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.
June 25, 2013
Supreme Court Rules on SORNA Challenge Under Necessary and Proper Clause
Yesterday, the Supreme Court issued an opinion in United States v. Kebodeaux
(No. 12-418), holding that, as applied to respondent Anthony Kebodeaux, the registration requirements of the Sex Offender Registration and Notification Act fall within the scope of Congress’s authority under the Necessary and Proper Clause. For more on the case, see this SCOTUSblog analysis
, and this Volokh Conspiracy post
June 20, 2013
Supreme Court Rules in ACCA Case That Modified Categorical Approach Only Applies to Divisible Statutes with Alternative Elements
Today, the Supreme Court issued an opinion in Descamps v. United States, (No. 11-9540) holding that the "modified categorical approach" of determining whether a prior conviction under a state statute qualifies as a violent felony under ACCA does not apply to statutes that have only one set of indivisible elements.
In an 8-1 decision by Justice Kagan, with Justice Alito dissenting, the Court ruled that Descamps' conviction for California burglary under section 459 of the California Code does not qualify as a violent felony because the elements of the offense sweep more broadly than "generic" burglary, i.e., unlawfully entering a building, under ACCA. In fact, the state statute is so broad as to cover shoplifting. The Court declined to apply the modified categorical approach, which would have permitted the examination of the underlying records of conviction to determine whether Descamps had actually unlawfully entered a building. Instead, the Court held that the modified categorical approach applies only to divisible statutes that set forth alternative elements. Thus, whether Descamps admitted in his plea colloquy to breaking and entering was irrelevant because breaking and entering is not an element of section 459.
The Court reaffirmed the reasons for the elements approach set forth in Taylor: (1) it comports with the ACCA text and history; (2) it avoids Sixth Amendment concerns; and (3) it avoids the "practical difficulties and potential unfairness of a factual approach."
The Court left open whether a sentencing court may look to judicial rulings interpreting a statute to determine its elements. It also noted that the government forfeited the issue of whether California burglary qualifies as a violent felony under the residual clause.
Justice Thomas, concurred, reiterating his view that Almendarez-Torres, should be overruled.
For more on the opinion, see this SCOTUSblog post.
June 17, 2013
Supreme Court Overrules Harris v. United States
In Alleyne v. United States
(No. 11-9335), issued today, the Supreme Court overruled Harris v. United States
, to hold that any facts which increase a defendant's mandatory minimum sentence must be proved to a jury beyond a reasonable doubt.
The Court also issued an opinion in Salinas v. Texas
(No. 12-246), holding that it was permissible for the prosecution at trial to comment on the defendant's pre-arrest silence during questioning. Last week, the Court also handed down its opinion in United States v. Davila
(No. 12-167), holding that when a judge participates in plea negotiations, contrary to Federal Rule of Criminal Procedure 11(c), the defendant's guilty plea need not be vacated if there is no evidence of prejudice.
, a jury had convicted petitioner of using or carrying a firearm in relation to a crime of violence, 18 U.S.C. §924(c)(1)(A). Under the statute, the mandatory minimum of five years increases to seven if the firearm is "brandished." The jury indicated on the verdict form that Alleyne had used or carried a firearm, but did not indicate a finding that the firearm was "brandished." Notwithstanding the verdict form, and over Alleyne's objection, the district court determined the evidence did support a finding of brandishing, and, citing Harris
, imposed the mandatory minimum sentence of seven years. The Court of Appeals affirmed.
, the Court held that judicial factfinding that increases the mandatory minimum sentence for a crime is permissible under the Sixth Amendment, in contrast to factfinding that increases the statutory maximum. In overruling Harris
, the 5-4 Alleyne
majority found that the distinction between mandatory maximums and minimums is inconsistent with Apprendi v. New Jersey
and with the original meaning of the Sixth Amendment. Writing for the majority Justice Thomas concluded, "Any fact that, by law, increases the penalty for a crime is an 'element' that must be submitted to the jury and found beyond a reasonable doubt. Mandatory minimum sentences increase the penalty for a crime. It follows, then, that any fact that increases the mandatory minimum is an 'element' that must be submitted to the jury." The majority also made clear, however, that judges may still find uncharged facts by a preponderance when exercising broad discretion within a statutory range.
