N.J. Attorney General Announces Potential Relief for Certain DWI Defendants

John Roberts, Esq.
Arseneault & Fassett, LLP

People who were convicted of driving while intoxicated (DWI) offenses in certain New Jersey counties between 2008 and 2016 may be eligible to have their convictions overturned.  The recent announcement by the Attorney General of New Jersey follows the decision of the New Jersey Supreme Court in State v. Cassidy, 235 N.J. 482 (2018).  In Cassidy, the Court found that a New Jersey State Police sergeant had failed to follow protocol for calibrating Alcotest (“breathalyzer”) devices used to measure blood-alcohol levels.  As a result, the Court ruled that the results of breath tests using the affected equipment were not sufficiently reliable to be admitted as evidence.  Therefore, the Court ruled, the affected defendants may be eligible to have their convictions overturned, or receive other post-conviction relief (PCR).

The affected cases originated between 2008 and 2016 in certain municipalities in the counties of Middlesex, Monmouth, Ocean, Somerset, and Union.  It is estimated that more than 13,000 convictions, either by guilty plea or by a finding of guilt after a trial, may be eligible.  In January 2019, New Jersey Chief Justice Stuart Rabner appointed a Special Master to handle the expected flood of PCR applications.

The State was required to send notice directly to all affected defendants at the address of record.  However, it is possible that not all affected defendants have received notices.  If you received a notice or believe you may meet the criteria for Post-Conviction Relief of your DWI conviction, you should contact an experienced criminal defense attorney who is familiar with the latest developments in the law.


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Update: Estimated Effects of the First Step Act

John Roberts, Esq.
Arseneault & Fassett, LLP

In the wake of the recent passage of the First Step Act, which was touted as “sweeping” criminal justice reform by the news media, the U.S. Sentencing Commission has released the first estimates of the Act’s effects on the current and future federal prison population. After analyzing Bureau of Prisons (BOP) statistics, not individual cases, the Report estimates that out of a total population of 180,218 federal inmates:

  • 142,448 are eligible to earn increased Pre-Release Custody (“good time” credit);
  • 106,114 are eligible for Risk and Needs Assessments;
  • 2,660 are eligible for retroactive application of the Fair Sentencing Act, which reduced the disparity in sentencing between powder and crack cocaine;
  • 2,045 are eligible for broadened application of the Safety Valve, which avoids mandatory minimum sentences for first-time drug offenders;
  • 1,882 are eligible for the Federal prison Reentry Initiative Reauthorization, including qualifying offenders who are age 60 or older, have served two-thirds of their sentences, and were in BOP custody as of May 26, 2018;
  • 57 will be eligible annually for the adjustment to 18 U.S.C. § 924(c), which applies to certain first-time firearms offenders sentenced for multiple firearms counts on the same day;
  • 56 will be eligible annually for the lower enhanced mandatory minimums under 18 U.S.C. § 851 (the “Three Strikes” law) for second and subsequent drug offenses.

The Commission has further estimated the effects of the Act on three categories of cases:

  • Enhanced mandatory minimums for second and subsequent drug offenses (“Three Strikes” law). The Act reduced the minimum for a second qualifying offense from 20 years to 15 years, and for a third or subsequent offense from life to 25 years. Enhanced mandatory minimums apply to an average 189 new cases annually. It is estimated that 56 of these cases annually will benefit going forward. The average sentence in qualifying cases, which would have been 267 months, will be an estimated 211 months. This reduction of 4 years, 8 months in predicted sentences in future cases is invaluable to inmates, as well as saving the BOP nearly $150,000 per case.
  • Broadened qualifications for the Safety Valve. The Act relaxed the criteria for avoiding mandatory minimums for certain drug offenses, allowing offenders with as many as 4 criminal history points, barring a single 3-point offense or a 2-point violent offense. Of 2,260 qualifying cases annually, an estimated 2,045 will benefit going forward, with resulting sentences reduced from an average 55 months to 43 months, a reduction of one year imprisonment for the average offender.
  • Clarification of 18 U.S.C. § 924(c). The Act clarified that multiple firearms offenses sentenced on the same day do not trigger enhanced penalties under 18 U.S.C. § 924(c). Of the 103 cases sentenced annually under this provision, an estimated 57 will benefit, reducing the average sentence from 624 months to 296 months. This provision provides the greatest relief, an estimated average reduction of more than 27 years per case, albeit to a relative handful of offenders annually.

These preliminary estimates support our initial assessment that, for all the fanfare surrounding enactment, the First Step Act holds out very modest relief for most inmates and significant relief for very few. (Read our prior article on the First Step Act here: http://www.af-lawfirm.com/blog/?p=94).

If you or a loved one are facing investigation or prosecution for federal criminal charges, you should retain an experienced criminal defense firm that is fluent in the latest developments in every aspect of the law, including sentencing.


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Federal Criminal Sentences Increasingly Vary by Judge

John Roberts, Esq.
Arseneault & Fassett, LLP

The disparity in criminal sentences meted out by federal judges is increasing, according to a new report issued by the U.S. Sentencing Commission. The Report, entitled Intra-City Differences in Federal Sentencing Practices: Federal District Judges in 30 Cities, 2005–2017, studies disparities according to sentencing judge since the Supreme Court ruled that the U.S. Sentencing Guidelines are advisory rather than mandatory in United States v. Booker.

The Commission selected 30 cities to represent eleven of the twelve appellate circuits, as well as the major geographical regions.  As a result of the Commission’s selection criteria, no New Jersey city was studied.  However, Philadelphia (Eastern District of Pennsylvania) and Manhattan (Southern District of New York) feature in the Report.

After excluding certain categories of cases from its analysis — such as those in which a life sentence was mandatory, or where the court granted downward departure due to the defendant’s cooperation — the Commission analyzed 143,589 cases.  The breakdown of types of offenses are as follows: 31.0% for drugs (USSG § 2D1.1); 14.2% for unlawful entry/remaining (§2L1.2); 13.1% for theft, embezzlement, and fraud (§2B1.1); 12.7% for firearms (§2K2.1); and 29.0% for other offenses.

The Commission measured the difference between the low end of the Guideline range and the ultimate sentence in each case, expressed as a percentage of the Guideline minimum. For example, if the Guideline minimum was 60 months and the sentence was 72 months, the result was (12/60 = ) +20%. Conversely, if the minimum was 60 months and the sentence was 36 months, the result was (24/60 =) –40%. The Commission chose to measure differences from the bottom of the Guideline range based on two remarkable preliminary findings:

  • Most (58.4% of) sentences imposed within the Guideline range are precisely at the Guideline minimum.
  • Courts depart or vary downward from the Guideline range 21 times more frequently than upward.

Based on these preliminary findings, the Report commented that the Guideline minimum exerts a “gravitational pull” on sentences.

Currently, the courts in the S.D.N.Y. impose sentences that average 36.3% below the Guideline minimum, which is the largest downward deviance from the minimums among all 30 cities studied.  Philadelphia is 18.4% below the Guideline minimum, due in large part to a single sentencing judge who was a statistical “flyer,” who sentences an average 40% below the minimum.

The Report concludes that “[i]n most cities, the length of a defendant’s sentence increasingly depends on which judge in the courthouse is assigned to his or her case.”  The important unstated conclusion is that as judges increasingly exercise their discretion to vary from the advisory sentencing guidelines, the more important it is for defendants to have the best representation possible.  If you or a loved one are facing federal prosecution or even investigation, immediately engage the services of an experienced federal criminal defense firm with a track record of positive results.

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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.”


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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