CJA News: The Crack Law
August 18, 2010

The “Fair Sentencing Act of 2010”, S.1789, was signed into law by the President on August 3, 2010.  This is the legislation that changes the “crack” minimum mandatory sentences.  The law is silent on retroactivity.  DOJ and most in the legal community expect it will be applied only to conduct occurring on or after August 3, 2010.

Details
The law amends 21 U.S.C. §841(b)(1) by raising the crack threshold weight.
5 year minimum mandatory now requires 28 grams (one ounce)
10 year minimum mandatory now requires 280 grams
“Simple possession” (without intent to distribute)  no longer carries a minimum mandatory regarding crack, 21 U.S.C. §844(a).

While the law does not directly state a new ratio, based on the new minimum mandatory thresholds the ration is about 18:1.  We must still wait and see just how the Commission acts when new weight tables are published.  We do not have a date for this.

The law increases penalties for what are deemed serious cases.  The Sentencing Commission is directed to adjust the advisory Guidelines for certain conduct within 90 days, including:
Add at least 2 levels in drug cases involving use or threatened use of violence.
Increases for leadership roles with what are called “super-aggravating” factors.
Additional mitigating factor decreases such as minimal knowledge of the enterprise, no monetary compensation for conduct, conduct motivated by fear or by family or intimate relationships.

A report is to be prepared next year on the effectiveness of drug court programs receiving federal funds.

While this change is good news for future cases with conduct occurring after the August 3, 2010 effective date, the law does not help:
Anyone already convicted.
Anyone awaiting sentencing.
Anyone charged in the future with conduct occurring before August 3, 2010.

The new law should apply to conduct that begins before August 3, 2010 and continues after August 3, 2010.

The changes apply only to crack (powder weights are unchanged) and only to federal law.

Retroactivity
When a statute is not specifically made retroactive, it is generally applied only to conduct occurring on or after the effective date.  This is codified in 1 U.S.C. § 109, The Savings Clause.

The repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing Act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability.  .  .  .

DOJ takes the position that when a statute is silent, it will not apply to any offense committed before the effective date, even if the person is arrested afterward. In other words, the relevant date for the application of the law will probably be the date of the offense conduct, not the date of sentencing.  See, e.g., Warden, Lewisburg Penitentiary v. Marrero, 417 U.S. 653 (1974); Bradley v United States, 410 U.S. 605 (1973); 1 U.S.C. § 109

Defender Offices are not optimistic about overcoming the DOJ position, but find potential support in a few cases.  See Hamm v. City of Rock Hill, 379 U.S. 306, 85 S.Ct. 384 (1964)(application of civil rights act), and U.S. v. Kolter, 849 F.2d 541 (11th Cir. 1988)(vacating felon in possession conviction due to amended law definition which now excludes the defendant)(this argument was rejected by the First Circuit in U.S. v. Rumney, 979 F2d. 265, 267 (1st Cir. 1992).

Kolter was rejected by the majority of circuits.  See Martin v. United States, 989 F.2d 271, 276 (8th Cir. 1993).  “Because the repeal of § 1202 and the amended definition of conviction in § 921(a)(20) are both controlled by the effectiveness provisions of § 110(a), we conclude that they apply only to conduct occurring after the effective date of the statute. See United States v. Rumney, 979 F.2d 265, 267 (1st Cir. 1992); United States v. Davis, 972 F.2d 227, 230 (8th Cir. 1992); United States v. Brebner, 951 F.2d 1017, 1023 & n.6 (9th Cir. 1992); United States v. Balascsak, 873 F.2d 673, 677 (3d Cir. 1989) ("There is no indication that the provision [amended § 921(a)(20)] was meant to apply to violations of § 1202 which occurred prior to the effective date of the Act."); United States v. Holley, 818 F.2d 351, 353-54 (5th Cir. 1987); United States v. Pennon, 816 F.2d 527, 529 (10th Cir. 1987); see also United States v. Breier, 813 F.2d 212, 216 (9th Cir. 1987) (FOPA provisions not specifically applicable to pending cases apply only prospectively). We note that one circuit has disagreed with our conclusion, United States v. Kolter, 849 F.2d 541 (11th Cir. 1987).

            A continued position of wait and see if Congress addresses retroactivity, especially after they see the result of the Commission’s work on the new directives is the most prudent approach for those already convicted.

Handling Current Cases
There is no credible basis to think Congress will revisit the law and make it retroactive, al least any time soon.  After the mid-term election what will occur is anyone’s guess.  Generally, federal criminal statutes apply based on the law in effect on the date a crime occurred.  Advisory sentencing guidelines apply the guideline in effect on the date of sentencing.  To the extent the Commission reduces the ratio and adds additional mitigating factors, these would benefit a defendant not subject to a minimum mandatory, (for example in a safety valve case), or potentially in a fact specific case of guidelines higher than the minimum mandatory, but the ability to qualify under a new mitigating factor.  Because the Commission is to act on portions of the new law’s directives within 90 days, a continuance in limited cases as described, might make a difference, although you may do just as well proceeding now and arguing variance as Congress has told the Commission to make the changes so why does the Court need to wait three months ?

Attached are two FAQ hand outs from FAMM.   These are helpful, but in my view provide one legal error.  A government 5K1.1/3553(e) cooperation departure DOES NOT open the door to a change in how drug weight is calculated.  Only the factors of the cooperation may be used by the court in departing below the statutory minimum mandatory sentence.  The court may vary or depart down to the minimum mandatory under §3553(a) or the Guidelines, but the reasons to sentence below a minimum mandatory are limited to the cooperation based facts. See for example U.S. v. Coyle, 506 F.3d 680, 682 (8th Cir. 2007)(When a defendant is subject to a statutory minimum sentence, and the government moves to reduce the sentence based on substantial assistance pursuant to 18 U.S.C. § 3553(e), then the court may consider only the defendant's assistance in making a reduction below the statutory minimum) also discussing but not resolving the issue see U.S. v. A.B., 529 F.3d 1275 (10th Cir. 2008).  In the First Circuit the Poland case, while a rule 35(b) reduction, remains instructive. U.S. v. Poland, 562 F.3d 35 (1st Cir. 2009). “If Congress had meant to render mandatory minimums completely inoperative in the case of reductions pursuant to § 3553(e), it would not have simply granted "limited authority to impose a sentence below a statutory minimum," but rather would have used language like that in 18 U.S.C. § 3553(f), which authorizes the district court to impose a sentence "without regard to any statutory minimum sentence." U.S. v. Jackson, 577 F.3d 1032, 1035 (9th Cir. 2009)(reaffirming U.S. v. Auld, 321 F.3d 861,865 (9th Cir. 2003).

My thanks to the many attorneys and federal defender offices who have provided materials and research on this topic.  For any errors, be they typographical or just wrong, blame me.

Good luck and keep the up the great work.

- Famm FAQ on Fair Sentencing Act

- Famm FAQ on Retroactivity and Fair Sentencing Act

- Explanation S 1789

- Mandatory Minimums Outline

- Text of Law and AO Announcement

David Beneman
Federal Defender
P.O. Box 595
Portland, Me 04112-0595
207-553-7070 ext. 101
David.Beneman@fd.org

To assist in communications with both clients and CJA attorneys who have or have had crack cases, I forward along sample letters to each prepared by Rosemary Cakmis, head of Donna Elm's 
appellate unit in the Middle District of Florida. The letters summarize where things currently stand, assure them that we are on top of the new changes and advise everyone to hold tight for the time being.  Also attached is the ppt that Rosemary gave at sentencing strategies seminar last week and which the Middle District is using at their panel trainings.  Finally, we wanted to let you know that Rosemary and Carl Gunn from the Los Angeles Defender Office have generously agreed to put together a sample retroactivity motion for pipeline cases.  They hope to have something out on that shortly.  If anyone else is currently compiling the legislative history, please let Rosemary know.  They have nearly completed a robust legislative history summary and there is no sense in reinventing that wheel. And, if there are any volunteers to join the retroactivity/crack litigation working group, again please contact either Rosemary or myself.

Thanks again to both Rosemary and Carl.  

- New Crack Law

- Attorney email

- Client email

--------------------------
Anne E. Blanchard
Nat'l Sentencing Resource Counsel
Federal Public & Community Defenders
Office of the Federal Public Defender
840 Cooper St, Suite 350
Camden, NJ 08102

(cell) 856-495-6462
(office) 856-757-5341
(fax) 856-757-5273

Attached is an article by AFPD Doug Kellar which has been published in the Boston College Law Review, entitled, WHY THE PRIOR CONVICTION SENTENCING ENHANCEMENTS IN ILLEGAL RE-ENTRY CASES ARE UNJUST AND UNJUSTIFIED (AND UNREASONABLE TOO)
 
This should be useful in support of a variance. 
 
SRC Project (Amy, Anne, Denise, Jennifer, Paul, and Sara)

- Keller Prior Conviction Article

Amy Baron-Evans
Sentencing Resource Counsel
Federal Public and Community Defenders
Federal Defender Office
51 Sleeper Street 5th floor
Boston, MA 02210
(617) 429-2403 cell
(617) 391-2253 office direct dial
(617) 223-8061 office main number
(617) 223-8080 fax

Dear Defenders and CJA Panel Representatives:

I am writing to about a new, exciting and much needed Training Branch workshop for federal defender staff and CJA panel practitioners, The Law and Technology Techniques in Electronic Case Management Workshop, to be held in San Francisco, CA , September 23-25, 2010.  As with all of our programs, there is no registration fee.  There is a limited amount of funding to provide financial assistance to non-federal defender participants for travel expenses.   Please make this information available to your staff and panel members.  Registration is limited to 65 participants.
The Techniques in Electronic Case Management Workshop focuses on the use of technology to improve the organization, review, and analysis of case materials, with a concentration on discovery and 3rd party information obtained through investigation. This two and half day intensive program consists of plenaries as well as small group instruction in which  attendees will use the software programs themselves to manage, organize and review documents. The workshop will instruct participants on the uses of three software applications, Adobe Acrobat Professional, ISYS, and CaseMap, emphasizing how electronic case management can aid the defense. Relying on software programs that are more typically within the budget of a CJA panel attorney (@$600 or less), this workshop will help panel attorneys handle the small to medium-sized cases more effectively.

