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First Step Act Promises Modest Criminal Justice Reform

by John Roberts, Esq.
Arseneault & Fassett, LLP

On December 21, 2018, the First Step Act of 2018 was passed by Congress and signed into law by President Trump, representing criminal justice reform for defendants who await sentencing and inmates who are currently serving their sentences in federal prisons.  In general, the benefits are modest but potentially wide-reaching.

Mandatory Minimums for Serious Drug/Violent Felonies

The Act reduces the mandatory minimum sentences for defendants who have committed commit two or more serious drug/violent felonies.  Previously, a defendant faced a minimum sentence of 20 years for a second qualifying conviction and mandatory Life without release for a third or subsequent conviction.  The Act reduces the mandatory minimum for a second conviction to 15 years and replaces Life with a mandatory minimum of 25 years. These provisions apply to any offender who had not been sentenced as of the date of the new law’s enactment.

Safety Valve

The “safety valve” provision, which previously afforded the potential for first-time non-violent drug offenders to avoid unduly harsh sentences, is now available to offenders with more significant criminal histories.  Where the safety valve was previously available only to defendants with no more than one criminal history point, the Act expands eligibility to defendants who do not have more than four (4) criminal history points, nor a single 3-point offense, nor a single 2-point violent offense.

 Reduced “Stacking” of Mandatory Minimums under 18 U.S.C. §924(c)

The Act clarifies the conditions that trigger a 25-year mandatory minimum for a second or subsequent drug/violent offense involving a firearm. The Act replaces prior language describing “second or subsequent conviction” with “a violation of this section that occurs after a prior conviction under this subsection has become final.”  The Act is in response to recommendations by the U.S. Sentencing Commission to reduce the unduly harsh “stacking” of penalties resulting from multiple convictions resulting from the same case.

Crack/Powder Cocaine Disparity

The Act makes retroactive the 2010 Fair Sentencing Act, which amended the Sentencing Guidelines to treat crack and powder cocaine offenses more equitably. The Act potentially provides relief to thousands of federal inmates who are still serving time for crack cocaine offenses for which they were sentenced prior to 2010. The Act is not automatic; rather, it requires a motion for the court to consider reducing the sentence. The Court is not required to grant the motion, and a motion is not permitted if a sentence was previously reduced under the 2010 Act or if a motion under the 2010 Act was denied.

 Good Time Credit

The provision which may affect the most beneficiaries — as many as one-third of all federal inmates — is the adjustment of the “good time credit” which inmates earn toward early release for time served without disciplinary infractions.  It has long been federal law that inmates are entitled to a credit of “up to” 54 days per year.  In practice, however, the Bureau of Prisons has employed its own creative math to shortchange inmates by 7 days per year.  Previous federal court decisions have allowed this practice to continue.  The First Step Act closes this loophole, mandating that the Bureau of Prisons (BOP) provide the additional week per year to inmates who have earned the credit.  This change is retroactive, meaning that it applies to all federal inmates who are eligible for the credit, extending back to the beginning of their sentences.  So eligible inmates could be released sooner than previously expected, especially those who are nearing the end of long sentences.

Recidivism Reduction Programs & Productive Programming

The Act also permits inmates to earn benefits by participating in programs designed to rehabilitate and reduce recidivism. Potential benefits include additional time for visits, increased access to telephone and email, increased commissary spending limits, and consideration of transfer to preferred housing units or even another facility closer to home.  In addition, inmates who meet eligibility requirements may accumulate “earned time credits” of 10 to 15 days for every 30 days of participation.  The credit may then be applied toward time in prerelease custody or supervised release.

Other Prison Reform

The Act directs the BOP to designate inmates to facilities within 500 driving miles of their homes, after considering a number of factors such as bed space and security concerns. While it has been common for courts to make such recommendations at sentencing at the request of individual defense counsel, the Bureau of Prisons was under no obligation to follow such recommendations prior to the Act. In theory the Act at least requires the BOP to make an effort to make it more feasible for family and friends to visit inmates. However, the Act also provides that the BOP’s designation decisions are not reviewable by courts.

The Act directs the BOP to place low-risk, low-needs inmates in home confinement for the maximum period allowed under pre-existing law, either 10 percent of the sentence or six months, whichever is shorter. Previously the statute merely provided that inmates “may” be placed in home confinement.

The Act provides additional relief to female inmates, including restricting the use of restraints on pregnant and post-partum inmates and mandating that all female inmates be provided with feminine hygiene products.

The Act also lowers the minimum age for “compassionate release” for terminally ill inmates from 65 to 60, as well as other reforms regarding “compassionate release.”

Conclusion

The First Step Act may not meet expectations of most defendants and advocates.  As the BOP puts the statute into practice, we may be even more disappointed.  However, the Act potentially provide at least modest improvements to thousands of defendants for years to come.

