2255 Motion to Vacate or Set Aside Sentence

How to file a §2255 Motion to Vacate?

This is a very big question to answer, but the question that needs to be answered first is, “Can and should I file a Title 28 U.S.C. §2255 Appeal?”

Again, this is a big question, but it is just as important as how to file. A motion of this type is sort of an appeal, without being a direct appeal. It is a collateral attack on the sentence of incarceration itself for constitutional issues.

First, only federal inmates can file one. The normal course of criminal cases in the federal criminal system is a direct appeal. Second, when the direct appeal didn’t work, was never filed, doesn’t have the ability to work, or simply doesn’t meet the needs of the defendant, a §2255 is the way to go.

In order to be eligible and qualified to file one of these types of appeals, a few criteria need to be met:

  1. Only federal inmates may file;
  2. Complaints cannot be made if they could have been made on direct appeal;
  3. Complaints must be an attack on the sentence itself, not issues related to confinement (such as RDAP acceptance, placement in halfway house, or holdings in Solitary/SHU);

Issues for Direct Appeal

For direct appeals, there are a number of issues that can be brought up. This should be discussed first, before a discussion of the issues that can be raised on 2255 filings. It’s a good way to separate the two.

For a direct appeal there are many issues that can generate a successfully filed appeal. For starters, if a sentencing judge misapplies the guidelines manual by adding or subtracting points for issues not stipulated in a plea agreement, a direct appeal is the way to go. Second, if the prosecution has withheld exonerating evidence, a direct appeal is the way to go.

Basically, mistakes in the administration of justice during an original sentencing or trial are the only issues that have merit on direct appeal. As long as the defense attorney did their job well during the original criminal penalty phase, this is usually sufficient.

IMPORTANT: Issues on direct appeal must have been raised at the district level already, but decided wrong. Appeals courts will not listen to new arguments, only ones that have been already raised at the court below them.

Issues for §2255 Motions

It is a sad fact that most federal criminal defendants cannot afford to hire adequate legal representation for themselves when charged with a federal crime. A vast majority of federal defendants are assigned a public federal defender to represent them.

Federal defenders are a amazing at their jobs, usually. However, they also have a case-load that is MUCH larger than privately hired lawyers and will often make errors or be ineffective because of it. It cannot be stressed enough that great lawyers can make big mistakes when they are overworked, and no lawyer is more overworked than a federal public defender.

With that out of the way, one of the triggers that is most often used for the basis of §2255 filings is the ineffective assistance of counsel.

**A Good Example**
One client we had in early 2017 was eligible and appropriate for a reduction in offense level points because he was a small pawn in a large criminal fraud conspiracy. A “minor role” adjustment is ready and available in the Sentencing Guidelines Manual for defendants just like him. Unfortunately, this adjustment is applied very sparingly in some districts, and liberally in others.

Our client’s lawyer did not mention or fight for this adjustment, which would have been totally appropriate and would have shaved a year or two off of his sentence. So here is where a 2255 works well, and for the following reasons:

  1. The client’s lawyer failed to argue for this adjustment at original sentence, and was therefore ineffective;
  2. The sixth amendment in the Bill of Rights guarantees effective counsel, so this issues is a constitutional one, meaning a §2255 is the right course to take;
  3. The issue could not be brought up on direct appeal because it was not raised at the original sentencing hearing; and,
  4. The issue is timely because, last year, the Sentencing Commission recognized that this adjustment was being applied unevenly between the districts and issued a clarifying amendment to encourage a more even application, triggering a “new evidence” type of claim for our client.

There are far too many issues that could trigger a §2255 to be successfully argued and accepted by the district court of sentencing, so we won’t make a big list here. However, know that anything from a sentence that goes above the statutory maximum allowed by law, or issues that should have been raised during the original prosecution by the defense counsel, but was not, are all covered under the §2255 umbrella.

How We Work

PCR Consultants is a document preparation company. We prepare solid documents that our clients can use to file for all sorts of relief in the federal criminal justice system. Anything from §2255 Motions to Requests for Early Release from Probation.

We aren’t lawyers, and we are not a law firm. That means we don’t represent our clients in court, and cannot file for them. What we do is write killer documents that will make the defendant HEARD by the district court, and include with them an application for the appointment of defense counsel.

Inmates are not guaranteed free defense attorney’s as a right during the process of a §2255, this is to protect the federal defender’s office from being inundated with work in this area. Most of these motions that are filed have little to no merit, or are dismissed for various reasons (such as the ability to raise the issue on direct appeal or no standing to argue new constitutional law in a habeas proceeding).

However, once a judge grants an evidentiary hearing on a §2255 that is found to have merit, appointment of counsel is mandatory (according to Federal Rules Governing §2255 Procedure 8(c)). Our service comes as a package deal, we write:

  1. The originating motion, supplemented with the district’s own forms (if required);
  2. A motion for an evidentiary hearing if the judge finds merit in the request;
  3. A motion to proceed as indigent (In Forma Pauperis); and,
  4. A motion for the appointment counsel if the motion for evidentiary hearing is granted.

What Happens After the Motion is Filed

After the documents are filed, we’re hands-off. Once they are filed, a chain of events will occur. It starts with the original sentencing judge, who will examine the motion for it’s merits and either dismiss the motion or order the government to file a response.

After the government responds, the defendant might want to file a rebuttal to the government’s arguments. This might be allowed under local criminal rules, or it might not. If not, the rebuttal must be submitted before the Court orders or it won’t be considered at all. Alternatively, the defendant can file a motion for leave to reply, which will give him/her more time to formulate a response.

Now is the time the judge will either grant or deny the defendant and the relief they’re seeking. In cases where facts are in dispute, the Court can grant an evidentiary hearing where, as was discussed earlier, a judge is required to appoint counsel for defendants who cannot afford one of their own.

Time Limits

Unlike direct appeals, which are required to be filed within 14 days (usually) after the pronouncement of a sentence, a §2255 Motion can be filed within a 1 year time period. That is, the defendant/inmate has to file this motion within one year of the latest of four events:

  1. The date of final judgment;
  2. The date any removal of obstacles to filing the motion by government action in violation of the constitution were removed;
  3. The date where the Supreme Court rules on a case which triggers an applicable argument to the defendant/inmate;
  4. The date where supporting facts could have been discovered through research.For clarification, in #1 above, a judgment becomes final when it is pronounced or when any direct appeal to that judgment was denied. So if the Supreme Court refuses to hear an appeal, then the date of final judgment is the date that the Supreme Court petition for hearing is denied.

One Shot

Defendants only get one shot at filing a §2255, except in rare cases where new evidence is found, or the Supreme Court makes a startling ruling that changes the process of similar cases. Many, many inmates get help from other inmates they are incarcerated with to file a motion like this. Some are very good, but most times this is a total waste of the one shot a defendant gets at filing a motion like this.

The moral of this story?

