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February 11, 2008

Crack debate becoming really whack really quickly

When the US Sentencing Commission decided in December to make its new crack guidelines retroactive effective March 3, 2008, I knew that the script was already in place for sentencing March Madness.  But with AG Michael Mukasey's recent congressional testimony urging Congress to block retroactivity for the new crack guidelines (basics here and here), crack wackiness has gotten a running start.  And there is no evidence that sanity is going to prevail anytime soon.  Indeed, news reports and upcoming events suggest that the crack story will only get more whack in the days and weeks ahead.

First, consider this interesting and troublesome news report from Buffalo, headlined ""Battle shapes up over crack sentences: Waivers may block bids for early release."  The article indicates that the local US Attorney may rely on appeal waivers in plea agreements to try to deny defendants who pled guilty the benefit of the new crack guidelines:

Crack dealers convicted in Western New York may face a legal fight from federal prosecutors if they apply for early releases from prison under new sentencing guidelines approved late last year....

U.S. Attorney Terrance P. Flynn may oppose requests to reduce the sentences of previously convicted people, based on a legal waiver that is routinely included in federal plea agreements filed in Buffalo and Rochester. Dating to at least 1997, hundreds of federal drug offenders in the region have agreed to the waiver, promising that they would never ask for reduced sentences — even if future changes in the law allowed them to do so. “At this point, we haven’t decided whether we will try to enforce the waiver,” said Assistant U.S. Attorney Joseph M. Guerra III, Flynn’s top aide for drug prosecutions. “We’ve talked about the situation with [Justice Department] officials in Washington, and we’re waiting for guidance or directives from them.” ....

At least eight men and one woman already have filed court papers in Buffalo or Rochester, asking for their crack sentences to be reduced, according to Guerra.... Most of the federal prosecutors throughout the country do not require offenders to sign the kind of waiver that is required locally, court officials said....

Of course, one of many ironies of prosecutors trying to use appeal waivers to block crack retroactivity would be that only folks who pled guilty and accepted responsibility would get stung by this policy.  Defendants who went to trial and lost don't have appeal waivers to worry about, but defendants who took accepted the government plea terms are now at risk of getting the courtroom door shut as a result of their decision to plead guilty.  I guess this could be an example, to tweak a great quote, of no good plea deal going unpunished.

Meanwhile, as detailed in this official notice, tomorrow brings a hearing on "Federal Cocaine Sentencing Laws: Reforming the 100-to-1 Crack/Powder Disparity" scheduled by the Senate Committee on the Judiciary before the Subcommittee on Crime and Drugs at 2:30 pm.   Here's the current witness list:

I believe this hearing is supposed to be focused on possible legislative changes to the 100-1 crack/powder ratio that remains in place in federal statutory mandatory minimum provisions.  However, in light of AG Mukasey's call for legislation to block the retroactivity of the new crack guidelines, I would expect all sort of craziness coming from the star-studded group of Senators that sit on the Senate Judiciary Subcommittee on Crime and Drugs.

February 11, 2008 at 10:41 AM | Permalink

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Comments

I do NOT believe that an appeal waiver (or even a waiver of 2255 rights) will prevent a person from filing a 3582(c) motion, unless the language of the plea agreement details such. See US v. Chavez-Salais, 337 F.3d 1170 (10th Cir. 2003).

Posted by: DEJ | Feb 13, 2008 4:37:17 PM

Two days later, the US Attorney backed down and affirmed that, in the interest of national uniformity, they would not use the waiver to block releases in accordance with the USSG revisions.

http://www.buffalonews.com/cityregion/story/275234.html

Posted by: | Feb 25, 2008 8:57:03 PM

Two days later, the US Attorney backed down and affirmed that, in the interest of national uniformity, they would not use the waiver to block releases in accordance with the USSG revisions.

http://www.buffalonews.com/cityregion/story/275234.html

Posted by: | Feb 25, 2008 8:57:25 PM

I'm a defense (CJA) counsel with an appeal of a denial of a crack readjustment. My AUSA has countered with a motion to dismiss the appeal based on a waiver of appeal in the original plea agreement (years before crack guidelines change.) I'm just starting into the research and noticed your note when I 'googled.'

Posted by: J Cartwright | Oct 6, 2008 5:20:45 PM

I'm a defense (CJA) counsel with an appeal of a denial of a crack readjustment. My AUSA has countered with a motion to dismiss the appeal based on a waiver of appeal in the original plea agreement (years before crack guidelines change.) I'm just starting into the research and noticed your note when I 'googled.'

Posted by: J Cartwright | Oct 6, 2008 5:21:26 PM

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