Sentencing Law and Policy

US Sentencing Commission notices public meeting for possible additional proposed guideline amendments (and releases data on past ones)

When the US Sentencing Commission's promulgated a set of proposed guideline amendments last month (details here), it also indicated in a press release that more proposed amendments might be in the works.  Specifically, here were the words then of USSC Chair Judge Carlton Reeves:  “Over the next month, the Commission will consider whether to publish additional proposals that reflect the public comment, stakeholder input, and feedback from judges that we have received over the last year -- including at the roundtables we have held in recent months on drug sentencing and supervised release.”

Sure enough, today the USSC sent out a formal "Notice of Public Meeting," which provides in pertent parts as follows:

The Commission scheduled a public meeting for January 24, 2025 at 1:00 pm (EST). The meeting will be streamed live. The agenda is as follows:

• Vote to Adopt December 2024 Meeting Minutes
• Report from the Chair
• Possible Vote to Publish Additional Proposed Guideline Amendments and Issues for Comment

The USSC also noted in its email about the public meeting that it has recently released two separate data briefings relating to: (1) the career offender guideline at §4B1.1 and (2) the treatment of machinegun conversion devices under §2K2.1.  As the USSC explained via email, this "information presented by Commission staff is intended to facilitate public discussion of the amendments proposed by the Commission in December."

"Booker at 20": reflections on the impact and import of plea agreements

As set out in this prior post, I have started a series of posts here on the topic of "Booker at 20," partially in conjunction with a forthcoming issue of the Federal Sentencing Reporter on the topic.  A few FSR authors for that issue have allowed me to post here some modified excerpts from their forthcoming articles, and today's entry (on Booker's actual 20th anniversary) comes from Sam Merchant: 

For understandable reasons, Booker was expected to expand judicial discretion at sentencing.  But around 98% of federal criminal cases are resolved through guilty pleas, and around 71% of those involve written plea agreements. These agreements often dictate sentencing outcomes, raising questions about the true extent of judicial discretion.

Despite their ubiquity, most plea agreements remain opaque to outside observers.  The U.S. Sentencing Commission collects data on the reasons that judges deviate from guideline ranges but it does not systematically collect that information for sentences within guideline ranges (where plea agreements frequently play a decisive role).  As long as the parties can confabulate a sentence that fits within a guideline range, the true reasons for the sentence may be forever obscured. 

This is a potential problem, particularly in cases I’ve studied involving “fictional pleas” or “hidden departures,” where the plea and guideline range don’t match the real offense conduct.  I and others have identified this in around a third of federal cases (conservatively).  While I’m not necessarily against the practice, it does undermine the stated goals of uniformity and transparency.  (Of course, these might not actually be desirable goals, but they are included in Congress’s stated goals.)  And when parties withhold information from judges, it directly challenges the traditional story about the extent of post-Booker judicial discretion.  The system we’ve created gives sentences the appearance of being guided by Article I and Article III, when in reality, the influence of Article II is underappreciated.  Post-Booker, there is a sense that “sentencing is for judges, so if a judge imposed the sentence, I’m sure everything is fine.”

There is probably little interest in changing the framework of fictions we’ve created.  Members of Congress can continue appearing “tough on crime,” knowing that their laws will be (inconsistently) circumvented.  Prosecutors can threaten astronomical but ultimately fictional criminal exposure to induce pleas.  Defendants plead guilty for less than that fictional exposure, often for conduct they didn’t actually commit.  Busy judges accept those pleas.  The significant investment required to reform the system and hold more trials is almost certainly politically untenable.  So the system prioritizes efficiency over truth and fairness.  The system churns on — efficient, opaque, and quietly complicit in its own contradictions, perpetuating a framework of fictions that seems to primarily serve the designers and operators.

Brown paper bags come to mind. In the 1950s and 1960s, most American city councils passed laws that prohibited the consumption of alcohol in public places.  Police lacked the capacity to prosecute every offender, but ignoring obvious violations would foster disrespect for the law.  In an act of “ghetto diplomacy,” consumers began putting paper bags over their beverages.  Police then had the discretion to look the other way and focus resources on more serious crimes. Passersby had plausible deniability — maybe there isn’t really an alcoholic beverage inside that bag? City leaders could take the win for cleaning up the streets, at least well enough for government work.

Just as the participants agreed and society accepted the bag as a willful delusion, the criminal system gives us plausible deniability about how “justice” is administered.  The participants do what they can to keep cases moving, and enough members of the public don’t want to know or simply don’t care what’s inside. Perhaps it’s not justice the public seeks, but the illusion of it, wrapped in systems that give us permission to look the other way.

Prior post in this series:

• "Booker at 20": introducing a coming series of posts (and more)
• "Booker at 20": has much really changed in federal sentencing? 

"New Acquitted Conduct Guideline: An Analysis"

The title of this post is the title of this recent New York Law Journal essay by Paul Shechtman. The piece merits a full read, as it highlights recent developments on acquitted conduct sentencing and various aspects of the new guideline.  The closing paragraphs highlight some themes:

May a judge consider acquitted conduct in deciding where within the guideline range a defendant should be sentenced? May she vary upward from the guideline range based on acquitted conduct?  In neither instance is the judge including acquitted conduct in calculating relevant conduct, but an affirmative answer to these questions would end run the amendment.

Notably, along with the amendment to §1B1.3, the Commission amended §6A1.3 to reiterate that “nothing in the Guidelines Manual abrogates a court’s authority under 18 U.S.C. §3661.”  That section states that “[n]o limitation may be placed on information…a court…may receive and consider for the purpose of imposing an appropriate sentence.”

If ever a Sentencing Guideline amendment is well intentioned but perplexing, the acquitted conduct amendment may be it.  Its saving grace may be that in fiscal year 2022, of the 62,529 sentenced individuals, 1,613 were sentenced after trial (2.5%) and, of those, only 286 (.04% of all sentenced defendants) were acquitted of one or more offense or found guilty of only a lesser-included offense.  Thus, the potential issues are nettlesome, but won’t arise often.

US Sentencing Commission now officially without two of its seven voting members

With help from a colleague, I can report on significant news relating to the US Sentencing Commission that goes along with the new Congress.  As reported in this post, back in August 4, 2022, the Senate confirmed Prez Biden’s seven nominees to the US Sentencing Commission, fully reconstituting the Commission after many years of being down some members and after 3+ years without a quorum.  Since August 2022, the Commission has been fully loaded as well as quite active.  The seven commissioners were confirmed for staggered terms, with two of those terms — for former Judge John Gleeson and current Judge Claria Horn Boom — expiring October 31, 2023.  President Biden renominated both Judges Gleeson and Boom, and both nominations were reported favorably out of the Senate Judiciary Committee back in April 2024.  Judge Glesson’s nomination was reported by a bare majority, and Judge Boom’s nomination was reported unanimously. 
 
Both Judge Gleeson and Judge Boom were able to continue to serve after the expiration of their terms, pursuant to 28 U.S.C. § 992. That law authorized their continued service until "the date on which the Congress adjourns sine die to end the session of Congress that commences after the date on which the member’s term expired.”  But on Friday, January 3, 2025 at noon, Congress adjourned the second session of the 118th Congress sine die, the nominations of Judges Gleeson and Boom were returned to the White House, and, pursuant to section 992, the terms of these two Commissioners ended.  This development leaves the Commission now with only five voting members, three Democrats and two Republicans.  Pursuant to 28 U.S.C. § 994, it will require four of these five — a supermajority — to vote for any proposed amendments to the Sentencing Guidelines for those proposed amendments to be promulgated and sent to Congress.

The reduction in the number of active members on the Commission raise lots of questions, including whether President Trump will make nominations to the Commission to fill the two vacancies anytime soon, whether the Commission will move forward with additional proposed amendments to the drug guidelines and others as hinted at at their December public meeting (when they already published notable proposed amendments), whether and how the need for a supermajority of commissioners to amend the Guidelines and for other actions will impact the Commission’s agenda and plans, how Chair Reeves will guide this new Commission configuration to work with the new Administration and the new leadership of the 119th Congress and its two judiciary committees, and many more.  (Speaking of the new Administration, I am tempted to joke that whoever is gearing up DOGE might consider taking  premaure credit for the downsizing of Commission.  Jokes aside, the Commission always seemed more productive and effective when fully staffed.)

In the next few months, some of these questions will begin to be answered, and Commission membership dynamics are sure to impact federal sentencing law and policy in this new year and beyond.  Stay tuned.

Facing guidelines recommending decades in prison, former Senator Menendez requests "sentence that relies heavily on alternatives to incarceration"

As reported in this New York Times piece, weeks "before Robert Menendez, New Jersey’s disgraced former U.S. senator, is scheduled to be sentenced for corruption, his lawyers submitted an emotion-laden appeal for leniency based on what they depicted as Mr. Menendez’s hardscrabble upbringing, life of service and devotion to family."  Here is more about the sentencing filing:

As they did during Mr. Menendez’s two-month bribery trial in Manhattan, [his lawyers] suggested that their client’s greatest failing was being led astray by a conniving wife. Nadine Menendez, the former senator’s wife, was charged with her husband with conspiring to trade his political influence for bribes of cash, gold bars and a Mercedes-Benz convertible. Her trial is expected to start next month....

“The evidence showed that Senator Menendez was unaware of activities that Nadine was undertaking, including the receipt and sale of gold bars by Nadine, and cash she stored in her locked closet and her safe deposit box,” the lawyers wrote in their filing.

And in a letter of support also filed on Thursday, Mr. Menendez’s daughter, Alicia Menendez, a high-profile anchor on the cable news network MSNBC, hinted at the sacrifices her father continued to make for his wife, who was being treated for breast cancer....

Her letter is among more than 120 filed on behalf of Mr. Menendez, part of an attempt to justify a prison term far shorter than the 12 years recommended by the court’s probation department. The U.S. attorney’s office for the Southern District of New York, which prosecuted Mr. Menendez, is expected to disclose the government’s sentencing recommendation in the coming weeks....

In Thursday’s filing, the former senator’s lawyers argued that the probation department’s recommendation of a 12-year prison term was “draconian — likely a life and death sentence for someone of Bob’s age and condition.” [The lawyers] suggested that the guidelines instead merited a sentence of no more than 27 months — and even that, they wrote, was too long. They urged Judge Stein to consider a period of imprisonment of less than 27 months paired with “at least two years’ rigorous community service.”

“He is certain never to commit future offenses,” the lawyers wrote about Mr. Menendez. “And his current state — stripped of office and living under a permanent shadow of disgrace and mockery — are more than sufficient to reflect the seriousness of the offenses and to promote respect for the law.”

The full 52-page sentencing filing is available at this link, and concludes with this paragraph:

For the foregoing reasons, the sentencing factors set out in Section 3553(a), as applied to the circumstances of this defendant and case, justify a substantially below-Guidelines sentence that credits Senator Menendez’s lifetime of good deeds and good character, his low likelihood of offending in the future, and the punishment he has already sustained due to his conviction.  As urged by a friend and former member of the Puerto Rican Senate Roberto L. Prats, “please consider that you are sentencing a good man who devoted his entire professional career to serving others. In doing so, he touched the heart and soul of many citizens, me included, asking for nothing in return.” Ex. U (Letter submitted by Roberto L. Prats, Esq.).  We respectfully submit that the Court should impose a sentence that relies heavily on alternatives to incarceration, as such a sentence is sufficient but not greater than necessary to accomplish the purposes of sentencing under 18 U.S.C. §3553(a).

New policy brief on EQUAL Act assembles notable data on crack and powder cocaine sentencing

This press release, headlined "Princeton Policy Advocacy Clinic Students Release Analysis of Federal Crack-Powder Cocaine Sentencing Disparities, Draw Bipartisan Praise," provides a partial summary of this great new policy brief.  Here is part of the press release:

[Detailed crack offense sentencing] data come from a nonpartisan policy brief written by undergraduate students as part of the Princeton School of Public and International Affairs’ Policy Advocacy Clinic, analyzing the potential impacts of passage of the Eliminating a Quantifiably Unjust Application of the Law (EQUAL) Act.  First introduced in 2021 and then re-introduced in 2023, both times with strong bipartisan support, the EQUAL Act would eliminate the 18-to-1 federal sentencing disparity between crack cocaine and powder cocaine offenses and authorize the resentencing of people previously convicted of crack offenses.

In their policy brief, Emilie Chau ’25, Nate Howard ’25, and Jennifer Melo ’25 present a history of the sentencing disparity, aggregate data on federal convictions and incarceration for cocaine offenses, and analyze demographic information of those convicted.  They also share a projection by the U.S. Sentencing Commission that passage of the EQUAL Act would reduce the average sentence of newly convicted people by 31 months and cut the average sentence of nearly all of the 7,800 people eligible by more than 6 years.

I recommend the policy brief in full, as it presents lots of notable data on federal sentencing from Fiscal Year 2015 to 2023 quite effectively.  It also concludes with this notable point about state sentencing for cocaine offenses:

Forty-one states have no sentencing disparity between crack and powder cocaine, and of the remaining nine, seven of them have a disparity that is lower than the 18-to-1 ratio at the federal level.  This means that only two states, Missouri and New Hampshire, have sentencing disparities that are higher than the federal level.  It is also striking that political partisanship does not appear to be determinative of cocaine sentencing policy.  The vast majority of red states, blue states and purple states have no sentencing disparity.

US Sentencing Commission votes on (first?) set of notable "Proposed Amendments to the Sentencing Guidelines (Preliminary)"

As previously noted here, the US Sentencing Commission held a public meeting this afternoon which included unanimous votes to "Publish Proposed Guideline Amendments and Issues for Comment."  Interestingly, before the vote on the proposed amendment, the "Report from the Chair" included a statement by USSC Chair Judge Carlton Reeves that there could be additional future proposed amendments coming from the Commission in January related to the drug guidelines and supervised release issues.  For this meeting, there were five proposed amendments on the topics of simplification, criminal hisotry, firearm offenses, circuit conflicts and retroactivity.  I will update this post when the USSC provides links to its proposals.

