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June 10, 2014

DOJ advocates for "limited retroactivity of the pending drug guideline amendment"

As detailed in this prior post, today the US Sentencing Commission is conducting a public hearing to gather testimony from invited witnesses concerning whether the Commission should designate as retroactive its new proposed guideline that reduces most drug sentences across the board.  And though that hearing is on-going, the hearing agenda available here now has links to most of the witnesses' submitted written testimony, including the position advocated by the Department of Justice.  

As detailed in this official DOJ press release and this written testimony via US Attorney Sally Yates, the Justice Department is urging the Commission to make the new reduced drug guidelines retroactive for some, but not all, prisoners now serving sentences under the old drug guidelines.  Here are the basics of the compromise advocated by DOJ via its submitted testimony:

After extensive discussions and consideration of the various policy interests at stake in this matter – including public safety, individual justice for offenders, and public trust and confidence in the federal criminal justice system – we support limited retroactivity of the pending drug guideline amendment. As I will discuss further, we think such an approach strikes the right balance of policy interests and can be rigorously and effectively implemented across the federal criminal justice system within existing resource constraints....

Assessing whether the amendment should be applied retroactively requires balancing several factors.  The primary factor driving our position to support retroactive application of the amendment, albeit limited retroactivity, is that the federal drug sentencing structure in place before the amendment resulted in unnecessarily long sentences for some offenders.  While we believe finality in sentencing should remain the general rule, and with public safety our foremost goal, we also recognize that the sentences imposed for some drug defendants under the current sentencing guidelines are longer than necessary, and this creates a negative impact upon both the public’s confidence in the criminal justice system and our prison resources....

Because of public safety concerns that arise from the release of dangerous drug offenders and from the diversion of resources necessary to process over 50,000 inmates, we believe retroactivity of the drug amendment should be limited to lower level, nonviolent drug offenders without significant criminal histories. Limited retroactivity will ensure that release decisions for eligible offenders are fully considered on a case-by-case basis as required, that sufficient supervision and monitoring of released offenders will be accomplished by probation officers, and that the public safety risks to the community are minimized. Release dates should not be pushed up for those offenders who pose a significant danger to the community; indeed, we believe certain dangerous offenders should be categorically prohibited from receiving the benefits of retroactivity....

Balancing all of these factors, the Department supports limited retroactive application of the 2014 drug guideline amendment. We urge the Commission to act consistently with public safety and limit the reach of retroactive application of the amendment only to those offenders who do not pose a significant public safety risk. The Commission has the authority to direct limited retroactivity under both 18 U.S.C. § 994(u) and Dillon, which provide authority to the Commission to prescribe the “circumstances” under which an amended guideline is applied retroactively. We believe the Commission should limit retroactive application to offenders in Criminal History Categories I and II who did not receive: (1) a mandatory minimum sentence for a firearms offense pursuant to 18 U.S.C. § 924(c); (2) an enhancement for possession of a dangerous weapon pursuant to §2D1.1(b)(1); (3) an enhancement for using, threatening, or directing the use of violence pursuant to §2D1.1(b)(2); (4) an enhancement for playing an aggravating role in the offense pursuant to §3B1.1; or (5) an enhancement for obstruction of justice or attempted obstruction of justice pursuant to §3C1.1.

With these limitations, all of which should have been determined in prior court action and should be documented in the court file in most cases, courts will be able to determine eligibility for retroactivity based solely on the existing record and without the need for transporting a defendant to court or holding any extensive fact finding. Retroactivity would be available to a class of non-violent offenders who have limited criminal history, did not possess or use a weapon, and thus will apply only to the category of drug offender who warrants a less severe sentence and who also poses the least risk of reoffending. While the factors we suggest are not a perfect proxy for dangerousness, they are a reasonable proxy based on the Commission’s own research, and identifying them will not require new hearings.

Though I suspect the intriguing middle-ground position embraced here by DOJ will disappoint the usual suspects advocating fully against or fully for retroactivity, I view this DOJ proposal to be both politically and practically astute. In part because SO very many current federal prisoners may be eligible for a sentence reduction based on the new guidelines, I think it make sense (and is consistent with congressional policies and goals) for any retroactivity rule to seek to bring some equities into the application of the new law in an effort to ensure the most deserving of previously sentenced defendants get the benefit of the new guidelines. The DOJ position here seems thoughtfully designed to try to achieve that balance.

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Who was it that got 55 years for selling a couple of ounces of pot while carrying a gun? That always seemed like the poster boy case against a "don't tread on me" government, and yet by this compromise, if I read it right, he would be disqualified. True or not?

Posted by: George` | Jun 10, 2014 2:22:50 PM

Found it in a 2006 host post here.

