U. S. Supreme Court Happenings, Favorable Federal Circuit Opinions for the Week of August 15-19, 2022--

Supreme Court Happenings for the Week ending August 19, 2022 –

The Justices are in summer recess. The new term will start in October 3, 2022 with oral arguments, and their first conference on October 7, 2022.

Favorable Federal Circuit Opinions for the Week of August 15-19, 2022 –

4th Circuit

United States v. Pulley, (No. 19-4726)(4th Cir. August 18, 2022)– Pulley and others operated for around seven years an enterprise known as “Trained to Go” (TTG) within one of West Baltimore’s neighborhoods. Pulley was convicted under § 922(g)(1), which makes it unlawful to possess a weapon for “any person” “who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year.” 18 U.S.C. § 922(g)(1). Even Pulley’s indictment itself calls the § 922(g)(1) count “Felon in Possession of a Firearm.”All of Pulley’s prior crimes were state-law misdemeanors. As such, Pulley argued even though he technically falls within the statutory prohibition, he did not know his relevant status as required by Rehaif and Greer at the time he committed the offense. The Court reversed Pulley’s § 922(g)(1) conviction, vacated the judgment as to him, and remanded for further proceedings consistent with its opinion.

5th Circuit

United States v. Harbarger, (No. 21-40332)(5th Cir. August 18, 2022)– Harbarger was convicted of illegally possessing an unregistered firearm, specifically a “destructive device,” under the National Firearms Act (“NFA”). See, e.g., 26 U.S.C. §§ 845(a), 5861(d). Appealing his conviction, Harbarger argued the evidence was insufficient to support his conviction. The determinative issue in this appeal was whether an explosive containing device falls within the NFA when it is susceptible of both innocent and destructive uses and not clearly designed as a weapon. A destructive device is defined to include “any explosive, incendiary, or poison gas . . . bomb.” But excluded from that definition is “any device which is neither designed nor redesigned for use as a weapon.” In light of the government’s wholly conclusionary case that the bamboo device was designed as a weapon or that it had no benign or social value, the conviction cannot stand. The evidence was insufficient to prove that the bamboo stick was an illegal explosive device “designed” as a weapon. Accordingly, the judgment of conviction was reversed.

9th Circuit

Crespin v. Ryan, (No. 18-15073)(9th Cir. August 19, 2022)– The panel affirmed the district court’s grant of a conditional writ of habeas corpus to Freddie Crespin, who in 1995 was charged in Arizona with first-degree murder committed when he was sixteen years old. Because the Supreme Court had not yet held that the death penalty could not be imposed on defendants younger than eighteen when the crime occurred, Crespin faced a possible capital sentence if convicted. To avoid that possibility, he entered into a plea agreement under which he agreed to a sentence of life without the possibility of parole (LWOP). In Miller v. Alabama, 567 U.S. 460 (2012), the Supreme Court held that the imposition of LWOP for those convicted of a crime committed while under the age of eighteen violated the Eighth Amendment. Crespin filed a 28 U.S.C. § 2254 habeas corpus petition. While that petition was pending, the Supreme Court held in Montgomery v. Louisiana, 577 U.S. 190 (2016), that the Miller rule was retroactive. The district court then granted the conditional writ. Crespin’s guilty plea did not waive his ability to collaterally attack the constitutionality of his LWOP sentence, as Crespin was unaware of the Eighth Amendment right announced in Miller when he entered into the plea agreement, let alone that he could not be sentenced to death under the not-yet announced rule in Roper v. Simmons, 543 U.S. 551 (2005). The panel concluded that there was at least a reasonable possibility that a sentencing proceeding conducted in accordance with Miller’s requirements would result in a non-LWOP sentence. The Court affirmed the district court grant of the writ.

United States v. Carter, (No. 19-10411)(9th Cir. August 17, 2022)--The panel vacated the district court’s order granting in part and denying in part Carter’s motion to be resentenced under the First Step Act of 2018, and remanded. The panel wrote that Concepcion v. United States, 142 S. Ct. 2389 (2022), has three holdings relevant here: (1) that the First Step Act allows district courts to consider intervening changes of law or fact in exercising their discretion to reduce a sentence; (2) that because district courts must consider nonfrivolous arguments presented by the parties, the First Step Act requires district courts to consider intervening changes when parties raise them; and (3) that district courts ruling on First Step Act motions bear the standard obligation to explain their decisions, and accordingly must give a brief statement of reasons to demonstrate that they considered the parties’ arguments— including arguments pertaining to intervening changes in law or fact. Applying Concepcion’s principles, the panel held that the district court erred by granting in part and denying in part Carter’s resentencing motion with no explanation whatsoever, where Carter raised intervening legal and factual changes to support the sentence reduction that he requested.