The plenary presentations will cover the utility of each software program, and will demonstrate to participants processes and skills necessary to develop and advance effective case management. In the small group sessions, participants will do hands-on exercises with their computer and learn how to use the programs more in-depth, so that at the end of the workshop, they can implement these techniques in their own cases. Through the use of a mock case, participants will learn the technical capabilities of the various software programs, successful workflow processes, and methods to ensure quality control. In addition to these sessions, there will be presentations on effective strategies in approaching the large size cases where these software programs in themselves may be insufficient. These plenaries will include useful information on selecting and working with outside vendors and the use of web-based document repositories.  A draft agenda for the program is attached, as is the financial assistance application.  They can also be found on our web site, www.fd.org, where one can also register for the workshop.

In order to participate in this program, participants are required to provide their own laptop computers. The workshop is designed for CJA panel attorneys and paralegals or investigators who work with them. It is also open to employees of federal defender organizations.

For information on the logistics, please contact Shemiah Schuler.  For information about the substance of the program, please contact Stephen Marley.

- Financial Assistance Policy and Application

- Technique in Electronic Case Management

Bob Burke, Chief
Training Branch
Office of Defender Services
Administrative Office of the U.S. Courts
One Columbus Circle, NE, Suite G-430
Washington, DC 20544
(202) 502-2914
(202) 502-2911 (fax)

Dear Defenders and CJA Panel Representatives:

Effective today, www.fd.org, the web site of the Office of Defender Services, has full text search capability that will allow CJA practitioners to more readily find useful educational and practice materials related to federal criminal practice.

This is a significant enhancement to the site and I want to recognize and commend TB Attorney Advisory Lisa Porcari and webmaster Nana Asah-Kwashie for their hard work in bringing it to fruition.

Bob
Bob Burke, Chief
Training Branch
Office of Defender Services
Administrative Office of the U.S. Courts
One Columbus Circle, NE, Suite G-430
Washington, DC 20544
(202) 502-2914
(202) 502-2911 (fax)
Bob_Burke@ao.uscourts.gov

HISTORIC REFORM: Congress Lowers Penalties for Crack Cocaine

House approves Senate compromise on suspension calendar
3,000 defendants would benefit from sentencing changes each year

After decades of debate, research and recommendations, the United States Congress has approved legislation to increase fairness in sentences for crack cocaine offenses. The House of Representatives today passed, under a suspension of the rules, a bill passed by the Senate in March which would reduce the sentencing disparity between crack and powder cocaine. The bill now awaits the President's signature.

The Fair Sentencing Act of 2010 would raise the minimum quantity of crack cocaine that triggers a 5-year mandatory minimum from 5 grams to 28 grams, and from 50 grams to 280 grams to trigger a 10-year mandatory minimum sentence. The amount of powder cocaine required to trigger the 5 and 10-year mandatory minimums remains the same, at 500 grams and 5 kilograms respectively.  The legislation also eliminates the mandatory minimum for simple possession of crack cocaine. The quantity disparity between crack and powder cocaine would move from 100 to 1 to 18 to 1.

The Sentencing Project has long advocated for the complete elimination of the sentencing disparity that has doled out excessive and harsh penalties, and created unwarranted racial disparity in federal prisons. Currently, 80% of crack cocaine defendants are African American, and possession of as little as 5 grams of crack cocaine subject defendants to a mandatory five-year prison term. For decades the controversial cocaine sentencing law has exemplified the disparate treatment felt in communities of color and the harshness of mandatory minimum sentences.

According to estimates from the U.S. Sentencing Commission, the approved changes to the current penalties for crack cocaine offenses could impact nearly 3,000 defendants a year by reducing their average sentence 27 months. The Commission projects that 10 years after enactment the changes could produce a prison population reduction of about 3,800.

For people currently serving time for low-level crack cocaine offenses, the bill's passage will not impact their fate.  The Sentencing Project urges Congress, the U.S. Sentencing Commission and the President to apply the sentencing adjustments mandated in the Fair Sentencing Act retroactively.

For more information on the cocaine sentencing debate, visit.

The Sentencing Project | 1705 DeSales Street, NW | 8th Floor
Washington, DC 20036 | 202.628.0871 | Send an email to The Sentencing Project.

Note: The bill will be signed by Obama in about 10 days.  Don't plead anybody before then.  I believe it is silent on retroactivity.
-Richard

Practice Advisory/Cert Petition/Sentencing Memo

1) 924(c) - receipt of gun in trade for drugs: I’m attaching an excellent cert petition on the question: Whether receipt of a firearm in exchange for drugs constitutes “possess[ion] . . . in furtherance” of a drug trafficking offense that requires a mandatory minimum consecutive sentence under 18 U.S.C. § 924(c)(1)(A)? The opinion below is US v. Mahan, 586 F.3d 1185 (9th Cir. 2009), where the 9th held that it does.

This question was left open in Watson v. US, 552 US 74 (2007), in which the S Ct held that receipt of a gun in trade for drugs does not constitute “use” of a firearm “in furtherance of” drug trafficking.

Please let me know if you have an issue involving Watson and possession in furtherance under 924(c), where the firearm is traded for drugs.

2) Carachuri-Rosendo: I’m attaching a practice advisory and motions from the National Immigration Project. These were designed for immigration practitioners to be used in deportation cases, but they may also be useful for defenders in illegal reentry prosecutions. In Carachuri-Rosendo, the Court held that a person who has been convicted of a second or subsequent conviction for simple possession of a controlled substance has not been convicted of an aggravated felony at least where there was not a finding of a prior conviction.

If anyone has a case in which an enhanced sentence was imposed based on state misdemeanor convictions that are no longer properly the basis for an aggravated felony deportation, and for which there is no jurisdictional hook to return to court, you are welcome to get in touch with Margy Love, and she will advise re applying for sentence reduction through clemency or 18 USC 3582(c)(1)(A)(i).

3) Crack: I’m attaching an excellent sentencing memo in a crack case (by CJA atty and former AFPD Peter Parker) that persuaded Judge Gertner to apply a 1:1 ratio. Also good information on low risk of recidivism for this defendant.

4) Child Porn:
I’m attaching a 28j letter that Peter Goldberger filed in US v. Grober, which collects recent stats on judges varying from this guideline, as well as the cite to the recent Judicial Survey in which 69% of judges responding stated that the guidelines range for receipt of child pornography was “too high,” and 70% said the range for possession was “too high.”

Awhile ago, I alerted you to a law review Note by Jesse Basbaum. It's now published: Jesse P. Basbaum, Inequitable Sentencing for Possession of Child Pornography: A Failure to Distinguish Voyeurs from Pederasts, 61 Hastings L. J. 1281 (2010). It borrows from Troy’s work (giving credit), but adds lots of good stuff on empirical evidence regarding whether possessors are touchers.

5) SG concedes relevance of prohibited/discouraged departures under 3553(a)

We earlier alerted you to the cert grant in U.S v. Pepper, 09-6822 which granted cert on the following questions:

There is a conflict among the United States Courts of Appeals regarding a defendant's post-sentencing rehabilitation and whether it can support a downward sentencing variance under 18 U.S.C. § 3553(a).

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?

If you have a judge or are in a circuit that still gives great deference to USSC policy statements discouraging or prohibiting consideration of mitigating factors, the SG’s brief in opposition to certiorari in U.S. v. Pepper should help. Here's the concession when confronted with the question of whether a court may consider post-sentencing rehab.

"No provision in Section 3553(a) prohibits a court from considering at resentencing a defendant’s efforts at rehabilitation undertaken after his initial sentencing. On the contrary, Section 3553(a) specifically instructs sentencing courts to consider “the history and characteristics of the defendant.” 18 U.S.C. 3553(a)(1). That phrase encompasses a defendant’s rehabilitative efforts, whether they occur before or after his original sentencing. Consideration of a defendant’s rehabilitation after his original sentencing may also be relevant to “the need for the sentence imposed” on resentencing “to protect the public from further crimes of the defendant,” another Section 3553(a) factor. 18 U.S.C. 3553(a)(2). Accordingly, the court of appeals erred in concluding that, under the advisory Guidelines regime, postsentencing rehabilitation is never a permissible factor to consider in varying downward under Section 3553(a) from the advisory Guidelines range." Brief in Opposition, at 13, available here.

The same reasoning applies to every other prohibited or discouraged departure in the Manual.

Also, am attaching a great deconstruction of 5K2.19 by Jennifer. More of these to come very soon.

If you are aware of other government concessions on appeal regarding the relevance under 3553(a) of factors the guidelines place off limits or discourage, please let us know.

6) Deconstruction Resources:

Here is a link to the updated SRC Directives Table, setting forth all of the directives from Congress to the Commission that have resulted in it not acting in its “characteristic institutional role.” Directives Table

Congress has now enacted 108 general and specific directives, generating nearly as many amendments that often affected several guidelines and policy statements at once. Many of these amendments were not required by the directive or were broader than required, and the overwhelming majority (approximately 100) either directly increased guideline ranges or had that effect. Only a small number of these amendments were as narrow or more narrow than required. As of today, at least 77 distinct guidelines and policy statements have been promulgated or amended, some repeatedly, in response to congressional directives.

You can use the Table to identify some of what went wrong with the guideline in your case. Just search for the guideline number, e.g., 2D1.1.

