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Good News for Prisoners Seeking Compassionate Release
If the Government Shutdown and the Threat of Debt Default Ends, There Exists Room for Bipartisan Agreement on Mandatory Minimums in Federal Sentencing.
Attorney General Releases Second Memorandum to Federal Prosecutors with Respect to Mandatory Minimums for Low-Level Drug Offenders
More Help on the Way for Defendants at Sentencing
The Holder Memorandum of August 12
Supreme Court Cases Significantly Increase Defense Attorney's Obligations
Good News: Fast-Track Programs Now Available in All Federal District Courts
Warning: Time Off for RDAP (Residential Drug Abuse Program)
B.O.P. : HALFWAY HOUSE BEDS ARE SCARCE
September 20. 2013
In a speech to the American Bar Association on August 12, 2013 Attorney General Eric Holder stated that significant changes were coming with respect to the Compassionate Release Program of the Bureau of Prisons:
[T]he Department has now updated its framework for considering compassionate release for inmates facing extraordinary or compelling circumstances – and who pose no threat to the public. In late April, the Bureau of Prisons expanded the criteria which will be considered for inmates seeking compassionate release for medical reasons. Today, I can announce additional expansions to our policy – including revised criteria for elderly inmates who did not commit violent crimes and who have served significant portions of their sentences. Of course, as our primary responsibility, we must ensure that the American public is protected from anyone who may pose a danger to the community. But considering the applications of nonviolent offenders – through a careful review process that ultimately allows judges to consider whether release is warranted – is the fair thing to do. And it is the smart thing to do as well, because it will enable us to use our limited resources to house those who pose the greatest threat.
That very day, the BOP released a program statement, Number 5050.49, titled Compassionate Release/Reduction in Sentence: Procedures for Implementation of 18 U.S.C. §§ 3582(c)(1)(A) and 4205(g). The program statement makes clear that Holder meant what he said. It is a stunning turnaround in BOP policy.
The Bureau of Prisons has always had a program that called for compassionate release of some elderly ill inmates. However, the program was basically a sham. Virtually no inmates were ever released. Because of the extraordinarily restrictive (and incompetent) administration of the program, it came to be called "the death rattle rule;" that is, the only inmates approved for release were so ill, that by the time they were approved, they were dead. The Justice Department became increasingly aware of criticisms of the program and conducted a detailed review of it, published in April 2013. The conclusions of the review are the following:
The BOP does not properly manage the compassionate release program, resulting in inmates who may be eligible candidates for release not being considered. Problems with the program’s management are concentrated in four areas.
First, the BOP has failed to provide adequate guidance to staff regarding the medical and nonmedical criteria for compassionate release consideration.
Second, the BOP has no timeliness standards for reviewing compassionate release requests, and timeliness standards for inmate appeals do not consider the special circumstances of medical compassionate release requests.
Third, the BOP does not have formal procedures to inform inmates about the compassionate release program.
Fourth, the BOP does not have a system to track compassionate release requests, the timeliness of the review process, or whether decisions made by institution and Regional Office staff are consistent with each other or with BOP policy.
As a result of these multiple failures, we concluded that the implementation of the program is inconsistent and results in ad hoc decision making by the BOP in response to inmate requests. We further found that approximately 13 percent (28 of 208) of the inmates whose release requests had been approved by a Warden and Regional Director died before their requests were decided by the BOP Director. We also found that the compassionate release program could both provide cost savings to the BOP and help it in managing the growing federal prison population. In considering the impact of the program on public safety, we found that a small percentage of inmates were rearrested within 3 years of their release under the compassionate release program.
The BOP has not established adequate medical or non-medical guidance for compassionate release consideration.
The new program statement by the BOP makes clear that now there will be real, substantive early release for many inmates. The reforms to the compassionate release program encompass major improvements in four areas.
The first change addresses medical reasons for early release. The new policies allow dying prisoners to seek compassionate release within 18 months of their anticipated death, rather than the previous term of 12 months. They also clarify that a prisoner need not, as before, be completely disabled to be eligible, as long as they have a seriously debilitating medical condition due to illness or injury from which they will never recover.
A second set of changes concerns the release of a prisoner after the death or incapacitation of a caregiver looking after a member of the prisoner’s family. Up to now, the BOP has theoretically permitted requests for release on this ground, but in practice has never granted a single one. The new policies lay out specific criteria and procedures in these situations, which will lead to early release decisions in such cases.
A third change concerns non-medical circumstances in which the spouse or registered partner of an inmate has become incapacitated.
A fourth change – and this is stunning and wholly unexpected – is the decision to permit elderly prisoners who are not necessarily dying or seriously incapacitated to seek early release. Prisoners 65 and older can now apply for early release if they have served 50 percent or more of their sentences, have chronic or serious medical conditions connected to aging, and experience deteriorating mental or physical capabilities that diminish their ability to function in a correctional facility. Even without such medical conditions, a prisoner 65 or older who has served 10 years or 75 percent of his sentence, whichever is greater, can also apply for early release.
You can read the new program statement in its entirety here. It is somewhat complicated (as many program statements by the BOP are) but it basically boils down to a procedure where the prison inmate makes his case to his Warden based on one or more of the four criteria above. His case would then go through multiple levels of review within the BOP and Justice Department. If the inmate is approved, the BOP would contact the U.S. Attorney in the district where he was sentenced and petition the sentencing court, on behalf of the BOP, to reduce the inmate’s sentence to time served. Finally, upon receipt of notice that the sentencing court has entered an order granting the motion, the Warden shall release the inmate forthwith.
The new policy is a huge improvement and adds real compassion to "compassionate" release. If you have a family member who qualifies, you should immediately begin pursuing his or her early release. If the inmate is still functioning at a decent level mentally, he can make his case to the Warden accordingly. If the inmate is so ill or debilitated mentally that this is not possible, you should lay out the case for early release to his counselor or case manager. Telephone the counselor first, then use email or postal mail. Because the entire emphasis of the Justice Department is changing to help inmates and defendants, the case manager or counselor should be amenable to helping the inmate. However, if there is resistance, I recommend that you hire an attorney to make the case with more weight behind it.
The main point is that you can help your loved one, who is no longer going to be categorically stonewalled by the BOP. This is good news, so take advantage of it!
If the Government Shutdown and the Threat of Debt Default Ends, There Exists Room for Bipartisan Agreement on Mandatory Minimums in Federal Sentencing.
September 17, 2013
It is very rare today that the nation's two political parties agree on anything. On almost every issue they are miles apart and fiercely critical of each other. The shutdown of the government and the latest debt crisis has only increased the mutual vitriol in Washington. However, if the present-time crisis can end, there is one area where a surprising amount of bipartisanship exists: reforming federal sentencing with respect to mandatory minimums.
In previous posts I have discussed two important Memorandums by Attorney General Eric Holder (here and here), where he calls for federal prosecutors to no longer charge certain drug offenders with mandatory minimum sentences. I have also discussed an important piece of legislation, the "Justice Safety Valve Act of 2013 (here)," introduced by Democratic Senator Patrick Leahy and Republican Senator Rand Paul, which would do away with mandatory minimums for all federal crimes. Actually, to be precise, the bill allows the minimums to stay in play, but they would no longer be mandatory; rather, they would be just one of many factors for a judge to consider at sentencing.
In this post I want to discuss the other piece of legislation making its way through Congress: "The Smarter Sentencing Act of 2013," introduced by Assistant Majority Leader Dick Durbin (D-IL) and Senator Mike Lee (R-UT). This bill may have the best chance of becoming law because it does not do away completely with mandatory minimums (a position that is probably too radical to pass Congress); rather, it makes significant reductions in the length of mandatory minimums in all drug cases. About half of all federal inmates are doing time for drug offenses, and many of them have been sentenced to mandatory minimums. If signed into law, this bill would reduce mandatory minimum sentences for drug offenses from 5, 10 and 20 years to 2, 5, and 10 years respectively.
The bill also instructs the United States Sentencing Commission to reform the sentencing guidelines to reflect these changes to the mandatory minimums. To better understand the reasoning behind this bill, we need to understand why there are mandatory minimums in drug cases to begin with. Mandatory minimums were originally intended to punish major offenders with significantly longer sentences than those imposed on low-level offenders. In other words, for offenders with significant ties to major drug organizations, mandatory minimums ensured severe sentences below which judges could not go. However, the law determined mandatory minimums by one criterion only: the type and weight of the drug involved. Over time, it became increasingly clear that this criterion was a poor choice. In many cases, low-level offenders were swept in simply because of the weight of the drug they were apprehended with. For example, a low-level "mule" or delivery person, who was clearly not a leader or organizer of a drug organization, would receive the mandatory minimum because he was apprehended with a weight of drug that triggered the minimum.
