FAMM in the Courts

On June 27, 2022, the Supreme Court ruled that when a district court is deciding whether and how much to reduce an individual’s sentence based on outdated crack cocaine punishments, it may also consider other changes in fact and law that took place since the original sentencing. And although the decision specifically discusses the crack cocaine statutory penalty changes, the opinion is a ringing endorsement of broad judicial discretion to decide what information judges rely on when sentencing or re-sentencing an individual.

The Fair Sentencing Act of 2010 changed weights for crack cocaine penalties that made crack sentences shorter. Section 404 (b) of the First Step Act of 2018 made those changes retroactive. Individuals who had been sentenced prior to the Fair Sentencing Act to the longer crack cocaine sentences could now seek a reduced sentence based on the updated drug weight penalties. Many individuals filed motions presenting additional information such as evidence of their rehabilitation and noted other changes to sentencing law that had occurred since their sentencing and that would result in a lower sentence today. Some courts took this information into account and used it to recalculate sentences. Other courts did not think they had authority to consider this additional evidence in modifying the sentence. Those courts said they could only consider the lower crack cocaine sentence and nothing more.

The case of Carlos Concepcion illustrates this quandary. Mr. Concepcion pled guilty to one count of distributing five or more grams of crack cocaine. He was sentenced to 19 years in prison. In addition to the fact that crack cocaine was punished exceedingly higher than cocaine base, Mr. Concepcion’s long sentence was also driven by his designation as a “career offender” because of his criminal history. In 2019, Mr. Concepcion filed a motion under the First Step Act, seeking a sentence reduction based on the updated crack cocaine statutory penalties. He also asked the court to consider other changes in the law that had occurred since his sentencing. Were he sentenced today, he would no longer be sentenced as a career offender. The definition of “career offender” had changed since he was originally sentenced and his criminal history would not count for career offender purposes. These two legal changes would have amounted to a significant change in Mr. Concepcion’s guideline range – from 262-327 months to 55-71 months.

In addition, Mr. Concepcion presented evidence of rehabilitation – dedication to religion, completion of a drug rehabilitation program, and a stable release plan. He argued to the district court that all of these factors, not just the changed crack penalties, should be considered in his request for a reduced sentence.

The district court, however, disagreed. The district court thought itself bound by the law and facts that were in place at the time Mr. Concepcion was originally sentenced, and would only consider the changes to the crack penalty. The First Circuit affirmed the district court, adding to a split in court decisions across the country.

In overruling both the First Circuit and the district court, the Supreme Court reaffirmed that, tradition, history, and the law afford sentencing judges broad discretion in the information they may consider during a sentencing proceeding. The Court said judges enjoy that discretion at both the original criminal proceeding and at a sentencing modification hearing. After all, the federal sentencing framework “allows sentencing judges to consider the ‘fullest information possible concerning the defendant’s life and characteristics.’” According to the opinion, the only limitations on what a judge can consider are ones specifically articulated by Congress. The First Step Act imposed no limitation on considering post-sentencing conduct or legal changes that would have the effect of lowering the sentence if applied today.

So who does this decision help? Well it helps individuals who are eligible for a reduction in sentence based on section 404(b) of the First Step Act, who have not yet requested a resentencing, and who have additional information – whether legal, factual, or both – that might further lower their sentence. Although it is less clear whether, and to what extent, this ruling helps people who have already sought a 404(b) resentencing, individuals in the First, Fifth, Ninth, and Eleventh circuits whose 404 motions were rejected should contact their lawyers or the public defender office to see if this opinion affects them. You also may be wondering whether this decision helps individuals who are bringing a compassionate release motion, and that is a valid question. Unfortunately, we do not yet know enough information to opine as to the impact of this decision on compassionate release motions.

The opinion by the Supreme Court can be found here, and the brief that FAMM submitted in support of Mr. Concepcion can be found here.

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On November 22, 2021, FAMM, along with our partners at the National Association of Criminal Defense Lawyers, and the National Association of Federal Defenders filed an amicus brief (friend of the court) in support of the Petitioner, Carlos Concepcion in United States v. Concepcion. The case addresses whether a lower court may or must consider intervening changes in fact and law when imposing a reduced sentence for individuals who were originally sentenced under outdated crack cocaine statutory sentences. This case has significant consequences. FAMM’s amicus brief builds on FAMM’s larger second look strategy in advocating that judges must, as they always must in sentencing, consider the individual factors and circumstances before imposing a sentence.

The First Step Act of 2018 made changes under the Fair Sentencing Act (changed weights for crack cocaine penalties that made crack sentences shorter) retroactive. As district court judges across the country have been deciding whether to “impose a reduced sentence” for people sentenced to the now-abandoned 100-1 ratio, they look at what the crack cocaine sentence would be today.  Courts considering crack retroactivity motions have also been made aware of other factual and legal changes that have occurred since the individual was sentenced. These changes could result in additional reductions in the sentence beyond the crack reduction on its own.  Some courts have been strict, considering only the specific changes relating to crack cocaine ratio when reducing a crack sentence under the First Step Act.  Those courts will not consider other legal and factual changes that could lead to further reductions.  Other courts have considered and applied intervening factual and legal changes related to the individual when coming up with the new reduced sentence.  These include things like evidence of the person’s rehabilitation, changes to the Sentencing Guidelines, or developments in case law, for example, Judges in those courts can shave more time off of a sentence than would be using only the new crack cocaine sentences. These two different approaches have left individuals across the country subject to very different sentencing schemes.

