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January 23, 2019

What arguments are being made by defendants on direct appeal seeking to benefit from the FIRST STEP Act's sentencing reforms?

In this post not long after the passage of the FIRST STEP Act, I noted that Congress directly spoke to so-called "pipeline cases" by saying expressly that defendants who have not yet been sentenced, are clearly to get the benefits of the new and lowered mandatory minimums (section 401) and would avoid stacked 924(c) charges (section 403).  But, asks a lawyer who corresponded with me recently, could there still be a way for a defendant who has been sentenced, but whose case is now on direct appeal, to also get the benefit of the FIRST STEP Act's provisions?   

I have seen a recent brief filed in the Third Circuit that argues that the FIRST STEP Act ought to apply to cases on direct appeal given the "long-standing rule" that a sentence is not final until fully reviewed on appeal.  And perhaps other are developing distinct arguments as this important issue arises presumably in dozens, if not hundreds, of cases current on direct appeal around the country.  I welcome links to or copies of filed briefs on this issue; I will add them to this post if helpful.

In addition to seeking information on pipeline litigation, I must note the broader reality that the international norm is to allow past offenders to benefit from ameliorative changes in criminal laws and punishments.  Specifically, a colleague of mine pointed me to third clause of paragraph 1 of Article 15 of the International Covenant on Civil and Political Rights: "If, subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby."  The United States is a party to ICCPR, but it lodged this key reservation: "because U.S. law generally applies to an offender the penalty in force at the time the offence was committed, the United States does not adhere to the third clause of paragraph 1 of article 15."

Prior related post:

January 23, 2019 at 01:17 AM | Permalink


Doug: Can you provide us readers of your blog with the style of the case and appeal number for the Third Circuit case you have referred to in the above post, so that we can follow it on PACER and elsewhere? Thanks for all of your good work here.

Posted by: James Gormley | Jan 23, 2019 11:20:55 AM

US v. Aviles, No. 18-2967

Posted by: Doug B | Jan 24, 2019 9:29:23 PM

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