April 11, 2014
Sentencing Commission Votes to Adjust the Drug Quantity Table Down by 2 Levels
Yesterday, the Sentencing Commission voted on various amendments to the guidelines, including an amendment to adjust the Drug Quantity Table down by 2 levels. The amendments will be submitted to Congress by May 1, 2013, and, barring Congressional action, they will take effect November 1, 2014.
The amendment to the drug guidelines does not address retroactivity. The Commission will publish an issue for comment on retroactivity
, with comments due in June, 2014.
Practitioners should consider using yesterday's vote on the drug guidelines to argue for a variance or continuance starting immediately. As noted in this Latest News Post
, last month DOJ directed "prosecutors not to object if defendants in court seek to have the [then] newly proposed [drug] guidelines applied to them during sentencing."
For more on all of the amendments on which the Commission voted, including drugs, read this Summary of 2014 Guideline Amendments
by Sentencing Resource Counsel. The full text of the amendments is available in this Reader-Friendly Version
March 27, 2014
Supreme Court Rules on What Constitutes a "Misdemeanor Crime of Domestic Violence” Under 18 U. S. C. §922(g)(9)
Yesterday, the Supreme Court issued an opinion in United States v. Castleman
(No. 12-1371), in which it held that Castleman's prior Tennessee conviction for "intentionally or knowingly caus[ing] bodily injury to" the mother of his child qualified as a "misdemeanor crime of domestic violence" under 18 U. S. C. §922(g)(9).
Writing for the majority, Justice Sotomayor first pointed to the legislative history of the statue, noting that Congress sought to close a loophole in the gun laws: "While felons had long been barred from possessing guns, many perpetrators of domestic violence are convicted only of misdemeanors." Turning to the definition of "misdemeanor crime of domestic violence" in the statute, the Court focused on the requirement that such an offense have as an element "the use or attempted use of physical force."
In interpreting "physical force" the Court applied the common-law definition "namely, offensive touching," and concluded that such a definition "fits perfectly" in cases involving convictions for common-law battery, such as Castleman's.
The majority relied on Johnson v. United States
, 559 U.S. 133 (2010) in support of its conclusion. In Johnson
, the Court addressed the "force clause" in the ACCA's definition of "violent felony," which defines a "violent felony" as an offense that has "as an element the use, attempted use, or threatened use of physical force." The Court held that the force in that clause must be "violent force," that is, "force capable of causing physical pain or injury to another person." Addressing a prior battery conviction, the Court held that the common-law element of "force" in the crime of battery, which can be the slightest offensive touching, does not fit with the kind of "violent force" Congress had in mind in enacting the ACCA.. As a result, generic battery is not a "violent felony" for purposes of the ACCA. Because the intent behind the enactment of ACCA differed from the intent underlying §922(g)(9), the Castleman majority reasoned that the common-law meaning of force should apply in interpreting the latter.
For more on the opinion, see this SCOTUSblog post
March 13, 2014
Holder Supports Commission's Proposed Reduction in Drug Quantity Table and Directs Prosecutors Not to Object to Requests for Application of the Proposed Drug Guidelines in Current Sentencings
At today's public hearing before the Sentencing Commission, Attorney General Holder voiced his support of the Commission's proposal to reduce the drug quantity table by 2 levels. See this DOJ press release
for the text of Holder's testimony, as prepared for delivery. According to the DOJ press release, until the Commission votes on the proposal, "the Justice Department will direct prosecutors not to object if defendants in court seek to have the newly proposed guidelines applied to them during sentencing." The DOJ submitted written comments
on these and other proposed guidelines.
March 06, 2014
Supreme Court Determines What Is Needed to Show Aiding and Abetting of an 18 U.S.C. § 924(c) Offense
Yesterday, the Supreme Court decided Rosemond v. United States
(No. 12-895), addressing what constitutes aiding and abetting the use or carrying of a firearm during and irelation to any crime of violence or drug trafficking crime under 18 U.S.C. § 924(c). In an opinion authored by Justice Kagan, the Court held, "[T]he Government makes its case by proving that the defendant actively participated in the underlying drug trafficking or violent crime with advance knowledge that a confederate would use or carry a gun during the crime’s commission. We also conclude that the jury instructions given below were erroneous because they failed to require that the defendant knew in advance that one of his cohorts would be armed."