In this case, Carlos Concepcion was convicted of selling at least 5 grams of crack cocaine. He was initially sentenced to 19 years in prison. His sentencing took place in 2009 – just one year before the Fair Sentencing Act was passed. When he petitioned for a reduced sentence based on the First Step Act, he pointed to a few changes in the law as well as changes in facts that would lower his sentence further if applied. First, the Fair Sentencing Act reduced the penalty for the weight of crack cocaine that he sold. Second, Concepcion’s sentence length was also driven by a career offender designation that would no longer apply. Third, he demonstrated rehabilitation by pursuing drug treatment and education while in prison. The district judge refused to consider anything except the changed drug weight calculation. Concepcion appealed the decision on the grounds that the judge did not consider the other two changes outlined above.

On appeal, the First Circuit sided with the district court judge and created a two-step rule that would require the district judge to “place itself at the time of the original sentencing” and ignore any changes since then except for changes specifically authorized by the Fair Sentencing Act. This means that the only reduction the court can make is to apply the 2010 crack cocaine sentence and courts cannot consider anything else that occurred since that time.

Concepcion filed a petition for certiorari with the Supreme Court, asking the Court to review the First Circuit’s analysis. The Supreme Court granted his certiorari petition on September 30, 2021.  In his brief to the Supreme Court, Concepcion argued that the First Circuit’s decision undermined Congress’ intent in the First Step Act that courts take into account current facts and law in imposing a reduced sentence.  Federal sentencing law requires that whenever a judge imposes a sentence, the judge must make an “individualized assessment” of the individual.  Concepcion argued that “[w]ithout taking current law and facts into consideration, district courts cannot accurately perform the kind of individualized assessment that Congress called for when courts ‘impose’ a sentence.”

Concepcion offered two solutions to the First Circuit’s erroneous ruling – (1) that, at a minimum, courts may consider intervening changes to facts and law; or (2) that courts must consider current facts and law when reviewing requests for new sentences under the First Step Act. The government agrees with Concepcion’s first solution – that judges have discretion to decide whether to consider changes to facts and law when imposing new crack sentences, but it does not agree they must consider those changes.

FAMM wrote an amicus brief in support of the second solution – that courts must consider intervening changes in the course of imposing a reduced sentence. FAMM argued that requiring district courts to consider a wide range of factors is essential to making the required individualized assessment and is a long-established tradition in criminal proceedings.  We explained that the First Step Act preserved, rather than ended, that tradition. To underscore the importance of the “must” rule, FAMM pointed out that all of the individuals up for consideration of a reduced sentence have been incarcerated for more than a decade, and many for much longer. All have had immense opportunity to demonstrate rehabilitation in the face of excessively long sentences and they should be rewarded for their success in doing so.

On January 19, 2022, this case was argued before the Supreme Court. Some Justices seemed to be concerned that the law did not mandate district court judges to re-open the entire sentence (in other words, signaling disapproval of the “must” rule). Other Justices seemed very concerned about the real world impact of allowing courts to decide for themselves whether to consider intervening changes (signaling support for the “must” rule).

A decision in the case can be expected by Summer of 2022. FAMM hopes that the Court will adopt the “must” rule.  This will mean that everyone sentenced under old crack cocaine law can expect the court to look at all changes between the time they were sentenced and today.  A ruling to the contrary would result in a geographic disparity where people in some states are likely to see significantly reduced sentences, while people in other states, would not.

The gun statute at 18 U.S.C. § 924(c) adds anywhere from 5 to 25 years or more onto a person’s sentence if that person possessed or used a gun in connection with a crime of violence.  Hobbs Act robbery is a crime of violence, but courts of appeals were split over the question whether an attempt to commit Hobbs Act Robbery is a crime of violence. On June 21, 2022, the Supreme Court ruled in United States v. Taylor that the crime of attempted Hobbs Act robbery is not a crime of violence under the gun statute.  With this ruling, the Court found that Mr. Taylor had not violated the gun statute and that a mandatory minimum sentence was erroneously added to an already lengthy sentence in Mr. Taylor’s case.

Mr. Taylor pled guilty to one count of attempted Hobbs Act Robbery, which carried a maximum 20-year punishment. His punishment was increased by 10 years, a mandatory term, because the government successfully argued that his crime was a “crime of violence” under 18 U.S.C. § 924(c)(3)(A).  There were two main legal issues at play in this case: attempted crimes and the definition of “crime of violence” under federal law.

To prove that someone “attempted” a crime, the government merely needs to show that someone intended to commit the crime and then took a “substantial step” towards completing that crime.  Hobbs Act robbery is the “unlawful taking or obtaining of personal property from the person . . . of another, against his will, by means of actual or threatened force.” 18 U.S.C. § 1951(b).   To win a conviction of attempted Hobbs Act robbery, the government must show that the defendant intended to rob the victim and took a substantial step towards doing so.  What is a substantial step? It can be driving to the bank with a mask and gun.

To qualify as a crime of violence under the gun statute, the government must prove that the crime “has as an element the use, attempted use, or threatened use of physical force.”  Elements are what must be proven to a jury (or admitted to in a plea) beyond a reasonable doubt before a person can be convicted.  Attempted Hobbs Act robbery can be committed in two ways: (1) attempted use of force, or (2) attempted threat of force.  Attempted threat of force is not included in the definition of crime of violence. Therefore, the Court ruled, attempted Hobbs Act Robbery can never be considered a crime of violence. This is despite the possibility that the facts of any individual case might indicate violence.

Critically, courts are prohibited from inquiring as to the facts of the particular case when deciding whether a person has committed a “crime of violence” under the gun statute; they can only look at the elements of the underlying crime.  And, according to 7 Justices on the Supreme Court, the elements of attempted Hobbs Act robbery clearly show it is not a crime of violence. As the Court observed, “to secure a conviction the government must show an intention to take property by force or threat, along with a substantial step towards achieving that object. But an intention is just that, no more. And [a substantial step] does not require the government to prove that the defendant used, attempted to use, or even threatened to use force against another person or his property.”

