Sentencing Law and Policy

Tenth Circuit rejects novel argument about crack retroactivity rules

The Tenth Circuit today in US v. Dryden, No. 08-3310 (10th Cir. April 30, 2009) (available here), rejects a defendant's novel effort to get the benefit of the new retroactive crack guidelines. Here is how it starts:

After the United States Sentencing Commission decided to give retroactive effect to its recent amendment to the crack-cocaine guidelines, Edward Dryden moved under 18 U.S.C. § 3582(c)(2) for a reduction in his sentence.  The district court denied the motion, agreeing with the government that a reduction would be barred by the Commission’s policy statement in USSG § 1B1.10(a)(2) , because the amended guideline would not have reduced Mr. Dryden’s guideline sentencing range. Mr. Dryden appeals, raising the novel argument that the Commission’s policy statement results from an unconstitutional delegation to the Commission of legislative authority to restrict the jurisdiction of federal courts.  See Panama Ref. Co. v. Ryan, 293 U.S. 388 (1935).  Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

Eleventh Circuit rejects arguments for a right to counsel at crack sentence modification proceedings

Addressing an interesting right to counsel issue, the Eleventh Circuit today in US v. Webb, No. 08-13405 (11th Cir. April 13, 2009) (available here), concludes that "there is no statutory or constitutional right to counsel for a § 3582(c)(2) motion or hearing [and thus] the decision to appoint an attorney is left to the discretion of the district court."  I believe that this Webb ruling is the first circuit decision on this right to counsel issue in the application of the US Sentencing Commission's recent reduction of crack guideline sentences, but the Eleventh Circuit says that other circuit have come to the same conclusion in earlier decisions:

The notion of a statutory or constitutional right to counsel for § 3582(c)(2) motions has been rejected by all of our sister circuits that have addressed the issue, and we agree with this consensus.  See United States v. Legree, 205 F.3d 724, 730 (4th Cir. 2000); United States v. Tidwell, 178 F.3d 946, 949 (7th Cir. 1999); United States v. Townsend, 98 F.3d 510, 512–13 (9th Cir. 1996) (per curiam); United States v. Whitebird, 55 F.3d 1007, 1010–11 (5th Cir. 1995); United States v. Reddick, 53 F.3d 462, 464-65 (2d Cir. 1995).  As the Fifth Circuit noted, a § 3582(c)(2) motion “is simply a vehicle through which appropriately sentenced prisoners can urge the court to exercise leniency to give certain defendants the benefits of an amendment to the Guidelines,” rather than “a challenge to the appropriateness of the original sentence.” Whitebird, 55 F.3d at 1011.  A defendant bringing such a motion thus would not be eligible for the Sixth Amendment rights that would normally attach in a sentencing or resentencing hearing. See id.; see also Townsend, 98 F.3d at 512–13 (agreeing with Whitebird’s rationale).  Additionally, we decline to find that the Fifth Amendment provides a mandatory right of counsel for all § 3582(c)(2) motions as a matter of fundamental fairness. The Federal Rules of Criminal Procedure permit courts to hold § 3582(c)(2) hearings without defendants being present. See Fed. R. Crim. P. 43(b)(4). Since we have found that the rights afforded under Rule 43 are at least as broad as those from Fifth Amendment due process, a defendant has no right to be present at such a hearing, and thus there would be no automatic Fifth Amendment right to counsel.

A footnote at the end of this discussion adds this important point that may help mitigate the practical impact of this ruling in many settings:

We note that courts have the discretion to appoint counsel.  See Whitebird, 55 F.3d 1011.  Given the array of factors that courts now must consider in deciding whether to reduce a sentence under § 3582(c)(2), there may be instances in which equitable concerns would make the appointment of counsel appropriate to ensure a just outcome.  See United States v. Robinson, 542 F.3d 1045, 1052 (5th Cir. 2008) (appointing counsel in § 3582(c)(2) proceeding “in the interest of justice” and noting that the “new complexities” created by changes to the sentencing guidelines might necessitate reconsideration of whether there should be a statutory or constitutional right to counsel in all such cases).