For an analysis of the opinion see this SCOTUSblog post
February 26, 2014
Supreme Court Issues Opinions on Warrantless Search of Premises, Pre-Trial Restraint on Forfeitable Property, and Crime of Reentering a Miltiary Installation
This week, the Supreme Court issued opinions in Fernandez v. California
(No. 12-7822 ) (limiting the exception to the rule permitting warrantless searches of jointly occupied premises upon consent of one of the occupants); Kaley v. United States
(No. 12-464) (permitting the pre-trial restraint on an indicted defendant's forfeitable property without a post-indictment judicial finding of probable cause), and United States v. Apel
(No. 12-1038) (interpreting the term "military installation" under 18 U.S.C. §1382).
, the Court limited the application of Georgia v. Randolph
, which had held that the consent of one occupant is insufficient to authorize the police to search a premises without a warrant if another occupant is present and objects to the search. The majority refused to extend this rule to Fernandez's case: "Our opinion in Randolph
took great pains to emphasize that its holding was limited to situations in which the objecting occupant is physically present. We therefore refuse to extend Randolph
to the very different situation in this case, where consent was provided by an abused woman well after her male partner had been removed from the apartment they shared." For more on the facts and reasoning of the opinion, see this opinion analysis
and this commentary
The Court in Kaley
addressed the extent to which a criminal defendant can challenge the pre-trial seizure of forfeitable assets under 21 U. S. C. §853(e). The defendants argued that they should be able to challenge the grand jury's finding of probable cause underlying the asset freeze, because they otherwise could not afford to retain their counsel of choice. The Court rejected that argument. Justice Kagan, for the majority, wrote: "In United States v. Monsanto
, 491 U.S. 600, 615 (1989), we approved the constitutionality of [an order freezing assets] so long as it is 'based on a finding of probable cause to believe that the property will ultimately be proved forfeitable.' And we held that standard to apply even when a defendant seeks to use the disputed property to pay for a lawyer."
"The Kaleys little dispute that proposition; their argument is instead about who should have the last word as to probable cause. A grand jury has already found probable cause to think that the Kaleys committed the offenses charged; that is why an indictment issued. No one doubts that those crimes are serious enough to trigger forfeiture. Similarly, no one contests that the assets in question derive from, or were used in committing, the offenses . . . . The only question is whether the Kaleys are constitutionally entitled to a judicial re-determination of the conclusion the grand jury already reached: that probable cause supports this criminal prosecution . . . . And that question, we think, has a ready answer, because a fundamental and historic commitment of our criminal justice system is to entrust those probable cause findings to grand juries."
For an analysis of the opinion see this SCOTUSblog post.
In Apel, the Court held that for the purposes of 18 U.S.C. § 1382, which makes it a crime to re-enter a “military installation” after having been ordered not to do so, a portion of an Air Force base that contains a designated protest area and an easement for a public road qualifies as a “military installation.” The Court did not address whether the statute would be unconstitutional as applied to the protester in this case. For an analysis of the opinion see this SCOTUSblog post.
January 28, 2014
Supreme Court Rejects Drug Trafficking Sentencing Enhancement Where Defendant's Drug Sale Was Not the But-For Cause of User's Death
In Burrage v. United States
, decided yesterday, the Supreme Court unanimously held that the government must prove but-for causation under 21 U.S.C. § 841(b)(1)(C) in order to trigger the 20-year mandatory minimum and increased statutory maximum for drug trafficking when "death or serious bodily injury results from the use" of the drug. The Court reversed Burrage's conviction for distributing heroin with "death resulting," as the government conceded that there is "no evidence that [the victim] would have lived but-for his heroin use." For an analysis of the opinion, see this SCOTUSblog post
January 21, 2014
Supreme Court to Hear Cell Phone Search Cases
On January 17th the Supreme Court granted certiorari in two cases, United States v. Wurie
(No. 13-212) and Riley v. California
(No. 13-132), to address the constitutionality of a warrantless search of a cell phone at the time of arrest. For more on these cases, see this SCOTUSblog post
January 10, 2014
Sentencing Commission Proposes Guideline Amendments That Include Reducing the Drug Quantity Table by 2 Levels
Yesterday, the United States Sentencing Commission voted to publish proposed guideline amendments, including possible reductions to the guidelines levels for drug trafficking offenses and a proposed amendment addressing the implementation of the Violence Against Women Act. A public hearing on the proposed amendments will be held on March 13, 2014. Read the Commission's press release
and the text of the proposed amendments
for more information.
