Sentencing Law and Policy

Split Fifth Circuit panel holds that "changes in the law" can be a basis for sentence reduction under § 3582(c)(1)(A)(i)

A helpful colleague made sure I did not miss a notable new panel decision from the Fifth Circuit in US v. Jean, No. 23-40463 (5th Cir. July 15, 2024) (available here).  The case concerns the long-simmering question of whether "changes in the law" can provide a basis for a sentence reduction under § 3582(c)(1)(A)(i), and this appeal concerns review of a reduction granted before the new US Sentencing Commission amended guideline was applicable.  Both the facts and reasoning in Jean are worth reading in full, but here are a few key passages from the majority opinion:

The question before the court is a simple one: does a sentencing court have the discretion to hold that non-retroactive changes in the law, when combined with extraordinary rehabilitation, amount to extraordinary and compelling reasons warranting compassionate release?  Considering this question carefully, we answer it in the affirmative.

We explain first the discretion afforded to a sentencing court.  With this discretion in mind, we conclude that there is no textual basis for creating a categorical bar against district courts considering non-retroactive changes in the law as one factor.  Next, we explain that our precedent does not prevent us from reaching this outcome.  Nor is this outcome inconsistent with other unpublished decisions from this court. And finally, we explain that, although the Sentencing Commission’s November 1, 2023 Amendments are not binding on appeal, the Amendments support the outcome we reach today....

In deciding the same question before us, the United States Court of Appeals for the Ninth Circuit in United States v. Chen concluded that “[t]o hold that district courts cannot consider non-retroactive changes in sentencing law would be to create a categorical bar against a particular factor, which Congress itself has not done.” 48 F.4th 1092, 1098 (9th Cir. 2022).  We agree.  Congress has never wholly excluded the consideration of any factors. Instead, it appropriately “affords district courts the discretion to consider a combination of ‘any’ factors particular to the case at hand.” Id....

It is within a district court’s sound discretion to hold that nonretroactive changes in the law, in conjunction with other factors such as extraordinary rehabilitation, sufficiently support a motion for compassionate release. To be clear, it is also within a district court’s sound discretion to hold, after fulsome review, that the same do not warrant compassionate release. For this court to hold otherwise would be to limit the discretion of the district courts, contrary to Supreme Court precedent and Congressional intent. We decline the United States’ invitation to impose such a limitation. And, of course, district courts are now guided by the November 1, 2023 Amendments in future cases.

The dissent authored by Judge Jerry Smith starts this way:

The kindest thing I can say about the majority’s zealous1 opinion is that it is a horrifying violation of this court’s well-respected rule of orderliness. I respectfully dissent.

Senators Durbin and Grassley introduce again set of FIRST STEP follow-up bills

For a wide variety of reasons, I am not at all hopeful that any form of federal sentencing reform will be enacted in the current Congress.  But I was still pleased to learn today, thanks to an email from a helpful reader, that a pair of notable Senators are still seeking to advance some notable (previously stalled) sentencing bills.  This press release, headlined "Durbin, Grassley Reintroduce Criminal Justice Reform Bills," discusses the bills, and here is how it starts:

U.S. Senate Majority Whip Dick Durbin (D-IL), chairman of the Senate Judiciary Committee, and Senator Chuck Grassley (R-IA), the lead sponsors of the landmark First Step Act (FSA), reintroduced three pieces of criminal justice reform legislation today to further implement the FSA and advance its goals.  The First Step Act, which was signed into law in 2018, is bipartisan criminal justice reform legislation designed to make our justice system fairer and our communities safer by reforming sentencing laws and providing opportunities for those who are incarcerated to prepare to reenter society successfully.  Today, Durbin and Grassley reintroduced the First Step Implementation Act, the Safer Detention Act, and the Terry Technical Correction Act.

“In 2018, Congress came together to pass the most important criminal justice reform law in a generation,” Durbin said.  “But as its name suggests, it was just the first step.  In order to keep making our justice system fairer and our communities safer, we must continue reforming our antiquated and outdated sentencing laws and providing opportunities for those who are incarcerated to prepare to reenter society successfully.  Senator Grassley and I will continue to work together to ensure that these goals are fully met.”

“Criminals need to face just penalties, and our system should seek to prevent recidivism.  Our work on the First Step Act did that, and our new package of bills will further the goals of fairness, public safety and reduced crime.  The programs we are bolstering aim to help make inmates productive citizens when they reenter society, and not fall back into a life of crime.  I appreciate my longtime cooperation with Senator Durbin, and look forward to the work ahead,” Grassley said.

Notable Seventh Circuit discussion of how a combination of factors can amount to "extraordinary and compelling reasons"

A helpful colleague made sure I did not miss a short ruling authored by Judge Frank Easterbrook for the Seventh Circuit concerning factors in support of motions for compassionate release. The ruling in US v. Vaughn, No. 22-2427 (7th Cir. March 15, 2023) (available here), is worth reading in full, and this is part of the discussion that seems especially notable:

Vaughn maintains that his arguments collectively identify “extraordinary and compelling reasons” even if none of them does so independently. At least two circuits have held that it is permissible to consider reasons jointly as well as severally. United States v. Ruvalcaba, 26 F.4th 14, 28 (1st Cir. 2022); United States v. McGee, 992 F.3d 1035, 1048 (10th Cir. 2021). But one has gone the other way, remarking: “[W]hy would combining unrelated factors, each individually insufficient to justify a sentence reduction, amount to more than the sum of their individual parts?” United States v. McKinnie, 24 F.4th 583, 588 (6th Cir. 2022). See also United States v. McCall, 56 F.4th 1048, 1066 (6th Cir. 2022).

The Sixth Circuit’s rhetorical question has some intuitive appeal. Often 0 + 0 = 0. But not always. One persistent error in legal analysis is to ask whether a piece of evidence “by itself” passes some threshold — to put evidence in compartments and ask whether each compartment suffices. But when one court of appeals asked whether Fact A showed probable cause for an arrest, then whether Fact B did so, whether Fact C did so, and so forth, the Supreme Court reversed in a sharp opinion reminding all judges that evidence should not be compartmentalized.

[T]he [court of appeals] viewed each fact “in isolation, rather than as a factor in the totality of the circumstances.”  This was “mistaken in light of our precedents.”  The “totality of the circumstances” requires courts to consider “the whole picture.”  Our precedents recognize that the whole is often greater than the sum of its parts — especially when the parts are viewed in isolation. Instead of considering the facts as a whole, the [court of appeals] took them one by one. … The totality-of-the-circumstances test “precludes this sort of divide-and-conquer analysis.”

District of Columbia v. Wesby, 138 S. Ct. 577, 588 (2018) (internal citations omitted). Similarly, we have held that in employment-discrimination cases a district court must consider the evidence as a whole, rather than sorting facts into boxes and asking whether each suffices.... Ortiz v. Werner Enterprises, Inc., 834 F.3d 760, 765–66 (7th Cir. 2016).

If we conceive of “extraordinary and compelling reasons” as those differentiating one prisoner’s situation from 99% of other prisoners, it is easy to see how Circumstance X could be true of only 10% of prisoners, Circumstance Y of 10%, and Circumstance Z of 10% — each insufficient to meet the threshold, but if they are independent then collectively enough to place the applicant among only 0.1% of all federal prisoners.  We do not say here that 99% is the threshold for “extraordinary and compelling reasons”; in the absence of guidance from the Sentencing Commission, identifying the threshold is committed to the discretion of district judges, with deferential appellate review.  See United States v. Gunn, 980 F.3d 1178 (7th Cir. 2020).  Our point, rather, is that no matter how the threshold is defined, a combination of factors may move any given prisoner past it, even if one factor alone does not.  This leads us to disagree with the Sixth Circuit’s approach.

This does not help Vaughn in the end, however, because the discretion to evaluate multiple circumstances resides principally in the district courts.

Ninth Circuit panel interprets FIRST STEP amendment to statutory safety valve to greatly expand who can avoid federal mandatory-minimum sentences

A helpful reader made sure I did not miss a significant new Ninth Circuit panel ruling in US v. Lopez, No. 19-50305 (9th Cir. May 21, 2021) (available here).  Here is how the opinion gets started:

Title 18 U.S.C. § 3553(f), commonly called the “safety valve,” allows a district court to sentence a criminal defendant below the mandatory-minimum sentence for certain drug offenses if the defendant meets the criteria in § 3553(f)(1) through (f)(5).  In 2018, Congress amended one of the safety valve’s provisions: § 3553(f)(1).  See First Step Act of 2018, Pub. L. No. 115-391, § 402, 132 Stat. 5194, 5221. Section 3553(f)(1) focuses only on a criminal defendant’s prior criminal history as determined under the United States Sentencing Guidelines. See generally 18 U.S.C. § 3553(f)(1). As amended, § 3553(f)(1) requires a defendant to prove that he or she “does not have” the following: “(A) more than 4 criminal history points . . . (B) a prior 3-point offense . . . and (C) a prior 2-point violent offense.” Id. § 3553(f)(1)(A)–(C) (emphasis added).

As a matter of first impression, we must interpret the “and” joining subsections (A), (B), and (C) under § 3553(f)(1). If § 3553(f)(1)’s “and” carries its ordinary conjunctive meaning, a criminal defendant must have (A) more than four criminal-history points, (B) a prior threepoint offense, and (C) a prior two-point violent offense, cumulatively, before he or she is barred from safety-valve relief under § 3553(f)(1).  But if we rewrite § 3553(f)(1)’s “and” into an “or,” as the government urges, a defendant must meet the criteria in only subsection (A), (B), or (C) before he or she is barred from safety-valve relief under § 3553(f)(1). Applying the tools of statutory construction, we hold that § 3553(f)(1)’s “and” is unambiguously conjunctive. Put another way, we hold that “and” means “and.”

I believe that this statutory construction means that even more federal drug defendants will be able to benefit from the statutory safety valve thanks to the FIRST STEP Act than some may have thought. But, as the main opinion explains as it concludes, it is the statutory text that ultimately matters:

We recognize that § 3553(f)(1)’s plain and unambiguous language might be viewed as a considerable departure from the prior version of § 3553(f)(1), which barred any defendant from safety-valve relief if he or she had more than one criminal-history point under the Sentencing Guidelines.  See Mejia-Pimental, 477 F.3d at 1104.  As a result, § 3553(f)(1)’s plain and unambiguous language could possibly result in more defendants receiving safety-valve relief than some in Congress anticipated.

But sometimes Congress uses words that reach further than some members of Congress may have expected.  See Bostock, 140 S. Ct. at 1749 (noting that Congress’s plain language sometimes reaches “beyond the principal evil [that] legislators may have intended or expected to address,” but courts remain obligated to give Congress’s language its plain meaning) (citation and quotation marks omitted).  We cannot ignore Congress’s plain and unambiguous language just because a statute might reach further than some in Congress expected.  See id. (“[I]t is ultimately the provisions of [Congress’s] legislative commands rather than the principal concerns of our legislators by which we are governed.”) (emphasis added) (citation and quotation marks omitted).

Section 3553(f)(1)’s plain and unambiguous language, the Senate’s own legislative drafting manual, § 3553(f)(1)’s  structure as a conjunctive negative proof, and the canon of consistent usage result in only one plausible reading of § 3553(f)(1)’s “and” here: “And” is conjunctive.  If Congress meant § 3553(f)(1)’s “and” to mean “or,” it has the authority to amend the statute accordingly.  We do not.

Members of Congress submit amicus brief urging Ninth Circuit to rule FIRST STEP Act provisions lowering mandatory minimums apply at a resentencing

In this post way back in 2018 just a few days after the FIRST STEP Act became law, I took note of the notable provisions in the Act which expressly addressed just which types of offenders should get the benefit of the Act's new statutory sentencing provisions if their cases were already in the criminal justice pipeline.  In that post, I complimented Congress for addressing these issues, but I also noted that some matters left unclear such as whether "a defendant already sentenced earlier in 2018 [who has] his sentence reversed on some other ground and now he faces resentencing [could] get the benefit of any new provisions of the FIRST STEP Act upon resentencing."

