Thursday, February 02, 2023

Only three weeks now to US Sentencing Commission's first public hearing on its proposed guideline amendments

My long-standard status as a sentencing nerd is surely be debate, but I can make the case again when I admit that I got more than a bit giddy upon seeing this official notice from the US Sentencing Commission announcing its "Public Hearing on Proposed Amendments to the Federal Sentencing Guidelines."  Here are the deets:

Pursuant to Rule 3.2 of the Rules of Practice and Procedure of the United States Sentencing Commission, a public hearing is scheduled for Thursday, February 23 and Friday, February 24, 2023 to commence at 9:00 a.m. (ET) on both days.

The public hearing will be held in the Mecham Conference Center in the Thurgood Marshall Federal Judiciary Building, One Columbus Circle, NE, Washington, DC. The hearing will be streamed live below.

The purpose of the public hearing is for the Commission to receive testimony on proposed amendments to the federal sentencing guidelines related to Compassionate Release, Sexual Abuse of a Ward, and Acquitted Conduct.

Because there are many more issues covered in the USSC's proposed amendments, and because the comment period runs through mid-March, I suspect these scheduled two days of public hearings are just the first of what may be a series of hearings. How exciting.

A few of many prior recent related posts:

February 2, 2023 in Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (3)

Monday, January 30, 2023

If you never tire of acquitted conduct talk, here is a podcast episode for you

41NnUAbdjHLIn this post from the summer, I highlighted the great new podcast created by Doug Passon, a defense attorney and documentary filmmaker, called "Set for Sentencing."  Doug continues to produce a lot of terrific content each week, all posted at this archive.  I am  putting another plug for his efforts because I had the honor of appearing in his the latest episode, "PRESUMED GUILTY: Using Acquitted, Dismissed, and Uncharged Conduct to Increase Sentences." 

Here is how Doug Passon sets up this nearly 90-minute podcast:

In a perfect world, the presumption of innocence is sacrosanct.  If you are found not guilty by a jury, common sense and the constitution dictate that acquitted conduct should not later be used to enhance your sentence on other charges.  But in federal court, it is not only possible, but commonplace to increase punishment based on acquitted, uncharged and dismissed conduct. The good news is, that might be changing soon.

Helping us get set for sentencing, Prof. Doug Berman and Mark Allenbaugh to talk about the proposed amendment to the United States Sentencing Guidelines on acquitted conduct. Prof. Berman is not only a federal sentencing expert, but wrote the Amicus brief for U.S. v. Daytona McClinton, an “acquitted conduct” case currently pending Cert. at the Supreme Court. Of course, we all know Mark Allenbaugh (www.sentencingstats.com) who completes what turns out to be an “all Allenbaugh January”.

Warning: this episode is not for the faint of heart. No, there’s no sex, drugs, or rock n’ roll. There are probably not even that many f-bombs dropped by Doug. It’s just a really, really, really deep dive into the inner machinations of our broken federal sentencing process. So strap in, and let’s get Set for Sentencing!

Prior related posts:

January 30, 2023 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (29)

Monday, January 23, 2023

US Sentencing Commission provides "Public Data Briefing: Proposed 2023 Criminal History Amendment"

Among many notable and consequential proposed amendments to the federal sentencing guidelines, the US Sentencing Commission has noticed a number of proposals connected to criminal history issues.  And today the Commission posted here a "Public Data Presentation for Proposed Criminal History Amendment."  Here is how this release (which includes a video and associated slides) is described on the USSC website:

The Commission is seeking public comment on proposed amendments to the federal sentencing guidelines.  Commission staff prepared a data presentation to inform public comment on a proposed amendment related to criminal history and the Commission’s implementation of 28 U.S.C. § 994(j).  This briefing presents data on following aspects of criminal history to help inform public comment on the three-part proposed amendment:

  • status points;
  • offenders with zero criminal history points; and,
  • simple possession of marijuana offenses.

January 23, 2023 in Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Wednesday, January 18, 2023

En banc Eleventh Circuit limits reach of career offenders under USSG based on plain text of guideline for drug offenses

Last month, as noted in this post, the en banc Eleventh Circuit gave federal drug defendants a big sentencing win by giving a broad reading to the FIRST-STEP-amended mandatory-minimum safety valve provision.  A helpful reader alerted me to the fact that today the en banc Eleventh Circuit issued another ruling that helps some drug defendants at sentencing in US v. Dupree, No. 19-13776 (11th Cir. Jan.18, 2023) (available here).  This matter is another case with a Kisor role shifting guidleine interpretation (background here), and here is how the opinion of the Court begins:

This appeal requires us to consider whether an inchoate offense qualifies as a “controlled substance offense” for purposes of the career offender sentencing enhancement under the United States Sentencing Guidelines. U.S. Sent’g Guidelines Manual § 4B1.2(b) (U.S. Sent’g Comm’n 2018). In this case, the district court sentenced Brandon Dupree as a career offender based partly on his conviction for conspiring to possess with intent to distribute a controlled substance in violation of 21 U.S.C. § 846.  Dupree appealed his sentence, arguing that his § 846 conspiracy conviction could not serve as a predicate for his career offender enhancement because the Guidelines’ definition of “controlled substance offense” omitted conspiracy and other inchoate crimes.

A panel of this Court affirmed Dupree’s sentence, concluding that our decisions in United States v. Weir, 51 F.3d 1031 (11th Cir. 1995), and United States v. Smith, 54 F.3d 690 (11th Cir. 1995), foreclosed his argument.  United States v. Dupree, 849 F. App’x 911 (11th Cir. 2021) (unpublished), reh’g en banc granted, opinion vacated 25 F.4th 1341 (11th Cir. 2022). We granted Dupree’s petition to rehear the case en banc.  After careful consideration, and with the benefit of oral argument, we hold that the definition of “controlled substance offense” in § 4B1.2(b) does not include inchoate offenses.  We therefore vacate Dupree’s sentence and remand to the district court for resentencing.

Here is a choice paragraph from the start of the dissent by Judge Luck:

I respectfully dissent for two reasons.  First, despite what the majority opinion says it is doing, it is not really applying Kisor’s clarification to Stinson.  Under the majority opinion’s approach, the Kisor clarification applies to Stinson the same way a magnifying glass applies to an ant on a sunny day — total annihilation.  The majority opinion is actually applying Kisor to overrule Stinson.  But the Supreme Court didn’t overrule Stinson and we can’t overrule a Supreme Court opinion on our own.  Only the Supreme Court can do that.  Second, even if the majority opinion isn’t overruling Stinson, the Kisor clarification doesn’t apply to Stinson.

January 18, 2023 in Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Tuesday, January 17, 2023

US Supreme Court relists latest cases seeking review of acquitted conduct sentencing

Regular readers surely recall some prior posts about the McClinton case before the US Supreme Court raising issues about the use of acquitted conduct at sentencing.  As detailed before (and linked below), I had the pleasure last year of working with great lawyers at Squire Patton Boggs to file an amicus brief on the acquitted conduct issue in support of petitioner Dayonta McClinton.  (I blogged here about McClinton's case after the Seventh Circuit affirmed his 19-year sentence that was based heavily on the judge's determination that McClinton was to be held responsible for a murder even after a jury had acquitted him of that killing.  As detailed in this SCOTUS docket sheet, a number of notable interest groups have also filed amicus briefs in support of cert in this case.)

After various delays and more delays, the McClinton case (as well as a number of others raising acquitted conduct issues) was finally considered at last Friday's SCOTUS conference.  I was a bit worried when last week's SCOTUS cert grant list did not include the case, but I was hopeful that we would learn today that the McClinton case was relisted and the docket sheet now reflects that reality.  I am pretty sure that all the other acquitted conduct cases considered in the last SCOTUS conference were also relisted.

More often than not, relisting is a precursor to a later denial of cert, perhaps with a dissent or separate statement being authored by one or more Justices giving their take on the Court's decision not to grant review.  But relisting is also sometimes a precursor to a later granting of cert.  So, as I have said before, I am hopeful, thought still more than a bit pessimistic, about the possibility of 2023 being the year for SCOTUS to take up acquitted conduct sentencing. 

A few recent of many, many prior related posts:

UPDATE:  John Elwood at SCOTUSblog has this new post noting the acquitted conduct relists, "Acquitted-conduct sentencing and 'offended observer' standing."

January 17, 2023 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (86)

Thursday, January 12, 2023

US Sentencing Commissions publishes proposed guideline amendments and issues for comment

This afternoon, the (finally) fully loaded US Sentencing Commission held a public meeting in which it discussed and published proposed guideline amendment on a number of topics. This official press release provide this summary (with links from the original):

The United States Sentencing Commission voted today to publish for comment proposed guideline amendments on several topics, including revisions that would implement two significant changes made by the First Step Act of 2018.

The First Step Act authorized defendants for the first time to file a motion for compassionate release, without having the Director of the Bureau of Prisons make a motion. Today’s proposed amendment would add this new procedural option.   The amendment would also revise the circumstances identified by the Commission as “extraordinary and compelling reasons” for purposes of a motion for compassionate release.

“Commission data have indicated that in recent years — over the COVID-19 pandemic and without a Commission quorum — the district courts have granted compassionate release at varying rates.  It is my sincere hope that our work today and in the coming months brings greater clarity to the federal courts and more uniform application of Compassionate Release across the country,” said Judge Carlton W. Reeves, Chair of the Commission.

The First Step Act also expanded “safety valve” eligibility for relief from mandatory minimum penalties to certain offenders with more than one criminal history point.  The Commission proposed changes today that would update §5C1.2 and amend the 2-level reduction in the drug trafficking guideline currently tied to the statutory safety valve.

Consistent with its responsibility to respond to major legislation affecting federal crimes, the Commission also voted to publish a proposed amendment implementing the Bipartisan Safer Communities Act — firearms legislation that passed after the school shooting in Uvalde, Texas.  The Act directed the Commission to increase penalties for certain firearms offenders, particularly straw purchasers. 

The Commission also published a package of amendments relating to the criminal history rules, including reconsideration of “status” points for defendants who commit the instant offense while under another criminal justice sentence, the treatment of defendants with zero criminal history points, and the impact of simple possession of marihuana offenses.

The amendment also presents an alternative to the “categorical approach,” a complex legal test courts use to determine whether a conviction qualifies an offender for enhanced penalties under the guidelines. “I have heard consistently from judges throughout the nation that the categorical approach should be reconsidered. Judges are far too often flummoxed by how to apply the categorical approach.  This is certainly a matter that the Commission will continue to discuss and one that warrants a public hearing,” Judge Reeves said.

The Commission also asked for comment on whether the guidelines adequately address certain sexual abuse offenses, how it should address important circuit court conflicts, and whether the guidelines appropriately account for acquitted conduct, among other matters.

“The Commission received more than 8,000 letters of public comment on our tentative priorities in October,” said Reeves, “and we again look forward to robust comment in response to these proposed amendments.” 

The proposals are subject to a 60-day public comment period running through mid-March.  The Commission will hold public hearings in February and March to receive expert testimony on the amendments proposed at today’s meeting.  The events will stream live on the Commission's website.  A data briefing on today’s proposed criminal history amendments will also be made available in the coming weeks.

Notably, this overview of proposed amendments only provides a partial account of all that sentencing fans should find interesting in the new proposed amendment. For example, the proposals also include a provision to "amend §1B1.3 to add a new subsection (c) providing that acquitted conduct shall not be considered relevant conduct for purposes of determining the guideline range unless the conduct was admitted by the defendant during a guilty plea colloquy or was found by the trier of fact beyond a reasonable doubt to establish, in whole or in part, the instant offense of conviction."

I hope to find timein the coming days and weeks to comment in various ways on these amendments. And I am hopeful that we will see lots of commentary and analysis from lots of sources and perspectives as the new USSC gears up finalize the first set of guideline amendments in nearly 5 years.

January 12, 2023 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3)

Tuesday, January 10, 2023

US Sentencing Commission releases "Weighing the Impact of Simple Possession of Marijuana: Trends and Sentencing in the Federal System"

Cover_mj-possession-2023This morning, the US Sentencing Commission has released this interesting new report titled "Weighing the Impact of Simple Possession of Marijuana: Trends and Sentencing in the Federal System."  This USSC webpage provides this summary and key findings:

The report entitled Weighing the Impact of Simple Possession of Marijuana: Trends and Sentencing in the Federal System updates a 2016 Commission study and examines sentences for simple possession of marijuana offenses in two respects.  Part One of the report assesses trends in federal sentencings for simple possession of marijuana since fiscal year 2014.  The report then describes the demographic characteristics, criminal history, and sentencing outcomes of federal offenders sentenced for marijuana possession in the last five fiscal years and compares them to federal offenders sentenced for possession of other drug types.

Part Two of the report examines how prior sentences for simple possession of marijuana (under both federal and state law) affect criminal history calculations under the federal sentencing guidelines for new federal offenses.  The report identifies how many federal offenders sentenced in fiscal year 2021 — for any crime type — received criminal history points under Chapter Four of the Guidelines Manual for prior marijuana possession sentences.  The report then assesses the impact of such points on those offenders’ criminal history category, one of the two components used to establish the sentencing guideline range.

Key Findings

Federal Sentencings for Simple Possession of Marijuana

  • The number of federal offenders sentenced for simple possession of marijuana is relatively small and has been declining steadily from 2,172 in fiscal year 2014 to only 145 in fiscal year 2021.
  • The overall trends were largely driven by one district, the District of Arizona, which accounted for nearly 80 percent (78.9%) of all federal marijuana possession sentencings since 2014.  As the number of such cases in the District of Arizona declined from a peak of 1,916 in 2014 to just two in fiscal year 2021, the overall federal caseload followed a similar pattern.
  • Federal offenders sentenced for marijuana possession in the last five fiscal years tended to be male (85.5%), Hispanic (70.8%), and non-U.S. citizens (59.8%).  A little over two-thirds (70.1%) were sentenced to prison; the average prison sentence imposed was five months.
  • As of January 2022, no offenders sentenced solely for simple possession of marijuana remained in the custody of the Federal Bureau of Prisons.

Impact of Prior Sentences for Simple Possession of Marijuana

  • In fiscal year 2021, 4,405 federal offenders (8.0%) received criminal history points under the federal sentencing guidelines for prior marijuana possession sentences.  Most of the prior sentences (79.3%) were for less than 60 days in prison, including non-custodial sentences.  Furthermore, ten percent (10.2%) of these 4,405 offenders had no other criminal history points.
  • The criminal history points assigned under the federal sentencing guidelines for prior marijuana possession sentences resulted in a higher criminal history category for 1,765 of the 4,405 offenders (40.1%).
  • Of the 1,765 offenders whose criminal history category was impacted by a prior marijuana possession sentence, most were male (94.2%), U.S. citizens (80.0%), and either Black (41.7%) or Hispanic (40.1%).
  • Nearly all (97.0%) of the prior marijuana possession sentences were for state convictions, some of which were from states that have changed their laws to decriminalize (22.2%) or legalize (18.2%) marijuana possession, states that allow for expungement or sealing of marijuana possession records (19.7%), or some combination thereof.  Prior sentences for marijuana possession from these states resulted in higher criminal history calculations under the federal sentencing guidelines for 695 offenders.

January 10, 2023 in Data on sentencing, Drug Offense Sentencing, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics | Permalink | Comments (33)

Monday, January 09, 2023

Wondering about the impact of AG Garland's new charging and sentencing memos

Remarkably, it has already been almost a month since Attorney General Merrick Garland issued new charging and sentencing policy guidance for Justice Department prosecutors through two memoranda (basics here).  These memos received some press attention (and some blog commentary) when first issued in mid December.  But, somewhat surprisingly, I have not since seen all that much continued commentary or further echoes concerning AG Garland's instructions to federal prosecutors to "promote the equivalent treatment of crack and powder cocaine offenses" and other notable aspects of these notable memos. 