Kebodeaux and the Supreme Court

Kebodeaux and the Supreme Court

There is a case currently pending review by the United States Supreme Court (SCOTUS) regarding the federal sex offender registry (SORNA). The case is U.S. v. Kebodeaux (12-418). The SCOTUS docket page can be found here, and the 5th Circuit ruling below can be found here.

Here is the short story of Kebodeaux: As a US Air Force Airman, 21-year-old Kebodeaux was convicted in military court of having sex with a 15-year-old girl. He was sentenced to 3 months’ confinement and a bad conduct discharge. After serving this sentence, he moved home to Texas as civilian. He registered as a sex offender and in 2007 he updated his registry information because he moved from San Antonio to El Paso. Later, he moved back and didn’t bother telling anybody about it. Thus began his federal prosecution for failing to register as a sex offender.

After the 5th Circuit Court of Appeals ruled against Kebodeaux, they decided to hear the case as a full panel and reversed, saying what happened to the defendant amounted to, “[U]nending criminal authority over him.”

This blog post is a review of two things. First, it reviews the last decade of sex offender registry laws and lower court decisions since Smith v. Doe, 538 U.S. 84 (2003).

Second, it reviews the Defendant’s legal brief in opposition to Cert review by SCOTUS and why such review may be indicative of larger change to come in the high court’s opinion of sex offender registries. Specifically, the notion that registries are still a “Civil regulatory scheme,” as they were for Smith v. Doe in 2003.

Smith v. Doe, A Decade Later

This case is the last instance of a case where the Supreme Court took a broad look at an individual state’s sex offender registry to determine if the conditions imposed by that registry were punishment or civil and regulatory. This distinction is vitally important to the way both states and the federal government execute their respective registry requirements.

If a registry is punishment, it must be part of a sentence imposed using the full due process of law afforded by the U.S. Constitution which cannot be changed later to be more restrictive. If it is changed this way, it violates the Ex Post Facto Clause of the U.S. Constitution.

On the other hand, if a registry is just civil and regulatory,1 it can be changed at any time to be made more strict without any legal concern. Any new changes can therefore be applied retroactively to everybody these laws target.

The ruling in Smith v. Doe defined Alaska’s sex offender registry as civil (not punishment) and could therefore be applied to anybody with a sex offense, no matter how long ago their crime was. In effect, this gave all states a “Green Light” to make nearly any restriction on sex offenders without concern for its constitutionality. Worse still, these restrictions can be imposed on all former offenders.2

Examples of the effect of Smith v. Doe can be seen all over the country. States like Louisiana have enacted laws prohibiting sex offenders from participating in any holiday that involves constumes. Texas and California have laws that require registration for life, no matter the severity of the underlying offense. States that have tried to align their registries to meet federal minimum standards constantly re-classify sex offenders into higher levels, increasing their terms of registration by years or even decades. The list is much longer, but a growing list of tighter restrictions around the country make sex offender registries ripe for another review of Smith v. Doe.

Shifting Tides

In recent years, there has been a change in how state and federal courts have been viewing registry restrictions. Restrictions on registered sex offenders, as discussed above, have been getting progressively tighter over the last decade. In just the last 2 years, courts have held that restrictions on free speech and warrant-less searches of registrants homes violate both state and federal constitutional protections to all citizens.

Examples of this are from Indiana, where the 7th Circuit Court of Appeals struck down a statute banning sex offenders from social networking sites on free speech grounds. See a similar decision out of Louisiana. The Ohio Supreme Court has thrice found that the restrictions from meeting federal minimum requirements for registries are unconstitutional when applied retroactively (here, and here). Laws violating free speech and search and seizure protections were struck down in Nebraska in 2012. In that case, the defendants were actually awarded almost $300,000 in attorney’s fees used to fight their case.

While each of these decision do not strike at the core issues of sex offender registries, they put the writing on the wall that judicial opinions are changing with the stricter provisions of registry laws which have run rampant since Smith v. Doe.

Back to Kebodeaux

By all accounts, the scope of the Kebodeaux case is very small. After losing in the 5th Circuit Court of Appeals, the government applied to SCOTUS for their review. The defense team filed a motion to oppose this review, citing the limited impact its decision would have.

Both sides of this argument agree that the practical effect of a SCOTUS ruling in this case is small:

The Fifth Circuit Court of Appeals decided Kebodeaux on “narrow grounds,” based on Kebodeaux’s “unusual circumstances,” as well as “the specific and limited facts” presented by his case. For that reason, the case will have limited practical effect, as the Government concedes. Accordingly, the questions presented in Kebodeaux’s case are not of sufficient importance to warrant this Court’s review. Nor does the case embody a conflict among the lower courts, or present a matter affecting the interests of the nation. (Internal citations omitted)

The defense brief also points out that their case is of little importance and doesn’t deserve the court’s valuable time:

Because SORNA applies to Kebodeaux by virtue of a federal regulation, the Fifth Circuit’s ruling does not invalidate SORNA’s statutory language. By its terms, SORNA imposes an initial registration requirement on federal offenders who were in custody, or being sentenced at the time of SORNA’s passage. . .These initial registration requirements, which did not apply to Kebodeaux because he satisfied his federal sentence in 1999, remain intact.

The rest of the defense’s arguments against SCOTUS review of this case rest on the fact that there is no conflict between lower courts concerning this issue, and that this case makes a poor vehicle for deciding these issues as the details aren’t as clear-cut as they could be to create a broad ruling to a wide-range of potential defendants down the road.

The Writing on the Wall

So why, then would SCOTUS grant review in this case? There are many reasons for this review, but only two are interesting enough to follow this case more closely.

First, this case could be one more decision from SCOTUS that mirrors other minor decisions like Reynolds v. U.S. (10-6549). More to the point, a decision in this case could be one more chip in the protective wall SCOTUS created to protect state and federal registries by Smith v. Doe. The changing opinions of the judiciary on sex offender issues is reflected by these small decisions.

Second, and more promising, is the chance that SCOTUS may use this case as a vehicle to revisit their own decision in Smith v. Doe. Similar to the circumstances surrounding the case of United States v. Booker, 543 U.S. 220 (2005), the high court can use a case that may not specifically address an issue-head on, but creates a vehicle to decide broader issues and decisions.3

So can, and will, the Supreme Court use the Kebodeaux as a vehicle to make a decision that has broader implications than what this case presents on face-value? Only time will tell. A decision on this case is expected for late June, and this blog will be updated when new information comes to light.

  1. like registering a vehicle with the DMV []
  2. A quick note. Any punishment that isn’t considered Cruel and Unusual under current 8th Amendment standards can be imposed at sentencing. The issue surrounding sex offender registries is not these restrictions can be imposed, but whether or not they can be imposed to offenders convicted before a law’s enactment without triggering ex post facto violations. []
  3. In Booker, enhanced sentencing based on facts found outside of a jury was at issue. However, the effect of this decision also rendered unconstitutional the mandatory nature of the Sentencing Guidelines published by the United States Sentencing Commission []

Notable Federal Sentencing, Crime and Defense News

The last few weeks has held a substantial amount of news concerning federal crime, sentencing, and defense news. Although there is not going to be an in-depth discussion on each topic here today, links are provided to source materials or detailed discussions and analyses.

