Tag: federal criminal law

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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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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Third Circuit Opinion: United States v. Chapman

John Roberts, Esq.
Arseneault & Fassett, LLP

In United States v. Chapman, No. 16-1810 (3d Cir. Aug. 4, 2017), the U.S. Court of Appeals for the Third Circuit held that mailing threatening communications, in violation of 18 U.S.C. §876(c), qualifies as a “crime of violence” for purposes of determining career offender status under the U.S. Sentencing Guidelines. Violations of §876(c) are punishable by up to five years imprisonment generally, or up to ten years if directed against a federal judge or federal law enforcement official. Chapman had been convicted of two prior violations of §876(c), first after he mailed a letter threatening to kill President George W. Bush, and then after mailing a letter which threatened a federal judge and court staff. After violating the terms of his supervised release following his second conviction, Chapman sent another threatening letter to the federal prosecutor who was handling Chapman’s revocation. After pleading guilty, Chapman was deemed a career offender based on his three convictions under §876(c).

Chapman argued that mailing threatening communications was not a crime of violence because it did not require “violent physical force.” The Court applied a categorical approach to the question, comparing only the elements of the statute against the guideline and disregarding the particular facts of Chapman’s offenses. By this method, if the statute has the same element as the guideline, or defines the offense more narrowly, then a violation counts toward career offender status. If the statute defines offense conduct more broadly, then career status is not implicated. The Sentencing Guidelines define the predicate “crime of violence” as including any offense punishable by more than one year imprisonment that has as an element the “threatened use of physical force against another.” The statute prohibits communications “containing [] any threat to injure the person of the addresses or of another.” The Court noted the Supreme Court’s interpretation of “physical force” as “violent force” and reasoned that the common definition of “injure” implicates “physical force.” Therefore, the violations of §876(c) qualify toward career offender status. By its holding, the Court brought the Third Circuit into alignment with the First, Second, Eighth, and D.C. Circuits.

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Trump Administration Sets Strict New Course for Federal Prosecutions

John Roberts, Esq.
Arseneault & Fassett, LLP

The Attorney General of the United States, Jeff Sessions, has issued a memorandum to all federal prosecutors establishing the strict new policy of the Trump Administration’s Department of Justice (DoJ) for charging and sentencing federal offenses. The “Sessions memo” overturns a series of “Holder memos,” issued during the Obama administration, which had urged prosecutors to avoid charging crimes that carry mandatory terms of imprisonment in certain cases.

The Sessions memo outline two broad directives. First, federal prosecutors are to “charge and pursue the most serious, readily provable offenses.” Leaving nothing to the imagination, the memo defines “serious” offenses as “those that carry the most substantial guidelines sentence, including mandatory minimum sentences.” Second, the memo directs prosecutors to disclose to the sentencing court all facts that could impact a judge’s sentencing decision, and to seek sentences within the U.S. Sentencing Commission’s Guidelines. Any Government recommendations for variances or departures from the Guidelines requires the approval of supervisors. Further, prosecutors who wish to deviate from the principles of the memo must justify such with “unusual facts” and must document those special circumstances for the file.

The Sessions memo explicitly rescinds any previous DoJ policies which would be inconsistent with the new one, and it specifically cites the Holder memos issued in 2013 and 2014. The Holder memos had directed prosecutors to avoid seeking mandatory-minimum and enhanced sentences for nonviolent, low-level drug-distribution defendants who were not part of large-scale criminal organizations and did not have significant criminal records. Those relatively lenient policies are now history under the Trump administration.

By requiring front-line prosecutors to pursue the most serious provable charges and disclose all relevant facts to the sentencing court, the new policy seeks to deny them a major avenue of prosecutorial discretion — the ability to be flexible and reasonable in applying the law to the specific circumstances of each defendant to obtain the most just result. In light of these new policies, it is more important than ever in certain cases where a person is under scrutiny by federal law enforcement for an experienced criminal defense attorney to interface with prosecutors as early in the process as possible. In such cases, an early resolution may prove more favorable for the client than would be possible after an investigation has developed to the point where unreasonably serious charges are filed and prosecuted.

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