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General News
Great New Decision from Judge Bennett in a Meth/Pseudoephedrine/Career Offender Case. Opinion
Attached is a new report that analyzes recidivism rates of federal probationers and those on supervised release. Report
Here is a beauty of an opinion from Judge Gleeson, which dismantles the drug guideline and calls for the Commission to immediately lower the drug guidelines by 1/3 and de-link them from mandatory minimums. Opinion

Subject: Sixth Circuit denies rehearing on decision upholding 3582(c)(2) relief for career offender who received a variance to crack guideline

In US v. Jackson, 678 F.3d 442 (2012), a split panel upheld relief under 3582(c)(2) where the defendant was a career offender but sentenced within the crack guideline by virtue of a variance.
The government moved for panel rehearing. Rehearing was denied July 9, 2012.
I am attaching Jackson's opposition to rehearing, which contains a decent argument for why the Commission's new commentary defining "applicable guideline range" to mean only the range before any departure or variance is not binding.
One caution: On p. 6, it says 3582(c)(2) gives the Commission the authority to decide whether to amend, whether to make retroactive, and by what amount a defendant's sentence may be reduced. In fact, 3582(c)(2) does not give the Commission the authority to do anything; that statute is directed to the courts, noot the Commission; the Commission's power comes only from 28 USC 994(a)(2)(C), (o) and (u).
For more detail on this, see attached memo at pp. 6-7.
This may not seem too important but it is. If the Commission derives authority from statutes directed to the courts (as it seems to believe), it can interpret those statutes, including deciding that courts have no authority to decide a motion under 3582(c)(2). The Commission derives authority only from Title 28.

Please see the attached memorandum transmitting new recommendations for the production of electronic discovery in federal criminal cases developed by the Administrative Office/Department of Justice Joint Electronic Technology Working Group.
ESI Protocol

http://web.me.com/gregdeclue/Site/Forensic_Instruments_files/DeClue%202011.pdf 

http://forensicpsychologist.blogspot.com/ 

The Structured Inventory of Reported Systems (SIRS)  is a widely used instrument to test for malingering.  A newer version, the SIRS-2, may be subject to legal challenge as the attached article describes. Keep this in mind if dealing with malingering assessments in your cases. 1/1/2012

Click here to read Chief Judge John M. Roll's 11/24/2010 letter to 9th Circuit Chief Judge Alex Kozinski requesting a Declaration of Judicial Emergency in the District of Arizona.

A Declaration of Judicial Emergency can affect a defendant's constitutional Sixth Amendment "speedy trial" rights. The Declaration is the court's means to continue trials when there are more trials and court hearings than judges. The Speedy Trial Act, specifically 18 USC §3161(h)((7)(C), precludes excluded time from speedy trial for "general congestion of the court's calendar," unless a Declaration of Judicial Emergency is made. 18 USC §3174.

Attached is a new paper that should prove helpful in arguing to your judges that the severity of punishment does not serve the purpose of deterrence.

The updated federal outline on search and seizure cases is linked below: http://circuit9.blogspot.com/2010/09/search-and-seizure-update.html

Attached is a new ABA opinion, dealing with whether a defense counsel may respond to a prosecutor’s request for information when the lawyer’s former client brings an IAC claim. It is dated July 14, 2010. Opinion

Manual of Model Criminal Jury Instructions, 2010 Edition
The Ninth Circuit Jury Instructions Committee has completed an extensive revision of the Ninth Circuit Manual of Model Criminal Jury Instructions. This 2010 edition of the Manual contains a number of new instructions. It is updated as to cases and statutes through July 2010.

The 2010 edition of the Manual has been submitted to West Publishing Company for publication. Although West estimates that it will be approximately three months before the print edition is available, the Manual is now available online at the Ninth Circuit's Internet and Intranet websites at this link: http://www.ce9.uscourts.gov/crim. The instructions may be downloaded from that link. Because the 2010 edition includes renumbered instructions from the 2003 edition, a conversion table is also posted online and provides equivalent jury instruction numbers in the 2003 edition.

This substantial revision of the model criminal jury instructions was completed by the incredibly hard working members and staff of the Jury Instructions Committee, which is chaired by District Judge Anna J. Brown. Other members of the Committee are: Senior Circuit Judge A. Wallace Tashima; Senior District Judge Robert H. Whaley; District Judges David C. Bury, John W. Sedwick, Richard Seeborg and Thomas J. Whelan; and Magistrate Judge Alicia Rosenberg. Chief District Judge Roger L. Hunt, a former member of the Committee, also contributed to the 2010 edition of the Manual. Please direct all questions or comments to the Committee’s staff member, Debra Landis, at (415) 355-8978 or dlandis@ce9.uscourts.gov.

Attached is an article by AFPD Doug Kellar which has been published in the Boston College Law Review, entitled, WHY THE PRIOR CONVICTION SENTENCING ENHANCEMENTS IN ILLEGAL RE-ENTRY CASES ARE UNJUST AND UNJUSTIFIED (AND UNREASONABLE TOO)
 
This should be useful in support of a variance.
Attached is a May 2010 report on the History of Street Gangs in the US, which you might find helpful in dealing with gang cases, educating judges, or combating misinformation from prosecutors and agents.

Breaking news -- the Fourth Circuit has just held that the Ex Post Facto
Clause still applies to advisory guidelines, in Paul Gill's case, U.S. v.
Derrick Lewis, No. 09-4343.

