Federal Appeals blog covering all of the latest criminal decisions from the different federal courts of appeal across the nation.

Legal papers and gavel

Federal criminal appeals are difficult to understand, so this blog is going to address one of the common misconceptions. A main misconception is that a federal criminal appeal or, more specifically, a ‘direct’ appeal, is an opportunity to re-address or re-open the facts that were presented at trial. It is definitely not that at all! In fact, an appeal and a trial essentially have nothing in common other than the defendant and the prosecuting entity.

NOTE: Every defendant’s case is different; we encourage you to reach out to our office to schedule a free phone consultation to discuss the specifics of your loved ones’ case with our knowledgeable and compassionate staff.

So, what *is* a federal criminal appeal?  Essentially, it is a legal proceeding by which the judgement (or order) of the court – usually a district court – is attacked on some legal grounds. The defendant or his/her attorney files written ‘briefs’ (which are rarely brief). These briefs claim that certain errors warrant the reversal of a conviction or, at the very least, a reduction of a sentence. The government then has an opportunity to respond with their brief. In a few cases, the appellate court may hear oral arguments from both sides to clarify points raised in the briefs. This process often takes months (and in a few cases, it can take years) from start to finish. 

During the Appeals Process

During the appeal process, the appellate court will review the records of the prior court’s proceedings to determine whether there are adequate grounds to grant the appeal. These ‘proceedings’ occur almost entirely in writing. Each side files briefs raising and responding to legal errors alleged to have taken place in the district court. 

The records that are reviewed include all pre- and post-trial motions, all evidence admitted to the court and a word-for-word transcript of the trial. In many cases, the evidentiary documents and physical evidence are actually transported to the site of the appellate court. This is done so that the court can examine them first-hand as it considers the legal arguments. In addition to reviewing these materials, the appellate court will also review the written briefs submitted by each party. As mentioned above, in a very few number of cases, oral arguments from counsel will be heard to clarify any points raised by the written briefs. 

Because the entire proceeding is mostly virtual, appellate courts are not courts ‘of record’. That means there are no official court reporters, no witness stands and no juries, nor are they fact-finding courts. Generally, appellate courts do not receive evidence or testimony. Instead, they review, consider and resolve legal arguments AFTER the facts of the case have already be received, reviewed and judged in the district court. 

REMEMBER: Every defendant’s case is different; contact our office to schedule a free phone consultation to discuss the specifics of your loved ones’ case with our knowledgeable and compassionate staff.

Confused attorney

Our office gets many questions about this topic, and in this short blog, we’re going to attempt to provide a bit more clarity on this complex issue. (NOTE: There are many, many more complexities to this issue than we can outline in a blog; please reach out and contact our office for a free consultation to discuss your particular case.)

The most important thing to know is that a defendant only gets ONE SHOT at filing a U.S.C. § 2255 motion except in rare cases where new evidence is found, or the Supreme Court makes an extraordinary ruling that changes the process of similar cases. This means that you are taking a BIG risk by using consultants or paralegals or anyone other than an experienced attorney to file a motion like this. We strongly encourage you to reach out and contact our office for a free consultation with one of our knowledgeable professionals to get more information and a quote for services. 

The preparation and execution of a § 2255 motion is without a doubt the most important part of the process. Once the process is initiated, later motions can be argued, re-written and re-submitted, but to have your case receive a summary dismissal due to a bad first filing cannot be easily fixed. That is why we strongly urge you to hire experienced, competent, hands-on attorneys to help you and your loved one with this important process. It can (and often does) make the difference between success and failure.

Q: “What exactly is a Title 28 U.S.C. § 2255 Motion?

A § 2255 motion is essentially a non-direct appeal. Direct appeals are those entered immediately after a conviction. This type of appeal is a collateral attack on the sentence of incarceration itself for constitutional issues.

Q:“Can I file a § 2255 Motion?”

To answer this question, we start with 3 main criteria:

  1. Only federal inmates may file
  2. Complaints cannot be made if they could have been made on direct appeal
  3. Complaints must be an attack on the conviction or sentence themselves, not issues related to confinement (such as Residential Drug Abuse Program (RDAP) acceptance, placement in halfway house, or holdings in Solitary/SHU)

Next, there is a one-year time frame in which a § 2255 appeal can be made; however, this timeframe is based on one of four dynamics:

  1. One year from the date of the final judgement OR
  2. One year from the removal of obstacles to filing OR
  3. One year from a Supreme Court ruling that impacts a defendant’s case OR
  4. One year from the date of when facts are discovered that make it possible to file the motion

Normally, cases in the federal criminal system have a direct appeal. But when the direct appeal did not work, was never filed, does not have the ability to work, or simply does not meet the needs of the defendant, a § 2255 is often the way to go.

We strongly encourage you to reach out and contact our office for a free consultation with one of our knowledgeable professionals to get more information and a quote for services. 

Q: “What does ineffective assistance of counsel really mean?”

One of the most commonly used ‘triggers’ as a basis for filing a § 2255 motion is the claim of “ineffective assistance of counsel.”

Here’s how it works: the Sixth Amendment of our Constitution guarantees everyone the right to an effective lawyer if you are charged with a crime in Federal Court. A § 2255 motion is how a defendant claims that their lawyer was ineffective, BUT they must show two things:

  • First – you must show ‘deficient performance’ or a gross deviation of the standard of care, among other things. This means that you must show that your lawyer didn’t perform as well as he should have. By way of example, if a lawyer who is typically good at his job goes out and interviews a witness to prepare for your case, but your lawyer failed to do that – AND you can show it – then that’s how you can make this failure obvious. Another example of this would be if you asked your lawyer to file a notice of appeal and they did not.
  • Second – you have to show that your attorney’s error MATTERED – or ‘caused prejudice’. Continuing with the example above, if your lawyer didn’t talk to a witness and by failing to do so, there was a reasonable likelihood that there would have been a different result in your case, that supports the concept that your attorney’s ineffectiveness negatively impacted your case. If, however, your lawyer failed to talk to a witness who likely would not have testified anyway or had no helpful information to add to your case, then your point is not proven. 

Other examples may include:

  • Defense Attorneys who do not mention or fight for sentencing adjustments or who offer no evidence with their sentencing enhancement objections
  • Defense Attorneys who give their clients poor advice on whether to take a plea or to go to trial, which impact the defendant’s understanding of their plea or decision to go to trial
  • Defense Attorneys who fail to raise important issues during the original prosecution

In summary, § 2255 motions are an extremely complex area of the law and should not be taken lightly. If you intend to raise this argument on your own, we cannot strongly enough urge you to be careful. We have seen and heard stories of how poorly drafted and argued petitions can, and have, resulted in negative outcomes for the defendant. 

Please, reach out to our office for a free consultation with one of our compassionate and helpful professionals. We can provide you with information and a quote for services that will help you decide if this course of action is right for you and your loved one. 

(photo by Ron Levine)

Did you know that – largely due to the use of ‘mandatory minimum sentences’ over the past 30 years – elderly prisoners are the fastest-growing segment of the Federal Prison population? According to the Bureau of Justice, from 1999 to 2016, the number of inmates in state and federal prisons who were 55 years or older increased 280 percent! For comparison, during the same period, the number of younger adults grew by only 3 percent. As a result, the percentage of older inmates increased from 3 percent of the total prison population to 11 percent.

Prior to the First Step Act, the BOP released less than 100 people over a two-year period.

Luckily, the First Step Act has provisions to address this, which will help to allow older inmates the opportunity to be released to home and family and will also help to reduce the expenses of incarcerating aging inmates. Statistics have shown that elderly prisoners reoffend at lower rates, which helps to assure the community that they are not a danger to society. It just doesn’t make sense to have Americans pay more for the incarceration of elderly prisoners who post little or no public safety threat. 

Sadly, prior to the First Step Program, the Bureau of Prisons (BOP) had such narrow criteria, there were less than 100 people released over a two-year period – out of a total prison population of more than 200,000!! It is our hope that these numbers will be significantly more positive in years to come. (NOTE: There are many, many more criteria to this program than we can outline in a blog; please contact our office to discuss your particular case.)

So – what do you need to know? First, there are three general groups of inmates eligible for consideration of a reduction in sentence (RIS).

GROUP 1: “New Law” Elderly Inmate (non-medical)

  • The inmate is aged 70 or older
  • They are not serving a life sentence or a term for a crime of violence or a sex offense
  • The must not have attempted to escape or escaped from a BOP institution
  • Not – in the view of the BOP – at substantial risk of engaging in criminal conduct or endangering any person or the public if released to home detention
  • Has served 30 years or more of their term after 11/1/87

GROUP 2: Terminally ill or chronic or seriously ill (related to the aging process) inmate

  • The inmate is aged 65 or older
  • Suffers from a chronic or serious medical condition related to the aging process
  • Is experiencing deteriorating mental or physical health that substantially diminishes their ability to function in a correctional facility
  • Conventional treatment promises no substantial improvement to their mental or physical condition; and
  • Have served at least 50 percent of their sentence

GROUP 3: ‘Other’

  • The inmate is 60 or older
  • They have served either 10 years or 75 percent of their sentence, whichever is greater
  • They are not serving a life sentence or a term for a crime of violence or a sex offense
  • The must not have attempted to escape or escaped from a BOP institution
  • Not – in the view of the BOP – at substantial risk of engaging in criminal conduct or endangering any person or the public if released to home detention

As you can imagine, there is a lot of information in the First Step Act, to be sure. And, as mentioned above, there are many, many more criteria to this program than we can outline in a blog. If you have questions, or if you believe that your loved one might be eligible for relief from the court, then please reach out to us by visiting our website (www.GordonDefense.com) and scheduling a free consultation with one of our compassionate and helpful professionals. 

The FIRST STEP Act was approved by the Senate Tuesday with a vote of 87-12.  It was approved by the House of Representatives with a vote of 358-36.  On Friday the FIRST STEP Act was signed into law by President Trump. 

The FIRST STEP Act makes changes to the way that “good time” is assessed by the Bureau of Prisons, retroactively applies the Fair Sentencing Act of 2010, Reauthorizes the Second Chance Act, allows inmates to petition the court for compassionate release, bans the shackling of women during child birth, adds “sunlight” provisions to parts of these bills and several other things.  This explainer will discuss a majority of portions of the Act. 

To be clear, we would have liked for the FIRST STEP Act to do more, especially for current inmates. Many portions of the FIRST STEP Act are not retroactive and as such do nothing for you all inside.  It is my hope that like the Fair Sentencing Act, portions of the FIRST STEP Act that have not been deemed retroactive will be so in the future. 

If you would like to print this out and mail it to your loved one you can do so by clicking here.



Within 210 days the Attorney General must develop and publicly release a risk and needs assessment system.  That system must determine the recidivism rate of each prisoner, classify their risk of recidivism, determine the risk of violent misconduct of the prisoner, and determine what type and amount of evidence-based recidivism reduction programming that is appropriate and assign that amount of programing to the prisoner. 

This risk must be reassessed periodically and afterwards the inmate must be reassigned to the proper programs for their amended risk level.  There are rewards for participating in these programs including phone and video conference privileges up to 30 minutes a day and 510 minutes per month, more visitation time if the warden approves and moving to a facility closer to home.  Other incentives such as more e-mail time and transfer to and commissary spending limits are up to the warden. 

Also, for every 30 days of participation in the programs or “productive activities” they can earn 10 days of time credits.  And an inmate with either a minimum or low risk of recidivism can earn an additional 5 days of time credits for every 30 days of successful participation in these programs if they are minimum or low risk of recidivism.  This is not retroactive and does not apply to time in detention prior to their sentence (so time in a county jail or in an MDC prior to sentencing). 

These time credits shall be applied toward time in prerelease custody (Halfway house or home confinement).  The time credits gained as part of the risk and needs assessment system classes can be “cashed in” at the end of a sentence if the amount of credits is equal to the amount of time that an inmate has left.   