To illustrate the point, the Court included a very useful hypothetical which we copied here:

Suppose Adam tells a friend that he is planning to rob a particular store on a particular date. He then sets about researching the business’s security measures, layout, and the time of day when its cash registers are at their fullest. He buys a ski mask, plots his escape route, and recruits his brother to drive the getaway car. Finally, he drafts a note—“Your money or your life”—that he plans to pass to the cashier. The note is a bluff, but Adam hopes its implication that he is armed and dangerous will elicit a compliant response. When the day finally comes and Adam crosses the threshold into the store, the police immediately arrest him.

In this example, Adam did not “use” physical force. And he did not “attempt” to use any force. He never actually threatened anyone because he was arrested before the robbery was completed. Despite his intent to commit a robbery, and the steps he took towards committing a robbery, he failed in his mission because he was intercepted.  Because scenarios like this one can lead to an attempted Hobbs Act Robbery conviction, attempted Hobbs Act robbery by definition is not a crime of violence.  And so, the mandatory minimum cannot be applied.  Mr. Taylor’s sentence to 30 years will likely be reduced to 20.

Although this case is a victory for Mr. Taylor, the larger implications are likely limited to people whose case has similar facts to Mr. Taylor’s – convicted and sentenced to both an attempted Hobbs Act robbery and a crime of violence under 924(c).  If you think this case may impact your sentence, be sure to contact your attorney or the federal defender office in your district.

The Supreme Court opinion in this case can be found here. The amicus brief (friend of the court brief) that FAMM submitted can be found here.

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On October 29, 2021, FAMM filed an amicus (friend of the court) brief along with our partners at the National Association of Criminal Defense Lawyers (NACDL) in United States v. Taylor (No. 20-1459). The case asks whether the crime of attempted threat of robbery can be a “crime of violence” under 18 U.S.C. § 924(c). That law imposes a mandatory minimum sentence of at least five years for using or carrying a firearm in furtherance of a “crime of violence.” Courts have long wrestled with what crimes are crimes of violence. Clarifying this is critical as the § 924(c) sentence must be imposed in addition to the sentence for the underlying crime of violence.

To determine whether an individual’s conduct amounts to a “crime of violence,” the Supreme Court has instructed lower courts to investigate only the elements of the crime of conviction, an inquiry called the “categorical approach.” The court’s examination of the underlying statute stops at the elements. The court may not decide whether the defendant was convicted of a crime of violence by examining what actions the defendant actually took or might have taken.

Elements are the things that must be proven to the jury beyond a reasonable doubt, or admitted by the defendant in a plea agreement. The gun statute, 18 U.S.C. § 924(c), defines a crime of violence as one that “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” The court, in deciding whether the underlying crime is a crime of violence, must assume that the conviction is based on the least harmful conduct criminalized by the elements of the statute. If the least harmful conduct can be considered a crime of violence – that is, if it involves the use, attempted use, or threatened use of physical force against another – it will trigger the mandatory minimums in § 924(c).

Mr. Taylor was convicted of conspiracy to commit a Hobbs Act robbery and an attempted Hobbs Act robbery. The sentencing court ruled that these convictions amounted to “crimes of violence.” It sentenced him to a mandatory minimum term because Mr. Taylor was also convicted of using a firearm to advance the robbery. Following recent Supreme Court cases limiting the court to the categorical approach (United States v. Davis and Johnson v. United States), Mr. Taylor believed that his conviction was categorically not a crime of violence. He argued to the court of appeals that the elements of a Hobbs Act robbery could be proven by the least harmful conduct of attempted threats. Attempted threats, he argued, do not necessarily result in violence or a threat of violence because they do not necessarily involve the use, attempted use, or threatened use of physical force. The court of appeals agreed with Mr. Taylor, but the government did not.

The government appealed the case to the Supreme Court, accusing the court of appeals of “foreclosing prosecutions for violent gun crimes.” According to the government, a Hobbs Act robbery – even the attempted threat of one – must be a crime of violence. The government said the “conviction for attempted Hobbs Act robbery requires the jury to find that the defendant engaged in a course of action that was sufficiently certain . . . to culminate in taking property through physical harm or the threat of it.” The attempt to threaten physical harm (the least harmful conduct the Hobbs Act criminalizes) means that any conviction under Hobbs Act robbery is a crime of violence. And, in any event, the government added, “would-be” Hobbs Act robbers often perpetrate violence, and so Congress must have wanted to include this conviction as a crime of violence.

FAMM, along with the NACDL, filed an amicus brief underscoring that the government’s argument is facially flawed because it looks to the conduct of “would-be” Hobbs Act robbers – an argument that the Supreme Court has strictly prohibited. Our brief surveys the case law that led the Supreme Court to change how to define a crime of violence. Specifically, when the old rules were in place, judges had to engage in legal guesswork and, according to the Court, “imposition of criminal punishment can’t be made to depend on” a judge’s imagination. As our brief points out, that is precisely what the government has invited courts to once again do.

Feeling confused by the complexities of this legal analysis? So are many defendants, counsel, and courts. Which is why our brief’s final argument urges the Court to apply the “rule of lenity” to resolve the case in favor of Mr. Taylor. The rule of lenity is a tool that counsels the courts to rule in favor of the defendant when faced with a criminal statute that it is unclear about who or what conduct it criminalizes. The rule of lenity helps courts avoid punishing people for conduct that Congress has not clearly criminalized.

