Resource: The Basics of Community Corrections Litigation in the Time of COVID-19

Many of you are eager to explore community corrections options for clients who are incarcerated during the COVID-19 pandemic.

To that end,  The Sentencing Resource Counsel for the Federal Public and Community Defenders offers up a great resource–Community Corrections Basics. This document contains ideas and options about how to transfer clients to community corrections (halfway house/reentry centers or home confinement) to serve the remainder of their sentences so that they are not incarcerated during the pandemic. Note: we are not talking here about compassionate release, which is an actual reduction of sentence under 18 U.S.C. § 3582(c)(1). If a person is granted compassionate release, they are no longer serving their term of imprisonment.  

The potential beneficiaries for increased time in community corrections are clients who are eligible for community corrections but are scheduled to receive less than the maximum statutory time available under 18 USC 3624(c). Section 3624(c) provides that eligible clients can receive up to one year of community corrections in reentry centers, with the lesser of six months or ten percent of the sentence in home confinement. Notably, the Senate just passed the CARES Act to permit the BOP Director to lengthen the time of permitted home confinement. It is expected to also pass the House tomorrow and be signed by the President.

 

 

News You Can Use: SCOTUS clarifies ACCA’s “serious drug offense” definition

In Shular v. United States, the Supreme Court held that “serious drug offense” in 18 U.S.C. § 924(e)(2)(A)(ii) requires only that the state offense involve the conduct specified in the statute; it does not require that the state offense match generic offenses. A prior state law conviction qualifies so long as, under the categorical approach, it necessarily “involves manufacturing, distributing, or possessing with intent to manufacture or distribute” a federally controlled substance. Therefore, the defendant’s prior conviction was a “serious drug offense” notwithstanding his assertion it was broader than the generic definition because it did not require knowledge that the substance possessed was illicit. Shular v. United States, No. 18-6662, 2020 WL 908904 (U.S. Feb. 26, 2020).

Background on ACCA and the categorical approach

Felon in possession of a firearm usually carries a statutory maximum sentence of 10 years in prison. 18 U.S.C. § 924(a)(2). However, the Armed Career Criminal Act (ACCA) provides a 15-year mandatory minimum sentence where the defendant has three previous convictions for a “violent felony” or “serious drug offense.” 18 U.S.C. § 924(e). To determine whether a defendant’s prior conviction qualifies as an ACCA predicate, courts must apply the “categorical approach.” That is, they look only at the elements of the prior offense (not the defendant’s actual conduct) and determine whether those elements categorically qualify as a violent felony or serious drug offense. See generally Mathis v. United States, 136 S. Ct. 2243 (2016).

Most of the Supreme Court’s jurisprudence on predicate offenses and the categorical approach involves ACCA’s definition of “violent felony,” which can be satisfied in one of two ways: (1) under the “force” or “elements” clause, it means any offense that “has as an element the use, attempted use, or threatened use of physical force,” or (2) under the “enumerated offenses” clause, it means any offense that “is burglary, arson, or extortion.” 18 U.S.C. § 924(e)(2)(B). A “serious drug offense” includes most federal drug offenses and any state offense “involving manufacturing, distributing, or possessing with intent to manufacture or distribute” a federally controlled substance. Id. § 924(e)(2)(A) (it also must be punishably by at least 10 years in prison).

The Supreme Court has held that the enumerated offenses clause refers to the contemporary, generic version of that offense; that is, the definition used by most state codes. Thus, for example, after analyzing state codes and criminal treatises, the Supreme Court determined that the generic definition of burglary is “an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.” Taylor v. United States, 495 U.S. 575, 598 (1990).

Shular

In Shular, the defendant argued that the definition of “serious drug offense” referred to the names of drug-related crimes in the same way that the definition of violent felony refers to burglary, arson, and extortion. For example, “possession with intent to distribute,” while descriptive, is also just the shorthand name of that offense. Mr. Shular also argued, most states’ drug offenses require a mens rea element that the defendant must know that the substances involved are illicit; therefore, that mens rea must be part of the generic definition implicitly referenced in the ACCA’s definition of “serious drug offense.” Mr. Shular’s offense of conviction, however, did not have that mens rea. It was therefore broader than the generic definition and did not qualify as a “serious drug offense.”

