Clemency . . . .

Yes, I just used the C word. 

It seems we may be looking at some sentence commutation.  And a group of organizations, including the Defender organization, NACDL, FAMM, and more, have formed Clemency Project 2014. 

BOP is going to be sending notice to inmates outlining the criteria for which the president is looking and telling inmates how to get assistance from the Clemency Project. 

If YOU would like to take a case, please contact Norman Reimer at clemencyproject@nacdl.org. 

The criteria IN BRIEF(!):
* Drugs (any kind).
* Would sentence be lower if imposed today?
* Long sentence, clean record in custody, not a public-safety threat, and more. . . .

Also, if you have represented someone that you think might be a candidate and want to explore the criteria and/or want to recommend them for review in this process, you can call the office at 616-742-7420 and I can send you more info.

Med MJ Issues

Just posted this one to the Sixth Circuit blog too.

United States v. Duval, Nos. 12-2338/2339 (6th Cir. Feb. 7, 2014) (for publication).

Med MJ issues.

Panel of Judges Cole, Gilman, Donald. 

Issues:
* Was compliance with Mich Med MJ Act (MMMA) relevant to search-warrant application?  COA said no.
* Did the indictment allege a federal crime even though one of the defendants was a registered "caregiver" under the MMMA and qualified for the "practitioner exception" under 21 U.S.C. 802(21)?  COA said yes.
* COA affirmed district court.

Discussion:
* Defendants said search warrant invalid b/c deputy omitted defendants' status as registered patients and caregivers under Mich law.  Gov said issue waived b/c not raised in dist ct.  COA rejected gov's contention---defense counsel probed issue sufficiently in dist ct, though not quite explicitly. 
* Deputy did not have "clear and uncontroverted evidence" that defendants were complying fully with MMMA at time of search-warrant application.  Actually seemed like the defendants were not complying, given what officer knew.  The deputy did not know another officer had advised the defendants earlier about complying with the MMMA.  So failing to include that info in warrant application could not be deliberate.  Info not imputed here.  No evidence the officers communicated.
* Application for warrant was to state magistrate, rather than the federal magistrate judge, despite fact deputy was detailed to a federal agency.  But deputy's position gave him flexibility to choose whether investigation would go state or federal.   
* No error in failing to suppress evidence. 
* Defendants waived and forfeited chance to challenge sufficiency of indictment.  Issue raised first time on appeal.  Won't fly unless the alleged defect is jurisdictional.  No jurisdictional defect here.  COA cited United States v. Marcinkewciz, No. 12-2441 (6th Cir. Oct. 29, 2013). 

Escape as Crime of Violence? No!

Way to go, Mr. Geoff Upshaw!  Mr. Upshaw is a member of our WD Mich CJA Panel and got this great victory!

United States v. Covington, 738 F.3d 759 (6th Cir. 2014).

Panel of Judges Rogers, Stranch, and Donald. 

Is prison escape under MCL 750.193 a crime of violence?  No. 

The plea colloquy from the state escape conviction showed that the defendant had left the correction center with permission on a laundry pass and returned ten minutes late. Believing he would be sent back to prison for violating the center's rules, the defendant went out a window, jumped a fence, and ran through a wooded area to escape.

Court applied Descamps. 

Because the statute gives several ways in which it may be violated, including some escapes that involve the element of breaking and some that do not, the statute is divisible for Descamps purposes.  Modified categorical approach applies. 

Offense here was a breaking-and-escaping offense. 

COA reminds us that the powder-keg theory is no longer persuasive. 

Court found that breaking and escaping from prison and burglary of a dwelling share only one risk: the potential for discovery and capture.  The COA says this factor is not one to consider post-Anglin.  Even if the Court were to consider such a risk of confrontation, the risk posed by breaking into a home "is considerably greater than the risk posed by breaking out of a prison."  And even if the risks associated with breaking and escaping from prison could be comparable to those associated with burglary, the offense at issue "also criminalizes walking out of an unguarded area by pushing open a partially ajar door.  The statute thus covers a much 'broader swath of conduct' than what might arguably qualify as a crime of violence."

Not a crime of violent.

Judge Stranch concurred:

In Denson, the judge had put the "divisibility" issue under Descamps at the end of the analysis.  The judge now feels that this placement led "to a somewhat redundant analysis."  The proper order for the "analysis after Descamps is to put the 'divisibility' question first."  If a statute is divisible, a court may consider the Shepard documents briefly to determine the alternative offense of which the defendant was convicted.  From that point, the court should apply the same categorical test used for indivisible statutes.

