Sentencing

As the U.S. House held a hearing on criminal issues, including the applicability of the First Step Act and Compassionate Release during the COVID-19 pandemic, outgoing BOP director Michael Carvajal submitted written testimony. Director Carvajal noted that the BOP has started to award earned time credits to inmates, resulting in several hundreds being released. Most were transferred to supervised release or pre-release custody such as halfway houses. Director Carvajal also stated the BOP would be applying time credits “towards supervised release for the sentences of over 4,900 inmates.” Director Carvajal further stated that, since March 26, 2020, the BOP has released more than 37,000 inmates to community custody or home confinement, though only 9,000 of those inmates were transferred “directly pursuant to the authority granted by the CARES Act.” He also reported that the BOP is aware of 4,025 compassionate release motions being granted by courts since passage of the First Step Act, with the vast majority (3,851) coming during the pandemic. Finally, Director Carvajal reported that 1,177 inmates have been released under the Elderly Offender Home Detention Program.

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.

Justice Sotomayor, joined by Justice Barrett, issued a statement regarding the denial of certiorari in a case addressing the circuit split over the proper definition of “controlled substance offense”under the career offender sentencing guidelines. The justices were critical of the fact that “the Sentencing Commission has not had a quorum for three full years,” highlighting the “direct and severe consequences for defendant’s sentences” absent a functioning Commission.

In significant news to sentencing reform advocates, the Department of Justice recently announced a new rule interpreting the First Step Act’s provision on “earned time credits,” which allow inmates to earn sentence reductions by completing certain programs. Under the new rule, eligible inmates can earn up to 10 days of “time credits” for every 30 days of “successful participation in evidence-based recidivism reduction programming or productive activities.” Certain inmates are not eligible, including sex offenders, deportable inmates, and inmates with convictions for violent crimes or under 924(c).

BOP Director Michael Carvajal has announced his resignation and will remain interim director until a new one is nominated. The announcement comes after a series of scandals, including an AP investigation that detailed widespread abuse and criminal conduct by BOP employees.

In a new memo issued late in December, the DOJ reversed its prior position regarding what will happen to federal inmates on home confinement when the pandemic ends. Under the DOJ’s latest guidance, the BOP will keep inmates on home confinement after the emergency period under the CARES Act ends rather than send them back to prison. Now, inmates will only be sent back “where penologically justified.”

reported by NPR, a group of lawmakers in the House of representatives are proposing a new law that would transform the federal clemency process. Whereas clemency petitions are currently reviewed and adjudicated by the Department of Justice, the new law would create an independent clemency board for people convicted of federal crimes. The bill, known as the FIX Clemency Act, would create a 9-member board whose members are appointed by the President.

After bouncing between the Third Circuit and the Supreme Court, including after an en banc decision, the Third Circuit affirmed the defendant’s conviction but remanded for resentencing, reaffirming its holding that the defendant was not a career offender based on his prior state law convictions, since “the plain language of the guidelines does not include inchoate “attempt” drug crimes like the one that was used as one of Nasir’s predicate offenses.”

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 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.