Sentencing

The Office of Inspector General issued a report recently finding that the BOP had failed to implement substantial provisions of the First Step Act. Perhaps most critically, the BOP has yet to finalize its programming available to inmates who seek “earned-time credits.” The First Step Act mandated that BOP would create evidence-based recidivism reduction programs and make them available to inmates who could use credits from these programs to earn an earlier release from prison. The report found that 60,000 inmates have been deprived. of earned time credits despite completing their programming. The OIG report comes just as the Associated Press published an article regarding the BOP’s recent fraud, abuse, and criminal scandals, and calls for the director to be replaced.

A recent Associated Press investigation found that over 100 federal prison workers have been arrested, convicted, or sentenced for a crime since 2019, including for crimes against inmates and fellow staff members. Concluding that the agency has become “a hotbed of abuse, graft, and corruption,” the article describes specific crimes committed by BOP employees, including sexual assault, smuggling contraband, and theft.

Shortly after the article was published, Senator Dick Durbin called for Attorney General Merrick Garland to replace the BOP’s director.

The last remaining member of the U.S. Sentencing Commission, Judge Charles Breyer, is urging the Biden Administration to nominate six additional members to join the seven-member panel, which has lacked a quorum since 2019. The U.S. Judicial Conference has recommended six nominees, but the Biden Administration has yet to nominate anyone to the Commission.

The Sixth Circuit affirmed the convictions of two defendants charged with operating a large cyber fraud scheme involving fake car auctions on ebay, stolen identities, and cryptocurrency. The Court vacated their sentences, however, after finding that they erroneously received an enhancement for receiving stolen property and being in the business of receiving and selling stolen property, since the enhancement does not apply to defendants who sell property they themselves stole. The Court held that the enhancement for production or trafficking of unauthorized access devices did apply, however, even though the defendants were already being sentenced for aggravated identity theft.

The Sixth Circuit vacated a defendant’s sentence. The defendant had received two sentences for possession of a firearm by a convicted felon and by a domestic violence misdemeanant. The Court held that these two convicted should have been merged for sentencing since they were based on one act of possession.

The U.S. Sentencing Commission has released two reports this year suggesting that an increasing number of federal judges are rejecting the harsh recommended penalties in child pornography offenses. These reports include statistics showing that the Guidelines for such offenses are outdated and unable to distinguish between more and less severe cases and that, as a result, judges are rejecting the Guidelines. The reports also include statistics showing that non-violent sex offenders generally pose a much lower risk of recidivism than offenders convicted of non-sex offenses.

The U.S. Sentencing Commission recently released a new tool, the Judiciary Sentencing INformation platform (JSIN), that allows users to review the median and average sentences for defendants who were sentenced under the same Guidelines provision and who had the same offense level and criminal history category. The tool has been criticized by some attorneys, however, for excluding certain sentences from its median and averages–namely probation sentences and sentences where defendants received credit for cooperation. As a result, the average and median sentences produced by JSIN are higher than the actual average and median sentences imposed.

The Third Circuit held that the district court had plainly erred in imposing a condition of supervised release requiring the defendant to register as a sex offender under SORNA where the defendant did not have a conviction for a “sex offense” under SORNA’s definitions. The defendant was convicted of depriving the civil rights of individuals under color of law by using his position as a police officer to coerce women to engage in sexual conduct with him. The Court also held that since he was not notified of SORNA’s requirements prior to his sentencing, his appellate waiver was not entered into knowingly and voluntarily.

The Ninth Circuit reversed a district court’s denial of a motion for a sentence reduction under 18 USC 3582(c)(2), which applies when the Guidelines are retroactively amended and would have had the effect of lowering a defendant’s Guidelines range. While the district court recognized the defendant was eligible for a reduction, the Ninth Circuit held that the court had abused its discretion when it “erroneously concluded that it could not consider intervening developments affecting the mandatory minimum in its 3553(a) factor analysis.”

Joining the Fourth, Sixth, Seventh, Ninth, Tenth, and Eleventh Circuits, the Third Circuit held that a conviction for Hobbs Act robbery is not a prior conviction for a “crime of violence” under the “Career Offender” provisions of the Guidelines.