Via this new press release, I now see that this resentencing question is before the Ninth Circuit and that a notable group of Senators are seeking to ensure the defendant gets the benefit of the FIRST STEP Act at his resentencing.  Here is the text of the press release:

U.S. Senators Dick Durbin (D-IL), Chuck Grassley (R-IA), and Cory Booker (D-NJ), lead authors and sponsors of the First Step Act — landmark criminal justice reform legislation — today submitted a bipartisan Amicus Brief to the Ninth Circuit Court of Appeals in United States of America v Alan L. Mapuatuli, a case related to the reduction of the second strike and third strike drug mandatory minimums.

The bipartisan Brief argues that Congress intended the First Step Act (FSA) to apply at post-FSA sentencing hearings, including when a defendant is before a court for sentencing after his or her initial sentence was vacated on appeal.  Congress intended to cover these cases by stating that the FSA applies “if a sentence for the offense has not been imposed” as of the FSA’s date of enactment.  However, the Justice Department is litigating the contrary position in United States of America v Alan L. Mapuatuli.

The Members wrote: “… the interpretation advanced by the Executive Branch and adopted by the district court in this case is contrary to Congress’s language and intent.  Reduced to its simplest form, that interpretation assumes that Congress intended to give legal effect to sentences that otherwise are void.  That assumption finds no support in the statutory text, contradicts the fundamental considerations that motivated Congress to enact the First Step Act, and produces inequitable outcomes that undermine the fairness and legitimacy of our criminal justice system.  That unquestionably is not what Congress intended.  For these reasons, amici respectfully submit that the district court’s judgment should be vacated and the case remanded for resentencing in conformity with the First Step Act.”

The full 20-page amicus brief in this matter is available at this link, and I applaud the Senators and their lawyers for urging the Ninth Circuit to ensure that the FIRST STEP Act is given the broad reach that it seems Congress intended and that its text reasonably supports.

Judge Jack Weinstein provides thorough explanation for FIRST STEP Act crack retroactivity sentence reduction

A few weeks ago, as noted here, the Justice Department issues a press release discussing the implementation of the FIRST STEP Act in which it reported that the "Act’s retroactive application of the Fair Sentencing Act of 2010 (reducing the disparity between crack cocaine and powder cocaine threshold amounts triggering mandatory minimum sentences) has resulted in 826 sentence reductions and 643 early releases."  These numbers are encouraging, though the US Sentencing Commission is this impact analysis reported that there were "2,660 eligible offenders ... in BOP custody as of May 26, 2018" who should benefit from Section 404 of the FIRST STEP Act making the Fair Sentencing Act of 2010 retroactive.  So we may be only a third of the way toward fully implementing just this one section of the new law.

Notably, a judicial legend has now added to the number of federal offenders benefiting directly from the FIRST STEP Act, as earlier this week Judge Jack Weinstein issued this extended opinion explaining the legal basis and justifications for reducing by eight months a sentence being served for a crack offense imposed back in 2009.  I recommend the 15-page opinion in full because it is a clear and effective explanation of the import and impact of the FIRST STEP Act, and here is an excerpt from the start of the opinion:

Defendant Cheyenne Simons was sentenced over a decade ago to a twelve-year term of imprisonment for his role in a criminal conspiracy to distribute crack cocaine.  He now moves to have his sentence reduced pursuant to Section 404 of the First Step Act.  The Act permits courts to retroactively lower the sentence of a defendant convicted of certain Controlled Substances Act violations involving crack cocaine.

The United States concedes that Simons is eligible for resentencing but argues that the court should decline to revisit its original sentence.  “Nothing in the First Step Act,” it contends, “changes the court’s original assessment of the Section 3553(a) factors or suggests that a sentence should be arbitrarily reduced.” Gov’t Letter 5, ECF No. 754, Mar. 27, 2019.

The government is mistaken.  We now have two well-considered statements of federal policy by Congress since the defendant was originally sentenced — the First Step Act and the Fair Sentencing Act of 2010, Pub. L. 111-220, 124 Stat. 2372 (2010) (“the Fair Sentencing Act”).  Both favor sending fewer people to prison, imposing shorter sentences for drug crimes, and reducing the sentencing disparity between crack and powder cocaine offenses.  The court must consider this new governmental policy when deciding whether a reduction of defendant’s sentence is warranted.  See Sent. Hr’g Tr., Apr. 22, 2019, passim.

An extra year, day, or moment of freedom from prison, when warranted, is worth pursuing by a prisoner, and, if justified by the law, should be granted by the court.

Defendant’s motion is granted.  His sentence is reduced to time served.  An amended judgment and conviction shall be filed forthwith.

After serving more than 136 months of his 144-month original sentence, Simons is now eligible for immediate release.  While this decision does not substantially shorten his sentence, justice favors freedom over unnecessary incarceration.  Every day of imprisonment that can be appropriately shortened in a case like this should be.  See Shaila Dewan & Alan Binder, Just How Much of an Overhaul Is This Overhaul of the Nation’s Criminal Justice System?  N.Y.Times, Nov. 16, 2018 (“One day makes a difference because you don’t know what that one day can bring about in a person’s life,” was declared by a former inmate properly released early from federal custody after serving more than 21 years for her involvement in a crack cocaine ring).

"Recidivism Among Federal Offenders Receiving Retroactive Sentence Reductions: The 2011 Fair Sentencing Act Guideline Amendment"

The title of this post is the title of this notable and timely new report from the US Sentencing Commission. Here is a summary of its coverage and findings from this USSC webpage:

The publication Recidivism Among Federal Offenders Receiving Retroactive Sentence Reductions: The 2011 Fair Sentencing Act Guideline Amendment analyzes recidivism among crack cocaine offenders who were released immediately before and after implementation of the 2011 Fair Sentencing Act Guideline Amendment, and followed in the community for three years.

In order to study the impact of retroactive sentence reductions on recidivism rates, staff analyzed the recidivism rate for a group of crack cocaine offenders whose sentences were reduced pursuant to retroactive application of the 2011 Fair Sentencing Act Guideline Amendment. Staff then compared that rate to the recidivism rate for a comparison group of offenders who would have been eligible to seek a reduced sentence under the 2011 amendment, but were released before the effective date of that amendment after serving their full prison terms less good time and other earned credits.

Key Findings

The Commission's report aims to answer the research question, "Did the reduced sentences for the FSA Retroactivity Group result in increased recidivism?".

Key findings of the Commission’s study are as follows:

• The recidivism rates were virtually identical for offenders who were released early through retroactive application of the FSA Guideline Amendment and offenders who had served their full sentences before the FSA guideline reduction retroactively took effect. Over a three-year period following their release, the “FSA Retroactivity Group” and the “Comparison Group” each had a recidivism rate of 37.9 percent.

• Among offenders who did recidivate, for both groups the category “court or supervision violation” was most often the most serious recidivist event reported. Approximately one-third of the offenders who recidivated in both groups (32.9% for the FSA Retroactivity Group and 30.8% for the Comparison Group) had court or supervision violation as their most serious recidivist event.

• Among offenders who did recidivate, the time to recidivism for both groups were nearly identical. The median time to recidivism for offenders who recidivated in both groups was approximately 14½ months.

Fascination and frustration with "finality fixation" in en banc Sixth Circuit Blewett arguments

As mentioned in this recent post, I have so far resisted writing up my thoughts concerning last week's remarkable Sixth Circuit en banc Blewett oral argument on crack sentencing modifications.  I have done so in part because I wanted to be able to devote a block of time to the task, and in part because via the Sixth Circuit website folks can (and should) listen for themselves to the audio recording of the hour-long argument via this link.

Now that I have had more time to think about last week's oral argument and the broader issues in Blewett, I continue to find myself (as the title of this post suggests) fascinated and frustrated by what I will call a "finality fixation" in the context of sentencing issues.   A variation of this fixation made me a bit batty in the FSA pipeline debate that culminated in the Supreme Court's Dorsey ruling, and it also comes to play in the on-going dispute over whether the Supreme Court's Miller ruling will apply retroactively to final juve murder sentences.  I am likely fixated on this notion of a "finality fixation"  because I am currently working on a symposium article on this topic.  Still, the tenor of much of the Blewett oral argument, and other arenas where concerns about sentencing finality seem often now to trump interests in sentencing fitness and fairness, have a way of driving me to fits of fascination and frustration.

At the risk of repeating parts of the brief on Eighth Amendment issues which I helped file on behalf of the NACDL (and which is discussed and linked via this prior post), let me try here to explain what still makes me a bit nutty about cases like Blewett.  

Point 1:  Each and every federal criminal justice policy-maker in the three branches of the federal government — Congress, the Prez and his Justice Department, and the US Sentencing Commission — have all expressly and formally declared that all 100-1 ratio pre-FSA crack prison sentences were unfair, excessive and ineffectual, AND Congress enacted the "Fair Sentencing Act" to lower all federal crack sentences by raising the trigger quantity for mandatory minimum prison terms and by mandated that the US Sentencing Commission significantly lower all crack guideline prison ranges.

Point 2: When it reformed modern sentencing rules and eliminated parole release, Congress created a express statutory sentencing modification mechanism — in 18 U.S.C. § 3582(c)(2) — through which offenders still in prison who were "sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission [can move for a court to] reduce the term of imprisonment," AND thousands of the most serious crack offenders sentenced before the FSA have had their prison sentences reduced through this stautory mechanism.  (This latest USSC report indicates not only that 7,300+ pre-FSA crack offenders have had their prison terms reduced by an average of 29 months, but also that thousands of these crack offenders got reduced sentences despite having extensives criminal histories and/or having used a weapon in their offense and/or having a leadership role in the offense.  See Table 6 of USSC report.)

Point 3: Congress, the Prez and his Justice Department, and the US Sentencing Commission have all ordered, authorized and/or not objected to thousands of more serious pre-FSA crack offenders being eligble for (and regularly receiving) reduced prison terms via the statutory sentencing modification mechanism of 3582(c)(2).  The Blewetts and other less serious pre-FSA crack offenders whose sentences were impacted by the 100-1 mandatory minimum terms and who are still in federal prison serving (now-repealed) pre-FSA crack sentences that every federal criminal justice policy-maker in each branch of the federal government have expressly and formally declared unfair, excessive and ineffectual are now simply arguing that they, too, should be eligible to use the same statutory sentence modification mechanism that thousands of the most serious crack offenders have already benefitted from. 

Point 4: Nobody has, to my knowledge, even tried to offer a substantive defense or penological justification as to why the Blewetts and only those less serious pre-FSA crack offenders should not even be eligible for the statutory sentencing modification mechanism of 3582(c)(2) and thus must serve the full duration of (now-repealed) pre-FSA crack sentences.  Indeed, it seem to me at least that it is not just unjust, but irrational and cruel and unusual, to require only the least serious pre-FSA crack offenders to serve out prison terms that every federal criminal justice policy-maker in each branch of the federal government have expressly and formally declared unfair, excessive and ineffectual, especially given that thousands of the most serious pre-FSA crack offenders can and have already benefitted from the statutory sentencing modification mechanism of 3582(c)(2).  (Critically, Congress has never stated nor even suggested, either expressly or implicitly, that it wanted the Blewetts and only those less serious pre-FSA crack offenders to be catergorically ineligible for sentence modification.  Indeed, I think the fair implication of the express provisions of the FSA is that all pre-FSA crack offenders should at least have a chance for sentence modification pursuant to 3582(c)(2).)

In light of all these points, in my view the only plausible rationale for denying the Blewetts and other less serious pre-FSA crack offenders a chance for sentence modification is the oft-stated, but rarely thought-through, idea of "finality."  And though I think finality is an important policy concern when defendants are attacking long-final convictions, I do not think this concept of finality historically has or now should be given great weight when a defendant is only seeking to modestly modify a sentence.  Further, when a federal defendant is seeking only a modest prison sentence modification under an express statutory provision created by Congress, the comity and separation of powers concerns that might also give finality interests extra heft are not present. 

Thus my contention that only a "finality fixation" fully accounts for why so many judges seem resistant to the various legal arguments that the Blewetts and other less serious crack offenders are making in these FSA cases.  As I see it, given the text and purposes of the FSA and the text and purposes of 3852(c)(2), the eagerness of judges to deny relief to the Blewetts and other less serious crack offenders reflects a fixation on the notion that, even in this remarkable and unique setting, concerns about sentencing finality should still consistently and conclusively trump the need to achieving sentencing fitness and fairness.  And that reality fascinates and frustrates me.

