Each year, in a cycle running from October to June, the U.S. Supreme Court hears and decides about 70 criminal and civil cases. Its opinions on these important cases clarify, change, limit, or enhance existing laws and constitutional rights. Sometimes, these appeals include legal challenges to sentencing laws, including mandatory minimums. Occasionally, FAMM will get involved in one of these appeals by working with outside lawyers to prepare and file a “friend of the court” (amicus) brief. The Supreme Court reads our brief when deciding the case and sometimes even cites it in the opinion!
FAMM does not provide legal advice or representation to people going through the criminal justice system or trying to get out of prison sooner. Defendants and prisoners should speak with a federal or state public defender or a private criminal defense attorney if they need legal help or think that filing an appeal in the U.S. Supreme Court may benefit them.
Pending Federal Court Cases
FAMM is supporting a prisoner’s federal court case challenging the Bureau of Prisons’ decision to deny him compassionate release. The case is Avery v. Andrews (No. 18-6996) in the Fourth Circuit Court of Appeals.
Update (Jan. 24, 2019): Mr. Avery’s lawyer, Steve Sady of the Oregon Federal Public Defenders, argued Mr. Avery’s case before a three-judge panel of the Fourth Circuit Court of Appeals on December 12, 2018. Mr. Sady explained that the BOP has failed to file a motion with the sentencing court for Mr. Avery’s compassionate release even though the BOP has said that Mr. Avery meets the criteria for release, as he is terminally ill and not expected to live very long. He argued that it is up to the sentencing court to determine whether a person deserves compassionate release. The BOP’s job is limited only to making a compassionate release motion to the court once it determines a prisoner meets compassionate release criteria.
The BOP lawyer argued that Congress gave the BOP sole authority to ask the court to reduce a sentence.
Before the Fourth Circuit had a chance to rule on the appeal, Congress passed the First Step Act. The First Step Act provides prisoners a way to file a motion directly with the sentencing court after the BOP denies or ignores their request for compassionate release.
On December 26, 2018, Mr. Avery asked the Fourth Circuit to dismiss his appeal so that he could file a compassionate release motion directly with the sentencing court. He explained that the First Step Act had made the appeal unnecessary, and on January 4, the Fourth Circuit dismissed the appeal.
Mr. Avery has now filed a motion in the district court in Oregon for compassionate release. We will keep you posted on developments.
FAMM filed an amicus brief in a prisoner’s appeal of a district court’s denial of his federal habeas corpus petition. The petition challenged the Bureau of Prisons’ refusal to file a compassionate release motion. The case is Salvagno v. Director, Federal Bureau of Prisons, No. 17-3997 (U.S. Court of Appeals for the Second Circuit).
Mr. Salvagno is a federal prisoner whose wife died unexpectedly in late 2014, leaving their three minor children without a parent. After her death, the children were separated. Two were sent to relatives initially, and the eldest, Alex, was taken into foster care when no family member offered him a home. Alex suffers from debilitating medical and developmental conditions that require round-the-clock medical and personal care. Before he went to prison, Mr. Salvagno and his wife took care of all Alex’s needs.
Mr. Salvagno wrote to the warden in March 2015 asking for compassionate release. He qualified for release because he is the only family member capable of caring for his children – especially Alex. The warden supported his request, but the Central Office of the Bureau of Prisons denied it at the end of 2016. The denial said that Mr. Salvagno did meet the BOP’s criteria based on his children’s need for his care, but further stated that the BOP would not ask the court to release him. The denial cited Mr. Salvagno’s crime of conviction – a nonviolent offense involving asbestos abatement fraud – as the reason to keep him in prison.
Mr. Salvagno filed a habeas corpus motion in district court arguing that Congress had intended the court and not the BOP to decide which eligible prisoners deserve compassionate release. The district court denied the motion, saying it lacked authority to grant it.
In his appeal to the Second Circuit, Mr. Salvagno argued that the district court does have the authority to review the BOP’s denial of compassionate release., While the BOP can identify individuals who meet criteria for compassionate release, he argued, the district court is the final decision maker. The district court failed its duty when it failed to review the BOP’s decision not to seek compassionate release.
FAMM filed an amicus brief supporting Mr. Salvagno. The brief describes the law that governs compassionate release and the roles Congress assigned to: the U.S. Sentencing Commission (to define compassionate release criteria); the BOP (to identify prisoners who meet the criteria); and the court (to consider the motion in light of the individual circumstances of the prisoner and the offense, and grant or deny the motion). We argue that when the BOP refuses to file a compassionate release motion, it is making a decision Congress intended the court to make.