Split Third Circuit debates crack guideline retroactivity following binding sentencing plea

In a complicated ruling on Friday, a divided Third Circuit in US v. Sanchez, No. 08-1847 (3d Cir. April 5, 2009) (available here), seemed to create a circuit split on whether a district court can reduce a previously imposed crack sentence based on a binding plea agreement.  The first paragraph of Judge Roth's dissent from the Sanchez majority provides a flavor of the issues involved:

No good deed goes unpunished.  The majority provides for resentencing under § 3582(c) for criminal defendants who go to trial – but not for those who enter into binding plea agreements.  For the majority, the binding nature of such agreements justifies a difference in the treatment between the offenders who choose to go to trial and those who choose to plead guilty thus saving judicial and governmental resources.  I find this distinction false because a jury verdict is also binding on the parties. Accordingly, I believe that the binding effect of the factors leading up to the judgment should not preclude the application of § 3582(c).  For these reasons, I respectfully dissent from the majority opinion and suggest that defendants sentenced under binding plea agreements should be permitted to move for resentencing based on a change in the Guidelines that would affect the basic elements that led up to the final plea agreed upon.

For various reasons, Sanchez is not likely a good cert vehicle.  But the ruling spotlights another challenging legal issue that has arisen in the retroactive implementation of the new crack guidelines.  It will be interesting to see if the Supreme Court ever takes up any cases involving resentencings under § 3582(c).

A strong pitch to SCOTUS to have Booker apply to crack sentence reductions

Late last week, a prominent group of SCOTUS gurus filed a cert petition in US v. Dunphy making a full-throated argument for judges to have broad resentencing authority when ruling on motions to reduce previously imposed crack sentences.  The cert petition can be downloaded below, and here is its summary statement of reasons for granting the writ:

Federal courts across the country are divided over whether federal district courts must treat amended sentencing guidelines ranges as binding when imposing new sentences under 18 U.S.C. § 3582, or whether this Court’s holding in United States v. Booker, 543 U.S. 220 (2005), requires that they be treated as only advisory.  This question is important and arises frequently, particularly in the context of the amended guidelines for crack cocaine offenses.  This is such a case and is an ideal vehicle for resolving the split of authority.

The Fourth Circuit’s holding that district courts must treat the Guidelines as binding in 18 U.S.C. § 3582 proceedings also is wrong.  This Court held in Booker that the Guidelines violate the Sixth Amendment when they require a longer sentence than is otherwise allowed based on the elements of the crime of conviction. Id. at 244.  Such is the case here. Furthermore, treating the Guidelines as binding when constructing a new sentence flouts Booker’s mandate that binding guidelines are “no longer an open choice.”  Booker, 543 U.S. at 263; accord United States v. Spears, 129 S. Ct. 840, 842 (2009) (per curiam) (Guidelines are “advisory only”) (quoting Kimbrough v. United States, 128 S. Ct. 558, 560 (2007)).

It is no answer to claim, as the Fourth Circuit does and the Sentencing Commission suggests, that proceedings under Section 3582 do not constitute “full” resentencings. Pet. App. 8a-9a, 11a, 15a.  That is just a label. District courts impose new sentences under Section 3582 the same way they conduct other resentencings. And whenever a court reopens a sentence and constructs a new one, it must do so in accordance with the law that exists at the time the new sentence is imposed, not just with (retroactive) sentencing guidelines.  Booker is the law; this Court should instruct the federal courts of appeals again that they must follow it.

Download Dunphy Cert Petition

Ducan Fanfan loses appeal seeking greater crack sentence reduction

Ducan Fanfan — who, in a future "law nerd" version of Trivial Pursuit, will be the answer to the question "What was the name of the defendant in the companion case to US v. Booker?" —  has made some more appellate law news today as a result of the First Circuit's work in US v. Fanfan, No. 08-2062 (1st Cir. Mar. 4, 2009)(available here).  Here is how Fanfan's latest legal loss begins:

After much litigation, Appellant Ducan Fanfan's sentence for a drug offense involving crack cocaine became final.  United States v. Fanfan, 468 F.3d 7 (1st Cir. 2006), cert. denied, 549 U.S. 1300 (2007).  On July 9, 2008, Fanfan sought an adjusted sentence under 18 U.S.C. § 3582(c)(2) in light of a subsequent amendment to the guidelines that effectively reduced the guideline range for certain crack cocaine offenders. U.S.S.G. Amendment 706 (effective Nov. 1, 2007). The district court granted this request and imposed a sentence within the new guideline range.  On the same day that the district court allowed his request, Fanfan filed a motion for reconsideration, asking the court to instead impose a variant sentence below the new guideline range based on the district court's Kimbrough discretion.  The district court refused and, in citing another district court decision, United States v. Julien, 550 F. Supp. 2d 138 (D. Me. 2008), indicated that it did not believe it had the legal authority to impose such a variant sentence in the § 3582(c)(2) context. Fanfan appeals this conclusion.  After careful consideration, we affirm.