(See attached file: Lewis 4th Cir opn.pdf)

Lawyers' Ethical Stumbles Increase Online
Tresa Baldas
The National Law Journal
May 11, 2010
When a drug involved in a prior state conviction expired from or was never on the federal schedules -- important E-mail attachment
On April 13, the USSC unanimously voted in favor of an amendment permitting a downward departure for illegal reentry cases under 2L1.2 in cases where the defendant has established cultural ties to the United States from childhood and those ties provided the primary motivation for the reentry or continued presence in the United States. The proposed new amendment is at application note 8 to 2L1.2. A copy of the amended passed by USSC is attached. The Commission will be sending it to Congress. Barring any action from Congress, it will take effect November 1, 2010
Good time credit on time in state custody treated as concurrent time under USSG 5G1.3 
 
USSG 5G1.3(b) advises the judge to adjust the judgment to reflect time served in state custody for conduct related to the federal offense if the judge wants the time to be concurrent.  Although BOP gives good time credit for concurrent time in state custody after the federal sentence is imposed, Program Statement 5160.05 at 10, and for time in pretrial state custody before the prisoner reports to the federal institution, Program Statement 5880.28 at 1-40, it does not give good time credit for time in state custody served before sentencing and treated as concurrent time under 5G1.3.  Thus, if the judge announces that the sentence is 115 months and adjusts the judgment down 21 months for time already served in state custody, so that the defendant has 94 months left to serve with BOP, BOP gives good time credit only for 94 months.
 
In the attached Memorandum in Support of Petition for Habeas Corpus filed in Scheinling v. Thomas, filed April 5, 2010, Steve Sady and Lynn Deffebach make compelling arguments why good time must be given on that portion of the sentence imposed that was served in state custody and credited as concurrent time under 5G1.3(b).  See also Kelly v. Daniels, 469 F. Supp. 2d 903 (D. Or. 2007) (ordering BOP to assess good time credits for entire federal sentence including the concurrent portion served in state custody under 5G1.3).
 
This is not related to the amount of good time BOP gives for each year of the sentence imposed, which is the issue being decided in the pending case of Barber v. Thomas, and so does not depend on the outcome of that case.
Attached is a chart from Scott McGregor that the government submitted in a case in North Dakota, based on AUSA "voluntary reporting."  I count 17 cases in which the court denied restitution, one case (Paroline) in which the Fifth Circuit denied mandamus under the CVRA, two cases in which appeal of a grant of restitution is pending in the Eleventh Circuit (Staples and Freeman), and one case in which appeal of a grant of restitution is pending in the Fifth Circuit (Wright).
 
I am surprised to see so many cases in which restitution was ordered, or in a few cases agreed to.  This may not be entirely accurate so don't take it at face value, but check further if the govt files something similar in your case. 
 
I'm not sure exactly how joint and several liability works, but it may be that the total ordered cannot exceed the amount claimed.  Or, it might be that everybody's on the hook until the whole amount is paid.
 
In any event, it appears that Vicky is claiming about $151,000, and that about $276,500 has been ordered, and at least according to this list, none of those orders is on appeal.  You'd want to check my math.
 
It appears that Misty/Amy is claiming over $3 million, that $6.9 million has been ordered, and that over $6.5 million comes from the cases in which appeal is pending.  I have also heard that the Marsh Law Firm is withdrawing restitution requests when the defendant is indigent and without ability to pay now or in the future. 
Defending a Federal Criminal Case - 2010 Edition - Available Now!

It is now available for purchase!

This three-volume, hard-bound edition was written by Federal Defenders, Assistant Federal Defenders, Criminal Justice Act Attorneys, and other experienced Federal Court practitioners from across the country.

It covers many of the traditional DFCC topics federal defense lawyers have come to rely on, from the Bail Reform Act to Prosecutorial Misconduct, from Jury Selection to Challenging Illegal Searches and Seizures. But this newest edition also has chapters on the hottest topics in federal defense, making it an essential text in any federal criminal defense lawyer's library.

Chapters new to this edition include: Foreign Law, Federal Sex Offenses, Common Constitutional Issues that Arise During Trial, International Border-Crossing Offenses, Mental Health Issues in Federal Criminal Practice, Plea Agreements, the Federal Bureau of Prisons, and more!

Don’t miss out on this opportunity to learn about the newest developments in federal defense from leaders in the field!

Order your copy on-line today! http://www.fdsdi.com/publications

To order by telephone, please call 1-866-405-1300 (open from 8 a.m. to 5 p.m. EST).

February 16, 2010
Editorial
Justice Kennedy on Prisons
Justice Anthony Kennedy spoke out against excessive prison sentences this month in California, criticizing the state’s deeply misguided three-strikes law. It was a welcome message, delivered with unusual force. Much of the blame for the law, however, lies with the Supreme Court, which upheld it in a decision on which Justice Kennedy cast the deciding vote.
The overall tone of Justice Kennedy’s address to the Pepperdine University School of Law was “courtly and humorous,” according to The Los Angeles Times. He turned more serious, however, on the subject of incarceration. Sentences in the United States are eight times longer than those handed out in Europe, Justice Kennedy said. California has 185,000 people in prison at a cost of $32,500 each per year, he said. He urged voters and elected officials to compare taxpayer spending on prisons with spending on elementary education.
Justice Kennedy took special aim at the three-strikes law, which puts people behind bars for 25 years to life if they commit a third felony, even a nonviolent one. The law’s sponsor, he said, is the correctional officers’ union, “and that is sick.”
The criticism was on the mark. The state’s prison population has soared as a result of harsh sentencing laws and parole rules. California has been ordered by the courts to bring down the population of its prison system, which is badly overcrowded and unable to provide inmates with adequate medical care.
Under the three-strikes law, a man named Gary Ewing was sentenced to 25 years to life for shoplifting three golf clubs from a golf pro shop.
Mr. Ewing challenged his sentence before the Supreme Court as a violation of the Eighth Amendment prohibition on cruel and unusual punishment. By a 5-to-4 vote, with Justice Kennedy in the majority, the court rejected the challenge. The dissenters were right that Mr. Ewing’s sentence was so disproportionate to his crime that it should have been declared unconstitutional.
It’s not that the court is insensitive to excessive punishments. It has repeatedly thrown them out — when they are against corporations. In 2003, the year the court rejected Mr. Ewing’s case, it overturned a $145 million punitive damage award against the State Farm Mutual Automobile Insurance Company as so excessive that it violated the 14th Amendment due process clause.
Justice Kennedy is right that elected officials and voters should pay more attention to overincarceration. But courts also need to do their part by enforcing constitutional prohibitions on excessive punishment in cases involving people, as well as corporations.

