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.
A case before the Supreme Court, United States v. Koons, No. 17-5716, brings together our interest in strictly limiting mandatory minimums with our work to ensure every individual eligible for a lower sentence gets the chance to ask for one. FAMM filed an amicus (friend of the court) brief with the court on Jan. 29.
The case involves a federal law, 18 U.S.C. sec. 3553(e), that allows a judge to avoid imposing a mandatory minimum when a defendant has provided what is known as “substantial assistance” in the investigation or prosecution of a crime. The judge can waive the mandatory minimum if asked by the prosecutor to do so. This substantial assistance departure is used to lower the sentence as a reward for the defendant’s cooperation.
Once the judge decides to grant the motion, the federal law further directs the judge to impose a sentence according to guidelines crafted by the Sentencing Commission.
The Sentencing Commission reduced drug sentences in 2014, and then made those reductions retroactive. At the same time, the commission made special retroactivity rules for prisoners who had received substantial assistance departures. The commission instructed courts to use the new, lower guideline range when considering how much to further reduce the sentences of prisoners who had received substantial assistance departures.
The petitioners in Koons, who received substantial assistance departures, argued that they are entitled to retroactivity and should receive a reduced sentence proportionally below the new guideline range. In other words, because the mandatory minimum was removed in their cases, they argued that the sentence they received for cooperation should now be lower in light of the new, lower guideline.
The government argued that they are not entitled to have a sentence reduced based on the lower guideline range. Instead, it argues that the commission was wrong and that people who cooperated and thus avoided receiving a mandatory minimum were not sentenced under the guidelines and thus are not eligible for retroactivity. Instead, the government would have the court tether these prisoners to mandatory minimums that were eliminated based on the government’s own motion.
The FAMM brief discusses why the government is wrong based on our interpretation of federal law. But besides arguing that the government’s position runs counter to what Congress intended, we also bring to the Supreme Court our case for why the government’s position would, if upheld, lead to unjust sentencing policy.
We argue that mandatory minimums interfere with discretionary, flexible sentencing; give prosecutors the power to determine a sentence, which sometimes results in tremendous injustice; and fail to deter offenders, reduce crime, or induce cooperation. And, referring to our many members in prison and their loved ones, we tell the court how detrimental mandatory minimums are to the community and our trust in the criminal justice system.
We also make our case by citing to research and empirical evidence that the so-called benefits of mandatory minimums are not only illusions, they cause extreme harm.
Koons was argued before the Supreme Court on March 27. The court should decide the case before July 2018. We will report to you on the oral argument and the final decision.
FAMM has joined two criminal defense organizations in an “amicus” a/k/a “friend of the court” brief in a United States Supreme Court 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 occurred. In the normal course, 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.”
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.”
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.
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 reverse his sentence to send the case back to the sentencing court to resentence him using the correct guideline because the error resulted in correct the mistake in his sentencing would 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.
“These and countless other real-world examples bring home the fundamental point … : No erroneous judicial decision that produces additional prison time — even if an amount of time that may, in the abstract, strike a judge as relatively trivial — can be considered acceptable.”
The case will be argued before the Supreme Court on February 21, 2018 and decided by the end of June 2018. We will keep you posted.
Update: Dimaya Ruling in the Tenth Circuit
The Tenth Circuit Court of Appeals ruled on May 4 that a conviction under 18 U.S.C. sec. 924(c) that relied on a definition of “crime of violence” identical to the definition of struck down by the Supreme Court in Sessions v. Dimaya must be vacated. The case is called United States v. Salas, No. 16-2170. In it, the appeals court ruled that a conviction using the flawed definition constitutes “plain error.” That means that even though the defendant did not object to the use of the flawed definition, the error is one that affects the defendant’s substantial rights and seriously affects the fairness, integrity, or public reputation of the judicial proceedings.
We expect we will begin to see similar opinions in other circuits. We believe this opinion will apply to individuals appealing their conviction under sec. 924(c) that relied on the section of sec. 924(c) struck down by the Tenth Circuit. We do not yet know when or how these opinions will affect people whose convictions have already been appealed and those appeals have been lost.
We do know that issue and others will be working through the courts in the weeks and months to come. We will keep you posted as these cases are decided.
There is a lot of hope building around the U.S. Supreme Court’s decision in Sessions v. Dimaya — and we share that hope. In Dimaya, the Supreme Court struck down the federal definition of “crime of violence” as unconstitutionally vague. The case involved an immigration statute.
What has drawn most attention is the fact that the definition of crime of violence used by the immigration statute is used in, or similar to those used in, other criminal statutes, such as 18 U.S.C. sec. 924(c). Everyone is hoping that some prisoners convicted and/or sentenced based on a definition of crime of violence that is now unconstitutional will have an opportunity for relief.
But there is a lot that even the experts don’t know yet. Getting back into court after a person has been convicted and exhausted all appeals is unbelievably complicated. There are high hurdles and strict barriers. And, there are a lot of questions that we don’t have answers for yet.
For example, can the opinion be applied outside of the immigration statute? If so, how far? And, if so, can it be applied retroactively? What post-conviction remedies (such as 28 U.S.C. sec. 2255 motions) are available, if any? What about people who are pending appeal? What about people who have filed and been denied one post-conviction motion? Will they clear the procedural bar to enable the court to consider a second one?
Right now, the smartest lawyers we know — experts from law schools, and seasoned post-conviction lawyers from the Federal Public Defenders and private bar — are discussing these issues and developing litigation approaches.
The best legal minds in the country are taking their time to develop smart and effective approaches. We are urging everyone in the strongest possible terms to resist the urge to spend money on a private prison consultant or any lawyer who promises outcomes or makes this sound simple. It is not. Don’t take my word for it, check out this article.
Meanwhile, even the Supreme Court is taking some time to work through its caseload of petitions that might be affected by the Dimaya decision. See here.
Please know that we will share more information as soon as we have it.
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