UPDATE:  Here is the main text of this Commission press release discussing its proposed amendments:

Today the bipartisan United States Sentencing Commission voted unanimously to publish proposed amendments to the federal sentencing guidelines for the amendment cycle ending May 1, 2025 (watch the meeting).  These proposals stem from public input the Commission has received in recent years, including more than 1,200 pages of comments on what work the agency should prioritize this amendment cycle. Among today’s proposals are those that would: 

• create an alternative to the “categorical approach” used in the career offender guideline to determine whether a conviction qualifies a defendant for enhanced penalties; 
• simplify the “three-step” approach that courts currently use when applying the guidelines; 
• address the guidelines’ treatment of devices designed to convert firearms into fully automatic weapons; 
• add a mens rea requirement to the sentencing enhancement for use of stolen firearms; and 
• resolve certain circuit conflicts regarding guideline application.

“We look forward to hearing from the public about these proposals in light of the Commission’s statutory obligation to promote fairness in sentencing, end unwarranted disparities, and ensure sentences reflect the latest data, research, and science,” said Judge Carlton W. Reeves, Chair of the Commission.  “Over the next month, the Commission will consider whether to publish additional proposals that reflect the public comment, stakeholder input, and feedback from judges that we have received over the last year -- including at the roundtables we have held in recent months on drug sentencing and supervised release.”

The Commission is seeking comment on these proposals through February 3, 2025 with a reply period closing on February 18, 2025. The public is encouraged to submit comment through the agency’s comment portal available here.  A public hearing will be scheduled on these proposals in early 2025.  Official text of proposed amendments and issues for comment will also be published in a forthcoming edition of the Federal Register. “We welcome your comments,” said Chair Reeves.

This USSC webpage provides a helpful summary of the coverage of the proposed amendments.  The full "reader-friendly" text of these proposals clocks in at 665 pages (thank goodness it did not turn evil with just one more page)!

Lots of news and new resources from the US Sentencing Commission

Via email yesterday afternoon, I received news of a number of new items coming from the US Sentencing Commission.  Drawing text and links from the email, here are just some of items with a few links:

Notice of Public Meeting

The Commission has scheduled a public meeting for Thursday, December 19, 2024 at 2:00 pm (EST)he meeting will be held at the Thurgood Marshall Federal Judiciary Building, One Columbus Circle, N.E., in Suite 2-500 (South Lobby).  The Commission will livestream and record this event.

The agenda follows:

• Vote to Adopt August 2024 Meeting Minutes
• Report from the Chair
• Possible Vote to Publish Proposed Guideline Amendments and Issues for Comment....

Preliminary FY24 Fourth Quarterly Data Report 

The Commission released its first full look at the FY24 federal sentencing caseload.

Preliminary Data Highlights

• In FY24, 61,137 individuals were sentenced federally — representing a decrease from the previous fiscal year.
• Nearly equal proportions of individuals were sentenced for a drug (30.0%) or immigration (29.7%) offense.
• Methamphetamine was the most common drug involved in federal drug offenses (45.8%) followed by fentanyl (21.8%) and powder cocaine (19.4%). 

2023 Firearms Amendments

Commission staff break down the 2023 changes and additions to the firearms guideline, including new offenses and increased penalties. They answer frequently asked guideline questions about proliferation of firearm switches and auto sears, and more.

Robbery Primer

This primer offers an overview of statutes, sentencing guidelines, and case law related to selected federal robbery offenses.

Based on "the will of Congress," Third Circuit panel adheres to prior ruling limiting ground for compassionate release

I noted in this recent post that a Sixth Circuit panel heard oral argument this past week to consider its precedent limiting grounds for compassionate release in light of last year's US Sentencing Commission guideline amendment allowing some "changes in the law" to serve as basis for sentence reduction under § 3582(c)(1)(A)(i).  In that post, I explained that I thought this issue of statutory interpretation should be fairly straight forward for any and all true textualists.  Today, a panel ruling form the Third Circuit in US v. Rutherford, No. 23-1904 (3d Cir. Nov. 1, 2024) (available here), reinforces my view.  The panel in Rutherford rules against the defendant not based on any determinative text, but rather based on its belief as to "the will of Congress":

We agree with the government that subsection (b)(6) in the amended Policy Statement, as applied to the First Step Act’s modification of § 924(c), conflicts with the will of Congress and thus cannot be considered in determining a prisoner’s eligibility for compassionate release.  Congress explicitly made the First Step Act’s change to § 924(c) nonretroactive.  Pub. L. No. 115-391, § 403(b), 132 Stat. 5194, 5222.  And, in Andrews, we held that it would be inconsistent “with [the] pertinent provisions of [the First Step Act],” 28 U.S.C. § 994(a), to allow the amended version of § 924(c) to be considered in the compassionate release context because “Congress specifically decided that the changes to the § 924(c) mandatory minimums would not apply to people who had already been sentenced.” Andrews, 12 F.4th at 261.  

Besides the non-textual nature of divining the "will" of Congress to rule against a defendant, this holding conflates Congress's nonretoractivity decisions in the First Step Act with its decision, in the very same Act, to expand access to compassionate release and to keep in place the broad parameters of USSC authority to set terms for compassionate release.  There is nothing at all "inconsistent" with Congress saying not everyone should automatically retroactively benefit from a particular change in law and the USSC saying that judges can consider a change in law for a select few pursuing another legal remedy.  Put more clearly and directly, the USSC's policy statement regarding compassionate release does not formally or functionally make the First Step Act change to § 924(c) retroactive to anyone, and so it is in no way inconsistent with Congress's decision not to make that change retroactive to everyone. 

I could go on and on, but Rutherford ultimately stands as another telling example of the limits of textualism when a criminal defendant is the one stressing that the text Congress enacted is in his favor.  Even if text is clear (as I think it is here), courts are ready and able to say that the "will" of Congress is more important than the text.  (Notably, the Rutherford decision seem to think the "will" of Congress only makes it a problem for district courts to consider the § 924(c) change in law as part of a compassionate release motion; other changes in law would seemingly still be permissible considerations under the USSC's policy statement.) 

I assume a motion for an en banc review in Rutherford will be next up in the Third Circuit, and it will be interesting to see if any textualists elsewhere on that court might be troubled by the panel's reliance on congressional "will" over congressional text.  A Fifth Circuit panel has gone the other way, but I surmise there could still be full court consideration there.  And the Sixth Circuit, as well as a few other circuits, may also weigh in before SCOTUS may be inclined to take up this issue.  I suspect SCOTUS review is inevitable, with "when" perhaps more of an uncertainty than "if." 

Most recent related posts:

• Split Fifth Circuit panel holds that "changes in the law" can be a basis for sentence reduction under § 3582(c)(1)(A)(i) 
• Previewing latest cases before circuit court on USSC guideline allowing some "changes in the law" to serve as basis for sentence reduction under § 3582(c)(1)(A)(i) 

Once again, a November starts, the new Guidelines are here, the new Guidelines are here!!

Though I have made this old reference many times before, November 1 still gets me thinking of this silly scene from "The Jerk" in which which Steve Martin's character is so excited about the new phonebook, which he says means "things are going to start happening" now.  I am not sure if anyone even prints phonebooks anymore; I am sure, in the federal sentencing world, it is still exciting when the "new book," the latest official revised version of the US Sentencing Guidelines, becomes official and effective on November 1. 

Excitingly, the US Sentencing Commission sent out an email yesterday highlighting some notable new resources related to the new guidelines. Here is part of the text and links from this email: 

What's New In The 2024 Manual?

Amendment 826 (Acquitted Conduct)

• Amendment-In-Brief Handout
• Sentencing Practice Talk Podcast

Amendment 827 (Loss Calculation)

• Amendment-In-Brief Handout
• Sentencing Practice Talk Podcast

Amendment 829 (Youthful Individuals)

• Amendment-In-Brief Handout
• Sentencing Practice Talk Podcast

... and more!

Learn about all of this year's amendments in the Reader-Friendly or review the quick summary of changes inside the front cover of the printed manual. 

The Commission has parked all six segments of the USSC podcast described as a "Guideline Amendments Miniseries" are available at this link.  Though there are a number of interesting elements to these amendments, they are all relatively modest in their particulars, especially as compared to the many more consequential changes in the 2023 Guideline amendment cycle. 

Interestingly, these may be the first set of amendments in which we do not know, at the time of implementation, if any could end up retroactive.  After gathering comment and conducting a public hearing in July on this topic, the Commission in August announced at a public meeting that it would "not be voting on retroactivity" while it worked on "clear principles that will guide its approach to retroactivity."  I do not know if the Commission is making progress on this front, but I do not know that amendments are not retroactive unless and until the Commission votes to formally make them retroactive. 

Thanks to cooperation, former FTX executive avoids prison time even though Guidelines recommended LWOP

As reported in this CNBC article, "[f]ormer FTX executive Nishad Singh was sentenced to time served and three years of supervised release on Wednesday, becoming the fourth ex-employee of the collapsed crypto exchange to be punished. Singh was also ordered to forfeit $11 billion."  Here is more:

Singh faced a maximum sentence of 75 years but New York Judge Lewis Kaplan noted his cooperation with the government as “remarkable” and said he was entirely persuaded that Singh’s involvement with the fraud was far more limited than that of FTX founder Sam Bankman-Fried or Caroline Ellison, the former CEO of sister hedge fund Alameda Research.

Ellison was the star witness in the prosecution of Bankman-Fried and recently received a two-year prison sentence.

Singh, who was FTX’s head of engineering, pleaded guilty early last year to six criminal charges, including conspiracy to commit securities fraud, conspiracy to commit money laundering and conspiracy to violate campaign finance laws.

On Wednesday, Singh delivered a statement to the Court and said in a soft voice that he had strayed from his values and didn’t expect forgiveness. He said that assisting in the government’s investigation gave him purpose....

FTX spiraled into bankruptcy in Nov. 2022, after the crypto exchange couldn’t meet customers’ withdrawal demands and allegedly stole $8 billion in client funds. In March, Bankman-Fried was sentenced to 25 years in prison and ordered to pay $11 billion....

Prosecutors noted that they met with Singh on at least 24 occasions for multiple hours and that he demonstrated “earnest remorse and eagerness to assist,” as well as “brought to the Government’s attention criminal conduct that the Government was not aware of and, in some cases, may have never discovered but for Singh’s cooperation.”

Nicolas Roos, one of the prosecutors in the trial, noted that the campaign finance scheme was “totally unknown” by the government and that Singh “exclusively brought” details of the arrangement to the government....  Roos told Judge Kaplan that leniency “would send an important message.” In Kaplan’s reading of the sentencing, he told the defendant, “You did the right thing.”

Notably, this report on Singh's sentencing makes no mention of his recommended federal sentencing guideline range, no doubt because nobody gave it any mind.  But, as this government sentencing filing noted, for Singh, the "Probation Office calculate[d] the otherwise applicable Guidelines sentence to be life imprisonment, based on an offense level of 43" because of the amount of money involved in the FTX frauds.  Even for someone with no criminal history, that offense level means a recommended guideline sentence of life in prison (and the federal system has no parole).  To move from a recommendation of life in prison without parole to an actual sentence without any prison time is the sentencing magic that cooperating with the government can conjure for some.   

A few prior related posts:

• Lawyers for Sam Bankman-Fried in lengthy memo request "a sentence that returns Sam promptly to a productive role in society"
• Feds argue in sentencing memo that "legitimate purposes of punishment require a sentence of 40 to 50 years’ imprisonment" for Sam Bankman-Fried
• Sam Bankman-Fried sentenced to 25 years in federal prison for his FTX frauds
• For executive connected to FTX collapse (and Sam Bankman-Fried's girlfriend), federal guidelines call for LWOP, but probation office recommends time served
• Feds praise Caroline Ellison's cooperation while refusing to suggest any specific sentence when federal guidelines recommend LWOP
• Caroline Ellison sentenced to two years in prison for her role in FTX collapse 

Previewing latest cases before circuit court on USSC guideline allowing some "changes in the law" to serve as basis for sentence reduction under § 3582(c)(1)(A)(i)

Bloomberg Law has this new article, headlined "Sentencing Commission Policy Power Faces Unusual Test on Appeal," previewing a notable oral argument in the Sixth Circuit scheduled this week to consider the US Ssentencing Guideline provision that permits some "changes in the law" to serve as basis for possible sentence reduction under § 3582(c)(1)(A)(i).  Here are excerpts:

A US Sentencing Commission policy statement that allows courts to consider nonretroactive changes to the law when weighing a criminal defendant’s bid for compassionate release will be tested during oral arguments in the US Court of Appeals for the Sixth Circuit Thursday.

Federal prosecutors around the country have challenged the policy statement, which allows courts to consider a change in the law — other than nonretroactive changes to the guidelines manual — as an extraordinary and compelling reason allowing a sentence reduction.

Under the policy, courts must consider the defendant’s individualized circumstances and can reduce a sentence only when the defendant received an “unusually long sentence,” has served at least 10 years in prison, and there’s a “gross disparity” between the sentence the defendant is serving and the sentence likely to be imposed now.

The Justice Department says the commission is effectively making nonretroactive laws retroactive....

Before the commission stepped in, five circuits—the Third, Sixth, Seventh, Eighth, and D.C. — said courts couldn’t consider a nonretroactive change in the law for purposes of compassionate release. Four circuits — the First, Fourth, Ninth, and Tenth—explicitly allowed judges to consider such changes, at least when examining a defendant’s overall circumstances.

The commission amended its policy statement describing “extraordinary and compelling” reasons for a sentence reduction in response to the First Step Act of 2018, an overdue move resulting from the commission lacking a quorum for several years.

The policy aimed to resolve the circuit split by allowing consideration of nonretroactive changes within a larger analysis. But DOJ has since taken the position that—despite an express delegation of authority — the policy exceeds the commission’s statutory power.  In DOJ’s view, a change in law can never be “extraordinary” or “compelling.”

Regular readers may know that I think this issue should be pretty easy to resolve for any and every jurist committed to textualism. There is absolutely nothing in the text of § 3582(c)(1)(a) that supports the Justice Department's contention that non-retroactive changes in the law cannot ever constitute "extraordinary and compelling reasons" to allow a sentence reduction, either alone or in combination with other factors.  If a court rules otherwise, it is just inventing an extra-textual categorical limitation on the express statutory authority Congress gave to district courts to reduce prison terms (persumably based on the court's policy view that there should be additional limits beyond what Congress set forth in the statutory text).

