Supreme Court Grants Cert. to FSA Pipeline Issue

Hill v. United States (11-5721)

Fair Sentencing Act and Crack Cocaine cases before and after its implementation are going to get their day in the Supreme Court!

Great news today from the United States Supreme Court. With a split in Circuit Court decisions regarding application of Crack Cocaine Sentencing Guideline reductions from the Fair Sentencing Act of 2010 (FSA), the Supreme Court has decided to hear arguments and resolve this issue once and for all.

In Hill v. United States, the defendant asserts that the reductions in Crack Cocaine sentences which arose from the passage of FSA applies to all defendants sentenced after the date of enactment of the new law: August 3, 2010.

Since the name “Fair Sentencing Act” implies that prior sentencing rules were unfair, its only logical to think that courts would apply the new guidelines to all defendants sentenced after its enactment, right? Wrong.

Although the First, Third, and Eleventh Circuits have agreed with this conclusion, the 7th Circuit has decided to apply the new reductions only to defendants who committed their crimes after August 3, 2010. All defendants already awaiting sentencing after that day were still sentenced under the older, harsher rules.

FSA Pipeline Cases Defined

These cases are called “Pipeline” cases. FSA pipeline cases are where defendants committed and charged with their offenses before the enactment of FSA, but had yet to be sentenced. Many believed they would get a more fair sentence immediately following the bill’s enactment date, and many received no such relief.

What Does This Mean?

The Supreme Court must now decide if the application of the newer, fairer law should have been applied to all pending sentences as of August 3, 2010. If it decides that this is the case, the decision is a huge victory for a lot of defendants with FSA pipeline cases.

Even if the Supreme Court decides that many defendants were sentenced under the old law unfairly, there is still work to be done. Each defendant must petition their sentencing court to reduce their sentence in the same way that the current USSC policy allows for. The biggest change that could come from this decision is the application of lengthy mandatory minimum sentences that could then be removed.

Keep checking in for the latest on the Hill case!

November Round-Up

From Crack Cocaine Sentence Reductions to Early Termination of Supervised Release

November has been a big month in the world of federal corrections. Due to all the recent events, this will be a lengthy post on all matters federal-criminal.

New Retroactive Crack Law

The United States Sentencing Commission’s 2011 Amendments to their Guidelines Manual were enacted on November 1st. In these amendments, the Sentencing Commission made the Fair Sentencing Act of 2010 retroactive in sentence reductions.

Inmates may now petition their sentencing courts to reduce their Crack Cocaine sentences if sentenced before August 3, 2010. There are too many details about this to effectively discuss in this singular article, but here are the highlights:

  1. Sentences must be for 21 U.S.C. §841 or §846
    • §841 (1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance; or (2) to create, distribute, or dispense, or possess with intent to distribute or dispense, a counterfeit substance.
    • §846 Any person who attempts or conspires to commit any offense defined in this subchapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy.
  2. Sentencing must be issued under the drug quantity table of the Guidelines Manual
  3. In most Circuit Courts, commission of stated crime must have occurred after August 3, 2010 instead of just the sentencing occurring after this date.
    Exceptions are discussed in this prior post.

Federal Probation Early Termination (Supervised Release Too!)

Judges are now being told to cut people loose from federal supervised release and probation. Another amendment to the USSC Guidelines Manual specifically tells federal judges to consider early termination for anybody who is in their final phase of supervision.

In basic terms, if a supervisee is done with treatment, community service, or any other requirement of probation that has an expiration, that person is eligible for early release. If all that is left on supervision is simply monitoring for violations, you have a good chance of getting free. More on this subject on our Federal Probation Termination page.

Supreme Court Round-Up

The United States Supreme Court is collecting cases to hear on November 22, 2011 regarding application of Fair Sentencing Act reductions to “pipeline” cases (see exceptions, above). Davis and Hill are two of the cases regarding this issue that the Supreme Court needs to decide on in order to rectify a Circuit split. The 1st, 3rd, and 11th Circuits apply FSA to all cases sentenced after 8/3/10. The 7th Circuit applies the reduction to cases where the actual crime was committed after that date. All other Circuits are currently mute on the subject.

