Sentencing

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.

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.