Of course, with the holidays and all, it is surely too early to be expecting to see the full impact or fall out from these DOJ memos.  Still, given that the instructions in these memos impact every federal criminal case in some way, I am continuing to expect these memos to generate notable cases and controversies before too long.  And, while waiting, I have now had the honor and pleasure of working with former ENDY US Attorney Alan Vinegrad to write up a short overview of the memos for coming publication in the February 2023 issue of the Federal Sentencing Reporter.  The draft of that overview is available for download below, and it starts this way:

On December 16, 2022, United States Attorney General Merrick Garland issued long-awaited guidance setting forth the Department of Justice's latest charging, plea and sentencing policies. He did so in the form of two memos: one providing general policies for all criminal cases (the "General Memo"), and a second providing additional policies for drug cases (the "Drug Memo").

These latest DOJ policies are generally consistent in many respects with past policies issued by Attorney General Garland's predecessors, but they break new ground (or revive previously-rescinded policies) in several areas: mandatory minimum statutes, statutory sentencing enhancements, the crack/cocaine sentencing disparity, and pre-trial diversion.  All of these new policies tack in the same direction: ameliorating the harshness of the modern-era federal sentencing regime.

Download Vinegrad and Berman for FSR on new DOJ policies

January 9, 2023 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (5)

Friday, January 06, 2023

Reviewing prosecutions and sentencings two years after January 6 Capitol riots

A number of major papers today provide some major reviews of the prosecution and sentencing of January 6 rioters on the two-year anniversary of the storming of the Capitol.  Here are headlines and links, as well as an except from the story most focused on sentencing outcomes:

From the New York Times, "Two Years Later, Prosecutions of Jan. 6 Rioters Continue to Grow: The Justice Department’s investigation of the Capitol attack, already the largest it has ever conducted, has resulted in 900 arrests, with the potential for scores or hundreds more to come."

From USA Today, "More than 950 people have been charged in Jan. 6 Capitol riot, but investigation 'far from over'"

From the Washington Post, "Review of Jan. 6 cases finds judges give harsh lectures, lighter sentences: Judges have gone below prosecutors’ recommendations three-quarters of time, and below federal sentencing guidelines a little less than 40 percent":

Of more than 460 people charged with felonies, only 69 have been convicted and sentenced so far, mostly for assaulting police or obstructing Congress; all but four have received jail or prison time. The average prison sentence for a felony conviction so far is 33 months, according to a Washington Post database....

About half of the arrests so far have been for misdemeanors, and for those given actual jail time, the average sentence has been 48 days. But most of the misdemeanants have not received any jail time: most have received probation, home detention or halfway house time, or a fine. These defendants are typically rioters who entered the Capitol and didn’t engage with the police, but left a trail of social media posts and photos before, during and after Jan. 6.

If we include those who didn’t receive jail time among the misdemeanor sentences, the average jail time drops to 22 days. The number of defendants being held in jail before trial, or awaiting sentencing, is about 50, according to a list provided by the Justice Department....

For the 25 defendants sentenced so far for assaulting law enforcement, the average sentence has been more than 48 months — in line with the nationwide average for that offense in recent years, according to data from the U.S. Sentencing Commission. Former New York City police officer Thomas Webster received a 10-year term for fighting with an officer and helping breach the outer perimeter. There are still nearly 180 defendants whose assault cases are pending.

The most serious charge for those not accused of assaulting the police has been obstruction of an official proceeding. Only 28 people have been sentenced for obstruction or conspiracy to obstruct the certification of the electoral vote, receiving an average sentence of about 42 months....

The judges appointed by Democratic presidents have imposed jail or prison sentences in 61 percent of their cases, and probation in 18 percent of the cases, while judges appointed by Republican presidents have given jail or prison sentences in 48 percent of their cases, and probation in 34 percent of cases. In the remaining cases, judges have sentenced defendants to home detention or a halfway house, or imposed a fine. Judge Tanya Chutkan, an Obama appointee, has handled 22 sentencings and imposed incarceration in every one, but another Obama appointee, Judge Rudolph Contreras, has handled 16 sentencings and jailed only one defendant.

Judges Dabney Friedrich and Trevor N. McFadden, both Trump appointees, have given probation sentences to about half of their Jan. 6 defendants. McFadden is also the only judge to have acquitted a defendant at trial and the only judge to have imposed only a fine on a defendant.

January 6, 2023 in Celebrity sentencings, Data on sentencing, Federal Sentencing Guidelines, Offense Characteristics, Who Sentences | Permalink | Comments (2)

Tuesday, January 03, 2023

Timely new CRS review of US Sentencing Commission's guideline amendment process and plans

A helpful colleague alerted me to a new Congressional Research Service “Legal Sidebar” which efficiently covers the US Sentencing Commission's history, its amendments process, and some of its stated priorities for 2022-23 guideline amendments.  This five-page report is titled "Back in Action, the U.S. Sentencing Commission to Resolve Circuit Splits on Controlled Substances and Sentencing Reductions," and it starts this way:

In 1984, Congress revolutionized federal sentencing.  That year, Congress established the U.S. Sentencing Commission (the Commission) as an independent agency within the judicial branch and directed it to promulgate the first-ever federal sentencing guidelines.  In 1987, the Commission published the inaugural U.S. Sentencing Guidelines manual (the Guidelines), which serves as the starting point and anchor for every federal sentence imposed across the country. Over 1.9 million defendants have been sentenced under the Guidelines since their inception.

Congress also required the Commission to “review and revise” the Guidelines, which it has done periodically.  Between 2019 and July 2022, however, the Commission lacked a quorum and therefore the ability to propose amendments to the Guidelines. In August 2022, the Senate confirmed a full slate of seven new commissioners, restoring the Commission’s quorum and thus enabling the Commission to initiate its amendments process.  As a part of that process, in November 2022, the Commission published a list of final priorities for analysis and possible action.  According to a timetable fixed in statute, should the Commission study a priority and approve prospective changes to the Guidelines, the Commission will submit the proposed amendments to Congress by May 1, 2023.  Congress then has until November 1, 2023, to affirmatively reject any such amendments, or the amendments will take effect.

This Sidebar addresses one of the Commission’s listed priorities: the resolution of two conflicts among the federal appeals courts involving the Guidelines.  The first conflict relates to whether, for a “controlled substance offense” to trigger the Guidelines’ “career offender” recidivist enhancement, the underlying controlled substance must be prohibited by the federal Controlled Substances Act (CSA) or whether a controlled substance prohibited only under state law can also lead to the career offender enhancement.  The second conflict pertains to whether federal prosecutors may withhold a sentencing reduction from a federal defendant because the defendant raised a pre-trial Fourth Amendment challenge to the government’s evidence.

January 3, 2023 in Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Wednesday, December 28, 2022

Notable ruling on meth sentencing guidelines by a notable federal sentencing judge

A helpful colleague made sure I did not miss a notable little new ruling from federal judge in Mississippi in US v. Robinson, No. 3:21-CR-14-CWR-FKB-2 (S.D. Miss. Dec. 23, 2022) (available here).  The ruling addresses the calculation of the federal sentencing guideline range in meth cases, and here are some excerpts (with lots of cites omitted):

The issue is fairly straightforward. The U.S. Sentencing Guidelines use drug purity as a proxy for a defendant’s culpability....  As a result, the Guidelines make a distinction between “methamphetamine” and “actual methamphetamine.”   All else equal, defendants caught with actual methamphetamine get longer sentences than defendants caught with methamphetamine mixture....

The distinction is significant to Mr. Robinson.  Because he possessed 214.4 grams of especially pure methamphetamine, the Guidelines indicate that he should have a “base offense level” of 32.  In contrast, if Mr. Robinson was deemed to have possessed 214.4 grams of methamphetamine mixture, the Guidelines indicate that his base offense level would be 26....

At the outset, the Court appreciates the parties for pointing to Judge Bennett’s decision in United States v. Nawanna, 321 F. Supp. 3d 943 (N.D. Iowa 2018).  In that case, the United States conceded that there is no empirical basis for the Sentencing Commission’s 10-to-1 weight disparity between actual methamphetamine and methamphetamine mixture. Other courts have found the same....

On review, the undersigned agrees with these colleagues.  The Guidelines use drug purity as a proxy for culpability.  But national experience suggests that is no longer true for methamphetamine.  The DEA data show that most methamphetamine confiscated today is “pure” regardless of whether the defendant is a kingpin or a low-level addict....

Given the on-the-ground reality in methamphetamine cases, the better way to determine culpability is to examine all of the circumstances of the defendant’s case and life -- seeing the defendant as a “whole person,” as the Supreme Court just instructed in Concepcion. 142 S. Ct. at 2395.  There are sentencing enhancements available for leaders, organizers, or managers of criminal enterprises.  If the defendant’s case warrants, those enhancements should be applied.  In the context of methamphetamine, though, purity is no longer probative of the defendant’s culpability.

This ruling is notable on its own terms, but it seemed especially blogworthy because of the opinion's author: US District Judge Carlton W. Reeves. Judge Reeves, as some readers likely know, is the new Chair of the US Sentencing Commission.

December 28, 2022 in Drug Offense Sentencing, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (4)

Tuesday, December 27, 2022

Federal judge sentences Michigan man who plotted to kidnap Gov to 16 years despite feds seeking LWOP ... and thereafter give other leader 235 months

As reported in this NBC News piece, headlined "Man sentenced to 16 years for plotting to kidnap Michigan Gov. Gretchen Whitmer," a high-profile case reached a sentencing outcome this morning in Michigan federal court. Here are some of the notable details:

A federal judge on Tuesday sentenced a man to 16 years in prison for his role in a plot to kidnap Michigan Gov. Gretchen Whitmer — opting against the prosecution's bid for life behind bars.

Adam Fox, 39, was convicted in August of conspiracy to commit kidnapping and to use a weapon of mass destruction to attack Whitmer, who had drawn the ire of far-right groups for her efforts to curb the spread of Covid-19 in 2020. Jurors in April failed to come to verdicts against Fox and co-defendant Barry Croft, forcing a judge to declare a mistrial before a second trial proved decisive.

U.S. District Judge Robert Jonker questioned whether Fox was a true "natural leader" of the plot, worthy of a life sentence.  "I don't think life is needed to achieve the important public deterrent factors," Jonker said in Grand Rapids, explaining the 192-month sentence.

While a terrorism enhancement set up Fox for a possible life term, Jonker said that harshest sentence isn’t automatic and that he had to carefully consider other factors.  Jonker said he leaned heavily on a 2018-19 Northern California case where U.S. District Judge Charles Breyer, brother of retired U.S. Supreme Court Justice Stephen Breyer, sentenced ISIS sympathizer Amer Alhaggagi to 188 months in prison, more than 15 years short of the 33 years sought by prosecutors.

“You have to calibrate, as judges, the overall seriousness of wrongdoing and the overall seriousness of the defendant’s history," Jonker said. “I see nothing in the record ... nothing that makes me think he’s (Fox) a natural leader and nothing that makes me think he’s the kind of person that anybody involved in this group was naturally going to follow.”

Assistant U.S. Attorney Nils Kessler had said Fox was out to spark an all-out war and needed to be put away for life. “They wanted a second Civil War or a revolution,” Kessler told the court on Tuesday.  "They wanted to ruin everything for everybody."  Kessler warned that Fox will still be a dangerous man when he someday walks free. “The problem is this defendant, he’s going to go into jail and probably emerge more radicalized than when he went in and will remain a danger to the public, your honor," the prosecutor said.

The plot was hatched in response to Whitmer's actions during the start of the pandemic in 2020 when she ordered various lockdowns aimed at curbing the spread of Covid. Far-right groups blasted Whitmer, and then-President Donald Trump appeared to back that opposition in an all-caps tweet.

Defense attorney Christopher Gibbons argued on Tuesday that a life sentence would have been too much.  "That overstates the reality of the conduct that has been alleged and that was actually accomplished by Adam Fox in summer of 2020," Gibbons said.

Based on various press reports, I surmise a terrorism enhancement under the federal sentencing guidelines led to a guildeine-recommended sentencing of life, which is turn served as a key basis for federal prosecutors to advocate for an LWOP term. But it seems Judge Jonker concluded that a 16-year prison term would be "sufficient but not greater than necessary" to serve the purposes set forth by Congress in 18 USC 3553(a)(2).

UPDATE:  On Wednesday (Dec. 28), another kidnapping plot leader was sentenced by the same judge as detailed in this Fox News account:

The other co-leader convicted of conspiracy charges in the foiled plot to kidnap Michigan Gov. Gretchen Whitmer in 2020 was sentenced Wednesday to nearly 20 years in prison.

Barry Croft Jr., who prosecutors recommended a life sentence, learned of his punishment a day after key ally Adam Fox was sentenced to 16 years. Croft was sentenced to 19 years and seven months.

Fox, 39, and Croft, 47, were convicted on two counts of conspiracy at a trial in August. Croft also was found guilty of possessing an unregistered explosive.  The conspirators were furious over tough COVID-19 restrictions that Whitmer and officials in other states had put in place during the early months of the pandemic, as well as perceived threats to gun ownership.

Croft, a Delaware trucker, regularly wore a tri-cornered hat common during the American Revolution and had tattoos on his arms symbolizing resistance -- "Expect Us" -- as he traveled to Ohio, Wisconsin and Michigan to meet with like-minded extremists, according to the Associated Press. "Although he may not have had hierarchical control over all the other participants, he coordinated and pushed the implementation of the conspiracy from its inception to its final stages," Assistant U.S. Attorney Nils Kessler said in a court filing....

"The abduction of the governor was only meant to be the beginning of Croft’s reign of terror," Kessler said. "He called for riots, ‘torching’ government officials in their sleep and setting off a ‘domino’ effect of violence across the country."

A key piece of evidence showed Croft, Fox and others traveled to see Whitmer's vacation home in northern Michigan, with undercover agents and informants inside the cabal. At one point, Croft told allies, "I don’t like seeing anybody get killed either. But you don’t make an omelet without breaking a few eggs, you know what I mean?"

Croft's attorney tried to soften his client's role. In a court filing, Joshua Blanchard said the Bear, Delaware, man did not actually have authority over others and often frustrated them because he "just kept talking." Croft was smoking 2 ounces of marijuana per week, Blanchard said. "Simply put, to the extent that the jury determined he was a participant, as they necessarily did, he was a participant to a lesser degree than others," Blanchard insisted.

Two men who pleaded guilty and testified against Fox and Croft received substantial breaks; Ty Garbin is already free after a 2 1/2-year prison term, while Kaleb Franks was given a four-year sentence.

In state court, three men recently were given lengthy sentences for assisting Fox earlier in the summer of 2020. Five more are awaiting trial in Antrim County, where Whitmer’s vacation home is located.

December 27, 2022 in Booker in district courts, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (6)

Some early commentary on notable end-of-year federal criminal justice reform developments

I hope and expect that the new charging and sentencing memos issued by AG Garland (basics here), as well as the failure of the out-going Congress to pass any significant criminal justice reforms, will garner extended attention and analysis in the weeks and months ahead.  Usefully, I have already seen some first-cut accountings from a variety of sources:

From Filter, "The Limits of AG’s Guidelines Against Crack-Powder Sentencing Disparity"

From LISA-Legalinfo, "Blue Christmas for Criminal Justice Reforms"

From MSNBC, "Racist war on drugs is the real winner of Congress’s massive spending bill"

From Reason, "The Failure To Enact Marijuana Banking and Crack Sentencing Reforms Is a Window on Congressional Dysfunction"

From San Diego Union-Tribune, "Creating different punishments for crack and powder cocaine never made sense, unscientific"

Looking forward, the practical impact of AG Garland's charging and sentencing memos, the continued implementation of the FIRST STEP Act, and especially the coming work of the newly, fully-staffed U.S. Sentencing Commission will be topics to watch closely in the weeks and months ahead.  So, I am tentatively hopeful that the lack of much lasting federal criminal justice reform in 2022 is just a precursor to a big 2023 ahead.

December 27, 2022 in Federal Sentencing Guidelines, FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Wednesday, December 21, 2022

Lots of new data and a notable date from the US Sentencing Commission

The US Sentencing Commission yesterday published two new data reports: (1) this updated compassionate release data report and (2) this FY 2022 fourth quarter sentencing data.  There are lots of stories within all these data, though I still see the top stories to be those discussed here before: there are dramatic district variations in compassionate release grant rates and there are still relatively few "within guideline" sentences" being imposed by judges.