And, don’t forget the SRC website, where you can get documents and materials from the public record of the Commission that are not currently available on its website and are otherwise difficult to obtain. These include public comment (including public comment regarding the initial guideline development process), written hearing testimony from early amendment cycles (and some others), hearing transcripts (before 1997), and various reports.

SRC Project (Amy, Anne, Denise, Jennifer, Paul, and Sara)

--
Amy Baron-Evans
Sentencing Resource Counsel
Federal Public and Community Defenders
Federal Defender Office
51 Sleeper Street 5th floor
Boston, MA 02210
(617) 429-2403 cell
(617) 391-2253 office direct dial
(617) 223-8061 office main number

- Mahan Cert Petition

- CARACHURI-ROSENDO Practice Advisory

- Clement Sentencing Memo Crack

- L28j USSC Stats

- 5K2.19 Deconstruction

Attached is a June 2010 memo regarding BOP's policy on placement in RRCs. BOP is encouraging placement for higher risk inmates who have good institutional programming and who need to establish community support. Lower security classification inmates may be placed in home detention instead.

Sentencing Resource Counsel Project (Amy, Anne, Denise, Jennifer, Paul, and Sara).

- BOP Policy

Denise C. Barrett
Sentencing Resource Counsel
Federal Public and Community Defenders
Office of the Federal Public Defender for the
District of Delaware
800 King Street, Suite 200
Wilmington, DE 19801

Mobile Work: (410) 474-9861
Fax: (302) 573-6041
Email: denise_barrett@fd.org

Supreme Court to decide whether district courts can consider post-sentencing rehabilitation under 18 USC § 3553(a).  

The Supreme Court granted certiorari today in Pepper v. United States , 09-6822, which presents the question whether the district court has the authority to consider post-sentencing rehabilitation under 18 U.S.C. § 3553(a).    

Before 2000, there was a circuit split on whether courts could consider the defendant's post-sentencing conduct for purposes of downward departure when a defendant was resentenced after appellate remand.   In 2000, the Commission resolved the split by promulgating USSG 5K2.19, which states that post-sentencing rehabilitation is not an appropriate basis for downward departure.

Now, after Booker , there is once again a circuit split.   Compare United States v. Lloyd , 469 F.3d 319, 324 (3d Cir. 2006) (stating that it “would not hold that a court never could consider a defendant’s post-sentencing rehabilitation efforts when resentencing” following a Booker  remand, but that post-sentence rehabilitative efforts should affect the sentence only in “an unusual case”), with   United States v. Pepper , 570 F.3d 958, 965 (8th Cir. 2009) (holding that it is impermissible to consider post-sentencing rehabilitation for purposes of a downward variance), and United States v. Lorenzo , 471 F.3d 1219 (11th Cir. 2006) (holding that district courts are precluded from considering post-sentencing conduct under § 3553(a),, though it has recently recognized that “there is a question as to whether Lorenzo continues to be good law in light of [Booker, Rita, Kimbrough, Gall, and Spears],” see United States v. Smith , No. 09-13307, 2010 WL 1048819 (11th Cir. Mar. 22, 2010)).

The Eighth Circuit's decision below in Pepper , 570 F.3d 958, 965 (8th Cir. 2009), represents the fourth time the court of appeals has considered Mr. Pepper's case, after two appeals and a GVR in light of Gall and after reassignment (as ordered by the court of appeals) to a different sentencing judge.  The new judge denied a variance based on post-offense rehabilitation and decided to grant less of a downward departure for cooperation under 5K1.1 that the previous judge had granted.  The Eighth Circuit affirmed.  

Also presented is the question whether a district judge who resentences on remand after reassignment is bound by the findings of the previous judge that were affirmed on appeal.  

Mr. Pepper is represented pro bono by Alfredo Parrish of Des Moines, Iowa.  

Jennifer Niles Coffin
Research & Writing Attorney
Sentencing Resource Counsel Project
Office of the Federal Public Defender
810 Broadway, Suite 200
Nashville, TN  37203

615.736.5047 main
615.695.6930 direct

The Supreme Court issued two opinions today in criminal cases, and one in a capital habeas case. None involve sentencing issues, but all are worth reading.

From SCOTUS Blog:

In Skilling v. United States (08-1394) , the Court affirms in part, reverses in part, and remands in a main opinion by Justice Ginsburg.  The vote is unanimous on the “honest services” question in this case, but three Justices would have ruled that the honest services statute is unconstitutional:  Scalia, Thomas, and Kennedy.  There are an array of other concurrences in the case, including a partial dissent by Justice Sotomayor, joined by Justices Breyer and Stevens.

•Holding: (1) Pre-trial publicity and community prejudice did not prevent Skilling from having a fair trial. (2) The “honest services” statue covers only bribery and kickback schemes.   Part of the opinion vacates the Fifth Circuit’s ruling on Skilling’s conspiracy conviction.  In her dissent, Justice Sotomayor disagrees with the Court’s conclusion that Skilling had a fair trial before an impartial jury.

In Black v. United States (08-876) , the Court unanimously vacates and remands, again in an opinion by Justice Ginsburg.  Justice Scalia concurs in part and in the judgment, joined by Justice Thomas. Justice Kennedy separately concurs in part and in the judgment.

•Holding: The Court’s opinion in Skilling on the scope of the honest services law renders the jury instructions in this case on that law incorrect.  [In the process, the Court held that "a criminal defendant [] need not request special interrogatories, nor need he acquiesce in the Government’s request for discrete findings by the jury, in order to preserve in full a timely raised objection to jury instructions on an alternative theory of guilt."]

And in 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.  Writing for himself and Justices Stevens, Scalia, Breyer, and Sotomayor, Justice Thomas explained that under the text of the federal habeas statute, when a prisoner is resentenced and appeals the new sentence, he is challenging a different judgment than was challenged in his prior habeas petition.  Justice Kennedy, joined by the Chief Justice and Justices Ginsburg and Alito, dissented.

Opinions here.

Jennifer Niles Coffin
Research & Writing Attorney
Sentencing Resource Counsel Project
Office of the Federal Public Defender
810 Broadway, Suite 200
Nashville, TN  37203

615.736.5047 main
615.695.6930 direct

• Potential Uses of Begay , Chambers & Johnson : Annotated Caselaw Outline by Anne Blanchard & Sara Silva; and

• Is that Felony a Violent Felony or a Crime of Violence: An Analytical Framework for Approaching ACCA (and Career Offender) Predicates by Denise Barrett & Sara Silva

Also in breaking news, another round of ACCA/career offender-related congratulations are due to the Middle District of Florida office, including Defender Donna Elm and AFPDs Rosemary Cakmis, George Couture, and Stephen Langs.  They convinced the Eleventh Circuit that a defendant who was sentenced as a career offender pre- Begay  based on a predicate offense that no longer satisfies the test post- Begay  is "actually innocent" of being a career offender and thus entitled to habeas relief under sec. 2255's savings clause and sec. 2241.  See United States v. Gilbert , __ F.3d __, 2010 WL 2473560 (11th Cir. June 21, 2010).  The case is described in greater detail in the Annotated Caselaw Outline paper and is incredibly helpful for any defendant who was wrongly sentenced as a career offender or armed career criminal and might otherwise be procedurally barred from obtaining relief.

- Begay Update Revised

- Violent Felony Analytical Framework Paper Revised
--
Sara E. Silva
Research & Writing Specialist
Sentencing Resource Counsel
Federal Public and Community Defenders
51 Sleeper St., Fifth Floor
Boston, MA 02210
(617) 599-7619  (cell)
(617) 790-2252 (direct)
(617) 223-8061 (main)
(617) 223-8090 (fax)

Three opinions today from the Supreme Court to report:

Dolan v. United States, No. 09-367   --- Deadline for order of restitution

In a 5-4 vote, with Justice Breyer writing for the majority, the Supreme Court held today that in some circumstances, a sentencing court that has missed the 90-day deadline for entering an order of restitution under the Mandatory Victims Restitution Act may nevertheless order restitution.  According to the majority, the deadline for ordering restitution under the Act is not jurisdictional and not a "claims processing" rule, but one that creates a time-related directive that is legally enforceable but does not necessarily deprive the judge to take power even when the deadline is missed.  In this case, the sentencing court made clear its intent to order restitution before the expiration of the deadline, but did not have enough information to determine the amount.  As a result, the fact that the judge "filled in the blank" on the actual amount of restitution three months after the deadline had passed did not violate the statute.  In response to the defendant-petitioner's concern about the appealability of a judgment that does not yet include the amount of restitution, the majority advises defendants to ask the district court to order restitution in a timely manner or seek mandamus if it does not.

An interesting grouping in this close call, Chief Justice Roberts, joined by Justices Stevens, Scalia, and Kennedy dissented.  They would hold that restitution must be ordered at the time of sentencing if at all.   With an actual exclamation point, Justice Roberts writes "[w]hat an odd procedure the Court contemplates!" to put the defendant in the position of having to ask the district court to impose a harsher sentence or to seek the drastic remedy of mandamus if he is worried about the finality of his judgment for purposes of appeal.  He also notes that this decision does not answer the question of the validity of a restitution order that is entered after the deadline where the district court had not expressed its intent to order restitution.  

Read opinion here.

Carachuri-Rosendo v. Holder, No. 09-60  --- Second or subsequent drug possession offenses and "aggravated felony"

In a unanimous decision, with Justice Stevens writing for the court, the Supreme Court put the brakes on an extension of Lopez v. Gonzales and ruled today that a second or subsequent crime of possession of drugs is not an aggravated felony under 8 USC 1101(a)(43) when the underlying state conviction is not based on the fact that there was a prior conviction.  

