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DOJ Proposes Final Rule to Allow Inmates On CARES Act Home Confinement to Remain Free

Earlier this week, the Department of Justice proposed a final rule authorizing the director of the BOP to “allow prisoners placed in home confinement under the CARES Act to remain in home confinement after the expiration of the covered emergency period,” in this case the COVID-19 pandemic. It was previously unclear whether inmates would have to return to prison when the pandemic ends. The proposed rule includes a significant amount of background information regarding the CARES Act, home confinement, and the BOP’s emergency operations.

Comments may be submitted until July 21, 2022 through the “regulations.gov website” or mailed to the Rules Unit, Office of General Counsel, Bureau of Prisons, 320 First Street NW, Washington, DC.

U.S. Senators Strike Potential Deal Creating New Firearm Offenses; DOJ Continues Aggressively Pursuing Gun Trafficking Cases

Earlier this week, the Washington Post reported that a group of democratic and republican senators had agreed on the framework of an agreement for legislation aimed at reducing gun violence in the wake of mass shootings in Buffalo and Uvalde. The potential legislation would push states to enact “red flag” laws, require background checks for juvenile and mental health records, and create new federal criminal offenses for gun trafficking and straw purchases. The news comes as AG Garland and the DOJ’s task forces have increased enforcement actions based on unlawful firearm purchasing and distribution.

Sentencing Commission publishes report on recidivism rates for former inmates in BOP programs

The U.S. Sentencing Commission has published a report titled Recidivism and Federal Bureau of Prisons Programs: Drug Program Participants Released in 2010. The report studies the recidivism rates of former inmates who participated in some of the BOP’s programs, such as the Resident Drug Abuse Treatment Program, Occupational Education Programs, and Federal Prison Industries jobs. Among other things, the report reflects that inmates who completed drug treatment programs while in custody had a relatively lower rate of re-offending.

Recent Supreme Court Opinions

Denezpi v. United States (U.S. Supreme Court, June 2022)

In a 6-3 opinion, the Supreme Court affirmed a defendant’s federal conviction, rejecting the defendant’s argument that he could not be prosecuted by the feds after they had already prosecuted him for violations of tribal law based on the same conduct. The Court reasoned that, regardless of the fact that the federal government prosecuted both cases, the offenses being prosecuted were distinct because they were defined by distinct sovereigns–the federal government and the Utes sovereign reservation.

United States v. Taylor (U.S. Supreme Court, June 2022)

In a 7-2 decision, the Supreme Court held that attempted Hobbs Act robbery does not qualify as a “crime of violence” under 924(c) “because no element of the offense requires proof that the defendant used, attempted to use, or threatened to use force.” Applying the categorical approach, the Court held that a generic defendant could be convicted of attempted Hobbs Act robbery without using or threatening force based simply on their “intent” and their taking a non-forceful “substantial step.”

Shoop v. Twyford (U.S. Supreme Court, June 2022)

In a 5-4 opinion, the Supreme Court held that federal district courts do not have the authority under the All Writs Act to issue a transportation order for a prisoner held in state custody so the prisoner may search for exonerating evidence in an evidentiary hearing. To issue such an order, an inmate petitioner must make a showing that the evidence is admissible and supports one of their possible habeas claims. The decision limits district courts’ ability to develop and consider new evidence in Habeas cases.

Recent Circuit Court Opinions

United States v. Jackson (11th Cir. June 2022)

The Eleventh Circuit vacated a defendant’s sentence that had been enhanced under the ACCA after the district court held that the defendant’s prior conviction was a “serious drug offense.” However, the statute under which the defendant was previously convicted under state law also prohibited ioflupane, which was not a controlled substance at the time of the defendant’s federal prosecution. Citing fair notice and due process concerns, the Court concluded that sentencing courts must “apply the version of the Controlled Substance Act Schedules in place when the defendant committed the federal firearm-possession offense for which he is being sentenced,” as opposed to the schedules in effect when the defendant is convicted of his predicate state offenses.

United States v. Mendez (9th Cir. June 2022)

The Ninth Circuit affirmed a defendant’s conviction for employing, using, persuading, inducing, enticing, or coercing a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct under 18 USC 2251(a) where the defendant had placed hidden cameras in a bedroom to capture footage of a minor masturbating. The Court held that the “use” element of 2251(a) is satisfied whenever a defendant causes a minor victim to be the subject of child pornography.

United States v. Farley (10th Cir. June 2022)

The Tenth Circuit remanded a defendant for re-sentencing after holding that the district court clearly erred in calculating the guidelines and determining a sentence. The district court had rejected the parties recommended sentence, noting it would have had to depart “10 levels” to get there, where the court only would have had to depart one level. Since the court relied on that error in sentencing the defendant substantially above the recommended sentence, the error was reversible, and the Court remanded for re-sentencing.

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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