Also on the docket is the issue of juveniles receiving Life Without Parole sentences. Originally discussed back in 2010 on Sentencing Law and Policy, the Supreme Court is now taking another look at the constitutionality of sentencing kids to die in prison.

Below we’ve summarized the rest of what the Supreme Court has done so far this year:

1. A unanimous AEDPA ruling for the state: “The first opinion of the Term is in Greene v. Fisher. Justice Scalia wrote the opinion for a unanimous Court, which held that for purposes of the Antiterrorism and Effective Death Penalty Act, ‘clearly established federal law’ is limited to the Supreme Court’s decisions ‘as of the time of the relevant state-court adjudication on the merits.’”

2. A hint during oral argument in US v. Jones (transcript here) that GPS tracking might require a warrant: “Midway through a federal government lawyer’s plea Tuesday for unrestricted power for police to use new GPS technology to track cars and trucks on public roads, Chief Justice John G. Roberts, Jr., sketched out just how the Court may well restrict the practice. Despite an unqualified prior statement by the Court that one moving about in public has absolutely no right to expect privacy, the Chief Justice said that such a right might exist, after all, and it could trump the fact that the movement was in public. If the Court can find a way to say just that, police almost certainly would have to get a warrant before using GPS to monitor where suspects go.”

3. A suggestion during oral argument in Smith v. Cain (transcript here) that SCOTUS that sometimes prosecutors should stop defending hinky convictions: “There may be many ways for a lawyer to realize that an argument before the Supreme Court is falling flat, but none can top this: a Justice asking if the counsel had ever considered simply forfeiting the case. That is what happened on Tuesday to Donna R. Andrieu, an assistant district attorney in New Orleans, as her argument lay all about her, in shambles.”

Federal Inmate-Related Bills In Congress

This isn’t specific to November, but many inmates and families of inmates are hungry for knowledge of what Congress will do next to give relief to federal inmates. Here’s a short list of bills currently proposed for this session:

  • H.R. 2316, the Fair Sentencing Clarification Act retroactively applies the sentence reductions included in last year’s Fair Sentencing Act (FSA). This means that inmates rendered ineligible for reductions because of preexisting mandatory minimum sentences would now benefit from FSA.((Read the 2014 version of the bill here)
  • H.R. 2242, Fairness in Cocaine Sentencing Act of 2011 eliminates any disparity between crack and powder cocaine sentences. Its not retroactive, but makes the ratio that FSA brought from 100:1 to 18:1, down to 1:1.
  • H.R. 2344, the Prisoner Incentive Act of 2011 rewrites the good time statute to make clear that a prisoner is eligible to earn up to 54 days of good time credit per year for each year of the prisoner’s sentence. Since 1988, the Bureau of Prisons (BOP) has interpreted the good time statute to award good time credit based on the time actually served by the prisoner, not the sentence imposed by the judge. As a result, prisoners only earn a maximum of 47 days of good time for each year to which they are sentenced, instead of the 54 days per year many believed Congress intended.
  • H.R. 223, the Federal Prison Bureau Nonviolent Offender Relief Act of 2011 directs the Bureau of Prisons to release individuals from prison who have served 50 percent or more of their sentence if that prisoner: (1) is 45 years of age or older; (2) has never been convicted of a crime of violence; and (3) has not engaged in any violation, involving violent conduct, of institutional disciplinary regulations. The bill is intended to reduce overcrowding in federal prisons and give those nonviolent offenders over the age of 45 a second chance.

For more information on bills currently in Congress, visit the FAMM page regarding the subject.

As the holidays approach, hope can either strengthen or wane. PCR Consultants wishes all the best to the people it serves: Defendants, Inmates, Released Offenders, and their families. For more information on any subject here, give us a call at (480) 382-9287.

Early Termination of Federal Probation – Policy Factors

Early Termination of Federal Probation – The Policy That Guides Judges

Post #2 of a 3-Part Series

In this previous post on early termination of federal probation, we discussed the factors judges must consider by law when deciding whether or not to let somebody on federal supervision go early. In this post we’ll discuss the policy factors judges consider when making these decisions.