We are grateful to Peter Goldberger for authoring the brief. We were happy to be joined on the brief by the Washington Lawyers’ Committee for Civil Rights and Urban Affairs, the National Association of Criminal Defense Lawyers, the Center on the Administration of Criminal Law, Professor Brett Dignam of Columbia Law School, and Professor Emeritus Dennis E. Curtis of Yale Law School.
When Congress adopted the 15-year mandatory minimum to punish those convicted of producing child pornography and the five-year mandatory minimum for distributing it, lawmakers were not concerned about defendants like Yehudi Manzano. Mr. Manzano, then 31,was involved in a consensual, if illegal, relationship with a 15-year-old, when he used his cell phone to video the couple in bed. He deleted the video from his phone but not before it was backed up to the cloud, where it remained. The government charged Mr. Manzano with producing and distributing child pornography. It did so not because he posed a threat to children and the community, but simply because it could.
Before the trial began, Mr. Manzano’s defense counsel asked that the jury be instructed about the mandatory minimum. The judge declined to include that instruction, but he did not rule out the possibility that the defense counsel might be able to discuss the mandatory minimum during the trial and argue for “jury nullification.” At that, the prosecution asked the proceedings to be stopped and sought an order from the Court of Appeals to forbid the trial court from allowing testimony about the mandatory minimum or allowing defense counsel to argue for jury nullification.
Jury nullification, or “conscientious acquittal,” is the power of the jury to acquit a defendant, even if the defendant is considered to be guilty beyond a reasonable doubt, when a conviction would result in a manifest injustice. To do so, the jury has to understand the consequences of a conviction. But juries are generally not instructed about sentences that defendants face because juries instead are instructed to decide whether someone is guilty based only on the evidence of guilt.
FAMM has joined the Cato Institute and NACDL in an amicus brief in Manzano opposing the government’s effort to prevent the judge from considering whether to allow information about mandatory minimums or arguments to the jury based on them. Our brief discusses the long legal tradition that ensures the jury is a check on the government’s abuse of power. That tradition has included the power of a jury to find a defendant not guilty to prevent an extremely unjust sentence.
The government routinely uses the threat of mandatory minimums and mandatory minimums themselves to control sentencing. Judges cannot change a mandatory minimum sentence, no matter how unjust. The only check on this kind of the abuse of power is an informed jury.
The case is In Re Manzano, No. 18-3430 (2d Circuit). Read FAMM’s amicus brief here.
FAMM is grateful to Jay Schweikert of the Cato Institute for representing us in this case.
Decision: The Supreme Court found that the five-year mandatory minimum imposed on an individual originally convicted of a child pornography offense who the judge found later violated the terms of his supervised release by possessing child pornography violated the defendant’s Fifth and Sixth Amendment rights. The court announced the decision on June 26, and vacated the judgment, sending the case back to the lower courts to decide the appropriate remedy. The opinion was authored by Justice Gorsuch, who opened it stating, “[o]nly a jury, acting on proof beyond a reasonable doubt, may take a person’s liberty.”
Most people convicted of federal crimes and sentenced to prison are also sentenced to a term of supervision that begins when they finish their prison sentence. That part of the sentence is called “supervised release.” The individual on supervision must comply with certain court-imposed conditions. Probation officers who work for the federal courts keep track of former prisoners and whether they are following the supervised release rules. Generally, courts have the discretion to sanction people who violate supervised release, including by sending them back to prison. The amount of time that a person can be sent back to prison is usually limited based on the original offense for which they are serving supervised release. The court can return a person to prison if it finds by a “preponderance of the evidence” (more likely than not) that supervised release was violated. This standard is lower than that required to convict a person of a crime, which is the standard of “guilt beyond a reasonable doubt.” Guilt beyond a reasonable doubt is determined by a jury or by the defendant’s guilty plea.
In 2006, Congress changed supervised release penalties for certain offenders who are required to register as sex offenders. Under the 2006 law, a judge is required to impose a five-year mandatory minimum sentence and as much as life in prison if the judge finds by a preponderance of the evidence that the individual committed a “second sex offense.”
Mr. Haymond was convicted by a jury when he was 18 for possessing nine “thumbnail” illicit images of minors among the 60,000 images of heavy metal music and gaming on his computer. He was sentenced to 38 months in prison.
After Mr. Haymond left prison, the probation officer supervising him reviewed his smartphone and found it contained a few thumbnail images of child pornography.
Mr. Haymond was charged with violating the terms of his supervised release. The court held a hearing and found by a preponderance that Mr. Haymond had downloaded and possessed the images. The court reluctantly sentenced him to the five-year mandatory minimum but stated that it was “repugnant” to have to do so, given that Mr. Haymond had no opportunity to ask for a jury trial or demand that the facts that would send him to prison be proved beyond a reasonable doubt. Had Mr. Haymond been sentenced for a supervised release violation without the mandatory minimum, he could have received no more than two years imprisonment.