U.S. Supreme Court

After a long break, the Supreme Court is back in action. Here is an overview of the recent decisions:

Howes v. Fields: The Sixth Circuit held that an inmate who is questions about events outside of prison are ‘in custody’ for Miranda purposes. The Supreme Court reverses the Circuit ruling, stating “The Sixth Circuit’s categorical rule—that imprisonment, questioning in private, and questioning about events in the outside worldcreate a custodial situation for Miranda purposes—is simply wrong.”

Kawashima v. Holder: The Ninth Circuit ruling that aiding and assisting in the preparation of a false tax return is an aggravated felony if the government’s revenue loss is greater than $10,000 is affirmed. “Convictions under 26 U. S. C. §§7206(1) and (2) in which the Government’s revenue loss exceeds $10,000 qualify as aggravated felonies pursuant to Clause (i).”

Wetzel v. Lambert: This case involves AEDPA questions concerning habeas relief for a defendant on death row in Pennsylvania. The Supreme Court, in a per curiam opinion, vacated the Third Circuit, and remanded. Explanation of habeas relief under AEDPA is quoted from the opinion below.

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) precludes a federal court from granting a writ of habeas corpus to a state prisoner unless the state court’s adjudication of his claim “resulted in a decision that was contrary to, or involved an unreasonable application of, a clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U. S. C. 2254(d)(1).

United States Sentencing Commission

Last week, the USSC held two important and public hearings regarding sentencing policy in the federal justice system. One focused on broad sentencing options, entitled “Federal Sentencing Options after Booker” (written testimonies). From professor Berman over at Sentencing Law and Policy:

There was a rough consensus, at least coming from all the judges, prosecutors, defense attorneys and public policy groups (whose written testimony is still linked via this official agenda here), that the broader post-Booker sentencing structure is, as a matter of policy and practice, functioning reasonably well all things considered.

The second hearing addressed the sentencing guidelines concerning child pornography offenses (written testimonies). This area is functioning so poorly that defendants who possess visual depictions of child sexual abuse are often punished more severely than the perpetrators of the sex abuse that is depicted. In some cases, possessors of child pornography are sentenced to longer incarceration terms than rapists and murderers.1

Sentencing and Crime Articles

Here are a few of the many academic and opinion articles published on federal criminal law.

The High Cost of Prisons: Using Scarce Resources Wisely.

“The Gray Box”: An Investigation of Solitary Confinement in U.S. Prisons.

Round-Up

There is a lot of information to take in here, as there is always a lot of discussion about federal criminal practice and policy. Not many changes are made from Congress or even the Sentencing Commission, but the pendulum is swinging away from locking up everybody possible. Talk turns into action, it just seems to take decades to do so (see the obvious problems with the Cocaine v. Crack Cocaine sentence disparity).

Check back often for more on federal cases, sentencing policy, and discussions on how consultants can help you use this information to your advantage!

  1. Deconstructing the Myth of Careful Study: A Primer on the Flawed Progression of the Child Pornography Guidelines. Troy Stabenow (2009) at 38. “Child pornography is a pernicious evil. However, the hysteria associated with public events such as the Dateline “To Catch a Predator” series is not a sound basis for sentencing. Since 1991, the punishment for these offenses has been dramatically and irrationally increased, to the point where today rapists, murderers, and molesters receive lesser sentences than would a man who swaps a few, thirty-year old, pictures of child pornography that were produced before the defendant was even born.” []

In Colorado, Defendants Must do Prosecution’s Job

5th Amendment Under Fire in Fricosu Case

Ramona Fricosu, of Peyton, Colorado is accused of being a part of a mortgage scam. In the course of the investigation against her, search warrants were executed on May 14th of 2010. In that search, the FBI took a Toshiba Satellite M305 laptop.

Then came a problem. Investigators discovered that her laptop’s hard drive was encrypted very very well. Therefore, files that the investigators felt were incriminating1 and vital to the future prosecution were locked away. They concluded it would take a really long time to decrypt the entire drive.

Since this case is being prosecuted in America, all criminal prosecutions are required to be done so with full due process of law2, which includes the right to a speedy trial3. So the decade or more it would take for the prosecution (read: investigative bureau) to decrypt the files would necessarily violate Miss Fricosu’s rights and the charges would not endure.

So what is a judge to do? Option one is to realize that the laws are in place to protect the citizens of the United States against the overpowering force of an unbridled government4. He would therefore throw the case out if the investigation delayed trial longer than a certain period of time. Option two is to order the defendant to decrypt the laptop for investigators.

Last Monday, Judge Robert Blackburn, federal judge for the District of Colorado, chose the second option. In United States v. Fricuso, Judge Blackburn decided that it did not violate the Fricosu’s Fifth Amendment protection against self incrimination to order her to decrypt her laptop hard drive.

Through protests from the defense that this order violates a defendant’s rights, and even an amicus brief from the Electronic Frontier Foundation (EFF) in support of Miss Fricosu, Judge Blackburn decided what could be a dangerous legal precedent on Fifth Amendment rights in the digital age.

From that brief:

“The government makes an aggressive argument here that may have far-reaching consequences for all encryption users. Fricosu will be made a witness against herself if she is forced to supply information that will give prosecutors access to files they speculate will be helpful to their case but cannot identify with any specificity…”

Ruling

Blackburn ruled that the Fifth Amendment posed no barrier to his decryption order. The Fifth Amendment says that nobody may be “compelled in any criminal case to be a witness against himself,” which has become known as the right to avoid self-incrimination. (Read the entire 10-page opinion here)

“I find and conclude that the Fifth Amendment is not implicated by requiring production of the unencrypted contents of the Toshiba Satellite M305 laptop computer,”

Fricosu has declined to decrypt a laptop encrypted with Symantec’s PGP Desktop. Defense counsel Phil Dubois, who once represented Phil Zimmermann, PGP’s creator, is now fighting in the federal courts over encryption again.

“I hope to get a stay of execution of this order so we can file an appeal to the 10th Circuit Court of Appeals … I think it’s a matter of national importance. It should not be treated as though it’s just another day in Fourth Amendment litigation.”
– Phil Dubois

Fricosu actually may not even be able to decrypt the laptop at all. “If that’s the case, then we’ll report that fact to the court, and the law is fairly clear that people cannot be punished for failure to do things they are unable to do,” said Dubois.

The U.S. Department of Justice argued, as CNET reported last summer, that Americans’ Fifth Amendment right to remain silent doesn’t apply to their encryption passwords. To the U.S. Justice Department, the requested court order represents a simple extension of prosecutors’ long-standing ability to assemble information that could become evidence during a trial. Justice claims that:

“Public interests will be harmed absent requiring defendants to make available unencrypted contents in circumstances like these. Failing to compel Ms. Fricosu amounts to a concession to her and potential criminals (be it in child exploitation, national security, terrorism, financial crimes or drug trafficking cases) that encrypting all inculpatory digital evidence will serve to defeat the efforts of law enforcement officers to obtain such evidence through judicially authorized search warrants, and thus make their prosecution impossible.”