You can read FAMM’s brief here. Learn more about the case here.

FAMM thanks Jeffrey Green, Anna Burke, and Jacob Steinberg-Otter from Sidley Austin LLP, as well as Xiao Wang and Joshua Kleinfeld from the Supreme Court Practicum at the Northwestern Pritzker School of Law.

On March 7, 2022, the Supreme Court decided the case of Wooden v. United States. Wooden raised the question of whether a string of burglaries in one night were ten distinct crimes or one crime. If they were ten distinct crimes, the Armed Career Criminal Act (ACCA) could enhance Mr. Wooden’s sentence from a maximum of 10 years to a 15-year mandatory minimum. The case turned on the definition of the word “occasions.” The court could only impose the 15-year mandatory minimum if Mr. Wooden had three prior convictions that were committed on three different occasions.

A unanimous Supreme Court decided that multiple criminal convictions that arise from a single criminal episode (e.g.., a string of robberies in one night) are not separate occasions. Instead, they are considered only one crime for ACCA purposes. The Court created a balancing test to figure out whether prior offenses occurred on different occasions.

In a concurring opinion (an opinion that agrees with the holding of the majority, but wants to add additional, non-precedential commentary), Justice Neil Gorsuch and Justice Sonia Sotomayor said  that this case could have been decided using the rule of Lenity rather than a balancing test to interpret  the meaning of “occasion.” Lenity, as Justice Gorsuch noted, requires that “any reasonable doubt about the application of a penal law must be resolved in favor of liberty.”  In Mr. Wooden’s case, smart lawyers had offered varying definitions of the statutory meaning of “different occasions.”  In light of that ambiguity, the rule of lenity would demand a ruling in favor of Mr. Wooden.

Lenity is a critical tool in ensuring that laws that punish individual conduct are written clearly.  If not, any ambiguity has to be resolved in favor of the defendant. According to Justice Gorsuch, “[s]ince the founding, lenity has sought to ensure that the government may not inflict punishments on individuals without fair notice and the assent of the people’s representatives.”

FAMM was particularly pleased to see Justice Gorsuch’s concurring opinion focus on lenity. The amicus brief that FAMM submitted in this case argued that Mr. Wooden’s case could be resolved under the rule of lenity. Although the lenity argument did not make its way into the majority opinion, Justice Gorsuch’s concurrence lays important groundwork for arguments based on the rule of lenity in future criminal cases under ACCA and other complex criminal statutes.

The Supreme Court’s opinion can be found here.

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On Monday, May 10, FAMM filed an amicus (friend of the court) brief in Wooden v. United States (No. 20-5729), a case involving a mandatory minimum sentence of 15 years. Federal law prohibits a person with a felony conviction from possessing a gun, and authorizes sentences up to a maximum of ten years if one is convicted of being a so-called “felon in possession.”  If, however, the person has convictions for three or more prior drug offenses or violent felonies, the sentence increases to a mandatory minimum of 15 years. This is the Armed Career Criminal Act (ACCA). The ACCA requires that the prior convictions can only be counted if they have been committed “on occasions different from one another.”

William Wooden broke into a mini-storage facility in 1997 and stole items from ten separate units on the same evening. He pled guilty to 10 counts of burglary. When, years later, he was convicted of being a felon in possession, he was sentenced to 15 years as an Armed Career Criminal, based on those ten burglaries, committed in one evening in one mini-storage facility.

Mr. Wooden did not believe that his one night of burglary (and subsequent possession of a gun) made him an Armed Career Criminal. He filed a pro se petition with the Supreme Court, which agreed to review his case.

Mr. Wooden, now represented by counsel, argues that “offenses are not committed on different ‘occasions’ just because they occur sequentially.”  The consequences of expanding the ACCA were significant in his case — had he not been sentenced as an Armed Career Criminal, he would have faced a sentencing range of around two years.

In FAMM’s amicus brief we explain that a one-night series of burglaries does not meet the ACCA’s definition of offenses committed on different occasions. We point out that a number of people have been convicted of ACCA whose “career in crime” occurred in the space of a single day, a single hour, or even just a few minutes. We use examples from other cases in which individuals, like Mr. Wooden, have been subjected to extreme mandatory sentences, based on the government’s expansion of the meaning of Armed Career Criminal.

We also explain in our brief that should the ACCA not be clear, that the Court should apply the “rule of lenity” to resolve the case in Mr. Wooden’s favor. The rule of lenity is a tool that guides the courts to rule in favor of the defendant when faced with a criminal statute that is not clear about who or what conduct it criminalizes or punishes.

You can read FAMM’s brief here, and learn more about the case here.

FAMM thanks Greg Rapawy and Minsuk Han, of Kellog, Hansen, Todd, Figer & Frederick, P.L.L.C.for drafting our amicus brief.

Update: Oral Argument held October 4, 2021

Attorneys for Mr. William Wooden and for the United States met for the second argument of the new Supreme Court term on Monday, October 4. The justices were especially interested in hearing from counsel for both sides about what test a court could use to determine whether prior convictions had stemmed from offenses “committed on occasions different from one another.” The Armed Career Criminal Act requires that a person be sentenced to a 15-year mandatory minimum, but only if they have three prior crimes of violence committed on different occasions. The justices posed a number of lively hypothetical scenarios, invoking Jesse James and his cousin, among others, trying to figure out when one occasion ends and another begins.  Justice Alito pointed out that trying to define occasion was quite tricky.

Justice Gorsuch was particularly interested in hearing about the rule of lenity in cases like this that involve very strict mandatory minimums.  It sounded as though he was picking up some themes from FAMM’s amicus brief.