These policy factors are those that probation officers use when asked to make a recommendation regarding early termination of federal supervision. They are the standards adopted by the Judicial Conference Committee on Criminal Law in March of 2003.

Policy Factors

There are nine of these policy factors, and each take a closer look at the offender

A close look at these factors show that there are a lot of areas to consider when attempting to terminate a term of federal supervision. The entire history of an offender is considered. Find out about these factors by reading our e-book specifically about early termination of federal probation.

You can read our comprehensive e-book on early termination of federal probation here.

Those that haven’t gotten into any trouble while on supervision, don’t see their Probation Officer’s more than just a few times per year, and are a complete waste of time and money for the government to continue to supervise, have the greatest chance for early termination.

There are however, two factors not shown here than make the biggest difference. In the next post, we’ll take a look at both.

Early Release from Federal Probation – What Judges Must Consider

Early Release from Federal Probation

Post #1 of a 3-Part Series

In this first part to our series on early release from federal probation early (or supervised release), we’ll take a close look at the statutory factors that judges must consider when somebody on supervision asks for early termination. The only unbreakable rule here is that one year of supervision must expire before anybody can motion for early termination. The rest is up to the judge.

The next installment deals with the factors by policy that judges do, or may, consider.

Judicial Considerations by Law

Most of the factors judges must use to determine an appropriate sentence1 are also required to be used when terminating part of that sentence. Since probation and supervised release are part of a sentence, terminating them early is the same thing as reducing sentences.

Title 18 U.S.C. §3582(a) says that:

“(a) Factors To Be Considered in Imposing a Term of Imprisonment.— The court, in determining whether to impose a term of imprisonment, and, if a term of imprisonment is to be imposed, in determining the length of the term, shall consider the factors set forth in section 3553 (a) to the extent that they are applicable, recognizing that imprisonment is not an appropriate means of promoting correction and rehabilitation. In determining whether to make a recommendation concerning the type of prison facility appropriate for the defendant, the court shall consider any pertinent policy statements issued by the Sentencing Commission pursuant to 28 U.S.C. 994 (a)(2).” (emphasis added)

So what are these factors? You can read what these factors are in the law here.

For a detailed review and discussion of what these factors mean, read our comprehensive e-book on terminating federal supervised release and probation here.

The best news, however is a 2011 amendment to the Guidelines Manual where the USSC2 specifically encourages judges grant early release from federa

l probation in specific cases. This is the first time they’ve every encouraged early termination of supervision at all.

What this all means

Not since the 80’s has there been a more advantageous time in the federal system to get released early from supervision. Whether on probation or supervised release, the USSC has realized that probation officers have too many people to supervise, and no budget to hire more probation officers. So the logical conclusion is to cut low-risk people free from supervision!

Get Started Today

To get started with your early termination documents now, contact us by e-mail or phone to get the process going. Its fast and easy!

 

Read our free e-book on the A-to-Z of federal probation and supervision!

  1. At least what is legally considered an appropriate sentence []
  2. United States Sentencing Commission []

Free Crack Cocaine Sentence Reduction Guidebook

PCR Consultants Has Published a Book(let)!

Many of the calls we get here at PCR Consultants are about the November 1, 2011 Sentencing Guidelines Manual Amendment regarding crack cocaine sentence reductions. The first question potential clients ask is about eligibility.

Who is eligible? What makes or breaks eligibility?

As part of our services to families and inmates who are interested in these sentence reductions, we conduct informal case-eligibility reviews to give confidence in eligibility based upon court records. Now, you can read all about what makes and breaks eligibility!

To help, PCR Consultants has written and published a free resource. Now, we’re making this guidebook available for free download here:

Let Us Help You!

Call us at (480) 382-9287 and get a free consultation to find out more information about how we can help you and your incarcerated loved one get these sentences reduced.

For more ways to contact us, visit our contact us page for contact form and e-mail addresses.

Learn about us and how our services work on our about page.