Sentencing

The Fifth Circuit affirmed a defendant’s sentence as a career offender based on his prior convictions. The defendant argued that his prior convictions did not count as “controlled substances” under the Guidelines since the Guidelines themselves do not include inchoate drug offenses like attempt and conspiracy–only the commentary to the Guidelines does. The Fifth Circuit deepened a circuit split by holding that the commentary are still binding on courts notwithstanding the Supreme Court’s recent decision in Kisor v. Wilkie.

The Eleventh Circuit affirmed a defendant’s ACCA-enhanced sentence. While the defendant’s three prior convictions under Alabama law were punishable by less than ten years under Alabama’s sentencing guidelines, the Court relied on the statutory maximum of over 10 years for those convictions in holding that they were “serious drug offenses” under the ACCA.

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.

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.

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.”

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.

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.

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.

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.

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.