We don’t know how the case will turn out. It will be decided by the end of June, 2022.

You can listen to the oral argument.  You can read the transcript.

FAMM will let you know when a decision is announced.

On January 10 and January 24, 2022, The Supreme Court denied certiorari in a handful of cases (Watford, Jarvis, and Sutton) that addressed the legal issue of whether sentencing courts can use compassionate release to reduce sentences that could no longer be imposed today because of changes made by the First Step Act. The cases came from appeals courts that do not permit using compassionate release to reduce sentences that can no longer be imposed after the First Step Act. FAMM filed amicus (friend of the court) briefs in these cases, urging the court to grant review.  We hoped the Court would agree to review the appeals’ court decisions and then rule that changes to the law could be an “extraordinary and compelling circumstance,” opening the door to compassionate release. Many courts across the country share FAMM’s view and are re-sentencing individuals accordingly, but many other courts disagree and won’t consider changes to sentencing law as a basis for compassionate release.

By denying certiorari (the Supreme Court’s process for deciding which cases to weigh in on), the court has, for now, decided that an individual’s opportunity for a sentencing reduction will depend entirely on their zip code. This is good news for some, but not for others. This decision also undermines the principle that individuals convicted and sentenced in the federal courts are equally eligible to access the court when opportunities for relief exist. For now, that is not the case.

Although two additional cases that raise the same question still await a certiorari decision from the Supreme Court, it seems almost certain that the Court will also decline to review those cases. So where does this leave advocates, lawyers, incarcerated individuals, and family members?

The United States Sentencing Commission is tasked with describing the grounds for compassionate release. But for three years – since before the First Step Act was enacted which changed the compassionate release law – the Commission has lacked a quorum of voting members. It has been unable to update compassionate release guidelines.  With the Supreme Court unwilling to intervene and answer critical questions regarding compassionate release for excessive sentences, our attention and advocacy will turn towards the Commission. First and foremost, that work will involve a push on the Biden administration to nominate commissioners, followed by a push on the Senate to confirm those commissioners. Of course, we are not waiting for the Commission to be in its seats to plan our campaign. We are beginning the advocacy effort now, aimed at ensuring judges maintain the discretion they have mostly enjoyed for the last two years, to determine who is eligible for compassionate release.

Once a quorum is in place, FAMM will be positioned to provide expert insight on the key federal sentencing issues that FAMM has been working on in the Commission’s absence. Stay tuned for details of our campaign!

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The First Step Act dramatically reduced excessive mandatory minimum sentences for repeat gun and drug convictions. But the changes are not retroactive. The First Step Act also reformed the federal compassionate release law. Three people serving sentences the law now considers excessive are asking the Supreme Court to decide if judges can use compassionate release to reduce sentences that can no longer be imposed.  FAMM supports their petitions with briefs that breathe life into complicated legal questions by doing what we do best – telling the stories of people affected by the law.

On November 12, 2021 and November 17, 2021, FAMM, along with our partners at the National Association of Criminal Defense Lawyers (NACDL), filed amicus (friend of the court) briefs in Watford v. United States (21-551), Jarvis v. United States (21-568), and Sutton v. United States (21-6010). We are asking the Supreme Court to grant certiorari (review) in these three cases.   Should the Court take one or more of them, its resolution will help define the impact of the 2018 First Step Act and the scope of compassionate release.

The First Step Act of 2018 made significant changes to the mandatory minimums for multiple convictions under 18 U.S.C. § 924(c) (possession of a firearm in furtherance of a crime of violence). It also expanded the availability of compassionate release. The legal question raised by these cases is straightforward – may courts consider the changes Congress made to § 924(c) as among the “extraordinary and compelling reasons” justifying compassionate release. The answer can mean the difference between a de facto life sentence and freedom. If the Supreme Court accepts one (or more) of these cases and rules in favor of the petitioner(s), thousands of people who were sentenced to grossly unjust mandatory minimum sentences would have the opportunity for a second look.

Prior to the First Step Act, the law required a judge to impose cumulative and consecutive 25-year mandatory minimum terms for second or successive 924(c) convictions, even for first-time defendants. This came to be known “924(c) stacking.” Thankfully, in the First Step Act, Congress amended the “stacking” process. The 25-year stacked sentences can no longer be imposed on a first-time defendant convicted of multiple 924(c)s. The sentences imposed on the petitioners in these cases – and the sentences they would receive after the First Step Act – demonstrate the draconian nature of these mandatory minimums. For example, Mr. Watford’s and Mr. Sutton’s original 45-year mandatory minimums would fall to 15 years. That is a difference of three decades. However, Congress did not make this reform retroactive.

The First Step Act made another critical change – it allowed incarcerated people to file compassionate release motions on their own. Under the old regime, incarcerated people had to wait for the Bureau of Prisons (BOP) to initiate those motions on their behalf, which was a true rarity. Compassionate release, the federal legal mechanism for a “second look,” authorizes federal judges to reduce a prison sentence when there exist “extraordinary and compelling reasons.” Letting people file for compassionate release, rather than relying on the BOP to do so, greatly expanded the opportunity for individuals to ask courts for a “second look.”

Based on all these important legal changes, the petitioners in these three cases – like many others – began filing compassionate release motions asking courts to reduce their excessive sentences that can no longer be imposed. For the petitioners here, one reason, among others, was the impact that the changes to § 924(c) would have on their lengthy sentences. But the district courts and courts of appeals in petitioners’ cases ruled that changes under 924(c) could not even be considered as an “extraordinary and compelling” reason justifying compassionate release. The courts reasoned that because the First Step Act did not expressly permit the re-sentencing of people serving the old, stacked 924(c)s when it lowered those sentences, the courts may not use compassionate release to do so.