The government argued that the definition of “serious drug offense” was not referring to the names of offenses; rather it was describing what conduct must be proscribed by the state statutes to qualify as a predicate. In other words, it was more like the violent felony definition’s “elements” clause than the “enumerated offenses” clause. Under this interpretation, no inquiry into the mens rea of the generic definition of any drug offense is required—Mr. Shular’s prior conviction qualified because it necessarily involved: (1) manufacturing, distributing, or possessing with intent to manufacture or distribute; and (2) a federally controlled substance.

In a unanimous decision, the Supreme Court agreed with the government. It found compelling two features of the definition, particularly when compared against the definition of “violent felony.” First, the Court thought that the definition of “serious drug offense” was more descriptive and would be “unlikely names for generic offenses.” Burglary, arson, and extortion, on the other hand, unambiguously name offenses and therefore refer to the generic definitions of those offenses. Second, the “serious drug offense” definition spoke of offenses that involve manufacturing or distribution, which again suggested that they were descriptive terms identifying conduct, not generic offenses. Had Congress intended to refer to generic offenses, it would have used the term “is,” not “involving,” as it did in the violent felony definition. Because the statute uses the term “involving” followed by descriptive conduct, it is not referring to the generic definition of, for example, a “manufacturing” offense.

Basic Takeaways

  • The categorical approach applies to the ACCA’s definition of “serious drug offense.”
  • “Serious drug offense” does not enumerate offenses that must be given their generic definitions.
  • A prior conviction is a “serious drug offense” so long as it necessarily involves manufacturing, distributing, or possessing with intent to manufacture a federally controlled substance—regardless of any potential overbreadth with another element of the generic definition, such as mens rea.
  • It is more like the “force” clause in violent felony than it is the enumerated offenses clause.

Other Implications; Potential Future Arguments

  • A “serious drug offense” still must categorically involve a federally controlled substance, so arguments that state schedules are overbroad are still valid. Cf. Mellouli v. Lynch, 135 S. Ct. 1980, 1989-91 (2015)
  • Arguments that a statute is overbroad because it applies to “offers to sell” should likewise still be valid because they do not categorically involve distributing or possessing with intent to distribute. See United States v. Madkins, 866 F.3d 1136 (10th Cir. 2017); United States v. McKibbon, 878 F.3d 967 (10th Cir. 2017).
  • Inchoate crimes might be ripe to challenge again. The Tenth Circuit’s prior justification for including inchoate crimes is that it “read[s] the ‘involving manufacturing’ language broadly to include attempts to manufacture or conspiracy to manufacture.” United States v. Trent, 767 F.3d 1046, 1057 (10th Cir. 2014). However, in Shular, the parties agreed “that ‘involve’ means ‘necessarily require.’” Shular, 2020 WL 908904, at *5. This narrower definition potentially undermines the Tenth Circuit’s justification for expanding the definition of “serious drug offense” to inchoate crimes.
  • More arguments may come to light as the impact of Shular becomes more clear in the coming months, so be on the lookout for updates.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

News You Can Use: Tenth Circuit reaffirms that restitution must be based on the offense of conviction, not relevant conduct.

The Mandatory Victim Restitution Act authorizes restitution only for the loss caused by the specific conduct that is the basis of the offense of conviction.  United States v. Mendenhall, 945 F.3d 1264 (10th Cir. 2019).

Restitution can be an afterthought at sentencing.  The parties are, understandably, far more concerned with incarceration.  However, appropriately limiting restitution is important because a large restitution order can follow a client for 20 years and make it difficult for them to get back on their feet, and stay there.  See 18 U.S.C. § 3613.

As the Tenth Circuit has recognized, “The most important thing at sentencing is determining whether the defendant will be incarcerated and, if so, for how long. Other matters, such as restitution and conditions of supervised release, are, appropriately, of secondary concern. But they are not inconsequential and deserve focused attention.” United States v. Martinez-Torres, 795 F.3d 1233, 1234 (10th Cir. 2015)

Recently, in United States v. Mendenhall, the Tenth Circuit reiterated a fundamental aspect of restitution under the Mandatory Victim Restitution Act (MVRA): a district court can order restitution only to a victim of an offense of conviction, and “only for loss caused by the specific conduct that is the basis of the offense of conviction.”  Mendenhall, 945 F.3d at 1267.

In Mendenhall, an indictment charged the defendant with unlawful possession of three specific stolen firearms, each identified by serial number.  The firearms were stolen from a pawnshop during a burglary in which a total of 62 firearms were stolen, and substantial evidence implicated Mendenhall in the burglary.  Only a dozen or so firearms, including the three identified in the indictment, were recovered and returned to the pawnshop.