Tenth Circuit affirms 55-year mandatory minimum sentence in Angelos

Posted by: George` | Jun 10, 2014 2:33:51 PM

Nice try George, he did not have A gun, but "a number of them"...from your own link: "In addition, the government's evidence established that Angelos possessed and used a number of firearms, some stolen, to facilitate his drug-dealing activities." This offender is exactly the kind of defendant Congress, the Department of Justice or most Americans would not want released early!

Posted by: Kelly | Jun 10, 2014 3:29:51 PM

I wonder where DOJ is going to find the resources to process all of these petitions for retroactive application? Especially given that DOJ is also detailing AUSAs to sift through thousands of clemency petitions. Combined with the fact that DOJ has been under a hiring freeze for years (until recently), I can't help but wonder if anybody is going to be available to actually prosecute crime. Additionally, I would think the already overburdened judiciary is going to be further burdened by all of these petitions (many of which will be frivolous). That is especially true in some districts where senior judges (some in their late 80s) are still carrying an active load due to unfilled vacancies. I think the courts are still trying to get caught up on all of the petitions from 2010.

Posted by: Anon | Jun 10, 2014 4:54:47 PM

I understand that you would want this law not to be applicable to "violent" offenders. I am quite sure the DOJ knows the mere presence of a gun can get one convicted with a 924(c) and labeled a violent offender.
Doesn't matter the type of gun, what room the gun was in or even if the "offender" was in the dwelling with gun.
Until the definition of "violent" offender is changed to
reflect the true definition -
(Using or involving the use of physical force to cause harm or damage to someone or something : showing violence.) You will still isolate and leave many incarcerated unjustly.
For instance an offender arrives at his home to find it being searched. Gun in house with drugs;offender was not in home there was no aggression but offender now serves a mandatory minimum sentence and labeled violent.
If violent offender was truly for those who committed violence I may feel differently.
Your view would be greatly appreciated

Posted by: Cheryl | Jun 10, 2014 10:04:57 PM

Kelly, what do you think of this? I think it stinks.

 Angelos contends the district court erred in refusing to admit contemporaneous law enforcement reports of the first two controlled purchases.   Although Angelos was charged with and convicted of possessing a firearm during those first two transactions, Angelos asserts that the contemporaneous law enforcement reports of those two transactions contained no mention of a firearm and thus were relevant and admissible.   We review a district court's evidentiary rulings for abuse of discretion.  United States v. Montague, 421 F.3d 1099, 1101 (10th Cir.2005).   Under that standard, we will reverse “only for a clearly erroneous finding of fact or an erroneous conclusion of law or ․ a clear error in judgment.”  Id. at 1102 (internal quotation marks omitted).

 At trial, the law enforcement officer who drafted the contemporaneous reports, Sergeant Mazuran, testified on direct examination that, immediately following the first two transactions, the CI reported observing Angelos in possession of a gun (the CI likewise testified to the same thing).   On cross-examination by Angelos's counsel, Mazuran admitted that he failed to include this information in the contemporaneous reports he prepared.

- See more [opinion] at: http://caselaw.findlaw.com/us-10th-circuit/1090676.html

Let's suppose Angelos knew the CI was a snitch. And let's supposed he took his gun and no drugs to meet the CI. Let's suppose an argument ensued and Angleos shot and killed the snitch. Would he get less time?

That is the point. While the opinion claims he had guns and the government proved a connection with dealing and having guns, the government never proved any violence. So he was sentenced for ASSumptions. A 55 year sentence for 18 U.S.C. § 924(c) conviction in conjunction with a crime of violence would make more sense. We don't blame a liquor store clerk for having a gun handy. So if congress doesn't like violence over pot, leave it to the states' laws.

Posted by: George | Jun 10, 2014 10:10:55 PM

Crime and Consequences has a link to a recent story regarding Dorsey v. United States. Mr. Dorsey got his early release courtesy of SCOTUS, and he quickly started selling drugs again. He is now on his way back to federal prison. Shock!

Posted by: Zachary B. | Jun 10, 2014 11:50:32 PM

I think to restrict drug offenders to cat 1 or 2 is a crock. Federal drug sentences are way over done and everyone knows that. Drug offenders accumulate points, no doubt.

When off drugs they contribute to the GDP.

The DOJ is talking like they have a paper @sshole. Instead of 50k being resentenced, they will be lucky to push out, 7k early. Basically they just warehouse offenders, the programs from yesterday are gone, at least thats what I hear.

The DOJ, justvwants to 4 greenheads the nbr of cases before these ageing 80 yr old judges, that have trouble making it to the bathroom on time. Need to force out anyone over age 69. They have been in long enough, never xan get any thru put with these old gesures on the bench. End up like Jack Camp in some form or another. Same with congress.

