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DOJ Announces New Unit to Prosecute “Domestic Terrorism” Cases

Last week, the Department of Justice announced a new effort to target and prosecute “domestic terrorism” cases” by establishing a new unit within its National Security Division. Since there is no specific law criminalizing “domestic terrorism,” as there is international terrorism, the new unit will likely investigate and prosecute offenders under federal laws aimed at protecting government property, prohibiting unusual weapons, interstate threats, firearm offenses, arson, and hate crimes.

Justices Sotomayor and Barrett Criticize Sentencing Commission Vacancies

Justice Sotomayor, joined by Justice Barrett, issued a statement regarding the denial of certiorari in a case addressing the circuit split over the proper definition of “controlled substance offense”under the career offender sentencing guidelines. The justices were critical of the fact that “the Sentencing Commission has not had a quorum for three full years,” highlighting the “direct and severe consequences for defendant’s sentences” absent a functioning Commission.

DOJ Issues New Rules Allowing Inmates to Earn More “Time Credits” Towards Reducing Their Sentences

In significant news to sentencing reform advocates, the Department of Justice recently announced a new rule interpreting the First Step Act’s provision on “earned time credits,” which allow inmates to earn sentence reductions by completing certain programs. Under the new rule, eligible inmates can earn up to 10 days of “time credits” for every 30 days of “successful participation in evidence-based recidivism reduction programming or productive activities.” Certain inmates are not eligible, including sex offenders, deportable inmates, and inmates with convictions for violent crimes or under 924(c).

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. Cozad (10th Cir. January 2022)

The Tenth Circuit vacated a defendant’s sentence and remanded for re-sentencing after the district court imposed a higher sentence based on the defendant’s decision to plead guilty without a plea agreement with the Government. The Court concluded that a defendant’s decision whether to enter an “open plea” does not fall under one of the factors listed in 18 USC 3553, and it was therefore procedurally unreasonable for the judge to consider that fact in imposing a higher sentence.

United States v. Brandon Fleury (11th Cir. December 2021)

The Eleventh Circuit affirmed the defendant’s convictions for transmitting interstate threats under 18 USC 875(c) and cyberstalking under 18 USC 2261A(2)(B) after the defendant had created various social media accounts with aliases such as Ted Bundy and Nikolas Cruz (the school shooter from Parkland, Florida) and sent harassing and threatening messages to members of the victims’ families. The Court rejected the defendant’s First Amendment challenges, holding the cyberstalking statute was not overbroad since the elements were generally aimed at unprotected conduct with criminal intent and the statute was not unconstitutional as applied since the defendant’s speech included “true threats.”

United States v. Freeman (2nd Cir. November 2021)

The Second Circuit affirmed a district court’s order denying the defendant’s motion to withdraw his plea. The defendant had argued that the district court misstated the applicable mandatory minimum term of supervised release. The Second Circuit affirmed but noted the parties had incorrectly stated that the defendant bore the burden of persuasion to show the Rule 11 error had affected his substantial rights. Rather, it was the Government’s burden to show such an error was harmless.

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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