The district court ordered Mendenhall to pay the pawnshop restitution in the amount of $33,763.23 for “the loss of firearms not recovered, wages for employees to conduct inventory, loss of revenue for closing of business . . . and cleanup/repairs.”  Id. at 1266.  Mendenhall did not object to the restitution order.  On plain error, the Tenth Circuit reversed.

The Tenth Circuit explained that “[d]istrict courts lack inherent powers to order restitution.”  Id.  They may only do so as authorized by statute, and the MVRA authorizes restitution only to “a person directly and proximately harmed as a result of the commission of an offense.”  Id. (quoting 18 U.S.C. § 3663A(a)(2)).  Moreover, the Supreme Court has interpreted this language as limiting restitution “only for losses caused by the conduct underlying the offense of conviction.”  Id. at 1267 (quoting Hughey v. United States, 495 U.S. 411, 416 (1990)).  Based on these limitations, Mendenhall did not owe any restitution at all.

The elements of Mr. Mendenhall’s offense of conviction were: (1) knowing possession of the firearms; (2) interstate commerce; and (3) knowing or having reasonable cause to believe the firearms were stolen.  “None of these elements caused the losses cited as the basis for the restitution order” because the “three firearms listed in the indictment were recovered and returned.”  Id. at 1268.  That Mendehall did not object to the PSR’s assertion that he was involved in the burglary was irrelevant: “Restitution must be based on the offense of conviction, not relevant conduct.”  Id. (quoting United States v. Frith, 461 F.3d 914, 916 (7th Cir. 2006)).

Finally, the Tenth Circuit panel was reluctant to find that the fourth prong of the plain error test was met—that is, whether the error “seriously affects the fairness, integrity, or public reputation of judicial proceedings”—calling it “not an easy question in a case like this one where everybody knows that Mendenhall stole the firearms and pocketed the cash from the theft.”  Id. at 1270.  However, it acknowledged that a restitution order that exceeds the amount authorized by statute “amounts to an illegal sentence,” just as a term of imprisonment above the stat max does.  Accordingly, the Tenth Circuit was bound by precedent to conclude that all four prongs of plain error were met, and it reversed the order of restitution.

Takeaways

  • Restitution can be very burdensome for our clients.
  • Because restitution is a secondary concern for everyone—the defense, the government, probation, and the court—the orders often contain errors.
  • Restitution can be ordered only for loss caused by the specific conduct that is the basis of the offense of conviction. In other words, restitution must be based on the offense of conviction, not relevant conduct.
    • Caveat: in a plea agreement, a defendant can agree to restitution beyond what is otherwise authorized by statute.
  • An excessive restitution order is an illegal sentence

Resource: Changes to Local Rules of Practice for the District of Colorado, Effective December 1, 2019

Just a reminder that the United States District Court for the District of Colorado has issued revised Local Rules of Practice effective December 1, 2019.  You can visit the Local Rules page here.

The Criminal Rules start at page 30.

One of the most notable changes is to the rule on Motions for Departure or Variance (D.C.COLO.LCrimR 32.1(c)).  It now provides: “A motion for departure or variance shall not be included in a sentencing statement or other sentencing-related document. A motion for departure or variance shall be filed as a separate motion.”

The purpose of this rule change is to make sure a sentencing statement does not implicitly or explicitly move for a variance or departure.  The sentencing statement can refer to such a motion, but cannot, itself, be the vehicle for the request. Put simply: in the District of Colorado, file your sentencing statements and your departure or variance motions separately.

Relatedly, U.S. District Judges Christine M. Arguello, William J. Martínez, R. Brooke Jackson, and Daniel D. Domenico have published revised criminal and civil practice standards. Be sure to check those out here.

Resource and Practice Tip: Update on Granted First Step Act Sentence Reductions and Some Thoughts on the Compassionate Release Eligibility Framework

 

By Ashley Cordero

Ashley is a fall intern at the Office of the Federal Public Defender for the Districts of Colorado and Wyoming. She is a second-year law student at the University of Denver, Sturm College of Law. Prior to law school, she managed an employment program for previously incarcerated individuals in her hometown Los Angeles, California. She hopes to remain in Colorado to pursue a career in public defense.

