The Tenth Circuit Speaks to Deportability as a Basis for Variance

The opinion issued today in Sanchez-Leon the Tenth Circuit took up (among other issues) whether deportability is a factor that should be considered by the sentencing court.

District Court:  Mr. Sanchez-Leon entered into a plea agreement to eight counts, “including various counts of drug possession with intent to distribute, conspiracy, aiding and abetting, and possession of a firearm during a drug crime.”  The PSR calculated a U.S. Sentencing Commission Guidelines range of 295 to 353 months.  However, at his sentencing hearing Mr. Sanchez-Leon’s counsel and the government asked for 120 month sentence agreed upon in plea agreement relying on “Mr. Sanchez-Leon’s family, employment potential, age, and deportability as reasons to impose 17.5 years.”

Unconvinced, the district court stated: “[N]obody has filed a motion for a variant sentence, and I don’t understand what the basis is for a variant sentence here.”  The Government responded that age and deportation weighed in favor of 17.5 years. Defense counsel responded by again discussing Mr. Sanchez-Leon’s family, his age upon release, and his deportability. Defense counsel presented additional factors: Mr. Sanchez-Leon had no criminal history, some of his co-defendants received shorter sentences, and the Guidelines for methamphetamine possession and distribution are harsh.  The court then rescheduled sentencing so the government could better articulate their reasons for downward variance. 
After assessing the government’s more extensive variance argument, the court remained unconvinced, particularly noting that age and deportability were not permissible bases for variance.  Concluding, “the sentence imposed here should be a guideline sentence . . . [and] there is no warranted justification for a disparity between Mr. Sanchez and other similarly situated defendants found guilty of similar conduct with similar criminal histories,” the court sentenced Sanchez to 295 months. 
Tenth Circuit: “The district court’s avoidance of deportability due to Castro-Rivas does not square with Gall and Smart. By ruling that it could not consider the “ordinary” factor of deportability in its consideration of the motion for variance, the district court imposed a greater burden on Mr. Sanchez-Leon than the law required.”  Though the court agreed with the District Court’s decision to disregard age. 
The opinion also provides a good summary of the latest standards of review for substantive and procedural reasonableness.  Click here for the full opinion, or in Library > Sentencing Opinions. 

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.

Early Termination of Supervised Release

In May 2009, the Judicial Conference issued an opinion stating that courts have the discretionary authority to end supervised release early (after one year) under §3583(e)(1) after giving notice to the government of the proposed modification.

To view the Judicial Conference Opinion and the Motion to Terminate Early go to Library > Early Termination of Probation or Supervised Release


Redeeming America’s Criminal Justice System: Proposed Legislation Would Be an Important Step Toward Reform

“Being in a room over 21 hours a day is like a waking nightmare, like you want to scream but you can’t. You want to stretch your legs, walk for more than a few feet. You feel trapped. Life becomes distorted. You shower, eat, sleep, and defecate in the same tiny room. In the same small sink, you ‘shower,’ quench your thirst, wash your hands after using the toilet, and warm your cold dinner in a bag. I developed techniques to survive. I keep a piece of humanity inside myself that can’t be taken away by the guards . . . There’s no second chance here.”

– Lino Silva

Every day in the United States of America, children are held in solitary confinement or other forms of isolation. This practice has been shown to cause physical, psychological, and developmental harm, and increased risk of suicide. Only six states currently have any type of restriction on the use of juvenile solitary confinement, but a bill introduced by Senator Rand Paul (R-KY) on Tuesday, July 11, 2014, would ban the practice and enact other much-needed reforms of our criminal justice system.

The Record Expungement Designed to Enhance Employment Act of 2014 (the REDEEM Act), cosponsored by Senator Cory Booker (D-NJ), would prohibit the isolation of children in juvenile detention centers except as a temporary response to behavior of a juvenile that poses a serious and immediate risk of physical harm. It would require juvenile detention facilities to attempt to use less restrictive techniques before resorting to isolation and cap the amount of time a child may be isolated at three hours. It would also require one-on-one supervision and access to hygienic and mental health services during the brief time the child is isolated.