GPS Tracking, Warrants, and Good Faith

OK, life has been moving along post-Jones. 

Things were good in the Third Circuit.

"The police acted in the face of unsettled law at a time when courts were becoming more attuned to the argument that warrantless GPS surveillance violated the Fourth Amendment. Excluding the evidence here will incentivize the police to err on the side of constitutional behavior and help prevent future Fourth Amendment violations. We therefore conclude that the police actions taken here do not qualify under the good faith exception and hold that the exclusionary rule should apply in this case."

United States v. Katzin, 732 F.3d 187, 214 (3d Cir. 2013).

So no good-faith exception to the warrant requirement. . . .

BUT

On December 12, 2013, the Third Circuit granted rehearing en banc.  Set for May 28, 2014.  I guess we'll just stay tuned.   

Detainers: A Brief Primer

In Ortega v. United States Immigration and Customs Enforcement, No. 12-6608 (6th Cir. Dec. 10, 2013) (for publication), the COA gives a short discussion of immigration detainers.  Thought it would be helpful to post.  Panel was Judges Keith, Sutton, and Black (S.D. Ohio).  Judge Keith dissented. 

The COA explained:

Immigration authorities focus on individuals accused of breaking other laws.  Using a database, authorities determine whether an individual convicted of a state or federal offense is in the country illegally.  If the agent determines that the person is here illegally, the agent will issue a detainer to the authority that is then holding the person.  This detainer requests that the latter authority keep the person in custody or let the immigration agency know when the person is about to be released. 

8 C.F.R. 287.7 regulates detainers. 

The COA admonishes that federal detainers do not normally raise constitutional questions:

"If a local prison keeps tabs on someone until his release, even if it moves him from one prison setting to another, it is difficult to see how that continued custody is any business of the Due Process Clause or for that matter the Fourth Amendment."  Likewise, the local prison may notify federal immigration authorities before an inmate's release to allow the authorities to take custody of the inmate to begin removal proceedings. 

As the COA points out, however, things get complicated in less straight-forward cases.  What if an arrest is based solely on the detainer?  What if a state refuses to release someone, because of an immigration detainer, who has posted bail?  What if a state keeps a person in custody, because of a detainer, when the sentence was weekend confinement?  Or the person is on home confinement and gets moved to a prison? 
  Once a person is convicted and sentenced, deprivation of liberty is permissible.  Deprivations caused by moving prisoners, and things like that, do not raise due-process concerns.  A shift from home confinement to prison, however, may implicate due-process concerns. 

Here, the plaintiff sued ICE b/c he was on home confinement, and an American citizen, and a detainer was erroneously issued, which caused authorities to incarcerate him for four days.  For both the due-process and Fourth Amendment claims, however, the COA just found that the law was unsettled and so qualified immunity protected the defendants. 

Judge Keith dissented.

Judge Keith believes there was a clearly established liberty interest in home confinement.  And officers should have known that removing a person from their home and incarcerating them requires a minimum level of process. 

"The facts of this case are such that the unlawfulness of Metro Defendants’ conduct is readily apparent, even in the absence of clarifying case law. Metro Defendants seized Ortega, an American-born, United States citizen, from his home and took him to jail for four days, based upon an improper detainer, without a warrant or any semblance of process. In doing so, Metro Defendants did not allow him to produce any documentation that he was an American citizen."

Dissent also sees a problem with the lack of the detainer in the record. Cannot assess the reasonableness of the officer's error without being able to review the detainer.  

"To allow ICE to issue a detainer against an American citizen, with unlimited discretion and without any accountability, sets a dangerous precedent and offends any and all notions of due process."

More Blewett: Dissenting Opinions

I just posted on the 6th Cir. blog too. . . .  My week to blog there.

Judge Merritt's Blewett dissent:

* Restoring fairness and enforcing a "no-change" sentencing policy based on "finality" are incongruous.  Congress intended to remedy irrationality and disproportion.  Court is thwarting this effort. 
* Cites NACDL and NAACP amicus briefs. 
* "Practically all observers" now recognize the ills of the old system. 

