Crack
NAFD has filed an amicus brief in support of the petition for certiorari in US v. Dunphy,
arguing that Booker applies in 3582(c) proceedings.  Thanks to Judy Mizner and David
Lewis for their work on the brief.  It is the 7th item down on this page of sample pleadings
relating to retroactive application of the crack reduction. 
http://www.fd.org/odstb_CrackSampleMotions.htm.
 
In U.S. v. Sanchez, __ F.3d __, 2009 WL 878189 (3d cir. April 3, 2009), the Third Circuit
held that the D could not get relief where the first sentence was pursuant to an 11(c)(1)(C)
agreement.  Sarah Gannett finds a silver lining in the following language for the "based on"
approach in cases involving the career offender guideline or mand mins with 3553(e):  "The
question is what is the sentence based on, and the answer depends on what happened in court. 
Because district courts, not parties, impose terms of imprisonment, s 3582(c)'s language
directs our attention to what the District Court considered in sentencing the defendant. 
Here, the record shows that Sanchez was sentenced based on a binding plea agreement under
Rule 11(e)(1)(C) and not on a range from the Sentencing Guidelines."
 
In U.S. v. Allen, Slip Copy, 2009 WL 691256 (2d Cir. Mar. 16, 2009) (a summary
non-precedential order), the Second Circuit agreed that a crack sentence, resulting from a
3553(e)/5K1.1 departure, is eligible for a reduced sentence if the court considered the
guidelines at the original sentencing, BUT that finding will not be presumed from a silent
record and so no remand.  Of course, most cases do not have such findings, so D must
rely on the judge's memory of what s/he considered at the original sentencing.
 
Stat Rape Not a Violent Felony
US v. Christensen, 559 F.3d 1092 (9th cir. 2009).
Statutory rape under Washington state law not categorically a violent felony because
intercourse with a minor over 14 may be consensual and so not violent or aggressive. 
Congratulations to AFPD Tina Hunt, E.D. Wa.
 
Deconstruction
Illegal Re-Entry
US  v. Mondragon-Santiago, __ F.3d __, 2009 WL 782894 (5th Cir. Mar. 26, 2009)
“We read Kimbrough to allow district courts, in their discretion, to consider the
policy decisions behind the Guidelines, including the presence or absence of empirical
data, as part of their § 3553(a) analyses.”  “In appropriate cases, district courts certainly
may disagree with the Guidelines for policy reasons and may adjust a sentence
accordingly,” including 2L1.2. 
 
Even so, a presumption of reasonableness still applies to “non-empirically-grounded
Guidelines,” because “by the time an appeals court reviews a Guidelines sentence,
both the Sentencing Commission and the district court have fulfilled their congressional
mandate to consider the § 3553(a) factors and have arrived at the same conclusion.” 
Note, however, that if a guideline is not empirically-based, USSC did not fulfill its
statutory mandate to measure the effectiveness of the guideline in satisfying the § 3553(a)
purposes and revise as necessary. 
See 28 USC 991(b)(1)(A), (C); 991(b)(2); 994(m), (o), (g); 995(a)(13), (15), (16).  
See also Defender Letter to USSC, April 9, 2009, http://.../final.pdf.
 
Templates for Sentencing Memos
Thanks to Keith Donoghue, R&W, E.D. Pa., attached are two templates for deconstructing
2L1.2.  Both show that no empirical evidence underlies the 16-level bump, compare 2L1.2
sentences to lower sentences for crimes of greater seriousness, and compare current GL
sentences to pre-guidelines average sentences in immigration cases (5 months!) – recall
J. Breyer in Rita touting the possibility that the GLs might roughly approximate 3553(a)
objectives because USSC relied on empirical data of average past practice sentences. 
The longer template is for cases in which a client has previously been convicted of an
offense formally qualifying as a "crime of violence" or drug trafficking offense but
there are mitigating circumstances surrounding the prior that make it an unsound basis
for the 16-level increase. 
 