FIRST STEP ACT UPDATE

Summary of the USSC Resentencing Provisions Retroactivity Data Report

In October 2019, the U.S. Sentencing Commission released the Retroactivity Data Report collecting data on sentence reductions granted pursuant to Section 404 of the First Step Act. Section 404 expanded the pool of individuals eligible for a sentence reduction for previous crack-cocaine convictions by retroactively applying sections 2 and 3 of the Fair Sentencing Act of 2010. Now, under the First Step Act, the courts were to consider granting a sentence reduction as if the Fair Sentencing Act was in effect when the defendant was originally sentenced.

Sections 2 and 3 increased the quantity of crack cocaine that triggered mandatory minimum penalties and eliminated mandatory minimum sentences for simple possession of crack cocaine. This retroactive application of the Fair Sentencing Act guidelines had the potential to ameliorate some of the racial inequity stemming from the disparate crack-cocaine conviction rates between Black (83.0%) and White (5.8%) defendants. The report includes motions granted through September 30, 2019.

Key Findings from the USSC Retroactivity Report

  • Nationwide, district courts have granted 1,987 motions for sentence reduction under section 404. The Tenth Circuit has granted 1.7% (35) of these motions. The Districts of Colorado and Wyoming have granted four sentence reductions within the Tenth Circuit.
  • Of the defendants granted a sentence reduction, 91.2% are Black, 4.2% Hispanic, 3.8% White.
  • 98% of defendants granted a sentence reduction are male.
  • Nationally, on average defendants saw a 26.2% decrease from their current sentence. In the Tenth Circuit, defendants saw an average 30% decrease.

COMPASSIONATE RELEASE ARGUMENTS IN 924(c) CASES

Background

Section 403 of the First Step Act eliminated the archaic stacking provision that previously mandated minimums for individuals who were convicted of possessing a firearm in the commission of a crime of violence or drug trafficking offense –even if the charges arose from a singular criminal incident. The First Step Act revised 18 U.S.C. § 924(c)(1)(C) by providing that the higher penalty for a “second or subsequent count of conviction” under section 924(c) is triggered only if the defendant has a prior section 924(c) conviction that has become final.  See generally USSC First Step Act Summary. However, Section 403 was not made retroactive. This prompts the question, where do defendants with previous mandatory minimums under 924(c) fall within the First Step Act compassionate release eligibility framework?

Federal courts may reduce a defendant’s sentence if they find an “extraordinary and compelling reason” to warrant a reduction and that reduction is consistent with policy statements issued by the Sentencing Commission. 18 U.S.C. § 3582(c)(1)(A)(i) (2018). This is known as “compassionate release.”

The Sentencing Commission Policy statement dated November 1, 2018, lists four eligibility criteria including “other reasons” where there exists an “extraordinary and compelling reason other than or in combination with reasons” described in the report. While the report has not been updated since the passage of the First Step Act, district courts continue to refer to the policy statement as helpful guidance.  United States v Bucci, 2019 WL 5075964, at *1 (D. Mass. Sept. 16, 2019); See also United States v Shields, 2019 WL 2645028, at *2 (N.D. Cal. June 27, 2019).

While a sentence reduction must be consistent with the Commission’s policy statements, federal courts are not bound to these prescriptive categories. Courts have not found the policy report circumstances list to be exhaustive. See United States v Overcash, 2019 WL 1472104 (April 3, 2019) (stating the court may make an independent determination). Even if eligibility is established, reduction is not required. Federal courts have the discretion to reduce the defendant’s sentence, considering the 3553(a) sentencing factors to make their determination. See United States v Cole, 2019 WL 3406872, *5 (N.D. Ind. July 29, 2019).

If Making Compassionate Release Argument, Consider Reading Shon Hopwood’s article, Second Looks and Second Chances

  • Shon Hopwood is an Associate Professor of Law at Georgetown Law. In June 2019, as part of a series on federal sentencing, Cardozo Law Review published his essay, “Second Looks and Second Chances,” which outlines the history of second looks provisions and suggests litigation tactics for certain defendants, such as those with previous 924(c) convictions.
  • Before the First Step Act, Congress did not define what constituted an “extraordinary and compelling reason” for sentence reduction. Congress intended this provision to act as a safety valve.
  • There is no indication that Congress intended to limit the compassionate release safety valve to only medical or elderly release. If a defendant can establish extraordinary and compelling circumstances, compassionate release could be used to justify a reduction of an unusually long sentence.
  • By eliminating the stacking provision, Congress has acknowledged that the original sentencing scheme for 924(c) was overly punitive and unfair.
  • Unlike section 404 which established categorical eligibility, section 403 was not retroactive. Those sentenced under the stacking provision and now seeking relief under compassionate release must establish “extraordinary and compelling reasons” individually.
  • However, simply because Congress did not create a retroactive categorical eligibility for sentence reduction does not suggest that Congress foreclosed other options of relief.
  • Consider using the “other reasons” provision to demonstrate that the defendant has a compelling and extraordinary reason for compassionate release.

