Trump signing First Step Act

Hey Everyone, I wanted to let you know that the piece of legislation known as the FIRST STEP ACT has passed both the House and Senate. The FIRST STEP Act is being hailed by some as “generational criminal justice reform.”

The criminal justice reforms in the FIRST STEP Act can be grouped into two basic types of reforms: Reforms affecting prisons themselves and reforms affecting sentencing.

Per NPR, these are the reforms that affect prisons:

-Provides more access to rehabilitation and training programs that are aimed at helping prepare prisoners for life after their release.

-Certain prisoners would be eligible for incentives if they participate, including credits that would allow them to spend up to a year of their sentences in facilities like halfway houses or at home under supervision.

-Makes it against the law to use restraints on pregnant inmates, unless they are an immediate threat to themselves or others or a flight risk.
Requires that prisoners be incarcerated no more than 500 miles from their primary residence.

Per NPR, these are the reforms that affect sentencing:

-Ends automatic life sentences under the three-strike penalty for drug felonies. Instead of life, a third strike would now be a mandatory 25-year sentence. The mandatory sentence for a second offense would be reduced to 15 years compared to 20 years now (this portion of the ACT is not retroactive).

-Expands the “safety valve” that allows judges to avoid imposing mandatory minimum sentences in certain cases.

-Addresses prisoners who were sentenced before laws were changed in 2010 to lessen disparities between the penalties for crack cocaine and powder cocaine. It would allow these prisoners to petition the courts to review their cases in light of the updated law.

With both the House of Representatives and the Senate approving the act, it now goes to the President’s Desk. President Trump has already voiced his approval for the measure.

I will be preparing an FAQ for the FIRST STEP Act as it stands shortly.

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.

There has been a lot in the news about Congress and tax cuts and healthcare, but there are four bills that I am watching that specifically do with criminal justice reform. I have been reading that there will be a “legislative sprint” this upcoming week and I am hopeful that some of the bills covered here will be part of that sprint.

H.R.64 – Federal Prison Bureau Nonviolent Offender Relief Act of 2017

The Federal Prison Bureau Nonviolent Offender Relief Act of 2017 was introduced by Shelia Jackson Lee (D-TX) on 1/3/2017. The CRS* has summarized this bill as follows:

This bill amends the federal criminal code to require the Bureau of Prisons to release early an offender who has completed at least half of his or her prison sentence if such offender has: (1) attained age 45, (2) committed no violent offenses, and (3) received no institutional disciplinary violations.

On January 12, 2017 this bill was referred to the Subcommittee on Crime, Terrorism, Homeland Security, and Investigations. According to https://www.govtrack.us, this bill has been introduced each session since 2003.

S.1917 – Sentencing Reform and Corrections Act of 2017

The Sentencing Reform and Corrections Act of 2017 was introduced by Chuck Grassley (R-IA) and several other sponsors on October 4, 2017.

There is no official CRS summary but a summary by the Senate Judiciary Committee Indicates that this bill does the following:

-Reforms & Targets Enhanced Mandatory Minimums for Prior Drug Felons

-Increases Judicial Discretion for Sentencing of Certain Nonviolent Offenders

-Reforms Enhanced Mandatory Minimums & Sentences for Firearm Offenses

-Creates New Mandatory Minimums for Interstate Domestic Violence & Certain Export Control Violations, and New Mandatory Enhancement for Trafficking of Fentanyl-Laced Heroin

-Applies the Fair Sentencing Act and Certain Sentencing Reforms Retroactively

-Establishes Recidivism Reduction Programs to Facilitate Successful Reentry

-Limits Solitary Confinement for Juveniles in Federal Custody & Improves Accuracy of Federal Criminal Records

-Provides for a Report and Inventory of All Federal Criminal Offenses

-Creates National Criminal Justice Commission to undertake a comprehensive review of the criminal justice system, which has not been done in more than 50 years.

On October 4, 2017, this bill was referred to the Senate Judiciary Committee.  According to https://www.govtrack.us, a similar bill was introduced in October 2015.

S.1933 – Smarter Sentencing Act of 2017

The Smarter Sentencing Act of 2017 was introduced by Mike Lee (R-UT) and others On October 2, 2017.

There is no official CRS summary but in a press release on his webpage, Senator Lee Indicates the following:

“Our current federal sentencing laws are out of date, they are often counterproductive, and in far too many cases they are unjust,” said Senator Lee. “The Smarter Sentencing Act is a commonsense solution that will greatly reduce the financial and, more importantly, the human cost imposed on society by the broken status quo. The SSA will give judges the flexibility and discretion they need to impose stiff sentences on the most serious drug lords and cartel bosses while enabling nonviolent offenders to return more quickly to their families and communities.”

On October 5, 2017 this bill was referred to the Committee on the Judiciary. According to https://www.govtrack.us, a similar bill was introduced in February of 2015.

S.1902 – Mens Rea Reform Act of 2017

The Mens Rea Reform Act of 2017 was introduced by Orrin Hatch (R-UT) and others on October 2, 2017.

There is no official CRS summary but in a press release on his webpage, Senator Hatch Indicates the following:

“…[the] Mens Rea Reform Act of 2017, would set a default intent standard for all criminal laws and regulations that lack such a standard. This legislation would ensure that courts and creative prosecutors do not take the absence of a criminal intent standard to mean that the government can obtain a conviction without any proof a guilty mind.”

The bill’s title, written by its author, says “A bill to specify the state of mind required for conviction for criminal offenses that lack an expressly identified state of mind, and for other purposes.”

On October 2nd 2017, this bill was referred to the committee on the Judiciary. According to www.govtrack.us, a similar bill was introduced in November of 2015.

*The Congressional Research Service (CRS) of the Library of Congress works exclusively for the United States Congress, providing policy and legal analysis to committees and Members of both the House and Senate, regardless of party affiliation. CRS provides Congress with analysis that is authoritative, confidential, objective, and non-partisan.

HOW A BILL BECOMES A LAW:

The U.S. Congress is the legislative branch of the federal government and makes laws for the nation. Congress has two legislative bodies (houses): the U.S. Senate and the U.S. House of Representatives. Anyone elected to either body can propose a new law. Proposals for new laws are called bills.

-A bill can be introduced in either house of Congress by a Senator or Representative who sponsors it.

-Once a bill is introduced, Representatives or Senators will meet in small groups to discuss, research or make changes to it.

-The bill is then put before that house to be voted on.

-If the bill passes one body of Congress, it is then presented to the other body to go through a similar process to be proposed, discussed and voted on.

-Once both bodies vote to accept a bill, it is presented to the President.

-The President then considers the bill. The President can approve the bill and sign it into law or not approve (veto) a bill.

-If the President chooses to veto a bill, in most cases Congress can vote to override that veto and the bill becomes a law. However, if the President pocket vetoes a bill after Congress has adjourned, the veto cannot be overridden.

