Sentencing Commission Calls for Changes Regarding Career Offenders and “Crime of Violence”

By: Zachary M. Nielsen

The Sentencing Commission sent a report to Congress on July 28, 2016, recommending several sweeping changes to criminal penalties. The Commission’s study was initiated following concerns that the career offender guidelines in U.S.S.G. § 4B1.1 brought about overly harsh penalties due to its inability to distinguish between career offenders with diverse criminal records. Its examination centered on the recidivism rates among career offenders fitting three categories: drug trafficking only, violent only, and mixed.

Continue reading “Sentencing Commission Calls for Changes Regarding Career Offenders and “Crime of Violence””

Sentence Vacated Following Miscalculation of Base Offense Level

By: Zachary M. Nielsen

In United States v. Black (D. Kan.)(15-3111)(07-CR-10221-MLB-4), the 10th Circuit vacated the district court’s sentence and remanded for resentencing due to an error in the calculation of the base offense under the United States Sentencing Guidelines. In addition, the Court found that, despite a 23-month delay in bringing him to trial, the government did not deny defendant Black his Sixth Amendment right to speedy trial.

Continue reading “Sentence Vacated Following Miscalculation of Base Offense Level”

District Court Finds Collateral Consequences Increase Harshness of Would-be Sentence

By: Zachary M. Nielsen

In United States v. Nesbeth WL 3022073 (E.D.N.Y. 2016) the district court took a fresh approach to sentencing when it considered collateral consequences and gave a defendant probation rather than jail time. Following its Second Circuit precedent (and a similar holding in the fourth Circuit), the court found the collateral consequences of a felony conviction relevant when balancing the 18 U.S.C. § 3553(a) factors. It also called for more courts to do the same.

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Citizenship, more than race or ethnicity, is predictive of sentencing outcomes

A new study in the American Sociological Review studies the relationship between immigration, citizenship and criminal punishment and asks “several fundamental questions about how noncitizens are sanctioned and whether citizenship is a marker of stratification in U.S. courts remain unanswered.”  Here’s more from the abstract:

Are citizens treated differently than noncitizens—both legal and undocumented—in U.S. federal
criminal courts? Is the well-documented Hispanic-white sentencing disparity confounded by
citizenship status? Has the association between citizenship and sentencing remained stable
over time? And are punishment disparities contingent on the demographic context of the
court? Analysis of several years of data from U.S. federal courts indicates that citizenship status
is a salient predictor of sentencing outcomes—more powerful than race or ethnicity. Other
notable findings include the following: accounting for citizenship substantially attenuates
disparities between whites and Hispanics; the citizenship effect on sentencing has grown
stronger over time; and the effect is most pronounced in districts with growing noncitizen
populations. These findings suggest that as international migration increases, citizenship may
be an emerging and powerful axis of sociolegal inequality.

The full article is below and in Library > Sentencing Argument Resources

Citizenship and Punishment



Attorney Michael J. Liston in the District of Massachusetts has written an article showing that oxycodone “actual” equivalence is not based on “actual” weight at all, and produces guidelines ranges that are disproportionate to those for other drugs including more dangerous drugs such as heroin.  See Part D.  It also touches on similar problems that may come with the classification of hydrocodone from Schedule III to Schedule II on October 6, 2014.  See Part E.

See article below or in Library>DRUGS

OxyConversion Article – Liston

Justice Delayed: Fancois Holloway Resentenced Today

Decisions have consequences. As the theme song to the 1970s TV show Baretta, sung by Sammy Davis Jr., advised, “Don’t do the crime if you can’t do the time.” In 1995, Francois Holloway helped rob three cars. Although he was not armed, an accomplice was. The time the government deemed appropriate for those crimes, should Mr. Holloway plead guilty, was 11 years. Mr. Holloway did not plead guilty, and instead he exercised his Constitutional right to put the government to its proof. The consequence of that decision was an additional 46 years in prison.

In 1995, all of Mr. Holloway’s codefendants accepted plea deals and were sentenced to six years or less. But Mr. Holloway’s counsel assured him that he would win at trial “on a technicality.” Counsel chose to concede Mr. Holloway’s involvement in the crimes but argue that he could not be convicted because he lacked the mens rea of intent to cause death or serious bodily injury, since his actual intent was for the victims to surrender the cars without a fight. This interesting argument, which has probably been the subject of some blog posts in its own right, made it to the Supreme Court and failed in 1999.

Mr. Holloway has exhausted his appeals and remains in prison now, almost 20 years after his crimes. His sentence of 691 months is more than twice the average sentence for murder in fiscal year 2013. All of his victims either support a reduction in his sentence or are unopposed to it.

The extreme severity of Mr. Holloway’s sentence is due to the “stacking” of his 18 U.S.C. § 924(c) convictions (using a gun while committing a crime of violence).  The first conviction required a mandatory minimum sentence of five years, and the second two required mandatory minimums of 20 years each, all to be served consecutively to any other terms of imprisonment. The trial judge John Gleeson acknowledged the injustice of that result at sentencing, and the Sentencing Commission has since asked Congress to amend section 924(c) to make the stacking provisions only applicable to prior convictions.

With the consent of the U.S. Attorney for the Eastern District of New York, Loretta Lynch, two of Mr. Holloway’s section 924(c) convictions are being vacated today (July 29), and he is being resentenced, most likely to time served. (He still has another nine months on an unrelated state drug conviction from 1991.) At his latest hearing, the government insisted it was agreeing to vacate the convictions only because Mr. Holloway’s case is unique in that he has an excellent disciplinary record in prison and his victims are not opposed to his release.

