The 2019 U.S. Supreme Court

What Acquitted Conduct Says about Justice Kavanaugh and Federal Defendants and Supervised Release

The Supreme Court has changed drastically over the last two years. With the inclusion of both Justice Gorsuch and Justice Kavanaugh to the highest court in the Country, there are plenty of questions on what way things will go for federal defendants at the Supreme Court in the next few decades.

There is no easy answer to this, as many Supreme Court Justices look one way during confirmation, and then act differently after they sit on the bench. This is most markedly observed when strict constructionalism meets federalism in a real way. That, however, is a longer discussion for a different post.

This post focuses on how the two newest justices might shape the way criminal matters are decided in the near to far future.

The ACCA

In recent cases, there have been significant decisions by the Supreme Court when it comes to the Armed Career Criminal Act (ACCA). In April of 2018, the case of Session v. Dimaya sided heavily with defendants. This case said that the residual clause of the definition of a crime of violence (per 18 U.S.C. §924(e)) was unconstitutionally vague.

In the simplest of terms, this case threw out a vague definition of what could be considered a crime of violence. It found that just because the act of committing a crime had the potential for violence, didn’t mean it could be considered a violent crime. That asks judges to use too much fortune-telling to be comfortably constitutional.

Whether or not Kavanaugh would have voted with the majority here is a matter of pure speculation, but the case was decided in a 5-4 split that could have swung either way. Kennedy voted against this majority, so even if Kavanaugh would have held the same opinion, this case would have still landed on the side of defendant Dimaya.

But there is wrinkle here. Kavanaugh, although having few opinions to draw on from his time on the D.C. Circuit, is a strong opponent to acquitted conduct. This is the principle of using conduct that the defendant was not convicted of, in order to lengthen their sentence.

Hypothetical Scenario: Consider a kid who was arrested for public intoxication and terroristic threats at age 19. He was actually drinking an energy drink and defending another kid from a bully, but mistakes happen and this hypothetical situation is resolved when a quick bench trial acquits him of both charges.

8 years down the line this same kid is charged as a part of a drug conspiracy when his local weed dealer is taken down by the DEA. He’s guilty of selling some extra weed this dealer had to get rid of 6 months prior, but gets charged (as all conspiracies go) with the entire amount of weed dealt by co-conspirators during that entire 6 month period. At his sentencing, that arrest shows up on the presentence report as criminal history with no points. However, the “Acquitted Conduct” section of the Sentencing Guidelines Manual adds a year to the sentence for something he was never convicted of.

Justice Kavanaugh has stated, on multiple occasions, that he believes the use of acquitted conduct to increase the length of a criminal sentence is both worrisome and a violation of due process protections. He even stated this in front of the Sentencing Commission in 2009.

Few conclusions can be made from this small example, however it is clear from his statements to the Sentencing Commission that Kavanaugh is committed to giving defendant’s a fair shake, and is a firm believer that the constitution guarantees this fairness.

Supervised Release

The future will tell what the new Supreme Court will do with issues of supervised release, but the wait won’t be long. In November of 2018, the Court agreed to review the case of Jason Mont.

Mont, who committed drug crimes while on supervised release for an early drug conspiracy, was indicted by the State of Ohio on these new drug charges, and the federal district court was informed of his violation of federal supervised release conditions.

Mont was held in county jail for 10 months during while awaiting trial for the Ohio charges. During that 10 months, his term of supervised release ended. After he was convicted and sentenced to 6 years in state prison, he was then given a revocation of supervised release in federal court and a 42 month sentence there as well.

Mont appealed to the 6th Circuit. 18 U.S.C. §3583(i) says that:

The power of the court to revoke a term of supervised release for violation of a condition of supervised release, and to order the defendant to serve a term of imprisonment and, subject to the limitations in subsection (h), a further term of supervised release, extends beyond the expiration of the term of supervised release for any period reasonably necessary for the adjudication of matters arising before its expiration if, before its expiration, a warrant or summons has been issued on the basis of an allegation of such a violation.

However, does this apply to pretrial holding? Mont’s lawyers argued that it doesn’t. However, the 6th Circuit disagreed and affirmed the district court’s decision.

Mont then appealed to the Supreme Court, who granted review of this case on November 2, 2018.

This will be a good case to take the temperature of the Supreme Court, in its newest form, regarding issues of federal supervised release.

Check back often for updates on these issues and many others.

The Difficulty on Bringing State Cases into Federal Habeas Proceedings

Federal Habeas Filings Under §2254

Filing a habeas petition is difficult and very time consuming. Filing an effective habeas petition is even harder. This is in reference to federal inmates filing for 28 U.S.C. §2255 habeas relief in federal court. A majority of these filings fail even before they get a hearing, never getting their day in court.

However, there is an avenue in this area of appeals that allows state inmates with state-level convictions to appeal their convictions on federal-constitutional grounds in federal court. This process and the law behind it comes from the section prior to the one that gives federal inmates this option.

This is Title 28 U.S.C. §2254.

Our most recent client who wanted to file for this type of appeal was the father of a young man in the Midwest United States who was wrongfully convicted of homicide. A case of mistaken identity that resulted in a sentence of life without the possibility of parole. This young man’s life is effectively over, all because an overzealous detective didn’t want to change his “hunch” from day 2 of investigating a murder.