Source:  https://www.usa.gov/how-laws-are-made

I believe that all of these pieces of legislation are important and should become law. I will keep you posted on these bills as they go through the process.

I have breaking news about two cases we have been watching very closely. Today, the Supreme Court decided Class v. United States, 16-424. At issue in Class was whether a guilty plea inherently waives a defendant’s right to challenge the constitutionality of his statute of conviction. The Supreme Court held today that a guilty plea does not waive the ability to challenge the statute of conviction on constitutional grounds.

In addition, yesterday the Fifth Circuit decided United States v. Herrold, 14-1317. In a hotly contested en banc decision (8-7), the Fifth Circuit held that burglary under Texas Penal Code 30.02 is not a “violent felony” for ACCA purposes.

These decisions have huge potential.

SUPREME COURT OF THE UNITED STATES

Syllabus

CLASS V. UNITED STATES, 16-424

certiorari to the United States Court of Appeals for the District of Columbia Circuit

No. 16–424. Argued October 4, 2017—Decided February 21, 2018

A federal grand jury indicted petitioner, Rodney Class, for possessing firearms in his locked jeep, which was parked on the grounds of the United States Capitol in Washington, D. C. See 40 U. S. C. 5104(e)(1) (“An individual . . . may not carry . . . on the Grounds or in any of the Capitol Buildings a firearm”). Appearing pro se, Class asked the District Court to dismiss the indictment. He alleged that the statute, 5104(e), violates the Second Amendment and the Due Process Clause. After the District Court dismissed both claims, Class pleaded guilty to “Possession of a Firearm on U. S. Capitol Grounds, in violation of 40 U. S. C. 5104(e).” App. 30. A written plea agreement set forth the terms of Class’ guilty plea, including several categories of rights that he agreed to waive. The agreement said nothing about the right to challenge on direct appeal the constitutionality of the statute of conviction. After conducting a hearing pursuant to Rule 11(b) of the Federal Rules of Criminal Procedure, the District Court accepted Class’ guilty plea and sentenced him. Soon thereafter, Class sought to raise his constitutional claims on direct appeal. The Court of Appeals held that Class could not do so because, by pleading guilty, he had waived his constitutional claims.

Held: A guilty plea, by itself, does not bar a federal criminal defendant from challenging the constitutionality of his statute of conviction on direct appeal. Pp. 3–11.

(a) This holding flows directly from this Court’s prior decisions. Fifty years ago, in Haynes v. United States, the Court addressed a similar claim challenging the constitutionality of a criminal statute. Justice Harlan’s opinion for the Court stated that the defendant’s “plea of guilty did not, of course, waive his previous [constitutional] claim.” 390 U. S. 85 , n. 2. That clear statement reflects an understanding of the nature of guilty pleas that stretches, in broad outline, nearly 150 years. Subsequent decisions have elaborated upon it. In Blackledge v. Perry, 417 U. S. 21, the Court recognized that a guilty plea bars some “ ‘antecedent constitutional violations,’ ” related to events (such as grand jury proceedings) that “ ‘occu[r] prior to the entry of the guilty plea.’ ” Id., at 30 (quoting Tollett v. Henderson, 411 U. S. 258 –267). However, where the claim implicates “the very power of the State” to prosecute the defendant, a guilty plea cannot by itself bar it. 417 U. S., at 30. Likewise, in Menna v. New York, 423 U. S. 61, the Court held that because the defendant’s claim was that “the State may not convict [him] no matter how validly his factual guilt is established,” his “guilty plea, therefore, [did] not bar the claim.” Id., at 63, n. 2. In more recent years, the Court has reaffirmed the Menna-Blackledge doctrine’s basic teaching that “ ‘a plea of guilty to a charge does not waive a claim that—judged on its face—the charge is one which the State may not constitutionally prosecute.’ ” United States v. Broce, 488 U. S. 563 (quoting Menna, supra, at 63, n. 2). Pp. 3–7.

(b) In this case, Class neither expressly nor implicitly waived his constitutional claims by pleading guilty. As this Court understands them, the claims at issue here do not contradict the terms of the indictment or the written plea agreement and they can be resolved “on the basis of the existing record.” Broce, supra, at 575. Class challenges the Government’s power to criminalize his (admitted) conduct and thereby calls into question the Government’s power to “ ‘constitutionally prosecute’ ” him. Ibid. (quoting Menna, supra, at 61–62, n. 2). A guilty plea does not bar a direct appeal in these circumstances. Pp. 7–8.

(c) Federal Rule of Criminal Procedure 11(a)(2), which governs “conditional” guilty pleas, cannot resolve this case. By its own terms, the Rule does not say whether it sets forth the exclusive procedure for a defendant to preserve a constitutional claim following a guilty plea. And the Rule’s drafters acknowledged that the “Supreme Court has held that certain kinds of constitutional objections may be raised after a plea of guilty” and specifically stated that Rule 11(a)(2) “has no application” to the “kinds of constitutional objections” that may be raised under the “Menna-Blackledge doctrine.” Advisory Committee’s Notes on 1983 Amendments to Fed. Rule Crim. Proc. 11, 18 U. S. C. App., p. 912. Because the applicability of the Menna-Blackledge doctrine is at issue here, Rule 11(a)(2) cannot resolve this case. Pp. 8–10.

Reversed and remanded.

Breyer, J., delivered the opinion of the Court, in which Roberts, C. J., and Ginsburg, Sotomayor, Kagan, and Gorsuch, JJ., joined. Alito, J., filed a dissenting opinion, in which Kennedy and Thomas, JJ., joined.

UNITED STATES v. HERROLD, No. 14-11317

In this case, the Fifth Circuit was tasked with determining whether burglary under Texas Penal Code 30.02(a)(1) and (3) are indivisible for the purpose of categorical analysis and if so, whether the two provisions are broader than the generic definition of burglary under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. 924(e)(1).

Herrold was found to be an ACCA eligible based on three prior convictions: (1) unlawful possession of LSD with intent to distribute; (2) burglary of a building; (3) burglary of a habitation. Herrold argued before the district court that none of the aforementioned priors qualified as ACCA-predicate offenses. The district court disagreed, but noted that Herrold had made “forceful arguments” that the enhancement should not apply and requested guidance from the Fifth Circuit on appeal. Herrold was sentenced to 211 months imprisonment with the ACCA enhancement.

On direct appeal, the Fifth Circuit affirmed Herrold’s ACCA sentence based on prior circuit precedent. The Supreme Court then vacated the Fifth Circuit’s judgment and remanded for consideration in light of Mathis v. United States. On remand, Herrold argued that Mathis foreclosed the possibility that his two Texas burglary convictions can serve as ACCA predicates. The Fifth Circuit again affirmed, this time on the basis of an earlier post-Mathis decision, United States v. Uribe. Herrold petitioned for rehearing en banc, which the Fifth Circuit subsequently granted.

