NEWSLETTER June 11, 2021
Welcome to the weekly edition of our newsletter. Please note that this email address ([email protected]) is only for the newsletter; if you are interested in hiring our law firm, please use [email protected] (prisoner emails accepted).
VIEWS ON THE LAW:
Congress Giveth, the BOP Taketh Away
Criticizing a November 2020 proposed BOP rule that would severely limit earned time credits (ETC) under the First Step Act, a recent letter by some senators to the Attorney General complained that the rule would effectively kill any incentive for prisoners to better themselves while in prison. Maybe you’ve seen the letter making its rounds through the prisons.
The First Step Act, enacted on December 21, 2020, says federal prisoners may obtain ETC for “participating” in approved programs. While ETC doesn’t reduce a sentence, it allows more halfway house time, which translates into being back on the street sooner. In allowing for ETC, Congress wanted to provide an incentive for prisoners to take programs it believes will reduce recidivism. But the BOP’s job is to keep people in prison, and that’s what the proposed rule would do. The senators are saying the BOP is defeating the whole purpose of ETC with this rule.
The letter highlighted several things about the BOP’s rule that would make ETC worthless. The first is that the BOP would require 240 hours of programming to earn 10 days of ETC because it defines a “day” as 8 hours of programming, and it takes 30 days of programming to earn 10 ETC days. That’s “nearly impossible,” the senators say. Losing ETC is too easy while earning it back is too hard. Violating BOP rules or not fulfilling an ETC program could result in a loss of 30 days of ETC. That’s 720 hours of programming lost. To be considered for restoration of lost credits requires clear conduct for at least 4 years, more time than most prisoners who qualify for ETC have left to serve.
The senators also slammed the BOP’s rule for not crediting programs taken before January 15, 2020, and requiring that prisoners complete the programs to get full credit. The First Step Act only requires “participation” in the programs, not completion. Congress didn’t say anything about a later effective date other than the date of enactment, the senators pointed out.
So, why did the senators send this letter to the AG instead of the BOP? One reason is that the BOP is under the AG’s Office as part of the DOJ. But writing to the AG won’t get you or your family any play. The AG isn’t an elected position and cares nothing about what the public thinks. Those in Congress, however, are elected and care what people (voters) think. And Congress controls the money going to the AG’s office, which can pressure it to take action. So write to Congress, not the AG.
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There was some disturbing news this week that the FBI had served a subpoena on USA Today for details on readers who accessed a story on its website about FBI agents being killed in a botched raid in FL earlier this year. However, the newspaper didn’t cave in and instead exposed the FBI’s move, calling it “a clear violation of the First Amendment” and asking the federal court to quash it. They also argued that the FBI didn’t follow its policy on subpoenaing private records from the press. The FBI dropped the subpoena the next day.
Yes, you read that right: The DOJ has a policy that allows agencies to compel the media to disclose information about who reads the stories it publishes that criticize the government. Though it sounds like something you’d hear about in a communist country with state-run media, it’s a practice by the DOJ that has gone on for years. For example, when the media criticized the Trump Administration a few years back about Russia, the president ordered the DOJ to obtain personal information on reporters from CNN, the Washington Post, and the NY Times. While the practice continued into the Biden Administration, he called it “simply wrong” and vowed to end it. But that doesn’t stop future administrations from reviving the practice.
One media source not silenced by these threats is Prison Legal News and Criminal Legal News magazines. They’ve been reporting on government abuses in the prisons and court decisions affecting prisoners for years. Brandon and some of the staff at the firm have been writers for these magazines over the years and agreed to help support their efforts. Currently, they are offering PLN for just $1 and CLN for $3 for 6 months each (new subscribers only). Contact them at 561-360-2523 or PO Box 1151, Lake Worth, FL 33460.
CASES OF THE WEEK
There’s been some talk about a case out of the 11th Circuit that might do away with FL’s drug trafficking offense for use under the ACCA. In United States v. Conage, 976 F.3d 1244 (11th Cir. 2020), the court faced a challenge that because trafficking under 893,135 includes purchase, which may not involve possessing the drugs, it doesn’t involve possession with intent to distribute drugs as a predicate offense under the ACCA. The court then certified this question to the FL Supreme Court: How does Florida law define the term “purchase” for purposes of Florida Statutes 893.135(1)?
The court did this because it applies federal law when interpreting the ACCA but state law when interpreting the elements of a state prior conviction. That’s because the court reasoned that state law is what the state supreme court says it is. So, if the FL Supreme Court says that purchasing drugs under 893.135 necessarily includes possessing them, the 11th Circuit says that a prior 893.135 qualifies under the ACCA. If not, then a prior 893.135 conviction never qualifies under the ACCA.