The two Memorandums by Attorney General Holder recognize this problem and instruct federal prosecutors to use their discretion in tailoring charges so that only defendants who are major players will he be subjected to mandatory minimums. In effect, prosecutors will now be charging defendants in accordance with Congress’s intent when mandatory minimums for drug cases were first established. The decision of the Attorney General has been widely praised and there has been virtually no opposition to it. I am aware of only one commentator, Charles Krauthammer of Fox News, who reacted negatively to the decision, and his commentary was so obviously at odds with the facts and evidenced so little understanding of the Attorney General’s objective that he has been criticized by other commentators.
The decision by Holder does not have the force of law. Another Attorney General, in another Administration with a less enlightened understanding of mandatory minimums, could return things to the way were previously. Indeed, the only real opposition to the Memorandums has come from a member of the previous Justice Department under President George W. Bush. Thus, the way to ensure permanent change is through enactment of a new law.
The Smarter Sentencing Act of 2013 has a good chance of becoming that law because it also closely tracks the recommendations of the United States Sentencing Commission. The Sentencing Commission establishes the sentencing guidelines that are submitted to Congress for approval on November first of each year. In the twenty-five year history of the guidelines, the Commission's recommendations have invariably been approved by Congress (though in a few rare cases only after submission of the same recommendation several times in different years). The recommendations of the Sentencing Commission command a great deal of respect from Congress. The Commission also periodically submits to Congress reports and recommendations that deal with other issues besides the guidelines.
On September 18, 2013 the Sentencing Commission submitted a report to the Committee on the Judiciary of the United States Senate for a hearing on “Reevaluating the Effectiveness of Federal Mandatory Minimum Sentences.” This report is a thorough and devastating indictment of mandatory minimums as they presently exist. You can read the report in its entirety here. The Commission's recommendations to fix the situation are as follows:
[T]he Commission unanimously recommends that Congress consider a number of statutory changes. The Commission recommends that Congress reduce the current statutory mandatory minimum penalties for drug trafficking. We recommend that the provisions of the Fair Sentencing Act of 2010, which Congress passed to reduce the disparity in treatment of crack and powder cocaine, be made retroactive. We further recommend that Congress consider expanding the so-called “safety valve,” allowing sentences below mandatory minimum penalties for non-violent low-level drug offenders, to offenders with slightly greater criminal histories than currently permitted. Finally, the Commission recommends that the safety valve provision, and potentially other measures providing relief from current mandatory minimum penalties, be applied more broadly to extend beyond drug offenders to other low-level non-violent offenders in appropriate cases.
The Smarter Sentencing Act of 2013 does three of the four things the Commission's report recommends: 1) It reduces the current statutory mandatory minimum penalties for drug trafficking (as I have discussed above); 2) It expands the Safety Valve, which allows sentences below mandatory minimum penalties for non-violent low-level drug offenders with criminal histories of two points or less (at present, the Safety Valve is limited to offenders with a criminal history of one point or less); and 3) It makes the provisions of the Fair Sentencing Act of 2010 fully retroactive. The only recommendation by the Commission not incorporated into the Smarter Sentencing Act is that the Safety Valve and potentially other measures providing relief from current mandatory minimum penalties are not to extend beyond drug offenders to other low-level non-violent offenders.
An important provision of the Guidelines, the Safety Valve has had a positive impact for some drug offenders by allowing sentences below the mandatory minimums. The Safety Valve is thoroughly discussed in Busted By The Feds. Now, if this new bill becomes law, the Safety Valve will be expanded to help more offenders. The Fair Sentencing Act of 2010 was a very important change for defendants in crack cocaine cases. It ended the disparity between far more severe penalties for crack defendants when compared with defendants charged with equal weights of powder cocaine. The Act is already retroactive with respect to the sentencing guidelines. That is, if the sentencing guidelines for a defendant already serving time would have been less if the Act had been in existence at the time he was sentenced, then he can apply for a reduction in his sentence accordingly. However, the Act is only retroactive with respect to the guidelines; it is not retroactive with respect to the mandatory minimums created by the Act. Thus, an inmate who was sentenced to a mandatory minimum is "stuck" with no way to get relief. The Smarter Sentencing Act of 2013 will follow the Commission's recommendations and make the Act fully retroactive, including the mandatory minimums.
Because the sentencing guidelines (for any crime) are a set of levels that combine the possible criminal history of a defendant, as well as the possible specifics of the crime (e.g., the weight of the drug, the role of the defendant, and other aggravating or mitigating factors), and because these levels span the spectrum of possible punishment determined by the mandatory minimum and maximum for the crime, the Smarter Sentencing Act instructs the Sentencing Commission to adjust the guidelines accordingly to reflect the new mandatory minimums. This will mean a general reduction in the severity of sentence for all drug offenders.
The Smarter Sentencing Act is supported by faith leaders from the National Association of Evangelicals to the United Methodist Church. It is also supported by groups and individuals including Heritage Action, Justice Fellowship of Prison Fellowship Ministries, the ACLU, Grover Norquist, the National Organization of Black Law Enforcement Executives, the Leadership Conference on Civil and Human Rights, the NAACP, the Sentencing Project, Open Society Policy Center, the American Bar Association, NAACP Legal Defense and Educational Fund, the National Association of Criminal Defense Lawyers, Families Against Mandatory Minimums, the Constitution Project, Drug Policy Alliance, Brennan Center for Justice, and Lawyers’ Committee for Civil Rights Under Law. These individuals and groups span an impressive spectrum of what are normally antagonistic points of view. That they have found common ground with respect to the Smarter Sentencing Act bodes well for it becoming law. Let us hope that Congress can end its present dysfunction (which is sucking the oxygen out of normal legislative responsibilities) and focus its attention on those areas where there exist bipartisan opportunities for reform, such as the passage of the Smarter Sentencing Act of 2013.
Final Note: In three previous posts I have discussed at length some of the changes that are happening with respect to drug offenders with prior drug convictions. Recently, a remarkable opinion was released by United States District Judge John Gleeson in a case involving a defendant who was faced with the possible penalties resulting from prior convictions, and who chose to plead guilty and not go to trial so as to avoid those penalties. The opinion is lengthy and lays out in great detail the history of how prior drug convictions have been handled by the law and the Justice Department for the last fifty years. If you are a defendant who is presently facing the possibility of penalties from prior drug convictions, I recommend you read this decision in its entirety. Though it is lengthy and detailed, it is also well written and easily understandable.
Gleeson discusses an area of the law where there is probably no possibility of change by Congress. The change that is happening has been at the direction of the Attorney General. Judge Gleeson is supportive of the Attorney General's efforts, but he makes powerful arguments that the Attorney General should go even further. Because his decision is published, it has considerable legal force; it has received widespread notice on different legal blogs. Understand what he is saying (and have your attorney understand it also); it could help you present an argument to your judge that could help you at sentencing. You can read Judge Gleeson's opinion here.
Attorney General Releases Second Memorandum to Federal Prosecutors with Respect to Mandatory Minimums for Low-Level Drug Offenders.
Take Advantage of it Now
September 22, 2013
Real change is taking place with respect to mandatory minimums in federal sentencing. On August 12, 2013 Attorney General Eric Holder issued a Memorandum to federal prosecutors instructing them to no longer seek mandatory minimum sentences for certain low-level drug offenders, as well as to no longer file a notification of prior felony convictions for such offenders. That Memorandum and how it affects defendants is explained here. Holder has now followed up the Memorandum with a second Memorandum that offers relief for similar defendants who had already been charged before the first Memorandum went into effect.
The second Memorandum, issued on August 29, 2013, addresses three classes of defendants:
- 1. Defendants charged and awaiting adjudication of guilt.
- 2. Defendants whose guilt has been adjudicated and whose sentence has not yet been imposed.
- 3 Defendants whose sentence has been imposed.
Let's look at each of these cases:
Defendants charged and awaiting adjudication of guilt. In this case, the second Memorandum reads:
In the case of a defendant who was charged before the policy issuance, but who has not pleaded guilty or been convicted, prosecutors should apply the new policy and pursue an appropriate disposition consistent with the policy's section, "Timing and Plea Agreements." Application of the policy may also require a motion to withdraw and information previously filed under 21 U.S.C. § 851.