Latest official data on implementation of retroactive crack guidelines

The US Sentencing Commission has available here the latest updated data on the retroactive application of its revised crack sentencing guidelines. Here is how the data is described:

A set of tables presenting preliminary data on cases in which a motion for a reduced sentence was considered under 18 U.S.C. § 3582(c)(2).  These cases involve retroactive application of the crack cocaine amendment to the sentencing guidelines (Amendment 706, as amended by Amendment 711) which became effective on November 1, 2007 and which was made retroactive effective March 3, 2008.  The data in this report represents those motions decided by the courts through January 21, 2009 and for which data was received, coded, and edited by the Commission as of January 26, 2009.

As I have said before, I continue to be impressed and somewhat surprised by how few problems there have been applying the new crack guidelines retroactively, especially given what a huge fuss was made by the Justice Department about the idea before it became a reality back in March.

Though Booker did not help Booker, the reduced crack guidelines did

The significance of the US Sentencing Commission's decision to make its reduced crack guidelines retroactive has been usefully highlighted by a ruling today in favor of a defendant with a well-known name: Freddie Booker.  As sentencing fans recall, though Booker won his Supreme Court case, he was sentencing again to the same 360-month term imprisonment at resentencing because the Booker remedy authorized sentence-enhancing judicial fact-finding as long as the guidelines were treated as advisory.  But today, as reported here via an e-mail from a federal defender, Freddie finally go a sentencing break:

Although meager, and way too late, I am pleased to report that Freddie Joe Booker finally got at least a small amount of relief.  Chief Judge Crabb in the Western District of Wisconsin today granted Freddie Booker's 3582 motion and reduced his 360-month sentence to 324 months (bottom of range two levels lower).

Another local article showing relative ease of implementing crack reductions

This effective local article, headlined "Q-C crack cocaine sentences reduced," provides yet another example of how effectively and efficiently lower courts have been implementing the reduced crack sentences that the Sentencing Commission made retroactive. Here are snippets:

After playing football for the Iowa Hawkeyes, Ernest Crank turned to dealing crack cocaine. The amount of crack he dealt landed Crank, a native of Chicago, in a federal courtroom in Davenport and then in federal prison for 20 years. Crank has learned much during time so far in prison, court documents say.

“He has taken advantage of every program made available to him,” his attorney, Clemens Erdahl, wrote in a motion to reduce Crank’s sentence. “His self-education in the law … is evidence of an excellent mind and the ability to channel his time and energy productively. Thus, defendant is a better man than the one who was incarcerated over nine years ago.”

But what Crank has come to know during his prison time has little to do with the four-year reduction in sentence he received. Instead, his request is one of thousands filed nationally as federal officials reduced the amount of time people spend in prison for dealing the highly addictive drug that affects the black community more than any other....

For the most part, the process has gone smoothly in the two federal courthouses that serve the Quad-Cities, officials said. Prosecutors and defense attorneys worked with probation officers to sift through applications to determine who was eligible and who was not. People with mandatory sentences and career offender status were out. A few people convicted of other types of crime attempted to ask for reductions, too.

In the Central District of Illinois, of which the Illinois Quad-Cities is a part, 307 cases were considered as of the beginning of December, according to the U.S. Sentencing Commission. Of those 139 were granted, and 168 were denied. The average decrease was 28 months.

Jeff Lang, assistant U.S. attorney, said the process was smooth for the most part. Prosecutors examined cases to determine if a person would present a substantial public safety risk if released...

In the Southern District of Iowa, which includes the Iowa Quad-Cities, 144 cases were considered as of December, according to the U.S. Sentencing Commission. Eighty were granted; 64 were denied. The average reduction was 27 months.

