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Last week, the BOP’s new director, Colette Peters, issued new guidance regarding how the BOP calculates and administers earned time credits under the First Step Act, which inmates can accumulate and use to reduce their sentences by enrolling in rehabilitative programing offered by the BOP. Under Director Peters’ new guidance, inmates will be able to see how many earned time credits in total they will be able to earn while serving their sentence. As a result, they will have an estimated release date based on their potential earned time credits. Inmates will also be able to continue accumulating credits while in protective custody, administrative detention, or quarantine. Additionally, the 18-month cut-off for earning credits has been eliminated.
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The BOP has recently been criticized for interpreting the First Step Act narrowly and denying earned time credits to many inmates who sought to have their sentences reduced.
In particular, the BOP had been using an “interim calculation policy” since January 2022 that allowed eligible inmates to accumulate time credits up to 365 days (1 year) “or 18 months from their release date, whichever happens first.” In other words, inmates serving shorter sentences were unable to maximize the amount of time their sentences could be reduced. A district judge in the Southern District of New York recently struck down this rule, holding that this 18-month cut-off date was not consistent with or authorized by the Final Rule published in the Federal Register.
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Boasting a full quorum for the first time in years, the U.S. Sentencing Commission recently met and voted on its most pressing priorities for 2022. At the top of the list is implementing the First Step Act, specifically the guidelines governing motions for sentence reductions under 18 U.S.C. 3582(c)(1)(A), also known as “compassionate release.” The deadline to submit guidelines amendments to Congress is May 1, 2023. The Commission has published its other reform priorities, which include amendments to the drug trafficking guidelines (including the safety valve), the firearm offense guidelines, the career offender guidelines, the criminal history guidelines, whether guidelines commentary can be binding, and whether acquitted conduct can be considered in calculating a defendant’s guidelines or imposing a sentence.
Recent Supreme Court Opinions
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In a 6-3 opinion, the Supreme Court held that the prosecution in a “pill mill” case, where a doctor has been charged with unlawfully prescribing drugs, must prove beyond a reasonable doubt that the doctor was acting in a manner not authorized by the statute, i.e. that the doctor knew that their prescribing practices were unauthorized and was not acting in “good faith.” Previously, doctors could be convicted if their prescriptions were not for a legitimate purpose or otherwise not within the usual course of a professional medical practice–a standard resembling negligence.
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In a 5-4 opinion, the Supreme Court held that courts considering an inmate’s motion to reduce sentence pursuant to Section 404(b) of the First Step Act, which applies to crack-cocaine convictions, may consider all relevant materials when considering whether to modify, and by how much, the inmate’s sentence. Some legal scholars believe the opinion should help resolve the circuit split regarding what circumstances a court can consider when reviewing an inmate’s motion for “compassionate release.”
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In a 6-3 opinion, the Supreme Court held that an officer’s interrogation in violation of Miranda does not create a constitutional claim under 42 USC 1983. The Court took a narrow view of Miranda warnings as merely a vehicle to protect other underlying rights, not as an underlying right itself.
Recent Circuit Court Opinions
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The First Circuit vacated a defendant’s conviction for attempted coercion and enticement of a minor. The Court held that the trial court erred in excluding certain expert testimony from a clinical psychologist. While the trial court had allowed the witness to testify as an expert in the field of internet sexual behaviors, it erred in prohibiting the witness from opining on the defendant’s internet chats and whether chats like his met the pattern shown by child predators who communicate with minors online.
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The First Circuit vacated the sentence of a former police officer convicted of RICO conspiracy. The Court held that the district court erred in considering the PSR’s mere mentioning of the defendant’s prior administrative complaints, without more to substantiate them, as a basis for an upwards variance from the Guidelines.
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The Fourth Circuit vacated a defendant’s convictions for committing a crime of violence while failing to register as a sex offender. The Government dismissed other charges against the defendant and allowed him to plead guilty to one charge conditionally so he could appeal whether his underlying kidnapping offense was a “crime of violence,” and after an intervening opinion held that kidnapping isn’t, the Court held that the district court erred in allowing the Government to reinstate the original charges against the defendant since the Government was still bound by its prior plea agreement.
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.