Monday, January 26, 2009

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).

January 26, 2009 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (3) | TrackBack

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.

January 26, 2009 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (0) | TrackBack

Friday, January 23, 2009

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.

January 23, 2009 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (2) | TrackBack

Thursday, January 22, 2009

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.

January 22, 2009 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (0) | TrackBack

Sunday, January 18, 2009

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."...

January 18, 2009 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (0) | TrackBack

Saturday, January 17, 2009

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.”

January 17, 2009 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (4) | TrackBack

Tuesday, January 13, 2009

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:

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.

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.

January 13, 2009 in Implementing retroactively new USSC crack guidelines, Sex Offender Sentencing | Permalink | Comments (0) | TrackBack

Wednesday, January 07, 2009

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.

January 7, 2009 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (1) | TrackBack

Tuesday, January 06, 2009

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.

January 6, 2009 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (1) | TrackBack

Thursday, January 01, 2009

"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.

January 1, 2009 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (0) | TrackBack

Wednesday, December 10, 2008

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...

December 10, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (0) | TrackBack

Saturday, November 22, 2008

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.

November 22, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (1) | TrackBack

Sunday, November 16, 2008

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:

November 16, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (0) | TrackBack

Monday, November 03, 2008

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:

November 3, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (0) | TrackBack

Thursday, October 30, 2008

Latest USSC data on crack retroactivity

The US Sentencing Commission has available here updated data on the retroactive application of its revised crack sentencing guidelines on its website.  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 report represents those cases considered by the courts through September 30, 2008 and for which data was received, coded, and edited by the Commission as of October 16, 2008.

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

October 30, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (2) | TrackBack

Friday, September 12, 2008

Eleventh Circuit faults district judge for failing to explain denial of crack reduction motion

A helpful reader altered me to a decision from the Eleventh Circuit which, though unpublished, is a significant story in the on-going effort to implement retroactively the new federal crack guidelines.  In US v. Johnson, No. 08-11415 (11th Cir. Sept. 12, 2008) (available here), the panel vacates and remands for further consideration when the district court failed to explain its denial of a sentence reduction.  Here is how the opinion starts and ends:

Sean Johnson, a federal prisoner convicted of a crack cocaine offense, appeals the district court’s denial of his 18 U.S.C. § 3582(c)(2) motion for reduction of sentence based on an amendment to the Sentencing Guidelines that lowered the base offense levels applicable to crack cocaine.  The Government did not file a response to Johnson’s motion in the district court, and the district court’s order denying Johnson’s motion stated that it had “carefully reviewed said Motion and the entire court file” and was “otherwise fully advised in the premises.”  The district court did not otherwise explain its ruling.  Johnson asserts the district court abused its discretion because the basis for the denial cannot be clearly discerned, thus, effective appellate review is not possible....

The district court’s order denying Johnson’s motion stated that it had “carefully reviewed said Motion and the entire court file” and was “otherwise fully advised in the premises.”  The district court did not otherwise explain its ruling.  Accordingly, the record does not demonstrate the district court took the pertinent factors into account in denying Johnson’s motion.  Accordingly, we vacate the district court’s order denying Johnson’s motion for reduction of sentence and remand for further consideration and explanation.

September 12, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (0) | TrackBack

Thursday, September 11, 2008

Important and impressive Fifth Circuit ruling concerning crack retroactivity

A helpful reader alerted me to an important and impressive opinion concerning crack retroactivity issues from the Fifth Circuit, US v. Robinson, No. 08-10424 (5th Cir. Sept. 10, 2008) (available here).  Here is the reader's effective summary:

This opinion is by the Fifth Circuit regarding the right to an attorney in a crack retroactive amendment hearing. The defendant had been sentenced for a crack offense over a decade ago and applied for a reduction of his sentence under the retroactive amendment. In doing so, he also requested an attorney to represent him.  The government responded with a complex, 25-page sentencing memorandum.  The government contended, among other things, that the defendant was not entitled to an attorney and that he should receive no greater than a five-month reduction -- he could have received up to a 40-month reduction.  The next day, the district court issued a short order granting the defendant a five-month sentence reduction.  The defendant then appealed and again asked for an attorney. The sole question before this panel was whether the defendant should be appointed counsel to represent him on appeal. The court answers that question in the affirmative. In reaching that result, the court covers a lot of interesting ground.