The petitioner in this case, a lawful permanent resident who has lived in the United State since he was five years old, was seeking discretionary relief from  deportation after he committed two misdemeanor drug possession offenses in Texas.  For the first offense , possession of less than two ounces of marijuana, he received 20 days in jail.   For the second, possession without a prescription of one tablet of a common antianxiety medication, he received 10 days in jail.   Though it could have, Texas did not convict him on the second possession offense as a recidivist.

Parsing the "maze of  statutory cross-references" at issue (and not repeated here),  the Court rejected the Fifth Circuit's "hypothetical" approach, which would find a state drug offense an "aggravated felony" if the individual could  have been charged as a recidivist, even though he was not.  In the process, the Court discussed the meaning of "felony" and "aggravated," and stated that it was "wary" of the government's reading of the English language.  It also pointed to the fact that the decision to seek a recidivist enhancement lies within the prosecutor's discretion, which was not exercised here.  It ultimately rejected the government's position that the mere possibility, no matter how remote, that a 2-year sentence might have been imposed in a federal trial is a sufficient basis for concluding that a person convicted of state misdemeanors only who was not charged as a recidivist has been “convicted” of an “aggravated felony.”    

Of special interest, the Court noted that a comparable federal defendant would be looking at probably six months under the Guidelines, and that "the Government has provided us with no empirical data suggesting that 'even a single eager Assistant United States Attorney' has ever sought to prosecute a comparable federal defendant as a felon. The Government’s 'hypothetical' approach to this case is therefore misleading as well as speculative."    Ouch.

Justices Scalia and Thomas each filed an opinion concurring in the judgment only.

Read opinion here.

Holland v. Florida, No. 09-5327   --- Equitable tolling under the AEDPA

In a 7-2 vote, with Justice Breyer writing for the majority, the Court reversed the Eleventh Circuit's decision that the petitioner's case did not constitute "extraordinary circumstances" for purposes of equitable tolling under the AEDPA.    This was not a claim of "garden variety" attorney negligence, but attorney misconduct.

In this case, the attorney missed the filing deadline and failed to communicate, to put it briefly.  The majority rejected the district court's finding that the petitioner had not acted diligently, as the record showed that he had diligently pursued his rights by writing his attorney, providing research, repeatedly asking that the attorney be removed from his case, and finally filing his own federal habeas petition on the day he found out the filing period had expired.   It also rejected the Eleventh Circuit's rigid per se rule for "extraordinary circumstances," which it found to be difficult to reconcile with general equitable principles and because it fails to recognize that sometimes an attorneys unprofessional conduct can be so egregious that it constitutes extraordinary circumstances warranting equitable tolling.

Because the Eleventh Circuit had relied on an erroneous test, the Court remanded the case for further proceedings.  

Justice Alito filed an opinion concurring in part and concurring in the judgment.  Justices Scalia filed a dissenting opinion, joined by Justice Thomas except Part I.

Read opinion here.

Jennifer Niles Coffin
Research & Writing Attorney
Sentencing Resource Counsel Project
Office of the Federal Public Defender
810 Broadway, Suite 200
Nashville, TN  37203

615.736.5047 main

Attached is a new USSC Survey of Judges.  While it is generally interesting to see how judges responded, you may find some of it helpful in giving your judge a little nudge on variances and giving them some comfort that they aren't going out on a limb.  For example, Table 13 shows a sizable percentage of judges surveyed think a variety of offender characteristics are relevant to variances or departures.  And of course, judges think the child porn guidelines for receipt and possession are too high. See Table 8.  Of course,  the danger of using the table is that in some cases, a variance friendly judge might hesitate or reexamine his or her views if they are inconsistent with the majority.

- Judge Survey 06 2010

If you use the survey in advocacy, let us know how it works out. 

Denise C. Barrett
Sentencing Resource Counsel
Federal Public and Community Defenders
Office of the Federal Public Defender for the
    District of Delaware
800 King Street, Suite 200
Wilmington, DE 19801

Mobile Work: (410) 474-9861
Fax:      (302) 573-6041
Email:   denise_barrett@fd.org

Attached is a resource list on collateral consequences of convictions, which you may find helpful in advising your client, negotiating dispositions, or educating the court about the harsh consequences our clients often face upon conviction. If you have additional resource material that should be added to the list, please let me or Sara Silva know about it.

- Collateral Consequences Resource List 6.1.10

Denise C. Barrett
Sentencing Resource Counsel
Federal Public and Community Defenders
Office of the Federal Public Defender for the
District of Delaware
800 King Street, Suite 200
Wilmington, DE 19801

Mobile Work: (410) 474-9861
Fax: (302) 573-6041
Email: denise_barrett@fd.org

Multi-Track Federal Criminal Defense Seminar and the Fundamentals of Federal Criminal Defense Training

Registration is now open for CJA attorneys and federal defender staff for the Multi-Track Federal Criminal Defense Seminar and the Fundamentals of Federal Criminal Defense Training, to be held in Miami, FL, Thursday to Saturday, August 12-14, 2010, and Thursday, August 12, 2010, respectively. As always, the programs are free of charge for CJA practitioners. Some funding is available to provide a limited number of CJA panel attorney participants financial assistance for travel expenses.

The seminar is designed to offer in-depth instruction in a variety of substantive criminal defense
topic areas. Five of the tracks - Fraud, Computer Crimes, Immigration, Sentencing and Forensics -
will be presented in four distinct hour-long time blocks that are each presented twice, providing
seminar participants with the opportunity to attend two of the five separate tracks taking place on
Thursday and Friday. On Saturday, additional valuable topics will be presented that are of general interest and importance to criminal defense practitioners. Past attendees wrote about this programs: "Learned lots of tips and strategies;" and "Excellent! Great presentations and very important information."

On Thursday, August 12, 2010, there will be a full, one-day training - Fundamentals of Federal
Criminal Defense - specifically designed for practitioners who are new to federal criminal
defense practice. It will provide them the opportunity to receive instruction on the areas most vital
to providing an effective defense for their clients.

A draft agenda and financial assistance application are attached, but can also be found on the Training Branch's web site, www.fd.org, where one can also register for the seminars (participants should register separately for Multi-Track and the Fundamentals Training if they intend to attend both). A flyer about the program is also attached for posting and/or distribution on bulletin boards, listservs, web sites and other places where panel attorneys are likely to look.

For questions about the substance of the program, please contact Eric Vos at Eric_Vos@ao.uscourts.gov. For questions about logistics, please contact Jenna Shepard at Jenna_Shepard@ao.uscourts.gov.

- Multi-Track Federal Criminal Seminar

- Financial Assistance Policy and Application

- Draft Agenda

Bob Burke, Chief
Training Branch
Office of Defender Services
Administrative Office of the U.S. Courts
One Columbus Circle, NE, Suite G-430
Washington, DC 20544
(202) 502-2914
(202) 502-2911 (fax)

Attached is the Holder memo which, I'm told, overrides the Ashcroft memo and gives some control back to local USAs. I am sure there will be more to follow.

- Holder Memo

United States v. O’Brien/Burgess
 
In a stunning, unanimous victory today, the Supreme Court (per Justice Kennedy) ruled that in a § 924(c) prosecution, the fact that a firearm was a machine gun – thus subjecting the defendant to a 30-year mandatory minimum sentence – is an element of the offense that must be charged in the indictment and proved to a jury beyond a reasonable doubt.
 
The case was decided on statutory interpretation grounds and the majority opinion did not reach the constitutional question of whether McMillan and Harris have survived Sixth Amendment jurisprudence post-Apprendi.  Justices Stevens and Thomas, however, squarely reached the issue.
 
Justice Stevens, concurring separately, wrote, “In my view, the simplest, and most correct, solution to the case before us would be to recognize that any fact mandating the imposition of a sentence more severe than a judge would otherwise have discretion to impose should be treated as an element of the offense.”
 
Justice Thomas, concurring in the judgment only, remained true to his dissenting opinion in Harris that “it is ultimately beside the point whether as a matter of statutory interpretation [the machinegun enhancement] is a sentencing factor,” because as a matter of constitutional law, “[i]f a sentencing fact either raises the floor or raises the ceiling of the range of punishments to which a defendant is exposed, it is by definition an element.” (citations and internal punctuation omitted).
 
The arguments set forth by Justices Stevens and Thomas should be made and preserved in every case dealing with a mandatory minimum.  As Justice Stevens pointed out, “The unanimity of [the Court’s] decision today does not imply that McMillan is safe from a direct challenge to its foundation.”  It is up to us to bring that challenge forward.
 
Deepest congratulations and appreciation to CJA attorneys Timothy O’Connell and Leslie Feldman-Rumpler of Charleston and Boston, MA, respectively, and a special thanks to the many members of the Defender community (especially appellate guru Judy Mizner of the Boston office) who pitched in with brainstorming, editing, drafting and all manner of support on the merits and amicus briefs.  It was a dedicated group effort resulting in a fantastic victory for our clients!

--
Sara E. Silva
Research & Writing Specialist
Sentencing Resource Counsel
Federal Public and Community Defenders
51 Sleeper St., Fifth Floor
Boston, MA 02210
(617) 599-7619  (cell)
(617) 790-2252 (direct)
(617) 223-8061 (main)
(617) 223-8090 (fax)

INCREASES TO CASE COMPENSATION MAXIMUMS FOR CRIMINAL JUSTICE ACT SERVICE PROVIDERS (IMPORTANT INFORMATION)
A provision in the “Federal Judiciary Administrative Improvements Act of 2010,” Pub. L.
No. 111-174, enacted on May 27, 2010, amends the Criminal Justice Act (CJA), 18 U.S.C.
§ 3006A, to raise 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.

