July 2, 2021: Borden and § 924(c), AEDPA at 25, and Home Confinement in Limbo

In July 2021, people serving § 924(c) gun sentences were asking whether the Supreme Court's Borden decision could help them. Meanwhile, AEDPA's limits on habeas corpus turned 25, and nearly 5,000 people on CARES Act home confinement still didn't know if they would go back to prison. This post covers each issue, along with a Fourth Circuit crack cocaine decision and some common questions.

Update (October 2026): This post is from July 2021. Several points have changed since then, and we note each one below.

Views on the law

Borden and § 924(c)

When the Supreme Court narrows one criminal statute, people ask whether the same reasoning applies to similar statutes. In Borden, the Court held that a prior conviction for reckless conduct cannot count under the Armed Career Criminal Act (ACCA). What about § 924(c) cases? Section 924(c) adds prison time for using a gun during a crime of violence. Its "elements clause" uses the same words as the ACCA's, plus force against property.

Before Borden, courts relied on Voisine v. United States, 579 U.S. 686 (2016). Voisine held that "use of force" in a different gun statute includes reckless conduct. Courts applied that to the ACCA and to § 924(c). For example, United States v. Mann, 899 F.3d 898 (10th Cir. 2018), held that because it had already applied Voisine to the ACCA, it also applied to § 924(c). "Reckless conduct is no less the volitional use of physical force against the person or property of another for purposes of 18 U.S.C. 924(c)(3)(A)," the court said.

Borden held that Voisine does not control the ACCA. In 2021 it was too early to tell how Borden would affect § 924(c). But it looked like a real path to relief for people whose § 924(c) sentences rest on crimes that can be committed recklessly.

Update: In January 2022, the Tenth Circuit overruled Mann on this point after the Supreme Court sent the case back in light of Borden.

25 years of AEDPA: where do we stand?

(Adapted from an article by Dale Chappell in the July 2021 issue of Prison Legal News, used with permission.)

The Antiterrorism and Effective Death Penalty Act (AEDPA) turned 25 on April 24, 2021. AEDPA is the law that limits habeas corpus, which is the way a prisoner asks a court to throw out an unlawful conviction or sentence.

So where do we stand? Scholars who have weighed in largely agree that AEDPA was not needed, at least not to stop prisoners from challenging their convictions and sentences. The Supreme Court already had a handle on the problem of endless appeals. It had set its own rules through decisions limiting abuse of habeas corpus.

A Supreme Court decision binds all federal courts, but it is not set in stone. In each decision limiting habeas corpus, the Court left lower courts some room to bypass the rules when relief was needed. When Congress wrote those limits into AEDPA as rules courts must follow, it took that room away.

Why Congress applied AEDPA's limits to all prisoners remains a mystery. Most of the little legislative history there is centers on speeding up death penalty cases. The one-year filing deadline that now applies to everyone was a last-minute addition. It had no basis in earlier Supreme Court decisions, and most scholars agree it was not needed.

Before AEDPA, courts used a doctrine called laches. A court could dismiss a late petition only if the delay hurt the government's case. In an unexpected result, AEDPA's deadline actually increased filings. Prisoners rush to file within a year so they are not shut out forever. That forces courts to deal with "kitchen-sink" motions that raise every possible claim, wasting even more court time.

AEDPA also built steep procedural barriers, and nearly all prisoners face them without a lawyer. Habeas cases often turn on getting past these procedural bars, and courts rarely reach the actual claims. The bars give prosecutors an easy way to defeat a motion, no matter how serious the constitutional problem. After AEDPA, courts no longer have the discretion to look past those bars as they could when the rules were only judge-made. So constitutional errors get overlooked. Because of these bars, the article reports, fewer than one half of one percent of prisoners who seek this relief in federal court succeed.

The home confinement debate

Almost 5,000 federal prisoners had been sent home under the CARES Act to lower their risk from COVID-19. A Trump-era Justice Department memo said they would have to return to prison when the emergency ended. In 2021, the Biden administration had not settled the issue, saying it would cross that bridge when it got to it. In our view at the time, there was no good explanation for that. Members of Congress wrote a joint letter to Attorney General Garland, and advocates spoke out about the administration's failure to act for people left in limbo.

Holly Harris, president and executive director of the Justice Action Network, made what we thought were strong points to The Hill:

The timidity with which the Biden Administration has handled the home confinement issue is everything people dislike about politics. They don't want someone to stick his thumb in the air to see which way the wind is blowing. They want strong leadership. ... At this point, the president just needs to grant the clemency and let them move on. They are out because the Trump Administration felt it was safe enough to let them go home. What more cover does [Biden] need?