That said, Congress did provide expressly in statutory text that there is be one factor that could not alone serve as the basis for sentence reduction under § 3582(c)(1)(a): "Rehabilitation of the defendant alone shall not be considered an extraordinary and compelling reason." 28 USC § 994(t).  But that clear textual exclusion reveals that Congress plainly knows how, in express statutory text, to exclude a particular reason from being alone the basis for a sentence reduction.  The expresio unius canon of construction — "the expression of one is the exclusion of others" — in turn suggest that courts should not be inventing additional extra-textual categorical exclusions that Congress did not actually place in the statutory text.  (Moreover, the use of the word "alone" in § 994(t) further suggests that Congress wants even "debatable" factors that cannot alone be the basis for a reduction to be useable in combination with other factors.)

Of course, Congress also provided in 28 USC § 994(t) that the US Sentencing Commission "shall describe what should be considered extraordinary and compelling reasons for sentence reduction," which does suggest that the Commission has statutory authority to limit what can qualify as "extraordinary and compelling reasons" for a sentence reduction.  Indeed, the Commission did just that in its 2023 amended policy statment, §1B1.13(b)(6), which puts all sorts of restrictions on just when "a change in the law ... may be considered in determining whether the defendant presents an extraordinary and compelling reason."  But, again, the text in applicable statutes makes plain that Congress tasked only the Commission with describing (and potentially limiting) sound grounds for sentence reductions under § 3582(c)(1)(a).  Creating new categorical limits on sentencing reduction grounds is not a job for circuit courts, unless those courts believe it is supposed to be their role to ignore clear statutory text and displace the policy-making roles of both Congress and the US Sentencing Commission.

US Sentencing Commission releases latest data on compassionate release and retroactivity of 2023 criminal history amendment

The US Sentencing Commission today released a number of notable new data runs. Here is how the data is decribed via the email I received this afternoon:

Preliminary FY24 Compassionate Release Data Report

(October 17, 2024)  This data report provides a preliminary analysis of the compassionate release motions filed with the courts and decided through fiscal year 2024.

Retroactivity Data Report on the 2023 Criminal History Amendment

(October 17, 2024)  These data reports cover motions for a reduced sentence pursuant to the retroactive application of Parts A and B of Amendment 821, relating to Criminal History (effective November 1, 2023).

• Retroactivity Data on Part A
• Retroactivity Data on Part B

There is a lot which can and should be said about all these data, and I hope to discuss the compassionate release data in a separate post.  Here I will just note being struck by both the modest and majestic realities of the criminal history amendment retroactivity.  The Commission had estimated that over 18,500 federal prisoners would be eligible for a sentence reduction based on the criminal history amendments being made retroactive.  These latest data runs show than less than half that number have so far been granted a new reduced sentence.  And yet, those numbers still add up to over 8000 fewer years in prison for the beneficiaries of retroactivity.

US Sentencing Commission releases still more updated "Quick Facts" publications

To close out September, the US Sentencing Commission released yet another new set of its terrific "Quick Facts" publications.  Regular readers are now used to my praise for the USSC's production of these convenient and informative short data documents, which are designed to "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format."  Here are the newest sets of postings by the USSC on the "Quick Facts" page from the start of this week:

• NEW Mandatory Minimum Penalties (September 2024)
• NEW Federally Sentenced Native Americans (September 2024)
• NEW Securities and Investment Fraud (September 2024)
• NEW Sexual Abuse (September 2024)
• NEW Escape (September 2024)
• NEW Sentenced Organizations (September 2024)

"The Weight"

The title of this post is the title of this new essay authored by Mark William Osler now available via SSRN (and forthcoming in the Federal Sentencing Reporter). Here is its abstract:

Baked into the mechanism for determining sentences in drug cases is an old, simple and pernicious machine for injustice: the use of the weight of narcotics to measure relative culpability for drug crimes.  At an instinctual level it makes sense, since someone selling 100 pills is doing more harm than another person who sells five.  But this ignores a basic fact about drug crimes: that they are business crimes that are committed by groups of people acting together, with different roles. That means the same deciding factor, the weight of the narcotics transported, is going to apply equally to both the mule who simply drives the drugs to a destination for a small payment and the mastermind who will ultimately make real money off the deal.  There is a better way — to tie relative culpability to the profit taken by an individual — and it is time to make this change.

"Plea Agreements and Suspending Disbelief"

The title of this post is the title of this new essay authored by Sam Merchant now available via SSRN (and forthcoming in the Federal Sentencing Reporter). Here is its abstract:

This Essay explores the traditional view that judges exercise broad discretion at sentencing after Booker.  Around 98% of cases are resolved through guilty pleas, and at least 71% of those cases involve binding or nonbinding plea agreements, many of which stipulate to an exact sentence, guideline, or range.  Parties sometimes collaborate to ensure that sentences fit within confabulated guideline ranges, and when a sentence falls within a guideline range, the U.S. Sentencing Commission never systematically collects data on the judge's reasons for the sentence.  The absence of meaningful data on judges' reasons for two-thirds of federal sentences prevents thorough analysis of whether those sentences fulfill the intended purposes of punishment.

This Essay contributes new data on plea agreements for sentences within guideline ranges and suggests that parties drive more of federal sentencing than previously acknowledged.  Judges' apparent complicity, particularly post-Booker, gives those sentences the cathartic gloss of Article III, maintaining a peculiar but potentially necessary framework of fictions in federal sentencing.

Feds praise Caroline Ellison's cooperation while refusing to suggest any specific sentence when federal guidelines recommend LWOP

In this recent post, I flagged the upcoming sentencing of Caroline Ellison as an interesting high-profile case in which the federal sentencing guidelines call for an LWOP sentence, but the presentencing report recommended only "time served with three years of supervised release."   Yesterday the feds weighed in without a specific sentencing recommendation, but signaling her cooperation called for quite a sentencing reward.  This New York Times piece provides these details:

Caroline Ellison, a close colleague of the disgraced cryptocurrency mogul Sam Bankman-Fried, provided “extraordinary cooperation” to the government, federal prosecutors said on Tuesday, signaling that she should receive a lenient sentence for her role in the sweeping fraud that led to the collapse of the FTX crypto exchange.

Ms. Ellison, 29, who was also Mr. Bankman-Fried’s on-and-off girlfriend, pleaded guilty to fraud shortly after FTX collapsed in November 2022, alongside two other members of his inner circle. In a court filing this month, Ms. Ellison’s defense lawyers asked the judge overseeing the case, Lewis A. Kaplan, to sentence her to three years of supervised release, with no prison time.

In the government’s filing on Tuesday, prosecutors did not recommend a specific sentence to the judge but pointed out that her cooperation was “not only substantial, but exemplary.” Ms. Ellison was the star witness at Mr. Bankman-Fried’s trial last fall in federal court, where she spent nearly three days on the stand.  She described an incriminating spreadsheet that Mr. Bankman-Fried had used to mislead business partners and recounted the final days of FTX, holding back tears as she delivered some of the trial’s most emotional testimony.

Mr. Bankman-Fried was convicted of a sophisticated fraud that siphoned $8 billion from customer accounts to finance venture investments, political donations and other spending. He was sentenced to 25 years in prison in March.  Judge Kaplan is set to decide Ms. Ellison’s sentence in federal court in Manhattan on Sept. 24.

“In her many meetings with the government, Ellison approached her cooperation with remarkable candor, remorse and seriousness,” the prosecutors wrote in their 14-page memo to Judge Kaplan.  “And she persevered despite harsh media and public scrutiny and Bankman-Fried’s efforts to publicly weaponize her personal writings to discredit and intimidate her.”...

In their sentencing memo, Ms. Ellison’s lawyers detailed the often-stormy romantic relationship between their client and Mr. Bankman-Fried.  For years, they wrote, Ms. Ellison was effectively in his thrall, living in a social “bubble” centered on Mr. Bankman-Fried. At his suggestion, Ms. Ellison started taking Adderall so that she could work longer hours, the memo said. Mr. Bankman-Fried initially “suggested their liaison would develop into a full relationship,” the lawyers wrote.  “But after a few weeks, he would ‘ghost’ Caroline without explanation.”...

Since pleading guilty, Ms. Ellison has struggled to find paying work, according to her lawyers’ memo. She was turned down for a job with a charity that promoted math education for young women.  At one point, she secured a position helping low-income families prepare tax returns; a couple of weeks later, she was asked to leave after the employer realized who she was, according to a letter from her aunt that was filed with the sentencing memo.

Ms. Ellison has volunteered for more than 700 hours with community organizations, teaching adult literacy classes and fostering rescue dogs, the memo said.  She is working with her parents, who both teach at the Massachusetts Institute of Technology, on a math enrichment textbook for advanced high school students, and has written a novella set in Edwardian England.

A few prior related posts:

• Lawyers for Sam Bankman-Fried in lengthy memo request "a sentence that returns Sam promptly to a productive role in society"
• Feds argue in sentencing memo that "legitimate purposes of punishment require a sentence of 40 to 50 years’ imprisonment" for Sam Bankman-Fried
• Sam Bankman-Fried sentenced to 25 years in federal prison for his FTX frauds
• For executive connected to FTX collapse (and Sam Bankman-Fried's girlfriend), federal guidelines call for LWOP, but probation office recommends time served

US Sentencing Commission releases some more updated "Quick Facts" publications

Regular readers are now used to my praise for the US Sentencing Commission for continuing to release new sets of its terrific "Quick Facts" publications.  But ir remains the case that I cannot praise the USSC enough for producing these convenient and informative short data documents, which are designed to "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format."  IHere are the newest sets of postings by the USSC on the "Quick Facts" page from last week:

Offender Groups

• NEW Federally Sentenced Women (September 2024)

Sex Offenses

• NEW Child Pornography (September 2024)

Other Offenses

• NEW Robbery (September 2024)
• NEW National Defense (September 2024)

"Plea Agreements and Suspending Disbelief"

The title of this post is the title of this new essay authored by Sam Merchant and available via SSRN. Here is its abstract:

This Essay explores the traditional view that judges exercise broad discretion at sentencing after Booker.  Around 98% of cases are resolved through guilty pleas, and at least 71% of those cases involve binding or nonbinding plea agreements, many of which stipulate to an exact sentence, guideline, or range. Parties sometimes collaborate to ensure that sentences fit within confabulated guideline ranges, and when a sentence falls within a guideline range, the U.S. Sentencing Commission never systematically collects data on the judge's reasons for the sentence.  The absence of meaningful data on judges' reasons for two-thirds of federal sentences prevents thorough analysis of whether those sentences fulfill the intended purposes of punishment.

This Essay contributes new data on plea agreements for sentences within guideline ranges and suggests that parties drive more of federal sentencing than previously acknowledged.  Judges' apparent complicity, particularly post-Booker, gives those sentences the cathartic gloss of Article III, maintaining a peculiar but potentially necessary framework of fictions in federal sentencing.

For executive connected to FTX collapse (and Sam Bankman-Fried's girlfriend), federal guidelines call for LWOP, but probation office recommends time served

If anyone wants a good example of the federal sentencing guidelines not doing an effective job of guiding a federal sentencing judge, consider the specifics of the upcoming high-profile sentencing of Caroline Ellison.  This CNBC story about a sentencing filing provides some of the background, as well as helpful links to some key court documents:

Lawyers for Caroline Ellison, the star witness in the prosecution of FTX founder Sam Bankman-Fried, are recommending no prison time for their client’s role in the implosion of the crypto empire that was run by her former boss and ex-boyfriend.

In a court filing Tuesday night, the attorneys said that, at most, Ellison should be sentenced to time served and supervised release because of her swift return to the U.S. from FTX’s Bahamas headquarters in 2022 and her choice to voluntarily cooperate with the U.S. attorney’s office and financial regulators in helping them understand what went wrong at FTX and sister hedge fund Alameda Research. 

Judge Lewis Kaplan, who presided over Bankman-Fried’s case, cited Ellison’s testimony when he decided in March to sentence the FTX founder to 25 years behind bars.  Ellison, who ran Alameda Research, agreed to a plea deal in December 2022, a month after FTX spiraled into bankruptcy. Unlike Bankman-Fried, who was convicted of all seven criminal fraud charges against him, Ellison pleaded guilty to conspiracy and financial fraud charges, rather than go to trial.

The Tuesday filing also refers to the recommendation of the court’s Probation Department that Ellison be given a sentence of “time served with three years of supervised release” as a credit to her “extraordinary cooperation with the government” and “her otherwise unblemished record.”  Lawyers added that the department’s presentence report, which referenced numerous character testimonials speaking to Ellison’s ethics and integrity, also recommended that she not be fined.  “Caroline poses no risk of recidivism and presents no threat to public safety,” the filing says. “It would therefore promote respect for the law to grant leniency in recognition of Caroline’s early disclosure of the crimes, her unmitigated acceptance of responsibility for them, and — most importantly — her extensive cooperation with the government.”

In the filing, FTX CEO John Ray, who has been guiding the crypto firm through bankruptcy proceedings, describes Ellison’s cooperation as “valuable” in helping his team protect and preserve “hundreds of millions of dollars” in assets.  He added that she has worked with his advisors to provide information regarding private keys to cryptocurrency wallets that contain “estate assets, DeFi positions, FTX exchange internal account information, the use of third-party exchanges for pre-petition trading, and pre-petition auditing practices.”

The 67-page document describe large swaths of Ellison’s life, starting from her earliest days in Boston and stretching into her protracted and troubled romance with Bankman-Fried. In that time, she “moved around the globe at his direction, first to Hong Kong and later the Bahamas,” and “worked long, stressful, Adderall-fueled hours,” the filing says.  Bankman-Fried forced Ellison into a sort-of isolation, culminating in her moral compass being “warped,” the lawyers say. At his direction, Ellison helped “steal billions,” all while living “in dread, knowing that a disastrous collapse was likely, but fearing that disentangling herself would only hasten that collapse.”

“Bankman-Fried convinced her to stay, telling her she was essential to the survival of the business, and that he loved her,” all “while also perversely demonstrating that he considered her not good enough to be seen in public with him at high-profile events,” the filing says.

Though I have only had a chance to briefly scan Ellison's sentencing memorandum, I noticed it included no objection to the calculated guideline range, which produced "the Guidelines sentence of life imprisonment, reduced to the statutory maximum of 1,320 months" (110 years).  As guideline mavens know, the massive "loss" in this case drove Ellison’s guideline calculation to produce a recommended LWOP sentence; as federal sentencing mavens know, pleading guilty and providing "extraordinary cooperation with the government" is one critical way a defendant can seek to get a judge to ignore the guidelines at sentencing.