 

 

 

News You Can Use: Tenth Circuit issues helpful decision limiting restitution in conspiracy cases

The Tenth Circuit recently issued an important decision in United States v Anthony concerning restitution in conspiracy cases. The facts are unlikely to reoccur very often, but the opinion contains some broadly applicable and helpful points of law.

Background

Mr. Anthony was convicted after trial of conspiracy to entice a child.  The evidence showed that he called an “escort service” which sent two minors to his place of business. He touched them both and had sex with one of them.  The girls had been ensnared by a pimp, and Mr. Anthony was one of over a hundred customers they had seen.

In ordering restitution, the district court held Mr. Anthony accountable for all the harm the girls suffered during the time they spent working for the pimp.  One of the girls had earlier been involved with another pimp in an enterprise wholly unrelated to the later one.  The court made no attempt to disaggregate the harm caused during the girl’s involvement with the first pimp from the harm caused during her involvement with the second.

The Decision

18 U.S.C. § 2259 generally requires proof of “but for” causation

Mr. Anthony’s first claim on appeal was that the district court should have disaggregated the harm caused during the first enterprise.  The circuit agreed.  And along the way, it ruled that 18 USC 2259, the statute governing restitution for most federal sex crimes, requires a showing of “but for” causation.  In doing so, the court rejected the government’s claim that the statute allowed liability based on a theory of multiple independent causes, which would have greatly expanded restitution liability.  Using but for causation–a familiar concept in restitution analysis generally–resolution of the claim was easy.  Mr. Anthony was obviously not a but for cause of the harms that were caused before his crime was even committed.

Restitution is limited to the harm established by the trial evidence

Mr. Anthony’s second claim was that the court shouldn’t have held him accountable for all the harm that happened during the time the girls were involved with the second pimp.  This argument rested on conspiracy law.  Conspiracy, of course, is an agreement, and he argued that his only agreement, if any, was to have sex with the girls on that one night.  The circuit also agreed with this argument (although Mr. Anthony ultimately lost because the claim wasn’t preserved).  The circuit had long held that a conspiracy conviction makes a defendant “liable in restitution for all losses that proximately result from the conspiracy itself, including losses attributable to coconspirators.”  And historically, the court had looked to the indictment to define the scope of the conspiracy and hence a defendant’s restitution liability.   But here the court held, at least in the case of a trial, that restitution has to be limited to what the evidence actually proved, not what was alleged in the indictment. 

Conspiracy liability is limited to the defendant’s own agreement

Here, the evidence only showed, at most, that Mr. Anthony joined a conspiracy to obtain the girls for sex on the night he met with them.  The reason?  Mr. Anthony’s sole purpose was to “have sex.”  Although he likely knew that his decision to pay for sex furthered the overall enterprise, that knowledge was not enough to make him a conspirator in that enterprise.  As the circuit put it, “mere knowledge” that his actions furthered an illegal enterprise, even in conjunction with his participation in a small part of the enterprise, doesn’t by itself establish that Anthony “joined in the grand conspiracy.”  Id. 

Key Takeaways

  • Be sure to take a careful look at restitution in sex offense cases.  Except child pornography crimes, Anthony teaches that restitution in the sex offense context is limited to harm that would not have occurred but for the defendant’s offense.
  • The evidence, not the indictment, controls, at least when there’s a trial. Restitution is limited to harm established by the evidence at trial, even if the indictment’s allegations are broader.
  • Traditional concepts of conspiracy liability apply in the restitution context. Conspiracy liability (including for restitution) is limited to the defendant’s own agreement, even if she knows of the wider conspiracy.