Am I silly, dear readers, to be so fascinated and frustrated by all this?  I am hoping, especially from those eager to see the Blewett panel decision undone (which I now fear a majority of the Sixth Circuit is planning to do), for responses in the comments that might help me better see what my analysis above is missing and/or why I should not be so nutty about these "finality fixation" matters.

Related posts on Blewett:

• On (wrong?) constitutional grounds, split Sixth Circuit panel gives full retroactive effect to new FSA crack sentences
• "Crackheaded Ruling by Sixth Circuit"
• How quickly can and will (hundreds of) imprisoned crack defendants file "Blewett claims"?
• Two weeks later, has there been any significant and noteworthy Blewett blowback?
• As expected, feds ask full Sixth Circuit to review and reverse Blewett crack retroactivity ruling
• Sixth Circuit calls for briefing on Eighth Amendment in Blewett crack sentencing retroactivity case
• My Sixth Circuit amicus brief effort now filed explaining my Eighth Amendment FSA views in Blewett
• Full Sixth Circuit grants en banc review in Blewett
• Audio of Sixth Circuit en banc Blewett oral argument available (and drinking game suggestion)

Latest USSC data on retroactivity of crack guidelines reduced by FSA

I just noticed on the US Sentencing Commission's website this new data report on "Fair Sentencing Act Amendment Retroactivity."  The report is described this way: "This report provides data concerning the retroactive application of the 2011 amendment to the federal sentencing guidelines implementing the Fair Sentencing Act of 2010."

Based on the information reflected in Table 8 of this data report and elsewhere, it appears that nearly 6600 defendants received, on average, a 29-month reduction in their crack sentences thanks to the new FSA crack guidelines being made retroactive.  That adds up to nearly 16,000 cumulative years of federal imprisonment eliminated and an economic saving to federal taxpayers of approximately a half-billion dollars (based on a conservative estimate of a taxpayer cost of roughly $30,000 per prisoner for each year of federal incarceration). 

Notably, according to Table 5 of this data report, more than 85% of those benefiting from reduced crack sentences are black prisons.  The historically racialized reality of federal crack prosecutions is thus again on display as one reviews this data. 

Here is to hoping, especially during the holiday season, that all the persons who benefited from the new reduced FSA crack sentences will turn their lives around.  If these defendants who received reduced sentences find ways to become productive (and tax-paying) citizens, the benefits to society will profoundly transcend the saved incarceration costs.

"Crack cocaine: One woman's tale"

The title of this post is the headline of this first-person account of the impact of the new crack federal sentencing guidelines appearing in the Chicago Tribune (and forwarded to me by a helpful reader). This piece is authored by Stephanie Nodd, who is in prison in the Coleman Federal Correctional Institution in Florida, and here are excerpts:

Looking back, I know I did something wrong, but I am also sure that I did not need 30 years in prison to learn my lesson.  I am due a second chance, and I plan to make the best of it....

In 1988, just after my 20th birthday, I met a man named John who promised me cash if I helped him set up his new business.  His business was selling crack cocaine. I helped him for a little over a month in return for money I used to pay bills and buy groceries.  After about six weeks, I cut off all ties with John and moved myself and my kids to Boston to start a new life.

We were living in Boston when I was indicted on drug charges in Alabama.  I returned to take responsibility for my mistake.  I prayed I would not have to serve any time because of my clean record and limited involvement.  I could not have been more wrong....

I could not give the prosecutors any information because I did not know anyone.... Meanwhile, John cooperated against everyone, including me. I was eventually charged as a manager in the drug conspiracy and found guilty at trial.  Even though I did not have a criminal record, I was sentenced to 30 years in federal prison.  The year was 1990. George H.W. Bush was president, and no one knew what email was.  I was 23 years old.

I have spent the last two decades behind bars.  Whenever new corrections officers ask me what my sentence is and I tell them 30 years, their first question is always the same: "Who did you kill?"

Earlier this year, the U.S. Sentencing Commission voted to reduce penalties for crack cocaine crimes.  On June 30, the commission voted to apply the new reforms to people serving the long prison sentences required by the old law.  Some people, including some members of Congress, are against retroactivity because they think it will give dangerous criminals a break.  As someone who has already served 21 years in federal prison for a first-time, nonviolent crack offense, I think it's important for the public to get a different perspective.

The truth is that many people are serving sentences that are far longer than I believe is necessary.  I have met women whose husbands, after getting caught selling drugs, turned around and cooperated against their wives in exchange for shorter sentences.  Some of these women had little or no involvement in the drug offense for which they are serving decades in federal prison....

I have tried to stay positive and make the best of a bad situation.  I received my GED, completed college courses and earned other licenses that will allow me to compete for a job when I am finally released.  Thanks to the U.S. Sentencing Commission's vote, I could be released by the end of this year.  I can finally see the light at the end of the tunnel. I know I am not the same woman who kissed her babies goodbye 21 years ago, but I can't wait to be reunited with my children and to meet my new grandchildren.

US Sentencing Commission makes new crack guidelines retroactive

As detailed in this official press release, as expected the USSC "voted unanimously ... to give retroactive effect to its proposed permanent amendment to the federal sentencing guidelines that implements the Fair Sentencing Act of 2010." Here is more from the Commmission's press release:

Retroactivity of the amendment will become effective on November 1, 2011― the same day that the proposed permanent amendment would take effect ― unless Congress acts to disapprove the amendment. ...

Not every federal crack cocaine offender in federal prison will be eligible for a lower sentence as a result of this decision. The Commission estimates, based on Fiscal Year 2010 sentencing data, that approximately 12,000 offenders may be eligible to seek a sentence reduction.  The average sentence reduction for eligible offenders will be approximately 37 months, and the overall impact on the eligible offender population will occur incrementally over decades.  The average sentence for these offenders, even after reduction, will remain about 10 years.  The Bureau of Prisons estimates that retroactivity of the Fair Sentencing Act of 2010 amendment could result in a savings of over $200 million within the first five years after retroactivity takes effect.

The Commission’s vote to give retroactive application to the proposed amendments to the federal sentencing guidelines does not give retroactive effect to the Fair Sentencing Act of 2010. Only Congress can make a statute retroactive.  Many crack offenders will still be required under federal law to serve mandatory five- or 10-year sentences because of the amount of crack cocaine involved in their offenses.....

A federal sentencing judge will make the final determination of whether an offender is eligible for a lower sentence and by how much that sentence should be lowered in accordance with instruction given by the Commission.  The ultimate determination will be made only after consideration of many factors, including the Commission’s instruction to consider whether reducing an offender’s sentence would pose a risk to public safety.

This New York Times report on the decision provides some notable quotes in reaction:

Calling the difference between crack and powder “cultural, not chemical,” Jim E. Lavine, the president of the National Association of Criminal Defense Lawyers, said that the old sentencing policy placed the heaviest penalties on minorities and the poor.  “A civilized society doesn’t mete out punishment based on a defendant’s culture or skin color,” Mr. Lavine said....

A number of lawmakers had opposed retroactive sentence reductions, arguing that they would endanger communities. Representative Dan Lungren, Republican of California, said in an interview that he was “very disappointed” in the commission. Mr. Lungren said he supported the 2010 law in part because it was not retroactive.  “That was not our intent,” he said.

Some recent related posts:

• USSC request comments on possible retroactivity of new crack and drug guidelines
• Revised data from USSC concerning potential impact of FSA guideline retroactivity
• Lots of news as AG Holder say to USSC lower FSA crack guidelines should be retroactive
• Lamar Smith's (deeply misguided) statement about crack retroactivity debate
• Informed criticisms of Justice Department's proposed limitation on crack retroactivity
• US Sentencing Commission slated this week to vote on new FSA crack guideline retroactivity
• US Sentencing Commission voting today on making new FSA crack guidelines retroactive

US Sentencing Commission voting today on making new FSA crack guidelines retroactive

As previously noted here and as indicated in this official public notice, this afternoon at a public meeting, the US Sentencing Commission will vote on whether and how to make the new reduced crack offense federal sentencing guidelines applicable retroactively to previously sentencing defendants.  The new guidelines reflect the 18-1 quantity ratio between crack and powder cocaine quantities that became the new federal sentencing standard after the Congress passed the Fair Sentencing Act of 2010.

As I have detailed in prior posts (some of which are linked below), a decision to make the crack guidelines retroactive would potentially impact the sentences of many thousands of federal prisoners, and this fact has made this issue a subject of considerable controversy.  Still, the smart money is on the Sentencing Commission voting to make the new crack guidelines retroactive with a few (but not too many) limitations on which previously sentencing defendants can get the benefit of the new lower guidelines.

A few related posts on this particular retroactivity decision before the USSC are linked below, and readers interested in a broader understanding of the FSA should check out this February 2011 issue of the Federal Sentencing Reporter on the FSA and those interested in a broader discussion of the last round of crack retroactivity should check out this April 2008 FSR issue on crack retroactivity:

• USSC request comments on possible retroactivity of new crack and drug guidelines
• Revised data from USSC concerning potential impact of FSA guideline retroactivity
• Lots of news as AG Holder say to USSC lower FSA crack guidelines should be retroactive
• Lamar Smith's (deeply misguided) statement about crack retroactivity debate
• Informed criticisms of Justice Department's proposed limitation on crack retroactivity
• US Sentencing Commission slated this week to vote on new FSA crack guideline retroactivity

I will be on the road and likely off-line until very late tonight, but the folks at FAMM are all over this issue, as evidenced by this new item on FAMM's homepage:

Today! Historic Sentencing Commission vote on retroactivity

At 1 p.m., the U.S. Sentencing Commission will vote on retroactivity of the crack guidelines.  FAMM's Mary Price told the Associated Press, "there is a tremendous amount of hope out there ... there is a potential that people could see their sentences reduced, some quite dramatically."  Learn more -- read FAMM's latest factsheet, "Myths and Facts on Crack Guideline Retroactivity" and other resources.  FAMM will also report live from the vote on Twitter.

US Sentencing Commission slated this week to vote on new FSA crack guideline retroactivity

As indicated in this official public notice, this Thursday, June 30, a public meeting of the US Sentencing Commission is scheduled at which the USSC is expected to vote on whether and how to make the new reduced crack offense sentencing guidelines applicable retroactively to previously sentencing defendants.  The new guidelines reflect the 18-1 quantity ratio between crack and powder cocaine quantities that became the new federal sentencing standard after the Congress passed the Fair Sentencing Act of 2010.

As I have detailed in prior posts (some of which are linked below), a decision to make the crack guidelines retroactive would potentially impact the sentences of many thousands of federal prisoners, and this fact has made this issue a subject of considerable controversy.  The Sentencing Commission has posted here on its website a lot of interesting links to the input the USSC has received about this consequential issue.  (Enterprising researchers and students can learn a lot about the politics and practicalities of federal drug sentecing by reviewing these materials.)

Based on the (incomplete and non-insider) buzz that I have heard surrounding this issue, I predict that the Sentencing Commission will vote to make the new crack guidelines retroactive with a few (but not too many) limitations on which previously sentencing defendants can get the benefit of the new lower guidelines.

A few related posts on this particular retroactivity decision before the USSC are linked below, and readers interested in a broader understanding of the FSA should check out this February 2011 issue of the Federal Sentencing Reporteron the FSA and those interested in a broader discussion of the last round of crack retroactivity should check out this April 2008 FSR issue on crack retroactivity:

• USSC request comments on possible retroactivity of new crack and drug guidelines
• Revised data from USSC concerning potential impact of FSA guideline retroactivity
• Lots of news as AG Holder say to USSC lower FSA crack guidelines should be retroactive
• Lamar Smith's (deeply misguided) statement about crack retroactivity debate
• Informed criticisms of Justice Department's proposed limitation on crack retroactivity

Another take on the consequences of SCOTUS crack retroactivity work in Freeman

A thoughtful reader sent me and allowed me to post here his take on today's Freeman ruling by the Supreme Court (basics here, opinion here), which seeks to counter my first-cut, from-the-gut reaction that that because of the 4-1-4 split of the Justices "few other defendants will benefit from [Freeman's] win." Here is that take:

In Freeman v. U.S., (plurality opinion) (available here), the Supreme Court reversed the Sixth Circuit’s ruling that a defendant who entered into a Rule 11(c)(1)(C) plea agreement was ineligible for a reduction of sentence under 18 U.S.C. § 3582(c)(2) based on a retroactive amendment to the Sentencing Guidelines that lowered the Guideline range.