The Act indicates that “time credits earned under this paragraph by prisoners who successfully participate in recidivism reduction programs or productive activities shall be applied toward time in prerelease custody or supervised release. The Director of the Bureau of Prisons shall transfer eligible prisoners, as determined under section 3624(g), into prerelease custody or supervised release.”


These time credits don’t apply to the following crimes under the following sections:

‘‘(D) INELIGIBLE PRISONERS.—A prisoner is ineligible to receive time credits under this paragraph if the prisoner is serving a sentence for a conviction under any of the following provisions of law:

‘‘(i) Section 32, relating to destruction of aircraft or aircraft facilities.

‘‘(ii) Section 33, relating to destruction of motor vehicles or motor vehicle facilities.

‘‘(iii) Section 36, relating to drive-by shootings.

‘‘(iv) Section 81, relating to arson within special maritime and territorial jurisdiction.

‘‘(v) Section 111(b), relating to assaulting, resisting, or impeding certain officers or employees using a deadly or dangerous weapon or inflicting bodily injury.

‘‘(vi) Paragraph (1), (7), or (8) of section 113(a), relating to assault with intent to commit murder, assault resulting in substantial bodily injury to a spouse or intimate partner, a dating partner, or an individual who has not attained the age of 16 years, or assault of a spouse, intimate partner, or dating partner by strangling, suffocating, or attempting to strangle or suffocate.

‘‘(vii) Section 115, relating to influencing, impeding, or retaliating against a Federal official by injuring a family member, except for a threat made in violation of that section.

‘‘(viii) Section 116, relating to female genital mutilation.

‘‘(ix) Section 117, relating to domestic assault by a habitual offender.

‘‘(x) Any section of chapter 10, relating to biological weapons.

‘‘(xi) Any section of chapter 11B, relating to chemical weapons.

‘‘(xii) Section 351, relating to Congressional, Cabinet, and Supreme Court assassination, kidnapping, and assault.

‘‘(xiii) Section 521, relating to criminal street gangs.

‘‘(xiv) Section 751, relating to prisoners in custody of an institution or officer.

‘‘(xv) Section 793, relating to gathering, transmitting, or losing defense information.

‘‘(xvi) Section 794, relating to gathering or delivering defense information to aid a foreign government.

‘‘(xvii) Any section of chapter 39, relating to explosives and other dangerous articles, except for section 836 (relating to the transportation of fireworks into a State prohibiting sale or use).

‘‘(xviii) Section 842(p), relating to distribution of information relating to explosives, destructive devices, and weapons of mass destruction, but only if the conviction involved a weapon of mass destruction (as defined
in section 2332a(c)).

‘‘(xix) Subsection (f)(3), (h), or (i) of section 844, relating to the use of fire or an explosive.

‘‘(xx) Section 871, relating to threats against the President and successors to the Presidency.

‘‘(xxi) Section 879, relating to threats against former Presidents and certain other persons.

‘‘(xxii) Section 924(c), relating to unlawful possession or use of a firearm during and in relation to any crime of violence or drug trafficking crime.

‘‘(xxiii) Section 1030(a)(1), relating to fraud and related activity in connection with computers.

‘‘(xxiv) Section 1091, relating to genocide.

‘‘(xxv) Any section of chapter 51, relating to homicide, except for section 1112 (relating to manslaughter), 1113 (relating to attempt to commit murder or manslaughter, but only if the conviction was for an attempt
to commit manslaughter), 1115 (relating to misconduct or neglect of ship officers), or 1122 (relating to protection against the human immunodeficiency virus).

‘‘(xxvi) Any section of chapter 55, relating to kidnapping.

‘‘(xxvii) Any offense under chapter 77, relating to peonage, slavery, and trafficking in persons, except for sections 1593 through 1596.

‘‘(xxviii) Section 1751, relating to Presidential and Presidential staff assassination, kidnapping, and assault.

‘‘(xxix) Section 1791, relating to providing or possessing contraband in prison.

‘‘(xxx) Section 1792, relating to mutiny and riots.

‘‘(xxxi) Section 1841(a)(2)(C), relating to intentionally killing or attempting to kill an unborn child.

‘‘(xxxii) Section 1992, relating to terrorist attacks and other violence against railroad carriers and against mass transportation systems on land, on water, or through the air.

‘‘(xxxiii) Section 2113(e), relating to bank robbery resulting in death.

‘‘(xxxiv) Section 2118(c), relating to robberies and burglaries involving controlled substances resulting in assault, putting in jeopardy the life of any person by the use of a dangerous weapon or device, or death.

‘‘(xxxv) Section 2119, relating to taking a motor vehicle (commonly referred to as ‘carjacking’).

‘‘(xxxvi) Any section of chapter 105, relating to sabotage, except for section 2152.

‘‘(xxxvii) Any section of chapter 109A, relating to sexual abuse.

‘‘(xxxviii) Section 2250, relating to failure to register as a sex offender.

‘‘(xxxix) Section 2251, relating to the sexual exploitation of children.

‘‘(xl) Section 2251A, relating to the selling or buying of children.

‘‘(xli) Section 2252, relating to certain activities relating to material involving the sexual exploitation of minors.

‘‘(xlii) Section 2252A, relating to certain activities involving material constituting or containing child pornography.

‘‘(xliii) Section 2260, relating to the production of sexually explicit depictions of a minor for importation into the United States.

‘‘(xliv) Section 2283, relating to the transportation of explosive, biological, chemical, or radioactive or nuclear materials.

‘‘(xlv) Section 2284, relating to the transportation of terrorists.

‘‘(xlvi) Section 2291, relating to the destruction of a vessel or maritime facility, but only if the conduct that led to the conviction involved a substantial risk of death or serious bodily injury.

‘‘(xlvii) Any section of chapter 113B, relating to terrorism.

‘‘(xlviii) Section 2340A, relating to torture.

‘‘(xlix) Section 2381, relating to treason.

‘‘(l) Section 2442, relating to the recruitment or use of child soldiers.

‘‘(li) An offense described in section 3559(c)(2)(F), for which the offender was sentenced to a term of imprisonment of more than 1 year, if the offender has a previous conviction, for which the offender served a term of imprisonment of more than 1 year, for a Federal or State offense, by whatever designation and wherever committed, consisting of murder (as described in section 1111), voluntary manslaughter (as described
in section 1112), assault with intent to commit murder (as described in section 113(a)), aggravated sexual abuse and sexual abuse (as described in sections 2241 and 2242), abusive sexual contact (as described in sections 2244(a)(1) and (a)(2)), kidnapping (as described in chapter 55), carjacking (as described in section 2119), arson (as described in section 844(f)(3), (h), or (i)), or terrorism (as described in chapter 113B). ‘‘(lii) Section 57(b) of the Atomic Energy Act of 1954 (42 U.S.C. 2077(b)), relating to the engagement
or participation in the development or production of special nuclear material.

‘‘(liii) Section 92 of the Atomic Energy Act of 1954 (42 U.S.C. 2122), relating to prohibitions governing atomic weapons.

‘‘(liv) Section 101 of the Atomic Energy Act of 1954 (42 U.S.C. 2131), relating to the atomic energy license requirement.

‘‘(lv) Section 224 or 225 of the Atomic Energy Act of 1954 (42 U.S.C. 2274, 2275), relating to the communication or receipt of restricted data.

‘‘(lvi) Section 236 of the Atomic Energy Act of 1954 (42 U.S.C. 2284), relating to the sabotage of nuclear facilities or fuel.

‘‘(lvii) Section 60123(b) of title 49, relating to damaging or destroying a pipeline facility, but only if the conduct which led to the conviction involved a substantial risk of death or serious bodily injury.

‘‘(lviii) Section 401(a) of the Controlled Substances Act (21 U.S.C. 841), relating to manufacturing or distributing a controlled substance in the case of a conviction for an offense described in subparagraph (A), (B), or (C) of subsection (b)(1) of that section for which death or serious bodily injury resulted from the use of such substance.

‘‘(lix) Section 276(a) of the Immigration and Nationality Act (8 U.S.C. 1326), relating to the reentry of a removed alien, but only if the alien is described in paragraph (1) or (2) of subsection (b) of that section.

‘‘(lx) Section 277 of the Immigration and Nationality Act (8 U.S.C. 1327), relating to aiding or assisting certain aliens to enter the United States.

‘‘(lxi) Section 278 of the Immigration and Nationality Act (8 U.S.C. 1328), relating to the importation of an alien into the United States for an immoral

‘‘(lxii) Any section of the Export Administration Act of 1979 (50 U.S.C. 4611 et seq.)

‘‘(lxiii) Section 206 of the International Emergency Economic Powers Act (50 U.S.C. 1705).

‘‘(lxiv) Section 601 of the National Security Act of 1947 (50 U.S.C. 3121), relating to the protection of identities of certain United States undercover intelligence officers, agents, informants, and sources.

‘‘(lxv) Subparagraph (A)(i) or (B)(i) of section 401(b)(1) of the Controlled Substances Act (21 U.S.C. 841(b)(1)) or paragraph (1)(A) or (2)(A) of section
1010(b) of the Controlled Substances Import and Export Act (21 U.S.C. 960(b)), relating to manufacturing, distributing, dispensing, or possessing with intent to manufacture, distribute, dispense, or knowingly importing or exporting, a mixture or substance containing a detectable amount of heroin if the sentencing court finds that the offender was an organizer, leader, manager, or supervisor of others in the offense, as determined under the guidelines promulgated by the United States Sentencing Commission.

‘‘(lxvi) Subparagraph (A)(vi) or (B)(vi) of section 401(b)(1) of the Controlled Substances Act (21 U.S.C. 841(b)(1)) or paragraph (1)(F) or (2)(F) of section
1010(b) of the Controlled Substances Import and Export Act (21 U.S.C. 960(b)), relating to manufacturing, distributing, dispensing, or possessing with intent to manufacture, distribute, or dispense, a mixture or substance containing a detectable amount of N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] propanamide, or any analogue thereof.

‘‘(lxvii) Subparagraph (A)(viii) or (B)(viii) of section 401(b)(1) of the Controlled Substances Act (21 U.S.C. 841(b)(1)) or paragraph (1)(H) or (2)(H) of section 1010(b) the Controlled Substances Import and Export
Act (21 U.S.C. 960(b)), relating to manufacturing, distributing, dispensing, or possessing with intent to manufacture, distribute, or dispense, or knowingly
importing or exporting, a mixture of substance containing a detectable amount of methamphetamine, its salts, isomers, or salts of its isomers, if the sentencing court finds that the offender was an organizer, leader, manager, or supervisor of others in the offense, as determined under the guidelines promulgated by the United States Sentencing Commission.

‘‘(lxviii) Subparagraph (A) or (B) of section 401(b)(1) of the Controlled Substances Act (21 U.S.C. 841(b)(1)) or paragraph (1) or (2) of section 1010(b) of the Controlled Substances Import and Export Act (21 U.S.C. 960(b)), relating to manufacturing, distributing, dispensing, or possessing with intent to manufacture, distribute, or dispense, a controlled substance,
or knowingly importing or exporting a controlled substance, if the sentencing court finds that—

‘‘(I) the offense involved a mixture or substance containing a detectable amount of N-phenylN-[1-(2-phenylethyl)-4-piperidinyl] propanamide,
or any analogue thereof; and
“(II) the offender was an organizer, leader, manager, or supervisor of others in the offense, as determined under the guidelines promulgated
by the United States Sentencing Commission.

Also, deportable individuals are ineligible to receive time credits. 

The first risk and needs assessment is due no later than 180 days from the completion of the risk and needs assessment system (so now we are looking at 390 days out for this program to start). The BOP will have a phase in period of 2 years from the risk and needs assessment for each inmate to start providing these programs and the priority will go to the inmates who are closest to being released.


Section 103 is the first of many sunlight provisions meant to provide accountability. The comptroller general will audit the BOP and the risk and needs assessment system at the BOP facilities to make sue that the proper measures are being taken and that these assessment programs are being implemented. 