The Tenth Circuit Court of Appeals vacated the five-year sentence and said the statute requiring a sentence of five years to life for a supervised release violation was unconstitutional for two reasons. First, it removes the discretion that judges should use to impose a sentence within the range established by the original crime, which has a 10-year maximum sentence. Second, the supervised release statute punishes defendants based not on their original offense but based on a new offense for which they have not been convicted by a jury beyond a reasonable doubt.
Justice Gorsuch’s opinion relied heavily on the Framers’ view of a defendant’s right to a jury trial. He also based his decision on the more recent line of cases emerging with Apprendi v. New Jersey (Judges may not find facts and use them to increase a sentence beyond the maximum sentence authorized by the criminal statute unless those facts are found beyond a reasonable doubt by the jury.) and including Alleyne v. United States, which extended Apprendi to mandatory minimums. As in Alleyne, the five-year mandatory minimum to which Mr. Haymond was sentenced was based on facts found by the judge at sentencing absent a finding by the jury beyond a reasonable doubt.
Most people convicted of federal crimes and sentenced to prison are also sentenced to a term of supervision that begins when they finish their prison sentence. That part of the sentence is called “supervised release.” The individual has to follow supervised release conditions. Probation officers who work for the federal courts keep track of former prisoners and whether they are following the supervised release rules. Generally, courts have the discretion to sanction people who violate the terms of their supervised release, including by sending them back to prison. The amount of time that a person can be sent back to prison is usually capped based on the original offense for which they are serving supervised release. The court can return a person to prison if it finds by a preponderance of the evidence that supervised release was violated. This is a lower standard than that required to convict a person of a crime, which is the standard of “guilt beyond a reasonable doubt.”
In 2006, Congress changed supervised release penalties for certain offenders who are required to register as sex offenders. A judge is required to impose a five-year mandatory minimum sentence if the judge finds by a preponderance of the evidence that the individual committed a “second sex offense.”
Mr. Haymond was convicted by a jury when he was 18 for possessing nine thumbnail illicit images of minors among the 60,000 images of heavy metal music and gaming on his computer. He was sentenced to 38 months in prison.
After Mr. Haymond left prison he resumed his gaming activity. The probation officer supervising Mr. Haymond reviewed his electronics, including his smartphone, and found it contained thousands of gaming images and a few thumbnail images of child pornography. Like the images that he had served time for, the illicit images were located in a place that he could not and had not accessed.
Nonetheless, he was charged with violating the terms of his supervised release. The court held a hearing and found by a preponderance that Mr. Haymond had downloaded and possessed the images. The court reluctantly sentenced him to the five-year mandatory minimum but stated that it was “repugnant” to have to do so, given that Mr. Haymond had no opportunity to ask for a jury trial or demand that the facts that would send him to prison be proved beyond a reasonable doubt. Had Mr. Haymond been sentenced for a supervised release violation without the mandatory minimum, he could have received no more than two years imprisonment.
The Tenth Circuit Court of Appeals vacated the five-year sentence and said the statute requiring a sentence of five years to life for a supervised release violation was unconstitutional for two reasons. First, it removes discretion that judges should use to impose a sentence within the range established by the original crime, which has a ten-year maximum sentence. Second, the supervised release statute punishes defendants based not on their original offense but based on a new offense for which they have not been convicted by a jury beyond a reasonable doubt.
The government appealed, and the Supreme Court will decide whether the statute that would allow a prisoner to be returned to prison for a minimum of five years and as long as life violates the constitution. The case is United States v. Haymond, No. 17-1672.
We think it does and will argue that position in an amicus brief in the case to be filed on January 25.
You can read all about the case and find the briefs here.
The Supreme Court found the residual clause in 18 U.S.C. sec. 924(c) unconstitutionally vague announcing its decision in United States v. Davis on the last Monday of the term. (FAMM had participated in the case with an amicus (friend-of-the-court) brief.) Justice Gorsuch wrote the opinion for the 5-4 majority. He opened it by stating that “[i]n our constitutional order, a vague law is no law at all. . . . When Congress passes a vague law, the role of courts under our Constitution is not to fashion a new, clearer law to take its place, but to treat the law as a nullity and invite Congress to try again.”
18 U.S.C. sec. 924(c) forbids the use of a firearm in furtherance of a crime of violence. It defines crime of violence in two ways. One way is the “elements” clause, and the other is the “residual clause.” (This decision does not affect drug offenders under 924(c)).
