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LATEST NEWS

August 4, 2010

President Obama Signs Historic Crack Reform Law

Yesterday, President Obama signed the Fair Sentencing Act of 2010, enacting sweeping reforms to federal crack cocaine laws, reducing sentences for crack cocaine offenses. The 100 to 1 sentencing ratio has been reduced to 18 to 1. Twenty-eight grams of crack cocaine will now trigger a five-year prison sentence and 280 grams of crack will trigger a ten-year sentence. The five-year mandatory minimum for simple possession of crack cocaine has also been eliminated. These reforms are not retroactive.

For details on the Fair Sentencing Act of 2010, including the issue of retroactivity, see the FAMM website and the Sentencing Law and Policy Blog.

July 22, 2010

Sentencing Commission Announces Proposed Priorities for 2011

The Sentencing Commission has issued notice and request for public comment on possible priority policy issues for the amendment cycle ending May 1, 2011. Tentative priorities include study of and/or reporting on: (1) sentencing practices post-Booker; (2) statutory mandatory minimum penalties; (3) arms trading violations including consideration of amendments to §2M5.2 or other guidelines in Parts K or M of Chapter Two as appropriate; (4) implementation of the directive in section 10606(a)(2)(A) of the Patient Protection and Affordable Care Act regarding health care fraud offenses; (5) cocaine sentencing policy, including consideration of amending the Drug Quantity Table in §2D1.1 across drug types; (6) child pornography offenses; (7) departures within the guidelines; (8) statutory and guideline definitions of "crime of violence", "aggravated felony", "violent felony", and "drug trafficking offense"; (9) possible amendment to provide a reduction in the offense level for certain deportable aliens who agree to a stipulated order of deportation; (10) the guidelines and policy statements pertaining to supervised release; (11) alternatives to incarceration; (12) resolution of circuit conflicts on interpretations of the guidelines; (13) guidelines pertaining to environmental crimes, with particular consideration of whether the fine provisions in Part C of Chapter Eight should apply to such offenses.

June 29, 2010

Supreme Court Holds Second Amendment Applicable to States; Grants Cert to Decide Whether Post-Sentencing Rehabilitation Can Be Used as a Sentencing Factor Under 18 U.S.C. § 3553(a)

Yesterday, the Court issued its long-awaited decision in McDonald v. Chicago (No. 08-1571), holding that the Second Amendment right recognized in Heller to keep and bear arms in self defense does apply to state and local governments. A sample of analyses of the McDonald opinion can be found at this post and this post on SCOTUSblog, and this Sentencing Law and Policy blog post.

In other news of interest to federal criminal defense practitioners, the Court granted cert in the sentencing case of Pepper v. United States (No. 09-6822). (See Brief in Opposition.) According to the docket sheet, the questions presented in the case are as follows:

Whether a federal district judge can consider a defendant's post-sentencing rehabilitation as a permissible factor supporting a sentencing variance under 18 U.S.C. § 3553(a) after Gall v. United States?

Whether as a sentencing consideration under 18 U.S.C. § 3553(a), post-sentencing rehabilitation should be treated the same as post-offense rehabilitation.

When a district court judge is removed from resentencing a defendant after remand, and a new judge is assigned, is the new judge obligated under the doctrine of the "law of the case" to follow sentencing findings issued by the original judge that had been previously affirmed on appeal?

For further comment on Pepper see this Sentencing Law and Policy blog post.

In addition to its actions yesterday, the Supreme Court today granted cert, reversed and remanded in a capital case, Sears v. Upton (No. 09–8854). According to an expert who testified during state post-conviction proceedings, Demarcus Sears has severe cognitive impairments. Although the state postconviction court found that Sears' trial counsel was constitutionally deficient for failing to bring to light Sears' cognitive impairments during the sentencing, the state postconviction court found itself unable to assess whether counsel's inadequate investigation might have prejudiced Sears. The Supreme Court found this conclusion unacceptable. In a per curiam opinion, the Court held that the state court "failed to apply the correct prejudice inquiry we have established for evaluating Sears' Sixth Amendment claim. We therefore grant the petition for writ of certiorari, vacate the judgment, and remand for further proceedings not inconsistent with this opinion."