In a highly contested 8-7 decision, the Fifth Circuit held that Texas Penal Code 30.02(a)(1) and (a)(3) are indivisible. “While the Texas burglary statute itself lacks any trait that the Supreme Court deemed relevant to the divisibility inquiry, Texas case law settles the question. Indeed, Texas courts have repeatedly held that a jury need not unanimously agree on whether Texas Penal Code 30.02(a)(1) or (a)(3) applies in order to sustain a conviction for burglary.”

The Fifth Circuit went on to note that the Uribe panel relied on different Texas state court decisions to reach the contrary conclusion. Ultimately, the court concluded that “the lower courts have fleshed out Day and Devaughn and told us what they mean in this precise context: jury unanimity, the issue that Mathis deems dispositive, is not required between Texas Penal Code 30.02(a)(1) and (a)(3).”

Having decided that the Texas burglary statute is indivisible, the court was next tasked with determining whether the state’s statute is broader than the generic ACCA definition. Because the statutes are indivisible, the court employed the categorical approach to examine the viability of Herrold’s two burglary convictions under the ACCA. Ultimately, the majority found the Texas statutes to be overly broad, thus holding that Texas burglary cannot be used as a “violent felony” predicate conviction for ACCA purposes.

Note: Class and Herrold are very important decisions that have great potential. I think it is very likely that the government will appeal the decision in Herrold, and we will have to wait and see if the Supreme Court will accept the case. In the interim, I will continue to keep you posted on any new developments.

There’s been a lot in the news about congress and tax cuts and healthcare, but there are four bills that I am watching that specifically do with criminal justice reform.  In addition to the victories that we have had this year, I’ve been reading that there will be a “Legislative sprint” this upcoming week and I am hopeful that some of the bills covered here will be part of that sprint.  

H.R.64 – Federal Prison Bureau Nonviolent Offender Relief Act of 2017

The Federal Prison Bureau Nonviolent Offender Relief Act of 2017 was introduced by Shelia Jackson Lee (D-TX) on 1/3/2017.  The CRS* has summarized this bill as follows:

This bill amends the federal criminal code to require the Bureau of Prisons to release early an offender who has completed at least half of his or her prison sentence if such offender has: (1) attained age 45, (2) committed no violent offenses, and (3) received no institutional disciplinary violations.

On January 12, 2017 this bill was referred to the Subcommittee on Crime, Terrorism, Homeland Security, and Investigations.  According to GovTrack, this bill has been introduced each session since 2003.  

S.1917 – Sentencing Reform and Corrections Act of 2017

The Sentencing Reform and Corrections Act of 2017 was introduced by Chuck Grassley (R-IA) and several other sponsors on October 4, 2017.  

There is no official CRS summary but a summary by the Senate Judiciary Committee Indicates that this bill does the following:

-Reforms & Targets Enhanced Mandatory Minimums for Prior Drug Felons

-Increases Judicial Discretion for Sentencing of Certain Nonviolent Offenders

-Reforms Enhanced Mandatory Minimums & Sentences for Firearm Offenses

-Creates New Mandatory Minimums for Interstate Domestic Violence & Certain Export Control Violations, and New Mandatory Enhancement for Trafficking of Fentanyl-Laced Heroin

-Applies the Fair Sentencing Act and Certain Sentencing Reforms Retroactively

-Establishes Recidivism Reduction Programs to Facilitate Successful Reentry

-Limits Solitary Confinement for Juveniles in Federal Custody & Improves Accuracy of Federal Criminal Records

-Provides for a Report and Inventory of All Federal Criminal Offenses

-Creates National Criminal Justice Commission to undertake a comprehensive review of the criminal justice system, which has not been done in more than 50 years.

On October 4, 2017, this bill was referred to the Senate Judiciary Committee.  According to GovTrack, a similar bill was introduced in October 2015.  

S.1933 – Smarter Sentencing Act of 2017

The Smarter Sentencing Act of 2017 was introduced by Mike Lee (R-UT) and others On October 2, 2017.  

There is no official CRS summary but in a press release on his webpage, Senator Lee Indicates the following:

“Our current federal sentencing laws are out of date, they are often counterproductive, and in far too many cases they are unjust,” said Senator Lee. “The Smarter Sentencing Act is a commonsense solution that will greatly reduce the financial and, more importantly, the human cost imposed on society by the broken status quo. The SSA will give judges the flexibility and discretion they need to impose stiff sentences on the most serious drug lords and cartel bosses while enabling nonviolent offenders to return more quickly to their families and communities.”

On October 5, 2017 this bill was referred to the Committee on the Judiciary.  According to GovTrack, a similar bill was introduced in February of 2015.

S.1902 – Mens Rea Reform Act of 2017

The Mens Rea Reform Act of 2017 was introduced by Orrin Hatch (R-UT) and others on October 2, 2017.  

There is no official CRS summary but in a press release on his webpage, Senator Hatch Indicates the following:

…[the] Mens Rea Reform Act of 2017, would set a default intent standard for all criminal laws and regulations that lack such a standard. This legislation would ensure that courts and creative prosecutors do not take the absence of a criminal intent standard to mean that the government can obtain a conviction without any proof a guilty mind.

The bill’s title, written by its author, says “A bill to specify the state of mind required for conviction for criminal offenses that lack an expressly identified state of mind, and for other purposes.”

On October 2nd 2017, this bill was referred to the committee on the Judiciary.  According to GovTrack, a similar bill was introduced in November of 2015.  

*The Congressional Research Service (CRS) of the Library of Congress works exclusively for the United States Congress, providing policy and legal analysis to committees and Members of both the House and Senate, regardless of party affiliation. CRS provides Congress with analysis that is authoritative, confidential, objective, and non-partisan.

How a Bill Becomes a Law:

The U.S. Congress is the legislative branch of the federal government and makes laws for the nation. Congress has two legislative bodies (houses): the U.S. Senate and the U.S. House of Representatives. Anyone elected to either body can propose a new law. Proposals for new laws are called bills.

-A bill can be introduced in either house of Congress by a Senator or Representative who sponsors it.
-Once a bill is introduced, Representatives or Senators will meet in small groups to discuss, research or make changes to it.
-The bill is then put before that house to be voted on.
-If the bill passes one body of Congress, it is then presented to the other body to go through a similar process to be proposed, discussed and voted on.
-Once both bodies vote to accept a bill, it is presented to the President.
-The President then considers the bill. The President can approve the bill and sign it into law or not approve (veto) a bill.
-If the President chooses to veto a bill, in most cases Congress can vote to override that veto and the bill becomes a law. However, if the President pocket vetoes a bill after Congress has adjourned, the veto cannot be overridden.

Source:  https://www.usa.gov/how-laws-are-made

Conclusion

I believe that all of these pieces of legislation are important and should become law.  I will keep you posted on these bills as they go through the process.  