It will be interesting to see if the feds ask for any prison time here, but I am quite sure they will not be urging Judge Kaplan to follow the guidelines.  After all, the feds urged a sentence well below LWOP even for Sam Bankman-Fried even though his guideline calculation was literally "off the grid" and had the highest calculated offense level I had ever seen.  White-collar prosecutors and defense attorneys have long known, of course, that guideline calculations in high-dollar, white-collar cases often amount to a kind of Kabuki theater amounting to little of real substance.  That reality is surely on display, yet again, in the FTX sentencings.

Some prior related posts about SBF's sentencing

• You be the judge: what federal sentence for Sam Bankman-Fried after guilty verdict on seven criminal fraud counts? 
• Should a bounce in crypto markets mean a much lower federal sentence for Sam Bankman-Fried? 
• Lawyers for Sam Bankman-Fried in lengthy memo request "a sentence that returns Sam promptly to a productive role in society"
• Feds argue in sentencing memo that "legitimate purposes of punishment require a sentence of 40 to 50 years’ imprisonment" for Sam Bankman-Fried
• Sam Bankman-Fried sentenced to 25 years in federal prison for his FTX frauds

US Sentencing Commission releases FY 2024 third quarter sentencing data

The US Sentencing Commission last week released on its website its latest quarterly data report, this one labelled "3rd Quarter Release, Preliminary Fiscal Year 2024 Data Through June 30, 2024."  These new data with the latest accounting of federal sentencing trends helps to further define the new normal in federal sentencing patterns.  As I have noted before, and as reflected in Figure 2, the quarters just prior to the COVID pandemic averaged roughly 20,000 federal sentencings per quarter; the "new normal" over the past year is roughly 15,000 and 16,000 total federal cases sentenced each quarter (and Figure 2 shows that declines in immigration sentencings accounts for the decrease in overall cases sentenced).

As I have also noted before, the other big COVID-era trend of historically large numbers of below-guideline variances has persisted for years now (as detailed in Figures 3 and 4). I continue to suspect this trend is mostly a facet of the different caseload and case mixes.  Interestingly, in the most recent two quarters, the official data show a small but notable uptick in the percentage of all federal sentences that are imposed "Within Guideline Range."  But it remains the case that a majority of federal sentences are being imposed outside the guideline range (for a wide array of reasons) than are being imposed inside the calculated range.

As I have also flagged before, the modern USSC's data on drug sentencing reflected in Figures 11 and 12 remains fascinating. These figures show, for the last three quarters, that over 46% of all federal drug sentencings involved methamphetamine and the average sentence for all those meth cases is well over eight years in prison.  Also notable is how few marijuana (2.7%) and crack cocaine (4.0%) cases are being sentenced in federal courts.  

As always, there are more big and small stories to mine from the latest USSC data.  But the relative consistency of the system, even with lots of notable recent reforms by the Commission and talk of more, is my consistent take away from these valuable data runs. 

US Sentencing Commission releases more updated "Quick Facts" publications on more economic offenses

The US Sentencing Commission is continuing to release new sets of its "Quick Facts" publications with updates drawing on the USSC's full fiscal year 2023 data. I have flagged these new updated Quick Facts in recent posts  here and here, and the USSC just this week released these additional "Quick Facts"  on additional economic offenses:

• NEW Tax Fraud (August 2024)
• NEW Health Care Fraud (August 2024)
• NEW Government Benefits Fraud (August 2024)
• NEW Credit Card and Other Financial Instrument Fraud (August 2024)

Ninth Circuit panel continues using Kisor deference analysis for guideline commentary after Loper Bright

The Ninth Circuit handed down a notable little opinion late last week in US v. Trumbull, No. 23-912 (9th Cir. Aug. 22, 2024) (available here), discussing whether the federal sentencing guidelines' commentary regarding the "definition of 'large capacity magazine' Warrants Deference under Kisor." Hard-core sentencing fans should know what is meant by guidelines' commentary, and hard-core administative law fans should know what is meant by Kisor deference. The panel majority concludes its analysis this way:

Application Note 2’s interpretation of “large capacity magazine” in § 2K2.1 meets the extensive requirements for deference laid out in Kisor. Therefore, the district court did not err in applying § 2K2.1(a)(4)(B), as interpreted by Application Note 2, to Trumbull’s base offense level when calculating his Guidelines range.

Judge Bea concurred in the result, but he wrote at length to explain why he thought Kisor deference was not justified in this context. In so doing, Judge Bea suggested that the Supreme Court's recent Loper Bright ruling was relevant to the analysis:

The majority’s expansion of Kisor deference is particularly troubling considering the Supreme Court’s recent decision in Loper Bright.  Although I acknowledge that Loper Bright did not expressly overrule Kisor, the majority is mistaken to brush Loper Bright aside and treat it as irrelevant to the interpretation of regulatory language. Maj. Op. at 7 n.2. The Court in Loper Bright made clear that courts cannot merely “throw up their hands,” as the majority does today, when a term is difficult to apply.  See Loper Bright, 144 S. Ct. at 2266. Indeed, Loper Bright questioned whether ambiguity can even serve as a valid benchmark when it comes to a court’s interpretive role.

I have noted in a number of prior posts (some linked below) that there is on-going dispute in the circuit as to whether Kisor applied to the guidelines commentary, and I am not surprised to see Loper Bright adding a nuance to these matters of uncertainty.

A few prior related posts:

• Kisor role: how often is deference to the federal sentencing guidelines' commentary litigated?
• Sixth Circuit panel debates agency deference for guideline commentary defining images for child porn sentencing
• How Kisor rolls: Third Circuit rejects guideline commentary in child porn sentencing 
• Hoping admin law gurus will help us all understand what Loper Bright might mean for federal sentencing law 

Lots of notable front page sentencing issues in next week's sentencing of Backpage

I have not closely followed the legal sagas that have surrounded the website Backpage, which was the huge classified advertising website shut down and seized by federal law enforcement in April 2018.  But next week the Backpage saga has a federal sentencing stage, and this Law360 piece provides a flavor for just some of the issues raised:

Prosecutors asked an Arizona federal judge Monday to sentence two former executives of the defunct classifieds service Backpage.com and the site's co-founder to 20 years in prison after they were found guilty of several counts over an alleged $500 million prostitution scheme.

In a sentencing memorandum, prosecutors said the crimes former executives Scott Spear and John Brunst and Backpage co-founder Michael Lacey were convicted of caused extraordinary harm and amounted to "one of the internet's largest and longest-running criminal empires."

Prosecutors say the website facilitated prostitution through ads. Spear and Brunst were convicted of multiple counts after a 28-day trial in November while two other executives were acquitted. Lacey was found guilty of one count of money laundering; the jury was deadlocked on dozens of other charges against him. The mixed verdict ended a sprawling case that saw its first trial end in a mistrial in 2021....

In April, U.S. District Judge Diane J. Humetewa rejected some of the jury's findings, tossing nearly three dozen transactional money laundering charges, as well as Travel Act charges against Lacey, but kept the rest of the verdict intact. Sentencing is scheduled for Aug. 27 and 28. Prosecutors said Monday they were "unaware of any mitigating circumstances" for the purposes of sentencing. Spear, Brunst and Lacey showed no remorse following their convictions, prosecutors said.... The prosecutors argued that victim impact statements submitted to the court don't fully encapsulate the harm Backpage inflicted, saying some trafficking victims were killed by perpetrators who found them on the site.

Lacey, Spear and Brunst all requested probation in their own sentencing memorandums filed Monday, arguing that they never intentionally broke the law. Lacey claimed that his only felony conviction was for a "financial crime that he purportedly committed upon the idea and advice of two credentialed lawyers, wherein all reporting rules were followed."....

Spear similarly said in his memorandum that his actions were in line with a law-abiding life.... Brunst said he was never employed by Backpage, but rather worked for Village Voice Media Holdings starting in 1992 and later at Medalist Holdings, a successor entity after VVMH sold its newspapers.

Over at Reason, the arguments surrounding one defendant get extra attention in a piece here headlined "Feds Seek 20-Year Sentence for Backpage Co-Founder Michael Lacey; It's an insane ask for someone convicted of just one nonviolent offense." Here is an excerpt:

Lacey was charged — along with other former Backpage executives — of using Backpage to knowingly facilitate prostitution, in violation of the U.S. Travel Act.  Two of the defendants were acquitted of all such offenses and two of the defendants were found guilty of some of them. But the jury could not reach a conclusion when it came to Lacey. U.S. District Judge Diane Humetewa found there was insufficient evidence to sustain most of the remaining 84 counts against him.

Now, prosecutors want the judge to simply act, for sentencing purposes, as if those charges are all true. Federal prosecutors are also putting Lacey on trial for these charges again — which means that if he is eventually convicted, he could wind up being sentenced twice for the same conduct.

This case and these defendants have many more notable elements, and I found reviewing some of the sentencing memoranda fascinating — eg, the government's memo reports that the PSR recommended 1080 months (90 years) for Spear, who is 73 years old.  Here, thanks to Law360, are the sentencing submissions:

•  US Memo
•  Spear Memo
•  Lacey Memo
•  Brunst Memo

You be the federal judge: what sentence for former US Rep George Santos after his plea to fraud and identity theft?

The remearkable saga of former US Congressman George Santos closed one chapter in the same manner as many federal criminal prosecutions, namely with a guilty plea to a few of many charged counts.  But what sentence should shape the next chapter of the Santos saga?  This press release from the U.S. Attorney's Office in the Eastern District of New York, headed "Former Congressman George Santos Pleads Guilty to Wire Fraud and Aggravated Identity Theft," provides all sorts of details about Santos's misdeeds and starts with these basics:

Santos Admits He Filed Fraudulent FEC Reports, Embezzled Funds from Campaign Donors, Charged Credit Cards Without Authorization, Stole Identities, Obtained Unemployment Benefits Through Fraud, and Lied in Report to the House of Representatives

Earlier today, in federal court in Central Islip, former Congressman George Anthony Devolder Santos pleaded guilty to committing wire fraud and aggravated identity theft.  The proceeding was held before United States District Judge Joanna Seybert.   When sentenced, Santos faces a minimum sentence of two years’ imprisonment and a maximum sentence of 22 years’ imprisonment. As part of the plea Santos will pay restitution of $373,749.97 and forfeiture of $205,002.97.  Santos was initially charged in May 2023, and a superseding indictment charging Santos with additional crimes was returned in October 2023.

This USA Today article provides some context and more sentencing details:

Former Rep. George Santos, R-N.Y., who was expelled from the House of Representatives after being indicted on 23 federal counts including fraud and misusing campaign funds, pleaded guilty Monday in federal court to two of the charges.

The Long Island Republican faces a mandatory two-year minimum sentence after pleading guilty to wire fraud and aggravated identity theft.  But Judge Joanna Seybert estimated the term could range from six to eight years behind bars when he is sentenced on Feb. 7, 2025.  Santos also agreed to pay nearly $374,000 in restitution and to forfeit $205,000.

Santos had faced trial in September on charges including laundering campaign funds to pay for his personal expenses, charging donors' credit cards without their consent, and receiving unemployment benefits while he was employed. "I deeply regret my conduct and the harm it has caused and accept full responsibility for my actions," Santos said in a shaky voice in court.

Prosecutors said Santos told the truth about his criminal schemes for what seemed like the first time since campaigning for Congress. “He admitted to lying, stealing and conning people,” U.S. Attorney Breon Peace said in a statement. “His flagrant and disgraceful conduct has been exposed and will be punished."...

"Moving forward, I am dedicated to making amends for the wrongs I have committed," Santos told reporters outside the courthouse. "This plea is not just an admission of guilt, it is an acknowledgment that I need to be held accountable, like any other American that breaks the law."

So, dear readers, Santos himself says he needs "to be held accountable." How would you punish him to hold him accountable?

US Sentencing Commission continues releasing updated "Quick Facts" publications

I am pleased to see that the US Sentencing Commission is continuing to release new sets of its terrific "Quick Facts" publications with updates drawing on the USSC's full fiscal year 2023 data.  Long-time readers know I cannot praise the USSC enough for producing these convenient and informative short data documents, which are designed to "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format."  I flagged an early set of updated Quick Facts here a few months ago, and here are the newest sets of postings by the USSC on the "Quick Facts" page from June July and August:

Offender Groups

• NEW Non-U.S. Citizens (July 2024)

Drugs

• NEW Powder Cocaine Trafficking (June 2024)
• NEW Crack Cocaine Trafficking (June 2024)
• NEW Marijuana Trafficking (June 2024)
• NEW Oxycodone Trafficking (June 2024)
• NEW Heroin Trafficking (July 2024)

Firearm Offenses

• NEW Section 924(c) (June 2024)
• NEW Section 922(g) (June 2024)

Immigration Offenses

• NEW Illegal Reentry (July 2024)
• NEW Alien Smuggling (July 2024)

Economic Offenses

• NEW Theft, Property Destruction, and Fraud (August 2024)
• NEW Aggravated Identity Theft (August 2024)
• NEW Bribery (August 2024)
• NEW Counterfeiting (August 2024)
• NEW Money Laundering (August 2024)

Intriguing action, but no formal vote, from US Sentencing Commission on retroactivity of 2024 guideline amendments

As noted in this post yesterday, this afternoon the US Sentencing Commission had a scheduled public meeting, and the big official agenda items were "Possible Vote on Final 2024–2025 Policy Priorities" and "Possible Vote on Retroactivity of Certain 2024 Amendments." And, as noted in this post from earlier today, the Commission did vote, and voted unanimously, for this official set of new policy priorities.  But, interestingly, the Commission did not vote on the issue of retroactivity of certain 2024 amendments.

When reaching the retroactivity issue in the agenda (starting at around the 13:45 minute mark of the meeting recording here), the matter failed "for lack of a motion."  The Commission Chair subsequently explained that "many have called for the Commission to identify clear principles that will guide its approach to retroactivity" and that, "after deep deliberation," the Commission decided to heed those calls and apparently defer any vote on retroactivity. 

Notably, my colleague at the Sentencing Matters Substack, Jonathan Wroblewski, wrote this thoughtful post on this topic titled "Is it Time for the U.S. Sentencing Commission to Issue a Detailed, Written, and Reasoned Opinion on When it Applies Guideline Amendments Retroactively?".   I surmise that the Commission has decided that it is time for a new approach to its retroactivity decision-making, but it is not yet clear just what that now means either for retroactivity decisions generally or for the retroactivity of certain 2024 amendments.  Stay tuned.