Specifically, on compassionate release, the three districts of Georgia show one notable example of variation: the Southern District of Georgia has granted only 8 out of 296 sentence reduction motions for a 2.7% grant rate; the Middle District of Georgia has granted only 4 out of 265 sentence reduction motions for a 1.5% grant rate; but the Northern District of Georgia has granted 80 out of 174 sentence reduction motions for a 46% grant rate.  On original sentencing more generally, this most recent USSC data show that, for all of FY 22, only 42% of all federal sentences have been imposed "Within Guideline Range" (and the number is under 28% for "Drug Trafficking" cases).

For various reasons and in various ways, all these data in some sense reflect the consequences of the US Sentencing Commission having to function without a quorum and being unable to amend any guidelines for nearly five years.  But, of course, we now have a fully loaded Commission, and the Commissions are clearly hard at work on guidelines reforms.  We know that because the Commission has now officially announced that it will have a public meeting on January 12, 2023, and that announcement notes the meeting agenda is to include "Possible Vote to Publish Proposed Guideline Amendments and Issues for Comment."

December 21, 2022 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, FIRST STEP Act and its implementation, Sentences Reconsidered | Permalink | Comments (0)

Sunday, December 04, 2022

Latest issues of FSR providing new advice to a new US Sentencing Commission (and lots more)

M_fsr.2022.35.1.coverI have had the great pleasure this Fall to be working on two issues of the Federal Sentencing Reporter with all sorts of commentaries providing all sorts of advice for the all the new members of the US Sentencing Commission.  The first of these issues, titled "21st Century Advice to the New Commissioners," is now available online here.  This issue includes more than a half-dozen original articles authored by judges, federal prosecutors and defenders, and policy advocates.  Prof Steve Chanenson and I authored this introductory essay, titled "Another (Not Quite) Fresh Start," which has this abstract:

As the famed legal scholar Yogi Berra once observed, “It’s like deja vu all over again.”  Those wise words can describe the U.S. Sentencing Commission.  Once again, we find ourselves with a fresh, full-strength Commission brimming with all the promise and excitement that comes with a new opportunity to reexamine federal sentencing law and practice. That is the good news.  What brought us to this moment, however, is the not-so-good news, which merits a brief trip down an unpleasant memory lane.  This is not the first time that the Commission has lacked a quorum.  This latest and longest episode of Commission paralysis strikes us as particularly disturbing because it may reflect a widespread lack of faith in — or at least a notable dearth of enthusiasm for — the work of the Commission and the guidelines enterprise more generally. Like baseball fans on opening day, we remain hopeful about the future.  The new Commissioners are well-regarded professionals who come to their common task in good faith — bringing their own, varied views.  They face a mix of urgent new challenges and important enduring ones.  We add our voices to those over the decades who hope that the Commissioners will think broadly (including by reexamining long-established assumptions) and act boldly.

This October 2022 issue of FSR also includes a series of materials and articles providing "Perspectives on Recidivism and Long Sentences." And, as suggested above, the December 2022 issue of FSR will have additional commentaries providing additional advice for the new USSC.

December 4, 2022 in Federal Sentencing Guidelines, Recommended reading, Who Sentences | Permalink | Comments (1)

Wednesday, November 30, 2022

Third Circuit panel rules federal fraud guideline enhancements for "loss" do not properly include "intended loss"

I am grateful to a whole bunch of folks who made sure I did not miss the notable ruling by a Third Circuit panel today in US v. Banks, No. 21-5762 (3d Cir. Nov. 30, 2022) (available here).  Banks is yet another case involving another circuit finding notable guideline commentary problematic and inapplicable in the wake of recent Supreme Court administrative law rulings.  Here is how the Banks opinion starts and some key passages within (footnotes omitted):

A jury convicted Frederick Banks of wire fraud, and the District Court sentenced him to 104 months’ imprisonment and three years’ supervised release. On appeal, Banks argues that the District Court erred in three ways, by (1) denying his constitutionally protected right to self-representation, (2) applying the loss enhancement to the fraud guideline in the United States Sentencing Guidelines because there was no “actual loss,” and (3) imposing certain special conditions of supervised release.  We conclude that the loss enhancement in the Guideline’s application notes impermissibly expands the word “loss” to include both intended loss and actual loss. Thus, the District Court erred when it applied the loss enhancement because Banks’s crimes caused no actual loss. We will, therefore, affirm the judgment of the District Court except on the issue of loss enhancement; we will remand this case to the District Court for it to determine loss and to resentence Banks....

Next, we turn to Banks’s argument that the District Court erroneously applied the intended-loss enhancement to his sentence when the victim suffered $0 in actual losses. The application of the intended-loss enhancement hinges on the meaning of the term “loss” as used in Guideline § 2B1.1. Because the United States Sentencing Commission has interpreted “loss” in its commentary, the weight afforded to that commentary may affect the meaning of “loss.”...

Our review of common dictionary definitions of “loss” point to an ordinary meaning of “actual loss.” None of these definitions suggest an ordinary understanding that “loss” means “intended loss.”  To be sure, in context, “loss” could mean pecuniary or non-pecuniary loss and could mean actual or intended loss.55 We need not decide, however, whether one clear meaning of the word “loss” emerges broadly, covering every application of the word.  Rather, we must decide whether, in the context of a sentence enhancement for basic economic offenses, the ordinary meaning of the word “loss” is the loss the victim actually suffered.  We conclude it is.

Because the commentary expands the definition of “loss” by explaining that generally “loss is the greater of actual loss or intended loss,” we accord the commentary no weight. Banks is thus entitled to be resentenced without the 12-point intended-loss enhancement in § 2B1.1. 

November 30, 2022 in Federal Sentencing Guidelines, White-collar sentencing, Who Sentences | Permalink | Comments (0)

Tuesday, November 29, 2022

Sixth Circuit panel debates agency deference for guideline commentary defining images for child porn sentencing

How Appealing and Jonathan Adler at The Volohk Conspirary both posted about a notable new Sixth Circut panel opinion in US v. Phillips, No. 21-5762 (6th Cir. Nov. 28, 2022) (available here).  Here is how the majority opinion, which runs 17 pages, gets started:

When it passed the PROTECT Act in 2003, Congress required the United States Sentencing Commission to vary penalties for child-pornography offenses depending on the number of images involved.  The Commission accordingly implemented that method of calculating penalties in the Sentencing Guidelines.  Addressing what it perceived to be an ambiguity in Congress’s command, the Commission added an application note in the Guidelines commentary instructing courts to equate one video to seventy-five images when calculating the applicable Guidelines sentencing range.

For almost twenty years, courts have relied on this “75:1 Rule” when sentencing defendants convicted of possessing videos containing child pornography.  Recent Supreme Court precedent, however, has clarified when courts can defer to an agency’s interpretation of its regulations (by applying so-called Auer deference).  Defendant-Appellant Trinity Phillips argues that this recent clarification means that a sentencing court can no longer rely on the 75:1 Rule, and that the court erred in relying on it when imposing his sentence.  We disagree and affirm that sentence as imposed by the district court.

Concurring in the judgment only, Judge Larsen authors an 18-page opinion that starts this way:

How is a court to respond when the question before it involves the interpretation of an agency rule?  Over decades, we lower courts developed a habit of deferring reflexively to the agency’s interpretation under Seminole Rock and Auer, rather than first tackling the interpretative question ourselves, to see whether the rule was “genuinely ambiguous.” Kisor v. Wilkie, 139 S. Ct. 2400, 2414 (2019).  Three years ago, the Supreme Court told us to stop.  The Court did not mince words: “[T]he possibility of deference can arise only if a regulation is genuinely ambiguous.  And when we use that term, we mean it — genuinely ambiguous, even after a court has resorted to all the standard tools of interpretation.” Id.  In United States v. Riccardi, this court confirmed that Kisor’s admonition applied to the Sentencing Guidelines too. 989 F.3d 476, 486 (6th Cir. 2021).  These were important decisions.  They reminded us that judges have a duty to interpret the law, even when administrative agencies are involved.  But old habits are hard to break.  Today’s decision is proof.  No fair reading of Kisor and Riccardi would permit us to defer to the Sentencing Commission’s conclusion that the word “image” means 1/75th of every video.  Nevertheless, the majority opinion rolls right through Kisor’s stop sign, reflexively deferring to an agency’s noninterpretation of an unambiguous Sentencing Guideline.  So I concur in the judgment only.

November 29, 2022 in Federal Sentencing Guidelines, Sex Offender Sentencing, Who Sentences | Permalink | Comments (0)

Sunday, November 27, 2022

Has anyone tracked how often district judges recuse from resentencing?

The question in the title of this post in prompted by this interesting recusal order brought to my attention by Howard Bashman (and blogged here at How Appealing).  In the 24-page order, U.S. District Judge Larry Alan Burns explains why he has decided to recuse from two resentencings after Ninth Circuit opinions ruled that two drug offenders had to be given "minor role" reductions under the federal sentencing guidelines.  Here is part of the opinion's concluding section (with a few cites removed):

Where the question embodies the kind of discretion traditionally exercised by a sentencing court — i.e., making findings concerning a defendant’s role in an offense and level of culpability — the judgment is entitled to substantial deference.  Substantial deference is especially appropriate when factual nuances may closely guide the legal decision to be made, or where the legal result depends heavily on an understanding of the significance of case-specific details that have been gained through experience with trials and sentencings.  Buford, 532 U.S. at 64–65.  This is precisely the kind of determination that must be made in resentencing Sandra and Jesus Rodriguez.

The Mandates arrived at the judgment that two practiced drug traffickers, who consciously and intentionally joined plans to import bulk quantities of methamphetamine and heroin into the United States, and who were promised thousands of dollars in payment for their participation, qualify as “minor participants” in the offense of simple drug importation.  My twenty-five years of grounded, trial-level experience handling border drug smuggling cases opposes the logic and impact of that conclusion....

In this Order, I have attempted to explain why I continue to believe and would find that the Rodriguez defendants are “average” border drug smugglers — no better, no worse. But my explanation and probable findings — even if not expressly precluded by the law of the case and the rule of mandate — are most certainly inconsistent with the expansive “spirit” of the Mandates, which unsubtly bespeaks the desired conclusion of the court of appeals.  The Ninth Circuit has said that in situations like this, where the original sentencing judge on remand would “have substantial difficulty in putting out of his or her mind previously-expressed views or findings determined to be erroneous,” the judge should recuse.  United States v. Arnett, 628 F.2d 1162,1165 (9th Cir. 1979).  Because I find myself unable to brush aside my insights, experience, and long-held conclusions about what “average” border drug smugglers know and how they operate, I respectfully recuse from further involvement in these cases.

Howard Bashman says he "suspect that this sort of recusal happens quite rarely," and I suspect he is right.  But the real rarity here is likely the lengthy explanation of the reasoning behind the recusal, and I wonder if somewhat lower-key resentencing recusals might be a bit more common.

November 27, 2022 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Friday, November 18, 2022

Federal judge imposes (within guideline) sentence of 135 months on Theranos founder Elizabeth Holmes

After a lengthy sentencing hearing (and a favorable guideline calculation), Theranos founder Elizabeth Holmes heard US District Judge Edward Davila sentence her to 135 months in federal prison this afternoon.  (That's 11 years and three months for those not accustomed to math in base 12.) 

Why such a quirky number?  Apparently Judge Davila concluded the total loss in share value properly attributed to Holmes's fraud was $121 million, which was an integral finding to support his calculation that her guidelines range was 135-168 months. (The feds, some may recall, calculated her guideline range to be life.)

Here is the lede of the Wall Street Journal's coverage of the sentence: "Elizabeth Holmes, the founder of Theranos Inc. convicted of fraud, was sentenced to 135 months, or 11.25 years, in prison, capping the extraordinary downfall of a one-time Silicon Valley wunderkind."

Prior related posts:

November 18, 2022 in Celebrity sentencings, Federal Sentencing Guidelines, White-collar sentencing | Permalink | Comments (8)

Any final thoughts on today's federal sentencing of Elizabeth Holmes?

As I write this post, the federal sentencing of the Theranos founder Elizabeth Holmes is scheduled to begin after she was found guilty of four of 11 charges of fraud at a jury trial this past January. I have to go teach my 1L Crim law class in a few minutes, so I might be slow to report the outcome if the sentencing is quick.  But I can here seek any pre- (or post-)sentencing final thoughts, aided by this New York Times lengthy preview piece (which, as I note below, has some technical errors).  Here are excerpts:

Senator Cory Booker, Democrat of New Jersey, recently praised Elizabeth Holmes’s thoughtful focus and “determination to make a difference.”  The actress Ricki Noel Lander said Ms. Holmes was “a trustworthy friend and a genuinely lovely person.”  And Channing Robertson, who was a professor of chemical engineering at Stanford University, commended Ms. Holmes for her “compassion for others.”

Their comments were part of a cache of more than 100 letters that were filed over the last week to a federal judge in San Jose, Calif., in an effort to reduce the punishment for Ms. Holmes, the founder of the failed blood testing start-up Theranos. In January, she was convicted of four counts of defrauding investors about Theranos’s technology and business dealings. She is scheduled to be sentenced for those crimes on Friday.

Ms. Holmes, 38, faces a maximum of 20 years in prison, according to federal sentencing guidelines for wire fraud. Her lawyers have requested 18 months of house arrest, while prosecutors have asked for 15 years of imprisonment.  The probation officer in Ms. Holmes’s case has recommended a sentence of nine years.

The decision lies with Judge Edward J. Davila of U.S. District Court for the Northern District of California, who oversaw Ms. Holmes’s trial last year. In addition to the letters from her supporters asking for leniency, he is set to take into account lengthy memos filed by her lawyers and prosecutors, and will consider whether Ms. Holmes has accepted responsibility for her actions.

Most notably, Judge Davila must weigh the message that Ms. Holmes’s sentence sends to the world. Her high-profile case came to symbolize the excesses and hubris of Silicon Valley companies that often play fast and loose with the law. Theranos raised $945 million from investors, valuing the company at $9 billion, on the claim that its technology could accurately run many tests on a single drop of blood. But the technology never worked as promised.

Few tech executives are ever found guilty of fraud. So a lighter sentence for Ms. Holmes could send the wrong signal to the industry, legal experts said. “This is a case with more deterrence potential than most,” said Andrew George, a white-collar defense lawyer at Baker Botts. “Judge Davila will be sensitive to any impression that this person of privilege got a slap on the wrist.”...

Since Ms. Holmes was convicted, other high profile start-up founders have also come under scrutiny, prompting further debates over start-up ethics. Trevor Milton, the founder of the electric vehicle start-up Nikola, was convicted last month on charges of lying about his company’s technology. Sam Bankman-Fried, the founder of the cryptocurrency exchange FTX, is under numerous investigations after his company suddenly collapsed into bankruptcy last week....

Prosecutors said in court filings that significant prison time for her would send a message to other entrepreneurs who stretched the truth. A long sentence would not only “deter future start-up fraud schemes” but also “rebuild the trust investors must have when funding innovators,” they wrote.

I am pretty sure that each of Holmes' four fraud convictions carry a 20-year maximum sentence, so technically she faces a maximum of 80 years in prison.  In addition, I believe "according to federal sentencing guidelines" calculations put forward by the prosecution, the guidelines actually call for a life sentence (which is not formally possible, though the 80-year max would be essentially a functional life sentence).  That all said, I am sticking to my 10-year sentence as the betting line over/under, though I am thinking I might be inclined to take the over.

Prior related posts:

November 18, 2022 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (5)

Friday, October 28, 2022

US Sentencing Commission finalizes its policy priorities for for the 2022-2023 amendment year

This morning brought the first public US Sentencing Commission hearing in nearly four years, which was convened to finalize the USSC's priorities for the coming amendment year.   This new USSC news release describes all the details with links to key documents:

The United States Sentencing Commission today unanimously approved its policy priorities for the 2022-2023 amendment year ending May 1, 2023. Among its top priorities is implementation of two significant changes made by the First Step Act of 2018.