Over the last few years, the Supreme Court has considered various laws that define “violent felony” and “crime of violence.” Some definitions of those kinds of crimes are clear, such as when a law lists the elements (things that need to be proved to the jury) or names the crimes. Others are not.
In recent years, the Supreme Court has been cutting out unclear definitions of those terms from laws, such as the Armed Career Criminal Act (ACCA). ACCA requires a judge to impose a 15-year mandatory minimum sentence for an individual who is a felon in possession of a firearm and who has been convicted of three prior violent felonies. In Johnson v. United States, the Court struck down part of ACCA because one of its definitions of violent felony, the residual clause, was too vague. It left other parts of ACCA’s definition of violent felony alone.
Another decision, Sessions v. Dimaya, relied on Johnson to strike down as unconstitutional the residual clause in the federal law 18 U.S.C. sec. 6(b) defining “crime of violence.”
United States v. Davis is another residual clause case. Davis involves the residual clause in 18 U.S.C. sec. 924(c). The residual clause in 18 U.S.C. sec. 924(c) is identical to the residual clause the Supreme Court eliminated in Dimaya.
In evaluating whether a crime is a crime of violence or a violent felony under the residual clause, the Court has used the “categorical approach.” The categorical approach asks what the crime’s “ordinary case” is (requiring the court to ask what usually happens when the crime at issue is committed) and if that ordinary case presents a substantial risk of the use of force. The Supreme Court used the categorical approach when it decided that the residual clauses in ACCA and the crime of violence definition were unconstitutionally vague and had to be removed from the law.
In Davis, the government conceded that the 924(c) residual clause would be unconstitutional if the court used the categorical approach. So it asked the Court to abandon that tool and instead look at what the defendant actually did. If the conduct the defendant engaged in presented a serious potential risk of physical injury, the defendant would be deemed to have committed a crime of violence. If, instead, the Court maintained the categorical approach, then the residual clause in 924(c) was certainly doomed.
In Davis, the majority rejected the actual conduct approach and ruled the residual clause of 18 U.S.C. sec. 924 (c) unconstitutional.
Section 924(c) is not entirely unconstitutional. Drug-associated 924(c) offenses are not affected by this decision. So a person can still be convicted of and sentenced for using, possessing or carrying a firearm in connection with a drug trafficking offense.
And, for violent offenses, there is still the “elements” clause. People can still be convicted of and sentenced for a 924(c) offense, if they were found to have committed a crime of violence that “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.”
We don’t know for sure but we expect that Davis will apply “retroactively,” so that prisoners sentenced under 18 U.S.C. sec. 924(c) for a crime that was considered a crime of violence based on the statute’s residual clause would be able to apply for relief.
If you think your case falls into this category, we encourage you to contact your criminal defense attorney or the Federal Public Defender in your sentencing district.
The U.S. Supreme Court announced two decisions on Monday, June 4, in cases of interest to FAMM members. Both decisions are about whether retroactive guideline reductions can be applied to certain kinds of cases.
In Koons v. U.S. (No. 17-5716), the Court ruled unanimously that prisoners who: 1. were convicted of a drug offense that carried a mandatory minimum sentence; 2. provided substantial assistance to the government; and 3. earned a sentence below the mandatory minimum because they cooperated are not able to benefit from retroactive guideline changes.
The Court explained that retroactive guideline reductions can only be used when the sentence in the case was “based on” the federal Sentencing Guidelines. When an individual is convicted of a crime carrying a mandatory minimum, even though the sentencing court has to calculate the sentence under the guidelines, the court bases the substantial assistance departure on the mandatory minimum. This is true even though the substantial assistance departure can lower the sentence below the mandatory minimum.
If the guideline is lowered and that change is made retroactive, the court may not reduce the prisoner’s sentence using the new, lower guideline, because the sentence is based on the mandatory minimum, not the old guideline.
In Hughes v. U.S. (No 17-155), the Court ruled 7 to 2 that prisoners who: 1. pled guilty to a drug offense, and 2. entered into a plea agreement under Rule 11 (c) (1) (C) (which means if the sentencing court accepts the agreement, the court is required to impose the agreed-upon sentence) are for the most part able to benefit from retroactive guideline changes.
The Court explained that this is due to the fact that in considering a Rule 11 (c)(1)(C) plea agreement, the sentencing court has to: 1. calculate the guideline range, and 2. evaluate whether to accept the plea agreement in light of that guideline range.
Thus, generally a plea agreement is “based on” the guidelines. Retroactive guideline changes can be applied in cases that were based on the guidelines. The only time this would not apply is if it was clear from the record that the court would impose the same sentence regardless of the guideline change.