Prior recent related posts:

• US Sentencing Commission sets out broad, general request concerning proposed priorities for 2024 to 2025 amendment cycle
• US Sentencing Commission releases over 1200 pages of public comment on proposed priorities
• US Sentencing Commission ... conducting "Public Hearing on Retroactivity" for its proposed 2024 guideline amendments
• US Sentencing Commission votes to adopt priorities that "reflect calls to simplify sentencing, reduce the costs of unnecessary incarceration, and promote public safety"

US Sentencing Commission votes to adopt priorities that "reflect calls to simplify sentencing, reduce the costs of unnecessary incarceration, and promote public safety"

I received an email from the US Sentencing Commission, not long after after its short public meeting today, titled "Embracing the Public’s Ideas to Improve Sentencing, Commission Unanimously Adopts Policy Priorities."  And the title of this post captured the emails subtitle: "Priorities Reflect Calls to Simplify Sentencing, Reduce the Costs of Unnecessary Incarceration, and Promote Public Safety."  And here is the full text of the email, with links from the original:

Each year, the bipartisan U.S. Sentencing Commission votes to adopt priorities that will guide its annual policymaking process.  This summer, the Commission solicited priorities from the public, asking how the agency can improve federal sentencing.  In response, the Commission received more than 1,200 pages of insightful comments from judges, members of Congress, executive branch officials, probation officers, advisory groups, attorneys, professors, advocates, organizations, incarcerated individuals, and others.

Today, the Commission voted unanimously to commit to prioritize one or more of the clear themes that emerged from the comments it has received, which included:

• Simplifying the federal Sentencing Guidelines and clarifying their role in sentencing. This includes revision of the “categorical approach” for purposes of the career offender guideline and possibly amending the Guidelines Manual to address the three-step process and the use of departures and policy statements relating to specific personal characteristics;
• Reducing the costs of unnecessary incarceration;
• Promoting public safety;
• Improving community supervision;
• Expanding the Commission’s use of expertise, evidence, and best practices; and
• Promoting evidence-based approaches to offense and individual characteristics. Read the full list of priorities.

“Today’s vote proves one thing: when you speak to the Commission, you will be heard,” said Judge Carlton W. Reeves, Chair of the Commission. “Our final priorities will allow us to give each public comment the attention it deserves. This is the first step in translating the public’s priorities into policies that improve federal sentencing. As we move forward, we will continue to seek out and obtain guidance from the public and stakeholders across the criminal justice system.” Watch a recording of today's meeting.

A compilation of public comment can be reviewed here. Visit www.ussc.gov for more information about the amendment process. 

New US Sentencing Commission information resources just before USSC meeting to inform on new policy priorities and 2024 amendment retroactivity

I see from the US Sentencing Commission's website a couple of notable new resources:

• Selected Supreme Court Cases on Sentencing Issues (August 7): This document provides brief summaries of selected Supreme Court and appellate court cases that involve the guidelines and other aspects of federal sentencing.

• Sentencing Practice Talk Podcast Relaunch (August 7): In this highly anticipated return of Sentencing Practice Talk, Commission staff introduce listeners to the nuts and bolts of the HelpLine and share common guideline application questions.

These two helpful USSC resourses serve as a kind of a savory snack before the main Commission meal to be served up at the scheduled public hearing tomorrow afternoon with this official agenda:

• Report of the Chair
• Possible Vote to Adopt April 2024 Meeting Minutes
• Possible Vote on Final 2024–2025 Policy Priorities
• Possible Vote on Retroactivity of Certain 2024 Amendments
• Adjourn

Though there surely are many federal prisonsers, judges, prosecutors and defense attorneys quite eager to see the results of the expected vote on the retroactivity of certain 2024 guideline amendments, I am particularly eager to hear about the Commission's plans for its 2024–2025 policy priorities.  As I have noted in some prior posts, the the Commission, after two years of intricate work on a range of pressing issues, has sought comment and signalled its interest in taking a big-picture look at the full federal sentencing system and the Commission's own work therein.  The Commission received well over 1000 pages of comments, and I am wondering just how they plan to sort this all out.

Notably, over at the new Sentencing Matters Substack, former Justice Deparment and USSC ex-officio member Jonathan Wroblewski wrote this recent post on these matter titled "Reasoned Agency Decisionmaking and the Upcoming Announcement of the U.S. Sentencing Commission's Policy and Research Priorities for the 2024-25 Guideline Amendment Year."  I would recommend his post in full, and here is how it concludes:

I believe the Commission did a great thing in opening up the priority-setting process and soliciting such wide-ranging input.  It is an example of good government at work.

But as with most good deeds, this one will not go unpunished.  The Commission now owes it to those who took the time to answer its call, and also to Congress, the Executive Branch, and the public at large, to share with all of us, in some detail and reasoned explanation, its reaction to the recommendations and its choices on how it will proceed.  The Commission should, in light of everything it has now heard, set forth how — and why — it has charted a research and policy development course not just for the coming nine months, but for the next several years.  This is also part of good government and good agency practice — see, e.g., Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U.S. 29, 43 (1983) — and I hope it will be the written product of the Commission’s August 8th meeting.

Professors Berman, Chanenson, and I submitted our recommendations to the Commission too, which you can find immediately below.  We come down on the “broad systemic review” side of the recommendation spectrum, and we urge the Commission to engage in what the American Law Institute’s Model Penal Code: Sentencing refers to as an “omnibus review;” an examination of the Guidelines system, over the coming few years — and based on the experience of the last four decades — in order to forge a new era of federal sentencing policies and practices for the years ahead.

The Commission deserves credit for inviting us all in to be part of its research and policy making process.  But now, the Commission ought to transparently share with us what it thinks of all the ideas it has received and how it intends to shape the coming decades of federal sentencing research and policy.  This is part of what “reasoned decisionmaking” for an administrative agency is all about. Michigan v. EPA, 576 U.S. 743, 750 (2015).

Prior recent related posts:

• US Sentencing Commission sets out broad, general request concerning proposed priorities for 2024 to 2025 amendment cycle
• US Sentencing Commission releases over 1200 pages of public comment on proposed priorities

Second Circuit panel finds unreasonable 10-year prison sentence for federal prison guard who repeatedly raped inmate

I missed while on the road the notable Second Circuit panel ruling last week in US v. Martinez, No. 22-902-cr (2d Cir. July 30, 3034) (available here).  Though I do not keep up with all reasonableness rulings in circuit courts, I still believe it remains rare for federal circuits to find sentences unreasonable on appeal.  But Martinez is a case that lead to finding of both prosecural and substantive unreasonableness, and here is how the lengthy panel opinion starts:

Defendant-Appellant-Cross-Appellee Carlos Martinez, a former federal prison guard, was convicted after two jury trials in the United States District Court for the Eastern District of New York (Edward R. Korman, District Judge) of a number of charges stemming from his repeated rape of an inmate, whom the parties refer to as “Maria,” at the Metropolitan Detention Center (“MDC”) in Brooklyn, New York.  At both trials, Maria testified that Martinez raped her on five occasions while she was assigned to clean his office on weekends when that area was largely deserted. She testified that Martinez repeatedly sexually assaulted her by force (by physically holding her down) and threats and fear (by, for example, threatening to send her to a special housing unit (“SHU”) and warning her that fighting back would result in charges for assaulting an officer).

The jury at Martinez’s first trial found him guilty of five counts of sexual abuse of a ward, in violation of 18 U.S.C. § 2243(b) — one count for each rape. It also found him guilty of a number of other counts which were later vacated for reasons that are not at issue in the present appeal. At a second trial, Martinez was retried on fifteen counts arising out of the five rapes.  As to each rape, Martinez was charged with sexual abuse by threats or fear in violation of 18 U.S.C. § 2242(1); depriving Maria of her civil rights in violation of 18 U.S.C. § 242; and aggravated sexual abuse in violation of 18 U.S.C. § 2241(a)(1).  The jury convicted Martinez of five counts of sexual abuse by threats or fear, 18 U.S.C. § 2242(1).  The jury also convicted Martinez of depriving Maria of her civil rights, 18 U.S.C. § 242, and of aggravated sexual abuse, 18 U.S.C. § 2241(a)(1), but only as to the second of the five charged rapes; it acquitted him on those counts as to the other four incidents.

At sentencing, the district court expressed doubts about Maria’s testimony and later explained in its written statement of reasons that it disagreed with the second jury’s guilty verdicts on the five counts of sexual abuse through threats or fear — despite having previously denied Martinez’s motions for acquittal. The court also made several remarks suggesting that the second jury had not credited Maria’s testimony, even though the jury had returned guilty verdicts on at least one count relating to each of the five charged rapes.  It additionally described Martinez as “not a violent criminal,” Gov’t App’x 226, even though the jury had found beyond a reasonable doubt that, on one occasion, he had forcibly raped Maria.  At bottom, the court appeared to believe Martinez’s defense that he and Maria had engaged in consensual sex, a version of events necessarily foreclosed by the guilty verdicts.  The district court ultimately imposed a prison sentence of ten years, a dramatic variance below the advisory Guidelines range of life imprisonment.

Martinez now challenges the sufficiency of the evidence underlying his two convictions premised on using force to commit the second charged rape. We reject the insufficiency claim, because the jury was entitled to credit Maria’s testimony that Martinez physically restrained her to carry out that particular instance of sexual abuse. Martinez argues that his acquittals on some counts reveal that the jury must have completely rejected the victim’s testimony, but it is well established that a defendant cannot rely on inconsistent verdicts to impugn a conviction, and, in any event, the jury’s guilty verdicts decisively refute any contention that the jury entirely rejected that testimony.

The government cross-appeals Martinez’s ten-year sentence as procedurally and substantively unreasonable. We agree. The district court committed a number of procedural errors: It relied on certain 6 clearly erroneous factual findings that were foreclosed by the jury’s guilty verdicts, or that it mistakenly believed were dictated by the jury’s acquittals on other counts. It mistakenly treated Martinez’s convictions for committing sexual abuse through threats or fear as legally equivalent to committing sexual abuse of a ward, despite the fact that the former offense, unlike the latter, requires the sexual contact to have been without the victim’s consent. And it failed to effectively sentence him based on all of his convictions. The sentence was also substantively unreasonable because the district court gave dramatically insufficient weight to the seriousness of the full range of Martinez’s offenses, and impermissibly gave weight to its residual doubts about the jury’s guilty verdicts as a mitigating factor. We therefore AFFIRM the judgment of conviction and REMAND for resentencing consistent with this opinion.

Latest episode of "Drugs on the Docket" podcast features USSC Chair Carlton Reeves

In this post, I highlighted that the Drug Enforcement and Policy Center at The Ohio State University had been releasing episodes from Season Two of the "Drugs on the Docket" podcast.  (All of the first season's episodes are all still available via Apple Podcasts and YouTube, where you can also find all released Season 2 episodes as well.)   And now, as detailed on this podcast webpage, we just recently released the fifth episode of this new season. 

This exciting new episode captures an extended discussion with Judge Carlton Reeves, Chair of the U.S. Sentencing Commission.  This discussion took place back in March not long after Judge Reeves had delivered the 2024 Menard Family Lecture on Drug Policy and Criminal Justice at The Ohio State University Moritz College of Law (which can be watched here).  Though taped a few months ago, the release of this episode seems especially timely because the Commission has scheduled this big public meeting for this coming Thursday, August 8, 2024, to discuss, inter alia, its priorities for the coming year.  In the podcast Judge Reeves discusses at length how the Cmmission goes about setting its priorities and other aspects of the agency's work. 

From the this podcast webpage, here is this episode's description along with  show notes:

Season 2 Episode 5 – A Special Conversation with the Honorable Carlton W. Reeves, Chair of the U.S. Sentencing Commission

Host Hannah Miller and co-host Doug Berman, executive director of the Drug Enforcement and Policy Center, speak with the Honorable Judge Carlton W. Reeves, Chair of the United States Sentencing Commission and U.S. District Court Judge for the Southern District of Mississippi. Judge Reeves discusses his role as Chair of the Sentencing Commission and the recent activities of the Commission, including efforts taken to reform the U.S. Sentencing Guidelines.

Show notes:

• United States Sentencing Commission (USSC) website
• Learn about the additional two ex-officio members of the United States Sentencing Commission in addition to the members noted in the episode
• Dealing in Lives: Imposition of Federal Life Sentences for Drugs from 1990–2020
• Alternatives to Incarceration, Problem-Solving Courts, and other resources by topic (USSC)
• Statement from the White House: President Biden Nominates Bipartisan Slate for the United States Sentencing Commission
• Schoolhouse Rock! episode, “I’m Just a Bill”

US Sentencing Commission schedules big meeting for August 8, 2024 to vote on retroactivity and priorities

As detailed in this official announcement, two weeks from today is the scheduled date for a big official public meeting for the US Sentencing Commission to take big votes on two sets of important issues. Here is the full announcement:

Pursuant to Rule 3.2 of the Rules of Practice and Procedure of the United States Sentencing Commission, a public meeting of the Commission is scheduled for Thursday, August 8, 2024 at 3:00 p.m. (EDT) (tentative). The meeting will be held in the Commissioner’s Conference Room of Suite 2-500 in the Thurgood Marshall Federal Judiciary Building, One Columbus Circle, N.E. (South Lobby), Washington, D.C. The meeting will be streamed live. 

Agenda:

• Report of the Chair
• Possible Vote to Adopt April 2024 Meeting Minutes
• Possible Vote on Final 2024–2025 Policy Priorities
• Possible Vote on Retroactivity of Certain 2024 Amendments
• Adjourn

US Sentencing Commission releases over 1200 pages of public comment on proposed priorities

As noted in this post last month, the US Sentencing Commission recently released a "Federal Register Notice of Proposed 2024-2025 Priorities" which suggested that the USSC was eager in this coming guideline-amendment year to take a "big-picture" look at the full fedeal sentencing system and the Commission's own work therein.  Lots of folks rightly understood that the Commission was seeking lots of input, and many responded to its request for comment.  And now the USSC has published those public comments, which in full pdf compilation runs over 1200 pages, in an accessible manner at this webpage and explained this way:

The July 2024 Compilation of Public Comment uses bookmarks as its table of contents.  A bookmark is a navigation link that displays in the side panel within Adobe Acrobat (example).  Some browsers open the bookmarks panel by default within the browser window.  If you cannot access the bookmarks panel within the browser window, it is recommended that you save the PDF and reopen it in Adobe Acrobat for easier navigation.

The Commission reviews and catalogs all public comment submissions for future reference and official recordkeeping purposes. A representative sample of public comment is carefully selected, redacted, and posted online to provide the public with the kind of information considered by the Commissioners during their deliberations. 