Madkins was convicted of distribution of cocaine base and distribution of cocaine base within 1000 feet of a school. He was found guilty and was designated a career offender. He had two prior convictions in the state of Kansas for possession with intent to sell cocaine and marijuana. Madkins claimed that the Kansas statutes included possession of a controlled substance with intent to offer for sale, which is outside of 4b1.2. The District Court disagreed.

The Tenth Circuit reviewed the Kansas statute, which said: [I]t shall be unlawful for any person to sell, offer for sale or have in such person’s possession with intent to sell, deliver, or distribute; prescribe; administer; deliver; distribute; dispense or compound any opiates, opium or narcotic drugs, or any stimulant drug.

Kansas Law defines sale as “offer to sell.” And because that is broader than a generic federal controlled substance offense, it does not qualify as proper predicate for the career offender enhancement. This is similar to United States v. Hinkle, which was decided by the Fifth Circuit. Hinkle was enhanced as a career offender based on a prior conviction for delivery of a controlled substance. However, Texas law, like Kansas, defines “distribution” as including an “offer to sell.” As such, the Fifth Circuit held that Texas distribution priors were no longer qualifying for career offender purposes.. Similarly, in United States v. Savage, 542 f3d 959 (2nd Cir. 2008), there was a Connecticut statute that penalized the “sale” of a controlled substance. But the definition of “sale” also included “any form of delivery[,] which includes barter, exchange or gift, or offer therefor.”

Madkins sentence was accordingly reversed, and the case was remanded for further proceedings. United States v. Madkins, No. 15-3299 (10th Cir. 2017).

JEREMY’S TAKE: The “categorical approach,” which requires examination of state statutes, is complicated. Many lawyers do not understand it. However, in light of Mathis, a decision from the Supreme Court in 2016, we are slowly seeing more and more appeals courts crack the door for individuals serving a long recidivist-based sentence.

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WERE YOU ENHANCED AS A CARREER OFFENDER or did you receive an ACCA enhancement? Are you looking to hire counsel to help you get some relief? If so, my office is prepared to assist.

Have you or a loved one been charged with or convicted of a federal crime? You need an experienced Federal Defense Lawyer who can help fight for your freedom. Because we are good at what we do, we have clients from all over the country to count on us to provide them with competent and reasonably priced services.

The law office of Jeremy Gordon is dedicated and focused on powerfully and effectively representing our clients. We look forward to the opportunity to discuss your case with you. Contact us today for a free consultation and initial case review at 972-483-4865 or email us at [email protected]. Payment plans available.

 

In United States v. Strickland, No. 14-30168 the Ninth Circuit vacated a sentence because the term “physical force” under Oregon’s Third Degree Robbery statute doesn’t match the term’s use in the ACCA.

Strickland pled guilty to being a felon in possession of a firearm.  He was sentenced to 15 years under the ACCA for three prior violent felony convictions.  Strickland objected to the Oregon conviction for third degree robbery.  The District Court determined that the robbery satisfied the residual clause.  This was before Johnson v. US, now the residual clause can’t serve as the predicate for Strickland’s sentence.

The court noted that under the force clause the statute must have “as an element the use, attempted use, or threatened use of physical force against the person of another.”  and that when looking at a state statute the court looks at the text and the state court’s interpretations of the statue’s terms.

The Applicable state statute requires the use of threatened use of “physical force” upon another person.  The court indicated that the question presented is whether the term “physical force” means “violent force,” which is required for the ACCA.

The court noted that the state cases show that Oregon doesn’t require “physically violent force”  notating cases in Oregon where a thief tugged away a purse from a woman and the woman didn’t feel “much of anything.” This met the standard for that case because the thief used physical force to snatch the purse.  The court noted that “the statute does not focus on the extent to which the victim may or may not have felt the force, but rather on the perpetrator’s intent, while using force on the victim, that any resistance that the victim might offer be prevented or overcome.”  Other cases that met the statue included a case where a thief pulling away from a shopping guard was a robbery and that the statue was met when a victim and a thief had a tug of war over a purse.  Thus the statute is not a match to the force clause.  Therefore the robbery was not an appropriate predicate.  Since  the third degree was also not an enumerated offense it met no predicates for the ACCA and could not be used.

The ninth circuit vacated and remanded the sentence to the District Court, No. 14-30168

These ACCA cases where state priors are used to enhance a sentence must be given a critical eye.  each case and each statute must be evaluated in order to determine if the predicates can be challenged.  And just like in Strickland, cases saying what the law is may be vital.  If you have an ACCA enhancement please reach out to my office at [email protected] in order for us to look at your case.

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Have you or a loved one been charged with or convicted of a federal crime? You need an experienced Federal Defense Lawyer who can help fight for your freedom. Because we are good at what we do, we have clients from all over the country to count on us to provide them with competent and reasonably priced services.

The law office of Jeremy Gordon is dedicated and focused on powerfully and effectively representing our clients. We look forward to the opportunity to discuss your case with you. Contact us today for a free consultation and initial case review at 972-483-4865 or email us at [email protected]. Payment plans available.

 

In U.S. v. Concha, the Court reversed the sentence of a person who cooperated because his sentencing court abused their discretion by considering factors unrelated to his assistance.

Concha was arrested and agreed to cooperate by delivering both real and counterfeit cocaine.  After the delivery, two people were indicted for conspiracy to distribute.  A 5k1.1 motion was filed.

The court granted the government’s 5k1.1 motion but indicated that they were struggling with this because it showed his involvement in these drug crimes.  The court determined that his involvement was “huge” and that other people have been sent to jail for extended periods of time with less culpability.  The court went on to say things like “he’s dumping that crap [here].”

The court noted that his range was 168-210 months and that a 210-month sentence was appropriate.  When determining the factors, the court indicated that the crime was serious and there was damage to the community.  The court also noted that the description of the cooperation showed that he was involved in a much larger conspiracy and that his conduct was in greater magnitude.  The court sentenced him to 126 months, a 40% reduction from the 210 month sentence.  Concha appealed stating that the district court abused their discretion by considering factors unrelated to his cooperation when determining the extent of the departure.

The court noted that the for a 5k1.1 departure, the court can only consider assistance related factors only.  When a court is using 3553(e) to reduce a sentence below a statutory minimum they can only consider assistance-related factors when determining the extent of the departure.

The court noted that the district court considered factors unrelated to assistance when determining the extent of the departure.  The facts that they considered were relevant to the pre-departure sentencing determination and the court properly took those factors into account when selecting the 210-month sentence.  But the court also took them into account when determining the substantial-assistance departure.

The court determined that the district court abused its discretion when considering facts relating to his culpability for the charged conspiracy when determining ow much they would depart from the guidelines’s sentence.

The Fourth Circuit Vacated and Remanded the Sentence.

