We have blogged about Kansas robbery before (here and here), but it's been a while, and the Tenth Circuit did not publish an authoritative opinion on the issue until this week.
It's now official: Neither Kansas robbery nor Kansas aggravated robbery are violent felonies. They cannot serve as predicate offenses for ACCA purposes (or, for similar reasons, for career-offender or other like purposes).
So says the Tenth Circuit in United States v. Bong, No. 16-3323, 2019 WL 336512 (Jan. 28, 2019).
Thursday, January 31, 2019
Sunday, January 27, 2019
What to expect when you're expecting a prison term
Do you have clients who are headed to prison?
Don't let them go unprepared.
On February 21, 2019, from 3 p.m. to 5 p.m. at the Kansas City, Kansas, courthouse, US Probation will be holding its quarterly orientation program for people facing federal prison time. Family, counsel, and staff members are encouraged to attend. Participants may join by videoconference from the federal courthouses in Wichita, Topeka, and the Western District of Missouri.
Among other things, attendees will learn (or be reminded of):
At one previous program, a young professional couple who met in a halfway house after each had spent many years in prison spoke about their experiences in an effort to allay the fears of incoming clients and their families. Their stories were encouraging, and their light-at-the-end-of-the-tunnel message was punctuated by the fact that they were celebrating the recent purchase of their first home.
The orientation will also be offered on May 9, 2019, August 8, 2019, and November 7, 2019 (same time & place).
Clients who are currently in custody and unable to attend may be able to attend a similar program at CCA while awaiting sentencing/designation.
Questions? Call Senior US Probation Officer Sara Valdez Hoffer at 913-735-2402.
Don't let them go unprepared.
On February 21, 2019, from 3 p.m. to 5 p.m. at the Kansas City, Kansas, courthouse, US Probation will be holding its quarterly orientation program for people facing federal prison time. Family, counsel, and staff members are encouraged to attend. Participants may join by videoconference from the federal courthouses in Wichita, Topeka, and the Western District of Missouri.
Among other things, attendees will learn (or be reminded of):
- What personal business to take care of before going to prison (utility bills, child support, student loans, pending charges & detainers);
- How to self surrender;
- What to take (and what not to take) to prison;
- What programs are available in prison (educational, vocational, religious, mental health, medical);
- What to expect with respect to visitation, phone calls, email, etc.; and
- How federal prisons help prepare clients for release.
At one previous program, a young professional couple who met in a halfway house after each had spent many years in prison spoke about their experiences in an effort to allay the fears of incoming clients and their families. Their stories were encouraging, and their light-at-the-end-of-the-tunnel message was punctuated by the fact that they were celebrating the recent purchase of their first home.
The orientation will also be offered on May 9, 2019, August 8, 2019, and November 7, 2019 (same time & place).
Clients who are currently in custody and unable to attend may be able to attend a similar program at CCA while awaiting sentencing/designation.
Questions? Call Senior US Probation Officer Sara Valdez Hoffer at 913-735-2402.
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
Expanded:
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.
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.
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.”

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

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.
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
Lifers
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.
Progress.
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.”
--Melody
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."
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.
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.
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