News You Can Use: Tenth Circuit holds special condition of supervised release banning internet use, unless preapproved by probation, is greater deprivation of liberty than necessary under 18 U.S.C.§ 3583(d)

Individuals convicted of child pornography offenses in the District of Colorado have typically been subject to a special condition of supervised release aimed at controlling their internet use; it states: “The defendant’s use of computers and Internet access devices must be limited to those the defendant requests to use, and which the probation officer authorizes.” This condition essentially prevents individuals on supervised release from using any computer or “Internet access device” by default, unless and until their probation officer gives them permission to do so—and there’s nothing to say that probation ever has to give them permission.

This week, in United States v. Blair, the Tenth Circuit, over a dissent by Judge Baldock, held this condition is a greater deprivation of liberty than reasonably necessary under 18 U.S.C. § 3583(d) because “it allows the probation office to completely ban the defendant’s use of the internet by failing to place any restraints on a probation officer’s ability to restrict a defendant’s Internet access.” 2019 WL 379368, at *1.  Notably, the majority reached its decision, notwithstanding arguably aggravating factors about Mr. Blair’s offense, which were highlighted by the dissent.

The Tenth Circuit held: “the special condition would prohibit [Mr. Blair’s] use of a computer for benign activities, such as writing a novel or checking the weather, without first obtaining permission from his probation officer.” Id. at *6. Moreover, the condition gives the probation office “unfettered discretion” to decide when to lift the ban—without anything to “suggest[] that the probation office [would] allow Blair any reasonable use of the internet.” Id. at *6-7.  The Tenth Circuit vacated the special condition and remanded to the district court with instructions to “amend the special condition of supervised release to bring it into compliance with the demands of [18 U.S.C.] sections 3553 and 3583.”

So how is the district court supposed to bring this special condition into compliance with the sentencing and supervised released statutes?  The Tenth Circuit has some ideas.

The probation officer is “limited to imposing only those restrictions that are reasonably calculated to prevent the defendant from using a computer or the Internet to access, store, produce, or send child pornography in any form; to provide necessary restrictions to facilitate a defendant’s correctional treatment so that he may be rehabilitated; and to protect the public from any further crimes of the defendant.” Id. at *8-9. The Court further indicated that a district court would have to find “extraordinary circumstances” existed in order to justify a “blanket or total ban” on internet usage, which nobody had argued applied in Mr. Blair’s case. Id. at *9 n.6.

Takeaways

  •  No categorical internet/computer bans. The district court cannot ban defendants—including those convicted of possessing child pornography—from using the internet or computers, absent extraordinary facts not present in the typical case. Nor can a district court order a condition that allows probation to impose such a ban. Rather, any restriction on internet or computer use has to be tailored to preventing further child pornography crimes or facilitating the defendant’s rehabilitation.
  • Challenge overbroad conditions of supervised release at sentencing.
    • The law is on our side to assert this challenge at sentencing.  As the Tenth Circuit explains in Blair: “Although district courts have broad discretion to prescribe conditions on supervised release…that discretion is limited by 18 U.S.C. § 3583(d) and 18 U.S.C. § 3553(a).”
    • The government’s argument that it’s better to wait until defendant is actually on supervision didn’t go anywhere with the court of appeals.  The Tenth Circuit rejects out of hand the government’s suggestion “that the proper time for [a defendant] to raise his desire to use computers and the Internet for harmless purposes is down the road when he meets with his probation officer and discovers how the probation office intends to enforce the condition.” Id. at *8. After all, the prohibition on overbroad conditions contained in 18 U.S.C. § 3583 “directly govern[s] the district court’s obligations in imposing the supervised release conditions” at sentencing. Id.
    •  Another reminder that preservation matters.  Trial counsel objected to the internet-use ban in the district court, clearing the path for a meaningful victory in the court of appeals.
  • Overly restrictive conditions matter because violating them could result in  more prison time. As the Tenth Circuit acknowledges in a footnote, people have gone to prison for violating overbroad conditions of supervised release in seemingly innocuous ways—such as by checking their email or logging into Facebook. see id. at *8 n.5. By paying attention to these issues at sentencing, you may be able to save your client some jail time down the road.
  •  Don’t be scared away by an appellate waiver – make sure it bars your issue before assuming otherwise.  Mr. Blair signed a plea agreement with an appeal waiver, but it was unenforceable here, allowing the appeal to proceed.  As the Tenth Circuit noted, the government conceded that “this appeal falls outside the scope of the waiver” because Blair received a sentence based on an offense level higher than that anticipated by the agreement.