Legal papers and gavel

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

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

What Is a Federal Criminal Appeal?

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

What Happens During the Appeals Process?

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

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

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

How Long Does the Appeals Process Take?

If you are into immediate results, you are likely going to be frustrated by the federal criminal appeals process. In general, federal criminal appeals take quite a few months, if not a year or even longer. You might be asking, “Why does the federal criminal appeals process take so long?”.

Consider this: the federal courts can be crowded, and the process of an appeal – by its very nature – is a slow one. The courts consider each case carefully and individually, which takes time. Even though technology has helped to speed up some of the process (many courts accept briefs electronically), there is no technology that can make the core tasks of deliberation by the individual judges go faster.

Each judge must carefully read, research and ponder the arguments of both sides. And judges are human, after all, and an only work so many hours a week. Even with a hoard of staff members to help them, the ultimate decision must be rendered by the judge. The stark reality is that any one judge might have hundreds of cases to process, and so it just takes time.

As an attorney who has been dealing with the federal criminal appeals process for more than a decade, I can tell you that even though I warn my clients that the process can take a year or more, it’s still a surprise to them when it does.

Statistics from the Office of the U.S. Courts indicate that most appeals take 12 – 18 months. There are some circuit courts in which an appeal takes 9 months on average, and some circuit courts in which an appeal takes 18 months.

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

Confused attorney

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

What is a U.S.C. § 2255 Motion?

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

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

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

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

Q:“Who Can File a § 2255 Motion?”

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

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

Q: How Long Do I Have to File a § 2255 Motion?

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

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

Normally, cases in the federal criminal system have a direct appeal. But when the direct appeal did not work, was never filed, does not have the ability to work, or simply will not meet the needs of the defendant, a § 2255 is often the way to go. We strongly encourage you to reach out and contact our office for a free consultation with one of our knowledgeable professionals to get more information and a quote for services. 

Q: “What Does Ineffective Assistance of Counsel Really Mean?”

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

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

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

Other examples of ineffective assistance of counsel may include:

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

SUMMARY: § 2255 Motions

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

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

United States v. Fleming, No. 17-3954

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


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


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


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


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


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


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


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


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


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


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


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


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


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

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

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


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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

McCalla pled guilty to conspiracy to possess at least five kilograms of cocaine with intent to distribute. The Mandatory minimum, in that case, was ten years. His range of punishment was 136 to 168 months. He was sentenced to 126 moths and the court found that a sentence below the advisory guideline range would be sufficient but not greater thank necessary to comply with the requirements of section 3553. McCalla was informed that he had the right to appeal. He did not file a direct appeal. In his 2255 motion he alleged that he would have appealed his sentence if counsel had consulted him and that counsel knew that McCalla was unhappy with the indictment and sentence. McCalla also stated that he “expressed his desire to challenge [this] unbelievable result” and requested an evidentiary hearing.

The magistrate replied that he McCalla’s motion should be denied, that McCalla did not ask counsel to file an appeal, that counsel did not have a duty to consult McCalla and that “no rational defendant would have wonted to appeal.” The magistrate ruled that McCalla was not entitled to an evidentiary hearing because his claim was meritless. The District court adopted the recommendation of the Magistrate’s court and denied the certificate of appealability.

On appeal the court started by stating that both a direct appeal and effective assistance of counsel are rights. Further, the accused has the authority to make certain decisions regarding the case such as whether to take the appeal. Counsel is to advise the defendant about the advantages and disadvantages of taking an appeal and make a reasonable effort to discover the defendant’s wishes. When a defendant has not instructed counsel to file a notice of appeal there is a constitutional duty to consult when a defendant reasonably demonstrated to counsel that he was interested in appealing. When counsel’s performance deprives a defendant of an appeal that he would have otherwise taken then that is prejudice even if the appeal would not have won.

McCalla’s statement that he wanted to challenge his sentence showed that he was interested in appealing. Counsel was to advise McCalla about the advantages of taking an appeal. Counsel did not. If counsel had done their duty then McCalla would have asked his attorney to appeal the sentence. This showed that McCalla had alleged facts, that, if true, established a successful ineffective assistance of counsel claim entitling him to an appeal Neither the fact that he not have been successful nor the fact that the sentencing judge notified Thompson that he had a right to appeal changes the conclusion of the court. This means that the district court abused their discretion when they denied his evidentiary hearing on this.

The Eleventh circuit reversed with orders to schedule an evidentiary hearing.

McCalla v. United States. No. 16-15623, 2018 WL 1747722

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

In United States v. Ricky Davis, the Ninth Circuit Court of Appeals vacated and remanded a conviction for attempted sex trafficking of a minor. The defendant was accused of brining a minor to his house and discussing the possibility of the minor making money by going on dates, taking photos 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 U.S.C. 2251) and attempted sex trafficking either by for or of a minor (18 U.S.C. 1591(a), 1594).

The indictment alleged that Davis:

“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 the section 1591 violation charged:

“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 . . . .”

