30 Days and a “Wake-Up”—The Compassionate Release Countdown

In December 2018, in the midst of the holiday season, Congress gave us the gift of the First Step Act (FSA). This long overdue criminal justice reform legislation, among other things, ended BOP’s exclusive reign over the compassionate release process. One of the reasons for this reform was the absolute lack of compassion shown toward our incarcerated brothers and sisters facing terminal illness. Inmates were literally dying in BOP custody while their requests for compassion went unanswered. Just over a year after compassionate release was revised, however, BOP’s stats are still pretty abysmal. According to BOP’s first report to Congress on compassionate release stats for 2019, wardens received 1735 requests. The BOP Director approved 55 and denied 171.

Presumably, the remaining requests never made it to the Director. In 2019, 41 people died in BOP custody awaiting compassionate release.

I know these numbers are infuriating, but be not discouraged! There is still hope. The revised version of compassionate release never actually expanded BOP’s capacity to grant these requests. What the FSA did do was empower our clients to go directly to their sentencing judges for the relief that BOP is either unwilling to grant or unmotivated to process in a timely manner. Remember that an inmate can file a motion for compassionate release 1) after exhausting BOP’s administrative remedy process; or 2) if BOP has not responded to a request after 30 days. There are no rules within the First Step Act that limit the time in which BOP must facilitate administrative appeals, so Option #2 is the ideal route for this kind of request.

Now go back and look at the numbers for 2019 again…does it look like BOP is likely to respond within 30 days given the volume of requests they receive? If I were a betting woman, I wouldn’t put my money on it. To the extent we can, clients and their advocates need to take advantage of BOP’s failure to meet the 30-day deadline. This is by far the easiest way to get to get your foot in the door. Keep track of the date the request is delivered to the Warden’s office. We use FedEx, but any service that requires signed receipt will do. Then mark your calendar for 30 days and stay in touch with your client to confirm whether he or she has received a response from the warden of that facility. If not, file the motion. GET YOUR FOOT IN THE DOOR!

Once your client has standing to go directly to the judge, the world is your oyster. My favorite part about going directly to the court is the sentencing judge is NOT bound by BOP’s narrow definition of “extraordinary and compelling” circumstances. The government may disagree, but who cares? The majority view is that the courts have discretion. And, as Professor Berman has noted, some of those courts have found extraordinary and compelling circumstances where the movant would not have been sentenced as harshly today.

In the last six months, two of our clients were released from custody. The first was diagnosed with pancreatic cancer and informed he had a life expectancy of 18 months or less. The 18-month mark is a BOP threshold. My client had been seeking compassionate release to no avail much earlier in his cancer diagnosis. He sought compassionate release on his own for months before the court appointed our office to represent him. This eliminated the 30-day option for us. Instead, we were forced to engage the administrative appeals process. It was extremely difficult to find out the status of his appeal with BOP, let alone get a response to it. Just when we decided we would petition the court on the basis that BOP violated the spirit of the FSA by taking months to respond to a dying man’s appeal, BOP informed me that my client’s request would be granted. Our local USAO filed the motion to reduce my client’s sentence to time served. He was home within 24 hours of the judge signing the order. He is receiving treatment at a nearby oncology center surrounded by people who love him.

The more recent success story was one in which we were able to file the motion for reduced sentence after BOP missed the 30-day deadline. My client did not fall within BOP’s compassionate release-worthy categories. While she was serving a five-year sentence for arson, her special-needs daughter was left in the care of a family member. After an allegation of abuse, the state removed the daughter from the home and placed her in foster care. Although the family member caregiver was not physically incapacitated (BOP’s standard), we argued that the caregiver was legally incapacitated. The government initially objected, but agreed after USPO approved the release plan. The court granted the motion.

I’m not discouraged by the numbers at all. In fact, I’m excited by the opportunity to hold BOP to the 30-day deadline. You don’t even need 31 full days to get your foot in the door. If you countdown like Soldiers in the Army, all you really need is 30 days and a wake-up.

