Supreme Court Rehaif vs. US Felon Knowingly in Possession

Why is the Rehaif Case Important?

The Rehaif case may be significant because of its consequences.  It is possible that there will now be a flood of litigation from defendants who will claim that the status element of the crime was not proven by the Government in their own cases.  It is important to note that being illegally in the U.S. is only one of nine different statuses that make possession of a gun illegal.  Another status is being a convicted felon.  Thus, it is conceivable that many people may try to re-open their cases, claiming that they did not know that they were felons when they were in possession of a gun.  If you believe that this ruling may have a bearing on your case or that of a loved one, reach out to us and schedule a complementary call to discuss.

Backstory on the Rehaif v. U.S. Case

Hamid Rehaif came to the United States on a student visa.  He enrolled at the Florida Institute of Technology.  He did very poorly in school and was dismissed for low grades.  The school told him that his “immigration status” would be terminated unless he transferred to a different university or left the country.

Subsequently, Rehaif visited a firing range, shooting two firearms.  The Government learned of Rehaif’s target practice and charged him criminally with possessing firearms as an alien unlawfully in the United States. Rehaif was tried before a jury.

At the close of his trial, the judge instructed the jury that the Government was not required to prove that Rehaif knew that he was illegally in the United States. Rehaif was then convicted and sentenced to 18 months in prison.

On appeal, Rehaif argued that the judge’s instruction to the jury was incorrect, and that the Government needed to prove that he knew he was illegally in the country.  The Eleventh Circuit Court of Appeals, however, rejected Rehaif’s argument and affirmed his conviction and sentence.  Rehaif then appealed to the Supreme Court, which agreed to hear the case.

The Issue Before the Supreme Court

As noted in the title above, Mr. Rehaif’s case turns on the scope of the word “knowingly.”  The law under which Rehaif was charged states that it is unlawful for aliens who are illegally in the United States to possess firearms, and that a person can be fined or imprisoned up to 10 years if he or she “knowingly violates” the law.

Based on that law, the question becomes:  Does the Government need to prove only that the accused knew he was in possession of a firearm?  Or, does the Government need to prove that the accused knew that he possessed a firearm and that he knew he was illegally in the country?

The Majority Opinion

A seven-Justice majority held that the Government must prove both that a person knew he possessed a firearm and that he knew he was illegally in the country when he possessed the firearm.  Justice Breyer wrote the opinion for the majority.  Justice Breyer began his analysis by stating that the determination of what the Government must prove in a federal criminal case is a question of congressional intent, i.e., what Congress intended to be the elements of a crime.

Accordingly, when looking for congressional intent, the Court begins with a long-standing presumption in favor of “scienter.”  In other words, it is presumed that Congress intends to require a criminal defendant have the required mental state (or state of mind) for each element that “criminalizes otherwise innocent conduct.”

The text of the law in this case is that it is a crime for any person “being an alien illegally or unlawfully in the United States” to “possess in or affecting commerce, any firearm or ammunition.”  Thus, the elements of the crime are as follows:

  1. A status element – “being an alien illegally or unlawfully in the United States;”
  2. A possession element – to “possess;”
  3. A jurisdiction element – “in or affecting commerce;”
  4. A firearm element – “any firearm or ammunition.”

Apart from the jurisdiction element, the presumption of “scienter” should apply to each element.  Thus, to be guilty of a crime committed “knowingly,” a person must know the status element, the possession element, and the firearm element.  In short, the Government must prove both that Rehaif knew he was illegally in the country andthat he possessed a firearm.

In this case, the majority opinion points out that possessing a gun can be entirely innocent conduct.  What makes Rehaif’s conduct criminal is the status element, the fact that he was illegally in the country while in possession of a gun.  Without Rehaif knowing his status, he may lack the state of mind necessary to make his conduct wrongful.

During arguments before the Court, the Government raised the common maxim that “ignorance of the law is no defense.”  Thus, the Government maintained that defendants like Rehaif do not need to know their own status to be guilty of a crime.

The Court majority, however, was not persuaded by that argument.  There is a difference, according to the majority, between having the required mental state for the elements of a crime yet being unaware of a law forbidding the conduct, and actually being unaware of a fact that would make something a crime.

