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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  Merriam said the crack re-sentencing guideline was superseded by another sentencing guideline that applied to defendants who had committed two prior crimes.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 at 09:01 AM | Permalink


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The writer of this article misrepresented a number of my statements to him (which were actually made only on background, but that's a different problem).

One matter that particularly needs clarifying is the eligibility of defendants who, at the time of their original sentencings, were subject to the provisions of USSG 4B1.1, the so-called "career offender" guideline.

It is my belief that many of these defendants are eligible for reconsideration of their sentences under the new law. The issue is extremely complex, and there are a number of subsets of defendants within this group.

Currently, the main battle in the Second Circuit relates to those defendants who were found to be technically eligible for "career offender" status under 4B1.1 by virtue of their prior convictions, but as to whom the sentencing court found that the sentence dictated by that provision was inappropriate. Under the Second Circuit case of US v. Mishoe and USSG 4A1.3, a sentencing court could depart downward in such cases to reflect a determination that the career offender guideline overstated the true nature of the defendant's criminal history.

In a number of these cases (and in some cases in which the reduction from the career offender range was taken under 5K1.1 or another departure provision), the sentencing court, when all was said and done, imposed a sentence within the range dictated by USSG 2D1.1. In those cases, the guidelines range that was actually applied -- that is, the range dictated by 2D1.1 -- has now been reduced. Accordingly, these defendants should be eligible for resentencing at the new, reduced offense level applicable under 2D1.1.

The government, some probation offices, and some courts have argued that these defendants are not eligible for resentencing because the post-departure range is not the "applicable" range under the language of the guidelines application notes. To be honest, I have not yet figured out the logic behind a position that claims the guideline range that was indisputably "applied" is somehow not the "applicable range." Some courts agree with this illogical position, but some don't. The 11th Circuit, in US v. Moore, and a number of District Courts have (correctly) concluded that where the final sentence was clearly based on the range dictated by 2D1.1, the defendant is eligible for resentencing, even if the defendant had also been found to be technically eligible for career offender status.

There are good arguments in support of resentencing for all defendants whose sentencing guidelines depended in any part on the crack cocaine quantity calculations embodied in USSG 2D1.1. Most Circuit courts -- including the Second Circuit -- have not yet ruled definitively on the question of whether these defendants are eligible for resentencing. The arguments need to be made, and the issues need to be litigated all the way through the court system.

Posted by: Sarah Merriam | Jan 18, 2009 12:01:00 AM

I still don't understand! If an inmate is consider a career criminal, will he/she qualify for resentencing or not? I am a teacher & a wife of an inmate

Posted by: Monia | Jun 1, 2009 9:49:26 AM

how much time gets taken off say a person looking at a federal 5 year manditory sentencne 4 crack after the new crack law is past.

Posted by: oscar the grouch | Nov 22, 2009 11:44:25 PM

in other words the new crack amendment does to help inamtes sentenced as career criminal.

Posted by: chalina | Dec 1, 2009 1:42:25 PM

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