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Report on the Effects of Federal Sentencing Enhancements on Drug Defendants

By John Roberts, Esq.
Arseneault & Fassett, LLP

The United States Sentencing Commission has issued a report which examines the use and impact of increased penalties for drug offenders who have prior felony drug convictions. Entitled Application and Impact of 21 U.S.C. § 851: Enhanced Penalties for Federal Drug Trafficking Offenders, the Report provides statistics and findings which are vitally important to defendants facing federal drug charges.

A person convicted of a drug felony in federal court qualifies for a “851 enhancement” if he has one or more previous felony drug convictions — in either federal or state court. When applied, the 851 enhancement increases the mandatory minimum or statutory maximum penalty that the defendant faces. For example, the 5-year mandatory minimum that applies to some federal convictions can be increased to a 10-year mandatory prison sentence with an enhancement due to a single prior felony conviction. In other cases, a 20-year statutory maximum can be enhanced to 30 years for one prior drug felony, and two or more prior drug felonies can cause a defendant to face mandatory life imprisonment without release.

To trigger the enhanced penalties, federal prosecutors must take the affirmative step of filing an “851 information.” Prosecutors also have the discretion to withdraw the information prior to sentencing. The Report found that, nationwide, prosecutors filed enhancement informations in approximately 12.5 percent cases in which defendants were eligible. The informations were later withdrawn in 22.5 percent of those cases.

The Report found that there is wide geographic variation in the extent to which U.S. attorneys filed enhancements or later withdrew them. In other words, an otherwise identical defendant could face vastly different outcomes depending on which federal district he found himself prosecuted in. This disparity is contrary to Congress’s intent in establishing the Commission and the Sentencing Guidelines, which among other things were meant to eliminate such unfair outcomes.

The Report also found that the enhancements have a disparate impact on black defendants. Even after accounting for the fact that black defendants comprise a disproportionate share of eligible defendants (making up only 24% of all trafficking defendants but 42% of those eligible for the enhancement), the enhancements were further disproportionately applied against black defendants at prosecutors’ “discretion.” More than 51% of defendants against whom the enhancements were filed were black, as were nearly 58% of defendants who received the enhancements without later relief. These troubling statistics should be brought to the attention of the sentencing judge as the basis for a downward departure or variance from the Sentencing Guidelines in every case where they could help the defendant.

The Report relies on data from the year 2016. It therefore does not factor in the Trump administration’s policy changes, beginning in 2017, which directed federal prosecutors to apply for the most severe enhancements for which defendants are qualified, replacing the Obama administration’s previous, more lenient policies. (See our previous blog on that subject here.) Therefore, worse news may be yet to come.

The findings revealed in the Report underscore the fact that any person charged with a drug crime – whether in federal or state court – should consult with an experienced criminal attorney who is familiar with the U.S. Sentencing Guidelines and the latest research on their application before making critical decisions about how best to defend their interests.

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Changes to Pre-Trial Intervention Program Coming

John Roberts, Esq.
Arseneault & Fassett, LLP

New Jersey has adopted new Court Rules which affect the Pre-Trial Intervention (PTI) application and admission process for people charged with criminal offenses.

PTI is a diversionary program which allows eligible defendants charged with indictable offenses (commonly called “felonies”) to comply with supervision and rehabilitation prior to trial. Participants who successfully complete the program can have their criminal charges dismissed without a conviction. Supervision generally lasts between one and three years, and includes conditions such as reporting to a Probation officer, refraining from additional violations, seeking and maintaining employment, random drug testing, participating in substance abuse treatment, and paying restitution to any victims.

The new Rules creates several categories of PTI applications and set forth how each category will be considered, including:

  • Ineligible for PTI. PTI is not available to defendants who have previously participated in PTI or other diversionary programs, have been convicted of a first- or second- degree indictable offense, or have been sentenced to confinement for any level of indictable offense.
  • Ineligible for PTI without the Prosecutor’s consent. These include offenses that carry a presumption of incarceration or a mandatory minimum period of incarceration, as well as defendants who were previously convicted of a third-or fourth-degree offense without jail time. The prosecutor must review and consent to these applications before they can begin the standard review process with the criminal manager’s office.
  • Presumption against admission into PTI. Public officers or employees charged with an offense touching on their office and defendants charged with domestic violence offenses are presumed to be ineligible for PTI. However, the defendant’s attorney can submit to the criminal manager’s office with the application a written statement setting forth the “extraordinary and compelling circumstances” of a particular case to rebut the presumption.

A defense attorney’s advocacy is especially critical in the latter two categories. For applications which require the prosecutor’s consent, the prosecutor is not required to consider any facts favorable to the defendant which are not included in the application. Likewise, applications which are presumptively inadmissible must overcome a high bar to meet the “extraordinary and compelling” standard. An experienced criminal defense attorney can help assess a defendant’s application and advocate effectively for admission into PTI.

Furthermore, defendants whose PTI applications have been denied, either by the prosecutor or the criminal case manager’s office, can appeal the denials to the Court. However, very specific and exacting standards apply to such appeals. An experienced criminal defense attorney can best assess the likelihood of success and zealously advocate such appeals.

The new Rules were adopted by the New Jersey Supreme Court on September 15, 2017, and take effect on July 1, 2018.

