Recent Circuit Cases

The First Circuit held, as a matter of first impression, that a district court considering a motion for compassionate release is not bound by U.S.S.G. 1B1.13. In doing so, the Court joined every other circuit to consider the issue, except the 11th Circuit, in recognizing that district courts have broad discretion to determine whether an inmate presents “extraordinary and compelling reasons” warranting relief. Here, the defendant was serving a mandatory life sentence, and the Court added that district courts are free to consider “non-retroactive changes in sentencing law on an individual basis, grounded in a defendant’s particular circumstances…” Even among the circuits that agree 1B1.13 is not binding, there is a split regarding whether non-retroactive changes in sentencing laws may be considered towards an inmate’s release.

The Fourth Circuit vacated a defendant’s sentence for possession of a firearm by a convicted felon after the district court improperly enhanced the defendant’s sentence under the ACCA. The district court did so based on finding that Hope’s prior South Carolina convictions for felony marijuana offenses were for a “controlled substance offense.” The Fourth Circuit reversed, holding that the South Carolina marijuana offenses did not meet the federal definition of “controlled substance offenses” because South Carolina’s definition of marijuana included hemp at the time, and hemp is not a “controlled substance offense” under federal law. Judge Thacker dissented based on his view that the error did not amount to “plain error.”

Sitting en banc, the Fourth Circuit held that defendant received ineffective assistance of counsel at sentencing when her attorney failed to lodge meritorious objections to the PSR and in fact waived any objections at sentencing over the defendant’s concerns. The decision was notable since the Court held there was ineffective assistance and prejudice on direct appeal, without an intervening evidentiary hearing, based on the face of the record.

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.

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.”

The First Circuit reversed a district court’s order denying defendant’s motion to vacate sentence and conviction under 28 USC 2255. The defendant’s appellate attorney had been ineffective for failure to raise a Brady claim, raised by all of her co-defendants on appeal, based on the government’s failure to disclose material that would have undermined the government witnesses’ credibility. The First Circuit held that “any reasonable attorney would have known of the availability of the Brady claim since the co-defendants all raised it and since trial counsel had preserved the issue by raising it in his motion for new trial.”

The Fifth Circuit vacated a defendant’s sentence and remanded for resentencing based on the district court’s erroneous application of the firearm enhancement under USSG 2D1.1(b)(1). The PSR did not include sufficient facts to establish a temporal and spatial relationship between the defendant, the gun, and the drug trafficking activity. The defendant was not shown to have any connection to or knowledge of the gun, and the district court failed to make a record of what its rationale may have been supporting the enhancement.

The Seventh Circuit affirmed the district court’s order vacating the defendant’s conviction after the defendant argued that his due process rights were violated when he was visibly shackled and restrained in a wheelchair with a stun bracelet on his arm during his state trial. The Court held that, even if the restraints were necessary, there was no finding on the record that it was necessary for them to be visible, especially since the defendant’s alleged misconduct mostly took place outside the courtroom and involved “disrespectful” words and gestures outside the presence of the jury. The error was not harmless.

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.

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.