Congress is Authorizing $75,000,000 for this assessment program.  80 percent must be reserved for use to implement this system.


These provisions are only for federal convictions and does not apply, at this time, to state or territorial convictions. 


Section 106 prohibits faith-based programs to be discriminated against for any purpose

Faith-based programs are allowed to be considered under the Act for time credits.  The BOP director must also ensure that non-faith-based programs that can qualify for earned time credit are also offered. 


Within 30 days of the signing of this act the National Institute of Justice must create an independent review committee to assist the Attorney general in carrying out his duties, including conducting a review of existing prisoner risk and needs assessment systems, “developing recommendations regarding evidence-based recidivism reduction programs and productive activities,” and conducting research and data analysis.  The BOP must cooperate with this review. 

Within two years of the formation of the committee they must give report to congress about what crimes were ineligible for time credits, how many prisoners were excluded, the criminal history categories of prisoners excluded and the number of prisoners ineligible to apply time credits who don’t participate in programming.


Section 102 fixes a problem with how good time credit is calculated.  Under this portion of the act an inmate gets  “up to 54 days [of good time] for each year of the prisoner’s sentence imposed by the court.”  It also fixes a prorating issue by stating that  “credit for the last year of a term of imprisonment shall be credited on the first day of the last year of the term of imprisonment.”  The Marshall Project indicates that this retroactive fix would free about 4000 prisoners. 


This part of the act gives more information about the storage of firearms.


The Act ends the shackling of pregnant women from the date that pregnancy is confirmed by a healthcare professional and ends after post-partum recovery.  There are exceptions for if there is an immediate and credible flight risk or a threat of harm to herself or others. 

If restraints are used then the officer has to write a report about what happened and why they placed the restraints on. 


Title IV deals with sentencing reform. These reforms, while great, are not retroactive so they will not assist the great many of you who are in for life for two convictions for “prior felony drug offense(s).”  I hope that these reforms are made retroactive in the future. If you are in jail now and facing charges, then you would be best off conferring with your lawyer to make sure that they are aware of these changes and that they know how these changes may affect you. 


The Act replaces the concept of being enhanced for “felony drug offenses” with “serious drug felony” and “serious violent felony.”

A serious drug felony “means an offense described in section 924(e)(2) of title 18, United States Code, for which—

“(A) the offender served a term of imprisonment of more than 12 months; and

“(B) the offender’s release from any term of imprisonment was within 15 years of the commencement of the instant offense.

A ‘serious violent felony’ means—

“(A) an offense described in section 3559(c)(2) of title 18, United States Code, for which the offender served a term of imprisonment of more than 12 months; and

“(B) any offense that would be a felony violation of section 113 of title 18, United States Code, if the offense were committed in the special maritime and territorial jurisdiction of the United States, for which the offender served a term of imprisonment of more than 12 months.

Note two things:  first the imprisonment has to be more than 12 months, not that more than 12 months was possible.  Second, note that the release from any term of imprisonment has to be within 15 years of the commencement of this case.  So in other words, the government will not be able to bring up 30-year old priors against someone to enhance them. 

Instead of the mandatory minimum of 20 for one prior felony drug offense the Act provides the following:  “If any person commits such a violation after a prior conviction for a serious drug felony or serious violent felony has become final, such person shall be sentenced to a term of imprisonment of not less than 15 years.”

Instead of the mandatory life for two prior felony drug offenses, the act provides that after 2 or more prior convictions for a serious drug felony or serious violent felony have become final, such person shall be sentenced to a term of imprisonment of not less than 25 years.”

So in other words we go from life to a minimum of 25 years for two priors and from 20 years to 15 years for one prior.  BUT ALSO NOTE that a person can get enhanced under this section for either a “serious drug felony” or a “serious violent felony.”  So we could be looking at a situation where a person gets a violent offense, finishes their time 15 years ago and can get enhanced for it here when they couldn’t before. 

Again, this applies to cases that are currently going through the courts but have not been sentenced.  So if you have a pending case and your attorney does not know about these reforms and how they affect you then you may need to let them know about the changes. 


Before the Act, 18 U.S.C. 3553(a)(1) stated that a defendant could not have more than 1 criminal history point as determined by the sentencing guidelines. So a judge could only give someone the safety valve if they had one point, which was very restrictive.  The Act broadens that to include defendants who do not have:

 “(A) more than 4 criminal history points, excluding any criminal history points resulting from a 1-point offense, as determined under the sentencing guidelines;

“(B) a prior 3-point offense, as determined under the sentencing guidelines; and

“(C) a prior 2-point violent offense, as determined under the sentencing guidelines;

Again, this is not retroactive unfortunately. 


Prior to this, an individual who was charged with multiple 924(c)’s in the same indictment was subject to the enhanced penalty of twenty-five years for the second charge.  So in other words, if a person was charged with committing a 924(c) offense on Monday and another one on Tuesday could be liable to serve a sentence of five years on the first case (the “Monday” case) and twenty-five years on the second case (the “Tuesday” case). This led to individuals getting sentenced to thirty years or more without a chance for rehabilitation. 

The Act fixes this by by striking “second or subsequent conviction under this subsection” and inserting “violation of this subsection that occurs after a prior conviction under this subsection has become final”.  This would mean that the person in the situation above would be subject to five years for each offense because the first offense had not become final yet. 


Prior to the Fair Sentencing Act a person charged with an offense involving crack cocaine would serve 100 times more than a person charged with the same amount of powder cocaine.  After the Fair Sentencing Act that number went down from 100:1 to 18:1.  The Fair Sentencing Act was not originally deemed retroactive.

The FIRST STEP Act retroactively applies the Fair Sentencing Act of 2010.  An inmate seeking relief under this portion must file a motion asking the court to grant the retroactive application of the Fair Sentencing Act.  An inmate can only file one motion for relief under this Act, if an inmate is denied under this Act then they may not file another one.  This means that filing a strong motion is paramount. 

The Law office of Jeremy Gordon will be accepting cases for inmates seeking to file for retroactive application of the Fair Sentencing Act. We are only taking a select few cases in order to provide excellent service to our clients.  If you believe that you are eligible for relief under the Fair Sentencing Act of 2010 then please reach out to out office at 972-483-4865 today or email us at [email protected] 


The Second Chance Act has some technical amendments and appropriates money for the Second Chance Act.



The FIRST STEP Act indicates that the BOP shall house the inmate within 500 miles of their primary residence as well as placing an inmate at facilities closer to the prisoner’s primary residence even if the prisoner is already in within 500 miles of their primary residence. 


The act amends 18 U.S.C. 3624 by placing at the end “The Bureau of Prisons shall, to the extent practicable, place prisoners with lower risk levels and lower needs on home confinement for the maximum amount of time permitted under this paragraph.”


The Act makes “eligible terminally ill offenders” to The Federal Prisoner Reentry Initiative as well as reducing the eligibility from 65 years of age to 60 years of age. 


The Act adds that in addition to the warden filing a compassionate release for an inmate that a compassionate release can also be ordered by the court. In the past, denial or inaction on compassionate releases had no real remedy to be challenged in the courts. Under section 503 of the FIRST STEP Act, an inmate can petition the court after they have sought all their administrative remedies “or the lapse of 30 days from the receipt of such a request by the warden of the defendant’s facility, whichever is earlier.” 

In addition, if an inmate is diagnosed with a terminal illness the BOP must notify the inmate’s  “attorney, partner, and family members of the defendant’s condition and inform the defendant’s attorney, partner, and family members that they may prepare and submit [a compassionate release petition].”  Further the BOP must allow the inmate’s partner and family members, including extended family, the opportunity to visit the inmate in person.

The FIRST STEP Act also mandates that BOP employees “assist the defendant in the preparation, drafting, and submission of a request for a [compassionate release petition]” and process it within 14 days.  The Act indicates that an inmate’s “attorney, partner, or family member” can present the application.  Further, the BOP is required to post this information “including in prisoner handbooks, staff training materials, and facility law libraries and medical and hospice facilities, and make available to prisoners upon demand” about these compassionate release rules. 

There is a “sunlight” provision here as well requiring the BOP to submit a report to congress about how many compassionate release petitions were filed, how many were granted, how many were denied, the reasons for the grant and denial of the same, the amount of time it took the BOP to process each petition, the number of visits allowed to terminally ill patients and the number of inmates who passed away while waiting to hear about their petitions. 

If you are an inmate who has sought and was denied compassionate release then you may be able to receive relief from the court.  The Law Office of Jeremy Gordon can assist you in the preparation of a compassionate release petition from the BOP, the administrative remedy process and the filing of a compassionate release petition with the court.  Our office successfully sought and received a compassionate release for an individual within the past month.  I will post more about that in a future email, but in the meantime if you would like to reach out to our office about that you can email us at [email protected] or call us at 972-483-4865. 


Section 607 mandates reports on opioid abuse be submitted to congress within 90 days of the signing of this Act.  This shall include consideration on “medication-assisted treatment as a strategy to assist in treatment where appropriate and not as a replacement for holistic and other drug-free approaches.” The BOP director is responsible for this report. 

Further, within 120 days the “Director of the Administrative Office of the United States”

assessing the availability of and capacity for the provision of medication-assisted treatment for opioid and heroin abuse by treatment service providers serving prisoners who are serving a term of supervised release, and including a description of plans to expand access to medication-assisted treatment for heroin and opioid abuse whenever appropriate among prisoners under supervised release.


Section 613 ends juvenile solitary confinement, meaning placement of a juvenile alone in a cell, room or other area for any reason. There are exceptions when a juvenile poses a risk of harm.  In those cases the staff member must attempt to talk with the juvenile to de-escalate the situation and permitting a qualified health professional to talk to the juvenile. In those cases where a juvenile is a risk of harm there is a max time limit of 3 hours if the juvenile is a risk of harm to others and 30 minutes if the juvenile is a risk of harm to themselves. 

There is a lot in the FIRST STEP Act, to be sure.  If you have questions or believe that you are eligible for relief from the court then please reach out to us at [email protected] and we can discuss with you further.  I will provide updates and addendums to this explainer over the next few weeks. 

United States vs. Lewis, No. 17-7033 

Lewis pled guilty to felon in possession of a firearm under 18 U.S.C. 922(g). At sentencing, the district court found Lewis to be an Armed Career Criminal based on two drug charges and one burglary charge out of Kansas. He was sentenced to 188 months and did not appeal.

Lewis filed a 2255 motion to vacate his ACCA sentence, and argued that his third prior conviction under Kansas statute 21-3715 only qualified as a violent felony under the now-void residual clause in light of Johnson v. United States and Mathis v. United States. The district court denied Lewis’ motion.

Lewis appealed and sought a certificate of appealability from the Tenth Circuit. Lewis argued that the district court erred in denying his Johnson claim and concluding that Mathis is not retroactively applicable to cases on collateral review. 

The Tenth Circuit noted that Lewis would only be granted a COA “if [Lewis] made a substantial showing of the denial of a constitutional right.”

The court looked at the Kansas burglary statute and determined that both sections went beyond the generic burglary definition because they included tents and places other than buildings. The court said that “under the ‘relevant background legal environment’ at the time of sentencing, it ‘would have been permissible for the district court to examine the underlying charging documents and/or jury instructions to determine if [Petitioner] was charged only with burglary of buildings.” (note: in the Tenth Circuit, the modified categorical approach has been deemed appropriate to determine whether defendant was charged with entering a building).

The court observed the charging documents and determined that [Lewis] “unlawfully, feloniously, willfully, knowingly and without authority enter[ed] into and remain[ed] within a building … with the intent to commit a theft therein, contrary to K.S.A. 21-3715, (Burglary), a class D felony.” Thus, based on the charging documents, “there would have been little dispute at the time of … sentencing that” Petitioner’s burglary conviction fell within the scope of the ACCA’s enumerated offenses clause.” As a result, Lewis did not prove that the sentencing court used the residual clause to classify his burglary as a predicate and as such could not prevail under Johnson.