Much of the discussion on this issue is about what analogy comes closest to this case. Prosecutors argue that PGP passphrases are like a defendant possessing a key to a safe filled with incriminating documents. That defendant can usually be legally compelled to hand over the key.

Case Law

There are no decisions from the United States Supreme Court on this specific topic, but a number of decisions around the country from lower courts informed Blackburn’s decision. Here is a brief look at decisions from Blackburn’s order:

  • United States v. Kirschner – Kirschner was indicted on receiving child pornography. Judge Borman of the Eastern District of Michigan granted the defendant’s Motion to Quash the government’s attempt to compel a password from Kirschner. From that order:

    “In the instant case, even if the government provides Defendant with immunity with regard to the act of producing the password to the grand jury, that does not suffice to protect Defendant’s invocation of his Fifth Amendment privilege in response to questioning that would require him to reveal his password.”

  • United States v. Boucher – Boucher was another child pornography case, this time from the District of Vermont, involving compelling a password from the defendant. In 2007, Magistrate Judge Jerome J. Niedermeier, ruled that such an action would violate Fifth Amendment protections:

    “Compelling Boucher to enter the password forces him to produce evidence that could be used to incriminate him. Producing the password, as if it were a key to a locked container, forces Boucher to produce the contents of his laptop.”

    Later, in an abrupt reversal, U.S. District Judge William Sessions ruled that Boucher did not have a Fifth Amendment right to keep the files encrypted after prosecutors narrowed their request, saying they only wanted Boucher to decrypt the contents of his hard drive before the grand jury, by typing in his password in front of them.

    Boucher appealed to the Second Circuit, and the Appeals Court decided in favor of Boucher5.

  • Accord United States v. Gavegnano, 2009 WL 106370 (4th Cir. Jan. 16, 2009) – Where the “government independently proved that defendant was sole user and possessor of computer, defendant’s revelation of password not subject to suppression”

Conclusion of the Order

Blackburn granted the order in two ways. First, he invoked the All Writs Act6 which “enables the court to issues orders to effectuate an existing search warrant”7.

Second, in a move of legal semantics, Fricosu is not ordered to reveal her password to the government. That has been ruled to violate her Fifth Amendment protections against self-incrimination. Instead, the government only requested that she use her password to decrypt the hard drive in question and then hand the decrypted hard drive over to the government.

Order

THEREFORE, IT IS ORDERED as follows:
1. That the government’s Application Under the All Writs Act Requiring Defendant Fricosu To Assist in the Execution of Previously Issued Search Warrants [#111] filed May 6, 2011, is GRANTED:
2. That Ms. Fricosu’s Motion for Discovery – Seized Hard Drive [#101], filed April 27, 2011, is GRANTED;
3. That on or before February 6, 2012, the government SHALL PROVIDE counsel for defendant, Ramona Camelia Fricosu, with a copy of the hard drive of the Toshiba Satellite M305 laptop computer, serial number 98158161W;
4. That on or before February 21, 2012, defendant, Ramona Camelia Fricosu, SHALL PROVIDE counsel for the government in this case with an unencrypted copy of the hard drive of the Toshiba Satellite M305 laptop computer, serial number 98158161W; and
5. That the government SHALL BE precluded from using Ms. Fricosu’s act of production of the unencrypted contents of the computer’s hard drive against her in any prosecution.

  1. Due to a recorded and ill-advised telephone conversation with Fricosu’s ex-husband who was incarcerated []
  2. See the 14th Amendment to the United States Constitution []
  3. See the 6th Amendment to the United States Constitution []
  4. Over-dramatization intended to illustrate reductio ad absurdum []
  5. Although no news was readily found on the Circuit ruling, the lawfirm of James Budreau, attorney for Boucher, says it did. This leaves the question on whether the move itself was quashed, or if the production of the password (not the production of an unencrypted drive, was ultimately decided against. []
  6. 28 U.S.C. §1651 []
  7. See United States v. New York Telephone Co., 434 U.S. 159, 172, 98 S.Ct. 364, 372, 54 L.Ed.2d 376 (1977) (“This Court has repeatedly recognized the power of a federal court to issue such commands under the All Writs Act as may be necessary or appropriate to effectuate and prevent the frustration of orders it has previously issued in its exercise of jurisdiction otherwise obtained.”); see also In re Application of United States for an Order Authorizing Disclosure of Location Information of a Specified Wireless Telephone, – F.Supp.2d – , 2011 WL 3424470 at *44 (D. Md. Aug. 3, 2011) (citing cases in which All Writs Act used to effectuate existing search or arrest warrant). []

Supreme Court Says “No” to GPS Tracking Without Warrant

United States v. Jones

The United States Supreme Court decided an important case last week concerning Fourth Amendment rights and police GPS tracking without warrant using devices placed on suspected criminal’s vehicles. The Obama administration pressed for a ruling which allowed law enforcement the right to use such tactics without a warrant to aid drug and terrorist investigations.

The Supreme Court, however, disagreed. The ability to use these tactics without a warrant may seem like a good idea in well-intentioned investigations against “bad guys.” However, the ever-increasing technology that pervades society today makes a such a power a very fearful potential abuse of authority.

In the constant battle against “Big Brother”, the decision in United States v. Jones is a big win for privacy rights of United States citizens.

Analysis

An excerpt from the SCOTUS Blog analysis:

Opinion recap: Tight limit on police GPS use
by Lyle Denniston

“Amid a disagreement about what a privacy invasion meant in 1791, but with a strong embrace of privacy in the electronic age, the Supreme Court on Monday suggested that police probably should get a warrant before they physically attach an electronic monitor — like a GPS — to a car or truck, while leaving some doubt about how long such a device may be used, and about what kinds of suspected crimes allow its use. In effect, the Court seemed to have launched years of new lawsuits to sort it all out. The choice Monday was between a minimalist approach, one in the middle, and an expansive view of Fourth Amendment privacy. Each had support among the Justices, but counting the votes was a bit tricky.

“The Court flatly rejected the government’s argument that it was simply not a search, in the constitutional sense, to physically — and secretly — attach a small GPS tracker on the underside of the car used by a man, Antoine Jones, who was a principal target of an investigation into a drug-running operation in Washington, D.C., and its suburbs. The device was installed without a warrant (one had been issued, but it ran out before it was put on the Jeep Cherokee and, in any event, it was limited to Washington, and the device was installed in Maryland). And, once installed (and serviced when the batteries ran down), it remained on the Jeep around the clock for 28 days. The 2,000-page log of where Jones had driven the Jeep was used to convict him of a drug-trafficking conspiracy, leading to a life prison sentence and an order to forfeit $1 million in illegal drug proceeds. One place where the device showed Jones had visited was a “stash house” where $850,000 in cash, 97 kilograms of cocaine, and 1 kilogram of crack cocaine turned up.”

