Sentencing

The Eleventh Circuit became the first, and so far the only, circuit court to hold that district courts considering sentence reductions motions under 3582(c)(1)(A) are bound by the criteria under USSG 1B1.13. To date, seven other circuits have held that district courts have discretion to determine if an inmate has presented extraordinary and compelling reasons warranting a reduction. District courts in the Eleventh Circuit now have much less discretion to reduce an inmate’s sentence.

The U.S. Sentencing Commission has issued a “Retroactivity Data Report,” reflecting the data showing how many inmates have had their sentences reduced under the First Step Act’s retroactive sentencing provisions for crack-cocaine offenders. The data includes a break down by criminal history category, whether the offender had a firearm, and the average reduction.

The Sixth Circuit held that the disparity between a defendant’s actual sentence and the sentence that he or she would have received if the First Step Act’s amendments applied can, along with other factors, constitute extraordinary and compelling reasons warranting a sentence reduction.

BOP Director Michael Carvajal testified before the Senate on April 15, 2021. He testified that the BOP does not currently have any immediate plans to send inmates back to prison who are currently on home confinement due to the COVID-19 pandemic. The director also testified, however, that Congress needs to pass a law to ensure inmates are not send back when the COVID-19 emergency order is lifted.

The Sixth Circuit affirmed a defendant’s sentence which was enhanced based on a prior felony conviction under Tennessee law involving marijuana. The Court held that the sentencing court erred in enhancing the defendant’s sentence based on that conviction because the Tennessee law at issue included hemp under the definition of marijuana, while hemp was distinguishable and legal under federal law. Therefore, the Tennessee conviction was not a “controlled substance offense” under the Guidelines. However, since the defendant had only objected generally at sentencing and did not articulate grounds for his objection, plain error review applied, and the sentencing court’s error here were not clear or obvious given the complexity of the issue.

The Fourth Circuit vacated a drug defendant’s sentence for two reasons. First, it held that, despite there having been no hearing where sentencing counsel testified, the record was sufficient to establish that defendant received ineffective assistance when her counsel waived meritorious objections to the guidelines that would have resulted in a lower range and where he put his efforts into getting her in a drug program despite not knowing the program’s requirements for admission. The Court also held that the defendant’s 17-year sentence was substantively unreasonable where the sentencing court failed to consider her severe opioid addiction and that her sentence was significantly longer than those of similarly-situated defendants across the country.

This month, a group of current and former prosecutors and law enforcement officials issued a “Joint Statement on Sentencing Chances and Addressing Past Extreme Sentences.” The group is calling for reforms including the expansion of compassionate release, new agencies or units to review long sentences, and prospective limits on prosecutors’ ability to charge individuals for offenses that carry especially long mandatory minimums.

The Fifth, Ninth, and Tenth Circuits have issued opinions over the past few weeks holding that district courts have broad, independent discretion in determining whether an inmate has established “extraordinary and compelling reasons” warranting a sentence reduction under 18 USC 3582(c)(1)(A). The courts join the Second, Fourth, Sixth, and Seventh Circuits in recognizing the broad discretion of district courts, creating a substantial majority of the circuits. The other circuits have not yet addressed this issue.

The Ninth Circuit affirmed a defendant’s sentence after the defendant challenged the district court’s application of an enhancement based on the defendant’s prior conviction under 924(c), which the sentencing court considered a “controlled substance offense” warranting an enhancement. The Court held that a sentencing court may apply the modified categorical approach to determine whether a defendant’s underlying “drug trafficking crime” under 924(c) was a “controlled substance offense” under 4B1.2.

The Seventh Circuit remanded a defendant’s 2255 motion for an evidentiary hearing, holding that the defendant had made a sufficient showing that he may have received ineffective assistance of counsel based on his lawyer’s failure to argue that his Hobbs Act robbery was not a crime of violence under the career offender provision of the sentencing guidelines. While the Seventh Circuit had not yet decided whether Hobbs Act robbery was a crime of violence at the time of the defendant’s sentencing, other circuits had, the categorical approach under the Guidelines was well-known, and this was enough to warrant at least a hearing to determine whether the defendant’s counsel failed to reasonably investigate the issue before the defendant’s sentencing.