Sentencing

The Federal Docket

White House Announces Executive Order on “Advancing Effective, Accountable Policing and Criminal Justice Practices”

On May 25, 2022, President Biden issued an executive order aimed at creating new policies to promote trust in law enforcement, while holding officers accountable for misconduct, and improving the conditions of inmates in federal detention facilities. The order does a number of things, including increasing funding for investigating and prosecuting civil rights violations, improving law enforcement training, restricting no-knock warrants, and implementing the First Step Act to improve conditions in detention facilities and increase eligibility for early release.

United States v. Stoglin (5th Cir. May 2022)

The Fifth Circuit vacated a defendant’s sentence after holding that the district court improperly enhanced the sentence under 18 USC 3559(c). The Court concluded that the defendant’s prior convictions for aggravated assault under Texas law were not convictions for a “serious violent felony” under 3559(c) because a defendant need only act “recklessly” to be convicted.

United States v. Morehouse (4th Cir. May 2022)

The Fourth Circuit vacated a defendant’s sentence after finding that the sentencing court improperly applied the enhancement for distributing child sexual exploitation materials in exchange for valuable consideration. In doing so, the Court overruled its prior holding based on the pre-2016 Guidelines Manual and held that the enhancement only applies if there is a “two-sided exchange.”

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.

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.

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.

President Announces Seven Nominees for U.S. Sentencing Commission

After lacking a quorum for over three years, and thus not being able to develop or update the federal sentencing guidelines, the U.S. Sentencing Commission should soon have its full slate of 7 commissioners. President Biden’s nominees to the commission include former and current federal judges, former and current prosecutors and public defenders, and other advocates with experience in federal sentencing issues.

United States v. Lonich (9th Cir. January 2022)

The Ninth Circuit vacated defendants’ sentences for fraud, which had been enhanced by 20 levels under USSG 2B1.1 based on the loss resulting from the closure of a bank due to defendants’ offenses. The Court held that, where an enhancement has “an extremely disproportionate effect on the sentence,” the underlying facts must be shown by “clear and convincing evidence.” Here, it was not clear and convincing that defendants had caused the bank to collapse.

United States v. Espinoza-Roque (1st Cir. February 2022)

The First Circuit vacated a defendant’s 46-month sentence for various firearm offenses, holding that the district court erred in finding that the defendant was an “unlawful drug user” at the time of his offense. The enhancement was based on the defendant’s statement to probation, during the drafting of his PSR, that he smoked marijuana daily in the years leading up to his arrest. The Court held that this statement failed to establish the temporal nexus for the defendant’s drug use and his possession of a firearm, especially since the defendant had also told probation that he sometimes went “weeks” without smoking marijuana, and thus the district court clearly erred in relying on it for the enhancement.

U.S. Sentencing Commission Releases 2021 Annual Report and Sourcebook of Federal Sentencing Statistics

This week, the U.S. Sentencing Commission, which has lacked a quorum for 3 years, released its annual compilation of federal sentencing statistics, the “sourcebook.” The Commission’s report includes statistics regarding the length of sentences imposed based on the type of offense, the demographics of the offender, the jurisdiction for prosecution, and other measures. The sourcebook also reports on appeal issues and sentence modifications and reductions. Among the most notable stats…

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