The First Step Act amended the statute providing for compassionate release to allow defendants for the first time to file for compassionate release, without having the Director of the Bureau of Prisons make a motion. This procedural option is not yet accounted for in the guidelines, leading most appellate courts to hold that the Commission’s policy statement governing compassionate release does not apply to motions filed by defendants. At the same time, in the wake of the COVID-19 pandemic, the debate about what constitutes “extraordinary and compelling reasons” for compassionate release took center stage across the nation with differing results.

“The conflicting holdings and varying results across circuits and districts suggest that the courts could benefit from updated guidance from the Commission, which is why we have set this as an important part of our agenda this year,” said Judge Carlton W. Reeves, chair of the Commission. 

In addition, the First Step Act made changes to the “safety valve,” which relieves certain drug trafficking offenders from statutory mandatory minimum penalties. The Act expanded eligibility to certain offenders with more than one criminal history point. The Commission intends to issue amendments to section 5C1.2 to recognize the revised statutory criteria and consider changes to the 2-level reduction in the drug trafficking guideline currently tied to the statutory safety valve.

The Commission also set out its intent to implement criminal provisions contained in the Bipartisan Safer Communities Act, which includes increased penalties for certain firearms offenses, and other legislative enactments that require Commission action.

The Commission published tentative priorities and invited public comment in September, receiving more than 8,000 letters of public comment in response. “The Commission is appreciative of the feedback it has received from all corners of the federal sentencing community,” stated Reeves. “As we now pivot to work on the final priorities set forth today, we look forward to a careful and detailed examination of these issues and our continued interaction with the public to ensure the federal sentencing guidelines properly reflect current law and promote uniformity in sentencing.”

The Commission will also address circuit conflicts, examine other key components of the guidelines relating to criminal history, and begin several multi-year projects, including an examination of diversion and alternatives-to-incarceration programs. “A number of judges and others within the court family expressed strong support for the programs within their own district,” Reeves said. “The Commission looks forward to hearing more from experts and researching more fully the benefits of these programs.”

The Commission will also study case law relating to guidelines commentary and continue its examination of the overall structure of the advisory guideline system post-U.S. v. Booker.

A complete list of final priorities may be found here and in an upcoming edition of the Federal Register.

From a quick review, the biggest change in the finalized priorities from the proposed priorities seems to be the addition of this new item: "(10) Consideration of possible amendments to the Guidelines Manual to address sexual abuse or contact offenses against a victim in the custody, care, or supervision of, and committed by law enforcement or correctional personnel."

As I mentioned after the release of the proposed USSC priorities, there are lots and lots of "hot topics" covered in many of the topics now to be tackled by the Commission in this list of now finalized priorities. I am extremely excited to see what the new Commission has planned for these topics.

A few prior related posts:

UPDATE:  The folks at Marijuana Moment have spotlighted via this report, headlined "Federal Commission Considers Changes To How Past Marijuana Convictions Can Affect Sentencing For New Crimes," that the USSC's finalized priorities included a notable addition with regard to low-level marijuana offenses and criminal history.  Here are the details:

The federal U.S. Sentencing Commission (USSC) says it is considering possible amendments to guidelines on whether, and to what extent, people’s criminal history for marijuana possession can be used against them in sentencing decisions for new convictions.

On Friday, the independent branch of the federal judiciary unanimously approved 14 policy priorities for an amendment cycle ending in May 2023. The cannabis item wasn’t included in an earlier version of the priority proposal list circulated for public feedback earlier this month, but it was added and adopted after President Joe Biden issued a mass marijuana pardon proclamation....

Now, USSC is calling it a priority to look into amending the guidelines for defendants’ criminal history reviews when it comes to “the impact of simple possession of marihuana offenses.”...

While the commission must still develop and pass any potential amendments to its guidelines, it is possible that it could soon be the case that prior simple cannabis possession offenses would be a non-issue from a sentencing perspective for new defendants. It is also potentially the case that a new sentencing policy for cannabis criminal histories could be retroactively applied.

October 28, 2022 in Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (2)

Sunday, October 23, 2022

US Sentencing Commission reports receiving "more than 8,000 public comment submissions pertaining to proposed priorities"

This past Friday, the US Sentencing Commission reported on the public comments it received in response to the USSC's tentative policy priorities for the 2022-2023 guideline amendment year (which were announced late last month).  Here is how the USSC describes on its website homepage what was set its way: "The Commission received more than 8,000 public comment submissions pertaining to proposed priorities for the 2022-2023 amendment year."

I would guess that eight thousand(!) comments amounts to some kind of record for the USSC.  This large number of comments surely reflects a kind of "pent up demand" given the need for guideline reforms to fully implement the First Step Act and other issues that have festered over the last four years while the Commission has lacked a quorum.  But I also suspect it reflects that many advocates may realize, circa Fall 2022, that the new USSC may be more willing and more able to advance certain federal criminal justice reforms than any other federal actors right now.

The USSC has provided a "sample of these letters" reflecting public comment at this link.  It is notable and interesting to see comments there from a Senator, from multiple federal judges, from prosecutors and defense attorneys, from probation officers, and from all sorts of interest groups and interested individuals.  Kudos to everyone involved in sharing a wide array of views to help the USSC's with its important work.  And, this Friday brings the first public US Sentencing Commission hearing in nearly four years, on October 28, to finalize the USSC's priorities for the coming amendment year.

A few prior related posts:

October 23, 2022 in Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (3)

Tuesday, October 18, 2022

Get ready: new US Sentencing Commission soon to finalize new policy priorities

Though MLB playoffs and NCAA and NFL action are what usually get me going this time of year, in 2022 my inner federal sentencing nerd has as much to look forward to as my inner sports fan.  Specifically, after receiving a few weeks ago the US Sentencing Commission's new tentative policy priorities for the 2022-2023 amendment year, next week brings the excitement of the first public US Sentencing Commission hearing in nearly four years, on October 28, to finalize the USSC's priorities for the coming amendment year.

For those eager to pre-game all the USSC action, the Commission has now released here a "very special episode" of its official podcast, Commission Chats.  This is "Episode 9: Meet Our New Chair!" and it gets previewed this way:

In this very special episode, newly appointed Commission Chair Carlton W. Reeves discusses highlights of his career as a lawyer and judge, including the moment he learned he was not only nominated as a member but also Chair of the Commission.  Judge Reeves also shares his goals for the Commission this amendment year and hopes for this season's Jackson State Tigers. (Published October 17, 2022)

And, for even more intense pre-game action, the folks at FAMM have put together this great panel discussion for Monday October 24 titled "Guess Who's Back: The Sentencing Commission's Return & the 2022-2023 Amendment Cycle."  Here is a preview of the FAMM overview:

After over 3 years without a Sentencing Commission, the Commission is now back in action.  What does this mean for criminal justice reform?  Join FAMM and our special guests as we provide an overview of the Commission's role in criminal justice reform, what we know the Commission will prioritize this guideline amendment cycle, the legal landscape that has developed in the absence of a Commission, and the impact of all this on real people.

So get ready, get ready, because here they come!

October 18, 2022 in Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Thursday, September 29, 2022

New US Sentencing Commission releases its first set of tentative policy priorities

As reported in this USSC press release, the "newly constituted United States Sentencing Commission today issued tentative policy priorities for the 2022-2023 amendment year — with top focus on implementation of the First Step Act of 2018."  Here is more:

The First Step Act, which authorized defendants to file motions in federal court, helped facilitate a substantial increase in compassionate release filings during the COVID-19 pandemic but the Commission recently reported wide variation in grant rates among the federal courts (more here).

The Commission also proposed a focus on implementation of the Bipartisan Safer Communities Act of 2022 relating to firearms penalties under §2K2.1, one of the most common sentencing guidelines applied annually.  The act created new penalties for straw purchasers and increased penalties for other firearms offenses.

In addition, the Commission proposed consideration of several circuit court conflicts that have emerged since the loss of a quorum.  Commissioners also identified as a priority further examination of the guidelines relating to criminal history in light of the agency’s studies on recidivism and complications in the application of the career offender provision.  

U.S. District Judge Carlton W. Reeves, Chair of the Commission remarked, “This amendment cycle is a particularly exciting and challenging one for the Commission.  It will require swift consensus-building among my colleagues and thoughtful feedback from all our stakeholders.”

The Commission’s amendment cycle typically begins in June and ends the following April (more here).  The recently confirmed Commissioners will work on an expedited timetable to finalize priorities in October and adopt amendments by May 1, 2023.

Reeves stated, “We know much is expected of this new Commission beyond these immediate priorities, and we are eager to start laying that groundwork.  We will operate in a deliberative, empirically-based, and inclusive manner — open to voices from all parts of our federal criminal justice system — judges, Congress, the Department of Justice, the Federal Public Defenders, probation officers, victims, important advocacy groups, and the public at large.”

A complete list of proposed priorities and comment submission instructions can be found here.  Public comment will be accepted through October 17, 2022.  

There are lots and lots of "hot topics" covered in the 13 items specified by the Commission in this new list of tentative priorities. Though I could get excited about just about all of them, I see particularly interesting possibility lurking in this "group of four":

(8) Consideration of possible amendments to the Guidelines Manual addressing 28 U.S.C. § 994(j).

(9) Consideration of possible amendments to the Guidelines Manual to prohibit the use of acquitted conduct in applying the guidelines.

(10) Multiyear study of the Guidelines Manual to address case law concerning the validity and enforceability of guideline commentary.

(11) Continuation of its multiyear examination of the structure of the guidelines post-Booker to simplify the guidelines while promoting the statutory purposes of sentencing.

Exciting times!!

September 29, 2022 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (7)

Monday, September 05, 2022

Noticing surprisingly low federal guideline range for sexual abuse of prisoners

For a variety of reasons, it can be all too easy to conclude that all of the federal sentencing guidelines are set way too high.  After all, federal judges impose sentences below the guidelines in more than half of all cases (see Table 8), and they do so even more frequently in certain child porn, drug and economic cases (see Table 10).  But this AP report on a notable recent federal sentencing in California highlights that there can be cases in which federal judges conclude the applicable guideline is way too low.  The piece is headlined "Chaplain who sexually abused inmates gets 7 years in prison," and here are just some of the details:

Behind a closed chapel office door inside a federal women’s prison in California, a chaplain forced inmates seeking his spiritual guidance to have sex with him, exploiting their faith and their powerlessness behind bars for his own gratification, prosecutors said.

James Theodore Highhouse was sentenced Wednesday to seven years in prison — more than double the recommended punishment in federal sentencing guidelines.  U.S. District Judge Haywood S. Gilliam Jr. said the guidelines, which call for a sentence of less than three years, “seriously underestimate the seriousness” of Highhouse’s conduct. “It’s hard to come up with the right words to describe how egregious an abuse of these victims this was,” Gilliam said.

Highhouse is among five workers charged in the last 14 months with sexually abusing inmates at the Federal Correctional Institution in Dublin, California, and the first to reach the sentencing phase of his case.... Highhouse must register as a sex offender once he’s released from prison, Gilliam said.

Highhouse, who was arrested in January and pleaded guilty in February, would tell women he abused at the Bay Area lockup, that everyone in the Bible had sex and that God wanted them to be together, prosecutors said.  An Army veteran, he pressured one inmate into intercourse on Veterans Day by telling her she needed to serve her country and on Thanksgiving by telling her she needed to show her gratitude for him, prosecutors said.

While Highhouse, 49, was charged only with abusing one inmate and lying to authorities, prosecutors say he engaged in predatory conduct with at least six women from 2014 to 2019 — including one he counseled at a veterans hospital where he worked before joining the federal Bureau of Prisons, where allegations were routinely ignored.  “Highhouse ruined my life — he truly did,” one inmate said in a victim impact statement. “I don’t even go to Church anymore because of him.  I have no trust in the Church and really, I don’t trust anyone because of what he did.”

Highhouse, enabled by a toxic culture of abuse and coverups at the prison, warned victims not to report him, telling one of them “no one will believe you because you’re an inmate, and I’m a chaplain,” prosecutors wrote in a sentencing memorandum. At the same time, prosecutors wrote, a prison counselor would rail about inmates “snitching” on employees, suggesting they instead “tell Trump about it,” referring to then-President Donald Trump.

Prosecutors had sought a 10-year prison sentence.  His lawyers asked for two years, the low end of the federal guidelines, which called for a sentence of 24 to 30 months.  Gilliam’s seven-year sentence matched the recommendation of probation officers who conducted Highhouse’s pre-sentence investigation....

All sexual activity between a prison worker and an inmate is illegal. Correctional employees enjoy substantial power over inmates, controlling every aspect of their lives from mealtime to lights out, and there is no scenario in which an inmate can give consent.... Highhouse pleaded guilty on Feb. 23 to two counts of sexual abuse of a ward, two counts of abusive sexual contact and one count of making false statements to federal agents.

All of the charges stem from allegations Highhouse repeatedly abused a female prisoner over a nine-month span in 2018 and 2019. That woman said in a victim impact statement that she cried herself to sleep after testifying before a grand jury about Highhouse’s abuse....

Other allegations against Highhouse, previously kept quiet by Dublin officials, came to light during the investigation, prosecutors said....  In May, an inmate now incarcerated at another federal prison facility reported that Highhouse raped her multiple times in his chapel office after she sought him out for counseling, prosecutors said.

There are many disconcerting and notable aspects of this story, but I am still struck that a prison official/chaplain can sexually abuse a prisoner repeatedly and yet only face a guideline sentencing range of 24 to 30 months.  That range is, generally speaking, well below the guideline ranges typically facing lower-level drug offenders and lower-level fraudsters.

September 5, 2022 in Federal Sentencing Guidelines, Offense Characteristics, Sex Offender Sentencing | Permalink | Comments (10)

Thursday, September 01, 2022

Longest prison term yet — 10 years — given to Jan 6 rioter who assaulted police officer

As reported in this Politico piece, a " federal judge on Thursday sentenced former New York cop Thomas Webster to 10 years in prison for assaulting a police officer outside the Capitol on Jan. 6, 2021, the longest sentence handed down yet in cases that arise from the attack."  Here is more:

U.S. District Court Judge Amit Mehta described Webster’s assault on D.C. police officer Noah Rathbun as one of the most haunting and shocking images from that violent day.

“I do wish you hadn’t come to Washington D.C. I do wish you had stayed home in New York, that you had not come out to the Capitol that day,” Mehta said. “Because all of us would be far better off. Not just you, your family, country. We’d all be far better off. Yet here we are.”

Mehta said he viewed Webster’s conduct as among the most egregious of any defendant sentenced so far. Until Thursday, the lengthiest sentences had been given to Texas militia member Guy Reffitt and local Virginia police officer Thomas Robertson, who were convicted by juries of attempting to obstruct congressional proceedings.

It’s the latest in a string of steeper sentences that have been issued as rioters facing felony charges — some of whom have taken their cases to trial — learn their fate from the judges who have presided over their cases for more than a year.

Images of Webster attempting to rip the gas mask off of Rathbun’s face amid broader chaos at the Capitol are among the most indelible images to emerge from the Jan. 6 attack. Mehta expressed incredulity that Webster took the stand in his own defense and attempted to argue that his effort to rip the officer’s gas mask off was really just to show him his hands and prove he wasn’t a threat.

Notably, though this case represents the longest sentencing to date for a Jan 6 rioter, the sentence of 10 years is still a full 7+ years below what the federal sentencing guidelines recommended (and what the federal prosecutors requested).

Some of many prior related posts:

September 1, 2022 in Celebrity sentencings, Federal Sentencing Guidelines, Offense Characteristics, Who Sentences | Permalink | Comments (4)

Monday, August 29, 2022

US Sentencing Commission releases big new report on "The Organizational Sentencing Guidelines: Thirty Years of Innovation and Influence"

Though a full new US Sentencing Commission was confirmed earlier this month, the outgoing folks are continuing to release notable new research reports as we await new action from the newbies.  The latest USSC report runs nearly 100 pages under the title "The Organizational Sentencing Guidelines: Thirty Years of Innovation and Influence." This USSC webpage provides this background with key findings:

This publication summarizes the history of Chapter Eight’s development and discusses the two substantive changes made to the elements of an effective compliance and ethics program. It then provides policymakers and researchers a snapshot of corporate sentencing over the last 30 years. Finally, the publication describes Chapter Eight’s impact beyond federal sentencing.

