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June 13, 2021

Borden claims and the potential for 3582(c)(1)(a) motions to enable retroactivity

I asked a few days ago, in the wake of the Supreme Court's ruling in Borden v. US, No. 19–5410 (S. Ct. June 10, 2021) (available here), limiting applicable ACCA predicates, "How many federal prisoners might now be serving illegal sentences after Borden?".   After a little reflection and added research, I have come to suspect that maybe only a few hundred federal prisoners are now serving ACCA sentences based on a problematic reckless predicate, though surely a larger number may seek relief in federal courts.  So, after flagging the issue of how many federal prisoners might now be serving illegal sentences after Borden, in this post I want to discuss a bit  how current federal prisoners serving ACCA sentences might seek relief.

Notably, some of this ground has been plowed in the wake of the Supreme Court's 2015 ruling in Johnson finding ACCA's residual clause unconstitutionally vague.  An intricate federal habeas jurisprudence has followed as ACCA prisoners looked to bring their Johnson claims into federal court through 2255 and 2241 motions. See generally Prof Leah Litman's writings here and here and here and here and here.

Justice Kavanaugh is clearly concerned about another round of this litigation the aftermath of Borden, as the last footnote in his dissent frets about "the collateral review petitions that will likely inundate courts in the circuits that [had held] ACCA covers reckless offenses."  In that footnote, Justice Kavanaugh seems eager to note that prisoners may not get relief based on Borden because "many petitions may fall outside §2255’s 1-year statute of limitations."  But Justice Kavanaugh perhaps does not realize that, thanks to the FIRST STEP Act, prisoners with viable Borden claims could now bring 3582(c)(1)(a) motions for sentence reductions based on "extraordinary and compelling" circumstances.

Prof Litman had so much to write about after Johnson because the procedural rules and jurisprudence surrounding 2255 and 2241 motions are extraordinarily intricate and often limiting.  And those procedural rules needed to be sorted through for ACCA-sentenced folks making Johnson claims because there was no other means to directly pursue resentencing in court.  But, thank to the provision of the FIRST STEP Act allowing federal courts to directly reduce sentence without awaiting a motion by the Bureau of Prisons, prisoners now have another distinct means to seek relief through a 3582(c)(1)(a) motion for a sentence reduction.

Critically, because 3582(c)(1)(a) motions have only a minor "exhaustion" procedural requirement, prisoners bringing such motions will have an easier time to getting to court to have their claim considered on the substantive merits.  But the substantive merits of a 3582(c)(1)(a) motion will be different than if a Borden claim is pursued via 2255 and 2241 motions.  A judge will have to find that "extraordinary and compelling reasons warrant" a sentence reduction and then consider 3553(a) factors.  Because those with winning Borden claims have been sentenced to an illegal five years or more, I would think they certainly present an "extraordinary and compelling reasons" for a sentence reduction.  How much the sentence should be reduced should be ten determined by consideration of the 3553(a) factors.

In other words, the FIRST STEP Act's procedural change to so-called "compassionate release" motions via 3582(c)(1)(a) now allows for rulings like Borden to be more efficiently given retroactive effect in federal courts.  Yet another lovely reasons to celebrate that Act. 

Prior related posts:

June 13, 2021 at 11:54 PM | Permalink


completely agree, which is why I fear a new USSC. do you really think the new USSC would add changes in law (esp. nonretroactive changes like 924(c) stacking) as an extraorindary and compelling circumstance?

Posted by: afpd | Jun 14, 2021 9:11:37 AM

I think, afpd, a sensible and forward-looking USSC (and even a sensible DOJ) would RATHER have retroactivity done in an equitable way through 3582(c)(1)(a) rather than through 2255. In the Borden setting, for example, a winning 2255 motion means the sentence has to be 10 years or less, but that would not have to be the case for a winning 3582(c)(1)(a) motion. In addition, supervised release can be made the full length of the prison term for a 3582(c)(1)(a) modification, whereas that will not always be true in the 2255 context. But, most critically, litigating 2255 and 2241 procedural issues is just a pain --- and mostly a time/money waste --- for everyone involved when a change in law is makes a sentence suspect.

In other words, having an equitable safety valve for changes in sentence law makes a lot of sense --- though that does not mean the USSC or DOJ will be wise enough to embrace such a doctrine. Still, all that need be said is that a significant change in law can contribute to what constitutes extraordinary and compelling reasons for a sentence reduction under the right circumstances.

Posted by: Doug B. | Jun 14, 2021 2:23:05 PM

I am a retired USPO and current sentencing mitigation specialist. Since the language of USSG 4B1.2 for COV closely mirrors ACCA for COV, I am wondering if Borden will be extended to Career Offender definition. The issues seem similar -- targeting felons for enhance sentences -- although the Career Offender does not contain an increased statutory penalty. However, Career Offender seems much more similar to ACCA than to a misdemeanor domestic violence for 922(g) purposes. I can't see the Supremes saying the reckless mens rea applies to Career Offender, but I would think we should see this issue raised pretty quick.

Posted by: John D Olive | Jun 16, 2021 4:53:07 PM

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