In sum, the trial judge’s instruction was incorrect, and Rehaif’s case was reversed and remanded for further proceedings.

Dissenting Opinion

Justice Alito wrote a dissenting opinion joined by Justice Thomas. Justice Alito was particularly troubled by the fact that the criminal statute in Rehaif’s case has been used to prosecute thousands of defendants over the course of 30 years.  The majority opinion, says Justice Alito, now puts those prosecutions in question.

Questioning the fact that the Court agreed to hear the case in the first place, Justice Alito stated that there was no lower court conflict that needed to be resolved and no indication of any serious injustice as a result of the consistent application of the law by the lower court.

Justice Alito was sure to mention that Rehaif was not as innocent as the majority would lead us to believe.  It appears that Rehaif checked into a hotel, demanded that he have a room on the eighth floor, facing the airport.  Also, he frequented a firing range.

Finally, Justice Alito noted that the majority’s opinion was not based on the statutory text of criminal law in question.  Rather, Justice Alito says that the majority relies on “its own guess about congressional intent.  And the intent that the majority attributes to Congress is one that Congress almost certainly did not harbor.”

Conclusion

The Rehaif case may be significant because of its consequences.  It is possible that there will now be a flood of litigation from defendants who will claim that the status element of the crime was not proven by the Government in their own cases.  It is important to note that being illegally in the U.S. is only one of nine different statuses that make possession of a gun illegal.  Another status is being a convicted felon.  Thus, it is conceivable that many people may try to re-open their cases, claiming that they did not know that they were felons when they were in possession of a gun.

Elderly Offender Home Confinement

If your loved one qualifies for Compassionate Release or for the Elderly Offender Program,
please reach out to our office and schedule a complementary call to discuss how we might be able to help you. 

As you may remember, back on December 21, 2018 President Trump signed the FIRST STEP Act into law.  The FIRST STEP Act had many provisions in it, including the following in Section 602:

SEC. 602. HOME CONFINEMENT FOR LOW-RISK PRISONERS.

Section 3624(c)(2) of title 18, United States Code, is amended by adding at the end the following: ‘‘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.’’

This means that 18 U.S.C. 3624(c)(2) now reads like this:

(2) Home confinement authority.—

The authority under this subsection may be used to place a prisoner in home confinement for the shorter of 10 percent of the term of imprisonment of that prisoner or 6 months. 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.(emphasis added)

Our office sought a Freedom Of Information Act (FOIA) Request back in June requesting several documents. That FOIA can be found HERE.

In July, the Bureau of Prisons (BOP) responded with several pages.  Ten of those pages were a program statement about home confinement. Click HERE to view them.

WHAT IS HOME CONFINEMENT?

Page 4 of the program statement indicates that “Home detention has the same meaning given the term in the Federal Sentencing Guidelines as of April 9, 2008, and includes detention in a nursing home or other residential long-term care facility.”

The United States Sentencing Guidelines, § 5F1.2 note 1, states that “Home detention” means a program of confinement and supervision that restricts the defendant to his place of residence continuously, except for authorized absences, enforced by appropriate means of surveillance by the probation office. When an order of home detention is imposed, the defendant is required to be in his place of residence at all times except for approved absences for gainful employment, community service, religious services, medical care, educational or training programs, and such other times as may be specifically authorized.

In the Bureau of Prisons, an inmate can be sent “home” for the end of their sentence to reacclimate back into society, find a job and get ready to serve whatever term of supervised release they have.  The maximum amount of time that a person can spend on home confinement is six months or ten percent of their sentence, whichever is less.  Generally speaking, the Bureau of Prisons is responsible for how much home confinement a person actually gets.

What is the Elderly Offender Home Detention Program?

The Elderly Offender Home Detention Program is a program by which an “Eligible Elderly Offender” or an “Eligible Terminally Ill Offender” can go home for the rest of their sentence.