Key Findings:

  • The major innovations of the organizational guidelines are (1) incentivizing organizations to self-police their behavior; (2) providing guidance on effective compliance and ethics programs that organizations can implement to demonstrate efforts to self-police; and (3) holding organizations accountable based on specific factors of culpability.
  • The most significant achievement of Chapter Eight has been the widespread acceptance of the organizational guidelines' criteria for developing and maintaining effective compliance and ethics programs to prevent, detect, and report criminal conduct.
  • During the 30-year period since promulgation of the organizational guidelines, 4,946 organizational offenders have been sentenced in the 94 federal judicial districts. The majority of organizational offenders are domestic (88.1%), private (92.2%), and smaller organizations with fewer than 50 employees (70.4%).
  • Six offense types accounted for 80.4 percent of all organizational offenders from fiscal years 1992 through 2021.
    • Fraud (30.1%) and environmental (24.0%) offenses, accounted for more than half (54.1%) of all organizational offenses.
    • Other common offense types were antitrust (8.4%), food and drug (6.6%), money laundering (6.1%), and import and export crimes (5.2%).
  • Commission data suggests that the lack of an effective compliance and ethics program may be a contributing factor to criminal prosecutions against organizations.
    • Since fiscal year 1992, the overwhelming majority of organizational offenders (89.6%) did not have any compliance and ethics program.
    • Only 11 of the 4,946 organizational offenders sentenced since fiscal year 1992 received a culpability score reduction for having an effective compliance and ethics program.
    • More than half (58.3%) of the organizational offenders sentenced under the fine guidelines received a culpability score increase for the involvement in or tolerance of criminal activity.
    • Few organizational offenders (1.5% overall) received the five-point culpability score reduction for disclosing the offense to appropriate authorities prior to a government investigation in addition to their full cooperation and acceptance of responsibility.
    • Since fiscal year 2000, courts ordered one-fifth (19.5%) of organizational offenders to implement an effective compliance and ethics program.
  • Since fiscal year 1992, the courts have imposed nearly $33 billion in fines on organizational offenders. The average fine imposed was over $9 million and the median amount was $100,000.
  • Since fiscal year 1992, courts sentenced over two-thirds of organizational offenders (69.1%) to a term of probation and the average length of the term of probation imposed was 39 months.

August 29, 2022 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Who Sentences | Permalink | Comments (0)

Feds seeking (within-guideline) sentence of 17+ years for former NYPD Jan 6 defendant

As detailed in this Insider article, headlined "DOJ seeks the longest Capitol riot prison term yet — 17 years for 'eye-gouging' ex-NYPD officer who swung a flagpole at police," late last week federal prosecutors filed another notable sentencing memorandum for another notable Jan 6 defendant who was convicted after a trial.  Here are excerpts:

Federal prosecutors are seeking the longest sentence yet for a Capitol rioter, asking the judge to give a former NYPD officer 210 months — seventeen and a half years — in prison.

Thomas Webster was found guilty on all six charges in May, including assaulting an officer and entering restricted grounds.  His sentencing is set for September 1.

In a statement arguing for a shorter sentence, Webster's lawyer said that he had been under "an extraordinary amount of influence" from former President Donald Trump's election falsehoods on January 6, 2021.

The criminal complaint describes Webster elbowing his way through the mob to be among those leading the charge against the Capitol police barricade, shouting at one officer: "You fucking piece of shit," and "you fucking commie fuck." Webster also wielded a metal flagpole at the riot. The DOJ later released body camera footage of him repeatedly hitting the metal barrier next to the officer with it until it broke, the complaint said. The footage then shows him tackling the officer to the ground and appearing to gouge the officer's eyes.

The jury rejected Webster's argument at trial that he acted in self-defense. Webster's status as a former member of law enforcement — he had served as part of former New York Mayor Mike Bloomberg's security detail — was at odds with his conduct towards the Capitol police, his defense conceded in court documents seen by Insider.

Nonetheless, lawyer James Monroe asked the judge to consider a shorter sentence on the grounds of Webster's later remorse and the notion that former President Donald Trump misled him.  Election-fraud lies "championed by former President Donald Trump exerted an extraordinary amount of influence" over people like Webster, who had received "relentless disinformation" from Trump's supporters, Monroe said....

That 17 years and six months recommended by the DOJ stretches far beyond the longest sentence handed down to Capitol rioters so far, more than seven years given to rioter Guy Reffitt.  In that case, prosecutors sought a much longer sentence of 15 years, closer to what is being asked for Webster.

Here is a link to the Government's sentencing memo in US v. Webster.

UPDATE: I helpful commenter flagged this sentencing memorandum from the defense which makes this pitch for a much lower sentence:

Mr. Webster's Guideline range, as calculated by Probation, falls at a total offense level 37 and a criminal history category I.  At this range, the recommended sentence is 210 to 240 months.  Presumably, recognizing the disparity of imposing such a sentence, Probation has recommended a sentence of 120 months.  Mr. Webster was arrested on February 22, 2021 and remanded to Federal custody until his release on June 29, 2021, totaling 127 days of incarceration.  Upon being released by the Court on personal recognizance, Defendant has remained on a strict home confinement under the supervision of pre-trial services' High Intensity Supervision Program without incident for the last 421 days.  Regardless of the recommended range, Mr. Webster respectfully proposes a downward variance to time served together with a term of supervised release as a sufficient sentence, which is not greater than necessary, to satisfy the statutory criteria set forth in 18 U.S.C. § 3553(a).

August 29, 2022 in Celebrity sentencings, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (4)

Sunday, August 21, 2022

Might any victims of Theranos fraud urge leniency at sentencing for Elizabeth Holmes?

MaxresdefaultThe question in the title of this post is prompted by this Bloomberg article headlined "Elizabeth Holmes’s Victims Asked to Weigh in for Sentencing."  Here are excerpts:

The US Justice Department is seeking input from victims of the frauds at blood-testing startup Theranos Inc. committed by Elizabeth Holmes and her second-in-command, Ramesh “Sunny” Balwani.

The US Attorney’s Office in San Francisco on Thursday issued a “call for information” from victims following the separate convictions of the former executives for their roles in the collapse of the company once valued at $9 billion.  The federal judge in San Jose, California, who presided over the trials will use the information in determining their sentences, according to a statement from the office.

The universe of victims includes investors at all levels who poured more than $700 million into Theranos, some of whom hail from ultra-wealthy families and Silicon Valley venture capital firms, as well as thousands of patients who got inaccurate blood-test results from the startup’s clinics inside Walgreens stores....

Holmes was convicted in January of defrauding investors, while Balwani was found guilty in July on similar counts as well as defrauding patients. The trials for Holmes and Balwani were split because Holmes accused the ex-Theranos president, who was also her boyfriend, of sexually and verbally abusing her....  In their respective trials, the Theranos executives blamed each other for the fraud.

US District Judge Edward Davila will weigh the evidence presented at both trials, as well as the counts each was found guilty of, in determining their sentences. Criminal defense lawyers have said both Holmes and Balwani could face a decade in prison....  Both former executives remain free on bond and have asked Davila to set aside the jury verdicts. Holmes’s sentencing is scheduled for October; Balwani’s is set for November.

While prosecutors are busy gathering victim statements to make a case for lengthy periods of incarceration, the defendants are doing their own legwork in a bid for leniency, according to criminal defense attorney Seth Kretzer. “Two can play this game,” he said. “Both Balwani and Holmes will submit letters from their respective family and friends stating how horribly off they will all be with long prison terms.”

As this article explains, there are actually two sets of victims being asked for statements: "investor victims" and "patient victims." Here are links to the four-page statement for for each:

Victim Impact Statement For Investor Victims

Victim Impact Statement For Patient Victims

Notably, these forms do not include any questions that directly ask the victims to opine on the sentence that they would like to see the defendants receive.  But both forms close with this fairly open-ended query: "Is there anything else you would like the sentencing Judge to know about your experience with Theranos, Inc.?"

Prior related posts:

August 21, 2022 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Victims' Rights At Sentencing, Who Sentences | Permalink | Comments (0)

Saturday, August 20, 2022

US Sentencing Commission reports on "Federal Robbery: Prevalence, Trends, And Factors In Sentencing"

The US Sentencing Commission has released this new research report that provides a "comprehensive study of robbery offenders sentenced in fiscal year 2021 provides an analysis of the characteristics of robbery offenders, their criminal history, and their sentences imposed."  Additional background and Key Findings are available at this USSC webpage, and here are some highlights from that page:

The report also provides analyses on the prevalence of robbery offenses and how they were committed, including who was robbed, what was taken, the use or threatened use of physical force, the use of a firearm or other dangerous weapon, and whether any victim was injured or killed during a robbery.

This report builds upon the Commission’s recent observations regarding the high recidivism rates among federal robbery offenders.

Key Findings

  • Robbery offenders have consistently comprised a small but increasing proportion of the federal criminal caseload.
    • During fiscal years 2012 to 2021, the proportion of robbery offenders increased from 1.9 percent to 2.3 percent of the federal caseload....
  • Robbery offenders have criminal histories that are more extensive and more serious than other violent offenders.
    • Only one-quarter (26.5%) of robbery offenders were in the least serious criminal history category, CHC I, compared to 40.7 percent of other violent offenders....
  • Robbery offenders often engaged in dangerous aggravating conduct. In fiscal year 2021, a majority of robbery offenses involved dangerous weapons and threats of physical force against a victim.
    • Over three-quarters (77.6%) of robberies involved dangerous weapons. Firearms were the predominant type of weapon — they were present in 79.8 percent of robberies involving weapons.
    • The overwhelming majority (89.7%) of robberies involved a threat of physical force against a victim, and over one-quarter (25.7%) involved the use of physical force against a victim. A victim sustained bodily injury in 11.8 percent of robberies.
  • Robbery offenders received substantial sentences—on average 105 months of imprisonment in fiscal year 2021 — but sentences varied significantly depending upon whether the offender was also convicted under 18 U.S.C. § 924(c).
    • A substantial proportion (40.6%) of robbery offenders sentenced in fiscal year 2021 also had a conviction under section 924(c) for using or carrying a firearm during the offense.
    • The average sentence imposed for robbery offenders also convicted under section 924(c) was 155 months of imprisonment, compared to an average sentence of 71 months for robbery offenders without a section 924(c) conviction.

August 20, 2022 in Federal Sentencing Guidelines, Offense Characteristics | Permalink | Comments (4)

Friday, August 19, 2022

"The Myth of the All-Powerful Federal Prosecutor at Sentencing"

The title of this post is the title of this new article authored by Adam M. Gershowitz in the Summer 2022 issue of the Saint John's Law Review.  Here is its abstract:

Prosecutors are widely considered to be the most powerful actors in the criminal justice system.  And federal prosecutors are particularly feared.  While some recent scholarship casts doubt on the power of prosecutors, the prevailing wisdom is that prosecutors run the show, with judges falling in line and doing as prosecutors recommend.

This Article does not challenge the proposition that prosecutors are indeed quite powerful, particularly with respect to sentencing.  There are many structural advantages built into the system that combine to give prosecutors enormous influence over sentences.  For example, prosecutors have considerable power to bring a slew of charges that will increase the prospects of a large sentence.  Prosecutors also hold the cards in determining whether defendants should receive the benefit of substantial assistance motions for their cooperation.  The wide swath of aggravating factors in criminal statutes and the Federal Sentencing Guidelines also gives prosecutors considerable bargaining power over sentencing in plea bargaining.  Moreover, prosecutors have a strong lobbying presence to push legislatures to enact tougher sentencing regimes.  All told, there are considerable structural advantages that prosecutors hold in influencing the ultimate sentence a defendant will face.  This Article therefore does not question that prosecutors hold a lot of power with respect to sentencing.

What this Article does question however is the supposedly significant persuasive power that federal prosecutors have to influence judges at sentencing hearings.  After criminal charges have been filed, after the plea bargains ⎯ or trials ⎯ have concluded, and after the guidelines ranges have been calculated, we eventually reach the final moment in the courtroom.  Prosecutors stand in front of the judge and argue for a specific sentence that should be imposed on a defendant.  Often the sentence recommended by the prosecution varies considerably from the position advocated by the defense attorney; prosecutors sometimes base their arguments on drug quantities that are higher than were computed in the guidelines calculations, or they argue for other sentencing enhancements to apply.  Prosecutors sometimes argue strenuously against mitigating factors raised by the defense, such as poor health, family problems, or advanced age.  In short, the final event in a criminal case is a good old-fashioned, silver-tongued lawyering battle between the prosecutor and the defense attorney. 

August 19, 2022 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Thursday, August 11, 2022

Another Jan 6 rioter who was convicted at trial sentenced to 87 months in federal prison

Last week, as discussed in this post, Guy Reffitt, the first Jan. 6 defendant to be convicted at a jury trial (rather than through plea), was sentenced to 87 months in federal prison.  This AP piece reports on today's sentencing of another Jan 6 defendant conviction at trial and the similar outcome (coming from a different sentencing judge):

An off-duty Virginia police officer who stormed the U.S. Capitol on Jan, 6, 2021, with a fellow officer was sentenced Thursday to more than seven years in prison, matching the longest prison sentence so far among hundreds of Capitol riot cases.

Former Rocky Mount Police Sgt. Thomas Robertson declined to address the court before U.S. District Judge Christopher Cooper sentenced him to seven years and three months in prison.  Cooper also sentenced Robertson to three years of supervised release after his prison term.

Federal prosecutors had recommended an eight-year prison sentence for Robertson.  His sentence equals that of Guy Reffitt, a Texas man who attacked the Capitol while armed with a holstered handgun.  Robertson gets credit for the 13 months he has already spent in custody.  Robertson has been jailed since Cooper ruled last year that he violated the terms of his pretrial release by possessing firearms.

The judge said he was troubled by Robertson's conduct since his arrest — not only his stockpiling of guns but also his words advocating for violence.  After Jan. 6, Robertson told a friend that he was prepared to fight and die in a civil war and he clung to baseless conspiracy theories that the 2020 election was stolen from then-President Donald Trump, the judge noted.

Sentencing guidelines calculated by Cooper recommended a prison term ranging from seven years and three months to nine years.  “It's a long time because it reflects the seriousness of the offenses that you were convicted of,” the judge said.

In April, a jury convicted Robertson of attacking the Capitol to obstruct Congress from certifying Joe Biden’s 2020 presidential victory.  Jurors found Robertson guilty of all six counts in his indictment, including charges that he interfered with police officers at the Capitol and that he entered a restricted area with a dangerous weapon, a large wooden stick....

Robertson traveled to Washington on that morning with another off-duty Rocky Mount police officer, Jacob Fracker, and a third man, a neighbor who wasn't charged in the case.  Fracker was scheduled to be tried alongside Robertson before he pleaded guilty to a conspiracy charge in March and agreed to cooperate with federal authorities. Cooper is scheduled to sentence Fracker next Tuesday.

Prosecutors have asked Cooper to spare Fracker from a prison term and sentence him to six months of probation along with a period of home detention or “community confinement.”  They said Fracker's “fulsome” cooperation and trial testimony was crucial in securing convictions against Robertson.

Robertson's lawyer, Mark Rollins, sought a prison sentence below two years and three months. He questioned the fairness of the wide gap in sentences that prosecutors recommended for Robertson and Fracker given their similar conduct. Robertson served his country and community with distinction, his lawyer told the judge. “His life already is in shambles,” Rollins said....

In a letter addressed to the judge, Robertson said he took full responsibility for his actions on Jan. 6 and “any poor decisions I made.” He blamed the vitriolic content of his social media posts on a mix of stress, alcohol abuse and “submersion in deep ‘rabbit holes’ of election conspiracy theory.” “I sat around at night drinking too much and reacting to articles and sites given to me by Facebook” algorithms, he wrote.

