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.
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.
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.
Steven Avery is dying of prostate cancer. He is incarcerated at the federal medical center in Butner, N.C., serving a sentence of 151 months for unarmed bank robbery. The BOP recognizes that prisoners like Mr. Avery with a terminal condition who have 18 months or less to live are eligible for compassionate release.
In Mr. Avery’s case, however, the BOP refused to bring a motion for compassionate release to the sentencing court. It said that releasing this dying man would “minimize the severity of his offense and pose a danger to the community” based on his criminal and institutional conduct.
FAMM and others have long argued that federal law gives the BOP the job of identifying prisoners who meet compassionate release criteria (such as being within 18 months of death) and asking the court to release them. Federal law gives the judge discretion to decide whether the prisoner should be released (based on their history, characteristics, seriousness of the offense, among other criteria).
Protecting public safety is important. But the BOP sets itself up as jailer and judge, and in many cases like Mr. Avery’s says “no” for the wrong reasons.
Final BOP compassionate release denials cannot be appealed to federal court. Mr. Avery’s lawyers decided to fight and brought a “habeas corpus” motion in North Carolina. The federal court denied the petition, saying it did not have jurisdiction to review the BOP’s decision.
Now, the case is in the court of appeals, and FAMM is participating with a friend-of-the-court brief.
In our brief, we describe the history of the federal compassionate release law and how the BOP got into practice of denying prisoners.
As with many FAMM amicus briefs, we illustrated the problem with stories from our own members, who, like Mr. Avery, did not get compassionate release.
You can read our brief here. We were happy to be joined in the case by the Washington Lawyers’ Committee for Civil Rights and Urban Affairs, and to be represented by FAMM Amicus Committee Chair Peter Goldberger, Esq. of Ardmore, Pa.
We will keep you posted on developments.
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