You can read more about the Hughes case, including briefs and transcripts by visiting the Hughes page on Scotusblog.
As always, if you have questions about whether someone you know might benefit from Hughes, we encourage them to contact their criminal defense lawyer.
The Supreme Court ruled 7-2 on June 18, 2018 that an error in calculating the sentencing guidelines is an error that must be addressed by resentencing the defendant, even if no one noticed the error when it occurred. The court must correct the mistake, even if the sentence imposed falls within the correct guideline range.
FAMM had joined two criminal defense organizations in an “amicus” a/k/a “friend of the court” brief in the case, Rosales-Mireles v. United States, No. 16-9493.
The case involves a somewhat complicated issue about when an appeals court should reverse a sentence for what is called “plain error.” Plain error is one that nobody noticed when it happened. Normally, problems and errors in court are identified and pointed out when they occur. Those kinds of errors can be addressed in an appeal. But when there is a mistake that was not pointed out when it occurred, the Appeals Court cannot correct it unless it passes the plain error test. The Supreme Court has told appellate courts to correct those errors that affect substantial rights if the error “seriously affects the fairness, integrity, or public perception of judicial proceedings.”
Mr. Rosales-Mireles was erroneously sentenced under the wrong guideline range of 77-96 months to 78 months. The correctly calculated guideline range was 70 – 87 months. No one noticed the mistake at the time.
In this case, the Fifth Circuit Court of Appeals to which Mr. Rosales-Mireles appealed, added more conditions to the plain error test. This meant that Appeals Court could not correct plain error, even if it met the Supreme Court test, unless the court also found that the error resulted in an outcome that would, among other things “shock the conscience of the common man.”
On appeal, the government agreed that an error had been made but said a mistake of a few months was not a big deal. The Fifth Circuit agreed a mistake had been made but refused to send the case back to the court to resentence him using the correct guideline because the error did not shock the conscience.
FAMM, the National Association of Criminal Defense Lawyers and the National Association of Federal Defenders joined together to explain that even small amounts of time wrongfully spent in prison have meaning and that “any error which produces a longer prison sentence has constitutional significance,” among other things.
Because of the Guidelines’ technical nature, it is easy to lose sight of the human consequences of a Guidelines error. Even a seemingly minor error that produces only a few months of additional incarceration can have a profound impact on a prisoner’s family ties, medical treatment, and overall reintegration into society.
Our brief told the stories of three FAMM members, who graciously shared their stories with us. With their help, we were able to put a human face on what a few weeks or months in or out of prison can mean. In those short periods of time, life happens. Babies are born, parents die, daughters walk down the aisle — moments that can’t be recaptured.
The case was argued before the Supreme Court on February 21, 2018.
The opinion, written by Justice Sonia Sotomayor, and joined by all but Justices Clarence Thomas and Samuel Alito, rejected the “shock the conscience standard.” Federal sentencing law requires that a sentence be “sufficient, but not greater than necessary” to achieve the goals of sentencing. Using a sentencing guideline range that is too high, the Court said, creates a danger that the sentence will be “greater than necessary.” Keeping people in prison longer than necessary in turn threatens the “fairness, integrity, or public reputation of the judicial proceeding.”
We are pleased with this outcome and most grateful to the individuals who allowed their stories to be told.
FAMM filed an amicus brief in a case that calls on the 11th Circuit Court of Appeals to invalidate the residual clause in 18 U.S.C. § 924(c) following the U.S. Supreme Court’s decision in Sessions v. Dimaya, 138 S. Ct. 1204 (2018). The case is called Ovalles v. U.S., No. 17-10172. You can read our amicus brief here.
A three-judge panel of the 11th Circuit had initially ruled against petitioner Irma Ovalles. But, following Dimaya, the full 11th Circuit has agreed to rehear the case.
Section 924(c) provides for harsh mandatory minimum sentences for individuals who carry, display, or use a firearm while committing a drug trafficking offense or crime of violence.
The issue is only about the crime of violence definition.
The full 11th Circuit asked the parties to brief two issues. The first is whether the residual clause in 18 U.S.C. § 924(c) is unconstitutionally vague (in light of its similarity to the residual clause struck down by the Supreme Court in Dimaya).
The second issue is about how a court decides whether the underlying crime is a crime of violence.
Right now, the 11th Circuit requires that courts decide whether the underlying offense was a crime of violence only by looking at the elements of the underlying offense. That means that the court looks only at the legal definition of the crime. If the legal definition requires the prosecution to prove beyond a reasonable doubt that the defendant used, attempted to use, or threatened to use physical force against someone or their property, then the offense is a crime of violence. If it does not, then the offense is not a crime of violence and the person cannot be convicted of violating 18 U.S.C. § 924(c). The court is not supposed to look at other things, such as evidence of the defendant’s actual conduct.