However, the Tenth Circuit looked at their conflicting case law and saw that reasonable jurists could “debate whether the district court erred in declining to retroactively apply Mathis v. United States.”

The court determined that there two parts to the analysis of a Johnson case. First, the court looks at the law at the time of the sentencing in order to determine if a Johnson error occurred. “If a Johnson error is established, we then turn to harmless error analysis.” This is because “Johnson harmless error review goes to the question of remedies and resentencing” 

The court determined that “[t]he relevant background legal environment is […] a ‘snapshot’ of what the controlling law was at the time of sentencing and does not take into account post-sentencing decisions that may have clarified or corrected pre-sentencing decisions.”  Mathis can only be used as part of the Harmless Error analysis. 

Although the court granted COA in order to clarify when to use lawt hat was in place at the time of the sentencing and what to use post-sentencing, the Tenth Circuit still affirmed the district court’s denial of Lewis’ 2255motion on the merits. This is because for purposes of determining whether there was Johnson error, the court cannot use Mathis. Because Mathis cannot be used to determine whether there was Johnson error, Lewis’ claim fails.  The court granted the COA but affirmed the denial of the 2255. No.17-7033

JEREMY’S NOTES:  The most important thing here is that in the Tenth Circuit, the courts engage in a multiple part test regarding Johnson claims. First, the court asks whether there was a Johnson error. For that test, in the Tenth Circuit, only controlling law at the time of the sentence can be used. Second, the court asks whether there is harmless error. Courts in the Tenth Circuit can use Mathis and other post-conviction case law to determine if harmless error exists.  

Please reach out to our office for more info on this and to find out if your loved one is eligible for relief.

In United States vs. Qunitero,  No. 17-20727 the Fifth Circuit held that an error in the sentencing guidelines could meet the plain error analysis.

Quintero pled guilty to illegally re-entering the U.S. He wasoriginally scheduled for sentencing under the 2015 Guidelines, but was delayedto December after the 2016 Guidelines Manual had gone into effect. Quintero successfullyappealed to the Fifth Circuit. He was resentenced on November 1, 2017, underthe 2016 Guidelines but received an enhancement for a “crime of violence” under2L1.2(b)(1)(A)(ii) of the 2015 Guidelines. (Note: the 2016 Guidelines do nothave the crime of violence sentencing enhancement under 2L1.2(b)(1)(A)(ii)).Quintero raised an ex post facto challenge. At the time of Quintero’s illegalre-entry, the 2015 Guidelines were in place and, since of the recent decisionin United States v. Herrold, would have resulted in a lower sentencing range. Herroldinvalidated the use of prior Texas burglary convictions to apply the2L1.2(b)(1)(A)(ii) enhancement in the 2015 Guidelines. Without the enhancement,the respective ranges of the 2015 and 2016 Guidelines are no longer identical:the 2015 range becomes lower because the 2016 Guidelines do not include theenhancement.” (internal citations omitted)

The government argued that Quintero was prevented from raising an ex post facto challenge because of the “‘law of the case’ doctrine, the ‘invited error’ doctrine and the ‘forfeiture doctrine.’”

The court explained that the “law of the case” doctrine means that “an issue of fact or law decided on appeal may not be reexamined . . . by the appellate court on subsequent appeal.”  But since Quintero had never raised his ex post facto argument in the initial appeal and since the court hadn’t ruled on it, that the issue had not been “decided on appeal.”

The court also indicated that the “invited error” doctrine failed.That doctrine prohibits a defendant from “complain[ing] on appeal of errorsthat he himself invited or provoked the district court to commit.” The doctrinealso applies when a defendant intends to “convince the district court to [dosomething] it would not otherwise have done.” In this case, when the courtasked if the 2016 guidelines applied, Quintero’s counsel said “yes yourhonor.”  The court held that this is notaffirmative persuasion and provocation that the doctrine applies to. Thus the‘invited error’ doctrine does not apply to this case. 

While Quintero did not object, he did not waive the ex post facto argument. So the court reviewed the issue under plain error. For plain error, Quintero must prove
“(1) there was error;
(2) the error was plain and obvious;
(3) the error affected [his] substantial rights; and
(4) the court should exercise its discretion to reverse because the plain error seriously affected the fairness, integrity, or public reputation of the judicial proceeding.”

With regard to plain error, Quintero indicated that the error is the violation of the ex post facto clause.  After Herrold, which invalidated the use of prior Texas burglary convictions to “apply the 2L1.2(b)(1)(A)(ii)enhancement in the 2015 Guidelines.”  Without the enhancement, the range of the 2015 Guidelines becomes lower. The district court erred by applying the2016 Guidelines and it was plain and obvious. As a result, the first two prongs of plain error were met. 

The court also said that the error affected Quintero’s substantial rights. “A defendant can show that his substantial rights were affected if he demonstrates a reasonable probability that he would have received a more favorable sentence in the absence of the district court’s misapplication of theGuidelines.”  Further, “Where the error is assessing a sentence under the incorrect Guidelines range, “the error itself can, and most often will, be sufficient to show a reasonable probability of a different outcome absent the error.”

Without the 2L1.2(b)(1)(A)(ii) enhancement, the 2015 Guidelines would yield a sentencing range of 24-30 months, 16-22 months less than whatQuintero received. Plus, the government did not shown that the court would sentence Quintero to 46 months again. 

Finally, “An error affecting a defendant’s Guidelines range ordinarily will satisfy [the] fourth prong” of the plain error analysis.” While the district court may impose any sentence on resentencing, Quintero has served in excess of the 2015 Guideline range. Thus satisfying the fourth criteria of plain error. 

The Fifth Circuit vacated the sentence and remanded back down to the district court. No. 17-20727

JEREMY’S NOTES:  Although this is a rare situation, it is an example of plain error with regards to an error affecting a defendant’s Guidelines range ordinarily will satisfying [the] fourth prong of the plain error analysis. This case also shows an example of an ex post facto claim with regard to the Sentencing Guidelines. 

If you have an ex post facto claim with regards to the sentencing guidelines or other type please reach out to our office to talk to us about doing a case review.  

In United States of America vs Desmond Camp, No. 17-1879, Camp was charged with Hobbs Act robbery, in violation of 18 U.S.C. 1951; using a firearm during a crime of violence, in violation of 18 U.S.C. 924(c); and being a felon in possession of a firearm, inviolation of 18 U.S.C. 922(g)(1). He pled guilty to all three counts. Among otherthings, the district court determined that Camp was a career offender under theSentencing Guidelines because Hobbs Act robbery was a crime of violence, andthat his two prior offenses—a 2003 federal bank robbery conviction and a 1990Michigan armed robbery conviction––were also crimes of violence. Camp appealedhis sentence, arguing that Hobbs Act robbery is not a crime of violence andcould not serve as a predicate for a 924(c) conviction or a career offenderclassification. 

The Sixth Circuit first considered whether Hobbs Act robbery was a crime of violence under 924(c). The court looked to United States v. Gooch, 850 F.3d 285, 292 (6th Cir. 2017), cert. denied, 137 S. Ct. 2230 (2017), where the court held that the Hobbs Act statute was divisible and that Hobbs Act robbery “requires a finding of actual or threatened force, or violence, or fear of injury, immediate or future,” to person or property. And therefore “clearly has as an element the use, attempted use, or threatened use of physical force against the person or property of another as necessary to constitute a crime of violence under 924(c)(3)(A).” Because one panel cannot overrule a prior panel, Gooch foreclosed Camp’s argument that Hobbs Act robbery does not qualify as a crime of violence under 924(c).

Next, the court considered whether Hobbs Act robbery is a crime of violence under the U.S. Sentencing Guidelines for career offender purposes.

Under the Guidelines, a defendant is a career offender if:

(1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction;
(2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and

(3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.

The Guidelines further state that a crime of violence is:

[A]ny offense under federal or state law, punishable by imprisonment for a term exceeding one year, that— (1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (2) is murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson, extortion, or the use or unlawful possession of a firearm described in 26 U.S.C. 5845(a) or explosive material as defined in 18 U.S.C. 841(c).

The court noted that “[a]lthough both 18 U.S.C. 924(c) and USSG 4B1.1(a) have a use-of-force clause, the Guidelines’ force clause is limited to force against the person, while 924(c) covers force against person or property. “

The Hobbs Act statute provides:

Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined under this title or imprisoned not more than twenty years, or both.

Robbery is in turn defined as:

the unlawful taking or obtaining of personal property from the person or in the presence of another, against his will, by means of actual or threatened force, or violence, or fear of injury, immediate or future, to his person or property, or property in his custody or possession, or the person or property of a relative or member of his family or of anyone in his company at the time of the taking or obtaining.

The Sixth Circuit further noted that the Tenth Circuit had squarely addressed this issue in United States v. O’Connor, 874 F.3d 1147 (10th Cir. 2017), where the court held that Hobbs Act robbery is broader than the enumerated offenses of robbery and therefore fails to qualify under the Guidelines’ use-of-force clause.

Next, the court noted that the case law and the Guidelines support using the categorical approach for both the instant offense (the Hobbs Act Robbery) and the prior offensess (the bank robbery and the other armed robbery).  

The court looked at whether the Hobbs Act robbery qualified as a crime of violence under the use-of-force clause. The plain text of the Hobbs Act statute criminalizes robbery accomplished by using or threatening force against “person or property.” Although this is enough under 924(c), this is not enough to criminalize someone as a career offender under the Guidelines. 

The court then examined whether Hobbs Act robbery could be a categorical match under the enumerated offense clause of 4B1.2. There are two crimes that could possibly fit the statute: robbery or extortion. 

The court agreed with the Tenth Circuit that Hobbs Act robbery reaches conduct that falls outside of generic robbery because the statute “plainly criminalizes the ‘misappropriation of property under circumstances’ that do not involve ‘immediate danger to the person[.]’”

Next, the court determined whether Hobbs Act robbery could fit the enumerated offense of extortion. The Guidelines define extortion as: “obtaining something of value from another by the wrongful use of (A) force, (B) fear of physical injury, or (C) threat of physical injury.” This does not include threats against property.  Because Hobbs Act robbery includes threats against property, then it cannot be a categorical match with generic robbery or extortion and is not a crime of violence.

Thus, the Sixth Circuit found that aHobbs Act robbery is not a crime of violence under the Guidelines for careeroffender purposes. Accordingly, the Sixth Circuit VACATED Camp’s sentence andremanded back to the district court. No. 17-1879

For more information on this and other Hobbs Act issues, please reach out to our office.  

legislative update

In the Wake of Dimaya, Congress Creates a Sweeping Definition of a “Crime of Violence”

A recent op-ed in the New York Times characterizes the ideology of “America First” as having three pillars – isolationism, protectionism, and restricting immigration. The third pillar is on full display in Congress’s new bill in response to the United States Supreme Court decision in Sessions v. Dimaya.

Specifically, the Supreme Court found the federal definition of “crime of violence,” unconstitutionally vague. In response, the House of Representatives passed a bill seeking to define “crime of violence” more clearly. A close look at the bill, however, reveals some serious problems for immigrants in the U.S.

Current “Crime of Violence” Definition is Too Vague – Sessions v. Dimaya

In the recent Dimaya decision, the Supreme Court struck down the definition of “crime of violence” as being too vague to be interpreted. At issue in Dimaya was whether a person, convicted of first-degree burglary, could be deported for having committed a “crime of violence,” as defined under federal law, 18 U.S.C. § 16.

The Court ultimately held the federal definition was simply too unclear to determine whether a first-degree burglary would constitute a “crime of violence” for deportation purposes.  The Court also invited Congress to pass legislation that provided a more-concrete definition of the phrase. Just a few days ago, the House of Representatives answered that invitation.

The Attempt at a Clearer Definition – The Community Safety and Security Act of 2018 – H.R. 6691

On September 7, 2018, the House passed a bill called the “Community Safety and Security Act of 2018.” The bill is focused on providing a federal definition of “crime of violence” that has the clarity and specificity to pass constitutional muster following the decision in Dimaya.