User Tips for Mobile Devices: The Compilation of Public Comment is over 1,200 pages and more easily navigated on a desktop.  Hyperlinks below may not take mobile users to a specific letter and the bookmarks panel may not be accessible on mobile devices. 

I believe I am partially responsible for a few dozen of these many pages of comments, and I am hopeful in the coming weeks and months to flag a wide range of comments that seems especially interesting or perhaps surprising.  In the meantime, I will just say again that the Commission merits great credit for thinking big about federal sentencing and for encouraging the public to help in that endeavor.

Prior recent related post:

• US Sentencing Commission sets out broad, general request concerning proposed priorities for 2024 to 2025 amendment cycle

"Post-Chevron, Good Riddance To The Sentencing Guidelines"

The ttile of this post is the title of this notable new Law360 commentary authored by Mark Allenbaugh, Doug Passon and Alan Ellis. The extended piece covers a lot of ground at the intersection of administrative law and the guidelines, and here is a snippet from its first section:

The Supreme Court's decision in Loper Bright Enterprises v. Raimondo, overturning the Chevron doctrine, raises a critical and long overlooked question: What, if any, deference is now owed to the guidelines themselves?

Over the past few years, significant splits have developed among many federal district courts and appeals courts with respect to the deference courts should afford both to the guidelines proper, and to their commentary.

Loper Bright is certain to add to the disarray. Accordingly, it is imperative that the court step in quickly to resolve this building crisis.

We argue that, in their current form, the guidelines should not be afforded any deference for two primary reasons.  First, although the guidelines were originally designed to be binding, their binding nature has since been ruled unconstitutional. Yet the commission has not revised the guidelines to account for their now-advisory nature.

Second, in their current form, they actually promote the exact opposite of the various policy goals they were intended to achieve — namely, to provide certainty, proportionality and uniformity in sentencing, while taking into account the population capacity of the Federal Bureau of Prisons.

Prior related post:

• Hoping admin law gurus will help us all understand what Loper Bright might mean for federal sentencing law

Is Senator Bob Menendez now facing a de facto life sentence after being convicted by a jury on all 16 federal corruption counts?

The question in the title of this post is prompted by this news via Bloomberg Law: " US Senator Bob Menendez, the powerful New Jersey Democrat, was found guilty of corruption charges related to the FBI seizure of 13 gold bars, nearly $500,000 in cash and a Mercedes-Benz at his home.  Menendez was convicted on all 16 counts Tuesday after a two-month trial in New York, where prosecutors argued the lawmaker had sold his influence to protect businessmen and to promote Egypt’s interests."  Here is more: 

The government alleged Menendez’s wife, Nadine, was a go-between who collected bribes and set up meetings with the businessmen and Egyptian officials. She was also charged, but will face a later trial.

After the verdict was read out, one of Menendez’s lawyers patted the senator on the shoulder. The judge set a sentencing date for Oct. 29 for Menendez and his two co-defendants. Menendez is certain to appeal.

The three-term senator was the first member of Congress charged with being a public official acting as a foreign agent. In all, Menendez was convicted of charges including bribery, extortion, conspiracy, honest services wire fraud and obstruction of justice.

Menendez, the senior Hispanic lawmaker in Congress, saw his political support evaporate in Washington and New Jersey amid the publicity of the cash, gold and convertible seized by agents from his home in 2022. After his indictment, he resigned as chairman of the Senate Foreign Relations Committee. He could face expulsion from the Senate, where Democrats hold a 52-48 advantage.

The bribes began when Menendez, 70, started dating Nadine Arslanian in 2018, just after an earlier corruption trial against him ended in a hung jury, prosecutors said. They wed in 2020.  During the latest criminal trial, jurors held gold bars stashed in the Menendez house, heard about their tumultuous relationship, and watched a secret FBI video of the couple dining at a Morton’s steakhouse with an Egyptian intelligence official.

Menendez was tried with Fred Daibes, a real estate developer in Edgewater, New Jersey, and Wael Hana, who secured an Egyptian monopoly to certify US meat bound for Egypt as compliant with halal standards. Daibes and Hana also were convicted of bribery and wire fraud charges.  A third businessman, former insurance broker Jose Uribe, pleaded guilty and testified he bribed Arslanian with a Mercedes.

Prosecutors said Menendez corruptly helped Egypt secure US military aid and sensitive information; urged a US agriculture undersecretary to stop questioning Hana’s halal monopoly; weighed appointing a US attorney in New Jersey who would influence a 2018 fraud indictment of Daibes; contacted the New Jersey attorney general to disrupt New Jersey criminal probes of two people close to Uribe; and helped Daibes arrange financing from Qatari investment fund for a real estate project.

Menendez didn’t testify but denied wrongdoing. His lawyers said he took no bribes or official actions to advance any quid-pro-quo schemes. His attorney Adam Fee derided the US case as “painfully thin,” woven from “fantasy” speculation and misguided inferences.  “The prosecutors are going to continue to tell you, in excited tones, that Senator Menendez is a crook, is corrupt, took a bunch of bribes,” Fee said in his summation. “His actions were lawful, normal, and good for his constituents, and this country.”

Defense lawyers sought to defuse the explosive heart of the case — gold bars and cash stuffed in closets, boots, jackets, a safe and a shopping bag. Using fingerprints and DNA evidence, prosecutors traced $82,500 of cash-stuffed envelopes to Daibes.  Serial numbers on two one-kilogram gold bars, valued at about $60,000 each, matched those on a list Daibes kept. Daibes, who grew up in a Palestinian refugee camp, gave other kilogram bars to Nadine Menendez, who sold all but two before the FBI raid, the US said. Defense lawyers said she inherited gold bars from her Lebanese family, and there’s no proof the gold she sold came from Daibes.

Fee said Menendez’s Cuban immigrant parents hoarded cash, and that the senator routinely withdrew $400 for decades from a bank account. He also argued Daibes had been friends with Menendez for 30 years, and he gave gifts out of friendship, not corrupt intent.

Because I am not familiar with all the offense details, I am disinclined to guess the precise guideline range that Senator Menendez will be facing. But the basics suggest to me he might easily be looking at an offense level over 35, meaning a guideline range of perhaps at least 15-18 years. It will be quite interesting to see how this sentencing unfolds and whether the Senator gets bail pending the inevitable appeal.

"The Demand for Democracy in Sentencing"

The title of this post is the title of this new essay now available via SSRN authored by Con Reynolds and Judge Carlton Reeves (who are, as noted at SSRN, "currently employed by and/or appointed to lead the United States Sentencing Commission). Here is its abstract:

In making the federal sentencing guidelines advisory, Booker v. United States made the influence of those guidelines dependent on their perceived legitimacy.  This Article argues that, given the link between law's legitimacy and its democratic character, Booker should be read as a demand for democracy in sentencing. This demand echoes the one imbued in the U.S. Sentencing Commission's statutory charter, which gives the agency unique potential to create administrative governance that is of the people, for the people, and by the people.  In detailing past and present efforts to fulfill that potential, this Article invites readers to assist the Commission in its continuing pursuit of more democratic sentencing policy.

How Kisor rolls: Third Circuit rejects guideline commentary in child porn sentencing

I have blogged in the past about how the Supreme Court's ruling in Kisor v. Wilkie, which recast for federal courts the deference they give to agencies in construing agency regulations, has rippled in uneven and unpredictable ways through circuit decisions about how Guideline commentary can inform application of certain USSC Guidelines.  A helpful reader made sure I did not miss the he latest variation on these themes from a panel decision by the Third Circuit in US v. Haggerty, No. 23-2084 (3d Cir. July 9, 2024) (available here). Here is how it begins: 

In imposing a sentence on a defendant who has been found guilty of a child pornography-related offense, a district judge is required, under the United States Sentencing Guidelines, to enhance the applicable Guideline Sentencing range based on the number of “images” “involved” in the offense.  Specifically, under U.S.S.G. § 2G2.2(b)(7)’s graduated sentencing enhancement scheme, that defendant’s Guideline Sentencing range may be enhanced by up to five levels based on the number of images involved.

The calculus is a simple one where the pornographic matter consists only of “still” images. But what about when a moving image — that is, a video — is involved in an offense? The Guideline itself does not answer that question.  So may the judge look to the Commentary to the Guideline, which specifies that each video — no matter its length — constitutes 75 images for purposes of calculating the applicable sentencing enhancement? Whether we should defer to this commentary is the issue we now confront.

We hold that “image,” in the moving picture or video context, unambiguously means “frame.”  Deference to the Commentary’s 75-images rule is therefore unwarranted under Kisor v. Wilkie, 588 U.S. 558 (2019). Instead, the number of frames comprising a moving picture or video will determine the specific sentencing enhancement that a District Judge must apply.  Because the case before us involved videos with over 14,000 total frames, Haggerty probably possessed the requisite number of images to warrant a five-level enhancement under the Guideline.  But because the District Court did not use the frame-counting calculus we now hold is the correct one, we will vacate the District Court’s sentencing order and remand for resentencing in a manner consistent with our holding

A new (sub)space for more sentencing commentary from more voices

I am pleased to highlight today a new place and spece for sentencing discussions, Sentencing Matters Substack.  In this first posting at that location, I provide a bit of the origin story and vision for this new endeavor:

This is a new substack designed to be a new space for commentary about sentencing matters by a set of sentencing-interested academics.

I already have a blog, Sentencing Law and Policy, where I have been writing about sentencing matters for over two decades(!).  But in that space, I do a lot of posts that I might label “reporting” focused around sentencing news and cases and scholarship....  I feel I rarely make as much time as I would like for more and longer commentary posts at SL&P.  And, upon seeing a number of friends and colleagues use Substack for effective original commentary, I started to get a hankering for trying out this medium as one new way to prompt myself to make more time for more longer-form sentencing commentary.

As this idea germinated, a new catalyst for growth emerged: Jonathan Wroblewski, who had served for many years as the Director of the Office of Policy and Legislation in the Criminal Division of the US Department of Justice and also as DOJ’s ex officio respresententative on the US Sentencing Commission, told me he was working on a series of commentary pieces that he was hoping to have posted on Sentencing Law and Policy.  I said I would be honored to place these pieces on SL&P, but I added that I would be even more excited to start a sentencing Substack as a place for both of us (and perhaps others) to share all sorts of sentencing talk about all sorts of sentencing matters.

In addition, my long-time co-managing editor with the Federal Sentencing Reporter, Steven Chanenson, agreed to be another stacker(?) on this new Substack.  Among an array of virtues and contributions, Steve suggested the titled title “Sentencing Matters” for this effort and also got a blessing to use that great title from another legendary sentencing academic who came up with it first.

I am hopeful, though not at all confident, that this new Substack will compliment and enhance my work on this blog.  Indeed, I am already excited to be able to flag Jonahan Wroblewski's first Sentencing Matters Substack posting here, titled "Why I Still Believe in Sentencing Guidelines (Just Not the Current Federal Guidelines)."  Here is a closing section of his posting, which should be read in full:

The insights of these scholars [like Professors Daniel Kahneman and Barry Ruback] also reveal that while a structured and actuarial model of decision making will outperform most humans on consistency and along other dimensions, greater detail in the decision-making structure, like the federal Commission decided to incorporate in drafting the federal sentencing guidelines, does not necessarily bring with it greater validity across dimensions.  In fact, much research suggests that attempts at greater precision will often lead to lower validity.  This is the experience of the federal guidelines.  The guidelines were drafted to dictate precise sentencing outcomes, and many judges recoiled.  But more than that, the attempts at precision ran into psychological and constitutional limitations.  Especially now, 20 years after the Booker decision, it is time to revisit the guideline structure created by the first Commission.

The guidelines are a case study in a failed attempt to use brute force – and too much precision – to get to particular algorithmic outcomes.  Of course, there is another way to bring consistency and sound policy to sentencing decisions.  As Richard Thaler and Cass Sunstein suggested in their best-selling book, Nudge, which was also drawn from Kahneman’s work, policy makers can create a less dictatorial choice architecture to try to move decision makers, like sentencing judges, in a particular direction.  With psychological scholarship in mind, it is not difficult to imagine a simpler federal sentencing decision tree, one ironically with even greater richness than the current federal guidelines and yet simultaneously more understandable to all, including those being sentenced, the victims of crime, and the general public.  One need only look to guidelines system of many states and certain foreign countries that have learned from the U.S. federal system what not to do.  Most everyone familiar with the federal guidelines can agree upon this: they are not nuanced; they are not a nudge; and they are not a model.

Highlighting an era of federal sentencing with "hits" from the Federal Sentencing Reporter

The visionary work of founding editors Daniel J. Freed and Marc L. Miller launched the Federal Sentencing Reporter back in summer 1988 when the federal sentencing guidelines were just starting to be used in federal courts and when the very constitutionality of the Sentencing Reform Act coming under Supreme Court review.  Three dozen years later, the current FSR managing editors (Steve Chanenson and I) have wrapped up FSR's Volume 36 with a republishing of past FSR articles organized around a “greatest hits” theme in a super-sized issue titled "Four Decades of the Great American Sentencing Songbook." 

For both old and new followers of federal sentencing laws and practice, I am hopeful this collection can serve as an invogorating reminder of all the ideas and issues wrapped up in modern sentencing reform history.  And this issue also captures a transition moment in FSR history as Steve and I explain in our short introductory essay.  Here are excerpts from its start and end:

Sentencing is the soundtrack of the criminal law. Sometimes it garners all the attention, starting at the beginning of a criminal prosecution as lawyers and the general public consider what punishments are possible and likely based on alleged wrongdoing.  When other issues garner attention, sentencing concerns are always part of the backbeat — always humming in the minds of criminal justice actors, even if in the background — setting the atmosphere for action in and out of the courtroom.

With this issue closing out volume 36 of the Federal Sentencing Reporter, the managing editors are in the mood for reflection.  This reflective mood is inspired by a coming change in FSR operations.  Since its founding in 1988, the journal has been ably published by the University of California Press, primarily in partnership with the Vera Institute of Justice.  Now, starting with the next volume, FSR will have a new publisher as part of a new arrangement with The Ohio State University, which stepped into Vera’s shoes at the start of this calendar year.  Like all transitions, this presents an opportunity for taking stock.

This issue of FSR looks back — incompletely, by necessity — at the transformative decades of federal sentencing after the Sentencing Reform Act and three dozen years of FSR reporting on the broader landscape of sentencing and punishment....