Judge Cole's dissent:

* Applying 100-to-1 ratio and mandatory minimums to deny 3582(c)(2) relief violates equal-protection principles. 
* African-Americans treated more harshly than Caucasian offenders under this regime.  And  88% of the inmates that would be eligible for a reduction if mand mins not a bar are African-American. 
* Claim of "finality" cannot withstand even rational-basis scrutiny under equal-protection principles.
* "Finality " not a bar to other 3582(c)(2) resentencings.  Irrational to allow sentence to be lowered in one case and not the other. . . .
* Quotes Judge Nathaniel Jones: "As judges, we should no longer remain wedded to that which experience shows is neither rational nor fair." 

Judge Clay's dissent:

* Majority is furthering prior injustice by holding that the FSA is not retro.  Individuals like Blewetts will continue to be imprisoned "in a disproportionate, unjustified manner, in violation of their rights under the Equal Protection Clause." 
* Not sure of procedural mechanism for relief. 
* "Although the FSA is not facially discriminatory, an interpretation of the FSA foreclosing the retroactive application of its new mandatory minimums would present an equal protection problem inasmuch as it would subject a group that is overwhelmingly predominately African American to starkly different treatment under the law.  Such an interpretation can meet neither strict scrutiny nor rational basis review and should therefore be avoided by this Court."
* "Adopting new mandatory minimums for the purpose of righting the racially discriminatory wrongs of the past and not extending the benefits of the new enactment to the thousands of predominately African American individuals serving disproportionate sentences under a now-rejected statue violates equal protection because Congress has recognized and reaffirmed 'its adverse effects' upon the African American community."
* Congress has distinguished crack and powder offenders, "the former being overwhelmingly impoverished African Americans."  This group---crack offenders---is exceedingly "abject, disparaged, powerless," a minority group that may be the most powerless.  Here the democratic process "breaks down" and "traditional rational basis review is insufficient to protect the group of individuals convicted under federal crack cocaine mandatory minimums."  More than 82% of this group is African-American (2005 stat).  The courts should not defer "to government enactments under circumstances where an irrational classification based on the form of cocaine, which has real-world consequences in terms of sentencing disparities, tracks so closely with race."  No legitimate penological/pharmacological reason for the continued incarceration of inmates who were subjected to extended sentences under the repudiated 100-to-1 ratio.  In the face of a "more rigorous rational basis standard, the government can only offer finality as its legitimate interest in support of the continued application of the old mandatory minimums."  Won't cut it. 

Judge Rogers's dissent:

* Finds that "Dorsey supports the idea that, when a post-Fair Sentencing Act sentence is properly calculated under 3582(c)(2) because a guideline has been retroactively changed, the new statutory minimums should be applied as well.  In other words, when a post-Fair Sentencing Act sentencing court properly has before it the calculation of a sentence, the court should use the Fair Sentencing Act minimums."
* Majority's analysis is anomalous.
* With Dorsey in view, not logical to rely on saving statute's default rule. 
* 3582(c)(2) = Congress's "background principle of retroactivity." 
* Illogical to provide GL relief and not statutory relief. 
* Cites argument re. "worse guys" who were sentenced above GLs getting break while less culpable guys (sentenced at mand min) not getting break. 
* "It may be that the Supreme Court Justices and litigants in Dorsey assumed that the 18-1 minimums could not be applied whenever sentencing occurred prior to the Fair Sentencing Act's passage.  But assumptions are not law.  Likewise the holdings of other circuits, and of our prior three-judge panels, are not binding, however persuasive they may or may not be.  The plain fact is that the language of the Fair Sentencing Act does not require the anomaly that the 18-1 ratio applies retroactively to reduce guideline-driven sentences but not mandatory minimum-driven sentences, when both the guidelines and the minimums were reduced by the Fair Sentencing Act."
* Somewhat distinguishes the adverse law in other circuits.  (Footnote 1.)
* "This analysis does not mean that the Sentencing Commission is trumping the statute.  The revised statutory minimums are, after all, created by statute.  The Sentencing Commission, acting properly under 28 U.S.C. 994(u), made the Fair Sentencing Act-driven guidelines retroactive.  Doing so provided the statutory key to making the statutory minimum changes applicable under 3582.  This is a reasonable statutory interpretation, and it is particularly reasonable to avoid an incoherent anomaly."
* Does agree with majority that constitutional avoidance doesn't apply. 
Judge White's dissent:

* She concurs in Judge Rogers's dissent and writes "separately to express the view that the fair implication of the Fair Sentencing Act is that Congress intended that the Sentencing Commission determine whether and to what extent the newly enacted increased base-cocaine quantity thresholds for triggering mandatory minimum sentences would be applicable to defendants already under sentence.  Further, allowing application of the new 18:1 ratio to all offenders already under sentence except those whose sentences under the new ratio would clash with the old 100:1 ratio's mandatory minimum sentences bears no rational relation to any identified Congressional purpose."
* "It is the majority that turns the Fair Sentencing Act on its head by its rigid adherence to the general savings statute in the face of the Commission's clear authority to establish the new guidelines based on the greater mandatory-minimum thresholds and to decide whether and to what extent the new thresholds should be applied to prisoners under sentence."
* She addresses several arguments regarding the Commission's powers. 
* "The Blewetts's claim does not rest on an asserted constitutional right to the retroactive application of the Fair Sentencing Act.  It rests on the irrationality of allowing its application to all sentences that have become final and are affected by the new guidelines except sentences based on the very mandatory minimum levels that the Fair Sentencing Act amended.  Congress did not intend this irrationality, and that is why Judge Rogers is correct.  Nevertheless, if Congress is understood to have the intent ascribed to it by the majority, that intent is irrational and violates the  Equal Protection Clause absent rational justification other than finality."

Blewett Decided

I just posted this note to the 6th Cir. blog too. 

Well, the Sixth Circuit en banc released Blewett yesterday.  Get out your hankies.  This one's a tear jerker.

United States v. Blewett, Nos. 12-5226/5582 (6th Cir. Dec. 3, 2013).  The majority opinion is by Judge Sutton.  Judge Moore concurred.  Judges Merritt, Donald, Cole, Clay, Rogers, White, and Stranch dissented. 

The COA framed the issue: "whether the changes created by the [Fair Sentencing] Act apply to defendants sentenced five years before the new law took effect." 

Conclusion: "Consistent with a 142-year-old congressional presumption against applying reductions in criminal penalties to those already sentenced, 1 U.S.C. 109, consistent with the views of all nine Justices and all the litigants in Dorsey v. United States, 132 S. Ct. 2321, 2332 (2012), consistent with the decision of every other court of appeals in the country, and consistent with dozens of our own decisions, we hold that the Act does not retroactively undo final sentences.

As one defendant's custodial sentence has wrapped up and he's now on supervised release, the gov had moved the COA to dismiss his appeal as moot.  The COA found no need to address this issue, as there was no doubt about jurisdiction over at least one of the defendants in the consolidated appeal. 

*The FSA does not apply to those sentenced pre-FSA.
* 3582(c)(2) doesn't get around this prohibition.
* The Constitution can't help either. 

Points of interest:
* One can only get around 1 USC 109 if the statute expressly addresses it or clearly implies overcoming it.  Not present in FSA, which is "forward looking." 
* Distinguishes Dorsey. 
* All the federal courts of appeals have held the FSA does not apply to those sentenced before the FSA went into effect. 
* 3582(c)(2) does not help: these proceedings are not plenary resentencings. 
* Sentencing Commission has said that the amendments apply only to the GLs and do not affect statutory provisions. 
* Equal-protection and cruel-and-unusual arguments under the Constitution fail.  No racially discriminatory purpose, so disproportionate effect allowed to stand. 
* Gov "has a powerful interest in avoiding the disruption of final sentences." 
* 8th Am "is not a ratchet that makes a harsher system of penalties unconstitutional the moment a more lenient one is (prospectively) adopted."  Such a holding might actually discourage lawmakers from lowering sentences. 
* The courts simply lack the authority to lower the sentences here, even if there are policy arguments in favor of lower sentences. 
* Many believe "Congress should think seriously about making the new minimums retroactive."

Judge Moore's Concurrence:
* Agrees with majority's judgment, but has reservations. 
* Sees issues with jurisdiction (the one defendant is now on supervised release).  No "hypothetical jurisdiction" (assuming jurisdiction b/c the ct can easily boot the case on the merits).  Nevertheless, she would deny the gov's motion to dismiss.  Term of supervised release could be reduced if appeal determined favorably, so appeal not moot. 
* 1 USC 109 governs: no retroactivity. 
* Because of limits to 3582(c)(2), constitutionality of sentences not before COA, but challenge under 2255 could/should succeed.  Crack-powder disparity = racial disparity.  And no state treats crack and powder so disproportionately as the federal gov did pre-FSA, so 8th Am problem now. 

I will explore the dissent tomorrow.