An “Eligible Elderly Offender” is defined as an offender in the custody of the BOP who…

  1. Is not less than 60 years of age;
  2. Is serving a term of imprisonment that is not life imprisonment based on conviction for an offense or offenses that do not include any crime of violence (as defined in section 16 of Title 18), sex offense (as defined in section 20911(5) of this title), offense described in section 2332b(g)(5)(B) of Title 18, or offense under chapter 37 of Title 18, and has served 2⁄3 of the term of imprisonment to which the offender was sentenced;
  3. Has not been convicted in the past of any Federal or State crime of violence, sex offense, or other offense described in paragraph (2), above.
  4. Has not been determined by the Bureau, on the basis of information the Bureau uses to make custody classifications, and in the sole discretion of the Bureau, to have a history of violence, or of engaging in conduct constituting a sex offense or other offense described in paragraph 2 above;
  5. Has not escaped, or attempted to escape, from a Bureau of Prisons institution (to include all security levels of Bureau facilities);
  6. With respect to whom the Bureau of Prisons has determined that release to home detention under this section will result in a substantial net reduction of costs to the Federal Government; and
  7. Has been determined by the Bureau to be at no substantial risk of engaging in criminal conduct or of endangering any person or the public if released to home detention.

NOTE: The 6th and  7th criteria are solely up to the Bureau of Prisons.

An Eligible Terminally Ill Offender is an offender in the custody of the BOP who:

  1. Is serving a term of imprisonment based on conviction for an offense or offenses that do not include any crime of violence (as defined in section 16(a) of Title 18, United States Code), sex offense (as defined in section 111(5) of the Sex Offender Registration and Notification Act (34 U.S.C. § 20911(5))), offense described in section 2332b(g)(5)(B) of Title 18, United States Code, or offense under chapter 37 OM 001-2019 4/4/2019 4 of Title 18, United States Code;
  2. Satisfies the criteria specified in paragraphs 3 through 7 included in the Eligible Elderly Offender definition, above; and
  3. Has been determined by a medical doctor approved by the Bureau, i.e. Clinical Director of the local institution, to be:
    • in need of care at a nursing home, intermediate care facility, or assisted living facility, as those terms are defined in section 232 of the National Housing Act (12 U.S.C. § 1715w); or
    • diagnosed with a terminal illness

THE BOP’S RECOGNITION OF THE IMPORTANCE OF HOME CONFINEMENT

Page two of this document has the following at the top of the page:

“The Bureau interprets the language to refer to inmates that have lower risks of reoffending in the community, and reentry needs that can be addressed without RRC placement. The Bureau currently utilizes home confinement for these inmates. Accordingly, staff should refer eligible inmates for the maximum amount of time permitted under the statutory requirements.”

FURTHER POLICY CONCERNING THE ELDERLY OFFENDER PROGRAM

Pages 2-5 give more information about the Elderly Offender Home Confinement Program.

The scope and purpose of the pilot is explained, the placement of “some or all eligible elderly offenders and eligible terminally offenders” to home detention “upon written request from either the Bureau staff, or an eligible elderly offender or eligible terminally ill offender.”

Under paragraph (c), the waiver indicates that “the Bureau is authorized to waive the requirements of section 3624 of Title 18 [home confinement for the shorter of 10 percent of the term of imprisonment of that prisoner or 6 months] as necessary to provide for the release of some or all eligible elderly offenders and eligible terminally ill offenders from Bureau facilities to home detention for the purposes of the pilot program.” So in other words, an eligible elderly offender is possible to spend more than 6 months or 10 percent of their sentence on home confinement if selected for this program.

Under Paragraph (d), it is explained that “[a] violation by an eligible elderly offender or eligible terminally ill offender of the terms of home detention (including the commission of another Federal, State, or local crime) shall result in the removal of that offender from home detention and the return of that offender to the designated Bureau institution in which that offender was imprisoned immediately before placement on home detention as part of this pilot, or to another appropriate Bureau institution, as determined by the Bureau.”

From there the program statement gives the definition of eligible elderly offender and eligible terminally ill offender as well as the procedure for determining who is eligible under this program.

For Eligible Elderly Offenders, a BP-A0210, Institutional Referral for CCC Placement, will be completed. Staff should refer all inmates meeting criteria (1) through (5) in the definition of Eligible Elderly Offender, above. Reentry Services Division (RSD) staff will determine if the inmate meets criteria (6) and (7) under the definition. A clear annotation will be made on the referral packet that “This inmate is being referred for Home Confinement placement under the provisions contained in the First Step Act for placement of eligible elderly offenders and eligible terminally ill offenders.”