The above was also reiterated by the prosecutor in closing argument. On appeal, Davis alleged that the inclusion of the phrase “or the defendant had a reasonable opportunity to observe [the minor]” was a constructive amendment to the indictment.

The Ninth Circuit 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 provided.” The court further held that this was a constructive amendment and not a variance, stating that:

“An amendment of the indictment occurs when the charging terms of the indictment were 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 instructions and the government’s argument had the effect of altering the terms of the amendment.

The Ninth Circuit reversed. See United States v. Davis, No. 15-10402

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.

2255 motions

United States v. Wheeler, __F.3d__, 2018 WL 1514418 (4th Cir. 2018)

The Fourth Circuit recently handed down a very important and precedential decision on the applicability of the savings clause to the legality of a petitioner’s sentence.

Appellant Gerald Wheeler was charged in the United States District Court for the Western District of North Carolina of conspiracy to possess with intent to distribute cocaine, cocaine base, and marijuana, possession of a firearm during and in relation to a drug trafficking crime, and possession of a firearm by a convicted felon. Wheeler pled guilty pursuant to a plea agreement, which agreed to an enhanced penalty pursuant to 21 U.S.C. 851 for the drug count.

In 2008, the district court sentenced Wheeler to 120 months in prison on Count One based on the statutory mandatory minimum under 21 U.S.C. 841(b)(1)(B) and 851. The Fourth Circuit affirmed Wheeler’s sentence in 2009. United States v. Wheeler, 329 Fed. Appx. 481 (4th Cir. 2009).

In 2010, Wheeler filed a motion pursuant to 28 U.S.C. 2255 alleging his counsel was ineffective for, inter alia, failing to argue that Wheeler’s 1996 North Carolina conviction for possession of cocaine did not qualify to enhance his sentence under section 851. The district court dismissed Wheeler’s 2255 motion as foreclosed by the Fourth Circuit’s holdings in United States v. Harp, 406 F.3d 242 (4th Cir. 2005) and United States v. Simmons, 635 F.3d 140 (4th Cir. 2011). Those decisions held, “[T]o determine whether a conviction is for a crime punishable by a prison term exceeding one year [under North Carolina law], … we consider the maximum aggravated sentence that could be imposed for that crime upon a defendant with the worst possible criminal history.” Harp, 406 F.3d at 246; Simmons, 635 F.3d at 146. Pursuant to this reasoning, the district court found that Wheeler received a 6 to 8-month sentence for the 1996 conviction, thus, “his offense was punishable by imprisonment for more than a year” because it was a Class I felony which carried a maximum sentence of 15 months. Wheeler filed a notice of appeal and motion for COA with the Fourth Circuit on August 3, 2011.

While Wheeler’s motion for COA was pending, the Fourth Circuit overturned Simmons on rehearing en banc. The court determined that “in deciding whether a sentencing enhancement was appropriate under the Controlled Substances Act, a district court could no longer look to a hypothetical defendant with the worst possible criminal history…. [A] sentencing court may only consider the maximum possible sentence that the particular defendant could have received.” United States v. Kerr, 737 F.3d 33, 37 (4th Cir. 2013). Even so, the Fourth Circuit denied Wheeler’s motion for COA because it determined Simmons did not apply retroactively to cases on collateral review.

Wheeler subsequently submitted a request for authorization to file a second 2255 motion with an alternative petition pursuant to 28 U.S.C. 2241 seeking application of the savings clause (28 U.S.C. 2255(e)). The Fourth Circuit denied Wheeler’s request to file a second or successive 2255 but did not address his 2241 petition which was pending at the time before the district court.

The district court stayed the 2241 petition pending the resolution of United States v. Surratt, No. 14-6851. The majority panel in Surratt distinguished the court’s decision in In re Jones, which granted savings clause relief after setting forth a three-part test based on the legality of a petitioner’s conviction, but not his sentence. Following Surratt, the district court denied Wheeler’s 2241 petition because it did not challenge the legality of his conviction, only his sentence.

Wheeler once again appealed, and the Fourth Circuit subsequently granted rehearing en banc in Surratt, thus vacating the panel’s prior opinion. However, rehearing in Surratt was found to be moot after his sentence was commuted by President Obama. The Fourth Circuit lifted the stay pending rehearing and has finally addressed the merits of Wheeler’s 2241 claims.

First, the Fourth Circuit addressed the government’s “shifting position” on jurisdiction. The government initially conceded that Wheeler met the savings clause requirements before the district court. However, on appeal, the government did an “about-face,” and argued that the court was without jurisdiction because Wheeler had failed to satisfy the savings clause requirements. The Fourth Circuit concluded that “[b]ecause the savings clause requirements are jurisdictional, we must reject Appellant’s waiver argument. Though the Government’s change of position is a ‘distasteful occurrence[ ]’ and is ‘not to be encouraged, its about-face is irrelevant to our resolution of’ this appeal.”

