U. S. Supreme Court Happenings, Favorable Federal Circuit Opinions & Other News for the Week of December 12-16, 2022--

Supreme Court Happenings for the Week ending December 16, 2022 –

The Justices will not have any conferences until next year.

Favorable Federal Circuit Opinions for the Week of December 12-16, 2022 –

9th Circuit

United States v. Wells, (20-30009) (9th Cir. December 14, 2022)– The panel vacated the district court’s restitution order, and remanded for further proceedings. In ordering Wells to pay $1,921,640 in restitution pursuant to the Mandatory Victims Restitution Act (MVRA), the district court determined that restitution should be paid using 80% of the monthly payments from his retirement and disability benefits. Wells claimed that under provisions of the Consumer Credit Protection Act, 15 U.S.C. § 1673, that are incorporated into the MVRA, his retirement and disability benefits constitute “earnings,” which cannot be garnished more than 25%. The district court concluded it had discretion under the All Writs Act to order garnishment of a higher percentage of the monthly payments. The panel held that because the MVRA creates specific statutory requirements for garnishing earnings, the All Writs Act cannot be used to sidestep those requirements. The panel vacated the restitution order and remanded for the district court to determine whether each of Wells’s benefit payment streams constituted “earnings” under § 1673; if so, the MVRA limited garnishment of those funds to 25%.

OTHER NEWS

U. S. Attorney General Garland Releases New Federal Charging Guidelines That Include Instructions to Treat Crack like Powder Cocaine –

Attorney General Merrick Garland on Friday instructed federal prosecutors to end sentencing disparities in cases involving the distribution of crack and powder cocaine after decades of law enforcement policy disproportionately treating crack offenders more punitively. Garland’s move effectively seeks to eliminate the significant difference in the amount of powder cocaine relative to crack cocaine that is required to be in a suspect’s possession to trigger mandatory minimum federal sentences if convicted.

Critics of the longtime policy have said it is a relic of the Washington’s misguided war-on-drugs era that targeted Black and Brown communities, resulted in overpopulated prisons and strained federal and local resources at the expense of more effective strategies. Proponents of treating crack dealers more punitively have said that form of the drug is faster acting and capable of producing more intense highs. Under current federal policy, possession of 28 grams of crack cocaine would trigger a mandatory minimum prison sentence of five years, compared to 500 grams of powder cocaine.

Garland’s memo to the nation’s U.S. attorneys directs prosecutors to charge “pertinent statutory quantities that apply to powder cocaine” when pursuing crack cases and to “advocate for a sentence consistent with powder cocaine rather than crack cocaine.” The move, long sought by civil rights advocates, comes as the Equal Act, a legislative bill that would eliminate the disparity, has been stalled in the Senate amid objections from some Republicans after passing the House last year with bipartisan support.

Joe Biden, then a U.S. senator from Delaware, crafted the 1986 crime bill that initially set a 100-to-1 ratio between powder and crack cocaine to trigger mandatory minimum sentences. The Fair Sentencing Act 0f 2010 reduced the ratio to 18-to-1. The Biden administration endorsed the Equal Act last year....

Garland’s memo cited Justice Department testimony last year to the Senate Judiciary Committee that such a disparity “is simply not supported by science, as there are no significant pharmacological differences between the drugs: they are two forms of the same drug, with powder readily convertible into crack cocaine.”

During his confirmation hearing in February 2021, Garland told Sen. Cory Booker (D-N.J.), a co-sponsor of the Equal Act, that the inequitable sentencing in crack and powder cocaine cases had a “disparate impact on communities of color.” “There’s no justification for this, and we should end this,” Garland said at the time. He also said that powder cocaine “is as dangerous with respect to crime rates as crack cocaine, both of which have now been unfortunately overtaken by fentanyl and the opioids. But both of those are bad problems [and] equalizing penalties for crack and powder should have no difference with respect to our ability to fight violent crime.”

Garland aides said the new guidelines, which will take effect within 30 days, are part of a broader set of changes the attorney general is making to the Justice Department’s charging policies. The department under Garland continues to support the passage of the Equal Act, aides said; unlike a legislative change to federal policy, they noted, Garland’s memo would not retroactively apply to previous convictions.

Jim Pasco, executive director of the National Fraternal Order of Police, said in an interview that he supported Garland’s directive. Though the group has opposed eliminating the sentencing disparity in the past, and it did not take a position on the Equal Act, Pasco said the police union’s views have evolved “as there’s been more clarity around the science.” Pasco said the Biden administration has supported police with additional resources to fight a rise in violent crime, and the union does not believe the policy changes on cocaine sentencing will adversely affect the efforts of law enforcement.

Garland’s action could face blowback from Republicans who have championed a bill that would reduce the sentencing disparity but not eliminate it entirely. In April, Sens. Charles E. Grassley (Iowa), Mike Lee (Utah), Roger Wicker (Miss.) and Lindsey O. Graham (S.C.) proposed legislation that would reduce the ratio of powder-to-crack cocaine that would trigger mandatory minimum sentences to 2.5-to-1. Unlike the Equal Act, however, that bill would achieve greater parity in part by increasing penalties for powder cocaine users.

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

Fair Sentencing/Retroactive Sentence Reductions 3,972 Orders Granted to date.
Elderly Offender Home Confinement 1,216 Approved to date.
First Step Act Releases 11,294 granted to date.
Compassionate Releases/Reduction in Sentences 4,370 granted to date.

COMMENT:

Not much love from the circuit courts this week, but the news from U. S. Attorney General Garland is sure good news. Anyone who believes they may have a Taylor, Concepcion, Ruan, Bruen, Earned Time Credit or any other claim you believe you may have relief coming for or just want to see if we can find something that will gain you relief should opt for a Written Case Evaluation. The evaluation is an excellent tool to see what can be done for you at any stage of the proceedings.

There were 4 new compassionate release motions granted this week and 1 other was granted relief for the Fair Sentencing Act/Retroactive Sentence Reductions.

Anyone who thinks that they may qualify for compassionate release or any other remedy should request a Written Case Evaluation (we no longer offer Free Lookups). For the last 28 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 and Pardons, and Parole Packages to mention a few avenues for relief. 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.