BREAKING: FIRST STEP ACT APPROVED BY HOUSE AND SENATE, GOES TO PRESIDENT’S DESK

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.

A Legislative Update For The Upcoming Year

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.

Breaking News – Supreme Court Decides Class v. United States; Fifth Circuit Decides United States v. Herrold

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.

A Legislative Update

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.  

Tenth Circuit Vacates Career Offender Enhancement Based on Kansas Drug Distribution Charge

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.

 

Ninth Circuit Declares Oregon Third Degree Robbery Not a Violent Felony

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.

 

Court Reverses Sentence for Considering Factors Unrelated to Cooperator’s Assistance

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.

 

 

Fifth Circuit Vacates Crime of Violence Sentence Based on Mathis

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.

Fifth Circuit Remands Conditions of Supervised Release

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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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.

Fifth Circuit Remands Case Based on Improper Prior Convictions

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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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.