Dimaya Sentence Reductions via §2255

The Sentence Reduction Potential of Dimaya and Johnson

On April 17, 2018, the Supreme Court of the United States published an opinion in an immigration case called Sessions v. Dimaya. This case caused waves because the left-leaning justices split with right-leaning justices evenly at 4-4 and the deciding vote was the freshman justice Gorsuch.

In what has conservatives raging against their new justice, is really not much of an immigration issue. Well it is, because it brings some civil immigration cases into the constitutional realm of criminal cases. In this case, the question was whether or not a statute which anticipated possible/potentially violent conduct was too vague to withstand constitutional scrutiny.

No attempt is made here to take political sides or to create a partisan bias. The reason why you’re probably here reading this is to find out if Dimaya can be helpful to an inmate in federal prison. The short answer is, “Maybe.”

What did the Dimaya Case Accomplish?

You can skip this section entirely if you’re not interested in the legal analysis of this case, although it does help explain how and who this case helps.

This opinion, with dissents, is nearly 100 pages long, so there is a lot to unpack. However, the essential part that impacts federal inmates has to do with sentencing enhancements for violent crimes.

What the Dimaya case decided was that the residual clause of 18 U.S.C. §16(b) was unconstitutionally vague and violated the U.S. Constitution’s 5th Amendment, which guarantees due process.

Lets make that simpler to understand. That law above, 18 U.S.C. §16(b), is the second part of a 2-part definition of what constitutes a “Crime of Violence.” The first part says that violence has to be used, attempted, or threatened for the underlying crime to be considered a violent one.

The second part, the part we’re interested in here, says that “any other felony that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”

The problem with this phrasing is that a “substantial risk” is subjective and vague. A court could assume that violence could be a result of many different types of felonies. While holding a gun, threatening to kill somebody to facilitate a robbery is certainly a crime of violence under the first definition above.

The Supreme Court decided to rely on it’s criminal definition of what makes a law unconstitutional for being too vague. The definition of a violent crime is generally made by §16, as is addressed above. Criminally, however, the definition of a crime of violence is defined in §924(e)(2).

This, by the way, is why this case caused an uproar, because it treats deportation as a punishment severe enough to cross over into criminal punishment, rather than a civil process. And treating deportation as a criminal matter gives non-citizens constitutional due process rights.

But never mind that now.

The Supreme Court decided in Sessions v. Dimaya that the residual clause of the definition of a “crime of violence” from §16 is void for being too vague, just like the residual clause of a “crime of violence” for criminal prosecution from §924(e)(2) is void for being too vague, which they had decided in 2015 with Johnson vs. United States, 576 U.S. ___, ___.

How Dimaya Could Reduce Federal Sentences

Very basically, Dimaya reinforced Johnson’s decision that the residual clauses of the definition of a “crime of violence” in both 18 U.S.C. §16(b) and §924(e) were unconstitutional because they were too vague.

What this means in terms of reducing sentences for federal inmates falls out of this. If a federal inmate had his sentence increased because their crime was a “violent” one, even if there was no violence, then the basis for that sentence increase is now considered unconstitutional.

In order to get this sentence increase eliminated, effectively getting a sentence reduction, involves filing a Motion to Vacate, Set Aside, or Correct Sentence. Sometimes called a 2255,1 this allows a judge to correct a sentence for constitutional reasons (like the Dimaya decision here). However, there is a time limit.

The law that regulates the use of a 2255 motion sets a 1-year time limit on filing one. Four things can start this 1-year clock, but the relevant part here is that the Dimaya decision starts the clock for any inmate that can take advantage of it.

That means that any inmate who is affected by the Dimaya decision, meaning their sentence could potentially be decreased by using it, has until April 16, 2019 in order to file a motion to “Correct a Sentence” before they are no longer eligible to do so.

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  1. because the statute allowing this is found in 28 U.S.C. §2255 []

Prosecutorial Misconduct

Today we have a couple of stories from around the country that will interest those searching for some sanity in American criminal justice.