Career Offender
On March 27, 2009, the Sixth Circuit, on the government's unopposed motion, dismissed
with prejudice the government's appeal in United States v. Funk. See http://www.fd.org/pdf_lib/funkjamesdismissalorder.pdf.
This means that the split 6th Circuit panel decision applying the "closer review"
dictum in Kimbrough to create a two-tiered standard of review for substantive
reasonableness and to hold that a downward variance based on a district court's
policy disagreement with the career offender guideline is "improper" is permanently
and forever vacated.
 
Child Porn Deconstruction
Troy Stabenow’s paper has been updated.  The revision includes additional data not
available in the May and July 2008 versions of this article, and changes the examples
in Part VII to reflect current statutory penalties and Guidelines.  See http://www.fd.org/pdf_lib/4%20January%202009%20edit%205b.pdf.
 
Child porn & other guidelines legislated by Congress – Violates
Separation of Powers
The government has been trying in some cases to say that a guideline based on a
congressional directive should have MORE force than any other guideline.  See
Reply by defense counsel to such an argument,
http://www.fd.org/pdf_lib/2G2.2%20Reply%20to%20Govt.pdf.
 
Mike Holley turns the tables, arguing that the number-of-images enhancement
violates Separation of Powers. 
See http://www.fd.org/pdf_lib/mistretta%20redacted.pdf.  While the number-of-images
enhancement was a direct amendment by Congress via the PROTECT Act, the argument
can be adjusted for the many directives to the Commission to add specific enhancements
to the guidelines.
 
Use this resource to find out whether the guideline in your case was affected by
one or more congressional directives, how specific the directives were, if the Commn
exceeded the directive, etc.: Congressional Directives to Sentencing Commission 1988-2008, www.fd.org/pdf_lib/SRC_Directives_Table_Nov_2008.pdf. 
 
Purposes of Sentencing – the Deterrence Myth
1)  To remind you, this paper contains a collection of the best research on deterrence,
thanks to Paul Hofer, showing that higher sentences do not deter one whit. See http://www.fd.org/pdf_lib/Sentencing%20By%20the%20Statute.2.28.09.pdf.   
 
2)  Note this from Judge Bennett in United States v. Beiermann, __ F.
Supp. 2d __, 2009 WL 467628 (N.D. Iowa Feb. 24, 2009):
 
While the public's outcry for harsher sentences in child pornography cases is certainly
understandable, there is not a single sliver of evidence in this sentencing record
remotely supporting the notion that harsher punishment would reduce the flow of child
pornography on the Internet. From the rapid growth of these cases that my colleagues
around the country and I are seeing, we cannot sentence Internet users and sharers of
child pornography fast enough or long enough to make a dent in the availability of such
material on the Internet. This does not mean that Mr. Beiermann should not receive a
lengthy sentence for his criminal conduct, but it does mean that the sentence should not
be longer simply to satisfy an objective that, while laudable, is not being achieved
according to any empirical or other evidence in this case or, for that matter, empirical
evidence in any other case or source that I am aware of.
 
3) USSC’s “Measuring Recidivism” Report,
http://www.ussc.gov/publicat/Recidivism_General.pdf, shows that a higher offense level
has no impact on specific deterrence.
 
"There is no correlation between recidivism and guideline's offense level.  Whether an
offender has a low or high guideline offense level, recidivism rates are similar.  While
surprising at first glance, this finding should be expected.  The guidelines' offense level
is not intended or designed to predict recidivism."  Id. at 15. 
 
In a related vein, what does prevent future crime?  “If, as the data indicate, abstinence
from illicit drug use, or high school completion, reduces recidivism rates, then rehabilitation
programs to reduce drug use or to earn high school diplomas may have high cost-benefit
values.“  Id. at 15-16. 
 
Empirical Research v. Congressional Directives
A couple of weeks ago, Jon Sands sent around a letter to USSC defining what empirical
data and research is and its basis in the SRA and how the Commission should handle
congressional directives.  Portions may be helpful in sentencing memos or briefs.  The
letter is now posted at http://www.fd.org/.../final.pdf.
 