---

*United States v. Fox, No. 2:14-CR-03-DBH, 2019 WL 3046086, at *3 (D. Me. July 11, 2019); United States v. Beck, No. 1:13-CR-186-6, 2019 WL 2716505, at *6 (M.D.N.C. June 28, 2019) (“While the old policy statement provides helpful guidance, it does not constrain the Court’s independent assessment of whether ‘extraordinary and compelling reasons’ warrant a sentence reduction under § 3582(c)(1)(A)(i). An interpretation of the old policy statement as binding on the new compassionate release procedure is likely inconsistent with the Commission’s statutory role.”); United States v. Cantu, No. 1:05-CR-458-1, 2019 WL 2498923, at *3 (S.D. Tex. June 17, 2019) (“Because the Commission’s statutory authority is limited to explaining the appropriate use of sentence-modification provisions under the current statute, 28 U.S.C. § 994(a)(2)(C), an amendment to the statute may cause some provisions of a policy statement to no longer fall under that authority ....”) (emphasis in original)); United States v. Brown, No. 4:05-CR-00227-1, 2019 WL 4942051, at *4 (S.D. Iowa Oct. 8, 2019) (“Therefore, if the FSA is to increase the use of compassionate release, the most natural reading of the amended § 3582(c) and § 994(t) is that the district court assumes the same discretion as the BOP Director when it considers a compassionate release motion properly before it.”); United States v. Adams, No. 6:94-CR-302, 2019 WL 3751745, at *3 (M.D.N.C. Aug. 8, 2019) (holding that the Director of the Bureau of Prisons’ prior “interpretation of ‘extraordinary and compelling’ reasons is informative,” but not dispositive.); United States v. Bucci, No. CR 04-10194-WGY, 2019 WL 5075964, at *1 (D. Mass. Sept. 16, 2019) (“This Court agrees with Judge Hornby of the District of Maine that interpreting the Sentencing Commission’s guidance on compassionate release today begins with the premise that ‘[t]he First Step Act did not change the statutory criteria for compassionate release, but it did change the procedures, so that the Bureau of Prisons is no longer an obstacle to a court’s consideration of whether compassionate release is appropriate.’”) (citation omitted).

---Laquisha Ross, AFPD

When the PSR has no clothes.

We know that a district court can accept facts stated in the PSR, unless the defendant objects to them. An objection triggers the government's obligation to prove the objected-to facts by a preponderance of the evidence. See United States v. Harrison, 743 F.3d 760, 763 (10th Cir. 2014). 

A recent Seventh Circuit decision reminds us about the practical importance of these objections. In United States v. Helding, the Seventh Circuit vacated the defendant's sentence for marijuana distribution because of the unreliability of the district court's drug-quantity finding. 140 kilograms of marijuana were seized from the defendant's car. The PSR also attributed 64 ounces of methamphetamine to him as relevant conduct, based on statements made to law enforcement by confidential informants. The meth raised the guidelines range from 180-210 months to 270-322 months. The defense objected, arguing that that the meth statements were not corroborated and the PSR did not establish that the informants were credible. The district court accepted the meth statements as reliable because the statements were specific and detailed. The Seventh Circuit held that the district court could not accept the out-of-court meth statements as reliable over an objection by the defendant, without some corroboration or information about the reliability of the informants. Where the PSR "asserts nothing but a naked or unsupported charge, the defendant’s denial of that information suffices to cast doubt on its accuracy." 

Remember: if the defense had not objected, the district court would have been free to accept the meth statements as established fact. 

In the news: Real tigers vs. paper tigers

1. Judge Jack Weinstein, district judge in Eastern District of New York  and Wichita native son, steps down from the bench. His decisions were marked by compassion, see United States v.Bannister, 786 F.Supp.2d 617 (EDNY 2010), when he toured the defendants' impoverished neighborhood; and a sense of justice, see NYT, The 96-Year-Old Brooklyn Judge Standing Up to the Supreme Court:

‘The Supreme Court’s recent emphasis on shielding public officials and federal and local law enforcement means many individuals who suffer a constitutional deprivation will have no redress,’ he wrote.

We will miss him, and wish him the best in retirement.

2. “State-federal task forces are out of control.” Radley Balko writes for the Washington Post, reviewing the history and efficacy of joint-task forces, (“Nixon wanted ‘strike forces’ that could kick down doors and put the fear of God into drug offenders without burdensome hurdles like the Fourth Amendment or the separation of powers”). Today, they are ubiquitous and unaccountable. (“With little oversight, they have a record of overstepping and misdeeds, from excessive force to shootings, to mistaken raids, to straight up corruption. and the persistent lack of accountability.”)