June 24, 2010

Supreme Court Issues Opinions in "Honest Services" Fraud Cases

On June 24 the Supreme Court issued opinions in the three "honest services" fraud cases before it. In Skilling v. United States (No. 08 1394) the Court affirmed in part, reversed in part, and remanded, holding that the "honest services statute covers only bribery and kickback schemes and that pre trial publicity and community prejudice did not prevent Skilling from having a fair trial. In Black v. United States (No. 08 876), the Court held that its opinion in Skilling on the scope of the honest services law rendered the jury instructions in Black's case incorrect. In Weyhrauch v. United States (08 1196), the Court vacated and remanded under Skilling, in a one paragraph per curiam opinion.

For analysis of these opinions see this SCOTUSblog post.

In another opinion of interest to criminal defense practitioners, Magwood v. Patterson (No. 09 158), the Court held that when a criminal defendant succeeds in having his original sentence overturned, a later habeas petition challenging his new sentence should be treated as a first petition (not as a "second or successive" petition), even if it raises grounds that could have (but were not) made against the original sentence.

June 21, 2010

Supreme Court Issues Multiple Opinions, Including Dillon Crack Cocaine Retroactivity Ruling

On June 17 and again on June 21 the Supreme Court issued opinions in several cases of interest to federal criminal defense practitioners.

In Dillon v. United States (No. 09-6338), issued on June 17, the Court affirmed the judgment of the Third Circuit, holding that Booker does not apply to sentencing modifications under 18 U.S.C. § 3582(c)(2).

Percy Dillon had moved for a sentence reduction after the crack cocaine guidelines were amended, arguing both for the two-level reduction set forth in the amended guidelines as well as a sentence below the amended guideline range based on application of the 3553(a) factors. The Third Circuit held that Booker did not apply to section 3582 sentencing modifications; instead, the court treated the amended guideline range as mandatory and held that the defendant was only eligible for the two-level reduction.

In affirming the Third Circuit's judgment, the Supreme Court (in a 7-1 decision written by Justice Sotomayor) first determined that "Section 3582(c)(2)'s text, together with its narrow scope, shows that Congress intended to authorize only a limited adjustment to an otherwise final sentence and not a plenary resentencing proceeding." Based on this determination, "we conclude that proceedings under that section do not implicate the interests identified in Booker." For further analysis of Dillon see this SCOTUSblog post.

In another decision issued on June 17, City of Ontario, et al., v. Quon, et al.(No. 08-1332), the Court held that the search of a police officer's text messages to his colleagues and to a woman with whom he was having an affair was reasonable, and therefore the officer's Fourth Amendment rights were not violated. For more on Quon see this SCOTUSblog post.

On June 21 the Court issued an opinion in Holder v. Humanitarian Law Project (No. 08-1498; 09-89), affirming in part, reversing in part, and remanding on a 6-3 vote. The Court held that the federal material-support statute is constitutional as applied to the particular kinds of support that the parties in this case seek to provide to foreign terrorist organizations. The Court concludes that, as applied to these individuals and groups, the statute does not violate the free speech clause of the First Amendment. For more on the opinion see this SCOTUSblog post.

Also on June 21, the Court granted cert in Walker v. Martin (No. 09-996), to address whether, in federal habeas corpus proceedings, a state law under which a prisoner may be barred from collaterally attacking his conviction when the prisoner "substantially delayed" filing his habeas petition is "inadequate" to support a procedural bar because (1) the federal court believes that the rule is vague and (2) the state failed to prove that its courts "consistently" exercised their discretion when applying the rule in other cases.

June 16, 2010

Supreme Court Issues Opinions Addressing Mandatory Restitution for Crime Victims, Equitable Tolling of AEDPA, and Aggravated Felonies Under Immigration Law; Grants Cert in Habeas Case

On June 14th the Court issued opinions in three cases and granted cert in one case of interest to federal criminal defense practitioners. In Dolan v. United States (No. 09-367), the Court held: "a sentencing court that misses the 90-day deadline [as set forth in18 U. S. C. §3664(d)(5)] nonetheless retains the power to order restitution — at least where, as here, the sentencing court made clear prior to the deadline's expiration that it would order restitution, leaving open (for more than 90 days) only the amount."