En Banc Third Circuit Upholds Probationary Sentence
U.S. v. Tomko, --- F.3d ----, 2009 WL 1025876 (3d Cir. April 17, 2009)
This case received a lot of attention, even though the guideline range was only 12-18 months,
either because the D got home detention in his home (a “gilded cage,” per the govt) or because
it was previously unclear whether or not the Third Circuit would go along with Booker and
progeny.  It did, after all, determine to follow Gall, 8-5, upholding a probationary sentence
in a tax fraud case as procedurally and substantively reasonable.   
 
Third Circuit Defenders and NACDL filed an interesting amicus brief focusing on the fact
USSC ignored congressional intent and made an unsound judgment in limiting probation as
it did, which the court did not rely on (except in footnote 18 of the dissent) but you might
find useful.  http://www.fd.org/pdf_lib/Tomko_Amicus_Final.pdf.
 
Third Circuit Reverses Six-Year Below-Guideline Sentence in a Child Porn Case as
Unreasonably Long, to Correct Extreme Injustice.
U.S. v. Olhovsky, --- F.3d ----, 2009 WL 1014482 (3d Cir. 2009)
This case too has created a stir, as if the prison gates have been thrown open, but it merely
reversed a sickening travesty of justice by the judge and pretrial services.  The D was 18
years old at the time arrested, slight of build, born with a concave chest, two heart surgeries,
one as an infant, one at age 14, bullied and ridiculed at school, suicidal, cut himself with a
knife, phobic avoidance of people, no friends, lived with ill and depressed mother, all he
did was sit alone in his room with his computer and at age 15 started receiving and
requesting child porn.  He was never a pedophile, and made great strides in psycho-social
development during two years of treatment with a psychologist under contract with pretrial
services. 
 
The psychologist was so appalled by the idea of prison for this boy that he took what was
for him the unprecedented step of writing to the court, without anyone asking, to explain
why prison was entirely unnecessary and would be dangerous to D’s mental and physical
well-being.  Pretrial Services opposed the psychologist testifying at sentencing, taking
the position it would be a breach of contract to do so and threatening that he would lose
his contract if he did so voluntarily, although the contract specifically said he could
testify upon request of the court, probation, the government or in response to a subpoena. 
Defense counsel AFPD Andrea Bergman then moved for a subpoena.  In cahoots with PTS,
the court denied the subpoena, trumping up a non-existent rule that experts cannot be
subpoenaed.  Two experts submitted reports favorable to the D, consistent with the
treating psychologist, and one testified. The govt expert who never spoke to the D
submitted a report and testified that D might turn out to be a pedophile. 
 
The judge said the D’s age was the only mitigating factor, that posting on the Internet
was essentially a request for children to be raped, ignored and mischaracterized the
treating psychologist’s letter and all of the expert testimony and reports, and said the
D could turn into a “pedophile monster.”  The guideline range was 135-168 months,
capped at 120 by the stat max; defense counsel asked for probation; the court imposed
6 years. 
 
The panel found legal error in the judge’s refusal to approve the subpoena to compel
the treating psychologist’s live testimony.  The panel’s discussion of the 3553(a) factors
and purposes is worth reading, particularly its emphasis on the need to consider
individual characteristics regardless of the nature of the offense:  “[T]hese expressions
by the sentencing court reinforce our concern that the court was so offended by the
nature of Olhovsky's conduct that it sentenced the offense at the expense of determining
an appropriate sentence for the offender:  It has been uniform and constant in the federal
judicial tradition for the sentencing judge to consider every convicted person as an
individual and every case as a unique study in the human failings that sometimes mitigate,
sometimes magnify, the crime and the punishment to ensue.”  No deconstruction was
necessary, given the compelling individual circumstances, though the panel mentions in
footnote 20 the “tension between sentencing policy and sentencing practice in the area,”
citing US v. Grober with approval.  The court found factual errors, procedural errors,
and that the six-year sentence was substantively unreasonable, and remanded for re-sentencing.
 