 

Federal Judges Need Empowerment

Why the Circuits and U.S. Supreme Court Need to Delegate More Effectively

In a recent ninth circuit decision, judge Diarmuid F. O’Scannlain wrote a 10-page concurring opinion on a moot finding. In this opinion, O’Scannlain lectured the judge from the lower court (Hon. Judge Phillips: Riverside, CA) and the rest of the judiciary against creating new rights for homosexuals out of the Supreme Court’s 2003 decision in Lawrence v. Texas. The per curiam opinion, including O’Scannlain’s opinion is available here.

There is a problem here. The opinion of the Circuit found the case moot, but that didn’t seem to be enough for one of its judges. The issue there was a now-famous lower court decision by Judge Phillips which called the Congressionally enacted “Don’t Ask, Don’t Tell” policy unconstitutional. Because this policy has now been repealed by Congress, the case is moot.

This, however, didn’t stop O’Scannlain from blasting the lower court’s decision. From SCOTUS Blog:

“Accusing a federal trial judge of misusing her authority when she struck down the military’s ban on gays and lesbians in the service, a federal appeals court judge on Thursday lectured the rest of the judiciary against creating new rights for homosexuals out of the Supreme Court’s famous ruling eight years ago in Lawrence v. Texas. Circuit Judge Diarmuid F. O’Scannlain did so as the Ninth Circuit Court threw out that lower court judge’s ruling interpreting Lawrence broadly. The three-judge panel found that decision by District Judge Virginia A. Philllips to be moot, because the so-called “don’t ask/don’t tell” policy at issue has now been repealed by Congress.”

The Core Problem

The problem here is not the constitutional application of a now-dead policy. It has much less to do with the rights of homosexuals as it does the rights of the rest of the American population. There is a culture within the judiciary that seems to neuter federal judges in District courts from making many landmark decisions.

Most huge decisions are, understandably, made by the Supreme Court. This occurs when issues arise of Circuit splits, constitutional interpretation questions, and other case-specific reasons the United States Supreme Court (SCOTUS) uses for granting Cert. The deferment to Supreme Court authority is a necessary part of the check-and-balance process of American law.

That said, federal judges at the District level appear afraid to rule anew on any major issue for the exact reason here. If a judge sticks his or her neck out on an issue they believe is blatantly unconstitutional, they risk being publicly admonished by their Circuit brethren for over-stepping their bounds.

This Sounds Familiar

The military had this problem in Vietnam. Specific targets had to be affirmed by high-ranking generals and sometimes even the President before being hit. Sometimes this decision was made, for or against, whilst a bombing pilot was en-route to the target.

The idea of delegating this authority to lower-ranking commanders came about because of the absolute inefficiency of these missions, and the “war” as a whole.

Large issues remain undecided out there today because SCOTUS won’t hear or re-hear cases. District courts often seem afraid to blaze new ground. Making big decisions needs to be less scary for lower courts.

Case in Point

To illustrate this problem, one need to look no further than SORNA laws. The Sex Offender Registration and Notification Act1 (part of the Adam Walsh Act of 20062 mandated States to comply with federal minimum guidelines for implementing Sex Offender Registries. Sounds like a good idea.

Problems arise, however, when the language of the Act makes the laws they spur unconstitutional. SCOTUS ruled in Smith v. Doe, 538 U.S. 84, that SORNA laws were civil regulatory schemes and not punitive in nature. Thus, SORNA laws are not unconstitutional violations of the ex post facto clause in the U.S. Constitution.3

Justice Souter, in a concurring opinion, commented that his tip toward constitutionality (ie. the laws were regulatory and not punitive in nature) of the statute from Alaska was premised on the presumption of constitutionality afforded to the State.

However, Alaska answered by finding that same law unconstitutional in its own Supreme Court.4 This would, inherently, shift SCOTUS’s opinion (at least the opinion of Justice Souter) the other direction.

Unfortunately, Smith v. Doe has opened the door for 8 years of State laws that continue to get harsher and more punitive in nature because of the carte blanche perceived from this decision. Whats worse, SCOTUS has yet to grant Cert for any new case that questions the constitutionality of newer, harsher laws made for SORNA-compliance.

Empower Federal Judges in the Districts

If federal judges at the district level felt less constrained to make rulings on constitutional issues, matters like the example above would have resolutions more swiftly. The unintended effect of empowering District judges would be an increase of conflicting opinions that need to be heard by the Circuits. However, that seems to be the purpose of the Circuits in the first place.

Whats best for the American people may not be what is easiest to process by the courts. Empowering District judges to make tough decisions without fear of Circuit reprisal might create a large case load for the Circuits, but would greatly change the dynamic and speed at which facially unconstitutional laws are able to be tossed out.

********************************

  1. Sex Offender Registration and Notification Act []
  2. The Adam Walsh Child Protection and Safety Act of 2006 (“Adam Walsh Act” or “Act”) []
  3. Held: Because the Alaska Sex Offender Registration Act is nonpunitive, its retroactive application does not violate the Ex Post Facto Clause. []
  4. Alaska Supreme Court Declares Sex Offender Registration Law Unconstitutional []

Decisions Involving Tapia v United States

Rehabilitative Sentences are Illegal

If you have a loved one who was sentenced to a longer than normal term of imprisonment specifically so he or she could participate in rehabilitative programs within the Bureau of Prisons, that sentence is unlawful and we can help get it reversed! Please read on for important information.

Contact Us for a Free Consultation

PCR Consultants is a different kind of consulting agency. PCR stands for Post Conviction Relief and we focus on changing outcomes when contending with the Department of Justice and Bureau of Prisons.

Find out how we can help by calling us for a free consultation at (480) 382-9287.

For more ways to contact us, visit our contact us page for contact form and e-mail addresses and learn about us and how our services work on our about page.

Tapia and its Fallout

As reported in this earlier article on Supreme Court decisions this session, Tapia v United States was an important sentencing decision that can and will impact sentencing in U.S. District courts from now on. The collateral effects of the decision are now beginning to be felt, and here we’ll see two opposing decisions from two separate circuits involving the Tapia ruling in supervised release revocation decisions.

In Tapia, the Ninth Circuit decision was reversed in a 9-0 decision by the United States Supreme Court. The high court’s opinion was authored by Justice Elana Kagan on June 16, 2011. Justice Sotomayor filed a concurring opinion, which was joined by Justice Alito. This ruling held that:

18 U.S.C. § 3582(a) does not permit a sentencing court to impose or lengthen a prison term to foster a defendant’s rehabilitation.

This says that sentences passed down by judges that were lengthened specifically to enable the defendant to participate in rehabilitating programs within the Bureau of Prisons are considered unlawful. The ruling here is not challenged now by lower courts in original sentencing hearings. It is, however, being picked apart within hearings which deal with revocations of supervised release.