The plurality reasoned that because, even in cases where the sentence imposed varies from the Guideline range, a sentencing judge is required to consider the Guidelines when deciding whether to accept and impose the specific sentence agreed upon by the parties in an 11(c)(1)(C) plea, an 11(c)(1)(C) sentence is "based on" the Guidelines.  Because § 3582(c)(2) applies in cases when a sentence was "based on" a subsequently amended Guideline range, an 11(c)(1)(C) defendant is therefore eligible for § 3582(c)(2) relief.

[Note: Justice Sotomayor provided the decisive fifth vote in a separate concurrence, based on different grounds from the plurality opinion: Justice Sotomayor concluded that Freeman was entitled to § 3582(c)(2) relief because his plea agreement expressly provided that his sentence was based on the Guidelines.  Justice Sotomayor stated that in the future, "[n]othing prevents the Government from negotiating with a defendant to secure a waiver of his statutory right to seek sentence reduction under § 3582(c)(2), just as it often does with respect to a defendant’s rights to appeal and collaterally attack the conviction and sentence."  In the future, citing Marks v. U.S., 430 U.S. 188, 193 (1977), the government may invoke Justice Sotomayor’s concurrence (and her view that § 3582(c)(2) rights are waivable) as expressing Freeman’s holding, on the ground that her concurrence expressed the "narrowest grounds" for the decision.

The Supreme Court, however, has questioned Marks.  See, e.g. Nichols v. U.S., 511 U.S. 738, 745 (1994) (declining to follow Marks’ approach).  The "narrowest ground" approach is arguably inapposite in cases like Freeman, where, as Justice Sotomayor’s concurrence states, the conclusions "differ as to the reason why," that is, the rationales for the plurality and the concurrence are not "nested" within one another like "Russian dolls."  See Note, Plurality Decisions in the Supreme Court of the United States, A Reexamination of the Marks Doctrine After Rapanos v. United States, 41 Suffolk U. L. Rev. 97, 113 (2007) (citing King v. Palmer, 950 F.2d 771, 781-82 (D.C. Cir. 1991) (en banc)).  Arguably, in cases like Freeman, "lower courts should treat plurality decisions as binding only for the result that a majority of the court would support based on their stated rationales." Id. at 130 (citing Rapanos v. U.S., 547 U.S. 715, 810 (2006) (Stevens, J., dissenting). In Freeman, the majority agreed only to reject the dissenters’ view that 11(c)(1)(C) defendants are categorically ineligible for § 3582(c)(2) relief.  Whether some of these defendants might be ineligible on the separate grounds stated by Justice Sotomayor (because there is no mention of Guidelines in their plea agreement, or because there is an express waiver of § 3582(c)(2) in their plea agreements) remains an open question.]

Defendant barely wins in Freeman, as SCOTUS clarifies/complicates guideline retroactivity rules

The final big federal sentencing case on the Supreme Court docket this term is Freeman v. US concerning the eligibility of some defendants to get the retroactive benefit of the Sentencing Commission reducing guidelines ranges.  Today Freeman prevailed, though what seems like a 4-1-4 opinion in his favor likely means few other defendants will benefit from his victory.  Here are the basics coming from the start of the first opinion in Freeman:

JUSTICE KENNEDY announced the judgment of the Court and delivered an opinion, in which JUSTICE GINSBURG, JUSTICE BREYER, and JUSTICE KAGAN join.

The Sentencing Reform Act of 1984, 18 U. S. C. §3551 et seq., calls for the creation of Sentencing Guidelines to inform judicial discretion in order to reduce unwarranted disparities in federal sentencing. The Act allows retro-active amendments to the Guidelines for cases where the Guidelines become a cause of inequality, not a bulwark against it. When a retroactive Guideline amendment is adopted, §3582(c)(2) permits defendants sentenced based on a sentencing range that has been modified to move for a reduced sentence.

The question here is whether defendants who enter into plea agreements that recommend a particular sentence as a condition of the guilty plea may be eligible for relief under §3582(c)(2). See Fed. R. Crim. Proc. 11(c)(1)(C) (authorizing such plea agreements). The Court of Appeals for the Sixth Circuit held that, barring a miscarriage of justice or mutual mistake, defendants who enter into 11(c)(1)(C) agreements cannot benefit from retroactive Guideline amendments.

Five Members of the Court agree that this judgment must be reversed. The Justices who join this plurality opinion conclude that the categorical bar enacted by the Court of Appeals finds no support in §3582(c)(2), Rule11(c)(1)(C), or the relevant Guidelines policy statements. In every case the judge must exercise discretion to impose an appropriate sentence. This discretion, in turn, is framed by the Guidelines. And the Guidelines must be consulted, in the regular course, whether the case is one in which the conviction was after a trial or after a plea,including a plea pursuant to an agreement that recommends a particular sentence. The district judge’s decision to impose a sentence may therefore be based on the Guide-lines even if the defendant agrees to plead guilty under Rule 11(c)(1)(C). Where the decision to impose a sentence is based on a range later subject to retroactive amendment, §3582(c)(2) permits a sentence reduction.

Section 3582(c)(2) empowers district judges to correct sentences that depend on frameworks that later prove un-justified. There is no reason to deny §3582(c)(2) relief to defendants who linger in prison pursuant to sentences that would not have been imposed but for a since-rejected, excessive range.

JUSTICE SOTOMAYOR would reverse the judgment on a different ground set out in the opinion concurring in the judgment. That opinion, like the dissent, would hold that sentences following 11(c)(1)(C) agreement are based on the agreement rather than the Guidelines, and therefore that § 3582(c)(2) relief is not available in the typical case.  But unlike the dissent she would permit the petitioner here to seek a sentence reduction because his plea agreement in express terms ties the recommended sentence to the Guidelines sentencing range.

Lots of news as AG Holder say to USSC lower FSA crack guidelines should be retroactive

June kicks off with big US Sentencing Commission doings:  the agency today has been conducting a full-day hearing to consider whether and how its new reduced crack sentencing guidelines prompted by the Fair Sentencing Act should be made retroactive.  A few weeks ago, the USSC released this impact analysis of what FSA crack guidelines retroactivity might be, and late yesterday the USSC posted this recidivism analysis reporting on its study of the reoffense rates for offenders who got released a bit earlier from prison due to the last round of reduced crack guidelines that were made retroactive.

Meanwhile, as reported in this Bloomberg piece, Attorney General Eric Holder personally testified before the USSC this morning and he indicated support for (partial) retroactivity of the new reduced crack guidelines:

Holder described the Obama administration’s position today at a hearing before the U.S. Sentencing Commission in Washington, which establishes sentencing policies and is considering whether the shorter sentences should be retroactive.  Applying the measure to those previously sentenced could affect about 12,000 inmates....

“We believe that the imprisonment terms of those sentenced pursuant to the old statutory disparity -- who are not considered dangerous drug offenders -- should be alleviated to the extent possible to reflect the new law,” Holder said.  Retroactive reductions in sentences shouldn’t apply to those who possessed or used weapons in committing their crimes or offenders with “significant” criminal histories, Holder said.

The full text of AG Holder's written testimony and of many others testifying today before the USSC are linked from this page.  Here is a key passage from AG Holder's testimony:

The Commission’s Sentencing Guidelines already make clear that retroactivity of the guideline amendment is inappropriate when its application poses a significant risk to public safety -- and the Administration agrees.  In fact, we believe certain dangerous offenders -- including those who have possessed or used weapons in committing their crimes and those who have significant criminal histories -- should be categorically prohibited from receiving the benefits of retroactivity, a step beyond current Commission policy.

The Administration’s suggested approach to retroactivity of the amendment recognizes Congressional intent in the Fair Sentencing Act to differentiate dangerous and violent drug offenders and ensure that their sentences are no less than those originally set.  However, we believe that the imprisonment terms of those sentenced pursuant to the old statutory disparity -- who are not considered dangerous drug offenders -- should be alleviated to the extent possible to reflect the new law.

This effort by Holder and DOJ to differentiate dangerous and violent drug offenders from non-violent drug offenders seems sound to me (though the devil can and will often be in the details).  I will not be at all surprised if the USSC adopts some version of what the Justice Department is advocating here.

A few related posts on this particular retroactivity decision before the USSC are linked below, and readers interested in a broader understanding of the FSA should check out this February 2011 issue of the Federal Sentencing Reporteron the FSA and those interested in a broader discussion of the last round of crack retroactivity should check out this April 2008 FSR issue on crack retroactivity:

• USSC request comments on possible retroactivity of new crack and drug guidelines
• Revised data from USSC concerning potential impact of FSA guideline retroactivity

USSC request comments on possible retroactivity of new crack and drug guidelines

As detailed in this document described as a "Reader-Friendly Version of the Commission's Request for Comment on Retroactivity," the US Sentencing Commission is now requesting public comment by June 2, 2011, concerning "whether Amendment 2 [of its most recent set of Guideline amendments sent to Congress], pertaining to drug offenses, should be included as an amendment that may be applied retroactively to previously sentenced defendants."  Here is more background and details from this document:

On April 28, 2011, the Commission submitted to the Congress amendments to the sentencing guidelines and official commentary, which become effective on November 1, 2011, unless Congress acts to the contrary.  Such amendments and the reasons for amendment subsequently were published in the Federal Register.  See 76 FR 24960 (May 3, 2011).

Amendment 2, pertaining to drug offenses, has the effect of lowering guideline ranges.... The Commission seeks comment regarding whether, pursuant to 18 U.S.C. § 3582(c)(2) and 28 U.S.C. § 994(u), this amendment, or any part thereof, should be included in subsection (c) of §1B1.10 (Reduction in Term of Imprisonment as a Result of Amended Guideline Range (Policy Statement)) as an amendment that may be applied retroactively to previously sentenced defendants.

The Commission also requests comment regarding whether, if it amends §1B1.10(c) to include this amendment, it also should amend §1B1.10 to provide guidance to the courts on the procedure to be used when applying an amendment retroactively under 18 U.S.C. § 3582(c)(2)....

Amendment 2, pertaining to drug offenses, contains three parts.  The Commission seeks comment on whether it should list the entire amendment, or one or more parts of the amendment, in subsection (c) of §1B1.10 as an amendment that may be applied retroactively to previously sentenced defendants.

Part A changes the Drug Quantity Table in §2D1.1 for offenses involving crack cocaine. This has the effect of lowering guideline ranges for certain defendants for offenses involving crack cocaine.

Part B contains both mitigating and aggravating provisions for offenses involving drugs, regardless of drug type. The mitigating provisions have the effect of lowering guideline ranges for certain defendants in drug cases, and the aggravating provisions have the effect of raising guideline ranges for certain defendants in drug cases.

Part C deletes the cross reference in §2D2.1(b)(1) under which an offender who possessed more than 5 grams of crack cocaine was sentenced under §2D1.1. This has the effect of lowering guideline ranges for certain defendants for offenses involving simple possession of crack cocaine.

For each of these three parts, the Commission requests comment on whether that part should be listed in subsection (c) of §1B1.10 as an amendment that may be applied retroactively....

If the Commission does list the entire amendment, or one or more parts of the amendment, in subsection (c) of §1B1.10 as an amendment that may be applied retroactively to previously sentenced defendants, should the Commission provide further guidance or limitations regarding the circumstances in which and the amount by which sentences may be reduced? 

US Sentencing Commission makes guideline crack reductions permanent

As detailed in this official press release from the US Sentencing Commission, the USSC today promulgated a permanent amendment implementing the provisions of the Fair Sentencing Act of 2010."  Here is more:

Commission chair, Judge Patti B. Saris (District of Massachusetts) said, “The Fair Sentencing Act was among the most significant pieces of criminal justice legislation passed by Congress in the last three decades. For over 15 years, the Commission has advocated for changes to the statutory penalty structure for crack cocaine offenses. The Commission applauds Congress and the Administration for addressing the sentencing disparity between crack cocaine and powder cocaine offenders.”

No crack cocaine offender will see his or her sentence increase based solely on the quantity thresholds the Commission set today in the federal sentencing guidelines. As a result of today’s action, the federal sentencing guidelines will focus more on offender culpability by placing greater emphasis on factors other than drug quantity.