Eighth Circuit Finally Holds that Departure Precedent does not constrain
judges from varying.
In US v. Chase, --- F.3d ----, 2009 WL 764299 (8th Cir. March 25, 2009), Judge Bye writes
that the Guidelines’ restrictive departures do not apply to the court's consideration of
variances from the guideline range under a Booker/3553(a) analysis.  The panel remanded
because the record suggests the judge denied a variance based on restrictions in 8th circuit
law concerning departures.  Good language. 
 
Minor/Minimal Role in Child Porn Case
In US v. Groenendal, 557 F.3d 419 (6th Cir. 2009), the 6th Circuit remanded for
re-sentencing where the D pled to possession of child pornography, was cross-referenced
to trafficking, and the DCT declined to give a minor role adjustment, but imposed a
below-guideline sentence.  The GL sentence was 70-87 months, the stat max was 60 months,
the court gave 42 months.  The court erred in declining to give the role adjustment.  A
minor or minimal role adjustment can be imposed when only one participant is charged.
 
Govt Restricted from Learning What Goes on in Psychosexual Evaluation
In United States v. Beiermann, 584 F.Supp.2d 1167 (N.D. Iowa 2008), Judge Bennett initially
appointed an evaluator on contract with Probation.  The defense requested two other
psychologists, and he appointed one of those two instead. The government asked whether
the parties would have access to the expert and materials additional to his assessment,
sought permission to contact him, to collect materials and information from him in advance
of the sentencing hearing (including test results and his notes of interviews with the
defendant), and to possibly call him at the sentencing hearing.  The judge said no way,
and issued a lengthy opinion describing the statutory scheme and limited case law, and
criticizing the government for complaining about the quality of this type of evidence
when it regularly relies on things like police reports. 
 
Mand Min for Aggravated ID Theft Can Be Basis for Variance from GL
Range for Non-Predicate Crimes
In U.S. v. Vidal-Reyes, --- F.3d ----, 2009 WL 884935 (1st Cir. April 3, 2009), the
First Circuit held that the district court erred in concluding that it did not have authority
to take two-year mandatory minimum under the aggravated identity theft statute into
account when it sentenced defendant for non-predicate crimes.  Congratulations to Bill Fick.
 
ID Theft 2255s
Alex Bunin reports that most of the 2255s filed to correct 1028(a) convictions from felonies
to misdemeanors have now been granted in NDNY. Attached is an example order and
amended judgment from US v. Edward Anthos.
 
Acquitted Conduct Cert Petition
Here is a cert petition recently filed in US v. White, a case in which the Sixth Circuit
upheld the use of acquitted conduct to dramatically increase a sentence.  It contains a
pure Sixth Amendment argument, an “as-applied” Sixth Amendment argument, and an
argument that the SRA did not authorize USSC to include acquitted conducted in the
calculation of the guideline range. 
http://www.fd.org/pdf_lib/White%20cert%20petitionFINAL.pdf.
 
RDAP Litigation Win
Thurman v. Thomas, Slip Copy, 2009 WL 936663 (D. Or. Mar. 30,2009).
Steve Sady filed suit regarding the interpretation of the phrase "proximity to release"
in 18 USC 3621(e)(1)(C).  BOP does not include the potential one-year sentence reduction
in prioritizing entry to RDAP, thereby reducing or eliminating the incentive, given BOP's
general delays in entering the program.  In what appears to be the first time this language
has been interpreted, Judge Haggerty states:  “[P]roper statutory construction compels the
conclusion that the BOP is required to perform wait list calculations that include the
prisoner's projected § 3621(e) release date. Failing to do so currently results in a significant
diminution or the outright elimination of the statutorily created incentive of sentence
reductions for prisoners who seek and complete RDAP.”
 