Dillon v. US -- crack retroactivity in the Supreme Court
You probably know that the S Ct granted cert in Dillon v. US, in which Lisa Freeland, with assist from Renee Pietropaolo, represents the Petitioner.  The Questions Presented are:
 
I. Whether the Federal Sentencing Guidelines are binding when a district court imposes a new sentence pursuant to a revised guideline range under 18 U.S.C. § 3582.
 
II. Whether during a § 3582(c)(2) sentencing, a district court is required to impose sentence based on an admittedly incorrectly calculated guideline range.
 
Here are links to the briefs: 
 
Merits -- http://www.fd.org/pdf_lib/Dillon_Merits_Brief.pdf
 
Amici -- Federal Public and Community Defenders and NAFD -- http://www.fd.org/pdf_lib/Dilllon%20Defender%20Amicus.pdf
 
Amicus -- Washington Legal Foundation -- http://www.fd.org/pdf_lib/Dillon%20WLF%20Amicus.pdf
 

Dillon amicus draft. Dillon merits brief pdf format.
Immigration Consequences

The Florence Immigration Project has updated its chart on Immigration Consequences of Arizona Criminal Convictions. The chart can be accessed at http://www.ilrc.org/immigration_law/pdf/arizona.pdf.

Also, for a complete list of all of the Project’s public defender and pro se materials (most of which are in both English and Spanish), defenders can browse http://www.firrp.org/publications.html.
Below is a link to an article from Monday’s Washington Post discussing a Justice Department initiative to combat crime on Indian reservations.
http://www.washingtonpost.com/wp-dyn/content/article/2010/01/11/AR2010011102306.html?sub=AR

SCOTUS reports:
The Court also granted a second case — Dillon v. U.S. (09-6338). That case tests whether the federal Sentencing Guidelines are binding when a federal judge imposes a new sentence.  The case will test whether the Supreme Court’s 2005 ruling in U.S. v. Booker, making the Guidelines advisory only, applies in a sentence modification proceeding.  Review was granted even though the Court had previously refused to hear the same issue in a number of cases.  The U.S. Solicitor General recommended a denial in this case, too.

Attached is the filed version of the 9th Circuit Federal and Community Defender amicus curiae brief in United States v. Fox. Thanks for your comments and prompt responses. Oral argument will be held on the week of December 14.

Revised Model Jury Instructions 10/19/2009
Search and Seizure Outline. A summary of it is available at the Ninth Circuit blog:

http://www.circuit9.blogspot.com/

And the outline itself is available here:

http://or.fd.org/Search%20and%20Seizure.pdf

Several district courts have now expressly adopted a 1:1 ratio in crack cases.  The most significant is United States v. Gully, 619 F. Supp. 2d 633 (N.D. Iowa 2009).  There, the same judge (Judge Bennett) whose categorical adoption of a 20:1 ratio was upheld by the Supreme Court in Spears changed his mind after further reflection and has now adopted a 1:1 ratio for every crack case.   The court correctly calculates the guideline range under the applicable ratio, then varies to the range that would apply if the crack had been powder cocaine.  Other courts have followed suit:

United States v. Lewis, 623 F. Supp. 2d 42, 46 (D.D.C. 2009)
United States v. Medina, 2009 U.S. Dist. LEXIS 82900 (S.D. Cal. Sept. 11, 2009)
United States v. Owens, 2009 U.S. Dist. LEXIS 70722, 2009 WL 2485842 (W.D. Pa. Aug. 12, 2009)
United States v. Luck, 2009 U.S. Dist. LEXIS 71237, 2009 WL 2462192 (W.D. Va. Aug. 10, 2009).
Henderson v. United States, 2009 U.S. Dist. LEXIS 83208 (E.D. La. Sept. 10, 2009)

It may be useful to assure judges that with the current standard of review in place, and after Spears, a district judge who adopts a categorical 1:1 ratio will not be reversed.  If s/he is reversed, one would hope the Supreme Court would issue another bench slap to the court of appeals with its unappetizing "smuggled in dish." 9/2009

This morning, the Ninth Circuit granted the government's petition for initial hearing en banc in United States v. John Michael Fox, No. 08-30445. In that case, the defendant was sentenced to 360 months after having pled guilty to a crack cocaine offense. He later filed a Section 3582(c)(2) motion to reduce his sentence under the retroactive crack cocaine amendment. With a two-level reduction, the new guideline range was 292 to 365 months. AFD Kevin McCoy did a great job of advocating and persuaded the district judge to reduce Mr. Fox's sentence to time served, which was about 11 years. The district court relied on United States v. Hicks, 472 F.3d 1167 (9th Cir. 2007), which held post-Booker that the guidelines are advisory in a Section 3582 proceeding.

The government has been gunning for Hicks for some time now, and there are numerous cert. petitions pending that seek its demise, but it looks like the Ninth will have the first crack at it now. 9/2009

Here is a new Ethics opinion (09-02) that sets out what the ethical responsibilities are for a lawyer withdrawing from representation. Opinion

BOP has begun to use an inmate skills development system that is designed to identify those areas where an inmate might need additional skills (employment, cognitive/emotional, family support, financial) to successfully reintegrate into the community. Theoretically, BOP will match programming to needs. BOP has each inmate complete a preteam questionnaire (attached).

The questionnaire covers areas that should be regularly assessed as part of our social history investigations for sentencing. It will be helpful to review the questionnaire with your client before he is designated and to formulate a strategy for answering it. While most of the questions are legitimately related to known risk factors for recidivism, some of the questions may hurt our clients in the future.

Who do you blame for your incarceration? Do you have a history of domestic violence? Did you have behavioral problems as a juvenile? (This latter one in particular could well be used to label our clients "psychopathic" or anti-social personalities.). On the other hand, honest answers may help your client obtain needed programming. How you advise your client on filling out the form must be determined on a case-by-case basis. It may be better to try and make sure the PSR contains much of the information so BOP can simply refer to it when completing the skills assessment.

The form may also be useful in developing 3553a arguments. By questioning our clients about such things as whether they have witnessed domestic violence or experienced a death in the family during childhood or engage in positive activities, the government has acknowledged the relevance of those factors for treatment/rehabilitative purposes.