Second Circuit uses lenity principles to interpret broadly judicial authority to grant crack reductions

The Second Circuit today in US v. McGee, No. 08-1619 (2d Cir. Jan. 23, 2009) (available here), works through the particulars of whether and when a defendant may be able to get the benefit of the new crack guidelines.  The opinion's methodology, as well as its result, may hearten a lot of defendants and counsel who have not been able to get all the relief they seek through crack reduction motions.  Here are the key concluding sections of the McGee ruling:

We acknowledge that U.S.S.G. § 1B1.10 can be read to permit a reduced sentence only where the defendant’s pre-departure sentencing range is found within the crack cocaine guidelines. However, “the meaning of language is inherently contextual [and] the [Supreme] Court has always reserved lenity for those situations in which a reasonable doubt persists about a statute’s intended scope even after resort to the language and structure, legislative history, and motivating policies of the statute.” United States v. Dauray, 215 F.3d 257, 264 (2d Cir. 2000) (alteration and quotation marks omitted); see also United States v. Simpson, 319 F.3d 81, 86-87 (2d Cir. 2002) (holding that the rule of lenity applies to Sentencing Guidelines).  Here, we conclude that there is ambiguity as to whether the Sentencing Commission intended to exclude defendants such as McGee, who were clearly sentenced based on the crack cocaine guidelines and were disadvantaged by the 100-to-1 sentencing disparity that the crack amendments sought to correct, from the reach of the amendments....

We conclude that a defendant who was designated a career offender but ultimately explicitly sentenced based on a Guidelines range calculated by Section 2D1.1 of the Guidelines is eligible for a reduced sentence under 18 U.S.C. § 3582(c)(2) and the crack amendments.

Seventh Circuit covers a lot of 3582(c) crack sentencing reduction issues

A new per curiam opinion today from the Seventh Circuit, US v. Foreman, No. 08-2177 (7th Cir. Jan. 22, 2009) (available here), goes over a lot of law concerning efforts by defendants to get the benefit of the new crack guidelines.  Here is how the opinion begins:

Late last year the Sentencing Commission reduced the base-offense levels for crack-cocaine offenses and made the changes retroactive.  SeeU.S.S.G. § 2D1.1(c); U.S.S.G., Supp. to App. C 226-31 (2008) (Amendment 706). Since then scores of convicted crack offenders have returned to the district courts to request sentence reductions under 18 U.S.C. § 3582(c)(2).  But not everyone is eligible; we have consolidated for decision five appeals, each from a denial of a motion under § 3582(c)(2), that illustrate several common barriers to sentence modification.

The opinion generally does not appear to break much (if any) new ground, though I did notice this summary rejection of an issue that is being litigated in other lower courts:

As for the denial of Forman’s motion to appoint additional counsel, there is no right to counsel when bringing a motion under § 3582(c)(2).

Notably, in support of this assertion, the Seventh Circuit does cites case a roughly decade old or older.

Another local account of crack sentence reductions

This local story from Alabama provide a southern perspective on the impact and implementation of the new federal crack sentencing guidelines.  Here are the details:

Alabama federal inmates who have petitioned the courts to reduce their prison sentences on crack cocaine offenses were successful two-thirds of the time, shaving an average 2½ years off their terms. That's the highest success rate of the three states making up the 11th U.S. Circuit, according to an analysis of statistics in a recent report by the U.S. Sentencing Commission....

By the thousands, inmates are petitioning federal courts for reduced sentences. According to the sentencing commission's report, 17,168 applications have been filed nationwide, and 12,119 - 70 percent - had been granted through Dec. 8, the latest statistics available. Inmates nationwide also are getting an average reduction of 2½ years.

According to the sentencing commission's report, 402 of the 602 applications filed in Alabama federal courts, 66 percent, have been approved. Georgia was next with 65 percent of its applications granted. Florida, which had the most applications filed with 1,895, granted 55 percent, the analysis by The Birmingham News showed.

"A majority of who were eligible for relief, got it," said Cynthia McGough, chief federal probation officer in Birmingham. "Only a few were turned down on merit where a judge reviewed the facts of the case and thought the person should not get relief. Some were released from prison because, after the reduction, they got credit for time served."...

