Sentencing

Ecuadoran national challenges his conviction for illegal reentry into the United States on the grounds that his initial removal was unlawful and the prohibition on reentry was enacted for super racist reasons. Second Circuit: His initial removal was lawful. And though the law's legislative history contains some shocking comments—heck, one legislator observed in 1952, "though I am not a follower of Hitler . . . there is something to it"—those views can't be attributed to all of Congress.

Leslie E. Scott has been selected to serve as the National Sentencing Resource Counsel’s new Director. Scott joined SRC in 2022. Prior to joining SRC, Scott worked in academia as an associate professor at the University of Detroit, Mercy School of Law. Scott also served our community as an assistant federal defender in the Western District of New York and a law clerk in the U.S. District Court for the Eastern District of Michigan and the D.C. Court of Appeals. Scott is an alumnus of the American University, Washington College of Law, and the University of Michigan.

Of the 64,124 cases reported to the United States Sentencing Commission in fiscal year 2023, 21,504 involved non-U.S. citizens. Non-U.S. citizens accounted for 33.7% of all individuals sentenced in fiscal year 2023.

This Government Accountability Office report provides publicly available information on incarcerations of non-citizens in the U.S., not just federal facilities.

Today, the Supreme Court agreed to hear another Texas death row inmate’s case challenging the state’s DNA testing statute as unconstitutional.  Gutierrez v. Saenz, No. 23-7809 (Oct. 4, 2024) (cert. granted).

Today, the Supreme Court granted review in Esteras v. United States, in which the justices will address a circuit split over what factors judges can consider when sentencing a person for violating conditions of supervised release and if a court may consider factors that the supervised release law, 18 U.S.C. § 3583(e), does not mention.

Federal law prohibits entering "a restricted building or grounds," a term that is defined to include any restricted area "where the President or other person protected by the Secret Service is or will be temporarily visiting." January 6 protestor convicted under the law argues the gov't was required to show not only that he knew the area was restricted, but that he knew it was restricted because VP Mike Pence was there. D.C. Circuit: Everything points to knowingly trespassing being enough.

The new Amendments to the United States Sentencing Guidelines take effect tomorrow, November 1, 2024.  The 2024 Guidelines Manual Annotated, available here, offers quick integrated access to guidelines history and reasons for amendments.

Here are some of the important changes in the 2024 manual:

Following up on the Supreme Court's Padilla v. Kentucky holding that non-citizen criminal defendants must be advised of any risk of deportation associated with a guilty plea, En banc Second Circuit: If a guilty plea could lead to denaturalization and deportation, lawyers must advise their clients of that fact or they're giving unconstitutionally ineffective counsel.

In 2022, a district judge finds Hinds County, Miss. officials in contempt of a federal consent decree after monitors report that a portion of its jail is essentially run by gangs. About 30 cells are used as dumpsters. Lights don't work. The majority of cell doors do not lock. Inmates regularly escape through the roof and return with contraband. Disliked inmates are assaulted, not allowed to eat. (Two such inmates are discovered emaciated and covered in feces and sores.) Hinds County: The real "constitutional abomination" here is the consent decree, which is the cause of all these problems.

It's been said that "we are all textualists now." But how should the court interpret the text of the U.S. Sentencing Guidelines Manual after it has "exhausted all sources from which interpretive guidance may be derived," is "convinced that the parties' respective interpretations are in equipoise," and fears that "by accepting either side's interpretation, [it] would be hazarding a mere 'guess as to what [the Sentencing Commission] intended'"? Probation Office: group the counts and sentence.