Cert granted in Fourth Circuit civil commitment case ...

The Supreme Court granted cert today in United States v. Comstock , No. 08-1224, to consider the constitutionality of 18 U.S.C. 4248 (enacted as part of Title III of the Adam Walsh Child Protection and Safety Act of 2006), which gives federal officials the authority to order long-term civil commitment of an individual in federal custody and deemed to be a "sexually dangerous person."

In January of this year, the Fourth Circuit (the first appellate court to address the question) held that 18 U.S.C. 4248 cannot be sustained under the Commerce Clause, the Necessary and Proper Clause, or any other provision of the constitution.

The respondants are represented by AFPD Jane Pearce in the Raleigh office, along with FPD Tom McNamara, AFPD Alan Dubois, and RWSs Lauren Brennan and Eric Brignac.

In other news...

The court also granted cert in Florida v. Powell , No. 08-1175, to address whether a suspect must be expressly advised to his right to counsel during questioning and if so, whether the failure provide this express advice vitiates Miranda v. Arizona .

U.S. Departmentof Justice Policies and Procedures Concerning: Sentencing:for Crack Cocaine Offenses. Crack guidance memo.
Judges are free to disagree with any guideline, not just crack, including guidelines that are the product of congressional directives to the Commission.
Amy Baron-Evans, Jennifer Coffin, Sara E. Noonan Post
This is a good decision from Judge McNamee regarding our motion for return of seized property. The defendant is an alleged “Mexican Mafia” member. The government seized certain property, including cash, and turned it over to the State. Our contention was that since the property was not used as evidence by the State, the government had the obligation to return it to the defendant at the conclusion of the federal proceedings, notwithstanding the fact that it had given it to the State. The court agreed. Decision

"Your job as assistant US attorneys is not to convict people. Your job is not to win cases. Your job is to do justice. Your job is in every case, every decision that you make, to do the right thing. Anybody who asks you to do something other than that is to be ignored. " Any policy that is at tension with that is to be questioned and brought to my attention. And I mean that."  Eric Holder.  
http://www.boston.com/news/nation/articles/2009/04/09/us_attorneys_told_to_expect_scrutiny/

On Dec. 1, 2008, a revised Rule 12.1 went into effect, over the vigorous objection of the Defenders and NACDL, that requires the D to disclose his alibi witness's name, address and telephone number to the government, and then if the government's rebuttal witness is an alleged victim, the D has to make a showing of need for the alleged V's address and telephone number, which previously and correctly was presumed.  If the D fails to make the showing, reciprocal discovery must be denied.  If the D makes the showing, reciprocal discovery can be denied if an "alternative procedure" is ordered. 3/2009
Revised Model Jury Instructions
Butner Study
It’s now been published in the Journal of Family Violence.  It is attached. 
Heather Williams is working on getting it thoroughly debunked.  She will be sending a request for information; please respond. 
 
In the meantime, you may have to get your own expert to debunk the study. 
AFPD Kimberly Collins is working on this with an expert, and you could contact her.
I have not reviewed the published version, but my notes on one version (which may or may not be much different than the published version) are attached.
Judge Pratt rejected it (or some version of it) in US v. Johnson, 588 F.Supp.2d 997 (S.D. Iowa 2008).
Butner Study
Butner Study Critique
Sentencing, Crack, SORNA, Second Chance Act, Butner Study, USSC, and More. Memo 3/20/09
A CRS report on "Sentencing Levels for Crack and Powder Cocaine"
Congressional Research Service's report on past, present and future sentencing realities, from history of penalties up to current circuit case law.  Also included is a discussion of the two bills now pending, one which equalizes quantities at current crack levels, the other at cocaine levels. And it's very short!
Download Sentencing Levels for Crack and Powder Cocaine - Kimbrough and the Impact of Booker 2/2009
Attached is the Federal Defenders' Memorandum in Opposition to the Department of Justice's Proposal to Amend Rule 12(b). Memorandum 2/2009
Litigation Memo: Application of BEGAY Definition of Crime of Violence
Potential Uses of Begay & Chambers: Annotated Caselaw Outline 2/2009

The report by the National Academy of Sciences is to be released this
month. People who have seen it say it is a sweeping critique of many
forensic methods that the police and prosecutors rely on, including
fingerprinting, firearms identification and analysis of bite marks,
blood spatter, hair and handwriting.

The report says such analyses are often handled by poorly trained
technicians who then exaggerate the accuracy of their methods in
court. It concludes that Congress should create a federal agency to
guarantee the independence of the field, which has been dominated by
law enforcement agencies, say forensic professionals, scholars and
scientists who have seen review copies of the study. Early reviewers
said the report was still subject to change.
Link to Article

Judicial Conference Committee on Criminal Law.  Report  1/2009
Held: Illinois' crime of failure to report for penal confinement falls outside the scope of ACCA's "violent felony" definition.
2009 WL 63882 (Jan. 13, 2009)
ID Theft, Crack, Career Offender, Acquitted Conduct, Begay, Fast Track, Alternatives to Incarceration, USSC Activities, BOP Rules  Information   1/2009
Attached is the current edition of Federal Convictions Reversed. All cases are published opinions from a either federal court of appeals or the U.S. Supreme Court granting relief to criminal defendants. These cases have been collected since approximately 1995 and are reexamined for validity at each publication. The project is cumulative, so old issues can be discarded. The document may be recirculated to any criminal defense lawyer. The only limitation is that it may not be posted or reprinted from any location that charges a fee for viewing.  12/2008
New Deconstruction Topics, Probation, Mandatory Minimum Challenge, Amended Crack GL Not Mandatory, Sex Offender Sentencing, Sex Offender Registry, Civil Commitment, USSC Membership.  Attachment  11/2008
The attached decision by Judge Block, EDNY, is a great example of how the fraud guideline, with its many repetitive and overlapping enhancements, easily overstates the seriousness of the offense, and of an objective way to reach a different sentence, i.e., compare the guideline range with sentences in similar and dissimilar cases.
On June 25, 2008, the House Subcommittee on Commercial and Administrative Law, chaired by Congresswoman Linda Sanchez, held oversight hearings on the Executive Office of the U.S. Attorneys, with a focus on immigration prosecution policies. Testifying before the Subcommittee on our behalf was Heather Williams, the First Assistant, D. Ariz (Tucson). Her testimony went well. The Subcommittee followed up with additional written questions, to which Heather responded. Her written response is attached below.  8/2008
This memo (1) parses Irizarry to show that all facts must still be included in the PSR and subjected to thorough adversarial testing, under other parts of Rule 32, the Due Process Clause, and Irizarry itself; (2) urges you to object and seek a continuance if any new facts arise, e.g., if victims or alleged victims want to be "heard"; and (3) shows that most grounds for a sentence above the guideline range are easily characterized as "departures," while most grounds for a sentence below the guideline range are not. 8/2008

