Tag: federal sentencing

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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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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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. 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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