In applying the policy, prosecutors should consider all of the facts and circumstances of the case. In particular, in determining whether defendant has a significant criminal history, prosecutors should evaluate the facts beyond the number of criminal history points. While a significant criminal history is normally evidenced by three or more criminal history points, that is not a mechanical test. A criminal history involving three or more points may not be significant for purposes of the policy if, for example, a conviction is remote in time, aberrational, or for conduct that itself represents non-violent, low-level drug activity.
As you can see from the above, the instructions reference a section in the first Memorandum, "Timing and Plea Agreements." That section offers a prosecutor several ways to retroactively grant the defendant relief from the mandatory minimum: he can ask the grand jury to supersede the indictment with charges that do not trigger the mandatory minimum; he can allow the defendant to plead guilty to a lesser included offense; or he can allow the defendant to waive the indictment and plead guilty to a superseding information that does not charge the drug weight necessary to trigger the mandatory minimum.
The prosecutor's options basically boil down to the same thing: a way to remove the weight of the drug from the offense of conviction. The weight of the drug is what triggers the mandatory minimum, and if that weight is not included in the charging instrument, or in the plea agreement, the defendant is not subject to the mandatory minimum even if he is found guilty at trial or pleads guilty. If you are a low-level drug offender who was charged before August 12, 2013, your lawyer should make sure that the prosecutor uses one of these options.
The second Memorandum also states: "Application of the policy may also require a motion to withdraw an information previously filed under 21 U.S.C. § 851." An information filed under 21 U.S.C. § 851 is commonly called "a notice of prior felony conviction." A notice of prior felony conviction comes into play when the defendant has prior drug convictions. If the prosecutor files the notice, then there is a corresponding big increase in the statutory range for the offense (an increase in both the mandatory minimum and maximum). The original Memorandum emphasized that prosecutors should no longer aggressively file such notices for low-level offenders, but instead reserve filing for major offenders. Now the second Memorandum instructs prosecutors how to retroactively apply the original instructions. Again, if you are low-level offender with prior drug convictions, your attorney should ensure that the prosecutor follows the second Memorandum and removes the notice of prior felony conviction.
It is important to note the emphasis the second Memorandum places on criminal history. The Attorney General is making clear that the new policy of the Justice Department is to benefit as many defendants as possible. The policy is not to be obstructed by a criminal history that technically would preclude it when in fact the criminal history is not severe. If you are a defendant with a criminal history of three points or more, you should very carefully go over that history and determine if any of your priors are of the type that the Memorandum indicates are not significant with respect to the new policy. This can make a big difference in your eligibility for the policy.
Defendants whose guilt has been adjudicated and whose sentence has not yet been imposed. In this case, the second Memorandum reads:
In cases in which the defendant would not have been charged with the mandatory minimum under the new policy but previously entered a guilty plea and admitted to facts triggering a mandatory minimum, prosecutors are encouraged to seek relief from the mandatory minimum sentence. In determining whether relief is warranted, prosecutors should consider all pertinent facts, including the criteria mentioned in the Attorney General's [original] memorandum, the need to equitably treat co-defendants charged in the same case, and any other pertinent circumstances regarding the offender and the prosecution.
In many cases, relief from the plea is unnecessary because the defendant qualifies for relief from the mandatory minimum through the Safety Valve, 18 U.S.C. § 3553 (f). It may also be unnecessary if the government files a motion under 18 U.S.C. § 3553 (e) to depart from the mandatory minimum based on cooperation. In other cases, prosecutors can seek relief from the prior guilty plea by negotiating a plea agreement in which the defendant agrees to plead guilty to a superseding information charging the drug offense without the pertinent quantity, and the government agrees to move to dismiss the original indictment under Federal Rules of Criminal Procedure 48(a).
Alternatively, if permitted by the court, prosecutors may move to dismiss the charged allegation of the enhancement fact [the weight of the drug]. Such a motion is functionally equivalent to dismissing a greater offense, leaving the conviction for a lesser-included offense intact. See Alleyne v. United States, 133 S. Ct., 2151, 2162 (2013) (describing the allegation of an enhancement fact as that of a greater offense: "When a finding of fact legally alters the prescribed punishment so as to aggravate it, the fact necessarily forms a constituent part of a new offense and must be submitted to the jury.")
With respect to defendants who previously pled guilty following the filing of an information under 21 U.S.C. § 851, and have not been sentenced, prosecutors are also encouraged to consider the guidelines stated in the Attorney General's [original] memorandum and, where appropriate, move to withdraw a Section 851 information before sentencing.
Defendants Convicted at Trial. As a general matter, prosecutors should not seek relief for a defendant who was previously convicted at trial where the jury found a drug quantity that requires a mandatory minimum sentence (beyond any relief that a defendant is entitled to under application of the Safety Valve or based on cooperation with the government). Nevertheless, prosecutors have discretion to seek relief in an unusual case upon determining that the interests of justice so require. Such unusual circumstances may arise, for example, where the defendant persuasively explains that he proceeded to trial only to contest the mandatory minimum provision that would not be charged under the new policy, or action is required to assure consistent treatment of co-defendants in the same case for closely related cases.
If a decision is made to seek relief, the government may proceed in accordance with the Rule 48 (a) procedure stated earlier, that is, by moving to dismiss the count of conviction and replacing it with a plea to a superseding information or by simply moving with the court's permission to strike the conviction for the greater included offense and retain the conviction for the drug offense without the mandatory minimum.
Separately, with respect to defendants who were convicted at trial following the filing of an information under 21 U.S.C. § 851, and have not been sentenced, prosecutors are encouraged to consider the guidelines stated in the Attorney General's [original] memorandum and, where appropriate, move to withdraw an 851 information before sentencing.
The above deals with two classes of defendants: 1) those who pled guilty, and 2) those who were found guilty at trial.
1) For those defendants who pled guilty the Memorandum clearly states that the prosecutor should seek relief for the defendant and remove the weight of the drug from the plea agreement. The Memorandum mentions that the defendant may already be entitled to relief because of the Safety Valve or because he cooperated with the government. The Safety Valve and Cooperation are discussed extensively in Busted By The Feds. They deal with a limited number of defendants, and if you are one of them, your attorney will have already informed you that the Justice Department’s new policy need not concern you. The policy is for certain defendants who do not already have relief from the mandatory minimum and who meet the criteria in the Attorney General's original Memorandum.
The new Memorandum offers two ways for the policy to be retroactively applied: 1) prosecutors can negotiate a [new] plea agreement in which the defendant agrees to plead guilty to a superseding information charging the drug offense without the weight of the drug, and the government moves to dismiss the original indictment under Federal Rules of Criminal Procedure 48(a); or 2) if permitted by the court, prosecutors may move to dismiss the charged allegation of the enhancement fact [the weight of the drug]. Both of these options are straightforward and your attorney should make sure that the prosecutor uses one of them if you are a defendant who is eligible for the policy.
2) For those defendants who were found guilty at trial, the course of action depends on whether the drug quantity was put before the jury (that is, included in the indictment for the offense). If it was not, then even if the defendant was found guilty, he is protected from the mandatory minimum. If the weight was put before the jury but the jury did not find the defendant guilty of that weight (even though they found him guilty of a drug offense), again, the defendant is protected from the mandatory minimum. It is only for defendants who went to trial and the jury did find guilt on the weight of the drug (and the weight triggers the mandatory minimum), that this second Memorandum instructs prosecutors not to grant the defendant relief.
The Memorandum mentions a narrow exception to this rule: "Prosecutors have discretion to seek relief in an unusual case upon determining that the interests of justice so require." The Memorandum lists two possible examples of such an unusual case. The first is very rare and would involve a defendant who went to trial solely to contest the weight of the drug and not his guilt on the underlying drug crime. This would occur, for example, if you were a defendant who presented no defense at trial to the drug offense other than evidence contesting the weight of the drug. In other words, you were basically trying to do exactly what the new policy of the Justice Department now does: get a sentence that avoided the mandatory minimum. If you can convince the prosecutor that that was your intention at trial, then the prosecutor is instructed to grant you relief. The second example has to do with disparity at sentencing. If you are equally culpable with your co-defendants, but they have managed (for whatever reason) to avoid the mandatory minimum and you have not, then the prosecutor can grant you relief to cure the sentencing disparity.