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My office handles matters involving cooperation including matters where people do not get time cuts at all or get less than what is appropriate for the cooperation that they have engaged in.  If you did not receive the amount of time off that you should have for your cooperation then please reach out to my office.  You need an experienced Federal Defense Lawyer who can help fight for your freedom. Because we are good at what we do, we have clients from all over the country to count on us to provide them with competent and reasonably priced services.

The law office of Jeremy Gordon is dedicated and focused on powerfully and effectively representing our clients. We look forward to the opportunity to discuss your case with you. Contact us today for a free consultation and initial case review at 972-483-4865 or email us at [email protected]. Payment plans available.

 

 

In U.S. vs. Reyes-Ochoa, No. 15-41270,  the Fifth Circuit held that a sixteen-level “crime of violence” enhancement for a Virginia Statutory Burglary was plain error.

Reyes-Ochoa was a citizen of El Salvador.  He pled guilty to being an alien who knowingly and unlawfully entered the US following deportation.  The prior Virginia Statutory Burglary meant that Reyes-Ochoa’s base offense level had 16 points added to it.  That led to a guideline range of 41-51 months.  Reyes-Ochoa was sentenced to 41 months.

Reyes-Ochoa asserted that his burglary case, which was prosecuted under VA Code 18.2-90 is indivisible and doesn’t satisfy the categorical approach because the statute includes offenses broader than generic “burglary oaf a dwelling.”  Reyes-Ochoa didn’t object to the sentencing enhancement in the district court meaning that the appellate court used a plain error standard.

The Court explained Mathis, and then looked at the language of the statute of VA burglary, which is:

“If any person in the nighttime enters without breaking or in the daytime breaks and enters or enters and conceals himself in a dwelling house or an adjoining, occupied outhouse or in the nighttime enters without breaking or at any time breaks and enters or enters and conceals himself in any building permanently affixed to realty, or any ship, vessel or river craft or any railroad car, or any automobile, truck or trailer, if such automobile, truck or trailer is used as a dwelling or place of human habitation, with intent to commit murder, rape, robbery or arson … he shall be deemed guilty of statutory burglary….”

The Fifth Circuit held that the Fourth Circuit (which is where Virginia is) made the right call in  Castendet-Lewis, 855 F.3d at 255–56 where they held that Virginia’s Burglary Statute was indivisible and provided four district factual means of describing how the statutory offense of burglary can be committed because the Virginia Courts analyze them interchangeably.  The Fourth Circuit noted that post Mathis, previous analysis of this failed because the statute has more than one way to satisfy a single element of a single crime.  Ultimately the Fourth Circuit indicated that the Burglary conviction could not be an aggravated felony because it criminalizes more conduct than the generic federal offense of burglary.

The Fifth Circuit agreed that the same result should happen here.  The court determined that it was obvious error to impose a Crime Of Violence Enhancement based on Reyes-Ochoa’s burglary conviction.

The court also determined that the enhancement affected Reyes-Ochoa’s substantial rights because without that enhancement he would be been subject to a guidelines range of 15-21 months which is lower than the 41 month sentence that was imposed.  The court also determined that “the fairness of the judicial proceedings and warrants the exercise of [the court’s] discretion to correct the error because his sentence was 20 months above the top of his correct guidelines range.

The Fifth Circuit Reversed, U.S. V. Reyes-Ochoa, 15-41270.

In a FAQ back when Johnson came out, my office noted that there were many different types of cases that could have been improperly enhanced due to the “crime of violence” language.  This is one of the instances that we found.  If you have “crime of violence” language in your PSI that leads to an enhancement then you may be able to fight it.  Please reach out to our office at [email protected]  to find out more.

In United States v. Ramos-Gonzales the Fifth Circuit vacated the Southern District of Texas’ “re-imposition” condition of Supervised Release.

Ramos-Gonzales was arrested and charged with attempt to transport undocumented individuals.  She pled guilty and the PSR suggested a guidelines range of 8-14 months with a 3 year term of supervised release.

The first time she was sentenced the “standard terms and conditions of supervision” were imposed.  that included a “nighttime restriction of 12 midnight to 6 AM and drug surveillance.”  There were no objections to that.

Ramos-Gonzales appealed claiming that the court committed plain error with the drug surveillance and night time restriction conditions of supervised release, stating that the district court failed to explain its reasons and the record didn’t furnish independent evidentiary support.  The government moved to remand for the same reasons stating that even though she had a 2012 conviction for possession of 44 pounds of marijuana and last smoked marijuana 25 years ago, there is nothing in the record that warrants drug  in the manner prescribed.  The Court granted plain error relief after doing its own analysis.

At resentencing the District Court Vacated the nighttime restriction because Ramos-Gonzales was living with her children and there was no evidence that the offense occurred at night time.  The court maintained the drug surveillance condition because of her prior drug conviction even though counsel maintained her objection because it was an invasion of privacy and a financial burden.

The court pointed out that that the special conditions must be reasonably related to one of four factors:

(1) “the nature and circumstances of the offense and the history and characteristics of the defendant”;

(2) “the need . . . to afford adequate deterrence to criminal conduct”;

(3) “the need . . . to protect the public from further crimes of the defendant”; and

(4) “the need . . . to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.”

The court went on to indicate that the standard of review is abuse of discretion.

The court indicated that the conviction for possession was from 2012, there was no evidence that she engaged in personal drug use and the court can’t speculate as to any criminal conduct that a surveillance-related special condition would detect or deter.  The court concluded that there was no relevant evidence of drug use and the district court abused their discretion in imposing that special condition on Ramos-Gonzales.  The court went on to indicate that since she will have to do mandatory drug testing anyway that remand would be unnecessary and just vacated the special condition of supervised release.

In a footnote, it was stated that the the sentencing hearing was handled over the phone without the defendant’s physical presence.  The court also advised against conducting sentencing hearings by telephone, advising that criminal proceedings are solemn.  Judge Jones concurred in the ruling indicating that there is no rule allowing a person to conduct a hearing by telephonic conferencing and that doing such is a “lack of dignity and detachment from the moral drama of the criminal justice system.”

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In United States v. Zuniga the Fifth Circuit remanded the conviction based on improper convictions.

Zuniga was a passenger in his vehicle.  Zuniga and the driver were followed by the police.  The police witnessed the vehicle fail to signal 100 feet continuously before turning left and park in a “disabled only” parking space (these things are law violations in Texas).  The officer who witnessed these violations was undercover and asked another officer to stop the vehicle.  The other officer did not see the law violations but stopped the vehicle anyway.  The driver did not have a license.  Zuniga had city warrants.  Both were arrested.  Zuniga was searched and was found to be in possession of a plastic bag of meth.  His vehicle was searched and a backpack with more meth was found as well as a firearm and holster.

Zuniga moved to suppress the stop and was denied on the grounds of the “collective knowledge doctrine.”  He later pled guilty to one count of Possession with Intent to Distribute 500 grams or More of Meth and Aiding and Abetting while preserving his right to challenge the suppression ruling.