Racial disparity getting better in the states, but not in the federal system.
A new study by the Sentencing Project, The Changing Racial Dynamics of the War on
Drugs,
http://sentencingproject.org/Admin%5CDocuments%5Cpublications%5Cdp_raceanddrugs.pdf,
documents a sharp contrast between state and federal prison populations.  While the number
of persons in state prisons for a drug offense rose by less than 1% during the study period,
the increase in federal prisons was more than 32%. These latter changes are attributed to
ongoing aggressive enforcement of drug laws, including application of harsh mandatory
sentencing policies. Despite declines in the use of crack cocaine, federal prosecution and
incarceration levels for crack offenses remain high and have a stark racially disparate impact.
 
“Only” 260 human beings were disqualified from safety valve based on priors such as
driving with a suspended license. Instead of amending the guidelines to exclude minor
offenses such as driving with a suspended license from the criminal history score, USSC
seems to justify their inclusion because “only” 260 drug offenders were disqualified from
safety valve due to such minor offenses.
http://www.ussc.gov/general/20090316_Safety_Valve.pdf.  
 
Detention Pending Sentence “Safety Valve”
From NACDL listserve:
18 USC 3145(c) provides a safety valve to 3143 (detention pending sentence) which allows
a person otherwise subject to detention pending sentencing to be released under appropriate
conditions “if it is shown that there are exceptional reasons why such person’s detention
would not be appropriate.”  Although the “exceptional reasons” provision appears in a
subsection that otherwise concerns actions taken by appellate courts, appeals courts which
have addressed the issue have held that the district court has authority to determine whether
there are exceptional reasons. 
United States v. Jones, 979 F.2d 804, 805-06 (10th Cir.1992) (per curiam);
United States v. Herrera-Soto, 961 F.2d 645, 647 (7th Cir.1992) (per curiam);
United States v. DiSomma, 951 F.2d 494, 496 (2d Cir.1991);
United States v. Carr, 947 F.2d 1239, 1240 (5th Cir.1991) (per curiam);
United States v. Garcia, 340 F3d 1030 (CA9, 2003);
United States v Thompson, 951 F2d 351 (CA6, 1991, unpublished order);
United States v Cook, 42 Fed.Appx. 803 (CA6, 2002, unpublished decision);
United States v. Hill, 47 F.3d 1171, 1995 WL 19367 (6th Cir.1995).
 
Guideline Amendments
The USSC is considering, as usual, various guideline increases related to but not
required by the following congressional actions:
 
1. Identity Theft Restitution and Enforcement Act of 2008
2. Ryan Haight Online Pharmacy Consumer Protection Act of 2008
3. Drug Trafficking Vessel Interdiction Act of 2008
4. Court Security Improvement Act of 2007
5. William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008
6. Influencing a Minor
7. Commission of Offense While on Release
8. Counterfeiting and "Bleached Notes"
9. Miscellaneous Amendments Relating to the Housing and Recovery Act of 2008;
Child Soldiers Accountability Act of 2008; Judicial Administration and Technical
Amendments Act of 2008; Effective Child Pornography Prosecution Act of 2007 and
the PROTECT Our Children Act of 2008; Firearms Guideline, §2K2.1; and 18
U.S.C. § 2252A(a)(7)
Defender public comment is here,
http://www.fd.org/pub_SentenceLetters.htm, and all public comment is here:  http://www.ussc.gov/pubcom_200903/PC200903.htm.
 
For the written and oral testimony for the public hearing on March 17-18 at which
FPD Donna Elm, SRC Staff Atty Jennifer Coffin, and FPD/Guideline Committee
Chair Jon Sands, and former AFPD Leslie Whitcomb Fierst, testified on behalf of
the Defenders, see http://www.ussc.gov/AGENDAS/20090317/Agenda.htm.

Anthos, Edward; Order

Anthos, Edward; Amended Judgement

Kimbrough Challenge to 16 - Level Enhancement

Mitigated Circumstances Challenge to 2L1.2 16 Level Enhancement