The new law increases the following waivable compensation maximum amounts for investigative, expert, and other service providers:
(1) The case compensation maximum amount of $500, excluding expenses, which applies if prior judicial authorization for a type of service was not obtained (absent a showing that timely procurement could not await prior authorization), is raised to $800 (subsection (e)(2) of the CJA). See § 310.20.10 of the Guide to Judiciary Policy, Volume 7A, Guidelines for Administering the Criminal Justice Act and Related Statutes (CJA Guidelines). Increases to Case Compensation Maximums for Page 2 Criminal Justice Act Service Providers
(2) The case compensation maximum amount of $1,600, excluding expenses, which applies to each service provider in a representation when there has been prior authorization for a type of service (a compensation claim above this threshold requires the approval of the chief judge of the court of appeals, or his or her delegate circuit judge), is raised to $2,400 (subsection (e)(3) of the CJA). See
CJA Guidelines § 310.20.20.

In death penalty cases (federal capital prosecutions and capital post-conviction proceedings), the case compensation maximum amount without prior authorization in subsection (e)(2) of the CJA applies (paragraph (1), above), but the case maximum with prior authorization (paragraph (2), above) is governed by a separate statute, 18 U.S.C. § 3599(g)(2). Under that statute, the waivable case maximum amount of $7,500 (payment claims above this threshold require the approval of the chief judge of the court of appeals or his or her delegate circuit judge) includes the total cost (fees and expenses) of all investigative, expert, and other services combined in a representation. See CJA Guidelines § 660.20.20.

The CJA amendments apply to cases pending on or after the date of enactment, which is the effective date of the legislation. Specifically, the new case compensation amounts apply to a voucher submitted by a provider of investigative, expert, or other services if that provider furnished any CJA-compensable work in the representation on or after May 27, 2010. The former case compensation maximums apply if the provider’s work on the representation was completed before May 27, 2010.

The legislation also includes a provision to increase these new compensation amounts simultaneously with any subsequent, cumulative adjustments under section 5303 of title 5 in the
rates of pay under the General Schedule (currently calculated based on the determination of the
annual Employment Cost Index adjustment), rounded to the nearest hundred dollars. The
Administrative Office will provide notice when new threshold amounts are effective under this
provision.

Additional instructions for determining the applicability of the new case compensation maximum amounts are attached. Questions may be directed to the Office of Defender Services, Legal and Policy Branch Duty Attorney, at (202) 502-3030 or via email.

Below is a copy of the BOP guidelines on forensic evaluations. Thanks to Josh Lee, AFPD in the Arkansas CHU for obtaining this thru a FOIA request.

Denise C. Barrett
Sentencing Resource Counsel
Federal Public and Community Defenders
Office of the Federal Public Defender for the
District of Delaware
800 King Street, Suite 200
Wilmington, DE 19801

Mobile Work: (410) 474-9861
Fax: (302) 573-6041
Email: denise_barrett@fd.org
 
- BOP Guidelines

Graham v. Florida: LWOP for Juveniles
            It’s official: the Eighth Amendment prohibits a sentence of life without the possibility of parole for juveniles convicted of offenses other than homicide.  Justice Kennedy, writing for Justices Stevens, Ginsburg, Breyer and Sotomayor, for the first time extended the framework for a categorical challenge under the Eighth Amendment to a sentence to a term of years (as opposed to death).  Aside from its holding, the opinion is fascinating for a number of reasons and is a must read for all defense practitioners.  For example, the Court found that although thirty-nine jurisdictions permit LWOP sentences for juveniles who commit offenses other than homicide, in practice the sentences are infrequently imposed, thereby permitting it to conclude that “a national consensus has developed again it.”  The Court based this finding, in part, on a study submitted by the respondent juveniles that it independently supplemented (!) in order to answer criticisms by the state.
 
Unsurprisingly, the opinion has a number of useful arguments in support of mitigated sentences for juveniles.  For example, the Court upheld its findings in Roper that juveniles are less culpable than adult offenders as shown by “developments in psychology and brain science [that] continue to show fundamental differences between juvenile and adult minds.”  It goes further, however, noting that people who do not kill or intend to kill also have relatively diminished culpability, and that life without parole sentences “share some characteristics with death sentences that are shared by no other sentences,” including the fact that it is “a forfeiture that is irrevocable” and “deprives the convict of the most basic liberties without giving hope of restoration, except perhaps by executive clemency – the remote possibility of which does not mitigate the harshness of the sentence.”  These are useful arguments to marshal in favor of mitigation at sentencings generally, and should not be limited to youthful offenders.
 
Perhaps most useful, however, is the Court’s analysis of a sentence of LWOP for a non-homicide juvenile offender against the four purposes of sentencing: retribution, deterrence, incapacitation and rehabilitation.  Defense counsel can use the analysis as a roadmap for sentencing memoranda in every case.  More salient features of the opinion include (1) the Court’s reminder that “the heart of the retribution rationale is that a criminal sentence must be directly related to the personal culpability of the criminal offender;” (2) its acknowledgment that “[a] sentence lacking any legitimate penological justification is by its nature disproportionate to the offense;” (3) its conclusion that deterrence is not sufficient to justify the “grossly disproportionate” sentence of LWOP for an offender with a “diminished moral responsibility;” (4) its similar conclusion that “[i]ncapacitation cannot override all other considerations, lest the Eighth Amendment’s rule against disproportionate sentences be a nullity,” and that incapacitation is an inadequate justification for an LWOP sentence where the characteristics of the defendant raise a question as to whether the offender is in fact incorrigible; and (5) its notation that people sentenced to LWOP “are often denied access to vocational training and other rehabilitative services that are available to other inmates,” which is true for many adult offenders serving time in BOP custody.  Although each of the Court’s points is specifically directed toward juvenile offenders, they can and should be applied to other offenders with reduced culpability facing disproportionately severe sentences.
 
            Justice Stevens separately concurred, joined by Justices Ginsburg and Sotomayor.  Chief Justice Roberts concurred in the judgment, and Justices Thomas, Scalia, and Alito dissented.
 
Comstock v. United States: Civil Commitment under 18 U.S.C. § 4248
 
            In a second (and heartbreaking) decision, the Supreme Court (Justice Breyer writing for Chief Justice Roberts and Justices Stevens, Ginsburg and Sotomayor) upheld the power of the federal government to civilly commit “sexually dangerous persons” under the Necessary and Proper Clause for five reasons.
 
First, the Court found that the Clause constitutes a “broad” delegation of legislative authority and requires only that a statute be rationally related to the implementation of a constitutionally enumerated power, as shown by the explosion in federal criminal laws and the federal penal system.  Second, § 4248 represents (to the Court) “a modest addition to a set of prison-related mental-health statutes that have existed for many decades.”  Third, it was reasonable of Congress to extend its “longstanding civil-commitment system to cover mentally ill and sexually dangerous persons who are already in federal custody, even if doing so detains them beyond the termination of their federal sentence.”  Fourth, the statute properly accounts for states’ interests, apparently because of the tautological position that the Necessary and Proper Clause as interpreted here gives Congress “broad authority” to intrude into traditionally state-governed areas.  Fifth, the Court found that the link between § 4248 and Article I is “not too attenuated” because what is “necessary and proper” can be based on a series of inferences, and is not “too sweeping” because not that many people have been subjected to it yet.
 
            It is vitally important to remember that the Court expressly did not reach whether “other provisions of the Constitution – such as the Due Process Clause – prohibit civil commitment” under the circumstances provided for in 18 U.S.C. § 4248.  Again, at the close of the majority opinion, Justice Breyer reiterated that “[w]e do not reach or decide any claim that the statute or its application denies equal protection of the laws, procedural or substantive due process, or any other rights guaranteed by the Constitution.”  These issues are very much alive and, given the majority’s oft-repeated caveats suggesting its own misgivings, they should continue to be preserved in every civil commitment action.
 
            Justices Kennedy and Alito concurred in the judgment only, and Justices Thomas and Scalia forcefully dissented.  Condolences to Alan DuBois, Jane Pearce, Eric Brignac Lauren Brennan, Tom McNamara, and the rest of the fine lawyers and staff of the Federal Public Defender’s Office for the Eastern District of North Carolina.  The office has worked tirelessly against implementation of this unwise and unjust statute, and will no doubt continue to do so going forward.  We look forward to the day that the Court finally takes up the many constitutional infirmities of § 4248.
 
Wall v. Koli: Cert Grant
 
There was also one cert grant in Wall v. Koli, in which the Court will decide whether a state court sentence-reduction motion consisting of a plea for leniency constitutes an "application for State post-conviction or other collateral review," 28 U.S.C. § 2244(d)(2), thus tolling the Anti-Terrorism and Effective Death Penalty Act’s one-year limitations period for a state prisoner to file a federal habeas corpus petition.  The cert grant will resolve a circuit split on the issue.  The case is in good hands with Judith Mizner, Chief of the Appellate Division, and the rest of the excellent attorneys and staff of the Federal Public Defender’s Office for the District of Massachusetts (Miriam Conrad, Defender).

--
Sara E. Silva
Research & Writing Specialist
Sentencing Resource Counsel
Federal Public and Community Defenders
51 Sleeper St., Fifth Floor
Boston, MA 02210
(617) 599-7619  (cell)
(617) 790-2252 (direct)
(617) 223-8061 (main)
(617) 223-8090 (fax)

See attached. 
The first paragraph says:
Over the last several years, waiver of a defendant’s appellate and postconviction rights has become a standard feature of plea agreements in federal cases. While courts uphold a knowing and intelligent relinquishment of rights, these waivers are not without limits. This article suggests areas about which defense counsel should be aware in order to afford clients the greatest opportunity for postconviction relief. In particular, we explore ethical constraints on defense counsel’s ability to advise clients and to shield themselves from ineffective assistance claims, as well as constraints on prosecutors’ ability to demand such waivers or to shield themselves from prosecutorial misconduct claims.
 