Based on an analysis of the most recent sentencing data, the Commission estimates that crack cocaine offenders sentenced after November 1, 2011, will receive sentences that are approximately 25 percent lower on average as a result of the changes made to the federal sentencing guidelines today. Moreover, the Commission estimates that these changes may reduce the cost of incarceration for crack cocaine offenders in the federal prison system in the future.

Today’s vote by the Commission will set the triggering quantities of crack cocaine for the five and 10-year mandatory minimum penalties (28 grams and 280 grams, respectively) at base offense levels 26 and 32, which correspond to a sentencing range of 63-78 months and 121-151 months, respectively, for a defendant with little or no criminal history. This action maintains proportionality with other drug types insofar as the quantity of illegal drugs, including crack cocaine, required to trigger the five- and ten-year statutory mandatory minimum penalties is subject to the same base offense level no matter the drug type.

Pursuant to statute, the Commission must consider whether its amendment to the federal sentencing guidelines implementing the Fair Sentencing Act should apply retroactively. The Commission plans to hold a hearing on June 1, 2011, to consider retroactivity, and voted today to seek public comment on the issue.

US Sentencing Commission forecasts impact of making new crack guidelines retroactive

I just notice this important new document posted on the US Sentencing Commission's website, which is a USSC memorandum titled "Analysis of the Impact of Amendment to the Statutory Penalties for Crack Cocaine Offenses Made by the Fair Sentencing Act of 2010 and Corresponding Proposed Permanent Guideline Amendment if the Guideline Amendment Were Applied Retroactively."  The details of this 60+ page memo are as intricate as the title, though the basic story concerns how many offenders sentenced under the old 100-1 crack guidelines (and the amended version applicable from 2007 to 2010) would benefit from retroactive application of the new 18-1 crack guidelines that the passage of the Fair Sentencing Act produced.

The detailed analysis in this memo defies simplistic summary, especially because lots of assumptions and alternative ideas are built into the crack re-sentencing number-crunching.  But these two passages provide the highlights of one key part of the analysis: 

This section of the memorandum provides an analysis of the estimated impact of New Crack Amendment BOL 26, should it be made retroactive, on offenders incarcerated as of October 1, 2010, in the federal prison system.  This analysis was prepared by the Commission's Office of Research and Data (ORD).  ORD estimates that 12,835 offenders sentenced between October 1, 1991, and September 30, 2009 (fiscal years 1992 through 2009), would be eligible to receive a reduced sentence if New Crack Amendment BOL 26 were made retroactive.  If these offenders were to receive reduced sentences pursuant to New Crack Amendment BOL 26, the dates on which they would be released would span more than thirty years....

Based on [additional] assumptions, the average sentence reduction for all impacted offenders with sufficient information to perform this analysis would be 22.7 percent (or 37 months, from 163 months to 126 months).  Table 6 shows that 7,612 offenders (76.9%) would receive a sentence reduction of 48 months or less.  Conversely, 286 offenders (2.9%) would receive a sentence reduction of more than 10 years.

It is interesting to compare this forecast of the impact making the new FSA-inspired crack guidelines retroactive with the USSC's detailed data concerning the actual impact of the 2007 crack guideline reduction being applied retroactively (with the USSC's latest data run here). The 2007 reduction benefited over 15,000 crack prisoners, though the amount of sentence reduction was only around 2 years of imprisonment. Thus, its seems making the FSA-inspired crack guidelines retroactive will actually effect a slightly smaller number of defendants, but could have an even greater impact on those defendants' sentencing terms.

Student note about retroactive application of 2007 guideline crack amendments

I just saw via SSRN this notable new student note forthcoming in the Michigan Law Review, which is titled "Falling Through the Crack: How Courts Have Struggled to Apply the Crack Amendment to 'Nominal Career' and 'Plea Bargain' Defendants."  Here is the abstract:

In 2007, after a decade of debate, the Federal Sentencing Commission instituted an amendment that decreased the sentences of some defendants who had been convicted of offenses involving crack cocaine.  A few months later, the Sentencing Commission passed another amendment that rendered this decrease in sentence retroactive.  Nearly three years after the passage and retroactive application of the Crack Amendment, however, two separate circuit splits have emerged as courts have struggled to uniformly interpret and apply the Sentencing Commission’s directives.  The first circuit split emerged in regards to the eligibility of a subset of "career offenders" to the benefits of the retroactive application of the Crack Amendment.  The second circuit split emerged in regards to whether a subset of defendants who plead guilty to crack offenses pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C) prior to the passage of the Crack Amendment are eligible to receive the benefits of its retroactive application.

This Note first argues that the language of the applicable statutes and policy statements and specific actions taken by the Federal Sentencing Commission indicate that the subset of "career offenders" in the first circuit split are not eligible for a subsequent reduction in sentence pursuant to the Crack Amendment.  This Note then argues, however, that the lack of explicit directives from the Sentencing Commission with regards to the “plea bargain” defendants in the second circuit split indicates that these defendants are eligible to receive the benefits of the retroactive application of the Crack Amendment.  Because the Sentencing Commission instituted and rendered retroactive the Crack Amendment to decrease the disparity in sentence between defendants convicted of crack and powder cocaine offenses, it would be contrary to the motive of the Amendment to exclude these defendants from its benefits.

US Sentencing Commission action to implement FSA and new crack guidelines

As detailed in this public notice, the United States Sentencing Commission has a public meeting scheduled for this afternoon in DC, and the agenda includes "Possible Vote to Promulgate Emergency, Temporary Amendment (implementing the statutory changes regarding crack cocaine offenses and directives regarding drug trafficking offenses generally set forth in the Fair Sentencing Act of 2010."   These proposed amendments were previously set out by the USSC here.

Relatedly, the USSC has now posted here the materials "received by the Commission in response to its request for public comment (implementing the statutory changes regarding crack cocaine offenses and directives regarding drug trafficking offenses generally set forth in the Fair Sentencing Act of 2010."   Here are links to all this stuff:

U.S. Department of Justice

Rep. John Conyers, Jr., Chair of the House Committee on the Judiciary and Rep. Robert C. "Bobby" Scott, Chair of the House Subcommittee on Crime, Terrorism, and Homeland Security

Senator Richard J. Durbin

Probation Officers Advisory Group

Federal Public and Community Defenders

National Association of Criminal Defense Lawyers

Families Against Mandatory Minimums

American Civil Liberties Union

The Sentencing Project

Citizen Letters

UPDATE:  As detailed in this news release, on late Friday "the United States Sentencing Commission voted to promulgate a temporary, emergency amendment to the federal sentencing guidelines consistent with the statutory changes to crack cocaine and other drug trafficking offenses made by the Fair Sentencing Act of 2010 [which] will take effect on November 1, 2010."

The release explains that the "Commission estimates that the new average sentence for trafficking in crack cocaine will be 101 months, a 13.7 percent decrease in average sentence length. The Commission estimates that more than 1,500 prison beds will be saved after five years and that more than 3,800 beds will be saved after ten years."

Effective review of the five new SCOTUS criminal justice cases

As noted in this prior post, this past week the US Supreme Court accepted five new criminal cases for its upcoming Term.  This article in the Wisconsin Law Journal, headlined "High court accepts five criminal cases," reviews the group.  Here is the article's coverage of the two sentencing cases:

[T]he court will decide whether a federal judge has the authority to reduce a federal criminal sentence after the U.S. Sentencing Commission amended the Sentencing Guidelines for crack cocaine, if the judge had already accepted a plea deal with the defendant, in Freeman v. United States, No. 09-10245.  The U.S. Supreme Court has agreed to answer this question, reviewing a decision from the 6th Circuit which held that case law precluded modification of a sentence imposed pursuant to a plea deal.

In that case, the defendant was charged with one count of crack possession, among other charges. He entered a plea agreement that included a sentence of 106 months.  After his agreement was accepted by the trial judge and his sentence was entered, the U.S. Sentencing Commission amended the Sentencing Guidelines to reduce the disparity in the treatment of crack and powder cocaine, and made the amendment retroactive.  The defendant then sought to reduce his sentence accordingly.

But a U.S. District Court refused to do so, and the 6th Circuit affirmed.  “[T]he district court did not indicate that failing to resentence [the defendant] resulted in a miscarriage of justice. … [The defendant's] original 106-month sentence remained inside the guidelines range for his crime, even after the amendment,” the court said.  His 106-month sentence fell at the bottom of the range before the amendment and at the top of the range after the amendment, it noted....

[In another] case, arising within the Seventh Circuit, the court will decide whether a conviction for resisting arrest counts as a violent felony under the Armed Career Criminal Act, in Sykes v. U.S., No. 09-11311.  The Seventh Circuit concluded it was, finding that eluding a police officer is “purposeful, violent and aggressive.”  U.S. v. Sykes, No. 08-3624 (7th Cir., Mar. 12, 2010).

Lots of crime (and some punishment) in big pile of cert grants from SCOTUS long conference

As detailed in this post at SCOTUSblog, the Supreme Court this morning granted certiorari in fourteen new cases. The full orders list is here, and I think more than a third of the cases involve criminal justice issues:

• Kentucky v. King, concerning exigent circumstances (opinion below)

• US v. Tinklenberg, concerning speedy trial rights (opinion below)

• Bullcoming v. New Mexico, concerning Confrontation Clause rights (opinion below)

• Freeman v. US, concerning crack sentence reduction authority (opinion below)

• Sykes v. US, concerning application of Armed Career Criminal Act (opinion below)

Freedman and Sykes are the cases that should most interest sentencing fans. Neither is a blockbuster-in-waiting, but both should provide some of the new (and old) Justices to showcase their current thinking on various federal sentencing issues.

"Make new crack law retroactive"

The title of this post is the headline of this opinion piece appearing in today's National Law Journal authored by Harlan Protass and Mark Harris. Here is how it starts and ends:

Last month, President Obama signed landmark legislation revising broadly condemned laws passed in the late 1980s that punished crack cocaine offenses much more harshly than crimes involving powder cocaine. The new law raises the minimum amount of crack required to trigger a five-year mandatory minimum sentence from 5 to 28 grams, and the amount of crack required to generate a 10-year mandatory minimum from 50 to 280 grams. Although far from perfect — the new law still maintains an excessive distinction between crack and powder cocaine — the changes could, according to the U.S. Sentencing Commission, affect as many as 3,000 defendants each year, reducing the average prison term for crack offenses by more than two years. Attorney General Eric Holder Jr. described the new law as "long in coming."

Now Congress needs to finish the job by making the new scheme retroactive — a move that would permit thousands of men and women who were sentenced long ago for crimes involving crack to benefit from lawmakers' new and enlightened perspectives about punishment for those types of offenses. Basic fairness requires no less....

Opportunities to rethink — and cleanly remedy — social injustices are rare. The new crack sentencing bill signed into law last month presents just such a chance, one that lawmakers should not pass over. To do otherwise is to perpetuate mistakes that have taken a generation to fix.

Local perspective on the impact of new reduced crack sentences

This local story from Indiana, which is headlined "Crack, powder cocaine nearer equal footing," provides an interesting local view on some of the consequences of the new federal sentencing laws for crack offenses. Here are excerpts:

Two months after Congress voted in favor of lowering federal sentencing guidelines again for people convicted for crack cocaine, local defendants are already seeing changes. More changes could come, though, as local officials continue to advocate for more balance between people convicted of crack cocaine possession versus powder cocaine possession.

"I think the criminal defense community is just grateful this change has occurred," Jerry Flynn, an attorney with the local Federal Community Defenders, said....

The most recent federal legislation calls for [all crack/powder sentences] to be brought down to a ratio of 18:1. Although the U.S. Sentencing Commission has not enacted that part yet, U.S. Attorney David Capp said his office in Hammond is already acting for new defendants as though it's in place.

The changes to minimum sentencing has the bigger effect, though, Flynn said, because several years ago judges were given the authority to sentence defendants outside the guidelines. Minimum sentences, however, are hard and fast.

That doesn't mean he and other public defenders won't continue to fight for more fairness, Flynn said. He wants to see the ratio brought down to 1:1, meaning they would be exactly the same for either form of cocaine. The U.S. House of Representatives had voted in favor of the equal ration, although the U.S. Senate backed the 18:1 ratio. Flynn said he was encouraged support for 1:1 was already there....