Update: In April 2023, the Justice Department issued a rule letting the Bureau of Prisons keep these people at home for the rest of their sentences (BOP notice). On December 12, 2024, President Biden signed a commutation for people who had been moved to home confinement under the CARES Act (Justice Department notice).

Crack sentences above the new maximum: United States v. Collington, 995 F.3d 347 (4th Cir. 2021)

The First Step Act made the Fair Sentencing Act of 2010 (FSA) retroactive for crack cocaine cases. Judges have discretion in deciding these motions. But the Fourth Circuit held that the purpose of the First Step Act limits that discretion and requires the judge to grant relief when someone qualifies and the sentence is now above the legal maximum.

Mr. Collington got 30 years for a crack offense. Four months later, the FSA lowered the maximum for his offense to 20 years. But the FSA did not apply to past cases, so his sentence stood.

In 2018, the First Step Act made the FSA retroactive. The district court agreed Mr. Collington qualified but refused to lower his sentence. It pointed to the 30-year term in his plea deal and said "nothing required the court to reduce" it.

The Fourth Circuit reversed. Pointing to Congress's purpose, it held that a district court may not ignore a sentence that is now illegal for someone who qualifies. The court wrote: "We instead hold that the district court's overall sentencing authority is constrained by the retroactively applicable statutory maximums in [21 U.S.C. 841], such that the district court abused its discretion in letting stand a sentence that was made illegal under the First Step Act."

The court also explained why the First Step Act mattered:

The First Step Act, although modest in scope, represents an attempt by Congress to remedy an unjust sentencing structure for crack cocaine offenses. To do so, it made the [FSA's] reduced statutory maximum sentences retroactively applicable to those sentenced under an outdated, harsher sentencing scheme. That change reflects Congress's more compassionate approach to drug sentence and its rejection of sentences above that range .... This is not a case in which a district court retained a sentence that would be permissible under the [FSA], but instead a case in which the district court left in place a sentence that exceeds the maximum permissible sentence by a decade. To affirm such a decision, this Court would have to turn its back not only on this Court's understanding of the First Step Act but also our background sentencing principles.

The court vacated the denial and sent the case back for a sentence that "comports" with the First Step Act.

Update: In Concepcion v. United States, 597 U.S. 481 (2022), the Supreme Court held that judges may consider later changes in law and fact in these motions but are not required to reduce a sentence. Later Fourth Circuit cases have discussed how Concepcion affects Collington. Check current law before relying on it.

Questions and answers

Q: Did Borden change whether Hobbs Act robbery is a crime of violence?

A: Borden could affect crimes used for § 924(c)'s elements clause. Hobbs Act robbery is often one of them. Whether Borden changes anything for Hobbs Act robbery is an interesting question. The statute does not expressly require a purposeful or knowing state of mind as an element, but courts have assumed it does. Would Borden's reasoning, which makes a purposeful or knowing state of mind required for these repeat-offender enhancements, disqualify Hobbs Act robbery? It could be a worthy challenge for someone to raise.

Update: In United States v. Taylor, 596 U.S. 845 (2022), the Supreme Court held that attempted Hobbs Act robbery is not a crime of violence under § 924(c)(3)(A).

Q: Do the First Step Act's Section 404 reductions apply only to crack cases?

A: Yes. Section 404 of the First Step Act made the FSA's crack changes retroactive, so crack has to be part of the offense. Courts have held that other drugs can be involved too, as long as crack was part of it. See United States v. Taylor, 982 F.3d 1295 (11th Cir. 2020); United States v. Gravatt, 953 F.3d 258 (4th Cir. 2020). Also, in Terry v. United States (2021), the Supreme Court held that crack offenses under 21 U.S.C. § 841(b)(1)(C) do not qualify.

Q: Is there a form I have to use to file a § 2255 motion?

A: Yes. A § 2255 motion asks the judge who sentenced you to throw out or fix the sentence because something went wrong. Under the rules for these motions, your motion must substantially follow the official form or a local court form. Most courts require you to use the form. If you file a motion without it, the court may still accept it, but it might require you to refile on the form. The court clerk must give you the form for free. There is no filing fee.

Keep the deadline in mind, too. Under 28 U.S.C. § 2255(f), you generally have one year to file, usually counted from the date your conviction became final. A few other events, like a new Supreme Court decision that recognizes a new right, can start a new one-year clock.

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