For more on Alleyne
see these SCOTUSblog posts: Analysis of Alleyne v. United States Analysis of Salinas v. Texas Analysis of United States v. Davila
June 10, 2013
Supreme Court Holds That Ex Post Facto Clause Applies to Advisory Guidelines
Today, the Supreme Court issued an opinion in Peugh v. United States
(No. 12-62), holding that there is an ex post facto violation when a defendant is sentenced under Guidelines promulgated after he committed his criminal acts and the new version provides a higher applicable Guidelines sentencing range than the version in place at the time of the offense. This is so, notwithstanding that the Guidelines are now advisory, because “[a] retrospective increase in the Guidelines range applicable to a defendant creates a sufficient risk of a higher sentence to constitute an ex post facto violation.” For more on the opinion see this SCOTUSblog post
June 03, 2013
Supreme Court Upholds Maryland Statute Permitting Routine Collection of DNA Samples from Arrestees
Today, the Supreme Court issued an opinion in Maryland v. King
(12-207), which addressed the constitutionality of the Maryland DNA Collection Act. The Court held: "DNA identification of arrestees is a reasonable search that can be considered part of a routine booking procedure. When officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment." For an analysis of the opinion, see this SCOTUSblog post
May 29, 2013
Supreme Court Grants Cert on Aiding/Abetting Use of a Firearm; Issues Opinions in Two Habeas Cases
Yesterday, the Supreme Court granted cert in Rosemond v. United States
(No. 12-895) to address the elements required to prove the offense of aiding and abetting the use of a firearm during and in relation to a crime of violence or drug trafficking crime. In addition, the Court issued opinions in Trevino v. Thaler
(No. 11-10189), allowing the petitioner's IAC claim to survive notwithstanding a procedural default, and McQuiggen v. Perkins
(No. 12-126), holding that an actual innocence claim can survive the expiration of AEDPA's statute of limitations.
, the Court will determine whether the offense of aiding and abetting the use of a firearm during and in relation to a crime of violence or drug trafficking crime, in violation of 18 U.S.C. §§ 924(c)(1)(A) and 2, requires proof of (i) intentional facilitation or encouragement of the use of the firearm, as held by the First, Second, Third, Fifth, Seventh, Eighth, Ninth, and Eleventh Circuits, or (ii) simple knowledge that the principal used a firearm during a crime of violence or drug trafficking crime in which the defendant also participated, as held by the Sixth, Tenth, and District of Columbia Circuits.
the Court held that when a state’s procedural framework, by reason of its design and operation, makes it highly unlikely in a typical case that a defendant will have a meaningful opportunity to raise on direct appeal a claim that his trial counsel provided ineffective assistance, the good cause exception recognized in Martinez v. Ryan
applies. '[A] procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.'" Whether raising such claims on direct appeal is explicitly barred, as in Martinez
, or implicitly barred, as in Trevino
, "[i]n both instances failure to consider a lawyer's 'ineffectiveness' during an initial-review collateral proceeding as a potential 'cause' for excusing a procedural default will deprive the defendant of any opportunity at all for review of an ineffective-assistance-of-trial-counsel claim." For an analysis of the opinion see this SCOTUSblog post
majority held that "actual innocence, if proved, serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar, as it was in [Schlup v. Delo
and House v. Bell
], or as in this case, expiration of the statute of limitations." The Court, however, also clarified that "[u]nexplained delay in presenting new evidence bears on the determination of whether the petitioner has made the requisite [miscarriage of justice] showing." In other words, "[u]ntimeliness, although not an unyielding ground for dismissal of a petition, does bear on the credibility of evidence proffered to show actual innocence." For more on the case, see this SCOTUSblog post
May 21, 2013
Supreme Court Grants Cert on Consent to Search Issue; Also Rules on Denial of Defense Claim
Yesterday, the Supreme Court granted cert in Fernandez v. California (No. 12-7822). The issue presented is whether, under Georgia v. Randolph, a defendant must be personally present and objecting when police officers ask a co-tenant for consent to conduct a warrantless search or whether a defendant’s previously stated objection, while physically present, to a warrantless search is a continuing assertion of 4th Amendment rights which cannot be overridden by a co-tenant.