For Eligible Terminally Ill Offenders, to include debilitated offenders that may need placement in nursing home, intermediate care facility, or assisted living facility, institution staff will refer the inmate for a Reduction in Sentence (RIS) under Program Statement Compassionate Release/Reduction in Sentence: Procedures for Implementation of 18 U.S.C. §§ 3582 and 4205(g). If not appropriate for a RIS, the Office of General Counsel will provide RSD the RIS packet for consideration under this pilot.

From there, the program statement goes into the addendum.  Most notable is the use of 18 U.S.C. § 16, including 16(b) even though it was recently struck down in Dimaya vs. Sessions.

 

What does any of this mean?  How can this help my loved one possibly get out of prison?

  1. Inmates and their families should seek home confinement if the inmate’s needs would be better suited at homeThe bottom of Page 1 and the top of Page 2 state:

    “The Bureau interprets the language to refer to inmates that have lower risks of reoffending in the community, and reentry needs that can be addressed without RRC placement. The Bureau currently utilizes home confinement for these inmates. Accordingly, staff should refer eligible inmates for the maximum amount of time permitted under the statutory requirements.”

    If you and your loved ones feel that they meet those requirements then I strongly suggest that your loved one reach out to their unit team and ask to be referred to the maximum amount of time under the law (6 months or 10% of your sentence whichever is less). You would want to provide information as to why your needs would be better met outside of a halfway house rather than inside.

  2. Inmates should seek the maximum amount of Home Confinement regardless of RDAP.There is no mention of halfway house or RDAP or anything like that in the above program statement.  We suggest asking for a combination of the two in such a manner that gets your loved one the maximum amount of time possible outside so that they can get back on their feet.  In the same vein, if your loved one has completed RDAP and as such, their halfway house time is capped at some number, I would consider asking for the maximum amount of home confinement.
  3. There are no known limits on the number of inmates admissible into the Elderly Offender Home Detention Program 

    The Elderly Offender Home Confinement Program is not bound by the 10% or 6 months rule in 18 USC 3624(c)(2).  Furthermore, the program statement discusses the placement of “some or all eligible elderly offenders and eligible terminally offenders” to home detention.  So as of now there are no known limits to the amount of eligible elderly offenders that can take part in the program.

If your loved one qualifies for Compassionate Release or for the Elderly Offender Program, please reach out to our office and schedule a complementary call to discuss how we might be able to help you.

Jeremy Gordon, Esq., is an expert legal practitioner specializing in all types of federal criminal defense and post-conviction relief cases. We have a rich history of success achieving favorable outcomes for our clients.  If you need top-notch legal representation, be sure to contact Jeremy for a free consultation at 844-ATTY-NOW.  

Davis vs. United States 924(c)(3)(b)

United States v Davis was handed down on June 24, 2019

As many of you have heard, the Supreme Court has finally decided the much-anticipated case of United States v. Davis, No. 18-431. In Davis, the Court held that the residual clause of 18 U.S.C. 924(c)(3)(B) is unconstitutionally vague in the wake of Johnson v. United States, 135 S.Ct. 2551 (2015) and Sessions v. Dimaya, 138 S.Ct. 1204 (2018).

While this is great news for many, I know that a lot of you have plenty of questions about Davis. I want to take this opportunity to discuss what exactly the holding in Davis means, how we got here, and what it might mean for your individual case.

How Did We Get Here?

Back in 2015, the Supreme Court held in Johnson v. United States, 135 S.Ct. 2551 (2015), that the residual clause of 18 U.S.C. 924(e)(2)(B) was unconstitutionally vague and a violation of Due Process. Under the Armed Career Criminal Act (“ACCA”), a “violent felony” was defined as a crime punishable by imprisonment for a term exceeding one year that (i) has an element the use, attempted use, or threatened use of physical force against the person of another; or (2) is burglary, arson, extortion, involves use of explosive, or otherwise involves conduct that presents a serious potential risk of physical injury to another. 18 U.S.C. 924(e)(2)(B)(i)-(ii). The language found to be void for vagueness by the Supreme Court was the clause “or otherwise involves conduct that presents a serious potential risk of physical injury to another.”