In US v. Cabrera, Judge Gertner grants a minimal role reduction (4 levels) over the govt's and PO's objection, and cuts off 13 more months, imposing a 24-month sentence with alcohol treatment to follow, in a drug case. The D was a deliveryman who was drunk, lived in his car, and was to make some unspecified, small amount of money for his trouble.

Judge Gertner provides fodder for deconstructing the drug guidelines' unexplained and unsound emphasis on quantity, see in particular pp. 9-12 and footnote 6, and also uses a more effective alternative to incarceration -- treatment for alcoholism.
http://sentencing.typepad.com/sentencing_law_and_policy/2008/07/judge-gertner-a.html
A paper on Deconstructing the Drug Guidelines is in the works, but in the meantime cases like this and pp. 26-34 of the Struggle papr, http://www.fd.org/pdf_lib/EvansStruggle.pdf, can be used.

Attached is a revised paper on deconstructing the acquitted and uncharged crimes provisions of the Guidelines. We added citations to Judge Bright's concurrence in Canabia where appropriate, added a new section on notice in Part III, and revised the Promulgation and Amendment History in Part I to reflect an obscure item we had previously missed. This will replace the paper currently on fd.org shortly.
Second degree murder guideline deconstructed. Attached 7/2008
Just wanted to inform you that there's a BRAND NEW version of the Quick Reference Chart on Arizona criminal convictions, as well as the accompanying Notes offering detailed suggestions on representing immigrants in criminal proceedings!!

The Chart includes approx. 20 new Arizona statutes, while the Notes have an expanded section on immigration status as an element of Arizona statutes. To access the Chart and Notes, click here: http://www.ilrc.org/arizona.pdf
If anyone is using the child pornography article sent out last month, please switch to this version (it includes several additions and corrections): 3 July 2008 Edit.pdf

Also, here is a handy, one-page version of the chart tracking changes since 1987: Table of Changes.pdf
Attached is the Report on the Impact on the Judiciary of Law Enforcement Activities Along the SW Border. 7/2008

1) Attached is an opinion by Judge Pratt of Gall fame in a receipt of child pornography case, imposing 90 months where the GLs called for 210-240. The panel attorney attached a copy of Troy's article to his sentencing memorandum, and Judge Pratt mentioned the article during the sentencing. He agreed that the sentencing guideline should be given less consideration on that basis.
2) So that judges can cite these articles, if they like, this one on child porn and the one on career offender, are posted on the sentencing resources page of fd.org, under Deconstructing the Guidelines. More will be coming. The page looks like this:
Deconstructing the Guidelines is a special project undertaken by National Federal Defender Sentencing Resource Counsel. The papers in this section critically examine the history and basis of the most frequently encountered provisions of the U.S. Sentencing Guidelines. Judges are now invited to consider arguments that the guideline itself fails properly to reflect § 3553(a) considerations, reflects an unsound judgment, does not treat defendant characteristics in the proper way, or that a different sentence is appropriate regardless. Rita v. United States , 127 S. Ct. 2456, 2465, 2468 (2007). Judges "may vary [from Guidelines ranges] based solely on policy considerations, including disagreements with the Guidelines," Kimbrough v. United States, 128 S. Ct. 558, 570 (2007) (internal quotation marks omitted), and when they do, the courts of appeals may not "grant greater factfinding leeway to [the Commission] than to [the] district judge." Rita , 127 S. Ct. at 2463. Whatever respect a guideline may deserve depends on whether the Commission acted in "the exercise of its characteristic institutional role." Kimbrough, 128 S. Ct. at 575. This role has two basic components: (1) reliance on empirical evidence of pre-guidelines sentencing practice, and (2) review and revision in light of judicial decisions, sentencing data, and comments from participants and experts in the field. Rita, 127 S. Ct. at 2464-65. "Notably, not all of the Guidelines are tied to this empirical evidence." Gall v. United States, 128 S. Ct. 586, 594 n.2 (2007). When a guideline is not the product of "empirical data and national experience," it is not an abuse of discretion to conclude that it fails to achieve the § 3553(a)'s purposes, even in "a mine-run case." Kimbrough, 128 S. Ct. at 575.
Deconstructing the Myth of Careful Study: A Primer on the Flawed Progression of the Child Pornography Guidelines (June 10, 2008)
by Troy Stabenow, Assistant Federal Public Defender, W.D. MO
Deconstructing the Career Offender Guideline (June 16, 2008)
by Amy Baron-Evans, Jennifer Coffin, & Sara Noonan, National Federal Defender Sentencing Resource Counsel