What is interesting is that the need to avoid unwarranted sentence disparities is one of seven factors that appear in the Sentencing Reform Act of 1984, which is the backbone of all federal sentencing. The other six factors are also important and "serve the interests of justice." Those factors are delineated here (factors in Title 18 U.S.C.A. §3553(a) of the U.S. Code). If you are a defendant who is ineligible for the policy because of a finding of guilt by a jury, you should carefully review those factors and see if any of them apply to the facts of your case and would benefit you because they call for relief from the mandatory minimum in order to serve the interests of justice.
Finally, for both classes of defendants in this section (those who pled guilty or those who were found guilty at trial), if the defendant is a low-level drug offender with prior drug convictions (and/or whose prior convictions were themselves low-level offenses), the prosecutor is instructed to withdraw the notice of prior felony conviction.
3) Defendants whose sentence has been imposed.
In this case, the Second Memorandum reads:
Prosecutors should not disturb the sentence in a case in which the sentence has already been imposed, whether or not the case is on direct appeal or in some other stage of post-conviction litigation.
If you are a defendant who has already been sentenced and your sentence involved the mandatory minimum, irrespective of the fact that the new policy of the Justice Department would have granted you relief if it had been in effect at the time of sentencing, you are not entitled to retroactive relief.
Final Note: The new policy of the Justice Department affects only certain low-level drug offenders, whether it is applied retroactively or not. However, as explained in the previous post, More Help on the Way for Defendants at Sentencing, there is an important bill making its way through Congress that is much more expansive and covers all defendants and the mandatory minimum. You should read the previous post because even if you are precluded from the Justice Department policy, you may be able to take advantage of that bill even before it becomes law.
Okay, nuff said for now and
More Help on the Way for Defendants at Sentencing
It is Good News and Defendants Should Take Advantage of itNow
September 5, 2013
One of the reasons Busted By The Feds is the best book ever written for a federal defendant is that it is written so that you can understand the law in practical terms. Every chapter, every paragraph, is designed to lead you step by step through the many different situations you can encounter from the time you are arrested and charged with a federal crime, to the time you are sentenced and begin to serve your sentence (if you are found guilty). Even complex and difficult legal concepts are broken down in a way that allows you to understand them and be able to use them to your advantage.
The biggest change in criminal law in the last ten years is the Booker decision. In this decision the Supreme Court made the Sentencing Guidelines advisory, rather than mandatory as they had been previously. Busted devotes over thirty pages to explaining the decision and how it has been further defined by subsequent Supreme Court decisions. This chapter of Busted describes the genesis of the Sentencing Guidelines from the time they were authorized by the Sentencing Reform Act of 1984; through how they were first affirmed by the Supreme Court; to how their constitutionality began to be questioned by the Court with the decision Apprendi v. New Jersey; and finally, to how they were found unconstitutional and changed to advisory with the decisions Blakely v. Washington and United States v. Booker. Every step of the way, the legal analysis is illustrated with practical examples. The chapter ends with over forty different scenarios where a reduced sentence is possible under Booker and the advisory Guidelines.
Today the Sentencing Guidelines are just one of seven different factors that must be taken into account by the judge at sentencing. These factors are delineated in Title 18 U.S.C.A. §3553(a) of the U.S. Code:
- Factors to be considered in imposing a sentence –
- (1) the nature and circumstances of the offense and the history and characteristics of the defendant;
- (2) the need for the sentence imposed –
- (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
- (B) to afford adequate deterrence to criminal conduct;
- (C) to protect the public from further crimes of the defendant; and
- (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;
- (3) the kinds of sentences available;
- (4) the kinds of sentence and the sentencing range established for –
- (A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines –
- (i) issued by the Sentencing Commission ...; and
- (ii) that ... are in effect on the date the defendant is sentenced ....
- (5) any pertinent policy statement –
- (A) issued by the Sentencing Commission ... subject to any amendments made to such policy statement by act of Congress ...; and
- (B) that ... is in effect on the date the defendant is sentenced.
- (6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and
- (7) the need to provide restitution to any victims of the offense.
The court ... in determining the particular sentence to be imposed, shall consider –
Busted also explains how both the Guidelines as well as the other factors in Title 18 U.S.C.A. §3553(a) are outweighed by the statutory minimum for the offense for which you are being sentenced. In other words, even if a judge decides that a lower-than-guidelines sentence is appropriate in your case, he can only go so far. He is constrained by the mandatory minimum, the lowest amount of time he can give.
Recently, Attorney General Eric Holder issued a Memorandum to federal prosecutors instructing how they should allow the judge to go below the mandatory minimum for certain low-level drug offenders. That Memorandum is explained here. The action by Holder is a welcome step, long overdue, to rectify some of the harsh sentences that would otherwise be issued to some defendants. But its scope is limited.
However, there is now a bill making its way through Congress to give the possibility of relief to all defendants with respect to mandatory minimums. It is the "Justice Safety Valve Act of 2013," introduced by Democratic senator Patrick Leahy and Republican senator Rand Paul. This bill has wide bipartisan support, and there is a good chance it will become law. It reads as follows:
- (g) Authority To Impose a Sentence Below a Statutory Minimum To Prevent an Unjust Sentence.--
- (1) General rule. – Notwithstanding any provision of law other than this subsection, the court may impose a sentence below a statutory minimum if the court finds that it is necessary to do so in order to avoid violating the requirements of subsection (a).
Section 3553 of title 18, United States Code, is amended by adding at the end the following:
What this bill does is to add the above language at the end of Section 3553 of Title 18, which makes the seven factors in §3553(a) controlling. In other words, the mandatory minimum no longer trumps the §3553(a) factors and limits the sentence that can be issued. The judge can go lower if he determines that a sentence below the mandatory minimum is justified. This would be a very big change in sentencing of federal defendants.
Amazingly, you may be able to take advantage of this bill even before it becomes law. In May, a Colorado defendant facing ten years in prison for cocaine possession persuaded a federal judge to hold off on his sentencing, on the possibility that Congress would soon amend federal sentencing law and his prison term would not be quite so draconian. Weighing the likelihood that the “Safety Valve Act” proposed by bipartisan coalitions in both houses of Congress would pass soon or ever, Judge William J. Martinez concluded that “the balance of the equities and the interests of justice weigh in favor of continuing the date of defendant’s sentence hearing.”
The Judge acknowledged that the Act is still in the early stages of legislation and, given the ineptitude of the current Congress, any guess as to whether it will progress and, if so, how quickly, would be pure speculation. However, The Court noted that a co-sponsor of the Act in the Senate, Patrick Leahy, is the Chairman of the Senate Judiciary Committee, which increases the likelihood that the Act will at least be brought for a vote in that Committee. Moreover, the Act has bipartisan support in both the House and the Senate, which significantly increases its chances of passage.
Since then, odds have begun to look even better that the act can pass Congress. Unlikely interests including the American Legislative Exchange Council and the world’s largest association of correctional officers have endorsed mandatory minimum reform, and Attorney General Eric Holder brought attention to the problem in an address announcing he would use his own office’s power to limit mandatory minimum sentences.
This week, another defendant in Colorado also asked a federal judge to postpone his sentence.
If you are a defendant facing mandatory minimum sentencing, you and your attorney should seriously consider any and every possible legal means to delay for as long as possible the date of sentencing. This is especially critical because the proposed legislation is not retroactive, and if you are sentenced to a mandatory minimum it will be almost impossible to get relief later with an appeal or writ of habeas corpus.
Your attorney will have to make a motion to the Court for postponement of sentencing. Your chance of success with such a motion will depend on a number of factors. Factors weighing in your favor would be: 1) if your guidelines call for a sentence lower than the mandatory minimum; 2) if you are a first-time offender or have a criminal history point total that is low (3 points or below) 3) if you were a minimum or minor participant in the offense (especially good here is if you are a woman and helped your boyfriend with his criminal activity); 4) if the prosecutor will agree that the government does not oppose your motion (a long-shot, but possible given the new direction in sentencing coming from the Justice Department); and 5) if your judge has a history of giving below-guidelines sentences, or if he has previously expressed his frustration at having to sentence defendants to the mandatory minimum. These factors are not meant to be all inclusive; there may be others that would help you in your particular case. Regardless, what is important is that you meet with your attorney and take action now. If you do, it could save you years off your final sentence.