We have organized the reprinted pieces that follow around a kind of FSR’s "greatest hits" theme, in part to connote and acknowledge that a wide range of people, seen and unseen, have contributed in myriad ways to the long-running Federal Sentencing Reporter band.  As the first reprinted pieces highlight, our show got off to an extraordinary start thanks to the visionary work of founding editors Daniel J. Freed and Marc L. Miller.  For more than a third of a century, our exceptional contributors have kept the FSR beat alive, and we are confident the journal will continue to thrive for decades to come.  We hope you enjoy this push of the replay button for the final FSR issue published by the wonderful producers of this sentencing experience at the University of California Press.

Hoping admin law gurus will help us all understand what Loper Bright might mean for federal sentencing law

More than 30 years ago, I had the great fortune to take administrative law in law school from then-Judge Stephen Breyer.  Though I am sure I learned a lot in that admin law course, what I most remember learning is that I did not want to practice admin law.  And yet, ironically I suppose, a good portion of my professional career has been devoted to considering (and sometimes criticizing) the work of the only federal administrative agency localed in the judicial branch, the US Sentencing Commission.  Moreover, especially since the First Step Act created all sorts of new provisions to be applied to federal prisoners, I have been giving ever more attention to the work of the administrative agency known as the Federal Bureau of Prisons (which is within the bigger administrative agency known as the US Department of Justice).  I am not sure it is surprising as much as it is intriguing that a whole lot of federal sentencing and correections law emerge from the actions of federal administrative agencies.

This post's preamble is meant to tee up the isssue flagged in the title, as the Supreme Court last week issued a significant administrative law ruling in Loper Bright Enterprises v. Raimondo, No. 22-451, (S. Ct. June 28, 2024) (available here), wherein the Court formally eliminated so-called Chevron deference in the consideration of challenges to actions by adminstrative agencies. Here is the key closing statement of the ruling in the case from Chief Judge Roberts' opinion for the Court:

Chevron is overruled.  Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority, as the APA requires.  Careful attention to the judgment of the Executive Branch may help inform that inquiry.  And when a particular statute delegates authority to an agency consistent with constitutional limits, courts must respect the delegation, while ensuring that the agency acts within it.  But courts need not and under the APA may not defer to an agency interpretation of the law simply because a statute is ambiguous.

So how does this significant ruling impact actions by the US Sentencing Commission and the Bureau of Prisons?  Candidly, I do not know.  I have already received a number of emails from a number of folks wondering if Loper Bright might be a federal sentencing game-changer in some respect, and I am always inclined to think probably not.  But as flagged in a post here a couple years ago, the Supreme Court's ruling in Kisor v. Wilkie, 139 S. Ct. 2400 (2019), recast for federal courts "the deference they give to agencies ... in construing agency regulations" and that ruling has rippled in uneven and unpredictable ways through circuit decisions about how Guideline commentary can inform application of certain USSC Guidelines.  And, writing here in Forbes, Walter Pavlo notes on-going litigation over BOP's implementation of the First Step Act and concludes with this forecast: "The Chevron ruling will certainly prompt more lawsuits against the BOP in the coming months as prisoners will simply be asking for what Congress intended them to have ... less time in prison."

Adding to the intrigue, I suppose, is the fact that the Department of Justice (an agency) is currently arguing in courts nationwide that the US Sentencing Commission (an agency) misinterpreted the Sentencing Reform Act and the First Step Act when it recently amended USSG §1B1.13, Reduction in Term of Imprisonment Under 18 U.S.C. § 3582(c)(1)(A) (Policy Statement), to provide in subsection (b)(6) that, when "a defendant received an unusually long sentence and has served at least 10 years of the term of imprisonment, a change in the law ... may be considered in determining whether the defendant presents an extraordinary and compelling reason" to potentially permit a reduction in his imprisonment term.   Notably, the SRA expressly delegates to the USSC the responsibility to "describe what should be considered extraordinary and compelling reasons for sentence reduction," 28 USC § 994(t), and so I would think Loper Bright still supports courts showing "respect [to] the delegation."  But I have a feeling DOJ will not read Loper Bright to end its legal attack on the amended guideline.

There is on-going litigation before a number of circuits concerning this amended USSC's policy statement, and it will be interesting to see if circuit judges rely heavily or at all on Loper Bright as they sort through the claim by DOJ that the USSC actions were not kosher.  And if DOJ prevails and/or Loper Bright supports efforts to assail the US Sentencing Guidelines on statutory grounds, I wonder whether defendants and defense attorneys might be able to champion other statutory language in 28 USC § 994 to assail other Guidelines.  For example, I have long thought many Guidelines — and particularly key provisions of the fraud and drug guidelines — fail to comply with 994(j), wherein Congress provided that the "Commission shall insure that the guidelines reflect the general appropriateness of imposing a sentence other than imprisonment in cases in which the defendant is a first offender who has not been convicted of a crime of violence or an otherwise serious offense."  Could and should whole guidelines or particular subprovisions be attacked by defendants whenever in non-violent, low level cases these provisions do not recommend "imposing a sentence other than imprisonment"? 

My sense is that it will take quite a while before we fully understand the impacts of the Loper Bright ruling in awide array of legal arenas.  I am just starting early with my general call that the folks smart enough to really understand administrative law make sure not to forget to helping all of us working through the possible federal criminal law echoes.

US Sentencing Commission releases latest "compassionate release" data through March 2024

The US Sentencing Commission today updates some of its data on sentence reduction motions on this webpage, particularly though this new Compassionate Release Data Report running through the second quarter of USSC Fiscal Year 2024 (meaning through the end of March 2024).   Notably, the latest data run includes information for nearly six months after the Commission's new "sentence reduction" guideline became law, and nearly a year after the Commission submitted this guideline to Congress.

As I have noted before, the long-term data going back to the height of the COVID pandemic period reveals, unsurprisingly, that we now see many fewer sentence reduction motions filed or granted than in years past.  Though there are month-to-month variations, it would be roughly accurate to say recent months see, on average, a few dozen compassionate release motions granted and a couple hundred  motions denied nationwide.  And the number of motions resolved and the grant rates from various districts remain quite different within and among circuits.

There are all sorts of other interesting data points in this new report relating to both the crimes and backgrounds of defendants bringing these motions and getting sentence reductions.  Especially because there are so many elements to sentence reduction motions and so much discretion in the hands of district judges when considering these motions, I continue to find these data stories fascinating, and I am hopeful researchers (and the USSC) will keep exploring how this part of the First Step Act continue to function.

US Sentencing Commission releases big report on "Methamphetamine Trafficking Offenses in the Federal Criminal Justice System"

Via email, I received news of this big new report from the US Sentencing Commission titled "Methamphetamine Trafficking Offenses in the Federal Criminal Justice System."  This 66-page report provides lots of important facts and figure about the drug offense that is now the basis for the most and most severe federal drug sentences in recent years.  This USSC webpage has an overview and key findings from the report and this USSC news release provide a helpful summary:

A new U.S. Sentencing Commission study found substantial increases in both the prevalence of federal methamphetamine trafficking sentences, and the purity levels of methamphetamine trafficked in the United States.

Over the past 20 years, the number of individuals sentenced federally for methamphetamine trafficking has risen by 168 percent, with methamphetamine now accounting for nearly half (49%) of all federal drug trafficking cases.

The study also revealed that the methamphetamine tested in fiscal year 2022 was on average over 90% pure with a median purity of 98%.  Furthermore, the methamphetamine tested was uniformly highly pure regardless of whether it was sentenced as methamphetamine mixture (91% pure on average), methamphetamine actual (93%) or Ice (98%).  By comparison, in 2000, the Drug Enforcement Administration reported that methamphetamine purity ranged from 10% to 80% depending on location.

Methamphetamine is one of only five controlled substances where purity affects federal statutory and guideline penalties, resulting in higher penalties when purity levels are confirmed by laboratory testing.  By federal statute, it takes ten times as much mixture compared to actual methamphetamine to trigger mandatory minimum penalties.

Because methamphetamine penalties are based in part on purity, penalty exposure and sentencing outcomes are impacted by confirmed purity levels.  The Commission’s study found that testing practices varied across the nation and that testing rates across judicial circuits were inconsistent — ranging from under 60% to over 80% of the time.  Notably, methamphetamine seized in southwest border districts was more likely to undergo laboratory testing (85%) than in non-border districts (70%).

Methamphetamine trafficking sentences averaged 91 months in fiscal year 2022, the longest among the major federal drug trafficking offenses, including fentanyl (65 months) and heroin (66 months). In addition, methamphetamine trafficking offenses carried mandatory minimum penalties more often (74%) than all other drug trafficking offenses (57%).

Rounding up some early accounts of how Hunter Biden will be sentenced

I have already seen a handful of commentaries mapping out the dynamics of the federal sentencing of Hunter Biden following his conviction on three felonies.  This New York Times piece, headlined "Will Hunter Biden Go to Jail? Here’s What His Sentence Could Look Like," provides these useful particulars:

According to the most recent manual published by the United States Sentencing Commission, which sets recommended sentencing guidelines, someone in Mr. Biden’s position would typically face 15 to 21 months’ imprisonment for offenses related to the unlawful receipt, possession, or transportation of firearms.

From 2019 to 2023, just 52 defendants were sentenced in a similar category as Mr. Biden, and 92 percent were sentenced to serve prison time with a median prison term of 15 months, according to the commission’s data. Around 8 percent of people in that category received probation or a fine.

But judges frequently depart from the suggested guidelines when handing down a sentence and may reduce the time spent in prison in light of the particular circumstances unique to each case.

And here are a few other press pieces discussing some sentencing issues at some length:

From CBS News, "Is Hunter Biden going to prison? What to know about the possible sentence after his conviction"

From PBS News Hour, "What federal guidelines suggest for Hunter Biden’s sentencing"

From the New York Post, "Hunter Biden judge once gave stiff sentence in similar gun case"

From USA Today, "What's next for Hunter Biden? Sentencing, likely appeal and looming trial on tax charges"

"DPA Discounts"

The title of this post is the title of this new paper now available via SSRN authored by Todd Haugh and Mason McCartney. Here is its abstract:

There is a longstanding debate over the propriety of corporate deferred and nonprosecution agreements, those semi-private settlements entered into between prosecutors and companies under criminal investigation.  That debate is occurring in the shadow of the growing use of these DPAs and NPAs, a trend that recent DOJ policy changes suggest will only increase.  Regardless of where one stands on the debate, all agree that the fair, consistent, and transparent awarding and application of these agreements is paramount. 

Based on an empirical analysis of more than ten years of DPAs and NPAs used in Foreign Corrupt Practices Act cases, we find that the monetary penalties imposed on companies are consistently discounted below the low end of the fine range calculated pursuant to the Organizational Sentencing Guidelines, sometimes even below the monetary benefits companies received from their wrongdoing.  Further, the culpability score calculations made pursuant to the Guidelines, which are designed to calibrate a company's ultimate penalty with its level of wrongdoing, are not statistically significant in determining penalties.  Instead, it appears a hardened norm has developed at the DOJ of giving an almost uniform 25% discount off the low end of the fine range regardless of a company's culpability.  This norm is remarkably consistent despite wide variability in corporate behavior and the likely bargaining positions of prosecutors and corporate defendants.  These findings call into question the current oversight of DPAs and NPAs and, ultimately, their use in combatting corporate crime, thereby shedding new empirical light on what has become the primary means of holding our most high-profile corporate wrongdoers accountable.

US Sentencing Commission starts releasing latest "Quick Facts" publications

I noticed that the US Sentencing Commission has started releasing a new set of its terrific "Quick Facts" publications with updates drawing on the USSC's full fiscal year 2023 data.  Long-time readers have long heard me praise the USSC for producing these convenient and informative short data documents, which are designed to "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format." Here are the newesr postings by the USSC on the "Quick Facts" page:

Offender Groups

• NEW Individuals in the Federal Bureau of Prisons (May 2024)
• NEW Career Offenders (May 2024)

Drugs

• NEW Drug Trafficking (May 2024)
• NEW Methamphetamine Trafficking (May 2024)
• NEW Fentanyl Trafficking (May 2024)
• NEW Fentanyl Analogue Trafficking (May 2024)

There are any number of interesting factual nuggets in these documents that are fascinating, but I continue to be struck by how much of the federal caseload (and federal prison population) is consumed by drug cases and especially methamphetamine and various opioid. Crack cocaine and marijuana cases, which have long garnered so much attention, are now just a tiny piece of an otherwise still large federal drug war reality.

US Sentencing Commission sets out broad, general request concerning proposed priorities for 2024 to 2025 amendment cycle

Last Friday, the US Sentencing Commission released this interesting document, its "Federal Register Notice of Proposed 2024-2025 Priorities."  I had been waiting to get an "official" email from the sentencing commission describing the document before blogging about it, and late yesterday that email came with this heading: "A Request from Judge Carlton W. Reeves, Chair, U.S. Sentencing Commission."  Here is the text of the email, which serves to summarize the gist of the Federal Register Notice:

I’m writing to ask you for a small favor. Most summers, the Sentencing Commission announces the work we plan to prioritize over the coming year.  This summer, to mark the 40th anniversary of the Commission’s creation (and twenty years post Booker), we’re doing something different. We’re asking people – including you – to tell us what to do this year and in the years to come.

My request is this: please take five minutes of your time to tell the Commission how we can create a fairer, more just sentencing system.  Tell us how to revise the Guidelines.  Tell us what issues to study or what data to collect.  Tell us what workshops to conduct, what hearings to hold, what advisory groups to convene, or what ways the Commission can better serve you.  Or even just tell us what big picture issues you’d like us to tackle – or what technical problems you’d like us to look into.

Trust me, I know how busy daily lives are, so we’ve made it easy to give us your thoughts.

You can type a paragraph (or even a sentence or two!) into our Public Comment Submission Portal at: https://comment.ussc.gov.  If you want to write a letter, you can submit it through the Portal, too, or via snail mail to United States Sentencing Commission, One Columbus Circle, N.E., Suite 2-500, Washington, D.C. 20002-8002, Attention: Public Affairs – Priorities Comment.

It doesn’t matter how you speak to us. And it doesn’t matter how short or long your comment is.  What matters is that you speak to us.  Please encourage your colleagues to do the same.

One comment can make the difference. Remember: when you speak to the Commission … you will be heard.