Petitioner Brian Dolan plead guilty to federal assault charges stemming from a fight on an Indian reservation. Although the probation office and the government's victim advocate raised the prospect of having Dolan pay restitution for injuries sustained by the victim, information regarding the scope of restitution was not available before Dolan was to be sentenced. On the date of Dolan's sentencing, the district court therefore sentenced Dolan to twenty-one months in prison, but left "the question of restitution open-ended because we don't have a good number at this point."

A complete accounting of the victim's medical bills was not submitted until sixty-seven days after Dolan was sentenced. The district court did not order restitution until ninety-two days after expiration of Section 3664(d)(5)'s ninety-day window. In an appeal to the Tenth Circuit, Dolan challenged the district court's authority to enter the award after the ninety-day window had passed, but the court of appeals affirmed the district court's restitution award.

The statute in question provides that "the court shall set a date for the final determination of the victim's losses, not to exceed 90 days after sentencing." 18 U. S. C. §3664(d)(5). In affirming the Tenth Circuit's judgment, the Supreme Court reviewed its handling of similar questions in the past, and determined that the deadline in the instant case fell within the category of a deadline that "seeks speed by creating a time-related directive that is legally enforceable but does not deprive a judge or other public official of the power to take the action to which the deadline applies if the deadline is missed." Under this particular type of limitation, the Court concluded, "[t]he fact that a sentencing court misses the statute's 90-day deadline, even through its own fault or that of the Government, does not deprive the court of the power to order restitution."

In Holland v. Florida (No. 09-5327) the Court held that Section 2244(d) of AEDPA, which requires state prisoners to file their federal habeas petitions within one year after their direct appeals become final, is subject to equitable tolling. For further analysis of the opinion see SCOTUSblog.

The Court's opinion in Carachuri-Rosendo v. Holder (No. 09-60) bears on the immigration consequences of conviction. There, the Court held that second or subsequent crimes of possession of drugs are not aggravated felonies under federal immigration law when the underlying state conviction is not based on the fact that there was a prior conviction.

Lastly, the Court granted cert in Cullen v. Pinholster (No. 09-1088), in which it will decide the following issues: (1) whether it is appropriate under § 2254 for a federal court to conclude that a state court's rejection of a claim was unreasonable in light of facts that an applicant could have but never alleged in state court; and (2) what standard of review is applicable to claims of ineffective assistance of counsel.

June 7, 2010

Supreme Court Holds That Bureau of Prisons Has Been Correctly Calculating Good Time Credits on Federal Criminal Sentences

On June 7 the Court issued its opinion in Barber v. Thomas (No. 09-5201), in which it held that the calculation method used by the Bureau of Prisons to determine the amount of "good time" earned on federal criminal sentences is lawful. The case involved the interpretation of 18 U.S.C. § 3624(b)(1), which states:

[A] prisoner who is serving a term of imprisonment of more than 1 year other than a term of imprisonment for the duration of the prisoner's life, may receive credit toward the service of the prisoner's sentence, beyond the time served, of up to 54 days at the end of each year of the prisoner's term of imprisonment, beginning at the end of the first year of the term, subject to determination by the Bureau of Prisons that, during that year, the prisoner has displayed exemplary compliance with institutional disciplinary regulations. ...[C]redit for the last year or portion of a year of the term of imprisonment shall be prorated and credited within the last six weeks of the sentence.

The BOP's method, which the Court upheld, interprets "term of imprisonment" in the statute to mean entire imposed sentence" in some places, but "time actually served" when calculating good time. The BOP sets earned time aside at the end of each 365-day period. When the time remaining in a sentence minus earned time equals less than one year, the BOP applies a 54/365 ratio to prorate that last year and determine the prisoner's release date.