But, the full 11th Circuit asked the parties to discuss whether the categorical rule should be scrapped and courts allowed to examine actual conduct or other evidence to decide whether the underlying offense is a crime of violence.
Our amicus brief says “NO.” We explain that the categorical approach is consistent with federal law and U.S. Supreme Court rulings; it is the best way to protect defendants from being punished for a crime they did not commit, and is the most commonsense approach because the court and the defendant would know from the outset that the indictment describes a crime of violence. If the categorical approach were scrapped, the jury would have to determine not only whether the defendant committed the crime but also whether they used or attempted or threatened force when doing so. This would make trials and plea negotiations longer and more complicated.
We are grateful to attorney Aaron Katz and a team of lawyers at Ropes & Gray for representing FAMM and the National Association of Criminal Defense Lawyers in this case.
Ovalles will be argued in Atlanta on July 9. We will report any developments to you and of course let you know what the court decides when it rules.
A unanimous U.S. Supreme Court issued a decision allowing judges more freedom when deciding prison sentences. FAMM had shared its analysis of the legal and policy issues at stake in the form of a friend-of-the-court brief, and we were pleased that the Court agreed with so many of our arguments. (The Hill newspaper published a concise overview of today’s decision and included our happy reaction!)
With the exception of mandatory minimums, federal law requires judges to exercise discretion at sentencing to ensure that justice is done in individual cases. Dean v. United States is just the latest in a long string of Supreme Court cases affirming the necessity of judicial discretion. Today the Court underlined its commitment to protecting it, ruling that courts may take into account the length of a mandatory minimum sentence when deciding how much additional time to impose on other counts of conviction. Mary Price, general counsel of FAMM which co-authored an amicus brief in the case, remarked,
“This opinion is notable for its unanimity, swiftness, and ringing endorsement of the abiding role of judicial discretion. FAMM was pleased to participate in this important case to underscore that judicial discretion is the law of the land.”
FAMM is grateful to lawyers Craig D. Singer, Amy Mason Saharia, and Chanakya A. Sethi, of Williams & Connolly LLP, who represented FAMM and the National Association of Criminal Defense Lawyers in drafting and submitting our amicus brief to the court.
On June 26, 2015, the Supreme Court ruled that the so-called “residual clause” of the Armed Career Criminal Act (ACCA) is so vague that it is unconstitutional.
An important note: We’ve heard from many prisoners and their family members who think this decision might help those sentenced as “Career Offenders.” The Armed Career Criminal Act is not the same as the Career Offender guideline. This decision does not affect Career Offender sentences.
A. What is an Armed Career Criminal?
A person is sentenced as an Armed Career Criminal to a 15-year mandatory minimum sentence (18 U.S.C. sec. 924(e)) if he is
- convicted of being a “felon in possession” of a firearm or ammunition (18 U.S.C. sec. 922(g); AND
- has three prior “serious drug” or “violent felony” convictions.
B. What is a violent felony?
Johnson had to do with the prior violent felonies requirement. The ACCA statute tells the court to count any prior conviction as a “violent felony” if it
- has the use of physical force as an “element” of the offense; or
- is “burglary, arson, or extortion;” or
- “involves the use of explosives;” or
- “otherwise involves conduct that presents a serious potential risk of physical injury to another.”
C. What did the Supreme Court do?
The Constitution requires criminal offenses to be clearly defined so that people know when they are breaking the law. Number 4 in the list above is the “residual clause” and the Supreme Court struck it down as too vague. The rest of the statute and the other definitions of “violent felony” remain in force.
This means that that only prior felony convictions that
- include the use of physical force in the definition of the offense; or
- are burglary, arson, or extortion; or
- involve the use of explosives
can be counted toward the three prior felonies needed to trigger the 15-year mandatory minimum sentence. Without three prior serious drug or violent felony offenses, a person convicted of being a felon in possession of a firearm or ammunition cannot receive a sentence greater than ten years.
In short: Courts can no longer use the residual clause to determine if a person has a prior violent felony for ACCA purposes.
D. Who is affected by this decision?
This decision applies to
- People who have not been convicted and/or sentenced.
- People who have been sentenced as an Armed Career Criminal but whose direct appeal is still pending and for whom at least one of the three prior offenses that were used to enhance the sentence to 15 years was based on the residual clause.
It might also apply retroactively. The Supreme Court did not declare the decision retroactive. We urge prisoners sentenced under ACCA with prior offenses that were established using the residual clause to contact their lawyers or federal public defenders to find out about obtaining relief.
