Friday, April 25, 2014

Good Time Credit Could Expand

Amid the hubub over the Smarter Sentencing Act, another bill waiting to be voted on by the Senate might have a significant impact on how much time our clients actually serve.  The Recidivism Reduction and Public Safety Act, which has passed the Judiciary Committee and awaits a vote in the full Senate, would increase available good time credit in several ways.

First, the bill legislatively overrules Barber v. Thomas and makes clear that clients can earn 54 days of good time per year, not 47.

Second, the bill permits clients to earn up to 60 additional days off per year for participating in recidivism reduction or recovery programs. The only catch is that the maximum good time credit reduction available is 30%.  This ceiling on good time reductions includes time off for participating in RDAP.

This bill was voted out of committee on March 6.  We have added a widget to our page to keep track of where we go from here.

This Clemency Thing Might be a Thing

In a video released today, Eric Holder told the press that the Justice Department is broadening the criteria for granting clemency applications.  DOJ has now announced that it will consider six criteria in determining whether to support a clemency application.  

- The client is currently serving a federal sentence in prison and, by operation of law, likely would have received a substantially lower sentence if convicted of the same offense(s) today;
- The client is a non-violent, low-level offender without significant ties to large scale criminal organizations, gangs or cartels;
- The client has served at least 10 years of their prison sentence;
- No significant criminal history;
- Good conduct in prison; and
- No history of violence prior to or during the current term of imprisonment.

It is important to note that these are not new requirements that must be fulfilled before clemency is granted. Rather, these are the criteria for the special DOJ clemency initiative where the US Attorney will forward their recommendation to the pardon attorney.  Anyone may apply for clemency through the regular route at any time.

In less than 30 days, our office has a group of interns starting to help us process clemency applications. Please contact Che Ramsey in our Kansas City office with the names of any past clients we should look into.

Tuesday, April 22, 2014

Wherefore Art Thou, Smarter Sentencing Act?

Day after day, lonely Google News searches reveal little of the progress of the Smarter Sentencing Act.  As we have discussed before, passage of the SSA should benefit any client who is not already sentenced, regardless of the offense date.  So when is Congress going to pass the thing, already??!??!

Well, rumblings are growing louder.  The Senate version of the bill now has twenty-two co-sponsors, on an ideological spectrum from Patrick Leahy to Ted Cruz.  The New Orleans Times-Picayune reports that the "Senate is scheduled to begin consideration [of the SSA] in the next few weeks".  The Senate version of the SSA was placed on the general legislative calendar on March 11.  Reason believes that the bill has "bipartisan backing in the House as well as the Senate".  The ACLU says that the SSA has "some serious bipartisan support" and may be voted on in April.  Even President Bartlet is on board!

So...hang in there.  Any drug sentencing that can be conducted after the SSA lives or dies should be.

Monday, April 21, 2014

Gun Guideline Amendments

Largely lost in the furor over the amendments to the drug guideline is the changes to 2K2.1.  These changes minimize the risk of a sentence-busting cross reference, but make it more likely that enhancements are going to apply based on the possession of other weapons.

First, the amendment limits the court's ability to apply a cross reference by making only the gun of which the defendant was convicted of possessing eligible for cross reference fun.  The amendment provides that if
"the defendant used or possessed any firearm or ammunition cited in the offense of conviction in connection with the commission or attempted commission of another offense" a cross reference is available. So if the Government is using the Al Capone strategy by charging your client with possession of a gun to try to sentence him via cross reference for a homicide, this guideline amendment may help if different weapons were involved.

Second, the news is less sanguine concerning the (b)(6)(B) "in connection with" enhancement.  This common enhancement adds four offense levels to a client's sentence if he possessed a firearm in connection with another felony offense.  While the amendment could have limited this enhancement to the firearm that the defendant was convicted of possessing, it did not.  Instead, the Commission deferred to a mushy relevant conduct analysis, asking if  a weapon other than the one the defendant was convicted of possessing was ""part of the same course of conduct or common scheme or plan."

So, say your client is strongly suspected of robbing a grocery store with a shotgun in January.  He is then found with a .22 in August, and convicted of possessing the .22 after suffering a felony conviction.  A robbery cross reference is not available, because the client was not convicted of possessing the shotgun.  But an "in connection with" enhancement may still be available, dependent on how relevant conduct principles operate in the facts of the case.

Sunday, April 13, 2014

Win: A Curtilage Case

From our counterpart in Utah, a quick and solid win. Quick because it was argued March 20, and solid because it resulted in suppression of the handgun in a felon-in-possession case. US v. Chavez was an appeal by the government from the district court suppression of evidence found in the home where Chavez was arrested. The decision: officers did not have reasonable belief that Chavez was even present at the home when they crossed into the curtilage.

Short facts: A CI had info about Chavez. Police found an outstanding arrest warrant, however, it did not list the same address given by the CI. They determined that the house was owned by someone related to Chavez. A police officer went into the fenced backyard and looked through a gap in the blinds to see Chavez inside with a handgun; police moved in, with tear gas and a SWAT team, arrested Chavez, and found the gun.

Chavez challenged the warrantless police entry into the backyard curtilage, and that the arrest warrant did not justify entry onto the property. Relying on Payton, 455 US 573 (1980), the Circuit found,

  • "It is unnecessary for this court to decide whether the officers had a reasonable belief Chavez lived in the Westwood house, because, even if they did, we conclude they did not have an objectively reasonable belief he was present at the time they entered the curtilage."
  • "Officers are not required to actually view the suspect, but the circumstances must give them a reasonable belief the suspect is present in the home. Relevant facts include, but are not limited to, the presence of an automobile, the time of day, and the operation of lights at night."  
  • "Because officers did not have an objectively reasonable belief Chavez could be found within the Westwood house at the time they entered the property, their entry violated his rights under the Fourth Amendment."  
Short take-away: For police to rely on an arrest warrant to cross into the curtilage of a residence, they must have had a reasonable and objective belief that the target of the arrest warrant was actually present at the time of entry. 

For Chavez, "the observations made by Detective Hughes when he peered through the blinds into the Westwood house, and the fruits of those observations, must be suppressed. As the district court noted, this includes the firearm."

-- Melody


Sunday, April 6, 2014

Procrastinating Ethics

June, the summer month when some of us (me) start scrambling for the last hour of CLE ethics. Every year. Same scramble. Every. Year.  

To save some of us that angst, this year the FDO will offer an hour of ethics over lunch on June 18 in Topeka, June 19 in Wichita, and June 20 in KC. This will be a roundtable sort of event, so please send in any topics or questions ahead of time.  

This will also be one of the first opportunities to meet with the new CJA Administrator, and to talk about issues regarding the new CJA plan. Send in those topics and questions ahead of time, as well. 

Mark it on your calendars, details to follow soon.

-- Melody