Sentencing

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.

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.

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…

The Supreme Court issued a significant opinion regarding the applicability of the Armed Career Criminal Act (“ACCA”) to a defendant with multiple convictions that arise from a single criminal episode. William Dale Wooden was sentenced to a mandatory minimum of 15 years in prison under the ACCA based on the district court finding that he had several prior convictions for a “violent felony” based on his prior convictions for burglary. Wooden had committed 10 burglaries that were charged as separate counts in an indictment, and he pleaded guilty to all of the counts. The Supreme Court reversed the district court, holding that Wooden’s prior convictions counted as only one prior conviction for the purposes of the ACCA since the burglaries arose out of “a single criminal episode in 1997,” when Wooden broke into a storage facility and then stole items from 10 separate storage units. These successive burglaries occurred on “one occasion” and thus could not be counted as separate convictions.

Justice Gorsuch concurred, emphasizing the importance of the rule of lenity. His concurrence includes a lengthy discussion of the rule, its origins, and its significance.

The Fourth Circuit vacated a defendant’s sentence for possession of a firearm by a convicted felon after the district court improperly enhanced the defendant’s sentence under the ACCA. The district court did so based on finding that Hope’s prior South Carolina convictions for felony marijuana offenses were for a “controlled substance offense.” The Fourth Circuit reversed, holding that the South Carolina marijuana offenses did not meet the federal definition of “controlled substance offenses” because South Carolina’s definition of marijuana included hemp at the time, and hemp is not a “controlled substance offense” under federal law. Judge Thacker dissented based on his view that the error did not amount to “plain error.”

Sitting en banc, the Fourth Circuit held that defendant received ineffective assistance of counsel at sentencing when her attorney failed to lodge meritorious objections to the PSR and in fact waived any objections at sentencing over the defendant’s concerns. The decision was notable since the Court held there was ineffective assistance and prejudice on direct appeal, without an intervening evidentiary hearing, based on the face of the record.

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.