September 11, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (2) | TrackBack

Friday, September 05, 2008

Major Eleventh Circuit ruling on reach of crack retroactivity

The Eleventh Circuit today in US v. Moore, No. 08-11230 (11th Cir. Sept. 5, 2008) (available here), has the first major circuit ruling about the reach of the retroactive crack guidelines.  Here is how the decision starts:

In this consolidated appeal, Gary Moore, Ralph Edward Wester, Theodora Lawton, Clarence Collins, and Keith Maurice McFadden (“defendants”) appeal separate district court decisions denying their motions for reduced sentences under 18 U.S.C. § 3582(c)(2). The defendants’ motions were all based on Amendment 706 to the Sentencing Guidelines, which, together with Amendment 713, retroactively reduced the base offense levels applicable to crack cocaine offenses.  The district courts denied their motions on the ground that, because the defendants were sentenced as career offenders under U.S.S.G. § 4B1.1, Amendment 706 did not have the effect of lowering their applicable guideline ranges. We affirm.

September 5, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (4) | TrackBack

Friday, August 22, 2008

Big crack arguments before Eleventh Circuit

Thanks to law.com, we can now all read this effective article from the Fulton County Daily Report headlined "Crack Resentencing Controversy Comes Before 11th Circuit."  Here is how the piece starts:

Today, two of the most controversial issues in sentencing law -- the length of sentences for crack cocaine offenders and judges' ability to go outside the federal sentencing guidelines -- will intersect in arguments at a federal appeals court panel sitting in Atlanta.

The five cases from the Southern District of Florida, consolidated for oral argument at the 11th Circuit, have the potential to affect many other cases throughout Florida, Georgia and Alabama. The appellate chief at the U.S. Attorney's Office in Atlanta, Amy L. Weil, said she'd seen about a dozen motions by defendants in the Northern District of Georgia alone that raise the same issue.

In each case before the court today the defendant was convicted of a federal crack cocaine offense and sentenced before more lenient crack cocaine sentencing guidelines went into effect in November.  Each is trying to get a new sentence based on the change in the guidelines but has been stymied because prosecutors argue they were sentenced as career offenders.

August 22, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (2) | TrackBack

Saturday, August 16, 2008

Effective review of implementation of crack retroactivity

This local article, headlined "Virginia leads in crack sentence reductions," provides a terrific review of some of the latest realities in the retroactive application of the new federal crack guidelines.  Here are some excerpts from the article:

Virginia leads the nation in the number of prisoners who've had sentences reduced under new federal sentencing guidelines for crack cocaine, U.S. Sentencing Commission numbers show.

Federal judges in Virginia have lowered the sentences of at least 825 prisoners since the new rules took effect March 3 — with the average prisoner getting more than two years cut from a sentence, according to a recent report from the commission.  Judges have granted sentence reductions to 65 percent of the 1,271 federal prisoners in Virginia whose applications were acted upon by July 22.  The numbers don't show how many have been released from prison....

Eastern Virginia — where crack-cocaine arrests were numerous throughout the 1990s, particularly with an anti-gun initiative called Project Exile and other efforts — is the nationwide region most affected by the new guidelines.... The change applies only to crack convictions in federal courts, not state courts.  Under Virginia's sentencing guidelines, crack offenses are treated equally with those for powdered cocaine.

Each case, typically filed by a defense attorney or the defendant, is looked at by prosecutors before judges make a ruling on a reduction.  Before the new guidelines took effect, there was a concern that the crack-sentencing reductions would take too much time from prosecutors' other cases.  That was a big reason the Bush administration opposed applying the new guidelines retroactively to people in prison.

But Deanna Warren, a spokeswoman with the U.S. attorney's Norfolk office, said it hadn't been a problem.  The work is divvied out to prosecutors on a rotating basis. Judges, too, she said, have efficiently pushed cases through. "I think our system has worked," she said. "It's been very smooth, once we got the system down. The court has done a great job. Everybody has done their fair share."...

The average successful applicant in the Eastern District has seen prison time reduced by 29 months, or nearly 2 1/2 years.  That's a 18 percent cut from the average 13-year sentence.

So it seems that the "sky-will-fall" chicken-little-type concerns, which were expressed by AG Mukasey and other DOJ folks in an effort to prevent the new crack guidelines from being retroactive, were overblown.  I am not surprised, and I am pleased to see prosecutors now admitting that they have been able to do better backward-looking justice without being too concerned with how much time retroactive justice is taking away from future prosecutions.

Some recent related posts:

August 16, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (7) | TrackBack