The court then turned to whether Wheeler’s 2241 petition satisfied the savings clause requirements of the circuit. The Fourth Circuit’s seminal decision, In re Jones, held that a petitioner must satisfy three elements to meet the savings clause requirements:

[Section] 2255 is inadequate and ineffective to test the legality of a conviction when: (1) at the time of conviction, settled law of this circuit or the Supreme Court established the legality of the conviction; (2) subsequent to the prisoner’s direct appeal and first 2255 motion, the substantive law changed such that the conduct of which the prisoner was convicted is deemed not to be criminal; and (3) the prisoner cannot satisfy the gatekeeping provisions of 2255 because the new rule is not one of constitutional law.

The question now before the court was whether Jones applies to sentencing arguments. The Fourth Circuit held it does and announced a new savings clause test for erroneous sentences:

“[W]e conclude that 2255 is inadequate and ineffective to test the legality of a sentence when: (1) at the time of sentencing, settled law of this circuit or the Supreme Court established the legality of the sentence; subsequent to the prisoner’s direct appeal and first 2255 motion, the aforementioned settled substantive law changed and was deemed to apply retroactively on collateral review; (3) the prisoner is unable to meet the gatekeeping requirements of 2255(h)(2) for second or successive motions; and (4) due to this retroactive change, the sentence now presents an error sufficiently grave to be deemed a fundamental defect.”

After applying the new savings clause test to Wheeler’s 2241 claims, the Fourth Circuit held that Wheeler did, in fact, show that 2255 is inadequate and ineffective to test the legality of his detention.

The Fourth Circuit VACATED and REMANDED to the district court to have his 2241 petition addressed on the merits.

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

In United States v. Jacinto-Gonzalez, 2018 WL 1378021, the Eleventh Circuit vacated a sentence in order for an inmate to be credited with the time that he spent in a federal facility.

Jacinto- Gonzalez was arrested and charged with being in the United States after being previously deported. He pled guilty on June 23 and had been in custody since March 26. His punishment range was between 8 and 14 months. His counsel asked the court “to fashion a sentence that gives him credit for that time.” The court said it was hard to know how much credit Jacinto-Gonzalez would get and sentenced Jacinto-Gonzalez to eight months confinement with no credit for time served. The court said:

“What I’ve essentially done is given him credit for the time served and calculate it as a 13- or 14-month sentence, depending on whether you’re giving him credit or not for the 30 days he did on state time, which technically he should not get credited against this, but the bottom line is eight months with no credit for time served before today.”

When his attorney objected, the court said that he was effectively getting credit. The court placed in the order that: “The defendant has received credit for his prior time in custody. Thus, the defendant SHOULD NOT receive credit for any time served prior to October 4, 2017, the date of sentencing (emphasis added)”

The court stated that while 18 USC 3585(b) says that “‘a defendant shall be given credit” for time served in official detention “that has not been credited against another sentence.’” The Supreme Court has also stated that section does not authorize a district court to compute the credit at sentencing. Rather, it is the Bureau of Prisons that computes credit for time served.  This means that although the court could adjust Jacinto-Gonzalez’s sentence for the amount of time served that he had, the court didn’t have the authority to prevent the BOP from calculating the time served.

The government said that this error was harmless and invited. The court disagreed. First Jacinto-Gonzalez just asked that the court also consider his time served when the court was deciding the appropriate length of the sentence under 2L1.2 of the Guidelines. Second, with regard to harmlessness, Jacinto-Gonzalez did not necessarily receive a shorter sentence by getting sentenced to 8 months with no credit for time served. Finally, it wasn’t clear when he went in and out of federal custody meaning it’s not clear beyond a reasonable doubt that the error complained of did not contribute to the sentence.

The Eleventh Circuit reversed with orders that the district court can consider the time spent by Jacinto-Gonzalez received in state custody pursuant to 2L1.2 comment 6, but the court can’t preclude the BOP from performing its own calculation of time served. 2018 WL 1378021

In United States v. Bell, 2018 WL 1432956, the Third Circuit vacated an improperly assigned sentence.

Bell pled guilty to the offense of felon in possession of a firearm. He was enhanced at sentencing due to the ACCA and his priors.

Bell’s first ground for appeal, that his priors did not meet the standard for the ACCA was denied.

Bell’s second ground was that his sentence was improperly calculated. The PSI calculated his sentence at 37 and assessed a three-level downward variance for acceptance of responsibility down to 34. When combined with his criminal history category of IV, his sentencing range came out to 262-327 months. The court adopted the PSI and granted a downward variance to 202 months.

Bell argued that his offense level should have started at 34 under U.S.S.G. § 4B1.4(b)(3)(A) which after the three-point reduction for acceptance of responsibility would put him at a 31 (note:  level 31 criminal history category 6 would be 188–235 months on the 2016 manual). The government conceded this to be accurate AND conceded this to be plain error under Rule 52(b) and Molina Martinez v. United States, 136 S. Ct. 1338, 1345 (2016) “When a defendant is sentenced under an incorrect Guidelines range—whether or not the defendant’s ultimate sentence falls within the correct range—the error itself can, and most often will, be sufficient to show a reasonable probability of a different outcome absent the error.”

The Third Circuit vacated the sentence and remanded it back to the district court. United States v. Bell, 2018 WL 143295