Flynn said he hopes the sentencing commission, if it can, will also make the newest changes retroactive. Part of the problem is that the newest legislation isn't clear on the issue, he said. "I know I have already started receiving questions (from defendants)," he said. "It could be extremely significant for several, several people."...

Capp said he doesn't expect the changes to affect local cases too much because so many of the cases deal with larger amounts of drugs and usually include other charges, such as carrying a weapon during a drug transaction. "(We) focus our efforts on the worst offenders, the worst of the worst," Capp said.

His office does charge for smaller amounts of drugs, though, but that could change. Because states might now actually have tougher sentences than the federal government, the U.S. Attorney's office could start partnering with local prosecutors more and let them take over those cases, Capp said.

Seeking "on-the-ground" reports on what is going on with crack sentencings

It has now been almost two weeks since the House of Representatives voted in favor of the Fair Sentencing Act of 2010, and almost a full week since the FSA became law.  Though I have now seen lots of editorials from large and small papers praising the modification of crack mandatory sentencing provisions, I have yet to see a single story about how the new law is starting to impact actual crack sentencings.

There is a practical reason I am in a rush to figure all this out: there are, on average, over 100 crack sentencings in federal court every week.  And I had been hearing that a whole lot of crack sentencings had been put on hold after the Senate passed the FSA way back in March.  Further, the US Sentencing Commission now has less than three months to conform the crack guidelines to the intricate (and not always pro-defendant) provisions of the FSA.  So I wonder is there a rush to get sentencings done now, or is there more delay, or does this vary district-to-district and courtroom-to-courtroom?

I hope folks might use the comments or send me e-mail with any and all notable post-FSA-enactment crack sentencing reports.  Thanks!

Lengthy Third Circuit discussion of crack retroactivity issue that has split the circuits

A Third Circuit panel decision today US v. Flemming, No. 09-2726 (3d Cir. June 27, 2010) (available here), provides a thoughtful and comprehensive account of a little sentencing issue that has divided the circuits. Here is how the lengthy opinion in Flemming starts and ends:

Glenn Flemming was sentenced in February 2005 to 175 months’ imprisonment for federal firearm and crack cocaine offenses committed in 2002. After the United States Sentencing Commission retroactively lowered the offense levels for most crack cocaine offenses by two levels, Flemming moved for a reduction of sentence under 18 U.S.C. § 3582(c)(2).  The District Court denied his motion, concluding that it lacked authority to reduce Flemming’s sentence because he was a career offender under U.S.S.G. § 4B1.1.  On appeal, Flemming argues that, despite his status as a career offender, he is eligible for a sentence reduction under § 3582(c)(2) because the District Court granted him a downward departure under U.S.S.G. § 4A1.3 after concluding that the career offender enhancement overstated the seriousness of his criminal history, and instead sentenced him within the Guidelines range for crack cocaine offenses.

The narrow issue presented in this case — whether a career offender who receives a § 4A1.3 downward departure under a pre-2003 edition of the Sentencing Guidelines to the Guidelines range for crack cocaine offenses is eligible for a sentence reduction under § 3852(c)(2) — is one of first impression in our Court, but one that has divided our sister circuit courts.  The First and Second Circuits, as well as a divided panel of the Fourth Circuit, have concluded that such a defendant is eligible for a sentence reduction. The Eighth and Tenth Circuits, as well as a divided panel of the Sixth Circuit, have disagreed.

Though we do so through a somewhat different analysis, we join the First, Second, and Fourth Circuit Courts in concluding that such a defendant is eligible for a sentence reduction under § 3582(c)(2).  Accordingly, we vacate the District Court’s order and remand for further proceedings....

Application of the rule of lenity is called for only in rare cases, and thus we stress the narrowness of our holding.  We conclude that, under a pre-2003 edition of the Sentencing Guidelines, a career offender who is granted a § 4A1.3 downward departure to the Crack Cocaine Guidelines range is eligible for a sentence reduction under 18 U.S.C. § 3582(c)(2). Accordingly, we vacate the District Court’s order and remand this case for the Court to exercise its discretion to determine whether, and to what extent, a reduction in Flemming’s sentence is warranted.

A notable Sixth Circuit concurrence lamenting Dillon and modern severity

Concurring in a Sixth Circuit panel decision today in US v. Robinson, (6th Cir. June 25, 2010) (available here), Judge Merritt assails the Supreme Court's crack retroactivity ruling in Dillon last week and broadly laments current federal sentencing realities.  Here is a snippet of Judge Merritt's separate opinion:

The Sentencing Commission has the authority, according to United States v. Dillon, No. 09-6338, June 17, 2010, by mandatory rule, to entirely repeal individualized sentencing in such cases.  For the reasons stated by Justice Stevens in his dissent, I would reach the opposite conclusion, if I could, and apply the principle that under § 3582(c) a federal court should consider the “no-greater-than-necessary” principles of § 3553(a).

In addition, I would point out that 18 U.S.C. § 3661, unmentioned by the Court in Dillon, says:

No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence. (Emphasis added.)

This is a flat-out, general, statutory prohibition against restraining judges when they must pronounce sentence from considering the injustice of Dillon’s sentence or any injustice in Robinson’s sentence in this case. The Sentencing Commission’s rigid rule that continues in place overly harsh sentences gives no consideration to this statutory requirement.  So we continue on without hope for change with a sentencing system that Justice Stevens accurately describes as... "an exceptionally, and often mindlessly, harsh federal punishment scheme."

This “mindlessly harsh federal punishment scheme” is, as Justice Stevens says earlier in the opinion, now so bad that it should be regarded as “on dubious constitutional footing.”  In outlawing another such mindlessly harsh form of punishment more than 50 years ago — expatriation — the Warren Court said that our constitutional system “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”  Trop v. Dulles, 356 U.S. 86, 101 (1958).  In a concurring opinion, Justice Brennan pointed out:

In recent years we have seen such devices as indeterminate sentences and parole added to the traditional term of imprisonment. Such penal methods seek to achieve the end, at once more humane and effective, that society should make every effort to rehabilitate the offender and restore him as a useful member of that society as society’s own best protection. Id. at 111.

Justice Brennan referred to the effort to get rid of these values by using the punishment of expatriation as nothing “other than forcing retribution from the offender — naked vengeance.” Id. at 111-12.  The same thing is happening now once again.  We have eliminated rehabilitation and the parole system from the penal system through the sentencing guidelines, and both judges and administrators (other than the Sentencing Commission) have lost all authority to later adjust a sentence that is too harsh.  The guidelines themselves do not take into account rehabilitation, “maturing standards of decency,” and other values like age, disability, marital status, and parenthood.  Perhaps one of these days an American political institution will recognize what we have created and begin again to make some adjustments, as the Warren Court did in the 1960’s and 1970’s.  But for the time being, we just have to live with a “mindlessly, harsh federal punishment scheme.”

Percy Dillon's loss is sure to be other future defendants' gain

Though I feel bad for Percy Dillon and other defendants hoping to get an extra benefit from the US Sentencing Commission's lowered crack guidelines, Percy's loss in the Supreme Court today will likely prove to be a good thing for lots of other federal defendants.

As the USSC noted in its amicus brief in Dillon (which Justice Stevens rightly described as "subtle threat"), a ruling for Percy Dillon would have led the Commission to be VERY chary about making any future guideline reductions retroactive. But now that the USSC can clearly limit the extent of benefit previously sentenced defendants can get from new retroactive guidelines, the USSC need no longer fear the consequences of making new improved guidelines retroactive.

Especially if the Sentencing Commission sometime soon gets around to fixing some of the most troublesome and unduly severe aspects of the drug, fraud and child porn guidelines, lots of defendants now serving long prison terms under those guidelines probably should send Percy Dillon a thank you note if the USSC goes on to make some future fixes retroactive to other defendants' benefit.

SCOTUS rules 7-1 against defendant in crack retroactivity case

Fittingly, the Supreme Court this morning has handed down its biggest federal sentencing ruling this Term with a decision against the defendant in Dillon just as the big annual US Sentencing Commission conference gets started. I will comment on the opinion later today, but I am certain that the US Sentencing Commisioners will be pleased with this outcome.

The opinion can be accessed here.

UPDATE: The opinion for the Court draws a clear (and I think justified) distinction between sentence modification proceedings and full sentencing. Once that is done, the Court does not find it too hard to explain why Booker's advisory remedy does not apply to modification proceedings.

Split Sixth Circuit ruling spotlights split over who can get resentenced under new crack guidelines

Within the next few weeks, the Supreme Court will hand down a ruling in the Dillon case dealing with the extent of a district court's authority to reduce sentences when a defendant is eligible for a reduction under the Sentencing Commission new reduced crack guideline.  But the Dillon case is unlikley to resolve or even address questions concerning just who is eligible for a reduction in the first instance, and this eligibility issue has lead to some circuit splits in a variety of contexts

An intriguing  new split opinion today from the Sixth Circuit in US v. Pembrook, No. 08-6452 (6th Cir. Jun. 11, 2010) (available here), spotlights some aspects of this debate over this eligibility issue. Here is how the majority opinion in Pembrook starts:

In 1997, Daryl Marcus Pembrook pleaded guilty to possession with intent to distribute crack cocaine. Under U.S.S.G. § 4B1.1, Pembrook was a career offender. At sentencing, Pembrook prevailed upon the district court to depart downward from his career-offender guideline range to a sentence stated with reference to the analogous range for his crack-cocaine offenses. A decade later, Pembrook filed a motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2), arguing that Amendment 706 to the crack-cocaine guidelines had lowered his applicable guideline range. The district court denied his motion, on the grounds that Pembrook’s applicable guideline range was his career-offender range–not his crack-cocaine range–and Amendment 706 did not affect that range. Pembrook now appeals. Because we conclude that Pembrook’s applicable guideline range was his career-offender range, and Amendment 706 did not have the effect of lowering that range, we affirm.

Here is how the dissent in Pembrook starts:

The Sentencing Guidelines should be interpreted, if the words can fairly be so read, to permit resentencing when a properly applied Guideline that affected the length of a sentence is later retroactively reduced. When two Guideline calculations were properly used at two different steps of the sentencing determination process to determine a defendant’s original sentence, no policy supports permitting resentencing only if the first, but not if the second, calculation would have been different under a retroactive amendment. It is hard to imagine why the Sentencing Commission would adopt such a policy.  The syntax of the operative policy statement language does not require such a limit; indeed, it cuts the other way.  Under the policy statement, there must have been a lowering of “the defendant’s applicable guideline range.” U.S.S.G. § 1B1.10(a)(2)(B).  The words most naturally mean “a guideline range [properly] applied to the defendant.”  The words do not require that there be only one such range. By analogy, if a sport rule provides for a penalty if “the player’s foot steps out of bounds,” English syntax does not require that the rule apply only to the right foot or the left foot.  The clear meaning of “the player’s foot” is “a foot of the player.”  In short, because the Sentencing Commission retroactively lowered the Guideline range that the district court properly applied to Pembrook so as to affect his sentence, the requirements of the statute and the operative policy statement were fulfilled, and the district court had the authority to resentence Pembrook.

I have not given much attention to these issues as we await a ruling from the Supreme Court in Dillon.  But it will be interesting to see if SCOTUS will take up

Telling(?) distractions during Dillon SCOTUS oral argument

I have now had a chance to review quickly the transcript from yesterday's Supreme Court oral argument in Dillon, which can be accessed here.  I am eager to here reader reactions, and this piece in the Pittsburgh Post-Gazette, which is headlined "Justices hear appeal on drug penalty inequities," summarizes most of the highlights better than I could. My first cut reaction is that, at many stages, certain Justices seemed to be distracted by concerns that suggest that they may not be especially sypathetic to Percy Dillon's fate.

For example, Justice Ginsburg suggests that it would not be "fair" for Percy Dillon to get a chance to have his severe crack sentence impacted by Booker when "others whose sentence has become final cannot get into the court's door because they don't have the entering wedge" provided by the revision of the crack guidelines.  But this expressed concern for systemic "fairness" is itself driven by the Justices own disinclination to allow the Booker remedy to apply retroactively, and it also fails to deal with the fact that Dillon was originally subject to a unique form of unfairness because his original sentence was so inflated by the old severe crack guidelines.  The way Justice Ginsburg frames her concerns about fairness suggests she thinks Dillon should not get a "special" chance to get a true post-Booker assessment of sentencing justice.