I guess I have beat this horse to death. Anyone out there listening, yawn, .

Posted by: Midwest Guy | Jun 11, 2014 12:04:25 AM

Ok, why cut the mandTory minimums in half. Is this targeted towards crack offenders.

Obama needs to get some balls and pardon them himself.

Reason I say this is meth cSes are really hammered. The conversion table has psuedo 5 times higher than meth. Then the FSA tacked on 2 levels for running a drug house and extea for iodine and red phosphorus. What the hey, it all is used to make crank. These guys get plenty long sentences with just psuedo as gross as it is.

Then if some used force or basically got extra mouthy, they 2 more levels. Ausa cannot be trusted to use their judgement. They all go for the max sentence, at least in our district.

Meth is to whites as crack is to blacks. So lets get some cuts going for them.

Posted by: Midwest Guy | Jun 11, 2014 12:20:43 AM

I don't understand your point George. Are you saying that because pot is "pseudo-legal" now, that it's ok that he had a weapon similar to a liquor store clerk? People are punished for weapons in connection with drug operations not only for the use of a weapon, but for the potential of the use of the weapon. I think any normal person would agree that if you are dealing drugs, and you have a weapon on you, the potential of violence is greater than if you are dealing drugs without one. Before you say, "punishing for potential is wrong," drunk drivers are punished because of their potential to hurt innocent people. We can all think of examples where innocent people are hurt because a drug dealer has a weapon in the course of selling his/her wares. This even applies to "pseudo-legal" drugs like pot. And by the way, when Angelos was convicted, pot was not "pseduo-legal" anywhere. I agree with keeping violent offenders, or offenders who do their business in a manner that could lead to violence, off the streets.

Posted by: Kelly | Jun 11, 2014 6:59:42 AM

Dorsey actually carries no weight as far as recidivism. The Ussc report shows that the crack offenders let out early, were just slightly less than those. Who done there full time.

So if doing the extra time doesnt matter, why do it. I forgot, the feds have a ton of employees of the federal gravy train with paychecks and benefits. Hmm.

Posted by: Midwest Guy | Jun 11, 2014 8:44:17 AM

Kelly, taking your argument to its logical conclusion reveals its absurdity. First time dui drivers should not get 55 years because other drunk drivers have killed. Even first time drunk drivers that have killed don't get 55 years.

Posted by: George | Jun 11, 2014 10:50:28 AM

I was not comparing first time arms toting drug dealers (and it wasn't his first offense) with a first time DUI, I was simply fending off your next argument. If you don't like the laws, then get elected to Congress and change the current laws. The will of the people, through our representatives have stated that gun toting drug dealers deserve long sentences, and I am ok with that.

Posted by: Kelly | Jun 11, 2014 12:42:29 PM

My husband (and I) are 17+ years into a 30 yr. sentence (26 @ 85%)for conspiracy to smuggle a large quantity of cocaine. He could have killed a couple people or been a pedophile and would have been out years ago. I understand them not making it Car Blanche retro and releasing the 100's of thousands of inmates at one time. HOWEVER. START the process, release the lowest levels first if you must and till you get to the higher levels would be years because the BOP does not move very quickly even after the federal government finally does something. With 9+ yrs left to do, we know that although he is 64, and in poor health there is not a snowball chance in hell that we could win any clemency, passionate release, etc. SO YES, make it retro but start the process at the lowest level that EVERYONE agrees on, while arguing over the higher levels. Till they get thru those that everyone agrees upon will still take years. JUST DO SOMETHING
A frustrated BOP Inmates wife

Posted by: Erica Werner-Strube | Jun 11, 2014 4:07:09 PM


"I was not comparing first time arms toting drug dealers (and it wasn't his first offense) with a first time DUI, I was simply fending off your next argument."

Nice try, but you did indeed make the comparison in terms of "potential wrong." Maybe I missed it, but I also think this was his first relevant offense.

"If you don't like the laws, then get elected to Congress and change the current laws."

Does this mean you think only members of Congress can debate the laws? Does it mean debate is not part of the political process? I wonder then how the Bill of Rights ever passed.

"The will of the people, through our representatives have stated that gun toting drug dealers deserve long sentences, and I am ok with that."

Obviously you are ok with that. And the time is right for debating it. Do you think 10 or 20 years is a long sentence, or does it have to be 55 years? See, you've carefully avoided any proportionally debate and concentrated on straw men instead. I'm ok with that because I'm a pyromaniac when it comes to straw.

Posted by: George | Jun 11, 2014 8:02:15 PM

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