A few of many prior related posts:

August 11, 2022 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics | Permalink | Comments (0)

Monday, August 01, 2022

District judge sentences first Jan 6 rioter convicted at trial to 87 months in federal prison (which was bottom of calculated guideline range)

As reported in this Politico article, after an extended sentencing hearing, a "Texas militia member on Monday received the longest sentence to date of any participant in the Jan. 6, 2021, attack on the Capitol: seven-and-a-quarter years in prison."  Here are some of the notable details:

Guy Reffitt, 49, was the first Jan. 6 defendant to go before a jury and was convicted in March on five felony charges, including interfering with police during civil disorder, obstructing the tallying of the electoral votes and threatening his children if they reported him to authorities.

However, U.S. District Court Judge Dabney Friedrich declined the Justice Department’s request to treat Reffitt’s crimes as terrorism, which would have substantially increased the recommended sentence under federal guidelines. 

It was federal prosecutors’ first request to draw tougher punishment for a Jan. 6 defendant by classifying his actions as domestic terrorism, but the judge concluded it was not appropriate to apply the more severe sentencing guidelines permitted under federal law in terrorism-related cases. Friedrich said applying the sentencing enhancement to Reffitt would create an “unwarranted sentencing disparity” with other cases involving similar threats or conduct related to the Capitol riot.

“There are a lot of cases where defendants possessed weapons or committed very violent assaults,” Friedrich noted, highlighting that the most severe sentences handed down in Jan. 6 cases thus far were a little more than five years while prosecutors asked for a 15-year sentence against Reffitt. “The government is asking for a sentence that is three times as long as any other defendant and the defendant did not assault an officer.”...

Assistant U.S. Attorney Jeffrey Nestler said Reffitt’s discussions before and after Jan. 6 make clear he was intent on carrying out his repeated threats to drag Speaker Nancy Pelosi and Senate Minority Leader Mitch McConnell from the Capitol building by force. In discussions caught on video, Reffitt was recorded referring to his desire to listen to the lawmaker’s heads bouncing down the Capitol steps. “He was planning to overtake our government. He wasn’t just trying to stop the certification,” Nestler said. “He wasn’t done. Jan. 6 was just a preface. ... Mr Reffitt is in a class all by himself.”

However, Friedrich said prosecutors had urged much shorter sentences in cases involving people who were directly involved in actual violence against police. “You’re making recommendations that are way different than you’re making in this case — way different,” said the judge, an appointee of President Donald Trump.

Friedrich also said she worried that Reffitt not be unduly punished for deciding to go to trial, rather than enter into a plea bargain with prosecutors. “His decision to exercise his constitutional right to go to trial should not result in a dramatically different sentence,” she said.

Nestler also noted that Reffitt was convicted of having a handgun on his hip while on the Capitol grounds, which Friedrich conceded was an important distinction from the other cases to reach sentencing thus far. “Huge, huge … and does the firearm deserve three times the sentence if it was not brandished or used in any way?” the judge asked.

Another unusual aspect of Reffitt’s case is that he was convicted of threatening to injure his two children if they discussed his actions on Jan. 6 with authorities. One of those children, Peyton Reffitt, spoke briefly during Monday’s hearing to urge leniency for her father. She suggested that Trump was more responsible for the events that day than her father was. “My father’s name was not on all the flags that were there that day that everyone was carrying that day,” Peyton said. “He was not the leader.”

As noted in a prior post, the presentence report had calculated Reffitt's guidelines range to be 108 to 135 months, but Judge Friedrich did not apply all the suggested guideline enhancement and ultimately  sentence him at the bottom of the guideline range calculated by her to be 87 to 108 months.

A few of many prior related posts:

UPDATE: I found notable this Insider article which is headlined "Trump 'deserves life in prison' says daughter of January 6 rioter who was sentenced to 7 years behind bars." Here are excerpts:

The daughter of a man sentenced to 7 years in prison on Monday for taking part in the January 6 insurrection told reporters that the former president, whose supporters stormed the US Capitol, deserves to spend the rest of his life behind bars if her father was going to get his sentence....

After Reffitt was sentenced, his daughters spoke to the media and argued that it was not fair for their father to receive such a long prison term while more powerful people remain free.

"To mark my dad as this horrible person, and then having him prosecuted like this, when somebody is maybe even able to get elected again? Doesn't seem right to me," Sarah Reffitt told reporters.

"Trump deserves life in prison if my father is in prison for this long," Petyon Reffitt added.

August 1, 2022 in Booker in district courts, Celebrity sentencings, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (5)

Tuesday, July 26, 2022

US Sentencing Commission reports on "Older Offenders in the Federal System"

Cover_older-offendersI received an email this morning spotlighting two interesting and important new data reports from the US Sentencing Commission. One of these new USSC reports is this 68-page effort titled "Older Offenders in the Federal System." Highlights are provided via this USSC webpage where one can find this "Summary" and "Key Findings":

Congress requires courts to consider several factors when determining the appropriate sentence to be imposed in federal cases, among them the “history and characteristics of the defendant.”  The sentencing guidelines also specifically authorize judges to consider an offender’s age when determining whether to depart from the federal sentencing guidelines.  In this report, the Commission presents information on relatively small number of offenders who were aged 50 or older at the time they were sentenced in the federal system.  In particular, the report examines older federal offenders who were sentenced in fiscal year 2021 and the crimes they committed, then assesses whether age was given a special consideration at sentencing.  This report specifically focuses on three issues that could impact the sentencing of older offenders: age and infirmity, life expectancy, and the risk of recidivism.

Older offenders commit fraud and sexual offenses at higher rates than all other offenders.

  • Older offenders had roughly three times the rate of fraud offenses (17.8%) and a greater proportion of sex offenses (7.3%), compared to offenders under age 50 (6.4% and 4.1%, respectively).
  • The rate of offenders committing sex offenses increased incrementally as the age of the offender increased. Offenders 70 and older committed sex offenses at nearly three times the rate (11.9%) of offenders under the age of 50 (4.1%).

Roughly 40 percent (40.7%) of older offenders had a physical disability prior to arrest for the instant offense.

  • The rate of offenders with a disability increased incrementally as offenders' age at sentencing increased, so that roughly two-thirds (63.3%) of offenders 70 and older had a physical disability.

About one-third (31.2%) of older offenders had used drugs or misused prescription drugs in the year prior to arrest.

  • Among older drug users, the most used substances were marijuana (32.4%) and methamphetamine (28.5%).

Older offenders have less extensive criminal histories, compared to all other federal offenders.

  • More than half (52.5%) of older offenders were in Criminal History Category (CHC) I, the lowest criminal history category, compared to 37.5 percent of offenders under 50 years of age.

The overwhelming majority (80.1%) of older offenders were sentenced to prison. However, older offenders were also more likely to receive fines and alternative sentences, compared to offenders under age 50.

  • The oldest offenders were the most likely to receive an alternative sentence or fine; roughly a third (31.3%) of offenders 65 through 69 and more than 40 percent (42.1%) of offenders 70 and older received an alternative sentence or fine.
  • The oldest offenders were most likely to have received sentences that exceed life expectancy.

Nearly forty percent (38.6%) of offenders who were sentenced at 70 years of age or older received a sentence that exceeds their life expectancy, compared to 7.1 percent of offenders 65 through 69, and less than one percent of offenders under the age of 50.

In fiscal year 2021, a nearly equal proportion of older offenders (36.7%) were sentenced within the guideline range as received a below range variance (35.5%).

  • The proportion of offenders receiving variances increased as an offender’s age at sentencing increased, with the oldest offenders being the most likely to receive a variance.
  • Offenders 65 and older were nearly as likely to receive a variance (48.9%) as they were to receive a sentence under the Guidelines Manual (51.1%).

The recidivism rate of older offenders (21.3%) was less than half that of offenders under the age of 50 (53.4%).

  • As offenders’ age at sentencing increased, recidivism rates decreased.
  • Recidivism events for older offenders were less serious, compared to offenders under the age of 50.
  • Older offenders take a longer time to recidivate, compared to their younger peers.

July 26, 2022 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Offender Characteristics | Permalink | Comments (0)

US Sentencing Commission reports on "Life Sentences in the Federal System"

Cover_life-sentencesI received an email this morning spotlighting two interesting and important new data reports from the US Sentencing Commission. One of these new USSC reports is this 40-page effort titled simply "Life Sentences in the Federal System." Highlights are provided via this USSC webpage where one can find this "Summary" and "Key Findings":

There are numerous federal criminal statutes authorizing a sentence of life as the maximum sentence allowed, such as for offenses involving drug trafficking, racketeering, and firearms crimes.  While convictions under these statutes are common, sentences of life imprisonment are rare, accounting for only a small proportion of all federal offenders sentenced. 

In February 2015, the Commission released Life Sentences in the Federal Criminal Justice System, examining the application of life sentences by federal courts during fiscal year 2013.  Using data from fiscal years 2016 through 2021, this report updates and augments the Commission’s previous findings by examining the offenses that led to the life sentences imprisonment imposed, along with offender demographics, criminal histories, and victim-related adjustments.

Offenders Sentenced to Life Imprisonment

  • During fiscal years 2016 through 2021, there were 709 federal offenders sentenced to life imprisonment, which accounted for 0.2 percent of the total federal offender population.
  • Almost half (48.7%) of offenders sentenced to life imprisonment were convicted of murder.
  • Approximately half (47.5%) of offenders sentenced to life imprisonment were found to either have possessed a weapon in connection with their instant offense or were convicted under 18 U.S.C. § 924(c) — for possession or use of a firearm in furtherance of a crime of violence or drug trafficking crime.  This is almost five times the rate for offenders who were sentenced to less than life imprisonment (9.8%).
  • Nearly one-third (31.4%) of offenders sentenced to life imprisonment received an aggravating role enhancement as an organizer, leader, manager, or supervisor in the offense, which is approximately eight times higher than those sentenced to less than life imprisonment (4.2%).
  • Offenders sentenced to life imprisonment qualified as repeat and dangerous sex offenders in 11.8 percent of cases, in comparison to 0.6 percent of offenders sentenced to less than life imprisonment.
  • The trial rate of offenders sentenced to life imprisonment was 75.6 percent, which was over thirty times higher than the 2.3 percent trial rate for all other federal offenders.
Offenders Sentenced to De Facto Life Imprisonment
  • There were 799 offenders sentenced to de facto life imprisonment, which accounted for 0.2 percent of the total federal offender population.
  • Half (50.6%) of offenders sentenced to de facto life imprisonment were convicted of sexual abuse.
  • One-third (33.2%) of offenders sentenced to de facto life imprisonment were found to either have possessed a weapon in connection with their instant offense or were convicted under 18 U.S.C. § 924(c) — for possession or use of a firearm in furtherance of a crime of violence or drug trafficking crime.
  • More than one-in-seven (15.4%) offenders sentenced to de facto life imprisonment received an aggravating role enhancement as an organizer, leader, manager, or supervisor in the offense.
  • Offenders sentenced to de facto life imprisonment qualified as repeat and dangerous sex offenders in 39.4 percent of cases.
  • The trial rate of offenders sentenced to de facto life imprisonment was 39.4 percent.

July 26, 2022 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Wednesday, July 20, 2022

"Federal Sentencing of Illegal Reentry: The Impact of The 2016 Guideline Amendment"

Cover_illegal-reentryThe title of this post is the title of this notable new US Sentencing Commission report. This relatively short report (only 38 pages) is summarized on this USSC webpage providing an "Overview" and a bunch of "Key Findings." Here is that overview and some of the key findings:

Overview

In 2016, the United States Sentencing Commission promulgated an amendment that comprehensively revised the guideline covering illegal reentry offenses — §2L1.2 (Unlawfully Entering or Remaining in the United States).  The amendment, Amendment 802, became effective November 1, 2016, and represented the most comprehensive revision of a major guideline in the last two decades.  This report examines the impact of Amendment 802 by looking back at sentencings under §2L1.2 over the last ten fiscal years.  The report first describes the concerns leading to the amendment, including that §2L1.2’s 12- and 16-level increases were overly severe and led to variances, and that using the “categorical approach” to apply enhancements was overly complex, resource intensive, and increased litigation and uncertainty.  After outlining the changes made by Amendment 802, the report assesses its impact on guideline application for §2L1.2 offenders and on appeals involving §2L1.2.

Key Findings

  • Over the last ten fiscal years, immigration offenders have represented either the highest number or second-highest number of offenders sentenced annually.  The vast majority of immigration offenders were sentenced under §2L1.2.
     
  • Amendment 802 to the Guidelines Manual ameliorated concerns about the severity of §2L1.2’s enhancements.
    • While variance rates for §2L1.2 offenders remained largely consistent before and after the amendment, courts imposed sentences within the applicable guideline range at a higher rate on average (66.0%) in the five fiscal years after the amendment than the five fiscal years before the amendment (56.6%). Furthermore, the difference between the average guideline minimum and the average sentence imposed decreased from at least three months before the amendment to no more than one month between fiscal years 2017 and 2020, and slightly over two months in fiscal year 2021.
    • These sentencing trends likely are attributable to the decreasing severity of the sentencing enhancements applicable to offenders sentenced under §2L1.2. The number of offenders who received sentencing increases of 12 or more offense levels decreased substantially from 26,094 in the five fiscal years before the amendment to 5,497 in the five fiscal years after the amendment. The average sentencing increase similarly decreased from seven to four offense levels.
       
  • Amendment 802 significantly simplified guideline application and reduced appeals.
    • In the five fiscal years before the amendment, 31,824 offenders sentenced under §2L1.2 (37.1%) received a sentencing enhancement that potentially required courts to analyze predicate offenses using the categorical approach. That number decreased considerably to only 59 offenders (0.1%) in the five fiscal years after the amendment.
    • After Amendment 802, the number of opinions on §2L1.2 appeals decreased by 90 percent, from 239 in fiscal year 2017 to 24 in fiscal year 2021. Notably, this decline occurred even while the number of immigration sentencings rose steadily from fiscal year 2017 to a ten-year high in fiscal year 2019. By contrast, before the amendment, appellate courts issued 249 opinions on §2L1.2 appeals in fiscal year 2016 alone, and two-thirds of the appeals raised application issues relating to the categorical approach.

July 20, 2022 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics | Permalink | Comments (0)

Saturday, July 16, 2022

Feds seeking (above-guideline) sentence of 15 years for first Jan 6 defendant to be sentenced after trial convictions

Based on a recent AP accounting of the January 6 riot cases, I believe there have already been around 200 defendants sentenced for their activities related to the Capitol riot, but all of those sentences have been handed down after guilty pleas.  As detailed in this Insider article, federal prosecutors are seeking a particularly severe sentence for the first rioter due to be sentenced following a conviction at trial.  Here are the basics:

Guy Reffitt, the first Capitol rioter convicted at trial on charges stemming from the January 6, 2021 insurrection, should receive a 15-year prison sentence for his "central role" in leading a pro-Trump mob that clashed with police protecting Congress, federal prosecutors said in a court filing Friday.

A jury in Washington, DC, needed just hours in early March to find Reffitt guilty on all five charges he faced in connection with the Capitol attack, including obstruction of an official proceeding. Reffitt, of Texas, was also found guilty of entering restricted Capitol grounds with a handgun and with later threatening his children to keep them from reporting him to law enforcement.

In a 58-page court filing, federal prosecutors argued that Reffitt played a pivotal role in "overwhelming officers and showing the mob the way forward at the outset of the riot." The language echoed their description of Reffitt at his weeklong trial, where prosecutors called Reffitt the "tip of this mob's spear" and played video footage of him ascending stairs up to the Capitol in tactical gear, with fellow members of the pro-Trump mob following him.

If ordered, the 15-year sentence would go down as the longest prison term given to a Capitol rioter to date, nearly tripling the more than 5-year sentence Robert Scott Palmer received after throwing a fire extinguisher at police during the January 6 attack. Judge Dabney Friedrich, a Trump appointee confirmed in 2017, is set to sentence Reffitt on August 1....

In a separate court filing Friday, Reffitt's defense lawyer argued that he should receive a sentence of no longer than 2 years in prison. His lawyer, F. Clinton Broden, noted that Reffitt never entered the Capitol.