At sentencing the court found Zuniga to be a career offender for his two priors of evading arrest and delivery of a controlled substance.  He was sentenced to 327 months and five years of supervised release.

Zuniga argued that his career offender sentence must be remanded under Johnson v. United States.  Zuniga filed a second supplemental brief based on United States v. Hinkle challenging the Texas Delivery of a controlled substance.  He had also challenged the reasonable suspicion of the stop as well as the application of the collective knowledge doctrine.  His reasonable suspicion arguments and his collective knowledge doctrine arguments were denied and after Beckles v. United States was published, Zuniga conceded that his argument about Johnson v. United States was foreclosed.  However Hinkle explained that Mathis does not allow sentencing courts to look at the actual method of delivery on which a defendant’s conviction was based on for purposes of determining whether the conviction constituted a controlled substance offense under the guidelines.

The government indicated that Zuniga did not raise this argument in the district court and in the opening brief to this court and as such the court should hold that Zuniga forfeited his right to bring this argument citing that Mathis only “reaffirmed” the principle articulated in Descamps.  The Court rejected this argument indicating that Mathis clarified the law on divisibility.  While Descamps was about whether a sentencing court could consult additional documents when a defendant was convicted under an ‘indivisible’ statute, Mathis was concerning “a different kind of alternately phrased law” and held that alternative means do not make alternative elements.  Hinkle then applied Mathis to a Texas Statute.

With that, the forfeiture argument was laid waste to.  The government conceded that the error was plain in this case especially when considering the disparity between the imposed sentence and the applicable guideline range.

The Fifth Circuit Vacated and Remanded.  U.S. v. Zuniga.

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In United States v. Cummings, the Second Circuit reversed a conviction because of prejudicial double hearsay.  Cummings was charged with several offenses regarding drugs, firearms and two counts of killing a person during and relation to a conspiracy to distribute cocaine base.  During the trial the government sought to offer evidence that Cummings threatened a cooperating witness because of his cooperation by offering the testimony of that person.  That person was going to testify to the defendant saying that he was going to kill the witness because of the witnesses’ cooperation.  Cummings’ counsel opposed, arguing that the probative value of that evidence was substantially outweighed the prejudicial effect under rule 403 of the Federal Rules of Evidence.  The Trial Court allowed the evidence in subject to a limiting instruction.

During the trial it came out that the witness did NOT actually hear Cummings actually say that he was going to “shoot [the witness] in the face.”  The witness never alleged that Cummings that to him directly, rather he said that to people around the witness.  Defense counsel did not re-raise the request for the limiting instruction and the court did not grant it.  There was no 404(b) instruction either (a 404(b) instruction means in this case that the jury wouldn’t have been allowed to use this threat as evidence that he committed the crimes he was charged with).  The prosecutor said at final argument that Cummings made those threats because he knew the evidence would be damaging to him at trial and that testimony, “was in fact completely devastating proof of [Cummings’] crimes.”

The Jury found Cummings guilty of all counts.

With regard to the hearsay evidence, the court held that the statements of the witness that Cummings didn’t say anything to him directly meant that it was less likely that the witness heard Cummings make the death thread.  So that means that other people heard Cummings say what he said and then told it to the witness.  That created a potential “hearsay within hearsay” problem; the first hearsay issue is when Cummings allegedly told some unknown person that he was going to “shoot [the witness] in the face.”  Then the second statement is when the unknown person told the statement to the witness who testified.

(Remember, under Federal Rule of Evidence 801, Hearsay is an Out of Court Statement offered in court for the truth of the matter asserted).

(A note by Jeremy:  Okay, so when you’re dealing with two levels of hearsay then you have to have either an exception or that it’s not actually hearsay for each one.  You have to deal with each one on its own individually)

The court noted that although the first statement could be deemed “Not Hearsay,” because it is not offered for the truth of the matter asserted but rather for consciousness of guilt OR it could be deemed “Not Hearsay” because it is a statement by a party opponent (as in the case is U.S. v. Cummings and the U.S. is offering the statement).  But even if that clears Cummings stating it to the unknown person, it doesn’t clear the unknown person saying it to the witness.  The government didn’t call the unknown person and the court indicated that the only way that the statement gets in is if it was admitted for its truth.  If it wasn’t admitted for its truth then it wouldn’t be probative of his consciousness of guilt.  So since the second statement from the unknown person to the witness is hearsay without an exception, then it is inadmissible.

The court then weighed whether the admission was harmless error.  Although Cummings did not ask for a limiting instruction, the court determined that the death threat testimony created an undue risk that the jury construed the thread as evidence of Cummings’s murderous propensity.  Second the court did not provide a limiting instruction to the jury about the limited permissible purpose of the death threat testimony.  Third the government’s description of the death threat testimony went beyond the purpose of its admission because of the government’s final argument.  Finally, the hearsay nature of the death threat testimony unfairly prejudiced Cummings and may have affected the jury’s understanding of his testimony.

The second circuit reversed, 15-2035

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In United States vs. Miller the Third Circuit reversed and remanded a case for re-sentencing for allocution error.

The defendant was convicted of money laundering and mail fraud as well as aiding and abetting, both offenses as a result of insurance claims that the defendant filed concerning damages to his theater business.

During sentencing, the defendant allocuted and the District Court Judge invited the prosecutor to cross examine him during his allocution.

He raised appellate grounds based on the sufficiency of the evidence and errors in allocution.

The Court found that there was sufficient evidence to find Miller guilty of that offenses committed.

With regard to sentencing, the court determined that the prosecution should not be allowed to cross-examine a defendant during allocution and that doing so violated a defendant’s allocution rights.  This met the court’s plain error standard for this case (the allocution error was not raised in the district court) as the court had previously ruled that they must vacate for re-sentencing if the trial court violates the defendant’s right of allocution.

The Third Circuit Reversed, U.S. v. Miller, no. 16-1145

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The defendant was found guilty of one count of possession of child pornography for owning a collection of the material and bringing it across the US-Canada Border on the way to a family vacation for personal viewing.  He was sentenced to 120 months for the possession and 225 months for the transportation (the max was 240 months).  He was also sentenced to 25 years of supervised release with extensive conditions including the inability to use or possess any computer or any other device with online capabilities at any location except at his work unless participating in the computer restriction and monitoring program, a mandate that the probation was allowed to conduct periodic unannounced examinations of any computer equipment that he used, not being allowed to have any direct contact with a person under the age if 18 without supervision or any indirect contact with someone under 18 such as online.  He was also directed to “reasonably avoid and remove” himself from situations where he has any other form of contact with a minor and not to be in any area where persons under the age of 18 are likely to congregate like school grounds child care centers or playgrounds.

The defendant was a 44 year old white male with a life expectancy of 76.5 years at the time of his sentencing.