Implementing the new crack guidelines retroactivity in Connecticut

The Connecticut Law Tribune has this new article detailing how the new crack guidelines have been implemented in the Nutmeg State.  Here are some excerpts:

According to statistics compiled by the Federal Public Defenders Office in Connecticut, 154 out of 410 potentially eligible inmates in Connecticut had their sentences reduced between March 2008 and the beginning of this month.  Eighty other petitions were denied, while about 50 more are still pending.

“The biggest problem was screening all the potential candidates and determining if they’re eligible,” said Connecticut Federal Defender Thomas Dennis. He said far more than 410 inmates contacted his office to inquire about their eligibility, even those without crack cocaine convictions....

According to Sarah Merriam, an assistant federal defender who has monitored every Connecticut challenge, 50 percent of the reductions were agreed to by both sides.  Merriam said that 60 of the 154 Connecticut defendants who had sentences reduced have been released....

Also, just because a defendant was eligible for a reduction did not mean a judge had to grant it.  Merriam said an inmate’s behavior in prison was taken into account.  However, the most common reasons for rejection were if the defendant was a career criminal or if they had a mandatory minimum sentence.  Merriam said the crack re-sentencing guideline was superseded by another sentencing guideline that applied to defendants who had committed two prior crimes.

“There are still some questions about eligibility,” said Dennis, noting that there are several appeals pending in U.S. District Court from defendants whose sentencing reductions were not granted. “I imagine it’ll take another year or so before all these issues get ironed out.”

One issue Dennis never expected amongst those eligible for an earlier release from prison -- inmates not wanting to leave early.  “A couple clients didn’t want us to file [a petition] on their behalf,” said Dennis. “I don’t know if they like it [in prison] but they didn’t want us to do anything. So we acceded to their request.”

Lots of notable sentencing action from the Eighth Circuit

By my quick count, the Eighth Circuit has already handed down nearly a dozen sentencing opinions this week.  And two of the rulings today are especially noteworthy because they deal with the constitutionality of prosecutions under the federal Sex Offender Registration and Notification Act and with the scope of a judge's authority in crack retroactivity proceedings.  Here are unofficial summaries these rulings from this official opinions page:

• United States v. Howell, No. 08-2126 (8th Cir. Jan. 13, 2009) (available here):

18 U.S.C. Sec. 2250, which provides for prosecution of anyone who fails to register under the Sex Offender Registration and Notification Act (SORNA) is a constitutional exercise of Congress's commerce clause powers; SORNA's registration provision is a constitutional exercise commerce clause power as it is an appropriate aid to the accomplishment of the goal of tracking the interstate movement of sex offenders; in defendant Howell's case, the district court did not err in concluding the Northern District of Iowa was the proper venue for his prosecution as his SORNA offense commenced in the district.

• United States v. Starks, No. 08-2590 (8th Cir. Jan. 13, 2009) (available here):

The Sentencing Commission's policy statement in Guidelines Sec. 1B1.10 which specifies that proceedings under 18 U.S.C. Sec. 3582(c) do not constitute a full resentencing and which directs that the sentencing court must not reduce the sentence of a defendant who was originally sentenced within the applicable guidelines range to a term that is less than the minimum of the amended guidelines range is constitutional and enforceable, and the district court correctly determined that it lacked the authority to further reduce defendant's sentence.

Notable crack reduction opinion from the Second Circuit

Virtually every day now we get a new opinion from the circuit courts about the legal rules surrounding federal sentence reductions pursuant to 18 U.S.C. § 3582(c)(2).  The latest such decision is from the Second Circuit in US v. v. Williams (Lewis), No. 08-1065 (2d Cir. Jan. 7, 2009) (available here).  Here is the court's summary of its work in this case:

Appellant appeals from a denial of a motion seeking a reduced sentence pursuant to 18 U.S.C. § 3582(c)(2) following the amendment to the Sentencing Guidelines applicable to crack cocaine violations. In denying the motion for resentencing, the District Court for the Northern District of New York (Mordue, J.), found that because Appellant’s original sentence was a non- Guidelines sentence resulting from a departure from the statutory minimum sentence pursuant to 18 U.S.C. § 3553(e), he was not eligible for a reduced sentence under the amended Guidelines.  We agree with the district court’s interpretation of § 3582(c)(2) and find that Appellant is not eligible for a new sentence under the revised Guidelines because the Guidelines provision underlying the sentence that was finally imposed on the Appellant was not a provision affected by the subsequent amendment to the Guidelines. AFFIRMED.