The First Circuit, in US v. Molignaro, No. 10-1320 (1st Cir. July 6, 2011), applied SCOTUS’s ruling in Tapia to reverse a lengthened term of imprisonment intended to facilitate a defendant’s rehabilitation upon revocation of his supervised release:

Acting under 18 U.S.C. § 3583(e), the district court revoked the order for supervised release and resentenced the defendant. Federal advisory sentencing guidelines recommended imprisonment of 3 to 9 months after such a violation, but the district court ordered 22 months (followed by further supervised release). The court imposed the longer prison sentence so that Molignaro would have ample time to take part in a course of sex therapy at a nearby federal prison (Devens) that could run for up to 18 months, and although the judge did not state the period he would have imposed in the absence of the treatment program, he did say that 9 months would have been too short in light of what he found to be Molignaro’s choices to go where children were present and the risk of untoward behavior was great. Molignaro objected that setting the imprisonment term with the goal of providing therapy was error as a matter of law, and that in any case 22 months was unreasonably long. We hold that the resentencing court’s objective of tailoring the length of imprisonment to provide adequate time for treatment was barred by statute, and we vacate the sentence and remand for resentencing.

The Fifth Circuit ruled the opposite way in US v. Breland, No. 10-60610 (5th Cir. July 19, 2011):

The question presented in this appeal is whether a district court may consider a defendant’s rehabilitative needs when revoking the defendant’s supervised release and requiring him to serve the remainder of his sentence in prison. The district court sentenced the defendant, William C. Breland Jr., to thirty-five months of imprisonment upon revocation of his supervised release. On appeal, Breland challenges the procedural reasonableness of that sentence, arguing that the district court imposed it for the sole purpose of qualifying him for the Bureau of Prison’s (“BOP”) 500-hour drug-treatment program. He also challenges the substantive reasonableness of the sentence. Because the plain language and operation of 18 U.S.C. § 3583(e) and (g), which governs post revocation sentencing, permits the consideration of rehabilitative needs, and because Breland’s sentence is not otherwise unreasonable, we affirm.

What this all means

To the lower courts, the application of Tapia to sentences handed down during supervised release revocation hearings is open to interpretation. Circuits are split and there is no way to tell which Circuit will go in which direction. This conflict in Circuit decisions will invariably be brought to the Supreme Court for further interpretation. Whether Certiorari will be granted is only up to the high court itself. Before this happens, however, different Circuit courts will continue to treat this issue within their own decisions.

If you want to find out if these rulings can help you or a loved one, please contact us to find out.

Important Recent Supreme Court Decisions

The U.S. Supreme Court has made some very important decisions during this year’s session. Some of these decisions directly affect the life and possibilities of relief for those facing or serving time in federal prison. Here are three of the biggest ones.

Tapia v. United States

[Decision]

Federal law does not allow rehabilitation to be used as a factor when handing down a sentence1. Now the Supreme Court has put case law behind this. Ms.Tapia was given a lengthened sentence of incarceration for the purpose of providing sufficient sentence-length to participate in the Bureau of Prison’s Residential Drug Abuse Program (RDAP). Successful completion of this program could shorten her sentence by up to on year if completed successfully. However, this reduction is not guaranteed.

Why is this important? Two reasons: First, the U.S. Supreme Court is on-record acknowledging that prison has no rehabilitative properties. Second, a judge cannot extend a sentence that would have normally been handed down in the interest of rehabilitation. If you were sentenced in this way, you can now appeal citing Tapia v. United States and have the excessive length removed from your sentence. Let us help you do that!

Brown v. Plata

[Decision]

The United States incarcerates its citizens at seven to ten times the rate of European countries2. In real-world terms, one out of every 736 people in the United States is currently behind bars.

We deem it necessary to incarcerate more of our people—in rate as well as absolute numbers—than the world’s most draconian authoritarian regimes. Think about that. Despite our “land of the free” motto, we have more prisoners than China, and they have a billion more people than we do3.

In California, overcrowding has become so sever that — as of this court decision — being incarcerated there is a violation of the Cruel and Unusual Punishment clause of the 8th amendment to the U.S. Constitution! The decision in Brown v. Plata was to order California to decrease its prison population. While this decision seems obvious to many citizens who recognize how broken the prison system is, the Supreme Court wasn’t so convinced. What should have been a slam-dunk, unanimous decision ended up being a 5-4 split in favor of Plata. Some justices believe that releasing any individual before their sentence is completed puts the public at undue risk.

Respectfully, I believe that his notion is simply the result of fear-mongering by the uninformed. Releasing people from their sentences ahead of schedule will not cause the sky to fall.

Bond v. United States

[Decision]

Until this decision, many defendants were prevented from making legitimate claims against the court because certain parts of the Constitution were not considered to be appropriate for these individuals to use.

In Bond, the defendant inflicted a minor burn on her husband’s mistress by putting caustic substances on objects the woman was likely to touch. She was charged in federal court for violating the Chemical Weapons Treaty4. This charge is reserved for terrorists using chemical weapons and dirty bombs — not putting skin irritants on a mistress’ keyboard and mouse. Bond challenged this, citing that her charge violated the 10th amendment to the U.S. Constitution which prevents the federal government from interfering with powers reserved for States.

More can be said about this decision, but in basic terms: if the federal government can bring down charges based on major treaties and Congressional acts simply to railroad a defendant, then a defendant can bring down the full force of the Constitution to combat such insanity. The 10th amendment was formerly reserved for State’s use only in federal court (e.g., the 26-state class action lawsuit against the current “ObamaCare” bill). Now, under Bond, an individual defendant may use the 10th amendment as a defense in federal court.

Round-up

While only the Tapia ruling has immediate implications on federal defendants and federal inmates, all three decisions are important in the inevitable reform of the American system of mass incarceration. How this reform will occur is anybody’s guess. However, when the federal and state government refuse to actively remedy the cruel and unusual conditions under which they incarcerate the citizens of this country, the courts can and do assert their power to provide relief and take the lead in the needed reform of laws, jurisprudence, and perceptions of the prison system.

  1. 18 U.S.C. 3582 []
  2. From the International Centre for Prison Studies []
  3. In Defense of Flogging by Peter Moskos []
  4. 18 U.S.C. §229(a), F(1), (7), (8) []

How Far is Too Far? Trading Freedoms for the Children

What are We, as Americans, Putting up With?

“‘The state must declare the child to be the most precious treasure of the people.’ .. as long as the government is perceived as working for the benefit of children, the people will happily endure almost any curtailment of liberty and almost any deprivation. It is truly heartwarming to see how well this lesson has been learned by the American government. In the name of children, incursions into the private lives of American citizens have been made that we Nazis would have gazed at with open-mouthed admiration.”
— Mein Kampf, Adolph Hitler, Page 403

For the Children

One of the easiest vehicles a politician can use to push an unpopular bill through congress is using the excuse of “protecting the children”. As one can see in the quote above, this is not a new concept. Trading freedoms for security is a very popular theme in today’s culture in America. Look at the Traffic Safety Administration: the TSA can overtly grope a traveler’s groin or label them a terrorist if they refuse or complain about the molestation.