The court noted that a sentence is substantively unreasonable if it “cannot be located within the range of permissible decisions” as well as noting that the length of a sentence my be excessively punitive or needlessly harsh with or without far reaching post-release restrictions.  The court determined that the review of a sentence for substantive reasonableness is governed by the 3553 factors with particular attention to the need for the sentence to reflect the seriousness of the offense and to promote respect for the law.  In addition, supervised release conditions are also governed by the same factors as well as involving no greater deprivation of liberty than is necessary to implement the statutory purposes of sentencing and that they are consistent with pertinent Sentencing Commission Policy statements.

The court noted that the guideline starting point in this case was 2g2.2 and that guideline is fundamentally different from most and must be applied with great care in order to prevent unreasonable sentences.  The court also noted that the offense level failed to sufficiently differentiate between offenders who distribute for pecuniary gain and those who distribute for personal noncommercial reasons.  The Appellate court noted that these concerns weren’t considered by the district court.

The court identified that 2g2.2 resulted in a sentence that came from outdated enhancements related related to the defendant’s collecting behavior even though he was not alleged to be involved in the production or distribution of such material.  The court also noted that the the defendant’s sentence was higher than that for individual who engaged in sexual conduct with in-person victims.  Simply put, he wasn’t the worst of the worst but he was sentenced as such; someone convicted of a more severe crime than the defendant in this case was given a less severe sentence.

With regard to his supervised release, the defendant would have been prohibited from interacting with family members or friends who have children under the age of 18 until he was 88 years old, well above his life expectancy and the condition that bars him form “indirect contact” is also confusing because it is unclear and could mean that he wouldn’t be able to go to sporting events, natural history museums or street fairs.

The court reversed  United States v. Jenkins 14-4295-cr

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As many of you know, Congress and the President passed the Consolidated Appropriations Act of 2017, otherwise known as the federal budget, this past week.  The bill funds the government until the end of September 2017. Remember, the fiscal year of the government is October 1 to September 30.

We are still waiting to hear about specific reforms to the government and the bureau of prisons.  As we find those I will let you know.  The text of the bill is below:

Salaries and Expenses (including transfer of funds)

For necessary expenses of the Federal Prison System for the administration, operation, and maintenance of Federal penal and correctional institutions, and for the provision of technical assistance and advice on corrections related issues to foreign governments, $7,008,800,000:  Provided, That the Attorney General may transfer to the Department of Health and Human Services such amounts as may be necessary for direct expenditures by that Department for medical relief for inmates of Federal penal and correctional institutions:

Provided further, That the Director of the Federal Prison System, where necessary, may enter into contracts with a fiscal agent or fiscal intermediary claims processor to determine the amounts payable to persons who, on behalf of the Federal Prison System, furnish health services to individuals committed to the custody of the Federal Prison System:

Provided further, That not to exceed $5,400 shall be available for official reception and representation expenses:

Provided further, that not to exceed $50,000,000 shall remain available for necessary operations until September 30, 2018:

Provided further that, of the amounts provided for contract confinement, not to exceed $20,000,000 shall remain available until expended to make payments in advance for grants, contracts and reimbursable agreements, and other expenses:

Provided further, That the Director of the Federal Prison System may accept donated property and services relating to the operation of the prison card program from a not-for-profit entity which has operated such program in the past, notwithstanding the fact that such not-for-profit entity furnishes services under contracts to the Federal Prison System relating to the operation of pre-release services, halfway houses, or other custodial facilities.

Buildings and Facilities

For planning, acquisition of sites and construction of new facilities; purchase and acquisition of facilities and remodeling, and equipping of such facilities for penal and correctional use, including all necessary expenses incident thereto, by contract or force account; and constructing, remodeling, and equipping necessary buildings and facilities at existing penal and correctional institutions, including all necessary expenses incident thereto, by contract or force account, $130,000,000, to remain available until expended, of which $50,000,000 shall be available only for costs related to construction of new facilities:

Provided, that labor of United States prisoners may be used for work performed under this appropriation.

Federal Prison Industries, Incorporated

The Federal Prison Industries, Incorporated, is hereby authorized to make such expenditures within the limits of funds and borrowing authority available, and in accord with the law, and to make such contracts and commitments without regard to fiscal year limitations as provided by section 9104 of title 31, United States Code, as may be necessary in carrying out the program set forth in the budget for the current fiscal year for such corporation.

Limitation on Administrative Expenses, Federal Prison Industries, Incorporated 

Not to exceed $2,700,000 of the funds of the Federal Prison Industries, Incorporated, shall be available for its administrative expenses, and for services as authorized by section 3109 of title 5, United States Code, to be computed on an accrual basis to be determined in accordance with the corporation’s current prescribed accounting system, and such amounts shall be exclusive of depreciation, payment of claims, and expenditures which such accounting system requires to be capitalized or charged to cost of commodities acquired or produced, including selling and shipping expenses, and expenses in connection with acquisition, construction, operation, maintenance, improvement, protection, or disposition of facilities and other property belonging to the corporation or in which it has an interest.

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The Tenth Circuit recently reversed the conviction in U.S. v. Dahda.  Roosevelt Dahda was convicted on a drug conspiracy with over 1,000 kilograms or more of marijuana.  On appeal, Dahda alleged 7 grounds for appeal, including that the District Court erred setting [Dahda’s] base-offense level by miscalculating the amount of marijuana attributed to [Dahda].

While the rest of the grounds were overruled on appeal, ground 5, which alleged that the district court erred in estimating that each pallet of drugs in this case contained 80 pounds of marijuana, was sustained.  The court indicated that “the government bears the burden to prove drug quantity through a preponderance of the evidence,” and the base-offense level may consist of an estimate if it contains some record support and is based on information bearing “minimum indication of reliability.” Basically that means that the amount of marijuana was discussed in the trial or the sentencing and that the information was reliable.

However, in this case, the information wasn’t reliable.  The appellate court found that the quantities in the pallets varied.  The government’s witnesses indicated that each pallet had “between five or ten to eighty pounds of marijuana.”  Near the end of the conspiracy, each pallet usually contained 80 pounds but there “could have been” times when the pallets contained more than 80 pounds.  The government witnesses also failed to mention a time frame for when the pallets contained 80 pounds.  The court indicated there was no way to tie the testimony of the government’s witnesses to the shipments that were attributed to Roosevelt and, as such, it was insufficient.  The court also rejected the government’s harmless error analysis because while the government’s argument on harmlessness refers to other drugs that were found on other co-defendants, the drugs that were found in total were not even close to the amount of drugs that the defendant was found  to be responsible for.

The Tenth Circuit Reversed, U.S. v. Dadha, No. 15-3237

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In U.S. v. Ricky Davis, the Ninth Circuit Appeals Court vacated and remanded a conviction for attempted sex trafficking of a minor.

The defendant in that case was accused of bringing a minor to his house and discussing the possibility of the minor making money by going on dates, taking photos of her and assisting her in getting the photos online to a known escorting website.