Okay, good luck!
The Holder Memorandum of August 12, 2013
Defendants should take advantage of this change in the Justice Department's policy towards drug offenders.
August 22, 2013
On June 17, 2013 the Supreme Court issued an important decision: Alleyne v. United States. In Alleyne the Court overturned a previous decision, Harris v. United States, which for over ten years had been criticized by almost all judges, lawyers and commentators on the law.
In Harris the Supreme Court allowed judges to find the facts that would determine whether a statutory mandatory minimum was to be imposed upon a defendant at sentencing. In practice the way a judge would find the facts was that he would make an assessment of the Presentence Investigation Report (PSI) as to the weight of the drug involved in the case. If he determined that the weight triggered the mandatory minimum, then the defendant had to be sentenced to no less than that amount of time. Both the prosecutor and the defense attorney could contest the weight in the PSI – and the judge could take their arguments into account – but the final decision as to the weight was in the judge's hands.
The Court had already decided in a case previous to Harris, Apprendi v. New Jersey, that judges could not find the facts that determine whether a mandatory maximum was to be imposed at sentencing. The Court determined that, because the facts increased the maximum punishment, they had to be proved beyond a reasonable doubt to a jury. Apprendi was one of the most important decisions in criminal law in the last fifty years, and it led to the Supreme Court finding that the federal sentencing guidelines violated the right to jury trial and could continue only in an advisory, non-binding role.
In Busted By The Feds there is a lengthy, detailed discussion of the history of the guidelines and how the Supreme Court changed them to advisory in its decision, United States v. Booker. There is also a thorough explanation of how a defendant can take advantage of the advisory guidelines and get a reduced sentence. However, because of Harris, if a judge found that the facts of the case warranted the mandatory minimum (for example, in a drug case: 5, 10, or 20 years), his discretion at sentencing was strictly curtailed, and even if he were otherwise inclined to give a lesser, non-guideline sentence, at the very least he had to sentence the defendant to the mandatory minimum. In other words, though the guidelines are advisory, the statutory minimum was mandatory and acted as a lower limit to the possible sentence a defendant could receive.
Most judges, lawyers and commentators concluded that Harris made no sense when read in comparison with Apprendi, and finally the Supreme Court agreed and overturned it in Alleyne.
Now, with the decision in Alleyne, the determination of the facts that establish the mandatory minimum has been taken out of the hands of a judge. Instead, as with the mandatory maximum, they are to be determined by a jury at trial – or determined by the defendant himself if he takes a deal and pleads guilty. In the latter case, this means that when the defendant appears before the judge and pleads guilty, he will also plead guilty to the amount of drugs agreed upon in the deal.
Recently, Attorney General Eric Holder issued a memorandum to all federal prosecutors to use the Alleyne decision and no longer seek mandatory minimums in drug cases that do not involve serious offenders. Holder pointed out that, because a mandatory minimum must now be determined by a jury, the facts (i.e., the weight of the drug involved in the case) that determine the mandatory minimum must be included in the indictment against the defendant. He has asked prosecutors to not include those facts in the indictment for low-level offenders. Thus, since those facts are not adjudicated by a jury, even if the defendant is found guilty of a drug offense, he will come before the judge at sentencing and the judge will not be constrained by the mandatory minimum. The judge can sentence the defendant to a lower sentence if he finds that such a sentence is appropriate given the facts of the case and the history and characteristics of the defendant.
Here is an example of how this new policy might work. I have taken it from a recent article by an ex-Assistant United States Attorney:
Jane Doe had a severe substance abuse problem when she was 20. In order to support that habit, she sold a few small glassines of heroin to an undercover officer, was arrested, pled guilty, and was sentenced to 6-months imprisonment. After serving her time, Jane cleaned herself up, got a job, and started a family.
But seven years later, Jane falls on hard times and her family is in dire financial situation. She reconnects with an acquaintance from the old neighborhood, who introduces Jane to a “cousin,” called Louie. Louie offers Jane the chance to earn $500 if she’ll pick up a certain individual at the airport. She is told the individual will have drugs and it is her job to deliver the person (and the drugs) to a certain location. She agrees. But Jane is pulled over by the DEA, she and the courier are arrested and the DEA recovers one kilogram of heroin from the courier’s luggage.
Jane confesses and tries to cooperate but only knows the acquaintance’s first name, and she only has a cell number for Louie. Immediately after her arrest, Jane is taken to the DEA’s offices, where she tries to record a call to Louie, but finds his cell phone number has been dropped. The courier knows even less and agrees to plead guilty first.
Under the prior DOJ policy, the scale overwhelmingly guided federal prosecutors’ decision making; that is, the drug’s weight determined the charge. And the DOJ’s overarching policy of charging the highest provable offense generally carried the day.
So, under the old policy, Jane would be charged with possession with intent to distribute one kilogram of heroin. That crime carries a minimum sentence of 10 years and a maximum sentence of life.
Once charged with an offense that carries a mandatory minimum, there are basically only two ways out from under the mandatory sentence.
The first is the “safety valve” provision in our federal penal code. In this case, however, Jane wouldn’t qualify because she has too many “criminal history points” from her one prior drug case. The other way out from under is cooperating, providing information to law enforcement that enables them to prosecute others. In our hypothetical, Jane wasn’t able to do so.
In some federal districts, the prosecutor might even seek a higher sentence – a minimum of 20 years – because Jane has a prior drug felony charge.
Under the DOJ’s new policy, a 10- or 20-year sentence would likely turn into about 5 years or less. Since Jane’s offense didn’t involve violence or weapons, because she did not have significant ties to a major drug ring, because she was not a leader in the drug operation, and because she does not have an extensive criminal history, the prosecutor, satisfied that Jane tried to cooperate but could not actually further the investigation, may charge Jane with possessing a unspecified quantity (not a kilo) of heroin with intent to distribute it, thereby permitting the judge to impose a sentencing under the 10-year mandatory minimum.
Under the advisory sentencing guidelines, Jane’s suggested sentencing range would be around 5 or 6 years, and the judge would be permitted to impose less if he or she felt it was appropriate. [emphasis added]
Here is the wording in the Holder Memorandum that sets out the new policy:
Certain Mandatory Minimum Sentencing Statutes Based on Drug Quantity: Prosecutors should continue to ascertain whether a defendant is eligible for any statutory mandatory minimum statute or enhancement. However, in cases involving applicability of Title 21 mandatory minimum sentences based on drug type and quantity, the prosecutor should decline to charge the quantity necessary to trigger a mandatory minimum sentence if the defendant meets each of the following criteria:
- The defendants relevant conduct does not involve the use of violence, the credible threat of violence, the possession of a weapon, the trafficking of drugs to or with minors, or the death or serious bodily injury to any person;
- The defendant is not an organizer, leader, manager or supervisor of others within a criminal organization;
- The defendant does not have significant ties to large-scale drug trafficking organizations, gangs, or cartels; and
- The defendant does not have a significant criminal history. A significant criminal history will normally be evidenced by three or more criminal history points but may involve fewer or greater depending on the nature of any prior convictions.
Timing and Plea Agreements: If information sufficient to determine that the defendant meets the above criteria is available at the time initial charges are filed, prosecutors should decline to pursue charges triggering a mandatory minimum sentence. However, if this information is not yet available, prosecutors may file charges involving these mandatory minimum statutes pending further information and a determination as to whether a defendant meets the above criteria. If the defendant ultimately meets the criteria, prosecutors should pursue a disposition that does not require a Title 21 mandatory minimum sentence. For example, a prosecutor could ask the grand jury to supersede the indictment with charges that do not trigger the mandatory minimum, or the defendant could plead guilty to a lesser included offense, or waive indictment in plead guilty to a superseding information that does not charge the quantity necessary to trigger the mandatory minimum.
Advocacy At Sentencing: Prosecutors must be candid with the court, probation, and the public as to the full extent of the defendant's culpability, including the quantity of drugs involved in the offense and the quantity attributable to the defendant's role in the offense, even if the charging document lacks such specificity. Prosecutors also should continue to accurately calculate the sentencing range of the United States Sentencing Guidelines. In cases where the properly calculated guideline range meets or exceeds the mandatory minimum, prosecutors should consider whether a below-guideline sentence is sufficient to satisfy the purposes of sentencing as set forth in 18 USC § 3553(a). In determining the appropriate sentence to recommend to the court, prosecutors should consider whether the defendant truthfully and in a timely way provided the government all information the defendant has concerning the offense.