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Third Circuit Opinion: United States v. Martin

John Roberts, Esq.
Arseneault & Fassett, LLP

In United States v. Martin, No. 16-4289 (3d Cir. Aug. 15, 2017), the U.S. Court of Appeals for the Third Circuit held that a defendant who was determined to be a career offender was ineligible for a reduced sentence under a Sentencing Guidelines amendment. Martin pleaded guilty, pursuant to a plea agreement under Rule 11(c)(1)(C), to possession with intent to distribute more than 50 grams of crack cocaine. The plea agreement stipulated an advisory guideline range of 70 to 87 months imprisonment and a sentence of 87 months. Prior to sentencing, the Pre-Sentence Report determined that Martin was a career offender based on his criminal record, and accordingly that his advisory guideline range was 188-235 months. The sentencing court agreed with the PSR report but also accepted the R. 11(c)(1)(C) plea and imposed a sentence of 87 months pursuant to the agreement.

The U.S. Sentencing Commission later promulgated Amendment 782 to the Sentencing Guidelines, which retroactively lowered the offense levels for many drug quantities, including Martin’s. Martin filed a motion for a new sentence under 18 U.S.C. §3582(c)(2), which the District Court denied. Martin appealed to the Third Circuit, arguing that his guideline range was 70-87 months as per his plea agreement, which should have been lowered to 57-71 months under the Amendment. Martin’s appeal relied on Freeman v. United States, 564 U.S. 522 (2011), in which the Supreme Court held that a R. 11(c)(1)(C) plea was eligible for a sentence reduction under §3582 if the plea agreement “expressly uses a Guidelines sentencing range applicable to the charged offense.”

The Court distinguished Martin’s case from Freeman, which did not involve the question of career offender status. It cited cases from two other Circuits, United States v. Leonard, 844 F.3d 102 (2d Cir. 2016), and United States v. Pleasant, 704 F.3d 808 (9th Cir. 2013), both of which held that when a court accepts a R. 11(c)(1)(C) plea, it effectively grants a departure or variance from an otherwise applicable Guideline sentence. Those cases comport with Third Circuit cases finding that “applicable guideline ranges” prior to Guideline Amendments to be career offender ranges. Thus the Court held that the “applicable guideline range” in Martin’s case was the career offender range, 188-235 months. Because that range had not been lowered by an Amendment to the Guidelines, the Court ruled, Martin was ineligible for a sentence reduction pursuant to §3582(c)(2).

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Third Circuit Opinion: United States v. Ferriero

John Roberts, Esq.
Arseneault & Fassett, LLP

In United States v. Ferriero, No. 15-4064 (3d Cir. Aug. 4, 2017), the U.S. Court of Appeals for the Third Circuit upheld the convictions of a former county Democratic party chairman for violations of the Travel Act, the Racketeering Influenced and Corrupt Organizations (RICO) Act, and wire fraud. The defendant had a contract with a vendor of emergency notification services to receive commissions for business that he was able to generate from municipalities. Defendant then introduced high-ranking officials from several towns to the vendor and encouraged them to do business while failing to disclose that he stood to gain financially.

Defendant argued on appeal that his conviction under the Travel Act, 18 U.S.C. §1952, should be overturned because the Government failed to prove that by violating New Jersey’s bribery statute he agreed “to undermine the integrity of the towns’ processes in considering whether to purchase the [vendor’s] product,” relying on United States v. Dansker, 537 F.2d 40 (3d Cir. 1976). The Court disagreed, reasoning that Dansker applied that additional requirement to a previous version of the bribery statute which has since been repealed and replaced. The Court found that the current version of the statute, N.J.S.A. 2C:27-2, is more narrow than the previous one, and thus does not require the additional element. The Court held that the evidence was sufficient to support defendant’s violation of 2C:27-2 and his conviction under the Travel Act.

Likewise, the Court upheld the defendant’s conviction under RICO, 18 U.S.C. §1962(c). Defendant argued that there was insufficient evidence of a “nexus” between the business of the “enterprise” (the party organization) and the pattern of racketeering (bribery). The Court concluded that a sufficient nexus did exist, because the party organization hosted networking events for vendors and municipal officials, and it was the defendant’s practice, if not his official duty, to advise municipal officials on hiring vendors. The Court held that a rational juror could conclude that the pattern of bribery was one means by which the defendant conducted party business.

Finally, the defendant appealed his conviction for wire fraud, 18 U.S.C. §1343. Ferriero argued that an email which his business partner sent in response to a municipal official’s inquiry about who owned the vendor was truthful as far as it went, and that omission of Ferriero’s financial interest did not qualify as a “false representation.” The Court disagreed, holding that in context the email withheld “critical qualifying information.” The Court held that “whether a representation is false or fraudulent is a contextual inquiry that a jury is particularly well-suited to assess,” given the jury’s first-hand access to witness testimony. In this case, a rational jury could find that the omission of critical information alone was sufficient to support a conviction. Thus the Court rejected Ferriero’s appeal and upheld his conviction in its entirety.

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