Deconstructing the career offender guideline.  Attachment  6/2008
Attached is US v. Bartee, 2008 WL 2340224 (6th Cir. June 10, 2008), which applies Begay to USSG 4B1.2 in light of precedent consistently interpreting ACCA and 4B1.2's parallel provisions, and holds that 4B1.2 should be limited to crimes that are similar in both kind and degree of risk to the enumerated examples -- burglary of a dwelling, arson, extortion, or crimes involving the use of explosives. As the court acknowledges, this holding "narrows the scope of convictions that qualify as a 'crime of violence' under 4B1.2(a)(2), making it more difficult for the government to invoke the enhancement." Id. at *6.   6/2008
Attached is an order in which the judge finds that a 5-year mand min for a retarded 21-year-old convicted of possessing child pornography is a sentence disproportionate to his culpability, in violation of the Eighth Amendment. This could be a foot in the door in other situations, too.
Congratulations to Michael Donahoe, AFPD, D. Montana.  6/2008
1) See attached First Circuit opinion. It applies the Kimbrough analysis to the fast track guideline. As in Kimbrough, the congressional pedigree is a reason NOT to follow the guideline.
2) And from the 9th Circuit, United States v. Barsumyan, 517 F.3d 1154 (9th Cir. 2008)
"Post- Booker, defendants certainly may attack the effect of the Sentencing Guidelines by arguing that they reflect over-broad or mistaken policy priorities. Interestingly, one of the Supreme Court's most recent opinions respecting the Guidelines blessed just such a policy-based deviation from the Sentencing Guidelines. See *1159 Kimbrough v. United States, --- U.S. ----, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007) (allowing variance from Guidelines-prescribed sentencing range due to disagreement with crack cocaine/powder cocaine disparity). . . . If the operation of a particular guideline has inappropriately distorted the final range calculation, that is one factor which the district court may take into account in determining the final sentence."  6/2008
Appeal Waiver Extending to Later Revocations.  Carruth Opinion. 5/2008
Attached is a recent decision, United States v. Hunt, Nos. 06-6300/6301 (6th Cir. Apr. 11, 2008), in which a split panel of the Sixth Circuit reversed, as substantively unreasonable, a sentence of probation for a physician convicted of health care fraud. This case may represent the first and only appellate decision reversing a sentence as substantively unreasonable after Gall and Kimbrough.

Judge Boyce Martin's dissent is well worth reading, in particular the poem at the end that refers to "ignorant armies" that "clash by night." Rehearing en banc will be sought by Mr. Hunt's very competent attorney.

This decision is particularly galling because the majority relied on a made-up, pre-Gall/Kimbrough standard, i.e., reversing as substantively unreasonable because the court supposedly relied on a factor that, in the view of these two appellate judges, was an "impermissible factor." Misrepresenting the record, they said the district judge relied on her personal belief that the defendant did not have the requisite intent to commit health care fraud. They said the defendant's innocence is a factor the court cannot "properly consider" (no matter how many other factors were properly considered), because a belief in the defendant's innocence was "directly inconsistent with [the facts] found by the jury."

What the judge actually did was mitigate the sentence based on the defendant's motives and influence by another. It's hard to see how this could be an "impermissible factor," given the many imperfect defense departures the guidelines themselves encourage that go to intent, like coercion and duress, victims' conduct, lesser harms, diminished capacity, and also mitigating role.

In Gall and Kimbrough, the Supreme Court rejected this "impermissible factor" trick for reversing below-guideline sentences. In Gall, the Eighth Circuit had deemed the judge's reliance on studies regarding the brain development of young people an "improper factor," and in Kimbrough, the Fourth Circuit had deemed the disparity created by the crack guidelines an "impermissible factor." If the courts of appeals revert to this method of substituting their own judgment, we can safely assume that the only factors deemed "impermissible" will be ones that mitigate sentences, and may become the primary hook for reversing below-GL sentences as substantively unreasonable, without any comparable effect on above-GL sentences. For example, most likely, the two result-driven judges in the Hunt majority would surely say that consideration of facts the jury rejected by acquittal is entirely "permissible."  4/2008
New criminal justice act guideline regarding scheduling of Federal Death penalty case authorization.  Guideline 3/2008
Attached is another great career offender case, US v. Martin, First Circuit, March 21, 2008. Judge Ponsor went down one CH category and 91 additional months. The basis was strong family ties, D's remorse and low likelihood of recidivism, and avoidance of co-D disparity. The First Circuit relied primarily on the "broad sweep of a sentencing court's discretion" emphasized in in Gall, and rejected the government's argument that the sentence nullified 994(h) based on Kimbrough's approval of deviating from a broad policy pronouncement of the Commission.

That makes the First, Second and Seventh Circuits that have recognized the sentencing courts' broad discretion, post-Gall & Kimbrough, to sentence below the career offender guideline. See also United States v. Sanchez, __ F.3d __, 2008 WL 553517 ** 9-11 (2d Cir. Feb. 29, 2008); United States v. Marshall, slip op., 2008 WL 55989 at **8-9 (7th Cir. Jan. 4, 2008) ("[w]e must re-examine our case law" holding that "courts are not authorized to find that the guidelines themselves, or that the statutes on which they are based, are unreasonable.").

The government filed the attached letter in US v. Funk, currently on appeal in the Sixth Circuit, retracting its previous argument that courts cannot sentence outside the career offender guideline because it is based on a statute, and stating that 994(h) is not a directive to the courts, but to the Commission. It appears that this position has come down from on high at DOJ.

In Sanchez, the Second Circuit relied on this part of the Senate Report to find that 28 USC 994(h) was a directive to the Commission, not the courts:

Subsection (h) was added to the bill in the 98th Congress to replace a provision proposed by Senator Kennedy enacted in S. 2572, as part of proposed 18 U.S.C. 3581, that would have mandated a sentencing judge to impose a sentence at or near the statutory maximum for repeat violent offenders and repeat drug offenders. The Committee believes that such a directive to the Sentencing Commission will be more effective; the guidelines development process can assure consistent and rational implementation of the Committee's view that substantial prison terms should be imposed in repeat violent offenders and repeat drug traffickers.
S. Rep. No. 98-225 at 175 (1983).
Attached is Michael Nachmanoff's written testimony for the Hearing on Crack before the House Subcommittee on Crime, Terrorism and Homeland Security today. Michael did a great job in person, and Karen Wilkinson from the D. Arizona FPD Office, who is working as a detailee for the House Judiciary Committee, did a great job behind the scenes. 2/27/2008
AJ Kramer's Follow-Up Testimony for the Senate.  Attached.
AJ Kramer was invited to submit written testimony on behalf of the Defenders for the hearing before the Senate Subcommittee on Crime tomorrow regarding pending proposals to eliminate or lessen the disparity.  Attached.
Crack Summit II: Practice Tips and Lessons Learned in St. Louis.  Memorandum 1/28/2008
Fun review of notable cases applying Gall & Kimbrough.  1/16/2008
Attachment

Miriam Congrad's office, D. Mass., has created three documents that can be used/modified/whatever for clients whose reduced crack guidelines make them eligible for immmediate/imminent release, meaning there is nothing to litigate. Immediate/imminent means on or before March 3, 2008, because that's the day retroactivity is efffective. Miriam says she does not pretend these are perfect, but they're a starting point.
SRC is preparing a memo addressing the new 1B1.10 and how to litigate a right to a re-sentencing and other matters relevant in cases that are not due for immediate release.