The Court also issued an opinion in Metrish v. Lancaster (No. 12-547), holding that because the Michigan Court of Appeals did not unreasonably apply clearly established federal law when it retroactively applied a decision of the Michigan Supreme Court rejecting the diminished-capacity defense to petitioner, he was not entitled to habeas relief. For more on the opinion, see this SCOTUSblog post.
April 29, 2013
Supreme Court to Determine Whether Distribution of Drugs Causing Death Is a Strict Liability Crime
Today, the Supreme Court granted certiorari in Burrage v. United States
(No. 12-7515). The questions presented are:
1. Whether the crime of distribution of drugs causing death under 21 U.S.C. § 841 is a strict liability crime, without a foreseeability or proximate cause requirement.
2. Whether a person can be convicted for distribution of heroin causing death utilizing jury instructions which allow a conviction when the heroin that was distributed “contributed to, ” death by “mixed drug intoxication,” but was not the sole cause of death of a person.
The Court also dismissed Boyer v. Louisiana
as improvidently granted. The Court had granted cert on the question whether "a state’s failure to fund counsel for an indigent defendant for five years, particularly where failure was the direct result of the prosecution’s choice to seek the death penalty, should be weighed against the state for speedy trial purposes."
April 23, 2013
Supreme Court Holds That Minor Marijuana Offense Is Not an Aggravated Felony Under INA
In Moncrieffe v. Holder (No. 11-702) the Supreme Court held today that a state conviction for possession with intent to distribute (for no remuneration) a small amount of marijuana does not constitute “illicit trafficking in a controlled substance” under section 1101(a)(43) of the Immigration and Nationality Act, and is thus not an aggravated felony subjecting a noncitizen to mandatory deportation and ineligibility for certain forms of discretionary relief.
Adrian Moncrieffe possessed 1.3 grams of marijuana, which was accepted as a "small amount." The Court applied the categorical approach, and concluded:
This is the third time in seven years that we have considered whether the Government has properly characterized a low-level drug offense as "illicit trafficking in a controlled substance," and thus an "aggravated felony." Once again we hold that the Government’s approach defies "the 'commonsense conception' of these terms." Carachuri-Rosendo, 560 U. S., at ___ (slip op., at 9) (quoting Lopez, 549 U. S., at 53). Sharing a small amount of marijuana for no remuneration, let alone possession with intent to do so, "does not fit easily into the ‘everyday understanding''' of "trafficking," which “‘ordinarily . . . means some sort of commercial dealing.’” Carachuri-Rosendo, 560 U. S., at ___ (slip op., at 9) (quoting Lopez, 549 U. S., at 53–54). Nor is it sensible that a state statute that criminalizes conduct that the CSA treats as a misdemeanor should be designated an "aggravated felony." We hold that it may not be. If a noncitizen’s conviction for a marijuana distribution offense fails to establish that the offense involved either remuneration or more than a small amount of marijuana, the conviction is not for an aggravated felony under the INA.
April 23, 2013
Sentencing Resource Counsel Rebut Sentencing Commission's Booker Report
In December 2012 the Commission issued its Report on the Continuing Impact of United States v. Booker on Federal Sentencing
. In the following articles and fact sheets, Sentencing Resource Counsel have rebutted various claims made in the Commission's Report:
For more on the Commission's legislative efforts, see our Important Legislative Developments in Sentencing