3. Four federal prosecutors stood up to the Department of Justice’s interference in a local prosecution, followed by a paper tiger from 1100 former prosecutors who implored,

[W]e call on every DOJ employee to follow their heroic example and be prepared to report future abuses to the Inspector General, the Office of Professional Responsibility, and Congress; to refuse to carry out directives that are inconsistent with their oaths of office; to withdraw from cases that involve such directives or other misconduct; and, if necessary, to resign and report publicly—in a manner consistent with professional ethics—to the American people the reasons for their resignation.

If only.

− Melody

February(ish) Fourth Amendment Extravaganza

Seizure: In United States v. Hood, a D.C. district court held that a defendant was seized when a uniformed and armed officer got out of his car, approached the defendant on foot, shined a flashlight at him, and told him to "hold on a sec." Because there was no reasonable suspicion justifying the detention, the firearm subsequently discovered in the defendant's waistband was suppressed.

Exigent Circumstances: In United States v. Rodriguez-Pacheco, the First Circuit held that the officers' warrantless entry into the defendant's home to investigate a domestic-violence allegation was unconstitutional. The court rejected the government's exigent circumstances justification, holding that  the fact that the the defendant was a police officer who kept his service weapon at home did not justify the entry. The court noted that the defendant was unarmed, had not threatened violence, had no history of violence, and the gun was not connected to the crime being investigated. The information found from a search of the cellphone, camera and laptop seized during the entry was suppressed.

Warrant Overbreadth: In United States v. Burkhow, an Iowa district court held that a warrant authorizing the search of the defendant's entire Facebook account was overbroad, and exceeded the probable cause on which the warrant was based. The court noted that the warrant did not contain temporal limitations, or any restrictions to a specific type of account activity or interactions with specific people. "Given that social media profiles often contain a wide array of personal data spanning years, some restriction here was necessary to prevent a general rummaging beyond limiting seizure to the offenses being investigated."

Right to Observe the Police: In Chestnut v. Burds, the Eighth Circuit affirmed the denial of qualified immunity to a police officer who stopped, frisked, and handcuffed a bystander watching another police officer perform traffic stops. The court found there were genuine disputes of fact, such as whether the bystander was suspiciously "lurking" in the darkness, or whether he purposefully remained visible to the officers. The court also held that if the bystander was, as he says, visible and not interfering, then the officer clearly violated his "clearly established right to watch police-citizen interactions at a distance and without interfering."

Tenth Circuit Breviaries

Last week at the Tenth Circuit:

Unlawful reentry

A person charged with unlawful reentry may collaterally challenge the prior removal order that rendered reentry unlawful under 8 U.S.C. § 1326(d). But not if that prior removal order was expedited. At least not according to 8 U.S.C. § 1225(b)(1)(D), which purports to deprive courts of jurisdiction to consider collateral attacks on expedited removal orders.

Section 1225(b)(1)(D) is unconstitutional. So declared the Tenth Circuit in United States v. Gonzalez-Fierro, explaining that "it deprives a defendant like Gonzalez-Fierro of due process; that is, § 1225(b)(1)(D) allows the Government to use an unreviewed expedited removal order to convict a defendant of the § 1326(a) offense of unlawfully  reentering the United States after a prior removal."

Unfortunately for Mr. Gonzalez-Fierro, his collateral challenge fails under the strict terms of § 1326(d).

Pre-sentencing plea withdrawal

Did the law change between your client's plea and sentencing, and if so, did that change render your client's plea not knowing and voluntary? Check out United States v. Zayas (unpublished), holding that the district court should have granted a pre-sentencing motion to withdraw a plea on grounds that the defendant was not aware of the mens rea requirement required to prove her guilt (nope, not a Rehaif case, but an Assimilated Crimes Act case based on a New Mexico statute that, after Ms. Zayas's plea, the New Mexico Supreme Court interpreted as having a higher mens rea than precedent had previously held).

In the custody, care, or supervisory control of the defendant, USSG § 2A3.2(b)(1)

In United States v. Blackbird, the Tenth Circuit found error in the district court's application of this 4-level sentencing enhancement to Mr. Blackbird, who pleaded guilty to attempted sexual abuse of his 15-year-old granddaughter. Merely showing that Mr. Blackbird was the victim's grandfather was not enough; neither was showing that he exploited an opportunity when she was home alone. There was no evidence that Mr. Blackbird was babysitting or otherwise responsible for his granddaughter. Sentence vacated.

News roundup: Fresh fingerprints, old gang databases, and a new defense.

Links to some recent articles:

El Chapo

1. The Economist reports, “Fingerprints can now be dated to within a day of when they were made,” making a case of “Whendunnit?”