Recidivist Enhancements: Prosecutors should decline to file an information pursuant to 21 USC § 851 unless the defendant is involved in conduct that makes the case appropriate for severe sanctions. When determining whether an enhancement is appropriate, prosecutors should consider the following factors:
- Whether the defendant was an organizer, leader, manager or supervisor of others within a criminal organization;
- Whether the defendant was involved in the use or threat of violence in connection with the offense;
- The nature of the defendant's criminal history, including any prior history of violent conduct or recent prior convictions for serious offenses:
- Whether the defendant has significant ties to large-scale drug trafficking organizations, gangs or cartels; and
- Other case specific aggravating or mitigating factors.
If you read the above carefully, you will understand that those who can benefit from Holder's decision are low-level offenders with a minimal criminal history. If you are such a defendant, then you should immediately take advantage of the decision. Even if the prosecutor has already filed an indictment that charges a weight of controlled substance that triggers the mandatory minimum, you can still benefit because the Memorandum instructs the prosecutor to seek a superseding indictment or information that does not include the weight of the drug. Your lawyer should meet with the prosecutor and ask him to take this step as instructed by the Memorandum.
Notice that in the section Advocacy At Sentencing, the prosecutor is instructed to tell the Court what the weight of the drug in the case really was (or his best estimate of it). The prosecutor is not allowed to hide anything from the Court. Even if the indictment does not charge the amount, the prosecutor will inform the judge at sentencing what the amount was. However, because the prosecutor has followed the Memorandum and not charged that amount in the indictment, he is sending an important message to the judge: that the government is leaving open the possibility of the judge issuing a sentence below the mandatory minimum.
Notice too the following: "In cases where the properly calculated guideline range meets or exceeds the mandatory minimum, prosecutors should consider whether a below-guideline sentence is sufficient to satisfy the purposes of sentencing as set forth in 18 USC § 3553(a)." This statement represents a big change in the attitude of the government at sentencing. Previously the government almost invariably sought the maximum sentence possible (generally a strict guideline sentence, or even an above-guideline sentence in rare cases). Now Holder has instructed prosecutors to carefully consider whether a below-guideline sentence is warranted. This memorandum follows an important speech Holder gave to the American Bar Association, in which he made clear that the Justice Department is under extraordinary budget pressure due to the recent sequester, and that the pressure necessitates that the current rate of incarceration be lessened. He also stressed that the "War on Drugs" has resulted in many, many cases of unjust, overly harsh sentences for low-level drug offenders. The speech and the Memorandum are a strong message that prosecutors must take substantive steps to correct the situation.
The one negative point in the Memorandum is the following: "In determining the appropriate sentence to recommend to the court, prosecutors should consider whether the defendant truthfully and in a timely way provided the government all information the defendant has concerning the offense." The Memorandum is saying that the government's position on a below-guideline sentence is that it should be reserved for defendants who cooperate and debrief all they know about the case. In other words, snitches will benefit, and those who "hold their mud" will not. However, the government does not control the judge's decision with respect to a below-guideline sentence. It can make a recommendation, but your lawyer can make the case that, just because you stood tall and did not cooperate, that fact should not override the other facts in the case that justify a below-guideline sentence.
It is with regard to the mandatory minimum that the government does control the judge's decision, and that control has now changed to helping low-level offenders rather than hurting them.
The final section of the Memorandum, Recidivist Enhancements, is another important change in the government's policy at sentencing. This section relates to defendants who have prior drug convictions. In Busted By The Feds there is a lengthy chapter that discusses how the prosecutor controls the effect of prior drug convictions by his ability (and his ability alone) to file a notice of prior felony conviction pursuant to 21 USC § 851. If the prosecutor exercises this option, the result is a huge increase in the statutory sentencing range (an increase in both the mandatory minimum and maximum). Previously, prosecutors exercised this option aggressively, most often with the threat of using it unless the defendant pled guilty. Because the increase in the statutory range is so dramatic, almost all defendants threatened with a notice of prior felony conviction took the deal and pled guilty rather than risk losing at trial.
Now the Memorandum is telling prosecutors to back off and use this option only for offenders who are major players and warrant the increased sentence. If you are a defendant with prior drug convictions, but are a low-level offender (and/or with relatively low-level prior drug convictions), then your lawyer should bring to the attention of the prosecutor that he should not file the notice of prior felony conviction in your case. This could make a big difference in your defense strategy, because if you are innocent or if the government has a weak case against you, then you can better risk going to trial and losing without the very heavy sentence you would have received previously if found guilty.
Okay, nuff said for now.
And good luck!
Supreme Court Cases Significantly Increase Defense Attorney's Obligations in Respect to Guilty Pleas and Plea Bargains.
May 26, 2012
Today, approximately 97% of all federal criminal prosecutions are resolved through guilty pleas. In other words, only a very small number of defendants go to trial. Over the last two years (and just in the last few months) the Supreme Court has decided three cases that acknowledge that present-day criminal justice is overwhelmingly involved with guilty pleas and with plea bargaining and that, as a consequence, a defense attorney must give competent advice regarding guilty pleas, as well as plea offers made by the government.
Let's look at each of these cases and what they mean to a defendant who has been busted by the feds.
The first case is PADILLA v. KENTUCKY, decided March 31, 2010. Padilla, a native of Honduras, had been a lawful permanent resident of the United States for more than 40 years, though he was NOT a citizen. He served with honor as a member of the U.S. Armed Forces during the Vietnam War. He faced deportation after pleading guilty to the transportation of a large amount of marijuana in his tractor-trailer in the Commonwealth of Kentucky.
Padilla's attorney failed to advise him of this consequence prior to his entering the plea, and also told him that he "did not have to worry about immigration status since he had been in the country so long." Deportation consequences of a conviction are known as "collateral consequences" (as distinguished from direct consequences such as the length of sentence and the length of supervised release). For some time it has been well-established law that an attorney must give effective representation (and thus correct advice) as to the direct consequences of a conviction; it has not been clear what his obligations are with respect to collateral consequences of a conviction.
In PADILLA, the Court ruled that an attorney must give accurate advice as to the deportation consequences of a guilty plea. In Padilla's case the deportation consequences were clear; the Court found that a simple reading of the relevant immigration statute would have let the defense attorney know that Padilla would be deported as a consequence of pleading guilty. The Court decided that when the terms of the relevant immigration statute are succinct, clear, and explicit in defining the removal consequence for a conviction, counsel must inform his client whether he will be deported upon conviction.
The Court also found that Immigration law can be complex and it is a legal specialty of its own. Many attorneys who represent clients facing criminal charges will not be well versed in it. There will, therefore, be numerous situations in which the deportation consequences of a particular plea are unclear or uncertain. The duty of the defense attorney in such cases is more limited. When the law is not succinct and straightforward, a defense attorney need do no more than advise a noncitizen client that pending criminal charges MAY carry a risk of adverse immigration consequences.
The second case is LAFLER v. COOPER, decided March 21, 2012. Cooper was charged under Michigan law with assault with intent to murder and three other offenses. The prosecution offered to dismiss two of the charges and to recommend a 51-to-85-month sentence on the other two, in exchange for a guilty plea. In a communication with the court, Cooper admitted his guilt and expressed a willingness to accept the offer. But he rejected the offer, after his attorney convinced him that the prosecution would be unable to establish intent to murder because the victim had been shot below the waist. At trial, Cooper was convicted on all counts and received a mandatory minimum 185-to-360-month sentence.
The Supreme Court found that Cooper's attorney's advice was incorrect and constituted ineffective assistance of counsel (technically known as "deficient performance"). The Court found that, despite the fact that Cooper had received a fair trial and been convicted, that trial could not wipe clean the fact that he had been lead astray by his attorney and refused the plea offer, which had offered him a sentence less than one third of that which he later received after conviction at trial. The attorney had been obligated to give reasonable professional advice in relation to the plea offer and the subsequent potential for conviction at trial.
The third case is MISSOURI v. FRYE, also decided March 21, 2012. Frye was charged with driving with a revoked license. Because he had been convicted of the same offense three times before, he was charged, under Missouri law, with a felony carrying a maximum four-year prison term. The prosecutor sent Frye's counsel a letter, offering two possible plea bargains, including an offer to reduce the charge to a misdemeanor and to recommend, with a guilty plea, a 90-day sentence. Frye's attorney, however, did not convey the offers to Frye, and they expired. He subsequently pleaded guilty with no underlying plea agreement and was sentenced to three years in prison.