December 20, 2013
President Commutes 8 Sentences; Makes Strong Statement on Need for Legislative Reform
Yesterday, the President commuted the sentences of 8 men and women, and made this Statement on Clemency:
Three years ago, I signed the bipartisan Fair Sentencing Act, which dramatically narrowed the disparity between penalties for crack and powder cocaine offenses. This law began to right a decades-old injustice, but for thousands of inmates, it came too late. If they had been sentenced under the current law, many of them would have already served their time and paid their debt to society. Instead, because of a disparity in the law that is now recognized as unjust, they remain in prison, separated from their families and their communities, at a cost of millions of taxpayer dollars each year.
Today, I am commuting the prison terms of eight men and women who were sentenced under an unfair system. Each of them has served more than 15 years in prison. In several cases, the sentencing judges expressed frustration that the law at the time did not allow them to issue punishments that more appropriately fit the crime.
Commuting the sentences of these eight Americans is an important step toward restoring fundamental ideals of justice and fairness. But it must not be the last. In the new year, lawmakers should act on the kinds of bipartisan sentencing reform measures already working their way through Congress. Together, we must ensure that our taxpayer dollars are spent wisely, and that our justice system keeps its basic promise of equal treatment for all.
December 13, 2013
Supreme Court to Hear Case on Proof Needed for Bank Fraud Conviction
The Supreme Court today granted certiorari in Loughrin v. United States
(No. 13-316), to decide whether the government must prove that the defendant intended to defraud a bank and expose it to risk of loss in every prosecution under 18 U.S.C. § 1344. For more on the case see this SCOTUSblog post
December 12, 2013
Supreme Court Permits Government's Use of Court-Ordered Psychological Exam to Rebut Evidence of Defendant's Mental State
Yesterday, the Supreme Court issued an opinion in Kansas v. Cheever
, holding that the Fifth Amendment does not prohibit the government from introducing evidence from a court-ordered mental evaluation of a criminal defendant to rebut that defendant’s presentation of expert testimony in support of a defense of voluntary intoxication. For more on the opinion see this SCOTUSblog post
December 06, 2013
Report Shows How Prosecutors Force Drug Defendants to Plead Guilty by Threatening Harsh Mandatory Sentences
Human Rights Watch has issued a 126-page report, An Offer You Can't Refuse: How US Federal Prosecutors Force Drug Defendants to Plead Guilty
. The report details how prosecutors throughout the United States extract guilty pleas from federal drug defendants by charging or threatening to charge them with offenses carrying harsh mandatory sentences and by seeking additional mandatory increases to those sentences.
November 27, 2013
Amendment to Fed. R. Crim. P. 11(b)(1) Implements Padilla Holding
Effective December 1, 2013, an amendment to Federal Rule of Criminal Procedure 11(b)(1) will require that, before accepting a plea of guilty or nolo contendere, the court advise the defendant, and ensure that he understands, that "if convicted, a defendant who is not a United States citizen may be removed from the United States, denied citzenship, and denied admission to the United States in the future." Fed. R. Crim. P. 11(b)(1)(O). See Amendments to the Federal Rules of Criminal Procedure
for more information.
October 22, 2013
Supreme Court to Address Application of Atkins v. Virginia, and Restitution for Mortgage Fraud
Yesterday, the Supreme Court granted cert in Hall v. Florida
(No. 12-10882) and Robers v. United States
(No. 12-9012). The question presented in Hall
is whether the Florida scheme for identifying mentally retarded defendants in capital cases violates Atkins v. Virginia
. In Robers
the Court will address whether a defendant – who has fraudulently obtained a loan and thus owes restitution for the loan under 18 U.S.C. § 3663A(b)(1)(B) – returns “any part” of the loan money by giving the lenders the collateral that secures the money. For more on these cases see this SCOTUSblog post
and this Sentencing Law & Policy post
October 15, 2013
Supreme Court Grants Cert in Straw Purchase of Firearm Case
The Supreme Court today granted certiorari in Abramski v. United States
(No. 12-1493) to decide (1) whether a gun buyer’s intent to sell a firearm to another lawful buyer in the future is a fact “material to the lawfulness of the sale” of the firearm under 18 U.S.C. § 922(a)(6); and (2) whether a gun buyer’s intent to sell a firearm to another lawful buyer in the future is a piece of information “required . . .to be kept” by a federally licensed firearm dealer under Section 924(a)(1)(A).