By way of summary, the Community Safety and Security Act defines the following specific criminal offenses as “crimes of violence:”

  • Abusive sexual contact;
  • Aggravated sexual abuse;
  • Sexual abuse;
  • Assault;
  • Arson;
  • Burglary;
  • Carjacking;
  • Child abuse;
  • Communication of threats;
  • Coercion;
  • Domestic violence;
  • Extortion;
  • Firearms use;
  • Fleeing;
  • Hostage taking;
  • Human trafficking;
  • Interference with flight crew members and attendants;
  • Kidnapping;
  • Murder;
  • Piracy;
  • Robbery;
  • Stalking;
  • Terrorism;
  • Unlawful possession or use a weapon of mass destruction, or explosives; and
  • Voluntary manslaughter.

In addition, the new bill has a “catch all” provision, stating that a “crime of violence” includes any offense that has, as an element of the offense, “the use, attempted use, or threatened use of physical force” against another’s person or property.

The new definition of “crime of violence” in the Community Safety and Security Act carefully tries to leave no discretion up to a court interpreting the statutory definition. Indeed, the problem with the definition in Dimaya was that the Supreme Court believed the Court was forced to speculate about whether a crime could be considered a crime of violence.

In the Community Safety and Security Act, by contrast, a “crime of violence” either expressly appears in the specific list of crimes provided, or the crime must contain an element of the offense that involves the use or threat of physical force. In short, a court does not need to speculate.  Now that the bill has passed the House, it moves to the Senate for consideration.

Why the Sweeping, Broad New Bill Means Danger for Immigrants

On the one hand, the Community Safety and Security Act demonstrates how our constitutional system of separation of powers is supposed to operate. The Judicial Branch should not be creating legislation. That is the province of the Legislative Branch. In Dimaya, the Supreme Court was concerned about having to speculate about the meaning of a statute, thereby opening the door to unwarranted “legislation.” Thus, it is appropriate that once the Court found something too vague to be interpreted, Congress then steps in with legislation to clarify the statute.

On the other hand, the Community Safety and Security Act appears to be a way in which the House is overreaching to the serious detriment of immigrants in this country, consistent with the anti-immigrant policies of the Republican-controlled Congress and White House. There are several reasons for this conclusion.

First, the new bill is incredibly broad, almost irrationally so. Crimes that do not often involve any kind of violence or physical force are now listed as “crimes of violence.” For example, the crime of “coercion” as expressly defined in the new bill includes coercing someone through fraud. No reasonable definition of “violence” could include a crime of simply lying to someone else.

Other examples of listed crimes that do not include any rational concept of “violence” include extortion, fleeing, or possession of an explosive device. Without question, it is possible that someone fleeing the police, or committing extortion, could do something violent. However, fleeing from the police is actually the opposite of being violent; it is running away from the police. Further, the new bill is trying to state that simply possessing something dangerous is a violent act.

Second, the new bill is harsher on immigrants.  Where the defendant in the Dimaya case was not deported, a similarly situated defendant would be deported under the new bill. In particular, the Supreme Court was unable to determine that Mr. Dimaya’s crime, first-degree burglary, was a “crime of violence” because burglary does not often involve confrontation with, or violence against, another person. Rather, it is typically breaking into a home or car. Thus, where the Supreme Court could not find Mr. Dimaya deportable for committing burglary, the new bill expressly says that all forms of burglary are “crimes of violence.”


Civil rights and immigrant rights groups have reason to be concerned.  The Community Safety and Security Act of 2018 is so broad in its definition of a “crime of violence” that undocumented immigrants who commit crimes that do not involve any violence or physical force could still be deportable.

The bill is now in the U.S. Senate. Time will tell how far this bill may go. In the meantime, it would not be a bad idea for immigrant rights advocates to pressure senators to cast a skeptical eye on the sweeping nature of the Community Safety and Security Act of 2018.

Jeremy Gordon, Esq., is an expert legal practitioner specializing in all types of federal criminal defense and post-conviction cases.  If you need top-notch legal representation, be sure to contact Jeremy for a free consultation at 844-ATTY-NOW.  



United States vs. Nichols, No. 17-5580

Nichols was convicted for felon in possession of a firearm in 2004. While the maximum for that offense is ten years imprisonment, he was enhanced under the Armed Career Criminal Act and received a sentence of 288 months.

While in prison, he was convicted and sentenced for conspiracy to distribute heroin and possession of heroin by an inmate. He was sentenced to 151 months to be served consecutively.

After the Supreme Court decisions in Johnson and Welch, Nichols filed a 2255 motion challenging his ACCA enhancement. The district court agreed that he should be resentenced, but instead of conducting a resentencing hearing, the court issued a memorandum opinion and order. By the time the court did this, he had already served 12 years in prison, which is two years more than the statutory maximum. The guideline range for the felon in possession was 51-63 months. The district court imposed a sentence of “time served” which ended-up being approximately 12 years. Nichols appealed claiming that his sentence exceeds the statutory maximum and the sentence is unreasonable. The reason this matters is because if he had received a sentence lower than 10 years, then the clock would start on his latest charges since both sentences were to run consecutively.

The Sixth Circuit said that the sentence was illegal and as such reversible by plain error. The district court had no authority to impose a sentence of 12 years imprisonment. The statutory maximum applied at that time because the ACCA used to enhance his sentence was already vacated. While the district court cited standard procedure in “impos[ition of] a corrected term of ‘time served’ where a petitioner entitled to Johnson-based collateral relief has already served in excess of the 120-month statutory maximum applicable to non-ACCA offenders under  18 U.S.C. § 924(a)(2),” the court also reasoned that the cases that the district court cited also involved prisoners who were eligible for immediate release following the correction of their sentences to “time served.” Nichols is not eligible for immediate release under that reasoning because he has another sentence to serve.

The government argued that there was no error committed by the court “because “[a] district court cannot actually turn back the clock to reduce the number of months a defendant has already spent in custody,” but the court disagreed, noting that “[A] sentence in excess of the statutory maximum is unlawful, regardless of how it is disguised and regardless of the amount of time the defendant has already served.”

Further, Nichols argued that his sentence was unreasonable. First, the court ruled that corrected sentences are subject to reasonable review. The court affirmed. The court can review sentences for reasonableness and the statute does not override the reasonableness standard.

Reasonableness requires that the sentence be procedurally and substantively reasonable.

“A sentence is procedurally unreasonable if the district court “fail[s] to calculate (or improperly calculate[es]) the Guidelines range, treat[s] the Guidelines as mandatory, fail[s] to consider the § 3553(a) factors, select[s] a sentence based on clearly erroneous facts, or fail[s] to adequately explain the chosen sentence—including an explanation for any deviation from the Guidelines range.” “Meanwhile, “a sentence may be substantively unreasonable where the district court ‘selects the sentence arbitrarily, bas[es] the sentence on impermissible factors, fail[s] to consider pertinent § 3553(a) factors, or giv[es] an unreasonable amount of weight to any pertinent factor.’”

The Sixth Circuit reviewed the order of the court in granting the § 2255 motion. That motion stated the following:

“Petitioner has already served twelve years in prison (Doc. 51, at 5), a total exceeding the ten-year custodial maximum applicable to him post-Johnson. As a result, his motion (Doc. 50) will be GRANTED and the term of imprisonment for the instant offense will be reduced to a “time served” sentence. The judgment dated December 14, 2004 (Doc. 28) will be AMENDED to reflect a term of supervised release of three years. The Clerk’s Office will be DIRECTED to prepare an amended judgment in accordance herewith.”

The court noted that the order contains no analysis in support of the corrected sentence, no reference to the guidelines range and no acknowledgement that the length of sentence departs from the guidelines range. This sentence is unreasonable because the appellate court cannot determine whether the district court properly used the guidelines as “the starting point and the initial benchmark” for the corrected sentence.” The sentence is procedurally unreasonable because the district court “failed to adequately explain the chosen sentence —including an explanation for any deviation from the Guidelines range.” “Because the district court elected to correct Defendant’s sentence rather than to conduct a de novo resentencing, the district court could properly rely on the explanation that the sentencing court originally provided in support of Defendant’s sentence. But to the extent that Defendant’s meritorious § 2255 motion rendered the original explanation insufficient “to allow for meaningful appellate review and to promote the perception of fair sentencing,” …the district court was obligated to supplement the original explanation.” Because the order in this case has no reference to Nichols’ original sentencing proceedings and no explanation for the corrected sentence the sentence cannot survive reasonable review and must be vacated.

The Sixth Circuit vacated and remanded Nichols’ sentence. No. 17-5580

The law firm of Jeremy Gordon has been practicing federal criminal appeals and post-conviction law since 2012. We have had successful outcomes in more than 60 cases in the past three years. Our entire staff is committed to providing excellent service to our clients and their families. We encourage you to contact our office today to visit with us on how we might be able to help you or your loved one get the representation they deserve.

In 2009, Kurt Harrington was convicted of seven drug offenses. The government filed a notice pursuant to 21 U.S.C. 841 and 851 based on a 2002 felony drug conviction. As a result, Harrington faced a mandatory term of life imprisonment “if death results from the use of substance and violation was committed after prior conviction for felony drug offense.” 21 U.S.C. 841(b)(1)(A). The district court sentenced Harrington to concurrent terms of life in prison on two counts, and 360 months on the five remaining counts. The Eighth Circuit Court of Appeals affirmed Harrington’s convictions in 2010.

In 2014, the Supreme Court decided Burrage v. United States, 571 U.S. 204 (2014). In Burrage, the Supreme Court held that “at least where use of the drug distribution by the defendant is not an independently sufficient case of the victim’s death or serious bodily injury, a defendant cannot be liable under the penalty enhancement provision of 21 U.S.C. 841(b)(1)(C) unless use is a but-for cause of the death or injury.” 571 U.S. at 218-19.

Following the Court’s decision in Burrage, Harrington filed a petition for writ of habeas corpus under 28 U.S.C. 2241, challenging his conviction and sentence. The petition was subsequently denied. However, in 2017, Harrington filed a second 2241 petition citing intervening out-of-circuit authority holding that Burrage is retroactively applicable to cases on collateral review.

The district court dismissed Harrington’s second 2241 petition on initial review without service. The court reasoned that “neither the Supreme Court nor the Sixth Circuit has yet indicated that Burrage is retroactive to cases on collateral review.” As an alternative, the district court also dismissed the petition on the basis that Harrington was not sentenced under the mandatory guidelines that existed prior to United States v. Booker, 543 U.S. 220 (2005).

Harrington appealed to the Sixth Circuit, and argued that Burrage is retroactively applicable on collateral review. The Sixth Circuit held that Harrington did properly petition for relief under 28 U.S.C. 2241, as Harrington met the requirements of the “savings clause.” 28 U.S.C. 2255(e).

In the Sixth Circuit, a petitioner may pass through the savings clause if they are barred from proceeding under section 2255, and “actually innocent.” Wooten v. Cauley, 677 F.3d 303, 307 (6th Cir. 2012).

The Sixth Circuit found that Harrington’s claim is properly construed as one of actual innocence. In Burrage, the Supreme Court referred to the death-results enhancement as “an element that must be submitted to the jury and found beyond a reasonable doubt.” 571 U.S. at 210. Thus, the “death-results” enhancement is not a sentencing enhancement, but rather a statutory element of a crime.

The Sixth Circuit further noted that Harrington’s actual innocence claim may have merit. A petitioner may demonstrate actual innocence by:

(1) the existence of a new interpretation of statutory law, (2) which was issued after the petitioner had a meaningful time to incorporate the new interpretation into his direct appeals or subsequent motions, (3) is retroactive, and (4) applies to the merits of the petition to make it more likely than not that no reasonable juror would have convicted him.

Wooten, 677 F.3d at 307-08.

The court found that the first two prongs were satisfied: Burrage is a new interpretation of 21 U.S.C. 841(b)(1) and decided well after Harrington’s 2009 conviction, his 2010 direct appeal, and the one-year window to file a 2255.