At its core, the legal question is simply one of statutory interpretation – what did Congress permit or prohibit in the law? And in response, FAMM argues that the lower courts in these cases got it wrong by undermining Congress’ handiwork. Those courts essentially rewrote the law by adding a prohibition into the compassionate release statute that Congress did not include. Courts may interpret, but cannot write, statutes. Only Congress can.

But FAMM’s briefs go further, humanizing this otherwise dry argument about the text of the law, by narrating the lived experience of two FAMM members – Jamal Ezell and Adam Clausen. Both Jamal and Adam were granted compassionate release based on the changes to 924(c) stacking. In both their cases, the sentencing judges who imposed the original sentences recognized the patent injustice of the mandatory minimum sentencing scheme. Years later, they got a chance to do something about it when given the opportunity via compassionate release motions. These judges expressed relief at the ability to make a fair determination of punishment on an individualized basis. They concluded that Jamal and Adam had presented extraordinary and compelling circumstances and released them from prison. Had the courts in Jamal and Adam’s case followed the faulty logic of the courts in the petitioners’ cases, Adam and Jamal would still be in prison today and for many years to come.

Our criminal system should allow people to benefit when Congress recognizes and changes laws that have cost people their lives and perpetuated racial disparities in the criminal legal system. The compassionate release statute is the right tool to use. If the Supreme Court does not correct the courts below, Congress’ handiwork to address and correct one injustice could tragically spawn another.

We are grateful to pro bono counsel at Kaplan, Hecker, and Fink LLP for crafting these briefs. The brief in Watford can be found here; the brief in Jarvis can be found here; and the brief in Sutton can be found here.

More information on Jamal and Adam, and their fight for freedom can be found here.

Update:  Certiorari denied December 6, 2021

On December 6, 2021, the Supreme Court issued an order denying certiorari in Bryant v. United States. The Court did not explain why it declined to review the limitations imposed by the Eleventh Circuit on compassionate release motions filed by incarcerated people. For now, therefore, compassionate release motions in Florida, Alabama, and Georgia will have to be based on traditional grounds recognized by the Sentencing Commission. These include serious and terminal medical conditions, certain family circumstances, and certain cases based on advanced age and time served.  See the Compassionate Release Explainer for more detail.

While this outcome is disappointing, FAMM is working hard to ensure federal judges around the nation have wide discretion to grant compassionate release in other cases, such as excessive sentence cases.  We will keep you posted.

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FAMM filed an amicus brief on July 15, 2021 supporting Thomas Bryant’s petition for certiorari. It asks the Supreme Court to review an Eleventh Circuit ruling that denies district judges the authority to grant compassionate release for any reasons other than those identified by the U.S. Sentencing Commission (Commission). FAMM’s brief explains why the Court should grant cert and relates stories of real people to explain the impact of the 11^th Circuit’s rule.

The so-called “compassionate release” law allows a court to reduce a sentence when an individual has an “extraordinary and compelling” reason. The reduction must be “consistent with applicable policy statements issued by the Sentencing Commission.”

The Commission’s policy statement describes compassionate release criteria, including medical, age, and family circumstance-related grounds. It also has a catch-all category when someone does not fit any of the above. It gives the Director of the Bureau of Prisons (BOP) the power to define extraordinary and compelling. That made a sense when only the Bureau of Prisons could file a motion for compassionate release. But, that is no longer the case.

That is because the First Step Act (FSA) made important changes to the law. The most important change allows courts to consider compassionate release motions from incarcerated people, not just from the Bureau of Prisons.

However, the Commission’s policy statement has not caught up with the FSA. The Commission never updated the policy statement after the FSA because there was no Commission in place to do so. The policy statement still tells judges that only the BOP can bring motions and only the BOP can define other compassionate release criteria.

Shortly after passage of the FSA, visionary lawyers began filing and winning compassionate release motions for people whose sentences would be much lower today because of changes made by the FSA to gun and drug mandatory minimums. Changes to those sentences had not been made retroactive so people were left to serve decades longer (r even life) in prison than people sentenced for the very same offense today. These lawyers explained that the extreme disparity in sentences was an extraordinary and compelling reason.

Many of these motions reasoned that, because the policy statement only permits motions from the BOP, it is no longer an “applicable” policy statement. So, they argued, judges need not limit themselves to the policy statement’s definition of extraordinary and compelling reasons. Judges are free to define the grounds for compassionate release themselves.

Many judges agreed and began granting compassionate release motions for people left behind by sentencing reforms.

The government appealed and lost in the eight circuits that have agreed that judges have the power to define compassionate release grounds.

The Eleventh Circuit disagreed in Bryant, a case brought by FAMM board member Shon Hopwood. It explained that the policy statement, though not updated, can still be used and is therefore an “applicable” policy statement. That opinion means that people sentenced in Florida, Alabama, and Georgia may not be considered for a sentence reduction available in the majority of the nation’s district courts.

FAMM’s brief tells the stories of people granted early release in other parts of the country who, had they been unfortunate enough to be sentenced in the 11^th Circuit, would still be locked away today. This “story brief” is our way of explaining why this case is so important – by humanizing a complex legal issue.

You can read our brief and follow the case as it proceeds.

We will let you know when the Supreme Court decides whether to grant cert.

FAMM is immensely grateful to our counsel, Roy T. Englert, Jr., Leslie C. Esbrook, Anna L. Deffebach, and Courtney L. Millian of the law firm of Robbins, Russell, Englert, Orseck & Untereiner LLP.