Unfortunately, FAMM cannot provide legal advice or representation or tell prisoners or their loved ones whether they are entitled to relief under Johnson. We will keep you posted on developments in this area of litigation.
On July 26, 2013, FAMM filed an amicus (“friend of the court”) brief in a case that involves death by overdose, a harsh mandatory minimum, and the thin line that separates guilt and innocence.
Burrage v. United States (12-7515), involves a provision of the much-used statute criminalizing controlled substances, 21 U.S.C. § 841. Most readers are aware of its five- and ten-year mandatory minimum sentences for manufacturing or distributing drugs. Less well known are the harsh 20-year and life sentences if “death or serious bodily injury results from the use of” the drugs the defendant provided.
Burrage had provided a small amount of heroin to a man who later died after bingeing on a large combination of drugs. He was charged with distributing drugs that, when used, resulted in death.
At trial, the issue was whether the death “resulted from” the injection of the heroin. Two doctors for the prosecution testified that while the heroin contributed to the death, it did not “cause” the death. This was because there were a number of drugs in his system and they could not say that but for the heroin the death would not have occurred. Defense counsel argued that the jury be instructed to find Burrage guilty only if the government had proved the heroin was the actual, or substantial cause of death. The government successfully convinced the trial court to instruct the jurors that it was enough to prove guilt beyond a reasonable doubt if the defendant provided the heroin and the heroin merely “played a part” in the mixed-drug overdose death. The jury convicted Burrage who was sentenced to the 20-year mandatory minimum. Absent the “death results” finding, the sentence would have been capped at 20 years.
In the Supreme Court, Burrage argued that the “death results” language clearly requires that the heroin was the actual or substantial cause of death. FAMM agreed with Burrage’s argument that the law was clear. We became involved to explain why, if the Court thought the “death results” language at all unclear, it should apply the “rule of lenity” and interpret that provision of the statute in favor of the defendant. This, we said, is especially important when an unclear law has a mandatory minimum sentence. We argued that the costs of misinterpreting an unclear law with mandatory minimums included offending courts’ “instinctive distaste against men languishing in prison unless the lawmaker has clearly said they should.” Mandatory minimums are especially problematic in this regard because a mistake about the law’s reach has such extreme consequences that the court cannot correct by lowering the sentence.
FAMM is especially grateful to Greg Rapawy and Caitlin Hall of the law firm Kellogg, Huber, Hansen, Todd, Evans & Figel, P.L.L.C. for writing our amicus brief and to Peter Goldberger, chair of FAMM’s amicus committee for guiding our work on this and all our amicus briefs.
On June 17, the U.S. Supreme Court shook up mandatory minimum sentencing, extending the protection of the Sixth Amendment’s right to trial by jury to all defendants facing enhanced mandatory minimum sentences. In Alleyne v. United States, a 5-4 majority held that any fact that triggers any mandatory minimum sentence is an “element” of the crime and must be proven to a jury by proof beyond a reasonable doubt. Before Alleyne, a judge who found that certain facts had been established by the lower “preponderance of the evidence” standard was required to impose
any mandatory sentence triggered by those facts. The decision, which reverses the Court’s 2002 ruling in Harris v. United States, is a straightforward but hard-fought extension of the so-called Apprendi rule. The Apprendi case commands that any fact that increases the range of punishment to which a defendant is exposed is an “element” of the crime and must be presented to the jury and proved beyond a reasonable doubt.
As in Alleyne, the statute in Harris was the gun statute, 18 U.S.C. § 924(c). In Harris, the Supreme Court decided that while juries had to decide whether a defendant possessed a gun (triggering a five-year mandatory minimum), judges make the decision about how the gun is used (triggering longer mandatory minimum sentences of seven or even ten years). Once judges found that it was more likely than not that a gun was used in a certain way, the judge had to impose the higher mandatory minimum.
Today, Alleyne overruled this rule from Harris.
In Alleyne v. United States, the robber of a convenience store owner in Virginia was convicted under the gun statute because his accomplice used a gun in the robbery. The jury found beyond a reasonable doubt that Alleyne had known his accomplice would possess a gun in the robbery. That finding triggered the five-year mandatory minimum sentence. The judge asked the jury to consider whether Alleyne had brandished (shown) the gun. The jury did not find beyond a reasonable doubt that he had done so. At sentencing, however, the court found it more likely than not — a lower standard of proof — that Alleyne must have known that his accomplice would brandish a gun during the robbery. Brandishing a gun is a fact that triggers a specific, longer mandatory minimum sentence.