Next, the Sixth Circuit held that Burrage is retroactive:

“Substantive decision that ‘narrow the scope of a criminal statute by interpreting its terms’ apply retroactively to cases on collateral review. Schriro v. Summerlin, 542 U.S. 348, 351 (2004) (citing Bousley v. United States, 523 U.S. 614, 620-621 (1998)). Burrage fits that bill: because but-for causation is a stricter requirement than, for example, the contributing-cause rule rejected in Burrage, see 571 U.S. at 208, some conduct punished by 21 U.S.C. 841(b)(1) pre-Burrage is no longer covered post-Burrage. At least two of our sister circuits to consider the issue have held that Burrage applies retroactively to cases on collateral review. See Santillana v. Upton, 846 F.3d 779, 783-84 (5th Cir. 2017); Krieger v. United States, 842 F.3d 490, 499-500 (7th Cir. 2016).

“For purposes of motions under 2241, it makes no difference that the Supreme Court itself has not held that Burrage applies retroactively. The rule requiring retroactivity to be determined by the Supreme Court comes from Tyler v. Cain, 533 U.S. 656 (2001), a case that interpreted the statutory limitation set forth in 28 U.S.C. 2244(b)(2) on second-or-successive petitions brought by state prisoners under 28 U.S.C. 2254. There is no comparable limitation on petitions filed under 2241.”

The Sixth Circuit found that Harrington met the first three prongs for demonstrating actual innocence. However, the court declined to determine whether Harrington met the fourth prong that “no reasonable juror would have convicted him, because the petition was dismissed at initial review and there was no evidence before the Sixth Circuit.

Accordingly, the Sixth Circuit remanded the issue to the district court to hold an evidentiary hearing.

Judgment of the district court was vacated, and the case remanded for further proceedings.

Harrington v. Ormond, No. 17-6229

JEREMY’S TAKE: This is a great case out of the Sixth Circuit that interprets the savings clause of 28 U.S.C. 2255(e) and retroactivity of Supreme Court decisions. Every circuit has its own savings clause test, and navigating through 2241 proceedings can be extremely complex. If you are seeking assistance with a 2241 petition, please reach out to me at [email protected]

The law firm of Jeremy Gordon has been practicing federal criminal appeals and post-conviction law since 2012. We have had successful outcomes in more than 60 cases in the past three years. Our entire staff is committed to providing excellent service to our clients and their families. We encourage you to contact our office today to visit with us on how we might be able to help you or your loved one get the representation they deserve.

Pablo Lovo and Joel Sorto were found guilty of conspiracy to commit Hobbs Act robbery, 18 U.S.C. 1951, and using, carrying or possessing a firearm during a crime of violence. 18 U.S.C. 924(c). Lovo and Sorto appealed their convictions to the D.C. Circuit, which garnered a remand on claims of ineffective assistance of counsel. However, in that appeal, the D.C. Circuit held that the “residual clause” of 18 U.S.C. 924(c)(3)(B) was not unconstitutionally vague.

After that decision, the Supreme Court issued its opinion in Sessions v. Dimaya, which held that 18 U.S.C. 16(b) is unconstitutionally vague. Lovo and Sorto subsequently sought rehearing on the basis that Dimaya requires vacatur of their 924(c) convictions.

The court noted that 18 U.S.C. 16(b) and 924(c)(3)(B) were “materially identical.” And the government conceded that the panel should grant rehearing to determine the impact of Dimaya. Nonetheless, the government argued that 924(c)(3)(B) requires a case-specific approach that considers the defendant’s own conduct, rather than the “ordinary case” of the crime. As the D.C. Circuit noted, the government’s argument was an attempt to distinguish 924(c) to avoid “the constitutional concerns that [a categorical] interpretation would create following Dimaya.”

But, circuit precedent held that section 924(c)(3)(B) requires the use of the categorical approach. United States v. Kennedy, 133 F.3d 53, 56 (D.C. Cir. 1998). Therefore, the court rejected the government’s argument of distinguishing 924(c)(3) from section 16.

The D.C. Circuit held that the Supreme Court’s decision in Dimaya invalidates the residual clause of 18 U.S.C. 924(c)(3)(B). However, the court noted that it takes no position on whether conspiracy to commit Hobbs Act robbery may still qualify under 18 U.S.C. 924(c)(3)(A).
The court vacated Lovo’s and Sorto’s 924(c) convictions, and remanded to the district court for further proceedings.

United States v. Yonas Eshetu, a.k.a. Yonas Sebsibe, No. 15-3020

JEREMY’S TAKE: This case was decided earlier this month, and I have since received a lot of inquiries as to what impact Eshetu may have. The D.C. Circuit’s opinion is critical because it holds that 924(c)(3)(B) is in fact invalidated after the Court’s decision in Dimaya. But, the D.C. Circuit did not specifically address whether Hobbs Act conspiracy fails to qualify as a crime of violence under the elements clause of 924(c)(3)(A). I imagine this issue will be decided in the D.C. Circuit in the near future.

Since Dimaya, I have also received many inquiries as to what circuits have held Hobbs Act (substantive, conspiracy or attempted) fails to qualify as a crime of violence under 924(c)(3). I am working on a future newsletter that will take a circuit-by-circuit look at the impact of Dimaya, specifically on Hobbs Act related offenses. Keep an eye out for this.

The law firm of Jeremy Gordon has been practicing federal criminal appeals and post-conviction law since 2012. We have had successful outcomes in more than 60 cases in the past three years. Our entire staff is committed to providing excellent service to our clients and their families. We encourage you to contact our office today to visit with us on how we might be able to help you or your loved one get the representation they deserve.

584 U. S. ____ (2018), No. 16–1027.


The Supreme Court handed down an important search and seizure case in Collins vs. Virginia.  


Officers from the Albemarle County Police Department observed the same motorcycle driver commit a traffic infraction in two separate incidents.  In both situations, the cyclist got away from the officers. In both situations, he was driving the same motorcycle.


The officers investigated and determined that the motorcycle was stolen and in the possession of Collins.  The motorcycle had an extended frame. Collins’ facebook page showed the motorcycle that was used in the traffic infractions at the top of the driveway of a house.  The officer went to the house and parked on the street. From his position, he saw a motorcycle that had an extended frame covered with a white tarp at the same location and angle on the driveway as the facebook photograph.  The officer took a picture of the motorcycle from the street and then walked up to them to where the motorcycle was parked. In order to “investigate further” he pulled off the tarp and observed the same motorcycle that eluded them earlier, and that was in the facebook photos.  The officer ran the plates and found that it was stolen. When Collins returned him, he admitted that he bought the motorcycle without a title. He was charged with receiving stolen property.


Collins filed a motion to suppress the evidence that was obtained as a result of the warrantless search of the motorcycle.  He argued that the officer trespassed on the curtilage to conduct an investigation in violation of the Fourth Amendment. The trial court denied the motion.  The Court of appeals affirmed because the officer had probable cause and that there were numerous exigencies that justified the officer’s entry. The Supreme court affirmed saying that the Fourth Amendment’s Automobile Exception and that the motorcycle was contraband.  


The Supreme Court noted that “When a law enforcement officer physically intrudes on the curtilage to gather evidence, a search within the meaning of the Fourth Amendment has occurred.”  Furthermore, the court determined that the part of the driveway where the motorcycle was parked and searched was curtilage. In this case, it was because it was “an area adjacent to the home and ‘to which the activity of home life extends,” thus being in the curtilage and requiring a warrant.  This is because “A visitor endeavoring to reach the front door of the house would have to walk part way up the driveway, but would turn off before entering the enclosure and instead proceed up a set of steps leading to the front porch” and “When [the officer] searched the motorcycle, it was parked inside this partially enclosed top portion of the driveway that abuts the house.”  


Because of this, the officer’s actions were an encroachment on the fourth amendment in the item searched (the motorcycle) but also in the encroachment of his home.  So the next question was if the automobile exception justified the invasion of the curtilage. Writing for the court, Justice Sotomayor used the following hypothetical:


“Applying the relevant legal principles to a slightly different factual scenario confirms that this is an easy case. Imagine a motorcycle parked inside the living room of a house, visible through a window to a passerby on the street. Imagine further that an officer has probable cause to believe that the motorcycle was involved in a traffic infraction. Can the officer, acting without a warrant, enter the house to search the motorcycle and confirm whether it is the right one? Surely not.


The reason is that the scope of the automobile exception extends no further than the automobile itself.”


Sotomayor noted that “Nothing in our case law, however, suggests that the automobile exception gives an officer the right to enter a home or its curtilage to access a vehicle without a warrant.”  Further, “The Court already has declined to expand the scope of other exceptions to the warrant requirement to permit warrantless entry into the home.” The court went on to say that “searching a vehicle parked in the curtilage involves not only the invasion of the Fourth Amendment interest in the vehicle but also an invasion of the sanctity of the curtilage[ ]” for the same reason that officers may not enter a home to make an arrest without a warrant even when they have probable cause.  She also said that “The automobile exception does not afford the necessary lawful right of access to search a vehicle parked within a home or its curtilage because it does not justify an intrusion on a person’s separate and substantial Fourth Amendment interest in his home and curtilage.”


The court denied Virginia’s request to make a bright-line rule saying that “the automobile exception does not permit warrantless entry into ‘the physical threshold of a house or a similar fixed, enclosed structure inside the curtilage like a garage’” so that the officers wouldn’t have to make case by case determinations.  The court stated that the officers already have to do this because the curtilage has already been afforded constitutional protection. Also, Virginia’s proposed rule mistakenly places emphasis on visibility. Sotomayor said, “So long as it is curtilage, a parking patio or carport into which an officer can see from the street is no less entitled to protection from trespass and a warrantless search than a fully enclosed garage.”  Finally, “Virginia’s proposed bright-line rule automatically would grant constitutional rights to those persons with the financial means to afford residences with garages in which to store their vehicles but deprive those persons without such resources of any individualized consideration as to whether the areas in which they store their vehicles qualify as curtilage.”


The Supreme Court held that the automobile exception did not allow the officer to enter a home or its curtilage in order to search a vehicle.  The Supreme Court of Virginia reversed the decision on the Supreme Court of Virginia.

Koons v. United States. No. 17-5716

The petitioners in Koons v. United States had committed crimes that invoked the use of the mandatory minimums, their sentences were based on these ranges.  Each of them provided information to the government that assisted in the investigation and prosecution of a case. As a result of this the prosecutor filed for reduction motions that resulted in sentences below the mandatory minimums.  The court did not consider the guideline ranges on the case. This is because the court discarded those when the court sentenced the petitioners to the mandatory minimums.

Later, the sentencing commission approved Amendment 782, which retroactively reduced the guidelines allowing a proportional reduction in sentence for those convicted under the advisory guidelines. In this case, the petitioners claimed they should be eligible for a sentence reduction.  The court said that the petitioners would have to prove that their sentence was based on a sentence that was “based on” the guidelines. They were unable to, and their motions were denied.

Writing for the court, Justice Alito held that petitioners do not qualify for sentence reductions under §3582(c)(2) because their sentences were not “based on” their lowered Guidelines ranges, but instead their sentences were “based on their mandatory minimums and on their substantial assistance to the Government.


The court noted that they had ruled in Hughes that “for a sentence to be “based on” a lowered Guidelines range, the range must have at least played “a relevant part [in] the framework the [sentencing] judge used” in imposing the sentence,” but “when the ranges play no relevant part in the judge’s determination of the defendant’s ultimate sentence—the resulting sentence is not “based on” a Guidelines range.”  Here, the guideline ranges played no part in their sentences because “the ranges play[ed] no relevant part in the judge’s determination of the defendant’s ultimate sentence” as the guideline ranges were discarded for the mandatory minimums.


The court also noted in response to the petitioners argument that “What matters, instead, is the role that the Guidelines range played in the selection of the sentence eventually imposed—not the role that the range played in the initial calculation. And here, while consideration of the ranges may have served as the “starting point” in the sense that the court began by calculating those ranges, the ranges clearly did not form the “foundation” of the sentences ultimately selected.”