As I have mentioned before, mandatory minimums are not applied consistently across demographic groups. According to the Sentencing Commission, in a 15 year study period, African-American males made up 48% of people eligible for 924(c) stacked charges, 56% of people charged under the statute, and 64% of people convicted under it. Given the disparities present in the system and the sheer number of people in federal prisons, one might question whether Mr. Holloway’s situation is really unique.

Certainly, though, one thing does distinguish Mr. Holloway from the vast majority of federal prison inmates: his trial judge became an advocate for him, urging the D.A. to vacate two or more of his 924(c) convictions. After initially refusing, she finally acquiesced. In a memorandum opinion issued yesterday (July 28), clearly written with an eye towards softening prosecutorial zeal, Judge Gleeson lauded Ms. Lynch’s courage in agreeing to vacate two of Mr. Holloway’s convictions.

As Judge Gleeson put it, it is easy for prosecutors to be “tough on crime” and let the petitions of prisoners and groups like Families Against Mandatory Minimums fall on deaf ears. No one faults them for saying, “there is nothing we can do about mandatory minimums.” But as Judge Gleeson points out, and as this case illustrates, were a prosecutor to say that, she would actually be choosing to do nothing.

Ms. Lynch, on the other hand, took the road less traveled and agreed to exercise her discretion and show some mercy to Mr. Holloway, who, no one disputes, has already been amply punished for his crimes. In doing so, she makes herself vulnerable to criticism, particularly if Mr. Holloway commits another crime after his release. But often the more difficult choice is the right one.

After all, as Judge Gleeson eloquently observed, it is supposed to be the Department of Justice, not the Department of Prosecutions.

The opinion, Holloway v. USA, can be found in Library > Sentencing in General

“Minus Two” Made Retroactive: Thousands Stand To Benefit From Reduced Sentences

In April of this year, the United States Sentencing Commission voted unanimously to approve amendment 782 to the federal sentencing guidelines. This amendment, sometimes referred to as the “all drugs minus two” amendment, will reduce by two the offense levels assigned to the quantities of all types of controlled substances in the Guidelines Manual. This will result in lower guideline sentence ranges for most drug related crimes. However, the minimum and maximum base offense levels, which, for most drug types are 12 and 38 respectively, will not change. The amendment will also make parallel changes to the quantity tables that apply to offenses involving the chemical precursors to scheduled substances.

After passing the amendment, the Commission invited public comment on whether to make it retroactive. They received over 65,000 letters, the vast majority of which were in favor of retroactivity. Accordingly, the Commission voted unanimously on July 18 to make the amendment retroactive, with the caveat that no one will be released from prison because of the changes before November 1, 2015. The result of this is that approximately 46,000 people will be eligible to petition for reduced sentences. The average reduction in prison time will be about two years.

The Commission highlights several reasons why the “minus two” amendment is necessary, the first of which is overcrowding. The number of people incarcerated in the Federal prison system currently exceeds the capacity of the facilities by around 32%. The Commission estimates that these sentence reductions will result in a savings of 79,740 bed years over time. A bed year is the equivalent of one person occupying a bed in a prison for one year.

Also, Congress apparently meant for the high mandatory minimum sentences to apply mainly to high-ranking members of drug organizations, but in practice this has not been the case. Mandatory minimums are tied to the quantity of drugs involved in the offense, but the Commission’s research found the quantity of drugs in a person’s possession is a poor indicator of that person’s position within a criminal enterprise. As Commission Chair Patti B. Saris put it, “a courier may be carrying a large quantity of drugs, but may be a lower-level member of a drug organization.” Therefore the mandatory minimums do not serve Congress’s intended purpose of targeting “kingpins” and “major traffickers” of drugs.

The disparities in enforcement between geographical areas and between socioeconomic groups, common to all aspects of our criminal justice system, are of course present in the use of mandatory minimums as well. For example, in 2012, African-Americans constituted 26.3 percent of people convicted of a drug offense carrying a mandatory minimum penalty, but made up 35.2 percent of those still subject to the mandatory minimum at sentencing. Since mandatory minimums harm people of color disproportionately, a categorical reduction in their use will benefit people of color disproportionately as well.

All of the policy reasons for passing amendment 782 to begin with also militate in favor of making it retroactive, as does the concept of fairness, which seems to suggest that a person should not be forced to remain in prison for an extra two years just because he was sentenced for his crime before this reform came about.

Unless Congress disapproves the “minus two” amendment, it will become effective November 1, 2014. Eligible prisoners will be able to petition the courts for reduced sentences at that time. There are 277 people in Colorado who will be eligible and 238 in Wyoming.

However, per a special instruction in the amendment, no sentence reductions can take effect until November 1, 2015 or later. The one year delay is to ensure adequate review of each case and to allow the Bureau of Prisons and the Offices of Probation and Pretrial Services to prepare by increasing their capacities for transitional services and supervision.

This change in sentencing guidelines may strike an observer as a mitigation of, rather than a solution to, our prison problem. Chair Saris would agree. “The step the Commission is taking today is an important one,” she said on the eighteenth, “but only Congress can bring about the more comprehensive reforms needed to reduce disparities, fully address prison costs and populations, and make the federal criminal justice system work better.”

A press release from the Commission about this decision can be found here.

Here is the text of the amendment.

And here is what FAMM has to say about it.