BOP must help people get government ID cards before release; provide free tampons to women prisoners; and place people within 500 driving miles of their post-release residence (BOP policy used to read this “as the crow flies”) if space is available. And when possible, BOP is directed to move people closer to home.



Sunday, January 6, 2019

Mandatory Minimum Sentences in Child Porn Cases: How to Use the Sentencing Commission's New Report

What is the Sentencing Commission good for? Statistics. They keep really good stats. And we can make use of the Commission’s own stats to fight against the Commission’s own guidelines.

The Commission just issued a report, Mandatory Minimum Penalties for Federal Sex Offenses (2019), with the critical conclusion that “unwarranted sentencing disparities” result from “inconsistent application of the mandatory minimum penalty for receipt offenses.”

This is what the Commission is talking about: Under 18 USC § 2252A(b)(1), the statutory mandatory minimum sentence for receiving child pornography is five years in prison. In contrast, the mandatory minimum for possessing child pornography is, well, none. And because the Commission ties the guidelines to the statutory penalties, the base offense level for receipt is 22, while the base offense level for possession is just 18.

Now, you may be wondering, “what’s the difference between these two offenses? How does one possess without receiving?” (we are excluding production from our convo here). And “how does one receive without possessing?”

The Commission had the same questions about this irrational discrepancy, and while noting it is technically possible, it concluded that: “there is little meaningful distinction between the conduct involved in receipt and possession offenses . . .

So, you next ask, why are some people subject to a harsher sentence for the same conduct?  The answer, of course, is unilateral prosecutorial discretion to choose which charge to pursue. And we can do little about that, since the only avenue below a mandatory minimum in this context is cooperation and a motion under 18 USC 3553(e). Those are rare in CP cases.

But the Commission recognized that the inconsistency in charging practices could cause “unwarranted disparities,” something that Congress has directed the Commission and sentencing courts to avoid, under 18 USC § 3553(a)(6). The Commission made these key findings:

  •      "There was little difference in the offense seriousness between typical receipt cases, which require a five-year mandatory minimum penalty, and typical possession cases, which require none.
  •        Even though the conduct may essentially be the same, the average sentence for receipt (5-yr MM) offenders is “substantially longer” than the penalty for possession (non-MM) offenders. “Child pornography offenders convicted of distribution (140 months) and receipt offenses (93 months), which carry a 5-year mandatory minimum penalty, also had a longer average sentence than offenders convicted of possession offenses (55 months), who did not face a mandatory minimum penalty.”
  •        This 2019 Report follows up on two other Commission reports, the 2011 Report on mandatory minimum penalties and the 2012 Report on Federal Child Pornography Offenses. The 2011 Report concluded that the guideline ranges “may be excessively severe and as a result are being applied inconsistently.” That Report recommended that Congress should “align the statutory penalties for receipt and possession to reduce unwarranted sentencing disparities resulting from inconsistent application of the mandatory minimum penalty for receipt cases.” The 2012 report said the same thing (at 326). Congress has yet to follow that recommendation, and the disparity remains.

How to use this information:

The Commission has thrice determined that “inconsistent application,” (read: prosecutorial discretion) in charging receipt (MM) rather than possession has resulted in “unwarranted sentencing disparities.” (2019 Report at 15 & 56). Use these reports to ask for a below-guideline variance. Argue that the variance should equal the calculation for a possession offense (base offense level 18) rather than a receipt offense (base offense level 22) under § 2G2.2. Otherwise, the “unwarranted disparity” will persist, contrary to 18 USC §3553(a)(6).

A few more helpful statistics from the Commission. First, for comparison to your case, the average sentence lengths from 2016:

Second, below-guideline sentences are the norm. Only about one quarter of all child pornography offenses were sentenced within the prescribed guideline range. Less than 2% were above. The remainder, whether sponsored by the government or not, were below guideline. It appears that a guideline sentence, based on the Commission’s own data, creates an “unwarranted disparity.”


Friday, January 4, 2019

He "wasn't going to say anything at all"

A suspect who interrupted his Miranda warnings about half-way through to declare that he "wasn't going to say anything at all" unambiguously invoked his right to silence, and his responses to the interrogating officers' continued questioning should have been suppressed. So said the Fourth Circuit last month in United States v. Abdallah, No. 17-4230 (4th Cir. Dec. 18, 2018).

Lessons from Abdallah:

1. An invocation is not ineffective because it is made before the suspect has heard the entire Miranda warning: "there is no requirement that an unambiguous invocation of Miranda rights also be 'knowing and intelligent.'"

2. An invocation need not take any particular tone: "There is no requirement that Miranda invocations be measured, polite, or free of anger." 

3. What happens post-invocation is irrelevant to whether the invocation was ambiguous: "courts cannot cast ambiguity on an otherwise clear invocation by looking to circumstances which occurred after the request."

4. Don't conflate the invocation analysis with a waiver analysis: "Officers cannot fail to scrupulously honor a suspect's request in the hope that the suspect will subsequently waive that failure."

Tuesday, January 1, 2019

Balancing the probative and prejudical effects of prior bad acts

"[T]he same factors that make prior-act evidence probative—similarity and temporal proximity—may also increase the risk of this form of unfair prejudice."

These are the wise words of the Sixth Circuit in United States v. Asher, a must-read case for understanding the push-me/pull-you nature of Rule 404(b) and Rule 403's probative/prejudice analysis. In Asher, the Sixth Circuit reversed the defendant's conviction on grounds that the district court erroneously admitted Rule 404(b) evidence. If you're moving to suppress evidence of a prior bad act, read Asher.

Thursday, December 27, 2018

Generic descriptions aren't enough for reasonable suspicion

11:00 am: Two "suspicious" men in a white Cadillac outside a Wells Fargo in Flagstaff, Arizona are seen heading east. One is a Native American man wearing a Bud Light hat and a checkered hoodie. One of the men may be wearing glasses.

11:41 am: Two men rob a Wells Fargo in Winslow, Arizona. One is wearing a Bud Light hat, the other a checkered shirt.

12:28-ish pm: Officer Phillips sees a white Cadillac on I-40 130 miles away from Winslow, drives alongside and peers in the darkly tinted window, and thinks the driver has glasses and the facial features of a Native American. He pulls the Cadillac over, solely to investigate the robbery. Was this a legal stop?

gold vintage car in macro shot photographyTwo out of three Tenth Circuit judges said no, in United States v. Martinez. "White Cadillac" and "potentially Native American" are simply too generic to link the car on the highway with the car seen in Flagstaff and Winslow---especially absent any evidence that Officer Phillips saw anyone in the car wearing a Bud Light hat or checkered clothing.

“A white Cadillac on an interstate highway isn’t specific; nor is a driver with Native American 'facial features'—especially in Arizona.”

Order denying motion to suppress reversed.