The Supreme Court affirmed the decision of the appellate court, denying the petitioner’s motions.  Koons v. United States. No. 17-5716

Hughes v. United States, No. 17–155, 584 U. S. ____ (2018)

Eric Hughes accepted a plea deal in 2013 after being accused of four charges related to drug conspiracy. He pled guilty to conspiracy to distribute methamphetamine and being a felon in possession of a gun in return for the dismissal of the other two charges and the withholding of information regarding previous drug felonies. For the two guilty charges, Hughes agreed to serve a term of 180 months.

In his plea deal, no reference was made to the Guidelines range, however, upon accepting the deal, the District Court noted that the deal was “compatible” with the Guideline ranges. At the time, the recommended range for Hughes’s crimes was set at 188-235 months. Such a consideration by the District Court is required before accepting any plea deal.

Upon the adoption of amendment 782 to the Sentencing guidelines, a crime like Hughes’s would have a recommended range of 151-188 months. Hughes petitioned the court for a reduction in sentence under Amendment 782. The court denied Hughes a reduction on the grounds that Hughes’s plea agreement did not reference the guideline ranges and, therefore, his sentence was not based on the guidelines in a way that would warrant a reduction.

The Court indicated that “the controlling issue here is whether a defendant may seek relief under §3582(c)(2) if he entered a plea agreement specifying a particular sentence under Federal Rule of Criminal Procedure 11(c)(1)(C).”  This is also called a “type-c” agreement.


Writing for the Court, Justice Kennedy said that “a sentence imposed pursuant to a Type-C agreement is ‘based on’ the defendant’s Guidelines range so long as that range was part of the framework the district court relied on in imposing the sentence or accepting the agreement.”


“In the typical sentencing case there will be no question that the defendant’s Guidelines range was a basis for his sentence. The Sentencing Reform Act requires a district court to calculate and consider a defendant’s Guidelines range in every case.”  


The Court went to say that “a defendant’s Guidelines range is both the starting point and a basis for his ultimate sentence” and that agreed sentences under 11(c)(1)(C) were no different.  “Although in a Type-C agreement the Government and the defendant may agree to a specific sentence, that bargain is contingent on the district court accepting the agreement and its stipulated sentence.”  Further, the court noted that “the Sentencing Guidelines prohibit district courts from accepting Type-C agreements without first evaluating the recommended sentence in light of the defendant’s Guidelines range.”  Thus, although the plea deal did not directly reference the Guidelines, they are understood to have played a role in the sentence given that the Court is required to consider the guidelines before accepting a plea deal.

For these reasons, the Supreme Court reversed the decision of the court of appeals and the case was remanded for further consideration.  No. 17–155, 584 U. S. ____ (2018)

No. 16–9493. Argued February 21, 2018—Decided June 18, 2018

Each year, district courts sentence thousands of individuals to imprisonment for violations of federal law. To help ensure certainty and fairness in those sentences, federal district courts are required to consider the advisory United States Sentencing Guidelines. Prior to sentencing, the United States Probation Office prepares a pre-sentence investigation report to help the court determine the applicable Guidelines range. Ultimately, the district court is responsible for ensuring the Guidelines range it considers is correct. At times, however, an error in the calculation of the Guidelines range goes unnoticed by the court and the parties. On appeal, such errors not raised in the district court may be remedied under Federal Rule of Criminal Procedure 52(b), provided that, as established in United States v. Olano, 507 U. S. 725: (1) the error was not “intentionally relinquished or abandoned,” (2) the error is plain, and (3) the error “affected the defendant’s substantial rights,” Molina-Martinez v. United States, 578

  1. S. ___, ___. If those conditions are met, “the court of appeals should exercise its discretion to correct the forfeited error if the error ‘ “seriously affects the fairness, integrity or public reputation of judicial proceedings.” ’ ” Id., at ___. This last consideration is often called Olano’s fourth prong. The issue here is when a Guidelines error that satisfies Olano’s first three conditions warrants relief under the fourth prong.


Petitioner Florencio Rosales-Mireles pleaded guilty to illegal reentry into the United States. In calculating the Guidelines range, the Probation Office’s presentence report mistakenly counted a state misdemeanor conviction twice. As a result, the report yielded a Guidelines range of 77 to 96 months, when the correctly calculated range would have been 70 to 87 months. Rosales-Mireles did not object to the error in the District Court, which relied on the miscalculated Guidelines range and sentenced him to 78 months of imprisonment. On appeal, Rosales-Mireles challenged the incorrect Guidelines range for the first time. The Fifth Circuit found that the Guidelines error was plain and that it affected Rosales-Mireles’ substantial rights because there was a “reasonable probability that he would have been subject to a different sentence but for the error.” The Fifth Circuit nevertheless declined to remand the case for resentencing, concluding that Rosales-Mireles had not established that the error would seriously affect the fairness, integrity, or public reputation of judicial proceedings because neither the error nor the resulting sentence “would shock the conscience.”


Held: A miscalculation of a Guidelines sentencing range that has been determined to be plain and to affect a defendant’s substantial rights calls for a court of appeals to exercise its discretion under Rule 52(b)to vacate the defendant’s sentence in the ordinary case. Pp. 6–15.


(a) Although “Rule 52(b) is permissive, not mandatory,” Olano, 507

  1. S., at 735, it is well established that courts “should” correct a forfeited plain error affecting substantial rights “if the error ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings,’ ” id., at 736. Like the narrow rule rejected in Olano, which would have called for relief only for a miscarriage of justice, the Fifth Circuit’s shock-the-conscience standard too narrowly confines the extent of the court of appeals’ discretion. It is not reflected in Rule 52(b), nor in how the plain-error doctrine has been applied by this Court, which has reversed judgments for plain error based on inadvertent or unintentional errors by the court or the parties below and has remanded cases involving such errors, including sentencing errors, for consideration of Olano’s fourth prong. The errors are not required to amount to a “powerful indictment” of the system. The Fifth Circuit’s emphasis on the district judge’s “competence or integrity” also unnecessarily narrows Olano’s instruction to correct an error if it seriously affects “judicial proceedings.” Pp. 6–8.


(b) The effect of the Fifth Circuit’s heightened standard is especially pronounced in cases like this one. An error resulting in a higher range than the Guidelines provide usually establishes a reasonable probability that a defendant will serve a prison sentence greater than “necessary” to fulfill the purposes of incarceration, 18 U. S. C. §3553(a). See Molina-Martinez, 578 U. S., at ___. That risk of unnecessary deprivation of liberty particularly undermines the fairness,integrity, or public reputation of judicial proceedings in the context of a plain Guidelines error because Guidelines miscalculations ultimately result from judicial error, as the district court is charged in the first instance with ensuring the Guidelines range it considers is correct. Moreover, remands for resentencing are relatively inexpensive proceedings compared to remands for retrial. Ensuring the accuracy of Guidelines determinations also furthers the Sentencing Commission’s goal of achieving uniformity and proportionality in sentencing more broadly, since including uncorrected sentences based on incorrect Guidelines ranges in the data the Commission collects could undermine the Commission’s ability to make appropriate revisions to the Guidelines. Because any exercise of discretion at the fourth prong of Olano inherently requires “a case-specific and fact-intensive” inquiry, Puckett v. United States, 556 U. S. 129, 142, countervailing factors may satisfy the court of appeals that the fairness, integrity,and public reputation of the proceedings will be preserved absent correction. But there are no such factors in this case. Pp. 8–11.


(c) The Government and dissent maintain that even though the Fifth Circuit’s standard was inaccurate, Rosales-Mireles is still not entitled to relief. But their arguments are unpersuasive. They caution that granting this type of relief would be inconsistent with the Court’s statements that discretion under Rule 52(b) should be exercised “sparingly,” Jones v. United States, 527 U. S. 373, 389, and reserved for “exceptional circumstances,” Meyer v. Kenmore Granville Hotel Co., 297 U. S. 160. In contrast to the Jones remand, however, no additional jury proceedings would be required in a remand for re-sentencing based on a Guidelines miscalculation. Plus, the circumstances of Rosales-Mireles’ case are exceptional under this Court’s precedent, as they are reasonably likely to have resulted in a longer prison sentence than necessary and there are no countervailing factors that otherwise further the fairness, integrity, or public reputation of judicial proceedings.


The Government and dissent also assert that Rosales-Mireles’ sentence is presumptively reasonable because it falls within the corrected Guidelines range. But a court of appeals can consider a sentence’s substantive reasonableness only after it ensures “that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range.” Gall v. United States, 552 U. S. 38, 51. If a district court cannot properly determine whether, considering all sentencing factors, including the correct Guidelines range, a sentence is “sufficient, but not greater than necessary,” 18 U. S. C. §3553(a), the resulting sentence would not bear the reliability that would support a“presumption of reasonableness” on review. See 552 U. S., at 51. And regardless of its ultimate reasonableness, a sentence that lacks reliability because of unjust procedures may well undermine public perception of the proceedings.


Finally, the Government and dissent maintain that the Court’s decision will create an opportunity for “sandbagging” that Rule 52(b) is supposed to prevent. But that concern fails to account for the realities at play in sentencing proceedings, where it is highly speculative that a defendant would benefit from a strategy of deliberately forgoing an objection in the district court, with hopes of arguing for reversal under plain-error review later. Pp. 12–14.


SOTOMAYOR, J., delivered the opinion of the Court, in which ROBERTS,

  1. J., and KENNEDY, GINSBURG, BREYER, KAGAN, and GORSUCH, JJ., joined. THOMAS, J., filed a dissenting opinion, in which ALITO, J., joined.

United States v. Fleming, No. 17-3954

Fleming was convicted of possessing cocaine with intent to distribute.  His total offense level was 21, and his criminal history category was II.  He was thought to be a career offender, but his priors did not qualify. His range of punishment was 41 to 51 months, but his mandatory minimum was 60 months.  


At the beginning of the hearing the district court provided the parties with copies of a local news article that had been published on Cleveland.com about an Ohio State report documenting an increase in overdose deaths in the state.  The article focused on opiod overdoses mainly, only mentioning cocaine briefly and only in connection with opioids. The article was a little over 200 words. The article observed that “ there are indications that cocaine is increasingly being used with fentanyl and other opiates,” and that 80.2% of all cocaine overdose deaths in 2016 also involved an opiate.  


There was no suggestion that there would be a variance at the beginning of the hearing or that the court was considering one.  Both the government and the defense made arguments and asked a sentence of 60 months. Neither side mentioned the article or community harm by opioids.  


The court varied upward and imposed a sentence of 120 months in prison.  The court said that “the Guidelines were not ‘sufficient to address the kind of issues that we’re now having with this type of trafficking in these large amounts of cocaine.’”  The district court said that the article was “[i]n large part . . . some indication of why long, lengthy sentences are necessary to try and deter” cocaine trafficking.” The court made no reference to Fleming’s near-status as a career offender.  Fleming appealed stating that his sentence was procedurally and substantively unreasonable.


The court noted that a sentence can be procedurally unreasonable when “the facts or issues on which the district court relied to impose a variance came as a surprise and [the defendant’s] presentation to the court was prejudiced by the surprise.”  The court also said that the reliance on information from the article from Clevelnad.com was a surprise and prejudicial to Fleming’s sentencing presentation and as such the sentence was procedurally unreasonable. Fleming’s case was possession of cocaine, not the opioids that were discussed in the article.  Plus there was no evidence of opioids in his case.


The court also noted that “the weight the court ultimately assigned to [unexpected] considerations” may contribute to the surprise.  In this case, the court clearly stated that the article was important to the decision. Fleming’s inability to contest the veracity or relevance was part of the prejudice:  He was not able to test the veracity or relevance of the information in the article because it was given to him at the beginning of the hearing.


Further, although this was presented to the parties at the beginning of the sentencing hearing they didn’t know how it was going to be used until after counsel made his argument.  