The Supreme Court found that the Sixth Amendment right to effective assistance of counsel extends to the consideration of plea offers that lapse or are rejected; that "the negotiation of a plea bargain is a critical stage for ineffective-assistance purposes." (Citing the ruling in Padilla) The Court found that, despite the fact that Frye had later entered a knowing and voluntary plea of guilty, that plea could not wipe clean the fact that his attorney had not communicated to him the original and more beneficial plea offer. The Court stated that, as a general rule, defense counsel has the duty to communicate formal prosecution offers to accept a plea on terms and conditions that may be favorable to the accused.
So, what are the lessons to be learned from these cases? First, is that, although all three were state cases and not federal cases, the rulings in them apply to federal defendants as well. Why? - Because the rulings involve the Sixth Amendment right to the assistance of counsel and thus apply equally to all defendants facing criminal prosecution. Second, is that these are important decisions and have already spread quickly through the ranks of defense attorneys; so defendants can reasonably expect much better performance by attorneys in communicating the deportation consequences of conviction, as well as any plea offer from the prosecution, as well as the relative advantages of the plea offer contrasted with the consequences of going to trial.
A third important point is that the ruling in Padilla encompasses only the deportation consequences of conviction. It has nothing to say about other collateral consequences of conviction, such as the potential loss of voting rights and government benefits such as food stamps. Many of these collateral consequences are discussed in the book Busted By The Feds. It is good to know them, especially as a defense attorney is not constitutionally obligated to discuss them with his client.
Fourth, and very important, is that, although all three of the defendants won their cases before the Supreme Court, they may in fact NOT gain anything of substance from their victories. The Court remanded each case back to the state to determine how the error by counsel will be remedied. The potential remedies are discussed is some detail by the Court and they involve potentially complex procedures. It is clear that the defendants still have real work to do in order to gain anything of substance, such as a new trial or a shorter sentence. On the facts of the cases, I would estimate that Frye has no chance of gaining anything of substance; Padilla has a very small chance, and only Cooper seems sure of getting a shorter sentence.
The above paragraph communicates something critical to the defendant: YOU DO NOT WANT TO HAVE TO RAISE ISSUES ON APPEAL (even potential winners) WHEN YOU COULD HAVE HANDLED THEM INTELLIGENTLY BEFORE CONVICTION.
For example, if you are a noncitizen, you need to 1) Ask your attorney what are the deportation consequences you face. Yes, your attorney is now obligated to tell you the consequences; still, better safe than sorry, so question him about them because of the chance he may not fulfill his obligation and fail to tell you about them. 2) Check the deportation consequences yourself. Read your indictment and the charges you face, and then read the relevant immigration law and how it relates to those charges and deportation. This is especially important if the attorney is not clear as to what the exact consequences are, and thus tells you that you MAY face deportation consequences. 3) If necessary, hire an immigration lawyer to explain the deportation consequences. 4) If it is clear that the charges mandate deportation, and if staying in this country is very important to you, then you must weigh the risk of going to trial in order to avoid deportation. Or you must ask your attorney if there is any way that the charges can be changed, so that a guilty plea would not mandate deportation - is the prosecutor open to such a change?
As for plea offers, make it clear to your attorney that he should communicate any offer from the government IMMEDIATELY to you so that you will have time to carefully consider it before the offer expires. Make sure you understand your sentencing guidelines and the potential sentence you face if you go to trial and lose; see how it compares to the sentence in the plea offer. Plea bargaining is discussed in great detail in Busted By The Feds; several chapters are devoted to the subject. Suffice it to say that it is an area with a lot of hidden traps and pitfalls, and the onus is on you, the defendant, to carefully check everything your attorney tells you and to understand for yourself a plea offer.
If your attorney tells you (as Cooper's did) that the government will not be able to convict you at trial, BE VERY SKEPTICAL of his advice. Prosecutors are not fools; generally they do not bring serious charges that are bogus. Even though you are not an attorney, often you can get a gut sense if the attorney is correct. For example, Cooper, if he had taken the time, should have been able to realize that just because the bullets he fired landed below the victim's waste, it would still be easy for the prosecution to establish attempt to murder.
Finally, keep a written record of all your interactions with your attorney (even your attempted interactions, such as phone calls or letters to your attorney to which he did not respond). A written record is essential if your attorney makes serious errors and you later want to file an appeal or a 2255 motion claiming ineffective assistance of counsel.
In fact, from the moment you are arrested and are facing criminal charges, begin to WRITE and NOT JUST THINK about your defense and the charges you are facing. Busted By The Feds encourages every defendant to take an active part in his case; it contains the critical information a defendant needs to protect himself. But there is A LOT OF INFORMATION. You must pick out the points that apply to you and write them down and consider them carefully. The subject is too vast and important to try and keep the information in your head. Remember that in the final analysis, you, the defendant, best know the facts of your case; and FAR AND AWAY you have the strongest motivation to understand your case and get the best result possible. So, give yourself the essential tool of writing and considering all aspects of your case, as well as recording all interactions with your attorney.
DO NOT SELL YOURSELF SHORT. Busted By The Feds strongly recommends that you hire the best defense attorney you can, and that such an attorney is probably the most important asset in your case. Nevertheless, even the best attorney can be helped by a conscientious client who is also considering the case.
Just to give you an example, I know of a defendant who was represented by one of the most famous attorneys in the country in a complicated Savings and Loan case in Texas. He was convicted on a set of charges in one federal district after he had signed a plea agreement that resolved charges in another district. It was only after he arrived in Federal prison and began to consider the case himself and use the law library, that the defendant realized that the plea agreement (a very complicated plea agreement) had actually forbid his being prosecuted on the charges he was convicted of. Believe me, this man was kicking himself for not having taken the same interest in his case beforehand, while he was facing charges and his attorney was preparing a defense. He realized that all along he himself had had the resources to look carefully and discover the key fact that would have prevented his prosecution. He just didn't take the necessary interest and do the necessary work.
Okay, nuff said for now, and good luck.
Good News: Fast-Track Programs Now Available in All Federal District Courts
In 2003 Congress directed the Sentencing Commission to issue a guideline for something called an “Early Disposition Program” with authority for downward deductions of up to four levels. The Commission did as Congress directed and the program resulted in certain “fast-track” programs, which were meant to give defendants sentencing concessions in exchange for a prompt guilty plea and the waiver of procedural rights such as the right to appeal. The vast majority of these cases involved aliens who would agree to immediate deportation following the completion of their sentences. The application of this program was only available in certain districts.
The fast-track programs at first were confined to districts in the Southwest of the United States, which handle a great many deportation cases. As time passed, the programs were adopted in additional districts no longer limited to the southwestern border districts; rather, some, but not all, non-border districts sought and received authorization to implement fast-track programs.
Because districts without fast-track programs were often sentencing deportable aliens to sentences greater than those in the fast-track districts, sentencing disparities resulted, and these disparities were often contested by defendants asking for a Booker variance to bring their sentences into line with similar defendants in a fast-track district. The Courts of Appeals, however, could not reach a consensus if such Booker variances are allowed; the Circuits split on the issue. Because of this circuit conflict, Federal Attorneys in non-fast-track districts routinely faced motions for variances based on fast-track programs in other districts. Courts that granted such variances were left to impose sentences that introduced additional sentencing disparities.
The Department of Justice eventually realized that to avoid the disparities and the resources involved in deciding Booker variances, it would allow fast-track programs for deportable aliens in ALL districts. Districts prosecuting felony illegal reentry cases should implement the new policy no later than March 1, 2012.
The directive from the DOJ also clarifies the criteria for how an alien defendant qualifies for the fast-track program, and how the program is to be implemented:
A. Defendant Eligibility. The United States Attorney retains the discretion to limit or deny a defendant’s participation in a fast-track program based on –
(1) The defendant’s prior violent felony convictions (including murder, kidnapping, voluntary manslaughter, forcible sex offenses, child-sex offenses, drug trafficking, firearms offenses, or convictions which otherwise reflect a history of serious violent crime);
(2) The defendant’s number of prior deportations, prior convictions for illegal reentry under 8 U.S.C. § 1326, prior convictions for other immigration-related offenses, or prior participation in a fast-track program;
(3) If the defendant is part of an independent federal criminal investigation, or if he or she is under any form of court or correctional supervision; or
(4) With supervisory approval, circumstances at the time of the defendant’s arrest or any other aggravating factors identified by the United States Attorney.