- Appeal and Post-Conviction Waivers

--
Amy Baron-Evans
Sentencing Resource Counsel
Federal Public and Community Defenders
Federal Defender Office
51 Sleeper Street 5th floor
Boston, MA 02210
(617) 429-2403 cell
(617) 391-2253 office direct dial
(617) 223-8061 office main number
(617) 223-8080 fax

ANNOUNCING THE SENTENCING ADVOCACY WORKSHOP, JULY 29-31, 2010 AT THE SAN FRANCISCO RITZ-CARLTON

PLEASE NOTE THIS PROGRAM IS OPEN TO FEDERAL DEFENDER AND CJA PANEL ATTORNEYS

The Sentencing Advocacy Workshop, presented by the Office of Defender Services Training Branch, is a tuition-free CLE for Federal Defender attorneys and CJA panel attorneys which focuses on an often neglected, yet extremely important, area of practice.  Since over 95% of federal criminal cases proceed to the sentencing phase, participation in the Sentencing Advocacy Workshop should not be missed.  Participants bring a case of their own to the workshop where they brainstorm the facts of the case, develop a theory and theme, apply storytelling techniques, and write the first part of their sentencing memo.  The draft agenda is attached. Limited financial assistance is available to CJA panel attorneys demonstrating financial need.  Details regarding how to register for the Sentencing Advocacy Workshop, apply for financial assistance and further information about our training programs and resources can be found at www.fd.org. 

Enrollment is limited to 64 Federal Defender and CJA attorneys who have not participated in this program since 2006.  Early registration is encouraged.   

Please forward this e-mail to your federal defender staff and/or members of your CJA Panel as soon as possible. 

Please also post the attached flyer in an accessible location.

Questions regarding the Sentencing Advocacy Workshop? 
Contact LaShawn_Parker@ao.uscourts.gov or call (202) 502-2903

- 2010 Sentencing Advocacy Workshop Draft Agenda

 - 2010 Sentencing Advocacy Flyer

Motivational Interviewing

Motivational interviewing is a person-centered, open, empathic style of interviewing a client that is directive and goal oriented.  When used properly, it has proven effective in helping clients explore and resolve ambivalence about changing their behavior in prosocial ways.  It can be instrumental in planting the seeds for behavioral change. 

As more USPO’s move to evidence-based practices (EBP), like motivational interviewing, in their pretrial and post-conviction supervision work, some offices are employing MI techniques during the presentence report process.  Members of the ND Texas probation office recently conducted a training on MI at a national conference so you may begin to see it in your districts.

MI is characterized by the use of more open-ended questions that are designed to help identify your client’s “criminogenic needs” or dynamic risk factors – those factors in your client’s life that puts him or her at risk of committing another offense, but which can be changed so as to lessen the risk of recidivism.   For a more in-depth discussion of these risk factors, see “Determining Your Client’s Likelihood of Success under Community Supervision and Improving the Odds for a Non-Prison Sentence” for a discussion of assessing these risk factors, available here.  By using MI, probation officers hope to identify these risk factors, plant the seed for the client to change, and create a more balanced report that better identifies the 3553(a) factors and focuses on the client’s future goals and interests.

MI has the potential of laying the groundwork for powerful mitigation arguments at sentencing, which are supported by information in the PSR.  At the same time, if your client is not properly prepared for the interview, or if the PO uses the technique to dig out negative information, then the end result may do more harm than good.

MI is a good skill for attorneys to learn as the 3553(a) analysis now requires us to explore the causes of the client’s criminal behavior and help him or her identify rehabilitative needs and desires. MI is also a very useful tool in working with clients who argue, deny, or decline to follow counsel’s advice.  While targeted to counselors who work with substance abuse offenders, the following website provides some good information on MI. http://motivationalinterview.org.

For those with a more particular interest in the role of motivational interviewing and similar skills in defense practice, see generally Symposium Issue: Therapeutic Jurisprudence in Clinical Legal Education and Legal Skills Training, 17 St. Thomas L. Rev __ (2005); David Wexler (ed.), Rehabilitating Lawyers: Principles of Therapeutic Jurisprudence for Criminal Law Practice (2008).

Denise C. Barrett
Sentencing Resource Counsel
Federal Public and Community Defenders
Office of the Federal Public Defender for the
     District of Delaware
800 King Street, Suite 200
Wilmington, DE 19801

Mobile Work: (410) 474-9861
Fax:                (302) 573-6041
Email:            Denise Barrett

Good Time Credit On Time in State Custody Treated as Concurrent Time under USSG 5G1.3 
 
USSG 5G1.3(b) advises the judge to adjust the judgment to reflect time served in state custody for conduct related to the federal offense if the judge wants the time to be concurrent.  Although BOP gives good time credit for concurrent time in state custody after the federal sentence is imposed, Program Statement 5160.05 at 10, and for time in pretrial state custody before the prisoner reports to the federal institution, Program Statement 5880.28 at 1-40, it does not give good time credit for time in state custody served before sentencing and treated as concurrent time under 5G1.3.  Thus, if the judge announces that the sentence is 115 months and adjusts the judgment down 21 months for time already served in state custody, so that the defendant has 94 months left to serve with BOP, BOP gives good time credit only for 94 months.
 
In the attached Memorandum in Support of Petition for Habeas Corpus filed in Scheinling v. Thomas, filed April 5, 2010, Steve Sady and Lynn Deffebach make compelling arguments why good time must be given on that portion of the sentence imposed that was served in state custody and credited as concurrent time under 5G1.3(b).  See also Kelly v. Daniels, 469 F. Supp. 2d 903 (D. Or. 2007) (ordering BOP to assess good time credits for entire federal sentence including the concurrent portion served in state custody under 5G1.3).
 
This is not related to the amount of good time BOP gives for each year of the sentence imposed, which is the issue being decided in the pending case of Barber v. Thomas, and so does not depend on the outcome of that case.

- Concurrent Time Under USSG 5G1.3
----
Amy Baron-Evans
Sentencing Resource Counsel
Federal Public and Community Defenders
Federal Defender Office
51 Sleeper Street 5th floor
Boston, MA 02210
(617) 429-2403 cell
(617) 391-2253 office direct dial
(617) 223-8061 office main number
(617) 223-8080 fax

Deconstucting the Meth Guidelines

Several people have asked recently about deconstucting the meth guidelines.  We haven't written this up in one place, but I'm attaching materials that may be helpful.  I don't know if the uncertainty problem identified in the DEA has been fixed, or if the problem is worse now overall, or worse in an individual case.
 
Some cases in which judges have varied based on a disagreement with the meth guidelines are:  United States v. Santillanes, 274 Fed. Appx. 718, 718-19 (10th Cir. 2008) (remanding for resentencing because government conceded that it was error for court to refuse to address defendant’s argument that it should reject the guidelines’ policy of treating mixed methamphetamine differently from pure methamphetamine); United States v. Goodman, 556 F.Supp.2d 1002, 1016 (D. Neb. April 14, 2008) (finding in conspiracy to manufacture methamphetamine case that “[a] variance is appropriate in view of the fact that the Guidelines at issue were developed pursuant to statutory directive and not based on empirical evidence.”); United States v. Nincehelser, 2009 WL 872441, *4-5, 7 (D. Neb. March 30, 2009) (same); United States v. Hubel, 2008 WL 5434383, *7 (D. Neb. Dec. 30, 2008) (same); United States v. Castellanos, 2008 WL 5423858, *7 (D. Neb. Dec. 29, 2008) (same); United States v. Rocha, 2008 WL 2949242, *6 (D. Neb. July 30, 2008) (same for conspiracy to distribute and possess with intent to distribute methamphetamine mixture); United States v. McCormick, 2008 WL 268441, *10 (D. Neb. Jan. 29, 2008) (same for possession of precursor chemicals because those guidelines, “were, like the drug-trafficking Guidelines, determined with reference to statutory directives and not grounded in empirical data”).

- Bremer Meth Yield Report

- DEA Letter RE Uncertainty Meth

- Meth Amendment History

- USSC Meth Report

- Meth (PowerPoint)

--
Amy Baron-Evans
Sentencing Resource Counsel
Federal Public and Community Defenders
Federal Defender Office
51 Sleeper Street 5th floor
Boston, MA 02210
(617) 429-2403 cell
(617) 391-2253 office direct dial
(617) 223-8061 office main number
(617) 223-8080 fax

On April 13, the USSC unanimously voted in favor of an amendment permitting a downward departure for illegal reentry cases under 2L1.2 in cases where the defendant has established cultural ties to the United States from childhood and those ties provided the primary motivation for the reentry or continued presence in the United States. The proposed new amendment is at application note 8 to 2L1.2. A copy of the amended passed by USSC is attached. The Commission will be sending it to Congress. Barring any action from Congress, it will take effect November 1, 2010.

- FINAL Cultural Assimilation

Denise C. Barrett
Sentencing Resource Counsel
Federal Public and Community Defenders
Office of the Federal Public Defender for the
District of Delaware
800 King Street, Suite 200
Wilmington, DE 19801

Mobile Work: (410) 474-9861
Fax: (302) 573-6041
Email: Denise Barrett

On April 13,2010, the USSC passed two amendments designed to provide courts with more sentencing options. The amendments that will be transmitted to Congress and should take effect in November 2010 are attached.

1) Part B of the amendment increases Zones B and C by one level in each criminal history category Clients with ranges of 8-14 months (CHC's I-IV) and 9-15 months (CHC V-VI) will fall within Zone B rather than C; clients in a range of 12-18 months (all CHC's) will fall within Zone C rather than D.