While Johnson was focused primarily on the language of section 924(e), many noticed the inescapable similarities between the ACCA and other criminal statutes. One such example was the definition “crime of violence” in 18 U.S.C. 16. Under that statute, a crime of violence is defined as (a) an offense that has an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. 18 U.S.C. 16(a)-(b).

Shortly after Johnson, the Ninth Circuit held that 18 U.S.C. 16(b) was equally unconstitutionally vague. The case went up to the Supreme Court and the Court held that a plain application of Johnson to 18 U.S.C. 16 required a finding that 16(b) is also void for vagueness. Dimaya v. Sessions, 138 S.Ct. 1204 (2018).

Following Dimaya, other courts noticed the similarities between 18 U.S.C. 16 and 18 U.S.C. 924(c)(3). Under the latter statute, a “crime of violence” is defined as (A) having as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. 18 U.S.C. 924(c)(3)(A)-(B). Due to its nearly identical wording, some courts of appeals held that 18 U.S.C. 924(c)(3)(B) was unconstitutional in light of Johnson and Dimaya. However, the First, Second and Eleventh Circuits disagreed, finding that 924(c)(3)(B) is distinguishable because it requires a “case-specific” approach as opposed to the categorical approach.

The Supreme Court rejected this notion in Davis, finding that 18 U.S.C. 924(c), like 924(e) and 16, requires the use of the categorical approach. Accordingly, the Court has held that the language under 18 U.S.C. 924(c)(3)(B) (“that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense”) can no longer stand.

How Does United States vs. Davis Work?

Now that Davis has finally been decided, what does that mean for individuals with a 924(c) conviction?

First, Davis did not rule the entire portion of the 924(c) statute unconstitutional. Only the residual clause under 924(c)(3)(B) is affected. This means that those with a 924(c) conviction that is in furtherance of a drug trafficking crime are unaffected by Davis. Likewise, if the crime of violence underlying the 924(c) conviction “has as an element the use, attempted use, or threatened use of physical force against the person or property of another,” then that, too, is not impacted by Davis.

Whether a crime of violence falls under subsection (A) or (B) of 924(c)(3) is critical in determining whether an individual may receive relief under Davis. An example of a crime falling under the now-void subsection (B) would be conspiracy to commit Hobbs Act robbery, as discussed in Davis.

The next question is, how does one apply for relief under Davis? The answer all depends on the procedural posture of your case. If you are in pre-trial or pre-sentencing, you need to discuss with your attorney immediately any possible effect of Davis on your case. For appellate and post-conviction individual, I will address each separately.

What If My Case is on Direct Appeal?

If you are currently on direct appeal and raised a Johnson/Dimaya 924(c) claim, then it is possible that your case has been stayed or placed in abeyance pending a decision in Davis. Now that Davis has been decided, it may be advisable to file a letter under Federal Rule of Appellate Procedure 28(j) alerting the court of the decision. The same is true if your appeal is currently pending but the court has not ordered a stay.

Similarly, your case may be waiting on a circuit case that was stayed pending Davis. For example, many cases in the Fourth Circuit are currently placed in abeyance pending a decision in United States v. Simms, No. 15-4640. Although Simms was decided back in January, the mandate was stayed pending Davis. If your case is stayed based on a circuit case that was also stayed pending Davis, then you will need to wait for a decision in the circuit case before your appeal can move forward.

If you are looking for assistance with your appeal, please contact me at [email protected] to discuss your appeal.

What if I have filed a motion under 28 USC § 2255?

Likewise, there are many of you out there with a 2255 motion that has been stayed awaiting a decision in Davis. If that is the case, now is the time to supplement your motion with the Court’s decision.

If you have not filed a 2255 motion, but believe Davis applies to your case, please reach out to me at [email protected] to discuss your case further.

What about a 2241 motion?