June 3, 2010

Case Compensation Maximums for CJA Service Providers Increase as of May 27, 2010

On May 27, 2010, an amendment to the Criminal Justice Act, 18 U.S.C. § 3006A, raised the waivable case compensation maximum amounts applicable to providers of investigative, expert, and other services. It also provides a formula for increasing these threshold amounts in future years to account for the effects of employment costs without the need for further legislation. Effective May 27, 2010, the case compensation maximum amount of $500, which applies absent prior judicial authorization, was raised to $800. The case compensation maximum amount of $1,600, which applies in non-capital cases where there has been prior authorization, is raised to $2,400. View the AO Memorandum for details of the increase.

June 1, 2010

Supreme Court Holds That Failure to Register Under SORNA Applies Only to Post-Enactment Travel; Further Curtails Miranda Right to Remain Silent

In Carr v. United States (No. 08-1301), the Court held that the Sex Offender Registration and Notification Act (SORNA) does not apply to sex offenders whose interstate travel occurred before the Act went into effect.

Among its provisions, SORNA established a federal criminal offense covering, inter alia, any person who (1) "is required to register under [SORNA]," (2) "travels in interstate or foreign commerce," and (3) "knowingly fails to register or update a registration." 18 U. S. C. §2250(a). At issue in Carr was whether §2250 applies to sex offenders whose interstate travel occurred prior to SORNA's effective date and, if so, whether the statute violates the Constitution's prohibition on ex post facto laws. Because the court held that the statute itself cannot be interpreted to cover pre-SORNA travel, the Court did not reach the ex post facto question.

In Berghuis v. Thompkins (08-1470), the Court upheld the state court decision rejecting the claim of a violation of Miranda v. Arizona. Thompkins' silence while being questioned by police did not amount to an invocation of his Miranda right to remain silent.

At the beginning of Thompkins' interrogation, one of the detectives presented him with a Miranda "Notification of Constitutional Rights and Statement" form. The detective read four of the five statements on the form aloud, and asked Thompkins to read the fifth aloud. Thompkins declined to sign the form, and there was conflicting evidence regarding whether Thompkins verbally confirmed that he understood the rights listed. Officers then began the interrogation. At no point during the interrogation did Thompkins expressly say that he wanted to remain silent, that he did not want to talk with the police, or that he wanted an attorney. However, Thompkins was largely silent during the interrogation, which lasted about three hours, occasionally providing a few short responses such as "yeah," "no," or "I don't know." About 2 hours and 45 minutes into the interrogation, one of the detectives asked Thompkins several questions about his belief in God, culminating in, "Do you pray to God to forgive you for shooting that boy down?" Thompkins answered "Yes" and looked away. Thompkins refused to make a written confession, and the interrogation ended about 15 minutes later.

Thompkins was charged with first-degree murder and other offenses. He moved to suppress the statements made during the interrogation, arguing that he had invoked his Fifth Amendment right to remain silent, requiring police to end the interrogation at once, that he had not waived his right to remain silent, and that his inculpatory statements were involuntary. The trial court denied the motion. The Michigan state courts affirmed the conviction; in habeas proceedings the Sixth Circuit granted Thompkins' petition.

In reversing the Sixth Circuit, the Supreme Court first held that a defendant's invocation of the right to remain silent must be "unambiguous." Because Thompkins never actually said that he did not want to talk to the police, the Court concluded that his assertion of the right to silence was ambiguous. The Court next determined that Thompkins had knowingly and voluntarily waived his right to silence. Here, the Court reasoned, a valid waiver could be implied by the circumstances: "Where the prosecution shows that a Miranda warning was given and that it was understood by the accused, an accused's uncoerced statement establishes an implied waiver of the right to remain silent." According to the Court, "The fact that Thompkins made a statement about three hours after receiving a Miranda warning does not overcome the fact that he engaged in a course of conduct indicating waiver. Police are not required to rewarn suspects from time to time." Lastly, the Court rejected the argument that the police were required to obtain a waiver of Thompkins's Miranda rights before commencing the interrogation.

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