Sentencing day at the US Supreme Court

This morning the Supreme Court will hear oral argument on two fascinating and important "back end" sentencing cases: Dillon v. US (09-6338) and Barber v. Thomas (09-5201).

Because I was surprised that the Justices now took up the long-simmering issues in these two cases, I am chary about making any predictions about how the arguments will go. But I hope later this week to be able to offer commentary on what various Justices seem to be thinking in these cases. In the meantime, here are terrific previews of the cases from SCOTUSblog:

• Does United States v. Booker apply to resentencing proceedings under 18 U.S.C. 3582(c)(2)?
• Calculation of “good time” sentencing credits

I welcome and encourage reader thoughts about either or both of these cases (especially now that comments seem to be working again).

Details on Dillon as SCOTUS oral argument approaches

Because there is so much that could be said about the crack guideline modification retroactivity issue that goes before the Supreme Court on Tuesday in the Dillon case, I am not sure where to start.  The case directly involves or implicitly raises issues of constitutional law, statutory doctrine, administrative powers and policy-based practicalities, with a splash of Booker and a hint of equity thrown in for good measure.  Helpfully, this new local piece, which is headlined "Cocaine sentencing inequity goes to top court: Supreme Court will hear Percy Dillon's plea for a substantial sentence reduction," reviews some of the basics effectively while also discussing the defendant whose fate will be before SCOTUS on Tuesday. 

Seventh Circuit requires "some minimal explanation" for sentencing modification ruling

The Seventh Circuit has issued a notable little opinion today in US v. Marion, No. 09-2525 (7th Cir. Dec. 29, 2009) (available here), concerning a district court's obligations when ruling on a federal defendant's motion for a sentence reduction under 3852(c)(2). Here is the heart of the ruling:

Although ruling on a motion to reduce is not the same as imposing a sentence, we think that the reasoning behind requiring a brief statement of reasons at sentencing compels a similar requirement when deciding a motion to reduce. Some statement of the district court’s reasoning is necessary for this court to be able to meaningfully review its decision....

We think that a district court’s order on a motion for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2) should at least address briefly any significant events that may have occurred since the original sentencing. If the district court believes that nothing particularly noteworthy has changed concerning the basis for the defendant’s original sentence, some simple explanation to that effect will apprise both the defendant and this court of that fact.

Our opinion in this case should not be read to expand what is required of a district court when sentencing a defendant or considering a motion to reduce a sentence under § 3582(c)(2). We have no intention of counting words or applying some rigid formulation to statements of reasons, particularly on a motion to reduce a sentence.  The problem with the order here is not that the district court used a form order, or even that the order contained only a one-sentence explanation. The problem arises from the fact that it is impossible for us to ensure that the district court did not abuse its discretion if the order shows only that the district court exercised its discretion rather than showing how it exercised that discretion.  Some minimal explanation is required.

Supreme Court grants cert on applicability of Booker in sentencing modifications!

I am surprised and pleased to report that the Supreme Court today announced that it will be reviewing another important federal sentencing issue this term: whether and how Booker impacts a court's sentencing authority in sentence modification proceedings.  Here are the basics from this report at SCOTUSblog:

The Court also granted a second case — Dillon v. U.S. (09-6338). That case tests whether the federal Sentencing Guidelines are binding when a federal judge imposes a new sentence. The case will test whether the Supreme Court’s 2005 ruling in U.S. v. Booker, making the Guidelines advisory only, applies in a sentence modification proceeding.  Review was granted even though the Court had previously refused to hear the issue in a number of cases.  The U.S. Solicitor General recommended a denial in this case, too.

Other matters will now take me off-line for the next few hours, but I hope to comment on this surprising new sentencing grant later in the day.  In the meantime, I hope commentators will speculate about why SCOTUS took this particular case at this particular time.

UPDATE:  Here is the basic AP coverage of this grant in Dillon, and SCOTUSblog has helpfully posted the Third Circuit's opinion here and the cert petition here.  As DEJ notes in the comments, the defendant in Dillon has good, sypathetic facts, which perhaps explains why the Justices decided that he should get the golden ticket to come to the magical SCOTUS factory with an issue that has been pressed by perhaps hundreds of other defendants.

New federal sentencing data from the US Sentencing Commission

I am pleased to discover that the US Sentencing Commission has some fresh new sentencing data now up on its website.  Here are links to the new data runs, with descriptions from the USSC's website:

Fourth Quarter FY09 Quarterly Sentencing Update:  An extensive set of tables and charts presenting fiscal year quarterly data on cases in which the offender was sentenced through the fourth quarter of fiscal year 2009. The report also provides an analysis of sentencing trends over five years for several key sentencing practices. (Published December 2, 2009)

Data on Retroactive Application of the Crack Cocaine Amendment:  A set of tables presenting preliminary data on cases in which a motion for a reduced sentence was considered under 18 U.S.C. § 3582(c)(2). These cases involve retroactive application of the crack cocaine amendment to the sentencing guidelines (Amendment 706, as amended by Amendment 711) which became effective on November 1, 2007 and which was made retroactive effective March 3, 2008. The data in this report represents those motions decided by the courts through November 10, 2009 and for which data was received, coded, and edited by the Commission as of November 17, 2009.

I hope to find the time and energy before too long to pour through this new data and report on anything special that catches my eye.  Readers are welcomed and encouraged, of course, to use the comments to the same end.

Senator Durbin responds to Washington Post editorial opposing crack/powder parity

The Washington Post has printed this letter from US Senator Dick Durbin, which responds to the Post's editorial (discussed here) that criticized Durbin's proposed legislation to eliminate the sentencing disparity between crack and powder cocaine.  Here are excerpts:

The editorial wrongly argued that crack is more addictive and associated with more violence than powder cocaine. It is that flawed logic that justified the original sentencing disparity.

Countless studies have shown that there's little difference in the physiological impact of crack and powder cocaine. The American Medical Association reports that "the physiological and psychoactive effects of cocaine are similar" regardless of whether the form is crack or powder.

Furthermore, the U.S. Sentencing Commission report you cited actually found that 10 percent of crack offenders were involved in violence -- not 25 percent, as the editorial asserted, using a different definition of "violence" -- while 6 percent of powder offenders were involved in violence. That 4-percentage-point difference hardly justifies a disparity in mandatory minimum sentences.

The editorial also failed to note that my bill would significantly increase penalties for violent and large-scale drug traffickers, refocusing limited federal resources on the worst offenders.

Washington Post editorial argues against completely eliminating crack/powder sentencing disparity

In this new editorial, which is headlined "The right sentence: As Congress weighs the cocaine sentencing disparity, it should remember crack's dangers," the Washington Post comes out against equalizing the sentences for crack and powder cocaine.  Here is the heart of the Post's pitch:

The Justice Department has announced its support for reducing crack penalties to mirror exactly those for powder.  A bill recently introduced by Sen. Richard J. Durbin (D-Ill.) would codify this 1-to-1 ratio into law.  Supporters of such a move point to the racial disparities between arrests for crack and powder, and argue that anything less than parity would be viewed by African Americans as a decision to continue targeting black men for tougher sentences.  They also note that studies have shown that the addictive nature of crack has been significantly exaggerated and that no other drug carries with it different penalties depending on how it is consumed.

But appearances alone cannot justify the move contemplated by the Justice Department and the Durbin bill.  A 2007 report from the U.S. Sentencing Commission shows that smoking crack delivers a faster, more intense high than snorting powder and that this high is more short-lived, thus compelling most crack users to seek additional doses of the drug.  The differences in addiction rates between crack and powder are not enormous, but they are real, and the study also notes that crack users often experience faster rates of physical deterioration than do those who consume powder.  The report notes that roughly one-fourth of crack offenders are associated with violence, and that this rate exceeds that for powder cocaine offenders.  As in the 1980s, predominantly African American communities continue to bear the brunt of the crime and addiction brought on by this awful drug.

These facts suggest that there should be some difference in the penalties for crack and powder cocaine, but how much?  This is a difficult question to answer with precision, so perhaps the best solution would be to eliminate the mandatory minimums for both crack and powder and build into the sentencing guidelines tougher penalty ranges for crack that judges could apply on a case-by-case basis.

Like most efforts to assess a complex issue in a short space, this Post editorial is more confusing than compelling.  For starters, the federal sentencing guidelines already have much tougher penalty ranges for crack that judges must apply on a case-by-case basis after Booker.  Second, the fundamental problem with both crack and powder sentencing is an undue reliance on drug weights rather than offense role in setting sentencing ranges.  Third, given the apparent "success" of the recent retroactive reduction in crack sentences, it is a shame that the Post relies more on tired old debates than new real-world developments in assessing this important issue.

Sixth Circuit officially joins bulk of other circuits declaring limits on 3582(c) sentence modifications

The Sixth Circuit today describes effectively the current state of the circuit law concerning sentence modifications pursuant to 18 U.S.C. § 3582(c)(2) in US v. Washington, No. 09-5110 (6th Cir. Oct. 27, 2009) (available here).  Here is how the majority opinion in Washington starts:

Defendant Errol Eugene Washington appeals the district court’s order denying, in part, his motion to reduce and modify his otherwise valid sentence pursuant to 18 U.S.C. § 3582(c)(2).  Washington’s appeal presents an issue of first impression in our circuit: whether the district court, in modifying a sentence pursuant to § 3582(c)(2), has authority under United States v. Booker, 543 U.S. 220 (2005), to reduce a sentence beyond the retroactive United States Sentencing Guidelines amendment range.  For the reasons explained below, we hold that the district court does not have such authority and therefore affirm the judgment of the district court.

For some reason that she fails to explain, Judge Moore does not join the majority opinion in Washington and just concurs separately.

A (questionable?) Eighth Circuit reversal of a reduction in crack guideline retroactivity case

The implementation of the retroactive crack guidelines has produced a lot of federal circuit court rulings, though most have involved a circuit affirming a district court's decision to deny a reduction to a defendant.  But the Eighth Circuit has a ruling today in US v. Collier, No. 08-3306 (8th Cir. Sept. 21, 2009) (available here), in which a panel, upon the  government's appeal reverses a district court's decision to grant the defendant a sentencereduction based on the crack retroactivity provisions.

The particulars of Collier are complicated, but the case especially draws my attention because it would seem ripe for a viable cert petition because the defendant (a) seems relatively sympathetic, (b) prevailed in the district court by getting a lower sentence, and (c) had his reduced sentenced reversed by the Eighth Circuit upon the government's appeal.  As some astute readers may realize, this "abc formula" produced cert grants in Claiborne and Gall and Spears, and perhaps Collier might file a petition to see if he can get the formula to work for him as well.

Tenth Circuit rejects novel argument about crack retroactivity rules

The Tenth Circuit today in US v. Dryden, No. 08-3310 (10th Cir. April 30, 2009) (available here), rejects a defendant's novel effort to get the benefit of the new retroactive crack guidelines. Here is how it starts:

After the United States Sentencing Commission decided to give retroactive effect to its recent amendment to the crack-cocaine guidelines, Edward Dryden moved under 18 U.S.C. § 3582(c)(2) for a reduction in his sentence.  The district court denied the motion, agreeing with the government that a reduction would be barred by the Commission’s policy statement in USSG § 1B1.10(a)(2) , because the amended guideline would not have reduced Mr. Dryden’s guideline sentencing range. Mr. Dryden appeals, raising the novel argument that the Commission’s policy statement results from an unconstitutional delegation to the Commission of legislative authority to restrict the jurisdiction of federal courts.  See Panama Ref. Co. v. Ryan, 293 U.S. 388 (1935).  Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

Eleventh Circuit rejects arguments for a right to counsel at crack sentence modification proceedings

Addressing an interesting right to counsel issue, the Eleventh Circuit today in US v. Webb, No. 08-13405 (11th Cir. April 13, 2009) (available here), concludes that "there is no statutory or constitutional right to counsel for a § 3582(c)(2) motion or hearing [and thus] the decision to appoint an attorney is left to the discretion of the district court."  I believe that this Webb ruling is the first circuit decision on this right to counsel issue in the application of the US Sentencing Commission's recent reduction of crack guideline sentences, but the Eleventh Circuit says that other circuit have come to the same conclusion in earlier decisions:

The notion of a statutory or constitutional right to counsel for § 3582(c)(2) motions has been rejected by all of our sister circuits that have addressed the issue, and we agree with this consensus.  See United States v. Legree, 205 F.3d 724, 730 (4th Cir. 2000); United States v. Tidwell, 178 F.3d 946, 949 (7th Cir. 1999); United States v. Townsend, 98 F.3d 510, 512–13 (9th Cir. 1996) (per curiam); United States v. Whitebird, 55 F.3d 1007, 1010–11 (5th Cir. 1995); United States v. Reddick, 53 F.3d 462, 464-65 (2d Cir. 1995).  As the Fifth Circuit noted, a § 3582(c)(2) motion “is simply a vehicle through which appropriately sentenced prisoners can urge the court to exercise leniency to give certain defendants the benefits of an amendment to the Guidelines,” rather than “a challenge to the appropriateness of the original sentence.” Whitebird, 55 F.3d at 1011.  A defendant bringing such a motion thus would not be eligible for the Sixth Amendment rights that would normally attach in a sentencing or resentencing hearing. See id.; see also Townsend, 98 F.3d at 512–13 (agreeing with Whitebird’s rationale).  Additionally, we decline to find that the Fifth Amendment provides a mandatory right of counsel for all § 3582(c)(2) motions as a matter of fundamental fairness. The Federal Rules of Criminal Procedure permit courts to hold § 3582(c)(2) hearings without defendants being present. See Fed. R. Crim. P. 43(b)(4). Since we have found that the rights afforded under Rule 43 are at least as broad as those from Fifth Amendment due process, a defendant has no right to be present at such a hearing, and thus there would be no automatic Fifth Amendment right to counsel.