PDF documents:
Motion to reduceLetter to JudgeOrder reducing sentence.

Most Guidelines Are of Lesser Status
Attachment 12/2007
Attached is initial memo on resentencing. It is intended as a starting point and was written in October. We will be updating it in the coming days but wanted to give everyone a starting point in the meantime.

FAMM is coordinating with BOP to get accurate info on each other's wesites. www.famm.org      www.bop.gov
Positive Commission Vote on Crack Retroactivity
Attachment 12/2007
Highlights of Gall and Kimbrough - key quotes
Attachment 12/2007
Attached please find Oregon Chief Deputy FPD Steve Sady's excellent Fourth Amendment outline for 2007. This is easily the best Fourth Amendment resource available for Ninth Circuit practice, and Steve is famous for gleaning the little nuggets out of decisions that often get overlooked in the Westlaw summaries or the case summary blurbs. 11/2007
Advisory Committee on Evidence Rules. Memo 11/2007
The seach and seizure outline has been updated. Here's the link.
http://circuit9.blogspot.com/2007/11/search-and-seizure-update.html
Crack Hearing Testimony.  For Lisa Freeland and Steve Sady on our behalf, and also the Crim Law Com of the Jud Conference.  11/2007
The Seventh Circuit's opinion in United States v. Miranda, 2007 U.S. App. LEXIS 25137 (7th Cir. Oct. 26, 2007), is really quite extraordinary.

First of all, it's a reversal of a "within-guidelines sentence," id. at *17, by a circuit that accords the guideline range a presumption of reasonableness. Although the court doesn't list the guideline calculations, from what I can tell the offense level was 24 (20 for the bank +2 for financial institution +2 for a note with a threat of death), so the final offense level was 21 after subtracting 3 levels for acceptance. The court says that the client was in CHC III, id. at *27, so that means his range was 46-57 months. According to the Seventh Circuit, the government was asking for 46 months. Id. at *13. The judge imposed 50 months, a sentence below the middle of the guideline range. Id.

Second, the opinion demonstrates that the Seventh Circuit's standard for what constitutes "meaningful consideration" of the 3553(a) factors is far higher than the standard the Supreme Court set in Rita. The court says, among other things, that when the defense raises "non-frivolous" 3553(a) arguments, arguments that are not "clearly without merit" or "so weak as not to merit discussion," id. at *17-18, the district court: (1) may not just mention the defendant's argument or the facts supporting the argument, but must "specifically address" the "arguments based on [the] 3553(a) factors," id. at *20; (2) must make an "individualized analysis of [the defendant's] factually and legally supported sentencing arguments under section 3553(a)," id. at *31-32; (3) must consider each and every 3553(a) ground the defense raises, id. at *23-24 (remanding for resentencing because "Miranda advanced all of these arguments, . . . and the district court did not address them."); and (4) cannot rest on "factors that are already built into the heartland of the guidelines," including the fact that a within-guideline sentence will incapacitate someone from committing another crime and will deter others from robbing banks, but must instead "focus on the section 3553(a) factors as they apply to [the defendant] in particular," id. at *31.

The court also says that if the defense raises a ground that justifies a downward departure under the Guidelines, such as diminished capacity/mental illness, and that ground is "supported by a factual basis," the district court must "comment" meaningfully on that argument. Id. at *19-20. Similarly, when a judge is faced with an overstatement of criminal history argument, he must "state whether [the defendant's] criminal history category accurately reflect[s] his culpability or likelihood of recidivism." Id. at *28.

And finally, the Seventh Circuit gives us great arguments for using 3553(a) to request below-guideline sentences for clients with diagnosed mental illnesses, assuming we hire a doctor who makes certain relevant factual findings about the client. The court found that under 3553(a)(2)(B), "mental illness . . . might make it more difficult for a person to comply with the law, and so a heavy sentence would not have a significant deterrent effect on persons in the defendant's class. . . . On the other hand, a heavy sentence would not have a general deterrent effect on persons who are not mentally ill." Id. at *21-22. The court held that under 3553(a)(2)(C), "[t]he court may decide that [the defendant], after being treated for mental illness, is not inclined to commit crimes and so does not require the added encouragement of a lengthy sentence." Id. at 22. With regard to 3553(a)(2)(A), the court held: "If the mental illness is treatable, . . . the goal of incapacitation may not be advanced by a heavy sentence. Instead, mental health treatment would 'incapacitate' [the defendant] from committing further crimes." Id. at *22. Even if the defendant was under treatment at the time of the crime, the defense can argue that the defendant "was not correctly diagnosed or appropriately treated until" after the commission of the crime. Id. at *23. The court held that under the just punishment prong of 3553(a)(2)(A), "a person who would not have committed a crime but for his mental illness would be less deserving of punishment because he is 'not as evil . . . as one who would not be law abiding even if he were not mentally impaired.'" Id. at *23 (quoting United States v. Dyer, 216 F.3d 568, 571 (7th Cir. 2000)). 11/2007