Fourth Circuit rules guidelines limit reduction for crack retroactivity

Ruling in accord with a recent Tenth Circuit ruling concerning Booker's inapplicability to crack retroactivity proceedings (blogged here), the Fourth Circuit yesterday US v. Dunphy, No. 08-6919 (4th Cir. Dec. 5, 2008) (available here), ruling that there is a limit on the extent of the sentence reduction that defendants can get in crack retroactivity proceedings.  The Dunphy ruling is thorough and thoughtful, and a long opinion is quickly summarized by the ruling's conclusion:

When a sentence is within the guidelines applicable at the time of the original sentencing, in an 18 U.S.C § 3582(c) resentencing hearing, a district judge is not authorized to reduce a defendant’s sentence below the amended guideline range.

"New Sentencing Guidelines For Crack, New Challenges"

The title of this post is the title of this article in today's Washington Post. Here are a few snippets:

From March through the first week of December, federal judges in the Eastern District of Virginia and in Maryland granted more than 800 such requests and denied about 490. Judges in the District have granted more than 160 and denied nine. Lawyers said Virginia's federal courts have received a large number of applications filed by inmates representing themselves, and many are not eligible for reductions. In the District, the federal public defender is coordinating the effort....

In many cases, prosecutors didn't contest the reductions because the convicts were near the end of their sentences.  In others, prosecutors and defense attorneys agreed on reductions within the new guideline.  Thousands more cases remain, among them hundreds in Washington area federal courthouses. They have been more difficult to resolve, prosecutors and defense attorneys said....

Lawyers say some cases present such complex legal issues that they expect appeals. Certain cases are so difficult that, even when prosecutors agree that an offender is a candidate for a reduction, both sides disagree on how much.  Prosecutors say some convicts don't deserve much of a break because of bad conduct or criminal history.  And some offenders, they say, deserve no leniency at all.

Though not mentioned in this article, one of the challenges facing the courts concerns whether defendants who pled guilty under special terms when the old guidelines were applicable should get the benefit of the new guidelines.  This issue split a Fourth Circuit panel earlier this week in US v. Dews, No. 08-6458 (4th Cir. Dec. 30, 2008) (available here).  Stated precisely, the majority decided that two particular crack sentences imposed following a plea under Rule 11(e)(1)(C) were eligible for reduction under 18 U.S.C. § 3582(c)(2); the dissent claimed that sister circuits had held in other settings that sentences pursuant to 11(e)(1)(C) pleas could not be reduced.

Tenth Circuit find Booker not applicable in crack retroactivity proceedings

A helpful reader reminded me today that I still haven't blogged about an important Tenth Circuit ruling concerning Booker's applicability to crack retroactivity proceedings that was handed down late last week.  (I can blame OJ and Plaxico for distracting me from more sober and arguably more important issues.)  The thoughtful panel decision in US v. Rhodes, No. 08-2111 (10th Cir. Dec. 5, 2008) (available here), cannot be easily summarized, but here are some key sections:

Although the parties and district court agreed that § 3582(c)(2) afforded the district court authority to modify Rhodes’ term of imprisonment, the parties and district court disagreed as to the extent of that authority. In particular, the government and district court concluded, over Rhodes’ objection, that the district court’s authority was circumscribed by § 1B1.10 of the Sentencing Guidelines.... Rhodes argues that, “because a hearing pursuant to § 3582(c)(2) is a new sentencing hearing, Bookeris applicable and the guidelines – including § 1B1.10 – must be considered advisory.”...

The remedial portion of Booker resolved the Sixth Amendment issue by excising § 3553(b)(1), which mandated that district courts, in conducting original sentencing proceedings, impose within-Guidelines sentences.  Importantly, however, Booker made no alteration to § 3582(c)(2), which, as noted, provides the statutory basis for sentence modification proceedings.... [T]he Sixth Amendment concerns that gave rise to the Booker decision will not be replicated in sentence modification proceedings.  Given the narrow scope of sentence modification proceedings, there is no concern that a district court in such a proceeding will make factual findings that in turn will raise a defendant’s sentence beyond the level justified by “the facts established by a plea of guilty or a jury verdict . . . .” Booker, 543 U.S. at 244.  Indeed, a district court in a sentence modification proceeding is authorized only to “reduce the [originally imposed] term of imprisonment,” 18 U.S.C. § 3582(c)(2), not to increase it.  As a result, we conclude that Booker simply has no bearing on sentencing modification proceedings conducted under § 3582(c)(2).

