Sentencing

The Moritz College of Law at Ohio State University has compiled a list of criminal justice ballot measures in the 2020 election, by state and by type of reform, to inform voters of what drug reform initiatives or criminal justice reforms are on the ballot in their states. The article lists, for example, Arizona as the only state where possession of any amount of marijuana is a felony and where voters can vote to legalize recreational weed after the initiative barely failed in 2016. The article also lists measures in California to allow certain felons to vote and reform cash bail. Oregon, on the other hand, will have a ballot measure giving residents the power to decriminalize possession of any kind of drug.

The Tenth Circuit vacated a defendant’s sentence, holding that the district court applied the wrong legal standards in denying the defendant a minor role reduction under 3B1.2(b). The judge did not consider the totality of the circumstances or evaluate any particular factors, but rather denied the reduction based on the judge’s own speculation regarding the defendant’s economic motives and his lack of cooperation with the government, rather than evidence in the record.

In a matter of first impression, the Third Circuit vacated defendant’s denied motion for resentencing under Section 404 of the First Step Act and remanded for resentencing, holding the § 3553 factors must be considered anew when a sentence is modified. The Court relied on the plain text of 18 U.S.C. § 3582, § 404 of the First Step Act, and § 3553, which all refer to “imposing” a sentence and thus require consideration of factors relevant to imposing a sentence, such as a defendant’s post-sentence rehabilitation.

The Sixth Circuit under abuse of discretion vacated the defendant’s sentence and remanded for resentencing, holding that upward variance applied by the district court based on the defendant’s criminal history was unreasonable because it applied too much weight to a prior conviction and parole violations from the same offense. The Court also held that it was the defendant’s first firearm offense, a 15-year gap existed from prior dangerous conduct, and compared to similar cases, the doubling of his sentence had no meaningful relationship to his likelihood of reoffending.

The Sixth Circuit vacated a defendant’s sentence for healthcare fraud based on the district court’s abuse of discretion in attributing losses to the defendant stemming from his wife”s use of forged prescriptions and referral payments since there was no evidence that he agreed to undertake those acts. The Court held that while jointly undertaken criminal activity can be used to determine conspiracy criminal liability, the acts of a co-conspirator cannot be used in the scope of conduct analysis to calculate a defendant’s offense level under the sentencing guidelines if the defendant did not agree to undertake the specific activity, though those acts could be held against the defendant in calculating restitution.

In a matter of first impression, the Second Circuit became the first circuit court to examine the effect of the First Step Act on the compassionate release statute, 18 U.S.C. 3582(c)(1)(A), and its counterpart U.S.S.G. 1B1.13. The Court held that the First Step Act gives district courts broad discretion to define what circumstances constitute “extraordinary and compelling reasons” warranting an inmate’s release.

The Eleventh Circuit vacated the defendant’s sentence because the district court failed to apply a provision of the Sentencing Guidelines that would have reduced the defendant’s sentence by the amount of time served in a separate but related case, holding that the Guidelines are still binding if they do not enhance a defendant’s sentence or mandate imposition of a sentence within the Guidelines range.

The Eleventh Circuit vacated six defendants’ sentences because their RICO conspiracy convictions did not qualify as violent crimes under 18 U.S.C. § 924(c). The Court also held that one of the defendant’s sentences was unreasonable.

The Eleventh Circuit rejected a number of the defendant’s challenges and affirmed his conviction for Hobbs Act robbery, holding among other things that defendant’s robbery of a store was sufficient to “affect” interstate commerce and that no commercial relationship was required between the victim and defendant. The Court also upheld the defendant’s 7 and 25-year sentences under 18 U.S.C. § 924(c), holding that changes to the mandatory minimum did not apply retroactively to cases pending on direct appeal. The Court also held there was no due process violation in the Government’s use of a photo array; no Rule 403 abuse of discretion permitting video evidence; no Eighth Amendment violation when sentences were well below statutory maximums; and sentences were not substantively unreasonable when all relevant facts were considered and weighed.

President Trump has nominated five individuals, including four judges, to sit on the U.S. Sentencing Commission.The president’s picks have elicited criticism from advocates of criminal justice reform on both ends of the political spectrum, especially the president’s choice of three judges who have well-established reputations of being “tough on crime” and imposing long sentences.