Update:  Certiorari Denied October 18, 2021

The Supreme Court issued an order on October 18, 2021, denying certiorari in Scott v. United States.  The Court did not explain its decision to deny review.  While we are disappointed by this outcome, FAMM will continue to find ways to raise concerns about what underlying convictions can be used to trigger the harsh Armed Career Criminal Act.

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On May 17, 2021, FAMM filed an amicus (friend of the court) brief in the Supreme Court, supporting the petitioner in Scott v. United States. Mr. Scott is seeking certiorari, asking the Court to review his mandatory minimum sentence of 15 years imposed under the Armed Career Criminal Act. Federal law prohibits a person with a felony conviction from possessing a gun, and authorizes sentences up to a maximum of ten years if one is convicted of being a so-called “felon in possession.”  If, however, the person has convictions for three or more prior drug offenses or violent felonies, the sentence increases to a mandatory minimum of 15 years. This is the Armed Career Criminal Act (ACCA).

Mr. Scott was convicted of being a felon in possession. The Second Circuit Court of Appeals ruled that one of his prior convictions, for First Degree Manslaughter in New York, was a violent felony and counted, together with two other prior convictions, to increase his sentence from a maximum of ten years to a mandatory 15 years.

But felonies are only considered violent for purposes of counting toward ACCA when the statute that was violated requires the “use of physical force against the person or property of another.”  The New York First Degree Manslaughter statute can be violated when the person uses no physical force.

Mr. Scott is asking the Court to answer the following question:  Does a crime of physical inaction, in which the inaction is deemed the cause of injury or death, have as an element the “use of physical force against the person of another” under the ACCA?

The federal courts of appeals are split on whether a conviction under a statute that considers a crime of omission meets the use of force requirement.

FAMM joins Mr. Scott in asking the Court to review this case. We agree with Mr. Scott that ACCA is very clear that the use of force requirement excludes convictions under statutes that do not require the active use of force. If, however, the Court believes ACCA to be ambiguous, we argue the Court should grant his request for certiorari and use the rule of lenity to resolve the issue in favor of Mr. Scott. The rule of lenity is a tool that guides the courts to rule in favor of the defendant when faced with a criminal statute that is not clear about who or what conduct it criminalizes or punishes.

The Court has not yet decided whether to review Mr. Scott’s case. We will let you know once it has reached a decision. If it decides to grant cert, it will order a briefing schedule and FAMM will have another chance to support the case.

In the meantime, you can read FAMM’s brief here and learn more about the case here.

FAMM thanks Alan E. Schoenfeld, David Marcus, and Samuel E. Leifer of the law firm of Wilmer Cutler Pickering Hale & Dorr LLP for representing us in the Supreme Court.

Update: Certiorari Denied October 4, 2021

On October 4, 2021, the Supreme Court issued an order denying certiorari in Osby v. United States.  The Court did not explain its decision to deny review of the case,that challenged the use of acquitted conduct.

While we are disappointed at this outcome, FAMM will continue to find ways to raise concerns about the use of acquitted conduct at sentencing and find ways to end the practice.

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FAMM has long abhorred the use of acquitted conduct at sentencing and has repeatedly urged the United States Sentencing Commission, during the annual public comment period, to abandon its use. FAMM believes that the practice undermines citizens’ view of our justice system as fair and balanced. Members tell us they cannot understand (and we find it hard to explain) why our sentencing rules direct judges to count conduct that a jury has examined and rejected. The practice is out of step with the modern effort to make sentencing more rational, just, and cost-effective. It should be eliminated.

This is how FAMM opens its latest amicus brief on using acquitted conduct to increase the length of a sentence. Mr. Osby is asking the Supreme Court to grant certiorari and review the Fourth Circuit Court of Appeals decision affirming the use of acquitted conduct in his case.

We urge the Court to review the case because acquitted conduct not only harms the defendant who sees the jury verdict in their favor evaporate at sentencing, it also harms our criminal justice system. It enhances the power of prosecutors by encouraging them to overcharge and then, when they lose, rewarding them anyway with long sentences even for poorly supported charges. The harms continue at trial where the defendant has to convince both the jury that they are not guilty beyond a reasonable doubt, and the judge, should they be acquitted, using a different standard of proof. And, the practice harms public trust in the courts. Our brief tells the stories of FAMM members subjected to longer sentences due to acquitted conduct and how it changed their view of the fairness of our justice system.

You can read our brief here.

You can follow developments in the case here.

We will let you know when the Court decides whether to grant cert.

FAMM is very grateful to our amicus counsel, Jonathan Schneller and Natalie Camastra of O’Melveny & Myers LLP for representing us and the National Association of Federal Defenders, our partner on this brief.

Federal law prohibits a person with a felony conviction from possessing a gun, and authorizes sentences up to a maximum of ten years when one is convicted of being a so-called “felon in possession.”  If, however, the person has convictions for three or more prior drug offenses or violent felonies, the sentence increases to a mandatory minimum of 15 years. This is the Armed Career Criminal Act (ACCA).

But felonies are only considered violent for purposes of counting toward ACCA when the statute that was violated penalizes the “use of physical force against the person of another.”

Charles Borden had pleaded guilty to being a felon in possession of a firearm and was sentenced under the ACCA to fifteen years. One of his qualifying prior convictions was for reckless aggravated assault in Tennessee. Borden sought review in the Supreme Court, arguing that reckless assault is not a violent felony for purposes of ACCA. Instead, he argued, only knowing or intentional conduct satisfies the statute’s requirement that the force be used “against” another person.