A straightforward reading of the court’s 41-page opinion shows more potential problems with this desire to salvage 893.135 as an ACCA predicate. The court says that purchase is an “element” of 893.135, yet it has held in the past that the six different ways of violating 893.135 (including purchasing drugs) are not elements of the offense. The 11th Circuit searched for FL jury instructions on what the state had to prove to convict of “purchase” under 893.135 and found none. Why? Because if the purchase is merely one way to violate 893.135, then a jury wouldn’t be tasked with identifying this. Juries are tasked with only finding whether the prosecutor has proved the defendant’s conduct matched the elements of the offense, not the various ways the crime could be committed.
Considering the Supreme Court’s decision in Mathis v. United States, 136 S. Ct. 2243 (2016), this may not be the end of the story if the FL Supreme Court agrees with the 11th Circuit that purchase also includes possession. This case will have big implications in the 11th Circuit because more ACCA sentences are handed down in that circuit than in any other circuit.
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In United States v. Parks, 2021 U.S. App. LEXIS 12424 (D.C. Cir. 2021), the court found that counsel’s failure to catch a PSR error that resulted in a higher supervised release term was “plain error,” as well as IAC under Strickland. It was a case about a defendant who recruited adult women on social media to work as prostitutes until one of them turned out to be an undercover FBI agent. He pled guilty and got 2 years in prison plus 6 years of supervised release. The error was that the district court relied on the PSR that said a supervised release term of 5 years to life was required under the Guidelines. But that harsh term only applies to sexual-based offenses involving minors, one of the steep punishments Congress put in place under the PROTECT Act of 2003 to punish sexual abuse of children. Counsel never objected to the error, so the court of appeals reviewed for plain error and found (1) that counsel was ineffective and (2) that this affected the defendant’s “substantial rights.”
Usually, plain error focuses on errors the court made, not counsel; IAC claims are typically saved for a 2255 motion. But, in an interesting twist, the court assessed the error under the Strickland IAC standard. It concluded that it was plain error because IAC caused the district court to impose an above-guideline sentence.
QUESTIONS AND ANSWERS
Some of this week’s questions were combined since they were related, and the answers covered multiple questions.
Q: Who determines whether an offense is “nonviolent” to qualify under Elderly Offender Home Detention (EOHD)?
A: The answer to this question, and what other offenses are disqualified under the EOHD, can be found under the Second Chance Act of 2007, codified at 34 U.S.C. 60541(g)(5)(A). It says that a “crime of violence” to exclude someone from EOHD is defined under 18 U.S.C. 16(a), which requires that the instant offense (not a prior offense) must have “as an element the use, attempted use, or threatened use of physical force” against a person or their property. Note that the so-called residual clause under sec 16(b) was declared unconstitutional by the Supreme Court in Sessions v. Dimaya, 138 S. Ct. 1204 (2018), so be sure to consider only case law decided after 2018 when researching whether your offense fits this description.
Q: Doesn’t the Safer Detention Act include good conduct time when calculating someone’s sentence for EOHD?
A: If the SDA becomes law, it says that good conduct time is counted toward whether someone has served half their sentence for EOHD (the bill would reduce the required time from two-thirds to half the sentence imposed). But that’s a big “if.” The SDA is still just a bill making its way through Congress. As explained in our June 8 newsletter, the Senate committee approved the bill and would now be scheduled for a vote by the full Senate. It is NOT even close to becoming an actual law … yet.
Q: Can the court bump up my base offense level to 38, under USSG 2D1.1(a)(2), if death resulted from the drugs I admitted to possessing but wasn’t part of the conviction?
A: This is an excellent question because it exposes an easily overlooked distinction in the Guidelines between the “offense of conviction” and offense conduct in general (or “relevant conduct) for sentencing. While it’s true that a sentencing judge may consider a defendant’s conduct in uncharged/unconvicted conduct, this doesn’t apply to a court’s calculation of the base offense level. Under USSG 2D1.1(a)(2), the base offense level is 38 when “the offense of conviction establishes that death or serious bodily injury resulted from the use of the substance.” This “offense of conviction” language is narrow and means only the conduct that made up the elements of the offense. It cannot include relevant conduct found by the judge.
That’s about it for this week. As always, your questions and comments are greatly welcome, and we hope you got something out of this newsletter. After all, it is indeed your newsletter!
Brandon Sample, PLC
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