A footnote at the end of this discussion adds this important point that may help mitigate the practical impact of this ruling in many settings:

We note that courts have the discretion to appoint counsel.  See Whitebird, 55 F.3d 1011.  Given the array of factors that courts now must consider in deciding whether to reduce a sentence under § 3582(c)(2), there may be instances in which equitable concerns would make the appointment of counsel appropriate to ensure a just outcome.  See United States v. Robinson, 542 F.3d 1045, 1052 (5th Cir. 2008) (appointing counsel in § 3582(c)(2) proceeding “in the interest of justice” and noting that the “new complexities” created by changes to the sentencing guidelines might necessitate reconsideration of whether there should be a statutory or constitutional right to counsel in all such cases).

Split Third Circuit debates crack guideline retroactivity following binding sentencing plea

In a complicated ruling on Friday, a divided Third Circuit in US v. Sanchez, No. 08-1847 (3d Cir. April 5, 2009) (available here), seemed to create a circuit split on whether a district court can reduce a previously imposed crack sentence based on a binding plea agreement.  The first paragraph of Judge Roth's dissent from the Sanchez majority provides a flavor of the issues involved:

No good deed goes unpunished.  The majority provides for resentencing under § 3582(c) for criminal defendants who go to trial – but not for those who enter into binding plea agreements.  For the majority, the binding nature of such agreements justifies a difference in the treatment between the offenders who choose to go to trial and those who choose to plead guilty thus saving judicial and governmental resources.  I find this distinction false because a jury verdict is also binding on the parties. Accordingly, I believe that the binding effect of the factors leading up to the judgment should not preclude the application of § 3582(c).  For these reasons, I respectfully dissent from the majority opinion and suggest that defendants sentenced under binding plea agreements should be permitted to move for resentencing based on a change in the Guidelines that would affect the basic elements that led up to the final plea agreed upon.

For various reasons, Sanchez is not likely a good cert vehicle.  But the ruling spotlights another challenging legal issue that has arisen in the retroactive implementation of the new crack guidelines.  It will be interesting to see if the Supreme Court ever takes up any cases involving resentencings under § 3582(c).

A strong pitch to SCOTUS to have Booker apply to crack sentence reductions

Late last week, a prominent group of SCOTUS gurus filed a cert petition in US v. Dunphy making a full-throated argument for judges to have broad resentencing authority when ruling on motions to reduce previously imposed crack sentences.  The cert petition can be downloaded below, and here is its summary statement of reasons for granting the writ:

Federal courts across the country are divided over whether federal district courts must treat amended sentencing guidelines ranges as binding when imposing new sentences under 18 U.S.C. § 3582, or whether this Court’s holding in United States v. Booker, 543 U.S. 220 (2005), requires that they be treated as only advisory.  This question is important and arises frequently, particularly in the context of the amended guidelines for crack cocaine offenses.  This is such a case and is an ideal vehicle for resolving the split of authority.

The Fourth Circuit’s holding that district courts must treat the Guidelines as binding in 18 U.S.C. § 3582 proceedings also is wrong.  This Court held in Booker that the Guidelines violate the Sixth Amendment when they require a longer sentence than is otherwise allowed based on the elements of the crime of conviction. Id. at 244.  Such is the case here. Furthermore, treating the Guidelines as binding when constructing a new sentence flouts Booker’s mandate that binding guidelines are “no longer an open choice.”  Booker, 543 U.S. at 263; accord United States v. Spears, 129 S. Ct. 840, 842 (2009) (per curiam) (Guidelines are “advisory only”) (quoting Kimbrough v. United States, 128 S. Ct. 558, 560 (2007)).

It is no answer to claim, as the Fourth Circuit does and the Sentencing Commission suggests, that proceedings under Section 3582 do not constitute “full” resentencings. Pet. App. 8a-9a, 11a, 15a.  That is just a label. District courts impose new sentences under Section 3582 the same way they conduct other resentencings. And whenever a court reopens a sentence and constructs a new one, it must do so in accordance with the law that exists at the time the new sentence is imposed, not just with (retroactive) sentencing guidelines.  Booker is the law; this Court should instruct the federal courts of appeals again that they must follow it.

Download Dunphy Cert Petition

Ducan Fanfan loses appeal seeking greater crack sentence reduction

Ducan Fanfan — who, in a future "law nerd" version of Trivial Pursuit, will be the answer to the question "What was the name of the defendant in the companion case to US v. Booker?" —  has made some more appellate law news today as a result of the First Circuit's work in US v. Fanfan, No. 08-2062 (1st Cir. Mar. 4, 2009)(available here).  Here is how Fanfan's latest legal loss begins:

After much litigation, Appellant Ducan Fanfan's sentence for a drug offense involving crack cocaine became final.  United States v. Fanfan, 468 F.3d 7 (1st Cir. 2006), cert. denied, 549 U.S. 1300 (2007).  On July 9, 2008, Fanfan sought an adjusted sentence under 18 U.S.C. § 3582(c)(2) in light of a subsequent amendment to the guidelines that effectively reduced the guideline range for certain crack cocaine offenders. U.S.S.G. Amendment 706 (effective Nov. 1, 2007). The district court granted this request and imposed a sentence within the new guideline range.  On the same day that the district court allowed his request, Fanfan filed a motion for reconsideration, asking the court to instead impose a variant sentence below the new guideline range based on the district court's Kimbrough discretion.  The district court refused and, in citing another district court decision, United States v. Julien, 550 F. Supp. 2d 138 (D. Me. 2008), indicated that it did not believe it had the legal authority to impose such a variant sentence in the § 3582(c)(2) context. Fanfan appeals this conclusion.  After careful consideration, we affirm.

Latest official data on implementation of retroactive crack guidelines

The US Sentencing Commission has available here the latest updated data on the retroactive application of its revised crack sentencing guidelines. Here is how the data is described:

A set of tables presenting preliminary data on cases in which a motion for a reduced sentence was considered under 18 U.S.C. § 3582(c)(2).  These cases involve retroactive application of the crack cocaine amendment to the sentencing guidelines (Amendment 706, as amended by Amendment 711) which became effective on November 1, 2007 and which was made retroactive effective March 3, 2008.  The data in this report represents those motions decided by the courts through January 21, 2009 and for which data was received, coded, and edited by the Commission as of January 26, 2009.

As I have said before, I continue to be impressed and somewhat surprised by how few problems there have been applying the new crack guidelines retroactively, especially given what a huge fuss was made by the Justice Department about the idea before it became a reality back in March.

Though Booker did not help Booker, the reduced crack guidelines did

The significance of the US Sentencing Commission's decision to make its reduced crack guidelines retroactive has been usefully highlighted by a ruling today in favor of a defendant with a well-known name: Freddie Booker.  As sentencing fans recall, though Booker won his Supreme Court case, he was sentencing again to the same 360-month term imprisonment at resentencing because the Booker remedy authorized sentence-enhancing judicial fact-finding as long as the guidelines were treated as advisory.  But today, as reported here via an e-mail from a federal defender, Freddie finally go a sentencing break:

Although meager, and way too late, I am pleased to report that Freddie Joe Booker finally got at least a small amount of relief.  Chief Judge Crabb in the Western District of Wisconsin today granted Freddie Booker's 3582 motion and reduced his 360-month sentence to 324 months (bottom of range two levels lower).

Another local article showing relative ease of implementing crack reductions

This effective local article, headlined "Q-C crack cocaine sentences reduced," provides yet another example of how effectively and efficiently lower courts have been implementing the reduced crack sentences that the Sentencing Commission made retroactive. Here are snippets:

After playing football for the Iowa Hawkeyes, Ernest Crank turned to dealing crack cocaine. The amount of crack he dealt landed Crank, a native of Chicago, in a federal courtroom in Davenport and then in federal prison for 20 years. Crank has learned much during time so far in prison, court documents say.

“He has taken advantage of every program made available to him,” his attorney, Clemens Erdahl, wrote in a motion to reduce Crank’s sentence. “His self-education in the law … is evidence of an excellent mind and the ability to channel his time and energy productively. Thus, defendant is a better man than the one who was incarcerated over nine years ago.”

But what Crank has come to know during his prison time has little to do with the four-year reduction in sentence he received. Instead, his request is one of thousands filed nationally as federal officials reduced the amount of time people spend in prison for dealing the highly addictive drug that affects the black community more than any other....

For the most part, the process has gone smoothly in the two federal courthouses that serve the Quad-Cities, officials said. Prosecutors and defense attorneys worked with probation officers to sift through applications to determine who was eligible and who was not. People with mandatory sentences and career offender status were out. A few people convicted of other types of crime attempted to ask for reductions, too.

In the Central District of Illinois, of which the Illinois Quad-Cities is a part, 307 cases were considered as of the beginning of December, according to the U.S. Sentencing Commission. Of those 139 were granted, and 168 were denied. The average decrease was 28 months.

Jeff Lang, assistant U.S. attorney, said the process was smooth for the most part. Prosecutors examined cases to determine if a person would present a substantial public safety risk if released...

In the Southern District of Iowa, which includes the Iowa Quad-Cities, 144 cases were considered as of December, according to the U.S. Sentencing Commission. Eighty were granted; 64 were denied. The average reduction was 27 months.

Second Circuit uses lenity principles to interpret broadly judicial authority to grant crack reductions

The Second Circuit today in US v. McGee, No. 08-1619 (2d Cir. Jan. 23, 2009) (available here), works through the particulars of whether and when a defendant may be able to get the benefit of the new crack guidelines.  The opinion's methodology, as well as its result, may hearten a lot of defendants and counsel who have not been able to get all the relief they seek through crack reduction motions.  Here are the key concluding sections of the McGee ruling:

We acknowledge that U.S.S.G. § 1B1.10 can be read to permit a reduced sentence only where the defendant’s pre-departure sentencing range is found within the crack cocaine guidelines. However, “the meaning of language is inherently contextual [and] the [Supreme] Court has always reserved lenity for those situations in which a reasonable doubt persists about a statute’s intended scope even after resort to the language and structure, legislative history, and motivating policies of the statute.” United States v. Dauray, 215 F.3d 257, 264 (2d Cir. 2000) (alteration and quotation marks omitted); see also United States v. Simpson, 319 F.3d 81, 86-87 (2d Cir. 2002) (holding that the rule of lenity applies to Sentencing Guidelines).  Here, we conclude that there is ambiguity as to whether the Sentencing Commission intended to exclude defendants such as McGee, who were clearly sentenced based on the crack cocaine guidelines and were disadvantaged by the 100-to-1 sentencing disparity that the crack amendments sought to correct, from the reach of the amendments....

We conclude that a defendant who was designated a career offender but ultimately explicitly sentenced based on a Guidelines range calculated by Section 2D1.1 of the Guidelines is eligible for a reduced sentence under 18 U.S.C. § 3582(c)(2) and the crack amendments.