The Supreme Court granted his request for certiorari (review) and ruled in his favor on June 10 in a five-to-four decision. The Court held that a crime that punishes “recklessness” does not qualify as a violent felony for ACCA purposes. The majority opinion relied on the ACCA language that the force be used “against” another. “`Against another’ demands that the perpetrator direct his force at another individual. Reckless conduct is not aimed in that prescribed manner.”

The Court also pointed out that the ACCA 15-year enhancement targets those who have repeatedly committed “purposeful, violent, and aggressive crimes,” not reckless crimes.

FAMM participated in Borden with an amicus brief. FAMM pointed out that including crimes of unintentional conduct, such as vehicular homicide, assault, and disorderly conduct, pose little risk of continued harm to society and would increase the number of statutes that could trigger ACCA enhancements. We provided examples from state laws including abuse of a sports official, interfering with a public transit operator, or injuring another while racing. We explained that using such convictions would categorize and punish as hardened criminals people who made careless mistakes. “Injuring another after falling asleep at the wheel is both a tragedy and a crime. But such conduct does not evince a propensity for future violent criminal conduct.”

You can read FAMM’s brief here.

You can read the Court’s opinion and other case documents here.

FAMM thanks FAMM Amicus Advisory Board Chair David Debold and a team of lawyers from Gibson, Dunn & Crutcher LLP for writing our brief.

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, initially to the Second Circuit Court of Appeals, 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 discussed 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.

Read the judge’s brief here.

The court of appeals denied the motion and a request for rehearing on January 1, 2020. Mr. Manzano sought cert in the Supreme Court, once again with FAMM’s support, but the Court denied review on November 2, 2020.

You can read FAMM’s amicus brief to the Supreme Court here.

You can read all the briefs and learn more about the case here.

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 was 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 of this pre-First Step Act case, Mr. Salvagno argued that the district court did 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 declined 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 argued that when the BOP refuses to file a compassionate release motion, it is making a decision Congress intended the court to make.

You can read the Supplemental Brief in Mr. Salvagno’s appeal here.

You can read FAMM’s amicus brief here.

Mr. Salvagno’s effort in the Court of Appeals was unsuccessful, but following passage of the First Step Act, he filed a renewed motion for compassionate release and secured his freedom on April 23, 2020.

FAMM supported a prisoner’s federal court case challenging the Bureau of Prisons’ decision to deny him compassionate release. The case was Avery v. Andrews (No. 18-6996) in the Fourth Circuit Court of Appeals.

In this pre-First Step Act case, 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 failed to file a motion with the sentencing court for Mr. Avery’s compassionate release even though the BOP said that Mr. Avery met the criteria for release, as he was terminally ill and not expected to live very long. He argued that it was up to the sentencing court to determine whether a person deserves compassionate release. The BOP’s job was limited only to making a compassionate release motion to the court once it determined a prisoner met 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, 2019 the Fourth Circuit dismissed the appeal.

Mr. Avery filed a motion in the district court in Oregon for compassionate release. The judge granted the motion and Mr. Avery was released from prison on March 22, 2019.

Read our amicus brief.

Read the opening brief.

Imagine you are charged with two crimes. You go to trial and the jury finds you guilty of one, but not the other.

Now, imagine at sentencing that the judge imposes a sentence for both crimes. You will serve time not only for the conduct for which the jury convicted you, but also for the acquitted conduct.

Not in our criminal justice system, you say.

But you’d be wrong.

In our criminal justice system, judges are directed to calculate the prison sentence using even acquitted conduct. FAMM has fought against the use of acquitted conduct for years, and has repeatedly urged the United States Sentencing Commission to end its use.

Using acquitted conduct at sentencing undermines citizens’ view of our justice system as fair and balanced. FAMM members tell us they cannot understand why our sentencing rules direct judges to count conduct that a jury has examined and rejected — and we ourselves find it hard to explain.

One such individual is Vincent Asaro.  He asked the Supreme Court to make the use of acquitted conduct unconstitutional.  FAMM  filed an amicus brief in his case urging the court to review and then end the practice once and for all.

Read our amicus brief here.

Read all the briefs and learn more about the case here.

In February 2020, the Supreme Court declined to review his case.  But we are participating in another acquitted conduct case in June 2021. So keep an eye out for Osby v. United States in our Pending Cases tab.

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.

Previous Updates:

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.

Read our amicus brief.

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.

FAMM participated in Koons with an amicus brief.  To read more about Koons, including the transcript of the oral argument and other briefs in the case, visit the Koons page on Scotusblog.

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.

We wrote:

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 11^th 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 11^th Circuit had initially ruled against petitioner Irma Ovalles. But, following Dimaya, the full 11^th 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 11^th 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 11^th 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 11^th 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.

The Court’s Opinion

FAMM’s Amicus Brief

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.

Amicus brief

The Court’s Opinion

SCOTUSblog page on the case

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

1. convicted of being a “felon in possession” of a firearm or ammunition (18 U.S.C. sec. 922(g); AND
2. 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

1. has the use of physical force as an “element” of the offense; or
2. is “burglary, arson, or extortion;” or
3. “involves the use of explosives;” or
4. “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

1. include the use of physical force in the definition of the offense; or
2. are burglary, arson, or extortion; or
3. 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

1. People who have not been convicted and/or sentenced.
2. 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.

FAMM’s Amicus Brief

The Court’s Opinion

SCOTUSblog page on the case

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.

FAMM’s Amicus Brief

The Court’s Opinion

SCOTUSblog page on the case

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.

FAMM’s Amicus Brief

The Court’s Opinion

SCOTUSblog page on Hill v. United States

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 Court’s Opinion

FAMM’s Amicus Brief

Learn more about the case on SCOTUSblog

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.

Amicus Brief

The Court’s Opinion

SCOTUSblog page on the case