The Government's lengthy sentencing memorandum is available at this link, and it begins this way:

For Defendant Guy Reffitt’s central role in leading a mob that attacked the United States Capitol while our elected representatives met in a solemn Joint Session of Congress — including his intention to use his gun and police-style flexicuffs to forcibly drag legislators out of the building and take over Congress, and his later threats to harm his children if they turned him into the FBI — the government respectfully requests that this Court sentence him to 15 years of incarceration.

The Court should depart upwards from the PSR’s Sentencing Guidelines range of 9 to 11.25 years (108 to 135 months)2 of incarceration both because Reffitt’s crime “was calculated to influence or affect the conduct of government by intimidation or coercion,” U.S.S.G. § 3A1.4, cmt. n.4, and because the Guidelines’ grouping analysis provides “inadequate scope” for Reffitt’s possession of multiple weapons in the commission of his offenses, see U.S.S.G. § 3D1.4, bkgd. cmt. (upward departure based on grouping); § 5K2.6 (upward departure based on use of weapons).

The defense's sentencing memorandum is available at this link, stresses to the court the "need to avoid sentencing disparities" and it contends that "most if not all defendants who received a sentence of greater than 24 months imprisonment are at a whole different level than Mr. Reffitt."  It concludes this way:

Based upon the foregoing, Undersigned Counsel respectfully suggests that a sentence of no more than 24 months imprisonment is, in fact, sufficient but not greater than necessary to comply with the purposes of 18 U.S.C. § 3553.

Some of many prior related posts:

July 16, 2022 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (21)

Thursday, July 14, 2022

Might SCOTUS finally be ready to take up acquitted conduct sentencing enhancements?

Long-time readers know I have long bemoaned the use of so-called "acquitted conduct" to enhance sentencing in the federal system.  My moans have sometimes found expression in amicus briefs in support of efforts to get the Supreme Court to take up this issue, and I surmise any number of defendants have brought this issue to SCOTUS in cert petitions over the last two decades.  But the Justices have persistently declined to take up this issue (though, back in the 2014 Jones case, Justice Scalia joined by Justices Ginsburg and Thomas dissented from the denial of cert on this topic). 

But hope springs eternal, and this month I had the pleasure of working with great lawyers at Squire Patton Boggs to file another amicus brief on this issue, this one in support of petitioner Dayonta McClinton.  I blogged here about McClinton's case after the Seventh Circuit affirmed his 19-year sentence that was based heavily on the judge's determination that McClinton was to be held responsible for a murder even after a jury had acquitted him of that killing.  As detailed in this SCOTUS docket sheet, a number of notable interest groups have also filed amicus briefs in support of cert in this case.

I have a smidge of extra hopefulness for SCOTUS review this time because of the recent transition of Justices.  Justice Breyer, who always opposed the Apprendi/Blakely line of Sixth Amendment cases and always supported broad judicial fact-finding at sentencing, likely was never too keen on this issue.  But Justice Breyer is no longer considering cert petitions, and I am hopeful that his replacement, Justice Ketanji Brown Jackson, might be more inclined to vote for cert on this topic.  (In addition, Justice Kavanaugh expressed concerns about acquitted conduct when on the DC Circuit, and Justice Gorsuch has long expressed strong affinity for jury trial rights.)  And today brought an extra jolt of hopefulness because the Supreme Court officially requested that the Government respond to the cert petition after the Solicitor General had waived its right to file a response.

Because every cert petition is a long shot, I will still going to be keeping my expectations tempered.  But, I do feel fairly confident that the Justices will eventually take this issue up, so I hope they come to see that there is no time like the present.

A few recent of many, many, many prior related posts:

July 14, 2022 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (19)

Another REPOSTING: Call for commentary for Federal Sentencing Reporter issue to provide "Advice for a new U.S. Sentencing Commission"

With the topic so timely at a time of year when so much can get forgotten, I am eager to keep reminding everyone here about this call for papers from the Federal Sentencing Reporter:

Seeking Commentaries for Federal Sentencing Reporter's October Issue to provide “Advice for a new U.S. Sentencing Commission”

Last month, President Joseph Biden announced seven nominees for the U.S. Sentencing Commission, and in early June the Senate Judiciary Committee held a confirmation hearing for this full slate of nominees.  The Commission has lacked a quorum since 2019, which has prevented the agency from amending the US Sentencing Guidelines in any way. President Biden’s nominations, if the confirmation process continues to move forward this summer, should allow an all-new Commission to get to work on federal sentencing reform matters big and small.  The editors of the Federal Sentencing Reporter are eager to invite judges, lawyers, other sentencing practitioners, legal academics, and sentencing researchers, to share “Advice for a new U.S. Sentencing Commission,” for publication in the October 2022 FSR issue.

FSR commentaries for this issue could tackle big structural issues (such as how the Commission might review and reassess the entire guidelines system), smaller statutory issues (such as how to respond to reforms Congress enacted in the FIRST STEP Act), or any other topic of interest or concern to modern federal sentencing policy and practice.  FSR welcomes advice from all perspectives, including lessons the Commission could learn from the states and other countries.  Everyone with an informed interest in federal sentencing law and practice is encouraged to submit a commentary.

FSR articles are typically brief — 2000 to 5000 words, though they can run longer — with light use of citations in the form of endnotes.  The pieces are designed to be read by busy stakeholders, including lawyers, judges, scholars, and legislators (as well as, of course, members and staff of the US Sentencing Commission).

Priority will be given to drafts submitted by July 25, 2022, and later submissions will be considered as space permits. Submissions should be sent electronically to berman.43 @ osu.edu with a clear indication of the author and the author’s professional affiliation.

July 14, 2022 in Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (1)

"What Do Federal Firearms Offenses Really Look Like?"

Cover_2022-firearmsThe title of this post is the title of this notable new US Sentencing Commission report. This relatively short report (only 46 pages) is summarized via this USSC webpage providing an "Overview" and a bunch of "Key Findings." Here is that overview and some of the key findings:

This report provides in-depth information on federal firearms offenders sentenced under the primary firearms guideline, §2K2.1. The Commission has published reports on various aspects of firearms offenses, including reports on armed career criminals, mandatory minimum penalties, and firearms offenders’ recidivism rates. The Commission’s prior research shows that firearms offenders are generally younger, have more extensive criminal history, and are more likely to commit a new crime than other offenders. The Commission’s previous research also shows that firearms offenders are more likely than other offenders to engage in violent criminal behavior. This publication continues the Commission’s work and provides detailed information about offenders sentenced under §2K2.1.

July 14, 2022 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Gun policy and sentencing | Permalink | Comments (0)

Saturday, July 09, 2022

Kisor role: how often is deference to the federal sentencing guidelines' commentary litigated?

In addition to starting with a terrible pun, the title of my post reflects my uncertainty about how much to make of the (slow-burn) uncertainty regarding application of the federal sentencing guidelines' commentary.  It is now over three years since the Supreme Court in Kisor v. Wilkie, 139 S. Ct. 2400 (2019), recast for federal courts "the deference they give to agencies ... in construing agency regulations."  The Kisor case had nothing to do with the federal sentencing guidelines, but lower courts have since grappled with whether and when Kisor means that the commentary to the guidelines no longer should always be followed.    

This Kisor question is on my mind because a helpful colleague made sure I did not miss the Third Circuit's work last week in US v. Adair, No. 20-1463 (3d Cir. June 30, 2022) (available here).  The panel in Adair does a thorough job explaining how Kisor has been understood (by some circuits) to recalibrate whether and how sentencing courts must show deference to the the guidelines' commentary.  But so far a majority of circuits have not read Kisor to require changing the general tendency to treat guidelines' commentary as binding just like the actual guidelines (as the Supreme Court suggested back in Stinson v. US, 508 U.S. 36 (1993)). 

I flagged this issue in this post last year noting a big Sixth Circuit ruling, US v. Riccardi, 989 F.3d 476 (6th Cir. 2021), which held that certain commentary was an "improper expansion" of the meaning of "loss" in a fraud case.  I thought the Riccardi ruling could lead to lots of Kisor-impacted litigation because many fraud cases involve commentary that arguably expands on the guideline term "loss."  And yet, this issue recently merited only a single footnote in the USSC's recent "Loss Calculation" Primer, leading me to think this issue is not actually being litigated much. 

I know there have been at least a few cert petitions urging the Supreme Court to take up what Kisor means for the guidelines and their commentary, but perhaps the Justices do not yet see this issue roiling the lower courts enough to demand its intervention.  That said, I have noticed that a number of recent student notes on this topic:

So, dear readers, it is mostly law students spending lots of time on this intricate issue or are a lot more litigants and lower courts grappling with this Kisor role than I can see?

July 9, 2022 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (4)

Thursday, July 07, 2022

In accord with plea deal, federal judge give (below-guideline) sentence of 21 years to Derek Chauvin for civil rights violations

As reported in this post back in December, Derek Chauvin pleaded guilty in federal court to civil rights violations arising from his murder of George Floyd.  He did so with a plea deal in place that would bind the federal judge to impose a sentence of between 20 and 25 years even though Chauvin's advisory guideline range is life imprisonment.  Today, as reported here by the AP, the judge decides to sentence toward the bottom of this plea bargained range:

A federal judge on Thursday sentenced Derek Chauvin to 21 years in prison for violating George Floyd’s civil rights, telling the former Minneapolis police officer that what he did was “simply wrong” and “offensive.”

U.S. District Judge Paul Magnuson sharply criticized Chauvin for his actions on May 25, 2020, even as he opted for the low end of a sentencing range called for in a plea agreement. Chauvin, who is white, pinned Floyd to the pavement outside a Minneapolis corner store for more than nine minutes as the Black man pleaded, “I can’t breathe,” and became unresponsive....

Magnuson, who earlier this year presided over the federal trial and convictions of three other officers at the scene, blamed Chauvin alone for what happened.... “You absolutely destroyed the lives of three young officers by taking command of the scene,” Magnuson said.

Chauvin’s plea agreement called for a sentence of 20 to 25 years to be served concurrent with a 22 1/2-year sentence for his state conviction of murder and manslaughter charges. Because of differences in parole eligibility in the state and federal systems, it means that Chauvin will serve slightly more time behind bars than he would have on the state sentence alone.

He would be eligible for parole after 15 years on the state sentence, but must serve almost 18 years of his federal time before he could be released.  He will also do his time in the federal system, where he may be safer and may be held under fewer restrictions than in the state system....

Chauvin attorney Eric Nelson had asked for 20 years, arguing that Chauvin was remorseful and would make that clear to the court.  But Chauvin, in brief remarks, made no direct apology or expression of remorse to Floyd’s family. Instead, he told the family that he wishes Floyd’s children “all the best in their life.”...

Prosecutor LeeAnn Bell asked Magnuson to give Chauvin the full 25 years possible in the plea deal, highlighting the “special responsibility” that he had as a police officer to care for the people in his custody....

Floyd’s brother Philonise also asked for the maximum possible sentence, telling Magnuson the Floyd family had “been given a life sentence.” He said afterward that he was upset that Chauvin didn’t get more time behind bars.

Chauvin’s mother, Carolyn Pawlenty, told Magnuson that her son didn’t go to work intending to kill someone. “Many things have been written about him that are totally wrong such as he’s a racist, which he isn’t, that he has no heart,” she said. “I believe it is God’s will for all of us to forgive.”

Chauvin’s guilty plea included an admission that he willfully deprived Floyd of his right to be free from unreasonable seizure, including unreasonable force by a police officer.  It also included a count for violating the rights of a Black 14-year-old whom he restrained in an unrelated case in 2017.  John Pope, now 18, told Magnuson that Chauvin “didn’t care about the outcome” of that restraint.  “By the grace of God I lived to see another day,” Pope said. “It will continue to be a part of me for the rest of my life.”

A few prior related posts:

July 7, 2022 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics | Permalink | Comments (0)

REPOSTING: Call for commentary for Federal Sentencing Reporter issue to provide "Advice for a new U.S. Sentencing Commission"

Because I care so much about the topic and because so much can get quickly forgotten this time of year, I am eager to keep reminding everyone here about this call for papers from the Federal Sentencing Reporter:

Seeking Commentaries for Federal Sentencing Reporter's October Issue to provide “Advice for a new U.S. Sentencing Commission”

Last month, President Joseph Biden announced seven nominees for the U.S. Sentencing Commission, and in early June the Senate Judiciary Committee held a confirmation hearing for this full slate of nominees.  The Commission has lacked a quorum since 2019, which has prevented the agency from amending the US Sentencing Guidelines in any way. President Biden’s nominations, if the confirmation process continues to move forward this summer, should allow an all-new Commission to get to work on federal sentencing reform matters big and small.  The editors of the Federal Sentencing Reporter are eager to invite judges, lawyers, other sentencing practitioners, legal academics, and sentencing researchers, to share “Advice for a new U.S. Sentencing Commission,” for publication in the October 2022 FSR issue.

FSR commentaries for this issue could tackle big structural issues (such as how the Commission might review and reassess the entire guidelines system), smaller statutory issues (such as how to respond to reforms Congress enacted in the FIRST STEP Act), or any other topic of interest or concern to modern federal sentencing policy and practice.  FSR welcomes advice from all perspectives, including lessons the Commission could learn from the states and other countries.  Everyone with an informed interest in federal sentencing law and practice is encouraged to submit a commentary.

FSR articles are typically brief — 2000 to 5000 words, though they can run longer — with light use of citations in the form of endnotes.  The pieces are designed to be read by busy stakeholders, including lawyers, judges, scholars, and legislators (as well as, of course, members and staff of the US Sentencing Commission).

Priority will be given to drafts submitted by July 25, 2022, and later submissions will be considered as space permits. Submissions should be sent electronically to berman.43 @ osu.edu with a clear indication of the author and the author’s professional affiliation.

July 7, 2022 in Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Politico provides new review of "Where Jan. 6 prosecutions stand, 18 months after the attack"

In this post last month, I noted the AP's interesting accounting of all the federal sentences given to January 6 rioters so far.  Now, to mark the 1.5 year anniversary of the riot, Politico has this lengthy review of all where Jan 6 matters stand.  I recommend the full piece, and here is how it starts and some of its sentencing discussion:

Eighteen months since a pro-Trump mob ransacked the Capitol and disrupted the peaceful transition of presidential power, prosecutors are closing in on another milestone: 900 arrests.

According to the latest Justice Department figures, more than 855 members of that crowd are facing charges that range from trespassing on restricted grounds to seditious conspiracy.  Prosecutors estimate that more than 2,000 people actually entered the Capitol unlawfully that day, which means hundreds more arrests are likely in the months to come.

For a year and a half, the justice system has been slowly grinding through those cases, which have taken on increasing complexity as the House Jan. 6 select committee reveals new details about then-President Donald Trump’s own role in fomenting the events of that day.

So far, 325 defendants have pleaded guilty to crimes stemming from the breach of the Capitol, the vast majority to misdemeanor crimes.  But the most crucial tests of the Justice Department’s work are still to come....

About 200 defendants have seen their cases all the way through from arrest to sentencing, with the vast majority pleading guilty to misdemeanor crimes.  As a result, sentences have skewed toward probation and home confinement, rather than significant terms of incarceration.  That’s likely to change as some of those facing more serious charges go to trial or plead guilty themselves.

In the growing number of felony plea deals and jury convictions, defendants have received months and even years of jail time.  But sentences have varied widely, in part because of the 22 different U.S. District Court judges handling the Jan. 6 cases.  The harshest sentence so far has gone to Robert Palmer, who received a 63-month jail term after pleading guilty to multiple assaults on police officers guarding the Capitol’s lower West Terrace tunnel.

