Sentencing

The “safety valve” sentencing provision in  18 U.S.C. § 3553(f) allows a district court to sentence a defendant below the mandatory-minimum sentence for certain drug offenses if the defendant can show he or she doesn’t have all three conviction categories, together, that are listed in the statute, the Ninth Circuit held Friday in United States v. Lopez,  No. 19-50305 (9th Cir. May 21, 2021).

The First Step Act expanded this rule:

(1) the defendant does not have—

The United States Sentencing Commission is currently seeking comment on whether it should list certain 2024 amendments relating to acquitted conduct, firearms, and drug offenses as changes that may be applied retroactively to previously sentenced defendants.

The bipartisan United States Sentencing Commission voted unanimously today to prohibit conduct for which a person was acquitted in federal court from being used in calculating a sentence range under the federal guidelines (USSC press release available here).

“Not guilty means not guilty,” said Commission Chair Judge Carlton W. Reeves.

In three and a half years, President Biden has already installed more non-White federal judges than any president in history. His slate of judges is also majority female — another first (article available here).

Defendant: Look, sure, I was just convicted of drug trafficking, and, yes, I testified that I deposited all my legitimate income in the bank while I kept all my drug-trafficking money in cash, and, okay fine, you found a bunch of cash in my house near my drugs and my scale and my notebooks meticulously documenting my drug-trafficking transactions, but that doesn't prove the cash is the proceeds of drug trafficking. District court: You're kidding, right? Forfeiture on everything.

In the consolidated cases Brown v. United States, No. 22-6389 (May 23, 2024), and Jackson v. United States, No. 22-6640 (May 23, 2024), opinion here, the Supreme Court held that a state drug conviction counts as an ACCA predicate if it involved a drug on the federal schedules at the time of the state conviction.  The 6 to 3 opinion, written by Justice Alito, joined by the Chief Justice Roberts and Justices Thomas, Sotomayor, Kavanaugh, and Barrett, begins like this:

A first of its kind, the U.S. Attorney’s Office for the Western District of Wisconsin has charged a man for allegedly producing and possessing images of child pornography. The images at issue were generated entirely through artificial intelligence using the generative artificial intelligence model Stable Diffusion and created using text prompts describing the images to be generated. Images of children are not alleged to have been used in generating the images.

The presence of Black men serving as active judges on the federal appellate courts has stalled in the past 10 years, even as President Joe Biden has prioritized demographic diversity in his judicial nominations and almost doubled the number of Black women on the circuit courts (access full article).

Prosecutor in plea negotiations: We agree to recommend a sentence at the bottom of the guideline range. Prosecutor to district court: We recommend a sentence at the bottom of the guideline range for this top-of-the-food-chain drug dealer who is worse than a murderer. District court: Top of the guideline range it is.

In Smith v. Arizona, No. 22-889 (June 21, 2024), a unanimous Court held, when an expert conveys an absent analyst’s statements in support of the expert’s opinion, and the statements provide that support only if true, then the statements come into evidence for their truth, implicating the Sixth Amendments Confrontation Clause.