2. The Los Angeles Times reports on February 3, 2020, “ LAPD scandal opens window into California’s secret gang database as reforms debated.” The scandal involves some 20 LAPD police officers “falsifying information used to identify gang members” in the state’s database, CalGang, and the state's lagging reform effort. Kansas’s system suffers from a similar lack of transparency, accountability, and veracity.* 

3. And in the category of “why didn’t I think of that?,” next time you have a hopeless case set for trial, just move to exclude all witnesses and evidence. Apparently, that’s a thing. Andy Borowitz of the New Yorker describes, “El Chapo outraged his trial included witnesses.” (quasi-satire warning).

--Melody

*If you are grappling with this issue, be sure to read, “Fear Itself: The impact of allegations of gang affiliation on pre-trial detention,” 23 St. Thomas L. Rev. 620 (2011).

Wait---I'm transporting WHAT?

Your client has been charged with a drug-trafficking conspiracy after being stopped carrying a backpack containing drugs. He knew that he was transporting drugs. But can he be convicted (and can his mandatory minimum sentence be enhanced) based on drug type and quantity absent proof that he knew these details? The Ninth Circuit has just asked the parties to brief these questions (under different facts) in United States v. Collazo, Ninth Circuit No. 15-50509, et seq. (order filed 1/29/2020). The case is in an interesting posture: After argument to a three-judge panel, the panel asked the parties to address whether the case should be heard initially en banc. The court ultimately voted to hear the matter en banc, and it was argued and submitted to the en banc court on January 13, 2020.

Last week, the en banc court requested further briefing, specifically:

1. How do United States v. Feola, 420 U.S. 671 (1975), and its progeny in this Circuit, see, e.g., United States v. Hubbard, 96 F.3d 1223, 1229 (9th Cir. 1996); United States v. Baker, 63 F.3d 1478, 1491 n.16 (9th Cir. 1995), apply to the government’s burden of proving that a defendant is guilty of conspiracy under 21 U.S.C. § 846 for agreeing to commit an offense under § 841(a), (b)? The parties should address whether the requisite intent for conspiracy under § 846 is the same as the requisite intent for distributing a controlled substance under § 841(a), (b). The parties should also address whether the government has to prove beyond a reasonable doubt that the scope of the defendant’s agreement for a § 846 and § 841(a), (b) offense includes a particular drug type and quantity. In connection with these issues, does the rule in Feola apply only to jurisdictional elements, or does it also apply to elements such as drug type and quantity?

2. Whether this Court should adopt Judge W. Fletcher’s position in United States v. Jefferson, 791 F.3d 1013, 1019 (9th Cir. 2015) (W. Fletcher, J., concurring), as to both substantive drug offenses under § 841(a) and conspiracy offenses under § 846. See Jefferson, 791 F.3d at 1023 (“I do not believe the government can subject the defendant to escalating mandatory minimums . . . without proving that he knew which illegal drug he was importing.”).

3. Whether this Court should adopt the approach reflected in United States v. Gentry, 941 F.3d 767, 785–86, 794 (5th Cir. 2019) (requiring that defendant “knew or reasonably should have known that the scope of the conspiracy involved at least 50 grams of a mixture containing a detectable amount of meth”).

The Ninth Circuit's en banc interest in these questions makes it a good time to preserve this issue by requesting appropriate jury instructions and challenging sentencing enhancements absent drug type/quantity admissions (at a guilty plea) or a verdict (at trial) in your own cases. Watch this space for further developments.  

Tenth Circuit Breviaries

Last week at the Tenth Circuit:

Fed. R. Evid. 404(b)

Evidence that the victim of a stabbing was under the influence of methamphetamine at the time of the stabbing was relevant for a non-propensity purpose: to establish and explain the victim's erratic and violent behavior, in support of the defendant's self-defense defense. This evidence should not have been excluded on 404(b) grounds. And thus the Tenth Circuit reverses a first-degree murder conviction in United States v. Tony. 

Parsing the Plea Agreement

Think you've extracted a promise from the government in your client's plea agreement? Think again---especially if the language includes a condition to be determined "in the government's sole discretion." That's the lesson of United States v. Rubbo, which holds that the government did not breach a plea agreement by recommending a smaller percentage departure than "promised." Read Rubbo for a sense of how the Tenth Circuit reads plea agreements that are conditioned on acts of the defendant as interpreted by the government.