For those who missed the statutory deadline to file under Johnson, a 28 U.S.C. 2241 Petition may be a viable option if Davis applies to you. However, there are quite a lot of nuances involved with a 2241 Petition. Whether you can seek 2241 relief is going to depend on the circuit law in your place of confinement, as well as a number of other factors. If you are interested in discussing the potential merits of a 2241 petition, please email me at [email protected]

What if My Appeals and Motions Have been Denied?

Sadly, there are many, many defendants who had their appeal and/or collateral motions denied because the court found that Johnson and Dimaya had no impact on 18 U.S.C. 924(c)(3)(B). Clearly, those courts were wrong. But there may now be ways to reopen your case or seek other remedies. The possibilities depend on the unique facts of your case and will need to be discussed further. But such options would include a motion to recall the mandate if an appeal was denied, or a motion for reconsideration or possibly a Fed. R. Civ. P. 60(b) motion. Again, there are factors in each case that affect the viability of certain avenues. If your appeal or motion was denied because the court found 924(c)(3)(B) to be constitutional, please contact me at [email protected] or here to discuss your loved one’s case.

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.

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.

FIRST STEP ACT EXPLAINED: TITLE ONE: RECIDIVISM REDUCTION

Section 101 and 102:  RISK ASSESSMENT AND NEEDS SYSTEM AND TIME CREDITS

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.   

FIRST STEP ACT EXPLAINED: SUPERVISED RELEASE CHANGES:

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.”

FIRST STEP ACT EXPLAINED: CERTAIN INMATES INELIGIBLE FOR TIME CREDITS

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
purpose.

‘‘(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.

FIRST STEP ACT EXPLAINED: SECTION 103:  A SUNLIGHT PROVISION

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. 

FIRST STEP ACT EXPLAINED: SECTION 104:  APPROPRIATIONS

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

FIRST STEP ACT EXPLAINED: SECTION 105:  FEDERAL CONVICTIONS ONLY: 

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

FIRST STEP ACT EXPLAINED: SECTION 106:  IMPACT ON FAITH BASED PROGRAMS

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. 

FIRST STEP ACT EXPLAINED: SECTION 107:  CREATION OF AN INDEPENDENT RESEARCH COMMITTEE

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.

FIRST STEP ACT EXPLAINED: SECTION 102:  FIXING THE GOOD TIME PROBLEM

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. 

FIRST STEP ACT EXPLAINED: Title II:  SECURE FIREARMS STORAGE

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

FIRST STEP ACT EXPLAINED: Title III:  SHACKLING OF PREGNANT WOMEN ENDED

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. 

FIRST STEP ACT EXPLAINED: TITLE IV:  SENTENCING REFORM

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. 

FIRST STEP ACT EXPLAINED: SECTION 401 ENDS MANDATORY LIFE UNDER §851 

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. 

FIRST STEP ACT EXPLAINED: SECTION 402 BROADENS THE SAFETY VALVE

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. 

FIRST STEP ACT EXPLAINED: SECTION 403 FIXES THE 924(c) PROBLEM

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. 

FIRST STEP ACT EXPLAINED: SECTION 404 RETROACTIVELY APPLIES THE FAIR SENTENCING ACT OF 2010

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 contact us to schedule a complimentary phone call

FIRST STEP ACT EXPLAINED: TITLE 5:  REAUTHORIZATION OF SECOND CHANCE ACT OF 2007

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

FIRST STEP ACT EXPLAINED: TITLE VI:  MISCELLANEOUS CRIMINAL JUSTICE

SECTION 601 MANDATES THAT INMATES BE WITHIN 500 MILES OF THEIR FAMILIES

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. 

SECTION 602 EMPHASIZES HOME CONFINEMENT

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.”

SECTION 603 ADDS TO THE FEDERAL PRISONER REENTRY INITIATIVE

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. 

SECTION 603 ADDS TRANSPARENCY TO COMPASSIONATE RELEASE AND PROVIDES OPTIONS TO PETITION THE COURT

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 707 REQUIRES OF REPORTS TO CONGRESS ON OPOIOD ABUSE STRATEGIES

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:  ENDING OF JUVENILE SOLITARY CONFINEMENT

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. 

The Law Office of Jeremy Gordon has been practicing federal criminal appeals and post-conviction law since 2012. We have had favorable outcomes in more than 70 cases in the past four 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.