While a prohibition against juvenile solitary confinement might strike some as the most important reform proposed by the legislation, as its short title suggests, this is but a secondary goal. The bill would also enact reforms with regard to people’s criminal and juvenile delinquency records. For offenses that are not violent or sexual in nature, the REDEEM Act would provide:

– Records of offenses committed before the person turned 15 shall be automatically expunged when the person turns 18.

– Records of juvenile offenses shall be automatically sealed 3 years after the completion of the entire sentence, provided the person has no subsequent convictions, adjudications, or pending criminal or juvenile delinquency proceedings.

– Juveniles may petition the courts for sealing or expungement of records, even if the preceding two conditions are not met.

– Any person, regardless of age, shall have the right to petition the court to seal records of criminal proceedings against him or her one year after the completion of the entire sentence, or on the day the case is disposed of if no conviction or sentence is imposed.

– The court shall appoint counsel for any petitioner under the age of 18 to assist with the expungement or sealing hearing.

– The court may appoint counsel for any petitioner over the age of 18 if the hearing is expected to be complex or there is a high potential of adverse testimony from the government or victims.

In addition to prohibiting juvenile solitary confinement and establishing better procedures for the expungement and sealing of records, the bill would also remove barriers to public assistance for people with non-violent, non-sexual convictions and prohibit the sharing of incomplete or inaccurate records.

As approximately one in three Americans knows first-hand, any involvement with “the system,” can have long-term, even life-long, repercussions. In particular, a past felony conviction, or as it’s sometimes called, an “F on one’s report card,” can be a substantial barrier to employment. In addition, many states also bar aid for those with drug convictions.

Because of this, many people, upon release from prison, find themselves with extremely limited resources, support, and employment prospects, and become entrapped in a cycle of poverty and incarceration. The REDEEM Act seeks to strengthen America’s economy and communities by breaking the cycle and providing a path to rehabilitation for people who pose minimal risk to society.

This bill would not reach people charged or convicted of crimes of violence or crimes of a sexual nature. What it would do is implicitly acknowledge that the war on drugs is a war against ourselves, and it is time to de-escalate hostilities. As one commentator has pointed out, the REDEEM Act has an uncertain future, considering the Senate’s seeming dysfunction at the moment. But at the very least it is exciting to see a bipartisan bill aimed at criminal justice reform, and it could be a harbinger of better, more intelligent policies to come.

Surely people convicted of non-violent, non-sexual crimes who have completed their sentences deserve a chance to redeem themselves. But perhaps it is the criminal justice system itself that is most in need of redemption.

The text of the REDEEM Act can be found here.

All of the information about juvenile solitary confinement, as well the quote at the beginning of this post, are from this report by the ACLU.

Riley v. California: Supreme Court Puts Bill of Rights Over Government Interests (better late than never edition)

Brian Roche (FPD Intern, 2014)

The Fourth Amendment to the United States Constitution provides:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Given the historical context of the founding generation’s frustration over English “general warrants” and “writs of assistance,” this would seem to stand for the simple proposition that, as a general rule, the government must respect people’s privacy. Or, to state it in the alternative, the government does have the power to search a person’s property, but only after obtaining a warrant to do so based on probable cause.

Unfortunately, however, the drafters of the Fourth Amendment neglected to mention so-called smart phones. Nevertheless, in a well-written and thought-provoking opinion authored by Chief Justice John Roberts, the Supreme Court has shown uncharacteristic technological aplomb and issued a ruling that provides meaningful privacy protection without hindering law enforcement’s legitimate interest in collecting evidence and protecting officers’ safety.

As the Court put it:
“Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple-get a warrant.”

But wait, cries the government, warrants takes too long! Requiring police to get one before searching arrestees’ phones gives criminals the advantage! What if they remotely wipe the data? What if there is information on the phone about an impending threat?