In the name of protecting children, the civil rights of entire portions of the United States population are infringed, trampled, or stripped away entirely. I am referring to, of course, Sex Offenders. Ah, the dreaded Sex Offender…

To be objective, there are admittedly monsters out there who are predators and prey on children. They kidnap and kill them after committing unspeakable sexual assaults on the victim. The news is chalk full of the most twisted, sensationalized stories in the U.S. regarding these unconscionable monsters. There is no excuse for these actions and predators like this are absolutely un-defensible. However, these are the exception, not the rule.

Sex Offender Registries became prevalent in State laws in the 1990’s, and focused on keeping tabs on violent, predatory, and repeat offenders. Back then there were 11 crimes that were worthy of such administrative monitoring (rape, aggravated sexual assault on a minor, kidnapping a minor, etc.).

There are now, on average, 1891.

Many laws being passed make lives more difficult for sex offenders. The presumption is that these laws are aimed protecting the community and directed at the predators who are guilty of the 11 heinous crimes referenced above. That presumption is usually false. Many laws that place higher restrictions on sexual offenders, do so across the board to anybody registered as a sex offender. Take Nebraska’s law, LB-2852, for example. Among other things, this law changed the State’s web site to include anybody and everybody on its sex offender registry. Good idea, or bad idea?

Does a man who had a baby with his girlfriend when she was 1 month away from the age of consent, really need to be on the same website as a pedophile-kidnapper? Before you balk at this for being irrational, ask yourself this: if you’ve ever looked up a sex offender locating website, can you tell who are the predators and who aren’t? Do you immediately lump everybody on that website into the same group of gutter-scum?

Can you tell the difference between crime codes? The man above is real, and his crime is Attempted 1st Degree Sexual Assault. Would you know what that means? He is now in his thirties and has been on the registry since the 1990’s. Most would assume now, because of his current age, that his crime was that of a pedophile.

Lets look at this from another angle. A real teenage boy in Georgia receives a ‘Sext’ from a girl he went to high school with. Catastrophe strikes and he is put on probation for possessing child pornography. That is 25 years on Georgia’s sex offender registry. When this kid is 40, he will still be on the registry with a child pornography conviction. Would you assume he was a teenager when he was charged, or would you immediately be afraid of him?

With over 728,0003 people now registered as sex offenders in the United States, the state of fear is gripping the average American citizen. In States like Nebraska there are three levels of sexual offenders4.

  • The first level is misdemeanor crimes like public indecency (flashing at Mardi Gras, pissing in the alley behind the bar), child pornography cases like the kid described above, and non-contact crimes.
  • The second is for non-aggravated contact crimes, and more severe crimes with no contact.
  • The third is a lifetime registration for aggravated contact/assault crimes, repeat offenders, and violent predators.

The law cited above, LB-285, puts all of these classes together online on Nebraska’s Sex Offender web site. Many ordinary people without a law degree would tend to believe that anybody bad enough to be on that website is dangerous and should be avoided. It’s a common misconception.

Back to the issue at hand: unconstitutional laws that are tolerated by the People under the guise of protecting our children.

Constitutional issues:

Ex Post Facto violations – Legally this means punishment after the fact. Somebody is charged, convicted, sentenced, and later punished again beyond their sentence. Sometimes called double-jeopardy, this is unconstitutional. People that were never on the sex offender registry because their crime was not a registrable offense at the time of conviction get put on a registry after the fact because of laws like LB-285. The Supreme Court considers sex offender registries legal because it does not believe being placed on a registry is a punishment (only civil administrative action). Would you feel punished if you were subject to these laws? (Some registrable crimes are not even sexual in nature like kidnapping or using a misleading domain name on the internet.)

Fourth Amendment5 violations – This means a search and seizure of property without proper cause. Many laws make provisions for State Police agencies to enter the home of a sex offender at any time and conduct a search. Fortunately, at this time, these portions of law have been held unconstitutional, but that doesn’t keep states from trying.

Eighth6 and Fourteenth7 Amendment violations – These are Due Process of Law and Excessive, Cruel, and Unusual punishment. In Colonial times, an individual convicted of an unpopular crime would be forced to wear a sign around their neck and stand in the town square to be publicly mocked. Others were branded like cattle with a letter like ‘M’ for murder, ‘T’ for Thief, or ‘A’ for Hester Prynne8, to shame these individuals and drive them away from communities. The US Supreme Court doesn’t make the connection between these laws (which it considers as violating the Eighth Amendment) and sex offender registries.

Real Danger to Children

Fear makes many citizens want to lock up sexual offenders and throw away the key. However, lets look at the dangers:

According to a 1994 study by the Bureau of Justice Statistics9, slightly over 5% of all sex offenders re-offend sexually, over 90% of sexually offenses happen from first-time offenders, and the recidivism rate of sexual offenders (returning to prison for any reason) was 25% lower than the average rates of any other crime (43% v. 68%). The recidivism rate of sexual offenders is the lowest of any offense type except for murder/homicide.

The natural proclivity of some sex offenders (i.e. predators, untreated addicts, etc.), however, shows that a convicted sex offender is four times more likely to commit a sex crime in the future than somebody convicted of another type of crime. This may scare some people, but think to yourself: how much more likely is a bank robber to commit another bank robbery than an average citizen who has never robbed a bank? Statistics show they are much higher than four times more likely than the average non-bank-robber citizen of America to repeat that crime.

The study above showed that 90% of all sexual offenses occurred by a non-registered, first-time sexual offender. A child, or anybody for that matter, is more likely to be sexually assaulted by somebody who is not on the registry at all (first-time offenders are obviously not on the registry). Logically, then, this means that the registered sex offender in your neighborhood is statistically SAFER than your non-registered neighbors.

The Nation, and its States, spend a huge amount of time and money on sexual offender registries to protect our children. But how are we protecting our children?

  • Jaycee Dugard was kidnapped by a level 3 sex offender, under the harshest conditions of sex registry, but nothing in the registry protected her from Phillip Gurrido.
  • Dru Sjodin was kidnapped and murdered by a registered sex offender, but nothing in the registry requirement could have prevented her murder.
  • Michael Devlin kidnapped two boys, one of them for 5 years. He had no criminal record and will never have to register as a sex offender (he received 3 life sentences).
  • Adam Walsh was abducted from a Sears department store at the Hollywood Mall in Hollywood, Florida, on July 27, 1981, and later found murdered and decapitated. Adam’s Father, John, was the force behind the Adam Walsh Act10.

In all of these cases, the kidnapper traveled well out of his way to abduct his victim. Nothing in any State’s sex offender registry could have prevented these crimes. These men were sick, pathological, focused on finding a victim, and the rarest of sexual offenders. Yet, how could registries have prevented these crimes? Answer: the crimes could not have been prevented by sexual offender registries.

In this new decade, sex registries are required to be compliant with the federal Adam Walsh Act, which lists every level of sex offender are actually counter-productive to their stated cause. By listing all levels of offenders online, the violent and predatory offenders can hide within the masses of the online databases.