Sincerely,

Carlton W. Reeves

I am very pleased that the Commission, after two years of intricate work on a range of pressing issues, is now asking for help while seemingly being prepared to take a big picture look at the full sentencing system and the Commission's own work therein. Notably, the formal Federal Registar Notice frames this big picture inquiry in terms of key statutory provision of the Sentencing Reform Act. Here is how it substantively starts:

In light of the 40th anniversary of the Sentencing Reform Act of 1984, Pub. L. 98–473, 98 Stat. 1987 (1984), the Commission intends to focus on furthering the Commission’s statutory purposes and missions as set forth in the Sentencing Reform Act, including:

(1) Establishing “sentencing policies and practices for the Federal criminal justice system that . . . assure the meeting of the purposes of sentencing”—namely, rehabilitation, deterrence, just punishment, and incapacitation. 28 U.S.C. 991(b)(1)(A).

(2) Establishing “sentencing policies and practices for the Federal criminal justice system that . . . provide certainty and fairness in meeting the purposes of sentencing, avoiding unwarranted sentencing disparities.” 28 U.S.C. 991(b)(1)(B).

(3) Establishing “sentencing policies and practices for the Federal criminal justice system that . . . reflect, to the extent practicable, advancement of knowledge of human behavior as it relates to the criminal justice process.” 28 U.S.C. 991(b)(1)(C).

(4) “[M]easuring the degree to which the sentencing, penal, and correctional practices are effective in meeting the purposes of sentencing.” 28 U.S.C. 991(b)(2).

There is a lot more to the USSC's official notice (in pdf form here), but the message from the Commission seems pretty clear: it is prepared to, and is perhaps even eager to, start (re)considering any and all aspected of the federal sentencing system.  Kudos to the USSC for starting off its next cycle of work this way.

A last call for papers: Federal Sentencing Reporter issue on "Booker at 20"

In this prior post a couple of months ago, I set out the full call for papers for a forthcoming (early 2025) issue of the Federal Sentencing Reporter in which we will note (and celebrate? criticize?) the federal sentencing system's 20 years of functioning under the rules created by the Supreme Court's ruling in Booker.  As noted there and in subsequent posts, the "soft" deadline for receiving drafts for this FSR issue is this week (though we may have a bit of flexibility).  For full effect, here is a full reprint of the original call:

The US Supreme Court's January 2005 decision in United States v. Booker ushered in a new era for federal sentencing.  Through a dual set of dueling 5-4 opinions, Booker made the guidelines “effectively advisory,” rather than “mandatory,”  after the Court concluded that judicial fact-finding to increase mandatory guideline ranges violated the Fifth and Sixth Amendments.   The Court’s opinion essentially invited Congress to rework the federal sentencing system in the wake of this ruling, but the Booker advisory guideline system has proved remarkably durable: the mandatory guideline system was operational for 16 years, but we are now approaching the 20th anniversary of Booker and the advisory guideline system it created.

Though constitutionally and functionally a sea change, the Booker ruling has seemingly had a relatively limited effect on sentence severity and reliance on imprisonment in the federal system.  Data from the US Sentencing Commission reveal that in fiscal year 2003, the last full year of data before the disruptions of Booker and its predecessor ruling in Blakely v. Washington, just over 69,000 persons were sentenced in federal courts, with nearly 87% receiving a prison term and with the average prison term being 48 months.  Data from fiscal year 2023, the latest full year of federal sentencing data assembled by the Commission, indicate that just over 64,000 persons were sentenced in federal courts with nearly 93% receiving a prison term and with the average prison term being 52 months.  The relative consistency of federal sentencing outcomes in the Booker era is striking, especially given that Congress enacted two notable sentence-reducing statutes in this period through the Fair Sentencing Act of 2010 and the First Step Act of 2018.

Still, sentencing below guideline ranges has increased significantly in the Booker era, and lawyers and sentencing judges now place greater emphasis on the statutory sentencing factors of 18 USC § 3553(a) and relatively less emphasis on guideline particulars.  Data from FY 2023 indicate that only 42% of sentences are imposed within the guideline range, though the same Commission data reveal that the guidelines continue to exert a kind of gravitational pull on sentence lengths even though not regularly followed.  And, of course, Booker did not directly impact the force of statutory mandatory minimums, which still shape and cast shadows on plea bargaining and other aspects of the federal sentencing process. 

Nearly 20 years have passed since Booker, and the editors of the Federal Sentencing Reporter are eager to invite judges, lawyers, other sentencing practitioners, legal academics, and sentencing researchers, to share thoughts on “Booker at 20” for publication in an early 2025 FSR issue.  FSR commentaries for this issue could tackle foundational issues (such as the Court’s ruling in Booker and follow-up cases), discrete application issues (such as why certain advisory guidelines are more likely to be followed or ignored), institutional concerns (such as how Congress and the Commission and the Justice Department have responded to Booker), or any other topic of interest or concern to modern federal sentencing policy and practice.  FSR welcomes commentaries from all perspectives, including insights from sentencing experiences (with or without guidelines) in the states and other countries.  Everyone with an informed interest in 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 relatively light use of citations.  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 May 28, 2024, and later submissions will be considered as space permits.  Submissions should be sent electronically to [email protected] with a clear indication of the author and the author’s professional affiliation.

Notable (and notably unclear) accounting of possible impact of retroactive application of new guideline amendments

The US Sentencing Commission has sent to Congress a handful of new guideline amendments that reduce the guideline range for some individuals (details here).  That means the USSC is statutorily required to decide whether these amendments should be applied retroactively to persons currently incarcerated.  Before a vote on retroactivity, the USSC staff typically prepares a retroactivity impact analysis to aid the USSC's deliberation over retroactivity, and this past Friday the USSC made public this 21-page document titled "Analysis of the Impact of Certain 2024 Guideline Amendments if Made Retroactive" (hereinafter "retroactivity memo").

The highest-profile amendment to be considered for retroactivity is on acquitted conduct, which redefines relevant conduct to exclude conduct for which the defendant was criminally charged and acquitted in federal court.  The retroactivity memo notes that the USSC staff estimated "that 1,971 persons currently incarcerated in the BOP were acquitted of one or more of the charges against them."  (Notably, that's not much more than 1% of the current federal prison population.)  But, as the retroactivity memo further explains, USSC research staff were "unable to determine whether and to what extent the courts may have relied upon any of the offense conduct related to the charge or charges for which the individual was acquitted in determining the guideline range; therefore, staff cannot estimate what portion of approximately 1,971 persons might benefit from retroactive application of the amendment."

I suspect only a limited percentage of persons who were acquitted of some charge could show that their guideline ranges were enhanced based on acquitted conduct.  But this reality, in my view, should make the Commission all that much more willing to have its new acquitted conduct guideline applied retroactively.  Though acquitted conduct guideline enhancements are relatively rare, those now serving prison time based on acquitted conduct ought to have a chance to argue for a reduced sentence.

Interesting, the retroactivity memo also details at length that all the other guideline amendments that might be made retroactive this year also have all sorts of data uncertainty regarding the reach of retroactivity.  Here is a cursory accounting drawn from the retroactivity memo: (a) one amendment restricting a 4-level enhancement applicable when a firearm's serial number of a firearm has been “altered or obliterated” could apply to as many as 1,452 current federal prisoners, but the amendment functions so that USSC "staff cannot determine in which of the 1,452 cases" might be impacted by the amendment"; (b) another amendment concerning the grouping rules for firearm offenses could impact "102 cases that met the criteria" of the new guideline, but the fact-specific nature of the grouping rules [meant] staff cannot determine with precision the cases in which the grouping rules might have been applied in a manner inconsistent with the amendment"; (c) another amendment to restrict how the drug guidelines should be calculated could impact "538 of those persons [who] were sentenced using a Base Offense Level" a certain way, but "staff cannot determine in which of the 538 cases the court may have applied a BOL" this way.

Long story short, it is clear that not very many current federal prisoners could possibly be impacted by making new guidelines retroactive (likely less than 2% of the current BOP population), but it is actually quite unclear if any significant number of current prisoners would benefit.  Whether and how these small numbers and the data uncertainty might impact the Commission's retroactivity decision remains to be seen.

Notable (below-guideline) sentence for key anti-abortion activist after trial conviction

As reported in this Washington Post article, a "30-year-old antiabortion activist who kept fetuses in a Capitol Hill home was sentenced Tuesday to nearly five years in prison for illegally blockading and breaking into a reproductive health clinic in D.C." Here is more about a number of sentencings in this case:

Lauren Handy, of Alexandria, Va., received a 57-month term and became the first person to be sentenced for the combination of conspiring to violate reproductive health rights under a federal civil rights law and violating the Freedom of Access to Clinic Entrances Act, a 1994 law that prohibits threats to and obstruction of a person seeking reproductive health services or providers....

Handy, convicted by a jury last year, was charged along with nine others after the group launched an antiabortion blockade at the Washington Surgi-Clinic in 2020.  Handy’s was the first of four clinic-access cases pending trial or sentencing around the country in which the Justice Department under the Biden administration has charged defendants with obstructing clinic access in combination with a conspiracy against rights — a civil rights law passed after the Civil War that makes it punishable by up to 10 years in prison to “conspire to injure, oppress, threaten, or intimidate any person” exercising a constitutional or legal right. Violations of the 1994 clinic access law alone are punishable by up to a one-year prison term.

Handy gained additional notoriety when, on the same day a federal indictment was announced against the defendants, D.C. police discovered five fetuses in a Capitol Hill rowhouse basement where she had been staying. The criminal trial, however, had nothing to do with the fetuses that antiabortion activists say they collected from outside the same D.C. abortion clinic, and authorities have not charged anyone in that matter.

Handy and co-conspirators live-streamed a preplanned “lock-and-block” blockade that used force and physical obstructions to shut down the D.C. clinic on Oct. 22, 2020, Kollar-Kotelly said in summarizing trial evidence. Prosecutors said Handy was the leader of the group that orchestrated the blockade and recruited participants, arranged lodging and used a fake name to book an appointment. A nurse was injured and patients were traumatized in the incursion, including two women who begged to enter for treatment and one who suffered a medical emergency, the judge said.

“It was not peaceful, and it was not contemplated to be peaceful,” Assistant U.S. Attorney Sanjay Patel argued in a 90-minute sentencing hearing. The government sought a sentence at the high end of a 63- to 78-month range recommended by federal guidelines — up to 6½ years — based on Handy’s leadership role, obstructive conduct, the violence and victims in the case.

Prosecutors called her “an active antiabortion extremist” who has organized clinic blockades around the country, resulting in four convictions for which she was sentenced up to 45 days in jail, with all terms suspended or pending appeal. Patel also cited the need for deterrence, saying that without a stiffer punishment “the purpose of sentencing may be lost on this defendant.”

Also sentenced Tuesday with Handy were John Hinshaw, 69, of Levittown, N.Y., who received 21 months of incarceration; and William Goodman, 54, of the Bronx, who was sentenced to 27 months....

Defense attorney Martin A. Cannon cited more than nine letters of support for Handy and likened her actions to those of civil rights leaders such as Martin Luther King Jr. and Rosa Parks, saying she “did not act out of self-interest, but … at her own peril,” in good faith and out of conscience.  Cannon said Handy was a peaceful, kindhearted person with a history of philanthropic work in Haiti and on behalf of homeless people who was “trying to save babies from being killed.”  He continued, “Lauren did nothing on her own that was violent or forceful.  She did not, I submit, anticipate any of the force that resulted.”

Kollar-Kotelly said that to the contrary, the evidence showed that Handy and her co-plotters planned to push their way into the clinic, and fretted beforehand over possible use of violence.  She said the case was “not a referendum on abortion, but violation of civil rights” of patients and medical practitioners.

The judge concluded that while Handy and her co-conspirators were entitled to have “very strong views about abortion,” she found it disheartening that they “showed no compassion or empathy to women patients who were human beings in pain and seeking medical care.”

Handy and seven co-defendants, including Idoni and Geraghty, were found guilty on all counts in two federal jury trials in August and September.  Another was convicted at a bench trial before a judge in November, and one pleaded guilty. The man who pleaded guilty, Jay Smith, 32, of Freeport, N.Y., received 10 months last year after pushing a nurse who fell and suffered an ankle injury in the blockade.  The remaining six will be sentenced later this month.

Kollar-Kotelly noted that other civil rights conspiracy cases involving the Freedom of Access to Clinic Entrances Act are pending in Tennessee, Michigan and Florida. Because no one else has been sentenced under the laws in combination, she said she relied on federal sentencing guidelines for the alleged and convicted conduct.

I have not followed these cases closely, so I may not have the facts right, but this certainly seems to be another situation involving a trial penalty.  Handy, who seemngly did not directly commit any violence, gets almost 5 years in prison after exercising her tiral rights; Smith, who injured a nurse, is sentenced to only 10 months after pleading guilty.  Handy does seem to have some aggravating history and a leadership role, so the differential here may be the result of various other factors.  But still, based on the facts reported here, I am not sure other facts really full account for Handy getting a sentence nearly six times longer.

New US Sentencing Commission data on retroactive application of criminal history amendments

Last year, US Sentencing Commission voted for (delayed) retroactive application of its Guideline amendments relating to criminal history.  There were two major parts to these amendment that reduced the sentencing range for certain defendants with "status" points (Part A) and for other defendants who would now be deemed "zero-point" offenders (Part B).   And last week, the Commission release some new data on how retroactivity is playing out in district courts.  Here are links to the USSC's data reports:

NEW Retroactivity Data on Part A

NEW Retroactivity Data on Part B

There are lots of interesting little stories in these data runs, but I figured I might  here highlight the top-line numbers. Specifically, for the Part A "status point" amendment, a total of 2,988 defendants have received sentence reductions averaging 10 months.  For the Part B "zero point" amendment, a total of 2,143 defendants have receive sentence reductions averaging 13 months.

Adding this up, we get at total of 57,738 months of reduced federal prison time (which is a little over 4800 years of imprisonment for those not great at dividing by 12).  Given that the average annual cost of federal incarceration is over $42,000, we might reasonably calculate a savings of over $200 million to US taxpayers resulting from the Commission's decision to make its new criminal history guidelines retoractive.

I presume future retroactivity data runs will report in some more defendants getting reductions under the new guidelines, and I also expect other data will also show a significant number of newly sentenced defendants also benefiting from these new criminal history guidelines.  And especially since there were built on the USSC's copious revidivism data, I am hopeful that there reduction do not come at any real public safety costs.