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DOJ Releases Annual First Step Act Report; Sentencing Commission Releases Updated Compassionate Release Report

Last month saw two important reports issued by the DOJ and the U.S. Sentencing Commission. The DOJ released its Annual First Step Act Report, which details the BOP’s efforts to implement the FSA, which reflects that inmates are benefiting from new programing that lets them earn time of their sentences and reduce their recidivism rates. The Sentencing Commission also released an updated Compassionate Release Report, which reflects trends among inmates requesting compassionate release or sentence reductions from the courts.

Senate Confirms Several US Attorneys and US Marshals

Last month, 10 of President Biden’s nominees for US Attorney and US Marshal were confirmed after senate republicans lifted a hold on the nominations. The US Attorneys will serve in Georgia, Nevada, Michigan, Ohio, the Virgin Islands, Utah, and New Hampshire. President Biden also announced five more nominees for US Attorney.

President Biden Appoints Pardon Attorney; Issues Over 75 Pardons and Sentence Commutations

Last month saw a lot of progress towards expanding clemency to individuals serving time in federal prison or living with a federal conviction. The Attorney General appointed a new Pardon Attorney, Elizabeth Oyer, who previously worked with the federal public defender’s office in Maryland. Shortly after her appointment, President Biden announced 3 pardons and 75 sentence commutations, mostly for individuals convicted of non-violent drug offenses. The Administration has signaled more clemency grants are forthcoming.

Recent Supreme Court Opinions

Brown v. Davenport (U.S. Supreme Court, April 2022)

In a 6-3 decision, the Supreme Court held that a federal court reviewing a state court’s denial of a habeas petition must apply the standards set forth under AEDPA and the Supreme Court’s holding in Brecht v. Abrahamson, where the Court held that a state prisoner must show that an error had a “substantial and injurious effect or influence” on his trial. AEDPA, on the other hand, sets forth a standard that is more difficult to meet–the state prisoner must show that the state court’s judgment was “contrary to” or an “unreasonable application” of “clearly established federal law.”

Accordingly, state prisoners challenging their convictions in federal court will not only have to show error or ineffective assistance of counsel at the trial level and error at the appellate level, they will also have to show prejudice under Brecht and that the appellate courts that affirmed the judgment did contrary to, or in an unreasonable application of, clearly established federal law.

Hemphill v. New York (U.S. Supreme Court, January 2022)

In a 8-1 opinion, the Supreme Court reversed Hemphill’s conviction and remanded his case for a new trial. The Court held that the admission of a transcript from another suspect’s plea allocution implicating Hemphill violated Hemphill’s Sixth Amendment confrontation right. The Court rejected its previous “reliability” exception to the confrontation requirement—drawn from Ohio v. Roberts, 448 U.S. 56 (1980)—clarifying that the only real exception permitted was in the case of an unavailable witness whom the defendant had already had an opportunity to cross-examine on the same matter. The Court also rejected the assertion that the “opening the door rule” applied in the context of the Confrontation Clause.

Wooden v. United States. (U.S. Supreme Court, March 2022)

The Supreme Court issued a significant opinion regarding the applicability of the Armed Career Criminal Act (“ACCA”) to a defendant with multiple convictions that arise from a single criminal episode. William Dale Wooden was sentenced to a mandatory minimum of 15 years in prison under the ACCA based on the district court finding that he had several prior convictions for a “violent felony” based on his prior convictions for burglary. Wooden had committed 10 burglaries that were charged as separate counts in an indictment, and he pleaded guilty to all of the counts. The Supreme Court reversed the district court, holding that Wooden’s prior convictions counted as only one prior conviction for the purposes of the ACCA since the burglaries arose out of “a single criminal episode in 1997,” when Wooden broke into a storage facility and then stole items from 10 separate storage units. These successive burglaries occurred on “one occasion” and thus could not be counted as separate convictions.

Justice Gorsuch concurred, emphasizing the importance of the rule of lenity. His concurrence includes a lengthy discussion of the rule, its origins, and its significance.

Recent Circuit Court Opinions

United States v. Rife (6th Cir. May 2022)

The Sixth Circuit affirmed a defendant’s conviction for having sex with a minor while living or traveling abroad. While the Court held that the statute at issue (18 USC 2423(c)) was not authorized under the Foreign Commerce Clause of the Constitution, Congress had the authority to criminalize having sex with minors abroad based on an international treaty and Congress’s authority to enact laws that are “necessary and proper” to enforce the treaty.

United States v. Abreu (3rd Cir. May 2022)

The Third Circuit vacated a defendant’s sentence after holding the district court improperly enhanced the defendant’s offense level under the Guidelines based on the defendant’s prior conviction for conspiracy to commit second degree murder. The plain text of the relevant Guidelines provision does not include “conspiracy” under the definition of “crime of violence,” and courts may not rely on commentary to increase a defendant’s Guidelines range when the commentary goes beyond the plain text of the Guidelines.

United States v. Chavez (10th Cir. March 2022)

The Tenth Circuit reversed a district court’s dismissal of attempted bank robbery charges under 18 USC 2113 where the district court found that the defendant’s attempt to hold up two victims at gunpoint and force them to withdraw money from an ATM did not amount to an attempted “bank robbery” since the defendant would be robbing them, not the bank. Deepening a circuit split between the Fifth Circuit and Seventh Circuit, the Tenth Circuit reversed, concluding that “using force to induce a bank customer to withdraw money from an ATM is federal bank robbery.”

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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