United States v. Rodriguez, (No.21-50108)(9th Cir. August 17, 2022)– Vacating a sentence and remanding for resentencing in a case in which Rodriguez was convicted of importing methamphetamine into the United States, the panel held that the district court, which denied Rodriguez a minor-role adjustment, erred in analyzing whether to apply the adjustment. The panel started by correcting two legal errors that appear to have infected all of the district court’s analysis. First, the district court incorrectly held that Rodriguez’s recruiter’s culpability was not relevant to the minor-role analysis. Second, the district court appeared to treat each factor in the mitigating-role analysis as presenting a binary choice, but the commentary to § 3B1.2 instructs courts to analyze the degree to which each factor applies to the defendant. The panel explained that when applying it, a district court must examine the defendant’s knowledge of the scope and structure of the criminal enterprise. On remand, the district court should examine the degree to which Rodriguez knew of the scope and structure of that organization. The second factor is the degree to which the defendant participated in planning or organizing the criminal activity. Holding that the district court’s interpretation of this factor was erroneous, the panel explained that one who simply receives instructions and follows them does not “plan” or “organize” the crime. The fifth factor is the degree to which the defendant stood to benefit from the criminal activity. The panel wrote that the district court’s holding—that this factor weighed against Rodriguez because $1,500 “is not an insubstantial amount of money.” The panel noted that the district court did not consider that Rodriguez was to be paid a fixed amount to perform a discrete task, that he did not have a proprietary interest in the drugs, and that the amount he was to be paid was relatively modest compared to the value of the drugs.

10th Circuit

United States v. Piette, (No. 20-7008)(10th Cir. August 18, 2022)– A jury in the Eastern District of Oklahoma convicted Henri Piette of kidnapping. The district court sentenced Piette to life imprisonment on the former conviction and 360 months’ imprisonment on the latter. The Court concluded that the district court plainly erred by misallocating the burden of proof once Piette disputed the timing of the kidnapping by arguing that the victim consented. If she had consented, the kidnapping would have been over, and the statute of limitations would have begun to run, potentially rendering the indictment untimely. The Court reversed Piette’s kidnapping conviction because there is a difference between what happened here—Piette failing to prove by a preponderance of the evidence that McGinnis ever consented—and what the Constitution requires: the government proving beyond a reasonable doubt that she never consented at a time that would cause a statute of limitations problem.

United States v. Price, (No. 21-7050) (10th Cir. August 17, 2022)– Joshua Price Jr. appealed the district court’s dismissal of his motion for a sentence reduction pursuant to the First Step Act of 2018. Under the First Step Act, a district court may reduce a prisoner’s sentence if the prisoner was convicted of an offense covered by the Fair Sentencing Act, a 2010 law that changed the sentencing provisions for certain drug offenses. The parties agree that Price is eligible for a sentence modification because he was convicted of a covered offense: distribution of cocaine base under 21 U.S.C. § 841. In 1998, the sentencing court determined Price’s sentence length by applying a cross reference for first-degree murder under the then-mandatory United States Sentencing Guidelines. The resulting life sentence exceeded the Sentencing Guideline calculation for his cocaine and firearms offenses. This cross reference used the Guideline calculations from a non-covered offense, murder, but the enhancement derives from Price’s covered conviction for drug distribution. Our precedent says that if the length of a prisoner’s sentence is determined by a concurrent non-covered offense, and that sentence exceeds the length of the covered offense, then the prisoner does not have constitutional standing for a sentence modification. The Court concluded that the district court has discretion to reduce Price’s overall sentence. Price was convicted of violating a covered offense and was sentenced to life by a Guideline cross-reference to a non-covered offense. But Price was not convicted of murder; that crime only increased his sentence for the cocaine offenses. Since Price’s sentence was entirely driven by the drug offenses, he is eligible for a sentence modification. And nothing prevents the district court from reviewing the murder cross reference in considering his sentence under the now-advisory Sentencing Guidelines. Since no statutory mandatory minimum applies for the murder cross reference, during sentence modification the court is entitled to apply the traditional sentencing factors under 18 U.S.C. § 3553(a). In sum, because a sentence reduction is possible, the Court found that Price has standing for a sentence modification under the First Step Act. The Court reversed the district court and remanded for further proceedings.

Latest Bureau of Prison’s Statistics (From BOP Website):

Fair Sentencing/Retroactive Sentence Reductions 3,930 Orders Granted to date.
Elderly Offender Home Confinement 1,196 Approved to date.
Compassionate Releases/Reduction in Sentences 4,255 granted to date.

COMMENT:

Anyone who believes they may have a Taylor, Concepcion, Ruan, Bruen, Earned Time Credit problems or any other claim you believe you may have relief coming for or just want to see if we can find something should opt for a written case review.

A much better week for favorable cases in the federal circuit courts. There were 6 new compassionate release motions granted this week. There are also several Fair Sentencing Act motions for reduction of sentence motions being granted weekly. Anyone who thinks that they may qualify for compassionate release or any other part of the First Step Act should request a Written Case Evaluation. There are still a number of contexts besides Covid available for compassionate release. For the last 27 years, we have also been very successful on direct appeals, 2255 motions and 2241 Petitions, First Step Act, Compassionate Release Motions, DC Superior Court, State Post Conviction, Clemencies, Parole Packages. We also can help you with Earned Time Credits and other specialized motions.

If you are serious about fighting your case and want us to evaluate your case to see if you may have relief coming, request a Written Case Evaluation.