The government claimed that the plain error doctrine applied to this case.  Plain error is “(1) error (2) that was obvious or clear, (3) that affected [his] substantial rights and (4) that affected the fairness, integrity, or public reputation of the judicial proceedings.”


The court stated that the case was error for the reasons already stated.  The court stated that it was obvious because he district court should have realized that the Cleveland.com article contained information that the parties might reasonably not have anticipated would be relevant. The district court should also have been aware that the structure of the sentencing hearing—in which the parties were given the article only at the start of the hearing, the underlying state report was not provided at all, and the district court did not explain why the article was relevant until after the parties’ arguments—would prevent Fleming from commenting on that information in a meaningful way.”  


The court also said that Fleming’s substantial rights were affected.  “A sentencing error affects a defendant’s substantial rights when there is a reasonable probability that, but for the error, she would have received a more favorable sentence.”  If the judge had given notice of the court’s intent to use the, article then counsel would have been able to persuade that the article was unreliable.


The Court determined that the error “affected the fairness, integrity, or public reputation of the judicial proceedings.”  because “Fleming may serve an additional five years in prison based on potentially unreliable and extraneous information that was interjected into the proceedings in a way that ensured no meaningful adversarial testing.”  


Because the court determined that the case was procedurally unreasonable by a plain error standard the court determined that it was not necessary to consider substantive unreasonableness.  


Fleming also asked that the case be reassigned to a different judge on remand but the court indicated that was not justified in the record.  The court uses three factors to determine whether reassignment is warranted:


(1) whether the original judge would reasonably be expected to have substantial difficulty in putting out of his or her mind previously expressed views or findings;

(2) whether reassignment is advisable to preserve the appearance of justice; and

(3) whether reassignment would entail waste and duplication out of proportion to any gain in preserving the appearance of fairness.


Fleming said that reassignment of the case to a different judge was necessary because the judge stated that Fleming had good fortune in avoiding career offender status and that showed that the judge was predisposed to giving Fleming a higher sentence.  However, the district judge also noted that he could not and would not consider Fleming’s “close call” in escaping the career offender enhancement against him. And while Fleming also points out that the Judge indicated the strong likelihood that Fleming would qualify as a career offender, that was before it was determined that he was not a career offender.  Thus the Circuit court declined to hold that Fleming’s case should be reassigned to a different Judge.


The Sixth Circuit vacated the sentence and remanded the case for resentencing.  No. 17-3954

In United States of America vs. Ballard, No. 17-427 CR, 2018 WL 1357392, the Second Circuit vacated and remanded a case for a new trial after the prosecutor used improper argument in their summation.

Ballard was charged with trafficking minors, coercion and enticement to engage in interstate travel for illegal sexual activity. In the government’s rebuttal, the prosecutors said the defense theory of the trial was a “government frame-up.” This was a serious mischaracterization of the defense’s argument and the court said in front of the jury that they “didn’t hear” the defense counsel say that the police had framed Ballard. Ballard asked for a motion for new trial under Rule 33, but was denied because the district court observed that the prosecutor’s remarks were a response to an allegation by the defense that one victim was encouraged to lie by an investigator.

Ballard also complained because the government insinuated that it had more evidence than what they were allowed to offer in the trial. The defense objected, and the court said:

“Well, I’m not sure if it is [improper] or not. It certainly is the law. There’s an item of evidence that people are permitted to bring into this Court and get on the stand and ask questions and put that information out to the jury, but there are rules to say there’s some evidence you can’t. So, you have to decide the case based on the proof you heard, not on something you didn’t hear or wasn’t presented to you here in the courtroom. If you do that, you’ll be okay.”

This was improper. The Court did not instruct the jury that they should not assume that such evidence exists or that the jury can find reasonable doubt from a lack of evidence regardless of why the evidence was lacking. Further, because this was after summation arguments (so right at the very end), the defense did not have the chance to clarify the burden of proof, and the jury did not get further instruction as to the burden of proof.

The court considered errors together and found them both to be improper. The court further noted that vacating a conviction based on substantially improper remarks when a defendant’s guilt is established by overwhelming evidence. But that was not the case here given that the government’s evidence was the testimony of the alleged victims. There were also several problems in their credibility as there were several times where there were great contradictions. In a close case like this where the government has made improper summation arguments this, vacating the sentence is appropriate.

The Second Circuit vacated the sentence and remanded the case back to the district court for a new trial. No. 17-427-CR, 2018 WL 1357392.

The law firm of Jeremy Gordon has been practicing federal criminal appeals and post-conviction law since 2012. We have had successful outcomes in more than 60 cases in the past three years. Our entire staff is committed to providing excellent service to our clients and their families. We encourage you to contact our office today to visit with us on how we might be able to help you or your loved one get the representation they deserve.

In United States vs. Aminov. No. 17-1703, the Third Circuit reversed a sentence based on plain error.

Aminov was sentenced in 2011 for aiding and abetting in the production of a document without lawful authority. The PSI recommended a Sentencing Guidelines range of 0-6 months instead of the government’s suggested range of 12-16 months. Aminov was sentenced to 6 months imprisonment followed by 3 years of supervised release. He was accused of healthcare fraud while on supervised release and sentenced to 15 months imprisonment. He was then charged with violation of supervised release. He asked for a concurrent sentence, or in the alternative, a consecutive sentence at the low end of the guideline range. The government sought a consecutive sentence at the high end of the guideline range stating in the sentencing memorandum that “[a]t his original sentencing, in this case, the government advocated for a term of imprisonment in the range of 10 to 16 months. Judge Shapiro imposed a sentence below the government’s recommended range. This was repeated in their sentencing closing arguments. The court gave a sentence at the top of the guideline range and said “I am looking back at what Judge Shapiro saw in you and she imposed a below-guideline range sentence, significantly below guideline range sentence. And in return for her doing that, you immediately went back out and engaged in further similar criminal conduct.” No objection was made to this statement.

Aminov appealed his sentence. It was subject to plain error analysis where he must show:

(1) an error; (2) that is plain or obvious; (3) that affects the defendant’s substantive rights; and (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.

The Third Circuit said that plain error was established here because the range of punishment was not 10-16 months like the prosecutor said, but 0-6 months like what was in the PSI. The district court crafted its sentence in consideration of incorrect facts and committed plain error. It affected the outcome of the district court proceedings because the district court relied on it as support for its sentencing decision and said the same. Finally, allowing a sentence to stand on incorrect information would undermine public confidence in the judicial process.

The Third Circuit vacated and remanded the sentence to the district court for resentencing. No. 17-1703

The law firm of Jeremy Gordon has been practicing federal criminal appeals and post-conviction law since 2012. We have had successful outcomes in more than 60 cases in the past three years. Our entire staff is committed to providing excellent service to our clients and their families. We encourage you to contact our office today to visit with us on how we might be able to help you or your loved one get the representation they deserve.

United States of America v. Jose Prisciliano Gracia-Cantu, No. 15-40227, 2018 WL 2068684

Gracia-Cantu pled guilty to being an alien unlawfully present in the United States after previously being deported. He also had a prior conviction for Assault Family Violence under Texas Penal Code 22.01(a)(1) and 22.01(b)(2). The presentence report recommended an eight level increase for this under 8 U.S.C. § 1101(a)(43)(F) and U.S.S.G. § 2L1.2(b)(1)(C), calling the family violence conviction an “aggravated felony.” Gracia-Cantu argued that the Texas Assault Family Violence is not a “crime of violence” under 18 USC § 16 and as such, the conviction did not qualify as an aggravated felony. The district court found that the Texas Family violence conviction was an aggravated felony under U.S.S.G. § 2L1.2(b)(1)(C), by looking at the judgment conviction that stated that the injury occurred by “striking said Maria Garcia on or about the head with an object: to wit, a can.” The district court then stated that it would require force to strike someone in the head with a can. Gracia-Cantu was sentenced to 41 months and appealed his sentence.

The Fifth Circuit began by addressing whether the family violence case applied under 18 USC § 16(a). Section 16(a) defines a crime of violence as “an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” Prior Fifth Circuit precedent held that Texas Assault Family Violence was not a crime of violence under 16(a). While the government argued that precedent had been overruled by United States v. Castleman, 134 S. Ct. 1405 (2014), and Voisine v. United States, 136 S. Ct. 2272 (2016), the Fifth Circuit disagreed. The Fifth Circuit held that the government’s argument had no merit because of the “rule of orderliness,” which states that one panel of the court may not overrule another unless a “Supreme Court decision ‘expressly or implicitly’ overrules one of our precedents.”  Further, this was confirmed in cases after Castleman, such as United States v. Reyes-Contreras, 882 F.3d 113, 123 (5th Cir. 2018). Therefore, the Fifth Circuit’s prior precedent stood and Gracia-Cantu’s conviction was not a crime of violence under 16(a).

Next the court looked at whether the crime of violence was a crime under § 16(b). The Fifth Circuit noted that § 16(b) was unconstitutionally vague after the Supreme Court’s decision in Sessions vs. Dimaya, 138 S. Ct. 1204 (2018). But since this was not objected to at the time of sentencing it was subject to plain error review. “To obtain relief under plain-error review, an appellant must show: (1) an error or defect that was not affirmatively waived; (2) the legal error is clear or obvious; (3) the error affected the appellant’s substantial rights; and (4) if the first three prongs are satisfied, that the court should exercise its discretion to correct the error because it “seriously affects the fairness, integrity or public reputation of judicial proceedings.”

Dimaya established that it is error to use § 16(b) to show that an offense is a crime of violence. But there were cases that came out before this that would have kept this argument from succeeding at that time. The first two prongs having been met, the court then looked to see if this violated his substantial rights. The court determined that it did because his sentence of 41 months was 11 months above the applicable guidelines for his case without the eight-level increase for the crime of violence. This satisfied the third prong. The court then determined that the disparity between the imposed sentence and the applicable guidelines range can warrant the court’s exercise of discretion. Further, the fact that the higher sentence came from applying a statute declared unconstitutional void by the Supreme Court while the claim was on direct appeal also was considered. The court looked at the totality of the circumstances and determined that the error should be corrected.

The Fifth Circuit vacated Gracia-Cantu’s sentence and remanded the case back down for resentencing. No. 15-40227, 2018 WL 2068684

The law firm of Jeremy Gordon has been practicing federal criminal appeals and post-conviction law since 2012. We have had successful outcomes in more than 60 cases in the past three years. Our entire staff is committed to providing excellent service to our clients and their families. We encourage you to contact our office today to visit with us on how we might be able to help you or your loved one get the representation they deserve.

United States v. Bethea, Seventh Circuit, No. 17-3468, 2018 WL 1959638

Bethea was charged with using fraudulently obtained credit cards to purchase merchandise at retailers. He had a combined guilty plea and sentencing hearing. The judge was in his courtroom in Madison, WI. Bethea was in Milwaukee because of his health issues and limited mobility. The judge sentenced Bethea to 21 months imprisonment, which is at the bottom of his guideline range. Bethea appealed on the basis that his plea via video conference could not be taken.

The court noted that Federal Rule of Criminal Procedure 43 governs that “the defendant must be present at … the initial appearance, the initial arraignment, and the plea.” The court found while there are exceptions to this, none of them applied here. The court also found that while other circuit courts haven’t answered this question, four circuit courts have held that Rule 43 requires the judge and the defendant to be there. Further, they pointed out that several circuits have indicated that there were intangible benefits to the judge and defendant being physically in the courtroom including the Sixth, Fourth, Third, Seventh, and the Tenth Circuits, which hold that this is per se error, meaning that automatic reversal should be granted.

The Seventh Circuit Vacated the Judgment of the District Court and remanded the case. No. 17-3468, 2018 WL 1959638

The law firm of Jeremy Gordon has been practicing federal criminal appeals and post-conviction law since 2012. We have had successful outcomes in more than 60 cases in the past three years. Our entire staff is committed to providing excellent service to our clients and their families. We encourage you to contact our office today to visit with us on how we might be able to help you or your loved one get the representation they deserve.