2) Part A of the amendment provides for a treatment departure from Zone C to Zone B. The amendment clarifies 5C1.1 n,6 by giving examples of when a treatment alternative departure from Zone C to Zone B may be appropriate for drug and alcohol abusers as well as those who suffer from "significant mental illness." Under the terms of the guideline, the court must find (A) "that the defendant is an abuser of narcotics, other controlled substances, or alcohol, or suffer from a significant mental illness," and (B) "the defendant's criminality must be related to the treatment problems to be addressed before a departure is warranted." The court should also consider "the likelihood that completion of the treatment program will successfully address the treatment problem, thereby reducing the risk to the public from further crimes of the defendant and (2) whether imposition of less imprisonment than required by Zone C will increase the risk to the public from further crimes of the defendant."

Clients in CH III or above. The guidelines continue to not recommend the use of substitutes for imprisonment for "most defendants with a criminal history category of III or above." USSC 5C1.1, n.7. The Commission, however, voted to remove the statement that "such defendants have failed to reform despite the use of such alternatives." Removal of that language should permit you to argue that your client is an exception to the general rule because he or she has not received treatment or that prior treatment was not adequate to meet the client's needs. It would also give you an opportunity to educate your judge about how relapse is common among drug/alcohol abusers and that mentally ill defendants often lack insight into their illness, which impedes their treatment and medication compliance.

Recognizing pretrial community confinement or home detention. For those of you with judges who cling to the guidelines and statutes, you may need to get creative with the sentencing statutes and recommendations to ensure that your clients get "credit" for their pretrial efforts and spend the least amount of time in community confinement, home detention, or imprisonment (for Class a and B felonies where a minimal term of imprisonment is statutorily required).

There does not appear to be any statute prohibiting a court from deciding that a defendant has already satisfied a condition of probation or supervised release. Take for example, the defendant in a 12-18 month range who receives a sentence of probation with twelve months intermittent confinement, community confinement or home detention If before sentencing your client has already completed a 60 day residential treatment program and remained on home detention for an additional 2 months, you should be able to ask the court to find that the defendant has already satisfied 4 months of the condition that he spend time in community confinement or home detention. See also 18 U.S.C. 3564(a) ("term of probation commences on the day that the sentence of probation is imposed, unless otherwise ordered by the court") (emphasis added).

The same reasoning applies to defendants sentenced to terms of imprisonment with supervised release. 18 U.S.C. 3583(a) provides that a term of supervised release commences after imprisonment, but nothing in the statute precludes a court from finding that a condition of supervised release has already been satisfied.

Do not be deterred form the general rule that a defendant's presentencing confinement in community confinement or home detention cannot be credited toward the term of imprisonment. Reno v. Koray, 515 U.S. 50 (1995). You are not asking that the court credit the time toward time in official detention under 18 U.S.C. 3583(b).

BOP placement in community confinement for the minimal term of imprisonment. Attached is the BOP memo regarding front-end designations to community confinement. Keep this in mind when structuring sentences and be sure to ask the court to recommend that BOP designate a RRC placement.

Please let us know how these changes make a difference in your cases and if they have their intended effect of encouraging alternatives to incarceration.

- BOP.Front.end.CCCdesignationPolicy.2.11.09

- Final alternatives amendment to Congress

Denise C. Barrett
Sentencing Resource Counsel
Federal Public and Community Defenders
Office of the Federal Public Defender for the
District of Delaware
800 King Street, Suite 200
Wilmington, DE 19801

Mobile Work: (410) 474-9861
Fax: (302) 573-6041
Email: Denise Barrett

Attached please find a short paper that describes the framework the Supreme Court has laid out for analyzing violent felonies under ACCA and crimes of violence under the career offender guideline. We hope folks find it helpful as they trudge thru the thicket of Taylor, Shephard, James, Begay, Chambers, and Johnson.

A semi-annual update to the annotated outline on Begay /Chambers/Johnson should be released within the next month or so.

- Violent Felony Analytical Framework Paper

If you are still having trouble getting your judges to go to 1:1, see artcle below regarding Texas cases, attached memorandum opinion from ED Texas, and this list of cases from across the country:
 
United States v. Williams, 2010 U.S. Dist. LEXIS 30810 (S.D. Ill. Mar. 30, 2010)
United States v. Greer, 2010 U.S. Dist. LEXIS 30887 (E.D. Tex. Mar. 30, 2010)
US v. Gully, 619 F. Supp. 2d 633 (N.D. Iowa 2009)
US v. Lewis, 623 F. Supp. 2d 42, 46 (D.D.C. 2009)
US v. Medina, 2009 U.S. Dist. LEXIS 82900 (S.D. Cal. Sept. 11, 2009)
US v. Owens, 2009 U.S. Dist. LEXIS 70722, 2009 WL 2485842 (W.D. Pa. Aug. 12, 2009)
US v. Luck, 2009 U.S. Dist. LEXIS 71237, 2009 WL 2462192 (W.D. Va. Aug. 10, 2009)
US v. Carter, 2009 U.S. Dist. LEXIS 73094 (W.D. Va. Aug. 18, 2009)
Henderson v. US, 2009 U.S. Dist. LEXIS 83208 (E.D. La. Sept. 10, 2009)

Judges begin sentencing crack cocaine offenders same as powder

5:50 PM Fri, Apr 02, 2010 | Permalink | Yahoo! Buzz
Jason Trahan/Reporter    Bio |  E-mail  |  News tips

While Congress works on legislation to correct the historic inequity in federal crack cocaine sentencing -- a person convicted of crack cocaine possession gets the same mandatory jail time as someone with 100 times the same quantity of powder cocaine -- federal judges have begun to mete out their own fairer sentences.

Locally, U.S. District Judge Ed Kinkeade in Dallas and U.S. District Judge Terry Means in Fort Worth have sentenced crack defendants on a 1 to 1 ratio, said Richard Anderson, head of the federal public defender's office for the Northern District of Texas. U.S. District Judge Barbara Lynn has "reached the equivalent result through use of a variance, but I don't believe she stated the ratio on the record," he said.

This past Tuesday, on March 30, U.S. District Judge Leonard Davis in Tyler became the first judge in the neighboring Eastern District of Texas to issue such a sentence, according to an alert sent out by Kenneth Hawk, with the federal defender's office in Tyler.

According to Hawk:
Judge Davis adopted the current national trend toward equalization of the two forms of the same drug, rejected the Guidelines in their current form, and declared that beginning today and from this point forward, he will sentence Defendants convicted of Federal crack cocaine offenses the same as if the form of the cocaine was powder. Kimbrough was of enormous benefit to the Court in his decision.

This decision had and will have a profound impact in that the first two defendants went from 70-87 months down to 24 months and from 108-135 months to 60 months on the second (mandatory minimum prevented further reduction).

Please note that, to our knowledge, no other Eastern District Courts have granted [or even ruled] on the recent Motions, but Judge Schneider has a sentencing on this issue next week so stay tuned.

- 3.30.10 Memorandum Opinion

Amy Baron-Evans
Sentencing Resource Counsel
Federal Public and Community Defenders
Federal Defender Office
51 Sleeper Street 5th floor
Boston, MA 02210
(617) 429-2403 cell
(617) 391-2253 office direct dial
(617) 223-8061 office main number
(617) 223-8080 fax

Raise your hand if you have ever started to trace the history of a guideline provision only to discover that the Sentencing Commission has given little or no reason for it. Okay, now that everyone's hand is up, we have some good news.

After countless hours spent in the bowels of the Sentencing Commission, we have put together a website devoted to making available a large number of documents and materials from the Commission's public record that are not currently available on the Commission's website (and are otherwise difficult to obtain). These include nearly all public comment (including public comment regarding the initial guideline development process), written hearing testimony from early amendment cycles (and some others), hearing transcripts (before 1997), and various reports (including the mythical 1990 Firearms Working Group Report). The documents themselves are posted just as they appear in the records of the Sentencing Commission, and each document is fully searchable (although the site itself is not). The website address is www.src-project.org.

You can use these documents to figure out whether the provision was developed by the Commission in its characteristic institutional role, as the Sentencing Reform Act envisioned and as the Supreme Court has now re-emphasized. What comments did the Commission receive from stakeholders when it was contemplating the guideline or a subsequent change? What was said at the hearings? What did that staff report say? Because much of the administrative record is not available on the Commission’s website (especially for the earlier amendment cycles), the answers to these questions have often remained mysteries.

You should think of this website as a library or repository for primary documents. The documents are arranged by category (public comment, transcripts, testimony, reports), so the website will be most useful when you have already targeted an amendment for an inquiry into its “legislative history” and you know the amendment cycle[s] in which the issue was under consideration. This information can be obtained by looking at the Historical Note in the Manual at the end of the guideline or policy statement at issue, then at the “Reason for Amendment” in Appendix C.

In addition, the Commission publishes every proposed and final action in the Federal Register. To find the administrative record of proposed amendments that were not adopted, or to find out whether the language of a proposed amendment evolved after the public comment period, search the Federal Register database on Westlaw or LEXIS for any notice of proposed amendments to the guideline or policy statement at issue. Then go to www.src-project.org (and the Commission's website, as appropriate) to examine the relevant materials.

If you have any questions (or comments) about the website or its content, feel free to contact me.

Jennifer Niles Coffin
Research & Writing Attorney
Sentencing Resource Counsel
Office of the Federal Public Defender
810 Broadway, Suite 200
Nashville, TN 37203

615.736.5047 main
615.695.6930 direct

Attached please find a short paper that describes the framework the Supreme Court has laid out for analyzing violent felonies under ACCA and crimes of violence under the career offender guideline. We hope folks find it helpful as they trudge thru the thicket of Taylor, Shephard, James, Begay, Chambers, and Johnson.

A semi-annual update to the annotated outline on Begay /Chambers/Johnson should be released within the next month or so.

Denise C. Barrett
Sentencing Resource Counsel
Federal Public and Community Defenders
Office of the Federal Public Defender for the
District of Delaware
800 King Street, Suite 200
Wilmington, DE 19801

Mobile Work: (410) 474-9861
Fax: (302) 573-6041
Email: Denise Barrett

- Violent Felony Analytical Framework Paper

The Supreme Court released its opinion in Padilla v. Kentucky today, holding that, as a matter of federal law, counsel must inform a client when his or her plea carries a risk of deportation.
 