“The registry is not being used as it was intended, so let’s get rid of it and focus on the 10,000 violent offenders and track them.”
-John Walsh

What kills children?

The following is from the CDC and the American Journal of Psychiatry on the top causes of deaths to minors in 200211:

  • A child is 1,400% more likely to hang themselves than to be kidnapped and killed by a Sex Offender
  • A child is 1,500% more likely to shoot themselves than to be kidnapped and killed by a Sex Offender
  • A child is 3,200% more likely to murdered by a firearm from somebody besides a Sex Offender
  • A child is 4,000% more likely to shot, stabbed, burned alive or poisoned than kidnapped and killed by a Sex Offender
  • A child is 15,300% more likely to killed in a car accident than to be kidnapped and killed by a Sex Offender

So really, how bad is it to be a Sex Offender?

Besides being virtually unemployable, and subject to vigilantism and harassment, all Sex Offenders:

  • Cannot use FEMA storm shelters
  • Cannot travel without prior approval
  • Cannot stay in hospital overnight without approval

and can be:

  • Barred from living with their family/children
  • Barred from gyms
  • Barred from children’s events
  • Barred from tourist destinations
  • Barred from public parks
  • Barred from student loans and continuing education
  • Barred from any type of scholarship
  • Barred from FHA loans
  • Barred from Small Business Loans
  • Barred from Tax Credits
  • Barred from Section 8, public housing, homeless shelters.

Would you choose this life for violent, predatory sexual assailants? I would. What about low-risk men and women who made stupid choices and never touched a child or another human being in a sexual way?

How far will things go before the American public takes a stand against trampling the Constitutional rights of a group of people in the name of a greater cause? This is a very slippery slope of government subtly trading freedoms away under the guise of protecting children.

Three examples:
Sexual Offender Laws (America) – cause: child safety
TSA molestation and profiling (America) cause: public safety from terrorists

. . .and eventually. . .

Genocide (Nazi Germany, ca. 1930’s) – cause: racial purity

This might seem like a huge jump, but consider the quote, and I’ll end with that:

“First they came for the Socialists,
and I did not speak out because I was not a socialist.
Then they came for the trade unionists,
and I did not speak out because I was not a trade unionist.
Then they came for the Jews,
and I did not speak out because I was not a Jew.
Then they came for me,
and there was no one left to speak for me.”
– Pastor Martin Niemöller
Interned from 1941-1945 at the Nazi Concentration Camp in Dachau

You’re welcome to reprint these articles on your website and in your e-newsletters free of charge, provided that you don’t change the article in any way and you include the byline (including a link to our website) In doing so you agree to indemnify PCR Consultants and its directors, officers, employees, and agents from and against all losses, claims, damages and liabilities that arise out of their use. Unless otherwise noted, all content copyright © 2010-2015 PCR Consultants

  1. Taken from the aggregate of all federal penal codes identified under SORNA []
  2. Full text of LB-285 []
  3. Source is an NCMEC study on the geographical locations of sex offenders. []
  4. Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking []
  5. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. []
  6. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. []
  7. Full text of the Fourteenth Amendment to the United States Constitution []
  8. Main character in Nathaniel Hawthorne’s classic novel The Scarlet Letter []
  9. Recidivism of Sex Offenders Released from Prison in 1994 []
  10. The Adam Walsh Child Protection and Safety Act of 2006 []
  11. CDC study for all deaths in 2002 []

Help Yourself at Sentencing

Whatever You’ve Done Can and Will be Used to Help at Sentencing

Sentencing is a difficult time for everybody surrounding a criminal trial. Victims and their families are never happy with a merciful prison term, while convicts always want less time than what they received. This gap will never close.

For those sitting with their lawyer at the defense table, anything that can be used to lessen a possible prison term is used on Sentencing Day. On March 2, 2011 the Supreme Court of the United States reversed a decision by the Eighth Circuit court and enabled more information to be used at sentencing in favor of the defendant.

In Pepper v. United States (No. 09-6822), the Supreme Court said that district courts may consider post-sentencing rehabilitation at a resentencing hearing. Upon hearing this case, the Supreme Court reversed the circuit decision claiming that post-sentencing rehabilitation was not allowed to be considered at a resentencing hearing. In simple terms: although some rehabilitation happened after the original sentencing date, it did not keep those actions from being used on a defendant’s behalf.

There is a more in-depth analysis of the Pepper case and its ramifications, check out the analysis portion at the bottom of this post.

What this Means to You

Everything a defendant does before and after being charged with a crime is looked at by the presiding court. Use this information to your advantage! Voluntarily entering treatment while on pretrial status (if bond is granted) can take years off of a potential sentence. Screwing up while on pretrial can add those same years onto a sentence, so stay diligent!

Analysis

 

After pleading guilty and receiving a sentence containing a very significant downward departure, the United States Attorney appealed, the sentence vacated, and was remanded back to the district court for resentencing. The sentence was again pronounced, appealed by the US Attorney, vacated, and remanded for resentencing. The Eighth Circuit court vacated the sentence of Mr. Pepper on three separate occasions because — despite sentencing guidelines being only advisory — determined that the sentence was reduced too much.

The fourth trip though the courts (referred to by the Supreme Court Slip Opinion as Pepper IV), the district court imposed a 65-month sentence. That sentence was affirmed on Pepper’s appeal by the Circuit Court, and then granted Certiorari

Common sense would dictate that, after the Booker and Gall decisions by the Supreme Court, a district judge’s discretion would exist above appeal so long as that decision was constitutional. However, the Eighth Circuit disagreed with the sentencing below, and held that using post-sentencing rehabilitation as grounds for downward departure at a resentencing was not proper.

This type of disregard for a judge using his own “Judgment” is the reason Gall was granted Certiorari after Booker in the first place. The Supreme Court felt it needed to, once again, make a judge’s judgment legal.

To drive this point home, the high court held the following:

“[C]onsistent with the principle that “the punishment should fit the offender and not merely the crime,” Williams v. New York, 337 U. S. 241, 247, this Court has observed a consistent and uniform policy “under which a sentencing judge could exercise a wide discretion in the sources and types of evidence used to assist him in determining the kind and extent of punishment to be imposed within limits fixed by law,” id., at 246, particularly “the fullest information possible concerning the defendant’s life and characteristics,” id., at 247. That principle is codified at 18 U. S. C. §3661, which provides that“[n]o limitation shall be placed on the information” a sentencing court may consider “concerning the [defendant’s] background, character, and conduct,” and at §3553(a), which specifies that sentencing courts must consider, among other things, a defendant’s “history and characteristics,” §3553(a)(1). . .”

So, if the law says that no limitation shall be placed on the information a sentencing court may use at sentencing, why did the Eighth Circuit ignore 18 U.S.C. §3661 on three separate occasions? It seems as though it simply did not like the lack of a stiff sentence for Pepper, regardless if that sentence was given under sound legal judgment. The Supreme Court disagreed, vacated in part, affirmed in part, and remanded.