October 15, 2013
Policy Changes and Proposed Legislation Regarding Mandatory Minimums Promise Varying Degrees of Impact
In recent months, Attorney General Holder issued new policies
regarding the charging of mandatory minimums in drug trafficking cases, and also vowed to work with Congress to enact legislation reforming mandatory minimum statutes, specifically citing the “Justice Safety Valve Act” and the “Smarter Sentencing Act.” (For more on this legislation see our Sentencing Resource Page
). The Federal Public and Community Defenders used data from the Sentencing Commission to estimate the number of offenders who might benefit annually from the Holder Memo, the Justice Safety Valve Act, and the Smarter Sentencing Act. Key differences among the proposals are: 1) whether they apply to all mandatory penalties, or only those applicable to drug trafficking offenses; and 2) whether they also direct changes to the sentencing guidelines. See Summary of Impact Estimates
, Memo on Impact of the Holder Memo
, Memo on Justice Safety Valve Act
, and Memo on Smarter Sentencing Act
October 02, 2013
Supreme Court Opens Term with Two Cert Grants in Criminal Cases
Yesterday, the Supreme Court granted certiorari in two cases of interest to criminal defense practitioners: United States v. Castleman
(No. 12-1371) and Navarette v. California
(No. 12-9490). In Castleman
, the Court will address whether the respondent's conviction for misdemeanor domestic assault by intentionally or knowingly causing bodily injury to the mother of his child qualifies as a conviction for a "misdemeanor crime of domestic violence" under 18. U.S.C. § 922(b)(9). In Navarette
, the issue presented is whether police, after getting an anonymous tip about drunken or reckless driving, must actually observe that kind of misconduct before they may stop a vehicle.
August 12, 2013
BOP Issues New Program Statement on Compassionate Release/Reduction in Sentences
Today, BOP issued a program statement setting forth criteria to implement compassionate release/reduction in sentences under 18 USC 3582(c)(1)(A) and 4205(g)
for inmates with terminal and other serious medical conditions; inmates who are elderly; inmates with biological or adopted children whose primary caregiver has died or been incapacitated; and inmates whose spouse or registered partner has become incapacitated.
August 12, 2013
Attorney General Eric Holder Announces New Charging Policies on Mandatory Minimums
During his remarks at the August 12, 2013 Annual Meeting of the ABA's House of Delegates, Eric Holder announced new policies to limit the charging of mandatory minimums in drug cases
, including for prior convictions under 21 U.S.C. 851, to encourage prosecutors not to charge minor offenses federally, and to encourage prosecutors to move for variances when the guideline range exceeds a mandatory minimum. More on Eric Holder's speech
June 27, 2013
Supreme Court Grants Cert to Address Restitution in Child Porn Cases; Issues Opinion in Hobbs Act Case
Today, the Supreme Court granted certiorari in Paroline v. United States (No.12-8561), to address the following question:
What, if any, causal relationship or nexus between the defendant's conduct and the victim's harm or damages must the government or the victim establish in order to recover restitution in a child pornography case under 18 U.S.C. Sec. 2259?
The Court also granted certiorari in a death penalty case, White v. Woodall (No. 12-794), to review the Sixth Circuit's grant of habeas relief on the ground that the trial court's failure to provide a no adverse inference instruction at the sentencing phase of the trial violated the defendant's Fifth Amendment right against self-incrimination.
In addition, yesterday, the Court issued an opinion in Sekhar v. United States (No. 12-357), holding that attempting to compel a person to recommend that his employer approve an investment does not constitute "the obtaining of property from another" under the Hobbs Act. For more on the case, see this SCOTUSblog post.