B. Expedited Disposition. Within 30 days from the defendant being taken into custody on federal criminal charges, absent exceptional circumstances such as the denial of adequate assistance of counsel or a substantial delay in necessary administrative procedures, the defendant must agree to enter into a plea agreement consistent with the requirements of Section C, below.
C. Minimum Requirements for “Fast-Track” Plea Agreement. The defendant must enter into a written plea agreement that includes at least the following items –
(1) The defendant agrees to a factual basis that accurately reflects his or her offense conduct and stipulates to the facts related to the prior conviction and removal;
(2) The defendant agrees not to file any of the motions described in Rules 12(b)(3), Fed. R. Crim. P.;
(3) As determined by the United States Attorney after taking into account applicable law and local district court practice and policy, the defendant agrees to waive the right to argue for a variance under 18 U.S.C. § 3553(a), and to waive appeal and the opportunity to challenge his or her conviction under 28 U.S.C. § 2255, except on the issue of ineffective assistance of counsel; and
(4) The United States Attorney shall retain discretion to impose additional procedural requirements for fast-track plea agreements; specifically, the United States Attorney has discretion to require that the defendant agree to enter into a sentencing agreement pursuant to Fed. R. Crim. P. 11(c)(1)(C), and/or to waive a full pre-sentence investigation as conditions of participation.
D. Additional Provisions of a Plea Agreement . If the above conditions are satisfied – including those imposed at the discretion of the United States Attorney as provided for in Section C(4) – the attorney for the Government shall move at sentencing pursuant to Sentencing Guidelines Section 5K3.1 for a downward departure from the adjusted base offense level found by the District Court (after application of the adjustment for acceptance of responsibility) as follows:
Four levels for all defendants, except those with a criminal history category VI or with at least one felony conviction for a serious violent offense. For the latter category, if the defendant is not excluded under Section A(1), the government may only offer a two-level departure, with supervisory approval on a case-by-case basis after considering the interest of public safety.
Warning: Time Off for RDAP (Residential Drug Abuse Program)
May Not Be What You Think!
Many federal defendants agree to accept plea agreements because they believe that they will actually serve one year less than their sentences because they expect to complete the RDAP (Residential Drug Abuse Program) in prison and get a year off their time. But for most of them that “year off” is now just a pipe dream.
For several years the Bureau of Prisons has had more demand for the RDAP programs than it has beds. It also had a shortage of halfway-house space for all the RDAP graduates who did get the year off. So, it has gradually been reducing the average time off that it gives to those who do graduate. At first, the reductions in time off weren’t significant, so the average reduction remained reasonably close to a full year; but in the recent past B.O.P. policies have changed and the average time off is now significantly less – perhaps as low as six months instead of a year – and many RDAP graduates are getting no time off at all. Those who do get time off are often getting only six months or even three months, instead of the full year off.
B.O.P. program statement 5331.02 sets out the current rules regarding time off for RDAP completion. These rules apply to inmates who begin the RDAP program on or after March 16, 2009. Since the program typically lasts only nine months, these rules should now apply to virtually everyone. The pertinent portion of Program Statement 5330.11 is reproduced here:
10. Length of Sentence
Following completion of Transitional Drug Abuse Treatment (TDAT), inmates found to be eligible for release under 18 U.S.C. § 3621(e) may receive that release based upon the length of the sentence, as detailed in the table below.
Early Release Time Program
30 months or less
No more than 6 months
No more than 9 months
No more than 12 months
Note: The early release time-frame reductions shown on the table are not pro-rated by days. For, example, if an inmate’s sentence is 36 months and any number of days, 9 months is the maximum sentence reduction allowed, whether the inmate’s sentence is 36 months and 0 days, or 36 months and 30 days.
Any change in current offense sentence length as imposed by order of the Court will result in a recalculation of sentence computation and provisional incentive. For example, a 36-month sentence reduced to a 24-month sentence will result in no more than a 6-month early release.
The eligibility rules for RDAP have also been tightened up by the B.O.P. to make it more difficult for inmates to qualify. One significant such change is that the B.O.P. now takes it upon itself to decide whether or not an inmate has a drug problem, regardless of what might be said about that subject in the inmate’s P.S.I. (Pre-Sentence Investigation Report). So, it is no longer enough to prove it to medical staff in the B.O.P. by showing them your needle marks or other convincing evidence.
On the flip side, the changes in the rules also make it easier for some inmates to get into RDAP (and get time off) who couldn’t in the past. For example, inmates with a real drug problem whose P.S.I. fails to mention it can now provide proof to the prison staff and get into the program. And inmates convicted of child pornography offenses are now eligible for early release, where before they were not. (Inmates convicted of sex offenses against children remain ineligible)
Unfortunately, the B.O.P. has chosen to set out its rules and criteria for RDAP placement and for time off in two separate Program Statements. In order to fully understand the RDAP program and its benefits you must read both these program statements. P.S. 5331.02 presents the early release procedures under 18 U.S.C. § 3621(e) and P.S. 5330.11 presents the Psychology Treatment Programs, including RDAP. You may access either of these documents by going to the link below.
If you are negotiating a plea agreement, it is in your best interests to have the latest and most accurate information about the sentence reduction available to you under B.O.P. practices.
Go to this ink to locate the relevant B.O.P. Program statements:
B.O.P. : HALFWAY HOUSE BEDS ARE SCARCE
Most inmates being realease from federal prisons now are getting less time in halfway houses than they would have received if the had been released two years ago. Case Managers and Wardens may still reccomend the same terms of up to six months that they have been recommending for several years, but those recommendations are being reduced by the B.O.P.'s CCMs (Community Corrections Managers) when the final determinations are made (usually a year or less before the inmate's projected realease date.) As a result, many inmates who expected to go to a halfway house in three, four or six months are finding that their release dates (to the halfway houses) are later than they expected. And there is little they can do about this.
The reason for this recent change in the B.O.P.'s practise is easy to understand: It's the economy! Halfway house residents during 2009 have found it harder that usual to find steady jobs. As a result, many of them are remaining in the halfway houses for their full terms, instead of going out to home releases after they have earned a couple of paychecks. These longer stays in the halfway houses are keeping those beds full, so they are not becoming available for new releases as early as they used to. And there is no place to put new inmates who are being released now.
I am now seeing many inmates who would normally get six months in a halfway house being sent to them just 60 or 90 days prior to their release dates. Some of them are getting as little as a week of halfway house time.
The B.O.P. is not doing a good job at explaining this problem to it's inmates, so there are many men and women getting unpleasant surprises when they least expect them - just before they expected to go out the gates. If you or an acquaintance is counting on a longer term - four to six months - in a halfway house later this year, you would be wise to plan for the contingency that the time you have been led to expect may not be the time that you finally receive.
12 month halfway house term.
In a related matter, many inmates are expecting to get 12 months in a halfway house, instead of just six months. This expectation is driven by the Second Chance Act that Congress passed in 2008.
It is true that the Second Chance Act now permits the B.O.P. to give inmates up to twelve months in a halfway house, but it is not true that anyone being released in the next couple of years will get the extra halfway house time.
The law itelf instructed the B.O.P. to begin implementing the longer terms on an experimental basis, and the B.O.P. isn't doing very much experimenting. I have heard of rare instances of someone getting the extra six months, but I have never had personal knowledge of one. They appear to be extremely rare, given to very few inmates across the country. It is not yet clear what criteria the B.O.P. uses to choose the lucky ones who get the extra halfway house time, and the suspicion exists that is is being used as a special reward to inmates who have been especially helpful to staff in one way or another.
But there is another more important reason very few inmates get the extra time in a halfway house, and it is the same problem discussed in the first part of this article: a lack of bedspace.
Even before the Second Chance Act was passed by Congress, the B.O.P. was already using all available halfway house beds to near-capacity. So even if they had wanted to start giving everybody double the earlier terms in halfway houses, there was no bedspace to put them in. The only way the longer halway house periods contemplated by the Second Chance Act can ever become a reality is if the number of halfway houses is substantially increased, or if given that opportunity. With the current political and ecomonic situation it doesn't seem likely that either of these two possibilities will occur in the foreseeable future, so 12-month terms in halfway houses are still just a dream in inmate's eyes; they are not likely to become common for many more years.