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OIG Report Criticizes BOP’s “Failure” to Implement First Step Act

The Office of Inspector General issued a report recently finding that the BOP had failed to implement substantial provisions of the First Step Act. Perhaps most critically, the BOP has yet to finalize its programming available to inmates who seek “earned-time credits.” The First Step Act mandated that BOP would create evidence-based recidivism reduction programs and make them available to inmates who could use credits from these programs to earn an earlier release from prison. The report found that 60,000 inmates have been deprived. of earned time credits despite completing their programming. The OIG report comes just as the Associated Press published an article regarding the BOP’s recent fraud, abuse, and criminal scandals, and calls for the director to be replaced.

Associated Press: 100 BOP workers have been arrested, convicted, or sentenced since 2019; Senator calls for Director to be replaced

A recent Associated Press investigation found that over 100 federal prison workers have been arrested, convicted, or sentenced for a crime since 2019, including for crimes against inmates and fellow staff members. Concluding that the agency has become “a hotbed of abuse, graft, and corruption,” the article describes specific crimes committed by BOP employees, including sexual assault, smuggling contraband, and theft.

Shortly after the article was published, Senator Dick Durbin called for Attorney General Merrick Garland to replace the BOP’s director.

Lone Member of U.S. Sentencing Commission Urges Biden Administration to Nominate New Members

The last remaining member of the U.S. Sentencing Commission, Judge Charles Breyer, is urging the Biden Administration to nominate six additional members to join the seven-member panel, which has lacked a quorum since 2019. The U.S. Judicial Conference has recommended six nominees, but the Biden Administration has yet to nominate anyone to the Commission.

Recent Supreme Court Opinions

Lange v. California (U.S. Supreme Court, June 2021)

In a 6-3 opinion with several justices concurring in the judgment, the Supreme Court reversed the denial of a defendant’s suppression motion after an officer entered his garage without a warrant after chasing him for a misdemeanor traffic offense. The Court held that the flight of a person suspected of a misdemeanor does not categorically create exigency sufficient to allow the warrantless entry into a home. Instead, a case-by-case analysis must be performed to see if, under the totality of the circumstances, there is a true emergent need to act before a warrant could be obtained.

Terry v. United States (U.S. Supreme Court, June 2021)

In a 9-0 decision (with J. Sotomayor concurring in the judgment), the Supreme Court held that a defendant who had been convicted for a crack-cocaine offense that did not carry a mandatory minimum did not have a conviction for a “covered offense” under the First Step Act and was thus ineligible to move for a sentence reduction. The First Step Act had the Fair Sentencing Act of 2010 retroactive.

Greer v. United States (U.S. Supreme Court, June 2021)

In an almost unanimous opinion, the Supreme Court held that defendants in post-conviction proceedings alleging plain error under Rehaif must make a sufficient showing that they could have presented evidence at trial that they did not know they were a felon at the time they possessed the firearm. The Court affirmed the conviction of two defendants, one who pleaded guilty and one who was convicted by a jury, after finding that neither of them had presented any evidence or argument that they were unaware that they were felons and that both had multiple prior convictions.

Recent Circuit Court Opinions

United States v. McClain (7th Cir. October 2021)

The Seventh Circuit reversed a trial court’s order under Rule 36 of the Federal Rules of Criminal Procedure, which had directed an inmate to return to prison after he had finished his sentence in a separate case. While the court had initially sentenced the defendant in two cases, and had ordered that he serve 18 months after finishing his first sentence, the court was inconsistent in its oral pronouncement and its written judgment. Errors by the court itself are not “clerical errors” under Rule 36, so Rule 36 was not applicable.

United States v. Wilks (7th Cir. October 2021)

The Seventh Circuit reversed a trial court’s bond revocation. The Court held, for the first time, that the standard of review for a revocation decision is an independent review with due deference to a trial court’s findings of fact. The Court held that the trial court here failed to make explicit findings by clear and convincing evidence or sufficiently state why detention was necessary under the circumstances.

United States v. Goodall (9th Cir. October 2021)

The Ninth Circuit affirmed a defendant’s conviction and sentence after he argued that they were illegal in light of US v. Davis, where SCOTUS held that conspiracy to commit Hobbs Act robbery is not a predicate crime of violence under 924(c). The Court held that the defendant’s challenge was foreclosed by his appeal waiver, and the exception to appellate waivers from US v. Torres only applies to illegal sentences, not convictions.

The Federal Docket

The Federal Docket is a monthly newsletter providing lawyers and the community a summary of recent important decisions in the area of federal criminal law from the United States Supreme Court and the Circuit Courts of Appeal. The opinions are compiled, summarized and analyzed by Tom Church, an attorney in our firm’s federal criminal defense practice.

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