Davis was arrested and indicted for sexual exploitation of a minor (18 USC 2251) and attempted sex trafficking either by force or of a minor (18 USC 1591 (a), 1594).

The indictment alleging that Davis violated 1591 stated that he,

“knowingly attempted to recruit, entice, harbor, transport, provide, obtain, and maintain by any means, a person to engage in a commercial sex act, to wit: a minor female victim, . . . knowing or in reckless disregard of the fact that the person had not attained the age of 18 years[.]”

However at trial the jury instruction as to that count provided that

“The elements of sex trafficking are: . . . (2) knowing that [the minor] had not attained the age of 18 years, or recklessly disregarded that fact, or the defendant had a reasonable opportunity to observe [the minor], and that [the minor] would be caused to engage in a commercial sex act . . . [.]”

This was also in another place in the jury instructions AND the prosecutor argued the same thing in the closing argument.  The clause stating that “the defendant had a reasonable opportunity to observe [the minor]” is new.  The court should not have used this in the grand jury or in closing statements because the grand jury didn’t indict him for it.

The court held that a constructive amendment occurred because

“the crime charged [in the indictment] was substantially altered at trial, so that it was impossible to know whether the grand jury would have indicted for the crime actually proved.”

The court also held that this was a constructive amendment and not a variance.  The court indicated that the difference was that

“An amendment of the indictment occurs when the charging terms of the indictment are altered, either literally or in effect, by the prosecutor or a court after the grand jury has last passed upon them. A variance occurs when the charging terms of the indictment are left unaltered, but the evidence at trial proves facts materially different from those alleged in the indictment.”

The appellate court indicated that the district court’s jury instruction and the government’s argument had the effect of altering the terms of the amendment.

The Ninth Circuit reversed U.S. v. Davis, No. 15-10402

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Antwon Jenkins was convicted of kidnapping and using and carrying a firearm in furtherance of a crime of violence. The firearm conviction required a consecutive sentence to the kidnapping charge.

Jenkins argued on appeal that his federal kidnapping offense was not a crime of violence, and thus his gun charge under 18 U.S.C. 924(c) could not stand. The Seventh Circuit agreed.

A conviction can constitute a “crime of violence” under the “force clause” of 924(c) or the “residual clause.” However, the Seventh Circuit in United States v. Cardena, 842 F.3d 959, 996 (7th Cir. 2016) held that the “residual clause” of 924(c) is unconstitutionally vague. Thus, if the kidnapping charge was not a crime of violence under the “force clause,” the 924(c) conviction was improper.

A conviction qualifies under the “force clause” if the crime “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” 18 U.S.C. 924(c)(3)(A).

The Seventh Circuit held that “kidnapping as defined in 18 U.S.C. § 1201(a) does not require the use of force as an element.”

Because the kidnapping offense could not be used to support Jenkins’ conviction on the 924(c) charge, Jenkins’ conviction on the 924(c) count was reversed. See: United States v. Jenkins, No. No. 14-2898 (7th Cir. 2017).

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“Prisoners have a Sixth Amendment right to be present when legal mail related to a criminal matter is inspected,” the U.S. Court of Appeals for the Ninth Circuit recently held. See: Mangiaracina v. Penzone, No. 14-15271 (9th Cir. 2017).

Nick Mangiaracina, an Arizona prisoner, sued jail officials after his properly marked legal mail was opened twice. Mangiaracina filed grievances about the opening of his legal mail. Mangiaracina also alleged that jail staff told him that they“’can open legal mail outside our presence if they want to,’ that there is no law against it, and that ‘they just do it in our presence as a courtesy.’”

While Mangiaracina’s legal mail was only opened twice outside his presence, the Ninth Circuit held that “even isolated incidents of improper mail opening may, in appropriate circumstances, be sufficient to allege a Sixth Amendment violation.”

Jail officials argued that Mangiaracina was also required to allege that his mail was actually read by guards, but the Ninth Circuit disagreed.

“If the practice of opening legal mail in the presence of the prisoner is designed to prevent correctional officers from reading it, then the natural corollary is that a prisoner whose mail is opened outside his presence has no way of knowing whether it had been (permissibly) inspected or (impermissibly) read. In other words, Mangiaracina could not in good faith have alleged that jail employees had read his mail, since he had no basis for knowing what had happened to his mail prior to delivery,” the court wrote.

The court also concluded that jail officials could not “identify any legitimate penological interest that would be served by opening legal mail outside Mangiaracina’s presence,” citing the jail’s own policy that required legal mail to be opened in the presence of inmates. “Defendants have identified no reason in their briefing for deviating from this policy. No special deference is therefore required,” the court held.

The district court’s dismissal of Mangiaracina’s suit was accordingly reversed, and the case was remanded for further proceedings.

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Rosario Vazquez-Hernandez was charged with attempted illegal re-entry. Vazquez-Hernandez frequently entered the pre-inspection area of a U.S. border crossing so he could wash windows. The Government contended that his presence in the pre-inspection area constituted a criminal offense because Vazquez-Hernandez had been previously deported. The Ninth Circuit disagreed.

“To convict a defendant of attempted illegal reentry, the Government must prove beyond a reasonable doubt that the defendant crossed into the United States with the specific intent to enter the country free from official restraint,” the Ninth Circuit wrote.

Vazquez-Hernandez could not be convicted of attempted illegal re-entry based on his presence in the pre-inspection area, the Ninth Circuit concluded, because he was not free from “official restraint” in the pre-inspection area.

“The official restraint doctrine was intended to safeguard the presence of uninspected immigrants in precisely the type of area in to which Vazquez-Hernandez entered and where he remained. The freedom from official restraint requirement addresses the practical concern that failing to require such a finding would lead to the criminalization of individuals who arrive at a port of entry but have not yet had an opportunity to apply for inspection,” the court explained.

Vazquez-Hernandez was also not free from official restraint because he was “in an area that [wa]s subject to constant government surveillance,” the court wrote. “Here, the government’s witnesses testified that the pre-inspection area was subject to surveillance by hundreds of cameras, with small blind spots, and was surrounded on all sides either by walls or law enforcement agents.”

The court also held that “there is no doubt in this case that Vazquez-Hernandez was not free to travel at will beyond the points of inspection. The area was largely walled off from U.S. territory not subject to such surveillance and monitored by Border Patrol agents who attempted to stop individuals from proceeding into the United States without inspection. Therefore, given this evidence on the conditions of the pre-inspection area, no rational jury could have concluded beyond a reasonable doubt that Vazquez-Hernandez was free from official restraint in this area, or that he intended to be by entering it.”

The court also found that there was insufficient evidence that Vazquez-Hernandez “intended to go beyond the pre-inspection area so as to be free to go at large and at will within the United States.”

His conviction for attempted illegal re-entry was accordingly reversed. See: United States v. Vazquez-Hernandez, No. 15-10009 (9th Cir. 2017)

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