The Tenth Circuit panel in Rhodes recognizes that its holding is in conflict with the Ninth Circuit decision on this issue in the Hicks case:

The problem with the Hicks decision, in our view, is that it failed to consider that, as outlined above, sentence modification proceedings have a different statutory basis than original sentencing proceedings.  As a result, the Ninth Circuit erroneously concluded that the remedial portion of the Booker decision, which rendered the guidelines effectively advisory for purposes of original sentencing proceedings, applied to § 3582(c)(2) proceedings as well.

Ah, the sweet smell of a clean circuit split...

ACLU makes argument for right to counsel at crack retroactivity proceeding

Yesterday, I received a press release from the ACLU noting the filing of a notable brief in the Fifth Circuit.  Here are the basics:

The American Civil Liberties Union today filed its opening brief before the U.S. Fifth Circuit Court of Appeals in an effort to preserve the constitutional right to counsel for those seeking resentencing based on the recent reduction to the federal sentencing guideline range for crack-cocaine offenses.

“When an individual’s freedom hangs in the balance, fundamental fairness and the most basic of our constitutional protections demand that the right to counsel be honored,” said Adam Wolf, a staff attorney with the ACLU Drug Law Reform Project.  “Those unfairly sentenced under the initial, now infamous crack-cocaine guidelines must not face further injustice through the denial of necessary and deserved legal representation.”...

The ACLU’s brief argues that the denial of such a resentencing motion -- when new facts may be introduced that significantly impact the length of incarceration -- without granting the defendant access to legal counsel or an opportunity to review and respond to new evidence violates the Sixth Amendment’s right to counsel and the Fifth Amendment’s Due Process Clause, respectively....

The case, U.S. v. Ross, is on appeal from the U.S. District Court for the Northern District of Texas.  The ACLU’s brief may be found online at this link.

Ohio's experience implementing new crack guideline retroactivity

My local paper this morning had this effective little article about the implementation of the new reduced crack federal sentencing guidelines in the Southern District of Ohio.  Here are some particulars:

The federal probation office has determined that 256 crack-cocaine dealers in the Southern District of Ohio are probably eligible for early release from prison under a change in federal sentencing guidelines.... "That number is pretty close to being reliable. … We looked at well over 3,000 cases," said Pat Crowley, chief U.S. probation officer for the district.

The federal public defender's office had estimated that 439 inmates might be eligible. Federal prosecutors plan to object to early release in about 80 cases but agree with the probation office's assessment of the others, said William Hunt, first assistant U.S. attorney for the southern district....

The three agencies -- probation, public defender and prosecutor -- together reviewed 464 inmate files; in 80 percent of the cases, they agreed on whether an inmate was eligible and, if so, for how much of a reduction, Crowley said.

That bodes well for the inmates when they go before judges, said Steven Nolder, federal public defender for the southern district. The average sentence reduction is about 28 months, "which is right on target with the national average," Nolder said.

Hunt said the U.S. Department of Justice was not in favor of the guideline changes. But now that they are in place, he said, the department is objecting to early release for only the worst offenders.

Some related posts:

• Effective review of implementation of crack retroactivity
• Latest USSC data on crack retroactivity
• Catching up with beneficiaries of crack retroactivity
• New crack guidelines means Willie Mays Aikens gets to go home
• FSR issue focused on crack retroactivity now on-line
• The new USSC crack guidelines ... one year later

The new USSC crack guidelines ... one year later

Maryland's legal newspaper today has this effective article, headlined "Crack cocaine sentences, one year later."  The piece reminds us that the US Sentencing Commission's new crack guidelines have now been in place for a full year, and it also provides a terrific look at how the retroactive application of these new guidelines has played out in one jurisdiction.

Some related posts:

• Effective review of implementation of crack retroactivity
• Latest USSC data on crack retroactivity
• Catching up with beneficiaries of crack retroactivity
• New crack guidelines means Willie Mays Aikens gets to go home
• FSR issue focused on crack retroactivity now on-line