Sentencing

Feds: Hey Second Circuit, could you issue a revised opinion in this drug sentencing case to make non-precedential a December opinion that found the federal controlled substances list was narrower than New York state's? We want you to make clear that the part that could help out future New York criminal defendants was dictum. Second Circuit: Dictum? We hardly know 'em! (Which is more substantive legal analysis than your bad-faith argument deserves.) We said what we said. And what we said is our holding.

Gov. Josh Shapiro said Thursday he will not allow Pennsylvania to execute any inmates while he is in office and called for the state’s lawmakers to repeal the death penalty (view full article).

Shapiro, inaugurated last month, said he will refuse to sign execution warrants and will use his power as governor to grant reprieves to any inmate whose execution is scheduled.

Florida man: requiring registration and reporting after completing my sentence of probation on a charge of lewd or lascivious conduct constitutes illegal custody. Files habeas. To seek a writ of habeas corpus, one must be "in custody," and that doesn't necessarily mean "physical custody" (per SCOTUS in 1963). Eleventh Circuit: Nevertheless, individuals subject to Florida's lifetime registration and reporting requirements for sex offenders are not in custody.

In Lackawanna County, Penn., if a court finds you can afford to pay child support but you didn't, you get a prison term and won't have access to work-release to earn money unless you spend the first half of the sentence doing "community service" at a private recycling center, for nearly no pay in unsanitary and dangerous conditions. Three people sued: This is a 13th Amendment and Fair Labor Standards Act violation. Third Circuit: That may sound like involuntary servitude, but it doesn't violate the Thirteenth Amendment.

In en banc news, the Ninth Circuit will not reconsider its opinion that "and" does not mean "or" in a case about the First Step Act of 2018. (view previous coverage)

The case is United States v. Lopez,  No. 19-50305 (9th Cir. Jan 27, 2023).

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.