Justice Stevens, writing for the majority (Justices Kennedy, Ginsburg, Breyer and Sotomayor) (Chief Justice Roberts and Justice Alito concurred in the judgment, Justices Scalia and Thomas dissented), analyzes the sad march of immigration laws over the past 90 years, concluding "[A]s a matter of federal law, deportation is an integral part -- indeed, sometimes the most important part -- of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes."  He further held that "[d]eportation as a consequence of a criminal conviction is, because of its close connection to the criminal process, uniquely difficult to classify as either a direct or a collateral consequence," and that advice regarding it thus falls within the Sixth Amendment's right to counsel.
 
Because "[i]mmigration law can be complex," "[w]hen the law is not succinct or straightforward, . . . a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.  But when the deportation consequence is truly clear, as it was in this case [transportation of marijuana], the duty to give correct advice is equally clear."  The Court had no trouble finding that Mr. Padilla's counsel was constitutionally deficient in assuring him that he would not be deported for his conviction, and remanded to allow Mr. Padilla the opportunity to show prejudice.
We should all review our prior cases to see whether habeas relief may be available after Padilla.  In addition, at sentencing, we should all be arguing at sentencing for reduced sentences for our noncitizen clients, citing to Padilla's strong language about deportation being "an integral part" of the penalty they will face.
 
Congratulations to all those who argued on behalf of Mr. Padilla -- and to all of our clients, whose suffering from deportation has finally been recognized by the Supreme Court.

Sara E. Silva
Research & Writing Specialist
Sentencing Resource Counsel
Federal Public and Community Defenders
51 Sleeper St., Fifth Floor
Boston, MA 02210
(617) 599-7619  (cell)
(617) 790-2252 (direct)
(617) 223-8061 (main)
(617) 223-8090 (fax)

Career Offender, ACCA, SORNA, BOP med/psych care, ID Theft, Habeas

1)  Career Offender 
Congratulations to AFPD Erik Hanshew in WD Texas recently got a sentence of 120 months (the mand min) where the career offender range was 188-235 months, in US v. Fernandez, NO. EP-09-CR-2816-PRM (WD Tex.) by deconstructing the guideline.
 
Erik (1) showed that the C.O. GL range was over three times the regular range, (2) quoted USSC findings that for Ds like his client with 2 prior drug felonies, the risk of recidivism is the same as those in the regular CHC, and that the C.O. GL does not deter; (3) cited cases from other circuits and districts; (4) attached SG briefing conceding courts free to disagree with this GL (which resulted in a GVR in Vazquez), available here.
 
Another argument you can make when the priors are state drug felonies [Erik’s client’s were federal] is that Congress required only a limited list of federal drug felonies as career offender predicates.  So even if the judge thinks the career offender guideline must be OK because it’s the product of a congressional directive [a view opposite of Kimbrough], this guideline exceeds the congressional directive. 
 
Erik got some of his material from the Deconstructing the Career Offender Guideline paper.  A newly revised paper is posted here
There is new material in the Introduction, new caselaw regarding “crimes of violence” after Begay, Chambers and Johnson, new caselaw and briefing by the SG conceding judges’ freedom to disagree with this guideline, and description of and citation to a 1988 USSC report opining that the career offender guideline creates unwarranted uniformity, treating minor offenders the same as so-called kingpins.
 
2)  GVRs in Light of Johnson/Object to Impermissible Documents
As of March 12, 2010, there have been two GVRs in light of Johnson, one in Harris v. United States, No. 08-9538 (Mar. 8, 2010), an ACCA case where the offense was lewd, lascivious or indecent assault upon a child under Florida law, and one in Williams v. United States, No. 09-5135 (Mar. 8, 2010), a career offender case where the offense was battery on a law enforcement officer. 
 
Congratulations to Craig Crawford (MD Fla) on Harris and to Brenda Bryn (SD Fla) on Williams. 
 
To find further GVRs, check the S. Ct’s orders list, which is published every 2 weeks. GVRs
 
In Johnson, Lisa’s first step was objecting to the PSR facts that established the prior felony battery.  Most facts in the PSR are from the arrest affidavit and are not permissible under Shepard.  It is important to object to the admission of any facts in the PSR that come from unapproved documents.  As stated again in Johnson, those are “charging documents, plea agreements, transcripts of plea colloquies, findings of fact and conclusions of law from a bench trial, and jury instructions and verdict forms.”  
 
3) SORNA  Congratulations to Nikki Pierce and Laura Davis in ED TN, for winning US v. Utesch, --- F.3d ---, 2010 WL 693288 (Mar. 2, 2010).  The Sixth Circuit held the indictment should have been dismissed because “SORNA became effective against offenders convicted before its enactment thirty days after the final SMART guidelines were published:  that is, on August 1, 2008.  Utesch's failure to register and his interstate travel in this case took place well before that date.”
 
4) Deficient BOP Medical/Mental Health Care
I’m attaching a transcript and two news articles regarding a case where Ali Silvert established that BOP was not providing appropriate psych meds.  Ali says it’s OK to use in your cases because it’s public record.
 
5) Important Win on ID Theft -- Flores-Figueroa applies to 1028(a)(7)
Congratulations to Michael Nachmanoff, Keith KImball and Patrick Bryant for getting the Fourth Circuit to rule in US v. Berry that the reasoning of Flores-Figueroa applies not only to 1028A but also to 1028(a)(7) (regular identity theft) - on plain error review, no less.  It’s not on Westlaw yet, so it is attached.  This ruling may be a first among the circuits.
 
6) Good result and good quote in 9th Circuit habeas case:
In Doody v. Schriro, __ F.3d __, 2010 WL 653441 (9th Cir. Feb. 25, 2010) (en banc), Judge Rawlinson, writing for the majority, said: 
 
The dissent would prefer that we simply parrot the findings made during the state court proceedings and call it a day. However, if we succumb to the temptation to abdicate our responsibility on habeas review, we might as well get ourselves a big, fat, rubber stamp, pucker up, and kiss The Great Writ good-by.
 
The case is written up here.

Amy Baron-Evans
Sentencing Resource Counsel
Federal Public and Community Defenders
Federal Defender Office
51 Sleeper Street 5th floor
Boston, MA 02210
(617) 429-2403 cell
(617) 391-2253 office direct dial
(617) 223-8061 office main number
(617) 223-8080 fax

Overview of Federal Criminal Cases
Fiscal Year 2008

Sometimes things just get past you while you are trying to just practice law. On December 1st the attached amendments to the local criminal rules go into effect. The most notable are amendments to LCrR 16.1 and LCrR 30.1. Starting December 1st your pre-trial materials ( including witness lists, exhibit lists, and exhibits ) and your requested jury charges must filed at least 14 days prior to the date set for trial ( as compared to 3 days currently ).

There are considerable issues these new deadlines create. In our rocket docket divisions (and you know who you are), the pre-trial materials are going to come due about the time of arraignment. I don't remember any trial in my 35 years that I wasn't getting discovery and notification of new witnesses by the Government right up till the day before trial.

Most importantly, the Government will now be able to say 14 days prior to trial that they have prepared and can deny the 3rd point for acceptance if a plea results as the trial date approaches.

I don't know if moving the dates up will result in more sanctions, including denial of use of the evidence, if discovery deadlines are not timely met, but based on experience, I am skeptical.

As many of the Courts in their pre-trial order incorporate the local rules , beware of these new deadlines.

- Local Criminal Rules Amendments

Attached is a memo briefly explaining new guideline amendments in the areas listed below, and a motion and appellate brief mentioned therein. 
Undue Influence of a Minor
Ryan Haight Online Pharmacy Act – includes increase for all hydrocodone offenses
ID Theft
Threat Offenses
Alien Harboring Offenses
New Human Trafficking Offenses
Counterfeiting involving Bleached Notes
Intermittent Confinement
Child Pornography Guidelines Expansion
“Morphed images” Offenses
Submersible and Semi-Submersible Vessels

--
Amy Baron-Evans
Sentencing Resource Counsel
Federal Public and Community Defenders
Federal Defender Office
51 Sleeper Street 5th floor
Boston, MA 02210
(617) 429-2403 cell
(617) 391-2253 office direct dial
(617) 223-8061 office main number
(617) 223-8080 fax

- Amendments Effective 1 Nov 2009

- Holley Related Cases

- Principal Brief

The Defenders in the District of Oregon have just finished updating their search and seizure outline.

Here's the link and please forward to your CJA panel.

Amy Baron-Evans
Sentencing Resource Counsel
Federal Public and Community Defenders
Federal Defender Office
51 Sleeper Street 5th floor
Boston, MA 02210
(617) 429-2403 cell
(617) 391-2253 office direct dial
(617) 223-8061 office main number
(617) 223-8080 fax

All:
I am writing to make sure you are aware of a very valuable resource that has recently been posted on www.fd.org. It is a comprehensive article on "Departures and Variances," by David Hemingway, Research and Writing Specialist, Federal Public Defender, St. Louis, MO; and Janet Hinton, Paralegal, Federal Public Defender, St. Louis, MO. It is adapted from a chapter to be published soon in Defending A Federal Criminal Cases. Click here to be taken to the url. .
If you have difficulty with the link, the article is on the Sentencing Resource Page under the topic "The Law of Sentencing Post-Booker."
Hope all is well.
Bob

Bob Burke, Chief
Training Branch
Office of Defender Services
Administrative Office of the U.S. Courts
One Columbus Circle, NE, Suite G-430
Washington, DC 20544
(202) 502-2914
(202) 502-2911 (fax)
EMail Bob Burke