Fear not, replies the Court. As the Chief Justice explains, the technology at issue here is available not just to criminals, but also to police departments and courts, and has made the process of obtaining warrants much more efficient. For example, the technology exists, and has been used in at least one jurisdiction, to allow police to email warrant requests directly to judges’ iPads and have them returned, signed, within fifteen minutes. The Court also points out that there are simple counter-measures police can use to prevent the remote wiping of phone data, such as placing the phone in a radio-wave-proof Faraday bag, removing its battery, or simply turning it off. Furthermore, if police have reasonable suspicion that there are indeed more ruffians on the way, the exigent circumstance exception still allows them to conduct a warrantless search of the phone.
In rejecting the government’s argument that a search of all data on a cell phone is “materially indistinguishable” from a search of physical items like purses and wallets, the Court observed:
“That is like saying a ride on horseback is materially indistinguishable from a flight to the moon. Both are ways of getting from point A to point B, but little else justifies lumping them together. Modern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse. A conclusion that inspecting the contents of an arrestee’s pockets works no substantial additional intrusion on privacy beyond the arrest itself may make sense as applied to physical items, but any extension of that reasoning to digital data has to rest on its own bottom.”

The Court has thereby explicitly recognized a right to privacy with regard to data, at least in cell phone searches incident to arrest. It remains to be seen what this decision could mean for governmental collection of electronic data in general, but it is heartening to hear the Supreme Court say, “the fact that technology now allows an individual to carry [vast amounts of personal] information in his hand does not make the information any less worthy of the protection for which the Founders fought.”

For the full opinion click here or go to Library>Supreme Court Cases–new

Tenth Circuit interprets “Pray that your enemies are ridiculous”

The problem in U.S. v. Medina-Copete, was not only that was the government ridiculous, but the District Court in New Mexico bought into the ridiculousness. Thankfully, the Tenth Circuit reversed the convictions of two co-defendants because the New Mexico District Court failed to make an adequate finding under FRE 702. The District Court, despite allegedly applying the correct two-step test adopted using Daubert and Kumho Tire and adopted in United States v. Nacchio, 555 F.3d 1234 (10th Cir. 2009), allowed U.S. Marshal Robert Almonte to testify as a “cultural iconography hobbyist.”

In this capacity, Almonte testified about Santa Muerte, a saint to which one of the co-defendants was allegedly praying during a traffic stop. Almonte’s insights included, “well, I think it’s hard to say exactly what Santa Muerte is, but what I found is that she would be a spirit, or some people consider her the angel of death.” Despite not being able to say exactly what Santa Muerte is, Almonte went on to testify: “[H]e prayer found in Medina’s hands, even without other evidence of criminal activity, ‘would be a very good indicator of possible criminal activity based on that one statement there about making some—some money. Absolutely.’”

The Tenth Circuit pointed out “several” errors made by the district court in allowing Almonte to testify:

First, it applied our “tools of the trade” jurisprudence to Almonte’s purported area of expertise without considering whether a prayer could qualify as a “tool of the drug trade” as we have previously used that phrase. Second, it allowed Almonte to testify as an expert based on his experience without considering the relevance or breadth of that experience, thereby eliding the “facts or data” requirement found in Rule 702(b). Third, it engaged in circular reasoning in determining that Almonte’s opinion was not an “unfounded extrapolation,” relying on other courts’ treatment of facially similar testimony in very different contexts instead of the manner in which Almonte’s techniques and methodology led to his opinion.

The Court also found that Almonte’s ridiculousness was not harmless: “The highly prejudicial nature of Almonte’s testimony leaves us with grave doubt that the outcome of the trial would have been the same without it.” Pointing out that Almonte’s testimony suggested “the presence of prayer was indicative of criminal activity,” and that the First Amendment ramification of having a law enforcement officer commenting on religious matter in a criminal case should not be ignored: “A criminal trial is no place for a theological disputation on sainthood and the power of prayer.”