To start, we have a story from the Federal Criminal Appeals Blog. It turns out that the government believes riding in a car with drugs, even if a defendant had no idea drugs were present, is still a crime worth many years in federal prison. The story goes like this: a construction worker (Mr. Tavera) was riding to Tennessee to do a roofing job.

Prosecutor Hides Evidence of Innocence

Tavera’s driver had lots of construction equipment in the back of the truck, including a bucket of nails and a large quantity of methamphetamine below those nails.

The US Attorney for the case was told by the truck driver that Tavera had no idea the Meth was there, but forgot to mention that at Tavera’s trial which ended up netting him over 15 years in prison.

From the story:

AUSA Taylor never told Mr. Tavera’s lawyer that Mr. Mendoza said Mr. Tavera isn’t guilty.

And, as a result, the jury never heard that the only other guy in the car told the prosecutor that Mr. Tavera didn’t know about the drugs.

As the Sixth Circuit said, “Mendoza’s statements to Taylor were plainly exculpatory.”

The Supreme Court has said that the government has to hand over all information that is exculpatory and that if it fails to do that, the prosecution is fundamentally unfair.

Yet, despite that the law is crystal clear on this, the Sixth Circuit notes that “nondisclosure of Brady1 material is still a perennial problem, as multiple scholarly accounts attest.”

The prosecutor, as the Sixth Circuit explained, figured it was Tavera’s fault for not doing a good enough job on defense. However, US Supreme Court history is very explicit that it is the prosecutors job to be forthcoming with any such evidence to ensure a fair trial.

With the deck already stacked so squarely in favor of the prosecution in federal cases, do they really need to act this poorly? The Sixth Circuit decided that this was so clearly unfair, that it ordered a new trial.

How long will this new trial even last with this evidence on the record for a jury to see? My guess: not long.

  1. Any evidence of innocence possessed by the prosecution, known as exculpatory evidence, is required to be turned over to the defense before trial. Brady material refers to evidence of innocence, from Brady v. Maryland, 373 U.S. 83 (1963) []

Huge Win for Inmates in Dorsey/Hill Decisions

Fair Sentencing Act of 2010

Crack Cocaine Pipeline Cases Decided by SCOTUS

Its a big day at the United States Supreme Court. Inmates have been waiting for nearly two years for the high court to decide on a Circuit Court split that meant decades in longer sentences for crack cocaine “Pipeline” cases.

Read our prior post on the Hill case and “Pipeline” cases.

The Supreme Court handed down an extremely divided decision today in a 5-4 ruling for the defendants. Below is a quick recap of the issues.

The Fair Sentencing Act of 2010: This law, passed by Congress, lowered the penalties on crack cocaine offenses to be close to those of powder cocaine sentences.

Pending Cases: Defendants whose cases which started before the Fair Sentencing Act of 2010 took effect1, but were sentenced afterwards were sometimes given the new, lower sentences. Some, however, got the older and longer sentences. These cases were in the pipeline when the law took effect.

Most Circuit Courts who decided this issue granted the lower sentences to the Appellants.2 The Seventh (surprise, surprise) and Sixth Circuit3 went the other direction and decided that the older (and “unfair”) sentences were appropriate.

What Happens Now

At this point, all inmates who were charged with crack cocaine offenses before August of 2010, but sentenced afterward need to take a close look at their sentences. If sentenced under old rules, they could be eligible for years in sentence reductions with a simple 3582 motion.

Let Us Help You!

Call us at (480) 382-9287 for a free consultation to find out how we can help you and your incarcerated loved one get 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.

  1. August of 2010 []
  2. See the Third and First Circuit cases []
  3. United States v. Carradine, ___ F.3d ___, No. 08-3220, 2010 WL 3619799, at *4-*5 (6th Cir. Sept. 20, 2010 []

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.” []