This memo was sent out by Miriam Conrad, the FPD of the D. Mass, which is a DOJ article on the definintional mess of what is or is not a felony. 10/2007
Attached is (1) a memo on some things to use from the Gall/Kimbrough oral arguments, and (2) a memo on the Commission "training" in Boston, which includes useful information on Commission propaganda and some hints that were dropped about whether the crack and criminal history amendments will be made retroactive.  10/2007
19,500 people to benefit from crack cocaine guideline amendment if made retroactive.  Attachment 10/2007
Good Rita pleadings. 9/2007
Rehearing Petition
Ritasupp2 briefing shereen
Rita related objections shereen
Joel Parris wrote a guest column for Therapeutic Justice which incorporates a great idea to avoid revocation -- http://www.law.arizona.edu/depts/upr-intj/.
Kimbrough Amici Brief.  Attached is a copy of the as-filed brief of The Sentencing Project and The Center for the Study of Race and Law at the University of Virginia School of Law.  7/2007
Kimbrough Merits Brief. Attached is a .pdf file containing the manuscript version of the Brief for the Petitioner in Kimbrough v. United States, No. 06-6330.  7/2007
Attached is Washington Legal Foundation's Brief in Gall v. US. The brief is essentially the same as our brief in Rita/Claiborne and stresses the flaws of the Guidelines and its faulty empirical approach, as well as the issue about parole in the pre-Guideline era which was usually granted after serving 1/3 of sentence. Hence, Gall's Guideline sentence of 30-37 months is equivalent to a harsh pre-Guideline sentence of 90-111 months ( 7 1/2 - 9 years).  7/2007
FINAL NYCDL Gall Amicus Brief
A final copy of NYCDL's amicus brief in Gall is attached.  7/2007
Gall v. United States -- FAMM's Amicus Brief.
Attached is FAMM's amicus brief in Gall. The brief was filed earlier today. 7/26/2007
Gall v. United States & Kimbrough v. United States-- NACDL's amicus brief
Attached is the filed version of NACDL's amicus brief in both Gall and Kimbrough. 7/2007
The Defender Amicus brief in Gall.
Defender Amicus Brief in Gall v. US 7/2007
Rita -- brief summary w/ links to commentary
Thanks to Henry Bemporad, Jason Hawkins, and Jennifer Coffin, for identifying the following problems in the new crack amendment which others may have noticed by now, and some solutions.
Memo on crack guidelines 6/8/2007
Attached are letters, which oppose gang legislation pending in the House and Senate.
HR 1582 Conyers_Smith.pdf and S 456 Leahy_Specter.pdf
More on USSG amendments 4/25/07
JAMES v. UNITED STATES (No. 05-9264)

Web-accessible at:
http://www.law.cornell.edu/supct/html/05-9264.ZS.html

Argued: November 7, 2006 -- Decided: April 18, 2007
Opinion author: Alito

Attached are the follow-up comments from the Federal Public and Community Defenders regarding issues that arose at the March 20th hearing.

Jon

Attached are the Federal Public and Community Defenders comments regarding reduction of prison terms (USSG § 1B1.13). Special thanks to AFPD Steve Jacobson (Oregon) who was our recent "representative" on the Commission's legal staff.
Comments 3/07
Here are the FPD comments on the Misc. Amendments. These include Demonstrations at Nat'l Cemeteries and Internet Gambling.
Comments 3/07
Here is a blog with Sady & Co's latest materials on bop issues, which both cja and fpd attys might find it useful.
http://circuit9.blogspot.com/2007/01/bop-update-kick-over-incarceration.html
Victim memo to Defenders by: Amy Baron-Evans 1/26/2007
November 2006 for The Defense Newsletter
What SG is now filing in opposition to cert petitions. Opp to cert-Farris 11/2006
Here is the en banc brief filed on behalf of Carty/Zavala addressing sentencing post-Booker in the 9th. 9/2006
THE CONTINUING STRUGGLE FOR JUST, EFFECTIVE AND CONSTITUTIONAL SENTENCING AFTER UNITED STATES v. BOOKER
Amy Baron-Evans
August 2006
Attached is our letter for inclusion in the Commissioners' binders. 7.19.06
Attached is a memo entitled "ANTIDOTE TO THE KOOL-AID:  GIVING THE GUIDELINES SUBSTANTIAL OR PRESUMPTIVE WEIGHT IS CONSTITUTIONALLY, TEXTUALLY AND FACTUALLY UNSOUND," and a blog by Steve Sady on a new case from the 9th holding that a rebuttable presumption in the district court is error, which strongly indicates that a presumption of reasonableness on appeal must be error too.

Though your circuit may have already held that substantial weight is fine in the district court (1st) and/or a presumption of reasonableness is required on appeal (4th, 5th, 6th (sort of), 7th, 8th, 10th), it seems likely that the Supreme Court is going to shed light on this question in Cunningham, so preserve the argument, file petitions for rehearing, file petitions for cert. Antidote to the kool-aid ,
zavala - trial court's treatment of guidelines as presumptive reversed

4.19.06

Federal Defender Comments on the Proposed Firearms Amendments.
Letter 3-13-2006
Federal Public and Community Defenders opposition to the Children's Safety and Violent Crime Reduction Act of 2005. Letter 3-7-2006.
Comment on Proposed Emergency Amendments to Anabolic Steroids Guidelines 2-28-2006
Booker Update. CJA Appellate Practice Memorandum. 2-2006
FindLaw article US v. Bear 2-2006
Steve Sady's latest submission to the 9th Circuit Blog in its entirety. It is a must-read for anyone who has had to listen to the government and/or the court go on (and on and on) about the reasonableness of the guidelines and the deference they should be afforded. 2/2006
The AO has recently been notified of an October 1999 Bureau of Prisons policy change concerning the award of prior custody credits to juveniles adjudicated delinquent.
Change in Bureau of Prisons Policy Concerning Juveniles 1/3/2005
Case Summary Publication. Errores Juris 2005
By: Alex Bunin
FPD Northern New York & Vermont
Tear It Asunder: DOJ's Position on the 9th Cir Split 11/2005
108 Easy Mitigating Factors Latest update Mike Levine 11/2005
Cell Site Opinion 10/2005
Attached is a cleaner version of the split the circuit bill, which is now
available from Thomas (http://thomas.loc.gov/), the Library of Congress
website. S.1845 10/2005
Defender Testimony - USSC Hearing 4-12-2005
Killer Instincts
By Jeffery Toobin
The New Yorker
January 17, 2005
The Defense Challenge to Fingerprints
By Lisa J. Steele

 

 
 

 

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