This detective had pinned the crime on this young man, and nothing would dissuade him otherwise. Not a lack of evidence, or even witnesses that heard the confession of the real killer first hand. Add on top of that a drug-addicted witness who was paid a crime-stoppers-type reward before  the trial, who changed his tune from unsure, to a concretely positive identification, and the perfect storm was set for a wrongful conviction.

However, this post is not about this young man or the injustices that resulted in a jury convicting him of murder.

This post is about the process of even getting his case heard before a federal judge. It is immensely difficult, to say the least.

The American Constitution Society

Just this month, in July of 2018, the American Constitution Society (ACS) published a brief entitled “Litigating Fedreal Habeas Corpus Cases: One Equitable Gateway at a Time“. and it gets started this way:

The Supreme Court has described the writ of habeas corpus as “a bulwark against convictions that violate fundamental fairness”1 and as “the judicial method of lifting undue restraints upon personal liberty.”2 Unfortunately, obtaining federal habeas corpus relief has become close to impossible for many prisoners. The vast majority of habeas petitions are post-conviction petitions filed by state prisoners. Congress and the Supreme Court have erected a complicated maze of procedural obstacles that state prisoners must navigate, often without the assistance of counsel, to have their constitutional claims considered in federal court. One wrong procedural step means the prisoner’s claims are thrown out of federal court altogether. In fact, federal judges now dismiss a majority of state prisoners’ habeas claims on procedural grounds.3

The rare state prisoner who successfully manages to run this procedural gauntlet faces a merits review process that has become so deferential to the state that relief remains virtually unattainable. In the extremely rare case where a federal court grants relief, the judgment often comes years after a person has been wrongly imprisoned. At that point, the case has often been forgotten and the state actors responsible for the underlying constitutional violation have often changed jobs. As a result, the federal decision effectively has no deterrent value.

One empirical study revealed that only 0.29% of non-capital state prisoners obtain any form of federal habeas relief.4 That number is troubling in light of evidence that states systematically violate criminal defendants’ constitutional rights5 and data documenting large numbers of wrongful state convictions.6 Many state criminal defendants have no semblance of a fair process to determine their guilt or innocence. They are processed through a system populated by underfunded and overworked criminal defense attorneys who are often structurally ineffective,7 prosecutors whose incentives often are to obtain convictions and appear tough on crime rather than pursue just results,8 and overwhelmed trial court judges who are focused on docket management and often indifferent to the systemic mistreatment of poor people of color. To avoid reckoning with these failures, states often rely on (and even distort) state procedural rules to reject defendants’ constitutional claims.9

The entire brief runs 21 pages long and is well worth the read. Suffice it to say, though, these are very hard to do and do well.

As far as the young man who was convicted of murder? His case is still pending briefs ordered by the government and a report from an impartial magistrate judge before the presiding federal10 judge makes a determination of whether this case is heard, granted, and this young man gets freed from prison.

Judging from past inmates who have tried, however, it is likely that this case will go to an appeal before it gets taken seriously. Maybe even the U.S. Supreme Court.

We will, of course, post any updates in the future.

  1. Engle v. Isaac, 456 U.S. 107, 126 (1982) []
  2. Price v. Johnston, 334 U.S. 266, 269 (1948) []
  3. See NANCY J. KING ET AL., FINAL TECHNICAL REPORT: HABEAS LITIGATION IN U.S. DISTRICT COURTS 6 (2007), http://www.ncjrs.gov/pdffiles1/nij/grants/219559.pdf [hereinafter KING REPORT]. []
  4. See KING REPORT, supra note 3, at 9. []
  5. See, e.g., Eve Brensike Primus, A Structural Vision of Habeas Corpus, 98 CALIF. L. REV. 1, 16-23 (2010) (documenting systemic violations of defendants’ rights in the states); see also Lynn Adelman, Who Killed Habeas Corpus?, DISSENT MAGAZINE (Winter 2018), https://www.dissentmagazine.org/article/who-killed-habeas-corpus-bill-clinton-aedpa-states-rights (“As a federal judge, I have observed a considerable number of cases where state courts overlooked clear constitutional violations….”). []
  6. See Brandon L. Garrett, Actual Innocence and Wrongful Convictions in ACADEMY FOR JUSTICE, A REPORT ON SCHOLARSHIP AND CRIMINAL JUSTICE REFORM (Erik Luna ed., 2017). []
  7. See, e.g., Eve Brensike Primus, Defense Counsel and Public Defense in ACADEMY FOR JUSTICE, A REPORT ON SCHOLARSHIP AND CRIMINAL JUSTICE REFORM (Erik Luna ed., 2017). []
  8. See, e.g., John F. Pfaff, Prosecutorial Guidelines in ACADEMY FOR JUSTICE, A REPORT ON SCHOLARSHIP AND CRIMINAL JUSTICE REFORM (Erik Luna ed., 2017). []
  9. See, e.g., Lee v. Kemna, 534 U.S. 362 (2002) (examining Missouri’s distortion of two state procedural rules to prevent a defendant from presenting witnesses to support his alibi defense); see also Eve Brensike Primus, Federal Review of State Criminal Convictions: A Structural Approach to Adequacy Doctrine, 116 MICH. L. REV. 75 (2017) (documenting how states use procedural rules to avoid constitutional challenges). []
  10. Article III []

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.

Contact Us To Find out How PCR Consultants Can Help

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

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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.

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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.” []