In Alleyne, the judge, not the jury, decided that the robber’s plan included brandishing a gun. His decision automatically required that he impose the higher, 7-year mandatory minimum sentence. He didn’t want to, saying on the record, “I don’t like the role of being the reverser of juries.” Justice Breyer, who wrote separately, summed up what Alleyne means for judges facing such situations: “the government cannot force a judge who does not wish to impose a higher sentence to do so unless a jury finds the” facts that trigger it, by proof beyond a reasonable doubt.
Alleyne is an important case because it means that now, facts that trigger a mandatory minimum sentence — for example, the amount of drugs — must be included in an indictment’s charges and proven to a jury by proof beyond a reasonable doubt (or admitted by the defendant in a guilty plea). For example, to give a defendant a five-year mandatory minimum sentence for a crime involving crack cocaine, the indictment must state — and the government must prove — that at least 28 grams of crack cocaine were involved in the offense. It is no longer sufficient that a judge finds these facts at sentencing.
In these two cases, the Court decided that so-called “pipeline” defendants — federal crack offenders who committed their crimes before the Fair Sentencing Act of 2010 (FSA) was signed into law, but were sentenced for those crimes after the Act had gone into effect — could be sentenced under the new law’s fairer 18-to-1 ratio instead of the old law’s 100-to-1 ratio. The problem only affects people facing mandatory minimums — guideline defendants sentenced after the FSA became law get the lower crack sentence, no matter when they committed their crime.
In our brief, FAMM highlighted, in a very specific way, just how unjust it would be let the old law apply to pipeline defendants. We were able to use a story we got from a member of FAMM who responded to our email request for pipeline cases. The Court’s decision will produce fairer punishments for hundreds of “pipeline” defendants.
Federal crack offenders who committed their crimes before the Fair Sentencing Act of 2010 (FSA) was signed into law — August 3, 2010 — but were sentenced for those crimes after that date can now be sentenced under the new law’s fairer 18-to-1 ratio instead of the old law’s 100-to-1 ratio.
The oral argument on December 6, 2011 in Pepper v. United States was unusual in several respects.
First, instead of the usual two lawyers arguing, there were three. Besides Mr. Pepper’s lawyer, and the government’s lawyer from the Office of the Solicitor General, a third lawyer participated. They divided the hour-long oral argument three ways. The Supreme Court appointed Adam Ciongoli as the third lawyer to defend the Eight Circuit’s judgment that post-sentencing rehabilitation may not be considered. That was because the other unusual feature of the Pepper case was the fact that the government had agreed with Mr. Pepper (and with FAMM) that the 8th Circuit’s position on post sentencing rehabilitation was indefensible.
The case presented two issues: (1) whether the second sentencing judge had violated a rule called “the law of the case” when she reduced the first sentencing judge’s substantial assistance departure even though the 8th Circuit did not reverse that part of the original sentence, and (2) whether the 8th Circuit rule prohibiting the use of post-sentencing rehabilitation is invalid in light of the Supreme Court’s decision to make the U.S. Sentencing Guidelines are advisory.
FAMM was especially interested in issue two and we were pleased to hear the government’s lawyer, Deputy Solicitor General Roy McLeese, defend the ability of judges to use post sentencing rehabilitation and strongly urge the Court to strike down the 8th Circuits rule barring its use. In fact, so fervently did Mr. McLeese argue for post-sentencing rehabilitation that the Chief Justice had to remind him to talk about issue one: He told the Court that it only makes sense to consider conduct after sentencing; if not a judge would not be able to consider a defendant’s bad conduct at a second sentencing and it would be unfair to only consider the bad conduct of defendants and not their good deeds.
Mr. Ciongoli disagreed and relied on a little used vestige of pre-advisory guidelines law to support his position. That law, 18 U.S.C. § 3742(g) prohibits courts from imposing a lower sentence at a resentencing if the lower sentence would be based on grounds that were “not specifically and affirmatively” included in the original sentencing justification. Several justices expressed the opinion that this law led to unconstitutional results following Booker and it would prevent judges from considering any post offense conduct, good or bad. Moreover, Justice Ginsburg pointed out that such an interpretation would also require judges to ignore the mandate in the federal sentencing statute, to impose a sentence “sufficient but no greater than necessary” to comply with the various purposes of punishment. Mr. Ciongoli appeared to concede the point at the end of the argument.
Other Cases and Helpful Links:
- U.S. Supreme Court — search the Court’s dockets for a case and read the Court’s latest opinions
- SCOTUSblog — read commentary from Court experts and academics on pending cases
- Oyez Project — read about cases the Court is considering and has already decided, and listen to oral arguments before the Court