Some of many prior related posts:

July 7, 2022 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (0)

Tuesday, July 05, 2022

US Sentencing Commission produces another great updated set of "Quick Facts" publications

Long-time readers have long heard me praise the US Sentencing Commission for producing a steady stream of insightful little data documents in the form of its "Quick Facts" publications (which are designed to "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format").  After finalizing its fiscal year data, the USSC typically provides updated Quick Facts, and here are some of its newest ones:

Sentencing Issues

Drugs

Firearms

Sex Offenses

Offender Groups

July 5, 2022 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines | Permalink | Comments (1)

Tuesday, June 28, 2022

Ghislaine Maxwell given 20-year federal sentence for sex trafficking for Jeffrey Epstein

In this post over the weekend, I asked in anticipation of today's high-profile sentencing, "what federal sentence for convicted sex trafficker Ghislaine Maxwell?."  Commentor tmm nailed the outcome, as reported here by the AP:

Ghislaine Maxwell, the jet-setting socialite who once consorted with royals, presidents and billionaires, was sentenced to 20 years in prison Tuesday for helping the financier Jeffrey Epstein sexually abuse underage girls.  The stiff sentence was the punctuation mark on a trial that explored the sordid rituals of a predator power couple who courted the rich and famous as they lured vulnerable girls as young as 14, and then exploited them.

Prosecutors said Epstein, who killed himself in 2019 while awaiting trial, sexually abused children hundreds of times over more than a decade, and couldn’t have done so without the help of Maxwell, his longtime companion and onetime girlfriend who they said sometimes also participated in the abuse.  In December, a jury convicted Maxwell of sex trafficking, transporting a minor to participate in illegal sex acts and two conspiracy charges.

U.S. District Judge Alison J. Nathan, who also imposed a $750,000 fine, said “a very significant sentence is necessary” and that she wanted to send an “unmistakable message” that these kinds of crimes would be punished.  Prosecutors had asked the judge to give her 30 to 55 years in prison, while the 60-year-old Maxwell’s defense sought a lenient sentence of just five years....

When she had a chance to speak, Maxwell said she empathized with the survivors and that it was her “greatest regret of my life that I ever met Jeffrey Epstein.” Maxwell called him “a manipulative, cunning and controlling man who lived a profoundly compartmentalized life,” echoing her defense attorneys’ assertions that Epstein was the true mastermind. Maxwell, who denies abusing anyone, said she hoped that her conviction and her “unusual incarceration” bring some “measure of peace and finality.”

Nathan refused to let Maxwell escape culpability, making clear that Maxwell was being punished for her own actions, not Epstein’s. She called the crimes “heinous and predatory” and said Maxwell as a sophisticated adult woman provided the veneer of safety as she “normalized” sexual abuse through her involvement, encouragement and instruction....

Assistant U.S. Attorney Alison Moe recounted how Maxwell subjected girls to “horrifying nightmares” by taking them to Epstein. “They were partners in crime together and they molested these kids together,” she said, calling Maxwell “a person who was indifferent to the suffering of other human beings.”

Epstein and Maxwell’s associations with some of the world’s most famous people were not a prominent part of the trial, but mentions of friends like Bill Clinton, Donald Trump and Britain’s Prince Andrew showed how the pair exploited their connections to impress their prey.

Over the past 17 years, scores of women have accused Epstein of abuse them, with many describing Maxwell as the madam who recruited them.  The trial, though, revolved around allegations from only a handful of those women.  Four testified that they were abused as teens in the 1990s and early 2000s at Epstein’s mansions in Florida, New York, New Mexico and the Virgin Islands....

At least eight women submitted letters to the judge, describing the sexual abuse they said they endured for having met Maxwell and Epstein.  Six of Maxwell’s seven living siblings wrote to plead for leniency.  Maxwell’s fellow inmate also submitted a letter describing how Maxwell has helped to educate other inmates over the last two years.  Anne Holve and Philip Maxwell, her eldest siblings, wrote that her relationship with Epstein began soon after the 1991 death of their father, the British newspaper magnate Robert Maxwell.

Based on the sentencing filings noted in this prior post, I believe the Government argued the applicable federal sentencing guideline range was 360 month-life, but this CBS article indicates that Judge Nathan concluded the proper guideline range was 188-235 months.  So, by adopting a more lenient guideline calculation, Judge Nathan technically gave Maxwell and above-guideline sentence.

Prior related posts:

June 28, 2022 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Sex Offender Sentencing | Permalink | Comments (2)

Sunday, June 26, 2022

You be the judge: what federal sentence for convicted sex trafficker Ghislaine Maxwell?

A high-profile sentencing is scheduled for NYC federal court this coming week.  This CNN article from last last, reporting on prosecutors' sentencing filing, provides a partial preview:

Federal prosecutors asked a judge in a court filing Wednesday to sentence Ghislaine Maxwell to 30 to 55 years in prison for sex trafficking a minor and other charges related to a sprawling conspiracy to abuse young girls with the wealthy financier Jeffrey Epstein.

"Maxwell was an adult who made her own choices. She made the choice to sexually exploit numerous underage girls. She made the choice to conspire with Epstein for years, working as partners in crime and causing devastating harm to vulnerable victims," prosecutors wrote in the sentencing memo. "She should be held accountable for her disturbing role in an extensive child exploitation scheme."

Last week, Maxwell's lawyers asked a judge to sentence her to between 4.25 and 5.25 years in prison, saying her difficult childhood made her vulnerable to Epstein and that she shouldn't face a harsh sentence because of his actions. "But this Court cannot sentence Ms. Maxwell as if she were a proxy for Epstein simply because Epstein is no longer here," her attorneys wrote in their sentencing recommendation....

Epstein, who pleaded guilty in 2008 to state prostitution charges, was indicted on federal sex trafficking charges in July 2019 but died by suicide in prison a month later. Maxwell, his confidante and former girlfriend, was arrested a year afterward and has been held in jail since. In the sentencing memo, the prosecution wrote that the defense's argument was "absurd and offensive."

"The lenient sentence the defendant seeks would send the message that there is one system of laws for the rich and powerful, and another set for everyone else," prosecutors wrote.... 

Maxwell, 60, was found guilty of five federal charges in December: sex trafficking of a minor, transporting a minor with the intent to engage in criminal sexual activity and three related counts of conspiracy.  However, she will only be sentenced on three counts after the judge presiding over her case agreed that two of the conspiracy counts she faced were repetitive.

The probation department recommended a 20-year sentence, below the sentencing guidelines. 

At her trial late last year, prosecutors argued Maxwell and Epstein conspired to set up a scheme to lure young girls into sexual relationships with Epstein from 1994 to 2004 in New York, Florida, New Mexico and the US Virgin Islands. Four women testified during the trial that Epstein abused them and that Maxwell facilitated the abuse and sometimes participated in it as well.

Her defense, meanwhile, said she was a "scapegoat" for Epstein's actions and attacked the memories and motivations of the women who said they were sexually abused.

The federal prosecutors' sentencing filing, which is available here, contends that "the applicable sentencing range is 360 months to life imprisonment [but] the statutory maximum penalty is 660 months’ imprisonment, [so] the Guidelines range becomes 360 to 660 months’ imprisonment."  But the defense sentencing memorandum, which is available here, requests "that the Court grant Ms. Maxwell a significant variance below the advisory Sentencing Guidelines range of 292-365 months and below the 240-month sentence recommended by the Probation Department."

But, as of this writing on the morning of June 26, it now seem there is a chance the sentencing will not go forward this week.  This Reuters article explains:

Ghislaine Maxwell has been put on suicide watch at a Brooklyn jail, and may seek to delay her Tuesday sentencing for aiding Jeffrey Epstein's sexual abuse of underage girls, her lawyer said on Saturday night.  In a letter to the judge overseeing Maxwell's case, Maxwell's lawyer, Bobbi Sternheim, said her client is "unable to properly prepare, for sentencing," after officials at the Metropolitan Detention Center on Friday declared the suicide watch and abruptly moved Maxwell to solitary confinement.

Sternheim said Maxwell was given a "suicide smock," and her clothing, toothpaste, soap and legal papers were taken away. The lawyer also said Maxwell "is not suicidal," a conclusion she said a psychologist who evaluated the 60-year-old British socialite on Saturday morning also reached.

"If Ms. Maxwell remains on suicide watch, is prohibited from reviewing legal materials prior to sentencing, becomes sleep deprived, and is denied sufficient time to meet with and confer with counsel, we will be formally moving on Monday for an adjournment," Sternheim wrote.

Prior related post:

June 26, 2022 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Sex Offender Sentencing | Permalink | Comments (1)

Wednesday, June 22, 2022

Call for commentary for Federal Sentencing Reporter issue to provide "Advice for a new U.S. Sentencing Commission"

I am pleased to be able to spotlight here a call for papers from the Federal Sentencing Reporter:

Seeking Commentaries for Federal Sentencing Reporter's October Issue to provide “Advice for a new U.S. Sentencing Commission”

Last month, President Joseph Biden announced seven nominees for the U.S. Sentencing Commission, and in early June the Senate Judiciary Committee held a confirmation hearing for this full slate of nominees.  The Commission has lacked a quorum since 2019, which has prevented the agency from amending the US Sentencing Guidelines in any way. President Biden’s nominations, if the confirmation process continues to move forward this summer, should allow an all-new Commission to get to work on federal sentencing reform matters big and small.  The editors of the Federal Sentencing Reporter are eager to invite judges, lawyers, other sentencing practitioners, legal academics, and sentencing researchers, to share “Advice for a new U.S. Sentencing Commission,” for publication in the October 2022 FSR issue.

FSR commentaries for this issue could tackle big structural issues (such as how the Commission might review and reassess the entire guidelines system), smaller statutory issues (such as how to respond to reforms Congress enacted in the FIRST STEP Act), or any other topic of interest or concern to modern federal sentencing policy and practice.  FSR welcomes advice from all perspectives, including lessons the Commission could learn from the states and other countries.  Everyone with an informed interest in federal sentencing law and practice is encouraged to submit a commentary.

FSR articles are typically brief — 2000 to 5000 words, though they can run longer — with light use of citations in the form of endnotes.  The pieces are designed to be read by busy stakeholders, including lawyers, judges, scholars, and legislators (as well as, of course, members and staff of the US Sentencing Commission).

Priority will be given to drafts submitted by July 25, 2022, and later submissions will be considered as space permits. Submissions should be sent electronically to berman.43 @ osu.edu with a clear indication of the author and the author’s professional affiliation.

June 22, 2022 in Federal Sentencing Guidelines, Recommended reading, Who Sentences | Permalink | Comments (2)

Thursday, June 09, 2022

Notable coverage of supposed "new breed" of prison consultants

I have been following the federal criminal justice system for the better part of 30 years, and throughout there have always been various types of experts who seek to help defendants with sentence mitigation and preparation for prison (especially in the white-collar universe where greater resources are available to pay for these kinds of services).  Still, every now and again, the press seems eager to make much of the phenomenon of so-called "prison consultants" as, for example, in a 2020 Town & Country  piece, "Inside the World of Prison Consultants Who Prepare White Collar Criminals to Do Time." 

The New York Times has long been keen on the prison consultant beat as evidenced by older articles like a 2009 piece headlined "Consultants Are Providing High-Profile Inmates a Game Plan for Coping" and a 2012 piece headlined "Making Crime Pay."  This week, the Gray Lady has this very long piece in this genre appearing in its magazine under this full headline "Want to Do Less Time? A Prison Consultant Might Be Able to Help. For a price, a new breed of fixer is teaching convicts how to reduce their sentence, get placed in a better facility — and make the most of their months behind bars."  Though I am not sure why prison consultants are now described as a "new breed of fixer," I am sure this lengthy article is still worth a full read.  Here are excerpts: 

After a prominent felon is sentenced, a spate of stories often appear about these backstage fixers for the wealthy, consultants who can help get a client into prisons that one might prefer — say, a prison that has superior schooling or CrossFit-level gyms or lenient furlough policies or better-paying jobs or other refined specialties.  The federal prison in Otisville, N.Y., for example, is also known as “federal Jewish heaven” because of its good kosher food (decent gefilte fish, they say, and the rugelach’s not bad).  When those Varsity Blues parents were busted for paying backdoor operatives to engineer their kids’ college admissions, it was also reported that many hired prison consultants to game out the aftermath.

[Justin] Paperny’s business is a natural market outgrowth of a continuing and profound shift in America’s judicial system.  Almost everyone facing charges is forced to plead guilty (or face an angry prosecutor who will take you to trial).  In 2021, 98.3 percent of federal cases ended up as plea bargains.  It’s arguable that in our era of procedural dramas and endless “Law & Order” reruns, speedy and public trials are more common on television than in real-life courthouses.  What people like [Hugo] Mejia have to deal with as they await sentencing is a lot of logistics.

The idea of a prison consultant might conjure an image of an insider broker or fixer, but they’re really more like an SAT tutor — someone who understands test logic and the nuances of unwritten rules. Yet prison consulting also involves dealing with a desolate human being who has lost almost everything — friends, family, money, reputation — and done it in such a way that no one gives a damn.  So they’re also a paid-for best friend, plying their clients with Tony Robbins-style motivational insights, occasionally mixed with powerful sessions about the nature of guilt and shame....

On television, the journey to prison is nearly instantaneous: a jump cut to a slamming cell door. But in the real world, it’s a set of steps, routine bureaucratic actions that involve interviews, numerous forms to complete and dates with officials. A lawyer is your legal guide to staying out of prison, but once that becomes inevitable, a prison consultant is there to chaperone you through the bureaucracies that will eventually land you in your new home, easing your entry into incarceration — and sometimes even returning you to the outside, utterly changed....

One of the first things Paperny advises a client like Mejia to do is to stop [minimizing the offense], especially before sentencing.  You pleaded guilty already.  You did it.  Own it — because the vamping will almost certainly annoy any judge or civil servant who hears it, and you’ll wind up with a much longer sentence.  That’s arguably the most crucial piece of advice that Paperny provides to his clients, for the simple reason that when you’re going to prison, you have to formally tell your story to all kinds of people.

The storytelling officially begins a few weeks after a guilty plea (or a conviction by trial) in a sit-down interview with a law-enforcement officer whose specialty is writing up a pre-sentencing report, which will be given to the presiding judge.  The descriptions of the crime come largely from the plea agreement, which is, naturally, centered on the proposition that you are a heinous criminal and a moral fugitive.  Think of a Wikipedia biography that tells the story of the worst moment of your life, with everything else about you salted away in footnotes.  This is what the sentencing judge will read before deciding precisely how long you will be confined — and it’s a story that will follow you throughout your stay with the state.

“They call the pre-sentencing report the Bible in prison, because it is one of the first things a case manager or counselor will rely upon,” Paperny said. “It will influence early release, your half-house time, your bunk, your job and so on.”

June 9, 2022 in Federal Sentencing Guidelines, Prisons and prisoners, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (2)

Wednesday, June 08, 2022

Senate conducts hearing for nominees for US Sentencing Commission

Four weeks ago, as discussed here, Prez Biden finally made nominations to the US Sentencing Commission.  Due to a lack of commissioners, the US Sentencing Commission has lacked a quorum needed to fully function for 3.5 years, and the USSC has not had complete set of commissioners firmly in place for nearly decade.  But, now moving relatively swiftly, the US Senate Judiciary Committee today held a confirmation hearing for Prez Biden's seven USSC nominees.

Here is a link to the hearing, which runs about two hours and has a number of interesting elements.  Hard-core federal sentencing fans will likely consider the full hearing worth watching.  For a quick review, FAMM's Shanna Rifkin provided this live tweeting of the hearing, which captures some of the highlights.  And here is a round-up of some press coverage:

From Bloomberg Law, "Sentencing Commission Vetting Echoes GOP Grilling of Jackson"

From Law360, "Senate Panel Considers Long-Awaited Sentencing Noms"

From Reuters, "Biden's sentencing panel noms vow to implement criminal justice reform law"

There was some sharp questioning of a few of the nominees, especially from some GOP Senators, and Senator Josh Hawley seemed to indicate that he would not support at least one of the nominees.  But the overall tenor of the hearing suggested that this slate of nominees had considerable support from the Committee and is on a path to eventual confirmation.

Though this hearing means we are one step closer to having a functional US Sentencing Commission, it is still unclear exactly when there will be a committee vote and then a full Senate vote on these nominees.  I am hopeful these votes might take place this summer, but I should know better than to make any predictions about the pace of work by Congress.

June 8, 2022 in Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)